author: WICKERSHAM, Judge:

text:
    442 A.2d 796
    Michael F. BEAUSANG, Jr. v. Joseph T. BERNOTAS and Barbara M. Bernotas, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1981.
    Filed March 12, 1982.

      Joseph T. Bernotas, appellant, in pro. per.
    William J. Brennan, King of Prussia, submitted a brief on behalf of appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   WICKERSHAM, Judge:

This is an appeal from an order dismissing a motion to open a default judgment. Appellee Beausang filed a complaint in trespass and assumpsit on October 17, 1979, alleging appellants, Joseph and Barbara Bernotas, had not paid him money owed under a lease of a vacation home. Appellee further alleged that the Bernotases had damaged his vacation home during their stay there. Appellants filed no answer or appearance. On November 15, 1979, appellee Beausang took a default judgment for $1,136.31. The lower court denied the Bernotases’ motion to open judgment and this appeal followed. We reverse.

In Queen City Electricial Supply Co., Inc. v. Soltis Electric Co., Inc., 491 Pa. 354, 421 A.2d 174 (1980), Justice Kauffman said:

. . . The issue here presented is whether a court should open a snap default judgment entered without notice. . . .
In making the determination whether to open a default judgment, three factors usually are considered: (1) whether the default was excusable; (2) whether the party seeking to open the judgment has shown a meritorious defense, and (3) whether the petition to open has been promptly filed.
The sole remaining issue, then, is whether the petition to open was promptly filed. This is always an equitable determination which must be made in light of what is reasonable under the circumstances. Indeed, it is well established that where equitable circumstances exist, a default judgment may be opened regardless of the time that may have elapsed between the entry of the judgment and filing of the petition to open. See Baranofski v. Malone, 371 Pa. 479, 482, 91 A.2d 908, 909 (1952).
At the outset, we note that snap judgments taken without notice are strongly disfavored by the courts. As this court stated in Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144, [147] (1971):
The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not [a] procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.

Id., 491 Pa. at 356-61, 421 A.2d at 177-78 (citations omitted).

The facts of this case may be summarized as follows. The Bernotases leased a vacation home from appellee Beausang for the period July 5,1979 through July 14,1979 for the sum of $770.00. The Bernotases paid the amount due with a check which was refused for payment by the drawee bank. In their brief in support of their motion to open default judgment, the Bernotases allege that the vacation home was infested with lice. They argue:

Defendants, Joseph T. Bernotas and his wife, Barbara M. Bernotas, rented from the plaintiff, Michael F. Beau-sang, a house in Avalon, N. J. in July 1979. Shortly after taking residence defendants’ family became infested with lice which caused them physical and mental trauma and embarrassment. Defendants, upon ascertaining that the house was the cause of the infestation, immediately moved out of the house and stopped payment of their check that had been rendered to plaintiff’s agent for the rental. The defendants had left the house in exactly the condition they found it; causing no damage, whatsoever.
Thereafter, the plaintiff had a District Court Complaint served upon the defendants claiming rent due and damages in the amount of $1,250.00 plus [$]33.50 costs. Despite a request for a continuance because the husband-defendant had become too sick to attend the hearing (attested to by a physician) and the wife-defendant had to arrange for care of their six small children, a judgment in the amount of $1,283.50 was entered against the defendants without their presence at the hearing and opportunity to present their defense.
Pursuant to J.P.R.C.P. 1002, 1004 and 1005, an appeal with Praecipe to enter Rule to file Complaint and Rule to file was timely filed on October 11, 1979. When defendants did not receive the Complaint within the required time, they assumed it was due to the often times delay of rural mail and also extended the courtesy of waiting in the event plaintiff’s counsel had difficulty in meeting the time requirement but instead of receiving a Complaint defendants, on November 22, 1979, received notice that a default judgment had been entered against them on November 15, 1979. Defendants never received prior notice that a default judgment would be taken against them and certification of such notice was not included with Plaintiff’s Praecipe for Default Judgment. Defendants then prepared a Motion with Rule to show cause why the default judgment should not be vacated, stricken and/or opened, and filed it, pro se, on December 3, 1979.
Defendants learned from plaintiff’s reply that on October 17, 1979, plaintiff had filed a Complaint and had mailed defendants a copy by certified mail. Defendants did not receive the Complaint nor any notice of the certified mail. Exhibit ‘A’, in plaintiff’s affidavit of service, shows an unsigned certified mail receipt and that the Complaint had been returned to plaintiff’s counsel with the mailing envelope marked ‘unclaimed.’ The Complaint was not delivered to the defendants and for some unknown reason defendants did not receive any notice of the certified mailing and, therefore, had no knowledge that it was in the post office to be claimed. Plaintiff’s counsel states in his affidavit of service that the Complaint was filed on October 17, 1979. That affidavit is sworn to on November 8, 1979, the 21st day after filing of the Complaint. All other mailings by plaintiff’s counsel to defendants were by regular mail which defendants never failed to receive and respond. Despite that fact, plaintiff’s counsel made no attempt to serve defendants by regular mail as permitted by J.P.R.C.P. 1005(C) but instead initiated filing of the default judgment on the 21st day after filing of the Complaint.
A Reply to Motion and New Matter was filed by the plaintiff and defendants filed a Reply and Supplemental Reply to the New Matter wherein defendants presented a meritorious defense. The defendants then filed a Brief to which the plaintiff responded with a Memorandum of Law. The Court, per Judge Pitt, denied defendants’ Motion.
Due to serious illness of the husband-defendant which has caused him to lose his business and move to a much smaller home in Philadelphia, closer to required medical treatment, all responsibility of this appeal has fallen on the wife-defendant. Because of this, continuance of this appeal was required for her to prepare this brief.

Appellants’ Brief at 3-5.

The Bernotases assert that the question involved in the instant case is:

Has the court below abused its discretion by denying defendants’ Motion to Vacate, Strike and/or Open a default judgment against defendants without prior notice for not answering a Complaint they had never received?

Appellants’ Brief at 2.

We believe the court below erred in not considering the Bernotases’ explanation for their failure to respond to the complaint and by failing to consider the meritorious defense they presented. Accordingly, the trial court’s dismissal of the petition to open was a manifest abuse of discretion.

A petition to open judgment is a matter of judicial discretion. A trial court’s refusal to open will not be reversed unless there has been a clear, manifest abuse of discretion. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971).

In the instant case, the motion to open judgment was filed promptly. Neither the lower court nor appellee Beausang challenge promptness.

The lower court found that the appellants offered no explanation for their failure to claim the complaint. A reading of the Bernotases’ motion to open judgment, however, reveals that they did aver:

5. As of this date, defendants have not been served a complaint by the plaintiff.

Reproduced Record at 15A.

Appellee Beausang offers two certified mail receipts in support of his claim, however, both were returned unclaimed. There is no evidence that the Bernotases had any notice of the complaint.

In Nardulli v. John Carlo, Inc., 274 Pa.Super. 34, 417 A.2d 1238 (1979), the mistaken belief by a defendant that he was represented by counsel was found to be a sufficiently reasonable explanation to open a default judgment. A mix-up in the mailroom of a defendant corporation that resulted in the complaint being directed to the wrong office was accepted as a satisfactory explanation in Brooks v. Surman Dental Lab., Inc., 262 Pa.Super. 369, 396 A.2d 799 (1979). The Bernotases’ explanation that they did not receive the complaint is at least as satisfactory an explanation.

The lower court found that appellants did not present a meritorious defense. While the Bernotases’ motion to open default judgment does not allege a meritorious defense, appellee Beausang, in his brief to this court, mentions that the Bernotases stated the particular condition of the leased property in their brief to the lower court. A court may consider supplemental memorandae in deciding whether a petitioner in an action to open a default judgment has presented a meritorious defense. Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979); Silverman v. Polis, 230 Pa.Super. 366, 326 A.2d 452 (1974).

The Bernotases’ defense is meritorious in that the infestation of a vacation property by lice would violate the implied warranty of habitability in a residential lease. For any time period during which residential leased premises are found to be in an uninhabitable state, tenants may recover the difference between the amount of rent they paid and the reasonable rental value of the premises. While a landlord is not required to supply a perfect dwelling, the premises he supplies must be safe and sanitary. Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979).

Appellee Beausang failed to give any notice to appellants of his intention to take a default judgment. In Silverman v. Polis, supra, the court wrote:

One very frequent element of the sets of circumstances of cases where a default judgment has been upheld is notice to opposing counsel of the intent to enter a default judgment. Conversely, the lack of such notice is frequently singled out as an important factor justifying the opening of a default judgment.
[Attempts to utilize every niggling procedural point for maximum advantage demeans the legal profession, reducing its procedures to a vulgar scramble. No doubt it is for this reason that in so many cases, notice of intent to take a default judgment, or the lack thereof, is properly made a significant factor in reaching a just decision.

Id., 230 Pa.Super. at 370-71, 326 A.2d at 454-55 (citations and footnote omitted).

Pa.R.C.P. No. 237.1, effective February 1, 1980, requires prior notice of intent to enter a default judgment. The Rule,, although not directly applicable to this case because of its effective date, points out the disfavor with which courts look upon default judgments taken without notice. See Quaker Transit Company, Inc. v. Jack W. Blumenfeld & Co., 277 Pa.Super. 393, 419 A.2d 1202 (1980).

Appellee Beausang took judgment within thirty-five days of filing his complaint. He offered no notice to the Bernotases of his intention to take judgment. These factors further substantiate our decision to reverse.

Order reversed and judgment opened.

POPOVICH, J., concurs in the result.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    442 A.2d 800
    COMMONWEALTH of Pennsylvania v. Frank BARANYAI, Appellant.
    Superior Court of Pennsylvania.
    Argued April 12, 1979.
    Filed March 12, 1982.

      Bruce E. Dice, Pittsburgh, for appellant.
    Kemal Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

This is not the first time this matter has been before the Superior Court. When it was previously here, an opinion was filed and an order entered which set aside appellant’s conviction on a general charge of official oppression but affirmed the judgment of sentence imposed following conviction of a specific assault and act of official oppression by appellant, a policeman, against one Dave Stier. See: Commonwealth v. Baranyai, 278 Pa. Superior Ct. 83, 419 A.2d 1368 (1980). In affirming the latter judgment of sentence, we decided, inter alia, that the closing remarks of the prosecuting attorney had not been preserved for appellate review because they had not been recorded and because defense counsel had failed to interpose any objection to the prosecutor’s closing argument. Only after the jury had left the courtroom and counsel had adjourned to the trial judge’s chambers did counsel complain and move for a mistrial. On allocatur to the Supreme Court, the matter was “remanded to the Superior Court for consideration of the merits of Mr. Baranyai’s objections to the closing remarks of the attorney for the Commonwealth at trial.”

Following closing arguments of counsel, but prior to the court’s jury instructions, counsel retired to the judge’s chambers. There, the following occurred:

“MR. DICE [appellant’s counsel]: A couple of comments that I believe were highly prejudicial. Mr. Cuebas three times indicated that Baranyai was a ‘punk behind a badge.’
“THE COURT: I didn’t like that very much either.
“MR. DICE:
“He called him Buford Puser [sic], Clint Eastwood; that, again, is shocking and prejudicial. ‘To get out of town;’ and comments about New York—I thought those were highly prejudicial.
“. . . He mentioned a lot of other people had complained, and I submit to do that calls for this Jury to then speculate into all these other kinds of cases that may have been before some tribunal, be it Council or whatever, not before the Court, and that’s highly prejudicial.
“. . . You can’t comment on where these other complaints are. It’s just like saying to the defendant, ‘Have you ever been arrested before,’ and that’s what Mr. Cuebas—
“THE COURT: Wasn’t there testimony there had been complaints.
“MR. HERNANDEZ-CUEBAS: Porter said, himself, there had been complaints about Frank.
“THE COURT: So did the Councilman.
“MR. DICE: He referred to me as a tricky defense attorney. That’s highly prejudicial. He made reference to ‘Gestapo tactics,’ ‘still his way of doing business,’ ‘a take charge guy.’ Those kind of comments are prejudicial when you put the total closing together....
“MR. HERNANDEZ-CUEBAS: ... I would point out one thing. Mr. Dice had opportunity to object everytime one of these things came up, as I did, and he did not.
“MR. DICE: He indicated Frank said an arrest is as good as a conviction. Officer Baranyai never said that. . . .
“So, on the basis of the above—called him a paper hanger, also—that’s prejudicial.
“THE COURT: Are they all motions for mistrial?
“MR. DICE: Yes.”

Because the closing arguments of counsel were neither recorded nor transcribed, we are unable to ascertain the context in which these alleged remarks were made. Nevertheless, in order to comply with the Supreme Court’s mandate, we accept as correct the assertions made by defense counsel and not denied or otherwise explained in chambers by the prosecuting attorney.

Frank Baranyai was a police officer in the Borough of Millvale, Allegheny County. He was charged with and tried for various alleged instances of assault and official oppression, i.e., police brutality. During the trial, the Commonwealth attempted to show that appellant had pursued a course of conduct in which he arrested people without cause, frequently abusing them physically during the course thereof. The defense countered by showing that the arrests had been legal and that the force used, if any, had been necessary to effect the arrest. It was against this background that counsel for the Commonwealth charged that the appellant was a “punk behind a badge,” a “Buford Pusser,” a “Clint Eastwood,” a “paper hanger,” who employed “Gestapo tactics.”

The Supreme Court has made clear “. . . that the prosecuting attorney enjoys an office of unusual responsibility, and that his trial conduct should never be vindictive or attempt in any manner to influence the jury by arousing their prejudices.” Commonwealth v. Potter, 445 Pa. 284, 287, 285 A.2d 492, 494 (1971); Commonwealth v. Toney, 439 Pa. 173, 180, 266 A.2d 732, 736 (1970). With respect to closing argument by the lawyer for the Commonwealth, the Supreme Court has adopted the rationale of the ABA Standards Relating to the Prosecution Function. See: Commonwealth v. Starks, 479 Pa. 51, 56, 387 A.2d 829, 831 (1978). See also: Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976); Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975); Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975). These Standards include the following: “(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw, (b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant, (c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury, (d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.” ABA Standards Relating to the Prosecution Function, Section 5.8. See also: Commonwealth v. Starks, supra, 479 Pa. at 56, 387 A.2d at 831-832.

Nevertheless, not every intemperate or improper remark by the prosecutor requires a new trial. Commonwealth v. Jarvis, 482 Pa. 598, 394 A.2d 483 (1978); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). Before a new trial is required, the language must be such that its “unavoidable effect . . . would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Mikesell, 475 Pa. 589, 595, 381 A.2d 430, 433 (1977); Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975); Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968); Commonwealth v. Youngkin, 285 Pa.Superior Ct. 417, 429, 427 A.2d 1356, 1362 (1981). The effect of the prosecuting attorney’s remarks, moreover, must depend to a great extent upon the atmosphere of the trial. Commonwealth v. Jarvis, supra, 482 Pa. at 606, 394 A.2d at 487; Commonwealth v. Stoltzfus, supra, 462 Pa. at 61, 337 A.2d at 882; Commonwealth v. Dickerson, 406 Pa. 102, 110, 176 A.2d 421 (1962). When the cumulative effect of improper remarks so prejudices the jury as to prevent a fair trial, a motion for mistrial must be granted. Commonwealth v. Youngkin, supra, 285 Pa.Super. at 429, 427 A.2d at 1362.

In the instant case, the prosecuting attorney attempted to stigmatize the appellant by characterizing him as a “punk behind a badge,” a “Buford Pusser,” a “Clint Eastwood,” who used “Gestapo tactics.” This was not a proper part of advocacy any more than characterizing a defendant as a “robber” or “rapist,” Commonwealth v. Reynolds, 254 Pa.Superior Ct. 454, 386 A.2d 37 (1978); as a “hoodlum” and “animal,” Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974); or as an “A1 Capone,” Commonwealth v. Valle, 240 Pa.Superior Ct. 411, 362 A.2d 1021 (1976). It was clearly an argument calculated to inflame the passions and prejudices of the jury. Its unfortunate effect was compounded when the prosecuting attorney also took aim at defense counsel and branded him a “tricky defense attorney.” Cf. Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Collins, supra; Commonwealth v. Long, 258 Pa.Superior Ct. 312, 392 A.2d 810 (1978). The cumulative effect of these epithets, in a trial on charges of official oppression, was unavoidably to prejudice the jurors so that they could not weigh the evidence rationally and render a true verdict. Appellant, therefore, was denied a fair trial.

We previously vacated the judgment of sentence and arrested judgment on the charge of general official oppression. We now reverse the judgments of sentence entered following appellant’s convictions for committing specific acts of assault and official oppression against Dave Stier. On those charges, we now remand for a new trial.

It is so ordered.

      . The trial court concluded that appellant had waived his right to object to the allegedly improper remarks by failing to raise objections during the closing argument. Nevertheless, it opined that appellant had not been prejudiced by any of the “alleged comments contained in the prosecutor’s argument.”


author: WIEAND, Judge: McEWEN, Judge,

text:
    442 A.2d 803
    COMMONWEALTH of Pennsylvania v. Jorge RODRIGUEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 28, 1981.
    Filed March 12, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

Jorge Rodriguez was tried in the Municipal Court of Philadelphia and found guilty of indecent exposure and corrupting a minor. A petition for certiorari on the grounds that the Commonwealth’s evidence was insufficient to sustain the convictions was dismissed by the Court of Common Pleas of Philadelphia County, and this appeal followed. We agree that the Commonwealth’s evidence was insufficient and, therefore, reverse.

In determining the sufficiency of the evidence, the test is whether, accepting as true all the evidence of the Commonwealth and all reasonable inferences arising therefrom upon which the trier of fact could properly have reached its verdict, such evidence is sufficient in law to prove beyond a reasonable doubt that appellant was guilty of the crime of which he stands convicted. Commonwealth v. Burton, 450 Pa. 532, 534, 301 A.2d 599, 600 (1973). Although the Commonwealth does not have to establish guilt to a mathematical certainty, guilt must be proven and may not rest on mere suspicion and surmise. Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973); Commonwealth v. Reed, 276 Pa.Superior Ct. 467, 469, 419 A.2d 552, 553-4 (1980).

The crime of indecent exposure is defined in 18 Pa.C.S. § 3127, where it is provided that a person is guilty “if, for the purpose of arousing or gratifying sexual desire of himself or of any person other than his spouse, he exposes his genitals under circumstances in which he knows his conduct is likely to cause affront or alarm.”

The Commonwealth’s only evidence came from a seven-year-old girl who testified that while she was seated in an alley near her home, appellant entered the alley and the following occurred:

“Q. What happened when he came up?
A. And he shaked his bird.
Q. What did he do with his bird?
A. Shaked it.
Q. Did you see his bird?
A. Yes.
Q. What, if anything, did he say or do when he shook his bird?
A. He just put his finger in his mouth.
Q. Put his finger in his mouth? Show the judge how he put his finger.
A. (Indicating)
Mr. Schiffman: Indicating the finger being vertical over the mouth, right under the nose.
Q. In whose direction was he looking when he did that?
A. At the wall.
Q. Where were you when he did that?
A. Over there, sitting from the alley.
Q. When you first saw him, was his bird in or out of his pants. When you first saw him.
A. It was in.
Q. At what point did he take it out?
A. (No response)
Q. When you first saw him, what was he doing?
A. Walking up.
Q. Was he facing you when he took his bird out?
A. No.
Q. Where was he facing?
A. He was facing the wall and he turned his head to me.
Q. When he turned his head to you, what did he do?
A. Just put his finger up.”

Before there can be a conviction for indecent exposure, the Commonwealth must prove beyond a reasonable doubt, either by direct or circumstantial evidence, that the defendant was acting for the purpose of arousing or gratifying sexual desire on the part of himself or another person. In the instant case, this element of the offense was not shown. The Commonwealth failed to prove by even a scintilla of evidence that appellant’s conduct was sexually motivated. There is no evidence that he was masturbating or even that he had an erection. Neither is there other evidence that appellant intended to arouse or gratify sexual desire on the part of himself. Similarly, there is no evidence that he acted to arouse or gratify sexual desire on the part of anyone else. The Commonwealth proved merely that appellant, while facing a wall in an alley, extracted his penis and subsequently shook it. The Commonwealth had the burden of proving that the act was sexually motivated, and it is not for this Court to speculate concerning the purpose of appellant’s conduct. It may be observed, however, that the Commonwealth’s evidence was as consistent with urination as with a sexual act. In the absence of evidence, either direct or circumstantial, from which the factfinder could infer an intent to arouse or gratify sexual desire, we are forced to conclude that the Commonwealth failed to prove that appellant committed the crime of indecent exposure.

For similar reasons, the Commonwealth failed to show that appellant committed the offense of corrupting a minor. This offense is defined at 18 Pa.C.S. § 6301(a) as follows: “Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age ... is guilty of a misdemeanor of the first degree.” This section does not specify a particular culpability. Therefore, 18 Pa.C.S. § 302(c) is applicable and requires the Commonwealth to prove an act intentionally, knowingly or recklessly committed to corrupt or tending to corrupt the morals of a minor.

The Commonwealth did not attempt to prove that the morals of the seven year old child had actually been corrupted. It does contend that appellant’s conduct tended to corrupt the morals of the child. We disagree. Tending to corrupt the morals of a minor has been held on numerous occasions to contemplate conduct toward a child which tends to produce, encourage or continue delinquent conduct of the child. Commonwealth v. Mumma, 489 Pa. 547, 555, 414 A.2d 1026, 1030 (1980); Commonwealth v. Zellner, 268 Pa. Superior Ct. 59, 66, 407 A.2d 436, 439 (1979); Commonwealth v. Meszaros, 194 Pa. Superior Ct. 462, 465, 168 A.2d 781, 782 (1961). It cannot be said that the conduct of appellant, as described by the Commonwealth’s witness, was of a type which tended to produce, encourage or continue delinquent conduct on the part of the minor who observed it.

This is a case in which the Commonwealth failed to prove commission of the crimes charged. Therefore, the convictions are reversed and set aside, and appellant is discharged.

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

McEWEN, Judge,

concurring and dissenting:

The appellant was convicted of indecent exposure and corrupting the morals of a minor. I concur with the majority that the Commonwealth did not prove the charge of corrupting the morals of a minor. I would, however, affirm the conviction of the appellant upon the charge of indecent exposure and, therefore, dissent from that portion of the majority opinion.

A person may be convicted of indecent exposure “if, for the purpose of arousing or gratifying sexual desire of himself or any other person other than his spouse, he exposes his genitals under circumstances in which he knows his conduct is likely to cause affront or alarm.” 18 Pa.C.S.A. § 3127.

The majority concludes that the Commonwealth’s evidence was insufficient to prove that he acted for the purpose of arousing or gratifying sexual desire because there was no evidence that appellant was masturbating or had an erection and because all we know is that appellant faced a wall, extracted his penis and shook it which is as consistent with urination as it is with a sexual act. I respectfully disagree.

It must be remembered that in testing the legal sufficiency of the evidence to support the verdict, the reviewing court is not permitted to substantiate [sic] its judgment for that of the factfinder. The reviewing court is restricted to assessing the evidence in the light most favorable to the verdict winner, here the Commonwealth, and drawing all proper inference that the evidence suggests in that party’s favor.

Commonwealth v. Smith, 490 Pa. 374, 378, 416 A.2d 517, 519 (1980). Moreover, “[p]roof of a defendant’s state of mind ‘may be found in the defendant’s words or conduct or from the attendant circumstances together with all reasonable inferences therefrom.’ ” Commonwealth v. Stoffan, 228 Pa. Super.Ct. 127, 149, 323 A.2d 318, 328 (1974) (quoting Commonwealth v. Freeman, 225 Pa.Super.Ct. 396, 399, 313 A.2d 770, 772 (1973) (citations omitted). Additionally, the finder of fact may find that the actor intended the natural and probable consequences of his actions. Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976); Commonwealth v. Back, 255 Pa.Super.Ct. 603, 389 A.2d 141 (1978). In view of the above tests, we believe that the Commonwealth’s evidence in the instant case was clearly sufficient to enable the trier of the fact to convict appellant of indecent exposure.

The testimony quoted in the majority opinion reveals we know much more than the fact that appellant faced a wall, extracted his penis and shook it. In determining the sufficiency of the evidence, we must consider all of the evidence and all of the reasonable inferences in the light most favorable to the Commonwealth. Commonwealth v. Martin, 481 Pa. 515, 393 A.2d 23 (1978) (emphasis added). Significantly, the evidence also indicates that appellant was aware that a young girl was present in the alley only several feet from him and that he chose to expose his genitals in a manner that permitted her to view them.

I differ with the conclusion of the majority that there was insufficient evidence because the appellant’s conduct was as consistent with urination as it was with a sexual act. The trial judge, who was the trier of the facts, concluded there was sufficient evidence of the sexual nature of the pertinent behavior. It is not the function of an appellate court, in an appeal alleging insufficiency of evidence, to weigh the evidence and substitute its judgment. Commonwealth v. Zimmerman, 264 Pa.Super.Ct. 307, 399 A.2d 1064 (1979). Moreover, circumstantial evidence may be sufficient if the circumstances are consistent with criminal activity even though they might also be consistent with innocent behavior. Commonwealth v. Adams, 273 Pa.Super.Ct. 484, 417 A.2d 751 (1979).

      . The record clarifies and explains this gesture as one suggesting silence or requesting the child to say nothing.

      . Open lewdness, a lesser offense, is defined by 18 Pa.C.S.A. § 5901 as “any lewd act” which the actor “knows is likely to be observed by others who would be affronted or alarmed.” The issue has not been raised in this case; and, therefore, we express no opinion whether appellant’s conduct amounted to such a gross flouting of community standards in a public place as to constitute the offense of open lewdness.


author: JOHNSON, Judge:

text:
    442 A.2d 807
    James L. MARTIN, Appellant, v. ABRAM D. MELLINGER REAL ESTATE, INC.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1981.
    Filed March 12, 1982.

      James L. Martin, Quarryville, appellant, in pro. per.
    James H. Thomas, Lancaster, submitted a brief on behalf of appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from an order that sustained Appellee’s preliminary objections and dismissed Appellant’s complaint for failure to join a necessary and indispensable party. For the following reasons, we reverse and remand.

Appellant filed a pro se complaint against Appellee, Abram D. Mellinger Real Estate, Inc. Appellee filed preliminary objections, stating that Appellant had failed to join a necessary and indispensable party. The lower court sustained Appellee’s preliminary objections and dismissed Appellant’s complaint.

The sole issue on this appeal is whether the lower court correctly found, on the pleadings before it, that Abram Mellinger—an individual who had not been named as a defendant—was, in fact and law, an indispensable party to the suit whose nonjoinder required dismissal of the complaint.

Appellant had attached a copy of his lease to his complaint. In sustaining Appellee’s preliminary objections, the trial court stated that it was apparent from the copy of Appellant’s lease that Appellant’s landlord was Abram D. Mellinger, rather than Abram D. Mellinger Real Estate, Inc., the defendant.

As we examine the preprinted lease in question, we note that “Abram D. Mellinger, 902 Columbia Ave., Lancaster, Pa. 17603” was typed on the blank lines preceding the preprinted phrase, “(hereinafter called Landlord).” We note, however, that Abram D. Mellinger signed the lease above the designation, “Agent for Owner.” The ambiguity of Mellinger’s role in the landlord/tenant relationship is further complicated by the fact that the above-cited address, which appears beside Mellinger’s name, is that of Abram D. Mellinger Real Estate, Inc.' Since Mellinger signed the lease as the agent for the owner, and since the address of the real estate company appears beside Mellinger’s name with the designation of “landlord,” it is not clear from the lease that Mellinger, rather than the real estate company, was the landlord.

An examination of Appellant’s complaint reveals that the relationships of Mellinger and the real estate company to Appellant as tenant were quite ambiguous. In paragraph 8 of the complaint, Appellant avers that his notice of intent to vacate the premises was given to “Defendant” (i.e. the real estate company). Paragraphs 9 and 11 refer to Abram D. Mellinger as “agent for Defendant.” Paragraphs 9 and 10 indicate that Appellant’s attempts to communicate with Mellinger were made via the secretary at the real estate company.

Thus the complaint in question reveals Appellant’s presumption that Mellinger was the agent for the real estate company, which seemingly owned the building in which Appellant was a tenant. Since Mellinger signed the lease as agent for the owner, Appellant’s presumption was well-founded.

The issue of whether or not Mellinger is an indispensable party is resolved by our answer to the following question: are Mellinger’s rights so connected with the claims of the litigants that an order or decree cannot be made without impairing Mellinger’s rights? See Columbia Gas Transmission Corp. v. Diamond Fuel Co., 464 Pa. 377, 379, 346 A.2d 788, 789 (1975). If Mellinger is merely the agent for the owner, Mellinger’s rights are not so closely connected that he would be an indispensable party. Even if Mellinger is the owner, a verdict against the real estate company does not impair Mellinger’s rights. Thus, we cannot accept the lower court’s determination that Mellinger is a necessary and indispensable party.

We need not examine the other deficiencies in the complaint, which the lower court discusses in its opinion, since these issues are not properly before us. We sympathize with the lower court’s difficulty in reviewing the complaint since it was drawn by Appellant without benefit of counsel. On remand, Appellant may wish to consider the advisability of retaining counsel to assure that his rights are protected.

For the foregoing reasons, we reverse the order sustaining the preliminary objections and remand the case for further proceedings not in conflict with this opinion.


author:
      WATKINS, Judge:
      HOFFMAN, Judge,

text:
    442 A.2d 808
    COMMONWEALTH of Pennsylvania v. Robert PERRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1979.
    Filed March 12, 1982.
    Petition for Allowance of Appeal Denied June 16, 1982.

      John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, P. J., and WATKINS and HOFFMAN, JJ.
   WATKINS, Judge:

This ease comes to us on appeal from the Court of Common Pleas of Philadelphia County, and involves defendant’s claim that the charges against him should have been dismissed because the Commonwealth failed to demonstrate “due diligence” in bringing the defendant to trial at the hearing held on the Commonwealth’s petition to extend the time for trial.

The defendant was arrested and charged with burglary and possessing instruments of crime on July 26, 1977. He was convicted of said crimes on February 10, 1977 after a non-jury trial. He then took this appeal.

The mechanical run date of 180 days pursuant to Rule 1100 of the Pa.Rules of Criminal Procedure was January 22, 1978. Because that date fell on a Sunday the time for trial was extended to Monday, January 23, 1978. Rule 1100 Pa.Rules Crim.Pro. On October 26, 1977 the case was listed for trial. The defendant failed to appear on time for the trial and the case was passed. On January 23, 1978 the Commonwealth filed a timely Petition for an Extension of Time in which to bring the defendant to trial. The defendant answered said petition and filed a motion to dismiss the charges. A hearing was held thereon on February 3, 1978, after which the court granted an extension of time to the Commonwealth. Trial commenced on February 10, 1978 which was the 199th day after defendant’s arrest.

The court below found that the Commonwealth had exercised due diligence in attempting to bring the defendant to trial. The Commonwealth was ready to proceed to trial on October 26, 1977, November 17, 1977 and December 14, 1977 but the case was not reached on any of those dates. The court also found that the defendant’s tardiness in appearing for trial on October 26,1977 resulted in a 22 day delay which is attributable to the defendant. Deducting the 22 day delay caused by the defendant from the 199 days brings the Commonwealth within the 180 day limit. Thus, even if the Commonwealth failed to prove “due diligence” at the Rule 1100 hearing the defendant was tried within the appropriate time period if the 22 days was properly deducted from the “run time”.

The defendant was late on October 26, 1977 because he had been detained at a district hearing. However, the case was then re-listed for trial on November 17,1977. Thus, the defendant’s “unavailability” on October 26, 1977 resulted in the delay. The unavailability of the defendant excludes the delay occasioned thereby from the running of the rule. Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977). Section 1100(d)(1) of the rule requires the exclusion of the period of delay resulting from the unavailability of the defendant or his counsel. Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979). The court below found that the defendant’s unavailability on October 26, 1977 resulted in a 22 day delay. Unlike the situation in Morgan, the unavailability of the defendant in our case did result in delaying the schedule of the proceedings. The defendant would have us hold that defendant’s unavailability on October 26, 1977 resulted in only a one day delay, at most, which is attributable to the defendant. The defendant argues that Rule 1100(d)(1) provides that the only delay which can be attributed to the defendant is the actual period of time that he was unavailable. We do not agree. The Rule specifically excludes from the “run time” “such period of delay at any stage of the proceedings as results from : (1) the unavailability of the defendant or his attorney.” (Emphasis ours) It is obvious that in many cases the defendant, by his unavailability, can occasion a delay which is much greater than the actual time of his unavailability. The Rule charges this delay to the defendant.

Since the court below correctly attributed the 22 day delay to the defendant and because the case was tried on the 199th day, we hold that the court below did not err in dismissing the defendant’s petition to dismiss the charges.

Judgment of sentence affirmed.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting:

Appellant contends that the lower court erred in granting the Commonwealth’s petition for extension of time pursuant to Pa.R.Crim.P. 1100(c). I agree and, accordingly, would reverse the judgment of sentence and order appellant discharged.

On July 26, 1977, the Commonwealth filed a criminal complaint against appellant, charging him with burglary and possessing instruments of crime. Thus, pursuant to Pa.R.Crim.P. 1100(a)(2), appellant’s trial should have commenced by January 23,1978. At a scheduled trial listing on October 26, 1977, appellant failed to appear, and a bench warrant was issued. The warrant was withdrawn when appellant appeared later that day. Appellant’s trial was then relisted for November 7, 1977. The case was not reached on that date and was continued until December 14, 1977. On that date, the case again was not reached, and subsequently, on January 23, 1978, the Commonwealth filed a petition for extension of time pursuant to Pa.R.Crim.P. 1100(c). In its petition, the Commonwealth alleged that it had been prepared to proceed on the three previously scheduled trial dates. Additionally, the Commonwealth alleged that “[djespite due diligence, the Commonwealth will be unable to try the [appellant] before the original run date.” Subsequently, appellant filed both an answer to the Commonwealth’s petition, in which he denied the material averments, and a petition for dismissal of the charges pursuant to Pa.R.Crim.P. 1100(f). At the extension hearing on February 3, 1978, the Commonwealth presented no evidence in support of its petition. The hearing judge merely noted the continuances of October 26, November 17, and December 14 and concluded, “That would support a finding of due diligence on the part of the Commonwealth, the Petition having been timely filed.” The hearing judge granted an extension until February 13, 1978. Appellant’s nonjury trial commenced on February 10, 1978, and he was convicted on the above-stated charges. Following denial of post-verdict motions and imposition of sentence, appellant took this appeal.

Rule 1100(a)(2) requires the Commonwealth to commence trial within 180 days of the filing of the complaint unless any period of delay beyond 180 days is excludable pursuant to Rule 1100(d) or the run date is properly extended by court order pursuant to Rule 1100(c). The Commonwealth argues, and the majority agrees, that even if the extension in this case were improperly granted, appellant was tried within the Rule 1100 period because it is entitled to exclude twenty-two days. Rule 1100(d)(1) states in part: “In determining the period for commencement of trial, there shall be excludable therefrom such period of delay at any stage of the proceedings as results from: ... the unavailability of the defendant . ...” The Commonwealth argues that although appellant was unavailable for part of the day on October 26, 1977, his failure to appear at the scheduled trial listing on that date caused his trial to be delayed until November 17. Thus, the Commonwealth asserts, that twenty-two day period should be excluded under Rule 1100(d)(1) because that delay “resulted] from” appellant’s unavailability-

In Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979), our Supreme Court rejected the contention which the Commonwealth raises here. In that case, the defendant did not appear on the scheduled trial date, and the trial was rescheduled to a date forty-nine days later. The Commonwealth sought to exclude under Rule 1100(d)(1) the entire forty-nine day period on the ground that defendant’s unavailability on the scheduled trial date prevented the commencement of trial within the Rule 1100 period. In rejecting the Commonwealth’s argument, the Supreme Court noted that the court calendar, not defendant’s unavailability, had prevented the Commonwealth from scheduling defendant’s trial within the Rule 1100 period. Because the Court had previously held that scheduling difficulties do not provide a basis for an exclusion under Rule 1100(d)(1), Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), the Commonwealth was not entitled to exclude the forty-nine day period. As an alternative ground for its decision, the Court held that “a finding of unavailability causing delay requires the Commonwealth to exercise due diligence in the avoidance of that delay,” 484 Pa. at 127, 398 A.2d at 976, which the Commonwealth had failed to do. See also Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1331 (1978) (“[A] defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself.”).

I conclude that the twenty-two day period from October 26, 1977 to November 17, 1977 is not excludable under Rule 1100(d)(1). If scheduling difficulties prevented appellant’s trial from being listed before November 17, that delay is not excludable under Rule 1100(d)(1). In any event, I note that the record contains no explanation for the delay in rescheduling appellant’s trial. It therefore cannot be said that the Commonwealth “exercise[d] due diligence in the avoidance of that delay.” Commonwealth v. Morgan, supra, 484 Pa. at 127, 398 A.2d at 976. Accordingly, because only one day is excludable under Rule 1100(d)(1), appellant must be discharged unless the lower court properly granted the Commonwealth’s extension petition.

Rule 1100(c) states that a trial court may extend the time for commencement of trial “only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.” Additionally, our Supreme Court has mandated that an extension may be granted “only upon a record showing: . . . certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.” Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349 (1976). “The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c).” Commonwealth v. Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979). “[I]n reviewing a hearing court’s ruling that the Commonwealth has met its burden, we. consider only the evidence presented by the Commonwealth and so much evidence as, fairly read in the context of the record as a whole, remains uncontradicted.” Id.

I conclude that the Commonwealth failed to establish that it exercised due diligencé in attempting to bring appellant to trial within the Rule 1100 period. As stated above, the Commonwealth in its extension petition merely cited the three occasions on which the case had not been tried and alleged that it had exercised due diligence. At the “hearing” on the petition, the Commonwealth presented no evidence, and the hearing judge apparently based his finding of due diligence solely upon his review of the docket entry notes. This record falls far short of satisfying the Commonwealth’s burden of proving its due diligence by a preponderance of the evidence. The record certainly does not “show the causes of the court delay and the reasons why the delay cannot be avoided.” Commonwealth v. Mayfield, supra, 469 Pa. at 222, 364 A.2d at 1349. See Commonwealth v. Levitt, 287 Pa.Superior Ct. 115, 429 A.2d 1126 (1981) (Commonwealth not entitled to extension where it failed to show that the judicial delay was unavoidable and that the case could not have been scheduled for trial ahead of other cases which did not have similar Rule 1100 problems); Commonwealth v. Mines, 282 Pa.Superior Ct. 157, 422 A.2d 876 (1980) (Commonwealth not entitled to extension where it merely alleged in its extension petition that it was twice ready to proceed to trial, and docket entries showed that case was twice continued at defendant’s request); Commonwealth v. Berry, 271 Pa.Superior Ct. 466, 414 A.2d 130 (1979) (Commonwealth not entitled to extension where only proof of due diligence was hearing judge’s statement that case could not be reached because no jury trial rooms were available). Moreover, even assuming, arguendo, that the Commonwealth had proven that, despite its due diligence, it was unable to try appellant on or before December 14,1977, the date of the last continuance, the Commonwealth did not allege, much less prove, that it had exercised due diligence in attempting to commence trial between December 14 and the end of the Rule 1100 period. Because Rule 1100(c) expressly states that an extension may be granted “only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth” (emphasis added), the hearing judge erred in granting the Commonwealth an extension. See Commonwealth v. Gilberthorp, 283 Pa.Superior Ct. 403, 424 A.2d 527 (1981) (Commonwealth not entitled to extension where it gave no reason for failing to bring defendant to trial during the five month period between preliminary hearing and run date); Commonwealth v. Coleman, 280 Pa.Superior Ct. 162, 421 A.2d 455 (1980) (Commonwealth not entitled to extension where it could have listed case for trial during last six days of Rule 1100 period); Commonwealth v. Weber, 256 Pa.Superior Ct. 483, 390 A.2d 206 (1978) (Commonwealth not entitled to extension where it did not show, inter alia, why the case was not listed for trial during final two weeks of Rule 1100 period). Accordingly, I would reverse the judgment of sentence and order appellant discharged.

      . Pa.Rules Crim.Pro. 1100(d)(1).

      . In computing the Rule 1100 period, January 22, 1978, the 180th day, is omitted because it was a Sunday. Commonwealth v. Jones, 473 Pa. 211, 214, 373 A.2d 1338, 1339 (1977); Commonwealth v. Thomas, 266 Pa.Superior Ct. 381, 383, 404 A.2d 1340, 1342 (1979); 1 Pa.C.S. § 1908.

      . The Commonwealth has the burden of proving by a preponderance of the evidence that it is entitled to an exclusion under Rule 1100(d). Commonwealth v. Mitchell, 472 Pa. 553, 564, 372 A.2d 826, 831 (1977); Commonwealth v. Williams, 284 Pa.Superior Ct. 125, 129, 425 A.2d 451, 454 (1981); Commonwealth v. Clark, 256 Pa.Superior Ct. 456, 463, 390 A.2d 192, 195 (1978).

      . Accord, Commonwealth v. Manley, 282 Pa.Superior Ct. 376, 422 A.2d 1340 (1980); Commonwealth v. Goodman, 260 Pa.Superior Ct. 266, 393 A.2d 1256 (1978). But see Commonwealth v. Chapman, 271 Pa.Superior Ct. 473, 414 A.2d 352 (1979).

      . The Court stated that “[t]he due diligence involved in this case refers to [the Commonwealth’s] obligation to make an effort to reschedule the trial as quickly as the circumstances permit.” Id., 484 Pa. at 127 n.5, 398 A.2d at 976 n.5.


author: WATKINS, Judge:

text:
    442 A.2d 813
    COMMONWEALTH of Pennsylvania, v. Victor BRACERO, Appellant. COMMONWEALTH of Pennsylvania, v. Maximo BRACERO, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1980.
    Filed March 12, 1982.
    Petition for Allowance of Appeal Denied June 18, 1982.

      Joel M. Breitstein, Lebanon, for appellant (at No. 973).
    Keith L. Kilgore, Lebanon, for appellant (at No. 1020).
    William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   WATKINS, Judge:

These cases come to us on appeals from the Court of Common Pleas of Lebanon County and involve the defendants’ appeals from judgments of sentence entered after they were convicted by a jury of aggravated assault, criminal attempt to. commit murder and conspiracy. The defendants were each sentenced to terms of imprisonment from two and one-half years less one day to five years less one day. They were also fined $100, assessed costs of $22.50 and ordered to make restitution to the victim in the amount of $5948.70 apiece.

Defendants argue that the evidence was insufficient to support the jury’s verdicts against them. We disagree. About three weeks prior to November 12, 1977 a young woman, Kathy Demmy, told the victim, Richard Meade, that Victor Bracero had hit her. Meade confronted Victor Bracero over the alleged incident, a fight ensued, and Victor Bracero and some friends of his administered a severe beating to. Meade. Victor Bracero was criminally charged by the police over this incident which occurred at Pusnik’s Bar in Lebanon, Pennsylvania.

On November 12, 1977, at Pushnik’s Bar, Meade and a friend, Marcell Green, were present at midnight when Maxi-mo Bracero challenged Green to go outside with him. Green began to walk towards the door, accepting the challenge. Maximo Bracero walked backwards toward the door waving Green on. Meade and Hayes followed Green outside and Meade warned Green about going with Maximo Bracero. Once outside of Pushnik’s, Green saw Victor Bracero and attempted to run back inside. At that point Meade observed Victor Bracero running towards him with a shotgun. Meade turned and ran but before he could flee Victor Bracero shot him in the shoulder with a 12 gauge shotgun.

At trial, Meade, Green and a friend of theirs, Robert Hayes testified as to the above. Another witness, a college student named Joseph Oxley, testified that as he and his girlfriend were entering the bar they had observed a man of Spanish descent with an Afro haircut carrying a gun and saying “I’m going to blow your fuckin’ head off”. Oxley was told to duck and “get out of here”. After the incident he observed two Spanish men run from the area towards the road.

Expert witnesses identified the shell fragments in Meade’s back as those from a 12 gauge shotgun. Defendants were brothers of Spanish descent. Meade, Green and Hayes were black and not of Spanish origin.

Defendants claim that because there was “bad blood” between the witnesses and them and because defendants presented their brother, Alfredo, as an alibi witness who testified that Victor Bracero was at home asleep at the time that the evidence is insufficient to support the verdict or, in the alternative, is against the weight of the evidence. This was a jury question. Taken in the light most favorable to the verdict winner the above facts are sufficient to sustain the verdicts. Commonwealth v. Brown, 467 Pa. 388, 357 A.2d 147 (1976).

Defendants also contend that the court erred in admitting the evidence of Victor Bracero’s prior criminal arrests as a result of the earlier incident. We do not agree. This evidence tended to establish motive and was admissible for that purpose. Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976); Commonwealth v. Schwartz, 445 Pa. 515, 285 A.2d 154 (1971); Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973).

Defendants also complain because the court below turned over a list of Commonwealth witnesses to defense counsel but ordered defense counsel not to turn the names over to defendants. However, at the preliminary hearing the defendants were informed of the names of Meade, Green and Hayes. The Commonwealth offered to prove that in the past defendants had threatened Commonwealth witnesses which hindered their prosecution. The court properly exercised its discretion pursuant to Pa.R.Crim.Pro. 305(B) in ordering the Commonwealth to turn over the names to defendants’ counsels but in also ordering the counsel not to provide defendants with the names.

Next, defendants argue that Rule 231 of the Pa.Rules of Crim.Pro. was violated by the Commonwealth because defendants fled after their arrest but prior to their preliminary hearings and the Commonwealth then filed informations against them prior to the preliminary hearings. They filed motions to quash the informations. Pa.Rules Crim.Pro. 231 grants the court the discretion to permit the Commonwealth to file criminal informations against the defendants who “cannot be found in the Commonwealth” prior to their preliminary hearings. In this case the defendants had fled from Pennsylvania prior to their preliminary hearings. The Commonwealth then filed the informations without first making the proper certificates. However, defendants were eventually taken into custody and both were given preliminary hearings. The court then permitted the Commonwealth to file new criminal informations “nunc pro tunc” and denied defendants’ motions to quash. Because defendants were not prejudiced in any way by this procedure and because they had fled after their arrests we hold that the court below did not abuse its discretion in dismissing their motions to quash.

Defendants claims that the court erred in refusing to sequester the jury prior to voir dire. Defendants’ counsel wanted the jurors sequestered so that he could ask whether any had prejudices against people of Spanish descent. The court refused seeing no good reason to grant the request as very few people will admit any such prejudice and because this practice substantially delays the functioning of the judicial process. This is a matter of discretion with the trial court. It did not abuse its discretion in this instance. The voir dire was conducted fairly.

Defendant Maximo Bracero claims that he is entitled to a new trial because the name of a Commonwealth witness, Patrick Kelliher, was not turned over to him prior to trial. The court had ordered that names of “eyewitnesses” to the event be turned over to defendants’ counsel. Kelliher was not an “eyewitness” to the shooting but merely testified that he had seen both defendants together on the evening in question. Kelliher was made available to counsel of defendant prior to his testimony, his testimony was therefore known by counsel prior to his giving it, counsel failed to move for a continuance at the time it learned of his identity, and defendants were not prejudiced by this anyhow as his total contribution to the case was slight. No reversible error occurred here as in their discovery motion defendants asked the names of “eyewitnesses” to the shooting incident and the names were provided to their attorneys.

The defendant, Victor Bracero, claims error in that the court below failed to suppress the testimony of Joseph Oxley. Oxley’s name had been provided to defendant’s counsel as an “eyewitness”. Defendant, Victor Bracero, claims that Oxley was subject to a prejudicial “photographic” identification by the police. However, Oxley did not identify Victor Bracero at trial as the man who shot Meade on November 12, 1977 (or the early hours of November 13, 1977). He merely testified that he had seen a man of “Spanish descent” prior to the incident who was brandishing a gun and who told Oxley to get out. His description of the person he saw fit Victor Bracero but he didn’t identify him as the person. His testimony, although relevant, was not ■influenced by any “photographic display” whether proper or not. The court below correctly admitted his testimony for its limited purpose.

Defendants claim that a mistrial should have been granted because the Commonwealth violated a court directive ordering a sequestration of the remaining Commonwealth witnesses. The Commonwealth’s first three witnesses were a doctor, a nurse, and a ballistics expert. The case was then adjourned until the following day. Defendants’ counsel requested the Commonwealth to make the remainder of its witnesses available to them. While defense counsel were interviewing some of the witnesses, the Assistant District Attorney discussed the case with the remainder of the witnesses. The testimony of the first three witnesses was not discussed and they were not present. This fact was brought to the court’s attention the next morning. It found no material violation of its sequestration order. The court found no violation of the purpose of sequestration, namely; to prevent witnesses from shaping their testimony to fit same plan “not riveted to the standards of truth”. No attempt to conform the witnesses’ testimony to that already given was made here. Sequestration is a matter of discretion with the trial judge. Commonwealth v. Powell, 429 Pa. 1, 239 A.2d 368 (1968). The selection of a remedy for the violation of a sequestration order is also within the sound discretion of the trial judge. Commonwealth v. Martin, 440 Pa. 150, 269 A.2d 722 (1970). In exercising its discretion the trial court must take into account the seriousness of the transgression, its impact upon the witnesses, and its probable impact on the outcome of the trial. Commonwealth v. Smith, 464 Pa. 314, 346 A.2d 757 (1975). Under the above circumstances the violation of the order, if a violation occurred at all, had little or no impact on the witnesses nor on the trial and was not serious. The court below acted properly and did not abuse its discretion in refusing defendants’ requests for a mistrial on these grounds.

Finally, the defendants argue that the court erred in its charge to the jury by misquoting testimony, by failing to talk about the cross-examination testimony of Patrick Kelli-her, by failing to point out conflicts in Marcel Green’s testimony; by failing to point out defendants’ denial of conspiracy, and by giving undue weight to the prosecution. A review of the charge reveals that the trial court spent extensive time recounting the defendants’ versions of the entire situation. It also informed the jury that all of the testimony was important and that it was up to the jury to decide the facts of the case and that it (the court) may not remember everything and just because it had not referred to testimony didn’t mean that it wasn’t important. Viewed as a whole, as we must, the court’s charge to the jury was fair and proper.

Judgment of sentences affirmed.


text:
    442 A.2d 817
    COMMONWEALTH of Pennsylvania, v. James SANDERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1980.
    Filed March 12, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This appeal by the defendant-appellant, James Sanders, is from the judgment of sentence of the Court of Common Pleas of Philadelphia County, after conviction by a jury of recklessly endangering another person, simple and aggravated assault and possession of an instrument of crime. Post-trial motions were denied and he was sentenced to a term of five to ten (5 to 10) years imprisonment on the assault convictions; and two and one-half to five (2V2 to 5) years imprisonment on the possessions charge. Sentence was suspended on the recklessly endangering charge.

The evidence produced at trial revealed that on February 22, 1978, the defendant entered a pharmacy in Philadelphia and purchased some cigarettes from Rhonda Morris, a cashier at the pharmacy counter, by handing her a dollar. Morris and the defendant knew each other having spoken with each other in the neighborhood on many occasions and having conversed by phone at least a dozen times. After giving the defendant his cigarettes and his change Morris turned away from him. The defendant then demanded more change and all the money from the cash register. Morris thought that the defendant was joking. As she turned around he shot her in the chest, fired several shots toward the back of the pharmacy, and then fled.

At the Germantown Hospital, where Ms. Morris was taken after the shooting, she told police that she knew the perpetrator of the crime and that his nickname was “T-Bird”. On November 13, 1978, Officer Louis Kober of the Philadelphia Police Department, who knew the defendant as “T-Bird”, found the defendant and arrested him in a bar.

At trial, Ms. Morris, the pharmacist at the store, and a customer all identified the defendant as the perpetrator of the crime. The area where the incident took place was well-lit and each witness had an unobstructed view of the defendant. The customer also knew the defendant as “T-Bird”.

The defendant raises one issue on appeal. He claims that Officer Kober’s testimony, to the effect that he knew the defendant as “T-Bird”, knew him personally, and knew of places, such as bars, which the defendant frequented; created an impermissible inference in the minds of the jurors that the defendant had been involved in prior criminal activity. The defendant claims that he is entitled to a new trial because of the alleged impermissible inference. We do not agree. Officer Kober merely stated that he knew the defendant and knew that he frequented a bar known as the “Wagon Wheel”, one known as “Uncle Bill’s Bar”, and another bar located in the 6600 block of Germantown Avenue. This did not raise an inference that the defendant had been involved in prior criminal activity.

Of course, evidence of prior criminal activity, except in certain well-defined situations, cannot be admitted as evidence in order to convict an accused. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). Nor can indirect testimony from which a jury could reasonably infer that a defendant had been involved in prior criminal activity be admitted into evidence in order to convict an accused and if such is done the accused is entitled to a new trial. Commonwealth v. Turner, 454 Pa. 439, 311 A.2d 899 (1973). In the instant case we hold that the jury could not reasonably infer that the defendant had engaged in prior criminal activity from the testimony of Officer Kober. Unlike the situations cited by the defendant there was no reference to “mug shots”, “police files”, or “police photographs” in the instant case. Furthermore, nothing in the Officer’s testimony suggested that the way he knew the defendant was as a result of a prior arrest or conviction. Merely because a police officer knows someone or knows where they may be found does not suggest that the person has been engaged in prior criminal activity. A policeman may know someone because they reside in the same neighborhood or for any other number of reasons. We refuse to hold that a policeman’s statement to the effect that he knew someone, knew his nickname, or was familiar with the person’s whereabouts raises an inference of prior criminal activity. Any such holding would defy all logic and good sense. Not everything a policeman says about a person constitutes an inference of prior criminal activity on the part of that person. See Commonwealth v. Griffin, 236 Pa.Superior Ct. 344, 344 A.2d 517 (1975).

Judgment of sentence affirmed.


text:
    442 A.2d 819
    COMMONWEALTH of Pennsylvania v. John E. WRAY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1980.
    Filed March 12, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Eliot Present, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal—Trial Division, of Philadelphia County, by the defendant-appellant, John E. Wray, after his conviction of simple assault and aggravated assault. The defendant was sentenced to three to ten (3 to 10) years imprisonment.

On November 11, 1978, the defendant entered a lounge in Philadelphia and struck the victim over the head with a three foot long pole causing compound depressed fractures of the skull. The defendant was arrested for the offense on November 13, 1978. After being arrested he was provided all of the Miranda warnings. The defendant expressed a desire to remain silent. Later, while being asked routine biographical data necessary to the processing of the arrest (name, address, etc.) the defendant suddenly and spontaneously said:

“This isn’t something someone just does. He called my wife up and said he was going to rape her.”

The arresting officer then reminded the defendant of his statement to the effect that he wished to remain silent and warned the defendant that the officer planned to use the statement against him at trial. The defendant then replied, “I know, but nobody likes rapists man”. The officer then questioned the defendant further about the incident, however, the defendant’s further admissions were suppressed by the court. The court below refused to suppress the statements set forth above. The defendant now alleges that he should be given a new trial claiming that the admissions into the trial testimony of the remarks set forth above violated his Fifth Amendment right to remain silent. We do not agree.

The statements made by the defendant during the processing of his arrest were not made in response to any questions posed to the defendant by the police. The biographical data sought of the defendant by the police was merely that data normally attendant to arrest and custody and the biographical questions were not designed nor likely to elicit any admissions from the defendant. Thus, defendant’s statements amounted to spontaneous, unsolicited utterances. The court below properly and correctly refused to suppress them. We hold that: (1) questions posed to subjects seeking non-incriminating, biographical data do not amount to “police interrogation”; and (2) unsolicited, spontaneous utterances made by a suspect in custody are admissible against him at trial whether or not he has expressed a desire to remain silent. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Commonwealth v. Whitman, 252 Pa. Superior Ct. 66, 380 A.2d 1284 (1977).

Judgment of sentence affirmed.


author: WATKINS, Judge: POPOVICH, Judge,

text:
    442 A.2d 820
    COMMONWEALTH of Pennsylvania v. Terrence GALLAGHER, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1981.
    Filed March 12, 1982.
    Petition for Allowance of Appeal Denied June 30, 1982.

      Gwanita Hester, Assistant Public Defender, Norristown, for appellant.

      Ronald T. Williamson, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   WATKINS, Judge:

This is a direct appeal from the judgment of sentence after revocation of appellant’s probation. Appellant, Terrence Gallagher, filed a timely petition for reconsideration of his sentence which was denied. We affirm the decision of the court below.

Two issues are raised by appellant out of the following set of facts. On February 26, 1980, after a Gagnon II hearing, appellant’s probation of seven years was revoked. During the sentencing colloquy, the following exchange occurred between the appellant and the sentencing court:

[Appellant] “MR. GALLAGHER: You know, you are just making a mockery out of justice.
THE COURT: I am?
MR. GALLAGHER: Yeah.
THE COURT: Well, just a minute. Come back here. I will add a little more time on to it.
I gave you three years and I will revoke that sentence. I will make it three and a half years to seven years.
[Appellant’s Attorney] MR. O'DRISCOLL : Your Honor, if I might say that I think my client is in a distraught state. I would ask the Court to reconsider not adding anything additional to his sentence.
I think he is all raught (sic) up and I don’t think that upon reflection he would say some of the things perhaps that he said to the Court.
THE COURT: That is a matter for him to decide and not for you, Mr. O’Driscoll. I am sure you would not say them.
MR. O’DRISCOLL: I would just ask, Your Honor—
MR. GALLAGHER: Your Honor, I think that the bitterness that I feel towards the justice system you know, I can’t help that. I can’t help being bitter about the way I feel towards you people.
THE COURT: That is all right.
MR. GALLAGHER: The justice system.
THE COURT: I gave you probation. I made a grave mistake then but I am trying to correct it just now.
MR. GALLAGHER: What in your opinion—is it your honest opinion that prison is going to help me?
THE COURT: No, it isn’t.
MR. GALLAGHER: Well, why don’t you try to find something that is going to help me?
THE COURT: I am going to keep you out of society.
MR. GALLAGHER: Why don’t you put me in a program that is five years long or something? Something that will be beneficial.
THE COURT: You will have a program up there. I understand they do have a program.
MR. GALLAGHER: Oh, yeah, work your butt off. That is your program. The program is all day, get up and go to work. That is all it is, Your Honor.
Do you call that a program?
THE COURT: I don’t know. I have never, thank God, been in jail before.
MR. GALLAGHER: You see, I ain’t trying to be a smart ass.
MR. GALLAGHER: The mockery part is that I can’t see—you can honestly just sit there and say oh well, hell, go ahead and take another three and a half years of his life or three years or whatever.
THE COURT: I am trying to make an Order to make it perfectly clear to you that when you come out you don’t start stealing—
MR. GALLAGHER: All you are doing is making me more bitter and more hatred upon me.
THE COURT: Well —
MR. GALLAGHER: Your Honor, what would it take, you know, for me to get out and get so damn embittered with hatred that I just get a gun and just start shooting at people and say piss on everybody.
THE COURT: I think that is probably true. But I would not recommend it to you.
MR. GALLAGHER: No, I wouldn’t recommend it either. You know, eventually it could happen.
THE COURT: Yes, I know. I am very sorry, sir, but you should have thought of all of this a long time ago. I gave you probation. I put you on seven years probation. What did you do? You came out and no sooner were you out but you were—
MR. GALLAGHER: Your Honor, in a just round about way, you are just telling me to shut up.
THE COURT: No, I am not.”

Appellant contends that he was placed in jeopardy twice. He contends that the court below revoked the initial sentence imposed on the probation violation and subsequently imposed a harsher sentence as a direct result of appellant’s criticism.

Our Supreme Court has held that modification of a sentence imposed on a criminal defendant which increases the punishment constitutes a violation of the double jeopardy clause. Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971); cert. denied, 405 U.S. 1064, 92 S.Ct. 1490, 31 L.Ed.2d 794 (1972). The prosecution concedes that Silver-man stands for the principle herein cited but contends that this principle is inapposite because there was only one sentencing order (i.e., the period of incarceration of three and one half to seven years) which was docketed by the Clerk of Courts of Montgomery County, the three year “sentence” having been orally imposed and not docketed was without legal effect. During the colloquy the court below initially indicated that he would sentence the appellant to a term of imprisonment of three to seven years. However, after indicating this, the court imposed a final sentence of three and one-half to seven years based upon the defendant’s conduct during the sentencing colloquy which clearly indicated the appellant’s dangerous propensities, the fact that he had no remorse for his crimes and his utter contempt for the legal process. Such factors became known to the court during the sentencing colloquy. A criminal defendant’s attitude, including a lack of contrition for his criminal conduct, is one of the proper criteria upon which a court may exercise its discretion in sentencing. Therefore, we hold that the court imposed but one sentence, that being three and one-half to seven years.

Appellant also claims that the sentence is unjustly harsh and manifestly excessive under the circumstances because the sentencing court failed to state on the record the reasons for the imposition of a sentence of total confinement. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Kostka, 276 Pa.Superior Ct. 494, 119 A.2d 566 (1980); Commonwealth v. Mallon, 267 Pa.Super. 163, 406 A.2d 569 (1979). We cannot agree.

The colloquy reveals and the trial court’s opinion adequately manifest a balanced consideration of the relevant factors which compelled the court to impose a sentence of total confinement. We quote from the court’s opinion:

“Defendant flagrantly violated his probation. Six months from the time he was released from Federal prison, he was arrested and charged with the same type of criminal offenses for which he was originally placed on probation. It is obvious he is not likely to respond to further probationary treatment. Defendant was given an unusual opportunity to be decent but chose to continue his total disregard for authority and laws.
Anything other than total confinement would be inappropriate. Defendant has a long criminal record. He has done nothing to show that he has even barely attempted to alter his behavior. Restrictive measures are required in order to protect society from being further victimized by his criminal conduct. Defendant’s long history of criminal activity and encounters with the law are the result of his confirmed, unchangeable criminal attitude towards society and its rules.
By pleading guilty to a felony of the third degree, defendant knew he could be sentenced to prison for a maximum of seven, years and fined up to $15,000.00. 18 Pa.C.S. Sections 3903(a), 1103(3), 1101(2). The sentence of three and one-half to seven years is within the statutorily prescribed limits.
In light of the considerations mandated for sentencing, defendant’s sentence is not excessive, and any sentence less than that imposed would have tended to depreciate the seriousness of the offenses committed.
The sentence was proper and the appeal should be dismissed.”

The Court’s opinion and a thorough examination of the record thus manifest a consideration of the statutory guidelines for sentencing, and because the sentence imposed was within the statutorily prescribed limits, this Court will not disturb the sentence as unduly harsh or manifestly excessive.

Judgment of sentence affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I must dissent. Appellant was placed in jeopardy twice when the court revoked the initial sentence imposed on the probation violation and subsequently imposed a harsher sentence as a direct result of appellant’s criticism (i.e., “You know, you are just making a mockery out of justice”,) to the court; therefore, the additional period of incarceration should be vacated.

The majority concludes that the court imposed only one sentence, the sentence of three years was imposed orally and was without legal effect. This writer cannot agree. Taking the prosecution’s argument to its logical extension would create a per se rule in which no double jeopardy violation could ever occur where an orally imposed sentence had been increased. This Court rejected such a suggestion in Commonwealth v. Foster, 229 Pa.Super. 269, 272 n. 4, 324 A.2d 538, 540 n. 4 (1974). In Foster, we said:

“Of course, the facts of this case do not pose a situation where the sentencing court orally pronounced a sentence in the presence of the defendant and subsequently, some time after the hearing, entered a more severe sentence on the record. This situation is much closer to the facts of Silverman, and is one with which we are not concerned here.” (emphasis added.)

To begin with, an appellate court’s review of the legality of a sentence is not limited to the language contained in the docketed order. See Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). That sentence also must be imposed in accordance with certain guidelines. See 42 Pa.C.S.A. §§ 9721 and 9725, Pa.R.Crim.P. 1401 et seq., and Id. One of the most basic requirements is that the “trial court . . . state on the record, the reasons for the sentence imposed”, Id., 474 Pa. at 133 n. 24, 377 A.2d at 149 n. 24, because:

“[w]ithout a statement of reasons on the record, it is difficult to perceive how an appellate court can discern whether the trial court has exercised its discretion ‘within certain procedural limits including the consideration of sufficient and accurate information.’ ” Id., 474 Pa. at 133 n. 24, 377 A.2d at 149 n. 24 (emphasis added).

Thus, contrary to the majority’s statement of the law, an appellate court is not restricted to an examination of the judgment of sentence inserted on the docket entries as we must examine the record to determine if that sentence was set within established guidelines.

Our Supreme Court rejected that notion in Commonwealth v. Riggins, supra. In Riggins, the Court said:

“Eminent and wise judges have warned [ ] against . . . [requiring a statement of reasons]. Our judgment, they say, is better than our reasons. And, it is vain to attempt to explain the exact proportions attributable to our interest in punishment, retribution, reform, deterrence, even vengeance. But are these arguments valid? For there is a grave danger that a sentencing judge will allow his emotions or other transient factors to sway him. The strongest safeguard is for him to act only after formulating a statement of the considerations which he allows himself to take into account.” (Quoting Wyzanchi, “A Trial Judge’s Freedom and Responsibility, 65 Harv.L.Rev. 1281, 1292 (1952) (Emphasis added).

Id., 474 Pa. at 129, n. 17, 377 A.2d at 147, n. 17.

Upon examining the statement of reasons in the record before us, it is clear that the trial court “allowed his emotions to sway him”, and, thus, when he imposed an additional sentence of six months imprisonment violated the principles set forth in Commonwealth v. Silverman, supra.

In Silverman, the trial court orally imposed a sentence which would have been suspended if the federal authorities committed the defendant to a program for the rehabilitation of narcotics users. Id., 442 Pa. at 213, 275 A.2d at 309. The next day, the trial court said he had “second thoughts” about his actions of the previous day because of a report he had received in the meantime which informed him of other criminal charges currently pending against Silverman. A new sentence then was imposed directing the defendant to serve a definite term of imprisonment. Our Supreme Court reversed the trial court and said that “a modification of a sentence imposed on a criminal defendant which increases the punishment is double jeopardy.” Id., 442 Pa. at 217, 275 A.2d at 311. Similarly, this writer finds that the trial court’s statement, “Well, just a minute. Come back here. I will add a little more time on to it” (N.T. 39), which was made after the court had imposed a sentence of three to seven years is analogous to the “second thoughts” entertained by the trial court in Silverman, and hence, the subsequent modification of that sentence which increased appellant’s sentence to a minimum of three and one half years violated double jeopardy. The fact that the “second thoughts” occurred instantaneously, instead of on the next day as did occur in Silverman, does not alter the applicability of the principle previously stated.

Of course, a court may modify a sentence in a proper case. See Pa.R.Crim.P. 1410. However, where a sentence has been increased, “the factual data upon which the increased data is based must be made [a] part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” Commonwealth v. Riggins, 474 Pa. at 126, 377 A.2d at 146. (Emphasis added). The factual data in the instant case disclose that the increased sentence of six months was not imposed in error; rather, it was levied for what the court obviously considered to be the contumacious behavior appellant demonstrated when the court imposed his sentence. Because “a sentencing judge should not allow his emotions or other transient factors to sway him,” supra, that portion of the sentence which was imposed as a direct punitive reaction to the verbal affront uttered to the court was constitutionally infirm. The court should not have considered such behavior as a factor in sentencing. Cf. Commonwealth v. Kostka, 276 Pa.Super. 494, 507, 419 A.2d 566, 573 (1980) (where the sentence imposed was invalid where the trial court in his comments based the sentence upon his own belief of the value of retribution); See also 42 Pa.C.S.A. § 9725 for the criteria a court must consider in imposing a sentence of total confinement.

The majority concludes that the court could consider “the fact that [appellant] had no remorse for his crimes and his utter contempt for the legal process.” At 822. While this writer does not take issue with the principle that a defendant’s attitude is a proper factor to .be considered in determining a sentence, that principle is inapplicable where a sentence already has been imposed. A defendant who engages in contemptible behavior in the presence of the court after a sentence already has been imposed can be held in contempt; however, that is a separate and distinct legal proceeding which the sentencing court here easily could have invoked. See Commonwealth v. Rubright, 489 Pa. 356, 414 A.2d 106 (1980).

Additionally, this writer also must reject the prosecution’s implication that because a weighty consideration in a court’s analysis of the double jeopardy issue should be whether a defendant has begun to serve his sentence, a different result would obtain in the instant case because appellant had not begun to serve his sentence when the increased sentence was imposed. Such a factor has never been considered to be the only litmus test for determining whether a sentence is infirm. See Commonwealth v. Brown, 455 Pa. 274, 277, 314 A.2d 506, 508 (1974) (where our Supreme Court said “More important for our resolution of the instant case, however, is our decision . . where we held, inter alia, that even an increase in sentence which is merely designed to correct an inadvertent judicial mistake must be scrutinized as carefully as an increase which results from a reconsideration of sentencing factors or from a judicial change of mind.”) (footnote omitted) (emphasis added). Similarly, in the instant case, this writer has scrutinized the record and determined that the increased sentence did not comport with the requirements of this Court.

No one would disagree that sentencing is perhaps the most difficult and soul-searching of all judicial functions. That is precisely the reason that such an important function cannot and should not be discharged impulsively, out of pique or impatience. See footnote 2, infra. Because the record indicates that the instant sentence was imposed precisely for that reason, I must register my dissent.

      . Prior to revoking probation, a court must hold “(1) a preliminary hearing to determine whether there was probable cause to believe that [a defendant] has violated his probation and (2). a final hearing prior to the ultimate decision [to determine] whether his probation should be revoked. The preliminary hearing to establish probable cause is known as a Gagnon I hearing and the final hearing is known as a Gagnon II hearing.” Commonwealth v. Williams, 272 Pa.Super. 308, 310, 415 A.2d 903, 904 (1979).

      . In its opinion, the trial court also said “[Ojnly those sentences which are entered upon the records of the Court, however, are controlling. Cf. Com[monwealth] v. Thomas, 219 Pa.Superior Ct. 22, (280 A.2d 651) (1971); Com[monwealth] v. Zelnick, 202 Pa.Superior Ct. 129, [195 A.2d 171] (1964).” Trial Court Opinion at 3.
      First of all, the principle enunciated in Thomas is consistent with the result this writer reaches today. In that case, the sentencing judge attempted to “correct” a sentence from a suspended sentence to a term of incarceration of one to three years imprisonment. With this change, the sentence would have conformed with the one orally imposed. This Court disallowed the attempt by the judge to conform the sentence with his “true intention” and relied on the principle of Silverman which voided the “old rule permitting a sentencing judge to increase the sentence within either the term of court or thirty days if the term of court terminated prior to the thirty day period in light of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).... ” Commonwealth v. Thomas, Id., 219 Pa.Super. at 26, 280 A.2d at 653. (Emphasis added) Thus, the court disallowed the increased sentence even though it said in dictum that “the controlling record is the endorsement of the sentence upon the back of the indictment, signed by the judge.” Commonwealth v. Thomas, Id., 219 Pa.Super. at 28, 280 A.2d at 654.
      Secondly, the validity of the Zelnick case would appear to be eroded by Commonwealth v. Silverman, supra, and Commonwealth v. Riggins, supra. In Zelnick, this Court allowed the increase of a sentence because a “court has full power to reconsider the original sentences and to reduce or increase them so long as the term during the original sentence was imposed had not expired,” and also because “it is firmly established that the extent of sentence is a matter within the discretion of the trial judge and will not be disturbed if within statutory limits.” Commonwealth v. Zelnick, 202 Pa.Super. at 131, 195 A.2d at 173. However, since Commonwealth v. Silver-man, supra, and Commonwealth v. Riggins, supra, a court’s authority to sentence a defendant, as discussed above, has been circumscribed.

      . Although not ruling on whether the evidence in this case would have supported a contempt conviction, we note that a court has the power to, “inflict summary punishments for contempt of court” which is restricted inter alia to a case where “the misbehavior of any person in the presence of the court, thereby obstructs] the administration of justice”. 42 Pa.C.S.A. § 4131.


author: MONTGOMERY, Judge:

text:
    442 A.2d 826
    COMMONWEALTH of Pennsylvania v. Donald M. KIDD, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 20, 1981.
    Filed March 12, 1982.

      John J. Morgan, Butler, for appellant.
    Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.

      Before HESTER, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This appeal arises from appellant’s conviction by a jury of disorderly conduct and terroristic threats, and his concurrent sentences of six (6) months to one (1) year, and two (2) to five (5) years imprisonment respectively.

Appellant sets forth two assignments of error herein: (1) the lower court erred in not granting a demurrer to the Commonwealth’s case as the prosecution failed to establish the elements of either of the charged offenses; and, (2) the lower court erred in not finding that the Commonwealth had not proven intent to commit either of the offenses. As both assignments of error rely on a sufficiency of the evidence argument, we will analyze them in that light.

Disorderly conduct is defined in 18 Pa.C.S. § 5503(a) as follows:

“A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”

Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Isaacman, 269 Pa.Super. 263, 409 A.2d 880 (1979), we are satisfied that there was sufficient evidence for the jury to find the requisite elements, including intent, to support their verdict. Our finding is buttressed by the fact that the intent requirement may be met by a showing of a reckless disregard of the risk of public inconvenience, even if appellant’s principle intent was to insult the police rather than to cause public inconvenience or annoyance. Commonwealth v. Hughes, 270 Pa.Super. 108, 410 A.2d 1272 (1979). We, therefore, affirm the judgment of sentence as to disorderly conduct.

Appellant’s arguments as they relate to the offense of terroristic threats appear to be more meritorious, however. Section 2706 of the Crimes Code defines terroristic threats as a threat

“. . . to commit any crime of violence with intent to terrorize another or .. . otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.”

Even in viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Isaacman, supra, it is difficult to find the requisite element of actual intent to terrorize or reckless disregard of the risk of causing such terror. The facts are as follows:

In response to a telephone call from a local tavern, two Butler City police officers arrested appellant for public drunkenness outside of the tavern. As he was exiting the police car at the county jail, appellant fell in the street receiving a cut above his eye. The officers then took appellant to the local hospital for treatment. Prior to and during the time he was in Butler County Memorial Hospital’s emergency room, appellant repeatedly shouted obscenities and generally screamed and shouted at the officers. While in the emergency room, appellant told the police he was going to kill them, machine gun them, if given a chance. During most of this time, appellant’s hands were handcuffed behind his back. Emergency room personnel, as well as the police officers, testified to appellant’s behavior. The emergency room personnel interpreted appellant’s emotional state as one of anger.

It is true that the present ability to inflict harm is not required as an element of this offense. See, Commonwealth v. Holguin, 254 Pa.Super. 295, 385 A.2d 1346 (1978); and, Commonwealth v. Ashford, 268 Pa.Super. 225, 407 A.2d 1328 (1979). However, the Pennsylvania Joint State Government Commission’s Comment on 18 Pa.C.S. § 2706 states that its

"... purpose is to impose criminal liability on persons who make threats which seriously impair personal security or public convenience. It is not intended ... to penalize mere spur-of-the-moment threats which result from anger.”

In viewing the facts and circumstances under which appellant’s threats were made, Commonwealth v. White, 232 Pa.Super. 176, 335 A.2d 436 (1975), we conclude that the record contains insufficient evidence that appellant, by his acts, intended to place the officers in a state of fear that agitates body and mind. See, Commonwealth v. Sullivan, 269 Pa.Super. 279, 409 A.2d 888 (1979). Appellant was obviously inebriated and in an agitated and angry state of mind. The record evinces that his conduct expressed transitory anger rather than a settled purpose to carry out the threat or to terrorize the other person. His acts did not involve the sort of conduct that the Legislature intended to deter and punish by promulgation of section 2706 of the Crimes Code.

Accordingly, judgment of sentence as to the charge of disorderly conduct affirmed; judgment of sentence as to the charge of terroristic threats vacated.

      . Appellant was found guilty of the summary offense of public drunkenness by the Honorable George P. Kiester who presided over appellant’s trial. Appellant testified that he had a few shots of liquor and a couple dozen beers while in the tavern.


author: PER CURIAM:

text:
    442 A.2d 828
    Albert RAYBUCK t/a Kulpmont Motors v. James R. SAWEIKAS and Elizabeth Saweikas, Appellants.
    Superior Court of Pennsylvania.
    Submitted March 9, 1981.
    Filed March 12, 1982.

      Stephen Cohen, Harrisburg, for appellants.
    Vincent R. Rovito, Jr., Shamokin, for appellee.
    Before HESTER, ROWLEY and MONTGOMERY, JJ.
   PER CURIAM:

The order of April 14, 1980 is vacated and the case is remanded to the trial court with directions to enter an order granting appellee twenty (20) days to file a responsive pleading to appellants’ “Motion to Vacate” the order of March 4, 1980, and to take such further proceedings thereafter as may be appropriate.


text:
    442 A.2d 828
    Judith K. GARBART v. James GARBART, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1981.
    Filed March 12, 1982.

      Neil J. Marcus, Monongahela, for appellant.
    James W. Haines, Jr., Monongahela, submitted a brief on behalf of appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   PER CURIAM:

This is an appeal from the lower court’s Order dated July 22, 1980, making absolute Appellee’s Rule to Show Cause why this divorce case should not proceed under the Divorce Code. Appellant alleges, inter alia, that the lower court erred by making this Rule absolute, because the same court had two days previously issued a “Special Decree” in divorce under the Divorce Law of 1929.

Although not raised by either party, we shall address the issue of jurisdiction sua sponte.

An order granting an application that a pending divorce action proceed under the Divorce Code is not a final order and is therefore interlocutory. Toll v. Toll, 293 Pa. Super.Ct. 549, 439 A.2d 712 (1981).

This appeal must therefore be quashed.

      . Act of 1980, April 2, P.L. 63, No. 26, eff. July 1, 1980, 23 P.S. § 101 et seq.

      . We note our concern in reference to the factual situation in this case. The lower court issued a “Special Decree” in divorce under the Divorce Law of 1929 on July 19, 1980, the day the Master’s Report was filed. This was in violation of Washington County Local Rules of Court L-1123 e. (xi)(k) which requires notice be given to the parties and an opportunity for the parties to file exceptions to the Report. We are unable to conclude why the lower court then granted Appellee’s application to proceed under the Divorce Code if the divorce decree was meant to be a final order, as the language in the decree indicates. However, because this court lacks jurisdiction, we are unable to consider this appeal on the merits.