author: POPOVICH, Judge: WIEAND, Judge,

text:
    452 A.2d 729
    COMMONWEALTH of Pennsylvania v. Matheno Ford BEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 30, 1982.
    Filed Oct. 1, 1982.
    Reargument Denied Dec. 13, 1982.
    Petition for Allowance of Appeal Granted June 8, 1983.

      Douglas M. Johnson, Public Defender, Norristown, for appellant.
    Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

After a jury trial, appellant, Matheno Ali Ford-Bey, was found guilty of Criminal Attempt to Commit Murder (18 Pa.C.S.A. § 901), Recklessly Endangering Another Person (Id. at § 2705) and Possession of an Instrument of Crime (Id. at § 907). Post-trial motions were filed and denied. Thereafter, appellant was sentenced to serve 2 to 5 years for attempted murder and a concurrent 2 to 5 years for possession of an instrument of crime. The sentence for reckless endangerment was suspended. This appeal followed. We reverse in part and affirm in part.

The facts concerning the instant case, viewed in a light most favorable to the verdict-winner, consist of the following: On April 6, 1980, Thomas Jones was with his girlfriend at her sister’s apartment, which was located in Pottstown, Pa. At approximately 2:30 p.m., the doorbell rang and Jones used the intercom system to ask who it was. When the caller identified himself as “Sam,” Jones recognized that it was Sanford Harling, Jr., an acquaintance he had known for some nine, ten months prior to this date. When Jones informed his girlfriend’s sister who it was, she told him to let the person in. Jones complied and depressed a button on the intercom that released the lock on the entrance to the apartment building. Jones peered through the “peep-hole” and saw no one other than Harling standing outside the door. However, when the apartment door was opened, he observed Harling in the company of the appellant and Eli Ford-Bey, appellant’s brother, whom he had known for about a year and a half. Eli directed Jones to step outside. When Jones asked why, he received no response. Eli merely stated, “Come outside or we are going to come inside and get you.” At this point, Jones’ girlfriend arrived at the door, pulled him (Jones) back into the apartment and locked the entrance. Eli warned Jones that if he stayed in the room, the door would be kicked down.

Jones, in an attempt to protect himself, retreated to the kitchen and retrieved a carving knife, which was about a foot in length—handle and blade. Jones placed the knife in his slacks, but the handle was clearly visible. Thereafter, Jones stepped outside the door and Eli grabbed him by the collar to pull him down the stairs. Jones reacted by “withdrawing] the carving knife from [his] side.” Eli, in turn, also pulled a knife. Harling, seeing the weapons, stated “there wasn’t going to be any knives used, to give him the knives.” Eli complied, but Jones refused. The four men then made there way outside the building. Once in the open, Jones observed Eli pass a gun to the appellant. Then, appellant, at a distance of about five, six feet, aimed the weapon at the victim and pulled the trigger. However, “it didn’t go off” because the safety was on. After releasing the safety, appellant pulled the trigger again, and this time it fired, striking the victim in the right side of the chest. The victim, although wounded, made his way back to the apartment and had the police summoned. Thereafter, the appellant was arrested.

On appeal, appellant contends that the trial court erred in: 1) not charging the jury on the elements of the crime of murder and the common law definition of murder; 2) insufficiently instructing the jury as to each and every element of the crimes; 3) refusing to give a self-defense charge; 4) sustaining the convictions for criminal attempt and possession of an instrument of crime; and 5) upholding appellant’s convictions for attempted murder and recklessly endangering another person.

We will consider appellant’s first, second and third contentions together, inasmuch as they all deal in some respect with a claimed deficiency in the lower court’s charge to the jury.

We note, initially, that after the lower court granted the Commonwealth’s request for a correction and clarification on a certain aspect of the charge, the following exchange occurred:

“Satisfactory, Mr. Iacovitti[—the Commonwealth’s attorney]?
MR. IACOVITTI: Yes, sir. Thank you, Your Honor. THE COURT: Mr. Josel[—co-defendant’s counsel]?
MR. JOSEL: Yes, Your Honor.
THE COURT: Mr. Keenan[—appellant’s counsel]?
MR. KEENAN: Yes, sir.
THE COURT: All right, members of the jury, you are now released from the Court’s edict not to talk about this. Now is the time you can go and you can talk about it. You are escorted to the jury room and you can discuss it all you want to. The Exhibits will be brought to the jury room along with you. There will be a jury sheet also brought out to the jury room.
(The jury left the Courtroom at 3:10 p.m.).” (Emphasis added) (N.T. 385)

Under Pa.R.Crim.P. 1119(b), “No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury.” (Emphasis added) Instantly, we see, from a review of the transcript, that appellant took no “specific objection” to the charge “before the jury retired to deliberate.” In similar situations, the courts of this Commonwealth have stated: “The objection must be viewed as untimely because raising it for the first time on appeal denies the trial court an opportunity to correct the alleged error. Thus, appellant’s.claim is waived.” Commonwealth v. Scarpino, 494 Pa. 421, 428, 431 A.2d 926, 929 (1981) (citing cases); Commonwealth v. Hill, 492 Pa. 100, 422 A.2d 491 (1980) (Opinion in Support of Affirmance). We can do no less in the case at bar.

The fourth assertion proffered by appellant concerns his conviction and sentence for both attempted murder and possession of an instrument of crime. The lower court’s response to such averment is that, “even if we assume the [appellant] is correct, the practical effect of the ‘possession’ conviction is non-existent since the sentence of two to five years runs concurrently with the attempted murder sentence of two to five years, there is no additional penalty, hence any further discussion is superfluous.” (Lower Court’s Opinion at 4) We disagree.

Under 18 Pa.C.S.A. § 906:

“A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.”

The two crimes for which the accused was found guilty by the jury fall within the perimeter of Chapter 9 of the Crimes Code, the Chapter mentioned in Section 906, and it is obvious from the facts recounted herein that both offenses were committed with one objective in mind. Accordingly, appellant’s conviction for attempted murder and possession of an instrument of crime was improper. See Commonwealth v. Von Aczel, 295 Pa.Super. 242, 441 A.2d 750 (1982); Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981).

Inasmuch as the lower court was erroneous in its interpretation of the law, to remedy the situation, we have the option to either remand for resentencing, or amend the sentence, directly. Act of July 9, 1976, P.L. 586, No. 142, § 2, June 27, 1978; 42 Pa.C.S.A. § 706 (Purdon’s 1981). We exercise our discretion, as permitted by statutory and case law, to amend the sentence on appeal. Since the sentence of possession obviously did not affect the sentence for attempted murder, both consisted of two to five years imprisonment and were ordered to be served concurrently, “we shall not remand but shall merely vacate the sentence imposed for possession of an instrument of crime as the lesser offense. Commonwealth v. Crocker, 280 Pa.Super. 818, [470], 421 A.2d 818 (1980).” Commonwealth v. Von Aczel, supra, 295 Pa.Super. at 255, 441 A.2d at 756; Commonwealth v. Turner, supra.

Lastly, appellant avers that the trial court erred in sustaining his conviction and sentence for attempted murder and recklessly endangering another person, since the former offense requires a specific intent and the latter necessitates a reckless act. (Appellant’s Brief at 10)

Although inartfully stated, appellant seems to be arguing that the two offenses just cited merge, and, therefore, the sentence imposed for both offenses, albeit to be served concurrently, is prohibited. We do not agree.

To begin with, the test for merger of offenses was stated in Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 104-105, 21 A.2d 920, 921 (1941), as follows:

“The true test of whether one criminal offense has merged in another is not (as is sometimes stated) whether the two criminal acts are ‘successive steps in the same transaction’ but it is whether one crime necessarily involves another, as for example, rape involves fornication, and robbery involves both assault and larceny. The ‘same transaction’ test is valid only when ‘transaction’ means a single act. When the ‘transaction’ consists of two or more criminal acts, the fact that the two acts are ‘successive’ does not require the conclusion that they have merged. Two crimes may be successive steps in one crime and therefore merge, as, e.g., larceny is merged in robbery, and assault and battery is merged in murder, or they may be two distinct crimes which do not merge.”

In the case before us, appellant was convicted of recklessly endangering another person. A person is guilty of this offense “if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705. As for the conviction of attempted murder, one is guilty of such offense if he takes a substantial step toward the commission of a killing, with the specific intent in mind to commit such act. Commonwealth v. Reese, 237 Pa.Super. 326, 352 A.2d 143 (1975).

Instantly, when the appellant first aimed the loaded pistol at the victim and pulled the trigger, it did not fire. Nonetheless, such conduct was sufficient to constitute reckless conduct “which place[d] or may [have] placed another person in danger of death or serious bodily injury.” See Commonwealth v. Goosby, 251 Pa.Super. 326, 380 A.2d 802 (1977) (where accused pointed a gun at two officers, and both officers testified that they heard several “clicking sounds” emanating from defendant’s direction, charge of reckless endangerment was proper); see also Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979). As for appellant’s second effort to fire the weapon, which discharged into the victim, we find no difficulty in holding that such conduct was sufficient to convict the accused of attempted murder. Commonwealth v. Reese, supra.

The fact that the two separate acts were successive steps in the same transaction does not warrant a conclusion that the two offenses merge. Rather, it is where one crime necessarily involves another. Commonwealth ex rel. Moszczynski v. Ashe, supra. Moreover, “in order for one crime necessarily to involve another, the essential elements of one must also be essential elements of the other.” Commonwealth v. Belgrave, 258 Pa.Super. 40, 48, 391 A.2d 662, 666 (1978); quoting Commonwealth v. Olsen, 247 Pa.Super. 513, 520, 372 A.2d 1207, 1211 (1977). Appellant does not contend that the essential elements of the offenses are the same, thus mandating a merger of the two offenses. Instead, appellant argues that, “[a] person cannot be found guilty of two crimes for the same offense when the nature of the intent required differs. Attempted Murder requires a specific intent and Recklessly Endangering Another Person requires a reckless act.” (Appellant’s Brief at 10) We agree with the appellant in part, i.e., that the two statutes in question require two different types of intent, but not to the extent that the evidence presented precluded him from being convicted of both offenses.

In light of the testimony presented at trial, the evidence was sufficient to establish that appellant perpetrated two separate crimes by his action of firing a weapon at the victim. See Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1980); see also Commonwealth v. Detrie, 263 Pa.Super. 75, 397 A.2d 2 (1979); Commonwealth v. Williams, 252 Pa.Super. 435, 381 A.2d 1285 (1977).

Judgment of sentence for possession of an instrument of crime vacated. Judgments of sentence for attempted murder and recklessly endangering another person affirmed.

McEWEN, J., concurs in the result.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. The trial court’s instructions to the jury failed to contain a definition of murder. Because of this deficiency the jury was prevented from making an intelligent decision on the charge of attempt to commit murder. Therefore, appellant should receive a new trial.

“A person commits an attempt when, with the intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S. § 901. In the instant case, the specific crime alleged to have been attempted was murder. Murder is defined according to the common law definition. It is the unlawful killing of another person with malice aforethought. Malice “consists of an express intent to kill or inflict serious bodily harm, or a ‘wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty’ which indicates an unjustified disregard for the likelihood of death or great bodily harm and an extreme indifference to the value of human life.” Commonwealth v. Coleman, 455 Pa. 508, 510, 318 A.2d 716, 717 (1974) quoting from Commonwealth v. Chermansky, 430 Pa. 170, 175, 242 A.2d 237, 240-41 (1968). See also: Commonwealth v. Thompson, 466 Pa. 15, 19, 351 A.2d 280, 282 (1976). An accused charged with criminal attempt to commit murder, while not entitled to a charge on the various degrees of homicide, is nonetheless entitled to an instruction as to the elements of murder. Commonwealth v. Reese, 237 Pa.Super. 326, 333, 352 A.2d 143, 147 (1975).

In the instant case, the totality of the trial court’s instruction pertaining to attempted murder was contained in the following:

The District Attorney of Montgomery County by this information charges that—and I am going to drop the name Mattheno and say Ali—Ali Ford-Bey and Eli Ford-Bey on or about April 6 of 1980, in the said county of Montgomery, did unlawfully and feloniously attempt to commit the specific crime of murder, by doing an act constituting a substantial step toward the commission of, and then and there having the intent to commit the said specific crime, all of which is against the Acts of Assembly, and the peace of dignity of the Commonwealth of Pennsylvania.
Now, criminal attempts is defined as follows. I am not going to read the entire law on criminal attempts, because it is not all applicable, according to the evidence which has been presented here.
Criminal attempt definition: a person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.
There is more to the act, but I am not going to go beyond that.

“ ‘The primary duty of a trial judge in charging a jury is to clarify the issues so that the jury may understand the questions to be resolved.’ Commonwealth v. Jordan, 407 Pa. 575, 587, 181 A.2d 310, 316 (1962).” Commonwealth v. Litman, 276 Pa.Super. 114, 118, 419 A.2d 121, 123 (1980). An appellate court will uphold the trial court’s charge to the jury if it “adequately and accurately reflects the law and [is] sufficient to guide the jury properly in its deliberations.” Commonwealth v. Reynolds, 256 Pa.Super. 259, 277, 389 A.2d 1113, 1122 (1978). In my judgment, the trial court’s instructions in the case sub judice did not sufficiently define the crime of attempted murder or identify the issues to be resolved by the jury. Despite the fact that the Commonwealth was required to prove “a substantial step toward the commission of [murder],” 18 Pa.C.S. § 901, the crime of murder was never defined, and the jury was never instructed regarding the elements of that crime.

Appellant contended at trial that the act of shooting had been committed in self-defense. Moreover, the victim con-cededly had been carrying a knife. Therefore, it was essential that the attention of the jury be directed to the legal components of the offense with which appellant had been charged. Because the trial court completely failed to include in its instructions the elements of murder, the jury was required to engage in unguided speculation regarding the commission of an attempt to commit that crime.

The writer of the lead opinion holds that appellant waived this defect in the trial court’s jury instructions by not specifically objecting to the charge before the jury had retired to begin its deliberations. I am unable to agree that this is what occurred. When counsel for the parties were asked for additions or corrections, appellant’s counsel responded: “I have none, other than the exceptions we mentioned previously.” Immediately after the jury had left the courtroom, counsel approached the bench and said: “Your Honor, I would like to put on the record the exception that I discussed earlier with you as to the charge, in that I think the crime of murder should be included as to all its elements.” The trial judge did not in any way contradict defense counsel’s statement but responded: “The record will so reflect the objection which has been put on the record.” The deficiency in the court’s charge was also preserved specifically in post-verdict motions and was discussed and decided by the trial court in the opinion by which it denied appellant’s post-verdict motions. Under these circumstances, I would hold that the insufficiency of the trial court’s instructions has been adequately preserved for appellate review. See: Commonwealth v. Young, 474 Pa. 96, 101, 376 A.2d 990, 992 (1977); Commonwealth v. Marshall, 273 Pa.Super. 344, 348, 417 A.2d 681, 683 (1979); Commonwealth v. Wilds, 240 Pa.Super. 278, 283 n. 9, 362 A.2d 273, 276 n. 9 (1976).

Because the issues may arise upon the new trial which I deem necessary, I would note my agreement with the majority that the Pennsylvania Crimes Code, 18 Pa.C.S. § 906, renders appellant’s convictions for two inchoate offenses designed to culminate in the same crime improper. See: Commonwealth v. Von Aczel, 295 Pa.Super. 242, 248, 441 A.2d 750, 756 (1981); Commonwealth v. Turner, 290 Pa.Super. 428, 434, 434 A.2d 827, 830-31 (1981); Commonwealth v. Jackson, 280 Pa.Super. 522, 523-24, 421 A.2d 845, 846 (1980); Commonwealth v. Tingle, 275 Pa.Super. 489, 499-500, 419 A.2d 6, 11-12 (1980); Commonwealth v. Jackson, 261 Pa.Super. 355, 361, 396 A.2d 436, 438-39 (1978); Commonwealth v. Crocker, 256 Pa. Super. 63, 66-68, 389 A.2d 601, 603-04 (1978). However, unlike the majority, I am of the opinion that under the circumstances of this case the crimes of recklessly endangering the victim of the shooting and attempted murder of the same individual merged for sentencing purposes. See: Commonwealth v. Musselman, 483 Pa. 245, 247 n. 1, 396 A.2d 625, 625-26 n. 1 (1979). Indeed, the Commonwealth’s brief concedes such merger.

I would reverse and remand for a new trial.

      . Attempt to commit murder is a felony of the second degree, 18 Pa.C.S.A. § 905(a) (Supp.1981-82), and thus exposed the appellant to a possible term of imprisonment of up to 10 years, id at § 1103(2). Possession of an instrument of crime is a misdemeanor of the first degree, id at § 907, carrying a possible term of imprisonment of 5 years. Id. at § 1104(1).

      . We note for edification purposes that, despite the fact that the sentence for reckless endangerment was suspended, which the lower court holds results in the issue not meriting “any further consideration,” the courts of this Commonwealth have recognized that the conviction for which a judgment of sentence has been suspended is appealable. See Commonwealth v. Elias, 394 Pa. 639, 642, 149 A.2d 53, 55 (1959) (citing cases); Commonwealth v. Meszaros, 194 Pa.Super. 462, 466, 168 A.2d 781, 783 (1961); Commonwealth v. Tluchak, 166 Pa.Super. 16, 21, 70 A.2d 657, 660 (1950).

      . The only additional reference to the crime of murder was in a defense point for charge read by the trial court as follows: “[I]n order for this crime [i.e. murder] to exist, the Commonwealth must show that the defendant acted with malice.” Malice, however, was not defined.

      . The lead opinion’s conclusion that these two offenses with which appellant was charged involved different mental elements or mens rea, I believe, is incorrect. It seemingly overlooks the provisions of 18 Pa.C.S. § 302(e) which allow that where a provision of the statute, such as that defining recklessly endangering another person, requires recklessness, that element may be met by conduct which is intentional and/or knowing. See also: Commonwealth v. Nay, 281 Pa.Super. 226, 234, 421 A.2d 1231, 1235 (1980).


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    452 A.2d 735
    Nancy SCHWEITZER, Appellant, v. AETNA LIFE AND CASUALTY COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1981.
    Filed Oct. 8, 1982.
    Reargument Denied Dec. 10, 1982.

      Bernadette Barattini, Harrisburg, for appellant.
    Robert Burke McLemore, Harrisburg, for appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

Is a motor vehicle occupant who has been pulled from her vehicle and assaulted entitled to receive benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act? The trial court held that damages caused by the assault could not be recovered and entered summary judgment in favor of Aetna Life and Casualty Company, the no-fault insurance carrier. We affirm.

The facts are not in dispute. On July 13, 1979, Nancy Schweitzer, accompanied by her two children, was operating an automobile in Susquehanna Township. As she drew to a stop at the intersection of Edgemont and Herr Streets, a motorcycle operated by James Joseph Kostelec, Jr. stopped beside her vehicle. Kostelec shouted obscenities at Schweitzer; and, when Schweitzer pulled away from the intersection, he followed on his motorcycle at a dangerously close distance. On several occasions, in fact, the motorcycle ran into and struck the rear bumper of Schweitzer’s vehicle. Schweitzer attempted to elude Kostelec, but her efforts were unsuccessful. Eventually, Kostelec ditched his motorcycle and approached the Schweitzer vehicle on foot. He pulled open the car door, grabbed Schweitzer and pulled her from the vehicle, pushed her back inside the car and beat her with his fist, all while continuing to shout obscenities. Schweitzer was treated at the Emergency Room of Harrisburg’s Polyclinic Hospital for bruises and a sprained wrist. She also suffered psychological difficulties as a result of the incident. All were sustained as a result of the assault. None were attributable to the earlier bumping of the vehicle by the motorcycle. After Aetna had denied a request for no-fault benefits, Schweitzer instituted this action in as-sumpsit. She appealed from the judgment entered in favor of Aetna.

Section 201 of the No-fault Act, 40 P.S. § 1009.201, provides in part: “If the accident resulting in injury occurs in this Commonwealth, any victim ... is entitled to receive basic loss benefits in accordance with the provisions of this act.” “Victim” is defined in Section 103 of the Act as “an individual who suffers injury arising out of the maintenance or use of a motor vehicle ... . ” See: 40 P.S. § 1009.103. The No-fault Act further provides, with limited exceptions not here relevant, that “ ‘[maintenance or use of a motor vehicle’ means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into or alighting from it.” Id.

Appellant contends that her injuries, even though intentionally inflicted by a third party, arose from the use or maintenance of a motor vehicle as a motor vehicle and that she was, therefore, a “victim” within the meaning of the No-fault Act.' We are constrained to disagree.

In Manufacturers Casualty Insurance Co. v. Goodville Mutual Casualty Co., 403 Pa. 603, 170 A.2d 571 (1961), the Supreme Court had occasion, albeit in the context of interpreting an automobile insurance policy, to construe the words “arising out of the ownership, maintenance or use” of an automobile or trailer. The court held: “ ‘[Ajrising out of’ means causally connected with, not proximately caused by. ‘But for’ causation, i.e., a cause and. result relationship, is enough to satisfy this provision of the policy.” Id., 403 Pa. at 607-08, 170 A.2d at 573. See also: Eichelberger v. Warner, 290 Pa.Super. 269, 434 A.2d 747 (1981).

The same construction of the phrase “arising out of the maintenance or use of a motor vehicle” can be applied to the No-fault Act. Thus, while the causal connection need not rise to the level of proximate causation, for purposes of coverage under the No-fault Act there must be some connection, more than mere chance or happenstance, between the injuries sustained and the insured vehicle.

Requiring a causal connection between the injury and the use of the automobile is in keeping with the legislative intent apparent in the “no-fault” scheme of motor vehicle insurance. In enacting the No-fault Act, the legislature sought to provide, at reasonable cost, a statewide system of protection and compensation for individuals injured as a result of motor vehicle accidents, irrespective of fault. 40 P.S. § 1009.102.' An unprovoked, intentional, physical assault upon the driver of an automobile is not within the scope of the protection contemplated by the legislature, which provided that an individual so injured should seek recourse in a common law tort action. 40 P.S. § 1009.-301(a)(3).

A similar approach was utilized by this court in Day v. State Farm Mutual Insurance Co., 261 Pa.Super. 216, 396 A.2d 3 (1978), when required to determine an issue of uninsured motorist coverage. There, Day had sustained injuries in a fistfight which took place on a grass plot between the north and southbound lanes of the Roosevelt Boulevard in Philadelphia. The fight had followed a collision involving appellee’s automobile and a truck driven by a third person. The latter’s liability carrier had denied liability coverage on grounds that Day’s injuries were intentionally inflicted. In denying recovery under Day’s uninsured motorist coverage, this court stated: “The real issue in this case involves the instrumentality used to cause the injury, not whether it was intentionally or accidentally inflicted. Automobile insurance, including uninsured motorist provisions, are designed to compensate victims for vehicle-caused injuries. There must be some connection between the harm done and the insured vehicle .... [Other factors] become[ ] relevant only after a determination is made that the injury complained of was caused by the vehicle. This is, in fact, the meaning of the language ‘arising out of the ownership, maintenance or use of such uninsured motor vehicle ....’” (Citations omitted.) Id., 261 Pa.Superior Ct. at 219-20, 396 A.2d at 5. The injury, a broken ankle, had been caused not by a motor vehicle but by the third person’s knocking down the appellee. A loss so caused was held to be beyond the scope and terms of the uninsured motorist provisions of the Day policy.

An issue similar to that in the instant case was before a panel of this Court in Erie Insurance Exchange v. Eisen-huth, 305 Pa.Super. 571, 451 A.2d 1024 (1982). In that case, a vehicular passenger had been shot by a policeman during pursuit of the vehicle’s driver. Applying the reasoning of Day, the court concluded that the passenger’s presence in the vehicle was not connected causally to his injuries. Therefore, he was not entitled to recover no-fault benefits. Those facts presented a closer question than the facts in the instant case.

Our decision is consistent with decisions in other jurisdictions where analogous claims have been considered under provisions of No-fault statutes. In In the Matter of Manhattan & Bronx Surface Transit Operating Authority, 71 A.D.2d 1004, 420 N.Y.S.2d 298 (1979), aff’d., 98 Misc.2d 657, 414 N.Y.S.2d 489, the New York court considered an assaulted bus driver’s claim for no-fault benefits. The bus driver had been injured when, in the course of his duties as a bus driver, he had been stabbed by a passenger whom he refused to discharge from the bus at a location other than a designated bus stop. Under New York law, no-fault benefits were available to a person whose injuries arose out of the use or operation of a motor vehicle. Acknowledging that the operation of the bus entailed the discharge of passengers at designated locations and that the driver was injured while he was operating a bus, the court nonetheless determined that such facts were “insufficient to establish that the injury resulted from the use or operation of a motor vehicle as contemplated by the no-fault provisions of the Insurance Law.” Id. at 1005, 420 N.Y.S.2d at 299. The court held that, in order for no-fault benefits to. be recoverable, the vehicle itself must actually have produced the injury. This requirement, in the court’s view, “reflected] the limitation of no-fault insurance to automobile torts as distinguished from the other types of tort.. . . [T]he injury resulted from a knife wielding passenger and the appellant’s operation of the bus was largely incidental. The assault may not be characterized as a motor vehicle tort as contemplated by the no-fault insurance law.” Id.

A Michigan court reached a similar result. In O'Key v. State Farm Mutual Automobile Insurance Co., 89 Mich.App. 526, 280 N.W.2d 583 (1979) the plaintiff-appellant sought no-fault benefits from his no-fault carrier for injuries received when he was shot as he sat outside his brother’s home in an idling automobile. As required by Michigan no-fault law, the policy covered injuries “ ‘caused by accident and arising out of the ownership, operation and maintenance or use ... of a motor vehicle.’ ” Id. at 528, 280 N.W.2d at 584. The court affirmed the entry of summary judgment for the insurer, concluding that while the injuries did arise out of an “accident,” they did not arise out of the “ownership, operation, maintenance or use” of the automobile. “ ‘While the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental .... The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle.’ ” Id. at 530, 280 N.W.2d at 585, quoting from Kangas v. Aetna Casualty & Surety Co., 64 Mich.App. 1, 17, 235 N.W.2d 42, 50 (1975). The fact that the plaintiff had been an occupant of a motor vehicle at the time he sustained the injury was held not to be conclusive. The role of the automobile was incidental and in no way connected with the assault. Further, the court concluded, “an assault by an armed assailant upon the driver of a car [is not] the type of conduct that is ‘reasonably identifiable’ with the use of a car.” Id. See also: Stonewall Insurance Co. v. Wolfe, 372 So.2d 1147 (Fla.Dist.Ct.App.1979), cert. denied, 385 So.2d 762 (Fla.1980); Feltner v. Hartford Accident and Indemnity Co., 336 So.2d 142 (Fla.Dist.Ct.App.1976); Mann v. Detroit Automobile Inter-Insurance Exchange, 111 Mich.App. 637, 314 N.W.2d 719 (1981); Detroit Automobile Inter-Insurance Exchange v. Higginbotham, 95 Mich.App. 213, 290 N.W.2d 414 (1980). But see: Weber v. State Farm Mutual Automobile Insurance Co., 284 N.W.2d 299 (N.D.1979).

Applying the reasoning of the foregoing decisions to the instant facts, we conclude that appellant’s injuries did not arise from the use or occupancy of a motor vehicle. Although she had been occupying her automobile before being pulled from it and had been pushed back into it before Kostelec struck her with his fists, her injuries were not causally related to her use or occupancy of a vehicle. When appellant was assaulted, neither she nor her assailant was acting in the role of motorist. Her injuries, therefore, cannot be said to have arisen from the use of a motor vehicle within coverage intended by the No-fault Motor Vehicle Insurance Act.

The judgment is affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, § 101 et seq., 40 P.S. § 1009.101 et seq. (Hereinafter referred to as the No-fault Act.)

      . Criminal charges filed against Kostelec resulted in a conviction of assault, for which Kostelec was sentenced, inter alia, to make restitution to Schweitzer in the amount of $1,200.

      . Act of August 14, 1963, P.L. 909, § 1 as amended December 19, 1968, P.L. 1254, No. 397, § 1, 40 P.S. § 2000.


author: PRICE, Judge:

text:
    452 A.2d 739
    MAR RAY, INC. v. Albert B. STARR and William K. Kerschbaumer, individually and as joint venturers, Appellants.
    Superior Court of Pennsylvania.
    Argued April 15, 1980.
    Filed Nov. 5, 1982.
    Petition for Allowance of Appeal Denied March 30, 1983.

      Edward C. Leckey, Pittsburgh, for appellants.
    Anthony J. Martin, Monroeville, for appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   PRICE, Judge:

This is the second time this mechanic’s lien has been before this court. In Mar Ray, Inc. v. Schroeder, 242 Pa.Superior Ct. 14, 363 A.2d 1136 (1976), we reversed the Court of Common Pleas of Allegheny County and held that the claim by Mar Ray, Inc. (“Mar Ray”), appellee herein, withstood the preliminary objections based on a waiver of lien clause filed by the appellants herein. A jury trial before the Honorable John P. Flaherty followed and a verdict was returned for appellee in the full amount of its claim of $60,848.33. Appellants filed a motion for new trial and a motion for judgment n.o.v., both of which were denied. This appeal followed. We affirm the trial court.

The documentary evidence and recorded testimony of this case reveal a tangled morass of business dealings by appellants regarding the subject property located in the 26th Ward of the City of Pittsburgh known as Village in the Park to which they held a ninety-nine year land lease. Simply stated, on May 21, 1968 appellants contracted with the Arkay Construction Company (“Arkay”) for the construction of an apartment complex on the aforementioned property. A waiver of liens agreement was recorded under this contract in the Office of the Prothonotary of the Court of Common Pleas of Allegheny County. Thereafter, on August 1. 1968, appellee executed a contract with Arkay to perform carpentry work in connection with the project, wherein appellee was designated the “subcontractor” and appellant the “contractor” and wherein appellee agreed to waive its right to lien.

On October 28, 1969, pursuant to the Mechanics’ Lien Law, Act of August 24, 1963, P.L. 1175, No. 497, 49 P.S. 1101 et seq., appellee filed a Mechanic’s Lien claim against appellants. Therein, and in its subsequent complaint incorporating the Mechanic’s Lien Claim, Mar Ray claimed, first, that Arkay was, in fact, controlled and owned by appellants and was used “as an agent, vehicle, or conduit” for the purpose of entering contracts to construct the buildings in Village in the Park and, second, that Arkay abandoned the job on June 15, 1969 at which time Mar Ray completed its carpentry work after receiving the oral promise of .appellant Albert B. Starr to pay Mar Ray any and all sums due it for work and labor performed on the project.

In their first allegation of error, appellants strenuously argue that the admission of evidence and instructions to the jury on the issue of whether Arkay and appellants are a single entity were erroneous because (1) this court’s remand order restricted the trial to the issue of the existence of the oral contract with Starr, and, (2) the trial court acted improperly in instructing the jury on any reliance-related issue.

We cannot agree with appellants that this court’s opinion in Mar Ray, Inc. v. Shroeder, 242 Pa.Superior Ct. 14, 363 A.2d 1136 (1976), restricted the scope of the trial on the merits solely to the issue of whether the lien was filed pursuant to the oral contract with appellant Starr which did not contain a waiver of liens, rather than pursuant to Mar Ray’s original contract with Arkay which did contain such a waiver. We were quite specific in stating that the only issue decided was that Mar Ray’s claim withstood the preliminary objections based on the waiver:

On this appeal, we do not decide the validity of appellant’s [Mar Ray’s] cause of action on the merits, nor do we decide the validity of any defense appellees may have on the merits .... The narrow question decided today is whether appellant’s claim can withstand appellee’s preliminary objections. We have decided the narrow question in favor of the appellant.

Id., 242 Pa.Superior Ct. at 17-18, 363 A.2d at 1137-1138. No singular evidentiary issue was argued before this court or disposed of by this court such that claims or arguments would be waived if not raised as was the case in Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283 (1977). We held only that the lower court erred in dismissing the claim before affording Mar Ray the chance to prove its allegations. Mar Ray, Inc. v. Schroeder, supra. Therefore, we hold that admission of evidence regarding the relationship between appellants and Arkay was not error on this ground.

Nor can we agree that the trial court’s charge to the jury pertaining to the issues surrounding appellee’s reliance on Arkay’s recorded no-lien agreement was so prejudicial as to require a new trial. Assuming, arguendo, that the submission of the evidence on a reliance theory was error, the charge also instructed the jury under the theory of a second contract which defendants concede was proper. In determining whether or not prejudicial error has occurred in the instructions of a court to a jury, the entire charge must be read. James v. Ferguson, 401 Pa. 92, 97, 162 A.2d 690, 693 (1960); Buchecker v. Reading Co., 271 Pa. Superior Ct. 35, 53, 412 A.2d 147, 156 (1979); Hajduk v. Fague, 200 Pa. Superior Ct. 55, 62, 186 A.2d 869, 873 (1962). We find that the lower court properly instructed the jury on the oral contract between Mar Ray and appellant Starr in accordance with the evidence pertaining thereto so as to sustain the findings of the jury despite any possible error in the charge relating to reliance issues.

The court’s instructions were consistent with the rule that when the evidence is conflicting as to whether a new contract has been made, relative to the filing of a mechanic’s lien, the case is for the jury to determine whether such a new contract was made. John B. Kelly, Inc. v. Phoenix Plaza, Inc., 249 Pa. Superior Ct. 413, 378 A.2d 363 (1977); Pagnacco v. Faber, 221 Pa. 326, 70 A. 754 (1908); Spring Brook Lumber Co. v. Watkins, 26 Pa. Superior Ct. 199 (1904). Judge Flaherty charged:

... [0]ne of the [questions] that you will . .. determine [is] whether the alleged second contract was, in fact, a new, wholly and distinct contract and independent contract. What [were] the contents of that contract[?] What was the understanding of the parties relating to that contract if, in fact, there was such a contract .... If it was merely a promise to pay if Arkay did not pay, then that would not be lienable. If, on the other hand, it was a new, wholly distinct contract, an independent contract between Mar Ray and Mr. Starr then it would be your function to determine the contents of that contract, if such as there be one [containing] a waiver of liens and you would have to consider all of the evidence you have heard to determine such was in fact the case.

(R. 613a-614a).

In considering a motion for judgment n.o.v., the evidence, together with all reasonable inferences therefrom, is considered in the light most favorable to the verdict winner. Chambers v. Montgomery, 411 Pa. 339, 341, 192 A.2d 355, 356 (1963). Viewed in this light, the evidence weighs considerably in favor of the appellees. At the time of the second contract Arkay was already four to five months behind in payments to Mar Ray and appellants themselves were having great difficulty in their attempts to communicate with Arkay’s president. (R. 296a). Mar Ray’s president testified that he could not have kept his crews on the job but for the promise he received from appellant Starr. (R. 304a). Furthermore, evidence concerning appellants’ heavy financial investment in the project along with evidence of their close relationship with Arkay lent credence to appellee’s argument that appellant Starr had a tremendous personal stake in persuading Mar Ray to return to work and in having the project completed by September 1. We are unable , to say, therefore, that the jury could not have found a valid mechanic’s lien based on Mar Ray’s agreement with appellant Starr to be compensated for all sums due it for labor performed on the project.

Finally, appellants argue that they are entitled to a new trial because the president of Mar Ray testified falsely at trial in his denial that the words “payment in advance for work from July 7 to completion of contract as per Arkay Const. Co. Inc.” appeared on a check at the time of its receipt from Starr on July 2, 1969.

Appellants claim that because they “did not anticipate . . . false testimony ... on a point such as this where indisputable documentary proof is always available,” brief for appellants at 45, they did not have the bank’s copy of the check ready to produce at trial. However, after trial appellants did request and receive the bank’s copy of the check verifying that the disputed writing was present on the check when delivered to Mar Ray.

In support of their argument for new trial, appellants cite cases granting the motion where a party or witness has willfully and admittedly perjured essential testimony, Blake v. Marinelli, 357 Pa. 314, 53 A.2d 550 (1947) (per curiam); Kuzma v. Kuzma, 191 Pa. Superior Ct. 295, 156 A.2d 884 (1959), or where evidence of the perjury was not in existence until after trial and such evidence was factually compelling so as to justify a new trial. McCabe v. Pa. Railroad Co., 311 Pa. 229, 166 A. 843 (1933).

The circumstances of the case now before us, however, are not sufficiently similar to these cases to dissuade us from applying the rule in Hornick v. Bethlehem Mines, Corp., 310 Pa. 225, 228, 165 A. 36, 37 (1933):

It is well established that in order to grant a new trial on the basis of after-discovered evidence, the evidence must have been discovered since the trial and be such as could not have been obtained at the trial by the use of reasonable diligence; it must not be simply cumulative or merely to impeach the credibility of the witness.

In addition, the granting or refusal of a new trial based on after-discovered evidence is an area addressed to the sound discretion of the court and the exercise of this discretion by the court will be reversed only where it has been clearly abused. Helmig v. Rockwell Manufacturing Co., 389 Pa. 21, 131 A.2d 622 (1957), cert. den. 355 U.S. 832, 78 S.Ct. 46, 2 L.Ed.2d 44, reh. den. 355 U.S. 885, 78 S.Ct. 146, 2 L.Ed.2d 115; Hornick v. Bethlehem Mines Corp., supra.

Obviously, Judge Flaherty felt that if this evidence was as crucial to appellants’ case as they now submit, they most certainly could have and should have gathered their best evidence of this writing during the several years prior to trying this lawsuit. The refusal of a new trial on this ground was a proper exercise of discretion by the trial court and we, therefore, dismiss appellant’s allegation of error.

Because we can find no reversible error in the trial court’s order of May 30, 1979 refusing appellants’ motion for new trial and judgment n.o.v., we affirm.

      . There is some confusion in the mind of counsel for appellee as to the year in which this trial took place. Although the transcript of testimony is dated May 25, 1976, this appears to be erroneous, as the entry on the docket dates the trial in 1977.

      . The Mechanic’s Lien Claim was also filed against the fee simple interest in the property. No appeal was taken from the order striking the lien against that interest.

      . Appellants argue that the facts surrounding the date of the promise from Starr are stated in contradictory terms by appellees. It is true that appellee’s president testified that this promise was actually given to him at a meeting on May 14, 1969 after Arkay’s repeated failure to meet its contractual obligations. (R. 297a-299a). During his testimony at trial appellee’s president explained the discrepancy in the Mechanic’s Lien Claim as a misprint. (R. 330a).

      . Mar Ray asserts §§ 402 and 407 of the Mechanics’ Lien Law of 1963, 49 P.S. §§ 1402, 1407, which provides that although a general contractor’s written waiver of the right to file liens is binding upon all subcontracters provided it is properly recorded, such waiver shall have no effect as to third party subcontractors if the contractor is not intended in good faith to be an independent contractor but is in reality an agent of the owner. See, Stringert & Bowers, Inc. v. On-Line Systems, Inc., 236 Pa. Superior Ct. 196, 345 A.2d 194 (1975).

      . We agree with Judge Flaherty below that our use of the word “allegations” was in its generic sense rather than linked to any specific allegation. (R. 285a).

      . Appellants contend that the court below erred in denying their motion for judgment n.o.v. because appellee’s president admitted that his agreement with Albert Starr was an oral guarantee and not a new and independent contract. This alleged admission was an affirmative response to a question on cross-examination by appellant’s counsel: “But you knew that if Arkay didn’t pay you after May 14, Albert Starr would?” (R. 334a). However a previous statement on cross examination by the same witness (“I wanted paid for everything I had done which he promised and he would pay me,” (R. 333a).) together with the other evidence concerning the circumstances surrounding the second contract created a disputed question of fact properly submitted to the jury for their interpretation. Spring Brook Lumber Co. v. Watkins, 26 Pa. Superior Ct. 199 (1904).

      . Appellants argue that the lower court erred in denying their motion for withdrawal of a juror because the evidence pertaining to the financing of the project was irrelevant and prejudicial. We agree with the lower court and appellee that this evidence was relevant to the totality of the circumstances surrounding the second contract including the situations of the parties which gave rise to the necessity of the second contract. None of this evidence appears to have been so prejudicial to appellants that its admission constituted a clear abuse of the trial court’s discretion. Gilligan v. Shaw, 441 Pa. 305, 307, 272 A.2d 462, 464 (1971), Chambers v. Montgomery, 411 Pa. 339, 341, 192 A.2d 355, 356 (1963).

      . Appellant also cites as error the trial court’s refusal to charge the jury that under the second contract appellee was entitled to lien only for work done on or after the date of the oral promise. We are unconvinced that the cases cited by appellant compel such a direction as a matter of law. The subcontractor in Pagnacco v. Faber, 221 Pa. 326, 70 A. 754 (1908) may only have claimed for work done after his new contract with the new owner of the building, but the case does not hold that such a contract may not include payments for work previously done by the subcontractor if such a claim is made and is supported by the evidence. In Waters v. Wolf, 2 Pa. Superior Ct. 200 (1896), this court did hold that a waiver of a no-lien agreement may not be readily inferred, but in that case, there was no evidence that the lien was filed after and not before the purported waiver. Such is not the case here. The controlling rule remains that the contents of an oral contract are a jury question.


text:
    452 A.2d 743
    John J. BROGLEY and Mary Ann Brogley, his wife, Appellants v. CHAMBERSBURG ENGINEERING COMPANY, a corporation, v. JONES & LAUGHLIN STEEL CORPORATION.
    Superior Court of Pennsylvania.
    Submitted Aug. 31, 1981.
    Filed Nov. 5, 1982.

      William Berger, Pittsburgh, for appellants.
    Michael W. Burns, Pittsburgh, for Chambersburg, appel-lee.
    John E. Kunz, Pittsburgh, for Jones, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   WIEAND, Judge:

John J. Brogley, a blacksmith employed by Jones & Laughlin Steel Corporation, was injured in an industrial accident on December 12, 1973, when a die flew off the ram of a steam hammer. The steam hammer had been manufactured by Chambersburg Engineering Company and sold to Jones & Laughlin in May, 1930, more than forth-three years before the accident. An action in trespass was commenced against Chambersburg Engineering on the grounds that the tapered key assembly by which the die was attached to the ram had been defectively designed. Chambersburg Engineering caused Jones & Laughlin to be joined as an additional defendant on the grounds that the steam hammer had been negligently maintained and the original design altered. The case was tried before a jury which returned a verdict in favor of Brogley for $25,000 against Jones & Laughlin alone. Because Brogley could not recover damages against his employer, the trial court molded the verdict in favor of defendant. Post-verdict motions were denied, judgment was entered on the verdict, and Brogley appealed. We affirm.

Brogley had the burden of establishing at trial that the steam hammer was defective, that the defect was the cause of his injuries, and that the defect had existed at the time the product entered the market. See: Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 93-94, 337 A.2d 893, 898 (1975); Kuisis v. Baldwin-Lima-Hamilton Corporation, 457 Pa. 321, 331-332, 319 A.2d 914, 921 (1974); Smialek v. Chrysler Motors Corporation, 290 Pa.Super. 496, 501, 434 A.2d 1253, 1256 (1981); Gill v. McGraw Electric Company, 264 Pa.Super. 368, 378, 399 A.2d 1095, 1100-1101 (1979); Cornell Drilling Company v. Ford Motor Company, 241 Pa. Super. 129, 135-136, 359 A.2d 822, 825 (1976). Chambers-burg contended, however, that there had been no defect in the design or manufacture of the steam hammer and that the accident had occurred because Jones & Laughlin had negligently substituted an improperly fitting key and had failed to inspect and discover the dangerous condition which had thus been created. To support this contention and to establish the general duty of care required of an employer, Chambersburg offered in evidence and the trial court received, over objection, an OSHA regulation which required employers to “maintain all forging equipment in a condition that would insure continued safe operation.” Appellant contends that this was error.

Although the courts of this state have not had occasion to rule on the admissibility of OSHA regulations as evidence of negligence, they have uniformly held admissible other safety codes and regulations intended to enhance safety. See: Groh v. Philadelphia Electric Company, 441 Pa. 345, 349-350, 271 A.2d 265, 267 (1970); Janowicz v. Crucible Steel Company of America, 433 Pa. 304, 307-308, 249 A.2d 773, 775 (1969); Heck v. Beryllium Corporation, 424 Pa. 140, 226 A.2d 87 (1966); Skoda v. West Penn Power Company, 411 Pa. 323, 330, 191 A.2d 822, 826 (1963); Kuisis v. Baldwin-Lima-Hamilton Corporation, supra 457 Pa. at 330, 319 A.2d at 920; Lambert v. PBI Industries, 244 Pa.Super. 118, 132, 366 A.2d 944, 951 (1976); Burke v. Duquesne Light Company, 231 Pa.Super 412, 416-417, 332 A.2d 544, 545-546 (1974); Berkebile v. Brantly Helicopter Corporation, 219 Pa.Super. 479, 484, 281 A.2d 707, 710 (1971). See also: Bunn v. Caterpillar Tractor Company, 415 F.Supp. 286, 292-293 (W.D.Pa.1976), aff’d, 556 F.2d 564 (1977), cert. denied, 434 U.S. 875, 98 S.Ct. 224, 54 L.Ed.2d 154 (1977); Restatement (Second) of Torts, § 285. The courts of other states which have considered the issue, moreover, have held that OSHA regulations are admissible as a standard of care, the violation of which is evidence of negligence. See: Kelley v. Howard S. Wright Construction Co., 90 Wash.2d 323, 336, 582 P.2d 500, 508 (1978); Koll v. Manatt’s Transportation Co., Iowa, 253 N.W.2d 265, 269-270 (1977); DiSabatino Brothers, Inc. v. Baio, Del., 366 A.2d 508 (1976); Dunn v. Brimer, 259 Ark. 855, 537 S.W.2d 164 (1976); Buhler v. Marriott Hotels, Inc., 390 F.Supp. 999 (E.D.La.1974); Arthur v. Flota Mercante Grain Centro Americana S.A., 487 F.2d 561 (5th Cir.1973), reh. denied, 488 F.2d 552 (5th Cir.1974). See also: Anno., Violation of OSHA Regulation as Affecting Tort Liability, 79 A.L.R.3d 962 (1977). In the instant case, we conclude that the trial court did not err in receiving an OSHA regulation to show the employer’s duty of care.

Appellant also contends that it was error to permit Eugene Clarke, Jr., Chambersburg’s expert witness and employee, to testify that an improperly fitted key had been substituted by Jones & Laughlin and was the direct cause of the accident. This, he contends, was an opinion not contained in a pre-trial report submitted to appellants during a pre-trial conference held pursuant to Pa.R.C.P. 212. The admission of expert testimony is a matter within the sound discretion of the trial court, whose rulings thereon will not be reversed absent a manifest abuse of discretion. Laubach v. Haigh, 433 Pa. 487, 491, 252 A.2d 682, 683 (1969); Kubit v. Russ, 287 Pa.Super. 28, 34-35, 429 A.2d 703, 706 (1981); Junk v. East End Fire Department, 262 Pa.Super. 473, 492, 396 A.2d 1269, 1278 (1978); Hussey v. May Department Stores, Inc., 238 Pa.Super. 431, 435, 357 A.2d 635, 637 (1976). There was no abuse of discretion in the instant case.

The report prepared by Clarke and furnished to appellant reviewed technical data regarding the interference joint between the ram and die as originally designed and manufactured by Chambersburg and as the joint appeared on August 25, 1976 and July 26, 1978 when Clarke examined the steam hammer. He summarized his findings and conclusions as follows: “It is concluded that the ram-to-die joint originally employed by Chambersburg was a proper and safe arrangement; that the addition of a bolt and nut to the key does not enhance the safety of this arrangement; and that at the time of the accident an improper key and shims were being employed to secure the die to the ram which became the proximate cause of the accident.” The trial court concluded, and we agree, that Clarke’s trial testimony ws consistent with the conclusions contained in his report. There was no error in permitting the witness to testify that the improperly fitted key substituted by Jones & Laughlin for the one originally inserted by the manufacturer had been the direct cause of the accident. The decision in Gill v. McGraw Electric Company, supra, upon which appellant relies, is not apposite. In that case the party seeking to call the expert witness at trial had not provided opposing counsel with either the name of the witness or a copy of his report despite a pre-trial order directing such disclosure.

Appellant’s averment that the trial court’s jury instructions contained error is equally without merit. When reviewing an allegation of error in the court’s charge, we must “look to the charge in its entirety, against the background of the evidence in each case, in order to determine whether an error was committed and whether any prejudice resulted.” Jacob Kline Cooperage, Inc. v. George W. Kistler, Inc., 286 Pa.Super. 84, 89, 428 A.2d 583, 586 (1981). Accord: McCay v. Philadelphia Electric Co., 447 Pa. 490, 499, 291 A.2d 759, 763 (1972); Mount v. Bulifant, 438 Pa. 265, 270, 265 A.2d 627, 630 (1970); Whitner v. Lojeski, 437 Pa. 448, 454, 263 A.2d 889, 892 (1970); Smith v. Chardak, 291 Pa.Super. 173, 175, 435 A.2d 624, 625 (1981); Slavish v. Ratajczak, 277 Pa.Super. 272, 274, 419 A.2d 767, 768 (1980); Albert v. Alter, 252 Pa.Super. 203, 217, 381 A.2d 459, 466 (1977).

The trial court charged generally that it was for the jury to determine whether the design had been defective. It also charged that the jury could consider evidence of wide use of the same design by other manufacturers at the time of manufacture of the steam hammer as evidence that the design had not been defective. This was a correct instruction. It was not error to fail to charge, as appellant requested, that general use of a certain design in an industry does not excuse a manufacturer from liability.

Also, it was not error to refuse an instruction that the jury should not calculate damages if they found Jones & Laughlin alone liable. Prior to the 1974 amendment to the Workmen’s Compensation Act, “[A]ny non-employer defendant who [was] the joining party [might] allege the sole liability of the additional defendant employer, and ha[d] the concomitant right to an instruction to that effect, if the evidence he. produce[d] justifie[d] such instruction. This [was] equally as true in the situation . . . where the additional defendant ha[d] the defense of workmen’s compensation but [could] not raise it at trial against the original plaintiff.” Burke v. Duquesne Light Company, supra 231 Pa.Super, at 419-420, 332 A.2d at 547 (emphasis supplied). See also: Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 355, 414 A.2d 100, 105 (1980); Winters v. Herdt, 400 Pa. 452, 455, 162 A.2d 392, 393 (1960); Hinton v. Waste Techniques Corporation, 243 Pa.Super. 189, 195, 364 A.2d 724, 727 (1976). The defense of workmen’s compensation could not properly have been raised during the instant trial. McIntyre v. Strausser, 365 Pa. 507, 76 A.2d 220 (1950). However, the fact of workmen’s compensation did not affect the right of the defendant to try its case in negligence and to have the trier of fact determine which, if any, defendant was negligent. Burke v. Duquesne Light Company, supra 231 Pa.Super. at 420, 332 A.2d at 547. The trial court did not err by rejecting appellant’s attempt to suggest to the jury indirectly the fact that the payment of workmen’s compensation prevented recovery of a verdict returned against appellant’s employer alone. See: Socha v. Metz, 385 Pa. 632, 640, 123 A.2d 837, 841 (1956); McIntyre v. Strausser, supra; Hinton v. Waste Techniques Corporation, supra.

The trial was fairly and correctly conducted, and the judgment, therefore, is affirmed.

      . The joinder of an employer is barred by Section 303(b) of the Workmen’s Compensation Act of December 5, 1974, P.L. 782, No. 263, 77 P.S. § 481(b), only where the accident occurred after February 5, 1975, the effective date of the Act.

      . Jones & Laughlin appealed also, but solely to protect its rights in the event Brogley were to be awarded a new trial.


author: SPAETH, Judge:

text:
    452 A.2d 747
    COMMONWEALTH of Pennsylvania v. Patricia MONVILLE, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1982.
    Filed Nov. 12, 1982.

      Theodore Simon, Philadelphia, for appellant.
    David M. McGlaughlin, Assistant District Attorney, Nor-ristown, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   SPAETH, Judge:

This is an appeal from judgment of sentence for retail theft. Appellant argues that the evidence was insufficient to sustain the conviction. We agree. Accordingly, the judgment of sentence is reversed and appellant ordered discharged.

The Commonwealth’s only witness was John J. McConnell, the Inspector of Security at the John Wanamaker Store at which the incident in question occurred. Appellant testified in her own defense, and gave an entirely innocent explanation of the incident, but since at this stage the Commonwealth is entitled to have the evidence regarded in the light most favorable to it, Commonwealth v. Crowson, 488 Pa. 537, 412 A.2d 1363 (1979); Commonwealth v. Vogel, 468 Pa. 438, 364 A.2d 274 (1976), we shall for the moment ignore appellant’s testimony—we do wish to discuss it later-—and shall refer only to Mr. McConnell’s.

Mr. McConnell’s direct testimony—all of it-—was as follows:

BY MR. SILOW [the assistant district attorney]:
Q. Mr. McConnell, I would like to direct your attention to November 25, 1980. Whom were you employed by? [In fact the incident occurred on October 25, 1980.]
A. John Wanamaker.
Q. And in what capacity, sir?
A. Inspector of security.
Q. Now, directing you back to November 25, 1980, did you have occasion to come into contact with the defendant?
A. Yes.
Q. Is she in the courtroom today?
A. She is, indeed.
Q. Can you identify her, please, for the record?
A. The young lady sitting right there. (Indicating.) MR. SILOW: Can we agree that he has identified the defendant?
MR. SIMON: Yes.
MR. SILOW: Very well.
BY MR. SILOW:
Q. Mr. McConnell, what was the nature of your contact with the defendant? In other words, what happened when you came in contact?
A. Well, I noted this young lady at that time it was a hosiery department and it appeared to me that she had a bag with some—could be clothing or something underneath her left arm. She was looking at some merchandise against the wall, hanging on the wall. And I did not know whether—as it developed later she was comparing as far as color was concerned.
However, I looked upon it as something suspicious and I was watching her. At that point John Campbell came up who was a cohort of mine and we watched her together.
And she went from there to a rack on the floor that had hosiery on it. She removed some hosiery and then walked across the store towards a wall on the other side of the building. All along she had this hosiery in her hand. She did not conceal it.
And I went over there the other way and I lost her for a second and then I did see her later on—well, a minute or so later in that section.
Now, I must point out at this point that she did have a Strawbridge & Clothier bag and it was quite prominent because it is yellow and black as I remember it. Now I could not see what she had done with the hosiery.
BY THE COURT:
Q. Just get down to what happened.
A. But I did see her take an umbrella from a display rack and put it in her bag, in the Strawbridge and Clothier bag. At that point John Campbell came up and—well, she started towards the front door and at that point John Campbell came up and escorted her back to the security office.
That was my involvement.
MR. SILOW: I have no further questions of this witness.
THE COURT: Cross-examine.
N.T. 4r-6.

Sometimes on cross-examination a witness gives answers that fill in gaps remaining after direct, but that didn’t happen here. On cross, Mr. McConnell said again that appellant did not conceal the hosiery. N.T. 5. Generally, he said very little else. He recalled that it was raining. N.T. 8. He lost sight of appellant for awhile and did not see whether she stopped at the glove department, N.T. 9, or whether she dropped any items on the floor and bent down to pick them up, N.T. 10, or what, besides the hosiery, she was carrying, N.T. 10-11. He said that he “thought she was putting the merchandise in the bag,” N.T. 11, but he didn’t identify what “merchandise” he meant, and when asked, “But she never did that [put it in the bag]?”, he answered, “No, she did not.” N.T. 11.

In holding this evidence sufficient, the lower court said:

The circumstantial evidence in this case was the observation that in this Wanamaker store defendant took hosiery from a stack, passed by several departments, then removed an umbrella from a display rack and put the same in her Strawbridge & Clothier bag. This concealment was sufficient to raise the statutory presumption of 18 Pa.C.S.A. 3929(c), quoted supra.
Slip op. at 4 (emphasis in original).

The statute the court refers to provides that “[a]ny person intentionally concealing unpurchased property of any store ... on the premises .. . shall be prima facie presumed to have so concealed such property with the intention of depriving the merchant of ... such merchandise without paying the full retail value thereof . .. . ”

But there was no evidence of “concealment.” Mr. McConnell only said, “But I did see her take an umbrella from a display rack and put it in her bag, in the Strawbridge & Clothier bag.” N.T. 6. He did not say how big the bag was; nor that the bag was ever closed; nor that the umbrella was ever out of his sight.

We had a similar case in Commonwealth v. Bonn, 244 Pa.Super. 315, 368 A.2d 738 (1976). There a security guard saw the appellant “place a packaged bra in her purse.” Id., 244 Pa.Superior Ct. at 316, 368 A.2d at 739. “She then placed the open purse in the seat part of the shopping cart, which contained other merchandise she had selected, and continued her shopping.” Id. A short time later, while still in the store, she was arrested. “The security guard testified he could see the package with the price tag intact in the top of the purse when he approached appellant. The open purse had a broken zipper and could not be closed and the package in the purse was not covered by anything.” Id., 244 Pa.Superior Ct. at 318, 368 A.2d at 740. We held that this evidence “did not sufficiently establish that the property was concealed,” id., and that therefore the statutory presumption of intention not to pay never came into effect.

We see no basis on which this case and Bonn can be distinguished. Indeed, the evidence here was more insufficient than it was in Bonn. All we know is that appellant “put” the umbrella “in her bag.” The plain inference is that the umbrella continued to stick out of the bag, and therefore, continued to remain visible—a good deal more visible than was the packaged bra in the appellant’s purse in Bonn.

We said at the beginning that we wished to discuss appellant’s testimony. We do because it emphasizes the insufficiency of the Commonwealth’s case.

At the time of the trial, in June 1981, appellant was 31 years old. N.T. 14. On the day of the incident in question, October 25, 1980, when she was arrested, appellant was a school teacher. She also worked one day a week as a flower arranger at the John Wanamaker store where she was arrested. N.T. 14r-15. Since her arrest, appellant has not been permitted to work for the school district. N.T. 15.

On October 25th, appellant was to attend the wedding of a good friend. N.T. 15. She realized that morning that she had no stockings to go with the outfit she was going to wear to the wedding. She therefore put the skirt she was going to wear to the wedding in a paper bag and went to Wanamaker’s to buy stockings that would match it. N.T. 15-16. The Strawbridge & Clothier bag that Mr. McConnell, the security officer, referred to was the bag she put her skirt in. Id. She was also carrying the tools she used in making flower arrangements. N.T. 17. On the way to Wanamaker’s she stopped at the drug store. It had started raining heavily, and by the time she got to Wanamaker’s she was soaked. Id.

At the hosiery department appellant took her skirt out of the bag and held it up to compare its color with several different stockings. N.T. 18. She then went to get an umbrella; she “assumed that the weather would continue and [she] did not want to get all dressed up and then [get] wet—.” N.T. 19. On the way to the umbrella department she saw some gloves of the color she wanted, so she got the gloves and continued on to the umbrella department. Id. She selected one umbrella but it was “quite expensive.” She therefore looked at others, but she wasn’t sure of the difference in price. N.T. 21. Turning to someone to try to find out the umbrella prices, she dropped her various packages. By this time it was about 11:45 and she was rushing, for she was supposed to be picked up for the wedding at 12:30. N.T. 22-23. She got out her charge card and also some cash—she preferred to charge but she was not sure whether her charge card was still effective for she had not used it for the past six months, N.T. 25—and, she testified,

I took the stockings and one umbrella that I could not manage and I put them 'in the bag. I had another umbrella and a pair of gloves in my hand as well as my raincoat and the bag that I had my skirt in.
As I stood up and started to walk towards the counter and I had almost not really begun to move the man grabbed me by the arm and said—
N.T. 23-24.

None of appellant’s testimony was contradicted; and all of it was consistent with Mr. McConnell’s testimony. To be sure, the trial judge could still reject appellant’s testimony—and his verdict shows that he did. But rejecting it doesn’t save the Commonwealth’s case. For a conviction must be based on more than mere suspicion or conjecture, Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973), and when the evidence is as consistent with innocence as it is with guilt, a conviction may not stand, Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976). In Commonwealth v. Bonn, supra, we said:

When the presumption [the statutory presumption of intention not to pay] is not available, guilt may still be proved by other evidence including circumstantial evidence. But here, without the use of the presumption there was no other evidence of appellant’s intent.
Id. 244 Pa. Super, at 319, 368 A.2d at 741.

The same may be said here.

The judgment of sentence is reversed and appellant ordered discharged.

      . 18 Pa.C.S.A. § 3929.

      . Appellant also argues that it was error for the trial judge to refuse to allow her to present evidence of her reputation for honesty. We need not address that issue.


text:
    452 A.2d 750
    COMMONWEALTH of Pennsylvania v. Claude V. FALKENHAN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1982.
    Filed Nov. 15, 1982.
    Petition for Allowance of Appeal Denied March 18, 1983.

      Richard S. Levine, Pittsburgh, for appellant.
    Leo M. Stepanian, Assistant District Attorney, Butler, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   SPAETH, Judge:

This appeal is from a judgment of sentence for direct criminal contempt. The sentence was that appellant be committed to the county prison until he paid a fine of $1000. Appellant argues: (1) that the evidence was insufficient to support a conviction of direct criminal contempt; (2) that in imposing summary punishment, the lower court abused its discretion; (3) that the lower court should have recused itself; and (4) that the sentence was manifestly excessive. We are not persuaded by the first three arguments, but we are by the last. We therefore affirm the conviction of direct criminal contempt but vacate the sentence and remand for resentencing.

Appellant is an attorney. On December 8, 1980, he was representing one James D. McDeavitt at a hearing before the lower court. The hearing started as follows:

THE COURT: Very well, this is the time fixed for hearing on the charge that James D. McDeavitt committed an indirect criminal contempt by violating the conditions of the order of October twenty-seven, nineteen eighty, entered under the Protection from Abuse Act.
You may call your witness.
MR. FOLAN: Thank you, Your Honor. Mr. McDeav-itt—
THE COURT: Well, we don’t seem to have the defendant in court.
MR. FALKENHAN [appellant]: Right here he is, Your Honor.
THE COURT: He may move up.
MR. FALKENHAN: We decline, Your Honor, thank you.
THE COURT: What is that?
MR. FALKENHAN: I say we decline.
THE COURT: You decline for what reason?
MR. FALKENHAN: Without going on the record of these proceedings, I and James McDeavitt doesn’t—the order under which this hearing is called this afternoon is on appeal. The appeal was perfected this morning with the Prothonotary.
THE COURT: We will excuse the children from the courtroom.
MR. FOLAN: Notice of appeal was filed some time ago. I have no reason to believe the supersedeas was granted.
THE COURT: The court—there has been no application for supersedeas. The court has granted no supersedeas. We will excuse the children from the courtroom.
This is totally contemptible, inexcusable, Mr. Falkenhan, to bring those children into this courtroom.
MR. FALKENHAN: As a separate record I will demand that if you—
(Mr. Falkenhan continues to speak at the same time as the court.)
THE COURT: This is totally incomprehensible to this court, and I want that noted on the record. The defendant James D. McDeavitt will be seated at the counsel table. Let the record show that Attorney Falkenhan—Sit down. Sit down, Mr. Falkenhan.
MR. FALKENHAN: No, I will not, Your Honor, respectfully. I have my client’s liberty to defend. He does not and I as counsel do not participate in these proceedings. You may do what you will, but if he moves forward to the bar it is under the force and .compulsion of the law, physical force. And when he does, he does because you drag him and not because he participates in these proceedings.
THE COURT: Let the record show that Attorney Falk-enhan has directed his client not to appear at the bar of this court as a participant in these proceedings.
Very well, gentlemen, place Mr. McDeavitt at the counsel table.
All right, Mr. Falkenhan, there will be no comments from you aside during this hearing. If you have remarks, you will address them to the court.
MR. FALKENHAN: I assure the court if I have remarks intended to address the court I will do so, Your Honor.
THE COURT: You will not from the position you are in now. You will be silent throughout the entire proceeding.
Mr. McDeavitt, are you represented by counsel?
Mr. Falkenhan, I told you to be quite [sic].
MR. FALKENHAN: I will defend the liberty of my client. And I will instruct him from here and I will not move forward to the bar of your court lest that implicate voluntary participation in this action. I have the liberty of my client to defend, and I will do so, Your Honor.
THE COURT: I told you you were not to address the court from that position. You will come to the bar of the court.
MR. FALKENHAN: Say nothing at all, ever, Jim.
THE COURT: Did you record that remark?
COURT REPORTER: Yes.
THE COURT: Be seated.
N.T. 1-6.

The hearing continued in this fashion. Finally, the following occurred:

THE COURT: If you wish to—if you wish to represent Mr. McDeavitt in this hearing today you will be seated at counsel table.
MR. FALKENHAN: No, I don’t, he and I are not participants. I represent Mr. McDeavitt in this action and my representation of this advice I give to him in this action is that he should not participate in the hearing called this afternoon in this court in this action.
THE COURT: Very well, then, we will excuse you from the court room.
MR. FALKENHAN: Thank you.
THE COURT: Mr. McDeavitt, this is a criminal proceeding. You have a right to be represented by counsel. If you are without counsel and without funds to employ counsel, upon application to the court, the court will appoint an attorney to represent you in these proceedings.
MR. FALKENHAN: I instruct you—(Mr. Falkenhan continues to speak at the same time as the court.)
THE COURT: I have excused you from the court room, Mr. Falkenhan.
MR. FALKENHAN: I instruct my client—
THE COURT: You will leave the court room, Mr. Falkenhan. You will be taken into custody.
MR. FALKENHAN: I instruct you not to answer any question and to assent to any question asked to you that it could be a violation—
THE COURT: The court finds Claude V. Falkenhan in contempt of this court. Take him into custody in the courtroom here until the court determines what to do with him.
N.T. 12-13.

The court then took a recess. Immediately before recessing, the court advised Mr. McDeavitt of his right to be represented by an attorney, and told him that if he could not afford an attorney, the court would appoint one. When the court asked Mr. McDeavitt whether he understood, Mr. McDeavitt refused to answer.

After the recess, the following occurred:

THE COURT: Now you can proceed.
MR. FALKENHAN: I believe Your Honor had asked a question.
THE COURT: Do you wish to make a statement before sentence is imposed?
MR. FALKENHAN: Yes, I do. My first statement is sentence will be highly improper, in error at this time. My second is that if you charge me with anything I demand a full and complete statement of what it is you charge me with. My third is that I demand adequate time to prepare my defense. My fourth is that I demand my liberty in the meantime.
And I remind you in the order of court as spoken of in the judicial code section I think you have before me—or before you—I remind you that you must demonstrate that I had in fact interfered with the process of court if you even intend to charge me with summary criminal contempt. But I demand of you what it is—I demand through my advice and participation in counseling Jim McDeavitt this afternoon a statement of the charges against me, those and the opportunity to be heard. And I demand a jury trial of my peers because you have criminal contempt in mind. I can only-—or at least I am entitled to suspect that because it carries the weightier penalties— until you tell me what it is in fact you charge me with. I remind you also that I remain entitled to bail if you impose any sentence and punishment.
And I demand that, and more generally I demand all of what you know in your capacity as judge to be the criminal procedural rights, the criminal procedural rights in any charge against me and of every United States citizen and every Pennsylvania citizen.
THE COURT: The record speaks for itself, Mr. Falken-han. Your conduct in the court this afternoon has been contemptuous. You have interfered with the process of the court. You have instructed your client to sit in the courtroom but not take his position at the bar of the court. You continued to conduct conversations with your client and others in the courtroom. You have interrupted the court. The record, the entire record speaks for itself.
The sentence of court is that you pay a fine of one thousand dollars for the use of the Commonwealth of Pennsylvania. You are committed to the Butler County Prison until such time as the fine has been paid.
MR. FALKENHAN: I demand to know how—
THE COURT: At such time as the fine is paid you will be discharged.
MR. FALKENHAN: I will pay you no fine because if I pay your fine I alleviate my demand. Instead I demand to know what amount of bail will secure my liberty. I remind you that I have the right to bail, and I remind you that if you attempt to deny bail you must state on the record your reasons for denying me bail. I demand to know my bail.
THE COURT: The court fixes bail in this matter at one thousand dollars.
MR. FALKENHAN: Thank you, Your Honor.
N.T. 14-16.

The court then again advised Mr. McDeavitt of his right to be represented by counsel. Mr. McDeavitt again refused to answer whether he understood. The court then heard testimony from Mr. McDeavitt’s wife, Gail E. McDeavitt, to the effect that despite an order by the lower court, Mr. McDeavitt had not refrained from physically abusing or threatening her. When asked whether he wished to cross-examine his wife, and later, whether he wished to argue to the court, Mr. McDeavitt refused to answer. The court found Mr. McDeavitt in contempt, and imposed sentence and entered various other orders, the substance of which need not be stated here as they are not before us.

-1-

“Direct criminal contempt consists of misconduct in the presence of the court or misconduct so near thereto as to interfere with the immediate business of the court or disobedience to the lawful process of the court. Commonwealth v. Marcone, 487 Pa. 572, 579, 410 A.2d 759, 762-63 (1980).” In the Matter of Campolongo, 495 Pa. 627, 631 n. 4, 435 A.2d 581, 583 n. 4 (1981). “The .. . purpose of imposing summary punishment for criminal contempt ... is the vindication of the dignity and authority of the court and the protection of the interests of the general public.” In the Matter of Campolongo, supra 495 Pa. at 631, 435 A.2d at 583.

Although the law has long recognized the inherent power of the courts to impose summary punishment for contemptuous misconduct, that power has been limited in this Commonwealth by Section 4131 of the Judicial Code: § 4131. Classification of penal contempts
The power of the several courts of this Commonwealth to issue attachments and to inflict summary punishments for contempts of court shall be restricted to the following cases:
(1) The official misconduct of the officers of such courts respectively.
(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.
Id. 495 Pa. at 631-32, 435 A.2d at 583 (footnotes omitted).

Although the lower court did not say so in so many words, it is evident that the court regarded appellant’s conduct as misbehavior in the presence of the court, obstructing the administration of justice. Accordingly, to be sufficient to support appellant’s conviction, the evidence had to show, beyond a reasonable doubt, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), appellant’s misconduct in the presence of the court; his intent to obstruct the administration of justice; and actual obstruction. Commonwealth v. Reid, 494 Pa. 201, 431 A.2d 218 (1981).

Appellant argues that the evidence was insufficient to show his intent to obstruct the administration of justice because it did not show that he had “tactically planned” his conduct. Brief for Appellant at 17. In appellant’s view, his conduct was nothing more than “zealous advocacy on behalf of his client.” Brief for Appellant at 11. This argument misconceives the sort of intent that had to be proved.

In Commonwealth v. Owens, 496 Pa. 16, 436 A.2d 129 (1981), the Court said:

[A] subjective intent to obstruct the administration of justice is not a requisite element of criminal contempt. See, e.g., Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976) (plurality). The requisite element of intent is satisfied if the contemnor had the intent to obstruct the proceedings. When that intent manifests itself in misconduct in the presence of the court which ... in fact obstructs the administration of justice, criminal contempt has been committed.

Id., 496 Pa. at 24, 436 A.2d at 133 (footnote omitted). Here the evidence made plain appellant’s intent to obstruct the proceedings. For example, among other statements made to the court was the following:

He [appellant’s client, Mr. McDeavitt] does not and I as counsel do not participate in these proceedings. You may do what you will, but if he moves forward to the bar it is under the force and compulsion of the law, physical force. And when he does, he does it because you drag him and not because he participates in these proceedings.
N.T. 4.

It may well be that appellant was acting in good faith in the sense that he was attempting to protect his client. But that is of no consequence. In Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975), the Court said:

[A]ll orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but absent a stay, to comply promptly with the order pending appeal. Persons who make private determinations of law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect .... While claims of error may be preserved in whatever way the applicable rules provide, counsel should neither engage the court in extended discussion once a ruling is made, nor advise a client not to comply. Id. at 458-59, 95 S.Ct. at 591 (citation and footnote omitted).

Appellant also argues that the evidence was insufficient to prove an “actual obstruction” of the administration of justice. This argument has no merit. “[Pjor conduct to be an obstruction of the administration of justice, it must interfere with and disrupt the orderly process of a court.” In re Johnson, 467 Pa. 552, 558, 359 A.2d 739, 742 (1976). Appellant’s conduct interrupted and delayed the hearing the lower court had scheduled. From the outset appellant refused to recognize the court’s authority, over either his client, Mr. McDeavitt, or himself. While it is true, as appellant notes, that the “proceeding against [appellant’s] client did, in fact, proceed to a conclusion,” Brief for Appellant at 17, that occurred only after the delay caused by appellant’s conduct, and then not in a satisfactory manner, for on appellant’s advice, Mr. McDeavitt refused to participate in the hearing, thus depriving the court of the benefits to be realized from a properly conducted adversary proceeding.

Our conclusion that the evidence was sufficient to support appellant’s conviction is supported by other cases. See, e.g., Commonwealth v. Snyder, 443 Pa. 433, 275 A.2d.312 (1971) (defendant interrupted Commonwealth’s closing argument and refused to behave in an orderly manner); Commonwealth v. Owens, supra (defendant repeatedly interrupted proceedings to request new counsel and express dissatisfaction with proceedings). Cf. In re Johnson, supra (attorney not in contempt when improper remarks during closing argument did not disrupt or delay trial); McMillan v. Mountain Laurel Racing Inc., 467 Pa. 266, 356 A.2d 742 (1976) (attorney not in contempt for questioning court’s ruling on cross-examination where discussion consumed less than one page of transcript).

-2-

In imposing summary punishment, the lower court did not abuse its discretion. As said in Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980):

In keeping with the gravity of a criminal contempt, the law has long recognized the need to provide the courts with the power to impose summary punishment for such conduct in appropriate situations .... Summary action permits the court to eliminate the traditional steps involved in an adjudication .... Although this is a drastic departure from our traditional view of due process, its justification in the punishment of criminal contempt was well stated by Mr. Chief Justice Taft in Cooke v. United States, 267 U.S. 517, 536, 45 S.Ct. 390, 394, 69 L.Ed. 767, 773 (1925):
We think the distinction finds its reason not any more in the ability of the judge to see and hear what happens in the open court than in the danger that, unless such an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of tÜe judge before the public in the “very hallowed place of justice,” as Blackstone has it, is not instantly suppressed and punished, demoralization of the court’s authority will follow ....

Id., 487 Pa. at 579-80, 410 A.2d at 763 (citations omitted).

-3-

The issue of when recusal is required was considered in Commonwealth v. Stevenson, 482 Pa. 76, 393 A.2d 386 (1978) (plurality opinion). After pointing out that summary proceedings for contempt are permissible—that is, that we tolerate the omission of the usual steps of service of process, formal hearings, argument, and findings—because “the necessities of the administration of justice require such summary dealing ... [as] a mode of vindicating the majesty of the law, in its active manifestation, against obstruction and outrage to it,” Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954), Justice POMEROY said:

From the same necessity that in a proper case warrants summary punishment for contempt comes also the permissibility of the imposition of sanctions by the judge who heard and saw the misconduct. But when that necessity is absent, the reason for allowing the judge who has been the object of insult to preside over the hearing is also absent. As a constitutional matter, recusal is required when the record reveals a “running, bitter controversy” between the judge and the offender. Mayberry v. Pennsylvania, 400 U.S. 455, 465, 91 S.Ct. 499, 505, 27 L.Ed.2d 532, 540 (1971).
Commonwealth v. Stevenson, supra 482 Pa. at 91, 393 A.2d at 394.

Here, the record does reveal a “running” controversy between the lower court and appellant. In its opinion the lower court states:

In the past, Attorney Falkenhan has deliberately used the system to subvert orders and avoid local rules promulgated to facilitate the work of the Court. His tactics have annoyed and frustrated both the Court, his opponents and their clients. It is no wonder that there seemed to be unanimous approval by members of the bar of this order adjudicating Mr. Falkenhan in contempt.
Slip op. at 6.

Given this background, it might have been better if the lower court had recused itself. We do not believe, however, that recusal was required, for the record does not show that the controversy between the lower court, although “running,” was “bitter.” The court did not regard appellant’s conduct as directed at it. In its opinion the court states: “The conduct of Attorney Falkenhan was not directed at this judge personally. There was no personal insult intended.” Slip op. at 6. Also, the court bore appellant no ill-will; it recognized that his motive was to serve his client, only condemning—quite properly, as we have discussed—his judgment. Thus the court states:

I applaud the always vigorous and well-prepared advocacy of Attorney Falkenhan. I deplore some of the tactics he employs. In this particular situation, it became apparent that Attorney Falkenhan planned to attack the constitutionality of the Protection from Abuse statute. Whatever may have been the objectives of his maneuver, his conduct disrupted orderly court procedure.
Slip op. at 7.

Finally, during the hearing appellant was treated fairly. He was held in contempt only after he had refused, either to represent his client by engaging in the hearing, or, if he chose not to represent his client, by remaining silent and not engaging in the hearing. On balance, we conclude that whether to recuse itself was a matter within the lower court’s discretion, which it could have resolved either way. Compare, Commonwealth v. Reid, supra (recusal not required); Commonwealth v. Patterson, 452 Pa. 457, 308 A.2d 90 (1973) (recusal not required) with Commonwealth v. Stevenson, supra (recusal required where personal insult to judge and no need to proceed summarily) and Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976) (same).

-4r-

While appellant’s conviction of direct criminal contempt was proper, the sentence imposed on the conviction must be vacated and the case remanded for resentencing. Although appellant’s contempt was a criminal contempt, the lower court imposed the sort of sentence appropriate to a civil contempt. It thereby denied appellant procedural safeguards essential to a criminal proceeding.

As we have discussed above, the purpose of a criminal contempt is to vindicate the dignity and authority of the court and to protect the interests of the general public. The purpose of a civil contempt, in contrast, is “to enforce compliance with an order of court for the benefit of the party in whose favor the order runs.” Commonwealth v. Marcone, supra 487 Pa. at 577, 410 A.2d at 762.

A consequence of these different purposes is that different sorts of sentences must be imposed. The distinctive feature of a sentence for civil contempt is that it is indeterminate:

“The contumacious party need not stay in jail for any definite term; he may get out at will. He need only purge himself of his contempt by complying or showing a willingness to comply with the court’s order. This is classically expressed in the aphorism that the person imprisoned for civil contempt carries the keys to the jail in his own pocket.”
In re Martorano, 464 Pa. 66, 79 n. 16, 346 A.2d 22, 28 n. 16 (1975) (quoting Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183 at 237 (1971) (footnote omitted)).

The distinctive feature of a sentence for criminal contempt is that the sentence is “to a determinate term of imprisonment or a fixed fine.” In re Martorano, supra, 464 Pa. at 80, 346 A.2d at 29. Since the essence of the sentence is not to coerce but to punish, the person sentenced must be “powerless to escape by purging himself of his contempt . . . . ” Id.

Here, it will be recalled, the lower court imposed sentence as follows:

The sentence of the court is that you pay a fine of one thousand dollars for the use of the Commonwealth of Pennsylvania. You are committed to the Butler County Prison until such time as the fine is paid.
MR. FALKENHAN: I demand to know now—
THE COURT: At such time as the fine is paid you will be discharged.
N.T. 16.

This sentence was not a proper sentence to impose for appellant’s criminal contempt. It was, instead, a sentence for civil contempt; the fine was for the benefit of a party (the Commonwealth); and appellant could by paying the fine be discharged from the county prison—he “carrie[d] the keys to the jail in his own pocket.”

There is a further difficulty arising from the lower court’s failure to fix a definite term of imprisonment.

“Criminal contempt of court is a crime.” In re Johnson, supra 467 Pa. at 557, 359 A.2d at 742. As such it may be punished by imprisonment. The Legislature has not, however, specified the maximum permissible term of imprisonment. 42 Pa.C.S.A. § 4132.

One accused of a “serious offense” is entitled to a jury trial. U.S. Const. amend. VI; Pa. Const. art. I, §§ 6, 9. “The decisions of the Supreme Court of the United States have established a fixed dividing line between petty and serious offenses: those crimes carrying more than six months sentence are serious and those carrying less are petty crimes.’ ” Commonwealth v. Mayberry, 459 Pa. 91, 98, 327 A.2d 86, 89 (1974) (quoting Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974)).

When, as in Pennsylvania, the Legislature has not specified the maximum permissible term of imprisonment,

then in order to determine whether a jury trial is required, a court must consider the sentence actually imposed .... If the sentence actually imposed is greater than six months, then the accused must be afforded an opportunity to be tried by jury ....
Commonwealth v. Mayberry, supra 459 Pa. at 99, 327 A.2d at 90 (citing, inter alia, Codispoti v. Pennsylvania, supra).

Here, the sentence actually imposed might or might not result in appellant being imprisoned for more than six months. The lower court did not determine, and the record does not otherwise disclose, appellant’s ability to pay the fine of $1,000 assessed as part of the sentence. As we have discussed, appellant could obtain his discharge from the county prison upon paying the fine. But he would not be discharged until he paid it. If he was unable to pay the fine, therefore, under the terms of the sentence he would be imprisoned indefinitely, which is to say, he would have been denied his constitutional right to a jury trial—this being so quite apart from the impropriety of an indefinite sentence for criminal contempt.

Since the case must be remanded for resentencing, one further observation is in order. Appellant having been convicted of a crime, In re Johnson, supra, his sentence must be imposed as required, not only by Commonwealth v. Mayberry, supra, but also, by the Sentencing Code, 42 Pa.C.S. § 9701 et seq. See generally, Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979) (collecting cases). See also Commonwealth v. Young, 299 Pa.Superior Ct. 488, 445 A.2d 1235 (1982); Commonwealth v. Doyle, 275 Pa.Superior Ct. 373, 418 A.2d 1336 (1979). If the lower court determines that a fine should be assessed, the court must determine, among other matters, appellant’s ability to pay the fine and the burden that payment will impose. 42 Pa.C.S. § 9726.

The conviction of appellant of direct criminal contempt is affirmed. The judgment of sentence is vacated and the case is remanded for resentencing consistent with this opinion. We do not retain jurisdiction.

      . At one time, the Supreme Court had jurisdiction over appeals from final orders in direct criminal contempt cases. 42 Pa.C.S.A. § 722(4). However, jurisdiction is now in the Superior Court. 42 Pa.C.S.A. § 742.

      . In In the Matter of Campolongo, supra, the Supreme Court noted that the weight of authority is that an attorney is not an officer of the court within subsection 1 of Section 4131 of the Judicial Code. Id. 495 Pa. at 632 n. 7, 435 A.2d at 583 n. 7.