author: POPOVICH, Judge.

text:
    633 A.2d 628
    Kenneth Bradley KROEN, Appellant, v. BEDWAY SECURITY AGENCY, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1993.
    Filed Nov. 3, 1993.

      Peter H. Thomson, Sewickley, for appellant.
    David J. Singley, Pittsburgh, for appellee.
    Before KELLY, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge.

This is an appeal from the order of the Court of Common Pleas of Allegheny County which granted summary judgment • in favor of appellee. Instantly, appellant contends that the lower court erred in ruling that he is collaterally estopped from litigating the issue of whether appellee discharged him from his employment because of his refusal to submit to a polygraph examination. Further, appellant contends the court erred in determining that he was not constructively discharged from his job by his employer’s actions. Finally, appellant submits that the public policy of Pennsylvania prohibits the firing.of an employee for his refusal to take a polygraph test and, thus, his wrongful discharge action is viable. We agree with appellant and reverse the lower court’s entry of summary judgment and remand for trial.

The record indicates that appellant was employed by appellee as a security officer. Following his initial assignment, appellant was promoted to lieutenant and was assigned to a building located at 441 Smithfield Street in Pittsburgh. Appellant was the on-site supervisor of all shifts in the budding. After appellant was assigned to the Smithfield Street building, equipment thefts were reported at that location, and the thefts continued for several months. In March of 1989, appellee asked appellant and other of its employees to submit to polygraph examinations which were part of appellee’s investigation into the thefts. Appellant refused to take the polygraph examination.

Shortly after appellant declined to submit to the polygraph, appellant was transferred from the Smithfield Street site to the Airport Holiday Inn. Appellant was also demoted from lieutenant to guard, his hours of employment per week were reduced from forty to sixteen and his rate of pay was reduced from $5.50 to $4.00 per hour. Although appellant initially indicated that he accepted the change in his employment conditions, he resigned prior to reporting to his new job site.

Subsequent to his resignation, appellant filed a private criminal complaint against appellee and Wayne L. Babish, appellee’s executive vice-president, alleging a violation of Pennsylvania’s Polygraph Act, 18 Pa.C.S.A. § 7321. The district attorney declined to prosecute the private complaint due to insufficient evidence to prove that appellant was required to submit to the polygraph. Appellant’s counsel then petitioned the court for approval of the private criminal complaint pursuant to Pa.R.Crim.P. 133. The trial court approved the private complaint for prosecution and directed the district attorney to proceed. However, before any further action could be taken, appellee and Wayne Babish petitioned the lower court for writs of habeas corpus on the theory that, because appellant had voluntarily resigned, the Polygraph Act had not been violated. After a hearing, the court determined that the Commonwealth could not make out a prima facie case against appellee or Mr. Babish since appellant resigned, and the court granted writs of habeas corpus. No appeal was taken by the Commonwealth from the writs.

Appellant then filed this civil suit for wrongful discharge. Subsequently, the lower court granted summary judgment in favor of appellee. The court ruled that appellant was collaterally estopped from relitigating the issue of whether he was fired for refusing to take the polygraph test since that same issue had previously been resolved in appellee’s favor when the criminal court granted appellee’s petition for a writ of habeas corpus.

Recently, in Grant v. GAF Corp., 415 Pa.Super. 137, 147-149, 608 A.2d 1047, 1053-1054 (1992), we reviewed the standards to be applied when the doctrine of collateral estoppel is applied and summary judgment is entered. Therein, we stated:

When reviewing the grant of summary judgment, this court will reverse only if there has been an error of law or an abuse of discretion. Jones v. Keystone Ins. Co., 364 Pa.Super. 318, 528 A.2d 177 (1987), alloc. denied, 518 Pa. 613, 540 A.2d 535 (1988). Where the pleadings, depositions, answers to interrogatories and admissions filed show no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Hedlund Manuf. Co. v. Weiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357 (1988).
Collateral estoppel is appropriate where: (1) the issue decided in the prior action was identical with the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity to a party to the prior adjudication; and (4) the party against whom the plea is asserted has had a full and fair opportunity to litigate the issue in question in a prior action. Safeguard Mutual Ins. Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975); Sanders v. Sanders, 384 Pa.Super. 311, 558 A.2d 556 (1989). Summary judgment is properly granted on grounds of res judicata and/or collateral estoppel if there is no genuine issue of material fact and the pleadings, depositions, answer to interrogatories, admissions on file and supporting affidavits disclose that the moving party is entitled to judgment as a matter of law. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 464 A.2d 1313 (1983).

First, we must determine whether the lower court’s application of collateral estoppel was appropriate in this action. We are convinced that the issue presented in the criminal action against appellee is identical to that presented herein. In both cases, the central question is whether appellee discharged appellant due to his refusal to submit to a lie detector test. Thus, the first requirement for collateral estoppel is met by the facts of this case. Grant, supra. Although we are certain the issue is identical, we are not convinced that, in the context of the prior action, there was a “final judgment” on the merits, that appellant was in privity with the Commonwealth and that appellant had a “full and fair opportunity to litigate the issue”.

We agree with the lower court that the granting of appellee’s writ of habeas corpus in the prior criminal action was an appealable order. Commonwealth v. Hetherington, 460 Pa. 17, 23, 331 A.2d 205, 209 (1975). However, we disagree with the lower court’s conclusion that appellant could have appealed the criminal court’s grant of the writs of habeas corpus, and his failure to do so rendered the criminal court’s determination final. The lower court erroneously cites Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989) in support of its conclusion. In Benz, supra, a plurality of our Supreme Court held that the Superior Court had jurisdiction to hear an appeal from the decision of the court of common pleas to disapprove a private criminal complaint after the district attorney also disapproved the complaint based on his determination that there was insufficient evidence to establish a prima facie case. Although the Benz court did not specifically address the issue of whether the private affiant has standing to challenge on appeal a common pleas court’s decision to disapprove a private criminal complaint, it did permit a private affiant to appeal. We also note that private affiants have been expressly permitted to appeal the trial court’s decision to disapprove a private criminal complaint under Pa.R.Crim.P. 133. See, Commonwealth v. Muroski, 352 Pa.Super. 15, 506 A.2d 1312 (1986) (en banc); In re Wood, 333 Pa.Super. 597, 482 A.2d 1033 (1984); Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980).

While we certainly acknowledge that an affiant has standing to appeal the decision of the court of common pleas to disapprove his private criminal complaint, the aforecited cases, including Benz, supra, are inapposite presently. Herein, there exists a significant procedural difference. The prior criminal action resulted in the common pleas court’s approval of the private criminal complaint after which only the Commonwealth, not the private affiant, controlled the prosecution of the case. Upon petition by appellee, the criminal court granted a writ of habeas corpus from which only the Commonwealth had standing to appeal. The case of Common wealth v. Malloy, 304 Pa.Super. 297, 450 A.2d 689 (1982) is directly on point and so holds. See also, Muroski, 506 A.2d at 1314 (distinguishing Malloy); In re Wood, 482 A.2d at 1035 (distinguishing Malloy). Thus, it is clear that appellant did not have standing to appeal the grant of the writs of habeas corpus in the prior criminal action.

Therefore, we find that application of the doctrine of collateral estoppel was not appropriate in this case. First, there was not a “final judgment” on the merits since the Commonwealth could refile the charges if additional evidence became available. Hetherington, supra; Genovese, supra. Second, after the court of common pleas approved the private criminal complaint, the district attorney took exclusive control of the prosecution, and appellant was no more in privity with the district attorney than any other citizen of the Commonwealth. Cf., Malloy, supra, citing Hutchinson v. Bank of Wheeling, 41 Pa. 42, 45 (1861) and Commonwealth v. Walker, 468 Pa. 323, 331, 362 A.2d 227, 231 (1976). And finally, appellant did not have a full and fair opportunity to litigate the issue. Appellant had no control over the prosecution once the court of common pleas approved the criminal complaint. Further, since appellant had no standing to appeal the grant of the writs, the Commonwealth’s decision not to appeal from the writs does not finally resolve against appellant the issue of whether appellee fired appellant for refusing to submit to the polygraph. Collateral estoppel is simply inapplicable in the present case.

However, our inquiry does not end here. We must also decide whether, as a matter of law, appellant may maintain an action for wrongful discharge. As a general rule, there is no common law cause of action against an employer for termination of an at-will employment relationship. Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990); Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 88, 559 A.2d 917, 918 (1989); Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). An exception to this rule has been recognized in the most limited of circumstances, where the discharge of an at-will employee would threaten clear mandates of public policy. Clay, 559 A.2d at 918; Rutherfoord v. Presbyterian-University Hospital, 417 Pa.Super. 316, 612 A.2d 500 (1992). See, e.g., Reuther v. Fowler & Williams, 255 Pa.Super. 28, 386 A.2d 119 (1978) (employee cannot be discharged for serving on a jury); Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980) (pardoned convict improperly refused employment because of criminal record); Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989) (employee improperly discharged for making a report required by Federal Nuclear Regulatory Commission).

Thus, we must decide whether an employer’s discharge of an at-will employee due to the employee’s refusal to submit to a polygraph examination impinges upon a clear mandate of public policy. Addressing the identical question, the Court of Appeals for the Third Circuit held: “We are satisfied that Pennsylvania’s anti-polygraph statute embodies a ‘recognized facet of public policy’ of th'e type proscribed by the Pennsylva-. nia courts in Geary and Reuther. Thus, if [the plaintiffs] discharge resulted from a refusal to submit to a polygraph examination, a cause of action exists under Pennsylvania law for tortious discharge.” Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363, 1366 (3rd Cir.1969). We agree with the Court of Appeals. The General Assembly of Pennsylvania has seen fit to proscribe the use of lie detector tests in employment situations and has made such action a misdemeanor of the second degree. 18 Pa.C.S.A. § 7321. The purpose of the statute was ably summarized in the analysis of a substantially similar statute by the Supreme Court of New Jersey:

There is no judicial control when an employer subjects his employee to a lie detector test and there is no licensing or other objective method of assuring expertise and safeguard in the administration of the test and the interpretation of its results. Nor is there any assurance of true voluntariness for the economic compulsions are generally such that the employee has no realistic choice. Organized labor groups have often expressed intense hostility to employer requirements that employees submit to polygraph test which they view as improper invasions of their deeply felt rights to personal privacy and to remain free from involuntary self-incrimination.

State v. Community Distributors, Inc., 64 N.J. 479, 484, 317 A.2d 697, 699 (1974). -See also, Herman, Privacy, The Prospective Employee, and Employment Testing: The Need to Restrict Polygraph and Personality Testing, 47 Wash.L.Rev. 73, 99 (1972). Thus, we are satisfied that the discharge of an at-will employee for his refusal to submit to a polygraph test violates the public policy of this Commonwealth, and an action for wrongful discharge "will lie. See, Perks, supra. Cf., Moniodis v. Cook, 64 Md.App. 1, 494 A.2d 212 (1985) (former employees were wrongfully, constructively discharged when, after refusing to submit to polygraph examinations, they were transferred to distant locations and their hours were changed).

Finally, we note that our research has not disclosed a decision of a court of this Commonwealth where the “constructive discharge” of an at-will employee has served as the basis for tort recovery upon a claim of wrongful discharge. However, we do not believe that an employer should be shielded from liability simply because he has not uttered the words, “You are fired.” Rather, we will impose liability for “constructive discharge” of an at-will employee “where the employer makes working conditions so intolerable that the employee is forced to resign. See, e.g., National Labor Relations Board v. Saxe-Glassman Shoe Corp., 201 F.2d 238 (1st Cir. 1953); National Labor Relations Board v. Chicago Apparatus Corp., 116 F.2d 753 (7th Cir.1940).” Pennsylvania Labor Relations Board v. Sand’s Restaurant, 429 Pa. 479, 484, 240 A.2d 801, 803 (1968). In so doing, we will employ the definition of “constructive discharge” as applied in cases litigated pursuant to the Pennsylvania Labor Relations Act, 43 Pa. C.S.A. § 211.1 et seq. See, Sand’s, supra

Instantly, appellant has alleged that almost immediately following his refusal to undergo polygraph examination, he was demoted, his hours reduced from forty to sixteen per week, his pay rate reduced from $5.50 to $4.00 per hour and his job location was changed. Although it is undisputed that appellant resigned from his position, we believe that the question of whether a nearly 71% reduction in weekly wages constitutes a “constructive discharge” should be decided by the jury. Cf., Moniodis v. Cook, 64 Md.App. 1, 494 A.2d 212 (1985) (former employees were wrongfully, constructively discharged when, after refusing to submit to polygraph examinations, they were transferred to distant locations and their hours were changed).

In sum, we find that the doctrine of collateral estoppel is inapplicable to this case, that a cause of action for wrongful discharge of an at-will employee exists when an employee is discharged for refusing to submit to a lie detector test and that the record reveals sufficient facts for the question of whether appellant was “constructively discharged” to go to trial.

Summary judgment reversed. Case remanded for trial. Jurisdiction relinquished.

      . Appellee avers that its client at 441 Smithfield Street requested that appellee transfer appellant and other security personnel to other locations.

      . 18 Pa.C.S.A. § 7321, Lie detector tests, provides in pertinent part: "(a) Offense defined. — A person is guilty of a misdemeanor of the second degree if he requires as a condition for employment or continuation of employment that an employee or other individual shall take a polygraph test or any form of a mechanical or electrical lie detector test.”

      . Pa.R.Crim.P. 133, in pertinent part, provides:
      (a) When the affiant is not a law enforcement officer and the offense(s) charged include(s) a misdemeanor or felony which does not involve a clear and present danger to any person or to the community, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove without unreasonable delay.
      (b) If the attorney for the Commonwealth
      (1) Approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;
      (2) Disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter the affiant may file the complaint with a judge of a Court of Common Pleas for approval or disapproval;

      . While we agree that the granting of a writ of habeas corpus is a final, appealable order, we note that the granting of the writ is not an acquittal and only entitles the accused to liberty for the present, leaving him subject to rearrest on the identical charges, provided additional evidence sufficient to establish a prima facie case is presented. Hetherington, 331 A.2d at 208; Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981); McNair’s Petition, 324 Pa. 48, 54, 187 A. 498, 501 (1936).
      Thus, we cannot say that the present granting of the writs in the prior criminal action are “final judgments” which can be used as a "shield” by appellee. The writs only meant that the Commonwealth did not establish a prima facie case with the evidence which it presented at that time. The writs do not establish that the Commonwealth could never make out a prima facie case in regards to the appellee’s alleged violation of the Polygraph Act. Given the fact that the Commonwealth did not desire to prosecute the criminal action from- its inception, appellant should not be bound by the district attorney's actions.

      . In Hutchinson, supra, our Supreme Court stated: “The private wrong was not merged in the public one, nor is the public prosecution intended to supersede the private action. Their purposes are entirely different. The person wronged is not chargeable with the conduct of the prosecution, and therefore not affected by an acquittal.”

      . In Drohan v. Sorbus, Inc., 401 Pa.Super. 29, 584 A.2d 964 (1990), we addressed the question of whether a plaintiff who alleged he was constructively discharged for his persistence in challenging company policies which he considered unwise or injurious to his company could recover for wrongful discharge. We held, however, that the plaintiff's allegations did not raise an inference that he was "constructively discharged” due to his refusal to participate in illegal activities. Thus, appellant did not state a cause of action for wrongful discharge of an at-will employee under the public policy exception. Drohan, 584 A.2d at 972. While in Drohan, supra, we were presented with facts wherein a “constructive discharge” was alleged, we did not specifically address the issue of whether "constructive discharge” can serve as the factual basis for a successful wrongful discharge cause of action.

      . We also note that, in unemployment compensation litigation, our Commonwealth Court has stated:
      "A claimant whose unemployment is due to voluntary termination bears the burden of proving that such termination was with cause of a necessitous and compelling nature; that is, circumstances which place a real and substantial pressure on the employee to terminate employment, and which would cause a reasonable person under like circumstances to do the same.” ... We have held that a substantial reduction in pay can constitute a necessitous and compelling cause for a claimant to voluntarily terminate employment.

        No. 1 Cochran v. Unemployment Comp. Bd. of Review, 135 Pa.Cmwlth. 252, 260, 579 A.2d 1386, 1390 (1990) (Citations omitted).
      Further, in Goss v. Exxon Office Systems Co., 747 F.2d 885 (3rd Cir. 1984), the Court of Appeals for the Third Circuit ruled that, in employment discrimination litigation pursuant to Title VII, federal courts recognize a cause of action for wrongful discharge of an employee when the employee has been "constructively discharged”, rather than fired. The definition of "constructive discharge” used in such litigation is the same as that set forth in Sand’s, supra.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    633 A.2d 634
    Genevieve R. FONZI, Appellee, v. Angelo A. FONZI, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1993.
    Filed Nov. 4, 1993.

      Gary G. Gentile, Pittsburgh, for appellant.
    Patricia G. Miller, Pittsburgh, for appellee.
    Before KELLY, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from the final decree of September 23, 1992, entered in the Court of Common Pleas of Allegheny County. We are presented with questions of whether the lower court abused its discretion in determining the equitable distribution of marital property. Upon review, we affirm.

We recount the history of this case as follows: Appellant (“husband”) and appellee (“wife”) were originally married on November 5, 1954, when each was eighteen years old. On May 8, 1959, the parties were divorced but subsequently entered into a common law marriage in April, 1962, which was solemnized in 1974. In December, 1986, the parties separated and were divorced by decree entered on July 24, 1987. On June 28, 1990, the lower court entered an order appointing William L. Steiner, Esquire, Special Master to conduct hearings and determine claims for equitable distribution, alimony and counsel fees. From October 29, 1990, through January 16, 1991, the Master conducted six days of hearings. On December 6,1991, the Master submitted his Report. Thereafter, both parties filed timely exceptions to the Master’s Report. On June 23, 1992, wife died unexpectedly. On July 20, 1992, the court below entered a memorandum and final decree sustaining in part, and dismissing in part, both parties’ exceptions to the Master’s Report. Husband then filed a motion for reconsideration. On September 23, 1992, the lower court entered a memorandum and final decree which sustained five of husband’s exceptions and one of wife’s exceptions and dismissed the remaining exceptions. The court below determined that the marital estate to be $3,845,172.00 and awarded wife one-half share of the marital estate or $1,922,586.00. On October 20, 1992, husband filed a notice of appeal. On November 16, 1992, the lower court directed husband to file a concise statement of matters complained of on appeal. Thereafter, husband timely filed his concise statement in accordance with Pa.R.A.P. 1925(b). On February 16, 1993, the lower court issued an opinion in support of the final decree dated September 23, 1992.

Appellant presents the following arguments for our review: I. THE LOWER COURT ERRED IN DETERMINING THE VALUE OF AFA ENTERPRISES, INC. BY DISALLOWING THE 29% DISCOUNT TO THE BLUE BOOK VALUE OF 89 VEHICLES IDENTIFIED IN THE FOURTH CATEGORY OF VEHICLES AND VALUED BY HUSBAND AT $734,000.00.
II. THE LOWER COURT ERRED IN DETERMINING THE VALUE OF AFA ENTERPRISES, INC. BY DISALLOWING THE TRANSACTIONAL COST OF $174,933.00 RELATED TO THE SALE OF EQUIPMENT AND THE ENVIRONMENTAL LIABILITY OF $50,000.00 FOR REMOVAL OF FUEL STORAGE TANKS ON AFA PROPERTY.
III. THE LOWER COURT ERRED IN AWARDING THE WIFE 50% OF THE MARITAL PROPERTY IN LIGHT OF THE HUSBAND’S OVERWHELMING AND DISPROPORTIONATE CONTRIBUTION TOWARD THE ACQUISITION OF SUCH PROPERTY AND IN VIEW OF WIFE’S UNTIMELY DEATH SUBSEQUENT TO TRIAL.
IV. THE LOWER COURT ERRED IN FAILING TO CONSIDER THE TAX CONSEQUENCES OF THE PLAN OF DISTRIBUTION WHICH REQUIRES HUSBAND’S USE OF AFTER-TAX DOLLARS TO PAY TO WIFE’S ESTATE $1,000,000.00 PLUS INTEREST IN TEN (10) EQUAL ANNUAL INSTALLMENTS.

Appellant’s Brief, “Table of Contents”.

In assessing whether the court below appropriately ascertained the equitable distribution of the marital property, we embrace the following analysis as articulated by our Court in Murphy v. Murphy, 410 Pa.Super. 146, 599 A.2d 647 (1991), appeal denied, 530 Pa. 633, 606 A.2d 902 (1992), cert. denied, — U.S. -, 113 S.Ct. 196, 121 L.Ed.2d 139 (1992):

Our scope of review in equitable distribution matters is limited. Lyons v. Lyons, 401 Pa.Super. 271, 276, 585 A.2d 42, 45 (1991). It is well established that “absent an abuse of discretion on the part of the trial court, we will not reverse an award of equitable distribution.” Hill v. Hill, 401 Pa.Super. 183, 185, 584 A.2d 1040, 1041 (1991), citing Hovis v. Hovis, 518 Pa. 137, 541 A.2d 1378 (1988). When reviewing the record of the proceedings, we are guided by the fact that trial courts have broad equitable powers to effectuate justice and we will find an abuse of discretion only if the trial court has misapplied the law or failed to follow proper legal procedures. Lyons v. Lyons, supra [401 Pa.Super.] at 276, 585 A.2d at 45. The finder of fact is entitled to weigh the evidence presented and access its credibility. Williamson v. Williamson, 402 Pa.Super. 276, 286, 586 A.2d 967, 972 (1991). The fact finder is free to believe all, part, or none of the evidence and the Superior Court will not disturb the credibility determinations of the court below.

See Viles v. Viles, 416 Pa.Super. 95, 98, 610 A.2d 988, 990 (1992) (Court adopts Murphy analysis in its determination of whether trial court abused its discretion in equitable distribution matter).

Guided by the aforesaid law, we proceed to address the merits of appellant’s contentions. First, appellant maintains that the lower court erred in adopting the Master’s determination that the 39 vehicles identified in the fourth category of vehicles should be appraised at their “Blue Book” value rather than 29% below Blue Book value. Husband is, the sole owner of stock in AFA Enterprises, Inc. (hereinafter “AFA”), a trucking and transportation company. In his appraisal of AFA’s vehicles, the Master classified the vehicles into five categories. William Knoebel, AFA’s Vice-President of Finance, testified as to the manner of how each category should be valued. With the exception of the fourth category, the Master adopted all of the valuations for the vehicles offered by Mr. Knoebel. Mr. Knoebel testified that the vehicles in the fourth category should be appraised 29% less than their value as reported in the Blue Book on the basis that AFA had auctioned some of its vehicles at this percentage below Blue Book value. The Master rejected Mr. Knoebel’s testimony and concluded, “AFA’s admitted limited experience in auctioning its vehicles does not, in the Master’s opinion, replace the great volume of information accumulated in the publication of a recognized source as the Blue Book.” Master’s Report, p. 13. Therefore, the Master disallowed the 29% discount and found that the value of the vehicles in the fourth category should be appraised at their Blue Book value.

Husband contends, “[t]he Master’s and lower court’s adoption of the Blue Book value for the vehicles in category four was arbitrary, capricious and unsupported by the evidence.” Appellant’s Brief, p. 18. Husband asserts that he offered uncontradicted evidence of the value of the 39 vehicles, and that the lower court and the Master, were, thus, compelled to employ husband’s appraisal of these vehicles. “The fact finder is free to believe all, part, or none of the evidence and the Superior Court will not disturb the credibility determinations of the court below.” Murphy, 410 Pa.Super. at 158, 599 A.2d at 653. Here, the Master and the lower court found that the value established in the Blue Book to be more credible than the value offered by husband. We find no basis to disturb that finding and accordingly reject husband’s argument that the lower court erred in determining the value of AFA by disallowing the 29% discount to the Blue Book value of 39 vehicles identified in the fourth category of vehicles. Moreover, even if we were to find husband’s value of the vehicles to be uncontradicted, we note that the Master and the lower court adequately explained why husband’s appraisal was rejected. See Semasek v. Semasek, 509 Pa. 282, 288, 502 A.2d 109,112 (1985) (although a factfinder need not accept even the uncontradicted opinion of a valuation expert, trial court should offer explanation of its appraisal in the event that it’s appraisal varies from the only value given in evidence).

Second, appellant argues that the lower court erred in not deducting from AFA’s financial statements the transactional cost of $174,933.00 related to the sale of equipment and the environmental liability of $50,000.00 for the removal of fuel storage tanks on AFA property. The Master rejected an adjustment for the transactional cost of $174,933.00 on the following basis:

There is no evidence, however, that AFA plans to sell the properties. Thus, despite Mr. Wolk’s [husband’s expert witness] denials, the Master finds that the deduction of theoretical transaction costs has the effect of valuing those assets at less than a fair market value. In addition, it would be inconsistent with the valuation of AFA as a going concern. Accordingly, such an adjustment is not appropriate.

Master’s Report, pp. 14-15. Similarly, the Master disallowed an adjustment for the estimated cost of removal of fuel storage tanks:

First, Mr. Wolk testified that he would likely treat such expenditure as an operating expense. While such an expenditure would affect the company’s future operating statement, it would not impact upon its September 9, 1989 (or December 31, 1989) balance sheet. Since the business is being valued on a recast book value basis, the possible incurrence of future operating expenses is not relevant.
Secondly, no evidence has been offered which would indicate that the presence of the tanks reduces the value of the property. Since the parties have stipulated to the fair market value of AFA’s real estate, the Master concludes that any impact upon its value resulting from the presence of the tanks is already reflected in those appraisals.

Master’s Report, p. 15. The lower court determined that the Master appropriately precluded an adjustment for the aforementioned costs. Trial Opinion 2/16/93, p. 2. After examining the record, and in view of the analysis provided by our Court in Murphy, supra, we find that the lower court did not abuse its discretion in its determination.

In evaluating whether the third contention raised by husband has any merit, we initially direct our attention to the following analysis as found by our Court in Semasek v. Semasek, 331 Pa.Super. 1, 11, 479 A.2d 1047, 1052 (1984); rev’d on other grounds, 509 Pa. 282, 502 A.2d 109 (1985):

[T]here is no simple formula by which to divide marital property. The method of distribution derives from the facts of the individual case. The list of factors of [3502(a) ] serves as a guideline for consideration, although the list is neither exhaustive nor specific as to the weight to be given the various factors. Thus, the court has flexibility of method and concomitantly assumes responsibility in rendering its decisions.

See Sergi v. Sergi, 351 Pa.Super. 588, 599-600, 506 A.2d 928, 934 (1986) (while another court may choose to give different weight to the factors of [§ 3502(a) ], it is apparent that the trial court considered these factors in its determination).

Husband contends that the Master and lower court erred in awarding the wife 50% of the marital property. Husband suggests that the Master and the court below presupposed that a 50/50 split was necessarily the most equitable and thus committed an error of law. Appellant’s Brief, pp. 32-33. See Powell v. Powell, 395 Pa.Super. 345, 577 A.2d 576 (1990) (trial court must not presume 50/50 division and must first analyze statutory list of factors to be considered in case requiring equitable distribution). Contrary to husband’s assertion, we find that the Master did not presume a 50/50 split in his equitable distribution analysis. In his Report, the Master began his evaluation of equitable distribution by recognizing the factors prescribed in § 3502 of the Divorce Code. The Master then proceeded to scrutinize the facts of the case in relationship to those factors and only then concluded that a 50/50 division was the most equitable. Master’s Report, pp. 42-46. We reject husband’s contention that a presumption should be implied from the Master’s conclusion.

Husband asserts that the Master and the lower court erred in weighing the factors set forth in § 3502 of the Divorce Code. The crux of husband’s argument is that he is entitled to a greater share of the marital estate because of his employment efforts. The lower court was cognizant of the fact that husband worked strenuously to develop the success of AFA. However, the court below also recognized the substantial contribution of wife as homemaker. The parties had four children, one of whom, Elissa died at 16. The lower court found that the entire burden of child-rearing was placed on wife. In addition, the court below determined that wife contributed considerably to husband’s professional career by entertaining his clients. Trial Opinion 2/16/93, p. 2. We find no abuse of discretion in the lower court’s assessment of factors in this case. See Diamond v. Diamond, 360 Pa.Super. 101, 112, 519 A.2d 1012, 1018 (1987), appeal denied, 516 Pa. 633, 533 A.2d 92 (1987) (in ascertaining equitable distribution Master must be permitted flexibility in order to do economic justice).

Husband also maintains that he should receive a greater share of the marital estate on the ground that wife is now deceased. The lower court fully considered husband’s argument in its determination of equitable distribution. The court below found that wife was entitled to her equitable share during her lifetime, and, under the circumstances of the case, is entitled to pass her share to her estate. Trial Opinion 2/16/93, pp. 4-5. Here, the divorce decree was entered on July 24, 1987. From October 29, 1990, through January 16, 1991, the Master conducted six days of hearings to determine claims of equitable distribution, alimony and counsel fees. On December 6,1991, the Master submitted his Report. On June 23, 1992, wife died unexpectedly. Upon review of the record, we conclude that the lower court did not abuse its discretion in rejecting husband’s contention that he is entitled to a greater share of the marital estate because of wife’s death. See Pastuszek v. Pastuszek, 346 Pa.Super. 416, 499 A.2d 1069 (1985), appeal denied (1986), (once a divorce decree has been entered, the right of the spouse to the distribution of marital property and other economic claims where those matters have been properly put in issue before the death of the spouse is vested). Having concluded that the issues raised in husband’s third argument do not warrant reversal, we address husband’s final contention.

Husband’s fourth argument challenges the lower court’s determination of the tax and interest consequences arising from the plan of distribution. Initially, we note that the Master proposed a distribution scheme which required a payment from husband to wife of $1,482,000.00 over a fourteen-month period. Husband filed an exception to the Master’s plan of distribution. Husband requested the following distribution scheme:

Husband suggests that he make a lump sum distribution to Wife in an amount sufficient to reduce his outstanding balance to $1,000,000. The $1,000,000 shall then be paid in equal installments at a rate of 6% on the outstanding balance ... She will be receiving principal payments of $100,000 per year plus interest in the outstanding balance

Appellant’s Exceptions to Master’s Report, p. 46. The lower court sustained husband’s exception and provided the following distribution scheme which is similar to husband’s requested plan:

In order to reduce the economic hardships on Husband and ensure an equitable distribution of the marital estate, the payment scheme shall be carried out over a period of ten (10) years. Husband shall make a lump sum distribution in the amount of $379,255.00 to Wife within sixty (60) days of this Decree. This will reduce Husband’s outstanding balance to $1,000,000.00. The outstanding balance shall then be paid in ten equal annual installments, -with an interest rate of prime plus one percent (1%) on any outstanding balance.

Memorandum of Final Decree 9/23/92, pp. 2-3. Husband herein contends that the lower court failed to consider the tax and interest ramifications in its determination of equitable distribution. Husband completely ignores the fact that the court below adopted a distribution scheme nearly identical to the plan requested by husband. We find that the lower court thoroughly assessed the economic consequences of the distribution scheme, and we conclude that the record fails to reflect an abuse of discretion on the part of the trial court.

The final decree of September 23, 1992 is affirmed.

      . On October 22, 1992, husband filed an amended notice of appeal to reflect the correct case number.


author: OLSZEWSKI, Judge:

text:
    633 A.2d 640
    COMMONWEALTH of Pennsylvania v. James DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 28, 1993.
    Filed Nov. 18, 1993.
    Sandra F. Zavodnick, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.

      Before ROWLEY, President Judge, and OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

This is James Davis’ appeal from judgment of sentence. Davis was charged with possession of a controlled substance with intent to deliver, possession of drug paraphernalia and criminal conspiracy. His trial resulted in a hung jury. Thereafter, on May 25, 1988, Davis entered pleas of nolo contendere whereupon the Honorable Eugene E.J. Maier found him guilty on all charges. A pre-sentence report and psychiatric report were ordered and sentencing was set for July 14, 1988. Davis failed to appear for sentencing and the court issued a bench warrant. Three and one-half years later Davis was arrested on other charges and sentenced to an aggregate of 5 to 10 years on the above charges on March 17, 1992. Davis now appeals this sentence arguing the trial court abused its discretion in imposing an excessively harsh sentence which is considerably greater than the one imposed upon his co-defendant. He argues that the court based his sentence on impermissible considerations and failed to take into account his “present accomplishments.”

The Pennsylvania Constitution guarantees the right to appeal. Pa.Const. Art. 5, § 9. This right, however, may be waived. “Nevertheless, the right to appeal is conditioned upon compliance with the procedures established by this Court, and a defendant who deliberately chooses to bypass the orderly procedures afforded one convicted of a crime for challenging his conviction is bound by the consequences of his decision.” Commonwealth v. Passaro, 504 Pa. 611, 614, 476 A.2d 346, 348 (1984) (citations omitted). The Passaro Court held that a fugitive’s appeal will be quashed in his absence and will not be reinstated upon his return to custody. Id. Likewise, a fugitive’s post-trial motions will be dismissed because of his fugitive status. Commonwealth v. Boyd, 244 Pa.Super. 98, 366 A.2d 934 (1976) (fugitive’s post-trial motions dismissed and court did not abuse its discretion by not reinstating the motions when the defendant was returned to custody); Com monwealth v. Morrison, 334 Pa.Super. 505, 483 A.2d 566 (1984) (defendant’s post-trial motions waived because of his fugitive status even though he was in custody when the motions were dismissed); Commonwealth v. Lines, 415 Pa.Super. 438, 609 A.2d 832 (1992) (no appellate review where defendant fled during jury deliberations, post-trial motions were filed in his absence and trial court denied the motions on substantive grounds upon his return), alloc. denied, 532 Pa. 662, 616 A.2d 983 (1992).

Most recently, the Supreme Court has addressed this issue in Commonwealth v. Jones, 530 Pa. 536, 610 A.2d 439 (1992). In Jones, defendant fled during jury selection and was tried in absentia. Defendant was convicted and post-trial motions were filed in his absence. These motions were denied on the merits and defendant was sentenced, again in absentia. Defendant was arrested while his appeal of judgment of sentence was pending. This Court quashed his appeal and the Supreme Court affirmed, ruling: “A defendant’s voluntary escape acts as a per se forfeiture of his right of appeal, where the defendant is a fugitive at any time after post-trial proceedings commence. Such a forfeiture is irrevocable and continues despite the defendant’s capture or voluntary return to custody.” Id. at 541, 610 A.2d at 441 (emphasis added). Sentencing is to take place after post-trial motions are decided. See Commonwealth v. Hurst, 367 Pa.Super. 214, 532 A.2d 865 (1987); Comments to Pa.R.Crim.P. 1123 & 1405. Thus, sentencing may be deemed a post-trial proceeding and as such, Davis has forfeited his right to appeal. We cannot allow one convicted of a crime who flees before sentencing to appeal his sentence and argue for leniency because he has reformed himself during his flight. We will not permit a defendant to flout our judicial system in this manner.

For the foregoing reasons, we quash Davis’ appeal. Jurisdiction relinquished.


author: DEL SOLE, Judge:

text:
    633 A.2d 641
    COMMONWEALTH of Pennsylvania v. Hubert BALLARD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 16, 1993.
    Filed Nov. 8, 1993.

      James G. Stock, Public Defender, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

In this appeal we are asked to determine whether the trial court erred in admitting certain testimony into evidence at trial. This testimony by a police officer included a detailed statement made by Appellant’s co-defendant, whose trial had been severed from Appellant’s and who had exercised his Fifth Amendment right not to testify at Appellant’s trial. We find that such testimony, which directly inculpated Appellant, was improperly admitted and that because such error was not harmless, reversal and remand for a new trial are required.

The facts underlying the conviction of Appellant, Hubert Ballard, are as follows: In the early morning hours of October 7, 1990, the burning body of the victim, Marvin Fuller, was discovered in a remote section of Pittsburgh. The police determined that the victim had been stabbed to death and his corpse dumped over a hillside and set on fire with gasoline. Further investigation revealed that he had been living at 5439 Penn Avenue in the Garfield Section of Pittsburgh, along with Rocky Mitchell, Mitchell’s niece Melony Ford, and Vincent Delacerna. Appellant and Ms. Ford’s sister Camille lived nearby in another apartment.

On the evening of October 6, 1990, Appellant and Camille Ford were visiting Delacerna and Melony Ford in their Penn Avenue apartment. The two couples drank, watched television and conversed with each other until around 3:30 a.m., when the victim returned home without his key and began banging on the window. Appellant and Delacerna then argued with the victim, who retired to his bedroom. Later, after some discussion concerning the victim, Appellant and Delacerna entered his bedroom and Fuller was stabbed to death. The body was contained in a garbage bag and put in the trunk of Appellant’s car. Together with the two women, Ballard and Delacerna drove to a gas station where they purchased gas and had to place a deposit on the container. They then drove to a remote area, dumped the body, drenched it with gasoline and set it on fire. Hours later when interviewed by the police, Appellant and Delacerna made several different statements; Appellant denied his involvement in the plan to kill the victim, claiming that he had only been trying to intervene in an altercation between the victim and Delacerna.

Appellant was charged with Criminal Homicide, Criminal Conspiracy, Hindering Apprehension or Prosecution, Abuse of Corpse, Theft and Receiving Stolen Property. Counsel for Appellant filed an Omnibus Pre-trial Motion claiming that severance from co-defendants Delacerna and Melony Ford was necessary for a fair trial, that the weight of the evidence established that Appellant had not conspired to kill the victim, and that Appellant had not hindered the apprehension of co-defendant Delacerna. Following argument on the motion, the trial court granted the Motion to Sever and amended the Criminal Conspiracy charge to read that Appellant had conspired with Delacerna and had committed the overt acts of discussing and participating in the stabbing of the victim.

Appellant pled guilty to Hindering Apprehension or Prosecution, Abuse of a Corpse and Receiving Stolen Property. The Commonwealth moved for dismissal of the charge of Theft, which was granted. Prior to trial on the remaining charges, the Commonwealth filed a Motion in Limine, seeking the exclusion of the testimony of defense witness Bonnie Vilsack, but subsequently withdrew the motion.

At Appellant’s jury trial, defense witness Bonnie Vilsack testified that while she was employed as a nurse at the Allegheny County Jail, she had to draw blood from a group of inmates which included Appellant and Delacerna. While attending to Delacerna, Ms. Vilsack asked him what his charges were and he responded, “Homicide.” Ms. Vilsack then asked, “Well, did you do it?” and Delacerna replied, “Yes.”

In the alternative to its Motion in Limine, the Commonwealth had argued that if Ms. Vilsack’s testimony was admissible, it should be allowed to present, as rebuttal, the statement given by Delacerna to Detective Paul Marraway of the Pittsburgh Police. In this statement, Delacerna denies killing the victim and implicates Appellant as the one who planned the murder and ultimately stabbed the victim. Over defense objection, the trial court ruled that if the defense presented the testimony of Ms. Vilsack, it would allow the Commonwealth to admit Delacerna’s statement to the police in rebuttal. Thus, after Ms. Vilsack testified, Detective Marraway testified concerning Delacerna’s statement which inculpated Appellant. Defense counsel renewed his objection and moved for a mistrial, and the trial court denied both motions. The jury found Appellant guilty of Voluntary Manslaughter and not guilty of Criminal Conspiracy. Appellant’s counsel thereafter filed a Motion for New Trial and/or in Arrest of Judgment, arguing that the trial court erred in denying Appellant’s Motion in Limine, and in admitting Delacerna’s statement into evidence. The motion was denied, and Appellant was sentenced to four to eight years imprisonment for his conviction of Voluntary Manslaughter and a consecutive period of twelve to twenty-four months for his guilty plea to Abuse of a Corpse. This appeal followed.

Appellant argues that the trial court erred in allowing the detective to recount Delacerna’s statement which implicated Appellant, and that the court further erred in denying Appellant’s motion for a mistrial following the admission of that statement; that Appellant’s conviction of Voluntary Manslaughter was against the weight and sufficiency of the evidence, and that trial counsel was ineffective for failing to preserve these issues for appellate review; and that the trial court erred in sentencing Appellant in the aggravated range when it failed to state on the record adequate reasons for such sentence, and that trial counsel was ineffective for failing to preserve this issue for appellate review.

In regard to Appellant’s first claim on appeal, the trial court classified both Delacerna’s statement to Ms. Vilsack and Delacerna’s statement to Detective Marraway as hearsay statements, but ruled that they were admissible under the hearsay exception for statements against penal interest. We disagree with the trial court’s classification of Delacerna’s statement to Detective Marraway as hearsay. A “hearsay” statement is an out-of-court statement offered in court to prove the truth of the matter asserted. Commonwealth v. Underwood, 347 Pa.Super. 256, 259, 500 A.2d 820, 822 (1985). Because hearsay is regarded as unreliable, “[i]t is well settled in our law that hearsay evidence is inadmissible unless it qualifies under one of the recognized exceptions to that rule.” Commonwealth v. Bujanowski, 418 Pa.Super. 163, 169, 613 A.2d 1227, 1230 (1992), quoting Commonwealth v. Smith, 523 Pa. 577, 591, 568 A.2d 600, 607 (1989). Statements against penal interest are admissible as exceptions to the hearsay rule when there are circumstances that provide that such declarations are trustworthy and reliable. Commonwealth v. Bracero, 515 Pa. 355, 366, 528 A.2d 936, 941 (1987). See also, Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Commonwealth v. Hackett, 225 Pa.Super. 22, 307 A.2d 334 (1978); Federal Rule of Evidence 804(b)(3).

In the instant case, the Commonwealth offered Delacerna’s statement to Detective Marraway not for its substantive truth, but only to impeach his prior statement to Ms. Vilsack which was included in her testimony at trial. Because it was not being offered for its truth, such a statement is not hearsay, and ordinarily would be admissible, regardless of whether it fell under one of the exceptions to the hearsay rule. Thus, there was no error in admitting the portion of Delacerna’s statement where he denied killing the victim; this directly contradicted his statement to Ms. Vilsack and was proper rebuttal.

However, it is that portion of Delacerna’s statement to Detective Marraway, which claimed Appellant was responsible for the victim’s death, that presents the actual issue in this case. Although the trial court instructed the jury that Detective Marraway’s testimony was to be considered only in determining what weight to give Delacerna’s statement to Ms. Vilsack, and, although the trial court reminded the jury that Delacerna was not available to testify on behalf of either party, nor was he cross-examined to test his credibility, its admission was in error. The case law of this Commonwealth and the Confrontation Clause of the Sixth Amendment renders this portion of Delacerna’s statement inadmissible for any purpose at Appellant’s trial.

Pennsylvania case law has held that the use of a co-defendant’s statement at trial in which he inculpates the accused is inherently prejudicial to the defendant, and therefore such references to the defendant’s guilt must be redacted prior to the admission of such a statement at trial. In regard to the practice of redaction, in which all testimonial references in a confession to anyone other than the declarant are omitted, this court has held that “the jury is ... not permitted to consider the non-testifying co-defendant in assessing the defendant’s culpability.” Commonwealth v. Young, 263 Pa.Super. 333, 337, 397 A.2d 1234, 1237 (1979). In sanctioning the use of redaction, our Supreme Court has limited its application to “... confession(s) ... not contain(ing) a trace or hint of participation in the crime by appellant (the confessor’s co-defendant) ...” Commonwealth v. Boykin, 276 Pa.Super. 56, 61, 419 A.2d 92, 94 (1979), quoting Commonwealth v. Johnson, 474 Pa. 410, 414, 378 A.2d 859, 861 (1977). Therefore, the trial court erred in failing to redact the portion of Delaeerna’s statement which inculpated Appellant. Furthermore, we find that the trial court’s error in admitting this portion of Delacerna’s statement was not harmless, in light of the Confrontation Clause of the Sixth Amendment to the United States Constitution, thereby requiring a new trial.

The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403-405, 85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923 (1965), provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The Clause “operates in two separate ways to restrict the range of admissible hearsay.” Commonwealth v. Bujanowski, 418 Pa.Super. 163, 175, 613 A.2d 1227, 1233 (1992), quoting Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980). In Ohio v. Roberts, the United States Supreme Court set forth a general approach for determining whether an incriminating statement is admissible under the requirements of the Confrontation Clause:

First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case ..., the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.

Id., at 64, 100 S.Ct. at 2538.

Second, once a witness is shown to be unavailable, “the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.’ ” Id., at 65,100 S.Ct. at 2539, quoting Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934). Thus, in situations where the "witness has been shown to be unavailable, the admission of hearsay is limited to situations where the declaration is inherently trustworthy, bearing adequate “indicia of reliability.” Commonwealth v. Kravontka, 384 Pa.Super. 346, 558 A.2d 865 (1989); Ohio v. Roberts, supra, at 66, 100 S.Ct. at 2539.

In the case sub judice, Delacerna chose to invoke his Fifth Amendment privilege not to testify. A witness who invokes his Fifth Amendment privilege is deemed “unavailable” for the purpose of testifying, provided the court first determines that the witness’ concern with self-incrimination is legitimate. Commonwealth v. McGrogan, 523 Pa. 614, 621, 568 A.2d 924, 928 (1990). Here, Delacerna’s concern was legitimate, and therefore, he was unavailable for purposes of the Confrontation Clause.

However, because Appellant had neither the opportunity to confront nor cross-examine Delacerna at the time the statement was made, the “trustworthiness” requirement set forth by Ohio v. Roberts, supra, is not met, and Appellant’s Sixth Amendment right has been violated.

Furthermore, under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the use of an out-of-court statement of a third person implicating the accused at trial has been held to be a violation of the accused’s Sixth Amendment right of confrontation.

In Bruton, the Court found a violation of confrontation rights in the admission of a co-defendant’s confession, implicating Bruton, where the co-defendant did not take the stand at the joint trial of Bruton and his co-defendant. The Court emphasized that the error arose because the declarant “does not testify and cannot be tested by cross examination,” Id., at 136, 88 S.Ct. at 1628, and further stated that “[i]t was against such threats to a fair trial that the Confrontation Clause was directed.” Id. Of special concern to the Bruton Court was the effectiveness of limiting instructions given to the jury, whereby they were instructed that the confession of Bruton’s co-defendant was admissible only against the co-defendant, and not against Bruton. The Court held that because a confession that incriminates an accomplice is so “inevitably suspect” and “devastating,” the ordinarily sound assumption that a jury will be able to follow faithfully its instructions could not be applied. Lee v. Illinois, 476 U.S. 530, 542, 106 S.Ct. 2056, 2063, 90 L.Ed.2d 514 (1986), citing Bruton, supra, 391 U.S. at 136, 88 S.Ct. at 1628.

In Lee v. Illinois, supra, the Supreme Court again examined the propriety of admitting an accomplice’s out-of-court confession which implicated the accused, and stated that:

absent a showing of “sufficient ‘indicia of reliability’ ” to overcome the strong presumption against the admission of uncross-examined hearsay, “there is no occasion to depart from the time-honored teaching that a co-defendant’s confession inculpating the accused is inherently unreliable, and that convictions supported by such evidence violate the constitutional right of confrontation.”

Commonwealth v. Bujanowski, 418 Pa.Super. at 176, 613 A.2d at 1234, quoting Lee, supra, at 546, 106 S.Ct. at 2065 (footnote omitted).

In the instant case, the problems attendant to the admission of such statements during a joint trial are nonexistent, as Delacerna was severed as a defendant from Appellant’s trial. However, the fact remains that Appellant did not have the opportunity to cross-examine Delacerna, whose out-of-court statement which inculpated Appellant was admitted at trial.

As we have stated, the portion of Delacerna’s statement to Detective Marraway in which he denied killing the victim was admissible as an inconsistent statement to be considered by the jury in its determination of the weight to be afforded Delacerna’s statement to Ms. Yilsack. However, although the Commonwealth did not seek admission of the inculpatory portion of the statement for its substantive evidentiary value, we find the trial court’s ruling on the statement’s evidentiary purpose to be unclear and potentially misleading to the jury. Although the trial court’s jury instruction referred to the fact that Detective Marraway’s testimony should be considered when determining the weight to give Delacerna’s statement to Ms. Vilsack, we find a conflicting statement in its opinion, in which the court explicitly stated that Delacerna’s entire statement to Detective Marraway was admitted for its substantive evidentiary value, and not solely for purposes of rebuttal or impeachment: “... the statement taken from Mr. Delacerna by Detective Marraway became very relevant and probative of the issue at hand, that is, who killed the victim.” Opinion, Melvin, J., p. 7 (emphasis supplied). Because of the trial court’s obvious ambivalence concerning the statement’s evidentiary purpose, we cannot assume that the jury clearly understood that the statement was sought to be admitted only for the limited purpose of impeachment. However, no cautionary or limiting instruction can cure the constitutional violation, as the Bruton court found that once a co-defendant’s statement which inculpates the defendant is admitted, the resulting prejudice to the defendant is so great that it cannot be negated by a curative instruction to the jury. Therefore, under Bruton, the trial court’s failure to redact the inculpatory portion of Delacerna’s statement constitutes error which can be cured under no circumstances. Because such error is not harmless, a remand for a new trial is necessary.

In light of the foregoing body of case law, it is clear that Appellant’s Sixth Amendment right of confrontation has been violated. Furthermore, as a result of this error, a new trial is warranted in which the inculpatory portion of Delacerna’s statement is to be redacted, and the jury is to be instructed that the admissible portion of the statement is to be considered solely for its effect in determining the weight of Ms. Vilsack’s testimony, and not for its substantive evidentiary value.

Because Appellant’s claim regarding the sufficiency of the evidence would require a complete discharge if found to have merit, we must address it briefly at this time. In determining the sufficiency of the evidence, this court must consider evidence which was actually received, whether the trial court’s rulings thereon were correct or not. Commonwealth v. Lewis, 424 Pa.Super. 531, 623 A.2d 355 (1993), citing Reichman v. Wallach, 306 Pa.Super. 177, 452 A.2d 501 (1982). When viewed in the light most favorable to the Commonwealth as the verdict winner, the evidence received in the instant case, including the portion of Delacerna’s statement which inculpated Appellant, would enable the trier of fact to find every element of voluntary manslaughter proven beyond a reasonable doubt. Accordingly, Appellant’s sufficiency claim is meritless. Because we are reversing and remanding for a new trial, we do not reach the other issues raised in this appeal.

Judgment of sentence reversed; case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . The Commonwealth has acknowledged in its brief that Delacerna’s statement was not admitted pursuant to the holdings in Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), and Commonwealth v. Burgos, 530 Pa. 473, 610 A.2d 11 (1992). These cases involved the use of prior inconsistent statements as substantive evidence, where such statements were given under oath at a formal legal proceeding, had been reduced to writing and signed by the witness, or were contemporaneous verbatim recordings of the witness’ statements.

      . Because we do not consider Delacerna’s statement to Detective Marraway to be hearsay, we need not analyze whether such statement is indeed a statement against penal interest, as the application of such an exception is rendered unnecessary.

      . Even if this portion of Delacerna’s statement had been admitted strictly in rebuttal to his prior statement included in Ms. Vilsack’s testimony, we would question the relevancy of this portion of the statement. That part of the statement in which Delacerna denies killing the victim is definitely relevant to rebut his prior statement to Ms. Vilsack in which he stated that he did kill the victim. However, because Delacerna’s statement to Ms. Vilsack contained no reference to Appellant’s role in the stabbing, rebuttal is unnecessary, and therefore the latter portion of Delacerna’s statement would be irrelevant for any purpose, even if not found to be prejudicial. The Commonwealth has not raised this issue, however, and therefore, we decline to base our holding upon this rationale.

      . The fact that we have determined that the objectionable portion of Delacerna's statement did not constitute a violation of the hearsay rule has no bearing on whether the admission of that portion of the statement violated the Confrontation Clause. As the United States Supreme Court recognized in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the Confrontation Clause and the hearsay rule "stem from the same roots,” but the Court has never equated the two. Indeed, the Court has “more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception.” California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), citing Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Thus, these two issues demand separate analysis.


author: POPOVICH, Judge: BROSKY, Judge,

text:
    633 A.2d 647
    COMMONWEALTH of Pennsylvania, Appellee, v. Joseph RICKABAUGH, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Susan Marie RICKABAUGH, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1993.
    Filed Nov. 10, 1993.

      Paul M. Puskar, Hollidaysburg, for appellants.
    Elizabeth A. Doyle, Asst. Dist. Atty., Hollidaysburg, for Com., appellee.
    Before KELLY, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Blair County following appellants’ convictions on charges of possession of marijuana, possession with intent to deliver marijuana and criminal conspiracy. Appellants contend that their waiver of Fifth Amendment rights was not knowing and intelligent because the lower court refused to charge the jury on the defense of entrapment, despite having represented prior to appellants’ testimony that such a charge would be given. Upon review, we reverse the judgment of sentence and remand for a new trial.

The record reveals the following: Pursuant to a drug investigation spanning from May of 1989 to August of 1989, the Pennsylvania State Police came in contact with one Mary Specht through an informant. Ms. Specht was a baby-sitter for appellants’ son. On several occasions, an undercover police officer purchased marijuana from Ms. Specht, and, at various times, the officer drove Ms. Specht to the mobile home park where appellants resided for the purpose of obtaining marijuana. Ms. Specht entered appellants’ trailer home and subsequently purchased or received marijuana from appellants and delivered the same to the undercover police officer. After the purchase of marijuana by Mary Specht on August 28, 1989, the Pennsylvania State Police obtained a search warrant for appellants’ trailer home and seized 164 grams of marijuana, boxes of plastic bags, scales and weights. Mary Specht was unaware that she was selling marijuana to a police officer.

At trial, following the Commonwealth’s presentation of testimony, appellants moved for a demurrer on the basis that the evidence established entrapment as a matter of law. Trial N.T. 6/12/91, p. 140. The trial judge and counsel held an extensive discussion on whether that demurrer should be granted in light of our Court’s decision in Commonwealth v. Wright, 396 Pa.Super. 276, 578 A.2d 513 (1990) (en banc). Trial N.T. 6/12/91, pp. 140-146. Thereafter, upon construing the language of our Court’s decision in Wright, the trial judge ruled that entrapment is a matter for the jury to decide and thus denied appellants’ demurrer. Trial N.T. 6/12/91, p. 146-147.

After the lower court determined that entrapment is a matter for the jury to decide, appellants took the stand and admitted to smoking marijuana, possessing marijuana in their trailer home and giving marijuana to Mary Specht in exchange for her babysitting services. Trial N.T. 6/12/91, pp. 149-151, 154-164, 166-174. Following appellants’ testimony, the court adjourned for the day of June 12, 1991. The trial judge and counsel, thereafter, met in chambers and held discussions off the record. The trial judge expressly granted appellants’ request for a charge of entrapment with regard to the sale or delivery of marijuana by appellants to Mary Specht. Trial Opinion 2/10/93, p. 4. However, on the following morning of June 13,1991, again in chambers, and again off the record, the Commonwealth advised the trial judge that it was not proceeding on any allegations of sale or delivery to Mary Specht but only on the marijuana that was obtained as a result of the search warrant. Trial Opinion 2/10/93, p. 4. Under those circumstances, the trial judge determined that a charge of entrapment would be inappropriate and thus denied appellants’ request for this charge. Trial Opinion 2/10/93, p. 4. After the discussions in chambers, the court reconvened and appellants gave their closing argument on June 13, 1991. Trial N.T. 6/13/91, pp. 177-202.

On the same day, the jury found appellants guilty of the charges of possession of marijuana, possession with the intent to deliver and criminal conspiracy. On September 25, 1991, the lower court entered an order denying appellants’ post-trial motions. On December 2, 1991, the court below entered the judgment of sentence. Appellants then filed a motion for reconsideration of sentence and a notice of appeal.

Appellants contend that their waiver of Fifth Amendment rights was invalidated on the ground that the lower court failed to charge the jury on the defense of entrapment. Appellants structure their argument as follows: “Because [appellant’s] waiving of their rights against self-incrimination was conditioned by their acceptance of the trial court’s ruling at Demurrer, the intelligence and voluntariness of that waiver evaporated when the issue of entrapment was negated as a matter for the jury.” Appellants’ Brief, p. 9. In assessing whether appellants’ argument has merit, we are guided by the following principles: “A constitutional right will only be deemed waived where the decision to waive that right is both knowing and intelligent.” Commonwealth v. Johnson, 319 Pa.Super. 463, 470, 466 A.2d 636, 640 (1983). “For that individual to be able to make a knowing and intelligent waiver of a constitutional right, he must have been aware of both the nature of the constitutional right and the risk of forfeiting the same.” Commonwealth v. Szekeresh, 357 Pa.Super. 149, 154, 515 A.2d 605, 607, appeal denied, 515 Pa. 606, 529 A.2d 1080 (1986); See Commonwealth v. Barnette, 445 Pa. 288, 285 A.2d 141 (1971) (to be a knowing and intelligent waiver the defendant must be aware of both the right and the risks of forfeiting the same). The focal point of waiver of constitutional rights is whether defendant made an informed decision. Szekeresh, 357 Pa.Super. at 156, 515 A.2d at 608. “If all necessary information is communicated to the defendant, a waiver will not be disturbed.” Commonwealth v. Carey, 235 Pa.Super. 366, 372, 340 A.2d 509, 511 (1975). Presumption must always be against waiver of a constitutional right. Johnson, 319 Pa.Super. at 472, 466 A.2d at 641. “Regarding any rights guaranteed by either the United States Constitution or the Pennsylvania Constitution, for a waiver of those rights to be valid, the Commonwealth must prove by a preponderance of the evidence that the alleged waiver was intelligently made.” Commonwealth v. Coleman, 477 Pa. 400, 407, 383 A.2d 1268, 1271 (1978) (emphasis added).

In light of the aforesaid law and upon close examination of the record, we find that appellants’ decision to waive their Fifth Amendment rights was not knowing and intelligent since appellants’ waiver was induced by the lower court’s express ruling that entrapment was a matter for the jury to decide. Here, following the Commonwealth’s presentation of testimony, appellants moved for a demurrer on the ground that the evidence established entrapment as a matter of law. Upon close review, the court below denied that demurrer and specifically stated on the record that entrapment is a matter for the jury to decide. Trial N.T. 6/12/91, p. 147. Implicit, therein, is the court’s decision to instruct the jury on the defense of entrapment. Relying upon the court’s ruling that entrapment is a matter for the jury to decide, appellants took the stand and testified to criminal acts of marijuana possession and delivery to Mary Specht. That testimony, offered to prove their defense of entrapment, also established guilt for the charges which they were ultimately convicted. But following appellants’ testimony, the Commonwealth advised the lower court that it was not proceeding on any allegations of sale or delivery to Mary Specht and only on the marijuana that was obtained as a result of the search warrant. Under those circumstances, the lower court found that a charge of entrapment would be inappropriate and thus refused to instruct the jury on this charge. Thereafter, appellants were convicted of possession of marijuana, possession with the intent to deliver and criminal conspiracy.

Notwithstanding the Commonwealth’s withdrawal of the charges of sale or delivery to Mary Specht, appellants’ testimony was extremely prejudicial to their case. Appellants would not have testified but for the court’s representation that the defense of entrapment would be evaluated by the jury. Because the court below refused to present the issue of entrapment to the jury, we conclude that appellants’ waiver of Fifth Amendment rights was not knowing and intelligent. Certainly, at the time appellants decided to forgo their Fifth Amendment rights and testify, the record does not reveal that appellants knew or should have known that the lower court would later refuse to charge the jury on entrapment. Accordingly, under the particular facts of this case, we conclude that the lower court committed an error of law in failing to charge the jury on the defense of entrapment.

Judgment of sentence reversed and case remanded for trial. Jurisdiction relinquished.

BROSKY, Judge,

concurring.

I concur in the result reached by the majority since I agree that the instant case must be remanded to the trial court for a new trial.

Perhaps appellants would not have testified and admitted to smoking marijuana, possessing marijuana and giving marijuana to Mary Specht if they had known that the trial court would not give a jury charge on entrapment. However, I believe that the failure to give a jury charge on entrapment was not as damaging to appellants’ case as the trial court’s indication to appellants that it would submit the entrapment issue to the jury: that trial court action provided inducement to appellants to testify and absent their highly damaging testimony it is quite conceivable that the jury may not have convicted them of possession of marijuana, possession with intent to deliver marijuana and conspiracy, regardless of the giving or withholding of any jury charge on entrapment.

      . Appellants are husband and wife whose charges were tried together pursuant to Pa.R.Crim.P. 1127.

      . The privilege afforded against compulsory self-incrimination by the Fifth Amendment to the United States Constitution is protected under the Fourteenth Amendment against abridgment by the states. Commonwealth v. Carrera, 424 Pa. 551, 227 A.2d 627 (1967). The privilege extends not only to the disclosure of facts which would in themselves establish guilt, but also to any fact which might constitute an essential link in a chain of evidence by which guilt can be established. Commonwealth v. Hawthorne, 428 Pa. 260, 236 A.2d 519 (1968).

      . In denying appellants’ demurrer and ruling that entrapment is a matter for the jury to decide, the lower court stated that it relied upon the following language provided by our Court in Wright, 396 Pa.Super. at 287, 578 A.2d at 519 (citations omitted):
      “Thus, it is clear that this Commonwealth has adopted an objective standard for evaluating whether entrapment has occurred. Generally, speaking, this standard is employed by the factfinder. Whether an entrapment has occurred is a question for the jury unless the evidence points only to one conclusion, in which case it may be decided as a matter of law. In order to prevail on a claim that the evidence demonstrated entrapment as a matter of law, appellants must show that the evidence was so overwhelming that it could admit no other conclusion and because appellants did not meet this standard the Court concluded ...”
      Trial N.T. 6/12/91, pp. 146-147. In Wright, our Court found that the evidence established entrapment as a matter of law. Consequently, we held that the trial court committed an error of law in submitting the issue of whether defendant was entrapped to the jury. Id.., at 290-295, 578 A.2d at 520-523.

      . On April 1, 1992. the lower court entered an order directing appellants to file a concise statement of the matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellants did not file their concise statement of matters complained of on appeal until April 30, 1992. R. 22. Although appellants failed to file a timely statement, we, nevertheless, entertain appellants' appeal from the judgment of sentence. See Pa.R.A.P. 1925(b); Commonwealth v. Mathis, 317 Pa.Super. 362, 464 A.2d 362 (1983) (notwithstanding defendant's failure to comply with Rule 1925(b), Superior Court reviewed issues raised in post-trial motions which were addressed in trial court's opinion). We note that the arguments presented by appellants, herein, were raised in appellants’ post-trial motions and addressed by the lower court’s opinion dated February 10, 1993.

      . Appellants raise two other related contentions. First, appellants maintain that their closing argument was affected prejudicially by the lower court’s refusal to give an entrapment charge. Appellants’ Brief, pp. 5-7. Second, appellants assert that there are colorable facts from which the jury could find entrapment, and thus the court below committed an error of law in precluding the jury from making that determination. Appellants’ Brief, pp. 8-12. Because we find a reversal of the judgment of sentence warranted on the ground that appellants’ waiver of Fifth Amendment rights was invalidated, we need not reach the merits of appellants’ other arguments.

      . Our decision, of course, does not address the question of whether the evidence establishes the defense of entrapment. On remand, the lower court is free to preclude that issue from reaching the jury. See Commonwealth v. Mott, 234 Pa.Super. 52, 334 A.2d 771, allocatur denied (1975) (where court decides, as a matter of law, that entrapment is not an available defense, issue should not go to jury).