text:
    509 A.2d 394
    COMMONWEALTH of Pennsylvania, Appellee, v. Michael CAMPBELL, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1986.
    Filed May 19, 1986.

      Howard H. Brown, Chester, for appellant.
    Sandra L. Elias, Deputy District Attorney, Media, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

On the evening of January 21, 1984, John Maletsky stopped his automobile, in which his four year old daughter was a passenger, for a stoplight at the intersection of Kerlin Street and the exit ramp from 1-95 in the City of Chester. While the vehicle was stopped at the light, two black males approached, shot Maletsky, pulled him from the car and shot him again. Dean Campbell was one of the assailants. His brother Michael, who is the present appellant, entered the Maletsky vehicle and drove away with the child in the front seat. After driving approximately two blocks, the vehicle became immobilized by ice on the road surface. Mrs. Maletsky, who had been following her husband in another car, observed her husband but did not see either her husband’s car or her daughter. Maletsky said “they took my child” and pointed in the direction in which the car had been driven. At that point, Dean Campbell grabbed Mrs. Maletsky’s purse, pulled a gun and escaped. Mrs. Maletsky ran to her husband’s immobilized vehicle. As she approached, she observed Michael Campbell, the appellant, trying to move the car from the ice. He was then wearing a red cap. He fled when Mrs. Maletsky arrived at the car. However, his fingerprints were found on the car. John Maletsky later died as a result of gunshot wounds.

Michael Campbell was tried by jury and was found guilty of robbery, murder of the second degree, kidnapping, criminal conspiracy and various lesser offenses arising from the same incident. Post-verdict motions were denied, and sentence was imposed. On direct appeal, Michael Campbell contends (1) that the evidence was insufficient to sustain convictions for murder, conspiracy and kidnapping and (2) that the trial court erred in excluding a statement made by his brother, Dean, which exculpated appellant with respect to the shooting.

In reviewing the sufficiency of the evidence, we view the evidence presented and all reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983); Commonwealth v. Shaver, 501 Pa. 167, 169, 460 A.2d 742, 743 (1983); Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229 (1984).

“[A] common understanding or agreement is the heart of every conspiracy. Commonwealth v. Waters, 463 Pa. 465, 471, 345 A.2d 613, 616 (1975). As stated, however, in Commonwealth v. Strantz, 328 Pa. 33, 43, 195 A. 75, 80 (1937), ‘An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities.’ A conspiracy may be proven inferentially by showing the relation, conduct, or circumstances of the parties, and the overt acts of alleged co-conspirators are competent as proof that a criminal confederation has in fact been formed. Commonwealth v. Eiland, 450 Pa. 566, 570, 301 A.2d 651, 652 (1973).” Commonwealth v. Kennedy, 499 Pa. 389, 395, 453 A.2d 927, 929-930 (1982). See also: Commonwealth v. Robinson, 351 Pa.Super. 309, 316, 505 A.2d 997, 1000 (1986); Commonwealth v. Brown, 351 Pa.Super. 119, 122-123, 505 A.2d 295, 296 (1986); Commonwealth v. Hart, 348 Pa.Super. 117, 124, 501 A.2d 675, 678 (1985); Commonwealth v. Mills, 332 Pa.Super. 75, 81, 480 A.2d 1192, 1195 (1984); Commonwealth v. Hurlbert, 329 Pa.Super. 119, 125-126, 477 A.2d 1382, 1385 (1984); Commonwealth v. Gordon, 329 Pa.Super. 42, 52, 477 A.2d 1342, 1347 (1984).

In addition to evidence of the conduct of the participants at the time when Maletsky was pulled from his car and shot, the Commonwealth showed that immediately prior thereto, Dean Campbell and a black male wearing a red or burgundy cap had approached another vehicle at the same intersection. Fearful of an encounter with the men, the driver of that car had driven through the red light and escaped. Mrs. Maletsky’s testimony was that appellant had been wearing a red knit cap while he was trying to move the Maletsky vehicle from the ice. From all of this evidence, the jury could infer that Dean and Michael Campbell had been acting in concert in attempting to rob John Maletsky, a passing motorist.

The jury could also find that the shooting was committed in furtherance of the conspiracy to rob. “No principle of law is more firmly established that when two or more persons conspire or combine with one another to commit an unlawful act, each is criminally responsible for the acts of his associate or confederate committed in furtherance of the common design.” Commonwealth v. Strantz, supra 328 Pa. at 40, 195 A. at 79. In discussing conspiratorial accountability for a criminal act, the Supreme Court has said:

When there is evidence that one, who has not struck the fatal blow, has, nonetheless, shared in the criminal intent and the criminal activity, that person has aided and abetted in the commission of the crime and, thus, may be held responsible as an accomplice to another’s acts and the consequences of those acts. Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973); Commonwealth v. Wilson, 449 Pa. 235, 296 A.2d 719 (1972); Commonwealth v. Lowry, 374 Pa. 594, 98 A.2d 733 (1953).

Commonwealth v. Vaughn, 459 Pa. 35, 39-40, 326 A.2d 393, 395 (1974). See also: Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984); Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976). The jury could properly find that appellant was criminally responsible for the shooting death of John Maletsky even though the death-dealing bullets had been fired by appellant’s brother. See: Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984).

The crime of kidnapping is defined at 18 Pa.C.S. § 2901 as follows:

(a) Offense defined. — A. person is guilty of kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following intentions:

(1) To hold for ransom or reward, or as a shield or hostage.
(2) To facilitate commission of any felony or flight thereafter.
(3) To inflict bodily injury on or to terrorize the victim or another.
(4) To interfere with the performance by public officials of any governmental or political function.

Appellant focuses on the statutory language that a victim be removed “a substantial distance” and argues that since he did not remove the Maletsky child a substantial distance, he should not have been found guilty of kidnapping.

In Commonwealth v. Hughes, 264 Pa.Super. 118, 399 A.2d 694 (1979), this Court considered the language of the statute and concluded that it was not intended to refer to “a given linear distance.” Id., 264 Pa.Superior Ct. at 122, 399 A.2d at 696. Considering similar statutory language, the Supreme Court of New Jersey concluded that a “sensible interpretation is one that views a substantial distance as one that isolates the victim and exposes him or her to increased risk of harm.” State v. Masino, 94 N.J. 436, 446, 466 A.2d 955, 960-961 (1983). We agree.

The victim in the instant case, a four year old child, was seated in the vehicle being driven by her father when the father was pulled from his car and shot. When appellant entered the car and drove away, the child was crying for her father. The child’s mother shortly thereafter pursued the vehicle on foot. She was able to retrieve her daughter only because the vehicle had become immobilized on ice. A jury could find under these circumstances that appellant, despite the fact that he had removed his victim only several blocks, had isolated the child in a different environmental setting and had exposed her to a different and increased risk of harm.

Appellant testified at trial that he had not meant any harm to the child and was merely attempting to remove the child from the zone of danger created by appellant’s brother who had been doing the shooting. However, the jury could accept all, part or none of this explanation. Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Croll, 331 Pa.Super. 107, 117, 480 A.2d 266, 271 (1984); Commonwealth v. Newman, 310 Pa.Super. 493, 496, 456 A.2d 1044, 1045 (1983).

After the shooting, appellant and his brother fled to Louisiana. When Dean Campbell was apprehended, he gave a taped confession in which he admitted the shooting and attempted to exonerate his brother Michael. At trial, Michael’s attempt to use the statement made by his brother was met by a Commonwealth objection, which was sustained by the trial court. On appeal, the trial court’s evidentiary ruling is assigned as error. Appellant contends that his brother’s statement was a declaration against penal interest and, therefore, admissible as an exception to the hearsay, exclusionary rule.

The law is clear, however, that “those portions of a statement made by an out of court declarant which are not inculpatory, such as statements that another person was not guilty of the crime, are not ‘declarations against penal interest’ and are not admissible under [the] hearsay rule exception.” Commonwealth v. Brinkley, 505 Pa. 442, 453-454, 480 A.2d 980, 986 (1984); Commonwealth v. Anderson, 501 Pa. 275, 289, 461 A.2d 208, 214-215 (1983); Commonwealth v. Colon, 461 Pa. 577, 583-585, 337 A.2d 554, 557-558 (1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976). The trial court did not err when it refused to allow into evidence the hearsay statement by

Dean Campbell that his brother, the appellant, was not involved in the robbery and shooting of John Maletsky.

The judgment of sentence is affirmed.

      . Dean Campbell refused to testify on Fifth Amendment grounds that his testimony would be self-incriminating.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    509 A.2d 397
    In the Interest of Y.P. and T.H. Appeal of V.M., Mother of Children.
    Superior Court of Pennsylvania.
    Submitted Jan. 15, 1986.
    Filed May 12, 1986.

      Elissa M. Stuttler, Assistant Public Defender, Franklin, for appellant.
    Before CAVANAUGH, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge:

Appellant, V.M., challenges the lower court’s findings of dependency of her children, Y.P. and T.H., and their resultant temporary removal from her custody. Appellant argues that: (1) the Commonwealth failed to meet the burden of proof of clear and convincing evidence; (2) appellant’s constitutional rights were denied because her children were removed from her custody on less than clear and convincing evidence; (3) the court erred in awarding temporary custody of T.H. to Children and Youth Services because there was no testimony of wrong-doing regarding T.H.; (4) the court erred in failing to inquire into solutions that would enable the children to remain with the custodial parent; (5) the court erred in not holding a dispositional hearing within twenty days of a finding of dependency as required by 42 Pa.Cons.Stat.Ann. Sec. 6341(c); and (6) the court, as trier of fact, erred by deciding the outcome of the dispositional hearing before all testimony was heard. We find these arguments to be without merit and affirm the order of the court below.

On Monday, August 20, 1984, B.P., Y.P.’s father, picked up his daughter from appellant’s home. He was to have custody of her for the ensuing week. Y.P. told her father of an incident that occurred during the weekend of August 18-19, 1984. Y.P. stated that her mother, appellant in this case, and her brother were in the bathtub at appellant’s house with two nude men. Her mother was kissing one of the men. Y.P. was pulled into the tub and indecently assaulted by the other man.

On August 22, 1984, juvenile petitions were filed alleging that Y.P., age 7, and T.H., age 2, were dependent. A hearing was held on August 24, 1984. At that hearing, the Commonwealth presented evidence in the form of testimony by Y.P. and B.P. Appellant was present and represented by counsel. Appellant presented testimony by the two men Y.P. implicated in the incident. They presented alibi testimony and stated that they had never been at appellant’s home at the same time. All three denied that the incident ever took place. At the conclusion of the hearing, Y.P. and T.H. were adjudged dependent. The court found that the children were in need of care and protection to prevent any repetition of the incident and that they needed “the attention, supervision and control temporarily of the Children and Youth Services____” Order of the lower court of August 24, 1984 at 1. The court did not hold a separate dispositional hearing.

On October 3 and 4, 1984, appellant filed a motion for rehearing and a motion to dismiss. A hearing was held on November 30, 1984, at which time appellant offered alibi testimony that was corroborated by her mother, and earlier testimony of one of the men involved was corroborated by three of his employees. The testimony of the August 24 hearing was incorporated by reference. An order of dependency was entered on November 30, and a dispositional hearing was scheduled for December 6, 1984. At the dispositional hearing, Y.P. testified that appellant physically and verbally abused her. B.P., Y.P.’s father, and his wife testified that sometimes when Y.P. came to visit them she appeared to have been abused. Evidence was offered to show that Y.P.’s school performance had improved since she was removed from her mother’s custody, and that episodes of nightmares and bed wetting from which she had suffered now occur only after visitation with appellant. T.H.’s foster mother testified to the boy’s behavioral problems when he first came to live with her, and that he now experiences these problems only after visitation with appellant. The court entered an order placing Y.P. and T.H. in the custody of Children and Youth Services. Y.P. was to remain with her father and T.H. was to remain with his foster parents. The court specifically made no determination as to appellant’s future custodial rights. The court ordered counsel-ling for appellant, the two children, and B.P. and his wife. Appellant was given rights to monitored visitation. Additionally, Children and Youth Services and the counselor were to make full reports to the court in one month, and monthly thereafter until the court determined that any change in custody and visitation should be made in the interest of Y.P. and T.H.

There is ample evidence on the record to support the court’s finding of dependency by clear and convincing evidence. There is also evidence that would, if believed, support a finding that the incident complained of by Y.P. never occurred. The role of determining the credibility of witnesses and resolving factual conflicts in testimony belongs to the finder of fact. Janson v. Hughes, 309 Pa.Super. 399, 455 A.2d 670 (1982). There is no reason in the instant case for us to upset that determination. See Simon v. H.K. Porter Co., 407 Pa. 359, 180 A.2d 227 (1962).

Although no testimony was offered at the August 24 hearing to show that T.H. was physically molested, indecent assault of T.H. was not the reason for finding that he was dependent. A dependent child is one who “is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals----” 42 Pa.Cons.Stat.Ann. Sec. 6302(1) (Purdon 1982). “(I)t must be established that the child is presently without proper parental care, and ... that such care is not immediately available.” Matter of Yeager, 309 Pa.Super. 491, 495, 455 A.2d 717, 719 (1983). Clear and convincing evidence showed that appellant allowed both children to be involved in an incident to which they should never have been exposed. She allowed T.H. to witness the sexual assault of his sister. At the November 30 hearing, additional evidence was offered by which the court could conclude that T.H. was “without proper parental care ... necessary for his physical, mental, or emotional health or morals....” See 42 Pa.Cons.Stat. Ann. Sec. 6302(1) (Purdon 1982).

A child who has been adjudged dependent may not be removed from parental custody unless such separation is clearly necessary. Clear necessity is established when the court determines that alternatives to separation are unfeasible. In Interest of Ryan Michael C., 294 Pa.Super. 417, 440 A.2d 535 (1982). The teaching of parenting skills and follow-up supervision are two alternatives to separation. Id. However, these alternatives were not applicable to the instant case. This is not merely a case of neglect. Y.P. was sexually abused and T.H. was exposed to such abuse. The lower court stated repeatedly that the “children had to be protected from any possible further neglect and certainly against a repetition of the acts which were declared in the testimony.” Memorandum and Order of the lower court, dated November 30, 1984, p. 1-2. Such protection could not be achieved while the children were in appellant’s custody.

As reflected in its order of December 7, 1984, the court carefully considered the disposition of Y.P. and T.H. The court gave extensive instructions regarding temporary custody to ensure the protection of the children, as well as ordering counselling for appellant and the children. The court thus sought to help appellant and her children to deal with what had happened, and to prepare appellant to properly care for her children. The monthly progress reports ordered by the lower court will enable it to monitor any changes in appellant’s circumstances and to make changes in custodial and visitation care, in the interest of the children, as expeditiously as possible. The separation of Y.P. and T.H. from their mother was established by clear necessity. Under the facts of this case, no alternatives to separation were feasible.

Appellant argues that the court below erred in not holding a dispositional hearing within twenty days of its determination of dependency on August 24, 1984. This argument is without merit. The court is not required to bifurcate the proceedings into two separate hearings — one to determine dependency and the other to determine disposition. The two phases may be conducted in one hearing if sufficient evidence is presented to enable the court to make both determinations. See 42 Pa.Cons.Stat.Ann. Sec. 6341(c) (Purdon 1982). This is the procedure that was followed in the instant case.

The court below entered the order appealed from after two hearings at which all interested persons, including appellant, were represented by counsel. We find no merit to any of the issues V.M. has raised in this appeal. The order of the lower court is affirmed.

      . "If the court finds ... that the child is dependent, the court shall proceed immediately or at a postponed hearing, which shall occur not later than 20 days after adjudication if the child has been removed from his home to make a proper disposition of the case.”
      42 Pa.Cons.Stat.Ann. Sec. 6341(c) (Purdon 1982).


author: WIEAND, Judge:

text:
    509 A.2d 400
    COMMONWEALTH of Pennsylvania v. Elias REFILE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 13, 1986.
    Filed May 19, 1986.

      David M. McGlaughlin, Philadelphia, for appellant.
    Jill R. Cohen, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

On the afternoon of September 14, 1981, Elias Refile learned that his sister’s jaw had been fractured by a blow administered by Isaac Epps. Refile, together with his mother, his brother, and a friend, who armed themselves with nightsticks and a gun, set out for Epps’ residence. They found him sitting on the steps of his home with his nine year old son. When Epps saw them coming, he turned to run. Refile shot him twice in the back, causing Epps’ death shortly thereafter.

On January 25, 1983, Refile entered a plea of guilty to murder. Following an evidentiary hearing on the same day, the Honorable Juanita Kidd Stout found Refile guilty of murder of the first degree and sentenced him to prison for life. Three days later, on January 28, 1983, Refile filed pro se a motion alleging that guilty plea counsel had rendered ineffective assistance. On the same day, he filed, pro se, an appeal in the Superior Court. A majority of the Superior Court panel hearing Refile’s appeal — he was now represented by new counsel — remanded to permit Refile “to file a motion challenging the validity of his guilty plea.”

On March 5, 1985, Refile filed a motion challenging the validity of his plea of guilty. He alleged, inter alia, that counsel had misrepresented to him that his degree of guilt would rise no higher than voluntary manslaughter. He also contended that guilty plea counsel had rendered ineffective assistance at the degree of guilt hearing. On March 21, 1985, he filed a “Supplemental Motion to Withdraw Guilty Plea Pursuant to Pa.R.Crim.P. 320.” He argued in support of this latter motion that he had not been given a period of ten days following the entry of his guilty plea within which to consider and file a motion to withdraw the guilty plea prior to sentencing. Therefore, he contended, he should be allowed to withdraw his plea of guilty as though his request had been made prior to sentencing. An evidentiary hearing was held, but both motions were denied. This appeal followed.

On appeal, Refile no longer argues that his plea of guilty was invalidly entered. He argues, rather, that the hearing court erred in denying his motion to withdraw the guilty plea pursuant to Pa.R.Crim.P. 320.

Pa.R.Crim.P. 320 provides that “[a]t any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.” (Emphasis added.) Under this Rule, “ ‘[i]f the court finds “any just reason,” withdrawal of the plea should be freely permitted, unless the prosecution has been “substantially prejudiced.” ’ ” Commonwealth v. Middleton, 504 Pa. 352, 355, 473 A.2d 1358, 1359 (1984), quoting Commonwealth v. Forbes, 450 Pa. 185, 191, 299 A.2d 268, 271 (1973). A post-sentence motion to withdraw a plea pursuant to Pa.R.Crim.P. 321, on the other hand, will be granted only upon a showing of prejudice on the order of manifest injustice. Commonwealth v. Middleton, supra.

Appellant does not dispute that his request to withdraw the plea of guilty was made after sentence had been imposed. He argues, however, that he should have been permitted to proceed under the pre-sentence standards of Rule 320 because he was not given an opportunity to withdraw his guilty plea prior to the imposition of sentence. Appellant has cited no authority for the principle, implicit in his argument, that one who enters a plea of guilty must be given a period of ten days within which to reconsider his plea of guilty and file a motion to withdraw the plea before he can be sentenced. Our own research, similarly, has disclosed no support for such a principle of law. Rule 320 does not contain a mandatory waiting period before the imposition of sentence, and we discern no sound reason for reading the rule as implying such a requirement. Appellant’s argument to the contrary is rejected.

Appellant’s argument that the Supreme Court decision in Commonwealth v. Middleton, supra, mandates that he be permitted to withdraw his guilty plea pursuant to Rule 320 must also fail. In Middleton, the defendant had moved to withdraw his plea of guilty to murder after the degree of guilt hearing but prior to sentencing. The Commonwealth contended that inasmuch as the defendant had been found guilty of murder in the first degree, the imposition of sentence was a mere formality. As such, the Commonwealth contended, a motion to withdraw the plea of guilty should be deemed to have been filed after sentence had been imposed. The Supreme Court rejected this contention, observing that the imposition of sentence was not a mere formality, because the defendant had also entered pleas of guilty to robbery and conspiracy.

In the instant case, however, the motion to withdraw the plea of guilty was filed after appellant had been found guilty of murder of the first degree and after he had been sentenced to prison for life. In this case, moreover, there were no additional convictions where sentences were yet to be imposed. Appellant entered a plea of guilty to murder, was found guilty of murder of the first degree, and was sentenced to life imprisonment. He will not now be permitted to withdraw his plea of guilty unless there was prejudice in the nature of manifest injustice. Appellant has been able to show no such prejudice. His dissatisfaction with the trial court’s finding regarding the degree of guilt and a fortiorori with the sentence does not constitute prejudice in the nature of manifest injustice. See: Commonwealth v. Scoleri, 415 Pa. 218, 202 A.2d 521 (1964); Commonwealth v. West, 336 Pa.Super. 180, 485 A.2d 490 (1984); Commonwealth v. Owens, 321 Pa.Super. 122, 467 A.2d 1159 (1983).

The order denying leave to withdraw appellant’s plea of guilty to murder is affirmed.

      . The Superior Court also reviewed the evidence presented at the degree of guilt hearing and found it sufficient to support the trial court’s finding that Refile had been guilty of murder of the first degree.


author: HESTER, Judge:

text:
    509 A.2d 402
    Dorothy A. MILLER v. Cecil R. MILLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 24, 1986.
    Filed May 23, 1986.

      William S. Huganir, West Chester, for appellant.
    William H. Mitman, Jr., West Chester, for appellee.
    Before BROSKY, HESTER and ROBERTS, JJ.
   HESTER, Judge:

This is an appeal from an order of support entered on November 25, 1985. Appellant, father of a son who is the subject of this litigation, was ordered to pay $300 per month from June 14, 1984, for his son’s college education. Alleging several counts of error by the lower court, appellant now seeks relief. For the ensuing reasons, we reverse.

Appellant is a veterinarian employed by Smith Kline. Appellee, his ex-wife, is employed by AMP Products. Their son, Scott, for whom appellee sought support, graduated from high school and became emancipated in June of 1984. At that point, appellant discontinued the support payments required by an earlier support order. Appellee thereafter filed a petition seeking support for Scott’s college education. The Court of Common Pleas of Chester County issued an order on September 13, 1985 dismissing the claim for support for Scott without prejudice. Oral argument was heard following a grant of reconsideration, and, on November 25, 1985, the order was entered which is before us today. That order provided in pertinent part “[f]rom June 14, 1984, [appellant] shall pay $300.00 per month for Scott’s education expenses.”

Appellant initially challenges the order by contending that the trial court erred in its finding that appellant had net monthly earnings of $3,972.00. Second, he argues that the court erred in a) failing to consider Scott’s ability to contribute to his own education, and b) failing to require any contribution by appellee, thus holding appellant solely responsible for the cost of Scott’s education. Finally, appellant asserts that the court erred by not crediting appellant with direct payments of $160 per month made to Scott.

In the first issue, appellant argues that the trial court failed to reduce his net monthly income by the amount of money paid to appellee as alimony. Pursuant to an agreement between the parties, signed on November 23, 1983, appellant was to pay appellee $1,000 per month for thirty-six months. Contrary to appellant’s contention, in the trial court’s findings of fact, it did reduce appellant’s monthly income by the $1,000 alimony payment in reaching a net figure. However, appellant further argues that the monthly figure employed by the court is in error. Since the trial court failed to recite the figures used in reaching its conclusion, we must require that on remand, a complete statement of the figures relied upon by the court be entered in the record.

Appellant’s second argument also contains merit. Despite uncontradicted testimony that Scott earned $2,363.93 in 1984, the court failed to consider any contribution by the child to his education. It is well established that a parent who has sufficient assets and earning capability to furnish support without undue hardship for a child’s college education is charged with the duty to do so. Sutliff v. Sutliff 339 Pa.Super. 523, 489 A.2d 764 (1985). It is concomitantly true that the independent resources of a college-age child may be considered in determining the child’s need for support. Id., citing DeVergilius v. DeVergilius, 329 Pa.Super. 434, 478 A.2d 866 (1984). See also Commonwealth ex rel. Platt v. Platt, 227 Pa.Super. 423, 323 A.2d 29 (1974). That is not to say that a child must always contribute as much as possible to the payment of his or her educational expenses. Clearly, if a parent can meet the support needs of a college-age child with ease, a court is free to impose a complete obligation. In the case at bar, however, no mention was made of Scott’s potential contribution or how the court viewed that factor in light of his parents’ financial circumstances. This was error.

Similarly, the court’s conclusory statement that to impose the sole obligation upon appellant created no undue hardship fails to clarify for this court whether appellee’s ability to contribute to her son’s education in view of her expenses was considered. In reviewing a decision to amend support, we must be presented with evidence that the court weighed the financial circumstances of both parents and evaluated their ability to contribute support in light of their individual expenses. A trial court is not permitted to disregard the reasonable living expenses of a parent in awarding support. Commonwealth ex rel. Loring v. Loring, 339 Pa.Super. 92, 488 A.2d 324 (1985). To do so constitutes an abuse of discretion. The record contains no evidence that the court considered appellant’s expenses or appellee’s ability to contribute. In the absence of those facts, we cannot conclude there was no abuse of discretion.

Finally, the trial court failed to consider the contribution made by appellant directly to Scott as detailed at the hearing. It is clear that some portion of a total support obligation may be fulfilled by the provision of support directly to a child. Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Appellant must receive credit for payments made to Scott since June, 1984, except for those contributions which have previously been designated as gifts. To ignore this means of providing support to an emancipated child was likewise error.

For the above reasons, we reverse the order of the court below, and remand for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Appellee informed this court by letter dated March 3, 1986 that she would not be filing a brief on this matter.


text:
    509 A.2d 405
    Adison ACIE, John Hankins, Richard Bachmann, Bernard Curran, Frank Sari, Dennis Sandusky, Gary Herring, Thomas Jagger, Julius Kalkbrenner, James Calvin, Joseph Linz, Robert Zaval, James Rollinson, Lester Gorman, Joseph Gerber, Kent Spresser, Andrea Hallas, Kathleen Ryan, Bonnie Ferchak, Frank Oshinsky, Donald Schilacci, John Busato, Alvin Knox, Kenneth Busato, Michael Bateman, James Benson, Robert Leyland, Jay Hankins, Michael Toth, Peter Kiselich, Patrick Santone, John Houseman, Raymond Mamrak, Donald Kolenc, Cecil Allen, Amil Furar, Edward Raymond, Sherman Wood, Peter Penick, Fred Pryor, Ronald Olschon, Joe Stefanko, Paul Grott, Charles Zaken, Kenneth Polando, Luigi Filotei, Sylvester Ferenz, George Shivak, Leonard Backstrom, George Anderson, John Rymarowicz, Sabatino Neri, Jack Lindsey, Patrick McGhen, Paul Doenges, John Stefl, Joseph Andreoli, Al White, John Houseman, Gerald Nicholson, Nicholas Mitchell, Amil Furar, Sherman Woods, James Beere, Russell Backstrom, Jack Farlow, Albert Justick, William Walmsley, Henry Bateman, Edward Zukow, Mike Sidun, Walt Sroka, Joe Busato, Stanley Minkus, Clarence Bray, Ronald Novich, William Spoonhoward, John Wood, Frank Toth, Peter Liposchok, Nicholas Yackovich, Gerald McCann, Martin Flesik, Phillip Mikolay, Fred King, Joseph Hughes, Appellants, v. Herman BRAUNSTEIN and Stahl Gear Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1986.
    Filed May 21, 1986.

      Peter B. Skeel, Pittsburgh, for appellants.
    David F. Luvara, Pittsburgh, for appellees.
    Before BROSKY, OLSZEWSKI and POPOVICH, JJ.

       Popovich, J., recused himself following argument.

   OLSZEWSKI, Judge:

This matter comes before us on appeal from an order of the lower court sustaining appellees’ preliminary objections. On August 31, 1984, appellants filed a cause of action against appellees for breach of an oral agreement and/or tortious deceit. It is alleged that appellee Braunstein agreed to purchase the assets of McKeesport Steel Castings Company, in his own right or as an agent of appellee Stahl Gear Company, pursuant to Chapter 11 of the United States Bankruptcy Code. Appellants, former employees of McKeesport, allege that as part of the purchase order, appellees agreed to pay appellants’ wages from the accounts receivable generated by their labor. The sale was consummated on August 31, 1984, following the bankruptcy court’s approval of appellee’s purchase offer. Because Braunstein later refused to honor this obligation, appellants commenced an action alleging breach of an oral contract and tortious deceit, which formed the basis of this appeal. In response to a motion by appellee Braunstein, the lower court, Judge Farino presiding, dismissed the action claiming lack of subject matter jurisdiction. This Court also struck the complaint against appellee Stahl due to appellants’ failure of service of process on this party and deferred jurisdiction to the United States Bankruptcy Court for the Western District of Pennsylvania. Consequently, appellants now claim that although the proposed causes of action may be incidentally related to the bankruptcy proceedings, the lower court nevertheless should have decided these issues since they have “unlimited jurisdiction” under 42 Pa.C.S.A. Sec. 931(a). We disagree.

It is well settled that in enacting the statute giving federal district courts original, but not exclusive, jurisdiction to hear all civil proceedings arising under Title 11 of the Bankruptcy Act, Congress intended to grant broad jurisdiction to district courts to hear all litigation having any significant connection with the pending bankruptcy even if state law questions were involved. Ram Construction Company, Inc. v. Port Authority of Allegheny County, 49 B.R. 363 (D.C.Pa.1985). See 28 U.S.C. Sec. 1334(b) (1984). It is significant that, for purposes of federal court jurisdiction, the definition of a proceeding as “related to” a bankruptcy matter depends upon “the character of the claims asserted and the relationship of those claims to the bankruptcy proceeding, rather than with the status of the parties as debtors or creditors.” (Citations omitted.) Bobroff v. Continental Bank, 43 B.R. 746, 751, aff'd., 766 F.2d 797 (3rd Cir.1985).

After carefully reviewing appellants’ original complaint filed in the Court of Common Pleas of Allegheny County, we note that as part of the bankruptcy court proceedings, that court considered “appellees’ willingness to pay appellants’ wages from the accounts receivable generated by their labor” in approving appellees’ offer to purchase. (Count I, paragraph 10, p.2.) Since this agreement apparently affected the administration of the estate, we feel that the resolution of this matter properly belongs in the United States Bankruptcy Court for the Western District of Pennsylvania.

Order affirmed.

      . 28 U.S.C.A. Sec. 1334 provides:
      Bankruptcy cases and proceedings
      (a) Except as provided in subsection (b) of this section, the district court shall have original and exclusive jurisdiction of all cases under title 11.
      (b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.
      (c) (1) Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11.
      (2) Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. Any decision to abstain made under this subsection is not reviewable by appeal or otherwise. This subsection shall not be construed to limit the applicability of the stay provided for by section 362 of title 11, United States Code, as such section applies to an action affecting the property of the estate in bankruptcy.
      (d) The district court in which a case under title 11 is commenced or is pending shall have exclusive jurisdiction of all of the property, wherever located, of the debtor as of the commencement of such case, and of the estate.


author: WATKINS, Judge:

text:
    509 A.2d 407
    COMMONWEALTH of Pennsylvania v. Bernard CARTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 3, 1986.
    Filed May 19, 1986.

      David Mauro, Bellevue, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before WICKERSHAM, WATKINS and CERCONE, JJ.
   WATKINS, Judge:

This submitted case comes to us on appeal from the Judgment of Sentence entered on June 8, 1984, in the Court of Common Pleas of Allegheny County sentencing appellant to serve not less than five (5) nor more than ten (10) years of imprisonment.

On May 23, 1983, the appellant, Bernard Carter, was charged with one (1) count of robbery. Following a non-jury trial before the Honorable Quint Salmon appellant was found guilty of robbery on October 6, 1983. By appointed trial counsel, appellant filed Motion for New Trial and/or Arrest of Judgment, by leave of the court below, nunc pro tunc, on October 25, 1983. This motion was denied by Judge Salmon on May 22, 1984. On June 8, 1984, Judge Salmon sentenced appellant to a term of imprisonment of not less than five (5) nor more than ten (10) years. On June 21, 1984, appellant filed by mail his pro se Motion for Reconsideration of Sentence which was denied. A second pro se Motion for Reconsideration of Sentence was filed by appellant on June 28, 1984,

On August 25, 1984, the appellant requested that the Office of the Public Defender withdraw from his appeal because he wished to raise the issue of trial counsel’s ineffectiveness. (The Public Defender’s Office had filed a notice of appeal on July 6, 1984.) The Office of the Public Defender petitioned the court for permission to withdraw which was denied. On December 28, 1984, the Public Defender’s Office filed a Petition for Reconsideration of their withdrawal. A petition for review of the court’s decision was filed with the Pennsylvania Supreme Court which granted the relief sought on June 20, 1985. On July 30, 1985, this Court also granted appellant’s request to have the Public Defender’s Office withdraw its representation of appellant and remanded the case to the Court of Common Pleas of Allegheny County for the appointment of new counsel. This appeal followed.

Appellant presents the following questions for our consideration:

1. Was the Commonwealth’s evidence sufficient to sustain appellant’s conviction for robbery?

2. Was appellant denied effective assistance of trial counsel?

The court below has adequately addressed the first question presented on appeal. Accordingly we turn to appellant’s remaining question concerning the ineffectiveness of trial counsel. Appellant alleges several instances of trial counsel’s ineffectiveness. First, appellant contends that trial counsel was ineffective for failing to preserve pre-trial issues for review by including them in post-trial motions, specifically counsel failed to include the pre-trial motion to suppress appellant’s identification based on an alleged illegal and tainted photo array in post-trial motions.

In Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984), the Pennsylvania Supreme Court held that where it is clear that allegations of ineffectiveness of counsel are baseless or meritless, then an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed.

It is apparent upon review that appellant knowingly and willingly relinquished his right to preserve his pre-trial omnibus motion. In open court, in colloquy, appellant and his trial counsel testified as follows:

MR. RUDDY: ... your counsel has filed an omnibus pre-trial motions with regard to this case. Are you aware of that?
MR. CARTER: Yeah.
MR. RUDDY: Have you discussed that motion with your counsel, Mr. Sayles?
MR. CARTER: Yes.
MR. RUDDY: Now, is it your intention to withdraw that motion prior to this non-jury trial?
MR. CARTER: I do.
MR. RUDDY: You wish to withdraw it?
MR. CARTER: Yes.
MR. RUDDY: And that was with consulting with your attorney and with the advice of Mr. Sayles, is that correct?
MR. CARTER: My lawyer.
MR. RUDDY: I have nothing further.
MR. SAYLES: Your honor, at this time, I’d like to make a formal motion to withdraw the motion that I filed on
Mr. Carter’s behalf.

Appellant’s pre-trial motion requested that the court suppress the photo array on grounds that it was patently unfair and suggestive. The photographic array was consistent with the general description given by the eyewitnesses and was in no way “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Commonwealth v. Harvey, 231 Pa. Superior Ct. 86, 90, 331 A.2d 915, 917 (1974). Therefore, we conclude that appellant’s motion to suppress the evidence was without merit and counsel cannot be deemed ineffective for failure to raise frivolous claims.

Appellant also asserts that trial counsel was ineffective for failing to devote adequate time to prepare appellant’s defense, for failing to consult with appellant concerning his defense, for failing to show due diligence in contacting defense witnesses, and by insisting that appellant waive his right to a jury trial.

Counsel who is alleging ineffectiveness must set forth an offer to prove ... sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. The court will no longer consider claims of ineffective assistance of counsel in the abstract. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). Appellant’s allegations of ineffectiveness as presented are either unsubstantiated or completely abstract. Absent any showing that appellant’s defense was prejudiced by his counsel’s conduct, these abstract claims have no cognizable merit. Commonwealth v. Laurenson, 323 Pa. Superior Ct. 46, 470 A.2d 122 (1983).

Finally, appellant contends that trial counsel was ineffective for agreeing with the Commonwealth that a Mandatory Minimum Sentence under 42 Pa.C.S.A. § 9714 applied to appellant because of appellant’s prior felony conviction for robbery.

The Commonwealth concedes that the factual circumstances of appellant’s case precluded application of the provision of the Mandatory Sentencing Act, Title 42 § 9714, at the Sentencing Hearing of June 8, 1984.

Section 9714(b)(2) states that the previous conviction must have occurred within seven years of the date of the commission of the instant offense. The offense here occurred in October, 1982, eight years after the 1974 robbery conviction.

Considering the foregoing, we will vacate the sentence and remand for resentencing.

Sentence vacated and remanded for resentencing.


author: ROWLEY, Judge: BROSKY, Judge,

text:
    509 A.2d 409
    COMMONWEALTH of Pennsylvania v. John WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 6, 1985.
    Filed Feb. 27, 1986.
    Reargument Denied May 12, 1986.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BROSKY, ROWLEY and OLSZEWSKI, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from the judgment of sentence entered following appellant’s guilty plea to robbery [18 Pa.C.S. § 3701(a)(l)(ii) ], carrying firearms on public streets or public property in Philadelphia [18 Pa.C.S. § 6108], and possession of an instrument of crime [18 Pa.C.S. § 907(a) ]. Appellant was sentenced to 5V4 years to 20 years imprisonment on the robbery charge. The 5V4 year minimum sentence included 24 months pursuant to the deadly weapons enhancement provision of the Sentencing Guidelines. [204 Pa.Code § 303.4]. A consecutive term of 1-2 years imprisonment for possession of an instrument of crime and another consecutive term of 1-2 years imprisonment for carrying firearms on public streets or public property in Philadelphia were also imposed.

Appellant raises two issues on appeal: 1) that the court erred by imposing any sentence for carrying firearms on public streets or public property in Philadelphia because that crime merged with either the crime of robbery or the possession of an instrument of crime; and 2) that the court erred by imposing two consecutive sentences for robbery and possession of implements of crime because, once the court added a 24 month period of incarceration to his robbery sentence pursuant to the weapons enhancement provision, the other offenses involving the same weapon and the same facts merged with the robbery. We affirm.

In Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985), an en banc panel of this Court reassessed the common law doctrine of merger. The Court stated that

[i]n order to find that separate statutory offenses merge, we must ... determine not only that the crimes arose out of the same criminal act, transaction, or episode, but also that the statutes defining the crimes charged were directed to substantially the same harm or evil____ Obviously if a defendant has committed several discrete criminal acts, he may then be punished separately for each of them despite their close relationship in a single criminal episode, as long as each act is a separate injury in itself.

Id., 344 Pa.Superior Ct. at 126-28, 496 A.2d at 41-42. If the crimes involve separate criminal acts, the first element of the merger test is not satisfied and the crimes do not merge. “Even if the defendant’s criminal conduct consists of a single physical act, however, the merger doctrine does not bar separate punishments if there are substantially different interests of the Commonwealth at stake, and the defendant’s act has injured each interest.” Id., 344 Pa.Superior Ct. at 127-29, 496 A.2d at 42. Thus, application of the merger doctrine is a two step process. First, the court must determine whether more than one discrete criminal act is involved. Secondly, if the defendant committed only one criminal act, the court must then determine whether the Commonwealth had only one interest that was injured by the single criminal act. If more than one Commonwealth interest was injured, the doctrine of merger does not apply.

Determining the Commonwealth’s interest which is at stake requires an assessment of the legislative intent in enacting the several statutes defining the crimes of which the defendant has been convicted. This can be accomplished by an analysis of the elements which the legislature has mandated essential to each of the crimes, as well as a consideration of the nature of the harm to which the statutes are directed.

The legislature has the exclusive power not only to define criminal offenses in order to protect the Commonwealth, but also to determine the punishment to be imposed for those offenses. See Williams, Id., and cases cited therein, 344 Pa.Superior Ct. at 126-27, 496 A.2d at 41. Therefore, under the common law merger doctrine, if the legislature has authorized duplicitous punishment, sentencing for only one criminal act but under two separate statutory provisions is proper and forecloses the applicability of the merger doctrine.

The weapons enhancement provision is not a legislative definition of a criminal offense but is a legislative determination of punishment to be imposed following convictions for certain crimes. The provision prescribes no criminal conduct and does not make the use of a weapon in the commission of certain crimes, including robbery, an element of the crime, but serves only to define the minimum punishment to be imposed when certain crimes are committed. Therefore, it is a legitimate exercise of legislative authority. Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985); see also Commonwealth v. Cannon, 508 Pa. 22, 493 A.2d 1356 (1985); Commonwealth v. Woods, 508 Pa. 294, 495 A.2d 539 (1985); 42 Pa.C.S. § 9712(b). No merger problem arises when the weapons enhancement provision is applied because it is not a second or separate punishment from that imposed for the underlying offense. It is solely a legislative mandate for a minimum sentence for the underlying offense.

In the case before us, appellant entered a bar and ordered a beer. He then pulled a gun, announced a hold up, and demanded money from the barmaid. The barmaid placed the money from the register onto the counter. Appellant ordered the barmaid and a patron at gunpoint into the bathroom. After a few moments, the barmaid came out of the bathroom, saw that the money and appellant were gone, and telephoned the police. Police spotted appellant on the street a few blocks from the bar 45 minutes after the robbery with a gun in his possession. The criminal act giving rise to the charges of (1) robbery, and (2) possession of an instrument of crime was the commission of the robbery with the gun in the bar. The criminal act for which appellant was charged with carrying firearms on public streets or public property in Philadelphia was his possession of the gun while on the public streets in Philadelphia some 45 minutes after completing the robbery in the bar. These facts establish that there were two separate and discrete criminal acts. The former, in the bar, gave rise to two charges: robbery and possession of an instrument of crime. The latter gave rise to one charge: carrying firearms on a public street in Philadelphia. Thus, the charge of carrying a firearm in Philadelphia does not merge with either of the other two charges. Therefore, there is no merit to appellant’s first issue.

The robbery and possession of implements of a crime charges, although based on the same criminal act, do not merge because the statutes defining each charge were adopted to protect different interests of the Commonwealth. The essential elements of robbery (as charged here) are that a theft be committed and that there be a threat of imminent serious bodily injury. [18 Pa.C.S. § 3701(a)(1)(h)]. Thus, the harm against which the statute protects is the deprivation of property by threatened or actual physical harm which may not involve any instrument of crime. The possession of implements of a crime charge, however, requires the possession of certain objects whose primary use is the commission of a crime and the intent to commit such a crime. By including these elements in the crime, the legislature has indicated that the statute was enacted to protect against the threat that one who possesses certain objects will use them to commit a crime. See Commonwealth v. Crocker, 256 Pa.Super. 63, 389 A.2d 601 (1978). The Commonwealth’s interest in the right of citizens to be free from the threat that an implement of crime will be used to accomplish a crime is separate from the Commonwealth’s interest in protecting individuals from having their property rights jeopardized while being threatened with serious bodily injury. Because the elements of robbery and possessing instruments of crime are different and because the harm to which the statutes defining these crimes is different, we hold that they do not merge. See Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982) (judgments of sentence for robbery and possession of implements of crime affirmed).

Judgment of sentence affirmed.

BROSKY, J., files a concurring and dissenting statement.

BROSKY, Judge,

concurring and dissenting:

I fully agree with the majority’s discussion and disposition of appellant’s first issue. I find merit, however, in appellant’s second argument, and I would therefore vacate the sentence for possession of an instrument of crime.

I agree with the majority’s statement that “the harm against which the statute protects is the deprivation of property by threatened or actual physical harm which may not involve any instrument of crime;” however, in the case before us, the “threatened or actual physical harm” did in fact involve the possession of an instrument of crime, and the two crimes therefore should merge for sentencing purposes. Commonwealth v. Williams, 344 Pa.Super. 108, 133-35, 496 A.2d 31, 45 (1985).

      . Appellant does not assert that the separate sentences violate the Double Jeopardy Clause of the Pennsylvania or United States Constitution.

      . Although the majority cites Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982), for the proposition that these crimes do not merge, Walls did not discuss or decide the merger issue now before us.


text:
    509 A.2d 413
    COMMONWEALTH of Pennsylvania, Appellee, v. Ronald ROMESBURG, Appellant.
    Superior Court of Pennsylvania.
    Argued March 24, 1986.
    Filed May 19, 1986.

      Vicki K. Horne, Greensburg, for appellant.
    Edward M. Clark, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

The major issue raised in this direct appeal from a judgment of sentence imposed for driving while under the influence of alcohol is whether the Commonwealth’s use of the results of field sobriety tests violated the guarantee against self-incrimination contained in Article I, Section 9 of the Pennsylvania Constitution. Appellant also challenges (1) the relevance of the results of a blood test taken two hours after arrest and (2) the Commonwealth’s right to use the test results where the sample of his blood had been destroyed and was not available for independent testing. We affirm.

At or about 7:19 p.m. on February 14, 1984, Ronald Romesburg was stopped by an officer of the Tri-Area Joint Police Department on Route 19 North in northern Allegheny County after his car had been observed weaving back and forth between highway and berm. The officer smelled and noted a moderate odor of alcohol from appellant’s breath. Romesburg’s speech was slurred, and his eyes were bloodshot. He was asked to perform several field sobriety tests, which he was not able to perform adequately. Therefore, appellant was placed under arrest and taken to the Franklin Park Police Station. There a breathalyzer test was administered. When the breathalyzer malfunctioned, appellant was taken to Passavant Hospital where, at 9:22 p.m., a sample of his blood was drawn. An analysis of the blood sample established that appellant’s blood alcohol concentration was .34 percent. There was also testimony that appellant had eaten breakfast (his only meal of the day) at 6:45 a.m. on February 14th, had drunk a beer about 1:00 p.m., and had been drinking after work at a local pub between 6:00 and 7:00 p.m. He left the pub about 7:00 p.m. Appellant was tried without jury and was found guilty of driving while under the influence of alcohol. A motion for a new trial was denied, and appellant was sentenced to forty-eight hours imprisonment and probation for two years less two days; appellant was also ordered to pay various fines and costs.

The fifth amendment of the United States Constitution provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself....” (emphasis added). This protection, it has been held, precludes self-incrimination only by the use of testimonial evidence. See: United States v. Wade, 388 U.S. 218, 221-223, 87 S.Ct. 1926, 1929-1930, 18 L.Ed.2d 1149, 1154-1155 (1967); Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908, 914 (1966). Article I, section 9 of the Pennsylvania Constitution, by way of contrast, provides that “[i]n all criminal prosecutions, the accused ... cannot be compelled to give evidence against himself....” (emphasis added). Appellant argues that the protection guaranteed by Article I, section 9 of the Pennsylvania Constitution is broader than the federal guarantee and includes, in addition to testimonial communications, non-testimonial evidence as well.

While it is true that the guarantees provided by our state constitution may provide greater protection than the guarantees of the federal constitution, Commonwealth v. Sell, 504 Pa. 46, 63-64, 470 A.2d 457, 466-467 (1983); Commonwealth v. Tate, 495 Pa. 158, 169-170, 432 A.2d 1382, 1387-1388 (1981), the appellate courts of Pennsylvania have consistently held that the protections against self-incrimination afforded by the two constitutions are identical. See,, e.g., Commonwealth v. Hawthorne, 428 Pa. 260, 262-263, 236 A.2d 519, 520 (1968); Commonwealth v. Carrera, 424 Pa. 551, 553, 227 A.2d 627, 629 (1967); Commonwealth v. Fernandez, 333 Pa.Super. 279, 284, 482 A.2d 567, 569 (1984); Commonwealth v. Webster, 323 Pa.Super. 164, 172, 470 A.2d 532, 536 (1983) (collecting cases). Both state and federal proscriptions “have consistently been held to exclude only evidence which is testimonial in nature. Testimonial evidence is communicative evidence as distinguished from demonstrative or physical evidence.” Commonwealth v. Fernandez, supra (citations omitted). The privilege protects an accused from the use of physical or moral compulsion to extract communications, Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 6, 54 L.Ed. 1021, 1030 (1910), either in the form of testimony, writing, or other communicative act. Schmerber v. California, supra 384 U.S. at 765, 86 S.Ct. at 1833, 16 L.Ed.2d at 916-917. “Limiting the privilege to testimonial activity ... serve[s] to apply it to those situations where the compulsion is most likely to be excessive or abused and where it is most likely to result in obtaining unreliable evidence.” McCormick on Evidence, § 124, at 304 (3rd ed. 1984).

Field sobriety tests do not elicit testimonial or communicative evidence and, thus, do not trigger fifth amendment protection. They

are not intended to reveal any thoughts or knowledge of the subject. Other courts have observed that such tests are based upon the relationship between intoxication and the loss of coordination which intoxication produces. They do not compel the subject to reveal his knowledge or thoughts. They only force him to exhibit his physical coordination, or lack thereof, for observation by a police officer. People v. Ramirez, [199 Colo. 367] 609 P.2d 616, 620, 621 (Colo. 1980). Wahpeton v. Skoog, 300 N.W.2d 243, 245 (N.D.1980). State v. Arsenault, 115 N.H. 109, 113, 336 A.2d 244 (1975).

Commonwealth v. Brennan, 386 Mass. 772, 779, 438 N.E.2d 60, 65 (1982).

In Commonwealth v. Moss, 233 Pa.Super. 541, 545, 334 A.2d 777, 779-780 (1975), this Court held that a defendant was not compelled to communicate protected knowledge in violation of Article I, section 9 by being required to produce a handwriting exemplar. In concluding that the defendant was not required to give evidence against herself, this Court implicitly held that the state constitutional privilege was identical to the safeguard of the federal constitution and had application only to testimonial compulsion. See also: Olson v. State, 484 S.W.2d 756 (Tex.Crim.App.1972). In Commonwealth v. Fernandez, supra 333 Pa.Super. at 285, 482 A.2d at 570, this Court also held that compelling a defendant to shave his beard did not compel him to give evidence against himself. Requiring the defendant to shave his beard did not compel him to communicate protected knowledge, nor was it a use of “ ‘physical or moral compulsion to extort communications form him[.]’ ” Id., 333 Pa. Superior Ct. at 284, 482 A.2d at 569, quoting Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 6, 54 L.Ed. 1021, 1030 (1910). Instead, “the order served the interests of justice in obtaining demonstrative evidence of appellant’s appearance, at the time of the murders, for the jury as finder of fact.” Commonwealth v. Fernandez, supra 333 Pa.Super. at 285, 482 A.2d at 569-570 (footnote omitted).

The Supreme Judicial Court of Massachusetts was faced with a similar contention in Commonwealth v. Brennan, supra, where the defendant asserted that Article 12 of the Massachusetts Constitution (providing in part that no person shall “be compelled to accuse, or furnish evidence against himself”) precluded the use of the results of field sobriety tests. There the Court held:

It has been said that art. 12 and the many similar constitutional provisions of other States merely restated the common law rule against self-incrimination. Commonwealth v. Joyce, 326 Mass. 751, 756-757, 97 N.E.2d 192 (1951). Brown v. Walker, 161 U.S. 591, 596-597, 16 S.Ct. 644, 646-647, 40 L.Ed. 819 (1896). See generally 8 J. Wigmore, Evidence §§ 2250, 2251 (McNaughton rev. ed. 1961); Pittman, The Colonial and Constitutional History of the Privilege against Self-Incrimination in America, 21 Va.L.Rev. 763 (1935). The common law privilege evolved from general disapproval of the inquisitorial practices that existed prior to 1700 in the ecclesiastical courts and the courts of Star Chamber and High Commission in England. See E. Dumbauld, The Bill of Rights, and What It Means Today 77 (1957). 8 J. Wigmore, supra. McCormick, Evidence § 114 (Cleary ed. 1972). Even a cursory review of the history of the privilege leaves little doubt that the privilege was directed toward the forced extraction of confessions and admissions from the lips of the accused. This suggests that the framers of our Declaration of Rights did not contemplate that art. 12 apply to real or physical evidence, the production of which would have no inherently communicative value.
This is in accord with the majority of other States that have considered the question, many of which have constitutional provisions similar to ours. 8 J. Wigmore, supra at § 2265. We believe it represents the sounder view. While it is true that some of the policies that underlie the privilege might warrant its application to a broader class of cases than ordinarily falls within its reach, “the privilege has never been given the full scope which the values it helps to protect suggest.” Schmerber v. California, 384 U.S. 757, 762, 86 S.Ct. 1826, 1831, 16 L.Ed.2d 908 (1966). The refusal of most courts to adopt an expansive interpretation of the privilege has undoubtedly stemmed in part from a concern for the severe constraints on law enforcement practices that would otherwise result, and from the fact that compelled production of physical evidence is far less offensive to common standards of decency. We conclude that art. 12 of the Declaration of Rights applies only to evidence of a testimonial or communicative nature, and that neither a breathalyzer test nor field sobriety tests are communicative to the extent necessary to evoke the privilege.

Id. at 780, 782, 438 N.E.2d at 65-67 (footnotes omitted).

We agree with the Massachusetts Court and hold that the privilege against self-incrimination found in Article I, section 9 of the Pennsylvania Constitution does not preclude evidence of the results of field sobriety tests administered to citizens believed by the police to be under the influence of alcohol. Article I, section 9 protects only testimonial evidence. Field sobriety tests are neither testimonial in nature nor do they extract or communicate protected knowledge or thoughts. Field sobriety tests merely require a driver to exhibit his or her physical coordination. The policy which supports the privilege against self-incrimination — governmental respect for the dignity and integrity of its citizens — is not offended by this holding. The intoxicated driver subjected to field sobriety tests does not have extracted from his or her lips an unwilling confession; he or she is not subjected to compulsory oral examination. Therefore, we affirm the admission of the field sobriety test results by the trial court.

“Whether the time intervening between [arrest] and withdrawal of blood was so great as to render the results inadmissible on grounds of relevancy required the exercise of discretion by the trial court.” Commonwealth v. Kostra, 349 Pa.Super. 89, 99, 502 A.2d 1287, 1292 (1985). We perceive no abuse of that discretion here. Although the blood sample was not taken until more than two hours after appellant had been stopped, the test result of .34 percent was clearly relevant to the issue of whether appellant was under the influence of alcohol while driving a vehicle. “So long as a blood test is indicative of a defendant’s condition at a relevant time, it is admissible and subject to attack or contradiction by other competent evidence.” Commonwealth v. Arizini, 277 Pa.Super. 27, 41, 419 A.2d 643, 650 (1980). The delay between the operation of the motor vehicle and the drawing of the blood went only to the weight of the evidence, not its admissibility. Commonwealth v. Tylwalk, 258 Pa.Super. 506, 510, 393 A.2d 473, 475 (1978). This evidence could be considered by the trier of fact along with evidence that appellant had driven erratically, had had an odor of alcohol about him, had spoken with slurred speech, had exhibited bloodshot eyes, and had poorly performed the field sobriety tests. See and compare: Commonwealth v. Kosira, supra (test results taken two hours after operation of a motor vehicle relevant); Commonwealth v. Arizini, supra (same); Commonwealth v. Tylwalk, supra (one and one-half hours); Commonwealth v. Trefry, 249 Pa.Super. 117, 375 A.2d 786 (1977) (four and one-half hours), overruled on other grounds, Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983), reversed, Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). See also: Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986) (Commonwealth not required to offer evidence relating a blood alcohol test result back to time of vehicular offense; absence of expert testimony relating back a later test result does not render test result insufficient evidence upon which to convict a defendant of violating 75 Pa.C.S.A. § 3731(a)(4)).

The alleged inadmissibility of the results of the blood test because of the Commonwealth’s failure to preserve a portion of the blood sample for independent testing has been waived. Pa.R.Crim.P. 323(b) requires, in pertinent part, that a motion to suppress evidence shall be included in an omnibus pre-trial motion. Rule 332(b) further provides that “[i]f timely motion is not made hereunder, the issue of suppression of such evidence shall be deemed to be waived.” Appellant’s omnibus pre-trial motion attacked the admissibility of the results of the blood test on grounds that no expert witness could establish the blood alcohol level with reasonable certainty at the time of arrest. The motion also attacked the admissibility of the field sobriety tests. The motion contained no reference to an alleged failure by the Commonwealth to preserve a portion of the blood sample for independent testing. The issue, therefore, has been waived, and we need not address the merits of appellant’s contention that the Commonwealth’s failure to preserve some of his blood sample for independent testing purposes denied him due process. See: Commonwealth v. Lore, 338 Pa.Super. 42, 54 n. 8, 487 A.2d 841, 847-848 n. 8 (1984). Appellant also did not make a contemporaneous objection on this ground at trial. See generally: Commonwealth v. Hassine, 340 Pa.Super. 318, 343, 490 A.2d 438, 451 (1985) (failure to object to alleged prejudicial remarks made during unrecorded summation renders issue waived); Commonwealth v. Artis, 294 Pa.Super. 276, 281, 439 A.2d 1199, 1201 (1982) (failure to object to recitation of wrong bill of information renders issue waived); Commonwealth v. Smith, 280 Pa.Super. 226, 228, 421 A.2d 695, 695 (1980) (failure to object to trial court’s exclusion of spectators at trial renders issue waived).

Our consideration of the issues raised by appellant and our careful review of the record suggest no basis for interfering with the findings of the trial court.

The judgment of sentence is affirmed.


author: WATKINS, Judge: CAVANAUGH, Judge,

text:
    509 A.2d 417
    Harlin TACKETT, Appellee, v. Marie TACKETT, Appellant, Trustee, Stewart Barmen.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed May 19, 1986.

      Michael I. Markowitz, Pittsburgh, for appellant.
    Diana F. Wilkins, Pittsburgh, for appellee.
    Before CAVANAUGH, BROSKY and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from an Order entered March 5, 1984 in the Court of Common Pleas of Allegheny County dismissing appellant’s exceptions and adopting a Decree Nisi as a final decree.

On September 25, 1979, appellee Harlin Tackett commenced an action in equity for the partition of real estate of a former husband and wife. Appellant-wife and appelleehusband were divorced pursuant to a divorce decree entered March 20, 1978. On September 5, 1980, the court below entered an order appointing a Trustee for the purpose of partition of the parties’ marital residence. The court below ordered the sale of the property upon the Trustee’s recommendation on May 7, 1982. Upon failure of the Trustee to conduct a private sale confined to the parties, the court below entered an Order on August 18, 1982, authorizing the Trustee to conduct a private sale not confined to the parties. By an order dated August 4, 1983, the sale of the property by the Trustee for the total price of $55,000.00 was approved. On January 30, 1984, the lower court entered a Decree Nisi approving the Trustee’s Return of Sale and distributing proceeds of the sale in accordance with the Trustee’s recommendations. On February 9, 1984, appellant-wife filed a Motion for Post-Trial Relief. On March 5, 1984, the court below entered an Order dismissing the exceptions of appellant and adopting and entering the Decree Nisi as the Final Decree. Timely appeal to this Court followed.

Appellant presents the following questions for our consideration: (1) Did the court below err in allowing appellee’s claim for reimbursement for his costs of improving the marital residence? (2) Did the court below err when it allowed the deduction of an amount paid to satisfy a judgment against the appellant from the appellant’s share of the proceeds of the partition sale even though a Decree of Divorce was not recorded in accordance with Pa.Stat.Ann. tit. 68 § 503 (Purdon 1984-1985)? (3) Did the court below err in failing to include certain court costs and interest in the sum to be paid to the appellant in satisfaction of a judgment held against the appellee?

The court below has adequately disposed of the first and second questions presented on appeal. Accordingly, we turn to the remaining question.

Appellant contends in her third issue that the court below erred in approving the Trustee’s determination regarding the amount to be paid in satisfaction of a judgment against appellee held by appellant. The sum which the trustee decided should be paid did not include court costs outstanding from the underlying action (including the cost of a satisfaction of judgment certificate which appellant was required to secure by the terms of the trustee’s “return of sale and schedule of distribution”). Additionally, appellant opposes the trustee’s determination that no interest be paid on the amount of the judgment outstanding to her after November 30, 1983.

The court below recognized and we agree that denial of those costs was improper in light of the clear instruction of the statute (68 P.S.A. Section 503) to include costs when determining the amount to be deducted from the share of a party against whom a lien has been filed.

Regarding the interest, the judgment against appellee and in favor of appellant was based on a Decree Nisi in the amount of $2,297.00 entered in the Court of Common Pleas of Allegheny County on December 17, 1979. However, a judgment in favor of appellant and against appellee in the amount of $3,026.94 was entered upon revival of the Decree Nisi on April 3, 1985. Appellee submits that appellant is only entitled to that interest which accrued prior to the funds being deposited in the escrow account as the escrow account is an interest bearing account.

The statute (68 Pa.S.A. § 503) provides that interest shall be paid, however, Section 503 does not mandate that interest shall be paid twice. Therefore, we cannot conclude that the trial court erred in approving the trustee’s decision not to permit the interest.

Considering the foregoing we reverse and remand that portion of the trial court’s order denying appellant’s costs with instructions to deduct those costs from appellee’s share. As to the remaining questions, we affirmed the trial court’s order.

Affirmed in part; reversed in part and remanded in accordance with this opinion. Jurisdiction relinquished.

CAVANAUGH, J., files a concurring opinion.

CAVANAUGH, Judge,

concurring:

I join Judge Watkins’ opinion in the above-captioned case but write only to state my understanding that we are remanding here only because the lower court never entered an order awarding court costs outstanding from the underlying action in accordance with 68 Pa.S. § 503.


author: CERCONE, President Judge:

text:
    509 A.2d 419
    Paul G. ESTEP, Appellant, v. Thelma R. (Sharp) ESTEP.
    Superior Court of Pennsylvania.
    Submitted June 7, 1983.
    Filed May 20, 1986.

      Joseph F. Cassarino, Greenburg, for appellant.
    P. Louis DeRose, III, Greensburg, for appellee.
    Before CERCONE, President Judge, and SAPETH  and HESTER, JJ.

       This case was decided after Judge Spaeth left the bench.

   CERCONE, President Judge:

In the initial appeal of this case from an order of equitable distribution and divorce, pursuant to the Divorce Code of 1980, 23 P.S. § 101, et seq., we affirmed four of the findings of the Master, which had been adopted by the lower court. Estep v. Estep, 326 Pa.Superior Ct. 404, 474 A.2d 302 (1984). Two of appellant, Paul G. Estep’s, contentions concerning the real estate which was owned by the parties and the proceeds from a Merrill-Lynch stock account, were held not to be marital property by this court, reversing that part of the lower court’s equitable distribution order. The Pennsylvania Supreme Court granted Thelma R. (Sharp) Estep’s petition for allowance of appeal and reversed that part of this court’s decision concerning the real estate and the Merrill-Lynch account. This case is before us now on remand from the Supreme Court for the consideration of “any other remaining issues not previously considered.” Estep v. Estep, 508 Pa. 623, 500 A.2d 418 (1985).

Initially, we adopt the analysis and disposition of our former opinion in this case as to appellant’s claims involving the money given to appellant by his mother, the amount of insurance possessed by appellant, the money contained in the joint safety deposit box, and the valuation which was placed on the real estate by the lower court. Estep v. Estep, supra. The issues which are before us now for review are whether the distribution of the real estate by the Master was in error in that it should have reflected a substantially greater claim of interest in the property by the appellant than by appellee; and also, whether appellant should have been awarded the entire amount, or at least a greater share, in the Merrill-Lynch account owing to his exclusive contribution to it.

The lower court, adopting the recommendations of the Master, concluded that the real estate should be divided equally, based on equivalent contributions of the parties. The court premised its decision on several factors (1) cash contributions to construction of a home of husband and wife of $10,000 and $8,000, respectively; (2) the value of the husband’s work and labor on the home and his limited financial support of the parties throughout construction (3) the wife’s primary responsibility for the parties’ daily living expenses during the approximately eight month period of construction; (4) and the wife’s non-monetary contribution as both a construction-helper and homemaker. As for the Merrill-Lynch account, the court ordered the withdrawal of the monies in it, and the application of the fund to satisfy the mortgage on the home, with the balance to be divided equally.

We reiterate that equitable distribution is within the discretion of the trial court and its decision will not be disturbed absent an abuse of that discretion. Gee v. Gee, 314 Pa.Superior Ct. 31, 460 A.2d 358 (1983).

Under this standard, we do not usurp the hearing court’s duty as fact finder. Rather we apply the legislative guidelines of the Divorce Code to the record to determine whether or not the hearing court has abused its discretion. Barnhart v. Barnhart, 343 Pa.Superior Ct. 234, 237, 494 A.2d 443, 444 (1985).

The applicable guidelines which are relevant to our review include:

(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training, or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party at the time the division of property is to become effective.

Divorce Code, 23 P.S. § 401(d).

Appellant testified he contributed the land upon which the marital home was constructed for which he paid $3,750.00. Moreover, appellant also bases his contention that the equitable distribution of the real estate should reflect his greater contribution to the development of the property in spending all his working hours from March to September, 1978, constructing the home in question. Appellee’s claim is based on her contributions as established at the hearing on February 19, 1981. Therein it was established that she contributed $8,000.00 in cash toward the construction of the house, while appellant contributed $10,-000.00. In addition to earning $1,000.00 per month at a full time job with which she paid the parties’ living expenses, including apartment rental, utilities and food, appellee also contributed her services as a homemaker. She also helped out with some of the construction work on the home, namely painting and varnishing and assisting in the installation of insulation. Thus, the court, in adopting the findings of the Master as supported by the hearing testimony, concluded that an equal distribution of the real estate was fair and justifiable. We find no abuse of discretion in the equivalent distribution.

As to the equal distribution of the Merrill-Lynch account, the Master ordered the withdrawal of the fund from the account, which was in excess of $6,000.00 to be applied to the remaining amount of the outstanding mortgage on the property, with the remaining balance to be divided by the parties. Appellant’s contention regarding this account is that $2,500.00 was contributed to it from his sale of a piece of property which he held prior to his marriage to appellee, and that the remaining $3,500.00 was the result of carpentry work which he performed on other jobs during the marriage. He claims that he should receive some credit for his contributions pursuant to § 401(d)(7) of the Divorce Code, supra, and that the lower court abused its discretion in dividing the account as it did.

The Pennsylvania Supreme Court has already decided the nature of the proceeds in the Merrill-Lynch account as being marital. The Court referred to the husband’s testimony at the hearing as indicating that he considered the account as jointly owned. Therefore, we shall decide whether the lower court acted properly within its discretion in adopting the disposition of the account prescribed by the Master. Despite the origin of these funds, the lower court reasoned, in dividing them equally between the parties, that it must be borne in mind that appellee-wife’s support as homemaker and as full-time wage-earner made it possible for the parties to be able to invest the $6,000.00 amount, in lieu of its use in day to day living. The lower court did not abuse its discretion by this division and its discussion indicates that it did consider the respective contributions and rights of the parties.

Therefore, for the aforementioned reasons, the order is affirmed.


text:
    509 A.2d 422
    Donald L. SCHIMP, Executor of the Estate of Jacob L. Schimp and Donald L. Schimp, Appellant, v. Wayne L. ALLAMAN.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed May 21, 1986.

      Joseph J. Liotta, III, Franklin, for appellant.
    Ralph L.S. Montana, Clarion, for appellee.
    Before CAVANAUGH, BROSKY and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from an Order entered January 23,1985, in the court of Common Pleas of Clarion County dismissing appellants’ action to quiet title and confirming title to the land in appellee.

This action began when the appellants filed a complaint in Action to Quiet Title. The appellants alleged that Donald L. Schimp was the record title owner of a certain parcel of land located in Elk Township, Clarion County, Pennsylvania, and that he and his ancestors-predecessors in title — were and had been in possession of the property and that the defendant-appellee, Wayne L. Allaman, disputed the title of a portion of the parcel. The complaint prayed for an order of court compelling the defendant to commence an action of ejectment within thirty (30) days as set forth in Pa.R.Civil Pro. 1066(b)(1). The lower court entered a Rule to Show Cause Why appellee should not be compelled to file an action of ejectment. Hearings were held thereon.

The court below entered the following order: “After hearing on this matter and considering the testimony and arguments of counsel, the court finds in favor of the Defendant, dismisses Plaintiffs action and confirms title to the land in question in Defendant.”

The questions raised on appeal are summarized as follows:

1. Did the court below err in entering an order on the merits?

2. Did the court below err in failing to order the appellee to bring an action of ejectment?

At the outset, we will address the appellee’s contention that this appeal is not properly before this Court. We find that the order of the court below was a final order and appealable. Seven Springs Farm Inc. v. King, 235 Pa.Superior Ct. 450, 344 A.2d 641 (1975); Spangler v. Trogler, 228 Pa. 217, 77 A. 495 (1910).

The court below made no findings of fact, no conclusions of law, nor did he write an opinion and clearly the plaintiff, by the order, was out of court. The order was entirely too broad and does indeed decide the merits as if it were an action in ejectment. This is not before the court as under the rules it has before it the narrow jurisdiction question of whether or not there has been a showing that the plaintiff-appellant is the possessor of the premises and whether title is in dispute.

In Seven Springs Farm, Inc. v. King, supra, this Court held that under the Act of March 8, 1889, P.L. 10, § 1, as amended, 12 P.S. § 1543, a possessor of land is entitled to bring an action against one, who although not in possession, has some claim or interest in the land, compelling that person to assert his interest by bringing an action of ejectment.

“Although the provisions of the Act of March 8, 1899, supra, were suspended as to practice and procedure by Pa.R.Civil P. 1455 and superseded in that respect by Pa.R. Civil P. 1061-66, the substantive requirements of the act continue to remain in force.”

In order to prevail under the Act, it is necessary to prove that the plaintiff is in possession, that the defendant is out of possession, and there is a dispute as to title.

Voluminous testimony was taken which reveals that this case is similar to Spangler v. Trogler, supra, where the Supreme Court held: “This testimony is very voluminous and much of it was perhaps not relevant to the particular controversy involved in this Rule, for the reason that this is not a trial of an Action of Ejectment but simply a proceeding to determine whether or not the Court has jurisdiction under the facts to compel the Defendant to bring his action.”

The order of the court below is reversed and the case remanded for the court below to determine under the rules whether the plaintiff-appellant is in possession, whether a dispute as to title exists, and whether an order should be issued on the defendant-appellant compelling him to file an action in ejectment.

Jurisdiction is relinquished.

CAVANAUGH, J., concurs in the result.


author: POPOVICH, Judge:

text:
    509 A.2d 424
    Theresa ERKENS and John Erkens, her husband, Appellants, v. C. Nicholas TREDENNICK, M.D.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1986.
    Filed May 22, 1986.

      Leonard E. Price, Pittsburgh, for appellants.
    John W. Jordan, IV, Pittsburgh, for appellee.
    Before BROSKY, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment entered in favor of appellee, C. Nicholas Tredennick, M.D. We affirm.

Appellants, Theresa and John Erkens, instituted a medical malpractice action against appellee for damages sustained when Theresa Erkens suffered from an infection in her right eye and, thereafter, had permanent vision loss in that eye. Following a jury trial, a verdict was entered on behalf of appellee. A timely motion for post-trial relief was filed and denied. Judgment was then entered, and this appeal followed.

Six issues are raised by appellants: (1) the trial court erred in denying a motion in regard to the composition and questioning of the jury panel; (2) the trial court erred in automatically bifurcating the liability and damage issues; (3) the trial court erred by not striking the testimony of Dr. Swan; (4) the trial court erred in not entering judgment n.o.v.; (5) the trial court erred in not ordering a new trial; and, (6) the trial court erred in holding post-trial arguments prior to receipt of the transcript.

The first issue raised concerns whether it was error for the trial court to refuse to challenge' for cause four potential jurors who indicated a relationship with appellee. The record reveals that the prospective jurors were asked whether they or members of their immediate families had been professionally attended by appellee. Four answered in the affirmative, at which time, each was individually questioned if this, would prevent him or her from rendering a true and impartial verdict based solely on the evidence. Each of the four replied it would not, and two of these individuals did serve on the jury. Appellants contend the physician/patient relationship is a situational relationship which requires the trial court to presume the likeliness of prejudice. We, however, are unable to reach this issue because it has not been properly preserved for our review.

We are constrained to agree with appellee that although appellant did object to patients of one Dr. Wick serving as jurors, appellant made no record objection regarding patients of appellee. The following is the entire discussion of this issue contained in the transcript:

THE COURT: This is Theresa Erkens and John Erkens versus C. Nicholas Tredennick, M.D. It is docketed at A.D. No. 83-030 Book 123 Page 30. We are in chambers with respective counsel, Leonard Price for the plaintiff and Giles Gaea for the defendant. Mr. Price has a few things to put on the record before we begin. .
MR. PRICE: Okay. What I had said earlier to Judge Dillon was that if it turns out that any of the potential jurors on the panel are either patients of Dr. Wick or know him, I wanted them removed from the jury panel and to be replaced by other jurors who neither are or were patients of Dr. Wick or know him. And I think the Judge — well, you can—
THE COURT: My position is that I will follow that, if anyone knows him or is a patient, I will ask if that fact would prevent them from rendering a true and impartial verdict based solely on the evidence to be introduced and if they have a negative answer, you are going to have to exercise a preemptory challenge. If it is a positive, they would be removed for cause.
MR. PRICE: And further, for the record, I would like to say that the jury list that I have contains ninety jurors’ names and again, I say that out of a pool of ninety, I respectfully believe that the plaintiff’s are entitled to have twenty jurors, none of who know Dr. Wick or patients of his and despite their disclaimer, they could not be fair and impartial, so forth. I still think they should not be allowed to sit as witnesses.
THE COURT: Well, you protected the record. What else do you have?
MR. PRICE: That’s all.
N.T. 10/15/84, pp. 3-4.

It is critical to note that there was a Dr. Wick, a local physician, involved in the case as a potential defense witness. The prospective jurors were asked if they were friends or had been treated by Dr. Wick as well as any of the other physicians listed as witnesses. There were no affirmative replies. (N.T. 10/15/84, p. 10.)

Appellants do not attempt to explain why the record reflects only an objection to jurors with relationships with Dr. Wick. Rather, appellants contend they made a motion to challenge which included jurors who were patients of appellee. There is no written motion contained in the record and the oral motion which is part of the record only addresses jurors who knew or were patients of Dr. Wick.

The complaining party “has the duty to preserve the record, and, in this case, the appellant neglected to do so.” Johnson v. O’Leary, 277 Pa.Super. 223, 230, 419 A.2d 742, 746 (1980). It is well settled that we cannot consider anything which is not put on the record, McCaffrey v. Pittsburgh Athletic Association, 448 Pa. 151, 293 A.2d 51 (1972), and when a claim of error is not properly preserved, we are not permitted to consider that claim on appeal. Benson v. Penn Central Transportation Co., 463 Pa. 37, 342 A.2d 393 (1975).

Appellants next contend the trial court erred in ordering a bifurcation of the issues of liability and damages. Under Pa.R.C.P. 213(b), a trial court may, in furtherance of convenience, order a separate trial of any issue. While appellants again state an objection was made to the bifurcation, we find no such objection in the record before us, and this issue is, therefore, waived. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

The third argument proffered is whether the trial court erred by not striking the testimony of Dr. Swan because it did not rise to the level of certainty required. Appellants’ expert had testified Mrs. Erken’s eye infection resulted when appellee had removed sutures from the eye. Dr. Swan testified for appellee and opined, that given the surgical technique used, the infection did not result from the suture removal but could have been carried by the bloodstream.

It is within the discretion of the trial court to permit testimony from one expert showing that the facts do not support the 'opinion of another expert. Schwartz v. Feldman, 196 Pa.Super. 492, 175 A.2d 153 (1961). After reviewing the entire testimony of both experts in this case, we find no abuse of discretion. It is true that Dr. Swan did not state with reasonable medical certainty what did cause the infection, but his testimony was quite clear as to his basis for finding the suture removal did not cause it.

We also find no error in the trial judge’s refusal to enter judgment n.o.v. A judgment n.o.v. may be entered only where no two reasonable persons could disagree the verdict was improper. McCloskey v. New York Life Ins. Co., 292 Pa.Super. 1, 436 A.2d 690 (1981). This case became a battle of the experts and our review of the record finds more than adequate evidence upon which the jury could have based their verdict.

Appellant also argues a new trial should have been granted because the verdict is against the weight of the evidence. Viewing the evidence in its entirety, there was sufficient testimony to contradict the alleged negligence. Appellee himself testified extensively as to his methods of treatment, and he was supported by two other defense experts.

Finally, appellants allege it was error to hold argument on their post-trial motions before the transcript was completed. Appellants concede they had not timely paid a deposit of partial transcript fee but state they would have paid such a fee if asked. Furthermore, appellants fail to explain how they were prejudiced by arguing their motion when scheduled. Although they contend “counsel was forced to rely on memory alone” (Brief for Appellants at p. 52), appellants do not give any instances where reference to the transcript would have altered their arguments. Indeed, appellants’ use of the transcript in their appeal before us has not convinced us that any of these issues merits reversal. Therefore, we cannot say a new trial should be granted because they were forced to argue post-verdict motions orally prior to the receipt of the transcript.

Judgment affirmed.