author: WIEAND, Judge:

text:
    489 A.2d 875
    Vincent CUNNINGHAM and Deborah Marcus, Appellants, v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, A SUBSIDIARY OF PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee.
    Superior Court of Pennsylvania.
    Argued July 23, 1984.
    Filed March 8, 1985.
    Petition for Allowance of Appeal Denied July 25, 1985.

      Allen L. Feingold, Philadelphia, for appellants.
    Charles W. Craven, Philadelphia, for appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, WIEAND, CIRILLO, DEL SOLE, MONTEMURO, JOHNSON and POPOVICH, JJ.
   WIEAND, Judge:

Vincent Cunningham, the insured operator of a motor vehicle, and Deborah Marcus, a passenger, were injured in a one car accident. Alleging that they had been forced off the road by an unknown motorist who did not stop, Cunningham and Marcus submitted uninsured motorist claims to Cunningham’s insurance carrier, Prudential Property and Casualty Insurance Company (Prudential). In a complaint filed in assumpsit, the claimants alleged that Prudential had breached the arbitration clause in its policy by failing, upon demand, to appoint an arbitrator. Because Prudential breached its agreement to arbitrate, claimants contended, the insurer became liable to them in damages. Those damages, they alleged, were the same as and were to be measured by the damages which might have been recovered against the alleged but unidentified third party tortfeasor. Their right to recover damages for their personal injuries, they contended, depended solely upon proof that Prudential had breached its contract by failing to make timely appointment of an arbitrator. Prudential filed preliminary objections which included a demurrer to the complaint. The trial court sustained the demurrer and dismissed the complaint without prejudice to claimants’ right to commence an action to compel arbitration. Claimants appealed. We affirm.

Initially, it is necessary to address Prudential’s motion to quash the appeal on grounds that the trial court’s order is not final and, therefore, not appealable. Because appellants have not been precluded from pursuing their claim before arbitrators, it is argued, they have not been put out of court. Although the argument appears to have superficial appeal, closer examination reveals its lack of merit. Appellee’s argument fails to recognize that the cause of action alleged by appellants, i.e., that they are entitled to be compensated for their personal injuries because Prudential failed to make a timely appointment of an arbitrator, has been decided finally. On the cause of action which appellants alleged in their complaint, they are out of court. It is true, of course, that they may have a separate cause of action to compel Prudential to arbitrate the merits of an asserted claim for uninsured motorist benefits under the policy of insurance. On their attempt to connect their personal injuries causally to Prudential’s alleged refusal to arbitrate, however, they are out of court. The trial court has held that claimants’ personal injuries are not related causally and damages therefor cannot be collected from Prudential merely because it refused to appoint an arbitrator to determine the validity of appellants’ uninsured motorist claims. This is an order which is final and appealable. Cf. Board of Education v. Philadelphia Federation of Teachers, Local No. 3, 464 Pa. 92, 95-96 n. 2, 346 A.2d 35, 37 n. 2 (1975) (order final and appealable where it sustained demurrer to complaint in equity and directed case to arbitration).

Preliminary objections in the nature of a demurrer admit as true all well pleaded, factual averments and all inferences fairly deducible therefrom. Klein v. Raysinger, 504 Pa. 141, 144, 470 A.2d 507, 508 (1983). Conclusions of law, however, are not admitted by a demurrer. Consumers Education and Protective Association v. Nolan, 470 Pa. 372, 379, 368 A.2d 675, 679 (1977). It is in this light that the complaint must be examined to determine whether it sets forth a cause of action which, if proved by the plaintiff, would entitle him to the relief he seeks. Rose v. Wissinger, 294 Pa.Super. 265, 270, 439 A.2d 1193, 1196 (1982), quoting Sinn v. Burd, 486 Pa. 146, 149-150, 404 A.2d 672, 673-674 (1979). If the plaintiff does set forth a cause of action on which he is entitled to relief upon proof, the demurrer cannot be sustained. Id. Conversely, a preliminary objection in the nature of a demurrer is properly sustained where the complaint has failed to set forth a cause of action. Id. See also: Rubin v. Hamot Medical Center, 329 Pa.Super. 439, 441, 478 A.2d 869, 870 (1984); Greenspan v. United Services Automobile Association, 324 Pa.Super. 315, 318-321, 471 A.2d 856, 857-858 (1984).

Prudential’s policy contained an arbitration clause as follows:

The actual amount we’ll pay under this part of the policy will be determined by agreement between the insured person and us. If no agreement can be reached, the matter will be submitted for arbitration according to the provisions of the Pennsylvania Arbitration Act of 1927. Upon written demand of either party, each party will select an arbitrator. If the two arbitrators can’t agree on a third arbitrator within 30 days, at the request of either party, the court will appoint a third arbitrator. Within a reasonable time after selection of the third arbitrator, the arbitrators will decide the matter in question. The decision in writing of any two of the three arbitrators will be binding on both parties. Each party will pay its own arbitrator and will share equally the cost of the third arbitrator and the cost of the arbitration. Lawyers’ fees and fees paid to medical or other expert witnesses aren’t considered to be costs of arbitration. These fees are paid by the party incurring them. Unless the parties agree on some other location, the arbitration will take place in the county where the insured person lives and according to the usual court rules of procedure and admission of evidence.

This provision is clear. Uninsured motorist claims, if agreement cannot be reached by the parties, must be submitted to statutory arbitration. Recovery against Prudential cannot be had under its policy unless there has been (1) agreement or (2) arbitration. These are conditions precedent to each appellant’s right to be compensated according to the uninsured motorist feature in Prudential’s policy. Without prior compliance with one or the other, Prudential cannot be made to pay an uninsured motorist claim. In the instant case, the averments of the complaint disclose that there has been neither agreement nor arbitration with respect to appellants’ claims.

“It is the policy of the law to favor the settlement of disputes by arbitration and to promote the swift and orderly disposition of claims.” Children’s Hospital of Philadelphia v. American Arbitration Association, 231 Pa.Super. 230, 234, 331 A.2d 848, 850 (1974). See also: Allegheny Home Improvement Corp. v. Franklin, 308 Pa.Super. 225, 230, 454 A.2d 103, 105 (1982). Therefore, “court proceedings should not be read into the agreement to arbitrate.

... The arbitration clause ... indicates that the parties contemplated one method, and one method only, for the resolution of disputes under [the uninsured motorist coverage]. That method was arbitration and all such disputes [must] be so decided.” National Grange Mutual Insurance Co. v. Kuhn, 428 Pa. 179, 185, 236 A.2d 758, 760-761 (1968) . Arbitration, it seems clear, is a condition precedent to recovery of uninsured motorist benefits under the policy of automobile insurance issued by Prudential. This condition has not occurred. Therefore, appellants complaint fails to state a cause of action.

If a party to an arbitration agreement refuses to submit a dispute to arbitration, a court will order the parties to proceed to arbitration. 42 Pa.C.S. § 7304(a). Alternatively, some courts have held that an insurer’s breach of an agreement to arbitrate constitutes a waiver by the insurer of the arbitration requirement. See: Jacobs v. Detroit Automobile Inter-Insurance, 107 Mich.App. 424, 430, 309 N.W.2d 627, 630 (1981); Kelley v. Citizens Mutual Insurance Co., 19 Mich.App. 177, 181, 172 N.W.2d 537, 540 (1969); Collicott v. Economy Fire & Casualty Co., 68 Wis.2d 115, 119, 227 N.W.2d 668, 671 (1975). Under these decisions, the effect of such a waiver is to permit the insured to litigate the merits of his claim in a court of law. However, the waiver does not create a new cause of action against the insurer in which the validity of the insured’s claim is conclusively presumed and the only defense available to the insurer is proof that it has not breached its agreement to arbitrate. The courts in Pennsylvania, moreover, have not followed this practice. See: National Grange Mutual Insurance Co. v. Kuhn, supra. When the parties have agreed to resolve all disputes by arbitration, arbitration is the procedure which must be followed. Id.

After the alternatives available to the claimants have been fully explored, it is eminently clear that those alternatives do not include an action at law for breach of an agreement to arbitrate in which the insurer is conclusively presumed to be liable to pay an uninsured motorist claim without regard for the merits thereof. Our research has disclosed no instance in which a court has held that the consequence of a refusal to submit a disputed claim to arbitration is liability on the disputed claim. That is the cause of action asserted by claimants in this action; and that is the cause of action we reject.

Order affirmed.

      . We do not now decide that there can be no circumstances under which a party may be allowed to recover special damages because of another party’s refusal to arbitrate. In the absence of special circumstances, however, damages will likely be nominal. It is difficult to comprehend in what manner a party can be damaged by another’s failure to arbitrate when the former has available to him the means by which to compel arbitration. See: Cities Service Co. v. Gardinier, 344 A.2d 254 (Del.Super.Ct.1975), appeal dismissed on other grounds, 349 A.2d 744 (Del.Sup.Ct.1975).

      . We are advised that Prudential appointed an arbitrator prior to the trial court's order sustaining preliminary objections to the complaint and is agreed to arbitrate appellants' claims, although it strenuously denies any liability therefor.


source: Caselaw Access Project

license: Public Domain

text:
    489 A.2d 879
    COMMONWEALTH of Pennsylvania v. Larry CAPERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1984.
    Filed March 8, 1985.
    Petition for Allowance of Appeal Denied Sept. 6, 1985.

      Douglas M. Johnson, Assistant Public Defender, Thorn-dale, for appellant.
    J. William Ditter, III, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and MONTGOMERY, JJ.
   WIEAND, Judge:

On March 1, 1982, at or about 1:45 p.m., a man pushed his way at knifepoint into a Lakeside apartment in Cheltenham, Montgomery County. There he blindfolded, bound, undressed, assaulted, terrorized and robbed the female occupant. When the intruder left about 3:05 p.m., the occupant was able to free herself and call the police. She described her assailant as a negro male, approximately five feet, seven inches in height, stocky, light skinned, having dark eyes and eyebrows, and wearing a gray jacket. The description, except for the dark eyes and eyebrows, was broadcast.

The broadcast was heard by Henry Schramm and Harrison Marsteller, members of the Philadelphia Police Department, who were on routine patrol in the City of Philadelphia, approximately five blocks from the Lakeside Apartments. At or about 3:30 p.m., they observed a black male, later identified as Larry Capers, running toward them from the direction of Cheltenham. Because the man matched the description which had been broadcast by police radio, the police stopped him. He was sweating profusely, was out of breath, had blood on one hand and was carrying a plastic bag. A pat down of Capers’ outer clothing revealed a hard object which, upon withdrawal, proved to be a folding knife with five inch blade. Red stained linens were found inside the bag which Capers had been carrying.

Capers was placed under arrest and returned by police van to the Lakeside Apartments. The victim of the earlier crimes refused to allow Capers into her apartment, but while he stood outside and she looked through a window, she was able to identify Capers as her assailant. She also identified the knife which had been removed from Capers’ person and the gray jacket which he had been wearing at the time of the crime.

Capers was tried nonjury and was found guilty of robbery, simple assault, indecent assault, terroristic threats, recklessly endangering another person, theft of moveable property, and possession of an instrument of crime with intent to employ it criminally. He was sentenced to a term of imprisonment for seven to fifteen years on the robbery conviction and to a consecutive term of one to three years for possession of an instrument of crime. Sentence for indecent assault was suspended. On direct appeal, Capers contends that various items of physical evidence, including the knife, were products of an illegal arrest and/or unlawful search and should, therefore, have been suppressed. He also contends that the on-the-scene identification by the victim was unduly suggestive, that he did not voluntarily and intelligently waive his right to be tried by a jury, that the evidence was insufficient to sustain a conviction for indecent assault, and that his sentence was excessive. There is no merit in any of these contentions. However, the indefinitely suspended sentence for indecent assault was invalid and will be vacated.

If police have reasonable suspicion that criminal activity is afoot, they may make a temporary, investigatory stop even though they lack probable cause to make an arrest. Commonwealth v. O’Neal, 321 Pa.Super. 323, 325, 468 A.2d 500, 502 (1983). If the police reasonably believe their safety is in jeopardy, a limited search for weapons is justified. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). If incriminating evidence establishing probable cause for arrest is discovered after the temporary stop, a lawful arrest may then be made. Commonwealth v. Webster, 291 Pa.Super. 271, 276-277, 435 A.2d 1217, 1219-1220 (1981).

We agree with the suppression court that the temporary stop and subsequent arrest of Capers in this case were lawful. The information available to the police justified at least an investigatory stop. Moreover, a weapons search was warranted because the investigating police knew that the perpetrator of the robbery had been armed with a knife. Because the plastic bag was easily within Capers reach, it was also proper to examine it for a weapon. By the time Capers was placed under arrest, the police clearly had probable cause therefor. The suppression court properly refused to suppress the knife removed from Capers’ person, the red stained linen removed from the bag, and other physical evidence seized by the police. These items could properly be used as evidence.

The victim’s identification of Capers was also admissible. Prompt on-the-scene identifications are generally deemed reliable and not subject to suppression in the absence of a special element of unfairness. Commonwealth v. O’Neal, supra, 321 Pa.Superior Ct. at 327, 468 A.2d at 503. Although the victim in this case had been able to see her attacker only for a brief period as he pushed her into the apartment, she had been able to give the police an accurate description of him. She testified that when Capers was returned to her apartment she recognized him “from the jacket that he was wearing, and from his facial description, because he had the same eyes, eyebrows, and his coloring, the same height — it was the same man.” Her identification was positive. The suppression court did not err in refusing to suppress the on-the-scene identification or the in-court identification.

Capers does not direct us to any specific facts to support the contention that his waiver of jury trial was involuntary. Our review of the extensive waiver colloquy does not disclose any deficiency or suggest an involuntary waiver. Therefore, we reject Capers’ contention that his decision to waive jury trial was involuntary.

In support of his contention that the evidence does not support a conviction for indecent assault, Capers argues that there was a failure of evidence to show that his acts were committed to arouse or gratify sexual desire on the part of himself or his victim. He contends that his intent was to rob and was not sexually motivated.

In reviewing the sufficiency of the evidence in a criminal case, we view all the evidence in a light most favorable to the Commonwealth and draw all reasonable inferences therefrom in favor of the Commonwealth. Commonwealth v. Carter, 329 Pa.Super. 490, 496, 478 A.2d 1286, 1288 (1984). We then determine whether the evidence proved each element of the offense beyond a reasonable doubt. Id.

A person commits an indecent assault if he “has indecent contact with another not his spouse, or causes such other to have indecent contact with him ... if: (1) he does so without the consent of the other person____” 18 Pa.C.S. § 3126(1). Indecent contact is defined as “[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.” 18 Pa.C.S. § 3101.

While the victim was lying on her bed, bound hand and foot, Capers pulled down her pants and underwear and placed a can of mace between her legs. He threatened to push the mace can into her rectum and spray it if she would not tell him the code number of her MAC card. She told him the number. Later, he removed his victim’s pants and underwear completely. He also unfastened her bra, pulled her blouse and bra up, and touched parts of her body. Several times Capers told the victim that he should rape her. He also told her that she could either participate in sexual intercourse with him or tell him the type of car she owned and where it was parked. Again, she disclosed the desired information.

The provisions of 18 Pa.C.S. § 3126 were derived from section 213.4 of the Model Penal Code. The separate crime of indecent assault was established because of a concern for the outrage, disgust, and shame engendered in the victim rather than because of physical injury to the victim. Injury to the person is the harm intended to be prevented by other assault offenses. Comment to Model Penal Code § 207.6 tentative draft no. 4, p. 292 (1955). Capers’ actions, the trial court could find, were sexually oriented and were both outrageous and humiliating to the victim. Appellant’s repeated threats of rape, the placement of the mace can, the removal of the victim’s pants and underwear even after she had disclosed the code number of her account, and the touching of parts of her body all suggested that Capers’ conduct was motivated, at least in part, by an intent to arouse or gratify sexual desire on the part of himself or his victim. The evidence, therefore, was adequate to support the trial court’s finding.

Finally, we reject Capers’ argument that the sentence imposed by the court was excessive. The sentence was within statutory limits, and, considering the seriousness of appellant’s offense, his prior criminal record, the fact that he was on parole when these offenses were committed, and his need for correctional treatment, it cannot be said that the sentence constituted an abuse of discretion.

An indefinitely suspended sentence, however, is not a legal disposition. Commonwealth v. Ferrier, 326 Pa.Super. 331, 473 A.2d 1375 (1984). Therefore, we will vacate the suspended sentence imposed for indecent assault.

The suspended sentence imposed for indecent assault is vacated. The judgments of sentence imposed for robbery and possession of an instrument of crime are affirmed.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 2701.

      . 18 Pa.C.S. § 3126.

      . 18 Pa.C.S. § 2706.

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 3921(a).

      . 18 Pa.C.S. § 907(a).

      . The trial court said at sentencing that it did not intend to impose further imprisonment than that imposed for robbery and possession of an instrument of crime.


author: CIRILLO, Judge:

text:
    489 A.2d 883
    Andrew M. KOVACH and Ann A. Kovach, His Wife, Appellants, v. GENERAL TELEPHONE COMPANY OF PENNSYLVANIA, a Pennsylvania Corporation.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1984.
    Filed March 8, 1985.

      Patrick J. DeMay, Bethel Park, for appellants.
    Daniel W. Rullo, Somerset, for appellee.
    Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   CIRILLO, Judge:

This is an appeal by appellants Andrew and Ann Kovach from a judgment entered by the Court of Common Pleas of Somerset County. We affirm.

Early in the 1960s, General Telephone Company of Pennsylvania (GTE) contracted with radio station WWBR, Inc., to erect telephone poles and transmission lines that would connect the station with its antenna facility. In 1963, GTE contacted Mary Bosak, predecessor in title to the land in question, and sought permission to erect telephone poles and transmission lines on her property. Mrs. Bosak gave GTE oral permission and, at considerable expense and labor, the equipment was installed on the property.

The Kovachs began renting the Bosak property in 1965, and four years later purchased it. At trial, appellants repeatedly acknowledged their awareness of the telephone poles and transmission lines on the property at the time of the purchase.

In 1980, the Kovachs filed a complaint in equity against GTE and WWBR, alleging a continuous trespass because of the presence of the equipment. Appellants demanded removal of the poles and lines and damages for the trespass.

All parties filed motions for summary judgment. The chancellor granted WWBR’s motion on the basis of GTE’s admission that the radio station played no role in “the selection of sites for the poles, the acquisition of the required rights in the property selected, or the installation of the poles and line.” The motions by appellants and GTE were denied.

Following a trial before the chancellor in equity, a decree nisi was entered dismissing the Kovachs’ cause of action and assessing them the costs appellee incurred in defending the action. Exceptions to the decree were argued and dismissed by the court en banc, and judgment was entered for GTE.

In equity matters, our scope of review is restricted. The chancellor’s finding of fact, affirmed by the court en banc, have the effect of a jury verdict and will not be reversed on appeal if adequate evidence is present to support them and they are not premised on erroneous inferences and deductions or an error of law. Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976); Onorato v. Wissahickon Park, Inc., 430 Pa. 416, 244 A.2d 22 (1968). Thus, our function is not to substitute our view for the chancellor’s but, rather, to determine whether a judicial mind, on due consideration of the evidence as a whole, could reasonably have reached the conclusion of the chancellor. Aiken Industries, Inc. v. Estate of Wilson, 477 Pa. 34, 383 A.2d 808 (1978); Payne v. Kassab, 468 Pa. 226, 361 A.2d 263 (1976). Nevertheless, conclusions of law or fact, being derived from nothing more than the chancellor’s reasoning for underlying facts and not involving a determination of credibility of witnesses, are reviewable. Felmlee v. Lockett, 466 Pa. 1, 351 A.2d 273 (1976); In Re Estate of Thomas, 463 Pa. 284, 344 A.2d 834 (1975).

Krosnar v. Schmidt Krosnar McNaughton, 282 Pa.Super. 526, 534, 423 A.2d 370, 374 (1980). See also Village Beer & Beverage v. Vernon D. Cox & Co., 327 Pa.Super. 99, 475 A.2d 117 (1984); Dailey’s Chevrolet v. Worster Realities, Inc., 312 Pa.Super. 275, 458 A.2d 956 (1983).

A license is generally considered a “mere personal privilege to perform an act or series of acts on the land of another.” Dailey’s Chevrolet v. Worster Realities, Inc., supra, 312 Pa.Superior Ct. at 281, 458 A.2d at 960 quoting Hennebont Co. v. Kroger Co., 221 Pa.Super. 65, 69, 289 A.2d 229, 231 (1972). While a license may be created by a written instrument, it is usually created orally, Hennebont Co. v. Kroger Co., supra, and it conveys no interest or estate in land. Thompson v. Commonwealth Department of Highways, 214 Pa.Super. 329, 257 A.2d 639 (1969) (allocatur denied).

Licenses are ordinarily revocable at will. Pennsylvania, however, has adopted the equitable doctrine of irrevocable licenses. This doctrine, based upon the equitable principle of estoppel, recognizes that, “if a license, ... is given by parol, then followed by the expenditure of money, on the faith of the parol agreement, it is irrevocable and is treated as a binding contract.” Cole v. Ellwood Power Co., 216 Pa. 283, 289, 65 A. 678, 680 (1907). See also Dailey’s Chevrolet v. Worster Realities, Inc., supra; Harkins v. Zamichieli, 266 Pa.Super. 401, 405 A.2d 495 (1979). Once irrevocability is established, “successors-in-title take subject to an irrevocable license if they had notice of the license before the purchase.” Harkins v. Zamichieli, supra, 266 Pa.Superior Ct. at 407-08, 405 A.2d at 498. Messinger v. Washington Township, 185 Pa.Super. 554, 137 A.2d 890 (1958).

The first issue appellants present for our review concerns a claim which was not raised in the trial court. Appellants contend that GTE failed to prove the elements of an irrevocable oral license. Specifically, the Kovachs argue that Bosak was one of three owners of the property in question, and, that acting alone, she did not have the authority to grant the license. Matters raised for the first time on appeal are not properly preserved for appellate review and will not be considered. Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 473 A.2d 584 (1984); Novoseller v. Royal Globe Insurance Co., 317 Pa.Super. 217, 463 A.2d 1163 (1983); Cherry v. Willer, 317 Pa.Super. 58, 463 A.2d 1082 (1983).

Appellants’ next contention concerns the admission of testimony of two witnesses, which allegedly violated the hearsay rule. Mary Bosak’s daughter, Helen Krise, testified about a conversation that took place between Bosak and a GTE representative, Thomas Zolbe, and that Bosak granted permission to have the poles and line installed. Zolbe also was allowed to testify about the same conversation.

The trial court correctly concluded that the proffered testimony was admissible as an exception to the hearsay rule; the statements made by Krise and Zolbe were admissible as declarations against interest. In Brown v. McConnell, 173 Pa.Super. 94, 98, 93 A.2d 896, 898 (1953), we stated: “Declarations of a prior owner against his interest made while holding legal title to the property are admissible in evidence against him and against those claiming under him.” (Emphasis in original). Accord School District of Donegal Township v. Crosby, 171 Pa.Super. 372, 90 A.2d 341 (1952).

In the case at bar, there is no doubt that the statements made by Mrs. Bosak were against her interest — specifically against her pecuniary interest. Appellants’ expert witness testified that the value of the property in question was drastically decreased (by 50%) due to the presence of the poles and transmission line. By giving GTE permission to erect the poles and line, Mrs. Bosak reduced the value of her property. Therefore, these statements were admissible against appellants, successors-in-title to the property, to show that permission was given to GTE for the installation of the equipment.

A related argument of appellants’ is that Zolbe’s testimony violated the Pennsylvania Dead Man’s Statute, 42 Pa.C.S. § 5930 (a substantial reenactment of the Act of May, 1887, P.L. 158, § 5(e), 22 P.S. § 322). “The Dead Man’s Rule was enacted to protect the estate of a decedent against a claim based on testimony of a surviving party as to a transaction with a decedent. The rule exists for the protection of the dead man’s estate ...” Flagship First National Bank v. Bloom, 288 Pa.Super. 347, 353, 431 A.2d 1082, 1085 (1981).

Our Supreme Court has delineated three criteria which must be present before the statute may be invoked to disqualify a witness.

(1) the deceased must have had an actual right or interest in the matter at issue, i.e. an interest in the immediate result of the suit; (2) the interest of the witness — not simply the testimony — must be adverse; (3) a right of the deceased must have passed to a party of record who represents the deceased’s interest.

In re Estate of Hendrickson, 388 Pa. 39, 45, 130 A.2d 143, 145-47 (1957) (footnotes and emphasis omitted). See also In re Estate of Rider, 487 Pa. 373, 409 A.2d 397 (1979); In re Estate of McFetridge, 472 Pa. 546, 372 A.2d 823 (1977).

Applying these factors to the instant matter, it is clear that the first and third criteria are not present. As such, the Dead Man’s statute is not applicable and Mr. Zolbe was competent to testify.

Having concluded that an oral license was given to GTE, we must now determine if the license was irrevocable and whether appellants took the property subject to the irrevocable license. The evidence presented at trial showed that the equipment was placed on the property at considerable expense and labor to GTE on the faith of the permission given by Mrs. Bosak. This evidence was sufficient to establish the irrevocability of the license. Cole v. Ellwood, supra; Dailey Chevrolet v. Worster Realities, Inc., supra; Harkins v. Zamichieli, supra. Moreover, appellants’ repeated references to the fact that they were aware of the presence of the equipment when they purchased the property is sufficient to establish notice. Consequently, when the Kovachs purchased the property, they purchased it subject to the irrevocable license.

We are convinced that the chancellor could reasonably have reached the conclusion that appellee had met its burden of proving the existence of an irrevocable license. GTE’s evidence was direct, clear, and convincing. Reagan v. Curran, 226 Pa. 265, 75 A. 362 (1910).

Judgment affirmed.

      . Mrs. Bosak died in 1971.


author: OLSZEWSKI, Judge:

text:
    489 A.2d 887
    In the Interest of MARK C., a Minor. Appeal of MARK C.
    Superior Court of Pennsylvania.
    Submitted Jan. 17, 1985.
    Filed March 8, 1985.

      Robert G. Schwartz, Philadelphia, for appellant.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This appeal follows adjudication of delinquency on charges of attempted burglary, attempted criminal trespass and criminal conspiracy. Appellant challenges the sufficiency of the evidence supporting his adjudication on those charges. After reviewing the record, we conclude there existed sufficient evidence to sustain appellant’s conviction on any one of those charges. Conviction for all three, however, will not stand.

The afternoon of Sunday, May 8, 1983, appellant and another boy attempted to break into a store. They abandoned their effort after appellant hurled a cobblestone through a 6" by 8" window. Three charges, attempted burglary, attempted criminal trespass and conspiracy, arose from that single attempted entry. Conviction of more than one offense defined by Chapter Nine of the Crimes Code for conduct designed to commit or culminate in the commission of the same crime is illegal. 18 Pa.C.S. § 906. Conspiracy to commit a crime is an inchoate offense within the meaning of § 906; so too is the attempted crime. See 18 Pa.C.S. §§ 903 and 901. It is unclear from the record whether burglary or criminal trespass formed the object of the conspiracy. Section 905 dictates that the conspiracy be graded the same as the most serious offense, here the burglary, which is an object of the conspiracy. 18 Pa.C.S. § 905(a).

Given the lower court’s error in convicting appellant both of conspiracy to commit burglary and attempted burglary, we have the option either to remand for resentencing or to amend the sentence directly. Commonwealth v. Gonzales, 297 Pa.Super. 66, 443 A.2d 301 (1982). In the interest of judicial economy, we choose the latter and vacate appellant’s adjudication of delinquency for conspiracy.

Two charges, attempted burglary and attempted criminal trespass, remain. The ultimate offenses, burglary and criminal trespass, are not gradations of the same offense. Commonwealth v. Simpson, 316 Pa.Super. 115, 462 A.2d 821 (1983) (criminal trespass is not a lesser-included offense of burglary since one of the elements of trespass, knowledge by defendant that he was not privileged to enter, is not an element of burglary). Where the crimes of burglary and criminal trespass arise from the same single unlawful entry, however, the offenses do merge for the purposes of sentencing. Commonwealth v. Brown, 320 Pa.Super. 80, 466 A.2d 1071 (1981). The reasoning extends, by analogy, to The attempted crimes. Accordingly, we vacate the term of probation imposed following appellant’s adjudication of delinquency on the charge of attempted criminal trespass.

Order modified in accordance with this opinion.

Order as modified affirmed.

      . Appellant’s failure to raise these issues below does not bar our consideration thereof. Commonwealth v. Franklin, 306 Pa.Super. 422, 452 A.2d 797 (1982).

      . Our decision today reflects an awareness of the long-term effects of an adjudication of delinquency. See 42 Pa.C.S. § 6354.


text:
    489 A.2d 889
    COMMONWEALTH of Pennsylvania v. Vernon J. HILL, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1984.
    Filed March 8, 1985.

      Ernest J. DiSantis, Jr., Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before ROWLEY, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

In this case, appellant was convicted of theft, false reports to law enforcement authorities and criminal conspiracy; in this appeal, he seeks either discharge or a new trial. The circumstances from which the charges stem are as follows:

On December 8, 1981, defendant Hill and Selwyn Spearin were truck drivers returning to their employer from a delivery in the South. They held $12,000 in cash, payment for goods delivered. At a truck stop near Erie, they left their truck and bought coffee; Spearin left the shop before Hill and returned to the truck. He claims he saw a person climbing out of the truck with the truck radio under his arm, and, when he tried to stop the thief, was shot. When he was walking toward the shop for help, Hill saw him and helped him. Police were called; a few days after calling in tracking dogs, interviewing potential suspects and performing tests, they arrested Spearin and Hill, charging them with the crimes of which they were convicted. The $12,000 was not recovered.

The co-defendants, who were tried together, appealed separately. Here, appellant Hill makes a number of arguments, many of which focus on the alleged ineffective assistance of trial counsel.

Our standard for review of ineffective assistance of counsel claims has changed recently; our prior practice had been to remand for a hearing on ineffectiveness whenever such a claim was made on appeal, if no hearing had been held by the trial court. The Supreme Court, however, condemned that practice in Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984), and set forth a new procedure; the appellate court is to evaluate the ineffectiveness claims and decide whether they have merit. If they have no merit, no evidentiary hearing is necessary. Id., 505 Pa. at 360, 479 A.2d at 957. Accordingly, we must decide whether appellant’s claims have merit.

The prosecutor’s summation.

The statements made by the Commonwealth’s attorney, appellant alleges, were couched in terms of personal opinions and included misstatements of material evidence. On comparing the contested remarks to those made in Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976), we find the prosecutor did not exceed the bounds of allowable argument. Appellant’s ineffectiveness claim being meritless, there is no need to remand for an evidentiary hearing.

Severance.

Appellant next argues counsel was ineffective for failing to request a severance of his trial from that of his co-defendant, Selwyn Spearin. Appellant argues that he was prejudiced by the joint trial because the evidence against Spearin was “far greater and more damaging” than against him; his defense potentially conflicted with that of Spearin; Spearin’s defense encouraged the jury to question appellant’s credibility; and statements inadmissable against appellant in the absence of co-defendant Spearin were admitted, to the detriment of appellant.

We are guided by Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820, cert. denied 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954):

The trial Judge because of his position and for other obvious reasons has been given a discretion to determine whether a number of bills of indictment should be consolidated and tried together, and his exercise of discretion in such matters will not be reversed by an appellate Court unless there has been a manifest abuse of discretion or a joint trial is so unfair as to be clearly unjust and prejudicial to one or more of the defendants. Especially is a joint trial permissible, if not advisable, when the crimes charged grew out of the same acts and much of the same evidence is necessary or applicable to both defendants.

378 Pa. at 415, 106 A.2d at 822-23. See also Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980).

It is patent that the same evidence was necessary to try both men. The crimes charged grew out of the same incident. Conspiracy was charged. The enumerated complaints do not rise to the level of prejudice envisioned by the Supreme Court in Kloiber. Since no prejudice resulted from a joint trial, counsel was not ineffective for failing to move to sever. No hearing is necessary for this claim of ineffectiveness.

The order and jury instructions on testimony stricken.

Counsel can be found ineffective for failing to preserve a proper objection only if the objection would have had some merit. Here, the objection appellant argues should have been preserved was to the court’s instruction to the jury to disregard the testimony of defendant’s witness, and barring trial counsel from arguing the testimony in summation.

The witness, John Maracle, testified that he had lent the defendant money in the past. The evidence was offered as probative that $4,750 given by the defendant to his employer, who suffered the loss of the theft, was from a source other than the missing $12,000. The defendant never took the stand to testify that the money came from a loan. The court subsequently told the jury to disregard the testimony and ordered counsel to refrain from arguing it.

In order to be admissible, evidence must be both competent and relevant. Commonwealth v. Potts, 314 Pa.Super. 256, 460 A.2d 1127 (1983). Relevant evidence “tends to increase or decrease the probability of a material fact” at issue. Id., 314 Pa.Superior Ct. at 276, 460 A.2d at 1137. Here, testimony that the defendant had been lent money by the witness, without any other linking testimony, was irrelevant to the issue of whether the money given the employer after the theft was borrowed money or stolen money. The objection, had it been made, would have been overruled, and this Court would have affirmed on appeal. The trial court properly ordered the jury to not consider the testimony, and barred counsel from arguing it. Trial counsel was not ineffective for failing to object.

Failure to call witnesses.

Appellant argues his trial counsel was ineffective because he failed to call certain witnesses, and because he failed to put appellant on the witness stand. We must carefully consider this argument in light of Commonwealth v. McFarland, 304 Pa.Super. 470, 450 A.2d 1008 (1982).

In McFarland, appellant argued that his trial counsel was ineffective because he had failed to put the defendant on the stand, although appellant had desired to testify. Counsel also had failed to subpoena and call as witnesses two men who had seen the victim of the crime shortly afterward and allegedly had told appellant that evidence, important to the Commonwealth’s case, was not present, which contradicted the victim’s version of events.

Here, unlike the appellant in McFarland, appellant does not allege that he wanted to testify and that counsel went against his wishes by failing to place him on the stand. Indeed, the appellant had a conviction on his record that the Commonwealth could have used to impeach his credibility had he chosen to testify. We find no merit in this claim of ineffectiveness.

Our review of counsel’s failure to call other witnesses must be based on what appellant argues those witnesses would have said had they testified. Commonwealth v. Ashley, 277 Pa.Super. 287, 419 A.2d 775 (1980). Failure to call known witnesses may be ineffective assistance, if the only issue is credibility. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). Here, the Commonwealth’s case certainly rested on credibility. No physical evidence on the theft charge was ever found. The Commonwealth’s case was based on testimony on appellant’s discussions with his co-defendant on the amount of money entrusted to them, the nature of the wound and the fact that appellant delivered some money to his employer a few days after the robbery.

The prosecutor’s scenario was that Mrs. Hill had removed the money and gun from the scene. Appellant’s wife could have testified that she had not been given the money and gun to hide and that she arrived at the scene after the employer. It would have been up to the jury whether to believe her, or believe the Commonwealth’s version of events.

The Commonwealth also argued that appellant’s payment of money to his employer a few days after the robbery was evidence that the robbery was faked, and introduced testimony from the employer on the payment. Appellant claims Alexander Padowski, Jr., could have testified for appellant that the money was secured by threats, and that he should have been called. Such testimony, going to credibility, would have aided appellant had the jury believed it.

Since the failure-to-call-witnesses claim is meritorious, the case must be remanded and an evidentiary hearing held, at which counsel can explain his reasons for failing to call the witnesses.

Sufficiency of the evidence.

Appellant argues that the evidence was insufficient to support the jury’s verdict. The test for sufficiency is whether, accepting all the evidence as true, with all reasonable inferences that properly could be made from it, the evidence proved beyond a reasonable doubt that appellant was guilty. Commonwealth v. Barky, 476 Pa. 602, 383 A.2d 526 (1978). A thorough review of the record shows that the evidence admitted, although largely circumstantial, together with permissible inferences, was sufficient to support a verdict of guilty.

The duplicitous information.

Appellant argues that the complaint joined in a single count two separate offenses. The third count of the information charged the defendants with conspiracy to commit the crime of false reports to law enforcement officials and/or conspiracy to commit theft. Trial counsel, appellant argues, should have objected to the information.

In Commonwealth v. Baranyai, 278 Pa.Super. 83, 419 A.2d 1368 (1980), this Court set aside a conviction obtained on a fatally defective information, which had charged the defendant with a crime not listed in the statute books. Here, the information charged appellant with criminal conspiracy, in that he conspired to commit the crimes of false reports to law enforcement authorities and/or theft by unlawful taking or disposition. The jury returned a verdict of guilty, without stating whether appellant had conspired to commit the first, second or both offenses.

In our opinion, the verdict, combined with the thorough jury instructions given by the court, cured any duplicity in the information. The jury clearly found that appellant had committed both conspiracy to commit theft and conspiracy to make false reports.

Appellant also argues that there was a variance between the charges and proof at trial. After a careful examination of the charges, the evidence brought forth, and arguments by counsel, we find there is no variance. Since counsel was not ineffective for failing to object to the information and the alleged variance, no hearing is required for this issue.

The neutron activation test.

Appellant argues that the Commonwealth failed to supply him with the results of a neutron activation test for gunpowder traces, even though he had made a proper request for all exculpatory evidence under Pa.R.Crim.P. 305(A). He argues that the Commonwealth’s failure to give him the test results denied him due process of law.

In Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590, cert. denied 412 U.S. 943, 93 S.Ct. 2775, 37 L.Ed.2d 404 (1973), the Supreme Court held that reports on a defendant’s clothing should be made available to the defendant at trial once the Commonwealth initiated a general inquiry into the clothing. The Court held there had been no prejudice to the defendant, however, since the state of the clothing was never brought up at trial.

Here, the failure to produce the test results did not prejudice the defendant. The results were inconclusive, and could not have helped or hurt the defendant’s case. He has not been denied due process of law.

The disparate sentences.

Appellant complains that trial counsel was ineffective for failing to move to reconsider sentence, and that the sentencing court failed to give adequate reasons for the disparate sentences given the co-defendants. Appellant received an effective sentence of one to three years. Spearin received an effective sentence of 111/2 to 23 months, a minimum of one-half and a maximum of 13 months less than appellant.

Before we address appellant’s issue, we note that the sentence imposed on the criminal conspiracy count of the information is probation for five years. We also note that because conspiracy to make false reports to law enforcement officials is a misdemeanor III, with a maximum sentence of one year imprisonment, a sentence of five years’ probation is illegal. Since the court did not state that the probation was for conspiracy to commit theft, a felony III with a maximum sentence of seven years, we must remand for resentencing on this count, as the imposed sentence is illegal.

As for the disparate sentence argument: the usual rule is that courts need not impose identical sentences on co-defendants. But, in order for different sentences to withstand appellate scrutiny, the sentencing court must articulate the differences between the co-defendants that justify the disparate sentences. Commonwealth v. Sinwell, 311 Pa.Super. 419, 427, 457 A.2d 957, 960 (1983).

Here, since trial counsel never moved to reconsider sentence, the sentencing court gave no reasons for its disparate sentences. Accordingly, on this point, we must remand to the sentencing court for reconsideration of sentence.

Remanded for an evidentiary hearing on effectiveness of counsel with respect to failure to call witnesses. If counsel was effective, the court is to resentence on conspiracy, and reconsider the remaining sentence. If counsel was ineffective, sentence is vacated and a new trial on all charges is granted.

Jurisdiction relinquished.

      . Appellant’s arguments are as follows:
      1. Trial counsel was ineffective for failing to object to the prosecutor’s summation, which exceeded the bounds of permissible argument and denied defendant a fair trial.
      2. Trial counsel was ineffective for failing to request defendant’s trial be severed from that of co-defendant Spearin, and for failing to take other related measures.
      3. The court’s ruling, prohibiting trial counsel from arguing the testimony of defendant’s sole witness, and its subsequent order, and jury instructions striking said testimony, deprived defendant of his constitutional rights to due process and to present a defense. Further, trial counsel was ineffective for failing to preserve a proper objection.
      4. Trial counsel was ineffective for failing to call the defendant’s wife and Mr. Alexander Padowski, Jr., as defense witnesses, and for failing to let the defendant testify on his own behalf.
      5. The evidence was insufficient to support the defendant’s conviction on all charges.
      6. Trial counsel was ineffective for failing to object to a duplicitous information and to a prejudicial variance between the information and proof at trial.
      7. The Commonwealth’s pre-trial suppression of exculpatory neutron activation analysis evidence deprived the defendant of his right to due process of law.
      8. The trial court did not state sufficient reasons for its disparate sentences of the defendant and co-defendant, and trial counsel was ineffective for failing to file a motion to reconsider sentence. Trial counsel did move for a new trial or arrest of judgment; the
      motions were denied. Trial counsel did not move to reconsider the sentence.

      . Typical of these statements:
      I think you’ll find something very interesting. I think you’ll find that the shirt itself confirms the Commonwealth’s theory Mr. Spearin shot himself, but I’m getting ahead of myself.
      N.T. at 447.

      . The victim had testified that she had had a shoelace around her neck when she escaped from the defendant, who was charged with rape, while the witnesses had asserted to appellant that no shoelace existed.

      . Appellant claims Mr. Padowski witnessed threats made by the employer to appellant, intended to force return of the money the employer believed appellant had stolen. Testimony on such threats would not have been hearsay, in our opinion, since the question was whether threats were made, not whether the statements made were true. See Commonwealth v. Covil, 474 Pa. 375, 378 A.2d 841 (1977) (testimony on threatening statements made to victim by defendant admissible as evidence of motive for killing).

      . There is a difference between conspiracy to commit the crime of false reports and conspiracy to commit theft. Conspiracy/false reports is a misdemeanor III, 18 Pa.C.S. §§ 903, 905, 1104, 4906 (Purdon’s 1983). Conspiracy/theft is a felony III, 18 Pa.C.S. §§ 903, 905, 1103, 3903 (Purdon’s 1983).

      . Technically, this violates Pa.R.Crim.Pa. 228(a), 42 Pa.C.S., requiring each offense be listed in a separate count.

      . Each received five years' probation for conspiracy. We note also that in Commonwealth v. Rooney, 296 Pa.Super. 288, 442 A.2d 773 (1982), this Court held that sentencing courts may not rest the sentence upon the seriousness of the crime alone. Here, from the sentencing colloquy, it is apparent that the court did just that. Additionally, the court apparently did not make use of the Sentencing Guidelines, 42 Pa.C.S. § 9721 (Purdon’s 1983). In Commonwealth v. Walton, 289 Pa.Super. 411, 433 A.2d 517 (1981), we held a court is not required to set forth the factors enumerated in the Guidelines as a checklist, but that there must be some evidence that the court has carefully considered the weight to be given each of the grounds set forth in applicable sections dealing with probation, partial confinement and total confinement. And, within the framework of the facts of the individual case, the sentencing court must enunciate to the defendant the underlying reasons for the sentence imposed.
      Here, it is apparent that the court did not consider the alternatives of non-confinement or partial confinement, stating that "certainly the kind of offense involved here would not permit me to impose anything other than a jail sentence." The court, when reconsidering sentence for the reasons stated in the text of the opinion, should examine the Guidelines, and enunciate to the defendant its reasons for the sentence.


author: OLSZEWSKI, Judge: ROWLEY, Judge,

text:
    489 A.2d 895
    Maryann OLSON, Appellant, v. WASHINGTON COUNTRY CLUB and Patricia D. Jessop, an individual.
    Superior Court of Pennsylvania.
    Argued Dec. 19, 1984.
    Filed March 8, 1985.

      John P. Liekar, Jr., Cannonsburg, for appellant.
    Wray, G. Zelt, III, Washington, for Washington, appellee.
    W. Patrie Boyer, Assistant District Attorney, Washington, for Jessop, appellee.
    Before ROWLEY, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment entered in a personal injury case. Appellant contends that the lower court 1) committed several errors in its charge to the jury; and 2) erred when it failed to either grant a mistrial or remove a juror. We find appellant’s arguments meritless and affirm the judgment.

The facts of this case may be quickly summarized. On July 16, 1979, a group of non-members held a golf outing at the Washington Country Club. The outing group brought along several women to drive golf carts containing beer, soda-pop, bloody marys, etc. One of these women invited appellant to come along. Appellee, Washington Country Club, is a nine-hole golf course. The course is bisected by a two lane asphalt public road which players are required to cross at two points: after hitting their drive on number one and after finishing number eight in order to get to the number nine tee.

The accident at issue occurred at the crossing to the number nine tee. One, Jan Bausman took control of appellant’s golf cart causing it to go onto the roadway and into, either the path of, or the side of, a motor vehicle operated by appellee, Patricia D. Jessop. Appellant commenced an action against both Ms. Jessop and the country club alleging that their negligence caused her injuries.

The jury’s verdict in this case was in the form of answers to interrogatories. In answer to question 1, the jury found that Washington Country Club was negligent, and that Ms. Jessop was not negligent. In answer to question 2, the jury found that the negligence of Washington Country Club was not a substantial factor in bringing about appellant’s harm. The trial court molded the verdict, immediately after it was rendered, to find in favor of both Washington Country Club and Ms. Jessop and against appellant. Judgment was entered following the denial of appellant’s motion for a new trial. This appeal followed.

We will first address appellant’s contentions regarding the lower court’s jury charge.

Appellant first argues that the trial court erred in failing to instruct the jury that she was a business invitee, and as such, owed the highest duty of care of any entrant upon land. Appellant’s requested points for charge on this issue were the following:

Point 2. The plaintiff, Maryann Olson, was a business invitee of the defendant, Washington Country Club’s premises, and as such, she was not required to be on the alert to discover dangerous conditions which were not obvious or apparent. The defendant, Washington Country Club, on the contrary had an affirmative duty to keep its premises safe for the plaintiff, Maryann Olson, and to warn her of any potential hidden perils which it knew or should have known of, in the exercise of reasonable care.
Point 3. The defendant, Washington Country Club’s duty of protection towards business visitors, such as the plaintiff, is the highest duty owed to any entrant upon land, and the defendant, Washington Country Club, was under an affirmative duty to protect the plaintiff, Maryann Olson, not only against those which, with reasonable care, it might discover, because the business visitor enters upon a land owner’s premises with an implied assurance of preparation and reasonable care for her protection and safety while she is there.

The trial court rejected these points for charge, and instead, charged the jury in accordance with Pennsylvania suggested Civil Jury Instruction No. 7.00, as follows:

An owner/occupier of land is required to use reasonable care in the maintenance and use of the property. If you find that he has failed in this regard, this is negligence which may make him liable for any resulting damage to one lawfully on the property. What is reasonable care depends on, and must be in keeping with, the use defendant expected to be made of the property.

(Pennsylvania, Proposed Jury Instructions, Civil No. 7.00 June 2, 1974) Appellant contends that she was prejudiced by the lower court’s rejection of her requested points for charge and by the court’s actual charge. We disagree. As stated earlier, the jury found the country club to have been negligent. Thus, the issues raised concerning the jury’s charge as to the country club’s duty of care are moot. We will not consider these issues further. Jones v. Montefiore Hospital, 275 Pa.Super. 422, 432, 418 A.2d 1361, 1366 (1980).

Appellant next alleges that the lower court erred in failing to 1) charge the jury regarding negligence per se; and/or 2) direct the jury to find the country club negligent per se because of an alleged violation of the Pennsylvania motor vehicle code. Here again, since the jury found the country club to have been negligent, these issues are also moot.

Appellant’s third contention is that the lower court erred when, in response to a jury interrogatory, it defined “substantial factor” by way of two hypothetical. Appellant claims that these hypotheticals were so similar to the instant case that the jury was swayed by the court’s reasoning and could not render a fair verdict. The record reveals that appellant failed to object to the instruction when it was given. Therefore, we must consider this issue waived. Crosbie v. Westinghouse Elevator Co., 297 Pa.Super. 304, 443 A.2d 849 (1982), Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Appellant’s last allegation regarding the jury charge is that the trial court erred in failing to instruct the jury that there can be more than one substantial factor in bringing about harm. Appellant’s requested point for charge no. 4 stated:

Point 4. There may be more than one substantial factor in bringing about the harm suffered by the plaintiff, Maryann Olson, when the negligent conduct of two or more persons contributes concurrently to an occurrence or incident, each of these persons is fully responsible for the harm suffered by the plaintiff, Maryann Olson, regardless of the relative extent to which each contributed to the harm.

The trial court charged the jury on this issue pursuant to Pennsylvania suggested Civil Jury Instruction No. 3.26 as follows:

“There may be more than one substantial factor in bringing about the harm suffered by the plaintiff, when the negligent conduct of two or more persons contributes concurrently to an occurrence or incident, each of those persons is fully responsible for the harm suffered by the plaintiff, regardless of the relative extents to which each contributed to the harm. A cause is concurrent if it was operative at the moment of the incident, and acted with another cause as a substantial contributive factor in bringing about the harm.”

(Pennsylvania, Proposed Jury Instructions, Civil No. 3.26, March 30, 1978)

Obviously, the trial court read verbatim the standard jury instruction from which appellant drafted her own point for charge. Appellant’s contention, therefore, is meritless.

Appellant’s final contention is that the lower court should have either declared a mistrial or removed an empanelled juror because it was discovered that juror No. 11 had had conversations, during the trial, with a court administrator (who was a member of the appellee country club) and with the president of the country club.

The conversations complained of were brought to the attention of the trial court, and an investigation was conducted to determine the conversations’ extent and nature. From this investigation, the lower court concluded that the communications were harmless and not grounds for a new trial.

The law concerning communications with jurors was summarized by this Court in Printed Terry Finishing v. City of Lebanon, 247 Pa.Super. 277, 372 A.2d 460 (1977). This court stated:

“____ If, however, contact between an officer of the Court and a juror should occur, it is not required that the parties be curt or lacking in customary amenities or social intercourse...” Pessin v. Keeneland Association, 298 F.Supp. 593 (E.D.Ky.1969). Such contacts, however, must not be of such nature as to cast suspicion upon the integrity of the jury verdict. Thus, the Supreme Court of the United States, in Mattox v. United States, 146 U.S. 140 [13 S.Ct. 50, 36 L.Ed. 917] (1892), pronounced that:
‘Private communications possibly prejudicial between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.’ Id. at 150 [13 S.Ct. at 53].
We, therefore, agree with the statement of the Court in California Fruit Exchange v. Henry, 89 F.Supp. 580 (W.D.Pa.1950) that:
‘The courts look with suspicion upon any communications between parties to a suit or their counsel and the jury in panel to try it, and if such communication is had and it appears that the conversation was had about the suit, or the communication is not explained satisfactorily, it will, in itself, be grounds for a new trial. If, when explained, however, it can be seen in the communication nothing was said about the case and nothing was done for the purpose of influencing the mind of the jury, and that the communication or conversation had no influence on the verdict which was reached, no ground exists to set the verdict aside for the reason that said comment could not have been prejudicial.’ ” (Emphasis supplied.)

(247 Pa.Superior Ct. at 299, 372 A.2d at 471)

In the instant case, the investigation revealed that the conversation between the juror in question and the court administrator dealt solely with the jury selection process, and in no way involved the trial. Further, the court administrator stated, under oath, that he never identified himself as a member of the country club. Finally, nothing in the record indicates that juror No. 11 was aware of the administrator’s membership. We are satisfied that this conversation does not justify a new trial.

We turn now to the suspect juror’s alleged conversation and past relationship with the president of the appellee country club. At the investigation, it was discovered that the country club president was a funeral director and further, that during the trial, juror No. 11 had visited the president’s funeral home. However, additional testimony revealed that at no time did juror No. 11 discuss the case with the country club president.

The investigation also disclosed that a few members of the suspect juror’s family had been buried from the country club’s president’s funeral home. However, appellant has failed to convince this Court that a funeral-type relationship is sufficient to affect a juror’s impartiality. Further, we note that appellant declined to have juror No. 11 interviewed under oath concerning this matter.

Applying the Printed Terry Finishing standards, we conclude that nothing in the record indicates any impropriety on the part of juror No. 11 or the individuals he apparently spoke with. Since all communications were satisfactorily explained and shown to have been harmless, we hold that the lower court properly denied appellant’s motion for a new trial.

This Court finds all of appellant’s arguments to be merit-less. Accordingly, the judgment of the lower court is affirmed.

Judgment affirmed.

ROWLEY, J., files a concurring statement.

ROWLEY, Judge,

concurring:

I JOIN in the majority’s Opinion, with the exception of the views expressed in Footnote 3. I express no opinion on that issue. I deem it preferable to reserve an opinion until the issue is presented under circumstances where such a determination is necessary and the issue has been briefed and argued.

      . Suit papers were never properly served on Jan Bausman and the suit against him was dismissed before the trial began.

      . Questions 1 and 2 of the jury interrogatories stated:
      Question 1:
      Do you find that any of the defendants was negligent?
      Defendant, Washington Country Club Yes_No_
      Defendant, Patricia D. Jessop Yes_No_
      If you answer Question 1 "No" as to all defendants, the plaintiff cannot recover and you should not answer any further questions and should return to the courtroom.
      Question 2:
      Was the negligence of those defendants you have found to be negligent a substantial factor in bringing about the plaintiffs harm?

        Defendant, Washington Country Club Yes No
      Defendant, Patricia D. Jessop Yes No
      If you answer Question 2 "No” as to all defendants you have found to be negligent, the plaintiff cannot recover and you should not answer any further questions and should return to the courtroom.

      . Were this Court to hold on this issue, we would affirm the lower court’s use of Pennsylvania’s Proposed Jury Instructions, Civil No. 7.00.
      This proposed instruction anticipates Pennsylvania joining the enlightened group of states who have abolished the common law distinctions between invitees, licensees and trespassers in determining the duty of care owed by a landowner to entrants upon property. See Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968) and its progeny; 22 A.L.R.4th 294, 32 A.L.R.3d 508. These jurisdictions now require that the land possessor exercise reasonable care commensurate with the circumstances surrounding the use to which he has invited his property to be used. See W. Prosser, Handbook of the Law of Torts, (4th ed. 1971) at 180.
      This Court believes that the distinctions between invitees and licensees have been diluted, dissipated, confused and fragmented to the point where they have largely lost their validity. However, we are not totally convinced that the same is true regarding the common law status of trespasser.
      Therefore, we urge our Court, in an appropriate case, to abolish the classifications of licensee and invitee but preserve the common law status of trespasser. See Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (1973); Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972);
        O’Leary v. Coenen, 251 N.W.2d 746 (N.D.1977); Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1 (1975).


author: BECK, Judge:

text:
    489 A.2d 900
    COMMONWEALTH of Pennsylvania v. Clair P. MYER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 24, 1984.
    Filed March 8, 1985.

      O. Howard Mummau, Manheim, for appellant.

      Before McEWEN, CHULLO and BECK, JJ.
   BECK, Judge:

Arthur Conan Doyle might have captioned this appeal “The Case of the Counterfeit Clock.” Appellant Clair Myer was convicted of the offense of simulating objects of antiquity or rarity, 18 Pa.C.S. § 4102, in connection with the alteration and sale of an antique grandfather clock. He was sentenced to one year’s probation. For the reasons stated below we affirm.

Appellant raises the following issues on appeal:
(1) Whether the court erred in refusing to grant appellant’s motion in arrest of judgment on the grounds 'that the weight of the evidence does not support the verdict;
(2) Whether the court should have granted a new trial because the jury was improperly instructed as to the elements of the offense;
(3) Whether the court erred in denying appellant’s requests for evidentiary hearings on ineffective assistance of counsel and on allegedly perjured testimony of the principal Commonwealth witness, and
(4) Whether the court should have granted a new trial because appellant was prejudiced by the prosecutor’s improper questioning of a Commonwealth witness concerning his religious belief.

Although appellant’s first assignment of error is framed in terms of the weight of the evidence, his contention that the trial court should have granted his motion in arrest of judgment is properly treated as a claim that the evidence was insufficient as a matter of law to support the verdict. In reviewing such a claim, we follow the familiar rule that we must view all the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth, and determine whether the evidence so viewed is sufficient for the trier of fact to find each element of the crime charged beyond a reasonable doubt. Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983); Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978); Com monwealth v. Klimkowicz, 331 Pa.Super. 75, 82, 479 A.2d 1086, 1089 (1984).

Viewed according to the foregoing standard, the evidence adduced at trial established the following. In 1971 appellant purchased an antique grandfather clock at a house sale in Lancaster County. At the time of purchase, the clock had no indication whatsoever on it of the name of its maker. In 1974, appellant decided to restore the clock. He contacted Mr. Stacy Wood, who was in the business of repairing and restoring antique clocks. Mr. Wood proceeded to work on the clock. In the course of the restoration, the clock was disassembled and Mr. Wood found no maker’s name on any part of the clock.

The task of repainting the dial of the clock was referred to Mr. Donald Wendling of Macungie, Pennsylvania. Appellant then met with Mr. Wendling to select a design for the clock dial. Appellant instructed Mr. Wendling to add the name Joseph Eberman to the dial. Joseph Eberman was a noted clockmaker in Lancaster County in the early nineteenth century. Mr. Wendling painted the dial as appellant instructed, but he added the words “repainted August of 1974,” “name added” and “D.J.W.” on the backside of the dial. This was not done at appellant’s request; it was Mr. Wendling’s practice when no maker’s name was found on the clock. When the clock was reassembled, these inscriptions on the back of the dial were partially obscured. Upon returning the restored clock to appellant, Mr. Wood noted on the bill “no name of maker found on plate dial or false plate” (emphasis in original).

On February 14, 1981, appellant placed a classified advertisement in the Lancaster County Intelligencer Journal under the classification “Antiques & Reproductions.” The advertisement read as follows:

Eight day Joseph Eberman cherry tall case clock, scroll, top moon dial. Thirty hour George Hoff walnut tall case clock, scroll, top. Call 665-3531.

On February 16, Jason Bange of Hanover responded to the advertisement and spoke with appellant on the telephone concerning the “Eberman” clock. Later that same morning, Mr. Bange proceeded to appellant’s home, met with appellant, and had a general view of the clock. Appellant stated that the price of the clock was $7,000. Mr. Bange wished to discuss the purchase of the clock with his wife, so he left without the parties reaching an agreement at that time. He returned with his family in the evening. Appellant reaffirmed that the clock was a Joseph Eberman clock. Mr. Bange decided to purchase the clock, and the parties agreed on a price of $6,500.

In order to move the clock to Mr. Bange’s vehicle, it was necessary to disassemble it partially. As Mr. Bange and appellant dismantled the clock, Mr. Bange noticed the words “Repainted August of 1974” on the back of the dial. He asked appellant about the inscription. Appellant said it was there when he bought the clock. Mr. Bange did not inquire further into the matter, and he took the clock home.

Shortly thereafter, Mr. Bange learned that the clock he had purchased did not bear the features normally associated with authentic Joseph Eberman clocks. He telephoned District Justice Marilyn Stoner in Lancaster County and expressed his concerns that the clock was not a genuine signed Eberman clock. District Justice Stoner referred the matter to Chief Winters-of the Manheim Borough police. Chief Winters and Mr. Bange disassembled the clock, revealing the entire inscription placed on the backside of the dial by Mr. Wendling, including the words “name added” and “D.J.W.” Chief Winters then executed a criminal complaint charging appellant with a violation of 18 Pa.C.S. § 4102.

Appellant argues that because the Commonwealth could not prove conclusively that the clock was not in fact made by Joseph Eberman, the Commonwealth had not established that the clock “appears to have value because of ... source of authorship which it does not possess,” 18 Pa.C.S. § 4102. We disagree. The Commonwealth’s expert witnesses testified that it was the presence of the maker’s signature itself which added to the value of the clock (N.T. 120, 188-89). Witness Stacy Wood further testified that the clock sold by appellant to Mr. Bange did not bear any features associated with Eberman clocks, and that he “would not attempt to” authenticate the clock as an Eberman clock without the signature. N.T. 119, 136. Finally, Mr. Wood stated that “[i]f we don’t know who the maker is I don’t believe any name should be on there.” N.T. 116. From this testimony, the jury could find that any conclusions as to the origin of the unsigned clock would be speculative at best and that adding a maker’s name to the dial of such a clock would create an illusory certainty of origin, thereby increasing the value of the clock, not warranted by the known facts surrounding the clock. This is sufficient to establish that appellant’s actions which resulted in the placing of the Joseph Eberman name on the dial caused the clock to appear “to have value because of ... source or authorship which it does not possess.”

Appellant further argues that the Commonwealth’s case is inadequate because the Commonwealth failed to show that Mr. Bange paid more for the clock than it was worth. This argument is restated later in appellant’s brief in the form of a claim that he is entitled to a new trial because the jury was not instructed that it could find appellant guilty only if it found that the reasonable value of the clock was less than $6,500. Appellant’s claim is merit-less in both contexts. It is not necessary for the Commonwealth to prove that Mr. Bange suffered an actual economic loss or that he was otherwise actually defrauded. The statute requires only that the Commonwealth prove appellant’s intent to defraud. Commonwealth v. Bollinger, 274 Pa.Super. 112, 418 A.2d 320 (1979). Bollinger involved the crime of forgery, defined in 18 Pa.C.S. § 4101. Because the pertinent language in the forgery statute, “with intent to defraud or injure anyone,” differs from the corresponding language in 18 Pa.C.S. § 4102 only by the addition of the words “or injure,” we believe that our construction of the forgery statute in Bollinger may be applied to the crime of simulating objects of antiquity or rarity. In Bollinger, we held that “the law has never required proof that the accused has obtained ‘an ultimate profit’ in order to establish the fraudulent intent necessary for a forgery conviction.” 274 Pa.Super. at 120, 418 A.2d at 324 (citations omitted). Therefore, economic loss to the victim or profit to the accused are not elements of the offense of simulating objects of antiquity or rarity. It was not necessary for the Commonwealth to prove that Mr. Bange paid too much'for the clock, and the trial court did not err in instructing the jury.

We further hold that the evidence adduced at trial is sufficient to support a finding of appellant’s fraudulent intent. We may look to “the totality of the defendant’s conduct” to infer fraudulent intent. Bollinger, 274 Pa.Super. at 121, 418 A.2d at 324. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Whack, the evidence revealed that appellant added the name of Joseph Eberman to the clock without any reasonable basis to believe that he was the maker and that appellant concealed the fact of the alteration from the purchaser, Mr. Bange, thereby misrepresenting to Mr. Bange that the clock was “an Eberman clock,” i.e. a clock made and signed by Joseph Eberman. From this the jury could infer that appellant intended to mislead others into believing that the clock bore the mark, i.e. the maker’s signature, which gave positive evidence of its origin and value.

Next, appellant argues that the court erred in denying his post-trial motions for an evidentiary hearing on the issues of trial counsel’s ineffectiveness and allegedly perjurious testimony of the chief Commonwealth witness, Mr. Bange. We find no error in the trial court’s actions. Where it is clear from the record that allegations of ineffective assistance of counsel are baseless, no evidentiary hearing is necessary. Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984). Appellant contends that trial counsel acted ineffectively when he failed to impeach Mr. Bange’s credibility by questioning him about statements he allegedly made to appellant outside the courtroom to the effect that he had no grievance against appellant and was testifying only under compulsion.

Appellant’s brief contains the answer to his own argument. Appellant admits that “the record is clear from the trial that Jason Bange genuinely wanted to avoid testifying against Mr. Myer.” Appellant’s Brief at 11. As appellant recognizes, trial counsel conducted a thorough cross-examination of Mr. Bange which probed extensively into his reluctance to testify. In connection with this skillful cross-examination, appellant’s trial counsel introduced a letter from private counsel retained by Mr. Bange, indicating Mr. Bange’s desire not to get involved with prosecuting appellant. Based on this record we cannot find that counsel’s action had no “reasonable basis designed to effectuate his client’s interests,” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). We will not second-guess counsel’s choice of the best avenue of questioning to bring out this particular issue on cross-examination. Since there is no arguable merit to appellant’s allegation of ineffectiveness, the trial court properly refused an evidentiary hearing.

Appellant’s claims with respect to the allegedly perjurious testimony of Mr. Bange essentially amount to a motion for a new trial based on after-discovered evidence and a request for an evidentiary hearing thereon. The legal standard to be applied is well-settled. A new trial will be awarded on the basis of after-discovered evidence only if the evidence in question:

(1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted.

Commonwealth v. Valderrama, 479 Pa. 500, 505, 388 A.2d 1042, 1045 (1978). Accord, Commonwealth v. Johnson, 291 Pa.Super. 566, 436 A.2d 645 (1981). The after-discovered evidence which appellant claims he has obtained does not meet this standard. The alleged evidence consists of appellant’s claim that Mr. Bange, contrary to his trial testimony, was experienced in buying and selling antiques and had more knowledge about antique clocks than he admitted at trial. Citing Commonwealth v. McCloskey, 270 Pa.Super. 584, 411 A.2d 1239 (1979), appellant argues that he is entitled to a new trial because his after-discovered evidence directly contradicts Mr. Bange’s testimony and proves it false,-rather than merely impeaching its credibility. We disagree, finding that McCloskey is easily distinguishable. In McCloskey, the only witness who linked the defendant to the crimes charged recanted that very testimony under oath and later pled guilty to a perjury charge arising from his false testimony. In the case sub judice, the claimed perjury relates only to collateral matters. The allegedly false testimony of Mr. Bange concerns his expertise as an antique clock buyer. Since proof that the victim was actually deceived or defrauded is not required in a prosecution under 18 Pa.C.S. § 4102, the allegedly false testimony of Mr. Bange is not crucial testimony establishing the elements of the crime. By itself, appellant’s new evidence has no probative value with respect to the elements of the offense charged. Therefore, we believe that the evidence is not “of such a nature and character that a different verdict will likely result if a new trial is granted,” see Valderrama. At most, allegations of perjury as to collateral matters call into question the credibility of that portion of Mr. Bange’s testimony which establishes the elements of the crime. Under the standard of Valderrama, impeaching testimony is insufficient to warrant a new trial.

Lastly, appellant contends that a new trial must be granted because the prosecutor improperly questioned Mr. Bange concerning his religious beliefs. During the redirect examination of Mr. Bange, the prosecutor questioned him further concerning the reasons for his reluctance to testify, a matter which had been elicited on cross-examination, and the following colloquy ensued:

Q. Why did you contact an attorney? What is your religion, Mr. Bange?
A. Mennonite.
Q. Why did you contact an attorney about this?
A. Because the church congregation had inquired, the ministry had inquired about the article in the paper as to whether I brought the charges which they, Christian folks don’t bring charges against other folks.
Q. And, in fact, this was a police prosecution.
A. I explained that to them but they said that I’m a member of the church and this brings — the church is supposed to remain spotless, that this brings a blemish to the church, that it’s unfortunate that my name has to be where it is even though I did not bring the charges.
Q. Thank you.

N.T. 91-92. Appellant bases his claim of error on 42 Pa.C.S. § 5902(b), which provides:

(b) Religious belief may not be shown. — No witness shall be questioned, in any judicial proceeding, concerning his religious belief; nor shall any evidence be heard upon the subject, for the purpose of affecting either his competency or credibility.

This section prohibits the use of a witness’ religious belief or affiliation to bolster or impeach his credibility. See Commonwealth v. Mimms, 477 Pa. 553, 385 A.2d 334 (1978); Commonwealth v. Griffin, 271 Pa.Super. 228, 412 A.2d 897 (1979). Appellant argues that the prosecutor elicited Mr. Bange’s testimony that he was a Mennonite to bolster his credibility in two ways: first by showing that his reluctance to testify stemmed from the tenets of the Mennonite faith prohibiting bringing legal proceedings against a fellow Christian rather than any reservations as to the veracity of his testimony, and secondly by capitalizing on the good reputation of Mennonites in the Lancaster County area for truth and honesty.

Appellant’s argument fails, however, because he did not preserve the issue for appellate review by objecting at trial to the prosecutor’s questions about Mr. Bange’s religion. Objections to the admission of evidence must be made contemporaneously at trial or the issue is waived. Commonwealth v. Berrios, 495 Pa. 444, 434 A.2d 1173 (1981); Commonwealth v. Hubble, 314 Pa.Super. 99, 460 A.2d 784 (1983). The contemporaneous objection rule is based on the salutary principle that the trial judge should be given an opportunity to rectify errors at the time they are made. Commonwealth v. Peterson, 271 Pa.Super. 92, 412 A.2d 590 (1979).

Because 42 Pa.C.S. § 5902(b) prohibits the questioning of a witness about his religious belief as well as the admission of such evidence, the issue raised by the above-quoted testimony may also be viewed as one of prosecutorial misconduct. Indeed, appellant frames the question in those terms in his brief. However, even if the issue is so viewed, appellant still has failed to preserve the issue for appellate review. Failure to make a timely objection to allegedly improper conduct of the prosecutor acts as a waiver of the claim of error. Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Frazier, 331 Pa.Super. 128, 480 A.2d 276 (1984).

Although appellant acknowledges in his brief that trial counsel did not object to the prosecutor’s questions, he inexplicably fails to recognize the significance of this fact. More specifically, appellant makes no claim that counsel’s failure to object constituted ineffectiveness justifying an exception to the waiver rule. Consequently, we hold that no relief is available to appellant on this issue because it was not properly preserved for appellate review.

The judgment of sentence is affirmed.

      . Appellant also makes several generalized allegations that his trial was tainted by “certain public and political realities” (Appellant’s Brief at 12). Among these are appellant's involvement in efforts to oust Chief Winters of the Manheim Borough police, the candidacy of appellant’s trial counsel for judicial office, and the fact that the assistant district attorney who handled the trial had opposed appellant’s trial counsel in the primary election. These claims are clearly meritless. The prior disputes between appellant and Chief Winters were elucidated and fully explored in their trial testimony, enabling the jury to consider the relations between the two men in assessing their credibility. As for the involvement of appellant's trial counsel and the prosecutor in a judicial campaign, appellant has failed to show how these facts affected the fairness of his trial. Appellant’s trial counsel represented his client skillfully and zealously throughout the trial, and appellant has not produced any evidence that the District Attorney’s Office of Lancaster County abused its prosecutorial discretion or committed any other impropriety.

      . Indeed, we note that both appellant’s trial counsel and his appellate counsel have attempted to introduce further evidence about Mr. Bange’s religious affiliation and his relations with his church. Trial counsel, in his recross-examination of Mr. Bange, continued to inquire into the nature and scope of the restrictions the Mennonite faith imposed on Mr. Bange’s conduct. Appellate counsel’s supplemental reasons in support of his motion for a new trial lists among the items of after-discovered evidence a claim that Mr. Bange “was disciplined by his church body by a form of excommunication because of his bad reputation for truth and honesty and because of his participation in Defendant’s trial.”