text:
    441 A.2d 1242
    COMMONWEALTH of Pennsylvania ex rel. Margaret HEIMBROOK v. Wayne HEIMBROOK, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1981.
    Filed Feb. 16, 1982.

      Arthur B. Siegel, Public Defender, Milford, for appellant.
    Steven R. Guccini, Assistant District Attorney, Paupack, for Commonwealth, appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

Wayne Heimbrook was found to be in contempt of court for failing to pay a support order and was sentenced to serve six months in prison unless he purged himself by paying $250.00 on account of accumulated arrearages. On appeal, he complains (1) that he was not afforded the procedural protections guaranteed by Criminal Procedural Rules 1401 et seq. and (2) that the trial court imposed conditions for purging with which he cannot presently comply. We will examine separately each of these contentions.

On May 2, 1978, pursuant to a petition filed under the Civil Procedural Support Law of July 13, 1953, P.L. 431, 62 P.S. § 2043.31 et seq., the Court of Common Pleas of Pike County entered an order directing appellant to pay the sum of $20.00 per week for the support of his three minor children. There was no appeal from that order. Appellant refused to comply with the order, however, and he was found in contempt on July 17, 1978, September 5, 1978, and February 26, 1980. On all of those occasions, appellant purged himself by complying with conditions decreed by the court. In February, 1980, changed circumstances caused the order to be modified to require appellant to pay the sum of $10.00 per week for the support of one son. He was ordered also to pay the sum of $20.00 per week on account of accumulated arrearages.

On July 1, 1980, appellant was again before the court, charged with contempt. At that time, testimony disclosed that appellant had failed to make payments and, despite an employment opportunity with the Pike County CETA office, had refused to report for work. At a final hearing on July 8, 1980, appellant’s unjustified refusal to report for work was confirmed. Appellant was thereupon found in contempt and sentenced in the manner hereinbefore recited. This appeal followed.

The enforcement provisions of the Civil Procedural Support Law appear at 42 Pa.C.S. § 6708(a) wherein it is provided:

“A defendant who willfully fails to comply with any order under this subchapter . . . may, after hearing, be adjudged in contempt and committed to prison by the court.”

Such contempt proceedings are civil in nature. In Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977), Chief Justice Eagen wrote for the Supreme Court: “[T]he purpose of [the Civil Procedural Support Law] clearly is to provide a civil mechanism for effecting compliance with the duty of support. Accordingly, the trial court, after finding [husband] in contempt of its orders of support, imposed conditional sentences of imprisonment in order to coerce him into compensating his children for the arrearages accumulated in the past and providing the support due them in the future. The contempts thus were clearly civil.” Barrett v. Barrett, id., 470 Pa. at 260, 368 A.2d at 619.

In the instant case the court complied fully with statutory and other procedural safeguards. It held a hearing; it found that appellant had willfully failed to comply with its previous order; and it imposed a coercive, conditional sentence. It was not necessary that the trial court await a presentence investigation before imposing sentence or state on the record the reasons for the sentence as required in criminal cases by Pa.R.Crim.P. 1405.

In Barrett, the Supreme Court held that when imposing a coercive sentence following a finding of civil contempt, the hearing judge should set conditions for purging the contempt “with which it is convinced beyond a reasonable doubt, from the totality of the evidence before it, the contemnor has the present ability to comply.” Barrett v. Barrett, supra, 470 Pa. at 264, 368 A.2d at 621. “[A] court may not convert a coercive sentence into a punitive one by imposing conditions that the contemnor cannot perform and thereby purge himself of the contempt.” Barrett v. Barrett, id., 470 Pa. at 262, 368 A.2d at 620. See also: Kramer v. Kelly, 265 Pa.Superior Ct. 58, 65, 401 A.2d 799, 802 (1979).

In the instant case the trial court found upon substantial evidence that appellant was an “able-bodied man, quite capable of working” and paying the modest support order which had been entered against him. The record supports fully the court’s finding that appellant was in contempt. However, the same record fails to disclose that appellant has the present ability to comply with the conditions imposed by the court for purging himself of contempt. It does not disclose whether he owns property or has income in any amount. However, it does reveal that he is unemployed and receiving public assistance. He argues, as he did in the trial court, that he is unable to comply with the court’s condition. Thus, while a coercive sentence is wholly appropriate in this case, the record does not support, and the trial court did not find, a present ability on the part of appellant to purge himself by making an immediate payment of $250.00. Consequently, the sentence appears to be punitive and not coercive. Barrett v. Barrett, supra.

Upon remand, the trial court may, if it deems it necessary, receive additional evidence to assist it in determining appropriate coercive conditions. Those conditions, however, must be such with which the court is “convinced beyond a reasonable doubt, from the totality of the evidence before it, the contemnor has the present ability to comply.” Barrett v. Barrett, supra 470 Pa. at 264, 368 A.2d at 621.

The order of the trial court is vacated, and the case is remanded for further proceedings consistent with this opinion.

      . The provisions of the Civil Procedural Support Law are now contained in 42 Pa.C.S. § 6701 et seq.


source: Caselaw Access Project

author: SUGERMAN, Judge:

license: Public Domain

text:
    441 A.2d 1244
    COMMONWEALTH of Pennsylvania v. Edward F. HUGHES, Appellant.
    Superior Court of Pennsylvania.
    Argued June 12, 1979.
    Filed Feb. 16, 1982.

      Roger Harrington, Philadelphia, for appellant.
    Bert Goodman, Assistant District Attorney, Norristown, submitted a brief on behalf of Commonwealth, appellee.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       President Judge John Q. Stranahan, of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.

        Judge Leonard Sugerman, of the Court of Common Pleas of Chester County, Pennsylvania, is sitting by designation.

   SUGERMAN, Judge:

Appellant, on appeal, contends that the lower court committed error in dismissing his petition to expunge his arrest record without holding a hearing thereon.

To properly assess Appellant’s contention, we must briefly recount the facts. Bearing in mind that the lower court held no hearing upon Appellant’s petition, and there is thus no record, we glean the facts from the petition, the answer thereto filed by the Commonwealth and the opinion of the lower court.

Appellant was arrested in Montgomery County by an officer of the Whitemarsh Township police department upon a charge of public drunkenness and taken to the White-marsh Township police headquarters building. As Appellant was being placed in a cell, he allegedly swung his belt at the arresting officer, and when finally in the cell, allegedly set fire to a blanket. As the result of such asserted conduct, Appellant was charged with aggravated assault and arson endangering property, in addition to public drunkenness.

Subsequently, Appellant appeared before a district justice for a preliminary hearing and pleaded guilty to the charge of public drunkenness. The Commonwealth did not proceed upon and apparently withdrew the charges of arson and aggravated assault.

Thereafter, Appellant filed the instant petition seeking expunction of all records pertaining to his arrest upon the charges of arson and aggravated assault.

In his petition, Appellant averred inter alia, that his arrest upon the latter charges and the record thereof has caused him embarrassment and irreparable harm, and the Commonwealth will not be harmed in the event Appellant’s records are expunged. The Commonwealth, in its answer to the petition, asserted, without more, that it would be “greatly harmed” if the petition were granted. In new matter, the Commonwealth averred, again without more, that “. .. under the existing facts and circumstances in the instant case, expungement [sic] is not appropriate”. These allegations together with an admission by the Commonwealth that the district justice had granted the Commonwealth’s motion for a nolle prosequi and a copy of the criminal complaint constituted the only record before the court at the time it entered the order denying Appellant’s petition.

In its able opinion filed in response to Pa.R.A.P. 1925(a), the lower court referred to the entry of Appellant’s plea to the charge of public drunkenness, and the contemporaneous “entry” of the nolle prosequi upon the Commonwealth’s request, as a plea bargain. The lower court then reviewed our decisions in Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976) and Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978), and distinguished those decisions from the case at hand on the ground that Malone and Mueller mandated hearings in order to “prevent the punishment of an innocent person”, while in the case at bar, the charges of arson and aggravated assault were “nolle prossed ... at the volition ...” of Appellant. Opinion of lower court, at 7. The lower court then stated its rationale:

“If every defendant, who voluntarily enters into a plea bargain was given the right to an evidentiary hearing, [presumably, upon a petition to expunge those charges withdrawn or nol prossed in exchange for the plea] and expungement [sic] was granted, such would make it most difficult to administer the Commonwealth’s Criminal Identification System ...” Id. at 8.

It can no longer be doubted “that in certain circumstances, substantive due process guarantees an individual the right to have his or her arrest record expunged”, Commonwealth v. Wexler, 494 Pa. 325, 329, 431 A.2d 877, 879 (1981), and the right to petition for expunction is thus an adjunct to due process. Commonwealth v. Armstrong, 495 Pa. 506, 509, 434 A.2d 1205, 1206 (1981). Accord, Commonwealth v. Capone, 282 Pa. Super. 458, 459,422 A.2d 1383, 1384 (1980); Commonwealth v. Welford, 279 Pa.Super. 300, 302, 420 A.2d 1344, 1345 (1980); Commonwealth v. Briley, 278 Pa.Super. 363, 366, 420 A.2d 582, 584 (1980); Commonwealth v. Bailey, 278 Pa.Super. 51, 53, 419 A.2d 1351, 1352 (1980); Commonwealth v. Iacino, 270 Pa.Super. 350, 354, 411 A.2d 754, 757 (1979); Commonwealth v. Rose, 263 Pa.Super. 349, 351, 397 A.2d 1243, 1244 (1979); Commonwealth v. Mueller, 258 Pa.Super. 219, 222, 392 A.2d 763, 764 (1978); Commonwealth v. Malone, 244 Pa.Super. 62, 68, 366 A.2d 584, 587 (1976). As a petitioner’s right is thus of constitutional dimension, a hearing upon a petition to expunge is mandated to determine whether the circumstances require expunction. Commonwealth v. Bailey, supra, 278 Pa.Super. at 53, 419 A.2d at 1352; Wert v. Jennings, 249 Pa.Super. 467, 471, 378 A.2d 390, 392 (1977), aff’d mem., 488 Pa. 124, 411 A.2d 218 (1980); Commonwealth v. Malone, supra, 244 Pa.Super, at 71, 366 A.2d at 589. As Appellant was denied a hearing, we must remand.

Having determined that Appellant must be afforded a hearing upon his petition to expunge, we should also address the nature of the proceeding to be conducted by the lower court. As we have observed, there is no record of the events that occurred at Appellant’s preliminary hearing and the lower court should therefore endeavor to reconstruct on the record the events transpiring thereat. Following such reconstruction, if it appears that the Commonwealth withdrew the charges of arson and aggravated assault or in some fashion caused them to be the subject of a nolle prosequi, without presenting evidence to the District Justice on the charges, then the burden will fall upon the Commonwealth to present compelling evidence to justify the retention of Appellant’s arrest record, as it will be recalled that “if the Commonwealth does not bear its burden of proof [of the petitioner’s guilt] beyond a reasonable doubt ... or admits that it is unable to bear its burden of proof . . . the Commonwealth must bear the burden of justifying [by compelling evidence] why the arrest record should not be expunged”. Commonwealth v. Blaiklock, 291 Pa.Super. 497, 436 A.2d 226 (1981) (quoting Commonwealth v. Wexler, supra, 494 Pa. at 331, 431 A.2d at 880) (emphasis in original). See also Commonwealth v. Briley, supra, 278 Pa.Super. at 368, 420 A.2d at 585; Commonwealth v. Rose, supra, 263 Pa.Super. at 351, 397 A.2d at 1244; Wert v. Jennings, supra, 249 Pa.Super. at 471-2, 378 A.2d at 393.

When the record below has been completed, and the lower court approaches the, task of acting upon Appellant’s petition to expunge, the Court will recall that it must “engage in a balancing process, weighing the individual’s due process interest in being free from the stigma of an arrest record against the state’s interest in maintaining accurate records relating to persons suspected of criminal activity”. Commonwealth v. Blaiklock, supra, 291 Pa.Super. at 501, 436 A.2d at 227 (quoting Commonwealth v. Welford, supra, 278 Pa.Super. at 302, 420 A.2d at 1345). In striking that balance, the lower court should consider a variety of factors, including but not limited to “the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied”. Commonwealth v. Wexler, supra, 494 Pa. at 330, 431 A.2d at 879, (quoting Commonwealth v. Iacino, supra, 270 Pa.Super. at 358, 411 A.2d at 759) (SPAETH, J., concurring).

We thus vacate the order of the lower court and remand for proceedings consistent with this opinion. Either party may thereafter appeal from the action of the lower court.

Vacated and remanded.

      . 18 Pa. C.S.A. § 5505.

      . 18 Pa. C.S.A. § 2702(a)(1).

      . 18 Pa. C.S.A. § 3301(b)(1).

      . Appellant, in his petition to expunge, asserts that the district justice granted the Commonwealth’s motion for a nolle prosequi upon the charges of arson and aggravated assault. Pa.R.Crim.P. 313(a) authorizes a court of common pleas to order a nolle prosequi upon the Commonwealth’s motion but we are unaware of any such authority on the part of a district justice. Compare Pa.R.Crim.P. 141(a)(2), 143(a) and 145.

      . The lower court’s opinion notes that oral argument was held upon Appellant’s petition, but again, there is no record of the argument.

      . We hasten to note that with the exception of Malone, Wert and Mueller, all the decisions upon which we rely were filed subsequent to the date of the lower court’s order.

      . As we earlier observed, the Commonwealth in its answer to Appellant’s petition to expunge responded without amplification that it would be “greatly harmed” if Appellant’s arrest record were expunged, and that the “facts and circumstances” did not warrant expunction. Such general assertions do not constitute “compelling evidence” in favor of retaining an arrest record. Commonwealth v. Rose, supra, 263 Pa.Super. at 351, 397 A.2d at 1244. See also Commonwealth v. Wexler, supra, 494 Pa. at 335, 431 A.2d at 880-81, and Commonwealth v. Blaiklock, supra, 291 Pa.Super. at 501, 436 A.2d at 228.
      We also observe that it is more than hyperbole to suggest that our allocation of the burden of proof instantly finds support in the core concept that one accused of crime is presumed innocent “until the prosecuting attorney has demonstrated beyond a reasonable doubt to an impartial jury of the vicinage that [the accused] and the malefactor are identical, or that his actions match the definition or conform to the elements of the malefaction of which he stands accused”. Commonwealth v. Raffensberger, 291 Pa.Super. 193, 196, 435 A.2d 864, 865 (1981). Recognizing as we do the harm ancillary to the retention of an arrest record, Commonwealth v. Malone, supra, 244 Pa.Super. at 68-69, 366 A.2d at 587-88, (quoting Menard v. Mitchell, 430 F.2d 486, 490-91 (D.C. Cir. 1970)) (both quoted with approval in Commonwealth v. Armstrong, supra, 495 Pa. at 509, 434 A.2d at 1205), it is clearly appropriate that the Commonwealth be required to bear the burden of forcefully demonstrating the need to retain a record of the arrest of one thus presumed to be innocent.

      . These factors, of course, are not necessarily exclusive. Commonwealth v. Wexler, supra, 494 Pa. at 330, 431 A.2d at 879. Additional considerations are set forth at length in Commonwealth v. Briley, supra.


author: PER CURIAM:

text:
    441 A.2d 1248
    Florence R. ADAMS, Administratrix For The Estate Of Charles Jay Adams, Appellant, v. James J. WALSH and Della Walsh, His Wife and John C. Campbell, Chester County Sheriffs Office, Fred Fulton Sheriff and Parks Department of Chester County and George Fasic, Director of Chester County Parks.
    Superior Court of Pennsylvania.
    Argued March 30, 1981.
    Filed Feb. 16, 1982.
    Eugene A. Steger, Jr., Kennet Square, for appellant.
    David M. Jakobi, Paoli, for appellees.
    Before CERCONE, President Judge, and HESTER and JOHNSON, JJ.
   PER CURIAM:

On July 15, 1980, the Court of Common Pleas of Chester County entered an Order sustaining preliminary objections to the appellant’s complaint and dismissing the complaint against the appellees herein.

On July 22, 1980, the appellant filed a notice of appeal.

On July 29, 1980, the lower court (by Judge Pitt, who has since retired from the Bench), ordered the plaintiff to file a Statement of Matters Complained of, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

Appellant has admittedly not complied with said order of July 29,1980. “A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.” Pa.R.A.P. 1925(b).

Under these circumstances and on the basis of the record (or lack thereof) before us, effective appellate review is precluded. Matter of Harrison Square Ins., 470 Pa. 246, 251-52, 368 A.2d 285, 288 (1977).

Appeal dismissed.


author: PER CURIAM: SPAETH, Judge,

text:
    441 A.2d 1248
    COMMONWEALTH of Pennsylvania v. Robert BETHEL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1981.
    Filed Feb. 16, 1982.
    Petition for Allowance of Appeal Denied June 2, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

      Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   PER CURIAM:

Appellant, Robert Bethel, filed this interlocutory appeal contending that the lower court erred when it refused to dismiss the charges against him on double jeopardy grounds. We disagree and affirm the order of the lower court.

At 2:00 a. m. on May 6, 1980, Appellant and two other men entered the home of Sylvester Chester, brandishing a shotgun. They tied up Chester and the other residents of the house and robbed Chester. Appellant then asked Chester about a man named Wayne. Appellant struck Chester in the mouth with a gun and another man was somehow shot. At this point, the men asked for someone named Leo, whom they were trying to find. Appellant and one man then left the house with Chester and drove to a house at 1932 60th Street, the home of Gwendolyn Wright. They arrived around 4:00 a. m. but Wright would not let them in. They returned around 5:30 a. m. and again were refused admittance. Around 7:00 a. m. they returned to Wright’s home, breaking in through a window. Wright called the police but the men left before they arrived. Appellant was arrested around 10:00 a. m. when he returned to Wright’s house alone. Two days later, Appellant was arrested for the crimes committed in Chester’s home.

All charges were consolidated for the preliminary hearing. Sometime afterwards, however, Bills No. 1916-1925 May Term, 1980 (committed in Chester’s home) were listed for trial separately from Informations No. 2086-2090 May Term, 1980 (committed in Wright’s home). On September 23, and 24,1980, Appellant was convicted before the Honorable Marvin Halbert on Bills No. 2088, 2090, and 2091. He was found not guilty on Bills 2086, 2087, 2089 and 2092. Appellant then filed a Motion to Dismiss Bills No. 1916-1925 on the ground of double jeopardy. Following a hearing before the Honorable Stanley Kubacki, the motion was granted as to the kidnapping charge at No. 1925 May Term, 1980, but denied as to the other charges. It is from this order that the instant appeal arises.

Appellant first contends that all charges arose from the same criminal episode and thus his motion should have been granted under the principles set forth in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973) and the codification of those principles in 18 Pa.C.S. § 110. In order to be granted relief on this basis, Appellant must prove that the two incidents arose from the same transaction. Commonwealth v. Shelhorse, 252 Pa.Super.Ct. 475, 381 A.2d 1305 (1977). Two separate offenses may constitute the same criminal episode if one offense is a necessary step in the accomplishment of a given criminal objective or if additional offenses occur because of an attempt to secure the benefit of a previous offense or conceal its commission. Commonwealth v. Edwards, 264 Pa.Super.Ct. 223, 399 A.2d 747 (1979).

Appellant argues that all of the above events had but one criminal objective—to find the man named Leo. This theory is not borne out by the facts. The robbery and assault of Chester were completed crimes before Leo was ever mentioned. See Commonwealth v. Miller, 278 Pa.Super.Ct. 103, 419 A.2d 1378 (1980) (two entries into same house six hours apart); Commonwealth v. Zappacosta, 265 Pa.Super.Ct. 71, 401 A.2d 805 (1979) (possession of instruments of crime after burglary was completed constituted a separate criminal episode). Nor were the crimes committed in Wright’s home dependent on or attempts to conceal those committed in Chester’s home. Commonwealth v. Edwards, supra. Thus, the two sets of charges did not arise from the same criminal episode and relief cannot be granted on that basis. See, Commonwealth v. Lee, 291 Pa.Super. 164, 435 A.2d 620 (1981).

Appellant also argues that prosecution on the weapons charges (No. 1917 and No. 1918) is prohibited because the possession was continuous. Because Appellant did not raise this issue, either in his written motion or during the hearing before Judge Kubaeki, it is waived. Commonwealth v. Cohen, 270 Pa.Super.Ct. 90, 410 A.2d 1264 (1979).

The lower court’s denial of Appellant’s motion is, therefore, affirmed and the case is remanded for appropriate proceedings. We do not retain jurisdiction.

SPAETH, J., files a concurring statement.

SPAETH, Judge,

concurring:

I join in the majority’s opinion, but the case has an unusual aspect that I believe should be mentioned.

Appellant was convicted and sentenced for criminal trespass (No. 2088), possession of an instrument of crime and an offensive weapon (No. 2090), and possession of a firearm on a public street (No. 2091). All of these charges arose out of the events that occurred in the Wright home. In his motion to dismiss, appellant argued that the charges arising out of the events that occurred in the Chester home, see majority slip op. at 1249 n. 2, should be dismissed under Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973). This argument depended on the assertion that the events that occurred in the Chester home and the events that occurred in the Wright home were part of the same criminal episode. I agree with the majority that they were not.

In his brief to us appellant argues that he should not be prosecuted on the possession charges arising out of the events that occurred in the Chester home,—i.e., possession of an instrument of crime (No. 1916), carrying a firearm on a public street without a license (No. 1917), and former convict not to own firearms (No. 1918)—because “the act of possession represents a continuous course of conduct.” Appellant’s Brief at 20-21. Appellant did not make this argument in his motion to dismiss. However, in its brief the Commonwealth concedes that the argument has merit: “If the issue were preserved, the Commonwealth would agree that defendant’s continuous possession of a weapon would not be subject to further prosecution. See United States v. Jones, 533 F.2d 1387 (8th Cir. 1976).” Appellee’s Brief at 8.

In these circumstances I believe that it would be improper for the Commonwealth to attempt prosecution on the possession charges. It would also create needless litigation and delay. For if tried and convicted on those charges, appellant could in a PCHA proceeding assert trial counsel’s ineffectiveness and have the convictions set aside.

      . A pretrial order denying a motion to dismiss on double jeopardy grounds is final and immediately appealable. Commonwealth v. Fields, 491 Pa. 609, 421 A.2d 1051 (1980); Commonwealth v. Nay, 281 Pa.Super.Ct. 226, 421 A.2d 1231 (1980).

      . The charges arising from conduct in Chester’s home are: possession of an instrument of crime (No. 1916), carrying a firearm without a license (No. 1917), possession of firearm by former convict (No. 1918), recklessly endangering another person and terroristic threats (No. 1919), conspiracy (No. 1920), theft (No. 1921), simple and aggravated assault (No. 1922), robbery (No. 1923), unlawful restraint (No. 1924), and kidnapping (No. 1925). The charges from Wright’s home include: possession of firearm by former convict (No. 2086), burglary (No. 2087), criminal trespass (No. 2088), conspiracy (No. 2089), possession of an instrument of crime and an offensive weapon (No. 2090), possession of a firearm on a public street (No. 1091), and theft (No. 2092).


text:
    441 A.2d 1251
    Larry Kenneth HILLIARD, Appellant, v. Doris A. HILLIARD and Theol Gower.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1981.
    Filed Feb. 16, 1982.

      Edwin Krawitz, East Stroudsburg, for appellant.
    Stanley P. Ticktin, Stroudsburg, for appellees.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   PER CURIAM:

Appellant, Larry Kenneth Hilliard, appeals from the order of the trial court dismissing his exceptions—thereby denying his divorce claim—and which granted the appellee’s, Doris Hilliard’s, counterclaim for divorce. The appeal has been taken from a divorce action in which the order of the trial court has not been reduced to a judgment and docketed.

In Gadbois v. Leb-Co. Builders, Inc., 290 Pa.Super. 523, 525, 434 A.2d 1267, 1267-1268 (1981), we said:

It is settled that an order disposing of exceptions following a nonjury trial is interlocutory and nonappealable. Heffner v. Bock, 287 Pa.Super. 345, 430 A.2d 318 (1981). See also Lashner v. Redevelopment Authority of the City of Philadelphia, 286 Pa.Super. 549, 429 A.2d 659 (1981); Unterberger v. Life Assurance Co. of Pennsylvania, 286 Pa.Super. 469, 429 A.2d 34 (1981); Slaseman v. Myers, 285 Pa.Super. 167, 427 A.2d 165 (1981); Penstan Supply Co. v. Hay, 283 Pa.Super. 558, 424 A.2d 950 (1981). “Such an order does not become appealable until, ‘on praecipe of any party,’ Pa.R.A.P. 301(d), it is ‘reduced to judgment and docketed,’ Pa.R.A.P. 301(c). And see Pa.R.C.P. 1038(e). The requirement that judgment be docketed is jurisdictional.” Unterberger v. Life Assurance Co. of Pennsylvania, supra, 286 Pa. Super, at 470, 429 A.2d at 35.

Because this requirement has not been met in the present case, the appeal is premature and must be quashed.

Appeal quashed.


author: HESTER, Judge:

text:
    441 A.2d 1252
    Kathryn Elaine McKINNEY a/k/a Elaine Kratz, Appellant, v. STATE FARM MUTUAL AUTO INSURANCE COMPANY and Pennsylvania Automobile Insurance Plan.
    Superior Court of Pennsylvania.
    Submitted March 11, 1981.
    Filed Feb. 19, 1982.

      D. Bruce Cahilly, Coudersport, for appellant.
    Priscilla M. Walrath, Wellsboro, for State Farm, appellee. William J. Kubiak, Bradford, for Pennsylvania Auto., appellee.
    Before HESTER, ROWLEY and MONTGOMERY, JJ.
   HESTER, Judge:

Kathryn Elaine McKinney, the plaintiff below, has appealed an Order of the Court of Common Pleas of Potter County, dated September 11, 1980, sustaining the preliminary objections of both appellees and dismissing her second amended complaint, with prejudice.

On March 31,1977, appellant contacted Coudersport Insuring Company, Inc. to procure automobile insurance, as required by Section 104(a) of the Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, as amended, 40 P.S. Section 1009.104(a). An application for No-Fault Motor Vehicle Insurance was prepared by Coudersport and signed by appellant on April 4, 1977.

Coudersport forwarded the application to appellee, Pennsylvania Automobile Insurance Plan (hereinafter referred to as “The Plan”).

In response to said application, the Plan assigned the policy to appellee State Farm Mutual Auto Insurance Company effective April 7, 1977. State Farm did issue a policy of insurance, effective from April 7, 1977 through April 7, 1978.

Appellant, while operating her motor vehicle, was involved in an accident on April 6, 1977, as a result of which she allegedly incurred certain medical expenses which, admittedly, would be covered by No-Fault Motor Vehicle Insurance if such insurance was in effect at the time of the accident.

A Writ of Summons in Assumpsit was issued on July 5, 1978, on behalf of the appellant. On September 8, 1978, a Rule to file a complaint was served on the appellant. Appellant’s original complaint in assumpsit was filed on January 31, 1980. The original complaint alleges that Coudersport prepared the application for insurance, at appellant’s request, and appellant made an initial payment in the amount of $25.00, payable to the Plan.

The original complaint further alleges that, “The Plaintiff then proceeded with a copy of the application for insurance which included inter alia a typed paragraph in bold face, red ink, entitled ‘Evidence of Insurance and Effective Date of Coverage’ as proof of insurance coverage, to the District Magistrate’s Office whereupon application for a temporary registration was made and obtained immediately.”

Said original complaint continued, “That under the rules and regulations of the Pennsylvania Automobile Insurance Plan, Section 12, entitled ‘Designations of Company’, photocopy of which is marked Exhibit “F” and attached hereto and incorporated herein by reference, the effective date of the insurance coverage for the plaintiff should have been 12:01 A. M. ‘on the day following the date of the mailing of the application to the Plan’ or April 5th, 1977 at 12:01 A. M.”

Said original complaint concluded that, as a result of “the negligence and/or breach of contract” of the appellees, the appellant claimed damages to her automobile, reimbursement for medical expenses incurred by herself and her six passengers and attorneys fees in the amount of $1,500.

Following the filing of preliminary objections to the original complaint, appellant filed a first amended complaint in assumpsit on May 16, 1980, which incorporated the original complaint and further alleged that Coudersport was the duly authorized agent of the appellees. The amended complaint further alleged that the application for insurance, “. . . gave Plaintiff certain guarantees and afforded certain protections, among which was effective automobile insurance coverage as shown in said contract for a period not to exceed 30 days or until the actual issuance of a policy of insurance applied for, whichever occurs first.” The first amended complaint further alleged that the Plan was “negligent” in failing to adhere to its own rules and regulations “. . . thus resulting in a breach of said Defendant’s contract with the Plaintiff”. The first amended complaint finally demanded payment to the plaintiff pursuant to the “uninsured motorist coverage” specified by the application for insurance.

Preliminary objections to the first amended complaint in assumpsit were filed by both appellees. Thereafter, on July 11,1980, appellant filed a second amended complaint, for the first time alleging both a trespass and assumpsit action, whereby the appellant incorporated by reference all of the paragraphs of the original complaint and first amended complaint into both Count I in Assumpsit and Count II in Trespass.

Appellees filed preliminary objections to the second amended complaint in the nature of a Motion to Strike for Failure to Comply with Pennsylvania Rule of Civil Procedure 1020(d)(1), and in the nature of a demurrer, which were sustained by the lower court, with prejudice.

On appeal, appellant has abandoned her claims for damages to her automobile, for reimbursement of medical expenses on behalf of her six passengers, for uninsured motorist coverage and for attorneys fees. Although appellant only seeks, on appeal, to prove her entitlement to reimbursement for her medical expenses resulting from the April 6, 1977 accident, appellant continues to contend that she has stated valid causes of action in both assumpsit and trespass. Furthermore, there is nothing in the record before us which indicates that plaintiff ever sought leave to amend her second amended complaint. Nor does appellant assert in her brief that the lower court abused its discretion in not allowing her a further opportunity to amend.

Under these circumstances, we hold that the lower court did not abuse its discretion in dismissing the second amended complaint, with prejudice, and, therefore, we affirm the lower court’s order.

It is clear that appellant’s second amended complaint violates Pennsylvania Rule of Civil Procedure 1020(d)(1) which states:

“If a transaction or occurrence or a series of transactions or occurrences gives rise to causes of action in assumpsit and trespass against the same person, including causes of action in the alternative, they shall be joined in an action against any such person in separate count. Each count shall specify whether because of action therein is in assumpsit or trespass, shall state that cause of action and any special damages relating thereto and shall demand the relief sought. . . . ”

By simply incorporating all of the averments of the original complaint and first amended complaint into two separate counts, one in trespass and one in assumpsit, appellant impermissibly intermingled the allegations necessary to support each separate cause of action. Certainly, the allegations necessary to support a cause of action in assumpsit do not also support a cause of action in trespass. Appellant attempted to amend her complaint to include a count in trespass after the statute of limitations had run, which is clearly impermissible, Shenandoah Borough v. Philadelphia, 367 Pa. 180, 189-90, 79 A.2d 433, 438 (1951); Laursen v. General Hospital of Monroe County, 494 Pa. 238, 243-44, 431 A.2d 237, 240 (1981). Furthermore, there are no allegations in any of the three complaints concerning any duty of care owed to the appellant or any breach of that duty by appellees. An allegation of negligence without facts to support that allegation is insufficient to support a cause of action in trespass. Drenkhahn v. Philadelphia Title Insurance Company, 402 Pa. 138, 139-40, 166 A.2d 495, 496 (1961).

The three complaints demanded recovery for damages which were not supported by an allegation. On appeal, appellant has abandoned her claim for recovery, except for reimbursement of her medical expenses. The lower court could have ignored these “impertinent” matters as “mere surplusage” and stricken these requests for damages, pursuant to Pa.R.C.P. 1017(b)(2). However, their inclusion in all three complaints supports the ultimate exercise of discretion by the lower court.

Concerning the demurrer to the assumpsit count, it is axiomatic that a demurrer admits all well-pleaded facts in the complaint, and all inferences fairly deductable therefrom. Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962); Speck v. Finegold, 268 Pa.Super. 342, 353, 408 A.2d 496, 501 (1979); Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976). However, due to appellant’s violation of Pa.R.C.P. 1020(d)(1), none of the facts in the second amended complaint are “well-pleaded”.

Accordingly, we do not reach the issue as to whether appellant stated a valid cause of action in assumpsit against the appellees or whether appellant would have reasonably been able to state a cause of action in assumpsit, by further amendment.

In Otto v. American Mutual Insurance Company, 482 Pa. 202, 393 A.2d 450 (1978), our Supreme Court reversed a decision of this Court at 241 Pa.Super. 423, 361 A.2d 815 (1976), by allowing the appellants to amend their cause of action in trespass to avoid a demurrer. The Supreme Court agreed with this Court that the initial complaint failed to state a cause of action but, “The right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully. Pa.RC.P. 1033”. 482 Pa. 205, 393 A.2d at 451.

In Otto, the lower court concluded that the initial complaint failed to state a cause of action and, therefore, dismissed the complaint with prejudice. We affirmed “. . . because the plaintiffs did not seek, from the court below, leave to amend their complaint ...” 241 Pa.Super. 428, 361 A.2d at 818.

Clearly, the instant case is distinguishable from Otto in that the appellant has already filed three complaints and has not requested leave to amend in the court below. Furthermore, appellant does not request leave to file a further amended complaint on appeal. Under these circumstances, we hold that the lower court did not abuse its discretion in dismissing the complaint with prejudice. Nationwide Mutual Insurance Company v. Barbera, 443 Pa. 93, 277 A.2d 821 (1971); Eastgate Enterprises, Inc. v. Bank and Trust Company, 236 Pa.Super. 503, 345 A.2d 279 (1975); Lewison v. Vitti, 24 Pa.Cmwlth. 331, 356 A.2d 844 (1976); Behrend v. Yellow Cab Company, 441 Pa. 105, 271 A.2d 241 (1970).

Order Affirmed.

      . An Order sustaining preliminary objections in the nature of a demurrer and dismissing the complaint is a final order and, therefore, appealable. J.A. & W.A. Hess, Inc. v. Hazle Township, 465 Pa. 465, 471, 350 A.2d 858, 861 (1976); Otto v. American Mutual Insurance Company, 482 Pa. 202, 204, 393 A.2d 450, 451 (1978).

      . Coudersport was never named as a defendant in this action.

      . Plaintiff did not base her claim for attorneys fees on any specific statutory authority. See, e.g. 40 P.S. Section 1009.107 and 42 Pa.C. S.A. Section 2503.


author: WICKERSHAM, Judge: WIEAND, Judge,

text:
    441 A.2d 1255
    Gary HAVELKA v. Joseph M. SHERASKEY, Appellant, v. Harry PAPPAS, Jr.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1981.
    Filed Feb. 19, 1982.

      Stephen P. McCloskey, Washington, for appellant.
    William S. Schweers, Pittsburgh, for appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   WICKERSHAM, Judge:

On the evening of May 27, 1978, the automobile in which Gary Havelka and several of his friends were traveling ran out of gas and coasted to a stop in the left hand passing lane of a four lane highway. Havelka was a passenger in the automobile and Harry Pappas, Jr. was the driver. Havelka and the other passengers exited the automobile and began to push it from the rear. After pushing for only twenty to thirty seconds, a Datsun truck operated by Joseph M. Sheraskey slammed into the rear of the disabled automobile. Gary Havelka was seriously injured in the collision. His injuries included compound fractures of both legs requiring a below knee amputation of the left leg and there was an incomplete union of the bones of the right leg.

Gary Havelka commenced an action in trespass against Joseph M. Sheraskey, and Sheraskey joined Harry Pappas, Jr. as an additional defendant. Following trial, the jury returned a verdict in favor of Gary Havelka in the amount of $250,000.00. The jury found that both Sheraskey and Pappas were negligent. The percentage of causal negligence attributed to Sheraskey was ninety-three percent (93%) and to Pappas, seven percent (7%).

Following the jury verdict, Pappas filed a motion for new trial, motion for judgment n.o.v., petition to mold the verdict and a supplemental petition to mold the verdict. Sheraskey filed no post-trial motions whatsoever. In his supplemental petition to mold the verdict, Pappas argued that the application of Pa.R.C.P. No. 238 to him would constitute an unconstitutional denial of equal protection and due process. Rule 238 provides that where the jury verdict is greater than one hundred twenty-five percent (125%) of a written offer of settlement made by the defendant prior to trial, the trial court shall increase the amount of the verdict by ten percent (10%) as an award of damages for delay. Pappas argued that Rule 238 should not apply to him because he made a pre-trial written offer to settle for $35,000.00 which was greater than the jury verdict against him which was seven percent (7%) of $250,000.00 or $17,500.00. In its opinion, the lower court agreed that Rule 238 did not apply to Pappas and, consequently, did not reach the issue of the constitutionality of the rule. By its order dated February 9, 1981, the lower court found that Rule 238 did apply to Sheraskey, however, and the order directed the prothonotary to enter a judgment on the increased verdict accordingly. Sheraskey took this appeal from that order.

The only issue that Sheraskey raises in this appeal is whether Rule 238 is unconstitutional. Sheraskey neither raised this issue in the lower court nor notified the Court Administrator of Pennsylvania of his constitutional challenge to the rule as prescribed by Pa.R.A.P. 522. Consequently, we find that the issue has been waived. Cf. Matter of Adoption of Christopher P., 480 Pa. 79, 389 A.2d 94 (1978) (Issue of constitutionality of a statute is waived by the failure to raise it in the lower court or notify the Attorney General as prescribed by Pa.R.A.P. 521).

Judgment affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I concur in the result. The only issues properly raised by appellant in the instant appeal pertain to the facial constitutionality of Pa.R.C.P. No. 238. These issues were decided adversely to appellant in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981) (Dissenting Opinion by Roberts, J.), where a majority of the court upheld the constitutional validity of the rule. Despite a lingering belief that the dissenting opinion represents the sounder view, that decision is dispositive of the issues which have been raised in this case.

However, neither the decision of the Supreme Court in Laudenberger nor the opinion of the present majority compels the conclusion that Rule 238 was properly applied to the facts of the instant case. Similarly, it has not been determined in this case whose responsibility it is to pay the delay damages awarded by the trial court. Thus, it has not been decided whether appellee should proceed against an impecunious defendant, against whom a judgment therefor has now been entered, or against his insurance carrier who offered to pay policy limits and forwarded a check therefor at least eight months prior to trial. This issue is not now before the Court. Its resolution, therefore, must await another day.

      . Pa.R.C.P. No. 238 is set forth in entirety as follows:
      Award of Damages for Delay in an Action for Bodily Injury, Death or Property Damage
      (a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court or the arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq., or the Health Care Services Malpractice Act of October 15, 1975, P.L. 390, 40 P.S. § 1301.101 et seq., shall
      (1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court’s decision in a nonjury trial, damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict or decision;
      (2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision.
      (b) In arbitration under the Act of 1836, the amount of damages for delay shall not be included in determining whether the amount in controversy is within the jurisdiction of the arbitrators.
      (c) Except as provided in subdivision (e), damages for delay shall be added to the award, verdict or decision against all defendants found liable, no matter when joined in the action.
      (d) The court may, and on request of a party shall, charge the jury that if it finds for the plaintiff, it shall not award the plaintiff any damages for delay because this is a matter for the court.
      (e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continues that offer in effect until commencement of trial, but the offer is not accepted and the plaintiff does not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of the offer, the court or the arbitrators shall not award damages for delay for the period after the date the offer was made.
      (f) If an action is pending on the effective date of this rule, or if an action is brought after the effective date on a cause of action which accrued prior to the effective date, damages for delay shall be computed from the date plaintiff files the initial complaint or from a date one year after the accrual of the cause of action, or from a date six (6) months after the effective date of this rule, whichever date is later.
      (g) This rule shall not apply to
      (1) eminent domain proceedings:
      (2) pending actions in which damages for delay are allowable in the absence of this rule.

      . This order was not appealable as it did not constitute final judgment. Pa.R.A.P. 301(c). We note from the record, however, that judgment was entered, and we will consider this appeal as taken from final judgment.

      . Appellant sets forth the statement of questions involved in his appellate brief as follows:
      Whether Rule 238 of the Pennsylvania Rules of Civil Procedure is unconstitutional for the following reasons:
      A. It is violative of the separation of powers doctrine set forth in the Pennsylvania Constitution.
      B. It is violative of due process of law under the U. S. Constitution and the Pennsylvania Constitution.
      C. It is violative of equal protection under the U. S. Constitution and the Pennsylvania Constitution.
      Brief for Appellant at 3.

      . In Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981) (Opinion by Chief Justice O’Brien), our supreme court said:
      Today we are called upon to determine the constitutionality of Pa.R.C.P. 238, promulgated by this Court pursuant to our constitutional rule-making authority. Rule 238 pertains to prejudgment interest granted in certain instances to plaintiffs who receive jury verdicts in excess of any settlement offer made by a defendant prior to trial. The trial court in the instant case held this rule to be unconstitutional and refused to remold the verdict in accordance with Rule, 238.
      This rule is attacked from several directions. The authority of the Supreme Court to formulate such a device as this is initially questioned. The rule is also subjected to allegations that it violates the standards of due process and equal protection as guaranteed by both the Pennsylvania and the United States Constitutions. We find that Rule 238 withstands all objections, and reverse the order of the trial court.

      . Pa.R.A.P. 2116(a) provides that “ordinarily no point will be considered [on appeal] which is not set forth in the statement of questions involved or suggested thereby.” Appellant’s brief contains a statement of the question involved as follows: “I. Whether Rule 238 of the Pennsylvania Rules of Civil Procedure is unconstitutional for the following reasons: A. It is violative of the separation of powers doctrine set forth in the Pennsylvania Constitution. B. It is violative of due process of law under the U. S. Constitution and the Pennsylvania Constitution. C. It is violative of equal protection under the U. S. Constitution and the Pennsylvania Constitution.”

      . A verdict for $250,000 was returned in favor of the plaintiff, Gary Havelka, and against the defendant, Joseph M. Sheraskey, and the additional defendant, Harry Pappas, Jr. The jury found that Sheraskey’s negligence was 93% and that Pappas’ negligence was 7%. The insurance carrier for Pappas had made a pre-trial settlement offer of $35,000. Because this was greater than 7% of the total verdict, the trial court assessed no damages for delay against Pappas. On the other hand, Allstate Insurance Company, the liability carrier for Sheraskey, had offered its policy limit of $50,000 at least eight months prior to trial and had forwarded a check in that amount. The offer was rejected. It was renewed at trial and again rejected. Nevertheless, the trial court entered a separate judgment against Sheraskey for delay damages in the amount of $25,000 because the portion of the verdict attributable to Sheraskey’s negligence (93% of $250,000) exceeded the policy limit offered ($50,000) by more than 125%.


author: BROSKY, Judge:

text:
    441 A.2d 1258
    COMMONWEALTH of Pennsylvania v. Pearlie DuBOSE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed Feb. 19, 1982.
    Petition for Allowance of Appeal Denied May 3, 1982.

      Harvey W. Robbins, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before SPAETH, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

Appellant, DuBose, was convicted of rape, criminal conspiracy, possessing instruments of crime generally, possession of prohibited offensive weapons and involuntary sexual intercourse. Post-verdict motions were denied and a sentence was imposed amounting to multiple current terms of imprisonment of l}h to 20 years for rape, l}/z to 20 years for involuntary sexual intercourse, 5 to 10 years for conspiracy, 2lh to 5 years for possession of an instrument of crime. We affirmed the imposition of the judgment of sentence in Commonwealth v. DuBose, 239 Pa.Super. 712, 357 A.2d 198 (1976) (allocatur denied).

DuBose now seeks relief under the Post Conviction Hearing Act, alleging ineffective assistance of counsel. After a hearing at which DuBose’s contentions were argued by new counsel, the P.C.H.A. court denied DuBose the relief he sought. DuBose appeals from that determination. We affirm the decision of the trial court.

Several questions, all concerning the effectiveness of trial counsel are raised on appeal. They are:

1. Was there a possibility of harm because the Defender’s Association of Philadelphia represented the appellant and one or more other persons involved in this criminal incident?
¿,2. Did defense counsel fail to provide competent representation in that he delayed interviewing and confirming the testimony of the alibi witnesses?
3. Did defense counsel fail to provide competent representation in that he failed to take photographs of the scene until six months after the incident?
4. Did defense counsel fail to provided (sic) competent representation inasmuch as he attempted to show the gang affiliation of alleged co-conspirators by introducing inadmissible Juvenile Court records rather than producing the alleged co-conspirators, or even attempting to produce them by subpoena, to testify about their gang affiliation?
5. Did the Court below err in not itself examining or in not allowing petitioner’s counsel to examine the files of the District Attorney, which were subpoenaed by petitioner’s counsel to enable petitioner’s counsel to investigate the harm caused by the Defender’s Association of Philadelphia representing one or more alleged perpetrators of the criminal incident?

In Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 234-235 (1981), our Supreme Court said:

“[BJefore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Hill, 427 Pa. 614, 617, 235 A.2d 347, 349 (1967), once it has been determined that the particular course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests, counsel will be deemed constitutionally effective. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Additionally, there is a presumption in the law that counsel is effective, Commonwealth v. Witherspoon, 481 Pa. 321, 392 A.2d 1313 (1978); Commonwealth v. Murray, 452 Pa. 282, 305 A.2d 33 (1973); thus, the burden of establishing ineffectiveness rests upon appellant. Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980); Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976).

Our Supreme Court noted in Commonwealth v. Westbrook, 484 Pa. 534, 400 A.2d 160 (1979), that the Public Defender’s Association of Philadelphia is a “law firm,” Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974), and as such, members of that office are prohibited from representing multiple clients who have inconsistent defenses. Thus, the law regarding conflicts of interest in dual representation, as stated in Commonwealth v. Breaker, 456 Pa. 341, 344-45, 318 A.2d 354, 356 (1974), is applicable:

Our dual representation cases make several principles clear. First, “[i]f, in the representation of more than one defendant, a conflict of interest arises, the mere existence of such conflict vitiates the proceedings, even though no actual harm results. The potentiality that such harm may result, rather than that such harm did result, furnishes the appropriate criterion.” Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 48,176 A.2d 641, 643 (1962). Second, a defendant must demonstrate that a conflict of interest actually existed at trial, because “dual representation alone does not amount to a conflict of interest.” Commonwealth v. Wilson, 429 Pa. 458, 463, 240 A.2d 498, 501 (1968); Commonwealth ex rel. Corbin v. Myers, 419 Pa. 139, 213 A.2d 356 (1965), cert. denied, 386 U.S. 1013, 87 S.Ct. 1361, 18 L.Ed.2d 445 (1967). Third, “[t]o make the dual representation rise to a true conflict, appellant need not show that actual harm resulted, . . . but he must at least show the possibility of harm . . . . ” Commonwealth v. Wilson, supra [429 Pa.] at 463, 240 A.2d at 501. Fourth, appellant will satisfy the requirement of demonstrating possible harm, if he can show, inter alia, “that he, had a defense inconsistent with that advanced by the other client, or that counsel neglected his case in order to give the other client a more spirited defense.” Id. Accord, Commonwealth v. Cox, 441 Pa. 64, 69, 270 A.2d 207, 209 (1970) (plurality opinion).

See also, Commonwealth v. Dockins, 263 Pa.Super. 164, 397 A.2d 798 (1979).

The alleged conflict of interest arises out of the representation by the Public Defender’s Association of Du-Bose and Charles Frazier, a juvenile, at hearings related to the same criminal incident. The record clearly indicates that Frazier’s defense was that he took no part in the crime. His trial attorney, Edward Crummett, stated

Having reviewed the material in the Frazier file I concluded that Mr. Frazier would not be and could not be helpful inasmuch as he denied any knowledge of the crime.

While DuBose also claimed no involvement in the crime, it is clear that the defense posed by Frazier and DuBose are not either inconsistent or that the Public Defender’s Association neglected DuBose’s case in order to give Frazier a more spirited defense. Hence, we are unable to find that dual representation in such a form which would establish that DuBose’s trial counsel provided him ineffective assistance.

DuBose also claims that his trial counsel was ineffective because “he delayed interviewing and confirming the testimony of . . . alibi witnesses.” Apparently, there was a delay of four months prior to interviews being made of Janice Brandt and Wells Eaves. Trial counsel stated at the P.C.H.A. hearing that Ms. Brandt stated to him that she had no knowledge involving the criminal incident. Trial counsel indicated that he interviewed Eaves, however, DuBose did not pursue any questions as to the substance of that interview. As we stated earlier, Frazier stated that he had no knowledge of the crime. Trial counsel never testified regarding DeJesus. We are obliged to hold that trial counsel acted effectively. DuBose has not established that trial counsel was ineffective. Hence, this contention has no merit.

Trial counsel sought to have photographs of the street lamps taken six months after the incident where DuBose took his victim prisoner entered into evidence. The trial court excluded the evidence. DuBose argues his trial counsel was ineffective in failing to take or have photographs taken earlier.

The trial court said when it excluded the evidence:

THE COURT: . . . [A]t this point your testimony is clearly not sufficient to have the photographs submitted into evidence. You don’t show the scene at the time of the incident.
MR. CRUMMETT: They show the scene generally some six months later.
THE COURT: But you are not trying to show the general scene. Pardon me for interrupting. You want to show specific lights and so on. And these pictures were taken some six months later. That’s clearly too distant in time, too remote in time.
MR. CRUMMETT: Is Your Honor accepting the argument that the City of Philadelphia goes around tearing down street lights?
THE COURT: You have no evidence in this record that those lights were or were not torn down. And I am not going to sit here and speculate on that point—stand here and speculate. If you want to produce evidence as to what the lighting was at the time, go ahead and produce it. I am telling you that you can’t do it with photographs taken six months later. That's totally too remote in time.
[Emphasis added].
So I sustain the objection as to that.

Nevertheless, there was no assertion leveled by DuBose that the failure of trial counsel to obtain the photographs earlier could have been used for cross-examination or in some other manner which would have resulted in any arguable inconsistency in the testimony of the victim, who identified DuBose. Commonwealth v. Walley, 262 Pa.Super. 496, 396 A.2d 1280 (1978). Thus, DuBose has failed to sustain his burden in the establishment of his trial counsel’s ineffectiveness.

Next, DuBose asks:

Did defense counsel fail to provide competent representation inasmuch as he attempted to show the gang affiliation of alleged co-conspirators by introducing inadmissible Juvenile Court records rather than producing the alleged co-conspirators, or even attempting to produce them by subpoena, to testify about their gang affiliation?

It is clear that the decision of the trial attorney not to call Frazier as a witness was reasonable because he knew Frazier would testify that he had no knowledge of the criminal incident. The record clearly indicates that the only other co-conspirator who may have been called was Dejesus. We are unable to find any evidence in the record to support DuBose’s argument that DeJesus would have stated any knowledge regarding the incident. In this context, we are unable to discern how the relative gang memberships of each of the co-conspirators would have successfully enhanced DuBose’s defense. We are unable to hold that DuBose’s trial attorney assisted him ineffectively.

Finally, DuBose claims that the P.C.H.A. court erred in failing to permit P.C.H.A. counsel to examine or to examine itself files of the District Attorney’s Office which P.C.H.A. counsel subpoenaed to determine whether a conflict of interest existed. As we have stated, it is the burden of the petitioner of the P.C.H.A. proceeding to establish the ineffectiveness of trial counsel.

In Cuyler v. Sullivan, 446 U.S. 335, 348-350, 100 S.Ct. 1708, 1718-1719, 64 L.Ed.2d 333, 346-347 (1980), the United States Supreme Court said:

In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. In Glasser v. United States, [315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942)], for example, the record showed that defense counsel failed to cross-examine a prosecution witness whose testimony linked Glasser with the crime and failed to resist the presentation of arguable inadmissible evidence. 315 U.S., at 72-75, 62 S.Ct. at 465-467. The Court found that both omissions resulted from counsel’s desire to diminish the jury’s perception of a codefendant’s guilt. Indeed, the evidence of counsel’s “struggle to serve two masters [could not] seriously be doubted.” Id. at 75, 62 S.Ct. at 467. Since this actual conflict of interest impaired Glasser’s defense, the Court reversed his conviction.
Dukes v. Warden, 406 U.S. 250, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972), presented a contrasting situation. Dukes pled guilty on the advise of two lawyers, one of whom also represented Dukes’ codefendants on an unrelated charge. Dukes later learned that this lawyer had sought leniency for the codefendants by arguing that their cooperation with the police induced Dukes to plead guilty. Dukes argued in this Court that his lawyer’s conflict of interest had infected his plea. We found “ ‘nothing in the record . . . which would indicate that the alleged conflict resulted in ineffective assistance of counsel and did in fact render the plea in question involuntary and unintelligent.’ ” Id, at 256, 92 S.Ct. at 1554, quoting 161 Conn. 337, 344, 288 A.2d 58, 62 (1971). Since Dukes did not identify an actual lapse in representation, we affirmed the denial of the habeas corpus relief.
Glasser established that unconstitutional multiple representation is never harmless error. Once the Court concluded that Glasser’s lawyer had an actual conflict of interest, it refused “to indulge in nice calculations as to the amount of prejudice” attributable to the conflict. The conflict itself demonstrated a denial of “[t]he right to have the effective assistance of counsel.” 315 U.S, at 76, 62 S.Ct. at 467. Thus, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. See Holloway, supra, 435 U.S, at 487-491, 98 S.Ct, at 1180-1182. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. See Glasser, supra, 315 U.S, at 72-75, 62 S.Ct, at 465-467.
(Footnotes omitted.)
The Supreme Court also stated:
Holloway [Holloway v. Arizona, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)] reaffirmed that multiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest. See 435 U.S., at 482, 98 S.Ct. 1173, 55 L.Ed.2d 426. Since a possible conflict inheres in almost every instance of multiple representation, a defendant who objects to multiple representation must have the opportunity to show that potential conflicts impermissibly imperil his right to a fair trial. But unless the trial court fails to afford such an opportunity, a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel. Such a presumption would preclude multiple representation even in cases where “ ‘[a] common defense . . . gives strength against a common attack.’ ” Id., at 482-483, 98 S.Ct. [1173,] at 1178, 55 L.Ed.2d 426, quoting Glasser v. United States, 315 U.S. 60, 92, 62 S.Ct. [457,] at 475, 86 L.Ed. 680 (1942) (Frankfurter, J., dissenting.)

Id. at 348, 100 S.Ct. at 1718, 64 L.Ed.2d at 346; see also, Commonwealth v. Pinhas, 282 Pa.Super. 341, 422 A.2d 1147 (1980).

In the instant case, DuBose did not object to multiple representation at trial. He raised his ineffectiveness claims for the first time at the P.C.H.A. proceeding. DuBose sought to subpoena the District Attorney’s files concerning their involvement in the prosecution of Frazier and DeJesus. The Commonwealth did not answer the subpoena and the P.C.H.A. court refused to order the Commonwealth to respond. The P.C.H.A. court’s decision was rendered prior to the Supreme Court’s decision in Cuyler, supra.

We are satisfied that DuBose was not denied “the opportunity to show that potential conflicts impermissibly imperiled his right to a fair trial.” Cuyler, supra, at 348, 100 S.Ct. at 1718, 64 L.Ed.2d at 346. DuBose failed to show that the Defender’s Association’s records established that it had represented DeJesus. Furthermore, the record indicates that the Defender’s Association’s file concerning Frazier revealed that while Frazier was also represented by the Defender’s Association, that he asserted a defense which was in no way inconsistent with that asserted in behalf of DuBose. In fact, both Frazier and DuBose asserted the same defense that they were not involved in the crime whatsoever.

The trial court did not err in failing to order the District Attorney’s office to produce files concerning Frazier and DeJesus. Such an order would have required the trial court to presume that the Defender’s Association files were inaccurate and that the District Attorney’s files would so indicate. We do not interpret Cuyler, supra, in a manner which requires such a result. The trial court provided DuBose with ample opportunity to demonstrate that an actual conflict of interest existed. DuBose simply failed to prove that such a conflict existed. Accordingly, the decision of the P.C.H.A. court was proper.

Order affirmed.

SPAETH, J., concurs in result.

      . 19 P.S. § 1180-1 et seq.

      . DuBose obtained new counsel for the first time of his PCHA proceeding hence he may now raise claims alleging his trial counsel was ineffective. Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978).

      . DuBose also asserted a conflict existed in the Public Defender Association’s representation of Louis DeJesus. The record does not support any claim that the Public Defender Association ever represented DeJesus.