author: HESTER, Judge:

text:
    479 A.2d 578
    Jacqueline A. COHN, Personal Representative of the Estate of Marguerite I. Grekowicz, Deceased v. Terence F. McGURK and Minella D. McGurk, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1984.
    Filed June 22, 1984.

      Raymond Peppelman, Jr., Philadelphia, for appellants.
    Marc H. Jaffe, Ardmore, for appellees.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   HESTER, Judge:

This is an appeal from the denial of appellants’ Petition to Open and/or Strike Judgment entered by Confession.

The facts of the case are as follows:

On September 5, 1979, Marguerite Grekowicz, sister of appellant Terence McGurk, died in Littleton, Colorado. At the time of her death, Mrs. Grekowicz had five children, three boys and two girls ranging in age from seven to fifteen. In her Last Will, regarding the care of her children, Mrs. Grekowicz provided:

“2.2 Trustee. I appoint TERENCE McGURK as Trustee of my Trust Estate. If he shall fail to qualify or cease to act, I appoint ROSEMARY McGURK as successor Trustee. If more than one Trustee is acting at any time, any reference to Trustee hereunder shall include all Trustees.
2.3 Guardian.
a. If it becomes necessary to appoint a guardian of the person, estate, or person and estate of any of my minor children with respect to any property passing under this Will or outside thereof by reason of my death, I appoint TERENCE and MINELLA McGURK, or the survivor of them, or in the event of a divorce, TERENCE McGURK, as guardian of the person and estate of such minor children, to serve without bond.
b. I recognize that serving as the guardian of the person and estate of my minor children may result in economic hardship to the guardian. Accordingly, pursuant to Section 1484 of the California Probate Code, I herewith specifically authorize any person nominated in this Will and serving as guardian of the person and estate of my minor children to utilize such funds of the guardianship estate as are reasonably necessary to offset any economic burdens occasioned to the guardian by virtue of his acting in such capacity. By way of illustration, but not by way of limitation, I expressly authorize the guardian to utilize the guardianship estate to expand, enlarge, or remodel the existing home of the guardian or to purchase a larger home, if reasonably required, in order to permit all of my minor children to reside with such guardian in comfort. The reasonableness of the need to enlarge the guardian’s present home, or to purchase a larger one, as the case may be, shall depend in part on (i) the number and ages of children for whom the guardian of the person is required to care (including his or her own children), and (ii) the size of the guardianship estate. Such guardian may also utilize guardianship funds to pay any increases in living expenses occasioned by such guardianship, including but not limited to increases in homeowners’ fire and casualty insurance, property taxes incurred by the remodeling or expansion of said guardian’s home or the purchase of a new home, utility bills and food bills. All such expenses shall be charged in equal shares against the guardianship estate of each of my minor children. The guardian shall also be permitted to reside with my children in my personal residence, although title to such residence shall remain in my Trust Estate, as hereafter defined until some future disposition is made to my beneficiaries.”

At the time of Mrs. Grekowicz’s death, appellants and their three children resided in a three-bedroom dwelling in Pennsylvania. Appellant Terence McGurk was earning approximately $40,000.00 per year as the owner of a service station. While it is disputed whether appellee agreed to give appellants $60,000.00 pursuant to the quoted portions of the Will or whether that amount was to be in the form of a loan from the estate, it is undisputed that Mr. McGurk had consulted the appellee before deciding to purchase a new home to accommodate the decedent’s five children. Appellants purchased a six-bedroom home for $205,000.00.

Relying upon their understanding that they would receive a $60,000.00 gift from the decedent’s estate, appellants deposited a down payment of $20,000.00, which was taken from their children’s college education fund, upon the large residence. However, a disagreement arose as to whether appellants would receive the $60,000.00 as a gift from the estate as provided for in the Will, or whether the $60,000.00 constituted a loan from the estate. In addition, appellants and appellee disagreed as to whether the money would be paid from funds transferred from decedent’s general estate to her children’s guardianship estate within a year from the date of purchase of appellants’ new residence.

At the closing of the purchase of appellants’ new residence, appellee, through her attorney, advised appellants that they would be required to execute a mortgage and note in favor of the estate, otherwise the $60,000.00 would not be forthcoming. Appellants signed the mortgage documents but allege this was done under duress, otherwise they would have forfeited the $20,000.00 deposit which had been withdrawn from their children’s college fund.

The mortgage, bond and warrant required that appellants repay the $60,000.00 by December 10, 1980 (one year from the closing of the transaction.) In addition, said documents contained the usual provisions for the payment of 6% interest annually and costs of suit and an attorney’s commission of 5% for collection in the event of default.

On January 5, 1983, appellee confessed judgment against appellants for $71,493.37, together with future interest, attorneys’ fees and costs. In response to appellee’s Confession, appellants filed a Petition to Open and/or Strike Judgment Entered by Confession alleging those contentions set forth above.

Following a hearing wherein appellants’ witnesses were not permitted to testify as to what had occurred at the settlement due to the parol evidence rule, the hearing court denied appellants’ Petition. It is from said denial that appellants have appealed.

Following the filing of appellants’ Notice of Appeal on May 3, 1983, appellee filed a Motion to Quash the Appeal for Mootness. Therein appellee alleged that the decedent’s children no longer lived with appellants and that since appellants had sold their new residence and repaid the $60,000.00 to appellee, the appeal was moot. Appellants contend that they repaid the $60,000.00 only because it was necessary to enable them to deliver clear title to the property.

Appellants failed to answer appellee’s Motion to Quash and this Court, on October 18, 1983, quashed the appeal. Subsequently, appellants filed an Application for Reconsideration in which they averred that as a result of the inadvertence of counsel, the answer was not filed. Appellants denied that the appeal was moot since appellee was attempting to collect interest on the loan and appellants had incorporated by reference the arguments set forth in their brief. One of the arguments was that the lower court erred in not permitting testimony as to the alleged inducements made by appellee to the effect that funds from the general estate would be transferred to the guardianship estate in order to permit appellants to repay the $60,000.00. Appellants further aver that the above-mentioned testimony should have been admitted to clear up the alleged ambiguities in the mortgage documents.

Upon consideration of appellants’ Application for Reconsideration, we reinstated their appeal.

In considering this appeal, we will first address appellee’s contention that appellants have waived any arguments concerning their payment of interest on the mortgage. Appel-lee, in support of this allegation, contends that appellants did not raise this issue in either their: 1) Petition to Open and/or Strike Judgment; 2) testimony presented at the hearing or in their offer of proof at the hearing; 3) Statement of Matters Complained of Pursuant to Pa.R.A.P. 1925(b); or 4) brief filed in this matter.

We must disagree. In appellants’ Statement of Matters Complained of Pursuant to Pa.R.A.P. 1925(b), appellants, in paragraph 4, specifically assert:

Defendants [appellants] respectfully assert that the testimony offered by them would have shown that the monies to repay the note which they signed were promised to them in their capacity as guardians by Jacqueline Cohn, that such funds were never released to them and that they were induced to enter into the notes by such promises and that the refusal of the court to hear that testimony was error.

In that the funds required to repay the note not only include the $60,000.00 principal, but also 6% interest per annum interest and an attorney’s commission for collection, appellants have properly preserved this issue for appeal.

Regarding the merits of the aforementioned issues raised by appellants, they center upon whether the parol evidence rule barred the admission of testimony by appellants to demonstrate that there were two separate oral agreements entered into between appellants and appellee prior to the execution of the mortgage. One of the agreements, appellants contend, was made prior to the signing of the mortgage and that appellee allegedly agreed to give appellants sufficient funds to enable them to purchase a new home in order to accommodate decedent’s children, as specifically authorized in Section 2.3(b) of the decedent’s Will. That section of the document states “By way of illustration, but not by way of limitation, I expressly authorize the guardian to utilize the guardianship estate to expand, enlarge, or remodel the existing home of the guardian or to purchase a larger home, if reasonably required, in order to permit all of my minor children to reside with such guardian in comfort.”

The second agreement appellants allege was contemporaneous with the signing of the mortgage is that appellants, not anticipating the appearance of the estate’s attorney at the real estate settlement with the mortgage documents as hereinabove set forth, signed the mortgage only after being assured that the funds from the general estate would be transferred to the guardianship estate within the one year payment period of the mortgage to enable appellants to repay the mortgage. In support of the alleged agreements, appellants offered the testimony of appellant Terence McGurk, attorney Dennis Sheedy, appellants’ attorney at the time of the closing on their residence, and the purchaser’s affidavit, which states:

The purchases (sic) have signed a second mortgage with bond and warrant payable Jacqueline A. Gohn (sic) to protect the personal representation (sic) of Estate of Marguerite I. Grekiwocz (sic) deceased until December 1980, the expected date of distribution of Estate of the purchase as residuary legatees in a trust capacity ...

We believe the present case is controlled by our decision in Kravitz v. Mudry, 200 Pa.Super. 240, 189 A.2d 311 (1963). The facts in Kravitz, supra, were as follows:

The parties on November 3, 1956, entered into a written agreement of sale for a house under construction at 1103 Chesworth Road, Philadelphia. The com-plaint averred that prior to entering into the agreement of sale the plaintiffs-purchasers pointed out to the defendant certain defects in materials and workmanship and in order to induce the plaintiffs to enter into the agreement of sale the defendant agreed to remedy the defects before settlement; that the defects were not remedied and that plaintiffs refused to take title or make settlement; that the defendant agreed to remedy the defects and the plaintiffs made settlement in reliance upon this oral agreement of the defendant; that because of the failure of the defendant to remedy the defects the plaintiffs sustained damage to the extent of $3597.96.

Kravitz, supra 189 A.2d at 312. The defendant in Kravitz, supra, as appellee in the present case, contended that the evidence of the prior oral inducement to sign the agreement of sale was inadmissible due to the written agreement constituting the entire agreement between the parties.

In rejecting defendant’s argument, we stated:

We believe that the defendant’s position as to the law is untenable, even though the agreement of sale is a full and complete agreement precluding the admissibility of any prior understandings, the agreement covered the construction of an unfinished house. The builder still had the duty of constructing a house according to specifications reasonably free of defects, Stewart v. Trimble, 15 Pa.Super. 513 (1901). If the builder or vendor failed to properly construct the house the purchaser could refuse to accept the deed or to make settlement. Under the circumstances the waiver of this right to refuse to make settlement furnishes a valid consideration for the agreement by the vendor to make the necessary repairs after settlement. Thus, the cause of action is based on an entirely separate agreement, distinct from the agreement of sale. Since this separate agreement is supported by consideration it is legally enforceable and evidence to establish this agreement is clearly admissible. (emphasis added).

Kravitz, supra, 189 A.2d at 312. We, as the court in Kravitz, supra, conclude that the alleged oral contract entered into between appellant Terrence McGurk and appel-lee some time before the mortgage was executed was an entirely separate agreement supported by consideration. This consideration would consist of providing sufficient funds from the estate to appellants in order to permit them to provide reasonable living accommodations for the deceased’s five children as provided for in her Will.

As to the admissibility of parol evidence regarding the alleged second oral agreement to the effect that if appellants signed the mortgage, funds to repay said mortgage would be transferred from the general estate to the guardianship estate and then made available to appellants, we hold that parol evidence would be admissible based not only on the fact that this was a separate agreement, as in Kravitz, supra, but also, that the mortgage was signed by appellants upon the alleged representations made to them by appellee and/or her attorney. Greenwood v. Kadoich, 239 Pa.Super. 372, 357 A.2d 604 (1976).

In addition, parol evidence is admissible concerning the alleged second agreement based upon the following:

The parol evidence rule, has never barred the introduction of clear, precise, and convincing evidence to show that the party who seeks to enforce the written agreement according to its tenor has admitted and acknowledged that the agreement as written did not express what the parties intended and that what the parties intended was omitted from the agreement by accident or mistake.

Dunn v. Orloff, 420 Pa. 492, 500, 218 A.2d 314, 316 (1966); quoting Boyd Estate, 394 Pa. 225, 233, 146 A.2d 816, 820 (1958). See also Gitt v. Myers, 273 Pa.Super. 310, 315, 417 A.2d 664, 667 (1979). Appellants sought to introduce testimony that appellee, at a hearing held in Colorado, stated that her intention as to the mortgage agreement was that the $60,000.00 would not be due the estate until the residence which appellants purchased with this money had been sold, or as long as the decedent’s children resided with appellants. This evidence would not be barred by the parol evidence rule.

Further, parol evidence regarding the alleged second agreement would be admissible as the result of appellants’ assertion that they were under duress when they signed the mortgage documents. See: 15 P.L.E., Evidence, § 305. Specifically, appellants contend that if they had not signed the mortgage documents, they would have lost the $20,000.00 down payment on their new residence and would have been left homeless since they had sold their former residence. Certainly, this evidence, if found to be true, would constitute a situation of duress caused by the alleged misrepresentations of the appellee.

Therefore, we must reverse and remand for a hearing to permit appellants to introduce that testimony which we have held does not violate the parol evidence rule.

Reversed and remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . It is to be noted that in the event the loan was to be repaid by appellants, they contend that appellee advised them it would not be due until they sold their new residence. Appellee contends that appellants were to repay the loan within one year.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    479 A.2d 583
    Barry L. HARNER v. Elizabeth A. HARNER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 4, 1984.
    Filed June 29, 1984.

      Laurence T. Himes, Jr., York, for appellant.
    Henry O. Heiser, III, Gettysburg, for appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from a custody order. For the reasons discussed below, we affirm.

The parties were married on September 26, 1975, and their only child, Chad Lynn, was born on August 3, 1976. Appellant, Elizabeth A. Harner, is a fourth grade elementary school teacher in Gettysburg, Adams County, Pa. Appel-lee, Barry L. Harner, is vice-president of Community National Bank of Southern Pennsylvania in Littlestown, Adams County, Pa. On October 4, 1982, appellee left the parties’ marital home in Hanover, York County, Pa., and moved into Colonial Crest Apartments, an adult apartment complex in Hanover. Chad remained with appellant. For approximately the next six weeks, pursuant to the parties’ arrangement, appellee exercised weekend visitation privileges. However, on the weekend beginning November 20, 1982, the parties had an argument which resulted in appellant following appellee and Chad when they left the marital home and running her car into appellee’s car causing approximately $300 in damages. Appellee never returned Chad after that incident and currently lives with Chad in a rented house in Hanover. Appellee shares this house with Elaine Hertz, whom appellee met at Colonial Crest Apartments, and Mrs. Hertz’s two teenage children. Chad was then six years old.

Pursuant to a divorce complaint filed by appellee on October 8, 1982, appellant’s November 12 answer containing a custody counterclaim, and appellee’s November 26 reply to the counterclaim, a pre-hearing conference was held before a court-appointed Master on December 2, 1982. The Master’s report, filed December 21, listed the case for trial and recommended that primary custody be given to appellee with liberal visitation for appellant until the custody hearing. On February 25, 1983, a custody hearing was held before the lower court, which entered the following order on March 3, 1983:

AND NOW, TO WIT: This 3rd day of March, 1983, custody of Chad Lynn Harner, born August 3, 1976, shall be shared by the parents, Barry L. Harner, the father, and Elizabeth A. Harner, the mother. Legal custody shall be shared in that the parents shall have the responsibility for jointly making decisions which affect the child’s educational, religious, medical and social welfare. Majority physical custody shall remain in the father subject to partial custody in the mother as follows:
1. On alternating weekends, from 5:00 p.m. on Friday to 6:00 p.m. on Sunday, beginning March 11, 1983.
2. From 4:00 p.m. until 8:00 p.m. each Tuesday.
3. On alternating holidays from 9:00 a.m. until 8:00 p.m., those holidays being Memorial Day, July 4, Labor Day and Thanksgiving.
4. In even numbered years from 2:00 p.m. on December 25 until 6:00 p.m. on January 1, and in odd numbered years from 4:00 p.m. on December 24 until 6:00 p.m. on December 30.
5. During the summer school vacation, an uninterrupted period of six (6) consecutive weeks upon thirty (30) days written notice to the father of the dates when such partial custody will be assumed.
The parties are encouraged to make such alterations and changes in the times of their respective custodial periods as will be suitable to their own schedules from time to time. We recognize that flexibility is desirable. We direct that two copies of this Order be transmitted to counsel for each of the parties and that counsel transmit one copy to their respective clients.

This appeal followed.

It is well-established that the sole criterion in child custody decisions is the best interests and welfare of the child. Commonwealth ex rel. J.J.B. v. R.A.McG., 283 Pa. Superior Ct. 185, 423 A.2d 1050 (1980); Trefsgar v. Trefsgar, 261 Pa.Superior Ct. 1, 395 A.2d 273 (1978); Bender v. Bender, 261 Pa.Superior Ct. 12, 395 A.2d 279 (1978); In re Custody of Phillips, 260 Pa.Superior Ct. 402, 394 A.2d 989 (1978); Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Superior Ct. 82, 369 A.2d 821 (1977); Act of June 26, 1895, P.L. 316 § 2, 48 P.S. § 92. Ensuring the child’s “physical, intellectual, moral and spiritual well-being” is the focal point of our evaluation of a child’s best interests. Commonwealth ex rel. Cutler v. Cutler, supra, 246 Pa.Superior Ct. at 85, 369 A.2d at 822. Our scope of review in child custody cases is broad. Although “we must accept the trial court’s findings of fact, unless they are unsupported by the evidence, ... on those facts we must make such order as our independent judgment persuades us right and justice dictate.” In re: Donna W. and Edward W., 325 Pa. Superior Ct. 39, 472 A.2d 635 (1984) (en banc), at 636. See also Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981) (independent judgment to be exercised in custody cases); Commonwealth ex rel. Newcomer v. King, 301 Pa.Superior Ct. 239, 447 A.2d 630 (1982). While we continue to accord weight to the iower court’s findings which are premised on a direct assessment of the witnesses’ credibility, we are not bound by the lower court’s deductions and inferences. See Commonwealth ex rel. Cutler v. Cutler, supra, 246 Pa.Superior Ct. at 88, 369 A.2d at 823. In order for us to exercise our independent judgment, however, the record must be complete and the trial court’s opinion comprehensive; otherwise, a remand may be necessary. In re: Donna W. and Edward W., supra, 325 Pa.Superior Ct. at 50-51, 472 A.2d at 641-642. See also Commonwealth ex rel. Michael R. v. Robert R.R., 293 Pa.Superior Ct. 18, 437 A.2d 969 (1981), appeal after remand, 314 Pa.Superior Ct. 335, 460 A.2d 1167 (1983) (in order to facilitate broad appellate review of custody orders, trial court must provide complete record and comprehensive opinion containing thorough analysis of the record and specific reasons for the court’s ultimate decision); Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Superior Ct. 63, 434 A.2d 130 (1981) (despite absence of comprehensive opinion, record is sufficiently complete to permit appellate review of merits if essential facts are not in dispute).

Appellant first attacks the custody order on the grounds that (1) the order was not accompanied by a comprehensive opinion containing a thorough analysis of the record and specific reasons for the court’s ultimate decision, and (2) the record is incomplete and the essential facts in dispute. At the custody hearing, nine witnesses testified, including the parties, a psychiatrist, a child psychologist, the paternal grandmother, school teachers and Mrs. Hertz. Appellant sought to establish through testimony that appellee never disciplined Chad and instead encouraged Chad to disobey her, that appellee set a bad example through his prejudices against blacks and women, and that her own relationship with Chad was excellent. Appellee, on the other hand, sought to show that appellant tended to act emotionally and explosively to situations, that she threw things at Chad and treated Chad coldly, and that Chad feared appellant and did not want to live with her. When the court interviewed Chad in chambers, Chad expressed a desire to live with appellee. Following the hearing, the court informed the parties that it would consider the matter over the weekend and, subsequently, the court entered its custody order. Although the lower court made no formal findings of fact, the findings of fact implied in the court’s narrative opinion, if supported by the record, are binding on this Court. See In re: Donna W. and Edward W, supra, 325 Pa.Superior Ct. at 55, 472 A.2d at 643. In its opinion, the court found the following:

(1) “[B]oth [parties’] homes offer satisfactory and appropriate living accommodations for the child.” (Lower Court Opinion at 2).
(2) “[Appellant] is a very competent, capable person possessed of a good educational background.” (Lower Court Opinion at 2).
(3) “[Appellant] does in fact love the child, and has devoted a fair amount of time to his upbringing.” (Lower Court Opinion at 3).
(4) “[T]he paternal grandmother has had the child in her home for substantial periods of time after school and in the evening.” (Lower Court Opinion at 3).
(5) “[Appellant] harbors great bitterness toward [appel-lee] and she is unlikely to see any good points in him whatsoever.” (Lower Court Opinion at 4).
(6) “[D]eep-seated problems ... appear to now exist between mother and son.” (Lower Court Opinion at 5).
(7) “[Appellee] has a loving relationship with his son, and ... the son returns that affection.” (Lower Court Opinion at 5).
(8) “While the mother was responsible for more of the day-to-day parenting than the father, ... he has the ability and the desire to provide the parenting necessary for the proper training of his son.” (Lower Court Opinion at 5).
(9) “[Appellee and Mrs. Hertz] do intend to establish a home for her children and for Chad[.]” (Lower Court Opinions at 5).
(10) Appellee has an admitted bias towards minorities and women. (Lower Court Opinion at 5-6).
(11) “The paternal grandmother, Mrs. Viola Harner, is seventy-four years of age but appears to be alert and active. It is obvious that she has a deep affection for her grandson and showed a considerable degree of understanding of the tensions and pressures which have contributed to and resulted from the disintegration of the marriage of Chad’s parents.” (Lower Court Opinion at 6).
(12) “We are satisfied that the father’s new relationship [with Mrs. Hertz] is a stable and 'meaningful’ one, in the fashion of the day.” (Lower Court Opinion at 7).
(13) “Both the parents have the intelligence and background to participate in the decisions that will affect Chad’s life.” (Lower Court Opinion at 7).

These findings are supported by competent evidence in the record. The lower court also expressed concern over the allegations of appellant’s “volatile temper”, the testimony regarding appellee’s prejudices, and appellee’s “meretricious relationship” with Mrs. Hertz. (Lower Court Opinion at 3, 5-6, 7). The court then drew the following conclusions: (1) Although appellant would be an appropriate custodial parent for Chad, counseling would be required to resolve the problems between them; (2) appellee would also be a proper custodial parent for Chad; (3) the home that appellee and Mrs. Hertz intend to establish would be “a cohesive family unit in which Chad can look forward to a normal development”; (4) the “extended family” aspect of the case, involving the grandmother’s babysitting role, is an important factor; (5) Chad will have a better chance of normal development by placing custody in appellee; (6) Chad’s best interests also require liberal visitation with appellant; and (7) the concept of shared custody is appropriate in this case. (Lower Court Opinion at 5, 6, 7).

Appellant argues that the lower court failed to explain why Chad’s best interests would be better served in appellee’s custody. This argument is meritless. It is clear from the opinion that the court conducted a thorough analysis of the record and outlined specific reasons for its decision. We can determine from the court’s opinion that the deciding factors were the loving home environment presently provided for Chad by appellee, Mrs. Hertz, and the grandmother as compared with the negative relationship between appellant and Chad, Chad’s hostile attitude towards appellant, and the indications of appellant’s violent tendencies. Although the court makes no mention of Chad’s preference, it is possible that the court also considered this fact. See Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa.Superior Ct. 444, 427 A.2d 1370 (1981) (child’s expressed preference for a particular parent is to be considered but is not controlling).

Appellant also argues that the lower court failed to explore fully the effects of appellee’s prejudices and the problems between appellant and Chad on Chad and also failed to make appropriate findings of fact on disputed issues, particularly, appellant’s role prior to the separation, her drinking habits and her emotional stability. After a careful review of the record, we believe that all the relevant circumstances, including the aforementioned, were thoroughly examined at the custody hearing and adequately dealt with in the lower court’s opinion. Further, the lower court did recognize appellant’s role as Chad’s primary caretaker prior to the parties’ separation. See Lower Court Opinion at 5. Moreover, although the lower court merely referred to the testimony regarding appellant’s drinking habits and expressed it concern as to the allegations of appellant’s volatile nature, without making express determinations thereon, this does not hamper our ability to make an independent judgment because we can readily infer from the lower court opinion that the court was primarily concerned with the “deep-seated problems” between appellant and Chad and with Chad’s strong hostility towards appellant. Additionally, although the court considered testimony both supporting and refuting the allegations of appellant’s volatile behavior, the court apparently did not believe that it was enough of a problem to render appellant an unfit custodian. Therefore, we conclude that both the lower court’s opinion and the record were complete and comprehensive, covered all relevant factors, and enabled us to exercise independent review.

Appellant contends, alternatively, that the record, if found complete, does not provide persuasive reasons for confirming custody in appellee. She argues specifically that the lower court erred in its analysis of (1) the grandmother’s role in the extended family, (2) the effect of appellee’s admitted prejudice against blacks and women, (3) the effect of appellee’s new living arrangement on Chad’s development, and (4) the effect on Chad of maintaining the status quo. We disagree. First, contrary to appellant’s assertion, we do not believe that the lower court implied in its opinion that the paternal grandmother’s role as a before- and-after school babysitter for Chad would cease in the event custody was awarded to appellant. The court merely stressed the importance of that role in view of the fact that all of the adults in this case are employed. This factor would favor either party. However, the court did appear to view with favor the convenience of the present situation: Chad’s living with appellee, appellee dropping Chad off at the grandmother’s house in the morning for breakfast, the grandmother’s walking Chad to school and bringing him back after school to her home, where appellee picked him up after work. Next, the lower court recognized that appellee had admitted his prejudice towards blacks and women and had expressed his intent to deal with it. In this regard, the court stated:

It is difficult to evaluate these prejudices and the effect that they may have upon the child; also it is difficult to assess the degree of success the father will have in addressing these problems. However, we do not feel that these negative attributes are in themselves disqualifying to the father.

(Lower Court Opinion at 5-6). Although we disapprove of such prejudices, we find it clear from the record and opinion that the lower court had the same concern and, consequently, thoroughly considered this factor in reaching its decision. Moreover, many factors are taken into account in determining what will be in the best interests of the child and we are reluctant to disturb the weight given to this factor by the lower court, which assessed appellee’s credibility in this regard after personally observing him on the witness stand.

We also find that the lower court properly analyzed the effect on Chad of appellee’s living arrangements with Mrs. Hertz, stating:

[W]e express our concern that the father is living in a meretricious relationship. We acknowledge that the Appellate Courts have stated repeatedly that that fact alone cannot determine the right of custody adversely to the person living in such a relationship. Whatever our own views may be concerning the appropriateness of the placing of a six-year-old child in that situation, we are bound by the Appellate Court decisions. We are satisfied that the father’s new relationship is a stable and “meaningful” one, in the fashion of the day.

(Lower Court Opinion at 7). The court also found that appellee and Mrs. Hertz intend to marry and establish a home for Chad and Mrs. Hertz’s two children as soon as their respective divorces are finalized. (Lower Court Opinion at 2, 5). The court then concluded that such a home will be a “cohesive family unit in which Chad can look forward to a normal development.” (Lower Court Opinion at 5). Contrary to appellant’s assertion, we do not believe that the court based its custody decision on a presumption that two-parent families are superior to one-parent families. As previously noted, the court, in fact, found that both parties’ homes would offer satisfactory living accommodations for Chad. We also note that the record indicates that Chad’s living with appellee and Mrs. Hertz and her two children has had a favorable effect upon Chad’s emotional well-being and progress at school. “[W]here the child’s parents are equally fit, or nearly so, ... the fact that a stable, long-continued and happy relationship has developed between the child and one of the parents may be of critical importance to the formulation of an appropriate custody decree.” Pamela J.K. v. Roger D.J., 277 Pa.Superior Ct. 579, 589, 419 A.2d 1301, 1307 (1980). Although it is true that appellant acted as the primary caretaker for the first six years of Chad’s life while appellee has only had custody of Chad since November 20, 1982, the record indicates that the home environment prior to the parties’ separation was not a happy one due to the parties’ disagreements. On the other hand, it appears that Chad has been doing well while in appellee’s primary custody. See Commonwealth ex rel. J.J.B. v. R.A.McG., supra, 283 Pa.Superior Ct., at 188, 423 A.2d at 1052 (“[C]ourts are reluctant to disturb existing custody arrangements which have satisfactorily served the best interests of the children concerned.”). Therefore, we cannot say that the lower court erred in approving of the stability and favorable effect of the current status quo.

From our independent review of the record, we find that the conclusions drawn by the lower court regarding Chad’s custody are correct. Under these circumstances, we hold that Chad’s best interests will be served by allowing Chad to remain in the primary custody of his father. Accordingly, we affirm the order of the court below.

Affirmed.

       We find Bender v. Bender, 261 Pa.Superior Ct. 12, 395 A.2d 279 (1978), cited by appellant, distinguishable because the lower court’s opinion in that case was clearly insufficient and failed to discuss all the factors relevant to the determination of the child’s proper custodian.


author: ROWLEY, Judge:

text:
    479 A.2d 589
    COMMONWEALTH of Pennsylvania v. George Rahsaan BROOKS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 10, 1984.
    Filed July 6, 1984.

      Michael J. Healey, Pittsburgh, for appellant.

      Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   ROWLEY, Judge:

This is an appeal from a pre-trial order of the trial court which denied appellant’s motion to quash an information charging him with assault by prisoner, assault by life prisoner and simple assault. Appellant contends that because he was subjected to prison discipline based on the same facts supporting the criminal charges, criminal prosecution is barred by the Double Jeopardy clause of the Federal and State Constitutions. U.S. Const. Amends. V and XIV; Pa. Const. Art. I, § 10. We disagree and affirm the order of the trial court.

The facts are not in dispute. Appellant, an inmate at the State Correctional Institution at Pittsburgh, was involved in an altercation with two prison guards on October 8, 1981. Misconduct charges were filed by the guards with prison authorities and, on October 12, 1981, the prison Hearing Committee heard testimony concerning the incident from appellant and the guards. The Committee found that appellant had failed to obey an order and had attacked the guards. Appellant was placed in maximum disciplinary custody for 180 days from the date of the incident. See 37 Pa.Code §§ 95.101 et seq. The criminal complaint against appellant was filed on October 20, 1981, and the information was filed on December 9, 1981. The information is based on the same incident and conduct for which appellant was disciplined. Appellant filed his motion to quash the information on March 18, 1982 and, after a hearing, it was denied on March 23, 1982. This appeal followed.

“Th[e] proscription against double jeopardy means that no one should be harassed by successive prosecutions for a single wrongful act and that no one should be punished more than once for the same offense.” Commonwealth v. Starks, 490 Pa. 336, 339, 416 A.2d 498, 499 (1980). Citing no authority on point, appellant argues that criminal prosecution in the instant case is barred under both of the policy considerations articulated in Starks. He contends that he was “prosecuted” for misconduct, found guilty and “sentenced” to the maximum term of six months in the restrictive housing unit. Appellant also asserts that this conclusion is buttressed by applicable regulations of the Bureau of Corrections which state in part:

These §§ 95.1-95.12 (relating to prosecution procedures) set forth the general rules of procedure by which alleged violations of the Commonwealth Penal Code shall be processed, investigated, disposed of, either by prosecution or administrative action.

37 Pa.Code § 95.2 (appellant’s emphasis).

He argues that this provision, both by itself and when read in conjunction with the proscription against double jeopardy, requires that a choice be made as to whether an inmate be administratively disciplined or criminally punished, but not both. We disagree.

Initially, we reject appellant’s construction of the regulations. Section 95.2 sets forth no more than the scope of §§ 95.1-95.12. It states that regardless of whether an incident is being handled by prison authorities or the police, the procedures to be followed are the same. This section does not require that a choice be made as to the method of disposition. Moreover, § 95.1 sets forth the Bureau’s policy regarding the maintenance of law and order within prison walls:

§ 95.1. Policy.
The Bureau is committed to a policy of maintaining law and order within its jurisdiction. It will not condone violations of the Commonwealth Penal Code, whether observed by its personnel or brought to its attention by complaint of inmates. At the same time, however, it shall be recognized that in the environment of a correctional institution not every criminal act by persons already under sentence for previous violations of the Commonwealth Penal Code requires or justifies additional prosecution, either in terms of imposing an additional sentence or imposing an additional burden upon the courts or costs upon a county. If the violation is minor, or where an additional sentence would be meaningless, as in the case with some criminal offenses committed by inmates already sentenced to life imprisonment, or a long term of years, justice may best be served by taking administrative action only. Other factual situations will require prompt investigation and prosecution.

This provision, read in conjunction with § 95.2 makes it clear that, in the Bureau’s view, both criminal and administrative sanctions are appropriate in some instances.

Turning to the constitutional prohibitions against successive trials, the prosecutions which may not be conducted twice are criminal prosecutions. There are many examples of administrative discipline or civil penalties being imposed upon individuals in addition to the imposition of criminal sanctions for the same conduct. Attorneys, In re Oxman, 496 Pa. 534, 437 A.2d 1169 (1981), cert. denied sub nom. Oxman v. Pennsylvania, 456 U.S. 975, 102 S.Ct. 2240, 72 L.Ed.2d 849 (1982), judges, In Re Lee, 336 So.2d 1175 (Fla. 1976), stockbrokers, People v. Barysh, 95 Misc.2d 616, 408 N.Y.S.2d 190 (N.Y.Sup.Ct.1978), insurance agents, In Re Friedman, 72 Pa.Cmwlth. 274, 457 A.2d 983 (1983), drivers, Keenan v. Hardison, 245 Ga. 599, 266 S.E.2d 205 (1980), vendors of alcoholic beverages, Alexander v. State, 129 Ga.App. 395, 199 S.E.2d 918 (1973), and corporations, United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980), have been subjected to discipline or civil penalties as well as criminal proceedings based on the same conduct. In criminal law, too, there are situations in which one transgression subjects a defendant to multiple proceedings. One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (forfeiture and criminal punishment); Commonwealth v. Pierce, 497 Pa. 437, 441 A.2d 1218 (1982) (probation revocation and criminal punishment); McClure v. Com., Pa. Board of Probation and Parole, 75 Pa.Cmwlth. 176, 461 A.2d 645 (1983) (parole revocation and criminal punishment); United States v. Barger, 458 F.2d 396 (9th Cir.1972) (forfeiture of bail and criminal punishment for bail jumping). The reason that these multiple proceedings do not constitute double jeopardy is that they serve different purposes. Professional discipline, whether it be lawyers, judges, stockbrokers or any other avocation licensed by the state, is not for the purpose of punishing the violator but is an effort to maintain the standards of the professions and to protect the public from persons unfit to engage in them. Administrative discipline of motor vehicle drivers is an attempt to protect the traveling public from the actions of those who endanger them on the highways.

So too, in prison disciplinary proceedings, the aim is not primarily to punish but to maintain the safe, secure, rehabilitative environment of the prison community. In rejecting a Double Jeopardy claim similar to the one before us, the Supreme Court of South Dakota stated what is the view of the vast majority of American jurisdictions:

[T]he purpose of the double jeopardy clause is to require that a person be subject only once to a criminal punishment designed to vindicate public justice. We do not consider administrative discipline imposed by penitentiary officials as constituting that type of proceeding. The administrative discipline imposed by penitentiary officials is designed to serve purposes essential to the orderly administration of the penitentiary. A formal criminal prosecution by the state on a charge of escape, together with the attendant publicity and potentially severe punishment, is designed to vindicate the vital interest that the citizens of this state have in enforcing the law which imposes a sanction for escaping from the penitentiary. True, some of the purposes of the two types of proceedings may overlap, e.g., the deterrent effect the administrative and penal sanctions have upon others who are contemplating escape; however, other purposes served by the action taken by penitentiary officials, e.g., the necessity of promptly confining a returned escapee in order to maintain security within the institution, may be different from the purposes served by the prosecution on the charge of escape brought in the same state____ [Under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974),] the officials of the state penitentiary are required to provide an inmate notice of and a hearing on the charges on which the officials intend to impose administrative discipline upon an inmate in the way of solitary confinement or the withholding of good time. It does not follow, however, that, because penitentiary officials must adhere to the[se] due process requirements ... before imposing solitary confinement or the loss of good time, such administrative discipline is perforce converted into a criminal proceeding for the purpose of the double jeopardy clause any more than it would follow that because the state must afford a motorist a hearing before his driver’s license is revoked such revocation proceedings are criminal in nature.
State v. Weekely, 90 S.D. 192, 240 N.W.2d 80, 82-83 (1976).

Moreover, many of the procedural rights inherent in the criminal process are not constitutionally required in prison disciplinary proceedings. There is no judge empowered to impose imprisonment, no right to a jury, no right to an attorney, nor compulsory process. See Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). In short, prison disciplinary proceedings are not criminal proceedings for double jeopardy purposes.

We also conclude that the sanction imposed by the Hearing Committee is not “criminal punishment” for double jeopardy purposes. In deciding this question, we are guided by several considerations articulated by the United States Supreme Court in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it can rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry____
Id. at 537-538, 99 S.Ct. at 1873, 60 L.Ed.2d at 468, quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644, 661-662 (1963).

At its core, the question is “whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Id. at 538, 99 S.Ct. at 1873, 60 L.Ed.2d at 468.

While the restraint imposed by the disciplinary process is “affirmative”, it is only different in degree, not in kind, from the type of sanction already lawfully imposed upon penitentiary inmates. Moreover, while scienter, retribution and deterrence are important in the disciplinary process, and while the conduct here in question is, by definition, a crime, we do not believe these factors dictate an outcome in appellant’s favor.

Historically, internal prison discipline has not been viewed as criminal punishment for double jeopardy purposes. Our research has disclosed an almost unbroken chain of precedent spanning at least sixty years holding that the Double Jeopardy clause does not bar the imposition of both criminal and administrative sanctions based on the same misconduct. Commonwealth v. Clark, 238 Pa.Super. 519, 361 A.2d 779 (1976) and U.S. v. Stuckey, 441 F.2d 1104 (3rd Cir.), cert. denied, 404 U.S. 841, 92 S.Ct. 136, 30 L.Ed.2d 76 (1971). Only one reported decision agrees with appellant’s proposed reading of the Double Jeopardy clause. In Re Lamb, 34 Ohio App.2d 85, 296 N.E.2d 280 (1973). However, that decision has not been followed, even in its own jurisdiction. State v. Procter, 51 Ohio App.2d 151, 367 N.E.2d 908 (1977); State v. Keller, 52 Ohio App.2d 217, 369 N.E.2d 798 (1976).

Furthermore, as noted above, prison discipline is not exercised primarily to punish, but for the alternative purpose of controlling behavior in order to maintain safety, security, order and to accomplish rehabilitation. Regulations of the Bureau of Corrections make this purpose explicit:

§ 95.101. Scope and purpose.

(a) Institutional life shall be governed by standards of behavior designed to promote correctional objectives and to maintain the general welfare of the institutional community. The laws of this Commonwealth, the rules and regulations of the Bureau of Correction, and of the institution, are part of the standards of behavior governing each institution.
(b) Behavior which deviates from such standards shall be handled by staff in the manner prescribed by these provisions. Such behavior shall be evaluated within the context of the total treatment plan of the individual, the effect of such behavior upon others, and its consequences for the good order of the entire institution.
(c) The methods used by staff shall be for the purpose of bringing about voluntary compliance with the standards prescribed. Sanctions shall be imposed only when necessary and in the degree necessary to regulate the unacceptable behavior.

37 Pa.Code § 95.101 (emphasis supplied).

These purposes fully comport with the need to carefully structure and regulate the sensitive and often volatile environment of the prison community. In Wolff v. McDonnell, supra, the Supreme Court recognized the uniqueness of this environment:

Prison disciplinary proceedings take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so. Some are first offenders, but many are recidivists who have repeatedly employed illegal and often violent means to attain their own ends. They may have little regard for the safety of others or their property or for the rules designed to provide an orderly and reasonably safe prison life. Although there are very many varieties of prisons with different degrees of security, we must realize that in many of them the inmates are closely supervised and their activities controlled around the clock. Guards and inmates co-exist in direct and intimate contact. Tension between them is unremitting. Frustration, resentment and despair are commonplace. Relationships among inmates are varied and complex and perhaps subject to the unwritten code that exhorts inmates not to inform on a fellow prisoner.

Id. at 561-562, 94 S.Ct. at 2977, 41 L.Ed.2d at 953. The need to adequately provide for the safety and good order of penal institutions is most certainly a legitimate governmental purpose.

Moreover, the punishment imposed is, at least in this case, not excessive in relation to the governmental need for security, order and rehabilitation among its prison population. Disobeying legitimate orders of prison guards and violently attacking them disrupts the orderly and controlled environment and threatens the security of guards and inmates alike. Left unchecked, such actions would seriously interfere with the ability of administration officials to perform the rehabilitative and other duties they are assigned. The conditions to which appellant was subjected, see n. 2, were calculated to impress upon him and others the need to refrain from violent, disobedient and disruptive behavior. Moreover, by segregating him from the rest of the prison population, the Hearing Committee was assured that appellant could not interrupt the successful treatment of those who did abide by the prison’s rules of conduct. We conclude, therefore, that the disciplinary sanction imposed upon appellant did not constitute criminal punishment within the meaning of the Double Jeopardy clause.

Finally, we note that we agree with observations made in the brief for the Commonwealth that should we accept appellant’s argument we would place prison authorities on the horns of an unwarranted dilemma. If they are required to make a choice between internal discipline and criminal prosecution, they would be unable to maintain necessary order and security in their institutions. Prison officials would be forced to permit conditions inside the walls to deteriorate, foregoing security, order, safety and rehabilitation in the hope that violent inmates would be brought to trial, convicted and incarcerated in an institution with greater security. Alternatively, the prison officials could impose internal disciplinary sanctions. However, as here, six months of restricted privileges may be the maximum penalty at their disposal. Should such action preclude subsequent criminal prosecution, in many instances, the interest of society as a whole in punishing infractions of criminal law will be left unprotected. We refuse to force such a choice upon prison officials.

For all of the foregoing reasons, we conclude that the trial court was correct in rejecting appellant’s contention that his having been disciplined by the penitentiary authorities precludes subsequent criminal prosecution or punishment under either Article I, § 10 of the Constitution of the Commonwealth of Pennsylvania or the Fifth and Fourteenth Amendments of the United States Constitution.

Order affirmed.

      . Appellant has also included in his brief the claim that a court trial on the criminal charges filed in this case would deny him "due process of law.” We do not, however, consider this question at this time on the basis of the statement in Commonwealth v. Klobuchir, 486 Pa. 241 n. 5, 405 A.2d 881, 884 n. 5 (1979).

      . At the hearing on his motion to quash, appellant described this “sentence" as “the most onerous conditions existing in the prison".
      As a segregated inmate I was confined to a cell twenty-three hours and forty-five minutes daily. Allowed only fifteen minutes of recreation. Permitted only one phone call a month. No visitation after 3:00 p.m. and only a one hour visitation period. I had practically no contact with other prisoners and was denied [the] opportunity to participate in prison work and recreation programs.
      N.T. 3/18/82 at 17.

      . The appellate courts of thirty-six states and nine of the federal circuit courts of appeals have, by reported decision, considered the issues before us and have concluded that the Double Jeopardy clause does not bar both criminal and prison disciplinary proceedings based on the same conduct.


author: OLSZEWSKI, Judge: HOFFMAN, Judge,

text:
    479 A.2d 595
    COMMONWEALTH of Pennsylvania v. Christopher M. NOLEN, Appellant.
    Superior Court of Pennsylvania.
    Argued April 5, 1984.
    Filed July 27, 1984.
    Petition for Allowance of Appeal Granted Jan. 7, 1985.

      George Shultz, Assistant Public Defender, Harrisburg, for appellant.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Appellant challenges his convictions for murder in the second degree, criminal conspiracy and robbery.

The convictions follow a shooting during an attempted robbery of Ritchie’s Bar and Tavern, Middletown, Pennsylvania. The incident left Carroll Ritchie, the 75 year old proprietor, dead.

The facts developed at trial show that on November 21, 1981, about 7 p.m., two armed men entered Ritchie’s Bar. They demanded money from Mr. Ritchie who was then working behind the bar. He refused and, approaching the two robbers, ordered them out of his establishment. Two shots flashed, then a third. Mr. Ritchie fell to the ground; the two robbers left.

The police recovered three spent bullets. One .38 caliber bullet had struck and killed Mr. Ritchie. Two others, a .32 caliber bullet and another .38 caliber bullet, had missed Mr. Ritchie. They were found in the area behind the bar.

On information supplied by David Crater, appellant and Evans (appeal docketed to No. 402 Harrisburg 1982) were arrested and charged with the crime.

Crater, who had driven the getaway car, testified that he had met with appellant and Evans early that evening. The three boys then had joined in the plan to commit a robbery that evening.

When they arrived at Ritchie’s, Crater “cased” the bar and reported what he had seen to the other two. Nolen and Evans disguised their faces with clothing and entered the bar. A few moments later, Crater heard two shots and then a third. Nolen and Evans ran back to the car. Crater quoted Nolen as saying that the man [Ritchie] had tried to be “like superman” and that he [Nolen] “just shot the old mother fucker.”

Nolen and Evans entered pleas of “not guilty.” Following trial, the jury returned verdicts of guilty, murder in the second degree. Timely post-verdict motions were filed and denied. Judge Morrison sentenced appellants November 10, 1982.

Appellant assigns as error the following. The trial court denied appellant his right to cross-examine Crater about other charges then pending against him in Dauphin County. In particular, the trial court refused to allow questions about Crater’s hope of leniency on those charges in exchange for his testimony in the case at bar.

The trial court admitted into evidence, over counsel’s objections, evidence about burglaries at the home of Warren Brubaker and that of Earl Herring.

We have examined the record and explored the relevant case law. Because we conclude that appellant’s contentions lack merit, we reject his claims and affirm the judgment below.

Scope of Cross-Examination of David Crater

The trial court limited appellant’s cross-examination of the state’s key witness, David Crater, then under indictment for other unrelated crimes, to questions about that witness’ role in the Ritchie incident.

Crater’s testimony gave the prosecution its case against Evans and Nolen. Crater alone could place the boys at Ritchie’s Bar that night. The patrons present during the robbery failed to identify either Nolen or Evans, and could not even state with certainty the robbers’ race or sex. Appellants presented an alibi defense. Evans took the stand and denied any connection with the Ritchie incident. Without Crater’s testimony, the prosecution had little evidence to link the boys to the crime. Thus, the Commonwealth’s case rose and fell on Crater’s testimony.

At the time Crater testified against the boys, he faced not only charges in the Ritchie case but also some 10 to 15 additional felony charges for burglary and conspiracy. Those charges had been filed in Dauphin County. All fell within the jurisdiction of the Dauphin County District Attorney’s Office. All lay undisposed when Crater took the stand.

The trial court refused to allow appellant to question Crater about these other crimes. Finding that the prosecution had promised Crater' nothing for his testimony, the court stated:

The defense would ask this Court to expand the exception to the general rule even further by allowing the jury to engage in idle speculation as to whether or not Crater might have an expectation of leniency in exchange for testimony. Lower court opinion at 8 (emphasis added).

The court declined to take that step.

The “general rule” bars admission of a witness’ uncon-victed bad acts. Stout v. Rassel, 2 Yeates 334 (Pa.1798); Commonwealth v. Jackson, 475 Pa. 604, 381 A.2d 438 (1977). The rule no more than restates the fundamental principle that a person is innocent until proven guilty. An arrest or indictment does not establish guilt. As Wigmore explains, “the fact of arrest or indictment is quite consistent with innocence____” 3A J. Wigmore, Evidence § 980a (Chadborn rev. 1970). Danger inheres that the fact-finder might mistake the allegations for acts, and confuse the acts with the man. Impeachment by unconvicted bad acts “carries the injustice of subjecting the witness to suspicion without giving him an opportunity to clear it away.” Id.

Nevertheless, proof of a witness’ unconvicted bad acts may come in to establish the witness’ interest in the immediate matter. Commonwealth v. Ross, 434 Pa. 167, 170, 252 A.2d 661, 663 (1969); Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973). “[T]he jury should be allowed to evaluate whether the witness testified for the prosecution to gain favorable treatment in his own case.” 454 Pa. at 452, 311 A.2d at 898.

A court will condition admission on two requirements: the existence of an indictment against the witness and evidence that the prosecutor could promise leniency. Commonwealth v. Joines, 264 Pa.Super. 281, 399 A.2d 776 (1979). The court below concluded that appellant’s proffered cross-examination of Crater failed “to stand muster” on that second requirement. Lower court opinion at 8.

The first requirement, existence of an indictment, serves to fix the witness’ interest in the matter. See Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969). The second, proof that the prosecutor could offer leniency, tests the basis of a witness’ expectations. A simple illustration is the case of a Commonwealth witness facing indictments in federal court. Admission of these federal indictments is disallowed for the purposes of impeachment in the state prosecution. Because the federal courts operate independently of their state counterparts, the state prosecutor lacks power to ensure leniency in the federal system. See Commonwealth v. Mulroy, 154 Pa.Super. 410, 36 A.2d 337 (1943).

The trial court reads a further stricture into this second requirement by demanding proof of a deal struck or favor won. Finding none, the lower court ruled that evidence of unconvicted bad acts could not come in against the witness Crater.

The lower court relied on a line of Pennsylvania cases: Commonwealth v. Joines, 264 Pa.Super. 281, 399 A.2d 776 (1979); Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973); Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969). On their facts, these cases support the lower court’s reading. In Joines, for instance, the Commonwealth’s key witness had pleaded guilty to fraud in an unrelated matter. During the pendency of the Joines trial, that witness was permitted to withdraw his guilty plea in order to participate in an ARD program. Similarly, in Coades, the defendant faced indictments for burglary, robbery and larceny and conspiracy. In exchange for testimony, his co-defendant was allowed to plead guilty only to conspiracy, a misdemeanor. His remaining felony indictments were nol prossed.

Appellant contends that “A criminal defendant has the right to cross-examine the Commonwealth’s star witness as to other pending indictments in order to prove that his current testimony is colored by his expectation of leniency by the Commonwealth.” Appellant’s Brief at 16.

He draws support from broad language in the cases: Commonwealth v. Coades, 454 Pa. at 452, 311 A.2d at 898 (“[W]e permit a jury to infer that a co-indictee’s testimony is biased because he may receive favorable treat-ment____”); Commomvealth v. Joines, 264 Pa.Super. at 285, 399 A.2d at 779 (“[N]ot only was the prosecutor able to promise [the witness] leniency, he provided him with leniency.”); see Lenahan v. Pittston Coal Min. Co., 221 Pa. 626, 629, 70 A. 884, 885 (1908) (“It is always the right of a party against whom a witness is called to show by cross-examination that he has an interest direct or collateral in the result of the trial____”).

Appellant asks us to apply that language to the facts of this case.

We agree with Wigmore that “the pendency of any indictment against a witness indicates indirectly a ... possibility of his currying favor by testifying for the state.” 3A J. Wigmore, Evidence § 967 (Chadbourn rev. 1970) (emphasis in original). However our research has failed to uncover a single case in which a Pennsylvania court has allowed cross-examination about a witness’ unconvicted bad acts — merely to establish that witness might hope for leniency.

Absent some showing of a bargain struck or favor won, the trial judge did not err in limiting the scope of cross-ex-animation to questions about Crater’s role in the instant case.

Although we ground our decision in state evidentiary law, we recognize the constitutional dimensions of the problem. In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court held that the Sixth and Fourteenth Amendments confer the right to cross-examine a prosecution witness about his vulnerable status as a probationer.

Chief Justice Burger wrote for the majority:

We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on [witness’] testimony which provided a crucial link in the proof of petitioner’s act. The accuracy and truthfulness of [witness’] testimony were key elements in the state’s case against petitioner. The claim of bias was admissible to afford a basis for an inference of undue pressure because of [witness’] vulnerable status as a probationer. . . . 415 U.S. at 318-319, 94

S.Ct. at 1111 (citations omitted).

However, Davis does not mandate wide-open cross-examination in every case. See id. at 321, 94 S.Ct. at 1112 (Stewart, J., concurring).

Appellant has a right to a fair trial, not a perfect one. We are satisfied that, if an error were made by the court below, that error was harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 163 (1978).

Appellant had one reason for attempting to cross-examine Crater about the other burglaries. He wished to alert the jury to Crater’s possible motives for testifying.

Reviewing the record, we find ample warnings to the jury to weigh Crater’s testimony carefully. The jury heard the role Crater played in the Ritchie incident. They knew he had participated in both the Herring and Brubaker burglaries. Most importantly, the court warned the jury that Crater’s testimony should be viewed with caution:

First, Crater’s testimony should be looked upon with disfavor as coming from a corrupt and polluted source. Experience has indicated that a person who is involved in the commission of a crime may falsely blame others because of some corrupt or wicked motive. On the other hand, the law recognizes that sometimes such a person may tell the truth about he and others committed a particular offense together so that the jury is cautioned that they should regard Crater’s testimony as coming from a polluted source. He has indicated his involvement in this case as an accomplice and there may be some question about what he thinks he may be charged with, but that is not the issue in this case. The fact is that he is an accomplice and at his trial we will decide what to do about him, but now it is sufficient to say that he is involved in these matters and you should regard his testimony as coming from a polluted source, and you should weigh it carefully, what he says to you in regard to what happened and after weighing his testimony you should accept it if you find it truthful only after employing caution and care. N.T. 606.

Compare Commonwealth v. Coades, 454 Pa. at 453-454, 311 A.2d at 898 (the trial judge erred in refusing to charge the jury that prosecution’s key witness was the accused’s accomplice).

Brubaker and Herring Burglaries

The trial court admitted testimony about two burglaries allegedly related to the Ritchie incident.

Over appellant’s objections, the jury heard proof that, on November 13, 1981, Nolen and Crater had burglarized the home of Warren Brubaker. A .38 caliber handgun taken in that burglary was identified by a ballistics expert as the murder weapon. Appellant Evans played no role in that crime.

The court also allowed evidence that the three, Crater, Nolen and Evans, had burglarized the home of Earl Herring on November 19, 1981. Although that burglary netted a .32 caliber handgun and .32 caliber ammunition, the prosecution failed to connect the fruits of that robbery to the Ritchie incident. The Herring gun was never recovered. Expert ballistics testimony established only that a .32 slug recovered from the scene of the murder could have been fired from the Herring gun.

No convictions were entered in these cases when the appellants came to trial on the Ritchie charges. For this reason, appellant argues that the prosecutor introduced the evidence of these burglaries for an impermissible purpose— to prove that appellants were evil men.

Again, we recognize that the general rule' bars admission of charges which have not resulted in convictions. See p. 3, supra. Evidence of these other burglaries, however, falls within the exceptions carved from that rule. The evidence was relevant and probative in the instant case. The actual need for the evidence outweighed the prejudice incident to its introduction. Commonwealth v. Bradley, 243 Pa.Super. 208, 212, 364 A.2d 944, 946 (1976).

Testimony about the Brubaker burglary tied appellant Nolen to the murder weapon. “Evidence of a crime other than the one for which the defendant is being tried is admissible if it tends to show the identity of the perpetrator of the crime charged in the trial.” Commonwealth v. Evans, 488 Pa. 38, 44, 410 A.2d 1213, 1216 (1980). The fact that the testimony implicated Nolen but not Evans does not bar its admission. See United States v. Snead, 447 F.Supp. 1321 (E.D.Pa.), affirmed 577 F.2d 730 (3rd Cir.), cert. denied 436 U.S. 930, 98 S.Ct. 2829, 56 L.Ed.2d 775 and 439 U.S. 851, 99 S.Ct. 156, 58 L.Ed.2d 154 (1978) (testimony clearly relevant and probative with respect to one defendant was properly admitted over co-defendant’s claim of prejudice).

The testimony about the Herring burglary, though less probative, was nonetheless admissible here. “[T]his testimony was clearly relevant as showing part of a chain, or sequence of facts, or part of the history of the event on trial____” Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975); see Commonwealth v. Detrie, 263 Pa.Super. 75, 397 A.2d 2 (1979).

Appellant’s claims of prejudice are met by curative instructions given at co-counsel’s request. See N.T. 623-625. The attack goes to the weight of the evidence not its admissibility. Commonwealth v. Williams, 454 Pa. 261, 311 A.2d 920 (1973).

We find no reversible error. The judgment below is hereby AFFIRMED.

HOFFMAN, J., filed a concurring statement.

HOFFMAN, Judge,

concurring:

I agree with the majority’s conclusion here that if there is no indication that a witness has been promised leniency by the Commonwealth, the witness may not be questioned in cross-examination about other indictments. I believe, however, that state decisional law is dispositive of this issue and that reliance, however slight, on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), and on the harmless error doctrine in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), is unnecessary.

      . See Pa.R.Crim.P., Rule 313, 42 Pa.C.S.A.; see also 42 Pa.C.S. § 8932 (Supp.1982).
      In Coades, Justice Manderino suggested that the fact of the nol prossed felony indictments might, in itself, provide strong incentive for a witness to testify. 454 Pa. at 451, 311 A.2d at 896.
      Entry of a nolle prosequi works a dismissal without prejudice. Commonwealth v. Reider, 255 Pa.Super. 163, 386 A.2d 559 (1978). The prosecutor, to reinstate those charges, need only refile them. See Commonwealth v. Diaz, 477 Pa. 122, 383 A.2d 852 (1978). A nol pross, then, affords the prosecutor considerable power over the witness.

      . We heed the suggestion in Coades that unconvicted bad acts might come in to show bias or interest — even where there has been no explicit agreement.
      We distinguish the cases on their facts. Further, a prosecutor enjoys plenary power to reinstate nol prossed charges. He could promise a witness peace. In contrast, the prosecutor here could promise Crater nothing without the court’s approval. See Pa.R.Crim.P., Rules 313 and 319, 42 Pa.C.S.A.

      . We note the disparity between the sentences received by appellants and those received by Crater. Evans, for his part in the Ritchie incident, received a mandatory life term for murder in the second degree and five (5) to ten (10) years concurrent on the burglary counts, to be served at the expiration of the life sentence. He was assessed costs, fined and ordered to make restitution.
      Crater received a six (6) to twelve (12) year sentence for his role in the Ritchie incident. For all burglaries, he received a sentence of two (2) to four (4) years, consecutive to the Ritchie sentence.
      A life sentence was imposed on Nolen for his conviction of murder in the second degree as a result of the robbery — death. He received concurrent sentences of five (5) to ten (10) years on the burglary counts. Those sentences • will begin at the expiration of the life sentence. He too was assessed costs, fined and ordered to pay restitution.

      . He testified also that a spent cartridge found in Nolen’s mother’s car . after the crime matched the design and brand of the Herring ammunition.


author: WIEAND, Judge:

text:
    479 A.2d 601
    Emily ABRAHAM, formerly Emily DiMaio and James E. Abraham, her husband, Appellants, v. Viola D. MIHALICH, Executrix of the Estate of Anna Ernestine Vitori, a/k/a Anne E. Vitori, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1984.
    Filed Aug. 3, 1984.

      Michael W. Zurat, Pittsburgh, for appellants.
    John F. Cambest, Pittsburgh, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   WIEAND, Judge:

In this appeal from a final equity decree refusing to set aside a quitclaim deed, the appellant grantors allege (1) that the deed was not delivered, and (2) that the acknowledgement was invalid because the grantors were unaware that a notary public was present and witnessed the deed’s execution. For reasons hereinafter set forth, we affirm.

Whether there has been a delivery of a deed is a question of fact to be determined from the evidence by the trial court. Mower v. Mower, 367 Pa. 325, 327, 80 A.2d 856, 858 (1951); In re Cray’s Estate, 353 Pa. 25, 27, 44 A.2d 286, 287 (1945); Chambley v. Rumbaugh, 333 Pa. 319, 321, 5 A.2d 171, 172 (1939). Whether there has been a delivery in fact depends upon the intention of the grantor as shown by his words and actions and by the circumstances surrounding the transaction. Loutzenhiser v. Doddo, 436 Pa. 512, 517, 260 A.2d 745, 747 (1970); City Stores Co. v. Philadelphia, 376 Pa. 482, 486, 103 A.2d 664, 666-667 (1954); Mower v. Mower, supra. To effect a delivery, it is not essential that the grantor give the deed directly to the grantee. Delivery is effected if the grantor relinquishes control and gives the deed to a third party either with specific instructions to deliver it to the grantee or if the attendant facts and circumstances indicate that the grantor intended that delivery be made by the third party to the grantee. Pronzato v. Guerrina, 400 Pa. 521, 527, 163 A.2d 297, 299-300 (1960); Chambley v. Rumbaugh, supra, 333 Pa. at 322-323, 5 A.2d at 173.

In the instant case, the chancellor made a finding that the grantor had delivered the deed by giving it, following execution, to Joseph Mihalich, the husband of the grantee executrix. Although there was a conflict in the testimony regarding this issue, the trial court resolved the conflict in favor of the grantee. Her evidence disclosed that she, Viola D. Mihalich, had been the executrix of her deceased mother’s estate. Among the assets of the estate was a piece of real estate in Forward Township, Allegheny County, which the executrix wished to sell. It was discovered, however, that an outstanding interest in the real estate was vested in the decedent’s sister, Emily DiMaio Abraham. Viola called her Aunt Emily and requested that she meet with the attorney for the estate so that the title defect could be corrected. Emily was too busy operating a tavern, however, and said that she was unable to go to the attorney’s office. It was arranged, therefore, that Viola’s husband, Joseph, would bring the deed to her tavern, together with a notary, to obtain execution thereof by Emily and her husband. Joseph Mihalich and William Skyrmes, a notary public, thereafter went to the Abraham’s tavern, where Emily Abraham and Joseph Mihalich had a discussion while Skyrmes observed from a distance estimated to be fifteen or twenty feet. After reading the deed, Emily said she would sign it because she didn’t own the property. After she had signed it, she called to her husband and he, too, signed the deed. The deed was then given to Joseph, who folded it and began to leave. Emily said she didn’t intend to cause trouble. The notary also left the tavern, and in the car, which had been parked in the parking lot, he attached his signature and affixed his seal to the acknowledgement. Although the appellants produced evidence that Emily had signed the deed in anticipation of having it reviewed by her attorney and that Joseph had grabbed it from her hands after the deed had been signed, this evidence was found to lack credibility by the trial judge. He was the trier of the facts, and it was his duty to resolve the conflict in the testimony. Pirilla v. Bonucci, 320 Pa.Super. 496, 500, 467 A.2d 821, 823 (1983). Because his findings are fully supported by competent evidence, they are binding upon a reviewing court. Loutzenhiser v. Doddo, supra, 436 Pa. at 518, 260 A.2d at 748; Daley v. Hornbaker, 325 Pa.Super. 172, 176, 472 A.2d 703, 705 (1984); Pirilla v. Bonucci, supra.

An acknowledgement is a formal declaration before an authorized official, by the person who executed the deed, that it is his free act and deed. Acknowledgement also refers to the certificate of the officer that the instrument has been so acknowledged. Black’s Law Dictionary (5th ed. 1979). See also: 1 Am.Jur.2d Acknowledgements § 1 (1962); 1 P.L.E. Acknowledgement § 1. An acknowledgement is a judicial act and is conclusive of the facts certified in the absence of fraud. Carr v. H. C. Frick Coke Co., 170 Pa. 62, 69-70, 32 A. 656, 662 (1895); Citizen’s Saving & Loan Ass’n v. Heiser, 150 Pa. 514, 24 A. 733 (1892). An acknowledgement is an essential prerequisite for recording a deed. Act of May 28, 1715, 1 Sm.L. 94, § 2, 21 P.S. § 42. See also: Trustees of the Baptist Church v. Boden, 6 Pa.D. & C.2d 378 (Mont.Co.1957). However, an acknowledgement is unnecessary to render a deed valid as between the parties. Faust v. Heckler, 359 Pa. 19, 22 n. 1, 58 A.2d 147, 149 n. 1 (1948); Maguire v. Preferred Realty Co., 257 Pa. 48, 51, 101 A. 100, 101 (1917). As between the parties, a deed is valid and binding if duly executed and delivered. Maguire v. Preferred Realty Co., supra.

In the instant case, it is unnecessary to review the trial court’s determination that the deed had been properly acknowledged. The appellant grantors admitted that they had signed the deed; and the trial court found upon competent evidence that the deed had been delivered. Under these circumstances, even a defective acknowledgement would not be a basis for invalidating the deed. The trial court properly refused to set it aside.

Affirmed.


text:
    479 A.2d 603
    COMMONWEALTH of Pennsylvania v. Patrick CARPENTER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 8, 1984.
    Filed Aug. 3, 1984.

      Samuel C. Stretton, West Chester, for appellant.
    Jill E. Baratz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

Patrick Carpenter, a/k/a James Merriman, was tried non-jury and was found guilty of burglary, criminal trespass, and criminal conspiracy in connection with a breaking and entering at a children’s clothing store in Philadelphia on the morning of Sunday, October 18, 1981. On direct appeal, after post-trial motions had been denied and sentence imposed, the only argument made is that the evidence was insufficient to sustain the finding of guilt. We reject this argument and affirm .the judgment of sentence.

In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth. The test is whether the evidence thus viewed, together with all reasonable inferences to be drawn therefrom, is sufficient to prove guilt beyond a reasonable doubt. See: Commonwealth v. Stoyko, 504 Pa. 455, —, 475 A.2d 714, 718 (1984); Commonwealth v. Hamm, 325 Pa.Super. 401, 407-408, 473 A.2d 128, 131 (1984); Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229 (1984). It is settled beyond question that while a conviction may not be based solely upon conjecture or surmise, the Commonwealth may rely upon circumstantial evidence to sustain its burden of proof. Commonwealth v. Pronkoskie, 498 Pa. 245, 248, 445 A.2d 1203, 1205 (1982); Commonwealth v. Gordon, 329 Pa.Super. 42, —, 477 A.2d 1342, 1347 (1984); Commonwealth v. Leatherbury, 322 Pa.Super. 222, 228, 469 A.2d 263, 266 (1983); Commonwealth v. McCrea, 308 Pa.Super. 284, 287, 454 A.2d 132, 133-134 (1982).

On the morning of October 18, 1981, police were summoned to Cramer’s Kiddy Shop, a retail clothing store on Frankford Avenue. The store, which was not then open for business, occupied a two-story building which was attached on both sides to other buildings. A row of buildings was situated in the shape of an L, and roofs of varying heights permitted passage over and across the same. Officer Frank Valerio arrived at the clothing store at or about 9:30 a.m., where he was joined by Officers Foglia and Bogart. They heard footsteps on the roof, and when Valerio and Foglia, together with the owner, went to the second floor, they discovered a hole, two feet by two feet, in a wall with access to the roof. A wooden exterior had been pried off, and someone had cut through an interior, white, plaster board wall. Valerio went out through the hole and found himself covered with a white plaster residue. He observed two males climbing down from the roof along the side of a nearby building. Bogart, who had previously gone to the rear of the store, observed appellant drop from a connecting roof. When Bogart attempted to apprehend appellant, a brief struggle ensued, but appellant was quickly subdued. His hands were exceptionally dirty, and his clothes were covered with a white plaster residue. He gave police a false name and address and gave an incorrect age. A juvenile was apprehended moments later by another officer as the juvenile reached ground level. Fourteen children’s snow suits and a crowbar were found in the alley behind the store; the snow suits had been removed, without consent, from the children’s store.

This evidence was sufficient to sustain the findings of the trial court. The Commonwealth showed considerably more than the fact of appellant’s presence at the scene of the crime and his attempt to evade apprehension. See and compare: Commonwealth v. Keblitis, 500 Pa. 321, 324, 456 A.2d 149, 151 (1983); Commonwealth v. Goodman, 465 Pa. 367, 370-371, 350 A.2d 810, 811-812 (1976); Commonwealth v. Stores, 317 Pa.Super. 109, 117, 463 A.2d 1108, 1112-1113 (1983); Commonwealth v. McCrea, supra, 308 Pa.Super., at 287, 454 A.2d at 134. Police interrupted a burglary in progress on a Sunday morning and observed appellant jumping from the roof of an adjoining building. After he had struggled with the arresting officer and had been subdued, his clothing was found to be covered with a plaster residue similar to that accumulated by Officer Valerio when he went through the hole in the wall through whieh the burglars had gained entrance to the store. From this evidence, the fact finder could infer that appellant had been a participant in the burglary and not an innocent bystander. See: Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972) (rooftop apprehension at or near time of burglary); Commonwealth v. Viall, 278 Pa.Super. 613, 420 A.2d 710 (1980) (same); In the Interest of Gonzalez, 255 Pa.Super. 217, 386 A.2d 586 (1978) (same). See also and compare: Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983) (mud on shoes, linking defendant to burglary). Cf. Commonwealth v. Desabetino, 317 Pa.Super. 561, 464 A.2d 465 (1983) (proximity to premises and stolen goods outside building plus flight); Commonwealth v. Swift, 291 Pa.Super. 90, 435 A.2d 234 (1981) (defendant linked to burglary by tracks from scene and false statements). Moreover, appellant’s attempt to conceal his true identity following apprehension in this case permitted an additional inference that appellant’s acts were committed with a consciousness of guilt. See: Commonwealth v. Glass, 486 Pa. 334, 346-347, 405 A.2d 1236, 1242 (1979) (plurality opinion); Commonwealth v. Cristina, 481 Pa. 44, 53-54, 391 A.2d 1307, 1312 (1978) (plurality opinion), cert. denied, 440 U.S. 925, 99 S.Ct. 1255, 59 L.Ed.2d 479 (1979); Commonwealth v. Calloway, 313 Pa.Super. 173, 181, 459 A.2d 795, 799 (1983).

Under these circumstances, the trier of the facts could reasonably conclude that appellant had entered the clothing store and had participated in the removal therefrom of the children’s snow suits. The court could also find that at least one other person had acted in concert with appellant to enter the store and remove therefrom that merchandise which was found in the alley.

The judgment of sentence is affirmed.


text:
    479 A.2d 606
    COMMONWEALTH of Pennsylvania v. Joseph M. ZAZO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1984.
    Filed Aug. 3, 1984.
    Petition for Allowance of Appeal Denied March 5, 1985.

      Scott E. Lash, Wyomissing, for appellant.
    George C. Yatron, District Attorney, Reading, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

Joseph M. Zazo entered pleas of guilty to separate charges of burglary and robbery and was sentenced to concurrent terms of not less than ten nor more than twenty years in prison. He did not file timely appeals from the judgments of sentence. He is presently before this Court by authority of an order of the Court of Common Pleas of Berks County permitting an appeal nunc pro tunc. On this direct appeal, his only contention is that he should be permitted to file a motion to withdraw his pleas of guilty under Pa.R.Crim.P. 320 nunc pro tunc, i.e., as if filed prior to sentencing. For reasons hereinafter set forth, we reject appellant’s request and affirm the judgment of sentence.

Appellant’s request to withdraw his plea of guilty under Pa.R.Crim.P. 320 has never been made to the trial court. It is made for the first time in the brief which his counsel has filed in this Court. This brief, however, contains no reason that would be sufficient to support a motion to withdraw appellant’s guilty pleas, either before or after sentencing. His only contention is that guilty plea counsel was ineffective for failing to tell him that he had a right, under Pa.R.Crim.P. 320, to make such a request. The language of the brief concedes appellant’s guilt and complains only that the sentences were excessive. Thus, at page 19 of appellant’s brief the following appears:

The purpose of the above discussion was not to make excuses for the acts committed by the Defendant or to rationalize his behavior. The Defendant has committed crimes of a serious nature and society has the right to expect that these crimes will not go unpunished. However, while punishment may be in order, excessive punishment is a miscarriage of justice.

In support of his contention that he should now be permitted to file a motion to withdraw his pleas as though such motion had been filed prior to sentencing, appellant asserts that his guilty plea counsel was ineffective for failing to tell him that he could file a pre-sentencing motion under Pa.R. Crim.P. 320 to withdraw his guilty pleas.

“Knowledge of the procedural aspects of the right to withdraw the guilty plea does not bear upon whether it was voluntary in the first instance.” Commonwealth v. Chumley, 482 Pa. 626, 639-640, 394 A.2d 497, 504 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979). This Court pronounced the same principle even more forcefully in Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983), when it said: “It would be absurd to hold that a guilty plea is involuntary or unknowing if the defendant is not told beforehand that after entering the plea he will be allowed to withdraw it.” Id., 323 Pa.Superior Ct. at 198, 470 A.2d at 549. It would be equally absurd to hold that guilty plea counsel is required, upon threat of being found ineffective, to advise a client who has elected to plead guilty that he can proceed under Rule 320 to withdraw the plea prior to sentencing. Such advice is not required to permit a defendant to enter a knowing and intelligent plea of guilty. Counsel is not required to give his client a crash course in criminal procedure or advise him of all rules which would become applicable in the event of future contigencies which might, or might not, occur. Appellant’s request for remand in order to file nunc pro tunc a motion to withdraw his pleas of guilty, therefore, must be denied.

We have considered the merits of appellant’s request only because the Commonwealth failed to challenge the propriety of the order allowing a belated appeal to this Court. Our independent review of the record, however, discloses an irregularity which cannot readily be ignored. Appellant was sentenced on April 28, 1981. A “motion to modify and/or reconsider sentence” was denied on April 30, 1981. An appeal filed on May 29, 1981 was dismissed as untimely by this Court sua sponte on June 9, 1982. The order provided that it was “without prejudice to petitioner’s right to seek appropriate post-conviction relief, including right to file post-trial motions and notice of appeal Nunc Pro Tunc.” Meanwhile, on May 25, 1982, appellant had filed pro se a second petition for modification of sentence. On August 2, 1982, he filed a “notice of appeal” to “the Berks County Court of Pennsylvania ” and a motion for appointment of counsel. He alleged that his trial counsel had been ineffective for failing to file “post-trial motions” and/or a motion to modify the sentence. On August 18, 1982, the sentencing judge appointed counsel to represent appellant and issued a rule on the District Attorney “to show cause why the defendant should not be permitted to file a petition for modification of sentence nunc pro tunc.” After counsel had been appointed, he did not file an amended petition; but when the District Attorney failed to file an answer to the pro se petition and rule to show cause, appellant’s counsel, on September 7, 1982, petitioned the court and obtained an order making the rule absolute. The petition was presented to a different judge, however, and the order which he signed was as follows:

... it is ordered that the Rule to show cause why the Defendant should not be permitted to file a Petition for Modification of Sentence and Appeal Nunc Pro Tunc ... is made absolute.

Counsel immediately caused an appeal to be filed in the Superior Court from the judgment of sentence imposed on April 28, 1981.

The rule which had been issued on August 18, 1982 directed the District Attorney to show cause why appellant “should not be permitted to file a petition for Modification of Sentence Nunc Pro Tunc.” The rule said nothing about an appeal to the Superior Court. Appellant’s pro se petition had requested the right to file an appeal in the Berks County Court, not a right to file a direct appeal to the Superior Court. Moreover, the petition contained no averments that would have supported a request for an appeal to this Court nunc pro tunc. Thus, the order allowing an untimely appeal to this Court was unsupported by appellant’s pro se petition and was an inappropriate response to the rule issued by the court.

It is readily apparent that an appeal from a judgment of sentence filed more than a year after the sentence is untimely. The time cannot be extended by agreement of the parties or as a matter of grace. West Penn Power Co. v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975); Commonwealth v. Horner, 449 Pa. 322, 324, 296 A.2d 760, 762 (1972); Commonwealth v. Gregory, 309 Pa.Super. 529, 531, 455 A.2d 1210, 1211 (1983); Maxton v. Philadelphia Housing Authority, 308 Pa.Super. 444, 449, 454 A.2d 618, 620 (1982). It cannot properly be extended merely by a District Attorney’s default in failing to respond to a rule to show cause why the petitioner should not be permitted to file a petition for modification of sentence nunc pro tunc. An order permitting an untimely appeal without good cause, therefore, was irregular.

The judgment of sentence is affirmed.

      . Zazo also entered pleas of guilty to related charges of criminal trespass, theft by unlawful taking, theft by receiving stolen property and conspiracy.

      . Zazo also entered pleas of guilty to theft by unlawful taking, recklessly endangering another person and conspiracy.