text:
    434 A.2d 137
    COMMONWEALTH of Pennsylvania v. Harry M. GREEN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1980.
    Filed Aug. 14, 1981.

      Gary V. Skiba, Erie, for appellant.
    Paul J. Susko, Assistant District Attorney, Erie, submitted a brief on behalf of Commonwealth, appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   PER CURIAM:

Following a jury trial, appellant Harry Green was found guilty of corrupting morals of a minor and indecent assault in the Court of Common Pleas, Erie County. Post trial motions were argued and denied and an aggregate sentence of 8% to 7 years imprisonment was imposed. On this appeal, appellant contends, inter alia, that the Commonwealth improperly admitted evidence of his past criminal conduct. We are constrained to agree and will therefore reverse.

The factual scenario leading to conviction may be briefly summarized. The complainant, 10 year-old Lisa -, lived with her mother Lillian and two younger brothers in Albion, Pennsylvania, next door to appellant and his wife Cindy. On the afternoon of May 15, 1979 Lillian escorted her daughter and two sons over to appellant’s home to spend the night, as Lillian was required to work in the evenings. At about 4:00 p. m. Cindy Green, as was her frequent practice, drove Lillian to work, leaving Lisa and her two brothers at home with appellant. On this day, appellant was still recovering from a high fever and swollen finger. After the two women drove away, the complainant was sitting in the living room with her two brothers watching TV when appellant appeared in his pajamas and told the two boys to go outside. He then requested the victim to accompany him into the bedroom, whereupon he proceeded to undress both himself and the little girl. After lying on top of her on the bed for a few minutes, and fondling her, appellant stood up and instructed the victim to tell no one about the incident. The next day, Lisa told her mother and appellant was thereafter arrested. Trial consumed one day. Appellant flatly denied having any sexual contact with the girl at any time.

At trial, appellant called his wife Cindy, age 21, to testify on his behalf. She stated that Lisa had once told her that her (Lisa’s) grandfather had once fondled her. Cindy thereafter informed Lisa’s mother about this. On cross-examination, the prosecutor questioned Cindy as to why she told Lisa’s mother about the grandfather:

Q. [Assistant District Attorney]: Isn’t it a fact that you told her mother that because you knew it would only be a matter of time before Harry tried something?
[Defense Counsel]: I object, your Honor.
THE COURT: It’s proper cross-examination, go ahead. Q. You knew that Harry was attracted to young girls, didn’t you?
A. No.
Q. Well, he had gotten you pregnant when you were twelve years old, hadn’t he?
A. I was fifteen when I got pregnant.
Q. Fifteen. Did you have sex with him when you were twelve?
A. Yes.
[Defense Counsel]: Your Honor, I object to this entire line of questioning. It’s totally irrelevant.
THE COURT: She has already said that she had. That’s all right. Go ahead. N.T. 78-9.

Appellant contends that the foregoing constituted an impermissible reference to past criminal conduct In Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973), the Court summarized the law governing the admissibility of such evidence:

It is black letter law that evidence of one crime is inadmissible against a defendant being tried for another crime because the fact of the commission of one offense is not proof of the commission of another. See, Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971). However, there sometimes exist special circumstances which operate as exceptions to the general rule and bring the case within equally well established principle the evidence of other crimes is admissible when it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial—in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. See, Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value. 453 Pa. at 197, 198, 307 A.2d at 269-70.

See also, Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980) ; Commonwealth v. Booth, 291 Pa.Super. 278, 435 A.2d 1220 (1981); Commonwealth v. Kjersgaard, 276 Pa.Super. 368, 419 A.2d 502 (1980); Commonwealth v. Wright, 259 Pa.Super. 293, 393 A.2d 833 (1978). Further, sexual and nonsexual crimes must now be treated alike in deciding whether evidence of prior criminal conduct should be admitted. Commonwealth v. Shively, 492 Pa. 411, 424 A.2d 1257 (1981) .

We are unable to conclude that the challenged evidence instantly is embraced by any of these enumerated exceptions. There is no showing, for example, that the evidence of appellant’s past relations with a minor tended to prove motive or intent for the present crimes. Such evidence is normally used to establish that the “crime currently being considered grew out of or was .. . caused by the prior set of facts,” Commonwealth v. Schwartz, 445 Pa. 515, 522, 285 A.2d 154, 158 (1971). See, e. g., Commonwealth v. Brown, 482 Pa. 130, 393 A.2d 414 (1978) (motive for prior killing identical with that for instant killing); Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972) (prior threats of defendant admissible to show intent for instant homicide); Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970); Commonwealth v. Showalter, 231 Pa.Super. 278, 332 A.2d 456 (1974) (subsequent burglary used to establish prior intent for assault), or to rebut a defense that the defendant acted impulsively. Commonwealth v. Terry, 462 Pa. 595, 342 A.2d 92 (1975) (prior torching of building by defendant admissible to prior instant arson was deliberate and premeditated). In no way can appellant’s prior experience with Cindy eight years before trial be relevant to establish either intent or motive for the assault upon Lisa. Indeed, intent was never an issue in the proceedings below. “Appellant did not seek to defend by acknowledging the incident and arguing that it was accidental or innocent.” Commonwealth v. Bond, 261 Pa.Super. 311, 318, 396 A.2d 414, 417 (1978). Further, appellant’s prior acts with Cindy did not in any way involve young Lisa and could in no sense provide a motive for the instant crimes eight years later. “Testimony of this character serves only to point [appellant] as a disreputable character [and] not to establish an element of the prosecution’s theory.” Commonwealth v. Roman, 465 Pa. 515, 527, 351 A.2d 214, 220 (1976). See also Commonwealth v. Brown, 280 Pa.Super. 303, 421 A.2d 734 (1980).

For similar reasons, the prior acts by appellant were not admissible to show “absence of mistake”. Peterson, supra. Again, appellant did not contend that his assault upon Lisa was accidental—he denied it outright. Cf. Brown, supra, 280 Pa.Super. 303, 421 A.2d 734. Moreover, the challenged evidence is so remote that its admission did not in any way serve to “increase the likelihood of guilt or absence of mistake.” Commonwealth v. Lasch, 464 Pa. 573, 591, 347 A.2d 690, 698 (1975) (Opinion by Eagan, J.).

Nor can we find the appellant’s alleged relations with Cindy were part of the common plan, scheme, or design with the instant offense. In order to fit within this exception, “the Commonwealth must show more than that the crimes are of the same class as the one for which the defendant is being tried. Rather, there must be such a high correlation in the details of the crimes that proof that the defendant committed one makes it unlikely that anyone else but the defendant committed the others.” Commonwealth v. Bastone, 262 Pa.Super. 590, 595, 396 A.2d 1327, 1329 (1978); Commonwealth v. Booth, supra. Necessarily, the court must closely examine the details of the crimes which are alleged to comprise a plan or design in order to determine if the required high correlation is in fact present. Compare, Commonwealth v. Patterson, 484 Pa. 374, 399 A.2d 123 (1979) and Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975) (no common plan established) with Commonwealth v. Kjersgaard, supra, and Commonwealth v. Jones, 248 Pa.Super. 214, 375 A.2d 63 (1977) (common plan established). In the instant case, the two crimes have nothing in common, save for a sexual assault upon a minor female. There are none of the similarities in prior cases which have led us to find a common plan, such as time, place, manner of carrying out the crime, words or threats used. Most fatal is the length of time separating the two incidents. Our courts have never found a common scheme to be established where the two crimes have occurred eight years apart. “The inference that a common mental plan continues to exist as long as three years before or after the offense charged is too weak and speculative to offset the inevitable prejudice caused to appellant by the introduction of previous acts of sodomy.” Commonwealth v. Bradley, 243 Pa.Super. 208, 216, 364 A.2d 944, 947-8 (1976). The observation of Judge Woodside, speaking for this Court in Commonwealth v. Boulden, 179 Pa.Super. 328, 116 A.2d 867 (1955), are particularly appropriate. There, the defendant was charged with corrupting the morals of two minor females in his garage. The Commonwealth introduced evidence that, one year previous to the alleged offense, the defendant had attempted similar crimes upon another young girl in the garage. This Court rejected the contention that the prior incident could be considered part of a common plan or design. “A single act with a different child over a year before could not be a ‘sequence of acts’ ”. 197 Pa.Super. at 339, 116 A.2d at 876. Judge Woodside’s comments cautioning against the liberal admission of prior sex offenses was cited with approval in Commonwealth v. Shively, 492 Pa. 411, 424 A.2d 1257 (1981), (overruling Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348 (1949)).

Finally, for many of the reasons already discussed, the prior offense at issue was not admissible to establish identity of the perpetrator. Identity was not, as we have noted, an issue at trial. Moreover, to fall within this exception “much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature.” Shively, supra, quoting McCormick, Evidence, § 190 (1972, 2d. ed.). See, e. g., Commonwealth v. Evans, 488 Pa. 38, 410 A.2d 1213 (1979); Commonwealth v. Jones, 242 Pa.Super. 303, 363 A.2d 1281 (1976). No such “distinctiveness” or significant similarities between the two crimes at issue are apparent on this record.

Apparently conceding that none of the recognized exceptions apply, the Commonwealth instantly argues that the prior acts of appellant were admissible to impeach the credibility of his wife. The Commonwealth’s contention, as we understand it, is as follows: Appellant’s wife Cindy testified that Lisa had told her that her (Lisa’s) grandfather had once had relations with her. Lisa, however, denied that she ever told Cindy any such thing. Thus, if Cindy fabricated the report about Lisa’s grandfather, then a possible reason for telling Lisa’s mother about such an incident was to warn the mother, in some way, about appellant’s propensities toward young women. Thus, the Commonwealth argues, it was entitled to produce evidence that Cindy had reason to believe appellant may assault Lisa.

This line of reasoning simply has no substance. The fact that Lisa’s grandfather may have once assaulted her does not in any way open the door for the Commonwealth to aver that appellant had once assaulted another woman. There is not logical connection between the two incidents. Further, if Cindy Green was indeed fabricating the story about the grandfather, we do not see how the Commonwealth could impeach her by introducing evidence of appellant’s relations with her as a child. Such an incident had no effect on her ability to tell the truth nor did it have any bearing on her possible motive for concocting a story about the grandfather. To suggest that Cindy told the mother about the grandfather in an effort to forewarn her of appellant’s sexual appetites is to make a giant leap in logic and evidentiary reasoning. Although the scope of cross-examination is normally within the trial court’s discretion, matters which are collateral, confusing, or misleading to the jury should not be admitted. Commonwealth v. Brinton, 275 Pa.Super. 304, 418 A.2d 734 (1980). Here, when we balance the very tenuous link between appellant’s and the grandfather’s assaults against the highly prejudicial nature of the challenged evidence, it is clear that the court should not have permitted the prosecution to delve into appellant’s past assault upon Cindy.

We think the only possible effect such testimony had on the jury was to establish that appellant is generally lustful or sexually depraved. Indeed, the record reveals that the Commonwealth was attempting to show appellant’s propensities toward young girls in general. The prosecutor asked appellant’s wife, “You knew that Harry was attracted to young girls, didn’t you?” N.T. 78. This is precisely the type of evidence which is deemed inadmissible and prejudicial by our cases. “[EJvidence that [the] accused committed other crimes, even if they were of like nature to that charged, is not admissible to show his depravity or criminal propensities or the resultant liklihood of his committing the offense charged.” Commonwealth v. Boulden, supra, 179 Pa.Super. at 340, 116 A.2d at 872. The Supreme Court has noted:

Evidence of prior criminal activity (particularly of the type of conduct suggested by this statement) is probably only equalled by a confession in its prejudicial impact upon a jury. Thus, fairness dictates that courts should be ever vigilant to prevent the introduction of this type of evidence under the guise that it is being offered to serve some purpose other than to demonstrate the defendant’s propensity to commit the charged crime.

Commonwealth v. Spruill, 480 Pa. 601, 606, 391 A.2d 1048, 1050-1 (1978); Commonwealth v. Wetzel, 276 Pa.Super. 445, 419 A.2d 541 (1980); Commonwealth v. Jensch, 274 Pa.Super. 266, 418 A.2d 399 (1980). While the Commonwealth may show a propensity for illicit sexual relations with the particular victim concerned in the crime on trial, “other like sexual crimes with other persons do not qualify for this purpose.” Commonwealth v. Buser, 277 Pa.Super. 451, 455, 419 A.2d 1233, 1235 (1980). Finally, in view of appellant’s strenuous denials at trial that the assault on Lisa ever occurred, we cannot find the admission of the prejudicial evidence to be harmless. Commonwealth v. Brown, 280 Pa. 303, 421 A.2d 734 (1980); Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Judgment of Sentence reversed and new trial granted.

      . Crimes Code, 18 Pa. C.S.A. § 3125 and 3126 respectively.

      . Sexual contact with a minor female as described would have constituted at least indecent assault, or corruption of minors, or even statutory rape, 18 Pa. C.S.A. § 3122.


source: Caselaw Access Project

author: CERCONE, President Judge: WATKINS, Judge,

license: Public Domain

text:
    434 A.2d 142
    COMMONWEALTH of Pennsylvania, v. James EMMI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 13, 1979.
    Filed Aug. 21, 1981.

      Robert F. Pappano, Assistant Public Defender, Chester, for appellant.
    Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WATKINS and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellant, James Emmi, takes this appeal from the judgment of sentence rendered by the Court of Common Pleas of Delaware County for the crimes of unauthorized use of an automobile, theft by receiving stolen property and criminal conspiracy. He raises two questions in this appeal: (1) whether the lower court erred in that its charge to the jury constituted a violation of the appellant’s constitutional right to a fair and impartial trial; and (2) whether the evidence was sufficient to sustain his conviction for the offense of criminal conspiracy.

The operative facts of the instant case are as follows: In the early morning hours on August 30,1977, appellant Emmi was observed by a police officer when he disregarded a red light. The officer who witnessed this blatant violation of the Motor Vehicle Code stopped the blue 1966 Pontiac GTO which the appellant was driving. Unknown to the officer, this vehicle had been reported as stolen only five hours earlier by its rightful owner. Upon being asked for his owner’s card, the appellant told the inquiring officer that his name was Emmi and that he could produce the proper identification if he were allowed to enter his nearby residence. Having been mistakenly informed via police radio that the car involved was not a stolen one, the officer allowed Mr. Emmi and his three passengers to enter the house. The officer stayed outside of the residence and wrote out appellant’s traffic violation citation. At this time, he received another broadcast via police radio that the prior report had been mistaken and that the vehicle in question was, in fact, stolen. He immediately went up to the house which the four people had entered and he proceeded to knock on the door. Upon receiving no response, the officer observed that the lights which previously had been on in the house were now being extinguished. He then impounded the vehicle and initiated procedures to obtain a warrant to arrest appellant Emmi. Pursuant to the warrant which was later issued, Mr. Emmi was taken into custody, but the identities of his three passengers remained unknown.

Appellant was then charged with theft by unlawful taking, unauthorized use of an automobile, theft by receiving stolen property, criminal conspiracy, and disorderly conduct. After appellant was held for court on all charges, his case proceeded to trial before a judge and jury on January 16, 1978. Just prior to closing argument, however, the Commonwealth withdrew the charge of disorderly conduct. The appellant was then found guilty of all the remaining charges except that of theft by unlawful taking on which the jury found him not guilty. After his post-verdict motions were denied, the appellant was sentenced to a term of two to four years incarceration for theft by receiving stolen property and was also ordered to pay costs, a $200 fine, and $275 in restitution to the victim. In addition, he received a suspended sentence on unauthorized use of an automobile as well as criminal conspiracy. This appeal from the judgment of sentence was then pursued.

Appellant’s initial contention is that the trial court’s summary of the evidence contained in the charge to the jury was biased and prejudicial to him thereby depriving him of his right to a fair and impartial trial by jury. Pa.Const. art. I, § 9. In support of his position, appellant, in his brief, directs our attention to the following passages. One is from Commonwealth v. Archambault, 448 Pa. 90, 93, 290 A.2d 72, 73 (1972) (footnote omitted):

When a Judge expresses to the Jury his opinion that the accused is guilty, he invades the province of the jury and thereby violates the accused’s fundamental right to trial by jury, a right that has been guaranteed by the Constitution of this Commonwealth since 1776.

The second passage originally appeared in Commonwealth v. Myma, 278 Pa. 505, 508, 123 A. 486, 487 (1924) (quoted in Commonwealth v. Archambault, supra, 448 Pa. at 95, 290 A.2d at 75):

The Judge occupies an exalted and dignified position; he is the one person to whom the jury with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. An expression indicative of favor or condemnation is quickly reflected in the jury box..... To depart from the clear line of duty through questions, expressions or conduct contravenes the orderly administration of justice. It has the tendency to take from one of the parties the right to a fair and impartial trial, as guaranteed under our system of jurisprudence.

In addition, our Supreme Court in Commonwealth v. Butler, 448 Pa. 128, 134-35, 291 A.2d 89,92 (1972) (citations omitted) stated further:

Just as a trial judge is not permitted to indicate to the jury his views on the verdict that they should reach in a criminal case, ... similarly, he is not permitted to indicate to a jury his views on whether particulár witnesses are telling the truth.

While we emphatically agree with the law expressed in the above-quoted passages, we are far from convinced that these concepts are applicable to the present case. After reviewing the record, we have come to the conclusion that the trial court’s summary of the evidence was both fair and accurate.

Despite appellant’s contention that the trial judge improperly summarized the facts of this case in a slanted and biased fashion, thereby allegedly causing him prejudice, we fail to comprehend the manner in which appellant’s right to a fair trial was purportedly besmirched. The ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury (approved Draft, 1963) is quite illuminating in this regard:

4.7 Summary of and comment on evidence.
(a) The court, at the time it instructs the jury, may summarize and comment on the evidence, provided the jury is clearly and unequivocally instructed that it is the exclusive judge of the facts, that it is to determine the weight of the evidence and the credibility of witnesses, and that it is not bound by the comments of the court.
(b) The summary and comment permitted in subsection (a) is governed by the following principles:
(i) The court may analyze the evidence, draw the attention of the jury to important portions of the evidence, and fairly and accurately summarize the contentions of both the prosecution and the defense.
(ii) The court may not suggest a verdict of guilty or not guilty, nor may the court directly express an opinion on the guilt or innocence of the defendant.
(iii) The court may not present any item of evidence as a proven or undisputed fact unless the matter has been affirmatively conceded or is the subject of judicial notice.
(iv) The court may state the law and comment on matters in evidence bearing on the credibility of any witness, but may not directly express an opinion that certain testimony is worthy or unworthy of belief.

See also Commonwealth v. Whiting, 278 Pa.Super. 519, 420 A.2d 662 (1980) (Spaeth, J., dissenting).

In the instant case, the trial judge complied fully with these minimum standards:

As I said, the facts in the case are for you. It is my function to give you the law. It is your function and your function alone to find the facts and apply the law, and arrive at a conclusion which we call the verdict. If at any time I have said anything about the facts, or counsel for either side have said anything about the facts, that does not coincide with your recollection, you will be bound solely by your own recollection.
You are the exclusive judges of all of the facts, not what I have said about them or what either counsel have said about them. You are the judge of the facts. We all try to be accurate when referring to facts, but our recollection may not be in accord with yours, and that is the reason under the law you are the supreme judges of the facts. (N.T. 48-49).

With regard to the issue of credibility, he stated further:

Now members of the jury, I am going to talk to you about the credibility of witnesses that were called. The credibility of witnesses is entirely for you. Every witness that was called in this case, their credibility is for you. In other words, we instruct you in considering the evidence to separate the false from the true that you are made by law the exclusive judges, not only of the evidence, but also the weight of the evidence and the credibility of every witness that was called. (N.T. 49-50).

Thus, viewing the charge in its entirety as we must do, we conclude that it contained a fair summary of the evidence and an adequate instruction on the law. Commonwealth v. Kelly, 245 Pa.Super. 351, 363, 369 A.2d 438, 444 (1976). See also Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980); Commonwealth v. Whiting, 278 Pa.Super. 519, 420 A.2d 662 (1980).

Appellant Emmi also contends that the evidence was not sufficient as a matter of law to prove all of the elements of criminal conspiracy beyond a reasonable doubt. We agree.

It is by now quite well-settled that in order to establish criminal conspiracy, the Commonwealth must prove the existence of a shared criminal intent because the essence of the offense of a conspiracy is an agreement between two or more persons to commit an unlawful act. See Commonwealth v. Barber, 275 Pa.Super. 144, 418 A.2d 653 (1980). See also Commonwealth v. Young, 280 Pa.Super. 393, 421 A.2d 779 (1980); Commonwealth v. Lewis, 276 Pa.Super. 451, 419 A.2d 544 (1980); Commonwealth v. Tingle, 275 Pa.Super. 489, 419 A.2d 6 (1980); Commonwealth v. Kinsey, 249 Pa.Super. 1, 375 A.2d 727 (1977). See generally Crimes Code, 18 Pa.C.S. § 903(a) (1973). As a corollary of that concept, it has been stated that a conviction for the crime of conspiracy requires proof of more than a single participant. Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980); Commonwealth v. Anderson, 265 Pa.Super. 494, 402 A.2d 546 (1979). Although there need not be an explicit or formal agreement between the several conspirators, Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Reed, 276 Pa.Super. 467, 419 A.2d 552 (1980); In Interest of Gonzales, 266 Pa.Super. 468, 405 A.2d 529 (1979); Commonwealth v. Minnich, 236 Pa.Super. 285, 344 A.2d 525 (1975), it is clear that a mere association between them, Commonwealth v. Sadusky, 484 Pa. 388, 399 A.2d 347 (1979), or their mere presence at the scene of the crime, Commonwealth v. Knox, 273 Pa.Super. 563, 417 A.2d 1192 (1980); Commonwealth v. Johnson, 265 Pa.Super. 418, 402 A.2d 507 (1979), is not enough. Moreover, the fact that a conviction may rest entirely upon circumstantial evidence in no way lessens the Commonwealth’s burden of proof beyond a reasonable doubt. Commonwealth v. Sadusky, supra; Commonwealth v. Dolfi, 483 Pa. 266, 396 A.2d 635 (1979).

Viewing the evidence adduced at trial in the light most favorable to the Commonwealth as verdict winner below, we nevertheless conclude that all of the requisite elements of criminal conspiracy were not proven beyond a reasonable doubt in the present case. More specifically, the Commonwealth has failed to prove that the three unidentified passengers had the requisite knowledge that appellant Emmi was driving a stolen vehicle. Such knowledge is crucial to the process of inferring that there was a shared intent or conspiratorial agreement between Mr. Emmi and at least one of his unknown passengers. The evidence inferentially proves only that they were passengers in a stolen vehicle and that after they entered the house, they knew that the appellant had been driving a stolen car. This proof of knowledge came too late in the time sequence of events to show that there was a conspiratorial agreement to either steal the car, or to use it without permission or authority. Proof of knowledge at that late point in time, coupled with the fact that all of the unidentified passengers accompanied the driver into the house, locked the door, extinguished the lights and did not answer the door after the police officer repeatedly knocked to gain entrance, shows that at the very most the crime of hindering apprehension or prosecution was committed and perhaps even that these three individuals conspired amongst themselves to hinder appellant’s apprehension. Thus, the evidence is insufficient to prove beyond a reasonable doubt that appellant was guilty of criminal conspiracy to commit the substantive crimes for which he was charged. Although the circumstances are such that we may suspect that the three unidentified passengers had the requisite knowledge at an earlier point in time, the law is clear that mere suspicion is not enough. “The reasonable inference of guilt must be based on facts and conditions proved; it cannot rest solely on suspicion or surmise.” Commonwealth v. Carey, 368 Pa. 157, 163, 82 A.2d 240, 242 (1951). See also Commonwealth v. Dolfi, supra; Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978); Commonwealth v. Roach, 260 Pa.Super. 261, 393 A.2d 1253 (1978); Commonwealth v. Noveroske, 255 Pa.Super. 97, 386 A.2d 154 (1978). Since the requisite knowledge on the part of the three unidentified passengers was not proven in the case at bar, the Commonwealth has failed to meet its burden of proof as to a conspiratorial agreement, whether it be express or implied, between appellant and at least one of the unidentified passengers. The evidence was, therefore, insufficient as a matter of law to prove all of the elements of criminal conspiracy beyond a reasonable doubt.

The judgment of sentence for criminal conspiracy is, therefore, reversed, the judgments of sentence for unauthorized use of an automobile and theft by receiving stolen property are affirmed, and the case is remanded for resen-tencing on these latter offenses.

WATKINS, J., files a concurring and dissenting opinion.

WATKINS, Judge,

concurring and dissenting:

I concur with that portion of the Majority Opinion which holds that the lower court’s charge to the jury was fair and impartial and did not constitute a violation of the appellant’s Constitutional right to a fair and impartial trial.

I respectfully dissent to the second part of the Majority Opinion which holds that the Commonwealth failed to establish sufficient evidence to sustain the defendant’s conviction for the offense of criminal conspiracy.

In determining whether the evidence was sufficient to sustain the verdict we must consider all the evidence in the light most favorable to the verdict winner, in this case the Commonwealth. Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). A defendant may also be convicted on circumstantial evidence. Commonwealth v. Long, 470 Pa. 204, 368 A.2d 265 (1977). It is not necessary to prove an explicit agreement to carry out a criminal act in order to prove conspiracy. Commonwealth v. Minnich, 236 Pa.Super. 285, 344 A.2d 525 (1975). While no explicit agreement was proven in the instant case the Commonwealth did prove: that the defendant was accompanied by three other persons in the stolen vehicle several hours after it was stolen; that all four actors left the stolen vehicle together after they heard the defendant tell the officer that he could produce proof of ownership of the vehicle if he were permitted to enter a certain house he had identified as his home; that all four actors entered the house together after which all the lights therein were extinguished; and that all four actors failed to respond to the officer’s subsequent repeated knockings on the door. From this set of circumstances, a jury could infer beyond a reasonable doubt that the defendant had conspired with the other actors to remove the vehicle from its owner.

The Majority holds that these facts are insufficient to establish that any of the three passengers in the vehicle had conspired with the defendant to commit the above-mentioned offenses. The Majority states that a fact finder could believe that the first time the passengers knew that the vehicle was stolen was after the policeman knocked on the door. While this is certainly possible, I would hold that the determination of this was a matter within the province of the jury. Of course, the jury did not believe what the Majority assumes. I would hold that there was sufficient évidence to enable the fact finder to decide as it did and would affirm the defendant’s conviction on the conspiracy charge.

      . Crimes Code, 18 Pa.C.S. § 3928 (1973).

      . Id at § 3925.

      . Id. at § 903.

      . Id. at § 3921.

      . Id. at § 5503.

      . It should be noted here that a missing witness inference instruction was not given to the jury, nor was one requested by the Commonwealth in the present case.

      . This is the absolute earliest time which the Commonwealth can be said to have proven knowledge on the part of the passengers that criminal activities were afoot. The inference can arise as to their knowledge only after they entered the house and embarked upon a course of action designed to avoid the police officer. No reasonable inference of knowledge and, therefore, conspiratorial agreement can properly arise before this time.

      . Crimes Code, 18 Pa.C.S. § 5105.


author: CERCONE, President Judge:

text:
    434 A.2d 147
    COMMONWEALTH of Pennsylvania, v. Norman WHALEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 30, 1981.
    Filed Aug. 21, 1981.
    Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

      Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER and JOHNSON, JJ.
   CERCONE, President Judge:

Appellant, Norman Whaley, takes this appeal from his conviction in a non-jury trial on charges of rape, unlawful restraint, recklessly endangering another person, and terror-istic threats. Appellant raises two arguments: (1) whether appellant was denied due process of law when the Commonwealth, in a rape prosecution, lost bedsheets, seized from appellant’s residence, before the sheets could be submitted to scientific analysis, and, (2) whether the court erred in denying appellant’s pre-trial motion asking that the Commonwealth be forbidden from introducing photographic and testimonial evidence regarding the lost bedsheets. We find that neither of appellant’s contentions has any merit and we affirm.

These are the facts of the instant case. According to the testimony of the victim, Vanessa Moore, on April 27,1979, in the early morning hours she was approached by appellant at the comer of 52nd and Market Streets in Philadelphia. Appellant wanted Miss Moore to accompany him and when she refused appellant grabbed Miss Moore’s umbrella and hit her with it, knocking her out. When Miss Moore came to, she and appellant were in an auto on Saint Bernard Street. Appellant paid the driver of the car $2.00 and appellant and Miss Moore, who was still dazed, went into the house. Once inside, appellant told Miss Moore that she “wasn’t going anywhere.” Miss Moore then picked up a lamp and attempted to escape by throwing it through a window, however the screen on the window stopped the lamp and the window only cracked. Appellant and Miss Moore struggled and appellant punched Miss Moore and forced her upstairs. Appellant ordered Miss Moore to undress and to lie on his bed, where appellant attempted to have sexual intercourse with her. Miss Moore continued to resist and appellant ejaculated onto the sheets.

Miss Moore was then permitted to dress and go downstairs with appellant to get something to eat. There, in a strange turn of events, Miss Moore saw a woman, a Mary Walker, who worked with Miss Moore. With Miss Walker was appellant’s brother, Camuel Whaley. Though Miss Moore was crying and told Mary Walker that appellant had beat her, nothing was done to help Miss Moore and appellant again forced Miss Moore upstairs. A second struggle ensued during which appellant kicked Miss Moore in the leg and punched her in the nose, causing her to bleed on his bed. Miss Moore subsequently escaped and reported the attack to the police that same morning.

A few hours after the attack, several officers went to appellant’s home and arrested appellant. The police took black and white pictures of appellant’s bed and seized the stained sheets, the broken living room lamp and other items. Detective Ronald Oliver was responsible for removing the sheets and taking them to the crime laboratory, where they were tagged and a property receipt was issued. The next day, Detective Oliver showed the various items to the victim, Miss Moore, for identification and the detective returned the items to the locked storeroom. Later in the day, when Detective Oliver went to the storeroom to retrieve the items and take them to the Crime Laboratory he found that the bedsheets were missing. For three weeks, the detective searched for the sheets and inquired of all personnel and of each of the fourteen detectives in his unit if any of them had inadvertently picked up the sheets. A memo was placed in the mail box of every detective each day as a reminder that he should be on the look-out for the missing items. The search was fruitless. The remaining evidence concerning the sheets was the photograph with notations made by the police, the property receipt and the testimony of three policemen who saw the sheet with the red stains on it, all of which were introduced at trial. No chemical or scientific analysis was ever made.

In his first argument, appellant contends that he was denied due process of law when the Commonwealth lost the bedsheets. Appellant denied that he raped Miss Moore and says that she consented to sexual intercourse. Appellant claims he ejaculated in Miss Moore’s vagina and that he never punched Miss Moore; therefore, appellant asserts that the loss of the sheets deprived appellant of potentially exculpatory evidence, and he cites Commonwealth v. Chapman, 255 Pa.Super. 265, 386 A.2d 994 (1978).

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court wrote:

[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

It has been held that this rule applies equally to a case involving destruction of evidence if the evidence is material to guilt and would have been favorable to the accused. Commonwealth v. Chapman, supra.

In Commonwealth v. Mace, 234 Pa.Super. 463, 341 A.2d 505 (1975), a case where a woman died following a bungled abortion, this Court was faced with a situation where certain autopsy specimens were destroyed by the laboratory where they had been analyzed. Preserved, however, were slides for microscopic study made from some of the body tissue plus remains of other body tissues. Additionally, hospital records were available as were the doctors who analyzed the tissue. The appellant in Mace argued that he was entitled to an independent medical expert’s evaluation of the autopsy specimens to determine the cause of death, and he contended that the destruction of the physical evidence made discovery under the rules of court impossible and denied him his constitutional right of due process. Relying on the United States Supreme Court decisions in Brady v. Maryland, supra and United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), the Mace court ruled that there was no denial of due process. The Mace court took note of the evidence which remained and said:

When all these factors are taken into consideration, it is apparent that the Commonwealth has not overborne the defendant by secretly amassing evidence or designing a case unfairly weighted against him. The good faith of the Commonwealth is attested to by the willingness with which it agreed at the hearing to make available its evidence and witnesses relevant to the cause of death. The validity of the findings can be tested by the defense by examination of the slides, remaining imbedded tissues, and hospital records as well as by cross-examination at trial of the prosecution’s six expert witnesses.

Id., 234 Pa.Super. at 472, 341 A.2d at 510.

Our decision in Mace relied on the rationale in Brady, wherein the Court wrote:

Society wins not only when the guilty are convicted but when criminal trials are fair. ... A prosecution that withholds evidence on demand of an accused . .. helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not “the result of a guile”....

Brady v. Maryland, supra, 373 U.S. at 87-88, 83 S.Ct. at 1197.

In the subsequent case of Commonwealth v. Chapman, supra, this Court was again asked to decide whether the destruction of certain items of evidence denied the accused, who was charged with rape, a fair trial. Of the numerous items mentioned by the accused in his brief, we found that the destruction of only one item—a pair of men’s undershorts found at the scene—arguably could have prejudiced the accused. We noted that the defendant in Chapman said that he wished to show the undershorts to the jury and to perhaps argue, based on physical appearance, that the shorts did not fit the defendant. We therefore remanded for a hearing to determine if such an argument was feasible and to determine if the undershorts would have been “evidence favorable to [the] accused.” Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. 1194. The difference between Chapman and Mace is that in Mace, although the specific items of evidence required by the defendant were not available, there was other evidence available by which the defendant could pursue his objective. The defendant in Chapman, however, asserted that he intended to use the missing item as demonstrative evidence before the jury. We found this evidence “material” within the meaning of Brady and we remanded in Chapman and directed that if, as the accused asserted, the court found that the shorts did not appear to be the accused’s, then the defendant should be granted a new trial. If a new trial was ordered, we suggested that the court either exclude all mention of the shorts or give a missing-evidence instruction.

In the instant case, appellant contends that tests on the sheets “may” have shown that there was no seminal fluid on it and “may” have shown that the red stains were not blood, or at least were not the victim’s blood. Appellant take the position that a presumption should be made in appellant’s favor that tests on the sheet would support appellant’s version of the story. Appellant’s position is not in line with Brady and the cases based thereon. In United States v. Agurs, 427 U.S. 97, 112-113, 96 S.Ct. 2392, 2401-02, 49 L.Ed.2d 342, 354-355 (1979), regarding the materiality test of Brady, the Court said:

The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated on the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt, (emphasis added)

At appellant’s trial, there was ample evidence introduced to support the guilty verdict. Besides the testimony of the victim, Miss Moore, the trial judge also heard the testimony of Mary Walker, who corroborated portions of Miss Moore’s testimony. Color photographs of Miss Moore’s bruises were introduced, as were black and white photographs of a coffee table, said to be broken in the scuffle, and black and white photographs of appellant’s bed with the stained sheets. Additionally, there was testimony from the arresting officer which indicated that the stains on the bed were a deep-reddish color, which would be consistent with Miss Moore’s statement that her nose bled on the bed after appellant punched her. Therefore, unlike Chapman, we do not find the sheets to be “material” within the meaning of Brady we do not find any denial of due process.

In a related argument, appellant asserts that the court erred in denying appellant’s pretrial motion to suppress all photographic and testimonial evidence regarding the sheets. Appellant cites Commonwealth v. Chapman, supra, as support for his position. Appellant misreads Chapman. In Chapman, we suggested that where an accused had been denied due process under the Brady rule and is granted a new trial, one possible remedy is to exclude all reference to the destroyed evidence. A second suggested remedy was to give a missing-evidence instruction. This aspect of Chapman has no bearing on the instant case since we have already determined that appellant has not been denied due process; therefore, a remand is not necessary.

Accordingly, for the foregoing reasons, we affirm.

      . In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) the Supreme Court set forth the proper standard of materiality under Brady. This standard is detailed at 150, infra.

      . In United States v. Augenblick, supra, the tape of the interrogation of a witness was lost prior to the request for discovery. The Supreme Court ruled that procedural due process was not denied the accused despite this loss. The Court held that this issue involved a federal rule of evidence under the Jencks Act, 18 U.S.C. § 3500 (1969), which did not have constitutional significance. (The Jencks Act provides for the discovery of statements made by witnesses testifying against the defendant). The Court found that the Government carried its burden of explaining why it could not produce the tape.

      . In this vein, our Supreme Court has written: “The interests of the Commonwealth do not require that a district attorney should win every case, but rather that justice should be done. The state has an interest in seeing that the innocent not be wrongfully punished, as well as in convicting the guilty.” Lewis v. Lebanon Court of Common Pleas, 436 Pa. 296, 300-301, 260 A.2d 184, 187 (1969).


author: SPAETH, Judge:

text:
    434 A.2d 151
    COMMONWEALTH of Pennsylvania, v. Robert KNOX, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed Aug. 21, 1981.

      Franchot Golub, Philadelphia, for appellant.
    Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence. Appellant’s principal argument is that his trial counsel was ineffective in failing to present an insanity defense. Finding no merit in this argument, or in appellant’s other arguments, we affirm.

On June 20,1975, appellant and two other men committed a series of violent acts against the occupants of an apartment in the building in which appellant lived. In its opinion the lower court described these events as follows:

On the pretense that Rubenna Coleman had burglarized his apartment, defendant, with his two confederates, invaded her apartment and during the course of several hours, robbed, raped, sodomized and terrorized Ms. Coleman and her luckless guests. These crimes were perpetrated with unusual depravity and brutality: the victims were alternately tied, beaten and terrorized; thé two women were sodomized and forced to commit cunnilingus on one another and fellatio on Mr. Chaney. Diane Ruff was compelled to defecate and Ms. Coleman to eat it and drink from a pail containing regurgitation and feces. Ms. Ruff was scalded with boiling water. Only the dawn brought surcease from the outrage. The police found both women exhausted and severely injured. Ms. Ruff required plastic surgery on her face.
Slip op. at 2-3.

On May 17, 1976, when the case was first listed for trial, appellant failed to appear. A bench warrant was issued but he was not apprehended until September 13, 1976. Slip op. at 10. On April 25,1977, the trial commenced, before a jury. On May 3, appellant was found guilty on two counts of aggravated assault, two counts of robbery, three counts of involuntary deviate sexual intercourse, and one count each of terroristic threats, criminal conspiracy, unlawful restraint, and possession of an instrument of crime.

On May 9,1977, appellant’s trial counsel filed motions in arrest of judgment and for a new trial, alleging only that the verdict was contrary to the evidence, contrary to the weight of the evidence, and contrary to the law. In addition, his motions referred to “[s]uch additional reasons, as counsel may file after the Notes of Testimony have been transcribed.” Appellant’s counsel subsequently withdrew his appearance and appellant obtained new counsel, who apparently filed additional post-verdict motions, including allegations of ineffectiveness on the part of trial counsel.

On August 14, 1978, and again on February 1, 1979, the lower court held hearings on appellant’s allegations of ineffectiveness of counsel. On December 5, 1979, the lower court denied the post-verdict motions and sentenced appellant. Appellant appeals from this judgment of sentence.

Appellant's principal argument is that his trial counsel was ineffective in failing to present an insanity defense.

Appellant was originally represented by James Crummett, an attorney from the Defender Association of Philadelphia. Sometime in late November 1976, after appellant’s flight and apprehension, the lower court received a letter from appellant in which appellant stated that he wished to enter a plea of not guilty by reason of temporary insanity. Slip op. at 10. Mr. Crummett then arranged to have appellant examined by Perry A. Berman, a psychiatrist associated with the Defender Association. On January 7, 1977, Dr. Berman examined appellant for a little over an hour and reviewed the records in the case, including transcripts of testimony in the cases involving appellant’s co-defendants. N.T. at 420. On January 12 Dr. Berman reported his findings to Mr. Crummett in a memorandum in which he said in part:

The nature of the crime itself indicates a need for psychiatric evaluation.
* sf: * * * *
He and his friend went to that apartment, and when they entered they started threatening the two women, and one of the men that were there. Someone threw lye on his friend and that caused both of these men to go berserk. At that point the co-defendant and this defendant started a series of what obviously seemed like crazy acts. I will not go into reporting them here, but from the description I have been given the entire episode sounds like a loss of touch with reality and a relatively psychotic state.
I am not presenting any further findings because I wish to discuss the case directly before further interviewing this man.
RECOMMENDATIONS: The usual insanity defense does not apply to this case. There does seem to have been a momentary period of insanity, and I am certain that the District Attorney would simply label that anger. I would label it anger, with loss of contact in reality. However, there is no evidence of continuing mental illness in this defendant.

In a memorandum dated January 24, 1977, Mr. Crummett requested from Dr. Berman “a total background work-up and full psychiatric profile with an aim towards preventing an insanity (temporary or otherwise) defense.” Dr. Berman did not, however, examine appellant again.

On March 23, 1977, the lower court allowed Mr. Crummett to withdraw as appellant’s attorney and appointed John Poserina to represent him. On Monday, April 25, 1977, the case was called for trial. Before the trial started the lower court judge showed Mr. Poserina a copy of the November 1976 letter, in which appellant had expressed his intention to present an insanity defense. N.T. at 31, 35. Mr. Poserina responded that this was the first time he was aware of a possible insanity defense, and stated that he had not arranged for a psychiatric examination of his client. N.T. at 36. After being informed that Dr. Berman had previously examined appellant, Mr. Poserina requested leave of the court to “try to find out within the next day or two whether Dr. Berman has any information that would be helpful.” N.T. at 40. The following day, Tuesday, April 26, the jury was sworn and testimony by the witnesses for the prosecution commenced. Testimony continued on April 27 and the morning of April 28. On the afternoon of April 28 Dr. Berman testified out of the hearing of the jury about his initial examination and diagnosis of appellant. After his testimony, the lower court stated several times its intention to give Dr. Berman enough time to review all the information available on the case—the notes of testimony in the cases so far, appellant’s confession and November 1976 letter to the court, and the report on a psychiatric examination made two weeks after the offenses were committed—so that Dr. Berman would be able to give a more complete opinion. N.T. at 471, 476-477, 478, 480, 486-188. Dr. Berman stated that he would need to speak with appellant at least briefly again, and the court told him to do so. N.T. at 484-485. Finally, the court told Dr. Berman to take the weekend to review all this information and to try to be prepared to testify more fully on the following Monday or Tuesday. N.T. at 482-483.

On the following day, Friday, April 29, Mr. Poserina informed the lower court that Dr. Berman was going to take the time allowed by the court:

Well, the doctor indicated to me that he thought as of the present moment that he would need to spend part of the weekend by going to the prison and reinterviewing the defendant and also spend substantial amounts of time reviewing notes of testimony from former trials, together with information recently supplied to him by the District Attorney’s office.
N.T. at 501-502.

At the beginning of the Monday, May 2, trial session the following interchange occurred in chambers and out of the presence of the jury:

MR. POSERINA: We recessed the court on Friday afternoon and I have been in constant communication with the psychiatrist, Dr. Perry Berman, and after consulting with him both on Saturday and Sunday over the weekend, he has explained to me how he has reviewed all of the documents which are now available to him, including defendant’s conversation or defendant’s confession, the defendant’s letter to the Judge as well as the notes of testimony of all the eyewitnesses to the incidents and based upon his review of those records, he has explained to me that he did not feel as though he could give me a positive statement that the defendant was insane as of the time he committed the acts.
THE COURT: Do you want to amplify?
DISTRICT ATTORNEY: No. In terms of insanity, does that also include temporary insanity?
MR. POSERINA: The doctor further informed me that as of the present state of the Pennsylvania law, that he did not think that defendant’s conduct would measure up to the McNaughton [sic] test. However, if there were some other test ultimately adopted by the Supreme Court, perhaps his erratic behavior would measure up to a new standard. He’s not going to determine that at this time. N.T. at 505-506.

Consequently, appellant presented no insanity defense.

It might appear that appellant’s first attorney, Mr. Crummett, was ineffective because of his failure to transmit to Mr. Poserina the documents and other information necessary to the preparation of an insanity defense. On the day the case was called for trial, Monday, April 25, Mr. Poserina had apparently not yet seen a copy of appellant’s November 1976 letter to the lower court, nor was he even aware that appellant had previously expressed any interest in presenting an insanity defense. In addition, he had not seen Dr. Berman’s January 12 memorandum to Mr. Crummett, and apparently did not even know that appellant had ever been examined by the psychiatrist. If the lower court had not given Mr. Poserina more time to get in touch with Dr. Berman and to gather the other necessary information, there might be some merit to the claim that there was ineffectiveness here. However, it is clear from the record that the lower court allowed ample time to correct any problems created by Mr. Crummett’s failure to communicate fully with Mr. Poserina and to investigate the insanity defense. Furthermore, the lower court actively facilitated the gathering of information. On Monday the court stated on the record an intention to telephone Mr. Crummett to see what information he had in his file. N.T. at 45. When it became apparent at the Thursday, April 29, hearing that neither Dr. Berman nor Mr. Poserina had a copy of Dr. Berman’s January 12 memorandum concerning his examination of appellant, the lower court arranged to have a copy delivered by the Public Defender’s office. N.T. at 437-438, 455. Finally, the lower court made certain that Dr. Berman had all the records necessary to prepare his opinion, and allowed both Dr. Berman and Mr. Poserina several days to prepare and confer.

In these circumstances, we do not consider Mr. Crum-mett’s failure to communicate with Mr. Poserina to rise to the level of ineffectiveness of counsel. We do not mean to suggest that we condone the failure—we do not—but here the point is that the lower court quite properly gave Mr. Poserina time to correct the problem created by it, with the result that appellant’s defense was not prejudiced.

As we mentioned above, the lower court held two evidentiary hearings on the issue of counsel’s effectiveness.

The first hearing was on August 14, 1978. Appellant’s trial counsel, Mr. Poserina, testified that he had decided not to present any testimony by Dr. Berman because the doctor—after spending time on the weekend going over the records of the case—had told him that he could not give testimony that would support an insanity defense. N.T. (8/14/78) at 48-52. Mr. Poserina stated that Dr. Berman had not indicated to him in any way that he needed more information, or more time, or did not feel capable of making an adequate diagnosis. N.T. (8/14/78) at 54-55, 72-73. Asked whether he had requested a continuance so that he could prepare more adequately for a psychiatric defense, Mr. Poserina replied:

No. My best judgment is that I believed what Dr. Ber-man told me, that he couldn’t give me a defense. I had no reason to believe that anybody else could give me a better one. I just didn’t know whether or not another psychiatrist could give me a second point of view.
N.T. (8/14/78) at 71.

The second hearing was on February 1,1979. Dr. Berman confirmed the testimony Mr. Poserina had given at the first hearing:

Q. Did you not in fact after the April [2]8 hearing have an opportunity to examine all of the notes of testimony regarding this matter up unto that point?
A. As far as I know.
Q. All right. And you had that entire weekend, from that Thursday or Friday until the following Monday, to review that information; is that correct?
A. Yes, as far as I recall.
Q. Now, based on all of that information that you had, minus the knowledge that this confession was alleged to be given under duress, is it a fair reflection to say, as Mr. Poserina stated on the record on Monday, May 2, that he had been in communication with you; and after consulting with you on both Saturday and Sunday over the weekend, you explained to him that you had reviewed all of the documents available to him, including the defendant’s conversation or the defendant’s confession, the defendant’s letter to the Judge, as well as notes of testimony of all eyewitnesses to the incident; and based on that review of those records, you explained to Mr. Poserina that you did not feel as though you could give a positive statement that the defendant was insane as of the time he committed the acts? Is that a fair statement?
A. I think it is.
Q. All right. That’s what Mr. Poserina testified to.
Now, would it also be fair that you told Mr. Poserina that you could—that he could inform the Court that as of the present State of Pennsylvania law, you did not think that the defendant’s conduct would measure up to the McNaughton [sic] Test? Is that a fair statement?
A. It was. I don’t recall if I put it in quite that exact wording.
N.T. (2/1/79) at 32-33.

Dr. Berman did indicate that he believed that he might have been wrong in his opinion that an insanity defense could not be presented. He did not state that his opinion was wrong. Rather he said that he should have taken more time and obtained more information before forming his opinion:

Q. Doctor, do you feel that in order for you to have testified in this matter with a more definite degree of certainty and positiveness one way or the other, that you should have had a more lengthy examination and conducted an examination more than one time regarding this defendant?
A. I think a lot more examination, more material and certainly more discussion with the attorney would have been useful.
Q. In your professional opinion, if you were going to testify at a trial regarding a man’s insanity or sanity, should more interviews, then—this is just another way I guess of asking the question—should more interviews and more examinations have been conducted with this particular person or any person to determine the issue with any degree of certainty?
A. It would have been helpful to have more interviews. What would have been useful would have been a number of things that are missing in this case. I mean now missing—referring to documents that I don’t have.
Q. So in other words, if any doctor was going to testify in a case of insanity, shouldn’t that doctor conduct extensive interviews with an individual to determine with a great deal of certainty whether or not that man is insane? In other words, isn’t it in your professional opinion that a man should be examined for more than one hour if this is going to be the defense in court.. .
MRS. FOULKES: Objection.
Q. to make that an adequate examination.
MRS. FOULKES: Objection.
THE COURT: I will permit the question.
A. Yes, generally speaking.
MR. SMALL: All right. I have no further questions.
THE COURT: Therefore, you could not have formed any opinion with any medical certainty from the brief interview that you had with the defendant and by examination of the record that was presented to you by the court? Am I correct?
MR. SMALL: Objection.
THE COURT: Well, your objection is noted.
Therefore, you could not have formulated an opinion with medical certainty that this man’s faculties were so impaired that he didn’t know right from wrong at the time that he committed these act? Is that right?
THE WITNESS: In this particular case I would agree it is right. It is not always so.
N.T. (2/1/79) at 46-48.

As we read the testimony at the two evidentiary hearings, it comes down to this: Dr. Berman, an experienced defense psychiatrist, told appellant’s counsel that on the basis of several days’ review, both of his previous interview with appellant and of all the documents and records in the case, he could not give any testimony that would support an insanity defense. Dr. Berman did not say to counsel that he was giving a qualified or tentative opinion; he did not express any need for more time or information. On the basis of this information, appellant’s counsel decided that it would be useless to present Dr. Berman’s testimony, and that he would be unlikely to get any more favorable testimony from another psychiatrist.

In these circumstances, we are unable to say that counsel’s decision was uninformed or without any reasonable basis. It is true that Dr. Berman subsequently decided that he should not have given his opinion without more information. He may be correct. However, the issue before us is the effectiveness of counsel, not the effectiveness of an expert witness. After consulting an experienced and qualified expert, who gave an opinion without expressing any reservations, appellant’s counsel made a reasonable determination that the expert’s testimony would be useless in establishing an insanity defense. We shall not allow our analysis of the effectiveness of counsel to be changed by an expert witness’s hindsight opinion that he should not have expressed any opinion in the first place.

Affirmed.

      . This is the opinion prepared pursuant to Pa.R.A.P. 1925 and filed on April 10, 1980.

      . These post-verdict motions are not included in the record as transmitted to us. It is apparent from the lower court opinion, however, that appellant’s new counsel presented additional post-verdict motions to the lower court. Slip op. at 4, 9, 20-21. The lower court opinion also suggests, however, that two of the issues raised on appeal—the evidence of flight and the hearsay statements—were not briefed or argued to the lower court. Slip op. at 4, 6, 20-21.
      Issues must be raised in written post-verdict motions or they are waived. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) (rule to apply “to every post-verdict motion which is filed sixty days [from July 6, 1979] and to any motion which is already filed, but which may still be supplemented after sixty days from this date”); Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). We have also held that when the record indicates that the issues raised in written post-verdict motions have not been presented by a brief or oral argument to the lower court, they will also be waived and we will not consider them on appeal. Commonwealth v. Perry, 279 Pa.Super. 32, 420 A.2d 729 (1980).
      However, given the state of the record as transmitted to us and the fact that these proceedings took place before we filed our decision in Perry, we shall address all the issues raised by appellant.

      . Appellant also argues that (1) the lower court improperly admitted evidence of flight and improperly charged the jury on this evidence; (2) the lower court should have granted a mistrial when one of the Commonwealth’s witnesses gave hearsay evidence concerning the identification of appellant by one of the victims; and (3) his trial counsel was ineffective for failing to file a motion to suppress certain evidence. We can dispose of these contentions rather summarily.
      The evidence concerning appellant’s failure to appear on May 17, 1976, and his eventual apprehension on ■ September 13, 1976, was admissible as evidence of consciousness of guilt. Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978); Commonwealth v. Tinsley, 465 Pa. 329, 350 A.2d 791 (1976); Commonwealth v. Osborne, 433 Pa. 297, 249 A.2d 330 (1969); Commonwealth v. Rough, 275 Pa.Super. 50, 418 A.2d 605 (1980). Thus appellant’s argument that “[r]ef-erence to the defendant’s earlier non-appearance is tantamount to a comment by the trial judge or the Commonwealth [on the] defendant’s refusal to testify,” Brief for appellant at 11, is simply wrong. Furthermore, the lower court’s charge to the jury on this point was fair and did not in any way place undue emphasis on the evidence or suggest to the jury that it should find appellant guilty. N.T. at 758-760. (Unless otherwise noted, all references are to the notes of testimony of the trial in the lower court.)
      At trial the officer who arrested appellant referred to a statement by one of the victims, identifying appellant. N.T. at 252. The lower court granted appellant’s motion to strike this evidence as hearsay and instructed the jury to disregard the statement. N.T. at 260-261. Since there was a great deal of other evidence identifying appellant as the perpetrator, and since the lower court immediately gave a cautionary instruction, we do not regard the court’s refusal to grant a mistrial as error. See Commonwealth v. Brown, 444 Pa. 318, 282 A.2d 364 (1971). Commonwealth v. Walley, 262 Pa.Super. 496, 396 A.2d 1280 (1978).
      Finally, appellant’s trial counsel was not ineffective in failing to file a motion to suppress evidence. At a hearing before the trial began appellant repeatedly and clearly stated that he did not wish his attorney to file a motion to suppress. N.T. at 7, 18, 20, 22-25. The lower court engaged in a thorough colloquy with appellant in order to explore the possible merits of such a motion and to establish appellant’s understanding of what he was giving up. The lower court’s finding that appellant made a voluntary and intelligent waiver of his right to file a motion to suppress is fully supported by the record of this hearing. N.T. at 4-27; slip op. at 19-20.


text:
    434 A.2d 157
    COMMONWEALTH of Pennsylvania v. Antonio URBINA, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed Aug. 21, 1981.

      Thomas B. Schmidt, III, Harrisburg, for appellant.
    Michael H. Ranck, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence for unlawful restraint and robbery. The principal issue, as we see it, is whether appellant was arrested without probable cause. We have concluded that there was probable cause, and affirm.

Appellant was arrested for committing an armed robbery at the Weis market in East Hempfield Township, Lancaster County. Officer Robert A. Herman, Jr., the East Hempfield Township police officer who arrested appellant, relied on two sources of information: a radio broadcast from the Lancaster County Radio Dispatcher, and Kearney Sherr, the owner of a service station approximately one block from the Weis market. At 7:37 A.M. on October 28, 1978, while at the township police station, Officer Herman heard over the police radio a report that there had been an armed robbery at the Weis market. The officer responded to the call by driving to the shopping plaza where the Weis market was located. En route he received information on the police radio describing the robber as a black or Puerto Rican male with a handgun who was last seen running from the market to the northeast corner of the parking lot in the shopping plaza. The officer drove to this corner and conducted an on-foot search of the area. Finding nothing, he returned to his police car, where he heard over the radio that an individual from a service station near the Weis market was traveling east on Columbia Avenue in pursuit of a small white foreign automobile with out-of-state license tags. Proceeding east on Columbia Avenue, the officer encountered traffic caused by an unrelated automobile accident. At the scene of this accident he was approached by Kearney Sherr, who was the service station owner who had been in pursuit of the white automobile. Sherr told Officer Herman that about 7:45 a. m. he heard a report of the robbery on his police radio scanner; that he went to watch the traffic coming from the parking lot at the Weis market, and saw a white automobile, going at a “fairly good rate of speed,” leave a trailer court one half block from his station, between the station and the Weis market; and that he had followed the white automobile to a parking lot in the Conestoga West Apartments in neighboring Manor Township. The officer asked Sherr to take him to the parking lot. When they arrived, Sherr identified an automobile there as the one he had followed. Appellant was at the driver’s side, and the officer arrested him; the time of the arrest was approximately 7:51 a. m.

The law is clear that a warrantless arrest is not lawful unless there is probable cause therefor .. . Whether there is probable cause to arrest without a warrant depends on whether, at the moment a suspect is taken into custody, the facts and circumstances within the officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution to believe that an offense has been committed and that the person to be arrested has committed the offense. ..
Thus, in order to arrest without a warrant, the officer must have a reasonable belief in the probability of criminal activity by the person to be arrested. However, that belief need not be grounded in the officer’s direct, personal knowledge of the relevant facts and circumstances. It may, instead, rest solely on information supplied by another person where there is a “substantial basis” for crediting that information ...
Commonwealth v. Stokes, 480 Pa. 38, 43-44, 389 A.2d 74, 76 (1978) (citations omitted).

See also Commonwealth v. Patterson, 266 Pa.Super. 167, 403 A.2d 596 (1979).

Here, there is no question that Officer Herman had a reasonable belief that a crime had been committed. The question, rather, is whether the officer had sufficient information to support a reasonable belief that appellant had committed the crime.

In arguing that the information was not sufficient, appellant particularly relies on Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d 237 (1974), Commonwealth v. Ryan, 253 Pa.Super. 92, 384 A.2d 1243 (1978), and Commonwealth v. Everett, 234 Pa.Super. 249, 338 A.2d 662 (1975). Certainly these cases are in point; we think, however, that they are distinguishable.

In Daniels the officer had two sources of information; one source “only observed two men acting ‘suspiciously’, and had no idea of the identities of the people he observed,” 455 Pa. at 557,317 A.2d at 239, the other, who named the defendant, was an anonymous caller who gave no indication of how he had obtained his information. In Ryan the officer had received radio information that a robbery had been committed by two men, one of whom was described as a Negro male, dark, about 5'8", and wearing a black coat, and that the men had fled in a Cadillac, which had been wrecked, and were being pursued on foot. The officer “proceeded to the scene of the chase, and near the area observed a Negro male .. . who appeared to fit” the radio description and was “walking quickly.” 253 Pa.Super. at 98, 99, 384 A.2d at 1246, 1247. In Everett the officers had received radio information that a robbery had been committed by two black males, one of whom was wearing a white T-shirt, who were believed to have escaped by automobile. Less than ten minutes later the officers saw two black males a short distance from the scene of the robbery; one was wearing a T-shirt; also, one was pounding the door of a house and the other was lounging half in and half out of a car with out-of-state plates. As the officers approached, the two men walked towards them. When within twelve to fifteen feet of them, the officers heard someone from inside the house yell that the men did not belong there. In all of these cases it was held that the arrest was without probable cause.

The feature that distinguishes these cases from the present case is that in none of them was the arresting officer accompanied by an informant who had seen the suspect flee from the scene of the crime. In Daniels the Supreme Court specifically noted this weakness, commenting that “neither source can be said to be an eyewitness.” 455 Pa. at 557, 317 A.2d at 239.

The lower court relied on Commonwealth v. Wilder, 461 Pa. 597, 337 A.2d 564 (1975), and Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974). In Wilder the arrest was for a shooting on a parking lot. A few minutes before the shooting, two boys had seen a black Chevrolet on the lot; they heard shots and saw the Chevrolet speed from the lot, going the wrong way on a one-way street. The arresting officers received a radio report describing “a full-size black Chevrolet, possibly with a loud muffler, occupied by two black males.” 461 Pa. at 600-01, 337 A.2d at 566. The officers saw such an automobile, within fifteen blocks of the scene of the shooting, and less than fifteen minutes later, and stopped it and arrested the driver and passenger. Moments before the officers stopped the automobile, they heard a radio report by another officer that the suspected automobile had sped past him at the Bloomfield Bridge, which was near where the officers first saw the automobile. When they stopped it, it was traveling at a normal rate of speed and the driver was observing traffic signals. In Jones the arrest was for a shooting during the robbery of a grocery store at 5416 Westminister Avenue in Philadelphia. A neighbor saw two boys outside the store, and three others who joined them, fleeing from the store. He chased them in his automobile south on 54th Street to Ogden Street and east on Ogden to 52nd Street, where three of the boys caught a bus and two fled down an alley. At that point Officer Green took up the chase until he lost track of one of the boys at 50th and Brown Streets. Meanwhile, Officer Abrams had received radio information that a robbery had been committed at 54th and Westminister Avenue by “four or five Negro males between the ages of 17 and 21 in dark clothing,” 457 Pa. at 426, 322 A.2d at 122, and that the robbers had fled eastward. When Officer Abrams saw a man who fit this description walking very fast in the 4900 block of Parrish Street, about two blocks from 50th & Brown Streets breathing heavily, perspiring, and frequently looking over his shoulder, he stopped and arrested him. In both Wilder and Jones the Supreme Court found probable cause for the arrest.

We recognize that Jones may be distinguished from the present case; appellant did not present the suspicious appearance presented by the suspect in Jones. We find it difficult, however, to distinguish Wilder; if anything, the facts here seem stronger than they were in Wilder, for in Wilder the police did not have an informant who never lost sight of the fleeing car.

In Commonwealth v. Pegram, 450 Pa. 590, 593, 301 A.2d 695, 697 (1973), the Supreme Court held that “flight standing alone” is not sufficient to support a finding of probable cause. The Court went on to quote with approval the following statement from United States v. Margeson, 259 F.Supp. 256, 265 (E.D.Pa.1966):

Flight, coupled with other factors, such as knowledge of the defendant’s prior criminal record or the sight of contraband or screams for help or reliable information that defendant had attempted to commit or had committed a crime, may be strong indication that there is something that those fleeing wish to hide from the police and may constitute probable cause for arrest ....

It is probably impossible to reconcile the cases as to when there are enough “other factors,” in addition to flight, to constitute probably cause. For example, Commonwealth v. Ryan, supra, and Commonwealth v. Everett, supra, seem to require a stronger showing of probable cause than does Commonwealth v. Wilder, supra, although in this regard we note that in Ryan and Everett the decision on probable cause was not central to disposition. In Ryan the in-court identification was found to be not tainted by the arrest, and in Everett, after the arrest the officers received additional untainted information that corroborated their belief that the defendant’s automobile was the escape vehicle, and provided probable cause.

Such differences among the cases, however, should not surprise us. The facts and circumstances of every case differ; it is impossible to classify them and thereby derive a formula that will enable us to say that in one case probable cause has been shown, in another, not. In one case a particular fact may be of great significance to the arresting officer, in another it may not help him at all in surmising what is happening. Besides, even if the facts of any two cases were just the same, different judges might still reasonably disagree about how the officer as “a man of reasonable caution” should have reacted.

Here, Officer Herman knew that Kearney Sherr had seen an automobile, not from the neighborhood, leave the immediate area of the robbery right after the robbery was committed, at a rate of speed fast enough to attract attention. (We acknowledge that Sherr did not see appellant commit the robbery. However, in Commonwealth v. Jones, supra, neither did the neighbor who chased the boys see them rob the grocer.) Also, the officer knew that Sherr had been sufficiently impressed by what he saw to pursue the automobile. (Of course, simply because Sherr was impressed did not mean he was right. Nevertheless, we think an officer is entitled to give some weight to the fact that a citizen is so convinced he gives chase, especially when the citizen operates a service station across from the scene of the robbery and may therefore be assumed to be familiar with comings and goings in the area.) Also, Sherr took the officer to the place to which he had pursued the automobile, and there beside the automobile was a man who fit the description of the robber broadcast over the police radio. (Admittedly, it was only a very general description. Still, it fit.) Finally, only a few minutes had elapsed between the time of the robbery and the time Sherr took the officer to appellant’s automobile. While it may be said that the officer did not have many facts, we believe that in the circumstances he had enough.

Affirmed.

      . The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, Section 1, 18 PA.C.S.A. § 2902.

      . 18 Pa.C.S.A. § 3701.

      . Appellant also argues that evidence was improperly taken from his automobile; that testimony about a photographic line-up was admitted to his prejudice; and that the trial judge should have declared a mistrial because a juror reported late. These arguments are properly disposed of by the opinion of the lower court (ECKMAN, J.). Finally, appellant argues that the verdicts were contrary to the weight of the evidence. It appears to us that this argument has been waived. Although raised in appellant’s post-trial motion, so far as we can tell it was not pressed on argument before the lower court. See slip op. at 2, where the court enumerates appellant’s arguments. To be preserved for appellate review, an issue must not only be raised by post-trial motion, but also, not abandoned when the case is argued to the lower court. See generally Carnicelli v. Bartram, 289 Pa. Super. 424, 433 A.2d 878 (1981) (discussing cases). See also Commonwealth v. Waters, 477 Pa. 430, 434, 384 A.2d 234, 236 (1978) (“boilerplate” motions disapproved; “counsel’s precise statement of issues and grounds relied upon in written form insures that both the trial court and the Commonwealth will have adequate notice of the legal theories being advanced”); Commonwealth v. Perry, 279 Pa.Super. 32, 420 A.2d 729 (1980) (issue raised in post-verdict motion but not briefed; held, waived); Pa.R.Crim.P. 1123(a) (“only those issues raised and the grounds relied upon in the [post-verdict] motions may be argued”). In any event, the argument is without merit. One witness identified appellant as the robber. (N.T. 18-19) The robber was wearing a wig. (N.T. 47) Microscopic analysis showed that fibers found in a hairbrush taken from appellant’s automobile were of the same material, color, and diameter as fibers from the wig. (N.T. 95).

      . Appellant is described in the Commonwealth’s brief as being a Cuban male.


text:
    434 A.2d 161
    Robert C. ALOI v. Mary Jo ALOI, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1980.
    Filed Aug. 21, 1981.

      Edward F. Urbanik, Pittsburgh, for appellant.
    Robert Raphael, Pittsburgh, for appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from an order denying exceptions to the master’s report in a divorce action and refusing to reopen the report. After the appeal was taken the lower court entered a divorce decree in favor of appellee. We have concluded that we must quash the appeal, as from an interlocutory order, and vacate the decree, as entered without jurisdiction.

On November 29, 1978, appellee filed his complaint in divorce. A master was appointed, and after at least one postponement a master’s hearing was scheduled for July 3, 1979. Appellant filed a motion for a delay in the master’s hearing until after her petition for counsel fees and expenses had been heard, but on July 2 the lower court denied the motion. The master’s hearing was therefore held as scheduled. Neither appellant nor her counsel attended the hearing. About midway through the hearing an associate of appellant’s counsel did appear to place on the record his objection to the hearing being held at that time and to state that a stay of the hearing was then being requested in this court. The request for a stay, presented in the form of a petition for review, was denied by this court that same day and by the Supreme Court on August 7, 1979.

On October 12, 1979, the master filed his report recommending that a divorce be granted, and twelve days later appellant filed exceptions of a boilerplate variety. At some point appellant also presented a petition to re-open the master’s report. It is not clear from the record just when or how this petition was presented. Appellant states in her brief that she “sought to re-open” before the master filed his report. Brief at 3. Appellee’s brief indicates that the petition was filed at the same time as the exceptions to the master’s report. Brief at 5. According to the lower court’s docket entries, the petition was filed on June 2, 1980, which was almost four months after the appeal to this court was taken. In any event, when appellant’s exceptions to the master’s report came before the court en banc for argument, appellant’s counsel told the court that he did not deny that the record as it existed established a case for divorce but that the petition to re-open the master’s hearing had not been disposed of. Appellant’s brief to the court en banc also failed to argue the exceptions and was limited to the petition to reopen. In view of appellant’s brief and the concession at oral argument that the record as it existed did establish a case, the court en banc saw the petition to re-open as being the only matter before it. With regard to the petition, the court believed that it was in effect being asked to find that the judge who had denied appellant’s motion for a delay in the master’s hearing on July 2 had been wrong. The court noted that “[a] long line of cases has held that the decision of one judge of the Court of Common Pleas should not be reviewed by another judge of the same court, absent a change in circumstances. [Citations omitted.]” Slip op. at 2. The court then entered an order dated January 31, 1980, dismissing the exceptions and denying the petition to re-open. It was from that order that this appeal was taken on February 12. On February 14, 1980, the court entered a decree of divorce.

-1-

Our jurisdiction is limited to appeals from final orders and to such appeals from interlocutory orders as authorized by law or permitted upon certification by the lower court. 42 Pa.C.S.A. §§ 702, 742; Pa.R.A.P. 301-312. The question of jurisdiction is one that we not only may but are required to raise sua sponte. Penstan Supply, Inc. v. Hay, 283 Pa.Super. 553, 424 A.2d 950 (1981).

An order dismissing exceptions and refusing to reopen a master’s report is not a final order nor is it made appealable by any statute or general rule. Although entitled to careful consideration, the recommendation and findings of a master in a divorce action are only advisory; the lower court must still independently satisfy itself that a grant of a divorce is proper. Rankin v. Rankin, 181 Pa.Super. 414, 124 A.2d 639 (1956); Rinoldo v. Rinoldo, 125 Pa.Super. 323, 189 A. 566 (1937).

In Elsesser v. Elsesser, 80 Pa.Super. 117 (1922), we quashed an appeal taken from a jury verdict, noting that even when the facts had been conclusively determined by the jury, it was still the duty of the lower court to determine whether under the law a divorce was proper, and that only after the entry of a final decree was an appeal proper. In Steinman v. Steinman, 144 Pa.Super. 193, 18 A.2d 816 (1941), the appeal had been taken from an order directing that a decree be entered when certain costs were paid. Although we did consider the merits, we repeated that only the final decree was properly appealable. Here, when the appeal was taken, the lower court had not gone so far as the court in Steinman.

-2-

Although the lower court’s order of January 31, 1980, was not appealable, even an improper appeal divests the lower court of jurisdiction to proceed further. Pa.R.A.P. 1701(a); Weise v. Goldman, 229 Pa.Super. 187, 323 A.2d 31 (1974). Certain exceptions are provided by Pa.R.A.P. 1701(b) but the entry of a final decree of divorce is not one of them. Nor may it be maintained that the entry of a final decree of divorce after the dismissal of exceptions to a master’s report recommending a divorce is a perfunctory matter. Such a decree is not perfunctory, because, as discussed above, it requires an independent determination by the court that a divorce is proper. And see 3 Goodrich-Am-ram 2d § 1135:2; 15 Standard Pennsylvania Practice 425. It may be contrasted to the entry of judgment following dismissal of exceptions in an assumpsit action tried without a jury, which can be accomplished by either party merely on praecipe. See Penstan Supply, Inc. v. Hay, supra. Therefore, once this appeal was taken albeit from an unappealable interlocutory order, the lower court had no power to enter a final decree.

Appeal quashed and divorce decree vacated.

      . Appellant’s brief shows that she is fully aware that her appeal was not taken from the divorce decree. As part of her argument she states, “Here the Court issued a decree after the appellant filed a notice of appeal from the order denying the petition to re-open the hearing and exceptions to the master’s report.” Brief at 7-8 (emphasis in original). However, she does not explain why she believes the lower court’s order of January 31 to be a final order, although she so characterizes it in her statement of jurisdiction.