author:
OLSZEWSKI, Judge:
      BECK, Judge,

text:
    606 A.2d 939
    COMMONWEALTH of Pennsylvania v. Sean L. SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 22, 1991.
    Filed April 24, 1992.

      Floyd P. Jones, York, for appellant.
    William H. Graff, Jr., Asst. Dist. Atty., York, for Com., appellee.

      Before OLSZEWSKI, BECK and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence imposed after Sean Smith was convicted of criminal conspiracy to deliver controlled substances. The jury acquitted Smith of the charges of possession of a controlled substance with intent to deliver and delivery of controlled substances. Timely post-verdict motions were filed and denied, and Smith was sentenced to a three-to-six-year term of imprisonment. This timely appeal followed.

On appeal, Smith raises six issues for our consideration. First, Smith contends that the trial court erred in failing to suppress evidence seized at his apartment. Second, he contends that the trial court erred in denying him access to the psychiatric records of a witness who testified against him. Third, Smith alleges error for the trial court’s refusal to allow defense counsel to cross-examine that witness as to his history of psychiatric treatment. Fourth and fifth, Smith presents two allegations of error as to hearsay testimony which occurred at trial: first, that a mistrial should have been granted; second, that the curative instruction highlighted the hearsay testimony. Smith’s final assertion of error is the trial court’s failure to grant his motion for a directed verdict on the conspiracy charge. Finding merit to none of Smith’s contentions of error at his trial, we affirm the judgment of sentence.

The relevant facts of this case may be summarized as follows. A confidential police informant purchased cocaine from Michael March. Following his apprehension, March told police he had purchased the drugs from Smith at Smith’s apartment using the $4,100 which March had received from the informant, who in turn had received it from the police.

Trooper Voggenreiter proceeded to Smith’s apartment while Trooper Kessler obtained a search warrant for the premises. At Smith’s apartment, Voggenreiter observed a marijuana pipe in plain view on a table through an open doorway to the hall. In response to Voggenreiter’s knock at the doorway, Smith came through another doorway, which was covered by a blanket, and then fled back to the separate room when Voggenreiter identified himself. The police secured the premises and arrested Smith. The premises were searched when Kessler arrived with a warrant. This search produced 1.1 grams of cocaine, two drug record books, mail addressed to Smith, Smith’s wallet, and $11,450 from above the ceiling tiles. Among the money was the $4,100 in marked bills used by March to purchase the cocaine earlier that evening.

As to appellant’s first allegation of error, we find no basis for suppression of the evidence seized because the premises were searched only after the presentation of a search warrant. (Suppression transcript [S.T.] of May 22, 1989, at 19.) Appellant’s related allegation of error therefore fails.

Appellant’s second allegation of error is controlled by a recent en bane decision by this Court. Commonwealth v. Kennedy, 413 Pa.Super. 95, 604 A.2d 1036 (1992). Smith attacks the trial court’s refusal to allow him access to the psychiatric records of March, for the purpose of impeachment, and cites Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989), in support of his argument. Appellant argues that Lloyd entitles him to examine the privileged records of the witness, March. However, March’s records were not in the possession of the Commonwealth; they were held at the facility where he was treated. No error lies in denying Smith access to these records, because they are absolutely privileged and shielded from discovery, absent the consent of the patient. At the time Lloyd was decided, the statutory protection now afforded to psycho-therapeutic records was not in effect. Therefore, the Lloyd Court was not required to analyze whether the defendant’s right to these records was subject to any restriction. In the interim, psychotherapeutic records have been afforded a privilege; this statutory protection directs our disposition of this issue.

Accordingly, in Kennedy, we held that where psychotherapeutic records are not in the prosecution’s possession, and are subject to the protection of a statutorily enacted absolute privilege, a defendant’s rights of confrontation and compulsory process are not violated by a denial of access to those records. In accordance with our disposition of this issue in Kennedy, we find no basis upon which to afford appellant relief pursuant to his second allegation of error. March’s psychiatric records are statutorily protected and are not subject to discovery.

Appellant’s third contention of error is that it was error to prohibit him from cross-examining March about his psychiatric treatment for impeachment purposes. The Commonwealth argues that Smith conceded that March was competent to testify and, therefore, cannot use March’s psychiatric treatment as a basis for impeachment. We agree, finding that Smith waived any objection he may have harbored regarding March’s testimony.

At appellant’s suppression hearing, the court asked defense counsel whether he was requesting a hearing to determine March’s competency to testify. Defense counsel stated he was not. (See S.T. at 8-9.) Upon conclusion of the suppression hearing, the court ruled on the Commonwealth’s motion in limine, which requested that cross-examination on March’s psychiatric treatment be barred. The court granted the Commonwealth’s motion, for the reason that “there has been no showing or no attempted showing that the Commonwealth witness is incompetent to testify.” (S.T. at 37-38.) The court then stated that any testimony or inquiry into March’s competency was irrelevant. (S.T. at 38.) No objection was raised at that time by defense counsel.

More importantly, no objection was raised at trial. March testified and was cross-examined by appellant’s counsel with no reference or objection to March’s competency. Appellant’s arguments notwithstanding, “this Court may not raise issues sua sponte which were not properly preserved in the trial court.” Commonwealth v. Willis, 380 Pa.Super. 555, 580, 552 A.2d 682, 694 (1988). To preserve an issue for review, a party must make a timely and specific objection at trial, and “Superior Court will not consider a claim on appeal which was not called to the trial court’s attention at a time when any error committed could have been corrected.” Noecker v. Johns-Manville Corp., 355 Pa.Super. 463, 471, 513 A.2d 1014, 1018 (1986); DiSalle v. P.G. Publishing Co., 375 Pa.Super. 510, 544 A.2d 1345 (1988); 42 Pa.C.S. § 227(1)(b); see also Commonwealth v. Bullock, 359 Pa.Super. 150, 518 A.2d 824 (1986) (holding that failure to object to an offer of evidence at the time the offer is made, assigning grounds for objection, is waiver upon appeal of any ground of complaint against admission). Our Supreme Court has explicitly stated that to preserve an issue for appellate review, an appellant must make a timely objection at the appropriate stage of the proceedings before the trial court, and must specifically raise the issue in post-trial motions. Reilly by Reilly v. Southeastern Pennsyl vania Transportation Authority, 507 Pa. 204, 214, 489 A.2d 1291, 1296 (1985). Appellant has failed to preserve his objection to March’s competency. We are therefore precluded from examining the substance of this allegation of error.

Even assuming in this case that we held appellant did not waive the issue of cross-examination on competency, we would decline to reverse the trial court’s finding that March was competent to testify. This Court was held that “because a trial judge has a superior opportunity to assess the competency of a witness, an appellate court should virtually never reverse a competency ruling.” Commonwealth v. Anderson, 381 Pa.Super. 1, 6, 552 A.2d 1064, 1067 (1988); Commonwealth v. Davis, 394 Pa.Super. 591, 596, 576 A.2d 1005, 1008 (1990). Therefore, the determination of a witness’s competency to testify will not be disturbed on appeal unless there exists a clear abuse of discretion. Id. A “trial court need not order an investigation of a witness’s competency, unless he or she has some doubt of such after having observed the witness.” Commonwealth v. Fulton, 318 Pa.Super. 470, 484, 465 A.2d 650, 657 (1983). The trial judge in this case observed no evidence of incompetency and ruled March fit to testify. We would not reverse this finding.

As to the fourth and fifth allegations of error, we recognize that Trooper Voggenreiter's testimony did contain hearsay statements. (Trial transcript [T.T.] of May 22, 1989, at 54.) However, the mention of appellant’s name by a co-offender, as testified by Trooper Voggenreiter, was harmless. Immediately thereafter the court gave a comprehensive curative instruction. (T.T. at 55.) Defendant now alleges that the instruction highlighted the hearsay and is thus grounds for a mistrial. We disagree.

The suggestion that the jury convicted appellant based upon this passing reference is without merit. The Commonwealth presented abundant other evidence, including testimony by Michael March that he obtained drugs from appellant. We have held that error is harmless when the prejudice accruing to appellant is minimal compared to the Commonwealth’s overwhelming evidence of guilt. Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987). Such is the case here; no error resulted from the curative instruction and the allegation that a mistrial was warranted is without merit.

On appellant’s sixth allegation of error, we find that the trial court properly denied the motion for a directed verdict on the conspiracy charge. Appellant alleges error because the jury found him guilty of conspiracy while finding him not guilty of delivery and possession. This apparent inconsistency is not grounds for relief. We have held that the agreement necessary for conspiracy may be inferred from a variety of circumstances, including: the relationship between the parties; circumstances surrounding the crime; and, knowledge of and participation in the crime. These factors may assemble to establish conspiracy beyond a reasonable doubt, even where one factor alone might fail. Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292 (1990).

In Smith’s case, evidence was presented that co-offender March phoned appellant and ordered cocaine. (T.T. at 24.) March purchased the cocaine from appellant (T.T. at 27), and upon his arrest, March divulged his source — appellant. (T.T. at 30.) Evidence was presented that appellant harbored a large amount of cash, drug records, and packaging material at his residence. The jury found these factors sufficient to prove the drug-selling operation, and found appellant guilty of conspiracy, even though it acquitted him of delivery and possession. As we held in French, this is a proper determination, and appellant’s allegation of error must fail.

Because we find merit to none of appellant’s assertions of error, we affirm the judgment of sentence.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting.

Although I agree with the majority’s resolution of appellant’s first five claims of error, I conclude that appellant should prevail on his final claim that the evidence of conspiracy was insufficient to convict. I limit my discussion to the sufficiency of the evidence.

Appellant Sean Smith was charged with possession of a controlled substance with intent to deliver, delivery of controlled substances, and conspiracy to commit possession with intent to deliver controlled substances. Following a jury trial, Smith was acquitted of the first two charges but found guilty of criminal conspiracy.

“The test to be utilized in determining if a directed verdict should be granted is ‘if the prosecution’s evidence, and all inferences arising therefrom, considered in the light most favorable to the prosecution are insufficient to prove beyond a reasonable doubt that the accused is guilty of the [crime] charged.’ ” Commonwealth v. Potts, 314 Pa.Super. 256, 278, 460 A.2d 1127, 1138 (1983) (citations omitted).

Viewing the evidence in accordance with the above standard, the following evidence was adduced at trial. On June 20, 1988, confidential informant Richard Siegel agreed to participate in a “sting” operation wherein he would purchase a quantity of cocaine with $4,100.00 in “marked” money. That same day, Russell Wilson was asked and agreed to secure cocaine for Siegel. Wilson then approached Michael March, who communicated with appellant Smith, his “supplier.” After March had confirmed that appellant Smith could supply the cocaine, Siegel, Wilson and March drove to a street near an art school. During the ride, Siegel handed $4,100.00 to March.

At the art school, the vehicle stopped and March alone exited the vehicle. Forty-five minutes later, he returned with two and one-half ounces of cocaine. Thereafter, the vehicle was stopped and the occupants arrested. After his arrest, March told the police that he left the vehicle to go to Smith’s apartment and therein gave Smith $4,100.00 in exchange for two and one-half ounces of cocaine. March also told the police where Smith lived. Pursuant to this information, the police proceeded to Smith’s apartment. Because the apartment door was open, the police officers were able to observe drug paraphernalia on the kitchen table. When the officers entered the apartment, they located Smith and arrested him. Later, another officer arrived with a search warrant, and a search pursuant thereto revealed packages of cocaine, various empty “baggies”, records of drug transactions, and a large amount of cash. Among the evidence seized was marked bills totaling $4,100.00

In addressing Smith’s claim, we initially refer to the definition of criminal conspiracy, as set forth in the Crimes Code:

(a) Definition of conspiracy, — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime;

18 Pa.C.S.A. § 903(a)(1). See also Commonwealth v. Mills, 329 Pa.Super. 196, 478 A.2d 30 (1984); Commonwealth v. Lamb, 309 Pa.Super. 415, 455 A.2d 678 (1983). In Lamb, this court said:

The essence of the offense of conspiracy is an agreement between two or more persons to commit an unlawful act. The agreement required for conspiracy can seldom be directly proved, nor need it be. However, a mere association between several alleged co-conspirators or their mere presence at the scene of the crime is not enough to establish that there has been a criminal conspiracy. Among the circumstances which are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred.

Commonwealth v. Lamb, supra, 309 Pa.Superior Ct. at 429, 455 A.2d at 685-86 (citations omitted).

Commonwealth v. Derr, 501 Pa. 446, 462 A.2d 208 (1983) is similar to the instant case. In Derr, an undercover agent gave $1,100.00 to appellant to purchase contraband. The undercover agent remained in the car while appellant entered the premises to purchase the hashish. Shortly after entering the house, appellant returned with the hashish and delivered it to the undercover agent. Thereafter, the appellant and the undercover agent parted.

The Derr court found the Commonwealth failed to prove “an agreement between two or more persons to engage in some unlawful activity.” In Derr the Pennsylvania Supreme Court found that the Commonwealth did not show that the “defendant had any knowledge of the existence or terms of the alleged agreement and participated in no action toward the furtherance of the alleged agreement.” In essence all the Commonwealth showed was a buyer-seller relationship between appellant and his supplier.

In the instant case as in Derr the Commonwealth failed to prove a conspiracy beyond a reasonable doubt. Neither direct nor circumstantial evidence proved that appellant Smith had any knowledge of the existence or terms of an agreement among Wilson, March, and himself as supplier. The conspiracy must be premised upon an agreement between the conspirators to deliver a controlled substance to the customer, in this case informant Siegel. The Commonwealth’s evidence therefore is insufficient.

The Commonwealth’s evidence indicates the following: that March as the direct purchaser accompanied Siegel and Wilson to an art school, that March alone went to Smith’s apartment to purchase cocaine for Siegel, and that March and Wilson knew that Siegel sought to obtain cocaine. However, the evidence does not support the conclusion that Smith, the supplier, made an agreement with March and Wilson to sell cocaine to Siegel. There is no evidence that would indicate that Smith had harbored joint criminal intent to sell cocaine to Siegel. Furthermore, there is no evidence that Smith knew Siegel or had any prior dealings with him. The evidence merely proves a buyer-seller relationship between March and Smith.

The majority attempts to impute knowledge of an agreement by relying on evidence that appellant had a large amount of cash, drug records, and packaging material in his apartment. To conclude from that the appellant conspired with March and Wilson is speculative and does not constitute evidence of a conspiracy beyond a reasonable doubt. The Derr court under similar circumstances instructs that we may not impute an agreement where the evidence only supports the fact that the supplier sold drugs to the customer. The Commonwealth’s evidence falls far short of the reasonable doubt standard necessary to convict.

      . "No psychiatrist or person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52) to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.” 42 Pa.C.S. § 5944, amended December 22, 1989.

      . The Commonwealth’s motion in limine also requested relief on the basis that March’s counsel for his mental health hearing divulged to appellant Smith’s trial counsel March’s psychiatric patient status. (Both attorneys were employed by the York County Public Defender’s office.) The petition alleges that this exchange was in violation of the Pa.Rules of Ethical Conduct and that defendant should be precluded from utilizing this wrongfully volunteered information.

      . Although the fact that post-verdict motions were filed by appellant in this case is indicated by the briefs presently before the Court, the content of those motions is not before the Court in this case. Despite efforts to locate post-verdict briefs, the Court was informed on September 25, 1991 by the Harrisburg Prothonotary’s Office that the post-verdict motions were disposed of orally and that no briefs were filed.

      . 18 Pa.C.S.A. § 903(a).

      . The criminal indictment refers to a conspiracy among Wilson, March and appellant Smith.


source: Caselaw Access Project

author: HOFFMAN, Judge: McEWEN, Judge,

license: Public Domain

text:
    606 A.2d 946
    COMMONWEALTH of Pennsylvania v. Anthony A. RISH, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 24, 1992.
    Filed April 28, 1992.

      Neil O’Donnell, Pittston, for appellant.
    Francis Sempa, Deputy Atty. Gen., Jerome L. Cohen, Dist. Atty., Wilkes-Barre, for Com., appellee.

      Before McEWEN, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for corrupt organization, conspiracy, possession with intent to deliver a controlled substance and delivery of a controlled substance. Appellant, Anthony A. Rish, presents the following issues on appeal:

1. Whether the lower court erred in denying appellant’s motion to withdraw his guilty plea.
2. Whether the sentence imposed by the lower court upon the appellant constitutes an abuse of discretion.

Appellant’s brief at 2. For the following reasons, we vacate the judgment of sentence and remand for proceedings consistent with this opinion.

On September 7, 1990 appellant pled guilty to charges of corrupt organizations, criminal conspiracy, three counts of delivery of a controlled substance and three counts of possession with intent to deliver. Appellant then filed a pro se motion to withdraw his guilty plea. That motion was denied. Appellant was then sentenced to an aggregate term of imprisonment of sixty-to-one-hundred-and-forty-four-months, and ordered to pay $16,000 in fines and $4,400 in restitution. After sentencing, defense counsel did not renew the motion to withdraw the guilty plea. A timely motion to modify sentence was filed and denied and this timely appeal followed.

Appellant’s first contention is that the trial court erred by not granting his pre-sentence motion to withdraw his guilty plea.

Rule 320 of the Pennsylvania Rules of Criminal Procedure governs the withdrawal of guilty pleas and provides as follows:

At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.

Rule 320 Pa.R.Crim.P. A trial court’s decision as to whether to allow a guilty plea to be withdrawn will not be disturbed absent an abuse of discretion. Commonwealth v. Boatwright, 404 Pa.Super. 75, 82-83, 590 A.2d 15, 19 (1991); Commonwealth v. Jones, 389 Pa.Super. 159, 162, 566 A.2d 893, 894 (1989), alloc. denied, 525 Pa. 632, 578 A.2d 926 (1990).

The present standard for determining whether a defendant before his sentence can withdraw a guilty plea was first articulated in 1973 in the seminal case Commonwealth v. Forbes, [450 Pa. 185, 299 A.2d 268 (1973)]. A request to withdraw a guilty plea has to meet both prongs of the following two-part test. First, a withdrawal cannot be granted if to do so would substantially prejudice the prosecution. Commonwealth v. Anthony, 504 Pa. 551, 561, 475 A.2d 1303, 1308-1309 (1984); Forbes, supra, 450 Pa. at 191, 299 A.2d at 271. Second, a withdrawal request made prior to sentencing should be granted for any “fair and just” reason. Anthony, supra, 504 Pa. at 561, 475 A.2d at 1308-1309; Forbes, supra, 450 Pa. at 192, 299 A.2d at 271.... We have found that where no prejudice exists to the Commonwealth, a defendant does not have to articulate a very substantial “fair and just” reason for us to find that a trial court erred in failing to grant a defendant’s request to withdraw his plea before sentencing. Commonwealth v. Reider, 255 Pa.Super. 163, 165-166, 386 A.2d 559, 560 (1978).

Commonwealth v. Turiano, 411 Pa.Super. 391, 601 A.2d 846, 849-850 (1992). Under the standard set out by the court in Commonwealth v. Forbes, 450 Pa. 185, 191-192, 299 A.2d 268, 272 (1973) the mere assertion of innocence constitutes a “fair and just” reason to allow withdrawal of a guilty plea prior to sentencing.

In the instant case the Commonwealth does not assert that any prejudice would result from allowing a withdrawal of appellant’s guilty plea. Appellant has not been privy to any trial testimony, has achieved no strategic leverage and has gained no insight into the prosecution of this case. The Commonwealth is in the same position now as it was when appellant pled guilty in September of 1990.

In addition, appellant sets forth a “fair and just” reason for wanting to withdraw his guilty plea. In appellant’s motion to withdraw his guilty plea he states:

I am not guilty of the offense charged and I do hereby state that said plea was entered at a time at which I was under extreme personal pressures that affected my rational thinking and as such the plea of guilty was not tendered of my rational and voluntary action____ For that reason I state[:] The guilty plea is not truthful and not of my own free will and I wish to withdraw said plea and plead NOT GUILTY.

Appellant’s Motion To Withdraw Guilty Plea. Under the Forbes standard appellant’s request to withdraw his guilty plea prior to sentencing should have been granted and the trial court erred by refusing to grant it. In addition, when the trial judge received appellant’s motion to withdraw his guilty plea he summarily rejected it without any inquiry into appellant’s reasons for withdrawal. When a defendant petitions the court to withdraw a guilty plea, the court, at a minimum, should inquire into the reasons for the withdrawal. See Commonwealth v. Hines, 496 Pa. 555, 567, 437 A.2d 1180, 1186 (1981) (the court should inquire as to the reasons for withdrawal). Consequently, we must reverse and vacate the judgment of sentence of the trial court, direct that the guilty plea be withdrawn and remand for further proceedings.

Because of our disposition of appellant’s first claim we need not address appellant’s remaining claims.

Judgment of sentence reversed, remanded with directive that the guilty plea be withdrawn. Jurisdiction is relinquished.

McEWEN, J. files a concurring statement.

McEWEN, Judge,

concurring:

The esteemed author of the majority view quite aptly expresses the principles which presently prevail and require this Court to conclude that appellant must be permitted to withdraw his guilty plea. I write but to echo my conviction that a bald assertion of innocence should not by itself constitute fair and just reason for allowing appellant to withdraw a guilty plea prior to sentencing but, instead, that:

a pre-sentence assertion of innocence may compose the required “fair and just reason” provided that the totality of circumstances reflected by the record does not establish otherwise.

Commonwealth v. Cole, 387 Pa.Super. 328, 338-39, 564 A.2d 203, 208 (1989) (Concurring Opinion by McEwen, J.). Such a standard would more wisely serve reason, not to mention the citizenry, without intruding upon the fundamental rights of those defendants who present a valid basis for withdrawal.

      . 18 Pa.C.S.A. § 911(b)(3).

      . 18 Pa.C.S.A. § 903.

      . 35 Pa.S.A. § 780-113(a)(30).

      . 35 Pa.S.A. § 780-113(a)(30).

      . A denial of a pre-sentence motion to withdraw a guilty plea is not appealable unless it has first been challenged post-sentence pursuant to Pa.R.Crim.P. § 321. Appellant failed to file a post-sentence motion challenging his guilty plea; however, it does not appear that the sentencing court advised him of his right to do so. Consequently, this claim is not waived. See Pa.R.Crim.P. § 1405(c)(2); Commonwealth v. Cavanaugh, 500 Pa. 313, 315, 456 A.2d 145, 147 (1983) (a defendant's failure to file a Rule 321(a) motion waives claims which should have been raised in the motion, provided that the court informed the defendant of his right to file post-verdict motions or a motion to withdraw the plea).

      . We note that we are in agreement with many of our colleagues who have expressed dissatisfaction with the standard set out in Forbes. The developments in the guilty plea colloquy have successfully fulfilled the policy concerns underlying Forbes. The court in Forbes asserted that the liberal rule for withdrawal of a guilty plea before sentencing is consistent with the efficient administration of justice because it reduces the number of appeals contesting whether the plea was knowing and voluntary. Commonwealth v. Forbes, 450 Pa. 185, 191, 299 A.2d 268, 271 (1973). However, An extensive colloquy is more effective in conserving judicial resources than the Forbes standard. We agree with Commonwealth v. Turiano, 411 Pa.Super. 391, 601 A.2d 846, 852 (1992) that a guilty plea colloquy ensures that a criminal defendant understands the significance of the constitutional rights he is waiving. See also Commonwealth v. Jones, 389 Pa.Super. 159, 164, 566 A.2d 893, 895 (1989), alloc. denied, 525 Pa. 632, 578 A.2d 926 (1990) (emphasizes importance of colloquy); Commonwealth v. Ortiz, 334 Pa.Super. 117, 121-123, 482 A.2d 1110, 1111-1113 (1984) (Dissenting Opinion by McEWEN, J.) (noting that guilty plea colloquy displayed voluntariness of plea). However, as Forbes is still the law of this Commonwealth, we are constrained to follow it.


author: WIEAND, Judge:

text:
    606 A.2d 948
    Estate of Martha KAMINSKI. Appeal of ESTATE OF Martha KAMINSKI, By the Administratrix, Diane KAMINSKI.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1992.
    Filed May 1, 1992.

      Gregory S. Fox, Ellwood City, for appellant.
    Andrea Murphy, pro se.
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   WIEAND, Judge:

After a court has denied the claim of an administratrix c.t.a. for certain alleged expenses, may the administratrix circumvent the court’s ruling by taking a release from an heir for an amount less than the heir was entitled to receive from the decedent’s estate? The orphans’ court held that the release did not bar the heir’s recovery of the full amount due her and ordered the administratrix to make distribution of remaining assets to the heir. We affirm.

Martha Kaminski died testate on December 20, 1975. By her last will and testament, she devised certain real estate to her son, Peter J. Kaminski, and left the rest and residue of her estate to her sons, Peter and Frank Kaminski, in equal shares. Peter Kaminski, who was also named as executor, predeceased his mother, leaving as his only heir a daughter, Andrea Murphy. Letters of administration c.t.a. were issued to Diane Kaminski, the daughter of Anthony Kaminski, another son of the decedent. Frank Kaminski died testate on July 29, 1985.

In 1987, an auditor was appointed, and he determined that Anthony Kaminski had a 60% interest and Andrea Murphy had a 40% interest in a certain residence situated in Zelienopie, Butler County. The court confirmed this report by order entered on September 5, 1989.

When distribution was not made, Murphy petitioned for and obtained a rule to show cause why distribution should not be made in accordance with the auditor’s report. The administratrix responded by asserting that she and her father had expended moneys to improve the residential property and that these sums were, at least in part, deductible from the share of Andrea Murphy. This claim was rejected by the court which found specifically that the work done by the administratrix and her father had been for their own benefit and not for the benefit of the estate. The rule directing payment was made absolute on June 5, 1990. No appeal was taken from the court's order.

The amount payable to Murphy pursuant to the auditor’s report was approximately $5,900. On or about August 10, 1990, the administratrix forwarded a check in the amount of $5,148.93, together with a receipt and release in the same amount. An accompanying letter explained that the amount to which Murphy was entitled pursuant to the auditor’s report had been reduced by certain expenses which the administratrix was claiming. Murphy, nevertheless, signed the release and accepted the sum of $5,148.93.

On September 11, 1990, however, she obtained a rule to show cause why a balance due in the amount of $762.51 should not be paid to her. In response, the administratrix pleaded the release which Murphy had signed. By order dated February 20, 1991, the court directed the administratrix to pay to Andrea Murphy the additional sum of $762.51. The court found specifically that the deductions claimed by the administratrix had been disallowed by its order of June 5, 1990. The administratrix appealed. She contends that the Murphy claim for additional funds is barred by the release which discharged the estate from further payments.

As a general rule, a release is binding upon the parties unless it was obtained by fraud, duress or mutual mistake. Iman v. Hausman, 354 Pa.Super. 458, 512 A.2d 41 (1986). Where the release pertains to a beneficiary’s interest in an estate, however, a receipt is not conclusive of the beneficiary’s interest. In Horton’s Appeal, 38 Pa. 294 (1861), an auditor had allowed a widow an interest greater than that for which she had executed an earlier release. The Supreme Court affirmed the interest determined by the auditor to be due the beneficiary. It held that whether the widow was entitled to an amount greater than that recited in the release “was a question of fact inquired into and decided by a very competent auditor, and as the court below saw no reason for reversing his finding, so we see none. A receipt is always open to explanation.” Id. at 296.

In the instant case, the trial court had previously disallowed the amounts which the administratrix sought to deduct from the beneficiary’s interest. The administratrix sought to circumvent the trial court’s disallowance of her deductions by refusing to pay the full amount which the beneficiary was entitled to receive and by submitting a release for the smaller amount. If we were to hold that this release barred the beneficiary from receiving the full amount due her, we would be aiding this unconscionable attempt by the administratrix to override the trial court’s order. This we will not do.

In Wilson’s Estate, 59 Pa.Super. 358 (1915), the heirs had executed a release for an amount less than they were entitled to receive from the decedent’s estate. The orphans’ court directed the executor to pay the balance notwithstanding the release. The executor appealed. The Superior Court affirmed, reasoning as follows:

There is no question that a release given from one to another, in the absence of fraud, accident or mistake, is ordinarily binding upon the parties. In this case, however, the parties sustained peculiar relations. The [executor] had in hand funds belonging to the legatees. He was merely a custodian of the assets belonging to them. He was not personally interested in the matter except to see that the assets were properly distributed in accordance to the directions of the will. The orphans’ court had, by its confirmation of the last account, adjudged the heirs entitled to the specific sums set forth therein. Any sum less than the amounts awarded to them could not become the property of the [executor] upon any principle of equity. His position is such that it entirely precludes his making a profit out of the estate, other than the compensation allowed by law. To allow an executor to go to the various heirs or distributees and, taking advantage of his position, pay them less than their shares and thus use the estate to his own benefit would be departing from all the standards set up for persons occupying fiduciary positions. The account, as confirmed, shows a complete distribution. Each legatee, including the residuary legatee, is awarded a specific sum. Who is to benefit by the reduction of the several amounts? ... The simple fact remains that the executor has money in hand that neither belongs to him nor to the residuary legatee, but is due to the [heirs]. The [heirs] were in necessitous circumstances, had become discouraged by reason of the long delay, and were willing to take anything they could get,....

Id. at 360-361.

So in the instant case, Andrea Murphy had executed the release at a time of financial distress, having lost her job. As in Wilson, there are neither legal nor equitable reasons for allowing the administratrix to benefit from her own wrongful detention of the funds which were due and payable to the beneficiary of the estate. Therefore, we affirm the order directing the administratrix to distribute the additional sum of $762.61 to Andrea Murphy.

AFFIRMED.

      . The notes of testimony of the hearing on which this order was based have not been made available for review.


author: MONTEMURO, Judge: DEL SOLE, Judge, CIRILLO, Judge,

text:
    606 A.2d 1175
    Robin Fern LOVE, Administratrix of the Estate of Marlene Love, Deceased, and Robin Fern Love in her Own Right; and Leon Love, Appellants, v. Bernard CRAMER, M.D., Arnold Cramer, M.D., Bernard Cramer, M.D., Associates, P.C., Jerry H. Herman, M.D., Nathan Schnall, M.D., S-H-S-K-G Professional Association.
    Superior Court of Pennsylvania.
    Argued Dec. 10, 1991.
    Filed March 10, 1992.
    Reargument Denied May 20, 1992.

      Robin T. Locke, Philadelphia, for appellants.
    J. Michael Boyle, Philadelphia, for Bernard & Arnold Cramer, appellees.
    Before CIRILLO, DEL SOLE and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an order granting appellees’ Preliminary Objections to appellant’s complaint. The sole issue on appeal is whether the trial court erred in dismissing appellant’s cause of action for negligent infliction of emotional distress on Preliminary Objections. For the reasons set forth below, we reverse.

During the summer of 1988, appellant’s mother, Marlene Love, began experiencing problems with her health, among them retention of abnormal body fluid, causing her ankles and abdomen to swell, and difficulty in breathing. Appellant researched her mother’s medical problems and became concerned that the symptoms might be related to a coronary condition, i.e., congestive heart failure. Consequently, appellant took her mother to see appellee, Dr. Bernard Cramer, who had treated Marlene for many years, and, therefore, was aware that she had a history of high blood pressure, angina and diabetes. During the office visit, appellant related to Dr. Cramer her concerns that her mother was having heart problems, and asked whether testing or hospitalization were appropriate. Dr. Cramer advised appellant and her mother that further tests and treatment were not necessary.

For the next six weeks appellant and her mother sought alternative explanations for Marlene’s medical problems, consulting a gynecologist about the fluid build up, and seeing Dr. Cramer on several occasions. At no time, however, did Dr. Cramer investigate further the possibility of a heart condition.

On October 9, 1988, Marlene Love died of heart failure. At that time, appellant had been resting by her mother’s side, and was forced to witness her mother’s death. As a result, appellant became severely depressed, suffered nightmares, stress and intense anxiety, and was forced to undergo prolonged psychological treatment.

As administratrix of her mother’s estate, appellant filed a wrongful death and survival action. In the complaint, appellant asserted a claim for damages on her own behalf against Dr. Cramer for the emotional harm she claims to have suffered as a result of witnessing appellee’s alleged negligent, and her mother’s resulting death. Appellee filed preliminary objections to the complaint, and on December 30, 1990, the trial court granted the motion seeking to dismiss appellant’s claim for negligent infliction of emotional distress. This appeal followed.

Initially, we note that our scope of review in an appeal from an order granting preliminary objections in the nature of a demurrer is plenary. Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985). Any doubt as to whether a demurrer should be sustained is to be resolved against the moving party. Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 500 A.2d 470 (1985). Furthermore, “we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom.” Id., 347 Pa.Superior Ct. at 192, 500 A.2d at 472. Preliminary objections should be sustained only when it appears with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.

In Pennsylvania, a cause of action for negligent infliction of emotional distress depends upon three factors:

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it;
(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and
(3) Whether plaintiff and the victim were closely related as contrasted with an absence of any relationship or the presence of only a distant relationship.

Sinn v. Burd, 486 Pa. 146, 171, 404 A.2d 672, 685 (1979). Recovery is further limited by the requirement that the person seeking the damages must suffer physical injury as a result of actually witnessing the harm to the close relative. Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 516 A.2d 672 (1986). In the instant case, the trial court concluded that appellant’s claim was not within the parameters set forth above, and accordingly dismissed the cause of action. We disagree.

The basis of recovery for a claim of negligent infliction of emotional distress is the traumatic impact of viewing the negligent injury of a close relative. Hoffner v. Hodge, 47 Pa.Comm. 277, 407 A.2d 940 (1979). A person who does not experience a sensory and contemporaneous observance of the injury does not state a cause of action for negligent infliction of emotional distress. Mazzagatti, supra. In formulating the rule, the Supreme Court “contemplated a discrete and identifiable traumatic event to trigger recovery.” Beradi v. Johns-Manville Corp., 334 Pa.Super. 36, 44, 482 A.2d 1067, 1071 (1984). In the absence of such an event, no recovery is permitted.

In the instant case it is apparent that appellant witnessed a discrete and identifiable traumatic event. Unlike the Mazzagatti situation , appellant did not arrive on the scene after her mother was injured, but rather experienced a sensory and contemporaneous observance of her mother’s fatal heart attack. The fact that the negligence of Dr. Cramer did not take place at the time of the actual injury should not prevent appellant from attempting to prove her claim. It is enough if the negligence constituted the proximate cause of the injury, and of the resulting emotional trauma.

Recently in Bloom v. Dubois Regional Medical Center, 409 Pa.Super. 83, 597 A.2d 671 (1991), we were confronted with a similar situation wherein a physician was sued for negligent infliction of emotional distress for allegedly failing to treat his patient. In that case we denied recovery, holding that the plaintiff husband did not observe any traumatic infliction of injury by the defendants, as he observed his wife after her own suicide attempt.

He did not, however, observe any traumatic infliction of injury on his wife at the hands of the defendants because none occurred. The alleged negligence of the defendants here is an omission and involved no direct and traumatic infliction of injury on Mrs. Bloom by defendants.

Bloom, 409 Pa.Superior Ct. at 105, 597 A.2d at 683. Although we denied recovery in that case because the plaintiff failed to observe the alleged negligent omission of the defendant, we stated that

We hasten to add, however, that we do not intend to fashion a rule that excludes recovery to all plaintiffs who allege negligent infliction based on their observance of a negligent omission by defendants. There are certainly circumstances where an omission might be construed as a traumatic infliction of injury on the plaintiffs relative and, if the plaintiff observed that occurrence, recovery could be had. Take, for example, the situation where a husband plaintiff seeks to admit his wife to an emergency room for medical care. Because of inaction by the emergency room personnel, the wife is left to languish in the outer office and expires there. Husband has viewed the entire event. The omission by the emergency room personnel in this scenario might create a sufficiently traumatic situation to be the basis for recovery for negligent infliction.

Bloom, 409 Pa.Superior Ct. at 106, 597 A.2d at 683.

The instant case is much like the emergency room scenario described above. Although the negligence and the injury are not as closely related in time in this case, the situation is similar because of the observance of the negligent failure to treat a loved one. Here appellant took her mother to appellee because of her concerns regarding her mother’s health, and was actually present when appellee failed to perform specific heart related tests on her mother. She witnessed the negligent medical care and her mother’s subsequent death. It is possible that appellant will be able to prove that Dr. Cramer was negligent, and that his negligence was the proximate cause of her mother’s death. Appellant’s observance of the lack of medical care, along with her observance of her mother’s heart attack is enough to sustain her claim for negligent infliction of emotional stress. Although appellant may be unable to ultimately prove a causal connection between her injuries and the doctor’s alleged negligence, she should at least be given the opportunity to do so. This is not the simple situation wherein the plaintiff did not observe the traumatic event, but nevertheless sought to recover for emotional distress. Rather appellant witnessed the traumatic event, and the earlier negligence of the doctor. Her recovery, if proven, would be based upon the fact that her emotional injury was due to her first hand observation of her mother’s heart attack, an event caused by Dr. Cramer’s negligence, which she had also witnessed. As such, it cannot be said with certainty that appellant will be unable to recover under the law. She should be given the opportunity to prove that Dr. Cramer was negligent, and that his negligence was a proximate cause of her emotional distress. Therefore, the preliminary objection should not have been granted.

Appellee also asserts that appellants claim is barred because she does not allege sufficient physical harm to sustain an action for negligent infliction of emotional distress. The rule regarding negligent infliction of emotional distress is set forth in Section 436A of the Restatement (second) of Torts.

If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.

Comment to this section explains:

Under the rule stated in this section, the negligent actor is not liable when his conduct results in the emotional disturbance alone, without the bodily harm or other compensable damage.

A review of Pennsylvania case law also makes plain that a plaintiff must allege physical harm to sustain an action for negligent infliction of emotional distress. See Sinn v. Burd, supra, Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981), and Houston v. Texaco, Inc., 371 Pa.Super. 399, 538 A.2d 502 (1988). The amount of harm that must be alleged, however, is not as clear. In her complaint, paragraph 50, appellant alleged the following:

50. Plaintiff Robin Fern Love’s witnessing of the defendants’ negligence and the events leading to the death of the decedent, Marlene Love, including being grabbed by the decedent Marlene Love in the throes of death has caused plaintiff Robin Fern Love extreme mental and emotional anguish and distress, causing plaintiff Robin Fern Love symptoms of severe depression, nightmares, stress and anxiety, requiring psychological treatment, and continues to cause her ongoing mental, physical and emotional harm.

Unlike the cases where we have found the pleadings to be insufficient to sustain a claim for emotional distress, appellant in the instant case has alleged physical manifestations of emotional suffering, i.e. depression, nightmares, stress, and anxiety. Furthermore, appellant has alleged that her injuries were of a continuing nature and have required her to obtain psychological treatment. Accordingly, we find that the alleged injuries are of a greater magnitude than the “transitory, nonrecurring physical phenomena” contemplated by the Restatement (Second) of Torts § 436A, and, therefore, sufficient to sustain a cause of action for negligent infliction of emotional distress.

Order reversed.

Case remanded.

Jurisdiction relinquished.

DEL SOLE, J. files a concurring statement.

CIRILLO, J. files a dissenting opinion.

DEL SOLE, Judge,

concurring:

I concur in the decision set forth in the Opinion by my distinguished colleague, Judge Frank J. Montemuro, Jr.

I would not limit potential recovery to only those cases where the party has witnessed the alleged negligent act as set forth in my Concurring & Dissenting Opinion in Bloom v. Dubois Regional Medical Center, supra.

CIRILLO, Judge,

dissenting:

I respectfully dissent. It is my opinion that the trial court properly dismissed the appellants’ claim for negligent infliction of emotional distress and to do otherwise would be in direct opposition with the law of this Commonwealth.

In her complaint appellant Robin Love (“Love”) alleges that she accompanied her mother (“decedent”) to her appointment with appellee Dr. Cramer on August 23,1988 and that she was present when Dr. Cramer advised decedent that further tests and hospitalization were unnecessary. Love also alleges that she was present with her mother when she died one and one-half months later. Love’s claim for negligent infliction of emotional distress stems from her presence at a discussion between Dr. Cramer and decedent and her presence at decedent’s death.

Love’s claim for negligent infliction of emotional distress is without merit as it does not fall within the parameters established by the precedent of this Commonwealth. In Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), the supreme court addressed the issue of when a claimant should be permitted to recover damages for negligently caused mental distress. In this seminal case the supreme court adopted a three factor test to determine whether the injury to the plaintiff was reasonably foreseeable:

(1) Whether the plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it;
(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and
(3) Whether plaintiff and the victim were closely related as contrasted with an absence of any relationship or the presence of only a distant relationship. .

Sinn v. Burd, 486 Pa. 146, 171, 404 A.2d 672, 685 (1979).

Thé Sinn court held that the plaintiff/father, who was not located at the scene of his child’s accident and whose emotional distress was not a result of contemporaneous observance of the accident, could not recover for negligent infliction of emotional distress.

In Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986), the court was once again faced with a case where a parent did not witness the accident itself, but arrived shortly afterwards and, subsequently, sought damages under the theory of negligent infliction of emotional distress. In Mazzagatti, after reviewing the foreseeability test enacted in Sinn, the supreme court stated that it had confined its holding “solely to those cases in which plaintiff alleges psychic injury as a result of actually witnessing the defendant’s negligent act.” Id., 512 Pa. at 276, 516 A.2d at 677, quoting Sinn, 486 Pa. at 166-167 n. 15, 404 A.2d at 683 n. 15 (emphasis added).

This court has addressed the elements which a plaintiff must demonstrate in order to substantiate a claim for negligent infliction of emotional distress. We have also confirmed that in order to successfully allege a claim for emotional distress a plaintiff must witness the accident in issue. See Halliday v. Beltz, 356 Pa.Super. 375, 514 A.2d 906 (1986) (decedent’s husband and daughter who brought medical malpractice claim alleging negligent infliction of emotional distress did not meet the personal observation requirements of Sinn where they never actually viewed any surgery, though they were present in the hospital while procedures were performed). See also Tackett v. Encke, 353 Pa.Super. 349, 509 A.2d 1310 (1986) (mother who claimed that she was injured emotionally as a result of witnessing, over time, her son’s reaction to a negligently undetected pulmonary fat embolism did not witness the negligent treatment, and thus, mother could not recover for negligent infliction of emotional distress.)

Appellants’ claim is evidently defective in that it does not meet the requirements of the foreseeability test. Love can reasonably allege that she suffered emotional distress as the result of observing her mother’s death, but these events occurred approximately seven weeks after the alleged negligence of Dr. Cramer. Thus, Love’s alleged emotional distress is not the result of the “sensory and contemporaneous observance of the accident [incident].” Therefore, without fulfilling the requisite test, appellants fall short of stating a claim for which relief may be granted.

      . In Mazzagatti, supra, a parent who did not actually witness the car accident which injured her child, but arrived at the scene a few minutes later, was denied recovery for negligent infliction of emotional distress. The Supreme Court held that recovery would only be allowed in cases where the plaintiff alleges injury as a result of actually witnessing the injury to the loved one.

      . See e.g., Kearney v. Philips Industries, Inc., 708 F.Supp. 479 (DC Conn.1987), where in a products liability action involving an exploding propane tank, plaintiff was entitled to recover for emotional distress brought on by the observance of the death of his children, despite defendant’s contention that the negligent acts did not take place at the time of the accident, since it was sufficient if the negligence constituted the proximate cause of the accident and of the resulting injuries and deaths. See also, Pearsall v. Emhart, 599 F.Supp. 207 (E.D.Pa.1984) wherein the court ruled that a mother could recover damages against the manufacturer of defective alarm systems for the emotional distress she suffered upon arriving home and seeing her house on fire and seeing the smoldering bodies of her husband and daughter. Again although the negligence did not take place at the time of the injury, since it was the proximate cause of the injury, recovery was allowed.

      . In Bloom, Mr. Bloom found his wife hanging by the neck from shoestrings behind a door adjacent to her hospital room one day after her voluntary admission to the psychiatric unit of the hospital. Mr. Bloom sued his wife's doctor and the hospital for negligent infliction of emotional distress on the basis that the doctor and the hospital failed to adequately test, diagnose and supervise his wife.

      . Although it seems odd that the plaintiff must actually witness the negligent act itself and not just the resulting traumatic injury to the loved one, the law as it now stands dictates such a requirement.

      . See Abadie v. Riddle Memorial Hospital, 404 Pa.Super. 8, 589 A.2d 1143 (1991) (where appellant only averred emotional and psychological damage, with no averments of physical harm, the trial court was correct in sustaining appellee’s demurrer), Lazor v. Milne, 346 Pa.Super. 177, 499 A.2d 369 (1985) (where there were no allegations of physical harm, the complaint was properly dismissed), and Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981) (appellant’s complaint averred no physical harm and therefore did not state an action for negligent infliction of emotional distress).