author: MONTGOMERY, Judge:

text:
    503 A.2d 24
    Billie Jeanne Crichton ZOOK, Appellee, v. ALLSTATE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed Jan. 10, 1986.

      Daniel R. Gigler, Pittsburgh, for appellant.
    Theodore E. Breault, Pittsburgh, for appellee.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant case arose out of an automobile accident which occurred on or about November 12, 1978. The general subject in dispute in this case involves the “stacking” of uninsured motorist coverage under an automobile insurance policy, a matter which has been the subject of significant litigation and appellate review. The particular issue on appeal however, is one of procedure, and involves the right of the insurer to a trial de novo, following the appeal from an arbitration award. The same issue appears to have arisen in at least one prior appeal, but, because of the procedural setting in that case, the problem was not resolved. See Hillen v. Allstate Insurance Company, 300 Pa.Super. 149, 446 A.2d 273 (1982).

The record shows that the Appellee, Billie Jean Crichton Zook and her son were injured in a motor vehicle collision. The Appellee thereafter sought payment of damages from Appellant, Allstate Insurance Company, pursuant to the uninsured motorist coverage contained in the automobile insurance policy which the Appellant had issued to the Appellee. The policy in question covered more than one vehicle, and the Appellee sought more than the amount provided under the uninsured motorist provision with respect to any one vehicle.

The parties could not resolve the claim of the insured, so the Appellee instituted a claim pursuant to the arbitration procedures of the American Arbitration Association. Such action was based upon the following provisions of the applicable insurance policy, which are highly relevant in the resolution of the instant appeal:

If We Cannot Agree
If we or you don’t agree on your right to receive any damages or the amount, then upon the written request of either the disagreement will be settled by arbitration. Arbitration will take place under the rules of the American Arbitration Association unless we or you object. Then, you’ll select one arbitrator and we will select another. The two arbitrators will select a third. If they can’t agree on a third arbitrator within 30 days, the judge of the court of record in the county of jurisdiction where arbitration is pending will appoint the third arbitrator. You will pay the arbitrator you select and we will pay the one we select. The expense of the third arbitrator and all other expenses of arbitration will be shared equally. When we arbitrate, the decision in writing will be binding up to the limits required under the Financial Responsibility law of Pennsylvania, and may be entered as a judgment in a proper court. When an award exceeds those limits, either party has a right to trial on all issues in a court of competent jurisdiction. This right must be exercised within 60 days of the award.

A hearing was held before a panel of arbitrators on November 1, 1984. Thereafter, the arbitrators entered an award in favor of the Appellee in the amount of $40,000.00, and in favor of her son in the amount of $5,000.00. This award involved stacking of coverages, as to the Appellee’s recovery, and thereby exceeded the amount available if it were concluded that only a single policy coverage limit applied to the accident.

Following the entry of the arbitration award, the Appellant insurer petitioned the Court of Common Pleas, at No. GD84-21224, to vacate the award, and the Appellee petitioned the same court, in an action instituted at No. GD8421225, to confirm the award. The petitions were considered by the court, which thereafter issued separate orders on December 7, 1984, denying Allstate’s petition to vacate, and granting the Plaintiff-Appellee’s petition to confirm the arbitration award, at No. GD84-21224, and judgment was then entered against the Appellant on the award, at No. GD84-21225. The Appellant filed timely appeals to our court from the judgment, at Appeal No. 030 Pittsburgh, 1985, and from the orders, at Appeal No. 031 Pittsburgh, 1985, and such appeals were subsequently consolidated for consideration by our Court.

The Appellant, in seeking to have the award of the arbitrators vacated in the lower court, sought a trial de novo regarding the claims of the Appellee. It is clear that in doing so, the Appellant sought to relitigate questions pertaining to the right of the Appellee to any recovery whatsoever under the uninsured motorist provisions of the policy, as well as regarding the issue of whether the Appellant would be entitled to stack the coverages arising from the fact that the policy insured more than one vehicle. The lower court rejected the request for a trial de novo, and concluded that the determination of the amount of coverage available to the Appellee was decided properly by the arbitrators. The lower court therefore refused to vacate the award. The lower court did not prepare an opinion in the case, but issued a short memorandum indicating that it adopted the grounds set forth in the Appellee’s petition and brief as the rationale for its decision. The petition and brief of the Appellee, as filed in the lower court, raised the argument that no issue was being raised by the Appellant that it had been denied a hearing, or that there was fraud, misconduct, corruption or some other irregularity on the part of the arbitrators which caused the rendition of an unjust, inequitable or unconscionable award. The case of Hain v. Keystone Insurance Company, 230 Pa.Super. 456, 326 A.2d 526 (1974), was cited. Further, the Appellee maintained in her brief to the lower court that the arbitration procedures conducted by the American Arbitration Association had been common law rather than statutory arbitration, and that in such circumstances no review by the Court of Common Pleas was proper on the basis of a claim by the Appellant that an error of law or fact by the arbitrators should substantiate the vacation of the arbitration award. The Appellee cited the case of Harleysville Mutual Insurance Company v. DeMarco, 328 Pa.Super. 513, 477 A.2d 563 (1984), in support of that position. It appears that the lower court found merit in such contentions in this case.

As previously mentioned, the specific issue before us on this appeal is whether the insurer was entitled to be granted a trial de novo in accordance with its request to the lower court. After review, we conclude that the lower court acted correctly in denying the Appellant’s request for a trial de novo on the issues which had previously been resolved by the arbitration. We reach this conclusion on grounds other than those apparently relied upon by the lower court. However, it is well-established that on appeal we can affirm the result reached by a lower court, even though that result may have been reached upon reasoning other than that we may adopt for our affirmance. See Commonwealth v. Whitehouse, 222 Pa.Super. 127, 292 A.2d 469 (1972), and cases cited therein.

The Appellant’s claim that it is entitled to a completely new trial on all issues in the Court of Common Pleas, after an unfavorable arbitration decision, is grounded upon the wording of the last paragraph of the insurance policy:

When we arbitrate, the decision in writing will be binding up to the limits required under the Financial Responsibility Law of Pennsylvania, and may be entered as a judgment in a proper court. When an award exceeds those limits, either party has a right to trial on all issues in a court of competent jurisdiction. This right must be exercised within 60 days of the award.

In our view, this provision is certainly ambiguous and must be construed against the insurer.

It has long been held that where a provision of an insurance policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, which is the drafter of the agreement. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983); Miller v. Prudential Insurance Company of America, 239 Pa.Super. 467, 362 A.2d 1017 (1976). The policy language quoted above provides that either party has a right “to trial on all issues” in a court of competent jurisdiction when an arbitration award exceeds the limits required under the applicable motor vehicle insurance law. In the instant case, it is clear that Allstate maintains in its appeal that the coverage limits exceeded the applicable law. However, it has been made clear in numerous decisions of the appellate courts of our Commonwealth that the stacking of uninsured motorists benefits does not violate the provisions of the insurance statutes. See Estate of Rosato v. Harleysville Mutual Insurance Company, 328 Pa.Super. 278, 476 A.2d 1328 (1984), and the many cases on this subject which are cited therein. In view of such decisions, it is certainly unclear what may be meant by the words of the policy which allow an appeal when an award exceeds the limits of the applicable law. In other words, the policy provides for an appeal if the award of the arbitrators is beyond the terms provided in the statute. However, because our courts have repeatedly held that stacking is permitted under applicable law, one is left with doubt as to the meaning or application of this particular provision.

Ambiguity is also evident in the part of the Allstate policy provision in issue in this case which states that a party has a right to trial “on all issues in a court of competent jurisdiction”. However, as noted earlier in this Opinion, the first paragraph of the same policy, pertaining to disagreements between the parties, states that if the parties do not agree on the right of the insured to receive any damages, or the amount of such damages, then the disagreement “will be settled by arbitration.” (emphasis supplied). In plain words, if a dispute is to be “settled” in arbitration, there can be no trial de novo on all issues. The inconsistency in such provisions must be held to constitute an ambiguity.

The arbitration called for in the contract in dispute in the instant case is common law arbitration, rather than statutory arbitration. This is evident in view of the failure of the policy to mention arbitration under the Pennsylvania Arbitration Act, and also in the inclusion of a declaration that the arbitration would be held under the rules of the American Arbitration Association. See Runewicz v. Keystone Insurance Company, 476 Pa. 456, 383 A.2d 189 (1978). In common law arbitration, as noted earlier, a court of competent jurisdiction is only empowered to disturb the arbitration award if there is evidence of fraud, misconduct, corruption or some other irregularity which caused the rendition of an unjust, inequitable or unconscionable award. See Runewicz v. Keystone Insurance Company, supra; Harleysville Mutual Insurance Company v. DeMarco, supra. We know of no authority for the proposition that any court in our Commonwealth has the jurisdiction to void the decision of a common law arbitration, and to conduct a trial de novo, in the absence of fraud, misconduct, corruption or other similar irregularity. Thus, there is further obvious ambiguity in the language of the policy which provides that disagreements of the parties will be settled by arbitration, but later suggests that either party has a right to a trial on all issues in a court of competent jurisdiction.

In summary, we cannot agree with the contention by the Appellant that the lower court erred in denying the insurer’s request for a trial de novo, based upon the wording of the applicable provisions in the insurance policy. There can be no doubt that such provisions are ambiguous, and we are therefore required to construe them against the insurer, and deny its request for such a trial.

The decision of the lower court is affirmed.

      . The damages awarded to the Appellee’s son are not in issue in this appeal.

      . In view of our disposition of this case on the basis of the ambiguity in contract language, we do not deem it necessary or appropriate to address the Appellee's interesting contention that the provision in issue is a liability-limiting clause which is intended to prevent stacking, and is void because it is repugnant to the intent of the Uninsured Motorists Act.


source: Caselaw Access Project

author: SPAETH, President Judge:

license: Public Domain

text:
    503 A.2d 27
    COMMONWEALTH of Pennsylvania v. Guy DREXEL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 5, 1985.
    Filed Jan. 3, 1986.
    Reargument Denied Jan. 23, 1986.

      Guy Drexel, in propria persona.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellee.
    Before SPAETH, President Judge, and MONTEMURO and MONTGOMERY, JJ.
   SPAETH, President Judge:

This is an appeal from an order denying, without an evidentiary hearing, appellant’s petition for relief under the Post-Conviction Hearing Act, 42 Pa.C.S. § 9541 et seq. Appellant was convicted of first degree murder, solicitation, conspiracy, retaliation against a witness, and tampering with a witness, and was sentenced to life imprisonment. In his PCHA petition, appellant argues that trial counsel was ineffective, first, in failing to object to the trial judge’s charge to the jury on the Commonwealth’s burden of proof to establish the corpus delicti; and second, in failing to object to the court’s informing the jury of the penalties for homicide. We affirm.

On April 23,1977, at 10:00 a.m., Thomas Morgan, age 19, told his mother that he was going out and would be back by midnight. This was the last time anyone saw Morgan alive. On October 9, 1977, the badly decomposed torso of a man was found in a wooded area of Berks County, some sixteen miles from Morgan’s home. The head was missing, although a portion of a jawbone lay nearby. Only fragments of skin and fat were intact, and all of the major organs were missing except for a small piece of the liver. A wallet found near the body contained various identification papers bearing Morgan’s name. This, along with eyeglasses found underneath the body, shreds of clothing, strands of hair, and two teeth, led police to conclude that the body was that of Thomas Morgan.

Appellant (Morgan’s brother-in-law) and three others (who were tried separately) were charged with murdering Morgan. It was the Commonwealth’s contention that appellant engineered the homicide to prevent Morgan from testifying against the four of them at an upcoming preliminary hearing on burglary charges; Morgan, a participant in the burglary, had informed on the four to the police and had agreed to testify against them at the hearing.

One of the issues to be resolved at trial was the nature of Morgan’s death. Two pathologists testified for the Commonwealth, but because of the condition of the body, neither was able to state positively the cause of death. The Commonwealth did present circumstantial evidence to prove that Morgan died from unnatural causes, including the fact of the decapitation itself, the fact that Morgan did not drive and yet was found sixteen miles from his home, that he had been in good health, and that on the night of his disappearance he had expressed his intention to be gone only a short time. As to appellant’s involvement in the murder, the Commonwealth’s principal witness was Gene Roth, who testified that on the day after Morgan’s disappearance, appellant had fully admitted to having planned and solicited the homicide. N.T. 6/26/78 at 184 et seq.

In his defense, appellant took the stand and testified that although he had known for some time that Morgan had been murdered, he was not involved in the murder. Rather, he stated, it was Joseph Biancone, a local “gangster,” who had set up the murder, N.T. 6/26/78 at 234, and that Biancone had admitted this to him within a few days of Morgan’s disappearance. Id.

In his PCHA petition, appellant’s first argument is that counsel was ineffective in failing to object to the following portion of the charge to the jury (regarding Gene Roth’s testimony of appellant’s out-of-court admission).

As I told you, you may not consider the statement as evidence against the defendant unless you find that a crime was in fact committed. The Commonwealth has the burden of proving this matter by evidence independent of the statement itself. The purpose of this rule is to guard against a conviction of a person for a crime which never really happened even though the person confessed to it. More precisely, you must disregard the statement alleged to have been made by Guy Drexel unless you are satisfied by the other evidence that Thomas Morgan is dead and that his death was probably caused feloniously by someone killing him. A killing is felonious if it is either murder or involuntary manslaughter. As I told you, you can’t consider the statement as evidence against the defendant unless you find the defendant in fact made the statement.
N.T. 6/29/78 at 186.

Appellant contends that in telling the jury that it need only find that Morgan’s death was “probably caused feloniously,” the court committed reversible error, the proper standard being that the jury had to find beyond a reasonable doubt that the death was caused feloniously. While we agree with appellant that the court committed error, we have concluded that the error was not reversible.

A crime may be said to consist of three elements: first, “the occurrence of the specific kind of injury or loss;” second, “somebody’s criminality ... as the source of the loss;” and third, “the accused’s identity ... as the doer of this crime.” Commonwealth v. Tessel, 347 Pa.Superior Ct. 37, 500 A.2d 144 (1985), quoting 7 J. Wigmore, Evidence § 2072, at 524-25 (Chadbourn rev. 1978) (emphasis omitted). Corpus delicti, meaning “body of the crime,” comprises the first two elements. Commonwealth v. Ware, 459 Pa. 334, 365, 329 A.2d 258, 274 (1974). Thus, in a murder prosecution, the corpus delicti consists of “proof that a human being is dead and that such death took place under circumstances which indicate criminal means or the commission of a felonious act.” Commonwealth v. Milliken, 450 Pa. 310, 317, 300 A.2d 78, 82 (1973), quoting Commonwealth v. Frazier, 411 Pa. 195, 202, 191 A.2d 369, 373 (1963).

Based on the foregoing principles, Pennsylvania has developed a corpus delicti rule of evidence that states that before the Commonwealth may introduce a defendant’s confession or admission, it must offer independent evidence that a crime in fact occurred. Commonwealth v. Moore, 466 Pa. 510, 513, 353 A.2d 808, 809 (1976); Commonwealth v. Smallwood, 497 Pa. 476, 483, 442 A.2d 222, 225 (1982); Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980); Commonwealth v. Palmer, 448 Pa. 282, 285-86, 292 A.2d 921, 922 (1972). Such independent evidence need not conclusively prove that a crime was committed; rather, the rule is satisfied if the evidence “points to an unlawful killing, although it may indicate as well accident or suicide.” Commonwealth v. Coontz, 288 Pa. 74, 79, 135 A. 538, 539 (1927). See also Commonwealth v. Byrd, supra, 490 Pa. at 556, 417 A.2d at 179 (to introduce incriminating out-of-court statement, Commonwealth need not prove existence of crime beyond a reasonable doubt); Commonwealth v. Turza, 340 Pa. 128, 135, 16 A.2d 401, 405 (1940) (evidence sufficient “where the circumstances attending the death are consistent with crime, though they may also be consistent with accident ... or suicide”). The purpose of the rule is to prevent the use of hasty and unguarded confessions to convict an individual when no crime was committed. Commonwealth v. Ware, supra, 459 Pa. at 365, 329 A.2d at 274. In essence, then, to introduce a defendant’s confession or admission, the Commonwealth need only show that it was more probable than not that the victim died from unnatural causes.

This threshhold burden, however, is irrelevant to the Commonwealth’s ultimate burden of proof. It is of course settled that the Commonwealth must prove every element of the crime charged beyond a reasonable doubt, Commonwealth v. Ewell, 456 Pa. 589, 319 A.2d 153 (1974); and implicit in that burden is the requirement that the Commonwealth must prove beyond a reasonable doubt that a crime was in fact committed — in a homicide case, that death was caused by felonious means. Commonwealth v. Moore, 466 Pa. 510, 513, 353 A.2d 808, 810 (1976); Commonwealth v. Lettrich, 346 Pa. 497, 502, 31 A.2d 155, 156 (1943); Gray v. Commonwealth, 101 Pa. 380, 386 (1882). The distinction between the quantum of proof required to establish the corpus delicti and that required to prove that a crime was in fact committed has been explicitly stated by our Supreme Court in Commonwealth v. Ware, supra:

We do not lose sight of the distinction between the requirement of corroboration of the statements of the accused and the Commonwealth’s ultimate burden of proof. The former merely requires that the trial court be satisfied that a conviction will not result from a confession or admission when no crime has in fact been committed by anyone. Ultimately, the Commonwealth must prove beyond a reasonable doubt that a crime has in fact been committed. Commonwealth v. May, 451 Pa. 31, 33 n. 2, 301 A.2d 368, 370 n. 2 (1973); Commonwealth v. Maybee, 429 Pa. 222, 223, 239 A.2d 332, 333 (1968). 459 Pa. at 367 n. 43, 329 A.2d at 275 n. 43.

It is clear, therefore, that the trial court erred when it instructed the jury that it had to “disregard [appellant’s admission] unless [it was] satisfied by the other evidence that Thomas Morgan is dead and that his death was probably caused feloniously by someone killing him.” By this instruction the court permitted the jury — in theory, at least; whether in fact will be discussed next — to decide that a crime was committed only as a matter of probability, and then to proceed from that decision to the further decision that if a crime was committed, appellant was beyond a reasonable doubt the one who had committed it. This reasoning represents an impermissible dilution, or lessening, of the Commonwealth’s ultimate burden, and to avoid that, the court should have instructed the jury that before it could consider appellant’s admission, it had to be satisfied not probably but beyond a reasonable doubt that Morgan’s death was caused feloniously.

We have concluded, however, that on the facts of this case, the trial court’s error was harmless. The basis of our conclusion is that appellant himself did not contest the cause of death. Thus he testified that he knew that Thomas Morgan had been murdered because Joseph Biancone had told him so. Appellant’s defense was that he was not the one who committed the murder, it was Biancone. This case is therefore unlike Commonwealth v. Frazier, supra, where the trial court had also given the same erroneous instruction as here and the Supreme Court held that the error was reversible. In that case, “[wjhether the death was due to suicide or caused by the felonious act was one of the main issues to be determined. It was, therefore, logical and incumbent upon the jury to resolve this question in the first instance.” 411 Pa. at 203, 191 A.2d at 373 (emphasis added). See also Commonwealth v. Fried, 327 Pa.Super. 234, 475 A.2d 773 (1984) (McEWEN, J., with two judges concurring in the result) (because the cause of death was highly contested at trial, court’s erroneous instruction on corpus delicti was reversible error). Here, appellant’s defense went, not to the issue of the cause of death, but to the issue of who caused the death. The defense thus having essentially conceded that Morgan died of unnatural causes, the trial court’s erroneous instruction was harmless.

. This conclusion is further supported by the well-settled proposition that in reviewing jury instructions for reversible error, we must read the charge as a whole. Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977). “Error cannot be predicated on isolated excerpts of the charge. It is the general effect of the charge that controls.” Commonwealth v. Woodward, 483 Pa. 1, 4, 394 A.2d 508, 510 (1978). Here, the error cited by appellant was a single sentence in a charge that comprises over twenty-two pages of transcript. In the course of the charge the trial court addressed the Commonwealth’s burden of proof extensively, as the following excerpts show:

I have gone over with you several times the principle of our system of criminal law that the defendant is presumed innocent. I advised you that the defendant did not have to produce evidence. The defendant did here. The defendant here testified. Nonetheless, it is the Commonwealth that always has the burden of proving each and every element of the crime charged, and that the defendant is guilty of that crime beyond a reasonable doubt. If the Commonwealth evidence fails to meet its burden, then our verdict must be not guilty. On the other hand, if the Commonwealth evidence does prove beyond a reasonable doubt that the defendant is guilty, then your verdict should be guilty.
Although the Commonwealth has the burden of proving the defendant guilty, that does not mean that the Commonwealth must prove its case beyond all doubt, or to a mathematical certainty. Nor does it mean that the Commonwealth must demonstrate the complete impossibility of innocence. A reasonable doubt is said to be by our highest Appellate Court a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his or her own life. A reasonable doubt must fairly arise out of the evidence presented or lack of evidence presented with respect to some element of the crime. It must be a real doubt, not an imagined one and not a doubt manufactured to avoid carrying out an unpleasant duty.
To summarize, the Commonwealth has the burden of proving the defendant guilty. If it meets that burden, then the defendant is no longer presumed innocent and you should find him guilty.
N.T. 6/29/78 at 273-72.

We do not suggest that in a case in which the cause of death was a principal issue, these instructions would overcome an erroneous instruction on corpus delicti; to the contrary, they would not. See Commonwealth v. Frazier, supra; Commonwealth v. Fried, supra. In this case, however, when corpus delicti was essentially conceded by the defense, we believe that the instructions were so full that there is no danger that the jury was not satisfied of appellant’s guilt beyond a reasonable doubt.

The second issue raised by appellant, that counsel was ineffective in failing to object to the trial court’s informing the jury of the penalties for the various degrees of homicide, is without merit. The governing statute at the time of appellant’s trial in 1978 was 18 Pa.C.S. § 1311. That statute, entitled “Sentencing for murder,” provides in pertinent part:

(b) Instructions to jury and recording verdict. — In a trial for murder, the court shall inform the jury prior to their deliberations, as to the penalties for murder of the first degree, murder of the second degree and murder of the third degree. The court shall also inform the jury that if they find the defendant guilty of murder of the first degree, it will be their further duty to determine whether the killing was accompanied by any aggravating or mitigating circumstances as set forth in subsection (d) of this section after hearing such additional evidence as may be submitted upon that question. Whenever the jury shall agree upon a verdict of murder of the first degree they shall immediately return and render the same, which shall be recorded, and shall not thereafter be subject to reconsideration by the jury, or any member thereof.
Id.

The mandatory language of section 1311(b) (the trial court “shall” inform the jury of the penalties for murder) has been interpreted by this court to apply only to homicide cases in which the death penalty is a possible sentence. See Commonwealth v. Lybrand, 272 Pa.Super. 475, 416 A.2d 555 (1979). At appellant’s trial, it was agreed prior to trial that the Commonwealth would not seek the death penalty. N.T. 6/26/78 at 20. The trial court, therefore, was not required to inform the jury of the penalties for murder. This does not mean, however, as appellant would have us conclude, that the court was prohibited from so informing the jury; nor do we infer any such prohibition from the language of section 1311. We therefore conclude that the PCHA court properly denied appellant relief on this issue.

Affirmed.

      . Appellant properly layers his ineffectiveness argument by also citing appellate counsel’s ineffectiveness in failing to raise the issues on appeal.

      . In Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974), the Supreme Court noted that although the rule is frequently characterized as setting a condition on the admissibility of the defendant’s statements, that this is not really correct because the trial court has discretion over the order of proof. Rather, the Court stated, the rule is "a formulation of the required proof to take the case to the trier of fact or to sustain a finding of guilty.” Id., 459 Pa. at 366, n. 41, 329 A.2d at 274 n. 41, quoting McCormick’s Handbook of the Law of Evidence, § 158, at 347 (2d ed. E. Cleary 1972) (footnote omitted).

      . The PCHA court, in discussing appellant’s petition, stated that the issue of whether the charge was error had been litigated, but that is inaccurate. Appellant’s post-trial motions raised the issue of whether there had been sufficient proof of the corpus delicti to warrant admission of Roth’s testimony of appellant's admissions. On that issue the trial court held that there had been sufficient proof, slip op. of tr. ct at 2-4, and on appeal, the Supreme Court affirmed. Commonwealth v. Drexel, 494 Pa. 138, 430 A.2d 1155 (1981) (per curiam). As just discussed, however, the issue of whether the trial court correctly ruled that the Commonwealth met its burden of proving the corpus delicti is distinct from the issue of whether the trial court correctly charged the jury on the Commonwealth’s ultimate burden of proving that a crime was in fact committed.

      . Appellant’s brief, which was filed pro se, does not raise this issue in its Statement of Questions Presented, although the issue is discussed in the text of the argument. Despite this discrepancy, and in the interest of judicial efficiency, we will address the question, for it was presented properly to the PCHA court.


author: JOHNSON, Judge:

text:
    503 A.2d 33
    COMMONWEALTH of Pennsylvania v. Thomas Lee BAYSORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 17, 1985.
    Filed Jan. 3, 1986.

      James R. Protasio, Assistant Public Defender, Williams-port, for appellant.
    Brett C. Feese, District Attorney, Williamsport, for Commonwealth, appellee.
    Before TAMILIA, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

We are here asked to decide whether the new, five-year statute of limitations applies to a theft offense committed less than two years before its enactment where prosecution was not commenced until after the former two-year limitation period had expired.

Appellant was charged with the crimes of theft by unlawful taking or disposition, unauthorized use of automobile and other vehicles, receiving stolen property and criminal mischief. The crimes occurred on or about September 9-10, 1981. The complaint was not filed until August 14, 1984 and the information was filed on September 21, 1984.

Following a non-jury trial in the form of a case stated, the trial court found appellant guilty on the first count, theft, and on the fourth count, criminal mischief. The court noted that the second count, unauthorized use of a motor vehicle, and the third count of receiving stolen property merged with the first count of theft. By way of a Motion to Dismiss, and in a timely post-verdict motion, appellant raised the claim that the statute of limitations had expired. These motions were denied and appellant was sentenced to pay costs, restitution and to an indeterminate period of incarceration to range from the minimum of 9 to a maximum of 23 months. The court suspended sentence and placed appellant on probation for three years. Appellant appeals from the judgment of sentence and raises the claim that the two-year statute of limitations in effect on the date of the commission of the crime, rather than the five-year statute presently in effect, should be applied so as to bar the prosecution.

Appellant argues that when the crimes occurred in 1981 the applicable statute of limitations was two years. Act of July 9, 1976 P.L. 586, No. 142, § 2, as amended by Act of April 28, 1978, P.L. 202, No. 53, § 10(64), as amended by Act of October 4, 1978, P.L. 873, No. 168, § 1, as amended by Act of October 5, 1980, P.L. 693, No. 142, § 206(a) (current version at 42 Pa.C.S. § 5552).

Within the two year period, by Act of May 13, 1982, P.L. 417, No. 122, § 1 (current version at 42 Pa.C.S. § 5552(b)), the legislature extended the statute of limitations applicable to the theft related counts to five years. The two-year statute for criminal mischief was not extended.

The complaint was not filed until August 14, 1984 and the information was not filed until September 21, 1984. Thus, appellant argues that although action was commenced within the amended five-year statutory period, it was commenced beyond the original two-year statutory period in effect in 1981 and should be dismissed.

We agree with appellant and find that, while the legislature has the power to extend a statute of limitations retroactively, it has not done so here. Accordingly, we reverse.

We note initially that, with respect to the criminal mischief count, 18 Pa.C.S. § 3304, the statute of limitations continues to be two years, as it was at the time the offenses were committed. 42 Pa.C.S. § 5552 (Purdon Supp.1985). The 1982 amendment of the statute of limitations did not extend the two-year period within which prosecutions for criminal mischief must be commenced. The prosecution of appellant for criminal mischief was commenced more than two years after it was committed. Therefore, appellant’s judgment of sentence for criminal mischief is reversed.

With respect to the theft conviction, appellant argues that the 1982 amendment of the statute of limitations should not be applied to a crime which occurred in 1981. We look first to the terms of the statute, itself, for guidance. By way of Act 122 of 1982, the Pennsylvania legislature amended 42 Pa.C.S. § 5552(b), such that a prosecution for theft must be commenced within five years after it is committed. Act of May 13, 1982, P.L. 417, No. 122. This amendment became effective July 12, 1982. Id., § 4(a). The legislature did not specify whether, once effective, the Act was to be applied to thefts occurring before July 12, 1982 or only to thefts occurring on or after its effective date. The Statutory Construction Act of 1972, 1 Pa.C.S. § 1501 et seq., provides that no statute shall be construed to be retroactive “unless clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S. § 1926.

In stating when the 1982 amendment was to become effective the legislature made no explicit mention of retroactivity. It did not use the word “retroactive,” nor did it say that it should be applied to crimes occurring before its effective date. The legislature merely stated “Section 1 shall take effect in 60 days.” Act of May 13, 1982, P.L. 417, No. 122, § 4(a). On its face, then, we see no clear and manifest expression of a legislative intent that the amendment be applied retroactively.

When we look to another amendment of Title 42 Pa.C.S. we find that the legislature can, and does, manifest its intent that that amendment be applied retroactively. For example, when the legislature added 42 Pa.C.S. § 762(a)(1)(h), relating to Commonwealth Court jurisdiction over appeals from the Court of Common Pleas, it provided that this act “shall take effect immediately and shall be retroactive to December 5, 1980.” Act of December 20, 1982, P.L. 1409, No. 326, § 404. This language is an example of an explicit mandate by the legislature that an amendment should be applied retroactively. An explicit use of the word “retroactive” meets the requirement of a clear and manifest intent of the legislature that the act be applied retroactively. In contrast, when the legislature lengthened the statute of limitations for theft to five years it did not, in any way, manifest an intent that the extension be applied retroactively. The legislature having failed to do this, we cannot infer such an intent. Cf. Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983).

The principle embodied in the Statutory Construction Act, that the legislature must clearly manifest an intent to apply an act retroactively, is also recognized in case law. It was early established in Pennsylvania that the legislature can extend a statute of limitations by an amendment and can apply the new statutory period to crimes occurring before the extension, so long as the original statutory period has not expired. Commonwealth v. Duffy, 96 Pa. 506 (1880). However, in order for the new statutory period to apply to crimes occurring before the extension, the legislature must explicitly refer to the fact that the extension is to be applied retroactively. Id. at 514. See U.S. v. Richardson, 393 F.Supp. 83 (W.D.Pa.1974), aff'd, 512 F.2d 105 (3d Cir.1975). The district court in the Richardson case stated that “Congress did not explicitly state that it intended the statute to apply retroactively as it assuredly could have done, and has done [in the past].” Richardson, 393 F.Supp. at 87, (footnote omitted). The court concluded that “the statute contains no reference to retroactive application because Congress did not intend it to be so applied.” Id. (footnote omitted).

Similarly, the Pennsylvania legislature, in enacting Act 122 of 1982, did not explicitly state, as it did with another amendment to the same title, that it intended the amendment to apply retroactively. Without such an explicit expression of legislative intent, we refuse to apply the five-year limitation period to crimes occurring before its enactment. Appellant’s prosecution was commenced outside the applicable two-year period. Accordingly, we reverse appellant’s judgment of sentence for theft as well as his judgment of sentence for criminal mischief and we order appellant discharged.

Judgment of sentence reversed. Appellant is ordered to be discharged.


author:
BROSKY, Judge:
      SPAETH, President Judge,

text:
    503 A.2d 36
    Stanley L. PHILLIPS, Appellant, v. BABCOCK & WILCOX, Tubular Products Division of McDermott, Inc.
    Superior Court of Pennsylvania.
    Argued Oct. 8, 1985.
    Filed Jan. 17, 1986.

      Samuel S. Blaufeld, Pittsburgh, for appellant.
    Brian J. Dougherty, Pittsburgh, for appellee.
    Before SPAETH, President Judge, and BROSKY and ROWLEY, JJ.

       President Judge SPAETH joined in this opinion before the expiration of his term on the court.

   BROSKY, Judge:

This is an appeal from the order granting appellee’s motion for summary judgment and dismissing appellant’s complaint in this civil action for the tort of wrongful discharge.

Appellant’s sole issue is whether a civil action for the tort of wrongful discharge can be maintained by a union employee whose employment relationship is governed by a collective bargaining agreement. The trial court found that such an action is unavailable to employees who are protected from peremptory discharge by some other means, i.e. contract or statute. Since under the terms of the collective bargaining agreement appellant was protected from suspension or discharge without proper cause, the trial court granted appellee’s motion for summary judgment. We affirm.

Appellant was hired as an electrician in appellee’s plant in 1968 and is a member of the United Steel Workers of America. In September, 1982 appellant was laid off as part of a general economic layoff. While still laid off, appellant filed a claim for workmen’s compensation alleging a job related loss of hearing. When appellee began to call its employees back to work in April of 1984, appellant was not reinstated. Appellant filed a grievance according to the terms of the collective bargaining agreement between the Union and appellee which grievance was sustained.

During the pendancy of the arbitration proceedings concerning his grievance, appellant filed the instant action for wrongful discharge. Appellant contends that his discharge was made in retaliation for filing the workmen’s compensation claim. Thus, appellant argues that since retaliatory firing in response to an employee’s filing a workmen’s compensation claim is against public policy, he should be able to maintain the cause of action even though he is, concededly, not an at-will employee. We do not agree.

The action for wrongful discharge in Pennsylvania was judicially established by our Supreme Court in the case of Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974). In Geary, the Supreme Court carved out a very narrow exception to the established law (commonly referred to as the “at-will doctrine”) which held that absent a statutory or contractual provision to the contrary, either party could terminate an employment relationship for any or no reason. The Supreme Court held that where no clear mandate of public policy is violated by the termination of an at-will employment relationship, an employee at will has no cause of action for wrongful discharge. Thus, implicit in the holding is that an employee at will can maintain a wrongful discharge action where a clear mandate of public policy has been violated by the termination.

Since the Geary decision, the courts of this Commonwealth have entertained suits by at-will employees where their discharges violated clear mandates of public policy. In Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978), this Court held that the cause of action exists where the employee at will is discharged for performing an obligation of jury service. Thus, since Geary, at-will employees have been afforded the opportunity to prove in court claims for arbitrary and retaliatory discharge in certain instances.

Appellant seeks to have us extend the coverage.of this judicially created protection and declare the cause of action available to union employees who are otherwise protected from wrongful discharge by collective bargaining agreements. Appellant advances his position on the assumption that the intent behind the development of the cause of action was to uphold public policy and provide a remedy to those who were injured by an employer’s disregard of such policy. However, the wrongful discharge cause of action was never intended to provide a forum to vindicate public policy and punish those who deviate from it.

The Supreme Court’s decision in Geary was clearly concerned with the protection of “corporate personnel in the areas of employment not covered by labor agreements.” Geary, supra, 456 Pa. at 181, 319 A.2d at 179. In fact, even in his dissent in Geary, 456 Pa. at 188, 319 A.2d at 182, Justice Roberts noted that “the time has surely come to afford unorganized employees” a legal forum. (Emphasis Added). The Court’s purpose was to provide a remedy for employees with no other recourse against wrongful discharge.

Appellant and all like-situated employees are not without recourse when faced with indiscriminate discharge even when the discharge violates public policy. The collective bargaining agreement in the instant case provides protection against suspension or discharge without “proper cause.” Surely, in pursuing a grievance under the provisions of the agreement, if appellant can show that his discharge was in retaliation for his filing a workmen’s compensation claim, he will have proved that his discharge was not for “proper cause.” It would appear, therefore, that appellant will then be entitled to the remedies provided in the agreement.

Furthermore, we are not persuaded by appellant’s argument that the wrongfully discharged at-will employee has greater remedies available in a civil action than does a union employee under a collective bargaining agreement since a civil court could award punitive damages. While the at-will employee may be entitled to punitive damages in a civil action, he does not have the ability to obtain some of the remedies available to union members; such as reinstatement to his position, which is a commonly provided remedy in labor agreements. Thus, we find that a difference in remedies is not enough to justify an extension of the coverage of the wrongful discharge action.

Finally, in deciding not to extend the wrongful discharge action to employees who are otherwise protected by contract or statute, we must take into consideration the strong public policy which favors the right of parties to enter into contracts. In the instant case, the union and appellee in their agreement decided the remedies that would be available, and provided that those remedies would be final and binding. This intent is expressly set forth in the agreement and, therefore, the remedies available should be preclusive of any others. Aughenbaugh v. North American Refractories Company, 426 Pa. 211, 231 A.2d 173 (1967).

Therefore, because the wrongful discharge action in Pennsylvania was judicially created to protect otherwise unprotected employees from indiscriminate discharge and to provide unorganized workers a legal redress against improper actions by their employers, we hold that an action for the tort of wrongful discharge is available only when the employment relationship is at will. Geary, supra.

Order affirmed.

SPAETH, President Judge, files a dissenting opinion.

SPAETH, President Judge,

dissenting:

I am unable to agree with the majority’s conclusion that the tort of wrongful discharge as articulated in Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974), is available only to an at-will employee. Such a reading is in my view too narrow. While the dictum in Geary of course does outline “a remedy for employees with no other recourse against wrongful discharge,” At 354, the tort of wrongful discharge also serves “the interest of the public in seeing to it that the employer does not act abusively and a proper balance between the employer’s and employee’s interests is preserved.” Yaindl v. Ingersoll-Rand Co., 281 Pa.Super. 560, 572, 422 A.2d 611, 617 (1980) (emphasis added). Our cases have consistently recognized this broader principle. In Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978), we identified the right to trial by jury as the public policy mandate violated by an employer who discharged an employee because he did not seek to be excused from jury service. In Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980), we similarly held that the public policy favoring rehabilitation of criminals, as well as the Pennsylvania Constitution, prevented a public employer from refusing to hire a job applicant solely because of a prior conviction unrelated to his ability to perform the job sought. In Yaindl we held that although the employee had failed to make out his case, the public policy favoring product safety could limit an employer’s discretion to fire “whistle blowers.” In light of the concerns emphasized in these cases, I believe that the majority mischaracterizes the tort of wrongful discharge when it states that the cause of action “was never intended to provide a forum to vindicate public policy and punish those who deviate from it.” At 354.

I should nevertheless not uphold a common law cause of action in this case if the collective bargaining agreement provided an equivalent remedy. The majority states that appellant is not “without recourse,” id., because he can file a grievance alleging discharge without “proper cause.” It is true that section 8 of the collective bargaining agreement provides for such a grievance; however, section 8(d) specifically authorizes a “make whole” remedy only:

Should it be determined by the Impartial Umpire that an employee has been suspended or discharged without proper cause therefor, the Company shall reinstate the employee and make him whole for the period of his suspension or discharge, which shall include providing him such earnings and other benefits as he would have received except for such suspension or discharge, and offsetting such earnings or other amounts as he would not have received except for such suspension or discharge. In suspension and discharge cases only, the Umpire may, where circumstances warrant, modify or eliminate the offset of such earnings or other amounts as would not have been received except for such suspension or discharge.
R.R. at 45-46.

It is therefore apparent that punitive damages would not be available to appellant in arbitration. Cf. John Morrell & Co., 69 LA 264 (1977).

The majority does not find this difference in remedies compelling; it points out that the contractual employee may obtain reinstatement, unavailable to the at-will employee in a wrongful discharge action. If, however, the tort of wrongful discharge satisfies a public as well as a private interest in circumscribing employer discretion, as I believe it does, then punitive damages are a necessary component of the remedy. As the Illinois Supreme Court reasoned in extending the tort of wrongful discharge to unionized employees, “If there is no possibility that an employer can be liable in punitive damages, not only has the employee been afforded an incomplete remedy, but there is no available sanction against a violator of an important public policy of th[e] State.” Midgett v. Sackett-Chicago, Inc., 105 Ill.2d 143, 150, 85 Ill.Dec. 475, 479, 473 N.E.2d 1280, 1284 (1984). The public interests implicated in the retaliatory discharge of a contractual employee are no less than those implicated in the retaliatory discharge of an at-will employee, and deserve no lesser protection.

I should reverse the order granting summary judgment and reinstate the complaint.

      . Although punitive damages are not generally available under collective bargaining agreements, if the agreement is silent as to remedies, arbitrators can award punitive damages. See John Morrell & Co., 69 LA 264 (1977); Local 416 v. Nelgesteel Corp., 80 LRRM 2113 (E.D.Wis. 1971).

      . Although this is the first appellate decision in the Commonwealth to so hold, we note that the Federal Courts in Pennsylvania, when construing Pennsylvania law, have consistently held that the action is restricted to at-will employment relationships. See Polsky v. Radio Shack, 666 F.2d 824 (3d Cir.1981); Perks v. Firestone Tire and Rubber Co., 611 F.2d 1363 (3d Cir.1979).

      . I recognize, as the majority notes, that federal courts have applied the Pennsylvania tort of wrongful discharge only to at-will employees. State courts, however, are not bound by federal interpretation of state law. See, e.g., Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609, 182 A.2d 199 (1962).


author: OLSZEWSKI, Judge: BROSKY, Judge,

text:
    503 A.2d 39
    COMMONWEALTH of Pennsylvania v. David BRYANT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 6, 1985.
    Filed Jan. 17, 1986.

      Robert B. Mozenter, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before BROSKY, ROWLEY and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This appeal follows appellant’s jury conviction of conspiracy, robbery and related offenses. The offenses stem from three separate incidents and resulted in a sentence of 15 to 57 years. Appellant challenges: (1) the trial court’s denial of his motion to suppress; (2) the effectiveness of trial counsel; (3) the trial court’s denial of his motion for new trial based on ineffectiveness of counsel; and (4) the propriety of imposing consecutive, cumulative sentences.

In April of 1982, three taverns in a two-block area in Philadelphia were the scene of armed robberies: Jolly’s Bar on April 10, Mac’s Bar on April 26, and Denny’s Bar on April 28. The robberies of these taverns were distinguished from other robberies in the area by their modus operandi. The victims’ description of the robber was the same in each incident.

On April 29, Melvin Prophet was arrested for the robbery of Denny’s Bar. Victims of that robbery had recognized Prophet and identified his accomplice as “Dave.” During a search of Prophet’s home, pursuant to a warrant, stocking masks, loose ammunition, and a sawed-off shotgun were discovered. Prophet’s grandmother and sister told police they believed appellant, David Bryant, brought the shotgun into the house.

Less than two weeks later, police arrested Anthony Bryant (unrelated to appellant) in connection with other robberies in the same neighborhood. When questioned about the robbery at Denny’s Bar, Anthony Bryant told police that Prophet had admitted robbing Denny’s with appellant, David Bryant. Without further investigation, an arrest warrant for appellant was obtained on May 15, 1982.

On October 5, 1982, the bartenders from Mac’s Bar and Jolly’s Bar identified appellant from a photo lineup as the perpetrator of those robberies. Warrants were issued, and the appellant was arrested on October 7 for the Mac’s Bar robbery. At that time, appellant made an inculpatory statement regarding that robbery. He was arrested on October 15 for the robbery of Jolly’s Bar.

At trial, appellant based his motion to suppress on the absence of probable cause to arrest for the robbery of Denny’s Bar. In connection with the robbery of Mac’s Bar, the motion to suppress was based on the failure of the Commonwealth to show that the photo lineup was not unduly suggestive and the inculpatory statement was voluntarily given.

Appellant’s arrest for the April 28 robbery of Denny’s Bar was legal. The United States Supreme Court has abandoned the “two-pronged test” of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 27 L.Ed.2d 637 (1969), and replaced it with a “totality of the circumstances” approach. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The court explained this approach:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place and the duty of the reviewing court is simply to insure that the magistrate had a ‘substantial basis for ... concluding’ that probable cause existed.

Id. at 238, 103 S.Ct. at 2332.

We hold that there was sufficient probable cause to arrest in light of the totality of the circumstances. There was no error in the trial court’s refusal to suppress evidence related to the appellant’s arrest for the robbery of Denny’s Bar.

Upon review of the record, we agree with appellee that the issues relating to the April 26, 1982 robbery of Mac’s Bar are not properly before us on appeal. The bill numbers appealed were 2984-2989; 3069-3071; and 3074-3076 of the October term, 1982. The charges related to the Mac’s Bar robbery were docketed at numbers: 383, 387-389 of the December term, 1982. Accordingly, we dismiss these arguments of appellant.

Appellant argues that his trial counsel was ineffective in two instances: counsel’s failure to move to sever the charges, and counsel’s failure to call a crucial alibi witness. The law regarding an accused’s right to effective assistance of counsel appears uncertain in the wake of recent United States Supreme Court and Pennsylvania Superior Court decisions. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2502, 80 L.Ed.2d 674 (1984); Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984) (en banc) (Cirillo, J.; Spaeth, P.J., Beck and Popovich, JJ., concurring in the result; Brosky, J., dissenting). The Supreme Court in Strickland required a challenge to counsel’s effectiveness to show: (1) that counsel’s performance was deficient, and (2) that the deficiency prejudiced the defense so as to deprive the defendant of a fair trial. Strickland, 466 U.S. at 686-687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

Garvin viewed the Strickland two-pronged analysis as a clarification of, not a change in, the Pennsylvania standard. Garvin, 335 Pa.Super. at 562-565, 485 A.2d at 37-38. The Pennsylvania standard was also seen as having two parts, a performance component and a prejudice component. Id. In Pennsylvania, the prejudice component was largely unarticulated, and the analysis “focused ... on the principles by which counsel’s strategy in a given case (could) be scrutinized.” Id. The initial inquiry of the performance component was whether the underlying issue had some arguable merit. If it did, the court would go on to “determine whether the particular course of action chosen had some reasonable basis which would effectuate the best interest of the client.” Garvin, 335 Pa.Superior Ct. at 564, 485 A.2d at 38, citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). In making this determination, “alternatives not chosen by counsel are evaluated within the context of his trial 'strategy.” Garvin, 335 Pa.Super. at 564-567, 485 A.2d at 38-39. The standard is that “counsel’s assistance is deemed constitutionally effective once we are able to concede that the particular course chosen by counsel had some resonable basis designed to effectuate his client’s interests.” Maroney, 427 Pa. at 604, 235 A.2d at 352, cited in Garvin, 335 Pa.Super. at 562 n. 1 and 564, 485 A.2d at 37 n. 1 and 38 (adopting Maroney’s enunciation of performance component of ineffective assistance of counsel analysis).

This analysis is supported by the Pennsylvania Supreme Court’s decision in Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984). In enunciating the standard that controls a determination of ineffective assistance of counsel, the court first quoted Maroney. Clemmons, 505 Pa. at 360, 479 A.2d at 957. This is the performance component in Garvin. The Clemmons court went on to state that the burden of proving ineffectiveness was on the client. It required a showing that “counsel was arguably ineffective and the likelihood that (the client) was prejudiced as a result thereby.” Clemmons, 505 Pa. at 362, 479 A.2d at 958. This is the prejudice component in the Garvin analysis. In this case we do not reach the question of prejudice, since our inquiry ends with the analysis of counsel’s performance.

It was clearly not ineffective assistance for counsel to agree with the consolidation of charges against appellant. This is not to say that such was the wisest course of action. It is enough that counsel sought consolidation of the charges with some reasonable strategy in mind designed to effectuate his client’s interests. In this case, he acted so as to reduce appellant’s prior record score in the event of multiple convictions. The lower court rightly dismissed this argument.

Appellant’s second charge of ineffective assistance of counsel is that trial counsel erred in failing to call appellant’s mother to testify. Counsel had listed appellant’s mother as an alibi witness, but, following consultation with appellant and the witness, declined to call her, despite her presence in court, claiming she was “too nervous” and “ill.” The trial court instructed the jury that it could draw an adverse inference from the fact that a stated alibi witness did not testify. The question before us is whether “counsel made a deliberate informed choice.” Maroney, 427 Pa. at 604, 235 A.2d at 352. A careful review of the record indicates that he did. A witness who is “too ill” and “nervous” to testify is not likely to favorably impress a jury. Counsel’s failure to call appellant’s mother was reasonably designed to effectuate appellant’s interests if the mother could not offer a valid or believable alibi. By not calling her, counsel avoided a possibly devastating cross-examination and preserved appellant’s own testimonial alibi. Thus, counsel’s course of action did not amount to ineffective assistance of counsel. ■

Appellant argues that the lower court abused its discretion by imposing a manifestly excessive sentence upon him which also constitutes cruel and unusual punishment. A sentencing court abuses its discretion when it sentences in whole or in part based upon an impermissible factor. See, e.g., Commonwealth v. Staley, 229 Pa.Super. 322, 324 A.2d 393 (1974) (defendant exercising his right to trial); Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977) (defendant’s attitude in seeking to challenge his charges). However, in the present case, appellant only alludes to such a reliance by the trial court in his statement of the case and direct argument of the issue. Since there is no evidence that the trial court considered any impermissible factors in sentencing appellant, and since they are not excessive, we can only conclude that the sentences before us are proper.

Judgment of sentence affirmed.

ROWLEY, J., concurs in the result.

BROSKY, J., files concurring opinion.

BROSKY, Judge,

concurring:

I concur and write to correct what I perceive to be a misstatement regarding the grounds that will support a conclusion that a sentence was excessive.

Appellant raises an issue of excessiveness of sentence. The majority faults appellant for not alleging an impermissible factor considered by the sentencing judge. While the consideration by the sentencing judge of an impermissible factor is grounds for this Court to require resentencing, this is not the only way this remedy can be indicated. A sentence can also, simply, be excessive. See Commonwealth v. Campolei, 284 Pa.Super. 291, 292, 425 A.2d 818, 822 (1981). As I read appellant’s brief this is exactly what he is arguing. Since I find his argument to be without merit, I join the majority in its rejection of it, but on different grounds.

      . In each case an armed robber who had obscured his face, by mask or hat, yelled "this is a stick-up,” ordered the patrons to lie down, and after emptying the cash register and the patrons’ pockets, put the money in a paper bag.

      . The language of Gates applies equally as well to "seizures” of the person as it does to seizure of tangible property. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639 (1980).

      . See, for example, Commonwealth v. Calvert, 463 Pa. 211, 344 A.2d 797 (1975).


author: WIEAND, Judge: JOHNSON, Judge,

text:
    503 A.2d 409
    Richard SPEER and Joyce Speer, his wife, Appellees, v. Jane BARRY and Thomas Barry, Appellants, v. Robert W. JOHNS, Appellee.
    Superior Court of Pennsylvania.
    Argued April 9, 1985.
    Filed Nov. 22, 1985.
    Reargument Denied Jan. 30, 1986.

      Charles Kirshner, Pittsburgh, for appellants.
    John L. Elash, Pittsburgh, for Speer, appellees.
    Ira C. Houck, Jr., Pittsburgh, for Johns, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

Richard Speer and Joyce Speer, husband and wife, were tenants residing in one of the apartments of a duplex owned by Jane Barry in the City of Pittsburgh. On September 15, 1980, Richard Speer was injured when his foot broke through a board on the front porch used incommon by all tenants. He and his wife commenced an action against Jane Barry to recover damages for the injuries sustained as a result of his fall. Barry caused to be joined as an additional defendant an independent contractor, Robert W. Johns, who at the landlord’s request had made repairs to another part of the porch on September 11, 1980, four days prior to Speer’s fall. The action was tried before a jury which returned a verdict in favor of the Speers and against Jane Barry alone for $38,695. Post-trial motions were dismissed, and judgment was entered on the verdict. This appeal followed in which the appellant, Jane Barry, argues that trial errors compel a new trial. We disagree and affirm the judgment.

The first argument advanced by appellant is that the trial court erred when it required defense counsel to make an opening statement after the plaintiffs’ evidence had been presented and denied his request to make an opening statement following the opening statement by plaintiffs’ counsel. The right to present argument to the jury is part of a party’s constitutional right to be represented by an attorney in civil cases, and a court may not deny a party’s counsel the right to make an opening statement to the jury. Nestor v. George, 354 Pa. 19, 25, 46 A.2d 469, 473 (1946); Turley v. Hennis Freight Lines, Inc., 263 Pa.Super. 523, 532, 398 A.2d 699, 704 (1979). Pa.R.C.P. 223(a)(3), however, suggests that there is discretion in the trial court to regulate addresses by counsel to the jury; and so long as no clear abuse of discretion appears and no right of due process has been violated, the court’s exercise of discretion will not be reversed. 8 Std.Pa.Prac. Conduct of Trial § 48:13 (1982).

In earlier years, it was customary for the defense to make an opening statement to the jury at the conclusion of the plaintiff’s evidence. In more recent years, it has become the custom that defense counsel be permitted to determine whether to open to the jury at the conclusion of the opening by plaintiff’s counsel or at the conclusion of plaintiff’s evidence. This is the better practice and is generally followed by trial courts in this Commonwealth. In this case, however, appellant has failed to demonstrate that she was prejudiced because her counsel was required to make an opening statement at the conclusion of plaintiffs’ evidence. Prejudice will not be presumed; and in the absence thereof, we will not reverse the trial court’s exercise of discretion.

The trial court instructed the jury that appellant could be found liable on one of two theories. First, the trial court said, “she is liable if she, by the exercise of reasonable care, could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.” (N.T. Vi2-13/84, at 59.) Second, the trial judge charged, appellant should be found liable for any negligence committed by the independent contractor in repairing the porch. (N.T. Vi2-13/84, at 59.) Appellant argues on appeal that it was error to instruct the jury that the owner was vicariously liable for negligent conduct, if any, of the independent repairman.

The law in Pennsylvania is that a landlord cannot be held liable for the negligence of an independent contractor hired to make repairs. An undertaking to make repairs may be delegated to a contractor, for whose independent acts of negligence the landlord will not be liable. Rubin v. Girard Trust Co., 154 Pa.Super. 257, 259, 35 A.2d 601, 602 (1944). See also: Silveus v. Grossman, 307 Pa. 272, 161 A. 362 (1932); Bross v. Varner, 159 Pa.Super. 495, 496, 48 A.2d 880, 881 (1946); Martin v. Wentz, 145 Pa.Super. 424, 21 A.2d 444 (1941).

The trial court’s jury instruction was contrary to the law of Pennsylvania. Our review, however, cannot stop there. “To constitute reversible error ... an instruction to a jury must be shown not only to have been erroneous but harmful to the party complaining.” Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965).

A landlord may be held liable for bodily harm suffered by his or her tenants caused by dangerous conditions on portions of the property retained in the landlord’s control, if the landlord, by exercising reasonable care, could have discovered the condition and made the condition safe. See: Smith v. M.P.W. Realty Co., 423 Pa. 536, 539, 225 A.2d 227, 229 (1967); Devine v. Hollander, 192 Pa.Super. 642, 646, 161 A.2d 911, 913-914 (1960). See also: Fortunato v. Shenango Limestone Co., 278 Pa. 499, 503-504, 123 A. 482, 483 (1924); Lemmon v. Bufalino, 204 Pa.Super. 481, 483, 205 A.2d 680, 682 (1964). There was ample evidence in this case that the contractor had recommended replacement of the entire porch and that appellant had rejected his recommendation and had instructed him to limit his repair work to that portion of the porch which had previously been broken. A jury could find, therefore, that appellant knew of the deteriorating and defective condition of the porch and nevertheless made an affirmative decision not to make necessary repairs. Under these circumstances, the landlord would be independently negligent, and the jury could impose liability upon her alone.

The jury, having been asked to determine whether the independent contractor was negligent, found that he had not been negligent in failing to discover and/or repair the part of the porch which broke under the husband-plaintiff. The landlord’s liability, therefore, did not rest upon a finding that the contractor had been negligent but upon her own, independent negligence. Under these circumstances, it seems clear that the erroneous instruction regarding the landlord’s liability for negligent repairs made by an independent contractor was harmless.

Appellant also contends that the trial court erred when it failed to instruct the jury to determine whether the husband-plaintiff had been guilty of contributory negligence. When a plaintiff’s contributory negligence is in issue, it is error for a trial court to fail to charge the jury thereon. McCullough v. Monroeville Home Association, Post 820, Inc., 270 Pa.Super. 428, 431, 411 A.2d 794, 795 (1979). Where there is no evidence of contributory negligence, however, no instruction to the jury on contributory negligence need be given. 27 P.L.E. Negligence § 224 (1960). See also: Heffernan v. Rosser, 419 Pa. 550, 555, 215 A.2d 655, 657 (1966). In the instant case, the evidence did not show that the husband-plaintiff was testing a known danger or that he should have made use of an alternate route to avoid a known danger. On the contrary, the evidence showed that the defect was latent and neither obvious nor known to him. Therefore, it was not error to fail to charge the jury on contributory negligence. See: Brancato v. Kroger Co., Inc., 312 Pa.Super. 448, 455, 458 A.2d 1377, 1381 (1983).

Finally, appellant argues that a new trial is necessary because plaintiffs counsel expressed a personal opinion regarding the defective condition of the porch and the pain and suffering endured by his client. We disagree. Counsel’s argument did not suggest any facts that were not supported by evidence produced during the trial. If his arguments were phrased as expressions of opinion, it is clear that he did not leave the aréna of proven facts. Moreover, he repeatedly cautioned the jury that its collective recollection of the testimony was controlling and not his. A similar instruction was delivered to the jury by the trial court.

The trial court denied a defense motion for mistrial holding that the remarks of plaintiff’s counsel did not exceed the bounds of legitimate advocacy. The decision to grant or deny a mistrial because of remarks made by counsel is generally within the sound discretion of the trial court. Printed Terry Finishing Co., Inc. v. City of Lebanon, 247 Pa.Super. 277, 299, 372 A.2d 460, 471 (1977). Absent a clear abuse of discretion, an appellate court will not disturb a trial court’s ruling. Abrams v. Philadelphia Suburban Transportation Co., 438 Pa. 115, 119, 264 A.2d 702, 704 (1970). See also: Trayer v. King, 241 Pa.Super. 86, 92, 359 A.2d 800, 802 (1976); Wilf v. Philadelphia Modeling and Charm School, Inc., 205 Pa.Super. 196, 204, 208 A.2d 294, 298-299 (1965). We have reviewed the argument of counsel but find nothing therein sufficiently egregious to support a finding that the trial court abused its discretion when it denied appellant’s motion for mistrial.

Judgment affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I agree with the majority that the trial court’s jury instruction on appellant-landlord’s vicarious liability for the independent contractor’s negligence was contrary to the law of this Commonwealth. I must take issue, however, with the majority’s conclusion that the erroneous instruction was harmless.

The majority finds ample evidence in this case to support a finding that the contractor recommended replacement of the entire porch but appellant instructed him to repair only a portion thereof. Majority at 371. Thus, “[a] jury could, find, ..., that appellant knew of the deteriorating and defective condition of the porch and nevertheless made an affirmative decision not to make necessary repairs.” Id. (Emphasis added.)

Of course, a jury is free to accept all, part, or none of the testimony before it. Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980); Morrissey v. Commonwealth Department of Highways, 424 Pa. 87, 225 A.2d 895 (1967). We cannot enter the jury room; nor can. we delve into the minds of the jurors who have rendered the verdict.

It is impossible to conclude with absolute certainty in this case that the jury’s imposition of liability solely upon appellant-landlord demonstrates that the jury determined the independent contractor was not negligent. Since the jury may have found the landlord vicariously liable, based upon the erroneous charge, I would reverse the judgment in favor of the plaintiffs and award a new trial. Glider v. Commonwealth, Department of Highways, 435 Pa. 140, 255 A.2d 542 (1969); McCann v. Amy Joy Donut Shops, 325 Pa.Super. 340, 472 A.2d 1149 (1984).

      . A decision of the federal district court in Barclay Woolen Corp. v. W.E. Hulton Dyeing Co., 220 F.Supp. 598 (E.D.Pa.1963), is at variance with the Pennsylvania decisions and will not be followed.
      Similarly, a contrary rule espoused by the American Law Institute in Section 419 of the Restatement (Second) of Torts has not been adopted by the courts of this Commonwealth and does not represent the law in Pennsylvania.


author: OLSZEWSKI, Judge:

text:
    503 A.2d 414
    COMMONWEALTH of Pennsylvania, Appellant, v. Kenneth PELKEY, Appellee.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1985.
    Filed Nov. 29, 1985.
    Reargument Denied Feb. 6, 1986.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellant.
    James A. Wymard, Pittsburgh, for appellee.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   OLSZEWSKI, Judge:

This matter comes before us on appeal from an order suppressing the results of a blood alcohol test performed on appellee. For the reasons outlined below, we reverse the suppression court’s decision.

Appellee, Kenneth Pelkey, was involved in a serious motor vehicle accident on the evening of March 13, 1983, which resulted in the death of two individuals. A police officer at the scene, who helped the medics free appellee from the wreckage, noted that appellee was semiconscious and had an odor of alcohol on his breath. This same officer also approached the other accident victims and noted that although one was in a great deal of pain, the third victim exhibited no signs of life. After 45 minutes had passed, the medics finally removed appellee from the car and prepared to transport him to the hospital for treatment. At this time, the officer instructed the medics to have a blood alcohol test performed on the appellee. When the police later arrived at the hospital and learned that appellee’s blood alcohol content (BAC) was .223, he was then placed under arrest. Appellee now stands charged with two counts of homicide by vehicle (75 Pa.C.S.A. Sec. 3732); one count of driving under the influence (75 Pa.C.S.A. Sec. 3731(a)(1)); violation of traffic controls (75 Pa.C.S.A. Sec. 3112); and two.counts of homicide by vehicle while driving under the influence (75 Pa.C.S.A. Sec. 3735).

A suppression hearing was later held, at which time appellee alleged that the taking of his blood and the subsequent testing of it for alcoholic content constituted a violation of his Fourth and Fourteenth Amendment constitutional rights. The lower court affirmed the suppression motion and held that the blood sample had been taken without appellee’s consent and prior to his arrest, in violation of his constitutional right against unlawful searches and seizures. The Commonwealth now challenges the trial court’s decision. Appellant contends that the lower court erred in suppressing the results of the blood test where reasonable grounds existed for one to believe that the appellee (1) was driving under the influence of alcohol and/or a controlled substance, or (2) was involved in an accident in which someone was injured or killed. Appellant further argues that emergency room personnel were permitted to extract appellee’s blood without his consent under 75 Pa.C.S.A. Sec. 3755. We will address these arguments seriatim.

In the first instance, it is noteworthy that the Commonwealth’s appeal of a suppression order is proper as an appeal from a final order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution. Commonwealth v. Dugger, 506 Pa. 537, 546-547, 486 A.2d 382, 386 (1985). Since the certification requirement has been satisfied, we find that the Commonwealth has an absolute right of appeal to this Court to test the validity of the pre-trial suppression order.

It is well settled that the taking of a blood sample is a search and seizure subject to the protections of the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Commonwealth v. Murray, 441 Pa. 22, 271 A.2d 500 (1970). Although we agree with the trial court that a search incident to a lawful arrest is one method of validating this type of search, we shall not limit ourselves in holding that this procedure represents the only alternative. Because we find that the “implied consent” provision of the Motor Vehicle Code, 75 Pa.C.S.A. Sec. 1547(a), Act of June 17, 1976, P.L. 162, No. 81, Sec. 1; as amended December 15, 1982, P.L. 1268, No. 289, Sec. 5, supports the validity of the search at issue in this case, we reverse the suppression court’s holding. This section in pertinent part provides:

Sec. 1547. Chemical testing to determine amount of alcohol or controlled substance
(a) General rule. — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual control of the movement of a motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both; or
(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

Subsection (a)(1) of the above statute authorizes a seizure and a search incident to that seizure without arrest when an officer has “reasonable grounds” to believe that a suspect was driving under the influence of intoxicating liquor. Commonwealth v. Quarles, 229 Pa.Super. 363, 388, 324 A.2d 452, 466 (1974). Although the statute fails to define reasonable grounds, it has been construed to be the equivalent of probable cause. Id. Thus, probable cause exists when an officer has knowledge of sufficient facts and circumstances, gained through trustworthy information, to warrant a prudent man in the belief that the person seized has committed a crime. Commonwealth v. Hicks, 434 Pa. 153, 158, 253 A.2d 276, 279 (1969). We therefore find that reasonable grounds exist to justify the search and seizure conducted in this case, where the record reveals that a serious motor vehicle accident has occurred involving a driver who was found in a semiconscious state with the odor of alcohol on his breath. Accordingly, the absence of other physical characteristics of intoxication, such as an unsteady gait, Commonwealth v. Baker, 299 Pa.Super. 241, 445 A.2d 544 (1982), a disheveled appearance and slurred speech, Commonwealth v. Trefry, 249 Pa.Super. 117, 375 A.2d 786 (1977), is inconsequential to our decision.

In the instant case, a fatal accident had occurred. The record reveals that the “left front end of appellee’s vehicle was pushed almost to the driver’s door,” while the decedents’ vehicle was “bent practically in half.” We further note that the appellee was pinned against the steering wheel for 45 minutes before he was removed from the wreckage and transported to the hospital. At the time of the accident and later at the hospital, police noticed appellee was “going in and out of consciousness.” As a result, we respectfully disagree with the decision of the suppression court that the appellee’s rights were violated when a blood sample was taken prior to his arrest and without his consent.

We additionally find that under the language of the statute and relevant case law, an arrest does not have to precede a request for a blood sample. See Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974). Neither is chemical testing only valid when it occurs at the scene of the accident. Unlike the situation in Quarles, appellee was transported to the hospital for emergency medical treatment and not solely for a determination of his BAC level. Additional support for this proposition can be found in Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985). In this case, the Court found that a BAC test performed at the hospital constituted less of an intrusion than that which constitutionally might have occurred at the accident scene. This decision is premised on the fact that the police neither invaded nor seized and detained the individual in order to administer the test.

Additionally, we find support for the seizure and search conducted in this case under Sec. 1547(a)(2). On review of the record, we learn that when the officer arrived at the scene, he not only discovered that appellee was seriously injured, but that the other victims were ¿Iso badly injured and perhaps dead. Consequently, the officer was justified in ordering the blood test since he had reasonable grounds to believe appellee was involved in an accident resulting in serious injuries or death.

We further note that the absence of actual consent will not invalidate the administration of a blood test since consent will be implied upon a finding of reasonable grounds under Sec. 1547(a)(1). See Commonwealth v. Cieri, supra. Today, we extend this analysis to find the requisite implied consent where reasonable grounds exist for one to believe that appellee was involved in an accident resulting in injuries or death under 75 Pa.C.S.A. Sec. 1547(a)(2). Since we have already determined that the police had probable cause under Secs. 1547(a)(1) and (a)(2) to perform the BAC test, we therefore conclude that the absence of actual consent is irrelevant.

With respect to appellant’s final argument, we are satisfied that the blood test was properly administered under 75 Pa.C.S.A. Sec. 3755, since probable cause existed for one to believe that appéllee was driving under the influence of alcohol.

      . In construing the constitutionality of this section, this Court in Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974), noted that regardless of whether the ability to operate a motor vehicle is a right or a privilege granted by the Commonwealth, it cannot be conditioned on the surrender of one’s right to be free from unconstitutional searches and seizures.

      . Since the constitutionality of this section has not been properly raised before this Court, we express no views on this issue.