author: HESTER, Judge: HOFFMAN, Judge,

text:
    535 A.2d 1120
    COMMONWEALTH of Pennsylvania v. Jeffrey CARR, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 3, 1987.
    Filed Dec. 31, 1987.

      Gerald A. Stein, Philadelphia, for appellant.
    John J. Burfete, Jr., Norristown, for Com., appellee.
    Before CIRILLO, President Judge, and HOFFMAN and HESTER, JJ.
   HESTER, Judge:

On June 27, 1985, a jury convicted Jeffrey Carr, appellant, of first degree murder and possessing an instrument of crime. On February 6, 1986, post-trial motions were denied, and the trial court imposed a sentence of life imprisonment on the first degree murder conviction. We reject appellant’s sixteen allegations of trial error, and affirm.

The evidence establishes that on November 23, 1974, appellant shot his fifteen-year-old victim, Calvin Dantzler, in the head. That evening, Calvin was at a neighbor’s apartment playing cards with the neighbor’s three children and several friends. Appellant, then seventeen, and a friend wanted to join the gathering. Calvin refused, and the two had a fist fight in the hallway. Calvin was the victor. A short while later, appellant returned to the apartment complex, commonly referred to as the “projects,” and shouted at Calvin, taunting him into another fist fight, which Calvin also won.

Appellant then returned to his apartment, found his pistol, sought out Calvin and shot at him twice. Calvin died of one gunshot wound to the head.

Appellant’s June 27, 1985 trial was the second trial of this matter. The first issue we address requires review of the complete history of appellant’s court proceedings as well as the law relating to adolescent confessions.

When appellant was arrested for Calvin’s murder in the early hours of November 24, 1974, he confessed to the killing. After being advised of his Miranda rights, appellant told police about the two fist fights he had with Calvin. He also said that he then “went and got [his] piece and ... went back to the projects.” N.T., 6/25/85, at 250. He next admitted that he sought out Calvin, but said he only shot the victim after he saw him reach for a gun. No weapon was found on or near the victim’s body.

Following denial of a suppression motion, this confession was admitted at appellant’s first trial, which commenced on May 1, 1975. He was convicted of first degree murder, conspiracy and possession of an instrument of crime. On October 7, 1975, post-trial motions were filed and denied.

On July 17, 1975, the Pennsylvania Supreme Court ruled that an accused under eighteen may not effectively waive his constitutional rights against self-incrimination and to counsel unless provided an opportunity to consult with an adult who is interested in his welfare and who has been advised of the youth’s Miranda rights. Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975). McCutchen’s per se exclusionary rule replaced prior law, which analyzed the voluntariness of a juvenile’s confession under a totality of the circumstances standard, with weight given to age. This per se exclusionary rule came to be known as the “interested adult” or McCutchen rule.

Appellant’s prior appellate counsel raised the McCutchen issue, and the supreme court, in Commonwealth v. Carr, 471 Pa. 86, 369 A.2d 1207 (1977), acknowledged that appellant’s incriminating statement should not have been introduced in the 1975 trial since he had not consulted with an informed and interested adult before surrendering his constitutional rights. However, the claim had not been raised in the 1975 post-trial proceedings, and the court determined that it had been waived.

Appellant then filed a petition for post conviction relief, alleging the ineffectiveness of trial counsel for failing to raise the interested adult rule in post-trial motions as well as the ineffectiveness of appellate counsel for failing to raise trial counsel’s ineffectiveness for not raising the issue. On August 26, 1983, we granted appellant a new trial on that basis. Commonwealth v. Carr, 320 Pa.Super. 1, 466 A.2d 1030 (1983).

The Commonwealth, following denial of en banc reargument on November 8, 1983, appealed the 1983 decision. That appeal was quashed on January 22, 1985. Commonwealth v. Carr, 506 Pa. 566, 486 A.2d 1328 (1985).

In the meantime, on April 17, 1984, McCutchen was overruled, and the supreme court readopted the rule in effect when appellant’s confession was taken. Common wealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984). The Williams court determined that a per se exclusionary rule was “overly protective and unreasonably paternalistic,” and provided “means for juvenile offenders to secure suppression of confessions in fact given in a knowing, intelligent and voluntary manner.” Id., 504 Pa. at 520, 475 A.2d at 1287, quoting Commonwealth v. Christmas, 502 Pa. 218, 223, 465 A.2d 989, 992 (1983). The court in Williams stated that juveniles could be adequately protected against the disadvantages of immaturity in a manner more accommodating to the interests of society and justice. The new test for determining the voluntariness of a juvenile’s confession was announced as follows:

The requirements of due process are satisfied, and the protection against the use of involuntary confessions which law and reason demand is met by application of the totality of circumstances analysis to all questions involving the waiver of rights and the voluntariness of confessions made by juveniles. All of the attending facts and circumstances must be considered and weighed in determining whether a juvenile’s confession was knowingly and freely given. Among those factors are the juvenile’s youth, experience, comprehension, and the presence or absence of an interested adult.

Id., 504 Pa. at 521, 475 A.2d at 1283.

On February 11, 1985, the supreme court returned appellant’s record to the trial court for retrial. At appellant’s second suppression hearing, the trial court decided to determine the voluntariness of appellant’s confession under “available” law at that time, which was Williams. N.T., 6/17/85, at 6. Following the suppression hearing, the trial court determined that the confession was admissible under the Williams standard.

Appellant’s second allegation of trial error, which is the first issue we address, is that the trial court erred in determining the voluntariness of his confession under the Williams standard. Appellant argues that MeCutchen should have been applied.

The most recent supreme court decision on application of new constitutional standards is found in Commonwealth v. Simons, 514 Pa. 10, 522 A.2d 537 (1987). At issue was the constitutional right against double jeopardy in the context of prosecutorial misconduct. In that context, as in the area of juvenile confessions, the standard of reviewing whether prosecutorial misconduct prohibited retrial on double jeopardy grounds had been changing in a manner unfavorable to criminal defendants.

In Simons, the defendant had been convicted of robbery in 1975. He successfully obtained a new trial in 1980 on the basis that the prosecutor had concealed from the jury the terms of a plea agreement between the Commonwealth and a prosecution witness. Simons then moved to dismiss the charges against him, arguing that retrial would violate his double jeopardy rights. The trial court denied the motion, and we affirmed.

At issue was whether the conduct of the prosecutor in the 1975 trial was mere error, or whether it was overreaching, triggering the double jeopardy clause. The standard for determining whether overreaching was present had been subject to different standards of review from 1977 to the time of the Simons decision. In Simons, the Pennsylvania Supreme Court overruled a 1982 standard for analyzing prosecutorial overreaching. Even though it was announcing a new standard less favorable to criminal defendants, it applied that standard to the case before it. In doing so, the court stated:

Because this case presently is on appeal, [the new] standard of review applies immediately. The Appellant’s right not to be held in double jeopardy, in any event, is not being damaged by this decision because we are describing anew only the present applicable standard of review and the circumstances which will cause doublejeopardy to attach but not changing the right itself The Appellant is getting the benefit of what our law mandates as it is being determined at the time of the appeal Double jeopardy, nevertheless, continues to mean what it has always meant; no new rights were created by [the prior standard of review] nor are they being subtracted by virtue of this analysis. We find a recent analogy for this analysis in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), where we likewise altered the standard of review in cases involving probable cause for search warrants by adopting the “totality of circumstances” test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We concluded in Gray that “Gates did not create any new rights in defendants; it merely changed the analysis of the sufficiency of the probable cause allegation in a search warrant.” Id., 509 Pa. at 487-88, 503 A.2d 921. See also, Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) (per curiam) for a similar analysis. In like manner, we now require new circumstances to satisfy the protection against double jeopardy in cases involving re-trial because of prosecutorial misconduct.

Id., 514 Pa. at 16, 522 A.2d at 541 (emphasis added); see also Commonwealth v. Bebout, 335 Pa.Super. 275, 484 A. 2d 130 (1984), where we applied the test announced in Williams to determine whether a juvenile had knowingly and voluntarily given a confession on May 18, 1981, when McCutchen was law. Williams was also applied to a 1981 confession in Commonwealth v. Waters, 334 Pa.Super. 513, 483 A.2d 855 (1984).

Thus, appellant’s right to protection against unknowing or involuntary waiver of constitutional rights before confessing remained inviolate; only the standard of reviewing whether his confession was knowing and voluntary was, temporarily, changed. The trial court was correct in applying the law in effect at the time of the suppression hearing.

The dissent disagrees with retroactive application of the Williams rule to this case. However, under the analysis contained in Simons, which is the most recent supreme court pronouncement in this area, retroactive application is clearly appropriate.

As we noted in Commonwealth v. McCormick, 359 Pa. Super. 461, 519 A.2d 442 (1986), there are several approaches to retroactivity, and the Pennsylvania Supreme Court has utilized all of them recently. Under the common law approach, an appellate court applies the law as it exists at the time it is deciding the case before it. Thus, new law is given full retroactive efféct to all cases pending at the time of the decision.

Under this approach, utilized by the supreme court in Simons in 1987, Williams should be applied to appellant’s case. Appellant initiated the uninterrupted process leading to the instant proceedings by way of a PCHA petition requesting relief on the basis of McCutchen, and he was granted a new trial. During the pendency of the Commonwealth appeal from our grant of a new trial, Williams was decided. Under the common law approach, the rule announced in Williams would govern all subsequent proceedings including his retrial and our decision herein since Williams is currently the law as we decide this appeal. See Commonwealth v. McCormick, supra, 359 Pa.Super. at 472, 519 A.2d at 448.

Furthermore, we believe a crucial point is that McCutchen should never have been applied to appellant’s confession in the first instance. The pure common law approach is modified in cases involving collateral proceedings. Under the Pennsylvania Supreme Court decisions in Commonwealth v. Gillespie, 512 Pa. 349, 516 A.2d 1180 (1986); Commonwealth v. Harper, 512 Pa. 155, 516 A.2d 319 (1986) and Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983), a new rule of law will not be applied to any case on collateral review. In order to be applied to a defendant, the new decision must be handed down during the pendency of the defendant’s direct appeal and the issue must be properly preserved during that direct appeal. Appellant did not preserve the McCutchen issue during his direct appeal. Commonwealth v. Carr, 471 Pa. 86, 369 A.2d 1207 (1977).

Finally, Williams is properly given retroactive application in this case under the modified common law rule discussed by the dissent. Under the modified common law rule, a new rule of law has retroactive effect in the absence of constitutional limitations unless the new rule is a clear break with the past. Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). Simons and Gray confirm that there are no constitutional limitations on retroactive application of Williams, and a review of the law regarding juvenile confessions clearly demonstrates that Williams was not a break with the past, but merely one in a series of cases changing the rules applicable to juvenile confessions.

In Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971); and Commonwealth v. Porter, 449 Pa. 153, 295 A.2d 311 (1972), a totality of the circumstances test was applied. The McCutchen rule evolved out of Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974) and Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975), and had already been modified by Commonwealth v. Christmas, 502 Pa. 218, 465 A.2d 989 (1983), before it was expressly overruled by Williams, which reinstated the totality of the circumstances standard in 1984. Thus, Williams was not a “clear break” with the past, but the culmination of a long line of cases in a fluctuating area of the law.

A totality of the circumstances standard was the law when appellant, then seventeen and one-half, confessed to this reprehensible murder. He did not request that an adult be contacted. He was informed of his rights, read them himself, and acknowledged that he understood them. He was not mentally impaired. The police did nothing improper under the law in effect in 1974.

We believe Williams’ logic applies with force:

[ U]pon re-examination of the per se rule promulgated by McCutchen, we believe that protection of juveniles against the innate disadvantages associated with the immaturity of most youth may well be achieved in a manner that affords more adequate weight to the interests of society, and of justice, while avoiding per se applications of the interested and informed adult rule that serve, in an overly protective and unreasonably paternalistic fashion, to provide means for juvenile offenders to secure suppression of confessions in fact given in a knowing, intelligent and voluntary manner.

Commonwealth v. Williams, 504 Pa. at 520, 475 A.2d at 1287, quoting Commonwealth v. Christmas, 502 Pa. at 223, 465 A.2d at 992.

We now address appellant’s remaining fifteen issues. He first argues that he was not retried within the 120 day limit imposed by Pa.R.Crim.P. 1100. Rule 1100 requires trial within 120 days of remand of the record by an appellate court when that court has granted a new trial. The docket in this case indicates that we granted appellant a new trial on August 28, 1983; we denied argument en banc on November 8, 1983; pursuant to a Commonwealth allocatur request, the record was transferred to the Pennsylvania Supreme Court on December 19, 1983; the appeal was quashed by the supreme court on January 22, 1985; and the record was returned to the trial court on February 11,1985. No “double” requests for reargument appear, as alleged by appellant. Appellant then waived his Rule 1100 rights on June 6, 1985, and the case proceeded to trial within the extension granted. His Rule 1100 claim is, therefore, merit-less.

Issues seven, nine and thirteen all relate to the fact that appellant’s testimony at his first trial was introduced during his retrial. Appellant testified at his first trial that he was not at the projects at the time Calvin was shot, but had fallen asleep in a hoagie shop until after the shooting occurred. This testimony contradicted his confession. The prior testimony was properly admitted at trial under Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982), and Commonwealth v. Ferguson, 358 Pa.Super. 98, 516 A.2d 1200 (1986), and the prosecutor was properly permitted to comment on this testimony and its conflict with the confession during his closing argument. Furthermore, this closing commentary cannot be construed as a reference to appellant’s failure to testify during his second trial. Issues seven, nine, and thirteen are therefore meritless.

Nine of the remaining eleven allegations of trial error are raised in the context of ineffective assistance of trial counsel by appellant’s new, appellate counsel. We will, therefore, dispose of the remaining two claims not raised in that context.

Appellant asserts that the trial court improperly failed to redefine intent when asked to do so by the jury during deliberations. This assertion is factually incorrect. While the jury did ask the trial court to redefine intent, the trial court and both trial counsel were concerned over whether the court should recharge on first degree or third degree intent or both. The trial court asked the jury to be more specific as to their difficulty. The jury withdrew the question. Nothing improper occurred.

Appellant also contends that the verdict should be struck inasmuch as one of the jurors contacted defense counsel after trial and said that he was pressured by the other jurors into rendering his decision. However, once the jury is polled and the verdict is recorded, the process by which the verdict is reached is not subject to impeachment. Commonwealth v. Fowler, 362 Pa.Super. 81, 523 A.2d 784 (1987); cf. Commonwealth v. Williams, 514 Pa. 62, 522 A.2d 1058 (1987). Since jurors are incompetent to testify regarding their deliberations, the trial court properly refused to hear the juror’s testimony which was offered to impeach the verdict.

Appellant raises numerous allegations of trial counsel’s ineffectiveness. Our standard for reviewing the effectiveness of counsel is well established.

When reviewing the effectiveness of counsel, we determine first whether the underlying claim has merit. If it does, we then ask whether counsel’s handling of the matter had some reasonable basis designed to effectuate his client’s interests. Counsel is not ineffective unless there was no reasonable basis for the action, and counsel may not be faulted for failing to take baseless or merit-less action. Finally, a finding of ineffectiveness requires a showing that the course of action pursued by counsel was prejudicial to the defendant.

Commonwealth v. Blagman, 350 Pa.Super. 367, 371, 504 A.2d 883, 885 (1986) (citations omitted); see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). Furthermore, appellant carries the burden of proving his counsel’s ineffectiveness. Commonwealth v. Durah-El, 344 Pa.Super. 511, 496 A.2d 1222 (1985).

Appellant argues that trial counsel was ineffective for failing to object to a passing reference to appellant’s “criminal abstract” by one of the Commonwealth’s witnesses. We are not convinced that this inevitably implied prior criminal activity on appellant’s part as is required by Commonwealth v. Griffin, 357 Pa.Super. 308, 515 A.2d 1382 (1986), in order to warrant a new trial. Further, references to prior criminal activity do not result in a new trial unless prejudice is demonstrated, Commonwealth v. Nichols, 485 Pa. 1, 400 A.2d 1281 (1979); Commonwealth v. Thomas, 361 Pa.Super. 1, 521 A.2d 442 (1987), and this reference does not approach a prejudicial level. Therefore, appellant’s underlying claim is meritless, and trial counsel was not ineffective for failing to object to the testimony.

Appellant next argues that trial counsel was ineffective for failing to object to the prosecutor’s opening statement that “fifty” witnesses saw the two fist fights between appellant and his victim, when, in fact, considerably fewer than fifty witnesses testified about the fights., Improper remark in opening argument is not a basis for relief unless the unavoidable effect is to so prejudice the jury as to render it incapable of objective judgment. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985). This comment does not approach that level of prejudice, and the claim is meritless. Trial counsel was, therefore, not ineffective for failing to object.

Two of appellant’s claims concern trial counsel’s failure to object to introduction of two photographs: one of the blood-stained alley where Calvin was shot, and one of Calvin which shows him in peaceful repose. Both were black and white; Calvin, as pictured, is not bloody; and his wounds do not appear. The photographs were admissible under Commonwealth v. Garcia, 505 Pa. 304, 479 A.2d 473 (1984); Commonwealth v. Truesdale, 502 Pa. 94, 465 A.2d 606 (1983); Commonwealth v. Howard, 358 Pa.Super. 259, 517 A.2d 192 (1986); and Commonwealth v. Fields, 317 Pa.Super. 387, 464 A.2d 375 (1983). As this claim is merit-less, trial counsel was not ineffective for failing to object to their introduction.

Next, appellant charges trial counsel with ineffectiveness for failing to object to the trial court’s jury instructions on involuntary manslaughter and provocation. It is axiomatic that we read and review the court’s charge in its entirety. Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980). The general effect of the charge controls and isolated remarks are not grounds for reversal. Commonwealth v. Saksek, 361 Pa.Super. 173, 522 A.2d 70 (1987); Commonwealth v. Alvin, 357 Pa.Super. 509, 516 A.2d 376 (1986). Our review of the trial court’s charge on provocation and involuntary manslaughter convinces us that it accurately and fairly described the law. Trial counsel was not ineffective for failing to object to it.

Appellant also asserts that trial counsel was ineffective for failing to explain the legal term “specific intent” to his expert witness. At trial, appellant offered expert testimony on his inability to form the specific intent to commit first degree murder in light of his ingestion of drugs and alcohol. Although the expert testified extensively about appellant’s diminished ability to control himself due to his ingestion of drugs and alcohol, he hedged when asked if appellant had the specific intent to kill, stating he did not understand the legal term.

Appellant now argues that trial counsel was ineffective for not preparing the witness to answer this question. Psychiatric testimony on legal intent, however, cannot extend to testimony as to whether the defendant had the specific intent to kill within the legal meaning of the term. Commonwealth v. Terry, 513 Pa. 381, 398, 521 A.2d 398, 408 (1987); Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982). This is the jury’s province. Trial counsel was thus not ineffective for failing to prepare the expert on a subject about which he was incompetent to testify.

Trial counsel is also accused of ineffectiveness for failing to object to the procedure used to refresh three witnesses’ recollection of the 1974 events. This claim is meritless as each of the three witnesses had his memory properly refreshed when, after he was unable to remember the answer to the question asked, he reviewed his prior statement, stated that it refreshed his memory, and proceeded to testify. See Commonwealth v. Proctor, 253 Pa.Super. 369, 385 A.2d 383 (1978); see also Dean Witter Reynolds, Inc. v. Genteel, 346 Pa.Super. 336, 499 A.2d 637 (1985); N.T., 6/24/85, at 57-58; and N.T., 6/25/85, at 126-27, 236-37.

Appellant’s fifteenth argument is frivolous. He asserts that counsel was ineffective for failing to object to certain testimony as hearsay. As the challenged testimony was not offered for the truth of the matter asserted therein, it was not hearsay. Counsel was not ineffective for failing to object to the admissible testimony.

Finally, trial counsel was not ineffective for failing to request that the jury be instructed on “unreasonable belief killing justifiable” voluntary manslaughter. See 18 Pa.C.S. § 2503(b). The jury was charged only on “provocation” voluntary manslaughter. See 18 Pa.C.S. § 2503(a). A charge under section 2503(b) should be given only where the evidence would reasonably support such a verdict. Com monwealth v. Carter, 502 Pa. 433, 444, 466 A.2d 1328, 1333 (1983); Commonwealth v. Mays, 361 Pa.Super. 554, 523 A.2d 357 (1987). Here, no such evidence was introduced. Appellant did not testify in this trial, and had testified previously that he was not present at the shooting. Further, his confession, coupled with the fact that no weapon was found on the victim, belies this theory of defense. Since the charge was not warranted, counsel cannot be deemed to be ineffective for failing to request it.

Judgment of sentence affirmed.

HOFFMAN, J., concurs and dissents with an opinion.

HOFFMAN, Judge,

concurring and dissenting:

I concur in the majority’s disposition of appellant’s Rule 1100 issue. I dissent, however, from the determination that the lower court properly applied the Williams standard in ruling on the admissibility of appellant’s confession. Accordingly, I would reverse the judgment of sentence and remand the case to the lower court for a new trial. Because I would remand the case for a new trial, I would find it unnecessary to address appellant’s remaining issues.

Appellant contends that the lower court erred in giving retroactive effect to the standard announced in Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984). Appellant notes that Williams was announced after appellant’s case “was originally completed.” Appellant’s Brief at 13. Appellant argues that the trial court should have applied the “interested adult rule,” as this Court ordered when the case was last here. See Commonwealth v. Carr, 320 Pa. Superior Ct. 1, 9, 466 A.2d 1030, 1034-35 (1983) (Opinion by Cirillo, J.). In analyzing the propriety of retroactive application of a new decision, our courts have utilized two main approaches: the common law rule and the modified common law rule. See Commonwealth v. McCormick, 359 Pa. Superior Ct. 461, 470-73, 519 A.2d 442, 447-50 (1986). For reasons that follow, I would find that under either test, the Williams standard was improperly applied.

The policy underlying the common law rule is that “ ‘it is unfair to litigants whose case is not yet final to subject them to a law that is now recognized as offensive. Evenhanded decisionmaking requires that similarly situated individuals on direct appeal be treated the same.’ ” Commonwealth v. Brown, 494 Pa. 380, 385, 431 A.2d 905, 908 (1981) (quoting Commonwealth v. Hill, 492 Pa. 100, 115, 422 A.2d 491, 499 (1980) (Opinion in Support of Reversal, Roberts, J.)). The common law approach thus requires that

where an appellate decision overrules' prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.

Commonwealth v. Melilli, 361 Pa.Superior Ct. 429, 435, 522 A.2d 1107, 1110 (1987) (quoting Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983)); accord Commonwealth v. Carr, 320 Pa. Superior Ct. 1, 9, 466 A.2d 1030, 1034 (1983) (Opinion by Cirillo, J., now P.J.). The main focus of the common law approach is the timing of the announcement of the new rule. Our courts consistently have held that the new rule will apply if it is announced at any time “up to and including and direct appeal” of the case sub judice. See, e.g., Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983); Commonwealth v. Brown, supra; Commonwealth v. Melilli, supra; cf. Commonwealth v. McCloud, 477 Pa. 207, 383 A.2d 896 (1978) (new rule applies to case on appeal nunc pro tunc). Conversely, “a new rule of law to which we give full retroactive effect, will not be applied to any case on collateral review unless that decision was handed down during the pendency of appellant’s direct appeal and the issue was properly preserved there.” Commonwealth v. Gillespie, 512 Pa. 349, 355, 516 A.2d 1180, 1183 (1986) (emphasis added); see also Commonwealth v. Harper, 512 Pa. 155, 516 A.2d 319 (1986) (per curiam); Commonwealth v. Green, 365 Pa.Superior Ct. 142, 146, 529 A.2d 13, 15 (1987).

In the present case, the result of the application of the common law rule is that the Williams standard should not have been given retroactive effect by the lower court. The decision in Commonwealth v. Williams was announced on April 17, 1984, while the present case was pending before our Supreme Court on a collateral appeal, under the Post-Conviction Hearing Act. See Commonwealth v. Green, supra. Because Williams was not decided during the period “up to and including” the direct appeal in the present case, it was improperly applied here.

The second approach, the modified common law rule, creates an exception to the common law rule and requires that “where the new rule is a ‘clear break with the past’ or where there are constitutional limitations,” the new rule does not have retroactive effect Commonwealth v. McCormick, supra, 359 Pa.Super.Ct. at 470, 519 A.2d at 447; see, e.g., Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985) (constitutional issue); Commonwealth v. Ges chwendt, 500 Pa. 120, 454 A.2d 991 (1982) (plurality) (clear break with the past). The United States Supreme Court has defined the phrase, “clear break with the past”, as a ruling that

caused ‘such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one.’ Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court, or disapproves a practice this Court arguably has sanctioned in prior cases, or overturns, a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.

United States v. Johnson, 457 U.S. 537, 551, 102 S.Ct. 2579, 2588, 73 L.Ed.2d 202 (1982) (citations omitted) (quoted in Commonwealth v. Geschwendt, 500 Pa. 120, 130 n. 5, 454 A.2d 991, 997 n. 5 (1982) (plurality)).

Here, the decision in Commonwealth v. Williams, does represent a “clear break with the past” in that our Supreme Court expressly disavowed a prior practice:

We now reject the application of a rebuttable presumption that a juvenile is incompetent to waive his constitutional rights without first having an opportunity to consult with an interested or informed adult. The presumption adopted in Christmas serves no useful analytical purpose. The so-called presumption is not a presumption at all since it merely verifies the Commonwealth’s established burden of proving a knowing, intelligent and voluntary waiver on the part of a juvenile.

Commonwealth v. Williams, supra, 504 Pa. at 521, 475 A.2d at 1287-88. Consequently, I would hold under the modified common law approach, Williams should not have been applied to the case at bar. See Commonwealth v. Geschwendt, supra.

Finally, the interested adult rule, as articulated in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669, cert denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1975), requires that

an accused under 18 years of age may not effectively waive his constitutional rights against self incrimination and the right to counsel without an opportunity to consult with an attorney or an adult, interested in the welfare of the juvenile suspect.

Commonwealth v. Carr, 320 Superior Ct. 1, 7-8, 466 A.2d 1030, 1033-34 (1983) (Opinion by Cirillo, J., now P.J.). In this case, appellant was not permitted to consult with an interested adult, and therefore under this per se rule, his confession should have been suppressed.

For the foregoing reasons, I would hold that the confession should be suppressed, and I would remand the case for a new trial.

      . Unfortunately, these cases were decided after our decision granting retrial in Commonwealth v. Carr, 320 Pa.Super. 1, 466 A.2d 1030 (1983).

      . In some cases in which the new rule would otherwise have been given retroactive effect, our courts have employed a second tier of analysis, known as “selective retroactivity” See Commonwealth v. McCormick, 359 Pa. Superior Ct. 461, 471, 519 A.2d 442, 447 (1986). See, e.g., Commonwealth v. McFeely, 509 Pa. 394, 502 A.2d 167 (1985) (court declined to apply retroactively new rule invalidating warrant-less searches in home, absent exigent circumstances, even though rule was announced after appellant was arrested and before he went to trial); Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980) (same). But see Commonwealth v. Harper, 512 Pa. 155, 516 A.2d 319 (1986) (Concurring Opinion by Papadakos, J.) (even though new rule was announced more than six years after appellant’s sentences were final, and was held to be non-retroactive, Justice Papadakos discussed selective retroactivity approach, and concluded that new rule also would not be retroactive under that approach). Because of my conclusion that Williams is not entitled to retroactive effect under the common law rule and the modified common law rule, I need not decide what the result would be under the selective retroactivity approach.

      . Appellant filed his direct appeal on October 15, 1975, and our Supreme Court announced its decision in the case on February 28, 1977, or more than seven years before the decision was rendered in Commonwealth v. Williams.

      . To reiterate, I believe that the order from this Court, see Commonwealth v. Carr, 320 Pa.Superior Ct. 1, 466 A.2d 1030 (1983) (Cirillo, J., now P.J.), granting a new trial to appellant and instructing the lower court to apply the McCutchen rule in this case, should have been followed.


source: Caselaw Access Project

author: BROSKY, Judge: CAVANAUGH, Judge,

license: Public Domain

text:
    535 A.2d 1130
    COMMONWEALTH of Pennsylvania v. Richard BIZZARO, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 25, 1987.
    Filed Dec. 31, 1987.

      Michelle M. Hawk, Erie, for appellant.

      Timothy J. Lucas, Assistant District Attorney, Erie, for Com.
    Before CAVANAUGH, BROSKY and WIEAND, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence following a jury conviction of corruption of minors, indecent assault and involuntary deviate sexual intercourse involving appellant’s six-year old daughter.

Appellant presents eight issues for our review:

I. Whether the trial court erred in allowing Dr. Fagenholz to testify as to her opinion of the truthfulness of the child-victim’s version of events.
II. Whether appellant’s Sixth Amendment right of confrontation was violated when the court permitted the introduction into evidence of the victim’s statement under an exception to the hearsay rule but the victim herself never testified.
III. Whether the trial court erred in refusing to grant appellant’s motion that the child-victim’s testimony be videotaped for use at trial.
IV. Whether the trial court erred in refusing to instruct the jury that the victim’s statements, which were admitted under an exception to the hearsay rule, should not be considered as substantive evidence.
V. Whether there was sufficient evidence to convict appellant since the victim’s statements, which were admitted under an exception to the hearsay rule, did not constitute substantive evidence.
VI. Whether the trial court erred in not allowing appellant to call to the witness stand Larry Bizzaro, the defendant’s brother, who would have admitted that he was present in the house on January 10, 1986, who has a prior conviction for sexual assaults on children, and who confessed to the sexual abuse of Annie Bizzaro.
VII. Whether the trial court erred in not allowing appellant to call Robert Workman to the stand to establish that Larry Bizzaro had confessed to sexually assaulting Annie Bizzaro.
VIII. Whether the trial court erred in refusing to charge the jury that it could not consider the truthfulness of appellant’s confession when considering the voluntariness of that confession.

We vacate the judgment of sentence and remand for entry of an order of abatement upon record certification of appellant’s death.

Initially, we are confronted with an unusual problem focusing on the status of this case before us. Our determination whether to address the merits of this appeal and, assuming we do, the appropriate disposition thereof hinge upon our resolution of this preliminary concern.

At oral argument, this Court was advised by appellant’s counsel that appellant had since died. This fact was not disputed by the Commonwealth. Counsel for appellant then requested us to consider this matter on the merits, nonetheless. Pennsylvania Rule of Appellate Procedure 502(a) permits any party to make a suggestion of death on the record. The Rule then states that proceedings may be had as this court directs. The open-endedness of this Rule is evident. However, the weight of authority in this Commonwealth is that the death of an appellant pending appeal does not moot the appeal. Commonwealth v. Walker, 447 Pa. 146, 288 A.2d 741 (1972); Commonwealth v. Sargent, 253 Pa.Super. 566, 385 A.2d 484 (1978); Commonwealth v. Culpepper, 221 Pa.Super. 472, 293 A.2d 122 (1972).

In Commonwealth v. Walker, supra, counsel for the then deceased appellant filed a petition requesting that, because of his client’s decease, the appeal be dismissed and appellant’s conviction for homicide be abated ab initio. The Commonwealth concurred in the request to dismiss the appeal but opposed abatement of the proceedings ab initio. The Supreme Court rejected both motions and stated:

We ... believ[e] instead that it is in the interest of both a defendant’s estate and society that any challenge initiated by a defendant to the regularity or constitutionality of a criminal proceeding be fully reviewed and decided by the appellate process.

Id. 447 Pa. at 148, n. *, 288 A.2d at 742, n. *.

The Court then affirmed the judgment of sentence on the merits. Here, unlike Walker, neither the Commonwealth nor appellant’s counsel requested abatement of the proceedings or dismissal of the appeal. Rather, appellant’s counsel requested this court to consider the merits of this appeal despite appellant’s death, and the Commonwealth voiced no opposition.

In Commonwealth v. Sargent, supra, our Court considered the merits of the appeal even though the co-defendant/appellant, George Lee, had since died. There, we vacated both judgments of sentence and, due to improper and prejudicial prosecutorial remarks made in summation, we reversed and remanded for a new trial. It does not appear that any request to consider or dismiss the appeal or abate the proceedings was made to this court.

Finally, in Commonwealth v. Culpepper, supra, we vacated a then deceased appellant’s judgment of sentence on double jeopardy grounds after the trial court declared a mistrial. As in Commonwealth v. Walker, supra, the Commonwealth sought dismissal of the appeal on the basis of mootness. However, unlike the Walker case, appellant’s counsel objected and, instead, asked this Court to address the merits “in the interests of justice.” Commonwealth v. Culpepper, supra, 221 Pa.Super. at 477, n. 3, 293 A.2d at 124, n. 3. We agreed to do so, relying upon the rationale of Commonwealth v. Walker, supra.

Consonant with the directive of our Supreme Court and the teaching of this court, we, too, consider it proper, in the interests of justice, to address the merits of this appeal, especially since counsel for appellant, at oral argument, requested that we do so, and the Commonwealth proffered no objection.

However, the more troubling problem looming before us revolves around the appropriate disposition to be made here, considering the unique feature of an unavailable-for-retrial defendant and compounded by our determination, based upon examination of the record and the parties’ briefs, to grant relief to appellant. Normally, our assessment of a record containing like errors would lead us to conclude that a new trial is warranted, and we would so order. Because we are not oblivious or insensitive to the difficulties attendant to the trial of a defendant who is unable to be present to defend himself, we will remand to the trial court for the entry of an Order of abatement upon record certification of appellant’s death. We believe this procedure to be the one which best resolves the unique factual situation at hand.

We now proceed to address the merits of this appeal. Appellant protests the allowance of testimony by Dr. Linda Fagenholz, a board-certified pediatrician who examined the victim, concerning the veracity of the child-victim’s delineation of the events which resulted in the instant charges. See, particularly, N.T., 7/11/86, 64, 81, 82, 84. As a corollary argument, appellant complains that his Sixth Amendment right to confrontation was violated when the trial court permitted Dr. Fagenholz’s testimony in this regard.

Our Supreme Court addressed this same child veracity issue in Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), where it held that the trial court erred in permitting a board certified pediatrician to testify regarding the veracity of eight-year old victims of sexual abuse:

It is an encroachment upon the province of the jury to permit admission of expert testimony on the issue of a witness’ credibility. Commonwealth v. O’Searo, 466 Pa. [224] at 228-229, 352 A.2d [30] at 32 [ (1976) ]. Indeed, to permit expert testimony for the purpose of determining the credibility of a witness ‘would be an invitation for the trier of fact to abdicate its responsibility to ascertain the facts relying upon the questionable premise that the expert is in a better position to make such a judgment.’ Id.

Id., 512 Pa. at 443-44, 517 A.2d at 922.

Such testimony, admitted as evidence, would encourage jurors to shift their focus from determining the credibility of the particular witness who testified at trial, allowing them instead to defer to the so-called “expert” assessment of the truthfulness of the class of people of which the particular witness is a member. In addition, such testimony would imbue the opinions of “experts" with an unwarranted appearance of reliability upon a subject, veracity, which is not beyond the facility of the ordinary juror to assess.

Id., 512 Pa. at 444, 517 A.2d at 922. (Emphasis in text). Consequently, we hold that Commonwealth v. Seese, supra, squarely addresses this issue, and no further elaboration on this point is necessary.

Similarly, we find support for appellant's contention— that he be permitted to confront the child victim through the use of videotaping — in a recent en banc decision of this Court authored by Judge Wieand and joined in by the author of this Opinion. Commonwealth v. Ludwig, 366 Pa.Super. 361, 531 A.2d 459 (1987). The Ludwig court held that the confrontation clause is satisfied by the use of closed circuit television to enable the child victim to testify despite any constitutional or statutory “face-to-face” requirement. It stated:

The use of closed circuit television in child abuse cases, where the child is unable or reluctant to testify against an adult member of the family, is a minimally intrusive infringement on the right of confrontation. Considerations of public policy require that testimony from the alleged victim of abuse be received without further psychological injury to the child. So long as the right of cross-examination is preserved in such cases and all interested persons can observe the alleged victim as he or she testifies, the use of closed circuit television is not prohibited by the confrontation clause of the federal or state constitution.

Id., 366 Pa.Superior Ct. at 369, 531 A.2d at 463.

The reliability of an abused child’s testimony does not depend upon his or her ability to withstand the psychological trauma of testifying in a courtroom under the unwavering gaze of a parent who, although a possible abuser, has also been provider, protector, and parent. The reliability of the child’s testimony can be assured in such cases by requiring the child to submit to cross-examination while the jury and the accused observe the demeanor of the witness as he or she responds to questions. In [Ludwig] this was accomplished by closed circuit television.

Id., 366 Pa.Superior Ct. at 370, 531 A.2d at 463.

Judge Wieand also addressed the problem of potential inadmissibility of evidence in a criminal proceeding if a contrary result, i.e. a conclusion that the absence of eyeball-to-eyeball contact is inherently unreliable, were achieved by the Ludwig court.

If this test is to be deemed an adjunct of the right to confront one’s accuser, much of the evidence relied upon by courts of law will be rendered inadmissible. In criminal trials, courts would not be permitted to receive testimony recorded via depositions, testimony given at a prior trial, dying declarations, statements of a conspirator made during a conspiracy, and business and public records. This is not the law, nor should it be. The test advanced by Ludwig would also present potential confrontational problems with respect to blind witnesses, some physically disabled witnesses, and witnesses who refuse to look at an accused while giving testimony.

Id., 366 Pa.Superior Ct. at 369-370, n. 8, 531 A.2d at 463, n. 8.

We wish to emphasize that in Ludwig, closed circuit television was utilized to enable the child victim to testify against her abuser. The defendant there contested the use of this alternate form of testimony as violative of his right to confrontation. Here, on the other hand, appellant requested the trial court to permit videotaping of the child’s testimony prior to trial for use at trial. The Commonwealth refused to call the victim, stating that it was not required to do so and, further, that the child was in the Courthouse available to appellant. The trial court refused appellant’s request (N.T., 7/14/86, 45-46). The Commonwealth, instead, called Dr. Fagenholz, as set forth supra at 1133 and infra at 1135. However, we do not consider that the difference between Ludwig and the instant matter would require us to reach a contrary result. We read Ludwig to stand for the proposition that the allowance of the testimony of a child-victim by alternate means in abuse cases does not violate a defendant’s Sixth Amendment right to confront witnesses against him. Appellant’s denial of that right here was two-fold: first, his request to “confront” the child-victim by means of videotaping, in his presence, her testimony for use at trial was refused by the trial court; secondly, and in lieu of the requested videotaping, the trial court permitted Dr. Fagenholz to take the stand and make assertions relative to the child’s veracity and to testify on the child’s behalf, in effect, concerning the events culminating in the charges against appellant.

It is for these errors that we are compelled to vacate appellant’s judgment of sentence and remand this matter for the entry of an Order of abatement upon record certification of appellant’s death.

In a recently published article in the National Law Journal, Professor Wallace J. Mlyniec, Director of the Georgetown University Law Center’s juvenile justice clinic, observed that the Framers of the United States Constitution, when fashioning the Confrontation Clause in 1791, could not have envisioned the use of videotapes, closed-circuit television or one-way mirrors now used in modern courtrooms to minimize the emotional trauma of a child-victim testifying in an abuse case.

Professor Mlyniec states, “[Y]ou have to make allowances for the child witness.” Id. at 1, col. 4. He further explained that because children may be confused easily by defense counsel, especially since they are in a type of setting which is the “absolute antithesis to anything a child should be left in” and lack the communication skills possessed by adults, “[s]ome accommodation ... is not out of the question.” Id.

The National Law Journal article also states that this Commonwealth is one of twenty-one jurisdictions which allows closed-circuit television to communicate the child-victim’s live testimony from another room and one of eighteen jurisdictions that specifically provides that the child-victim shall not see or hear the accused during the child’s testimony. See 42 Pa.C.S.A. § 5985(a). Moreover, we are among thirty-three other jurisdictions which permit and admit a child’s videotaped deposition for use at trial with the opportunity for the defendant to see and hear the child testify, albeit out of sight and hearing of the child. See 42 Pa.C.S.A. § 5984(a).

Thus, for the reasons set forth in this Opinion, we vacate the judgment of sentence and remand this matter for entry of an order of abatement upon record certification of appellant’s death. Jurisdiction relinquished.

CAVANAUGH, J., files a concurring opinion.

CAVANAUGH, Judge,

concurring:

I agree with the majority’s disposition that on the basis of the recent Supreme Court holding in Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), the testimony of Dr. Fagenholz was improperly admitted. For this reason, the judgment of sentence should be reversed.

I further agree that the conduct of a new trial is an impossibility and that entry of an order of abatement is proper upon record certification as to appellant’s death.

I would not reach the issue of the propriety of the denial of appellant’s request for videotaped testimony of the minor victim. This issue only becomes relevent in the event a new trial were a remedy. Since a new trial is not possible under the circumstances, I take no position on this issue.

      . Ludwig held that the testimony of a child victim may be taken by closed circuit television during the trial itself with provision for cross-examination. As the court there correctly acknowledged, this is now legislatively provided for. 42 Pa.C.S.A. § 5985(a). See 366 Pa.Superior Ct. at 369, n. 7, 531 A.2d at 463, n. 7. In the case at bar, appellant requested in Chambers before trial that the child victim’s testimony be videotaped for use at trial. A fair reading of the trial transcript in this regard leads to the conclusion that appellant actually requested that a videotaped deposition of the child be taken for use at trial pursuant to 42 Pa.C.S.A. § 5984(a). See, N.T. 7/14/86, 45-46. He also frames his third issue in this fashion. However, the difference in the medium through which the child’s testimony is ultimately communicated is insignificant, especially since the medium utilized in Ludwig and the method requested by appellant here, but denied, are now legislatively permitted. Therefore, we hold Ludwig to be controlling here. Moreover, we note that Ludwig does make citation to cases approving the use of videotaped testimony of the child victim. See 366 Pa.Superior Ct. at 367, 531 A.2d at 462.

      Since the trial of this [the Ludwig] case, the legislature has provided by statute for receiving the testimony of child abuse victims by closed circuit television for good cause shown. See: 42 Pa.C.S. § 5985(a).

      . Coyle, Application of Confrontation Clause A Difficult Issue in Child Abuse Cases, The Nat’l L.J., November 2, 1987 at 1, col. 2.

      . The other twenty jurisdictions presently allowing the use of closed-circuit television to enable the child-victim to testify during trial are: Alabama, Arizona, Connecticut, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, New Jersey, Oklahoma, Rhode Island, Texas, Utah and Vermont. Id. at 11, col. 1. The source for this information is the American Bar Association’s National Legal Resource Center for Child Advocacy and Protection.

      . The remaining thirty-two jurisdictions which permit the videotaping of a child’s deposition prior to trial for use at trial are: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Indiana, Iowa, Kansas, Kentucky, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Wisconsin and Wyoming. Id., at 11, col. 2. Source: See n. 3, supra.

      . This statute also permits videotaping of the child’s testimony for use at the preliminary hearing.

      . In light of our disposition, above, we find it unnecessary to address appellant's remaining contentions.


author: MONTEMURO, Judge:

text:
    535 A.2d 1136
    Robert S. ROCKER, Appellant, v. HARVEY COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1987.
    Filed Jan. 6, 1988.

      Ronald L. Chicka, Mount Pleasant, for appellant.
    Charles O. Zebley, Jr., Uniontown, for appellee.
    Before MONTEMURO, POPOVICH and HESTER, JJ.
   MONTEMURO, Judge:

In this wrongful discharge action, appellant Robert S. Rocker appeals from the Order of the Court of Common Pleas of Westmoreland County, granting a judgement n.o.v. in favor of appellee Harvey Company. The pertinent facts leading up to the present appeal are as follows.

Appellant was employed by appellee from May 1974 until December 1981. A collective bargaining agreement between appellee and the Teamsters, Chauffeurs, Warehouse-men and Helpers, Local Union 30 governed appellant’s employment relationship with appellee. Appellee and the union had entered into the collective bargaining agreement on November 24, 1981. On December 30, 1981, at approximately 2:00 p.m., a supervisor employed by appellee requested appellant to make a delivery to Uniontown, Pennsylvania. Appellant orally refused to make the delivery and, upon request, submitted a written document to appellee before going home for the remainder of the afternoon. The document stated: “I, Bob Rocker, refuse to deliver to Uniontown and I quit of [sic] of today.” Shortly after he arrived home, appellant telephoned appellee and was informed that he should not report to work the following day because he had been suspended. Appellant was told to report back to work on Monday, January 2. When appellant reported back to work his superior informed him that his employment with appellee had been terminated.

Following his discharge, appellee discussed with a union representative the possibility of filing a grievance. Al; though appellant was familiar with the grievance procedure contained in the collective bargaining agreement, he neither filed a grievance nor took any further action to appeal his discharge in accordance with the procedures outlined in the collective bargaining agreement. Appellant applied for unemployment compensation but was denied such benefits as a result of having “resigned his job in writing to the employer ... without cause or necessity.” Appellant commenced the instant action in assumpsit on February 17, 1983, claiming that he had been wrongfully discharged by appellee. At the close of appellant’s case-in-chief appellee moved for an involuntary nonsuit because of appellant’s failure to avail himself of the grievance and arbitration machinery outlined in the collective bargaining agreement. The trial court denied the motion, holding that failure to grieve and arbitrate is a matter of defense. At the conclusion of trial appellee moved for a directed verdict based on appellant’s failure to pursue his contractual remedies prior to filing suit. The trial court found that appellee’s failure to raise the issue by way of “new matter” precluded it from raising the issue as a matter of defense. The jury returned a verdict in favor of appellant in the amount of $44,480.48. Appellee filed a timely post-trial motion seeking judgment n.o.v. or a new trial, asserting that: (1) appellant failed to state a claim upon which relief can be granted because he failed to utilize the grievance and arbitration procedures, and (2) the denial of unemployment benefits to appellant because he had voluntarily quit his job collaterally estopped appellant from relitigating that issue. The trial court granted appellee’s motion for judgment n.o.v. based on appellant’s failure to exhaust the dispute resolution remedies provided in the collective bargaining agreement. This timely appeal followed.

Appellant presents a single issue for our review, namely, whether appellee’s failure to raise the grievance and arbitration procedure as an affirmative defense in its “new matter” effectuated a waiver of the issue and precluded the trial court from granting appellee’s motion for judgment n.o.v. based on appellant’s failure to exhaust his contractual remedies? We affirm.

The standard of review of an appellate court when considering an order granting or denying judgment n.o.v. is the same as that used by the trial court: we must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference that can be reasonably drawn from the evidence and rejecting all unfavorable testimony and inferences. Judgment n.o.v. is appropriate only in a clear case where the facts are such that no two reasonable minds could fail to agree that, as a matter of law, the party has failed to make out his case. Gajkowski v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 350 Pa.Super. 285, 305, 504 A.2d 840, 851 (1986); Ingrassia Construction Company, Inc. v. Walsh, 337 Pa.Super. 58, 61, 486 A.2d 478, 480 (1984).

Although the provisions of the collective bargaining agreement are somewhat ambiguous, apparently an employee who questions the propriety of his discharge has a right to a hearing before representatives of both the union and the employer, if he requests such within forty eight (48) hours of discharge. In the event that he is dissatisfied with the outcome of the hearing, the employee may force the employer to submit the dispute to binding arbitration.

Generally, unless a statutory or contractual provision exists to the contrary, an employer may terminate the employment relationship with its employee for any or no reason. Geary v. United States Steel Corporation, 456 Pa. 171, 175, 319 A.2d 174, 176 (1974); Banas v. Matthews International Corporation, 348 Pa.Super. 464, 479, 502 A.2d 637, 644 (en banc) (1985). A collective bargaining agreement is simply a contract, and any rights and remedies that the appellant possesses must be derived solely from the agreement itself. McCluskey v. Department of Transportation, 37 Pa.Commw. 598, 604, 391 A.2d 45, 49 (1978). However, unlike a typical contract, interpretation of the provisions of a collective bargaining agreement is exclusively a matter of federal substantive law even though a state court may have subject matter jurisdiction over the dispute. See Republic Steel Corporation v. Maddox, 379 U.S. 650, 657, 85 S.Ct. 614, 618, 13 L.Ed.2d 580 (1965); See also Teamsters, Chauffeurs, Warehousemen and Helpers v. Lucas Flour Company, 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962); Charles Dowd Box Company v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). The Supreme Court has articulated why federal labor law should be paramount in areas which implicate Section 301 of the LMRA as follows:

Comprehensiveness is inherent in the process by which the law is to be formulated under the mandate of Lincoln Mills, requiring issues raised in suits of a kind covered by § 301 to be decided according to the precepts of federal labor policy.
More important, the subject matter of § 301(a) ‘is peculiarly one that calls for uniform law.’ The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements. Because neither party could be certain of the rights which it had obtained or conceded, the process of negotiating an agreement would be made immeasurably more difficult by trying to formulate contract provisions in such a way as to contain the same meaning under two or more systems of law which might someday be invoked in enforcing the contract. Once the collective bargain was made, the possibility of conflicting substantive interpretations under competing legal systems would tend to stimulate and prolong disputes as to its interpretation. Indeed, the existence of possibly conflicting legal concepts might substantially impede the parties’ willingness to agree to contract terms providing for final arbitral or judicial resolution of disputes.

Lucas Flour Company, supra 369 U.S. at 103-104, 82 S.Ct. at 576-577.

In the present case, appellant’s assertion that he has been wrongfully discharged can only be based on the provisions of the collective bargaining agreement, which modifies the traditional common law rule that an employment contract is terminable at will by either party. The source of appellant’s right not to be discharged, the breach of which would entitle him to damages for wrongful discharge, stems from the collective bargaining agreement between the union and appellee. Consequently, appellant’s claim that he was unlawfully discharged and appellee’s counter-assertion that appellant voluntarily quit his job, as well as the procedure to be followed in the event of such a dispute, necessarily involves construction of the provisions of the collective bargaining agreement to determine which party’s interpretation is correct. Accord, Andrews v. Louisville and Nashville Railroad Company, 406 U.S. 320, 324, 92 S.Ct. 1562, 1565, 32 L.Ed.2d 95 (1972). Because the question presented in this suit implicates the precepts of federal labor policy, we turn now to the federal substantive law which lays out that policy.

The courts which have heard disputes involving subject matter encompassed by the LMRA have established a clear policy for settlement of disputes in accordance with contractually agreed-upon grievance and arbitration procedures. These courts have consistently held that in order to maintain an action based on a labor contract, an employee must first exhaust the grievance procedure and the arbitration provisions contained in the agreement. Failure to exhaust the remedies provided in the collective bargaining agreement may be a valid defense to a suit brought by an employee against his employer for wrongful discharge. See Republic Steel Corporation v. Maddox, supra; Koshatka v. Philadelphia Newspapers, Inc., 762 F.2d 329 (3d Cir.1985); Findley v. Jones Motor Freight, 639 F.2d 953 (3d Cir.1981); Beebe v. Union Railroad Company, 205 Pa.Super. 146, 208 A.2d 16 (1965). See also United Steelworkers of America v. Enterprise Wheel and Car Corporation, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior and Gulf Navigation, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Manufacturing Company, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). We look to the Supreme Court’s decision in Maddox, supra, to guide us in resolving the present controversy. In Maddox, an employee sued his employer in state court for severance pay which was allegedly due under the terms of a collective bargaining agreement between the employer and the employee’s union. The collective bargaining agreement provided a three-step grievance procedure, to be followed by binding arbitration. The Supreme Court held that the employee’s failure to avail himself of the grievance procedure precluded him from maintaining an action in state court. In so holding, the Court explained:

As a general rule in cases to which federal labor law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by the employer and union as a mode of redress. If the union refuses to press or only perfunctorily presses the individual’s claim, differences may arise as to the forms of redress available. But unless the contract provides otherwise, there can be no doubt that the employee must afford the union the opportunity to act on his behalf. Congress has expressly approved the contract grievance procedures as a preferred method for settling disputes and stabilizing the ‘common law’ of the plant. Union interest in prosecuting employee grievances is clear. Such activity complements the union’s status as exclusive bargaining representative by permitting it to participate actively in the continuing administration of the contract. In addition, conscientious handling of grievance claims will enhance the union’s prestige with employees. Employer interests, for their part, are served by limiting the choice of remedies available to aggrieved employees. And it cannot be said, in the normal situation, that contract grievance procedures are inadequate to protect the interests of an aggrieved employee until the employee has attempted to implement the procedures and found them so. A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it. In addition to cutting across the interests already mentioned, it would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation ‘would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.’

Maddox, supra 379 U.S. at 652-653, 85 S.Ct. at 616-617 (citations omitted).

Just as in Maddox, the collective bargaining agreement in the instant case contains a comprehensive dispute resolution procedure. In addition, if the dispute can not be resolved through this procedure, the agreement provides that it will be settled through binding arbitration. While appellant did inquire about the possibility of filing a grievance, the trial court found, and we agree, that appellant did not pursue the matter with representatives of the union. As a result, appellee could assert appellant’s failure to exhaust the remedies outlined in the collective bargaining agreement as a defense to appellant’s action for wrongful discharge.

While appellee possessed a valid defense to this action, the question still remains as to the propriety of the manner in which the defense was raised before the trial court. We note that although we must apply federal substantive law, the procedural rules of the forum, namely, the Pennsylvania Rules of Civil Procedure, govern the procedural aspects of this case. See In re Mackarus’ Estate, 431 Pa. 585, 246 A.2d 661 (1968) (Pennsylvania Rules of Civil Procedure apply to proceedings arising in courts subject to those rules). Appellant claims that appellee was required to assert the defense of failure to exhaust contractual remedies as an affirmative defense. He contends that appellee’s failure to plead this issue as an “arbitration and award” in its new matter pursuant to Pa.R.C.P. 1030 and 1032, precluded it from asserting the defense at trial. We disagree.

Under Pa.R.C.P. 1030, a party must plead the affirmative defense of “arbitration and award” as “new matter.” Failure to raise the defense in an answer as “new matter” effectuates a waiver of the defense. Pa.R.C.P. 1032; See Teodori v. Penn Hills School District Authority, 413 Pa. 127, 196 A.2d 306 (1964). However, the affirmative defense of “arbitration and award”, which must be pleaded in bar of a lawsuit, differs significantly from the defense of failure to exhaust contractual remedies, which may be raised at any time during the course of trial. Appellee’s defense was not that the dispute had been finally resolved through arbitration, but that appellant had an unfulfilled contractual duty to attempt to resolve the dispute through the grievance machinery provided in the collective bargaining agreement as a condition precedent to filing suit. We have held that this type of defense amounts to a failure to state a claim upon which relief can be granted. Beebe, supra 205 Pa.Super. at 153, 208 A.2d at 20. According to Pa.R.C.P. 1032, failure to state a claim upon which relief can be granted is a non-waivable defense and may be raised at any time during the course of trial. Because appellant did not follow the grievance procedure provided in the collective bargaining agreement and appellee properly raised that as a defense at trial, the trial court properly granted appellee’s motion for judgment n.o.v.

Accordingly, we affirm the order of the trial court.

      . The relevant portions of the collective bargaining agreement are as follows:
      Article X — SUSPENSION AND DISCHARGE
      (a) The employer retains the right to suspend or discharge any employee for just cause. The employer agrees that it will notify the union within twenty-four (24) hours after a suspension or discharge of any employee and the reason therefore. Should there be any questions regarding any suspension or discharge, by the employee affected or the union, to the effect that such suspension or discharge was improper and not for just cause, the employer and union agree that said employee will be given a hearing before representatives of the employer and the union within three (3) days regarding said suspension or discharge. In the event that the parties are unable to resolve this matter amicably, the dispute may be submitted to arbitration by either the employer or the union. Employees who fail to appeal from the employer's suspension or discharge within forty-eight (48) hours from the time he receives notice of such discharge or suspension, and send a written copy of such appeal to the union and the employer shall forfeit their right to appeal. Article XI — ADJUSTMENT OF GRIEVANCE
      (a) The union recognizes the responsibilities imposed upon it as the exclusive bargaining agent of the Unit as defined in Article I, and realizes that through its bargaining position it shall recognize these responsibilities; therefore, the union agrees that during the term of this Agreement neither the union nor its agents nor its members will authorize or engage in a work stoppage or slow-down of work or strike. It is further agreed that in all cases of an unauthorized strike, slow-down, walk-out or any unauthorized cessation of work in violation of this Agreement, the union shall not be liable for damages resulting from such unauthorized acts of its members. The employer agrees that during the term of this Agreement there shall be no lockouts. However, in the event the employer refuses to comply with the grievance procedure as outlined in this Agreement, or fails to comply with an arbitration award, the union shall have the right to strike or engage in any other course or activity to enforce its demands.
      (b) A grievance is hereby jointly defined as any controversy, complaint, misunderstanding or dispute between the union or any of the employees represented by the union or any of the employees represented by the union under this Labor Agreement and the Company. Any and all grievances arising between the Company and the union or any employee represented by the Union and covered by this Agreement shall be settled in the following manner:
      (5) Both parties agree to accept the decision of the arbitrator as final and binding.
      The evidence adduced at trial demonstrated that appellant had previously filed several grievances with the union. It is therefore apparent that appellant was familiar with the grievance procedure contained in the collective bargaining agreement.

      . A hearing was held before a referee on February 16, 1982, who affirmed the decision of the Office of Employment Security denying appellant unemployment benefits.

      . Arguably appellant could have used the grievance procedure to obtain the same result. However, regardless of the procedure followed, it is clear that the parties intended the final forum for dispute resolution to be binding arbitration, which was never reached because of appellant’s lack of diligence in pursuing the matter.

      . The Labor Management Relations Act (LMRA) provides concurrent jurisdiction for state and federal courts for disputes involving the provisions of collective bargaining agreements. Appellant’s complaint in assumpsit was based on violation of the collective bargaining agreement between union and appellee, thus implicating subject matter encompassed by the LMRA. Section 301 of the LMRA, 29 U.S.C. § 185(a), provides:
      Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined by this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

      . We also note that while Pa.R.C.P. 1030 provides a list of affirmative defenses which must be pleaded as "new matter”, the last sentence of the rule provides: "A party may set forth as new matter any other material facts which are not merely denials of the preceding pleadings.” (emphasis added). Consequently, it appears that a failure to exhaust contractual remedies would constitute a material fact which either may be pleaded permissively as "new matter” or raised at a later time.


author: HESTER, Judge: BECK, Judge,

text:
    535 A.2d 1141
    COMMONWEALTH of Pennsylvania v. Jeffrey YOUNG, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1987.
    Filed Jan. 6, 1988.
    Petition for Allowance of Appeal Denied June 1,1988.

      Carmela R. Presogna, Assistant Public Defender, Erie, for appellant.
    Paul Susko, Assistant District Attorney, Erie, for Com., appellee.
    Before BECK, JOHNSON and HESTER, JJ.
   HESTER, Judge:

On September 24, 1986, appellant was found guilty of the summary offense of disorderly conduct by a district justice. On appeal to the Court of Common Pleas of Erie County, he was again found guilty of the same offense following a de novo hearing held on December 4, 1986. This appeal followed the January 8, 1987 judgment of sentence of thirty days imprisonment, a fine, and costs. We affirm.

The evidence introduced at trial establishes the following. On August 28, 1986, at approximately 2:45 a.m., appellant and Quincy Barnes were on the campus at Behrend College. They went to Perry Hall, a co-ed dormitory. The women’s section of the dormitory consists of two floors on the right side of the building. The two sides are separated by a lobby. To enter the right side, which is locked, a non-resident must be accompanied by a resident with a key. The first-floor women’s restroom, located in the middle of the hall, serves approximately fifty dormitory residents and has six stalls containing toilets, six shower stalls, and sinks.

An unidentified resident admitted appellant and Barnes into the first floor women’s section, and accompanied them to the room of a dormitory resident the two men knew. They visited briefly with that resident, and on their way out of the dormitory, the two men walked into the women’s restroom. A woman student was sitting on the toilet in one of the stalls. Appellant walked over to the stall, which did not lock, opened the door and said: “Hey baby, what you doing.” N.T., 12/4/86, at 6. The woman screamed, pulled up her pants and chased the men out of the dormitory. She testified that she was extremely frightened by the incident as she was not sure of the men’s intentions when they opened the stall door.

In his defense, appellant testified that while he had gone to Perry Hall and visited with the resident he knew, he did not enter the restroom.

He argues that the evidence was insufficient to support his conviction for disorderly conduct. The test we apply in this situation is as follows:

In testing the sufficiency of the evidence, we must view the evidence in a light most favorable to the Commonwealth as the verdict winner and draw all reasonable inferences upon which the fact finder could have properly based its verdict. Commonwealth v. Easley, 341 Pa.Super. 381, 491 A.2d 868, 869 (1985). A determination must be made as to whether there exists sufficient evidence to enable the trier of fact to find, beyond a reasonable doubt, every element of the crime for which the appellant has been convicted. Commonwealth v. Stehley, 350 Pa. Super. 311, 504 A.2d 854 (1986).

Commonwealth v. Roth, 366 Pa.Super. 575, 579, 531 A.2d 1133, 1135 (1987).

Disorderly conduct is defined in relevant part as follows:

§ 5503. Disorderly conduct
(a) Offense defined. — A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
(c) Definition. — As used in this section the word “public” means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, any neighborhood, or any premises which are open to the public.

We reject appellant’s argument that since his conduct affected only a single individual, he did not have the mens rea to cause “public” inconvenience, annoyance or alarm as defined by the statute. The statute specifically states that “recklessly creating a risk” of public annoyance or alarm is sufficient. The evidence viewed in the light most favorable to the Commonwealth establishes that appellant deliberately entered a women’s public restroom without justification.

Under the statutory definition, the restroom was a public place. The term includes a place to which the public or a “substantial group” has access. 18 Pa.C.S. § 5503(c). The restroom serves the fifty women who reside in the dormitory. Moreover, any female visitor can freely gain access to the area. Thus, the restroom is accessible to a substantial group. The size of the restroom supports this conclusion: it has six toilet stalls and six shower stalls, which is larger than public restrooms in most department stores and restaurants. There are some limitations on access in that a nonresident must be admitted to the general area by a resident. However, this does not alter the fact that a substantial group has access. Apartment houses, defined by the statute as public, are similarly restricted.

When appellant entered the public restroom, he recklessly created a risk of public annoyance or alarm. The fortuitous fact that only one individual was in the area does not vitiate the risk he created. Any number of women, in various states of undress, could have been using the showers, sinks and toilets in the area.

We have held that one who exhibits disorderly behavior in a public place is guilty of disorderly conduct even if that behavior is directed at a single individual. Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54 (1980) (profanities directed at one person on a public street; conviction upheld even though no one else testified that they heard the profanities); accord Commonwealth v. Hughes, 270 Pa.Super. 108, 111, 410 A.2d 1272, 1274 (1979) (emphasis added), where we stated:

The intent requirement of the crime may be met by a showing of either intent to cause or reckless disregard of the risk of “public inconvenience, annoyance or alarm.” Id. A person may be guilty of disorderly conduct within the definition of section 5503 if, in the presence of members of the general public he shouts obscenities “although the principal intent of the defendant may have been to insult the police rather than to cause public inconvenience, annoyance or alarm.” Commonwealth v. Hicks, Pa., 3 D. & C.3d 441 (1975).

Compare Commonwealth v. Weiss, 340 Pa.Super. 427, 490 A.2d 853 (1985), where the defendant performed the conduct in her own home, clearly not a public place, which is the reason her conviction was overturned.

Appellant did not know the victim and was not searching for her. In this context, she was a member of the general public, and appellant deliberately entered the women’s restroom solely to find anyone in her position or in a similarly embarrassing situation. He thereby created a risk of public annoyance or alarm, even if only one individual was alarmed and annoyed.

Further, the evidence establishes that appellant’s conduct created a physically offensive condition to the victim. She was performing a private bodily function. She feared that appellant and his companion were going to assault her. Any reasonable woman in her situation would have been offended by appellant’s actions. Cf. Commonwealth v. Roth, supra.

In Commonwealth v. Greene, 410 Pa. 111, 115-16, 189 A.2d 141, 144 (1963), which is still authoritative on this subject, Justice Musmanno noted that: “In Pennsylvania the crime of disorderly conduct embraces activity which disturbs the peace and dignity of a community.” Justice Musmanno emphasized that the touchstone of disorderly conduct is an activity that does not form “an integral part of the movement of a civilized community.” Id., 410 Pa. at 118, 189 A.2d at 145. Appellant’s behavior fits those descriptions.

Viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, we believe that District Justice Peter Nakoski and Judge Shad Connelly of the Court of Common Pleas of Erie County correctly found appellant guilty of disorderly conduct. We therefore affirm the judgment of sentence.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I do not agree with the majority that the evidence adduced below was sufficient to convict the appellant of disorderly conduct. Even when viewed in the light most favorable to the Commonwealth, the evidence introduced by the Commonwealth fails to establish two of the requisite elements of the crime of disorderly conduct: 1) that appellant intentionally or recklessly caused or created a risk of public inconvenience, annoyance or alarm by his actions; and, 2) that the appellant’s actions created a hazardous or physically offensive condition.

The evidence adduced below establishes that the complainant, a female student, was sitting in a stall in the women’s bathroom on the first floor of a college dormitory. The bathroom was located in the women’s side of the dormitory building and was within the residential portion of the dormitory. A visitor could enter the residential area with a key or be escorted by a female resident of the dormitory. Neither the bathroom door nor the stall door was locked. As the complainant was sitting within the stall, appellant and his companion pushed open the stall door and asked the complainant what she was doing. When the complainant jumped up and yelled, appellant and his companion ran out of the building. The evidence further established that the appellant and his co-defendant were admitted by a female resident into the restricted area of the dormitory and had visited another resident right before this incident.

The Disorderly Conduct statute under which appellant was convicted provides as follows:

A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

18 Pa.Cons.Stat.Ann. § 5503 (Purdon 1981). Thus, the statute by its terms imposes a mens rea requirement: the Commonwealth must prove that a defendant intentionally or recklessly caused or created a risk of public inconvenience, annoyance or alarm by his actions. Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54 (1980), appeal dismissed 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980); Commonwealth v. Weiss, 340 Pa.Super. 427, 490 A.2d 853 (1985); Commonwealth v. Navarro, 251 Pa.Super. 125, 130, 380 A.2d 409, 412 (1977). The Commonwealth here has altogether failed to prove that appellant had the requisite intent to cause public harm. The evidence shows only that appellant’s actions and words were directed at a lone individual sitting in a private stall in an otherwise empty restroom located in a residential, restricted-access area of a dormitory. A reasonable man, looking at the restroom and adjoining areas, could not say that in such a situation appellant acted with a “conscious disregard of a substantial and unjustifiable risk that public annoyance or alarm would result from [his] conduct.” Commonwealth v. Weiss, 340 Pa.Super. at 434-35, 490 A.2d at 857. Nothing more than an intent to cause private discomfort or embarrassment was shown.

The evidence presented by the Commonwealth is deficient in another respect: it fails to show that the appellant’s actions created a hazardous or physically offensive condition. I do not agree with the majority that the complainant’s embarrassment while performing a private bodily function and her fear of further assault amounted to a physically offensive condition. The statute specifically provides an objective standard requiring the creation of a hazardous or physically offensive condition. The majority’s focus on the subjective feelings of one individual is misplaced. Appellant’s conduct was morally offensive and embarrassing to the victim, but that conduct was in no way hazardous or physically offensive. The actions did not affect the women’s physical being, but rather her sense of decency. I do not here make light of the woman’s fright and distress nor condone appellant’s reprehensible behavior. However, although appellant committed a wrongdoing, he did not commit the crime of disorderly conduct. “The crime of disorderly conduct is not intended as a catchall for every act which annoys or disturbs people ... it is intended to preserve the public peace; it thus has a limited periphery beyond which the prosecuting authorities have no right to transgress — ” Commonwealth v. Greene, 410 Pa. 111, 189 A.2d 141 (1963). That periphery has been transgressed here.

I would therefore vacate appellant’s judgement of sentence and discharge the appellant.

      . This is a fair inference from the evidence, considering that appellant did not testify that he went into the restroom mistakenly or due to his own, uncontrollable physical needs and also considering that he deliberately went to the only occupied stall in the restroom and opened it.

      . See Commonwealth v. Koch, 288 Pa.Super. 290, 299-300 n. 9, 431 A.2d 1052, 1057 n. 9 (1981).

      . In so requiring mens rea, the statute supplanted earlier law which focused not on the defendant’s intent, but on the effects of the defendant’s conduct on others. Under the old law, a speaker who had no intent to disrupt the public could have been held criminally liable for the provocation of unruly behavior on the part of his listeners. Commonwealth v. Mastrangelo, 489 Pa. at 263, 414 A.2d at 59, quoting Comment, Public Disorder Offenses Under Pennsylvania’s New Crimes Code, 78 Dick.L.R. 15, 30 (1973). Thus, the actions of the victim in yelling at the appellant cannot convert this private offense into a public one since our focus is now on the appellant’s intent. Moreover, the fact that others could hear the disturbance is not dispositive under the present statute. See Commonwealth v. Weiss, (loud, vulgar language not disorderly conduct simply because others stop and listen).

      . The word "public” is defined by the statute as "affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses ... or any premises which are open to the public.” 18 Pa.Cons.Stat.Ann. § 5503(c) (Purdon 1981). The fact that the dormitory and bathroom were on a school campus does not make those areas "public” under the statute, as access to the areas in question was restricted. Further, even public premises can contain areas which are private in character. See e.g., City of St. Joseph v. Christgen, 513 S.W.2d 458 (Mo.1974) (restroom in a hotel not a public place where hotel reserved for a party). Even if the dormitory bathroom were to be regarded as a public place, appellant’s intent must still be proven. Commonwealth v. Navarro.