author: TAMILIA, Judge:

text:
    664 A.2d 1364
    COMMONWEALTH of Pennsylvania v. Ronald CAMERON, Appellant.
    Superior Court of Pennsylvania.
    Argued June 8, 1995.
    Filed Sept. 6, 1995.

      Enid W. Harris, Wilkes-Barre, for appellant.
    William P. O’Malley, Assistant District Attorney, Scranton, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

Ronald Cameron appeals from the October 19,1994, ten (10) to twenty (20) year judgment of sentence imposed after a jury found him guilty of possession of a controlled substance, delivery of a controlled substance and conspiracy to possess with the intent to deliver cocaine. Appellant was arrested and his apartment searched on the basis of information provided by two confidential informants and a corroborating surveillance team. Identifiable currency used in controlled purchases, a drug scale and cocaine were seized.

Appellant raises a number of issues for this Court’s consideration, beginning with the argument the Court of Common Pleas of Lackawanna County did not have jurisdiction to commence his trial on November 8, 1993 because his appeal from the July 14, 1993 Order denying his motion to suppress was, at the start of trial, pending in this Court. Although the Superior Court, subsequent to trial, granted the Commonwealth’s motion to quash, appellant avers because the Commonwealth had filed the motion to quash and this Court had accepted briefs and scheduled oral argument, there was every indication his motion to suppress would be considered on its merits. Trial, therefore, should have been continued pending the outcome of his appeal.

The resolution of appellant’s argument is controlled by Pa.R.A.P. 1701(b)(6), which states an appeal from an interlocutory Order does not preclude the trial court from proceeding with trial. The fact the Commonwealth had challenged appellant’s motion by filing a motion to quash does not alter the rule’s import.

Next, appellant argues the evidence seized from 718 Prescott Avenue, Apartment 5, out of which defendant allegedly sold cocaine, should have been suppressed because the search warrant was unsupported by sufficient probable cause. Appellant contends misstatements in the affidavit of probable cause concerning the reliability of the confidential informants, defendant’s address and criminal record, and the officers’ failure to exert control over a controlled buy, rendered the warrant invalid.

The standard for determining whether probable cause exists for the issuance of a search warrant is the “totality of the circumstances test” as set forth below:

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 a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding] that probable cause existed.”

Commonwealth v. Karns, 389 Pa.Super. 58, 566 A.2d 615 (1989), quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). However, if a warrant is based upon an affidavit which contains deliberate or knowing misstatements of material fact, the search warrant must be rendered invalid. Commonwealth v. Clark, 412 Pa.Super. 92, 602 A.2d 1323 (1992). In deciding whether a misstatement is material, the test is not whether the statement strengthens the application for the search warrant, but rather whether it is essential to it. Commonwealth v. Yucknevage, 257 Pa.Super. 19, 390 A.2d 225 (1978).

The suppression court found the affidavit of probable cause contained sufficient evidence upon which to issue the search warrant. The affiant, Detective Speicher of the Scranton Lackawanna County Task Force, was assured of one of the two confidential informant’s reliability, i.e. information previously provided led to arrests and convictions by Agent Hart of the Office of the Attorney General of Narcotics Investigation. The confidential informant told Hart an individual named Cameron was selling cocaine out of the 718 address and, in fact, executed a controlled purchase with Hart’s assistance. A few weeks later, a second reliable confidential informant also informed Speicher “Ron Cameron” was dealing cocaine from Apartment 5 of 718 Prescott. This confidential informant and Speicher executed a controlled buy through a third party, or an “unwitting informant,” from “Mike” at the 718 address. The unwitting informant told Speicher’s confidential informant the cocaine purchased was an “eight ball” of “Ron Cameron’s stuff.” Confidential informant number two’s reliability was attested to by Pennsylvania Trooper Bachman, a fact not included in the affidavit of probable cause. In further support of the request for a search warrant, Affiant Speicher averred he had also spoken with Parole Agent Golenberke who informed him Apartment 5 at 718 Prescott Avenue was occupied by Michael Morrison and Ronald Cameron. A surveillance team dispatched the same evening of the second buy confirmed pedestrian and vehicular traffic coming and going from the aforestated address, the visitors remaining only briefly before leaving.

We find this information, standing alone, provided a sufficient basis from which the magistrate could have issued a search warrant. The fact the affiant failed to inform the issuing magistrate he had no personal knowledge of confidential informant number two’s reliability, but relied on information provided by Trooper Bachman, does not constitute a misstatement of material fact or invalidate the confidential informant’s reliability. Likewise, Speicher’s averment, premised on information provided by Agent Golenberke, that appellant resided at the 718 address, contrary to appellant’s attestation, was not a deliberate misstatement of material fact and, in light of the purchases made and traffic observed, was nonessential to the issuance of the warrant. Based upon the totality of the circumstances with which the magistrate was presented, none of the alleged misstatements or omissions argued by appellant was essential to the finding of probable cause. We find sufficient probable cause existed upon which the magistrate could issue the search warrant.

Appellant also argues the evidence seized should have been suppressed because the same warrant was executed twice on March 18, 1992, without presenting the magistrate with new or additional probable cause. Appellant alleges at 9:25 a.m. on March 18, 1992, 718 Prescott Avenue, Apartment 5, was searched and resident Michael Morrison was arrested. Later that same day, appellant argues, the same warrant was impermissibly used to search and arrest him. In support of this argument, appellant relies on Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976), in which a warrant was executed on defendant’s person, business and home address and, the following day, a second warrant was secured to search more thoroughly defendant’s bedroom. Bruno argued the second search was illegal because the probable cause to search his room for the murder weapon was exhausted by the first search. The Bruno court disagreed, however, reasoning the police had presented sufficient additional information to support a probable cause showing contraband remained despite the initial search. Based on Bruno, appellant herein argues a second warrant was necessary in order to “seize” him later in the afternoon, after the initial search of 718 Prescott.

We note with disfavor that without citations to the record, it is extremely difficult for this Court to make sense of appellant’s argument and makes the resolution of this issue an even more tedious task. However, based on our review of the record, we find Bruno to be distinguishable from the factual scenario with which we are faced. Mr. Morrison and the 718 address were searched at approximately 9:30 a.m. on March 18th. Appellant was not present at that time. Later that same afternoon, appellant returned to the 718 address and, because the warrant issued had also authorized the search of Cameron’s person, officers legitimately executed the warrant as it pertained to appellant. Also, the record indicates any further search of the premises was consensual. Appellant has provided us with no basis upon which to find reversible error.

Also related to the March 18,1992 afternoon execution of the warrant, appellant argues officials used “trickery” to obtain entry to the premises, thereby violating the knock and announce rule and requiring suppression of all evidence seized. The trickery referred to by appellant is Detective Speicher’s alleged failure to immediately announce his authority and purpose to Marie Paszek, the Apartment 5 resident who answered the door. The fact Speicher also purportedly had his handgun drawn, appellant argues, constituted an impermissible forcible entry.

The record belies appellant’s argument. As the suppression court reasoned,

[I]n the present case, Detective Speicher knocked on the door of Apartment No. 5, 718 Prescott Avenue, and announced to the occupants that it was “Donny,” the unwitting informant. Marie Paszek opened the door and recognized Speicher as a detective who had been at the residence earlier in the day executing the search warrant. Detective Speicher informed her that he had a search warrant for the defendant. He also had his gun drawn at the time. He then entered the premises to conduct the search. On these facts, we fail to see how Detective Speicher violated the “knock and announce” rule.

(Slip Op., Cottone, J., 6/14/93, p. 8.) We find the court did not err by failing to suppress on the basis of this argument. See Commonwealth v. Regan, 254 Pa.Super. 555, 386 A.2d 89 (1978). (Police use of a ruse or trickery to initiate the execution of a search warrant is permissible where it is followed by an announcement of authority and purpose and by peaceful entry.)

Next, appellant argues he was compelled to proceed to trial pro se in violation of his constitutionally guaranteed right to counsel. It is appellant’s position the colloquy which occurred on July 12, 1993 was insufficient to show a knowing waiver of his right to counsel as required by Pa.R.Crim.P. 318, Waiver of counsel.

The record indicates appellant effectively waived counsel after appearing before the Honorable S. John Cottone and participating in a plea colloquy wherein he was duly advised of his rights and responsibilities before deciding freely to represent himself. See Commonwealth v. Neal, 387 Pa.Super. 165, 563 A.2d 1236 (1989). There was no error.

Lastly, the propriety of the jury selection process of Lackawanna County is called into question by appellant. The jury pool of the county is comprised of all those citizens, 18 years and older, who hold a valid Pennsylvania driver’s license. In selecting this method of securing an adequate number and cross-section of potential jurors, the county jury commission determined the number of individuals so classified equalled or exceeded the number of names contained in the county voter registration list. See In re: Filling the Jury Wheel, 81 CIV 5843 (September 17, 1981). Appellant argues, however, this plan unfairly excludes Afro-Americans, in particular those too elderly, poor or handicapped to obtain a license, and wrongly conditions the federal right to serve on a jury on the privilege of driving a motor vehicle, that privilege being afforded to only those individuals physically and mentally able to pass an exam and financially satisfy attendant fees and costs. Appellant contends he is entitled to a remand for an evidentiary hearing.

The Commonwealth responds appellant has waived his right to challenge the jury array by failing to comply with Pa. R.Cr.P. 1104, Lists of Trial Jurors and Challenge to the Array, which mandates all such challenges be made “not later than five days before the first day of the week the case is listed for trial ... and not thereafter, and shall be in writing, specifying the facts constituting the ground for the challenge.” Id. The record indicates pro se appellant presented his challenge on the first day of trial, November 8, 1993. However, we are unable to discern, from our review of the record, when this matter was listed for trial. Moreover, appellant’s challenge to the lack of Afro-American jury members, orally presented on November 8, 1993 and filed in written form on November 9, 1993, appears to have been entertained, albeit summarily, by the trial judge. Accordingly, we find the issue was not waived for purposes of appeal and will address it on the merits.

For a defendant to establish a prima facie violation of the fair cross-section requirement contemplated by the sixth amendment right to a jury, he must show 1) the group allegedly excluded is a distinctive group in the community; 2) representation of this group in the pool from which juries are selected is unfair and unreasonable in relation to the number of such persons in the community; and 3) the under-representation is due to systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Appellant via his challenge, makes an unsubstantiated argument Afro-Americans are a cognizable group excluded via Lackawanna’s use of those holding drivers’ licenses to establish its jury pool. However, without support to the contrary, it is logically concluded the group identified by appellant would most likely include Caucasians and other races, as well as men and women, individuals from all socio-economic classes and those who are handicapped yet choose to operate a motor vehicle. Appellant’s failure to meet the first element of Duren’s conjunctive test, by so establishing such a distinctive group, defined and limited by a clearly identifiable factor such as race or sex, effectively ends his constitutional challenge to the method employed to identify potential jurors. See U.S. v. Grisham, 841 F.Supp. 1138 (N.D.Ala.1994).

Appellant’s equal protection challenge to the composition of the jury pool is likewise devoid of merit due to his failure to identify himself as a member of the class against whom discrimination is being directed, see Grisham, supra, and his failure to establish there has been some actual purposeful discrimination in the jury selection process, see Ramseur v. Beyer, 983 F.2d 1215 (3rd Cir.1992). As the trial court stated:

Mr. Cameron’s assertion in this regard fails to show even a hint of purposeful racial, economic or other discrimination[.]

(Slip Op., Walsh, 6/14/93, p. 18.)

Lastly, in the interest of logic and practicality, we are constrained to note, as Judge Walsh reveals in his illuminating Opinion, the use of the licensed driver list rather than the voter registration list has, in compliance with 42 Pa.C.S. § 4521, Selection of prospective jurors, expanded the number of names in the 1994 available jury pool from 119,622 to 174,456, a fact most likely to have increased the number of minorities and social and physically disadvantaged individuals available for selection. Restrictions on qualified persons serving as jurors might apply to a greater degree on persons who suffer from an impediment to sight or from a condition such as epilepsy or advanced age but much less likely to apply because of race. It is recognized that possession of a driver’s license is such a widespread and desirable privilege most fully practiced that it has become the linchpin for expanding voter registration. In short, no practice for obtaining random lists of names for prospective jurors, including voter registration lists, is foolproof and on balance, use of driver license registration lists appears to be more representative than most. We find Lackawanna County’s plan for the random selection of jurors through the use of Pennsylvania Department of Transportation’s list of licensed drivers over the age of 18 to be constitutionally sound.

Having found each of appellant’s arguments devoid of merit, we affirm the judgment of sentence entered October 19, 1994.

Judgment of sentence affirmed.

      . 35 Pa.S. § 780-113(16).

      . Id., § 780-113(30).

      . 18 Pa.C.S. § 903.

      . At a different time and/or place, voter registration lists themselves might have been suspect.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    664 A.2d 1370
    ADOPTION OF M.S., A Minor. Appeal of Henry and Lynn WAGNER.
    Superior Court of Pennsylvania.
    Argued March 14, 1995.
    Filed Sept. 6, 1995.

      Arthur L. Jenkins, Jr., Norristown, for appellants.
    Kate M. Kelly, Lansdale, for Annette Sheive, participating party.
    Sinikka Lawless, Amicus Curiae.
    Before HUDOCK, SAYLOR and HESTER, JJ.
   HESTER, Judge:

This appeal is from the denial of a petition filed pursuant to 23 Pa.C.S. § 2511(a)(1) and (2) for involuntary termination of parental rights regarding the minor child, Michelle S. Upon thorough review of the record, we find that the orphan’s court’s determination is well-supported by the evidence and in light of the appropriate standard of review, we affirm.

Annette S., appellee, the natural mother of Michelle, married Cedric S. in Georgia on November 22,1987. Notes of testimony (“N.T.”), 8/18/94, at 213. Cedric cannot be located. Their child, Michelle, was born August 26, 1988. Appellants, Henry and Lynn Wagner, husband and wife, are Annette’s brother and sister-in-law. They have been married for eight years and have no children of their own. Id. at 100. At the time of the hearing, Henry was thirty-two, Lynn was thirty-seven, and Annette was thirty-eight years old. Id. at 85, 100; trial court opinion, 10/14/94, at 2.

Annette and Michelle resided in the condominium of Annette and Henry’s mother in early 1989. Their mother, ill with cancer, died in March, 1989. N.T., 8/18/94, at 38. Following their mother’s death, Henry visited Annette at the condominium and told her that the condominium was to be sold and she would have to find another place to live. At that time, Annette, who holds a master’s degree in geology, was acting irrationally and was extremely distraught. Both Henry and a real estate agent he had retained testified that the conditions in the condominium were appalling, with cat urine and dirty diapers throughout. Soon after this confrontation, Annette disappeared with Michelle. Henry filed a missing persons report, and Annette was located in California. Id. at 43, 45. Annette and Michelle returned to Pennsylvania to find that they were locked out of the condominium and their belongings had been removed. After visiting Annette at a local motel, Henry commenced proceedings to commit Annette involuntarily to Norristown State Hospital and contemporaneously filed a petition seeking custody of Michelle. Id. at 50-51. Annette was committed but also was discharged approximately three days later.

A hearing was held on June 6, 1989, following which appellants retained custody of Michelle. Children and Youth Services of Montgomery County (“CYS”) was ordered to investigate the situation and provide supervised visitation between Annette and Michelle. Annette exercised visitation until May, 1990, when CYS terminated all visitation between Annette and Michelle. There is no order of court directing such action.

In June, 1990, Annette filed a petition to modify custody, but her mental stability apparently declined, and she voluntarily entered Norristown State Hospital in October, 1990, where she resided for five months. Id. at 241; N.T., 10/5/94, at 142. In the meantime, her custody petition proceeded to a hearing in January, 1991. Annette was in Norristown Hospital at the time, and her attorney did not receive prior notice of the hearing and failed to appear. No one explained to the court that Annette was unavailable; thus, the hearing proceeded ex parte, and the trial court awarded physical and legal custody to appellants. No appeal was filed from this order.

In April, 1991, upon discharge from Norristown State Hospital, Annette came under the care of Hedwig House, a psycho-social day program which operates in conjunction with the local mental health/mental retardation (“MH/MR”) services. N.T., 10/5/94,. at 148. During this supervision at Hedwig House, Annette obtained employment and her own living quarters. Id. at 133. Her involvement with Hedwig House terminated in April, 1994, roughly the time MH/MR terminated its services. Id. at 142; N.T., 8/18/94, at 168. Annette has been taking Haldol since she was in Norristown State Hospital in 1991. N.T., 8/18/94, at 242. She testified that the drug has allowed her “to lead a rather normal life.” Id.

Annette filed another petition to modify custody in June, 1991. In December, 1991, the common pleas court granted appellants’ preliminary objections and dismissed Annette’s petition. The December 27, 1991 order further provided that Annette could file a complaint for custody within twenty days of that date. No such complaint was filed.

In February, 1994, Annette obtained her present counsel. She filed a complaint for custody on March 31, 1994. Appellants filed the instant petition to involuntarily terminate Annette’s parental rights four days later. Hearings were held on August 18 and October 5, 1994. On October 14, 1994, the Honorable Stanley R. Ott denied appellants’ petition to terminate Annette’s parental rights to Michelle. Exceptions were filed, argued, and denied, and the court filed its final decree on November 29,1994. This appeal followed.

Appellants contend the orphan’s court abused its discretion in denying their petition to terminate ■ Annette’s parental rights to Michelle. The Pennsylvania Supreme Court recently reiterated the standard of review in cases involving the involuntary termination of parental rights.

In cases of involuntary termination of parental rights, the standard of appellate review is limited to the determination of whether the decree of the Orphan’s Court is supported by competent evidence. In re E.M. a/k/a E.W.C. et al., 533 Pa. 114, [115] 620 A.2d 481 (1993), quoting, Matter of Adoption of G.T.M., 506 Pa. 44, 46, 483 A.2d 1355, 1356 (1984); In re Adoption of B.D.S., 494 Pa. 171, 177, 431 A.2d 203, 206 (1981). Where the hearing court’s findings are supported by competent evidence of record, “we must affirm the hearing court even though the record could support an opposite result.” In re Adoption of B.D.S., 494 Pa. 171, 177, 431 A.2d 203, 206 (1981), quoting, Matter of Kapcsos, 468 Pa. 50, 54, 360 A.2d 174, 176 (1976).
In a proceeding to involuntarily terminate parental rights, the burden of proof is upon the party seeking termination to establish by “clear and convincing” evidence the existence of grounds for doing so. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re T.R., 502 Pa. 165, 465 A.2d 642 (1983). The standard of “clear and convincing” evidence is defined as testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue. Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-04 (1989).

In re Adoption of Atencio, 539 Pa. 161, 165, 650 A.2d 1064, 1066 (1994).

While the petition to terminate parental rights was filed pursuant to 23 Pa.C.S. § 2511(a)(1) and (2), appellants confine their argument on appeal to subsection (1). That section provides:

§ 2511. Grounds for involuntary termination
(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

The statute thus indicates that in order to terminate parental rights involuntarily, there must be a showing of both a six-month period of estrangement and either a settled purpose or intent to relinquish a parental claim or a failure to perform parental duties.

To establish a settled purpose to relinquish a parental claim, appellants must show that Annette made a deliberate decision to terminate the parent-child relationship throughout the six-month period. Matter of Adoption of Barnett, 304 Pa.Super. 514, 450 A.2d 1356 (1982). Failure to have contact with the child for six months will not automatically forfeit a parent’s rights. In re Adoption of Hamilton, 379 Pa.Super. 274, 549 A.2d 1291 (1988). Moreover, this court consistently has refused to apply the statutory six-month time frame mechanically. In re E.S.M., 424 Pa.Super. 296, 622 A.2d 388 (1993). Instead, the court must consider the individual circumstances of each case. Id.

It is undisputed that Annette has not seen Michelle since CYS terminated her visits in May, 1990. Appellants testified at trial that Annette made no attempt to see her daughter since that time, and sent no cards, letters, or packages. Annette testified to the contrary, stating that she made substantial efforts to maintain contact with Michelle but that she was thwarted by appellants’ conduct. In resolving this case, the orphan’s court stated the following:

The most helpful evidence in resolving the factual dispute was [Annette’s] Exhibit 3, a package containing a doll purchased by [Annette] for Michelle’s third birthday and sent to her via UPS in September 1991. The package was returned with a notation that delivery had been refused, stating “does not want”. [Appellants] insist that to the extent the package was sent at all, it was returned because of an improper zip code. We don’t think so. Clearly the designation on the UPS return slip reflects that the receiver refused the package and did not want it. Although efforts made by [Annette] to communicate with her daughter in August/September 1991 are outside the six month period framed by [appellants’] petition, their refusal to accept the package is, we believe, indicative of their attitude throughout. We also attribute great weight to the testimony of [Annette’s and Henry’s] sister Sylvia, who corroborated the many efforts her sister made to send cards and gifts to Michelle. For these and other reasons, we have resolved the credibility issue in favor of [Annette] and we determine that she did consistently, within her means, engage in continuous and repeated attempts to reestablish parental contact with her daughter.

Trial court opinion, 10/14/94, at 7-8.

On appeal, appellants focus upon the fact that Annette did not file a complaint for custody within the twenty-day period identified in the December 27, 1991 order wherein the common pleas court sustained appellants’ preliminary objections and dismissed Annette’s petition to modify custody. The record is very clear as to why Annette failed to do so. It is uncontradicted that Annette was an in-patient at Norristown Hospital in December, 1991. In fact, she remained there until April, 1992. Throughout the following two years, Annette clearly strove to control her mental illness and to establish a living situation wherein her child could thrive. Moreover, “[wjhere a parent makes reasonable attempts to overcome obstacles created by the party seeking to terminate parental right, ‘a mere showing that the parent could conceivably have pursued legal action more promptly cannot justify termination of parental rights.’ ” In re Adoption of C.M.W., 412 Pa.Super. 360, 366, 603 A.2d 622, 625 (1992), quoting In re J.G.J., 367 Pa.Super. 425, 434, 532 A.2d 1218, 1223 (1987).

The record establishes that when Annette was placed on the drug Haldol, she began to function without significant impairment. N.T., 8/18/94, at 242-43; N.T., 10/5/94, at 153-55. She progressed from an in-patient in a mental institution for five months to a transitional living residence, turned a volunteer position in a library into a full-time paid position, and found a home to share with a room-mate in a neighborhood with many children. N.T., 8/18/94, at 209, 241; N.T., 10/5/94, at 124-27, 130.

Annette testified that she sent cards and letters to her daughter once a month and sent her gifts at holidays. Appellants scoff at Annette’s testimony in this regard, noting that “it is apparent from the record that the minor child could not read.” Appellants’ brief at 14. However, it is clear to us, as it was to the trial court, that Annette was utilizing the means at her disposal to maintain the relationship with her child. Appellants’ denials aside, the record supports the determination that Annette sent cards and letters to Michelle that were cast aside and packages that were refused or discarded. Annette was relegated to sending Michelle gifts via her sister, Sylvia, to ensure that appellants would give them to the child. N.T., 10/5/94, at 162. She was unable to telephone Michelle after appellants changed their telephone to an unlisted number. Annette clearly stated that her reluctance to “show up” at appellants’ doorstep was caused by her fear that Henry would seek another involuntary commitment coupled with her belief that appellants had sought a protection from abuse order against her. Henry admitted to seeking a PFA order, however there, is no such order in the record. N.T., 8/18/94, at 92.

Finally, like the trial court, we find In re E.S.M., 424 Pa.Super. 296, 622 A.2d 388 (1993), to be distinguishable from the instant case. In that case, we determined that the natural father personally made only a cursory effort to assume his parental position, i.e., one telephone call. Clearly, the obstacles placed in Annette’s path were significant and ongoing, and we believe, as did the trial court, that she exhibited reasonable firmness in attempting to overcome both her mental illness and appellants’ obstructive behavior.

We are reminded of words of the Pennsylvania Supreme Court nearly fifteen years ago and find that they are, unfortunately, applicable today.

[Father’s] testimony, believed by the Orphan’s Court, demonstrated a design by appellant and her husband to deter appellee from the performance of his parental duties. The increasing frequency of cases similar to the present one convinces us of the need for a stern warning that obstructive behavior on the part of the custodial parent aimed at thwarting the other parent’s maintenance of a parental relationship will not be tolerated, and certainly will not provide a sound basis for the involuntary termination of parental rights.

In re Adoption of B.D.S., 494 Pa. 171, 179, 431 A.2d 203, 207 (1981) (overruled in part on other grounds by In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986)).

Decree affirmed.

      . We note that counsel for appellants failed to supply the notes of testimony from August 18, 1994, thereby necessitating our order of July 11, 1995, directing counsel to supplement the record. We remind counsel:
      that the Superior Court may only consider documents properly incorporated within the certified record. Gemini Equipment v. Pennsy

        Supply, 407 Pa.Super. 404, 412 n. 5, 595 A.2d 1211, 1215 n. 5 (1991). The defect in the case sub judice is not cured by the fact that appellant has provided a copy of the trial transcript in the reproduced record. Paper may not be made part of the certified record simply by reproducing it. Id.

      The certified record consists of the original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court. See Pa.R.A.P., Rule 1921, 42 Pa.C.S.A. (composition of record on appeal); Frank v. Frank, 402 Pa.Super. 458, 463 n. 5, 587 A.2d 340, 342-43 n. 5 (1991). "It is the obligation of the appellant to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal.” Fiore v. Oakwood Plaza Shopping Center, Inc., 401 Pa.Super. 446, 460-61, 585 A.2d 1012, 1019 (1991). "For purposes of appellate review, what is not of record does not exist.” Frank v. Frank, supra.

        Floyd v. Philadelphia Elec. Co., 429 Pa.Super. 460, 462-63, 632 A.2d 1314, 1315 (1993). While counsel eventually complied with our July 11, 1995 order, we note with consternation that he did so more than three weeks beyond the time directed, thereby delaying resolution of this case unnecessarily.


author: HESTER, Judge.

text:
    664 A.2d 1375
    Maryann F. LENZI, Appellant, v. HAHNEMANN UNIVERSITY. Maryann F. LENZI v. HAHNEMANN UNIVERSITY, Appellant. Anthony ZUMPANO v. HAHNEMANN UNIVERSITY, Appellant. Anthony ZUMPANO, Appellant, v. HAHNEMANN UNIVERSITY.
    Superior Court of Pennsylvania.
    Argued May 24, 1995.
    Filed Sept. 8, 1995.

      Mark E. Kogan, Philadelphia, for Maryann F. Lenzi & Anthony Zumpano.
    Howard R. Flaxman, Philadelphia, for Hahnemann University.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   HESTER, Judge.

Maryann Lenzi and Anthony Zumpano appeal from the July 15, 1994 Philadelphia County Court of Common Pleas order which vacated an August 4, 1992 adjudication and ordered a new trial. The underlying litigation commenced when appellants filed individual actions against appellee, Hahnemann University, seeking money allegedly owed to them pursuant to the salary continuation provisions of their respective separation release agreements. The agreements were executed when appellants’ employment was terminated due to downsizing. Appellants maintained that payments were to continue, in accordance with the terms of the agreement, in the event of re-employment. The separate actions were consolidated at a nonjury trial wherein appellee, which maintained that payments were to cease upon re-employment, filed a counterclaim against Ms. Lenzi seeking to recover payments which were issued subsequent to her re-employment. When verdict was entered in favor of appellee, appellants filed a motion for a new trial or for judgment notwithstanding the verdict. The trial court granted a new trial. We reverse and order that judgment n.o.v. be entered in favor of appellants.

The pertinent facts follow. This case originally was filed as two separate actions. Appellants had been employed by appellee; Ms. Lenzi was the Acting Associate Director of Fiscal Services, and Mr. Zumpano was the Assistant Controller. In January, 1990, appellee implemented a major reduction in its work force affecting approximately 150 employees. In conjunction with the terminations, appellee drafted an Income Continuation Policy, dated January 5,1990, wherein the stated objective was: “To provide income for a limited period to employees who have been involuntarily separated from employment while they seek other employment.” Further, while it stated that income continuation allowance payments would continue until employees obtained other employment, it also provided that the procedures in the policy were effective unless otherwise covered by a signed contract with the University. Moreover, it contained the following contingency. “To be eligible for additional income continuation allowance payments, the employee must also have a signed and witnessed Separation Release Agreement.” Upon termination, appellants each were given an envelope which contained a termination letter (“letter”), a separation release agreement (“SRA”), and appellee’s policy on income continuation (“policy”), all of which were drafted by appellee and its attorneys.

The termination letters were signed by an officer of appellee and stated that appellants’ positions with appellee had been eliminated. The letters provided that compensation and benefits would continue for three weeks and terminated employees were eligible for additional income and the continuation of benefits as provided by an attached schedule and SRA as long as the employees signed the SRAs within three weeks. The letters emphatically warned, “It is important that you return the [signed SRA] [to the Vice President of Human Resources] by [the specified date]. If we do not receive the signed SRA by that date, you will have rejected the additional income continuation benefits.” It is implied that the three weeks income would continue regardless of the return of a signed SRA. Therefore, only the additional income benefits described in the attached schedules were contingent upon appellees’ compliance with the SRA and its terms.

The letter referred to the SRA as a “binding contract” between appellants and appellee, the purpose of which was to “finally resolve all questions of compensation, entitlement to benefits, and any and all other claims, whether known or unknown which the employee may have” relating to employment or termination, (emphasis added). In consideration for payments made in accordance with attached schedules, appellants’ signatures on the SRA evidenced their promise not to hold appellee responsible for any liability resulting from their termination for reasons including but not limited to “age, race, or sex, or wrongful termination ...” Moreover, appellants’ signatures reflected their promise not to file charges against appellee with any government agency in return for receiving the benefits outlined in the attached schedule. There were no conditions of payment stated in the SRA other than appellants’ signatures. Lastly, the SRA provided, “This document supercedes and terminates any written or oral contracts of employment which may have been in existence between the parties prior to this date. Any changes to this agreement must be in writing and initialed by both parties.” Neither the letter nor the SRA referenced the policy.

At trial, appellants argued that they were entitled to continued separation payments under the terms of the SRA in accordance with the attached schedules, regardless of the fact that they had secured other employment. Specifically, they maintained that the signed SRAs were evidence of the sole and all-inclusive separation contract between themselves and appellee. Appellee countered that all three documents which were presented to each employee upon dismissal comprised the separation contract between itself and the terminated employee and argued that if the three documents were read together, it was clear that the SRA was subject to the policy’s condition that separation payments would cease upon reemployment. Appellee also argued that it was entitled to $2,852.30 in severance payments it inadvertently made to Ms. Lenzi after she gained employment.

On January, 21, 1992, after hearing testimony from appellee explaining its intention with respect to the SRAs and income continuation payments, the trial court held that the three documents contained in the envelope given to the displaced employees comprised the separation contract and awarded $2,852.30 to appellee. Appellants, who sought post-trial relief, requested either judgment n.o.v., arguing that appellee failed to present evidence that the SRA was not a fully integrated writing, or a new trial on the basis that the court erred in allowing appellees to introduce parol testimony as to the parties’ intentions and understanding with regard to the income continuation policy.

On July 15,1994, the court entered an order which acknowledged that the SRA appeared to be an integrated contract and vacated its previous judgment. However, instead of directing a verdict in favor of appellants, it granted a new trial, not because it conceded it had erred in allowing parol evidence regarding the income continuation policy, but to give appellee the opportunity to present evidence on the effect of the SRA in the context of corporate downsizing. This appeal followed.

Appellants contend that appellee presented no evidence which legally would alter the premise that the SRA was not the fully integrated, unambiguous expression of the parties’ intentions that it purported to be. They argue that the trial court erred when it permitted appellee to introduce testimony as to its intent and claim that this error resulted in an improper verdict. Finally, they maintain that the trial court abused its discretion when it granted a new trial to allow appellee to introduce evidence regarding the impact of release agreements on corporate downsizing and urges that the court should have granted their motion in favor of the non-verdict winner.

In its cross-appeal, appellee claims that the court abused its discretion by ordering a new trial for reasons not specified or preserved by appellants in their motion. It also maintains that the trial court erred in vacating its August 4, 1992 decision which determined that three documents, a letter of termination, a separation release agreement, and a policy statement, not simply the separation agreement, comprised the complete contract with appellants. Appellee requests that we reverse the July 15,1994 order and reinstate the August 4, 1992 order.

Following a thorough review of the record, we conclude that the trial court was correct in its determination that the SRA represented a comprehensive contract which was not dependent upon the other two documents in the envelope presented to employees upon termination. However, since the trial court erred when it granted a new trial instead of granting appellants’ motion for judgment n.o.v. and back payments plus interest, we are constrained to reverse.

The following is undisputed. Appellants were employees of appellee, and their employment was terminated with three weeks severance pay. In addition, pursuant to the SRA, the employees’ salaries would continue for an additional, but finite, period in return for the employees’ promises not to pursue legal avenues otherwise available. The SRA was drafted by appellee and clearly purports to be a fully-integrated, unambiguous expression of the parties’ intentions upon termination. The SRA does not reference the other documents contained in the envelope.

The policy clearly provided that the income continuation procedure applies to displaced employees while they seek other employment. Further, it specified that it superceded other policies, not contracts, which were previously issued by the University regarding severance and stated that the procedures it contained applied unless a contract between the employee and the University existed. Moreover, in the event that a procedure is specified by contract, the policy states that the contract shall govern and take precedence over the policy. While the policy referred to an attached exhibit which was designed to aid the employee in calculating maximum income continuation allowances, it made no reference to either the letter, the SRA, or the attached schedule. Clearly, the policy regarding income continuation did not purport to be a contract. It was not signed, nor did it evidence any bargained-for-exchange or consideration. Further, the policy did not supercede any contract between appellee and its employees. Therefore, we must look to the SRA and determine whether it meets the criteria for an integrated, unambiguous contract.

A purview of the SRA reveals that it is a contract which contains terms, signatures, bargained-for-exchange, and consideration. On its face, the document states that it is the sole expression of the agreement between the parties, that no other document before or after it shall supercede it. It is well-settled that parol evidence is not admissible to alter or vary the terms of a contract which has been reduced to an integrated writing. “The parol evidence rule seeks to preserve the integrity of written agreements by refusing to permit the contracting parties to attempt to alter the import of their contract through the use of contemporaneous oral declarations.” Rose v. Food Fair Stores, Inc., 437 Pa. 117, 120-121, 262 A.2d 851, 853 (1970). If a written contract is unambiguous and held to express the embodiment of all negotiations and agreements prior to its execution, neither oral testimony nor prior written agreements or other writings are admissible to explain or vary the terms of that contract. McGuire v. Schneider, Inc., 368 Pa.Super, 344, 534 A.2d 115 (1987); see also Gemini Equipment v. Pennsy Supply, 407 Pa.Super. 404, 595 A.2d 1211 (1991) (written contract, if unambiguous, must be held to express all negotiations, conversations, and agreements made prior to its execution, and neither oral testimony, nor prior written agreements are admissible to explain or vary contract terms). The issue of whether a writing constitutes an integrated contract is a question of law. Murray v. University of Pennsylvania Hospital, 340 Pa.Super. 401, 490 A.2d 839 (1985). A contract is integrated if it represents a final and complete expression of the parties’ agreement. McGuire v. Schneider, Inc., supra. Where a contract purports to be a complete legal obligation without any doubt as to its object or extent, it is presumed to reflect the whole legal right of the parties. Id.

Herein, the SRA clearly purports to constitute a final and complete expression of the rights and obligations of the parties. In pertinent part, the release provides:

Both Hahnemann and the Employees desire to enter into this Agreement to finally resolve all questions of compensation, entitlement to benefits, and any and all other claims, whether known or unknown, which the Employee may have relating to his/her employment and/or its termination by Hahnemann.
This document supercedes and terminates any written or oral contracts of employment which may have been in existence between the parties prior to this date.
Any changes to this agreement must be in writing and initialed by both parties.

Appellants claim that since the SRA is an integrated document, the trial court erred in allowing appellee to present testimony regarding the intent of the parties. Appellants are mistaken in their interpretation of controlling principles. The parol evidence rule does not preclude the admission of evidence to establish whether the parties intended the writing to be a complete embodiment of their agreement. Murray v. University of Pennsylvania Hospital, 340 Pa.Super. 401, 490 A.2d 839 (1985). Appellee correctly notes that since whether the writing constituted the entire agreement was a question of law for the court, the trial court properly allowed appellee to present testimony that appellants understood that the policy, letter, and SRA represented the entire contract. The trial court did not accept the introduction of parol evidence to vary the terms of the SRA, but allowed the testimony to aid in defining the intent of the parties with regard to the termination of employment. Therefore, the introduction of testimony as to intent was relevant to the ultimate issue as to whether the SRA was a fully integrated writing and did not constitute error.

In providing the court with testimony concerning its intent, appellee sought to prove that the SRA did not embody the complete terms of separation. In essence, appellee presented a circular argument that the SRA was not fully integrated because appellee did not intend it to be, and appellee tenaciously tried to convince the court that appellants were aware of that intent. Specifically, appellee maintained that the termination contract, consisting of the three documents, comprised the true contract. However, other than appellee’s offers of testimony that appellants knew or should have known that the three documents were an all-inclusive representation of the termination contract, appellee failed to address the prominent lack of any written incorporation by reference of the policy to the otherwise specific SRA contract.

After a thorough review of the testimony, we concur with the trial court’s revised determination which evaluates the evidence in light of controlling case law:

Upon reflection, this court believes that the determination that each contract at issue is comprised of a letter, a release and a policy does not completely address the rights and obligations of the the parties under each contract, because of the unique effect of release.
If, ... the release is to be strictly construed as containing all the terms of the release, the continuation of separation payments is not conditioned upon a terminated employee’s remaining unemployed. The only condition to receiving separation benefits that is specifically mentioned in the release is that the terminated employee must sign the release.
[Quoted language] appear[s] to indicate that the agreement is to be regarded as a self-contained document for the purpose of determining the parties’ rights and obligations with respect to separation payments.

Trial Court Opinion, 12/20/94, at 7.

However, the court, then deviated from its correct analysis when it credited, on its face, appellee’s argument that Pennsylvania law recognizes that two contracts may be construed together to represent a complete transaction even where the subsequent contract contains an integration clause. Neville v. Scott, 182 Pa.Super. 448, 127 A.2d 755 (1956). What the trial court herein failed to consider is that we may only utilize this method where two contracts exist, and where one contract does not provide for a complete representation of the intent of the parties. Id. Clearly, the separation agreement in question is an irrevocable contract for which appellants gave substantial consideration, was executed by both parties, and stands on its own terms; whereas, the policy is a unilateral document devoid of consideration, unsigned, and by its own terms not applicable to the SRA. See Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830 (1986) (employee handbooks are not contracts since they lack consideration). Therefore, the facts provide that there are not two contracts at issue. Consequently, the SRA is the only contract between the involved parties, and Neville v. Scott, supra, is not controlling.

However, if, as appellee argues, the policy and the testimony which it offered as evidence prove that the parties intended that income continuation payments were to be little more than additional unemployment compensation payments which would continue only until the displaced employees secured other employment, then likewise, it would follow that the intent of the parties must have been that the SRA represented merely a suspension of the employees’ rights to sue appellee until income continuation benefits ceased. This illogical premise would render the SRA null and void upon re-employment, and therefore, worthless, since all legal rights of the displaced employees would be reinstated as soon as they became reemployed. Instead, it appears that first, appellee agreed to provide its employees with a separation package in return for their past performance and future assurance not to seek legal retribution against appellee for their dismissal. Then, appellee sought a means by which to curtail its expenditures and decided to renege on the income continuation offers at its earliest convenience. Appellee seized that opportunity, while limiting its liability, by attempting to bootstrap the income continuation policy to the SRA contract so as to buttress reemployment to early cessation of payments.

We are constrained to reverse the order granting a new trial, and we grant judgment n.o.v. in favor of appellants. Monetary award to each appellant shall be equal to the remaining sum owed to each employee, as provided in Schedule A less payments, plus interest.

Order reversed. Judgment n.o.v. granted in favor of Maryann F. Lenzi in the amount of $49,059.56, plus interest. Judgment n.o.v. granted in favor of Anthony Zumpano in the amount of $22,248.00, plus interest. Case remanded. Jurisdiction relinquished.

      . While we recognize that Hahnemann has filed a cross-appeal in this action, it is for ease that we refer to it as appellee.

      . Mr. Zumpano received his envelope on January 9, 1990, and Ms. Lenzi received her envelope on June 13, 1990.

      . For Ms. Lenzi, payments of bi-weekly compensation in the amount of of $2,852.30 less deductions, would continue through April 3, 1991. Appellee ceased payments on August 22, 1990, leaving a purported contractual obligation of $49,059.56, plus interest. For Mr. Zumpano, payments of bi-weekly compensation in the amount of $3,090.00, less deductions would continue through November 20, 1990. Appellee ceased payments on August 17, 1990, leaving a purported contractual obligation of $22,248.00, plus interest.

      . Mr. Zumpano’s SRA was signed and dated, January 25, 1990. Ms. Lenzi's SRA was signed and dated, June 21, 1990.

      . We note once again that the policy is dated, January 5, 1990, while the SRAs are dated June 21, 1990, and January 25, 1990.


author: CERCONE, Judge:

text:
    664 A.2d 1381
    COMMONWEALTH of Pennsylvania v. Alfonzo COLEMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 17, 1995.
    Filed Sept. 18, 1995.

      David N. Wecht, Pittsburgh, for appellant.
    Scott A. Bradley, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before KELLY, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered following a jury trial. We affirm.

The Honorable Jeffrey A. Manning has explained the events underlying this appeal in the following manner:

During the early morning hours of December 2, 1992, the victim, Marvin Barksdale, was on his way home when the defendant approached and asked him whether he had the defendant’s money. The victim replied that he did not have the money, whereupon the defendant reached into his coat, pulled out a sawed-off shotgun, shot the victim in his left thigh and took money from him. (N.T. 3/23-24/94 at 18-20; 44-46.)

Trial Court Opinion dated December 12, 1994, filed April 27, 1995, at 1. In March of 1994, a jury found appellant guilty of one count each of robbery and aggravated assault. The trial court imposed an aggregate sentence of fifteen (15) to thirty (30) years imprisonment. Court appointed counsel was permitted to withdraw from the case and appellant filed a pro se notice of appeal. The trial judge subsequently appointed new counsel to represent appellant.

The instant timely appeal presents the following issues for our consideration:

A. THE TRIAL COURT ERRED IN BARRING THE DEFENDANT FROM IMPEACHING BARKSDALE ON THE BASIS OF BARKSDALE’S CRIMINAL RECORD.
1. The Trial Court should have balanced the probative value of the impeachment against the danger of prejudice rather than barring the questions on the assumption that the conviction was not a crimen falsi
2. The crimen falsi requirement should apply only to defendant witnesses.
3. Possession of drugs with intent to deliver should be considered a crime of dishonesty or false statement.
B. COLEMAN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND SUFFERED DEPRIVATION OF CONSTITUTIONAL RIGHTS WHEN HIS TRIAL ATTORNEY FAILED TO OBJECT TO THE SHOWING OF THE PLAINTIFF’S [sic] SCAR TO THE JURY, PRESENTED NO OPENING STATEMENT, AND INTRODUCED NO EVIDENCE OR WITNESS TESTIMONY.

We shall consider these claims in order.

Appellant first contends that the trial court erred in barring him from impeaching the complaining witness on the basis of the witness’ criminal record. In Pennsylvania, “evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date.” Commonwealth v. Randall, 515 Pa. 410, 415, 528 A.2d 1326, 1329 (1987). However, our law prohibits impeaching a witness with prior arrests and prior convictions for crimes not involving crimen falsi. Commonwealth v. Stokes, 532 Pa. 242, 256, 615 A.2d 704, 711 (1992) (citing Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154 (1982), cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982) and Commonwealth v. Randall, supra ). Unfortunately, “it is not always apparent which crimes fall within the ambit of crimen falsi.” Commonwealth v. Harris, 442 Pa.Super. 116, 119, 658 A.2d 811, 812 (1995).

As Justice Zappala explained in a concurring opinion in Commonwealth v. Williams, 524 Pa. 404, 411-12, 573 A.2d 536, 540 (1990), there is an inherent ambiguity involved when working with the concept of crimen falsi in the absence of a meaningful guideline clarifying the crimes which fall within this category. In calling for the creation of a bright line definition for crimen falsi, Justice Zappala stated the following:

[D]etermining what crimes involve crimen falsi based solely upon the statutory title of the offense or the Clerk of Courts’ verification that a defendant was convicted of a crime does not place that event in proper perspective in terms of meaningfulness and as an aid to the trier of fact.

Id. Mindful of Justice Zappala’s caveat, this court has held that when deciding whether a particular offense is crimen falsi, one must address both the elemental aspects of that offense and the conduct of the defendant which forms the basis of the anticipated impeachment. Commonwealth v. Harris, 442 Pa.Super. at-, 658 A.2d at 813.

In this case, the complaining witness was convicted of possession with intent to deliver. Our research has failed to uncover Pennsylvania precedent which addresses whether this offense is crimen falsi. However, in Commonwealth v. Correa, 423 Pa.Super. 57, 620 A.2d 497, appeal denied, 536 Pa. 638, 639 A.2d 24 (1993), this court agreed with the defense contention that simple possession of a controlled substance was not evidence of crimen falsi which could be employed for impeachment purposes. See also Commonwealth v. Candia, 286 Pa.Super. 282, 428 A.2d 993 (1981) (possession of marijuana is not crimen falsi (per Brosky, J. with one judge concurring and one judge dissenting)). Our Legislature has defined “possession of a controlled substance” in the following manner:

Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.

35 P.S. § 780-113(a)(16). By way of comparison, the crime of “possession with intent to deliver a controlled substance” comprises the following forbidden conduct:

Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.

Id. at § 780-113(a)(30). We find no meaningful distinction between these two definitions which implicates dishonesty or false statement as an element for the crime of possession with intent to deliver. Thus, based solely on the statutory definitions, we cannot conclude that possession with intent to deliver is crimen falsi.

We do not say that this offense could never be crimen falsi. However, in the instant case, appellant has not provided any information concerning the conduct which led to the witness’ conviction. This lack of factual detail prevents us from fully applying the Harris test. Both the elements of the crime and the accused’s conduct must be scrutinized in concert to assess whether an offense should be deemed crimen falsi. Commonwealth v. Harris, 442 Pa.Super. at 118, 658 A.2d 811. There is simply no basis in the record before us for concluding that in this case, the complaining witness’ prior criminal conviction was premised on conduct displaying dishonesty or false statement which would indicate the commission of crimen falsi.

We are cognizant of appellant’s contention that the trial court should have balanced the probative value of the proposed impeachment evidence against the danger of prejudice to appellant’s case through the exclusion of such evidence. However, we find this argument irrelevant to the instant case. Our law is settled that the discretionary-balancing test does not apply when the Commonwealth seeks to use a prior conviction to impeach the testimony of a defense witness other than the defendant himself. Commonwealth v. Gordon, 355 Pa.Super. 25, 27, 512 A.2d 1191, 1192 (1986). When the witness is not the defendant, the only relevant inquiry is whether the convictions were for crimes involving dishonesty or false statement. Id. We see no compelling reason to apply a different standard when it is the defense rather than the Commonwealth who seeks to impeach a witness with a prior conviction.

Appellant next contends that prior counsel was ineffective on the following bases: (1) failing to object when the Commonwealth caused the victim to display his scar to the jury; (2) failing to give an opening statement; and (3) failing to introduce evidence and/or present witnesses to testify on appellant’s behalf. With respect to this type of claim, our Supreme Court has explained the following:

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceeding.

Commonwealth v. Jermyn, 533 Pa. 194, 198, 620 A.2d 1128, 1130 (1993), cert. denied, — U.S. -, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994) (quoting Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988)). An allegation of ineffectiveness of counsel cannot be established without a finding of prejudice. Commonwealth v. March, 528 Pa. 412, 415, 598 A.2d 961, 963 (1991). Prejudice in this context is determined by an evaluation of whether “but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.” Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987).

Appellant was accused of committing aggravated assault. Under the relevant subsections of the aggravated assault statute, the Commonwealth was required to demonstrate either that: (1) appellant attempted to cause serious bodily injury to another, or caused such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (2) that he attempted to cause or intentionally or knowingly caused bodily injury to another with a deadly weapon. See 18 Pa.C.S.A. § 2702(a)(1) and (4). Evidence which is material and probative as to whether a particular assault caused “serious bodily injury” or “serious permanent disfigurement” is admissible to demonstrate the elements of aggravated assault. See, e.g., Commonwealth v. Culmer, 413 Pa.Super. 203, 216 n. 2, 604 A.2d 1090, 1096 n. 2 (1992). See also Commonwealth v. Glover, 265 Pa.Super. 19, 25-26, 401 A.2d 779, 782 (1979) (it is not error to permit an assault victim to display fully healed scars which are relevant to the criminal acts charged; such scars are not likely to provoke the passions or prejudices of a jury). In this case, Judge Manning found that the victim’s display of his scar to the jury was an appropriate demonstration of the character and extent of the injuries suffered by the victim. Trial court opinion at 4. Judge Manning explicitly held that the scar was not displayed for the purpose of arousing the sympathy of the jury. Id.

Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Silo, 509 Pa. 406, 410, 502 A.2d 173, 175 (1985). Because the evidence in question was admissible, prior counsel cannot be faulted for failing to object when the Commonwealth introduced it. Thus, we conclude that this issue has no arguable basis.

Appellant also contends that prior counsel was ineffective for failing to give an opening statement. This argument is couched in the form of a bald and conclusory statement which does not even suggest what trial counsel could or should have said during opening which would have furthered his client’s interests. The burden of establishing ineffective assistance of counsel rests upon the appellant because counsel’s stewardship is presumed to be effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). Appellant’s obligation is to demonstrate both that “the omission or commission by counsel was arguably ineffective and the likelihood that he was prejudiced as a result.” Commonwealth v. Pierce, 515 Pa. 153,161, 527 A.2d 973, 976 (1987) (emphasis in original). In making assertions of ineffectiveness, an appellant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective because the appellate courts will not consider such claims in a vacuum. Commonwealth v. Durst, 522 Pa. 2, 4, 559 A.2d 504, 505 (1989); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).

Next, appellant argues that trial counsel was ineffective for failing to “introduce any evidence or present any witness [sic] testimony on his client’s behalf.” Appellant’s brief at 12. However, appellant’s brief does not disclose the identities of the witnesses trial counsel should have called or the nature the evidence which should have been introduced. The Commonwealth is correct in characterizing this argument as a classic “claim in a vacuum.”

This situation is not redeemed by appellant’s assertion in his reply brief that he allegedly gave a list of alibi witnesses to trial counsel, who then purportedly neglected to act on this information. To obtain relief on a missing witness claim, an appellant is required to establish that: (1) the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or counsel should otherwise have known of him; (4) the witness was prepared to cooperate and testify for appellant at trial; and (5) the absence of the testimony prejudiced appellant so as to deny him a fair trial. Commonwealth v. Petras, 368 Pa.Super. at 377, 534 A.2d at 485 (cited with approval by Commonwealth v. Stanley, 534 Pa. 297, 632 A.2d 871 (1993)). Appellant has arguably satisfied the third aspect of this test, but he has not even attempted to address the remaining four prongs. Without a factual predicate upon which counsel’s assistance may be evaluated, a claim is too general to provide grounds for relief. Commonwealth v. Kauffman, 405 Pa.Super. 229, 234, 592 A.2d 91, 93, appeal denied, 529 Pa. 617, 600 A.2d 534 (1991). Thus, appellant has failed to sustain his burden of demonstrating ineffective representation by trial counsel. See Commonwealth v. McNeil and Commonwealth v. Durst, supra.

Finally, we note the stark assertion in appellant’s reply brief that if appellant were granted an evidentiary hearing, he would “show that trial counsel threatened to withdraw from the case if [appellant] insisted upon testifying on his own behalf.” Reply brief at 5. This claim was never presented to the trial court in any form at any time. Specifically, present counsel neglected to raise it when, acting on appellant’s behalf, he filed his concise statement of matters complained of on appeal pursuant to Rule of Appellate Procedure 1925. Ineffectiveness of trial counsel must be raised at the first opportunity at which counsel whose ineffectiveness is being challenged no longer represents the defendant. Commonwealth v. Chmiel, 536 Pa. 244, 251, 639 A.2d 9, 12 (1994). Appellant’s non-specific averment in the concise statement that he “was provided ineffective assistance of counsel” is insufficient to preserve this issue on appeal. Furthermore, this undeveloped argument is a “claim in a vacuum” because appellant has failed to supply this court with even minimal details such as the date, occasion and context in which trial counsel’s alleged threats purportedly occurred. We will not consider ineffectiveness claims which lack proper factual averments sufficient to determine whether the issue has even arguable merit. See Commonwealth v. Durst, Commonwealth v. Pettus and Commonwealth v. Kauffman, supra.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3701.

      . Id. § 2702.

      . Stokes was decided by a six member Court. Two Justices concurred with the author, while the Chief Justice and two Justices concurred in the result.

      . Nevertheless, the Correa panel ruled that the challenged evidence was admissible under the particular circumstances of that case. Even though the evidence concerning the witness’ prior conviction could not be used for impeachment, it was properly admitted to demonstrate the witness’ bias against police officers and to establish that a bench warrant had been issued for the witness' arrest.


author: FORD ELLIOTT, Judge.

text:
    664 A.2d 1387
    Lea May RAY and Chester Ray, Appellants, v. ARMSTRONG DEVELOPERS, t/d/b/a The Shops at Station Square.
    Superior Court of Pennsylvania.
    Argued June 13, 1995.
    Filed Sept. 27, 1995.

      Paul J. McArdle, Pittsburgh, for appellants.
    Louis C. Long, Pittsburgh, for appellee.
    Before CIRILLO, FORD ELLIOTT and HESTER, JJ.
   FORD ELLIOTT, Judge.

Appellants come before us challenging an order entered below purporting to grant a nonsuit in favor of appellee. Said order was entered in response to appellee’s motion for summary judgment. Regardless of whether we characterize the resolution below as non-suit or summary judgment, our review reveals error compelling us to vacate the order below and remand for trial.

The underlying action below was one for personal injuries which resulted when appellant Lea May Ray inadvertently walked headfirst into a clear glass wall on appellee’s premises. Appellant Lea May Ray allegedly suffered a fractured skull as well as other injuries resulting from the impact. Nevertheless, we will not review or comment upon the merits of appellants’ case or the validity of nonsuit or summary judgment as they pertain to the merits. Rather, the error we perceive below is procedural in nature. Therefore, we must set out the procedural milieu of the appeal before us instead of the factual background.

The case below commenced November 30, 1992, with the filing of a complaint. Thereafter, discovery proceeded throughout the remainder of 1992 and 1993 and included, among other matters, interrogatories, requests for admissions, and various depositions. We note in particular that the deposition of one Robert B. Telfer, M.D., was taken December 13, 1993. Dr. Telfer was appellants’ medical expert on causation.

Trial on this matter was not scheduled for almost one year following the taking of the Telfer deposition and almost two years following the initial filing of the complaint. On the morning that trial was set to begin, November 3, 1994, appellee served appellants with a motion in limine to exclude the deposition testimony of Dr. Telfer on the basis that his opinion testimony was not rendered with a reasonable degree of medical certainty. Anticipating a favorable ruling from the trial court, appellee had also prepared a motion for summary judgment predicated on appellant’s inability to prove legal causation as to the medical injuries. Appellants were also served with the motion for summary judgment on the morning of trial.

After a jury had been selected, the motion in limine was presented to the court, which entertained a discussion on the matter and then held a lunch recess during which time the court read the deposition of Dr. Telfer. After recess the court granted appellee’s motion in limine and then entertained appellee’s motion for summary judgment. There was some discussion as to the form of the motion. Appellants argued that a motion for summary judgment was untimely. Appellants also argued that a motion for compulsory nonsuit or directed verdict would also be premature because counsel had not rested their case. Appellee, on the other hand, merely categorized its motion as “judgment as a matter of law.” (Notes of testimony, 11/3/94 at 28.) The court was unsure what to call the motion, but did specifically state that it was not a motion for summary judgment. (Notes of testimony, 11/3/94 at 29.) The court’s order characterized the judgment rendered as one “as a matter of law in nature of a non-suit.”

Appellants immediately took an appeal to this court without first moving to remove the nonsuit or without filing any other posi>trial motion. Appellee moved to quash the appeal because appellants failed to first move to remove the nonsuit before the trial court as is ordinarily required before an appeal may be taken. See Crawford v. Commonwealth, 125 Pa.Cmwlth. 85, 556 A.2d 547 (1989). Appellants’ brief in response to the motion to quash argued that the judgment below must be deemed one of summary judgment and that an order granting same is directly appealable. See Sterling v. Fineman, 428 Pa.Super. 233, 630 A.2d 1224 (1993), appeal denied, 538 Pa. 674, 649 A.2d 675 (1994). Appellants also argued that the matter was controlled by Gallagher v. Harleysville Mutual Insurance Company, 421 Pa.Super. 192, 617 A.2d 790 (1992), appeal denied sub nom. Harleysville Mutual Insurance Company v. Gallagher, 535 Pa. 620, 629 A.2d 1381 (1993). In Gallagher, we held that where a trial court purports to enter a nonsuit prior to trial, the action would be deemed either a summary judgment or a judgment on the pleadings and that the failure to file post-trial motions would not waive appellant’s claims. Based on the above, this court denied the motion.

We turn now to our resolution of what we perceive as procedural error below. It appears certain, both from case and statutory law, that a trial court cannot enter nonsuit prior to plaintiffs presentation of his or her case (at least on liability). Statutorily, the matter is controlled by Pa.R.Civ.P. 230.1, 42 Pa.C.S.A. which reads:

RULE 230.1 COMPULSORY NONSUIT AT TRIAL
In a case involving only one defendant, at the close of plaintiffs case on liability and before any evidence on behalf of the defendant has been introduced, the court, on the oral motion of a party, may enter a nonsuit if the plaintiff has failed to establish a right to relief. If the motion is not granted, the trial shall proceed. If the motion is granted, the plaintiff may file a written motion for the removal of the nonsuit.

Rule 230.1 clearly states that the court may enter a nonsuit at the dose of plaintiffs case on liability.

This interpretation is borne out by Gallagher, supra, which states that nonsuit is entered under Rule 230.1 only after a plaintiffs evidence has been presented to the jury. An older precedent handed down by our supreme court also supports this position. In Ruhe v. Kroger Company, 425 Pa. 213, 228 A.2d 750 (1967), the court stated, ‘We know of no proceeding which permits the court to enter a compulsory nonsuit without testimony having been taken in court.” Id. at 215, 228 A.2d at 751. While the holding in Ruhe was predicated upon the predecessor of Rule 230.1, 12 P.S. § 645, the Explanatory Comment to Rule 230.1 states that Rule 230.1 is adapted from 12 P.S. § 645 and for the most part continues prior practice. The Explanatory Comment further states, “The motion for nonsuit may not be made prior to the conclusion of plaintiffs evidence as to liability.” It seems manifest that the action of the trial court cannot be characterized as a nonsuit. What the court effectively did was to grant either appellee’s motion for summary judgment or a judgment on the pleadings. In either event, there was error.

Our resolution of this appeal is compelled by two recent cases. In Cagnoli v. Bonnell, 531 Pa. 199, 611 A.2d 1194 (1992), the appellant was confronted with a motion in limine regarding her expert witness and a motion for admission and/or judgment on the pleadings on the morning trial was set to begin. After arguments on the motions, the trial court granted both motions and directed that judgment be entered in favor of the appellee. An empaneled jury was then dismissed. Writing to reverse, Justice Zappala first emphasized the language of Pa.R.Civ.P. 1034, 42 Pa.C.S.A., which governs judgments on the pleadings: “a. After the pleadings are closed, but within such time as not to delay trial, any party may move for judgment on the pleadings.” Id. at 202, 611 A.2d at 1196 (emphasis in original). Justice Zappala went on to state,

Clearly, the drafters of Rule 1034 did not envision that a Motion for Judgment on the Pleadings would be submitted, let alone considered, on the very morning that trial is to begin and a jury has been empaneled. The party opposing the motion must have a full and fair opportunity to argue against the motion. The opposing party here, the appellant, was not afforded this opportunity.

Id. at 203, 611 A.2d at 1196. The court also noted that the last minute motion for judgment on the pleadings failed to comport to local rules of court. We note in passing that the procedure followed by appellee also fails to comport to Allegheny County Local Rule 249 *(3).

More recently, the holding in Cagnoli has been extended to similarly apply to summary judgments. In Moscatiello Construction Company v. City of Pittsburgh, 155 Pa.Cmwlth. 361, 625 A.2d 155 (1993), the Commonwealth Court noted that the language of Pa.R.Civ.P. 1035, 42 Pa.C.S.A., which governs summary judgments, is virtually identical to that of Rule 1034; Rule 1035 also begins, “a. After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment ...” (emphasis added). In holding that the appellant in Moscatiello was denied procedural due process, Commonwealth Court stated:

Further, unlike a party opposing a motion for judgment on the pleadings, a party opposing a motion for summary judgment has the right to file and the trial court should consider opposing affidavits as well as pleadings, answers to interrogatories, depositions and admissions. In the instant case as in many others, summary judgment issues are far more complex than those arising on a motion for judgment on the pleadings. Therefore, we find that a party opposing a motion for summary judgment must be granted at least the same reasonable response time granted to a party opposing a motion for judgment on the pleadings.
With respect to notice and an opportunity to be heard, we find that Moscatiello was in a nearly identical position to the plaintiff in Cagnoli. In each case, the court considered a motion on the same day as filed, shortly before trial was to commence.

Moscatiello at 367, 625 A.2d at 158.

Instantly, the same fact situation has occurred as did in Moscatiello. Appellants were confronted with an unexpected, eleventh-hour motion for summary judgment and were given almost no opportunity to prepare a response. Where the same facts occur, so also must the same result obtain.

Accordingly, the order dated November 3, 1994, granting summary judgment, is hereby reversed, and this matter is remanded for trial. Jurisdiction relinquished.

      . Although appellants recite neither of these cases, they clearly raise the argument presented therein, that it was improper to grant summary judgment at the last minute.


author: CAVANAUGH, Judge: OLSZEWSKI, Judge,

text:
    665 A.2d 1
    Joann FRAZIER, Appellee v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 22, 1995.
    Filed Sept. 19, 1995.
    Sue A. Eckell, Philadelphia, for appellant.
    Fred J. Ambrose, Jr., Bala Cynwyd, for appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   CAVANAUGH, Judge:

This appeal is from the court’s order allowing appellee, an uninsured pedestrian, to recover uninsured motorist benefits for injuries she sustained as the result of a hit and run accident. Appellee was struck by an insured vehicle which had been stolen. The parties stipulated that the vehicle was being driven without the insured’s consent. For the reasons that follow we reverse.

Appellee was struck by a vehicle bearing license tag number WRK-670 at the intersection of 19th Street and Lehigh Avenue on the afternoon of October 21, 1991. Appellee testified that the vehicle was a grey Chevrolet Corvette, that she was able to see and memorize the license tag number as the car sped away, that the license tag was blue and yellow in color, and that a Fraternal Order of Police (FOP) decal was on the back of the vehicle.

A cherry-red Chevrolet Corvette, bearing a blue and yellow Pennsylvania license tag numbered WRK-670 was stolen from the parking lot of the Melrose Diner at approximately 10:30 AM that same day. The vehicle, which had an FOP decal on the license tag was owned by Raymond Lare and was insured under a policy issued by appellant, State Farm.

Mr. Lare’s policy included uninsured motorist benefits. Appellant sought to recover those benefits under the policy. State Farm denied coverage on the grounds that 1) there was no conclusive proof that the insured vehicle was the one which struck appellee, and 2) that, in any event, appellee was not entitled to uninsured benefits because she did not meet the definitions of a person eligible to receive those benefits under the language of the policy. An arbitration hearing held on May 10, 1993 resulted in a finding in favor of appellee in the amount of $6500 on her claim for uninsured motorist benefits. State Farm appealed and a de novo non-jury trial was convened on January 11,1994.

On March 15, 1994, the court entered its order granting appellee a $6000 recovery in uninsured motorist benefits. In it’s accompanying opinion, the court stated that although appellee was not entitled to benefits under the clear language of the policy, the court nonetheless felt mandated to award her those benefits based upon this Court’s holding in Ector v. Motorists Insurance Companies, 391 Pa.Super. 458, 571 A.2d 457 (1990), allocatur denied, 525 Pa. 646, 581 A.2d 572 (1990). This appeal follows and requires us to revisit our holding in Ector, supra. Because we find that the decision in Ector has been limited by a subsequent en banc decision by this Court, we reverse.

In Ector, an uninsured pedestrian was struck and injured by an insured vehicle which had been stolen by an uninsured driver. The insurer denied the pedestrian’s claim for uninsured motorist benefits. On appeal, the pedestrian argued that this Court’s decision in Prudential Property and Cas. Ins. Co. v. Falligan, 335 Pa.Super. 195, 484 A.2d 88 (1984), was controlling. In Falligan, we upheld the recovery of uninsured motorist benefits by an uninsured pedestrian who was injured by an insured auto driven by the insured’s son without permission.

We initially note that Falligan was decided at a time when automobile insurance policies issued in this Commonwealth were governed by the No-Fault Act, a statutory scheme which has since been repealed. Contracts for automobile insurance are now governed by the Motor Vehicle Financial Responsibility Law (MVFRL). In Falligan, the court relied on the No-Fault Act’s articulated purpose of providing “maximum feasible restoration” to require insurers to provide uninsured motorist benefits to uninsured injured persons.

On appeal, the Ector court agreed that Falligan was controlling. A three-judge panel of this Court noted that the MVFRL does not contain any policy language analogous to the “maximum feasible restoration” language contained in the No-Fault Act. Nonetheless, the panel concluded that because the MVFRL is a financial responsibility act remedial in nature, it must be liberally construed. Therefore, the panel held that the MVFRL was “sufficiently analogous to require this court to follow our decision in Falligan.” Ector, 391 Pa.Super. at 466, 571 A.2d at 461.

However, since Ector was decided, an en banc panel of this Court, in Jeffrey v. Erie Ins. Exchange, 423 Pa.Super. 483, 621 A.2d 635 (1993), allocatur denied, 537 Pa. 651, 644 A.2d 736 (1994), limited Ector’s scope, holding that the principle of “maximum feasible restoration” no longer exists in Pennsylvania law.

We note that this court’s decision in Ector, [citation omitted], recognizes that the “maximum feasible restoration” principle was confined to the No-Fault Act and [has] not been carried over into the MVFRL, which contains no Legislative Finding section.
We disagree, however, with any implication in Ector that our responsibility to “liberally construe” the ... MVFRL is as broad a judicial mandate to effectuate coverage as was the “maximum feasible restoration” principle in the now defunct No-Fault Act.

Jeffrey, at 495 n. 5, 621 A.2d at 641 n. 5.

Moreover, we have recently noted that one of the principles behind the enactment of the MVFRL was the desire to bring down the high cost of automobile insurance premiums and that the MVFRL does not, therefore, prohibit “non-permissive use” exclusions in automobile insurance policies issued in this Commonwealth. Nationwide Mut. Ins. Co. v. Cummings, 438 Pa.Super. 586, 652 A.2d 1338, 1343 (1994). In Cummings, appellant maintained that as an innocent uninsured victim injured while a passenger in a stolen vehicle, he was entitled to uninsured motorist benefits under the reasoning provided by Ector. We disagreed, following the reasoning set forth in Jeffrey, supra. We held:

[Ajppellant’s reliance on Ector v. Motorists Ins. Co., supra, is misplaced as our decision in that case has been limited by a subsequent decision of an en banc panel of this Court, and is therefore not dispositive of the instant appeal.

Cummings, at 597-598, 652 A.2d at 1344.

In the case sub judice, it is clear that appellee did not fit the criteria required to be eligible for recovery of uninsured motorist benefits under the language of the policy. She cannot overcome that deficiency by reliance on the theory of “maximum feasible restoration” as that principle no longer exists in Pennsylvania jurisprudence. Therefore, the order granting her recovery of uninsured motorist benefits in reliance on the transcendent hegemony of that doctrine was error. We reverse and vacate the judgment.

Order reversed. Judgment vacated. Jurisdiction relinquished.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

Since we believe that the trial court properly relied on Ector v. Motorists Insurance Companies, 391 Pa.Super. 458, 571 A.2d 457, allocatur denied, 525 Pa. 646, 581 A.2d 572 (1990), we must respectfully dissent.

In Ector, this Court allowed an uninsured pedestrian, who was struck by a stolen car, to recover uninsured motorist benefits after finding that the policy behind the MVFRL was analogous to the “maximum feasible restoration” policy of the No-Fault Act. Id. at 465, 571 A.2d at 461. In Jeffrey v. Erie Insurance Exchange, 423 Pa.Super. 483, 621 A.2d 635 (1993), allocatur denied, 537 Pa. 651, 644 A.2d 736 (1994), an en banc panel rejected this underlying policy rationale and therefore limited Ector. The Jeffrey panel wrote:

We disagree, however, with any implication in Ector that our responsibility to “liberally construe” the UMCA and the MVFRL is as broad a judicial mandate to effectuate coverage as was the “maximum feasible restoration” principle in the now defunct No-Fault Act.

Id. at 495 n. 5, 621 A.2d at 641 n. 5. Similarly, in Nationwide Mutual Insurance Company v. Cummings, 438 Pa.Super. 586, 652 A.2d 1338 (1994), this Court distinguished Ector and sought to further limit its holding. Despite these limitations, however, no court has expressly overruled Ector.

Since Ector has not been expressly overruled, we agree with the trial court that it controls and allows for recovery in this case. Like the plaintiff in Ector, the plaintiff here was an uninsured pedestrian struck by a stolen car. The majority tries to avoid this result by focusing on the fact that the maximum feasible restoration theory no longer exists. In Ector, however, the court did not rely on the theory of maximum feasible restoration. Instead, it relied on a liberal construction theory which the court found closely analogous to maximum feasible restoration. While this liberal construction theory has been severely limited by later cases, it is still a viable theory of recovery under the factual scenario presented in Ector.

We recognize that the Ector decision is often criticized. In this case, the trial court expressed its disagreement with the rationale of Ector and invited the appellate courts to reexamine the decision. The trial judge recognized, however, that Ector was still binding precedent which he was not free to ignore. Like the trial court, we are constrained by Ector to allow recovery in this case, and therefore we would affirm the order below.

      . The now-defunct No-Fault Act provided in pertinent part:
      (a) Findings. — The General Assembly hereby finds and declares that:
      (3) the maximum feasible restoration of all individuals injured and compensation of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways ... is essential to the humane and puiposeful functioning of commerce ...
      40P.S. § 1009.102(a)(3).

      . The applicable section of Raymond Lare’s State Farm insurance policy which addresses uninsured and underinsured motorist coverage provides as follows:
      Who Is An Insured
      Insured — means the person or persons covered by uninsured motor vehicle and underinsured motor vehicle coverage.
      This is:
      1. The first person named in the declarations;
      2. His or her spouse;
      3. Their relatives; and
      4. Any other person while occupying;
      a. ' Your car, a temporary substitute car, a newly acquired car, or a trailer attached to such car. Such vehicle has to be used within the scope of the consent of you or your spouse; or
      b. a car not owned by you, your spouse or any relative, or a trailer attached to such car. It has to be driven by the first person named in the declarations or that person’s spouse and within the scope of the owner’s consent.
      Such other person occupying a vehicle used to carry persons for a charge is not an insured.
      5. any person entitled to recover damages because of bodily injury to an insured under 1 through 4 above.