author: CIRILLO, Judge:

text:
    449 A.2d 755
    Judy FAMA, Appellant, v. Irvin SMITH v. Judy FAMA.
    Superior Court of Pennsylvania.
    Argued March 8, 1982.
    Filed May 28, 1982.
    Reargument Denied Aug. 24, 1982.
    Petition for Allowance of Appeal Denied Oct. 15, 1982.

      Gary T. Harris, Williamsport, for appellant.
    Ambrose R. Campana, Williamsport, for appellee.
    Before CAVANAUGH, WICKERSHAM and CIRILLO, JJ.
   CIRILLO, Judge:

This action in trespass arises out of injuries that Judy Fama/appellant/minor plaintiff suffered when she was struck by a vehicle driven by Irvin Smith/appellee/defendant. The jury returned a verdict for appellee. Appellant’s motions for a new trial or judgment notwithstanding the verdict were denied. Appellant filed this appeal arguing solely that the court’s charge to the jury was in error. We agree and order a new trial.

The relevant facts are as follows: The accident occurred on a four-lane, divided limited-access highway. Appellant lived with her family in a mobile home park near this highway. Appellant was six years of age at the time of the accident and her companion was a 9 or 10 year old girl. The two had passed under the highway through a conduit. They climbed the embankment, stepped over the guardrail and began to cross the highway. The appellee testified that as he rounded a slight curve on his motorcycle, he saw two girls climbing the embankment to his right about a quarter of a mile away. Appellee stated that the two girls seemed to be looking at him as they stepped over the guardrail.

The girls began to cross the highway, entered the right-hand lane and stopped in approximately the middle of that lane, at a point 500 feet away from the appellee. A pickup truck which was travelling about 200 feet in front of appellee, pulled into the passing lane and appellee followed. Appellee had been proceeding at about 55 miles per hour, upon seeing the girls he slowed to 40 or 45 miles per hour. He did not reduce his speed below 40 miles per hour. After the pickup truck passed the girls', and as the appellee approached, the younger girl ran into his path and impact occurred. Appellee testified that he did not consider stopping because the children were standing still and the eldest child was watching the traffic.

Initially, we note that the denial of a new trial is within the sound discretion of the trial court and will not be reversed absent a palpable abuse of discretion or a plain error of controlling law. Benkovitz v. Urban Redevelopment Auth. of City of Pittsburgh, 56 Pa.Commw. 523, 425 A.2d 1178 (1981). Appellant’s assignment of error is that the court erred in not applying the controlling law in its charge to the jury. It is settled that although the grant or refusal of a new trial is a matter within the sound discretion of the trial court, reversal is required where the jury has been improperly instructed. National Products Co., Inc. v. Atlas Financial Corp., 238 Pa.Super. 152, 364 A.2d 730 (1975).

The lower court charged the jury generally upon negligence and ordinary care and then more specifically as follows:

Generally speaking, a driver is not required to anticipate a sudden and unsuspected dash into the path of his car by a child. However, if there are circumstances which give the operator reason to apprehend that a child might run into a place of danger of injury by a motor vehicle, then there is a duty imposed upon the operator to exercise a higher degree of care than under ordinary circumstances. This is so because young children are known to act upon immature judgment, childish instincts and impulses. And others who are chargeable with the duty of care toward them must calculate upon this and take precautions accordingly. In this regard, the younger the child, the less mature judgment can be expected, and correspondingly, the higher degree of care is required of those chargeable with the duty of care who have reason to apprehend that the child might put himself or herself in a position of danger. It is for you the jury to assess, based on all the circumstances in a case, what degree of care was required of the defendant, Mr. Smith, in this case at the time and place in question, and whether he met that burden of care, (emphasis added)

Appellant’s assignment of error is that the trial court did not apply the controlling law in Pennsylvania, in its charge to the jury, concerning the striking of a child on a highway. Appellant asserts that the charge should have included the following instructions:

The driver of an automobile on a public highway is guilty of negligence if he, in the exercise of due care, fails to control his vehicle in such a way as to avoid striking and injuring a child who is in a place of danger for a sufficient amount of time for the driver to observe him and bring his vehicle under control.
If a child is in a place of danger on a public highway for a sufficient time for the driver of an automobile (or motor vehicle) in the exercise of due care to see him and stop his car, or otherwise avoid hitting him, the driver is guilty of negligence if he fails to do so.

The applicable law in Pennsylvania, concerning the striking of a child on a highway, was recently noted in Piccolo v. Weisenberger, 237 Pa.Super. 218, 352 A.2d 116 (1975) as follows:

The controlling law on this type of case is clear. The driver of an automobile in a public highway is guilty of negligence if he in the exercise of due care fails to control his vehicle in süch a way as to avoid striking and injurying (sic) a child who is in a place of danger (or where there is a reasonable apprehension that a child might run into a place of danger) for a sufficient amount of time for the driver to observe him and bring his vehicle under control. Geiger v. Schneyer, 398 Pa. 69, 157 A.2d 56 (1969) [Linder v. Friedel, 414 Pa. 436, 200 A.2d 771 (1964)]; Jones v. Spidle, 213 Pa.Super.Ct. 81, 245 A.2d 677 (1968). If the child should come suddenly into the path of the moving automobile so that an attentive driver who is exercising due care under the circumstances cannot in all reason avoid colliding with the child, the driver is not liable for the damages resulting. In other words, it is necessary for the evidence in the plaintiff’s case to establish that the child was visible to the driver for a sufficient length of time to give him a reasonable opportunity to avoid the accident. McAuliffe v. Constantine, 228 Pa.Super.Ct. [52 at] 55, 323 A.2d [158 at] 159 (1974).

In Berk v. LeQuin, 412 Pa. 88, 194 A.2d 136 (1963), the Supreme Court of Pennsylvania stated:

If the child was in view of the motorist a sufficient period of time for the motorist to stop to avoid a collision, he had the duty to do so and that, the failure to fulfill that duty, would spell out negligence.

The Berks court went on to cite the law as previously stated in Derr v. Rich, 331 Pa. 502, 505, 200 A. 599, 600 (1938):

The sole question in this case is whether the evidence indicates that the child was in the highway such a length of time before the accident occurred that the defendant in the exercise of due care should have seen him and avoided the accident. If this be true, then the rule does not here apply that drivers of automobiles are not required to anticipate that a child will suddenly run from a place of safety into the path of oncoming vehicles.

It is settled that when the jury charge requested is sufficiently or adequately covered by other instructions, the trial court commits no reversible error in declining to read to the jury a specific point for charge. Buchecker v. Reading Co., 271 Pa.Super. 35, 412 A.2d 147 (1979). Yet, where a charge is generally accurate, but misleads the jurors on a critical issue, a new trial should be granted. See Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). When the accuracy of a jury charge is in issue, an appellate court must look to the charge in its entirety against the background of the evidence in order to determine whether error was committed and, if so, whether that error was prejudicial to the complaining party. Smith v. Chardak, 291 Pa.Super. 173, 435 A.2d 624 (1981); Slavish v. Ratajczak, 277 Pa.Super. 272, 419 A.2d 767 (1980).

Applying the above law, we find that although the charge in the instant case was generally accurate, it is misleading. The instruction merely stated that if the driver reasonably apprehended that the child might run into a place of danger, then the driver was under a duty to exercise a higher degree of care than under ordinary circumstances. This charge did not adequately apprise the jury of what the higher degree of care would entail.

The lower court should have directed the jury to first determine whether appellant was in a place of danger or whether she was in a place of safety where there was a reasonable apprehension that she might run into a place of danger. The jury should have then been instructed that if they found appellant was in either place, the next question to be resolved would be whether the evidence indicated that appellant was in that place for a sufficient amount of time for the driver to observe her and, in the exercise of due care, bring his vehicle under control, so as to avoid striking or injuring the child.

In order to rectify the error committed, in the instructions given to the jury, we reverse the order of the lower court and remand for a new trial. Jurisdiction is not retained.

      . An additional defendant/Judy Fama, appellant’s mother, also received a verdict in her favor. The propriety of this verdict was not raised in this appeal and therefore is not before this court.

      . The instruction only addressed whether the driver reasonably apprehended that appellant might run into a place of danger. Nothing was said about the appellant being in a place of danger at the time the driver observed her on the highway.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    449 A.2d 1389
    NESHAMINY CONSTRUCTORS, INC., Appellant, v. PHILADELPHIA, PENNSYLVANIA BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO and its Affiliate Unions and Patrick B. Gillespie, Business Manager: Philadelphia, Pennsylvania Building and Construction Trades Council and John Roe and Jane Roe.
    Superior Court of Pennsylvania.
    Argued April 23, 1982.
    Filed Sept. 10, 1982.

      Walter H. Flamm, Jr., Philadelphia, for appellant.
    Leonard Spear, Philadelphia, for appellees.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   PER CURIAM:

In this appeal from a final decree refusing relief and dismissing a complaint in equity, appellant contends that the trial court abused its discretion when it refused to enjoin conduct by pickets which prevented access to a major construction site. We agree and reverse.

This is not the usual labor dispute. Neshaminy Constructors, Inc. (hereinafter “N.C.I.”) has been awarded a contract by the City of Philadelphia to perform a portion of the construction work on the City’s 330 million dollar, federally funded, Northeast Water Pollution Control Project. N.C.I. is a union employer. However, its employees are not represented by appellee, the Philadelphia, Pennsylvania Building and Construction Trades Council; they are represented by the United Steelworkers of America. Both unions are affiliated with the AFL-CIO. On March 22, 1982, when N.C.I.’s work on the project was scheduled to begin, pickets affiliated with appellee appeared at the entrance to the construction site which had been designated for use by N.C.I.’s employees and subcontractors. Their purpose apparently was to protest the awarding of the contract to an employer whose employees were represented by a union other than the Building and Construction Trades Council. The activities of appellee’s pickets were recorded by video-tape over the course of three days. These tapes were entered into evidence and examined by the trial judge. The tapes, together with the recorded testimony, have also been examined by the members of this Court. This evidence establishes beyond peradventure of a doubt that vehicles approaching the entrance were denied access to the site. When a vehicle approached the gate, one or more pickets engaged the driver in conversation while several others placed themselves in front of the vehicle. The latter pickets refused to move, and the vehicle was thereby denied entrance. The absence of violence, a fact noted by the trial judge, was attributable solely to the unwillingness of approaching vehicle operators to challenge physically the pickets stationed in front of their vehicles. Rather than attempt to force their way into the construction site, the drivers withdrew.

At the outset of the proceedings, it was stipulated by the parties, with the approval of the trial judge, that the hearing would be a final hearing and would decide whether permanent injunctive relief should be granted. The court’s order, therefore, was not one which could be reconsidered if a preliminary injunction were granted or denied. On appeal from a final decree, the standard of review is not whether there were “any apparently reasonable grounds for the action of the court below”, as is the case when the issuance or denial of preliminary injunctive relief is reviewed. See e.g.: Link Belt Co. v. Local Union No. 118 of American Federation of Technical Engineers, 415 Pa. 122, 129, 202 A.2d 314, 318 (1964); Philadelphia Minit-Man Car Wash Corp. v. Building and Construction Trades Council of Philadelphia and Vicinity, 411 Pa. 585, 589, 192 A.2d 378, 380 (1963); Mead Johnson & Co. v. Martin Wholesale Distributors, Inc., 408 Pa. 12, 19, 182 A.2d 741, 745 (1962). On the contrary, the test is whether the trial court, in entering a final decree, abused its discretion or committed an error of law. Westinghouse Electric Corp. v. United Electrical, Radio & Machine Workers of America (CIO) Local 601 et al., 353 Pa. 446, 449, 46 A.2d 16, 18 (1946) (Lower court denied injunctive relief and dismissed complaint). See also: Sack v. Feinman, 489 Pa. 152, 165-66, 413 A.2d 1059, 1066 (1980); Felmlee et al. v. Lockett, 466 Pa. 1, 7, 351 A.2d 273, 276 (1976); Krosnar v. Schmidt Krosnar McNaughton Garrett Co., 282 Pa.Super. 526, 534, 423 A.2d 370, 374 (1980).

Applying an abuse of discretion standard to the facts of the case, we are constrained to conclude that the trial court’s refusal to enter an order guaranteeing unimpeded access to the project constituted an abuse of discretion. Significantly, our determination does not require that we re-evaluate the credibility of the witnesses’ testimony, a matter best left to the trial court. The oral testimony is confirmed in this case by video-tape evidence which clearly illustrates the blocking of access to the construction site by appellee’s pickets.

The right to picket has been constitutionally guaranteed, and courts should be unyielding in their determination to protect and preserve that right. It is the voice by which working men and women assert their grievances and their rights. They should not be restricted or restrained, either directly or indirectly, from making their voices heard. However, “[fjorcibly to deny an owner of property or his agents and employees access to that property ... is in practical and legal effect a seizure or holding of that property.” Carnegie-Illinois Steel Corp. v. United Steelworkers of America et al., 353 Pa. 420, 429, 45 A.2d 857, 861 (1946). Whether accompanied by violence or not, picketing which denies access to an employer’s plant or property constitutes a seizure thereof and cannot be permitted. Wilkes-Barre Independent Co. v. Newspaper Guild, Local 120 et al., 455 Pa. 287, 290, 314 A.2d 251, 253 (1974); Westinghouse Electric Corp. v. United Electrical, Radio & Machine Workers of America, 383 Pa. 297, 300, 118 A.2d 180, 181 (1955). “[Picketing to the extent to which it is designed to seize and in effect does seize and hold the employer’s plant . .. does not fall within either constitutional, statutory, common law or equitable protection.” Id., quoting from Westinghouse Electric Corp. v. United Electrical, Radio & Machine Workers of America (CIO) Local 601, supra 353 Pa. at 457, 46 A.2d at 21.

It is of no significance that pickets impede ingress and egress at only one of several entrances to the premises. “[T]he holding of even one gateway to a plant [may] constitute[ ] a seizure....” Wilkes-Barre Independent Co. v. Newspaper Guild, Local 120 et al., supra 455 Pa. at 290, 314 A.2d at 253, citing Carnegie-Illinois Steel Corp. v. United Steelworkers of America, supra 353 Pa. at 430, 45 A.2d at 861. Neither is it necessary that those seeking entrance test the pickets or attempt to force their way through the pickets who are blocking the entrance and thereby risk violence and bloodshed. See: Westinghouse Electric Corp. v. United Electrical, Radio & Machine Workers of America, supra. Similarly, it is not controlling that some who approach an entrance are more interested in obtaining an injunction than in gaining entrance. See: Westinghouse Electric Corp. v. United Electrical, Radio & Machine Workers of America, Local 107, supra 383 Pa. at 301-02, 118 A.2d at 182. Pickets are not entitled to select or choose the persons whom they will allow to enter the construction site; they are not entitled to impair physically, by force or threats of force, free access to the construction site by any authorized person.

Although we remand for the entry of an appropriate order, we are mindful that “orders affecting First Amendment rights ‘must be tailored as precisely as possible to the exact needs of the case.’ ” Altemose Construction Co. v. Building and Construction Trades Council of Philadelphia and Vicinity et al., 449 Pa. 194, 222, 296 A.2d 504, 506 (1972) (Opinion in Support of Modification of Decree With Rejection of All Distance Restrictions and Reversal of Contempt Judgments by Roberts, J.), cert. denied, 411 U.S. 932, 93 S.Ct. 1901, 36 L.Ed.2d 392 (1973), quoting from Carroll et al. v. President and Commissioners of Princess Anne et al., 393 U.S. 175, 184, 89 S.Ct. 347, 353, 21 L.Ed.2d 325, 333 (1968). The exact need in this case is to prevent further blockage of access to N.C.I.’s entrance to the construction site. In order to preserve this access it is not necessary that picketing be enjoined or that the number of pickets be restricted. Except for blocking the entrance, the picketing members of the Building and Construction Trades Council have exhibited exemplary behavior, and there is no need otherwise to regulate their picketing activities. It is essential only that free access to the construction site be preserved.

Reversed and remanded for the issuance of a decree enjoining and restraining the appellee union, its officers, agents, representatives and members from preventing or attempting to prevent, by physical obstruction, violence or threat of violence, any person or persons from entering or leaving the construction site by vehicle or on foot.

      . Despite the failure to file exceptions in the trial court, this appeal is proper. Pa.R.App.P. 311(a)(4) permits an appeal to be filed as of right from an order granting or refusing an injunction. See: Agra Enterprises, Inc. v. Brunozzi, 302 Pa.Super. 166, 448 A.2d 579 (1982). See also: 42 Pa.C.S. § 5105(c).

      . Although uniformed and plain clothed police were present at the scene, they made no effort to assist N.C.I.’s empoyees to enter the construction site.


author: MONTEMURO, Judge:

text:
    450 A.2d 1
    John H. HUGHES and Anna Ruth Hughes, his wife, v. EMERALD MINES CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1981.
    Filed April 23, 1982.
    Reargument Denied Oct. 7, 1982.
    Petition for Allowance of Appeal Denied Jan. 21, 1983.

      Harry J. Cancelmi, Jr., Waynesburg, for appellant.
    Eric J. Held, Washington, for appellees.
    Before PRICE, JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Judge:

The instant action concerns the complaint of landowners that a coal company operating on adjacent property caused the failure of one water-well and the pollution of a second well located on plaintiff-appellees’ own land.

A jury found for the plaintiffs in the amount of $32,500, basing their measure of damages on the testimony of a local real estate dealer that the property had been worth $42,500 while served by two wells of pure water and that without a source of potable water the salvage value of the land together with a mobile home located thereon would be $10,000.

Defendant-appellant mining company appealed on the following grounds: (1) that there was insufficient evidence of causation for the jury to find the loss of water to be due to its activities in its mining operation; (2) that, even assuming causation, the loss was damnum absque injuria, or damage without legal wrong or legal liability; (3) that error was committed when the trial judge instructed the jury to disregard a “mining rights” clause in the landowner’s deed to the property; and (4) that the verdict of the jury in awarding damages in the amount of $32,500 was excessive.

We affirm the lower court’s decision on the first three issues, but we reverse the award of $32,500 as excessive, and we remand for more realistic appraisal of actual and consequential damages in view of the testimony of plaintiffs’ own witnesses that repair of the wells can be effected at lower cost.

HISTORY OF THE CASE

The plaintiffs bought this property by a deed dated 1953, pursuant to a mining rights clause set forth in an earlier deed conveying to a predecessor in title in 1921. Thereafter they erected a dwelling and drilled a well to supply water. There was a continuous, ample, potable water supply from this well (hereinafter well # 1) for some twenty-five years until late May or early June of 1978.

In 1977 the plaintiffs purchased a mobile home and installed it on the property for their son’s use. At that time a second well (hereinafter well # 2), was drilled, and from its installation until the same period in late May or early June of 1978 the supply was plentiful and potable.

The defendant company owns mining rights under the entire property originally designated the “Adamson Tract.” Plaintiffs own the surface rights to a small section of this tract. Defendant owns surface rights in addition to subsurface rights to a portion of the tract contiguous to plaintiffs’ property.

In 1975 defendant began to expand its operations into that contiguous portion of the tract. Several airshaft holes were prepared in the same general area. The airshaft which is the focus of this action is located 540 and 600 feet from defendant’s two wells, and is known as “grout hole # 4.” It was begun on May 9, 1978 and was completed May 29, 1978.

On May 31, 1978, well # 1 went dry. Two or three days later, well # 2 became polluted. During this same period of time, neighboring properties also experienced similar problems with their wells.

On June 8, 1978 plaintiffs notified an agent of defendant of their problems. Since early June of 1978 the plaintiffs have had a tank installed at their residence and their son-in-law hauls water from his own home to theirs in 55 gallon lots daily. The plaintiffs travel two miles to the home of their son-in-law and daughter to shower, and must now take their laundry to the laundramat twice weekly instead of using the washer in their basement. Water at well # 2 can be used to flush the commode in the trailer, but cannot be used for cooking, cleaning, bathing, or drinking. The court below permitted these damages to be explored, stating that “they have the right to use their land and if the liability deprived them the use of their property, it is their damage.” (N.T. 108). Cost of hauling water, attempted well repair, and laundry amounted to some $7,000 worth of out-of-pocket expenses in consequence of the well failures.

Real estate experts testified for plaintiffs and for defendant. Plaintiffs’ witnesses estimated loss of value in the land without any source of usable water to be $32,000. Defendant’s witness estimated loss to be no more than $12,500, assuming no usable water. Defendant also presented a mining engineer, Mr. Mishra, who opined that deeper drilling was “reasonably certain” to find water, and later estimated the degree of certainty as “98(N.T. 226)

Because the lower court expressed surprise at the measure of damages, and because, upon review of the record, we find that testimony of plaintiffs’ own witnesses amply supports a finding that repair or replacement of these wells may be had at cost far less than the award of $32,500, we set forth samples from the notes of testimony at some length below.

Plaintiffs’ own expert witness, Mr. Moore, who had been in the well-repair business in this area since 1948 and who had actual knowledge as to plaintiffs’ wells and those of the near neighbors, testified as follows:

Q. Would you tell us, Mr. Moore, what you have found in other houses right next door to this one and on down the road in that area?
A. Right next door, Mr. Braddock restored a pump, he put a new pump in, but about a thousand yards or so, which is Mrs. Sissler’s property, which is down this side . . . that pump was also covered up and we pulled it and sold her a new pump plus complete water purification .. .
Q. Was there any others that you had complaints about?
A. Yes. Mr. Staggers which is on the same side of the road as the shaft, which is about three hundred feet or so from the shaft, called me about his well and I told him what it would cost him, probably around a thousand dollars.
Q. Now, these places that you have mentioned here, was the problem there the same type of problem that Mr. Hughes had?
A. Identically the same. I would say identically the same. I would just be giving my opinion. (N.T. 27-28)
Q. If that was a well with water in it that looked something like, let’s use [attorney for plaintiffs’] jar. I assume he is going to use that as Exhibit “A”. Is there a possibility for purification to correct the conditions so it would be more suitable for domestic use?
A. Definitely. You can make the water very clear. . . . Q. Well, just describe generally.
A. O.K. If the water is acidy, then you put an acid neutralizer on it. Then, if you have an iron condition, then you put an iron filter on it. If you do have any bacteria, then you put a clorenator [sic] on it. Then if the water is real hard, then you put a softener on it. Now you are talking around two thousand dollars for this installation. (N.T. 45)

This discussion was followed by explanation of the costs of maintenence of the systems once installed, which witness conceded were modest.

Plaintiffs’ real estate Expert Witness stated that, if the wells were replaced, “then it [the property] still has the same type of value I would put on it to start with.” (R. N.T. 57)

Plaintiffs’ Expert Witness, the man who in fact drilled both wells, gave the following evidence:

Q. Now, did you also go over to Mrs. White’s well, who lives right next door to the Hughes property?
A. Yes.
Q. What did you find there?
A. It is similar to John’s well. The same circumstances.
Q. What did you have to do to her well?
A. We had to pull the pump and cut off some pipes and shorten it and put it back in.
Q. She had the same problems as Mr. Hughes did?
A. Yes. (N.T. 79-80)

Mr. Hughes, the plaintiff, himself estimated the cost of one well at about $1200, and defendant’s expert local real estate witness estimated costs of new wells in the vicinity at $1200 to $1500, which testimony was never contradicted. (N.Y. 117-118)

THE LAW

This action was tried on the basis of non-trespassory invasion of another’s land as set forth in Restatement of Torts, 2d at § 822, and as adopted by the Supreme Court of Pennsylvania in the 1954 case of Waschak v. Moffat, 379 Pa. 441, 109 A.2d 310, 54 A.L.R.2d 748 (1954). That section provides as follows:

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either:
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

The instant action was tried on the first of the two theories outlined above: that the act of the coal company was intentional and unreasonable. The Restatement at § 825 further defines intentional invasion as follows:

An invasion of another’s interest in the use and enjoyment of land or an interference with the public right is intentional if the actor
(a) acts for the purpose of causing it, or
(b) knows that it is resulting or is substantially certain to result from his conduct.

An intentional invasion becomes unreasonable, according to § 826 if:

(a) the gravity of the harm outweighs the utility of the actor’s conduct, or
(b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.

Section 829(a) contributes this analysis of “unreasonableness” :

An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation. Comments following the section immediately supra supply

further explanation in pertinent part:

. . . certain types of harm may be so severe as to require a holding of unreasonableness as a matter of law, regardless of the utility of the conduct. This is particularly true if the harm resulting from the invasion is physical in character. .. . Aside from the normal requirement that the harm be significant ..., it is apparent that the more serious the harm is found to be, the more likely it is that the trier of fact will hold that the invasion is unreasonable.

DISCUSSION

There is no doubt that plaintiffs have suffered a significant harm to use and enjoyment of their property which occurred on or about May 31, 1978. Defendant contends, however, that evidence was insufficient to prove that its activities were the legal cause of the damage sustained.

Defendant’s objections, however, are not borne out on the Record. We will not examine each allegation in depth, but will illustrate the viewpoint of this court by examination of several contentions.

Defendant objected to use of some of plaintiffs’ witnesses as experts; Mr. Moore, however, had been in the plumbing and well-repair business in this area since 1948, and had actual knowledge of both wells at issue, as well as those on neighboring properties. He had also participated in construction of airshafts for mines. He was able to state positively that grouting pumped into drill holes in an air-shaft could travel to plaintiffs’ property and damage its wells. He had seen it happen before. He had also seen pollutants travel five miles through percolation without any pressure pumping at all. Mr. Moore was thus qualified to speak on issues important to the case, and we see no objection to his admission as an expert, a decision very much within the trial judge’s discretion.

Defendant also claims that hypotheticals were not substantiated because of misuse of the term “fracking” and because witnesses varied the pressure used in the process from 200 pounds to 2,000 pounds. Examination of the Record, however, shows that where a hypothetical was stated, it merely discussed forcing a substance under pressure into the airshaft. Neither the precise term of “fracking” nor the poundage was mentioned at that stage of the testimony. In general, all witnesses agreed as to the process used, though one of defendant’s witnesses preferred to characterize it as a “partial sealing” of the shaft and not as “fracking.”

Similarly, defendant’s claim that migration of grout “from actual inspection underground” did not exceed 25 feet (R. Brief of Appellant, p. 13) is vastly over-stated. The witness merely said the following:

We have gotten into a shaft that clearly shows that at a 650 feet depth or 640 foot depth this has migrated only 20 feet from the edge of the shaft. (N.T. 246a)

What was done to establish this fact is unclear, but “actual inspection underground” is a claim of the Brief, not the witness. Further, inspection of “a” shaft may have some marginal relevance but is a far cry from defendant’s claim of proof that inspection of grout hole # 4 provided the information. Also, as the wells in question were only 90 feet or so in depth, the importance of a figure on migration of grout at 650 feet is questionable.

Without examining every contention of defendant in this opinion, we can state that its objections to the witnesses and to the sufficiency of the evidence to support jury findings of liability on their part are not convincing. Both parties were permitted to present evidence in support of their contentions, and if the jury found the facts as presented by plaintiff to be true, we see no need to overrule the finder of fact.

Admittedly, the ground was not laid bare in an effort to trace the flow of grout at a depth of some ninety feet over an area of 600 feet of intervening ground. Such a requirement would be overwhelming financially, and physically disruptive to the neighborhood. There was plenty of evidence, however, from which a reasonable jury could deduce causation: the former twenty-five years of uninterrupted water supply; the physical proximity of the grouting operation to the ruined water wells; the timing of defendant’s completion of its operations shortly before the resulting failure of the wells; the grout-like substance observed by witnesses in the muck removed from the well-bottoms; the similar damages sustained by other well owners in the near vicinity at the same time.

The plaintiffs’ burden here is one of “a fair preponderance of the evidence.” See e.g. Johns v. Township of Shaler, 240 Pa.Super. 129, 368 A.2d 339 (1976). Our business as a trial court upon review is:

... limited, in general, to determining whether there is evidence to support the verdict, especially where the trial court has refused to set it aside. 9 Standard Pennsylvania Practice, p. 433 and cases cited therein. (1962)

We determine that there was evidence to support a finding of causation in this matter, and this court will not reverse the finder of fact below, especially as the trial court did not.

The defendant’s view that the injury, even if caused by its acts, is without remedy, presents a more difficult task of analysis. As noted above, analysis is proper under § 822 of the Restatement of Torts, 2d.

This action was brought under subsection (a) of 822, the theory that the invasion of plaintiffs’ rights was intentional and unreasonable, and the jury necessarily found these elements in order to hold for the plaintiffs in the matter.

Since the verdict was in the plaintiffs’ favor, the testimony must be considered in the light most favorable to them, and all reasonable inferences must be drawn in their favor. See e.g. Reinhart v. Lancaster Area Refuse Authority, 201 Pa. Super. 614, 193 A.2d 670 (1963). We must therefore review both the findings of “intent” and “unreasonableness” in a light most favorable to plaintiffs.

As to “intent”, plaintiffs clearly are not contending that the activities of defendant amount to a deliberate plot to ruin their wells. They contend, however, and the jury obviously agreed, that defendant’s acts came under the language of § 825(b) as set forth supra, and that defendant knew that the grouting injected was substantially certain to injure nearby wells, but nevertheless dug the airshaft and pumped in the grout.

In reviewing the record, we do find evidence to support that view: there is agreement that the process itself was specifically for the purpose of sealing off water flow; testimony showed that these two wells were not alone in showing effects from this particular airshaft grouting operation; a witness familiar with both the drilling of wells and the creation of airshafts stated flatly that he had seen this result before as a byproduct of the sealing process. A jury of reasonable persons could deduce that defendant company knew their grouting process would seal off water, that the grout had traveled and destroyed wells in the past, and that in this instance the danger of that happening was indeed so substantial that, in effect, almost all neighboring wells were effected to some degree. Upon review we must agree that the testimony can support intent under the “substantial certainty” rule of § 825(b).

As to the finding that the invasion of plaintiffs’ right to their enjoyment of their well-water was “unreasonable”, we again turn to the wording of the Restatement of Torts 2d at § 829(a), as set forth supra, and the comment following it.

No one is contending that the mining of coal is not a useful activity, and airshafts are a necessary part of that activity as safeguards to the health of miners. “Unreasonable”, however, is a term of art, a legal definition rather than a moral judgment on the good sense of a party. Utility of an act must be balanced against the bad effects resulting from that act in determining its reasonableness.

The harm to plaintiffs in the loss of both their wells was undeniably “severe,” and we are inclined to agree with the finder of fact that the loss is “greater than they should be required to bear without compensation,” “regardless of the utility of the conduct.” See § 829(a) and comment following, supra.

Case law further recognizes this principle, and has done so from an early date:

. .. the defendant’s right to injure another’s land at all, to any extent, is an exception, and the burden is always upon him to bring himself within it.
Where conflict is irreconcilable, the right to use one’s own must prevail, but it can do so without compensation where the resulting damage is not avoidable at all, or only at such expense as would be practically prohibitory. Pfeiffer v. Brown, 165 Pa. 267, 274-275, 30 A. 844, 846-46 (1895) (emphasis supplied); accord, Collins v. Chartiers Val Gas Co., 131 Pa 143, 18 A. 1012, 6 LRA 280 (1890).

Defendant made no effort on the record to show that the damage inflicted was “not avoidable at all” or that it was avoidable “only at such expense as would be practically prohibitory.” In fact, the whole thrust of its arguments was that its operations had not harmed plaintiffs’ property, and that the legitimacy of its lawful use of its own property was unquestioned.

No testimony was offered to show that this location was the only possible place for an effective airshaft; no discussion of a lack of less destructive methods of waterflow prevention was placed on record; no claim of prohibitive expense in use of other methods or other locations was made.

In short, defendant made no attempt to fulfill its burden to prove that its acts were not avoidable at all or only avoidable at prohibitory expense. Once the plaintiff had met its burden of proof of causation by a preponderance of the evidence, Section 829A and case law agree that the burden shifts to the actor to defend its conduct as “reasonable.” Defendant here did not meet its burden, and we affirm the jury’s finding of intentional and unreasonable damage to plaintiffs, for which compensation is due.

Defendant’s final allegation of error is that the trial judge wrongly instructed the jury that the mining rights clause in the plaintiffs’ deed as incorporated from the deed of its predecessors in title had “nothing to do with the issue in this case.” The reasoning of the trial judge in reaching this result does not coincide with our own, but we conclude that his decision to remove the deed from consideration was correct nevertheless, for the following reason:

The wording of the original deed dated 1921 is clearly based upon the supposition that the mining rights clause would come into effect at time of actual use of plaintiffs’ property for coal-mining purposes:

All the coal . . . within and underlying all that certain tract of land . . .
TOGETHER with the free and uninterrupted right to mine and remove any and all of said coal without being required to leave support for the overlying strataor surface . .. and without being liable for damage for any injury to the said overlying land, or to the springs or water courses therein or thereon ... (R. “Indenture” dated 1921, 186a)

This wording protects the mining company from liability to the owner of the surface rights of the property during mining of coal rights under the property. It was never designed to fit the facts of this case, which as we have seen was tried on a theory of non-trespassory invasion of another’s land from an adjoining property. The drafters of the document in 1921 doubtless envisioned that damage caused on the mining company’s own lands could always be proved to be “reasonable” in view of the provable “utility” of coal production. Their sole concern was to protect the company from liability when direct damage was suffered by surface owners of the area under which they mined.

Our legislature, however, as mentioned by the lower court, has enacted the Bituminous Mine Subsidence and Land Conservation Act, 52 P.S. 1406.1 ff. Its wording clearly makes unlawful a great deal of the contractual language included in the 1921 Indenture which would otherwise free the mining company from liability for subsidence of land and injury to buildings thereon.

Additionally, § 1406.19 states that the act is remedial and is not to receive a strict or limited construction; § 1406.2 states that preservation of water supplies are a purpose of the act; and § 1406.4 forbids mine operations in a manner that will cause damage to dwellings. The balance of the unquestioned utility of coal mining and the reasonableness of the destruction it entails has undergone a change since 1921, and defendants will be held to liability where damage is “severe and greater than the other should be required to bear without compensation.”

One last problem remains to be discussed. The lower court correctly stated the measure of damages in the charge to the jury:

The measure of damages ... is the cost of the remedy unless it exceeds the value of the property, in which case the value of the property is the measure of damages. Where the damage is permanent, the measure of damages is the difference between the value of the land before the loss or damage, and the value of it afterwards.
(R. N.T. 237)

The lower court’s opinion, reflecting upon the jury decision, also came to a conclusion on the verdict rendered:

What the jury did, we must infer, was to find the damage permanent and the cost of restoration greater than the difference in value, and accepted the before and after values submitted in the testimony of Mr. Arnold. [Plaintiffs’ real estate agent witness.]

We absolutely agree with the lower court’s inference as to the workings of the jury’s mind on that decision. Unlike the lower court, we cannot find foundation in the testimony to support such a conjunction of facts. True, Mr. Arnold opined that the lost value would be to the amount of $32,500 if there were no water on the property.

As far as we can determine, not a single witness for either party ever stated that restoration of the wells to working order was impossible or even unlikely. The testimony of plaintiffs’ own witnesses guaranteed a good supply of water at well # 2 for $1,000 to $2,000, plus modest maintenence costs. Neighbors had also shortened and/or deepened wells to reestablish supplies of water, at, presumably, the local estimated costs of $1,200 to $1,500; therefore, an assumption that plaintiffs would not be able to restore or replace well # 1 has only slightly more credible testimony to support it than the assumption that well # 2 could not be made potable. As to the necessary assumption that the entire property would remain without water and that damages should be based on a salvage value, we find that assumption incredible. The evidence simply does not support the verdiet. The jury’s findings on that measure of damages should not have been permitted to stand.

CONCLUSION

We therefore affirm the holding of the court below insofar as it held the defendants liable for damage sustained by these plaintiffs to their wells; however, as the evidence does not support a finding of total, permanent loss of water, the award of $32,500 is excessive. The correct measure of damages is remedial, and the case is remanded solely for determination of a reasonable sum for consequential damages and costs of restoration.

Affirmed as to liability, reversed and remanded as to damages. We do not retain jurisdiction.

PRICE, J., notes dissent.


author: POPOVICH, Judge:

text:
    450 A.2d 9
    COMMONWEALTH of Pennsylvania v. Frank TURNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1981.
    Filed July 23, 1982.

      Douglas M. Johnson, Assistant Public Defender, Norris-town, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence imposed after a jury trial where appellant, Frank Turner, was found guilty of burglary , theft by unlawful taking or disposition, receiving stolen property, criminal conspiracy, and resisting arrest. Post-verdict motions were denied, and appellant was sentenced on the burglary conviction to a term of imprisonment of not less than one and one half years nor more than three years. The court suspended sentence on the remaining convictions.

In this appeal, appellant raises four issues. They are: (1) whether the court erred when it allowed testimony concerning a crime for which appellant was not standing trial; (2) whether the court erred when it denied appellant’s motion for a mistrial because of the improper remarks made by the prosecutor in closing argument; (3) whether the court erred when it denied appellant’s motion to suppress certain identification testimony; and (4) whether the evidence was sufficient to prove his guilt beyond a reasonable doubt. We have reviewed appellant’s contentions and conclude that they are without merit.

The basic facts are undisputed. At approximately 6:30 a.m., on August 21, 1979, a burglar alarm from Wanamaker Department Store alerted the Abington Township Police. A police officer responded within a minute to the scene and observed a late model Cadillac driving away from the store. The officer pursued the vehicle in a high speed chase, since there were no other vehicles in the area at that time, and the officer was able to see three individuals in the car. As the driver of the suspect car passed directly along the side of the police officer’s vehicle, the officer saw the appellant, the driver, who was only ten feet from the police car. From this view, the police was able to formulate a description of the driver, a small individual, approximately 5 feet, 8 inches tall, a black male, with a “hawk-like nose”. With the assistance of another police officer, the officers attempted to capture the vehicle. The police activated their sirens until the car crashed. One suspect was apprehended at the scene. However, appellant and a female companion abandoned the car and fled.

Meanwhile, a third officer who had also been dispatched entered the John Wanamaker building. He found that the doors had pry marks on them and were heavily damaged. A crowbar was observed lying on the floor in the area of an empty rack of designer’s men’s suits. One rack of suits was observed to be empty. The interior of the Cadillac was found to contain designer’s men’s suits with the “John Wanamaker” tags still affixed to them. A police check on the vehicle identification number of the Cadillac disclosed that the vehicle was owned by Robert Spaddy, who testified at the trial that he reported that his car was missing as of August 15, 1979. Mr. Spaddy identified the Cadillac involved in the high speed chase as belonging to him.

Mr. Spaddy also identified his Pennsylvania Registration License, 0L9476. This license plate was found inside the Cadillac and underneath a pile of Wanamaker suits. The license plate which was found on the car at the time of the chase was Pennsylvania registration 97685U. That license plate was registered to appellant and was issued to a Buick. Records from Harrisburg also established that the above automobile, the Buick with the license plate affixed to the Cadillac and belonging to Frank Turner, had been reported stolen on August 26, 1979.

On August 24, 1979, appellant surrendered himself to the police upon learning that an arrest warrant had been issued for him the previous day. Upon being arrested appellant was questioned and admitted that he knew the female suspect who was alleged to have been in the Cadillac.

During the trial, the prosecution called Robert Spaddy to the witness stand. The defense counsel requested an offer of proof on Spaddy’s testimony. An in-chambers conference followed because Spaddy’s testimony would establish independently that the vehicle appellant was driving at the time of the crime was stolen. Defense counsel contended that such a reference was an impermissible reference to criminal activity because two charges against appellant, theft by receiving stolen property and unauthorized operation of a motor vehicle, were dismissed since the prosecuting witness failed to appear at the scheduled preliminary hearing. At the end of the conference, the court concluded that the owner of the stolen vehicle could testify.

To begin with, the prosecution argues that appellant has waived the issue of whether the trial court improperly admitted into evidence testimony concerning a stolen vehicle which was used to commit the crime. According to the prosecution, defense counsel conceded that the testimony was relevant to show motive and intent. However, even though the following portion of the record establishes that counsel so conceded the issue, the record also shows that defense counsel nonetheless argued that the testimony was prejudicial and for this reason should have been excluded:

[Defense Counsel]: “I think you put your finger on it, the inference in that you say could possibly be drawn. But my fear is that a very, very great inference that can be drawn is the fact that he stole the car, and he is not on trial for stealing the car, and in fact it’s been dismissed. That’s the whole purpose of it. Either he participated in this deal, he stole it or participated, and it was stolen for the purpose for which it was used. It is to consider motive and intent. That’s what it is admissible for.
THE COURT: This is happening within a short period of time thereof, six days as a matter of fact. The Court will allow his testimony.
(The conference in chambers was concluded. The trial proceeded in the presence of the jury and the Defendant.)”
Trial Transcript at 11-12. (Emphasis added).

In view of the above, we must reject the prosecution’s theory of waiver since our reading of the record reveals that appellant’s attorney challenged the admissibility of the testimony of Robert Spaddy even though he did not utter the magic words, “I object”.

Appellant first contends “that the introduction of evidence as to the theft of the automobile was extremely prejudicial in his case and left the jury with the impression that he had stolen the car or had committed another crime. Said inference was completely unjustified and was not based upon any law.” Brief for Appellant at 13. We must reject appellant’s contention.

The testimony which appellant challenges was as follows:

“BY MR. WILLIAMSON: [The Prosecutor]
Q Mr. Spaddy, where do you reside?
A Philadelphia, Pennsylvania.
Q What is your address?
A 1611 Chesapeake Place, Philadelphia.
Q Who do you live with in Philadelphia?
A My wife and child.
Q What do you do for a living, sir?
A Postal employee.
Q Are you a letter carrier?
A Letter carrier.
Q Directing your attention to August 15, 1979, did you own a motor vehicle on that date?
A Yes, I did.
Q What kind of car did you own?
A A 1978 four door sedan Cadillac.
Q What was the color of that car?
A Beige.
Q What was the color of the roof?
A Dark brown.
Q Was the substance of the roof different than the body of the car?
A Yes.
Q In what respect?
A The body of the car was lighter than the roof.
Q What kind of top was that?
A Vinyl, full vinyl.
Q What did you do with your car on August 15, 1979? A I took it to Bernicker Cadillac for service.
Q I would just ask you to keep your voice up so the jurors can hear you, so Miss Weldon, who is farthest over here, and Mrs. Weikel can hear you.
MR. WILLIAMSON: If any jurors cannot hear a witness, please let us know. Okay? Can you all hear the witness?
(All jurors indicated assent.)
BY MR. WILLIAMSON:
Q Now, after you took it to Bernicker Cadillac on August 15, 1979, did anything unusual happen that day that you remember with respect to your Cadillac?
A Yes. About three hours later I received a call from the service manager at Bernicker Cadillac, stating that my car was not there.
Q And had you taken your car away from that service station.
A No, I did not.
Q As a result of receiving this information on August 15, 1979, what did you do? Did you communicate with anybody?
A Yes. The Lower Merion Police Department called me and told me that my car had been reported stolen from Bernicker Cadillac.
Q Now, what did you do that day with respect to receiving this information?
A I called my insurance company and reported it.
Q Did you have occasion to ever see your automobile again?
A The next time I saw it was August 21st at the Abington Police Department.
MR. WILLIAMSON: I ask that this be marked Commonwealth Exhibit 1.
(The Court Reporter marked a photo as Exhibit C-l.)
BY MR. WILLIAMSON:
Q I show you, Mr. Spaddy, what has been marked for identification as Commonwealth Exhibit C-l, and ask you if you recognize what is depicted in that photograph.
A Yes, I do.
Q What is it?
Will you tell the jury, please.
A A 1978 four door sedan Cadillac, beige in body, dark brown top.
Q Do you know whose car that is?
A This is the same car that I saw at the police station, so it is my car. It was my car.
MR. WILLIAMSON: Will you please mark these exhibits C-2 and C-3.
(The Court Reporter marked a license tag as Exhibit C-2, and an automobile registration card as C-3.)
BY MR. WILLIAMSON:
Q Mr. Spaddy, I show you what has been marked for identification as Exhibit C-2, this object right here. Do you recognize it?
A Yes. That is the license plate from my car.
Q What is the plate number?
A OL9476.
Q I also show you what has been marked for identification as Commonwealth Exhibit C-3. Do you recognize that?
A That’s my owner’s card with my signature.
Q Does the license number of the owner’s card, is that indicated on here?
A Yes.
Q Can you read it?
A OL9476.
Q And what is the description of the owner’s card, for what vehicle, can you read that?
A 1978 Cadillac sedan.
Q And is there a vehicle manufacturer’s number that appears on there?
A Yes.
Q Would you read that, if you can?
A 6D69S8E672289.
Q Thank you.
What was the condition of your vehicle when you saw it that day, in the Abington Township Police Department?
A Very demolished.
Q Did you give permission to Mr. Turner to operate your vehicle on August 15th.
A I gave permission to no one.
Q To operate your vehicle on August 15, 1979, other than the service people.
A Other than the service people, no one.
MR. WILLIAMSON: Cross-examine.”
Trial Transcript at 12-16.

Additionally, the trial court at the request of the prosecution instructed the jury on the evidence of the stolen car in the following manner:

“I also wish to mention to you as a cautionary instruction that this Defendant is not charged with having stolen any car. There was evidence which indicated that the car which was involved in the accident was stolen, and it is possible for you to draw an inference that that car was taken by some person for an improper purpose. But you have no charge before you. You have no evidence before you indicating that this Defendant stole a car.”
Trial Transcript at 199.

As a general rule, the prosecution cannot introduce testimony from which the jury reasonably could infer that the defendant has been engaged in criminal activity not charged in the indictment or information for which the defendant is being tried. See Commonwealth v. Lee, 297 Pa.Super. 216, 443 A.2d 804 (1982). The special circumstances justifying exceptions to the general rule exist when the evidence of unrelated criminal activity tends to establish the following:

“ ‘(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial—in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.’ Commonwealth v. Peterson, supra, 453 Pa. [187] at 197-198, 307 A.2d [264] 269.”
Commonwealth v. Lee, 297 Pa.Super. at 225, 443 A.2d at 808.

In this connection, a sixth exception has been included. That is, evidence of a crime independent of the crime for which the accused is being tried is admissible “where the crime was committed to conceal the commission of the crime on trial or to escape its consequences.” Commonwealth v. Terrell, 234 Pa.Super. 325, 329, 339 A.2d 112, 114 (1975). More specifically, we have recognized this principle, namely where “evidence of the theft of a car to effectuate flight and the transportation of sixteen year old girl over a state line during that flight [was] admissible at the trial of the crime from which the defendant was fleeing”. Commonwealth v. Irons, 230 Pa. Super. 56, 64, 326 A.2d 488, 492 (1974).

Likewise, in the instant case, we conclude that evidence of using a stolen vehicle in order to commit the burglary was admissible because “the crime [of stealing a vehicle] was committed to conceal the commission of the crime on trial or to escape its consequences”. Commonwealth v. Terrell, 234 Pa.Super. at 329, 339 A.2d at 114. See generally McCormick, Evidence § 190 at 451 (2d ed. 1972).

Appellant also contends that reversible error occurred when the prosecution reminded the jury that the charges of theft with respect to the automobile had been withdrawn and that they were not to consider that evidence. Appellant also asserts that the “District Attorney pointed out to the jury that appellant was the individual who stole the automobile”. Brief for Appellant at 14. However, the prosecution contends that “no argument was made to the jury that this defendant had stolen a motor vehicle.” Brief for the Prosecution at 12.

Before resolving the merits of appellant’s argument, we first must decide whether the issue has been preserved for appeal. In this case, the closing argument of the prosecution is not record. Where the challenged remark has not been recorded, we have said the following:

“[I]t is well settled that any objection must be made during the argument so that the challenged remarks may be placed in the record at or about the time they are made. Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287 (1976); Commonwealth v. Kollock, 246 Pa.Super. 16, 369 A.2d 787 (1977). The purpose of this requirement is to ensure an accurate record on appeal. Commonwealth v. Perkins, supra. ‘Otherwise, the recollection of both counsel and the court at the conclusion of the argument may differ and thereby result in unnecessary disputes.’ Commonwealth v. Adkins, surpa [468 Pa.] at 472, 364 A.2d at 291.” Commonwealth v. Leymeister, 285 Pa.Super. 539, 541, 428 A.2d 176, 178 (1981) (Emphasis added).

Of course, where there is no dispute as to the content of the remark, the issue has been preserved for appeal. Commonwealth v. Balazick, 278 Pa.Super. 17, 19, 419 A.2d 1333, 1334 (1980). However, in the instant case, defense counsel waited until the end of the prosecutor’s closing argument before objecting and moving for a mistrial and the recollection of both counsel differs as to what was said. Under these circumstances, this court is not apprised of the substance of the challenged remark. Because defense counsel has the “obligation of setting forth in context and with sufficient illumination the statements he deemed offensive and prejudicial so an appellate court could make an intelligent judgment as to the nature and possible effect of the comments”, counsel’s failure to insure such a record renders the issue waived. Commonwealth v. Leymeister, 285 Pa.Super, at 541, 428 A.2d at 178.

In any event, even if the issue is not waived, we note that the trial court stated in its opinion that “[n]ot only did the prosecuting attorney stress that no accusation of theft was made (N.T. 180), but the Court also gave explicit cautionary instructions on the limited nature of the proper uses of that testimony.” Trial Court Opinion at 7. Under these circumstances, reversible error did not occur during the closing argument.

With respect to the other issues raised, the trial court adequately addressed these issues in its opinion. Hence, there is no need to elaborate.

Judgment of sentence is affirmed.

BROSKY, J., concurs in the result.

      . 18 Pa. C.S.A. § 3502.

      . 18 Pa. C.S.A. § 3921.

      . 18 Pa. C.S.A. § 3925.

      . 18 Pa. C.S.A. § 903.

      . 18 Pa. C.S.A. § 5104.

       In McCormick, supra at 448, the commentator states that the need to prove identity alone is usually not sufficient to permit the introduction into evidence of other crimes. Instead, evidence of other crimes establishing a defendant’s identity is generally admitted when it is interrelated with one of the other exceptions specified above. The exceptions most frequently resorted to for this purpose are motive, a common scheme or plan, and an identical modus operand!. See also Commonwealth v. Patterson, 247 Pa.Super. 199, 372 A.2d 7 (1977) (Dissenting Opinion by HOFFMAN, J. in which JACOBS and SPAETH, JJ. joined), allocatur granted.

      . The court stated at the beginning of the trial that two informations which were mentioned (i.e., theft by receiving stolen property involving a car and unauthorized use of a motor vehicle) had been withdrawn. Trial Transcript at 5.


author: SPAETH, Judge:

text:
    450 A.2d 15
    COMMONWEALTH of Pennsylvania v. Charles EDWARD, a/k/a Charles Edwards, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 9, 1981.
    Filed Aug. 20, 1982.

      Margaret M. Boyce, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   SPAETH, Judge:

This appeal is from the revocation of appellant’s probation and the imposition of a sentence of imprisonment. We have concluded that the lower court properly revoked probation but that the case must be remanded for further evidence on whether appellant should be sentenced to prison or involuntarily committed to a mental institution.

This case began in September 1977, when seventy year old William Mulvenna was walking west on John F. Kennedy Boulevard in Philadelphia. Appellant walked up to Mr. Mulvenna and violently shoved him against a plate glass window, causing him to fall to the ground. As Mr. Mulvenna fell, appellant took his wallet and fled. The entire incident was witnessed by a police officer, who arrested appellant.

Appellant was tried for robbery and a jury found him guilty. Because he had a history of mental illness he was committed to Philadelphia State Hospital for a mental evaluation pending disposition of post-trial motions. In April 1978 post-trial motions were denied and appellant was recommitted for further evaluation. On July 31, 1978, appellant was sentenced to “five years probation; immediate parole granted; civil commitment to Philadelphia State Hospital for a period of up to ninety days.” Slip op. at 4.

Appellant was discharged from the hospital on October 6, 1978, and ordered to report regularly to his probation officer and to attend a community mental health facility five days a week for out-patient treatment. By February 1979 appellant was in technical violation of his probation, and in September 1979 he was arrested on charges of terroristic threats and indecent exposure. After pleading guilty to these charges, appellant was again placed on probation.

Shortly after being released on probation for the second time appellant was again in technical violation by virtue of his repeated failure to report to his probation officer and to keep him informed of changes in address. Wanted cards were prepared, but appellant was permitted to remain at large.

Appellant next came to the probation officer in February 1980 without an appointment. He was rambling and disoriented, and wore a blond wig. He masturbated in front of a secretary and was found nude in the men’s room. He was taken to an out-patient psychiatric center, from which he was released when arrangements were made for him to live at a boarding home.

On March 10, 1980, the probation department was notified that appellant had sexually assaulted a resident at the boarding home. Appellant fled the boarding home and wanted cards were prepared. On May 2,1980, appellant was arrested. After two hearings, on July 8 and October 1,1980, the lower court revoked appellant’s probation and sentenced him to one and a half to five years in prison. It is from this judgment of sentence that appellant has appealed.

Appellant argues (1) that he was incompetent to participate in the probation revocation hearing; (2) that his probation was improperly revoked because his violations were non-willful; and (3) that in light of his continuing mental illness, the lower court should have committed him to a hospital for treatment rather than sentencing him to prison.

-1-

According to the Mental Health Procedures Act of 1976, 50 P.S. 7101 et seq.,

Whenever a person who has been charged with a crime is found to be substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense, he shall be deemed incompetent to be tried, convicted or sentenced so long as such incapacity continues.
50 P.S. § 7402(a).

Here, the lower court specifically found appellant competent to participate in the probation revocation hearing:

On October 1, 1980, „when the Court finally revoked probation the defendant was not incompetent, as now alleged by the Defender Association. Dr. Camiel had testified that the defendant was no longer in need of hospitalization. The Defendant addressed the Court. He clearly understood the nature of the proceedings and the possible consequences. The mere fact that the defendant denied his illness and opposed Mr. Larrabee’s proposal for continued out-patient medical treatment did not render him incompetent so as to invalidate the revocation proceedings.
Slip op. at 12.

The decision as to appellant’s competency was within the discretion of the lower court. Commonwealth v. Knight, 276 Pa.Superior Ct. 348, 419 A.2d 492 (1980). In exercising its discretion to decide competency, however, a court must enter upon a careful and complete inquiry, and its decision should be an informed one based on the evidence. Commonwealth v. Smith, 227 Pa.Superior Ct. 355, 324 A.2d 483 (1974), citing United States v. Crosby, 149 App.D.C. 306, 462 F.2d 1201 (D.C.Cir.1972). Where the decision is not based on proper or sufficient evidence we will order the case remanded so that the court may make an informed decision. See, Commonwealth v. Marshall, 456 Pa. 313, 318 A.2d 724 (1974).

In addition to the opportunity to observe appellant, the lower court’s determination of appellant’s competency was evidently based on the evaluation of appellant by Dr. Camiel, a court-appointed psychiatrist. Unfortunately, Dr. Camiel’s report was not included in the record as transmitted to us. He did, however, testify at the probation revocation hearing.

Dr. Camiel testified that appellant was suffering from a serious mental illness but had responded well to psychotropic drugs, and with proper treatment, might be able to function independently in society. N.T. 10/1/80, 8. The doctor did not know whether, when he saw appellant, appellant was taking medication, but he said his diagnosis would have been unaffected:

Q. Would it have been important to know, Doctor, in making your evaluation, based upon the interview, whether or not at the time of the interview he was, in fact under medication?
A. No, I don’t think so, because I think that my conclusions were I didn’t feel that he was—that he needed acute hospitalization at that time. There was some strange things about him. He did need acute hospitalization, and the recommendation, I think, basically was based on the history of refusal to take medications in the past and his stated objection or refusing medication in the future, when he was released.
So, I don’t think whether or not he was on medication at that time was critical because I didn’t find him floridly psychotic.
N.T. 10/1/80, 13-14.

In the course of describing appellant’s mental condition, Dr. Camiel testified that “[his] considered medical opinion is that [appellant] rapidly cycles through periods of psychosis, craziness, interspersed with periods of relative normality.” N.T. 10/1/80, 9. He further testified that

... I think [appellant’s] history is such that while basically he is always a little bit strange, there are times when he clearly loses all contact with reality, sometimes becomes violent, sometimes is just unable to maintain himself and at those times he would require the acute hospitalization that we talked about before which I think again would be brief, because at that point he would probably accept medications for a limited period of time, be able to regain enough of control of himself to be able to be placed back in the general prison population, but I do think he will cycle through psychotic periods again and again, yes. N.T. 10/8/80, 18.

We have considerable doubt whether this sort of testimony represents evidence sufficient to support the lower court’s finding that when appellant’s probation was revoked, appellant “was not incompetent . . . [and] no longer in need of hospitalization.” Our doubt, moreover, is not dispelled but is rather strengthened by the evidence that Dr. Camiel’s diagnosis of appellant’s condition conflicted with that of another court-appointed psychiatrist, Dr. Boxer. Although Dr. Boxer’s report was also not included in the record as transmitted to us, the lower court stated the report’s conclusion in its opinion:

A report dated August 6, 1980 was prepared by Dr. Arthur D. Boxer. Dr. Boxer mistakenly evaluated the defendant’s competency to stand trial. Dr. Boxer reported that during the interview, the defendant was agitated, but in control of his behavior. He refused to discuss possible penalties if “convicted.” Dr. Boxer concluded that the defendant was in “partial remission without medication ....,” but that “. . . he is not considered able to communicate with his counsel in his own defense because of his adamant refusal to consider all possibilities of charges lodged against him.”
Slip op. at 7.

The court goes on to state that this report was considered at a hearing held on September 17, 1980, but that the court then ordered a further psychiatric examination of appellant to determine “whether it was appropriate to commit [appellant] as a probation violator.” Slip op. at 8. The court offers no explanation of its decision to reject Dr. Boxer’s findings that appellant was incompetent to stand trial. The court’s rejection of Dr. Boxer’s opinion is somewhat puzzling given appellant’s aberrant behavior during the September hearing, when appellant apparently tried to attack the judge. As the lower court recounted the incident to appellant’s counsel at the final revocation hearing on October 1, 1980:

... As a matter of fact, at the last hearing here, which occurred on September 17, in this courtroom, this Court, at great length, spoke with the defendant. His answer seemed responsive, he appeared to be cooperative, and then he went off the deep end, so to speak, and became disruptive. You weren’t here, but I recall it very well. I recall it very well.
To the point where it required two sheriffs to restrain him, when he found out he wasn’t going to be released right then and there ....
N.T. 10/1/80, 40-42.

While this attack does not by itself demonstrate appellant’s inability to participate in the revocation hearing, it does support Dr. Boxer’s evaluation of appellant.

The lower court’s finding that appellant was competent to participate in the revocation hearing is further undercut by the statement by counsel, during the first revocation hearing, on July 8, 1980:

I spent a bit of time speaking to Mr. Edwards, and what’s set forth in the psychiatric evaluation appears to me to be accurate. I don’t think that Mr. Edwards even now, a month later, a month after being in the House of Correction, and he is in the general population, I don’t believe he now fully understands what’s going on or is fully able to cooperate with me.
N.T. 7/1/80, 15.

Although this statement was made during the first hearing, appellant’s conduct during the final hearing on October 1, suggests that counsel still was unable to communicate with his client. For example, when asked about appellant’s version of events leading up to the revocation hearing, counsel replied:

THE COURT: Mr. Larrabee, does Mr. Edwards agree with the report or does he deny it?
MR. LARRABEE: Does he agree with the doctor’s report?
THE COURT: No. The hearing summary? Have you discussed it with him?
MR. LARRABEE: No, sir, I haven’t.
THE COURT: Discuss it with him, please. If he controverts those matters set. forth there, it may be necessary for the Court to call in the witnesses.
MR. LARRABEE: The report, as near as I can determine, is admitted in part and denied in part.
THE COURT: What is admitted and what’s denied?
MR. LARRABEE: Mr. Edwards admits that he reported to the office on the 19th, along with that he was given 50 cents carfare, that he was seen masturbating in the office and nude in the men’s room, but he denies the March 10th incident that is reported here as a sexual assault.
I think the denial goes to the specific term “sexual assault.”
THE COURT: What is it, if anything? What was the nature of the incident?
MR. LARRABEE: Your Honor, that’s difficult to tell, but it’s not a sexual assault. I don’t want to put words in his mouth.
THE COURT: At least he denies, it’s a sexual assault.
MR. LARRABEE: Yes, sir.
MR. CARPENTER: Does he deny the sexual part or the assault part?
MR. LARRABEE: As near as I could determine, the assault part.
N.T. 10/1/80, 30-31.

Appellant’s conduct at the conclusion of the hearing further indicated an inability to cooperate with counsel. After the lower court found that appellant had violated his probation, and had sentenced him to one and a half to five years in prison, N.T. 10/1/80, 49, appellant stated that he had a question. Id. at 50. When the court asked what he wanted explained, appellant replied, “What was the violation? What was the violation?” Id. at 51. The court replied that the violation was

failure to keep in touch with your probation officer, changing your address without notifying your probation officer; for appearing nude, at the probation office, on February 19,1980; upon exposing yourself and proceeding to masturbate in front of the secretary, in the probation office; that’s the violation that the Court has found. Id.

Appellant responded by arguing with the court, in a quite incoherent way, ending with the statement, “I feel that the Court is not only going to get an appeal but a lawsuit.” Id. at 53. The court thereupon declared a recess, after which, without appellant being present, it said to counsel:

I am hopeful that this incarceration may straighten him out, but I have my doubts, frankly, but we can’t let this fellow run loose. I don’t think I could commit him as a mental patient, with an involuntary commitment, I don’t think there is enough for that, but on the other hand I think this person is a danger, I really do.
Id.

Thus, the record reflects inconsistent at least, if not conflicting, psychiatric evidence, erratic behavior by appellant, and an expression of uncertainty by the lower court. Nevertheless, we have concluded that we should not disturb the lower court’s finding that appellant was competent to participate in the probation revocation hearing. The lower court judge is an experienced judge, who plainly considered the case conscientiously. He knew appellant from appellant’s past appearances before him, and he had the advantage, which we do not have, of seeing appellant. Moreover, as we shall later discuss, it is necessary to remand the case for resentencing, and on remand, the record may be brought up-to-date, and, we may hope, more helpful psychiatric evaluations presented.

-2-

To some extent appellants’ argument that his probation was improperly revoked because his violations were non-wilful overlaps his argument that he was incompetent to participate in the probation revocation hearing. Distinct issues are presented, however.

Whether probation may be revoked for less than wilful conduct is an open question. Commonwealth v. Del Conte, 277 Pa.Superior Ct. 296, 419 A.2d 780 (1980); Commonwealth v. Holm, 233 Pa. Superior Ct. 281, 335 A.2d 713 (1975); Commonwealth v. Rooney, 233 Pa.Superior Ct. 225, 335 A.2d 710 (1975). In those cases in which we have affirmed revocation for technical violations, we have found clear evidence of wilful conduct. See, Commonwealth v. Holm, supra; Commonwealth v. Rooney, supra. In this case, however, we have concluded that we do not have to decide the question, for appellant’s technical violations were in themselves sufficient to support a finding that probation was not serving its rehabilitative purpose.

The terms of appellant’s probation required that he report regularly to his probation officer and attend a community mental health facility five days a week for out-patient treatment. Within three months of the imposition of probation, appellant refused to continue treatment at the mental health facility, and despite occasional returns to the clinic, refused to participate in the treatment program on a regular basis. As the lower court found:

. . . the defendant totally refused to cooperate in the probation process. Though his bizarre and sometimes criminal behavior while on probation may have been the function of his mental illness for which the defendant should not be held accountable, this acute illness was precipitated by his refusal to cooperate with his probation officers and continue out-patient psychiatric treatment and take required medication.
Slip op. at 12.

During the revocation hearing, appellant made plain to the court that he did not consider himself to be in need of treatment, see, e.g., N.T. 10/1/80, 46-48, and he adamantly refused to accept medication. Accordingly, there seems little possibility that if returned to probation, he would comply with its terms. In these circumstances we do not believe that the lower court abused its discretion in revoking appellant’s probation.

-3-

We have already quoted, page 20, supra, the lower court’s reason for sentencing appellant to prison: on the one hand, the court regarded appellant as “a danger” who should not be allowed “[to] run loose;” on the other hand, the court did not believe “there is enough [evidence]” to entitle it “[to] commit him as a mental patient, with an involuntary commitment.” N.T. 10/1/80, 53. The record amply supports the lower court’s finding that appellant is a danger, and that he requires some sort of confinement. The issue remains, however, whether it supports the court’s finding that confinement should be in prison instead of a mental institution.

The Mental Health Act of 1976 provides, in part, that Whenever a person who is charged with crime, or who is undergoing sentence, is or becomes severely mentally disabled, proceedings may be instituted for examination and treatment under the civil provisions of this act in the same manner as if he were not so charged or sentenced .... 50 P.S. § 7401(a).

The civil provisions thus referred to provide, in part, that

Whenever a person is severely mentally disabled and in need of immediate treatment, he may be made subject to involuntary emergency examination and treatment. A person is severely mentally disabled when, as a result of mental illness, his capacity to exercise self-control, judgment and discretion in the conduct of his affairs and social relations or to care for his own personal needs is so lessened that he poses a clear and present danger of harm to others or to himself.
50 P.S. § 7301(a).

Some one “poses a clear and present danger” to himself when, among other things,

the person has acted in such manner as to evidence that he would be unable, without care, supervision and the continued assistance of others, to satisfy his need for nourishment, personal or medical care, shelter, or self-protection and safety, and that there is a reasonable probability that death, serious bodily injury or serious physical debilitation would ensue within 30 days unless adequate treatment were afforded under this act. . . .
50 P.S. § 7301(b)(2)(i).

It seems clear to us from the record of the probation revocation hearings that appellant does in fact pose a clear and present danger of harm to himself in that he is unable to satisfy his need for nourishment, medical care, shelter and self-protection. At the hearing held July 8, 1980, for example, appellant testified concerning the shelter that had been arranged for him by his probation officer:

THE COURT: When he got a place for you to stay at, why didn’t you stay there?
THE DEFENDANT: I don’t remember a place to stay.
THE COURT: What is that?
THE DEFENDANT: I didn’t remember a place to stay.
THE COURT: Didn’t he send you to the Salvation Army office?
THE DEFENDANT: I stayed there a few times, right. They put me out for some reason. I think I came in after 11 o’clock at night and I couldn’t get in after 11 o’clock at night. So they put me back on the streets.
THE COURT: Did you go back and talk to Mr. Hall? THE DEFENDANT: Yeah.
THE COURT: When?
THE DEFENDANT: The next time I got a chance I went back, because I was so tired and sleepy.
I was walking around in a daze, you know. I was sleeping on the subways. Fifty cent a night and I would ride the subway back and forth all night long.
THE COURT: Do you know anything about this, Mr. Ha. .?
MR. HALL: I believe what he is saying, he sleeps on subways, he has nowhere to live.
N.T. 7/8/80, 27-28.

Appellant repeated essentially the same testimony at the hearing held October 1, 1980, when he told the court:

I don’t have any place to live at, you know.
It’s just like I feel like an animal at times, from the environment. Never a roof over my head.
I’m trying to say if there is anything that’s wrong, it’s that I’m not being treated fairly, that makes me act the way I do.
N.T. 10/1/80, 45.

Appellant’s probation officer testified that, to the contrary, arrangements had been made for appellant “to be housed at the Salvation Army. He left there without leaving a forwarding address.” N.T. 7/8/80, 14. Appellant also testified that his initial offense, assaulting and robbing an elderly man, had been economically motivated:

What I’m saying is, I don’t want the Court to feel as though I need medicine, you know, for my mental health. I have never killed anybody or anything like that, and I have to take medicine because a hungry person will steal? That’s why I was robbing for, to eat, and I stole money, right, and I did time for it, and I got on probation; and then the Court says after I got out of jail for that, I got to take medicine, just like I’m sick. I was hungry, so I stole some money. Do you want me to do the same thing again?
N.T. 10/1/80, 47.

Appellant’s and his probation officer’s testimony seems to comport perfectly with the lower court’s evaluation of appellant as

a penniless and homeless young man, above average in intelligence, but mentally ill and sometimes acutely schizophrenic. When he is reasonably well, he exhibits antisocial tendancies [sic] and poses somewhat of a threat to society, but when he is psychotic, he is dangerous and should not be out on the streets.
Slip op. at 11.

The question therefore arises, Why did the court believe it did not have enough evidence to commit appellant involuntarily, and that its only alternative was to imprison him?

The answer to this question is that Dr. Camiel testified that in his opinion, appellant was not commitable. Specifically, he said:

As I indicated, Your Honor, Mr. Edwards is not mentally ill enough to require acute hospitalization, but I think he is sick enough to be transferred to a mental hospital, that that would be appropriate.
If he wishes to sign himself into a hospital voluntarily, I think that he does manifest enough symptoms of mental illness that he could benefit from treatment on a voluntary basis.
N.T. 10/1/80, 54.
(Earlier, the doctor explained that by “acute hospitalization” he meant an involuntary commitment. Id., 14.)

However, we find ourselves unable to accept Dr. Camiel’s opinion as persuasive, given his other testimony. Dr. Camiel gave no explanation of how appellant’s mental condition had changed between June, when, on his advice, appellant was involuntarily committed, and October. See footnote 2, supra. Second, although Dr. Camiel found in October that appellant could only be committed on a voluntary basis, he nevertheless recommended that appellant be placed in a “structured environment:”

.... When he refuses medication he shows a history of becoming psychotic and when he becomes psychotic, he does act out in an indiscriminate way, and I think that the pattern indicates that there is a—that he is a greater than average risk of repeating such behavior, if he is not placed in a structured environment, whereby he can be under close supervision and at which time he tends to respond favorable.
He seems to do better in a structured environment, whether it be a hospital or a prison, than he does on the outside.
Q. What would your recommendation be with respect to whether or not Mr. Edwards should be placed in a structured environment?
A. I think that at the present time, I think it’s necessary that he be placed in a structured environment, as he seems to indicate that he has no knowledge that his behavior is aberrant and really doesn’t seem to care.
N.T. 10/1/80, 10-11.

Appellant has not persuaded us that the lower court should have committed him to a hospital for treatment. But he has persuaded us that the record is insufficient to support the lower court’s decision that the appropriate “structural environment” in which he should be placed is a prison.

It is settled that in imposing sentence,
[t]he court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Commonwealth v. Wicks, 265 Pa.Superior Ct. 305, 310, 401 A.2d 1223, 1225 (1979) (collecting cases).

Here the record makes plain that the lower court considered appellant’s character (“a penniless and homeless young man, above average in intelligence, but mentally ill and sometimes acutely schizophrenic [who] . . . when . . . psychotic ... is dangerous and should not be out on the streets”) and the particular circumstances of the offense (including the circumstances of appellant’s violation of probation). What the record does not make plain is how, or why, the lower court believed that a sentence of imprisonment represented the minimum sentence consistent, not only with the offense and with protecting the public, but with appellant’s rehabilitative needs. So far as we can determine from the record, appellant is so mentally ill that he does not belong in, and cannot be helped by being in, a prison; and while we agree that he should be kept off the streets, it is not apparent why that cannot be accomplished by involuntary commitment to a mental institution.

A sentencing judge has a dual responsibility. The first responsibility is a fact-finding responsibility: the judge must be sure he has enough information. The second responsibility is an application—and—explanation responsibility: the judge must apply to the information he has gathered the guidelines specified in the Sentencing Code, 42 Pa.C.S. § 9701 et seq., and explain how the sentence he has selected is responsive to, and reflects the standards embodied in, those guidelines. If the judge fails to fulfill these responsibilities, we must vacate the sentence and remand for resentencing. Commonwealth v. Kraft, 294 Pa.Superior Ct. 599, 440 A.2d 627 (1982); Commonwealth v. Doyle, 275 Pa.Superior Ct. 373, 418 A.2d 1336 (1979); Commonwealth v. Wicks, supra. Here, we are not satisfied that either responsibility has been fulfilled. As regards fact-finding, the psychiatric testimony seems to us inadequate and confusing; and as regards application—and—explanation, we are unable to determine why appellant was imprisoned rather than involuntarily committed. We are confident, given the lower court’s obvious concern, that on remand, with the help of further testimony, including a fresh look at appellant’s condition, these issues will be resolved.

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

      . Appellant also argues that his trial counsel was ineffective for failing to request a competency hearing prior to trial. This issue may not be raised on appeal from revocation of probation. Appellant has made other arguments, which we might hold waived because appellant failed to include them in his statement of issues complained of as required by Pa.R.A.P. 1925, but which we shall nevertheless dispose of. Appellant argues that his probation revocation hearing counsel was ineffective for failing to request a competency hearing prior to the revocation hearing. Since the lower court had already ordered psychiatric evaluations, and had concluded on the basis of these that appellant was competent to participate in the hearing, requesting a competency hearing would have been an exercise in futility that counsel was not ineffective for failing to indulge in. See, Commonwealth v. O’Brien, 273 Pa.Superior Ct. 198, 417 A.2d 236 (1979) (Trial court that had psychiatric evaluation stating that defendant was competent to stand trial had sufficient evidence to disregard defendant’s assertions to the contrary).
      Appellant also argues that hearing counsel was ineffective for failing to object to hearsay testimony. Although hearsay testimony concerning an alleged sexual assault was admitted, the lower court specifically noted that it did not consider this testimony in making its decision. The admission of this testimony was therefore at most harmless error.
      Finally, appellant argues that he was denied his right to a speedy probation revocation hearing when this hearing was delayed five months after his arrest. However, the delay was caused by appellant’s repeated psychiatric evaluations and therefore was not unreasonable. See, Commonwealth v. Long, 264 Pa.Superior Ct. 465, 400 A.2d 179 (1979); Commonwealth v. Williams, 254 Pa.Superior Ct. 202, 385 A.2d 979 (1978).

      . This omission is somewhat frustrating because just 4 months prior to the probation revocation hearing, Dr. Camiel had found appellant so disturbed as to be civilly commitable under §§ 304 and 405 of the Mental Health Procedures Act of 1976, 50 PS §§ 7304 and 7405. N.T. 7/8/80, 23.

      . There appears some tension between appellant’s brief, which argues that appellant is “insane” and that the lower court was therefore required “to provide treatment,” Brief for Appellant at 43, and appellant’s testimony at the probation revocation hearing, where, as indicated by the portions we have quoted, page 22, supra, appellant took the position that he had been treated unfairly and did not need medicine.