author: OLSZEWSKI, Judge: ROWLEY, Judge,

text:
    532 A.2d 836
    COMMONWEALTH of Pennsylvania, Appellee, v. James HUMPHEYS, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Submitted Feb. 17, 1987.
    Filed Aug. 24, 1987.
    Reargument Denied Nov. 6, 1987.
    Petition for Allowance of Appeal Denied March 14,1988.

      Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant (at 1492 and 1372).
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee (at 1492 and 1372).
    Before ROWLEY, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is a consolidated appeal from judgments of sentence imposed following appellant’s convictions at separate jury trials. The charges against appellant arose out of robberies which occurred on August 5, 1980 (appeal No. 1372 Pittsburgh 1986—CC 8007098A), and September 19, 1980 (appeal No. 1492 Pittsburgh 1985—CC 8007065A). Although appellant was tried separately on the indictments, he was represented at each trial by the same counsel. No post-verdict motions were filed and, during a consolidated sentencing proceeding, appellant was sentenced to two 10-to-20-year consecutive terms of imprisonment. A petition was brought pursuant to the Post-Conviction Hearing Act, and the court permitted appellant to file post-verdict motions nunc pro tunc. Consolidated post-verdict motions were filed and denied and the sentences were reinstated. This appeal was timely filed.

Appellant now raises numerous challenges to both convictions. For the sake of clarity, these challenges will be addressed as they relate to each appeal number. In regard to No. 1492, we find that appellant’s challenges are merit-less and, consequently, affirm the judgment of sentence. As to No. 1372, we are unable to determine from the record whether the court imposed sentence upon conviction of an offense which merged for purposes of sentencing. Accordingly, the judgment of sentence in No. 1372 is vacated and the case is remanded for resentencing.

I. Background

A. Appeal No. 1372

On August 5, 1980, appellant, while posing as a customer, entered the Douglas Funeral Home claiming that his brother had passed away. After conversing with the proprietor, Mr. Douglas, for one-half hour, appellant left only to return later that day. Upon his return, the proprietor’s wife escorted appellant to her husband’s office. The second meeting with Mr. Douglas lasted almost thirty minutes, after which time appellant drew a gun and demanded that Mr. Douglas hand over his money. Mr. Douglas grabbed for the gun and a scuffle ensued. With Mr. Douglas lying on the floor, appellant pointed the gun at him and demanded his wallet. Mr. Douglas gave appellant his wallet and the latter then demanded the victim’s watch and money. Having received these other items, appellant fled. Mr. Douglas immediately notified the police and, several weeks later, identified appellant from a photographic array.

Mrs. Douglas corroborated her husband’s testimony, positively identified appellant from a photo array, and made a positive in-court identification of appellant as the assailant.

Appellant was charged and convicted of one count each of robbery, 18 Pa.C.S.A. Sec. 3701(a)(l)(ii), and theft by receiving stolen property, 18 Pa.C.S.A. Sec. 3925. ¡

B. Appeal No. 1492

On September 19, 1980, William Foglia was working at Home Beer Distributing, a business which was owned by his friend, Gloria Amen. Mr. Foglia testified that appellant had been standing near the door of the distributorship for over ten minutes before requesting two cases of beer. Mr. Foglia went into the store and upon returning with the beer, he saw Ms. Amen handing money to appellant. Mr. Foglia then saw that appellant had a gun in his hand. Appellant then pointed the gun at Mr. Foglia and demanded his wallet. Mr. Foglia responded that he didn’t have a wallet. He did have $750.00 on him, but he never gave any of it to appellant. Appellant then escorted both witnesses into the cellar, locked the door, and left the premises.

Both Ms. Amen and Mr. Foglia made photographic and in-court identifications of appellant.

Appellant was subsequently charged and convicted of one count of robbery, 18 Pa.C.S.A. Sec. 3701(a)(l)(ii).

II. Allegations of Ineffectiveness

In challenging both convictions, appellant makes several claims attacking the performances of trial counsel. Our examination of counsel’s alleged ineffectiveness requires us first to determine whether the underlying claim is of arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). If the answer to that inquiry is in the affirmative, we must then determine whether the strategy chosen by counsel had a reasonable basis designed to effectuate the client’s interest. Id. Finally, the defendant must show that he was harmed or prejudiced by counsel’s ineffectiveness. Id. Should we determine that a claim has arguable merit but there has been no evidentiary hearing to determine if counsel had a reasonable basis for his actions, we will remand the case for an evidentiary hearing. Commonwealth v. Shablin, 362 Pa. Super. 289, 524 A.2d 511 (1987). Where it is clear, however, that the claim of ineffectiveness is meritless, there is no need to remand for a hearing. Id.

A. Alibi Defense

In both appeal No. 1492 and No. 1372, appellant raises a claim of ineffectiveness based upon trial counsel’s alleged failure to investigate his alibi defense. In support of this claim, he offers his statement made at the sentencing hearing:

During the time they said I was supposed to have robbed someone, I had been released from Central Pavilion Hospital. I had been robbed. I had contusions, bruised ribs. I wasn’t even allowed to sleep for two days. My wife still has the papers to prove it. I couldn’t even move around good. I still had bandages around me, and he wouldn’t produce it for me. I asked him to call witnesses. He wouldn’t call witnesses for me. Your Honor, all I’m saying is this: I didn’t rob those people.

(Notes of sentencing at 9.) At that same proceeding, appellant’s mother testified as follows:

I’m his mother, Judge McGregor, and he was, I can say, bandaged and bruised from being robbed himself the time that he was supposed to have robbed those people, and I gave (trial counsel) the proof, but he never used it. I gave him the papers. When he was in the Central Medical Pavilion up here being treated, I gave him those papers, but he never used it, and he was James’ lawyer at the time.

(Notes of sentencing at 10.) In short, appellant suggests that he, his mother, and possibly his wife could have presented an alibi defense.

In seeking to establish that counsel was ineffective for failing to call or investigate witnesses, appellant must demonstrate “(1) the names and whereabouts of these witnesses, (2) the substance of their testimony and (3) how they would have appreciably strengthened his defense. Moreover, ... (appellant must show) (4) that his trial counsel knew of the existence of the witnesses who purportedly should have been called.” Commonwealth v. Clemmons, 505 Pa. 356, 365, 479 A.2d 955, 959 (1984). See Commonwealth v. Mileshosky, 350 Pa.Super. 127, 133-34, 504 A.2d 278, 280-281 (1986), and cases cited therein; Commonwealth v. Polk, 347 Pa.Super. 265, 273, 500 A.2d 825, 829 (1985); Commonwealth v. Torres, 329 Pa.Super. 58, 68, 477 A.2d 1350, 1355 (1984).

Based upon the statements presented at the sentencing proceeding, appellant has not satisfied the requirements of Clemmons. Certainly, by stating that trial counsel was aware of the previously identified witnesses, appellant established two of the prerequisites. Neither appellant nor his mother indicated, however, the substance of the alibi defense and how their testimony would have been helpful to appellant’s case. Specifically, the statements of both fail to establish the whereabouts of appellant when the robberies occurred (appellant stated that he “had been released” from the hospital), or that he was physically incapable of committing the crimes (appellant stated he had “contusions, bruised ribs” while his mother stated he was “bandaged and bruised”). Even at this point in the proceedings, appellant fails to argue that the pursuit of an alibi defense would have been fruitful. Absent some basis for showing that the testimony would have been exculpatory, the statements fail to establish an alibi defense. See Commonwealth v. Pounds, 490 Pa. 621, 631, 417 A.2d 597, 602 (1980) (“(a)libi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.”) (citation and quotation omitted). Moreover, because appellant has failed to explain that the Clemmons requirements would be satisfied if given a hearing on the matter, this claim of ineffectiveness must be rejected. See Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981) (“Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective.”); Commonwealth v. Molina, 358 Pa.Super. 28, 516 A.2d 752 (1986) (failure to make proper and adequate allegations rendered ineffectiveness claim patently frivolous).

In support of his claim of ineffectiveness, appellant notes that our appellate courts have upheld claims of ineffectiveness where trial counsel failed to interview or investigate potential alibi witnesses. See Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976); Commonwealth v. McCaskill, 321 Pa.Super. 266, 468 A.2d 472 (1983). Appellant’s reliance on Mabie is misplaced. We have previously stated that:

(Mabie) should not be indiscriminately expanded to require defense counsel upon threat of being declared ineffective, to interview all conceivable witnesses irrespective of the nature or extent of their potential information. Trial counsel’s failure to interview potential witnesses will not be equated with ineffective assistance in the absence of a showing that his or her testimony would have advanced the fact finding process.

Commonwealth v. Wallace, 347 Pa.Super. 248, 500 A.2d 816, 818 (1985), quoting, Commonwealth v. Barren, 273 Pa.Super. 492, 498-499, 417 A.2d 1156, 1159 (1979). See Commonwealth v. Polk, 347 Pa.Super. 265, 274-75, 500 A.2d 825, 830 (1985) (distinguishing Mabie). Unlike the present case, the defendants in Mabie as well as McCaskill had presented a basis for a potentially meritorious alibi defense. Because appellant failed to substantiate or even allege a necessary factual basis in support of his alibi defense, we reject his claim of ineffectiveness.

B. Jury Charge—Robbery

Appellant’s next challenge to the convictions in both No. 1492 and No. 1372 is an attack on counsel’s alleged ineffectiveness for failing to object to the court’s incomplete and erroneous jury instructions regarding the offense of robbery. In both cases, appellant was charged with robbery, 18 Pa.C.S.A. Sec. 3701(a)(l)(ii), which provides as follows:

Sec. 3701. Robbery

(a) Offense defined.—

(1) A person is guilty of robbery if, in the course of committing a theft, he:
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;

At the trial in case No. 1372, the court issued the following instruction:

Defendant has been charged with the crime of robbery in which he threatened bodily injury. In order to find the Defendant guilty of this crime, you must find that each of the elements of the crime have been established beyond a reasonable doubt. There are two elements. One, that the Defendant threatened (the victim) with or intentionally put him in fear of immediate bodily injury. Bodily injury is the impairment of physical condition or substantial pain. A person acts intentionally when it is his conscious object to cause a particular result. Two, that the Defendant so acted in the course of committing a theft. An act is done in the course of committing a theft if it occurs while committing a theft, in an attempt to commit a theft, or in flight after committing or attempting to commit a theft.

(N.T. No. 1372, June 1-2, 1981 at 102-103). A substantially similar instruction was issued in case No. 1492. (N.T. No. 1492, June 3-4, 1981 at 128-129). The “theft” element was defined in neither instruction. Appellant claims that because theft is an essential element of robbery, trial counsel was ineffective for failing to object to the incomplete charges.

It appears settled that where an instruction is issued regarding the offense of robbery, the theft element must be defined for the jury. In Commonwealth v. Robinson, 284 Pa.Super. 152, 425 A.2d 748 (1980), this Court examined and discussed a similar charge:

The (trial) court charged:

“... Robbery is stealing under certain circumstances. If a victim has bodily injury inflicted upon him or is placed in fear of bodily injury during the theft, you have a robbery.”
The court, however, never defined theft. Thus, the jurors were ignorant of an element of the offense of robbery and could not properly convict appellant of robbery. Accordingly, we reverse appellant’s conviction for robbery.

Robinson, 284 Pa.Super. at 157, 425 A.2d at 750-751 (footnote omitted). Given the express holding of Robinson, we must conclude that appellant’s claim of ineffectiveness has arguable merit. Further, we can conceive of no reasonable basis (and none is offered) for counsel’s failure to object to the incomplete charge. Appellant is not, however, entitled to relief. The Robinson decision did not establish a per se rule of ineffectiveness. Rather, in order to obtain relief on a claim of ineffectiveness, the defendant must prove that counsel’s failure to object to an instruction was prejudicial to his case. Commonwealth v. Taylor, 362 Pa.Super. 408, 421, 524 A.2d 942, 949 (1987). See Buehl, 510 Pa. at 378, 508 A.2d at 1174. Appellant fails to argue or show that he was prejudiced by counsel’s omission. Our examination of the record likewise fails to indicate any prejudice to appellant as a result of counsel’s omission.

“Theft” is defined as “the unlawful taking of movable property of another with the intent to deprive him thereof.” 18 Pa.C.S.A. Sec. 3921. The jury was instructed that, pursuant to the robbery statute, “(a)n act shall be deemed ‘in the course of committing a theft’ if it occurs in an attempt to commit theft or in flight after the attempt or commission,” 18 Pa.C.S.A. Sec. 3701(a)(2). (N.T. No. 1492, June 3-4, 1981 at 129; N.T. No. 1372, June 1-2, 1981 at 103). In both cases, the juries heard compelling testimony that appellant, while wielding a handgun, obtained or attempted to obtain money and other items from the victims. Where the evidence clearly supports the omitted instruction, thereby leaving little room for speculation by the jury, this Court has held that the failure to define an element to the jury was not prejudicial error. See Commonwealth v. Ehrsam, 355 Pa.Super. 40, 59-60, 512 A.2d 1199, 1208-1209 (1986); Commonwealth v. Goins, 348 Pa.Super. 22, 501 A.2d 279 (1985); Commonwealth v. Mlinarich, 345 Pa.Super. 269, 287, 498 A.2d 395, 403-404 (1985) (en banc), allocatur granted, 512 Pa. 115, 516 A.2d 299 (1986). Cf. Commonwealth v. Waller, 322 Pa.Super. 11, 468 A.2d 1134 (1983) (clear misstatement of law was prejudicial). We add further that because the evidence clearly supports a finding of theft, appellant’s reliance on Robinson is undermined. A close reading of Robinson reveals that the evidence presented there was conflicting; contrary to the victim’s claim that the defendant had choked him in order to get his wallet, there was testimony that the defendant was separating the victim from another person who had attacked the victim. The crux of the matter in Robinson was whether a theft had even occurred; absent a precise definition of a theft, the jury was left to speculate in their decision making. Because there was an ample basis here which supports a finding of theft, we conclude that counsel’s failure to object to the incomplete charge was not prejudicial to appellant’s case.

C. Jury Charge—Burden of Proof

Appellant’s third challenge in case No. 1372 is an attack on counsel's failure to object to the jury charge on the burden of proof. However, appellant failed to preserve this claim in a written post-verdict motion and, consequently, it is waived. Pa.R.Crim.P. 1123(a): See Commonwealth v. Gravely, 486 Pa. 194, 198-99, 404 A.2d 1296, 1298 (1979); Commonwealth v. Beckham, 349 Pa.Super. 430, 433, 503 A.2d 443, 444 (1986).

We note parenthetically that this claim is meritless. At one point the trial court misstated the burden of proof and charged the jury to convict appellant even if they were “not satisfied beyond a reasonable doubt that the Defendant threatened George Douglas.” (N.T. No. 1372, June 1-2, 1981, at 103.) We have carefully examined the entire charge and are satisfied that the court subsequently cured its misstatement and clarified the burden of proof for the jury.

D. Jury Charge—Robbery

In case No. 1492, appellant challenges the performances of trial and post-trial counsel for failing to object to a jury charge which allegedly added two crimes not charged in the information. Specifically, appellant objects to the following excerpt from the charge:

If after considering all the evidence you find that the Commonwealth has established beyond a reasonable doubt all the elements which I have stated you should find the defendant guilty of robbery in which he threatened to inflict serious bodily injury. If you are not satisfied beyond a reasonable doubt that the defendant threatened to inflict serious bodily injury upon William Foglia and Gloria Amen, but are satisfied the Commonwealth has established beyond a reasonable doubt that the defendant inflicted bodily injury upon William Foglia and Gloria Amen, and that he did so while in the course of committing a theft you should find the defendant guilty of robbery in which he inflicted bodily injury.

(N.T. No. 1492 June 3-4, 1981, at 129) (emphasis added). Appellant asserts that the instruction authorized the jury to convict him of two additional crimes which were not charged in the information: (1) the robbery of Ms. Amen and (2) the robbery of Ms. Amen and Mr. Foglia pursuant to 18 Pa.C.S.A. Sec. 3701(a)(i)(i).

The information stated'as follows:

The actor, in the course of committing a theft, namely, taking $25.00 threatened William Foglia with immediate serious bodily injury or intentionally put that person in fear of serious bodily injury in violation of Section 3701(a)(l)(ii) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. Sec. 3701(a)(l)(ii).

The language of the information corresponds with a robbery provision, 18 Pa.C.S.A. Sec. 3701(a)(l)(ii). In view of the instruction, the information was expanded when the jury was given the above charge regarding 18 Pa.C.S.A. Sec. 3701(a)(l)(i). The error, however, was not fatal. In a similar case, the Supreme Court of Pennsylvania has held that a variance between the information and the jury charge was not prejudicial where the only evidence presented by the Commonwealth supported the charges listed in the information. Commonwealth v. Holcomb, 508 Pa. 425, 455-56, 498 A.2d 833, 848-849 (1985), cert. denied, 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349 (1986). In this case, the information apprised appellant of the robbery charge pursuant to subsection (a)(l)(ii), and appellant had an adequate opportunity to prepare a defense to that charge. The Commonwealth’s evidence proved only that charge; there was absolutely no evidence tending to prove that appellant inflicted bodily injury on Mr. Foglia or Ms. Amen pursuant to subsection (a)(1)(h). Given the total absence of evidence of bodily injury, appellant was not prejudiced by the issuance of the incorrect instruction.

III. Variance Between Information and Proof at Trial

In his attack on the robbery of the beer distributorship (No. 1492), appellant claims that the information varied from the proof offered at trial. The information stated as follows:

The actor, in the course of committing a theft, namely, taking $25.00 threatened William Foglia with immediate serious bodily injury or intentionally put that person in fear of serious bodily injury in violation of Section 3701(a)(1)(h) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. Sec. 3701(a)(1)(h).

Appellant notes that according to the Commonwealth’s evidence, he pointed the gun at Ms. Amen, who then handed him the money. The evidence also established that appellant pointed a gun at Mr. Foglia, who denied having a wallet and did not surrender any money to appellant. Appellant asserts that the Commonwealth proved he was guilty only of attempted robbery of Mr. Foglia, not robbery. Consequently, he argues, because the evidence at trial differed substantially from the language in the indictment, the evidence was insufficient to convict him of robbery.

Appellant’s argument has no basis in law or fact. Pursuant to the robbery statute, 18 Pa.C.S.A. Sec. 3701(a)(l)(ii), a person is guilty of robbery if, “in the course of committing a theft, he ... threatens another with or intentionally puts him in fear of immediate serious bodily injury.” “An act shall be deemed ‘in the course of committing a theft’ if it occurs in an attempt to commit theft.” 18 Pa.C.S.A. Sec. 3701(a)(2) (emphasis added). A criminal attempt is found where a person, while possessing the intent to commit a crime, does an act which constitutes a substantial step toward the commission of that crime. 18 Pa.C.S.A. Sec. 901(a). Appellant’s argument is undermined by these statutory provisions. Assuming appellant is correct in concluding that he is guilty of only attempted robbery, he, nonetheless, could be convicted for robbery in view of the express language of Sec. 3701(a)(2). A review of the record reveals more than adequate proof to sustain the conviction for robbery pursuant to that provision.

Viewed in a light most favorable to the Commonwealth, Commonwealth v. Peterkin, 511 Pa. 299, 306-07, 513 A.2d 373, 376 (1986), the evidence established the following. On September 18, 1980, Mr. Foglia was sitting outside of the beer distributorship which was owned by his friend, Ms. Amen. Appellant approached and asked for the price of some beer. Mr. Foglia went inside and appellant followed. Mr. Foglia went to another part of the room to get the beer and, upon his return, saw Ms. Amen giving money to appellant while appellant pointed a gun at her. Appellant then pointed the gun at Mr. Foglia and ordered him to hand over his wallet. Mr. Foglia stated that he had no wallet. At gunpoint, appellant ordered the victims to walk to the cellar. While pointing the gun at Mr. Foglia’s back, appellant again demanded his wallet. Mr. Foglia again denied having a wallet. Appellant then locked the victims in the cellar. (N.T. No. 1492 June 3-4, 1981 at 24-35.) During the course of this incident, appellant forced Ms. Amen to give him $25.00 from the cash drawer. (N.T. 66-67.)

We have no doubt that the evidence is more than sufficient to support the robbery conviction. Appellant repeatedly pointed the gun at Mr. Foglia and demanded his wallet. These acts, beyond doubt, put Mr. Foglia in fear of immediate serious bodily injury. The substantial-step requirement was satisfied by the armed demand for the victim’s wallet. “Neither the fact that (appellant) did not inflict bodily injury nor that (appellant was) unsuccessful in obtaining the victim’s money was controlling. An aggressive act intended to place the victim in fear that he was in danger of immediate physical harm was sufficient to elevate an attempted theft to robbery.” Commonwealth v. Leatherbury, 326 Pa.Super. 179, 184, 473 A.2d 1040, 1042 (1984).

Nor do we find that the proof at trial varied substantially from the information. Appellant was charged with and had notice to defend one count of robbery pursuant to 18 Pa.C.S.A. Sec. 3701(a)(l)(ii). It was clear that the charge arose from the incident at the beer distributorship. Being bound to that charge, the Commonwealth presented proof at trial which solely supported that statutory provision. Contrary to appellant’s assertions, the Commonwealth did not deviate from its initial position; the proof was consistent with the information.

IV. Sentencing

In case No. 1372, appellant was charged with and convicted of robbery and theft by receiving stolen property. In imposing sentence, the court stated:

THE COURT: Mr. Humphrey, at Information No. 8007065A (No. 1372), it will be the sentence of this Court that you pay the costs of prosecution, that you serve a term of ten to twenty years at the State Correctional Institution in Pittsburgh. Such term is to run consecutive to any term you are now serving or will serve. If you are incarcerated on any charge of mine, we will give you credit on that charge.

(Notes of sentencing, November 10, 1981, at 10). After stating the reasons for the sentence imposed, the court then sentenced appellant on the other information, case No. 1492. Appellant claims that because the crime of theft by receiving merged for sentencing purposes with the crime of robbery, the sentence is illegal. Both appellant and the Commonwealth agree that the offense of theft by receiving stolen property and the offense of robbery merge for purposes of sentencing. See Commonwealth v. Yancey, 301 Pa.Super. 427, 447 A.2d 1041 (1982); Commonwealth v. Dabrowski, 296 Pa.Super. 515, 442 A.2d 1170 (1982). We, however, are not inclined to summarily decide this matter based upon those cases. Subsequent to Yancey and Dabrowski, a two-pronged test for determining the merger of offenses has been adopted by our appellate courts:

(T)o determine whether merger should occur, a court must first determine whether the separate statutory offenses arose out of the same criminal act, transaction or episode. When courts decide under the merger doctrine that two crimes “necessarily involve” one another, it does not always mean that all the elements of one crime are included in the other. It means that on the facts of the case the two crimes were so intimately bound up in the same wrongful act that as a practical matter, proof of one crime necessarily proves the other, so that they must be treated as the same offense. Commonwealth v. Williams, supra [344 Pa.Super. 108] at 125, 496 A.2d [31] at 40 [1985].
If the criminal conduct arose out of a single criminal act, then the court must determine whether the statutes defining the crimes charged were directed to substantially the same harm or evil. Commonwealth v. Williams, id,., 344 Pa.Superior Ct. at 127, 496 A.2d at 42. Therefore, even if the criminal conduct consisted of only a single criminal act, the separate statutory offenses do not merge if the Commonwealth has substantially different interests at stake and each is injured by the defendant’s single act. Summarized, the proper rule of merger is that “an individual can be punished only once for a single act which causes only injury to the Commonwealth.” Commonwealth v. Williams, supra, 344 Pa.Superior Ct. at 138, 496 A.2d at 47, quoting Commonwealth v. Schilling, 288 Pa.Superior Ct. 359, 370, 431 A.2d 1088, 1093 (1981).
The test for merger, as stated above, is a “flexible, fact-based tool for determining how many offenses against the Commonwealth have actually been committed ... (T)he question of merger will often turn on an appraisal of the precise facts of the case.” Commonwealth v. Williams, supra [344 Pa.Super.] at 143, 496 A.2d at 50.

Commonwealth v. Taylor, 362 Pa.Super. 408, 418, 524 A.2d 942, 946-47 (1987) (footnote omitted). See Commonwealth v. Williams, 514 Pa. 124, 522 A.2d 1095 (1987) (citing with approval and adopting the test set forth in Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985)).

In the case before us, we have no doubt that the robbery and the theft by receiving stolen property occurred in the same criminal episode. The testimony established that while pointing a handgun at Mr. Douglas, appellant demanded and received the victim’s wallet, watch and money. The victim’s driver’s license and credit cards were in his wallet. When appellant was placed in custody, Mr. Douglas’s credit cards, driver’s license and watch were found in his possession. Because appellant initially obtained those items after having placed Mr. Douglas in fear of injury, both offenses constituted the same criminal act. In short, we find that this case fits the classic definition of robbery in that the theft was a necessary part of the robbery. See 18 Pa.C.S.A. Sec. 3701(a) (robbery occurs “in the course of commiting a theft”).

The determination that both offenses constituted the same criminal act does not, however, end our inquiry. “(E)ven if the two crimes necessarily involve one another, they do not merge if there are substantially different interests of the Commonwealth at stake and the defendant’s act has injured each interest.” Commonwealth v. Williams, supra, 514 Pa. at 135, 522 A.2d at 1101. The legislature has chosen to classify both robbery and theft by receiving stolen property as offenses against property. Although the victim in this case was physically assaulted, we believe that, under these facts, the legislature intended to protect the same governmental interest, i.e., the property rights of its citizens. Accordingly, we conclude that because the theft was a part and parcel of the robbery, appellant’s conviction for theft by receiving stolen property was subsumed into the robbery for sentencing purposes.

Having found that the convictions have merged, we turn to the specifics of this case. We have carefully searched the record, including the transcripts, and are unable to determine the charge or charges for which this sentence was imposed. We note, however, that appellant was sentenced to identical terms of imprisonment for the conviction in No. 1492 (robbery), and the conviction in this case, No. 1372 (robbery and theft by receiving stolen property). The Commonwealth argues that since the terms of imprisonment in both cases are identical, the trial court must have imposed sentence in No. 1372 on the robbery, not the theft, conviction. Given the absence of any statement by the trial court in this regard, we are not so convinced. Accordingly, we are constrained to remand for reconsideration of the sentence.

V. Conclusion

Judgment of sentence is affirmed in appeal No. 1492. In appeal No. 1372, judgment of sentence is vacated and the case is remanded for resentencing. Jurisdiction is relinquished.

ROWLEY, J., files a concurring and dissenting statement.

ROWLEY, Judge,

concurring and dissenting:

I would affirm the judgment of sentence at No. 1372 Pittsburgh, 1986 and reverse and remand for a new trial at No. 1492 Pittsburgh, 1985.

      . The Robinson Court did not examine the potential prejudice to the defendant due to counsel’s omission.

      . In regard to the conviction in No. 1372, we note an additional ground for denying appellant’s request for relief. In that case, appellant was charged and convicted of both robbery and theft by receiving stolen property.
      After instructing the jury as to the robbery charge in case No. 1372, the court instructed the jury as to the crime of theft by receiving stolen property. We have carefully examined that instruction and conclude that the charge, as a whole, adequately and accurately defined a "theft” as it relates to the crime of robbery. The jury obviously understood the nature of the offense as it convicted appellant of theft by receiving. Accordingly, the failure to object to the charge defining robbery could not have been prejudicial to appellant.

      . This claim was not raised in a post-verdict motion. Our review of the merits is not precluded, however, as appellant raises this claim by attacking the performance of both trial counsel and post-verdict counsel. Nor is review on the merits precluded because appellant is represented in this appeal by post-verdict motions counsel. See Commonwealth v. McBee, 513 Pa. 255, 520 A.2d 10 (1986) (remand for appointment of new counsel not required where it is clear the claim of ineffectiveness is meritless).

      . That section provides:
      (1) a person is guilty of robbery if, in the course of committing a theft, he:
      (i) inflicts serious bodily injury upon another;
      18 Pa.C.S.A. Sec. 3701(a)(l)(i).

      . Appellant’s reliance on Commonwealth v. Baranyai, 278 Pa.Super. 83, 419 A.2d 1368 (1980) is misplaced. In Baranyai, it was impossible to determine the number of offenses charged by the information. Id.., 278 Pa.Super. at 92, 419 A.2d at 1372. The information in this case clearly put appellant on notice that he was charged with one count of robbery.

      . Because the legality of the sentence is in issue, this appeal is of right pursuant to 42 Pa.C.S.A. Sec. 9781(a). Consequently, we are not precluded from reviewing the merits of appellant's claim. See Commonwealth v. Tuladziecki, 513 Pa. 508, 511, 522 A.2d 17, 19 (1987). We note also that a challenge to the legality of a sentence is not waived despite appellant’s failure to file a motion to modify the sentence. See Commonwealth v. Adams, 350 Pa.Super. 506, 504 A.2d 1264 (1986).

      . The merger rule must be applied in a flexible, not a mechanical, fashion. Taylor, supra, 362 Pa.Super. at 420, 524 A.2d at 948. As an indication of this flexible approach, this Court has stated that "the robbery statute more specifically intends to punish those who threaten violence or resort to violent means in order to accomplish their goal of theft.” Taylor, supra, 362 Pa.Superior Ct. at 420, 524 A.2d at 948. Concluding that robbery and aggravated assault charges did not merge for sentencing purposes, the Taylor Court upheld separate sentences imposed for those offenses.


source: Caselaw Access Project

author: KELLY, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    532 A.2d 845
    COMMONWEALTH of Pennsylvania v. Kenneth ALLEM, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1986.
    Filed Oct. 13, 1987.

      Michael Yanoff, Lansdale, for appellant.
    Andrew Demarest, Assistant District Attorney, Doylestown, for Com.
    Before McEWEN, DEL SOLE and KELLY, JJ.
   KELLY, Judge:

This case involves an appeal from an order granting the Commonwealth’s motion for temporary assignment of issuing authority to a judge of the court of common pleas. We affirm.

On January 10, 1986, a complaint was filed with District Justice J. Robert Hunsicker charging appellant with corruption of minors (18 Pa.C.S.A. § 6301), indecent assault (18 Pa.C.S.A. § 3126), and indecent exposure (18 Pa.C.S.A. § 3127) relating to events occurring from the summer of 1983 until February 7, 1984. The district justice found probable cause and authorized the issuance of a warrant the same day. A preliminary hearing was scheduled for February 13, 1986. However, neither the affiant, Detective Stephen Battershell, nor any of the Commonwealth’s witnesses appeared for the hearing. District Justice Hunsicker called the detective to determine why he had not appeared. Detective Battershell explained that he had confused the dates of the preliminary hearing and asked that he be granted a continuance. District Magistrate Hunsicker, however, dismissed the complaint and discharged the appellant.

On February 26, 1986, Detective Battershell refiled the criminal complaint against appellant. District Justice Hun-sicker again found probable cause for issuance of process and a summons was issued that day. However, before a preliminary hearing could be held, the Commonwealth filed a motion to have a judge of the Court of Common Pleas temporarily assigned as issuing authority to conduct the preliminary hearing in the instant case. Appellant was served with the written motion and filed a written answer. An informal hearing on the motion was held on March 13, 1986, during which oral argument was presented by counsel. The motion was granted by order of the Honorable Isaac S. Garb, President Judge, on March 17, 1986. Notice of appeal was filed on March 21, 1986.

On April 9, 1986, President Judge Garb filed a Memorandum Opinion in support of the order which explained:

At the hearing on the ‘change of venue’ application, it became apparent that there was a disagreement between the Commonwealth and the defendant as to the basis for the discharge by the District Justice. The Commonwealth contended that the discharge was effected based upon the application of the two year statute of limitations. The defense contended that the discharge was based upon the failure of the Commonwealth to present any evidence. Conceivably, although we cannot be sure, the reason for the discharge might have some effect on the question of whether the Commonwealth can refile the complaint and rearrest the defendant. By the same token, there may very well be various circumstances why the statute of limitations may not have run merely by the lapse of two years from the date of the alleged offense. See the Act of April 28, 1978, P.L. 202, No. 53, 42 Pa.C.S.A. 5554.
In view of the possible uncertainty regarding the reasons for the discharge, it occurred to us that the District Justice may be required to testify at a preliminary hearing. That being the case, we determined that the interests of justice would dictate that the hearing be held before someone other than the original committing magistrate. For purposes of convenience, it made sense to assign it to a Judge of this Court rather than another District Justice.
The primary reason for our order, however, was concern for the young victim. If the statute of limitations is a bar to further prosecution, then we can see nothing to be gained but perhaps a great deal to be lost by requiring this victim to testify in vain. Therefore, we deemed it appropriate to retain the matter here so that the question of the statute of limitations can be explored and perhaps decided without the necessity of holding a full scale preliminary hearing on the merits.

Trial Court Opinion at 2-3.

On appeal, appellant contends that the Commonwealth failed to establish any reason why a hearing before District Justice Hunsicker would not result in a fair and impartial proceeding and that the trial court erred in granting the motion. We agree that the reasons stated by the common pleas court are inadequate to sustain the order. Nonetheless, “[a] ruling or decision of a lower court will be affirmed if it can be supported on any basis despite the lower court’s assignment of a wrong reason.” Commonwealth v. Terry, 513 Pa. 381, 402, 521 A.2d 398, 409 (1987), citing Sherwood v. Elgart, 383 Pa. 110, 177 A.2d 899 (1955). Because we find the order properly sustainable on alternate grounds, we affirm the order.

I.

The common pleas court states two reasons for its decision to grant the order: 1) that the district justice might be required to testify at the preliminary hearing; and 2) that by retaining the matter before the Court of Common Pleas the statute of limitations issue could be resolved first, possibly eliminating the need for the alleged child victim to be subjected to pointless questioning. Neither of the reasons stated provides a proper or adequate basis to sustain the order.

A.

Ordinarily, the decision of an issuing authority to dismiss a complaint is deemed interlocutory, and the Commonwealth’s sole avenue of redress is to bring the matter before another issuing authority before the statute of limitations period expires. Commonwealth v. Genovese, 493 Pa. 65, 69 n. 7, 425 A.2d 367, 369 n. 7 (1981); Commonwealth v. Hetherington, 460 Pa. 17, 21-22, 331 A.2d 205, 208 (1975); Riggins Case, 435 Pa. 321, 323, 254 A.2d 616, 617 (1969); McNair’s Petition, 324 Pa. 48, 54, 187 A. 498, 501 (1936). The doctrines of collateral estoppel, res judicata, law of the case, and stare decisis have no operation in such proceedings; rather, the matter is heard de novo. In Commonwealth v. Prado, 481 Pa. 485, 488, 393 A.2d 8, 10 (1978), however, our Supreme Court held that an issuing authority’s decision to dismiss a complaint was appealable when, under the applicable local rules, review of the complaint by another issuing authority was not available.

Together, the right to de novo review and the right to a direct appeal when de novo review is not available provide full and adequate means for the Commonwealth to seek redress from an allegedly erroneous determination by an issuing authority to dismiss a complaint. Consequently, we see no reason to permit the Commonwealth to attack the order dismissing the original complaint collaterally in proceedings on the refiled complaint by subjecting the district justice to a subpoena and the unseemly spectacle of cross-examination as to the basis of his decision to dismiss the original complaint.

Moreover, in the instant case, District Justice Hun-sicker permitted the complaint to be refiled, summons to be issued, and a preliminary hearing to be scheduled. Because de novo review of the complaint is available in the instant case, any error in the original proceedings is rendered moot. See Commonwealth v. Genovese, supra; Commonwealth v. Hetherington, supra; Riggins Case, supra; McNair’s Petition, supra. Thus, the district justice may not be subpoenaed to testify regarding matters which have been rendered moot, and therefore irrelevant.

B.

The common pleas court also indicated that assignment of a judge of the court of common pleas was necessary in order that the statute of limitations issue could be resolved prior to requiring the alleged child victim to testify at the preliminary hearing. Appellant contends that:

The Commonwealth is dissatisfied with the initial disposition of the charges and, now that the statute of limitations period has run, the District Attorney is attempting to circumvent the standard preliminary hearing procedure in the hope that this will cure the previous neglect of prosecution.

(Appellant’s Brief at 8). (Emphasis added). As noted previously, a refiled complaint must be filed within the limitations period. See Commonwealth v. Hetherington, supra, 331 A.2d at 208. However, we find that the face of the record establishes that at least some of the criminal acts upon which the complaint is predicated occurred within the limitations period, and that de novo review of the complaint is appropriate. However, because some of the acts alleged in the probable cause affidavit may have occurred outside the limitations period, it will be necessary for the issuing authority assigned to determine the precise cut-off date for the limitations period.

In determining when the limitations cut-off date should be fixed, the issuing authority should inquire as to whether the statute has been tolled for any additional periods of time. See 42 Pa.C.S.A. § 5554.

We agree that statute of limitations issues should be resolved before a child victim or witness is required to go through the ordeal of testifying at a preliminary hearing. See generally Myers, The Legal Response to Child Abuse, 24 Fam.L.J. 149, 182-84 & nn. 109-112 (1986) (discussing the need to minimize trauma caused by pre-trial procedure); Arther, Child Sexual Abuse, Vol. 37, No. 2, Juv. & Fam. Ct.J. 1, 30-31 (1986) (same). The common pleas court’s concern for the welfare of the alleged child victim is laudable, and reflects the strides which the courts and the legislature have taken with respect to the special problems and concerns which child sexual abuse cases present. See e.g. 42 Pa.C.S.A. § 5981 et. seq.; 42 Pa.C.S.A. § 5554(3). Nonetheless, we find no reason why the district justice assigned could not have resolved the statute of limitations issue. Consequently, we find this concern to be an inadequate basis upon which to sustain a Pa.R.Crim.P. 23(d) motion.

II.

Nonetheless, we find the order properly sustainable on alternate grounds. We find that reassignment of the case was appropriate to promote the efficient administration of justice by insuring prompt de novo review of the refiled complaint by a different issuing authority. We find further that to the extent that Pa.R.Crim.P. 23(d) may require “reasonable notice and an opportunity to defend” in such cases, the procedures followed were more than adequate. Accordingly, we affirm the order.

Initially, we note that judges of the court of common pleas are clearly empowered to sit as issuing authorities. Pursuant to 42 Pa.C.S.A. § 912, “[ejvery judge of a court of common pleas shall have all the power of a judge or a district justice of the minor judiciary.” An “issuing authority” is defined as “any public official having the power and authority of an alderman, justice of the peace, magistrate, or district justice.” Pa.R.Crim.P. 3(j). Thus, judges of the courts of common pleas have concurrent jurisdiction as issuing authorities with the district justices of each magisterial district within their judicial districts. See Commonwealth v. Ritter, 268 Pa.Super. 563, 566, 408 A.2d 1146, 1147 (1979); 42 Pa.C.S.A. § 931(b). Indeed, in Riggins Case, supra, our Supreme Court noted:

Although McNair’s Petition, supra, allows a rearrested defendant to be taken before any other officer empowered to hold preliminary hearings, the practice where the original officer is a lay magistrate is to take the case before a judge of a court of record the second time.

Riggins Case, supra, 254 A.2d at 618 n. 3.

The question instantly, then, is not whether a judge of the court of common pleas could properly conduct the preliminary hearing on the refiled complaint; but, whether the president judge had the authority to reassign the instant case from District Justice Hunsicker to a judge of the court of common pleas. We find that the president judge had such authority.

Under 42 Pa.C.S.A. § 325(e), the president judge of a court of common pleas is designated as the executive and administrative head of the court of common pleas and is specifically empowered to make all judicial assignments. This grant clearly includes the authority to assign a judge of the court of common pleas as issuing authority to conduct a preliminary hearing. Under Rule 17 of the Rules Governing Standards of Conduct of District Justices, “[t]he president judge of the court of common pleas of a judicial district shall exercise general supervision and administrative control over district justices within his judicial district.” Furthermore, under Pa.R.Crim.P. 23:

The president judge may assign temporarily the issuing authority of any magisterial district to serve another magisterial district whenever such assignment is needed to satisfy the requirements of paragraph (a) [twenty-four hour availability], to insure fair and impartial proceedings, or otherwise for the efficient administration of justice____

The powers of a president judge of a court of common pleas over the assignment of issuing authorities are plenary. The only express limitation of a president judge’s discretion with regard to the assignment of issuing authorities is the requirement that when a party makes a motion pursuant to Pa.R.A.P. 23(d) requesting temporary assignment to insure fair and impartial proceedings, “[Reasonable notice and an opportunity to defend shall be provided to the parties.”

In Commonwealth v. McAndrew, 361 Pa.Super. 60, 521 A.2d 472 (1987), this Court found that a motion containing allegations that assignment of another issuing authority was necessary “to insure fair and impartial proceedings” because the assigned district justice “had a predisposition to dismiss the complaint” and because the district justice was “unable to comprehend the complex factual and legal issues involved” was the equivalent of a motion for recusal of an issuing authority. 361 Pa.Superior Ct. at 63, 521 A.2d at 473-74. The McAndrew panel then reasoned that when “fabricated, frivolous, or scurrilous charges” are raised against an issuing authority no hearing is needed, but that if the charges have arguable merit, a formal hearing with sworn testimony is required. Id.

In McAndrew, the Commonwealth based its motion upon grounds which, in fairness to the issuing authority, required application of formal recusal procedures. However, because no such allegations were made in the instant case, we find no reason to require application of the same procedures. The Commonwealth’s petition in the instant case merely recited the procedural history of the case and requested assignment of a judge of the court of common pleas as issuing authority. Because the record plainly indicates that a preliminary hearing had been scheduled before the issuing authority who had previously dismissed the refiled complaint, we find that reassignment was appropriate to promote the efficient administration of justice by insuring prompt de novo review of the refiled complaint.

Although matters would be less complicated if the Commonwealth had simply presented the complaint to a judge of the court of common pleas to be refiled, we do not find that presentation of the complaint to the original issuing authority for refiling waives the right to de novo review of the refiled complaint by a different issuing authority. There is no reason why the issuance of process and the conduct of a preliminary hearing must be performed by the same judicial officer. On the other hand, there is a very good reason to permit the Commonwealth to present the complaint to the original issuing authority for refiling without prejudice to the Commonwealth’s right to seek de novo review of the refiled complaint. Issuance of warrant or summons tolls the running of the statute of limitations. See 42 Pa.C.S.A. § 5552(e). By permitting the complaint to be refiled before the original issuing authority without prejudice to the Commonwealth’s right to seek reassignment to a different issuing authority for de novo review of the refiled complaint, the potential for undue prejudice to the Commonwealth resulting from the limited accessibility of issuing authorities other than the originally assigned issuing authority is reduced. Cf Pa.R.Crim.P. 23(a).

Finally, to the extent that Pa.R.Crim.P. 23(d) may be construed to require “notice and an opportunity to defend” whenever a party moves for temporary assignment of a different issuing authority, we find that the procedures followed in the instant case—the filing and service of the written motion and answer, and allowance of oral argument—were more than adequate to meet such a requirement. We see no reason to extend the requirement of a formal hearing (announced in McAndrew, supra) beyond the narrow context of a motion for temporary assignment of issuing authority to insure fair and impartial proceedings predicated upon allegations which impugn the character or competence of the assigned issuing authority and which seek the recusal of the assigned issuing authority.

CONCLUSION

Based upon the foregoing, the Order is affirmed.

DEL SOLE, J., files a concurring and dissenting opinion.

DEL SOLE, Judge,

concurring and dissenting:

I concur with the Majority’s discussion of the Statute of Limitations. I respectfully dissent from the Majority’s affirmation of the trial court order granting the Commonwealth’s motion for temporary assignment of issuing authority to a judge of the court of common pleas.

I am in agreement that the question at hand is whether the president judge had the authority to reassign the instant case from District Justice Hunsicker to a judge of the court of common pleas. In light of the facts of this case I find that the president judge did not have such authority. The case at bar came about through a motion procedure. Pa.R.Crim.P. 23(d) states:

A motion may be filed requesting a temporary assignment under paragraph (b) on the ground that the assignment is needed to insure fair and impartial proceedings. Reasonable notice and opportunity to respond shall be provided to the parties.

The Majority finds that the president judge had the authority to reassign the case even though the moving party herein did not allege in their motion any way that assignment of another issuing authority was necessary “to insure fair and impartial proceedings”.

In Commonwealth v. McAndrew, 361 Pa.Super. 60, 521 A.2d 472 (1987), this Court interpreted Pa.R.Crim.P. 23(d) in a case where, as in the present matter, a motion for temporary assignment had been filed. The court in McAndrew relied on the following comment to Rule 23:

The motion procedure of paragraph (d) is intended only to apply when a party requests temporary assignment to insure fair and impartial proceedings. The president judge, may of course, order a response and schedule a hearing with regard to such motion.

Id., 361 Pa.Superior Ct. at 63, 521 A.2d at 473, 474. The McAndrew court interpreted this comment to mean that a petition wholly without foundation may be dismissed without a hearing. Id., 361 Pa.Superior Ct. at 64, 521 A.2d at 474.

In the immediate matter, the Commonwealth’s motion for a court of common pleas judge was merely a recitation of the procedural posture of the case; no explanation was given for the request. As the court stated in McAndrew, a petition for temporary assignment in a specific case is analogous to recusal. The party seeking to have a judge removed “bears the burden of producing evidence of establishing bias, prejudice, or unfairness necessitating the recusal, and failure to adduce competent evidence will result in a denial of the recusal motion”. Id. at 361 Pa.Superior Ct. 64, 521 A.2d 474. The Commonwealth’s petition herein was wholly without foundation in that it did not assert any manner in which its case would have been prejudiced if it had remained before Justice Hunsicker and therefore it should have been denied.

I agree with the Majority’s position that as long as the statute of limitations period has not expired, the Commonwealth has a right to a de novo review of a refiled complaint before another judicial officer. However, this case is distinguishable from cases in which the Commonwealth is seeking a new hearing before another issuing authority after the case has been disposed of by the initial judge. Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981), Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975), Riggins Case, 435 Pa. 321, 254 A.2d 616 (1969), and McNair’s Petition, 324 Pa. 48,187 A. 498 (1936). In the immediate matter, the Commonwealth is seeking a new hearing before another issuing authority while in the midst of preliminary proceedings before District Justice Hunsicker. The Commonwealth is seeking to replace the present issuing authority, as opposed to beginning the hearing process anew. If a judge could be removed at this stage of the proceedings, without cause shown “the purpose of our independent judiciary would be frustrated”. Commonwealth v. McAndrew, supra, 361 Pa.Superior Ct. at 64, 521 A.2d at 474.

I disagree with the implication of the Majority’s position that a president judge would be empowered to make the reassignment sua sponte, notwithstanding an improper motion by the Commonwealth requesting such reassignment. My interpretation of the following section of the comment following Rule 23 is pertinent to the discussion:

The motion procedure is not intended to apply in any of the many other situations in which president judges make temporary assignments of issuing authorities; in all these other situations the president judges may make temporary assignments on their own without any motion, notice, response, or hearing.

This comment, which permits president judges to make temporary assignment of issuing authorities without a motion or hearing, addresses situations unlike the present one. The comment would apply to an instance where assignment was necessary to replace a district justice due to illness or due to the unavailability of a justice. It would not apply to an instance of removal of a particular justice from a particular case at the request of a party. To suggest otherwise would promote “judge shopping”.

For all of the aforementioned reasons. I would have denied the Commonwealth’s motion for temporary assignment of a Court of Common Pleas issuing authority absent a hearing.

      . "Issuing authority" is defined at Pa.R.Crim.P. 3(j):
      Issuing authority is any public official having the power and authority of an alderman, justice of the peace, magistrate or district justice.

        Cf. 42 Pa.C.S.A. § 102.

      . Prosecutions for corruption of minors, indecent assault and indecent exposure must commence within two years of the date of the offense. 42 Pa.C.S.A. § 5552(a). A prosecution is commenced when a warrant or summons is issued, if such warrant, summons, or citation is executed without unreasonable delay. 42 Pa.C.S.A. § 5552(e); see Commonwealth v. Kimble, 323 Pa.Super. 499, 508-09 & n. 11, 470 A.2d 1369, 1374 & n. 11 (1984) (en banc). For convenience and clarity we calculate the running of the statute of limitations backwards from the issuance of process on the instant complaint to determine which of the acts alleged in the complaint occurred within the limitations period.
      A summons was issued on the instant complaint on February 26, 1986. Thus, the two year statute of limitations cut-off date would be February 26, 1984. However, during the pendency of the proceeding on the original complaint the statute of limitations was tolled. 42 Pa.C.S.A. § 5554(2). The proceedings on the original complaint were commenced when a warrant was issued on January 10, 1986, and terminated on February 3, 1986, when the complaint was dismissed. Therefore, the cut-off date must be adjusted by thirty-four (34) days to January 24, 1984.
      The affidavit of probable cause, upon which the instant complaint was issued, alleged that the offenses arose from criminal acts which were "on-going from the summer of 1983 until February 7, 1984.” Thus, some of the acts alleged occurred within the limitations period (those committed between January 24, 1984 and February 7, 1984). However, some of the acts may have been committed outside the limitations period (those committed between the summer of 1983 and January 23, 1984).

      . Criminal liability may not be imposed upon acts committed outside the limitations period. 42 Pa.C.S.A. § 5552. However, evidence of criminal acts committed' outside the limitations period might be admissible to corroborate evidence of criminal acts occurring within the limitations period. See Commonwealth v. Claypool, 508 Pa. 198, 204 & n. 2, 495 A.2d 176, 178-79 & n. 2 (1985), citing, McCormick, Evidence, § 190 at 449 (2nd Ed. 1972); see also Commonwealth v. Rodriguez, 343 Pa.Super. 486, 493-94, 495 A.2d 569, 573 (1985).
      We note further that once the limitations cut-off date is determined the complaint should be amended to exclude allegations relating to acts committed outside the limitations period. Pa.R.Crim.P. 150; Pa.R.Crim.P. 225(b)(3); Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980) (the information must allege the date of the offense or an allegation that the offense was committed on or about any date within the period fixed by the statute of limitations).

      . Because this case involves charges of sexual child abuse by the victim’s stepfather, due consideration should be paid to 42 Pa.C.S.A. § 5554(3) which provides in pertinent part:
      ... the period of limitations does not run dining any time when: (3) a child is under 18 years of age, where the crime involves injuries to the person of the child caused by the wrongful act, or neglect, or unlawful violence, or negligence by the child’s parents or by a person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child’s parent.
      (Amended July 10, 1985, effective 60 days thereafter). We do not decide here what, if any, effect this provision may have on the instant case.

      . We emphasize that the controlling distinction between the situation in McAndrew, supra, and the instant case is the grounds specified in the motions for reassignment. The grounds alleged in McAndrew regarding the need to recuse the assigned issuing authority clearly required proof in a formal hearing; on the other hand, the grounds in the instant case regarding the need for reassignment to provide de novo review of the refiled complaint appear on the face of the record and require no further proof. We note that, in McAndrew, had the Commonwealth merely claimed its right to de novo review of the refiled complaint by a different issuing authority without asserting grounds to recuse the original issuing authority, temporary assignment could properly have been granted.


author: DEL SOLE, Judge:

text:
    532 A.2d 853
    COMMONWEALTH of Pennsylvania v. James LONG, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 15, 1987.
    Filed Oct. 15, 1987.

      Eric L. Lilian, Philadelphia, for appellant.
    Donna G. Zucker, Stuart Wilder, Assistant District Attorneys, Philadelphia, for Com.
    Before DEL SOLE, MONTEMURO and HESTER, JJ.
   DEL SOLE, Judge:

This is a direct appeal from the Judgment of Sentence imposed following Appellant’s conviction of robbery and conspiracy. Numerous instances of trial court and trial counsel error are alleged by Appellant to be sufficient reasons for this court to rule that he be discharged or awarded a new trial. After a careful examination of Appellant’s contentions, we conclude they are without merit and we affirm the Judgment of Sentence.

Initially, Appellant submits that the trial court erred by granting the Commonwealth’s Petition to Extend and by denying his Motion to Dismiss under Rule 1100 of the Rules of Criminal Procedure. In considering whether an extension of time was properly given, it must be determined whether the trial could not be commenced within 180 days despite the Commonwealth’s due diligence; and, whether the trial was scheduled for the earliest possible date consistent with the court’s business. Commonwealth v. Fortune, 346 Pa.Super. 465, 467, 499 A.2d 1094, 1095 (1985). To aid in making such a determination we must remain mindful that it is the Commonwealth’s duty to meet this burden of proof by a preponderance of the evidence. Commonwealth v. Lamb, 309 Pa.Super. 415, 423, 455 A.2d 678, 682 (1983). Further, the decision by the trial judge to permit the Commonwealth a time extension is discretionary. Absent an abuse of such discretion we shall not disturb the trial judge’s ruling. Commonwealth v. Lohr, 503 Pa. 130, 139-140, 468 A.2d 1375, 1380 (1983).

Appellant, herein, notes that his trial was continued “for reasons attributable entirely to co-defendant or his counsel”. He also acknowledges that his trial was rescheduled to “the earliest possible date” and that later delays were necessitated because the court was in the midst of another jury trial. Appellant’s only argument with respect to the delay in bringing him to trial is that the Commonwealth, by opposing his motion to sever his case from his co-defendant’s, failed to demonstrate due diligence. In support of this argument Appellant cites cases which deal with the computation of time under Rule 1100 and which hold that a period of exclusion will not be recognized for delay caused by the unavailability of a co-defendant or his counsel. See: Commonwealth v. Hagans, 482 Pa. 572, 577, 394 A.2d 470, 472 (1978). It has been held that periods of delay caused by co-defendants and/or their counsel may not normally be excluded from the computation of the prescribed period under Rule 1100(d). Commonwealth v. Hamm, 325 Pa.Super. 401, 473 A.2d 128 (1984). (citations omitted). Appellant, however, has overlooked the line of cases which find that delays caused by co-defendant and/or their counsel may constitute sufficient grounds for an extension of time for trial under Rule 1100(c). Id. (citations omitted).

In the instant case, the trial judge noted that Appellant and his co-defendant were charged with conspiracy and a single robbery. Separate trials would have required the duplication of testimony and evidence and would have caused the court to have “incurred the burdensome cost of two lengthy trials”. Under these circumstances we perceive no abuse of discretion in the trial court’s decision to grant the Commonwealth’s Motion to Extend and to deny the Appellant’s Motion to Dismiss under Rule 1100.

Appellant’s second allegation centers on the trial court’s denial of Appellant’s motion to dismiss the jury panel. Appellant argued before the trial court and now submits on appeal that the Commonwealth purposefully and deliberately exercised its peremptory challenges to exclude black persons from the jury. Since Appellant has preserved his objection to the Commonwealth’s use of peremptory challenges we will analyze Appellant’s claim in this direct appeal under the test announced in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Commonwealth v. McCormick, 359 Pa.Super. 461, 519 A.2d 442 (1986).

The Batson requirements for establishing a prima facie case of intentional racial discrimination are: 1) that the defendant is a member of a cognizable racial group and that the prosecution used peremptory challenges to remove from the venire members of the defendant’s race; 2) that the defendant can rely on the presumption that peremptory challenges to veniremen permit discrimination by those inclined to do so; and 3) that the facts and relevant circumstances raise the inference that the prosecutor used the peremptory challenges to racially discriminate. Batson, Id., 106 S.Ct. at 1723. Once these three requirements are satisfied, the burden shifts to the prosecution to explain adequately the racial exclusion. Id., at 1721.

Id., 359 Pa.Superior Ct. at 468, 519 A.2d at 446.

Since appellant is a member of the black race he has established that he belongs to a cognizable racial group. Id. However, Appellant has failed to establish that the Commonwealth’s use of its peremptory challenges raised an inference of a racially discriminatory practice. The record indicates that the Commonwealth challenged five potential jurors. Of this number four were black and one was white. The actual jury panel was composed of ten white members and two black members. The case to be considered by the panel involved a victim and a defendant who were both black. On these facts we do not believe an inference can be established that the prosecutor used the peremptory challenges to racially discriminate. (Contrast: Commonwealth v. McCormick, supra., where all the black veniremen reached on voir dire were peremptorily stricken by the Commonwealth, the appellant had established a prima facie case of racial discrimination.) (See also: Commonwealth v. McKendrick, 356 Pa.Super. 64, 514 A.2d 144 (1986), where despite the fact that appellant was tried by an all-white jury, appellant had not established a prima facie case under Batson since there were no racial issues in the case, the defendant and his victim were both members of the black race, and the witnesses for both sides were black.)

Appellant’s third assignment of error must also be dismissed. At trial, the court permitted a Commonwealth witness to testify that he saw Appellant with a knife several hours after the crime. In support of its ruling the trial court noted that it was Appellant’s position at trial that his co-defendant was the person who possessed a knife, knocked the victim to the ground and took his money. The trial court found that testimony indicating Appellant had in his possession a weapon of the same kind as that which was used in committing the crime was relevant and properly admissible under the facts of the case.

A weapon later discovered in a defendant’s possession may be properly admitted into evidence even though it cannot be identified positively as the weapon used in committing the crime since it may tend to prove that the defendant had a weapon similar to the one used. Commonwealth v. Lark, 316 Pa.Super. 240, 462 A.2d 1329 (1983). While evidence that a weapon was in the possession of the defendant sometime other than at the time of the crime does not conclusively establish the defendant’s possession at the critical moment, it is nonetheless relevant because the desired inference is made at least more probable by the information. Commonwealth v. Klick, 272 Pa.Super. 61, 64-65, 414 A.2d 669, 671 (1979). “Any uncertainty that the weapon is not the actual weapon used in the crime, goes to the weight of such evidence.” Commonwealth v. Lark, supra. In the instant case, we find no error in the trial court’s action admitting testimony concerning the knife.

The fourth issue presented challenges the trial court’s decision to permit the Commonwealth to introduce evidence of Appellant’s 1983 conviction for receiving stolen property should he choose to testify. Appellant’s claim, however, does not merit discussion in view of the District Attorney’s assurances at trial that the Commonwealth would not seek to use the Appellant’s record against him in the event that he testified.

Issues numbered five, six, seven and eight each question the propriety of the court’s charge to the jury. Appellant specifically contends that the court should have included a charge on “mere presence”, that the court erred in indicating to the jury that there was no dispute over whether Appellant was present at the scene of the crime, and that the court improperly showed bias in its highlighting and repetition of the facts in the case.

In reviewing jury instructions for prejudicial and reversible error, the charge must be read and considered as a whole; error cannot be predicated on isolated excerpts of the charge. It is the general effect of the charge that controls. Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978). Our examination of the entire charge convinces us that the jury was adequately and properly instructed. Contrary to Appellant’s allegations the jury was instructed that a defendant’s mere presence at the scene of the crime is insufficient to establish his guilt. The court charged:

Now ladies and gentlemen, as both lawyers have indicated to you, there is a principle of law grounded in common sense the a person is not guilty of a crime by virtue of evidence, simply that he was merely present when a crime was committed. Of course, there is nothing great about that, it is not difficult to understand from that principle of law. If one just happens to be there, one commits a crime, that presence alone is not a crime. The question in this case, ladies and gentlemen, is what is the testimony concerning whether or not the Defendant, James Long, did something other than just be there and stand there, and it is for you to decide whether or not the testimony is believable that James Long did more than be there if he participated in the effort, jointly with Carlton Ford.

N.T. 10-18-1985 at 109.

Further, the court accurately and without bias recounted the evidence presented at trial. We reject Appellant’s contention that the court erred by “calling attention” to certain testimony and by referring to the testimony in “such a manner so as to indicate to the jury that the Court rejected the defendant’s version of the facts and indeed believed him to be guilty”. Our reading of the charge is not consistent with these claims.

The final claim made by Appellant is a bald allegation of ineffective assistance of counsel. Issue number nine states: “Did the defendant fail to have effective assistance of counsel at his trial?”. In the Summary of Argument and the Argument portion of Appellant’s Brief, Appellant attempts to list numerous examples of trial counsel’s ineffectiveness. Without citation to the record or supporting case law, Appellant asserts that his counsel was ineffective for failing to submit or argue a suppression or pretrial omnibus motion, failing to object to the introduction of documents at trial, failing to impeach witnesses, failing to seek the recusal of the trial judge, failing to call all possible defense witnesses and failing to move for the dismissal of all indictments. Appellant also submits that his attorney was unprepared to argue Appellant's case on the day of scheduled argument for Post Trial Motions. As with the other allegations of ineffectiveness, Appellant does not offer any support for his position. He does not indicate what arguments should have been made, or the merits of the matters he wished to present to the trial court. Since Appellant has failed to properly develop these issues, we will not consider the merits thereof. Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982); Pa.R.A.P., Rule 2119(a).

Judgment of Sentence affirmed.

      . We note Appellant's Brief fails to comply with the Rules of Appellate Procedure. Contrary to the provisions of Pa.R.A.P., Rule 2116(a) which requires that the Statement of Questions "must never exceed one page", Appellant’s issues are listed on two pages. Further, Appellant’s Brief violates Pa.R.A.P. 2119, which requires the argument ’ portion of appellant’s Brief to be divided into parts according to the question to be treated therein, each to be identified with a separate heading. Despite these deficiencies, we will go on to consider the merits of Appellant’s claims in the interest of judicial economy.


author: WIEAND, Judge:

text:
    532 A.2d 857
    The ESTATE OF Daniel SANCHEZ, by its administratrix, Nannette SWADEY, Esq., Appellant, v. COLONIAL PENN INSURANCE, Appellee.
    Superior Court of Pennsylvania.
    Argued May 6, 1987.
    Filed Oct. 19, 1987.

      Ubel G. Velez, West Chester, for appellant.
    Perry J. Fiorvanti, Philadelphia, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

The issue in this appeal is whether the estate of a Delaware motorist who died as a result of injuries received in a vehicular accident in Pennsylvania is entitled to recover post-mortem work loss benefits under a policy of insurance written in accordance with a Delaware no-fault law which does not permit recovery for post-mortem work loss benefits. The trial court held that there could be no recovery and sustained preliminary objections in the nature of a demurrer to the complaint. After a close examination and careful analysis of the policy and the no-fault laws of both states, we conclude that the order of the trial court was correct. Therefore, we affirm.

On May 24, 1984, while operating. a motor vehicle in Oxford, Chester County, Pennsylvania, Daniel Sanchez was involved in a vehicular accident which caused injuries leading to his death four days later. Sanchez was a resident of the State of Delaware, and his vehicle was registered in Delaware. The vehicle was insured by Colonial Penn Insurance Company (Colonial Penn) under a policy of insurance which had been written in Delaware pursuant to that State’s no-fault insurance law. Colonial Penn paid to Nannette Swadey, the administratrix of Sanchez’s estate, all personal injury benefits required by the Delaware Motor Vehicle Code, including medical and funeral expenses. When a claim for work loss benefits was made, however, it was denied. An action against Colonial Penn was then instituted by Sanchez’s estate in Chester County, Pennsylvania. It was contended in the action that the Pennsylvania No-fault Motor Vehicle Insurance Act had been incorporated into the Sanchez policy by an out-of-state coverage clause contained in the Sanchez policy. Colonial Penn filed preliminary objections in the nature of a demurrer to the complaint. When the trial court sustained these preliminary objections and dismissed the complaint, the Sanchez estate appealed.

The out-of-state coverage clause upon which appellant relies is contained within the “Liability Coverage” section of the decedent’s policy and provides as follows:

If an auto accident to which this policy applies occurs in any state or province other than the one in which your covered auto is principally garaged, we will interpret your policy for that accident as follows:
If the state or province has:
1. A financial responsibility or similar law specifying limits of liability for bodily injury or property damage higher than the limit shown in the Declarations, your policy will provide the higher specified limit.
2. A compulsory insurance or similar law requiring a nonresident to maintain insurance whenever the nonresident uses a vehicle in that state or province, your policy will provide at least the required minimum amounts and types of coverage.
No one will be entitled to duplicate payments for the same elements of loss.

Appellant argues that under this provision, Colonial was required to provide no-fault benefits equal to the minimum requirements of the Pennsylvania No-fault law, including post-mortem work loss benefits. We are unable to agree.

The out-of-state coverage clause relied upon by the appellant-administratrix provided, in relevant part, that if the insured (the decedent) were injured in an automobile accident in a state (Pennsylvania) outside the place where the insured vehicle was principally garaged (Delaware), and that state had in effect a compulsory insurance or similar law requiring nonresidents to maintain insurance whenever they travelled within that state, the policy would be interpreted to provide at least the required minimum amounts and types of coverage. At the time of the accident, Pennsylvania had in effect a No-fault Act which provided compulsory coverage for automobile-related injuries sustained in this Commonwealth. Thus, according to the out-of-state clause of the decedent’s policy, one must look to the Pennsylvania No-fault Act to determine the amounts and types of coverage available to the decedent’s estate.

Section 201 of the Pennsylvania No-fault Act established the eligibility requirements for recovery of basic loss benefits. It provided:

(a) Accident within this State.—If the accident resulting in injury occurs in this Commonwealth, any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provisions of this act.

40 P.S. § 1009.201(a). However, the scope of this provision was limited by section 110(c)(1) which provided as follows:

(1) The basic loss benefits available to any victim or to any survivor of a deceased victim shall be determined pursuant to the provisions of the state no-fault plan for motor vehicle insurance in effect in the state of domicile of the victim on the date when the motor vehicle accident resulting in injury occurs. If there is no such state no-fault plan in effect or if the victim is not domiciled in any state, then basic loss benefits available to any victim shall be determined pursuant to the provisions of the state no-fault plan in effect in the state in which the accident resulting in injury occurs.

40 P.S. § 1009.110(c)(1). Under this section, the basic loss benefits available to a victim must be determined in accordance with the provisions of the No-fault Law in effect in the victim’s state of domicile at the time of the accident. See: Hahn v. Liberty Mutual Insurance Co., 336 Pa.Super. 329, 485 A.2d 830 (1984); Toter v. Knight, 278 Pa.Super. 547, 420 A.2d 676 (1980); DuBose v. McCoy, 277 Pa.Super. 149, 419 A.2d 705 (1980). See also: Swezey v. Home Indemnity Co., 691 F.2d 163 (3rd Cir.1982); Pryor v. Fireman’s Fund Insurance Co., 537 F.Supp. 971 (W.D.Pa.), affd, 696 F.2d 984 (3d Cir.1982). But see: Wierbinski v. State Farm Mutual Automobile Insurance Co., 477 F.Supp. 659 (W.D.Pa.1979). Because the decedent-insured was domiciled in Delaware at the time of the fatal collision, the Delaware compulsory insurance law which was then in effect is determinative of the benefits available to the decedent’s estate.

Section 2118(a)(2)a.5. of the Delaware Motor Vehicle Code provides:

“Insured person” for purposes of this section shall include the personal representative of an estate; provided, however, that if an accident occurs, the “net amount of lost earnings” shall include only that sum attributable to the period prior to the death of the person so injured.

21 Del.Code.Ann. § 2118(a)(2)a.5. Under this provision, “net amount of lost earnings” does not include any loss attributable to the period after death. Therefore, according to Delaware law, the decedent’s estate is entitled to no post-mortem work loss benefits. Thus, the trial court correctly concluded that such benefits were not recoverable under the out-of-state coverage clause within the decedent’s policy of insurance.

Thus far we have assumed that the policy provision relied upon by appellant, which is to be found in the “Liability Coverage” section of the policy, has application also to the no-fault coverage provided by the policy. This has enabled us to consider appellant’s argument at face value. In fact, however, the coverage for personal injury protection benefits was provided in an amendatory endorsement to the policy which provided no-fault benefits as follows:

The Company will pay, in accordance with Subchapter 1, Chapter 21, Title 21, of the Delaware Code, to or for the benefit of the injured person:
(a) medical expenses,
(b) funeral expenses,
(c) loss of earnings, and
(d) substitute service expenses

This amendatory endorsement does not contain an out-of-state coverage clause similar to that contained in the “Liability Coverage” section of the policy. Instead, the amendatory endorsement provides that no-fault coverage for personal injury benefits shall be determined in accordance with the Delaware Motor Vehicle Code.

“[A]ll provisions of an insurance contract must be read together and construed according to the plain meaning of the words involved, so as to avoid ambiguity while at the same time giving effect to all of its provisions.” Masters v. Celina Mutual Insurance Co., 209 Pa.Super. 111, 115, 224 A.2d 774, 776 (1966). See: Smith v. Cassida, 403 Pa. 404, 169 A.2d 539 (1961); Newman v. Massachusetts Bonding & Insurance Co., 361 Pa. 587, 65 A.2d 417 (1949); Delaware County Construction Co. v. Safeguard Insurance Co., 209 Pa.Super. 502, 228 A.2d 15 (1967). “A construction of an insurance policy which entirely neutralizes one provision should not be adopted if the contract is susceptible of another construction which gives effect to all of its provisions and is consistent with the general intent” of the parties. 43 Am.Jur.2d Insurance § 275, at 350 (1982).

In Pryor v. Fireman’s Fund Insurance Co., supra, the plaintiff, a resident of Connecticut, had been injured when the car in which she was riding collided with another vehicle in Pennsylvania. At the time of the accident the plaintiff was covered under a policy of automobile insurance which had been issued to his father by the defendant-insurance company in Connecticut. Plaintiff commenced an action against the defendant-insurer to recover basic loss benefits under the Pennsylvania No-fault Act. Such benefits, he argued, were available pursuant to the following out-of-state coverage provision contained in his father’s insurance policy:

If an auto accident to which this policy applies occurs in any state or province other than the one in which your covered auto is principally garaged, we will interpret your policy for that accident as follows:
2. If the state or province has a compulsory insurance or similar law requiring a nonresident to maintain insurance whenever the nonresident uses a vehicle in that state or province, your policy will provide the required minimum amount and types of coverage.

Id. at 976. Finding this provision to be inapplicable, the federal district court for the Western District of Pennsylvania determined that plaintiff’s recovery of no-fault benefits was limited to those available under Connecticut law. The court reasoned:

[A] glance at the policy as a whole reveals that this isolated provision is in the liability insurance section of the policy. The first page of the policy clearly indicates a $5,000 limit as to basic reparations benefits. This limit is reiterated in the Connecticut endorsement which ... was attached to the insurance policy of the plaintiff’s father. Consequently, there can be no contractual basis for additional recovery of basic reparations benefits beyond those authorized by Connecticut law.

Id. at 977 (emphasis in original).

So, too, in the instant case the out-of-state coverage clause relied upon by the appellant-administratrix appears within the “Liability Coverage” section of the policy and not in the amendatory endorsement which provides the coverage for personal injury protection benefits. To read the out-of-state clause into the amendatory endorsement, as appellant has suggested, would be, in effect, to rewrite the insurance contract by inserting a new provision extending coverage beyond that allowed by the express terms of the policy. This we cannot do. Such a construction of the policy would not only conflict with the intent of the parties as expressed in the written agreement, but would neutralize the terms of the no-fault endorsement which clearly provided that a claimant’s entitlement to personal injury protection benefits was to be determined solely in accordance with the Delaware no-fault insurance law. Thus, the out-of-state clause contained within the “Liability Coverage” section of the decedent’s policy can have no application to the no-fault coverage provided in the amendatory endorsement.

This interpretation is consistent also with the express language of the out-of-state coverage clause contained in the “Liability Coverage” part of the policy. The plain language thereof demonstrates that the purpose of the clause was to provide adequate liability coverage to meet the requirements of “financial responsibility” and “compulsory insurance” laws of states other than Delaware. It contains no language which can be construed as providing no-fault benefits in accordance with laws enacted in other states. We conclude, therefore, that appellant may not rely on the language of the out-of-state liability coverage clause to expand no-fault coverage under an amendatory endorsement to amounts established by the Pennsylvania No-fault law for Pennsylvania residents.

Accepting as true all averments pleaded in appellant’s complaint, as we must, see Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 274, 382 A.2d 715, 717 (1978), we conclude that the administratrix of the Sanchez Estate has failed to allege a cause of action entitling her to recover post-mortem work loss benefits. Therefore, we affirm the order of the trial court which sustained Colonial Penn’s preliminary objections in the nature of a demurrer and dismissed the administratrix’s complaint.

Affirmed.

      . Act of Juiy 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . The trial court's order also directed Colonial Penn to “compensate Plaintiff pursuant to Section 2118(a)(2) of the Delaware Code for decedent’s net lost earnings for the period between decedent’s automobile accident on May 24, 1984 and his death on May 28, 1984.” This portion of the order has not been challenged on appeal.

      . Portions of the insurance contract were omitted from appellant’s complaint. The portions which have been copied and attached to the complaint do not contain such an out-of-state coverage clause.