text:
    471 A.2d 1263
    COMMONWEALTH of Pennsylvania v. Albert J. FAUST, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 18, 1983.
    Filed Feb. 17, 1984.

      David Zwanetz, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   HESTER, Judge:

This is an appeal taken from a judgment of sentence filed February 24, 1982, in the Court of Common Pleas of Philadelphia County, Pennsylvania. At that time, appellant, Albert Faust, was sentenced to not less than ten nor more than twenty years of imprisonment for burglary. It was further directed that the sentence was to run concurrently with sentences previously imposed on unrelated bills of information.

Prior to the imposition of sentence, appellant pled guilty to burglary. The burglary charge was the result of appellant’s and Joseph Watson’s unauthorized and forcible entry into the Beth Telfilath and Temple Beth Ami Synagogues in Philadelphia. The co-defendants removed Torah breastplates, Torah pointers, Torah crowns and a wine cup from these places of worship. These items were made of silver, and it was the co-defendants’ intent to sell them to a third party who would in turn melt the silver and sell the transformed substance for profit.

Appellant and his co-defendant were apprehended in Delaware County by the Upper Darby Police Department. Once taken into custody, the co-defendants waived their constitutional rights and confessed to the burglaries. The stolen items were recovered from the trunk of the getaway automobile. The Upper Darby Police Department released the felons to the custody of the Philadelphia Police Department in order that criminal proceedings could be instituted.

Following the entry of his guilty plea, appellant did not file a petition to withdraw that plea. Instead, he filed a petition for reconsideration of sentence, which was denied. This appeal followed.

Appellant’s arguments can be paraphrased as follows:

1) The lower court erred in failing to suppress the stolen property found in the automobile on grounds that the warrantless search and seizure was illegal. Appellant complains that the Upper Darby police officers had ample opportunity prior to the arrest to secure arrest and search warrants. Through the aid of a confidential informant (appellant’s brother), the arresting officers suspected appellant’s complicity in unrelated burglaries two months prior to the arrest and were apprised of his participation in the instant matter and his whereabouts nearly one and one-half hours prior to the officers’ pursuit. Consequently, according to appellant, there was time to secure a warrant, and no exigent circumstances justified the warrantless arrest and search and seizure.
2) The warrantless search of the automobile was further unwarranted due to the fact that appellant’s consent to the search was neither voluntary nor intelligent. The officers failed to inform appellant of his constitutional rights prior to the search.
3) The lower court erred in failing to suppress appellant’s confession taken in violation of Pennsylvania’s “six-hour rule”.
4) Withdrawal of appellant’s guilty plea is warranted due to his counsel’s ineffectiveness in failing to inform the court of the double jeopardy elements of this case.

At any time prior to the imposition of sentence, a guilty plea may be withdrawn at the discretion of the court “for any fair and just reason.” ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty. Generally, withdrawal of a plea prior to sentence is liberally permitted, providing the Commonwealth is not substantially prejudiced through its reliance upon the plea. Commonwealth v. Shaffer, 498. Pa. 342, 446 A.2d 591 (1982); Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976); Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973); Commonwealth v. Mosley, 283 Pa.Super. 28, 423 A.2d 427 (1980).

If, on the other hand, a motion is filed within ten days following imposition of sentence challenging the validity of the guilty plea or the denial of the motion to withdraw the plea, the standard of granting withdrawal is “manifest injustice.” Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973); Commonwealth v. Carter, 318 Pa.Super. 252, 464 A.2d 1327 (1983). This standard has been widely accepted as stricter than that which applies to the filing of a petition to withdraw prior to sentence.

Here, appellant did not seek to withdraw his plea prior to or following the imposition of sentence. He seeks to withdraw his plea for the first time on appeal. Unless appellant can demonstrate “extraordinary circumstances”, his failure to file a petition to withdraw his plea with the trial court precludes him from challenging his plea on appeal. Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975) ; Commonwealth v. Hunter, 240 Pa.Super. 23, 360 A.2d 702 (1976).

Appellant is correct in asserting that the failure to file a petition to withdraw an unlawfully induced plea does not result in a waiver where such failure is due to ineffectiveness of counsel. Commonwealth v. McCall, 267 Pa.Super. 351, 406 A.2d 1077 (1979). Ineffectiveness of counsel constitutes an extraordinary circumstance precluding waiver. Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976) ; Commonwealth v. Palmer, 264 Pa.Super. 165, 399 A.2d 718 (1979).

Although we agree with appellant’s discussion of the law, we do not agree that extraordinary circumstances exist in the instant matter. Appellant’s entire argument on this issue is as follows:

The appellant asserts that he did not understand his rights or the effect of waiving his rights by pleading guilty. Appellant was advised by the public defender that when he pleaded guilty, the court would be notified of this special double jeopardy consideration involved in this case. The record does not indicate the carrying out of this promise. Thus, the guilty plea was at least in part induced by representations of former counsel. A defendant does not waive his right to challenge a guilty plea on direct appeal where he was denied the opportunity, through ineffective counsel, to .preserve the right.

This argument is nothing more than a mere assertion of ineffectiveness which does not reach the status of “extraordinary circumstances” warranting review of issues not raised in the lower court. Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981). Appellant does not define what “special double jeopardy considerations” exist, nor does he explain why said considerations induced him to plead guilty. Without more, we are inclined to rely upon that portion of the colloquy reflecting appellant’s entry of his plea without inducement;

Q. And you are pleading guilty of your own free will; is that correct?
A. Yes.
Q. No promises or threats have been made against you to get you to plead guilty; is that right?
A. That’s right.
(N.T. October 16, 1981, p. 12).

Having found the absence of “extraordinary circumstances”, we will not permit the withdrawal of appellant’s plea. His plea of guilty was knowingly, voluntarily and intelligently entered.

Appellant’s remaining arguments concerning the court’s refusal to suppress physical evidence and his confession were not preserved for this appeal. First, no post-trial motions were filed to enable to the lower court to consider the suppression issues. Only those issues contained in post-trial motions are ripe for appeal. Pa.R.Crim.P. 1123(c)(3). Of course, we must note that appellant’s failure to file post-trial motions is due entirely to his entry of a guilty plea. However, he freely chose to plead guilty to burglary and criminal conspiracy. This plea, in turn, greatly restricted the number of appealable issues. Once a plea was entered, his petition to withdraw, and subsequent appeal from a denial thereof, were limited to allegations challenging the jurisdiction of the court, voluntariness of his plea and the propriety of the sentence imposed. Commonwealth v. Stokes, 426 Pa. 265, 232 A.2d 193 (1967); Commonwealth v. Knapp, 212 Pa.Super. 560, 243 A.2d 179 (1968). Non-jurisdictional defects, such as those raised by appellant here, are waived as a result of the plea of guilty, unless said defects are the primary motivation for the plea. Commonwealth v. Hill, 427 Pa. 614, 235 A.2d 347 (1967). Appellant neither alleges nor proves that the confession or physical evidence was the primary motivation for the plea. Commonwealth v. Berry, 440 Pa. 154, 269 A.2d 921 (1970); Commonwealth v. Rogers, 440 Pa. 598, 269 A.2d 449 (1970).

Accordingly, we affirm the judgment of sentence.

LIPEZ, J., concurred in the result.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    472 A.2d 191
    Flora BERRY, Administratrix of the Estate of James Berry, Deceased, Appellant, v. J.R. FRIDAY, a/k/a John R. Friday.
    Superior Court of Pennsylvania.
    Argued March 18, 1981.
    Filed Jan. 13, 1984.
    Reargument Denied March 27, 1984.

      Kenneth Behrend, Pittsburgh, for appellant.
    Ronald H. Heck, Pittsburgh, for appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.

       Price, J., did not participate in the consideration or decision of this case.

   BROSKY, Judge:

In an action to recover damages for the alleged negligence of Dr. Friday, appellee, in treating James Berry, the late husband of the appellant, the Court of Common Pleas on July 24, 1980 entered judgment on the verdict for Dr. Friday. A new trial was denied by order of the court on April 9, 1980. Mrs. Berry appeals from the judgment raising one allegation of error.

Appellant’s husband, James Berry was feeling ill and checked into a hospital on June 8, 1975 complaining of a severe pain in his chest, nausea and a shortness of breath. He was placed under the care of Dr. Friday, and Mr. Berry was found to have several problems including congestive heart failure, bronchial asthma, diabetes and emphysema. He was treated for asthma and the fluid was reduced in his lungs and heart. On June 15, 1975, Mr. Berry was discharged from the hospital by Dr. Friday, who advised him that since he had a heart condition, he should refrain from smoking and drinking alcohol and should attempt to lose weight. At the time Mr. Berry weighed approximately 275 pounds and smoked between two and three packs of cigarettes a day. Dr. Friday also informed Mr. Berry that he could return to work on June 23, 1975 and that he should begin consultation with another doctor.

Mr. Berry returned to work on June 23, 1975 and suffered a crippling heart attack that same day. Mr. Berry never returned to work and died in March of 1978 from another heart attack. He was found in a wrecked motor vehicle with a high level of alcohol in his blood. This malpractice action was begun by Mr. Berry before he died and a videotaped deposition of his testimony was used at trial. Two theories of negligence were raised at trial, the first being simply that Dr. Friday’s treatment was not proper. The second allegation concerned the fact that Dr. Friday permitted Mr. Berry to return to work shortly after his hospital stay without inquiring into the nature of his employment. Dr. Friday was aware that Mr. Berry was a cement truck driver but failed to inquire about his duties which required the lifting of very heavy materials into the truck.

Besides Mr. Berry’s videotaped deposition, appellants offered the testimony of two expert witnesses, as well as that of his estranged wife and sister. Dr. Friday testified on his own behalf and also provided expert witnesses. At the end of the testimony, the Honorable Ralph Smith, Jr. charged the jury and specific objections were made by the appellant’s attorney. One of these objections concerned the judge’s remarks on the possible contributory negligence of Mr. Berry. The jury returned a verdict for the appellee and appellant challenges this verdict on the basis of the allegedly improper jury charge.

Essentially, appellant raises two separate theories as to the alleged impropriety of the charge. The first argument concerns the ability of the trial judge to make the charge without any request from the appellee and the second argument concerns whether there was evidence to support such a charge.

Where the accuracy of a charge is in issue, an appellate court must look to the charge in its entirety against the background of evidence in order to determine whether or not error was committed and whether that error was prejudicial to the complaining party.

Slavish v. Ratajczak, 277 Pa.Superior Ct. 272, 419 A.2d 767 (1980). See also Smith v. Chardak, 291 Pa.Super. 173, 175, 435 A.2d 624 (1981) and Buchecker v. Reading, 271 Pa.Superior Ct. 35, 53, 412 A.2d 147, 156 (1979). “It is basic to a fair trial that the issues be clearly defined for a jury’s intelligent understanding and that in determining if prejudicial error is present, the entire charge must be considered and its general effect noted.” Smith v. Clark, 411 Pa. 142, 147, 190 A.2d 441 (1963).

Keeping these general principles in mind, we first turn to the issue of whether it was proper for the trial judge to include contributory negligence in his charge without having been requested to do so by appellee.

One of the primary duties of a trial judge is to clarify the issues so that the jury may understand the questions to be resolved. Smith v. Clark, supra. A trial judge is charged with the responsibility of defining all pertinent questions of law. All issues which are relevant, to the pleadings and proof may become the subject of a jury instruction. “Although a certain burden rests on the litigants to submit written points for charge to the court requesting instructions on their theories of the case, it is the duty of the trial judge fully to instruct the jury as to the law applicable to the facts even in the absence of a request by the parties.” Perigo v. Deegan, 288 Pa.Superior Ct. 93, 98, 431 A.2d 303, 306 (1981). While we recognize that a trial judge should not take on the responsibilities of an advocate and introduce theories not raised by the parties, Hrivnak v. Perrone, 472 Pa. 348, 372 A.2d 730 (1977), in certain instances it is correct for the court to charge on questions of law not specifically requested by the parties. Rosato v. Nationwide Insurance Co., 263 Pa.Superior Ct. 340, 397 A.2d 1238 (1979).

In this particular case, appellees introduced evidence from which contributory negligence could possibly be inferred. Mr. Berry, as an overweight smoker and drinker, could have caused his own condition. Thus, instantly, the appellee’s evidence and arguments were consistent with the judge’s charge itself. The trial judge was not acting as an advocate but merely fulfilling his function of clarifying all the legal questions for the jury.

Turning to appellant’s second argument, i.e., whether the charge was in fact warranted by the evidence, we face a more difficult problem. A look at the entire charge is necessary in order to fully analyze the implications. The charge itself covers forty pages of transcript. Three paragraphs of this lengthy charge concern contributory negligence. Because of the complexity of the case, the trial judge took great pains to discuss each aspect of the law. After completing the part of the charge dealing with the Mr. Berry’s case, the trial judge stated generally the law of contributory negligence. Following a discussion of Dr. Friday’s allegations, the trial court went on to repeat the law on contributory negligence, this time tying in the law with its possible application to the facts, specifically mentioning Mr. Berry’s weight and smoking problems.

Appellant objected to this portion of the charge at trial on the basis that the facts did not allow for an inference of contributory negligence. While we agree that the evidence in the case does not strongly favor a finding of contributory negligence, we cannot ignore the slim possibility. As stated by our Supreme Court, “where there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof.” Heffernan v. Rosser, 419 Pa. 550, 554-555, 215 A.2d 655, 657 (1966). Thus we affirm the judgment on the verdict.

      . See e.g., Heymann v. Electric Service Manufacturing Co., 412 Pa. 338, 194 A.2d 429 (1963); Hronis v. Wissinger, 412 Pa. 434, 194 A.2d 885 (1963); Perigo v. Deegan, 288 Pa.Superior Ct. 93, 431 A.2d 303 (1981).

      . We distinguish Hrivnak, supra, on the same grounds that we did in Rosato, supra, i.e., that the Hrivnak issue concerned whether the court could sua sponte charge on a theory steadfastly resisted by the plaintiff throughout the trial.

      . The trial judge also inadvertently substituted Mr. Berry's name in place of that of Dr. Friday. This minor slip is not mentioned by appellant who apparently realizes that the mistake was harmless and unintentional.

      . See Yandrich v. Radie, 291 Pa.Superior Ct. 75, 435 A.2d 226 (1981) in . which we stated that: "It is well established, however, that a party's negligence must be submitted to the jury unless there is no evidence from which an affirmative finding could be made without resort to speculation.” Supra, 291 Pa.Superior Ct. 75, at 78, 435 A.2d 226, at 228. See also Hanlon v. Sorenson, 289 Pa.Superior Ct. 268, 433 A.2d 60 (1981), 257 Pa.Superior Ct. 66, 390 A.2d 249 (1978).


author: SPAETH, Judge: WATKINS, Judge,

text:
    472 A.2d 194
    COMMONWEALTH of Pennsylvania v. Isadore H. BELLIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1979.
    Filed Jan. 20, 1984.
    Petition for Allowance of Appeal Denied Aug. 16, 1984.

      John Rogers Carroll, Philadelphia, for appellant.

      Bernard L. Siegel, Deputy District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, HESTER and WATKINS, JJ.
   SPAETH, Judge:

This case is before us on remand by the Supreme Court. By opinions and order dated July 11, 1980, a panel of this court reversed the judgments of sentence and ordered appellant discharged. Commonwealth v. Bellis, 279 Pa.Super. 421, 421 A.2d 271 (1980) (WATKINS, J., joined by HESTER, J., SPAETH, J., concurring). The Commonwealth petitioned the Supreme Court to allow a further appeal, and on March 13, 1981, the petition was granted. By opinion dated December 23, 1981, the Supreme Court vacated our order of July 11, 1980, and remanded with instructions that we decide issues that appellant had raised before us but that we had not reached. Commonwealth v. Bellis, 479 Pa. 323, 440 A.2d 1179 (1981) (KAUFFMAN, J., O’BRIEN, C.J., and WILKINSON, J., dissenting, NIX, J., not participating in the decision). Appellant petitioned the Supreme Court for reargument, but on February 24, 1982, the Court denied the petition. Appellant then filed a motion with this court, requesting that the matter be reassigned to the three-judge panel that had previously heard his appeal, for supplemental briefing, and for further argument. We granted the motion for reassignment and for supplemental briefing, but denied further argument.

The facts are fully stated in our prior decision, and also, the Supreme Court’s, and we shall therefore only indicate them here. At the time in question, appellant was an elected member and the majority leader of the City Council of Philadelphia. The charge is that appellant and one Joseph Daly were involved in a scheme by which architects working on City projects were required to “kick-back” five percent of their fees to the Democratic City Committee, with the result that John Betts, an architect, paid appellant $9,000. Appellant was tried in the Municipal Court of Philadelphia for conspiracy and extortion under the Penal Code of 1939, and for the common law offenses of misfeasance, malfeasance and nonfeasance in office. He was acquitted of conspiracy and extortion but convicted of the common law offenses. He appealed to the Philadelphia Court of Common Pleas, and after a trial de novo before a jury, was again convicted of the common law offenses. Post-trial motions were denied, and he was sentenced to a term of two to seven years in prison and to pay a fine of $9,000 and the costs of prosecution.

In our prior decision, the majority of the panel, WATKINS and HESTER, JJ., held that the evidence showed that appellant’s actions were punishable as extortion under the Penal Code and that therefore appellant could not be convicted of the common law offenses. This conclusion was based on the provisions of Section 1104 of the Code, 18 P.S. § 5104, that one may not be convicted of common law offenses where the conduct in question is a violation of a specific statutory penal provision. We therefore ordered appellant discharged. 279 Pa.Super. at 427, 421 A.2d at 274. In reversing, the Supreme Court held that the elements of the common law offenses were not the same as the elements of the statutory offense of extortion, from which it followed that even though appellant could have been convicted, and had been acquitted, in Municipal Court of extortion, he might still be convicted in the Court of Common Pleas of the common law offenses. The Supreme Court further held that the evidence was “more than adequate”, 497 Pa. at 331, 440 A.2d at 1183, for the jury to find that appellant had committed the common law offenses. The Court therefore reversed our order discharging appellant and remanded the case.

The issues that we must decide on remand are: (1) whether, when appellant appealed from Municipal Court to the Court of Common Pleas, the Commonwealth impermissibly changed the charges against him; (2) whether, because appellant had been acquitted in Municipal Court of the statutory offenses, the Commonwealth was collaterally es-topped from introducing certain evidence; (3) whether in the charge to the jury the trial court erred in defining the common law offenses; and (4) whether appellant’s sentence was legal. We have concluded that the Commonwealth did not impermissibly change the charges, and that it was not collaterally estopped. We have also concluded, however, that the trial court erred in its charge to the jury, and that the sentence was illegal. We therefore reverse and order a new trial.

-1-

In arguing that when he appealed from the Philadelphia Municipal Court to the Court of Common Pleas, the Commonwealth impermissibly changed the charges against him, appellant particularly relies on Commonwealth v. Nelson, 230 Pa.Super. 89, 326 A.2d 598 (1974). There, the defendant was convicted on two charges in Municipal Court but upon appeal to the Court of Common Pleas, was indicted on those plus two additional charges. In affirming an order quashing the additional charges, we reasoned that Municipal Court proceedings ordinarily serve as a defendant’s preliminary hearing, at which he is made aware of the charges and evidence against him. We therefore concluded that if upon the defendant’s appeal to the Court of Common Pleas the charges are increased, and no further preliminary hearing is provided, with respect to the new charges the defendant has been denied his right to a preliminary hearing.

The facts of this case, however, do not establish a violation of the rule set forth in Nelson. Appellant was fully apprised of the charges and evidence against him in the Municipal Court proceedings. The Municipal Court complaint expressly referred to both statutory extortion and the common law offenses, and appellant was in fact convicted of the common law offenses. On appellant’s appeal from the Municipal Court the Commonwealth did not change or enlarge the charges but merely set them forth in more specific language.

-2-

Appellant’s argument that the Commonwealth was collaterally estopped from introducing certain evidence at the trial in the Court of Common Pleas, may be considered in two parts. Appellant argues that his acquittal in Municipal Court of statutory extortion collaterally estopped the Commonwealth from introducing at his trial in the Court of Common Pleas evidence of payments made by Betts to appellant, and that his acquittal of conspiracy collaterally estopped the Commonwealth from introducing evidence of a May 1971 conversation between Daly and Betts regarding the five percent kick-back scheme.

In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the United States Supreme Court held that the doctrine of collateral estoppel in criminal cases is embodied in the Fifth Amendment guarantee of the United States Constitution against double jeopardy. Under the doctrine, “[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit.” Id. at 443, 90 S.Ct. at 1194. Where a judgment of acquittal is based on a general verdict, a court must examine the record to determine whether “ ‘a rational [fact-finder] could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ ” Id. at 444, 90 S.Ct. at 1194 (citation omitted). See also Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980) (plurality opinion by Justice NIX, analyzing collateral estoppel aspect of double jeopardy).

Appellant argues that the Municipal Court acquittal of statutory extortion necessarily implied a determination that no payments were made by Betts to appellant. We disagree. Appellant relies on the following language in the Suprehie Court’s opinion reversing and remanding to this court:

The conviction of appellee [now, on remand, appellant] for the common law crimes was supported by the evidence and was not inconsistent with acquittal of the extortion charges. The Municipal Court judge reasonably could have concluded that appellee, with an improper and corrupt motive, misused his powerful official position to create the impression that he could and would influence the award of the design contracts, while also finding that appellee’s fraudulent and wilful receipt of an illegal reward or a fee not allowed by law [ie., the $9,000 allegedly paid appellant by Betts] had not been proved beyond a reasonable doubt. See Commonwealth v. Dolny, 235 Pa.Super.Ct. [241] at 249-250, 342 A.2d [399] at 403. 497 Pa. at 330, 440 A.2d at 1182 (footnotes omitted).

Appellant concludes from this language that the only element distinguishing statutory extortion and the common law offenses in this case is the receipt of money. However, we believe that the Supreme Court’s statement is to be understood as saying that the Municipal Court judge rea: sonably could have found that even though appellant did as part of the kick-back scheme receive the money from Betts, thereby misusing his official position with a corrupt motive and committing the common law offenses, the judge also reasonably could have found that the money was not a reward or fee for appellant but for the Democratic Party, and on that basis, have acquitted appellant of statutory extortion. Consistent with this view is the Supreme Court’s statement elsewhere in its opinion that appellant “deliberately created the circumstances under which he or his political party could benefit from a pay-off on a City contract.” 497 Pa. at 331 n. 12, 440 A.2d at 1183 n. 12.

We also disagree with appellant’s argument that the Municipal Court acquittal of conspiracy estopped the Commonwealth from introducing evidence of the May 1971 conversation between Daly and Betts. The acquittal of conspiracy did not imply a determination that the May 1971 conversation did not occur. The Municipal Court judge reasonably could have found that the conversation between Daly and Betts occurred, while at the same time finding that appellant had not agreed with Daly to extort money from Betts. The Municipal Court judge also reasonably could have found that although appellant and Daly did not agree to extort money from Betts, appellant later learned of this conversation and on his own made use of this knowledge. The evidence of the conversation was admissible, not under the co-conspirator exception to the hearsay rule, but as nonhearsay, i.e., not to prove the truth of the matter asserted but to explain Bett’s state of mind and the reason for his actions when appellant later requested money from him. See Commonwealth v. Tselepis, 198 Pa.Super. 449, 181 A.2d 710 (1962). Moreover, the conversation was relevant as nonhearsay because regardless of whether a kickback scheme existed, an inference could be drawn that appellant later learned of the conversation and took advantage of it to obtain money from Betts.

-3-

In arguing that the charge to the jury did not properly define the common law offenses, appellant objects to two features of the charge.

The first feature of the charge that appellant complains of is that the charge was confusing. In part this argument depends on appellant’s contentions regarding collateral estoppel, which we have discussed above and found without merit. Reading the charge as a whole, we do not find it confusing.

The second feature of the charge that appellant complains of is that the charge was “erroneous” and “inapt,” in particular, in that the trial court instructed the jury that appellant could be found guilty of the common law offenses on the basis of his having violated the Philadelphia Home Rule Charter.

The common law offenses of misfeasance, malfeasance, and nonfeasance in office, which may be compendiously referred to as misbehavior or misdemeanor in office, occur when there is “either the breach of a positive statutory duty or the performance by a public official of a discretionary act with an improper or corrupt motive.” Commonwealth v. Peoples, 345 Pa. 576, 579, 28 A.2d 792, 794 (1942) (citations omitted; emphasis added). Here, the trial court charged that appellant could be convicted on both of these bases, i.e., the breach of a positive statutory duty and the performance of a discretionary act with an improper motive. The court described the positive statutory duty in question as being imposed by Section 10-100 of the Philadelphia Home Rule Charter, 31 Pa.Code § 10.10-100. We have concluded that this was error in that in fact appellant could not be convicted of the common law offenses on the basis of having violated his duty under Section 10-100 of the Home Rule Charter.

The reason for this conclusion is that Section 1104 of the Penal Code, Act of June 24, 1939, P.L. 872, 18 P.S. § 5104, provided:

In all cases where a remedy is provided or duty enjoined, or anything directed to be done by the penal provisions of any act of assembly, the direction of said act shall be strictly pursued; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act into effect.

Section 10-100 of the Home Rule Charter is a “penal provision[ ]” because Section 10-109 of the Charter provides that a violation of it “shall be a misdemeanor, punishable by a fine of not more than three hundred dollars or by imprisonment for not more than ninety days, or both, and if the violator is an officer or employee of the City, by removal from office or immediate dismissal.” In addition, Section 10-100 must be regarded as the equivalent of “the penal provisions of [an] act of assembly” because as part of the Home Rule Charter it was enacted under the authority of 53 P.S. § 13131 and article IX, section 2, of the Pennsylvania Constitution and therefore has the force of a statute enacted by the General Assembly. Commonwealth v. Cabell, 199 Pa.Super. 513, 185 A.2d 611 (1962) (since Section 10-109 makes violation of Section 10-108 a misdemeanor, violation must be prosecuted by indictment in quarter sessions court; “[w]hether a municipal charter comes into being by direct statutory grant of the legislature or by adoption by the constituent electorate ..., it is as much legislative in the one instance as in the other and has equal legal force and standing in both”). Therefore: This is a case where, under Section 1104 of the Penal Code, 18 P.S. § 5104, something was “directed to be done by the penal provisions of any act of assembly”, and that being so, “no penalty shall be inflicted ... agreeably to the provisions of the common law.”

The controlling case is Commonwealth v. Peoples, 845 Pa. 576, 28 A.2d 792 (1942). There the defendants, who were city councilmen, were indicted for malfeasance, misfeasance, and nonfeasance in office for having voted upon a measure in which they had a personal or private interest in violation of The Third Class City Law of May 23, 1931, P.L. 932, Article X, Section 1009. They were convicted, but the trial court granted their motions in arrest of judgment. This court reversed, but on further appeal the Supreme Court reversed this court and ordered the trial court’s order granting the motions in arrest reinstated. The Supreme Court noted that the defendants had indeed violated The Third Class City Law. Thus, they had committed the breach of a positive statutory duty. However, the Court held, this breach could not support their indictment for and conviction of malfeasance, misfeasance, and nonfeasance in office because such indictment and conviction were precluded by Section 1104 of the Penal Code. As noted above, Section 1104 provides that “where a remedy is provided ... by the penal provisions of any act of assembly, ... no penalty shall be inflicted, or anything done agreeably to the provisions of the common law____” The Third Class City Law did provide a remedy; specifically, it provided that a councilman who voted upon a measure in which he had a personal or private interest “shall forfeit his office.” The Court therefore concluded that “[sjince a particular mode of proceeding to accomplish removal from office, i.e., by quo warranto, is provided by the Act of 1836, the common law is abrogated by section 1104 of the Penal Code of 1939. Therefore, the indictment cannot be sustained and the learned court below properly arrested judgment.” Id., 345 Pa. at 581, 28 A.2d at 795.

So here: Appellant’s violation of Section 10-100 of the Home Rule Charter could not support his conviction of the common law offenses of malfeasance, misfeasance and nonfeasance in office because Section 10-109 of the Charter provided a remedy, specifically, a fine of not more than three hundred dollars, or imprisonment of not more than ninety days, or both, and removal from his office as City Councilman. It was therefore error for the trial court to charge the jury that one basis on which appellant could be convicted of the common law offenses was his breach of the duty imposed by Section 10-100 of the Charter. To be sure, the court also charged that another possible basis was the performance of a discretionary act with an improper motive. However, it is impossible to know on which basis the jury found appellant guilty. The court’s error in charging on both bases therefore may not be characterized as harmless beyond a reasonable doubt, and a new trial must be granted.

We do not believe that the Supreme Court’s opinion remanding this case forecloses the above analysis, although we find the opinion somewhat unclear in this regard and we acknowledge that the point has caused us difficulty. The Supreme Court held that Section 1104 of the Penal Code of 1939 did not preclude appellant’s prosecution for both statutory extortion and misbehavior in office under the common law. In footnote 11 the Court stated:

We do not find persuasive appellee’s claim that his common law prosecution is barred under Section 1104 becausé of the existence of a provision in the Philadelphia Home Rule Charter which forbids conflicts of interest.
Like the extortion statute, this provision addresses misconduct separate and distinct from the common law crimes, and therefore does not bar prosecution for those crimes. See Commonwealth v. Dolny, 235 Pa.Super.Ct. at 250, 342 A.2d at 403.
497 Pa. at 331, 440 A.2d at 1183.

We do not read this as holding that appellant could properly be convicted of a common law offense on the basis of a violation of Section 10-100 of the Home Rule Charter, just as we do not read the remainder of the Court’s opinion as holding that appellant could properly be convicted of common law offenses on the basis of the commission of statutory extortion. Appellant raised two related issues on appeal: (1) whether the existence of statutory extortion and Section 10-100 precluded prosecution for common law offenses, and (2) whether the trial court properly charged the jury with respect to Section 10-100. As we read the Supreme Court’s opinion: The Court reached only the first of these issues, holding only that the existence of statutory extortion and Section 10-100 do not preclude prosecution for common law offenses. The Court did not reach, and therefore did not discuss, much less decide, the issue of the propriety of charging the jury that appellant could be convicted of a common law offense on the basis of a violation of Section 10-100. Or to state the point differently: To say, as the Supreme Court has said, that Section 10-100 does not preclude prosecution for common law offenses is not to say, as the trial court in its charge to the jury said, that Section 10-100 may be the basis of prosecution for common law offenses. The two statements are different, and one does not follow from the other.

-4-

In challenging his sentence as illegal, appellant argues that no statute authorized his imprisonment for seven years. In his view, the sentence for a common law crime must be comparable to the sentences statutorily prescribed for similar statutory crimes; when this comparison is made, he says, it will be seen that his sentence for seven years is illegal. In response, the Commonwealth argues that there was a statute that authorized appellant’s imprisonment for seven years. Specifically, the Commonwealth relies on the Act of April 5, 1790, 2 Sm.L. 531, § IV, as amended by the Act of April 4, 1807, 4 Sm.L. 393, § 1, which provided a maximum term of seven years imprisonment for all offenses that had been punishable by “burning in the hand, cutting off the ears, nailing the ear or ears to the pillory, placing in and upon the pillory, whipping, or imprisonment for life.” Offenses not within this provision and not otherwise having penalties prescribed by statute were punishable by fine and imprisonment in the discretion of the court. James v. Commonwealth, 12 S & R 220 (Pa.1825). According to the Commonwealth, misbehavior in office was a pillory offense prior to 1790, and therefore was within the Act of 1790 as amended by the Act of 1807.

The Act of March 31, 1860, P.L. 427, No. 375, repealed Section IV of the Act of 1790 and Section 1 of the Act of 1807 so far as altered or supplied by that Act or by the Penal Code of 1860, Act of March 31, 1860, P.L. 382, No. 374. Section 178 of the Penal Code of 1860 provided:

Every felony, misdemeanor or offense whatever, not specifically provided for by this act, may and shall be punished as heretofore.

Section 178 of the Penal Code of 1860 was succeeded by Section 1101 of the Penal Code of 1939, 18 P.S. § 5101, which applies to this case, and which provided:

Every offense now punishable either by the statute or common law of this Commonwealth and not specifically provided for by this act, shall continue to be an offense punishable as heretofore.

The question we must decide, therefore, is whether Section 178 of the Penal Code of 1860 (and so, Section 1101 of the Penal Code of 1939) carried forward the seven year maximum sentence for pillory offenses. This appears to be a question of first impression.

In Commonwealth v. Clopton, 447 Pa. 1, 289 A.2d 455 (1972), the Supreme Court recognized but did not decide this question. On the one hand, the Court said:

There is substantial authority for the proposition that this section [Section 178 of the Penal Code of 1860] gave the courts jurisdiction to determine what the appropriate sentence should be, guided by the rule, however, that “[w]here there is no punishment fixed by statute, the court may pass judgment of a character similar to that provided for the class of offenses to which the particular crime belongs.”
Id., 447 Pa. at 9-10, 289 A.2d at 459 (footnote omitted, emphasis in original).

But on the other hand, the Court said:

An alternative route ... reasons that Section 178 of the 1860 Act making pillory crimes punishable as “heretofore” simply referred to the law existing up until the date the 1860 Act was to take effect____ Thus since the 1807 Act preceded the 1860 penal code, and quite literally constituted the “heretofore,” the seven year standard for the pillory offenses would remain intact.
Id., 447 Pa. at 10, 289 A.2d at 459-60.

We acknowledge that there is support for the second of these alternative lines of reasoning. See Commonwealth v. Peoples, 345 Pa. 576, 28 A.2d 792 (1942) (statutory provision providing for forfeiture of office interpreted to apply to facts of case because it would be “manifestly absurd” to punish the offense under common law with possible penalty of a maximum term of seven years imprisonment); J. Maurer, Notes on Pennsylvania Criminal Law and Procedure, V. 1, 218 (1940) (Penal Code of 1860 did not repeal Acts of 1790 and 1807); S. Sadler, Criminal Procedure in Pennsylvania, V. 2, § 627. (2d ed. 1937) (sentence may be under common law or under Acts of 1790 and 1807). Nevertheless, we prefer the first line of reasoning, interpreting Section 178 as repealing the Acts of 1790 and 1807 and as preserving the then existing punishment — the punishment “heretofore” — for common law misdemeanors not having a penalty prescribed by statute, i.e., fine and imprisonment in the discretion of the court. See, e.g., Commonwealth v. Mohn, 52 Pa. 243 (1866); Commonwealth v. Orris, 136 Pa.Super. 137, 7 A.2d 88 (1939); Commonwealth v. DeGrange, 97 Pa.Super. 181 (1929); Commonwealth v. Flaherty, 25 Pa.Super. 490 (1904). This interpretation is more consistent with the rule of construction that penal provisions are to be strictly construed against the Commonwealth, 1 Pa.C.S. § 1928(b)(1), and with the policy behind the rule, that the accused must have clear notice of the unlawfulness of his conduct and the penalties for it. See Commonwealth v. Broughton, 257 Pa.Super. 369, 377, 390 A.2d 1282, 1286 (1978). We therefore conclude that the trial court was not authorized by the Act of 1790 and the Act of 1807 to sentence appellant to seven years imprisonment, but that the court should have determined the sentence by exercising the discretion conferred on it by Section 178 of the Penal Code of 1860 and Section 1101 of the Penal Code of 1939.

As regards the discretion conferred on the court by Section 178, it has been held, and we agree, that the sentence to be imposed must be similar to that provided by statute for similar statutory offenses. See, e.g., Commonwealth ex rel. Cavalucci v. Smith, 154 Pa.Super. 613, 616, 36 A.2d 732, 733 (1944) (attempt to commit statutory rape “should not carry with it heavier penalty than that prescribed for attempt to commit forcible rape, or assault and battery with intent to commit such rape, under section 93, for which the maximum penalty is five years in the penitentiary.”); Commonwealth ex rel. Swisher v. Ashe, 145 Pa. Super. 454, 21 A.2d 479 (1941) (appellant can not be sentenced to longer term for attempted larceny than is authorized by statute for completed offense); Commonwealth v. Orris, supra, (sentence of 18 months to three years for attempted statutory rape was within statutory punishment prescribed for attempted forcible rape); Commonwealth v. Kelsea, 103 Pa.Super. 399, 157 A. 42 (1931). See also N. Kessler, The Law of Criminal Procedure in Pennsylvania, V. 1, 173 (1961); B. Laub, Pennsylvania Manual of Civil and Criminal Penalties, Sentences, Jurisdiction 26A (1972) (“Thus, it would seem that indecent assault, indecent liberties, etc., being a species of aggravated assault and battery would carry a penalty similar to that provided by statute for aggravated assault and battery.”).

Upon reviewing the Penal Code of 1939, which as we have noted was in effect at the time of the conduct in question here, we have found two statutory misdemeanors that are similar to the common law offense of misbehavior in office: extortion under former 18 P.S. § 4318 and bribery under former 18 P.S. § 4667. Both of these offenses were punishable by a fine not exceeding $500 or imprisonment not exceeding one year, or both. We have also found in the Penal Code of 1939 a statutory felony that is similar to the common law offense of misbehavior in office: bribery under former 18 P.S. § 4303. This offense was punishable by a fine not exceeding $1,000 or imprisonment not exceeding five years, or both. Finally, we have found a provision in the General Municipal Law that is similar to the common law offense of misbehavior in office: acceptance of bribes, by councilmen under 53 P.S. § 553. This offense is punishable by a fine not exceeding $10,000 and imprisonment not exceeding five years.

Given these similar statutory provisions, we hold, applying the standard set forth above, that if on retrial appellant is again convicted, he may not be sentenced more severely than is permitted by the most severe of the above provisions, i.e., a $10,000 fine and five years imprisonment. We do not now decide, however, which of the above statutory offenses is most similar to the offense committed in this case. That decision will in the first instance be for the sentencing judge; the statutory offense that the sentencing judge finds to be most similar to the common law offense of misbehavior in office as provided at the retrial will provide the maximum penalty that may be imposed.

In making this determination the sentencing judge will need to consider the differences among the above statutory offenses. We offer the following guidelines to aid in this analysis. Section 4303 dealt with a limited form of governmental bribery, where an officer accepted or agreed to accept a bribe to influence a matter within the scope of his official duties. Commonwealth v. Bellis, 484 Pa. 486, 399 A.2d 397 (1979). Similarly, 53 P.S. § 553 deals with a limited form of governmental bribery where a councilman’s vote or official acts are influenced. Id. Sections 4667 and 4318 dealt with more general forms of bribery and extortion. Section 4667 dealt with any agent who accepted anything of value “for doing or omitting to do any act, or for showing any favor or disfavor in relation to the affairs or business of his principal.” Similarly, Section 4318 applied to any public officer who “by color of his office” took “any fee or reward whatever, not, or more than is, allowed by law.” The distinction between statutory bribery and statutory extortion turns on whether appellant secured the money through coercion or threats, express or implied, or whether the money was volunteered to him. Commonwealth v. Francis, 201 Pa.Super. 313, 191 A.2d 884 (1963), cert. denied, 375 U.S. 985, 84 S.Ct. 517, 11 L.Ed.2d 472 (1964). The facts of this case as shown upon retrial will determine which of these statutory offenses is most similar to the offense committed in this case.

The judgment of sentence is reversed and the case is remanded for a new trial.

WATKINS, J., files a concurring opinion.

WATKINS, Judge,

concurring:

While I agree with the Majority’s reasoning with respect to the issues covered by its opinion, I feel compelled to note that I am still confused by the apparent inconsistencies between the Supreme Court’s decision in Commonwealth v. Bellis, 484 Pa. 486, 399 A.2d 397 (1979) (BELLIS I) and Commonwealth v. Bellis, 479 Pa. 323, 440 A.2d 1179 (1981) (BELLIS II). Although I note that the Supreme Court did attempt to distinguish between Beilis II and Beilis I, I feel that the holdings in said cases are inconsistent with each other because I do not see how the crimes of bribery and extortion vis-a-vis their relationship to the common law crimes can be distinguished.

      . Appellant’s supplemental brief states that the issue of the propriety of the charge has been "exhaustively covered in [appellant’s] earlier brief____” Supplemental Brief at 1. In appellant’s original brief it is argued at pages 38 through 45 that "the jury instructions on the elements of the offenses charged were erroneous, confusing and inapt."

      . In its supplemental brief the Commonwealth argues that appellant has waived this argument. Supplemental Brief for Commonwealth at 3 n. 2, 5. However, there has been no waiver. On page 41 of appellant’s original brief, appellant, referring to "Point I of this argument, ante, explains why it was error to submit the Charter theory to the jury.” As just discussed, see footnote 1, supra, appellant’s supplemental brief incorporates the argument made in his original brief.

      . The charge read in relevant part as follows:
      Well, then, there are three material elements of the offense known as misdemeanor in office. First, the defendant must be a public officer within the contemplation of law.
      Second, he must have been guilty of an act of commission, that is, doing something, or omission, failing to do something, or of negligent misconduct with respect to the duties of his office which worked an injury to the public or an individual.
      Third, that such act or negligent misconduct must have been done intentionally and with an accompanying mental state known as a corrupt mind.
      The Home Rule Charter of the City of Philadelphia imposes various duties on the elected officials including City Councilmen. One of them is set forth in Article 10-100 as follows: No Councilman shall solicit, benefit by or be interested directly or indirectly in any contract for the purchase of property of any kind to be paid from the City Treasury. Nor shall he be interested directly or indirectly in any contract for the erection of any structure or for the supplying of any services to be paid for out of the City Treasury.

      . It might seem that since we have concluded that a new trial must be ordered, we need not reach the issue of the legality of appellant’s sentence. We nevertheless do reach it, for two reasons: first, in obedience to the Supreme Court’s instructions to decide the issues that we did not decide when this case was last before us; and second, because if on retrial appellant is again convicted, the question of what is a permissible sentence will recur.

      . Although it is arguable that the increase from a maximum of two years, provided by the Act of 1790, to a maximum of seven years, provided by the Act of 1807, was not intended to apply to all the offenses covered by Section IV of the Act of 1790, see, e.g., Hackett v. Commonwealth, 15 Pa. 95 (1850) (legislature had most in view the attempt to commit those offenses that were formerly capital), this court apparently rejected such an argument in Commonwealth v. Schaffer, 221 Pa.Super. 105, 289 A.2d 488 (1972).

      . For purposes of argument, we assume that the Commonwealth is correct, although we note that there is some authority for looking further, to see whether such punishment was in fact actually imposed prior to 1790. Rogers v. Commonwealth, 5 S & R 463 (Pa.1819).

      . And one not likely to recur, since the Crimes Code has abolished common law crimes. 18 P.S. § 107(b).


author: SPAETH, Judge:

text:
    472 A.2d 205
    In the Matter of the ESTATE OF Guernio CONIGLIO, Deceased. Appeal of Josephine ROSSETTI.
    Superior Court of Pennsylvania.
    Argued June 9, 1983.
    Filed Jan. 27, 1984.
    Petition for Allowance of Appeal Denied May 1, 1984.

      John Cooper, Erie, for appellant.
    Evan Edward Adair, Erie, for appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   SPAETH, Judge:

This is an appeal from a decree admitting to probate a will executed by mark. We affirm.

The decedent, Guernio Coniglio, died on October 10, 1979, survived by two daughters, Josephine Rossetti and Margaret Ambrogio. On November 1, 1979, Mrs. Ambrogio offered for probate what purported to be decedent’s will, executed on July 10, 1979, appointing her executrix, and leaving her the entire estate. Mrs. Rossetti challenged the will, claiming undue influence and lack of testamentary capacity. When the matter came up for hearing, on August 27, 1981, she withdrew these claims and instead claimed only that the will had not been properly executed. After hearing this claim, the trial court entered a decree upholding the will. Mrs. Rossetti filed exceptions, but on February 18, 1982, the court dismissed the exceptions and made the decree final.

1

The Probate, Estates & Fiduciaries Code provides:

Every will shall be in writing and shall be signed by the testator at the end thereof, subject to the following rules and exceptions:
sjs * * sjs * *
(2) Signature by mark. If the testator is unable to sign his name for any reason, a will to which he makes his mark and to which his name is subscribed in his presence before or after he makes his mark, shall be as valid as though he had signed his name thereto: Provided, That he makes his mark in the presence of two witnesses who sign their names to the will in his presence.
20 Pa.C.S.A. § 2502(2).

This provision is copied from The Wills Act of 1947, 20 P.S. § 180.1 et seq., and its requirements,, were explained in Rhodes Will, 399 Pa. 476, 160 A.2d 532 (1960), as follows:

To comply with this statutory provision a proponent of this type of will must prove: (1) the inability of the testator to sign his name for any reason; (2) that the mark was made by the testator; (3) that, either before or after the testator made his mark, his name was subscribed; (4) that the subscription of testator’s name took place in his presence; (5) that when testator made his mark two witnesses were present; (6) that these witnesses signed their names to the will; (7) that the subscription of the witnesses’ names took place in the testator’s presence.
Id., 399 Pa. at 479, 160 A.2d 532.

Each of the seven elements thus identified by the Court must be proved by the testimony of two witnesses. Thus, in Rhodes Will the will was held invalid because element (4) was proved by the testimony of only one witness. This “two-witness rulé” was embodied in Section 4(a) of The Wills Act of 1947 (“... no will shall be valid unless proved by the oaths or affirmations of two competent witnesses”), Rhodes Will, supra, and it remains the law, for it has been carried forward as Section 3132 of the Probate, Estates & Fiduciaries Code (“All wills shall be proved by the oaths or affirmations of two competent witnesses ____”). And see Comment to Section 2504.1 of the Probate, Estate & Fiduciaries Code (Section 4(a) of Wills Act carried forward in Section 2504 of Code, which was subsequently repealed because it “unnecessarily duplicated Section 3132” of Code).

The two-witness rule does not require that the proof always be by the testimony of two subscribing witnesses; sometimes the proof may be by non -subscribing witnesses. Rhodes Will, supra. However, Section 3132 of the Probate, Estates & Fiduciaries Code provides that

the proof must be by subscribing witnesses, except to the extent that the register is satisfied that such proof cannot be adduced by the exercise of reasonable diligence.

In summary, then, in deciding whether a will executed by mark may be admitted to probate, three questions must be asked: (1) Has each of the seven elements identified in Rhodes Will been proved? (2) Has each element been proved by the testimony of two witnesses? And (3) if with respect to any element the two witnesses are not both subscribing witnesses, was the register (or trial court, if, as in this case, the register certified the matter to the court) satisfied that in the exercise of reasonable diligence, proof by subscribing witnesses was not possible?

2

As appellant, Mrs. Rossetti argues that two of the seven elements identified in Rhodes Will, supra, have not been sufficiently proved: that the decedent was unable to sign his name at the time he executed the will by making his mark; and that the decedent’s name was subscribed to the will in his presence.

(a)

Generally stated, the evidence was as follows: The decedent’s attorney prepared the will and mailed it to Sebastian Ambrogio, Margaret Ambrogio’s husband, with a letter explaining how a will should be executed when the testator signed by mark. Mr. Ambrogio was a proprietor of a restaurant and bar. He told the decedent that he had received the will, and put it behind the bar. When the decedent said that he wanted to execute the will, Mr. Ambrogio asked Fred Tomassi and Francis Pfister, who were patrons of the restaurant, to act as witnesses. The decedent could speak Italian but only a little English, and Mr. Ambrogio asked Mr. Tomassi to participate because Mr. Tomassi knew both Italian and English. The decedent, Mr. Tomassi, Mr. Pfister, and Mr. Ambrogio gathered around a table near the bar. Mr. Tomassi explained the will to the decedent in Italian and English. The decedent said that he understood, and he put his mark on the signature line at the end of the will. Mr. Ambrogio wrote the decedent’s first name to the left of the mark, and his last name to the right, and Mr. Tomassi and Mr. Pfister signed as witnesses. (There is some conflict in the testimony as to whether Mr. Tomassi and Mr. Pfister signed their names before or after Mr. Ambrogio signed the decedent’s name.) Either that day or the next, Mr. Ambrogio mailed the completed will back to the decedent’s attorney.

The principal witness regarding the decedent’s inability to sign his name was Mr. Ambrogio. On direct examination he testified that “[i]t was necessary” for the decedent “to put his ‘X’.” N.T. 14. On cross examination he acknowledged that the decedent “had, in the past several years, been able to sign his name,” N.T. 24, and, in response to a question from the court, that he had seen the decedent sign his name, id.) but he went on to say that that had been in 1977, and that “at the time of the Will,” the decedent could not sign his name, N.T. 24-25. In addition, the attorney who had prepared the will testified that

I mailed the will out to Mr. and Mrs. Ambrogio with a letter of instruction on how a Will should be executed when somebody had to make a mark because they [sic ] couldn’t make their [sic] signature. I remember that specifically because that’s the only instance when that has ever come up in my practice. N.T.'7.

While not entirely clear, the record sufficiently indicates that in preparing the will, the attorney was acting on the decedent’s instructions. Mr. Ambrogio testified:

[The will] was mailed to me by Attorney English. My father-in-law had requested a meeting with Mr. English for the purpose of a Will and it was made up and I saw it when it came in. N.T. 10.

Finally, the record discloses that as prepared by the attorney, the will recites that “I, Guernio Coniglio, testator, being unable to sign my name because of age and partial blindness, have had my name subscribed for me and in my presence and at my direction by_, whereupon I have made my mark____” A similar recitation appears in the attestation clause.

In Rosato’s Estate, 322 Pa. 229, 185 A. 197 (1936), the Court stated that the question involved was, “May a testator, who is able to write his name, sign a will by mark instead, if he chooses to do so?” Id., 322 Pa. at 230, 185 A. 197. The Court answered, “We are of opinion that he may.” Id. To be sure, this language was probably somewhat too broad, for the evidence showed that the testator’s “choice” was hardly an uninhibited one. Although it appeared that the testator had endorsed checks by signing his name, it also appeared that

he had a serious nervous affliction causing his hand and arm to shake, which made it difficult for him [to sign his name]____ Different methods were used to assist him in writing, such as binding his arm, using elastic and putting alcohol on his hand. When the time came for him to sign the will in the lawyer’s office, he said he was not able to write because he was too nervous.
Id., 322 Pa. at 231-32, 185 A. at 198.

Bregy’s comment seems just:

Rosato’s Estate demonstrates that incapacity is a relative rather than an absolute concept, but it would seem that as a bare minimum it must be proved that the testator chose the easier method of execution because of some sort of disability.
Bregy, Intestate, Wills and Estates Acts of 1947, § 2, ¶ 3, p. 2206 (1949).

Here the proof of “some sort of disability” was not nearly so strong as in Rosato’s Estate; indeed, it may fairly be characterized as careless. Nevertheless, the testimony was uncontradicted that the decedent understood that he was executing his will, and that he had chosen to sign by making his mark; nor did appellant offer any evidence contesting the accuracy of the recitation in the will that the decedent was unable to sign his name “because of age and partial blindness.” On balance, we think the trial court was entitled to find that decedent did have “some sort of disability,” and that because he did, he chose, instead of signing his name, to make his mark as “the easier method of execution.”

It remains to consider whether the two-witness rule was satisfied. We believe that it was. As just discussed, the decedent’s inability to sign his name was proved by two witnesses: Mr. Ambrogio and the lawyer who prepared the will. It is true that neither of these witnesses was a subscribing witness. However, as we have discussed, Section 3132 of the Probate, Estates & Fiduciaries Code provides that “the proof must be by subscribing witnesses, except to the extent that the register is satisfied that such proof cannot be adduced by the exercise of reasonable diligence.” Here we think that the trial court was entitled to find that proof of the decedent’s inability to sign his name could not, by the exercise of reasonable diligence, be proved by the testimony of the subscribing witnesses, Mr. Tomassi and Mr. Pfister. Both testified that they thought it unusual that the decedent should sign by making his mark. N.T. 36, 40. Evidently, therefore, they did not know of the decedent’s inability, testified to by Mr. Ambrogio and the lawyer who prepared the will. This lack of knowledge was to be expected, for they were only casual acquaintances of the decedent. N.T. 28, 38-39. Since the decedent’s inability to sign his name could therefore not be proved by the testimony of the subscribing witnesses, it was proper to prove it by the testimony of two other, non-subscribing, witnesses. Rhodes Will, supra.

(b)

Appellant’s argument that the evidence was insufficient to prove that the decedent’s name was subscribed to the will in his presence depends upon an appraisal of Mr. Pfister’s testimony. For while Mr. Ambrogio testified that he had subscribed decedent’s name, in decedent’s presence and in the presence of Mr. Tomassi and Mr. Pfister, N.T. 17-19, 22-23, Mr. Tomassi had no recollection of seeing decedent’s name subscribed, N.T. 37. Therefore, if the two-witness rule is to be satisfied, it must appear from Mr. Pfister’s testimony that he saw decedent’s name subscribed, in decedent’s presence. Rhodes Will, supra.

Appellant has characterized Mr. Pfister’s testimony as “confused.” Brief for Appellant at 10. However, Mr. Pfister did testify that he saw Mr. Ambrogio subscribe the decedent’s name, after the decedent had made his mark, and in the presence of the decedent and Mr. Tomassi. N.T. 43. It is true that on cross-examination Mr. Pfister admitted that he did not “actually see” Mr. Ambrogio subscribe the decedent’s name but, rather, that he “assumed” that the subscription was done by Mr. Ambrogio. N.T. 51, 53. We find, however, that the evidence supported this assumption, or, to put the matter more accurately, that the trial court was entitled to find that the action by Mr. Ambrogio that Mr. Pfister had “actually see[n]” was Mr. Ambrogio subscribing the decedent’s name on the will. Thus, Mr. Pfister testified that after the decedent made his mark and he and Mr. Tomassi had signed their names, he saw Mr. Ambrogio pick up a pen, N.T. 48, 51, stoop over the will, N.T. 43, 55, and write something on the will; that the decedent’s name was not written on the will when the decedent made his mark, N.T. 43, 50; but that after Mr. Ambrogio wrote something on the will, the decedent’s name was written on the will:

Q. [Appellant's attorney] And then when did you see that, Guernio Coniglio on there?
A. [Mr. Pfister] Right after he [Mr. Ambrogio] put it down and we all had done our particular signing, then Ben [Mr. Ambrogio] put his — wrote that on there. '
Q. How do you know that that’s his signature?
A. I assumed that’s his signature because that’s the way he writes.
Q. That’s the way he writes?
A. I’m sure.
Q. You’re basing that—
A. I’m basing that because he wrote it there.
N.T. 46

Again, it must be noted that the proof of subscription was not by two subscribing witnesses; it was by one subscribing witness, Mr. Pfister, and by Mr. Ambrogio. However, this did not contravene Section 3132 of the Probate, Estates & Fiduciaries Code, for since Mr. Tomassi, the other subscribing witness, had no recollection regarding the subscription, proof of subscription could not, by the exercise of reasonable diligence, be made out from his testimony; it was therefore proper to prove subscription by a combination of the testimony of one subscribing and one non-subscribing witness. Rhodes Will, supra.

In thus reaching our conclusion that the elements of execution challenged by appellant were adequately proved, by two witnesses, we have been mindful that the proof was not exemplary. Indeed, we have characterized the proof of inability to sign as “careless,” and the proof of subscription is also somewhat suspect, for Mr. Pfister acknowledged that at his pretrial deposition, when asked whether he knew who had subscribed the decedent’s name, he had answered, “I have no idea about that one.” N.T. 50. Nevertheless, he explained the answer by saying that he had made it without giving the matter sufficient thought, N.T. 51, and further by saying, as we have discussed, that he had assumed that Mr. Ambrogio had made the subscription.

The trial court, too, was mindful of the weaknesses in the proof and yet accepted it. In doing so, the court pointed out that

these two witnesses [Mr. Tomassi and Mr. Pfister] ... have absolutely no interest in this matter and one of [them, Mr. Pfister,] just happened to walk in at the time a witness was needed, [and] could not recall every little detail required of them at the hearing. The hearing was held two years after the Will was executed.
Slip op. at 5.

In this regard, it may be noted that Mr. Ambrogio was also, at least in large part, a disinterested witness, for while his wife was the executrix and sole beneficiary under the will, they were separated. Thus, when asked about his interest, he replied:

No. I have no interest. In fact, I’m in the middle of a divorce action. I have no interest in this whatever. I benefit nothing from this.
N.T. 20.

The trial court also noted this testimony. Slip op. at 3.

In concluding its opinion, the court stated that it “[found] that all the witnesses were credible” and that “[r]eading the entire testimony of each witness, this court is of the opinion that this Will was properly executed and that all the requirements of the Probate Code were met.” Slip op. at 5. We have not been persuaded that we should disturb this conclusion.

We are aware that upholding the will results in the disinheritance of Mrs. Rossetti, one of the decedent’s two daughters. However, it has long been the law that “the intention of the testator is of primary importance, the lodestar, cornerstone, cardinal rule. [] So that that intention shall be given full expression, it can be denied only where it is unconstitutional, unlawful, or against public policy.[]” In Re Estate of Janney, 498 Pa. 398, 401, 446 A.2d 1265, 1266 (1982) (footnotes omitted). No such claim is made, nor does anything suggest that it could be made, here.

Affirmed.


author: CAVANAUGH, Judge:

text:
    472 A.2d 211
    COMMONWEALTH of Pennsylvania v. Lamont HENDERSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1983.
    Filed Jan. 27, 1984.
    Petition for Allowance of Appeal Denied Oct. 15, 1984.

      Robert Scandone, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   CAVANAUGH, Judge:

In this case the appellant, Lamont Henderson, was tried before Stout, J. and a jury. After a lengthy trial he was found guilty of first degree murder, robbery and possessing an instrument of crime. The appellant’s post-trial motions were denied and he was sentenced to life imprisonment for murder and concurrently to ten to twenty years for robbery and two and one-half to five years for the weapons offense. An appeal has been taken to this Court from the judgment of sentence.

We must view the evidence in the light most favorable to the Commonwealth as verdict winner, and accept as true all evidence and reasonable inferences therefrom, upon which, if believed, the factfinder could properly have based its verdict. Commonwealth v. Helm, 485 Pa. 315, 402 A.2d 500 (1979). Applying this test, the evidence established that a Philadelphia Police Officer, Jack Holcomb, Jr., advertised his 1979 Pontiac Trans-Am for sale in a local newspaper. The appellant, in response to the ad, called Officer Holcomb’s house to inquire about the car. He spoke to Mrs. Holcomb as Officer Holcomb was not at home. On June 1, 1981, the appellant approached two acquaintances, Cecil Wright and James Parker, who went by the nickname of Bam, and asked if they knew where he could obtain a .38 or .32 calibre gun. They told him they didn’t know and he asked them if they thought a .25 calibre automatic would kill someone. Bam told him that he thought so “if you shoot him in the head.” Appellant asked Bam and his friend if they would kill the individual who was going to come to his house in connection with the sale of his car and they refused. Appellant then described how he would shoot the individual from behind after he brought him into the dining room.

On June 2, 1981 the decedent told his wife that Lamont Henderson had offered him $4,000.00 to hold the car for him so that no one else would buy it. On the early morning of June 3, 1981 he told her that he was supposed to meet with the appellant that day and that they were going to go to the credit union concerning the car that the decedent was selling and afterwards he was going to Campus Datsun to pick up a car that he was going to buy. A friend of the decedent, Arthur N. Sanbo.rn, III, also testified that on June 3, 1981, the decedent told him that he was “to see a gentleman that was going to buy the car from him.” In addition, the decedent’s father testified that he spoke to his son on the night of June 2, 1981, and the deceased told him of his plan to sell his car to the appellant on the next day.

On the afternoon of June 3, 1983 at about 2:30 p.m. Officer Snyder, a member of the Philadelphia Police Department, saw the deceased and the appellant together on the 1600 block of South 56th Street. The appellant told Officer Snyder that he was going to buy the decedent’s car. The decedent was also observed on the same day by a neighbor of appellant getting out of his car near appellant’s home. She subsequently saw the decedent sitting in the appellant’s dining room. The appellant lived at 1813 South Cecil Street, Philadelphia, Pennsylvania, with Ms. Cheryl White and her two children. Ms. White returned home at about 3:00 p.m. on that date. Ordinarily she would have arrived home at about noon but the appellant told her not to hurry home on that day. When she arrived at the house she observed the decedent sitting on a chair in the dining room. There was a brown puddle on the floor in back of the chair. He looked like he was asleep when she first saw him, and she told the appellant to “get the shit out of my house.” He did nothing with respect to the decedent at that time but instead took Ms. White for a drive in the decedent’s automobile. After a short time she objected as she “didn’t like riding in a dead man’s car.” Appellant and Ms. White remained outside the house for over an hour. When they returned to the house the body was still there. Ms. White went to the bedroom upstairs and she heard “a scuffle and something going bump” from the direction of the dining room. A short time later the appellant came upstairs and asked for a towel or rag which she gave him.

At about 2:30 a.m. on June 4, 1981, the appellant went to the residence of James Parker (Bam) and asked him to help him remove a carpet from his basement as he wanted to place it in an abandoned house. The two then drove back to the appellant’s residence in the decedent’s automobile and the appellant gave Mr. Parker a ring and watch which had belonged to the decedent. After arriving at the house the two men went to the basement where the rug was located. At this time Parker observed a leg sticking out of the carpet.

At approximately 4:00 a.m. on June 4th two police officers who were investigating a missing persons report pertaining to Officer Holcomb arrived at the residence where appellant lived. They observed the decedent’s automobile parked nearby. They immediately proceeded to the house where the appellant lived and were admitted by Ms. White who told them that Lamont Henderson was not at home. The police noticed a strong odor of disinfectant in the dining room. As they proceeded to the rear of the house the appellant came running up the cellar steps. He was arrested immediately and at this time the police observed blood on the cellar stairs. Appellant stated that “Bam did it and I was just helping him move him.” The police went down into the basement where they located Officer Holcomb’s body and also found Mr. Parker who was still in the basement. Officer Holcomb had been shot through the back of the head.

The police searched the house and located a spent casing of a .25 calibre bullet in the dining room. The deceased officer’s service revolver, police identification badge and initialed attache case was located on the second floor of the house.

The appellant’s first contention is that the court below erred in admitting evidence of statements by the decedent of his intention to sell his automobile to the appellant. Appellant contends that the evidence was admitted not merely to show the decedent’s intention concerning his future activities but to establish specific conduct of the decedent. The appellant objected to the testimony of decedent’s wife, his father and his friend, Mr. Sanborn, which dealt with what the decedent intended to do on June 3, 1981. There is no doubt that the testimony was hearsay but there is a “recognized exception to the rule barring admission of hearsay testimony for those out-of-court declarations which are offered to prove the declarant’s state of mind.” Commonwealth v. Williams, 270 Pa.Super. 27, 41, 410 A.2d 880, 887 (1979). See also, Binder, The Hearsay Handbook (Second Edition), Exception 3; Federal Rule of Evidence 803(3); Commonwealth v. Wright, 455 Pa. 480, 317 A.2d 271 (1974). In the Williams case, the appellant objected to testimony by the decedent’s mother that on the day prior to the decedent’s death she told her that she had made an appointment with an attorney to commence divorce proceedings against the appellant. The court held that this statement of intent was “classically a state of mind declaration admissible under the exception.” 270 Pa.Super. at 42, 410 A.2d at 887.

In Commonwealth v. Marshall, 287 Pa. 512, 135 A. 301 (1926) the court, affirming a conviction of murder, approved admission of testimony that the victim, on the morning of the day that she was killed, told a fellow passenger on a train that she was going to meet defendant that evening. The court stated at 287 Pa. 522, 135 A. 304:

Intention, viewed as a state of mind, is a fact, and the commonest way for such a fact to evince itself is through spoken or written declarations. It is, therefore, because of the impossibility, in many cases, of proving intention apart from personal declarations, that they are admitted. The true basis of their admission, then, is necessity, because of which an exception to the hearsay rule is recognized, ...

Accord: Commonwealth v. Wilson, 394 Pa. 588, 148 A.2d 234 (1959); Commonwealth v. Lowenberg, 481 Pa. 244, 392 A.2d 1274 (1978).

In Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978), which was also a murder case, the appellant objected to testimony by the decedent’s sister that the decedent told her in a telephone conversation that the appellant was expected to visit her that evening. The Supreme Court pointed out at 478 Pa. 233, 234, 386 A.2d 526:

Appellant contends that this testimony was hearsay and improperly admitted. It is argued that the only purpose for the admission of the evidence was to establish the truth of the remark that appellant would be at the home of the deceased later that evening. If, in fact, this was the purpose of the challenged evidence, then appellant would be correct in his assertion that this evidence would represent a classic example of hearsay evidence. However, we are satisfied that this evidence was admissible to show the state of mind of the victim, evidencing her intent to remain at the house and her willingness to admit him. This testimony was particularly crucial in view of the evidence that the house was kept secured and that persons would not be admitted unless known to the occupants.

In Commonwealth v. Lowenberg, 481 Pa. 244, 392 A.2d 1274 (1978), also a murder case, the appellant objected to the introduction of a statement by the decedent that she wanted to see the appellant in connection with a serious financial matter. The Supreme Court held that the statements were within the “state of mind exception” to the hearsay rule and properly admissible. The court stated that: “... the admission of this type of evidence is justified because the circumstances in which these utterances were made indicate that they accurately reflected the declarant’s state of mind at that time and there was an absence of a motive to deceive.” 481 Pa. at 255, 392 A.2d at 1279.

In the instant case, the appellant’s counsel argued at trial, as he does on appeal, that the evidence was used to establish the decedent’s actual conduct on the day of the homicide, namely that he had in fact gone to the appellant’s residence in Southwest Philadelphia. This contention is without merit. The objected to testimony merely established that it was the decedent’s intent to meet with the appellant on June 3, 1981 in connection with the sale of the decedent’s automobile to the appellant. The testimony does not establish that he went to the appellant’s residence but that he merely intended to do so. Independent testimony established that the decedent was at the appellant’s house on June 3, 1981. We are convinced that the testimony falls clearly within the “state of mind” exception to the hearsay rule.

Appellant’s second contention is that the court erred in not permitting evidence of the circumstance surrounding the administering of a lie detector test to the appellant. The appellant concedes that the results of polygraph examinations are not admissible in evidence for any purpose. See Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976). The results are not even admissible when both the defendant and prosecutor stipulate that they may be admitted in evidence. Commonwealth v. Pfender, 280 Pa. Super. 417, 421 A.2d 791 (1980). Nevertheless, the appellant argues that the Commonwealth used the setting of the polygraph examination and interview as subterfuge to obtain statements. The appellant does not refer to any statements which might have resulted from coercion induced by the lie detector test. There was no evidence of chicanery or subterfuge pertaining to the polygraph examination and the court properly excluded the evidence.

Judgment of sentence affirmed.

      . In connection with the appellant’s request that Wright and Parker (Bam) kill the decedent, Wright testified as follows:
      A. He asked both of us. I told him I was on probation, I wasn’t going to do it, and Bam told him he didn’t have the heart to pull the trigger.

      . Mr. Parker testified concerning the manner in which the appellant was going to carry out the homicide as follows:
      BY MR. KING:
      Q. What, if any, question was asked of you by Mr. Henderson? Withdraw the first question.
      A. He said would we like to kill him for him.
      Q. Who was he talking to?
      A. He was talking to me and Cecil Wright.
      Q. What did you say?
      A. I said no because I wouldn’t have the heart to pull the trigger. Q. What did he next say?
      A. He said, “Well, this is how I plan to do it.”
      Q. How did he tell you he had planned to do it?
      A. He was going to bring the officer over his house.
      MR. SCANDONE: Objection. Excuse me. I apologize.
      THE COURT: Go ahead.
      THE WITNESS: He was going to bring the officer over his house, sit him in the dining room chair with his back toward the door. He was going to have the gun sitting in the chair near the front door under the cushion and he was going to walk to the front door, get the gun from under the chair, walk behind him and shoot him.

        BY MR. KING:
      Q. What did you say when he told you that?
      A. I said, well, that's his business.

      . Mrs. Holcomb’s testimony concerning this was as follows:
      Q. What, if anything, did he say he was going to do on June the 3rd of 1981?
      MR. SCANDONE: Objection, Judge.
      THE COURT: Overruled.
      THE WITNESS: Well, that morning I was supposed to call him at 8:30 in the morning and wake him up and he was supposed to go out to Neil’s Sportmotive in Bryn Mawr to have his steering wheel taken out of the car. He had a special steering wheel and his radio. He had a special radio. Have that taken out of the car and have the original steering wheel replaced and the original radio replaced in the car. Then he was supposed to — after that — after he did that he was supposed to meet with Lamont Henderson and they were supposed to go to the credit union and transact their business with the car, then he was supposed to go to Campus Datsun to pick up his other car, the car that he was going to buy.

      . The testimony of Mr. Sanborn in this respect was as follows:
      Q. Did he indicate to you what his intentions were upon leaving? A. Yes, sir.
      Q. What did he say?
      A. He was going to take his car and go down to a place in South Philadelphia to see a gentleman that was going to buy the car from him, and then he was going to go to the Credit Union to transfer the title of that car to the new owner, then he was going to go pick up another car and go to work.
      Prior to Mr. Sanborn's testimony counsel for the appellant made the following objection which was overruled by the court:
      MR. SCANDONE: Judge, just to make it easier, I don’t want to keep on having to object every time someone testifies on what Jack E. Holcomb, Jr., had said that day.
      My objection is — I understand that because he’s deceased it can go to the state of mind. But I object, Your Honor, to the District Attorney using it as conduct or for his conduct of the day. I think that is what he has been trying to do with the wife and what he may try to do with this man.
      I understand, as I’m saying, that if it’s used only for the state of mind, Judge, then—
      THE COURT: That is what it is.
      MR. SCANDONE: The reason I’m objecting, Judge, is — I can tell the Court I have a continuing objection.
      THE COURT: And you have a continuing overruled.
      MR. SCANDONE: I don’t want to just keep doing it in front of the jury.
      [Side-bar conference concluded.]

      . The fact that the decedent intended to meet with the appellant was relevant and it made it more likely that he subsequently met with defendant than if he had no such intention. The fact that Holcomb met with defendant on the day of the murder makes it more likely that defendant murdered him than if he had not met with defendant that day. At least the jury could so infer.
      In the leading case of Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706, (1892) the beneficiary sued for the proceeds of a policy of insurance on the life of John Hillmon. The insurance company defended by alleging that the body found in a miner’s camp was that of a man named Walters, not Hillmon. The insurance company unsuccessfully sought to introduce evidence of letters written by Walters to his sister and fiance approximately two weeks before the body was found, in which Walters declared his immediate intention to accompany Hillmon on a westward journey. The Supreme Court held it reversible error to exclude this evidence. After holding that an assertion of then existing intent is an exception to the hearsay rule, the Supreme Court explained its relevance, 145 U.S. at 295-296, 12 S.Ct. at 912-913:
      The letters in question were competent, not as narratives of facts communicated to the writer by others, nor yet as proof that he actually went away from Wichita, but as evidence that, shortly before the time when other evidence tended to show that he went away, he had the intention of going, and of going with Hillmon, which made it more probable both that he did go and that he went with Hillmon, than if there had been no proof of such intention. In view of the mass of conflicting testimony introduced upon the question whether it was the body of Walters that was found in Hillmon’s camp, this evidence might properly influence the jury in determining that question.
      Accord: Ickes v. Ickes, 237 Pa. 582, 85 A. 885 (1912); Hughes v. Bailey, 202 Pa.Super. 263, 195 A.2d 281 (1963).
      Testimony concerning assertions made by Officer Holcomb that he intended to visit defendant on the day of his murder was hearsay, but was admissible under an exception to the hearsay rule. Such testimony had probative value as circumstantial evidence that Officer Holcomb carried out his intention and met with defendant at or about the time that he was killed.

      . Appellant offers the following cross-examination at the suppression hearing to justify presentation to the jury the circumstances surrounding the polygraph examination:
      "By Mr. Scandone:
      Q. Officer, when the man was brought down to you, he signed or he was asked to sign a polygraph examination consent form which has been marked Commonwealth's Exhibit — is it?
      Mr. King: C-6C.
      By Mr. Scandone:
      Q. C-6C. Do you have that in front of you, sir?
      A. Yes, sir.
      Q. That basically tells the defendant that anything he says will be used against him; is that correct?
      A. Yes, sir.
      Q. You are personally aware, are you not, that polygraph examination results are not admissible at trial; is that correct?
      A. Yes, sir.
      Q. Did you tell that to the defendant?
      A. No, sir.
      Mr. King: Objection, Your Honor.
      The Court: Sustained.
      Mr. Scandone: If Your Honor please, I think it’s relevant why the statements or whatever statements were made by the defendant—
      The Court: Still sustained.
      Mr. Scandone: Still asked.
      By Mr. Scandone:
      Q. Now, when you were asked to do an examination, sir, what did you consider your responsibilities to be?
      "Mr. King: Objection.
      The Court: Sustained.
      "By Mr. Scandone:
      Q. Well, sir, when you were asked to give an examination, was your responsibility to give an examination, or was your responsibility to try to get a statement from the defendant?

        A. Both.
      Q. Isn’t one different than the other, sir?
      Mr. King: Objection.
      The Court: Overruled.
      The Witness: No, sir.
      Shortly thereafter, the following exchange occurred between counsel for appellant and the lower court:
      "The Court: You aren't questioning the fact that our machine is the standard machine, are you?
      Mr. Scandone: No.
      The Court: All right. Sustained.
      Mr. Scandone: I am questioning, however, what his function was as a polygraph examiner.
      The Court: We know what his function was. It was to give a polygraph test. What is next?
      Mr. Scandone: That is a matter of — we will do that in front of the jury, Judge.
      The Court: No, you are not going to argue about the polygraph in front of the jury.
      Mr. Scandone: We are going to argue about what his function was.
      The Court: No, you are not going to do that either. Go ahead. What is next?"