author: BECK, Judge:

text:
    584 A.2d 980
    COMMONWEALTH of Pennsylvania v. Howard C. WEISMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1990.
    Filed Dec. 21, 1990.

      David J. Foster, Lemoyne, for appellant.
    Andrea F. McKenna, Deputy Atty. Gen., Harrisburg, for Com.
    Before CAVANAUGH, BECK and POPOVICH, JJ.
   BECK, Judge:

The appellant, Howard Weisman, was convicted by a jury of kidnapping for his part in the ambush and murder of Richard Harry Good. The issue he raises in this appeal is whether he is entitled to a new trial because the Commonwealth failed to reveal to the jury that one of its witnesses against him had been made certain promises of leniency in exchange for his testimony at appellant’s trial. Although we hold that the prosecution erred in concealing its agreement with the witness from the defense and the jury, a careful review of the evidence convinces us that the error could not reasonably have contributed to the verdict. Therefore, we affirm.

The evidence upon which appellant’s conviction rests is as follows. On July 14, 1982, a group of friends were gathered at the bungalow of Michael Slote, which was situated on the property of Slote’s Nursery in Berks County. Present at the time were Michael Slote, Randy Haag, Van Peters, Michael Sands and the appellant, Howard Weisman. Another man, Bruce Ream, was in the bungalow also but was in his bedroom during most of the evening and did not participate in the capture and disposal of the victim, Good. The victim apparently was expected to arrive at Slote’s bungalow in order to turn over to Slote and Haag the victim’s Corvette and its ownership papers. The car was being offered by Good in satisfaction for money owed in connection with drug trafficking. Slote warned Good to come alone to the bungalow. Just before Good was expected, Slote told Haag, Peters, Sands and Weisman to hide in his (Slote’s) bedroom so that Good would not be frightened or suspicious when he arrived. Slote also handed Sands a .22 caliber rifle and instructed Sands to hold it in case Good was carrying a weapon. When Good arrived Slote led him back into his bedroom on the pretext that that was where he stored his drugs. Immediately Slote grabbed Good from behind, Haag grabbed the rifle from Sands and hit Good with it and began shouting at him. Appellant grabbed Good’s feet and threw him to the floor. Sands and Peters restrained Good while Weisman got rope and tied him up. Tape was placed over Good’s mouth. Haag took Good’s wallet and ring. Then Weisman and Slote carried the bound and gagged victim downstairs to the basement. Meanwhile, Haag announced to the victim, “You’re going swimming.”

Sands and Peters were instructed to watch over Good while Weisman and Haag drove Haag’s car to the exterior basement door. After that, Haag gave Peters and Sands the papers and keys to Good’s Corvette and about two hundred dollars and told them to drive the car to Florida. When Peters and Sands left Slote’s house, Good was still in the basement, tied up but alive.

A short time later, Bruce Ream, still in his bedroom, could hear and see Haag’s car drive away from the bungalow down a back lane towards the rear of the nursery property. Minutes later, Ream heard a single gunshot. The following day, Haag and Weisman warned Bruce Ream to keep his mouth shut and forget anything that happened the night of Good’s disappearance.

About a week later, Good’s body was found by a fisherman, floating in the Susquehanna River. Good’s body had been wrapped in carpet remnants and then secured with several feet of chain which had been fastened by locks and then attached to cinder blocks to weigh it down. Good had suffered a single gunshot wound through the head.

Meanwhile, Sands and Peters had delivered Good’s Corvette to Florida and disposed of it according to telephone instructions received from Haag. Sands returned from Florida and this ended his involvement in the incident and also ended his contact with the other perpetrators. Peters, however, was called upon to do additional “favors” for Weisman and Haag. At their request, Peters went to Haag’s garage and picked up all the carpet remnants which were stored there. At first, Peters discarded the remnants at a dump at the Reading Boat Works. However, Weisman and Haag were unhappy with Peters’ choice of disposal site and, therefore, they made Peters retrieve the carpet pieces. Thereafter, Weisman accompanied Peters to another landfill where the carpet scraps were finally deposited.

Shortly after the discovery of Good’s body, appellant returned to the hardware store at which, a couple of weeks before, he had purchased a length of chain and locks. Appellant attempted to convince the sales person to locate the receipt and his charge card slip and return them to him.

Since, in 1982, ño eyewitnesses were immediately forthcoming to the instant murder, a grand jury investigation was begun. Sometime during the course of the investigation, in early 1984, Bruce Ream had a conversation with appellant in which appellant confided to Ream that he (Weisman) had been subpoenaed to the grand jury but he had not responded. He further boasted that the Commonwealth had “nothing” in the way of evidence. Weisman warned Ream again to keep his mouth shut and not to worry because they had gotten away with “the crime of the century.” Ream told Weisman, “If you wouldn’t have threw [sic] the body in three feet of water with four foot of chain it would never have been.” To this Weisman retorted, “I can’t plan everything right.” At trial, Bruce Ream testified to these conversations with appellant.

Apparently, Ream was not the only person to whom appellant bragged about his role in Good’s murder. An ex-classmate of Weisman’s, James Aguiar, was in the Berks County prison for nonsupport and talked with Weisman after Weisman’s arrest. Weisman boasted that he had planned Good’s murder with Slote and Haag. He stated that Haag had financed it and that he and Slote had received money and drugs from the operation. Further, Weisman was confident that he would “get off” and then sue the Commonwealth. Weisman suggested to Aquiar that it would be “nice” if “something happened” to Peters and Sands before his trial began. Aguiar’s testimony was also introduced at trial.

Finally, another individual, Steve Grynastyl, who had had drug dealings with appellant, Haag and Slote testified for the Commonwealth. Grynastyl described an earlier, aborted plot on Richard Good’s life. Apparently, Haag, Slote and Weisman decided that Good had to be killed because “he kept ripping them off” and causing trouble. The three men summoned Grynastyl and tried to convince him to shoot Good, offering him $5,000 to do so. The plan was not carried out the night Grynastyl was there but, as the evidence showed, the murder was successfully executed weeks later.

At trial, Van Peters, Michael Sands, Bruce Ream, Steve Grynastyl and James Aguiar all testified for the Commonwealth. At the time of appellant’s trial Peters and Sands were also charged with kidnapping for their roles in the Good killing. Ream also had unrelated criminal charges recently dropped by the prosecution in a move which evidently had nothing to do with the fact that Ream was testifying for the Commonwealth in appellant’s trial. To undermine the credibility of the witnesses against him appellant theorized that Peters, Sands and Ream were testifying in order “to save their own necks.” This theory and the following alibi defense constituted appellant’s defense at trial. In support of his alibi appellant testified that although he had been at Slote’s bungalow earlier in the evening of the murder, he had left there to spend the night with his girlfriend. He denied participation in the kidnapping and murder and claimed that he was a victim of “guilt by association.”

The jury convicted appellant of kidnapping and acquitted him on the murder charge. Following the denial of post-trial motions appellant was sentenced to six to twenty years imprisonment. Appellant appealed to this court. One of the issues raised by appellant caused this court, in a memorandum opinion filed on March 30, 1988, to remand the case for an evidentiary hearing. Appellant claimed that although Peters, Sands and Ream all testified that they had not secured any promises of leniency from the Commonwealth in return for their testimony, after trial he discovered that plea agreements which benefited the witnesses were in existence. In order to determine the evidentiary basis, if any, for appellant’s claim, we remanded for a hearing.

The trial court held an extensive hearing on April 4, 1989. At the hearing Peters’ and Ream’s attorneys testified and a deposition and various office memoranda and letters from Sands’ attorney were introduced. At appellant’s trial Peters had testified that the only arrangement he had with the Commonwealth was that they would inform the sentencing judge that Peters had cooperated in the prosecution of the main perpetrators, Slote, Haag and appellant. At the 1989 hearing, Peters’ attorney, John Boccabella, confirmed that the only agreement he and his client had with the Commonwealth with respect to the Good murder case was that if Peters cooperated and testified truthfully “that cooperation will be made known to the Court at the time of his sentencing.” Likewise, Bruce Ream’s attorney testified that the unrelated criminal charges which had been pending against Ream prior to appellant’s trial were not the subject of any “deals” with the Commonwealth. Ream’s attorney, David Dautrich, emphatically stated that the Commonwealth refused to offer any deals in exchange for'-testimony and that Ream had decided on a course of cooperation and full disclosure prior even to retaining an attorney. Mr. Dautrich stated that the charges pending against Ream had been nol prossed primarily as a result of his strenuous “lobbying” and in part because the complaining witness was unenthusiastic about continuing to press charges. Based on the attorneys’ testimony the trial court found that neither Peters nor Ream had misled the trial jury when they stated that their testimony was not secured as the result of undisclosed promises or agreements with the prosecution. We find nothing in the record which would lead us to conclude otherwise.

However, the testimony of Michael Sands is more troublesome. At trial, on direct examination and again on cross-examination, Sands asserted that no promises or representations regarding his pending kidnapping charge had been made to him by the Commonwealth in exchange for his cooperation with the prosecution of Slote, Haag and appellant. Thereafter, during closing argument, the prosecutor argued to the jury that although he was “sure that [Sands] hopes that by cooperating that he will get lesser treatment or less severe treatment” that Sands “has no promise as to what his treatment will be.” The prosecution further argued in closing that “there is no reason for [Sands] to admit that he was standing around with a gun because in the Commonwealth of Pennsylvania to commit a crime with a gun in your visible possession gets you a mandatory sentence in jail.” The prosecutor added, “If [Sands] were making this up and there was some notorious plot to get Howard Weisman, there would certainly be no reason for Michael Sands to admit something that guarantees that jail sentence, no reason at all.”

However, despite Sands’ blanket claims that no agreements had been struck with the Commonwealth and the prosecutor’s indefensible endorsement of this representation, the evidence at the remand hearing established otherwise. Appellant’s counsel introduced into evidence the deposition of Sands’ attorney, George Newman, and numerous additional documents from Mr. Newman’s files. This evidence clearly demonstrated that Sands had entered into an agreement with the Commonwealth wherein he was promised that, in exchange for his cooperation, the Commonwealth would notify the sentencing court of his cooperation and would not oppose a sentence below the guidelines. Sands’ attorney made clear that since he understood the guidelines to provide for a two year term of imprisonment for kidnapping, he took the agreement to mean that the Commonwealth would not oppose a sentence of less than two years for his client. Moreover, the letters and memoranda introduced at the remand hearing made it reasonable to infer that both Sands and the prosecutor trying the Weisman case were aware of this agreement before the start of trial. Based on the evidence at the remand hearing the trial court found that the Commonwealth indeed had made a “promise” to Sands relating to his treatment on the kidnapping charge. The trial court found further that the prosecution should not have permitted Sands to mislead the jury in this regard. Finally, however, the trial court found that the error did not entitle appellant to a new trial because of the overwhelming independent evidence of guilt, the cumulative nature of Sands’ testimony and the “extremely limited effect of the Commonwealth’s understanding with Sands.” While we agree with the trial court’s conclusion, we add a word of admonition regarding the prosecution’s conduct in the instant case.

The prosecutor here had an indisputable duty to correct the testimony from Sands that “no promises or representations” had been made to him regarding the charge of kidnapping. See, e.g., Commonwealth v. Hallowell, 477 Pa. 232, 383 A.2d 909 (1978); Commonwealth v. Floyd, 259 Pa.Super. 552, 393 A.2d 963 (1978). Here, not only did the prosecutor fail to disclose the existence of the agreement to defense counsel or the court or the jury, he compounded his breach of duty by deliberately eliciting the misinformation from the witness and then arguing the misinformation to the jury in order to bolster Sands’ credibility. He created the misleading impression with the jury that Sands expected absolutely nothing from the Commonwealth in exchange for his truthful testimony and actually intimated to the jury that by testifying Sands was exposing himself to a mandatory jail term. Given the fact that the prosecutor’s office and the trial prosecutor in particular were aware of the Commonwealth’s agreement to stand mute in the face of a sentence which fell below recommended guidelines, the prosecutor’s conduct was unpardonable.

With this said, however, we conclude with equal confidence as did the trial court that the error here did not contribute to the verdict. It is settled that an error is harmless where the properly admitted evidence is so overwhelming and where the prejudicial impact of the error is so slight that it can be concluded beyond a reasonable doubt that the error could not have contributed to the verdict. Commonwealth v. McGrogan, 523 Pa. 614, 568 A.2d 924, 930 (1990) (quoting Commonwealth v. Story, 476 Pa. 391, 412-13, 383 A.2d 155, 162 (1978)). The harmless error doctrine reflects a fundamental principle which we think is particularly apt here, i.e., “that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the fundamental fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). If this court can conclude beyond a reasonable doubt that the error complained of did not contribute to the verdict, no new trial is required.

In the instant case, appellant’s role in the kidnapping of Good was established by overwhelming evidence apart from the testimony of Michael Sands. Peters and Ream independently corroborated every detail of Sands’ story. Moreover, both Peters and Ream provided further inculpating evidence regarding the disposal of the carpet scraps and incriminating statements by Weisman after the murder. In addition there was evidence of the purchase of the chain which wrapped Good’s drowned body and appellant’s attempts to retrieve the sales slip after Good’s body was recovered. Next, there was evidence from Grynastyl regarding former plots to kill Good by appellant and his accomplices. Further, there was the testimony of Aguiar regarding appellant’s confessed participation in the scheme. None of the above-mentioned, unimpeached testimony depended in any way on the testimony of Sands. Finally, although we condemn the prosecution’s concealment of their promise not to oppose a lower-than-guidelines sentence for Sands we find that, in the context of this case and in view of the overall reliability of Sands’ testimony, revelation of the promise would have had minimal impeachment potential. Therefore, we agree with the trial court that, since the error found here could not have contributed to the verdict, appellant is not entitled to a new trial. Judgment of sentence affirmed.

      . In 1982 the year this murder occurred Michael Sands had been living in Hawaii. He had returned that summer to the Reading area for a high school reunion and had been out socializing with old high school friends when the kidnapping and murder were committed.

      . Weisman learned that sometime later, in early 1984, Steve Grynastyl was summoned to testify before the investigating grand jury. In anger, Weisman told Bruce Ream that Grynastyl “will be the next one to go” and that it was necessary to "get over these little stepping stones to get ahead.”

      . The trial court subsequently instructed the jury that although it was the law in Pennsylvania that visible possession of a firearm under these circumstances carried a mandatory jail term, the was no reason to believe that Sands knew of this law when he described his participation in the Good kidnapping. The trial court urged the jury to keep that in mind while assessing credibility.


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    584 A.2d 985
    J.H. HOMMER LUMBER COMPANY, INC., Appellant, v. Kenneth L. DIVELY and Grace L. Dively, his wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 7, 1990.
    Filed Dec. 21, 1990.

      Russell Montgomery, Altoona, for appellant.
    Wayne Hippo, Hollidaysburg, for appellees.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from an order striking and dismissing the mechanics’ lien claim of Appellant, J.H. Hommer Lumber Co., Inc. (hereinafter “Appellant”) against Appellees, Kenneth and Grace L. Dively (hereinafter “Appellees”). We remand.

The simple facts of this appeal present two clear and related issues: Does the filing of a sheriff’s return satisfy the requirements of the Pennsylvania Mechanics’ Lien Law of 1963, 49 Pa.S.A. § 1502, which mandates the filing of an affidavit of service of notice? If not, can the sheriff’s return be amended to satisfy the requirements of 49 Pa. S.A. § 1502?

Appellant alleges that between July 8, 1988 and October 14, 1988, it sold and delivered various building materials for the construction of Appellees’ house and that Appellees failed to pay for these materials. On December 22, 1988, Appellant sent notice to Appellees of its intent to file a mechanics’ lien. On January 14, 1989, Appellant filed the mechanics’ lien against Appellees’ property. On February 2, 1989, the sheriff personally served Appellees with notice of the mechanics’ lien claim, and on February 15, 1989, the sheriff filed a sheriff’s return indicating that Kenneth Dively was personally served on February 2, 1989. In order to obtain judgment on the mechanics’ lien claim, Appellant filed a complaint on September 20, 1989. The Appellees filed preliminary objections contending that:

a) The notice of intent to file mechanics’ lien did not sufficiently identify the property claimed to be the subject of the lien;
b) The mechanics’ lien claim did not sufficiently identify the property claimed to be the subject of the lien;
c) The notice of intent to file mechanics’ lien was not given thirty (30) days before filing the claim;
d) There was no averment in the mechanics’ lien claim as to whom Appellant contracted with;
e) A proper affidavit of service of notice of the filing of the mechanics’ lien was not filed within twenty (20) days of service of the notice of filing the mechanics’ lien as required by 49 Pa.S.A. § 1502.

The court overruled all of Appellees’ objections except the last, and struck the lien holding that a sheriff’s return was insufficient to comply with the affidavit requirements of 49 Pa.S.A. § 1502. The court further denied the Appellant’s request to amend the sheriff’s return. This appeal followed.

49 Pa.S.A. § 1502 provides:

(a) Perfection of Lien. To perfect a lien, every claimant must:
(1) file a claim with the prothonotary as provided by this act within four (4) months after the completion of his work; and
(2) serve written notice of such filing upon the owner within one (1) month after filing, giving the court term and number and date of filing of the claim. An affidavit of service of notice, or the acceptance of service, shall be filed within twenty (20) days after service setting forth the date and manner of service. Failure to serve such notice or to file the affidavit or acceptance of service within the times specified shall be sufficient ground for striking off the claim.

Appellees cite Hoffman Lumber v. Geesey, 35 Pa. D & C 2d 200 (1965) for the proposition that a sheriffs return without a jurat does not meet the requirement of an affidavit of service of notice under § 1502(a)(2) and that no amendment could be made to the return under the provision of § 1504 which provides that a “claim” may be amended, since the affidavit of service is not a “claim”. Hoffman, as a lower court decision, is not binding upon this Court. Even so, we believe it is too narrow in its interpretation of § 1502(a)(2).

The precise issue has not been addressed by our appellate courts, although lower courts have. Cf Laird Lumber Co. v. Billioni, 13 Pa. D & C 2d 236 (1959); Ruggies Lumber Co. v. Serling, 6 Pa. D & C 2d 495 (1957); Lapidus v. Wallenbach, 43 Del.Co. 405 (1957); Hoffman Lumber Co. v. Geesey, supra.

In Rees, Weaver & Co., Inc. v. M.B.C. Paper Mill Corp., 267 Pa.Super. 148, 406 A.2d 562 (1979) our Court did address the validity of a sheriff’s return of service of notice of claim when the return was not filed within twenty days of service, as required by § 1502(a)(2). There the lower court assumed the sheriff’s return was the equivalent to an affidavit of service, but struck the lien because it was not filed within twenty days of service. Our Court affirmed, but noted that it did not reach Appellant’s argument that “a sheriff's return is tantamount to an affidavit by any other person.” Id., 267 Pa.Superior Ct. at 151, n. 1, 406 A.2d at 563, n. 1. The Court also alluded to Tesauro v. Baird, 232 Pa.Super. 185, 335 A.2d 792 (1975) for the proposition that the failure to file any affidavit within the period prescribed by statute should be distinguished from the failure to observe the requirements for the contents of the affidavit. “If the affidavit is timely filed, it may be amended to adhere to statutory requirements. Cf. Tesauro v. Baird, [supra ].” Rees, Weaver & Co., Inc., at 155, n. 5, 406 A.2d at 565, n. 5.

In the present case, there is no question that the sheriff’s return was filed within twenty days of service of the notice. The only defect complained of is that it did not contain a jurat by the sheriff. In Hutchinson Enterprises, Inc. v. Data Basics East, Inc., 345 Pa.Super. 91, 93, 497 A.2d 659, 660 (1985), we noted that:

In ... unequivocal fashion, the law makes a sheriff’s return of service which is full and complete on its face, in the absence of fraud, conclusive and immune from attack by extrinsic evidence, as to facts within the personal knowledge of the sheriff, such as when and where the writ was served. [Citations omitted]

In discussing the requirements of the Mechanics’ Lien Law, our Supreme Court long ago stated:

The great object of its several provisions is notice, and it has been truly said, an observance of them is essential to the safety of owners, purchasers and other lien creditors, as furnishing some date by which, in case of dispute, they may be enabled to ascertain the truth.

Knabb’s Appeal, 10 Pa. 186 (1849).

Since notice is the overriding concern, and since our courts have accorded great sanctity to the sheriff’s return, we hold that a sheriff’s return is adequate proof that the owner received the requisite notice under the Act. Our Rules of Civil Procedure equate a sheriff’s return with an affidavit of service by any other person who may be authorized to serve original process, Pa.R.C.P. 405(d), and we see no reason why the sheriff’s return should be entitled to lesser weight simply because the Mechanics’ Lien Law calls for an “affidavit”. The Mechanics’ Lien Law contemplated that claimants would prepare their own papers. McClintock v. Rush, 63 Pa. 203 (1869). The requirement of an affidavit of service is a logical requirement in such circumstances, the oath and penalties for perjury for violation thereof providing some measure of protection to the owner. A sheriff’s return by the officer entrusted by the courts for the service of its most important papers should provide no less protection to the owner, and arguably might provide more.

We are aware that the right to file a mechanics’ lien is of statutory origin, that such a right was unknown to common law, and that, as class legislation, it must be strictly construed. O’Kane v. Murray, 252 Pa. 60, 97 A. 94 (1916). However, we are also aware that “substantial compliance” is an important tool in determining whether a claim under the Mechanics’ Lien Law will be valid. Tesauro v. Baird, supra. We therefore hold that a timely filed return of service by the sheriff, albeit unsworn, is substantial compliance with 49 Pa.S.A. § 1502(a)(2).

Accordingly, the order of the trial court is reversed and the case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Because of disposition, we do not reach Appellant’s second argument.


author: WIEAND, Judge:

text:
    584 A.2d 988
    G. Fred IEHLE and Joan Ann R. Iehle and B.F. Knits, Inc. Ronald G. COLEMAN and General Accident Group and Pennsylvania General Insurance Company and Murphy Insurance Associates. Appeal of PENNSYLVANIA GENERAL INSURANCE COMPANY. PENNSYLVANIA GENERAL INSURANCE COMPANY, Appellant, v. G. Fred IEHLE and Joan Ann R. Iehle and B.F. Knits, Inc. and Ronald G. Coleman, Appellees.
    Superior Court of Pennsylvania.
    Argued June 12, 1990.
    Filed Jan. 4, 1991.

      Thomas M. Regan, Philadelphia, for Pennsylvania General, appellant.
    Joseph Roda, Lancaster, for Iehle and B.F. Knits, appellees.

      Before WIEAND, DEL SOLE and MONTEMURO, JJ.
   WIEAND, Judge:

The issue in this appeal is whether the buyer of a factory building, including sewing equipment, pursuant to a long-term agreement of sale forfeits the right to receive the proceeds of a fire insurance policy by agreeing to pay some or all of such proceeds to the seller who is subsequently convicted of arson in connection with the partial destruction by fire of the factory building and equipment. The trial court determined that there was no such forfeiture and entered summary judgment for the buyers in their action against the insurer. The insurer appealed. We affirm.

On September 30, 1980, G. Fred Iehle and Joan Ann R. Iehle, husband and wife, entered into a long-term agreement to purchase from Ronald G. Coleman a factory building and sewing equipment situated at 502 Edgar Avenue, Bloomsburg, Columbia County. By the terms of the agreement, the Iehles were to pay $115,000 for the factory building, with a down payment of $40,000, and $25,000 for the equipment, with a down payment of $10,000. Upon making these down payments, the buyers took possession of the premises and equipment. The balance of the consideration was payable in installments. On October 1, 1980, Pennsylvania General Insurance Company issued a policy providing fire insurance coverage on the building in the amount of $146,000, and a policy providing coverage for the contents in an amount of $50,000.

On August 3, 1981, the factory building and its contents were damaged by fire. The parties have stipulated that the damages to the building were $112,431.05 and that the contents destroyed by the fire had a value in excess of $50,000. At the time of the fire, the Iehles were slightly in arrears in the installment payments required by their agreement with Coleman. Following the fire, they made no payments. In September, Coleman confessed judgment against the Iehles and B.F. Knits, Inc. for the balance due on account of the building and equipment. In October, 1981, he also filed an equity action in Lancaster County to recover a portion of the insurance proceeds payable to the Iehles and their corporations. These actions were settled by agreement on February 19, 1982. By the terms thereof, the Iehles agreed to pay to Coleman the sum of $102,000 from the insurance proceeds and execute a quitclaim deed reconveying title to the factory building. Coleman, in exchange, agreed to discontinue his action and satisfy the judgments.

Coleman was subsequently charged with arson in connection with the fire. He was convicted following trial on September 23, 1983. Post-trial motions were denied, sentence was imposed, the Superior Court affirmed and the Supreme Court denied allocatur.

Meanwhile, the insurer had filed an action for declaratory judgment by which it sought to have the insurance policies declared null and void because of the Iehles’ agreement to pay a portion of the proceeds to Coleman, the arsonist. The insured’s agreement, it was argued, had compromised the insurer’s subrogation rights and had violated public policy. A petition for declaratory judgment was also filed by the Iehles. These actions were consolidated in the trial court and resulted in the entry of a summary judgment in favor of the Iehles. On June 26, 1989, the court held that the insured was entitled to be paid $162,431.95, plus interest in an amount to be determined. By subsequent order, dated July 21, 1989, the court computed pre-judgment interest to be in the amount of $70,597.40 and entered judgment in favor of the insured and against the insurer in the amount of $233,028.45. The insurer appealed on July 25, 1989.

“A motion for summary judgment may be granted only if the moving party has shown that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law.” Persik v. Nationwide Mutual Ins. Co., 382 Pa.Super. 29, 30-31, 554 A.2d 930, 931 (1989), allocatur denied, 522 Pa. 613, 563 A.2d 499 (1989), citing French v. United Parcel Service, 377 Pa.Super. 366, 370, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984). See also: Pa.R.C.P. 1035(b). Instantly, the material facts are not in dispute. We shall not disturb the trial court’s decision, therefore, unless the trial court has committed an error of law.

The only issues properly before this Court pertain to the rights and liabilities between the insured and the insurer. We are not now concerned with the rights between buyer and seller, and we are not directly concerned with the rights between insurer and arsonist.

In determining whether appellees had an insurable interest in the property sought to be insured, one must focus on the facts as they existed at the time when the policy was issued and at the time the loss by fire occurred. It is not appropriate to look to facts transpiring after the loss occurred to determine such an issue. Dubin Paper Co. v. Ins. Co. of N.A., 361 Pa. 68, 91, 63 A.2d 85, 96 (1949). At the time when the instant policies were purchased, the Iehles were the purchasers of real estate and equipment pursuant to a long-term agreement with the owner. This agreement vested in the buyers an equitable interest in the property being purchased. Payne v. Clark, 409 Pa. 557, 561, 187 A.2d 769, 770 (1963); Zitzelberger v. Salvatore, 312 Pa.Super. 402, 405, 458 A.2d 1021, 1023 (1983). An equitable interest of this nature is insurable. See: Pa. Fire Insurance Co. v. Dougherty, 102 Pa. 568 (1883). Cf. Kanefsky v. National Commercial Mutual Fire Ins. Co., 154 Pa.Super. 171, 35 A.2d 766 (1944). It follows, therefore, that the Iehles had an insurable interest in the entire property purchased and not, as the insurer argues, merely to the extent that they had made payments on account of the full purchase price at the time of the fire. Therefore, the insurer is liable for the full amount of appellees’ loss.

A contract of fire insurance, in simple language, means this: For the premium paid by the insured, the insurer will, in case the insured’s building is destroyed by fire, indemnify him to the extent that he can show that his wealth has been depleted by that fire. In other words, the insurance company gives the insured the equivalent in money of the building lost by fire. The “loss” which the insurance company contracted to pay to the owner of the building in the event of its destruction by fire is the actual worth in money of that building before it was destroyed.

Dubin Paper Co. v. Ins. Co. of N.A., supra at 82, 63 A.2d at 92.

The liability of the insurer to indemnify the insured for damages sustained by fire is not defeated because the fire was intentionally set by a third person. See: Giacobetti v. Insurance Placement Facility of Pennsylvania, 500 Pa. 447, 457 A.2d 853 (1983). After the insurer has paid the loss sustained by the insured, of course, the insurer is subrogated to the rights of its insured against the third person arsonist. This is not altered merely because the arsonist continued to have contractual rights to be paid the full purchase price by the insured to whom he had sold the insured property.

The insured in the instant case did nothing to impair the subrogation rights of the insurer. The Iehles did not release the third party arsonist from liability for his wrongful acts and they did not, by their conduct, waive or forfeit their right to pursue a tort claim against him.

The tort claim against the arsonist is separate from the contractual rights and duties existing between the buyer-insured and the seller of the insured property. The occurrence of the fire did not per se alter the buyer’s obligation to pay the purchase price or the seller’s obligation to convey title as provided in the written agreement of sale. Moreover, the decision of the buyer and seller to modify their contract rights inter se following the fire did not alter the rights existing between insurer and insured as established by the policy of fire insurance. The rights of the appelleebuyers against their fire insurance company are not impacted by their decision after the fire to settle and modify the terms of their contract to buy from the seller. It is true, of course, that the seller has been convicted of intentionally setting the fire which destroyed the insured property. The insured-buyers, however, are innocent parties, who settled their contractual rights with the seller without knowledge that he was the person who had set the fire. Therefore, their rights vis-a-vis the appellant insurer have not been forfeited or impaired in any way by their post-fire attempt to modify the contractual rights between themselves and their seller.

We do not now decide or express any opinion regarding the rights of the buyer against the seller. Those rights are the subject of litigation which is still pending in the trial court. Similarly, we do not now decide Coleman’s liability for his act of arson or the availability of funds to pay the insurer’s subrogation claim. Appellant did not assert a set-off in the proceedings now before us, and with respect to the means by which it can assert and collect its claim against the seller-arsonist we express no opinion. It is enough for our purposes that the insurer’s liability to its insured is clear and that the parties have stipulated to the insured’s loss. The trial court properly entered judgment in favor of the insured and against the insurer for this amount.

In a cross-appeal, the Iehles contend that the insurance company’s appeal is frivolous and that, pursuant to Pa.R.A.P. 2744, they should receive an award for costs, counsel fees, and delay damages. We reject this argument. “An appeal is frivolous when the realistic chances of ultimate success are slight and continuation of the contest is unreasonable.” Washington Township Municipal Authority v. Pa. Labor Relations Board, 131 Pa.Commw. 36, 43, 569 A.2d 402, 405 (1990). The principal issue in the instant case is not only novel but, in our judgment, challenging as well. An appeal under these circumstances is not frivolous and does not warrant an imposition of counsel fees and costs upon the appellant. There also is no basis for imposing delay damages upon appellant. Its liability is for interest on the amount owed, which is determined at the legal rate.

Judgment affirmed.

      . The insureds were named as Iehle Enterprises, Inc., G. Fred Iehle and Joan R. Iehle.

      . The insured named in this policy was B.F. Knits, Inc., a corporation owned by the Iehles.

      . A motion to reconsider the denial of allocatur is still pending.

      . A separate action was filed by the Iehles against Coleman in an effort to set aside their earlier agreement to settle Coleman’s actions against them. In this action, the trial court denied a motion for summary judgment, and the action has not been determined finally.

      . The appeal recited that it was being taken from the summary judgment of June 26, 1989. This caused the appellee insured to move to quash the appeal on grounds that it had been taken from an interlocutory and non-final order. The motion to quash was denied by the Superior Court without prejudice to appellee’s right to renew the same at argument. We are satisfied, however, that the summary judgment possessed sufficient indicia of finality to support an appeal. It was a final determination of liability and also the amount thereof, lacking only the ministerial act of computing pre-judgment interest. The appeal, moreover, was timely whether meausred from the entry of summary judgment or the later order adding interest and entering judgment for the full amount payable. Thus, we treat the appeal as having been perfected and consider the merits thereof.


author: HUDOCK, Judge: DEL SOLE, Judge,

text:
    584 A.2d 992
    COMMONWEALTH of Pennsylvania, Appellee, v. Paul CODY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 7, 1990.
    Filed Jan. 4, 1991.
    Petition for Allowance of Appeal Denied May 8, 1991.

      John Woodcock, Jr., Public Defender, Hollidaysburg, for appellant.
    David Gorman, Asst. Dist. Atty., Hollidaysburg, for Com., appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Appellant after he was found guilty, at the conclusion of a jury trial, of involuntary deviate sexual intercourse, indecent assault and corruption of minors. Timely filed post-verdict motions were denied by the trial court and Appellant was sentenced to an aggregate term of five to ten years incarceration. This direct appeal followed.

Appellant’s convictions were the result of an incident that took place on February 13,1987 at the Waffle King Restaurant in the City of Altoona. This restaurant was owned by Appellant, and Sherri Ann Knox (the victim) worked there as a hostess. Prior to closing, the victim was told to go to the basement in order to replenish the cookies used at the restaurant. The victim was followed by the Appellant, who then sexually assaulted her there.

The first claim raised by Appellant is whether the evidence introduced by the Commonwealth was sufficient to prove Appellant’s guilt beyond a reasonable doubt. In order to review this claim, we must accept all evidence and all reasonable inferences therefrom, upon which the fact-finder could have based the verdict, in order to determine whether the Commonwealth’s evidence was legally sufficient to support the verdict. Only where the evidence, when so viewed, is insufficient to establish guilt beyond a reasonable doubt as to the crimes charged is relief granted. Commonwealth v. Robinson, 351 Pa.Super. 309, 505 A.2d 997 (1986).

In a prosecution for sex offenses, a verdict may rest on the uncorroborated testimony of the victim. 18 Pa.C.S.A. § 3106; Commonwealth v. Smith, 280 Pa.Super. 222, 421 A.2d 693 (1980). Thus, in the present case, the victim’s testimony alone provided sufficient evidence to establish the crimes, with which Appellant was convicted, beyond a reasonable doubt. The discrepancies alleged by Appellant at trial, as to the victim’s description of the assault, and in prior proceedings and reports of medical personnel, are not significant and cannot be said to render the evidence insufficient. Therefore, this claim is without merit.

Appellant next claims that he was denied a fair trial when his pre-trial motion to obtain the police reports and statements of all witnesses was denied. More specifically, Appellant claims that he was denied the statement of Sally Schmidt, an alibi witness, whose statement was later used by the Commonwealth during the presentation of its case in chief. While this claim, as stated, has some appeal, a close examination of the record reveals that it is without merit.

In the present case, Appellant filed a notice of an alibi defense and identified several alibi witnesses, including Sally Schmidt. Pa.R.Crim.P., Rule 305(C)(1)(a), 42 Pa.C.S.A. The Commonwealth did not file, as required by rule, the names and addresses of any persons who would be called as witnesses to disprove the alibi defense. Pa.R.Crim.P., Rule 305(C)(1)(c), 42 Pa.C.S.A. At trial, Sally Schmidt was called by the Commonwealth and a request was made that she be declared a hostile witness. This request was granted by the trial court.

Appellant claims that he should have received the statements made by Ms. Schmidt, since she was called by the Commonwealth to rebut his alibi defense. Appellant’s alibi was that he was located in the main dining room, having dinner, during the alleged offense. A careful review of the record, however, reveals that the testimony elicited from Ms. Schmidt by the Commonwealth did not rebut Appellant’s alibi. Indeed, Appellant admits that the only reason the Commonwealth called her as of cross was that she gave conflicting statements as to whether she was working on February 14, 1987, the day after the alleged incident. (N.T. at p. 140). Thus, Appellant was not entitled to Ms. Schmidt’s statements pursuant to Pa.R.Crim.P., Rule 305(C)(1)(c), supra.

As a related claim, Appellant argues that the trial court erred in qualifying Ms. Schmidt as a hostile witness. We do not agree. The Commonwealth may utilize the prior inconsistent statement of a non-party witness to impeach the credibility of that witness, and also for the substantive value of the prior inconsistent statement, as long as the witness was available for cross-examination by the defense. Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). As in Brady, both the Commonwealth and Appellant questioned Ms. Schmidt as to the validity of her statements, and the jury was given the opportunity to observe her demean- or, hear her explanations for the inconsistency, and assess her credibility. Thus, Appellant’s claim is without merit.

Appellant next claims that the trial court erred in allowing the Commonwealth to present evidence that he failed to report to the police the fact that he was assaulted by David B. Riley, the victim’s boyfriend. Appellant claims that this evidence was irrelevant. We do not agree. Matters relating to the admissibility of evidence are controlled by the trial court’s discretion and an appellate court will not reverse the trial court’s ruling absent a clear abuse of discretion. In Interest of Hyduke, 371 Pa.Super. 380, 538 A.2d 66 (1988). Evidence is admissible in a criminal case if it logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or if it is a basis for or supports a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. Davis, 381 Pa.Super. 483, 554 A.2d 104 (1989). With these standards in mind, we shall review Appellant’s claim.

Mr. Riley testified that he assaulted Appellant and informed him that the basis for the attack was in retaliation for the assault of the victim. The testimony at trial established the following facts regarding the incident: Mr. Riley entered the restaurant and asked Appellant for an application while waiting for an elderly couple to leave the area. After they left, Mr. Riley started to yell at Appellant and “poke him in the face a couple times.” (N.T. at p. 87). Mr. Riley then asked Appellant if “he like[d] messin’ around with young girls like my girlfriend Sherri Knox. (N.T. at p. 88). After denying that he knew what Mr. Riley was talking about, Appellant asked the other man to go with him into his office. Mr. Riley then pushed Appellant, pulled an oak club out from beneath his jacket and hit him four or five times in the head. Appellant then fell to the floor and Mr. Riley left the restaurant. Mr. Riley was neither prosecuted for this assault upon Appellant nor was it ever brought to his attention that a report had been filed as a result of the incident. Appellant testified that he did not know who Mr. Riley was when he was attacked by him. However, that same day, after he was informed that the victim called off work, Appellant testified that he realized the identity of Mr. Riley.

Upon reviewing these facts in the context of the entire record, we conclude that the trial court did not abuse its discretion in allowing this evidence since it was relevant to Appellant’s knowledge of guilt. Moreover, the conduct of a criminal defendant indicating such a “consciousness of guilt” is admissible as an implied admission. See e.g., Commonwealth v. Berrios, 495 Pa. 444, 434 A.2d 1173 (1981) (flight or concealment of whereabouts or identity); Commonwealth v. Glass, 486 Pa. 334, 405 A.2d 1236 (1979) (false denial of guilt). As in these cited cases, the failure to report the vicious assault in the present case provided relevant information tending to infer Appellant was aware of his guilt. Finally, Appellant, in his brief, does not allege any specific prejudice caused by the admission of this evidence. Appellant’s analogizing the admission of this evidence to a comment on his post-silence arrest is without merit.

Appellant next claims that the trial court erred in allowing the Commonwealth to call witnesses to testify concerning the victim’s demeanor after the alleged incident. Upon review of the record, this Court finds that the trial court was careful in restricting the lay opinion testimony from the Commonwealth to physical observations of the victim after the alleged assault. The trial court remained steadfast in its refusal to allow any witness to testify as to the victim’s emotional state. The existence of a readily observable physical condition, which does not require a complex application of technical knowledge, can as easily be ascertained by a lay person as by a trained expert. See Commonwealth v. Green, 251 Pa.Super. 318, 380 A.2d 798 (1977). Thus, the trial court did not err in allowing such testimony.

A related claim made by Appellant is that by allowing the Commonwealth to elicit testimony regarding the victim’s physical appearance by a crisis center counselor was error since the jury would believe she was a witness who had experience in dealing with rape victims. Appellant concludes that the jury would consider her testimony as that of an expert, even though the trial court refused to qualify her as an expert at trial.

An examination of the record demonstrates that such an assertion is without merit. At a side-bar conference, the trial court specifically instructed the attorney for the Commonwealth that an expression of opinion was not to be elicited from this witness. (N.T. at p. 132). In her brief testimony, the witness, Patricia Johnson, identified herself as a community crisis counselor at the Community Crisis Center at Altoona Hospital. Other than this identification, the remainder of her testimony consisted of nothing more than physical observations of the victim; it did not indicate that the conduct and the appearance of the victim was consistent with those normally attributable to sexual assault victims. Thus, the jury was not presented with any testimony from Ms. Johnson by which they could reasonably expect her to be an expert. The mere identification of her occupation, without more, is insufficient to demonstrate any prejudice to Appellant.

Appellant’s final claim is that the trial court erred in preventing him from obtaining the rape counselling records of the victim. As part of the omnibus pre-trial motions filed by Appellant, a request was made that Appellant be permitted to inspect the records of the Sexual Assault Volunteer Effort (SAVE) concerning the interviewing and counselling of the victim. The trial court denied this request, citing the privilege conferred to sexual assault counselors at 42 Pa.C. S.A. § 5945.1(b). In denying this request, the trial court also stated that any subpoena that may have been issued to SAVE or any of its authorized representatives was quashed.

Appellant now claims that his basis for requesting the records was to ascertain what the victim told the counselors about the facts of the alleged offense. The Commonwealth claims the recent United States Supreme Court decision in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), brought about a change in the law, in regard to the privilege which attaches to these records, between the time of Appellant’s trial and this decision. Thus, Appellant claims that the merit of Appellant’s claim depends upon whether the decision in Ritchie is applied retroactively or prospectively. However, we need not address the accurateness of this issue, as framed by the Commonwealth, since its resolution is not necessary to a decision regarding Appellant’s claim.

Although the United States Supreme Court intimated in dicta in Ritchie that an unqualified statutory privilege for communications between sexual assault counselors and victims was granted by 42 Pa.C.S.A. § 5945.1(b), appellate decisions in Pennsylvania have consistently held otherwise. The law in this area is quite clear. When such a request is made, the trial court is to conduct an in camera inspection of the records. The trial court is to review the records and determine if the file contains any “statements” of the victim which may bear on the facts of the alleged offense. Not only are these statements to be verbatim declarations of the victim and acknowledged as accurate by her, but they must have a direct relationship to the facts of the alleged offense and not to counselling services provided to the victim. In the Matter of Pittsburgh Action Against Rape (PAAR), 494 Pa. 15, 428 A.2d 126 (1981).

Subsequent to PAAR, the Legislature enacted the statute which granted sexual assault counselors a privilege regarding the confidential communications made to them by victims of sexual offenses. Act of 1981, December 23, P.L. No. 169, section 1. This statute was codified at 42 Pa.C. S.A. § 5945.1. Subsection (b) of this section grants sexual assault counselors a privilege not to be examined in any court proceeding without the prior written consent of the victim. 42 Pa.C.S.A. § 5945.1(b). This legislation was the likely result of the Pennsylvania Supreme Court’s failure to find a common law absolute privilege regarding these communications.

In cases decided subsequent to the enactment of this statute, however, this Court has held that the privilege granted by § 5945.1(b) is inapplicable to a situation where the criminal defendant does not attempt to call a sexual assault counselor as a witness. Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986); Commonwealth v. Wilson, 375 Pa.Super. 580, 544 A.2d 1381 (1988). In such a situation, the trial court is to engage in an in camera inspection of the records in accordance with the guidelines first set forth in PAAR, supra. Thus, since Appellant only desired a review of the SAVE files to discover any statements made by the victim to the counsel- or, which would relate to the facts surrounding the alleged offense, the trial court should have conducted an in camera inspection of the SAVE records. Accordingly, the judgment of sentence is vacated. We remand to the trial court for an in camera proceeding consistent with this opinion. If the court concludes that any or all of the materials released to it by SAVE are statements of the victim that should have been disclosed to Appellant and the jury, then a new trial shall be granted. If, however, the court concludes that the materials are not statements of the victim, or are statements relating only to counseling services, and thus outside the scope of review permitted Appellant, the court shall reimpose sentence.

Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

BECK, J., concurs in the result.

DEL SOLE, J., files a concurring and dissenting statement.

DEL SOLE, Judge,

concurring and dissenting statement.

I join the majority’s analysis in all respects save one. I would find that the trial court erred in admitting the testimony of David B. Riley and, therefore, I would grant a new trial. The admission of this testimony does not evidence guilt as suggested by the majority. Rather, there can be many reasons why an assault is not reported to the police not the least of which is that the owner of a restaurant would not want the publicity associated with an assault at the place of business.

      . Appellant also couches this claim in terms of the jury’s verdict being against the weight of the evidence. Since such a claim basically turns on the credibility of the witnesses, such an issue is not appealable to this Court. Commonwealth v. Nelson, 514 Pa. 262, 271, n. 3, 523 A.2d 728, 733, n. 3 (1987); Commonwealth v. Fuller, 396 Pa.Super. 605, 579 A.2d 879 (1990).

      . In the order, the trial court inadvertently cited this section as 42 Pa.C.S.A. § 5946(b).


author: PER CURIAM. MONTEMURO, Judge

text:
    584 A.2d 997
    COMMONWEALTH of Pennsylvania, Appellee, v. Joseph Peter MILICE, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 21, 1990.
    Filed Jan. 8, 1991.

      Salvatore F. Bello, Norristown, for appellant.
    William Carpenter, Asst. Dist. Atty., Norristown, for Com., appellee.
    Before CIRILLO, President Judge, and MONTEMURO and MONTGOMERY, JJ.
   PER CURIAM.

This is an appeal from an order entered pursuant to the Mental Health Procedures Act, 50 P.S. § 7101 et seq., continuing appellant’s involuntary commitment to Farview State Hospital. We affirm.

On February 5, 1988, appellant, without provocation, attacked several of his neighbors, stabbing three adults, chasing and attempting to stab two children and stabbing a dog. As a result, criminal charges were brought and appellant entered a plea of not guilty by reason of insanity. After a bench trial on June 30, 1988, appellant was found not guilty by reason of insanity. The Commonwealth then filed a petition to have appellant committed for involuntary psychiatric treatment. After a hearing on August 25, 1988, the court ordered appellant to be committed to Farview State Hospital for a one-year period of inpatient psychiatric hospitalization. At the end of this initial commitment, a petition was filed seeking an order for continued involuntary commitment and requesting a transfer to a civil or VA hospital. Hearings were held on August 25, 1989, and October 2,1989, at the conclusion of which the instant order was entered. This appeal followed.

Appellant initially contends that the trial court erred in denying his request to close the hearings to the public. Relying on 50 P.S. § 7304(e)(4), appellant contends that the court was required to close the hearings upon his request. Section 7304(e)(4) provides: “The hearing shall be public unless it is requested to be private by the person or his counsel.” Appellant interprets this language to mandate closing the hearing upon the mere request of the respondent. We do not agree.

The common law tradition of open and public trials, in both the civil and criminal areas, is centuries old. See, Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3rd Cir.1984). In Pennsylvania, this tradition is embodied in Article I, § 11 of the Pennsylvania Constitution: “All courts shall be open.” The principle of openness is also supported by the First Amendment to the United States Constitution. Id.; Hutchison v. Luddy, 398 Pa.Super. 505, 581 A.2d 578 (1990). Only in rare instances is the public routinely excluded from the courtroom. For example, the Juvenile Act provides that “the general public shall be excluded from hearings under this chapter.” 42 Pa.C.S. § 6336(d). Even that statute, however, excludes only those persons who have no proper interest in the proceeding. The victim, counsel for the victim and persons accompanying a party or a victim for his or her assistance as well as persons having a proper interest in the proceeding or in the work of the court are properly admitted by the juvenile court. Id. The Rules of Civil Procedure permit the trial court to exclude the public or persons not interested in the proceedings only when the court deems such exclusion “to be in the interest of the public good, order or morals.” Pa.R.Civ.P. 223.

In the instant case, the language of the statute itself is mandatory only in stating that the hearing shall be public unless requested otherwise. As noted by our Supreme Court: “If a private hearing is ‘requested,’ this does not necessarily mean, as a matter of verbal logic, that the request must be honored.” Matter of Seegrist, 517 Pa. 568, 574 n. 15, 539 A.2d 799, 802 n. 15 (1988). Absent more explicit statutory language and in light of the lengthy and powerful tradition of openness, we are unable to conclude that the Mental Health Procedures Act mandates closure of a hearing on the mere request of the patient. It was therefore within the discretion of the trial court whether or not to grant appellant’s request.

This discretion is not absolute. Katz v. Katz, 356 Pa.Super. 461, 514 A.2d 1374 (1986). In Katz, this court adopted the standard set forth in Publicker Industries, supra, that closure is warranted where “disclosure will work a clearly defined and serious injury to the party seeking closure.” The only reason advanced by appellant herein was that the hearing would involve confidential medical testimony about his mental illness. In any hearing under the Mental Health Procedures Act, the evidence is likely to involve at least some confidential medical testimony. Nevertheless, § 7304(e)(4) specifies an open hearing. Thus, something more must be required in order to demonstrate that the hearing should be closed. In the instant case, the other factors considered by the trial court amply support the decision not to close the hearing. The court first noted that because appellant entered an insanity plea, he himself placed the issue of his mental illness before the court in an open criminal proceeding. Further, the criminal proceeding was widely covered by the press. Therefore, the initial accounts of appellant’s mental illness were already public knowledge. Furthermore, although some of the testimony in the current hearing dwelt on specifics of appellant’s illness, much of the testimony involved a comparison of the various institutions to which appellant was seeking transfer. Of the experts who testified, two testified only to the respective security and therapeutic aspects of their facilities and two were experts who had previously testified at the criminal trial. Only one of the experts was a treating psychiatrist who had a physician-patient relationship with appellant. The trial court also considered the public interest in the hearing, finding it to be substantial.

“The appellant had engaged in a violent outburst seriously injuring and terrorizing neighbors in the community in which he lived prior to this commitment. There is always a significant public interest in civil commitment proceedings which arise after a criminal acquittal by reason of insanity which is akin to the public interest in criminal trials. The interest in this case was heightened because the victims of the crime were appellant’s neighbors and had legitimate concerns about his potential return to their community or to what they perceived would be a less secure facility very close to that community.”

Opinion at 15.

Furthermore, the court considered the benefit to appellant should the court decide that a change in treatment facility is appropriate or that continued commitment is no longer required.

“The process inevitably breeds tension between appellant’s interest in fully restoring his mental health and returning to the community and public pressure to continue his commitment. Public scrutiny assures that the court’s decision to continue commitment is based on the record developed at the hearing. In addition, should the court decide that commitment is no longer indicated, openness serves to put the facts forward, educate the public and allay fears.”

Opinion at 16.

We conclude that the trial court considered all the relevant factors in making its decision and did not therefore abuse its discretion in refusing to close the hearing.

Appellant also contends that the trial court’s finding that Farview State Hospital provides the least restrictive environment consistent with appellant’s needs for treatment was against the weight of the evidence. In its opinion, the trial court has thoroughly reviewed the evidence, the applicable case law and the reasons for its findings. We see no need to add anything to that opinion and therefore affirm this finding based on the trial court’s opinion.

Order affirmed.

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

MONTEMURO, Judge

concurring and dissenting:

I agree with the majority that the trial court’s determination that Farview State Hospital provides the least restrictive environment for rehabilitating appellant was not against the weight of the evidence. I must dissent, however, from what I believe to be the majority’s disregard of the plain meaning of the statute concerning court-ordered involuntary treatment.

Title 50 Pa.S.A. § 7304(e)(4) states: “The hearing shall be public unless it is requested to be private by the person or his counsel.” The definition of unless is “except on the condition that: under any other circumstance that.” Webster’s Ninth New Collegiate Dictionary at 1292, 1986. Given this definition, I read the statute to mean that if a person requests a private hearing, then the hearing should be private; there is no language contained in the statute which supports the majority’s conclusion that it is within the discretion of the hearing judge to decide whether the hearing will be public. In the instant case, appellant and his counsel expressed appellant’s desire for a private hearing; therefore, it should have been private.

For support, the majority relies on the recent Pennsylvania Supreme Court case of Matter of Seegrist, 517 Pa. 568, 539 A.2d 799 (1988). There, Sylvia Seegrist was before the court for an informal conference conducted pursuant to Section 303 of the Mental Health Procedures Act. Under that section, an individual can only be involuntarily committed for up to twenty days, and unlike Section 7304 applicable herein, there is no provision for a private proceeding. In explaining why Ms. Seegrist’s request for a private conference was correctly denied, the supreme court stated:

None of Appellant’s medical records was presented as evidence of her mental condition. No information was disclosed which intruded upon Appellant’s privacy, and no testimony was given in violation of the psychotherapist-patient privilege. Accounts of Appellant’s psychiatric history, containing far more detail than evidence adduced at the commitment hearing, had already been published in the local newspapers. Thus, because the court would not have been protecting any privacy right of Appellant, by closing the hearing, the decision to make it an open hearing was correct.

Seegrist, supra, 517 Pa. at 576, 539 A.2d at 803 (emphasis supplied).

By contrast to Seegrist, in the instant case appellant’s medical records were presented as evidence and were discussed by psychiatrists involved in appellant’s case. See N.T., August 25,1989 at 44-45, 53; N.T., October 2,1989 at 6-7. The evidence about appellant’s medical and psychiatric history was detailed and extensive, covering more than what the newspapers previously had access to. Moreover, the circumstances were different, as Seegrist merely involved a current placement, whereas the instant case involved a petition by Farview State Hospital for appellant to be transferred to another institution, to which he would be committed for at least a year. It was not appellant’s first commitment proceeding; thus, a great deal of information from the Farview doctors about appellant’s progress was brought to the court’s attention. Appellant’s privacy rights were infringed upon in this case because appellant’s attorney was forced to call appellant’s doctors to the witness stand and violate the physician-patient privilege in front of community members and the press.

The majority analyzed the factors that the trial court considered when deciding to hold a public hearing, but the analysis is not convincing. The majority states that “the only reason advanced by appellant herein was that the hearing would involve confidential medical testimony about his mental illness. In any hearing under the Mental Health Procedures Act, the evidence is likely to involve at least some confidential medical testimony.” Majority Opinion at 99. As the statute’s language and the supreme court’s interpretation indicate, this is exactly what the legislature wanted to protect against, that is, allowing the public to hear confidential testimony regarding the deeply personal details of the individual’s mental illness.

The majority quote from Seegrist, supra, 517 Pa. at n. 15, 539 A.2d at 802 n. 15, is both incomplete and dicta. The entire note 15 reads:

While on its face, Section 304(e)(4) does appear mandatory at first reading, due caution is necessary. If a private hearing is “requested,” this does not necessarily mean, as a matter of verbal logic, that the request must be honored. A recent trial court decision in Lehigh County apparently held Section 304(e)(4) was discretionary and not mandatory. See, In re Fitzinger____ We express no definitive view on this issue, however.

Id. In the main text of the Seegrist opinion the Court also states that “[w]e express no view on the question of whether Section 304(e)(4) is mandatory or not____” Id. It is incorrect, then, to infer that Seegrist stands for the proposition that Section 304(e)(4) gives the trial court discretion to hold a public hearing despite a person’s request for a private one.

Furthermore, the Court in Seegrist recognized that “the scheme adopted by the legislature here envisions that more extensive procedural or ‘due process’ protections will apply as the amount of time a person may be deprived of liberty increases above a bare minimum.” Id,., 517 Pa. at 574, 539 A.2d at 802. Sylvia Seegrist was only being involuntarily committed for 20 days whereas the appellant in the current case was having a formal adjudicatory hearing for a commitment of one year. Appellant’s interests in a closed hearing and more procedural rights, then, are greater than Seegrist’s because his potential loss of liberty is much longer. Holding a private hearing would be consistent with the supreme court’s analysis of the Mental Health Procedures Act and its scheme of increasing protections as individuals face longer commitments.

For support, the majority relies on its assertion that appellant placed the issue of his mental illness before the public in his criminal trial, and therefore the public was already aware of his diagnosis. This factor is less than determinative, however, as the criminal hearing was over a year before the instant civil proceeding, and at the criminal trial appellant had no choice about pleading as he did. When appellant acted, he was insane, and he pled as such. Further, if this were the test, then in any case in which a defendant pleads insanity, he or she will lose the right to have a closed hearing under the Mental Health Procedures Act. Such an interpretation would render § 304(e)(4) meaningless. During a year at Farview, appellant underwent treatment and made some progress, about which doctors testified. This new information, in all its detail, was not known to the public, nor was it the public’s business to know.

The majority also relies on the trial court’s finding that the victims and neighbors had a legitimate interest and concern about appellant’s possible return to the neighborhood. This argument is unpersuasive. The record is clear that appellant is severely ill: his illness was, in fact, judicially determined. It is highly doubtful that he will ever leave an institutional setting, much less return to the neighborhood. See N.T., August 25, 1989 at 41, 54, 57; N.T., October 2, 1989 at 73 (doctors testify that it is unlikely that appellant will be able to leave hospital setting).

Finally, the majority examines the fact that only some of the doctors that testified had a physician-patient relationship with the patient, while the others merely testified about the facilities and programs at various institutions. The number of witnesses breaking the physician-patient privilege is irrelevant; for even one to have done so violates the individual’s privacy rights.

Individuals who are, and must be, shut away in mental institutions have little freedom and little self esteem. The statute permits the court system to provide these people a measure of dignity. While there may be some public interest in allowing the public to sit in on appellant’s hearing, I believe that our Legislature has made the determination, codified in § 7304(e)(4), that in cases as the instant one, the choice as to whether the hearing will be public belongs to the individual, not to the court. Appellant and his attorney expressed his desire for a private hearing because they felt that a public hearing would be embarrassing and counterproductive to his therapy. The public does not need to know what drug appellant is on or what secure institution he is living in. As Justice McDermott stated in his dissenting opinion in Seegrist, “[t]here is no reason, beyond the person’s own request, why the public should be invited to sit beside their bed and overhear their physicians,” 517 Pa. at 578, 539 A.2d at 804 (McDermott, J., dissenting).

For the above reasons, I dissent.

      . Although the hearings have already been held, this issue falls under the exception to the mootness doctrine being a question capable of replication yet evading judicial review. Matter of Seegrist, 517 Pa. 568, 539 A.2d 799 (1988).


text:
    584 A.2d 1002
    COMMONWEALTH of Pennsylvania, Appellee, v. Carletta M. TODD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 7, 1990.
    Filed Jan. 8, 1991.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from a judgment which sentenced Appellant Carletta M. Todd (hereinafter “Appellant”) for one count of Possession with Intent to Deliver a Controlled Substance, (cocaine) 35 Pa.S. § 780-113(a)(30), and one count of Possession of Controlled Substance, (cocaine), 35 Pa.S. § 780-113(a)(16). The court denied Appellant’s pretrial suppression motion. The suppression hearing testimony was incorporated, by stipulation, into Appellant’s subsequent non-jury trial. The convictions and Appellant’s sentence ensued. A timely filed post-trial motion for new trial and/or in arrest of judgment was denied, preserving the issues on appeal. We vacate the judgment of sentence and remand.

On Wednesday, September 14, 1988, Police Officers Barbara Roberts and Anthony O’Learchick, agents from the Attorney General’s Bureau of Narcotics Investigation and Drug Control, were on a regular assignment at the Greater Pittsburgh International Airport, staking out smugglers from known “drug source” cities. Appellant disembarked U.S. Air Flight 444, which originated in Miami. According to the court below:

[Appellant] caught [the police officers’] eye. As Roberts later described it, [Appellant’s] walk was deliberate and awkward, as though something was restricting the movement of her legs. Further adding to the officers’ suspicions was [Appellant’s] full, bulky clothing. They knew from their training that these characteristics were consistent with methods used by people transporting narcotics. Accordingly, Roberts and O’Learchick followed [Appellant] ...

Trial court opinion, at p. 2.

Appellant placed her one piece of luggage, a plastic bag that she was carrying, and her purse, on a security check x-ray machine. During x-ray of the suitcase, Agent Roberts observed two oblong packages therein. Appellant then checked in at the connecting gate. The officers, who were not in uniform, approached Appellant and identified themselves. Agent Roberts displayed her badge. Appellant agreed to talk to the officers, and indicated to them that she had been in Florida visiting with family. Roberts asked to see Appellant’s ticket, which had been issued in the name of “Tonya Green”. This ticket had been purchased with cash, and no baggage stubs were attached thereto. Appellant Todd responded to Roberts’ inquiries by indicating that her name was Tonya Green, and that she had no identification with her. Roberts asked for consent to search Appellant’s suitcase, explaining that she had observed two oblong packages therein. Appellant agreed. Roberts filled in a consent index card and indicated that Appellant’s “carry on bags/purse/person” would be searched. At this point Appellant became “very nervous”. The officer instructed Appellant that she had the right to refuse the search. Appellant indicated that it would embarrass her, and twice conveyed her refusal. Roberts once again inquired about Appellant’s identification. Appellant replied that it had been stolen from her hotel room. Because Roberts found this to be inconsistent with prior indications concerning a family visit, she decided to perform a pat-down search. Upon Appellant’s request, the search was conducted in a ladies room, and four plastic bags containing a white substance were discovered in Appellant’s belly area.

Based on the above, the trial court concluded:

[T]here [is no] question, based on the information solicited from [Appellant], together with the police officers’ own observations and their knowledge of the drug courier profile, that specific and articulable facts existed to indicate that criminal activity was taking place. [Citation omitted]. [Appellant], a 19-year-old young woman, of average height and weight, waddled through the terminal in a belabored fashion. She wore bulky, flowing clothing. She continually looked over her shoulder as she made her way from one end of the terminal to the other. She checked no baggage. She paid for her ticket in cash. She carried no identification. She had spent a very short period of time in a key drug trafficking city. She became noticeably distraught when confronted with the possibility of a body search. All of these factors, if taken alone, might, arguably, be consistent with innocent behavior. When viewed as a whole, however, they created a reasonable degree of suspicion of criminal activity, which the agents were permitted to investigate in the least intrusive manner available. [Citations omitted]. The subsequent Terry pat-down satisfied that criterion.

Trial court opinion, at pp. 4-5.

Based on the above, the court concluded that “[t]he resultant discovery of substantial quantities of cocaine, therefore, was the product of a non-coercive encounter which, in turn, gave rise to suspicions, based on articulable facts, which justified the Terry search and produced the illegal contraband.” (Trial court opinion, at 5.)

Appellant, claiming an absence of specific facts which would have led a reasonable person to believe that she was engaged in criminal activity, argues that her Fourth Amendment rights (as interpreted by Terry) have been violated. She maintains that even were the initial interception something other than a “seizure”, a seizure ensued upon the officers’ request for her ticket, identification, and permission to search. It is her position that even if the officers could articulate reasons for a Terry stop, none existed for a Terry search. Moreover, the failure to reveal a weapon, allegedly undercut any basis for further exploration. Appellant contends that the stop, detention, search, and arrest violated her Fourth Amendment rights, and she advocates the suppression of all fruits produced as a result. Moreover, she claims an absence of probable cause to search, or to arrest prior to searching.

We note that the factual findings made by the suppression court are not in dispute. As such, our role on appeal is to determine if the conclusions of law drawn from those findings are correct. Commonwealth v. Reddix, 355 Pa.Super. 514, 516, 513 A.2d 1041, 1042 (1989). Reversal is appropriate only where there is error in the legal conclusions drawn from the facts. Id.

In In the Interest of Kathleen Jermaine, 399 Pa.Super. 503, 582 A.2d 1058 (1990), our Court asserted:

Not every encounter between a citizen and the police is so intrusive as to trigger the protections provided by the Fourth Amendment to the United States Constitution. There is nothing in the Constitution which prevents a policeman from approaching a person on a public street or in a public place in order to make inquiries of that person. “A seizure of a person sufficient to trigger the protections of the Fourth Amendment occurs ‘only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.’ ” Factors to be considered in determining whether an encounter with police rises to the level of a seizure of the person include “whether the officer makes a show of authority or exercises force, the officer’s demeanor and manner of expression, the location, and the content of any interrogatories or statement are relevant to the determination.”

Id., 399 Pa.Super. at 508, 582 A.2d at 1060. (Citations omitted.)

Under circumstances less concrete that those of the instant appeal, our court in the above case held that: “[The officer’s] encounter with [defendant] did not rise to the level of a seizure of her person which invoked Fourth Amendment protections.” Id., 399 Pa.Super. at 514, 582 A.2d at 1063. Likewise, prior to Appellant’s withdrawal of consent, there was not a Fourth Amendment seizure in the case at bar. Rather, the contact between the police and Appellant amounted to a non-coercive encounter for the purpose of making inquiries. Commonwealth v. Brown, supra. The encounter, however, developed into something more upon the officer’s decision to proceed with a pat-down search despite Appellant’s lack of consent. At this point the entire incident ripened into a “custodial detention”. See, Commonwealth v. Douglass, 372 Pa.Super. 227, 539 A.2d 412 (1988). A search incident to a lawful arrest would have followed if probable cause existed to support said detention. See, Commonwealth v. Stainbrook, 324 Pa.Super. 410, 471 A.2d 1223 (1984) (Warrantless search is proper where incident to a lawful arrest); Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988), appeal denied, 521 Pa. 617, 557 A.2d 721, and 521 Pa. 621, 557 A.2d 724 (1989) (Police officer may briefly detain suspect and then actually search if facts gleaned during detention ripen into probable cause to arrest; for purposes of the Fourth Amendment, absence of formal arrest is not dispositive). It is our conclusion, however, that such cause was absent. According to the Commonwealth, “[I]t is not the Commonwealth’s position that [the drug courier profile] characteristics, standing alone, would authorize, arguendo, a custodial detention. However, the facts gleaned through investigation here support a finding of probable cause.” (Commonwealth Brief, at p. 35). We disagree. Taken together with the drug courier characteristics which the officers observed, and which were discussed above, any finding of probable cause would have to rest on the following: Appellant’s awkward gait, the tension displayed by Appellant when she learned that her body may be searched, the withdrawal of consent, (not unusual reactions for anyone confronted with such a threat to their privacy), and a conceivably “inconsistent” reply to police inquiries. Probable cause exists only where the facts and circumstances would warrant a reasonable person, at the time of arrest, to believe that an offense had been committed, and that the suspect was the perpetrator. U.S.C.A. Const.Amend. 4; Commonwealth v. Ellis, 354 Pa.Super. 11, 510 A.2d 1253 (1986). There was no such cause herein. Accordingly, the evidence produced during the search was not incident to a lawful arrest, and should have been suppressed.

Judgment of sentence vacated, and case remanded for a new trial consistent with this opinion. Jurisdiction relinquished.

      . The Judgment reads:
      AND NOW, September 29, 1989, Defendant, Carletta Todd is sentenced to pay a fine of $25,000 to the Commonwealth, pay costs of prosecution, and undergo imprisonment of not less than four (4) years or more than ten (10) years and shall be committed to the custody of the Bureau of Correction for confinement in the State Correctional Institution at Muncy, or such other State Correctional Facility therein to receive females, and shall be delivered to the State Correctional Facility at Muncy, there to be kept, fed, clothed and treated as the law directs.
      DATE OF LAST COMMITMENT: May 4, 1989
      By the Court:
      Kelly, J.
      The court sentenced Appellant pursuant to the Mandatory Sentencing Provisions of 18 Pa.C.S. § 7508(a)(3).

      . This was a non-stop flight connecting to Washington D.C.

      . Later testing revealed that the substance was 78 percent cocaine by weight.

      . The court refers to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967).

      . The agents discovered four plastic baggies containing 996.2 grams of cocaine "... secured against [Appellant's belly and between her legs with a spandex girdle ...” (Commonwealth Brief, at p. 7).

      . Based on Commonwealth v. Brown, 388 Pa.Super. 187, 189, 565 A.2d 177, 178 (1989), the court found "that [Appellant] was never ‘seized’ prior to her actual arrest, within the meaning of the Fourth Amendment. Rather, ... the initial contact [was] a ‘mere encounter’, a non-coercive interaction which occurred in a public place for the purpose of making inquiries.” (Trial court opinion, at pp. 3-4.) "... [Appellant] had several avenues of egress available to her, and she could have simply walked away.” (Citation omitted. Id. at p. 4.)

      . In Jermaine, drugs were found in a bag carried by a juvenile from a rail station in New York City to Philadelphia. An Amtrak narcotics officer based in New York contacted the arresting officer in Pennsylvania, and relayed his suspicions about defendant. These suspicions were based on the following: Defendant purchased a one-way ticket with cash, defendant waited for the second call before boarding the train, defendant kept looking over her shoulder, and, defendant maintained eye contact with the New York officer. Upon arriving in Philadelphia, defendant appeared nervous, and denied having a train ticket as well as any identification.

      . As indicated by the Commonwealth:
      The agents wore no uniforms; displayed no weapons; did not summon but approached [A]ppellant; requested, not demanded, [A]ppellant’s identification and ticket, which were promptly returned; the parties were in a public concourse of an airport; and nothing suggested that [AJppellant had any objective reason to believe that she was not free to leave. (Commonwealth Brief, at p. 8).


author: OLSZEWSKI, Judge:

text:
    584 A.2d 1005
    Donald GILLIGAN, Appellant, v. VILLANOVA UNIVERSITY, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 27, 1990.
    Filed Jan. 8, 1991.

      Patrick J. Egan, Philadelphia, for appellant.
    George D. Sheehan, Jr., Philadelphia, for appellee.
    Before OLSZEWSKI, TAMILIA and HESTER, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order of the Court of Common Pleas of Delaware County dismissing appellant’s motion for a new trial and/or for the removal of nonsuit. The only issue before this Court is whether there was sufficient evidence presented, at the close of plaintiff's case, from which a jury could have imposed liability on appellee, Villa-nova University. For the reasons below, we affirm.

This case arises from a slip and fall by appellant, Donald Gilligan, on the campus of Villanova University on February 18, 1986, while walking across campus to attend a basketball game at the DuPont Pavillion. Appellant testified at trial that the weather was clear and cold and there had been snow flurries earlier in the day. He further testified that the conditions on campus that evening were treacherous due to ice and snow. Appellant’s accident occurred when he and his friend were approaching the DuPont Pavillion. The testimony indicates that appellant and his friend were walking toward the pavillion on a sidewalk which ended at some distance before allowing them to reach their destination. This sidewalk ended where another began, which would have provided access to the pavillion. Instead of using this latter walkway, which was not a direct path to the pavillion, the two men traversed a grassy area in direct route to the pavillion. It is on this grassy area where appellant fell. Appellant testified that this grassy area was snow covered, uneven, rather hilly and bumpy. Appellant testified that the sidewalks and driveways on the campus were not cleared off and the conditions were icy. (N.T. at 39.) Appellant did not walk on the street adjacent to the grassy area, as it also was iced. (N.T. at 43.)

At the close of appellant’s case, the court granted appellee’s motion for nonsuit. Appellant subsequently filed a motion for a new trial and/or for the removal of the nonsuit, which motion was denied. This appeal followed.

Our review of the compulsory nonsuit requires that we determine whether there was sufficient evidence from which a jury could have imposed liability on appellee.

The rules regarding compulsory nonsuit are well established. A judgment of nonsuit can be entered only in clear cases, and a plaintiff must be given the benefit of all evidence favorable to him, together will [sic] all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Flagiello v. Crilly, 409 Pa. 389, 390-391, 187 A.2d 289, 290 (1963). See Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970). Thus an order granting a nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the' plaintiff, could not reasonably conclude that the elements of the cause of action have been established. Ford v. Jeffries, 474 Pa. 588, 591-592, 379 A.2d 111, 112 (1977).
However, it is also well settled that a jury cannot be permitted to reach its verdict on the basis of speculation or conjecture, Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959); and that a judgment of nonsuit is properly entered if a plaintiff has not introduced sufficient evidence to establish the elements necessary to maintain an action.

Thomas v. Duquesne Light Co., 376 Pa.Super. 1, 545 A.2d 289 (1988) (citations omitted).

The trial court, in entering an order for compulsory nonsuit, held that the evidence presented by appellant was insufficient to support recovery on two different theories of liability. We discuss each theory of liability seriatim.

First, the trial court held that appellant failed to present sufficient evidence to meet the requirements of the doctrine of hills and ridges. This doctrine provides that an owner or occupier of land is not liable for general slippery conditions, for to require that one’s walks be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions in this hemisphere. Snow and ice upon a pavement create merely transient danger, and the only duty upon the property owner or tenant is to act within a reasonable time after notice to remove it when it is in a dangerous condition. Rinaldi v. Levine, 406 Pa. 74, 176 A.2d 623, 625 (1962). In order to recover for a fall on an ice- or snow-covered sidewalk, a plaintiff must prove (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.

Giosa v. School District of Philadelphia, 127 Pa.Commw. 537, 540-41, 562 A.2d 411, 413 (1989), citing Rinaldi v. Levine, supra.

The trial judge stated that appellant failed to present any evidence that the snow and ice on the area where he fell had accumulated in ridges and elevations, that appellee had notice of the allegedly treacherous condition, or that such condition caused appellant to fall. We agree with appellee that the doctrine of hills and ridges does not apply in the case sub judice, as appellant fell in a grassy area not intended to be traversed by pedestrians. It is only logical that the doctrine apply to areas such as sidewalks, parking lots, and other paved areas where pedestrians would be expected to travel. The purpose of the doctrine is to protect landowners from liability for slippery conditions of which the owner may not have notice or sufficient opportunity to make safe. If this doctrine were to apply to all areas of a landowner’s property, including grass areas, then a landowner would be responsible for clearing snow and ice from the entire property in order to avoid liability. Such an imposition would be impracticable and absurd. In any event, the trial court found that appellant failed to present sufficient evidence to impose liability under this doctrine; therefore, the court’s application of the doctrine to this case was harmless error.

The primary theory of recovery which appellant asserts in his brief was also dismissed by the trial court as being supported by inadequate evidence and, therefore, not entitled to consideration by a jury. This theory is based on appellee’s alleged negligence in failing to provide a sidewalk which leads directly to the pavillion from the point at which the sidewalk on which appellant had been walking ended. The trial court reasoned that because a sidewalk existed which provided indirect access to the pavillion, and because appellant failed to offer evidence regarding the inadequacy or unsafeness of this walkway, then there was insufficient evidence from which a jury could conclude that appellee was negligent in failing to provide a direct walkway to the pavillion. We believe the trial court’s disposition of this theory of recovery was correct. The evidence indicates that appellant had travelled to the campus for sporting events many times and knew of the existence of the sidewalk which would have provided indirect access to his destination. (N.T. at 6-9). Also, the record shows the existence of a roadway adjacent to the place where appellant fell. Appellant offered no evidence at trial that the sidewalk or the roadway were improperly maintained or inadequate. (Opinion of trial court at 2-3). Furthermore, appellant offered no expert testimony or other evidence which would have established a duty of appellee to provide a sidewalk in the area upon which appellant fell. Appellant has merely established that he voluntarily chose to walk upon an allegedly snow-covered grassy area, not intended to be traversed by pedestrians, and subsequently fell-. On these facts, we agree with the trial court that appellant has failed to state a cause of action in negligence.

Therefore, we affirm the trial court’s order of compulsory nonsuit. Order affirmed.

      . Appellant’s brief suffers from a defective format in that it violates Pa.R.A.P. 2116 by failing to state the questions presented on a separate page of paper. We consider the merits of appellant’s appeal nonetheless, but remind appellant that compliance with the appellate rules is critical to the timely and efficient disposal of appellate cases.