author: HESTER, Judge:

text:
    467 A.2d 631
    COMMONWEALTH of Pennsylvania v. Ricky Lynn McCALL, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1983.
    Filed Oct. 21, 1983.

      Robert Alan Cinpinski, Public Defender, Kittanning, for appellant.
    George R. Kepple, District Attorney, Kittanning, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   HESTER, Judge:

On March 6, 1981, before the Court of Common Pleas of Armstrong County, appellant, Ricky Lynn McCall, entered a plea of guilty to charges of rape, robbery and buriglary filed at No. 1981-0019. These charges were filed as a result of appellant’s forcible entry in early January, 1981, into the residence of Elsie Shearer, situate at Parker, Armstrong County, Pennsylvania, his sexual assault of Connie Suttle, a 26-year old retarded female, within the Shearer residence, and his removal therefrom of a piggy bank containing $40.00.

On March 11, 1981, before the same court, appellant further pled guilty to charges of escape and simple assault stemming from his escape with three other prisoners on January 17, 1981, from the Armstrong County Jail, where he was detained pending prosecution of the rape, robbery and burglary charges. Also, on March 11, 1981, he entered a plea of guilty to charges of burglary, robbery and theft which were instituted as the result of his unauthorized taking of a 1980 Chevrolet Citation, a .22 caliber rifle, ammunition and $31.00 in cash from the residence of Chester Choncek, following his escape from jail earlier that day. These charges, to which appellant pled guilty on March 11, 1981, were filed at Nos. 1981-0050, 1981-0051, 1981-0052, 1981-0053 and 1981-0054.

Two months following the entry of his guilty pleas, and prior to sentencing, appellant filed a Motion and Amended Motion to Withdraw his pleas of guilty to rape, robbery and burglary filed at No. 1981-0019, and to escape, simple assault, robbery, burglary and theft filed at Nos. 1981-0050 through 1981-0054. At the hearing on these motions, appellant orally withdrew his Amended Motion to Withdraw his plea to the charges filed at Nos. 1981-0050 through 1981-0054; consequently, the lower court was concerned only with his Motion to Withdraw his plea to rape, robbery and burglary filed at No. 1981-0019. Following the hearing and both oral and written argument, his remaining Motion was denied and sentencing was scheduled.

On September 10, 1981, appellant was sentenced for the offenses of rape, robbery and burglary (No. 1981-0019) to a term of imprisonment of not less than five nor more than twenty years, said term to run concurrently with any preexisting sentence or sentences. He was also sentenced on that date for the crimes of burglary, robbery, theft, escape and simple assault (Nos. 1981-0050 through 1981-0054) to an identical term of not less than five nor more than twenty years. Both five to twenty-year terms were to run consecutively.

Immediately following sentencing, appellant filed a Motion Challenging his Guilty Plea to rape, robbery and burglary at No. 1981-0019, and a Motion to Modify Sentence at Nos. 1981-0019 and 1981-0050 through 1981-0054. Prior to the trial court’s disposition of these Motions, appellant filed a Notice of Appeal from the Order, dated September 1, 1981, denying his Motion and Amended Motion to Withdraw for fear that the thirty-day appeal period would not be tolled by the later Motions challenging the guilty pleas and to modify sentence.

By Order of Court, dated February 10, 1982, appellant’s Motions Challenging the Guilty Plea and to Modify Sentence were denied. A timely appeal was filed from this Order also. Due to the fact that both appeals were taken from Orders denying withdrawal of the same guilty plea and denying modification of sentence, appellant was instructed to file this Amended Notice of Appeal in order to consolidate the earlier Notices of Appeal.

Appellant argues first that the trial court erred in refusing to approve the withdrawal of his plea of guilty to rape, robbery and burglary at No. 1981-0019. According to appellant, his insistence on his innocence, his desire to exercise his right to a jury trial, the infliction of no prejudice on the Commonwealth as a result of the withdrawal of his guilty plea and the fact that he sought to withdraw his plea prior to sentencing, are justifiable reasons for reversal.

The Pennsylvania Supreme Court in Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973) stated:

It is well recognized that a pre-sentencing plea withdrawal motion and a post-sentencing plea withdrawal motion present entirely different problems. As a general rule, the guilty plea itself is ‘the defendant’s consent that the judgment of conviction may be entered without a trial.’ Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463 [1469], 25 L.Ed.2d 747 (1970). Nothing remains to be done following acceptance of a valid plea save to impose sentence. Consequently, a motion to withdraw a guilty plea made before sentencing normally precedes any indication by the court of what penalty will be exacted. There is therefore little risk that the defendant will enter a guilty plea and then withdraw it before sentencing as a means of testing the court’s attitude towards sentencing. Similarly, there is less risk that the prosecution will be substantially prejudiced by the withdrawal, before sentencing, of a constitutionally valid guilty plea.
It is otherwise with a post-sentencing petition to withdraw a guilty plea. Such a procedure obviously would be useful as a sentence testing device, and, if permitted with any degree of liberality, would invite abuse.
Id., 450 Pa. at 488-489, 301 A.2d at 594.

According to Rule 320 of the Pa.R.Crim.P., “[a]t 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.” Although trial courts are empowered to preclude the withdrawal of a guilty plea prior to sentencing, they generally defer to the defendant’s wishes to retract his waiver and exercise his constitutional right to a jury trial. Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976); Commonwealth v. Neely, 449 Pa. 3, 295 A.2d 75 (1972), cert. den. 411 U.S. 954, 93 S.Ct. 1934, 36 L.Ed.2d 416 (1973).

As the Pennsylvania Supreme Court also stated in Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973):

Thus, in determining whether to grant a pre-sentence motion for withdrawal of a guilty plea, ‘the test to be applied by the trial courts is fairness and justice.’ United States v. Stayton, [408 F.2d 559 (3d Cir.1969) ] ... at 561. If the trial court finds ‘any fair and just reason,’ withdrawal of the plea before sentence should be freely permitted, unless the prosecution has been ‘substantially prejudiced.’ ABA Standards Relating to Pleas of Guilty [ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 2.1 (Approved Draft 1968) ] ... Commonwealth v. Forbes, supra, 450 Pa. at 191, 299 A.2d at 271.

The Commonwealth here virtually concedes an absence of substantial prejudice in the event appellant’s motion to withdraw his plea is granted, but strenuously argues that appellant advances no fair and just reason for said withdrawal.

The plea was entered one and one-half months following the filing of charges and well in advance of trial. In his motion to withdraw his plea, and again here on appeal, appellant maintains his innocence. Where no “substantial prejudice” is inflicted upon the Commonwealth as a result of a guilty plea withdrawal, the mere assertion of innocence is a “fair and just reason” for permitting the withdrawal of a guilty plea prior to sentencing. Commonwealth v. Boofer, 248 Pa.Super. 431, 375 A.2d 173 (1977); Commonwealth v. Woods, 452 Pa. 546, 307 A.2d 880 (1973).

We are, therefore, constrained to reverse and remand for trial on the original charges of rape, robbery, burglary, indecent assault, terroristic threats and theft by unlawful taking or disposition filed at No. 1981-0019. As a result of this reversal, it is not necessary to address appellant’s appeal from that portion of the Order, dated February 10, 1982, denying his Motion to Modify Sentence imposed at No. 1981-0019.

Next, we address appellant’s contention that the lower court erred in failing in its Order, dated February 10, 1982, to modify the sentence imposed on the offenses to which he pled guilty at Nos. 1981-0050 through 1981-0054. According to appellant, the sentencing proceeding was tainted due to the court’s sole reliance on his previous criminal record. The court allegedly failed to acknowledge a psychological evaluation, appellant’s tender age, average intelligence and life-long deprivation, and the fact that the multiple offenses occurred in less than one-month’s time.

Unless a mandatory sentence is provided in the Sentencing Code, the sentencing court must choose one or more of the following forms of sentencing: 1) probation; 2) determination of guilt without further penalty; 3) partial confinement; 4) total confinement; 5) fine. 42 Pa.C.S.A. § 9721(a). The appropriate form of sentencing must be “consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b).

The Sentencing Code further enumerates the following grounds which warrant the entry of an order of probation:

(1) The criminal conduct of the defendant neither caused nor threatened serious harm.
(2) The defendant did not contemplate that his conduct would cause or threaten serious harm.
(3) The defendant acted under a strong provocation.
(4) There were substantial grounds tending to excuse or justify the criminal conduct of the defendant, though failing to establish a defense.
(5) The victim of the criminal conduct of the defendant induced or facilitated its commission.
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present time.
(8) The criminal conduct of the defendant was the result of circumstances unlikely to recur.
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.
(10) The defendant is particularly likely to respond affirmatively to probationary treatment.
(11) The confinement of the defendant would entail excessive hardship to him or his dependents.
(12) Such other grounds as indicate the desirability of probation.
42 Pa.C.S.A. § 9722.

Total confinement is properly imposed where:

(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.
42 Pa.C.S.A. § 9725.

Upon imposition of sentence, the court must articulate its reasons, in light of the heretofore discussed guidelines, for selecting the particular sentence. 42 Pa.C.S.A. § 9721(b). Failure to issue a statement of reasons and make it part of the record are sufficient grounds for vacating the sentence and remanding for resentencing.

The preferred mode of establishing for the record a basis for imposing the selected sentence is to specifically refer to the statutory guidelines; however, if upon close review of the record it becomes evident that the court considered and applied the guidelines without specific reference to them, sentence will be upheld. Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982); Commonwealth v. Wareham, 259 Pa.Super. 527, 393 A.2d 951 (1978). It must be recognized that absent a gross abuse of discretion, a sentencing court will not be reversed on appeal; imposition of sentence is a matter more suitable for trial judges in light of their extensive exposure to the nature of the crime, the defendant’s character (whether he displays remorse, defiance or indifference), and both prosecution and defense witnesses. Commonwealth v. Youngkin, 285 Pa.Super. 417, 427 A.2d 1356 (1981); Commonwealth v. Wareham, supra.

Following a review of the convictions, the court recognized appellant’s relatively tender age of twenty-one years, his woefully deprived childhood and his living in foster homes since the age of eleven or twelve. The court also recognized two prior and separate convictions of robbery and noted that every one of appellant’s convictions involved crimes of violence.

Finally, the court observed that appellant was “a clear and present danger to everybody who comes in contact with [him] ...,” N.T. September 10, 1981, p. 13; that “the recommended sentences that are to be imposed in connection with this plea bargain, if anything, are too light because [he has] demonstrated here that, given the opportunity, [he has] committed violent offenses and [he] will continue to do so,” Id.; and, that “when [he is] at liberty, the public is at hazard, in danger.” Id. at 14.

The record shows the court’s notation of appellant’s conviction of several violent crimes within four years and the danger he presents to the public. We think it clear that the court articulated its belief that a lesser sentence would not reflect the seriousness of the offenses and that probation would not deter appellant’s criminal activity. In our estimation, the record was adequate to support a sentence of total confinement and sufficiently reflected the grounds for the sentence imposed.

Order and Judgment of Sentence dated September 10, 1981, is reversed and remanded for trial on charges of rape, robbery, burglary, indecent assault, terroristic threats and theft by unlawful taking or disposition filed at No. 1981-0019; Order, dated February 10, 1982, to the extent it denied the Motion to Modify Sentence imposed at Nos. 1981-0050, 0051, 0052, 0053 and 0054 is affirmed. Order, dated February 10, 1982, is reversed to the extent it denied the Motion to Withdraw Guilty Plea and the Motion to Modify Sentence at No. 1981-0019.

      . We find no evidence in the record that the charges of indecent assault, terroristic threats and theft by unlawful taking or disposition were nol prossed by the Commonwealth; therefore, we remand for trial on all original charges filed at No. 1981-0019.

      . Act of December 30, 1974, P.L. 1052, No. 345, 42 Pa.C.S.A. § 9701 et seq. (as amended).


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    467 A.2d 636
    COMMONWEALTH of Pennsylvania v. Walter WYCHE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1983.
    Filed Oct. 28, 1983.

      Louis Lipschitz, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This is a direct appeal from judgment of sentence entered in a jury trial, after a finding of guilt of first degree murder and possession of instruments of crime. Post trial motions were filed by trial counsel; however, appellant has secured new counsel to preserve this appeal.

The relevant facts are as follows. The Commonwealth presented evidence that early one morning, one Keith Moody, the Commonwealth’s key witness, and Aubrey Miller, the victim, were on their way to pick up pizza. As they were walking down the street, they were confronted by two men, known to Moody by their neighborhood nicknames, who began to shoot at them. Moody and Miller successfully fled these assailants, but a short distance away were confronted by another man, also known to Moody by his neighborhood nickname, and identified as appellant. As Moody and Miller started to run again, this man also began shooting at them. Miller indicated that he had been hit and told Moody to get the police, which he did. It later turned out that Miller had been hit three times, once in the right thigh, once in the right hand and once in the pelvic area through the right buttock. Miller died of bleeding caused by the latter bullet which damaged major blood vessels and internal organs after entry.

The appellant defended on the theory that he was mistakenly identified, and that another had actually shot Miller. To this end, appellant offered the testimony of an eyewitness who identified one Terry Murphy as the gunman, and another witness who claimed that Terry Murphy had admitted the shooting to her. Terry Murphy was himself subpoenaed by appellant, but disappeared before trial and never reappeared.

Appellant first argues that the evidence was insufficiént to support a finding of first degree murder, since no specific intent to kill may be inferred from a bullet shot into the buttocks.

In reviewing the sufficiency of the evidence, we must view the evidence in a . light most favorable to the verdict winner, in this case the Commonwealth. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973). The test to be applied is whether accepting as true all of the. evidence, direct or circumstantial, and all reasonable inferences therefrom upon which, if believed, the jury could, properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the accused is guilty of the crime with which he is charged. Commonwealth v. Pitts, 450 Pa. 359, 301 A.2d 646 (1973).

Commonwealth v. Mangini, 478 Pa. 147, 152, 386 A.2d 482, 484-485 (1978). Here, the evidence so viewed, reveals that the appellant aggressively attacked the victim, shooting four shots, three of which hit their target. Although the fatal slug entered the victim through the buttock, the jury could properly infer the specific intent to kill from these circumstances. Commonwealth v. Padgett, 465 Pa. 1, 348 A.2d 87 (1975).

Appellant also argues that the lower court erred in denying his requested point for charge relating to the disappearance of Terry Murphy, who appellant claimed was the actual gunman. The requested point for charge was as follows: “3. When a person is sought in regard to a particular crime and the actor knows that he is being sought, evidence of flight is admissible to show the actor’s consciousness of guilt.”

We agree with the appellant that the benefit of a “flight” instruction, which is available to the Commonwealth with respect to the defendant’s guilty behavior, should also be available to a defendant with regard to another’s guilty behavior where the accused defends on that basis. Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981). However, in this case there was no showing that Terry Murphy, the missing witness, who was not charged with this crime, was aware that he was being sought by the appellant for its commission. In fact, Terry Murphy had coincidentally been subpoenaed in another case in which he was charged with a crime and had also failed to appear. Whatever Terry Murphy’s reasons for not appearing were, it cannot be said that it was more probable that he was evading one subpoena over the other, and, therefore, the evidence of his flight was not relevant and the requested point for charge was properly denied. Commonwealth v. Woong Knee New, 354 Pa. 188, 47 A.2d 450 (1946); Commonwealth v. Diggs, 260 Pa.Super. 349, 394 A.2d 586 (1978).

Appellant, through present counsel, also argues that trial counsel’s assistance was ineffective for the following reasons:

(1) failure to preserve the issue of the lower court’s allowance of an in-court identification of appellant (Appellant’s Brief at 15);
(2) failure to preserve the issue of the lower court’s allowance of certain hearsay testimony (Appellant’s Brief at 23);
(3) failure to preserve the issue of the lower court’s allowance of evidence of appellant’s gang membership (Appellant’s Brief at 26);
(4) failure to object to impeachment of defense witness by evidence of prior crimes (Appellant’s Brief at 36); and
(5) failure to preserve the issue of the lower court’s allowance of the use of a certain report to impeach a defense witness (Appellant’s Brief at 40).

No evidentiary hearing has been held on these points and the record is insufficient to determine whether trial counsel failed to preserve issues of arguable merit. Accordingly, the record is remanded to conduct an evidentiary on appellant’s claims of ineffective assistance of trial counsel.

Jurisdiction is not retained.

      . 18 Pa.C.S. § 2502(a).

      . 18 Pa.C.S. § 907.


author:
ROWLEY, Judge:
      CERCONE, President Judge:

text:
    467 A.2d 638
    COMMONWEALTH of Pennsylvania v. John B. NELSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 15, 1983.
    Filed Nov. 4, 1983.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and ROWLEY and CIRILLO, JJ.
   ROWLEY, Judge:

Appellant was convicted, after a non-jury trial, of corruption of minors. He was acquitted of charges of rape, indecent assault, simple assault, aggravated assault, terror-istic threats and unlawful restraint. Post-trial motions were filed and denied. Appellant was sentenced to “time-in” to twenty-three months imprisonment. This direct appeal followed.

On April 16, 1980, the fourteen-year-old victim, who was running away from a home for delinquent girls, met appellant at Woodrow Wilson High School in Camden, New Jersey. She asked appellant for directions to 35th Street. Appellant told the victim that he would take her there. After smoking some marijuana, provided by appellant, the two went to 35th street, but the victim could not find her friends’ house. Appellant invited her to stay with him, his wife and seven-year-old daughter in Philadelphia. The two then went to Philadelphia, where they spent the evening visiting various bars and smoking marijuana. The victim claimed that appellant forced her to have sex with him. However, appellant was acquitted of the rape and assault charges. He was convicted of corrupting the morals of a minor for giving marijuana to the victim.

The sole issue raised on appeal is the sufficiency of the evidence. Appellant argues that the evidence is insufficient to prove that he was eighteen years of age or older at the time of the offense and, therefore, the judgment of sentence should be arrested and he should be discharged. While it is clear that a criminal conviction may not be based upon mere surmise or conjecture, the Commonwealth’s burden in proving a criminal offense or the elements thereof may be sustained by means of wholly circumstantial evidence. Commonwealth v. Berrios, 495 Pa. 444, 434 A.2d 1173 (1981); Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981). Furthermore, in testing the legal sufficiency of evidence to support a verdict, a reviewing court is not permitted to substitute its judgment for that of the fact finder, but is restricted to assessing the evidence in the light most favorable to the verdict winner and drawing all proper inferences that the evidence suggests in that party’s favor. Commonwealth v. Smith, 490 Pa. 374, 416 A.2d 517 (1980); Commonwealth v. Jones, 291 Pa.Super. 69, 435 A.2d 223 (1981). It is within the province of the trier of fact, in a criminal prosecution, to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. So, too, the finder of fact is free to believe all, part or none of the evidence. Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980); Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979); Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1979). Our review of the record in this light discloses there is sufficient evidence to support the court’s conclusion that appellant was at least eighteen years of age.

A person’s age need not be proved only by direct testimony, but may also be proved by circumstantial evidence. Commonwealth v. Jones, 314 Pa.Super. 497, 461 A.2d 267 (1983). The victim testified that she accompanied appellant to several bars, where he drank beer and ordered sodas for her. She testified that they walked over to the Terrain, that appellant told her it was a “college dorm” and said he “used to live there.” It would be reasonable to infer from the former testimony that appellant was at least the legal drinking age of twenty-one. One could reasonably infer from the latter testimony that appellant, who had lived in a “college dorm”, had attended college and was therefore at least eighteen years of age.

Appellant testified that he worked in a bar called Drury Lane. He admitted accompanying the victim to three bars, including his place of employment. He stated that he was drinking beer, the victim was drinking sodas, and that he did not give the victim any alcohol because he knew she was not twenty-one. That testimony warrants an inference that appellant was at least twenty-one years of age at the time of the offense. In addition, appellant’s physical appearance, which was observed by the factfinder at trial, provided a circumstance from which it could determine his age. See Commonwealth v. Jones, supra.

Appellant relies on Commonwealth v. Walker, 33 Pa.Super. 167 (1907). In Walker, this Court reversed a conviction for statutory rape where the only mention of the defendant’s age occurred when the trial court charged the jury that they could judge his age by his appearance. In Walker, however, the defendant did not testify and was never identified by any witness. The Court stated that there was no way of knowing with any degree of certainty if the jury had been observing the right man when they judged his appearance. We do not have that problem in this case. Appellant was clearly identified. Moreover, he testified in his own defense. Thus, the record is clear that the jury, in judging appellant’s age by his appearance, observed the right person. It is true that in this case the Commonwealth did not specifically offer the person or appearance of the defendant as an exhibit as was done in Commonwealth v. San Juan, 129 Pa.Super. 179, 195 A. 433 (1937). In affirming the conviction in that case, the Court noted that “the prosecuting attorney followed too literally the method suggested by the opinion writer in Commonwealth v. Walker, supra, to wit, that the defendant’s appearance should be put into evidence in the regular manner of offering other evidence.” Id,., 129 Pa.Superior Ct. at 184, 195 A. at 436. In our opinion, neither of the above-cited cases requires that the Commonwealth formally move the appellant’s appearance into evidence before that factor may be considered, along with all of the other circumstantial evidence presented at trial, in determining whether appellant was at least eighteen years of age. Therefore, we hold that the record evidence is sufficient to sustain the verdict and that appellant’s request that judgment be arrested was properly denied.

After this appeal was filed, the trial judge filed an opinion pursuant to Pa.R.A.P. 1925(b). In discussing the sufficiency of the evidence as to appellant’s age, he stated: “[a]t page three (3) of the notes of testimony received at trial, John Nelson, when questioned by his own attorney, responded that he was twenty-eight years of age.” It is correct that this reference to appellant’s testimony is contained in the pre-trial, jury waiver colloquy immediately preceeding the beginning of trial. It is also correct that the statement is not a part of the “trial record”. We have not, therefore, included that testimony by the appellant in our review of the evidence or used it as a basis for our conclusion that the evidence is sufficient to support the verdict of guilty. Where the trial court reaches a proper result but for an erroneous reason, we may, of course, affirm without regard to the ground upon which the trial court relied. E.J. McAleer and Co., Inc. v. Iceland Procs., 475 Pa. 610, 381 A.2d 441 (1977), Turnway Corporation v. Soffer, 461 Pa. 447, 336 A.2d 871 (1975). Thus, although the trial court here included in its opinion an erroneous reason for the conclusion that the evidence on this issue is sufficient, we may affirm where our review, limited to the trial record itself, discloses that the evidence is, in fact, sufficient.

A review of the original trial record filed with our Court discloses that appellant’s pre-trial statement was not offered or received into evidence during the trial. Nor is there anything in the trial record to indicate that the Court considered that statement in reaching its verdict. However, assuming the “pre-trial testimony” of the appellant was considered by the trial court in reaching its verdict, that “error” does not render the evidence insufficient or require that appellant be discharged. In passing upon the sufficiency of the evidence, we are not to exclude evidence that may have been erroneously received or considered and then evaluate the issue on the balance of the evidence. On the contrary, we are to consider all of the evidence whether erroneously received or not and evaluate the sufficiency of the evidence on that basis. The proper remedy where evidence is improperly received and its introduction constitutes prejudicial error is, at the most, the grant of a new trial at which the evidence will be excluded. However, appellant in this case does not seek a new trial. Therefore, we need not consider whether the evidence of appellant’s “pre-trial testimony”, if considered by the trial court in reaching its verdict, was prejudicial error so as to require a new trial. Appellant, having asked only to be discharged on the ground that the evidence was insufficient, is not entitled to a new trial on the ground that the trial court may have considered, in reaching its verdict, evidence not properly in the trial record. On appeal, a request for arrest of judgment on the ground that the evidence is insufficient does not present as an issue for our determination alleged trial errors that may or may not warrant a new trial. Compare Com. v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982) [appeal quashed where no issues were properly raised in appellant’s brief].

Judgment of sentence affirmed.

CERCONE, President Judge, files a dissenting opinion.

CERCONE, President Judge:

I dissent.

While I agree with the majority that there are many ways by which the Commonwealth might have proved appellant’s age, I do not find these to be dispositive of appellant’s contention in the instant case, where the trial judge, sitting as a factfinder, specifically and singly listed appellant’s pre-trial colloquy as the court’s basis for finding appellant to be over eighteen. Though the general rule is that a judge, as factfinder, is presumed to disregard inadmissible evidence and consider only competent evidence, Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Glover, 266 Pa.Superior Ct. 531, 405 A.2d 945 (1979), this presumption has been negated in appellant’s case by the express statements of the trial judge in his opinion. As we said in Commonwealth v. Alston, 266 Pa.Superior Ct. 18, 21, 402 A.2d 1056, 1057 (1979), “[I]f there is any reasonable ground to conclude that the arguably tainted evidence in issue may have contributed to the conviction, it is not appropriate to find the error harmless. Commonwealth v. Laws, 474 Pa. 318, 378 A.2d 812 (1977).” Accord Commonwealth v. Davis, supra; Commonwealth v. Oliver, 273 Pa.Superior Ct. 140, 416 A.2d 1128 (1979); Commonwealth v. Hart, 272 Pa.Superior Ct. 189, 414 A.2d 1071 (1979). Indeed, our Supreme Court has ruled that “an error is harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless.” Commonwealth v. Story, 476 Pa. 391, 406, 383 A.2d 155, 162 (1978) (footnote deleted). The term “harmless” was defined by the Supreme Court as follows:

[A]n error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict. Whenever there is a “ ‘reasonable possibility’ ” that an error “ ‘might have contributed to the conviction, ’ ” the error is not harmless. Commonwealth v. Davis, [452 Pa. 171, 178, 305 A.2d 715, 719 (1973)] quoting Chapman v. California [386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) ]

Id., 476 Pa. at 412, 383 A.2d at 164. (emphasis added.)

Therefore, I would reverse.


author: ROWLEY, Judge: BECK, Judge,

text:
    467 A.2d 821
    Leonard J. PIRILLA, Jr., Appellant, v. Bruno L. BONUCCI, Herman W. Blair, Joseph Dorazio, Elbert B. Lowther, Walter Mucci, Peter Rebottini, Thomas Kalman, Perryopolis Auto Auction, Inc., and Perryopolis Land Company, Inc.
    Superior Court of Pennsylvania.
    Argued April 27, 1982.
    Filed Sept. 30, 1983.
    Reargument Denied Dec. 9, 1983.
    Petition for Allowance of Appeal Denied March 26, 1984.

      Thomas R. Wright, Pittsburgh, for appellant.
    Charles W. Watson, Connellsville, for appellees.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   ROWLEY, Judge:

This is an appeal from a final decree in equity entered by the trial court denying appellant’s request for specific performance of a contract for the sale of shares of stock on the ground that the contract was not enforceable because the writings relied on by him to prove the contract do not satisfy the applicable statute of frauds, 13 Pa.C.S. § 8319. We do not agree and, therefore, reverse and remand for proceedings not inconsistent with this opinion.

The facts are stipulated by the parties. Perryopolis Land Company, Inc. and Perryopolis Auto Auction, Inc. are two closely held Pennsylvania corporations which share a common group of stockholders. On January 10, 1977, a special stockholders’ meeting of each corporation was held. At that meeting appellant, Leonard J. Pirilla, Jr., who owned 9.09% of the shares of stock in each corporation, offered to buy all of the outstanding shares of stock held by the remaining shareholders in both corporations for $525,-000.00, plus a $15,000.00 commission to the Freeze Dorazio Agency, Inc. The minutes of the stockholders’ meetings were recorded and reflect that all of the shareholders of both corporations were present in person or by proxy and that all of the shareholders voted to accept appellant’s offer. The minutes of the two meetings likewise reflect that the officers of the two corporations were authorized by the shareholders to implement the sale of all of the shares of their stock in both corporations to appellant. Pursuant to the authorization given to the officers, a Letter of Intent was signed the next day by appellant and the officers of Perryopolis Land Company, Inc. and Perryopolis Auto Auction, Inc. which contained all the terms of the sale. Subsequently, on January 20, 1977, appellant tendered a formal Stock Purchase Agreement to the other shareholders. The individual appellees, who own more than 63% of the stock of each corporation, refused to execute the Stock Purchase Agreement, and gave appellant written notice that they rejected “in total the proposed sales agreement previously delivered.” At the next scheduled meetings of the two corporations, the shareholders refused to ratify the minutes of the January 10, 1977 meetings and repudiated the sale.

Appellant instituted this action for specific performance, and the appellees raised the defense of the statute of frauds. The court below denied appellant’s request for specific performance, finding that the statute of frauds rendered the contract unenforceable. This appeal followed.

In Sorokin v. Krasner, 289 Pa.Super. 324, 327, 433 A.2d 88, 89-90 (1981), our standard of review in equity cases was set forth as follows:

The scope of review of an appellate court in the consideration of an appeal from a final decree in an equity action is well established. A Chancellor’s findings of fact, approved by the court en banc, are entitled to the weight of a jury’s verdict and will not be reversed on appeal if supported by adequate evidence. See McDole v. Du-quesne Brewing Co. of Pittsburgh, 281 Pa.Super. 78, 83, 421 A.2d 1155, 1158 (1980), and cases cited therein. The Chancellor’s findings are afforded particular weight in cases in which the credibility of witnesses must be evaluated, as the Chancellor has had the opportunity to hear their actual testimony and to observe their demeanor on the witness stand. See Fascione v. Fascione, 272 Pa.Super. 530, 416 A.2d 1023 (1979). We should not reverse on appeal unless it is evident that the lower court abused its discretion, lacked evidentiary support for its findings, or was capricious in its disbelief of evidence submitted. See Davis v. Buckham, 280 Pa.Super. 106, 421 A.2d 427 (1980); Commonwealth ex rel. Powelson v. Powelson, 277 Pa.Super. 220, 222, 419 A.2d 741, 742 (1980). The same principles apply when a single judge, rather than a court en banc, reviews the case. Gilmore v. Northeast Dodge Co., Inc., 278 Pa.Super. 209, 420 A.2d 504 (1980). Therefore, we must examine the evidence of record in the instant case to determine whether any basis exists for a reversal of the lower court’s findings and conclusions.

The question presented before the Chancellor and the court en banc was a legal one, however, and not a factual one. Therefore, the trial court’s legal conclusion based upon the stipulated facts may be appropriately reviewed by us for error. The crucial question is whether an enforceable agreement for the sale of securities existed between the parties. 13 Pa.C.S. § 8319 provides that:

A contract for the sale of securities is not enforceable by way of action or defense unless:
(1) there is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price;
(2) delivery of the security has been accepted or payment has been made but the contract is enforceable under this paragraph only to the extent of such delivery or payment;
(3) within a reasonable time a writing in confirmation of the sale or purchase and sufficient against the sender under paragraph (1) has been received by the party against whom enforcement is sought and he has failed to send written objection to its contents within ten days after receipt; or
(4) the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract was made for sale of a stated quantity of described securities at a defined or stated price.

It is well settled that several writings may be used to satisfy the requirements of 13 Pa.C.S. § 8319(1) if they bear an express reference to one another or manifest internal evidence of their interrelation. Conaway v. 20th Century Corporation, 491 Pa. 189, 201, 420 A.2d 405, 411 (1980).

In this case, there are five documents which appellant claims satisfy the statutory requirement that the contract be in writing. They are: the minutes of the January 10, 1977 meetings of each of the two corporations, the Letter of Intent signed by appellant and the officers of the two corporations, the unexecuted Stock Purchase Agreement, and the stipulation of facts submitted by the parties. The Chancellor, as affirmed by the court en banc, concluded that none of these documents, whether considered alone or in conjunction with each other, demonstrated that the “party to be charged” had signed any “paper, document or commitment” which constituted a writing sufficient to satisfy 13 Pa.C.S. § 8319(1).

Appellees admit in the stipulation of facts that the events recorded in the minutes of January 10, 1977 shareholder’s meetings took place. At those meetings, the officers of the two corporations were given authority to consummate the sale of all of the shareholder’s shares of stock in both corporations to the appellant. The individual shareholders, who owned all of the outstanding stock of the two corporations, were represented at the January 10, 1977 meetings. It is clear that at that meeting each of the appellees authorized the corporate officers to represent them in the sale of their stock to appellant. Although the creation of an agency relationship requires a manifestation by the principal that the agent shall act for him, such a relationship may be inferred from the circumstances and need not be in writing. Scott v. Purcell, 490 Pa. 109, 415 A.2d 56 (1980). Therefore, since the corporations had no stock to sell, the authority given to the officers was to act on behalf of the individual shareholders and not the corporations. The fact that the agency relationship in this case was created in the context of a corporate meeting was merely incidental.

Our reading of the record convinces us that the officers of the two corporations were authorized to act as agents of the individual shareholders. As such, the officers signed the Letter of Intent agreeing to sell the appellees’ shares of stock in the two corporations to appellant. The Letter of Intent contains a stated quantity of stock, i.e. all the outstanding shares of both corporations, and a defined and stated price, i.e. $525,000.00, plus a $15,000.00 commission to the Freeze Dorazio Agency, Inc., subject to certain conditions. Consequently, the requirements of 13 Pa.C.S. § 8319(1) have been met and an enforceable contract exists.

We reverse and remand the case for enforcement of the contract. In the stipulation of facts submitted by the parties, the percentage of stock owned by each appellee in each corporation is specified. The percentage of each appel-lee’s ownership is the same in each of the corporations, with the exception of Peter Rebottini who is listed as owning 4.545% of the outstanding shares of Perryopolis Land Company, Inc. and 9.09% of the outstanding shares of Perryopo-lis Auto Auction, Inc. Because the percentage of each shareholder holdings specified in the stipulation of facts for Perryopolis Auto Auction, Inc. total over 100.00%, it may well be that some error has occurred in compiling the percentages of the appellees’ ownership in that corporation. On remand the trial court should determine if the percentages as listed in the stipulation of facts are correct. If the percentages as listed in the stipulation of facts are correct, the trial court may hold a hearing to determine the price per share of the stock of each corporation so as to implement the division of the $525,000.00. Should an error be found, however, and it is subsequently determined that the percentages of outstanding shares owned by the various individuals in each corporation is the same, then the division of the sale price between the shareholders can be easily accomplished without the need for additional testimony.

Reversed and Remanded

Jurisdiction is relinquished.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I respectfully dissent, on the grounds that the documents relied upon by appellant to satisfy the statute of frauds in a sale of securities are not sufficient to satisfy 13 Pa.C.S. § 8319(1). The majority apparently accepts the minutes of the two shareholders meetings as (1) written proof of the shareholders’ acceptance of appellant’s offer, and (2) evidence of the shareholders authorization of the officers to act as agents to complete the sale. I disagree.

My analysis begins with the nature of the writings which are in issue. The principal documents relied upon by appellant are the two sets of corporate minutes, signed by the secretary of Perryopolis Auto Auction, Inc. and the secretary-treasurer of Perryopolis Land Co. Inc. When an officer signs minutes of a meeting, he is testifying as to their accuracy for the corporation. He is not acting as an agent of the shareholders. I distinguish between a simple writing, which minutes certainly are, and a writing signed by the “party against whom enforcement is sought or by his authorized agent” within the meaning of § 8319(1).

The shareholders of both corporations assert that the unratified and repudiated minutes are not an enforceable agreement of sale. They cite Konsuvo v. Netzke, 91 N.J. Super. 353, 220 A.2d 424 (1966), in which the Court denied specific performance of a sale of securities where corporate minutes were offered to satisfy the statute of frauds. The Court ruled that minutes, to satisfy the statute, must be subsequently ratified and adopted by the shareholders. Thomas v. Prewitt, 355 So.2d 657 (Miss.1978), relying on Konsuvo, held that minutes, even when prepared by the corporate attorney and signed by the corporation’s president and secretary, were not a sufficient writing to constitute an enforceable sales contract. I believe the reasoning in these two cases was correct.

Nor are the other documents offered by appellant, singly or together, a binding contract. The Letter of Intent, signed by the officers, is not an agreement of sale. Although the title of the document is Letter of Intent rather than “contract” or “agreement” I do not believe that the title is dispositive. However, it appears clear that if the parties themselves intended this Letter of Intent to be a final agreement of sale, there would have been no subsequent Stock Purchase Agreement prepared and submitted by appellant. As our Supreme Court explained in Cona-way, supra, writings must show more than plan and intent. Writings which show that the parties are still negotiating, or which look forward toward a future contract, do not satisfy the statute of frauds. The writings must demonstrate that “a contract has been made ” (491 Pa. at 200, 420 A.2d at 411) (emphasis in original).

If any agency was created by the corporate minutes, it was to implement a sale, not to make the sale final. In each case, the officers of the corporation, in the minutes of January 10, 1977, were authorized to “proceed with the sale” provided certain conditions were met. Without more, the authority to implement an agreement does not constitute authority to make a contract. Therefore, even if the Letter of Intent could be viewed as an Agreement of Sale, the officers who signed it were not properly authorized by the minutes to complete the sale.

Appellant’s contention that appellees have made a judicial admission of the existence of a contract is unconvincing. The Stipulation of Facts as to the minutes (Nos. 6 and 7, R.4) is simply that the minutes as written are an accurate record of the meetings.

For all these reasons I would affirm the lower court’s order denying the request for specific performance.

      . Formerly 12A P.S. § 8-319.

      . The discussion and application of the provisions of the Act of May 5, 1933, P.L. 364, art. Ill, § 311, 15 P.S. § 1311(B), found in the trial court’s opinion is misplaced since the only issue raised on appeal involves the sale of corporate stock. Although appellant originally offered to purchase the assets of each corporation as well as the stock, the deal which was consummated between the parties involved only the stock. Appellant brought his action in equity for specific performance of a contract for the sale of securities.

      . The Letter of Intent was signed by Peter Rebottini and Bruno Bonucci, Vice President and Secretary, respectively, of Perryopolis Land Company, and Bruno Bonucci and Elbert B. Lowther, President and Secretary, respectively, of Perryopolis Auto Auction, Inc.

      . In the stipulation of facts submitted by the parties, it was agreed that neither corporation owned stock in the other, nor did either corporation hold any treasury stock. The only stock appellant could have purchased in the two corporations was that owned by the individual shareholders.

      . Because of our conclusion that the requirements of 13 Pa.C.S. § 8319(1) have been met, we do not address appellant’s argument that 13 Pa.C.S. § 8319(4) has also been satisfied.


author: BROSKY, Judge:

text:
    467 A.2d 826
    COMMONWEALTH of Pennsylvania v. William T. BRADLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 24, 1982.
    Filed Oct. 14, 1983.

      See also, 457 A.2d 544.
    Gilbert E. Toll, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   BROSKY, Judge:

In this case we must determine whether appellant’s counsel’s request to withdraw from representation of Mr. Bradley should be granted. Because we have concluded that the appeal is wholly frivolous and that counsel has complied with the requirements of Anders and McClendon, we grant the request to withdraw and affirm the judgment of sentence.

On October 4, 1977 appellant entered pleas of guilty to a series of burglaries and robberies in Philadelphia. lie was sentenced to terms of imprisonment totaling fifteen to thirty years, with a twenty year concurrent probationary term. The sentence was to be served concurrently with sentences on other unrelated charges.

No petition to withdraw the guilty plea was filed, but appellant did file the present appeal pro se. Appellant had been represented by the Defender Association of Philadelphia. When this appeal was filed, present counsel was appointed.

In his brief counsel explains that although he made numerous requests that appellant inform him of matters complained of on appeal, appellant never supplied such information and in fact appellant never suggested to him that he wished to withdraw his guilty plea, that his counsel was ineffective, that he did not understand his rights, that he did not intend to plead guilty or that the sentence was improper. Consequently, no statement of matters complained of was filed. We could, of course, consider the failure to comply with a direction to file such a statement, a waiver of all claims. See Pa.R.A.P. 1925(b).

Before deciding whether counsel’s request to withdraw should be granted we must first determine whether he has complied with the following requirements of McClendon, supra. They are: 1) counsel must have notified appellant of his request to withdraw; 2) counsel must furnish appellant with a copy of his Anders brief; 3) counsel must have advised appellant of his right to retain new counsel or raise any points he may deem worthy of his consideration in a pro se brief. See also Commonwealth v. Walker, 311 Pa.Super. 213, 457 A.2d 571 (1983), Commonwealth v. Worthy, 301 Pa.Super. 46, 446 A.2d 1327 (1982).

Although the first request filed by counsel did not satisfy all of these requirements, the amended brief has complied with the McClendon standard.

The right to withdraw is tied to a finding by this court that the appeal is wholly frivolous. Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974). We have examined the record and agree with counsel’s conclusion that the instant appeal is wholly frivolous.

On examination of the record in its entirety shows that the lower court held a colloquy during which it elicited from appellant the information which met the guidelines established in the comment to Pa.R.Crim.Proc. 319.

Indeed in his Anders brief counsel does not argue that those requirements are lacking, but that appellant was not adequately advised of his right to be free of self-incrimination.

In Commonwealth v. Martin, 445 Pa. 49, 282 A.2d 241 (1971) our Supreme Court cited with approval a guilty plea colloquy in which the court did specifically inform the defendant of his right to go to trial and not testify. The defendant was also told that no inference of guilt could be drawn from his election to remain silent.

The colloquy in the instant case was not as clear in this regard as was the exchange quoted in Martin, Id. Nonetheless, it was extensive and adequately informed appellant of the rights he was waiving by pleading guilty.

Indeed, the colloquy indicates that the guilty plea was entered in a plea bargain arrangement which was explained to appellant and what was effectuated.

Under these circumstances, we grant counsel’s request to withdraw.

Judgment of sentence affirmed.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

      . See Commonwealth v. Bradley, 311 Pa.Super. 160, 457 A.2d 544 (1983).

      . Counsel argues that although the issue of propriety of the guilty plea has been waived due to appellant’s failure to file a motion to withdraw, (See Pa.R.Crim.Proc. 321; Commonwealth v. Harris, 492 Pa. 381, 424 A.2d 1242 (1981)), that previous counsel was ineffective in not filing such a motion. However, as we conclude that a challenge to the plea colloquy would have been frivolous, we will not find previous counsel ineffective.


author: SPAETH, Judge:

text:
    467 A.2d 828
    In re ADOPTION OF Raymond J. DURHAM, Henry J. Durham and Michael A. Durham. Appeal of Ruth M. Durham DUMAS, Natural Mother.
    Superior Court of Pennsylvania.
    Argued June 7, 1983.
    Filed Oct. 28, 1983.

      Mary Ann McConnell, Mercer, for appellant.
    Brenda Katherine McBride, Grove City, for appellees.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   SPAETH, Judge:

This appeal is from an order involuntarily terminating appellant’s parental rights to her three children. We have concluded that the trial court applied an incorrect standard of proof, and unduly restricted the evidence. We therefore reverse and remand for a new hearing.

In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Court held that parental rights may not be involuntarily terminated except upon at least clear and convincing evidence. In In Re Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983), we held

that any case in which a party’s parental rights were terminated based on a preponderance of the evidence standard should be remanded to the trial court for further proceedings at which the constitutionally mandated clear and convincing evidence standard shall be applied. [ ] We do not, however, feel that the lower court must, in all cases, hold new evidentiary hearings.
Id., 313 Pa.Superior Ct. at 323, 459 A.2d at 1251 (footnote omitted).

Here the trial court applied the preponderance of the evidence standard. Slip op. filed Feb. 10, 1982, at 2. Accordingly, the case must be remanded so that the court may apply the clear and convincing evidence standard. (It is only fair to note that when the trial court reached its decision, the applicable standard Jwas the preponderance of evidence standard.) The only issue requiring extended discussion is whether the court unduly restricted the testimony and on remand, must therefore hold a new hearing.

On April 28, 1978, appellant’s three children, Raymond, Henry, and Michael, then 9, 8, and 7 years old, were adjudicated dependent. They were placed in the custody of Mercer County Children and Youth Services, which placed them in a foster home. In August 1979 the agency wrote to appellant, who was then living in New York, informing her that the agency “intend[ed] to work towards” the adoption of her children by their foster parents, and advising her to consult an attorney, since Pennsylvania law would permit an adoption if appellant had no contact with her children for six months. A New York attorney representing appellant replied to the agency’s letter, stating that appellant was opposed to her children being adopted, and protesting that a letter appellant had written the agency in December 1978, requesting the address of the children and that she be permitted to visit them, had not been answered. On September 21 the agency replied to appellant’s attorney. The agency did not give an address for appellant’s children, but said that appellant had shown no interest in her children’s progress, and had “only to request a visit” with her children in Mercer County. On October 17 the agency again wrote to appellant. The letter asked that appellant “consider giving consent to [her children’s] adoption,” going on to say that if she intended to seek custody of the children, “the first [agency’s emphasis] thing you must do is contact this agency. Never have we denied you visits. You simply need to call to schedule an appointment to make arrangements to travel to Mercer County.” Appellant then telephoned the agency to explain that she was unable to make a trip to Mercer County to visit her children. The agency responded with a letter of November 16, telling appellant that as evidence of her interest in the children she might write them at least once a month and perhaps send them each a Christmas gift. The agency further advised appellant that the foster parents were “very much interested in adopting the children” and that should she continue to have no regular contact with her children and the agency, the agency would file a petition for the involuntary termination of her parental rights so that the foster parents could adopt the children without her consent. The letter urged appellant to consult an attorney. On December 17 appellant wrote to her children, stating that she loved them and missed them. She also sent them Christmas gifts. From then until July 1980 appellant had no contact with her children or the agency.

On July 3, 1980, the agency filed a petition asking that appellant’s parental rights be involuntarily terminated. The petition alleged that for the six-month period from December 18, 1979, to July 1, 1980, appellant had “evidenced a settled purpose of relinquishing her parental rights,” and had “refused or failed to perform [her] parental duties.” A hearing was held on August 25, but appellant did not appear nor was she represented by counsel. On August 27 the trial court filed an opinion making findings of fact and conclusions of law, and entered a decree nisi terminating appellant’s parental rights and giving her 20 days in which to file exceptions. On September 30 the court granted appellant 20 days from that date to file exceptions; the court stated that it had been informed that appellant had moved, and expressed its concern that she might not have received the previous opinion and decree nisi. On October 15 the court appointed counsel for appellant, and on October 21 appellant was given an additional 20 days in which to file exceptions. On November 10 appellant’s attorney filed exceptions, claiming that the court had erred in entering its decree nisi in appellant’s absence, and in failing to inform appellant that if she could not afford an attorney, one would be appointed to represent her. On January 22, 1981, the court vacated its decree nisi, and ordered that “a hearing de novo shall be held.”

The new hearing was held on March 25, 1981. Appellant appeared, with her court-appointed attorney. Also present were an attorney representing the children and an attorney representing the agency. A clinical psychologist, two supervisors from the agency, the foster mother, and appellant testified. On July 29 the trial court filed an opinion, which included findings of fact, discussion, and conclusions of law, and a decree nisi terminating appellant’s parental rights on the grounds that for a period of at least six months she “ha[d] evidenced a settled purpose of relinquishment of her parental claim and ha[d] refused or failed to perform parental duties as to her three children.” Appellant filed exceptions, and on February 8, 1982, the trial court filed an opinion and final decree dismissing the exceptions and terminating appellant’s parental rights to the children.

Appellant’s first and third exceptions—we see no need to discuss the others—were to the action of the trial court in refusing to hear testimony of appellant’s activities after the six-month period of December 1979 to July 1980, during which appellant had no contact with her children. Appellant was permitted to testify concerning her contact with her children prior to the six-month period and to explain her lack of contact with her children and the agency during the period from December 1979 to July 1980. The trial court, however, would not permit appellant to testify as to events which occurred subsequent to July of 1980.

Q. [APPELLANT’S ATTORNEY] How often have you been in contact with your children since July of 1980?
A. [APPELLANT] I’ve been calling my boys once a month on the telephone since I’ve gotten their phone number.
MR. GRABAN: [THE AGENCY’S ATTORNEY] I object for the record. I don’t think that what’s happened since July of ’80 is relevant to this hearing. We’d be glad to stipulate that the woman has had contact since that time. The reason we make that objection is that we understand this hearing today to be the August, 1980, hearing, which is being held so that this woman can be afforded counsel.
THE COURT: Objection sustained.
N.T. at 15.

It thus appears that the agency’s attorney objected, and the court sustained the objection, to testimony regarding appellant’s contact with her children after the six-month period on the ground that the new hearing was to be conducted as if it were the August 1980 hearing. In its opinion in support of its dismissal of appellant’s exceptions, however, the court gave a different explanation for limiting appellant’s testimony. The court explained:

Once a six-months’ period of abandonment has passed, mere renewal of interest and expression of desire for return of a discarded child does not negate abandonment. In re: J.F., 487 Pa. 115, 408 A.2d 1382 (1979). Matter of Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978)----It would appear that the natural mother’s contention is that although the statute provides for a six-months’ period and although there may be evidence to demonstrate abandonment for a six-months’ period as required by the Adoption Act that subsequent interest can nullify the legal effect of prior in action. The mother has failed to present any authority for this position and the law as noted herein is against it.
Slip op. filed Peb. 10, 1982, at 2-3.

We are not persuaded by this reasoning.

In In Re Adoption of R.W.B., 485 Pa. 168, 401 A.2d 347 (1979), the Court said:

This Court has held that section 311(1) [now 23 Pa.C.S.A. § 2511(a)(1) ] must be read in the disjunctive and termination of parental rights may be ordered if the evidence establishes either a “settled purpose” to relinquish parental claim for a period of at least six months or a failure to perform parental duties for the same length of time. Id., 485 Pa. at 173, 401 A.2d at 349 (emphasis in original).

Here, the trial court’s decree nisi states that appellant’s parental rights were terminated on both grounds: because she “ha[d] evidenced a settled purpose of relinquishment of her parental claim and [emphasis added] ha[d] refused or failed to perform parental duties____”

A finding of settled purpose “requires an affirmative indication of a positive intent by the parent.” In Re Adoption of Wolfe, 454 Pa. 550, 555, 312 A.2d 793, 796 (1973). Evidence of inaction and lack of interest for six months will not conclusively establish settled purpose, Adoption of Baby Girl Fleming, 471 Pa. 73, 369 A.2d 1200 (1977); In Re Adoption of Wolfe, supra, and evidence of a parent’s conduct subsequent to the claimed abandonment may disprove settled purpose. Thus in Adoption of Baby Girl Fleming, supra, the trial court admitted evidence that the mother had been pressured by her parents into agreeing to adoption and did not find out that she could recant her voluntary relinquishment until a year and a half after she had delivered the child to the intermediary. In affirming the trial court’s finding that there had been no settled purpose, the Supreme Court said:

If the evidence presented on these claims by [the mother] were accepted as true, it could rebut the inference of a settled purpose which arises from the affirmative act of delivery of the child to the intermediary. Additionally, such evidence could undermine the argument that a final purpose persisted for the required time period because evidence of subsequent statements or inaction by the mother have to be viewed in light of her wrongful impression that the adoption was irrevocable [when she delivered the child to the intermediary.]
Id., 471 Pa. at 79, 369 A.2d at 1203.

In Adoption of M.T.T., 467 Pa. 88, 354 A.2d 564 (1976), the Court similarly considered evidence of a parent’s conduct subsequent to the claimed abandonment. There, the father, who was in prison, had had no contact with his child or the agency for nine months, from January 1974, when the father wrote a letter to the agency asking that he be informed of all future decisions concerning his child, until October 1974, when the agency requested a hearing to terminate his rights. Later in October the father was released from prison, and he had a meeting with the agency, but his request for information about his son was refused. The father also tried to find his son, but without success. In January 1975 the trial court on the agency’s petition terminated the father’s parental rights. The Supreme Court reversed, finding the evidence insufficient to support a finding of settled purpose. Said the Court:

Appellant, in his initial contacts with children’s services, demonstrated his continuing interest in maintaining a parental relationship with his son and his desire to be informed of all legal proceedings involving his son. There is no evidence whatever that appellant changed his mind after writing this letter other than his failure to contact children’s services for the following nine months ____ Appellant, once he could make personal inquiries, made diligent efforts to locate his son. These factors demonstrate that appellant did not make “an affirmative indication of a positive intent” to abandon M. Rather, the record shows that he fully intended to exercise his parental rights as fully and as soon as possible.
Id., 467 Pa. at 95, 354 A.2d at 568.

Thus the Court looked to evidence of the father’s actions after the nine month period of “abandonment” in order to decide whether during that period the father had formed a settled purpose of relinquishing his parental rights.

A similar inquiry must be made where the claim is that the parent has failed to perform parental duties for a period of at least six months, that is to say, in deciding whether there has been such a failure, the trial court is not to confine itself to considering what happened during the six months; it must also consider what happened after-wards. Thus, in In Re Adoption of J.A.B., 487 Pa. 79, 408 A.2d 1363 (1979), the Court stated:

The court’s finding of an absence of direct contact between J. and his parents for a period in excess of six months is not disputed. However, this fact alone will not support a determination of failure to perform parental duties where the totality of the circumstances, including evidence of the parents’ individual circumstances and any explanation offered by them, does not warrant termination of their rights.
Id., 487 Pa. at 89, 408 A.2d 1363 (emphasis added).

And in In Re Adoption of R.W.B., supra, the Court determined that a six month failure to perform parental duties resulted from a personal crisis and therefore refused to terminate a mother’s parental rights. It considered the mother’s actions in attempting to regain custody of her child after having relinquished custody for over six months. The Court stated:

After approximately six months, when the harassment [by her husband] stopped and C.W. regained emotional control, she reevaluated the situation and determined she could, after all, care for the child. Under these circumstances, we must view the transfer of the child to persons who could provide better care as temporary and a result of the mother’s personal crisis.
Id. 485 Pa. at 176, 401 A.2d at 351.

These decisions reflect the familiar evidentiary principle that in general, all relevant evidence should be admitted. Relevancy has been defined as “probative worth” and as “the tendency of the evidence to establish a material proposition.” McCORMICK ON EVIDENCE, § 185 at 433, 435 (2nd ed.) (1972). Therefore, “in the search for the truth of the issue, reason would suggest that if evidence is logically probative, it should be received unless there is some distinct ground for refusing to hear it.” Id. at 433. Clearly, evidence of a parent’s conduct after the period of alleged abandonment may be relevant to a finding whether in fact abandonment occurred.

In support of its ruling excluding evidence of appellant’s conduct after the six-month period, the trial court—as we have already noted, in quoting from its opinion—relied on In re J.F., supra, and Matter of Adoption of David C., supra. But these cases are inapposite, for they involve a substantive, not an evidentiary, principle. They hold that once parental rights have been lost, they will not be “revive^]” by the parent’s “renewal of interest” in the child. Matter of Adoption of David C., supra 479 Pa. at 15, 387 A.2d at 811, quoting Adoption of McCray, 460 Pa. 210, 217, 331 A.2d 652, 655-56 (1975). The issue here is what evidence the court must consider in deciding whether parental rights have in fact been lost. Specifically: It is quite possible that if the trial court had permitted appellant to testify regarding her conduct with respect to the children after the six-month period, the court’s decision would have been the same. Having considered the testimony as part of the “totality of the circumstances,” In Re Adoption of J.A.B., supra, the court might nevertheless have found that for a period of at least six months appellant had formed either a settled purpose to relinquish her parental rights, or had failed to perform her parental duties, or both. In that event, the court might properly have ordered appellant’s parental rights involuntarily terminated, with the observation that while the evidence showed a “renewal of interest” by appellant in her children, that did not undo her prior conduct. Having “discarded” her children, Adoption of McCray, supra, she could not reclaim them. Matter of Adoption of David C., supra. But that is not the way the court proceeded. Instead of considering evidence of appellant’s conduct after the six-month period, and finding that in the light of all of the other evidence it was unpersuasive, the court refused to consider the evidence. Cases such as Matter of Adoption of David C. do not sanction such refusal. In that case, it appeared that the father had had almost no contact with his son from December 1965 to May 1973. He was permitted, however, to testify to later contacts, between May 1973 and the adoption hearing in November 1974 (two visits, two telephone calls, six letters, and Christmas and birthday cards). The Supreme Court did not say that the trial court should have done what the trial court did here: not have received evidence of later contacts. Rather, the Court held that when all of the evidence was considered, it was “clear that for approximately seven and one-half years, [the father] manifested no genuine interest in his son and no concern for his care or well-being.” Id. 479 Pa. at 12, 387 A.2d at 809. The Court characterized the evidence of the father’s later contacts with his son as “definitely ... insufficient” to overcome, or undo, the evidence of “the prior seven and one-half years of neglect.” Id., 479 Pa. at 16, 387 A.2d at 811. It therefore held that the trial court had erred in holding that the adopting parent had failed to prove the father’s settled purpose of relinquishing his parental rights. Id., 479 Pa. at 17, 387 A.2d at 812.

One further comment is perhaps necessary to avoid misunderstanding of the order we enter. Our reversal is based entirely on procedural considerations, specifically, the application by the trial court of the preponderance of evidence standard of proof instead of the clear and convincing evidence standard and the court’s exclusion of evidence of appellant’s contacts with her children after the six-month period. We have not reached the merits, and therefore in remanding we intimate no opinion regarding what order the trial court should enter after, upon further hearing, it has permitted all parties to supplement the record already made, and has examined that record in light of the clear and convincing evidence standard.

Reversed and remanded for further proceedings consistent with this opinion.


author: MONTEMURO, Judge:

text:
    467 A.2d 833
    Anthony ANTONACE, Administrator of the Estate of Richard Allen Antonace, Deceased v. FERRI CONTRACTING COMPANY, INC. and Joseph A. Micale. Appeal of FERRI CONTRACTING COMPANY, INC.
    Superior Court of Pennsylvania.
    Argued April 28, 1982.
    Filed Oct. 28, 1983.
    Petition for Allowance of Appeal Denied Feb. 9, 1984.

      David B. Fawcett, Jr., Pittsburgh, for appellant.
    William S. Schweers, Jr., Pittsburgh, for Antonace, appel-lee.
    David Harry Patterson, Pittsburgh, for Micale, appellee.
    Before CERCONE, President Judge, and BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an action in trespass commenced under the Wrongful Death and Survival Acts, 42 Pa.C.S.A. §§ 8301, 8302. Appellee, Antonace, is seeking damages for the death of his minor son, Richard, age 16, who died September 16, 1979 as a result of injuries he sustained the previous day.

On September 15, 1979, at approximately 5:00 P.M., the decedent was operating a dirt bike on property owned by appellee, Joseph A. Micale, but leased to appellant, Ferri Contracting, Inc. It was the decedent’s intention to visit a friend, Gerry Penk, whose residence was located adjacent to the property occupied by appellant. The decedent entered the property at the south or rear end and travelled a short distance before his dirt bike collided with a one and one-half inch steel cable which had been strung across a roadway on the property by appellant. The cable flew up and struck the decedent on the neck. This injury ultimately proved fatal as the decedent died the following day.

On March 24, 1981, this case was tried by a jury before the Honorable Stephen A. Zappala of the Court of Common Pleas, Allegheny County. After the close of appellee Anto-nace’s case, the trial court granted a compulsory non-suit in favor of appellee, Micale. On March 26, 1981, the jury returned a verdict, on special interrogatories, in favor of appellee Antonace. Motions for judgment n.o.v. and a new trial were dismissed.

On appeal, appellant, Ferri, seeks a judgment n.o.v., or in the alternative, a new trial.

Motion for Judgment n.o.v.

Initially, appellant urges the court to hold that the trial court erred in denying its motion for judgment n.o.v.

In reviewing a trial court’s denial of a motion for judgment n.o.v., we must view the evidence and all reasonable inferences from it in a light most favorable to the verdict winner. Skoda v. West Penn Power Company, 411 Pa. 323, 191 A.2d 822 (1963); Hargrove v. Frommeyer and Company, 229 Pa.Super. 298, 323 A.2d 300 (1974).

Here, the trial judge determined that appellee’s decedent was a trespasser, and neither party is disputing his status under the common law. Under current law, the duty owed to a trespasser by a landowner or occupier is to refrain from willful or wanton misconduct. Engel v. Friend’s Hospital, 439 Pa. 559, 266 A.2d 685 (1970); Evans v. Philadelphia Transportation Company, 418 Pa. 567, 212 A.2d 440 (1965).

Definitions of the terms willful and wanton were set forth at length in Evans, supra:

... Correctly speaking, wilful misconduct means that the actor desired to bring about the result that followed, or at least that he was aware that it was substantially certain to ensue. This, of course, would necessarily entail actual prior knowledge of the trespasser’s peril. Wanton misconduct, on the other hand, “means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences * * *.” Prosser, Torts § 33 at 151 (2d ed. 1955).

Regarding “knowledge”, the court continued, saying:

Other decisions of this Court have recognized that actual prior knowledge of the injured person’s peril need not be affirmatively established to constitute wanton misconduct. These cases, as well as the Restatement of Torts, clearly indicate that if the actor realizes or at least has knowledge of sufficient facts to cause a reasonable man to realize the existing peril for a sufficient period of time beforehand to give him a reasonable opportunity to take means to avoid the accident, then he is guilty of wanton misconduct if he recklessly disregards the existing danger.

Evans, supra, 418 Pa. at 573-574, 212 A.2d at 443-444.

A review of the evidence reveals the following relevant facts.

Appellee, Micale, had leased the property in question to appellant, Ferri, early in 1978. The lease was an oral month to month lease which was to continue until a sewer project contracted by appellant was completed. The purpose for which appellant leased the ten acre property was the storage of material and equipment to be used on the sewer project.

Almost immediately after taking possession of the property, appellant began experiencing problems with vandalism. In an attempt to remedy this problem, appellant installed a house trailer on the property and had one of his employees live there. In addition, appellant strung the steel cable, which ultimately injured the decedent, across one of the three dirt roadways which were located on the property. The cable was left down during normal business hours but was put up on evenings and weekends.

The cable was a dark rust color, was strung horizontally across the road surface, and was approximately 27-30 inches off the ground. The roadway in question was about 250-300 yards in length, with trees and underbush on either side. The cable was strung midway along the length of the roadway.

There was testimony that prior to the erection of the cable, boys in the vicinity used the property leased by appellant for dirt bike riding. In fact there was testimony that an employee of the appellant, who lived on the property in the house trailer, had invited Gerry Penk and other neighborhood boys to go bike riding on the property with him. Appellant did not dispute , that it knew dirt bikers were using the property; however, its superintendent did state that he had never seen trail bikers on the particular roadway in question. Regarding this particular decedent, there was no evidence which indicates that he had ever been on the property prior to the date of the fatal accident.

There was also testimony, disputed by appellant, that the steel cable would not be visible to a dirt bike rider at distances greater than 100 feet. Appellant’s superintendent, William F. Duchess, testified that it was foreseeable that someone using the road would not see the cable unless it were somehow marked. Duchess admitted on cross examination that the cable posed a danger and that orange ribbons should have been put on to make it safer. In fact Duchess admitted that he had tied ribbons on the cable at some point but that they had been torn off. Adding to evidence of difficult visibility, appellee Micale testified that when he had been in possession of the property he had placed a gate at the same point that the cable was located, and that he had painted it yellow so that it could be seen.

Local police Officers Simonetti and Chearno testified that on dozens of occasions they had been on the property and had not seen the cable. In addition to patroling the property in his capacity as a police officer, Officer Simonetti had on several occasions been hired by appellant as a private security guard, and was characterized by appellant’s superintendent as being “very familiar with the property.” (R. 323a). The testimony of Officers Simonetti and Chearno also indicated that during the time appellant was in possession of the property, there were never any “no trespassing signs” or other warning signs posted. This testimony was corroborated by Gerry Penk, a friend of the decedent, who stated that he too had never seen any warning signs on the property. Appellant’s witnesses explained this by saying that they had posted signs but that they had been torn down by vandals.

Specifically, in regard to the “knowledge” requirement for a finding of liability, appellant argues that there is no evidence which indicates that the decedent had been on the property prior to the date of the fatal accident, even if other dirt bike riders had been, and that, therefore, it did not have the requisite notice. However, as the definition quoted earlier indicates, actual knowledge is not required for a finding of wantonness. Evans, supra. See also, Fugagli v. Camasi, 426 Pa. 1, 229 A.2d 735 (1967).

In the case of Franc v. Pennsylvania Railroad, 424 Pa. 99, 225 A.2d 528 (1967) (per Musmanno, J., with four Justices concurring and two dissenting), Justice Musmanno reasoned that since railroad employees walked across a bridge that the plaintiff had fallen off of, it was for the jury to determine whether the railroad “if it did not have actual notice, had constructive notice of the hiatus in the walking surface of the span.” Franc, supra, 424 Pa. at 102, 225 A.2d at 529.

Here similarly it can be said that since appellant’s employees were frequently on the property, and in fact one lived there, it was for the jury to determine whether it had constructive notice that the decedent was using the property for dirt bike riding.

Additionally, appellant argues that where one thinks of conscious indifference to the safety of others, one thinks of the spring gun cases where homeowners maimed trespassers, or cases where a property owner strung a very thin, electrically charged wire on his land and camouflaged it so as not to be easily detected by trespassers. While it is perhaps true that these are the classic hornbook examples, appellant sets forth no case law, and we are able to find none, which limits a finding of willful or wanton misconduct to the examples given.

Applying the principles from the foregoing authorities to the case sub judice, it is clear that a jury could conclude that appellant knew that dirt bike riders such as the decedent were using the property, and that in view of this knowledge, erection or maintenance of a steel cable, in a position of limited visibility, without markings or warning signs, constituted, “an act of unreasonable character, in disregard of a risk known to him or so obvious that he must have been aware of it, and so great as to make it highly probable that harm would follow.” Prosser, Torts § 33 at 151 (2nd ed 155), quoted with approval in Evans, supra, 418 Pa. at 574, 212 A.2d at 443.

The motion for judgment n.o.v. was therefore properly denied.

MOTION FOR A NEW TRIAL

Appellant claims several bases of error in support of its motion for a new trial. The first of these alleged errors concerns jury instructions; argument on this issue is broken into two subparts.

Appellant first attacks the trial court’s definition of a landowner’s or occupier’s duty toward a trespasser. The specific portion of the charge excepted to is set forth below:

Now, once a person is designated as a trespasser, what then is the legal responsibility of the owner or occupier of land. Now, although the owner or occupier is not under any affirmative duty to use due care to discover the presence of the/a trespasser, once such presence is ascertained, the owner or occupier is then chargable with reckless and willful conduct if he fails to use reasonable care to avoid the injury to the trespasser. (R. 402a-403a)

As appellant is swift to point out, language very similar to this was disapproved of by our Supreme Court in Evans, supra. See language quoted in Justice Musmanno’s dissent, supra 418 Pa. at 586, 212 A.2d at 449. In response, appellee notes that the definition the trial court used is very-similar to that set forth in Frederick v. Philadelphia Rapid Transit Company, 337 Pa. 136, 10 A.2d 576 (1940), also an opinion of our Supreme Court. To the extent that there is any inconsistency, we feel bound to follow the holding in Evans, as it is the more recent of the two cases.

This, however, does not end the matter. It is well settled that a charge must be looked to in its entirety in questioning its accuracy. Slavish v. Ratajczak, 277 Pa.Super. 272, 419 A.2d 767 (1980); Albert v. Alter, 252 Pa.Super. 203, 381 A.2d 459 (1977).

After giving the definition set forth above, the trial court continued saying:

Now, it has been stated that reckless and willful misconduct means that there was an intentional act done of an unreasonable character and disregard of a risk known or done so obviously that the actor must be taken to have been aware of what it did or will do and to such an extent as to make the act highly probable that harm would follow.
In other words, or hopefully more simply stated, it is a realization by the Defendant, in this case the owner-occupier of land, or at least what would cause the realization to a reasonable man or the probability or injury to another and by a reckless disregard nevertheless of the consequences still performs the act itself. Now, that is what the law instructs you as to responsibilities of the owners and occupiers of property. (R. 403a-404a)

Such language closely resembles that used by our Supreme Court in Evans, supra, in defining willful or wanton misconduct. This language was quoted at length in our discussion of appellant’s request for a judgment n.o.v. Arguably, the addition of these two qualifying paragraphs would save the charge from any finding of error that might be indicated under Evans, supra. We need not squarely decide this question, however, in view of appellant’s second objection to the jury instruction which we feel is dispositive.

Appellant’s second objection concerns several related instances where the trial court spoke in terms of ordinary negligence as opposed to willful or wanton misconduct. Although the trial court did define willful or wanton misconduct at the outset of its charge, as the above quoted portions of the charge indicate, it thereafter spoke solely in terms of negligence when discussing liability. After defining negligence, the trial court instructed the jury as follows:

Now, again for the plaintiff to recover, he must prove, one, that there was negligence, as we have defined to you, and two, that the negligence was a substantial factor in bringing about the harm or damage. (R. 405a)

The trial court then went on to define contributory negligence, and to instruct the jury that they must determine whether the decedent here was contributorily negligent. The jury was instructed that “if you answer that in' the affirmative, you will then apply the law of what we call comparative negligence, which the court will give you at a later part of this charge.” (R. 407a) As promised, the trial court later defined comparative negligence, substantially as set forth at 42 Pa.C.S.A. § 7102(a).

Just prior to dismissing the jury for deliberation, the trial court described the possible verdicts which it could reach. All six described spoke solely in terms of negligence. (R. 445a-447a) Nowhere was willful or wanton misconduct mentioned.

A verdict form with special interrogatories was used. All questions spoke in terms of negligence. Once again, there was no mention of willful or wanton misconduct.

This is error. Our Supreme Court in Evans, supra, specifically stated that, “Manifestly, negligence is not at issue in this case, involving the duty owed to a ‘trespasser’ ”. Evans, supra, 418 Pa. at 579, 212 A.2d at 446. Pennsylvania courts have held in the past that there is a difference not only in degree, but also in kind, between wanton misconduct and simple negligence—however gross. Geelen v. Pennsylvania Railroad Company, 400 Pa. 240, 161 A.2d 595 (1960); Kasanovich v. George, 348 Pa. 199, 34 A.2d 523 (1943).

It is abundantly clear that essentially what the trial court did here was to submit this case to the jury as a negligence case. This is improper under the current law and we must therefore order a new trial.

Having so held, we nevertheless feel that the factual circumstances presented in this case beseech us to make a few comments indicating a certain dissatisfaction with the doctrine of landowner’s immunity.

Such doctrine recognizes a difference in the duty owed to an individual who enters onto another’s property based on the common law status distinctions of invitee, licensee, and trespasser. Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978); Davies v. McDowell National Bank, 407 Pa. 209, 180 A.2d 21 (1962). As our holding and discussion demonstrate, such designation was ultimately determinative of the duty owed by appellant in the case sub judice. This is in keeping with the majority of jurisdictions, which have adhered to the notion of landowner’s immunity since the doctrine was judicially introduced into this country in the nineteenth century. Sweeney v. Old Colony and Newport Railroad, 92 Mass. 368 (1865); 32 ALR 3d, 508-530.

We note at this point a significant, albeit minority, trend toward abolishing the common-law categories, and substituting instead a single standard of reasonable care under the circumstances.

Ironically, among the first jurisdictions to depart from rigid application of the three common-law categories was the jurisdiction of their birth. In 1957, Great Britian’s Parliament enacted a statute abolishing the distinctions between licensees and invitees. Occupier’s Liability Act, 5 and 6 Eliz. 2, Ch. 31 (1957). Dissatisfaction with the arbitrary nature of the common-law categories had caused one British jurist to make the following remarks in an often quoted passage.

A canvasser who comes on your premises without your consent is a trespasser. Once he has your consent, he is a licensee. Not until you do business with him is he an invitee. Even when you have done business with him, it seems rather strange that your duty towards him should be different when he come up to your door from what it is when he goes away. Does he change his colour in the middle of the conversation? What is the position when you discuss business with him and it comes to nothing? No confident answer can be given to these questions.

Lord Justice Denning in Dunster v. Abbott, 2 All E.R. 1572, 1574 (C.A.1953).

A few years later the United States Supreme Court declined to adopt the common law distinctions for admiralty proceedings, saying:

The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land * * * which traced many of its standards to a heritage of feudalism. In an effort to do justice in an industrial urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifica-tions among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassification bred by common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, toward “imposing on owners and occupiers a single duty of reasonable care in all the circumstances”.

Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630-31, 79 S.Ct. 406, 410, 3 L.Ed.2d 550, 554-55 (1959).

Among the States, California was the forerunner, totally abandoning the traditional classifications in the landmark case of Rowland, v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968). After stating the policy that, “a man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose”, California decided to abandon the common law rule with its exceptions and fictions in favor of a simple and uniform test of reasonable care under the circumstances. Rowland, supra at 118, 70 Cal.Rptr. at 104, 443 P.2d at 568.

In recent years, many jurisdictions have followed California’s example, among them: New York, Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794 (1976); Rhode Island, Mariorenzi v. DiPonte, 114 R.I. 294, 333 A.2d 127 (1975); the District of Columbia, Smith v. Arbaugh’s Restaurant, Inc., 152 U.S.App.D.C. 86, 469 F.2d 97 (1972); Colorado, Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971); and Hawaii, Pickard v. City and County of Honolulu, 51 Hawaii 134, 452 P.2d 445 (1969).

Under such a test as that which was adopted in Rowland, foreseeability of course become the salient inquiry. As a general proposition, evidence of an entrant’s status under the common-law categories may have some relationship to the question of whether his presence was reasonably anticipated. We note however, as the court in Rowland did, that while it would seem that foreseeability of harm to one entering the land for a business purpose—a traditional invitee—would be greater than to a trespasser, in a particular case the opposite may be true.

We feel that what we have here is such a case. For example, a truck driver making deliveries to appellant’s property would likely enter the property during regular business hours when the cable was detached. Even if it had been mistakenly left up, the driver would be protected from bodily injury by his truck. On the other hand a local dirt bike ride, of which appellant knew there were many, who for example entered the property on a weekend, would be met by the presence of a steel cable and would not have the benefit of a large vehicle with which to protect himself from injury.

We sympathize with the frustration of the court in Gould v. DeBeve, 117 U.S.App.D.C. 360, 330 F.2d 826 (1964), involving a case where a two and one-half year old boy, deemed under a lease term to be a trespasser, was injured in a fall at his mother’s friend’s apartment. There the court questioned the justification for affording the same degree of care to the plaintiff therein as was afforded, “the poacher upon the manorial estate of 18th Century England ...” Gould, supra 330 F.2d at 829.

Our holding today reflects a recognition of the fact that we, as an intermediate appellate court are “not free ... to overrule the decisional law enunciated by the Supreme Court of Pennsylvania.” Hillbrook Apartments, Inc. v. Nyce Crete Co., 237 Pa.Super. 565, 573, 352 A.2d 148, 152 (1975). Nevertheless, we may suggest that this is an appropriate juncture at which to reevaluate the viability of the doctrine of landowner’s immunity in the Commonwealth.

As we have determined that a new trial is required, we need not address appellant’s other alleged bases of error beyond stating that we find its arguments in regard to these generally lacking in merit.

Judgment reversed and a new trial ordered.

BECK, J., concurred in the result.

      . The Honorable Stephen A. Zappala is now a Justice of the Supreme Court of Pennsylvania.

      . As the California Supreme Court in Rowland notes, the rigid distinctions had previously been rejected by some court in limited situations.
      (E.g., Gould v. DeBeve (D.C.Cir.) 330 F.2d 826, 829-830 [117 U.S. App.D.C. 360]; Anderson v. Anderson, supra, 251 Cal.App.2d 409, 413 [59 Cal.Rptr. 342]; Taylor v. New Jersey Highway Authority, 22 N.J. 454 [126 A.2d 313, 317, 62 A.L.R.2d 1211]; Scheibel v. Lipton, 156 Ohio St. 308 [102 N.E.2d 453, 462-463]; Potts v. Amis, 62 Wash.2d 777 [384 P.2d 825, 830-831]; see Comment (1957) 22 Mo.L.Rev. 186; Note (1958) 12 Rugers L.Rev. 599).

        Rowland, supra, 69 Cal.2d at 118, 70 Cal.Rptr. at 104, 443 P.2d at 568.

      . No doubt with Rowland and its progeny as a stimulus, several states have reassessed the viability of the common-law categories and have abolished the distinction between invitee and licensee but have retained the separate class of trespasser. This has been the approach taken by several jurisdictions, including: Maine, Poulin v. Colby College, 402 A.2d 846 (Me., 1979); Minnesota, Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972); and North Dakota, O’Leary v. Coenen, 251 N.W.2d 746 (N.D., 1977)

      . This is particularly so in light of Pennsylvania’s adoption of comparative negligence, 42 Pa.C.S.A. § 7102. For a general discussion of the potential impact of comparative negligence on the doctrine of willful and wanton misconduct, see Timby and Plevyak, The Effect of Penn

        sylvania’s Comparative Negligence Statute on Traditional Tort Concepts and Doctrines, 24 Villanova L.Rev. 453 (1979).