author: BROSKY, Judge:

text:
    467 A.2d 1336
    William J. MOORE and Jeannette P. Moore, Peter Paige and Shirley Paige, John Thompson and Nettie Thompson, Theodore Andrews and Doris Andrews, William Lamison and Clara Lamison, Allan Bailey and Caroline Bailey, Appellants, v. GEORGE HEEBNER, INC., Heebner Construction Co., Russell H. Richardson, Albert E. Richardson and Delaware County Industrial Development Authority.
    Superior Court of Pennsylvania.
    Argued May 18, 1983.
    Filed Nov. 18, 1983.

      James P. Gannon, Media, for appellants.
    Owen W. Nash, Media, for Heebner, etc., appellees.
    Mary Kathleen Eads, Media, for Richardson, appellees.
    George J. McConchie, Media, for Delaware, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   BROSKY, Judge:

This appeal is from a non pros or dismissal for failure to prosecute. Consequently, appellant raises only one issue: whether that non pros was properly granted. Upon consideration we conclude that it was and, accordingly, affirm.

Procedural History

The relevant procedural history is as follows. Appellant brought suit in February of 1973. Appellee Richardson filed an answer in April of 1973. On October 21, 1976 appellant’s first counsel withdrew his appearance. Appellee Richardson filed an amended answer in February, 1977. Preliminary objections were filed by appellee Delaware County Industrial Development Authority (D.C.I.D.A.) on April 12, 1977, followed by Supplemental Preliminary Objections on the next day. On July 7, 1977 appellant’s second counsel withdrew his appearance. The next action in the case was more than three years later. On August 28, 1980 appellant filed a petition for extension of time within which to file a certificate of readiness. Appellee D.C.I.D.A. filed an answer to that petition on October 1, 1980 and appellee Richardson filed a motion to dismiss on the fifteenth of that month. An order extending the time to file a certificate of readiness until November 30, 1980 was filed twelve days earlier. Such a certificate was filed on December 9, 1980. Again there are no docket entries until appellant’s counsel entered her appearance on August 21, 1981. Around this time a conference was held at which the Court indicated it was going to dismiss the Complaint for failure to prosecute. This was not filed, however. Notwithstanding this, a petition for reconsideration was filed and, on November 16, 1981, dismissed. This appeal followed.

Standard of Review and Test

At the outset it is necessary to note the applicable standard of appellate review.

It is well settled law that the question of granting a non pros, because of the failure of the plaintiff to prosecute his action within a reasonable time rests within the discretion of the lower Court and the exercise of such discretion will not be disturbed on appeal unless there is proof of a manifest abuse thereof.

Gallagher v. Jewish Hospital Assn., 425 Pa. 112 at 113, 228 A.2d 732 at 733 (1967).

Then the standard which the court below was to have applied must be quoted so that we can determine whether the court below abused its discretion.

The circumstances under which this discretion ■ may properly be exercised by a Court below have often been set forth. A Court may properly enter a judgment of non pros, when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses.

James Bros. Lumber Co. v. Union Banking & Trust Co. of Du Bois, 432 Pa. 129 at 132, 247 A.2d 587 at 589 (1968).

Diligence

On this element appellant argues that the onus was on the appellee who made the preliminary objection to list it for argument. From this he concludes that he did not delay the case and, even if he did, that the appellee acquiesced in that delay. Finally, appellant states that the court below misplaced its reliance on the fact that appellant had conducted no discovery. We find these arguments unconvincing.

The duty, therefore, is clearly on the appellant to proceed with his cause of action and he, not the appellee, should bear the risk of not acting within a reasonable time.

Kennedy v. Bulletin Co., 237 Pa.Super. 66 at 71-2, 346 A.2d 343 at 346 (1975). When this duty is viewed in light of the long term lack of progress in the case, it is clear that this requirement, at least, was met.

Reason

On this second element appellant argues that a compelling reason for the delay is to be found in the fact that four different counsel have represented him in this case.

In support of this argument appellant quotes Manson v. First National Bank in Indiana, 366 Pa. 211 at 217-8, 77 A.2d 399 at 402-3 (1951).

It also appears that much of the delay in the present instance was due, not to plaintiffs themselves, but to the procrastination of their counsel, — a fault not wholly uncommon, perhaps, in the legal profession. The theory on which a non pros is entered is that, owing to the lapse of time, the plaintiff has presumably abandoned the action, but in the present case it appears that plaintiffs were éxtremely eager to proceed with the suit and from time to time kept bombarding their counsel with inquiries as to why the proceedings were allowed to lag. While, generally speaking, a litigant is bound by the actions or inactions of his counsel, there is authority for the proposition that when a plaintiff places his case in the hands of reputable counsel he will not be turned out of court if the delay complained of was almost entirely on account of neglect or oversight of his counsel...

Taken on its face, this quotation would appear to mandate our deciding this case in appellant’s favor. Indeed, it would seem to require that a non pros never be entered if only counsel alleges his own inadvertence or neglect.

However, another, superficially inconsistent line of cases also appears. Hale v. Uhl, 293 Pa. 454 at 458, 143 A. 115 at 116 (1928); Brigham v. Eglin’s of Philadelphia, Inc., 406 Pa. 99 at 101, 176 A.2d 404 at 405 (1962). In these cases it appears that the neglect or inadvertence of counsel does not constitute a reason for avoiding a non pros.

In the face of these apparently irreconcilable cases, Judge Cercone, of this Court, authored an opinion which clarified the law in this area. Dupree v. Lee, 241 Pa.Super. 259 at 265-6, 361 A.2d 331 at 331-5 (1976).

In so holding we are not unmindful of the line of cases which allow for the vacating of a non pros or the opening of a default judgment where the reason for the non pros or default judgment is merely mistake, oversight or neglect of counsel, (citations omitted).
These cases, however, do not support a blanket rule that all judgments of non pros can be vacated simply by an admission of counsel that he was negligent. Such a rule would allow the purpose behind a non pros to be easily circumvented. If counsel’s mistake, oversight, or neglect is to be a reason to vacate a non pros, that mistake, oversight or neglect must be reasonably explained. (citations omitted).
As was stated in Hale v. Uhl, 293 Pa. 454, 458, 143 A. 115, 116 (1928), “If for such unsubstantial reasons a salutory rule of court could be set at naught, it would be useless, and a defendant would be unable to protect himself from intolerable delays.” If counsel’s explanation or excuse for his mistake, oversight, or neglect, is reasonable, then the second criteria for opening a non pros will be met and the non pros may be vacated. However, if counsel merely states that he was negligent without offering a reasonable explanation or excuse, we are left with no alternative but to refuse to vacate the non pros. The argument that refusing to vacate a judgment of non pros punishes the plaintiff for his counsel’s negligence is not supported by decisional law when counsel’s negligence is not reasonably explained. There must be some point at which our courts must refuse to accept an attorney’s negligent representation of his client when it interferes with the orderly administration of justice.

Applying this justice-oriented standard to the case before us, we hold against appellant. After alleging the neglect of prior counsel, appellant does not go on to offer a reasonable explanation for that neglect. Merely because four counsel are involved, rather than one, does not obviate the need for such an explanation.

Prejudice

This third and last element is also not met. Appellee placed on the record, through affidavits, a long series of evidentiary difficulties which they would face as a consequence of the delay. This alone would justify the lower court’s refusal to vacate the non pros.

We do. not construe the element of prejudice to the defendant to be limited to the death or absence of a material witness or the disappearance of a record, as the plaintiff argues, but believe it includes any substantial diminution of defendants’ ability to present factual information in the event of trial which has been brought about by plaintiff’s delay.

American Bank and Trust Co. of Pennsylvania v. Ritter, Todd and Haayen, 274 Pa.Super. 285 at 288-9, 418 A.2d 408 at 410 (1980).

For all of the foregoing reasons, the order declining to vacate the non pros is affirmed.

      . In this line see also Kulp v. Lehigh Valley Transit Co., 81 Pa.Super. 296 at 299 (1923); White v. Alston, 231 Pa.Super. 438 at 442, 331 A.2d 765 at 767 (1974).


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    467 A.2d 1339
    COMMONWEALTH of Pennsylvania v. William J. BASTONE, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 27, 1983.
    Filed Nov. 18, 1983.

      Douglas M. Johnson, Public Defender, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   ROWLEY, Judge:

Appellant was convicted, after a jury trial, of Possession of Weapons or Implements of Escape. Post-trial motions were filed and denied. Appellant was sentenced to two and one-half to five years imprisonment. This appeal followed.

Five issues are raised on appeal: 1) Did the court err in denying appellant’s motions for habeas corpus and to quash bills of information because appellant was not represented by counsel at his preliminary hearing?; 2) Did the court err in denying appellant’s demurrer to the charge of possession of weapons or implements of escape?; 3) Was the sentence unduly harsh and excessive under the circumstances of this case?; 4) Did the court err in not revealing the recommendation of the probation report to appellant’s counsel?; and 5) Did the court err in failing to place on the record the reasons for the sentence imposed?

Pa.R.Crim.P. 318(b) requires that, when a defendant seeks to waive the right to counsel at a preliminary hearing, the issuing authority shall ascertain whether it is a knowing, voluntary and intelligent waiver. In addition, the waiver shall be in writing.

The record in this case indicates the issuing authority did everything possible in attempting to comply with Rule 318. At the preliminary arraignment, she advised appellant of his right to have counsel at the preliminary hearing. She asked him if he would like to apply for a public defender. Appellant’s response to the judge’s questions was to completely ignore her. He not only refused to answer or to sign anything, he would not look at the judge and even turned his back on her. At the preliminary ’hearing, appellant was again advised of his right to counsel and was told that the case would be continued if he wished to apply for a public defender. Appellant’s response was again to totally ignore the judge.

We believe that appellant’s contemptuous behavior constituted a knowing, voluntary and intelligent waiver of counsel. To require a written waiver in a case such as this could create “a ‘Catch-22’ situation in that a ‘court-wise’ criminal defendant could continually appear in court without counsel on the date scheduled for his trial but refuse to execute a written waiver of his right to counsel making it impossible to proceed with his trial. Obviously, such a situation would render the judicial system a mockery.” Commonwealth v. Wentz, 280 Pa.Super. 427, 434, 421 A.2d 796, 800 (1980).

However, even if we were to conclude that Rule 318 had been violated in this case, such violation would be harmless error. When a Rule 318 violation occurs, relief is warranted only if appellant suffers actual prejudice as a result thereof. Commonwealth v. Carver, 292 Pa.Super. 177, 436 A.2d 1209 (1981). In this case, appellant has not alleged that any prejudice resulted from the absence of counsel at the preliminary hearing.

Appellant next claims that the court erred in overruling his demurrer to the charge of possessing weapons or implements of escape. The test to be applied in ruling on a demurrer to the evidence is whether the Commonwealth’s evidence and all reasonable inferences arising therefrom are sufficient to support a verdict of guilty beyond a reasonable doubt. Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977). 18 Pa.C.S.A. § 5122(a)(2) provides:

“An inmate commits a misdemeanor of the first degree if he unlawfully procures, makes or otherwise provides himself with or unlawfully has in his possession or under his control, any weapon.”

Appellant stipulated that he was an inmate at the State Institution at Graterford at the time of the offense, serving a life sentence for murder. He further stipulated that under the rules at Graterford, an inmate is not allowed to possess any implement of escape or any deadly weapon. The record reveals that on January 18, 1981, correctional officers at Graterford conducted a routine search of Cell 23. Appellant, the sole occupant of the cell, was lying on a mattress on the floor. Appellant was directed to stand in front of the door during the search. The officers discovered a slit in the mattress and removed from the slit a 13-inch knife. This evidence was more than sufficient to prove appellant’s guilt beyond a reasonable doubt.

The final three issues raised by appellant deal with his sentence.

We first note that the sentence is within the statutory limit and is not unduly harsh or excessive under the circumstances of this case.

The Commonwealth concedes, however, that the trial court failed to state reasons for the imposition of sentence on the record. See Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Appellant filed a timely petition to vacate or modify sentence, raising this issue. However, the court failed to correct the error. Therefore, we must vacate the Judgment of Sentence and remand the case for resentencing.

Since appellant will be resentenced, we will briefly mention the final issue raised in this appeal, concerning the recommendation of the probation office. A sentencing judge may not delegate the sentencing decision to any person or group. See Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980). Therefore, we see no reason for the probation office to make a sentencing recommendation. If such a practice is to be permitted, however, the recommendation should be disclosed to appellant’s counsel. We find no “extraordinary” circumstances which would justify nondisclosure of this information. See Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973).

Judgment of Sentence vacated and case remanded for resentencing. Jurisdiction relinquished.


author: WATKINS, Judge: BROSKY, Judge,

text:
    467 A.2d 1342
    Mary L. YEAKEL, Appellant, v. John DRISCOLL and Mary Driscoll.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1982.
    Filed Nov. 18, 1983.

      F. Laubner, Allentown, for appellant.
    Malcolm J. Gross, Allentown, for appellees.
    Before BROSKY, McEWEN and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Lehigh County, Civil Division, and involves plaintiff-appellant’s appeal of an order of court which dismissed her Complaint in Equity. The Chancellor’s decision was affirmed by the Court en banc after which plaintiff took this appeal.

Plaintiff and defendants were owners of adjoining parcels of real estate in the City of Allentown. Each party owned one-half of a double home located adjacent to one another. The double home was constructed during the 1930’s and contains a party wall separating the two homes together with rear porches which were separated by a cinder block wall. Having made plans to enclose their rear porch for energy conservation purposes, the defendants obtained the requisite building permit from the City of Allentown. The building permit required defendants to use a fire wall for that portion of the enclosure separating their property from that of the plaintiff. Two courses of decayed cinder block in the cinder block wall also had to be replaced. The fire wall between the properties was constructed by erecting it upon the cinder block wall which had previously existed between the rear porches. The work had commenced on August 30, 1979.

On September 6, 1979 plaintiff wrote a letter to a local newspaper complaining about the appearance of defendants’ work. On September 25, 1979 plaintiff’s attorney wrote to defendant complaining of their actions. By this time work on the wall had been completed. On October 30, 1979, the plaintiff filed her Complaint in Equity against the defendants alleging that the new fire wall encroached several inches onto her property and requesting the court to order the defendants to refrain from entering onto her property, to remove the wall, and, to enjoin defendants from interfering in any way with the plaintiffs’ use and occupancy of her property. After the defendants filed a timely Answer and New Matter to the Complaint and the plaintiff filed a Reply, the matter was heard by the court below on April 23, 1980. The hearing included a visit to the. premises of the parties’ by the Chancellor. Both parties agreed to the visit.

The Chancellor found that the defendant, John Driscoll, had discussed his plans with plaintiff’s son prior to commencing the work. Plaintiff’s son had owned plaintiff’s property from 1972 until 1976 when he conveyed it to plaintiff. Defendants did not know that he was not the present owner. The plaintiff’s son resided in plaintiff’s home with her. The Chancellor also found that although defendants did remove a wooden frame or lip attached to the old cinder block wall which had provided support for a door of plaintiff’s covering the steps at the rear exterior entrance to her basement, that defendant John Driscoll had obtained the approval of plaintiff’s son to do so. He also found that plaintiff’s son then extended plaintiff’s rear porch and constructed a cover and locking door at the rear exterior entrance to her basement and same were secured by attaching them to defendants’ concrete block wall. The Chancellor also held that the outer edge of defendants’ new fire wall extended onto plaintiff’s property for a distance of two inches on a skew approximately twelve (12) feet long from a point at the rear wall of plaintiff’s dwelling to another point on the property line. The construction was in conformity with all City Codes. The Chancellor then went on to find that defendants’ encroachment of a width of two (2) inches for twelve (12) feet constituted a “de minimus” or trivial one, applied the principal of “De minimus non curat Lex” to the case, and dismissed the plaintiffs complaint. Plaintiff appealed.

Plaintiff contends that she suffered real damages as a result of defendants’ encroachment. She argues that she had never received water in her basement prior to defendants’ work but that now, after a heavy rainfall, her basement becomes saturated with water. She attributes this condition to the defendants’ work. She also claims that she is less secure in her home now because her new rear cellar door is not as good as the old one. With regard to plaintiff’s first claim the Chancellor visited the premises and held that the evidence presented by her was insufficient to establish a nexus between her water problem and the defendants’ work. Our review of the record reveals that plaintiff did testify that she had not experienced the water problems she described prior to defendants’ work. It also reveals that she testified that defendant had changed the location of a drain pipe during the construction he undertook. However, no where is it established how any of this resulted in her water problems. In equity matters the scope of review for any appellate court is limited in that the Chancellor’s findings of fact which are confirmed by a court en banc are binding on appeal if supported by substantial evidence. Curtis v. Redevelopment Authority of Philadelphia, 482 Pa. 58, 393 A.2d 377 (1978). Nor is a Chancellor bound to accept the testimony of witnesses as true, even though it is uncontradicted. Sweigart v. Burkholder, 154 Pa.Superior Ct. 424, 36 A.2d 181 (1944). In our case the Chancellor accepted the plaintiff’s assertions that she received water in her cellar in October of 1979 after defendants’ had completed their work. We cannot, however, hold that the Chancellor was bound to accept plaintiff’s assertions to the effect that defendants’ actions caused her water problems particularly in light of her failure at trial to demonstrate exactly what defendant did to cause such problems.

The heart of the instant action concerns the application of the doctrine of “de minimus” to this case. The doctrine is set forth in the maxim, “de minimus non curat lex” which means that the law will not concern itself with trifles. More specifically it means that a court will not grant equitable relief to a plaintiff who seeks a decree which will do him no good but which will work a hardship on another. Bristol-Myers Co. v. Lit Brothers, Inc. 336 Pa. 81, 6 A.2d 843 (1939). As discussed above, the court found no nexus between the plaintiffs water problems and the defendant’s fire wall. Thus, the removal of the fire wall from the two inches of plaintiff’s property will not correct her water problem. Nor will the removal of the wall improve her security as the plaintiff’s son has constructed a new cellar door in place of the old one. Thus, the only benefit to be gained by the plaintiff is to preserve her exclusivity to her two inches of property by forcing defendant to remove the fire wall from its present location. The City Codes of Allentown require the construction of a fire wall in such circumstances to protect property owners on both sides of the. wall from a potential fire on the other side. Thus, we find that the court below did not commit reversible error when it weighed the equities involved in the case and decided that the removal or relocation of the wall (if that was possible) would do plaintiff no good and would work a hardship on another. The new wall replaced an old wall that had always been there. The new wall protects plaintiff, as well as, defendants. Such a wall was required by the City. Under these circumstances we find that the Chancellor did not err when he ruled that a two inch encroachment for a distance of twelve feet was subject to the “de minimus” maxim. Because of our disposition of this case we need not consider plaintiff’s other allegations of error.

Order affirmed.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent. The majority opinion would make the equitable principle of de minimis applicable to cases in trespass quare clausum fregit. This is, in my view, contrary to the established law in Pennsylvania. Further, it violates several critical policy considerations. I would reverse the order of the court below and order the wall removed from appellant’s land within a specified period of time.

The law in Pennsylvania on this subject dates back to the last century. In Pile v. Pedrick, 167 Pa. 296, 31 A. 646 (1895), the Supreme Court of this Commonwealth had before it a case legally identical to the one before us. There a wall was erected which encroached 1% inches onto the property of the adjoining landowner. In relevant part the opinion of the court states:

For one inch and three eighths the ends of the stones in the wall are said to project beyond the division line. The defendants have no right at law or in equity to occupy land that does not belong to them and we do not see how the court below could have done otherwise than recognize and act upon this principle. They must remove their wall so that it shall be upon their land.

Id., 167 Pa. at 300-1, 31 A. at 647.

In Pile there is no suggestion of any doubt as to the result. Nor should there have been. This was in the face of an argument made by appellant that the wall should have been left as it was — for its removal would work a greater injury than damages at law.

While I believe that Pile governs the case before us, thus removing from this court’s appraisal of its wisdom — I will briefly explore some of the other authority for this result and its underlying rationale.

Dean Prosser, perhaps the foremost authority on torts in twentieth century America, quoted in his hornbook the following statement. “... the common law, in considering liability for intrusions upon realty could not undertake to discriminate between the much and the little.” Prosser, LAW OF TORTS, 4th ed., (1971) at p. 63.

As in Pile this has been found to be the rule even where little or no damage was suffered. The paucity of damage was held to be an insufficient reason to deny a mandatory injunction. Blood v. Cohen, 330 Mass. 385, 113 N.E.2d 448 (1953). This rule was also not voided by the fact that the expense to defendant in removing the trespassing object would be disproportionate to the damage to the plaintiff. Lizzo v. Drukas, 333 Mass. 242, 129 N.E.2d 892 (1955). See also Geragosian v. Union Realty Co., 289 Mass. 104, 193 N.E. 726 (1935).

In another case directly on point, the Supreme Court of our sister state, Arkansas, has held that the de minimis principle has no application to an encroachment caused by a brick wall leaning over a property line. Fulks v. Fredeman, 224 Ark. 413, 273 S.W.2d 528 (1954).

Five distinct and independently adequate policy considerations support this line of thinking.

First, it has a preventive function. Acting against such unauthorized, (albeit spatially minimal), trespasses deters their future occurrence elsewhere. An unenforceable right soon ceases to be a right in any real-world sense. See generally, Morris, Punitive Damages in Tort Cases, 44 Harv.L.Rev. 1173 (1931).

Second, it promotes the lawful resolution of disputes by providing for appropriate economic reparations to the injured party — and, where economic reparation is insufficient, it affords the plaintiff the emotionally vital sense of vindication.

Third, it can be used to settle boundary disputes. See Pfeiffer v. Grossman, 15 Ill. 53 (1853) and Bragg v. Laraway, 65 Vt. 673, 27 A. 492 (1893).

Fourth, it prevents the defendant from unjustly benefiting at the expense of plaintiff. Justice requires no less, for the illegal appropriation of realty cannot be rewarded in a society that operates under the rule of law. J.H. Leavenworth & Sons v. Hunter, 150 Miss. 245, 116 So. 593 (1928). Thus, the plaintiff is left in at least as good a position as he was before the trespass.

Fifth, this rule provides an avenue through which an easement by prescription can be terminated. Pagenstecher v. Biasiolli, 267 S.W.2d 576 (Tex.Civ.App., 1954).

I reject the majority’s disposition of this case for these policy reasons. Case law in other jurisdictions supports this result. More importantly, governing case law in this jurisdiction compels this result.

I dissent.

      . I note that the encroachment in the instant case was two inches.


author: HESTER, Judge: SPAETH, Judge,

text:
    467 A.2d 1346
    COMMONWEALTH of Pennsylvania v. George A. GREEN, a/k/a Richard Green, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 7, 1983.
    Filed Nov. 18, 1983.
    Petition for Allowance of Appeal Denied Feb. 29, 1984.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   HESTER, Judge:

This appeal was taken from a judgment of sentence entered on June 12, 1980, in the Court of Common Pleas of Allegheny County, Pennsylvania. Appellant, George A. Green, a/k/a, Richard Green, was tried before a jury on charges of Robbery, Violation of Uniform Firearms Act and Possessing Instruments of Crime. A verdict of guilty was returned on Robbery. Motions for New Trial and in Arrest of Judgment were filed and denied. Appellant was sentenced on the Robbery Bill to a term of incarceration of not less than five years, nor more than twenty years.

The pertinent facts can be summarized briefly. On January 29, 1979, in late afternoon, appellant and his accomplice, Robert Lee Bryant, Jr., entered the Homestead Steelworkers Federal Credit Union Office on Grant Street, in the Borough of Munhall, County of Allegheny, Pennsylvania. While Bryant stood at the front door brandishing a sawed-off shotgun, appellant vaulted over the teller’s counter and removed cash and checks from three teller drawers totaling $2,673.08. Appellant and Bryant then ran from the scene. Appellant was not apprehended until two months later.

It is appellant’s first contention that the trial court erred in refusing to grant an evidentiary hearing on the prosecutor’s alleged use of peremptory challenges to unconstitutionally exclude black jurors. In Commonwealth v. Futch, 492 Pa. 359, 424 A.2d 1231 (1981), the Pennsylvania Supreme Court was called upon to review a lower court’s finding of the discriminatory use of peremptory challenges. In Futch, supra, the first venireman was a forty-seven year old black man who, following lengthy voir dire, was struck by the Commonwealth’s first exercise of its peremptory challenges. Defense counsel promptly noted for the record the exclusion of a black man, requested dismissal of the panel and demanded a hearing on whether the Allegheny County District Attorney systematically used peremptory challenges to exclude blacks from juries where the defendant is black.

Although the parties agreed in Futch, supra, that peremptory challenges are presumed to be exercised by the Commonwealth in order to compose fair and impartial juries, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), reh. denied 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442 (1965), they disagreed as to what burden of proof applied to rebut the presumption. The Commonwealth projected the burden of proof espoused in Swain v. Alabama, supra, i.e., that there must be proof of the prosecutor’s systematic use of peremptory challenges to exclude blacks from juries over a considerable period of time. Conversely, the defendant asserted that the less restrictive Wheeler-Soares standard was applicable. Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). The Wheeler-Soares standard requires proof of the discriminatory use of peremptory challenges only in the particular case at issue.

The Futch court refused to establish whether the Swain or Wheeler-Soares standard should apply in Pennsylvania. Instead, it simply held that the defendant failed under both standards to establish a prima facie case of the Allegheny County District Attorney’s discriminatory use of peremptory challenges. In so holding, the court noted:

The prosecutor’s peremptory challenge of one black prospective juror, the first and only venireman to be questioned on individual voir dire, accompanied by opinion evidence as to the practice of some individual assistant district attorneys in past trials, is insufficient under the standard of either Swain or of Wheeler and Soares to raise the inference of improper use of the peremptory challenge by the Commonwealth. Thus, it must be concluded that the trial court erred in finding that appellee had established a prima facie case of discriminatory exclusion of black prospective jurors. Commonwealth v. Futch, 492 Pa. at 368, 424 A.2d at 1235.

Despite appellant’s extensive effort to prove that the Allegheny County District Attorney utilizes peremptory challenges for discriminatory purposes , the Futch court found no such discriminatory practice. This is particularly significant in light of the fact that the Futch trial occurred one month following appellant’s trial; consequently, appellant would have us remand for an evidentiary hearing to review the alleged discriminatory practice of the Allegheny County District Attorney over the same period of time considered in Futch, supra. The lower court proceeding in Futch, supra, was lengthy and thorough, and the Futch court explicitly found no discrimination. We would be remiss, indeed, to remand for yet another hearing on an already-settled issue.

Absent a ruling from our Pennsylvania Supreme Court to the contrary, we are of the opinion that the presumption that a prosecutor is properly exercising his peremptory challenges is overcome only where the defendant demonstrates that the prosecutor, in a number of cases, unjustly excludes blacks from every jury. Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975); Commonwealth v. Green, 264 Pa.Super. 472, 400 A.2d 182 (1979); Commonwealth v. Jones, 246 Pa.Super. 521, 371 A.2d 957 (1977). Whether the prosecutor discriminated against blacks in the selection of the jury in the instant matter is relevant only in the context of determining the continuous, unjust exclusion over an appreciable period of time. Green, supra. It has been settled that the Allegheny County District Attorney does not, in case after case, exclude blacks; therefore, the lower court properly denied an evidentiary hearing.

Next, appellant argues that the prosecution incited the jury to deliberate with fear and bias. Specifically, appellant complains that the prosecutor’s reference to “society’s victims of crime” during closing argument was an attempt to undermine the presumption of an accused’s innocence and deprive him of a fair and impartial trial.

Although prosecutorial misconduct is never countenanced by the courts, it is not proper to order a new trial at every instance of a prosecutor’s improper remarks. Commonwealth v. Smith, 289 Pa.Super. 356, 433 A.2d 489 (1981). Only those remarks which preclude objective deliberation by implanting bias and hostility for the defendant in the jurors’ minds will result in mistrial. Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Smith, supra. We do not find the prosecution’s remarks to have risen to that level. Moreover, the objection was sustained and the jury was instructed to disregard the prosecution’s reference to victims of crime. Many prejudicial and inciteful remarks are effectively blunted with prompt and complete instructions from the court. Commonwealth v. Fultz, 478 Pa. 207, 386 A.2d 513 (1978).

Appellant also contends that it was error not to suppress the picture identifications of appellant as the result of the suggestive nature of the photo arrays. Two days following the incident, a special agent of the Federal Bureau of Investigation displayed the same eight photographs to three clerk-tellers of the Credit Union who were working during the robbery. Appellant’s photograph was not among the group of eight, and none of the three clerk-tellers selected the perpetrator’s picture.

On March 1, 1979, one month following the incident, the same clerk-tellers individually viewed six photographs, and the three employees each selected appellant’s photograph. These same six photographs were displayed to two customers of the Credit Union who were present during the robbery; they too selected appellant’s photograph.

According to appellant, these picture identifications were tainted due to the fact that three from the first photo array of eight photographs were among the six photographs in the second array. Presumably, these three photographs, as a result of being dismissed earlier, were certain to be eliminated upon a second cursory examination. Moreover, two of the remaining three photographs were of men wearing glasses, and five Commonwealth witnesses agreed that the perpetrator did not wear glasses. These facts, according to appellant, unjustly led the witnesses to choose his picture as a result of the suggestive array and not as a result of their independent recollections of the perpetrator at the scene.

Although an out-of-court identification may be suggestive, a subsequent in-court identification of an accused as the perpetrator is admissible provided it has a basis independent of the tainted identification. U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978); Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976). The Commonwealth must establish the independent basis for the in-court identification by clear and convincing evidence. Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976). In determining whether the Commonwealth has met this burden, and thereby overcame the illegality of the out-of-court identification, the following criteria are considered: 1) the circumstances under which the witnesses viewed the actual crime; 2) the witnesses’ degree of attention; 3) the accuracy of the description prior to the suggestive photo array; 4) the level of certainty in identifying the perpetrator; and 5) the lapse of time between the crime and illegal confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976).

In light of these criteria, the suggestiveness of the photo array is overcome by the independently-based, in-court identification. Commonwealth witnesses and Credit Union employees, Donna Morrison and Sharon Abrams, observed appellant’s full face for a few seconds immediately after he leaped over the counter to the employees’ side. Donna Morrison viewed his full face from a distance of one foot. Both women observed appellant remove cash and checks from three drawers. June Leeds, another clerk-teller, watched appellant during the progress of the robbery. The three women were consistent and reasonably accurate in their identification of appellant as 5' 2" to 5' 6", having a slight build, light Negro skin, wide nose and freckles and being in his early twenties. They also described him as wearing a tan, waist-length coat and a dark-colored tassel cap. The testimony of Roy Orluk and William Tomko, two United States Steel Co. employees who were transacting business at the scene on January 29, 1981, corroborated the description and characteristics testified to by the three employees.

The totality of the circumstances reveals that the witnesses were accurate in their description of appellant, solid in their convictions, attentive during the robbery and in excellent positions to note important details. These factors overcome any suggestiveness in the photo array. They also overcome the suggestive nature of appellant’s appearance at the preliminary hearing in handcuffs and leg shackles. For these reasons, we affirm.

Judgment of sentence affirmed.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

I read Commonwealth v. Futch, 492 Pa. 359, 424 A.2d 1231 (1981), differently than the majority does, and I am therefore unable to join that part of its opinion holding that Futch is dispositive of the question whether appellant was entitled to a hearing to determine whether the district attorney’s office used its peremptory challenges to exclude black jurors.

On voir dire in appellant’s case, two of the first twelve jurors selected and one of the first two alternates were apparently black. Appellant contends that the Commonwealth’s use of peremptory challenges to strike these three jurors denied him “the right to have any of his peers on the jury.” N.T. 2/27/80, 338. Appellant also argues that the trial court should have granted his request for an evidentiary hearing at which he planned to show “that there is a pattern among the District Attorneys in Allegheny County to remove black people from the juries in a case where there is a black defendant and a white victim.” N.T. 2/27/80, 338. See also N.T. 3/3/80, 6.

In its opinion supporting its denial of appellant’s request for a hearing to show a pattern of discrimination in the use of peremptory challenges by the district attorney’s office, the trial court concluded that appellant was not entitled to a hearing because in Commonwealth v. Futch, supra, “[o]ur Supreme Court has determined that there was no such violation by the Allegheny County Prosecutors in case after case, for the period of time during which this case came to trial. This case was tried in March, 1980; Futch came to trial in April, 1980.” Slip op. at 15. Although the majority agrees with the trial court’s reading of Futch, at 1348, in fact the Supreme Court made no such determination.

In Futch the trial court held a hearing in which counsel was permitted to introduce evidence as to the use of peremptory challenges to exclude black jurors. The trial court concluded that the defendant had established a prima facie case of discrimination by showing that some members of the district attorney’s office had used peremptory challenges in a racially discriminatory manner. See Commonwealth v. Futch, supra, 492 Pa. at 364, 424 A.2d at 1233. In reviewing the trial court’s decision, the Supreme Court summarized the evidence and the trial court’s ruling on it. However, the Court did not determine, as the majority concludes, that the defendant had not established a pattern of discrimination in the use of peremptory challenges. The Court expressed no view on this question. Instead, in reversing the trial court it held only that the defendant had not established that peremptory challenges had been used in a discriminatory manner “in the jury selection of his case.” Id., 492 Pa. at 366, 424 A.2d at 1234 (emphasis added).

Upon appellant’s request for a hearing to establish systematic discrimination, the Commonwealth noted that it had used all seven of its peremptory challenges, so that whites as well as blacks were removed from the jury panel. In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Supreme Court said:

In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court.
Id. at 221, 85 S.Ct. at 836.

See also Commonwealth v. Futch, supra, 492 Pa. at 365, 424 A.2d at 1223; Commonwealth v. Martin, 461 Pa. 289, 297, 336 A.2d 290, 294 (1975). The Commonwealth does not dispute appellant’s assertion that all blacks were removed from the jury panel. This fact alone, of course, did not establish discrimination; under Swain and Futch, the presumption is that in removing blacks, the Commonwealth was acting properly. However, appellant should have been granted the hearing he requested so that he could offer evidence to overcome the presumption. To be sure, the defendant in Futch had only recently made the same allegation of discrimination as appellant was making. However, because a defendant in one case fails to prove something is no reason why another defendant in another case may not try to prove it. If the trial court fears time-consuming and unnecessary repetition of testimony, it may require offers of proof, or stipulations may be resorted to. Here, the trial court simply denied appellant the opportunity to offer evidence; nothing in Futch supports that denial.

The judgment of sentence should be reversed and a new trial granted.

      . Defense counsel produced eighty-two witnesses, consisting of defense attorneys, former assistant district attorneys from Allegheny County, two trial judges and former criminal defendants.


author: CAVANAUGH, Judge:

text:
    467 A.2d 1351
    COMMONWEALTH of Pennsylvania v. Clarence ALFORD, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued April 13, 1983.
    Decided Nov. 18, 1983.

      Marc Ira Rickies, Langhorne, for appellant.
    Donald B. Corriere, District Attorney, Easton, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and POPOVICH, JJ.
   CAVANAUGH, Judge:

Appellant, Alford, was charged with two counts of aggravated assault and one count of resisting arrest. After a jury trial, appellant was found not guilty of both aggravated assault charges, but guilty of resisting arrest. From judgment of sentence, this appeal follows.

The events resulting in the charges against appellant took place on May 29, 1980, when he was involved in a near collision with a car operated by a young woman named Lisa Hall. Upset because his 16-month-old daughter was almost hurt by the sudden stop, appellant followed Ms. Hall’s car and pulled alongside when she parked in her neighborhood. He then began arguing with her about the incident, but left when neighborhood friends of the young woman appeared. A short time later, appellant returned to the area, and was met there by some friends of his who were equipped with large sticks.

Although'appellant was unable to relocate Ms. Hall, he became embroiled in an argument with another neighborhood resident. As a crowd gathered around the two and their argument escalated, police officers began to arrive at the scene. Officer Moll proceeded to separate the two men, while other officers attempted to quell other disturbances and prevent the uneasy crowd, which had grown to 80 or more people, from becoming violent. Commonwealth witnesses testified that at this point, appellant was instructed by an officer to remain in a specific area while other combatants were separated or arrested. Officer Storm testified that while in uniform, he approached appellant and repeatedly told him to stop yelling obscenities at the arresting officers and keep clear of the trouble area. He then testified that when appellant ignored these commands, he told appellant he was under arrest. Finally, Officer Storm testified that when he approached appellant to take him into custody, appellant flailed his arms and, legs in resistance and was only subdued after several other officers came to his assistance. Appellant, on the other hand, testified that neither Officer Storm nor any other officer ever said or otherwise indicated that he was under arrest, and that the officers had brutally and unnecessarily beat him.

Appellant first contends that since his disorderly conduct only amounted to a summary offense, that his warrantless arrest was not lawful under the Pennsylvania Rules of Criminal Procedure and, as such, could not support a charge of resisting arrest. While it is true that Chapter 50 of the Rules of Criminal Procedure generally mandates the use of citations, rather than arrest, in summary cases, an exception to this general principle is provided by Rule 51 A(3)(c). This subsection provides, that in non-traffic, summary cases,

[t]he defendant may be arrested without a warrant by a police officer for a summary offense, but only when (i) such arrest is necessary in the judgment of the officer, and (ii) the officer is in uniform or displays a badge or other sign of authority, and (iii) such arrest is authorized by law.

In Commonwealth v. Shillingford, 231 Pa.Super. 407, 332 A.2d 824 (1975), this court held that the Rules of Criminal Procedure allow warrantless arrest where the non-traffic “summary offense ‘involves a breach of the peace, endangers property or the safety of any person present.’ ” Commonwealth v. Shillingford, supra, 231 Pa.Superior Ct. at 410-11, 332 A.2d at 826. Although Shillingford involved a charge of underage drinking which did not involve a breach of the peace, the instant case clearly did involve both a breach of the peace and a danger to personal safety. We therefore hold that a warrantless arrest was lawful under the circumstances of this case, and that this aspect of the charge of resisting arrest was properly supported.

Appellant next contends that the lower court erred when it instructed the jury, as follows: “I charge you that the police officers were making or attempting to make a lawful arrest.” At trial, Officer Storm testified that he told appellant he was under arrest before appellant began struggling. Appellant, on the other hand, flatly denied that anyor had indicated in any way that he was under arrest.

Appellee cites the cases of Commonwealth v. Stortecky, 238 Pa.Super. 117, 352 A.2d 491 (1975), and Commonwealth v. Franklin, 248 Pa.Super. 145, 374 A.2d 1360 (1977), in support of the position that the lawful arrest requirement of the crime of resisting arrest is a question of law for the court to decide. However, these cases involve the question whether an arrest, which concededly occurred, was lawful. In the instant case, appellant’s testimony was that an arrest, lawful or not, had never occurred, since there had been no act indicating Officer Storm’s intention to take appellant into custody. Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982). While the lawfulness of an arrest is a question of law for the court, Commonwealth v. Stortecky, supra, where, as here, there is conflicting testimony concerning the very existence of an arrest, a question of fact for the jury has been raised, see Commonwealth v. Raynes, 6 D & C 3d 315 (1978). We, therefore, conclude that the lower court erred in instructing the jury that the officers were in fact making or attempting a lawful arrest and should have submitted the factual dispute, as to whether Officer Storm had indicated to appellant that he was under arrest, to the jury.

Accordingly, judgment of sentence is vacated, and the case is remanded for a new trial. Jurisdiction relinquished.

POPOVICH, J., dissented.

      . 18 Pa.C.S. § 2702(a)(3).

      . 18 Pa.C.S. § 5104.

      . Appellant was also charged, and, after trial, found guilty by the trial judge of two summary offences: 18 Pa.C.S. § 5503, disorderly conduct, and Easton City Ordinance § 701.02(k), peace nuisance.

      . 18 Pa.C.S. § 5104 provides:
      A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance, (emphasis supplied).

      . Shillingford was decided under a prior version of the Criminal Rules, which were revised in 1975. However, the official Comment to those revisions states:
      [t]he 1975 amendment was not intended to change the scope of an officer’s power of warrantless arrest in summary cases, but to make it clear that such arrest is permitted under the Rule only where such power exists at common law or under the laws of the General Assembly, (emphasis supplied).
      We also note that while no statutory grounds were asserted for the officer’s authority to arrest in this case, such power exists at common law where a breach of the peace is involved. Commonwealth v. Doe, 109 Pa.Super. 187, 167 A. 241 (1933).

      . See note 4, supra.

      . Appellant raises other issues which we find are either waived, or unnecessary for us to decide in light of our disposition.


author: CIRILLO, Judge:

text:
    467 A.2d 1353
    Miriam BULMAN and Paul Bulman, her husband, Appellants, v. Franklin J. MYERS, D.D.S.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1983.
    Nov. 18, 1983.
    Petition for Allowance of Appeal Denied March 12, 1984.

      Barbara Ellen Sarkin, Philadelphia, for appellants.
    Patrick O. McDonald, Philadelphia, for appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   CIRILLO, Judge:

In April, 1976 the appellant, Miriam Bulman, first came under the care of the appellee, Franklin J. Myers, D.D.S., for the care and treatment of impacted wisdom teeth. On or about April 14, 1976 the appellant was admitted to Jeanes Hospital for the purpose of surgically removing her maxillary and mandibular left and right third molars. Following surgery, which was performed by the appellee, the appellant suffered a marked loss of temperature, taste and pain sensations in her tongue and a slurring of speech.

The appellant brought a trespass action against the appellee, seeking damages for injuries sustained as a result of the surgery being performed without her “informed consent.” No assertion of negligent performance was ever advanced by the appellant. This matter was tried before the Honorable Harry A. Takiff and a jury on July 24 and 25, 1980. The appellee did not testify in his own behalf, although the appellant introduced sections of the appellee’s deposition transcript into evidence. Following a verdict in favor of the appellee, the appellant filed motions for a new trial and judgment n.o.v. These post-trial motions were subsequently denied and this appeal followed.

On appeal, the appellant avers that the trial judge erred in failing to charge the jury that a patient cannot formulate a valid, informed consent to a surgical procedure when disclosures of the risks of surgery are made by a nurse assistant and not by the operating surgeon. As regards this area of the law, our Court has stated:

The law in this Commonwealth is that where a patient is mentally and physically able to consult about his condition, in the absence of an emergency, his ‘informed consent’ ..., is a prerequisite to a surgical operation by his physician. Cooper v. Roberts, 220 Pa.Super. 260, 265, 286 A.2d 647, 649 (1971). Thus, ‘it will be no defense for a surgeon to prove that the patient had given his consent, if the consent was not given with a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results.’ Gray v. Grunnagle, 423 Pa. 144, 166, 223 A.2d 663, 674 (1966) (quoting R.E. Powell, Consent to Operative Procedures, 21 Md.L.Rev. 189 (1966)). The test of informed consent to be applied by the fact-finder is whether the physician disclosed all those facts, risks and alternatives that a reasonable man in the situation which the physician knew or should have known to be the plaintiff’s would deem significant in making a decision to undergo the recommended treatment. Cooper v. Roberts, supra [220 Pa.Super.] at 267, 286 A.2d at 650. In Bowers v. Garfield, 382 F.Supp. 503 (E.D.Pa.1974), the federal district court characterized this statement in Cooper as a codification of an “objective standard” of informed consent.

DeFulvio v. Holst, 272 Pa.Super. 221, 224-225, 414 A.2d 1087, 1089 (1979).

At trial, the appellant testified that any information that she received concerning possible complications came only from Mrs. Myers who was the nurse/assistant to her dentist/husband. The appellee, through his deposition, however, testified that he explained the risks of surgery to the appellant. In addition, Mrs. Myers testified in detail as to the substance of the pretreatment information she communicated to the appellant. The appellant asserts that only the appellee, as operating physician, can effectively relate all the information necessary for an informed consent. The appellant cites Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966), as support for this claim. However, as Judge Takiff expressed in his opinion:

Our reading of Gray discloses that the holding of the Court in that seminal case was based upon the scope of the information which plaintiff had been given, rather than the identity of the person making the communication. Plaintiff Gray testified it was his understanding that he would only be undergoing exploratory surgery when, in fact, the procedure undertaken was far more extensive and could and did result in paralysis. Gray held that where consent was obtained by one doctor, a written consent form routinely obtained and another person performed the surgery, the issue of the sufficiency of the information communicated upon which the patient’s consent was obtained was for the jury.

(Trial Court Slip Op. at 3).

We fully agree with the learned trial judge’s interpretation. In reaching this conclusion, we are guided by the words of our distinguished colleague, the Honorable J. Sydney Hoffman:

Gray and Dunham, make it clear that the primary interest of Pennsylvania jurisprudence in regard to informed consent is that of having the patient informed of all the material facts from which he can make an intelligent choice as to his course of treatment, regardless of whether he in fact chooses rationally.

Sauro v. Shea, 257 Pa.Super. 87, 94, 390 A.2d 259, 262-263 (1978).

Thus, in this instance, whether the information received by the appellant was sufficient for informed consent was a question of fact for the jury. The trial court properly rejected the appellant’s requested point for charge.

The appellant also contends that the lower court erred in refusing to charge the jury that the appellant was entitled to a negative inference based on the appellee’s failure to testify.

Generally, if a litigant fails to call a witness who presumably would support his allegation, the opposing party is entitled to have the jury instructed that it may infer that the witness, if called, would testify adversely to the party who failed to call him. Haas v. Kasnot, 371 Pa. 580, 92 A.2d 171 (1952); Moseley v. Reading Co., 295 Pa. 342, 145 A. 293 (1929); Abrams v. Crown, 178 Pa.Super. 407, 116 A.2d 331 (1955). But this rule is inapplicable if such witness is equally available to both sides of the litigation. Haas v. Kasnot, 377 Pa. 440, 105 A.2d 74 (1954); See also Davidson v. Davidson, 191 Pa.Super. 305, 156 A.2d 549 (1959). In other words, the inference is permitted only where the uncalled witness is peculiarly within the reach and knowledge of only one of the parties. Cf. 2 Wigmore, Evidence § 288 (3d ed. 1940).

Bentivoglio v. Ralston, 447 Pa. 24, 29, 288 A.2d 745, 748 (1972); See also: Commonwealth v. Newmiller, 487 Pa. 410, 409 A.2d 834 (1979).

During trial the appellee appeared in the court room from time to time. The appellants were free to subpoena the appellee to testify, or to call him as on cross-examination as an adverse witness when he was in the court room, or to introduce all of his pre-trial deposition testimony. The appellants, though, did not subpoena the appellee, nor call him as a witness while he was present, and only offered portions of his deposition testimony at trial. The appellee was equally available to both parties and was subject to service by the appellants. Therefore, under the circumstances of this case, we agree with the trial court that a jury instruction on negative inference was inappropriate.

      . Post-trial motions were not filed until August 25, 1981, well beyond the ten day period mandated by Pa.R.C.P. 227.1. However, the issues presented are devoid of merit so we address them for disposition.

      . Where the patient can be shown to be mentally and physically able to consult about his condition, in the absence of an emergency, the consent of that patient is clearly a prerequisite to any surgical procedure by his physician and any operation without such consent may be held to be a technical assault. Sauro v. Shea, 257 Pa.Super. 87, 390 A.2d 259 (1978).

      . Dunham v. Wright, 423 F.2d 940 (3d Cir.1970).


author: SPAETH, Judge: BROSKY, Judge,

text:
    468 A.2d 472
    COMMONWEALTH of Pennsylvania v. Jack D. McCASKILL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1983.
    Filed Oct. 21, 1983.
    Reargument Denied Dec. 29, 1983.

      Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   SPAETH, Judge:

This appeal is from an order denying a petition filed under the Post-Conviction Hearing Act, 42 Pa.C.S.A. §§ 9541-9551. Appellant argues that his trial counsel was ineffective in failing to call three alibi witnesses, and that he should therefore be granted a new trial. We have concluded: that counsel reasonably believed that one of the witnesses was dead; that the record is unclear whether the testimony of another of the witnesses would have helped appellant; but that appellant did show that the testimony of the remaining witness would have helped him. Since we can find no reasonable basis for counsel’s failure to call that remaining witness, we reverse and remand for a new trial.

On March 8,1974, a jury found appellant guilty of possession of and dealing in narcotic drugs. On July 25, 1974, he was sentenced to three to six years in prison. We affirmed the judgment of sentence on April 10, 1975, 232 Pa.Super. 747, 337 A.2d 872 (1975), and the Supreme Court denied allocatur on November 13, 1975, No. 529 Allocatur Docket 1975.

On January 16, 1980, appellant filed his petition for relief under the Post-Conviction Hearing Act. After a hearing, the lower court denied the petition, and this appeal followed.

Appellant was originally convicted on the strength of the testimony of Detectives James R. Ramsey and Bernard Ciganek of the Pittsburgh Police Department. Detective Ramsey testified that he purchased two half-spoons of heroin from appellant and Robert Baltimore on the evening of July 22, 1971. Ramsey said that at about 6:45 p.m. that evening he picked up appellant and Baltimore in the 900 block of Roselle Court in Pittsburgh, drove to the Hill District, where appellant and Baltimore left the car for a short time to get the heroin, and then returned, with appellant and Baltimore still along, to the 900 block of Roselle Court. It was there, he said, that he purchased the heroin from appellant and Baltimore. Ramsey estimated that he left appellant and Baltimore at the site of the sale at about 7:15 p.m. N.T. 47-50. Detective Ciganek testified that he was assigned to cover Ramsey, and had followed Ramsey’s car from Roselle Court to the Hill District and back. His testimony of what he observed corroborated Ramsey’s testimony. N.T. 99-104.

One of appellant’s arguments is that his trial counsel was ineffective in failing to look for Robert Baltimore, appellant’s alleged co-conspirator, so that he could be called to testify as an alibi witness. It will be convenient to consider this argument first, before we discuss the bulk of the testimony at the PCHA hearing.

Baltimore testified at the PCHA hearing that he had pleaded nolo contendere to the charges on which he and appellant had been arrested, and that if he had been called at appellant’s trial, he would have testified that appellant was not with him at the time the offense was committed. N.T. PCHA 9/17/80, 29, 32. From this it appears that Baltimore’s testimony would have been helpful to appellant. However, trial counsel testified at the PCHA hearing that the assistant district attorney told him, before appellant’s trial, that Baltimore had died. N.T. PCHA, 5/27/80 at 19. Appellant testified at trial, N.T. 156, and at the PCHA hearing, N.T. PCHA 5/27/80, 10, that at the time of trial he too thought that Baltimore had died. In these circumstances counsel could reasonably believe that Baltimore had in fact died. He was therefore not ineffective in failing to look for Baltimore as an alibi witness.

Appellant’s remaining arguments concern trial counsel’s failure to call Bernice Giles and Paulette King as alibi witnesses.

At his trial appellant testified that during 1971 he was living at 928 Roselle Court with his mother but that from July 19 to July 25 or 26 he was staying at the home of Paulette King, in the Homewood section of Pittsburgh, so that he could be with Bernice Giles, a former girlfriend who was visiting from Detroit and was also staying with King. According to appellant, on the evening of July 22 — when the detective said the sale of heroin occurred — he and Giles were babysitting for King’s children. N.T. 152-55. Appellant said that he had last been in touch with Giles at Christmas of 1971, and that he was not sure whether the address he used then was her address as of the time of trial, in March 1974. He said that he had tried to get in touch with her, to ask her to testify, but had been unsuccessful. N.T. 155. He also said that he did not know where King was living, and that he had not been in touch with her since the spring of 1972. N.T. 157.

At the hearing on his PCHA petition, appellant testified that he had told trial counsel about Giles and King, but “they didn’t come in [to testify at trial]. I don’t know the reason why they didn’t come in.” N.T. 5/17/80, 14.

Trial counsel also testified at the PCHA hearing, he said that he remembered little of his representation of appellant, N.T. 5/17/80, 17, and that he had been unable to consult his records on the case because he had given the file either to appellant or to the Public Defender. Id. Although he remembered that appellant had asked him to produce Giles and King as alibi witnesses, he did not remember having filed a notice of alibi defense until the district attorney, on the morning of the PCHA hearing, showed him the notice. Id. at 18. He did not remember talking to the alibi witnesses, trying to find them, or asking for a continuance so that he could try to find them. Id. at 18-20. He explained that he had expected to prevail on a speedy trial issue:

[T]he transaction occurred and he wasn’t arrested until fourteen months later and ... he didn’t go to trial for another year, so that was like 27 months delay and that’s the issue I thought we were going [to] win on and unfortunately I was mistaken.
Id. at 22.

After trial counsel testified, the hearing judge asked appellant whether counsel had given him the file on the case, and appellant responded that counsel had only given him a copy of the transcript, and not counsel’s file. Id. at 23. The judge then asked trial counsel to check with the Public Defender “to see whether you can find your records and if you find them, ... if that does refresh your recollection.” Id. at 23-24. The record does not indicate whether counsel made such a check and if he did what the results were.

The hearing was then continued. At the continued hearing, Robert Baltimore and Paulette King testified, but Bernice Giles did not. We have already discussed the issue presented by Baltimore’s testimony. Before discussing that presented by King’s, we shall consider whether, given Giles’s failure to testify, appellant has met his burden of proving that if trial counsel had looked for Giles, and had found her and called her to testify as an alibi witness, her testimony would have helped him. Or to state the issue differently: since Giles did not testify at the PCHA hearing, the only evidence of what she would have said, had she been called to testify at trial, is appellant’s own testimony, as he gave it at trial and later at the PCHA hearing. Was this sufficient to meet appellant’s burden?

We are not able to resolve this issue satisfactorily. If the lower court had found that appellant’s testimony was incredible, we should defer to that finding. Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980); Commonwealth v. Hosack, 459 Pa. 27, 326 A.2d 352 (1974); Commonwealth v. Thigpen, 259 Pa.Super. 59, 393 A.2d 715 (1978). The conclusion would then follow that appellant had not met his burden. But the court made no such finding. Indeed, in its opinion the court nowhere refers to Giles, or to appellant’s argument regarding trial counsel’s failure to call her as an alibi witness. In these circumstances we might remand for a finding on credibility. We have concluded, however, that that is unnecessary, for our decision turns, not upon whether trial counsel was ineffective in failing to call Giles, but upon whether he was ineffective in failing to call King.

At the PCHA hearing Paulette King corroborated the testimony appellant gave at trial, to the effect that he had stayed at King’s house during Giles’s one-week visit at the end of July 1971. King said that during July 1971 she was attending an evening class at Allegheny County Community College three nights a week — Monday, Wednesday, and Friday. Class was at 6 p.m., and on her class nights she left home about 5 p.m. Class lasted until close to 7 p.m. N.T. 9/27/80, 22. “Most of the time” her boyfriend brought her home; “[ujsually” she went “straight home” after class. Id. at 22-24. Although she did not recall what day of the week July 22 was, she testified as follows:

Q. While Bernice [Giles] was babysitting for you, were you home when you weren’t in class?
A. Constantly, right, because she came all the way from Detroit to see me, you know, yes.
Q. Did Mr. McCaskill ever leave the house while you were at home?
A. No. To tell you the truth, we cooked together, we cleaned together and we drank together.
Q. And he never left the house?
A. No, he was too much in love with her.
N.T. 9/27/80, 18-19.

In response to a question by the court King said that it was about an hour and half’s drive from her home to the 900 block of Roselle Court — the site of the sale of narcotics for which appellant was convicted. N.T. 9/27/80, 23.

The standard by which we gauge counsel’s effectiveness is whether

the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.
Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967) (emphasis in original).

See also Commonwealth v. Bronson, 457 Pa. 66, 321 A.2d 645 (1974); Commonwealth v. Manning, 263 Pa.Super. 430, 398 A.2d 212 (1979); Commonwealth v. Lopez, 262 Pa.Super. 1, 396 A.2d 454. In proceedings under the Post-Conviction Hearing Act, the petitioner has the burden of proving ineffective assistance of counsel. Commonwealth v. LaSane, 479 Pa. 629, 389 A.2d 48 (1978); Commonwealth v. Klaric, 263 Pa.Super. 286, 397 A.2d 1212 (1979); Commonwealth v. Sweitzer, 261 Pa.Super. 183, 395 A.2d 1376 (1978). Counsel will not be deemed ineffective for having failed to call a witness unless the appellant is able to demonstrate that the witness’s testimony would have been helpful to the defense. See, e.g., Commonwealth ex rel. Washington v. Maroney, supra (citing Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967)). See also Commonwealth v. Hagood, 491 Pa. 181, 420 A.2d 401 (1980); Commonwealth v. Helvy, 478 Pa.Super. 458, 420 A.2d 631 (1980) (per curiam).

In its opinion the lower court states that “it cannot be said that [Paulette King’s] testimony would have been helpful to [appellant]” because “she was unable to state whether or not [appellant] had, in fact, been there the night in question ([N.]T. at 24).” Slip op. at 2. This statement reflects a misunderstanding of King’s testimony.

At page 24 of the transcript, cited by the lower court, King, in response to questions by the court, testified as follows:

Q. When you got home [was appellant there]?
A. Yes.
Q. You don’t have any memory at all about what time he got home, he and Mr. Baltimore were supposed to be together when they made this sale to Detective Ramsey, right? You don’t have any idea whether he left home that night or not, do you?
A. I didn’t think he did, really.
Q. You don’t know because you weren’t there, right, you weren’t there, right, so you don’t know.
A. (No response.)

We find it difficult to read this testimony as the lower court summarized it — as manifesting “[an inability] to state whether or not [appellant] had, in fact, been there the night in question.” Although the court by its question to King asserted her inability to say whether appellant had been at her home at the time he was charged with selling narcotics, she repudiated the assertion (“I don’t think he did [leave home that night], really”).

This repudiation, moreover, was consistent with King’s other testimony. As we have mentioned, July 22, 1971, the day of the sale, was a Thursday. According to King’s testimony, she was home that night, for her classes were Monday, Wednesday, and Friday, and Giles and appellant were with her. Also according to King’s testimony, it would have taken appellant an hour and a half to drive from her home to the site of the sale. Thus, even if King did not get home until 8 p.m. — as she did on class nights — appellant could not have been there with Giles and also have been at the site of the sale at 7:15 p.m., as Detective Ramsey had testified at trial. It is therefore plain that as petitioner, appellant met his burden of demonstrating that King’s testimony would have been helpful to his defense.

Of course, the jury might not have believed King’s testimony; it might have believed the detective’s instead. But when the Commonwealth’s case is thus dependent upon the credibility of its witnesses, trial counsel must explore the testimony of any witness, such as King, whose testimony might cast doubt on the testimony of the Commonwealth’s witnesses. As the Supreme Court has stated in Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975):

If counsel’s decision not to secure Gilmore’s appearance or to have the notes of Gilmore’s previous testimony read to the jury was based on a reassessment of its worth and a conclusion that it was of little or no value in the posture of this case, then that decision clearly had some reasonable basis designed to effectuate Twiggs’s interests. In such circumstances, counsel’s conduct would not constitute ineffectiveness. See Commonwealth ex rel. Washington v. Maroney, supra. Had counsel reached this decision on a basis designed to advance his client’s interest, this case would be analogous to those situations in which, as a matter of trial strategy, counsel decides not to call a witness at all. See Commonwealth v. Dancer, [460] Pa. [95], 331 A.2d 435 (1975); Commonwealth v. Owens, 454 Pa. 268, 275, 312 A.2d 378, 382 (1973); Com monwealth v. Karchella, 449 Pa. 270, 296 A.2d 732 (1972); Commonwealth v. Ellis, 445 Pa. 307, 284 A.2d 735 (1971); Commonwealth v. Hawkins, 445 Pa. 279, 282, 284 A.2d 730 (1971).
If, however, counsel’s failure to seek compulsory process to obtain Gilmore’s testimony or to have his prior testimony read to the jury was the result of sloth or lack of awareness of the available alternatives, then his assistance was ineffective. In a case where virtually the only issue is the credibility of the Commonwealth’s witness versus that of the defendant, failure to explore all alternatives available to assure that the jury heard the testimony of a known witness who might be capable of casting a shadow upon the Commonwealth’s witness’s truthfulness is ineffective assistance of counsel.
Id., 460 Pa. at 110-11, 331 A.2d at 443.

See also, Commonwealth v. Abney, 465 Pa. 304, 350 A.2d 407 (1976); Commonwealth v. Charleston, 251 Pa.Super. 311, 380 A.2d 795 (1977).

This case is not one in which counsel decided, after investigation, not to call an alibi witness for some tactical reason, for example because in counsel’s view the witness’s testimony would be more harmful than helpful to the client. Commonwealth v. Karchella, 449 Pa. 270, 296 A.2d 732 (1972); Commonwealth v. Edwards, 273 Pa.Super. 351, 417 A.2d 685 (1979). Nor is it a case in which the record fails to establish that the defendant told counsel of the existence of the alibi witness. See Commonwealth v. Hagood, supra; Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973). Nor is it a case in which counsel tried but was unable to locate the witness. To the contrary: trial counsel recalled appellant’s having told him that Bernice Giles and Paulette King were alibi witnesses, but he did not recall, and the record does not disclose, that he made any attempt to explore their testimony and to call them as witnesses. King, moreover, testified that so far as she was concerned, at least, there had been no such attempt. N.T. 9/17/80, 12.

The only explanation counsel offered for this failure was his decision that it would be unnecessary to call .any alibi witnesses because he expected the indictment to be quashed on the ground that appellant’s right to a speedy trial had been violated. But this explanation is quite unacceptable.

Section 4-4.1 of the American Bar Association’s Standards for the Defense Function, which has been adopted in Pennsylvania, provides: “It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to. guilt.” American Bar Association, Standards for the Defense Function § 4-4.1 (approved 1979) (emphasis added). See Commonwealth v. Yocham, 483 Pa. 478, 397 A.2d 766 (1979); Commonwealth v. Gainor, 289 Pa.Super. 190, 432 A.2d 1116 (1981); Commonwealth v. Borelli, 288 Pa.Super. 319, 431 A.2d 1067 (1981). This duty to investigate exists even if counsel thinks that the particular avenue in question offers little chance of leading to a successful defense. See Commonwealth v. Bailey, 480 Pa. 329, 390 A.2d 166 (1978) (duty to investigate possible intoxication defense); Commonwealth v. Gainor, supra (duty to investigate possible insanity defense). Counsel may not decide not to investigate a possible defense, in the expectation that the case will not go to trial because a favorable ruling will be made on a pre-trial motion, unless that decision has “some reasonable basis,” Commonwealth ex rel. Washington v. Maroney, supra, of serving his client’s interests. Here we can find no such basis — nor did counsel suggest any. We don't doubt counsel’s belief that the motion to quash was meritorious. But the most experienced counsel have been caught by surprise when an argument believed to be meritorious is rejected. Since uncertainty pervades the adversary process, effective counsel will never forgo investigation of all possible defenses simply because he thinks he has made a winning pre-trial motion.

Furthermore, and finally, appellant’s counsel knew the day before the trial that his pre-trial motion was not a winning motion. Even if we were to assume for the sake of argument that up to that time his failure to explore appellant’s statement that he had two alibi witnesses was excusable, it became inexcusable when the motion to quash was denied. Then at least counsel should have tried to bring in the alibi witnesses (he had filed a notice of alibi defense), and if he could not, should have tried to make up for his negligence by requesting a continuance to enable him to bring them in.

The order of the lower court is reversed and a new trial is ordered.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I dissent. The testimony which would have been given by the witness was too indefinite to have been sufficiently helpful to the defense. As such, its absence cannot form the basis for a finding of ineffective assistance of counsel.

The issue before us has been the subject of a number of appellate court opinions in this Commonwealth. First, “It is clear that trial counsel’s failure to present a possible witness is not per se ineffective assistance of counsel. Counsel need not call every person mentioned by a defendant.” Commonwealth v. Charleston, 251 Pa.Super. 311 at 316, 380 A.2d 795 at 797 (1977).

The generally stated standard to be applied is given in another case of this court. “Without some positive indication or demonstration that their testimony would be helpful to the defense, we cannot equate the failure to call the other occupants as witnesses with a conclusion of ineffective assistance of counsel.” Commonwealth v. Harper, 233 Pa.Super. 294 at 300, 334 A.2d 761 at 763. (1975) (emphasis supplied).

This was interpreted in one opinion as requiring “that appellant ... demonstrate the necessity of the ... testimony ...” Commonwealth v. Helvy, 278 Pa.Super. 458 at 462, 420 A.2d 631 at 633 (1980).

The Supreme Court of this Commonwealth has decided a case remarkably similar to the one sub judice. Commonwealth v. Hagood, 491 Pa. 181, 420 A.2d 401 (1980). In Hagood there was also an allegation of ineffective assistance of counsel due to a failure to call a potential witness. However, that witness was not definite in his recollection as to the exact date in question. “Such uncertainty on the crucial facts necessary to establish the claim of ineffectiveness precludes favorable consideration ... Certainly there is no basis for the grant of a new trial.” Commonwealth v. Hagood, supra, 491 Pa. at 186, 420 A.2d at 404.

This is, I believe, exactly the situation before us. The proposed witness did not remember whether the day in question was one on which she had classes. Nor was she able to give any specific testimony about the relevant date. All she could contribute was very general statements about appellant’s presence over the period of a whole week. This thin tissue cannot support a finding of ineffective assistance of counsel mandating a new trial. It does not give “a positive indication ... that (the) testimony would be helpful.” Nor does it “demonstrate the necessity of the ... testimony.”

I would affirm judgment of sentence.

      . It might seem that appellant would have served his sentence. However, he was returned to prison after violating the conditions of his parole. N.T. PCHA 5/27/80, 15-16.

      . On direct examination Ramsey testified that he had been with appellant "about an hour. Perhaps an hour and fifteen minutes.” N.T. 47. At one point during cross-examination, he testified that he met appellant at 6:45 p.m., N.T. 73, which, he agreed, would mean that he had left appellant at 7:45, instead of 7:15, N.T. 77.

      . It was a Thursday. While this fact is not mentioned in the transcript, we may take judicial notice of it. Wilson v. Van Leer, 127 Pa. 371, 17 A. 1097 (1899); Mentz v. Unemployment Compensation Review Board, 29 Pa.Commw. 287, 370 A.2d 1232 (1977).

      . Footnote 3, supra.

      . In his dissent. Judge BROSKY concludes that Commonwealth v. Hagood controls this case. We are unable to agree. In Hagood no hearing under the Post Conviction Hearing Act had been held to determine how the alibi witness might have testified had he been called to testify at trial. The Supreme Court held that such a hearing was unnecessary, however, since Hagood, the appellant, could not recall whether he had been with the alibi witness on the date of the crime. Here, in contrast, appellant was sure that he had been at the alibi witness’s home when the crime was committed. It was the alibi witness whose memory was not entirely clear as to whether she had had class that night. But see notes 3 and 4, supra.

      . It was not, as the majority opinion points out, a day on which she had classes.