author: PER CURIAM: CIRILLO, Judge,

text:
    478 A.2d 474
    COMMONWEALTH of Pennsylvania v. Lenois JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 24, 1983.
    Filed June 22, 1984.

      Marilyn Zilli, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CIRILLO and HOFFMAN, JJ.
   PER CURIAM:

On March 17, 1962, appellant was adjudged guilty of second degree murder. A few days later he was also convicted of assault with intent to kill. Appellant was sentenced to an aggregate sentence of thirteen and one-half (13-V2) years to twenty-seven (27) years in prison. No appeal was taken. On June 24, 1981 appellant filed a petition pursuant to the Post Conviction Hearing Act, 19 P.S. § 1180-1 et seq. (Since reenacted at 42 Pa.C.S.A. § 9541 et seq.) Counsel who was appointed to represent him, filed an amended petition. The Commonwealth responded with a motion to dismiss appellant’s petition without a hearing. The PCHA court dismissed the petition without a hearing relying upon the Commonwealth’s motion to dismiss.

On appeal appellant contends the court erred in denying his petition, which was his first such petition, without a hearing. The Commonwealth contends that appellant has failed to overcome the presumption of waiver arising from his delay of almost twenty (20) years in challenging his conviction. Appellant counters that he was not apprised of his appeal rights and that trial counsel was ineffective in failing to take the steps necessary to preserve and prosecute an appeal.

Section 1180-9 (now found at 42 Pa.C.S.A. § 9549) of the act reads in part:

(a) When required. — If a petition alleges facts that, if proven, would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer.
(b) When not required. — The court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from the other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding.

While a hearing on a defendant’s first PCHA petition is not mandatory, Commonwealth v. Whittaker, 292 Pa.Superior Ct. 172, 436 A.2d 1207 (1981); see also Commonwealth v. Overall, 275 Pa.Superior Ct. 206, 418 A.2d 685 (1980), where such a petition alleges that trial counsel failed to file an appeal in spite of the defendant’s wishes to do so, a hearing should be conducted to determine whether the defendant knowingly waived his appellate rights. Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980); Commonwealth v. Scales, 309 Pa.Superior Ct. 171, 454 A.2d 1138 (1983); Commonwealth v. Tresize, 243 Pa.Superior Ct. 404, 365 A.2d 1287 (1976). In the case at hand, appellant’s petition was dismissed without a hearing because of the almost twenty (20) year delay in raising his claim.

Under the PCHA, § 1180-4(b) (now located at 42 Pa.C.S.A. § 9544(b)) issues are deemed waived when:

(1) The petitioner knowingly and understanding^ failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding of any other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.

Furthermore, under subsection (c) there is a rebuttable presumption that the failure to take an appeal is a knowing and understanding decision to forego review. Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978). Appellant contends that he has overcome the statutory presumption by his allegation that counsel was ineffective. Ineffectiveness of counsel may amount to “extraordinary circumstances” precluding a finding of waiver. Commonwealth v. Belleman, 300 Pa.Superior Ct. 209, 446 A.2d 304 (1982), Commonwealth v. Allen, 280 Pa.Superior Ct. 599, 421 A.2d 1094 (1980). However, the mere assertion that counsel was ineffective does not establish an automatic right to a PCHA hearing. See Commonwealth v. Alexander, 495 Pa. 26, 33, 432 A.2d 182 (1981). Here we must determine whether appellant’s claim, that counsel was ineffective in failing to appeal his conviction, amounts to extraordinary circumstances. In other words, we must determine whether he has overcome the presumption that he has waived his right to appeal by delaying for twenty years, and therefore whether he is entitled to a hearing on his claim. It has become well established in this Commonwealth that a lapse of time in filing a PCHA petition is a factor in assessing the petition’s merits. Commonwealth v. Alexander, supra; Commonwealth v. Kenny, 317 Pa.Superior Ct. 175, 177 n. 1, 463 A.2d 1142, 1143 n. 1 (1983). Commonwealth v. Courts, 315 Pa.Superior Ct. 108, 461 A.2d 820 (1983); Commonwealth v. Courts, 315 Pa.Superior Ct. 124, 461 A.2d 828 (1983); Commonwealth v. Strickland, 306 Pa.Superior Ct. 516, 452 A.2d 844 (1982). However the question we must resolve is whether such delay may be the sole basis for denying a defendant’s first PCHA petition, without a hearing. We look to existing precedent for guidance.

In Commonwealth v. Kenney, supra, this court, after noting that the petitioner had waited, seven years after his conviction had been affirmed on direct appeal to raise a claim of ineffectiveness, went on to review the substantive claim of ineffectiveness. The PCHA court had held a hearing before denying relief. The case of Commonwealth v. Strickland, supra is also distinguishable from appellant’s situation for two reasons: first, the court conducted a hearing; and second, the substantive issues raised were determined to be without merit.

The two Courts cases, cited above, which are more similar to the case at hand in that the petition was denied without a hearing, are however also distinguishable in that this court in both instances found that the substantive issues raised were without merit, and only as an added note was the delayed filing discussed. None of the above four cases involved a claim that the defendant had been denied his right to appeal due to ineffectiveness of counsel.

Of particular interest to the current appeal is Commonwealth v. Kale, 312 Pa.Superior Ct. 69, 458 A.2d 239 (1983). Kale is factually different in that the PCHA court had conducted a hearing, its holding is however specially enlightening in resolving appellant’s appeal. This court held:

We find it unnecessary to consider the merits of appellant’s several petitions. He has failed to explain the delays, which vary from 7 years, 6 months to 2 years, 10 months, in filing requests to withdraw these pleas of guilty. He has neither alleged nor proved that he was unaware of his appellate rights or that counsel was ineffective for failing to pursue an expressed desire to appeal. These unexplained delays bar a consideration of the merits of the several claims which appellant seeks to assert in collateral attacks on his prior convictions.

Id., 312 Pa.Superior Ct. at 72, 458 A.2d at 241 (citations omitted) (emphasis supplied). Here, appellant claims that he was not informed of his appellate rights, and also, that counsel was ineffective in failing to appeal.

Recently, in Commonwealth v. Hairston, 323 Pa. Superior Ct. 449, 470 A.2d 1004 (1984) (Opinion by Johnson, J.; Wieand, J., concurred in the result and Judge Cirillo filed a dissenting opinion) this court excused a greater than four (4) year delay in seeking post-trial relief and remanded for an evidentiary hearing on the substantive issues as the record demonstrated that appellant had not been apprised of his appeal rights. Here, however, we have no record to review as the notes of testimony are missing, presumably as a result of the passage of two decades. Therefore, unlike Hairston, we may not determine whether there is any merit to appellant’s claim that he was not informed of the right to appeal. Accordingly, following the reasoning of Judge Johnson in Hairston, as well as the holdings in Wilkerson, supra, and Scales, supra, we must remand to allow a record to be developed concerning whether appellant knowingly and intelligently waived his right to pursue an appeal.

We do not mean to infer that a defendant may sit idly by for decades and then seek an appeal from a judgment of sentence which, due to the passage of time, can no longer be supported because of lost records. We share the concern expressed in the Dissenting Opinion, at 3, in Hairston, that: “The PCHA was never meant to afford defendants endless opportunities at bombarding the judiciary with frivolous appeals, nor to make a mockery of the concept of judgment finality.” Nonetheless, a defendant should be given an opportunity to explain his delay. As was stated in Commonwealth v. Alexander, supra, 495 Pa. at 36, 432 A.2d at 186, which addressed the problem of multiple petitions:

It is unnecessary and undesirable to replace “ineffective assistance equals extraordinary circumstances” with any formula that would not allow the PCHA court to remain flexible in the exercise of sound discretion. As the phrase implies, circumstances might arise which will be truly “extraordinary” and will defy neat categorization. Therefore, the PCHA court should be free to consider all the myriad facts and circumstances surrounding the petition as to the decision to hold a hearing on a second (or a later successive) petition as well as the decision as to whether “extraordinary circumstances” exist excusing failure to preserve an issue.

Alexander, clearly did not intend that the passage of time alone should require the denial of collateral relief without a hearing, even on successive petitions. Therefore, where a first petition argues the denial of the right to appeal and the record is silent, nonexistent, or lost as to such claim, the PCHA court should allow the petitioner an attempt to demonstrate that he or she did not knowingly and intelligently waive an appeal.

Order reversed and case remanded for an evidentiary hearing. Should the court determine that appellant has not waived his appellate rights then the court should proceed in accordance with Commonwealth v. May, 296 Pa.Superior Ct. 435, 442 A.2d 1129 (1982); and Commonwealth v. Miranda, 296 Pa.Superior Ct. 441, 442 A.2d 1133 (1982). We do not retain jurisdiction.

CIRILLO, J., filed a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent. In my view the majority’s opinion today ignores the waiver doctrine and disregards the Commonwealth’s interest in the finality of its criminal judgments.

Undeniably, the right to appeal a conviction is sacred. Still, this hallowed right must compete with the Commonwealth’s interest in the legitimacy and credibility of its criminal judgments. The right to appeal therefore must be tailored to accommodate the public’s concern with a judgment’s finality.

In contemplation of these competing interests, our Post Conviction Hearing Act precludes a criminal defendant from obtaining collateral relief where the issues raised either have been waived or finally litigated. 42 Pa.C.S. § 9544; Commonwealth v. Silvis, 307 Pa.Super. 75, 452 A.2d 1045 (1982); Commonwealth v. Harper, 292 Pa.Super. 192, 436 A.2d 1217 (1981). Moreover, those rulings or issues potentially cognizable on appeal, are presumptively treated as waived if a defendant fails to raise them on direct appeal. Commonwealth v. Silvis, supra; Commonwealth v. Harper, supra.

I am wholly unpersuaded by appellant’s efforts to rebut the presumption of waiver. There is no doubt that appellant did not file an appeal to his convictions in a timely fashion. In his PCHA petition, filed nearly twenty years after the convictions, appellant seeks the collateral relief of the right to appeal nunc pro tunc. In order to rebut the presumption of waiver of appeal right, appellant suggests that his failure to appeal and any waiver engendered thereby, was not knowing and intelligent... Specifically, appellant claims that he was not informed of his appellate rights, and also, that his counsel was ineffective in failing twenty years ago to pursue an appeal on appellant’s behalf.

The majority today remands this case for an evidentiary hearing in order to determine the truth of appellant’s allegations. I quarrel with this disposition, for I do not think a remand is necessary in the present circumstance. Generally, a PCHA hearing is unnecessary if it is determined that the claims set forth in the petition are unsupportable by the record and frivolous. 42 Pa.C.S. § 9549; Commonwealth v. Box, 305 Pa.Super. 81, 451 A.2d 252 (1982); Commonwealth v. Sherard, 290 Pa.Super. 58, 434 A.2d 128 (1981). I am convinced that appellant’s claims in rebuttal of the presumption of waiver are totally without merit.

A lapse of time in filing a PCHA petition is a factor to be considered in assessing its merit. Commonwealth v. Courts, 315 Pa.Super. 124, 461 A.2d 828 (1983); Commonwealth v. Strickland, 306 Pa.Super. 516, 452 A.2d 844 (1983). “Thus, a lengthy, unexplained delay in raising an issue will buttress the presumption of knowing and understanding waiver; conversely the immediate attempt to gain review of alleged error at the earliest possible time would have the opposite effect. Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981).” Commonwealth v. Hairston, 323 Pa.Super. 449, 470 A.2d 1004 (1984) (Cirillo, J., dissenting).

In this case appellant waited more than nineteen years to file his PCHA petition. In light of this inordinate protraction of filing, appellant’s explanation is flimsy, if not unbelievable. Certainly appellant, through at least a twenty year exposure to our criminal justice system, was aware that the right to appeal is not perpetual. See Commonwealth ex rel. Scoleri v. Myers, 423 Pa. 558, 225 A.2d 540 (1969) (knowledge of appellate rights imputed to defendant) Cf. Commonwealth v. Campbell, 309 Pa.Super. 214, 455 A.2d 126 (1983). If it is true that appellant was not informed of his right to appeal, and it is true that counsel did not pursue an appeal after being requested by appellant to do so, why has appellant remained silent for almost two decades? In these circumstances, appellant’s “prolonged silence becomes deafening.” Commonwealth v. Courts, 315 Pa.Super. at 134, 461 A.2d at 833.

In short, it is inconceivable to me that appellant could now claim that he has not waived his right to collateral relief when there has not been so much as a murmur from him since 1962. If the waiver doctrine is to have force, and if the concept of judgment finality means anything, we should not lightly lend our imprimatur to appellant’s frivolous claims, by remanding for an evidentiary hearing. I am convinced beyond any doubt that appellant has waived his right to appeal. The PCHA court correctly dismissed appellant’s petition without a hearing. A remand in this case would be a supreme waste of time.

      . Appellant was paroled in 1975 and later convicted of assault in Tennessee. In 1979, he was found to be in violation of his Pennsylvania Parole and was directed to serve the remainder of his sentence. The Commonwealth has advised us that appellant was again paroled on March 15, 1982.

      . The practice, of relying upon the Commonwealth’s response in denying a PCHA petition, was disapproved of in Commonwealth v. Price, infra.

      . The Commonwealth has attached as exhibits to its brief a letter from appellant and a letter from co-trial counsel, both dated in 1969. The gist of both letters is that counsel did not take an appeal because appellant was satisfied with the verdict. Neither letter is of record. The Supreme Court was faced with a similar problem in Commonwealth v. Wilkerson, infra, there the court held it could not consider similar correspondence as it was not properly before the court. Hence we may not consider the letters attached to the Commonwealth’s briefs.

      . We are appalled by the Commonwealth’s apparent lack of thoroughness in presenting its position to the Court of Common Pleas, as evidenced by its presentation of exhibits to this court which had not been brought to the PCHA court’s attention. See footnote 3, supra. We assume that on remand both the Commonwealth and appellant will provide the court with all the relevant available evidence.

      . 42 Pa.C.S. § 9541, et seq.

      . Also, an evidentiary hearing would be of no practical benefit. Twenty years have passed and memories have faded. The transcripts of trial proceedings are no longer in the record. It is doubtful that the relevant facts could be reconstructed at this late date.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    478 A.2d 480
    In re ADOPTION OF FAITH M. and Victoria M. Appeal of THEODORE R.M.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1983.
    Filed June 29, 1984.
    Petition for Allowance of Appeal Granted Nov. 19, 1984.

      R. Downie, Jr., Beaver Falls, for appellant.
    Gretchen S. Reed, Beaver, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BECK, Judge:

The appellant-natural father appeals an order granting the appellee-natural mother’s petition for the involuntary termination of the appellant’s parental rights to the parties’ two daughters. Concluding under the circumstances that the appellant did not neglect his parental duties during any six-month period, we reverse the trial court’s termination order.

The appellant and the appellee were married on July 6, 1974. On January 18, 1975, the parties’ first daughter, Faith, was born. Thereafter, the parties began to experience marital problems which culminated in the departure of the appellee and Faith from the parties’ Wisconsin marital home.

At the time of the parties’ separation, the appellee was three months pregnant. On June 19, 1976, the parties’ second daughter, Victoria, was born in Pennsylvania where the appellee and Faith had resided since the parties’ separation.

Meanwhile, on January 15, 1976, the appellee filed for divorce in Wisconsin’s Polk County court. After a hearing at which the appellant appeared in person and through his attorney, the appellee appeared only through her attorney, and the parties’ children appeared solely through their court-appointed attorney (guardian ad litem), the Polk County court issued a divorce decree which awarded custody of the parties’ daughters to the appellant and reasonable visitation rights to the appellee. The divorce decree became effective on October 26, 1976, and was not appealed by the appellee.

However, despite the Wisconsin court's award of custody to the appellant, the parties’ daughters continued to live in Pennsylvania with the appellee. Consequently, on March 15, 1977, the appellant sought to enforce the Wisconsin custody award by petitioning the Court of Common Pleas of Beaver County for a writ of habeas corpus. A hearing on the matter was held on April 20, 1977, at which time both the appellant and the appellee appeared with their counsel, and the appellant was personally served with the appellee’s complaint for child support.

Following negotiations by the parties and their counsel, on April 21, 1977, the Beaver County court issued an order giving the appellee custody of the parties’ children and allowing the appellant several weeks of yearly visitation. As a precondition to exercising his visitation rights, the appellant was required to post a cash bond of fifteen hundred dollars. By a separate order of April 21, 1977, the appellant was also directed to make monthly child support payments of one hundred and thirty dollars.

Subsequently, the appellánt failed to post a bond and therefore did not exercise his visitation rights pursuant to the April 21 court order. In January of 1981 the appellee remarried, and her new husband expressed a desire to adopt Faith and Victoria. As a result, on May 25, 1982, the appellee filed a petition to terminate the appellant’s parental rights.

After a three-day hearing at which both the appellant and the appellee testified along with their current spouses and other witnesses, the Beaver County court involuntarily terminated the appellant’s parental rights on July 1, 1982. The granting of the appellee’s termination petition forms the basis of the appeal now before us.

In accordance with the dictates of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), “any party in Pennsylvania attempting to terminate parental rights must establish by clear and convincing evidence the existence of grounds for doing so.” Appeal of G.J.A., 304 Pa.Super.Ct. 21, 25, 450 A.2d 80, 82 (1982) (footnote deleted). Moreover, a termination order must rest upon competent evidence and cannot be “ ‘predicated upon capricious disbelief of competent and credible evidence.’ ” In re Adoption of Barnett, 304 Pa.Super.Ct. 514, 521, 450 A.2d 1356, 1360 (1982) (citation omitted); In re Adoption of M.M., 492 Pa. 457, 424 A.2d 1280 (1981). Thus, in reviewing a challenged termination order, we must ascertain whether the order is supported by clear and convincing, competent evidence.

“[Pjarental obligation is a positive duty which requires affirmative performance ... [including] a genuine effort to maintain communication and association with the child____ [Pjarental duty requires that a parent ‘exert himself to take and maintain a place of importance in the child’s life.’ ” In re Adoption of R.W.G., 494 Pa. 311, 314-15, 431 A.2d 274, 276 (1981) (citation omitted). Where a “parent by conduct continuing for a period of at least six months ... has ... failed to perform parental duties,” Section 2511(a)(1) of the Adoption Act, 23 Pa.C.S. § 2511(a)(1), authorizes the involuntary termination of parental rights.

Nevertheless, a failure to perform parental obligations does not automatically warrant an involuntary termination of parental rights. In re Adoption of J.A.B., 487 Pa. 79, 408 A.2d 1363 (1979). Rather, the nonperformance of parental duties must be evaluated under the totality of the circumstances confronting the individual parent whose rights are jeopardized, and consideration must be afforded to any excuses proffered to explain the nonperformance. In re D.J.Y., 487 Pa. 125, 408 A.2d 1387 (1979); In re Adoption of J.S.H., 299 Pa.Super.Ct. 90, 445 A.2d 162 (1982). “A parent’s performance must be measured in light of ‘what would be expected of an individual in circumstances in which the parent under examination finds himself.’ ” In re Adoption of B.D.S., 494 Pa. 171, 179, 431 A.2d 203, 207 (1981) (citation omitted). But “to safeguard his or her parental rights, a parent may not acquiesce in obstructive behavior by ... the custodial parent. He or she must exhibit ‘reasonable firmness’ in refusing to yield to such obstacles.” In re Adoption of J.S.H., 299 Pa.Super. at 102, 445 A.2d at 168 (Beck, J., concurring); In re Adoption of J.S.M., Jr., 492 Pa. 313, 424 A.2d 878 (1981); In re D.J.Y.

In the case sub judice the appellant was awarded custody of the parties’ daughters by a 1976 Wisconsin court decree. Record at 58. However, despite the Wisconsin decree, Faith and Victoria continued to reside in Pennsylvania with the appellee. Attempting to gain actual custody of his daughters, the appellant in 1977 initiated an action in the Beaver County common pleas court. Record at 8, 60. It is undisputed that since the parties’ separation, the appellant’s sole face-to-face contact with Faith and Victoria occurred in conjunction with the appellant’s Beaver County suit. Record at 46, 90. However both the appellant and the appellee testified that continuously throughout the years after the parties’ separation, the appellant sent Faith and Victoria Christmas and birthday gifts. Record at 16-19, 123, 130, 164-65.

The appellant stated that although his earliest gifts were acknowledged by thank-you notes from the appellee, some of his later gifts were not thus acknowledged so he began sending presents to his daughters by certified mail, return receipt requested. Record at 63, 131, 163. The record further discloses that after the parties’ separation, the appellee and the parties’ children lived in the home of the appellee’s parents until the appellee remarried and moved to a house next to her parents’ home. Record at 122. The appellee never informed the appellant of her address change, and the appellant continued sending presents by certified mail to the home of the appellee’s parents. Record at 123.

The appellee admitted that on at least two occasions cards accompanied the appellant’s gifts. Record at 19. Moreover, the appellee admitted that the appellant telephoned Faith on her fourth birthday and that approximately three or four months thereafter, the appellee acquired an unlisted telephone number which she did not give to the appellant. Record at 25-26, 64-65.

In addition, the appellant introduced into evidence a bank savings account passbook which showed that on October 17, 1980, he opened a joint bank account in his name and the names of Faith and Victoria. Record at 72.

The Beaver County court’s decision in this case was largely premised upon a finding that the appellant did not post a visitation bond and make court-ordered child support payments. Hearing Court Opinion at 5-8. But “being a parent is more than ... a financial obligation____ [T]he performance of parental duties [is] ... an affirmative obligation to perform a composite of ‘tasks____’ [D]ereliction of one responsibility, albeit a responsibility as important as support, may not under the particular circumstances warrant a complete termination of parental rights.” In re McAhren, 460 Pa. 63, 71-72, 331 A.2d 419, 423 (1975) (emphasis in original).

Here, the appellant testified that his income was derived from operating his dairy farm. The appellant also avowed that his farm income was exceeded by his farm debts which included repayment of a Farmers Home Administration loan for $190,000 and a Production Credit Association loan for $24,500. Record at 79-80; see also Record at 81-82, 96-99, 105-06, 116, 118. The appellant stated that under the terms of his loan agreements, if any farm assets were sold, the proceeds of the sale would have to be used for debt repayment. Record at 125-28.

The appellant declared that he had tried to borrow money in order to post a visitation bond but that, given his farm’s financial situation, two lending institutions had rejected his loan applications. Record at 62-63, 106, 125. The appellant added that his farm debts prevented his sending money to support Faith and Victoria. Record at 66. Asked how he maintained himself, his new wife, and their children, the appellant explained that most of the family’s food was grown on the farm, that the family was housed on the farm, and that relatives contributed used clothing. Record at 100, 114. Thus, the appellant contended that his lack of financial support for Faith and Victoria resulted not from an unwillingness to provide for his daughters but from an inability to provide for them unless they resided on the farm.

Considering the totality of the circumstances in this case, i.e., the appellant’s continual efforts to utilize the resources available to develop a parent-child relationship, we hold that the record lacks clear and convincing evidence upon which to terminate the appellant’s parental rights.

Accordingly, we reverse the order of the Court of Common Pleas of Beaver County.

      . There is substantial confusion in this case concerning whether the appellant was afforded an opportunity to file exceptions to the hearing court’s termination order. Immediately after the conclusion of the witnesses' testimony on April 21, 1977, the court announced on the record that the appellant's rights would be terminated. As soon as the court’s decision was announced, counsel for the appellant asked that the court vacate its order and permit counsel to make a closing argument and submit a memorandum of law in support thereof. The court denied the appellant’s request and stated that the appellant could appeal the court’s decision within thirty days. Record at 223-24. Due to the extremely sensitive nature of the rights in question, see Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and the confusion stemming from the court’s comments of record we are unwilling in this instance to hold, as the appellee asks, that no issues have been properly preserved for appellate review because the appellant failed to file exceptions under the Beaver County Orphans’ Court rules. This opinion should not be construed, however, as condoning general noncompliance with the Beaver County rules mandating exceptions.

      . '“While we will not usurp the trial court’s right to assess the credibility of the witnesses appearing before him, we will not condone his ignoring facts which are of record and the credibility of which is not challenged.’ ” In re Adoption of Barnett, 304 Pa.Super.Ct. 514, 521, 450 A.2d 1356, 1360 (1982) (citation omitted). We recognize that the issue of the scope of review to be applied in involuntary termination cases is presently before our en banc court in the case of In re James J., No. 2776 Philadelphia, 1981, argued February 11, 1983; however, under either a broad or a narrow scope of review, the result in this case would be the same.

      . The appellant remarried on April 30, 1977.

      . Furthermore, the appellant testified about a series of events which led him to believe, albeit mistakenly, that the 1977 Beaver County support order was no longer in effect. Record at 70-71, 84. The assistant district attorney of Polk County, Wisconsin, informed the appellant that on February 20, 1978, the appellee withdrew a support complaint filed pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (1968), Act of December 6, 1972, P.L. 1365, 62 P.S. §§ 2043.1/43, repealed by Act of April 28, 1978, P.L. 202 [similar provisions now appear at 42 Pa.C.S. §§ 6741-80]. Record at 71, 136-43; appellant's Exhibit H. A Beaver County Domestic Relations Hearing Officer also testified that her office last contacted the appellant on March 1, 1978, after which date her office listed the parties’ file as inactive. Record at 143-45.


author:
      TAMILIA Judge:
      SPAETH, President Judge,

text:
    478 A.2d 484
    BUTTONWOOD FARMS, INC. t/a the Delta School and William A. Phillips, M.D., Appellants, v. Selma CARSON.
    Superior Court of Pennsylvania.
    Argued March 21, 1984.
    Filed June 29, 1984.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.

      Stanley M. Shingles, Philadelphia, for appellants.
    Alan B. Epstein, Philadelphia, for appellee.
    Before SPAETH P.J., and BECK and TAMILIA, JJ.
   TAMILIA Judge:

This is an appeal from a denial of appellants’ request for injunctive relief seeking to enjoin its former employee, Selma Carson, from invoking her right to arbitrate under the arbitration provision in the parties’ 1972 employment contract.

At the outset, we note that our review of a decree denying a preliminary injunction is limited to a consideration of whether there were any apparently reasonable grounds for the action of the court below. Hospital Association of Pennsylvania v. Commonwealth Department of Public Welfare, 495 Pa. 255, 433 A.2d 450 (1981); Pennsylvania Securities Commission v. Continental Manufacturing Company, 465 Pa. 411, 350 A.2d 831 (1976); Duggan v. 807 Liberty Avenue Inc., 447 Pa. 281, 288 A.2d 750 (1972); Jostan Aluminum Products Company, Inc. v. Mount Carmel District Industrial Fund, 256 Pa.Super. 353, 389 A.2d 1160 (1978). We will affirm the decision of the court below unless the record reveals a clear or manifest abuse of discretion or palpable legal error committed by the lower court. Duggan v. 807 Liberty Avenue, supra; Slander v. Kelley, 432 Pa. 1, 246 A.2d 649 (1968); Diehl v. Lockard, 254 Pa.Super. 111, 385 A.2d 550 (1978). Because we hold that the lower court did not err in concluding that appellant failed to meet its burden of establishing a substituted contract, we affirm.

In November, 1972, Carson contracted with appellant, Buttonwood Farms, to serve as its Executive Director and Chief Administrative Officer. The contract entered into provided Carson a minimum annual salary of $20,000, fringe benefits, retirement compensation and life insurance, and covered all terms and conditions of her employment, including a right to severence benefits. The contract detailed at paragraph five sets forth conditions of breach that would result in involuntary termination and forfeiture of compensation:

5. Forfeiture of compensation to EMPLOYEE subsequent to termination shall result solely upon the following conditions of breach by EMPLOYEE and for no other reason or reasons:
a) Conviction of EMPLOYEE for any felony in any court of record;
b) Intentional misappropriation of EMPLOYER’S funds and assets as may be determined by any final court of record;
c) Voluntary resignation from employment prior to age sixty.
The forfeiture of compensation by EMPLOYEE shall not be deemed a forfeiture of retirement funds vested in her and shall relate solely to subsequent salaries provided for hereunder.

The contract at paragraph ten also contains a provision providing for the arbitration of disputes:

10. In the event of any dispute arising out of or by reason of this Agreement, the parties agree to submit such dispute or disputes to the American Arbitration Association in Philadelphia, Pennsylvania, in accordance with the Rules of that Association and the parties agree to be firmly bound to the decision or award rendered by the arbitrators. Costs of the arbitration shall be borne by the EMPLOYER in such disputes as are based on alleged defaults of EMPLOYER otherwise, as to other disputes exclusive of allegations of an EMPLOYER’S breach, the costs shall be borne equally between the parties.

Carson served without incident as Executive Director until June of 1978 when concern was expressed by appellant’s Board of Directors regarding her unauthorized expenditure of monies for repairs and improvements to one of appellant’s facilities. Subsequently, the Board of Directors recommended that she take a sabbatical leave for a one year period beginning July 1, 1978, or, as an alternative, accept a position as Director of Development for the 1978-79 fiscal year. This recommendation became a one-page written agreement between the parties and was entered into on August 17, 1978. The agreement, in addition to providing Carson the option of a sabbatical or a position as Director of Development, also provided her continued compensation for the 1977-78 year and an administrative position following the sabbatical year with salary and benefits to be negotiated. The agreement made no direct reference to any of the provisions contained in the 1972 agreement nor did it expressly revoke any of its provisions. Carson chose the sabbatical option and upon her return from leave, she served for a two year period in an administrative capacity. Thereafter, Dr. Phillips, appellant’s new Executive Director, informed Carson by letter in August, 1981 that her salary for the 1981-82 school year would be reduced to $12,500 and commanded her to sign a new contract or face dismissal. As a consequence of this ultimatum, Carson sought to arbitrate the dispute under the arbitration provision contained in the 1972 agreement.

Appellant contends that the lower court erred in deciding that the provision to arbitrate contained in the 1972 agreement remained operative because any duty to arbitrate was discharged by the 1978 agreement. Appellant urges that the parties entered into a substituted agreement or novation, which has the effect of extinguishing all rights and duties under the earlier agreement. See, Restatement of Contracts § 424 (1932); Restatement (Second) of Contracts § 379, § 280 (1979).

The required essentials of a novation are “the displacement and extinction of a valid contract, the substitution for it of a valid new contract, ..., a sufficient legal consideration for the new contract, and the consent of the parties____” (emphasis supplied). Yoder v. T.F. Scholes, Inc., 404 Pa. 242, 245, 173 A.2d 120, 121-122 (1961). See First Pennsylvania Bank N.A. v. Triester, 251 Pa.Super. 372, 380 A.2d 826 (1977); 15 Williston on Contracts, § 1869 et seq. (1972); see also, Advanced Management Research Inc. v. Emanuel, 439 Pa. 385, 266 A.2d 673 (1970). The party asserting a novation or substituted contract has the burden of proving that the parties intended to discharge the earlier contract. See M.S. Jacobs and Associates, Inc. v. Duffley, 452 Pa. 143, 303 A.2d 921 (1973); Jacobson and Company v. International Environment Corporation, 427 Pa. 439, 235 A.2d 612 (1967); Yoder v. T.F. Scholes, Inc., supra; First Pennsylvania Bank N.A. v. Triester, supra; Kritz v. Axler, 134 Pa.Super. 120, 3 A.2d 943 (1939). Such intention of the parties to effect a novation or substituted contract may be shown by other writings, or by words, or by conduct or by all three. See Trustees of First Presbyterian Church of Pittsburgh v. Oliver-Tyrone Corporation, 248 Pa.Super. 470, 375 A.2d 193 (1977); Hydro-Flex Inc. v. Alter Bolt Company, 223 Pa.Super. 228, 296 A.2d 874 (1972).

Instantly, the record presents no clear evidence of the parties’ intention to supplant the 1972 contract. The 1978 one-page document fails to provide expressly that it supersedes the original agreement between the parties. See generally Schuster v. Gilbertson Coal Company, 412 Pa. 353, 194 A.2d 346 (1963). Nor does it contain all the essential terms of the original agreement, particularly, the arbitration clause, the severance pay provision, and the forfeiture of compensation provision. Furthermore the 1978 agreement cannot be read without reference to the original agreement. See e.g. Advanced Management Research Inc. v. Emanuel, supra. The promise of a one-year sabbatical to Carson derives from her then current position under the 1972 agreement. The provision of continued compensation for the year 1977-1978 is intelligible only by reference to the original agreement. Thus, it is far from clear that the parties intended the 1978 agreement to extinguish the earlier contract. Without the extinguishment of the earlier contract, there can be no novation. See Advanced Management Research Inc. v. Emanuel, supra.

We further think that it would be unreasonable to conclude that Carson would assent to a substituted contract or novation and give up her right to arbitrate as provided for by the 1972 agreement. The circumstances surrounding this case make this point. Appellant’s dissatisfaction with Carson’s performance as Executive Director in 1978 gave it few viable alternatives; they could dismiss her involuntarily or ask for her voluntary resignation, knowing that either course would in all likelihood prompt Carson to seek severance benefits through the arbitration mechanism provided in the original contract, or seek another course. As was evidenced by the testimony of Dr. Phillips at the hearing below, the strict pre-conditions permitting appellant to involuntarily terminate Carson with forfeiture of compensation benefits most likely could not be met. It is presumed Carson knew this as well. In these circumstances, then, it would be most unlikely that Carson would relinquish her right to arbitrate since doing so would not be in her best economic interests. See Jacobson and Company v. International Environment Corporation, supra. Thus, the essential element of consent to novation is also absent.

Finding no clear or manifest abuse of discretion nor palpable legal error committed by the lower court, we affirm the lower court order.

Order affirmed.

SPAETH, P.J., filed a dissenting statement.

SPAETH, President Judge,

dissenting:

Rather than affirm the trial court’s order, I should dismiss the appeal. I think that the issue of whether the trial court erred in denying a preliminary injunction is moot. The record discloses that the arbitration was scheduled for August 17, 1982, and both parties agree that it has been held.

Moreover, I am unable to agree with the majority’s determination that appellants will be unable to secure review of this issue unless it is considered on this appeal. It is for the court to determine whether an agreement to arbitrate was entered into and whether the dispute involved falls within the scope of the arbitration provision. See Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184 (1975). And this issue may be raised in a petition to vacate an arbitration award. See Hassler v. Columbia Gas Transmission Corp., 318 Pa.Super. 302, 464 A.2d 1354 (1983). Dismissal of this appeal therefore would not preclude consideration of the issue upon its being properly raised in a petition to vacate the arbitration award.

      . Although our colleague is correct that as a technical matter the instant case is moot inasmuch as the parties did proceed to arbitration, the issue that underlies the present dispute remains controverted. Effective resolution of the dispute and fair treatment of the parties compels us to review and address whether an agreement to arbitrate was entered into between the parties. (Appellants do not contest the fact that the dispute here would be arbitrable if an agreement to arbitrate existed.)
      The instant appeal is from the lower court’s order of August 6, 1982, denying appellants’ request for a preliminary injunction to enjoin arbitration that was scheduled to proceed on August 17, 1982. Appellants further requested the lower court to stay the arbitration pending appeal to our Court. This request was denied by the lower court on August 11, 1982. Appellants filed a notice of appeal to our Court, and made application to our Court to enjoin the scheduled arbitration during the pendency of the instant appeal. Our Court denied this motion on August 16, 1982. Arbitration under the rules of the American Arbitration Association proceeded as scheduled, and an award was rendered on August 23, 1982 in favor of appellee. Appellant thereafter filed a petition in the lower court seeking to vacate the arbitrator’s award, and appellee filed a petition in the lower court seeking to confirm the award and to enter judgment. The lower court, sua sponte, questioned its jurisdiction to act upon these petitions because of the instant appeal, and accordingly stayed further consideration of them pending our disposition.
      We think appellants are entitled to judicial review of the issue raised herein. Through no procedural error on their part, appellants’ efforts to stay the scheduled arbitration in order to put before an appellate tribunal the issue presented herein, were rendered futile by the lower court and this Court. See generally, Lincoln University of the Commonwealth System of Higher Education v. Lincoln University Chapter of American Assoc. of University Professors, 467 Pa. 112, 354 A.2d 576 (1976) (when one party seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to whether an agreement to arbitrate was entered into and whether the dispute involved falls within the arbitration clause). In this respect, quashing the instant appeal would, in effect, treat appellants as though they had not sought to enjoin the arbitration but had merely proceeded to arbitration without requesting the court to determine whether an agreement to arbitrate existed. Since the arbitration here was a non-judicial arbitration, see Great American Insurance Company v. American Arbitration Association, 436 Pa. 370, 260 A.2d 769 (1970) and because appellate review of such non-judicial arbitration is quite narrow, appellants would be denied judicial inquiry into whether an agreement to arbitrate existed. See 42 Pa.C.S.A. § 7341; Brennan v. Gen. Accident, Fire and Life Assurance Corporation, Ltd., 307 Pa.Super. 288, 453 A.2d 356 (1982) (party who proceeds to common law arbitration without first asking a court to find the matter at issue is not arbitrable cannot later seek to have award vacated on grounds that the dispute was not within the scope of the arbitration agreement). This, we think, is not warranted under the circumstances presented here. Confronted with a narrow scope of court review, appellants would be given no satisfactory answer to the critical issue presented here. The effective resolution of the present dispute necessitates hearing the appeal.


author: POPOVICH, Judge:

text:
    478 A.2d 488
    Richard J. PATULA and Diane Patula, his wife v. NORTHWESTERN NATIONAL INSURANCE COMPANY OF MILWAUKEE, WISCONSIN, Appellant.
    Superior Court of Pennsylvania.
    Argued April 12, 1984.
    Filed July 6, 1984.

      Edward D. Klym, Pittsburgh, for appellant.
    David B. Mulvihill, Pittsburgh, for appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an Order of the Court of Common Pleas of Allegheny County granting a new trial limited to the issue of damages after the trial court directed a verdict in favor of Richard J. Patula and Diane Patula, his wife, appellees, and against appellant, Northwestern National Insurance Company of Milwaukee, Wisconsin.

Appellees instituted an action in assumpsit to recover the replacement value of a damaged retaining wall at 10483 Frankstown Road, Township of Penn Hills, Allegheny County, under a policy of insurance provided them by appellant.

Appellant initially contended that the collapse was caused by earth movement and shifting and that the said policy specifically excluded loss resulting from earth movement. Therefore, appellant refused payment on the basis of Section VI of the aforementioned “Special Multiperil Policy” entitled “EXCLUSIONS”. This section reads as follows:

“This policy does not insure under this form against:
(c) Loss caused by, resulting from, contributed to or aggravated by any of the following:
1. earth movement, including but not limited to earthquake, landslide, mudflow, earth sinking, earth rising or shifting;”

After a trial on February 4, 1982, the lower court directed a verdict on behalf of the appellees on the issue of liability and awarded a new trial on the issue of damages. The court held that: “[T]here [was] no evidence that the [appellees] had been informed of the exclusion, or were aware of it.” The trial judge found that he had “no alternative to directing a verdict for the plaintiffs on liability,” citing Hionis v. Northern Mutual Insurance Company, 230 Pa. Super. 511, 327 A.2d 363 (1974), where it is held that

“[even] where a policy is written in unambiguous terms, the burden of establishing the applicability of an exclusion or limitation involves proof that the insured was aware of the exclusion or limitation and that the effect thereof was explained to him.” 230 Pa.Superior Ct. at 517, 327 A.2d at 365. (emphasis added)

Appellant contends that the trial court erred in directing a verdict in favor of appellees on the question of liability. Appellant acknowledges the “present legal requirement” set forth in Hionis but contends that the “Nanty-Glo Rule” precludes a directed verdict when proof depends on oral testimony.

We find it unnecessary to pursue the merits of appellant’s argument inasmuch as the Pennsylvania Supreme Court has recently overruled Hionis and its progeny in Standard Venetian Blind Company v. American Empire Insurance, 503 Pa. 300, 469 A.2d 563 (1983) in the situation where a policy limitation is clearly worded and conspicuously displayed. That appeal squarely presented the question of whether the insured may avoid the effect of a clear and unambiguous exclusion clause in the policy by showing that it was neither made aware of nor understood the effect of the exclusion.

“We believe that the burden imposed by Hionis fails to accord proper significance to the written contract, which has historically been a true test of parties’ intentions. By focusing on what was and what was not said at the time of contract formation rather than on the parties’ writing, Hionis makes the question of the scope of insurance coverage in any given case depend upon how a fact finder resolves questions of credibility. Such a process, apart from the obvious uncertainty of its results, unnecessarily delays the resolution of controversy, adding only unwanted cost to the cost of procuring insurance. Thus, Hionis, which would permit an insured to avoid the application of a clear and unambiguous limitation clause in an insurance contract, is not to be followed.” Standard Venetian, supra, 503 Pa. at 306, 469 A.2d at 567.

Under Standard Venetian, a court is not totally precluded from deviating from the plain language of a contract of insurance when, for example, the clause is unconscionable. However, the court holds that

“... where, as here, the policy limitation relied upon by the insurer to deny coverage is clearly worded and conspicuously displayed, the insured may not avoid the consequences of that limitation by proof that he failed to read the limitation or he did not understand it.” Standard Venetian, supra, 503 Pa. at 307, 469 A.2d at 567. (emphasis added)

It would be a difficult task for appellant herein to have authored a more clear and unambiguous exclusion section. Testimony at trial indicated that, indeed, appellees had never read the insurance policy. They testified that Mrs. Patula’s father “took care of all the business”, at T-142.

Since the lower court instructed the jury that “as a matter of law ... you are required to find a verdict in this case for [appellees]”, we reverse the order of the lower court and remand for a new trial on the issue of liability and damages therefor. Jurisdiction is relinquished.

      . Appellant styles this appeal as one from the Order of the Court of Common Pleas of Allegheny County, wherein a new trial is ordered on the issue of damages, and claims jurisdiction under 42 Pa.C.S. 742. Jurisdiction is conferred instead by Pa.R.A.P. 311(a)(5).

      . Indeed, appellant presented no evidence whatsoever to show that appellees had been made aware of the exclusion nor that they were, in fact, aware. The only evidence on the subject of appellees’ knowledge is testimony elicited from appellees on cross-examination by appellant that they were unaware of the policy limitation and that they had never read the policy.

      . Nanty-Glo Borough v. American Surety Company, 309 Pa. 236, 163 A. 523 (1932). That rule, as reiterated in Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979), is
      “However clear and indisputable may be the proof where it depends on oral testimony, it is nevertheless the province of the jury to decide and under the instructions from the court, as to the law applicable to the facts, and subject to the salutory power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence."

      . As of June 3, 1982, the date of its Order, the lower court was quite correct in its reliance on Hionis. Standard Venetian, which rejected the broad rule of Hionis and its progeny, was not decided until December 30, 1983.


author: WATKINS, Judge:

text:
    478 A.2d 491
    GORDON L. BROWN ASSOCIATES v. CHARNITA, INC. Appeal of UNITED STATES of America.
    Superior Court of Pennsylvania.
    Argued March 22, 1982.
    Filed July 6, 1984.

      George L. Hastings, Tax Division, U.S. Dept, of Justice, Washington, D.C., appellant, in propria persona.
    Gary E. French, Harrisburg, for participating party.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal of the United States of America (The Government) from an order of the Court of Common Pleas of Adams County from a proposed Schedule of Distribution of the proceeds of a Sheriff’s Sale. The proposed schedule reflected all lien positions of record in Adams County against Charnita, Inc., a judgment debtor of the Government and Warren A. McFadden, appellee herein. The Government contends that the judgment lien in favor of McFadden had lapsed because no authorized person undertook to revive the lien so that its lien position, second in time to that of McFadden, was therefore first in right. The court below rejected the Government’s position and affirmed the Sheriff’s proposed Schedule of Distribution. We agree and affirm the order.

McFadden’s lien interest was obtained prior to that of the Government on March 30, 1973. Judgment by confession was entered against Charnita and in favor of McFadden and his then partner, Edward J. Halloran. (The whereabouts of Halloran is unknown and he is not a party to this appeal.) The consideration for the judgment was a loan in the amount of $25,000 from the then partners to Charnita. The judgment was entered by H. Thomas Pyle, Equire, a member of the Adams County Bar, who served as local counsel to Charnita at the time of the loan. Because McFadden and Halloran did not have local counsel, the partners agreed that Attorney Pyle would appear of record on their behalf and enter judgment on the note. His fees were paid by Charnita.

The Government’s tax liens were not filed of record until September 4, 1973 and August 24, 1974, well after the entry of the McFadden-Halloran judgment. They were filed with full knowledge of the prior lien.

The lien was revived within the statutory period. On January 19, 1978, Attorney Pyle received notice from the Prothonotary that the lien was due to expire on March 30, 1978. The notice was sent to him as the attorney of record. He contacted Attorney James Hopple who was counsel for McFadden and Halloran at the time of the 1973 transaction. Hopple is not licensed to practice in Pennsylvania and suggested that McFadden be contacted by Pyle. When contacted by Pyle, McFadden advised him that he was in personal bankruptcy as of January 19, 1978. Because of the uncertainty created by the bankruptcy and the urgency of the situation, Pyle decided to revive the judgment on February 7, 1978 without express written or oral authority from any party in interest. His original authority was granted on March 30, 1973.

On November 27, 1979, McFadden’s full interest in the Charnita judgment was distributed to him by the bankruptcy trustee. McFadden and the bankruptcy trustee had immediately ratified and confirmed Pyle’s revival of the lien and no action was taken against the revival until the exceptions were filed on September 30, 1980, long after the ratification of counsel’s revival.

The question raised by the Government on appeal is as follows: “Under the principles of agency law, a principal may ‘ratify’ a prior action of a person who purported to act as an agent for that principal but in fact acted without authority, and thereby give retroactive effect to the purported agent’s action as if the action had been originally authorized. The question presented here is whether such ratification can be effective against the intervening rights of a third party.”

It is fundamental law that a principal may ratify the unauthorized acts of one not his agent. DeSilvio v. Restauire, 264 Pa.Superior Ct. 528, 400 A.2d 211 (1979). The rule applies whether the action is beneficial or not. Rose v. Rose, 385 Pa. 427, 123 A.2d 693 (1956). This is all the more reason for the rule, when as here, the action was beneficial. Such ratification preserved the lien position by revival.

The court below indicates in his opinion that Attorney Pyle was without authority to revive the judgment but that his action was ratified and confirmed by McFadden and the Trustee in bankruptcy. We agree that the court came to the right conclusion but have doubts concerning his holding that Attorney Pyle was not under the circumstances, authorized to revive the judgment, as he was the only counsel of record to preserve the interest of McFadden in the judgment he entered originally with authority.

As to the attorney of record’s authority to preserve the judgment by reviving it, it seems to follow that “an attorney who obtains a judgment for his client has continuing authority to act for him in protecting the judgment against any proceeding in the action to avoid it.” 7 Am.Jur.2d 166 (1983), In a New York case, Hendry v. Hilton, 127 N.Y.S.2d 454, 283 App.Div. 168 (1953), the question is well answered as follows:

“Until an attorney of record is discharged in the mode prescribed by law ..., the attorney is authorized to act for all purposes incidental to the entry and enforcement to the judgment; as to adverse parties his authority continues unabated.”

Order affirmed.


author: WIEAND, Judge:

text:
    478 A.2d 813
    COMMONWEALTH of Pennsylvania v. Ferron CROMWELL, Appellant. COMMONWEALTH of Pennsylvania v. Matt S. HILL, Appellant. COMMONWEALTH of Pennsylvania v. Roger WINTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 21, 1983.
    Filed March 16, 1984.
    Reargument Denied May 16, 1984.
    Petition for Allowance of Appeal Denied Oct. 1, 1984.

      See also 324 Pa.Super. 255, 471 A.2d 826; 324 Pa.Super. 258, 471 A.2d 827.

      Alan Ellis, Philadelphia, for Cromwell, appellant (at No. 1405).
    Robert C. Fogelnest, Philadelphia, for Hill, appellant (at No. 1406).

      George Henry Newman, Philadelphia, for Winter, appellant (at No. 1407).
    Daniel Lee Howsare, District Attorney, Bedford, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

Ferron Cromwell, charged with committing multiple burglaries in several counties, was tried and acquitted of four burglary charges in Somerset County. Cromwell, and also Matt Hill and Roger Winter, contend that because of Cromwell’s acquittal in Somerset County, the Commonwealth is collaterally estopped from prosecuting them in Bedford County for burglaries allegedly committed there. We disagree and affirm the order denying motions to dismiss prosecutions pending against them in Bedford County.

Jurisdiction of criminal actions in Pennsylvania is only countywide. Commonwealth v. Nichelson, 294 Pa.Super. 438, 445, 440 A.2d 545, 549 (1982). It follows that prosecutions for burglaries allegedly committed in different counties cannot be consolidated for trial. Prosecution of Cromwell for burglaries allegedly committed by him in Bedford County, therefore, is not barred by 18 Pa.C.S. § 110(l)(ii) even if it be subsequently determined that all burglaries were part of the same criminal episode. See: Commonwealth v. Simeone, 222 Pa.Super. 376, 294 A.2d 921 (1972).

Appellants’ argument that the Commonwealth is collaterally estopped from prosecuting them in Bedford County is based upon the assumed fact that the Commonwealth will be required to rely in whole or in part upon the testimony of accomplices whose credibility was successfully challenged during the trial in Somerset County. Inasmuch as the testimony of these witnesses was found not credible in Somerset County, it is argued, the credibility issue has been determined finally. Under this concept, the credibility of these witnesses could not be litigated in Bed-ford County even though the crimes there in issue were separate and distinct from the offenses for which Cromwell was tried in Somerset County and even though the evidence would not necessarily be the same.

The Fifth Amendment prohibition against placing a person twice in jeopardy for the same offense includes principles of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Commonwealth v. Hude, (Hude I), 492 Pa. 600, 425 A.2d 313 (1980); In the Interest of R.R., 317 Pa.Super. 334, 464 A.2d 348 (1983); Commonwealth v. Brown, 281 Pa.Super. 348, 422 A.2d 203 (1980). Collateral estoppel is issue preclusion. In the Interest of R.R., supra, 317 Pa.Super. at 345, 464 A.2d at 354; Commonwealth v. Lewis, 306 Pa.Super. 81, 83, 452 A.2d 13 (1982), quoting Commonwealth v. Hude, supra 492 Pa. at 617, 425 A.2d at 322. “ ‘Collateral estoppel’ is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Commonwealth v. Brown, 503 Pa. 514, 518, 469 A.2d 1371, 1373 (1983); Commonwealth v. Peluso, 481 Pa. 641, 645, 393 A.2d 344, 346-347 (1978), quoting from Ashe v. Swenson, supra 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475 (emphasis added). The principle has been incorporated into the Crimes Code in Pennsylvania at 18 Pa.C.S. § 110(2), where it is provided as follows:

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.

(emphasis added). See also: Commonwealth v. Schomaker, 501 Pa. 404, 407-408, 461 A.2d 1220, 1221-1222 (1983); Commonwealth v. Hude, supra, 492 Pa. at 614, 425 A.2d at 320-321.

The law is clear that collateral estoppel is available as a defense to a criminal charge only where the defendants are the same as the parties to the prior adjudication. See: Commonwealth v. Brown, 473 Pa. 458, 463-465, 375 A.2d 331, 334-335 (1977); Commonwealth v. Winter, 324 Pa.Super. 255, 257, 471 A.2d 826, 827 (1983); Commonwealth v. Lewis, supra, 306 Pa.Super. at 85-86, 452 A.2d at 15; Commonwealth v. Hamlin, 302 Pa.Super. 86, 89 n. 1, 448 A.2d 538, 539 n. 1 (1982), aff'd, 503 Pa. 210, 469 A.2d 137 (1983). See also: Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). Because Winter and Hill were not parties to the criminal action in Somerset County, the defense of collateral estoppel is not available to them as a defense to burglary charges in Bedford County.

Ferron Cromwell can assert the defense of collateral estoppel to the present charges in Bedford County only if an issue of ultimate fact has already been determined by the verdict of acquittal in Somerset County. The Crimes Code expresses the same conceptual requirement when it provides that a subsequent prosecution will be barred when a prior acquittal “necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.” 18 Pa.C.S. § 110(2). This requires that we

... examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.

Commonwealth v. Hude, supra 492 Pa. at 612, 425 A.2d at 319-320, quoting Ashe v. Swenson, supra 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-476. See also: Commonwealth v. Grazier, 481 Pa. 622, 632, 393 A.2d 335, 340 (1978). To assist in this determination, we use a three step approach and make:

(1) An identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was 'litigated’ in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case.

Commonwealth v. Hude, supra 492 Pa. at 613, 425 A.2d at 320 (citations omitted).

When we apply these tests to the instant matter, we find that the ultimate issues in the two actions are entirely dissimilar. The facts found by the Somerset County jury which acquitted Cromwell on burglary charges in that County are not material to the charges in Bedford County. They do not prevent a jury in the latter county from making a completely separate and different inquiry. The issues requiring adjudication in the Bedford County prosecution have not been litigated in Somerset County. Whether Cromwell participated in the burglaries with which he has been charged in Bedford County was not an issue of ultimate fact in Somerset County.

It is true, as Cromwell contends, that the testimony of witnesses who said that they had been his accomplices during the commission of offenses in Somerset County was found to be of such questionable credibility that the jury hearing the evidence refused to rest a finding of guilt on it. Credibility of testimony, as a general rule, is not an ultimate fact. Rather, it is an evidentiary fact which, when determined, enables the factfinder to move beyond the evidence and make findings of ultimate facts. Under certain circumstances, a determination of credibility may also constitute determination of ultimate fact. Thus, in Commonwealth v. Hude, supra, where the defendant had been charged with twenty counts of possession and delivery of drugs to the same person over a two month period and the only witness to all such alleged offenses was the same, self-confessed drug seller, an acquittal on three counts barred a subsequent prosecution of Hude for perjury with respect to testimony given in the drug trial. In the drug trial, it had been oath against oath. Therefore, a determination of the credibility of the witnesses in that trial was also a determination of the ultimate fact in a prosecution of Hude for perjury. See also and compare: Commonwealth v. Schomaker, supra 501 Pa. at 408, 461 A.2d at 1222.

In the instant case, the credibility of the testimony of Cromwell’s alleged accomplices with respect to the Somerset County burglaries is not an ultimate fact to be determined in the trial for burglaries allegedly committed in Bedford County. Although Cromwell’s alleged accomplices will most likely appear as Commonwealth witnesses in the proceedings in Bedford County, the jury’s determination that their testimony was not credible as it pertained to the Somerset County burglaries is not “necessarily ... inconsistent with [any] fact which must be established for conviction of the [offenses allegedly committed in Bedford County].” The testimony of these witnesses will be different. It will pertain to events separate and distinct from the events which were the subject of their prior testimony. Other evidence, whose credibility has not previously been assessed, will be available in all likelihood for use in the Bedford County action. That evidence, with or without the testimony of the alleged accomplices, may cause a jury to find Cromwell guilty beyond a reasonable doubt of committing one or more burglaries in Bedford County. The fact that the alleged offenses in Bedford County involve entirely different issues prevents the Bedford County prosecution from becoming slave to the not guilty finding made in Somerset County. See: Commonwealth v. Winter, 324 Pa.Super. 258, 263, 471 A.2d 827, 830 (1984).

The circumstances of the instant case do not paint a picture of prosecutorial harassment. The Commonwealth is not attempting to retry an acquitted defendant with the same evidence. A fair review of the record in the Somerset County prosecution leaves no doubt that Cromwell’s alleged participation in burglaries in Bedford County was not adjudicated in Somerset County, and no fact there decided is necessarily inconsistent with a fact which must be established for conviction in Bedford County. The issues were different. Therefore, the present actions are not barred by Cromwell’s prior acquittal in Somerset County.

Orders affirmed.

      . These witnesses include Paul Theodore Cromwell, the father of Ferron Cromwell, as well as Thomas Hughes, Sheila Barton and Pearl Wilt.


author: WICKERSHAM, Judge:

text:
    478 A.2d 817
    COMMONWEALTH of Pennsylvania v. Stephen Luther EVANS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 24, 1983.
    Filed June 1, 1984.

      Stephen Evans, in propria persona.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   WICKERSHAM, Judge:

This is a pro se appeal from an order of the Court of Common Pleas of Philadelphia County denying appellant’s Post Conviction Hearing Act petition.

The history behind this appeal is both lengthy and confusing. Appellant, Stephen Evans, was arrested in November of 1976 and charged with aggravated assault and related offenses. These charges stemmed from an incident in September of 1976, in which appellant allegedly shot the victim in the chest on the front steps of the victim’s house. On January 20, 1977, appellant appeared for trial, represented by the first of a long line of attorneys. Appellant waived his right to a trial by jury, and his case proceeded before the Honorable Julian F. King. When appellant failed to return to court following the luncheon recess, a bench warrant was issued. Appellant was apprehended three months later and trial resumed on May 2, 1977 before Judge King. Appellant did not take the stand and appellant’s counsel rested without presenting any witnesses, testimony, or closing statement. Appellant was found guilty of aggravated assault, recklessly endangering another person, and possession of an instrument of crime. No post-verdict motions were filed on behalf of appellant by his trial counsel.

On June 23, 1977, appellant was sentenced to imprisonment of one to two years for recklessly endangering another person, two to five years for possession of an instrument of crime, and five to ten years for aggravated assault. Each sentence was to run consecutively; thus, appellant was sentenced to a total of eight to seventeen years imprisonment. No motion for resentencing was filed by trial counsel. On July 22, 1977, appellant, by his second attorney, appealed the above sentence.

Shortly thereafter, attorney no. 2 withdrew from the case, and attorney no. 3 was retained. This court remanded the case to the trial court “for a hearing for the correction of an illegal sentence without prejudice to his right to appeal.” On April 18,1978, the sentences were vacated and appellant was resentenced, following a hearing, to the following: one to two years for recklessly endangering another person, two to five years for possession of an instrument of crime (these two sentences to be concurrent), and four to ten years for aggravated assault, to be consecutive to the first two sentences. The new sentences totalled six to fifteen years. On May 11, 1978, appellant’s counsel appealed the new sentences. While that appeal was pending, appellant filed a pro se petition under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq., in which he alleged ineffectiveness of counsel. That petition was dismissed as being premature, due to the pendency of the direct appeal. Shortly thereafter, however, the direct appeal was discontinued and appellant petitioned the lower court to reinstate his P.C.H.A. petition. This motion was granted on August 29, 1978.

At some point, attorney no. 3 withdrew from the case and attorney no. 4 was appointed by the court. There followed two amended P.C.H.A. petitions, one pro se and one by attorney no. 4. On March 27, 1979, appellant filed a pro se application to be permitted to file post-verdict motions, nunc pro tunc. Apparently this precipitated the withdrawal of attorney no. 4 in June of 1979. In August of 1979, appellant filed a pro se petition for writ of mandamus with the Pennsylvania Supreme Court. That petition was denied and referred to appellant’s recently appointed attorney no. 5.

On October 1, 1979, appellant filed the first of three federal petitions for writs of habeas corpus, alleging ineffectiveness of counsel, that his jury waiver had been unknowing, violations of his right to appeal and his double jeopardy rights, and that disposition of his state P.C.H.A. petition had been intentionally delayed. The substantive claims were substantially the same as those raised in his amended counselled state petition. On April 25, 1980, the petition was denied by the United States District Court for the Eastern District of Pennsylvania for failure to exhaust state remedies. (Memorandum and Order, Huyett, J., April 25, 1980; Civil Action No. 79-3592). On August 1, 1980, the United States Court of Appeals for the Third Circuit dismissed appellant’s appeal.

Meanwhile, appellant’s P.C.H.A. petition was still proceeding slowly through the state court system. Attorney no. 5 withdrew in January of 1980, and was replaced by attorneys no. 6 and no. 7. On July 31, 1980, attorney no. 8 filed an amended P.C.H.A. petition, and was present on January 20, 1981, when the P.C.H.A. hearing finally took place. At the hearing, appellant made a long statement to the court, expressing his belief that attorney no. 8 had not obtained the witnesses or presented the testimony that appellant had requested. The court, therefore, continued the case to February 10, 1981, to allow appellant, or his counsel, to obtain witnesses and records. (N.T., P.C.H.A. Hearing, January 20, 1981 at 42-43). On February 11, 1981, attorney no. 8 appeared in court without appellant and told the court that he was not presenting any additional witnesses. (N.T., P.C.H.A. Hearing, February 11, 1981 at 2). Shortly thereafter, attorney no. 8 withdrew from the case at appellant’s request. Appellant then filed his second federal habeas corpus petition, pro se, which was dismissed without prejudice to refile. (Order, Huyett, J., August 19, 1981; Civil Action No. 81-0722).

Attorney no. 9 subsequently entered her appearance in the state proceeding as newly retained counsel. Despite attorney no. 9’s arguments that appellant was entitled to present additional evidence in support of his P.C.H.A. petition, that petition was finally denied by the lower court on March 11, 1982. On March 15, 1982, attorney no. 9 filed the instant appeal with our court. Appellant also filed his third federal habeas corpus petition, which was again denied for failure to exhaust state remedies. Appellant appealed again to the Third Circuit Court of Appeals, which dismissed his petition in October of 1982. (Evans v. Zimmerman, et al., C.A.Misc.Rec. No. 82-8128).

In August of 1982, attorney no. 9 was permitted to withdraw and it appears that appellant has proceeded pro se since that time. While it is not completely clear just what appellant wants us to do, after reading appellant’s “Petition for Review in the Nature of an Application for a Peremptory Writ of Mandamus,” (which by order of our court is being treated as appellant’s brief), his letter dated August 4, 1982, and his reply to the Commonwealth’s letter-brief on October 21, 1982, we feel that the sole issue raised before us is whether or not appellant was denied the right to a “full, fair and complete hearing by the P.C.H.A. Court.”

After a careful review of appellant’s original pro se P.C.H.A. petition, and the subsequent amendments to that petition by appellant and by various counsel, we can group appellant’s P.C.H.A. claims into four general areas. First, he did not make a knowing and intelligent waiver of his right to a jury trial, due to his drug addiction, an insufficient colloquy, and an ignorance of certain facts concerning the trial judge and the case itself. Second, he was denied the effective assistance of counsel, chiefly because his trial counsel failed to: (1) negotiate his requested guilty plea; (2) discuss with appellant the grading of the aggravated assault charge, or the possible defenses available to him at trial; (3) present any defense at all on his behalf; (4) object to the illegality and severity of the sentence or to file a requested petition for reconsideration of sentence; and (5) file and argue post-trial motions. He was also denied the effective assistance of counsel when his resentencing counsel failed to present any mitigating circumstances or question the effectiveness of trial counsel. Third, his sentence is illegal due to the merger doctrine, a mistake in grading the aggravated assault conviction, and on double jeopardy grounds. Lastly, the trial court failed to advise him, in violation of Pa.R.Crim.P. 1123(c), that only the grounds for review contained in post-verdict motions may be raised on appeal. There are also other claims, most of which are couched in terms of ineffectiveness of various counsel, particularly attorneys no. 1, no. 3, no. 8, and no. 9 (trial counsel, resentencing counsel and P.C.H.A. hearing counsel).

Before considering the merits of this appeal, we must first determine whether these various claims have been finally litigated or waived. These claims, with the possible exception of the sentencing questions, were raised for the first time in the P.C.H.A. proceeding; they were neither argued in nor considered by the trial court. Normally, the failure to raise an issue in the trial court will be deemed a waiver of that issue and preclude this court’s consideration thereof on appeal. Commonwealth v. Pittman, 320 Pa.Super. 166, 466 A.2d 1370 (1983); Commonwealth v. Watson, 311 Pa.Super. 89, 457 A.2d 127 (1983). We consider the within claims only because of appellant’s allegations that counsel was ineffective in not presenting such claims to the trial court. A claim of ineffective assistance of counsel is an extraordinary circumstance which prevents such a waiver. Commonwealth v. Cofield, 310 Pa.Super. 356, 456 A.2d 650 (1983); Commonwealth v. Henderson, 298 Pa.Super. 180, 444 A.2d 720 (1982). Although it is somewhat unclear from the record which attorneys appellant claims were ineffective, we will not fault him for that failure since his P.C.H.A. petition and many of the following pleadings were filed pro se. See Commonwealth v. Minnick, 436 Pa. 42, 258 A.2d 515 (1969).

While we find that appellant’s claims are not waived and thus we may address them, we do not have the information before us to do so completely and accurately. Appellant cannot dispute that a P.C.H.A. hearing was held on January 20, 1981. What he does dispute is that this hearing was “full, fair and complete.” The Commonwealth argues, on the other hand, that appellant was given a full, fair and complete counselled hearing, at which he was entitled to present whatever evidence he desired.

In Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981), our supreme court endorsed the allowance óf “at least one meaningful opportunity to have the underlying issues reviewed, at least in the context of an ineffectiveness claim.” Id., 495 Pa. at 35, 432 A.2d at 186. We have carefully reviewed the transcripts of the trial, sentencing, resentencing, and P.C.H.A. hearing, and, keeping in mind the arguable merit/reasonable basis criteria for examination of an ineffectiveness claim, emanating from Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) and its progeny, see, e.g., Commonwealth v. Mayfield, 318 Pa.Super. 450, 465 A.2d 40 (1983), we are unable to hold that appellant has had that one meaningful opportunity to have the underlying issues reviewed.

The only witness called at the P.C.H.A. hearing was attorney no. 1, appellant’s trial counsel. Attorney no. 8, who was representing appellant at the time of the P.C.H.A. hearing, questioned trial counsel concerning the jury trial waiver, guilty plea bargaining, discussion of the crimes charged, why no defense was undertaken, and why neither a motion for reconsideration of sentence nor post-trial motions were filed. After trial counsel concluded his testimony, appellant requested the opportunity to make a statement to the court. Then followed a long statement by appellant alleging that attorney no. 8 (appellant’s counsel at this hearing) had discussed the facts of the case with him on only one occasion prior to the hearing. Thus, given attorney no. 8’s unfamiliarity with appellant’s allegations of ineffectiveness, he felt that his case was not being properly presented. (N.T., P.C.H.A. Hearing, January 20, 1981 at 21-28). Therefore, at the end of the hearing, attorney no. 8 was given permission to present witnesses on behalf of appellant at a future date. The court continued the case for three weeks to provide time for appellant’s counsel to contact those witnesses.

At the continuation of the hearing three weeks later, attorney no. 8 appeared without appellant, and told the court that he was not presenting any additional witnesses in the case. (N.T., P.C.H.A. Hearing, February 11, 1981 at 2). The court then marked the case “hearing held under advisement” and adjourned. One year later, appellant appeared in court with attorney no. 9. Attorney no. 9 reviewed the problems with attorney no. 8’s presentation of appellant’s case at the January 20, 1981 hearing, and explained that attorney no. 8 appeared in court on February 11, 1981, without his client and told the court that there would be no further witnesses. (N.T., P.C.H.A. Hearing, March 11,1982 at 6-7). At that time, attorney no. 9 requested the opportunity to put on further evidence on appellant’s behalf. The court, after hearing argument, refused any further testimony and denied appellant’s P.C.H.A. petition. The court stated that “[t]here has to be an end to it. Let him litigate it in the appellate Courts.” (N.T., P.C.H.A. Hearing, March 11, 1982 at 13).

While we agree with the lower court that there must be an end to the case, and while we can empathize with the lower court’s distaste for prolonged P.C.H.A. appeals, we do not feel that appellant’s P.C.H.A. hearing, as conducted, was full, fair and complete enough to enable our court to review it. Most of appellant’s allegations in his petition were never addressed at the hearing, and appellant was never given the opportunity to address them later due to attorney no. 8’s waiver of further testimony at the February 11, 1981 hearing, at which appellant was not even present. We feel that under Commonwealth v. Alexander, supra, appellant deserves a chance to be able to completely and fully present all the allegations raised in his pro se P.C.H.A. petition and the subsequent amended petitions.

We would be inclined to affirm the lower court on the basis of the testimony presented on January 20, 1981. But given the circumstances of this case, particularly appellant’s allegations of unpreparedness of his P.C.H.A. attorney, and our inability to dispose of nearly all the issues on the record before us, we must remand for a further evidentiary hearing. We admonish appellant to present all his P.C.H.A. claims at this time; like the trial court, our patience is not limitless. We also remand for appointment of counsel to assist appellant in this endeavor.

Remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . The sentencing transcript states that appellant was sentenced to two to five years imprisonment on this charge. (Sentencing Transcript, June 23, 1977, at 6-7). However, the docket entry shows a sentence of two and one-half to five years imprisonment. We find this conflict to be immaterial to our decision in this appeal.

      . Appellant’s pro se P.C.H.A. petition appears to allege the ineffectiveness of both trial counsel and resentencing counsel (attorneys no. 1 and no. 3).

      . It appears that' the trial court advised appellant by letter dated June 26, 1979, that it was holding this petition in abeyance until after his P.C.H.A. hearing. Appellant’s Brief, or "Petition for Review,” Exhibit G. The disposition of the motion after the P.C.H.A. hearing is unclear from the record.

      . Appellant claims that he was not notified by attorney no. 8 of these proceedings, and since he was incarcerated, he was of course, not present. He alleges that he discovered the events of February 11, 1981 only after he sent to the lower court on February 18, 1981 a list of witnesses to be subpoenaed and their probable testimony. He also requested at the time the removal of attorney no. 8, and to proceed pro se.

      . It appears from the record that appellant’s application of March 27, 1979, requesting permission to file post-verdict motions, nunc pro tunc, was never ruled upon and is still outstanding before the lower court.
      It also appears that, during the pendency of this appeal, appellant filed a petition for writ of habeas corpus to the Pennsylvania Supreme Court, in which he alleged that his present sentence is illegal due to the merger doctrine. On December 3, 1982, the supreme court "remanded to Superior Court for expeditious disposition.” Despite our efforts, we cannot find any such petition in the record before us, and we have not been able to discover what happened, if anything, to the petition. A letter-brief from the Commonwealth, dated January 31, 1983, tells us that appellant filed a motion for leave to file a supplement to the petition for a writ of habeas corpus, and an accompanying supplement to the petition. The Commonwealth’s response to that motion is contained in its letter-brief. However, since we do not have before us the original petition for a writ of habeas corpus, the supplement to it, the motion to file a supplement to it, or anything else relating to such a motion, we cannot possibly decide any such sentencing issue at this time.