text:
    462 A.2d 793
    Alvira BOTTERO, Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. and Abe Greenberg, and Ivyridge Investment Corporation.
    Superior Court of Pennsylvania.
    Argued March 22, 1983.
    Filed July 1, 1983.
    Petition for Allowance of Appeal Denied Oct. 13, 1983.

      Julius E. Fioravanti, Philadelphia, for appellant.
    James C. Stroud, Philadelphia, for appellees.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the trial court denying a petition to open judgment which was filed by appellant, Alvira Bottero. We affirm.

The facts in this case are as follows:

Appellant-plaintiff filed a summons in trespass on December 22, 1978, after she had fallen in a shopping center which was owned by two of the defendants, Abe Greenberg and Ivy Ridge Investment Corporation. Appellee-defendant, The Great Atlantic & Pacific Tea Company, Inc. (A & P) rented one of the stores in the shopping center, and appellant fell some distance from the A & P store.

Appellant served notice on A & P; however, no service was effectuated on the other two defendants. Approximately a year and a half later, on April 29, 1980, appellee filed a rule on appellant to file a complaint. However, no complaint was filed. Six weeks later, on July 8,1980, a non pros was entered against appellant for failing to file a complaint.

Over one year later, on October 14, 1981, appellant filed a petition to open judgment. However, before appellant filed the petition, another procedural scenario developed. On or about October 15, 1980, the trial court denied appellant’s request to extend the time for filing a certificate of readiness. The trial court ordered the certificate to be filed no later than October 30, 1980. On October 21, 1980, appellant filed a certificate of readiness even though neither a complaint had been filed nor had service been effectuated on the remaining two defendants. Approximately ten months later, the matter was assigned to arbitration and listed for an arbitration hearing. The hearing never was held because no complaint had been filed and judgment of non pros already had been entered. This appeal followed.

Appellant does not dispute the fact that notice was given. Rather, appellant argues that the trial court abused its discretion when it refused to open the judgment of non pros because no further notice of intent to enter the judgment was given, because the default and delay was excused by counsel’s illness and personal problems, and because counsel immediately attempted to negotiate the opening of the default judgment. We reject appellant’s contentions.

In determining whether a court has ruled properly on a petition to open judgment, we have said the following:

“A petition to open a judgment is an appeal to the court’s equitable powers and is a matter for judicial discretion. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Hamborsky v. Magyar Presbyterian Church [78 Pa.Super. 519], supra. In considering a petition to open a judgment, the court may consider matters dehors the record. See Matlock v. Lipare, 243 Pa.Super. 167, 170-71, 364 A.2d 503, 504 (1976).”
Kophazy v. Kophazy, 279 Pa.Super. 373, 375, 421 A.2d 246, 247 (1980).

Moreover, we recognize that:

“The criteria for opening a judgment of non pros are: (1) the petition must be timely filed; (2) the reason for the default reasonably explained or excused; and, (3) the facts constituting grounds for the cause of action be alleged.”
“To the same effect: Goldstein v. Graduate Hospital of University of Pennsylvania, 441 Pa. 179, 272 A.2d 472 (1966); Thorn v. Clearfield Borough, 420 Pa. 584, 586, 218 A.2d 298 (1966); Dupree v. Lee, 241 Pa.Super. 259, 262, 361 A.2d 331, 333 (1976); Johnson v. Mulhall, 230 Pa.Super. 183, 185, 326 A.2d 439, 440 (1974); Matyas v. Albert Einstein Medical Center, 225 Pa.Super. 230, 233, 310 A.2d 301, 302 (1973)”
Faulks v. Papo Bar, Inc., 280 Pa.Super. 454, 456-57, 421 A.2d 810, 811 (1980).

These factors must coalesce, and in any event, an appellate court may not reverse the trial court’s ruling unless an abuse of discretion is evident from the record. Kophazy v. Kophazy, supra.

When the above factors are applied to the instant case, it is clear that the trial court did not abuse its discretion in denying appellant’s petition to open judgment.

With respect to appellant’s argument that she should have received further notice of appellee’s intent to enter a non pros, the law imposes no such requirement. In accordance with Pa.R.C.P. 1037(a) appellee filed a praecipe for the trial court to enter a rule upon the appellant to file a complaint within twenty days “after service of the rule.” When no complaint was filed, appellee petitioned the trial court to enter a judgment of non pros. The commentary to Pa.R.C.P. 237.1 contains the following appropriate language explaining why appellee did not have to give appellant further notice:

“Scope of Rule
Rule 237.1 requires prior notice of intent to enter a default judgment and applies to all default judgments, except in two instances: (1) those in which the judgment is entered pursuant to an order of the court or pursuant to a rule to show cause requiring action to be taken within a specified period of time under penalty of default; and (2) those actions in which prior special notice of default under Section 403(a) of Act No. 6 of 1974 and Rule 2984(2) is required in connection with residential mortgages as defined in the Act and regulations thereunder. In the latter instance, notice under Rule 237.1 would be duplicative.
A familiar illustration of a situation where notice is not required is a judgment of non pros under Rule 1037(a) where an action is commenced by a writ of summons without a complaint, a defendant by praecipe may enter a rule as of course upon the plaintiff to file a complaint within twenty days after service of the rule or suffer judgment of non pros. Upon failure to file the complaint within the time fixed, the defendant can proceed by praecipe to have a judgment of non pros entered by the prothonotary. Here, a further notice of intent to enter the default would be unjustified. The plaintiff has already received a twenty-day notice.”
(emphasis added).

In view of the above, a further notice of intent to enter a default was unnecessary.

Appellant’s allegation concerning the fact that counsel’s illness and personal problems excused the default and delay is also without merit. In the petition to open, appellant alleged the following set of facts:

17. Furthermore, on May 19, 1980, your Petitioner [appellant’s attorney] sustained a stroke and was rushed by Philadelphia Rescue Squad from his office at 2105 Two Girard Plaza, Philadelphia, to the Hahnemann Hospital, Philadelphia, Pennsylvania.
18. That your Petitioner was then and there treated by the hospital authorities and was diagnosed as a hypertension problem and since that time, he has been under the care, treatment, and daily medication of Dr. Richard Pennock, Cardiologist, Hahnemann Hospital, Philadelphia.
19. That because of the aforesaid, your Petitioner was out of the office for about one month, recouperating and did not return to his office on a full time basis until the Fall of 1980.
20. Furthermore, your Petitioner resides alone at 240 Spruce Street, Philadelphia, and in November, 1980, pursuant to a painting contract with painters to paint his residence, said painters accidentally started a fire which destroyed the roof of your petitioner’s residence. Your petitioner therefore, had to contribute two weeks of his time at his residence, for insurance inspections, construction and labor workers, Fire Department interviews and similar chores which only could be done by your petitioner.
21. That on or about April 17, 1981, your Petitioner popped a right inguinial hernia and entered St. Mary’s Hospital on April 21, 1981, for surgery and remained there until May 5, 1981.
22. That your Petitioner was again required to recouperate for the summer months of 1981 and returned to the full-time practice of law in the Fall of 1981.
23. Furthermore, Plaintiff’s son-in-law suddenly passed away in 1980, whereupon Plaintiff retired from her job and was unavailable for a period of time thereafter.
24. That your Petitioner was admitted to the Bar in 1962 and is a sole practitioner.
25. That your petitioner is active in trial, Bar and Community matters as are most other counsel, the paper work being voluminous, respectfully suggests that more communication between counsel would have averted this situ-' ation.
26. That your petitioner would have expected that opposing counsel would have inquired why the Complaint had not been filed after receiving a letter that it was being filed with the Court (and a copy) as he would have done if the circumstances were reversed.”
“PETITION TO OPEN JUDGMENT NON PROS at 3-4.

The trial court examined these facts and said:

“Counsel for the plaintiff [appellee,] attempts to explain his failure to file a complaint by stating that he became ill in May of 1980 and later in April, 1981. In. spite of this, however, on August 22, 1980, plaintiff formally forwarded a copy of a proposed complaint to counsel for the defendant [appellee].
There is no explanation for plaintiffs failure to take any action between the date of filing the summons (December 22, 1978) and August 22, 1980, nor was any motion to remove the non pros filed until October 16, 1981. It is also to be noted that plaintiff’s counsel is an active and busy practitioner who has frequently appeared before this Court on many occasions since December 22, 1978 and many other Courts as well. The reasons given for delay in this case do not justify the removal of the non pros. Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128, 131.”
Trial Court’s Opinion at 11-12.

Appellant has not offered any facts in opposition to the trial court’s statements. Instead, appellant merely counters by stating that “[t]he courts have not been hesitant to open judgments caused by counsel’s illnes or delay”. Brief for Appellant at 8. Because appellant has failed to explain sufficiently his forwarding of a copy of a proposed complaint to counsel for the appellee during the time when he was alleged to be ill, the trial court’s resolution of the credibility issue will not be disturbed.

Appellant also contends that his petition to open judgment was filed promptly because counsel attempted to negotiate the opening of the judgment immediately. However, appellant conceded in the petition to open that “counsel for defendant, [appellee,] A & P, after receiving the copy of the Complaint herein and after discussing the matter with his principal, stated to your petitioner [, counsel for appellant,] that he was not in any position to enter into any stipulation to open the judgment because he did not have authority from his principal.” PETITION TO OPEN JUDGMENT NON PROS” Allegation # 14. Additionally, the record shows that a letter from appellee’s counsel dated August 22, 1980, states that “We [, appellee’s counsel,] cannot maintain this file indefinitely in the present status and if we do not receive the Complaint by August 29, 1980 we will close our file.” “PETITION TO OPEN JUDGMENT NON PROS”, Exhibit “C”. Notwithstanding this information, appellant waited until over one year later, on October 14, 1981 to file a petition to open.

Appellant argues that “[although [appellant's] counsel promptly began negotiations to open the judgment counsel for [appellees] equivocated and never delivered a clear refusal.” Brief for Appellant at 5. However, the record shows that on August 20,1981, appellee’s attorney stated in a “ARBITRATION PROGRAM PETITION” that [a] judgment of non pros was entered in this matter on July 8, 1980 and notice was subsequently given. There is no controversy to arbitrate as the litigation ended over one year ago.” “ARBITRATION PROGRAM PETITION” Allegation # 9. Then, in a letter dated October 13, 1981, appellee advised that the “matter be returned to the Prothonotary’s office as a closed matter.” .

However, even viewing the evidence in a light most favorable to the appellant, there was no statement in appellant’s petition that negotiations were being conducted after August 20, 1981, when appellee’s “ARBITRATION PROGRAM PETITION” was filed which stated that “[a] judgment of non pros was entered in this matter ... [and that] there is no controversy to arbitrate as the litigation ended over one year ago” (emphasis added). As a result, the unexplained six week delay which occurred in filing appellant’s petition to open was not timely, and the trial court did not abuse its discretion in refusing to grant appellant’s petition to open.

In view of our disposition, there is no need to consider whether there were facts sufficient to allege a cause of action.

Order of the trial court is affirmed.

JOHNSON, J., concurs in the result.

      . The order appealed is an interlocutory one, from which an appeal may be taken as of right. See Pa.R.A.P. 311(a)(1).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    462 A.2d 798
    Victoria E. TAGGART v. William E. TAGGART, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1983.
    Filed July 1, 1983.

      C. Richard Morton, West Chester, for appellant.
    Lee Ruslander, Assistant District Attorney, West Chester, for appellee.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   PER CURIAM:

Appellant has taken this appeal from an order directing him to pay support to his wife and daughter in the amount of Two Hundred Dollars ($200.00) per week. Since the order appealed from is not a final order of support, we are compelled—as the parties themselves concede we must—to quash the appeal.

Appellee filed a complaint under the Civil Procedural Support law against appellant on December 27, 1979, seeking support for herself and her child. After a hearing on March 20, 1980, the Court of Common Pleas entered an order dated March 25, 1980, directing appellant to pay Two Hundred Dollars ($200.00) per week for the support of his wife and one child and directing that he receive credit toward the full amount of the support order for payments made on the mortgage, taxes and insurance in connection with the family home. Appellant thereafter filed a petition for reconsideration and requested a rehearing but the court refused this application by order dated April 3, 1980. The order granted appellant the right to file, within ten (10) days, exceptions to the proceedings of March 20 and to the order of March 25, 1980 but also directed appellant to continue to pay support in compliance with the order of March 25, 1980. Appellant filed timely exceptions to the order and a hearing was set for June 11, 1980. However, prior to the scheduled hearing, counsel for appellant filed an appeal to this court from the support order, the effect of which was to divest the Common Pleas Court of jurisdiction to further proceed with the adjudication of the merits of those exceptions. See Pa.R.A.P. 1701(a). It is well established that an order of court dismissing exceptions following a non-jury trial which has not been reduced to judgment and docketed is interlocutory and nonappealable. Goldberg v. Goldberg, 292 Pa.Super. 318, 437 A.2d 64 (1981); Murray v. Abcon, Inc., 291 Pa.Super. 428, 435 A.2d 1301 (1981). An appeal from such an order is premature and must be quashed since this court lacks jurisdiction to consider it. The same is also true when an appeal is taken following a non-jury trial but before the court en banc has ruled on exceptions. “In an action tried without a jury, an appeal is premature if entered before exceptions have been disposed of...” Goodrich-Amram 2d § 1038(e). See Pa.R.C.P. 1038. Thus, there exists no appealable order in this case and we must quash this appeal as one having been taken from an interlocutory order. See Commonwealth ex rel. Nixon v. Nixon, 312 Pa.Super. 313, 458 A.2d 976 (1983); Paul v. Paul, 281 Pa.Super. 202, 211, 421 A.2d 1219, 1223-24 (1980).

We are further constrained to observe that disposition of the exceptions and the entry of a final and appealable order of support will not cure the inadequacy of the record before us. At the time of the proceedings in the Common Pleas Court, the practice in non-support hearings was to refrain from making a stenographic record unless counsel for either party requested that a stenographic record be made. In Mansfield v. Lopez, 288 Pa.Super. 567, 432 A.2d 1016 (1981), this court declared that practice improper and contrary to the Act of May 1, 1907, P.L. 135, § 3, 17 P.S. § 1804 which provides:

The official sténographers of the several courts of common pleas, when engaged in such courts or in the courts of oyer and terminer, general jail delivery and quarter sessions of the peace, shall take full stenographic notes of the testimony in all judicial proceedings in any trial of fact, at law or in equity, together with the judge’s charge, and of any and every ruling, order, or remark of the trial judge, or judges, relating to the case on trial, made in the presence of the jury, in any stage of the proceedings, to which ruling, order or remark either party may except in the same manner and with the same effect as is now practiced in relation to the judge’s charge; and upon any trial without a jury, shall likewise report the proceedings, including the testimony of all witnesses examined and matters offered in evidence, and the rulings of the court upon the admission or rejection thereof, and the findings of the court. And it shall also be the duty of such stenographers to take full stenographic notes of such other matters, in connection with the business of the courts as the judges of the respective courts, from time to time, may direct.

We concluded in Mansfield that the Act of May 1, 1907 remains in effect despite its repeal by the Judiciary Act of 1976, Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. § 101 et seq., because § 1722(a) of the Judicial Code provides that such repealed statutes were to be suspended only to the extent that they were inconsistent with rules proscribed under § 1722(a). Since no such inconsistent rule had been promulgated, we concluded that the necessary implication of this provision was that the statute in question was not suspended and still remains in effect, thus requiring a stenographic record of support hearings.

Thus, were we to have jurisdiction of this appeal, it would, nonetheless, be necessary for this court to reverse the order of support and remand for a new trial at which “full stenographic notes of the testimony” would be taken in accordance with the Act of May 1, 1907, 17 P.S. § 1804, and Mansfield, since a meaningful appellate review in the absence of such a transcribed record is impossible. However, since the appellant has taken this appeal from an interlocutory order, we must quash the appeal with the recommendation to the Common Pleas Court that a de novo hearing be ordered to correct the inadequacy of the present record and to permit appellant, if necessary, the opportunity for meaningful appellate review. See Commonwealth v. Doranzo, 309 Pa.Super. 473, 455 A.2d 708 (1983); Mansfield v. Lopez, supra; Witherow v. Witherow, 288 Pa.Super. 519, 521 n. 1, 432 A.2d 634, 635 n. 1 (1981).

So ordered.


text:
    462 A.2d 800
    WHIRLEY INDUSTRIES, INC., Appellant, v. Leatrice G. SEGEL and Harry C. Segel, Her Husband, and Segel & Son, Inc., Jointly and Individually.
    Superior Court of Pennsylvania.
    Argued April 26, 1982.
    Filed July 1, 1983.

      David W. Swanson, Warren, for appellant.
    Will J. Schaaf, Erie, for appellees.
    Joseph T. Messina, Erie, for participating party.
    Before BECK, MONTEMURO and POPOVICH, JJ.
   PER CURIAM:

In this case of first impression, appellant Whirley Industries, Inc. seeks to recover the increased costs of Workers’ Compensation insurance premiums resulting from benefits paid by Whirley’s insurer to Whirley’s employee, to compensate the employee for injuries sustained due to negligence of the third party tortfeasor. The lower court sustained a demurrer by appellee Leatrice G. Segal, the party whose negligence caused the injuries, and we affirm.

The facts, agreed to by the parties, concern a motor vehicle accident in which William W. Stockdill, Whirley’s employee, was injured. Stockdill, in the course of his employment, drove Whirley’s truck to the United States Post Office in Warren, Pennsylvania. After completing his employer’s business at the Post Office, Stockdill returned to his parked vehicle and passed in front of it. At that time, appellee Segal was operating a car directly in the rear of the Whirley vehicle. She collided with the parked truck, forcing it onto Stockdill, causing him severe bodily injuries. The injuries suffered by Stockdill were directly and proximately caused by the negligence of driver Segal. All claims of Stockdill against Segal have been satisfied and a complete release has been executed by Stockdill in favor of Segal and the other defendants. As a result of his injuries, Stockdill was unable to work, and he received Workers’ Compensation benefits provided by the Pennsylvania Manufacturers Association, the insurance carrier of Whirley. The carrier thereupon increased the premiums charged to Whirley by $22,451, and Whirley began an action in trespass to recover this sum directly from Segal.

Prior to argument on appeal, Segal filed a Motion for Dismissal of Appeal based on Whirley’s failure to comply with Pa.R.C.P. 1038(d):

(d) Within ten (10) days after notice of the filing of the decision, exceptions may be filed by any party to the decision or any part thereof, to rulings on objections to evidence or to any other matters occurring during the trial. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters. No motion for a new trial, for judgment non obstante veredicto, in arrest of judgment or to remove a nonsuit may be filed.

A per curiam order denied the Motion without prejudice to the parties’ rights to submit arguments on the issue of waiver in their appellate briefs. Although neither party has referred to Rule 1038(d) in the question now presented to this Court, we believe it is appropriate to begin by addressing the issue of appealability.

The requirement of filing exceptions within ten days after notice of filing of a decision in a case, in order to appeal the decision, is part of Rule 1038, which pertains to trial by a judge sitting without a jury. In the case at bar, the lower court’s order granted a demurrer following a submission of an “Agreed Statement of Facts.” A demurrer is ordinarily covered by Rule 1017(b)(4). In its opinion the trial court treated the demurrer as a request for summary judgment, relying on Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). Summary judgment is governed by Rule 1035. As either the grant of a demurrer or summary judgment, the motion is a final order, in that it effectively puts the non-moving party out of court. Gasbarini’s Estate v. Medical Center of Beaver County, Inc., Rochester Division, 487 Pa. 266, 409 A.2d 343 (1979); Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981). The order of the lower court here, sustaining the demurrer, is therefore appealable under 42 Pa.C.S. § 742. No exceptions need be taken and, indeed, absent any testimony by parties or witnesses, or charge by the court, there is nothing in the record to which Whirley could have excepted. We therefore proceed to the merits of the appeal.

While Workers’ Compensation is the exclusive remedy of an employee against his employer for work-related injuries, when an employee-victim’s injuries are the result of negligence by a third party, § 671 of the Workers’ Compensation Act allows the employee to bring an action against that third party. The victim’s employer then has the right of subrogation, so long as he can show that he was compelled to make payments to his employee by reason of the negligence of the third party. Dale Manufacturing Co. v. Workmen’s Compensation Appeal Board, 34 Pa.Commw. 31, 382 A.2d 1256 (1978), aff’d 491 Pa. 493, 421 A.2d 653 (1980), Reargument denied (1980).

The action against the third party tortfeasor must be brought by the injured employee. Our Court has recently held that the Workers’ Compensation insurance carrier has no independent cause of action for indemnification by and contribution from the negligent party who caused the insurance carrier to pay out benefits. The subrogation rights of § 671 are the sole and exclusive remedy against third party tortfeasors, i.e. the employee-victim must sue, and the employer’s carrier is subrogated to the employee’s claim. Reliance Insurance Company v. Richmond Machine Company, Reliance Electric Company, and Bendix Westinghouse, 309 Pa.Super. 430, 455 A.2d 686 (1983). Reliance Insurance did not involve a motor vehicle accident.

Whirley argues that he is suing in trespass because he is excluded from exercising his subrogation right (which would have prevented the increased insurance premiums) by the Pennsylvania Motor Vehicle No Fault Act and recent case law interpreting some of its provisions. § 301 of the No Fault Act abolished tort liability for personal injuries in motor vehicle accidents with certain exceptions. One of these exceptions is that tort liability remains for any loss that exceeds the “basic loss benefits” of § 202(a)(b)(c)(d). However, No Fault § 206 requires that before an employee can recover No Fault benefits, Workers’ Compensation benefits which have been paid must first be deducted. The effect of these No Fault provisions is that the Workers’ Compensation insurer must pay all that he is required to pay as a first step in calculating the net loss of the victim. Tortfeasor liability is abolished except for a net loss which is in excess of the basic loss benefits paid by No Fault. Brunelli v. Farelly Brothers, 266 Pa.Super. 23, 402 A.2d 1058 (1979); Vespaziani v. Insana, 293 Pa.Super. 117, 437 A.2d 1234 (1981) Reargument denied, 1982; Motley v. State Farm Mutual Automobile Insurance Co., 303 Pa.Super. 120, 449 A.2d 607 (1982).

Since our Court decided Brunelli and Vespaziani, our panel cannot challenge the validity of these opinions relating to subrogation rights and claims against third party tortfeasors under Workers Compensation and the No Fault Act. We note that Vespaziani is presently before the Supreme Court. At the time of this appeal, however, employers of victims of motor vehicle accidents are excluded from subrogation rights afforded by § 671 of Workers Compensation by current statutory interpretation of the No Fault Act. Whirley therefore brings this suit against Segal directly, claiming that this is the only way that he can recover the increased costs of his Workers Compensation insurance premiums.

The liability of third party tortfeasors for an employer’s increased insurance costs has been faced once before in the Pennsylvania courts, but not settled. In Canada Dry v. Mertz, 264 Pa.Super. 480, 400 A.2d 186 (1979), employer Canada Dry sued for an increase in Workers’ Compensation premiums incurred because Mertz caused the death of one of Canada Dry’s employees. The lower court found that Mertz was negligent, and that his negligence was a substantial factor in causing the increase in premiums. Our Court upheld Canada Dry’s claim against Mertz. The majority opinion, however, did not reach the question of whether Mertz was liable to Canada Dry because of his negligence, for the parties did not argue this issue on appeal. The majority addressed the two questions which were argued before the Court: (1) whether the insurance carrier had set up too large a reserve and therefore increased Canada Dry’s premiums more than they should have been increased; and (2) whether Canada Dry had failed to avoid or negotiate the increase, which may have been improperly calculated. On both these issues, the Court held for appellee Canada Dry.

Judge Lipez, dissenting in Canada Dry, raised the issue of Mertz’s negligence and consequent liability for insurance costs on his own initiative.

Basing his analysis on the seminal opinion of Chief Judge (later United States Supreme Court Justice) Cardozo in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928), the dissent reasoned that negligence liability can not be predicated upon facts which do not impose a legal duty. This legal duty is one to foresee the likelihood of the happening of an injury due to one’s own actions. Conduct is negligent only if the harm flowing from the conduct could reasonably have been foreseen and prevented. Quoting Judge Cardozo’s well-known statement, “[T]he orbit of danger as disclosed to the eye of reasonable vigilance would be the orbit of duty ... The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension,” Canada Dry, 264 Pa.Superior at 492, 400 A.2d at 192, Judge Lipez concluded that the risk of increased insurance premiums was an eventuality not reasonably foreseeable. There was no duty on the part of the driver to foresee the harm of the insurance cost rise, and since there was no duty to foresee it, he argued, the driver could not be held liable for it.

In the instant case we face an argument by Whirley that Segal’s negligence was the direct and proximate cause of his increased premiums, which Whirley, as an innocent party, has had to bear. Viewed from the eyes of Whirley, the damages are not at all remote. They are immediate and acute. One effect of the holding in Brunelli has been to impose on employers the primary obligation for financial support to employees who are severely injured in motor vehicle accidents. Segal maintains that the law does not impose an obligation to guard against remote possibilities in life, and that when a pedestrian is injured by a driver’s negligence, the orbit of duty owed by the driver does not encompass the business losses of the pedestrian’s corporate employer.

We are convinced of the merits of Segal’s argument. As Judge Lipez pointed out in Canada Dry, an increase in an employer’s Workmen’s Compensation premiums following an automobile accident is not reasonably foreseeable by a driver. Moreover, insurance premium increases result from a concurrence of circumstances, including the owner’s prior loss experience and the internal financial practices of the particular insurance carrier. The economic harm is too remote from the cause in fact to be attributable to the driver. For these reasons, we believe Segal’s demurrer was correctly sustained.

In this resolution of Whirley’s appeal we do not reach the question of whether the law, so applied, effects an injustice to employers whose business is conducted on the highways of the Commonwealth, and for whom a substantial segment of the work force is engaged in the operation of motor vehicles. The present interpretation of the statutes operates to deprive such employers of the right to recoup all or part of the losses that are incurred by third party negligence. Since such employers are denied rights of subrogation set forth in Worker’s Compensation § 671 (a right to which employers in general are legally entitled) it may be that a serious inequality has been imposed on one group of employers, without giving them an adequate substitute.

The legislature should consider whether the combined effect of the two Acts discriminates against one classification of employers in a way that was not originally intended, and which may not be justified by any rational relationship to a legitimate state interest. Since Whirley is not such an employer, we are not influenced by these considerations in the disposition of the instant ease.

The order of the lower court is affirmed.

MONTEMURO and POPOVICH, JJ., concur in the result.

        . Formerly Workmen’s Compensation Act, 77 P.S. 1 et seq.

        . 40 Pa.C.S. 1009.101 et seq.

      . Appeal of Transport Insurance Co. Allocatur Granted. 33 W.D. Appeal Docket 1982.

      . The statutory scheme of risks, rates, and related matters is set out in the Insurance Company Law, 40 P.S. § 814, which provides for review of rates by the Insurance Commissioner. See Pennsylvania State Association of Township Supervisors v. Commonwealth Insurance Department, 50 Pa.Commw. 204, 412 A.2d 675 (1980); Nagle v. Pennsylvania Insurance Department, 46 Pa.Commw. 621, 406 A.2d 1229 (1979).

      . The constitutionality of § 301(a) of the No Fault Act withstood a challenge on Equal Protection grounds in Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975), Rehearing denied 1975. The opinion did not command a clear majority (two justices concurred, one justice concurred in the result, and three justices dissented). The Supreme Court held that distinctions between different classifications of victims in § 301(a) did not violate Equal Protection, but the Court did not reach the question of subrogation rights of employers of victims.


author: CERCONE, President Judge:

text:
    462 A.2d 804
    COMMONWEALTH of Pennsylvania v. Robert A. SMILLIE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1982.
    Filed July 8, 1983.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Frank J. Scutella, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before CERCONE, P.J., WIEAND and BECK, JJ.
   CERCONE, President Judge:

Appellant Robert Smillie takes this direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Erie County on September 3, 1981 following his entry of guilty pleas to charges of burglary and retail theft. On appeal, he raises two issues for our resolution. First, appellant contends that the sentencing court did not adequately discharge its sentencing responsibilities as they are set forth in the Sentencing Code, Pa.R.Crim.P. 1405(b) and supporting caselaw. Concurrently appellant charges that sentencing counsel was ineffective in failing to include, as a reason in support of his Motion for Reduction of Sentence, the failure of the sentencing court to state of record the reasons for the sentence imposed. Second, appellant maintains that counsel rendered ineffective assistance as a consequence of his failure (a) to specifically object to the contents of the pre-sentence report; (b) to provide appellant with a summary of the contents of the pre-sentence report, thus depriving appellant of the meaningful exercise of his right to allocution as guaranteed by Pa.R. Crim.P. 1405(a); and (c) to assemble witnesses capable of testifying with respect to appellant’s character and drug dependence. Discerning no merit in these claims, we affirm.

There is no doubt but that “[sentencing is a matter within the sound discretion of the sentencing judge, to be exercised within the statutory guidelines and considerations. When so exercised, the sentence will not be disturbed by an appellate court unless it is so clearly excessive as to constitute an abuse of discretion.” Commonwealth v. Hollerbush, 298 Pa.Superior Ct. 397, 406-07, 444 A.2d 1235, 1240 (1982). In the case at bar, appellant argues not that the sentence imposed was excessive but rather that the sentencing court neglected to fulfill its obligation to place on the record the reasons supporting the sentence.

In his recent opinion in Commonwealth v. Edwards, 303 Pa.Superior Ct. 454, 450 A.2d 15 (1982), Judge Spaeth characterized the responsibilities of the sentencing judge as two-fold:

The first responsibility is a fact-finding responsibility: the judge must be sure he has enough information. The second responsibility is an application—and—explanation responsibility: the judge must apply to the information he has gathered the guidelines specified in the Sentencing Code, 42 Pa.C.S. § 9701 et seq., and explain how the sentence he has selected is responsive to, and reflects the standards embodied in, those guidelines. If the judge fails to fulfill these responsibilities, we must vacate the sentence and remand for resentencing. Id., 303 Pa.Superior at 472, 450 A.2d at 23-24.

The policy underlying the requirement that the sentencing judge state of record the reasons for the sentence is found in the desirability of making public the actual thought process leading to the imposition of a particular sentence. Commonwealth v. O’Brien, 282 Pa.Superior Ct. 193, 422 A.2d 894 (1980). This directive cloaks appellate courts with the means of comprehending and reviewing the actions of the sentencing court while, at the same time, discourages arbitrary sentencing and the entertainment of improper or irrelevant factors. Commonwealth v. Kraft, 294 Pa.Superior Ct. 599, 440 A.2d 627 (1982).

Our courts have never required that the sentencing court’s statement of reasons cite to specific language of the Sentencing Code. Commonwealth v. Wicks, supra. Instead, it should evince the court’s reflection on the standards delineated in the Code and should offer “some explanation of how consideration of those guidelines affected the determination of sentence.” Commonwealth v. Wareham, 259 Pa.Superior Ct. 527, 534, 393 A.2d 951, 954 (1978).

Our review of the sentencing proceedings leads us to conclude that the statement of reasons advanced by the lower court at the passing of sentence complies fully with the requirements of the Sentencing Code and the holding of Commonwealth v. Riggins, supra. The sentencing court enjoyed the benefit of a presentence report and the extensive remarks of attorneys for both the Commonwealth and the defense. In passing sentence, the lower court apparently accorded great weight to the fact that at the relatively young age of thirty years, appellant had experienced numerous encounters with the penal system during a period which in length approaches twenty years. Moreover, the court observed that from the facts presented in the pre-sentence report and the remarks of counsel, appellant’s brushes with law enforcement authorities are traceable, ultimately, to his persistent abuse of drugs. The court noted further that appellant appeared incapable of resolving his drug problems himself and that, as a result, the interests of society as a whole mandated his incarceration. We believe that the sentencing court adequately explained its sentence and thus we perceive no merit in appellant’s assertions to the contrary.

We also dismiss as unsound appellant’s charge that he was denied, for various reasons, the effective assistance of counsel during sentencing proceedings. Our review of the record persuades us that the sentencing proceedings in the case at bar fully conform to the requirements of Pa.R. Criiii.P. 1404 and the American Bar Association Standards Relating to Sentencing Alternatives and Procedures, adopted by our Supreme Court in Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973). The record discloses, and appellant himself concedes, that sentencing counsel was afforded complete access to the contents of the pre-sentence report. Pa.R.Crim.P. 1404 does not require that a defendant be permitted to examine personally the report for inaccuracies. Commonwealth v. Kessinger, 295 Pa.Superior Ct. 258, 441 A.2d 758 (1982). Although appellant now complains that sentencing counsel did not object to the pre-sentence report, and did not fully inform him of the contents of the report, he does not specify in what respect the report was prejudicial or in what manner counsel’s description of it was inadequate. In rejecting a similar claim in Commonwealth v. Smith, 250 Pa.Superior Ct. 537, 378 A.2d 1278 (1977), we stated:

... Rule 1404(a)(2) permits appellate counsel to see the report; he is, after all, “counsel for the defendant.” Consequently, if appellate counsel wishes to argue before us that counsel at the sentencing hearing was ineffective for failing to dispute a presentence report, he must examine the report and then set out in his brief in what respect he contends the report prejudiced his client.

Id., 250 Pa.Superior at 543, 378 A.2d 1282.

Similarly, we reject appellant’s assertion that he was denied the effective exercise of his right to allocution provided by Pa.R.Crim.P. 1405(a). The record reflects that appellant’s sentencing counsel delivered a lengthy statement to the sentencing court prior to its passing of sentence in which he highlighted appellant’s past criminal record, his history of drug abuse, appellant’s apparent need for some type of drug rehabilitation treatment, and the fact that appellant had cooperated with the district attorney’s office during its prosecution of the case. Appellant himself then brought to the court’s attention the fact that he enjoys a good relationship with his parole officer, and that his recent marriage has had a positive effect on his life. Thus, it appears that appellant did in fact exercise his allocution rights, despite his current protestation that such exercise was futile. Again, appellant fails to demonstrate what additional matters he would have raised for the court’s consideration during allocution had he been more completely informed as to the contents of the pre-sentence report.

Finally, we reject appellant’s assertion that sentencing counsel was ineffective in failing to gather and present witnesses who would testify on appellant’s behalf at the sentencing hearing. Appellant contends that he furnished counsel with the names of individuals who would testify as to his character and drug dependence. The record demonstrates, however, that sentencing counsel covered these very subjects in his statement to the court. In the absence of any proof that the testimony of these witnesses would yield more than more cumulative evidence as to matters which were adequately placed before the sentencing court, we are unwilling to regard sentencing counsel as ineffective for declining to present such testimony. “A finding of ineffectiveness can never be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.” Commonwealth v. Stokes, 294 Pa.Superior Ct. 529, 542, 440 A.2d 591, 598 (1982), citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3502.

      . Id. at § 3929.

      . 42 Pa.C.S.A. § 9701 et seq.

      . Sentencing counsel did not preserve this issue for our review by raising it in his Motion for Reduction of Sentence. See Pa.R.Crim.P. 1410; Commonwealth v. Boyce, 304 Pa.Superior Ct. 27, 450 A.2d 83 (1982); Commonwealth v. Ruschel, 280 Pa.Superior Ct. 187, 421 A.2d 468 (1980). However, we do not regard the matter as waived since it now appears before us in the context of a claim of ineffectiveness of counsel, and is being asserted at the first opportunity by new counsel retained for purposes of this appeal. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Marshall, 273 Pa.Superior Ct. 370, 417 A.2d 694 (1980).

      . See also Commonwealth v. Walker, 298 Pa.Superior Ct. 387, 444 A.2d 1228 (1982); Commonwealth v. Landi, 280 Pa.Superior Ct. 134, 421 A.2d 442 (1980); Commonwealth v. Kostka, 276 Pa.Superior Ct. 494, 419 A.2d 566 (1980); and Commonwealth v. Kaminski, 244 Pa.Superior Ct. 388, 368 A.2d 776 (1976).

      . 42 Pa.C.S.A. § 9721 affords this guidance to a sentencing judge:
      (a) General rule.—In determining the sentence to be imposed the court shall, except where a mandatory minimum sentence is otherwise provided by law, consider and select one or more of the following alternatives, and may impose them consecutively or concurrently:
      (1) An order of probation.
      (2) A determination of guilt without further penalty.
      (3) Partial confinement.
      (4) Total confinement.
      (5) A fine.

        (b) General standards.—In selecting from the alternatives set forth in subsection (1) the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing and taking effect pursuant to section 2155 (relating to publication of guidelines for sentencing.) In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed, (emphasis added).

        See also Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); and Commonwealth v. Wicks, 265 Pa.Superior Ct. 305, 401 A.2d 1223 (1979).

      . Because we conclude that appellant’s argument is meritless, we also reject as untenable appellant’s correlative assertion that sentencing counsel was ineffective in failing to include this contention in his Motion for Reduction of Sentence, since we cannot regard counsel as ineffective for declining to pursue what would prove to be a baseless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

      . Appellant phrases his argument as follows:
      Trial counsel provided ineffective assistance where there was a failure to specifically object to the pre-sentence report, failure to provide a report of the content to the appellant so that he might knowingly and effectively exercise his rights to allocution pursuant to Pennsylvania Rule of Criminal Procedure 1405, and failure to assemble witnesses as to the defendant’s character and drug dependence.

      . At the time of sentencing, the Rule read, in relevant part: Disclosure of reports
      (a) All psychiatric and pre-sentence reports shall be confidential records. They shall be available only to:
      (1) the sentencing judge;
      (2) the attorney for the Commonwealth and counsel for the defendant for inspection, only, on conditions stated by the sentencing judge----
      (b) The sentencing judge may impose conditions of confidentiality consistent with this Rule.
      COMMENT: The policy on disclosure contained in this Rule is intended to prevent injustices which may arise when inaccurate information in psychiatric and pre-sentence reports is submitted to the judge unchallenged. However, the Rule is not intended to encourage formal litigation over these reports but, on the contrary, is intended to prevent such a development by affording counsel for both parties an opportunity to point out any such inaccuracies before the judge pronounces sentence. Although the appellate courts have never conclusively decided whether a defendant is entitled to see these reports as a constitutional right, the Supreme Court of Pennsylvania has recently concluded that in its supervisory powers it would direct disclosure of portions not secured on a confidential basis. Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973). Paragraph (a)(2) permits the sentencing judge to impose conditions on counsel. This permits the judge to preserve the confidentiality of sources of information when deemed necessary. It also permits the judge in the proper exercise of his discretion to withhold portions of the report from counsel or to require counsel not to disclose portions to defendant, when the latter’s mental or physical well-being may be jeopardized thereby.
      Rule 1404, Pa.R.Crim.P. (emphasis added).

      . These Standards provide:

        Prcsentence report: disclosure parties.
      (a) Fundamental fairness to the defendant requires that the substance of all derogatory information which adversely affects his interests and which has not otherwise been disclosed in open court should be called to the attention of the defendant, his attorney, and others who are acting on his behalf.
      (b) This principal should be implemented by requiring that the sentence court permit the defendant’s attorney, or the defendant himself if he has no attorney, to inspect the report. The prosecution should also be shown the report if it is shown to the defense. In extraordinary cases, the court should be permitted to except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which has been obtained on a promise of confidentiality. In all cases where parts of the report are not disclosed under such authority, the court should be required to state for the record the reasons for its action and to inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure should be subject to appellate review.
      ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures § 4.4 (Approved Draft, 1968) (emphasis added).


author: SPAETH, Judge:

text:
    462 A.2d 809
    James DICKSON, Appellant, v. Ronald WAGNER.
    Superior Court of Pennsylvania.
    Argued April 5, 1983.
    Filed July 8, 1983.
    Petition for Allowance of Appeal Denied Nov. 8, 1983.

      Allen L. Feingold, Philadelphia, for appellant.
    Glenn David Hains, Morrisville, for appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from a judgment in a trespass action. Appellant, who was plaintiff below, argues, among other issues, that the trial judge’s charge to the jury was confusing. We agree and reverse.

In beginning his charge, the trial judge said:

In this case the Defendant admitted his negligence and has admitted that that negligence was the cause of this accident. And, therefore, the liability for the accident is admitted by the Defendant. As it appears to the Court, the issue is whether the Defendant’s negligence as admitted, and as admitted having caused the accident, was a substantial factor in bringing about the injuries complained of by the Plaintiff. That seems to the Court to be the issue you have to deal with, and then whether and to what extent and amount the Plaintiff is entitled to damages from the Defendant on account of the injuries received.
Ñ.T. 1012.

Later the judge said:

If you find that the Defendant is liable to the Plaintiff, you must then find an amount of money damages which you believe will fairly and adequately compensate the Plaintiff for all the physical and financial injury he has sustained as a result of the accident.
N.T. 1018.
If you find the Defendant is liable, then you look to these damages.
N.T. 1019.
If you find the Defendant liable, the Plaintiff is entitled to be compensated____
Id.

When appellant’s counsel excepted to the charge, the judge said:

So there may be no confusion about it, the Defendant has admitted liability for this accident. And, therefore, that is not at issue for you to consider in the case.
N.T. 1034-35.

The judge went on to say:

But if you find that the negligence of the Defendant was the legal cause of this accident, and if you find that the Plaintiff’s injuries as complained of resulted from that accident, then you would move to the question of what the damages ought to be and analyze the whole damage issue as I’ve indicated.
N.T. 1034-35.

When appellant’s counsel again excepted to the charge, the judge said:

If you find that the Defendant legally caused this accident and that the Plaintiff was injured as a result of this accident, then you go on to the question of damages. If you find the Plaintiff has borne that burden of proof, you go on to the damages.
The Plaintiff does not have to prove the liability for the accident. That’s admitted. It’s only after that point that we get into the disputed issue.
N.T. 1037.

Since appellee, the defendant, had admitted liability, it was error for the trial judge to charge: “If you find the Defendant liable ...,” and “If you find the Defendant legally caused the accident____” The judge should have explained that liability was admitted, and that therefore the only issue for the jury to decide was what damages, if any, should be awarded.

Although the trial judge may cure an incorrect instruction, he must explicitly tell the jury to disregard the incorrect instruction. Johns v. Township of Shaler, 240 Pa.Super. 129, 368 A.2d 339 (1976). As the Supreme Court explained in Hisak v. Lehigh Valley Transit Company, 360 Pa. 1, 59 A.2d 900 (1948):

Where an erroneous instruction consists of a palpable misstatement of the law, it is not cured by a conflicting or contradictory one which correctly states the law on the point involved, for the jury, assuming, as is their duty, that the instructions are all correct, may as readily have followed the incorrect as the correct one, and it is impossible to know which they accepted
Id., 360 Pa. at 6, 59 A.2d at 903 (citations omitted).

Here, the trial judge attempted to correct the error, but he did not tell the jury to disregard the incorrect instruction. Instead, after correcting the error (“[T]he Defendant has admitted liability____ [TJherefore, that is not at issue ____”), the judge again gave an incorrect instruction (“[I]f you find that the negligence of the Defendant was the legal cause____”). The jury must have been confused. A new trial is therefore required. Takach v. B.M. Root Co., 279 Pa.Super. 167, 420 A.2d 1084 (1980).

The judgment is reversed and the case is remanded for a new trial limited to damages.

      . We need not address the other issues raised by appellant.


text:
    462 A.2d 811
    The BOROUGH OF ELIZABETH, a Pennsylvania Municipal Corporation v. AIM SHER CORPORATION, a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1983.
    Filed July 8, 1983.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.

      Eugene J. Julian, Washington, for appellant.
    Jay Harris Feldstein, Pittsburgh, for appellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   SPAETH, Judge:

This is an appeal from a decree declaring appellee to be the owner in fee simple of a tract of land. We affirm.

On March 20, 1956, Elsa and Henry Cooling conveyed a tract of land on the east bank of the Monongahela River in the Borough of Elizabeth, Allegheny County, to James F. Hosmer. Hosmer died on December 14, 1961, leaving a will giving all his property to his widow, Eleanor Mae Hosmer. On February 17, 1976, Mrs. Hosmer offered to deed the Monongahela River tract to appellee, the Borough of Elizabeth, in satisfaction of her liability for past property taxes.

While appellee investigated whether the County and School District would excuse Mrs. Hosmer’s tax liability, one Edward J. Toth offered to buy the tract. On March 14, 1977, in exchange for $150.00 Mrs. Hosmer executed a deed prepared by Mr. Toth, conveying the tract to appellant, Aim-Sher Corporation. Appellant’s articles of incorporation had not been filed, and were not filed until April 24, 1978.

Sometime during 1980—the date is not clear from the record—appellee advised Mrs. Hosmer of its willingness to excuse her tax liability, and on September 2, 1980, she executed a second deed, conveying the Monongahela River tract to appellee for “the purpose ... [of] mak[ing] a gift of the ... premises to the Borough of Elizabeth.” After this conveyance, appellant advised appellee that it claimed the tract under Mrs. Hosmer’s first deed. Appellee then brought this declaratory judgment action seeking a determination of which party holds title to the tract. The lower court ruled in appellee’s favor.

-1-

Appellant argues that James F. Hosmer’s will giving all his property to Eleanor Mae Hosmer was ineffective to convey the Monongahela River tract. This argument lacks merit. 20 Pa.C.S. § 301(b) (1975).

-2-

Appellant also argues that the lower court erred in concluding that appellee was a subsequent bona fide purchaser without actual or constructive notice of Mrs. Hosmer’s prior deed to appellant. We do not find it necessary to reach the merits of this argument.

The lower court found that appellant did not exist at the time Mrs. Hosmer executed her first deed, purporting to convey the tract to appellant. Slip op. Mar. 2, 1982, at 15. Appellant does not challenge this finding, but we note that it is in any case supported by the record. Appellant did not come into formal existence until its articles of incorporation were filed on April 24, 1978, more than one year after Mrs. Hosmer’s deed to appellant. N.T. 100-101. See 15 P.S. § 1207 (1967). Nothing in the record suggests that appellant enjoyed de facto existence before the commencement of its formal existence. See generally Appeal of Riviera Country Club, 196 Pa.Super. 636, 176 A.2d 704 (1962). A deed that purports to convey real estate to a nonexistent corporation has no effect. Africa v. Trexler, 232 Pa. 493, 81 A. 707 (1911); Burns v. McCabe, 72 Pa. 309 (1873); McCabe v. Burns, 66 Pa. 356 (1870). Mrs. Hosmer’s deed to appellant was therefore invalid. It follows that appellee’s claim to the Monongahela River tract is superior to that of appellant, without regard to whether appellee was a bona fide purchaser.

Affirmed.

      . In its "Statement of the Questions Involved” appellant advances six arguments that are, in substance, different ways of arguing that the lower court incorrectly characterized appellee as a bona fide purchaser.

      . We thus have no occasion to consider whether a de facto corporation is capable of receiving a conveyance of realty.


author: HESTER, Judge: POPOVICH, Judge,

text:
    462 A.2d 813
    COMMONWEALTH of Pennsylvania v. James WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 27, 1982.
    Filed July 8, 1983.
    Petition for Allowance of Appeal Denied Oct. 18, 1983.

      Thomas L. McGill, Jr., Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

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

This is an appeal from a judgment of sentence imposed on appellant for his convictions of aggravated assault, possessing an instrument of crime, carrying a firearm in a public street, and recklessly endangering another person. Appellant challenges the legality of his arrest and also asserts that the trial judge erred in denying his motion for a mistrial or cautionary instructions following the prosecutor’s closing arguments. After closely scrutinizing appellant’s arguments, we conclude that the record is free from error in all respects. Accordingly, we affirm the judgment of sentence.

The facts leading to the prosecution of appellant are as follows. On October 31, 1978, at approximately 2:30 p.m., James Hampton was shot in the head in North Philadelphia. Eye witnesses informed the investigating officers that the perpetrator was an individual known as “Country”. One of the detectives, David Kaisinger, knew appellant went by the aforementioned nickname. At approximately 8:10 that evening, an eyewitness was shown an array of photographs which included appellant’s picture, and identified appellant as the one who committed the assault.

Detective Edward Gallagher, who conducted the identification procedure, returned to the scene of the shooting at approximately 8:30 p.m. There he was advised by Officer Johnson of a tip by an unidentified informant to the effect that appellant was in a second floor bedroom at 1920 North Napa Street, was armed, and that he was going to leave town that night. Detective Gallagher called for a stake-out team. Upon their arrival, the police immediately proceeded to the Napa Street address where they entered an unlocked door, proceeded to the second floor, and apprehended appellant at 9:15 p.m. Subsequent to his arrest, appellant volunteered a statement to the authorities.

After a hearing on November 1, 1979, appellant’s, motion to suppress both his statement and the weapon seized at the time of his arrest was denied. Following a trial by jury, appellant was convicted of the aforementioned charges and sentenced to ten (10) to twenty (20) years imprisonment. This appeal was thereafter perfected.

The first issue which appellant raises is an assignment of error by the trial judge in denying appellant’s application to suppress his statement and physical evidence. Appellant complains that the police officer’s entry into the Napa Street residence without a warrant constitutes an unreasonable search and seizure which is repugnant to the Fourth Amendment, and which fails to comport with the tests embodied in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Moreover, appellant contends that the warrantless entry and his arrest by the police could not be justified on the grounds of exigent circumstances.

Appellant relies upon the Pennsylvania Supreme Court decision of Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980), which held that an arrest warrant was required to effectuate a valid arrest inside the arrestee’s home absent exigent circumstances. Those considerations which have been recognized as exigent circumstances include: 1) the gravity of the offense; 2) a reasonable belief that the suspect is armed; 3) a clear showing of probable cause; 4) a reasonable belief that the suspect is within the premises sought to be entered; 5) a likelihood that the suspect will escape; 6) the time of entry; and 7) whether the entry was peaceful. Commonwealth v. Williams, supra 483 Pa. at 298-9, 396 A.2d at 1179, quoting Dorman v. United States, 140 U.S.App.D.C. 313, 320, 435 F.2d 385, 392-3 (1970).

Appellant argues, in essence, that the police had neither a warrant nor a reasonable belief that the suspect was within the premises or that he would attempt to escape. Rather, the police relied upon information provided to Officer Johnson by an informant with no outward indicia of reliability. Therefore, appellant concludes that the police lacked sufficient exigent circumstances to vitiate the need for a warrant.

Appellant’s interpretation of the Williams’ warrant requirement is correct; appellant’s argument falters in two regards. First, the Williams case is inapplicable to the case at bar. That decision was rendered on November 18, 1978, and held to be prospective only in Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980). Appellant was arrested on October 31, 1978. Consequently, Williams is not dispositive of this issue. Instead, we must look to the state of the law prior to November 18, 1978, to determine if warrantless arrests inside a residence were legal.

In Commonwealth v. Norris, 498 Pa. 308, 312 n. 1, 446 A.2d 246, 248 n. 1 (1982), the Supreme Court observed:

“Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978) cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980) which established a warrant requirement for arrests in the home in this Commonwealth has held to apply only to arrests occurring after November 18, 1978, when it was handed down. Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981). Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) announced the same warrant requirement under federal law prospectively. Appellant was arrested May 29, 1976. At that time, the requirement for a warrantless arrest in the home was a showing of probable cause.”

The Commonwealth therefore was only required to prove probable cause. See also Commonwealth v. Eliff, 300 Pa.Super. 423, 446 A.2d 927 (1982). That is not to say that all pre-William entries into homes to effectuate arrests were valid. Such entries prior to the Williams case still had to be either preceded by the Fourth Amendment requirement that police “knock and announce” their identity and purpose or excused due to exigent circumstances. However, these exigencies which justify non-compliance with the knock and announce rule are not entirely coextensive with those exigencies which validate a warrantless arrest. See Commonwealth v. Norris, supra 498 Pa. at 313 n. 2, 446 A.2d at 248 n. 2. In addition to those exigencies mentioned above, the following circumstances may excuse a lack of knock and announcement: 1) a good faith belief by the officers that they or someone are in peril of bodily harm; 2) a reasonable belief by the officers that the suspect might resist arrest or is attempting to escape; 3) some indication that evidence is being destroyed; and 4) a justified belief that the suspect already knows their purpose so as to render any announcement superfluous. Id., 498 Pa. at 312-314, 446 A.2d at 248-249, and numerous cases cited therein.

In the instant case, the nature of the offense for which appellant was being sought was very grave and, since the assault was committed with a gun, the police were more than reasonable in believing that appellant was armed. The police without question had sufficient probable cause to arrest appellant. As to whether the police had a reasonable belief that the suspect was within the Napa Street residence and was preparing to flee, appellant argues that the Commonwealth failed to prove compliance with the Aguilar-Spinelli test. See Aguilar v. Texas, supra; Spinelli v. United States, supra. However, appellant misapprehends the purpose of this test. The criteria established by those cases determine the constitutionality of an arrest based in some way upon information from any unidentified informant. In the case at bar, probable cause for the arrest rested upon the identification of appellant as confirmed by several eyewitnesses. Consequently, the basis for the arrest was in no way dependent upon hearsay information.

Concededly, the police relied upon an informant for the tip as to where appellant was hiding and that he intended to flee. However, all that was required was a reasonable belief on their part that the suspect was within the Napa Street address. Commonwealth v. Williams, supra. Appellant was already identified as the suspect in this case and it was obvious that police were actively searching for him. Therefore, when someone informed the police as to appellant’s whereabouts, it was clearly reasonable for them to act according to that tip.

We also hold that the police were excused from knocking and announcing their identity and purpose. As we stated above, a violation of the knock and announce rule does not per se warrant a grant of relief if exigent circumstances justified non-compliance. Herein, the police entertained a reasonable belief that appellant was armed, since the offense had been committed with a firearm a mere six hours earlier and no weapon was found at the scene, and a concomitant belief that they were in peril of bodily harm. Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1967). Furthermore, they had received a tip that appellant planned to escape from the vicinity some time that evening. Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968).

Finally, the duty of the police to knock and announce was obviated by their belief that appellant was aware of their purpose. In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the Supreme Court of the United States held that the defendant’s furtive conduct in eluding police shortly prior to his arrest served as a sufficient basis for the police officers’ belief that he was expecting them. Thus, the officers’ failure to knock and announce their identity and purpose was excused. Similarly, appellant’s conduct immediately after the commission of the crime in the case at bar can only lead to the conclusion that he knew the police were actively searching for him. Appellant, after committing an assault in front of eyewitnesses who knew him, left the scene and attempted to escape the police by seeking sanctuary in the Napa Street address. As the police approached this residence, someone opened the door, observed the police, and immediately retreated back into the building. The cumulative effect of these facts upon the police was to create a virtual certainty that appellant knew their purpose and that any such announcement would be “a useless gesture.” Miller v. United States, 357 U.S. 301, 310, 78 S.Ct. 1190, 1196, 2 L.Ed.2d 1332 (1958).

Although the record is unclear as to whether the door was ajar or closed when the police entered, it is clearly irrelevant in light of our holding that the obligation of the police to comply with the knock and announce rule was vitiated by the above facts. For the foregoing reasons, the entry of the police and their subsequent apprehension of appellant were well within the safeguards embodied in the Fourth Amendment.

As we stated previously, appellant’s argument that the police conducted an illegal search and seizure falters in two aspects. Regardless of the above analysis that the search was valid, there is yet another ground for rejecting appellant’s contention. The Williams case concerns a search and seizure conducted in a suspect’s own home. Herein, appellant was not in his home; testimony at trial revealed that the owner and occupant at 1920 North Napa Street was Christina Lewis.

Recently, the Supreme Court of the United States had occasion to rule upon the need for police to obtain a search warrant to enter premises belonging to a third party in order to effectuate an arrest. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). Therein, the Supreme Court recognized that the purpose of such a requirement is to protect the third party’s legitimate expectation of privacy in his home.

In Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982), a similar factual situation arose where appellant was arrested inside another’s home. Our Supreme Court observed:

“Fourth Amendment claims involve the accused’s ‘legitimate expectation of privacy’ in the areas searched. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979). If an arrest warrant and ‘reason to believe’ that a suspect can be found on the premises are sufficient for police to invade a suspect’s own home, then these facts are sufficient to invade a third party’s premises, where a suspect’s expectation of privacy is necessarily less.”

Id., 498 Pa. at 333-334, 446 A.2d at 587. The Supreme Court thus held that no more strigent requirement was necessary. We too hold that the police were acting properly in the instant case and that no relief is warranted by appellant’s attempts to object to a third party’s invasion of privacy.

Appellant’s second assignment of error concerns the prosecution’s closing argument. He asserts that the prosecutor utilized tactics which were purposely designed to inflame the passions and prejudices of the jury. However, in search of support for this argument, appellant misquotes the assistant district attorney on three different occasions.

Having viewed the actual transcript of the prosecutor’s closing argument in the context of the case as a whole, we find that his summary constituted a “disinterested, impartial and fair assessment of the testimony ... presented.” Commonwealth v. Raffensberger, 291 Pa.Super. 193, 196, 435 A.2d 864, 865 (1981), quoting Commonwealth v. Harvell, 458 Pa. 406, 411, 327 A.2d 27, 30 (1974). The language of the prosecutor in no way served to prejudice the jury so as to form in their minds a fixed bias and hostility toward appellant. Commonwealth v. Hoffman, 439 Pa. 348, 355, 266 A.2d 726, 730 (1970). Consequently, appellant’s contention has no merit.

Judgment of sentence affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

The majority holds that a tip from an unidentified informant indicating a criminal suspect’s whereabouts is sufficient to allow police officers to enter the home of a third party to effectuate an arrest without first knocking and announcing their presence. Because this holding disregards the Fourth Amendment’s guarantee against unreasonable searches and seizures, I must dissent.

In Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982), our Supreme Court was faced with the issue of whether a defendant’s Fourth Amendment rights are violated when police enter a third party’s apartment to effectuate an arrest and, in so doing, seize a revolver belonging to the defendant.

The facts of Stanley were stated by the Court as follows:

“On October 1, 1975, while incarcerated following a murder conviction for the shooting death of one Timothy Shinn, appellant escaped from the Philadelphia General Hospital Detention Unit. When police discovered appellant was gone, they broadcast an hourly ‘wanted’ message over the police radio, informed the State Crime Information Center, and widely disseminated appellant’s ‘mug shot’.. An arrest warrant was issued the next day.
While appellant was at large, Carmen Sperduto observed appellant with Jacqueline Keim. Ms. Keim told Mr. Sperduto that appellant was a fugitive and was staying at her apartment on West Roosevelt Boulevard in Philadelphia. (Appellant was heard to say that ‘he needed a place to hole up ... until things got cooled off.’) Mr. Sperduto also observed appellant drop and retrieve a small caliber revolver. On October 3, after seeing appellant’s picture in the paper, Mr. Sperduto called the police and stated that he ‘might know’ appellant’s whereabouts.
About an hour later, Mr. Sperduto conducted the police to Ms. Keim’s apartment. The police called for reinforcements, but no search warrant was obtained. When reinforcements arrived, an officer knocked and announced ‘Police’. Thirty to sixty seconds elapsed with no response. The police then forced open the door and proceeded through the living room and dining room. In a small back bedroom, the police observed what they first thought to be a bundle of clothing beneath a small portable crib. Upon closer examination, the police discerned the figure of a man (appellant) and apprehended the appellant. Simultaneously, the police seized a fully loaded revolver from the top of a small bureau next to the crib, within appellant’s reach.”

Stanley, supra, 498 Pa. at 331, 332, 446 A.2d at 585, 586. In affirming judgment of sentence, this Court held that because the police entered the third party’s apartment not to search the premises but to make an arrest, Stanley did not have standing to attack the lawfulness of the entry to arrest him. Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979). The Supreme Court chose not to dispose of the issue on the basis of standing and, instead, ruled that the entry was legal. The high Court held that an arrest warrant and “reason to believe” that the subject was in the third party’s home were all that was necessary to enter. The Court also held, however, that absent exigent circumstances, police must announce both their authority and purpose before forcible entry. The Court found that the information supplied by Mr. Sperduto, who led officers to the apartment in which Stanley was hiding, supplied police with sufficient reason to believe that the fugitive was in the apartment. The officers knocked and announced “Police”, but failed to announce their purpose. But, because there was no response for up to sixty seconds, and because the suspect was reported to be armed and dangerous, the Court held that by announcing their identity and waiting, the police did more than was required by the Fourth Amendment and were,.therefore, excused from announcing their purpose. Commonwealth v. Stanley, 498 Pa. 326, 333, 334, 446 A.2d 583, 587.

Although the police in the instant case were not armed with an arrest warrant, I agree with the opinion of the majority that the eye-witness identification of appellant only 20 minutes prior to receiving a tip as to appellant’s whereabouts provided probable cause for the arrest and obviated the need for an arrest warrant. However, the fact that police had probable cause to arrest appellant does not excuse the procedures used to effectuate that arrest. Although the majority is correct in citing Stanley, supra, for the proposition that one’s expectation of privacy is not as high in a third party’s home as it is in one’s own home, Stanley does not hold that an armed suspect in a third party’s home has absolutely no expectation of privacy.

Detective Gallagher’s testimony from the suppression hearing describes the events leading up to the arrest. Detective Gallagher learned from another police officer, who did not testify, that an informant had seen appellant in this residence, that he was armed, and that he was going to leave town that evening. (N.T. November 1, 1979, pp. 25, 26). At that point, Detective Gallagher waited for a stakeout team and then proceeded up the street towards the residence. When they were about ten houses away, someone thrust his head out of the door of the residence and then quickly went back inside the house. At least four officers, including Detective Gallagher, walked inside. (N.T. November 1, 1979, pp. 28, 40). Detective Gallagher testified that he did not hear the officers who preceded him through the door knock or announce that they were police. (N.T. November 1, 1979, p. 39).

Of the exigent circumstances listed by the majority in excusing the failure of the police to knock and announce, only one, that appellant was armed, can be attributed to circumstances other than the information obtained from the unidentified informant. Although the record indicates that someone looked out of the door of the residence when the police were ten houses away, the majority’s conclusion that this person observed the police before ducking back inside is not supported by the testimony presented at the suppression hearing. (See N.T. November 1, 1979, pp. 28, 37). The majority also concludes that appellant engaged in furtive conduct similar to that which existed in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), where police officers were excused from demanding admittance and explaining their purpose because, in addition to the officers’ belief that narcotics on the premises could be quickly and easily destroyed, the defendant had, immediately after purchasing narcotics earlier that evening, eluded police who were following him in a car by making a U-turn in the middle of a block. Here, appellant’s furtive conduct consisted only of leaving the scene of the crime and seeking refuge in the Napa Street residence. No evidence of a chase or otherwise eluding police was presented.

In Commonwealth v. Riccardi, 220 Pa.Super. 72, 283 A.2d 719 (1971), we stated:

“It is settled in this Commonwealth that the Fourth Amendment prohibition against unreasonable searches and seizures requires that a police officer give notice of his identity and announce his purpose before forcibly entering upon private premises to conduct a search or make an arrest. Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971). ‘The purpose of this announcement rule is that “ * * * the dignity and privacy protected by the fourth amendment demand a certain propriety on the part of policemen even after they have been authorized to invade an individual’s privacy. Regardless of how great the probable cause to believe a man guilty of a crime, he must be given a reasonable opportunity to surrender his privacy voluntarily.” ’ ” (Citations omitted) (Emphasis supplied)

Id., 220 Pa.Superior at 74, 283 A.2d at 721.

The majority in the instant case is condoning the unannounced entry of four police officers into a private residence based on the testimony of one police officer that another police officer had received a tip from an unknown informant that appellant could be found at this residence. The hearsay on hearsay testimony of an unidentified informant’s tip is, in this writer’s mind, clearly inadequate to create the exigent circumstances required before police can make an unannounced entry into a private residence.

The majority finds the record unclear as to whether the door of the Napa Street residence was ajar or closed when the police entered. The lower court, in its findings of fact, found that the police “entered an open or unlocked door” before proceeding, to the second floor where they apprehended appellant. While being cross-examined at the suppression hearing, Detective Gallagher indicated that he was sure the door was unlocked but was not sure if the door was completely shut. However, in referring to the first police officer who entered, Detective Gallagher stated, “I saw him turn the handle and go in.” (N.T. November 1, 1979, p. 39). In passing on the federal knock and announce rule in Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), the Court stated: “An unannounced intrusion into a dwelling ... is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a pass key, or ... open a closed but unlocked door.” (Footnote omitted) Id. at 590, 88 S.Ct. at 1758. In the case sub judice, the evidence shows that the police turned the door handle before pushing the door open and going inside. Because there is no evidence to indicate that the door was open, the officer’s failure to knock and announce cannot be excused on this point.

The Pennsylvania Supreme Court in Stanley, supra, did not announce a rule entitling police to enter anyone’s home unannounced without more than the excuse that they were tipped off by some unknown person that an armed felon was hiding there. Stanley excused the police from announcing their purpose after they had been led to the third party’s apartment by an identified informant and after they had knocked and announced their presence. The Supreme Court in Stanley, supra, stated: “[A]ll Fourth Amendment requirements are tempered by considerations of reasonableness under the circumstances ____ The purpose of the ‘knock and announce’ requirement is to permit peaceful surrender of the premises before forcible intrusion.” (Citations omitted). Id. 498 Pa. at 334, 446 A.2d at 587. I realize that the Fourth Amendment cannot be interpreted to imperil law enforcement officers. Id. However, when “reason to believe” is based on a tip such as the one in this case, I would interpret the United States Constitution as requiring the police to announce their presence from a point of safety rather than allowing them to enter through the front door unannounced.

I, therefore, dissent.

      . Appellant was apprehended with a revolver, three spent rounds, and three live rounds.

      . Timely post-trial motions were filed and denied.

      . Probable cause, an intrinsic element in valid warrantless arrests, has been defined as those facts and circumstances available to the police at the time of the arrest which would justify a reasonably prudent man in believing that the suspect has committed or is committing a crime. Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979); Commonwealth v. Culmer, 463 Pa. 189, 344 A.2d 487 (1975); Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967). Clearly, police in this instance had probable cause to arrest appellant. The victim was shot in the middle of the day and eyewitnesses identified appellant by his nickname and by a photographic array.

      . Therein, the police had obtained an arrest warrant, however, that fact does not impair the precential value of Stanley to the case at bar since we have already determined that the police had the requisite probable cause to effectuate an arrest and at that time did not require an arrest warrant.


author: ROWLEY, Judge:

text:
    462 A.2d 821
    COMMONWEALTH of Pennsylvania v. Duran J. SIMPSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1982.
    Filed July 8, 1983.

      Charles R. Bernsee, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   ROWLEY, Judge:

Appellant was convicted of attempted rape, burglary, simple assault, possessing an instrument of crime and criminal trespass. Post-trial motions were filed and denied and appellant was sentenced to concurrent terms of three to ten years imprisonment on the burglary and attempted rape convictions and two years probation on simple assault. Sentence on the convictions of possessing an instrument of crime and criminal trespass was suspended. This direct appeal followed.

Appellant raises three issues on appeal: 1) Did the court err in admitting into evidence (a) a pair of pants allegedly worn by appellant and (b) three photographs of the victim’s neck? 2) Was the evidence sufficient to support the convictions of attempted rape, burglary, simple assault, possession of an instrument of crime and criminal trespass?; and 3) Did the trial court improperly sentence appellant to double or multiple punishments for offenses arising out of the same act?

The facts of the case, as developed at trial, are as follows. At approximately 6:00 A.M. on October 22, 1979, the seventeen year old victim was asleep in her third-floor bedroom. She suddenly awoke to find appellant, whom she recognized from the neighborhood, standing beside her bed. The victim felt a pressure and a sharp point at her throat. Appellant was loosening the strings at the front of his pants and had lowered them to about two inches below his waist when the victim began to scream and pushed his hand away from her throat. Appellant told her to “shut up”. When the victim continued to scream for her mother, appellant pulled up his clothes and ran out of her bedroom and down the stairs. The victim’s younger sister, who was sleeping in the living room, awoke when she heard the victim scream and also recognized appellant as he was fleeing. The police were called. The officer who responded testified that the victim had a small puncture wound on her throat which was bleeding slightly. Both the victim and her sister accompanied the police to appellant’s home, where they identified appellant as the assailant. Appellant was arrested and a pair of blue jogging pants with a drawstring at the waist was seized.

I

Appellant first challenges the admissibility of the jogging pants and certain photographs. However, the issue of the admissibility of the photographs was not raised in appellant’s post-trial motions. Therefore, that issue has been waived. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).

Appellant also argues that the court abused its discretion in admitting his jogging pants into evidence because they were irrelevant. Appellant bases this argument on the fact that the victim could not positively identify them as the exact pants worn by her assailant, but rather testified that they were “similar” to what he was wearing. Evidence is relevant if it tends to prove or disprove the matters in controversy. Commonwealth v. Jones, 355 Pa. 594, 50 A.2d 342 (1947). The jogging pants were clearly relevant in this case. The fact that they could not be positively identified affects the weight of such evidence, not its admissibility. Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973). The trial court did not abuse its discretion in admitting the pants into evidence.

II

Appellant next challenges the sufficiency of the evidence to support his convictions. In reviewing the sufficiency of the evidence to support a conviction, we must view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979).

The law has long been that “the test of the sufficiency of the evidence ... is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted [citing cases].” Commonwealth v. Chasten, 443 Pa. 29, 31, 275 A.2d 305 (1971). Moreover, we of course must view the evidence in the light most favorable to the Commonwealth, the verdict winner, and the Commonwealth is entitled to every reasonable inference arising from that evidence. Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971), Commonwealth v. Ingram, 440 Pa. 239, 270 A.2d 190 (1970). Additionally, it is clear that a jury may believe all or only a part of or none of a witness’s testimony, and so long as the verdict is supported by the evidence there is no basis for interference with the fact-finding function of the jury.

Commonwealth v. Neal, 447 Pa. 452, 455-456, 290 A.2d 922, 924 (1972). Using that standard, we find that the evidence was sufficient to support the convictions of attempted rape and burglary.

Appellant argues that the evidence was insufficient to establish an attempted rape for two reasons. They are: 1) the Commonwealth failed to prove that the victim was not appellant’s spouse; and 2) there is no evidence that appellant took a “substantial step” towards the commission of a rape.

Appellant’s first argument is totally without merit. The victim testified that she was not related to appellant and that she recognized him because she had seen him around the neighborhood. This was sufficient to establish that the victim was not appellant’s spouse. See Commonwealth v. Schilling, 288 Pa.Super. 359, 431 A.2d 1088 (1981).

We have further concluded that the appellant’s actions in applying pressure to the victim’s throat and in loosening and beginning to remove his pants constituted a substantial step towards the commission of a rape and was sufficient to sustain the conviction for attempted rape.

Appellant also contends that the evidence was insufficient to support the burglary conviction for two reasons. They are: 1) the Commonwealth failed to prove that appellant was not licensed or privileged to enter the building; and 2) there was no evidence to support a finding that appellant intended to commit a crime when he entered the building. We find both arguments to be without merit.

Appellant entered a family residence in the early morning hours while the occupants were asleep. The victim testified that she had been the last person to enter the house that night, that she had locked the door, and that she had not given appellant permission to enter. This testimony was sufficient to prove that appellant was not licensed or privileged to enter the victim’s home. There was no need to call every person capable of authorizing an entry to testify that appellant was not given permission to do so. Commonwealth v. Knight, 276 Pa.Super. 348, 419 A.2d 492 (1980).

The specific intent to commit a crime, necessary for a burglary conviction, may be inferred from the defendant’s words or conduct or from the circumstances of the case together with all reasonable inferences therefrom. Commonwealth v. Tingle, 275 Pa.Super. 489, 419 A.2d 6 (1980). We have concluded that based upon the evidence presented at trial, which is set out above, that the finder of fact could reasonably have inferred that appellant intended to commit the crime of rape when he entered the residence.

We have concluded that the judgments of sentence for possessing an instrument of crime and criminal trespass must be vacated on other grounds. Therefore, we need not address the sufficiency of the evidence with respect to those offenses. The question of the sufficiency of the evidence to support the conviction for simple assault was not raised in post-trial motions and, therefore, has been waived. Commonwealth v. Gravely, supra.

Ill

Finally, appellant challenges his multiple convictions and sentences. Specifically, appellant alleges that: 1) he was improperly convicted of both attempted rape and possessing an instrument of crime; 2) he was improperly convicted of both burglary and attempted rape; 3) the simple assault conviction merged with the conviction for attempted rape; and 4) the conviction for criminal trespass merged with the conviction for burglary.

A.

Appellant’s first argument has merit. Criminal Attempt, 18 Pa.C.S.A. § 901, and Possessing Instruments of Crime, 18 Pa.C.S.A. § 907, are both inchoate crimes. 18 Pa.C.S.A. § 906 provides that:

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

Therefore, appellant was improperly convicted of both offenses. In such a case, we have the option of either remanding for resentencing or amending the sentence directly. Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981). Since sentence for possessing instruments of crime, the lesser offense, was suspended, we see no need to remand for resentencing. However, even though appellant did not receive an additional punishment, it has been held that the future prejudice to appellant is sufficient basis upon which to vacate an improperly imposed suspended sentence. Commonwealth v. Richardson, 232 Pa.Super. 123, 334 A.2d 700 (1975). Therefore, the suspended sentence for possessing an instrument of crime will be vacated.

B.

Appellant next argues that he was improperly convicted of both burglary and attempted rape. This argument is without merit. Under 18 Pa.C.S.A. § 3502(d), a defendant may be convicted of both burglary and the offense which he intended to commit after entry if the additional offense constitutes a felony of the first.or second degree. Under 18 Pa.C.S.A. § 905, an attempt to commit a felony of the first degree is a felony of the second degree. Rape is a felony of the first degree. 18 Pa.C.S.A. § 3121. Therefore, attempted rape is a felony of the second degree and appellant could properly be convicted and sentenced for both that offense and burglary.

C.

Appellant next argues that the offense of simple assault merged with the offense of attempted rape. Under the facts of this case, we agree.

In Commonwealth v. Irvin, 260 Pa.Super. 122, 393 A.2d 1042 (1978), the Court held that if a simple assault is used to overcome the volition of a rape victim and force her submission, the assault and the rape would be a single act.

Under the Penal Code , a separate offense was provided for the crime of assault with intent to ravish. The distinction between that crime and rape was that, in the case of rape, the assault resulted in submission. On the other hand, in the case of assault with intent to ravish, the assault failed to force submission. Commonwealth v. Irvin, supra. Since both offenses were part of a single act, the crime of assault merged with the crime of assault with intent to ravish. Com. ex rel. Tokarchik v. Claudy, 174 Pa.Super. 509, 102 A.2d 207 (1954).

We have concluded that in this case, the crime of simple assault merges with the crime of attempted rape. The simple assault in this case, namely the application of pressure to the victim’s throat with a sharp pointed object, was an important element in proving an attempted rape. Once the attempted rape was established, no additional facts were required to prove a simple assault. See Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981). The fact that the assault did not succeed in overcoming the victim’s resistance, thereby preventing appellant from completing the act of rape, does not convert appellant’s actions into two separate crimes.

Where a case requires a correction of sentence, this court has the option of remanding for resentencing or amending the sentence directly. Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980). Since appellant merely received a term of probation for simple assault, we see no need to remand for resentencing on attempted rape. See Commonwealth v. Guenzer, 255 Pa.Super. 587, 389 A.2d 133 (1978). However, the probationary sentence for simple assault will be vacated.

D.

Appellant’s final argument is that the crime of criminal trespass merged with burglary. The doctrines of merger and of lesser included offenses raise essentially the same question. Commonwealth v. Ackerman, 239 Pa.Super. 187, 191 n. 4, 361 A.2d 746, 748 n. 4 (1976). The test for determining whether an offense is a lesser included offense is whether all of the essential elements of the lesser offense are included in the greater offense. Commonwealth v. Ostolaza, 267 Pa.Super. 451, 406 A.2d 1128 (1979). Using this test, criminal trespass is not a lesser included offense of burglary, since one of the elements of the former is knowledge by the defendant that he was not privileged to enter, which is not an element of burglary. Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978). However, when discussing merger for sentencing purposes,

“we focus not only in the similarity of the elements of the crime but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be merger and only a single sentence which may be imposed, or more than a single act, in which case there will be no merger and a sentence may be for each act.”

Commonwealth v. Crocker, 280 Pa.Super. 470, 475, 421 A.2d 818, 820 (1980) (citations omitted).

Here, as in Crocker, the evidence indicated that appellant committed one criminal act; specifically, one unlawful entry. Therefore, the court erred in sentencing him for both burglary and criminal trespass.

Since the sentence for criminal trespass was suspended, and obviously did not affect the sentence for burglary, there is no need to remand this case for resentencing. We will merely vacate the suspended sentence for criminal trespass, as the lesser crime. See Commonwealth v. Crocker, supra.

Judgment of Sentence for attempted rape and burglary affirmed. Judgment of Sentence for simple assault, possessing an instrument of crime and criminal trespass vacated.

      . Act of June 24, 1939, P.L. 872, No. 375 §§ 101 et seq., 18 P.S. §§ 4101 et seq., repealed, Act of Dec. 6, 1972, P.L. 1482, No. 334 § 5.