author: PER CURIAM:

text:
    452 A.2d 1066
    COMMONWEALTH of Pennsylvania v. Gary MARTIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 7, 1981.
    Filed Nov. 19, 1982.

      Jeffrey M. Voluck, Philadelphia, for appellant.
    Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

Appellant was tried before Judge Prattis, non-jury, on charges of burglary, indecent assault, simple assault, attempted rape, and unlawful restraint. The Judge sustained a demurrer to the burglary charge and found appellant guilty on the other four charges. Motions for a new trial and in arrest of judgment were denied. On October 14, 1977, the court imposed a sentence of one (1) to three (3) years imprisonment for attempted rape. Sentence was suspended on the remaining charges. On November 14, 1977, appellant filed a notice of appeal to this court. On the same day a petition for reconsideration of sentence was filed. On November 30, 1977, the court vacated the original sentence and sentenced appellant to eleven and one-half (IIV2) to twenty-three months allowing appellant to enter a work release program.

Appellant raises numerous issues on this appeal. We will address them in the order of their presentation in his brief. Additionally, the Commonwealth has raised an additional contention which we will address in part B of this Opinion. But first, a brief summary of the alleged criminal incident will prove to be helpful. At about 3:15, or 3:30 A.M., the victim was accosted in the hallway of her apartment building, by a black male. The man grabbed the victim, threatened to kill her, and declared his intentions to have sexual intercourse with her. The assailant dragged her toward a laundry room. The victim faked an asthma attack and when her wheezing kept getting louder and louder the actor desisted and left.

A.

I. WAS APPELLANT DENIED A FAIR TRIAL WHEN THE TRIAL JUDGE FAILED TO RECUSE HIMSELF DESPITE HEARING HIGHLY PREJUDICIAL EVIDENCE DURING SUPPRESSION HEARING?

Trial counsel motioned to suppress certain identification testimony. At the scheduled time, immediately preceding the trial, a police officer necessary for the hearing on the motion to suppress was unavailable. With an understanding that the motion to suppress would be heard during the course of the trial, the Commonwealth proceeded to put in its case-in-chief before the court sitting as fact-finder. As part of her testimony, the victim testified as to having identified the appellant in a photographic array and at a line-up. She indicated that a police artist had composed a drawing based on the victim’s description; the sketch was introduced into evidence. In open court the victim identified appellant as her assailant. At the conclusion of the Commonwealth’s case the needed police officer was still unavailable to testify as to the pre-trial identification. Judge Prattis therefore granted the motion to suppress the testimony regarding the photographic array and lineup, but ruled that the in-court identification was based on “ample opportunity to observe her assailant” and therefore held it to be admissible. (N.T. 69-70).

Defense counsel made no motion to the court, requesting it recuse itself. Counsel’s demurrer to the charge of burglary was granted, and defense testimony was heard. Appellant now contends that since the trial judge had heard identification testimony which was later determined to be inadmissible the judge should have recused himself.

The trial court after finding that the victim had ample opportunity to observe her assailant indicated that his finding was not tainted by the “out of court” identifications. (N.T. p. 70). Our Supreme Court reconfirmed in Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623 (1980) that the burden to show bias and prejudice is on the party seeking recusal. Our courts have “adhered to the prevailing view that judicial fact-finders are capable of disregarding most prejudicial evidence.” Id. 491 Pa. at 439, 421 A.2d 623. In Council, as in the current case the trial court expressly noted that it was not swayed by the questioned inadmissible evidence. There, as here the challenging party has failed to sustain its burden of demonstrating prejudice.

II. WAS APPELLANT DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO REQUEST THE JUDGE TO RECUSE HIMSELF?

As the trial judge indicated that he was not swayed by the tainted identification testimony, we may assume the court would have denied any motion for recusal. As discussed above, we would have found no error in the court’s refusal to recuse itself. Hence, such a request would not have presented the court with an issue of arguable merit; therefore counsel cannot be held ineffective. See, Commonwealth v. Hooks, 483 Pa. 40, 51, 394 A.2d 528, 534 (1978); and Commonwealth v. Harmes, 255 Pa.Superior Ct. 147, 156, 386 A.2d 551, 555 (1978).

III. WAS APPELLANT DENIED A FAIR TRIAL WHEN THE COURT PERMITTED THE COMPLAINANT TO MAKE AN IN-COURT IDENTIFICATION OF THE ACCUSED DESPITE TWO PREVIOUSLY TAINTED OUT OF COURT IDENTIFICATIONS?

The victim testified that the incident lasted about five minutes; that she viewed the appellant’s face for a minute (N.T. 17, 20-21); and that the hallway was adequately lighted. (N.T. 18-19, 23, 52). Her identification rested on viewing the defendant at close range resulting in her recognition of his facial features. (N.T. 67) Her identification was unequivocal. We find that the above establishes an independent basis for the in-court identification- of appellant. Compare, Commonwealth v. Williams, 274 Pa.Superior Ct. 464, 418 A.2d 499 (1980); and Commonwealth v. Farrell, 265 Pa.Superior Ct. 41, 401 A.2d 790 (1979).

IV. WAS APPELLANT DENIED A FAIR TRIAL WHEN THE PROSECUTOR REFERRED TO THE DEFENDANT’S TESTIMONY AS DECEPTIVE AND THEREBY CREATED A HIGHLY PREJUDICIAL ATTITUDE AGAINST HIM?

The offense in this case was committed at 3901 Conshohocken Avenue, Philadelphia. At the beginning of cross-examination appellant stated that he knew that address only “vaguely, not exactly,” (N.T. pp. 81-82) although arrested at that address some three weeks after the incident. When cross-examined about details relating to the buildings at 3901 Conshohocken Avenue, particularly Building No. 9, appellant responded for the most part that he had “no idea.” (N.T. pp. 92-93) The following exchange then occurred,

PROSECUTOR: Q. Did you make a mistake when you said you didn’t know when I first asked you, did you say you didn’t know where 3901 was because you had forgotten, or were you just trying to deceive this Court?
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
APPELLANT: No, I wasn’t trying to deceive the Court, I was just—
PROSECUTOR: Q. Just trying to deceive me?
A. No. (N.T. pp. 93-94)

Appellant now contends that the prosecution’s characterization of appellant’s testimony as “deceptive is highly improper and prejudicial constituting grounds for a mistrial.”

In Commonwealth v. Perkins, 473 Pa. 116, 133, 139, 373 A.2d 1076 (1977), after recognizing the general principle that “the expression of personal opinion or belief on issues which are within the province of the jury has no place in the argument of a district attorney to the jury”, Chief Justice Eagen noted that not every “intemperate and improper remark” in the course of the prosecution will necessitate a new trial. “The language must be such that its ‘ “unavoidable effect, would be to prejudice the [fact finder] ....’” (Citations deleted)

It is axiomatic that a prosecuting attorney should not express his or her sentiments as to a defendant’s veracity. Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971) Commonwealth v. Valle, 240 Pa.Superior Ct. 411, 362 A.2d 1021 (1976). However, a reviewing court must consider an allegedly improper comment in light of the context in which it occurred and its possible effect on the fact-finder.

In the current appeal the challenged comments were isolated remarks, not representative of the whole trial. Compare, Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975); and Commonwealth v. Baranyai, 296 Pa.Superior Ct. 342, 442 A.2d 800 (1982). Such comment arose as a result of the prosecutor’s frustrated attempts to get appellant to admit to some degree of familiarity with the scene, where appellant admittedly was arrested. But more important we must observe that here the fact finder was the trial judge, who is assumed to be able to absolve his decision of any improper influence. (See Issue No. 1). In these circumstances, while we do not condone the direction that cross-examination assumed, we cannot find the comment so improper as to require relief. See Commonwealth v. Baynes, 269 Pa.Superior Ct. 563, 410 A.2d 845 (1979).

V. WAS APPELLANT DENIED EFFECTIVE ASSISTANCE WHEN TRIAL COUNSEL AND ALL SUBSEQUENT COUNSEL FAILED TO INCLUDE THE ISSUE OF PREJUDICIAL PROSECUTORIAL MISCONDUCT IN POST VERDICT MOTIONS?

As we find this issue was without arguable merit, we cannot find counsel was ineffective. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

VI. WAS APPELLANT DENIED HIS RIGHT TO ANY MEANINGFUL APPELLATE REVIEW WHEN CLOSING ARGUMENTS WERE NOT RECORDED AND WAS DENIED EFFECTIVE ASSISTANCE WHEN TRIAL COUNSEL FAILED TO REQUEST THAT CLOSING ARGUMENTS BE RECORDED?

Our Supreme Court has not clearly defined the right to have closing argument transcribed. In Commonwealth v. Silvis, 445 Pa. 235, 238, 284 A.2d 740, 741 (1971), the then “present majority” of the court found that “[w]hile it may be preferable to record opening and closing addresses to the jury, we do not believe that due process demands a recordation.” More recently in Commonwealth v. Shields, 477 Pa. 105, 383 A.2d 844 (1978) the court encroached upon Silvis but without either referring to or distinguishing Silvis. In Shields, the trial judge had ordered that all notes be transcribed. Defense counsel asserted that the Commonwealth’s closing contained prejudicial remarks and that he had made timely objections thereto. Counsel reserved the right to file additional post-verdict motions upon receipt of the transcript. When the summation was not transcribed, counsel preserved his right to challenge such. As the notes of the summation were lost prior to being transcribed, the Supreme Court found it necessary to award a new trial.

However, we find it unnecessary to resolve the discrepancy between Silvis and Shields. In the current appeal appellant overlooks a very crucial distinction: it was a non-jury trial; Silvis and Shields were jury trials. As held previously, a judge sitting as a fact finder, unlike twelve members of the community, is assumed to disregard any improper evidence or comment. Commonwealth v. Council, supra. Therefore, the absence of the transcript of closing argument does not necessitate a new trial.

VII. APPELLANT WAS CONVICTED OF ATTEMPTED RAPE; WAS THIS CONVICTION CONTRARY TO THE LAW?

Appellant’s contention on this issue is twofold. First, he contends that he did not commit any act which was a substantial step towards the commission of a rape. Second, he argues that the complainant’s testimony demonstrated that he voluntarily renounced any intent to commit rape.

The Crimes Code, 18 Pa.C.S. § 901(a) defines attempt as follows:

“A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” See, Commonwealth v. Gilliam, 273 Pa.Superior Ct. 586, 417 A.2d 1203 (1980). Rape, for purposes of this case, may be defined as engaging in sexual intercourse with another, not one’s spouse, by forcible compulsion or threat thereof. 18 Pa.C.S. 3121(1) and (2).

Here the victim was grabbed and dragged involuntarily; appellant threatened to kill her; and he expressed his intention to have sex with her. Such clearly amounts to a substantial step in effectuating an intended rape. We hold that the fact finder could properly find appellant guilty of attempted rape; the conviction is not contrary to the law.

Section 901(c), of the Crimes Code provides for a defense of renunciation to a charge of criminal attempt. Appellant interprets the complainant’s testimony as indicating that he voluntarily released her and walked away, and did not do such as a result of an apprehension of detection or because the act was rendered more difficult. We disagree. The victim was released only after she pretended an asthma attack and then only after the wheezing grew louder after being directed to stop it. While the current case may not be as clear a case as Commonwealth v. Herman, 271 Pa.Superior Ct. 145, 152 n. 7, 412 A.2d 617, 620 n. 7 (1979) (burglary attempt abandoned when actor heard voices or found entry more difficult); or Commonwealth v. Howard, 248 Pa. Superior Ct. 246, 375 A.2d 79 (1977) (escape abandoned when discovered by guards), we find the fact finder could reasonably infer from the testimony that the attempt was abandoned whether in whole or part, 901(c)(2)(i), out of fear of detection.

VIII. WAS APPELLANT CONVICTED ON INSUFFICIENT EVIDENCE AND DOES THE WEIGHT OF THE EVIDENCE DEMONSTRATES THAT THE APPELLANT WAS NOT GUILTY BEYOND A REASONABLE DOUBT?

In particular appellant argues that the Commonwealth did not show beyond a reasonable doubt that appellant was the assailant; i.e., the victim only briefly observed her attacker’s face in poor lighting and appellant’s alibi witnesses remained unshaken.

As noted in part 3 of this opinion the witness’s identification was unequivocal, and unshaken based on two, 30 second observations. Contrary to appellant’s assertion, she viewed appellant in good lighting at which time she noted particularly appellant’s facial features. In view of the above, we find the identification testimony was sufficient beyond a reasonable doubt to show appellant was the assailant. Compare, Commonwealth v. Story, 270 Pa.Superior Ct. 66, 410 A.2d 1251 (1979) (opinion for affirmance) (witness viewed defendant’s face for 15-20 seconds); and Commonwealth v. Golson, 263 Pa.Superior Ct. 143, 397 A.2d 441 (1979) (witness confronted by actor for half a minute), despite the production of alibi witnesses. See Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521 (1979).

B.

Finally, the Commonwealth raises the issue of whether the Court of Common Pleas had jurisdiction on November 30, 1977 to grant the petition for modification of sentence. (Commonwealth’s brief, p. 2, n. 1). Under prior law, then in effect, a sentencing court could modify a previously imposed sentence only within the same term of court as that in which the sentence was originally imposed or within thirty (30) days if the term expired less than thirty (30) days from the date of sentencing. 12 P.S. § 1032 (repeal effective June 27, 1978); see Commonwealth v. Yoder, 249 Pa.Superior Ct. 389, 378 A.2d 350 (1977). Appellee argues that not only was the modification beyond the permissible thirty (30) day period but also that appellant had not filed his petition within ten (10) days of imposition of sentence as mandated by Rule 1410, Pa.R.Crim.P. However, Rule 1410 did not take effect until July 1,1978, sometime subsequent to the dates at hand. Therefore we cannot hold appellant’s petition was untimely.

A somewhat analogous situation surfaced in Commonwealth v. Pinkney, 267 Pa.Superior Ct. 288, 406 A.2d 1045 (1979). There the Commonwealth did not object to the delayed modification, here the record is incomplete as the hearing was apparently not transcribed. However, the lack of such record in this respect does not inhibit our review. If the crucial date was beyond and outside the term of court containing October 14, 1977, then the court was without jurisdiction to act, regardless of whether or not the Commonwealth complained. Id. Whether the two dates in question fell in the same term of court cannot be determined from the current state of the record. A remand is necessary for the sole purpose of conducting an evidentiary hearing to determine if November 30, 1977, was within or without the term of the lower court which rendered the October 14,1977 judgment of sentence. If both dates were in the same term of court, then the modified sentence is affirmed. If it is determined that November 30,1977 was past the term of the original sentence, then the modified sentence is vacated and the original sentence of October 14, 1977 is reinstated.

Remand for proceedings not inconsistent with this Opinion. We do not retain jurisdiction.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    452 A.2d 1072
    COMMONWEALTH of Pennsylvania v. Gary Lee MILLIGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 14, 1981.
    Filed Nov. 30, 1982.

      Gary Lee Milligan, Graterford, appellant, in pro. per.
    George Yatron, District Attorney, Reading, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

Appellant was convicted by a jury of aggravated assault, theft, robbery, burglary, recklessly endangering another person and conspiracy on June 12, 1980. Post-verdict motions were filed and dismissed on November 7, 1980 because Appellant had escaped from prison and was at large on that date. After Appellant’s apprehension, he was sentenced on January 6, 1981.

Appellant filed a pro se direct appeal to this court which included Appellant’s Motion to File Post-Verdict Motions to Arrest Judgment and New Trial Nunc Pro Tunc. The special district attorney assigned to this prosecution filed a Petition to File Brief Nunc Pro Tunc, which Petition was granted by this court on July 28,1982. Appellant then filed a pro se Petition for Appointment of Counsel for Appeal Nunc Pro Tunc and the Commonwealth filed an Answer thereto. Subsequently, the Commonwealth filed its Brief for Appellee.

We agree with the propriety of the dismissal of Appellant’s post-verdict motions on the instant facts. However, we believe that justice would be served by exercising our discretion to permit Appellant to refile post-verdict motions nunc pro tunc. See Commonwealth v. Borden, 256 Pa.Super. 125, 389 A.2d 633 (1978). The Commonwealth’s Brief indicates its approval of this result.

Also, as Appellant has requested appointment of counsel by his Petition referred to previously, we shall remand this case to the trial court for the appointment of a member of the Berks County Public Defender’s Office to assist Appellant in this case.

Appellant’s request to file post-verdict motions nunc pro tunc is granted and the case is remanded to the trial court. The trial court shall appoint counsel from the Berks County Public Defender’s Office to assist Appellant in this case. Jurisdiction is not retained by this court.


author: WICKERSHAM, Judge:

text:
    452 A.2d 1349
    Lillian HOFFMAN, Ind. and as Administratrix of the Estate of Jules Hoffman and Robert Hoffman and Steven Hoffman and Richard Hoffman v. LOOS & DILWORTH, INC., Plymouth Hardware and Home Decorating Center, Inc., American Olean Tile Company, Hardware Supply Company, Gardner Brothers, Inc., Honeymead Products Company, C.J. Osborn Chemicals, E.W. Kaufmann Company, Joseph J. Zummo Hardware Company, American Hardware Supply Company, Parks Corporation, Nelson Supply Company, and Webb-Craft Tile Company. Appeal of HONEYMEAD PRODUCTS, INC. Appeal of LOOS & DILWORTH, INC.
    Superior Court of Pennsylvania.
    Argued April 23, 1982.
    Filed Oct. 15, 1982.
    Reargument Denied Dec. 28, 1982.

      William H. Bradbury, Norristown, for appellants.
    Charles W. Craven, Philadelphia, for appellees.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   WICKERSHAM, Judge:

Lillian Hoffman, individually and as the administratrix of the estate of Jules L. Hoffman, deceased, filed a complaint in trespass against Loos & Dilworth, Inc., Plymouth Hardware & Home Decorating Center, Inc., and American Olean Tile Company, Inc., in November of 1976 alleging, inter alia, on behalf of herself and certain of her children that a fire occurred on November 24, 1975 in her home at Plymouth Meeting, Pennsylvania. As a result of the fire Jules L. Hoffman sustained multiple traumatic injuries resulting in his death and Lillian Hoffman and co-plaintiffs Robert Hoffman, Steven Hoffman and Richard Hoffman also “suffered severe injuries.” It was further alleged that the fire resulted from the ignition of combustible materials

which materials had been in contact with the contents of a container of Superior Brand Boiled Linseed Oil, which product was packaged and distributed by defendant Loos & Dilworth, Inc., sold to plaintiffs decedent by defendant Plymouth Hardware & Home Decorating Center, Inc. and recommended for use to plaintiff’s decedent by defendant American Olean Tile Company, Inc.

Reproduced Record at 7 a.

The facts underlying this appeal are concisely set forth in the opinion, dated August 25, 1981, of the Honorable Richard S. Lowe, President Judge of Montgomery County Court of Common Pleas.

This action arises out of a tragic fire which occurred at plaintiffs’ home on November 24, 1975. Jules L. Hoffman, plaintiff Lillian Hoffman’s husband, died in the blaze. Several other members of the Hoffman family sustained serious injuries while jumping from a second floor window in an attempt to escape the conflagration.
In their Complaint, plaintiffs allege that the fire was caused by the spontaneous combustion of rags which had been used by Jules Hoffman on the night before the fire to apply Superior Brand boiled linseed oil to the kitchen floor of the Hoffman home. They further aver that the product was defective in that it was sold without adequate warning of the possibility of spontaneous combustion.
The record reveals that Superior Brand linseed oil reaches the ultimate consumer through the following chain of distribution. The raw linseed oil is originally manufactured by Honeymead Products Company and transported, in bulk, for storage by C.J. Osborn Company, an eastern distributor. E.W. Kaufmann Company, acting as a sales agent for Honeymead, receives an order for the product from Loos & Dilworth, Inc., and transmits that order to Osborn. Osborn then converts the product, by the addition of a chemical, from raw linseed oil to boiled linseed oil. Thereafter Osborn delivers the boiled linseed oil, in bulk, to Loos & Dilworth, Inc. After receiving the oil from Osborn, Loos & Dilworth, Inc. packages it in individual containers and affixes thereto the Superior Brand label. The oil is then sold to the consumer by a retail supplier.
The original Complaint in Trespass was filed by the plaintiffs against Loos & Dilworth, Inc. on November 23, 1976. On April 28, 1977 Loos & Dilworth, Inc. filed a Complaint seeking contribution and indemnity against additional defendants Honeymead Products Company, C.J. Osborn Chemicals Company, and E.W. Kaufmann Company. On February 12, 1981 E.W. Kaufmann filed a Motion for Summary Judgment, which Motion was granted, after argument and upon consideration of the briefs of counsel, by Order dated April 16,1981. Loos & Dilworth, Inc. and Honeymead have appealed to The Superior Court of Pennsylvánia from the aforesaid Order, thereby necessitating this Opinion.

Lower ct. op. at 1-2.

In its complaint against additional defendant, E-W. Kaufmann Company, defendant Loos & Dilworth, Inc. alleged the following, inter alia:

1. The defendant, Loos & Dilworth is a corporation having a place of business at 61 East Green Lane, Bristol, Pennsylvania, and packages and distributes linseed oil under the brand name of Superior Brand Boiled Linseed Oil.
2. The plaintiffs have commenced the instant action in trespass to recover for personal injuries sustained by them, as well as Wrongful Death and Survival Actions for the death of Jules L. Hoffman, allegedly caused by a fire in their home on November 24, 1975; ....
3. Plaintiffs, in their Complaint, allege that the aforementioned fire resulted from the defective or unreasonably dangerous condition of Superior Brand Boiled Linseed Oil, or as a result of the omission of warnings, cautions and directions concerning the products, and other negligence and carelessness of the defendant Loos and Dilworth, Inc.
4. The defendant, Loos & Dilworth, does not treat, cure, alter or otherwise change the composition of the linseed oil which it receives, it only packages and distributes it under the name ‘Superior Brand’.
5. The defendant, on January 28, 1977, by Writ, joined as additional defendants Honeymead Products Company, C.J. Osborn Chemicals Company and E.W. Kaufmann Company.
23. The additional defendant, E.W. Kaufmann Company, is a corporation with a place of business at 110 Pennsylvania Avenue, Oreland, Pennsylvania.
24. The additional defendant, E.W. Kaufmann Company, is a manufacturer’s representative and is an agent for Honeymead Products Company and accepts orders for boiled linseed oil from defendant, Loos & Dilworth, on behalf of Honeymead and arranges for shipment of the linseed oil by C.J. Osborn Chemicals Company.
25. Defendant, Loos & Dilworth, joins E.W. Kaufmann Company as an additional defendant to protect its rights of contribution and indemnity against Kaufmann.
26. If the defendant, Loos & Dilworth, is found liable to plaintiffs for their damages as alleged in their Complaint, then the additional defendant, E.W. Kaufmann Company, is alone liable to the plaintiffs, liable over to the defendant, Loos & Dilworth, or is jointly and severally liable with the defendant, Loos & Dilworth, on the causes of action set forth by the plaintiffs, in that the additional defendant, E.W. Kaufmann Company:
(a) Sold linseed oil in a defective and unreasonably dangerous condition which subjected the plaintiffs to an unreasonable risk of harm;
(b) Sold linseed oil without advising purchasers and users of the product’s propensity to spontaneously com-bust by itself or when mixed with or applied to certain materials and failed to provide warnings of the same.

Appellant frames the issue presented by the instant appeal in the following manner:

The issue of fact presented by the instant appeal is whether the appellee is in the chain of distribution of the allegedly defective and dangerous linseed oil. If the appellee is found to be in [the] chain of distribution and if it is further found that the linseed oil was defective and dangerous, the appellee is liable for contribution and indemnity under the principle of strict liability as codified by Section 402A of the Restatement (Second) of Torts.

Brief for Appellant at 8-9.

In granting summary disposition of the case in favor of E.W. Kaufmann Company, the lower court held that section 402(A) Restatement (Second) of Torts was inapplicable to finance lessors, i.e., “when the lessor is not marketing or supplying the product, but is merely a financier whose collateral is the product... . ” In holding that E.W. Kaufmann Company was entitled to summary judgment as a matter of law, the lower court concluded that “public policy would not be furthered by imposing strict liability upon E.W. Kaufmann Company.” “Kaufmann as sales agent for the manufacturer Honeymead Products Company, was merely involved in a paper transaction,” the lower court found. “Its role in the distribution of the linseed oil was so limited that the imposition of strict liability would not promote the product’s safety. As between other members of the distributive chain, Kaufmann patently had no duty to warn consumers of the linseed oil’s dangerous propensities.” Lower ct. p. at 6-7.

In Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977), Justice Nix outlined the policy behind a cause of action for strict liability in tort pursuant to section 402(A) of the Restatement (Second) of Torts. He said:

It too easily disregards the policy basis for strict liability which supports application of the rule to any supplier of a product who, because he is in the business of supplying products, assumes a special responsibility toward the consuming public.
In Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453, 150 P.2d 436 (1944), Justice (later Chief Justice) Traynor declared in his landmark concurring opinion:
. . . public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. Id. at 462, 150 P.2d at 440.

By the adoption of Section 402A, that responsibility was placed on those who, through manufacturing and distribution, intend that products “reach the market.” Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 187 n. 2, 242 A.2d 231, 236 n. 2 (1968); Restatement (Second) of Torts § 402A, Comments c and f. While Section 402A speaks only in terms of “sellers”, the foregoing policy statement and accompanying citations demonstrate the propriety of extending its application to anyone “who enters into the business of supplying human beings with products which may endanger the safety of their persons and property, ...” Restatement (Second) of Torts § 402A, Comment f. What is crucial to the rule of strict liability is not the means of marketing but rather the fact of marketing, whether by sale, lease or bailment, for use and consumption by the public. Link v. Sun Oil Co. [160] Ind.App. [310], 312 N.E.2d 126, 130 (1974); Whitfield v. Cooper, 30 Conn.Sup. 47, 298 A.2d 50 (1972); Delaney v. Towmotor Corp., 339 F.2d 4, 6 (2d Cir.1964). Where the fundamental principles are applicable, the imposition of artificial distinctions will only frustrate the intended purpose.

Id., 472 Pa. at 366-67, 372 A.2d at 738-39.

More recently in Nath v. National Equipment Leasing Corp., 497 Pa. 126, 439 A.2d 633 (1982), the issue presented was whether section 402A applied to a lessor under a secured transaction financing device. The court, through Justice Nix, said:

It is clear from Franeioni that there was no intention of extending the coverage of Section 402A to transactions that are designed solely for financing purposes. The factors pertinent to our determination to extend Section 402A coverage to lessors in the business of leasing products to the public were:
(1) In some instances the lessor, like the seller, may be the only member of the marketing chain available to the injured plaintiff for redress; (2) As in the case of the seller, imposition of strict liability upon the lessor serves as an incentive to safety; (3) The lessor will be in a better position than the consumer to prevent the circulation of defective products; and (4) The lessor can distribute the cost of compensating for injuries resulting from defects by charging for it in his business, i.e., by adjustment of the rental terms. 472 Pa. at 368-69, 372 A.2d at 739.
.... Section 402A which provides for a form of strict liability is, of course, not predicated upon “fault” or “negligence.” That which provides the basis for fastening liability upon suppliers of products is that the supplier or manufacturer is the one that has the control over the product and places it within the stream of commerce. The party merely financing the transaction has no control over its manufacture, is not involved in the selection of the product nor in any way makes a representation as to its quality or soundness. Between the financier and the ultimate purchaser, it is usually the latter who selects the goods, negotiates for its purchase and has control over its use.
While it is true that the financing makes the purchase possible, and to that limited extent the financier can be perceived to have participated in the delivery of the product, such a tangential participation in the supplying of the goods does not justify the imposition of strict liability. As noted, the financier is not supplying the chattel but rather is offering the use of money.

Id., 497 Pa. at 131-32,439 A.2d at 635-36.

The question before us is whether E.W. Kaufmann Company’s status as sales agent for Honeymead Products Company, the manufacturer of the boiled linseed oil, is equivalent to the status of National Equipment Leasing Corporation in Nath. In Nath the left hand of the appellant became caught in the gears and blades of a wire and cable stripping machine which did not provide a guard to protect the user’s hands. His employer, Keystone Metals Company, had obtained the machine from the Rigby Manufacturing Company, which made it. Keystone had requested appellee, National Equipment Leasing Corporation to finance the purchase. Appellee, National Equipment Leasing Corporation, borrowed money from the Pittsburgh National Bank in order to provide the funds for Keystone’s purchase of the machine.

In Nath Justice Nix concluded that the participation of National Equipment Leasing Corporation in the chain of events “was tangential.” “Its financing role was not substantial in the creation of an undue risk of harm,” the court held.

This finance lessor was not able to, nor would it have been in a position to, effect or oversee the safety of the product. In terms of the chain of events, National’s relationship to the product was identical with that of PNB. The product was mere collateral. A finance lessor is not in the business of selling or marketing merchandise. A finance lessor is in the business of circulating funds. Such an activity cannot possibly produce reasonable reliance upon the safety of the merchandise. For the foregoing reasons, a finance lessor’s role in the chain of events does not provide a predicate upon which the imposition of strict liability can rest for a defective product.

Id., 497 Pa. at 132-133, 439 A.2d at 636.

* Instantly, we do not believe that the role of E.W. Kaufmann Company in the chain of events was tangential. It was not a finance lessor. The product was not mere collateral.

E.W. Kaufmann Company was in the business of selling or marketing merchandise, here linseed oil, and as such Kaufmann’s role in the chain of events does provide a predicate upon which the imposition of strict liability can rest for a defective product. Kaufmann was directly involved in supplying the chattel, not merely offering the use of money as in Nath.

As was pointed out in Francioni, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market; by the adoption of section 402A, that responsibility was placed on those who, through manufacturing and distribution, intend that products reach the market. What is crucial to the rule of strict liability is not the means of marketing, but rather the fact of marketing, whether by sale, lease or bailment, for use and consumption by the public. “Where the fundamental principles are applicable, the imposition of artificial distinctions will only frustrate the intended purpose.” Francioni v. Gibsonia Truck Corp., 472 Pa. at 367, 372 A.2d at 39.

The order and summary judgment in favor of E.W. Kaufmann Company is reversed and the case remanded for further proceedings. Jurisdiction of the superior court is relinquished.

      . Appellant states the questions presented and summarizes its argument thereon as follows:
      A. Considering the existence of a genuine issue of material fact, did the lower Court err in granting summary judgment in favor of the appellee?
      B. Whether the appellee, E.W. Kaufmann Company, which had knowledge of the propensities of boiled linseed oil and knew that the ultimate purchasers of the product would be ordinary consumers, had a duty to warn its customers and clients of any dangerous propensities of the oil?

        Summary of Argument

      A. The documentation in the record, including supporting affidavits, indicates that the appellee, E.W. Kaufmann Company, did purchase and receive title to the linseed oil. The foregoing gives use to a material issue of fact, the existence of which precludes the premature entry of a Summary Judgment in its favor.
      B. As E.W. Kaufmann Company is in the chain of distribution of linseed oil, it is liable to the plaintiffs and others in the chain under Section 402A of the Restatement (Second) of Torts and is under a duty to warn purchasers of any dangerous propensities of the linseed oil.
      Brief for Appellant at 3, 7.

      . In its motion for summary judgment, additional defendant E.W. Kaufmann Company alleged, inter alia:
      6. The aforesaid Complaint against Additional Defendants sets forth the chain of distribution of the boiled linseed oil substantially as follows:
      a) Additional defendant HONEYMEAD PRODUCTS COMPANY manufactures and sells the boiled linseed oil;
      b) additional defendant C.J. OSBORN CHEMICALS COMPANY distributes and sells the boiled linseed oil; and
      c) additional defendant E.W. KAUFMANN COMPANY accepts orders for the boiled linseed oil from defendant LOOS and DIL-WORTH, INC., on behalf of HONEYMEAD and arranges for shipment of the linseed oil by C.J. OSBORN CHEMICALS COMPANY directly to defendant LOOS and DILWORTH, INC.
      9. At all times material during the limited involvement of E.W. KAUFMANN COMPANY with the boiled linseed oil, said oil is owned, held, maintained and transported in bulk by additional defendants HONEYMEAD PRODUCTS COMPANY and C.J. OSBORN CHEMICALS and is not available, in bulk, to retail purchasers.

        10. Defendant LOOS and DILWORTH, INC. purchases the boiled linseed oil in bulk, packages the oil in its own containers, and places its own ‘Superior Brand’ label on said containers.
      16. The affidavit of E.W. KAUFMANN is attached hereto and marked as Exhibit ‘A’.
      AFFIDAVIT
      My name is EMERSON W. KAUFMANN and I depose and state to the best of my information, knowledge and belief that the following facts are true and correct:
      1. That in 1974 and 1975 I was the principal executive in the E.W. KAUFFMAN COMPANY.
      3. That with respect to the origin of the linseed oil used by LOOS and DILWORTH in the periods 1974-1975, it is produced by HONEYMEAD PRODUCTS in Minneapolis and shipped on a consignment basis to tanks at C.J. OSBORN in Pennsauken, New Jersey. HONEYMEAD retains title to this oil until someone else removes it from the storage tank. Generally speaking, only two parties take title to it when it is removed from the storage tank. They would be either OSBORN or its parent company, Superior Varnish & Drier both of whom consume the oil in production, or E.W. KAUFMANN COMPANY who resells it to other parties. However, there was an exception in the case of LOOS & DIL-WORTH in that title passed directly from HONEYMEAD PRODUCTS to LOOS & DILWORTH. Any oil which LOOS & DIL-WORTH obtained from HONEYMEAD PRODUCTS at the time in question was never owned by either E.W. KAUFMANN COMPANY or OSBORN. OSBORN was paid a through-put cost amounting to $.002 per pound for oil which they removed from the tank and shipped to LOOS & DILWORTH, and the E.W. KAUFMANN COMPANY also received a sales commission of $.002/lb. on that oil.
      Reproduced Record at 209a-14a. (Emphasis added)

       The theory of liability of the supplier of chattels is premised upon the recognition that he has so dealt with the goods that they are likely to come into the hands of another and to do harm if they are defective. Originally, liability was based solely upon negligence. However, the trend towards finding a ground for strict liability began in approximately 1905 as a consequence of the national concern over the marketing of defective food....


author: BROSKY, Judge:

text:
    452 A.2d 1355
    COMMONWEALTH of Pennsylvania, Appellant, v. Leroy BARNES. COMMONWEALTH of Pennsylvania v. Leroy BARNES, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1980.
    Filed Oct. 15, 1982.
    Reargument Denied Dec. 27, 1982.
    Petition for Allowance of Appeal Denied March 18, 1983.

      Gaele McGlaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant (at No. 2395) and appellee (at No. 2459).
    Leonard Sosnov, Assistant Public Defender, Philadelphia, for Barnes, appellant (at No. 2459) and appellee (at No. 2395).
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Leroy Barnes, was arrested in January of 1979 and charged with false swearing in official matters and perjury. Barnes brought a motion to suppress certain evidence. A hearing was held on July 18 and 19 of 1979. On October 22,1979, Barnes’ motion to suppress was granted in part and denied in part. The Commonwealth appeals from the portion of the suppression motion which was granted and Barnes filed a cross-appeal to the portion of suppression motion which was denied. We reverse in part and affirm in part.

The first issue before us is whether or not defendant’s appeal should be quashed.

The Commonwealth has the right to bring an interlocutory appeal from the granting of a motion to suppress evidence if that suppressed evidence is important to its case. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), Commonwealth v. Warfield, 418 Pa. 301, 211 A.2d 452 (1965). The defendant in a criminal case, on the other hand, may generally not bring an appeal from the denial of a pretrial motion to suppress until after his conviction and sentencing. Commonwealth v. Bosurgi, supra.

One of the self-evident policies behind this rule is the promotion of judicial economy. Should the defendant not be convicted, the validity of the denied suppression is moot.

The Pennsylvania Supreme Court has held that the latter rule prohibits the defendant appealing from a denied suppression motion even when that appeal would reach the appellate court along with the Commonwealth’s interlocutory appeal. Commonwealth v. Fisher, 422 Pa. 134, 221 A.2d 115 (1966).

The rule in Fisher was not followed two years later in Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968). The opinion of the court in Bordner, with four Justices joining, reached the merits of the defendant’s as well as the Commonwealth’s appeal from pre-trial suppression rulings. The majority opinion did not make any reference to the fact that its consideration of defendant’s appeal on the merits was a departure from the rule in Fisher. Justice Roberts filed a concurring opinion in which he disapproved of the court’s willingness to treat defendant’s appeal and argued that it should have been quashed.

In treating defendant’s appeal on its merits, we are modeling our actions on those the Supreme Court took in Bordner. We think that Bordner’s effect is to permit a criminal defendant to cross-appeal a denied suppression motion when the Commonwealth appeals a granted suppression motion.

Had Justice Roberts not drawn the court’s attention to the issue, we might not be inclined to adopt the procedure used in Bordner. However, when viewed in light of Justice Robert’s protest, the majority’s silence on the issue and their reaching the defendant’s appeal on its merits take on an added significance. Just as judicial economy is promoted by quashing a defendant’s appeal when the Commonwealth is not also appealing; so also is judicial economy promoted by allowing the defendant to join his appeal to the Commonwealth’s. The same basic fact situations will often be present in both appeals and there is an undeniable saving of time and expense for both parties and the courts if the issues are not artificially separated.

There is an additional advantage of consistency of treatment to be had in permitting such cross-appeals. Results grounded in contradictory interpretations of the same facts might be obtained if one panel of this court treated the interlocutory appeal of the Commonwealth and another panel handled the post-conviction appeal of the defendant. Consistency among different cases is always desirable in the law; but inconsistency in the handling of the same case is particularly unfortunate and to be avoided.

In this opinion we will, therefore, reach the issues of defendant’s appeal.

The Commonwealth presents the following questions on appeal: Was Barnes’ perjurious testimony at a 1979 court proceeding properly suppressed? And, was evidence which flowed from Barnes’ prior arrest for murder, even if illegally obtained, admissible to prove he subsequently committed perjury or false swearing? Barnes remonstrates in his cross-appeal that statements he made following his illegal arrest for murder should have been suppressed as well as testimony given during judicial proceedings on the murder charge because those statements were both tainted and were not obtained by methods free of compulsion.

The evidence sought to be suppressed has its origin in the proceedings which followed the arrest and charge of Barnes and Henry Gaddy and Nathanial Odom for their involvement in the robbery and homicide of Martin Dobkin. Barnes agreed to testify against his codefendants after the district attorney indicated he would nolle pros the murder charge and recommend the case be disposed of in Juvenile Court. Barnes so testified. Odom and Gaddy were convicted and Barnes was ordered by Juvenile Court to spend 15 months in a secure facility for his involvement in the homicide. Sometime later, Gaddy sought relief under the Post Conviction Hearing Act. 19 P.S. § 1180-1 et seq. At his P.C.H.A. hearing, Barnes testified that he had lied earlier and that he knew nothing about the Dobkin murder. Barnes was subsequently charged with perjury and false swearing.

After a preliminary hearing was held on the new charges filed against Barnes, a suppression hearing was held. Motions were filed challenging the admissibility of statements Barnes gave to the police immediately following his arrest for the Dobkin murder, a gun seized from Odom’s residence pursuant to a search warrant obtained pursuant to the evidence given by Barnes earlier, statements Barnes gave to the prosecution after Barnes agreed to testify against Odom and Gaddy, all of his testimony given against Odom and Gaddy and his testimony given at Gaddy’s P.C.H.A. hearing. Barnes claims all the evidence is tainted fruit of the illegal arrest. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). All the evidence was suppressed except for the testimony given at the trial of Odom and Gaddy.

Perjury is defined in language found at 18 Pa.C.S.A. 4902(a) which states:

A person is guilty of perjury, a felony of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true.

See: Commonwealth v. Lobel, 294 Pa.Super. 550, 440 A.2d 602 (1982).

False swearing in official matters is defined in 18 Pa.C. S.A. § 4903 as:

A person who makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, when he does not believe the statement to be true is guilty of a misdemean- or of the second degree if:
(1) the falsification occurs in an official proceeding; or
(2) the falsification is intended to mislead a public servant in performing his official function.

The Commonwealth argues that this decision is controlled by United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), and Commonwealth v. Davenport, 255 Pa.Super. 131, 386 A.2d 543 (1978).

In Commonwealth v. Davenport, supra, 255 Pa.Superior Ct. at 142, 386 A.2d at 584, we interpreted United States v. Mandujano, supra in stating:

The court was unanimous, however, in holding that whatever right to be warned may exist, a defendant who perjures himself rather than incriminates himself is entitled to no relief:
“[A grand jury witness] might answer truthfully and thereafter assert the constitutional guaranty. Under no circumstances, however, could he commit perjury and successfully claim that the constitution afforded him protection for that crime. ...”
425 U.S. [at] 570, 96 S.Ct. [at] 1773 (plurality opinions, emphasis in original; quoting from United States v. Orta, 253 F.2d 312 (5th Cir.1958)
[Perjury is] a course that the Fifth Amendment gave him no privilege to take. 425 U.S. at 585, 96 S.Ct. [at] 1768 (Mr. Justice BRENNAN, concurring in the judgment.) Our legal system provides methods for challenging the government’s right to ask questions—lying is not one of them.
425 U.S. at 609, 96 S.Ct. [at] 1768 (Mr. Justice STEWART, concurring in the judgment)
It is true that both concurring opinions in Mandujano indicate that relief might be available for a perjurer if false answers were induced by inherently unfair governmental tactics or procedures. 425 U.S. at 585, 609, 96 S.Ct. [at] 1768.

Thus, our concern essentially becomes whether the perjured testimony was obtained through inherently unfair government tactics if, as Barnes asserts, the evidence was all tainted by an illegal arrest.

In Commonwealth v. Ravenell, 448 Pa. 162, 292 A.2d 365 (1972), our Supreme Court discussed the purposes envisioned by Pennsylvania Rule of Criminal Procedure 323, which concerns the suppression of evidence, and which states in relevant part:

(g) A record shall be made of all evidence adduced at the hearing. The clerk shall impound the record and the nature and the purpose of the hearing and the order disposing of the motion shall not be disclosed by anyone to anyone except to the defendant and counsel for the parties. The record shall remain thus impounded unless the interests of justice require its disclosure.

The court said:

The purpose of section (g) of Rule 323 is to protect a defendant’s Fifth Amendment privilege against self-incrimination. It is felt that an individual who seeking to suppress evidence has the fullest opportunity to testify at the hearing when he knows that his testimony will not be disclosed. However, this privilege against self-incrimination cannot be construed to include the right to testify at a suppression hearing with complete impunity and at trial to testify in a contrary manner. In order to prevent this type of occurrence Rule 323(g) expressly recognizes that it may be necessary to disclose portions of the record of the prior suppression hearing when “the interests of justice” so require. It appears clear that whenever a defendant’s credibility is an issue it is in “the interests of justice” to show that he had testified in a completely contrary manner of an earlier hearing in the same case. To decide otherwise would be tantamount to the condoning of perjury-

id., 448 Pa. at 173-174, 292 A.2d at 371. Accordingly, our Supreme Court has held on several occasions that it is not error for the prosecution to cross-examine a defendant at trial, addressing the court’s attention to wholly contradictory statements made by the defendant at a suppression hearing. See: Commonwealth v. Kennedy, 271 Pa.Super. 206, 412 A.2d 886 (1980); Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977); Commonwealth v. Ravenell, supra.

It follows then that our Supreme Court would not find it inherently unfair for the government to seek to convict a defendant of perjury who has contradicted statements given by him at a suppression hearing in testimony at trial. The fact that the evidence is suppressed or not would seem to be irrelevant where a defendant wholly contradicts himself. To decide otherwise would permit a defendant to perjure himself in precisely the manner in which the court in Commonwealth v. Ravenell, supra, sought to prevent.

Our situation while not precisely the same is analogous. Here, Barnes testified in 1972 at the trials of Gaddy and Odom. He testified after he was given his 5th Amendment rights on two occasions. Clearly, if he wished to state that Odom and Gaddy had nothing to do with the murder he could have done so. He also could have elected to say nothing and asserted his 5th Amendment rights. There is no indication that Barnes sought to assert his 5th Amendment rights and for that matter the prosecution took no action to compel him to answer in contravention of those rights. See In Re Brogna, 589 F.2d 24 (1st Cir.1978). Barnes chose to incriminate himself and Gaddy and Odom. Barnes has paid his penalty for that crime. Nevertheless, he may not now simply retract his earlier statements and not commit perjury. We hold that, even if the evidence was suppressible, that such evidence is admissible to prove Barnes has committed perjury and false swearing. Essentially, if a person is duly sworn to testify and does so, where he has been advised that he cannot testify falsely, see: United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); Leary v. United States, 544 F.2d 1266 (5th Cir.1977), the oath itself is sufficient to put a witness on notice of his obligation to testify truthfully. United States v. Wong, 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977). Commonwealth v. Good, 461 Pa. 546, 337 A.2d 288 (1975). Barnes was free to not incriminate and then pursue his claim that the evidence against him was suppressible when he was brought to trial. He chose not to follow this path. We find no purpose in permitting him to do so now other than to sanction the commission of perjury. We are satisfied that both the word and spirit of United States v. Mandujano, supra, and United States v. Wong, supra, require this result.

The order of the lower court is reversed insofar as it suppressed certain evidence and is affirmed insofar as it did not suppress certain evidence.

      . 18 Pa.C.S.A. § 4903.

      . 18 Pa.C.S.A. § 4902.

      . It is clear that such an appeal is properly before this court. See: Commonwealth v. Ryan, 296 Pa.Super. 222, 442 A.2d 739; Commonwealth v. Monaghan, 295 Pa.Super. 450, 441 A.2d 1318.

      . A cross-appeal is permitted pursuant to Pennsylvania Rules of Appellate Procedure, Rules 511 and 903(b).

      . Such an interlocutory appeal by the defendant is permissive, not mandatory; and no prejudice to the defendant will result if he should choose to postpone his appeal until, and if, he is convicted.

      . Barnes was also represented at all times by counsel. Federal Circuit Courts have held that complete denial of counsel is not bar to a subsequent perjury prosecution. United States v. Dipp, 581 F.2d 1323 (9th Cir.1978); United States v. Masters, 484 F.2d 1251 (10th Cir.1973); United States v. Winters, 348 F.2d 204 (2nd Cir.), cert. denied, 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360 (1965). Clearly, denial of counsel does not rise to an inherently unfair governmental act.

      . There is no evidence whatsoever that the prosecution used the testimony given by Barnes against Odom and Gaddy to indict Barnes on criminal charges. Barnes testified in exchange for having the murder charge brought against him nol pressed and having the proceedings against him pursued by the Commonwealth in juvenile court. See: United States v. McInnis, 601 F.2d 1319 (5th Cir.1979); United States v. Phillips, 540 F.2d 319 (8th Cir.1976); United States v. DeRosa, 438 F.Supp. 548 (D.Mass., 1977).

      . We are unable to see how we would deter police from misconduct by suppressing evidence which Barnes supplied the court under oath. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 61 L.Ed.2d 1081 (1961).

      . The Commonwealth contends that the evidence cannot be suppressed because Barnes has waived any opportunity to so move. Our decision does not require that we discuss the waiver issue.


author: POPOVICH, Judge: JOHNSON, Judge,

text:
    452 A.2d 1360
    In re IRREVOCABLE INTER VIVOS TRUST AGREEMENT OF William HANLEY, Deceased. Appeal of Tullah HANLEY, Administrators of Estate of Marie Hanley, Heirs of Anna Bird, Commonwealth of Pennsylvania, Heirs of Gladys H. Leahy, Dennis Hillier, Guardian ad litem for William L. Hanley, Jr., and Executors of Estate of Jean F. Dorn. Wilbur J. SIEBERT and Guy McKittrick, Administrators of the Estate of Marie Hanley, Deceased v. James M. BIRD, Lee Hanley, Richard G. Leahy, Substitute Trustees Under Declaration of Trust for Marie Hanley, Deceased, Leon J. Leahy and Manufacturers and Traders Trust Company, Trustees Under Will of Gladys H. Leahy, Tullah Innes Hanley and Bennett Friedman, Surviving Executors of the Estate of Thomas Edward Hanley, James M. Bird and Ruth A. McCready, Executors of the Estate of J.W. Bird, William L. Hanley, Barbara L. Regan, Richard Leahy, William H. Bird, John E. Bird, James M. Bird, Thomas E. Bird, Joanne Bird Dorn, Jean Forster Dorn, Tullah Innes Hanley, Leon J. Leahy. Appeal of Tullah HANLEY, Commonwealth of Pennsylvania. Wilbur J. SIEBERT and Guy McKittrick, Administrators of the Estate of Marie Hanley, Deceased v. James M. BIRD, Lee Hanley, Richard G. Leahy, Substitute Trustees Under Declaration of Trust for Marie Hanley, Deceased, Leon J. Leahy and Manufacturers and Traders Trust Company, Trustees Under Will of Gladys H. Leahy, Tullah Innes Hanley and Bennett Friedman, Surviving Executors of the Estate of Thomas Edward Hanley, James M. Bird and Ruth A. McCready, Executors of the Estate of J.W. Bird, William L. Hanley, Barbara L. Regan, Richard Leahy, William H. Bird, John E. Bird, James M. Bird, Thomas E. Bird. Appeal of Dennis W. HILLIER, Guardian Ad Litem for William L. Hanley, Jr., Commonwealth of Pennsylvania. In re IRREVOCABLE INTER VIVOS TRUST AGREEMENT OF William HANLEY, Deceased. Appeal of Dennis W. HILLIER, Guardian Ad Litem for William L. Hanley, Jr., Administrators of Estate of Marie Hanley, Deceased, Heirs of Anna Bird, Tullah I. Hanley, Heirs of Gladys H. Leahy, Executors of Estate of Jean F. Dorn, Commonwealth of Pennsylvania. Wilbur J. SIEBERT and Guy McKittrick, Administrators of the Estate of Marie Hanley, Deceased v. James M. BIRD, Lee Hanley, Richard G. Leahy, Substitute Trustees Under Declaration of Trust for Marie Hanley, Deceased, Leon J. Leahy and Manufacturers and Traders Trust Company, Trustees Under Will of Gladys H. Leahy, Tullah Innes Hanley and Bennett Friedman, Surviving Executors of the Estate of Thomas Edward Hanley, James M. Bird and Ruth A. McCready, Executors of the Estate of J.W. Bird, William L. Hanley, Barbara L. Regan, Richard Leahy, William H. Bird, John E. Bird, James M. Bird, Thomas E. Bird, Joanne Bird Dorn, Jean Forster Dorn, Tullah Innes Hanley, Leon J. Leahy. Appeal of HEIRS OF Gladys LEAHY, Commonwealth of Pennsylvania. In re IRREVOCABLE INTER VIVOS TRUST AGREEMENT OF William HANLEY, Deceased. Appeal of HEIRS OF Gladys LEAHY, Heirs of Anna H. Bird, Dennis W. Hillier, Guardian Ad Litem for William L. Hanley, Executor of Estate of Jean F. Dorn, Tullah Hanley, Administrators of Estate of Marie Hanley, Commonwealth of Pennsylvania. In re IRREVOCABLE INTER VIVOS TRUST AGREEMENT OF William HANLEY, Deceased. Appeal of Anna H. BIRD, To-Wit the Estate of William Bird, Estate of Joann B. Dorn, James Bird and Thomas E. Bird, Administrators of the Estate of Marie Hanley, Dennis Hillier, Guardian Ad Litem for William L. Hanley, Jr., Tullah Hanley, Commonwealth of Pennsylvania, Heirs of Gladys Leahy, Executors of Estate of Jean F. Dorn. Wilbur J. SIEBERT and Guy McKittrick, Administrators of the Estate of Marie Hanley, Deceased v. James M. BIRD, Lee Hanley, Richard G. Leahy, Substitute Trustees Under Declaration of Trust for Marie Hanley, Deceased, Leon J. Leahy and Manufacturers and Traders Company, Trustees Under Will of Gladys H. Leahy, Tullah Innes Hanley and Bennett Friedman, Surviving Executors of the Estate of Thomas Edward Hanley, James M. Bird and Ruth A. McCready, Executors of the Estate of J.W. Bird, William L. Hanley, Barbara L. Regan, Richard Leahy, William H. Bird, John E. Bird, James M. Bird, Thomas E. Bird, Joanne Bird Dorn, Jean Forster Dorn, Tullah Innes Hanley, Leon J. Leahy. Appeal of Anna H. BIRD, To-Wit the Estate of William Bird, the Estate of Joann B. Dorn, John Bird, James Bird and Thomas E. Bird, Commonwealth of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1981.
    Filed Oct. 15, 1982.
    Reargument Denied Dec. 22, 1982.
    Petition for Allowance of Appeal Granted May 11, 1983.

      John H. Yoder, Smethport, for Tullah Hanley et al.

      G. Donald Gerlach, Pittsburgh, for Hillier et al. and William Hanley.
    William C. Sennett, Erie, for Bird, participating party.
    Howard D. Schwartz, Pittsburgh, for Dorn, participating party.
    Before BECK, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This case involves appeals taken by: 1) Tullah Hanley; 2) the heirs of Anna H. Bird; 3) the heirs of Gladys Leahy; and 4) Dennis W. Hillier, Guardian Ad Litem for William L. Hanley, Jr., from the Order of the Court of Common Pleas of McKean County, Orphans’ Court Division, denying their exceptions. We reverse in part and affirm in part.

The facts, which are not in dispute, are as follows: By 1932, William L. Hanley (hereinafter referred to as “Mr. Hanley”), age 88, had amassed a sizeable estate as a result of his business acumen. For example, Mr. Hanley founded and served as President of the Hanley Company and the Hanley Oil Company, the former of which he turned over active management to his son, William, in 1927. Thereafter, William served as President and Mr. Hanley retained the title of Treasurer. In addition, Mr. Hanley had large stock holdings in a number of companies, some of which included South Penn Oil Company (presently known as Pennzoil Company), National Fuel Gas Company and General Motors Company.

In 1927, in an attempt to divest himself of some of his assets, Mr. Hanley made gifts of 500 shares of Hanley Company stock to four of his children, Anna, Edward, William and Gladys. However, Mr. Hanley made no gift to, or for the benefit of, his fifth child, Marie. At this point, it is to be noted that Marie was incompetent, although never legally declared as such. The Hanley family had a strong Catholic faith and were concerned with taking care of their own members without undue publicity. Thus, formal guardianship proceedings were never instituted for Marie, either before or after Mr. Hanley’s death, nor was Marie ever institutionalized. Additionally, there is evidence in the record to indicate that Marie was unable to speak from birth, but apparently she could communicate with her immediate family in a rudimentary fashion. She could perform simple tasks such as dressing and feeding herself, but could not perform other routine tasks required of an adult, nor could she manage her own financial affairs. Because of such deficiencies in Marie’s makeup, she lived with her parents in Bradford, Pa., and had all of her needs cared for by them.

In late 1931 or early 1932, Mr. Hanley decided to make gifts to his five children. The testimony reveals that he talked to his eldest son, William, about the implementation of his desires. To determine the advisability of such gift-giving, Mr. Hanley directed his son to discuss the matter with a financial advisor employed by the Hanover Bank in New York City. Upon William’s return, he informed his father that the financial consultant advised against making gifts or executing documents utilizing the term “trust,” for it was anticipated that legislation might be forthcoming that would render the advisability of such action suspect.

Based on the advice proffered, Mr. Hanley, on April 25, 1932, gave to each of his four children (William L. Hanley, Jr., Anna H. Bird, T. Edward Hanley and Gladys Leahy) gifts of stock totaling approximately $48,000.00. As for Marie, he gave stocks of equal value to Anna H. Bird and T. Edward Hanley with instructions to use it to care for Marie. Mr. Hanley selected Anna and Edward to carry out this act since they were the only two children residing in Bradford. As far as the duties and obligations attendant to such appointment by their father was concerned, Anna and Edward had no written document evidencing the manner in which the fund was to be used for Marie’s benefit. However, we note that each child received a stock certificate evidencing ownership of a fixed number of shares (500) in Hanley Company. In Marie’s case, we have two certificates that were issued. The first, Certificate No. 280, was made out to “ANNA H. BIRD & THOMAS E. HANLEY, TRUSTEES FOR MARY [sic] HANLEY.” The Certificate was endorsed by the President (“William L. Hanley, Jr.”) and Treasurer (“Wm Hanley”—Mr. Hanley) of the company and dated April 25, 1932. Of significance here is the fact that the stub attached to the Certificate, which was also dated April 25th, was never issued and had written across its face the term “void”. Also, on the bottom of the stub, there appears the language: “See certificate # 281”. An examination of that document reveals that it was likewise dated April 25, 1932, and was issued in the names of “ANNA H. BIRD & THOMAS E. HANLEY” for five hundred shares of Hanley Company stock. The accompanying stub is dated April 28, 1932, and is marked “for Marie Hanley”. This certificate is signed by “Wm Hanley” (Mr. Hanley) as Treasurer and “Gordon W. Reed” as Vice President.

Additionally, transfers of stock were made by Mr. Hanley to his children, which included Marie. For example, twenty-five shares of Hanley Oil Company capital stock, listed as $30,000 on Certificate No. 60, were issued on April 28, 1932, in the names of “THOMAS EDWARD HANLEY & ANNA H. BIRD”. The Certificate was signed by Mr. Hanley as President and Thomas C. Francis as Assistant Treasurer. Interestingly enough, the transfer stub has written on it, after the typed language “Issued to,” the legend “T.E. Hanley & Anna H. Bird for Marie Hanley”. The stub was signed by Anna H. Bird. (Exhibit WH 22)

With respect to 200 shares of National Fuel Gas Company, the records of Manufacturers Hanover Trust Company, transfer agent for National Fuel, indicate that on April 29, 1932, Mr. Hanley transferred to each of his children 200 shares of said stock and, specifically, designated that the shares to be given to Marie were to be issued accordingly: “Anna H. Bird & Thomas E. Hanley, Trustees for Mary [sic] Hanley”. (Exhibit WH 15) However, once again, the trust designation was revoked by Mr. Hanley. On July 19, 1932, the 200 shares were reassigned to “Anna H. Bird & Thomas E. Hanley as Joint Tenants with Right of Survivorship and not as Tenants in Common.” Id. at 2.

In the month of June, 1932, General Motors and South Penn Oil Company (later Pennzoil) stock certificates were transferred by Mr. Hanley to his children, although on this occasion Marie was not included.

To regress somewhat, on April 29, 1932, four days after the transfer of twenty-five shares of Hanley Company stock “for Marie Hanley,” Mr. Hanley executed his Will. In the first ITEM of said Will, Mr. Hanley set up a trust of one-third of his estate for his wife’s life and upon her death the remaining portion of same, if any, was to fall into his residuary estate.

The second ITEM in Hanley’s Will reads:

“If the provisions which I have heretofore made for my daughter, Marie Hanley, shall not, during any year after my death, produce an income of at least Eighteen Hundred Dollars ($1,800.00) then in such event or events I authorize and direct my Executors hereinafter named to pay to or on account of the support and maintenance of my said daughter such sum or sums as shall equal the difference between the income determined and the said sum of $1,800.00, provided, however, that such payment in the judgment of my said Executors shall be deemed necessary for her comfortable maintenance and support.”

Mr. Hanley died testate on April 18, 1933, survived by his wife, Johanna, and five children, Marie Hanley, William L. Hanley, Jr., Thomas E. Hanley, Anna H. Bird and Gladys H. Leahy. As noted earlier in this Opinion, a sixth child, Lauretta H. Forster, predeceased Mr. Hanley and was survived by a daughter, Jean Forster Dorn. Johanna Hanley died a year after her husband’s death. Marie Hanley passed away on July 3, 1974.

The probate of Marie’s estate motivated the appellants to file the instant appeal from the Orphans’ Court’s determination that the transfer of certain securities by Mr. Hanley to Anna H. Bird and Thomas E. Hanley constituted an outright “gift” to Marie, and, thus, distributable as part of her estate. The heirs of Anna H. Bird, also parties to the action below, took exception to the lower court’s Order and filed a timely appeal from the denial thereof. However, the theory presented on behalf of these heirs was that the transfer of securities by Mr. Hanley to Anna H. Bird and Thomas E. Hanley in 1932, vested complete ownership and legal title in said stock in Anna and Thomas.

In responding to the claims made, we will first address the contention of the appellants—Tullah Hanley, Dennis W. Hillier (guardian ad litem for William L. Hanley, Jr.) and the heirs of Gladys Leahy, followed by an examination of the averments raised by the heirs of Anna H. Bird.

Appellants urge that the lower court erred in not concluding that the transfer of certain securities by Mr. Hanley, in April of 1932, to Thomas E. Hanley and Anna H. Bird “for Marie Hanley,” constituted an oral trust, which, upon Marie’s death, would revert to Mr. Hanley’s estate in favor of the residuary beneficiaries in his Will. We agree.

The standard of review in examining the findings of a chancellor has been oft-stated:

“ ‘In passing upon the questions raised on this appeal we must adhere to the well-established rule that a chancellor’s findings of fact, approved by a court en banc, have all the force and effect of a jury’s verdict if they are supported by adequate evidence and ordinarily will not be disturbed on appeal. [Citing cases.] However, the chancellor’s “conclusions whether of law or ultimate fact are no more than his reasoning from the underlying facts and are reviewable”, especially “where the underlying facts themselves are not in esse but are matters of inference and deduction”. [Citing cases.] Furthermore, a chancellor’s findings of fact, even though approved by a court en banc, need not be accepted as conclusive if there is no evidence to support them or if they are based on an inference erroneously taken [citing cases] or where the evidence, in order to prevail, must be clear, precise and indubitable or must meet some other prescribed standard [citing a case].’ ”
Sechler v. Sechler, 403 Pa. 1, 4, 169 A.2d 78, 80 (1961). Accord Hankin v. Hankin, 279 Pa. Super. 179, 420 A.2d 1090 (1980).

Thus, based on the preceding, with respect to those findings that are no more than inferences or deductions from the evidence, we shall make our own deductions and draw our own conclusions as may be necessary to a proper resolution of the legal questions presented. This type of review is appropriate here, inasmuch as those individuals who were privy to the circumstances attendant to the transfer of securities by Mr. Hanley were either deceased (Anna H. Bird and Thomas E. Hanley) or declared incompetent (William L. Hanley, Jr.) at the time of the hearing. Thus, the lower court admitted into evidence a number of documents, executed by the absent parties, in its attempt to ascertain Mr. Hanley’s intent (creation of an “oral” trust vis-a-vis the making of an outright “gift” to Marie) during the period in question.

The standard to be utilized in determining the existence of an “oral” trust was set forth by our Supreme Court in Keller v. Keller, 351 Pa. 461, 462-465, 41 A.2d 547, 548-49 (1945):

“A trust in personal property may be established by parol evidence[.] The burden of establishing the existence of the trust [is] upon [the party claiming same].... While no particular form of words or conduct is necessary for the creation of a trust, language or conduct and a manifestation of an intention to create the same must be proven by evidence which is sufficiently clear, precise, and unambiguous[.] In reviewing the evidence to determine the existence of a trust the situation of the settlor and the beneficiary, financial and otherwise, their relation to each other as well as the purpose for which the trust was created, and circumstances under which it is to be administered must be given due consideration. All the evidence and surrounding circumstances must be considered as an entirety; isolated facts and circumstances are ofttimes misleading and do not present a true picture.” (Emphasis added)

Stated differently, “[i]n order to ascertain the actual intent of the settlor [Mr. Hanley] . .., the Court must place itself in his armchair and consider not only the language and scheme of the instrumenté if any,] but also the facts and circumstances with which he was surrounded; and these surrounding facts and circumstances include the condition of his family, the natural objects of his bounty and the amount and character of his property[.]” (Citations omitted) In re Trust Estate of Pew, 411 Pa. 96, 106, 191 A.2d 399, 405 (1963). Of course, Mr. Hanley’s intent must be determined as of the date of the creation of the purported trust in 1932. Id.

Having delineated the general guidelines for our review, we see the real issue to be whether the appellants have met their burden of proving the existence of an oral trust agreement between Mr. Hanley and Anna H. Bird and Thomas E. Hanley for Marie, by clear, direct, precise and convincing evidence. Whether this burden has been met is a question of law. See In re Estate of Moore, 439 Pa. 578, 266 A.2d 641 (1970), overruled on other grounds, Estate of Grossman, 486 Pa. 460, 406 A.2d 726 (1979).

With these general principles in mind, we now turn to the evidence and circumstances of this case to evaluate appellants’ contention that the record does support a finding of an express oral inter vivos trust. In so doing, we are not precluded from looking beyond the 1932 securities transactions “to contemporaneous circumstances[.]” In re Scholler’s Estate, 403 Pa. 97, 101, 169 A.2d 554, 557 (1961).

By 1932, Mr. Hanley, who by then was an octogenarian, had compiled an impressive record in the business community, e.g., he was Treasurer and, before that, President of the Hanley Oil Company and Hanley Company, and accumulated a sizeable stock portfolio. Moreover, Mr. Hanley was not indifferent to the welfare of his children, in particular Marie. Of these children, three were living in Bradford, Pa., in 1932—Anna, Thomas and Marie. The fourth child, William, resided in Connecticut and the last one, Gladys, lived in Buffalo, New York.

Of relevance here is the uncontroverted fact that Marie (born August 1, 1890) was an incompetent since birth. She lived with her parents until their death and never married or had children. All through Marie’s life, she was unable to speak, except through monosyllabic expressions, nor was she able to care for herself and, in fact, required the constant help and attention of a nurse or housekeeper. Marie never owned any property in her own name. She was unfamiliar with money or the management of money-matters. Marie had no formal training or schooling. Through the assistance of her parents, she did learn to dress herself, eat at the table and do simple household chores.

As recounted earlier in this Opinion, Mr. Hanley wanted to transfer stocks to his children, but, because of advice secured from a financial consultant, learned that possible new federal gift tax laws counseled against the establishment of a “trust” in favor of any of his children. Upon obtaining this information, Mr. Hanley decided to give 500 shares of stock in Hanley Company to each of his four children, William, Thomas, Gladys and Anna. On this occasion, Mr. Hanley issued capital stock initially in the names of Anna H. Bird and Thomas E. Hanley, either as trustees for Marie or for Marie’s care, but subsequently negated these certificates so as to reflect only the names of Anna and Thomas.

The specific manner in which the $48,000 in stocks were issued and/or modified appears supra, and it will not be repeated at this point of the discussion. As analyzed by the court below, five factors of the evidence furnished the “underlying facts” from which it could be inferred that there had not been an agreement creating an oral trust. Such evidence was:

1) The fact that Mr. Hanley’s Will, executed a few days after the April transfers, specifically utilized language indicative of his awareness of how to create a trust while the transfers included no such verbiage;
2) The Federal Estate Tax Return of Mr. Hanley, filed after his death by Anna, Thomas and William, “denied that there were any trusts created by the decedent during his lifetime”;
3) A document drawn by counsel on behalf of William L. Hanley, Jr., in November of 1935, a paper written by Thomas E. Hanley on March 18, 1936 and an affidavit signed on July 6, 1954 by Thomas E. Hanley all made reference to the property (Marie’s stocks) being ultimately distributed to Mr. Hanley’s remaining children. (However, the lower court found this to be unpersuasive because “[n]ot one of these three writings purported] to say what Hanley senior actually did say when he made the gift [of stocks in question]”);
4) The first document mentioned in Point # 3, supra, was not signed by Anna Bird on the basis that it was an “assumption” on William’s part that any residue of the fund (stock transfers) was to become part of her father’s (Mr. Hanley’s) estate; and
5) The Federal Estate Tax Returns of both Anna and Thomas, filed upon their death, made no mention that the estates of either had any interest in a trust fund.

Despite the aforementioned, the lower court concedes that “[t]he events indicate that Hanley senior was concerned greatly about Marie and that he wanted to provide for her ... [,] but he failed to [do so by] ... set[ting] up ... a trust.” (Lower Court Opinion at 14-15) Rather, the court goes on to state, “[Mr. Hanley] knew Marie was incompetent but did not desire to have any stigma placed against the family by having a court declare her incompetent, so he gave the assets to T. Edward and Anna to act as her guardians.” Id. at 15.

Although we agree with the lower court that the evidence reveals that Mr. Hanley was interested in the welfare of his daughter, Marie, we do not accept its inference, drawn from the facts, that Mr. Hanley intended to have Thomas and Anna act as guardians rather than as trustees for Marie’s property.

We now turn to the court’s predicate for its ruling. As for Point # 1, supra, we disagree that the absence of trust language in one instrument (stock certificates) and its presence in another (Mr. Hanley’s Will, which was prepared within four days thereafter) is reflective of Mr. Hanley’s intent not to establish a trust on behalf of Marie.

The Court in the case of In re Thompson's Estate, 416 Pa. 249, 206 A.2d 21 (1965), although dealing with a Will contest, responded to an issue in a manner that is instructive to the case at bar. There, the testatory had indicated in one paragraph of his Will that the executor was to hold certain personal effects “in trust” and to distribute them according to a memorandum enclosed in an envelope with the Will. However, in the next paragraph, the testator gave the executor all of the residuary estate to be distributed among local charities as deemed worthy in the executor’s sole discretion. A codicil to the Will, executed three years thereafter, cancelled the objective of the two preceding paragraphs and substituted another individual as executrix. The Court, in determining that the first executor had standing to contest the probate of the codicil as a “trustee” under the initial Will, responded to the executrix’s argument that no trust was established:

“Appellee[-executrix] contends that the omission in the 20th paragraph of the words ‘in trust’ or ‘trustee’—especially in view of the presence of the words ‘in trust’ in the 19th paragraph—negatives the existence of a trust. Such contention lacks merit. While the presence or absence of the words ‘in trust’ or ‘trustee’ must be given consideration, the presence or the absence of such words is not controlling in determining the existence or non-existence of a trust. Tunnell's Estate, 325 Pa. 554, 190 A. 906; Sheets’ Estate, 52 Pa. 257.
A study of the 20th paragraph of the [Wjill indicates that, while [appellant, who is named under the testator’s Will to act on his behalf,] is nominally an executor, actually he is a trustee clothed with the duties of a trustee.” (Emphasis added) (Footnote omitted) Id. 416 Pa. at 254, 206 A.2d at 25.

Based on the aforesaid, we learn that neither the presence nor the absence of the words “trust,” “trustee” or “beneficiary” is determinative of an intention to create a trust. 1 A. Scott, Law of Trusts § 24 (3d Ed.1967). Moreover, it is well settled that no particular form of words or conduct is necessary to create a trust. Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117 (1974); Provident Trust Co. v. Lukens Steel Co., 359 Pa. 1, 58 A.2d 23 (1948); Restatement (Second) of Trusts § 24 (1959). As one author has stated, the question is whether the agreements taken as a whole evidence an intent by the parties in question “to impose ... upon a transferee of the property equitable duties to deal with the property for the benefit of another person.” 1 A. Scott, Law of Trusts § 24, at 192 (3d Ed.1967); see Restatement (Second) of Trusts § 2 (1959).

A cursory examination of the certificates drawn in the names of Anna H. Bird and Thomas E. Hanley in isolation, some of which contained the language “trustees for Mary Hanley” or “for Marie Hanley” and were subsequently altered, might give one the impression, and justly so, that Mr. Hanley contemplated the establishment of a trust and then dismissed the idea in favor of making an outright gift to Marie. However, as appealing as such interpretation may be at first blush, such a position loses some of its allure when viewed against the backdrop of Marie’s admitted incompetence, especially in regard to financial matters. See generally Lapayowker v. Lincoln College Preparatory School, Inc., 386 Pa. 167, 170, 171, 125 A.2d 451, 454 (1956) (establishment of a resulting trust in favor of grantor must be supported by clear, explicit and unequivocal—though not necessarily uncontradicted—evidence). This malady on Marie’s part was not discounted by Mr. Hanley, as evidenced by the specific reference in his Will that:

“If the provisions which I have heretofore made for my daughter, Marie Hanley, shall not, during any year after my death, produce an income of at least Eighteen Hundred Dollars ($1,800.00) then in such event or events I authorize and direct my Executors hereinafter named to pay to or on account of the support and maintenance of my said daughter such sum or sums as shall equal the difference between the income determined and the said sum of $1,800.00, provided, however, that such payment in the judgment of my said Executors shall be deemed necessary for her comfortable maintenance and support.” (Emphasis added)

Therefore, given the preceding, the existence of some arrangement (“provisions”) having been formulated by Mr. Hanley dehors the Will is not so tenuous as to negative its existence. This belief is buttressed by the fact that Marie was not named as a residuary legatee in Mr. Hanley’s Will, whereas the other four children were so included. Thus, at least at this stage of the discussion, suffice it to say that the lack of specific trust language in the certificates is inconclusive as to the existence or non-existence of a trust. See In re Thompson's Estate, supra.

Point # 2, supra, of the lower court’s itemization of those factors militating against the existence of a trust, deals with Federal Estate Tax Returns filed by Mr. Hanley’s children upon his death and their failure to list therein the existence of any trust. We find this point to be unpersuasive. As was said in Sayre’s Estate, 443 Pa. 548, 552, 279 A.2d 51, 53 (1971), the failure by an individual to treat certain transactions properly in their federal tax returns “could be the result of [their] misunderstanding of the Federal tax laws.” Accord In re Estate of Tippins, 487 Pa. 107, 112 n. 2, 408 A.2d 1377, 1380 n. 2 (1979). There was no evidence presented instantly to indicate a contrary result.

Point. # 3, supra, is equally tenuous. The writings executed by various family members to prove that Mr. Hanley intended to create a trust are not rendered ineffectual because they neglected to state therein what Mr. Hanley “actually did say when he made the” transfer of stock to Anna and Thomas. As we stated previously, a trust relationship can arise out of the conduct of the parties as well as the spoken word. See Estate of Leggett v. United States, 418 F.2d 1257 (3d Cir.1969); In re Estate of Trbovich, 488 Pa. 583, 413 A.2d 379 (1980); see also In re Koziell’s Trust, 412 Pa. 348, 194 A.2d 230 (1963); In re Scholler’s Estate, supra. For example, within the same period that the stocks in question were issued, Mr. Hanley had his Last Will and Testament drawn. Therein, he specifically excluded Marie from taking as a beneficiary under the residuary clause. However, he did make allowances in his Will for supplementing Marie’s income if the “provisions” he had made outside the testamentary document fell short of taking care of her needs. This is, at the very least, some indicia that Mr. Hanley took steps, exclusive of his Will, to provide for Marie’s care and maintenance.

During the years that followed the stock transfer, Anna H. Bird and Thomas E. Hanley established a “Check and Deposit Register” in their names. (Exhibit WH 36) Dividend receipts for Hanley Company, South Penn, General •Motors and National Fuel Gas were reported as received in this account and detailed disbursements were recorded from it. Some of the expenditures were indexed under “in payment of” for: 1) “a dog-Marie”; 2) “Marie Fur Coat”; 3) “Marie Clothes”; and 4) “For Marie Exp.” (Exhibit WH 36, at RR. 031) Additionally, an August, 1935 statement of the account (the earliest bank statement available) establishes that The Bradford National Bank (which has since been incorporated and renamed the Pennsylvania Bank and Trust Company) had an account for Marie, and it was maintained in the names of “Anna H. Bird and T.E. Hanley Trustees”. (RR. 18-32) The trustees from time to time made withdrawals from the trust fund and executed notes to themselves “as Trustees”. (Exhibits WH 33-35) Such record keeping by Anna and Thomas is reflective of their attempt to memorialize the accretions from stock dividends and splits as they accrued, as well as documenting withdrawals when made. All this conduct, at least as we interpret it, points to the conclusion that Anna and Thomas were acting as trustees for Marie. See Estate of Leggett v. United States, supra.

The lower court’s Point # 4, supra, makes mention of a writing prepared during November of 1935, in which William L. Hanley, Jr., stated that it was his father’s intention, after Marie’s death, to have “so much of the shares of stock above described or so much of the proceeds or reinvestment of the same as might remain should become a part of his[—Mr. Hanley’s—] Estate and distributed to and among his four children .. . . ” (Lower Court Opinion at 11) William sent this writing to Anna and Thomas to have them endorse it for the purpose of establishing that they were all in agreement as to their father’s intention regarding the stocks issued to Marie or on her behalf. As the court correctly notes, albeit Thomas signed the writing, Anna refused on the basis that the content of the letter was an “assumption” on William’s part. However, we place no great weight in Anna’s refusal to sign, for in the ensuing years a proliferation of documents were circulated among the parties in their attempt to document a consensus by the trio as to their father’s intention, which is at odds with Anna’s original position. Moreover, the writings that subsequently followed span too great a period of time (1936 to 1965) to make them relevant in the ascertainment of the settlor’s (Mr. Hanley’s) intention in 1932. See In re Estate of Keeney, 465 Pa. 45, 348 A.2d 108 (1976) (there is no support for the contention that a statement made as long as three years after the creation of a joint property interest is probative of the transferor’s intent at the time of the transaction); Sechler v. Sechler, supra (deciphering the meaning of a letter written by the transferor to her daughter, 11 years after the conveyance in question by the transferor to her son, would have been pure speculation, particularly as to holding that one-half interest in the property transferred was to be divided between the two children). Thus, we find such matter not probative of Mr. Hanley’s intent in transferring the stocks.

Lastly, as to Point # 5, supra, we find that the absence of any mention in Anna H. Bird’s or Thomas E. Hanley’s Federal Estate Tax Returns as to their interest in any trust is not dispositive of or pivotal to the question of whether the settlor intended to establish a trust for Marie in 1932—Anna having died on September 18, 1966 and Thomas having died on April 9, 1969. Aside from the fact that the disparity in the dates minimizes their relevance in deciphering the settlor’s intent as of the period in question (1932), see In re Estate of Keeney, supra; Sechler v. Sechler, supra, it is plausible that the executor or administrator of the respective estates failed to make the complained of inclusion as a “result of [his or her] misunderstanding of the Federal tax laws.” Sayre's Estate, supra, 443 Pa. at 552, 279 A.2d at 53. This recitation of the facts, when aligned alongside the law, disposes of the last prong of the lower court’s basis for its ruling.

Based on our meticulous review of the voluminous record and the four extensive briefs that accompanied this appeal, we find it most difficult to believe, under the circumstances here present, that a man of Mr. Hanley’s accomplishments and business acumen would make an outright gift of stock (valued in 1932 at $48,000.00 and now estimated to be worth—i.e., the decedent’s entire estate—approximately 21A million dollars) to a total incompetent. We cannot accede to the lower court’s contention on this aspect of the case. To do so “would lead to a highly improbable result . .. . ” In re Fahey’s Estate, 360 Pa. 497, 499-500, 61 A.2d 880, 881 (1948). Therefore, ascribing “a meaning conformable to the [settlor’s] plausible intent ... if agreeable to reason[,]” ibid, we conclude that Mr. Hanley intended to establish a trust on behalf of his daughter, and that upon Marie’s death Mr. Hanley desired that any assets not consumed in the trust corpus would revert back to his estate and be distributed through the residuary clause of his Will. It is true that “ ‘[o]ne who seeks to establish the existence of a resulting trust bears a heavy burden of proof; the evidence must be “clear, direct, precise, and convincing.” ’ ” (Citation omitted) Grubb v. Delathauwer, 274 Pa.Super. 511, 516, 418 A.2d 523, 526 (1980); see generally McHenry v. Stapleton, 443 Pa. 186, 278 A.2d 892 (1971). We are satisfied, however, that the appellants have met their burden.

Instantly, we are presented with evidence of a strong bond of affection between Mr. Hanley and his daughter, Marie; that she was the actual object of his bounty; that Mr. Hanley was anxious to place any gift of stock for his daughter out of the reach of the federal tax collectors and to assure himself that she would be attended to and cared for the rest of her life. To accomplish all this, Mr. Hanley transferred stock on behalf of his daughter to Anna and Thomas, who were the only two of his four other children residing in Bradford, Pa., and could, therefore, monitor the trust. Additionally, we have evidence that a few days after this stock transfer, Mr. Hanley executed his Will but saw no need to make any allowances for Marie’s well-being therein. In fact, he specifically noted'in the Will that “provisions” for Marie were already formulated “heretofore” to provide for her wants. In compliance with such “provisions” Anna and Thomas took steps to adhere to their father’s wishes.

Consequently, based on the aforesaid, we are satisfied that the appellants’ established an oral trust in the disputed items of property, see Keller v. Keller, supra; see generally In re Estate of Trbovich, supra, and that a resulting trust in the stocks and additions thereto was created in favor of those residuary beneficiaries under the Will of Mr. Hanley. The lower court’s order being to the contrary, it is herein reversed and the case is remanded for the determination of the proper manner in which the assets in question are to be distributed and of the respective recipients thereof.

Before bringing this case to a close, we need to address the contention of the heirs of Anna H. Bird. They urge that “the lower court err[ed] in failing to conclude that the transfer of certain securities by William L. Hanley to Anna H. Bird and T. Edward Hanley in 1932 was an outright transfer of said stock to Anna H. Bird and T. Edward Hanley, vesting complete ownership and legal title in said stock in Anna H. Bird and T. Edward Hanley[.]” (Brief for heirs of Anna H. Bird at xi) We have reviewed the record and the law and find no support for such a claim. Additionally, we mention that to agree with the position of the heirs of Anna H. Bird would be contrary to our main holding as to the averments of the other appellants. Thus, the argument of the heirs of Anna H. Bird is found to be meritless and the lower court’s order, as it deals with them, is affirmed.

We reverse the lower court’s order as it pertains to the appellants and remand for proceedings consistent with this Opinion. However, we affirm the lower court’s order as to its denial of the claim of the heirs of Anna H. Bird.

Jurisdiction is not retained by this Court.

JOHNSON, J., files a dissenting statement.

JOHNSON, Judge,

dissenting:

I respectfully dissent. Our case law is exigent in demanding clear and convincing evidence before an oral trust will be found. See, e.g., In Re Estate of Trbovich, 488 Pa. 583, 413 A.2d 379 (1980) (clear, precise, unambiguous, of the highest probative value). Sechler v. Sechler, 403 Pa. 1, 169 A.2d 78 (1961) (clear, precise and indubitable); Gribbel v. Gribbel, 341 Pa. 11, 17 A.2d 892 (1941) (clear, precise, indubitable, definite and convincing); Popilock v. Piernikoski, 161 Pa.Super. 587, 56 A.2d 326 (1948) (clear, precise and indubitable). I am not in agreement with the majority in this case that the evidence from which the majority finds an oral trust meets these requirements. The naked facts, separated from any inferences, are that (1) Mr. Hanley gave $48,000.00 in stock certificates to four of his five children, and an extra $48,000.00 to two of the same four; (2) Mr. Hanley in his will a few days later referred to provisions he had already made for his fifth child, Marie, and provided further in case those prior provisions should prove inadequate for her care and maintenance; (3) some years afterwards the children to whom the extra $48,000.00 had been given, Anna and T. Edward, began to refer to themselves as trustees.

I agree with the majority that the tax returns are not probative evidence in this matter. But I do not agree that the evidence presented to us is sufficient to prove the establishment of an oral trust in Anna Bird and T.E. Hanley for the benefit of their sister Marie. I would therefore affirm the order of the lower court.

      . Mr. Hanley had a sixth child, Lauretta, who died in 1918, but was survived by a daughter, Jean Dorn. In the instant case, Jean Dorn’s estate is an appellee.

      . In the case at bar, albeit the heirs of Anna H. Bird also have appealed from the lower court’s order, the use of the term “appellants” herein will refer specifically to: 1) Tullah Hanley; 2) Dennis W. Hillier, guardian ad litem for William L. Hanley, Jr.; and 3) the heirs of Gladys Leahy. Tullah Hanley, who is the surviving spouse of Thomas E. Hanley and the sole residuary beneficiary of his estate, asserts an argument that is consistent with that proffered by Dennis W. Hillier. That is, that the assets given by Mr. Hanley to Thomas E. Hanley and Anna H. Bird were in trust for Marie, and that upon Marie’s death a resulting trust of the principal occurred and title to the assets reverted back to Mr. Hanley’s estate for distribution. This argument is identical to that asserted by the heirs of Gladys Leahy.
      As for any other points raised by Tullah Hanley in her brief to this Court, we find that they were not specifically raised below, and, therefore, are waived. Pa.R.Civ.P. 1038(d).

      . We note that a brief has been filed on behalf of John F. Dorn and Dale F. Dorn, joint executors of the estate of Jean Forster Dorn. Therein, the appellees request that we affirm the order of the Orphans’ Court.

      . We take issue with the lower court’s attempt to minimize the dollar value of the stocks involved in the transfer by characterizing “[t]he amount given to Marie [ ] as no[t] extravagant ... [.]” (Lower Court Opinion at 15) Quite the contrary, by today’s monetary standards the stocks, valued in the amount of $48,000.00 in 1932, would be the equivalent of a $350,000.00 investment in the market place. Certainly, this is a sizeable investment to leave in the hands of any person, let alone an incompetent, for the purposes of managing and ultimate dispersal.

      . We, as a result of such finding, dismiss the determination by the lower court that Anna and Thomas were holding the assets in question as guardians for Marie. To start with, no evidence appears from our review of the record to indicate that such supervisory status was intended by Mr. Hanley. This is especially so if one considers that a trustee has legal title to the property, whereas a guardian does not but merely has certain powers and duties to deal therewith for the benefit of the ward. Moreover, the ward, in a guardianship situation, has title to the property. Restatement (Second) of the Law of Trusts, § 7 Comment (a). Here, Anna and Thomas had legal title to the trust assets. Marie only had a life estate, not legal title to the assets.
      Next, since Marie was an incompetent, although not judicially determined to be such, any guardian would have had to be appointed by the court of common pleas. See In re Kreider’s Estate, 17 Fiduciary 290, 11 Lebanon 122 (1966) (guardian can only be appointed by a court, while a trustee may or may not be so appointed); see also 20 Pa.C.S.A. § 5511 & 5512 (1975). This did not occur here.
      Lastly, we find no evidence to establish the existence of Anna and Thomas as “de facto guardians.” See Beilstein’s Estate, 147 Pa. 85, 23 A. 349 (1892); Vanartsdalen v. Vanartsdalen, 14 Pa. 384 (1850).