text:
    480 A.2d 327
    In re ESTATE of Spurgeon D. REES Appeal of Dorothea L. REES.
    Superior Court of Pennsylvania.
    Argued April 4, 1984.
    Filed Aug. 17, 1984.

      Kiefer N. Gerstley, Philadelphia, for appellant.
    David A. Wion, Harrisburg, for appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant challenges the lower court’s order striking her election to take against decedent’s will. Specifically, she argues that the lower court erred in concluding that appellant and decedent were not united in common law marriage. We find no merit in appellant’s challenge and, accordingly, affirm.

Following decedent’s death on September 24, 1978, appellant filed an election to take against decedent’s will, to which appellees, the executors of decedent’s estate, objected. After depositions of out-of-state witnesses were taken, and a hearing was held to determine appellant’s status vis-a-vis the decedent, the lower court ordered the election stricken. This appeal followed.

Appellant contends that words in praesenti are not necessarily required for the establishment of common law marriage and that the evidence was sufficient to establish such a marriage. Essentially, appellant’s argument is that evidence of her and decedent’s cohabitation and reputation in the community sufficed to prove a common law marriage. Upon review, we disagree. Words in praesenti are usually required to establish a common law marriage relationship. See McGrath’s Estate, 319 Pa. 309, 179 A. 599 (1935). However,

because it is often difficult to prove a common law marriage by words in praesenti, the law has created or raised a rebuttable presumption of marriage where two absolutely essential elements are conjoined and co-exist— constant, as distinguished from an irregular or inconstant, cohabitation plus a reputation of marriage, which is not partial or divided but is broad and general.

Manfredi Estate, 399 Pa. 285, 291, 159 A.2d 697, 700 (1960). Cohabitation and reputation, however, “do not create the marriage but rather are circumstances giving rise to a rebuttable presumption of one.” Wagner Estate, 398 Pa. 531, 533, 159 A.2d 495, 497 (1960); Manfredi Estate, supra 399 Pa. at 291, 159 A.2d at 700; Nikitka’s Estate, 346 Pa. 63, 29 A.2d 521 (1943). Moreover, “the rule which permits a finding of marriage duly entered into based upon reputation and cohabitation alone is one of necessity to be applied only in cases where other proof is not available.” Nikitka’s Estate, supra, 346 Pa. at 65, 29 A.2d at 522.

In the instant case, the record reveals the following facts and proof: Appellant and the decedent were not married when they parented a son, Morgan, in 1953. On May 13, 1954, they were married in El Paso, Texas and within a day were divorced in Mexico. Shortly thereafter, appellant moved with Morgan to Florida while decedent remained in Harrisburg, the location of his business. The two remained domiciled in their respective cities for the following 24 years. However, appellant contends that throughout the 24-year period preceding decedent’s death, the two enjoyed a reputation in her Florida community as a married couple and that decedent’s occasional visits to Florida clearly demonstrated the requisite cohabitation. In support of her claim, appellant presented the deposition testimony of several Florida neighbors and friends of her son. Generally, the witnesses were all questioned about their knowledge of the frequency of the decedent’s visits to Florida and their impression of the nature of the relationship at issue.

With regard to the couple’s alleged cohabitation, Raul Valdovinos, a childhood friend of Morgan’s, testified that he met the decedent in the early 1970’s and that he saw him at appellant’s house on major holidays. Mr. Valdovinos also testified that the decedent was introduced to him as Morgan’s father. (N.T. December 18, 1980 at 93). Earl Valentovic, another of Morgan’s friends, testified that he too saw the decedent on holidays and “probably three, four, maybe several various times in the middle of the year too... ”, and that the decedent always remained in Florida for three days or more. (N.T. December 18, 1980 at 12). On cross-examination however, Mr. Valentovic conceded that the decedent “was not [in Florida] for most months out of the year.” (N.T. December 18, 1980 at 25). Based on this evidence, representative of all of the deponents’ testimony, appellant has clearly failed to meet her burden to prove that she and the decedent enjoyed “constant, as distinguished from an irregular or inconstant, cohabitation.” Manfredi Estate, supra 399 Pa. at 291, 159 A.2d at 700. Cf. Nikitka’s Estate, supra (ample evidence of seven years cohabitation at parents’ house); Wagner Estate, supra (resumption of 20-year marriage after one year’s interruption).

Further, the evidence fails to support appellant’s contention that she and the decedent were commonly known and recognized as husband and wife.

The mere fact that they [the alleged contracting parties] were known to a few people as man and wife is not sufficient evidence to establish marriage. Proof by reputation for such purposes must be general and not confined to a few persons in the immediate neighborhood, as the relationship may be established merely for the purpose of deceiving others.

Nikitka’s Estate, supra, 346 Pa. at 66, 29 A.2d at 523, quoting Hilton’s Estate, 263 Pa. 16, 19, 106 A. 69, 70 (1919). See Wagner Estate, supra (resumption of a 20-year marriage). Cf. Dennis Estate, 394 Pa. 296, 147 A.2d 419 (1959) (no proof of reputation — “wife” always referred to by former husband’s name); Nikitka’s Estate, supra (testimony of reputation by two witnesses, “one a boarder of the appellant’s and the other a close friend of appellant’s for many years” inadequate proof). In the instant case, appellant presented the testimony of only a few neighbors and friends of her son. Several of the deponents stated that they understood appellant and decedent were married, that the couple traveled together, and that appellant never dated other men. Mr. Valdovinos testified that he had even seen the decedent emerge from appellant’s bedroom in the morning hours. (N.T. December 18, 1980 at 94). Additionally, the witnesses testified, over the objection of appellees’ counsel, that the feeling in the community was that the couple was indeed married. This evidence, however, falls far short of that required to demonstrate reputation. Firstly, it is undisputed that the decedent long resided in Harrisburg, Pennsylvania. No evidence was introduced by appellant that, in Harrisburg the couple enjoyed the reputation of being married. Nor is there any evidence that appellant ever visited Harrisburg to see her alleged “common law husband”. From these gaps in appellant’s proof, and from our review of the record, we infer that in decedent’s community he was regarded as a single man. Secondly, the only evidence offered by appellant was the testimony of a few neighbors and friends. This testimony does not stretch beyond appellant’s neighborhood to establish a general reputation. For instance, Mr. Valdovinos’ testimony that he had seen the decedent at appellant’s home during the morning hours and evidence that the couple traveled together on several occasions, do not establish a “reputation of marriage, which is not partial or divided, but is broad and general.” Manfredi Estate, supra 399 Pa. at 291, 159 A.2d at 700. This evidence suggests that appellant and decedent maintained a close, even intimate relationship over more than two decades, but fails to satisfy the proof required to establish a valid common law marriage.

Accordingly, we affirm the lower court’s order striking appellant’s election against decedent’s will.

Affirmed.

      . We note the Pennsylvania courts’ reluctance to validate a common law marriage where words in praesenti are absent and proof of reputation and cohabitation is lacking, for ”[w]hen the lips of a man are sealed by death, and he leaves no satisfactory evidence as to the existence of such contract, courts will be very slow to establish it in derogation of the undoubted rights of those who follow him.” Manfredi Estate, 399 Pa. 285, 292, 159 A.2d 697, 701 (1960), quoting Baker v. Mitchell, 143 Pa.Superior Ct. 50, 54, 17 A.2d 738, 740 (1941).

      . We disagree with appellant’s claim that the lower court erroneously permitted the admission into evidence of the decedent’s tax returns, which he had filed as a single individual. The lower court, acting in its discretion, accepted the forms in place of the originals because they were on file with the IRS and the copies were found among the decedent’s personal papers.

      . Appellant submits boat boarding passes as evidence of reputation, claiming that because both she and the decedent checked off “married" and listed her address as their home on the passes, that they clearly held themselves out as married. The passes, while indicating the close nature of the couple’s relationship, do not alone, or even coupled with the remaining evidence, support a finding of general reputation in the community.


source: Caselaw Access Project

author: PER CURIAM: HESTER, Judge,

license: Public Domain

text:
    480 A.2d 330
    COMMONWEALTH of Pennsylvania v. Darryl GUYTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1984.
    Filed Aug. 17, 1984.

      George R. Klotzbaugh, State College, for appellant.
    Dennis C. Pfannenschmidt, Assistant District Attorney, Bellefonte, for Com., appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   PER CURIAM:

This is an appeal from the denial of appellant’s petition to withdraw his guilty plea. The sole issue raised on appeal is whether such plea was unknowingly entered as a result of the failure to define, for appellant’s sake, the word “consecutive”. We reluctantly reverse.

The pertinent portion of the guilty pleas colloquy reads as follows:

THE COURT: All right. I’m going to ask your attorney to set forth what the plea agreement is. I want you to listen to it and then you’ll have an opportunity to either agree or disagree with that. Mr. McGee [Public Defender].
[PUBLIC DEFENDER]: Your Honor, in this case Mr. Guyton is entering a guilty plea to simple assault. In exchange for the guilty plea the Commonwealth agrees that any sentence of incarceration be no greater than six months to two years in State Correction Institution consecutive to the sentence that he’s currently serving. All other aspects of sentencing are left to the discretion of the court.
THE COURT: Mr. Gricar [District Attorney], is that your understanding?
[DISTRICT ATTORNEY]: Yes, Your Honor.
THE COURT: Mr. Guyton, is there anything you wish to add to that?
ifc * Sfc J{! * *
THE DEFENDANT: May I ask another question? Is that after the time I’m doing now?
[PUBLIC DEFENDER]: It’s consecutive to the sentence you’re serving. That’s the plea agreement, six months to two years consecutive to what you’re doing now.
THE DEFENDANT: Yes.
THE COURT: All right. Do you understand that’s the agreement? It was six months to two years?
THE DEFENDANT: Yes.
THE COURT: Is that agreeable with you?
THE DEFENDANT: Yes.
THE COURT: Do you wish to talk to your attorney about it before you proceed any further?
THE DEFENDANT: No.

(N.T. pp. 10-12).

The Commonwealth contends that the record refutes appellant’s claim of ignorance. Furthermore, it is argued that a court need not define terms which have a commonly accepted meaning. See Commonwealth v. Herberg, 306 Pa.Superior Ct. 245, 452 A.2d 536 (1982) (need not advise doctor of meaning of “practitioner” and “administer or deliver”); Commonwealth v. Everett, 290 Pa.Superior Ct. 344, 434 A.2d 785 (1981) (need not define “marijuana”).

We disagree with the Commonwealth’s assessment of the record. As the above portion of the reproduced record demonstrates appellant asked for an explanation of the word “consecutive”. The explanation given to him was that “consecutive” meant “consecutive”. At the hearing on the petition to withdraw, appellant indicated that, while he was then aware of the distinction between consecutive and concurrent, at the time he entered his plea he thought the terms were inter-changeable.

Nor are we persuaded by the prosecution’s claim that “consecutive” had a commonly understood meaning. Certain words, such as marijuana in Everett, may be universally understood. However, comprehension of other terms or phrases may be dependent upon an individual’s background. Herberg is a good example of such, as there this court found that a forty-six year old physician, who had been practicing medicine for nineteen years, surely understood the meaning of “practitioner” and “administer or deliver.” After all, it is the defendant’s understanding of a plea bargain which is important and which must be ascertained. Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); Commonwealth v. Buhl, 262 Pa.Superior Ct. 178, 396 Pa. A.2d 704 (1978).

In the case at hand, appellant had attained a ninth grade education. There was no demonstration on the record that he had any reason for understanding the implication of a consecutive sentence. Commonwealth v. Fay, 294 Pa.Superior Ct. 332, 439 A.2d 1227 (1982) requires that a defendant entering a plea be advised that the sentence imposed could run consecutive to any sentence then being served. Here the court complied with Fay. However, in Commonwealth v. Buhl, supra, the defendant was advised of the consecutive nature of the sentence but he contended that he did not understand it. This court did not address the specific claim raised here finding instead that the guilty plea court had failed to determine whether the defendant understood the whole of the plea bargain.

Even though Buhl found a general failure to inquire of a defendant’s understanding, it controls our decision here pertaining to a specific failure to ascertain that appellant understood the meaning of “consecutive”. For a plea to be valid a defendant must have a proper and full understanding of its consequences. Commonwealth v. Zuber, 466 Pa. 453, 460, 353 A.2d 441, 444 (1976). A court must assure itself that a defendant fully understands the maximum possible sentence. Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978). Here the court after being directly questioned by the appellant failed to explain the meaning of “consecutive”, failing to make sure of appellant’s understanding thereof. Therefore, we are constrained to reverse.

Order reversed; judgment of sentence is vacated, and the case is remanded for proceedings not inconsistent with this opinion. We do not retain jurisdiction.

HESTER, J., filed a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully but vigorously dissent. While serving a sentence of 2V2 to 10 years for robbery and burglary at the State Correctional Institution at Rockview, appellant made an unprovoked attack upon a guard who was searching his cell. As the result of a plea bargain, he was sentenced to from 6 months to 2 years, consecutive to the sentence he was then currently serving. The 18 page guilty plea colloquy conducted by Judge Grine is a model of perfection. It more than meets all the requirements mandated by our appellate courts and the Sentencing Code. Appellant’s allegation that he did not understand that the sentence was to be served consecutive to his then current sentence is incredible. His questioning of the sentencing court at that point in the hearing, plus his prior experience with the criminal justice system, belies his contention. Appellant is a hardened criminal, no stranger to the sentencing process. The totality of the circumstances plus the extensive, detailed colloquy leave no doubt that appellant’s plea was made knowingly, voluntarily and intelligently. I would, therefore, affirm on the opinion of Judge Grine of the court below.


author: WIEAND, Judge:

text:
    480 A.2d 332
    COMMONWEALTH of Pennsylvania, Appellant, v. Domingo FIGUEROA.
    Superior Court of Pennsylvania.
    Argued March 29, 1984.
    Filed Aug. 24, 1984.

      Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Richard Hayden, Assistant Public Defender, Philadelphia, for appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

This is an appeal by the Commonwealth from an order dismissing criminal charges of theft by receiving stolen property and unauthorized use of an automobile because of an alleged failure to commence trial within 180 days as required by Pa.R.Crim.P. 1100. We reverse.

Domingo Figueroa was arrested and a criminal complaint filed against him on February 11, 1982. The run date for Rule 1100 purposes, therefore, was August 10, 1982. Defendant was arraigned on March 22, and trial was scheduled for May 19. On that day, the defendant was not brought to court from the prison, and trial was continued until June 24. The owner of the stolen vehicle became ill shortly before the next trial date because of complications following childbirth, and trial was continued until August 6. The Commonwealth issued a subpoena to the victim-owner of the stolen car in early July, but she notified the District Attorney that she would be on vacation on August 6. Therefore, on July 22, the Commonwealth immediately appeared before the assigned trial judge and specially requested that the trial be relisted for the earliest date consistent with the court’s business. This date the court determined to be September 2, and trial was rescheduled for that date. Because the new date fell after the August 10 run date, the Commonwealth filed, on July 26, a petition to extend the time for trial under Pa.R.Crim.P. 1100(c). A motion to dismiss was also filed by the defendant. Both petitions were heard prior to the scheduled trial on September 2. The court found that the Commonwealth had failed to exercise due diligence and denied the Commonwealth’s petition to extend. The petition to dismiss was granted.

At the extension hearing on September 2, the Commonwealth produced the assistant trial coordinator who testified that on July 22 the earliest dates available in the courtroom to which the case had been assigned were August 31, September 1, and September 2. He said that there had been four slots open on August 31, one slot open on September 1, and one slot open on September 2. However, there had been nine cases involving ten defendants scheduled for trial in the same courtroom on July 22, and seven of them had been continued. Six of the continued cases were relisted for trial in the same courtroom and some were given priority over the instant case. The evidence also showed that if the Commonwealth had not acted promptly to obtain a relisting when it learned of the unavailability of the victim and had waited until the day of trial on August 6, the earliest available date would have been September 13. The trial court found, nevertheless, that the Commonwealth had failed to exercise due diligence. The court’s opinion suggests that it relied upon the decision of this Court in Commonwealth v. Crowley, 281 Pa.Super. 26, 421 A.2d 1129 (1980) to conclude that the Commonwealth, if it had exercised due diligence, would have been able to schedule a retrial of the present case ahead of other cases continued from July 22 which might not have had Rule 1100 problems.

The Superior Court’s decision in Crowley, however, was reversed by the Supreme Court. See: Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983). In its opinion, the Supreme Court specifically rejected the analysis made by the trial court in the instant case. The Court said:

Rule 1100 should not be construed to require Common Pleas Courts with backlogged criminal dockets to devote all their administrative and judicial resources to guarantee that every defendant is tried within the period prescribed by the Rule. It should be sufficient for the court to establish that it has devoted a reasonable amount of its resources to the criminal docket and that it scheduled the criminal trial at the earliest possible date consistent with the court’s business. While the trial court may be required to rearrange its docket, if possible, when judicial delay has caused a lengthy postponement beyond the period prescribed by Rule 1100, or one that implicates the constitutional right to a speedy trial, it should not be required to do so to avoid a delay of under 30 days as here.

Id., 502 Pa. at 402-403, 466 A.2d at 1014 (footnotes omitted). See also: Commonwealth v. Briggman, 325 Pa.Super. 333, 472 A.2d 1145 (1984). Subsequently, in Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984), the Supreme Court said that Rule 1100 did not require a court “to exercise a stopwatch approach to the definition of ‘due diligence.’ ” A court acts incorrectly “in separately metering each step in the pre-trial process against the due diligence standard. Rule 1100 provides an overall standard of 180 days, not separate standards for each step. Its due diligence exception should be measured against the whole not its separate parts.” Id., 504 Pa. at 392, 474 A.2d at 279.

When the due diligence exception is measured against the overall circumstances of the instant case, it becomes readily apparent that the failure to commence trial within 180 days cannot be attributed to a failure by the Commonwealth to exercise due diligence. Trials scheduled for June 24 and August 6, 1982 had been continued because the victim of appellee’s alleged criminal misconduct was not then available. This was not equivalent to a Commonwealth failure to use diligence. See: Commonwealth v. Keller, 328 Pa.Super. 436, 477 A.2d 523 (1984); Commonwealth v. Cottman, 327 Pa.Super. 453, 476 A.2d 40 (1984); Commonwealth v. Dancy, 317 Pa.Super. 578, 464 A.2d 473 (1983); Commonwealth v. Thompkins, 311 Pa.Super. 357, 457 A.2d 925 (1983). Indeed, when it became apparent that there might be a Rule 1100 problem because of the victim’s unavailability for trial on August 6, the Commonwealth moved immediately to have the trial rescheduled at as early a date as was consistent with the court’s business. Trial was then set for September 2. The Commonwealth cannot be charged with failing to exercise due diligence merely because other cases continued from July 22 (not August 6) were rescheduled prior to the case involving Figueroa. The Commonwealth had requested the court to reschedule appellee’s trial for the earliest date consistent with the court’s business, and the court had set that date as September 2. The record does not suggest that the Commonwealth in any way delayed the trial or failed to exercise due diligence in commencing the same. It was error, therefore, to deny the Commonwealth’s request for an extension and to dismiss the criminal action.

Reversed and remanded.

JURISDICTION IS RELINQUISHED.