text:
    444 A.2d 1257
    COMMONWEALTH of Pennsylvania v. James John IANCOVETTI, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1981.
    Filed April 23, 1982.

      Sallie Ann Radick, Pittsburgh, for appellant.
    Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Appellant was convicted of driving under influence of alcohol or controlled substance by a jury and at the same proceeding, convicted of accidents involving damages to unattended vehicle or property by the judge as fact finder. He was sentenced for the conviction on driving under the influence to pay a fine of five hundred dollars, one year probation and required to attend the Butler Alcohol Countermeasure Program. On the damages to the unattended vehicle or property conviction he was sentenced to pay a fine of twenty-five dollars and assessed four points.

Five issues are raised by Appellant, of which only the first need be addressed because of our determination to reverse the convictions and dismiss Appellant.

The initial determination is whether the lower court erred in failing to grant Appellant’s motion for dismissal under Pa.R.Crim.P., Rule 1100 (Rule 1100).

A complaint was filed against Appellant on August 27, 1980, making the run date February 27, 1981. He purportedly made a general waiver of the 180 day rule on October 15, 1980, in order to be considered for the Accelerated Rehabilitative Disposition (A.R.D-) program. The A.R.D. application was refused on December 8, 1980 and Appellant was arraigned on January 5, 1981, with trial set for- March 17, 1981. On March 23, 1981, Appellant’s Motion to Dismiss under Rule 1100 was refused and trial commenced. Appellant was found guilty of both counts on that same day. At no time did the Commonwealth seek an extension as per Rule 1100(c).

Appellant argues that because no extension was granted and because Appellant’s purported waiver was invalid, he was not tried within the time prescribed by Rule 1100.

If the defendant is brought to trial more than 180 days after filing of a written complaint, the burden rests on the Commonwealth to prove that the time beyond the 180 day period was properly excluded from the run period by the timely filing of a petition to extend or by any other exclusionary provision of Rule 1100. Commonwealth v. Goldwire, 279 Pa.Super. 451, 421 A.2d 286 (1980).

The Commonwealth counters that (1) the waiver was valid, (2) trial could not have been scheduled for the January term because that time period was within the 30 day period designated for discovery and pre-trial motions and (3) Appellant was brought to trial as rapidly as was possible.

The waiver signed by Appellant stated:

WAIVER OF 180 DAY RULE UNDER RULE 1100
I understand that under Rule 1100 of the Pennsylvania Rules of Criminal Procedure I must be tried within 180 days of the date of my arrest.
I understand that if I am considered or accepted into the Accelerated Rehabilitative Disposition Program (ARD) and if I violate the terms of by [sic] probation or if I am arrested again, I can be taken off the Accelerated Rehabilitative Disposition Program (ARD) and tried on these charges.
I understand that in the event I am not accepted into the Accelerated Rehabilitative Disposition Program (ARD), any delay cause [sic] by the application for ARD may make it impossible to try my case within the 180 day period, but that my case will be scheduled for trial as soon as possible.
I have read the above and agree to waive the 180 day Rule for commencement of trial.
SIGNED: James Iancovetti
DATE: October 15. 1980
WITNESS:
David C. Summerville

Appellant signed the said waiver without the presence of counsel and without the benefit of it being explained to him on the record in open court. This waiver is apparently based on Pa.R.Crim.P. 178, which states in relevant part:

Rule 178. Hearing, Explanation of Program

Hearing on a motion for accelerated rehabilitative disposition shall be in open court in the presence of the defendant, his attorney, the attorney for the Commonwealth, and any victims who attend. At such hearing, the defendant shall be asked on the record whether he understands that:
(3) he must agree that if he is accepted into the program he waives the appropriate statute of limitations and his right to a speedy trial under any applicable Federal or State constitutional provisions, statutes or rules of court during the period of enrollment in the program, [emphasis added.]

This Rule clearly states that waiver of the right to a speedy trial is required only if Appellant is accepted into the program. No provision is provided for a general waiver of speedy trial rights for the mere application for acceptance into the A.R.D. program.

The language of the waiver itself belies its interpretation as valid. The conjunctive language found in the second paragraph, when read as a whole, is confusing. The third paragraph contains language relating to the impossibility of trial commencing within 180 days. Such is not the case here. Appellant was refused acceptance into the A.R.D. program on December 8, 1980. Approximately eighty days were then remaining within the 180 day period. No valid reason for failure to commence trial within this remaining period has been offered.

As to the two alternate reasons advanced by the Commonwealth for failure to commence trial within the period following December 8, neither is valid. Since no discovery or pre-trial motion was in fact filed, the Commonwealth cannot argue that trial could not have commenced during this period. Also, the bare averment that trial was commenced as soon as it could be done is insufficient. See Commonwealth v. Miller, 270 Pa.Super. 178, 411 A.2d 238 (1979).

We do not perceive this waiver as a continuance, where some or all of the period between October 15 and December 8, 1980 could be excluded under Rule 1100(d)(1) or (2). The waiver was invalid in toto, since the waiver form fails to conform to the clear provisions of Pa.R.Crim.P. 178 and is invalid as to its contents.

In view of the serious consequences which surround a general waiver of the right to a speedy trial, we find that the Commonwealth has failed to meet its burden of proof.

Instantly, Appellant was charged with a summary offense (75 Pa.C.S.A. § 3745) and a third degree misdemean- or (75 Pa.C.S.A. § 3731) in the same complaint. Rule 1100 applies, by its express language, only to court cases. See Rule 1100(a)(2). “Court case” is defined in Pa.R.Crim.P., Rule 3(f) as “a case in which one or more of the offenses charged is a misdemeanor, felony or murder of the first or second degree.” In Commonwealth v. Kujas, 291 Pa.Super. 411, 435 A.2d 1293 (1981), we determined that summary offenses charged in the same complaint as a misdemeanor offense are part of a court case for the purposes of Rule 1100. Therefore, both the summary and misdemeanor convictions must be dismissed in the instant case.

Judgment of sentence dated June 4, 1981 is reversed and Appellant discharged as to both convictions.

      . 75 Pa.C.S.A. § 3731. (third degree misdemeanor)

      . Id., § 3745. (summary offense)

      . Pa.R.Crim.P., Rules 175-185.

      . We are aware of the reference to such a situation in the amended Comments to Rule 1100, as amended, effective January 1, 1982. However, the Comment refers to a request by the Commonwealth attorney for such a waiver as opposed to the instant blanket waiver Appellant signed out of court. In any event, neither the amended Rule nor the amended Comment were effective at the time of the instant proceedings.

      . We are aware of the amendment to Rule 1100(d)(2), effective January 1, 1982 which states:
      (d) In determining the period for commencement of trial, there shall be excluded therefrom:

        (2) any period of time for which the defendant expressly waives Rule 1100;
      This amendment however, although not effective as to the facts in the instant case, would not alter our determination concerning the validity of the waiver.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    444 A.2d 1260
    COMMONWEALTH of Pennsylvania v. Harrison ROBINSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed April 23, 1982.

      Lester G. Nauhaus, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before PRICE, MONTEMURO, and DiSALLE, JJ.
   MONTEMURO, Judge:

This case is before the court on appeal from the entry of judgment of sentence. Appellant was convicted by a jury of Criminal Conspiracy and sentenced to five (5) years probation.

Appellant contends that the lower court erred in failing to consider an oral suppression motion which was raised at the time of trial. Alternatively, he argues that trial counsel was ineffective for failing to file the motion timely.

Appellant also contends that the admission of certain testimony of an alleged co-conspirator was reversible error and that therefore a new trial should be ordered. For the following reasons, we reverse.

The facts of the case are as follows:

Appellant and co-defendant Gales were arrested on December 13, 1974, after a search of their house produced certain controlled substance (drugs). A third co-defendant, Bundridge, was subsequently arrested. The Federal Drug Enforcement Administration agents conducted the search of the house at which time appellant and co-defendant Gales were arrested. The Federal charges were dismissed on May 26, 1976, after an assistant U. S. Attorney refused to provide defense counsel with a D. E. A. Form Seven (a record of the chain of custody of the drugs seized). State criminal proceedings were then initiated on June 17, 1976.

The alleged trial error that appellant raises relates to a discussion that D.E.A. agent Ramsey had with co-defendant Bundridge 13 days after the arrest of appellant and co-defendant Gales. Bundridge had not yet been arrested. In their discussion, Bundridge allegedly inculpated appellant in the conspiracy stating that appellant stored the drugs at his house for approximately $200.00 a month. Bundridge allegedly made these statements in an attempt to recover the drugs from agent Ramsey. Agent Ramsey, over the objection of trial counsel, testified as to this discussion at trial. Neither Bundridge nor the other defendants testified at trial.

Appellant contends that agent Ramsey’s testimony relating to Bundridge’s statement was hearsay which was not admissible under any recognized exception and that his right to confrontation was therefore violated. The Commonwealth contends that the testimony was properly admitted either under the co-conspirator exception to the hearsay rule or as a declaration against penal interest.

The hearsay exception that allows evidence of an out-of-court statement of one conspirator to be admitted against his fellow conspirators applies only if the statement was made in the course of and in furtherence of the conspiracy. There also must be evidence of a conspiracy other than the declaration in question. Commonwealth v. Ellsworth, 409 Pa. 505, 187 A.2d 640 (1963).

The question here is whether the conspiracy was legally terminated at the time of Bundridge’s discussion with agent Ramsey.

In Commonwealth v. Cofer, 251 Pa.Super. 528, 390 A.2d 1363 (1978), our court examined a situation in which physical evidence obtained from a co-conspirator some thirty minutes later, and testimony regarding flight from the scene of the crime, was admitted against defendant who was arrested at the scene. The defendant in that case contended that the conspiracy was terminated at the time of his arrest and that therefore evidence retrieved some thirty minutes later should not have been admitted against him. The court, in affirming the lower court’s ruling, stated that flight from the scene of the crime was properly part of the res gestae of the conspiracy and therefore in furtherance of it.

In Commonwealth v. Ellsworth, supra, the court was presented with a situation in which the Commonwealth introduced statements made by one incarcerated co-conspirator to a fellow prisoner which implicated the other co-conspirator who was incarcerated at another location. The lower court had taken the position that the conspiracy was still in existence because at the time the statements were made, there had been no split of the proceeds of the crime, the money was still in their joint possession, and one of the co-conspirators was trying to set up an alibi defense for both of them. Reversing the lower court, the Supreme Court stated that the conspiracy had been terminated certainly at the time of the arrest and incarceration of both co-conspirators. The court referred to the alibi scheme as a commencement of a new conspiracy.

In the case before us, the incarceration of Robinson, appellant, did not necessarily signal the termination of the conspiracy. See Commonwealth v. Cofer, supra, see also Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1974). However, the time interval between the incarceration of appellant and the inculpatory statements by Bundridge was approximately 13 days, not 30 minutes. Bundridge’s conversation with Agent Ramsey involved an attempt to retrieve the seized drugs. Bundridge was presumably acting alone in this venture, but even if he was acting in concert with another individual, his actions would clearly constitute the commencement of a new conspiracy. The fact that Bundridge’s attempt to bribe Agent Ramsey involved the same contraband does not in and of itself prolong the earlier alleged conspiracy.

The Commonwealth contends that even if Bundridge’s statement were deemed inadmissible under the co-conspirators exception, they should, nevertheless, be admissible as a declaration against penal interest.

In Commonwealth v. Hackett, 225 Pa.Super. 22, 307 A.2d 334 (1973), the court ruled that declaration against penal interest should be admitted into evidence when those statements

(1) exculpate the defendant from the crime for which he is charged;
(2) are inherently trustworthy in that they are written or orally made to reliable persons of authority or those having adverse interests to the declarant; and
(3) they are made pre-trial or during the trial itself. Id., 225 Pa.Superior Ct. at 29, 30, 307 A.2d at 338.

The statement of Bundridge sought to be introduced by the Commonwealth in this case was inculpatory, not exculpatory as mandated by guideline number one. It is well settled that the admission of such an inculpatory statement is in violation of the confrontation clause.

Furthermore, within the framework of criminal conspiracy, admitting the statements as a declaration against penal interest is doing nothing more than eliminating the “termination of conspiracy” stricture in the co-conspirator exception.

For the foregoing reasons, we conclude that Bundridge’s statement was inadmissible and its erroneous admission warrants the granting of a new trial.

Appellant next contends that the lower court erred in failing to consider his suppression motion. Alternatively, he contends that trial counsel was ineffective for failing to file the motion timely.

Counsel attempted to present his motion at the time of trial but was not allowed to do so by the trial judge. An untimely pre-trial motion shall be considered by the trial judge if the opportunity did not previously exist or counsel was unaware of the grounds for the motion. See Pa.R. Crim.P. 307, formerly Rule 305. There is nothing in the record to indicate any such excuse. Furthermore, appellant was represented by the Public Defender’s Office from the beginning of the case. Thus, as the record now stands, we perceive no error by the lower court judge.

However, we will not automatically deem counsel ineffective for failing to present the suppression motion timely. Counsel will not be deemed ineffective when he fails to pursue a meritless claim. Commonwealth v. Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979). In this case, however, because of the inadequacy of the record, it is not possible to conclude that the motion to suppress had arguable merit. The affidavit supporting the search warrant is not in the record and the lower court did not address the issue. We therefore remand to the trial court with direction to order the party in possession to produce the search warrant and affidavit and to conduct an evidentiary hearing on the question of whether the suppression motion had arguable merit. If the lower court determines that counsel was ineffective, appellant should be allowed to file a suppression motion nunc pro tunc.

The judgment of sentence is reversed and case remanded.

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

      . On appeal, appellant is represented by different counsel, he therefore may raise the ineffectiveness issue. Post-trial motions were filed as to the other issues. Because appellant did not brief these issues, the lower court judge summarily dismissed the motions and declined to write an opinion discussing them.

      . Appellant raises a third issue; that he was denied his right to speedy trial. We perceive no prejudice to appellant as a result of the delay in the institution of proceedings and therefore conclude that the contention is without merit.

      . The exception also applies to acts or physical evidence.

      . In Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344 (1974), Justice O’Brien approved of the test enunciated in Hackett supra. Justice Roberts, in his concurring opinion criticized the test as unduly restrictive on admissibility. He did not however criticize the first guideline which holds that the declaration must exculpate the defendant from the crime for which he is charged. His approval of that portion of the test is more readily apparent from a reading of that text of his opinion wherein he contrasts Commonwealth v. Antonini, 165 Pa.Super. 501, 69 A.2d 436 (1949) with Commonwealth v. Nash. “Antonini can easily be distinguished because there the declaration, a suicide note by a decedent, was offered to inculpate the accused; and therefore its introduction would violate the confrontation clause.” Nash, supra, 457 Pa. at 305, 324 A.2d at 348.

      . See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)

      . In the context of a conspiracy, a declaration against penal interest is an admission by a co-conspirator sought to be introduced against the defendant. In order to be admissible, it must also be made during or in furtherance of the conspiracy.

      . As stated in footnote 1, supra, the lower court judge did not write an opinion.

      . This court relinquishes jurisdiction.


author: MONTEMURO, Judge: WIEAND, Judge,

text:
    444 A.2d 1272
    BON HOMME RICHARD RESTAURANTS, INC., a Pennsylvania Corporation, Appellant, v. THREE RIVERS BANK AND TRUST COMPANY, a Pennsylvania Corporation.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1981.
    Filed April 23, 1982.
    Petition for Allowance of Appeal Denied Sept. 16, 1982.

      Howard T. Gilfillan, Pittsburgh, for appellant.
    Stephen Laidhold, Pittsburgh, for appellee.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Judge:

The instant matter was begun by complaint in equity on April 21,1975. There was activity on the docket until March of 1976. When the plaintiff-appellant filed notice of deposition in March of 1978, on a date slightly beyond the two-year period of inactivity provided for termination of cases under Local Rule 229(e), defendant-appellee filed a petition to strike requesting that the case be dismissed pursuant to that rule.

The appellant did not petition either for reactivation of the 1975 complaint or for permission to bring a second action. Such a petition would have been required to allege that: (1) the petition was timely filed; (2) the reason for the default was reasonably excused; (3) facts constituting a meritorious cause of action were alleged. International Telephone and Telegraph Corp. v. Philadelphia Electric Co., 250 Pa.Super. 378, 378 A.2d 986 (1977).

Instead, appellant simply began another action under another court term and number on January 29, 1981. The appellee filed preliminary objections, which were sustained, and the second complaint was dismissed by Order of March 24, 1981.

The various arguments appellant advances in refutation of the lower court’s action in dismissing the instant complaint all resolve themselves into a simple misunderstanding of the statutory language. Appellant bases his argument on wording in Thompson v. Cortese, 41 Pa.Cmwlth. 174, 182, 398 A.2d 1079, 1083 (1979) and lists as an “accord” the case of Commonwealth Department of Public Welfare v. Flowers, 46 Pa.Cmwlth. 326, 407 A.2d 896 (1979). Examination of the phrase as set forth in those two cases easily solves the problem posited. Thompson’s version is as follows:

However, if a plaintiff’s stale claim is dismissed, he may still petition the court to take off the non pros or bring a second action regardless of whether or not a formal entry of judgment has been made. (Emphasis as supplied by appellant’s brief)

Where the case supposedly in “accord” is reviewed, however, we find the rule set out as follows:

In Thompson, we recognized that Pa.R.J.A. No. 1901 sets forth a judicial policy to resolve pending cases as promptly as possible and, if a plaintiff’s stale claim is dismissed, he may still petition the court to (1) take off the non pros or (2) bring a second action. Flowers, supra, at 897, n.2.

Clearly, the alternatives do not permit unilateral action by the party seeking reinstatement of its action. A petition setting forth the three necessary allegations in excuse of delay must be submitted to the court.

Whether the party requests that the original case be reinstated or requests permission to start the same cause of action under a new term and number is evidently not material. What is important is that he shall give cogent reasons for his inactivity, and that the court shall determine whether permission to proceed will be forthcoming.

For a plaintiff to simply have the option of re-filing under a new number at will after the statute of limitations has run would make a mockery of the judicial policy Pa.R.J.A. 1901, supra, was designed to serve: to bring each pending matter to a final conclusion promptly and to remove from the docket the cases cluttering it for an unreasonable length of time.

Plaintiff in this case had a remedy to pursue, but simply chose to make an “end run” around the Rules. The court below was proper in refusing to permit this action.

Order affirmed.

WIEAND, J., files dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. I perceive no valid reason for refusing to permit a second action if the statute of limitations has not expired and the costs have been paid in the earlier action which was dismissed for inactivity. Cf. Thompson v. Cortese, 41 Pa. Commonwealth Ct. 174, 182, 398 A.2d 1079, 1082 (1979).

Pa.R.J.A. 1901, pursuant to which Allegheny County Rule 229(e) was adopted, is an administrative, house-keeping rule intended to eliminate stale cases from the judicial system where the parties have failed to proceed. The rule was not intended to achieve a substantive disposition of cases on their merits. This is apparent from the comment to Rule 1901, where it is said: “The rule has no effect on the substantive law and thus a termination effected pursuant to the rule will not necessarily foreclose further proceedings in the matter . . . . ”

This Court has previously compared an order dismissing a civil action for inactivity to an order entering a judgment of non pros. See International Telephone and Telegraph Corporation v. Philadelphia Electric Company, 250 Pa.Superior Ct. 378, 378 A.2d 986 (1977). In such cases, “the crucial fact is that the plaintiff . . . has never been afforded a day in court to present his claim on the merits, albeit due to his own delay or failure to appear. Nevertheless, it is well settled that in . . . these situations the plaintiff is permitted to commence an identical second action provided the statute of limitations has not expired and the costs . . . have been paid.” Commonwealth v. Bailey, 278 Pa.Superior Ct. 51, 54, 419 A.2d 1351, 1352 (1980). See also Brower v. Berlo Vending Co., 254 Pa.Superior Ct. 402, 386 A.2d 11 (1978); Gordon-Stuart Ltd. v. Allen Shops, Inc., 239 Pa.Superior Ct. 35, 361 A.2d 770 (1976); Bucci v. Detroit Fire & Marine Insurance Co., 109 Pa.Superior Ct. 167, 174, 167 A. 425, 427-28 (1933). Compare: Pa.R.C.P. 231(a). The same rule, in my judgment, is applicable where an action has been dismissed pursuant to local rule adopted under Pa.R.J.A. 1901.

The majority impliedly holds that the action is barred by the statute of limitations. My review of the complaint suggests otherwise. The action is in equity and seeks to terminate a current lease and recover damages for continuing violations thereof by the defendant lessor. Accordingly, I am unable to join the majority’s decision to affirm the summary dismissal of the action. Instead, I would reverse and remand for further proceedings in which appellee-defendant, if it chooses to do so, can plead the statute of limitations as an affirmative defense (See Pa.R.C.P. 1030) and the trial court, if the issue be properly raised, can determine the merits thereof.


author: POPOVICH, Judge:

text:
    444 A.2d 1274
    Carolyn SHANK, Appellant, v. Robert SHANK.
    Superior Court of Pennsylvania.
    Submitted Feb. 8, 1982.
    Filed April 23, 1982.

      Mineko S. Avery, Pittsburgh, for appellant.
    Glenn Douglas Dolfi, Pittsburgh, for appellee.
    Before BROSKY, CIRI-LLO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County granting appellant-mother’s petition to increase the amount of a prior order of child support.

The initial support order, which was entered on June 21, 1976, directed appellee-father to pay $60.00 per month for the support of the parties’ only child, a minor son. In July, 1980, appellant, the mother and custodial parent, filed a petition to increase the amount of the order. This petition was granted, and an order increasing the amount of support to $100.00 per month was entered. This direct appeal by the mother followed.

On appeal, appellant-mother’s sole contention is that the lower court abused its discretion in increasing the original support order by only $40.00 per month. More specifically, appellant argues that the lower court erred in (1) failing to take into consideration the separate earnings of appellee’s second wife; (2) failing to consider the standard of living maintained by appellee for his second family; and (3) entering an inadequate and unreasonable support order. Because we are unable to render a proper evaluation of these claims on the basis of the record presently before us, we reverse and remand for a full evidentiary hearing.

To begin with, this court is obliged, on an appeal from an order of child support, to review the order in light of the following axiom:

“[T]he amount of a child support order is largely within the discretion of the trial judge .... A child support order must be fair, not confiscatory, and must be consistent with the parent’s station in life and customary standard of living, making due allowance for the reasonable living expenses of the parent.” Commonwealth ex rel. Cragle v. Cragle, 277 Pa.Super. 349, 352, 419 A.2d 1179, 1180-81 (1980) (citations omitted).

Accordingly, in evaluating support orders, our scope of review is limited to ascertaining whether there was sufficient evidence to sustain the order and whether there has been an abuse of discretion by the lower court. Berry v. Berry, 278 Pa.Super. 30, 419 A.2d 1340 (1980); Commonwealth ex rel. Hall v. Hall, 243 Pa.Super. 162, 364 A.2d 500 (1976). Where the record demonstrates that the lower court has failed to consider all factors relevant to the award of support, we will remand for a full evidentiary hearing. Pawol v. Pawol, 293 Pa.Super. 29, 437 A.2d 974 (1981).

Herein, because the lower court failed to consider certain factors in computing appellee’s ability to pay, we are prevented from determining whether the modified order of $100.00 per month was inadequate or patently deficient.

Initially, we note that requests for modification of child support orders are governed by the following principles:

“First, that ‘the party seeking to modify a support order bears the burden of demonstrating such a change of circumstances as will justify a modification,’ . . . second, that ‘only material and substantial changes in circumstances, as proven by competent evidence, will warrant modification of a support order,’ . . . and third, that ‘a modification may only be based upon facts appearing in the record which show such permanent change in circumstances as to require such modification ....’” Commonwealth ex rel. Stone v. Stone, 293 Pa. Super. 427, 430, 439 A.2d 185, 187 (1981).

At the hearing on appellant’s petition, appellee testified that he is employed as a driver for a distributing company and has a net income of $970.00 per month. According to his own testimony, appellee has remarried and is now supporting his second wife and their two minor children. However, the record is silent on the amount of his second wife’s income and also does not disclose to what extent, if any, her income is used to defray family expenses.

Appellant, on the other hand, receives from a public assistance program $172.00 per month for herself, $90.00 for her son, and $63.00 in food stamps, a total of $325.00 per month. Appellant testified that she recently underwent surgery to remove blood clots from her lungs, and, as a result of the surgery, “[is] not supposed to [work] but [is] going to school [full-time] anyhow.” (N.T. 8/27/80, p. 4). No evidence was introduced concerning appellant’s earning capacity. Appellant estimated the costs of supporting her son to be $274.59 per month.

After considering the above testimony, the lower court concluded, and we agree, that appellant demonstrated a change in circumstances sufficient to justify the increase in the first support order. In computing appellee’s ability to pay, however, neither the hearing officer nor the lower court inquired into the earnings of appellee’s second wile. Since Commonwealth ex rel. Travitzky v. Travitzky, 230 Pa.Super. 435, 440, 326 A.2d 883, 885 (1974), we have recognized that:

“[I]f the second wife [is] gainfully employed and if her earnings or a portion thereof [are] contributing] to the family budget, such facts would be relevant in determining the father’s ability to pay for his minor children.”

Here, with the exception of the statement that appellee’s second wife is employed, the record is devoid of any evidence regarding her earnings, or to what extent her income is used to defray family expenses. Absent this line of inquiry, we cannot obtain a true account of appellee’s ability to pay for the support of the parties’ minor son. See Commonwealth ex rel. Mainzer v. Audi, 266 Pa.Super. 122, 124, 403 A.2d 124, 125 (1979); Commonwealth ex rel. Travitzky v. Travitzky, supra.

Likewise, because the duty to support is one shared equally by both parents, we have held that the mother’s earning capacity is material to any court hearing on a petition for modification. Berry v. Berry, 278 Pa.Super. 30, 34, 419 A.2d 1340, 1342 (1980). The test to be applied “is not what [the mother’s] actual earnings are, but what her earning capacity is.”

In the instant case, appellant testified on the subject of her earning capacity as follows:

THE COURT: Is there any reason why [appellant] can’t work?
[APPELLANT]: I was just released from the hospital on Saturday.
BY THE COURT:
Q. For what?
A. Blood clots in the lungs. That can be verified.
Q. Have you worked in the past?
A. Yes.
Q. What kind of work have you done?
A. I am a student right now.
Q. Where are you a student?
A. Allegheny Community College.
Q. What are you studying?
A. EMT meaning emergency medical technician.
Q. How long do you have to go on that program?
A. It is two years.
Q. When did you start?
A. Well, I was supposed to start Saturday.
Q. What kind of work have you done in the past?
A. I worked in credit.
Q. Is public assistance helping you attend the Community College?
A. No.
Q. Are you under a doctor’s care now?
A. Yes.
Q. Did the doctor indicate to you whether you are able to work?
A. I am not supposed to but I am going to school anyhow. (N.T. 8/27/80, pp. 2-4).

On the basis of the above-quoted testimony, we must speculate as to “the contribution, [if any, appellant] is in a position to provide.” This we will not do. Conway v. Dana, 456 Pa. 536, 539, 318 A.2d 324, 326 (1974) (“[W]hen we consider the order to be assessed against the father, we must not only consider his property, income and earning capacity but also what, if any, contribution the mother is in a position to provide.”). While the lower court did not disclose why this obviously relevant consideration was not sufficiently examined, it did state that “[appellant] has an earning capacity that should be taken into consideration.” (Lower Court Opinion at 3, December 19, 1980, Record No. 33).

The result we reach today is consistent with what the lower court said: “This Court is not unaware that the record in this case is not as complete as it might have been and perhaps a remand could be considered in the interests of justice.” (Lower Court Opinion at 3, December 19, 1980, Record No. 33). Hence, in light of the lower court’s failure to evaluate all of the relevant factors necessary to determine the reasonableness of the modified order, we must remand for a full evidentiary hearing.

The Order of the court below is vacated and the matter is remanded for proceedings consistent with this opinion. Jurisdiction of this case is relinquished.

      . The instant support order is lower than the amount suggested for a parent with appellee’s net income under the Allegheny County Support Guidelines. These guidelines would require a parent with a net income of $970.00 per month to contribute $190.00 per month (± $50.00) to the support of a minor child.
      This deviation was explained by the Hearing Officer as follows: “[Appellee] has two children of a current marriage to support. [Appellant] has worked in the past, but indicates that she is not working presently because of a recent hospitalization for a blood clot on her lung and because she is scheduled to attend CCAC [Community College of Allegheny County] to study to be an emergency medical technician.” (Hearing Officer’s Recommendation, Record No. 26).

      . The lower court properly opined that the earnings of appellee’s second wife were “obviously a relevant factor . . .. ” However, it concluded that any challenge to its failure to consider the second wife’s earnings had been waived because appellant “did not raise the matter at the hearing.” (Lower Court Opinion at 2, December 19, 1980, Record No. 33). We find no such waiver. In Commonwealth ex rel. Hall v. Hall, 243 Pa.Super. 162, 364 A.2d 500 (1976), we said: “[a]lthough appellant failed to explore to what extent the second wife was contributing to defray the household expenses ... this matter should be further developed [on remand] so that the court below will have the benefit of all relevant information in ascertaining the appellee’s true ability to pay support.” Id., 243 Pa.Superior Ct. at 167 n. 5, 364 A.2d at 502 n. 5 (emphasis added).


author: HOFFMAN, Judge: WATKINS, Judge,

text:
    444 A.2d 1278
    COMMONWEALTH of Pennsylvania David WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 19, 1981.
    Filed April 23, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in denying his suppression motion. We agree and, accordingly, reverse the court below, and remand for proceedings consistent with this opinion.

After being stopped by police while riding a bicycle appellant was charged with receiving stolen property. The lower court denied his suppression motion challenging the propriety of the stop. At trial, a Commonwealth witness identified the bicycle and testified that it had been stolen. Appellant was adjudicated delinquent and sentenced to probation. This appeal followed.

In a suppression motion, the Commonwealth bears a burden of proving by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h); Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977). If the suppression motion has been denied, the appellate court “will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Id., 473 Pa. at 566, 375 A.2d at 1262, quoting Commonwealth v. Kichline, 468 Pa. 265, 280, 361 A.2d 282, 290 (1976).

So viewed, the evidence indicated the following: On November 6, 1977, at 3:00 p. m., appellant, a juvenile, was riding a ten-speed Raleigh bicycle near Germantown Avenue and Gorgas Lane in Philadelphia. A police officer in a patrol car stopped him. The officer had been informed by “various people in the neighborhood” that appellant “was responsible for stealing quite a few ten-speed bikes” and that “one of many bikes received were [sic] in [appellant’s] possession.” After questioning appellant, the officer inspected the bicycle frame and discovered that the serial number had been filed off. He then questioned appellant’s mother and concluded that the bicycle had been stolen. The officer impounded the bike and released appellant. About two weeks later the officer learned of a summertime burglary involving a similar bicycle. The burglary victim subsequently identified the impounded bicycle as hers.

Appellant contends that the lower court erred in denying his suppression motion. We agree. In appropriate circumstances, a police officer is free to approach a citizen and address questions to him. See, e.g., Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). To stop or restrain a citizen, however, the officer must be able to “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Commonwealth v. Williams, 287 Pa.Superior Ct. 19, 23, 429 A.2d 698, 700 (1981), quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). Accord, Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). The encounter is a “stop” that must be justified by the Terry standard if, under all the circumstances, “a reasonable man, innocent of any crime, would have thought [he was being restrained] had he been in the defendant’s shoes.” Commonwealth v. Jones, 474 Pa. 364, 372-73, 378 A.2d 835, 840 (1977) (citation and footnote omitted), cert. denied, 435 U.S. 947, 98 S.Ct. 1533, 55 L.Ed.2d 546 (1978). Though the line of demarcation between a “stop” and a mere approach cannot be precisely drawn, factors such as whether the officer makes a show of authority or exercises force, the officer’s demeanor and manner of expression, the location, and the content of any interrogatories or statements are relevant to the determination. Id. See, e.g., Commonwealth v. Greber, 478 Pa. 63, 385 A.2d 1313 (1978) (plurality opinion) (blocking defendant’s automobile a stop); Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977) (three officers approaching defendant not a stop); Commonwealth v. Stewart, 257 Pa.Superior Ct. 334, 390 A.2d 1264 (1978) (officer’s command after identifying self a stop). In the instant case, the officer was traveling in a patrol car, appellant was riding a bicycle, and the stop occurred on the street. When asked to explain the circumstances the officer responded only that he “stopped the boy on the street.” Under these circumstances, we must conclude that a reasonable, innocent person in appellant’s shoes would not feel free to leave.

Having determined that a “stop” occurred, we must decide whether the officer could “point to specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the intrusion.” Terry v. Ohio, supra 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. Accord, Commonwealth v. Williams, supra; Commonwealth v. Galadyna, 248 Pa.Superior Ct. 226, 375 A.2d 69 (1977); Commonwealth v. Ferraro, 237 Pa.Superior Ct. 268, 352 A.2d 548 (1975). If the officer cannot point to such facts, the stop is unjustified. See Commonwealth v. Jones, supra (defendant merely walking, breaking no law when observed); Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975) (automobile being lawfully driven); Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973) (defendant’s fleeing on sight of police officers does not justify stop); Commonwealth v. Hicks, supra (informant’s description too vague); Commonwealth v. Cruse, 236 Pa.Superior Ct. 85, 344 A.2d 532 (1975) (informant’s tip lacked indicia of reliability, only described defendant and auto, not any criminal activity). The stop may be justified if the “police officer observes usual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry v. Ohio, supra 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. Alternatively, the officer may obtain sufficient information from an informant or from his personal knowledge that, when coupled with the circumstances, gives rise to a reasonable suspicion that the appellant is presently involved in criminal activity. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (anonymous informant plus corroborating circumstances); Commonwealth v. Stewart, supra (appellant resembled known prison escapee); Commonwealth v. LeSeuer, 252 Pa.Superior Ct. 498, 382 A.2d 127 (1977) (anonymous informant plus corroborating circumstances). Anonymous informants’ tips completely lacking in indicia of reliability will not justify a Terry stop. Commonwealth v. Cruse, supra, 236 Pa.Super. at 91, 344 A.2d at 535 (further investigation and corroboration needed). See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1969). Nor will common rumor or report, standing alone, justify a stop, for “[ajnything else would invite instrusions upon constitutionally guaranteed rights based on nothing more than inarticulate hunches, a result [courts have] consistently refused to sanction.” Terry v. Ohio, supra 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. Ordinary, everyday conduct on the street, in contrast to atypical activity, does not provide needed corroboration. Cf. Commonwealth v. Mackie, 456 Pa. 372, 320 A.2d 842 (1974) (defendant carrying portable TV and field glasses in daylight on street in high crime area justified brief stop but not arrest). That various people in the neighborhood had told the officer that appellant was responsible for stealing several ten-speed bikes and that he possessed one of them, merely relates a common report. The officer gave no indication of his informants’ reliability. He knew of no complaint concerning the particular bicycle appellant was riding. Appellant was breaking no traffic law, nor was he engaging in any unusual activity. He was merely riding an ordinary ten-speed bicycle in broad daylight on a public street. Under these circumstances, we find that the officer lacked an adequate justification for the stop. Accordingly, the lower court erred in denying appellant’s suppression motion. We must therefore reverse and remand for proceedings consistent with this opinion.

So ordered.

WATKINS, J., files a dissenting opinion.

WATKINS, Judge,

dissenting:

I respéctfully dissent.

In the instant case the officer stopped the defendant while he was operating a stolen bicycle. Upon doing so the officer observed that the serial number of the bicycle had been forcibly removed from the frame of the bicycle. Prior to stopping the defendant, the officer had been investigating bicycle thefts in the area and had been informed that the defendant had been involved with stolen bicycles. While the information which the officer had when he stopped the defendant to talk to him may not have been enough to arrest him it certainly justified the intermediate step of stopping the defendant rather than ignoring him. See Commonwealth v. LeSeuer, 252 Pa. Superior Ct. 498, 382 A.2d 127 (1977) [Allocatur denied—May 3,1978]. The Fourth Amendment to our Constitution does not require a police officer “who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape”. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1977).

I would affirm the defendant’s adjudication as based upon properly seized and sufficient evidence.

      . The bicycle was never introduced into evidence.


author: HOFFMAN, Judge:

text:
    444 A.2d 1281
    COMMONWEALTH of Pennsylvania ex rel. Dorothy K. LUTZ v. J. Elmer LUTZ, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1981.
    Filed April 23, 1982.

      Daniel E. P. Bausher, Reading, for appellant.
    David S. Rasner, Philadelphia, for appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order directing appellant to pay support to his appellee-wife and a judgment entered pursuant to that order. For the reasons that follow, we: (1) vacate the order of March 27, 1981 and the judgment entered April 9, 1981; and (2) reinstate and affirm the order of November 2, 1979.

Following their marriage on December 24, 1974, the parties resided in the second-floor apartment of appellant’s house, adjacent to his funeral home. Marital difficulties arose in 1975, stemming in part from appellant’s manic depressive condition and his purported impotence. The parties moved to a lavish, newly-constructed home at a local country club in November, 1976. Despite the new surroundings, appellant remained depressed and despondent. Three months later, the parties returned to the first-floor apartment of appellant’s house, where their relationship deteriorated further. Appellant refused to discuss their marital problems. He also refused to socialize or entertain visitors. He accused appellee of being “not Godly,” and wrote down the seven deadly sins and asked appellee where she fell with respect to them. In October, 1977, appellant invited a young couple he had met at Alcoholics Anonymous into the second-floor apartment. Shortly thereafter, appellant moved in with the couple. Later that month, appellant accused appellee of being a drug addict and of trying to poison him. He also informed her that she was part of his illness and that God had told him that their marriage was “no good.” After consulting her doctor, appellee left the marital residence on October 24, 1977 and instituted this action for support. After a series of hearings, the lower court, on November 2, 1979, issued findings of fact, conclusions of law and an order directing appellant to pay appellee $300 per week in support retroactive to April 28, 1978. Appellant filed exceptions to the findings and order, and the lower court ordered argument before the court en banc. On August 21, 1980, the lower court, sua sponte, ordered appellant to show cause why his exceptions should not be stricken as unauthorized by the Rules of Civil Procedure. The lower court subsequently determined that its order of November 2,1979 was final and that no exceptions could be filed. It decided, however, to treat appellant’s exceptions as a petition for reconsideration, and held argument thereon. On March 27, 1981, the lower court issued new findings of fact, and an order requiring appellant to pay $300 per week from April 28, 1978 until January 1, 1979, and $350 per week thereafter. This appeal followed.

Appellant contends first that the lower court erred in holding that exceptions were precluded by the Rules of Civil Procedure. We agree. “There is no question but that exceptions must be filed to a support order to preserve objections for appeal.” Paul v. Paul, 281 Pa.Superior Ct. 202, 210 n.11, 421 A.2d 1219, 1223 n.11 (1980). See also Commonwealth v. Bankert, 295 Pa.Superior Ct. 423, 441 A.2d 1304 (1982). By treating appellant’s exceptions as a petition for reconsideration, however, the lower court, in fact reviewed its decision in light of appellant’s exceptions. Accordingly, rather than remanding the matter to allow the lower court to entertain appellant’s exceptions, we will review the lower court’s reconsideration insofar as it responds to the issues raised by the exceptions.

“Our standard of review in support cases is limited, and a support order, if supported by competent evidence, will not be reversed absent an abuse of discretion by the lower court.” Commonwealth ex rel. Kinsey v. Kinsey, 277 Pa.Superior Ct. 156, 158, 419 A.2d 708, 710 (1980). Because “the trial judge who sees and hears the witnesses is in a better position than the Superior Court to decide the issue on its merits,” this Court’s function is to determine whether there is sufficient evidence to sustain the lower court’s findings of fact or whether the lower court has misapplied the law. Commonwealth ex rel. Friedman v. Friedman, 223 Pa.Superior Ct. 66, 67, 297 A.2d 158, 159 (1972). See also Commonwealth ex rel. McNulty v. McNulty, 226 Pa.Superior Ct. 247, 251, 311 A.2d 701, 703 (1973).

Appellant contends that the lower court abused its discretion in finding that appellee had made a good faith offer to return. We disagree. It is well-settled that where parties are separated, “the party who would resume marital relations carries the burden of proving by clear and convincing evidence that [she] made a bona fide offer of reconciliation.” Clark v. Clark, 172 Pa.Superior Ct. 5, 7, 92 A.2d 236, 237 (1952). See also Urbanski v. Urbanski, 206 Pa.Superior Ct. 329, 213 A.2d 219 (1965). “Broad discretion is lodged in the court below in determining the bona fides, which is the very essence of the offer.” Commonwealth ex rel. Kenny v. Kenny, 169 Pa.Superior Ct. 152, 153, 82 A.2d 552, 553 (1951). Moreover, the good faith and sincerity of an offer of reconciliation are often best measured by the parties’ conduct before and after the hearing. Commonwealth ex rel. Miller v. Miller, 209 Pa.Superior Ct. 196, 223 A.2d 917 (1966). At an April 28, 1978 hearing, appellee offered to return to the marital home provided appellant continued on his medicine. Two days after the hearing, she informed appellant, through counsel, that she was prepared to return unconditionally. Appellant, however, doubted the viability of the relationship and suggested divorce. Appellee replied that she had no intention of terminating the marriage, and reiterated her desire to immediately return to appellant. Under these circumstances, we cannot find that the lower court abused its discretion in finding appellee’s offer to return genuine.

Appéllant contends next that the lower court abused its discretion in finding appellee presently unable to work. We disagree. Appellee’s treating physician testified that she was physically unable to work because of blood pressuré variations, mild congestive heart failure resulting from high blood pressure, ankle edema, and migraine headaches. Another physician, who had examined appellee at appellant’s request, testified that appellee’s blood pressure was in the high normal range, but that she was suffering from edema and tension headaches. He further opined that until her headaches were treated, she would not be able to concentrate or “be up and about.” Additionally, an independent physician, who examined appellee at the court’s request, reported that “physically, [appellee] is probably capable of returning to her previous work as an LPN; however, emotionally, she is not.” Thus, contrary to appellant’s assertion, all medical evidence presented showed appellee to be presently unemployable. Appellant’s contention is simply unsupported by the record.

Appellant contends that the lower court erred in setting his support obligation at $300 per week from April 26, 1978 until January 1, 1979, and $350 per week thereafter. To the extent that the lower court modified the support to $350 per week, we agree. The function of a court in a proceeding for support is not to punish a husband, but to fix an amount which is reasonable and proper for the comfortable support and maintenance of his wife. Commonwealth ex rel. Gitman v. Gitman, 428 Pa. 387, 395, 237 A.2d 181, 186 (1967). In determining the appropriate amount of support, the court must look to the defendant’s property and earning capacity, as well as the parties’ station in life. Commonwealth ex rel. McGavic v. McGavic, 222 Pa.Superior Ct. 246, 249, 294 A.2d 795, 797 (1972). Although a support order for a wife alone may not exceed one-third of the husband’s earning capacity, the maximum is lifted when children are also receiving support. Commonwealth ex rel. Gitman v. Gitman, supra; Commonwealth ex rel. Litsky v. Litsky, 214 Pa.Superior Ct. 215, 251 A.2d 729 (1969); Commonwealth ex rel. Iezzi v. Iezzi, 200 Pa. Superior Ct. 584, 190 A.2d 334 (1963).

In its November 2, 1979 order, the lower court found that appellee required and appellant could afford $300 per week. The court determined that the parties had lived a comfortable existence throughout their cohabitation as a result of appellant’s sizeable income from his funeral parlor. The court also found that appellee was unable to work. We are satisfied that the lower court did not abuse its discretion in setting appellant’s support obligation at $300 per week.

In response to appellant’s exceptions, the lower court included certain facts omitted in its initial findings of fact, and affirmed its original order finding appellee in need of, and appellant capable of providing $300 per week. Then, however, based solely upon evidence of appellant’s 1979 income submitted after the first order, the lower court raised appellant’s obligation to $350 per week as of 1979. As we have noted, the lower court erred in refusing to allow appellant to file exceptions, and in treating the exceptions as a petition for reconsideration. The only issues properly before the court were those raised in exceptions, and the only evidence properly before the court was that presented at the hearings. The court had no petition before it alleging changed circumstances thus enabling the court to accept more evidence and reevaluate the parties’ conditions. The court was required to rule on appellant’s exceptions based solely upon the evidence available to it at the time of the original order. By accepting new evidence and gratuitously raising appellant’s obligation, the lower court abused its discretion. Accordingly, we must vacate the order of March 27, 1981 modifying appellant’s support obligation, and the judgment entered thereupon, and reinstate the order of November 2, 1979.

Order of March 27, 1981 and judgment entered on April 9, 1981 are vacated. Order of November 2,1979 reinstated and affirmed.

      . This holding in Paul was abrogated by the promulgation of Pa.R. Civ.P. 1910.ll(k) (effective July- 22, 1981). Explanatory Note to Pa.R.Civ.P. 1910.11. The new rule of civil procedure is not applicable to this case.

      . In its reconsideration, the lower court, reversing its earlier ruling, held that appellee had good cause for leaving the marital residence. It did not, however, change the date the support order was to commence. Because appellant’s support obligation was set at the time of appellee’s good faith offer to return, we need not determine whether her original departure was proper, thus entitling her to support as of that date.

      . Appellant contends that the lower court failed to consider that appellee testified falsely. We disagree. Although the lower court specifically found that appellee had misrepresented her status as a registered nurse, it does not follow that it must disbelieve all of her testimony. It is well-settled that the finder of fact may accept or reject any portion of a witness’ testimony. Commonwealth v. Oates, 448 Pa. 486, 490, 295 A.2d 337, 339 (1972). We are satisfied that the lower court properly evaluated appellee’s credibility.

      . In response to appellant’s exceptions, the lower court found that appellant was financing the college education of two of his children from a prior marriage.


author: CERCONE, President Judge: WIEAND, Judge,

text:
    444 A.2d 1285
    COMMONWEALTH of Pennsylvania v. Melvin REED, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed April 30, 1982.

      Lee Mandell, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER and WIEAND, JJ.
   CERCONE, President Judge:

Appellant, Melvin Reed, takes this appeal from the order of the lower court denying appellant’s petition under the Post Conviction Hearing Act (PCHA) after a hearing. We do not reach the merits of this appeal because we find that the lower court has failed to include in the record its finding of fact and conclusions of law.

Pa.R.Crim.Pro. 1506 provides in relevant part:

When the court grants a post conviction hearing, it shall:
(5) cause all evidence adduced at the hearing to be recorded, file a statement of record setting forth its findings of fact and its conclusions of law.

In the instant case, the lower court failed to comply with the mandates of Rule 1506. One of the issues raised by appellant at the PCHA hearing and now before this Court was whether appellant was denied effective representation by competent counsel at trial when his counsel failed to object to certain allegedly prejudicial comments made by the prosecution in its closing comments to the jury. Although the hearing judge filed an opinion for appeal purposes, as is required by Pa.R.App.Pro. 1925, the opinion does not discuss the various instances of alleged prosecutorial misconduct raised by appellant. Instead, the opinion sets forth in the most general terms the law regarding the effective assistance of counsel and then, without specific application of the law, states the conclusion that trial counsel was not ineffective. This cursory treatment of the issue does not satisfy the mandate of either Pa.R.Crim.Pro. 1506 or Pa.R.App.Pro. 1925. Accordingly, we vacate the order of the lower and remand for findings of fact and conclusions of law. Appellant must be given the opportunity to address these findings of fact and conclusions of law.

Order of the lower court is vacated and case is remanded for the filing of an opinion stating findings of fact and conclusions of law. This Court does not retain jurisdiction.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. After an evidentiary hearing on appellant’s amended P.C.H.A. petition alleging ineffective assistance of trial counsel, the hearing court made a general finding that counsel had not been ineffective and dismissed the petition. I would affirm. Appellant failed completely to show the ineffectiveness of counsel which he alleged in his petition.

Melvin Reed, the appellant, was initially tried without a jury and found guilty of kidnapping, aggravated assault, and conspiracy following an incident in which eleven shots had been fired into the body of a person whose hands had been tied behind him with an electrical cord. A new trial was subsequently granted. The re-trial was held before the Honorable James T. McDermott and a jury, which again found appellant guilty. On direct appeal, this Court affirmed the judgment of sentence. Commonwealth v. Reed, 246 Pa.Super. 646, 372 A.2d 843 (1977). A petition for allocatur to the Supreme Court was denied; and a petition for habeas corpus was dismissed by the United States District Court for the Eastern District of Pennsylvania. Reed then filed a P.C.H.A. petition. Counsel was appointed, an amended petition was filed, and an evidentiary hearing was held. At the conclusion of the hearing, the court made a general determination that Reed had failed to show that trial counsel was ineffective and denied relief.

The burden of establishing that trial counsel had been ineffective was on appellant. Commonwealth v. Bundridge, 268 Pa.Super. 1, 3, 407 A.2d 406, 408 (1979); Commonwealth v. Klaric, 263 Pa.Super. 286, 290, 397 A.2d 1212, 1213 (1979); Commonwealth v. Sweitzer, 261 Pa.Super. 183, 191, 395 A.2d 1376, 1380 (1978). In order to establish that counsel had been ineffective for failing to call a witness, appellant was required to prove not only that counsel had been informed of the witness’ identity, but that the witness’ testimony would have been helpful to his case. Commonwealth v. Adams, 465 Pa. 314, 321, 350 A.2d 412, 416 (1976); Commonwealth v. Williams, 274 Pa.Super. 464, 472-473, 418 A.2d 499, 503-504 (1980); Commonwealth v. Yarbough, 248 Pa.Super. 356, 361-362, 375 A.2d 135, 138 (1977).

Appellant contended that trial counsel had been ineffective for failing to interview pre-trial and call as a witness at trial the notary who had taken a pre-trial affidavit from the victim. The record discloses affirmatively that the victim’s statement was used extensively at trial by defense counsel to cross-examine the victim. Thus, it was unnecessary to call the notary to authenticate the statement; and appellant has not proved that the notary had any other relevant information.

In order to prove that counsel had been ineffective for failing to object to closing arguments by the prosecuting attorney, appellant was required to establish arguable merit in the objection which counsel failed to make. A review of the record establishes that the prosecutor’s comments were well within the bounds of legitimate argument and, unobjectionable. Counsel cannot be held ineffective if the action he failed to take would have been frivolous or fruitless. Commonwealth v. Wilson, 482 Pa. 350, 353, 393 A.2d 1141, 1143 (1978); Commonwealth v. Ashley, 277 Pa.Super. 287, 291, 419 A.2d 775, 777 (1980).

Appellant’s contention that trial counsel was ineffective was so completely devoid of merit in this case that I would accept the general finding of the hearing court and affirm its order denying relief.

      . The Post Conviction Hearing Act, 1966, Jan. 25, P.L. (1965) 1580, § 1, as amended by Act No. 1980-77, 19 P.S. §§ 1180-1 et seq.

      . Pa.R.App.Pro. 1925(a) provides:

        General rule. Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings on other matters complaiped of, or. shall specify in writing the place in the record where such reasons may be found.

      . The prosecuting attorney’s remarks were based on evidence produced at the trial and were not expressions of personal dpinion regarding appellant’s credibility, motive or guilt. Similarly, I perceive no overstepping of the bounds of propriety in the following statements by counsel for the Commonwealth:
      .. . you have a case here where a man is bound behind his back with electrical cord, taken to an alley and used as target practicé. Eleven shots fired into him. Eleven shots! (N.T.—152)
      . .. you can not tolerate the kind of activity which allows the defendant tó bound [sic] a man and hold him against his will for twelve hours, threaten to kill him, beat him about the face, and then take him and dump him into an alley, and them [sic] pump eleven bullets into his system. (N.T.—161)

        I’m sure he thought he would never hear or see of that person again ... Can you imagine his reaction? “My God, he’s not dead?” (N.T.—trial—161-62)


author: CERCONE, President Judge:

text:
    444 A.2d 1287
    COMMONWEALTH of Pennsylvania v. Joseph WISE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1981.
    Filed April 30, 1982.

      Francis J. Moran, Philadelphia, for appellant.
    Sarah Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, P. J., and McEWEN and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellant, Joseph Wise, takes this appeal from his conviction for robbery and related offenses. Appellant challenges his conviction on several grounds. We have found all of appellant’s arguments to lack merit and we affirm.

At approximately 9:30 a. m. on June 11, 1979, the Philadelphia Savings Fund Society Bank at Ridge Avenue and Green Lane was robbed by two armed men. While the robbery was in progress, a call went out over the police radio that a silent alarm had been sounded at the bank. Officer Thomas Schoen, who was then in his patrol car two blocks away from the bank, proceeded to the scene. Upon the officer’s arrival at the bank, Officers Schoen spoke with a man standing at the corner bus stop who said that he saw two black males run from the bank and drive off wards the east on Queen Lane towards Henry Avenue in a rust-colored automobile. Officer Schoen broadcast this information over his police radio before going inside the bank to interview the bank manager.

After speaking to the manager for about ten minutes, Officer Schoen broadcast a description of the two felons. The first was described as a negro male, medium brown complexion, approximately aged twenty-six, five feet eight inches tall and weighing 140 pounds. This individual also had black “bush-styled” hair and a small handlebar mustache. He was wearing a dark wool cap and a “print-type” shirt, with dark colored slacks. The second robber was described as a negro male with a dark complexion, approximately twenty-four years old, standing five feet seven inches tall and weighing one hundred and sixty pounds. He had close-cropped hair and heavy acne on his face, and was wearing a light colored jacket. The pair escaped in what was described as a rust colored auto with a white roof, possibly a Ford, driving east on Queen Lane toward Henry Avenue.

When this description was broadcast, Officer Joseph Sciarra was in the vicinity of Queen Lane and Henry Avenue. Officer Sciarra was proceeding along Queen Lane towards the aforementioned intersection when he spotted a rust and beige auto turn recklessly onto Queen Lane. Because it was raining heavily, the officer could not see the passengers in this vehicle. Said car was weaving in and out of traffic. Officer Sciarra was about a half a block away from the car when he observed this and he gave chase. The suspects’ car then turned at an intersection and Officer Sciarra temporarily lost sight of the vehicle. After making the turn, the officer saw the vehicle stopped and without a driver or passenger, with the door to the driver’s side open. One male was standing in front of the vehicle while appellant, carrying a tan jacket, was running down the street. Officer Sciarra remained in the patrol car and pursued appellant and in the course of pursuit he noticed appellant discard a dark object. The officer pulled next to appellant, ordered him to halt and appellant complied. Officer Sciarra arrested appellant and retrieved the dark object which appellant discarded. The object proved to be a .32 caliber KohnSouthern pistol with six live rounds.

Appellant first argues that there was no probable cause for his arrest. Probable cause exists where there are facts and circumstances within the arresting officer’s knowledge and of which he had reasonably trustworthy information sufficient in themselves to warrant a man of reasonable caution to believe that the suspect had committed a crime. Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978); Commonwealth v. Bynum, 265 Pa.Superior Ct. 13, 401 A.2d 776 (1979). Clearly the circumstances described above warranted immediate police action and supported probable cause for appellant’s arrest.

Appellant alleges that his statements to the police should have been suppressed because appellant did not knowingly and intelligently waive his right to have an attorney present. The basis of this assertion is that appellant told the police officer that he would talk to him but that appellant wouldn’t sign anything. After a suppression hearing, the court found that the police had unequivocally advised appellant that he could remain silent and that anything he said could be used against him. Appellant responded that he understood his rights and that he wished to make a statement. As the lower court concluded:

“In the absence of any indication of confusion on [appellant’s] part, or any suggestion that his unwillingness to make a statement was a sudden change of mind, a conclusion that his unwillingness to sign anything reflected ignorance of the consequences of an oral statement, with nothing more, would be purely speculative. Commonwealth v. Williams, [242 Pa.Superior Ct. 388, 363 A.2d 1326 (1976) ]”.

We find no reason to reverse the lower court’s conclusion on this point.

Appellant complains that the trial court erred in permitting the jury during the prosecution’s closing address to look at photographs taken during the robbery, which photographs had previously been introduced into evidence. Since these photographs had been introduced as evidence, they were available for the jury’s inspection. Commonwealth v. Burton, 459 Pa. 550, 330 A.2d 833 (1975). Furthermore, it has been held that the prosecutor must have reasonable latitude in fairly presenting his case to the jury and the trial judge must have reasonable discretion in deciding whether the bounds of propriety have been exceeded. Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978).

Although the issue now at bar has not been specifically addressed by the Pennsylvania Courts, courts in other jurisdictions have had occasion to decide the issue. In the factually similar case of People v. Eckles, 83 Ill.App.3d 292, 38 Ill.Dec. 934, 404 N.E.2d 358 (1980), it was held that in a murder prosecution wherein photographs of the victim had been properly admitted into evidence, the prosecution’s exhibiting of such photographs to the jury during closing argument did nothing more than exemplify the evil effects of crime and did not prejudice defendant. In State v. Atkins, 360 So.2d 1341 (La.1978), the court held in a prosecution for theft that the trial court did not err in permitting the prosecutor during closing to distribute to the jurors copies of documents which already had been introduced into evidence and examined by the jurors previously. The general rule of these cases, as stated in State v. Pepples, 250 N.W.2d 390 (Iowa 1977), is that counsel may reasonably display exhibits which are in evidence and may use such exhibits demonstratively as long as the demonstration is for illustration purposes and does not constitute the creation of new evidence. We find in appellant’s case that the trial court did not err in allowing the prosecutor to use the photographs during closing. These photographs were already introduced as evidence and therefore they did not constitute new evidence. The purpose of distributing these photographs at closing was to illustrate the prosecutor’s arguments regarding identification. We therefore find appellant’s argument to lack merit.

Appellant contends the court erred when it did not charge the jury that the testimony of a police officer is not deserving of any greater or lesser weight simply because he is a police officer. The court refused to give this charge because the court had already charged the jury generally and at some length on the issue of credibility.

In part, the court charged the jurors:

Moving to another subject I want to discuss with you the credibility or believability of witnesses. How do you know who is telling the truth? How do you know who is not telling the truth? This is your function and your function alone. When I say “witnesses” I mean all of the witnesses.
Ask yourself does the witness have an interest in testifying as the witness did? Was there something to be gained or something to be lost by the witness testifying as the witness did?

After the charge was complete, defense counsel came forward with his request. Counsel, however, did not then, nor does he now, cite any authority for his requested charge. Having found that the court adequately covered the issue of credibility, we find no error in the court’s ruling.

Lastly, appellant argues that the court erred when it refused to charge the jury on the lower grades of robbery. The court had charged the jury under two subsections of the chapter on robbery, specifically sections 18 Pa.C.S. §§ 3701(a)(1)(h) and (iv). These sections read:

(a) Offense defined—

(1) A person is guilty of robbery if, in the course of committing a theft, he:

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; ....

Robbery under these sections is a felony of the first and second degree respectively.

Appellant had asked that the court also charge the jury according to 18 Pa.C.S. § 3701(a)(l)(v), which defines robbery as:

(1) A person is guilty of robbery if, in the course of committing a theft, he:

(v) physically takes or removes property from the person of another by force however slight.

Robbery under this section is a felony of the third degree. The court refused to charge under section (v), saying that such a charge would have been inappropriate under the facts. The court is correct on this point. It is a well-settled rule of law that an offense can be considered a lesser included offense of a charge if each and every element of the lesser offense is necessarily an element of the greater. Commonwealth v. Sirianni, 286 Pa.Superior Ct. 176, 428 A.2d 629 (1981), Commonwealth v. Farmer, 244 Pa.Superior Ct. 334, 368 A.2d 748 (1976); Commonwealth v. Wilds, 240 Pa.Superior Ct. 278, 362 A.2d 273 (1976). Accordingly, under this test, this Court has held that subsection (v) robbery is not a lesser included offense of subsection (ii) because an essential element of subsection (v) is the taking of property by force, which is an element not contained in subsection (ii). Commonwealth v. Ostolaza, 267 Pa.Superior Ct. 451, 406 A.2d 1128 (1979). The same can be said to be true of subsection (iv) vis-a-vis subsection (v).

Affirmed.

      . Appellant also contends that he was not arraigned within six hours of his arrest, as required by Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Appellant says that his arrest was sometime between 9:15 and 9:40 a. m. Appellant argues that the court should consider appellant’s arrest time to be somewhere between the above times and around 9:27 or 9:25 a. m. Appellant’s arraignment was at 3:30 p. m. As the trial court noted in its opinion, only one witness, a bank teller, said that the robbery occurred at 9:15 a. m. However, all other witnesses testified that the robbery occurred at 9:30 a. m. or later with the subsequent arrest of appellant between 9:40 and 9:45 a. m. This is a factual question which was resolved against appellant by the lower court. We find no reason to reverse.

      . The court also stated as support for its ruling the fact that the subject of the credibility of police officers was covered in voir dire. This rationale fails because questions asked in voir dire are not a substitute for a correct charge to the jury. However, there is other support for the court’s ruling, and we affirm in any event. This court may, of course, affirm if any grounds for affirmance exists. Commonwealth v. Hines, 461 Pa. 271, 273 n.3, 336 A.2d 280, 282 n. 3 (1975); Commonwealth v. Dancer, 460 Pa. 95, 101 n. 5, 331 A.2d 435, 438 n. 5 (1975).

      . Appellant also contends that the court’s charge to the jury was defective in that the court described a reasonable doubt as “a doubt [which] would cause a reasonable person to hesitate and restrain from acting in a matter of importance in his own or her own life.” Appellant argues that the use of the word “restrain” was improper and that only the word “hesitate” should have been used. This issue clearly is without merit as this argument has been rejected in a number of cases. See e.g. Commonwealth v. Brown, 470 Pa. 274, 288, 368 A.2d 626, 634 (1977).


author: SPAETH, Judge:

text:
    444 A.2d 1291
    COMMONWEALTH of Pennsylvania v. John W. JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed April 30, 1982.

      Margaret T. M. McKeown, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   SPAETH, Judge:

This appeal is from an order denying, without a hearing, appellant’s third P.C.H.A. petition. The lower court found that all of appellant’s claims had either been previously litigated or waived. We agree with appellant that one of his claims—that because of ineffective counsel he was denied his right of appeal from the order denying his first P.C.H.A. petition—has not been previously litigated or waived. We therefore reverse and remand for further proceedings consistent with this opinion.

This case has an extensive history going back more than 20 years. We shall, however, recount only so much of it as is necessary to dispose of the issue now before us. See also Commonwealth v. Johnson, 222 Pa.Superior Ct. 233, 294 A.2d 778 (1972).

Appellant was originally arrested in 1961 and was eventually convicted of aggravated robbery and criminal conspiracy and placed on probation. In 1969 he was found in violation of probation for the second time. Probation was revoked and a prison sentence of 8 to 20 years was imposed. Appellant did not appeal from the order revoking probation, but in November 1969 he did file a counseled P.C.H.A. petition. This was appellant’s first P.C.H.A. petition. On June 10, 1970, after a hearing, it was denied.

Appellant did not appeal the order denying his first P.C. H.A. petition. On August 26, 1970, counsel who had represented appellant on his first petition wrote appellant a letter. In the letter counsel explained that he had intended to appeal the order denying the first petition, and had prepared the appeal papers, but that he had been unable to appeal because his associate, believing that the appeal period was 45 days, had let the appeal period expire. The letter went on to say that a petition for permission to appeal nunc pro tunc had already been denied by this court, that an appeal had been taken to Supreme Court, and that if the Supreme Court also denied relief, counsel intended to file a petition for a writ of habeas corpus in federal court.

The record discloses that the Supreme Court did deny relief and that on May 16, 1971, a petition for a writ of habeas corpus was filed in the United States District Court. On January 11, 1974, that court denied the petition on the ground that appellant had not exhausted his state remedies in that he could still file another petition under the Pennsylvania Post Conviction Hearing Act alleging that his failure to appeal the order denying his first petition was the result of ineffective assistance of counsel. On July 28,1977, appellant did file pro se a P.C.H.A. petition that made that allegation, among others. This was appellant’s third P.C. H. A. petition. As part of the petition appellant included a copy of the letter of August 26,1970, in which counsel on the first petition had explained why no appeal from the order denying that petition had been taken. By order of February 9, 1978, the lower court, without a hearing, denied appellant’s third petition. This appeal is from that order.

The Commonwealth argues that appellant is not entitled to relief because in this, his third, P.C.H.A. petition, he has failed to allege that counsel on his second petition was ineffective for failing to allege that counsel on his first petition was ineffective. Letter Brief of 6/6/80 at 2. This argument is without merit. It is clear from both appellant’s brief to this court, at 14, and from his third petition, that appellant had the same counsel on both his first and second P.C.H.A. petitions. The Supreme Court and this court have consistently held that counsel’s failure to allege his own ineffectiveness will not result in a waiver. E.g., Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Oliver, 280 Pa.Superior Ct. 274, 421 A.2d 719 (1980). Appellant’s third P.C.H.A. petition was therefore his first opportunity to allege the ineffectiveness of counsel for failing to appeal the order denying his first petition.

The Commonwealth also argues that in order to be entitled to relief under the Post Conviction Hearing Act appellant must show that his appeal would have had merit. This court sitting en banc has just reaffirmed that that is not the law. Once this court, or the lower court, has determined that a P.C.H.A. petitioner has been wrongfully denied his right of appeal our inquiry ceases and the question of whether the appeal is meritorious is left to the appeal to which he had been entitled all along. Commonwealth v. Miranda, 296 Pa.Superior Ct. 441, 442 A.2d 1133 (1982); Commonwealth v. May, 296 Pa.Superior Ct. 435, 442 A.2d 1129 (1982).

If, as represented in his letter to appellant, counsel failed to appeal the order denying the first P.C.H.A. petition because he let the appeal period expire, counsel was ineffective. Since this letter was part of appellant’s P.C.H.A. petition, the lower court should have ordered an evidentiary hearing at which the Commonwealth could by cross-examination test counsel’s representation, and each side could present whatever other evidence might be relevant to the issue of whether appellant’s failure to appeal was a knowing and voluntary waiver of his appellate rights.

The order of the lower court will therefore be reversed and the case remanded for an evidentiary hearing. If the lower court finds that appellant’s failure to appeal the order denying his first P.C.H.A. petition was not a knowing and voluntary waiver of his appellate rights, it shall permit him to file an appeal nunc pro tunc. If it does not so find, it shall reinstate its previous order or make such other order as may be appropriate. Any further appeal must be from the order entered by the lower court after the hearing. We do not retain jurisdiction.

Reversed and remanded for further proceedings consistent with this opinion.

BROSKY, J., concurs in the result.

      . Meanwhile, on April 26, 1971, appellant had filed a second P.C.H.A. petition, which raised only one claim, relating to double jeopardy, and was denied by the lower court and, on appeal, by this court. See Commonwealth v. Johnson, supra.

      . There is one exception to this rule. If the P.C.H.A. petition raises issues other than the denial of appellate rights, the lower court must see to it that the record with regard to those issues is such as to permit appellate review. This may require the lower court to receive further evidence and make findings of fact. Commonwealth v. Miranda, supra, 296 Pa.Superior Ct. at-, 442 A.2d at 1138-39 (Slip op. at 10-11.) See Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977). This exception, however, is not relevant here, for the only issue properly presented by appellant’s third P.C.H.A. petition is the denial of appellate rights following his first petition.

      . We have held this case until the opinion's in Miranda and May were filed.


author: WICKERSHAM, Judge:

text:
    444 A.2d 1294
    COMMONWEALTH of Pennsylvania v. Dennis E. KING, Appellant.
    Superior Court of Pennsylvania.
    Argued June 10, 1980.
    Filed April 30, 1982.
    H. Amos Goodall, Jr., Bellefonte, for appellant.
    David E. Grine, District Attorney, Bellefonte, did not file a brief on behalf of Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   WICKERSHAM, Judge:

On April 11, 1979, appellant, Dennis E. King, was convicted by a jury of homicide by vehicle. Post-verdict motions were denied and appellant was sentenced to a term of imprisonment of three to twenty-three months. On appeal, appellant alleges that the evidence was insufficient to sustain the conviction. He also argues that section 3732 of the Vehicle Code, 75 Pa.C.S. § 3732, is unconstitutional. We disagree and, accordingly, affirm the judgment of sentence.

The test for passing on the sufficiency of the evidence is whether, accepting as true all the evidence, together with all reasonable inferences therefrom, upon which the jury could have based its verdict, such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Ilgenfritz, 466 Pa. 345, 348, 353 A.2d 387, 389 (1976); Commonwealth v. Carbonetto, 455 Pa. 93, 95, 314 A.2d 304, 305 (1974). In addition, we are required to consider the evidence in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Ilgenfritz, supra; Commonwealth v. Green, 464 Pa. 557, 565, 347 A.2d 682, 686 (1975). Applying these standards, the evidence in the instant case was clearly sufficient to sustain the conviction.

In the early morning hours of December 16, 1978, appellant was operating a vehicle which was occupied by himseif and five passengers. At the time of the accident, the automobile was on a two lane highway. It was a clear night and the highway was dry. Approximately one-half mile before the accident occurred, a passenger in the automobile observed the vehicle speedometer at 85 miles per hour. At a distance of approximately 2/io of a mile from where the accident occurred, the automobile swerved and drove into the right berm of the highway when it failed to negotiate a slight curve. Appellant then managed to return the automobile to the highway but was never able to regain complete control of the car. The automobile then skidded across the road a distance of fifty feet and then went onto the left berm of the road for a distance of ninety-five feet before it struck a speed limit sign and a guard post. The vehicle then became airborne after going off an eight foot embankment and bounced once before it came to rest on its roof approximately 105 feet from the embankment. One passenger was killed in the accident when his body was thrown an additional 69 feet. After the accident occurred, Trooper James C. Clouse, Pennsylvania State Police, testified that he interviewed appellant concerning the accident and that appellant stated that, “he was going a little bit too fast and lost control of his vehicle. . . . ” Record at 93.

A person is guilty of homicide by vehicle if he: [U]nintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic . . . when the violation is the cause of death.

75 Pa.C.S. § 3732.

As we recently held in Commonwealth v. Koch, 297 Pa.Super. 350, 443 A.2d 1157 (1982) (J. 1357/1981) (No. 1626 Philadelphia 1980):

We summarize below the elements of the crime of homicide by vehicle, 75 Pa.C.S. § 3732, . . .:

1) Defendant deviated from the standard of care established by the underlying Vehicle Code provision [or municipal ordinance].
a) Defendant knew, or should have known, he engaged in the conduct claimed to be in violation of the underlying Vehicle Code provision [or municipal ordinance].
2) A death occurred.
b) The death was, at the very least, a probable consequence of the defendant’s violation of the underlying Vehicle Code provision [or municipal ordinance].

Id., 297 Pa.Super. at-, 443 A.2d at 1160.

As in every criminal prosecution, the Commonwealth’s proof must be beyond a reasonable doubt. See e.g., Com monwealth v. Busler, 445 Pa. 359, 362, 284 A.2d 783, 784 (1971). It was the legislative judgment in enacting section 3732 to expand the scope of criminal liability for violations of the Vehicle Code causing death. Compare 18 Pa.C.S. § 2504; Commonwealth v. Busler, supra; Commonwealth v. Clowser, 212 Pa.Super. 208, 239 A.2d 870 (1968).

While the mere happening of an accident does not raise an inference or presumption of negligence, Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), we find that the particular circumstances and the testimony surrounding this particular accident were sufficient to find appellant guilty of reckless driving and speeding. The testimony concerning the speed of the automobile immediately before the accident, the length of the skid marks, the impact with the sign and guard post, and the distance the car traveled in the air before landing upside down all support a reasonable inference that appellant was driving recklessly and at an unreasonable speed and that he knew or should have known that he was engaged in such conduct. Clearly the jury could find that the death of the passenger was, at the very least, a probable consequence of the defendant’s speeding and reckless driving.

Appellant also contends that section 3732 of the Vehicle Code, which defines homicide by vehicle is unconstitutional. Recently in Commonwealth v. Burt, 490 Pa. 173, 415 A.2d 89 (1980), the supreme court unanimously reversed an order of the Court of Common Pleas of Warren County holding section 3732 unconstitutionally vague. There, the court stated:

With unmistakable clarity, section 3732 defines ‘homicide by vehicle’ as a death caused by any person’s conduct violating law or municipal ordinance applying to vehicles or traffic regulation. This section does not employ ‘ambiguous’ words, ‘archaic classifications,’ or words with ‘numerous and varied’ meanings. Compare Colautti v. Franklin [439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979)], supra (‘viability’ determination requirement of statute regulating physicians’ performance of abortions void), Papachristou v. City of Jacksonville [405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972)], supra (‘vagrancy’ ordinance drafted in terms of archaic English poor laws invalid), and Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939) (voiding statute making it crime to be member of ‘gang’). Accordingly, any vagueness challenge must be rejected. See United States ex rel. Almeida v. Rundle, 383 F.2d 421, 426 (3d Cir. 1967) (upholding former felony-murder statute).

Id., 490 Pa. at 178-79, 415 A.2d at 92.

Furthermore, in Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), the supreme court added:

Burt is not dispositive of this case, however, for here appellee contends section 3732 is unconstitutional on an additional ground. Section 3732 is a first-degree misdemeanor punishable by imprisonment of up to five years. See 18 Pa.C.S. § 1104(1). Relying primarily upon Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), appellee maintains section 3732 unconstitutionally imposes criminal liability without fault. Like the vagueness challenge, this challenge must also be rejected.
... As the Attorney General recognizes, section 3732 requires the Commonwealth to prove that appellee has deviated from the standard of care established by section 3703, the underlying Vehicle Code provision allegedly violated here. Section 3703 provides:
No person shall drive any vehicle except a human-powered vehicle upon a sidewalk or sidewalk area except upon a permanent or duly authorized temporary driveway.
Consistent with the culpability requirement, section 3703 leaves for determination at trial whether appellee knew, or should have known, he engaged in the conduct claimed to be in violation of that section. Thus, for example, it remains to be decided if a reasonable driver could, in view of the congestion at the terminal exit, know where the sidewalk was or, indeed, if a sidewalk existed. Section 3732 also requires the Commonwealth to prove that appellee’s alleged violation of section 3703 caused the victim’s death. As the Attorney General points out, at the very least, death must be a ‘probable consequence’ of appellee’s culpable conduct. See 18 Pa.C.S. § 303(d).
Accordingly, our review satisfies us that here, unlike in Koczwara, section 3732 requires the Commonwealth to establish that it was the actor’s conduct which caused death. This requirement of personal responsibility under a section 3732 prosecution precludes successful constitutional challenge.

Id., 490 Pa. at 523-25, 417 A.2d at 162-63 (footnotes omitted).

Judgment of sentence affirmed.

      . At trial, the Honorable Richard M. Sharp, P. J., charged the jury to consider various sections of the Motor Vehicle Code including 75 Pa.C.S. § 3361:
      § 3361. Driving vehicle at safe speed
      No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions,
      and 75 Pa.C.S. § 3714:
      § 3714. Reckless driving
      Any person who drives a vehicle in careless disregard for the safety of persons or property is guilty of reckless driving, a summary offense.

      . Appellant has asserted other allegations of error, but we find such allegations to-be without merit.