author: SUGERMAN, Judge:

text:
    440 A.2d 1228
    COMMONWEALTH of Pennsylvania, v. Ezekiel SIMMONS, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1979.
    Filed Jan. 29, 1982.

      William J. Mazzola, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       Pres. Judge John Q. Stranahan, of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.
      Judge Leonard Sugerman, of the Court of Common Pleas of Chester County, Pennsylvania, is sitting by designation.

   SUGERMAN, Judge:

On November 10, 1977, Appellant was found guilty at a bench trial before the Honorable William M. MARUTANI of the Court of Common Pleas of Philadelphia County of rape , statutory rape, corruption of a minor and criminal conspiracy . Post trial motions were filed, argued and denied, and Appellant was sentenced to a term of lA to 15 years upon the rape conviction, and to terms of 2 to 5 years upon the convictions for corruption of a minor and criminal conspiracy. The latter two sentences were to be served concurrently with each other but consecutively to the sentence imposed upon the rape conviction.

On appeal, as below, the single contention advanced by Appellant is that the admission of his statement at trial was error, as the statement was the tainted fruit of an illegal arrest, made without probable cause.

Appellant was arrested in Philadelphia on May 31,1977, at 2:15 o’clock P.M. and within minutes after his arrival at the Police Administration Building (“P.A.B.”), gave an inculpatory statement to the arresting officer, ultimately reduced to writing, in which he admitted twice raping the victim. Pre-trial, Appellant filed a motion to suppress the statement based upon the ground, inter alia, that the statement was the product of an arrest made without sufficient probable cause and thus illegal.

A suppression hearing upon Appellant’s motion was conducted by the Honorable G. Fred DiBONA, and at the conclusion of the hearing, Judge DiBONA denied the motion to suppress the statement, concluding that the arrest of Appellant was based upon probable cause. The statement was ultimately introduced in evidence at Appellant’s trial.

Before we address the issue presented by Appellant, however, we must dispose of several threshold questions presented by the record before us, including our scope of review.

Pa.R.Crim.P. 323(i), in effect currently and at the date of the instant suppression hearing, requires the suppression judge to “enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights ...” Id. The purpose of Rule 323(i) is to insure a meaningful review of the lower court’s decision. Commonwealth v. Harris, 275 Pa.Super. 18, 24, 418 A.2d 589, 592 (1980).

At bar, the suppression judge failed to make formal findings of fact on the record. During the recorded argument on Appellant’s motion, however, the suppression judge made a number of statements that are obviously his findings of fact. In those statements, the judge makes clear his findings with respect to the credibility of each witness as well as the facts as he determined them. He then concluded:

“THE COURT:
All right. Motion to suppress is denied. The arrest was made with probable cause which I have outlined, with a warrant. The warrant was not defective in the opinion of this court. The interrogation which ensued was completely in accord with the prescribed Constitutional guarantees. Therefore, the motion to suppress the statement is respectfully denied.”

We have also been provided with a comprehensive and scholarly opinion by Judge MARUTANI for the court en banc in which the findings of the suppression judge are again set out and analyzed in depth. ’

Thus, we are more than satisfied that these findings permit a meaningful review of the decision of the suppression judge. Compare Commonwealth v. Jackson, 464 Pa. 292, 346 A.2d 746 (1975) with Commonwealth v. Harris, supra, and Commonwealth v. Walls, 255 Pa.Super. 1, 386 A.2d 105 (1978) (SPAETH, J., concurring and dissenting).

It must also be noted at the outset that the court en banc specifically found, and the Commonwealth implicitly concedes in its Brief filed here that Appellant’s statement was the product of his arrest, and if resulting from an illegal arrest, is impermissibly tainted and should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Bogan, 482 Pa. 151, 393 A.2d 424 (1978); Commonwealth v. Yocham, 473 Pa. 445, 375 A.2d 325 (1977) (collects cases); Commonwealth v. Whitaker, 461 Pa. 407, 336 A.2d 603 (1975); Commonwealth v. Patterson, 266 Pa.Super. 167, 403 A.2d 596 (1979).

We must therefore determine whether Appellant’s arrest was based upon probable cause, within the perimeter of our scope of review. Bearing in mind that the suppression judge concluded as the result of his findings that Appellant’s arrest was based upon probable cause, our function on review is to determine whether the record supports those factual findings and the legitimacy of the inferences and legal conclusions drawn from such findings. In making this determination, we consider only the evidence of the Commonwealth’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Watson, 487 Pa. 169, 171, 409 A.2d 19, 20 (1979); Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976); Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d 4 (1981); Commonwealth v. Hunt, 280 Pa.Super. 205, 421 A.2d 684 (1980).

Viewed in that light, the record of the suppression hearing reveals that on May 27,1977, Detective Martin Devlin of the Philadelphia Police Department was assigned to investigate the gang rape of a 12 year old girl, allegedly having occurred during the afternoon hours of the same day.

At 9:00 o’clock that evening, Devlin interviewed the victim in the hospital and again later that night in the P.A.B. During the course of these interviews, the victim told Devlin that one of her attackers was named “Zeke”, (Appellant’s first name is Ezekiel), and that he was taller than the others, dark-skinned, well-built with short hair, and 19 or 20 years old. Shortly after the second interview with the victim, Devlin interviewed one Marvin Steward, another of the victim’s attackers then in custody and ultimately tried with Appellant for the rape as a co-defendant. During the latter interview, Steward told Devlin that both he and “Zeke” were two of the persons who raped the victim. Later, Devlin interviewed a second participant, one Andre “Almond” Harris, also then in police custody. Harris told Devlin as well that he and “Zeke” raped the victim, and that “Zeke” lived at 50th and Reno Streets in the City of Philadelphia. Devlin also interviewed a girl named Mimi who was with the victim shortly before the attack. “Mimi” also told Devlin that “Zeke” lived at 50th and Reno Streets.

Aware that a teenage gang known as the “Hoopes Street Gang” operated near 50th and Reno Streets, and also aware that the victim’s four attackers ranged in age from 17 to 19 years, Devlin next contacted his colleagues in the Juvenile Aid Division Of the Philadelphia Police Department to determine if they were aware of a person named “Zeke” who lived near Hoopes Street, perhaps at 50th Street, and a member of the Hoopes Street gang. Juvenile Aid officers, in response and upon hearing the name “Zeke”, immediately told Devlin that an Ezekiel Simmons lived at 50th and Reno Streets.

Devlin also went to 50th and Reno Streets and asked persons in the neighborhood where “Zeke” lived. He was told by neighbors that “Zeke” lived at 5035 Reno Street, a few doors from the intersection of 50th and Reno Streets. The next morning, Devlin went to 5035 Reno Street and spoke with Ezekiel Simmon’s mother and sister. Devlin asked Mrs. Simmons to describe her son and the description matched that given by the victim.

Based upon this information, Devlin obtained the foregoing warrant for Appellant’s arrest on May 31, 1977, arrested Appellant and charged him with the instant crimes. In the face of this record, then, we must determine whether Appellant was arrested upon probable cause.

I

Affidavit for Arrest Warrant

Appellant first attacks the “affidavit” section of the complaint underlying the arrest warrant, contending that it contains nothing more than conclusions and fails to set forth any asserted facts from which a magistrate could find probable cause.

Detective Devlin was the complainant, and the “affidavit” in the complaint sets forth in its entirety the following:

“On or about Friday 5-27-77, in the County of Philadelphia, the accused committed the following acts: the def. did along with his associates rape [victim’s name and address] while inside 871 N. 49th St. CHARGES: Rape 3121F1, Agg. Asslt. 2702 MI, Stat. Rape 3122 F2, Corrup. Minor 3125 M2, Terr, threats 2706 MI, Consp. 903 all of which were against the peace and dignity of the Commonwealth of Pennsylvania and contrary to the pertinent Acts of Assembly.”

This statement is obviously conclusory and devoid of any factual information. On May 31, 1977, however, the date the warrant was issued, the issuance of warrants of arrest was governed by Pa.R.Crim.P. 132-134, and those rules did not require that all information used to establish probable cause be set forth in a written affidavit. Thus it was that an affiant’s sworn oral statements or testimony before a magistrate could supplement his written affidavit to form the basis for the issuance of an arrest warrant. Common wealth v. Geary, 488 Pa. 174, 411 A.2d 1195 (1980); Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973). Accordingly, the warrant was at least superficially in compliance with the then applicable Rules.

At the suppression hearing, however, the Commonwealth made no effort to elicit from Detective Devlin the information he may have orally imparted to the magistrate before obtaining the warrant. The only testimony on the entire subject in the record is the following:

“Q. [BY THE ASSISTANT DISTRICT ATTORNEY] . . . When you returned on the 31st, were you armed with any kind of a warrant?
A. [BY DETECTIVE DEVLIN]
Yes, sir, I was.
Q. What kind of warrant was it, sir?
A. I had a warrant for arrest, which was obtained on 5/31/77 by [sic] Judge Poserina.
Q. Was it so signed, sir?
A. Yes, it was.”
N.T.S.H. 69-70

Pa.R.Crim.P. 323(h), in effect at the date of the proceedings below, and yet in effect, places the burden upon the Commonwealth to establish that any evidence sought to be used at trial and which is the subject of a defendant’s motion to suppress was not obtained in violation of such defendant’s rights. Commonwealth v. Fisher, 466 Pa. 216, 352 A.2d 26 (1976); Commonwealth v. Ryan, 268 Pa.Super. 259, 407 A.2d 1345 (1979).

It is thus obvious and the Commonwealth concedes that it failed to carry its burden of proving that Appellant’s statement was not the product of an arrest made pursuant to a warrant issued without probable cause.

Nevertheless, Pa.R.Crim.P. 101.3., also in effect at the date of the proceedings below and yet in effect, provides that an arrest may be made without a warrant (1) when the offense is a felony, and (2) if the arrest is based upon probable cause. The crimes of Rape, Statutory Rape, and Criminal Conspiracy to commit those crimes are felonies, and if Detective Devlin, the arresting officer, had probable cause to arrest Appellant without a warrant, the arrest was lawful and the warrant itself mere surplusage, and the infirmity from which it suffered irrelevant.

We turn, then, to an analysis of the information known to Detective Devlin at the time of the arrest to determine whether it constituted probable cause.

II

Probable Cause for Warrantless Arrest

In Commonwealth v. Kazior, 269 Pa.Super. 518, 410 A.2d 822 (1979), allocatur denied 269 Pa.Super. 518, 410 A.2d 822 (1980), reiterated recently in Commonwealth v. Allen, 287 Pa.Super. 88, 429 A.2d 1113, 1119-20 (1981), we enunciated the test for probable cause:

“A legal arrest without a warrant depends upon probable cause. Commonwealth v. Pinney, 474 Pa. 210, 378 A.2d 293 (1977); Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967), cert. denied, 389 U.S. 875, 88 S.Ct. 168, 19 L.Ed.2d 159 (1967). Probable cause exists if the facts and circumstances which are within the knowledge of the police at the time of the arrest, and of which they have reasonable trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that a suspect has committed or is committing a crime. Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979); Commonwealth v. Culmer, 463 Pa. 189, 195, 344 A.2d 487, 490 (1975); Commonwealth v. Jones, 457 Pa. 423, 428, 322 A.2d 119, 123 (1974); Commonwealth v. Garvin, 448 Pa. 258, 262, 293 A.2d 33, 35-36 (1972); Commonwealth v. Bishop, supra. The burden of showing probable cause is on the Commonwealth. Commonwealth v. Holton, 432 Pa. 11, 14-15, 247 A.2d 228, 230 (1968). The standard of probable cause, however, must be applied to the totality of the circumstances facing the police. Facts insufficient to justify an arrest if considered separately may in combination supply probable cause. Commonwealth v. Roscioli, 240 Pa.Super. 135, 138, 361 A.2d 834, 836 (1976). In Commonwealth v. Tolbert, 235 Pa.Super. 227, at p. 230, 341 A.2d 198, at p. 200 (1975), this Court said: When we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element. . . We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might. . . Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond-a-reasonable-doubt’ standard which we apply in determining guilt or innocence at trial. Commonwealth v. Devlin, 221 Pa.Super. 175, 289 A.2d 237 (1972).”
Id. 269 Pa.Super. at 523-24, 410 A.2d at 824-25.

And see Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978); Commonwealth v. Patterson, 266 Pa.Super. 167, 403 A.2d 596 (1979).

When we apply this test to the facts at bar, probable cause to arrest emerges with singular clarity. As one example, it will be recalled that two of Appellant’s confederates, Marvin Steward and Andre Harris, named “Zeke” as a participant in the crimes while giving Detective Devlin statements incriminating themselves. This Court, and our Supreme Court as well, have frequently held that the uncorroborated confession of an accomplice which implicates the suspect will, alone, supply probable cause for a warrantless arrest. Commonwealth v. Stokes, supra; Commonwealth v. Jenkins, 288 Pa.Super. 232, 431 A.2d 1023 (1981) (collects cases); Commonwealth v. Patterson, supra. While it is correct to note that neither Steward nor Harris used Appellant’s surname when giving their statements to Detective Devlin, the connection between the “Zeke” named by Steward and Harris and Appellant, was supplied by Juvenile Aid Division officers and “Mimi”.

Appellant next attacks separately each category of information in the possession of Detective Devlin at the time of the arrest and argues that standing separately, no category supplies probable cause. We will respond, as we have often stated in the past, that facts insufficient to justify an arrest separately may in combination supply probable cause. Commonwealth v. Allen, 287 Pa.Super. 88, 429 A.2d 1113 (1981); Commonwealth v. Kazior, supra; Commonwealth v. Roscioli, 240 Pa.Super. 135, 138, 361 A.2d 834, 836 (1976).

Finally, Appellant relies upon Commonwealth v. Brooks, 468 Pa. 547, 364 A.2d 652 (1976), wherein the Supreme Court found an absence of probable cause upon which to base a warrantless arrest, and argues that the facts in the instant case are virtually indistinguishable from the facts there. In Commonwealth v. Jenkins, supra, 288 Pa.Super, at 238, n. 7, 431 A.2d at 1026, n. 7, Judge Price, writing for a panel of this Court, set forth the operative facts of Brooks upon which the Supreme Court found that the Commonwealth had failed to establish probable cause for appellant’s arrest:

“Detective O’Brien was the police officer assigned to investigate the homicide for which appellant was arrested. While at the scene of the crime, Detective O’Brien received information from witnesses to the shooting, and other young, people in the area, that the ‘Cedar Street gang’ was responsible, and that this gang had been involved in several similar incidents in the past four weeks. Detective O’Brien then began to patrol the area looking for suspects and ‘. . . tried to cultivate more information. . . ’ At approximately 11:30 p.m., December 10,1973, approximately three hours after the shooting, Detective O’Brien received information from police headquarters that an anonymous phone caller had stated that ‘Brooks from Baltimore Avenue was one of the persons responsible for this shooting’. Detective O’Brien also received information that several persons responsible for the shooting were in a bar located at Rogers Street and Baltimore Avenue. The source of this information does not appear on the record. At approximately 12:45 a. m., December 11, 1973, while patrolling near the intersection of Rogers Street and Christian Street (near the location of the bar named by the anonymous caller) in an effort to locate members of the Cedar Street gang and obtain information Detective O’Brien stopped appellant who was walking on the street to ask him some questions. The detective’s intent in questioning appellant was to ascertain the validity of the anonymous telephone tip, and to ascertain the identi[t]y of ‘Brooks from Baltimore Avenue’. At this time the detective did not know appellant’s identity. In fact, he knew nothing about appellant but suspected that the person walking along the street might be a Cedar Street gang member. Detective O’Brien asked appellant his name and was told ‘Richard Brooks’. The detective then asked appellant where he lived, and upon hearing that appellant lived on Baltimore Avenue, placed appellant under arrest. Commonwealth v. Brooks, 468 Pa. 547, 551-52, 364 A.2d 652, 654 (1976).

Appellant’s reliance upon Brooks is severely misplaced as the case is readily distinguishable from the case sub judice. Instantly, Detective Devlin had received information directly from two of Appellant’s co-felons implicating themselves and “Zeke”. One of co-felons told Devlin that “Zeke” lived at 50th and Reno Streets. “Mimi” confirmed that address and Juvenile Aid Division officers supplied the complete name and approximate address of Appellant. Finally, neighbors furnished Devlin with Appellant’s specific address several doors from the intersection of 50th and Reno Streets. This information can hardly be equated with the anonymous telephone call that essentially led to the arrest in Brooks.

In Commonwealth v. Jenkins, supra, quite similar on its facts to the case at bar, the arresting officer arrested appellant’s co-felon for participation in two robberies. At the time of his arrest, the co-felon admitted his involvement in the crimes and also implicated one “Jinx” (appellant) who “hung out” between the 1400 and 1600 blocks of Susquehanna Avenue, in Philadelphia with one Moore, a third co-felon. On the basis of this information, the arresting officer commenced a patrol of the area identified by the co-felon as Jinx’s “hangout”. The officer asked residents whether they knew a person called “Jinx”, who was a friend of Moore and was frequently in that neighborhood. The officer subsequently received information from a telephone caller, not identified on the record, that he knew Moore and his friend “Jinx”. In a second telephone call, the caller later told the officer that Jinx was then at a specified location, between the 1400 and 1700 blocks of Susquehanna Avenue, wearing a new brown cashmere coat. The officer arrived at the loca- . tion, approached appellant who was wearing a “new-looking gray wool coat”. As the officer drew near to appellant, whose identity was then yet unknown to the officer, he asked, “Jinx?” Appellant replied “yes”, was thereupon arrested, and gave an incriminating statement later introduced at his trial. Appellant in Jenkins contended on appeal, as does Appellant here, that the statement was improperly admitted as the product of an illegal arrest, made without probable cause. Id., 288 Pa.Super. at 234-35, 431 A.2d at 1024.

The Court disagreed and found probable cause on the basis of the co-felon’s statement alone. We are more than satisfied that there is no substantive distinction between Jenkins and the case before us and we must reach the same result.

Affirmed.

      . 18 Pa.C.S.A. § 3121.

      . 18 Pa.C.S.A. § 3122.

      . 18 Pa.C.S.A. § 3125.

      . 18 Pa.C.S.A. § 903.

      . Notes of Testimony, Suppression Hearing (“N.T.S.H.”) 151-58.

      . In Wong Sun, supra, 371 U.S. at 487-88, 83 S.Ct. at 417, 9 L.Ed.2d at 455, the Supreme Court said:
      “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality by means sufficiently distinquishable to be purged of the primary taint.” [Citation omitted].
      Thus, as Commonwealth v. Bogan, supra 482 Pa. at 157, 393 A.2d at 427 points out, not all confessions made by a person illegally arrested are per se inadmissible as evidence at trial. The issue can be resolved only on the facts of each case. Id., 482 Pa. at 157, 393 A.2d at 427. See Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974) and Commonwealth v. Yochorn, supra, discussing at length the concepts of attenuation and dissipation of the primary taint of an illegal arrest. Suffice ii to say that in the case at bar there is not the slightest suggestion that if tainted by an illegal arrest, Appellant’s statement was purged of such primary taint.

      . Cf. Commonwealth v. Willis, 483 Pa. 21, 26, 394 A.2d 519, 521 (1978), and see Commonwealth v. Hunt, supra, 280 Pa.Super. at 208, n.2, 421 A.2d at 685, n.2, considering but not deciding the question of whether our scope of review differs in the event the suppression court has failed to make findings. See also, Commonwealth v. Jackson, supra, 464 Pa. at 297-298, 346 A.2d at 748, suggesting that when a suppression court and the court en banc have failed to make findings of fact and conclusions of law, and the reviewing court is unable to determine as a matter of law that a confession was psychologically coerced, the court must remand for compliance with Pa.R.Crim.P. 323(i). Compare Commonwealth v. Sparrow, 471 Pa. 490, 498 n. 5, 370 A.2d 712, 716 n. 5, discussing the question in terms of the Court’s opinion in Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961).

      . “Mimi’s” name and address were known to Detective Devlin.

      . Devlin also testified that Appellant, Ezekiel Simmons fit the two descriptions given him by Mrs. Simmons and the victim.

        . On April 26, 1979, the Supreme Court adopted Pa.R.Crim.P. 119, effective as to arrest warrants issued on or after July 1, 1979. The Rule provides the following:
      “RULE 119. Requirements for Issuance
      (a) No arrest warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.
      (b) At any hearing on a motion challenging an arrest warrant, no evidence shall be admissible to establish probable cause for the arrest warrant other than the affidavits provided for in paragraph (a).”
      The procedural change effected by the Rule is evident from the comment to the Rule:
      “Comment: This rule does not preclude oral testimony before the issuing authority, but it requires that such testimony be reduced to an affidavit prior to issuance of a warrant. All affidavits in support of an application for an arrest warrant must be sworn to before the issuing authority prior to the issuance of the warrant.
      Where a properly sworn to complaint contains a statement of facts and circumstances sufficient to establish probable cause for the issuance of the arrest warrant, it may serve as the affidavit.
      This rule carries over to the arrest warrant, the requirement that the evidence presented to the issuing authority be reduced to writing and sworn to, and that only the writing is subsequently admissible to establish that there was probable cause. In these respects, the procedure is now similar to that applicable to search warrants. See Rule 2003.”

      . See notes 1, 2 and 4, supra.

      12. The test for probable cause is the same whether or not a warrant is present, as an arresting officer must be aware of information sufficient for the issuance of a warrant at the moment he makes the arrest. Commonwealth v. Mitchell, 477 Pa. 274, 278-79, 383 A.2d 930, 932 (1978), quoting from Commonwealth v. Dickerson, 468 Pa. 599, 605, 364 A.2d 677, 680-81 (1976).

      . Appellant contends in his brief that Detective Devlin, during his testimony, could not recall whether “Mimi” had named “Zeke” as one of the persons who she saw with the victim shortly prior to the attack. Appellant’s Brief, at 6. It is true that during direct examination, Devlin testified that he could not recall whether “Mimi” told him she had seen “Zeke”. (N.T.S.H. 63.) Under cross examination by Appellant’s counsel, however, Devlin on several occasions testified that “Mimi” had indeed told him that she had seen “Zeke” with the victim at that time. (N.T.S.H. 84-85).

      . As earlier noted, we have found the warrant obtained by Detective Devlin to have been issued without a factual basis upon which a magistrate might find probable cause, and we have treated the issue before us as one involving a warrantless arrest. It is also noted that Appellant was arrested in his home. In Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), the Supreme Court held for the first time that in the absence of exigent circumstances, an arrest warrant is required to effectuate a valid arrest inside the arrestee’s home. Williams was decided on November 18, 1978, and Appellant, at bar, was arrested on May 31, 1977, 17 months earlier. In Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980), the Supreme Court declined to accord Williams retroactive effect and held that the decision applies only to arrests made subsequent to November 18, 1978.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    440 A.2d 1389
    COMMONWEALTH of Pennsylvania v. James BANNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 22, 1981.
    Filed Feb. 5, 1982.

      H. Stanley Rebert, Public Defender, York, for appellant.
    William T. Hast, Assistant District Attorney, York, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge:

In 1979, appellant was convicted of four criminal counts arising out of an attempted prison escape in which he participated in 1978. He received a sentence of 15-30 years imprisonment for the crimes of assault by prisoner, aggravated assault, criminal attempt to commit escape, and possession of implements for escape. On appeal, he argues that the trial court erred in two respects. First, he assigns error to the granting of an application to extend the trial date made by the Commonwealth. Second, he contends that the trial court should have granted a mistrial because the Commonwealth used a peremptory challenge to remove the only black venireman. We affirm.

The incident which led to appellant’s trial occurred on November 19, 1978 at the York County prison where appellant was incarcerated. Mr. Banner was shot and injured during the attempt.

A written complaint was filed against him on March 20, 1979. A preliminary hearing was held on March 21; he was arraigned on May 21, 1979 and trial was set for the July, 1979 term of York County Criminal Court. On July 19, 1979, the Commonwealth filed an application to extend the time of trial which was granted. Trial was held on September 27, 1979; the 180-day period prescribed by Rule 1100 expired on September 16, 1979.

Appellant argues that the lower court erred in granting an extension of the trial date because the Commonwealth failed to exercise due diligence to bring the case to trial within the requisite period.

Rule 1100 provides in pertinent part:

(a)(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
* * * % * *
(c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.... Such application shall be granted only if trial cannot be commenced within the proscribed period despite due diligence of the Commonwealth. . . .

The Commonwealth has the burden of establishing due diligence. Commonwealth v. Bayani, 261 Pa.Super. 369, 396 A.2d 443 (1978).

The standard of due diligence demands only that reasonable efforts be undertaken. Commonwealth v. Brinton, 275 Pa.Super. 304, 418 A.2d 734 (1980).

Citing Commonwealth v. O'Shea, 465 Pa. 491, 495, 350 A.2d 872, 874 (1976), the Bayani court explained,

An extension of time under Rule 1100(c) “many [sic] be justifiably granted because of a casual relationship between the ‘judicial delay’ and the Commonwealth’s inability to commence trial despite due diligence . . . [e.g.] [situations where the Commonwealth is prepared to commence trial prior to the expiration of the mandatory period but the court because of scheduling difficulties or the like is unavailable. (Additional citations omitted.) Id., 261 Pa.Super. at 374, 396 A.2d at 445.

In Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the Supreme Court held that, under certain circumstances, a trial court may grant a timely application by the prosecution to extend the prescribed time for trial on the sole ground that the court cannot provide trial within the prescribed period. The court established standards that must be met if such an application is to be granted. The test is as follows:

Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Id., 469 Pa. at 222, 364 A.2d at 1349, 1350.

The trial court judge summarized the facts surrounding the scheduling of this case as follows:

On September 13, 1979, when the application for the extension was called for the Court’s determination, the record discloses that the following statement made by the assistant district attorney was not contested by the defendant:
“This case was scheduled for trial in this Courtroom on July 17, 1979 that was a Tuesday. I should say, Mr. Rebert is defense counsel in this case and the Commonwealth are willing to stipulate that the record reflects that Your Honor was tied up in the case of Commonwealth versus Michael E. Sexton, that was No. 451 Criminal Action, 1979, that case commenced on July 16th, 1979 and the Jury did not return in that case until around 11 a. m. At that time the Commonwealth was ready to proceed on these cases as well as the case of Commonwealth versus Robert Altland. At that time apparently there was some problems with the defendant in the Altland case taking an overdose of sleeping pills. The case did not finally start until July 18, 1979 and Your Honor was tied up in that case during the days of July 18th, July 19th and July 20th, 1979. July 20th was the final day of Criminal Court for the July term. The Commonwealth would seek to extend this case for trial until September Term of Court on the grounds of unavailability of Court time.”

Appellant has not disputed the Commonwealth’s assertion that it was ready to proceed in July. The Commonwealth has demonstrated its due diligence by being so prepared.

The second prong of the Mayfield test is also met. The case, originally scheduled for July, was rescheduled for the next available term. Statements of the reasons for the delay in trying this case appear both in the trial transcript and the trial court opinion. The trial judge explained that it is the policy in York County to assign cases to specific judges and not to reassign those cases in the event of delay. The facts surrounding this particular delay have been set forth earlier in this opinion and are found in the trial court opinion.

In Commonwealth v. Mayfield, supra, the Supreme Court wrote:

The calendaring of cases lies ultimately within the power and responsibility of the trial court. The ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge § 3.8(a) (Approved Draft, 1972) provides:
“The trial court has the ultimate responsibility for proper management of the criminal calendar and should take measures to insure that cases are listed on the calendar and disposed of promptly as circumstances permit.”

Id., 469 Pa. at 218, 219, 364 A.2d at 1347.

In the order granting the extension of trial date, the trial court further explained its scheduling procedure. It said:

Cases are assigned to a specific Judge as an administrative procedure to move these cases. While that trial list is not inflexible and cases are removed from time to time when an opening appears, we consider it a sound administrative device and have stated that we will not attempt to inquire as to whether each Judge each day could have handled another case, if so which one. That was tried once and the Rule 1100 hearings took all day to get through part of the time at issue.
We think this record sufficiently establishes a sound administrative program designed to meet the policy of Rule 1100 and the fact that the case could not be tried because of unavailability of court time.

Apparently, the scheme adopted by the York County courts is designed to achieve efficient scheduling and disposal of cases.

The record in the present case indicates that the delay was due to court scheduling problems and the extension was properly granted.

The remaining issue raised by appellant concerns the exercise of a peremptory challenge by the Commonwealth. Appellant argues that the trial court should have granted a mistrial when the challenge was used to remove the only black venireman. We disagree.

As appellant concedes, the United States Supreme Court has stated that, “the presumption in any particular case must be that the prosecutor is using the state’s challenges to obtain a fair and impartial jury to try the case before the court.” Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

The Supreme Court explained,
[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being-open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor’s judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.

Id. at 221, 222, 85 S.Ct. at 836, 837. (See Commonwealth v. Jones, 246 Pa.Super. 521, 371 A.2d 957 (1977), in which this court cited Swain at length and concluded, that the presumption is overcome only where the defendant produces evidence that in case after case the prosecutor, regardless of the circumstances, is responsible for the removal of all blacks from every jury. (Emphasis in original)).

Appellant has not alleged the facts necessary to overcome the presumption.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 2703.

      . 18 Pa.C.S. § 2702.

      . 18 Pa.C.S. § 5121, 18 Pa.C.S. § 901.

      . 18 Pa.C.S. § 5122.

      . Appellant included in his argument the assertion that the four-month delay between commission of the crime and filing of a written complaint should militate against granting the extension. However, as is clear from the wording of Rule 1100, that rule does not apply to the period of time preceding the filing of the complaint. Subsection (g) states, “Nothing in this Rule shall be construed to modify any time limit contained in any statute of limitations.”


author:
BROSKY, Judge:
      VAN der VOORT, Judge:

text:
    441 A.2d 365
    John A. WALSH and Patricia E. Walsh, his wife, Appellants, v. James Wesley SNYDER.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed Nov. 13, 1981.
    Reargument Denied March 3, 1982.
    Petition for Allowance of Appeal Denied March 19, 1982.

      Alfred J. Duff, Pittsburgh, for appellants.
    Robert S. Garrett, Pittsburgh, for appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

Appellants were denied a new trial by the court below? related to an action they brought which alleged the appellee’s actions harmed the appellants by aggravating a preexisting heart condition had by appellant. The trial court excluded deposition testimony of the treating physician from going to the jury because the court held his statements regarding aggravation of a preexisting condition would leave the jury with purely speculative judgments with regard to damages. Damages in the amount of $35,000 for Mr. Walsh and $5,000 for Mrs. Walsh were awarded for injuries apart from any claim of aggravation. We reverse the decision of the trial court.

On January 25, 1975, John Walsh and James Snyder were involved in an automobile accident. Mr. Snyder was clearly at fault. Several days later, Mr. Walsh found he could no longer bear the pain and discomfort arising from injuries he sustained. He then sought and received medical treatment for various symptoms manifested in the form of pain in his lower back, neck, and numbness in his hands. Physicians eventually determined his symptoms to be caused by injuries to his spinal cord. Appellant filed an action for damages arising from these injuries in November of 1976.

In September of 1977, appellant suffered from additional symptoms indicating poor health. He developed shortness of breath. On September 13, 1977, he sought the aid 'of Dr. Samuel I. Han. Dr. Han ordered appellant admitted to a hospital and various tests were performed which showed a 15 to 20 percent blockage of one artery. Treatment followed, not involving surgery, however, ten months later, appellant’s condition had so deteriorated that more tests were ordered. These tests demonstrated that the partially blocked artery was now 70 to 80 percent occulled. Open-heart surgery was performed, shortly thereafter. On December 8, 1978, Mr. Walsh was permitted by the trial court to amend his original complaint to include damages arising out of his heart condition which alleged an aggravation of a preexisting coronary artery disease and mental stress.

Mr. Walsh attempted to admit into evidence, at the subsequent trial, a deposition taken of Dr. Han, in which Han stated that the emotional stress caused by the accident substantially aggravated Walsh’s preexisting heart condition. The appellee objected to the use of this testimony and the trial court sustained the objection. The trial court determined the deponents statements would have left the jury with purely speculative evidence as to damages. The appellants, sometime later, petitioned for a new trial, and their request was denied. They appeal from the denial of a new trial.

Our scope of review in the instant case is limited. In Ditz v. Marshall, 259 Pa.Super. 31, 35, 393 A.2d 701, 703 (1978), we said:

The decision of the lower court, either granting or refusing a new trial, is considered to be within the sound discretion of the trial judge and will be reversed on appeal only if the appellate court determines that the trial court palpably abused its discretion. [Citation omitted.]

Myers v. Gold, 277 Pa.Super. 66, 69, 419 A.2d 663, 664 (1980). We find that a reversal is appropriate in the instant case.

The quantum burden of proof required for a verdict for the plaintiff in a negligence case is a preponderance of the evidence. As was stated in Hamil v. Bashline, 481 Pa. 256 n.9, 392 A.2d 1280 n.9 (1978), regarding the plaintiff’s burden of proof:

[The burden of proof required of plaintiff] is made clear in Comment (a) to Section 433B of the Restatement [Restatement (Second) Torts]:
“a. Subsection (1) states the general rule [that the burden of proof as to causation is on the plaintiff]. As on other issues in civil cases, the plaintiff is required to produce evidence that the conduct of the defendant has been a substantial factor in bringing about the harm he has suffered, and to sustain his burden of proof by a preponderance of the evidence. This means that he must make it appear that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation and conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.”

In satisfying its burden, the plaintiff should indicate to the court the factors which contributed to the harm and their number and, as stated in the Restatement (Second) of Torts § 433(b):

(b) Whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible.

See, Commonwealth v. Janek, 242 Pa.Super. 340, 363 A.2d 1299 (1976) (Concurring Opinion, Spaeth, J.); Wisniewski v. The Great Atlantic and Pacific Tea Company, 226 Pa.Super. 574, 323 A.2d 744 (1974).

And finally, of clear relevance to the instant case is § 433A of the Restatement (Second) of Torts which provides:

§ 433A, Apportionment of Harm to Causes
(1) Damages for harm are to be apportioned among two or more causes where
(a) there are distinct harms, or
(b) there is a reasonable basis for determining the contribution of each cause to a single harm.
(2) Damages for any other harm cannot be apportioned among two or more cases.

§ 433 is a substantial condition of the common law principle discussed in Offensend v. Atlantic Refining Co., 322 Pa. 399, 185 A. 745 (1936).

The relevant portions of the testimony of Dr. Han, out of which this conflict arises, were cited at length by the trial court at pages six through ten of its opinion. The relevant portions of those statements include:

Q Was it your original thought to continue treating him before there was any surgery?
A Well, initially because the first cardiac catheterization shows only minimal obstruction on one artery and total occlusion on the other artery, it is felt that the patient can be treated medically if we can reduce his chest pain. However, if we cannot, surgery would be recommended. Q You were continuing to treat him in an effort to determine whether or not you could medically resolve his problems or whether surgery ultimately would be required.
A In other words, even if I continued to treat him in the future, I still may recommend surgery if he didn’t go to surgery on his own.
Q I see. Would you be able to say with any degree of medical certainty when Mr. Walsh might have needed surgery for his coronary artery disease if he had any emotional stress? It gets back to the question of aggravation perhaps hastening the onset of the problem or increasing the symptoms that the person would feel.
Is there any way that you could estimate how much sooner he might have required coronary surgery as a result of the emotional stress?
A There is no way I can determine how much the stress will aggravate the progress of coronary artery disease.
Q In other words, all you can say is emotional stress aggravated a pre-existing coronary artery disease of Mr. Walsh. You have no way of fixing the degree in terms of time of onset or progress of the problem or a degree as a factor in the problem; is that fair to say?
A That is right.

The doctor also indicated that the appellant’s physical condition and habits apart from his heart, that is to say his obesity and smoking, aggravated his heart condition. He said:

Q Fundamentally we are dealing with a pre-existing coronary arterial disease that is a progressive condition; am I correct, doctor? It is a progressive condition. A It is.
Q In fact to a certain extent it is progressive in Mr. Walsh’s case even though he has had the surgery; isn’t that true? The tendency in his body is there, still there? A Yes. It still might progress after the surgery.
Q Just to go back again to that though, doctor, what is meant by the term “aggravation”? If I understand you correctly, the onset or the need of surgery here may have been aggravated or the time in which surgery was needed may have been hastened by a number of factors; is that correct? In other words, given a different set of factors but the same body as Mr. Walsh had, the same condition that he had, the time when he might need surgery might have been a little sooner or a little later depending on how these factors might have affected him.
A Yes.
Q For instance, if he had been a little less obese or heavy, he hadn’t smoked cigarettes, he might have gotten along a little further in life without having surgical intervention; but he still would have had to have it eventually. A Right.
Q Would it be true then that as far as heart surgery is concerned, he was going to have that sometime anyway whether or not he had any emotional stress factors present; is that true? The emotional stress did not make the surgery necessary, but the surgery was necessary based on the underlying factors that were present and operating in Mr. Walsh’s body. Is that true?
A Yes.

Thus, the appellant had a preexisting heart condition which was already aggravated by obesity and smoking which the treating physician states would have, even had no accident ever occurred, had eventually required surgery. Therefore, the trial court needed to determine whether the aggravation caused to appellant’s condition as a result of the accident was quantifiable.

The appellee’s attorney stated their position to the court arguing that the testimony of Dr. Han should not be admitted in the following manner:

Our position of the Defendant is that the issue here is, as stated in our initial trial brief for the Defendant, where the treating physician testifies he cannot state emotional stress from an automobile accident caused the Plaintiff’s coronary artery disease and states only that such emotional stress produced such a substantial aggravation of a preexisting coronary artery disease, but cannot state what injuries or damages Plaintiff sustained by such aggravation or state to what degree Plaintiff’s condition was intensified, increased or worsened by aggravation, there is insufficient medical testimony on which the jury may base any determination as to what damages are recoverable for lost wages, for medical treatment, including surgery, and for pain, suffering and inconvenience owing to aggravation of coronary artery disease by emotional stress.

The appellant argues that our discussion in Kravinsky, supra, clearly indicates that we must decide in his favor. In Kravinsky, supra, an automobile accident case, the trial court held that expert testimony was not sufficiently certain to establish causation between the accident and aggravation of a preexisting psychological disorder. We held:

However, to make an admissible statement on causation, an expert need not testify with absolute certainty or rule out all possible causes of a condition. Bialek v. Pittsburgh Brewing Company, 430 Pa. 176, 242 A.2d 231 (1968); Ritson v. Don Allen Chevrolet, supra [233 Pa.Super. 112, 336 A.2d 359]. Expert testimony is admissible when, taken in its entirety, it expresses reasonable certainty that the accident was a substantial factor in bringing about the injury. Hussey v. May Department Stores Inc., supra, 238 Pa.Super. [431] at 437, 357 A.2d [635] at 638. The expert need not express his opinion in precisely the same language we use to enunciate the legal standard. See In re Jones, 432 Pa. 44, 246 A.2d 356 (1968) (medical testimony need not conform to precise statutory definitions). That an expert may, at some point during his testimony, qualify his assertion does not necessarily render his opinion inadmissibly speculative.
Woods v. Pleasant Hills Motor Company, 454 Pa. 224, 309 A.2d 698 (1973); Commonwealth v. Joseph, 451 Pa. 440, 304 A.2d 163 (1973).
Applying the above standard to the instant case, we conclude that Dr. Ascher’s expert testimony was sufficiently definite and certain to establish a causal link between the collision of May 22, 1970 and Mrs. Kravinsky’s driving phobia. His initial statement that he felt that the collision was a significant cause of her phobic condition clearly expresses a professional judgment of reasonable certainty. Euker v. Welsbach Street Lighting Co. of America, 149 Pa.Super. 78, 25 A.2d 758 (1942). That he characterized the collision as a “significant cause” rather than a “substantial factor” makes no difference, In re Jones, supra; the testimony established proximate cause, Hamil v. Bashline, supra; Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965); Restatement (Second) of Torts, § 432 (1965). His subsequent testimony that there was not one overriding factor contributing to Mrs. Kravinsky’s problem in no way contradicted his initial statement; rather, it underlined his belief that no one factor was solely responsible for her phobia. Diakolios v. Sears Roebuck & Co., 387 Pa. 184, 127 A.2d 603 (1956). Moreover, Dr. Ascher’s unequivocal testimony that “[i]t was [his] opinion that her behavioral difficulty obviously began on May 22, as a result of that accident” left no doubt that in Dr. Ascher’s professional opinion the collision caused the aggravation of Mrs. Kravinsky’s condition. Her “behavioral difficulty”, described in Dr. Ascher’s prior testimony as her temporary refusal even to enter an automobile, followed by her continued inability to drive in a normal fashion, precisely defined the manifestations of her driving phobia. Viewing all of the Dr. Ascher’s testimony, we conclude that the lower court was correct in finding that his testimony established, with reasonable certainty, that the May 22,1970 collision was a substantial factor in bringing about Mrs. Kravinsky’s driving phobia. [Footnotes omitted.]

Thus, the testimony of Dr. Han is that the accident played a substantial role in aggravating a preexisting condition. Though the need for surgery may have indeed been inevitable, the accident may have aggravated that condition and hurried the onslaught of a crisis. We do not decide whether that would have been the proper decision in the instant case, rather we hold that there was sufficient evidence to permit the jury to hear Dr. Han’s testimony. Clearly, the damages would be difficult to ascertain, however, this court has not held plaintiffs in such actions to a very rigorous standard of exactness in this regard. We have held that these questions are best suited for juries. Accordingly, we reverse the decision of the trial court and order a new trial where Dr. Han’s testimony is to be admitted.

It has been the policy of this court and our Supreme Court to assure that each tort feasor compensate the injured plaintiff for the wrong he has done him. We do not decide that such a compensatable harm occurred in the instant case but hold that the trial court abused its discretion in not granting a new trial where relevant testimony should have been heard by the jury and was not.

Order of the trial court reversed. New trial is ordered.

VAN der VOORT, J., files dissenting opinion.

VAN der VOORT, Judge:

I respectfully dissent from the decision of the majority.

This case involves a tortious injury to John A. Walsh sustained by him in an automobile collision on January 25, 1975 between appellant-plaintiff and appellee-defendant James Wesley Snyder. A jury awarded $35,000 to John Walsh and $5,000 to his wife Patricia in damages.

Appellant-plaintiff claims he should have been awarded damages for the aggravation of a pre-existing heart disease (blockage of a coronary artery) and mental stress. Two years and eight months after the accident, appellant was treated by Dr. Han who performed heart surgery on Mr. Walsh. Appellant offered to put in evidence Dr. Han’s testimony in an attempt to have the jury consider the aggravation of his pre-existing arterial blockage. The trial judge ruled that this testimony (which was by deposition) was too indefinite and uncertain to be allowed in evidence. While we must consider the doctor’s deposition as a whole (which I do), the doctor’s testimony relating to appellant’s heart condition is summed up in his answer to a question as follows:

“Q.....
Is there any way that you could estimate how much sooner he might have required coronary surgery as a result of the emotional stress?
A. There is no way I can determine how much the stress will aggravate the progress of coronary artery disease.”

Lest it appear that taking one answer out of context is unfair, an examination of the doctor’s testimony as a whole reveals a frank inability on his part to state with any degree of medical certainty or assurance that the accident caused or aggravated the pre-existing heart condition.

I find that the trial judge ruled correctly that Dr. Han’s testimony be excluded and I would affirm the action of the court below in ruling out Dr. Han’s deposition.

      . Restatement (Second) of Torts § 461 states an actor may be liable for aggravation of a preexisting physical condition unknown to him. Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979); Boushell v. Beers, 215 Pa.Super. 439, 258 A.2d 682 (1969).

      . Fault for the accident is not an issue in the instant case.

      3. A helpful discussion of this principle is found in Comment e to the Restatement (Second) of Torts § 433A. It states:
      e. Innocent Causes. The same kind of apportionment may be made where a part of the harm can fairly be assigned to an innocent cause..... There may also be apportionment between harm which results from a preexisting condition, for which the defendant is in no way responsible, and the further harm which his tortious conduct has caused.
      Illustrations:
      6. ...

        7. ...
      8. A suffers from arthritis in his arm, as a result of which he has a 50 percent disability in the use of his arm. He is struck by an automobile negligently driven by B, and the injury aggravates the arthritis so that he loses the use of the arm entirely. B may be held liable for 50 percent of the injury.

      . In Schultz v. City of Pittsburgh, 370 Pa. 271, 88 A.2d 74 (1952), Mr. Justice Musmanno wrote for our Supreme Court that the duration of time which the aggravation caused an eventual crisis to hasten is a matter to be left to the jury. He opined in discussing that court’s earlier decision in Offensend v. Atlantic Refining Co., supra.
      The court concluded that in the absence of any expression of opinion by medical experts as to the duration of the increased inflammation resulting from the injury, the jury could not be allowed to assess damages for so long a period of time, stating “the jury should not have been allowed to hazard a guess beyond the period shown with reasonable certainty.” However, the court did say that though the doctors failed to testify as to the length of time the effects of the aggravation of the preexisting condition would continue, “it would be legitimate to draw the inference that they did not subside immediately, warranting recovery for the suffering, medical costs, and loss of earnings for a reasonable time thereafter.” In the instant case there is nothing to indicate for how long a period of time the jury assessed damages. It had the right, even in the absence of any expression of medical opinion as to the duration of the disability, to assess damages for a reasonable time, and the amount of the verdict does not so shock our sense of justice as to force us to conclude that the jury abused that right, (emphasis added)
      Thus, when the trial court at pages 5 and 6 of its opinion that:

        Mr. Walsh was already a candidate for open-heart surgery, independently of the accident. In the Offensend case, the plaintiff produced objective medical evidence through x-rays to substantiate a worsening of his tubercular condition after the accident. In this case, there is a lack of medical evidence as to what injury resulted from the aggravation of the pre-existing coronary artery disease. The defendant’s negligence did not cause the coronary artery disease, and he is therefore not liable for the medical treatment and surgery connected with the coronary artery disease. Dr. Han could not say with any degree of reasonable medical certainty to what degree or at what speed or at what time emotional stress would accelerate or aggravate the preexisting coronary artery disease. He was unable to state that the onset of the problem came a month faster, a year faster or a day faster because of the emotional stress. He was unable to say that the need for surgery was brought on by the aggravation rather than by the underlying coronary artery disease. He was unable to say which or what pain, suffering, and inconvenience resulted from aggravation that would not have occurred in the underlying coronary artery disease independently from the accident.
      According to Mr. Justice Musmanno’s clear interpretation of Offensend, supra, in Schultz, supra, the trial court should have permitted the jury to hear the testimony so that it could determine “damages for a reasonable time.” The lower court’s interpretation of Offensend was clearly too restricted.


author:
BROSKY, Judge:
      JOHNSON, Judge, POPOVICH, Judge,

text:
    441 A.2d 371
    COMMONWEALTH of Pennsylvania v. John L. MOODY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Jan. 29, 1982.

      Bruce A. Franzel, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   BROSKY, Judge:

John L. Moody, appellant, was convicted at a non-jury trial on April 25, 1979 of attempted rape, indecent assault, simple assault, recklessly endangering another person and unlawful restraint. New counsel brought a motion for a new trial and/or arrest of judgment, which was denied, after argument, on August 7, 1979. Present counsel then requested and was permitted to file new post-verdict motions, which were denied after argument on October 31, 1979. Moody was subsequently sentenced to a term of three to ten years imprisonment for attempted rape and a two-year probationary term on each other conviction, all to be served concurrently with each other and with the sentence for attempted rape. Reconsideration of sentence was argued and denied on November 14, 1979. This appeal followed. We hold that the judgment of sentence be reversed and vacated in part together with a remand for sentencing.

Moody contends that there was insufficient evidence to support a conviction of him for attempted rape, recklessly endangering another or unlawful restraint. He asserts also that his trial counsel was ineffective in failing to move to suppress an identification and in failing to object to the admission into evidence of a photograph used in the identification process. We reverse the recklessly endangering another person conviction and affirm all others.

It is well settled that in passing upon a claim of insufficiency we must view the evidence in the light most favorable to the verdict winner. The evidence is sufficient if, accepting as true all the evidence and all reasonable inferences therefrom upon which, if believed, the jury could have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that appellant is guilty of the crimes for which he was convicted. Commonwealth v. Horne, 479 Pa. 496, 388 A.2d 1040 (1978).
Moreover, it is the province of the trier of fact, who is free to believe all, part or none of the evidence, to pass upon the credibility of witnesses and the weight to be accorded the evidence. Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978). Finally, evidence may be sufficient to convict even though wholly circumstantial. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978).

Commonwealth v. Dreibelbis, 493 Pa. 466, 469, 426 A.2d 1111, 1112-13 (1981).

The evidence when viewed in a light most favorable to the Commonwealth indicates that at about 12 noon on October 11, 1978, Ruthy Johnson, a twelve-year old, was accosted by Moody, while walking down the street in front of her home. Johnson testified that Moody forced her into the basement of a building where he sexually molested her. Moody forced Johnson to stand ón a chair while he fondled her genitalia. She stated he eventually began to unzip his pants, whereupon she kicked him in the groin.

Moody then fled the building, only to be followed by Johnson. Moody struck Johnson, in an attempt to keep her in the cellar and then attempted to lock the door to the cellar, thereby trapping Johnson within. However, Johnson told him not to lock the door, which Moody did not. Moody then left the building. Johnson exited the cellar shortly after Moody, alerted others of her situation, and witnessed Moody drive away in a car which had been parked in the street. Johnson then observed the license number, and began to call it out to a friend. However, Moody, realizing what was happening, alighted the car and bent the license plate so as to obscure the number from Johnson’s vision. Moody returned to the car and drove off, only to strike another automobile, forcing him to stop and depart on foot. Johnson subsequently identified Moody through a photographic array.

Rape is defined in 18 Pa.C.S.A. § 3121 as:
A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious; or
(4) who is so mentally deranged or deficient that such person is incapable of consent.
Criminal attempt is defined in 18 Pa.C.S.A. § 901(a) as: Definition of attempt.—A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.

Moody contends that no evidence was presented to support a finding that he intended to use force for the purpose of obliging Johnson to engage in sexual intercourse against her will. We do not agree.

In Commonwealth v. Bullock, 259 Pa.Super. 467, 472, 393 A.2d 921, 923 (1978), we said:

Appellant’s final contention, that the evidence was insufficient to sustain the charges of attempted rape and two counts of aggravated assault is not meritorious. With regard to attempted rape, appellant contends that ripping Miss Kirby’s shirt, pulling down her bra, and attempting to remove her pants was not so substantial a step toward rape to fulfill the requirement of an attempt. Crimes Code, 18 Pa.C.S. § 901(a) (1973). It should be noted that appellant had already committed the sexual offense of indecent assault under the Crimes Code, 18 Pa.C.S. § 3126(1) when he tore open Miss Kirby’s shirt and ripped down her bra. Especially given the awesome evidence of appellant’s attack on Miss Kirby, and because he went further and attempted to remove Miss Kirby’s pants, it was reasonable for the factfinder to conclude that appellant had taken a substantial step toward rape. Cf. Commonwealth v. White, 232 Pa.Super. 176, 181, 335 A.2d 436, 438 (1975). Indeed, it would appear that the only other reasonable inference which could arise from appellant’s conduct was that he intended to commit involuntary deviate sexual intercourse, also a felony of the first degree. Crimes Code, 18 Pa.C.S. § 3123. Since orthodox intercourse is the more common act, rape was the more natural inference.

We are not persuaded by Moody’s argument and hold that there was clearly sufficient evidence for the trial court to convict him of attempted rape. The evidence herein is as compelling as that found in Commonwealth v. Bullock, supra. Hence, we affirm the trial court’s judgment of sentence for attempted rape.

Moody contends also that there was insufficient evidence to convict him of recklessly endangering another person. This offense is defined at 18 Pa.C.S.A. § 2705 as:

Recklessly endangering another person
A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

Serious bodily injury is defined in 18 Pa.C.S.A. § 2301 as:

Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

We have determined in Commonwealth v. Trowbridge, 261 Pa.Super. 109, 395 A.2d 1337 (1978), that the crime consists of reckless conduct which caused and resulted in a substantial risk of death or serious bodily injury. We are unable to conclude that any of Moody’s actions, forcing Johnson into the basement, striking her while he attempted to leave the basement, or touching her body in a vulgar and offensive manner, placed Johnson in sufficient physical danger to support a conviction for recklessly endangering another person. Therefore, the judgment of sentence for recklessly endangering another person is reversed.

Unlawful restraint is defined in 18 Pa.C.S.A. § 2902 as:

Unlawful Restraint
A person commits a misdemeanor of the first degree if he knowingly:
(1) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury; or
(2) holds another in a condition of involuntary servitude. In Commonwealth v. Belgrave, 258 Pa.Super. 40, 45, 391

A.2d 662, 664 (1978), we said:

Appellant contends that the evidence was insufficient to sustain the verdict. “The test for the sufficiency of evidence in a criminal case is whether, viewing all of the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.” Commonwealth v. Bastone, 466 Pa. 548, 552, 353 A.2d 827, 829 (1976); Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977). Moreover, it is axiomatic that it is within the province of the jury to pass upon the credibility of witnesses and determine the weight to be accorded the evidence adduced. Commonwealth v. Alston, 461 Pa. 664, 337 A.2d 597 (1975); Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975). Instantly, I entertain no doubt that Mrs. Washington’s testimony was clearly sufficient to prove appellant’s guilt beyond a reasonable doubt. Appellant’s argument that the proof was deficient with respect to the crimes of unlawful restraint and false imprisonment because there was no evidence that the victim was forced into the abducting vehicle or restrained from leaving has no merit. Given Mrs. Washington’s testimony that her husband was being assaulted in the back seat of the car by several assailants, whom he forcibly resisted, the jury could reasonably infer that the victim was being restrained against his will.

In the instant case, it is clear that Ruthy Johnson was forcibly detained in the cellar of a house against her will. She was threatened by Moody, struck by him, and she forcibly resisted his actions. We hold that based upon this evidence the court could have reasonably inferred that Ms. Johnson was being restrained by Moody. Thus, the judgment of sentence for unlawful restraint is affirmed.

Next, Moody asserts that he received ineffective assistance of counsel from his trial counsel when his trial counsel failed to move to suppress an identification and in failing to object to the admission of a photograph used in the identification process into evidence.

It is well established that counsel will only be found ineffective where the course of action chosen by counsel lacked some reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Weiss, 289 Pa.Super. 9, 432 A.2d 1020 (1981). The burden lies with the party asserting the existence of ineffective assistance of counsel to prove that claim. Commonwealth v. Bowers, 245 Pa.Super. 214, 369 A.2d 370 (1976).

In Commonwealth v. Hill, 231 Pa.Super. 371, 375-376, 331 A.2d 777, 780 (1974), we said:

Ordinarily there is little tactical reason for not filing a motion to suppress. We cannot tell from the record why counsel did not file one. It does not follow from this fact, however, that counsel was ineffective. It may be that he saw little chance for success and therefore little benefit to be derived from the motion. Also, he may have regarded the bait money as a relatively small part of the prosecution’s case; the police officer who had bought the heroin and the officers who had witnessed the transaction all were ready to and did identify petitioner as the seller. However, it is not important, and we need not decide, what was in counsel’s mind; it may even be assumed that his failure to file a motion was an oversight. We have considered what would have been the result if he had filed a motion and have seen that the motion would have been denied, for the arrest was lawful and therefore the search incident to it valid. Counsel will not be declared ineffective for failure to file a motion that he could reasonably have regarded as pro forma.

Moody has not asserted any legal basis upon which the suppression could have been supported. Under these circumstances, we are unable to hold that Moody has successfully proven that his counsel was ineffective.

Moody claims also that his counsel was ineffective because he did not object to the admission into evidence of a photograph used in the identification process. Moody complains that the photograph indicated that he had a prior criminal history and as such should not have been admitted.

We reject this argument. Trial counsel had a reasonable basis for not objecting to the introduction of the photograph. Trial counsel attempted to impeach the identification testimony of the victim by pointing out the dissimilarities between the photograph and Johnson’s description of her assailant. We believe this to have been a reasonable basis for not objecting to the introduction of the photograph. Commonwealth v. Sweitzer, 261 Pa.Super. 183, 395 A.2d 1376 (1978).

Accordingly, we hold that trial counsel was not ineffective for failing to object to the introduction of the photograph.

The remaining question is whether we should remand for resentencing. In Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972), we held that where a conviction on one count may have influenced sentencing on other counts, all sentences should be vacated and the case remanded for resentencing. We will not remand, however, where to do so would be a mere procedural exercise. Commonwealth v. Grant, 235 Pa.Super. 357, 341 A.2d 511 (1975). Here, where Moody received two-year probationary sentences for all his convictions excepting attempted rape, we cannot be certain that Moody’s conviction for recklessly endangering another person may not have influenced the court in the severity of the sentence it imposed. Thus, the sentences for recklessly endangering another person and attempted rape are vacated and the case remanded for resentencing on the attempted rape charge only. Commonwealth v. Conrad, 285 Pa.Super. 571, 428 A.2d 192 (1981).

Judgment of sentence reversed and vacated in part and remanded in part for resentencing. Jurisdiction is not retained by this court.

JOHNSON, and POPOVICH, JJ., file concurring and dissenting opinions.

JOHNSON, Judge,

concurring and dissenting:

I join in the majority’s opinion to the extent that it affirms Appellant’s conviction for attempted rape, reverses the conviction for recklessly endangering another person and finds Appellant’s ineffective assistance argument to be without merit. However, I respectfully dissent on two issues, namely, (1) the majority’s affirmance of the unlawful restraint conviction, and (2) the issue of merger of simple assault and indecent assault into the attempted rape conviction.

I.

The majority opinion affirms Appellant’s unlawful restraint conviction and quotes language from Commonwealth v. Belgrave, 258 Pa.Super.Ct. 40, 45, 391 A.2d 662, 664 (1978) for support. However, the statute for unlawful restraint, 18 Pa.C.S.A. § 2902(1) requires the victim to have been exposed to “risk of serious bodily injury . . . ”.

The majority opinion determines that Appellant’s actions did not place the victim in “sufficient physical danger” to support a conviction for recklessly endangering another person. If Appellant’s conduct did not place the victim in danger of death or serious bodily injury, as required by the statute concerning recklessly endangering another person, then I fail to see how his restraint of the victim exposed her to the risk of serious bodily injury as required by the unlawful restraint statute. I also fail to find a semantical difference, under the instant factual situation, between the language in the statute concerning recklessly endangering another person, 18 Pa.C.S.A. § 2705 which states “. . . which places or may place another person in danger of . . . serious bodily injury.” and the language in the unlawful restraint statute, 18 Pa.C.S.A. § 2902 which states “. . . in circumstances exposing him to risk of serious bodily injury. . .”.

Therefore, if, as the majority determines, Appellant’s conduct did not place the victim “in sufficient physical danger to support a conviction for recklessly endangering another person”, then that same conduct must be insufficient to support the unlawful restraint conviction. Hence, the conviction for unlawful restraint should be reversed.

II.

The majority opinion does not address the question of the merger of the simple assault and indecent assault convictions into attempted rape. Although not raised by Appellant in his brief, the trial judge, in his lower court opinion, reviews Appellant’s post-trial motions which requested an arrest of judgment based upon the contention that the two assault charges merge into attempted rape. The trial judge, in his opinion, concludes that there is merger and that the assault sentences should be vacated. Because the question of legality of sentence is never waived, Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Lawton, 272 Pa.Super.Ct. 40, 414 A.2d 658 (1979), I believe the issue should be addressed.

Concerning the issue of merger:
“The true test of whether one criminal offense has merged into another. . . is whether one crime necessarily involves another, as for example, rape involves fornication, and robbery involves both assault and larceny. The ‘same transaction’ test is valid only when the ‘transaction’ means a single act. When the ‘transaction’ consists of two or more criminal acts, the fact that the two acts are ‘successive’ does not require the conclusion that they have merged. Two crimes may be successive steps in one crime and therefore merge, ... or they may be two distinct crimes which do not merge.’ Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 104-05, 21 A.2d 920, 921 (1941) (emphasis in original).”

Commonwealth v. Wojciechowski, 285 Pa.Super.Ct. 1, 8, 426 A.2d 674, 677 (1981).

It has been held that the crime of rape necessarily includes the crime of indecent assault. Commonwealth v. Richardson, 232 Pa.Super.Ct. 123, 334 A.2d 700 (1975).

Because the convictions for indecent assault and attempted rape were both based on the same sequence of events and facts, we should vacate the sentence on the lesser offense, indecent assault, as the two crimes merge.

The conviction for simple assault also merges into the conviction for attempted rape. See Commonwealth v. Irvin, 260 Pa.Super.Ct. 122, 393 A.2d 1042 (1978). The reasoning is that both the simple assault and attempted rape convictions were again based on the same sequence of events and facts. Therefore, we should vacate the sentence on the simple assault conviction.

POPOVICH, Judge,

concurring and dissenting:

I dissent from the majority’s determination that the appellant is not guilty of recklessly endangering another person.

In the instant case, we have an accounting of a 12 year old girl who was accosted in broad daylight by an adult male in front of her home. Appellant grabbed the child’s arm, restrained her movement, and carried her off into a nearby cellar. The assailant then ordered the child to prop herself up on a chair and, upon doing so, moved his hands under her skirt, up her leg, and touched her genital organs. Appellant thereafter started to remove his slacks. The victim reacted by kicking appellant in the groin, thus foiling his obvious intentions. Appellant retaliated by striking the child in the face.

Here, we have a situation in which: (1) an assault was made on the victim; (2) the assailant was larger and stronger than the victim; and (3) appellant was restrained from consummating and/or escalating his attack by the actions of a courageous 12 year old child. The assault plus the attendant circumstances, in this writer’s viewpoint, were sufficient to prove guilt of recklessly endangering another person. See e.g., Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887, 889 (1978) (“A simple assault combined with other circumstances may, in a proper case, be sufficient to support a finding that an assailant attempted to inflict serious bodily injury . . .”); Accord Commonwealth v. Kibe, 258 Pa.Super. 353, 392 A.2d 831 (1978).

Moreover, I must voice my disagreement with the majority’s conclusion that appellant was not guilty of recklessly endangering another person because “[w]e are unable to conclude that any of Moody’s actions, forcing Johnson into the basement, striking her while he attempted to leave the basement, or touching her body in a vulgar and offensive manner placed the [victim] in sufficient physical danger . . . . ” At 374. The majority’s argument ignores the language of the statute which states that an offense of recklessly endangering another person is committed where the actions of the accused “place[ ] or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705. (Emphasis added). To accept the majority’s conclusion that the victim was not “placed ... in sufficient physical danger”, at 374, is to minimize the actual and potential danger that this 12 year old was exposed to by this adult male’s repulsive actions.

Hence my dissent.

      . We note also that Moody was tried before the court without a jury. Therefore, any defects in the evidence presented the judge we would presume to have been disregarded. Commonwealth v. Navis, 491 Pa. 363, 421 A.2d 179 (1980). Moody has not argued that the trial judge was in any way prejudiced.

      . We take note of the fact that the trial judge had no jurisdiction to rule further in this case once the appeal had been filed. Pa.R.A.P. 1701(a), 42 Pa.C.S.A.; See Commonwealth v. Leatherbury, 269 Pa.Super.Ct. 194 n.4, 409 A.2d 431 n.4 (1979).


author: CERCONE, President Judge:

text:
    441 A.2d 377
    COMMONWEALTH of Pennsylvania, v. Joe E. BAILEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1981.
    Filed Feb. 5, 1982.

      David A. Martino, Bangor, for appellant.
    James F. Marsh, District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH and CAVANAUGH, JJ.
   CERCONE, President Judge:

This is an appeal from the Judgment of Sentence imposed on August 5, 1980. Appellant was found guilty of the summary offense of Immediate Notice of Accident by the District Justice. He appealed the conviction to the Court of Common Pleas of Monroe County. On August 5, 1980, a trial de novo was held. At the end of the trial, the trial judge found appellant guilty of the summary offense and fined him twenty-five dollars plus costs. Appellant then filed his appeal.

Although it appears that the sufficiency claim presented raised by appellant is possibly meritorious, the record indicates that appellant did not file post-verdict motions in compliance with Pa.R.Crim.P. 1123. See Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). Moreover, the record reveals that the trial court failed to comply with the requirements of Rule 1123(c) that a defendant be advised, after verdict, of his right to file post-verdict motions and of the consequences should he fail to do so. Instantly, the lower court merely found appellant guilty and entered judgment of sentence on the docket. Under these circumstances we conclude that appellant did not knowingly and intelligently waive his right to file post-verdict motions, and furthermore, that the appeal is premature at this point in time. Accordingly, we remand this case to the court below to allow appellant to file those motions nunc pro tunc. Commonwealth v. Getson, 291 Pa.Super. 632, 436 A.2d 679 (1981); Commonwealth v. Williams, 290 Pa.Super. 158, 434 A.2d 179 (1981); Commonwealth v. Koch, supra.

Judgment of sentence vacated and case remanded for proceedings consistent with this opinion.

      . 75 Pa.C.S.A. § 3746 (1977).


text:
    441 A.2d 379
    Joseph J. LABYODA, and Anna M. Labyoda, his Wife, Appellants, v. Donald STINE and Johanna Stine, his Wife.
    Superior Court of Pennsylvania.
    Argued April 30, 1981.
    Filed Feb. 5, 1982.

      William J. Murray, Pittsburgh, for appellants.
    Michael J. Seymour, Pittsburgh, for appellees.
    Before CERCONE, President Judge and BROSKY and HOFFMAN, JJ.
   CERCONE, President Judge:

This is an appeal from an order of the court en banc denying appellants’ exceptions and making final the chancellor’s decree nisi. We now reverse and remand for proceedings below not inconsistent with this opinion.

Appellants own a lot in Brentwood, Allegheny County, on which they had built a house. Appellees are the neighboring landowners, whose land lies approximately fifteen feet higher than appellants. Appellants filed a complaint in equity alleging damage to their property from large rocks, water and debris said to have come from appellees’ lot. They sought either an injunction from the alleged damage or the chancellor’s permission to enter upon appellees’ land to rectify the alleged source of the harm, i.e. a steep grade at the property line. The original chancellor, then a common pleas judge now a Justice on the Pennsylvania Supreme Court, Justice John P. Flaherty, granted a rule to show cause why a preliminary injunction should not issue and set a time for a hearing on the matter. Appellees filed no responsive pleading but appeared at the hearing with counsel. The chancellor viewed the property, took testimony and admitted evidence while at the site. Before the chancellor could adjudicate the matter he ascended to the Pennsylvania Supreme Court. A year and a half after the hearing, Judge Papadakos ordered the parties to file briefs prior to the case’s reassignment. Both sides filed briefs on January 16, 1980. Appellants contended in their brief that the court should order the case reassigned to permit a different chancellor to conduct a view and hearing similar to the one held earlier by now Justice Flaherty. Also on January 16, 1980, appellees filed their answer, new matter and counterclaim to appellants’ complaint of May 24,1978. Appellants answered the new matter and counterclaim on January 28, 1980, denying all the allegations contained therein and demanding strict proof at trial. Although the new chancellor, Judge Papadakos, did hear oral arguments he refused to rehear the case. In the opinion accompanying the decree nisi the chancellor stated the following:

. . .[Although a rehearing would normally be required before a successor Chancellor could make findings of fact, the record is complete and the facts essential for a determination of the issues are not in dispute. Accordingly, we will forego the necessity of a rehearing and adjudicate the issues on the present record, including briefs submitted by counsel.

The new chancellor went on to make findings of fact and conclusions of law and to enter a decree nisi denying appellants the relief they sought and granting appellees the relief they sought under the counterclaim. Appellants filed exceptions contending inter alia that the chancellor had erred in deciding the case on the record and briefs, and should have held a rehearing before making findings of fact and entering the decree nisi. The exceptions were denied and the decree nisi made final. This appeal followed.

It is clear from the state of the pleadings alone that the chancellor erred in concluding that the record before him was complete. When the hearing before the Judge, now Justice, Flaherty was held June 2, 1978 the court had before it only appellants’ complaint in equity. At the time of the hearing the appellees had not filed a counterclaim. Entirely lacking from the record, therefore, is any evidence as to the extent of damage to appellees’ property later alleged in their counterclaim. Certainly it could not accurately have been said that there remained no factual questions in dispute.

Our decision in this case is controlled by Hyman v. Borock, 211 Pa.Superior Ct. 126, 235 A.2d 621 (1967). The procedural posture of that case was almost identical to the posture of the instant case. There Judge Spaulding, late of this Court, was the hearing judge. Before he could decide the case he ascended to the bench of this Court. The president judge of the Philadelphia County Court consulted with Judge Spaulding and then entered a finding for the plaintiff. We reversed. Writing for a unanimous Court Judge Wright stated:

We symphathize with the desire of the distinguished President Judge of the court below to effect disposition of these cases without further delay. However, the parties did not agree to such disposition and counsel promptly objected thereto. New trials must therefore be granted. Cf. Cowsill v. Vipond Construction Co., 250 Pa. 32, 95 A. 317. We are clearly of the opinion that, in the absence of consent thereto, the substitution of another judge for the trial judge may not be approved where the testimony has been heard without a jury and the trial judge has not yet rendered a decision on the factual issues.

Id., 211 Pa.Super. at 128, 235 A.2d at 622. Likewise, in Ciaffoni v. Ford, 211 Pa.Superior Ct. 472, 237 A.2d 250 (1968), the lower court made a finding for the defendant which was set aside by the court en banc and the case reassigned to a different judge. The new judge relied on the record in the original hearing in reaching his decision, and he did so without the consent of the parties. Again we reversed, relying on Hyman v. Borock, as our authority. In both of those cases we disallowed a decision based on the record developed before a judge no longer sitting on the case where such a procedure was not consented to by the parties. In both cases there were factual questions still in dispute. Instantly, not only were there unresolved factual questions, but appellants have continually voiced their objection to the procedure followed herein. In light of Hyman v. Borock, supra, and Ciaffoni v. Ford, supra, we are constrained to reverse the decree of the lower court and remand the case for -proceedings below not inconsistent with this opinion. Our jurisdiction is relinquished.

Reversed and remanded.

      . Appellant has asserted several errors below, the merits of which we do not reach because of the disposition we make of the first assignment of error. Those assignments of error include questions as to whether the chancellor decreed a result outside the scope of the case, whether the appellees’ counterclaim was barred by laches, whether the chancellor erred in disregarding the recommendations of a court appointed engineer, and whether the court’s final decree erroneously “confirmed” the decree nisi.

      . Cf., Sherman v. Yoder, 59 Pa.Commonwealth Ct. 430, 430 A.2d 347 (1981). (Factual questions not present).