author: OLSZEWSKI, Judge:

text:
    492 A.2d 1146
    COMMONWEALTH of Pennsylvania v. Donald Ray PINKSTON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Filed May 17, 1985.

      Paul D. Boas, Pittsburgh, for appellant.

      Daniel L. Howsare, District Attorney, Bedford, for Commonwealth, appellee.
    Before OLSZEWSKI, MONTGOMERY and LEDERER , JJ.

       Judge William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   OLSZEWSKI, Judge:

Donald Pinkston appeals from the judgment of sentence finding him guilty of receiving stolen property, 18 Pa.C.S. Sec. 3925, and sentencing him to' a term of probation.

The facts are as follows. On November 14, 1978 David L. Gonsman burglarized the property of Mr. Ralph E. Kostolnick, located in Bedford County. Among other items, Gonsman removed a Suzuki mini-bike from a shed on the property. Eight months later, between July 23, 1979 and July 27, 1979 Gonsman burglarized the property of Mr. Paul Mark, also located in Bedford County. Gonsman removed, among other items, several antiques and a lawnmower from the house and shed on the property.

On September 28, 1979 three complaints were filed charging appellant with receipt of stolen property from the Gonsman burglaries. On October 1, 1979 appellant was arrested and both the mini-bike and the antiques were found on his property and in his possession. Appellant was acquitted by jury of the charge relating to the Mark burglary at No. 197, 1979 in Bedford County. Subsequently, on March 25, 1980 appellant was tried and convicted on the charge of receiving stolen property relating to the Kostolnick burglary, at No. 198, 1980 in Bedford County. Following the denial of post-trial motions, this appeal is before us.

Appellant raises two issues: first, he argues that his trial counsel was ineffective for failing to move for dismissal of the charges on the basis of double jeopardy, collateral estoppel or a violation of 18 Pa.C.S. Sec. 110. We hold that there is no merit to this issue and that appellant was provided with effective assistance of counsel.

Appellant argues that all charges arose out of the same criminal episode and, therefore, that the Commonwealth was obliged to join the charges for trial under 18 Pa.C.S. Sec. 110 and Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973). Section 110 states in pertinent part:

When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or
(iii) the same conduct, unless:
(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil.
(2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.

18 Pa.C.S. Sec. 110.

Appellant’s argument turns on the definition of the term “same criminal episode,” and whether the burglaries of the two residences and alleged receipt of the stolen property were all part of one transaction. Our analysis is guided by the interpretation of the Pennsylvania Supreme Court in Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983):

The interpretation of the term “single criminal episode” must not be approached from a hypertechnical and rigid perspective which defeats the purposes for which it was created____ Thus, where a number of charges are logically and/or temporally related and share common issues of law and fact, a single criminal episode exists, and separate trials would involve substantial duplication and waste of scarce judicial resources. In such cases, failure to consolidate will bar successive prosecutions.

500 Pa. at 494, 458 A.2d at 183 (citations omitted).

We cannot say that the facts of this case fit within the definition of a “single criminal episode” under the most expansive interpretation. The burglaries occurred eight months apart. The complaint relating to the July burglary alleged that appellant received the stolen property between July 27, 1979 and August 10, 1979. The complaint relating to the November burglary alleged that appellant received the stolen property between November 14, 1978 and November 28, 1978. The two offenses are neither temporally nor logically related.

Appellant mistakenly focuses on the fact that arrest and recovery of the property on all charges occurred simultaneously. We are concerned with the dates of the commission of the offense. This case is distinguished from other fact situations in which a series of offenses took place over a relatively compressed period of time. Compare, Commonwealth v. Hude, supra (drug transactions with single individual over several weeks constitute “same criminal episode”); Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981) (possession of heroin and a gun at precisely the same time); Commonwealth v. Muffley, 493 Pa. 32, 425 A.2d 350 (1981) (possession of marijuana and LSD at the same time).

Our decision today conforms to the dual purposes of section 110:

(1) to protect a person accused of crimes from governmental harassment of being forced to undergo successive trial for offenses stemming from the same criminal episode; and
(2) as a matter of judicial administration and economy, to assure finality without unduly overburdening the judicial process by repetitious litigation.

Commonwealth v. Hude, 500 Pa. at 495, 458 A.2d at 180.

Here, appellant’s alleged receipt of stolen property occurred on dates eight months apart. Each receipt was part of a discrete constellation of facts unrelated to the other. Appellant’s interest in avoiding undue governmental harassment in the separate prosecution of the offenses is outweighed by the Commonwealth’s interest in securing justice for each distinct crime. Under the totality of circumstances of this case, we will not limit the Commonwealth’s discretion in the prosecution of its cases in an orderly fashion.

Nor does our disposition contravene the pursuit of administrative and judicial economy. The indictments could arguably have been joined for trial. Pa.R.Crim.P., Rule 1127, 42 Pa.C.S.; see Commonwealth v. Taylor, 299 Pa.Super. 113, 445 A.2d 174 (1982). Nevertheless, Rule 1127 is permissive in operation. Administrative and judicial economy are served by avoidance of confusion of facts to the jury and the minimizing of prejudice to appellant caused by cumulative charges.

Appellant argues, in the alternative, that each trial depended upon a jury determination of a single issue: whether he had the requisite knowledge that the property had been stolen. See 18 Pa.C.S. Sec. 3925. Appellant contends that the Commonwealth’s evidence of guilty knowledge, in both cases, rests on similar testimony by the same witnesses. Therefore, he urges, principles of double jeopardy and collateral estoppel bar retrial of the issue on which he was earlier acquitted. See Commonwealth v. Peluso, 481 Pa. 641, 393 A.2d 344 (1978).

We disagree. The records of both cases reveal that unique facts were adduced at each trial requiring the jury to independently determine whether appellant knew the property was stolen. The testimony included evidence that appellant, after receiving the mini-bike, commissioned to have it painted a different color. This case is distinguished from Peluso where appellant came into possession of all the stolen property (guns) at the same time, and therefore only one question of culpable knowledge existed through the series of trials. In the instant case, the juries made separate determinations of appellant’s knowledge. Compare Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

We hold that, absent merit to the underlying claim, appellant’s counsel was not ineffective for failure to move to dismiss. Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984).

Appellant’s second argument is that his trial counsel was ineffective in failing to object to a portion of the lower court’s instructions to the jury. We hold that the instructions were not in error and that appellant was not denied effective assistance, of counsel.

Appellant’s argument focuses on the trial court’s instruction that, if believed, the testimony of David Gonsman was sufficient for the jury to find appellant guilty of receiving stolen property. Appellant argues that Gonsman’s testimony simply revealed that appellant mentioned that he had repainted the mini-bike. Appellant contends that Gonsman’s testimony lacked any evidence that appellant knew that the mini-bike was stolen.

Knowledge that goods are stolen, or probably have been stolen, may be established by circumstantial evidence. Commonwealth v. Worrell, 277 Pa.Super. 386, 419 A.2d 1199 (1980). Here, Gonsman testified to his acquaintance with appellant at the service station where both occasionally worked prior to the offense. Notes of Testimony at 14. Appellant was in an adjoining room at the station while the burglary was planned. Notes of Testimony at 15. Appellant was present when some of the stolen property was unloaded behind the service station. Notes of Testimony at 19. Several weeks after the burglary, appellant complained to Gonsman about the cost of having the mini-bike repainted. The repainting, performed by the service station owner’s son, cost forty dollars. Notes of Testimony at 21. We hold that Gonsman’s testimony alone provided sufficient circumstantial evidence for the jury to find that appellant possessed guilty knowledge beyond a reasonable doubt.

Appellant’s counsel was not ineffective for failing to object to the jury instructions. Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984).

The judgment of sentence is affirmed.

      . Gonsman pleaded guilty to multiple charges of burglary and theft, including charges related to the instant case, and testified that he expected to receive favorable treatment for cooperating at the Pinkston’s trials. Notes of Testimony at 22-23.

      . See also Commonwealth v. Campana, 445 Pa. 622, 314 A.2d 854 (1974), cert. denied 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).

      . Appellant concedes that the property had been stolen and that it was within his possession.


source: Caselaw Access Project

license: Public Domain

text:
    492 A. 2d 1151
    COMMONWEALTH of Pennsylvania v. Raymond Earl WAY, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued March 18, 1985.
    Filed May 17, 1985.

      Theodore Simon, Philadelphia, for appellant.
    Charles Gutherie, Assistant District Attorney, Reading, for Com., appellee.
    Before OLSZEWSKI, MONTGOMERY and LEDERER , JJ.

       Judge William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   OLSZEWSKI, Judge:

Appellant challenges the order entered December 30, 1983 and the judgment of sentence entered November 30, 1983. By this appeal, he seeks to withdraw pleas of guilty entered on counts of possession with intent to deliver marijuana, hashish and methamphetamine. Appellant argues that the pleas are the poisoned fruit of an illegal search. The matter comes before us couched as a question of assistance of counsel. Appellant asks us to decide that he was denied effective assistance by trial counsel’s failure to move for suppression of physical evidence obtained in that allegedly illegal search. For the reasons below we agree. We therefore vacate the judgment of sentence and reverse the order denying appellant’s motion to withdraw his guilty pleas.

The facts of this case are succinctly stated in the lower court’s opinion:

On August 12, 1982, Pennsylvania State Trooper Richard Rabb purchased methamphetamine from Rebecca Missimer and David Rhoads near the Boyertown dam in Berks County, Pennsylvania. At 5:00 P.M. on August 25, 1982, in New Berlinville, Berks County, Pennsylvania, Rabb gave $170.00 in marked currency to Missimer and Rhoads for the purpose of having Missimer and Rhoads procure methamphetamine for Rabb, at that time agreeing to meet later in the day. This meeting was surveilled by a Sergeant Ziegler and a Trooper Makos. After the meeting ended, Ziegler and Makos followed Rebecca Missimer, who was driving a beige Volkswagen, to the intersection of Douglass Road and Pennsylvania Route 562 in Douglass Township, Berks County, Pennsylvania. There Missimer drove onto the roadside and parked. Shortly thereafter a blue van registered to defendant Raymond Way pulled beside the beige Volkswagen in which Missimer was sitting. Forty-five minutes later the two vehicles parted with Trooper Makos following the blue van a short distance to a residence at the corner of Douglass Road and Glendale Road in Douglass Township, Berks County, Pennsylvania.
Later at 8:05 P.M. on August 25, 1982, Rabb again met with Rhoads and Missimer for the purpose of receiving the methamphetamine for which he had earlier paid. Once delivery of the methamphetamine occurred, Ziegler and Makos, who had since resumed surveillance, arrested Rhoads and Missimer, while Rabb through field testing determined the delivered goods to be methamphetamine. Rhoads and Missimer were then taken to the Colebrookdale Township Municipal Building and given their Miranda rights. Afterwards Missimer related obtaining methamphetamine from defendant Way on a number of occasions in the past, further explaining that the methamphetamine which had just been received by Rabb was provided by defendant. Upon receiving this information, Makos determined by contacting Douglass Township Police that Raymond Way’s residence was situated where Makos observed the blue van returning after the rendezvous with Missimer.

The issue was preserved for appeal by counsel representing appellant after entry of his guilty pleas. That counsel, citing trial counsel’s ineffectiveness, filed a petition to withdraw appellant’s pleas. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975) (trial counsel’s ineffectiveness must be raised at earliest opportunity where defendant is not represented by same counsel).

To reach the question of effectiveness, we must first determine whether the physical evidence was seized in violation of appellant’s rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Appellant contends that the search was conducted pursuant to an invalid warrant. Specifically, he alleges that there were “insufficient facts within the affidavit to believe that contraband was located on the premises to be searched.”

The probable cause portion of the affidavit provided: At approximately 1705 hrs., this affiant did observe Tpr. Raab drive away from the alley-way behind said residence. A short time later this affiant observed Rebecca Missimer drive away from the alley-way in a beige VW, Pa. Reg # EBB-671. At this time this affiant and Sgt. Ziegler followed the VW west on PA 562. At the intersection of PA 562 and Douglas Rd. the VW vehicle turned left onto Douglas Rd. and pulled off the roadway approximately 200 yards south of PA 562. Approximately 5 minutes later a blue van, PA Reg # CX-33612 arrived and pulled next to the VW. The blue van was operated by a white male with glasses. Both vehicles stayed at said location for approximately 45 minutes. At approximately 1750 hrs., the blue van drove south on Douglas Road and the VW drove West on PA 562. This affiant followed the blue van to the intersection of Douglas Rd. & Glendale Rd. where subject pulled into a driveway located on the north East corner of Douglas & Glendale Rd.
A registration check with the Bureau of Motor Vehicles indicates that the blue van with PA Reg # CY-33612 is registered to Raymond Way, RD # 2 Boyertown, PA PO Box 520.
At this time, this affiant and Sgt. Ziegler drove to the Boyertown Water Dam located on Powder Mill Hollow Rd., in Earl Twp. Berks County, and did arrest Rebecca Missimer and David Rhoads at approximately 1815 hrs. for delivering approx. 2x/2 grams of methamphetamine Tpr. Richard Raab at said location. Said substance was field tested by Tpr. Raab and showed to be positive for methamphetamine.
Subjects Missimer and Rhoads were taken to the Colebrookdale Twp. Municipal Bldg, and charged with violation of the Penna Drug Laws, Act # 64, section 13(a), Clause 16 & 30. After given their constitutional rights by this affiant, Rebecca Missimer stated that she has obtained methamphetamine from Raymond Way a number of occasions in the past and she did meet with Raymond Way this date as the surveillance by this affiant and Sgt. Ziegler indicate, and she did purchase the above mentioned methamphetamine from subject Way for $130.00. Subject Missimer did state that she would contact Way via telephone (215-3670372) and would meet at a pre-arranged location for the drug transaction. This affiant contacted Sgt. Randy Doaty of the Douglas Twp. police department and he advised this affiant that subject Raymond Way does in fact live at the intersection of Douglas Dr. and Glendale Rd., in Douglas Twp., Berks County.

“It is well settled that for a search warrant to be constitutionally valid, the issuing authority must decide that probable cause exists at the time of its issuance.” Commonwealth v. Stamps, 493 Pa. 530, 535, 427 A.2d 141, 143 (1980). The determination of probable cause must be based on facts described within the four corners of the supporting affidavit. See Commonwealth v. Simmons, 450 Pa. 624, 626, 301 A.2d 819, 820 (1973); Pa.R.Crim.P., Rule 2003(a), 42 Pa.C.S.A. Within the four corners of the affidavit, we fail to find sufficient facts to permit an issuing authority reasonably to conclude that there was contraband at the premises to be searched.

The facts fairly summarized are that the informant arranged a drug transaction by phone. The alleged transaction occurred in a blue van along a country road. After the alleged transaction, police followed the blue van to a driveway of a property at the corner of Douglas Dr. and Glendale Rd. The informant identified appellant as the driver of the blue van. A police source told the affiant that appellant lived at the intersection of Douglas Dr. and Glendale Rd. The affidavit did not contain sufficient facts to believe that drugs would be found on the premises to be searched. Probable cause to believe that a man has committed a crime does not necessarily give rise to probable cause to search his home.

The instant case is controlled by this court’s decision in Commonwealth v. Kline, 234 Pa.Super. 12, 335 A.2d 361 (1975). There Judge Spaeth, writing for the majority, affirmed an order suppressing evidence obtained pursuant to a search warrant. The court reasoned that, even though the affidavit contained facts sufficient to establish an individual was dealing in drugs, it failed to establish that the individual kept the drugs in his apartment. In Kline, the informants stated “they (had) asked him for some L.S.D. and he went to his apartment at 9th and Robinson and returned a few minutes later with two ‘hits’ of ‘blotter acid’ (L.S.D. on small pieces of paper).” 234 Pa.Super. at 14, 335 A.2d at 362. The Kline court considered that statement:

(A)s far as appears from the affidavit, none of the informants said where the L.S.D. was. The girls apparently concluded that it was in Arthur’s apartment. However, an affidavit must set forth how information leading to such a conclusion was obtained. Commonwealth v. Ambers, 225 Pa.Super. 381, 310 A.2d 347 (1973); Common wealth v. Soychak, 221 Pa.Super. 458, 289 A.2d 119 (1972).

234 Pa.Super. at 17, 335 A.2d at 364. The Court continued:

Probable cause to believe that a man has committed a crime on the street does not necessarily give rise to probable cause to search his home. Judge Hess stated the matter well in his memorandum opinion: “In our opinion an allegation based on an assumption or supposition not supported by the facts is insufficient to support (an inference of) criminal activity in a premises, in spite of the fact that there are plenty of allegations alleged to relate to criminal activity of the individual who is alleged to have lived in the premises.”

Id. In the case at bar, the lack of a substantial nexus between the street crime and the premises to be searched renders the warrant facially invalid.

We distinguish this case from Commonwealth v. Frye, 242 Pa.Super. 144, 363 A.2d 1201 (1976). In Frye, the confidential informant told police that he had seen Frye sell a kilo of marijuana to a third party. Frye had told the third party “if he needed anymore, to call him (Frye) after 10:30 P.M., 2-22-75 and no later than 1:30 A.M., 2-23-75 because this would be the best hours to catch him at home because he would be out taking care of business.” Id., 242 Pa.Superior Ct. at 146, 363 A.2d at 1203. The Frye court acknowledged Kline but distinguished it. Judge Cercone, for the majority wrote “the nexus between the evidence to be seized and the place to be searched was provided by Frye’s admission that he was conducting at least part of his unlawful operations from his home.” Id., 242 Pa.Superior Ct. at 149, 363 A.2d at 1204. In the instant case, the mere recitation of a phone number (“215 — 3670372”) absent even an averment to tie the number to the premises to be searched falls far short of the nexus required under Kline and Frye.

The lower court conditioned withdrawal of the guilty pleas on a finding of no probable cause. Concluding that a clear nexus existed, that court denied appellant’s motion to withdraw his guilty pleas. For the reasons above, we find that the nexus was not established. The search conducted pursuant to an invalid warrant, we order the evidence seized as a result of the search suppressed. We vacate the judgment of sentence and allow appellant to withdraw his pleas. Case remanded for proceedings consistent with his opinion. Jurisdiction relinquished.


author: DEL SOLE, Judge: POPOVICH, Judge,

text:
    492 A.2d 1155
    ESTATE OF Lora M. COLUCCI. Appeal of William COLUCCI, Individually, and William A. Colucci, As Administrator of the Estate of Ada N. Colucci, Deceased.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1984.
    Filed May 17, 1985.

      John J. Hovan, Tunkhannock, for appellants.
    Raymond C. Davis, Susquehanna, for appellee.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   DEL SOLE, Judge:

This case results from the Common Pleas Court’s refusal to allow an appeal from the granting of letters and admission to probate of the Estate of Lora Colucci. Appellant’s claim was found to be untimely, under 20 Pa.C.S.A. 908(a), filed the 366th day following the Register of Wills admitting the will into probate.

The facts as set forth by the Common Pleas Court are:

Decedent died on March 4, 1981; a will dated October 12, 1978 was duly admitted to probate in the Register of Wills Office ... on March 10, 1981. Letters were granted to Louise Benson on March 10, 1981. On May 4, 1981, the Appellant, William Colucci, brother of the decedent, through one of his attorneys, John J. Hovan, Esquire, notified the attorney for the estate that he intended to file two claims against the estate: one for personal property and one for real estate of which decedent died seized.

Appellant took out letters of administration in the estate of his mother, Ada N. Colucci, who died intestate on March 31, 1978, and who had lived with the decedent, Lora Colucci. Letters were issued in the Ada Colucci estate of March 8, 1982.

Pursuant to 20 Pa.C.S.A. § 908(a), Appellant filed a notice of appeal, both as an individual and as administrator of his mother’s estate. The notice was dated March 11, 1982, and alleged fraud, forgery and undue influence.

Appellant maintains that because he alleged fraud, forgery and undue influence in his notice of appeal, the statutory limit of one year should not apply.

The trial court relied on Bunce v. Galbrath, 268 Pa. 389, 112 A. 143 (1920), where the Pennsylvania Supreme Court said:

“Where a last will has been admitted to probate, the legal presumption at once arises that the will so probated is a last will, and is the free and voluntary expression of the testator, of sound and disposing mind and understanding, as to the disposition the testator desired to make of his property upon his death. Where the decree of the register is unappealed from within the period allowed for such appeal, the legal presumption becomes conclusive, and it makes an end to questions passed upon, or within the jurisdictional power of the register of consider, touching the validity of the will.” Bunce v. Galbrath, 268 Pa. 389, 392, 112 A. 143 (1920). See also, Estate of Shelly, 463 Pa. 430, 345 A.2d 596 (1975).

The Court, however, held in Culbertson’s Estate, 301 Pa. 438, 152 A. 540 (1930), that where fraud was practiced upon the Register of Wills, an appeal was permissible after the statutory period had passed. A will that was forged would be a fraud upon the Register of Wills and would affect his jurisdiction to grant letters on that will. Alternatively, the Court refused to allow a similar appeal based on undue influence where it was determined, under Bunce, that this fraud was known or should have been known during the statutory period. In Re Estate of Kiger, 487 Pa. 143, 409 A.2d 5 (1979). Appellant’s claim of undue influence, therefore, would not withstand the running of the statutory period.

Appellant specifically relies on In Re Estate of Kirkander, 490 Pa. 49, 415 A.2d 26 (1980), where the Court permitted an appeal based on the alleged forgery of a will after the statutory period had run. The Court accepted all of the opposing party’s well-pleaded allegations as being true and found that the “attack upon a forged document on the ground of fraud is not barred by the statute of limitations.” Kirkander, 490 Pa. at 52, 415 A.2d at 28. Accordingly, that Court remanded for an evidentiary hearing on the existence of fraud in the presenting of a forged will to the Register.

The trial court dismissed the Notice because although fraud, and forgery were alleged and would toll the statute, nothing was specified in the notice to substantiate the claim. We are inclined to remand for an evidentiary hearing on the issue of forgery of the will and fraud practiced on the Register in presenting the will as authentic. We cannot determine from the Notice whether Appellant alleges that there was a forgery of the will admitted to probate amounting to fraud on the Register of Wills sufficient to toll the one-year statute of limitations. Accordingly, we must remand to afford Appellant the opportunity to amend his Notice specifying his allegations and for an appropriate evidentiary hearing on the existence of forgery in the signature of the will admitted to probate.

Reverse and remand for proceedings consistent with this opinion.

Jurisdiction relinquished.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I cannot join in what amounts to a pro forma reversal and remand by the Majority of the Orphans’ Court’s dismissal of appellant’s appeal of the Register of Will’s probate of Lora M. Colucci’s Will.

Despite the appropriateness of the procedure followed by appellant in appealing to the Orphans’ Court from the Register’s actions, I would find that the Majority acts precipitously in remanding solely on appellant’s bald allegation that the “appeal w[as] ... based on undue influence, fraud and forgery.” This is especially so in the absence of any pleadings, interrogatories or depositions accompanying or preceding the filing of the notice.

As noted by the Majority, our Supreme Court in In re Estate of Kirkander, 490 Pa. 49, 415 A.2d 26 (1980) accepted as true appellants’ allegation that a Will admitted to probate was a forgery, and, therefore, reversed and remanded for an evidentiary hearing on such a claim. However, of importance in Kirkander, which seems to be glossed over by the Majority here, is the fact that the appeal to the Orphans’ Court was accompanied by a petition in which appellants asserted that the signatures of the testator and a witness were forgeries. It is in this context that our Supreme Court wrote:

In considering appellee’s petition to dismiss without either a responsive pleading or an evidentiary hearing, the court below was compelled to accept as true appellants’ allegation that the [WJill admitted to probate ... was a forgery, see Blumer v. Dorfman, 447 Pa. 131, 289 A.2d 463 (1972); Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970); Goldman v. McShain, 432 Pa. 71, 247 A.2d 455 (1968) (in considering preliminary objections in the nature of a demurrer, the court must accept as true all of the opposing party’s well-pleaded allegations ), and attack upon a forged document on the ground of fraud is not barred by the statute of limitations. Thus, on the present record, Section 908 of the P.E.F. Code would not bar appellants’ challenge and the court below erred in so holding. Accordingly, this matter must be remanded to the Orphans’ Court Division for an evidentiary hearing.

490 Pa. at 52, 415 A.2d at 28 (Footnote omitted) (Emphasis added).

Instantly, unlike in Kirkander, the party attacking the Will nowhere asserts the basis for his fraud and forgery allegations, i.e., whether the signature of the testatrix or that of either subscribing witness is forged. Instead, Colucci’s counsel neglects to give one any insight as to the substance of the claims.

Just as a defendant in a criminal context, when represented by counsel, waives his right to complain about a particular ruling by a court if assailed in a “boiler-plate” fashion, see Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) (en banc), so too does a litigant on the civil side loose his right to assault the propriety of a ruling where his claim fails to allege with specificity the gravamen of his complaint. See, e.g., Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). To hold otherwise will invite practitioners to dispense with the submission of concise and substantive pleadings and/or petitions herein expected by the judiciary at all levels of appeals. Also, any laxity in this requirement might be the harbinger of an era as to pleadings which for so long plagued the criminal area, see Commonwealth v. Santana, 321 Pa.Super. 299, 468 A.2d 488 (1983) (POPOVICH, J.), and necessitated a host of exceptions to be carved out by the courts in an effort to preserve for review issues technically waived under settled law. Id. Finally, this amalgam of cases and exceptions was laid to rest in Chief Justice Eagen’s lead opinion in Commonwealth v. Gravely, 496 Pa. 194, 404 A.2d 1296 (1979).

I seek to avoid such a web of procedural entanglement by simply holding that appellant’s “boiler-plate” allegations of fraud and forgery, left unsubstantiated, fall short of preserving an attack on the probate of Lora M. Colucci’s Will. Thus, I would affirm the holding of the Orphans’ Court.


author: WATKINS, Judge:

text:
    492 A.2d 1158
    COMMONWEALTH of Pennsylvania v. Dennis B. PERRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 4, 1985.
    Filed May 17, 1985.

      Thomas G. Klingensmith, Assistant Public Defender, Elizabethtown, for appellant.
    Cheryl A. Ondechek, Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before ROWLEY, WATKINS and GEISZ, JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania is sitting by designation.

   WATKINS, Judge:

Appellant, Dennis B. Perry, was adjudged to be in violation of probation, and was sentenced to a term of imprisonment of not less than nine (9) months nor more than twenty-three (23) months in the Lancaster County Prison. He was ordered to pay the original fine and to pay costs. This sentence was to run consecutively to any sentence appellant was serving.

On appeal, appellant contends that the term of the sentence is excessive because the sentencing court failed to take into consideration the drug and alcohol problem of the appellant.

The Sentencing Code, 42 Pa.C.S.A. 9701, et seq., sets forth guidelines and principles to be followed in sentencing decisions. Section 9771 is concerned with the modification or revocation of orders of probation. The power to revoke an order of probation is provided for in Section 9771(b).

The court may revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.

At the time that the judge imposes sentence following revocation of probation, he or she must articulate on the record the reasons for the particular sentence imposed and these reasons should reflect the judge’s consideration of the criteria enumerated in the Sentencing Code, as well as the circumstances of the offense and the character of the offender. However, the judge is not required to list the criteria of the Sentencing Code and detail his or her response to each. Commonwealth v. Aldinger, 292 Pa.Superior Ct. 149, 436 A.2d 1196 (1981).

It is well-settled principle that imposition of a proper sentence is a matter committed to the sound discretion of the court and the court’s determination will not be disturbed unless the sentence exceeds the statutory maximum or is so excessive as to constitute a manifest abuse of discretion. Commonwealth v. Scarborough, 313 Pa.Superior Ct. 521, 533, 460 A.2d 310, 316 (1983).

A limitation has been placed on the right to impose a sentence of total confinement upon the revocation of probation. Section 9771(c) of the Sentencing Code provides:

The Court shall not impose a sentence of total confinement upon revocation unless it finds that:

(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court.

Nowhere is it stated that a defendant’s drug or alcohol problems mandate that he be given a lesser sentence for his crimes due to such a condition.

At the time of sentencing, the judge had considered the criminal actions of the appellant while on probation (seven new offenses on three different occasions to which defendant pled guilty), along with his age, character, educational background, work history as well as the Sentencing Guidelines and the Sentencing Code. We can find no abuse of discretion by trial court in imposing this sentence.

Judgment of sentence affirmed.


author: HOFFMAN, Judge:

text:
    492 A.2d 1159
    COMMONWEALTH of Pennsylvania v. Joseph COIA, Appellant.
    Superior Court of Pennsylvania.
    Argued March 22, 1985.
    Filed May 17, 1985.

      Richard R. Fink, Levittown, for appellant.
    William F. Mabon, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before BECK, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends, inter alia, that the trial court erred in excluding evidence of the victim’s claims of past sexual attacks pursuant to Pennsylvania’s Rape Shield Law, 18 Pa.C.S.A. § 3104. We disagree and, accordingly, affirm the judgment of sentence.

The pertinent facts are succinctly set forth in the lower court’s opinion as follows:

[The fifteen year old victim] testified that on the morning of June 2, 1981, she walked to the Coia residence to meet her friend, Joanne Coia, the daughter of Defendant. [The victim] testified it was her habit to meet Ms. Coia and walk with her to their school bus stop. On this particular morning [the victim] was a little late in arriving at the Coia home, and Defendant told her that his daughter had already left for school. He then offered to drive [the victim] to the bus stop, and, as it was raining that morning, [the victim] accepted Defendant’s offer of a ride in his yellow Corvette with the vanity license plate, COIA.
Defendant did not drive in the direction of the bus stop. When asked by [the victim] where he was taking her, Defendant replied that he was taking her to school as it was on his way to work. Instead, at approximately 7:05 a.m., Defendant drove the victim to a shopping center across the street from her school. At that point, Defendant parked the car and unzipped his pants. He then placed his hands on the victim’s head, pushed her head down to his groin, and forced her to perform oral sex on him. Afterwards, Defendant drove [the victim] to her school, dropped her off there and told her not to tell anyone what had happened. A friend of the victim saw her being dropped off at school that morning by a man in a yellow Corvette with vanity plate, COIA, thus effectively negating a so called alibi witness called by the defense.

[The victim] testified that she arrived at school at approximately 7:15 a.m. Immediately upon her arrival she told a friend, Anita Pitera, about the sexual attack. Later that morning the victim also related the details of the incident to her teachers, Sister St. Kathleen and Father Thomas Herron, and to her mother, ---- The police were called and also that morning took a statement from the victim.

(Lower Court Opinion at 1-2). On September 23, 1981, appellant was convicted by a jury of involuntary deviate sexual intercourse, indecent assault and corruption of a minor. Post-verdict motions were timely filed and denied. Appellant was subsequently sentenced to a term of imprisonment of one-to-four years. This appeal followed.

In the court below, appellant offered to show through the testimony of Joanne Coia that, on past occasions, the victim had made repeated and unbelievable claims of sexual attacks upon herself by others and may have engaged in a course of conduct evidencing consent to sexual relations with appellant. Appellant relies upon an affidavit signed by Joanne Coia, which was attached to his omnibus pretrial motions and which contained the following allegations: (1) in March of 1981, the victim told Joanne Coia that shortly before, on an evening when the victim was up late in her own home, her older brother was drunk, began chasing her and trying to take her clothes off and attempted to rape her; (2) in either April or May, 1981, the victim told Joanne Coia that when she was staying with her parents and her cousin, her grandfather started “making passes” at her and asked her “Why don’t you go to bed with me”; and (3) in March or April of 1981, the victim told Joanne Coia that Anita Pitera had told the victim that Anita’s cousin had raped her (Anita). Joanne Coia believed that Anita never told such information to the victim. The trial court refused to admit the affidavit into evidence because such evidence was irrelevant and prohibited by section 3104 of the Rape Shield Law.

Section 3104(a) expressly provides that:

Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

18 Pa.C.S.A. § 3104(a). Under this statute, we think it clear that the lower court properly excluded appellant’s proffered testimony.

In so holding, we find that this Court’s recent decision in Commonwealth v. Black, 337 Pa.Superior Ct. 548, 487 A.2d 396 (1985), is inapplicable to the instant case. In that case, we narrowly held that it was constitutionally impermissible to exclude, under the Rape Shield Law, evidence of prior sexual conduct with third persons, offered to reveal a specific bias against the accused and therefore a motive to make a false accusation, so as to deny the accused the right of confrontation. This holding was analogous to the ruling in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), which held that the shield protecting a juvenile against exposure of his prior record could be pierced where that record could provide exculpatory evidence relating to an adult co-defendant. In effect, the defendant’s right to liberty was held to be superior to a juvenile co-defendant’s right of confidentiality.

Here, however, the evidence in question would not have exculpated appellant, was clearly irrelevant to appellant’s alibi defense, and would have unnecessarily prejudiced the victim by permitting unproven allegations of prior sexual activity with third parties to be presented before a jury.

Accordingly, we affirm the judgment of sentence.

Affirmed.

      . Appellant raises additional claims of trial court error and prosecutorial misconduct. We find that these issues are meritless and have been adequately disposed of in the lower court’s opinion.

      . Even if appellant had proceeded under a consent theory of defense, we note that the offense of involuntary deviate sexual intercourse is statutorily defined so as to make consent irrelevant where the victim is less than sixteen years of age. See 18 Pa.C.S.A. § 3123(5). Here, the victim was fifteen years old. Moreover, under Commonwealth v. Black, supra, evidence of sexual conduct with third persons is irrelevant to prove consent of the victim. 337 Pa.Superior Ct. at 559, 487 A.2d at 401-02.


author: HESTER, Judge:

text:
    492 A.2d 1162
    COMMONWEALTH of Pennsylvania, Appellant, v. George Richard MILLS.
    Superior Court of Pennsylvania.
    Argued March 5, 1985.
    Filed May 17, 1985.

      Howard W. Bischoff, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.

      Dwight L. Koerber, Jr., Clearfield, for appellee.
    Before OLSZEWSKI, HESTER and SHIOMOS, JJ.

       Judge Thomas N. Shiomos, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   HESTER, Judge:

This appeal is from an order of the Court of Common Pleas of Clarion County holding that appellee, George Richard Mills, could not be penalized under 75 Pa.C.S.A. § 4945(b) for operating his tractor trailer combination at a gross weight in violation of 75 Pa.C.S.A. § 4943(b). In support of its order, the lower court held that the application of § 4945(b) to this particular weight violation abridged equal protection of the law. Although not for the reasons relied upon by the lower court, we affirm.

Appellee is a truck driver employed by Butler Trucking Company of Woodland, Clearfield County, Pennsylvania. On June 7, 1982, appellee was operating a 1976 White Freight,!iner tractor, pulling a flatbed trailer carrying refractories. Appellee was operating his tractor/trailer unit, which was registered with the Department of Transportation at a maximum gross weight of 80,000 lbs., on Interstate Highway 80 in Clarion County when he was ordered by state police to stop at a weigh station.

Appellee’s unit contained five axles. One axle served as the steering axle and the remaining four axles were situated in two groups of two axles. The first group was placed at the rear of the tractor, and the second group was placed at the rear of the trailer. The gross weight on these two groups of axles exceeded by 6,900 lbs the limit allowed by § 4943(b)(1). The weight limit in § 4943(b)(1) is calculated by the “bridge formula” which involves the distance between the extreme axles in the two groups and the number of axles in a group. Having found an overload of § 4945(b) of $1,115.00.

6,900 lbs., the state police imposed a fine calculated by

Appellee was found guilty by a district justice and subsequently filed an appeal to the Court of Common Pleas of Clarion County. Appellee did not challenge the propriety of the weighing procedure nor did he contest the guilty verdict. He conceded that he was systematically stopped and that the actual weighing was properly conducted by a duly certified law enforcement team. Rather, appellee asserted that the penalty provision of § 4945(b) did not apply to weight violations calculated by the “bridge formula” of § 4943(b)(1).

The lower court agreed, ruling that penalties imposed under § 4945(b) apply solely to violations of § 4943(a). This latter section provides maximum weights for individual axles. Section 4945(b) is subject to the driver’s right to reduce or readjust the load, which, according to the lower court, may enable him to escape penalty. The lower court noted that whether the driver readjusts his load will not affect his violation of the “bridge formula.” This formula calculated the weight dispersed over all weight-carrying axles on appellee’s unit. Any readjusting would not avoid a violation. Therefore, the court concluded that section 4945(b) could not apply to “bridge formula” violators because it was impossible to avoid penalty by readjusting the load. To apply the penalty of § 4945(b) to “bridge formula” violators would result in the denial of equal protection of the law.

The Commonwealth filed this appeal. The Commonwealth argues that the “bridge formula” violation is independent of the right to adjust the load. The Commonwealth also notes that there was no evidence that appellee was denied the right to adjust the load.

We do not believe that this case is properly decided on constitutional grounds or by whether appellee was denied the opportunity to reduce or readjust the load. Instead, the issue of whether penalty § 4945(b) applies to “bridge formula” violations is solely determined by statutory construction.

The “bridge formula” of § 4943(b) was promulgated in 1980 for the purpose of determining gross weight distributed over groups of axles. Without this formula, a motorist operating a heavily loaded vehicle could simply add axles to the tractor or trailer, thereby reducing the weight over any one axle and avoiding single axle violations of § 4943(a). If the vehicle did not violate vehicle gross weight provisions of § 4941, an otherwise excessively loaded vehicle would escape all weight violations. With factors concerning number of axles and distance between the extreme axles of groups of axles, the “bridge formula” closes this significant loophole.

In drafting the violation provision of § 4943(b), the General Assembly failed to draft a corresponding penalty provision. We therefore agree with appellee that penalty § 4945(b) does not apply to “bridge formula” violations.

First, § 4945(b) was not drafted with § 4943(b) in mind; it was promulgated prior to the enactment of § 4943(b), and no amendments provided § 4945(b) penalties for § 4943(b) violations.

Next, § 4945(b) fines “any person operating a vehicle or combination with a weight on an axle or pair of axles exceeding the maximum axle weights allowed by section 4943____” Appellee violated § 4943(b)(1) for having “an overall gross weight on any group of two or more consecutive axles in excess” of that allowed by the “bridge formula.” Under the Statutory Construction Act of 1972, “[w]hen the words of the statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 P.S. § 1921(b). Insofar as § 4945(b) establishes fines for excessive weights on “axles” or a “pair of axles”, it would be incongruous to extend it to a “group of two or more consecutive axles.” The words of § 4945(b) are clear; we will not expand their meaning to include violations of the “bridge formula.”

We conclude that appellee can only be fined under 75 Pa.C.S.A. § 6502 which provides a $25.00 fine for summary offenses not addressed by specific penalty provisions. We note that this fine does not reflect the serious weight violation committed by appellee; nevertheless, in its present condition, the Vehicle Code does not provide a more appropriate penalty.

Order affirmed.

      . Under § 4945(b), the fine is "$100.00 plus $100 for each 500 pounds, or part thereof, in excess of 2,000 pounds over the maximum axle weight.”

      . We are not imposing a fine of $25.00 as the only issue before us is whether § 4945(b) is the applicable penalty section.


author: PER CURIAM:

text:
    492 A.2d 1164
    COMMONWEALTH of Pennsylvania v. David ROBINSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 22, 1985.
    Filed May 17, 1985.
    John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before POPOVICH, WATKINS and LIPEZ, JJ.
   OPINION

PER CURIAM:

Judgment of sentence is vacated and the case remanded to the lower court to determine whether the failure to file Post-trial motions was the result of an intelligent waiver or whether it was due to counsel’s negligence despite appellant’s request that he file them.


text:
    492 A.2d 1165
    Veronica LEWCHENKO, Administratrix of the Estate of Christopher Lewchenko, and Veronica Lewchenko and John Lewchenko, Individually and as Representatives of a Class, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Filed May 17, 1985.

      John T. Tierney, III, Pittsburgh, for appellants.
    Frank M. Gianola, Pittsburgh, for appellee.
    Before CIRILLO, HOFFMAN and ROSENWALD, JJ.

      . Judge Edward Rosenwald of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   PER CURIAM:

This is an appeal from the lower court order granting summary judgment in favor of appellee. We affirm.

Appellants’ decedent was killed in a motor vehicle accident on April 26, 1976. On October 8, 1982, appellant, Veronica Lewchenko, filed a complaint in assumpsit against appellee, State Farm Mutual Automobile Insurance Company, seeking post-mortem work loss and survivor’s benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. §§ 1009.101 et seq. On January 7, 1983, the lower court granted appellant’s motion to amend by (1) adding an additional plaintiff, John Lewchenko, as a surviv- or of the decedent’s estate; and (2) converting the complaint into a class action on the survivors benefits issue. On January 10, 1984, appellee’s motion for summary judgment was granted, thereby prompting this appeal.

We initially find that, because neither no-fault nor survivor’s benefits have been paid and appellants’ action for survivor’s benefits was not filed within one year of the decedent’s death, summary judgment was properly granted against appellants on that claim. See 40 P.S. § 1009.-106(c)(2); Fusco v. Keystone Insurance Co., 312 Pa.Superior Ct. 471, 474-75, 458 A.2d 1390, 1391-92 (1983). Similarly, because no-fault benefits have not been paid and appellants’ action for post-mortem work loss benefits was not filed within four years of the accident (the maximum allowable time within which to bring an action to recover these benefits), we find that summary judgment was also properly entered against appellants on that claim. See 40 P.S. § 1009.106(c)(1); Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 541, 469 A.2d 1382, 1384 (1983).

Appellants contend, however, that the November 15, 1979 commencement of a class action in Dauphin County seeking post-mortem work loss benefits from thirty-one insurance carriers, see Nye v. Erie Insurance Exchange, 504 Pa. 3, 470 A.2d 98 (1983), tolled the four-year statute of limitations. In support of this argument, they rely upon American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Because appellants are raising this issue for the first time on appeal, however, we may not consider it. Vend-A-Matic, Inc. v. Frankford Trust Co., 296 Pa.Superior Ct. 492, 499, 442 A.2d 1158, 1162 (1982). At oral argument counsel for appellants argued that their motion to transfer this case to the pending class action in Dauphin County sufficiently put the issue before the lower court. We cannot agree. Nowhere in that motion is the tolling issue raised or even remotely suggested, nor is American Pipe cited anywhere therein. Accordingly, we affirm the order of the lower court.

Affirmed.

        . The No-Fault Act has since been repealed. See Act of February 12, 1984, P.L. 26, No. 1984-11, as amended by Act of February 12, 1984, P.L. 53, No. 1984-12.

      . We need not decide the applicable statutory period of limitations here because it is clear that, even assuming that the four-year period applies, appellants are time-barred from pursuing their post-mortem work loss claim.


author: WIEAND, Judge:

text:
    492 A.2d 1166
    ESTATE OF Anna BURIAK, Appellee, v. Annie SPERL and Edward G. Sperl, her husband, Appellants.
    Superior Court of Pennsylvania.
    Argued March 4, 1985.
    Filed May 24, 1985.

      John B. McCue, Kittanning, for appellants.
    Frederick L. John, II, Kittanning, for appellee.

      Before BROSKY, WIEAND and LEDERER, JJ.

       The Honorable William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WIEAND, Judge:

The subject of this equity action was a deed executed March 2, 1979 by Anna Buriak, widow, to her daughter, Annie Sperl, and her son-in-law, Edward Sperl, purporting to convey a dwelling and tavern. Mrs. Buriak had lived in the dwelling with her daughter and son-in-law, who had also operated the tavern, from 1972 to 1979. On April 30, 1979, Mrs. Buriak filed a complaint in equity to set aside the deed. After her death at the age of 81 on March 14, 1980, the personal representative of her estate was substituted as plaintiff in the action. The trial court found as a fact that Mrs. Buriak had been suffering from arteriosclerosis at the time of executing the deed and that as a consequence she had undergone alternating periods of lucidity and also of bewilderment and confusion. Because of her weakened mental condition, she had come to rely almost entirely upon her daughter and son-in-law for her care. She had relied upon them not only to provide her daily needs but also to tend to her business affairs. Of necessity, therefore, she had come to place absolute trust in her daughter and son-in-law. Because a confidential relationship had existed between the grantor and grantee and because the grantees had failed to show the absence of undue influence, the court concluded that the deed should be set aside as a product of undue influence. This appeal followed. We affirm.

The findings of a chancellor in equity, if supported by the evidence, will not be disturbed on appeal. Kazanjian v. New England Petroleum Corporation, 332 Pa.Super. 1, 4, 480 A.2d 1153, 1155 (1984). Here, the evidence supported the finding that Anna Buriak had become completely dependent upon her daughter and son-in-law and that she had trusted them to attend to her affairs. From this the court could properly conclude that there had existed a confidential relationship.

Although no precise formula has been devised to ascertain the existence of a confidential relationship, it has been said that such a relationship is not . confined to a particular association of parties, but exists whenever one occupies toward another such a position of advisor or counselor as reasonably to inspire confidence that he will act in good faith for the other’s interest.

Estate of Keiper, 308 Pa.Super. 82, 86, 454 A.2d 31, 33 (1982), quoting Silver v. Silver, 421 Pa. 533, 537, 219 A.2d 659, 662 (1966).

Where a confidential relationship is shown to exist, the burden is upon the dominating party to a transaction to prove by clear and satisfactory evidence that the agreement or deed was the free, voluntary and independent act of the other party, entered or executed with a knowledge and understanding of the nature, terms and consequences thereof. The dominating party has the burden of proving that the transaction was unaffected by undue influence, imposition, deception or fraud. Kees v. Green, 365 Pa. 368, 375, 75 A.2d 602, 605 (1950). Thus, in the instant case, the burden was upon the grantees to show that the deed had been the voluntary and independent act of the grantor, unaffected by undue influence or imposition. Appellants’ evidence in this respect was inadequate. The evidence showed that Mrs. Sperl arranged to have the deed prepared by her attorney and obtained her mother’s signature thereon despite an expressed desire by her mother that all the children should share equally therein. In this respect it is also significant that Mrs. Sperl arranged to have the deed acknowledged by a notary public who was not present at the time of execution and did not thereafter speak with the grantor to ascertain whether the conveyance had been her voluntary act and deed. Under these circumstances the trial court could properly cause the deed to be set aside as a product of undue influence.

Order affirmed.


author: JOHNSON, Judge:

text:
    492 A.2d 1382
    Larry C. HOFFMAN v. MEMORIAL OSTEOPATHIC HOSPITAL and John Battalino, Individually and as an Agent at Memorial Osteopathic Hospital. Appeal of Larry C. HOFFMAN at No. 396 Harrisburg, 1982. Appeal of John BATTALINO, D.O. at No. 397 Harrisburg, 1982.
    Superior Court of Pennsylvania.
    Argued Aug. 16, 1984.
    Filed May 10, 1985.

      Donald L. Reihart, Assistant District Attorney, York, for appellant (at 396) and appellee (at 397).
    Clyde E. Williamson, York, for appellant (at 397) and appellee (at 396).
    Christian S. Erb, Jr., Harrisburg, for appellee.
    Before WICKERSHAM, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

Plaintiff Larry C. Hoffman and defendant John Battalino, D.O., each appeal from the judgment entered in favor of Mr. Hoffman on October 27, 1982.

Hoffman instituted an action in trespass against Memorial Osteopathic Hospital (“Hospital”) and Battalino for emotional distress, demanding both compensatory and punitive damages. The action was initially heard by an arbitration panel pursuant to the Health Care Services Malpractice Act (HCSMA), 40 P.S. § 1301.101 et seq. Following an award of both compensatory and punitive damages against Battalino and the Hospital, the action was appealed to the court of common pleas. A jury awarded Hoffman $14,000.00 in compensatory damages. A verdict of indemnity was entered by the trial court in favor of the Hospital against Battalino, and delay damages were awarded.

Battalino and the Hospital filed motions for judgment n.o.v. Battalino and Hoffman filed motions for a new trial. All were denied. Hoffman and Battalino then filed the instant appeals.

Hoffman asserts in his appeal that the trial court should have allowed the question of punitive damages to go to the jury. Hoffman also challenges (a) the refusal of the trial court to grant his request for sanctions against Dr. Battalino and the Hospital for their alleged failure to answer interrogatories relevant to the issue of punitive damages, (b) the alleged error by the trial court in excluding evidence concerning the wealth of Dr. Battalino, and (c) the exclusion by the trial court of the verdict entered by the medical malpractice arbitration panel.

Dr. Battalino argues in his cross-appeal that he is entitled to judgment n.o.v. Dr. Battalino argues additionally that the trial judge should not have molded the verdict against him alone. For the following reasons we reverse the determination of the trial court and remand for a new trial.

The standard of review with regard to a refusal to grant a motion for judgment n.o.v. was succinctly stated by our Court in Walsh v. Pennsylvania Gas and Water Company, 303 Pa.Super. 52, 58, 449 A.2d 573, 576 (1982):

In reviewing the denial of a motion for judgment N.O.Y., the evidence together with all reasonable inferences therefrom must be viewed in a light most favorable to the verdict winner; all conflicts in the evidence are resolved in favor of the prevailing party. See Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979); Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980). Evidence supporting the verdict is considered and the rest rejected. Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968). As we said recently, “A judgment notwithstanding the verdict should be entered only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper____” Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982).

The facts, therefore, when viewed in a light most favorable to Mr. Hoffman are as follows:

On Monday, July 26, 1976 Mr. Hoffman tripped and sprained his back while carrying a box at work. He was seen that day by the company doctor, who suggested that Hoffman see his family doctor if he had any more problems. Hoffman saw his family doctor, Dr. MacDougall, the following Wednesday and Dr. MacDougall could find nothing wrong. On Friday, Hoffman complained that his legs were getting worse, and returned to see Dr. MacDougall who again could find nothing wrong with Hoffman. That evening Hoffman went to York Hospital and, like Dr. MacDougall, the staff at York Hospital could find nothing wrong.

On the evening of July 31, 1976 Mr. Hoffman was taken to Memorial Osteopathic Hospital complaining about pain in his legs. Dr. Battalino, the sole doctor on duty in the emergency room, examined Hoffman on the emergency room’s examining table, checking his reflexes and the lower part of his back.

Somehow, Mr. Hoffman went from the table to a chair and when Dr. Battalino told him that he could get up and go home, Hoffman fell on the floor. Dr. Battalino again told Mr. Hoffman that he could get up and go home.

Hoffman could not get up and began to cry. Dr. Battalino then told him that he had sick patients to care for and he walked out of the room. Hoffman, who remained on the floor, pulled himself over to the door and called for help. He was crying and stating that his legs hurt. Hoffman, while on the emergency room floor, was dressed only in cut-off jeans. He wore no shirt, socks, or shoes, and testified that the floor was cold. He was on the floor for one and one-half to two hours and was not provided with a pillow or a blanket. Hoffman fell asleep for part of the time he was on the floor.

At one point, while Hoffman was lying in the doorway of the emergency room, Dr. Battalino, who had returned, stepped over the patient and informed him again that nothing was wrong and that he could go home. Dr. Battalino had given orders to the Hospital staff not to pick Hoffman up from the floor.

The next day Hoffman’s medical problem was diagnosed by Dr. Van Buskirk at York Hospital as Guillian-Barre syndrome, an affliction causing progressive neurological paralysis. Prior to trial Mr. Hoffman stipulated that the conduct of Dr. Battalino and the Hospital did not aggravt ;e, extend or change the nature of his existing Guillain-Barre disease. At trial Hoffman conceded that his sole claim for the tort of outrage or intentional infliction of emotional distress was based upon his lying on the floor at Memorial Osteopathic Hospital.

Having set forth the facts in a light most favorable to Mr. Hoffman we now turn to the substantive legal issues. The primary legal question to be addressed is whether Dr. Battalino committed the tort of outrage or intentional infliction of emotional distress.

Intentional infliction of emotional distress is an actionable wrong in Pennsylvania. See Papieves v. Lawrence, 437 Pa. 333, 263 A.2d 118 (1970); Bartanus v. Lis, 332 Pa.Super. 48, 480 A.2d 1178 (1984). This actionable wrong is described in Section 46 of the Restatement (Second) of Torts (1965). Section 46 provides in part:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (Emphasis supplied).

Comment d to Section 46 explains:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

Dr. Battalino in the instant case caused Mr. Hoffman no physical injury. The tort of outrage or intentional infliction of emotional distress without physical injury or impact has been recognized in Pennsylvania only in very narrow and clear factual situations. D’Ambrosio v. Pa. Nat. Mutl. Cas. Ins. Co., 262 Pa.Super. 331, 396 A.2d 780 (1978), aff'd, 494 Pa. 501, 431 A.2d 966 (1981).

The requisite “intention” which one must display for liability to be imposed under the tort of outrage is “knowledge on the part of the actor that severe emotional distress is substantially certain to be produced by his conduct.” Forster v. Manchester, 410 Pa. 192, 199, 189 A.2d 147, 151 (1963) (emphasis in original).

We agree that, under the facts presented, a jury could have reached a verdict for Hoffman. Judgment n.o.v. is not appropriate here since we do not have a clear case where no two reasonable persons could fail to agree that the verdict was improper. Martin v. Soblotney, supra.

We now turn our attention to the charge given to the jury. If the jury charge is fundamentally erroneous or has a tendency to mislead or confuse rather than to clarify the issues, a new trial will be required so long as that portion of the charge in question might have been responsible for the verdict. Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981); Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 209 A.2d 279 (1965). See also Archer v. Pennsylvania R. Co. 166 Pa.Super. 538, 72 A.2d 609 (1950) (A new trial was proper where the trial court did not adequately define “negligence”).

The trial court in its charge to the jury properly paraphrased the language in Section 46 of the Restatement, but did not provide the jury with an explanation of the meaning of the term “intentionally” as used in Section 46 (R. at 358a). The jury, in finding against Dr. Battalino, may have concluded that Battalino was liable merely because he intentionally left the emergency room to treat other patients while Hoffman remained on the floor. Because the jury was not given sufficient instructions by the trial court in its charge, we are constrained to remand for a new trial.

Hoffman contends that the trial court improperly refused to charge the jury on punitive damages. We agree and find additional grounds for granting a new trial. Pennsylvania has adopted the rule on punitive damages set forth in Section 908 of the Restatement of Torts. Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963); Medvecz v. Choi, 569 F.2d 1221 (3rd Cir.1977).

Section 908 provides:

(1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

Comment (b) to Section 908 goes on to state:

Punitive damages are awarded only for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others.

Since it was appropriate for the trial court to place before the jury the question of whether or not Dr. Battalino committed the actionable wrong of intentional infliction of emotional distress under Section 46, the trial court should also have permitted the jury to consider the question of punitive damages.

Mr. Hoffman contends that the trial court erred on February 1, 1982 when it refused to admit into evidence the verdict of the medical malpractice arbitration panel where Section 510 of the HCSMA (40 P.S. § 1301.510) provides:

Where an appeal is taken the decision, and findings of fact, if any, of the arbitration panel shall be admissible as evidence before the court; provided, however, that any award of damages shall not be admissible as evidence.

This issue is without merit.

On September 22, 1980 our supreme court, in Mattos v. Thompson, supra, explicitly found Section 309 of the HCSMA (40 P.S. § 1301.309) to be unconstitutional. Any lingering questions about whether Section 510 and other arbitration procedures, exclusive of Section 309, continued to retain vitality were emphatically answered by our supreme court in Heller v. Frankston, 504 Pa. 528, 475 A.2d 1291 (1984) when it indicated that the entire arbitration scheme was unconstitutional.

Referring to the Mattos decision Chief Justice Nix, speaking for the supreme court, stated:

[W]e emphasize that in striking down Section 309 we indicated, in the clearest possible language, that the constitutional objection resulted from the arbitration scheme. We did not expressly or implicitly limit our action to the “exclusive” aspect of the panels’ jurisdiction. Our holding in Mattos rendered invalid the only legislative grant of jurisdiction to the panels. The only body competent to confer a new jurisdictional predicate for the panels would have been the legislature. This the legislature has not done.

Heller v. Frankston, 504 Pa. at 537, 475 A.2d at 1296. Since the entire arbitration scheme of the HCSMA was determined to have been unconstitutional at the time of trial, the trial court properly refused to permit the introduction of the verdict of the medical malpractice arbitration panel.

Finally, Mr. Hoffman claims that the trial court should have granted his request for sanctions against Dr. Battalino and the Hospital for their failure to answer interrogatories relevant to the issue of punitive damages.

The interrogatories in question were served upon Dr. Battalino and the Hospital on October 21, 1981, more than two months after a pre-trial conference with the trial court. In a memorandum prepared for the August 12, 1981 pre-trial conference, counsel for Mr. Hoffman informed the court that no additional discovery was required. (R. at 307b). The trial court then gave the parties an opportunity to notify the court, within 14 days, of any corrections or additions to its pre-trial order.

Because Mr. Hoffman’s counsel indicated that no additional discovery was desired, and did not submit any corrections or additions to the pre-trial order, we cannot conclude that the trial court abused its discretion by not imposing sanctions. Imposition of sanctions is largely within the discretion of the trial court. Feingold v. Philadelphia Nat. Bank, 313 Pa.Super. 579, 460 A.2d 339 (1983). We do not mean to imply, however, that evidence concerning Dr. Battalino’s wealth would not have been a proper subject for interrogatories had the interrogatories been served in a timely fashion. As our supreme court indicated in Arye v. Dickstein, 337 Pa. 471, 12 A.2d 19 (1940), in cases involving a question of punitive damages, testimony concerning the wealth of the defendant

may be received when in the opinion of the trial judge it is necessary to indicate what in the nature of punishment should be meted out to a defendant for a malicious act, but its reception should be most carefully safeguarded by the judge, so that injustice shall not be done to the defendant.

Id., 337 Pa. at 474, 12 A.2d at 20.

Reversed and remanded for a new trial.

      . The HCSMA’s arbitration provisions have since been declared unconstitutional. Heller v. Frankston, 504 Pa. 528, 475 A.2d 1291 (1984); Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980).


text:
    492 A.2d 1388
    COMMONWEALTH of Pennsylvania v. Vivian S. COGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 6, 1985.
    Filed May 24, 1985.

      Kenneth B. Burkley, Greensburg, for appellant.
    Gene E. McDonald, Latrobe, for Commonwealth, appellee.
    Before OLSZEWSKI, HESTER and SHIOMOS, JJ.

       Judge Thomas N. Shiomos, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   HESTER, Judge:

This appeal presents the interesting question of whether a local municipality has the power to regulate speed limits on a state highway within its boundaries when the Pennsylvania Department of Transportation (hereinafter “Department”) has failed to do so.

The facts which gave rise to the above issue are as follows. On May 1, 1980, appellant was traveling along Route 480 within the municipal limits of Latrobe Borough, when she was stopped and cited for traveling 42 m.p.h. in a posted speed limit zone of 25 m.p.h. Appellant was adjudged guilty following a hearing before the Honorable Joseph Hudock of the Court of Common Pleas of Westmoreland County on October 28, 1980. A timely appeal was taken to this Court. By Opinion Per Curiam dated August 2, 1982, the Superior Court remanded this matter for the filing of post-verdict motions nunc pro tunc, 303 Pa.Superior Ct. 153, 449 A.2d 624. Said motions were argued and denied on January 24, 1983. Appellant was sentenced to pay a fine of $59.00 plus costs, and thereafter pursued the instant appeal.

Appellant does not contest the accuracy of the device which determined her speed nor the validity of the citation issued, nor the fact that a speed limit of 25 m.p.h. was posted. Rather, she contends that the evidence adduced at trial was insufficient to support the verdict. Appellant further argues that the Department’s established speed limit of 40 m.p.h. must prevail over the lower maximum speed limit established by the local authority. Having closely considered appellant’s arguments, we affirm the decision of the trial court.

Appellant’s initial contention is not supported by the record. She specifically asserts that the Commonwealth failed to establish beyond a reasonable doubt that the 40 m.p.h. speed limit signs were never posted. The lower court considered the testimony of three witnesses and a Penn Dot District Engineer in concluding that the roadway had never been posted by the Commonwealth at 40 m.p.h. Moreover, counsel stipulated for the record that there was no 40 m.p.h. posting along the highway in question.

Our scope of review in cases where the lower court has heard a matter de novo is to determine whether or not the findings of fact are supported by competent evidence and to correct erroneous conclusions of law. Commonwealth v. Gussey, 319 Pa.Super. 398, 402, 466 A.2d 219, 221 (1983). An application of this standard leads us to conclude that the lower court was correct in its ruling on this issue.

Appellant next avers that the speed limit established by the Department, although unposted, must prevail over a differing speed limit posted by a local authority on the highway in question. Thus, she contends the local ordinance is rendered null and void and cannot support a conviction.

In 1968, the Department established a speed limit of forty miles per hour for Route 480 based upon an engineering and traffic investigation. Said action was taken pursuant to 75 P.S. § 1002(b)(8) of the 1959 Vehicle Code. The present Vehicle Code, 75 Pa.C.S.A. § 101 et seq. became effective on July 1, 1977. That Code provides:

(b) Posting speed limits — no maximum speed limit ... shall be effective unless posted on fixed or variable official traffic-control devices erected in accordance with regulations adopted by the department which regulations shall require posting at the beginning and end of each speed zone and at intervals not greater than one-half mile.

75 Pa.C.S.A. § 3362(b). As determined above, no signs were posted assigning that speed limit to the roadway.

In fact, the Borough of Latrobe had posted the roadway in question with 25 m.p.h. signs in 1958, and had since maintained that speed limit and the signs so indicating. Section 3363 and 6109 explicitly permit the Department or local authorities to alter maximum speed limits on highways under their respective jurisdictions when traffic studies indicate such a need.

Appellant argues, and not without persuasive force, that although these sections vest power in the local authorities to alter speed limits, once action has been taken by the Department for a particular road, any limit set by the local authority is void without the consent of the Department. To support this contention, appellant refers to 75 Pa.C.S.A. § 6109(d) which provides that “the Department may require local authorities to obtain department approval in advance of regulating traffic on state-designated highways within their physical boundaries.” From this language, appellant infers a legislative intent for the Department determinations to prevail over those of local authorities.

Having studied the relevant statutory authorities, we are convinced otherwise. Concededly, the Department established a lawful maximum speed zone over Route 480 in 1968. The Vehicle Code of 1976 did not invalidate lawfully established speed restrictions existing prior to its enactment. Commonwealth v. Kerns, 278 Pa.Super. 283, 420 A.2d 542 (1980). However, the lower court concluded, and we believe there is sufficient evidence to support that inference, that the Department never posted that limit in compliance with the requirements of both the Code then in effect and the Code of 1976. In light of this omission, we hold that the Department’s recommended speed limit of 40 m.p.h. was never in effect for Route 480.

We further find that, in the absence of a due exercise of the Department’s power, the local authority was within its rights to establish and post a speed limit in accordance with 75 Pa.C.S.A. § 3363 and 6109. Moreover, appellant cites no Department regulations requiring local authorities to seek departmental approval prior to regulating speed limits on state highways. Thus, 75 Pa.C.S.A. § 6109(d) does not apply to our analysis of the instant action.

For the foregoing reasons, we find that only the Borough of Latrobe has effectively exercised its authority to establish a speed limit for Route 480. Accordingly, this speed limit was lawful and appellant’s violation of that speed limit must stand.

Judgment of sentence affirmed.

      . This conduct constituted a violation of 75 Pa.C.S.A. § 3362(a)(3), which states:
      "no person shall drive a vehicle at a speed in excess of ... (3) any other maximum speed limit established under this subchapter.

      . The Department submitted an amicus curiae brief in support of appellant’s position that Latrobe was without authority to unilaterally establish a speed limit for Route 480. It argued that 75 Pa.C.S.A. § 3363 only granted the power to alter speed restrictions to municipalities on highways under their respective jurisdictions. Since Route 480 had been adopted as a "state highway,” it fell under the exclusive jurisdiction of the Department, and Latrobe Borough lacked authority to alter the speed limits thereon.
      However, the above interpretation of statutory language would render 75 Pa.C.S.A. § 6109(d) meaningless. If local authorities had no power to assign speed limits to state highways within their jurisdiction in the absence of Department-designated and posted speed limits, § 6109(d) would require local authorities to seek department approval prior to such action. Instead, § 6109(d) states that the Department may require such approval. Thus, we must conclude that, in want of such regulations, the local authorities may proceed to regulate speed restrictions for state highways within their boundaries.

      . The fact that Latrobe established this speed limit in 1958 is irrelevant to our review of its power to do so in accordance with the Vehicle Code of 1976.


author: HOFFMAN, Judge: DEL SOLE, Judge,

text:
    493 A.2d 78
    COMMONWEALTH of Pennsylvania, Appellant, v. Gerald WOODSON.
    Superior Court of Pennsylvania.
    Submitted May 24, 1984.
    Filed March 22, 1985.
    Reargument Denied June 3, 1985.
    Petition for Allowance of Appeal Denied Oct. 15, 1985.

      Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

The Commonwealth contends on appeal that the trial court erred in granting appellee’s motion in arrest of judgment. We agree and, accordingly, reverse and remand for the disposition of appellee’s outstanding post-verdict motions.

On February 16, 1982, Catherine Brooks encountered a masked burglar in her North Philadelphia home. After the man fled with her purse, she called the police. The responding officers arrested appellee as he left the alley behind the Brooks house. Subsequently, a search of the appellee’s person revealed some money, including a peculiarly-folded dollar bill, and two small safety pins. At trial, Brooks testified that she had two small safety pins and a bill folded in the same fashion in her purse when it was stolen.

Appellee was charged with burglary, theft, and criminal trespass. On April 15, 1982, he filed a motion to suppress the physical evidence taken from him in the custodial search, alleging, inter alia, that his arrest was without probable cause. On June 19, the Honorable Eugene E.J. Maier heard and denied the motion. On September 28, the Honorable Lawrence Prattis, sitting without a jury, found appellee guilty of burglary and criminal trespass. Appellee then filed several timely post-verdict motions. On December 13, 1982, Judge Prattis granted appellee’s motion in arrest of judgment, ruling that the motion to suppress should have been granted. This appeal followed.

Our function on review is to determine

whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defendant as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Hunt, 280 Pa.Superior 205, 207-08, 421 A.2d 684, 685 (1980); see also Commonwealth v. Crissy, 304 Pa.Superior 38, 40, 450 A.2d 89, 90 (1982). In the instant case, the suppression court failed to comply with Pa.R.Crim.P. 323(i) which requires the entry on the record of a “statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights____” We need not remand for another suppression hearing, however, because we find that the record, including the transcripts of the suppression hearing and trial, is sufficient to allow us to dispose of appellee’s claim of illegal arrest. See Commonwealth v. Williams, 323 Pa.Superior 512, 526, 470 A.2d 1376, 1384 (1984).

We must first decide at what point appellee was arrested. An arrest is defined as “any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest.” Commonwealth v. Lovette, 498 Pa. 665, 671, 450 A.2d 975, 978 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). In the instant case, appellee was detained upon leaving the alley and being transported back to the Brooks house, although he was not formally arrested until later. We believe that these acts indicated an intention to take appeSee into custody and to subject him to the control and will of the arresting officer. We therefore find that appellee was arrested after he was detained and questioned at the alley.

We must next determine whether there was probable cause to support this arrest. Probable cause for a warrantless arrest exists if the facts and circumstances known to the officer at the time of the arrest would warrant a prudent person in believing that a criminal offense had been committed, and that the suspect was the perpetrator of the offense. Commonwealth v. Stokes, 480 Pa. 38, 43, 389 A.2d 74, 76 (1978); Commonwealth v. Woodard, 307 Pa.Superior 293, 297, 453 A.2d 358, 360 (1982). Furthermore, although flight alone is not sufficient to establish probable cause to arrest, it may be coupled with additional facts which point to a suspect’s guilt and establish probable cause to arrest. Commonwealth v. Gease, 304 Pa.Superior 433, 450 A.2d 989 (1982). Here, the police spoke with Brooks and determined that her house had been ransacked and her purse stolen. She described the intruder as a young black man wearing a beige sweater or shirt. (N.T. June 19, 1982 at 33; September 28, 1982 at 29-30). A jacket, apparently left by the fleeing intruder, was found by an open window overlooking an alley behind the Brooks house. (N.T. June 19, 1982 at 33-34). The arresting officer also heard dogs barking at the far end of the alley, leading him to believe that the intruder might still be hiding in the alley. (Id. at 33, 34, 42-43). When the officer went outside to investigate, he saw appellee leaving the alley wearing a beige short-sleeved sweater and no jacket, despite the cool weather. (Id. at 34-35). Moreover, when appellee saw the uniformed officer, he “picked up his pace” and walked rapidly in the opposite direction, ignoring the officer’s repeated calls to stop. (Id. at 44-45, 47-50). When the officer stopped and questioned appellee, appellee said that he had gone into the alley to urinate. However, upon checking the alley, the officer found no evidence to substantiate this explanation. (Id. at 36). Therefore, we find that appellee’s proximity to the scene of the crime, the correspondence of his appearance to Brooks’s description of the intruder, his attempt to evade the police officer and his unsubstantiated explanation for his presence in the alley combined to afford the police officer probable cause for a warrantless arrest.

Accordingly, we reverse the order arresting judgment, reinstate the guilty verdicts, and remand for disposition of appellee’s remaining post-verdict motions.

Reversed and remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I agree with the majority’s finding that Appellee was under arrest at the time he was transported to the victim’s residence for identification. However, because I believe there was no probable cause to arrest Appellee, I would affirm the trial court’s finding that the search of Appellant was illegal and that the evidence obtained in the search, two safety pins and an amount of currency including an alleged peculiarly folded dollar bill, should have suppressed. While the actual alleged dollar bill with the peculiar fold was never entered into evidence, a fact I find disturbing, I would find that the demonstration by the police officer and the victim of how the bill was folded should have been suppressed. In addition, my review of the record leads me to conclude that the evidence, even including that which should have been suppressed, was insufficient to sustain a conviction for burglary. Thus, I would affirm the trial court’s arrest of judgment despite the trial court’s conclusion that there was sufficient evidence introduced at trial to support Appellee’s conviction.

This case is disturbing in that not only did the police lack probable cause to arrest and then search Appellee but, that the evidence introduced at trial was so flimsy that it could not possibly support a conviction for burglary. A clQse reading of the record reveals that the victim’s description of the alleged burglar was very sketchy and that she failed to identify Appellee as the burglar at the time of Appellee’s arrest on that date of the crime or at trial. In addition, the evidence discovered in the search of Appellee hardly provides a strong link between the crime and Appellee. The evidence discovered consisted solely of two safety pins and a quantity of currency totaling $22.60 in the following denominations: two five, eight ones and $4.60 in change. One of the dollar bills was also allegedly folded in a peculiar manner similar to a bill contained in the stolen purse. However, a close review of the victim’s testimony reveals that she was uncertain as to the amount of money taken. Further, the record reveals that despite the victim’s uncertainty as to the amount of money taken the police gave the money obtained from Appellee to the victim, including the peculiarly folded dollar bill. Thus, at trial all that was introduced was the two safety pins and a demonstration by the police officer who searched Appellee and the victim as to how the dollar bill was peculiarly folded. I am disturbed not only that the money taken from Appellant was given to the victim before the completion of the criminal proceedings but that actual peculiarly folded dollar bill was not retained as evidence by the police, especially since that dollar bill was, as I read the record, a crucial piece of evidence on which Appellee’s conviction rested. The only other evidence against Appellee was the testimony of the arresting officer which I find far from establishing any guilt on Appellee’s part.

In conclusion, not only was there a lack of probable cause to arrest, but that there was no identification by the victim and the chief piece of evidence against the accused was not preserved for trial by the police. The majority and the trial court obviously believe that a burglary conviction can be based upon such evidence. While I would concede that sufficient evidence need not be overwhelming evidence of guilt, I believe that in that instant case the evidence was insufficient. Thus, I would affirm the trial court’s arrest of judgment.

      . In its Pa.R.A.P. 1925(a) opinion, the lower court conceded that upon finding that the motion to suppress should have been granted the appropriate remedy was to order a new trial rather than arrest judgment. (Lower Court Opinion at 4-5).

      . Appellee argues that an intruder was not likely to have remained in the alley for over twenty minutes after fleeing the Brooks house. (Appellee’s Brief at 13). We believe, however, that a contrary inference is equally probable. Brooks testified that, after the intruder fled, she screamed for help from an open window. (N.T. June 19, 1982 at 24). Thus, a prudent burglar may very well have decided to wait in the alley until the commotion had died down and the coast was clear.

      . The parties stipulated that the air temperature was between fifty and sixty degrees Farenheit at the time of the incident. (N.T. September 28, 1982 at 76). Nevertheless, the arresting officer described the day as "chilly," recalling that he was wearing a winter jacket. (N.T. June 19, 1982 at 35, 46, 50). In light of these circumstances and considering the fact that a jacket was left at the Brooks house, we think that appellee's appearance in short sleeves was sufficient to warrant suspicion.