text:
    462 A.2d 859
    COMMONWEALTH of Pennsylvania v. Joseph Donald MARTIN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 22, 1983.
    Filed July 8, 1983.

      Bruce Alan Herald, West Chester, for appellant.
    Phyllis R. Streitel, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   PER CURIAM:

On January 21, 1982, appellant pleaded guilty to attempted rape and criminal conspiracy arising out of an incident that occurred on September 26, 1981. Appellant also pleaded guilty to rape and conspiracy from a separate incident that occurred on November 28, 1981, while appellant was free on bail from his earlier offense. Appellant was sentenced to a five-to-ten year term of incarceration. On this direct appeal, appellant contends that the sentence imposed was manifestly excessive and that the trial judge abused his discretion by improperly considering proposed sentencing guidelines prior to their effective date of operation. We find no merit in appellant’s contentions and, accordingly, affirm the judgment of sentence on criminal information 2271 for rape and conspiracy and on criminal information 2345 for attempted rape.

Appellant was originally sentenced on January 21, 1982 on the rape charge to pay a fine of $10.00 and the costs of prosecution and to undergo a term of imprisonment of not less than five nor more than ten years. On the accompanying conspiracy charge, appellant was sentenced to not less than three nor more than ten years to be served concurrently with the sentence imposed for rape. As to the September 26 incident, appellant was sentenced to pay a fine of $10.00 and the costs of prosecution and to be imprisoned for not less than three nor more than ten years on the criminal attempt charge, to be served consecutively to the sentence imposed for rape and conspiracy. On the accompanying conspiracy charge, appellant was sentenced to a term of imprisonment of not less than two nor more than ten years to be served concurrently with the sentence imposed for criminal attempt. Appellant filed a timely motion to modify sentence and, on February 5, 1982, the trial court vacated and amended the prior sentence. Appellant’s sentence was reduced to four to ten years for rape with a concurrent sentence of two to five years for conspiracy, followed by a consecutive sentence of two to five years for attempted rape. The court did not resentence on the conspiracy charge which accompanied the attempted rape charge. On March 4, 1982, the trial court again vacated and amended appellant’s sentence, changing the earlier sentence for rape and conspiracy to concurrent terms of three to six years and reducing the sentence for criminal attempt to two to four years, to be served consecutively to the three to six year sentence. The court also resentenced appellant to two to four years for conspiracy arising out of the attempted rape incident.

On March 5, 1982, appellant filed a notice of appeal to this Court from the judgment of sentence. The Commonwealth argues that this appeal should be dismissed because appellant appealed from the judgment of sentence imposed February 5, 1982 which had been vacated by the order of March 4, 1982 pursuant to the trial court’s second resentencing of appellant. Appellant’s brief sets forth the order appealed as that entitled “Vacation of Sentence and Amended Sentencing”, dated March 4, 1982. The arguments contained in appellant’s brief refer to the five to ten year term of imprisonment imposed on March 4, 1982. It is implicit in Pennsylvania Rule of Appellate Procedure 904, which governs the content of the notice of appeal, that the correct date of the order appealed should be included in the notice of appeal. Therefore, the first issue is whether this appeal should be dismissed because the notice of appeal indicates that the appeal is taken from a vacated order even though appellant’s brief indicates that appellant is appealing a later, valid order.

Pa.R.A.P. 105 provides that the appellate rules shall be liberally construed to secure the just, speedy and inexpensive determination of every matter to which they are applicable. Rule 105 further provides that an appellate court may, on its own motion, disregard the requirements of any of the rules in a particular case. It is obvious from appellant’s brief that he is appealing the sentence of five to ten years issued by the trial court on March 4. In General Mills v. Snavely, 203 Pa.Super. 162, 199 A.2d 540 (1964), we invoked Rule 126 of the Pennsylvania Rules of Civil Procedure, the liberal construction corollary to Pa.R.A.P. 105. We stated: “The procedural rules are not ends in themselves, but means whereby justice, as expressed in legal principles, is administered; they are not to be exalted to the status of substantive objectives.” (Citation omitted). Id., 203 Pa.Superior at 167, 199 A.2d at 543. See also Ney v. Ney, 277 Pa.Super. 570, 419 A.2d 1296 (1980) (where we held that a misnomer in a pleading did not deprive the lower court of jurisdiction.). We will address the merits of this case despite the obvious inadequacy in the notice of appeal.

As was stated previously, on criminal information 2271, appellant received concurrent sentences of three to six years for rape and conspiracy arising out of the November 28, 1981 incident. Consecutive to this sentence, on criminal information 2345, appellant received concurrent sentences of two to four years for attempted rape and conspiracy arising out of the September 26, 1981 incident. Section 906 of the Crimes Code, 18 Pa.C.S.A. § 906, provides: “[A] person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or culminate in the commission of the same crime.” Here, on January 21, 1982, the trial court improperly sentenced appellant for two inchoate crimes, criminal attempt and criminal conspiracy, arising out of the September 26 incident. The lower court corrected this error on February 5, 1982, but reinstated it on March 4, 1982. This issue has not been raised by appellant. However, because it involves the legality of the sentence imposed, we may raise the issue sua sponte. Commonwealth v. Welch, 291 Pa.Super. 1, 435 A.2d 189 (1981). Since the term of imprisonment for criminal conspiracy was to be served concurrently and for the same period of time as the attempted rape sentence, and because the court had previously corrected its mistake by vacating the conspiracy sentence, it is clear that a remand for resentencing would not result in any change of sentence. See Commonwealth v. Moore, 261 Pa.Super. 92, 395 A.2d 1328 (1978). Therefore, we vacate the judgment of sentence for criminal conspiracy arising out of the attempted rape of September 26.

Appellant’s sentence totals five to ten years of incarceration. Appellant could have received a maximum term of imprisonment of twenty years for rape, ten years for conspiracy to commit rape, and ten years for attempted rape. Since the sentence is clearly within statutory limits, appellant must convince us that the sentences were manifestly excessive so as to constitute an abuse of discretion by the sentencing court. Commonwealth v. Gaus, 300 Pa.Super. 372, 446 A.2d 661 (1982). Appellant argues that the sentence of five to ten years of imprisonment was manifestly excessive because he has a personality disorder with anti-social tendencies that would best be treated in a controlled, residential institution where he could receive intensive psychotherapy. In support of his argument, appellant points to the fact that “[njeither of his victims sustained any permanent physical damage and, aside from pulling the rape victim into the car and knocking the attempted victim to the ground, the only physically assultive [sic] behavior associated with the rape was punching and spitting upon the attempted rape victim whom appellant had probed with his fingers.” (Brief for Appellant at p. 9.) Appellant also argues that the sentencing judge incorrectly used proposed sentencing guidelines.

We have reviewed thoroughly the record in this case and find that appellant’s arguments are totally lacking in merit. The sentencing court ordered that the sentence as imposed would indicate to the State Bureau of Corrections that psychiatric therapy would be provided. The court below also stated on the record that, although it would consider the proposed sentencing guidelines, it did not agree to be bound by them and may, indeed, depart from them.

For the above-stated reasons, we vacate judgment of sentence for the criminal conspiracy charge arising out of the attempted rape incident. Judgment of sentence is affirmed as to the remaining convictions.

      . 18 Pa.C.S.A. § 901 (Criminal Attempt).

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 3121.

      . 18 Pa.C.S.A. § 903.


source: Caselaw Access Project

author: ROWLEY, Judge: POPOVICH, Judge,

license: Public Domain

text:
    462 A.2d 861
    KERRY COAL COMPANY, v. BECKWITH MACHINERY COMPANY v. CATERPILLAR TRACTOR CO. and Robert Grieff v. E.F. JOHNSON CO. and Leonard J. Schmader. Appeal of Robert GRIEFF.
    Superior Court of Pennsylvania.
    Argued April 26, 1983.
    Filed July 15, 1983.
    Petition for Allowance of Appeal Denied Feb. 10, 1984.

      Melinda E. Martin, Pittsburgh, for appellant.
    Robert W. Murdoch, Pittsburgh, for appellees.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   ROWLEY, Judge:

This is an appeal by Robert Grieff (Grieff) from an order sustaining preliminary objections filed by E.F. Johnson Company (Johnson) and dismissing Johnson as an additional defendant. Johnson challenged its joinder on the ground that Grieff had not complied with Pa.R.C.P. 2253. For the reasons discussed below, we are in agreement with both the trial court and appellee, and accordingly affirm.

The facts of this case involve the sale and purchase of a Caterpillar Tractor and the damage done to the same as a result of a fire of unknown origin. The fire originated in the cab of the tractor while it was being operated on March 25, 1976, by an employee of the plaintiff, Kerry Coal Company (Kerry Coal). Kerry Coal instituted suit in September of 1977 to recover the damages it had sustained, alleging strict liability on the part of Beckwith Machinery Company (Beckwith) for selling and supplying the tractor in a defective and dangerous condition. Beckwith, in turn, joined Caterpillar Tractor Company, the manufacturer of the tractor, and Grieff as additional defendants. Beckwith joined Grieff claiming that a two-way radio which Grieff had sold to Kerry Coal, and which had been installed in the cab of the tractor prior to March 25, 1976, was in a defective condition and unreasonably dangerous at the time of installation. In response to Beckwith’s joinder, Grieff filed preliminary objections claiming lack of venue, and including therein a motion for a more specific pleading. Grieff’s preliminary objections were dismissed on January 31, 1979, and Grieff was directed to “plead over within thirty (30) days from the date” of the order. On February 20, 1979, Grieff, without leave of court, joined as additional defendants, Johnson, the manufacturer of the radio, and Leonard J. Schmader, the individual who had installed the radio in the tractor cab. Johnson filed preliminary objections in the nature of a motion to strike on the ground that Grieff’s joinder of Johnson as an additional defendant was not accomplished in conformity with the rules of civil procedure and was not timely filed under Pa.R.C.P. 2253. The trial court sustained Johnson’s preliminary objections, and this appeal followed.

Pa.R.C.P. 2253 provides as follows:

Neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown. (Emphasis supplied)

On appeal Grieff contends that his joinder of Johnson was timely filed, and that he was not in violation of Pa.R.C.P. 2253. In support thereof, Grieff first argues that the trial court’s order of January 31, 1979, gave him the right to “plead over” which included the right to join additional defendants without leave of court. Grieff’s second argument is that the rule announced in Graham v. Greater Latrobe School District, 436 Pa. 440, 260 A.2d 731 (1970) is applicable and that, consequently, he had sixty days from the date his preliminary objections were overruled to join additional defendants without leave of court. Neither argument is persuasive.

The fact that the trial court granted Grieff the right to “plead over” cannot be construed as authorizing the joinder of additional defendants for “cause shown.” Grieff’s first argument, therefore, is without merit. As for Grieff’s second argument, the exception to Pa.R.C.P. 2253 carved out in Graham, supra, is not applicable to the facts of this case. Graham is only applicable when the preliminary objections are filed by the original defendant and, if successful, would result in the filing of an amended complaint by the plaintiff or in the action being dismissed. Compare Commercial Banking Corp. v. Culp, 297 Pa.Super. 344, 443 A.2d 1154 (1982) (original defendant’s filing of preliminary objections delayed running of sixty-day period for joinder of additional defendants until preliminary objections were ruled upon where such objections, if successful, would have terminated litigation as to a necessary party); Pennsylvania Gas & Water Company v. Lisbon Contractors, 288 Pa.Super. 267, 431 A.2d 1041 (1981) (original defendant’s filing of demurrer did not delay running of sixty-day period for joinder of additional defendants until preliminary objections were ruled upon where the demurrer, which challenged only one of two counts of the complaint, would not have terminated litigation even if successful). Grieff is not an original defendant. The exception found in Graham has never been extended to preliminary objections filed by additional defendants. We see no reason to extend it now. Grieff’s preliminary objections, even if successful, would not have resulted in the dismissal of the action or the filing of an amended complaint by the plaintiff. Because Graham sets forth an exception to the plain language of Pa.R.C.P. 2253, it should be strictly limited to the circumstances found therein. The procedural background required to implement the Graham exception is not present in this case.

Order affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I dissent from the majority’s restrictive interpretation of our rules of civil procedure which deprives an additional defendant of the opportunity to join other defendants.

According to the majority, Robert Grieff, the second additional defendant, erred when he attempted to join as additional defendants, E.F. Johnson Company, the manufacturer of the radio. The majority bases its decision on Pa.R.C.P. 2253. In this writer’s view, the majority overlooks a basic principle. That is, the rules of civil procedure “shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.”

To begin with, Pa.R.C.P. 2253 must be read in conjunction with Rule 2252 which provides in pertinent part:

“(a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any other person whether or not a party to the action who may be alone liable or liable over him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.” (emphasis added).

Thus, Rule 2252(a) “gives a defendant the right to join additional defendant^].” Del Boring Tire Service v. Barr Machine, Inc., 285 Pa.Super. 66, 73, 426 A.2d 1143, 1147 (1981), petition for allowance of appeal denied June 2, 1981. The time period which governs this right is set forth in Pa.R.C.P. 2253 which provides:

“Neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.”

In the instant case, the complaint of Kerry Coal Company was filed on October 5, 1977. However, service was not effectuated until October 31, 1977. On February 17, 1978, Beckwith Machinery Company filed a praecipe for a writ, and a writ was issued on February 16th by the Prothonotary of the Court of Common Pleas of Allegheny County. Then on June 2, 1978, Beckwith filed a “PETITION FOR LEAVE TO JOIN ADDITIONAL DEFENDANT OUT OF TIME”, which was granted on June 2, 1978. At this time, appellant became an additional defendant to the lawsuit. Praecipes to issue and reissue writs of summons were also issued to appellant. At this stage in the proceedings, Beckwith obtained new counsel who then filed a complaint to join Robert Grieff as an additional defendant on November 17, 1978. Appellant then filed preliminary objections, on December 6, 1978. The court denied appellant’s preliminary objections in an order which read:

“AND NOW, TO WIT, this 31st day of January, 1979, it is hereby ORDERED, ADJUDGED AND DECREED that the preliminary objections of Robert Grieff to the Complaint of Original Defendant Beckwith Machinery Company Against Additional Defendant Robert Grieff are overruled. Additional Defendant Robert Grieff shall plead over within thirty (30) days from the date hereof.”

On February 20, 1979, appellant filed the complaint which forms the basis of the instant appeal, joining appellee, E.F. Johnson Company, and Leonard J. Schmader. Appellee filed preliminary objections in the nature of a motion to strike because “more than 60 days have elapsed since the initial service of the Complaint and more than 60 days elapsed since the service of the Complaint on Robert Grieff and that Robert Grieff to date has failed to get authorization from the court to serve this additional defendant out of time as provided by the Rules of Civil Procedure of the Commonwealth of Pennsylvania. “PRELIMINARY OBJECTIONS IN THE FORM OF A MOTION TO STRIKE” Allegation # 6. The trial court sustained appellee’s preliminary objections on March 24, 1980, and this appeal followed.

Although more than sixty days had elapsed either from the date service of the original complaint was made upon the original defendant or from the date that appellant was served with a copy of the complaint to join him as an additional defendant, in this writer’s view, the language of Rule 2253 is not to be read literally because our Supreme Court has said that “Rule 2253 does not explicitly cover the situation of the joinder of additional defendants when the original defendant has filed preliminary objections to the complaint.” Graham v. Greater Latrobe School District, 436 Pa. 440, 443, 260 A.2d 731, 733 (1970). The reason for refusing to apply the 60-day time limit strictly is because “[i]f the objections are sustained, no problem will arise, however, for either the action will be dismissed or an amended complaint will be filed after which a sixty day period begins. When the objections are overruled, as here, reason and policy require that the defendant be given sixty days to join additional defendants.” Id., 436 Pa. at 443, 260 A.2d at 733.

Simply stated,
‘[I]t makes no sense to require the defendant to proceed as if the action will continue [by joining additional defendants] when he has before the court objections which, if successful, will terminate the litigation____’ ” Del Boring Tire Service v. Barr Machine, Inc., 285 Pa.Super. at 73, 426 A.2d at 1147. (quoting Graham v. Greater Latrobe School District, supra).

To allow the original defendant 60 days to join additional defendants from the date preliminary objections are overruled, on the one hand, and to deny that same opportunity to those additional defendants, who quite fortuitously, were joined subsequently in the lawsuit scenario, on the other hand, is to exalt form over substance.

The majority’s explanation for stripping appellant of an opportunity to join additional defendants is because:

“Grieff is not an original defendant. The exception found in Graham has never been extended to preliminary objections filed by additional defendants. We see no reason to extend it now. Grieff’s preliminary objections, even if successful, would not have resulted in the dismissal of the action or the filing of an amended complaint by the plaintiff. Because Graham sets forth an exception to the plain language of Pa.R.C.P. 2253, it should be strictly limited to the circumstances found therein. The procedural background required to implement the Graham exception is not present in this case.” At 199. (Emphasis added).

The clear implication from the majority is that had Grieff been the first and original defendant, he could have joined other defendants. However, because he is not, he loses. Concomitantly, because the plaintiff’s complaint would not have been dismissed or amended even if Grieff’s preliminary objections were successful, Graham is inapplicable.

This writer considers the Graham principle applicable irrespective of whether the complaint at issue is being filed by the original “plaintiff” or a third party, fourth party, or fifth party “plaintiff”. In fact, we have said that the purpose of a court’s ruling on preliminary objections is “to test at an early stage a pleading’s validity.” Del Boring Tire Service v. Barr Machine, Inc., 285 Pa.Super. at 73, 426 A.2d at 1147 (emphasis added). The dispositive question should be whether a ruling on the party’s preliminary objections, if successful, would terminate that complaint period.

The application of the Graham principle which this author adopts is consistent with a liberal construction of our rules of civil procedure, as interpreted by our Supreme Court. Until Graham is overruled, we should recognize that “[t]he thrust of the Graham decision, however, was to carve out an exception ..., a ‘fourth’ time period”, to Rule 2253. Pa. Gas and Water Company v. Lisbon Contractors, Inc., 288 Pa.Super. 267, 269, 431 A.2d 1041, 1042 (1981). Hence, I must dissent from the majority’s decision that Graham “should be strictly limited to the circumstances found therein.” At 199.


author: CERCONE, President Judge:

text:
    462 A.2d 1310
    COMMONWEALTH of Pennsylvania v. Maria RODRIQUEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 16, 1983.
    Filed June 24, 1983.

      F. Michael Medway, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and JOHNSON, and MONTEMURO, JJ.
   CERCONE, President Judge:

Appellant, Maria Rodriquez, takes this appeal from her convictions for robbery, murder in the second degree (felony murder), and possessing an instrument of crime. In this appeal, appellant raises two issues: (1) Whether the Court erred when it refused appellant’s motion to suppress her pre-trial statement, and (2) Whether the evidence was sufficient to support her conviction.

On June 2, 1980, at approximately 12:30 a.m., appellant was sitting with several other women on the steps of a house at 5th and Willard Streets in Philadelphia. This house was adjacent to the Home Plate Inn, a bar. At the time mentioned above, appellant was approached by two men from the neighborhood, known as Santana and Little Hawk, who pointed through the window of the bar to one Carlos Rivera, a patron in the bar, and told appellant that Rivera had a lot of money on him. Appellant understood this to méan that the two men wanted her to coax Rivera outside so that the men could rob him. Appellant, however, replied that she knew Rivera and didn’t want to bother him. Hearing this, the two men went away and did not return. However, when Rivera left the bar about a half of an hour later, appellant followed him on her bicycle and caught up with him at the corner of 5th and Allegheny. There, appellant and Rivera engaged in conversation for a while. As for what happened next, we quote from the pretrial statement which appellant gave:

APPELLANT: We talked for a couple minutes and I figured he wanted to take'me somewhere, so I thought now I could get some money off him. I reached with my left hand to go in his pants pocket (Det. Aiken then asked Maria to demonstrate what happened and she rose from chair, placed her left hand in the top part of Det. Aiken’s right front pants pocket, then she placed Det. Aiken’s right hand around her left wrist, and said she told Carlos several times to leave her be, he held on real tight, then she placed her right hand in her back pocket and stated that she took the razor blade from her back right pants pocket and told Carlos she was going to cut him, he said Go ahead, so she then took the razor blade, which she had in her right hand, and made a slashing motion on Carlos right arm).
POLICE: How many times did you cut him?
APPELLANT: One time.
QUESTION: Did he then let go of your hand?
ANSWER: Yea, right after I cut him.
QUESTION: What did Carlos do then?
ANSWER: He ran, right up 5th St., near where the houses are, and I was chasing after him to stop the bleeding, I saw it was bad. Thats when he ran into a fence and fell down, I went to pick him up and fell down with him. Then I saw his money stickin out from his pocket, the edge of the money, So I decided to take it. I reached in his pocket and took all the money he had in that pocket.
QUESTION: How much money did you take from Carlos?
ANSWER: A hundred even.
QUESTION: What kind of bills did he have, l’s, 5’s, 10’s, what did you get from him?
ANSWER: A couple of 20’s and some 10’s, it came to a hundred.
QUESTION: What did you do then?
ANSWER: I stood up, and I was bloody, and I hollered call the Police, he’s hurt and people were coming then. Sonia [appellant’s friend] came up and saw the blood on me, she said for me to leave, they’ll see the blood. I said why should I leave and she made me go. So I went to my mother’s.
QUESTION: Describe what you cut Carlos with?
ANSWER: It was a double edged razor blade, silver, it was in a silver thing that you just slid the razor blade out.
QUESTION: Where did you by [sic] the blades?
ANSWER: I had bought them at the Puerto Rican grocery store at 6th & Tusculum St. that same day, to shave my eyebrows.
QUESTION: What did you do with the razor blade after you cut Carlos?
ANSWER: I just dropped it after I cut him, right there, I let it go.
QUESTION: Did you know Carlos Rivera to carry large sums of money with him?
ANSWER: I knew he had 100 to 200 dollars with him always, he had no wife, he never spent much money. He always worked and had money.
QUESTION: On the night you cut Carlos, did you see Carlos with any money?
ANSWER: Yes, in the bar I saw him put money in his pants pocket.
QUESTION: Was that the same pocket (Det. Aiken points to right front pants pocket) that you tried to take Carlos money from at 5th & Allegheny, and then did take his money after he fell on 5th St.
ANSWER: Yea, thats right.
QUESTION: Maria, is there anything else you want to say about this?
ANSWER: I just meant to scratch him to make him let me go, I didn’t want to hurt him bad, and then when I saw all the blood I tried to help him.

In due course, appellant waived her right to a trial by jury. Following her non-jury trial, appellant was convicted on all counts. Appellant’s pre-trial statement was a key factor in the Commonwealth’s case against her.

In her first issue, appellant contends that the police interrogated her and took her statement without first giving her the required warnings of her Constitutional rights. Appellant claims that the warnings were given only after she completed her statement. Appellant timely raised this issue in pre-trial suppression motions and the court held a hearing on this matter. At the suppression hearing, Detective Phillip Checchia and Officer Miguel Deyne, two of the three policemen who conducted the interrogation of appellant, both took the stand. Each testified that appellant was given the Miranda warnings in English and in Spanish prior to the interrogation. They further said that appellant specifically waived her right to have counsel present. The officers’ testimony is consistent with the information contained in the typed copy, signed by appellant, of appellant’s statement. Therein it states: “Warnings given by Det. Aiken and Plcmn. Deyne (in Spanish). Date and Time 6-24-80, 5:55 PM.” Appellant took the stand and contradicted the testimony of the Commonwealth’s witnesses. The suppression court judge chose to credit the testimony of the Commonwealth’s witnesses and to disbelieve appellant’s version. Credibility is a matter within the province of the suppression court and we see no reason to reverse the court’s conclusions in this matter. Commonwealth v. Iannaccio, 304 Pa.Superior Ct. 307, 450 A.2d 694 (1982). Therefore, we find that the court properly refused appellant’s motion to suppress her pre-trial statement.

Appellant next argues that the evidence was insufficient to support her convictions for murder in the second degree (felony-murder), robbery and possession of an instrument of crime. We shall address each of these claims in turn.

Regarding the charge of murder in the second degree, appellant contends that when she first approached Carlos Rivera, she did so with the intent of soliciting prostitution, not with the intent of robbing the victim. The distinction is crucial, because prostitution is not among those crimes specified under the felony murder statute. The statute says, in relevant part:

(b) Murder in the second degree.—A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
“Perpetrator of a felony.” The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.
18 Pa.C.S. § 2502 (Supp.1982)

At trial, appellant took the stand and attempted to explain her pre-trial statement, which statement is quoted in relevant part above. On direct examination, appellant offered this testimony:

QUESTION: Now, in your statement you said to the detective, “I figured he wanted to take me somewhere, so I thought now I could get some money off of him.” What did you mean by the statement to the detectives, “I thought I could get some money off of him?”
ANSWER: Because he said, “Do you want to go out with me,” and the way he said it. He was trying to tell me he was going to give me something.
QUESTION: What was it that he said or what was it about the way he said it that gave you that impression that he was going to give you something?
ANSWER: I don’t remember.
QUESTION: Did he offer you something? Did he—
ANSWER: Yeah, he offered.
QUESTION: Did he say, “We’ll talk about it later,” or “If you do something for me”? Where did you get that impression from?
ANSWER: Because he stuck his hand in his pocket.
QUESTION: He stuck his hand in his pocket?
ANSWER: Right.
QUESTION: Which hand did he stick in which pocket?
ANSWER: He went like this.
QUESTION: Making a motion down the right thigh did he—
ANSWER: He put it half way.
QUESTION: Did he leave it there?
ANSWER: No. Then he took it back out.
QUESTION: Was there anything in it when he took it back out?
ANSWER: No.
QUESTION: Now, you then said to the detective, “I reached with my left hand to go in his pants pocket.” Why did you do that? Did you go—did you intend to go into his pants pocket?
ANSWER: No, I just reached towards his pocket.
QUESTION: You told Detective Aiken, “I reached with my left hand to go in his pants pocket.” Is that what you said?
ANSWER: Yes.
QUESTION: You said that to the detective. My question to you is: Why did you say that to the detective? Was that because it was true, that you intended to do that, to reach towards his pocket?
ANSWER: I reached towards his pocket, but I didn’t attempt to go in.
QUESTION: Why did you reach towards his pocket, for what reason?
ANSWER: I don’t know.
QUESTION: Did you do it because you wanted to try to take money out of his pocket?
ANSWER: No.
QUESTION: By the way, when you reached towards his pants pocket, how far did your hand get?
ANSWER: Just to his—like where his buckle is at.
QUESTION: You mean on the side?
ANSWER: Yeah.
QUESTION: Was he wearing a belt on those pants?
ANSWER: I don’t know.
QUESTION: Did you hand ever touch his pocket?
ANSWER: No, I didn’t get to touch him.
QUESTION: Did your hand ever go into his pocket at that point?
ANSWER: No, it didn’t.
QUESTION: What happened at that time when you reached towards his pocket?
ANSWER: He grabbed me by my wrist.
QUESTION: What did you do when he grabbed you by your wrist?
ANSWER: I asked him kindly, “Would you please let me go, and I’ll get on my bike. You can go home where you are going. I’ll go to my mother’s.” He wouldn’t let me go.
QUESTION: Why did you say that?
ANSWER: So he would let me go.
QUESTION: I thought you agreed to go out with him?
ANSWER: I know. After he grabbed me by my wrist, I changed my mind.
QUESTION: How many times did you ask Carlos to let you go?
ANSWER: Three times.

It is well-established that the finder of fact is free to believe all, part or none of the evidence. Commonwealth v. Arms, 489 Pa. 35, 413 A.2d 684 (1980); Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979); Commonwealth v. Allen, 287 Pa.Superior Ct. 88, 429 A.2d 1113 (1981); Commonwealth v. Weaver, 274 Pa.Superior Ct. 593, 418 A.2d 565 (1980). More specifically, the fact finder in a murder prosecution is free to disbelieve a defendant’s assertion that he or she acted without malice. Commonwealth v. Clark, 270 Pa.Superior Ct. 441, 411 A.2d 800, cert. denied Clark v. Pennsylvania, 446 U.S. 944, 100 S.Ct. 2170, 64 L.Ed.2d 799 (1979); Commonwealth v. Kull, 267 Pa.Superior Ct. 55, 405 A.2d 1300 (1979). Additionally, in assessing the defendant’s credibility, the factfinder could consider that the defendant had a vital interest in the outcome of the trial. Commonwealth v. Pettiford, 265 Pa.Superior Ct. 466, 402 A.2d 532 (1979). In the instant case, the court was not bound to believe appellant’s testimony at trial and there was sufficient evidence in appellant’s pre-trial statement to support her conviction for felony murder. Therefore, we affirm that conviction.

By the same token, we also affirm appellant’s conviction for robbery. At trial, appellant contended that she took the victim’s money impulsively after the victim collapsed from his wound. Appellant quotes from the robbery statute which says:

(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury; or
(iii) commits or threatens immediately to commit any felony of the first or second degree.
(2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.
(b) Grading.—Robbery is a felony of the first degree. 18 Pa.C.S. § 3701.

Appellant thus argues that she is not guilty of robbery because the injury to the victim did not occur “in the course of committing a theft.” We reject this contention for the same reasons that we rejected appellant’s felony murder argument. The trial court was free to disregard appellant’s trial testimony and to credit appellant’s pre-trial statement. We therefore affirm appellant’s robbery conviction.

Lastly, appellant contends that the evidence was insufficient to support her conviction for possession of an instrument of crime. On this point, we agree with appellant.

The statutory law regarding possession of the instruments of a crime provides:

(a) Criminal instruments generally.—A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.
(b) Possession of weapon.—A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally.
(c) Definitions.—As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Instrument of crime.”
(1) Anything specially made or specially adapted for criminal use; or
(2) anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.
“Weapon.” Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have. The term includes a firearm which is not loaded or lacks a clip or other component to render it immediately operable, and components which can readily be assembled into a weapon.
18 Pa.C.S. § 907.

Appellant’s conviction was based upon her possession of the double-edged razor blade used in the killing. We conclude that an ordinary razor blade does not fit within the statutory definition of an instrument of crime. It has been held that the mere use of a particular item in the perpetration of a crime does not prove that the item was specially adapted for a criminal purpose, Commonwealth v. Short, 278 Pa.Superior Ct. 581, 420 A.2d 694 (1980); Commonwealth v. Rios, 246 Pa.Superior Ct. 479, 371 A.2d 937 (1977). Rather, the legislature has established two alternative criteria for determining whether an object is an instrument of crime: the object must either be one which is regularly used by criminals or it must be one which is physically altered in such a fashion as to demonstrate a criminal objective Commonwealth v. Rios, supra. The razor blade used by appellant satisfies neither of these criteria. Accordingly, appellant’s conviction for possession of an instrument of crime is reversed.

Appellant’s convictions for murder in the second degree and for robbery are affirmed. Appellant’s conviction for possession of an instrument of crime is reversed.

       For her conviction for felony murder, appellant received the mandatory sentence of life in prison. 18 Pa.C.S. § 1102(b) (Supp.1983). On the possession of the instrument of a crime charge, appellant received a concurrent sentence of two to five years. Appellant received no sentence on the robbery charge.


author: SPAETH, Judge: CAVANAUGH, Judge,

text:
    462 A.2d 1316
    COMMONWEALTH of Pennsylvania v. Roger BUEHL. Appeal of PHILADELPHIA NEWSPAPERS, INC., Intervenor, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1983.
    Filed June 24, 1983.
    Petition for Allowance of Appeal Denied Dec. 27, 1983.

      Katherine L. Hatton, Philadelphia, for appellant.
    Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and HOFFMAN, JJ.
   SPAETH, Judge:

This appeal is from an order denying appellant’s motion for access to a pretrial hearing and a copy of the transcript of the hearing. The order arises from the Commonwealth’s prosecution of Roger Buehl for murder. The pretrial hearing was set for the day the case was called for trial, January 3, 1983, and at the opening of the hearing, Buehl’s counsel moved that the hearing be closed. The lower court granted the motion at once, and on January 18 Buehl was convicted and sentenced to death. Appellant is the publisher of the Philadelphia Inquirer and the Philadelphia Daily News. We hold that before a trial court may order a pretrial hearing closed, there must be notice to the public; that if a representative of the public, such as the press, opposes closure, the court shall afford the representative an opportunity to be heard; that before ordering closure, the court shall consider alternatives to closure; and that if the court orders closure, it shall state on the record why it rejected those alternatives. Since the lower court did not comply with these requirements, we reverse.

As already mentioned, the pretrial hearing was set for the day the case was called for trial, January 3, 1983. The hearing convened at 10:37 a.m. The transcript states that in addition to the court, those present were the prosecutor, defense counsel, and the defendant, Roger Buehl. The court instructed the clerk to swear the court reporter and the tipstaves, and after they were sworn, indicated that the prosecutor might proceed. Defense counsel then stated that he had “filed certain pre-trial motions” and that “because of the extensive pre-trial publicity that this trial has been given and because of the possible prejudice that may arise on the defendant’s part if those motions are heard in the press, I would ask that the pretrial motions at this point be kept outside the presence of all persons except for those associated with the Court.” N.T. 3. The prosecutor responded: “Your Honor, I have no objection. In fact, I think that such a ruling may assist in jury selection in this case.” Id. The court responded:

Well, it occurs to me certainly that if this is rehashed in any way, the pre-trial motions and some of the evidence that’s produced, in the papers prior to the selection of the jury that this certainly will at least keynote to those people who read the paper carefully the case and may recall some of the past publicity, which I don’t think has been extensive up to this point. In an abundance of caution, therefore, I am going to hold the pre-trial motions in camera in accordance with an opinion rendered by the Supreme Court of Pennsylvania. The trial, of course, will be open to the public, but the pre-trial motions will be held outside the hearing of the press.
All right. I guess we’re ready to proceed at this point.
N.T. 4

The hearing then began.

After what must have been only a few moments, the direct examination of the first witness was interrupted—in its opinion the lower court states that “a member of the press burst past the guard at the back door of the court room,” Slip op. at 2—and the following occurred.

UNIDENTIFIED VOICE: I have been instructed by my editor to request that the proceedings be stopped until we can get a lawyer here to make a motion to request that the press be permitted.
THE COURT: Well, I am not going to stop the proceedings. I have already made a ruling on that with regard to the other members of the press. It should be perfectly obvious to your editor as well as everyone else that I have to balance the public’s right to know versus any prejudice to the picking of any future jury, and there is precedent in the Supreme Court of Pennsylvania which indicates that pre-trial matters can be heard outside the press and not in public view, and it’s on that precedent that I am making this ruling.
UNIDENTIFIED VOICE: Just for the record, our attorney will be in touch with the Court.
N.T. 7

The member of the press was “then escorted from the courtroom and the hearing continued.” Slip op. at 2.

During a recess in the hearing later the same day, appellant moved to intervene in the proceedings for the purpose of gaining access to the pretrial hearing and a transcript of the portion of the hearing from which appellant had been excluded. The lower court states in its opinion that it granted the motion to intervene but denied the motion seeking access to the hearing and the transcript. Slip op. at 2. Evidently no record was made of these proceedings. Appellant states in its brief that the court explained its ruling by stating that if the hearing were not closed, it would be impossible to impanel an impartial jury. Brief for Appellant at 3. This is consistent with the statement by the lower court in its opinion that “[h]ad the information considered at the suppression hearing become public before a jury was picked, it would have been nearly impossible to pick a fair and impartial jury in this County or any other County.” Slip op. at 5.

-1-

Since the defendant has been convicted and sentenced, any concern that his right to a fair trial would be jeopardized were appellant or other representatives of the press permitted to attend and report on the pretrial hearing no longer exists; also, we are advised that the transcript has now been released. Supplemental Brief for Appellant at 2. We must therefore consider whether this appeal is moot.

When a case is “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), a court may hear it even though the issue it raises otherwise appears moot. Id. See also In re Commitment of Ann S., 279 Pa.Super. 618, 621 n. 2, 421 A.2d 370, 372 n. 2 (1980); Janet D. v. Carros, 240 Pa.Super. 291, 310, 362 A.2d 1060, 1069 (1976). Class actions aside, a case is “capable of repetition, yet evading review” when “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348-49, 46 L.Ed.2d 350 (1975) (per curiam). See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973 (1980); United States v. Criden, 675 F.2d 550, 553-54 (3d Cir.1982).

Here, the pretrial hearing convened at 10:37 a.m. on January 3 and concluded at 4:17 p.m. the same day. N.T. 3, 137. The appeal from the lower court’s order closing the hearing was orally argued before this court on January 18. By then the defendant had been convicted and sentenced. Thus “the challenged action”—the closure order—was “too short to be fully litigated prior to its cessation.” In addition, unless we decide what procedure the lower court should have followed, there is a reasonable expectation that appellant as the publisher of two newspapers will be subjected to similar closure orders again. It is therefore apparent that this appeal is not moot.

-2-

In Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), the United States Supreme Court held that the public has no right under the sixth amendment to attend pretrial proceedings in a criminal case. That case is not controlling here, for appellant invokes not the sixth but the first amendment. Brief for Appellant at 5. In Richmond Newspapers, Inc. v. Virginia, supra, the Court held that the public has the right under the first amendment to attend the trial in a criminal case; the Court did not consider the public’s right to attend a pretrial proceeding. Therefore, that case is not controlling either. However, in United States v. Criden, supra, the Court of Appeals for the Third Circuit held that

the same societal interests and structural arguments that mandated a first amendment right of access to criminal trials in Richmond Newspapers apply with equal force to pretrial criminal proceedings.
675 F.2d at 557.

We agree with, and adopt, this holding.

It is of course true that the Constitution contains no provisions explicitly guaranteeing access to criminal trials— much less, to pretrial criminal proceedings. For Justice REHNQUIST the absence of such a guarantee is decisive; he would require only that “both the prosecuting attorney and the defendant have consented to an order of closure approved by the judge.” Richmond Newspapers, Inc. v. Virginia, supra 448 U.S. at 605, 100 S.Ct. at 2842 (REHNQUIST, J., dissenting). But for the other Justices—Justice POWELL did not participate in the decision—a right of access is implicit in the first amendment.

In an opinion joined by Justice WHITE and Justice STEVENS, the Chief Justice said:

Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial, as well as the right to travel, nowhere appears in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. [Footnote omitted.] The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined.
We hold that the right to attend criminal trials [footnote omitted] is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and “of the press could be eviscerated,” Branzburg [v. Hayes], 408 U.S. [665], at 681 [92 S.Ct. 2646 at 2656, 33 L.Ed.2d 626 (1972) ].
Id. 448 U.S. at 579-80, 100 S.Ct. at 2829.

In an opinion joined by Justice MARSHALL, Justice BRENNAN expanded upon the nature of the important aspects of freedom of speech and of the press thus alluded to by the Chief Justice. “Publicizing trial proceedings aids accurate factfinding,” id. at 596, 100 S.Ct. at 2838, thus “furthering the efforts of our judicial system to assure the criminal defendant a fair and accurate adjudication of guilt or innocence,” id. at 593, 100 S.Ct. at 2836. But in addition, “the trial process serves other, broadly political, interests, and public access advances these obligations as well.” Id. at 594, 100 S.Ct. at 2836. If our society is “to survive and flourish, its members must share the conviction that they are governed equitably.” Id. Thus we must see that trials are fair. But “[s]ecrecy is profoundly inimical to this demonstrative purpose of the trial process. Open trials assure the public that procedural rights are respected, and that justice is afforded equally. Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for the law. Id. at 595, 100 S.Ct. at 2837. Moreover, the trial “plays a pivotal role in the entire judicial process ... [for] judges are not mere umpires, but, in their own sphere, lawmakers—a coordinate branch of government [footnote omitted; emphasis in original]. While individual cases turn upon the controversies between the parties, or involve particular prosecutions, court rulings impose official and practical consequences upon members of society at large.” Id. Thus, by guarding against abuse, “public access to trials acts as an important check, akin in purpose to the other checks and balances that infuse our system of government.” Id. at 596, 100 S.Ct. at 2838.

Our own Supreme Court and this court have made comparable statements of the importance of public access to the trial process. See Commonwealth v. Contakos, 499 Pa. 340, 453 A.2d 578 (1982) (new trial required where trial judge closed court room during testimony of key witness; full discussion of importance of public trials); Commonwealth v. Johnson, 309 Pa.Super. 367, 455 A.2d 654 (1982) (new trial required where trial judge closed court room during selection of jury). And see the recent decision by the New Jersey Supreme Court in State v. Williams and State v. Koedatich, 93 N.J. 39, 459 A.2d 641 (1983) (public has right under first amendment of United States Constitution and under parallel provision of New Jersey Constitution to attend all pretrial proceedings in criminal prosecutions).

As the Court of Appeals observed in United States v. Criden, supra, the reasoning of the majority of the court in Richmond Newspapers applies with equal force to trials and pretrial proceedings. Perhaps in fact it applies with greater force. For if the contraband, or the defendant’s confession, or the identification testimony is suppressed, the prosecution may be over, but if not suppressed, conviction may be so certain that a guilty plea ensues. The decisive event in a prosecution is therefore often not the trial but the pretrial proceeding. If justice is to be done, and is to be seen as done, if the courts are to fulfill their proper role as one branch in our system of government, the public must have access both to the trial and to the pretrial proceedings.

-8-

The public’s right of access to criminal proceedings is not absolute but is qualified by the right of the accused to a fair trial. Richmond Newspapers, supra 448 U.S. at 581 n. 18, 100 S.Ct. at 2830 n. 18. See also Globe Newspaper Company v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Commonwealth v. Hayes, 489 Pa. 419, 425, 414 A.2d 318, 321 cert. denied, 449 U.S. 992, 101 S.Ct. 528, 66 L.Ed.2d 289 (1980). If a proper balance of those rights is to be achieved, and the public’s right of access effectively protected, the public, which is to say, a representative of the public, must be given notice and an opportunity to be heard before a pretrial proceeding is closed. As the Court of Appeals pointed out in United States v. Criden, supra:

... “Certainly, the failure to invite participation of the party seeking to exercise First Amendment rights ... substantially impairs the protection which the Amendment seeks to assure.” Carroll v. President of Princess Anne, 393 U.S. 175, 181, 184, 89 S.Ct. 347, 351, 353, 21 L.Ed.2d 325 (1968)....
____ The interests of the public will not necessarily be represented either by defendants or prosecutors. The defendant’s interests will obviously not coincide with that of the press. The Government, quite properly, has the duty to ensure a fair trial and has an obvious interest in securing a conviction that will withstand appeal; reversal of a conviction because of prejudicial publicity, though perhaps rare, poses a risk to a successful prosecution. We therefore cannot expect the Government to vindicate the public’s first amendment rights. Nor should the trial judge be placed “in the position of sole guardian of first amendment interests even against the express wishes of both parties.” Younger, The Sheppard Mandate Today: A Trial Judge’s Perspective, 56 Neb.L.Rev. 1, 6-7 (1977). 675 F.2d at 557-58.

In Criden the court concluded that the Constitution, while requiring “some notice,” does not “require [] any individual notice to the press or to the public” before the trial court entertains a motion to close a pretrial criminal proceeding. Id. at 558, 559. It was sufficient, the court held, if motions for closure were “docket[ed] ... sufficiently in advance of any hearing on or disposition of the closure motion to afford interested members of the public an opportunity to intervene and present their views to the court.” Id. at 559 (footnote omitted).

Here, the lower court’s error was not in failing to give notice to the public but in denying an opportunity to be heard. There was notice to the public. Although we do not know when, how, or by whom it was given, that it was given is shown by the fact, apparent on the record, that very shortly after the hearing started, a member of the press appeared and asked the lower court “that the proceedings be stopped until we can get a lawyer here to make a motion to request that the press be permitted.” N.T. 7. However, there was no opportunity to be heard. The court’s response to the request for time to “get a lawyer here” was: “Well, I am not going to stop the proceedings. I have already made a ruling on that with regard to the members of the press.” Id. The person who had made the request was “then escorted from the courtroom and the hearing continued.” Slip op. at 2. Plainly, this response was insufficient “to vindicate the public’s first amendment rights.” United States v. Criden, supra at 558. The hearing had just started. No reason appears why the court could not have taken a brief recess to enable counsel to appear and argue against the motion for closure. In Gannett v. DePasquale, supra, Justice BLACKMUN, joined by three other Justices, after explaining in his concurring and dissenting opinion why it was not enough to hear from only the defendant and the prosecutor, said that “any person removed from a court should be given a reasonable opportunity to state his objections prior to the effectiveness of the [closure] order.” 443 U.S. at 445-46, 99 S.Ct. at 2939. Similarly, Justice POWELL - in his concurring opinion in Gannett stated that “[u]pon timely objection to the granting of the motion, it is incumbent upon the trial court to afford those present a reasonable opportunity to be heard on the question whether the defendant is likely to be deprived of a fair trial if the press and public were permitted to remain in attendance.” Id. at 401, 99 S.Ct. at 2916.

-4-

The lower court also erred in failing to articulate, on the record and before ordering closure, its consideration of alternatives to closure. In United States v. Criden, supra at 560-61, the Court of Appeals has collected the authorities establishing “a fairly broad consensus that, before a court closes a pretrial criminal hearing, it must at least consider alternatives to closure and explicitly state its reasons on the record for rejecting such alternatives.” Id. at 560. Among these authorities is the American Bar Association Standards Relating to the Administration of Justice: Fair Trial and Free Press, Standard 8-3.2 (2d ed. 1980) (court may close only if it finds prejudicial effect of information to be disclosed “cannot be avoided by any reasonable alternative means”). And see State v. Williams and State v. Koedatich, supra, 459 A.2d at 659 (court must “disclose on the record its findings of fact and the basis for its conclusion as to closure.”); Petition of the Daily Item, 310 Pa.Super. 222, 226, 456 A.2d 580, 582 (1983) (court must consider alternatives before closing preliminary hearing); Revised Free Press—Fair Trial Guidelines of the Judicial Conference of the United States—1980, 87 F.R.D. 525, 535 (1980) (court shall make specific findings for the record “that reasonable alternatives to closure will not adequately protect defendant’s right to a fair trial”); Judicial Conference Advisory Committee on the Federal Rules of Criminal Procedure, Rule 43.1(b)(2) and Advisory Note (court must make findings for the record that the prejudicial effect “cannot be avoided by any reasonable alternative means” other than closure).

In Criden the court found it unnecessary to decide whether the Constitution requires the lower court to articulate on the record why alternatives to closure have been rejected. Id. at 561. We also find that decision unnecessary. Instead, we need only hold, and we do hold, that the lower court was obliged to comply with Standard 8-3.2 of the ABA Standards on Fair Trial and Free Press, supra. For other occasions on which either our Supreme Court or this court has required compliance with the ABA Standards, see e.g., Reese v. Danforth, 486 Pa. 479, 406 A.2d 735 (1979) (Standards for the Defense Function § 1.1—ethical responsibilities of public defenders); Commonwealth v. Bailey, 480 Pa. 329, 390 A.2d 166 (1978); (Standards for the Defense Function—§ 4.1—defense counsel’s duty to investigate); Commonwealth v. Gainor, 289 Pa.Super. 190, 432 A.2d 1116 (1981) (same); Commonwealth v. Neal, 493 Pa. 335, 426 A.2d 576 (1981) (Function of the Trial Judge—impartiality at trial); Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980) (Function of the Trial Judge—impartiality in imposing sentence); Commonwealth v. Allen, 280 Pa.Super. 599, 421 A.2d 1094 (1980) (Standards for Pleas of Guilty § 2.1—withdrawal of plea). And cf. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Walters, 287 Pa.Super. 53, 429 A.2d 716 (1981); Commonwealth v. Wareham, 259 Pa.Super. 527, 393 A.2d 951 (1978); ABA Standards supra, Sentencing Alternatives and Procedures § 5.6(h) (lower court must articulate on record reasons for sentence).

Following the appeal to this court, the lower court filed an opinion explaining why it had granted the motion for closure. In the course of this opinion the court explains why it rejected a change of venue and sequestration as alternatives to closure. This opinion, however, cannot satisfy the court’s obligation to articulate its reasons for ordering closure, for it comes too late. It is in essence an after-the-fact, ex parte, statement. If the public’s first amendment right of access is to be effectively protected, the court must state before ordering closure why it considers alternatives to closure unsatisfactory. Only in that way will those who oppose closure be able to respond. Given a chance to respond, they may be able to persuade the court that it is mistaken, or they may be able to suggest an alternative not thought of by the court but that when thought of, is found to be satisfactory.

The necessity of an articulation by the court of its reasons for closure before ordering closure is illustrated by the present case. The lower court states in its opinion that “[a] change of venue would not have advanced the defendant’s right to a fair trial,” slip op. at 6; that “[n]o other trial procedure device \i.e., other than closure] would have eliminated these prejudicial disclosures,” id. at 8; that voir dire “confirmed the Court’s suspicions that [not to order closure] would have made a fair and impartial trial impossible,” id. at 9 n. 1; that “[n]either this Court, the defense, nor the Commonwealth, knew how long the suppression hearing would take” and “[t]he cost of [sequestration] would have been astronomical,” id. at 9. All of this may be true. But also, it may not be. Without any sort of record having been made we cannot appraise the accuracy of the lower court’s statements. Nor can even the lower court know whether it struck the proper balance between the public’s right of access to the pretrial hearing and the defendant’s right to a fair trial. A court may never feel any assurance that it has decided an issue correctly until after it has heard both sides.

REVERSED.

CAVANAUGH, J., files a concurring statement.

CAVANAUGH, Judge,

concurring:

I join the majority opinion but write separately only to add that in my view the “notice” that the court is considering closure of a pre-trial hearing may be as simple as a court’s response to a motion for closure at the outset of a hearing. Our courts are burdened by a large number of pre-trial hearings and closure often is properly ordered for reasons having nothing to do with media coverage of the hearing. Notice should not be equated with notification and I think we must avoid any decision which unnecessarily enmeshes the trial courts in a procedural straightjacket which will inevitably cause further confusion and delay. In the great majority of cases there is no interest in opposing an order of closure, and in those where the public’s right to know is being asserted, ordinary vigilance by its proponents will ensure an adequate opportunity to be heard. For the same reasons I would not require the court to articulate its reasons for closure prior to an order of closure, unless there has been some opposition to closure. Finally, I would add that it is my understanding that our reversal of the order below should not be read as in any way affecting the verdict below or any subsequent judgment of sentence thereon.

      . Appellant also argues that Article 1, section 11, of the Pennsylvania Constitution ("All courts shall be open”) guarantees its right to access to the hearing. Brief for Appellant at 8. We do not reach this issue.

      . In these circumstances we think it unnecessary to prescribe what sort of notice to the public a lower court should give when presented with a motion for closure. The context of different motions will vary: they may be presented orally or in writing, in open court or in chambers, when a representative of the public is present and when one isn’t, and so on. If a rule is to be promulgated prescribing the proper notice procedure, that must be done by the Supreme Court. Pa. Const, art. 5, § 10(c). See also 42 Pa.C.S.A. § 502; Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974). Pending such a rule—if there is to be one—we leave to the lower courts the decision as to what sort of notice is in the particular circumstances of the case appropriate.

      . In its supplemental opinion, filed after this appeal was orally argued, the lower court responds to a question we asked during argument regarding what opportunity to be heard was afforded appellant. The court states that sometime in the day of the pretrial hearing—the court does not state at what stage of the hearing—it had a conference in chambers with counsel for two newspapers, including appellant, “and several reporters.” Slip supp. op. at 1. Neither the prosecutor nor defense counsel was present, as they were "involved in the trial and the selection of the jury for that trial." Id. at 1-2. The court states that "[n]o effort was made to have this conference recorded and no request was made to this effect by [appellant]." Id. at 3. Although the court outlines the nature of the conference, in the absence of a record we are unable to determine to what extent the conference represented an opportunity to be heard rather than an explanation by the court of a ruling it had already made and was unwilling to disturb.


author: VAN der VOORT, Judge:

text:
    462 A.2d 1324
    CITY FIREFIGHTERS’ ASSOCIATION OF PHILADELPHIA, LOCAL 22, Appellant v. CITY OF PHILADELPHIA and et al.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1981.
    Filed June 24, 1983.

      John W. Beavers, Jr., Philadelphia, for City Firefighters, appellant (at No. 456) and appellee (at No. 1147).
    William F. Coyle, Philadelphia, for Akers et al., appellants (at No. 1147) and appellees (at No. 456).
    Before PRICE, MONTEMURO and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This appeal involves a dispute between the City Firefighters’ Association of Philadelphia, Local 22 (hereafter referred to as the Union) and a number of Officers of the Fire Department of Philadelphia (hereafter referred to as Officers). The City of Philadelphia has informed this court that while it is a named party, it has no interest in the current appeal and will not file a brief.

Prior to a 1976 arbitration award the Union supplied its members with the following form pertaining to the withholding of union dues.

CITY OF PHILADELPHIA
You are hereby authorized and empowered to withhold from my monthly pay the sum of_(_) dollars as dues payable to CITY FIRE FIGHTERS’ ASSOCIATION-LOCAL 22 I.A.F.F.—AFL-CIO which money you may pay over to the Treasurer of City Fire Fighters’ Association, Local 22; this power and authority is revocable by me in writing at any time and at my pleasure, and shall not under any circumstances be construed as an assignment to the Union of any interest in pay, partial or otherwise,____
(Emphasis supplied)

An arbitration award was entered on June 6, 1976, which was applicable in August 1978, contained the following provision.

The City of Philadelphia agrees to deduct dues and initiation fee of Local 22 from the pay of those fire fighters who individually request in writing that such deductions be made. The amounts to be deducted shall be certified with the City of Philadelphia, by Local 22, and the aggregate deductions of all fire fighters shall be remitted together with an itemized statement to Local 22 by the last day of the succeeding month, after such deductions are made. This authorization shall be irrevocable by the fire fighter during the term of this Award, except that it may be revoked, in writing, during a period of fifteen (15) days prior to the expiration of such Award, and, provided further, that that written notification is received by the City of Philadelphia and Local 22, within the prescribed fifteen (15) days period as aforesaid.
(Emphasis supplied)

In August 1978, the City forwarded an amount to the Union that was substantially less than that collected for dues in prior months. This was a result of 179 officers having notified the City either to discontinue the dues withholding and/or that the officer was withdrawing from the Union. Similar notice was not given to the Union.

The Union brought an action in equity against the City to determine the propriety of the City’s failure to continue the checkoff of Union dues as to the Officers. The City disclaimed any interest except as a third party stakeholder. The Officers intervened arguing that the Union was not entitled to the dues in question. The City was ordered to hold all sums already collected in escrow pending a final resolution. By opinion, dated November 1, 1979 and “Supplemental and Amended Conclusions of Law and Order” of January 23, 1980, the lower court found that the Officers had the right to revoke at will their checkoff authorization. The court concluded that any Officer who filed a revocation was entitled to the return of any sums held in escrow. Those Officers who merely informed the City that they were withdrawing from the Union were not entitled to the withheld monies. All proceedings were stayed pending the outcome of this appeal.

Both parties have appealed. The Union argues that it is the exclusive bargaining agent of the Fire Department and that the 1976 arbitration award limited the time and manner for revoking the checkoff authorization. It contends that as the exclusive representative it is entitled to the dues withheld. The Officers contend that the only issue before the court was whether the City could continue to withhold the Union dues. They argue, that since they had effectively revoked the authorization for the checkoff, the City could no longer withhold the dues. The controversy devolves to whether the initial authorization sets forth the controlling revocation procedure or whether the subsequent arbitration award incorporated and modified the authorization cards. There is no claim here that the attempted revocations were effective under the arbitration award; such an attempt would clearly have been unsuccessful as the bargaining unit was not apprised of the attempted revocations. See: Associated Press v. N.L.R.B., 492 F.2d 662 (D.C.Cir.1974).

. We may properly look to private sector and Federal cases for guidance where there is “no meaningful difference” between the Public Employe Relations Act (PERA), 43 P.S. § 1101.201 et seq. and National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq. Burse v. Com. Pa. Labor Relations Bd., 56 Pa. Commonwealth Ct. 555, 559, 425 A.2d 1182, 1184 (1981). Here at issue is a checkoff provision. PERA provides for such check offs; in the private sector, both the Pennsylvania Labor Relations Act (PLRA) and the Labor Management Relations Act (LMRA) provide for dues checkoffs. Act III, 43 P.S. § 217.1 et seq. grants the right of collective bargaining to police and firefighters. However, Act III does not explicitly address the question of dues checkoffs. While Act III is to be read in pari materia with the PLRA, Pa. Fire Of. Ass’n v. Labor Rela. Bd., 470 Pa. 550, 369 A.2d 259 (1977), PERA should not be read in pari materia with Act III. Geriot v. Council of Borough of Darby, 491 Pa. 63, 417 A.2d 1144 (1980). We find it unnecessary, for the purpose of this appeal, to attempt to unravel the differences, and the interrelationships, of the various statutes. It suffices to note that, on a general level, we perceive no material differences, which would affect our reliance, in this appeal, on both private and public sector experiences. There has developed a body of common law applicable to the current situation.

When reviewing the cases from the various jurisdictions we come to the conclusion that under the facts of this case, the parties’ actions should be governed by the revocation procedure set forth in the authorization card.

There is a “historically recognized ... distinction between union membership and due deduction agreements characterizing the latter as a simple contract between employee and employer----” Burse, 56 Cmwlth. Ct. at 559, 425 A.2d at 1184. See also: Felter v. Southern Pacific Co., 359 U.S. 326, 79 S.Ct. 847, 3 L.Ed.2d 854 (1959); Peninsula Shipbuilders’ Ass’n v. N.L.R.B., 663 F.2d 488 (4th Cir.1981); N.L.R.B. v. Atlantic Printing Specialties, 523 F.2d 783 (5th Cir.1975); Associated Press v. N.L.R.B., 492 F.2d 662 (D.C.Cir.1974); and Bradley v. Local 119, International U. of Electrical R & M Workers, 236 F.Supp. 724 (E.D.Pa.1964). Such checkoff arrangements are administrative conveniences provided for the benefit of the employees. Felter, supra; Anheuser-Bush v. International Broth. of Teamsters, 584 F.2d 41 (4th Cir.1978); Atlantic Printing, supra; and Burse, supra.

“[I]t is only by virtue of the authorizations that the Company is empowered to deduct union dues____ And to the extent that the Company failed to comply with the express terms of the authorization, the amount of any wrongful deductions must be remitted____” Hays v. Local No. 12, United Rubber Cork, 523 F.Supp. 50 (N.D.Ala. (1981). Other courts have similarly held that the authorization card is the main requisite to a dues checkoff and therefore revocation could only be effected in conformity with the authorization card. N.L.R.B. v. Shen-Mar Food Products, Inc., 557 F.2d 396 (4th Cir.1977); Associated Press, supra. When interpreting the language of such authorizations, we must view the facts and circumstances as they existed at the time the cards were executed. Felter, supra; Atlantic Printing, supra, and Hayes, supra.

Our research has revealed five cases which are sufficiently analagous to demonstrate that our disposition of this appeal is correct. Three are from the federal courts and two are the products of the courts of the Commonwealth of Pennsylvania.

In Peninsula Shipbuilders’ Ass’n, supra, the authorization form required that revocation be submitted in writing. By subsequent contract, written revocation was to be submitted on the form provided by the Union and signed at the Union hall. The Fourth Circuit found that the authorization cards did not permit the Union to reject revocation for any reason and, in particular for failure to use the Union supplied form and to follow the Union desired procedure.

The Court of Appeals for the Fifth Circuit held that a subsequent contract could not abrogate the revocation procedure set forth in a previously executed authorization form. Atlantic Printing, supra. There the form allowed for revocation at the end of a one year period or at the expiration date of the agreement, otherwise the authorization was automatically renewed. Prior to the original expiration date, the contract was prematurely extended. The Union argued that the original contract had not terminated and therefore employees could not revoke their authorization. The court disagreed; employees had a right to revoke their authorization at the original expiration date.

The last federal case we wish to discuss in this regard is Hays, supra. The authorization form involved there provided that it was irrevocable for one year or until termination of the contract. If revocation was not made within one of the two escape periods, the authorization automatically renewed itself. The contract followed the language of the form and provided that it would renew itself unless one of the parties objected. The contract was continued on a day to day basis until a new agreement was reached. As of the time of execution of the authorizations the employees, knew the date the contract would expire therefore they had the right to revoke at that time irregardless of whether the agreement was extended.

Turning to cases from our courts, we find additional support. In Phila. Fed. of Teachers v. Bd. of Ed., 458 Pa. 342, 327 A.2d 47 (1974), the issue faced by the court was whether the retroactive application of a contract continuing maintenance and dues deduction provisions could nullify a resignation and revocation which occurred before the extension agreement was signed. The court found that the bargaining unit’s and employer’s choice of an effective date could not affect an employee’s rights as there was no contract in effect at the time of revocation.

Similar reasoning was employed by this court in Horn v. $1,950, 184 Pa. Superior Ct. 321, 132 A.2d 376 (1957); affirmed, 392 Pa. 288, 140 A.2d 599 (1958). The signed authorizations provided for deductions provided there was a collective bargaining agreement in effect. Dues for the month preceding the expiration date were deducted after the termination of the contract. This court held that the clear language of the authorization did not permit deductions subsequent to the end of the contract.

We are persuaded that in this case, under the signed authorizations for dues deduction, the officers could, at will, by written notice to the City, revoke the City’s power to make such deductions. Just as employee union members, must adhere to the procedure set forth in the authorizations, see, Amalgamated Meat Cutters v. Shen-Mar Food Pro., 405 F.Supp. 1122 (W.D.Va.1975); and United Electrical R & M Wkrs., v. Westinghouse Elec. Corp., 345 F.Supp. 274 (W.D.Pa.1972), so must the Union and employer adhere to the endorsed authorization. Here the dues’ revocations were in accordance with the Union supplied forms; the forms did not require notice to the Union; the attempts to revoke were effective. However, any officer who relied on his resignation from the Union to terminate his checkoff authorization without specifically filing a revocation did not successfully revoke his authorization in accordance with the form he had signed. See Burse, supra.

To properly and fully resolve this appeal we must address several other points raised by appellant.

The Union contends that the officers had notice of the arbitration award and therefore ratified by their silence and inaction, the dues checkoff provision therein. We disagree. While in certain limited circumstances silence or inaction may result in an acceptance or ratification of a certain agreement, such is the exception. See Cohen v. Johnson, 91 F.Supp. 231 (M.D.Pa.1950); Baum’s Estate, 274 Pa. 283, 117 A. 684 (1922); Wiliston on Contracts, Third Edition Section 91 et seq.; and Restatement, Second, Contracts § 69. Under the circumstances of this case, silence or inaction could not abrogate the initial authorization forms.

As previously discussed the checkoff authorization is an agreement between the individual employee (not the employees as a single body) and the employer. In fact, 29 U.S.C. § 186 and 43 P.S. 211.6(1) both require that, for a checkoff to be effective, each employe whose wages are affected must individually sign an authorization. The collective bargaining agreement itself recognizes this by providing for the deduction of those “who individually request in writing that such deductions be made.” Therefore, we find it would not be appropriate in this context, to allow an individual’s consent to be overriden by the language of a subsequent collective bargaining agreement or award.

The Union also contends that both the City and the Officers are bound by the collective bargaining agreement. It contends that under Act III § 7, the City must amend its ordinances to provide for revocation in accordance with the contractual provision. See 43 P.S. § 217.7. At the time in question, Title 19 of the Philadelphia Code § 203 provided:

Authorization for Payroll Deductions shall be made by employees in writing upon forms prescribed and furnished by the Director of Finance, and authorized deduction shall be made at such time in such manner as the Director of Finance may establish. An authorization for payroll deductions may be revoked in writing by the authorizing employee in such manner as the Director of Finance may establish.
(Emphasis supplied)

Thus, the Union contends the City should have amended § 203 to provide for revocation in accordance with the limitations of the agreement and no other method was proper.

Appellant Union again is overlooking the individual nature of the dues checkoff authorizations. Whether a checkoff provision is a bargainable issue or not is not the question here; nor is the City’s responsibility to amend its ordinances to implement the agreement the focus. We expressly decline to comment on either point. Instead, we rely on our early discussion where we held that the language of the authorization itself must be abided by. The parties may not convert an individual authorization into a collective one. To reiterate our earlier position: but for the individual officer’s direction dues could not be withheld; therefore, neither the City nor the Union could require revocation by a means inconsistent with the authorizations.

Order affirmed.

PRICE, J., did not participate in the consideration or decision of this case.

      . This appeal is properly before us, as it was properly before the lower court, as, the Pennsylvania Labor Relations Board refused to exercise jurisdiction over the matter and the issue to be resolved is a contractual one. See Hollinger v. Department of Public Welfare, 469 Pa. 358, 365 A.2d 1245 (1976).

      . 43 P.S. § 1101.705 Dues deductions, maintenance of membership; subjects of bargaining
      Membership dues deductions and maintenance of membership are subjects of bargaining with the proviso that as to the latter, the payment of dues and assessments while members, may be the only requisite employment condition.
      1970, July 23, P.L. 563, No. 195, art. VII, § 705.

      . 43 P.S. § 211.6(1) It shall be an unfair labor practice for an employer
      (f) To deduct, collect, or assist in collecting from the wages of employes any dues, fees, assessments, or other contributions payable to any labor organization, unless he is authorized so to do by a majority vote of all the employes in the appropriate collective bargaining unit taken by secret ballot, and unless he thereafter receives the written authorization from each employe whose wages are affected.

      . 29 Ü.S.C. § 186:
      (a) It shall be unlawful for any employer or association of employers or any person who acts as a labor relations expert, adviser, or consultant to an employer or who acts in the interest of an employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value—
      ******
      (c) The provisions of this section shall not be applicable ... ******
      4. with respect to money deducted from the wages of employees in payment of membership dues in a labor organization: Provided, That the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner; ____

      . In resolving this appeal we have addressed the contentions raised in the cross appeal hence no further elaboration is necessary.