author: JOHNSON, Judge: DEL SOLE, Judge,

text:
    542 A.2d 95
    COMMONWEALTH of Pennsylvania v. Craig A. SNYDER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 2, 1987.
    Filed April 11, 1988.
    Reargument Denied June 10, 1988.

      Ronald C. Travis, Williamsport, for appellant.
    Amy L. Hallenbeck, Assistant District Attorney, Montoursville, for Com.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

This case involves an interpretation of Paragraph (d)(3)(i) of Rule 1100. Prompt Trial, Pa.R.Crim.P., which requires that periods of delay resulting from the unavailability of the defendant shall be excluded in determining the period for commencement of trial. We are asked to decide whether attempts by the defendant to qualify for Accelerated Rehabilitative Disposition (ARD), involving contacts with the attorney for the Commonwealth, would operate to overcome the “unavailability” of the defendant resulting from an outstanding bench warrant issued for failure to appear at a scheduled arraignment. We conclude that such preliminary-contacts do not render the defendant “available” under Rule 1100(d)(3)(i), and therefore affirm the judgment of sentence.

The Honorable Thomas C. Raup conducted a non-jury trial on a case stated basis in May, 1987. The judge found Craig A. Snyder, Defendant, guilty of driving under the influence of alcohol (D.U.I.), failure to stop at a stop sign, reckless driving, and disorderly conduct. The reason advanced for proceeding on a case-stated basis was to preserve the issue of Defendant’s right to dismissal of the charges based upon the Commonwealth’s alleged violation of Rule 1100. Judge Raup sentenced the Defendant to a term of forty-eight hours to one year at the Lycoming County Prison on the D.U.I. conviction, together with a $700 fine. Defendant received a concurrent sentence of one years’ probation on the disorderly conduct conviction, with a special condition of that probation being a $300 fine. The Sentencing Order dated June 5,1987 and filed June 10, 1987 is silent as to the disposition of the convictions on failure to stop at a stop sign and reckless driving.

The sole issue presented on this appeal is whether the court erred in denying Defendant’s oral motion, submitted at the conclusion of the case-stated non-jury trial, in the nature of a motion in arrest of judgment asserting the Rule 1100 issue.

From our review of the record, including the Transcript of Proceedings of March 13, 1987 (Hearing on Defendant’s Motion to Dismiss Under Rule 1100) the following facts emerge. Following Defendant’s arrest on December 2, 1985, a written complaint was filed on December 4th and a preliminary hearing was scheduled before a district justice in Jersey Shore, Lycoming County. Before the scheduled hearing date, the Defendant appeared before the district justice, waived his right to a preliminary hearing, received a written notice of his arraignment scheduled for January 27, 1985 in the Lycoming County Court of Common Pleas, and was released on his own recognizance.

On or before January 2, 1986, Defendant appeared in his attorney’s office and signed an Entry of Appearance and Waiver of Arraignment form. The form was not then filed. On January 27, 1986, the case was called in court and the Defendant did not appear. At the Commonwealth’s request, a bench warrant was issued the same day. Nearly six months later, while the bench warrant was still outstanding, Defendant’s counsel filed the Entry of Appearance and Waiver of Arraignment form with the Clerk of Court’s office on July 16, 1986. The record does not reflect any service of a copy of the form on the Office of the District Attorney at any time.

The bench warrant was served on the Defendant on January 6, 1987. The same day, the Defendant was brought before the issuing judge who determined that “the error is on the part of Defense Counsel for not having appropriately filed a waiver of arraignment.” The issuing judge released the Defendant under the previously filed recognizance bond, to appear before the court as directed for purposes of further hearings.

Two days later, defense counsel filed a Rule 1100 motion which was denied on March 13, 1987, following the oral presentation of certain stipulated facts and documents. See Transcript of Proceedings, March 13, 1987.

The case-stated non-jury trial was thereafter promptly held on May 5, 1987 resulting in a guilty verdict.

At the March 13,1987 hearing on the Rule 1100 motion to dismiss, the following facts were presented to the court, being theretofore outside the official court records. On January 2, 1986, defense counsel wrote to the District Attorney, indicating his representation of the Defendant and enclosing an A.R.D. application. On January 13, 1986, the District Attorney’s office wrote to the West Branch Drug and Alcohol Center, requesting that the Center contact Defendant to arrange for certain testing in connection with the A.R.D. application. The Center contacted Defendant and the testing was accomplished on January 29, 1986.

Following receipt of the results of the Court Reporter’s Network (CRN) examination, the District Attorney’s office wrote to Defendant on February 25, 1986, informing him that he was being denied access to the A.R.D. Program. The stipulation of March 13, 1987, as orally presented by defense counsel, indicates that subsequent to Defendant receiving notice of his denial for A.R.D. sometime around February 25, 1986, nothing was done with regard to the case until January 6, 1987, when Defendant was seized pursuant to the bench warrant.

We begin our analysis by setting forth the pertinent subsection of Rule 1100, as it was in effect at all times material herein:

Rule 1100. Prompt Trial
(a) ....
(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed
(d) In determining the period of commencement of trial, there shall be excluded therefrom:
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or his attorney;

The mechanical run date, were no time chargeable to Defendant, would have been June 2, 1986. Defendant was not brought to trial until May 5, 1987.

At the preliminary hearing in the case now before us, Defendant was provided with a written notice of arraignment, scheduled for January 27, 1986. There is no dispute that he was aware of the date and place of arraignment. Upon his failure to appear, with absolutely nothing of record to explain his non-appearance, the court properly issued a bench warrant at the Commonwealth’s request. Defendant was subsequently apprehended on January 6, 1987 on the bench warrant issued January 27, 1986.

We believe this case is controlled by our Supreme Court’s pronouncement in Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978). In Cohen, the defendants had been held for action of the grand jury and subsequently indicted. On the indictment day, the defendants failed to appear for arraignment and a bench warrant was issued for their arrest. Twenty days later, the defendants appeared in court, were purged of contempt, arraigned and released pending trial. A petition for extension of time under Rule 1100(c) was filed 192 days after the filing of complaints. Both the trial court and this court found the petition to have been untimely filed, which would have resulted in the dismissal of the charges. On the Commonwealth’s appeal from this court’s affirmance of the order granting the motion to dismiss, our Supreme Court vacated the order dismissing the charges and remanded the cause for the limited purpose of determining whether the defendants had received proper notice of the arraignment.

In vacating the order of the trial court, our Supreme Court took issue with the trial court’s analysis which was based upon the Commonwealth’s perceived obligation to demonstrate due diligence. The Cohen court stated that the due diligence analysis failed to consider the responsibility of a defendant who has been admitted to bail. After setting forth the conditions of bail as set forth in Pa.R. Crim.P. 4013 (in effect at that time), the court said:

Where a defendant undertakes to accept the status of bail during the pendency of court proceedings he assumes the responsibility of making himself available for any court appearances required of him in connection with the action, upon receipt of reasonable notice. To focus solely upon the conduct of the Commonwealth not only ignores the defendant’s dereliction of an obligation, but also places him in the position of possibly benefitting from his own wrongdoing. Where the delay results from the defendant’s willful failure to appear at the appointed time it is obviously not the type of harm envisioned in the protections sought to be afforded by the speedy trial guarantee. To the contrary, the delay is directly attributable to the fact that he was in a bail status, and not in custody, and that he deliberately abused that prerogative.

Commonwealth v. Cohen, 481 Pa. at 354, 392 A.2d at 1330. (emphasis in original).

Our Supreme Court in Cohen went on to declare:

Where ... the accused is aware of his obligation to appear and fails to do so, he may legitimately be held accountable for any resultant delay____ Where the defendant is on bail and has notice of his obligation to appear and fails to do so, a concept of due diligence in apprehending the fugitive is misplaced in a speedy trial analysis. To rule otherwise would permit a defendant who intentionally absented himself from a scheduled court hearing to have the charges against him dismissed if the Commonwealth’s efforts to locate him did not measure up to a court’s standard of due diligence. Such a result is obviously absurd.
We therefore hold that a defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself. In such a case the Commonwealth is entitled to an exclusion of this period under section (d)(1) [now, (d)(3)(i) ] without the requirement of a showing of its efforts to apprehend the defendant during the period of his absence.

Id., 481 Pa. at 355-356, 392 A.2d at 1331.

This general rule, as established in Cohen, has been followed or cited in numerous cases. See, e.g., Common wealth v. Morgan, 484 Pa. 117, 121, 398 A.2d 972, 973 (1979); Commonwealth v. Brown, 351 Pa.Super. 119, 124, 505 A.2d 295, 297 (1986); Commonwealth v. Byrd, 325 Pa.Super. 325, 329, 472 A.2d 1141, 1143-44 (1984); Commonwealth v. Colon, 317 Pa.Super. 412, 421, 464 A.2d 388, 392-93 (1983); Commonwealth v. Williams, 299 Pa.Super. 226, 231, 445 A.2d 537, 539 (1982); Commonwealth v. Bedsaul, 298 Pa.Super. 174, 176, 444 A.2d 717, 718 (1982); Commonwealth v. Snyder, 280 Pa.Super. 127, 131, 421 A.2d 438, 440 (1980); Commonwealth v. Mizic, 274 Pa.Super. 331, 336, 418 A.2d 432, 433-34 (1980); Commonwealth v. McCulley, 270 Pa.Super. 115, 119, 410 A.2d 1276, 1278 (1979).

Defendant urges us, on this appeal, to find that his failure to appear for court arraignment was not a “willful failure” as emphasized by the Cohen court, because he was living at the address contained in the file of the District Attorney and was physically available to go to trial. We refuse to conclude, on the record before us, that Defendant’s non-appearance at the scheduled arraignment was anything other than intentional.

Counsel for Defendant alleges in the Brief for Appellant that Defendant’s failure to appear when scheduled resulted from advice by counsel that “the filing of the Waiver of Arraignment form precluded him having to appear at the courthouse on January 27, 1986.” This is not contained in any of the facts stipulated by the parties, and we decline to consider that. Even if this were the case, the fact of record that the waiver was not filed until long after the scheduled arraignment renders such advice meaningless. We learn from Justice Papadakos’ Opinion of the Court in Commonwealth v. Wells, 513 Pa. 463, 469, 521 A.2d 1388, 1391 (1987) that strategic or tactical decisions made by defense counsel on behalf of the client are imputed to the defendant who is bound thereby. Although we are here faced with a claimed inadvertence, we feel the same rule should apply.

Defense counsel did not enter any appearance until July 16, 1986, about six months after the arraignment date and the issuance of the bench warrant. Pa.R.Crim.P. 302(a) provides:

Rule 302. Attorneys — Appearances and Withdrawals (a) Counsel for defendant shall enter an appearance in writing with the clerk of courts promptly after being retained or appointed and serve a copy thereof on the attorney for the Commonwealth. If a firm name is entered, the name of an individual lawyer shall be designated as being responsible for the conduct of the case. Counsel shall not be permitted to represent a defendantfollowing a preliminary hearing unless an appearance is entered, (emphasis supplied).

We may take judicial notice of the fact that the trial docket is controlled by the court of common pleas, and not by the district attorney. Thus, steps taken to advance the prosecution of Defendant’s case emanate from the action of the court’s clerks and not, in the first instance, action by the district attorney.

In the same vein, the provisions of Rule 4013 relating to conditions of bail require the defendant to appear before the issuing authority or the court at all times required, and to submit to all orders and process of the issuing authority or the court. We find no exception in the Rule permitting a defendant to not appear, simply because informal contacts are ensuing between the defendant and the district attorney.

Our refusal to find a non-willful failure in the case before us is strengthened, we believe, by this court’s holding in Commonwealth v. Colon, supra. There, the defendant’s failure to appear for trial resulted from his incarceration following violation of probation on unrelated charges. We there held that the defendant was unavailable within the meaning of Rule 1100(d) and, based upon the failure to comply with the notice obligation of Rule 4013 permitted the exclusion of time, attributing the responsibility to the defendant.

Finding Defendant was unavailable provides only one of the prerequisites for an exclusion under rule 1100(d)(3). It is necessary to also find that the period of delay “results from” the unavailability of the defendant. Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972, 973-75 (1979); Commonwealth v. Gorham, 341 Pa.Super. 499, 504, 491 A.2d 1368, 1370-71 (1985).

Here, the issuance of the bench warrant came about through Defendant’s failure to either appear or provide the court with any reason for his non-appearance. Pa.R. Crim.P. 4013(a). As stipulated by defense counsel, nothing was done by Defendant with regard to the case between receipt of his denial of access to the A.R.D. Program, on or about February 25, 1986, and his being taken into custody on January 6, 1987. Nothing on the record explains why Defendant took no steps to even inquire as to the status of his case during that period. The record is also silent as to any action taken by defense counsel other than the docket filing of the Entry of Appearance and Waiver of Arraignment form in July 1986. We are not prepared to assume that the mere filing of an entry of appearance and waiver of arraignment form some six months following the issuance of a bench warrant is sufficient, by itself, to place the responsible calendar control officials on notice concerning either the whereabouts or availability of the defendant. We are constrained to conclude, therefore, that the entire period of time between Defendant’s failure to appear and his subsequent apprehension on an outstanding bench warrant is a period of delay resulting directly from Defendant’s failure to appear.

Our analysis here is based upon a procedural rule properly promulgated by our Supreme Court. Defendant has not argued, and we do not consider, any deprivation of an underlying right to a speedy trial under either the Sixth Amendment to the United States Constitution or Article 1, Section 9 of the Pennsylvania Constitution. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). It is clear that defense counsel’s failure to timely file his entry of appearance and waiver of arraignment had nothing to do with Defendant securing a fair trial, which in this case proceeded on a casé stated basis. Nor do we find any fundamental unfairness where, as here, Defendant remained released on his own recognizance throughout these proceedings and, as far as the record reflects, remains on bail at this writing.

Rule 1100 should not be utilized to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth. Commonwealth v. Genovese, 493 Pa. 65, 70, 425 A.2d 367, 370 (1981). The rule which we apply here, holding Defendant accountable for the delay resulting from his failure to appear at arraignment, is, we believe, well settled law in this Commonwealth. When we exclude the period from Defendant’s failure to appear at the proceeding, of which he was properly notified, to the time of his subsequent apprehension on an outstanding bench warrant, we readily conclude that Defendant's trial commenced well within the time limitations set forth in Rule 1100(a)(2).

We find no error in the trial court’s denial of the motion in arrest of judgment. Judgment of sentence is affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I dissent from the majority’s position that the entire period of time between Defendant’s failure to appear and his subsequent apprehension on an outstanding bench warrant, is a period of delay resulting from the unavailability of Appellant and is therefore excludable in determining the period for commencement of trial.

Defense counsel sent the District Attorney (D.A.) of Lycoming County a letter dated January 2, 1986, indicating his representation of Appellant. In this letter he enclosed Appellant’s application for ARD. The D.A., in response to that letter, scheduled Appellant for a CRN test on January 29, 1986, and notified Appellant of that appointment through a letter addressed by the D.A. to Appellant at his home address on January 13, 1986. The CRN examination was taken by Snyder on January 29, 1986, and the results were received by the D.A. on February 14, 1986. On February 25, 1986, the D.A.’s office sent Appellant a letter to his home address indicating that he had been denied access to the ARD Program, and indicating that his case would proceed in the normal manner.

On January 8, 1987, counsel for Appellant filed a Motion to Dismiss the criminal charges on the basis that Rule 1100 of Pa.R.Crim.P. had been violated. The foundation of his argument was, and continues to be in this appeal, that his failure to appear for a court arraignment on January 27, 1986 was not a “willful failure,” and in light of the information available to the D.A.’s office concerning his whereabouts, he cannot be considered to have been “unavailable” for the purpose of excluding a sufficient period of time to find that Rule 1100 has been adhered to.

I have no quarrel with The Majority’s presentation of the facts. The trial court opinion referred to this factual setting as:

one of those “gray area” Rule 1100 issues which require the Court to decide whether the charges should be dismissed when there has been a lack of care on the part of the Commonwealth in ascertaining the whereabouts of the defendant and in processing the charges, but where there has been no actual misconduct by the District Attorney having the purpose of evading the provisions of Rule 1100.

(T.C. at 2). The trial court cited Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983) in support of its decision which is a progeny of the line of cases evolving from our Supreme Court’s decision in Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978). Unlike the Majority, I find the facts herein to be distinguishable from those representative of the controlling law and accordingly I would hold that Rule 1100 has been violated and the charges against Appellant should be dismissed.

The rationale expressed in Cohen is relevant to the issue confronting us.

Where a defendant undertakes to accept the status of bail during the pendency of court proceedings he assumes the responsibility of making himself available for any court appearances required of him in connection with the action, upon receipt of reasonable notice. [See also Pa.R. Crim.P. 4013(c)]. To focus solely upon the conduct of the Commonwealth not only ignores the defendant’s dereliction of an obligation but also places him in the position of possibly benefitting from his own wrongdoing. Where the delay results from the defendant’s willful failure to appear at the appointed time it is obviously not the type of harm envisioned in the protections sought to be afforded by the speedy trial guarantee. To the contrary, the delay is directly attributable to the fact that he was in a bail status, and not in custody, and that he deliberately abused that prerogative.

Commonwealth v. Cohen, 392 A.2d at 1330-31. The key phrase in the above citation is the defendant’s willful act in dereliction of a serious societal duty after having been subjected to the process of court. See Commonwealth v. Taylor, 340 Pa.Super. 87, 489 A.2d 853 (1985) (defendant unavailable from time he escaped from prison until his subsequent apprehension due to willfulness of act); Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983) (defendant found unavailable for period of 16 days, during which he was in jail in same county, having failed to notify Commonwealth of his change of address upon being incarcerated in violation of Rule 4013(c)); Commonwealth v. Blackwell, 312 Pa.Super. 117, 458 A.2d 541 (1983) (defendant’s failure to notify Court of new address was a “willful failure” and he was “unavailable” pursuant to Rule 1100); Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982) (defendant’s obligation to appear for trial did not change when he was incarcerated and failed to notify Commonwealth of his change of address).

Appellant Snyder’s failure to appear at his arraignment cannot be deemed a “willful failure” or a deliberate abuse of the system, but rather was due to the failure of his defense counsel to timely file the arraignment waiver. Unlike the defendants in the above noted cases, Snyder never intentionally tried to evade the proceedings, and in fact was actively cooperating with the D.A.’s office in the hope of being admitted to ARD. The trial court acknowledged this fact in its January 6, 1987 Order when it again released Appellant on bail.

If Appellant was to be considered a fugitive at all, at best it could only have been for the period of time between January 27, 1986 and January 29, 1986. Once Appellant appeared at the CRN test as directed by the D.A., it is obvious that the D.A. was aware of his location and the fact that he was available. Furthermore, the D.A. mailed Appellant notification of his rejection from the ARD program at his home address, indicating that his case would proceed in the normal manner. The facts clearly establish that the D.A. had information showing that the office was able to successfully communicate with Appellant at the address listed on the criminal charges long before the 180 day time period expired. A question also arises as to why the bench warrant was not served on Appellant after it was issued on January 27, 1986.

Interpreting Rule 1100 necessitates a balancing of certain interests, namely the protection of the accused’s speedy trial rights and the protection of society. Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981). “The goals of efficiency and ease of administration which Rule 1100 serves are worthy; they should not be exalted at the expense of justice. Thus, in interpreting our Rule 1100, we must throw away the stopwatch and pick up the scales of justice.” Commonwealth v. Crowley, 502 Pa. 393, 402, 466 A.2d 1009, 1014 (1983).

In applying this philosophy to the case sub judice, appellant’s rights to a speedy trial were clearly violated. The Commonwealth should not be permitted to use the Rule as a sword to mitigate its less than reasonable behavior herein. To hold otherwise, would violate the spirit of Rule 1100.

In my opinion the judgment of sentence should be reversed and Appellant discharged.

      . By order of December 31, 1987, effective immediately, our Supreme Court amended Rule 1100, extending the period during which to bring to trial a defendant at liberty on bail to 365 days, while preserving the 180-day rule found in Rule 1100(a)(2) for incarcerated defendants. We here apply the Rule in effect on March 13, 1987, the date of the hearing on the motion to dismiss.

      . Rule 4013(c) mandates that the conditions of bail bond shall provide that the appellant will give written notice to the issuing authority, the clerk of courts, the district attorney, and court bail agency or other designated court bail officer, of any change of address within forty-eight (48) hours of the date of such change.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    542 A.2d 102
    COMMONWEALTH of Pennsylvania v. Grover DINWIDDIE, Appellant.
    Superior Court of Pennsylvania.
    Submitted August 24, 1987.
    Filed April 20, 1988.
    Reargument Denied June 9, 1988.

      Robert M. Lipshutz, Philadelphia, for appellant.

      Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before McEWEN, JOHNSON, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for robbery, criminal conspiracy, possession of instruments of crime, bribery, and obstruction of the administration of justice. Appellant contends that the trial court erred in failing to (1) grant his motion for a new trial on the basis that the prosecution purposely used its peremptory challenges to exclude members of defendant’s race from the jury; (2) suppress an impermissible photo array; and (3) order the suspension of departmental procedure so that five police officers could testify as reputation witnesses. For the reasons set forth below, we vacate the judgment of sentence and remand for a new trial.

On August 31, 1984, appellant, a black Philadelphia police officer, was charged with having committed three armed robberies and related offenses. Following denial of pre-trial motions, the venire was empaneled. The trial court conducted voir dire and questioned each potential juror as to his or her occupation, residence, and family status. The prosecutor then exercised his peremptory challenges to strike six potential jurors from the venire, five of whom were black. Subsequently, a jury composed of ten white and two black jurors was selected. On two separate occasions, appellant’s counsel objected to the prosecution’s peremptory challenges alleging that the prosecution excluded five potential jurors solely because they were black and members of the defendant’s race. Appellant’s counsel moved , to discharge the jury on the ground that appellant’s constitutional rights had been violated. The trial court requested that the prosecutor place his reasons for the peremptory challenges on the record, but the prosecutor refused to do so stating that such action was unnecessary and that there did not exist a prima facie case of systematic exclusion of members of defendant’s race. Following the trial, appellant was found guilty and sentenced to an aggregate term of fifteen to thirty years incarceration. Post-trial motions were argued and denied. This appeal followed.

Appellant first contends that the prosecutor improperly used peremptory challenges to strike members of appellant’s race from the jury. Appellant argues that the only possible inference that can be drawn from the facts of this case indicates that the prosecutor purposely discriminated against selecting members of defendant’s race from sitting as jurors at his trial. Thus, appellant, in support of his argument, urges us to follow the recent United States Supreme Court decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). For the reasons set forth below, we agree with appellant’s contention.

It is well-established that “the constitutional standard of fairness requires that a defendant have ‘a panel of impartial indifferent jurors.’ ” Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975) (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961)). The jury should be composed of a selection of defendant’s peers, a cross-section of the community. Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 (1880); see also Batson v. Kentucky, supra 476 U.S. at 84-85, 106 S.Ct. at 1716. Although a defendant is not constitutionally entitled to a jury composed in whole or part of persons of his or her own race, Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975), the Equal Protection Clause requires that the jury selection process be free from any taint of discriminatory purpose, Strauder v. West Virginia, supra 100 U.S. at 305. More than a century ago, the Supreme Court held that the purpose of selecting an impartial jury was to safeguard a defendant’s fourteenth amendment right to “protection of life and liberty against race or color prejudice.” Id. at 309. The decision in Strauder laid the foundation for the Supreme Court’s unrelenting efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn. Batson v. Kentucky, supra 476 U.S. at 84-85, 106 S.Ct. at 1716. In Batson, the Supreme Court, expressly overruling its decision in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), upheld the constitutional limitations on a prosecutor’s use of peremptory challenges to purposely exclude members of a defendant’s race from participating as jurors and ruled that the discriminatory use of peremptory challenges in the jury selection process against a member of a cognizable racial group constitutes a violation of the Equal-Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, supra 476 U.S. at 96-97, 106 S.Ct. at 1723. In Batson, the Court observed

[although a prosecutor is entitled to exercise peremptory challenges “for any reason at all, as long as that reason is related to his [or her] view concerning the outcome” of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race.

Id. at 89, 106 S.Ct. at 1718-19 (citations omitted).

In Batson, supra, the Supreme Court set forth a new procedure by which a defendant could establish a prima facie case of discrimination in the jury selection process. Id. at 96-97, 106 S.Ct. at 1723. The Court noted that under Swain v. Alabama, supra, a defendant, in order to establish a prima facie case, was required to show that the prosecution engaged in a systematic pattern of exclusion, based on race, over a series of cases. Batson v. Kentucky, supra at 92-93, 106 S.Ct. at 1720-21; see also Swain v. Alabama, supra 380 U.S. at 223, 85 S.Ct. at 837. The Batson Court held that the evidentiary standard under Swain, “placed on defendants a crippling burden of proof”, Batson v. Kentucky, supra 476 U.S. at 92, 106 S.Ct. at 1720. Under the new standard announced by the Court in Batson, the defendant may establish a prima facie case of purposeful discrimination based solely on evidence presented at defendant’s trial concerning the prosecutor’s discriminatory use of peremptory challenges. Id. at 96, 106 S.Ct. at 1723. The Supreme Court set forth the test as follows:

The defendant first must show that he [or she] is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Id. at 96, 106 S.Ct. at 1723 (citations omitted).

Once the defendant has raised this inference, it is incumbent upon the trial court, after considering all the relevant circumstances, to determine if the defendant has established a prima facie case of intentional discrimination. Id. at 96-97, 106 S.Ct. at 1723. The burden then shifts to the prosecution to give a neutral explanation for striking the potential jurors. Id. In meeting its burden, however, the prosecutor, however, may not state that the jurors were excluded because of an assumption that they would be biased towards the defendant solely because of their shared race. Id. at 96-97, 106 S.Ct. at 1723. In addition, it is insufficient for the prosecutor to merely state that his or her actions were done in good faith and no racial motive exists for striking members of defendant’s race. Id. at 96-97, 106 S.Ct. at 1723.

Here, as the trial court recognized, appellant has established a prima facie case to support an inference that the prosecutor improperly used peremptory challenges to exclude members of appellant’s race from the petit jury. Initially, appellant, who is black, demonstrated that he is a member of a racially cognizable group and that the prosecution exercised its peremptory challenges to exclude members of his race. See N.T. June 23, 1986 at 31-33, 43-45 (Voir Dire Examination); see also Batson v. Kentucky, supra at 96-97, 106 S.Ct. at 1723. Five of the six peremptory challenges exercised by the prosecutor were used against black venire members. See N.T., June 23, 1986 at 43. Additionally, appellant made timely objections both during and at the conclusion of the jury selection. See N.T. June 23, 1986 at 30, 43.

In accordance with Batson, the trial court, upon considering all the relevant circumstances, directed the prosecutor to come forward with an explanation for challenging the five black venire members. N.T. June 23, 1986 at 31. The court’s directive that the prosecutor provide an explanation for striking the black venire members evidences that the court was fully satisfied that appellant had presented a prima facie showing of discrimination. See Batson v. Kentucky, supra at 96-97, 106 S.Ct. 1723, Commonwealth v. McCormick, 359 Pa.Superior Ct. 461, 476-77, 519 A.2d 442, 450 (1986). After the court made its threshold determination, the burden shifted to the prosecution to provide a neutral explanation for striking the black venire members. See Batson v. Kentucky, supra 476 U.S. at 96-97, 106 S.Ct. at 1723; Commonwealth v. McCormick, supra 359 Pa.Superior Ct. at 469, 519 A.2d at 446. In response to the court’s request, the prosecutor stated on the record that he took exception to that procedure and declined to articulate his reasons for striking the black venire members. N.T. June 23, 1986 at 32. Appellant then motioned to strike the jury, but the court denied the motion. Id. at 45. By failing to articulate any reasons for his action, as he is required to do under Batson, the prosecution failed to carry its evidentiary burden. Because the court gave the Commonwealth the opportunity to state a nondiscriminatory reason for the peremptory challenges of the five black venire members, and because the Commonwealth declined to do so, we conclude that it failed to provide a nondiscriminatory explanation. Accordingly, because the Commonwealth was unable to articulate a neutral explanation for its actions, we must vacate the judgment of sentence and remand for a new trial.

For the above-stated reasons, we vacate the judgment of sentence and remand for a new trial.

Judgment of sentence vacated and case remanded for a new trial. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 4701.

      . 18 Pa.C.S.A. § 907.

      . 18 Pa.C.S.A. § 5101.

      . Although a jury composed of ten white jurors and two black jurors was eventually empanelled, we are mindful of Justice Marshall's concurring opinion in Batson, in which he stated that:
      Merely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge.
      [W]here only one or two black jurors survive the challenges for cause, the prosecutor need have no compunction about striking them from the jury because of their race____ Prosecutor's are left free to discriminate against blacks in jury selection provided that they hold that discrimination to an “acceptable” level.

        Batson v. Kentucky, supra 476 U.S. 105, 106 S.Ct. at 1727-28. Thus, the presence of two black jurors at appellant’s trial is not sufficient to overcome the presumption that the prosecutor exercised his peremptory challenges to exclude five black venire members because of their race.

      . In both Batson and McCormick, the respective courts concluded that the appropriate remedy was to remand to the trial court for an evidentiary hearing. An evidentiary hearing was necessary in these cases, however, because, unlike the instant case, the prosecution was not given the opportunity to articulate a legitimate nondiscriminatory reasons for the peremptory challenges.

      . Because of our disposition of this issue, we need not address appellant’s remaining contentions.


author: BROSKY, Judge:

text:
    542 A.2d 106
    COMMONWEALTH of Pennsylvania v. Linda Sue MOORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 15, 1987.
    Filed April 21, 1988.
    Reargument Denied June 10, 1988.

      Paul R. Gettleman, Zelienople, for appellant.
    Edward M. Clark, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence imposed as a result of appellant’s conviction of voluntary manslaughter after a non-jury trial.

On appeal, appellant raises several allegations of trial counsel’s ineffectiveness: (1) that trial counsel failed to file a motion to suppress appellant’s confession and object to its use during the trial judge’s deliberation; (2) trial counsel’s neglect in not objecting to the insufficiency and misleading character of the jury trial waiver colloquy; (3) trial counsel’s failure to present a good character defense; (4) that counsel was remiss in not introducing the victim’s extensive criminal record; and (5) the latter’s blood alcohol level at the time of death; (6) trial counsel’s dereliction in not investigating from where the gun used in the killing came by not interviewing known witnesses; and (7) trial counsel’s failure to argue as a matter of law the defense of others. Appellant also asserts an evidentiary weight claim that the Commonwealth did not meet its burden of proving beyond a reasonable doubt that appellant did not act in self-defense. Finding no merit to any of these contentions, we affirm.

We will treat each allegation of ineffectiveness seriatim, keeping in mind the oft-repeated standard for assessing claims of ineffective representation. First, it must be determined whether the claim has arguable merit. If so, the inquiry then proceeds to ascertaining whether and how counsel’s dereliction prejudiced his client. Once a court is able to conclude that counsel’s choice had some reasonable basis designed to effectuate his client’s interest, this query ceases. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The law places the burden of demonstrating counsel’s ineffectiveness upon the defendant, since the law also presumes effective stewardship. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985).

Appellant’s initial claim of ineffectiveness is twofold. First, she alleges that counsel was derelict in failing to file a motion to suppress her purportedly inculpatory and involuntary statement given to Detectives Stotlemeyer and Amity because of her intoxicated state at the time of making her confession. However, nothing in the record is suggestive of her proffered incapacity. Detective Stotlemeyer testified that he detected a strong odor of alcohol about appellant. The record merely denotes that appellant told Detective Stotlemeyer that she had begun drinking at approximately 6:00 p.m. on the evening in question and that she had consumed, by the time of the subject incident, approximately between 8:30 and 8:45 p.m., three doubleheaders of straight gin (N.T. 134). This is not evidence of intoxication, see Commonwealth v. Kuhn, 327 Pa.Super. 72, 475 A.2d 103 (1984), and appellant has failed to supply any further substantiation for that conclusion. Common wealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980). Her confession given to Detective Stotlemeyer clearly recalls the events of that night, further diluting the validity of her claim. Id. Thus, since no basis exists on the record to support a motion to suppress her statement, counsel was not ineffective in failing to file this motion. Id.

The second prong of this attack contains two separate elements. The first relates to counsel’s alleged ineffectiveness in failing to object to Detective Stotlemeyer’s notes of appellant’s confession being marked as a Commonwealth exhibit. She claims that these notes are not embraced within the hearsay exception of past recollection recorded and that failure to object to the admission of the notes constitutes ineffective stewardship. The record shows that Detective Stotlemeyer, while testifying from memory of the contents of appellant’s oral statement, was asked by the trial court what epithet the victim had attributed to appellant when she offered to open another beer for him. Detective Stotlemeyer then asked the court if he could refer to the notes he took of appellant’s oral statement. The report was given to him for the limited purpose of recalling what the victim had called appellant. It was then admitted as the Commonwealth’s Exhibit ‘B’ without trial counsel’s objection.

Appellant relies on Commonwealth v. Canales, 454 Pa. 422, 311 A.2d 572 (1973), which held that a writing to refresh a witness’ recollection is admissible if that witness testifies under oath that he cannot recall from present memory the events recorded in the writing. In Canales, the witness, a police officer, testified from his present memory concerning the defendant’s oral confession made to him. Throughout, he kept referring to his notes made during the confession. The notes were later admitted into evidence. The Supreme Court concluded that this was error, as the notes did not qualify as past recollection recorded. Here, however, Detective Stotlemeyer told the court that he could not remember what the victim had called the appellant without reference to his notes. When given the notes, Detective Stotlemeyer used them for the limited purpose of responding to the court’s query. Thus, counsel could not be deemed ineffective for neglecting to object to evidence otherwise properly admitted. See Commonwealth v. Bright, 361 Pa.Super. 261, 522 A.2d 573 (1987). Moreover, and in any event, the notes admitted into evidence, from the testimony gleaned, are corroborative of appellant’s own trial testimony. Thus, appellant could not demonstrate, under the second step of the ineffectiveness analysis, that admission of these notes without objection prejudiced her in any way. See Commonwealth v. Pierce, supra.

This leads us directly into the second facet of appellant’s ineffectiveness attack regarding the admissibility of her confession. Appellant argues that the summation of her oral confession was impermissibly “sent out” with the trial judge, who was also the trier here, in violation of Pa.R. Crim.P. 1114 and that the trier would be inclined to give greater weight to the written summation, especially as it related to appellant’s statement that the gun was a .25 caliber automatic with a clip.

First, Pa.R.Crim.P. 1114 only relates to material which a jury is not permitted to have during its deliberations. Interestingly, however, this Rule allows the jury to take with it “such exhibits as the trial judge deems proper.” Id. Thus, had appellant’s trial been by jury, that deliberative body would have been permitted, at the trial court’s discretion, to take with it the summation of appellant’s oral statement.

The pertinent language of Pa.R.Crim.P. 1102(a) states:

Rule 1102. Procedure When Jury Trial is Waived.

(a) When a defendant waives a jury trial, the trial judge shall determine all questions of law and fact and render a verdict which shall have the same force and effect as a verdict of a jury.

From this, it stands to reason that a trial court, sitting as a trier of fact, is entitled to have in its possession the same documents which it may, in its discretion, send out with the jury. See Commonwealth v. Meadows, 232 Pa.Super. 292, 331 A.2d 827 (1974) (verdict rendered by judge sitting without a jury has the same force and effect as a verdict rendered by a jury), modified in other respects, 471 Pa. 201, 369 A.2d 1266 (1977).

Appellant further argues that Detective Stotlemeyer’s testimony of his summation that appellant stated that the gun was a .25 caliber automatic with a clip was prejudicial because appellant, in her testimony, indicated that she did not know the type of gun she had in her hand. This is a credibility question which the trier resolved in favor of Detective Stotlemeyer. While appellant stated at trial that she did not know the type of gun with which she shot the victim, she did testify that the gun fit her hand. The reasonable inference to be drawn from this testimony is the elimination of a gun larger than hand-size as the murder weapon here. Thus, appellant was not totally oblivious to the type of gun she had or that she held the weapon in her right hand and fired the fatal shot with it. This renders appellant’s claim of ineffectiveness based upon counsel’s neglect in objecting to the admission of the summation as an exhibit, the trial court’s consideration of the summation during its deliberation and the failure to object to the gun testimony meritless.

Appellant next assails counsel’s stewardship for not objecting to the insufficiency and the misleading nature of the jury waiver colloquy. The sufficiency argument is rooted in the claim that the “spirit” of the law evoked by our Supreme Court in Commonwealth v. E. Williams, 454 Pa. 368, 312 A.2d 597 (1973), was not fulfilled. E. Williams requires that the essential ingredients of a jury trial — that the jury must be composed of members of the community, that the verdict must be unanimous and that the defendant is to be permitted to participate in the jury selection — be explained to an accused who chooses to waive his right to a trial by jury as a necessary adjunct to a knowing and intelligent waiver. Appellant has no quarrel that the record here fulfills the E. Williams criteria. Rather, she argues that the “spirit” of E. Williams necessarily convokes informing an accused of the mercy dispensing powers of a jury. More specifically, this translates, for appellant, into the creation of an aura of empathy (or, more likely, sympathy) for her actions because of the victim’s history of crime and violence.

We have been unable to discover any appellate decision in this Commonwealth engrafting this caveat onto the law regulating jury trial waiver colloquies. Commonwealth v. E. Williams, supra, remains the law. In any case, the function of the jury, as we see it, is to decide a cause based upon the facts presented to it for its deliberation tempered by the trial court’s instructions on legal principles. The jury’s verdict is not a product of sympathy or empathy for either the accused or the victim. Consequently, we believe that any language in the objected-to colloquy touching upon a jury’s potential mercy dispensing predictions would have been erroneous and misleading to appellant. Since no reasonable basis existed for counsel to object to the trial court’s failure to advise appellant in this regard, he cannot be deemed ineffective for failing to object. See Commonwealth v. King, 317 Pa.Super. 196, 463 A.2d 1152 (1983). Moreover, nothing in the record supports appellant’s bald assertion that counsel advised her “that a jury trial was unnecessary” (Appellant’s Brief, p. 10) and that such advice was contrary to her wish to proceed to a jury trial. Her assertion in this regard is belied by the record responses she gave to the trial court during the waiver colloquy.

Appellant’s second level of attack upon the waiver colloquy raises counsel’s ineffectiveness for failing to object to the misleading and confusing manner in which the trial court informed appellant of the possible sentence she could receive in the event she were convicted of voluntary manslaughter, of which charge she was ultimately found guilty. Specifically, appellant argues that the trial court was required to inform and counsel did not object to failure to so inform appellant that she would be subjected to the imposition of a mandated minimum five-year prison sentence for the commission of an offense with a firearm pursuant to Section 9712(a) of the Sentencing Code, 42 Pa.C.S.A. § 9712(a). Appellant was sentenced pursuant to this section and, from this, she posits the contention that “had she known about the mandatory five year minimum [sentence,] she would not have waived her right to a jury [trial].” (Appellant’s Brief, p. 12).

Appellant’s argument fails for two reasons. First, it is belied by the requirements of Section 9712(b) of the Sentencing Code, 42 Pa.C.S.A. § 9712(b):

§ 9712. Sentences for offenses committed with firearms.
(b) Proof at sentencing. — Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The Court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

This plain language rebuts appellant’s argument that she had the right to be informed at the jury waiver colloquy stage of the proceedings of the applicability of Section 9712(a). Section 9712(b) unequivocally provides that notice of the applicability of the mandated penalty provision need only be given to a defendant after conviction. Secondly, the statute clearly points out that, even after conviction, the applicability of the mandatory penalty is not triggered until sentencing and then only if the Commonwealth is able to satisfy proof of visible possession of a firearm by a preponderance of the evidence. See Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), aff'd sub nom McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986); Commonwealth v. Michael, 352 Pa.Super. 345, 507 A.2d 1263 (1986).

Secondly, we are unable to glean from her argument what advantage, from the standpoint of the sentence here imposed, appellant could have garnered by electing to be tried by a jury. Had appellant been convicted of this same charge by a jury, it is difficult for us to perceive how this could have affected the sentence that she ultimately received. “The function of the jury is to determine guilt or innocence____ [T]he jury has nothing to do with the punishment of an offense____ [PJunishment is a matter solely for the court and not for the jury to know or consider during its deliberations.” Commonwealth v. White, 350 Pa.Super. 457, 458-59, 504 A.2d 930, 930 (1986); see also Commonwealth v. Waters, 334 Pa.Super. 513, 483 A.2d 855 (1984). We conclude that counsel could not be ineffective for failing to object to the colloquy under these circumstances, since any objection would have been without legal foundation.

Next, appellant contends that counsel tendered ineffective stewardship in failing to present testimony of appellant’s good character and lack of propensity for violence. Her argument in this regard is couched in the following manner:

Appellant made her counsel aware of several witnesses that were able and willing to testify that she had a reputation for péacefulness in the community. Calling such witnesses in her behalf is of arguable merit. An explanation for trial counsel’s failing to present character testimony is unascertainable from the record. It is submitted that a reasonable basis to forego such testimony exists neither in fact nor theory.

Appellant’s Brief, p. 14.

What exists in neither fact nor theory, however, is the identity of these presumed witnesses and the interest each unnamed witness would purport to advance in aid of appellant’s defense. The law is well-settled that a defendant must support typically vacuous allegations with substance —namely, the names and whereabouts of favorable witnesses and, most essentially, how the nature of their proposed testimony would have materially strengthened the accused’s defense. Commonwealth v. Clemmons, 502 Pa. 356, 479 A.2d 955 (1984). Logically, counsel’s failure to marshal evidence supportive of his client’s defense can only give rise to a colorable claim of ineffectiveness if such evidence initially had any existence at all. Commonwealth v. Stinnett, 356 Pa.Super. 83, 514 A.2d 154 (1986). Even if appellant had named specific witnesses, nevertheless, her failure to explain the manner in which the witnesses’ testimony would have advanced her cause is fatal to her assertion of ineffectiveness. See Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984).

Equally unavailing is appellant’s contention raising counsel’s ineffectiveness for failing to introduce the victim’s alleged criminal record to support her defense of self and others. Her own trial testimony was limited to general references that she had read about the victim and had heard people talking about him. She also stated that she premised her belief that he was violent on his past behavior at the bar where the shooting occurred (without specifying what the objectionable behavior was) and that she had read in the paper or had heard (appellant never clarified how she had received this purported information) that he was awaiting sentencing for a murder. However, nothing in appellant’s uncorroborated trial testimony on this matter warrants a conclusion that the victim did, indeed, have a criminal record or that he was presently in criminal difficulty.

It is true that when the defense is of self, the accused may introduce the victim’s criminal record to corroborate the accused’s knowledge of the victim’s violent temperament and to show that the accused feared for his life or to show the victim as the aggressor. Commonwealth v. Ignatavich, 333 Pa.Super. 617, 482 A.2d 1044 (1984), citing Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971). However, Ignatavich goes on to state that introduction of the victim’s violent propensities is limited to specific acts culminating in convictions. See also Commonwealth v. Russell, 326 Pa.Super. 346, 473 A.2d 1383 (1984) (defense of self permits presentation of evidence of victim’s violent acts limited, however, to specific acts of which defendant was aware). Moreover, her Brief is devoid of any explanation as to how introduction of the victim’s criminal record (indeed, if he had any) would have assisted appellant’s defense of self and others. Again, counsel’s failure to gather all evidence material to the defense of his client can only be deemed deficient if it is shown that such evidence actually existed. Commonwealth v. Stinnett, supra. Accordingly, this claim also fails.

Appellant also alleges defective, representation in regard to counsel’s failure to investigate the victim’s blood alcohol level at the time of death and his similar dereliction in not asking the pathologist who performed the autopsy upon the victim about this. She states in conclusory fashion, without supporting citation therefor, that “the blood alcohol level of the victim is always relevant, [and] it becomes vital in a case of self-defense or defense of others.” Appellant’s Brief, p. 17. Once again, appellant does not articulate her rationale for the above conclusion, nor could she, for the relevant statutory enactments, 18 Pa.C. S.A. § 505 (justification for self-defense) and § 506 (justification for defense of others), make no provision for the applicability or not of these defenses when the accused is confronted with an intoxicated aggressor who thereafter becomes the victim of a killing. Thus, counsel’s basis for not making inquiry concerning the victim’s purportedly intoxicated state was reasonable under the circumstances.

Moreover, we find no basis in the record for appellant’s conclusion here on appeal that the victim was intoxicated because his blood alcohol level at the time of death was .20 percent, which, she offers, was well above the legal limit. Even if this contention were supportably true, it fails for relevance to the matter at hand. The legal limitation referred to by appellant only becomes germane in the prosecution of a defendant for driving under the influence (75 Pa.C.S.A. § 3731). It has no application here.

Moving along to appellant’s next claim of ineffectiveness, we find that it raises the assertion that three witnesses who were not called would have offered purportedly exculpatory testimony on appellant’s behalf. One witness, a Ms. Johnson, according to appellant, would have testified that patrons of the bar where the shooting occurred usually carried guns in their possession and that she (Ms. Johnson) saw an unidentified man take the gun from appellant and leave it by the front door of the bar.

As to the first part of this claim, we are hard pressed to understand its contribution to appellant’s cause in defense to an incident occurring on one specific evening involving one particular patron of the bar. The second part of Ms. Johnson’s testimony, even if true, could have been interpreted to mean that the gun was removed from appellant’s hand by an unknown individual after the shooting and then left by the front door. This would have added nothing to appellant’s defense.

Appellant proposed that Ms. Johnson’s testimony, which would have been corroborated by another uncalled witness, a Ms. King, would have demonstrated that an unknown male left the bar with the gun. This, without further articulation, could have contributed nothing in the way of bolstering appellant’s defense of self and another, especially since she admitted shooting the victim, and three other witnesses corroborated this.

Another possible interpretation, even more harmful to appellant, would be that the victim took the gun at the front door and attempted to use it against Dan Marcucci, the bar owner, and appellant. Again, this theory, if presented, would have rendered her defense a nullity.

The purported testimony of the other two uncalled witnesses would have served no added purpose and would have been merely cumulative of testimony from other witnesses that they saw the victim throw bottles and threaten the owner of the bar. Thus, counsel cannot be held to ineffective stewardship for failing to put forth a meaningless defense or for not calling unhelpful or unfavorable witnesses.

The last in appellant’s litany of ineffectiveness claims— counsel’s alleged failure to argue defense of others — is frivolous. Appellant assumes, without more, that counsel did not raise this argument in closing because the closing arguments were not transcribed, and the trial court opinion only addressed defense of self. Contrary to appellant’s assertion that she was not given the benefit of the defense of others by counsel, the trial record discloses that counsel vehemently argued this defense on demurrer to the general charge of murder, albeit unsuccessfully. No supportable basis for this assertion otherwise appearing, the argument must fall.

Appellant also alleges that the verdict was against the weight of the evidence because the Commonwealth failed to meet its burden that appellant did not act in self-defense. This argument is waived for failure to raise it in post-verdict motions, Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); see also Pa.R.App.P. 302(a), and is not presented to us in the context of any extraordinary circumstance justifying our review of it on appeal. See cases collected at note 1, supra.

Judgment of sentence affirmed.

      . Appellant’s ineffectiveness claims are properly preserved for review. It is well-established that the ineffectiveness of prior counsel must be raised at the earliest stage of the proceedings at which counsel whose ineffectiveness is challenged no longer represents the defendant. Commonwealth v. Hennessey, 485 Pa. 647, 403 A.2d 575 (1979); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1978); Commonwealth v. Johnson, 347 Pa.Super. 93, 500 A.2d 173 (1985); Commonwealth v. Smith, 321 Pa.Super. 170, 467 A.2d 1307 (1983). In accordance with the foregoing principle, the earliest stage applicable to the instant proceedings was the appellate stage where present counsel assumed his stewardship.


author: CIRILLO, President Judge: KELLY, Judge,

text:
    542 A.2d 113
    COMMONWEALTH of Pennsylvania v. Raymond M. MONROE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1986.
    Filed April 26, 1988.
    Reargument Denied June 9, 1988.

      David M. McGlaughlin, Philadelphia, for appellant.

      Harriet R. Brumberg, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and MONTEMURO and KELLY, JJ.
   CIRILLO, President Judge:

Raymond Monroe appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following his conviction for aggravated assault, possession of an instrument of crime, and recklessly endangering the life of another person. Following denial of his post-verdict motions, Monroe was sentenced to three to ten years imprisonment for aggravated assault and to a consecutive term of imprisonment of one to five years for possession of an instrument of crime. This appeal followed.

Monroe raises three issues of error by the trial court: 1) failing to suppress identification of Monroe by the victim, after the victim had participated in allegedly suggestive pretrial photograph selection procedures; 2) refusing to allow admission of evidence of another witness’s inability to pick out Monroe’s photograph; and 3) allowing the Commonwealth to use all its peremptory challenges against the first seven black venire persons, thus allegedly creating a racially biased jury.

In a 1986 memorandum, a panel of this court affirmed the trial court judgment without considering the merits of the appeal. The court found that all three issues raised in the appeal were waived for lack of written post-trial motions, as no motions appeared in the record or docket entries. The Supreme Court of Pennsylvania granted allocatur and then remanded the case to the superior court for reconsideration on the merits.

We have now reconsidered the appeal and find it to be without merit. We therefore affirm.

This case arose from a June 25, 1979 knife attack on James Goosby in a Philadelphia movie theater. While using the men’s room there, Goosby was watched and closely followed by a man he subsequently identified as Monroe. At the exit of the men’s room, Goosby challenged and then struck Monroe. Monroe responded by taking out a knife and stabbing Goosby 37 times in the face, neck and body. The theater usher, Albert Crosby, came down nearby stairs, saw the fight, and went for help. Several minutes later, Crosby saw Monroe leave the theater.

One month later the victim Goosby identified Monroe’s photo from among eight photographs shown him by the police. Monroe was arrested and charged. During the jury trial, both Goosby and Crosby identified Monroe as Goosby’s assailant. He was subsequently found guilty of all charges brought against him.

The first issue raised is whether the trial court erred in allowing Goosby’s identification of Monroe. Monroe argues that Goosby’s in-court identification was so severely tainted by suggestive pre-trial police procedures that it should have been suppressed. Monroe bases this argument solely on the fact that, out of the eight photographs shown Goosby for identification of his assailant, Monroe was the only bald man.

This court has consistently held that the existence of one possibly suggestive element in an identification procedure does not automatically require suppression of the identification evidence obtained through that procedure. Rather, only if the totality of circumstances shows that the identification procedure was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” will the evidence be suppressed. Commonwealth v. Griffin, 271 Pa.Super 228, 233, 412 A.2d 897, 900 (1979) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)).

Factors relevant to determining the reliability of an in-court identification are:

the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation and the time between the crime and the confrontation.

Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

Here, the victim saw his assailant in the theater and in a well-lit men’s room prior to the attack, and exchanged words with him.

The stabbing was a frontal assault that enabled Goosby to observe the assailant at close range for several minutes. Goosby’s description of the assailant matched Monroe’s appearance. Moreover, Goosby was certain of his identification of Monroe throughout all court proceedings.

In addition, the suggestiveness of Monroe’s being the lone bald man shown in the photographs is itself minimal. At a suppression hearing, the judge noted the similarities of the men depicted in the photograph array, including the fact that several men besides Monroe had very short hair.

Given these circumstances, we reject the contention that Goosby’s selection of Monroe’s photograph was the result of a impermissibly suggestive police procedure. Monroe’s challenge to Goosby’s in-court identification must therefore fail.

Monroe’s second contention is that the trial court erred in not allowing the defense to cross-examine a prosecution witness, Albert Crosby, regarding his failure to identify Monroe’s photograph in a pre-trial proceeding. Monroe argues that the jury should have been allowed to assess the importance of that failure to identify.

The pre-trial proceeding referred to was one where, after Monroe’s counsel objected to Monroe being the only bald man shown, the top part of each photograph was “whited out.” Crosby was then shown the photographs and could not identify Monroe. The trial court subsequently ruled this procedure “deceptive” and concluded that introducing evidence of it into trial would lead to “irrelevant and unnecessary issues.” The trial court therefore prohibited introduction of the altered photographs or cross-examination of the witness on the subject.

It is well-settled that the extent of cross-examination is within the discretion of the trial court, which will not be overruled except for clear abuse of discretion or error of law. In setting limits, the trial court may consider the extent that a jury would be confused by testimony. Commonwealth v. Hammond, 308 Pa.Super. 139, 147, 454 A.2d 60 (1982).

There was clearly no such abuse of discretion or error here. The trial court’s ruling was very focused — it excluded a proceeding the court had determined to be misleading. In the full course of the trial, Monroe had ample opportunity to examine the witness Crosby regarding the basis and certainty of his in-court identification of Monroe.

Lastly, Monroe argues that the Commonwealth exercised its peremptory challenges during jury selection in a racially discriminatory manner and thereby deprived Monroe of his right to a fair trial. In the recent case Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the supreme court dealt with the problem of showing discrimination in prosecutorial use of peremptory challenges. There, the court identified three elements that, together, allow a defendant to establish a prima facie case of purposeful discrimination: 1) defendant is a member of a cognizable racial group and the prosecutor has used peremptory challenges to remove venire persons of that race; 2) defendant may rely on the fact that the practice of challenges lends itself to discrimination; and 3) defendant must show that this fact and any other relevant circumstances raise an inference that the prosecution used peremptory challenges to exclude venire persons on account of their race. This court has previously decided to apply Batson retroactively to cases pending on direct appeal where the issue of the Commonwealth’s exercise of peremptory challenges has been correctly preserved. Commonwealth v. McCormick, 359 Pa.Super 461, 476, 519 A.2d 442, 450 (1986).

Lacking any direct evidence of discrimination, Monroe relies on an inference of racial discrimination derived from the fact that the prosecutor peremptorily challenged the first seven black venire persons. Applying the Batson test outlined above, we find that the circumstances of the jury selection and case do not support such an inference.

While it is correct that Monroe, being black, is a member of a cognizable racial group and that members of that group were removed, there are other relevant circumstances to consider. There is evidence that the venire pool was substantially black, making it not unreasonable that the Commonwealth’s challenges removed black venire persons. The racial makeup of the jury itself was not preserved for the record. Questioning of the prospective jurors by the prosecutor was consistent throughout the selection process. Finally, as both Monroe and the victim were black, no racially significant issues were likely to follow in the trial, eliminating any clear motivation for discrimination by the Commonwealth. Taken together, these circumstances militate against an inference of racial discrimination in the Commonwealth’s exercise of peremptory challenges.

Judgment of sentence is affirmed.

KELLY, J., concurs.

KELLY, Judge,

concurring:

I join in the majority opinion. I note that I find this case distinguishable from that presented in Commonwealth v. McKendrick, 356 Pa.Super. 64, 514 A.2d 144 (1987) (per Olszewski, J.; McEwen, J., joining; Kelly, J., dissenting), in that appellant has not alleged (and the record does not disclose) that the peremptory challenges were utilized in a manner and setting which reasonably gives rise to an inference that discriminatory animus, rather than legitimate (non-discriminatory) trial tactics, motivated the use of peremptory challenges.


author: JOHNSON, Judge: ROWLEY, Judge,

text:
    542 A.2d 117
    Roger E. BUCHANAN and Dorothy E. Buchanan, His Wife, et al., v. CENTURY FEDERAL SAVINGS AND LOAN ASSOCIATION OF PITTSBURGH, et al. Appeal of Roger BUCHANAN, on Behalf of Himself and All Others.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1987.
    Filed April 27, 1988.

      Michael P. Malakoff, Pittsburgh, for appellant.
    Franklin Poul, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, OLSZEWSKI, DEL SOLE, KELLY, POPOVICH and JOHNSON, JJ.
   JOHNSON, Judge:

This case presents the question of whether a mortgagor’s advance payment to a mortgagee of money in escrow to be used to pay taxes and insurance premiums constitutes a trust. On the facts presented in this case, we find that a trust is created.

At the non-jury trial, the parties stipulated to the following facts. Roger and Dorothy Buchanan purchased a two family residential dwelling located on Dawson Street, Pittsburgh, Pennsylvania, which they bought as investment property. In financing the purchase they executed a mortgage on May 29, 1969 with Abbott Mortgage Corporation of Pittsburgh (Abbott). This mortgage was insured by the Federal Housing Administration (FHA) and executed on a printed form prepared by the FHA.

The Federal National Mortgage Association (FNMA) purchases mortgages insured by the FHA as well as mortgages guaranteed by the Veterans’ Administration (VA). FNMA does not originate mortgages and has no direct contact with any mortgagors. The purchase of mortgages by FNMA is normally pursuant to a selling agreement. The mortgages are serviced by mortgage banking institutions, generally the original mortgagees, in accordance with a standardized servicing agreement. On June 11, 1969 FNMA purchased the mortgage entered into between the Buchanans and Abbott. An assignment of mortgage was executed between Abbott and FNMA. Abbott remained the FNMA servicer of the mortgage. At some point Abbott changed its name to Galbreath Mortgage Company.

In addition to purchasing the Buchanan mortgage FNMA purchased FHA and VA mortgages in the 1960’s and 1970’s for residential properties located in Pennsylvania. These mortgages were issued on FHA and VA prepared mortgage forms. FHA regulations required that mortgagors, such as the Buchanans, pay, in addition to their monthly payments of principal and interest, an amount equal to V12 of the annual insurance premiums and tax assessments anticipated to be due on the mortgaged property. Such a requirement was also contained in the VA mortgage forms.

On FHA and VA mortgages for properties located in Pennsylvania FNMA has never paid interest or other compensation on the monthly payments of taxes and insurance.

The clause in the Buchanan mortgage which set forth the advance payment of insurance and taxes reads as follows:

THIS INDENTURE IS MADE, however, subject to the following covenants, conditions, and agreements and the Mortgagor covenants and agrees:
1.....
2. That in order more fully to protect the security of this mortgage, the Mortgagor, together with, and in addition to, the monthly payments of principal and interest payable under the terms of the note secured hereby, covenants to pay to the Mortgagee, on the first day of each month until the said note is fully paid, the following sums:
a) ....
b) A sum equal to the ground rents, if any, next due, plus the premiums that will next become due and payable on policies of fire and other hazard insurance covering the premises secured hereby, plus taxes and assessments next due on the premises covered hereby (all as estimated by the Mortgagee) less all sums already paid therefor divided by the number of months to elapse before one (1) month prior to the date when such ground rents, premiums, taxes and assessments will become delinquent, such sums to be held by Mortgagee in trust to pay said ground rents, premiums, taxes, and special assessments;____

FHA Form No. 2171 m, as revised July, 1966.

The case now before this Court is a class action which was commenced in 1971 by a complaint in equity. The plaintiffs in action are the Buchanans, and other individual mortgage borrowers who represent themselves and others similarly situated (hereinafter reference to the Buchanans shall be understood to include reference to the other plaintiffs, where applicable).

The defendants are FNMA and numerous banking institutions which issued mortgages to the Buchanans and other plaintiffs containing tax and insurance escrow provisions similar to the one set forth above. The Buchanans alleged that the advance payments of tax, insurance and assessments into escrow (hereinafter, advance payments or escrow payments) to the defendants pursuant to the mortgages are monies which defendants receive and hold as trustee for the Buchanans. The Buchanans alleged that in violation of a trustee’s fiduciary duties, defendants commingled their escrow payments and those of other borrowers with the defendants’ general funds. As a result of this, the Buchanans allege that defendants earned profits from the use and investment of these escrow payments in the operation of their business. Among other things, the Buchanans sought an accounting for all earnings which defendants derived from the use of these monies and sought to enjoin the future collection of such advance payments. An amended complaint and second amended complaint were filed.

The Court of Common Pleas of Allegheny County dismissed the complaints for failure to state a cause of action. On appeal, the Pennsylvania Supreme Court upheld the dismissal of a cause of action set forth under the Truth in Lending Act but in all other respects reversed the common pleas court and remanded the case. Buchanan v. Brentwood Federal Savings & Loan Assoc., 457 Pa. 135, 320 A.2d 117 (1974) (Buchanan I). The supreme court found that appellants pleaded sufficient facts to put at issue the creation of a trust. The court also found that on remand plaintiffs would be allowed the opportunity to prove their alternative theories of constructive trust and breach of implied contract.

On remand, the common pleas court certified the plaintiff class and established subclasses. The plaintiffs agreed to a proposed settlement with all defendants except FNMA. Following hearings the common pleas court disapproved the settlement. On appeal this Court found that the decision to refuse the settlement was manifestly unreasonable. Buchanan v. Century Federal Savings & Loan Assoc., 259 Pa.Super. 37, 393 A.2d 704 (1978) (Buchanan II). The Court reversed the lower court and ordered the acceptance of the amended settlement.

In 1980 plaintiffs filed a motion for partial summary judgment against the remaining defendant FNMA. The common pleas court granted the motion finding that a trust relationship existed between plaintiff class members and FNMA. The court held that it was clear that FNMA is a trustee of the advance payments and that FNMA commingled and used the funds for its own benefit, thus breaching FNMA's fiduciary duties. On appeal this Court, in a three judge panel, reversed. Buchanan v. Century Federal Savings & Loan Assoc., 306 Pa.Super. 253, 452 A.2d 540 (1982) (Buchanan III). The court held that the absence of an agreement to pay interest did not necessarily mean that a trust relationship was intended. Accordingly, the court remanded the case for trial as there remained a genuine issue of material fact about whether or not the parties intended to enter a trust relationship. The court noted that Buchanan I did not preclude a finding of a debtor-creditor relationship.

On remand the trial court found in favor of FNMA. The court concluded that the Buchanans failed in their burden of proving the creation and existence of a trust between themselves and Abbott. As FNMA was an assignee of Abbott, likewise no trust was established as to them. The court stated that the Buchanans abandoned the claims of constructive trust and implied contract at trial by not presenting any evidence in support of these claims.

The Buchanans, in the instant action, appeal the finding that no trust was established. Following our decision in Buchanan III the question which the trial court was to determine, and the question that is before us now, is whether or not the parties intended to enter into a trust relationship.

In Buchanan III we granted the Buchanans an opportunity to prove at trial that the parties intended to enter into a trust relationship. We found that summary judgment was an improper vehicle by which to dispose of this issue. Since Buchanan III the parties have proceeded to trial and introduced evidence concerning the issue of intent. We have reviewed that evidence, as well as the parties’ briefs, the extensive record and numerous prior opinions in this case, along with this Commonwealth’s law in' the area. We disagree with the trial court’s ruling. We find that the Buchanans sufficiently met their burden of proof and established that the parties intended to enter into a trust relationship. Accordingly, we reverse the trial court’s order and remand this case for determination of the damages issue.

In Buchanan I our supreme court set forth the law to be applied in determining the issue before us. The court stated:

It is well settled that no particular form of words or conduct is necessary to create a trust. Provident Trust Co. v. Lukens Steel Co, 359 Pa. 1, 58 A.2d 23 (1948); Bair v. Snyder County State Bank, 314 Pa. 85, 171 A. 274 (1934); Restatement (Second) of Trusts § 24 (1959). Neither the presence nor the absence of the words “trust,” “trustee,” or “beneficiary” is determinative of an intention to create a trust. Thompson Will, 416 Pa. 249, 254-255, 206 A.2d 21, 25 (1965); 1 A. Scott, Law of Trusts § 24 (3d ed. 1967). The question is whether the agreements taken as a whole evidence an intent by appellants “to impose ... upon a transferee of the property equitable duties to deal with the property for the benefit of another person.” 1 A. Scott, Law of Trusts § 24, at 192 (3d ed. 1967); see Restatement (Second) of Trusts § 2 (1959). “To determine whether there is a trust we are to look, not at the title given, but at the powers and duties conferred.” Sheets’ Estate, 52 Pa. 257, 266 (1866). See McClain Estate, 435 Pa. 408, 411, 257 A.2d 245, 246-247 (1969); Schuldt v. Reading Trust Co., 270 Pa. 360, 363-364, 113 A. 545, 547 (1921).
This Court in Vosburgh’s Estate, 279 Pa. 329, 123 A. 813 (1924), provided specific guidance for the resolution of the question whether the parties intended to create a trust. There we held that
“[a] trust is a relation between two persons, by virtue of which one of them as trustee holds property for the benefit of the other. The term ‘trust’ is a very broad and comprehensive one. Every deposit is a trust, except possibly general bank deposits; every person who receives money to be paid to another or to be applied to a particular purpose is a trustee____”
Id., 279 Pa. at 332, 123 A. at 815. Accord, In re Interborough Consol. Corp., 288 F. 334, 347 (2d Cir.), cert. denied, 262 U.S. 752, 43 S.Ct. 700, 67 L.Ed. 1215 (1923); Andrew v. Union Savings Bank & Trust Co., 220 Iowa 712, 715, 263 N.W. 495, 497 (1935); Carpenter v. Suffolk Franklin Savings Bank, 362 Mass. 770, 291 N.E.2d 609 (1973). See 1A. Scott, Law of Trusts § 24, at 192 (3d ed. 1967).

Buchanan I, 457 Pa. at 143-44, 320 A.2d at 122-23. In concluding its discussion of the express trust issue the court stated:

Finally, the legal effect of the parties’ undertaking must be determined by viewing an agreement in its entirety.

Buchanan I, 457 Pa. at 150, 320 A.2d at 125-26.

Looking at the mortgage agreement as a whole we believe it evidences an intent that the advance payments are to be held in trust by the mortgagee. The express language used in the form, drafted by FHA, is that these advance sums are “to be held by Mortgagee in trust to pay ground rents, premiums, taxes, and special assessments----”. This Court will not ignore this express contractual language. While we are aware that the mere presence of the words “trust” and “trustee” is not determinative of an intention to create a trust, neither are these words irrelevant or to be accorded no weight.

In drafting its mortgage form FHA chose to include the above-quoted language. The Buchanans, who were represented by counsel in the transaction, manifested their agreement with the terms of the mortgage by signing the indenture. There is nothing to suggest that the use of the word “trust” was in any way an accident or oversight. Judging from the completeness and precision of the remainder of the agreement, the inclusion of the word was intentional. What FNMA asks this Court to do is to conveniently ignore this language now, while presumably leaving the other rights and obligations of the agreement intact and enforceable. This we will not do.

Viewing the agreement in its entirety the procedure established by the mortgage is that mortgagor will pay mortgagee the advance sums. The mortgagee will hold these sums to pay the taxes, assessments, premiums, etc., on the subject property. These are the powers and duties explicitly set forth in the agreement. The clear import of these powers and duties is that mortgagee is equitably bound to deal with the advance sums for the benefit of mortgagor, that is, to hold the sums to pay the taxes, etc. Mortgagee is not free to do with the sums as it pleases but is bound to apply them as provided.

Additionally, the agreement does not provide that interest was to be paid on the advance sums. In Buchanan I, supra, the supreme court explicitly directed that this fact be considered in determining the issue before us. That no interest was being paid on the escrow monies held by mortgagee may evidence a trustee-beneficiary relationship. Buchanan I, supra. In the context of the agreement before this Court we find the absence of interest is one of the facts which evidences a trust relationship. When the Supreme Court discussed the absence of interest factor, it directed attention to comment (g) of the Restatement (Second) of Trusts § 12. That comment states in part:

Manifestation of intention. If one person pays money to another, it depends upon the manifested intention of the parties whether a trust or debt is created. If the intention is that the money shall be kept or used as a separate fund for the benefit of the payor or a third person, a trust is created. If the intention is that the person receiving the money shall have the unrestricted use thereof, being liable to pay a similar amount whether with or without interest to the payor or to a third person, a debt is created.
If there is an understanding between the parties that the person to whom money is paid shall pay “interest” thereon (at a fixed or at the current rate, and not merely such interest as the money, being invested, may earn) the relationship is practically always a debt and not a trust. Interest is paid for the use of the money, and if the payee pays interest he is, in the absence of a definite understanding to the contrary, entitled to use the money for his own purposes. It is theoretically possible, of course, for a trustee to pay “interest” from his own funds, but in the absence of a clear agreement to that effect such an intention would not be found.

Restatement (Second) of Trusts § 12, comment (g) (1959). Here the mortgagee was not obligated to pay interest on the advance sums. Had interest been required, this may have suggested a debt relationship. Considering the language of the agreement and the purpose for the payments the absence of interest is one more factor suggesting a trust relationship.

Viewing the agreement in its entirety we conclude that the mortgage agreement established a trust relationship between mortgagor and mortgagee with respect to the advance tax and insurance payments. The commingling of these funds by FNMA and the use of the funds as working capital to generate income was a violation of the fiduciary duty it owed mortgagor.

We reverse the order of the trial court and remand for a determination of the damages issue.

Order reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

ROWLEY, J., files a dissenting opinion in which BROSKY, J., joins.

ROWLEY, Judge,

dissenting:

I respectfully dissent.

In Buchandn III, this Court vacated a summary judgment which was entered by the trial court on the ground that a trust relationship existed between the class members and Federal National Mortgage Association. The panel specifically noted that the trial court’s decision to grant summary judgment was based on several factors including but not limited to: 1) the fact that the words “to be held ... in trust” in the agreement strongly indicated that a trust was contemplated; 2) that in Buchanan I the Supreme Court had determined that although the use of the word “trust” in the mortgage agreement is not determinative of the intent to create a trust, an intent to create a trust was manifested by the provisions of the agreement transferring property with directions that the transferee deal with the property for the benefit of another; and 3) the factors enumerated in Comment (g) of the Restatement (Second) of Trust, § 12 with regard to whether or not a trust is contemplated when interest is not paid on money deposited with another as security.

The panel concluded that the trial court misinterpreted Buchanan I, and that all the Court held in that case was that the plaintiffs should have the opportunity at trial to present evidence establishing that a trust, and not a debt, was created; that the absence of an agreement to pay interest was not a crucial factor, but only a “significant” one; and that there were factors from Comment (g) of the Restatement (Second) of Trusts, § 12 which the trial court did not consider, and that the trial court failed to mention Comment (b) of the Restatement (Second) of Trusts § 12 which was “more nearly on point.” Buchanan III, 306 Pa.Super. at 261, 452 A.2d at 544. In vacating the summary judgment and remanding, the panel in Buchanan III stated:

Because Buchanan I does not preclude the finding of a debtor-creditor relationship, and because we hold that the absence of an agreement to pay interest does not necessarily mean that a trust relationship was intended, there remains as a genuine issue of material fact whether or not the parties intended to enter into a trust relationship.

Id.

It seems apparent from the panel decision in Buchanan III that the court held that summary judgment could not be entered because there was a factual question concerning the intent of the parties to establish a trust, which question could not be resolved as a matter of law by applying principles of law to the written mortgage agreement, and it was necessary to remand for the presentation of evidence as to the intent of the parties.

Upon remand, a trial was held following which the court determined that the evidence showed among other things that: 1) it was the standard practice in the industry for mortgagees to require mortgagors to make advance payments for taxes and insurance, but not to compensate the mortgagors for the advance payments; 2) that the mortgagors did not examine the mortgage to determine whether or not they would have to pay monthly sums for taxes and insurance; 3) that the mortgagors had no recollection of the substance of any of their discussions concerning the terms of the mortgage with counsel; and 4) that the mortgagors never discussed the terms of the mortgage with the mortgagee. Thus there was no evidence introduced at the trial which was not already in the record when the motion for summary judgment was filed to indicate that there was an intention to create a trust.

In the present case, by virtue of Buchanan III, it is the “law of the case” that whether or not the parties intended to create a trust is a factual determination which cannot be ascertained as a matter of law. Because the evidence introduced at trial which was not available for the court’s consideration on the motion for summary judgment does not show that the parties intended to create a trust, the adjudication of the trial court following trial that there was not a trust relationship, should be affirmed. The majority’s determination in the instant appeal that there was a trust relationship is premised exclusively on the terms of the mortgage agreement itself. Since in Buchanan III the court held, as the law of the case, that the intention of the parties to establish a trust relationship could not be determined as a matter of law from the terms of the mortgage agreement itself, the majority’s decision in the present case is contradictory with Buchanan III.

Upon remand, and pursuant to the express instructions of the Court in Buchanan III, the trial court held a hearing and thereafter found as a fact that a trust relationship had not been established.

The scope of appellate review in equity cases is quite clear. A chancellor’s findings of fact, when approved by a court en banc, have the force and effect of a jury verdict and will not be disturbed on appeal if supported by adequate evidence. [Citation omitted.] However, the chancellor’s inferences and conclusions which are drawn from the facts, and the application of the law are always subject to review. [Citations omitted.]

McDole v. Duquesne Brewing Company of Pittsburgh, 281 Pa.Super. 78, 83, 421 A.2d 1155, 1158 (1980); quoting from Philadelphia Fresh Food Terminal Corporation v. M. Levin and Company, 239 Pa.Super. 287, 292, 361 A.2d 886, 889 (1976). My review of the record of the trial following Buchanan III shows that it supports the trial court’s factual determination that a trust relationship was not established. Therefore, in my opinion it is not appropriate to reverse the factual determination of the trial court. I would affirm the judgment on the trial court’s opinion.

BROSKY, J., joins the dissenting opinion by ROWLEY, J.

       That no interest was paid on the monthly payments is a circumstance to be considered by the trial court on remand. This Court has stated that the "imposition [of interest on money held by a bank] implies a debtor-creditor and not a trustee-beneficiary relation." Bair v. Snyder County State Bank, 314 Pa. 85, 90, 171 A. 274, 275 (1934). The absence of interest being paid on the escrow monies held by mortgage lending institutions may evidence a trustee-beneficiary relationship. See Barr v. Luckenbill, 351 Pa. 508, 511, 41 A.2d 627, 628-629 (1945); Restatement (Second) of Trust § 12, Comment g, at 35-36 (1959); 1 A. Scott, Law of Trusts § 12.2 (3d ed. 1967); Wilbur Trust Co v. Knadler, 322 Pa. 17, 20, 185 A. 319, 321 (1936); Pittsburgh National Bank of Commerce v. McMurray, 98 Pa. 538 (1881).