text:
    450 A.2d 1021
    COMMONWEALTH of Pennsylvania v. Harry Lon CRAFT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 10, 1980.
    Filed Sept. 24, 1982.

      Thomas M. Kiermaier, Saxonburg, for appellant.
    Stephen Toole, Assistant District Attorney, Meadville, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellant, Harry Lon Craft, takes this appeal from his conviction for conspiracy to commit theft by deception. Appellant argues, inter alia, that his sentence must be vacated because the written judgment of sentence incorrectly states that appellant was found guilty of conspiracy to commit theft of a motor vehicle, rather than the correct verdict of conspiracy to commit theft by deception. We find merit in appellant’s issue. However, we do not find the error in this case to be such as would warrant the vacating of sentence. Instead, we find the proper remedy to be an order, entered pursuant to Pa.R.App.Pro. 1926, directing that the record be corrected, and we so order.

During the spring of 1977, one Stephen Barker of Crawford County was having mechanical problems with his motorcycle. Barker’s friend, Michael Bly, also of Crawford County, approached Barker with the idea of getting rid of the motorcycle and filing a false theft claim with the insurance company, an idea which Barker did not immediately adopt. A short time later, Barker received a telephone call from appellant, who resided in Armstrong County. Appellant asked Barker if the latter wanted to “get rid” of his motorcycle. Appellant offered Barker a couple of hundred dollars for the bike and reminded Barker that he could be collecting the insurance money in addition and so Barker would not be losing out on the deal. As before, Barker merely promised to think the idea over. However, after several discussions with Bly, Barker decided to go ahead with the plan and on May 14, 1977, the two of them made arrangements to drive up to appellant’s house at night. When the men reached Kittanning, Bly, who was handling the negotiations with appellant, telephoned the clubhouse of the Outlaw motorcycle gang and asked for appellant. Bly was told that appellant wasn’t there but to come by anyway. A short time later, appellant arrived at the clubhouse and he, Bly and Barker went to appellant’s house. Bly and Barker decided to spend the night at appellant’s house and they parked the motorcycle in the yard. The next day, when the trio awoke, they found that the motorcycle had mysteriously disappeared during the night. Bly and appellant discussed this turn of events and appellant agreed to pay the money he promised.

Approximately one year later, Bly was convicted on several unrelated charges and sentenced to a prison term. Bly decided to admit to the police his involvement in a number of other criminal acts, including the herewithin conspiracy. Bly testified that it was his desire to “get all this out in the open” and serve his sentences at one time, rather than face the prospect of completing one sentence only to be later convicted on these remaining crimes and to again be separated from his family. Bly and Barker were both convicted for their participation in the conspiracy and both testified against appellant. On the strength of their testimony, appellant was convicted.

Appellant raises two arguments challenging the propriety of his conviction. Appellant first argues that the trial court in Crawford County lacked subject matter jurisdiction because there was no proof of appellant’s involvement in the conspiracy in that county. Appellant’s second issue is related to his first, contending that the Commonwealth failed to prove that any overt act had occurred in furtherance of the alleged conspiracy. These issues can be resolved together.

Section 903(d)(2)(i) of the Crimes Code provides “no defendant shall be charged with a conspiracy in any county other than one in which he entered into such conspiracy or in which an overt act pursuant to such conspiracy was done by him or by a person with whom he conspired....” In other relevant part, the Code further states: “No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.” Accordingly, it has been held that before a county assumes jurisdiction over an alleged case of criminal conspiracy, some overt act must have occurred within the boundaries of that county; an overt act committed within the jurisdiction by any one of the conspirators is sufficient for that county to assert jurisdiction over all. Commonwealth v. Thomas, 410 Pa. 160, 189 A.2d 255 (1963); Commonwealth v. Creamer, 236 Pa. Superior Ct. 168, 345 A.2d 212 (1975); Commonwealth v. Simeone, 222 Pa. Superior Ct. 376, 294 A.2d 921 (1972). In the instant case, appellant’s two co-conspirators took steps in Crawford County in furtherance of the conspiracy. Specifically, they commenced driving the motorcycle at issue from Barker’s house in Crawford County to appellant’s house in Armstrong County for the purpose of completing the plan. It is therefore apparent that appellant’s challenges to his conviction have no merit.

Appellant further argues that the court erred by considering a pre-sentence report which was not made available to counsel until approximately twenty minutes before sentencing. According to the opinion of the lower court, appellant’s statement of this issue is factually incorrect. The court notes that the Adult Probation Office submitted the pre-sentencing report for the instant case on December 13, 1978, four months prior to sentencing, yet counsel make no request to review this report. In Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973), the Supreme Court adopted as law the American Bar Association’s standards requiring, with certain limitations, the disclosure to defense counsel of the contents of a pre-sentence report. However, the Phelps Court did not place an affirmative duty on the sentencing court to forward a copy of the pre-sentencing report to defense counsel where no request for the report has been made. The fact that defense counsel failed to seek inspection of the report until the day of sentencing has no bearing upon the availability, vel non, of same. We find in the present case that the court satisfied its obligation under Phelps.

Appellant further argues that it was error for the court to impose a harsher sentence on appellant than was imposed on his co-conspirators. Appellant was sentenced to a term of one and one-half to five years in prison, while his co-conspirator, Bly, who pleaded guilty, was sentenced to 6 to 12 months, to be served concurrently with the term he was then serving, and that Barker, who also pleaded guilty, was given 9 months probation in the Accelerated Rehabilitative Disposition program and ordered to pay restitution. In Commonwealth v. Thurmond, 257 Pa. Superior Ct. 464, 390 A.2d 1330 (1978), we ruled that a trial judge should give an explanation if he imposes different sentences on co-defendants. In appellant’s case, the fact is that although appellant and his friends were co-conspirators, they were not co-defendants. Both of appellant’s fellow conspirators pleaded guilty at hearings separate from appellant’s jury trial. Furthermore, as was noted by the sentencing judge, appellant’s co-conspirators were sentenced by Judge Thomas, not Judge Walker, before whom appellant appeared. Accordingly, based on these facts, we find that Thurmond is inapposite to appellant’s case.

Lastly, appellant argues that his sentence must be vacated because the court considered three arrests which did not result in convictions, a “stale” psychiatric report and inaccurate information. It has been held that a court, in imposing sentence may consider prior arrests and concurrent charges as long as the court realizes that the defendant had not been convicted on those prior charges, Commonwealth v. Straw, 238 Pa. Superior Ct. 535, 361 A.2d 427 (1976); Com monwealth v. Tisdale, 233 Pa. Superior Ct. 77, 334 A.2d 722 (1975). See also Commonwealth v. Shoemaker, 226 Pa. Superior Ct. 203, 313 A.2d 342 (1973), affirmed 462 Pa. 342, 341 A.2d 111 (1975). In appellant’s case, the court noted that the pre-sentencing report showed that at least one of the arrests had been treated as a parole violation and the court properly gave this consideration. As for the two remaining arrests, the court said that it did not give undue weight to these arrests. Furthermore, the court pointed out there were numerous other charges which did result in convictions that would warrant the sentence. As the court said to appellant at the time of sentencing:

Mr. Craft, you’ve got a record as long as my arm. Maybe you have been straight for a year or two. Maybe you have and maybe you haven’t. But I have to go on a record that’s in front of me of consistently criminal behavior since 1968. Ten, eleven, twelve cases, some of which have been withdrawn, some of which have not. I have to go on the fact that you have been tried on probation in this court on at least three occasions and have never made it without violating your parole or probation. You have made this record for yourself since you were seventeen years old. Whether it was through drug abuse, whether it was through alcohol abuse or what it is.

In view of all of the above, we therefore find that the court did not give undue weight to the record of appellant’s three arrests.

In the final part of his argument, appellant contends that the court’s sentence was based on “inaccurate information” because the court’s written judgment of sentence erroneously states that appellant was found guilty of conspiracy to commit theft of a motor vehicle, rather than the correct verdict of guilty of conspiracy to commit theft by deception. Although we find appellant’s position to be factually correct, we conclude that the proper remedy is not to vacate the judgment of sentence, but rather, to enter an order pursuant to Pa.R.App.Pro. 1926 directing that written judgment of sentence be corrected. We wish to point out that the error in appellant’s case does not raise problems under double jeopardy clause of the Fifth Amendment to the U.S. Constitution because it is not an error pertaining to the actual term of imprisonment or other sentence directed by the court. See generally Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1935); Commonwealth ex rel. Woods v. Howard, 249 Pa. Superior Ct. 428, 378 A.2d 370 (1977); Commonwealth v. Green, 232 Pa. Superior Ct. 555, 335 A.2d 392 (1975); Commonwealth v. Foster, 229 Pa. Superior Ct. 269, 324 A.2d 538 (1974). Nonetheless, this is an error which is properly raised on direct appeal and which can be corrected by order of court. Pa.R. App.Pro. 1926 provides, in relevant part:

If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the lower court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected....

We find Rule 1926 to apply in the instant case.

We therefore enter an order directing the prothonotary or clerk of courts for the court below to amend the record and written judgment of sentence entered in appellant’s case so that it reads that appellant was found guilty of conspiracy to commit theft by deception, and to strike from the judgment of sentence and record any statement saying appellant was found guilty of conspiracy to commit theft of a motor vehicle. In all other respects, appellants conviction is affirmed.

      . The Crimes Code, The Act of 1972, Dec. 6, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 903(d)(2)(i).

      . The Crimes Code, supra, 18 Pa.C.S. § 903(e).

      . The Phelps Court allowed that in extraordinary cases, the court would be permitted to except from disclosure sources of information which have been obtained on a promise of confidentiality. Commonwealth v. Phelps, supra, 450 Pa. at 605, 301 A.2d at 682.

      . Our ruling at this time does not decide the question of how much time must be given to defense counsel to inspect the pre-sentence report. We need not reach this issue at present and we decline to rule on it.

      . Appellant also contends that the sentencing court erred in that the court did not take into consideration the particular circumstances of the offense. The “circumstances” argued by appellant are that the intended victim of the conspiracy suffered no harm and that appellant was a “minor participant” in the plan. These can readily be dismissed for it was only the unforeseen intervention of a third party which prevented the insurance company from being defrauded. As for appellant’s role in the conspiracy, the court properly noted that appellant was a very essential part of the conspiracy without whom it could not have existed.

      . Appellant also alleges error in the court’s reviewing of a psychiatric report on appellant which was completed two years prior to sentencing. This argument can be summarily dismissed because the court stated that it “gave very little weight to that psychiatric report.”


source: Caselaw Access Project

author: SPAETH, Judge:

license: Public Domain

text:
    450 A.2d 1025
    Anna KALMAN, Appellant, v. Julius MUZIKAR and First Valley Bank.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1982.
    Filed Sept. 24, 1982.
    William E. Doyle, Allentown, for appellant.
    Dennis J. Monaghan, Bethlehem, for Muzikar, appellee. Alan M. Black, Allentown, for First Valley, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   SPAETH, Judge:

This is an appeal from an order opening a satisfied judgment against appellee as garnishee and ordering appellant to refund to appellee the amount of that judgment. We. reverse.

In June 1977 appellant, Anna Kalman, obtained an arbitration award against Julius Muzikar. A final judgment was entered, and on October 21, 1977, a writ of attachment execution issued. In response to appellant’s first set of interrogatories, appellee, First Valley Bank, denied that Muzikar had an account with it. However, on January 5, 1978, in response to a second interrogatory, appellee said that “Defendant had checking account No. 17-406-91-4 with a balance of $9.34 and a savings account No. 004-07875-3 with a balance of $6,126.61.” R. 28a. On January 12, 1978, appellant entered judgment against appellee as garnishee for the amount of her judgment against Muzikar, $5,912.53. On January 18,1978, appellee paid the judgment, and on January 30, 1978, satisfaction of the judgment was acknowledged on the docket by appellant’s counsel, R. 2a, with the statement that “the within action is settled, discontinued and all costs paid,” id.

Four months later, in May 1978, appellee discovered that it had made a mistake in answering appellant’s second interrogatory. The savings account that it had said belonged to defendant, Julius Muzikar, in fact belonged to defendant’s son, Julius S. Muzikar, and the son’s wife. Upon discovering its mistake, appellee asked appellant to refund the money it had paid her, but she refused. R. 28a. In October 1978 appellee filed an action in assumpsit to recover the money it had paid appellant. This action, the lower court informs us, was continued when it came to trial in January 1980 so that appellee could file a motion to strike or open the judgment of January 12, 1978. Slip op. at 19.

On February 14, 1980, appellee filed a motion to strike or open the judgment. On February 19, 1981, the lower court entered an order in several parts. The court denied appellee’s motion to strike the judgment. Appellee having filed no cross-appeal, this part of the lower court’s order is not before us. The court also granted appellee’s motion to open the judgment, ordered appellee to pay appellant the costs of entering the judgment, and ordered appellant to refund to appellee the amount of that judgment. On her appeal, appellant challenges these parts of the lower court’s order.

The satisfaction of a judgment “forever discharge^] the judgment.” 42 Pa.C.S. § 8104(a). Thus, a judgment that has been satisfied no longer exists and cannot be attacked either by a motion to strike or by a motion to open. Lance v. Mann, 360 Pa. 26, 29, 60 A.2d 35 (1948). See also Tice v. Nationwide Life Insurance Co., 284 Pa.Superior Ct. 220, 236-37, 425 A.2d 782, 791 (1981) (SPAETH, J. concurring); Sanctis v. Checco, 195 Pa.Superior Ct. 193, 171 A.2d 542 (1961) affirming 24 Pa. D & C 2d 121 (1960). Since the judgment entered against appellee on January 12, 1978, was discharged by its satisfaction, it was error for the lower court to grant appellee’s motion to open it; there was no longer a judgment to be opened. See Lance v. Mann, supra, 360 Pa. at 29, 60 A.2d at 36.

The order of the lower court opening the judgment of January 12, 1978, directing appellee to pay appellant the costs of entering the judgment, and directing appellant to refund to appellee the amount of the judgment is reversed.


author: WIEAND, Judge:

text:
    450 A.2d 1026
    COMMONWEALTH of Pennsylvania v. Joe OLLIE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 1, 1981.
    Filed Sept. 24, 1982.

      Carmela Presogna, Erie, for appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   WIEAND, Judge:

Joseph Ollie, convicted and sentenced to prison for rape, has twice been denied hearings on post-conviction petitions. He contends that he has been denied hearings because of the ineffectiveness of counsel. A review of the record compels the conclusion that Ollie is correct and that hip present appeal must be sustained.

Appellant was convicted of rape, statutory rape, and indecent assault on June 22, 1977. Following the denial of boiler-plate post-trial motions, he was sentenced to 9to 20 years in prison. No direct appeal was taken. On November 13,1979, appellant filed pro se a P.C.H.A. petition containing averments that trial counsel had been ineffective for failing to file a pre-trial suppression motion, for failing to investigate adequately or consult with the appellant, and for failing “to challenge creditbality [sic] of alledged [sic] victim.” His petition averred that these issues had not been waived or finally litigated because he had not been allowed to utilize or exhaust his full range of appellate rights. Although counsel was appointed to assist appellant, no amended petition was filed, no extension of time was sought, and no brief was prepared. Oral argument was apparently held on the petition, and appellant’s P.C.H.A. petition was dismissed without hearing. No appeal was filed.

On July 7, 1980, appellant filed a “petition for allowance of appeal nunc pro tunc.” The petition alleged that appellant had requested his attorney to appeal his conviction, but that the attorney had failed to do so. Appellant alleged further that despite a specific request to do so, P.C.H.A. counsel had also refused or neglected to file an appeal from the order denying his P.C.H.A. petition without hearing. For these reasons, he contended in the petition of July 7, 1980, his right of appellate review had been denied. Appointed counsel entered an appearance for appellant on August 12, 1980. The next day, there having been no request by counsel for leave to file an amended petition, appellant’s second petition was also denied without hearing. This time an appeal was filed.

Appellant argues that the issues he has wanted to raise were not waived, that he has been denied effective assistance of counsel, and that his appellate rights have been denied. We agree that he is entitled to relief. The courts in this Commonwealth have repeatedly held that the mandatory appointment of counsel requirement of the Post Conviction Hearing Act “is not limited to the mere naming of an attorney to represent an accused, but also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation.” Commonwealth v. Carrier, 494 Pa. 305, 309, 431 A.2d 271, 273 (1981), quoting Commonwealth v. Fiero, 462 Pa. 409, 413, 341 A.2d 448, 450 (1975). See also: Commonwealth v. Scott, 469 Pa. 381, 383, 366 A.2d 225, 226 (1976); Commonwealth v. Hines, 287 Pa.Super. 291, 295, 430 A.2d 291, 292 (1981); Commonwealth v. Zaborowski, 283 Pa.Super. 132, 135, 423 A.2d 1023, 1025 (1980). When appointed counsel fails to amend an inarticulately drafted pro se P.C.H.A. petition, or fails otherwise to participate meaningfully, this court will “conclude that the proceedings were, for all practical purposes, uncounselled and in violation of the representation requirement of the PCHA. Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980).” Commonwealth v. Carrier, supra, 494 Pa. at 310, 431 A.2d at 274.

In cases where a trial court’s decision to dismiss a pro se petition has been made without the benefit of effective counsel, the Supreme Court and this Court have uniformly remanded to afford appellant an opportunity to be represented in a meaningful way by counsel. See, e.g., Commonwealth v. Carrier, supra; Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980); Commonwealth v. Sangricco, supra; Commonwealth v. Scott, supra; Commonwealth v. Fiero, supra; Commonwealth v. Hines, supra; Commonwealth v. Zaborowski, supra.

It is clear from the record in the instant case that appellant has been denied the meaningful and effective assistance of counsel. He filed a pro se P.C.H.A. petition in which several legal issues were properly, if inartfully, raised. Nevertheless, his appointed counsel failed to file an amended petition that would have clarified those issues and framed them articulately. Appellant’s petition was not patently frivolous. It contained averments of ineffective assistance of trial counsel, an issue which, at least, required an evidentiary hearing. The pro se petition, moreover, contained an averment which, if properly drafted and proved, would excuse his failure to file a direct appeal. Despite a right to hearing on the P.C.H.A. petition, appointed counsel failed or refused, according to the averments of appellant’s second pro se petition, to follow appellant’s instructions and file an appeal.

We do not suggest that the issues raised by appellant must ultimately be found to be meritorious. We do hold that appellant is entitled to be represented by effective counsel, who participates in a meaningful way in presenting to the court those issues which appellant wishes to raise and which have arguable merit. Because the proceedings on appellant’s two pro se petitions were, in effect, uncounselled, we enter the following order.

The order of the trial court is reversed, and the case is remanded with instructions to appoint counsel to represent appellant in the filing of an amended petition and at any P.C.H.A. proceedings had thereon.

      . Although a copy of that petition is not part of the official record, all parties agree that it was filed and agree on the content thereof. A copy of the petition, stamped “Received, July 7, 1980, Office of District Attorney, Erie County,” has been included in appellant’s brief.

      . 19 P.S. § 1180-12.


author: CIRILLO, Judge:

text:
    450 A.2d 1028
    Harry S. and Carol Ann OWENS, v. Russell S. and Letha R. McCURDY, Appellants.
    Superior Court of Pennsylvania.
    Submitted March 10, 1982.
    Filed Sept. 24, 1982.

      Roger Mattes, Scranton, for appellants.
    Joseph D. Paparelli, Scranton, for appellees.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   CIRILLO, Judge:

This is an appeal from an Order denying a petition to open or, in the alternative, strike a judgment by confession. Since the order was prematurely entered, we remand for further proceedings consistent with Pa.R.C.P. 209.

On June 24, 1981, Harry S. Owens and Carol Ann Owens, his wife, appellees, filed a complaint in confession against Russell S. McCurdy and Letha R. McCurdy, his wife, appellants, pursuant to Pa.R.C.P. 2951(b). Appellants, on July 15, 1981, filed a petition to open or, in the alternative, strike the confessed judgment, pursuant to Pa.R.C.P. 2959. The appellants alleged a meritorious defense of fraud in the inducement by incorporating into their petition to open the averments contained in their action at equity. In his answer to the petition to open, the appellee denied the appellants’ allegations and demanded strict proof thereof. The trial court at this point, and with nothing more before it than contradictory pleadings, refused to open the confessed judgment based solely upon the appellant’s failure to establish that a meritorious defense existed. This was incorrect.

The trial court held that absent depositions and admissions, it was without sufficient evidence to support the opening of the confessed judgment. This lack of evidence rather than supporting the refusal to open the judgment, left the trial court with contradictory pleadings, which placed the trial judge in a position where he had no basis to accept one version in preference to the other. Instapak v. S. Weisbrod Lamp and Shade, 248 Pa.Super. 176, 374 A.2d 1376 (1977).

When the court determines that a respondent has effectively denied the material allegations in a petition to open a confessed judgment, as here, the petitioner must proffer clear and convincing evidence to substantiate his averments. Johnson v. Leffring, 211 Pa.Super. 84, 235 A.2d 435 (1967). The mechanism to compel said proof is provided for in Pa.R.C.P. 209, 42 Pa.C.S.A., which states:

If, after the filing and service of the answer, the moving party does not within fifteen days: (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

Thus, the petitioner bears the burden of supporting his allegations of fact by depositions. Reztback v. Berman Co., 222 Pa.Super. 523, 294 A.2d 917 (1972). Only after the petitioner is ruled to proceed and fails to either take depositions or order the case for argument on the petition and answer, will the factual allegations of the respondent be taken as true. Smith v. Dale, 405 Pa. 293, 175 A.2d 78 (1961).

Here, as in Instapak, neither party had taken any action under Rule 209 when the lower court ruled on the petition. Rather than wait for the parties, the court, sua sponte, could have ordered the parties to proceed under Rule 209. Maurice Goldstein Co. v. Margolin, 248 Pa.Super. 162, 374 A.2d 1369 (1977); Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979).

Instead, the court went forward and decided the petition on the pleadings alone. This was incorrect. On the issue of meritorious defense, the court had no evidence before it, only contradictory pleadings. Therefore, the trial court had no basis to accept the appellees’ version over the appellants’ and, as such, the refusal to open the confessed judgment was premature.

Reversed and remanded to the trial court for further proceedings consistent with this Opinion. We do not retain jurisdiction.

      . The appellants alleged in paragraph four that an action in equity had been commenced in the Common Pleas Court of Lackawanna County, No. 81 Equity 60, to rescind the agreement upon which judgment was subsequently confessed, alleging “fraud in inducement.” The complaint in equity was “incorporated by reference.” Certainly, proof of fraudulent inducement would be a meritorious defense to the underlying contract, upon which the confession of judgment is based.


author: CERCONE, President Judge:

text:
    450 A.2d 1356
    In the Matter of the ADOPTION OF Larry Lee BARNETT. Appeal of Alice WAITE.
    Superior Court of Pennsylvania.
    Submitted April 28, 1982.
    Filed Sept. 17, 1982.

      William Dubose Taggart, Erie, for appellant.
    James E. Beveridge, Erie, for participating party.
    Before CERCONE, President Judge, and BECK and MONTEMURO, JJ.
   CERCONE, President Judge:

Appellant, Alice Waite, takes this appeal from the Judgment of the court below terminating appellant’s parental rights to her son, Larry Lee Barnett, now four-years-old. Appellant argues that appellee, Children’s Services of Erie County, failed in the court below to meet its burden of proof. We agree and we reverse.

These are the facts adduced before the court. On November 18, 1977, appellant, then fourteen years old and in seventh grade, gave birth to a son, Larry, now the subject of this appeal. During the first year of Larry’s life, appellant cared for the child while living at home with her own parents, Charles and Dorothy Waite. During this time, Children’s Services was not involved in any way with the Waite family. Then, in November of 1978, the Commonwealth, acting in parens patriae, found Alice to be a truant from school; she was found delinquent and sent to Waynesburg Juvenile facility. The baby was left in the custody of Alice’s parents, apparently by court order.

Five months later, on March 5, 1979, while Alice was 200 miles from Erie at Waynesburg, an incident involving Larry occurred at the Waite household. Sometime around midnight, Alice’s parents found Larry cold and unconscious in the backyard of the Waite’s home. The Waites took Larry to the hospital and the child later recovered. However, police and Children’s Services were called to investigate, but their inquiries failed to definitely ascertain how the child came to be outside. Immediately upon the child’s release from the hospital, Larry was detained in a Children’s Services’ foster home. Approximately two weeks later, the infant was adjudicated dependant. It was around this time that Alice was permitted, because of this incident, to leave Waynesburg and return home. Whereupon, on April 19, 1979, a further order was entered directing that Alice, not her parents, was to cooperate in a psychological evaluation and in counseling with Georgeann Setcavage, a Children’s Services caseworker.

Thereafter, every month for the next nine months, Ms. Setcavage would go to the Waite’s home and talk with Alice. Ms. Setcavage established three “goals” that Alice had to meet before Larry was returned to her. First, Alice had to find employment or get a high school equivalency degree. Second, Alice was to attend a parent training course. Third, Alice was to establish a residence apart from her parents.

Because Children’s Services felt that Alice had not done enough to reach these goals, on July 22, 1980, a petition to involuntarily terminate appellant’s parental rights to Larry was filed by the agency. At that time, Ms. Setcavage advised appellant that she could no longer visit with Larry, as she had done every week for the preceeding year, pending disposition of the above petition. For reasons not apparent in the record, hearings were not held on this matter until March 3, 1981 and July 28, 1981. In any event, on July 31, 1981, the court entered its order extinguishing Alice’s parental rights based on the court’s conclusion that the evidence “clearly demonstrates that she has evidenced a settled purpose of relinquishing her parental rights.” The court placed great weight on the fact that during the year between the filing of the petition and the final hearing on this matter, Alice made no attempt to call Ms. Setcavage to inquire about Larry.

At the hearing below, Ms. Setcavage testified regarding the substance of her conferences with Alice. Regarding Alice’s search for a job, Alice told Ms. Setcavage that she had applied for work at many restaurants and fast-food chains in Erie, but that nothing seemed to come through. The problem was that Alice, then sixteen, was considered too young by employers. Since Alice reported no luck here, Ms. Setcavage suggested that Alice attend classes at Opportunities Industrialization Center, commonly known as O.I.C. To Ms. Setcavage’s knowledge, Alice never followed through on this suggestion. As for the parent training course, Alice enrolled in the course but only attended the first of an unspecified number of classes of the six-week program. With respect to establishing “independent living,” Alice, with knowledge of Ms. Setcavage, at first moved into an apartment with her boyfriend. This man was not the infant’s father. When that didn’t work out, Alice tried moving in with her sister, an arrangement which was deemed overcrowded by her caseworker. Ms. Setcavage was asked at the hearing why she included “independent living” as one of the goals. She replied that her primary objection to the Waite’s home stemmed from the circumstance surrounding the infant’s hospitalization. She felt that the infant was not adequately supervised in that home and that “there still was a potential danger in the home to Larry.” Ms. Setcavage also offered testimony regarding the regularity of Alice’s visits with her child while the infant was in the care of foster parents. According to Ms. Setcavage, Alice was permitted to and did see her son on a specified day every week throughout the year. On other occasions, Alice also would ask permission to see her son on additional days, and these requests were granted “on special occasions.” Ms. Setcavage was asked if she ever observed Alice with her child. She replied affirmatively and elaborated thusly:

I observed that Alice, um, showed a concern for Larry in that she played with him, enjoyed his company. Their relationship seemed to be one of an older sister type of thing. She liked to play with him; however, I think that the questions usually came as far as Larry’s care came from Mrs. Waite and usually both of them were present when I saw Alice interact with Larry.

Ms. Setcavage acknowledged that Alice was only sixteen at the time of her observation.

Also testifying at the hearing were Alice’s parents. Both were asked about the fateful incident involving Larry. They each testified that on the evening in question, Mr. Waite was sleeping in the back bedroom while Mrs. Waite was watching the television in the “front room.” The couple’s teenaged son was asleep on the couch. Young Larry had been put in his bed in the middle room, which was adjacent to Mr. Waite’s room, at approximately 8:00 p. m. Around midnight, Mr. Waite awoke and went into Larry’s room to check on the child, but he discovered that Larry was not there. The family began searching the house for the child. About a half an hour later, the Waite’s adolescent nephew, Charles Williams, came home and suggested that a search be conducted outside, and he took a flashlight and proceeded to search the yard. Ten minutes later, Charles found Larry cold and unconscious by a fence in the yard. The Waite’s surmised that 16 month old Larry, who insisted upon wearing his shoes with his pajamas to bed that night, climbed out of his crib, walked past the sleeping Mr. Waite in the next room, went through the kitchen and into the yard. It was said that Larry could open the kitchen door because the lock on the door was broken. Alternatively, the Waite’s suggested that their nephew, Charles, had something to do with the incident because he was said to be jealous of the attention showed to Larry. Because of this latter suspicion, Charles was banished from the Waite’s home.

Alice Waite, appellant, was also called to the stand. She testified regarding her efforts to comply with the “goals” established by her caseworker. Alice said that she “had applications in everywhere,” at various restaurants, fast-food chains, and hotels (for work as a maid), however, no one was interested in hiring her because of her age. She also stated that she had signed up for O.I.C., but that she was never called by them. As for the parent training course, Alice admitted that she only attended one of the classes but she explained that after she started the class, her father had a heart attack and she had to spend time with her family. Additionally, Alice said that since she only saw her son once a week, she didn’t see the relevancy of the class to her situation. Her testimony regarding her attempts to establish a home apart from her parents generally coincided with that of Ms. Setcavage. Alice indicated that she made two attempts to find a place—once with her boyfriend and once with her sister—but neither of these arrangements was successful.

In other testimony, Alice said that while she was detained at the Waynesburg Center, besides attending classes she also attained a certificate in child care. She said that she was awarded this certificate after having “completed a course for this” and acted as a substitute schoolteacher for preschool children for the entire length of her five month stay at Waynesburg. Furthermore, at the hearing on July 28, 1981, Alice testified that she had again signed up for the parent training course and for classes with O.I.C. to train her in various types of office work and she indicated that both courses were to start in September.

When this Court is asked to review an involuntary termination of parental rights, our scope of review is limited to determining whether the court’s decree is supported by competent evidence. In re Adoption of M.M., 492 Pa. 457, 424 A.2d 1280 (1981). The adjudication of the Orphan’s Court will not be disturbed if “the record is free from legal error and.. .if the chancellor’s findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence.” In Re Burns, 474 Pa. 615, 624, 379 A.2d 535, 540 (1977). As the Supreme Court said In re Adoption of P., 475 Pa. 197, 380 A.2d 311 (1977), the fact-finding function of the hearing judge and his unique opportunity to observe the witnesses and to apprise their credibility is to be recognized. Nevertheless, the Court noted that the appellate courts may not abdicate the responsibility of considering all of the testimony and determining whether those findings are supported by competent evidence. The Court wrote,

[W]e also have a responsibility to make certain that the trial court has properly interpreted the law in relationship to the express findings of facts and other uncontradicted testimony which was not expressly rejected by the trial court. While we will not usurp the trial court’s right to assess the credibility of the witnesses appearing before him, we will not condone his ignoring facts which are of record and the credibility of which is not challenged.

Id., 475 Pa. at 204, n. 6, 380 A.2d at 314 n. 6.

In the instant case, the court extinguished Alice’s parental rights on the basis of Section 311(1) of the Adoption Act of 1970, which provides:

The rights of a parent in regard to a child may be terminated. . ., on the ground that (1) the parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

Of this section, our Supreme Court has said:

Under this provision, it must be established by a preponderance of the evidence[] that for a period of at least six months appellants either evidenced a settled purpose of relinquishing their parental claim or that they have refused or failed to perform their parental duties. Adoption of Farabelli, 460 Pa. 423, [333] A.2d 846 (1975). The question of whether a parent has evidenced a settled purpose of relinquishing parental claim to a child must be analyzed in relation to the particular circumstances of the case. In re D.J.Y., 487 Pa. 125, 408 A.2d 1387 (1979); In re Burns, [474 Pa. 615, 379 A.2d 535 (1977)]:

In re Adoption of M. M., supra, 492 Pa. at 460, 424 at 1282.

For purposes of Section 311(1), it has long been held that inaction or lack of interest in a child for a period in excess of six months will not, standing alone, conclusively establish the required settled purpose of relinquishment; rather, it is required that there be a deliberate decision on the part of the parent to terminate the parental relationship and that the parent persisted in that determination throughout the six-month period. Adoption of Farabelli, supra.

Turning now to the court’s ruling in the instant case, we find that the court’s decision is premised primarily on the fact that as of March 1980, when appellant’s visitation rights were cut off, appellant had “not seen the child since then and had not contacted the Agency or the caseworker to inquire about the child.” We find that this basis for the court’s decision must be rejected as a “Catch-22”. Alice was forbidden by Children’s Services from contacting her child; Alice cannot, therefore, be held accountable for her failure to continue visiting her child as she had been doing. Neither do we find the court’s latter conclusion to be a basis upon which to terminate parental rights. The rule is that a parent is to maintain a place of importance in his child’s life, which means that the parent has an affirmative duty to “love, protect, and maintain communication and association with that child.” In re Adoption of McCray, 460 Pa. 210, 216, 331 A.2d 652, 655 (1975). It must not be forgotten, however, that the measures taken by the parent to demonstrate his or her interest in a child must be viewed in light of the existing circumstances. In re Adoption of Infant Male a/k/a J.P.M., 458 Pa. 77, 401 A.2d 301 (1979). In the instant case, owing to the position of Children’s Services regarding appellant’s visitation rights, communication and association with the child by appellant were prohibited. In this respect, appellant’s case is more akin to those cases where the court found that the custodian of the child prevented the natural parent from performing the duties, such as communication and association, that otherwise would have been required. See, e.g. In re D.J.Y., 487 Pa. 125, 408 A.2d 1387 (1979); In re Adoption of Vaders, 444 Pa. 428, 282 A.2d 359 (1971). More pertinent conclusions can be deduced from an examination of appellant’s conduct during that period in which visitation was permitted, which would be from March 1979 to March 1980. During this time, Alice saw her child at least once a week, for half a day. These visits were not supervised by the caseworker, although Ms. Setcavage did on occasion observe them. During the visit appellant would enjoy various activities with Larry, such as going to the zoo. The record also indicates that appellant requested additional visits, which were granted to her on special occasions. This evidence hardly describes a mother with “no interest whatsoever” in her child, as was the lower court’s conclusion. We therefore find this part of the court’s decision to be without factual foundation.

Yet this does not end our review, for while the court gave the most weight to the evidence of visitation, that was not the sole consideration of the court. The court also found that appellant “[did] not follow through on any of the points ordered by the Juvenile Court [sic] to make herself a fit mother. She failed to go to school or to get a job and failed to take any of the suggested ways to improve herself in attempting to learn how to handle this child.” We find this ruling to be without factual support for several reasons. Firstly, and most importantly, there was no evidence introduced from any source showing appellant to lack parenting skills. Children’s Services’ initial contact with the Waite family was because of an incident which indisputably had nothing to do with appellant’s care of Larry. The record contains no complaints regarding appellant’s fitness as a mother, either during the year preceeding the incident or when appellant took the child out while it was in foster care. Therefore, the evidence does not demonstrate that appellant needed to take a parenting course or make other changes in order to be a fit mother.

Secondly, while the court ruled on appellant’s failure to satisfactorily meet the goals established for her by her caseworker, the court made no examination of the goals themselves. While it might well be true that a caseworker has only the best of intentions when he establishes goals for his clients, it should nevertheless be recognized that the source of these goals is the caseworker himself, not legislative mandate. Speaking generally of the role of child welfare workers operating within the loose framework which is characteristic of most statutes in this area of law, one commentator stated the problem thusly:

Neglect, for the most part, is a subjective condition that is more easily described than defined. Statutory phraseology is typically vague and intentionally equivocal. If it were not for the special need for flexibility, such statutes would probably be held unconstitutionally vague. Judge [Patrick R.] Tamilia has noted that the protection of parents from ambiguous standards lies in the wisdom of judges rather than the detail of statutes. Initially, this informality is subject to criticism under Gault, [In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) ] but a realistic appraisal requires a critic to accept such flexible determinations. However, if it is the “whim” of the caseworker rather than the “wisdom” of the judge that determines the case, the reality is much less acceptable. Nor does the myth of agency expertise overcome the lack of standards, for as observed by Tamilia, “[sjocial work as a profession does not provide any clearer a criteria of what constitutes neglect than does the law.” Indeed, studies have shown that caseworkers cannot agree on the operative threshold of deprivation.
It is accurate to say that “casework is really not scientific at all in the sense that it makes a relentless unbiased examination of all the facts,” but rather “rests on an a priori system of values.” With this wilderness of unarticulated values, perhaps the touchstone of neglect is not poverty, but the caprice of the caseworker. Potential caseworker misperception of a need for state intervention into family privacy must therefore require effective screening mechanisms to protect the interests of parents and their children.

In the case at bar, two of the goals which appellant was faulted for failing to achieve were the establishment of independent living arrangements and finding employment to support herself and her son. It is questionable whether a just society should require a minor parent to emancipate him—or herself as a Condition for forestalling the termination of such minor’s parental rights. The feasibility of goals of this nature should be examined when a court is ruling on a termination petition. As an example, we refer to the fact that minors can be employed only in jobs that meet the strictures set forth in the child labor laws. The record shows that appellant did make an effort to meet the goals demanded of her and, in view of her age at the time, we find that her lack of success in this area cannot be greatly weighed against her.

Accordingly we find that the evidence fails to support a finding that appellant evidenced a settled purpose of relinquishing her parental rights. While the infant Larry was in foster care, appellant visited the child regularly and frequently up until the time that her visitation privileges were cut off. Additionally, appellant did work towards the satisfaction of the various goals imposed upon her.

Reversed.

      . The parental rights of the child’s natural father, Larry Barnett, Sr., were terminated by court order on October 9, 1980. The petition to terminate the father’s rights was filed on the same date as was the petition to terminate appellant’s rights, that is, on July 22, 1980, however, the hearings on the two petitions were conducted separately. The only witness appearing at the hearing on the petition was a caseworker from Children’s Services, Georgeann Setcavage. According to her testimony, there had been entered a court order on an unspecified date directing the father to pay $25.00 per week in child support. After this hearing, the father’s parental rights were terminated and he has not appealed from this order. We note for completeness, however, that the involuntary termination of the father’s parental rights does not necessarily end his obligation to pay child support. Although the issue has not yet been decided in the context of an involuntary termination, in Commonwealth, Dept. of Public Welfare ex rel. Hager v. Woolf, 276 Pa. Superior Ct. 433, 419 A.2d 535 (1980), we ruled that a voluntary relinquishment of parental rights does not end the obligation to pay child support, absent the subsequent adoption of the child by another. The Hager case was decided under The Adoption Act of July 24, 1970, P.L. 620, §§ 311 et seq., 1 P.S. §§ 311 et seq.
      However, the new act specifically directs that a decree terminating parental rights will also terminate the obligation of support. The Act of 1980, Oct. 15, P.L. 934, No. 163 § 1 (Supp.1982). Nevertheless, the instant case proceeded under the earlier version of the law, see The Adoption Act of July 24, 1970, P.L. 620, Section 313, 1 P.S. § 313, so the status of the support order for Larry is not settled.

      . Recently, the United States Supreme Court held that under the due process provisions of the Fifth and Fourteenth Amendments of the U. S. Constitution, a state may not terminate the right of a parent to his or her child unless it is shown by “clear and convincing” evidence that the statutory grounds for termination exist. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Because we find that the evidence in the instant case failed to meet even the lesser standard of a preponderance, we need not decide whether the higher standard for termination of parental rights, found in Santosky applies to appellant’s case. See In re Adoption of M.E.T., - Pa.Superior Ct.-,-n. 3 (June 25, 1982).

      . A comparable type of fact scenerio in the context of visitation while a child is in foster care, but prior to the filing of a termination petition, has been the subject of comment by one commentator in an article specifically addressing cases under Pennsylvania law. This author noted “that often caseworkers discouraged parents from visitations and then alleged in subsequent parental right termination proceedings that these parents had manifested indifference because of little or no visitations____ Although parents have claimed in abandonment proceedings that they have contacted agencies or have attempted to contact agencies concerning the welfare of their children while in foster care, the courts have not been receptive to this argument.” Levine, Caveat Parens: A Demystification of the Child Protection System, 35 U.Pitt.L.Rev. 1, 20 n. 110 (1973).

      . See Wald, State Intervention on Behalf of “Neglected” Children: A Search for Realistic Standards, 27 Stan.L.Rev. 985, 1000 (1975).

      . Levine, supra, note 4 at 17-18 (footnote omitted). See also Lowry, The Judge v. The Social Worker: Can Arbitrary Decisionmaking be Tempered by the Courts? 52 N.Y.U.L.Rev. 1033 (1977); Tamilia, Neglect Proceedings and the Conñict Between Law and Social Work, 9 Duq.L.Rev. 579 (1971).

      . See 43 P.S. §§ 41 et seq. (Supp.1982).


author: McEWEN, Judge:

text:
    450 A.2d 1363
    COMMONWEALTH of Pennsylvania v. Derrick STARKS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 22, 1982.
    Filed Sept. 17, 1982.
    Petitions for Allowance of Appeal Denied Dec. 29 & May 4,1983.

      Jack M. Myers, Philadelphia, for appellant.

      Sarah B. Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   McEWEN, Judge:

We here review an appeal from the judgment of sentence imposed after the conviction of appellant by a jury of charges of robbery, murder in the second degree, possession of an instrument of crime and conspiracy. The distinguished Philadelphia Common Pleas Court Judge Charles P. Mirarchi sentenced appellant to concurrent terms of ten to twenty years for robbery, five to ten years for conspiracy and two and one-half to five years for possession of an instrument of crime and, in addition, to a term of life imprisonment for the second degree murder to be served consecutively to the sentence imposed for robbery. We affirm the decision of the Common Pleas Court but are compelled to vacate the judgment of sentence and remand for resentencing.

On February 1, 1979, at approximately 9:30 p.m., Thomas Supplee knocked at the door of a home in Philadelphia and was admitted by Velvette Matthews. Supplee was followed by appellant and another man, both of whom carried shotguns. After appellant announced the “stick-up”, Miss Matthews began to struggle with one of the shotgun-wielding men. The commotion awakened her brother, Karl Sutton, who was upstairs. As Karl Sutton came down the stairs, appellant fired his shotgun, killing Sutton. Thereafter Miss Matthews who had known appellant for more than twelve years, identified appellant as the killer to the police and reiterated that identification at the trial during direct examination as well as during vigorous cross-examination.

Appellant challenges the use at trial of a tape recorded interview of Velvette Matthews by one of the investigating detectives. The several attacks on the tape recording have no merit. The defendant first complains that .he was not informed, prior to trial, of the existence of the tape recording. The Commonwealth had provided appellant, in compliance with a court ruling at discovery proceedings entered pursuant to Pa.R.Crim.P. 305, with the written statement which Miss Matthews had made to police immediately after the crime. However, the Commonwealth was not advised by police that a tape recording was made during the course of that interview with Miss Matthews until after the trial in this matter commenced. The Commonwealth immediately advised defense counsel and made it available. The court offered counsel the opportunity to litigate whatever issues and employ whatever procedures counsel for appellant might deem desirable by reason of this belated disclosure, and even offered to recess the trial for any necessary examinations. The Court clearly complied with Pa.R.Crim.P. 305(E). Defense counsel did not find it necessary to avail himself of these offers. Under these circumstances no prejudice to the defense resulted and it cannot be said appellant was denied a fair trial. See Commonwealth v. Glass, 495 Pa. 405, 434 A.2d 707 (1981); Commonwealth v. Parente, 294 Pa.Super. 446, 440 A.2d 549, 552 (1982).

The defense next challenges the tape recording on the ground that no adequate foundation for its admission was laid. The Supreme Court of this Commonwealth has stated that:

[TJape recordings are admissible in evidence when they are properly identified and are a true and correct reproduction of the statements made, and when the voices are properly identified. Commonwealth v. Bolish, 381 Pa. 500, 524, 113 A.2d 464, 477 (1955).

The record clearly indicates that the interviewing detective not only identified the tape in its original physical form, but also identified the voices and the opening contents of the recording. There is no merit to this claim.

Appellant further argues that the accidental playing before the jury of a quite brief part of the tape which had been ordered redacted was such that his mistrial motion should have been granted. The court found, however, that the short redacted portion, inadvertently played, contained no prejudicial material. The record reflects that this brief excerpt did not involve the appellant, was not inculpatory and did not impair the defense of the appellant in any fashion. It is to be further noted that the trial judge provided immediate cautionary instructions to the jury. We accept the definition of harmlessness as expressed by the Pennsylvania Supreme Court in Commonwealth v. Story, 476 Pa. 391 at 417, 383 A.2d 155 at 168 (1978):

We adopted the standard that an error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict.

Our review of the record leads us to conclude the error could not have contributed to the verdict.

The defense assigns as further error that the lower court did not permit a defense witness, Janice Wallace, to testify concerning an alleged dying declaration. The offer of proof by the defense suggested that Janice Wallace would testify that her brother, Tony, was shot in July of 1979; that while in the hospital emergency room, and believing he was about to die, Tony wrote her a short note which stated that he had killed Karl Sutton, the decedent herein; that several weeks later Tony left the hospital, ostensibly recovered, and thereafter lived uneventfully for some six months until December 1979 at which time he died. It was in this interim period that Janice Wallace, believing her brother recovered, destroyed the aforementioned short note.

The Supreme Court has “never held that simply because a declarant did in fact die is enough to make the statement into a ‘dying declaration’ so as to be excepted from the hearsay rule.” Commonwealth v. Little, 469 Pa. 83, 87, 364 A.2d 915, 918 (1976). The law is clear that a purported dying declaration shall not be admissible unless it is clearly established that the declarant: (1) was dying in fact; (2) believed such to be true; and (3) did die as a result of that mortal condition. Appellant did not do so and, therefore, the trial court properly exercised its discretion in excluding the alleged dying declaration. See Commonwealth v. Knable, 369 Pa. 171, 176, 85 A.2d 114, 117 (1952):

Whether the attendant facts and circumstances of the case warrant the admission of a statement as a dying declaration is in the first instance for the court....

While we find that no error occurred during the trial, we do, nonetheless, remand for resentencing. The sentencing judge imposed consecutive sentences and directed that the initial sentence upon the conviction for robbery was to be followed by the sentence upon the conviction for second degree murder committed during that robbery.

The sentencing judge did not err since such consecutive sentences were permissible at the time that the judge imposed the sentence. Since that time, however, during the within appeal proceedings, the Pennsylvania Supreme Court, in Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981), ruled that the imposition of such consecutive sentences violates the double jeopardy clause of the Fifth Amendment to the United States Constitution for the reason that the robbery was a constituent offense of the felony-murder offense. The Pennsylvania Supreme Court in Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905 (1981) clearly expressed as principle:

Certainly fairness demands that relief be granted not only in the first case which successfully contests a rule of law but also in all other cases pending on direct appeal which suffer from the same infirmity. To do otherwise in all criminal proceedings is to impose an unwarranted hardship on defendants which affects their most fundamental rights of life and liberty, while serving no legitimate societal interest in applying an offensive law no longer valid. 494 Pa. at 385-86, 431 A.2d at 908.

We are obliged, therefore, to vacate the sentence and remand the case to the Common Pleas Court for the imposition of sentence in accordance with Commonwealth v. Tarver, supra. The Tarver trial involved a 1968 murder tried under the 1939 Penal Code (as amended). The instant case involves a 1979 murder tried under the 1972 Penal Code (as amended). Any differences in the definitions of “murder of the first degree” in the 1939 statute and “murder of the second degree” in the 1972 statute, do not affect the holding of Tarver, supra, or its applicability here.

In all other respects, the actions of the lower court are affirmed.

Jurisdiction is relinquished.

      . Pa.R.Crim.P. 305: * * *
      E. Remedy
      If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances. ,

      . It does not appear, however, that the conviction of conspiracy and the conviction of possession of an instrument of crime merged with either the conviction for robbery or the conviction for murder in the second degree.

      . 18 P.S. § 4701. Murder of the first and second degree
      All murder which shall be committed in the perpetration of, or attempting to perpetrate any ... robbery ... shall be murder in the first degree---- 1939, June 24, P.L. 872, § 701; 1959 Dec. 1 P.L. 1621, § 1.

      . 18 Pa.C.S.A. § 2502. Murder
      (b) Murder of the second degree.—A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
      (d) Definitions....
      “Perpetration of a felony.” The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery. ... 1972, Dec. 6, P.L. 1482, No. 334, § 1, eff. June 6, 1973; as amended 1974, March 26, P.L. 213, No. 46, § 4, imd. effective; 1978, April 28, P.L. 84, No. 39, § 1, effective in 60 days.


text:
    450 A.2d 1366
    W. James BEAMSDERFER, Administrator of the Estate of Melissa Beamsderfer, Appellant, v. DONEGAL MUTUAL INSURANCE CO.
    Superior Court of Pennsylvania.
    Submitted May 3, 1982.
    Filed Sept. 24, 1982.
    Anthony J. Gerace, Jr., State College, for appellant.

      George R. Klotzbaugh, State College, for appellee.
    Before CERCONE, President Judge, and ROWLEY and CIRILLO, JJ.
   CERCONE, President Judge:

The disposition of this case is controlled by Freeze v. Donegal Mutual Ins. Co., 301 Pa.Superior Ct. 344, 447 A.2d 999 (Opinion by Cercone, P. J.).

This is an action for post-mortem work loss benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act brought by the estate of a minor killed in an automobile accident July 21, 1980. The estate requested payment of post-mortem work loss benefits, but the appellee insurance company refused to pay, at which point the estate filed the instant law suit. Appellee filed a motion for judgment on the pleadings, which motion was granted and judgment entered. This timely appeal by the estate followed.

Melissa Beamsderfer was thirteen years of age at the time of her death. Like John Freeze, she had never worked. In granting the insurance company’s motion for judgment on the pleadings the lower court concluded that only “victims or the survivors of deceased victims” can recover under the Act. It essentially drew the same distinction between “victim” and “deceased victim” which we thought we had laid to rest when we decided Heffner v. Allstate Ins. Co., 265 Pa.Superior Ct. 181, 401 A.2d 1160 (1979). The court went on to conclude that although Melissa’s parents fit the definition of “survivors” under Section 103 of the No-fault Act since they had admitted their lack of dependency they could not collect the post-mortem work loss benefits. The court also concluded that to allow the parents to collect would constitute a windfall.

The lower court clearly erred when it ignored the import of the twin Heffner decisions. The No-fault Act makes no distinction between “victim” and “deceased victim” insofar as work loss benefits are concerned. Moreover, in considering the question of survivorship it entirely missed the point of the cause of action before it. This was not a suit by the parents for work loss to their daughter, it was a suit by the estate! The parents’ survivorship is entirely irrelevant to this action for post-mortem work loss benefits. As we recently indicated in Freeze v. Donegal Mutual Ins. Co., supra, survivorship is simply not pertinent to an action by an estate for work loss benefits. Since we have again ruled that survivorship is not pertinent to whether an estate may collect post-mortem work loss benefits we need not address the question of whether the court erred in ruling that the parents of a deceased victim must show “dependency” in order to collect survivors loss benefits. That question is not relevant here. Cf., Chesler v. Government Employees Ins. Co., 302 Pa.Superior Ct. 356, 448 A.2d 1080 (1982) (Opinion by Cercone, P. J.) (Refutes notion that all “survivors” of a deceased victim, spouses excepted, must show dependency in order to collect survivor’s loss benefits.)

Because the lower court granted the insurance company’s motion for judgment on the pleadings erroneously we now reverse and remand the case for further proceedings consistent with this opinion.

Reversed and remanded.

      . Act of July 19, 1974, P.L. 489, No. 176; 40 P.S. §§ 1009.101 et seq. (Supp. 1980-81). Hereinafter referred to as the Act or the No-fault Act.

      . See Freeze v. Donegal Mutual Ins. Co., supra.

      . Aff'd sub nom. Allstate Ins. Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980).

      . “ ‘Survivor’ means:
      (a) spouse; or
      (b) child, parent, brother, sister or relative dependent upon the deceased for support.” 40 P.S. § 1009.103

      . Exactly how collection of payments for losses insured under a paid-up policy of insurance constitutes a windfall is unclear. To our minds insurance companies are in the business of insuring against the risk of loss. They are not merely in the business of collecting premium payments.

      . But see, Midboe v. State Farm Mut. Auto. Ins. Co., 8 D. & C. 3d 83, aff'd per curiam 261 Pa.Superior Ct. 447, 395 A.2d 991 (1978) (Without opinion), aff'd by an evenly divided court, 495 Pa. 348, 433 A.2d 1342 (1981).


text:
    450 A.2d 1368
    COMMONWEALTH of Pennsylvania v. Hugh SWEEPER a/k/a Hughie Green, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1981.
    Filed Sept. 24, 1982.

      John W. Nails, Chester, for appellant.
    Helen Kane, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   SPAETH, Judge:

This case rises on two appeals, which have been consolidated. Each appeal is from a judgment of sentence for engaging in a lottery in violation of 18 C.P.S.A. 5512. On the first appeal, Case No. 4224 below, we affirm. On the second, Case No. 5434 below, we reverse and award a new trial because the prosecutor’s closing address exceeded the limits of propriety.

Case No. 4224

On August 6, 1979, Sergeant Conway, the officer in charge of the vice unit of the Chester Police Department, received information that “Jane Doe,” for whom the police had a warrant, had been seen at appellant’s store at 1726 West 3rd Street in Chester. Acting on this information, Sergeant Conway and Officers Blythe and Jones drove past appellant’s store, and saw a woman matching the description of Jane Doe standing outside. The officers parked their car and walked towards the store. Officer Jones entered first by following a man who knocked prior to entry. Inside the store he saw three men, including appellant. On the store’s counter, nearest appellant, were four slips of paper and some cash. No one saw appellant take the cash, but the cash disappeared and Officer Jones, who was watching the other two men, testified that neither of them had touched it. After a moment or so, the other officers entered. Sergeant Conway looked at the slips on the counter and decided that they were “illegal lottery plays.” N.T. 12/5/79, 59. One of the other officers told him that appellant “should have money in his pocket.” Id., 58. The sergeant “advised [appellant] that he was under arrest and had him dump his pockets out on the counter.” Id., 59. Appellant had $140.15. Id. The plays on the slips added up to $113. Id., 97.

In questioning the sergeant at trial, counsel for appellant suggested that the slips on the counter were the work of a numbers player, not of a writer. Id., 70 et seq. However, the jury resolved this issue against appellant. Appellant argues that the sergeant’s admissions that “There could be another explanation for the duplications [of numbers on the slips] other than the fact that the possessor of those slips was a number writer” rendered the evidence insufficient, Brief for Appellant at 20, but despite some concessions, the sergeant remained firm in his opinion, and we think this issue too was for the jury. Appellant also argues that the evidence was insufficient “to show that [appellant] was the one in possession of the numbers,” Brief for Appellant at 19, but again, given the evidence of appellant’s proximity to the slips on the counter of appellant’s store, we think this issue was for the jury, and that it was entitled to conclude that a lottery was in operation on appellant’s premises and that appellant was engaged in it.

Appellant also argues that the “Jane Doe warrant” did not give the police authority to enter appellant’s store. However, we need not consider the validity of the warrant.

It is well established that when an officer sees contraband or other objects in plain view and has not intruded into a constitutionally protected area, his observation is not a search within the meaning of the fourth amendment. Thus while an officer is not forced to disregard that which is patently clear to him, the doctrine is only applicable when he is in a place where he has a legal right to be. In the instant case, then, the essential issue is reduced to whether the interior of appellees’ club [here, appellant’s store] was a constitutionally protected area and whether the officers had a legal right to be inside the premises when they observed the gambling paraphernalia and effected the arrests. If they had such a right, then their observation of the gambling paraphernalia was sufficient to form probable cause to arrest and seize the immediate evidence.
Commonwealth v. Weimer, 262 Pa. Superior Ct. 69, 73-74, 396 A.2d 649, 651 (1978) (citation omitted).

Appellant argues, however, that his store was a “constitutionally protected area.” In support of this argument, he asserts that “a special knock was required [to gain entrance].” Brief for Appellant at 16.

In order for . . . constitutional protection to attach .. . the individual must harbor a reasonable and justifiable expectation of privacy within the area in question. The reasonableness of one’s expectations will necessarily turn on the facts in the individual case evincing the strength of that belief and the measures taken to ensure privacy. Id.

Appellant’s assertion that a special knock was required, and that that demonstrates his expectation of privacy, is belied by one of appellant’s own witnesses, who testified that appellant was running a public store:

Q. Mr. Hughes, what were you doing in this place?
A. Well, we just hang out there, buy cigarettes and soda.
Q. How many people hang out there?
A. Oh, I couldn’t tell you that. That’s a public place a storefront.
Q. It is a public place?
A. Uh huh.
Q. Store front?
A. Yeah.
Q. What do they sell there?
A. Sold different things.
N.T. Suppression Hearing Jan. 3, 1979.

Even discounting the testimony of this witness, appellant failed to make out a reasonable expectation of privacy. In Commonwealth v. Weimer, supra, the defendant ran an illegal gambling operation in a hunting club. There was a one way glass in the front door to allow persons inside to see who was outside and a buzzer system to let people in. Two plain clothes officers entered without having to show membership by walking in with four people unknown to them. We dismissed the defendant’s fourth amendment claim, saying:

This lax enforcement of purported security measures indicates that appellee’s expectation of privacy was hardly justified.
Commonwealth v. Weimer, supra, 262 Pa.Superior at 75-76, 396 A.2d at 652.

Similarly, in this case, appellant had no reasonable expectation of privacy in his store, when, if there was a requirement of a special knock, he made no effort to enforce it.

Appellant’s remaining argument is that the slips and cash should have been suppressed as evidence because they were seized as a result of an illegal arrest. He argues that his arrest was illegal because it was a warrantless arrest for a misdemeanor but the police did not see the misdemeanor being committed in their presence. Brief for Appellant at 17-18. We are not persuaded by this argument.

As we have mentioned, Sergeant Conway, whose qualifications are not challenged by appellant, testified that the slips on the counter of appellant’s store were the work of a writer. In explaining the relationship between a writer and a player the sergeant said:

The writer will ask the player do you have a copy of the number that you are playing with me. If the writer doesn’t have the copy or if the player doesn’t have the copy of the slip that he is handing the writer, that’s his only receipt, the writer will record the number plays and give him back his slip and keep the money. In certain instances a player will have a duplicate slip. He will note what he has played. Therefore he will tell the writer to keep the slip. That in turn is his ticket also. In other words, the next day if he hits [wins] he comes back and he produces a slip.
N.T. 92.

Officer Jones was entitled to believe that the slips were appellant’s (for they were on his store counter and he was the person closest to them) and that the cash next to the slips had been put there by someone other than appellant (for why would appellant put his own cash on the counter?), and, further, that appellant had taken the cash (for it disappeared, and neither of the other persons in the store had taken it). When Officer Jones’s knowledge is combined with Sergeant Conway’s, the conclusion follows that the police had probable cause to believe that appellant was at that very moment engaged in writing numbers.

Case No. 5434

The police entered appellant’s store a second time on October 9, 1979. Officer Bentley “walked inside with the crowds of people that were entering,” N.T. 27; “[pjeople were coming and people were leaving,” N.T. 28. Once inside the store he observed a “Mr. Gelis” handing a slip of paper and some money to appellant and overheard him tell appellant, “I want all of these for a quarter,” N.T. 30, “straight for a quarter,” N.T. 74. The officer “went to retrieve the paper” but Gelis “had snatched it back” from appellant. Id. When the officer identified himself, Gelis gave him the paper. The ofifcer, who was qualified at trial to give his opinion, examined the paper and noted 29 numbers written on it, and concluded that it had been “used to place a bet in an illegal lottery.” N.T. 75. (He explained that the lowest bet that could be placed in the legal Pennsylvania lottery was fifty cents. Id.) The police later took $1,581.77 from appellant’s person, and discovered three other slips of paper with numbers on them, also, in Officer Bentley’s opinion, representing numbers bets.

Appellant argues that this evidence was insufficient to support his conviction, but the argument is -without merit. Commonwealth v. Polite, 190 Pa. Superior Ct. 329, 154 A.2d 287 (1959). He also argues that the police entry of his store was illegal, but we have already considered and rejected that argument, in deciding his other appeal; the store was open to the public and appellant had no reasonable expectation of privacy within it.

Appellant also argues that the prosecutor’s closing argument was improper. Appellant called two witnesses in his defense. They testified to the effect that they were present when the police arrived and that the only thing that happened was that Mr. Gelis entered the store with a slip of paper in his hand and the police took it from him. Both witnesses said that Gelis did not approach appellant or give the paper to appellant. N.T. 190-91, 216. Also, both denied seeing any money or any other papers. N.T. 193, 218. During the prosecutor’s closing argument, the following occurred:

MR. NAILS [defense counsel]: May I approach the bench?
THE COURT: Do you object?
MR. NAILS: Yes, Your Honor.
(Whereupon a sidebar discussion was held, as follows):
MR. DelBELLO [prosecutor]: My statement in sum was that the testimony of the defense witnesses was to the effect that there were, that there were no illegal bets, there were, in fact none of those documents were in the premises.
I said that if they believed that, if they accept that as true, then they should castigate me in essence for bringing a case that would be founded upon evidence fabricated by the police.
THE COURT: What is your objection?
MR. DelBELLO: I believe that.
THE COURT: What was your objection?
MR. NAILS: Your Honor, basically—
THE COURT: Do you agree that is what he said?
MR. NAILS: Something to that effect, Your Honor. And the statement prior to that was, there was another statement prior to that that was that they should call him a big fool.
MR. DelBELLO: Yes, I agree. I should be a fool to present that kind of testimony, perjured testimony.
MR. NAILS: Well, Your Honor, first of all, my objection is that basically he is telling the jury if they believe that, then they should get rid of him. And I just don’t think that that’s, you can ask the jury to make those kind of inferences.
It is basically telling them, you know, that they have to believe the police. And I just don’t think—
THE COURT: Well, I don’t see anything wrong with that kind of statement. Mr. DelBELLO is saying really, all that he said is look, you don’t think that these people were there, and you believe that they were there, and I am simply asking you what are they doing here.
Are you saying—I mean, he is not saying don’t believe them, don’t believe the defense. He is not saying that the defense is a liar.
MR. DelBELLO: No.
THE COURT: But he is attacking the credibility, and— MR. NAILS: Well, Your Honor, I don’t object to— THE COURT: I don’t think that he has overstepped any bounds to be so prejudiced as to warrant—well, I mean, what would you want me to do?
MR. NAILS: Your Honor, I would ask for a mistrial at this point.
THE COURT: Well, that motion is denied.

We are unable to agree with the lower court’s characterization of the prosecutor’s argument. In our opinion, it was highly improper, and requires that a new trial be granted.

It is a long-settled, and often stated, principle that the prosecutor “may not express to the jury a personal belief as to the guilt or innocence of the accused.” Commonwealth v. Maloney, 469 Pa. 342, 352, 365 A.2d 1237, 1242 (1976) (citations omitted). This principle derives from the nature of the prosecutor’s office. Thus in Commonwealth v. Bubnis, 197 Pa. 542, 47 A. 748 (1901, the Court said:

It may be proper for us to say in this connection that, in his official capacity, clothed with the gravest responsibilities, and exercising functions in a measure judicial, the district attorney should ever be cautious in expressing to a jury his belief in the guilt of the accused. If convinced of it, his duty is to lead them to his own judgment by pointing out to them, intelligently and impartially, the evidence which cannot fairly justify any other conclusion. “The district attorney is a quasi-judicial officer. He represents the commonwealth, and the commonwealth demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers, as it is to see that no guilty man escapes. Hence, he should act impartially. He should present the commonwealth’s case fairly, and should not press upon the jury any deductions from the evidence that are not strictly legitimate. When he exceeds this limit, and in hot zeal seeks to influence them by appealing to their prejudices, he is no longer an impartial officer, but becomes a heated partisan:” Com. v. Nicely, 130 Pa. 261 [18 A. 737].
Id., 197 Pa. at 550-51, 47 A. at 749-50 (collecting cases).

And see ABA Standards, The Prosecution and Defense Functions 5.8 (Approved Draft, 1971).

In Commonwealth v. Maloney, supra, the prosecutor argued:

Here we have three eye-witnesses, and it’s inconceivable to me, ladies and gentlemen, that you would have the circumstantial evidence and three eye-witnesses who saw the actual perpetration of the crime and then say it’s not beyond a reasonable doubt. It’s inconceivable to me that this would happen here in our country in this courtroom. It is. If it should happen, I just don’t know. I’d probably lose faith in the judicial system. Id. 469 Pa. at 352, 365 A.2d at 1242.

In condemning these remarks as improper, and in awarding a new trial because of them, our Supreme Court made two points. The remarks were expressed in the first person singular, and thereby involved a statement of the prosecutor’s personal opinion as to guilt. Furthermore,

not only do the remarks inject the district attorney’s opinion and thus improperly add his experience and judgment to the issue of guilt, they also inject, as a deterrent to a finding of innocence, the idea that an elected district attorney will lose faith in our judicial system if guilty is not the verdict.
Id., 469 Pa. at 353, 365 A.2d at 1243.

The Court cited and quoted with approval from United States v. Schartner, 426 F.2d 470 (3d Cir. 1970). There the prosecutor said, “I say to you with all the sincerity I can muster that if you do not convict the defendant, the guilty will escape.” The Court of Appeals held that it “[could] not countenance these remarks.”

Not only do they imply a personal belief in . . . guilt, but they also indirectly invite the jury to rely on the Government attorney’s experience in prosecuting criminals generally .... Neither the prosecutor’s experience nor his moral integrity has anything to do with the evidence in the case.
Id. at 478.

The prosecutor’s argument here was more egregious even than the arguments in Commonwealth v. Maloney, supra, and United States v. Schartner, supra, being expressed in more inflammatory language. By arguing that the jury should “castigate” him “for bringing a case that would be founded upon evidence fabricated by the police,” and “should call him a big fool,” the prosecutor expressed his personal belief in appellant’s guilt in terms that could not be misunderstood; contrary to the lower court’s observation, he precisely said “that the defense is a liar.” In addition, he put his own integrity on the line, confronting the jury with the choice, either of finding appellant guilty, or of finding the police perjurers and him, an elected official, a “big fool” who had brought a case “founded upon evidence fabricated by the police.”

It is of course true that not “[e]very unwise or irrelevant remark” compels the granting of a new trial. Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973), quoting from Commonwealth v. Phillips, 183 Pa. Superior Ct. 377, 382, 132 A.2d 733, 736 (1957); Commonwealth v. Taliaferro, 273 Pa. Superior Ct. 151, 417 A.2d 213 (1979). Here, however, as was said in Commonwealth v. Maloney,

[S]ince the principal issue was credibility and since an opinion and a deterrent to crediting [the defendant’s] testimony were injected, we cannot say beyond a reasonable doubt that these factors did not [a]ffect the determination of credibility. See and compare, Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971) and Commonwealth v. Henderson, 456 Pa. 234, 317 A.2d 288 (1974). Id. 469 Pa. at 355, 365 A.2d at 1244.

The judgment of sentence in Case No. 4224 is affirmed.

The judgment of sentence in Case No. 5434 is reversed and the case is remanded for a new trial.

      . Appellant also argues in Case No. 5434 that the lower court erred in allowing the prosecutor to argue that the jury could draw an adverse inference from appellant’s failure to call a particular witness, and that the sentence was excessive. We do not reach these arguments.


author: HESTER, Judge:

text:
    450 A.2d 1374
    COMMONWEALTH of Pennsylvania v. Richard T. McCAIGUE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 9, 1981.
    Filed Sept. 24, 1982.

      D. Bruce Cahilly, Coudersport, for appellant.
    Thur W. Young, District Attorney, Coudersport, for Commonwealth, appellee.
    Before HESTER, DISALLE and MONTGOMERY, JJ.
   HESTER, Judge:

We refer to our Opinion in the companion appeal, Commonwealth v. Richard T. McCaigue,-Pa.Super.-, 451 A.2d 8, Opinion filed on September 24, 1982. The instant appeal concerns the Order of the Court of Common Pleas of Potter County, dated July 3, 1980, whereby the Honorable Harold B. Fink, President Judge, concluded “. .. that an impartial jury could not be impaneled from the eligible and available residence of Potter County, and . .. that the case shall be tried within the jurisdiction of Potter, but by a venire of persons resident in another county; ...”

Appellant, Richard T. McCaigue, raises numerous issues relating to the statutory authority and jurisdiction of the lower court to retain venue in Potter County, by impaneling a jury comprised of residents of another county. Appellant also challenges the constitutionality of this Order; and, since the Commonwealth moved for the change of venue, appellant contends that the lower court committed error and abused its discretion by issuing the Order of July 3, 1980 on the basis of insufficient evidence.

Appellant makes a compelling argument concerning the lack of statutory authority of the lower court to grant a change of venue, since the Act of 1875, March 18, P.L. 30, Section 1 et seq., 19 P.S. Section 551 et seq., has been repealed by Section 2(a) [656] of the Act of April 28, 1978, P.L. 202, No. 53 [JARA] effective June 27, 1980.

Following the repeal of the Act of 1875 by JARA, the jurisdiction of the lower court to change venue in a criminal matter is generally governed by the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, effective June 27, 1978, 42 Pa.C.S.A. Section 5106, which states:

The power to change the venue in Civil and Criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided or prescribed by law.

The problem with this statutory authorization is that it merely parrots the language of the Pennsylvania Constitution, Article 3, Section 23, thereby perhaps creating the need for further specific statutory authorization. See Pennsylvania Power & Light v. Gulf Oil Corp., 270 Pa.Super. 514, 527 n.16, 411 A.2d 1203, 1210, n.16 (1979).

It has been repeatedly held that Article 3, Section 23 of the Pennsylvania Constitution does not take away the Supreme Court’s inherent power to grant a change of venue. However, a lower court has no power to grant a change of venue, without specific statutory authorization. Commonwealth v. Sacarakis, 196 Pa.Super. 455, 464, 175 A.2d 127, 131 (1961).

Although we do not find any specific statutory authorization granting a lower court the power to order a change of venue, especially on a motion of the Commonwealth, the Judicial Code, 42 Pa.C.S.A. Section 8702 does specifically authorize “... upon motion and following a hearing, ... as an alternative to issuing an order for a change of venue the court may direct that jurors be impaneled from another county. The order for empanelment of a jury from another county shall be certified forthwith to the Supreme Court which shall designate and notify the county of impanelment.”

Although the appellant has posed some interesting arguments against the constitutionality of, and lack of statutory authorization for, the lower court’s order, we decide that the lower court’s order must be vacated due to the fact that it abused its discretion in ordering the impanelment of a jury from another county, upon motion of the Commonwealth, on the basis of the evidence presented. “. .. [T]he prosecution’s request for a change of venue should be much more strictly scrutinized than one by the accused; before the court is moved to act, there should be the most imperative grounds.” Commonwealth v. Reilly, 324 Pa. 558, 571, 188 A. 574, 580 (1936); Commonwealth v. Gelatt, 481 Pa. 559, 393 A.2d 303, 304 (1978).

Although the evidence presented to the trial court does establish that some of the citizens of Potter County may not be able to serve as impartial jurors in this matter, our review of the record reveals that the Commonwealth has not established the “most imperative grounds” required to overcome the constitutional right to “... a speedy public trial by an impartial jury of the vicinage. ...” Pa. Constitution, Article 1, Sections 6 and 9. Gelatt, Ibid.

Order reversed.

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

      . We note that the repealed Act, as amended, 1938, Sp.Sess., December 1, P.L. 109, No. 43, § 1, 19 P.S. § 555, authorized an application for a change of venue in a criminal prosecution by “... the defendant or defendants only, and not on application of the Commonwealth or the prosecutor.” Prior to its amendment on June 29, 1977, 471 Pa. XLIV, former Pennsylvania Rule of Criminal Procedure 313(a) provided that an application for a change of venue “... may be made on behalf of the defendant or the Commonwealth, ...” Present Rule of Criminal Procedure 312 does not so provide, although Pennsylvania Rule of Appellate Procedure 501 states:
      “Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom.”

      . This appeal was originally docketed in the Supreme Court, pursuant to 42 Pa.C.S.A. Section 8702. However, the Supreme Court transferred the appeal to the Superior Court. Following oral argument before the Superior Court, the panel attempted to recertify the appeal to the Supreme Court. In turn, the Supreme Court remanded for our disposition. We note all of this as a result of our continuing doubt concerning the jurisdiction of the Superior Court to entertain this appeal. First, as discussed ante, as there is presently no specific statutory authority granting a lower court the power to order a change of venue, then only the Supreme Court would have the “inherent power” to order a change of venue. However, Pennsylvania Rule of Criminal Procedure 312(a) does provide:
      “All motions for change of venue or for change of venire shall be made to the court in which the case is currently pending. Venue or venire may be changed by that court when it is determined after hearing that a fair and impartial trial cannot otherwise be had in the county where the case is currently pending.”
      The constitutional question thus becomes whether Pennsylvania Rule of Criminal Procedure 312 satisfies the need for further specific statutory authorization. Presumably, the Supreme Court is authorized by the Judicial Code, 42 Pa.C.S.A. Section 1722(a)(1) to prescribe the practice and procedure relating to a change of venue or venire in a criminal matter.
      Additionally, although Pennsylvania Rule of Appellate Procedure 311(a)(3) authorizes an appeal “... as of right from: ... An order changing venue in a criminal proceeding”, there is no specific statute or rule which authorizes an interlocutory appeal, as of right, from an order changing venire in a criminal proceeding. 42 Pa.C.S.A. Section 8702, which authorizes a change of venire, specifically requires such an order to “... be certified forthwith to the Supreme Court....” See also Pa.Rule of Criminal Procedure 312(b). In spite of our doubts concerning the jurisdiction of this Court, which we have raised sua sponte, in the interest of judicial economy and efficiency, we have addressed the substantive issues stated in this appeal, so as to avoid any further remand to this Court.