author: ROWLEY, Judge: SPAETH, Judge,

text:
    461 A.2d 1237
    COMMONWEALTH of Pennsylvania, Appellant, v. Earl LYLES.
    Superior Court of Pennsylvania.
    Argued May 3, 1982.
    Filed April 29, 1983.
    Reargument Denied July 12, 1983.
    Petition for Allowance of Appeal Denied Nov. 1, 1983.

      Joseph W. Carroll, III, Assistant District Attorney, West Chester, for Commonwealth, appellant.
    Dennis D. Brogan, West Chester, for appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   ROWLEY, Judge:

This is an appeal by the Commonwealth from an Order granting appellee’s Motion in Arrest of Judgment on the ground that the Commonwealth had violated Pa.R.Crim.P. 1100.

On June 24, 1977, a criminal complaint was filed in Chester County against appellee charging him with robbery, criminal conspiracy, theft, receiving stolen property, recklessly endangering another, terroristic threats, and unlawful restraint. Appellee was arrested on June 28, 1977. A preliminary hearing was held on July 22, 1977, at which appellee was granted bail and given written notice of his arraignment scheduled for August 29, 1977. Appellee ■ failed to appear for arraignment and a bench warrant was subsequently issued on September 12, 1977. On November 2, 1977, appellee was hospitalized at St. Luke’s Hospital in Philadelphia with serious injuries as a result of a “shootout” with the Philadelphia police. On December 8, 1977, the Commonwealth filed a Petition to Extend the time for trial. The petition was unopposed by appellee. On February 22, 1978, a ninety (90) day extension was granted to the Commonwealth. On May 3, 1978, appellee was transferred from St. Luke’s Hospital to the Graterford Prison Medical Unit in Montgomery County. On May 17, 1978, the Commonwealth filed a second Petition to Extend the time for trial. On August 17, 1978, after an evidentiary hearing, the Commonwealth’s second petition was granted and the time for trial was extended to August 28, 1978. This second extension is the subject of this appeal. Trial began on August 28, 1978. Appellee was convicted of two counts of robbery. Post-trial motions resulted in the granting of appellee’s Motion in Arrest in Judgment by the court en banc. This appeal followed.

Four issues, as stated by the Commonwealth, are raised on appeal: 1) Whether appellee waived his right to raise the Rule 1100 issue?; 2) Whether the Commonwealth must establish that it exercised due diligence in attempting to execute a bench warrant in order to qualify for exclusion of time under Rule 1100?; 3) Whether the court en banc may make findings of fact contrary to that of the hearing court? and 4) Whether the Commonwealth has exercised due diligence when it tries a defendant within the time period of Rule 1100 as extended?

The Commonwealth first argues that appellee waived the Rule 1100 issue by failing to file a Motion to Dismiss prior to trial. It is undisputed that appellee opposed the second Petition to Extend, consequently, the issue has been preserved for appellate review. Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978).

The Commonwealth’s next three arguments deal with whether it exercised due diligence so as to justify the extension granted on August 17, 1978.

In reviewing an alleged Rule 1100 violation, all periods of delay beyond the prescribed period of 180 days must be either excluded from the computation or justified by an order granting an extension, pursuant to the terms of the rule, if the Commonwealth is to prevail. Commonwealth v. Hoffman, 255 Pa.Super. 66, 386 A.2d 138 (1978). The trial court found a total of 248 days to be excludable: they are the sixty-five (65) day period from August 29, 1977 until November 2,1977 when appellee was a fugitive, and the 183 day period from November 2, 1977 until May 3, 1978 during which appellee was hospitalized. The trial court concluded, however, that even excluding the 248 days, appellee was brought to trial after the Rule 1100 period had expired. The court calculated that 431 days had elapsed between June 24, 1977 and August 28, 1978. Therefore, subtracting the 248 days excludable time from the 431 days, the court concluded that appellee was brought to trial 183 days after the complaint was filed. Consequently, the court went on to determine whether the Commonwealth had exercised due diligence in attempting to bring appellee to trial so as to justify the extension of the date for commencement of trial to August 28, 1978. The trial court concluded that the Commonwealth had not exercised due diligence and granted appellee’s Motion in Arrest of Judgment.

We agree with the trial court that the sixty-five (65) day period from August 29, 1977 until November 2, 1977 when appellee was a fugitive, and the 183 day period from November 2, 1977 until May 3, 1978, during which appellee was hospitalized, were properly excluded. Nevertheless, because our calculation of the time which elapsed between the filing of the complaint and the date of trial differs from that of the trial court, we have found no Rule 1100 violation and, therefore, reverse and remand for further proceedings.

With respect to the two excludable periods of time, we note that Rule 1100(d), pertaining to “exclusions” for periods of delay attributable to the accused or his attorney, has been held to require proof of “due diligence in order for the Commonwealth to avail itself of [the] exclusion^].” Commonwealth v. Mitchell, 472 Pa. 553, 561, 372 A.2d 826, 830 (1977). Under Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1331 (1978), however,” a defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself.” (Emphasis added). In such a situation, “the concept of due diligence ... is misplaced in a speedy trial analysis.” Id., 481 Pa.Superior at 355, 392 A.2d at 1331. Consequently, in the case at hand, the sixty-five (65) day period from August 29, 1977 until November 2, 1977 when appellee was a fugitive, was, under Cohen, properly excluded. A due diligence inquiry during that period of time would be “misplaced.”

As for the 183 day period of appellee’s hospitalization which extended from November 2, 1977 until May 3, 1978, such a period is excludable so long as the Commonwealth was “satisfied ... that [appellee] was seriously ill and hospitalized.” Commonwealth v. Haynes, 245 Pa.Super. 17, 21, 369 A.2d 271, 273 (1976). The Commonwealth knew that appellee had been seriously injured on November 2, 1977, in an incident involving the police which had left him with some form of paralysis. Two attempts to list appellant’s case in December of 1977 and January of 1978 were striken because appellee was still hospitalized. The Commonwealth explained its understanding of the magnitude of appellee’s injuries and his resulting unavailability at the February 22, 1978, hearing on its first Petition to Extend. At that hearing the attorney for the Commonwealth stated:

MISS TROIANI: Your honor, Mr. Lyles is in the hospital and it seems that he will be there for a number of months. He was shot by Philadelphia police, and, therefore, we would ask for an extension possibly until this summer because it doesn’t look like he is going to be available for quite awhile.

It is obvious from that statement that the information the Commonwealth had concerning the nature of appellee’s injuries led it to believe that appellee would be unavailable for trial while he was hospitalized,. That belief was left unchallenged by counsel for appellee. “Due diligence” being a relative concept which varies with the circumstances of each particular case, it is our conclusion that, under the circumstances of this case, the Commonwealth exercised due diligence so as to avail itself of the 183 day period of exclusion. We are satisfied that the record shows that the Commonwealth took measures to ascertain that appellee, who was injured as a result of his own criminal conduct, “was seriously ill and hospitalized,” Haynes, supra, and that the Commonwealth was justified in concluding that the extent and nature of appellee’s injuries was such as to render him unavailable for trial during his period of hospitalization. Consequently, this 183 day period when added to the sixty-five day period noted above produced 248 days of excludable time.

Contrary to the calculations of the trial court, we have determined that 430 days elapsed between the filing of the complaint and date of trial, since the first day of the period is excluded from the computation. 1 Pa.C.S.A. § 1908; Pa.R.Crim.P. 2; Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977). Thus, excluding a total of 248 days, the operative date for commencement of trial under Rule 1100 was extended by that number of days, placing the run date at August 26, 1978. However, August 26, 1978 was a Saturday. Under the Rules of Statutory Construction, Saturday, August 26 and Sunday, August 27 are excluded from our computation. 1 Pa.C.S.A. § 1908. Therefore, the run date in this case was actually August 28, 1978, the date of trial. Since by our calculations appellee was brought to trial in accordance with the provisions of Rule 1100, we hold that the trial court erred in concluding that Rule 1100 had been violated.

In his Motion in Arrest of Judgment, appellee also questioned the sufficiency of the evidence. This issue was not addressed by the trial court, nor was it raised on appeal by the Commonwealth. On remand, the question of whether the evidence presented was sufficient to convict appellee must be disposed of by the trial court before sentencing.

Order reversed and case remanded for further proceedings.

Jurisdiction is relinquished.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

I am unable to subscribe to the majority’s opinion for two reasons. First, the majority’s arithmetic is in error. It is contradicted by the record, which shows that the trial did not occur on the 180th day but on the 197th day. But even on the majority’s view of the record, the trial was held too late. Second, the majority finds that anyway, the Commonwealth exercised due diligence. For my part, I agree with the lower court’s finding, which is more than amply supported by the record, that the Commonwealth did not exercise due diligence.

The Commonwealth filed its criminal complaint against appellee on June 24, 1977. In the ordinary course, Rule 1100 required the Commonwealth to bring appellee to trial by December 21, 1977, unless it applied for, and showed that it was entitled to, an extension under Rule 1100(c).

On September 12, 1977, appellee failed to appear for arraignment and a bench warrant was issued for his arrest. On November 2 appellee was hospitalized as a result of serious injuries that he sustained in an incident involving the police. He remained hospitalized until May 3, 1978, when he was released and placed in the medical center of Graterford Prison.

Meanwhile, on December 8, 1977, the Commonwealth filed a petition for an extension of the Rule 1100 period. On February 22, 1978, a hearing was held on the Commonwealth’s petition. The Commonwealth requested a 90-day extension. Appellee’s counsel did not oppose the request, and the lower court extended the time by which the Commonwealth had to bring appellee to trial to May 22, 1978.

On May 17, 1978, the Commonwealth filed a second petition for an extension. On August 16 a hearing was held on the petition, and on August 17, over appellee’s objection, the lower court extended the time for trial to August 28.

Appellee was tried on August 28, and was convicted. He renewed his objection to the second extension in a motion in arrest of judgment, and on April 3, 1980, the lower court granted the motion. On April 15 the court dismissed the charges against appellee and ordered him discharged. It is from that order that the Commonwealth has appealed.

1

a

The majority finds that the date appellee failed to appear for arraignment was August 29, 1977.' At 1239. This finding is contradicted by the record, which shows that the date that appellee failed to appear was September 12.

No docket entry identifies August 29 as the date for appellee’s arraignment. Indeed, there are no docket entries for August 29, 1977. For September 12, 1977, there is the following entry: “Bench warrant issued—Fail to appear for arraignment—...” The Commonwealth’s first petition for an extension, dated December 8, 1977, states that on September 2 the Commonwealth requested that the case be listed for trial during the October term. It is unlikely that if appellee had been missing on August 29, the Commonwealth would have made such a request on September 2. Finally, at the hearing on the second petition for an extension the assistant district attorney stated to the court that “defendant [appellee] failed to appear for formal arraignment on September 12, 1977, and your Honor issued a Bench Warrant for his failure to appear on that date.” N.T. 8/16/78, 7.

I recognize that the lower court says that the arraignment was on August 29. However, while we must defer to findings of fact by the lower court, that is so only if the findings are supported by the record. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975). Here the record does not support but contradicts the lower court’s finding.

The majority relies heavily on the fact that on July 22, 1977, appellee acknowledged receipt of a notice stating that arraignment would be on August 29, but that shows only when the arraignment was scheduled, not when it was held. The majority says that the assistant district attorney “misstated” the date of the arraignment, when he told the lower court that it was held on September 12, but that the Commonwealth has now “corrected its error” in its brief. At 197-98 n.l. It is a novel proposition, for which the majority doesn’t, and couldn’t, cite any authority, that a party may by a statement in a brief “correct” a statement made of record. We should abide by the record and ignore the contrary statement in the Commonwealth’s brief. A brief is not part of the record. Pa.R.A.P. 1921; Mansfield v. Lopez, 288 Pa.Super. 567, 432 A.2d 1016 (1981); Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981); Gee v. Eberle, 279 Pa.Super. 101, 420 A.2d 1050 (1980).

Had the majority abided by the record, it would have been obliged to find that the trial was held too late. The 180-day period started to run from the filing of the complaint. Commonwealth v. Mitchell, supra. It stopped running when appellee failed to appear for his arraignment. Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979). By stopping the running of the period on August 29, the majority gains time for the Commonwealth. If the running of the period is not stopped until September 12, it will be found by reference to the calendar that the trial was not held until the 197th day.

b

Even if the majority were entitled to find that appellee failed to appear for his arraignment on August 29, still, the trial was held too late.

The majority says:

We agree with the trial court that the sixty-five (65) day period from August 29, 1977 until November 2, 1977 when appellee was a fugitive, and the 183 day period from November 2, 1977 until May 3, 1978, during which appellee was hospitalized, was properly excluded.
At 200.

The majority then concludes:

Consequently, this 183 day period when added to the sixty-five day period noted above produces 248 days of excludable time.
At 202.

Excluding 248 days, the majority finds that the run date was August 26, 1978, but, that being a Saturday, the Commonwealth had until August 28 to try the appellant. At 202.

The difficulty with this reasoning is that the period from November 2, 1977, to May 3, 1978, is not 183 days but 182. Thus, the excludable time was not 248 days but 247, so that appellee was tried not on the 180th day but the 181st (or rather, since a weekend intervened, on the 183rd).

2

By its terms, Rule 1100(c) permits an extension of the 180-day period within which a defendant may be tried “only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.” See, e.g., Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Thus, the Commonwealth may assert that the defendant is unavailable as a fugitive, Commonwealth v. Mitchell, supra, or because he is incarcerated in another jurisdiction and awaiting disposition of the charges against him there, Commonwealth v. Williams, 284 Pa.Super. 125, 425 A.2d 451 (1981), or because he is hospitalized, Commonwealth v. Haynes, 245 Pa.Super. 17, 369 A.2d 271 (1976), but to prove unavailability, the Commonwealth must always prove by a preponderance of the evidence that it has exercised due diligence in locating the defendant and bringing him to trial within the period set for trial. As this court stated in Commonwealth v. Warman, 260 Pa.Super. 130, 393 A.2d 1046 (1978):

Rule 1100(d)(1) provides that “[i]n determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from: (1) the unavailability of the defendant or his attorney.” Mere incarceration in another jurisdiction does not make appellant unavailable. Appellant will be considered unavailable only for the period during which his presence could not be secured despite due diligence by the Commonwealth.
Id., 260 Pa.Superior at 135, 393 A.2d at 1049 (citations omitted).

When one examines the question of the Commonwealth’s diligence, one must conclude that the Commonwealth failed to meet its burden of proving by a preponderance of the evidence that it was unable, despite its due diligence, to bring appellee to trial by May 22. Commonwealth v. Ehredt, supra, Commonwealth v. Hill, 290 Pa.Super. 399, 434 A.2d 813 (1981).

The majority relies on one case to support its conclusion that the Commonwealth showed due diligence in trying to bring appellee to trial within the period of the first extension. Citing Commonwealth v. Haynes, 245 Pa.Super. 17, 21, 369 A.2d 271, 273 (1976), the majority states that “the 183 day period which extended from November 2, 1977 until May 3, 1978, ... is excludable so long as the Commonwealth was ‘satisfied ... that [appellee] was seriously ill and hospitalized.’ ” At 1240. The exact quotation from our opinion in Haynes, and an examination of the record in this case, shows that the two cases are quite different. In Haynes we said:

Testimony of the Philadelphia Detective in charge of the case shows that from August 3, 1973, to October 9, 1973, numerous phone calls to the Delaware County authorities satisfied him that appellant was seriously ill and hospitalized.
245 Pa.Super. at 21, 369 A.2d 273.

There were no “numerous phone calls” here. Instead, the Commonwealth did nothing to determine whether appellee would be able to be tried before the end of the ninety-day extension the Commonwealth received at the hearing on February 22, 1978.

At the hearing on the Commonwealth’s second petition for an extension, the assistant district attorney offered as exhibits three letters from his office to the county court administrator, requesting that this case be listed for trial. N.T. 8/16/78, 43, 44, 48. The letters were dated May 16, July 12, and July 26, 1978.

The court administrator testified that his office had refused to list the case for trial because the court records showed that a bench warrant for appellee was outstanding. On the basis of these records, the court administrator testified, he believed appellee to be a fugitive. N.T. 8/16/78, 27-28. Despite this belief, however, the court administrator’s office never told the district attorney’s office that the case would not be listed for trial. The court administrator acknowledged receiving the letters from the district attorney’s office requesting that the case be listed for trial, but instead of acknowledging the letters or otherwise explaining why despite them the case would not be listed, he simply' made a note on the letters that a bench warrant was outstanding, and placed them in his file. N.T. 8/16/78, 29, 31. It appears to have been the court administrator’s position that both he and the district attorney got a copy of the same records, showing a bench warrant outstanding, and that if the district attorney didn’t know that the court administrator considered appellant a fugitive, he should have known. Id.

It was not “[u]ntil about a week,” N.T. 8/16/78, 30, before the hearing on the Commonwealth’s second petition for an extension—in other words, not until almost three months after the date set for trial in response to the Commonwealth’s first petition, that someone from the district attorney’s office telephoned the court administrator and asked why the case hadn’t been listed for trial. N.T. 8/16/78, 30. Then, for the first time, the court administrator expressed his belief—mistaken—that the appellee was a fugitive. The representative of the district attorney’s office called back “in about one hour,” id., said that “we will have him,” id., and a trial date was arranged.

The record further discloses, to quote the opinion of the lower court, “at least three instances of inadequate record keeping” on the part of the district attorney’s office. At 1240 n. 2. As has been mentioned, the district attorney’s office had a bench warrant issued on September 12, 1977, when appellee failed to appear for arraignment. Yet the warrant was never executed until June 20, 1978, or a month after May 22, 1978, the date set for trial in response to the Commonwealth’s first petition. N.T. 8/16/78, 36, 70. Also, although the district attorney knew that appellee was hospitalized, it evidently made no request of the hospital to be advised when appellee would be discharged. Cf. Commonwealth v. Haynes, supra. When the lower court asked the assistant district attorney to whom his office had looked to keep track of appellee (“Montgomery County Police Department, or Sheriffs Office, or what?”), the assistant district attorney replied: “It would have been Upper Mer-ion, I believe, was the township where there were charges— they were watching closer to him than we were. They had first claims on him, if you will.” N.T. 8/16/78, 13. Finally, the assistant district attorney learned in mid-May 1978 from reading a local newspaper that appellee had been in the Montgomery County court the previous day, N.T. 8/16/78, 14, 20-23, and yet it was not until mid-August, in the telephone conversation mentioned above, that the district attorney’s office notified the court administrator that appel-lee was not a fugitive but available for trial, N.T. 8/16/78, 30.

It is settled that the Commonwealth’s bare assertion of due diligence without more will not support a finding of due diligence. See, e.g., Commonwealth v. Antonuccio, 257 Pa.Super. 535, 390 A.2d 1366 (1978) (per curiam); Commonwealth v. Porter, 251 Pa.Super. 346, 380 A.2d 812 (1977). As our Supreme Court has stated: “When a case has Rule 1100 problems, prosecutors must do everything within their power to see that the case is tried on time.” Commonwealth v. Smith, 477 Pa. 424, 428, 383 A.2d 1280, 1282 (1978). Moreover, this court has held that the Commonwealth must show that it has exercised due diligence in executing a bench warrant. Commonwealth v. Snyder, 280 Pa.Super. 127, 133-34, 421 A.2d 438, 441 (1980) (“mere issuance of a bench warrant does not establish due diligence”); Commonwealth v. Boerner, 281 Pa.Super. 505, 510-11, 422 A.2d 583, 585 (1980) (Commonwealth entitled to unavailability exclusion if it establishes that police acted with due diligence in executing an arrest warrant).

Here for nine months the Commonwealth made no effort to execute the bench warrant. Even though the Commonwealth knew that the period of the first extension was running, it made no effort to keep track of appellee, only accidentally learning of his whereabouts just before the period ended, by reading a newspaper account of appellee’s appearance in the Montgomery County court. And finally, there was a complete failure on the part of the district attorney’s office and court administrator’s office to communicate with each other. As the lower court observed, “The assistant district attorney may not be allowed to pass the blame for delay on to the Court Administrator. Both the prosecutor and the Court Administrator are responsible for the management of the court calendar.” At 199 n. 2. See Commonwealth v. Metzger, 249 Pa.Super. 107, 115, 375 A.2d 781, 785 (1977). When the two offices finally did communicate with each other in August, three months after the period of the first extension had expired, the case was at once listed for, and brought to, trial. No matter how read, such a record cannot support a finding that the Commonwealth met its burden of showing due diligence in bringing appellee to trial.

The order of the lower court should be affirmed.

      . Appellee acknowledged receipt of this notice on July 22 by placing his signature on the same, the original of which is found in the record lodged with this Court on appeal. The notice signed by appellee was a form notice with the appropriate information typed in the alloted spaces. August 29, 1977, was typed in the space provided on the notice form for the date of formal arraignment. An examination of the entire record in the case reveals no change in or continuance of that August 29, 1977 formal arraignment date. The fact that the docket shows that an order issuing a bench warrant for appellee was signed on September 12, 1977, is conclusive of nothing except that an order issuing a bench warrant for appellee was signed on September 12, 1977. To infer that September 12, 1977, was the date of formal arraignment because the bench warrant was issued on that date is to engage in speculation. Although the Commonwealth at the hearing on its second petition for extension misstated the date of formal arraignment as September 12, 1977, the Commonwealth in its brief to this Court has corrected its error and now agrees that August 29, 1977, was the proper date. Finally, and dispositively, the trial court, as the finder of fact, determined that August 29, 1977, was the date set for appellee's formal arraignment and based its computation of time on that date. Because the record supports the trial court’s finding in this respect, we, as an appellate court, are bound to that finding and are not free to disregard it. Therefore, the date of appellee’s formal arraignment stands as August 29, 1977.

      . The Commonwealth now argues that another time period, May 4, 1978, to May 14, 1978, should be excluded. The Assistant District Attorney testified that he discovered appellee had been released from the hospital by means of a newspaper article on May 14, which stated that appellee had appeared in Montgomery County court the day before. The Commonwealth did not discover for ten days that appel-lee had been released from the hospital because of its own lack of diligence. This period, therefore, is not excludable.

      . We note, for reasons of clarity, that the sixty-five (65) day period when appellee was a fugitive is calculated as beginning on August 29, 1977, and ending on November 1, 1977. The 183 day period when appellee was hospitalized is calculated as beginning on November 2, 1977, and ending May 3, 1978. In mathematically computing the first period of excludable time, we count August 29, 1977, as the first day of that period because appellee was, under the facts, unavailable as of that date as a fugitive from justice. Likewise, November 2, 1977, is counted as the first day of the second period of excludable time because appellee was, as of that date, confined in the hospital with serious injuries. Whether a criminal defendant or his attorney is unavailable within the meaning of Rule 1100(d) is a factual determination. The duration of such “unavailability", if any, is also factual determination. Because such periods of time are factually determined and not statutorily prescribed, they do not, unlike the 180 day period specified in Rule 1100(a)(2), fall within the purview of 1 Pa.C.S.A. § 1908.

      . Thus, our calculation is as follows:
      1977 - June 6 days
      July 31 days
      August 31 days
      Sept. 30 days
      Oct. 31 days
      Nov. 30 days
      Dec. 31 days
      1978 - Jan. 31 days
      Feb. 28 days
      March 31 days
      April 30 days
      May 31 days
      June 30 days
      July 31 days
      August 28 days
      430 days

      . Rule 1100 does not necessarily require that a criminal defendant be tried within 180 calendar days from the date on which the complaint was filed in order for trial to commence in a timely fashion. The running of the 180 day interval can either be suspended by period of delay justifiably excluded under Rule 1100(d), or extended by period of delay adequately explained under Rule 1100(c). In this case, the running of the 180 day period was suspended during appellee’s two periods of unavailability.

      . The majority declines to accept this fact. The record showing that it nevertheless is fact is discussed infra.

      . The majority states that it has counted August 29 (the day, according to the majority, that appellee failed to appear for arraignment) as the first day that appellee was unavailable. In similar cases, however, the day that the defendant first became unavailable has not been counted. See, e.g., Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978) (defendants unavailable for 20 days—from June 26, 1975, when they failed to appear for arraignment, until July 16, 1975, when they appeared in court); Commonwealth v. Bell, 283 Pa.Super. 196, 423 A.2d 1056 (1980) (defendant unavailable for 36 days—from December 14, 1976, when he failed to appear for trial, until January 19, 1977, the day he surrendered).
      In excluding the day that the defendant first became unavailable in Cohen and Bell, the courts did not cite the Statutory Construction Act. However, the Act provides: "When any period of time is referred to in any statute, such period in all cases, ... shall be computed as to exclude the first and include the last day of such period.” 1 Pa.C.S.A. § 1908. In Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977), moreover, it was held that § 1908 is to be used in computing the 180-day period under Rule 1100(a)(2). Since we are to use § 1908 in computing the 180-day period, we should do the same in computing periods to be excluded from the 180-day period under Rule 1100(d)(1).
      By computing the periods to be excluded by the method used in Cohen and Bell, supra, that is, not counting August 29, 1977, but counting May 3, 1978, the day appellee was released from the hospital, it will be seen that 247 days are excluded from the period:
      1977 August 2
      September 30
      October 31
      November 30
      December 31
      1978 January 31
      February 28
      March 31
      April 30
      May 3
      247
      When the 247 excluded days are subtracted from the 430 days that elapsed from June 24, 1977, the date the complaint was filed, until August 28, 1978, the date of trial, it is clear that trial occurred on the 183rd day. Because it, mistakenly I suggest, excludes 248 days, the majority concludes that the 180th day was Saturday, August 26, and that therefore, under 1 Pa.C.S.A. § 1908 (when the last day of the period falls on a Saturday or Sunday, such day is to be omitted from the computation), trial could begin on Monday, August 28, without violating Rule 1100. Since only 247 days should be excluded, the 180th day was Friday, August 25, and trial should have begun on that day.


source: Caselaw Access Project

author:
CIRILLO, Judge:
      SPAETH, Judge,

license: Public Domain

text:
    461 A.2d 1246
    COMMONWEALTH of Pennsylvania v. Daniel J. KANE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1982.
    Filed April 29, 1983.
    Reargument Denied July 19, 1983.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.

      Stanley M. Shingles, Philadelphia, for appellant.
    Stephen B. Harris, Assistant District Attorney, Doyles-town, submitted a brief on behalf of Commonwealth, appel-lee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Bucks County imposed after revocation of probation.

On July 14, 1976 the appellant, Daniel J. Kane, appeared before the Honorable William Hart Rufe, III and pleaded guilty to charges of possession of a controlled substance (methamphetamine), simple assault and resisting arrest. He was placed on probation for one year.

On June 9, 1977, while still on probation, appellant was arrested by federal authorities on charges of conspiracy to manufacture, manufacture, and possession of a controlled substance. A probation violation hearing was held on July 11, 1977. The appellant was charged with four violations: 1) failure to advise the probation department of his change of address; 2) failure to report during the months of May and June; 3) failure to report his employment status; and 4) failure to report his June 9th arrest by federal authorities. The lower court found that the first three charges had been proved and extended the appellant’s probation two years. The court deferred any finding on the fourth charge until the federal prosecution of the appellant had been completed.

In October, 1977 the appellant became a fugitive. Two years later, on November 25, 1979, he was apprehended by federal authorities. On January 16, 1980 he pleaded guilty to the federal charges and on March 3, 1980 he was sentenced to four years imprisonment to be followed by two years probation. In September, 1980 a probation violation hearing was held. On the basis of his federal conviction, the lower court revoked the appellant’s probation and sentenced him to a term of imprisonment of not less than 1 year nor more than 5 years, to be served concurrently with his federal sentence. This appeal followed.

Initially, the appellant contends on appeal that he was denied his right to a speedy probation revocation hearing. This claim is based on a delay of over eight months in the commencement of the hearing. The Pennsylvania Rules of Criminal Procedure mandate the following:

Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that the defendant violated a condition of probation or parole. In the event that probation is revoked and sentence is reimposed, the judge shall comply with the pertinent provisions of Rule 1405.

Pa.R.Crim.P. 1409; 42 Pa.C.S.A.

Rule 1409 does not establish a presumptive period within which the Commonwealth must revoke probation or parole and the Superior Court has refused to establish such a prophylactic rule. Commonwealth v. Boykin, 270 Pa.Super. 592, 411 A.2d 1244 (1979); Commonwealth v. Young, 262 Pa.Super. 253, 396 A.2d 741 (1978); Commonwealth v. Jones, 250 Pa.Super. 116, 378 A.2d 481 (1977). Rather, this Court has held that the time period referred to in Rule 1409 is a “reasonable time.” Commonwealth v. Johnson, 277 Pa.Super. 88, 419 A.2d 674 (1980); Commonwealth v. Waters, 252 Pa.Super. 357, 381 A.2d 957 (1977); Commonwealth v. Holmes, 248 Pa.Super. 552, 375 A.2d 379 (1977). In determining “reasonableness” under Rule 1409, a panel of this Court (per Judge Johnson) stated:

The courts have held that the requirement of Rule 1409 is not to be determined solely by the length of time between the conviction and the hearing. Rather, the question is one of what constitutes a reasonable time under the circumstances. Commonwealth v. Young, 262 Pa.Super. 253, 256, 396 A.2d 741, 742 (1978). To determine the reasonableness of the delay, the court examines three factors: the length of the delay, the reasons for the delay, and the prejudice to the defendant as a result of the delay. Id., 262 Pa.Superior at 257, 396 A.2d at 743.

Commonwealth v. Nance, 290 Pa.Super. 312, 319, 434 A.2d 769, 772 (1981); see also: Commonwealth v. Honeyblue, 276 Pa.Super. 107, 419 A.2d 118 (1980).

In offering a reason for the delay in scheduling the appellant’s probation violation hearing, the Commonwealth argued to the lower court that the policy of the Probation Office and the District Attorney’s Office is to await a certified copy of a conviction prior to requesting a violation hearing. This certified copy was apparently not received by the Commonwealth until June 1, 1980. The Commonwealth then filed a motion for a probation violation hearing on June 4, 1980 and the hearing was scheduled for June 20, 1980. However, by that time, the appellant was “in transit” in the federal penitentiary system and he was not brought to the Bucks County prison until July 8, 1980. A new hearing was scheduled for August 7, 1980, but because the hearing judge was involved in an extended trial, it was rescheduled for September.

Despite a period of over eight months before the appellant received his hearing, we find that the Commonwealth has presented adequate reasons to justify the delay. As the Supreme Court has held in a similar context:

“A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972) (footnote omitted).

quoted in: Commonwealth v. Jones, 250 Pa.Super. at 120-121, 378 A.2d at 483. Although the delay in the present matter was due to factors within the control of the Commonwealth, it was not a malicious attempt to hamper the defense. Moreover, the policy of waiting until a certified copy of a conviction is received before scheduling a probation revocation hearing is actually beneficial to the appellant. Instead of using the preponderance of the evidence standard in determining whether the appellant violated the terms of his probation, the Commonwealth waits for a conviction, thereby using the more stringent standard of beyond a reasonable doubt in proving whether or not the appellant is guilty of a probation violation. This policy, likewise, serves to protect the interests of the Commonwealth. The certification is used as proof of a conviction or plea of guilty and thus there is no need to call witnesses or produce evidence in a protracted hearing. Reliance on a certified copy of a conviction before scheduling a probation revocation hearing, thus, is not merely bureaucratic red tape but is a useful tool in protecting the interests of the parties and in providing courtroom economy in an already over-taxed judicial system.

Counsel had argued that he would stipulate to the appellant’s conviction on federal charges and that the certified copy of the conviction therefore would not be needed. However, appellant’s counsel could always renege on his promise to stipulate to the appellant’s conviction. In that event, even if the appellant refused to testify as to whether or not he had pleaded guilty to the federal charges, or if he committed perjury, the Commonwealth would still be readily able to prove a probation violation.

The appellant claims that he was prejudiced by the delay of eight months in scheduling his hearing since he could not earn “good time” on his federal sentence. This Court has stated that “a probationer awaiting his probation violation hearing while being imprisoned for another offense does not suffer much if there is a delay in holding the revocation hearing, for he is already imprisoned.” Commonwealth v. Diaz, 258 Pa.Super. 346, 350, 392 A.2d 827, 829 (1978). See also: Commonwealth v. Gaus, 300 Pa.Super. 372, 446 A.2d 661 (1982). The appellant had four years to serve on the federal charges and the delay in conducting the probation violation hearing did not extend the length of this sentence. Furthermore, the Commonwealth fully explained the circumstances underlying the delay in the present case. We.fail to see how the appellant was prejudiced by the delay in scheduling the hearing. Consequently, we find that the revocation hearing was scheduled “as speedily as possible” in compliance with rule 1409 and we reject the appellant’s first contention.

Next, the appellant alleges that he failed to receive sufficient written notice of claimed violations prior to the revocation hearing, in violation of due process. A defendant has the right to be notified of the specific charges for which a probation violation hearing is being held. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

On July 7, 1977 a formal petition was filed charging the appellant with three technical violations of probation and a fourth charge arising from federal criminal charges. The three technical violations were disposed of at a hearing held on July 11, 1977 and the court deferred any finding on the fourth charge. Shortly thereafter, the appellant became a fugitive for over two years. Subsequently, on June 4, 1980 a motion for a deferred hearing was filed concerning the charge of probation violation stemming from the prior federal criminal charges. The appellant was advised of this hearing by a letter from the Bucks County District Attorney’s Office, dated June 23, 1980. This letter did not refer to specific charges, only to a “probation violation.”

We note that the Petition of July 7, 1977 gave the appellant adequate notice of the charges lodged against him. In the intervening period of over three years, a number of events transpired and the appellant now claims that it is unreasonable to presume that he knew what violations he would be called upon to defend or that the letter from the District Attorney’s Office gave him sufficient notice. However, we observe that most of the delay between the filing of the formal petition and the revocation hearing regarding the federal charges was due to the appellant’s own actions in attempting to elude law enforcement authorities. Thus, we find that the appellant has suffered no prejudice and we reject his second contention.

Additionally, the appellant avers that the sentencing process failed to comport with the appropriate standards. A trial judge is required to state on the record his reasons for the particular sentence imposed and these articulated reasons should reflect the judge’s consideration of the sentencing code, the circumstances of the offense, and the character of the offender. Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Lyles, 304 Pa.Super. 177, 450 A.2d 159 (1982). Yet the statement of the court at the sentencing proceedings need not specifically cite or include the language of the sentencing code, it must only demonstrate that the court has considered the factors specified in the code. Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982); Commonwealth v. DeLuca, 275 Pa.Super. 176, 418 A.2d 699 (1980).

An extensive revocation hearing was held on September 18, 1980 before Judge Rufe. Following testimony regarding the federal charges, Judge Rufe expressed, “The bigger problem that I have than that is the technical violations. The lack of cooperation, disappearance and all that sort of thing.” Then, at the conclusion of the hearing, the trial judge gave the following sentence:

THE COURT: Criminal Information 1307 of 1976, Commonwealth versus Daniel Kane, the Court finds he has violated the terms and conditions of his probation and the sentence previously imposed is hereby revoked.
The Court orders and directs that the defendant Kane pay the costs of prosecution.
He is hereby sentenced and committed to the State Correction Institution at Graterford for a period not less than one year nor more than five years in the federal penitentiary and is to be clothed and treated in all respects as the law requires.
This sentenced (sic) however, shall be concurrent with the federal sentence he is presently serving. The defendant stands committed until the same is complied with.

While it is evident that the court did not make specific reference to the statutory guidelines, the trial judge clearly indicated on the record his reasons for the sentence handed down. Judge Rufe considered the appellant’s technical probation violations, his two-year hiatus from law enforcement agents, and his lack of cooperation with probation officials. So too, the fact that sentence was ordered to run concurrently with the federal sentence indicates that the court considered the federal convictions, as well as all aspects of the case before sentencing. We find that the lower court complied with the accepted sentencing standards, and therefore the appellant’s argument is without merit.

Finally, the appellant alleges that his sentence of 1 to 5 years imprisonment is illegal. The appellant was convicted of possession of a controlled substance, simple assault and resisting arrest. It is not clear whether the lower court was attempting to sentence the appellant on each individual count and, if so, whether these sentences were to run consecutively or concurrently. Accordingly, we vacate the judgment of sentence and remand to the court below for resentencing in accordance with this opinion. Jurisdiction is relinquished.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

I believe that the Commonwealth’s reason for delaying the probation violation hearing is unacceptable. I should therefore reinstate the sentence to probation as extended at the hearing on July 11, 1977.

When appellant pleaded guilty to the federal charges, on January 16, his counsel notified the Probation Office and requested that it “set up a probation violation hearing.” N.T. 11. This was before appellant had been sentenced. Id. Counsel explained to the Probation Office that at his request, made to the federal judge who was to sentence appellant, appellant was being held in the detention center in Philadelphia, and would be held there for two weeks after being sentenced, so that a probation violation hearing could be set up. N.T. 11-12. In addition, counsel stated that he would stipulate to appellant’s conviction on the federal charges. There was therefore no reason for the Probation Office not to schedule a probation violation hearing at once. To refuse to schedule a hearing until a certified copy of the record of appellant’s federal conviction had been received was entirely arbitrary. It amounted to an insistence upon a given bureaucratic procedure, simply because that was the procedure that had been followed in other cases, and gave no thought to the fact that in the circumstances of this case it was a meaningless procedure. The majority’s approval of such “red tape” effectively reads out of Rule 1409 the requirement that a probation violation hearing be scheduled “as speedily as possible.”

The Commonwealth suggests, however, that appellant suffered no prejudice because of the eight months’ delay in scheduling his probation violation hearing. Brief for Commonwealth at 6-7. The record is to the contrary. Appellant testified that pending his probation violation hearing, he was .regarded by the federal authorities as “in transit.” As a result, he said, he was out of the prison population, instead being kept in solitary confinement (“in the hole”). N.T. 19. He was therefore unable to participate in any of the training programs offered the other federal prisoners, with the result that he couldn't earn “good time” on his federal sentence. N.T. 19-20. • This testimony, which was uncontradicted, establishes prejudice. At the probation violation hearing, the lower court remarked that “[w]e didn’t put him [appellant] in in transit status in the first place,” and that “we have no control over [the federal authorities].” N.T. 18. While of course true, these remarks were beside the point. The lower court—the Probation Office—did have control over when the probation violation hearing would be scheduled. Had it been scheduled “as speedily as possible,” as required by Rule 1409, specifically, had it been scheduled while appellant was in the detention center in Philadelphia, before he was placed in transit, as appellant’s counsel requested, appellant would not have been deprived for eight months of the opportunity to earn good time.

The judgment of sentence should be vacated and the sentence to probation, as extended at the hearing on July 11, 1977, reinstated.

      . As amended, by the Act of November 26, 1978, P.L. 1392, No. 328, Sec. 1, 35 Pa.C.S.A. § 780-113(a)(16).

      . The Act of December 6, 1972, P.L. 1482, No. 334, Sec. 1, 18 Pa.C.S.A. § 2701.

      . Id., 18 Pa.C.S.A. § 5104.

      . For purposes of Rule 1409, the relevant period of delay is calculated from the date of conviction or entry of guilty plea to the date of the revocation hearing. Commonwealth v. Reed, 277 Pa.Super. 94, 419 A.2d 677 (1980); Commonwealth v. Jones, 250 Pa.Super. 116, 378 A.2d 481 (1977).

      . These requirements are equally applicable when a court imposes sentence following the revocation of probation. Commonwealth v. Gaus, 300 Pa.Super. 372, 446 A.2d 661 (1982); Commonwealth v. Plutko, 286 Pa.Super. 400, 428 A.2d 1390 (1981); Commonwealth v. Cappiello, 284 Pa.Super. 476, 426 A.2d 146 (1981).

      . When before the lower court, the assistant district attorney defended the Probation Office’s requirement of a certified copy of appellant’s federal conviction by arguing that "if [appellant's counsel] came to court and changed his mind that day, we’d be thrown out.” N.T. 26-27. In its brief to us the Commonwealth does not repeat this argument, so we might regard it as abandoned, but it is in any case without merit. Even if appellant’s counsel had reneged on his promise to stipulate to appellant’s conviction—and there is no basis for supposing he would have—nothing would have been simpler than to put appellant on the stand and ask whether he had not pleaded guilty to the federal charges. There is thus no basis for the assertion that the Commonwealth would have been "thrown out” of the hearing because it didn’t have a certified copy of appellant’s conviction on the federal charges. Furthermore, if, because of appellant’s or his counsel’s conduct, the Commonwealth were “thrown out,” appellant could not now argue that he 'had been denied a speedy violation hearing; the lack of speed would have been his own doing.


author: WICKERSHAM, Judge:

text:
    461 A.2d 1253
    Robert WILSON, Appellant v. Yolanda BRAUN. Yolanda BRAUN v. Robert WILSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1982.
    Filed May 13, 1983.
    Reargument Denied July 22, 1983.
    Frank S. Poswistilo, Easton, for appellant.

      Thomas L. Walters, Easton, for appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   WICKERSHAM, Judge:

These consolidated appeals arise out of a dispute between Yolanda Braun and Robert Wilson concerning Mr. Wilson’s parental rights in Ryan Wilson, a child born to the couple when they were married. First, Robert Wilson brought a habeas corpus action against Yolanda Braun seeking visitation and partial custody of the child. Shortly after Mr. Wilson brought the habeas corpus action, Ms. Braun filed a petition under the Adoption Act seeking an involuntary termination of Mr. Wilson’s parental rights in the child. During termination proceedings Robert Wilson was allowed supervised visitation with the child.

Testimony was taken and on July 17, 1981, the hearing court issued an opinion and decree nisi terminating Robert Wilson’s parental rights in his son. Mr. Wilson filed exceptions to the decree and asked for a rehearing. After another hearing the hearing court filed a second opinion and decree nisi; the second opinion modified a finding of fact but confirmed the termination of parental rights. Exceptions were taken again; the exceptions were denied by the court en banc and this appeal timely followed.

Robert Wilson and Yolanda Braun were married in 1965. Two children were born to the couple; Robert Wilson, and Ryan Wilson, who was born on October 31, 1974. Husband and wife separated on December 13, 1975, a little over a year after Ryan’s birth. Robert Wilson and Yolanda Braun were divorced in June 1976 and both parties have since remarried.

Because the allegation that Robert Wilson neglected or refused to perform parental duties concerns events which took place after the couple’s separation, the history of the family after 1975 will be recounted in some detail. As the lower court found, in 1975 Mr. Wilson left Christmas presents for both children on the porch of the home where the children lived. The father’s lawyer advised him to stay out of the home to avoid antagonizing his wife.

Robert Wilson next saw Ryan at Easter 1976, while the boy was visiting with his paternal grandparents. The hearing judge describes the visit: “Inevitably, an argument between the parties developed in which the mother allegedly threatened that she would not permit visitation with the grandparents if the father was around.” Slip op. at 3. The hearing judge also noted: “In June of 1976, the mother relinquished custody of the older child, Robby, to the father because of the child’s expressed desire to reside with the father. It was out of fear of losing custody of young Ryan that the mother restricted visitation with the father.” Slip op. at 3. When the father next visited Ryan, in October 1976, the mother agreed to allow visitation, but only in her presence. During this time Ryan was supported by his father.

In June of 1977 Robert Wilson consulted a lawyer to secure more regular visitation with Ryan and reported that the mother threatened to obtain custody of Robby, the older child, if Robert Wilson sought visitation with Ryan. The father decided not to litigate custody of the older child at that time, reasoning that Robby would soon be old enough to have a say in a custody dispute. Robert Wilson bought Ryan Christmas presents and birthday presents throughout the period since divorce.

Robert Wilson paid no child support from July 1977 to May 1978 but from May 1978 to the time of the hearing he paid support and reduced arrearages. The next contact between father and son occurred in June of 1978. Robert Wilson did not see Ryan from June 1978 to November 1980; the hearing judge stated “the mother refused visitation.” Slip op. at 4. There was a period of court ordered visitation but, the hearing judge found that the supervised visitation was “largely unsuccessful due to the resistance and obsti-nance of the mother.” Slip op. at 5.

In this appeal, Robert Wilson raises challenges to the sufficiency of the evidence to support the termination decree, the constitutionality of the use of an affirmative effort standard and the placing of the burden of proof upon him.

In his opinion the hearing judge states that under the Adoption Act “the party seeking to involuntarily terminate the parental rights of a natural parent must establish the statutory requirements by a preponderance of the evidence.” Slip op. at 5. The hearing judge was without benefit of the decision of the Supreme Court in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In Santosky, the Court struck down a New York statute which allowed the state to terminate parental rights if a fair preponderance of the evidence supported a finding that a child was permanently neglected.

The Supreme Court held that use of a preponderance of the evidence standard in proceedings to terminate parental rights violates the due process clause of the fourteenth amendment. The Court noted that standards of proof reflect a social judgment allocating the risks of error in judicial proceedings. Santosky v. Kramer, 455 U.S. at 754, 102 S.Ct. at 1394, 71 L.Ed.2d at 607. Civil proceedings are governed by a preponderance of the evidence standard and the litigants share risks of error equally. Criminal proceedings are governed by the beyond a reasonable doubt standard and the citizen’s interest in liberty requires that the state bear almost the entire risk of error. Id. at 755, 102 S.Ct. at 1395, 71 L.Ed.2d at 607-08. Because termination of parental rights affects a critical liberty interest the concept of fundamental fairness mandates use of an intermediate allocation of the burden of proof; due process is satisfied if the standard of proof is “clear and convincing evidence.” Santosky v. Kramer, supra at 1395, 770, 102 S.Ct. at 1395, 1403, 71 L.Ed.2d at 608, 617.

Moreover, the Court stated:

Standards of proof, like other “procedural due process rules[,] are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exceptions.” Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard.

Id. at 757, 102 S.Ct. at 1396, 71 L.Ed.2d at 609. (citations and footnote omitted).

The section of the Adoption Act applicable here provides:

(a) General rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

23 Pa.C.S. § 2511.

In this case, the hearing judge found that “it cannot be denied that the mother has been extremely reluctant to permit extended visitation,” and that “from the beginning the mother restricted visitation, permitting it only on her terms____ Finally, by the latter part of 1978 she stopped all visitation and discontinued all contact.” Slip op. at 7.

Our review of the record in this case convinces us that even under the now rejected preponderance of the evidence standard, the proof adduced is insufficient to support a decision that Robert Wilson’s lack of contact with Ryan demonstrated a settled purpose of relinquishing parental claim to Ryan or refusal or failure to perform parental duties within the meaning of section 2511(a) of the Adoption Act. Accordingly, we reverse the order terminating parental rights and remand for further proceedings on Robert Wilson’s habeas corpus action wherein he seeks visitation and partial custody of Ryan.

In concluding that Robert Wilson did not make sufficient efforts to keep a place in Ryan’s life the lower court en banc stated: “Robert Wilson had an obvious hold on his younger son which he could have utilized to enforce his visitation rights. Robert Wilson had custody of the older son, Robby; he could have refused or sought to limit Mrs. Braun’s visitation of Robby until she allowed him reasonable visitation of Ryan.” Slip op. at 3. This pronouncement is unaccompanied by citation to any decision of any Pennsylvania appellate court, no doubt for the excellent reason that our law does not sanction using children as hostages in custody disputes. No matter how bitter the dispute between Robert Wilson and Yolanda Braun over the custody of Ryan, young Robert Wilson could not be denied a relationship with his mother. It would have been improper for Robert Wilson to adopt the strategy suggested by the lower court en banc and it was most improper for the lower court to suggest any such method of enforcing visitation rights.

The order terminating parental rights is reversed. The case is remanded for further proceedings concerning the habeas corpus petition filed by Robert Wilson seeking visitation and partial custody.

      . On July 17, 1981, the Honorable Alfred T. Williams, Jr., President Judge of the Court of Common Pleas of Northampton County, issued an opinion and a decree nisi terminating Robert Wilson’s parental rights in his son, Ryan. Judge Williams issued another opinion on January 6, 1982; this opinion confirmed the first decree nisi. Robert Wilson took exceptions to the second opinion and decree. The court en banc denied these exceptions on April 13, 1982; this appeal timely followed.

      . 23 Pa.C.S. § 2101 et seq.

      . Young Robert Wilson lives with his father and is not involved in these proceedings.


author: BROSKY, Judge:

text:
    461 A.2d 1256
    James GIAMBRA and Theresa Giambra, his wife, Appellants, v. AETNA CASUALTY AND SURETY COMPANY and Insurance Placement Facility of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1983.
    Filed May 13, 1983.
    Reargument Denied July 22, 1983.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.

      Joseph A. Lakowski, Pittston, for appellants.
    Paul A, Barrett, Scranton, for Aetna, appellee.
    Patrick J. O’Connor, Philadelphia, for Insurance, appellee.
    Before BROSKY, WIEAND and CIRILLO, JJ.
   BROSKY, Judge:

This action was commenced by appellants who seek compensation under fire insurance policies issued by appellees for damage to the Giambras’ building. It is undisputed that the building, located in Pittston, Pennsylvania, was damaged in the amount of $159,541. At issue before us is appellants’ contention that there was insufficient evidence adduced at trial to put before the jury certain defenses raised by appellees. Appellees had raised the defenses that they were not obligated to compensate appellants for their loss on the grounds that the fire which damaged the building was set by appellants, or was procured by them; and/or that they were not liable because appellants had submitted false and fraudulent insurance claims to the companies. We find that the trial court properly denied the motions for new trial and judgment n.o.v. madb by appellants and therefore affirm.

We note at the outset that an order either granting or refusing to grant a new trial will not be disturbed absent a manifest abuse of discretion or error of law. Rusidoff v. DeBolt Transfer, Inc., 251 Pa.Super. 208, 380 A.2d 451 (1977). Motions for judgment n.o.v. should be entered only in clear cases, and any doubts should be resolved in favor of the verdict winner, considering the evidence, together with all reasonable inferences therefrom. Steward v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970); Miller v. Checker Cab Co., 465 Pa. 82, 348 A.2d 128 (1975).

In assessing appellants’ claim that there was insufficient evidence to put the aforementioned defenses before the jury, we have been guided by principles enunciated by this court in Ruttenberg v. Fire Insurance Co., 122 Pa.Super. 363, 186 A. 194 (1936). In that case, we explained:

The defense that the fire was caused directly or indirectly by the insured was an affirmative one, and the burden was therefore on the defendants to prove that the fire was set, or was caused to be set, by the insured. It was not necessary that the proof be beyond a reasonable doubt as is necessary when such a charge is made against a defendant in a criminal case. Proof of insured’s fraudulent connection with the cause of the fire by a preponderance of the evidence was sufficient____ There was no eyewitness in the instant case who saw the insured set fire to his building. The verdict therefore must be supported by circumstances in evidence from which the jury may infer legitimately that the insured burned, or caused to be burned, his store, building and dwelling. Hence the vital question on this appeal is whether the evidence, viewed in a light most favorable to the defendants, is sufficient to sustain the conclusion of the jury that the insured set the fire, or that he caused it to be set. If the evidence fairly and reasonably justifies the verdict, it must be sustained. (Citations omitted.)

Id., 122 Pa.Superior at 365, 186 A. at 195. See also Greenberg v. Aetna Insurance Co., 427 Pa. 494, 235 A.2d 582 (1967), as to the preponderance of the evidence standard. Although the burden of proving arson in a case like the present one is not so heavy as in criminal cases, (see Ruttenberg, supra), we have been further guided by a discussion of arson in criminal cases.

In Commonwealth v. DiNicola, 308 Pa.Super. 535, 454 A.2d 1027 (1982), we explained, citing Commonwealth v. Nasuti, 385 Pa. 436, 123 A.2d 435 (1956), that

It is not necessary, however, to speculate as to a possible or even probable motive, since it is elementary that, while motive may be an important factor, it is not incumbent on the Commonwealth, in order to make out a case, to prove the existence of any motive, much less of an adequate one____ All that is required is that the evidence being circumstantial, the circumstances proved should be such as reasonably and naturally to justify an inference of guilt of the accused____ (Citations omitted.)

308 Pa.Superior at 544, 454 A.2d at 1032.

We similarly reject the notion that motive must be proved as a separate element, in civil cases although it may, of course, form part of the circumstances from which it is inferred that the subject party has caused the fire. (See discussion with the fire was inferred in Ruttenberg, supra.)

In Ruttenberg, supra, we explained,

In a question of circumstantial evidence, the proof derived from the circumstances is a question of natural presumption and is to be found by the jury. The strength of this proof depends on the probability resulting from the facts____ It is the right of the party to have this submitted to the jury, unless it be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.

Id., 122 Pa.Superior at 369, 186 A. at 196-197.

We find no error in the decision of the trial court to submit appellee’s defenses to the jury. Both defenses revolved around the claim of the insurance companies that appellants were responsible for the fire.

The office building damaged was purchased as an investment by appellants on January 24, 1979 for $36,000. The building and land on which it was situated were mortgaged for $55,000, the difference between that figure and the purchase price representing funds that were to be used in repair of the building. Instead, however, appellants used the mortgage proceeds as income. Mr. Giambra was in arrears in his mortgages and was unemployed.

The only income that Mr. Giambra had at the time of the fire was from two apartments that he owned at an address other than the one in question.

There had been a tenant in the building that was burned, but although Mr. Giambra maintained that the tenant still owed rent, he had moved out prior to the time of the fire.

On February 26, 1979, appellants had obtained a fire insurance policy from Insurance Placement Facility for the subject premises in the amount of $60,000. On July 24, 1979, an additional policy was purchased from Aetna Insurance Company in the amount of $194,000. Appellant was told by an insurance agent for Aetna that sight unseen, based on figures he gave her, that the replacement value of the property was $216,000. It was insured for $254,000.

The fire occurred on September 16, 1979. Appellants concede that the fire was incendiary in origin, but they deny any involvement.

There was evidence presented by the fire marshall which supports the finding that the fire was purposely started. Many plastic containers, equipped with wicks for ignition were found throughout the building and holes had been cut in the floors through which the fire marshall said fire had dropped. After recounting his findings in detail, the fire marshall concluded that “this was a prepared fire which took a long, long time to prepare.”

When the firemen arrived at the burning building they found all the windows and doors “secured.” Although Mr. Giambra testified that one of the several different keys to the premises was missing, he did say that he had the others. The fire marshall testified that Mr. Giambra told him that he, Mr. Giambra, possessed the only keys to the door to the second and third floors. It was on these floors that the incendiary materials were found. The door to those floors was found locked by the firefighters. The fire marshall also opined that the fire would have had to have been started by someone with a key to the building.

Mr. Giambra admitted to having removed stereo equipment from the building approximately one week before the fire.

A jury could infer from the above-recited evidence that appellants were responsible for the fire. Appellants’ motions were properly denied.

Order affirmed.

WIEAND, J., concurs in result.

      . The trial court opinion indicates that it viewed proof of motive as an element of the affirmative defense raised by appellees.

      . We have examined parts B and C of appellant’s brief and find them also to be without merit. As to appellants’ claim that appellees did not allege fraud with the required particularity, we comment only that our review of the appellee’s pleadings, particularly new matter filed by them, indicates that the defense was adequately raised.
      The argument found in part C was addressed in substance, in the body of this opinion.


author: WATKINS, Judge:

text:
    461 A.2d 1259
    COMMONWEALTH of Pennsylvania, Appellant v. William L. NETTING, Jr.
    Superior Court of Pennsylvania.
    Argued April 21, 1981.
    Filed May 13, 1983.
    Reargument Denied July 25, 1983.

      Ronald T. Williamson, Assistant District Attorney, Nor-ristown, for Commonwealth, appellant.
    Robert A. McAteer, Philadelphia, submitted a brief on behalf of appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Montgomery County, Criminal Division, and involves a Commonwealth appeal from an order of the court below which granted defendant’s motion for arrest of judgment after the defendant-appellee had been convicted of violating the Controlled Substance, Drug, Device and Cosmetic Act.

The defendant had filed a motion to suppress certain evidence obtained when police entered defendant’s apartment in response to a complaint about a disturbance. A guest of defendant’s had provided the police with access to the apartment by answering the door to defendant’s apartment and admitting them to the apartment where the officers observed in plain view two spoons lying on the floor which were scorched with a white powdery substance. The police dispatcher who had summoned the officers to the area had indicated that the disturbance was at the defendant’s apartment, that a woman had been heard screaming, and that someone was smashing up an automobile outside the apartment. Thus, when the officers were admitted into the apartment by defendant’s guest they talked to the defendant and asked whether they could look for other occupants in the apartment. The defendant granted permission to them to search for other occupants. In doing so they discovered various drugs and drug paraphernalia and placed the defendant under arrest.

The court below refused to suppress the evidence obtained by the police in this manner. However, after defendant was convicted of the drug offenses after a nonjury trial the court granted defendant’s motion for arrest of the judgment. The sole reason for the granting of defendant’s motion by the court below was the court’s finding that it had erred when it had denied defendant’s suppression motion. The Commonwealth took the instant appeal.

The sole issue presented in this appeal is whether the evidence obtained by the police was done so unlawfully thereby precluding its admission against the defendant. The court below held that the evidence was illegally obtained by the police because the guest who answered their knocks on the door and subsequently admitted them into defendant’s apartment did not have the right to do so and because the officers had no right to rely upon his consent.

A third party who has no interest nor control in a premises may not give the police valid consent to conduct a warrantless search of the premises. U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978). However, in the instant case the police were not attempting to secure permission for a search of the apartment when they knocked at the door. Rather, they were responding to a complaint called in by a downstairs neighbor of defendants about a “disturbance” in defendant’s apartment. Upon arriving at the scene they observed a vehicle with a “smashed out” windshield in front of the apartment building, thereby confirming at least a part of the reason for their call. They also observed the lights on in defendant’s apartment at 3:30 A.M. Although they heard no screams at that time the abovementioned facts gave the officers sufficient reason to believe that someone in defendant’s apartment might very well be in danger of violence. This information justified their attempts to investigate the situation to determine if anyone was in danger. Thus, when they approached defendant’s premises they were not attempting to conduct a search of the premises but were merely attempting to determine if everyone therein was all right. This does not mean that police may enter any building under the pretense of responding to a person who may be in danger. However, there is nothing to indicate that such was the case here. Thus, we see a distinction between the situation where the police receive permission from a third party to conduct a warrantless search of another person’s premises and the situation where the police are provided limited access to a person’s premises, by a guest of that person, into an area of the premises where a visitor would normally be received, where the owner is present at the time of the entry, and where the purpose of the police entry is to determine whether someone on the premises is in danger. See LeFave, Search and Seizure, A Treatise on the Fourth Amendment, Vol. II, Sec. 8.5, p. 759.

The distinction is even more apparent in our case where the owner, not only is present at the time the guest admits the police into the apartment and makes no objection thereto, but then ratifies the actions of the guest by consenting to the search of the entire apartment. See, U.S. v. Phifer, 400 F.Supp. 719 (Ed. Pa.1975).

The Fourth Amendment to the United States Constitution is designed to protect people against unreasonable searches and seizures and generally a search warrant must be obtained before a search of a person’s residence may lawfully take place. Commonwealth v. Flewellan, 475 Pa. 442, 380 A.2d 1217 (1977). However, a person may waive his Fourth Amendment rights by giving the police consent to search his premises. In the instant case the police were lawfully present in defendant’s premises, their purpose being to investigate an alleged disturbance there which they had every right to believe might be occurring. The evidence they discovered was obtained only after the defendant, himself, had consented to the search of the premises. Under these circumstances we hold that the evidence which was obtained was properly admitted at defendant’s trial and the court below erred when it granted the defendant’s - motion in arrest of judgment.

Order reversed and case remanded for sentencing.

      . The guest had informed the officers that he was not the owner of the apartment. After entering the apartment the police were informed by defendant that he was the owner.

      . Upon arriving at the scene the officers observed an automobile parked in the street in front of the building where defendant’s apartment was located. The windshield of the car had been smashed. The officers heard no disturbance at that time but did observe that the lights were on in defendant’s apartment and heard the sound of voices emanating from the apartment. It was between 3:00 A.M. and 3:30 A.M. at the time.

      . Subsequently they obtained a search warrant for the premises and conducted a detailed search thereof confiscating various controlled substances pursuant thereto. Since probable cause for the search warrant was based upon the officer’s observations while in the apartment the search warrant’s validity depends upon whether the officers had the right to be in the position they were when they made their observations. The place of entry when the guest admitted them was a common entry to the apartments and not the entry to the defendant’s apartment. The guest led the police up the stairs to the second floor apartment.


text:
    461 A.2d 1261
    COMMONWEALTH of Pennsylvania v. Charles J. LAFFERTY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1981.
    Filed May 13, 1983.
    Reargument Denied July 25, 1983.
    Petition for Allowance of Appeal Denied Nov. 28, 1983.

      Michael Mustokoff, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on an appeal from an order of the Court of Common Pleas, Criminal Division, of Philadelphia County which denied appellant’s Motion to Dismiss on Grounds of Double Jeopardy.

On March 6, 1978, the appellant was convicted by a jury of perjuring himself during a trial on an eminent domain matter. The lower court granted appellant’s motion for a new trial based on prosecutorial misconduct. A motion in arrest of judgment was denied, and the denial was affirmed by this Court on March 21, 1980. See Commonwealth v. Lafferty, 276 Pa.Superior Ct. 400, 419 A.2d 518 (1980). After an Allocatur to the Supreme Court was refused, the case was tentatively scheduled for re-trial on March 9, 1981. The appellant filed his Motion to Dismiss on Grounds of Double Jeopardy on March 2, 1981. (This is the date of filing according to the docket entries in the record. The appellant’s brief and the lower court opinion state this date to be February 27, 1981.) That motion was denied after an evidentiary hearing, and appellant lodged this appeal on May 20, 1981. A stay of the lower court’s order to proceed with a new trial was ordered by the Superior Court and affirmed by the Supreme Court.

The Fifth Amendment to the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution both protect defendants from being placed twice in jeopardy. This does not mean, however, that a defendant shall never be tried twice for the same offense. Generally, where the defendant himself urges a new trial on post-trial motions, the double jeopardy clause does not bar a subsequent prosecution, even when the motion is prompted by prosecutorial misconduct. Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978). The United States Supreme Court has held, however, the double jeopardy will bar retrial if the prosecutorial misconduct amounts to overreaching. U.S. v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). There are generally two types of prosecutorial misconduct which will bar subsequent prosecutions. “First, there is the prosecutorial misconduct which is designed to provoke a mistrial in order to secure a second, perhaps more favorable, opportunity to convict the defendant. Second, there is the prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant.” Commonwealth v. Starks, 490 Pa. 336, 341, 416 A.2d 498, 500 (1980).

Our task is to determine whether the prosecutorial misconduct which resulted in the granting of á new trial was deliberately engaged in for the purpose of provoking a mistrial or prejudicing appellant. Several factors are relevant in making this determination. The factors are: (1) the weight of the prosecutor’s case; (2) whether the prosecutor violated a direct order of the court; (3) whether there was a pattern of repeated objectionable remarks; and (4) whether the defense objected to the complained of conduct. U.S. v. Lawson, 337 F.2d 800, 807 (3rd Cir.1964) cert. denied, 380 U.S. 919, 85 S.Ct. 913, 13 L.Ed.2d 804; Commonwealth v. Potter, 478 Pa. 251, 386 A.2d 918 (1978); Commonwealth v. Slaughter, 268 Pa.Superior Ct. 553, 408 A.2d 1141 (1979).

During the voir dire, the prosecutor made reference to the amount of the civil verdict, allegedly for the purpose of weeding out those verniremen who would be unable to set aside prejudice in making the determination of appellant’s guilt or innocence. The defense did not object to these questions, a fact which in itself is a weighty determinant on the issue of whether the questions were improper or prejudicial. See U.S. v. Lawson, supra. Additionally, the questions served the defendant’s purpose as well as the Commonwealth’s purpose. Therefore, it can hardly be said that they were asked for the purpose of provoking a mistrial or prejudicing appellant.

During the course of the trial, the prosecutor exhorted the jury to consider their own interest as taxpayers, pointing out that it would be tax dollars which appellant would have received as compensation for his business. This was clearly prejudicial since such statements have the effect of diverting the jury from its duty to decide impartially the facts of the case before it. Commonwealth v. Cherry, 474 Pa. 295, 302, 378 A.2d 800, 803 (1977). Therefore, a new trial was properly granted on the basis of this misconduct.

Appellant now urges this Court to dismiss the perjury charges due to the prosecutorial misconduct. We cannot find a sufficient basis to grant this motion. While serious prosecutorial misconduct has generally been held to warrant a new trial, Commonwealth v. Slaughter, supra, only one Pennsylvania case has been found in which such misconduct was the basis for a dismissal on the grounds of double jeopardy. That case is distinguishable from this one in that there was undisputed evidence, including an admission by the prosecutor, that the statements were made for the specific purpose of causing a mistrial. Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967). There was no such admission here. Although the effect of the improper statements was prejudicial, it cannot automatically be concluded that they were made with that intent, particularly in light of the strength of the prosecution’s case at the outset. Thus, we hold that the defendant is not entitled to have the case against him dismissed and that the principle of double jeopardy does not bar his retrial because the prosecutor did not attempt to abort the first trial in order to obtain a more favorable opportunity to convict the defendant nor is the prosecution “harassing” the defendant by its decision to retry him.

Order affirmed and the case remanded to the court below for a new trial on the merits. This Court relinquishes jurisdiction.