author: HESTER, Judge:

text:
    446 A.2d 621
    In the Interest of JOHN W., A Minor. Appeal of JOHN W. In the Interest of ROLAND H., A Minor. Appeal of ROLAND H.
    Superior Court of Pennsylvania.
    Argued June 24, 1981.
    Filed June 4, 1982.

      Robert G. Schwartz, Philadelphia, for appellants.
    Nancy D. Wasser, Assistant District Attorney, for Commonwealth, participating party.
    Before HESTER, CAVANAUGH and DiSALLE, JJ.
   HESTER, Judge:

These appeals are taken from the September 17, 1980 Orders entered in the Philadelphia Court of Common Pleas and denying the appellants’ application for the expungement of their juvenile records. We reverse and remand for a hearing on the issue of whether the Commonwealth’s interest in maintaining the records is greater than the appellants’ interest in having them expunged.

At the age of 18, the appellant, John W., was charged with theft, brought before the Philadelphia Juvenile Court on June 22, 1979 and placed on consent decree probation. John W’s probationary period expired on December 22, 1979; on February 5, 1980, he filed an application to expunge the arrest and court records.

Appellant, Roland H., was 17 years old when he appeared before the Philadelphia Juvenile Court for an alleged auto theft and related charges. He was placed on six months probation in accordance with the entry of a consent decree. The probation period expired on December 5, 1979, and on February 21, 1980, he filed an application to expunge as well.

A hearing for both applications was held on September 17, 1980, at which time Orders denying expungement were entered. These appeals followed; they were consolidated by Order of the Pennsylvania Superior Court, dated January 12, 1981.

We must first resolve whether the Criminal History Record Information Act (CHRIA), 18 Pa.C.S.A. § 9101 et seq., is applicable to this appeal. Prior to the enactment of CHRIA, the decision whether to expunge juvenile records was arrived at solely after a delicate balancing of the Commonwealth’s interest in preserving the records and the individual’s interest in avoiding the myriad disadvantages of living with a juvenile record. See Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976); Commonwealth v. Briley, 278 Pa.Super. 363, 420 A.2d 582 (1980); Commonwealth v. Welford, 279 Pa.Super. 300, 420 A.2d 1344 (1980). Unless upon cause shown, § 9123 of CHRIA renders mandatory the expungement of juvenile records where (1) a complaint is not substantiated or the petition filed as a result of the complaint is dismissed other than via an informal adjustment; (2) 5 years lapsed since final disposition or discharge without further criminal incident; or (3) the individual is 21 years of age or older and a court orders expungement.

CHRIA became effective January 1,1980; both applications for expungement were filed by the appellants a little later in 1980. Appellants argue that the date of the filing of the application is not determinative; rather, they insist that the time of entry of the consent decree determines whether CHRIA is applicable. The dates of the various stages of the juvenile proceedings do not concern us. Even if the applications to expunge were filed prior to the effective date of CHRIA, the statute would still apply, providing such retroactive application was not violative of ex post facto principles.

Ex post facto laws were delineated in the early decision of Calder v. Bull, 3 U.S. 386, 3 Dall 386, 1 L.Ed. 648 (1798). An ex post facto law can take several forms. It is one which makes an act, committed before passage of the law and which was innocent when committed, a criminal offense; one that makes a crime greater than when committed; one that inflicts greater punishment than that fixed by the law when the crime was committed; or, finally, one that alters legal rules of evidence and receives less or different testimony than the evidentiary rules required when the crime was committed. § 9123 of CHRIA does not fall within the parameters of any one of these ex post facto categories formulated by Calder, supra. It does not alter the degree and form of punishment; it does not create new or greater criminal offense categories for acts committed prior to its enactment; and it does not affect evidentiary rules. In short, it does not alter a petitioner’s position to his disadvantage. CHRIA is an attempt to settle the rift created by years of applying a balance of interest test to expungement issues. It gives the petitioner a near automatic right to expungement where none existed before.

Since it has been determined that CHRIA’s application to the appellants’ expungement hearing is not violative of ex post facto safeguards, it must be determined whether the juvenile petitions filed against the appellants for their alleged criminal activity were dismissed. If they were dismissed other than as a result of an informal adjustment, and the appellee could not show cause for retention of the records, expungement shall be ordered. The appellee contends that the entry of a consent decree did not dismiss the petition; rather, the petition was simply held inactive for an indefinite period. We do not agree that consent decrees have such an effect. A consent decree binds parties with the same effect as a final decree issued after a full hearing on the merits. Zampetti v. Cavanaugh, 406 Pa. 259, 176 A.2d 906 (1962); Commonwealth v. United States Steel Corporation, 15 Pa. Commonwealth 184, 325 A.2d 324 (1974); Baran v. Baran, 166 Pa.Super. 532, 72 A.2d 623 (1950). Even though consent decrees are arrived at through negotiation and settlement, it does not alter the court’s power to enforce the decrees. Calantzis v. Collins, 440 Pa. 354, 269 A.2d 655 (1970).

We recognize that a juvenile petition may be processed further should the individual violate any conditions of his consent decree probation; and, arguably, the petition may not be dismissed until the probationary period expires. But, where the application for expungement is filed after the juvenile completes probation without criminal incident, the petition is unarguably dismissed. This latter circumstance is reflective of the case before us.

Whether the dismissal of the petition through a consent decree and completion of probation is an informal adjustment, can be resolved by a simple perusal of the Juvenile Act itself. § 6323 of 42 Pa.C.S.A. indicates that an informal adjustment occurs before the filing of a petition, and where the probation officers refer a dependent or delinquent child to any public or private social agency available for assisting in the matter. Conversely, a consent decree is entered after the filing of a petition and before the entry of an adjudication order, and places the child on probation for a specified period of time. 42 Pa.C.S.A. § 6340. A consent decree, by definition, is not the equivalent of an informal adjustment.

We conclude, then, that the petitions filed against both appellants were dismissed by the entry of consent decrees and the completion of the probationary period without violation. Having met the standards of 18 Pa.C.S.A. § 9123(a)(1), an expungement of juvenile arrest and court records shall be ordered unless upon cause shown to the contrary. We must determine, therefore, whether the appellee demonstrated sufficient cause for an order denying expungement.

In Commonwealth v. Briley, supra, the petitioner’s arrest record was expunged after he successfully completed probation as a condition of Accelerated Rehabilitative Disposition. The Briley court held that the balancing of the Commonwealth’s interest with the petitioner’s dictates a consideration of the (1) strength of the Commonwealth’s case; (2) Commonwealth’s reasons for retaining the records; (3) type of offense; (4) defendant’s age and history of employment, criminal activity, drug or alcohol problems; and (5) adverse consequences that petitioner may suffer. The Court concluded that in light of the successful completion of the ARD program and the dismissal of the charges prior to the filing of the application to expunge, the Commonwealth carried the burden of justifying the retention of the criminal records, a task it did not successfully complete. The petitioner in Briley, supra, fortified his case for expungement by introducing evidence of the passing of 5 years since the arrest, the absence of a prior criminal record and premeditated activity, and the infliction of no serious harm.

The Supreme Court, in the recent decision of Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981) viewed a juvenile consent decree in the same fashion as ARD was viewed by the Briley court so that completion of consent decree probation shifted the burden to the Commonwealth for showing cause why the arrest record should remain on file. In fact, the Supreme Court considered the placement in an ARD or consent decree program as not much different than a jury’s acquittal. Pennsylvania did not carry its burden in Wexler, supra, and the Court was impressed with the petitioner’s clean record for 4 years preceding the ex-pungement hearing, the absence of a prior criminal record, her completion of the probation at an earlier stage and her steady employment as a cashier.

We do not know the interests that can be proposed by both appellants and the appellee. The lower court did not conduct a balancing test; it denied the applications for expungement simply because it ruled that a consent decree was an informal adjustment. We reversed that order and remand for a hearing on whether the appellee can show cause why the records should not be expunged under 18 Pa.C.S.A. § 9123. Jurisdiction is not retained.

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


source: Caselaw Access Project

author: ROWLEY, Judge

license: Public Domain

text:
    446 A.2d 624
    COMMONWEALTH of Pennsylvania v. Dennis Ray McFADDEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 12, 1981.
    Filed June 4, 1982.

      Thomas P. Ruane, Jr., Uniontown, for appellant.
    Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and MONTGOMERY, JJ.
   ROWLEY, Judge

This is a direct appeal by Dennis Ray McFadden following his conviction, after trial by jury, of theft by unlawful taking. Appellant alleges: (1) that his trial counsel was ineffective in failing to move to suppress identification evidence; (2) that his right to a speedy trial under Pa.R.Crim.P. 1100 was violated, and (3) that the Commonwealth’s evidence was insufficient to support the jury’s verdict.

The charges against appellant arose out of the theft of the purses of Mrs. Elizabeth Gadd and a friend. Shortly after the incident, Mrs. Gadd described the perpetrator to police as having brown hair worn in a pony tail and a goatee. Mrs. Gadd identified appellant prior to trial from a photographic display containing approximately fifty pictures. It is conceded by the Commonwealth that appellant’s photograph was the only one depicting a man with a pony tail and goatee.

Appellant was arrested and charged on December 8,1978. On June 7, 1979, the Commonwealth filed a petition to extend the time for trial under Pa.R.Crim.P. 1100, alleging the unavailability of defense counsel. An extension was granted after a hearing at which appellant was present with counsel. No record was made of the hearing.

Trial was held on July 10, 1979. At trial, evidence of the pre-trial photographic identification was introduced and there was also an in-court identification of appellant by Mrs. Gadd. Appellant was convicted, his post-trial motions were denied, and he was sentenced on March 11, 1980.

We find appellant’s argument regarding the sufficiency of the evidence to be without merit. The test of whether the evidence was sufficient to support a conviction is whether, viewing the evidence in the light most favorable to the Commonwealth, the jury could reasonably have found all of the elements of the crime beyond a reasonable doubt. Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975). Appellant’s only argument for the proposition that the evidence was insufficient is that because of Mrs. Gadd’s limited opportunity to observe the perpetrator, her identification testimony was not credible. However, it is within the sole province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Davis, 466 Pa. 102, 113, 351 A.2d 642, 647 (1978); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975); Commonwealth v. Smith, 457 Pa. 638, 641, 326 A.2d 60, 61 (1974). In this case, the jury chose to believe Mrs. Gadd’s testimony and we will not disturb their verdict on this basis.

We turn now to appellant’s argument under Pa.R.Crim.P. 1100. To establish a Rule 1100 claim, a defendant must either file a motion to dismiss the charges against him prior to trial or contest the Commonwealth’s petition to extend the time for trial. Commonwealth v. Davis, 261 Pa.Super. 204, 395 A.2d 1388 (1978). Appellant did not file a pre-trial motion to dismiss the charge. However, since we have no record of the extension hearing held on June 21, 1979, we do not know whether appellant opposed the Commonwealth’s petition or concurred in the request for an extension. Therefore, it will be necessary to remand this case for an evidentiary hearing to determine whether appellant has waived his Rule 1100 claim by failing to oppose the Commonwealth’s petition to extend. If it is determined that the Rule 1100 claim has been waived, the lower court will proceed to conduct an evidentiary hearing on the issue of effective assistance of counsel, which is discussed below. If it is determined that the Rule 1100 claim was not waived, the court must then conduct an evidentiary hearing to determine whether the Commonwealth complied with the requirements of Rule 1100.

We are aware that in Commonwealth v. Akridge, 492 Pa. 90, 422 A.2d 487 (1980), the Supreme Court held that, “a remand for a ‘second bite’ of the Commonwealth’s evidentiary burden on the ‘due dilligence’ requirement of Rule 1100 is”, contrary to their prior instructions. However, this Court has held that the prohibition is to be applied only to appellate review of extension hearings conducted after the announcement of the rule in Akridge. Commonwealth v. Carr, 292 Pa.Super. 137, 436 A.2d 1189 (1981). In the present case, the extension hearing was held on June 21, 1979, almost a year before Akridge was decided. Therefore, a remand for an evidentiary hearing on the Rule 1100 issue is proper. If it is determined that the Commonwealth failed to comply with the requirements of Rule 1100, appellant will be discharged. See Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979). If it is determined that the Commonwealth has complied with Rule 1100, the lower court will proceed to determine the question of ineffective assistance of counsel.

Appellant’s final claim is that trial counsel was ineffective. Since he is represented on appeal by counsel other than trial counsel, and since the grounds for the appeal appear of record, the issue of ineffective assistance is properly raised for the first time on direct appeal. Commonwealth v. Burch, 248 Pa.Super. 8, 13, 374 A.2d 1291, 1293 (1977). A two-step analysis has been developed to review allegations of ineffective assistance of counsel. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). First, the reviewing court must determine whether the issue underlying the charge of ineffectiveness is of “arguable merit”. Commonwealth v. Burton, 491 Pa. 13, 18, 417 A.2d 611, 613 (1980). If it is, then the court must determine whether trial counsel’s action, or inaction, had any reasonable basis designed to effectuate his client’s interest. Comm. ex rel. Washington v. Maroney, 421 Pa. 599, 235 A.2d 349 (1967).

Based on the record before us, there are some indications that the photographic display may have been overly suggestive. If a pre-trial photographic identification procedure is so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification, not only is evidence of the pre-trial identification inadmissible, but a subsequent in-court identification may also be inadmissible. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed. 1247 (1968); Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974). Thus, appellant’s allegation of ineffective assistance of counsel is at least of arguable merit.

Next, it must be determined whether trial counsel’s failure to move for suppression of the identification evidence had any reasonable basis designed to effectuate appellant’s interests. Commonwealth v. Ramsey, 259 Pa.Super. 240, 393 A.2d 806 (1978). There is no evidence in the record before us to explain why counsel failed to challenge the identification evidence. When it cannot be determined from the record whether counsel acted pursuant to a reasoned course, the proper remedy is to remand the record to the trial court for an evidentiary hearing. Commonwealth v. Morin, 477 Pa. 80, 84, 383 A.2d 832, 833 (1978).

It should be noted that the photographs in question are not now a part of the record. At the evidentiary hearing, the photographic display should be made a part of the record in order to aid this court in the event that an appeal is taken from the order of the trial court.

Therefore, the judgment of sentence will be vacated and the case remanded to the trial court for the purpose of holding an evidentiary hearing to consider appellant’s Rule 1100 and ineffectiveness of counsel claims and to make such order as it may then determine to be appropriate.

The judgment of sentence is vacated and the case is remanded to the trial court for further proceedings in accordance with the foregoing opinion. Jurisdiction is relinquished.

      . This case was assigned to the writer on January 5, 1982.

      . The display is not in the record before us.


author: McEWEN, Judge:

text:
    446 A.2d 627
    COMMONWEALTH of Pennsylvania v. Michael Dennis TACKER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 1, 1981.
    Filed June 4, 1982.
    Petition for Allowance of Appeal Denied Nov. 5, 1982.

      Carol K. McGinley, Public Defender, Allentown, for appellant.
    William H. Platt, District Attorney, Allentown, for Commonwealth, appellee.
    Before McEWEN, MONTEMURO and SHERTZ, JJ.
   McEWEN, Judge:

We here review an appeal from a judgment of sentence to life imprisonment for first degree murder and to a consecutive term of ten to twenty years for robbery, both of which were imposed after appellant was convicted by a jury of first degree murder during the commission of an armed robbery. We affirm.

The uncontroverted facts reveal the victim was an attendant at a service station in the village of Cementon, Whitehall Township, Lehigh County, on December 13, 1978, when he was murdered by two gunshots fired at close range during the perpetration of a robbery in which the sum of $139.46 was removed from the victim.

A principal Commonwealth witness was a woman acquaintance of the defendant. She testified that three days before the occurrence the defendant mentioned the robbery of the pertinent gas station because of his need for money. She further testified that on the very evening of the robbery he displayed a gun to her, he told her he intended to rob the gas station and, approximately one hour later, while still holding a gun, he told her he had just robbed the gas station.

Appellant presents seven questions for our consideration, including a contention that the trial judge erred by not permitting the introduction of evidence relating to the admission of this principal witness, two days after her trial testimony, to the psychiatric ward of Allentown Hospital. The trial judge refused to allow in evidence any medical records concerning that admission and refused to allow testimony of a psychiatrist concerning his impressions of her mental state. The defendant could not indicate, however, in his offer of proof, that the proposed evidence was relevant to her ability to observe, remember or recount the matters upon which she had testified. The psychiatrist would not have been able to state there was a relationship between her condition and her testimony; nor did the proffered hospital records provide reference to a relationship between her condition and her testimony.

The learned Justice Samuel J. Roberts, in Commonwealth v. Harris, 492 Pa. 389, 391, 424 A.2d 1245, 1248 (1981), quoting from the Pennsylvania landmark decision of Commonwealth v. Kosh, 305 Pa. 146, 157 A. 479 (1931), repeated the applicable principle:

[M]ere mental derangement on some matter not connected with the subject of the litigation and not affecting the testimonial ability of the witness is not even to be considered by the jury in determining the credibility of the witness.

Judge Robert Lee Jacobs, the eminent former President Judge of this Court, in reviewing Pennsylvania law in this area, reasserted this prevailing principle in a unanimous decision of this Court, Commonwealth v. Butler, 232 Pa.Super. 283, 287, 331 A.2d 678, 680 (1974), when he stated:

The crucial determination that a trial judge must make in ruling on the admissibility of evidence of a witness’s mental instability is whether it is related to the subject of the litigation or whether it affects the testimonial ability of the witness so as to impeach him.

The jury had already been made thoroughly aware of the mental health problems of this witness as a result of an intensive interrogation by counsel for the defendant that covered, inter alia, her history of suicide attempts, a psychiatric hospitalization approximately five years prior to her testimony and a psychiatric hospitalization five months prior to her testimony. The court did not err in its refusal to permit admission of the post-testimony hospital records and the testimony of the psychiatrist.

The appellant also contends that it was prejudicial error for the court to fail to grant his Bighum motion in timely fashion. See Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). The omnibus motion of the defendant included a request that any reference to the prior criminal record of the defendant be excluded from the trial. The trial judge ruled that the Commonwealth was precluded from using the prior burglary conviction for purposes of impeaching the credibility of the defendant if he testified. The court so ruled at the conclusion of the presentation of the case of the Commonwealth, and prior to commencement of the presentation of the defense. The trial judge had, approximately ten days prior to the trial, withheld a ruling upon this motion, and granted permission to the defendant to subsequently raise the issue. The brief of the defendant provides a clear outline, and fervent presentation, of the harm allegedly suffered by the defendant as a result of the failure by the court to earlier rule in favor of the defendant upon this motion. It must be noted, however, that counsel for the defendant had not at any earlier time in the trial, or during the ten day period prior to trial, sought a final ruling on the motion. The defendant did raise other matters with the trial court prior to the selection of a jury but did not seek a ruling from the court on the Bighum motion. The court, in its order ten days before trial, made clear that the defendant was to later renew the motion; it is difficult to accept that the defendant would acquiesce in a delay that would cause the dire consequences of which he now complains. The Commonwealth completed presentation of its case in a fashion that was sterile of reference to the prior criminal record of the defendant. As the brief of the defendant notes, the fundamental purpose of the rule is to balance the potential prejudice from the revelation of a prior criminal record against the right of the defendant to testify on his own behalf. As the court ruled prior to the commencement of the presentation of the defense, and thereby enabled the defendant to testify on his own behalf without fear of impeachment by use of his prior record, that purpose of the rule was achieved.

The remaining five questions concern evidentiary rulings of the judge during the trial, and our study of the brief as well as of the entire record, compels the conclusion that the court ruled properly in each instance.

While we here address two of the questions presented for consideration, it is our view that the learned Lehigh County Common Pleas Court Judge Maxwell E. Davison has very ably addressed, and quite correctly ruled, upon all of the contentions of the appellant in his comprehensive opinion.

Judgment of sentence affirmed.

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

      . The trial judge, pursuant to a stipulation between counsel for the parties, tried the defendant without a jury upon the charge of a former convict owning a firearm. The trial judge found the defendant guilty of that offense. This procedure was employed as the defendant had been convicted, just two years earlier, of a burglary of the very same gas station involved in this case.

      . The brief of appellant sets forth in its Statement of Questions Involved the following issues:

        A. Did the trial court abuse its discretion in refusing to permit defendant to prove that a Commonwealth witness was admitted to a hospital psychiatric ward two days after she testified in the case, where, in the offer of proof, there was no offer to show any relationship between the hospital admission and the witness’ ability to observe, recall or testify?
      B. Did the trial court err in permitting a ballistics expert to testify as to possible makes of weapons which could have fired the bullets recovered at a homicide, where such testimony was based, in part, on information received from another ballistics laboratory?
      C. Did the court err in hearing defendant’s Bighum motion at the close of the Commonwealth’s case, but before the defense opened to the jury and before defendant elected to testify?
      D. Did the court err in admitting into evidence the clothing of the victim for the purpose of showing bullet paths and powder burn evidence?
      E. Did the Commonwealth “impeach” its own witness, the defendant’s father, when it presented contradictory evidence?
      F. Did the court err in sustaining an objection to a defense witnesses (sic) testimony concerning the effect of chroming on the inside of a gun barrel?
      G. Did the court err in its rulings permitting the Commonwealth to present certain rebuttal testimony?


text:
    446 A.2d 630
    Evelyn TOWNSEND and Catherine Judith Townsend v. Darryl E. R. TOWNSEND, Appellant.
    Superior Court of Pennsylvania.
    Argued June 1, 1981.
    Filed June 4, 1982.

      David C. Patten, West Chester, for appellant.
    Paul C. Van Dyke, Media, for appellees.
    Before McEWEN, MONTEMURO and SHERTZ, JJ.
   McEWEN, Judge:

We here consider an appeal from an Order of the Chancellor expressing interpretation of a property settlement agreement and directing appellant to complete certain payments provided for by that agreement. We affirm.

Evelyn Townsend and Darryl E. R. Townsend were married in 1957. Two daughters were born of the union including Catherine Judith Townsend, an appellee herein, who was born on November 19, 1960. The parents, prior to a 1973 divorce, entered into a property settlement agreement which is the subject of this equity proceeding. Two paragraphs of that property settlement agreement are the subject of this appeal, namely:

3. Husband shall pay to Wife the sum of $1,000.00 per month calculated as follows: $350 per month for Wife and $325 per month for support of each child. Payment of Wife’s support shall continue for lifetime of Husband or until such time as Wife may remarry or dies. Payments to each child shall continue until each arrives at the age of eighteen (18) years or for as long as such child attends a college or university on a full time basis, not to exceed four years. Emancipation before that time will end child’s support. Remarriage of Wife will not affect the amount of children’s support. Upon the emancipation or graduation of the youngest child as aforesaid, it is agreed that Wife’s support shall remain at $350 per month. 6. Husband agrees that he will pay all tuition, fee and book expenses incident to the post-high school education of their said children, including undergraduate college, provided he is consulted in advance of registration of the child at training school or college and his approval is given, it being understood that such approval is not to be unreasonably or capriciously withheld. However, if Husband does not consent to the training school or college selected by the Wife and children, he shall be bound to pay tuition fees for a training school or college equivalent to that of a non-boarding student at a college or school in the area of the residence of the Wife and children. It is further agreed that Wife shall pay room, board and living expenses of each child at such post-high school institution up to $1,000 (One Thousand Dollars) per year. Husband shall pay any reasonable required living expense beyond that figure.

The appellant resides in Illinois while Catherine Judith resides with her mother in Pennsylvania and attends Mount Holyoke College in Massachusetts. While the Chancellor made certain rulings required by reason of the fact that Catherine Judith is pursuing her college studies at an institution outside the area of her residence, only one of those issues is the subject of an appeal to this Court.

As we review the case, the following facts form the basis of the contention of the appellant:

Paragraph three provides that he “shall pay to Wife the sum of $1,000.00 per month calculated as follows: $350 per month for Wife and $325 per month for support of each child. . . . Payments to each child shall continue until each arrives at the age of eighteen (18) years or for as long as such child attends a college or university on a full time basis, not to exceed four years.”
Paragraph six sets forth the agreement of the father and mother that the mother “shall pay room, board and living expenses of each child at such post-high school institution up to $1,000 (One Thousand Dollars) per year. Husband shall pay any reasonable required living expense beyond that figure.”
The fees for room and board at Mount Holyoke College at the time of the proceedings before the Chancellor was $2,270.

The Chancellor, the learned Chester County Common Pleas Court Judge Lawrence E. Wood, properly framed the issue under appeal as follows:

Insofar as $1,000 is not sufficient to cover Catherine’s “room, board and living expenses” at Mount Holyoke (as those terms are used in paragraph 6), may Father get credit for all or any part of his “support” payment under paragraph 3 for the excess “living expense” which he is obliged to pay under paragraph 6?

Judge Wood, in his adjudication of this issue, declared:

[W]e note at the outset that if we give Father credit for the $325 per month he has been paying under paragraph 3, we have effectively denied any content or meaning to the stricture concerning excess living expenses in paragraph 6. We think the better interpretation is to recognize that Mother’s expenses for her daughter continue even though she is away at college, so that the $325 payable under paragraph 3 was not meant to be used to defray “living expenses” under paragraph 6. The latter seems to us to be intended to refer to room, board, toiletries, and the like, incurred wholly as the result of being at college.
We were given little evidence on what living expenses might cost oyer and above the room and board, but we do note that room and board itself was $2,270 last year and will be almost $2,600 this year. We think that Daughter could use her $325 per month toward personal toiletries and the like, and so we will direct that Father’s “living expense” obligation include only the “excess room and board” costs.

The Pennsylvania Supreme Court considered a somewhat similar situation in Wiegand v. Wiegand, 349 Pa. 517, 37 A.2d 492 (1944). The father had agreed to pay the sum of $125.00 per month for the support of each of his children during minority and, in addition to that monthly payment, to pay for school tuitions and expenses as well as for a four year college course for each child. The father sought to reduce the monthly payments for support and maintenance from $125.00 per month to $62.50 per month while his daughter was away at college. The court directed the father to provide for payment to the mother of the full amount for maintenance and support of the child while away at college. The court concluded that the father had intended that there would be a family home for the benefit of the children and that such a home could not be dismantled in part or diminished in size while a particular child was away at school. While the agreement in Wiegand expressly noted a family home would be maintained, a similar intention is every bit, although impliedly, as clear in the instant case.

The father in Wiegand sought, of course, to enlarge the agreement that had been negotiated and concluded. The Supreme Court observed that had the father desired another arrangement, the agreement should have been so written. The same observation is every bit as pertinent to the request here made by appellant.

It is indisputable that absent a manifest abuse of discretion, an appellate court will not reverse the decision of an equity court. Long John Silver’s, Inc. v. Fiore, 255 Pa.Super. 183, 386 A.2d 569 (1978).

There was no abuse of discretion in this case. The conclusion of the Chancellor is not only an eminently equitable decision under the facts of this case but also quite legally sound.

Order affirmed.

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


author: BECK, Judge: SPAETH, Judge,

text:
    446 A.2d 633
    COMMONWEALTH of Pennsylvania v. James CLARK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1981.
    Filed June 4, 1982.
    Petition for Allowance of Appeal Denied Oct. 12, 1982.

      Harvey W. Robbins, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before SPAETH, BECK and LIPEZ, JJ.
   BECK, Judge:

This appeal arises from an incident on March 23, 1979 wherein Hilary Rossi was sexually assaulted and robbed. Appellant was convicted on July 23, 1979 by a jury of rape, robbery, unlawful restraint and possession of an instrument of crime.

Appellant timely filed post-trial motions on July 31, 1979, and argument on the motions was scheduled for September 26, 1979. On the day scheduled for motions, appellant escaped from custody and was not returned to this jurisdiction until July 25, 1980.

The lower court on November 8,1979 dismissed appellant’s post-trial motions over his counsel’s objection. He was sentenced on September 17, 1980 to incarceration for a period of twelve to twenty-five years.

Appellant alleges, inter alia, that he is entitled to a remand for reinstitution of post-verdict motions because he is no longer a fugitive from justice and is now subject to the jurisdiction of the court. In advancing that claim, appellant relies principally upon Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975). After a conviction and the timely filing of motions for a new trial and in arrest of judgment, but before oral argument on the motions, Galloway escaped from prison. The trial court dismissed his post-trial motions. After he was apprehended and sentenced, his counsel filed supplemental motions because Galloway was a fugitive from justice when the original motions were filed. Those supplemental motions were also dismissed. An appeal was filed in the Supreme Court and on the day listed for oral argument, the court was informed that he had once again escaped. The court continued the hearing pending his return. Upon his return, the court denied the Commonwealth’s motion to dismiss because Galloway was then subject to the jurisdiction of the court and therefore responsive to any judgment rendered. The Galloway court remanded to the trial court for reinstatement of the post-trial motions.

It is clear that the trial court in Galloway, as in the instant case, was without discretion in denying defendant’s post-verdict motions as long as he remained a fugitive outside the court’s jurisdiction. Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976). It is equally clear, however, that when appellant returns to the court’s jurisdiction, this court may grant leave to re-file post-trial motions. Commonwealth v. Albert, 260 Pa.Super. 20, 393 A.2d 991 (1978); Commonwealth v. Borden, 256 Pa.Super. 125, 389 A.2d 633 (1978). While it is within our discretion to remand for reinstatement, as did the Galloway court, we are not constrained to do so.

We conclude instead that the trial court did not abuse its discretion in declining to reinstate appellant’s post-trial motions even after he was returned to its jurisdiction. We premise our conclusion upon a theory of waiver as propounded in Commonwealth v. Boyd, 244 Pa.Super. 98, 100-101, 366 A.2d 934, 935 (1976):

A defendant who runs away after having been convicted of the charge or charges against him waives his right to a judicial review of his case. If he thereafter returns it is a matter of discretion of the court whether or not the circumstances justify a reinstatement of his post-trial motions or applications.... We find that the appellant by becoming a fugitive lost his right to a review of his post-trial motions and that the trial court did not abuse its discretion in refusing to consider the motions upon his return to the jurisdiction.

Appellant does raise one claim on appeal that cannot be waived. That is, was he competent to stand trial? The test for competency was enunciated in Commonwealth v. Tyson, 485 Pa. 344, 402 A.2d 995 (1979):

We have concluded however that when the issue presented is whether a person was competent to stand trial, the waiver rule is not applicable. See Commonwealth v. Marshall, 456 Pa. 313, 319, 318 A.2d 724, 727 (1974) .... The test of an accused’s competency to stand trial is his “ability to comprehend his position as one accused of murder and to cooperate with his counsel in making a rational defense.” (Citations omitted.) Commonwealth ex rel. Hilberry v. Maroney, 424 Pa. 493, 495, 227 A.2d 159, 160 (1967). A finding of competency by the trial court will not be reversed unless it is unsupported by the record. Commonwealth v. Kennedy, 451 Pa. 483, 305 A.2d 890 (1973).

Id. 485 Pa. at 349, 402 A.2d at 997. See also Commonwealth v. Robinson, 494 Pa. 372, 431 A.2d 901 (1981); Commonwealth v. Higgins, 492 Pa. 343, 424 A.2d 1222 (1981); Commonwealth v. Nelson, 489 Pa. 491, 414 A.2d 998 (1980); Commonwealth v. Pifer, 284 Pa.Super. 170, 425 A.2d 757 (1981).

We review the evidence as presented by appellant to determine if his testimony exhibited cooperation with his counsel in presenting a rational defense. This we believe to be determinative of his competency to stand trial.

Appellant offered as a defense that Hilary Rossi consented to sexual intercourse and being bound and gagged. Appellant testified that he entered a bakery where the prosecutrix was employed with the intention of buying himself a birthday cake. (N.T.7.20.) He offered her a “joint” (marijuana cigarette). She locked the front door of the bakery, and they walked to the back of the bakery where they smoked the “joint.” (N.T.7.21.) Appellant got up as if he intended to leave, and Mrs. Rossi asked him why he was in such a hurry. At that point she approached him and placed her hand on the front of his pants, after which they engaged in sexual intercourse. (N.T.7.22.) Appellant subsequently asked her for money, and she gave him the money from her purse. He then suggested that she give him the money in the cash register, an idea at which she initially balked. She subsequently agreed to being bound and gagged so that it would appear as if the bakery had been robbed and that she had been subdued by force. (N.T. 7.26-29.)

That the above story may appear fantastic is not at issue here. What we must ascertain is whether appellant cooperated with his counsel in advancing a defense consistent with innocence. It is clear that had the jury believed appellant’s account of events, he would have been acquitted of the charges brought against him. See Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 491 (1980); Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980).

The jurors disbelieved appellant’s account and believed Hilary Rossi’s story that he “stuck a gun in my neck and told me to be quiet or he was going to blow my brains out.” (N.T. 5.129.) She testified that he then raped her.

Appellant’s testimony was coherent, rational, and consistent with his purpose of proving his innocence of the charges. Accordingly, we find no reason to disturb the finding of the lower court as to appellant’s competency to stand trial.

Judgment of sentence is affirmed.

SPAETH, J., files a dissenting statement.

SPAETH, Judge,

dissenting:

I agree that it was within the discretion of the lower court to dismiss appellant’s post-trial motions even after he was returned to its jurisdiction. However, the lower court in exercising its discretion placed some emphasis on the fact that appellant never petitioned to have his post-trial motions reinstated, and appellant argues now that trial counsel was ineffective in failing to request reinstatement. Insofar as this is appellant’s first opportunity to assert trial counsel’s ineffectiveness, he should not be held to have waived this argument.

The case should be remanded to allow the lower court to consider whether trial counsel was ineffective in failing to request reinstatement.

      . We note, however, that Galloway is distinguishable from the instant case. In Galloway, appellant “[became] a fugitive after appellate jurisdiction [had] already attached____” Commonwealth v. Albert, 260 Pa.Super. 20, 22, 393 A.2d 991, 992 (1978) (emphasis added). See also Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981).

      . Because we find that appellant by escaping from prison waived his right to judicial review of this case, we do not address the merits of his other claims.

      . It should be noted that the trial judge did conclude that appellant was competent to stand trial. (N.T.3.8-3.9, 7.119.) While no psychiatric examination was conducted, we do not find such an examination to be a prerequisite to a determination of competency.


author: JOHNSON, Judge: CIRILLO, Judge,

text:
    446 A.2d 635
    Mary E. CONNOR and Earl T. Connor, her husband, Appellants, v. ALLEGHENY GENERAL HOSPITAL.
    Superior Court of Pennsylvania.
    Submitted April 13, 1981.
    Filed June 4, 1982.
    Petition for Allowance of Appeal Granted Sept. 20, 1982.

      Leonard E. Price, Pittsburgh, for appellants.
    Louis B. Loughren, Pittsburgh, for appellee.
    Before CAVANAUGH, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

Appellants appeal from the Orders of February 6, and April 7, 1980 which granted Appellee’s Motion for Summary Judgment and dismissed Appellants’ complaint in trespass and assumpsit. We affirm.

The facts of the instant case emerge as follows. Appellant Mary E. Connor, an in-patient at Allegheny General Hospital, submitted to a barium enema procedure on November 26, 1973. During the procedure, the barium solution extravasated into the peritoneal cavity, causing severe pain and requiring emergency surgery. Appellants filed a complaint on October 15, 1975, alleging, inter alia, negligence by the Hospital individually and acting through its agent, servant or employee in perforating Appellant Mary E. Connor’s colon during the performance of the enema procedure. The complaint also alleged breach of implied warranties for failure to exercise the proper degree of care and skill.

On February 22, 1977, Appellants filed a pre-trial statement which included a report by Cyril H. Wecht, M.D., that Appellant Mary E. Connor had sustained a perforation of the colon and extravasation of barium, as a result of the barium enema. The case was called to trial on November 28, 1977, but counsel for Appellants was unable to proceed because their expert witness, Dr. Wecht, refused to testify, citing his lack of expertise in this area of medicine. The case was struck from the issue list. On February 8, 1979, Appellants filed a Supplemental Pre-Trial Statement to which was attached the report of a different expert, Bernard Neff, M.D. The report stated that the extravasation was caused by perforation of the diverticulum, although Dr. Neff could not say with certainty whether the perforation occurred prior to or by means of the enema procedure. The report also stated, inter alia, that there was undue delay both in diagnosis and performance of surgery to correct the barium extravasation.

A Motion to Amend Complaint to include an additional allegation of negligence pursuant to the Restatement of Torts, Section 323(a), was denied on November 9, 1979, without prejudice to Appellants’ right to present the same to the trial judge. The case was called for trial on November 21, 1979. Prior to jury selection, Appellants presented another Motion to Amend Complaint, different from that denied on November 9, 1979, setting forth, inter alia, new and different allegations of negligence involving the Hospital’s failure to recognize and treat the barium extravasation, based on the statement of their new expert witness. This Motion was denied by the trial judge.

The trial court agreed with both Appellants’ and Appellee’s counsel that without the amendment, the new expert witness testimony could not sustain the cause of action under the original complaint, because of the expert’s opinion that there was no evidence that the barium enema tip caused perforation of the colon, as alleged in Appellants’ original complaint. Appellants’ counsel then declined to proceed with the trial and upon a discussion with Appellee and the court, agreed to submit the case on a case stated basis. Based on Appellants’ counsel’s failure to submit the case on this basis, Appellee filed a Motion for Summary Judgment which was granted and the complaint dismissed on February 6, 1980.

The appeal alleges that (1) it was error to deny Appellants’ Motion to Amend Complaint, (2) the court erred in dismissing the complaint and (3) the court erred in striking its Order of February 6, 1980 and then placing the Motion for Summary Judgment on the court en banc argument list.

It is clear that while amendments to pleadings are freely allowed under the Rules of Civil Procedure, they are subject to the qualification that an amendment may not introduce a new cause of action after the statute of limitations has run. Laursen v. General Hospital of Monroe County, 494 Pa. 238, 431 A.2d 237 (1981); Kuisis v. Baldwin-Lima-Hamilton Corp, 457 Pa. 321, 319 A.2d 914 (1974); Junk v. East End Fire Department, 262 Pa.Super.Ct. 473, 396 A.2d 1269 (1978). A primary reason for this rule is to prevent prejudice to the adverse party. Junk, supra.

The decision to grant or deny permission to amend is within the discretion of the trial court and we will reverse that decision only upon a showing of a clear abuse of discretion. Geiman v. Board of Assessment and Revision of Taxes, 412 Pa. 608, 614, 195 A.2d 352, 355-56 (1963).
A cause of action in negligence has been defined as the negligent act or acts which occasioned the injury for which relief is sought. Cox v. Wilkes-Barre Railway Corporation, 334 Pa. 568, 570, 6 A.2d 538, 539 (1939); Martin v. Pittsburgh Railways Company, 227 Pa. 18, 20, 75 A. 837, 837 (1910). A new cause of action does not exist if plaintiffs amendment merely adds to or amplifies the original complaint or if the original complaint states a cause of action showing that the plaintiff has a legal right to recover what is claimed in the subsequent complaint. Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 460, 219 A.2d 676, 678-79 (1966); Arner v. Sokol, 373 Pa. 587, 591, 96 A.2d 854, 855-56 (1953); 3 Standard Pennsylvania Practice 682. A new cause of action does arise, however, if the amendment proposes a different theory or a different kind of negligence than the one previously raised or if the operative facts supporting the claim are changed. 2B Anderson Pennsylvania Civil Practice, §§ 1033.28 and 1033.31.

Junk v. East End Fire Department, id., 262 Pa.Super. at 490-91, 396 A.2d at 1277.

The statute of limitations had expired by the time the amendments to the complaint in the instant case were submitted in November of 1979. It was not until February 8,1979, that the Appellants filed their supplemental pre-trial statement which included their new expert’s report. By this point in time, many of the depositions had already been taken, and a defense prepared on the allegations found in the original complaint. Although the second expert’s report did not follow the theory of negligence advanced in the original complaint, namely negligence in perforating the colon, the mere receipt of the expert’s report, alleging, inter alia, undue delay in performing surgery, would not have constituted notice to Appellee of either a change in Appellants’ theory of the case or an intention by Appellants to seek to amend their complaint nine months later on the date of the trial. It is clear, therefore, that if the Motion to Amend Complaint amounted to a new cause of action being presented, then the lower court correctly refused the amendment, because Appellee would have been prejudiced in its attempt to defend against allegations of negligence not incorporated in the pleadings until the date of trial.

No comprehensive definition of “cause of action” has been adopted, but in a negligence action it has been defined as “the negligent act or acts which occasioned the injury.” Saracina v. Cotoia, 417 Pa. 80, 85, 208 A.2d 764, 767 (1965).

Under the facts in the instant case, the second amendment proffered by Appellants sought to add new allegations of negligent acts by proceeding on a different theory. The original complaint alleged, inter alia, the negligence of Appellee in perforating the sigmoid colon during the performance of the enema and causing the extravasation of the barium. Appellants’ second Motion to Amend added, inter alia, the acts of (1) alleged improper diagnosis and appreciation of the extent of the extravasation and (2) failure to recommend and perform immediate surgery.

These amendments clearly involved new and different negligent acts neither contemplated by nor inferable from the original complaint; they deal with acts which occurred after the acts of negligence alleged in the original complaint. The alleged negligence in perforating the colon and the extravasation of the barium are distinct in theory from the alleged negligence of failing to properly remedy the extravasation and perform immediate corrective surgery. There is also clear prejudice to Appellee in permitting such an amendment on the date of trial and thereby requiring a different defense to be presented at trial.

Therefore, as no abuse of discretion by the trial court has been shown, there was no error in refusing the Motion to Amend.

Appellants’ second allegation of error concerns the lower court’s dismissal of the complaint pursuant to Appellee’s Motion for Summary Judgment. Appellants had failed in their attempt to amend their complaint to conform the allegations to the prospective proof as discussed supra. Their original expert, Dr. Wecht, refused to testify. Appellants’ new expert was unable to conclude that the perforation and extravasation of the barium amounted to negligence, but only that the remedial measures, taken after the extravasation, were done in a negligent manner. Therefore, Appellants had no expert testimony to prove the negligence asserted in their original complaint.

Counsel for Appellants therefore discussed the submission of the case on a case stated basis after advising the court that he did not wish to proceed with jury selection. In effect, counsel agreed that a non-suit was the only feasible result at that point in time. Counsel for Appellants failed to prepare the necessary materials for submission of the case on a case stated basis and Appellee proceeded to file a Motion for Summary Judgment.

We find no error, as Appellee was entitled to judgment as a matter of law. Appellants argue that their former expert, Dr. Wecht, should be required to testify, if necessary. However, as Dr. Wecht refused to testify because he was not a qualified expert in the area of perforation of the colon during the barium enema procedure, he would not be competent to testify as an expert. See Erschen v. Pennsylvania Independent Oil Co., 259 Pa.Super.Ct. 474, 393 A.2d 924 (1978). Therefore, as counsel for Appellants failed to submit the case on a case stated basis, and because there remained no issue as to any material fact that could have been proved by Appellants pursuant to their original complaint after denial of their Motion to Amend Complaint, the grant of Summary Judgment was proper.

The order dated February 6, 1980 is affirmed.

CIRILLO, J., files a dissenting opinion:

CIRILLO, Judge,

dissenting.

I respectfully dissent.

Initially, the appellants contend on appeal that the court below erred in failing to allow them to file an amended complaint. In the case of Laursen v. General Hospital of Monroe County, 494 Pa. 238, 431 A.2d 237 (1981), our Supreme Court stated:

In general, amendments to pleadings are liberally allowed. But,
[a]n amendment introducing a new cause of action will not be permitted after the Statute of Limitations has run in favor of a defendant... However, if the proposed amendment does not change the cause of action but merely amplifies that which has already been averred, it should be allowed even though the Statute of Limitations has already run. (citations omitted).

494 Pa. at 241, 431 A.2d at 239. See also: Kuisis v. Baldwin-Lima Corp., 457 Pa. 321, 319 A.2d 914 (1974).

Pleadings serve the function of defining issues and giving notice to the opposing party of what the pleader intends to prove at trial so that the opposition may, in turn, prepare to meet such proof with its own evidence. Laursen v. General Hospital of Monroe County, 259 Pa.Super. 150, 393 A.2d 761 (1978).

In the original complaint, the appellants alleged negligence in perforating the colon and in not using due care under the circumstances. In the amended complaint, the appellants sought to allege negligence in the undertaking to render services. The statute of limitations had expired by the time the amendments to the complaint were submitted. However, the amended complaint submitted to Judge Silvestri did not set forth a new cause of action.

Despite the fact that the information available to the appellants at the outset of this suit was limited, they still were able to frame a cause of action in negligence against the hospital. Dr. Wecht was not able to testify due to circumstances beyond the control of the appellants, therefore, they had to secure Dr. Neff to testify as an expert. Dr. Neff had the benefit of more information than did Dr. Wecht, and was thus able to conclude, more definitely, that the physicians and the hospital were negligent in their care of Mrs. Connor. This allegation is merely an amplification of the original complaint which alleged negligence in failing to use due care under the circumstances, and is not the allegation of a new cause of action.

Additionally, the matters alleged by the appellants in their amended complaint were part of a causally related chain of events which occurred on the same day, November 26,1973, and at the same place, Allegheny General Hospital. The hospital had notice of these events from the very day of this incident and, therefore, was not prejudiced in its defense by the amended complaint. In my judgment, the lower court erred in refusing the appellants’ Motion to Amend.

The appellants next contend that the court below erred in dismissing their complaint.

Judge Silvestri dismissed the complaint, presumably on the basis of the hospital’s Motion for Summary Judgment. See Keating v. Zemel, 281 Pa.Super. 129, 421 A.2d 1181 (1980). Under the Pennsylvania Rules of Civil Procedure:

[Summary Judgment] shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages.

Pa.R.C.P. No. 1035(b); 42 Pa.C.S.A.

In reviewing the testimony taken at the depositions, as well as the amended complaint which I feel the lower court should have allowed, I am compelled to view the facts as disputed and in issue. Therefore, summary judgment was not proper in this case and the lower court erred in dismissing the complaint. Accordingly, I would reverse the Orders of the court below and direct that the amendment to the complaint be granted. Thereafter, the case should proceed to trial.

      . Pursuant to Appellants’ Writ of Prohibition, the Order of the lower court dated March 5, 1980, vacating its Order of February 6, 1980, was stricken by the Superior Court on June 19, 1980, as in violation of Pa.R.A.P. 1701. Therefore, the Order of the lower court dated April 7, 1980 is a nullity.

      . A resolution of the Pennsylvania Medical Society provides for dismissal from the Society of any member who testifies for Plaintiffs in medical malpractice cases in matters outside their expertise.

      . The medical report of Dr. Neff, dated February 2, 1979, contained the following pertinent part: “THE EXTRAVASATION WAS DUE TO PERFORATION OF A DIVERTICULUM BUT I CANNOT SAY WITH CERTAINTY WHETHER THE DIVERTICULUM HAD PERFORATED PRIOR TO THE BARIUM ENEMA (PERFORATION MAY OCCUR AS A RESULT OF DIVERTICULITIS) OR DURING THE PROCEDURE.” [capitals in original].

      . This third issue is now moot, as per the Order of the Superior Court dated June 19, 1980. See footnote 1.

      . Pa.R.C.P., Rule 1033 states:
      Rule 1033. Amendment
      A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

      . See Pa.R.C.P. No. 1033.

      . For the contents, as well as the general and specific averments of the Pleadings, see Pa.R.C.P. No. 1019.

      . The following actions and proceedings must be commenced within two years:
      (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.
      Act of July 9, 1976, P.L. 586, No. 142, § 2; 42 Pa.C.S.A. § 5524.

      . In the case of William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 169, 187, 346 A.2d 269, 278 (1975), the Supreme Court (per Mr. Justice Roberts) stated that “hypertechnicality and formalism in pleading are contrary to the modern practice of allowing free amendment in order to promote the resolution of cases on their merit.”


author: JOHNSON, Judge:

text:
    446 A.2d 641
    Betty Louise BUTTERBAUGH v. WESTONS SHOPPER CITY, INC., Appellant. and Nicholas TALERICO v. WESTONS SHOPPER CITY, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1981.
    Filed June 4, 1982.

      James A. Beinkemper, Pittsburgh, for appellant.
    James D. Carmella, Indiana, for Butterbaugh, appellee in No. 373.

      Raymond Zadzilko, Indiana, for Talerico, appellee in No. 374.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   JOHNSON, Judge:

Appellant filed these appeals from an order denying Appellant’s motion to open the default judgment that was entered in each case. For the following reasons, we reverse and remand.

Appellee Talerico filed a complaint in trespass which was personally served upon Appellant on June 20, 1979. On July 11,1979, Appellee praeciped for entry of a default judgment. Appellee Butterbaugh filed a complaint in trespass which was personally served on Appellant on June 22, 1979. Appellee Butterbaugh proceeded to praecipe for a default judgment on July 16, 1979.

In both cases, Appellant’s insurance carrier received the official summons on July 18, 1979. The summons had been transmitted from Appellant to its New York office to its insurance broker and, finally, to its insurer. When the insurer contacted Appellant’s counsel, the insurer was informed that a default judgment had been entered in each case.

Counsel for Appellant entered his appearance in each case on July 20, 1979. On September 17, 1979, Appellant petitioned in both cases for a rule to show cause why the default judgment should not be opened. Both petitions were denied by the order of March 13,1981, which forms the basis for the instant appeals.

In both petitions to open, Appellant avers that it did not receive notice that a default judgment would be entered. The petitions also averred that Appellant’s counsel had contacted Appellee’s counsel by mail in an effort to open the default judgment but that Appellee’s counsel had not replied in the Talerico case and had sent a noncommital reply on August 23, 1979, in the Butterbaugh case.

The trial judge’s opinion expressed disapproval of Appellee’s filing of a praecipe for default judgment on the 21st and 25th days, respectively, after service in each case. The judge also expressed disapproval of Appellee’s failure to notify Appellant of an intention to praecipe for a default judgment.

Despite Appellee’s seeming lack of professional courtesy in each case, the trial judge held that Appellant’s failure to petition promptly to open the judgments was the controlling factor in both cases. In Talerico, the petition to open was not filed until 61 days after the judgment had been entered. In Butterbaugh, the petition was filed 56 days after judgment had been entered.

Pennsylvania appellate courts have stated on numerous occasions that three factors must coalesce before a default judgment can be opened. First, the petition to open must be promptly filed. Second, the petitioner’s failure to respond to the complaint must be excusable. Third, in assumpsit cases, petitioner must show a meritorious defense. McCoy v. Public Acceptance Corp., 451 Pa. 495, 498, 305 A.2d 698, 700 (1973); see Paules v. Sminkey, 290 Pa.Super.Ct. 223, 227, 434 A.2d 724, 726 (1981); Carson Pirie Scott & Co. v. Phillips, 290 Pa.Super.Ct. 353, 356, 434 A.2d 790, 791 (1981).

On appeal, a default judgment will not be opened unless the lower court either erred regarding the law or abused its discretion. McCoy v. Public Acceptance Corp., 451 Pa. at 498, 305 A.2d at 700; Paules v. Sminkey, 290 Pa.Super.Ct. at 227, 434 A.2d at 726. Before we can determine that the lower court erred or abused its discretion, the three factors cited above must be present.

In the instant case, the lower court recognized that two of the aforesaid factors were present. Appellant offered a reasonable excuse for its delay in filing an appearance since the twenty-day period was consumed in each case by transmitting the complaints from one office to another. Also, the court accepted Appellant’s allegation that a meritorious defense existed in each case, even though a defense was not required since the instant cases are actions in trespass.

We agree with the lower court that Appellant had both a reasonable excuse for failing to respond to the respective complaints and a meritorious defense. We disagree, however, that Appellant failed to petition promptly to open the judgments. Although Appellant did not file petitions to open until 61 days and 56 days after the respective judgments had been entered, Appellant’s counsel had attempted to negotiate by mail with Appellee’s counsel to open the judgments in each case.

A petition to open a default judgment is “an appeal to the equitable discretion of the court.” Ruggiero v. Phillips, 250 Pa.Super.Ct. 349, 353, 378 A.2d 971, 973 (1977). Accordingly, our court will look beyond the length of time that has expired between the entry of the default judgment and the filing of the petition to open to determine if a valid excuse exists for the lapse of time in each case.

In Ruggiero v. Phillips, the plaintiffs’ attorney entered a default judgment, without notice, against the defendants on the 21st day after the complaint had been filed. The defendants’ attorney was not informed of the default judgment until 16 days after it had been entered. Although the petition to open was not filed until almost four (4) months after the defendants learned that the default judgment had been entered against them, our court reversed the lower court’s denial of the petition to open. Not only did our court severely criticize the plaintiff for entering a “snap” judgment, but we also found that'a justifiable reason existed for the four-month delay in filing the petition to open. During this time, the defendants’ attorney was attempting to negotiate to have the judgment opened voluntarily.

In Queen City Electrical Supply Co. v. Soltis Electric Co., 491 Pa. 354, 421 A.2d 174 (1980), the plaintiff entered a snap judgment without notice one day after the time allowed for filing answers. The supreme court stated five reasons why the twenty (20)-month delay in filing the petition to open the default judgment should be granted:

(1) the garnishee is a stranger to the underlying transaction, (2) the default was excusable, (3) the answers to interrogatories were filed one day after the default judgment was taken, (4) the garnishor would reap a windfall in excess of $20,000.00, and (5) although the petition to open was not filed for twenty months, the garnishor sustained no prejudice from the delay.

Id., 491 Pa. at 356, 421 A.2d at 175.

In contrast with the foregoing cases, in Schutte v. Valley Bargain Center, Inc., 248 Pa.Super.Ct. 532, 375 A.2d 368 (1977), and Hatgimisios v. Dave's N. E. Mint, Inc., 251 Pa.Super.Ct. 275, 380 A.2d 485 (1977), our court held that delays of 47 days and 37 days, respectively, before filing the petitions to open did not constitute prompt filing when the respective delays were unexplained. If counsel merely delays filing the petition to open—without any valid excuse or attempt to negotiate with opposing counsel—even 37 days can constitute an unexcused delay, while a valid excuse can absolve even a 20-month delay.

In balancing the equities in the instant case, we find that the scale tips in Appellant’s favor. Appellant offered a reasonable excuse for failing to file a response in either case, and Appellant offered a meritorious defense in both cases. Although Appellant did not file petitions to open until 61 and 56 days, respectively, after entry of the judgments, Appellant’s counsel did attempt to negotiate with Appellee’s counsel to open the judgment. On the other hand, Appellee failed to notify Appellant that a default judgment would be entered. Also, Appellee was quick to enter “snap” judgments in both cases.

Although the notice requirement in such cases, Pa.R.C.P. 237.1, was not effective when judgment was entered in the instant case, our court has repeatedly chastised counsel for failing to give notice. Paules v. Sminkey, 290 Pa.Super.Ct. at 227, 434 A.2d at 726; Brooks v. Surman Dental Lab, Inc., 262 Pa.Super.Ct. 369, 373-374, 396 A.2d 799, 802 (1979). Our court has viewed a lack of notice as the important factor which justifies opening a default judgment. Paules v. Sminkey, 290 Pa.Super.Ct. at 229, 434 A.2d at 727; Silverman v. Polis, 230 Pa.Super.Ct. 366, 370, 326 A.2d 452, 454-455 (1975). Likewise, our court has expressed abhorrence at the practice of “snapping up” judgments on or near the twentieth day without providing notice to the opposing party. Paules v. Sminkey, 290 Pa.Super.Ct. at 228, 434 A.2d at 726.

For the foregoing reasons, the order of March 13, 1981, is reversed; and both cases are remanded for further proceedings consistent with this opinion.

      . The relevance of a meritorious defense to trespass actions, like the instant cases, is explained in Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971):
      The rule has always been that where the equities are otherwise clear, in a trespass action as opposed to one in assumpsit, a good defense need not be posited in order to open a default judgment. The difference is attributable to differing pleading practices. In assumpsit the case is not in issue until an “affidavit of defense” (answer) is filed, whereas in trespass no affidavit of defense is required. Thus while a good defense would normally not be required in a trespass action, where present it can at least qualify as an equitable consideration favoring the opening of judgment. In fact, when the other equities are not clear, the rule seems to demand a defense. [Citations omitted.]

        Id., 446 Pa. at 140 n.3, 285 A.2d 130-131 n.3.

      . The pertinent section of Pa.R.C.P. 237.1 states:
      (a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice of agreement shall be attached to the praecipe.
      Adopted Dec. 14, 1979, effective Feb. 1, 1980.


author: POPOVICH, Judge:

text:
    446 A.2d 644
    COMMONWEALTH of Pennsylvania v. Bernard JONES, Appellant. COMMONWEALTH of Pennsylvania v. Bernard DICKERSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed June 4, 1982.
    Petition for Allowance of Appeal Denied Nov. 29,1982.

      Thomas G. Gavin, West Chester, for appellants.
    Lee Ruslander, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This case involves appeals nunc pro tunc from the judgments of sentence, which was granted by this Court in a Per Curiam order dated March 24, 1980 [No. 499 Misc.Dkt. No. 11], to the appellants, Bernard Jones and Bernard Dickerson. These two appeals were then consolidated by our Court for briefing and argument. We affirm.

On September 15, 1976, Jones was adjudged guilty by a jury of theft by unlawful taking or disposition, three counts of simple assault, two counts of robbery, burglary, recklessly endangering another person, unauthorized use of a vehicle and criminal conspiracy. Dickerson was tried in the same proceeding and, like his counterpart, was found guilty of theft by unlawful taking, three counts of simple assault, two counts of robbery, one count of rape, burglary, recklessly endangering another person, unauthorized use of a vehicle, violation of the Controlled Substance, Drug, Device and Cosmetic Act and criminal conspiracy. Combined post-trial motions were filed on behalf of the appellants and denied by Opinion of the trial court on November 19, 1976. Each appellant was sentenced to a term of five to ten years imprisonment. No appeals were taken.

In March of 1979, appellants filed pro se Post-Conviction Hearing Act (PCHA) Petitions, alleging, inter alia, the denial of their right to competent counsel. In light of the claim made, and given the fact that appellants were represented by counsel from the public defender’s office of Chester County at every stage of the litigation, the trial court appointed private counsel to assist the appellants. See Commonwealth v. Massie, 294 Pa.Super. 115, 118, 439 A.2d 777, 778 (1982) (“ ‘[A] PCHA petitioner, represented by court-appointed counsel and alleging ineffective assistance of trial counsel, may not be represented by an attorney from the office with which the allegedly ineffective attorney was associated.’ ” (Citations omitted)).

A hearing was scheduled. At the commencement of said proceeding, “with regard to one part of the application,” the attorneys entered into a “stipulation[ ] for the Court[,]” regarding the question of appeal. On this point, both attorneys agreed that appellants communicated their desire to appeal to the attorney representing them at the sentencing. However, despite sentencing counsel’s submission of an inner office memo instructing the appellate division of the public defender’s office of appellants’ intentions, no appeals were filed. (N.T. 11/23/78, at 3-4) In the remaining portion of the hearing, appellants testified that they felt trial counsel was ineffective because they “didn’t have enough time to talk with him.” (N.T. 11/23/78, at 18 and 25) Bernard Jones also testified that counsel failed to secure certain witnesses, which he admitted “having no idea” as to their identity or whereabouts, who would have corroborated his story of having shopped for an automobile on the day of the incident. (N.T. 11/23/78, at 20) After the hearing, the PCHA court determined that appellants had been denied their right to a direct appeal. The court therefore properly refused to consider the other claims, Commonwealth v. Stackpole, 275 Pa.Super. 255, 418 A.2d 709 (1980), and entered an order dated April 19, 1979, granting appellants the right to file a direct appeal nunc pro tunc to this Court. We, in turn, granted appellants’ “Petition for Allowance to Appeal Nunc Pro Tunc” by Per Curiam order issued on March 24, 1980. Pursuant to that order, appellants filed in the court below a notice of appeal from their judgments of sentence of December 9,1976. Thereafter, on September 25, 1980, the two cases were consolidated for purposes of appeal. Appellants’ filing of the notice within thirty (30) days, pursuant to our Per Curiam order, brings this appeal properly before us. See Commonwealth v. Stackpole, supra.

The issues raised by appellants’ appellate counsel concern: 1) the sufficiency of the evidence; 2) the commission of error by the trial court in commenting on the Commonwealth’s evidence in the charge to the jury; 3) the commission of error by the trial court in its instruction on the defense of intoxication; and 4) trial counsel’s stewardship.

Before addressing the merits of appellants’ averments, we find it appropriate to discuss a procedural matter. In 1976, appellants filed post-verdict motions which are exactly the same as the first three issues presented in their appeal to this Court. Given the fact that the trial court disposed of same in its Opinion, the PCHA court cannot be faulted for failing to comply with “[t]he preferable procedure . . . [of] allowing] appellants] the opportunity to file with the court below post-trial motions[ ]” after determining that the accuseds’ right to appeal had been violated. Commonwealth v. Webster, 466 Pa. 314, 319, 353 A.2d 372, 374 (1975). Since such practice is preferred because it affords the accused the opportunity to narrow the issues on appeal, such objective was satisfied here not only when appellants filed post-verdict motions, but when the trial court made a ruling on their merits. Consequently, the disposition of such post-trial motions obviates the need for a remand. See, e.g., Commonwealth v. May, 296 Pa.Super. 435, 439 n. 3, 442 A.2d 1129, 1131 n. 3 (1982) (the remedy of a nunc pro tunc appeal is appropriate where post-verdict motions have been filed and argued in the case); Commonwealth v. Stackpole, supra (appellant in 1964 filed post-verdict motions which raised all issues presented in his (1980) appeal nunc pro tunc; however, since the issues were never disposed of by the trial court the case was remanded).

In reviewing the merits of appellants’ sufficiency of evidence argument, we must accept as true all of the Commonwealth’s evidence and all reasonable inferences flowing therefrom, upon which, if believed, the fact-finder could have based his verdict. The test then becomes whether such evidence, viewed in the light most favorable to the verdict winner, is sufficient as a matter of law to prove guilt beyond a reasonable doubt. Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981).

The testimony produced at trial demonstrated that on the evening of May 14,1976, Ms. Patricia Fulton was confronted in her home by two intruders. The shorter of the two men, who was armed, forced her into the bedroom. She told the intruders that there was money in the bottom drawer of the bureau. The shorter man walked over to the bureau and the taller one ordered Ms. Fulton to lie on the bed and remove her slacks. When she refused, the individual threatened to harm her. So, fearing that she would be shot or beaten, Ms. Fulton did not resist the assailant. During the assault, Ms. Fulton’s boyfriend (Richard Jones) arrived at the home. When the victim screamed to warn him of the intruders, she was struck in the face by the taller of the two men with such force that she fell against the vanity and injured her back—Ms. Fulton also sustained a black eye and bruised face. At this point, Mr. Jones stepped into the bedroom and was greeted with a gun in his face. He grabbed the weapon from the shorter man and they stumbled into the living room. Jones was unsuccessful in disarming his attacker and finally submitted. Thereafter, he was taken into the bedroom and tied to the bed post, while Ms. Fulton had her hands bound. The two culprits then left the premises and took the victim’s car in the process.

At trial, Ms. Fulton testified that she was robbed of $170.00 by the appellants and identified Dickerson as the rapist. Ms. Fulton’s boyfriend reaffirmed the victim’s identification testimony and pointed out Bernard Jones as the person with whom he had fought. Appellants’ version of what happened was quite different. They testified that on the day in question they were in the market for a vehicle and spent most of the day going to different dealerships. When their efforts proved fruitless, they recalled that Ms. Fulton lived in the area. The appellants recounted that they had met her on two prior occasions and they had smoked marijuana at her home. In particular, Dickerson recounted that on the second occasion he met Ms. Fulton they ended up having “an affair.”

Appellants went on to recall that Ms. Fulton permitted them entry into her premises, that the three of them smoked marijuana and that she sold her car to them for $180.00. Next, Jones stated that Ms. Fulton gave Dickerson a .38 revolver for a “bundle of dope,” whereas Dickerson recalled that Ms. Fulton gave him the weapon to see what he could “get for it” in Philadelphia. Also, according to Dickerson, he and Ms. Fulton engaged in a consensual act of intercourse on the evening in question. The two (Jones and Dickerson) then left in Ms. Fulton’s automobile, but, being somewhat “intoxicated” from the marijuana, Jones wrecked and he and Dickerson pushed the vehicle off to the side of the road. Thereafter, the two were arrested by police.

As is true in most cases where the testimony of the witnesses are at odds, it is for the trier of fact to decide whom to believe. Commonwealth v. Tumminello, 292 Pa.Super. 381, 437 A.2d 435 (1981). It is obvious from the verdict entered here that the jury disbelieved the appellants. After a thorough review of the record, we find no reason to disturb the jury’s decision. As we have stated so often, “[t]o do otherwise, in light of the facts presented, would be to invade the bailiwick of the trier of fact in the absence of ‘evidence ... so unreliable and/or contradictory as to make any verdict based thereon pure conjecture ....’” (Citations omitted) Commonwealth v. Graeff, 296 Pa.Super. 480, 486, 442 A.2d 1153, 1156 (1982); see also Commonwealth v. Tumminello, supra; Commonwealth v. Harrison, 290 Pa.Super. 389, 434 A.2d 808 (1981).

We now turn our attention to appellants’ second and third assertions, which complain that error was committed by the trial court in: 1) discussing the Commonwealth’s theories of the case; and 2) arguing a viewpoint on the charge of intoxication that had not previously been expounded by the Commonwealth.

Appellate counsel cites us to no specific portion of the charge in making out either claim. This is of no moment, however, for in. evaluating the correctness of the instructions to a jury, the charge must be read and considered as a whole, for it is the general effect of the charge that controls. Commonwealth v. Rodgers, 459 Pa. 129, 132, 327 A.2d 118, 120 (1974). We have done so and are in accord with the lower court that:

“The jury was clearly charged as to their factfinding roles as indicated by the following excerpt from the Charge which appears at page 274 of the Notes of Testimony:
‘As the fact finder you are charged with the duty of remembering the testimony and remembering it correctly, and this is so whether the testimony is the subject of comment by the attorneys in their summation or by me in the charge. If our recollection of that testimony differs from yours it is your recollection which controls because you are the exclusive judges of the facts and it would be most improper for us to invade your province as fact finder and you must be careful that we do not do that. I assure you it would not be intentional but the law is that it is the jury’s recollection of the facts from the testimony and from the physical exhibits that controls.’
In charging a jury, it is the principal duty of the Trial Judge to clarify the issues, so that the jury may understand the questions to be resolved. Commonwealth v. Beach, 438 Pa. 37[, 264 A.2d 712] (1970). It was in pursuit of the mandate recited immediately above that great effort was expended by the Trial Judge to focus the attention of the jury on the issues to be resolved as the same were fairly raised by the evidence and the law. Contrary to the assertions of the defense, under any fair reading of the Charge of the Court on the specific areas raised as to rape, recklessly endangering, unauthorized use of a motor vehicle and the defense of intoxication, there were' no inflammatory, prejudicial or opinionated recitations by the Trial Judge but a relatively simple delineation of the contentions of each of the parties. See Commonwealth v. Bartell, 184 Pa.Super. 528[, 136 A.2d 166] (1957); Commonwealth v. McHugh, 187 Pa.Super. 568[, 145 A.2d 896] (1958); Commonwealth v. Crawford, 452 Pa. 326[, 305 A.2d 893] (1973); Commonwealth v. Goins, 457 Pa. 594[, 321 A.2d 913] (1974).” (Lower Court Opinion at 4-6).

Finally, appellate counsel contends that trial counsel was ineffective because he failed to have any discussion with his clients, i.e., appellants never saw the attorney until moments before the jury was to be selected and appellants had no opportunity to discuss the case with him.

Since the decision in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), the courts of this Commonwealth have often repeated that mere shortness of time spent in conference with a client does not per se establish ineffectiveness on the part of retained or appointed counsel. Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973) (citing cases). No issue is raised by either side in this appeal concerning the lack of a discussion of this point by the PCHA court. Concerning this subject, our Supreme Court said in Commonwealth v. Woody, 440 Pa. 569, 574, 271 A.2d 477, 480 (1970):

“[N]o weight [is] given ... to the allocation of the burden of proof in this area. What is needed is an independent judicial review of the record. Preferably, that independent review should occur initially in the trial court. However, if no such independent review has occurred at the trial level, and if the record is complete enough to support such an examination, this Court then should undertake the task . .. . ” Accord Commonwealth v. Bronson, 457 Pa. 66, 69, 321 A.2d 645, 646 (1974); Commonwealth v. Harper, 233 Pa.Super. 294, 299 n. 3, 334 A.2d 761, 763 n. 3 (1975).

This Court can therefore proceed to decide the question posed. Initially, we note that in appellants’ evidentiary hearing the grounds for their claim of ineffective assistance of counsel consisted of the denial of their right to appeal, which we have already discussed supra, and the shortness of time spent conferring with their attorney prior to trial. An examination of the testimony of each appellant at the PCHA hearing undermines the latter averment. To explicate, both appellants testified that he met with Attorney Haltrecht, a public defender who handled the pre-trial work on the case, for about “fifteen minutes.” (N.T. 11/23/78, at 8 and 24) On the day set for trial, appellants met with Attorney Van Steenburgh, another public defender, this time it was for about ten or fifteen minutes. (N.T. 11/23/78, at 11 and 25) Additionally, each appellant conceded that he had the opportunity to confer with counsel during the course of the trial, to tell Attorney Van Steenburgh what the basic facts were surrounding the case, and their theory or version of the case. (N.T. 11/23/78, at 11, 14, 17, 29 and 34) More importantly, a perusal of the trial transcript discloses that defense counsel was diligent in presenting objections and cross-examining witnesses during the Commonwealth’s case. Counsel also presented a comprehensive case of his own, calling Jones and Dickerson to the stand and examining them extensively. Based on the aforesaid, we are of the opinion that Attorney Van Steenburgh understood the facts of the case in conducting the appellants’ defense, see, e.g., Commonwealth v. Fox, 272 Pa.Super. 8, 414 A.2d 642 (1979); therefore, appellants’ claim of prejudice because of an allegedly late appointment of counsel is meritless. Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978); Commonwealth v. Couch, 442 Pa. 402, 275 A.2d 112 (1971) (counsel appointed 15 to 30 minutes prior to nolo contendere plea, no prejudice shown); Commonwealth v. Skipper, 440 Pa. 576, 271 A.2d 476 (1970) (counsel appointed 15 to 20 minutes prior to trial, no prejudice established); see also Commonwealth v. Nero, 250 Pa.Super. 17, 378 A.2d 430 (1977); Commonwealth v. Warner, 228 Pa.Super. 31, 324 A.2d 362 (1974).

Finding no merit to any of appellants’ contentions, we affirm the trial court’s judgments of sentence.

MONTEMURO, J., concurs in the result.

      . Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. §§ 1180-1 et seq. (Supp.1975).

      . This undermines the Commonwealth’s contention that “[t]he PCHA Court, upon request of defense counsel, decided no issues but merely granted leave for defendant to appeal Nunc Pro Tunc .... With this request, defense counsel waives his right to appeal any issues which first could have been ruled upon by the PCHA Court.” (Commonwealth’s Brief at 7)
      In Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977) our Supreme Court stated that “the preferred practice is for a Post Conviction Hearing Court, having determined that petitioner is entitled to a direct appeal, to refrain from rulings upon the merits of the remaining claims for relief because they will be reviewable on the direct appeal process. Commonwealth v. Webster, 466 Pa. 314, 318-319, 353 A.2d 372, 374 (1975) (and cases cited therein). The only justification for a deviation from this practice is where the trial record is inadequate to provide a basis for a review of the claim or where the claim was not ruled upon by the trial court.” (Emphasis added) Id., 472 Pa. at 140 n. 5, 371 A.2d at 473 n. 5. Such “practice” has been interpreted by this Court, in accordance with the dictates of Webster and Sullivan, to mean:
      “[Ojnce the PCHA court determines petitioner has been deprived of his appellate rights, it should refrain from ruling upon the merits of the other claims and should grant petitioner the right to file an appeal nunc pro tunc .... [However, such abstention is not absolute, for] it is clear that the PCHA court must address the other claims raised in the PCHA petition when it is necessary to complete the record for appellate review, but under these circumstances, the PCHA court is merely functioning as an evidentiary tribunal.” (Emphasis added) (Footnote omitted) Commonwealth v. Miranda, 296 Pa.Super. 441, 453-54, 442 A.2d 1133, 1138 (1982). Accord Commonwealth v. May, 296 Pa.Super. 435, 442 A.2d 1129 (1982); Commonwealth v. Clark, 296 Pa.Super. 315, 442 A.2d 786 (1982).

      . At the PCHA hearing, only Dickerson complained about trial counsel representing both he and Jones at the joint trial. Appellate counsel now asserts, on behalf of Jones and Dickerson, that counsel was less than effective for not requesting a continuance to reassess the feasibility of representing both appellants at one trial. In the interest of judicial economy, since this issue has been briefed by both sides, and to avoid the filing of a subsequent PCHA petition by Jones claiming appellate counsel’s ineffectiveness for not raising the issue sooner, we will address the matter as to both appellants.
      Our dual representation cases make several principles clear. We need only mention two of those precepts to dispose of appellants’ averment; viz.: “[A] defendant must demonstrate that a conflict of interest actually existed at trial, because ‘dual representation alone does not amount to a conflict of interest.’ ... [Ajppellant will satisfy the requirement of demonstrating possible harm, if he can show, inter alia, ‘that he had a defense inconsistent with that advanced by the other client, or that counsel neglected his case in order to give the other client a more spirited defense.’ ” (Citations omitted) (Emphasis in original) Commonwealth v. Breaker, 456 Pa. 341, 345, 318 A.2d 354, 356 (1974).
      Here, our review of the trial transcript (N.T. 9/14/76, at 160-265), reveals that Jones’ and Dickerson’s accounting of what happened were mirror images of each other. In other words, each version was consistent with, and not mutually exclusive of, the other. Thus, according to the standard delineated in Breaker, appellants have failed to prove that a conflict of interest existed. This is especially true if one considers that neither appellant had “a defense inconsistent with that advanced by the other client,” nor did counsel neglect one appellant’s case in order to give a more spirited defense to the other. Commonwealth v. Breaker, supra.

      . Our review of the record evidences an affidavit submitted by Attorney Haltrecht to the lower court which refutes such testimony. The affidavit reads, in relevant part, as follows:
      “I first interviewed each defendant, separately, at Chester County Farms Prison on June 3, 1976. As I recall, I spent at least one hour with each defendant. During the initial interview, I took notes on each defendant’s account of the incident in question and I took down information as to each defendant’s prior criminal record and information relevant to a Petition to Reduce Bail.
      I recall seeing the defendants at least one other time at Chester County Farms Prison.

        Shortly before trial in these matters, I had to ask D. Benjamin VanSteenburgh, Esquire, to represent both defendants!.] I spent about an hour going over the file with Mr. VanSteenburgh . ... ” (Affidavit notarized on April 4, 1979)
      Although such document presents a conflict in the testimony which is best resolved by a finder of fact and not an appellate court, we note its existence as at least some evidence to rebut appellants’ contention that “trial counsel failed to have any discussion with his client[s].” (Appellants’ Brief at 12.)

      . This is countered in the Commonwealth’s brief by reference to a deposition given by trial counsel on February 13, 1979, that “he spent hours” prior to trial discussing testimony and possible questions with Jones and Dickerson. Moreover, the Commonwealth attributes trial counsel with testifying that “in all the criminal cases he ha[d] tried in Chester County, he ha[d] never put defendants on the stand to testify without going over the testimony in great detail. (N.T. Feb. 13, 1979, at p. 18).” (Commonwealth’s Brief at 14); see Commonwealth v. Waters, 441 Pa. 511, 516, 273 A.2d 329, 331 (1971) (the testimony of counsel whose stewardship was being challenged “regarding his customary procedures in criminal cases is to some extent probative that he did follow such procedures in this particular case.”); see also Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Further, the Commonwealth points to counsel testifying that “he reviewed the tape recording of the preliminary hearing and the remainder of the file before ....” the trial. (Commonwealth’s Brief at 15) Unfortunately, this Court does not have the benefit of examining the deposition of trial counsel first-hand, since it was not included in the records forwarded to this Court by the Prothonotary. See Commonwealth v. Rini, 285 Pa.Super. 475, 483, 427 A.2d 1385, 1389-90 (1981) (appellate court may not consider facts outside the record; e.g., allegations in a party’s brief, even when not “substantially challenged,” are not part of the record); see also Commonwealth v. Bowermaster, 297 Pa.Super. 444, 444 A.2d 115 (1982) (SPAETH, J., Concurring and Dissenting Opinion). Nonetheless, we conclude that the PCHA and trial transcripts are sufficient evidence upon which to make a determination that appellants were not given inadequate representation at trial.