author: HOFFMAN, Judge: MONTEMURO, Judge,

text:
    466 A.2d 1349
    Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. CITY OF PHILADELPHIA and William Smith and Srein Furniture Carriers, Inc. (Five Cases) Appeal of William SMITH and Srein Furniture Carriers, Inc. (Three Cases) Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. William SMITH and Srein Furniture Carriers, Inc., Appellants. Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. COMMONWEALTH of Pennsylvania. (Four Cases) Appeal of SREIN FURNITURE CARRIERS, INC., and William Smith. Appeal of CITY OF PHILADELPHIA. (Six Cases) Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. William SMITH and Srein Furniture Carriers, Inc. (Three Cases) Appeal of COMMONWEALTH of Pennsylvania. (Two Cases) Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. COMMONWEALTH of Pennsylvania, Appellant. Joan G. THOMPSON, Administratrix of the Estate of Raymond D. Thompson, Deceased v. William SMITH and Srein Furniture Carriers, Inc., Appellant.
    Superior Court of Pennsylvania.

      Argued May 12, 1982.
    Filed Sept. 2, 1983.
    Reargument Denied Nov. 14, 1983.
    Petition for Allowance of Appeal Granted Feb. 23 & 27, 1984.

      Michael W. Bolechowski, Deputy Attorney General, Philadelphia, for Commonwealth, appellant (at Nos. 2656, 2654 and 2655) and for Commonwealth, appellee (at Nos. 2298, 2301, 2653 and 2659) and for Commonwealth, participating party (at Nos. 2296, 2297, 2299, 2300, 2651, 2652, 2657 and 2658).
    Sandra Mazer Moss, Assistant City Solicitor, Philadelphia, for City of Phila., appellant (at Nos. 2299, 2300, 2301, 2651, 2652 and 2653) and for appellee (at Nos. 2296, 2654 and 2657) and for participating party (at Nos. 2656, 2297, 2298, 2655, 2658 and 2659).
    James M. Marsh, Philadelphia, for appellant (at Nos. 2296, 2297 and 2298) and for appellee (at Nos. 2299, 2300, 2651 and 2652) and for participating parties (at Nos. 2301, 2653).
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

In these appeals from an order granting a new trial solely on the issue of comparative negligence, the parties challenge this court’s jurisdiction, the mootness of the appeal, the lower court’s jury instructions, and the propriety of a grant of a new trial. We find that the appeal is properly before us, and that only the grant of a new trial was error. Accordingly, we reverse and enter judgment upon the jury’s verdict.

On September 28, 1976, William Smith, an employee of Srein Furniture Carriers [Srein], drove his tractor-trailer through a guardrail at the end of the Spring Garden Street exit ramp and plunged onto the westbound lane of the Schuylkill Expressway, crushing the decedent’s vehicle. Plaintiff, decedent’s wife, sued Smith, Srein, the City of Philadelphia, and the Commonwealth in separate actions, alleging Smith’s negligence in driving, Srein’s vicarious liability, and the City’s and Commonwealth’s negligence in marking and maintaining their respective portions of the Expressway and exit ramp. Early during the consolidated trial Smith and Srein [hereinafter Smith] settled with the plaintiff for $400,000, but retained a right of contribution from the other defendants according to the jury’s apportionment of liability. Following trial, the jury awarded damages totalling $500,000 apportioning negligence 30% to Smith, 35% to the City, and 35% to the Commonwealth. Between the verdict and rulings on post-trial motions, the City and Commonwealth settled with the plaintiff for $32,-500 each. In post-trial motions, the City and Commonwealth requested judgment n.o.v., or a new trial, remittitur, and molding of the verdict. Smith opposed and suggested the motions were moot because all defendants had settled with the plaintiff. The lower court denied Smith’s request and granted a new trial solely on the issue of comparative negligence. All defendants then appealed to Commonwealth Court and the City and Smith also appealed to this Court. The Commonwealth Court transferred its appeals to this Court. In response to the Commonwealth’s motion that we quash and re-transfer the appeals, we directed the parties to brief the question of jurisdiction.

The Commonwealth contends that this case should be transferred to the Commonwealth Court. We disagree. Although the Commonwealth Court generally has jurisdiction over civil actions pertaining to the Commonwealth, 42 Pa.C.S.A. § 762, both intermediate appellate courts may, on their own or a party’s motion, “transfer any appeal to the other court for consideration and decision with any matter pending in such other court involving the same or related questions of fact, law or discretion.” Id. § 705. Factors influencing the decision to transfer include: whether the case has already been transferred; whether it involves novel or well-settled questions; whether conflicting lines of authority might develop; and whether transfer would conserve judicial resources. Commonwealth v. 84 Quart Bottles of Bianco DiVerona Wine, 250 Pa.Superior Ct. 544, 378 A.2d 1282 (1977). Valley Forge Industries, Inc. v. Armand Construction, Inc., 248 Pa.Superior Ct. 53, 374 A.2d 1312 (1977). Here, the case has already been transferred once, with attendant delay. Although the question of a grant of a new trial on the issue of comparative negligence is novel in Pennsylvania, the underlying principles of tort law are well-settled and traditionally within this Court’s province. The appeal presents no issues requiring the Commonwealth Court’s special expertise. Moreover, two of the parties, Smith and the City, are undeniably within this Court’s jurisdiction. Accordingly, we retain jurisdiction of this appeal.

Smith contends that the City and Commonwealth’s appellate issues are mooted by the settlements with the plaintiff. Although all defendants have settled with the plaintiff, they dispute the apportionment of liability among themselves. The jury’s apportionment of negligence, as adjudicated in this appeal, will govern the defendants’ percentage of liability in their contribution actions against each other. 42 Pa.C.S.A. § 7102; Slaughter v. Pennsylvania X-Ray Corp., 638 F.2d 639 (3d Cir.1981). To allow the apportionment to stand without reviewing whether the record supports it could substantially prejudice the City and Commonwealth. Moreover, neither affirmance nor reversal of the lower court order would force the plaintiff to relitigate her claims, and thus this appeal does not violate the integrity of the settlements. We therefore address the merits.

The City and Commonwealth argue that the lower court should have granted their motions for judgment n.o.v. because the evidence was insufficient in law to support the verdict. We disagree. In reviewing a trial court’s denial of a motion for judgment n.o.v., the evidence, and all reasonable inferences, must be viewed in the light most favorable to the verdict-winner. Miller v. Checker Yellow Cab Co., 465 Pa. 82, 348 A.2d 128 (1975); Yandrich v. Radic, 291 Pa.Superior Ct. 75, 435 A.2d 226 (1981). So viewed, the evidence establishes that the Commonwealth was responsible for the expressway and exit ramp, and the City, by contract with the Commonwealth, for the T-intersection at the ramp’s end. Smith testified that, while driving his tractor-trailer toward the airport, he saw a sign reading “Airport-South Jersey, Keep Right.” He did that, moved from the right lane to the center lane as a courtesy to another driver, then moved back to the right lane, traveled a short distance, and found himself driving up the exit ramp. He testified he saw no indication that this ramp led to an abrupt T-intersection. He realized the peril only at the last moment and, in attempting a left turn, he hit and broke through the guardrail, then plummeted off the bridge and onto decedent’s vehicle. He testified he was confused by the Commonwealth’s “Keep Right” signs and never saw the City’s stop signs, and he was travelling 40-45 miles per hour. Other testimony detailed the design of the roadway and signs, and expert testimony indicated safer alternatives. Thus, whether the City and Commonwealth were liable along with Smith was a jury question, and judgment n.o.v. was properly denied.

The City contends that the lower court erred in denying its request for binding instructions that it had no duty to construct guardrails to withstand the impact of a negligently driven vehicle. We disagree. For the proposition that no duty exists, the City cites two cases, decided before the advent of comparative negligence, denying recovery to plaintiffs who negligently drove through guardrails. Ault v. Pennsylvania Railroad Co., 381 Pa. 496, 113 A.2d 150 (1955); Yocum v. Town of Bloomsburg, 289 Pa. 512, 137 A. 668 (1927). When these cases were decided contributory negligence principles barred recovery if the plaintiff’s negligence, however slight, proximately contributed to the accident. McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972); Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864 (1961). Under comparative negligence, the plaintiff is barred only if his causal negligence is greater than that of all the defendants combined. 42 Pa.C. S.A. § 7102. Here, nothing indicates any negligence by the plaintiff. Nor can we say as a matter of law that Smith’s negligence in driving was greater than that of the City and Commonwealth in maintaining their respective portions of the roadway. Accordingly, the binding instruction was properly refused.

The City contends next that even if it were negligent in using guardrails and signs, it is not liable because Smith’s negligent driving was a superseding cause. This contention lacks merit. Under Restatement (Second) of Torts, § 447,

An intervening negligent act will not be a superseding cause relieving the original actor from liability if that actor at the time of his negligent act should have realized that another person’s negligence might cause harm; or, if a reasonable man would not regard the occurrence of the intervening negligence as highly extraordinary; or, if the intervening act is not extraordinarily negligent. What the original actor should have realized and what a reasonable man would say was highly extraordinary are, of course, fact questions which must in the majority of cases be left to the jury.

Estate of Flickinger v. Ritsky, 452 Pa. 69, 75, 305 A.2d 40, 43 (1973) (original emphasis). Here, whether the City could have reasonably foreseen negligent operation of a tractor: trailer was a fact question for the jury. Evidence indicated the expressway was heavily travelled and that the City was aware of a more effective guardrail currently used in other states that could have prevented Smith’s vehicle from falling off the bridge. The record supports a jury conclusion that the accident causing decedent’s death was reasonably foreseeable, and thus we cannot rule as a matter of law that Smith’s driving was a superseding cause. Accordingly, the lower court did not abuse its discretion in denying the City’s and Commonwealth’s motions for judgment n.o.v.

The City contends next that the lower court should have reduced its percentage of the verdict rather than ordering a new trial. This contention lacks merit. If a court holds a verdict against the weight of the evidence, the proper procedure is to set aside the verdict and grant a new trial. Interstate Creamery, Inc. v. Reinerth, 212 Pa.Superior Ct. 335, 243 A.2d 451 (1968). A verdict should be molded only when the jury’s intention is clear. Kardibin v. Associated Hardware, 284 Pa.Superior Ct. 586, 426 A.2d 649 (1981); May v. Pittsburgh Railways Co., 209 Pa.Superior Ct. 126, 224 A.2d 770 (1966). Here, the record does not indicate the precise facts the jury relied upon in determining the percentages of liability. To alter the percentages, the court would have had to assume facts not apparent from the verdict, and thus its refusal to reduce the City’s portion of negligence was not an abuse of discretion. Richards v. Dravo Corp., 249 Pa.Superior Ct. 47, 375 A.2d 750 (1977).

Finally, Smith contends the lower court erred in awarding a new trial on the issue of apportionment of negligence. We agree, finding that the record adequately supports the verdict allocating responsibility nearly equally among the three defendants. A court’s decision to grant a new trial because it finds the verdict against the weight of the evidence will be reversed only for an abuse of discretion. Yandrich v. Radic, supra. An abuse of discretion, being more than a mere error of judgment, occurs if the court’s conclusion overrides or misapplies the law, is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will as shown by evidence on the record. Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (1934). Nothing suggests the lower court here acted out of bias, but the court’s order exceeds the limited standards for the grant of a new trial because of the weight of the evidence, and thus misapplies the law.

“The grant of a new trial is proper only when the jury’s verdict is so contrary to the weight of the evidence as to shock one’s sense of justice and make a new trial imperative in order that right may be given another opportunity to prevail.” Yandrich v. Radic, supra, 291 Pa.Superior Ct. at 79, 435 A.2d at 228. A court abuses its discretion if it grants a new trial merely because the court or some other jury would have arrived at ¿ different result. Hummel v. Womeldorf, 426 Pa. 460, 233 A.2d 215 (1967). Rather, there must be evidentiary circumstances or incontrovertible facts of such weight as to convince the court that an injustice has been done. Mapp v. Wombucker, 421 Pa. 383, 219 A.2d 681 (1966). “Where the case is close and the evidence contradictory, the jury must perforce be given freer rein.” Austin v. Ridge, 435 Pa. 1, 6, 255 A.2d 123, 125 (1969).

These same narrow standards for new trial apply in reviewing a jury’s apportionment of negligence under the Comparative Negligence Act. 42 Pa.C.S.A. § 7102. Wisconsin, under a statute similar to Pennsylvania’s, noted that to upset a jury’s apportionment of negligence is a most “unusual” judicial act, Caldwell v. Piggly-Wiggly Madison Co., 32 Wis.2d 447, 145 N.W.2d 745 (1966), and has declared that the jury’s apportionment should be sustained “if there is any credible evidence which under any reasonable view supports the jury’s findings.” Bourassa v. Gateway Erectors, Inc., 54 Wis.2d 176, 179, 194 N.W.2d 602, 604 (1972). Accord Martin v. Bussert, 292 Minn. 29, 193 N.W.2d 134 (1971). The facts of these comparative-negligence cases similarly support the jury’s verdict here. Caldwell v. Pig-gly-Wiggly Madison Co., supra, concerned apportioning liability between a store-owner and a repairman. Both had breached virtually identical duties of leaving a dangerous mechanical doorway unattended and unguarded. The store-owner had only constructive knowledge of the danger. The jury, however, despite the virtually identical duties and without evidentiary support, found the store-owner three times more negligent. Here, by contrast, the jury compared different duties—creating a dangerous condition of land versus negligent operation of a vehicle—thus making the interplay and balancing of facts more sensitive, and arrived at a more balanced result—the three defendants were nearly equally liable, with the landowners combined twice as liable as the driver. In such a case, the court should be reluctant to hold that the jury’s apportionment was arbitrary rather than a reflection of its evaluation of the weight and credibility of the conflicting testimony.

The precedents comparing negligence between landowners and others support such deference. In Warshany v. Supermarkets General Corp., 161 N.J.Super. 515, 391 A.2d 1271 (1978), the court remanded for a new trial because it found a jury’s award of 50% negligence against the landowner who created a dangerous condition to be too low. Here the lower court found a verdict of combined 70% negligence against the landowners to be too high. Although each case depends on its unique facts, such conflicting results would suggest oversupervision of the jury in contravention of our established standards. See Bourrassa v. Gateway Erectors, Inc., supra (upholding jury verdict of 83% negligence against contractor creating unsupported platform).

Here, the jury’s allocation of 30% causal negligence against the truck driver, Smith, was reasonable. Unlike the jury in Austin v. Ridge, supra, which attempted to assess liability against a non-party employer of a truckdriver by holding the driver involved in an accident 0% negligent, thus shocking the judicial conscience and requiring a new trial, the jury here found the driver negligent and substantially liable. Although Smith failed to correctly interpret traffic signs and road conditions, the record shows this error occurred on an unfamiliar, fast-moving, badly-signed highway whose condition, attributable to the other defendants, compounded the consequences of his driving error. Smith heeded the “Airport-Keep Right” signs that, because of the configuration of the lanes and other signs, led him onto the exit ramp. He was certainly negligent in overlooking the exit signs at the bottom of the ramp and the stop signs at the top. However, the roadway design afforded only 340 yards before an abrupt T-turn. The evidence shows Smith was not completely inattentive because he attempted to negotiate the turn and managed to move his truck 18 feet to the left. Unfortunately, his tire struck the curb, and the guardrail failed to restrain his vehicle, which plunged to the roadway below, causing the fatal accident. The jury’s finding Smith 30% negligent, and thus liable for $150,000 of the damages, hardly excuses his driving, and is eminently reasonable in light of the negligence of the other defendants.

For instance, the City of Philadelphia, having responsibility for the T-intersection, could have avoided the fatal consequences, according to expert testimony, simply by using a guard rail design as was used elsewhere on the expressway and at similar intersections in other states. Testimony also indicated that a 12" curb was an appropriate and available safety measure for such turns that could have reduced the risk of a turning vehicle jumping the rail. Moreover, other expert testimony stated that more prominent signing should have been used at this abrupt turn near high-speed traffic. A double-arrow warning sign or flashing lights was suggested to be visible from a greater distance than the ordinary stop signs and more effective in redirecting even an inattentive driver. The record shows Smith did eventually react, and thus that the lack of such warning could be considered a substantial factor in causing the accident. Just as this record supports the jury’s finding of liability against the City for its failure to take any of these readily available and relatively inexpensive precautions to protect against the foreseeable possibility of a negligent driver, Restatement (Second) of Torts, § 447, it also supports the jury’s allocation of 35% of the total causal negligence to the City. We should thus uphold this portion of the verdict.

Finally, the record supports the allocation of liability to the Commonwealth for the overall design of this exit and the misleading signing of the highway. The detailed testimony about the signs’ location and content supports Smith’s allegation and the jury’s finding that the signs directing through-traffic to the airport led Smith onto the exit ramp. An early sign indicated airport traffic should keep right. A later sign before this right-side exit running parallel to traffic said “Airport-Keep Right.” No sign warned that the extreme right lane was for exiting traffic only. A prominent sign near the base of the exit said “Spring Garden Street” without saying “exit” or otherwise indicating that Spring Garden Street did not lead to the airport. These signs all preceded a very short exit from a high-speed roa,d that ended in the abrupt T-intersection. Thus, although two signs at the base of the ramp indicated the exit, the jury could reasonably conclude that the Commonwealth’s signs were negligently inadequate. A driver following the signs could be led to the base of the exit ramp at highway speeds, and if he missed the two signs at the base, would have no warning until it was too late. It is neither shocking to the judicial conscience nor patently unreasonable that a sign system and road design so vulnerable to a momentary lapse of attention could be found 35% liable for this accident. Accordingly, we reverse the lower court’s award of a new trial and enter judgment upon the jury’s allocation of liability. Jurisdiction is not retained.

Reversed.

MONTEMURO, J., files a concurring and dissenting opinion.

MONTEMURO, Judge,

concurring and dissenting:

I dissent from the majority’s reversal of the trial court’s award of a new trial on the issue of comparative negligence but join in the remainder of its opinion. Following a detailed review of the entire record of this case, it is my opinion that a finding of 70% negligence on the part of the City and Commonwealth was unreasonably excessive and grossly against the weight of the evidence. Consequently, I would hold that the trial court did not abuse its discretion in awarding a new trial solely on the issue of comparative negligence.

The record of this case sets forth incontrovertible facts and circumstances of such weight that I am convinced that an injustice has been done. It is clear from the record that, for no apparent reason, Smith, the truck driver, failed to see two large signs that directed traffic, exiting at Spring Garden Street, to bear right. There was undisputed evidence that a speed limit sign that read “Exit, 25 miles per hour” was located at the bottom of the ramp, which Smith also failed to observe. The record further indicates that two thirty inch “STOP” signs were placed at the end of the exit ramp—one on the right side and one on the left side—which Smith, again, testified that he did not see. All signs were boldly printed and in good condition. Despite these warnings, Smith proceeded up the ramp at a speed of 40 to 45 miles per hour, and, while neglecting to apply his brakes, attempted to negotiate a left turn. In doing so, his right tire blew out and his tractor-trailer plunged over the bridge, killing the decedent.

The fact that Smith may have been lost or confused does not excuse his failure to comply with traffic regulations. He had a duty to operate his tractor-trailer in a manner which did not endanger any person or property, 75 Pa.C. S.A. § 3714; to operate his vehicle within the posted speed limit, 75 Pa.C.S.A. § 3361; and to bring his vehicle to a complete stop where official “STOP” signs had been erected, 75 Pa.C.S.A. § 3323.

The majority attempts to distinguish the facts of this case from those in Caldwell v. Piggly-Wiggly Madison Co., 32 Wis.2d 447, 145 N.W.2d 745 (1966) and Warshany v. Supermarkets General Corporation, 161 N.J.Super. 515, 391 A.2d 1271 (1978). The majority indicates that in Caldwell, the duties of each defendant involved were virtually identical as opposed to the instant case wherein the duties of Smith were different from those of the City and the Commonwealth. Similarly, the majority distinguishes Warsha-ny on the ground that in that case the court determined that the jury’s award of 50% negligence against a landowner was too low, whereas, in the case sub judice, the trial court determined that the jury’s award of 70% negligence on the part of the City and Commonwealth was too high. I do not perceive these factual differences as crucial to the determination of whether the jury’s verdict in this case was grossly against the weight of the evidence and, consequently, whether a new trial should be granted on the issue of comparative negligence. Each case depends on its unique facts and the facts of this case indicate that Smith was so flagrantly negligent in the handling of his vehicle that a finding of merely 30% liability on his part shocks my conscience.

I would affirm the order of the trial court granting a new trial on the issue of comparative negligence.

      . Of the $500,000, $400,000 was for the survival action, $100,000 for wrongful death. Upon finding the Commonwealth had not been timely sued for wrongful death, the lower court vacated the Commonwealth’s portion of the $100,000 verdict, reducing the total of damages to $465,000.

      . Development in the state of the art has also eroded the precedent established in Yocum v. Town of Bloomsburg, supra. When that case was decided in the nineteen-twenties, evidence indicated that even the strongest guardrails available could not have withstood the impact of an automobile. At trial here, however, evidence indicated that several states use a guardrail that could have prevented the tractor-trailer from falling off the bridge.

      . Compare 42 Pa.C.S.A. § 7102 with Wis.Stat.Ann. § 895.045. See 1 Pa.LegJ. 1707 (Senate 1976) (legislative history with Sen. Hager remarking that the "Bill comes almost exclusively from the Wisconsin statute. ... It has worked very well in Wisconsin and it is my understanding and my hope that in Pennsylvania it will work the same way.’’) See abo Symposium, Comparative Negligence in Pennsylvania, 24 Villanova L.Rev. 453 (1979).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    466 A.2d 1356
    COMMONWEALTH of Pennsylvania v. Willis Livey MORRIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 28, 1983.
    Filed Oct. 7, 1983.
    Petition for Allowance of Appeal Denied Feb. 2, 1984.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

On October 17, 1980, appellant, Willis Livey Morris, was found guilty of rape, simple assault, and terroristic threats. Post-trial motions were filed and denied. Appellant was sentenced to a period of two to ten years imprisonment on the rape charge. Sentence was suspended on the remaining charges. This appeal followed. We affirm.

Appellant raises five contentions of error on this appeal. They include:

I. The trial court erred in denying appellant’s motion to suppress the victim’s identification testimony.
II. The trial court erred in denying appellant the opportunity to impeach two Commonwealth witnesses with prior inconsistent statements.
III. The trial court erred in refusing to give a Sexton charge to the jury.
IY. Trial counsel was ineffective for failing to request a missing witness charge.
V. The trial court erred and abused its discretion by interrupting sua sponte the closing argument of defense counsel and instructing the jury that the argument was unprofessional and designed to appeal to an improper bias.

The events leading up to appellant’s arrest are as follows:

On May 23, 1980, at 4:45 a.m., 16 year old Margaret Peacock left her home on foot and proceeded to a friend’s house in order to depart on a field trip with her high school band. As she neared the Peabody High School building, in the Shadyside area of Pittsburgh, Margaret observed the presence of someone walking behind her on the same street. She crossed the street and the person gradually drew closer to her. The pursuer broke into a run, and although Margaret began to run she was caught. The pursuer, a man, overpowered her and raped her and at the conclusion of the assault was seen by the victim to run toward East Liberty Boulevard. Jan Fisher, a resident of the neighborhood and an acquaintance of Margaret, was preparing for a fishing trip when he heard noise of the scuffle and left his house to investigate. Mr. Fisher assisted Margaret while Mr. Fisher’s wife called the police. Margaret described her assailant to the police as a black male wearing a light brown leather jacket, tan pants and a knit cap, in his late 20’s or early 30’s, five feet ten inches to six feet tall, average build, and having terrible body odor. This description was broadcast over the police radio system. Two officers in a police van on their way to the scene of the crime observed a man fitting the broadcast description proceeding away from Peabody High School in an erratic manner, with sudden changes of gait and direction. The man was Willis Livey Morris. When the officers stopped to question him they noticed he was perspiring and gave off a strong body odor. Mr. Morris was wearing a tan cloth jacket, grey or light brown pants and a knit hat. The officers in the van asked appellant for identification, searched him, and then transported appellant to the victim. Margaret immediately identified him as the attacker.

Appellant’s first contention of error concerns the trial court’s denial of appellant’s motion to suppress the victim’s on-the-scene-identification. A pre-trial suppression hearing was held on this issue and the court found that the officers who stopped appellant had the authority to transport him to the victim irrespective of appellant’s consent, and that appellant’s arrest was made at the time of his confrontation with the victim. Appellant argues that he was under arrest before he was shown to the victim and that his arrest was illegal.

At the time of the suppression hearing, the law in this Commonwealth permitted as an intermediate response the transportation without consent of a suspect to the scene of a crime for investigatory purposes, Commonwealth v. Lovette, 271 Pa.Super. 250, 413 A.2d 390 (1979). In cases such as this one, the law now requires probable cause to arrest before a suspect can be transported to the scene. Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982). Although in the instant case there is contradictory testimony concerning appellant’s consent to being transported to the victim, we find that regardless of whether consent was given, the officers who stopped appellant had probable cause to arrest. In determining whether probable cause exists, “[t]he crucial test is whether there were facts available which would justify a person of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable perpetrator.” Commonwealth v. Wilder, 461 Pa. 597, 600, 337 A.2d 564, 566 (1975). Here, appellant was in the vicinity of the crime scene and was behaving suspiciously as if he were about to run away upon seeing the police van. (N.T. October 15-17, 1980, p. 149). Appellant matched the general physical description broadcast only minutes earlier, and was wearing a knit cap, tan jacket and light colored pants. When the officers approached appellant, they noticed he was perspiring heavily and had a strong body odor, just as the victim had indicated. “All circumstances surrounding the apprehension can be taken into account in determining probable cause.” Wilder, supra. In the instant case, it is clear from the facts that probable cause existed to arrest appellant before his ultimate identification by the victim.

Appellant also contends that the suggestive nature of the on-scene and preliminary hearing show ups gave rise to a substantial likelihood of misidentification and should have been suppressed. Before identifying the appellant, Ms. Peacock was sitting in the police cruiser and overheard a radio conversation between the arresting officers and the officers present at the scene. The content of this conversation reiterated the description given the victim and caused her to believe that the officers thought they had caught her assailant. In Commonwealth v. Aaron, 255 Pa.Super. 289, 386 A.2d 1006 (1978), this Court held that the proximity in time between the act and the identification weigh heavily on the probative value of the one-on-one confrontation. We have also held that such confrontations which occur on the scene soon after the commission of a crime while the image is still fresh in the victim’s mind may offset the suggestive aspects. See Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1980). Here, Ms. Peacock, observed the appellant for approximately 10 minutes under a street light which was 10 to 20 feet away. The fact that she knew in advance that the police had picked up the man who they believed was the assailant is no more suggestive a factor than in any on-the-scene confrontation.

Appellant complains that there should have been a line-up prior to the preliminary hearing, and that the lack of a lineup increased the possibility of misidentification. However, as the Commonwealth points out the record shows that a lineup was not requested by appellant until moments before the trial. (N.T. October 15-17, 1980, p. 326). The suggestiveness of the preliminary hearing confrontation is only a factor to be considered in determining the reliability of the identification evidence. Commonwealth v. Sexton, 485 Pa. 17, 22, 400 A.2d 1289, 1292 (1979). “[T]he key in determining the admissibility of such evidence is not simply the suggestiveness of the circumstances surrounding the identification but rather the likelihood of misidentification.” Id., 485 Pa. at 22, 400 A.2d at 1291. (quoting Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)) Because there is little, if any, likelihood of misidentification present in the original confrontation between appellant and the victim, we are unpersuaded by appellant’s argument that the preliminary hearing identification was unconstitutional. See generally Commonwealth v. Sexton, supra.

Appellant’s second contention of error regards the trial court’s denial of appellant’s request that a tape be played at trial of the radio conversation between the police officers who were with the victim and the officers who had stopped appellant. Appellant argues that the tape may have impeached the police officers’ testimony as to the sequence of events surrounding appellant’s arrest and subsequent identification at the scene. Aside from the fact that the trial judge considered the tape to be of very poor quality, difficult to hear and understand, the court was of the opinion that the tape had no relevance to trial issues. The trial judge had listened to the tape at the suppression hearing.

The Commonwealth argues that the tape could not have impeached the police officers’ testimony regarding the sequence of events leading up to the identification of appellant by the victim because the officers testified at trial that they were unsure of the exact sequence of events. We agree with the Commonwealth. Although the victim may have been questioned at the scene by the police to get a more accurate description of the assailant, so that the officers who were in the process of stopping appellant would have a more specific description to act on, the officers who testified at trial repeatedly stated that they could not recall the exact sequence of descriptions given over the radio and questions asked of the victim. (N.T. October 15-17, 1980, pp. 100, 101, 107, 108, 137, 138). A party has the right to impeach the credibility of an adverse witness by introducing evidence that the witness made statements inconsistent with his testimony at trial, see Commonwealth v. Brown, 302 Pa.Super. 391, 448 A.2d 1097 (1982). In this case, the tape offered into evidence for impeachment purpose would not have impeached the witnesses’ testimony. The trial court properly refused defense counsel’s request to play the tape.

Appellant’s third argument is that the trial court erred in refusing to give a Sexton charge to the jury concerning the failure of the Commonwealth to afford appellant a lineup. In Commonwealth v. Sexton, supra, the defendant, a minor, was identified for the first time at a pre-trial certification hearing where appellant was the only young black male in the room. Although a timely request for a pre-hearing lineup was made, the request was refused. The Supreme Court ruled that during a new trial the harm from the highly suggestive confrontation at the certification hearing could be cured if the finder of fact is advised that the defendant had been denied the opportunity for a more objective identification and that the subsequent less reliable identification could be viewed with caution. Id., 485 Pa. at 24, 400 A.2d at 1293. The court did not announce a per se rule that all in-court confrontations are inadmissable or that a pre-trial pre-hearing lineup is mandatory in all cases. Id.

In the instant case, we are convinced that the identification evidence against appellant was properly admitted and that the court did not err in refusing to give a Sexton charge to the jury. Aside from the fact that appellant’s request for a lineup made only moments before trial, was untimely, see Commonwealth v. Rose, 265 Pa.Super. 159, 401 A.2d 1148 (1979), our reasons for disposing of appellant’s first contention of error adequately demonstrate that the original identification of appellant was not made in an impermissibly suggestive manner.

Appellant next complains that trial counsel was ineffective for failing to request a missing witness charge because of the absence at trial of Police Officer Stephany, one of the arresting officers. This claim lacks merit. A missing witness charge will not be given when the witness is equally available to both parties. Here, Officer Stephany, who testified a week earlier at the suppression hearing, was amenable to subpoena process by the defense. Counsel will not be deemed ineffective for failing to take a futile course of action. Commonwealth v. Rainey, 282 Pa.Super. 15, 422 A.2d 652 (1980). Although there were several minor discrepancies between Officer Stephany’s testimony at the suppression hearing and the trial testimony of Officer English, the other arresting officer, it is this Court’s opinion that the testimony of Officer Stephany would have been merely cumulative of the Commonwealth’s other witnesses at trial.

Appellant’s final contention is also lacking in merit. Defense counsel made the following remarks during his closing argument:

“Let’s assume for the moment that you have been sent out to deliberate this case, come back with a verdict of guilty on behalf of the Defendant. Feeling that your duty has been discharged under very difficult circumstances, you go home tonight. You finally are able to discuss the case with your family. You discuss with them, tell them what happened, crazy lawyers did, what the Judge did to admonish the lawyers, what evidence showed, how this was lying or that was lying or this one was telling the truth. You get all of this discussion out. Finally time comes for you to go to bed, time to go to sleep. Sleep won’t come because you are thinking about the case. Facts are running through your mind____ Why did this witness say that? Why didn’t this witness say something else? What about that fact? Now, those facts—” (N.T. October 15-17, 1980, p. 290)

The trial court interrupted defense counsel and admonished counsel at sidebar. The trial judge then made the following statement to the jury:

“I think he was making an unprofessional and improper argument to you in his efforts to illustrate for you what in his opinion he thinks reasonable doubt is. His illustration could only serve to appeal to something in you that would make you uncomfortable with having the experience of responsibility of being involved in this case____ (Y)our deliberations should be of serious character that would be calculated only to make you calm and comfortable and satisfied with whatever decision it is you may come to, without any appeal or scare tactic trying to imply that if you do find this Defendant guilty in this case, you are going to be troubled with sleepless nights from now on.” (N.T. October 15-17, 1980, pp. 293, 294).

The remarks by the court did not prejudice the appellant in such a manner so as to deprive him of a fair trial. It is obvious that the trial court’s remarks to the jury were critical of defense counsel and not directed at appellant. See Commonwealth v. Humphreys, 267 Pa.Super. 318, 406 A.2d 1060 (1979). As the Commonwealth points out, it is the responsibility of the court to insure that final argument to the jury is kept within proper, accepted bounds. See The ABA Standards for Criminal Justice, The Defense Function, § 7.8(e) (Approved Draft, 1979). Under the aforementioned standards provided by the American Bar Association, § 7.8(d) provides:

“A Lawyer should refrain from argument which would divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the consequences of the jury’s verdict.”

In the instant case, we find that the trial court’s actions were quite proper.

For the above stated reasons, we affirm the judgment of sentence.

      . 18 Pa.C.S.A. § 3121.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 2706.


author: BROSKY, Judge: WIEAND, Judge,

text:
    466 A.2d 1362
    COMMONWEALTH of Pennsylvania v. Alfred BENNETT, Appellant.
    Superior Court of Pennsylvania.
    Argued May 25, 1982.
    Filed Oct. 14, 1983.
    Petition for Allowance of Appeal Denied Mar. 15, 1984.

      Leonard Sosnov, Assistant Public Defender, Philadelphia, for appellant.
    Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   BROSKY, Judge:

This appeal follows Mr. Bennett’s conviction on charges of robbery and possession of an instrument of crime. The incident in question occurred on March 9, 1979 when a Philadelphia taxi driver was robbed at gunpoint by a black male who was accompanied by a black female. The perpetrators fled from the scene of the crime, but the driver, when shown photographs by the Philadelphia police, said that a photo of appellant looked like the man who committed the crime. Approximately three months later, on June 15, 1979, appellant was arrested and charged with having committed the robbery. He was tried before a judge and jury and convicted in February 1981 and sentenced to a term of imprisonment of 3 to 15 years on the robbery conviction; sentence was suspended on the other charge.

Appellant alleges several errors on appeal, but because we find merit in his allegation that his petition to dismiss the case for non-compliance with Pa.Rule Crim.Proc. 1100 should have been granted, we will not reach the remaining questions.

The procedural history of this case is not only complicated; it is also unique.

Appellant was arrested on June 15, 1979, on which date the complaint was filed. The automatic 180-day run date prescribed by Rule 1100 fell on December 12, 1979. On September 16, 1980, trial having not yet commenced, the lower court granted a petition for extension of time filed by the Commonwealth and extended the period within which trial was to be held by sixty days. We believe that the court erred in granting this extension.

There is no dispute as to the timeliness of petitions to extend filed by the Commonwealth. Petitions were filed on September 27, 1979 and December 5, 1979. Hearings were held on the extension petitions on July 16, 1980, August 28, 1980 and September 16, 1980 when the extension was granted. At those hearings, the procedural scenario was explained as follows.

From June 15, 1979 until August 10, 1979, appellant was not represented by counsel and was, therefore, the court found, unavailable for trial.

On August 10, counsel was appointed. The lower court found that the period between August 10 and August 22 counted towards the 180-day limit. That is, those 12 days “ran” against the Commonwealth.

Similarly, the 22 days between August 22 and September 13 are charged to the Commonwealth.

On September 13, the defendant failed to appear for a preliminary hearing. A bench warrant was issued.

On October 4, the lower court inadvertently ordered this case quashed. On January 8, 1980, the court rescinded its October 4 order. The period from September 13 to January 8 was counted against the appellant by the lower court. That is, it was excluded from the 180-day limit.

The court found that on January 30, 1980 appellant was served with a subpoena ordering him to appear in court on February 5, 1980. Although appellant disputes this finding, we will for the sake of argument, assume that in fact he was properly served.

Appellant failed to appear on February 5 and a bench warrant was apparently reissued on February 11 or February 13.

Appellant was located on April 30, 1980 in custody in Delaware County Prison.

A hearing was apparently scheduled on the Rule 1100 issue for May 9 or 19. In either case, it was continued until May 27. At the July 16 Rule 1100 hearing, the prosecutor indicated that he did not know why the case was continued on that date.

The case was continued on May 27 to June 6. Again, no explanation was offered by the Commonwealth. The case was continued on June 6 to June 13, because, apparently, appellant was involved in a trial in Media, Pennsylvania.

The case was listed for June 13, June 25 and July 2 on all of which dates it was continued because the Quarter Sessions file could not be located. No explanation was offered as to its whereabouts or as to what efforts the prosecution made to secure the file and/or proceed to hearing.

On July 2, the appellant apparently sought a continuance. The first of three Rule 1100 hearings commenced on July 16.

We recently explained that our scope of review of orders granting petitions to extend requires us to consider the evidence presented by the Commonwealth and so much of the evidence presented by the defendant as, fairly read in the context of the record as a whole, remains uncontradict-ed. See Commonwealth v. Ryan, 306 Pa.Super. 159, 452 A.2d 264 (1982).

It is clear that the burden of seeing that trial is commenced rests on the Commonwealth, not the defendant. See Commonwealth v. Brown, 497 Pa. 7, 11 n. 7, 438 A.2d 592, 594 n. 7 (1981), in which our Supreme Court observed,

Under both the Sixth Amendment to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution “[t]he Commonwealth cannot place the burden on the accused to bring himself to trial. (Citation omitted.)
At the time of this trial, Rule 1100(d) provided:
(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
(1) the unavailability of the defendant or his attorney;
(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded;

As we explained in Commonwealth v. Ryan, supra, 306 Pa.Super. at 165, 452 A.2d at 267, “[ujnder Rule 1100, all periods of delay beyond the mandatory period must be either excluded from the computation under Rule 1100(d) or justified by an order granting an extension under Rule 1100(c), if the Commonwealth is to prevail.”

With these principles in mind, we turn again to the facts of the present appeal.

Neither party disputes the allocation of the period August 10 to September 13 to the Commonwealth.

Appellant concedes that the period between September 13 and October 4 is excludable time. On September 13, the appellant failed to appear.

In Commonwealth v. Cohen, 481 Pa. 349, 355-56, 392 A.2d 1327, 1331 (1978), our Supreme Court held,

Where ... the accused is aware of his obligation to appear and fails to do so, he may legitimately be held accountable for any resultant delay. Restated, where a warrant of arrest is involved the requirement of due diligence in the service of process is required before blame can be assigned to the suspect. Where the defendant is on bail and has notice of his obligation to appear and fails to do so, a concept of due diligence in apprehending the fugitive is misplaced in a speedy trial analysis. To rule otherwise would permit a defendant who intentionally absented himself from a scheduled court hearing to have the charges against him dismissed if the Commonwealth’s efforts to locate him did not measure up to a court’s standard of due diligence. Such a result is obviously absurd.
We therefore hold that a defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself In such a case the Commonwealth is entitled to an exclusion of this period under section (d)(1) without the requirement of a showing of its efforts to apprehend the defendant during the period of his absence. (Emphasis added.)

See also Commonwealth v. Ressler, 308 Pa.Super. 438, 454 A.2d 615 (1982) (it is not the intention of Rule 1100 to benefit a defendant who fails to live up to the requirement of bail).

The lower court excluded the period from October 4 to January 8 as well as that of September 13 to October 4 on the grounds that when appellant failed to appear on September 13 the Commonwealth was relieved of its obligation to prove due diligence. We do not believe that the Cohen holding applies to the October 4 to January 8 period.

Cohen focuses on the wrongdoing of a defendant who fails to appear. As the court wrote, supra, 481 Pa. at 354, 392 A.2d at 1330, “To focus solely upon the conduct of the Commonwealth not only ignores the defendant’s dereliction of an obligation, but also places him in the position of possibly benefitting from his own wrongdoing.”

On October 4, the lower court entered an order purporting to grant a petition to quash. The Public Defender, who represented appellant, advised him by letter of that date that the charges had been dropped and that he need not appear in court. Bail was subsequently returned to the appellant.

On January 8, 1980, apparently sua sponte, the lower court reversed its October 4 order. Apparently, the October 4 order had been made in error, a motion to quash not actually being before the court as to this case.

In the period October 4 to January 8, the Commonwealth filed a petition to extend, pursuant to Rule 1100(c), but took no other action. It did not request reconsideration of the order by the lower court, or at least, no formal request was made. The record is not clear as to what caused the court to recognize its error in January. The Commonwealth did not, however, show that the error was corrected through its actions. No appeal was taken from the October 4 order. Certainly no action would be expected from appellant.

The Commonwealth urges us to find that since appellant failed to appear on September 13 and a bench warrant issued, that his failure to appear should count against him during the October to January period. Yet, the Commonwealth took no action when it saw that the case had been, effectively, dismissed. In the face of the October 4 order, how can we find appellant’s failure to appear a wilful one that should be counted against him? Cohen is, after all, based on the premise that a defendant who knows he has an obligation to appear fails to do so. Here, the unchallenged order of October 4 certainly indicates that appellant had no obligation to appear. Under these peculiar circumstances, we will not apply the Cohen rule.

Having decided that the October to January period is not automatically excludable, we consider whether the Commonwealth showed due diligence at that time. Not only does the record fail to disclose any effort by the Commonwealth to bring the case to trial, the prosecution disavows the obligation to show due diligence, contending that that period is excludable.

While we certainly find the circumstances regrettable, we nonetheless note that the burden is on the Commonwealth to prosecute its case. It cannot rest on a bench warrant issued on September 13 when the circumstances changed so drastically on October 4.

Including then, the period October 4 to January 8, we find that 131 days had run by that date.

The Rule 1100 court found the January 8 to 30 period chargeable to appellant based on his failure to appear in accord with the September 13 bench warrant.

On January 28, the lower court apparently directed the Commonwealth to serve appellant. The court found that he was served on January 30 and failed to appear on February 5. Therefore, the court charged the period January 30 to February 5 to the Commonwealth, the periods before and after that, to appellant.

The appellant argues that he was not properly served in January , and also that when the case was reinstated on January 8, the September 13 bench warrant did not compel him to appear. Specifically, appellant claims that his father, not he, was served on January 30 and that he was not notified that the charges had been reinstated or that he was to appear on February 5.

Assuming arguendo that appellant was on notice on January 8 that the charges were reinstated, the September 13 bench warrant compelled his appearance. In that event, the period January 8 to January 30, when, accepting the prosecution’s side of the evidence, appellant was served, should be charged to appellant.

The period January 30 to February 5 would under any reading of this confused situation be counted towards the 180 day rule. By February 5 then, 137 days had run.

From February 5 to April 30, the appellant was not located. It is disputed as to whether his failure to appear was wilful (see ante), but we find that even if it were not, and the Commonwealth had a duty to search for him, that they exercised that obligation until April 30.

As recounted earlier, many delays ensued after April 30. With the exception of one week in June, attributable to the appellant, and perhaps two weeks from July 2 to July 16 attributable to him, the delay was not well explained. At the July 16 Rule 1100 hearing, the prosecution offered no reason for the continuances in May and suggested that the June 13, June 25 and July 2 delays were caused by the absence of the file for this case.

As to the month of May, it is clear that due diligence was not shown. We reach the same conclusion as to the remaining delays.

The Commonwealth argues that we should attribute the problems to judicial delay.

We explained in Commonwealth v. Ryan, supra, 306 Pa.Super. at 168, 452 A.2d at 268, that,

Although judicial delay can be the basis for an extension, the trial court may grant such an extension
“only upon a record showing; (1) the ‘due diligence’ of the prosecution and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.” Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-1350 (1976). (Emphasis added.)

No effort was made by the prosecution to show why the delays in June and July could not be avoided. It rested simply on the statement that the file could not be found. By July 16, excluding the afore-described periods attributable to appellant, 193 days had passed. Two months later, the lower court extended the case another sixty days although the Commonwealth did not ask for such a long period and in fact indicated that it did not know much about the nature of the charges, since so much time had elapsed since the proceedings had begun.

We do not find evidence of due diligence that would have warranted the September 16, 1980 order. We cannot shift the burden of securing a speedy trial to the defendant, just because the case was unfortunately fraught with confusion and mismanagement. Under these circumstances, the benefit of the doubt must favor the appellant.

Judgment of sentence is vacated.

WIEAND, J., files dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. In my judgment the majority’s conclusion that the Commonwealth failed to comply with the mandate of Rule 1100 is unwarranted. Although I have no quarrel with the majority’s recitation of the procedural history of this needlessly protracted case, I am unable to agree that the period after the informations had been quashed and before they were reinstated must be charged against the Commonwealth. Similarly, I am unable to agree that the Commonwealth failed to establish due diligence. Therefore, I am unable to join the majority’s decision to order appellant’s discharge. For reasons hereinafter discussed, however, I would award a new trial.

On October 4, 1979, the trial court erroneously quashed informations charging Alfred Bennett with robbery and possession of an instrument of crime at the same time it properly granted a defense motion to quash informations charging Bennett with other offenses. The court rescinded its order with respect to the present charges of robbery and possessing an instrument of crime and reinstated the infor-mations on January 8, 1980. The majority charges the intervening time against the Commonwealth for Rule 1100 purposes. I disagree. I am of the opinion that the learned trial judge was correct in holding this time excludable.

In Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979), the Supreme Court held that the time period between a refusal to indict by one grand jury and the approval of an indictment by a second grand jury was excludable for purposes of determining compliance with Rule 1100. The court stated: “Rule 1100 is an administrative method by which we seek to give substance to the constitutional guarantee of a speedy trial for criminal defendants____ The speedy trial guarantee is ‘concerned with limiting the period of “anxiety and concern accompanying public accusation.” ’ ” Id., 487 Pa. at 202, 409 A.2d at 310 quoting Commonwealth v. Leaming, 442 Pa. 223, 225, 275 A.2d 43, 44 (1971) and United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627, 630 (1966). In the case sub judice, as in Johnson, the defendant was, during the period when he believed the charges quashed, “totally free from any anxiety or concern regarding these charges____” Id. 487 Pa. at 203, 409 A.2d at 311.

There was here no attempt on the part of the prosecution to evade the requirements of Rule 1100. The parties appear to be in agreement that the charges were mistakenly quashed by the trial court after it had been presented with a defense motion to quash only those charges arising out of a wholly separate incident. Thus, it was the action of the trial court and not conduct, direct or indirect, by the Commonwealth which caused a temporary termination of the prosecution. Because there was no attempt by the prosecution to circumvent Rule 1100, the interval of time between October 4, 1979 when the charges were quashed and January 8, 1980, when the trial court reinstated them, should not be charged against the Commonwealth but should be excluded.

I must also disagree with the majority’s conclusion that the record fails to support the trial court’s finding that the Commonwealth exercised due diligence in bringing Bennett to trial. On February 5, 1980, Bennett failed to appear for trial; and a bench warrant was issued for his arrest on February 11, 1980. He was not found until April 30, 1980, when he showed up in the Delaware County Prison. A timely Commonwealth extension petition was scheduled for hearing and continued on five separate occasions before a series of three hearings commenced on July 16, 1980. On May 27, 1980, the first extension hearing was continued because Bennett had not been brought from prison. A second hearing, scheduled for June 6, 1980, was continued because Bennett was then on trial in Media, Delaware County. Two other continuances were made necessary because the Clerk’s file could not be found and was unavailable. On July 2, 1980, the hearing was continued at Bennett’s request. Hearings were held on July 16, July 25, and August 28, 1980. On the last date, the Honorable Lynne M. Abraham took the matter under advisement because of its complex history. The Commonwealth’s petition was granted on September 16, 1980, and the time for trial was extended for a period of sixty days. Thereafter, there was an additional extension, to which Bennett expressly agreed, until February 28, 1981. Trial commenced on February 9, 1981.

The original rúndate for Rule 1100 purposes was December 12, 1979. However, the periods between October 4, 1979 and January 8, 1980 (96 days) and from February 5, 1980 to April 30, 1980 (85 days) were excludable. This excludable time caused the run date to be moved forward to June 9, 1980. Although trial was thereafter delayed by the continuances of the hearing on the Commonwealth’s extension petition, such delay cannot be attributed to a lack of due diligence on the part of the Commonwealth. Two delays were traceable directly to Bennett’s motion for a continuance and to his presence in Delaware County for trial on other charges. The three remaining continuances, although unfortunate, were attributable to breakdowns in duties assigned to judicial officers and not to the prosecution. Therefore, I am forced to conclude, as did Judge Abraham, that the failure to commence trial within the time allowed by Rule 1100 was not attributable to a lack of due diligence by the Commonwealth. An extension, therefore, was properly granted.

Although I am unable to agree that Bennett is entitled to be discharged, I am constrained to conclude that he must be granted a new trial for at least two reasons.

The trial court initially agreed to instruct the jury in accordance with Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979) that a request for a pre-preliminary hearing lineup had been denied, but then refused to do so. In my opinion, Bennett was entitled to such an instruction, and it was error to refuse to give it.

The only evidence connecting Bennett to the robbery was the identification testimony of the taxi driver who had been robbed. Defense counsel moved for a lineup prior to the preliminary hearing. The motion was denied when it was represented to the court that the victim had had a good opportunity to view the robber at the time and place of the offense and had identified Bennett from a photographic display shown to him immediately following the robbery. In fact, as was determined during a pre-trial hearing and again at trial, the victim had been unable to identify Bennett following the photographic display. He could say only that Bennett “looked like the man,” but was unwilling or unable to make a positive identification. A prompt pre-pre-liminary hearing lineup would have provided a less suggestive setting than the one-on-one confrontation provided by the preliminary hearing.

The harm in denying the pre-preliminary hearing lineup, however, could have been cured by instructing the jury that Bennett had been “denied the opportunity for a more objective identification and for that reason the subsequent less reliable identification could be viewed with caution.” Commonwealth v. Sexton, supra, 485 Pa. at 25, 400 A.2d at 1293. The trial court ruled pre-trial and again during trial that such an instruction was appropriate and promised that the same would be given. In fact, the instruction was not given to the jury. The failure to give a Sexton charge was aggravated by the trial court’s failure to convey fully to the jury the cautionary instructions required by Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). Such a cautionary instruction is required where the testimony of an identification witness has been weakened by a prior inability to make a positive identification. The trial court, although reciting the positive aspects of the victim’s opportunity to observe the robber, failed to instruct the jury regarding the effect of the victim’s prior inability to identify Bennett as the robber.

Bennett is also entitled to a new trial because the jury was permitted to hear irrelevant and highly prejudicial evidence. Approximately three and one-half months after the robbery of the taxi driver, appellant was arrested in his apartment pursuant to a warrant charging him with a different offense. The Commonwealth, over objection, was permitted to show at trial in the instant case that when police arrived to make the arrest, appellant was found crouched and hiding in a darkened kitchen. In my judgment, Bennett’s attempt to conceal himself, without more, did not show consciousness of guilt in connection with the charges in the instant case and should not have been received for that purpose.

As a general rule, evidence of flight or concealment to show guilty knowledge is admissible only when the circumstances are such as to justify an inference that the accused’s actions were motivated by a belief that police officers were aware of his wrongdoing and were seeking him to prosecute therefor. The fact that the accused has been involved in other criminal activity, it has been held, affects the weight of the evidence but does not render it inadmissible. Commonwealth v. Rough, 275 Pa.Super. 50, 62, 418 A.2d 605, 611 (1980). In the Rough case, however, the accused was arrested for a rape which had occurred only two days before. “The mere fact that other criminal activity occurred at about the same time[,]” said the Court, “does not warrant barring this evidence.”

However, the immediacy requirement is important. As the interval between the crime charged and the concealment expands, evidence of defendant’s knowledge that he is being sought for the crime becomes an increasingly important factor in determining whether an inference of guilt concerning the specific crime charged can properly be drawn. See: United States v. Jackson, 572 F.2d 636, 640-641 (7th Cir.1978). See also: United States v. Myers, 550 F.2d 1036, 1051 (5th Cir.1977), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978); United States v. White, 488 F.2d 660, 662 (8th Cir.1973). Not only was there a three and one-half month delay in the instant case, but the police in fact were not seeking appellant to arrest him for the charge for which he was tried. Thus, it is difficult to perceive the legitimacy of an inference that he concealed himself because he was conscious of guilt on the offense for which he was being tried. An inference of guilty knowledge of the specific offense for which appellant was being tried in this case was so uncertain and ambiguous and the evidence so prejudicial that, in my judgment, it should not have been received. It did nothing to establish Bennett’s guilt of the offense for which he was being tried and, therefore, was irrelevant. See: Commonwealth v. Todt, 318 Pa.Super. 55, 64-65, 464 A.2d 1226, 1230 (1983); Com monwealth v. Simpson, 316 Pa.Super. 115, 121-22, 462 A.2d 821, 824 (1983); Commonwealth v. Krajci, 283 Pa.Super. 488, 495, 424 A.2d 914, 917-918 (1981).

For these reasons, I would reverse the judgment of sentence and remand for a new trial.

      . Rule 1100 provides in relevant part:
      (2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred (180) days from the date on which the complaint is filed.

      . Rule 1100(c) stated at the time of the trial:
      (c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.

      . We observe that the record in this case is not only complicated, it is also unclear. We are compiling our facts from those presented at the hearings; the official docket entries are sparse and do not indicate the hearing dates.

      . The rule was amended October 22, 1981, effective January 1, 1982.

      . The lower court expressed some uncertainty as to whether the period June 15 to June 19 should be included in the 180-day period. Because we find that the Commonwealth failed to try appellant timely even if this period is not included, we will not discuss it further. We express no opinion as to the allocation of time before August 10.

      . We are not certain based on the record before us of what caused the error, but do not believe that fact to be relevant to our review.

      . We do not determine here whether appellant was on notice or whether the prosecution had a duty to show due diligence in informing him that the charges were reinstated. In any event, we find the extension improperly granted.

      . There is absolutely no merit in appellant’s additional contention that the trial court lacked subject matter jurisdiction to hear the charges against him.