author: PRICE, Judge:

text:
    455 A.2d 641
    COMMONWEALTH of Pennsylvania v. Terri TAMI and Bonnie Irvine Tami, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1980.
    Filed Dec. 10, 1982.
    Reargument Denied Feb. 22, 1983.
    Petition for Allowance of Appeal Denied May 16, 1983.

      Dennis C. Cogan, Allen Ellis and Robert C. Fogelnest, Philadelphia, submitted a brief on behalf of appellants.
    William F. Morgan, Assistant District Attorney, Warren, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   PRICE, Judge:

The instant appeal is brought from an order of the court below, entered on April 29, 1980, denying appellants’ motion to dismiss based on double jeopardy grounds. For the reasons stated herein, we affirm the order of the lower court.

The events pertinent to this appeal are as follows: The appellants, Terri Tami and Bonnie Irvine Tami, husband and wife, were convicted in a non-jury trial before Wolfe, P.J. of Warren County of delivering a controlled substance in violation of the Drug, Device and Cosmetic Act of 1972.

At the preliminary hearing, undercover state trooper Paul Bartko testified that in May 1976 he was introduced to the appellants by one Jack White. The next encounter between Bartko and one of the appellants was on June 22, 1976. On that date, White telephoned the Tami residence and said that Bartko would be stopping by. Bartko went to the Tami residence later that day and purchased narcotics from Bonnie Irvine Tami. He made three subsequent purchases from the appellants. Trooper Bartko was unaccompanied on each of the four occasions.

On appeal, the Superior Court reversed and granted a new trial on the grounds that the record failed to disclose that appellants’ waiver of a jury trial was knowingly and intelligently made. Commonwealth v. Tami, 264 Pa. Superior Ct. 535, 400 A.2d 214 (1979). Prior to the commencement of the second trial the appellants jointly filed a motion to dismiss based on double jeopardy and violation of due process grounds wherein they contended that as a result of intentional prosecutorial misconduct during the proceedings surrounding the first trial they failed to raise the defense of entrapment. Specifically, appellants argue that the Commonwealth at the preliminary hearing misled them into believing that, Jack White, the intermediary who introduced the appellants to the undercover police officer tó whom they sold narcotics, was not a government informant. Therefore, appellants argue, they were foreclosed from developing an entrapment defense. We find the appellants’ characterization of the facts to be unsupportable.

Appellants contend that they were misled by the testimony of the undercover state police officer, Paul Bartko, at the preliminary hearings. Specifically, appellants point to the testimony of Bartko on cross-examination. It was during Bonnie Irvine Tami’s preliminary hearing that defense counsel first inquired as to the role of the intermediary, Jack White:

Q. Trooper Bartko, when and how did you first meet Bonnie Irvine?
A. I don’t remember the exact date but I was taken to her by a subject named Jack White.
Q. Was he working with the State Police as a confidential informant?

At this point the assistant district attorney objected to the question, arguing that the state did not have to disclose the identity of confidential informants at preliminary hearings. The magistrate sustained the objection. The defense counsel continued his cross-examination:

Q. You were introduced to Bonnie by Jack White?
A. Yes.
Q. Did Jack know you were a State police officer at the time?
A. I don’t know. I don’t believe so, but I don’t know.
Q. When did Jack White first become aware of the fact that you are a State Police Officer?
A. I don’t know if he does yet____

Later, at Terri Tami’s preliminary hearing, defense counsel, who was representing both parties, again inquired about Jack White:

Q. ... Again, trooper, how did you meet Terry [sic] Tami, through Jack White?
A. Yes, at the same time I had met Bonnie, the same day.
Q. So if I can get this straight, Jack walked you in the first time, not knowing you were an undercover agent?
A. As far as I know, yes.

In response to the appellants’ discovery motion prior to the second trial, the first discovery concerning Jack White, the Warren County district attorney indicated that White was cooperating with the police in the hope that the authorities would be lenient in regard to simple assault, disorderly conduct and criminal mischief charges pending against him. White was not paid for his cooperation and the charges against him were subsequently dismissed by the grand jury.

First, we fail to see how appellants were misled by the testimony of state police officer Bartko. When the assistant district attorney objected to the defense counsel question as to whether Jack White was working as an informant, it was implicit that White was in fact an informant. At the very least the objection signaled to defense counsel that White might be more than a simple dupe of the undercover state police officer. In sum, the appellants knew the identity of the person who led the undercover police officer to them and the details of White’s activities vis-a-vis appellants and the police officer. We fail to see how appellants were prejudiced in their ability to prepare their case for the first trial.

In addition, our examination of the complete record reveals not the slightest evidence to support a defense of entrapment.

The test for entrapment is provided in 18 Pa.C.S.A. § 313(a) and (b) wherein it is stated:

(a) General Rule—A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence for the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) Making knowingly false representations to induce the belief that such conduct is not prohibited; or
(2) Employing methods of persuasion or inducement which creates a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of Proof—... [A] person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment.

As we stated in Commonwealth v. Stokes, 264 Pa. Superior Ct. 515, 518, 400 A.2d 204, 206 (1979):

This rule calls for an objective evaluation of police conduct to determine whether there is a substantial risk that the offense will be committed by persons innocently disposed. Thus, in order that the defense of entrapment succeed, it must be shown that the police conduct would have induced an innocent person to commit a crime, (citations omitted)..

Viewing the conduct of undercover police officer Bartko and informant White objectively, they did nothing more than afford appellants an opportunity to make narcotics sales. Indeed, White’s only role in this matter was to introduce the police officer to the appellants as a person interested in purchasing narcotics. Moreover, on each of the occasions where a purchase was made by the police officer and for which appellants were charged and convicted, Jack White was not even present.

Accordingly, the order of the trial court denying appellants’ Motion to Dismiss is affirmed.

      . Terri Tami and Bonnie Irvine Tami were each convicted of 2 counts, and each were fined $500 plus costs and sentenced to 2-4 years imprisonment.

      . Act of April 14, 1972, P.L. 233, No. 64 § 13, amended by Acts of October 26, 1972, P.L. 1048, No. 263, § 1; December 30, 1974, P.L. 1041, No. 340, § 1. Amended subsequent to appellants’ first trial by Acts of November 26, 1978, P.L. 1392, No. 328, § 2; and December 4, 1980, P.L. 1093, No. 186, § 2.


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    455 A.2d 643
    Ernest W. GOLDSBOROUGH, Appellant, v. CITY OF PHILADELPHIA, Frank L. Rizzo, Hillel S. Levinson, Joseph Wnukowski, Foster Roser and Thomas Piccoli.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1981.
    Filed Dec. 10, 1982.
    Reargument Denied Feb. 25, 1983.
    Petition for Allowance of Appeal Denied June 8, 1983.

      George J. O’Neill, Philadelphia, for appellant.
    Marylouise Darsigny, Philadelphia, for appellees.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   McEWEN, Judge:

We here consider an appeal from an order of the Court of Common Pleas of Philadelphia County which entered a judgment of non pros against the plaintiff and in favor of the defendants. We affirm.

Plaintiff, a former employee of the City of Philadelphia, brought this action as a result of the alleged improper termination of his position as “Prison Program Development Director”. Suit was commenced on May 24, 1974, by a writ of summons in trespass and assumpsit. On June 24, 1974, the Prothonotary, upon praecipe of the defendants,' entered a rule upon the plaintiff to file a complaint in twenty (20) days or suffer a judgment of non pros. Counsel for defendants on June 27, 1974, granted counsel for plaintiff an extension of sixty (60) days in order to allow the plaintiff time to prepare a complaint. Counsel for plaintiff then served a notice on counsel for defendants that the deposition of each of the individual defendants would be taken on July 8, 1974, “to assist counsel for plaintiff in preparation of a complaint upon all causes of action plaintiff may have against defendants by reason of their acts and omissions in connection with all events, occurrences and transactions leading up to and following the abolition of plaintiff’s job with the City of Philadelphia and his ‘layoff’ resulting therefrom. An additional purpose is the preservation of testimony and other evidence for use at trial as permitted by law.” Defendants moved for a protective order contending that the conduct of depositions would be prejudicial to the defendants and that the plaintiff had sufficient information to file a complaint due to the fact that complaints had earlier been filed with both the Pennsylvania Human Relations Commission on July 25, 1973, and with the Equal Employment Opportunity Commission on March 19, 1974. The protective order was granted on September 23, 1974, and prohibited plaintiff from scheduling depositions until after responsive pleadings, including a complaint and answer thereto, were filed.

It was not until more than four years had elapsed and the suit was listed for dismissal pursuant to the Philadelphia Common Pleas Court Rule 130 pertaining to the disposition of cases that had been inactive for two years, that plaintiff filed a complaint on December 22, 1978. Defendants filed preliminary objections with a request that the complaint be stricken with prejudice and a judgment of non pros be entered in favor of the defendants.

Plaintiff, in response to the preliminary objections of defendants, filed preliminary objections requesting that the preliminary objections of the defendants be dismissed for the reason that defendants’ preliminary objections were filed four days late. Defendants then filed an answer in which they admitted the late filing but alleged that plaintiff never denied their request for an extension of time.

The distinguished Judge Paul Silverstein of the Court of Common Pleas of Philadelphia County issued an Order which: (1) dismissed the preliminary objections of the plaintiff to the preliminary objections of the defendants; (2) granted the preliminary objections of the defendants which sought dismissal of plaintiff’s complaint with prejudice; and (3) entered a judgment of non pros against the plaintiff.

The Common Pleas Court properly refused to strike the preliminary objections of the defendants on the basis of a four (4) day delay in the filing of this pleading. Pennsylvania Rule of Civil Procedure 126 provides as follows:

Rule 126. Liberal Construction and Application of Rules The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

Our Supreme Court, in Fisher v. Hill, 368 Pa. 53, 81 A.2d 860 (1951), decided that the trial court did not err when it allowed the filing of an answer ten (10) months after service of the complaint. The court therein stated, “it is sufficient now to hold that dilatory pleadings may be filed if the opposite party is not prejudiced and justice requires. Much must be left to the discretion of the lower court.” In the instant case, the plaintiff has not suffered any prejudice by reason of the four (4) day delay in the filing of the preliminary objections and justice requires that the preliminary objections of the defendants not be stricken.

We next discuss the substantive issue of whether the judgment of non pros was properly entered.

A court may properly enter a judgment of non pros (1) when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and (2) there has been no compelling reason for the delay, and (3) the delay has caused some prejudice to the adverse party ... (numerical designations added). James Bros. Lumber Co. v. Union Banking and Trust Co. of DuBois, 432 Pa. 129, 132, 247 A.2d 587, 589 (1968).

The Common Pleas Court in the instant case gave the following reasons for the entry of a non pros:

There appears to be no compelling reason for the delay and none has been offered. By virtue of the passage of time, one individual defendant has died and two other individual defendants have retired, as a consequence of which the moving parties have been unduly prejudiced by plaintiffs dilatory action.
A court may grant a non pros when it appears that the plaintiff has failed to prosecute his action within a reasonable time. There is no apparent reasonable excuse for the delay and defendants have been prejudiced thereby. (Trial Court Opinion at pp. 2-3).

There can be no disagreement that a delay of fifty-one months reflects “a want of due diligence.” Nor is there any merit to the argument of the plaintiff that the order of the Common Pleas Court which prohibited the taking of the depositions of the defendants prior to the filing of a complaint unduly limited the ability of the plaintiff to file that complaint. And, finally, we are unable to differ with the conclusion of the hearing court that the death of one individual defendant and the retirement of two others, constitutes a prejudicial impairment of the ability of the defendants to defend the law suit.

It seems clear that if the civil justice system is to achieve the goal of serving the public generally and litigants specifically in an alert, orderly and efficient fashion, then we must be wary on appellate review of reversing the decisions of the County Courts relating to the conduct of litigation in those courts, particularly with regard to timeliness, unless there appears to be a manifest abuse of discretion. The learned judge has in able fashion provided for a proper disposition of this case.

Order affirmed.


author: BECK, Judge:

text:
    455 A.2d 646
    BEATRICE FOODS COMPANY v. PROCTOR & SCHWARTZ, INC. and the Celotex Corporation and Eclipse, Inc. and Easton Wholesale Co., Inc. and James A Hill, T/A James A. Hill, Contractors Appeal of The CELOTEX CORPORATION.
    Superior Court of Pennsylvania.
    Argued May 25, 1982.
    Filed Dec. 10, 1982.
    Reargument Denied Feb. 25, 1983.
    Petition for Allowance of Appeal Denied July 11, 1983.

      Michael J. Plevyak, West Chester, for appellant.
    Christopher C. Fallon, Jr., Philadelphia, for Beatrice Foods, appellee.

      Louis Evan Bricklin, Philadelphia, for Proctor & Schwartz, et al., appellees.
    Before BEOSKY, WIEAND and BECK, JJ.
   BECK, Judge:

Appellee Beatrice Foods Co. (“Beatrice”) is a Delaware corporation with its principal place of business in Chicago, Illinois. Beatrice owns and operates a manufacturing and packaging business in Berlin, Maryland. In June, 1977, a fire broke out in the Berlin plant causing extensive damage to Beatrice’s property and business. Beatrice initiated a suit in Philadelphia against two defendants, Proctor & Schwartz, Inc., the manufacturer of the equipment in which the fire allegedly began, and Celotex Corporation (“Celotex”), a Delaware corporation with its principal place of business in Tampa, Florida which supplied the insulation material that allegedly caused the fire to spread rapidly through the plant. Celotex thereafter sought to join James A. Hill, an individual contractor who operates his own business in Delaware, who installed the Celotex insulation material. Celotex also moved to dismiss the suit on the grounds of forum non conveniens. Hill filed preliminary objections challenging the jurisdiction of the Pennsylvania court over him. The court below sustained the preliminary objections of Hill and denied Celotex’s motion for dismissal. Celotex now appeals both orders.

Celotex raises two issues on appeal. The first is whether the lower court erred in ruling that Hill is not subject to the jurisdiction of the Pennsylvania court under the Commonwealth’s long-arm statute. The second issue is whether the lower court properly refused under the Commonwealth’s long-arm statute to dismiss appellee Beatrice’s suit against Celotex on the grounds of forum non conveniens.

On the first issue, Celotex argues that Hill, who owns property in Pennsylvania, has brought materials here, and has shipped materials through this state, is therefore subject to the jurisdiction of Pennsylvania under the terms of 42 Pa.C.S. § 5322:

§ 5322. Bases of personal jurisdiction over persons outside this Commonwealth.
(a) General rule.—A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(1) Transacting any business in this Commonwealth. Without excluding other acts which may constitute transacting business in this Commonwealth, any of the following shall constitute transacting business for the purpose of this paragraph:
(ii) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.
(iii) The shipping of merchandise directly or indirectly into or through this Commonwealth.
(iv) The engaging in any business or profession within this Commonwealth, whether or not such business requires license or approval by any government unit of this Commonwealth.
(v) The ownership, use or possession of any real property situate within this Commonwealth.
(b) Exercising of full constitutional power over nonresidents.—In addition to the provisions of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5301 (relating to persons) to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.
(c) Scope of jurisdiction.—When jurisdiction over a person is based solely upon this section, only a cause of action or other matter arising from acts enumerated in subsection (a), or from acts forming the basis of jurisdiction under subsection (b), may be asserted against him.

This Court has held that 42 Pa.C.S. § 5322 makes the exercise of jurisdiction over a non-resident co-extensive with the permissible limits of the due process clause of the Fourteenth Amendment. To determine whether Hill’s activities bring him within the reach of our long-arm statute, we have evolved two successive tests. Koenig v. International Brotherhood of Boilermakers, 284 Pa.Super. 558, 426 A.2d 635 (1980). The first step of the analysis is to subject Hill’s conduct to the test of Proctor & Schwartz v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11, 15 (1974):

First, the defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws. Hanson v. Denckla, supra, [357 U.S. 235 [78 S.Ct. 1228, 2 L.Ed.2d 1283] (1958)]. Secondly, the cause of action must arise from defendant’s activities within the forum state. See Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374 (6th Cir.1968); Electric Regulator Corp. v. Sterling Extruder Corp., 280 F.Supp. 550 (D.Conn.1968). Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable. International Shoe Co. v. Washington, [326 U.S. 310 [66 S.Ct. 154, 90 L.Ed. 95] (1945)]; see Southern Mach. Co. v. Mohasco Indus., Inc., [401 F.2d 374 (6th Cir.1968)]; see also In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220 (6th Cir.1972); Kourkene v. American BBR, Inc., 313 F.2d 769 (9th Cir.1968).

Hill lives and operates his contracting business in Delaware, has no place of business within the Commonwealth, and has never undertaken any construction nor supplied any services within Pennsylvania. The cause of action clearly does not arise from Hill’s activities within the forum state and the test of Proctor is not met.

If the standards set forth in Proctor are not satisfied, the Court next inquires as to whether the non-resident defendant’s activities in Pennsylvania which are unrelated to the cause of action were “continuous and substantial.” Bork v. Mills, 458 Pa. 228, 329 A.2d 247 (1974).

The Restatement Conflict of Laws, 2d, 35 states:

"... A state has power to exercise judicial jurisdiction over an individual who does business in the state with respect to causes of action that do not arise from the business done in the state if this business is so continuous and substantial as to make it reasonable for the state to exercise such jurisdiction.”

We look now at Hill’s contacts with Pennsylvania that are not related to the Maryland fire. Hill concedes that he owns an undeveloped vacation lot in Pennsylvania, that he has occasionally purchased some business machines from Pennsylvania vendors, and that he has in the past used Pennsylvania highways to transport materials, including some used in the Maryland plant (albeit not the Celotex insulation material concerned in the lawsuit). The United States Supreme Court has stated that the concept of “minimum contacts” makes it essential that defendants should be protected against the burdens of litigating in distant and inconvenient forms. States, through their courts, should not reach beyond the limits imposed on them by their status as coequal sovereigns in a federal system. World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), Kingsley and Keith (Canada) Limited v. Mercer Intern. Corp., 291 Pa.Super. 96, 435 A.2d 585 (1981). We conclude that Hill’s occasional purchases from Pennsylvania vendors and the use of Pennsylvania highways to transport steel used in the erection of the Maryland building do not constitute business which is “continuous and substantial” within the Commonwealth, and that the test of Bork is not satisfied. We therefore affirm the order of the court below sustaining Hill’s objection to appellant Celotex’s complaint against him as an additional defendant.

The second issue for consideration is Celotex’s motion for dismissal pursuant to 42 Pa.C.S. § 5322(e) and the doctrine of forum non conveniens:

(e) Inconvenient forum.—When a tribunal finds that in the interest of substantial justice the matter should be heard in another forum, the tribunal may stay or dismiss the matter in whole or in part on any conditions that may be just.

At all times material to the present action, Celotex was engaged in business within the Commonwealth, with a sales office located in Philadelphia. Celotex does not challenge the jurisdiction of the Commonwealth over the corporation. Forum non conveniens permits a court, exercising its discretion, to refuse to entertain a case even if jurisdictional requirements are met. Since the decision to dismiss is discretionary with the trial court, it is reviewable only as an abuse of discretion. Plum v. Tampax, Inc., 399 Pa. 553, 160 A.2d 549 (1960), relying on Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947).

The two most important factors for the court to consider are (1) a plaintiffs choice of the place of suit will not be disturbed except for weighty reasons, and (2) no action will be dismissed unless an alternative forum is available to the plaintiff. Remaining factors to be considered are the interests of the parties and the public relating to accessibility of sources of proof, availability of witnesses, and all such practical matters that help ease, expedite, and reduce the cost of trial. Daugherty v. Inland Tugs Co., 240 Pa.Super. 527, 359 A.2d 465 (1976), Norman v. Norfolk and Western Railway, 228 Pa.Super. 319, 323 A.2d 850 (1974), incorporating Restatement, 2d, Conflicts § 84.

For reasons of justice and comity, a nonresident plaintiff, in this instance Beatrice, is usually entitled to have his complaint heard in the forum of his choice. Dismissal of the plaintiffs action by a court with legal power to grant him relief places the plaintiff in the position of having expended time and money in a wasted action. A court will therefore not dismiss for forum non conveniens unless justice strongly militates in favor of relegating the plaintiff to another forum.

[71 In the instant case, in June 1979 Beatrice initiated suit in Pennsylvania, the jurisdiction where defendant Proctor & Schwartz has its principal place of business and where defendant Celotex has a permanent office. Approximately one year later, in June 1980, after a considerable amount of discovery had been completed, Celotex moved to dismiss the action. While it is true that a defendant does not waive the right to move to dismiss pursuant- to 42 Pa.C.S. § 5322(e) by failing to raise the matter as a preliminary objection, our Supreme court has ruled that where a defendant has submitted to the jurisdiction of the present forum, the discretion afforded the trial court is even broader. Moore v. Ohio River Company, 406 Pa. 272, 177 A.2d 493 (1961). We adopt the policy of other jurisdictions which have looked to the timing of the defendant’s motion in deciding whether the forum is convenient. “Delay in urging application of the doctrine will and should be considered in a determination of whether or not it is to be applied.” Dietrich v. Texas National Petroleum Co., 193 A.2d 579 (Del.Super.1963). A defendant cannot let a plaintiff prepare for many months and then raise this objection for the first time. “Such action does not prompt the court to exercise its discretion in their favor.” Fifth & Walnut v. Loew’s, Inc., 76 F.Supp. 64, 67 (S.D.N.Y.1948).

The substance of appellant’s argument is that the case should be heard in Maryland, the site of the fire and the place where witnesses, as well as firefighters and investigators, reside. However, as the trial court correctly maintained, it is the plaintiff Beatrice’s burden to prove the cause and extent of the destruction, so that any inconvenience or expense will be borne by it and not Celotex.

Since Maryland has adopted the Uniform Foreign Depositions Act, witnesses may be compelled to appear and testify in the same manner as if the proceedings ■ were pending in the state of Maryland. This is a products liability case in which it is expected that both parties will call expert witnesses, for whom Philadelphia will be as convenient and accessible as any location within Maryland. We agree, too, with the trial court that appellant Celotex has not shown that a view of the premises will be necessary or helpful to its case.

The issue before this Court is not whether Maryland is a more convenient forum, but whether the trial court abused its discretion in denying dismissal so as to preserve the plaintiffs choice of forum. Abuse of discretion is shown by a record of misapplication of the law, or judgment that is manifestly unreasonable, or motivated by partiality, prejudice, bias, or ill-will. Buchanan v. Century Fed. Sav. and Loan Ass’n, 259 Pa.Super. 37, 393 A.2d 704 (1978).

We conclude that appellant has not met the burden of proving abuse of discretion, and accordingly we affirm the second order of the court below. Accordingly, both orders of the Court below are AFFIRMED.


author: HOFFMAN, Judge:

text:
    455 A.2d 651
    WEST MOUNTAIN POULTRY COMPANY, Appellant, v. Myron GRESS, Ronald Gress, Peter Gress, Edward J. Gress, Gress Foods, Inc. and Gress Poultry, Inc.
    Superior Court of Pennsylvania.
    Argued May 10, 1982.
    Filed Dec. 10, 1982.
    Reargument Denied Feb. 25, 1983.

      Roger Mattes, Scranton, for appellant.
    James J. Zaydon, Scraton, for Myron, Ronald, Peter and Edward Gress, appellees.
    Clinton R. Weidner, Jr., Lemoyne, for Gress Foods and Gress Poultry, appellees.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erroneously granted a non-suit in favor of appellees. Because questions of fact remained to be determined, we reverse and remand for a new trial.

Appellant, West Mountain Poultry Co., is owned in equal shares by Jerome Barth and Gress Farms, Inc. Gress Farms, Inc. owned by several members of the Gress family who, in varied alignments hold two other chicken processing plants with the Gress name, leases space to appellant for processing comminuted chicken meat. Barth, an expert in comminuted chicken, and the Gress family members, joined to start appellant in the comminuted chicken business. A few years after appellant began operating, two of the Gress family businesses began comminuting chicken themselves. On October 11, 1977, appellant filed a complaint alleging that individual Gress family members and two of the family businesses conspired to take trade secrets and customer lists from appellant, resulting in the destruction of appellant’s business. The case went to trial before a jury on March 9, 1981 and continued until March 13 when, at the close of appellant’s evidence, the lower court granted appellees’ motions for a non-suit. Appellant petitioned the lower court to remove the compulsory non-suit, but on October 6, 1981 the court denied the motion. This appeal followed.

“A judgment of non-suit can be entered only in clear cases and plaintiff must be given the benefit of all evidence favorable to him, together with all reasonable inferences of fact arising therefrom, and any conflict with the evidence must be resolved in his favor.” Engel v. Spino, 425 Pa. 254, 256, 228 A.2d 745, 746 (1961). When a compulsory non-suit is entered, “lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement.” McAuliffe v. Constantine, 228 Pa.Superior Ct. 52, 54, 323 A.2d 158, 159 (1974). “When an issue of credibility is raised on motion for compulsory non-suit, it is not within the province of the trial judge to determine the believability of the plaintiff’s testimony.” Scott v. Purcell, 490 Pa. 109, 113, 415 A.2d 56, 58 (1980). “Unless there are no conflicting inferences to be drawn it is far better to hear the defense so that the appellate court may have the benefit of findings of fact and conclusions of law.” Shechter v. Shechter, 366 Pa. 30, 32-33, 76 A.2d 753, 755 (1950). Finally, a non-suit may only be entered where “the facts and circumstances lead unerringly to but one conclusion.” Paul v. Hess Bros., 226 Pa.Superior Ct. 92, 94-95, 312 A.2d 65, 66 (1973).

Appellant contends that the jury heard sufficient evidence to find the existence of trade secrets, a confidential list of customers and use by appellees of this information to the detriment of appellant. We find that the questions of whether trade secrets and a confidential list of customers exist are questions of fact for the jury, and therefore the grant of a non-suit inappropriate. “A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.” Restatement of Torts § 757 comment b (1939). E.g. Van Products Co. v. General Welding and Fabricating Co., 419 Pa. 248, 213 A.2d 769 (1965). To be entitled to relief, the party claiming the trade secret must show

(1) that there was a trade secret or, as in the case at bar, a secret process or manufacture; (2) that it was of value to the employer and important in the conduct of his business; (3) that by reason of discovery or ownership the employer had the right to the use and enjoyment of the secret; and (4) that the secret was communicated to the employee while he was employed in a position of trust and confidence under such circumstances as to make it inequitable and unjust for him to disclose it to others, or to make use of it himself, to the prejudice of his employer.

Macbeth-Evans Glass Co. v. Schnelbach, 239 Pa. 76, 87, 86 A. 688, 691 (1913). Accord, Van Products Co. v. General Welding and Fabricating Co., supra 419 Pa. at 259, 213 A.2d at 775. Appellant claims that the necessary machine adjustments in the comminuted chicken process and the list of customers to whom the meat is sold are trade secrets. Barth testified as to his knowledge of the process and his personal development of customers on behalf of appellant. In addition, Paul McFarland, sales manager for a company engaged in the sale of food processing equipment, was qualified as an expert witness and testified that the machine adjustment and customer lists are considered secrets in the trade. The testimony provides sufficient evidence for the jury to find the existence of trade secrets. Accordingly, it is for the jury to determine the weight and credibility of the testimony and thus decide if the alleged trade secrets deserve protection because they are “particular secrets of the complaining [holder] and not general secrets of the trade in which [the holder] is engaged.” Capital Bakers, Inc. v. Townsend, 426 Pa. 188, 191, 231 A.2d 292, 293 (1967). The evidence presented also raised a question of fact as to whether the individual appellees agreed to holding the alleged trade secrets in confidence. Appellant’s incorporation agreement set forth a covenant not to compete. The stock certificates subsequently distributed to the individual Gress Farms, Inc. shareholders referred to that agreement with the legend:

As per agreement between Jerome Barth and Gress Farms signed January 1974.
s/Jerome Barth
s/Elmer Gress.

Appellant urges that the signature of Elmer Gress binds the individual shareholders to the covenant not to compete. Because the jury could find facts sufficient to support a confidential relationship between appellant and the individual appellees, regardless of the existence or non-existence of a covenant, the lower court’s finding that only Gress Farms, Inc. was bound by the covenant still leaves a question of fact to be decided by the jury. “[E]ven in the absence of such an express agreement, an employer is entitled to equitable protection against the competitive use of confidential and secret information obtained as a result of the trust and confidence of previous employment.” Carl A. Colteryahn Dairy, Inc. v. Schneider Dairy, 415 Pa. 276, 280, 203 A.2d 469, 471 (1964). Thus, notwithstanding the possible absence of a binding agreement, the jury might determine that the circumstances placed appellees in a relation of such confidence as to make it unjust for them to use appellant’s trade secrets.

We find that appellant’s evidence presents questions of fact appropriate for determination by the jury, and accordingly, reverse and remand for a new trial.

Reversed and remanded.

      . Comminuted chicken meat is a by-product of the chicken deboning process. Small particles of chicken meat are mechanically removed from necks, rib cages and bones after most of the meat has been cut off by hand. The technology that is subject to the trade secrets conflict involves machine settings and operation.

      . Confidential lists of customers are entitled to the same protection afforded trade secrets and are subject to the standard outlined in Macbeth-Evans, supra at 3. See Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957).

      . Elmer Gress, a shareholder in Gress Farms, Inc. is not one of the individual defendants.

      . Because of our disposition of this case, we need not address appellant’s remaining contentions.


author: SPAETH, Judge: JOHNSON, Judge,

text:
    455 A.2d 654
    COMMONWEALTH of Pennsylvania v. Larry JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 15, 1982.
    Filed Dec. 17, 1982.
    Reargument Denied Feb. 25, 1983.

      Paul R. Gettleman, Pittsburgh, for appellant.
    Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence to life imprisonment for second degree murder. The murder was committed in the course of a robbery. Over appellant’s objection, the lower court excluded the public from the court room during the selection of the jury. Appellant argues that the lower court thereby denied him his Constitutional right to a public trial. We agree. The judgment of sentence will therefore be vacated and the casé remanded for a new trial.

-1-

Before we may consider appellant’s argument on its merits, we must dispose of a procedural issue.

The lower court has not filed an opinion explaining why it excluded the public from the court room during the selection of the jury, or, indeed, responding to any of the issues that appellant has raised. Instead the lower court has filed only a pre-printed form. The form is entitled “Opinion” and contains blank spacés in which certain information has been typed in, to the effect that appellant was found guilty on December 7, 1978, of second degree murder, robbery, and criminal conspiracy; that on November 18, 1980, he was sentenced to life imprisonment; and that on November 20, 1980, he filed a direct appeal to this court. The form then concludes as follows:

On November 21, 1980, we did, pursuant to Pennsylvania Rules of Appellate Procedure 1925(b), direct the appellant to file of record and serve upon this Court a brief and concise statement of the matters complained of on appeal by December 5, 1980. To the present time, we have yet to receive same and are uncertain as1 to the basis of the appeal. We have made an independent examination of the record but are unable to assume or presume the nature of appellant’s objections and are, therefore, unable to discuss them.

Rule 1925(b) provides:

(b) Direction to file statement of matters complained of If the lower court is uncertain as to the basis for the appeal, the lower court may by order direct the appellant forthwith to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on appeal. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.
Pa.R.A.P. 1925(b) (emphasis added).

The procedural issue we must decide, therefore, is whether we should exercise the discretion given us by Rule 1925(b) to hold that by his failure to file a statement of matters complained of by the date set by the lower court, appellant has waived the arguments he now makes to us. See Commonwealth v. Silver, 499 Pa. 228, 238, 452 A.2d 1328, 1333 (1982) (“waiver provision of Rule 1925(b) is clearly discretionary” and “is properly invoked only where failure to file a statement or omission from a statement of issues raised on appeal defeats effective appellate review.”); Commonwealth v. Crowley, 259 Pa.Super. 204, 393 A.2d 789 (1978).

The discretion given us by Rule 1925(b) is to be exercised with great care. For if we say that an objection has been waived because of a failure to comply with the rule, that may be equivalent to dismissing the appeal. Here, that would be so.

In deciding whether to hold an objection waived, we must examine the failure to comply with Rule 1925 in the context of the entire case. We must therefore always ask how serious was the failure. The inquiry is equitable in nature, and is similar to that undertaken in other cases involving an exercise of discretion. One consideration must be balanced against another. See, e.g., Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982) (en banc) (collecting cases); Raymond J. Brusco Funeral Home v. Sicilia, 277 Pa.Super. 115, 419 A.2d 688 (1980); Toplovich v. Spitman, 239 Pa.Super. 327, 361 A.2d 425 (1976). The less consequential the objection in question, and the more egregious the failure to comply with Rule 1925, the more likely are we to hold the objection waived; the more consequential the objection, and the slighter the failure, the less likely. Here, the case is very grave: second degree murder, with life imprisonment; the objection in question raises an issue of central importance, not simply for this case but for the trial of criminal cases generally; and the failure to comply with Rule 1925 was very slight.

December 5, 1980, the date by which appellant was to file his statement under Rule 1925(b), was a Friday. On Monday, December 8, appellant’s counsel filed a “Brief in Support of New Trial and/or Arrest of Judgment.” Except for its title, the brief qualified in every respect as a statement under Rule 1925(b), for it contained a concise statement of the matters that appellant complained of. As regards appellant’s complaint that he was denied his right to a public trial, the brief says:

This Court committed reversible err[or] when it locked the courtroom and forbid the public access to the jury selection in the instant case. The constitutions of both Pennsylvania and the United States guarantee to the defendant the right to a public trial at all stages of the proceedings. Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980).
Record at 46.

Appellant’s brief is stamped as “Received” by the District Attorney on December 8, at 10:42 A.M., and as “Filed Clerk of Courts Dec. 9, 1980.” Thus, while the record does not disclose when the brief was delivered to the chambers of the lower court, it seems likely that delivery occurred on either December 8 or December 9. The lower court did not file its form opinion until December 10. It therefore appears that although appellant’s brief was late, it was nevertheless filed in time in the sense that it was filed in time for the lower court to be able to respond to its arguments. The lower court’s statement in its opinion that it was “unable to assume or presume the nature of appellant’s objections” appears to have been made inadvertently, i.e., without awareness that appellant had already filed a brief stating his objections.

The record discloses other facts that bear upon the extent of appellant’s failure to comply with Rule 1925(b). On December 11, 1978, appellant had filed post-trial motions for a new trial or in arrest of judgment. In those motions, he had argued the issues he now argues to us, including the issue that the lower court erred in excluding the public from the court room during the selection of the jury. Therefore, whenever the lower court became aware of appellant’s brief, it must have recognized appellant’s arguments as arguments that it had already considered and rejected. It may be that the lower court was, in a narrow sense, “within its rights” in nevertheless refusing to file an opinion explaining its rejection of appellant’s arguments, that is, in deciding that because the brief was late, it need not be considered. However, the court had sentenced appellant to life imprisonment. We think that a refusal to explain a decision of such gravity should rest on something more substantial than the fact that counsel filed his brief on December 8 or 9 instead of on December 5, especially given the intrinsic importance of at least two of appellant’s arguments: the right to a public trial, and (an argument that we do not need to reach, but that has in another case received the attention of the Supreme Court, Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981)), whether a person who has been hypnotized by the police may testify.

Finally, as it happens, we are not handicapped by the lower court’s refusal to file an opinion. At the time of overruling appellant’s objection, the lower court, as we shall see, stated its reasons for excluding the public from the court room during the selection of the jury. We are therefore in a position to appraise the validity of the court’s ruling, and probably in as good a position as if the court had filed an opinion, for presumably in its opinion the court would have repeated the reasons it gave at the time it made its ruling. See Commonwealth v. Silver, supra, 499 Pa. 238, 452 A.2d at 1333.

In summary, therefore: It is true that appellant failed to file a statement under Rule 1925(b) by December 5, 1980, as required by the lower court. However, by December 8 or 9 he did file a brief, advising the lower court of the matters he complained of; one of those matters was the lower court’s ruling excluding the public from the court room; appellant had earlier argued that matter; and the court’s reasons for its ruling appear of record. On these facts it would be an abuse of our discretion to hold that appellant has waived his objection to the lower court’s ruling.

-2-

The following is the entire record on the issue of the lower court’s ruling excluding the public from the court room during the selection of the jury:

MR. GETTLEMAN [counsel for appellant]: I would like him arraigned before the jury selection.
THE COURT: I don’t think there is any necessity for that.
MR. GETTLEMAN: All right. Well, I will just make these requests and you can either approve them or deny them. Whatever you want to do.
I would request the public be allowed to be present for the selection of the jury.
THE COURT: Well, that request is denied.
MR. GETTLEMAN: Fine.
THE COURT: We are operating in—
MR. GETTLEMAN: All right.
THE COURT: Well, just a moment. Let me tell you something, Mr.—
MR. GETTLEMAN: Gettleman.
THE COURT: Gettleman.
Before you get started don’t you start to be contemptuous in the trial of this case.
We are trying to insure that this man will receive a fair trial, but you don’t tell me what your ruling is.
MR. GETTLEMAN: That is not my—you made your ruling and I said fine. I accept your ruling.
THE COURT: No, you weren’t ready to accept anything.
I want to put on the Record the reasons that we can’t tolerate a situation like that is because we are operating in a Courthouse without any heat in the halls. That is number one.
We have no facilities that are large enough to accommodate a situation like that and we are not going to intimidate—we are not going to have any intimidation of jurors during the time they are being selected.
MR. GETTLEMAN: Okay. For the—
THE COURT: It hasn’t been the policy—it’s never been the policy in this Court to do that and you know it.
MR. GETTLEMAN: All right. For the Record I would like to put on the Record at least there are fifty empty seats in the Courtroom right now.
THE COURT: Yes.
MR. GETTLEMAN: And I just made the request that the public be—
THE COURT: Well, the request is denied.
Is there any particular reason why that should be?
MR. GETTLEMAN: Right. Because my client is entitled to a public trial at each and every stage and there are no provisions in the rules of criminal procedure in Pennsylvania which would permit a trial Judge to close the Courtroom during any stage of the proceedings.
THE COURT: Yes. Well, all right. Your objection is overruled.

N.T. I, at 8-10.

-3-

If appellant was denied his right to a public trial, a new trial must be granted; no showing of prejudice is required. Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902 (1976). And see United States ex rel. Bennett v. Rundle, 419 F.2d 599, 608 (3rd Cir.1969) (To require proof of actual prejudice would force defendant to prove what the disregard of his Sixth Amendment public trial right has made it impossible for him to learn); United States v. Kobli, 172 F.2d 919, 921 (3rd Cir.1949) (Violation of constitutional right to public trial necessarily implies prejudice and defendant need not prove actual injury, which is difficult or impossible to prove in such cases). The guarantee of a public trial in a criminal case is not for the protection of only the accused. The victim, in particular, and the community, in general, are also within the guarantee. “[I]f people are to use the courts, they must trust them. Courts achieve this goal by allowing people to observe, study, and compare them with other methods of resolving disputes.” All Courts Shall Be Open: The Public’s Right to View Judicial Proceedings and Records, 52 Temple L.Q. 311 (1979). (The author of this comment notes that its title derives from William Penn’s proclamation of the Duke of York’s Law for Pennsylvania in 1682. Id. at 311 n. *)

In In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), the United States Supreme Court discussed the basis of the guarantee:

This nation’s accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage. The exact date of its origin is obscure, but it likely evolved long before the settlement of our land as an accompaniment of the ancient institution of jury trial. In this country the guarantee to an accused of the right to a public trial first appeared in a state constitution in 1776. Following the ratification in 1791 of the Federal Constitution’s Sixth Amendment ... most of the original states and those subsequently admitted to the Union adopted similar constitutional provisions. Today almost without exception every state by constitution, statute, or judicial decision, requires that criminal trials be open to the public.
The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty____ Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.
Id. at 266-70, 68 S.Ct. at 504-506 (footnote citations omitted).

The Sixth Amendment guarantee of a public trial in a criminal case is binding on the states through the due process clause of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3rd Cir.1969). Our state constitution also guarantees a public trial. Indeed, the state constitution alluded to in the preceding quotation from In re Oliver is our constitution, for “[T]he Pennsylvania Constitution of 1776 was the first to include the guarantee to an accused of the right to a public trial.” Commonwealth ex rel. Paylor v. Cavell, 185 Pa.Super. 176, 181-182, 138 A.2d 246, 248-249 (1958), cert. denied. 358 U.S. 854, 79 S.Ct. 84, 3 L.Ed.2d 888 (1959). Article 1, section 9, provides that “[i]n all criminal prosecutions the accused hath a right to be heard by himself and his counsel ..., and, in prosecutions by indictment or information, a speedy public trial by an impartial jury,” and article 1, section 11, provides that “[a]ll courts shall be open.” Pa. Const. Art. 1, sec. 9, 11. And see, Commonwealth ex rel. Paylor v. Cavell, supra (Defendant has right to public trial, and deprivation thereof is violation of Article 1, Sections 9 and 11 of the Pennsylvania Constitution and probably of the procedural due process clause of U.S. Constitution, Fourteenth Amendment).

-4-

The Commonwealth argues that appellant was not denied his right to a public trial because the selection of the jury is not part of the trial. Brief for Commonwealth at 11. In Pfleeger v. Swanson, 229 Or. 254, 367 P.2d 406 (1961), the court had to decide whether an application for a motion made immediately after the swearing of the jury, but before any evidence was presented, was timely made where a statute required such a motion to be made “before trial.” To help solve this question the court observed that “[t]he word ‘trial’ is used, both in legal parlance and in statutes, to mean different things.” Id. at 257, 367 P.2d at 408. It then pronounced that “[although the voir dire examination is a part of the trial, it is not a part of the trial of the facts,” id. at 257, 367 P.2d at 408, and went on to interpret the statutory phrase “before trial” as meaning “before the trial of the facts,” not before the “trial” itself, which begins with the voir dire. And so the motion was, in this way, held timely.

The problem, however, is not what is the definition of “trial” but what should be the definition, and to solve that problem, one must consider the reasons for the guarantees of a public trial. It is of course possible, as the court in Pfleeger said, to define trial “to mean different things.” But if one keeps in mind the reasons for the constitutional guarantee of a public trial, one will see that “trial” should not be defined as “the trial of the facts,” meaning by that to exclude the process of selecting the jury. For “the facts” are what the jury says they are. (One is reminded of the baseball umpire who said that some pitches were balls and some strikes, but they weren't anything until he called them.) Defining “trial” as “trial of the facts” therefore begs the question.

The Court of Appeals for the Ninth Circuit has recently spoken to this issue, in United States v. Brooklier, 685 F.2d 1162 (1982). There the government argued that the public’s First Amendment right to access to criminal proceedings applies only to “trials,” and that voir dire is not part of the trial. Rejecting this argument, the court said:

Under current practice, voir dire is normally conducted in open court. No evidence has been cited that historical practice was to the contrary.
There can be no doubt of the importance of public scrutiny of the jury selecting process to the effective functioning of the government as well as of the judicial system itself. The meticulous care devoted to securing a fair and impartial jury exemplifies the search for evenhanded justice characteristic of our system of criminal justice. Public access to the process will heighten public respect for that system. At the same time public scrutiny will encourage those who participate in the jury selection process to enhance the quality of the process and safeguard its integrity.

Id. at 1167.

It is true that Brooklier involved the First Amendment rather than the Sixth, but, as the court in Brooklier remarked, “[njothing would seem to turn upon” whether the public’s right of access is regarded as arising from the one amendment rather than the other. Id. at 1167. It is also true that in Brooklier the defendant sought exclusion of the public rather than, as here, opposing exclusion. But nothing turns upon that difference either. For whether “public trial” includes the process of selecting the jury cannot depend upon which party—the prosecution or the defendant—seeks to exclude the public.

Brooklier is only the most recent decision on point. There is ample other authority for the proposition that the guarantee of a public trial means that the process of selecting the jury must be public.

In Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), the validity of the trial court’s judgment was challenged “upon the ground that a part of the proceedings in the trial were conducted in the absence of the defendant.” Id. at 575-76, 4 S.Ct. at 203. To resolve this issue the Court had to apply a section of the Criminal Code of Procedure of Utah, which provided that in felony cases a defendant must be personally present at the trial. In Hopt, after the defendant challenged six jurors for bias, “triers” were appointed. The triers then took each “juror from the courtroom into a different room and tried the grounds of challenge out of the presence as'-well of the court as of the defendant and his counsel.” Id. at 577, 4 S.Ct. at 204. Writing for the Court, Justice HARLAN noted that trial counsel

insisted, in behalf of the defendant, that the action of the court in permitting the trial in his absence of these challenges of jurors was so irregular as to vitiate all the subsequent proceedings. This point is well taken.

Id. at 577, 4 S.Ct. at 204.

Justice HARLAN went on to explain that the purpose of the Utah Criminal Code provision in question was

to prevent any steps being taken, in the absence of the accused and after the case is called for trial, which involves his substantial rights ... and his life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers, in the selection of jurors.

Id. at 578, 4 S.Ct. at 204.

Justice HARLAN concluded his analysis by holding the following:

For every purpose, therefore, involved in the requirement that the defendant shall be personally present at the trial, where the indictment is for a felony, the trial commences at least from the time when the work of impaneling the jury begins.

Id. at 578, 4 S.Ct. at 204.

Hopt is of course a stronger case than the present case, for in Hopt everyone, including the defendant, was excluded from the process of selecting the jury, while here, only the public was. That factual difference, however, does not undermine the Court’s holding that “the trial commences at least from the time when the work of impaneling the jury begins.”

United States v. Sorrentino, 175 F.2d 721 (3d Cir.1949), cert. denied, 338 U.S. 868, 70 S.Ct. 143, 94 L.Ed. 532 (1949), reh. denied, 338 U.S. 896, 70 S.Ct. 238, 94 L.Ed. 551 (1949), is to the same effect as Hopt. There the court said that “[t]he constitutional guarantee [of the Sixth Amendment to a public trial] ... applies to the entire trial, including that portion devoted to the selection of the jury.” Id. at 722. The Commonwealth dismisses this as “mere dicta,” saying that Sorrentino “concerns exclusion of spectators during actual trial.” Brief for Commonwealth at 11-12. On the contrary, in Sorrentino it is stated that

the exclusionary order of the trial judge was relaxed on the last three days of the trial but ... it was enforced on the first day during which the jury was selected. The Government argues that since the public was admitted on the three days during which testimony was taken the defendant actually had a public trial within the meaning of the Sixth Amendment. The constitutional guarantee, however, applies to the entire trial, including that portion devoted to the selection of the jury. Accordingly it must be held that the defendant’s constitutional rights were violated by the enforcement of the exclusionary order on the first day of the trial unless those rights were validly waived by him.

Id. at 722.

Although the court in Sorrentino went on to hold that the defendant had in fact waived his right to a public trial, that holding was reached only after, and as a consequence of, the court’s holding that the guarantee of a “public trial” includes the process of selecting the jury.

We cited and followed Sorrentino in Commonwealth v. Bundridge, 254 Pa.Super. 126, 385 A.2d 558 (1978), where three judges held, with three judges concurring in the result, that the defendant’s motion under Rule 1100 was not filed “before trial,” and was therefore filed too late, when it was not filed until after the voir dire had been completed.

Finally, the conclusion that a “trial” must be held to include the process of selecting the jury is embodied in Rule 1117 of the Rules of Criminal Procedure, as follows:

(a) The defendant shall be present at the arraignment, at every step of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant’s absence without cause shall not preclude proceeding with the trial including the return of the verdict.

Pa.R.Crim.P. 1117.

Cf Commonwealth v. McLaurin, 292 Pa.Super. 392, 437 A.2d 440 (1981), where we held that counsel was ineffective for permitting a suppression hearing to be held in the defendant’s absence. See also People v. Teitelbaum, 163 Cal.App.2d 184, 206-207, 329 P.2d 157, 172, cert. denied, 359 U.S. 206, 79 S.Ct. 738, 3 L.Ed.2d 759 (1958) (public trial includes jury impanelment, opening statements, presentation of evidence and arguments); Wilhite v. Agbayani, 2 Ill.App.2d 29, 33, 118 N.E.2d 440, 442 (1954) (trial begins when jury called into box for examination of qualifications).

We therefore hold that appellant’s right to a public trial, under both the United States Constitution and the Pennsylvania Constitution, included the right to have the jury that was to try him selected in public.

-5-

The right to public trial is not, however, absolute; its exercise must be considered in relationship to other important interests. United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3d Cir.1969); United States v. Kobli, 172 F.2d 919 (3d Cir.1949); Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902 (1976). Thus in Commonwealth ex rel. Pay lor v. Cavell, supra, this court stated that a “portion of the public may be excluded to prevent overcrowding; to maintain proper decorum; or where special circumstances warrant, such as the exclusion of youthful spectators in the case involving scandalous or indecent matters which might be demoralizing to immature minds.” Id. 185 Pa.Super. at 182, 138 A.2d at 249. See United States v. Kobli, supra; Commonwealth v. Burton, 459 Pa. 550, 330 A.2d 833 (1974); Commonwealth v. Trinkle, 279 Pa. 564, 568, 124 A. 191, 192 (1924).

The further question we must answer, therefore, is whether the record discloses any interest, or reason, sufficient to support the lower court’s limitation of appellant’s right to a public trial. In United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3d Cir.1969), the court said that the propriety of a limitation on the right to a public trial must be tested by the standard of “strict and inescapable necessity.” Id. at 607. Whether that standard has been met will of course depend upon the circumstances of the particular case. United States ex rel. Lloyd v. Vincent, 520 F.2d 1272, 1275 (2d Cir.), cert. denied, 423 U.S. 937, 96 S.Ct. 296, 46 L.Ed.2d 269 (1975) (not error to clear courtroom for testimony of undercover agent to preserve his value to law enforcement agencies); United States ex rel. Laws v. Yeager, 448 F.2d 74, 81 (3d Cir.1971) (not error to exclude mother of witness who was testifying against his brother and was intimidated by mother’s presence); compare Commonwealth v. Hodge, 246 Pa.Super. 71, 369 A.2d 815 (1977) (not error to remove rape victim’s classmates from courtroom during victim’s testimony) with State v. Hensley, 75 Ohio St. 255, 256, 79 N.E. 462, 464 (1906) (order excluding the general public in anticipation of obscene testimony held too broad). And see Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (statute construed to require closure of rape and other sexual assault trials during testimony of victims who are minors struck down as violative of First Amendment). In no circumstances, however, is indiscriminate exclusion proper. United States v. Kobli, supra (judge cannot, without violating Sixth Amendment, indiscriminately exclude the public from a trial, but may only exclude those whose presence hampers court’s functioning).

We have already, in stating the case, quoted the lower court’s reasons for its order excluding the public from the courtroom during the selection of the jury. See pages 657 to 658, supra. There are four reasons. They fall far short of stating a “strict and inescapable necessity” for the court’s order.

The court’s first reason was that “we are operating in a Courthouse without any heat in the halls.” N.T. I at 9. We are not sure we understand this reason. Perhaps the court feared that because the halls were unheated, the public would come into the courtroom to keep warm, and so crowd the courtroom as to interfere with the conduct of the trial. However, the record shows that there were at least fifty empty seats in the courtroom. N.T. I at 10.

The court’s second reason was that “[w]e have no facilities large enough to accommodate a situation like that.” N.T. I at 9. If by this the court was referring to the possibility that the courtroom would be overcrowded, again, given the fifty empty seats, no basis for fearing that that might happen appears. In any event, celebrated trials—assuming that this was a celebrated trial—are often attended by a lot of people, with many others having to be turned away because the court room is not large enough. The fact that a courtroom cannot accommodate everyone is no reason for accommodating no one.

The court’s third reason was that “we are not going to have any intimidation of jurors during the time they are being selected.” N.T. I at 10. But the record discloses no reason to suppose that permitting the public to be present would have resulted in any intimidation. To the contrary, as the court in United States v. Brooklier, supra, observed, “[P]ublic scrutiny will encourage those who participate in the jury selection process to enhance the quality of the process and safeguard its integrity.”

The court’s fourth, and final, reason was that “[i]t hasn’t been the policy—it’s never been the policy in this Court to do that and you know it.” N.T. I at 10. If by this the court meant that it had never been its policy to allow jurors to be intimidated during the time they were being selected, again, there is no reason to suppose that permitting the public to be present would have resulted in any intimidation. If the court meant that it had never been its policy to permit the public to be present during the selection of the jurors, whatever the circumstances, we can only observe that the court’s policy was in violation of both the United States Constitution and the Pennsylvania Constitution.

The judgment of sentence is vacated and the case remanded for new trial.

JOHNSON, J., files a concurring statement.

JOHNSON, Judge,

concurring:

I whole-heartedly join parts 2 through 5 of the opinion in this case, on the issue of the right to jury selection in public.

I also agree that the failure to file a Rule 1925(b) statement of matters complained of in this case does not waive the objection to the lower court’s exclusion of the public during jury selection.

However, I disagree with my distinguished colleagues that the inquiry involves an analysis that is “equitable in nature.” Pennsylvania Rule of Appellate Procedure 1925(b) provides that a failure to comply with the rule “may be considered by the appellate court as a waiver of all objections____” Our supreme court has discussed the waiver provision of Rule 1925(b), and has stated that the waiver provision “is properly invoked only where failure to file a statement or omission from a statement of issues raised on appeal defeats effective appellate review.” Commonwealth v. Silver, 499 Pa. 228, 238, 452 A.2d 1328, 1333 (1982). See also Commonwealth v. Crowley, 259 Pa.Super. 204, 393 A.2d 789 (1978). Since defense counsel’s objection and the court’s ruling on it are in the record and were preserved for review, the question as to whether we should exercise our discretion is answered in appellant’s favor. Any further analysis of the sequence of events in the lower court is in my view unnecessary.

      . Appellant also argues that the lower court committed reversible error in permitting a person who had been hypnotized by the police to testify; in interfering with the conduct of the trial; in permitting certain evidence regarding a fingerprint; in permitting him only seven peremptory challenges; in refusing a requested missing-witness charge; and in refusing to require the Commonwealth to disclose the . name of an eyewitness informant. Appellant also argues that the Commonwealth by its peremptory challenges deliberately excluded members of his race from the jury. We do not reach any of these arguments.

      . This conclusion, and the discussion leading up to it, are not to be understood as excusing counsel for his unprofessional carelessness in failing to file and serve a properly entitled statement by the date specified by the lower court. It is counsel's obligation—in every case, but especially in a case so grave as this—to be meticulous in abiding by proper procedure. In another case the careless failure to abide by the rules might, when taken with the other facts of the case, lead to the conclusion that we should exercise our discretion to find waiver.


author: WIEAND, Judge:

text:
    455 A.2d 663
    COMMONWEALTH of Pennsylvania, Appellant, v. Rena A. WARNER.
    Superior Court of Pennsylvania.
    Argued March 3, 1982.
    Filed Dec. 17, 1982.
    Reargument Denied Feb. 23, 1983.
    Petition for Allowance of Appeal Granted June 2, 1983.

      Joseph W. Carroll, III, Assistant District Attorney, West Chester, for Commonwealth, appellant.
    Candace G. McCoy, Assistant Public Defender, West Chester, for appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

Rena Warner was charged with theft by deception and welfare fraud as a consequence of false statements made to obtain welfare payments in the total amount of $2,967.68. The trial court, on motion of the defendant, dismissed the general charge of theft on the grounds that Ms. Warner could be prosecuted only for violating the specific welfare fraud provision of the Public Welfare Act. The Commonwealth appealed. We affirm.

The welfare funds in question were paid to appellee in the form of full public assistance from January, 1978 to June, 1979. During that period, she failed to report any other income. In fact, she was receiving income from employment by Chester County Headstart, Inc. The Commonwealth has charged that appellee knew she was required to report her earnings but willfully misrepresented her employment status in order to defraud the Commonwealth.

At the outset, appellee challenges the Commonwealth’s right to appeal an order dismissing one count of a two count information. The order has terminated finally a prosecution for theft and is based solely on a question of law. The order, therefore, is appealable, and this Court has jurisdiction to decide the substantive issue. See: Commonwealth v. Wimberly, 488 Pa. 169, 172, 411 A.2d 1193, 1194 (1979); Commonwealth v. White, 482 Pa. 197, 199 n. 2, 393 A.2d 447, 448 n. 2 (1978); Commonwealth v. Minton, 288 Pa.Super. 381, 384 n. 1, 432 A.2d 212, 213 n. 1 (1981); Commonwealth v. Madroñal, 279 Pa.Super. 57, 60, 420 A.2d 742, 743 (1980); Commonwealth v. Glendening, 262 Pa.Super. 357, 359, 396 A.2d 793, 794 (1979); Commonwealth v. Mader, 253 Pa.Super. 58, 59-60, 384 A.2d 974, 975 (1978).

The crime of theft by deception is defined at 18 Pa.C.S.A. § 3922 as follows:

(a) Offense defined.—A person is guilty of theft if he intentionally obtains or witholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
(2) prevents another from acquiring information which would affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.

The provision of the Public Welfare Code of June 13, 1967, which appellee is charged with violating, can be found at 62 P.S. § 481(a). This section provides:

(a) Any person who, either prior to, or at the time of, or subsequent to the application for assistance, by means of a wilfully false statement of misrepresentation, or by impersonation or other fraudulent means, secures, or attempts to secure ... assistance ... under this article shall be guilty of a misdemeanor----

“It is the policy of the law not to permit prosecutions under the general provisions of a penal code when there are applicable special penal provisions available.” Commonwealth v. Vukovich, 301 Pa.Super. 111, 117, 447 A.2d 267, 269 (1982), citing Commonwealth v. Brown, 346 Pa. 192, 199, 29 A.2d 793, 796-97 (1943). This general policy, of course, should not be applied rigidly and mechanically where there is a clearly expressed legislative intent to the contrary. However, the fact that the legislature has enacted a specific statute covering substantially the same misconduct as a general law is a strong indication that the legislature intended prosecutions to be for violating the specific provision only. In most instances, an overlap of provisions will be determinative of the legislative intent.

The Commonwealth argues strenuously in the instant case that both prosecutions should be permitted to proceed because the crime of welfare fraud is complete as soon as a false statement is made for the purpose of obtaining welfare benefits; whereas, the offense of theft by deception is not complete until benefits are received as a result of those false statements. This argument is frayed. In fact, the specific crime of welfare fraud, in every conceivable circumstance, has been made criminal also by the general provisions of the Crimes Code. If a person secures or attempts to procure assistance by means of a false statement, he or she is guilty of welfare fraud. This result obtains regardless of the nature of the fraud practiced. However, the person is then guilty also of violating the general provisions of the Crimes Code. If he or she secures assistance by fraudulent means, the offense is theft by deception; if the attempt is unsuccessful and the person fails to obtain assistance, the offense of criminal attempt has been committed. See: 18 Pa.C.S. § 901(a).

Contrary to appellant’s argument, moreover, it is incorrect to assume that the general rule is inapplicable whenever the general statute contains an element not contained in the specific statutory offense. Rather, a court must consider the context in which the statutes were written and determine whether the legislature intended that the specific statute preclude prosecution under the general statute. This approach has been adopted and is now followed by the courts of California. See: People v. Jenkins, 28 Cal.3d 494, 170 Cal.Rptr. 1, 620 P.2d 587 (1980). It is consistent with the provision of the Uniform Statutory Construction Act which directs that special statutory provisions shall prevail over general statutory provisions “unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.” 1 Pa.C.S. § 1933. See also: Commonwealth v. Bidner, 282 Pa.Super. 100, 422 A.2d 847 (1980).

Several courts which have considered the specific issue now before this Court have reached varying results. In State v. Kalvig, 296 Minn. 395, 209 N.W.2d 678 (1973), the Minnesota Supreme Court held that prosecution for welfare fraud could proceed only under the specific provisions of the welfare law. (This result, however, was subsequently modified by statute). See also: Valdez v. State, 553 S.W.2d 110 (Tex.Cr.App.1977); Jones v. State, 552 S.W.2d 836 (Tex.Cr.App.1977). Other courts have allowed prosecution under either a general or specific statutory provision. See: State v. Moore, 174 Mont. 292, 570 P.2d 580 (1977); People v. Brooks, 65 Ill.2d 343, 2 Ill.Dec. 726, 357 N.E.2d 1169 (1976); Smith v. State, Fla.App., 383 So.2d 959 (1980); Commonwealth v. McKinney, Ky.App., 594 S.W.2d 884 (1980). Indiana expressly allows prosecution under any and all statutes that have been violated. Beech v. State, 162 Ind.App. 287, 319 N.E.2d 678 (1974).

As we have observed, however, there is evident in Pennsylvania a strong policy which precludes prosecutions under general provisions of a penal code when special penal provisions are applicable. Thus, in Commonwealth v. Vukovich, supra, we held that prosecution for attempting to purchase a controlled substance by using a forged prescription had to be brought under the specific provisions of the Pharmacy Act and could not proceed under the general forgery section of the Crimes Code. Similarly, in Commonwealth v. Bidner, supra, we held that conduct which simultaneously violated both the Crimes Code and a more specific provision of the Election Code had to be prosecuted under the specific provision of the Election Code. And, in Commonwealth v. Buzak, 197 Pa.Super. 514, 179 A.2d 248 (1962), we ruled that where the same acts violated both the false pretenses section of the Penal Code of 1939 and a specific provision of the Unemployment Compensation Law, the act could be prosecuted only under the provisions of the Unemployment Compensation Law. Finally, in Commonwealth v. Litman, 187 Pa.Super. 537, 144 A.2d 592 (1958), we held that a conviction for false pretenses could not stand because the acts of the defendant also violated and should have been prosecuted under the more specific provision of a statute making it criminal to obtain money by false pretenses from Blue Shield.

In the present case, there is no basis for finding a contrary legislative intent. The Public Welfare Code is a comprehensive enactment. It mandates complete and truthful applicant disclosure and provides specific penalties for violations. There is no suggestion to be found in the statute that prosecution for giving false information may also proceed under general provisions of the Crimes Code. Therefore, we are constrained to apply the decisive rule that a specific statute precludes prosecution under a general statute.

Order affirmed.

      . Act of September 27, 1961, P.L. 1700, § 8, 63 P.S. § 390-8.

      . 18 Pa.C.S. § 4101.

      . 18 Pa.C.S. §§ 4902, 4904.

      . Election Code, Act of June 3, 1937, P.L. 1333, Art. XVIII, § 1802, 25 P.S. §§ 3502, 3533.

      . Act of March 30, 1955, P.L. 6, No. 5, § 7, 43 P.S. § 871 (as amended).

      . Nonprofit Medical and Dental Service Corporation Act of 1939, June 27, P.L. 1125, § 17, 15 P.S. § 2851-1517 (repealed. Act of November 15, 1972, P.L. 1063, No. 271, § 5).


author: HOFFMAN, Judge: JOHNSON, Judge,

text:
    455 A.2d 667
    COMMONWEALTH of Pennsylvania v. Regis SCHULTZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 16, 1982.
    Filed Dec. 17, 1982.
    Reargument Denied Feb. 25, 1983.
    Petition for Allowance of Appeal Granted June 8, 1983.

      Andrew J. Achman, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that his guilty plea colloquy was defective in not apprising him of all the elements of robbery. We agree and, accordingly, reverse the judgment of sentence, permit appellant to withdraw his plea, and grant a new trial.

On July 22, 1978, appellant entered an Allegheny County grocery store and handed the cashier a note demanding money. During the ensuing struggle and flight, appellant’s gun discharged several times, wounding a bystander in the arm. Appellant was charged with robbery, recklessly endangering another person and three weapons offenses. He pled guilty to robbery and recklessly endangering in exchange for the Commonwealth’s dropping the weapons charges. After accepting the pleas, the lower court suspended sentence on recklessly endangering, but sentenced appellant to ten-to-twenty years imprisonment for robbery. In a subsequent Post Conviction Hearing Act petition, appellant alleged, inter alia, that his counsel had been ineffective in failing to perfect his appeal. The lower court agreed and allowed appellant to file post-verdict motions nunc pro tunc. In those motions appellant petitioned to withdraw his guilty plea alleging the colloquy had been defective. The lower court denied relief, prompting this appeal.

Appellant contends that his guilty plea colloquy was defective and thus his plea not understanding^ tendered because he was not informed of all the elements of robbery. Before a court may accept a plea of guilty, it must determine in an on-the-record colloquy that the plea is being voluntarily and understanding^ tendered. Pa.R.Crim.P. 319(a); Commonwealth v. Belgrave, 445 Pa. 311, 285 A.2d 448 (1971). “[F]or an examination to demonstrate a defendant’s understanding of the charge, the record must disclose that the elements of the crime or crimes charged were outlined in understandable terms.” Commonwealth v. Ingram, 455 Pa. 198, 203-04, 316 A.2d 77, 80 (1974). Accord, Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976). “The failure to outline the nature of the offense to [a defendant] on the record destroy[s] the knowing and intelligent nature of [his] guilty pleas [and] constitute^] a manifest injustice which mandate[s] that [the defendant] be permitted to withdraw his pleas of guilty.” Commonwealth v. Copper, 273 Pa.Superior Ct. 393, 397, 417 A.2d 706, 708 (1980). During the present colloquy, appellant was instructed that

the government is charging at CC7804611 the crime of robbery. The government is alleging that on or about July 22 of 1978 you entered the A & P store and put store employees in threat of immediate serious bodily harm at the A & P store in the South Hills Village. Do you understand that that is a felony of the first degree and if found guilty you could receive a sentence of up to ten to twenty years on that.

(N.T. April 15, 1980 at 3-4). The crime outlined to appellant in the colloquy was not robbery but rather recklessly endangering another person. “A person is guilty of robbery if, in the course of committing a theft, he ... threatens another with or intentionally puts him in fear of immediate serious bodily injury.” 18 Pa.C.S.A. § 3701(a)(1)(h). (Emphasis added). Appellant was never informed that theft or attempted theft is a necessary element of the crime, and, thus, the court could not determine whether appellant knowingly and intelligently entered the plea. Accordingly, we must reverse the judgment of sentence and permit appellant to withdraw his guilty plea on the robbery charge.

Order reversed and new trial granted.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing, it is well-established that a showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified. Commonwealth v. Shaffer, 498 Pa. 342, 345, 446 A.2d 591, 593 (1982); Commonwealth v. Starr, 450 Pa. 485, 490-91, 301 A.2d 592, 595 (1973). Because I believe that the majority has failed to apply this standard, and because I am not persuaded that manifest injustice can be shown in the ipstant case, I must dissent.

The majority states that the trial court “allowed appellant to file post-verdict motions nunc pro tunc.” at 667. The order of the trial court granting post-conviction relief provided, in pertinent part, however:

... [I]t is hereby ORDERED ... that any and all post sentencing rights are hereby reinstated as the Court found that petitioner was abandoned by counsel following sentencing, (emphasis added).

It seems clear, therefore, that a showing of prejudice on the order of manifest injustice is the proper standard on this appeal.

The majority’s reliance on Commonwealth v. Copper, 273 Pa.Super. 393, 397, 417 A.2d 706, 708 (1980) is, I believe, misplaced. The facts in Copper are clearly distinguishable. There, the defendant had been charged initially with both statutory rape and corrupting a minor by giving alcoholic beverages to a fourteen-year-old ■ girl. Following a trial which resulted in a hung jury, plea bargains were initiated and the defendant entered separate pleas of guilty to two counts of corrupting a minor. One count charged that he had supplied alcoholic beverages to the child; the other alleged that he had engaged in sexual conduct with the child. In support of his request to withdraw his pleas of guilty, the defendant in Copper contended that he had not understood the charges to which he was pleading, and had not intended to plead guilty to any sexual contact with the child.

In reversing and remanding for a new trial, our court first noted that the offenses were not fully explained to the defendant during the guilty plea colloquy and that the elements of the crime of corrupting a minor were never outlined for him. Based upon the unique facts in Copper, we then said:

The failure to outline the nature of the offense to appellant on the record destroyed the knowing and intelligent nature of appellant’s guilty pleas. This constituted a manifest injustice which mandated that appellant be permitted to withdraw his pleas of guilty.

273 Pa.Super. at 397, 417 A.2d at 708.

In my view, Copper was not intended to establish, nor will it support, a per se rule relating to an on-the-record outline of the nature of an offense. There is no requirement that a defendant be given what amounts to a short law school course on the nature of the charges he faces. Commonwealth v. Shaffer, 498 Pa. at 355, 446 A.2d at 598 (Concurring Opinion, McDERMOTT, J.).

In the instant appeal, the majority bases its reversal of the judgment of sentence on the fact that appellant was never informed that attempted theft is a necessary element of the crime of robbery. At the hearing on appellant’s Post Conviction Hearing Act petition, appellant himself stated, in response to the Court’s question about what he was doing in the grocery store with a pistol, that he had intentions of securing money. Appellant pled guilty to the robbery charge in exchange for the Commonwealth’s dropping three weapons charges.

The thrust of appellant’s argument at the P.C.H.A. hearing was not to the effect that he did not understand theft to be an element of the crime of robbery, but rather that, since he had fled before obtaining the money which he had entered the store to steal, no theft had occurred. In this case, the theft was not completed only because there was a struggle followed by appellant’s flight after he had handed the store’s cashier a note demanding money. Robbery is defined as including an act threatening another with immediate serious bodily injury when the act “occurs in an attempt to commit theft or in flight after the attempt.” 18 Pa.C.S.A. § 3701(a)(2). The P.C.H.A. hearing judge was perfectly justified, therefore, in refusing to interpret appellant’s misconception of the law of robbery as a sufficient basis for a finding that the guilty plea was neither voluntary nor understandingly tendered.

The determination of the existence or non-existence of manifest injustice lies with the trial court in the first instance, Commonwealth v. Starr, 450 Pa. at 471, 301 A.2d at 595. Where, as here, the trial court had the benefit of both the record developed at the guilty plea colloquy as well as appellant’s own testimony at the P.C.H.A. hearing as to his state of mind and understanding at time of sentencing, and where an independent review of that complete record is not persuasive that appellant has met the higher standard for plea withdrawal after sentencing, I am unable to conclude that the trial court committed error in denying the pro se Petitioning for the Withdrawal of Guilty Pleading [sic].

The alleged injustices advanced by Appellant are that the guilty plea was not understandingly tendered in that (1) the formal elements of the crime of robbery were not fully understood by the appellant, and (2) a robbery had not occurred since the theft was not successful. As to these two contentions, the record disposes of the first and the law disposes of the second. Manifest injustice has not been shown as would necessitate a reversal. Since I would affirm the trial court, I must dissent.

      . Appellant has not challenged his guilty plea to recklessly endangering another person.

      . Contrary to the dissent, we hardly consider informing a defendant that theft is an element of robbery "amounts to a short law school course on the nature of the charges he faces.” Dissenting Opinion at 669.

      . The Commonwealth cites Commonwealth v. McDonald, 285 Pa.Superior Ct. 534, 428 A.2d 174 (1981) for the proposition that a defendant’s prior experience with the criminal system can cure a defective colloquy. In McDonald, however, this Court specifically declined to address that contention. Moreover, the colloquy requirements of Pa.R.Crim.P. 319(a) and Commonwealth v. Ingram, supra, are minimal standards. “Failure to satisfy these minimal requirements will result in reversal.” Commonwealth v. Dilbeck, 466 Pa. 543, 547, 353 A.2d 824, 827 (1976). Accord, Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977).
      The dissent believes the present case controlled by our Supreme Court’s recent decision in Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). Shaffer, however, did not "abolish the requirement laid down in Ingram that the elements of a crime must be explained on the record to the defendant prior to the acceptance of the guilty plea.” Id., 498 Pa. at 353-354, 446 A.2d at 597 (emphasis added). Rather, it held that under its very limited circumstances, when the defendant chose to plead guilty only after the Commonwealth had presented its entire case, he had been adequately apprised of the elements of the crime to satisfy Ingram. See Commonwealth v. Thompson, 302 Pa.Superior Ct. 19, 36, 448 A.2d 74, 82 (1982) (SPAETH, J. dissenting). This case lacks the special circumstances of Shaffer, and thus we are satisfied that it is controlled by Ingram and its progeny. Appellant contends that he is not guilty of and never intended to plead guilty to robbery because no theft was actually committed. Although appellant’s belief that a completed theft is an essential element of robbery is erroneous, it does indicate his misunderstanding of the crime he purportedly pled guilty to. By failing to follow the requirements of Ingram, the lower court failed to ensure that appellant knew the charges to which he was pleading guilty and thus it cannot be said that the plea was voluntarily and understandingly tendered.

      . Order of Court, Honorable George H. ROSS, dated March 26, 1981, filed March 30, 1981, Commonwealth v. Schultz, Court of Common Pleas, Allegheny County, Criminal Division, No. CC 7804611.