text:
    440 A.2d 591
    COMMONWEALTH of Pennsylvania v. Melvin STOKES, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1979.
    Filed Jan. 19, 1982.

      Richard J. Conn, 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:

Appellant was found guilty in the Municipal Court of Philadelphia,County, of possession of a controlled substance, possession of a controlled substance with the intent to deliver it, and several weapons offenses. On appeal to the Court of Common Pleas of Philadelphia County, Appellant on September 7, 1976, was again found guilty at a bench trial of the crimes involving controlled substances, but post trial, Appellant’s motion in arrest of judgment was granted as to the conviction of possession with the intent to deliver.

On the same day, Appellant was sentenced upon the conviction of simple possession to a term of imprisonment of not less than three nor more than twelve months. Appellant took no direct appeal, but on December 15, 1976 filed a pro se petition pursuant to the Post Conviction Hearing Act (“PCHA”). New counsel was appointed for Appellant and filed an amended PCHA petition. Both such petitions assert the ineffectiveness of Appellant’s trial counsel in several respects. More specifically, Appellant asserted in the PCHA petitions that (1) his privately retained counsel failed to appear to assist in Appellant’s defense at trial in the Municipal Court but rather dispatched an associate to represent Appellant who was unprepared and failed to produce certain items of physical evidence at the trial which were in counsel’s possession; (2) his counsel at trial in the Court of Common Pleas failed to produce the same physical evidence which would have “materially aided” Appellant in his defense; (3) his counsel at trial in the Court of Common Pleas failed to cross examine the arresting officers upon an asserted inconsistency between their testimony at trial in the Municipal Court and in the Court of Common Pleas; (4) his trial counsel failed to interview a witness who “may have been able to present exculpatory evidence”; and (5) counsel, contrary to Appellant’s expressed desire, failed to file a direct appeal following Appellant’s conviction in the Court of Common Pleas. Two evidentiary hearings were held upon the petitions and thereafter the hearing judge, by opinion and order, denied Appellant relief.

On appeal, Appellant raises five issues, again contending that his trial counsel was ineffective (1) in failing to file a direct appeal following Appellant’s conviction; (2) in failing to produce or introduce at trial exculpatory physical evidence in counsel’s possession; (3) in failing to produce an exculpatory witness, or asking for a continuance in order to produce such witness; and (4) in failing to properly cross-examine the arresting officers upon allegedly inconsistent testimony. In addition, Appellant asserts that his counsel was ineffective for not permitting Appellant to testify in his own defense at trial in the Court of Common Pleas.

As is apparent from our earlier recitation of the essential allegations contained in the two PCHA petitions, and our review of the petitions themselves, Appellant never alleged that trial counsel was ineffective for failing to call Appellant as a witness in his defense. Nor does the record of the PCHA evidentiary hearings reveal a single word of testimony or argument on the subject. Neither we nor our trial courts may consider issues not presented in properly filed PCHA petitions, Commonwealth v. Zillgitt, 489 Pa. 189, 413 A.2d 1078 (1980), and as the court below, we do not consider the issue.

It will also be recalled that Appellant asserted that his counsel was ineffective in failing to cross-examine the arresting officers upon alleged inconsistencies in their testimony as given at trial in the Municipal Court on the one hand, and at trial in the Court of Common Pleas on the other. Although this allegation appears in both PCHA petitions, Appellant offered no testimony, other evidence or argument concerning the matter at the PCHA hearings. The burden of establishing the grounds for PCHA relief is upon the petitioner, Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944, 945 (1981) quoting Commonwealth v. Logan, 468 Pa. 424, 433, 364 A.2d 266, 271 (1976), and the failure to present testimony or other evidence on the issue at an evidentiary hearing constitutes an abandonment of such grounds as a basis for relief. Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936, 937 (1981). Again, we do not consider the issue.

Appellant has preserved the three remaining issues and we shall examine them in turn.

(1)

Appellant contends that immediately following his conviction, he asked his trial counsel to file a direct appeal, and counsel agreed to do so. Nevertheless, Appellant continues, trial counsel failed to file an appeal. At the PCHA hearings, Appellant testified that it was essential that an appeal be filed as the conviction constituted a violation of federal parole which, if parole were revoked, would and apparently did subject Appellant to further incarceration in a federal institution.

At the evidentiary hearings, trial counsel, in response to questions on the subject by Appellant’s PCHA counsel, summarized his contrary recollection of the event:

“Q[BY PCHA COUNSEL]
And sir, did you or Mr. Stokes discuss taking an appeal from Judge Jenkins’ ruling?
[BY APPELLANT’S TRIAL COUNSEL]
A Well, I must explain to you what occurred in Judge Jenkins’ courtroom on that day. The matter was tried before Judge Jenkins on a waiver of a jury trial. A police officer testified, he was cross-examined. Thereafter Judge Jenkins adjudicated the defendant guilty of two counts of possession with intent to deliver and manufacture a controlled substance, to wit, heroin and also possession.
Q Was that methamphetamine?
A Yes, Schedule II, I’m sorry. Thereafter I orally argued before the Court a Motion for new trial and arrest of judgment. The Court granted a Motion on [sic] arrest of judgment as to the count concerning the possession with intent to deliver and as to the count concerning possession the Court denied our Motion either for a new trial or arrest of judgment. The Judge then sentenced Mr. Stokes to a period of incarceration of three months to twenty-three months and he was given credit for time served. Thereafter his appellate rights were given to him and thereafter I had a discussion with Mr. Stokes at the side of the courtroom. At the time we had discussed what avenue we should pursue and I informed him that the result seemed to be unlikely under the circumstances and that his matter with the Federal Parole Board, as he told me, could probably be resolved if, and only if, the matter was a guilty of possession only. We accomplished that result and thereafter—he seemed to be pleased—and thereafter we did nothing further.
Q Sir, I believe it’s a matter of record that Mr. Stokes received a sentence of six to twenty-three months before you argued the post-trial Motions before Judge Jenkins.
A And it was reduced from six to twenty-three to three to twelve after the arrest of judgment was granted. Whatever the Record indicates—I know in my judgment after speaking with Mr. Stokes he seemed to be exceptionally pleased with the result because he said he could handle the matter before the Federal Parole Board without any difficulty whatsoever." (N.T. 6-8, 5/24/78) (emphasis added.)

Addressing the issue of credibility, the hearing judge said in his Opinion:

“We find the testimony of the defendant to be not credible or worthy of belief. On the contrary, we find the testimony of Mr. Tinari [trial counsel] to be extremely credible. We are convinced and find as a fact that the defendant knowingly and voluntarily waived his appellate rights after he was advised of those rights by Judge Jenkins on the record. We, therefore, conclude as a matter of law that such a waiver was valid.” Opinion of the lower court at 5.

In our approach to the issue before us, we are reminded that when reviewing the PCHA court's determination, our task is not to engage in a de novo evaluation of the testimony presented. As we said in Commonwealth v. Stanton, 294 Pa.Super. 516, 440 A.2d 585 (1981):

“Rather, we look to whether the Appellant’s PCHA court’s determination is supported by evidence of record and is otherwise free of legal error. Commonwealth v. Lutz, [492] Pa. [500], 424 A.2d 1302 (1981).
And in Commonwealth v. Edwards, [273] Pa.Super. [351], [356-7] 417 A.2d 685, 687 (1979), we quoted from Commonwealth v. Lee, 478 Pa. 70, 75, 385 A.2d 1317, 1320 (1978) (which in turn quoted Commonwealth v. Sullivan, 472 Pa. 129, 145, 371 A.2d 468, 476 (1977)):
‘The findings of the PCHA court, which hears the evidence and passes on the credibility of the witnesses, should be given great deference. See Commonwealth v. Smith, 454 Pa. 256, 312 A.2d 396 (1973); Commonwealth v. Minnick, 432 Pa. 462, 247 A.2d 569 (1968). Consequently, this Court will not disturb its findings if they are supported in the PCHA record. See Commonwealth v. Hau-ser, 450 Pa. 388, 299 A.2d 218 (1973); Commonwealth v. Tabb, 433 Pa. 204, 249 A.2d 546 (1968); Commonwealth v. Minnick, supra. This is true even when the record could support a contrary holding . . . [citation omitted].’ ”

It is beyond cavil that a defendant has an absolute right to appeal, Pa.Const. art. V, sec. 9, and the ultimate decision of whether to do so must be made by the defendant and not counsel. Commonwealth v. Hertzog, 492 Pa. 630-32, 425 A.2d 329-33 (1981) (collects cases); Commonwealth v. Wilkinson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980). At the same time, it is well settled that a defendant may waive the right to appeal, provided such waiver is a “knowing and intelligent” act on the part of a defendant. Commonwealth v. Mika, 277 Pa.Super. 339, 419 A.2d 1172, 1173 (1980).

The record before us clearly supports the finding of the lower court that Appellant, with a full understanding of his right to appeal, deliberately waived that right. The trial judge, following his announcement of the verdict, fully informed Appellant of his right to appeal. Appellant does not contend that he failed to comprehend such right. Appellant’s trial counsel, as we have observed, testified that he also discussed Appellant’s appellate rights with Appellant, and that in light of the court’s arresting judgment on the conviction for possession with the intent to deliver a controlled substance, Appellant seemed “exceptionally pleased with the result”. Counsel also recalled discussing with Appellant the impact of the remaining conviction upon Appellant’s federal parole. Counsel recalled that he was advised by Appellant that he “could handle the matter before the Federal Parole Board without any difficulty whatsoever”. Finally, counsel could recall no request on the part of Appellant to file an appeal. It is again observed that the hearing judge fully credited counsel’s testimony and the record supports such finding. We discern no reason to disturb that finding on appeal.

(2)

Appellant next contends that his trial counsel was ineffective in failing to introduce at trial three pieces of physical evidence previously furnished to counsel by Appellant.

Our review of this issue is of course controlled by Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), and in accordance with the standard set forth therein, our inquiry ceases and counsel is deemed to have been effective once the court is able to conclude that counsel’s actions had a reasonable basis designed to effectuate his client’s interests. Commonwealth v. Butler, 495 Pa. 82, 86, 432 A.2d 590, 592 (1981).

The facts underlying Appellant’s contention are easily summarized. Following a search of the premises pursuant to a warrant, Appellant was apprehended by police in a second- floor apartment at 2402 North 29th Street in Philadelphia, and charged with the instant crimes involving a controlled substance. During the search of a bedroom in the apartment, the police came upon a closet secured by a large lock. At the request of the officers, Appellant withdrew a key from his person and unlocked the closet. A search of the closet revealed the presence of a metal container in which the police found plastic packets containing a substance later determined to be methamphetamines, and a “medical card”, addressed to Appellant. The police also confiscated the sum of $890.00 in currency from Appellant’s person. Prior to leaving the premises in police custody, Appellant not then fully dressed, put on shoes, socks and a jacket obtained from the bedroom.

As the controlled substance was not found upon Appellant’s person, it was of course incumbent upon the Commonwealth to prove constructive possession on the part of Appellant. Commonwealth v. Gill, 490 Pa. 1, 415 A.2d 2 (1980); Commonwealth v. Hoetzel, 284 Pa.Super. 623, 426 A.2d 669 (1981). Apparently addressing that issue during a pre-trial conference with trial counsel, Appellant testified at the evidentiary hearings that he told counsel he did not reside at the apartment in which he was apprehended but was merely a visitor. When questioned by counsel concerning the source of the $890.00 found by the police upon Appellant’s person, he testified that he told counsel that approximately half that sum had been withdrawn from his bank account by his mother, the said sum having been received earlier by Appellant as a grant-in-aid for his education.

Appellant also testified that he advised counsel that he could produce a rental receipt book to substantiate his address, and a bank passbook to verify the cash withdrawal, along with a receipt from a governmental agency attesting to the grant. Appellant ultimately gave these documents to counsel prior to trial. At trial, Appellant’s counsel rested at the conclusion of the Commonwealth’s case, offering no testimony or other evidence in Appellant’s defense. The proposed physical exhibits were not introduced or referred to at trial.

Trial counsel testified at the PCHA evidentiary hearings that the bank passbook and the receipt for the grant in aid were in his view irrelevant in light of the ultimate disposition of the charge of possession with the intent to deliver. Counsel also testified that in the course of an interview, Appellant told him that he indeed resided at the premises where he was arrested, and that the rental receipt book confirmed that statement. Counsel further testified that he was aware that shortly after Appellant’s arrest, Appellant had advised a bail agency that he resided at those premises. Accordingly, counsel testified, the use of the rental receipt book at trial would have seriously damaged the defense. The lower court credited counsel’s version of the events and the record supports such findings.

It is obvious that the use of the rental receipt book by the defense at trial, connecting Appellant as it did to the premises where the controlled substances were found, would have been an absurd act. The issue is patently without arguable merit. Commonwealth v. Butler, supra; Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Although the use at trial of the bank passbook and grant receipt might well have assisted in dispelling any inferences arising from the discovery of $890.00 in cash upon Appellant’s person, we agree with counsel and the lower court that this prospective evidence was relevant, if at all, to the charge of possession with intent to deliver alone. As judgment was arrested upon Appellant’s conviction of that charge, we find the issue moot and certainly not a basis upon which to grant relief.

(8)

Appellant lastly contends that trial counsel was ineffective for failing to secure the presence of a witness, one Judy Hoyle, or to request a continuance in order to gain the time necessary to obtain the presence of the witness.

At the time of Appellant’s arrest, Ms. Hoyle was also in the apartment. At the evidentiary hearings, Appellant’s only reference to the nature of Ms. Hoyle’s proposed testimony or assistance in the defense was this, in its entirety:

“Q. [BY THE ASSISTANT DISTRICT ATTORNEY] Do you think Ms. Hoyle would have helped your case in any way?

A. [BY APPELLANT] I believe so.” (N.T. 40, 5/3/78.)

As we said in Commonwealth v. Charleston, 251 Pa.Super. 311, 316-7, 380 A.2d 795, 797 (1977) and reiterated in Commonwealth v. Rhodes, 272 Pa. Super. 546, 554-5, 416 A.2d 1031, 1035 (1979), the failure to call a possible witness will not be equated with a conclusion of ineffectiveness absent some positive demonstration that the testimony would have been helpful to the defense. Appellant’s single reference to Ms. Hoyle’s prospective assistance is hardly a “positive demonstration” that her testimony would have been helpful to Appellant’s defense, and we will not find counsel to have been ineffective for the failure to produce her.

Of similar significance, however, is the simple fact that Ms. Hoyle could not be found. The record reveals that at some point during preparation for trial, Appellant gave his trial counsel Ms. Hoyle’s name and “approximate” address. At the evidentiary hearings, Appellant, in response to questions by the Assistant District Attorney, tells it best:

“Q. Isn’t it true that you were out on the street from March to July 22, 1976?
A. Yes.
Q. Did you speak to Miss Hoyle between March and July of ’76?
A. No, I didn’t.
Q. You didn’t speak to her at all?
A. We couldn’t find her.
Q. Who is we?
A. Me and Mr. Tinari’s [Trial Counsel] office.
Q. So Mr. Tinari tried to locate Miss Hoyle?
A. Right.
Q. He couldn’t find Miss Hoyle?
A. Right.
Q. You tried to locate Miss Hoyle—
A. Right.
Q. —but you couldn’t find Miss Hoyle; is that true?
A. The answer to that question is she didn’t live at the address that I knew at the time.
Q. So you couldn’t find her at all?
A. Right.” (N.T. 40-41, 5/3/78.)

Trial counsel testified to his fruitless efforts to find Ms. Hoyle, as well.

It is correct to note, as does Appellant, that the absence of a witness may well form a basis for a continuance, and counsel’s failure to seek such relief may in a given case constitute ineffectiveness. Commonwealth v. Stiefel, 286 Pa.Super. 259, 428 A.2d 981 (1981). At bar, however, not only is the nature of Ms. Hoyle’s proposed testimony unknown, but there is not the slightest indication in the record that she would or could ever be found. Under such circumstances, a court could quite properly refuse to grant a continuance. Commonwealth v. Plath, 267 Pa.Super. 1, 405 A.2d 1273 (1979). And see Commonwealth v. Franks, 271 Pa.Super. 278, 413 A.2d 404 (1979); Commonwealth v. Mallon, 279 Pa. Super. 350, 421 A.2d 234 (1980).

In sum, there is no indication in the case before us that a more intensive search on the part of counsel would have produced Ms. Hoyle, or that the additional time a continuance might have gained would have in any respect been useful. A finding of ineffectiveness can never be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized. Com. ex rel. Washington v. Maroney, supra. In light of the record before us, we simply cannot reach such a conclusion here and we must reject Appellant’s contention that the failure to produce Ms. Hoyle or request a continuance constituted ineffective assistance of counsel. Cf. Commonwealth v. Bandy, 494 Pa. 244, 431 A.2d 240 (1981).

Affirmed.

      . Prior to trial in the Court of Common Pleas, the criminal informa-tions charging Appellant with the weapons offenses were quashed.

      . Act of January 25, 1966, P.L. (1965) 1580, §§ 1, et seq., 19 P.S. § 1180-1, et seq. (Supp.1965-1980).

      . The American Bar Association Standards Relating to the Administration of Criminal Justice (Criminal Appeals) provide:
      “[CJounsel has the professional duty to give to the client fully and forcefully an opinion concerning the case and its probable outcome. Counsel’s role, however, is to advise. The decision is made by the client.” Std. 21-3.2 Commentary (2d ed. 1978).

      . A “knowing and intelligent” waiver has been defined as “an intentional relinquishment or abandonment of a known right or privilege”. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1968); Commonwealth v. Mallon, 279 Pa.Super. 350, 358 n. 11, 421 A.2d 234, 238 n.11.

      . Although Appellant, in his amended PCHA petition asserts that his trial counsel was ineffective in failing to file a direct appeal, it is apparent that Appellant is actually contending that as counsel did not follow Appellant’s instructions to file an appeal, Appellant cannot be found to have waived his right to appeal. The right to collateral relief under the PCHA is precluded where the complaint sought to be raised by a petitioner has been waived. Section 3(d) of the PCHA, 19 P.S. § 1180-3(d) (Supp. 1965-1980). Thus, if there has been an effective waiver, the review process is terminated. Commonwealth v. Jumper, 494 Pa. 451, 453, 431 A.2d 941, 942 (1981). So it is at bar.

      . See, Commonwealth v. Hill, 236 Pa.Super. 572, 346 A.2d 314 (1975); Commonwealth v. Walley, 225 Pa.Super. 465, 310 A.2d 381 (1973).

      . It must also be pointed out that the Commonwealth’s case with respect to Appellant’s alleged constructive possession of the controlled substance was overwhelming without regard to the cash found upon Appellant’s person.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    440 A.2d 598
    Elizabeth D. DONLIN and Leo A. Donlin, her husband v. J. J. NEWBERRY CO. and McCrory Corp., Appellants.
    Superior Court of Pennsylvania.
    Argued June 1, 1981.
    Filed Jan. 19, 1982.
    Richard A. Gray, Williamsport, for appellants.
    Michael J. DiSisti, Williamsport, for appellees.
    Before McEWEN, MONTEMURO and SHERTZ , JJ.

       SHERTZ, J., did not participate in the consideration or decision of this case.

   PER CURIAM:

This is an appeal from an order denying a motion for new trial and judgment n. o. v. In light of the fact that the order has not been reduced to judgment and docketed, we cannot consider the merits of appellants’ contentions. “An order denying a motion for a new trial . . . does not constitute an appealable order.” Pa.R.A.P. 301(c). Therefore, this appeal is premature and must be quashed. Slagter v. Mix, 441 Pa. 272, 272 A.2d 885 (1971); Richard v. Chester Extended Care Center, 287 Pa.Super. 289, 430 A.2d 290 (1981); Brogley v. Chambersburg Engineering Co., 283 Pa. Super. 562, 424 A.2d 952 (1981).

The appeal is quashed.

      . Neither appellants nor appellee filed a praecipe that the lower court’s order should be reduced to judgment and docketed.


author: HESTER, Judge:

text:
    440 A.2d 599
    COMMONWEALTH of Pennsylvania, v. Richard A. MERCER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1981.
    Filed Jan. 22, 1982.

      Richard W. Berlinger, Glenside, for appellant.
    Richard E. Reilly, King of Prussia, for Commonwealth, appellee.
    Before HESTER, POPOVICH and Di SALLE , JJ.

       Decision was rendered prior to Di SALLE, J. leaving the bench of the Superior Court of Pennsylvania.

   HESTER, Judge:

This is an appeal from a judgment of sentence and a fine of $3,900.00 imposed upon the appellant, following a finding that the appellant was guilty of operating a vehicle exceeding the maximum permissible weights prescribed by the Pennsylvania Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81, as amended, 75 Pa.C.S.A. Section 4941 et seq. Appellant was originally found guilty of this summary offense before a District Magistrate, which was affirmed, following a de novo hearing before the Court of Common Pleas of Montgomery County.

On January 16, 1980 at 11:55 a. m., Officer John R. Golbreski, a patrolman of the Upper Merion Township Police Department, observed the appellant operating a GMC truck tractor with a Fontaine trailer proceeding Eastbound on the Schuylkill Expressway (Interstate 76). According to Officer Golbreski, the tractor was straining, and the tires of the trailer were “ballooning”. Officer Golbreski stopped the tractor-trailer on Interstate 76, Eastbound lane, hear the Route 202 exit.

Upon request, appellant furnished Officer Golbreski his bill of lading, which indicated that appellant was hauling a lo.ad weighing 58,800 pounds. Appellant was hauling this load, as an independent contractor, for Kreitz Motor Express, a specialized carrier of oversized loads by motor truck. Appellant’s trip was from Penn Iron Works in Reading to Warner Swazey Company in King of Prussia. Appellant was paid approximately $300.00 for this trip.

It is undisputed that the load included four pieces of heavy equipment, which were apparently unfinished parts of furnaces known as weldments.

Officer Golbreski directed appellant to follow him to the Township scales where the vehicle was weighed. It is undisputed that the gross weight of the vehicle was 88,340 pounds. On the basis of this weighing, Officer Golbreski issued a citation assessing a fine of $3,900.00 pursuant to the Vehicle Code, 75 Pa.C.S.A. Section 4945(a).

On the day following the issuance of the citation, Kreitz Motor Express produced a permit for appellant’s load which purported to authorize the operation of the vehicle at a weight of 90,000 pounds. It is undisputed that said permit was improperly issued, or was issued on the basis of false information, due to the fact that the load in question was divisible. Under the circumstances relevant to this case, the Vehicle Code authorizes a special permit for hauling a load in excess of the maximum weight requirement only if the load is “non divisible”. 75 Pa.C.S.A. Section 4961(a)(2). It is also undisputed that the appellant did not comply with the Vehicle Code, 75 Pa.C.S.A. Section 4962(b), which states, “Display of permit—Every permit shall be carried in the towing vehicle and shall be open to inspection by any police officer or authorized agent of the issuing agency or any person having an accident involving a permitted vehicle or combination.”

Appellant contends that, due to the fact that a special permit had been issued to Kreitz, authorizing a weight up to 90,000 pounds, Subchapter C of Chapter 49 of the Vehicle Code, 75 Pa.C.S.A. Section 4941 et seq., is inapplicable. Appellant admits violating Subchapter D of Chapter 49 of the Vehicle Code, 75 Pa.C.S.A. Section 4961 et seq., since the load in question was divisible and since he did not carry the permit at the time he was stopped by Officer Golbreski.

Appellant further argues that the penalties for exceeding maximum weights, specified by Subchapter C of Chapter 49 of the Code, 75 Pa.C.S.A. Section 4945(a), are not applicable to his offense, since a special permit had been issued pursuant to Subchapter D of Chapter 49. Appellant urges that the fine for his offense is controlled by 75 Pa.C.S.A. Section 4907 which states:

“Any person violating any provision of this chapter [Chapter 49, SIZE, WEIGHT, AND LOAD] for which a penalty is not otherwise provided is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of not less than $50.00 nor more than $100.00.” We disagree.

The permit in question authorized the transportation of “a furnace” up to a maximum weight of 90,000 pounds. “A furnace” would presumably be a non-divisible load, for which the issuance of a special permit is authorized by the Vehicle Code, 75 Pa.C.S.A. 4961(a)(2). Since the load in question was admittedly a divisible load of four separate components, the permit in question was invalid ab initio, since there is no statutory authority for its issuance.

Since the permit in question was invalid, the appellant was properly fined pursuant to 75 Pa.C.S.A. Section 4945(a) for operating a vehicle or combination exceeding the maximum gross weight without a valid permit.

Since the permit was invalid, appellant’s offense constitutes a safety violation, rather than a registration violation. Commonwealth v. Smith, 409 Pa. 521, 187 A.2d 267, 270 (1963); Commonwealth v. Dunn, 478 Pa. 35, 385 A.2d 1299, 1307 (1978); Commonwealth v. Tirpak, 271 Pa.Super. 357, 413 A.2d 705, 707 (1979).

Appellant also contends that the fine of $3,900.00 is confiscatory under the circumstances. Appellant admitted at trial that he had no idea how much weight he was carrying until Officer Golbreski weighed him at the township scale. We find that the fine in question is a proper exercise of the police power of the Commonwealth, to preserve the safety of the travelling public and to maintain the roads of the Commonwealth in a suitable condition. The load in question could have, and should have, been transported in two separate loads. The fact that it was not constitutes a violation of Chapter 49, Subchapter C of the Vehicle Code, 75 Pa.C.S.A. Section 4941 et seq. Smith, supra.

Appellant also contests whether Officer Golbreski had probable cause to stop him and whether Officer Golbreski, a township police officer, has the authority or jurisdiction to arrest him on a ramp of Interstate 76.

It is undisputed that the appellant was arrested within the territorial limits of Upper Merion Township.

The Vehicle Code, 75 Pa.C.S.A. Section 4981(a) states:
“Any police officer is authorized to require the driver of any vehicle or combination to stop and submit the vehicle or combination to be measured and weighed. . . . ”
The Vehicle Code, 75 Pa.C.S.A. Section 6109(a) also states:
“The provisions of this title [Title 75] shall not be deemed to prevent the department on State-designated highways and local authorities on streets or highways within their physical boundaries from the reasonable exercise of their police powers.”
(Emphasis supplied).

Under the circumstances, Officer Golbreski’s conduct represents a reasonable exercise of the police power of the township, in avoiding a safety hazard to the travelling public, in protecting township roads and in enforcing the laws of the Commonwealth of Pennsylvania.

Officer Golbreski testified “the vehicle was straining, the tires ballooning.”

Under these circumstances, he had probable cause to stop the truck and require that it be weighed. Commonwealth v. Caporiccio, 210 Pa.Super. 230, 232 A.2d 42 (1967); Commonwealth v. Mentz, 3 D. & C.3d 257 (1975).

Judgment of sentence affirmed.

      . The permit in question was apparently secured from the Pennsylvania Department of Transportation as a result of information conveyed to the Department via telephone. While not passing judgment on this lenient practice, under these circumstances, the permitee would have the burden of establishing that the correct information was conveyed to the Department and that the issuance of the permit is authorized by the Vehicle Code.

      . We do not reach the issue whether the failure to display a valid permit in violation of 75 Pa.C.S.A. Section 4962(b), under other circumstances, would solely compel the invalidation of the permit.

      . Appellant also testified that he was aware that the maximum permitted weight of his truck, trailer and merchandise was 73,280 pounds without a permit. He also estimated that the weight of the truck and trailer was approximately 30,000 pounds. The bill of lading which appellant supplied to Officer Golbreski showed that the weight of his load was 58,800 pounds. Therefore, with any degree of diligence, appellant should have required a special permit before agreeing to carry the load.


author: BECK, Judge:

text:
    440 A.2d 602
    COMMONWEALTH of Pennsylvania, v. Christina LOBEL, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1981.
    Filed Jan. 22, 1982.
    Petition for Allowance of Appeal Denied July 19, 1982.

      Donald G. Joel, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and BECK, JJ.

      . Appellant alleges that the trial court erred in refusing to grant her demurrer at the close of the Commonwealth’s case in chief because the Commonwealth failed to prove the absence of retraction. Since defendant presented evidence in her defense, she can not now challenge the ruling on her demurrer. See: Commonwealth v. Mastrangelo, 489 Pa. 254, 264, 414 A.2d 54 (1980), appeal dismissed Mastrangelo v. Pennsylvania, 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980).

   BECK, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, by the appellant, Christina Lobel, after conviction by a jury of perjury and false swearing in official matters, and from the denial of post-trial motions. She was sentenced to concurrent terms of imprisonment of three to twenty-three months for her three perjury convictions.

The charges arose from false testimony appellant provided on April 20, 1978 to a Special Investigative Grand Júry inquiring into fraudulent charity solicitations in Philadelphia County ostensibly aiding handicapped children.

Appellant was asked before that grand jury whether she had conducted cannister solicitations on March 24, April 1, April 8 and April 15, 1978 at four different shopping malls. She denied having been at the described locations on the above dates. Appellant subsequently received a message from the Philadelphia Police Department asking her to meet with detectives about her grand jury testimony. On April 25, 1978, appellant met with Detective DiGiacomo and the assistant district attorney assigned to the grand jury. She was shown photographs in which she was holding cannisters at the shopping malls on the dates asked about in the above proceedings. She admitted that it was she who was depicted in the photographs and admitted the falsity of her previous testimony. On April 28, 1978, Detective DiGiacomo testified before the grand jury that he had observed appellant soliciting at those shopping malls and presented the photographs. The grand jury subsequently recommended that charges of perjury and false swearing be brought against appellant, and she was indicted on those charges.

Appellant claims that the Commonwealth was required to present evidence of the absence of a retraction— this being an element of the offense of perjury which must be proved beyond a reasonable doubt by the Commonwealth. This claim is without merit. The absence of retraction is not an element of the offense of perjury. The language of 18 Pa.C.S.A. 4902(a) which defines the offense of perjury does not include the absence of retraction as one of its elements.

A person is guilty of perjury, a felony of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true.

See: Commonwealth v. Broughton, 257 Pa.Super. 369, 390 A.2d 1282 (1978); Commonwealth v. Yanni, 208 Pa.Super. 191, 222 A.2d 617, 619 (1966).

It is instructive to analogize the retraction provision contained in 18 Pa.C.S.A. 4902(d) to the recantation provision in 18 U.S.C.A. 1623(d). The' language of those provisions is virtually identical:

No person shall be guilty of an offense under this section if he retracted the falsification in the course of the proceeding in which it was made before it became manifest that the falsification was or would be exposed and before the falsification substantially affected the proceeding. 18 Pa.C.S.A. 4902(d).
Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section, if at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed. 18 U.S.C.A. 1623(d).

The District of Columbia Circuit Court of Appeals, in United States v. Moore, 613 F.2d 1029 (D.C.Cir.1979), cert. denied, Moore v. U. S., 446 U.S. 954, 100 S.Ct. 2922, 64 L.Ed.2d 811 (1980), in construing 18 U.S.C.A. 1623(d), held that since declarant realized that government officials knew he had perjured himself before the grand jury, his subsequent recantation defense was ineffective. In that case, declarant was confronted with a tape recording which established the falsity of his grand jury testimony. The Court held that the legislators intended that the recantation provision only be available in a perjury case when two conditions are met:

We conclude that Congress did not countenance in Section 1623(d) the flagrant injustice that would result if a witness is permitted to lie to a judicial tribunal and then, upon only learning that he had been discovered, grudgingly to recant in order to bar prosecution. It has been held implicitly that the recantation provision is available to perjurers only if their previous false testimony has not substantially affected the proceeding and it has not become manifest that the falsity has been or will be exposed. We share that view unreservedly, and hold that the case at bar does not fall within the intendment of Section 1623(d). Id. at 1043. (footnote deleted).

That Moore court stated that when a statute contains an exception that does not describe the crime but rather rescues conduct otherwise proscribed, the burden rests with the accused to establish that his conduct fell within the bounds of that exception. We find that reasoning to be persuasive and conclude that appellant failed to meet her burden:

To be sure, as a matter of due process, the burden is upon the Government to prove beyond a reasonable doubt every essential element of offenses it charges. But when a statute sets forth a proviso which is not descriptive of the crime, but which operates to exempt conduct otherwise intercepted from the toils of the law, the burden is upon the accused to bring himself within its protection. Id. at 1044. (footnote deleted).

Also, it is clear from the language of 18 Pa.C.S.A. 4902(d) that in the instant case no valid retraction occurred. The fact that appellant only admitted the falsity of her grand jury responses five days after she made the sworn statements and after she was confronted with photographs demonstrating the falsity of her statements vitiates any argument she might have had relative to the validity of her retraction. Her perjured testimony was not retracted before it became apparent that it would be exposed.

Appellant next contends that the trial court committed reversible error in limiting appellant’s cross-examination of Detective DiGiacomo. The detective testified very narrowly about his surveillance of defendant conducting cannister solicitations at different shopping malls to show the falsity of defendant’s grand jury testimony. She attempted to cross-examine the detective on matters significantly outside the ambit of the direct testimony relative to a meeting the two of them had several days after the grand jury testimony. The question here involves a choice between the two theories of cross-examination: “wide open” versus “restrictive.” It is the restrictive view that is prescribed under 611(b) of the Federal Rules of Evidence which states that the judge may limit cross-examination with respect to matters not testified to on direct examination. The notion of wide open cross-examination is not subscribed to in this Commonwealth. That view holds that the cross-examiner is free to ask about any subject relevant to any issue in the case. In this Commonwealth, cross-examination is ordinarily limited to matters brought out on direct examination, except where the examiner is seeking to show bias. See: Commonwealth v. Ervin, 262 Pa.Super. 322, 396 A.2d 776 (1978); Commonwealth v. Ransom, 240 Pa.Super. 92, 360 A.2d 721 (1976); Commonwealth v. Marker, 231 Pa.Super. 471, 331 A.2d 883 (1974); Commonwealth v. Salerno, 179 Pa.Super. 13, 116 A.2d 87 (1955).

Commonwealth v. Schmidt, 437 Pa. 563, 569, 263 A.2d 382 (1970), is instructive in pinpointing the proper role of cross-examination. In that case, the appellant alleged that the trial court committed reversible error in limiting the scope of cross-examination of a Commonwealth witness. The Supreme Court held it to be within the discretion of the trial court and held that such a decision will not be reversed absent a showing of clear abuse. When the obvious purpose of cross-examination is to develop defendant’s own case, a ruling by the trial judge to limit cross-examination is not an abuse of discretion. See also: Commonwealth v. Fencez, 226 Pa. 114, 117, 75 A. 19 (1910).

It is clear, though, that the appellant was not precluded from questioning the detective about a meeting the two of them had several days after the grand jury testimony. The restrictive view under which the trial judge operated merely forced her to delay that line of questioning until her turn to offer proof of her retraction. While waiting until the prosecution finished its case might prove less effective as a trial tactic, labelling the trial judge’s behavior in requiring such a delay reversible error, however, would be folly. It is clear, also, that the detective had no privilege not to be called as a witness by the cross-examiner. Indeed, appellant called the detective to testify about her alleged retraction; the Commonwealth then presented evidence through cross-examination of the detective suggesting that appellant had not retracted her perjured testimony.

The most important consideration here is that appellant’s opportunity to present her defense through Detective DiGia-como was not precluded. This witness for the prosecution had knowledge which was material, but not helpful, to the defense; the defendant called that witness in presenting her own case, but the jury determined from his testimony that there had been no retraction.

Appellant next contends that reversible error was committed by the trial judge in charging the jury thusly:

If you find the defendant retracted her statement only after she was advised that her statements were known to be false, then you may say that the retraction was not made before it became manifest that the falsification was or would be exposed.

Appellant claims evidence of the falsity of her statements to the grand jury had to be presented to the grand jury prior to her retraction in order to vitiate the power of that retraction. It appears that appellant’s error is premised simply upon a misreading of § 4902(d). That section does not require exposure of falsehood to the tribunal; mere exposure to the defendant is sufficient. Any subsequent retraction by the defendant should be construed as not having been made before it became manifest that the falsification would be exposed.

It seems pure sophistry on appellant’s part to pose the question of whether she, in light of her limited education, was aware at the time of her retraction that the photos would be exposed to the grand jury. The facts indicate that she retracted immediately upon being informed by the detective of the surveillance. Logic dictates that it was the fear of some reprisal for her discovered untruth that precipitated her admission.

Appellant next claims that the trial court erred in ruling as a matter of law that the three falsifications were material. In doing so, she misconstrues 18 Pa.C.S.A. 4902(b):

Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding.

Appellant asserts that there was no proof at trial that her misstatements had substantially affected the course of the grand jury proceedings and therefore those statements were immaterial. This analysis ignores the thrust of § 4902(b) which states that the question whether the misstatements affected the proceedings is itself immaterial. That it theoretically could have affected the outcome is sufficient. See: Commonwealth v. Lafferty, 276 Pa.Super. 400, 419 A.2d 518, 521-522 (1980).

Appellant is incorrect in concluding that her perjury was immaterial because the grand jury continued its investigation for a period of over two months after she testified. Many inferences can be drawn from the continued investigation, the least plausible of which is that appellant’s testimony was immaterial. Appellant falsely denied that she ever engaged in cannister solicitations. That this “could have” slowed or thwarted entirely the investigation into her association with Bishop Candelori is self-evident. Because the investigation continued after she made her false statements is not evidence that her statements were immaterial and did not “affect the proceedings.” The statute only requires that her statements “could have affected the course or outcome of the proceeding.” Appellant nowhere argues that her false statement could not have affected the course or outcome of the proceeding.

Section 241.1 of the Model Penal Code concludes that some falsifications are so trivial that they could not realistically affect the proceedings. It appears that appellant’s misstatement went to the very heart of the scheme being investigated and standing alone could have blocked the entire investigation.

Appellant argues that the trial court erred in allowing the Commonwealth to amend two Bills of Information. Specifically added were the numeral “1” to a date and “East” to the name of a shopping mall. Appellant’s claim is without merit. Under Pa.R.Crim.P. Rule 229, such amendment is allowed if it does not charge an additional or different offense. Commonwealth v. Fladger, 263 Pa.Super. 538, 398 A.2d 707, 708 (1979), held that amending bills of information regarding dates of offenses is not error. See also: Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166, 1175 (1979).

Finally, appellant contends that the trial court erred in charging the jury that it must find that appellant “effectively” retracted her testimony before she could avail herself of that defense. Commonwealth v. Reynolds, 256 Pa.Super. 259, 277, 389 A.2d 1113 (1978), held that the charge must be upheld if it adequately and accurately reflects the law and is sufficient to guide the jury.

The instruction on “effective” retraction tracked directly the language of 18 Pa.C.S.A. 4902(d) in addition to § 15.-4902A of the Pennsylvania Standard Jury Instructions and § 241.1(4) of the Model Penal Code. As a correct statement of law, the above charge did not constitute reversible error.

Accordingly, judgment of sentence is affirmed.

      . Appellant alleges that the trial court erred in refusing to admit into evidence the second presentment of the grand jury. Appellant wished to offer that report to show that more than two months after she perjured herself, the investigation was still in progress. She concludes that this renders her falsehoods immaterial in that they did not “affect the proceedings.” Again, the logic of her conclusion is based upon a misconstruing of § 4902(b). Also, this claim had been waived as counsel abandoned the issue after the trial judge noted that the fact counsel was attempting to prove had already been established by prior testimony.

      . The Pennsylvania perjury provision, 18 Pa.C.S.A. 4902, uses precisely the same wording as § 241.1 of the Model Penal Code.


author: MONTGOMERY, Judge:

text:
    440 A.2d 607
    COMMONWEALTH of Pennsylvania, v. James CUTILLO, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1981.
    Filed Jan. 22, 1982.

      Robert Donatoni, Assistant Public Defender, West Chester, for appellant.
    Joseph W. Carroll, III, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This appeal arises from the denial of appellant’s Petition to Reduce and Remit Costs of Prosecution assessed following conviction on charges of burglary, recklessly endangering another person, and terroristic threats.

According to the facts as stipulated to by the parties, the appellant, James Cutillo, was hospitalized on March 4, 1977, with gunshot wounds received during his commission of several criminal offenses. An attempt was made to place the appellant in a secure hospital, but that hospital refused to admit him. The Pennsylvania State Police then contacted the Chester County District Attorney’s office for instructions, as neither they nor the Chester County detectives had the manpower to guard the appellant at the time.

An Assistant District Attorney determined that the appellant should be guarded during his hospitalization. This decision was based on the fact that the appellant faced serious charges, was not yet under arrest, and had a prior criminal record. In addition, it was not clear as to whether the appellant would or could leave the hospital as the extent of his injuries were not then known. As a result, arrangements were made with a constable service to provide guards for appellant. These individuals guarded the appellant from March 5, 1977 through March 17, 1977. Bills for their services were submitted to the Chester County Controller’s Office, and payment was authorized. The appellant was arrested at the hospital on March 7, 1977, and was subsequently convicted. Appellant was sentenced and ordered to pay the costs of prosecution, including the expenses incurred in guarding him during his hospitalization.

Appellant contends that he was improperly charged with the costs of guards during his hospitalization. We disagree.

This case is governed by Section 64 of the Act of March 31, 1860, P.L. 427 which provides, inter alia, “. . . in all cases of conviction of any crime, all costs shall be paid by the party convicted.” Part of the costs taxable against a convicted defendant are all necessary expenses incurred by the District Attorney in the investigation of crime and the apprehension and prosecution of persons charged with or suspected of the commission of crime. Act of August 9, 1955, P.L. 323, § 1403, 16 P.S. § 1403.

Thus, we are asked to resolve the question of whether the costs incurred in guarding appellant during his hospitalization were necessary for the appellant’s prosecution on the crimes of which he was convicted.

Appellant directs our attention to a 1934 decision, Commonwealth v. Baughman, 23 Pa.D & C 364 (1934), in which the facts are largely indistinguishable from the case at bar. In Baughman, the court ruled that expenses incurred in guarding a defendant who is hospitalized cannot be taxed against the defendant as costs of his prosecution. The court in Baughman reached this conclusion as a result of a very narrow interpretation of the Act of June 29, 1923, P.L. 973, § 1 from which the Act of August 9, 1955 was derived. The decision reasoned that the term “costs” included only items connected with the actual presentation of testimony before a justice of the peace and before the court, as well as the fees of certain officers. Commonwealth v. Baughman, supra, at 368.

We agree with the well reasoned opinion of the trial judge that Baughman does not represent the current status of the law on the particular issue here involved. Since Baughman, the courts in our Commonwealth have adopted a more expansive view of the costs taxable against a convicted defendant. The Supreme Court in Commonwealth v. Davy, 456 Pa. 88, 317 A.2d 48 (1974), held that the cost of extraditing a defendant from Texas to Pennsylvania in order to obtain his presence at his revocation of probation hearing was properly assessed against the defendant. A lower court decision relying on Davy, supra, held that the monies expended by a drug enforcement officer in the purchase of marijuana were recoverable as costs of prosecution, Commonwealth v. Reese, 2 Pa.D & C 3d 396 (1977). Lastly, the Supreme Court, relying upon 16 P.S. § 1403 and 19 P.S. § 1223, held that a defendant was properly assessed the costs accruing from a change in venue. Commonwealth v. Coder, 490 Pa. 194, 415 A.2d 406 (1980), reversing Commonwealth v. Coder, 252 Pa.Super. 508, 382 A.2d 131 (1977).

In light of the recent case law, we cannot agree with the appellant’s assertion that he is not taxable for the expenses incurred in guarding him during his hospitalization. We find that the money expended was necessary for the prosecution of the crimes for which he was charged. Considering the circumstances, the Assistant District Attorney was justified in determining that guards were necessary in order to eliminate any possibility that the appellant might try to leave the hospital and attempt to avoid prosecution.

We are not, however, giving leave to the lower courts to assess any and all possible costs against a convicted defendant. In determining the taxability of specific costs of prosecution, the trial courts must carefully examine each case in toto. Assessible costs are those which are necessary for prosecution when considered in light of the peculiar facts and circumstances of each case as done herein on review. Those costs which fall within the ambit of usual services provided may not be taxed against a convicted defendant absent extraordinary circumstances. Of course, costs which have traditionally been assessed subsequent to conviction remain untouched by our decision in the instant case.

Order affirmed.

      . 19 P.S. § 1223. This section has been repealed and replaced by the Act of July 9, 1976, P.L. 586, No. 142, § 2, eff. June 27, 1978, 42 Pa.C.S.A. § 1726. This section is applicable as appellant’s convictions occurred in 1977.


text:
    440 A.2d 609
    Betty Lou BRENNA v. NATIONWIDE INSURANCE CO., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1981.
    Filed Jan. 22, 1982.
    Petition for Allowance of Appeal Denied May 5, 1982.

      Scott A. Fleischauer, Hollidaysburg, for appellant.
    William B. Anstine, Jr., York, for appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal arises from an order of the lower court directing the Defendant-Appellant Nationwide Insurance Co. to pay certain benefits pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act. [Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101 et seq., 40 P.S. § 1009.101 et seq., effective 12 months thereafter.] It is not disputed that the Appellee, Betty Lou Brenna, was covered by an insurance policy issued by the Appellant which was in force on October 20, 1977, the date of an accident in which the Appellee was injured.

This action was instituted by the Appellee to recover certain No-fault benefits which the Appellant refused to pay. The dispute arose after the Appellant paid for a substantial amount of medical care furnished to the Appel-lee, but then took the position that the Appellee was fully recovered from her injuries, and refused to make further payments. The lower court ordered the Appellant to pay the bills for the additional medical treatment experienced by the Appellee. On this appeal, the Appellant first contends that the evidence was not sufficient to support the Court’s finding that it was liable to pay such bills as were accrued after May 1, 1978. Second, the Appellant argues that the lower court erred in ordering that it pay the Appellee’s counsel fees incurred in the pursuit of No-fault benefits in this action. Last, the Appellant maintains that the Appellee was not entitled to collect transportation expenses under the No-fault Act for trips to her treating physician’s office, and a hospital.

In our review on this case, we must be mindful that findings of a trial judge in a non-jury case must be accorded the same weight and effect on appeal as the verdict of a jury, and will not be reversed in the absence of an abuse of discretion or a finding of a lack of evidentiary support. Firestone v. Luther Ford Sales, Inc., 271 Pa.Superior Ct. 480, 414 A.2d 355 (1979). The appellate court, in these circumstances, is limited to determinations of whether the trial court’s findings are supported by competent evidence and whether the trial court committed an error of law. Metz Contracting, Inc. v. Boxer Heights, Inc., 261 Pa.Superior Ct. 177, 395 A.2d 1373 (1978). It is also clear that in reviewing the findings of the trial judge, the victorious party is entitled to have the evidence viewed in the light most favorable to him and all the evidence and proper inferences favorable to the successful party must be taken as true and all unfavorable inferences rejected. Courts v. Campbell, 245 Pa.Superior Ct. 326, 369 A.2d 425 (1976); Colish v. Goldstein, 196 Pa.Superior Ct. 188, 173 A.2d 749 (1961). This is especially true where the credibility of witnesses had to be weighed by the lower court. Brentwater Homes, Inc. v. Weibley, 471 Pa. 17, 369 A.2d 1172 (1977).

We first examine the issue of whether there was sufficient proof to support the finding of further medical payment liability against the Appellant after the date Appellant sought to terminate such benefits. The Appellant has taken the position that the Appellee should not have been entitled to benefits after May 1, 1978, because the Appellee allegedly failed to prove that she was “not disabled from resuming employment” after that date. It is apparent that the Appellant, in making that claim, relies upon a report, dated April 10, 1978, by one of the Appellee’s treating physicians stating that he expected that the Appellee might be able to resume work on May 1, 1978.

We do not conclude that such circumstances provide any legally permissible basis for the Appellant’s refusal to pay the Appellee’s subsequent expenses for professional medical treatment and care. The Appellant certainly has no statutory support in the No-fault Act for its position. It appears to confuse its obligations under the No-fault Act with the concepts applicable in workers’ compensation proceedings, where an injured employee’s ability to return to work is of some arguable import in the determination of whether further payments from an employer’s insurer may be due. However whether or not a motor vehicle injury victim can return to work after an injury is certainly not conclusive in establishing a date when the right to medical payment benefits may cease under the No-fault Act. At the time it stopped paying benefits, no physician had expressed the opinion that the Appellee had recovered from her injuries and no longer required medical care. In fact, the same physician who opined that Ms. Brenna might return to work on May 1, 1978 treated her for her injuries after that date.

It would serve no useful purpose to recite here all of the medical treatment, including hospitalizations, experienced by the Appellee subsequent to May 1, 1978, for which the Appellant denied coverage. Suffice it to state that we have closely reviewed all of the evidence, including the testimony of several of the Appellee’s treating physicians. Based upon that review, we find that there was abundant support in such evidence for the lower court’s conclusion that the Appellee’s medical difficulties related to her auto accident of October 20, 1977. Thus, we reject the Appellant’s arguments that it should not have been ordered to pay for the medical costs accrued after May Í, 1978, and associated with such injuries.

The Appellant next contends that the lower court erred in ordering that it pay the fees of Appellee’s counsel which were incurred in this case. We cannot agree. As noted earlier, the Appellant refused to pay medical benefits on the totally irrelevant basis that it was predicted by one doctor that the Appellee would be able to return to work by the beginning of May, 1978. Of course, even if the Appellee had returned to work on that date, the Appellant would have still been responsible for the payment of subsequent medical costs relating to the treatment of injuries incurred in the earlier auto accident. We find that § 107(3) [40 P.S. § 1009.107(3)] is directly applicable in these circumstances and completely supports the lower court’s order. That section provides:

“If, in any action by a claimant to recover no-fault benefits from an obligor, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.”

The lower court determined that the Appellant has no “reasonable foundation” for the denial of the Appellee’s claims, and we can find no error in that conclusion. Indeed, in view of the rationale offered by the Appellant for its refusal to make payment, we believe that the denial of an order for the payment of counsel fees would have been unjust in the circumstances presented here. Therefore, we reject the Appellant’s second claim of error.

Finally, we examine the Appellant’s contention that the Appellee was not entitled, under the Act, to reimbursement for transportation expenses incurred in various trips to a doctor and a hospital. The lower court ordered that the Appellant pay one thousand four hundred ($1,400.00) dollars for the Appellee’s transportation costs, at the rate of twenty cents ($.20) per mile, for seven thousand (7,000) miles of travel visiting a doctor and a hospital for treatment. The Appellant does not contest the finding that the Appellee traveled seven thousand (7,000) miles for treatment, but does object to being found liable for any payment for the costs associated with such travel. It is contended by the Appellant that the No-fault Act does not allow for the payment of such travel expenses. Again, we must disagree with the Appellant.

The findings of the General Assembly which led to the passage of the No-fault Act are stated in § 102(a) [40 P.S. § 1009.102(a) ]. Included therein at subparagraph (3), is the finding that: “The maximum feasible restoration of all individuals injured ... in motor vehicle accidents on Commonwealth highways ... is essential...” The purposes of the Act, set forth in subsection (b) of § 102, includes the statement that it was the policy of the General Assembly, in the enactment of the Act, to provide for “. . . prompt and adequate basic loss benefits for motor vehicle accident victims.” In § 103 [40 P.S. § 1009.103], the term “Basic loss benefits” is defined to include benefits for the “net loss” sustained by a victim. While the Act, in § 103, sets forth certain exclusions from the definition of “Basic Loss benefits”, transportation costs are not within such exclusions. Further, § 103 specifically describes what is meant by the phrase “medical and vocational rehabilitation services”, a term describing benefits available to an injured victim. That definition states that services available include “medical care” and “physical and occupational therapy”. Furthermore, and most significant in this case, the section specifically states that such “services” shall include “transportation where necessary to secure medical . . . rehabilitation services.”

The Appellant seeks to create a fine technical distinction, arguing that even if the therapy visits to the hospital in Huntingdon could be viewed as travel for “rehabilitation” services, the visits to the Baltimore doctor could not. The record is devoid of evidence to suggest that the physician in Baltimore was not engaged in “rehabilitating” his patient, the Appellee, back to good health, within the broad meaning we must ascribe to that term. We thus hold that the lower court acted correctly in ordering the payment by Appellant of the disputed transportation expenses. Therefore, we reject the Appellant’s final claim of error.

The order of the lower court is hereby affirmed.

      . This travel apparently included some ten trips from her home to Baltimore to visit one treating physician, and sixty trips to a hospital in Huntingdon, Pennsylvania for therapy.

      . Websters New Collegiate Dictionary (1979 ed.) defines “rehabilitate” as: “to restore to a condition of health or useful and constructive activity”.


text:
    440 A.2d 613
    HOUSTON-STARR COMPANY, a corporation, Appellant, v. VIRGINIA MANOR APARTMENTS, INC., a corporation, Elias J. Hakim, Jr., an individual, Leonard Magee, Jr., an individual, Lendoll Corporation, a corporation, Berg Construction, a corporation, Maridol Corporation, a corporation, the Western Pennsylvania National Bank, a corporation, and the Metropolitan Life Insurance Company, a corporation.
    Superior Court of Pennsylvania.
    Argued May 1, 1981.
    Filed Jan. 22, 1982.

      John A. Metz, Pittsburgh, for appellant.
    Benjamin Wechsler, Pittsburgh, for appellees.
    Before POPOVICH, MONTGOMERY and HOFFMAN, JJ.
   PER CURIAM:

Appellant contends that the lower court erred in vacating a judgment of settlement without an evidentiary hearing and findings of fact. We agree and, accordingly, vacate the order of the court below and remand for proceedings consistent with this opinion.

On February 15, 1972, appellant filed a complaint in assumpsit against appellee Virginia Manor Apartments, Inc. (hereinafter appellee) and several others alleging that it had not been paid for approximately $70,000 worth of building materials. Following lengthy pre-trial proceedings, the case was called for jury trial in early May, 1978. The case was not tried to completion, however, because the parties negotiated a settlement which the lower court entered as a $37,000 judgment for appellant against appellee. Appellee promptly paid appellant $5,000 as the first installment under the purported settlement agreement. A dispute subsequently arose between the parties concerning the payment terms of the agreement. On August 15, 1979, appellant filed a petition to enforce the agreement alleging its version of the payment terms. The lower court subsequently conducted a conference, where appellee apparently denied that it had agreed to the terms alleged in appellant’s petition. The lower court then circulated to counsel, and later filed, the following order:

WHEREAS, the above captioned matter came on for trial and after taking some testimony the case was settled for $38,000.00, $37,000.00 to be paid by [appellee], and $1,000.00 to be paid by the other defendants, and,
WHEREAS, the parties understood that [appellee] was not able to pay the agreed settlement except on terms, and
WHEREAS, the parties were to enter into an agreement providing for the terms of payment of the $37,-000.00, and
WHEREAS, judgment was entered of record against [appellee] and in favor of [appellant] in the amount of $37,000.00, and
WHEREAS, [appellee] did at the time of settlement pay to [appellant] the sum of $5,000.00, and
WHEREAS, the parties met outside the presence of the court to enter into an agreement for the terms of payment of the balance of $32,000.00, and
WHEREAS, [appellant] has filed a “Petition to Enforce Settlement Agreement” based upon terms which [appellant] contends were agreed to, and,
WHEREAS, [appellee] denies that it agreed to the terms as contended by [appellant], and
WHEREAS, a hearing was scheduled thereon and was continued for the parties to attempt to resolve their differences, and
WHEREAS, the parties were unable to resolve their differences, and
WHEREAS, a second hearing on the petition was scheduled for November 9, 1979, at 3:00 o’clock P.M., which was held, and
WHEREAS, at the aforesaid hearing, the Court stated that it could not conduct the hearing to enforce the settlement agreement for the reasons that there was no agreement as to the terms of payment which was made with and in the presence of the Court, and that the proper procedure would be for [appellant] to bring a separate action in assumpsit requesting relief consistent with the terms of the agreement as contended for by [appellant], and
WHEREAS, the Court met with the attorneys for the parties and it was agreed that the attorneys together with their clients would again meet on November 12, 1979 to attempt to resolve their differences, and
WHEREAS, the Court advised the attorneys that there were three alternatives available, i.e., (1) that [appellant] sue on the agreement as contended for by it, (2) that the parties agree to settle their differences, and (3) that the judgment in the amount of $37,000.00 be vacated, [appellant] return to [appellee] the $5,000.00 already paid by [appellee] to [appellant], and
WHEREAS, the parties and their attorneys did meet on November 12, 1979 and the Court has been advised that the parties were unable to resolve their differences and that [appellant] did not choose to proceed in assumpsit on the contended for agreement, and
WHEREAS, the parties agree, by their attorneys, that the judgment heretofore entered be vacated and [appellant] return to [appellee] $5,000.00 and the case proceed to trial against [appellee] alone,
NOW, therefore, it is ordered this 31 day of December, 1979,
1. That the judgment entered against [appellee] on May 8, 1978 as of May 3, 1978 in the amount of $37,000.00 be and hereby is vacated.
2. That [appellant] refund to [appellee] the sum of $5,000.00.
3. That upon proof of payment of the aforesaid $5,000.00 being filed in the within proceedings, the within case shall be set down for trial, on the merits, to a jury.

That the case shall proceed against [appellee] only and all other defendants are dismissed as parties to the action. This appeal followed.

Appellant argues that the lower court erred in entering the above order without first conducting an evidentiary hearing and making findings of fact concerning the settlement agreement. We agree. In Limmer v. Country Belle Cooperative Farmers, 220 Pa. Superior Ct. 171, 286 A.2d 669 (1971), a plaintiff attempted to enforce a settlement agreement. Defendant denied that an agreement had been reached because its offer had not been timely accepted. Although the lower court conducted no evidentiary hearing, it specifically enforced the agreement and entered judgment for the amount of the purported settlement. In its order, the lower court detailed its personal knowledge of the disputed facts. On appeal, this Court reversed the judgment and remanded for an evidentiary hearing and findings of fact concerning the alleged settlement agreement. Id., 220 Pa.Super. at 178-79, 286 A.2d at 672. We stated “[t]hat an evidentiary hearing into the existence and binding effect of the settlement agreement is the appropriate procedure to be followed in matters of contested settlement agreements has been clearly established by our courts.” Id., 220 Pa.Super. at 173, 286 A.2d at 670. Accord, Philadelphia Redevelopment Authority v. L & A Creative Art Studio, Inc., 6 Pa. Commonwealth Ct. 326, 330, 294 A.2d 606, 608 (1972) (reversing judgment entered on settlement agreement and remanding for evidentiary hearing on issue of existence of valid settlement agreement). Here, as in Limmer, the order appealed reveals the lower court’s intimate knowledge of the details of the settlement agreement. However, as in Limmer, we cannot review the lower court’s actions because there was no testimony or findings of fact. The need for a complete record is just as acute when we are reviewing an order vacating a settlement as when we are reviewing an order enforcing a settlement agreement. The lower court’s recitals in its order are not a substitute for a full record, especially when the parties dispute the very circumstances under which the order was entered. Accordingly, we must vacate the order of the court below and remand for an evidentiary hearing after which the lower court shall make findings of fact and enter an appropriate order. Either party aggrieved by the lower court’s ultimate order may appeal as allowed by law.

So ordered.

      . There is no indication whatsoever in the current record that the lower court received any evidence concerning the settlement at this, or at any other, time. There is no transcript of those proceedings, and the parties disagree as to their nature and content.

      . Appellee argues that this appeal is from an interlocutory order and, therefore, premature. See, e.g., T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). Even if appellee is correct in its assertion that the order is interlocutory, it is nevertheless appealable as of right as “[a]n order . . . vacating ... a judgment.” Pa.R.A.P. 311(a)(1).


author: CERCONE, President Judge:

text:
    440 A.2d 616
    Blanch E. MATTIA, Appellant, v. EMPLOYERS MUTUAL COMPANIES.
    Superior Court of Pennsylvania.
    Argued April 1, 1981.
    Filed Jan. 29, 1982.

      David N. Rosen, Philadelphia, for appellant.
    James W. Hennessey, Norristown, for appellee.
    Before CERCONE, President Judge, and HESTER and JOHNSON, JJ.
   CERCONE, President Judge:

On November 12, 1977, appellant, Blanch E. Mattia, was crossing Frankford Avenue in the city of Philadelphia, on foot, when she was struck by an automobile. As of that date, Mrs. Mattia was insured under a policy of insurance issued to her son by appellee, Employers Mutual Companies. At the time of the accident, Mrs. Mattia was self employed, having opened a florist shop some six months earlier, on or about May 16, 1977.

Appellee refused to compensate Mrs. Mattia under the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act), claiming that Sections 202(b) and 205 of the No-fault Act precluded her recovery of work loss benefits. The lower court supported appellee’s contentions, and thus, granted appellee’s motion for summary judgment. It is from that order which the present appeal lies.

Appellant raises four issues on appeal. Appellant’s first claim faults the lower court for granting summary judgment where work loss benefits under the No-fault Act were denied to a self-employed individual who showed no income at the time of injury. Finding this first argument meritorious, we must reverse the order of the lower court and remand the case for proceedings consistent with our opinion.

The rules of civil procedure dictate that summary judgment may be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that no genuine issue as to any material fact exists and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035. See also Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970). The court must accept as true all well-pleaded facts in the non-moving party’s pleadings, as well as admissions on file, giving them the benefit of all reasonable inferences to be drawn therefrom. Hankin v. Mintz, 276 Pa.Superior Ct. 538, 419 A.2d 588 (1980); Ritmanich v. Jonnel Enterprises Inc., 219 Pa.Superior Ct. 198, 280 A.2d 570 (1971). The entire record is to be examined in the light most favorable to the party opposing the motion, and all doubts concerning the existence of a genuine issue of fact must be resolved in that party’s favor. See Bowman v. Sears Roebuck & Co., 245 Pa.Superior Ct. 530, 369 A.2d 754 (1976); Husak v. Berkel, Inc., 234 Pa.Superior Ct. 452, 341 A.2d 174 (1975). In the case at bar, because a doubt as to a triable issue of material fact existed, specifically the absence or presence of work loss, and because we find the moving party was not entitled to a judgment as a matter of law, summary judgment should not have been granted.

According to the history of the case, Mrs. Mattia was self-employed as a florist trading under the fictitious name of Blanch’s Flower Shop. She was so employed from May 16,1977 to the date of the accident which was November 12, 1977. For the calendar year of 1977, the florist shop showed a net loss of $715.86 based upon gross receipts of $1500.85. During this period, Mrs. Mattia did not receive a salary from the business. At the time of the accident, however, she was anticipating substantial Yuletide profits, which normally accompany the holiday season. Below, the lower court agreed with the appellee’s contention that application of the statutory provisions of the No-fault Act concerning the calculation of work loss benefits to the instant facts resulted in zero recovery for Mrs. Mattia.

Section 202 of the No-fault Act provides for basic loss benefits to a victim including work loss. The pertinent portion of that section provides:

(b) Work loss limits.—Work loss, as defined in Section 103 shall be provided:
(1) Up to a monthly maximum of:
(A) One Thousand Dollars ($1,000.00) multiplied by a fraction whose numerator is the average per capita income in this Commonwealth and whose denominator is the average per capita income in the United States, according to the latest available United States Department of Commerce figures; or
(B) The disclosed amount, in the case of a named insured who, prior to the accident resulting in injury, voluntarily discloses his actual monthly earnings to his obligor and agrees in writing with such obligor that such sums shall measure work loss; and
(2) Up to a total amount of Fifteen Thousand Dollars ($15,000.00).

40 P.S. § 1009.202 (1974). Work loss is defined by Section 103 of the Act as follows:

‘Work loss’ means:
(A) Loss of gross income of a victim as calculated pursuant to the provisions of Section 205 of this Act; and
(B) Reasonable expenses of a victim for hiring a substitute to perform self-employment services, thereby mitigating loss of income, or for hiring special help, thereby enabling a victim to work and mitigate loss of income.

40 P.S. § 1009.103 (1974). Section 205 of the Act specifically provides for the calculation of work loss.

(a) Regularly employed.—The work loss of a victim whose income prior to the injury was realized in regular increments shall be calculated by:
(1) determining his probable weekly income by dividing his probable annual income by fifty-two; and
(2) multiplying that quantity by the number of work weeks, or fraction thereof, the victim sustains loss of income during the accrual period.
* * * * * *
(d) Definitions.—As used in this section: ‘Probable annual income’ means, absent a showing that it is or would be some other amount, the following:
(A) twelve times the monthly gross income earned by the victim from work in the month preceding the month in which the accident resulting in injury occurs, or the average annual income earned by the victim from work during the years, not to exceed three, preceding the year in which the accident resulting in injury occurs, whichever is greater, for a victim regularly employed at the time of the accident;
(B) the average annual gross income earned by the victim from work during the years in which he was employed, not to exceed three, preceding the year in which the accident resulting in injury occurs/for a victim seasonally employed or not employed at the time of the accident; or
(C) the average annual gross income of a production or non-supervisory worker in the private nonfarm economy in the state in which the victim is domiciled for the year in which the accident resulting in the injury occurs, for a victim who has not previously earned income from work.
“Work week” means the number of days an individual normally works in a seven-day period; “weekly income” means income earned during a work week.

40 P.S. § 1009.205 (1974) (emphasis supplied).

Because Mrs. Mattia was considered “regularly employed”, the calculation of her work loss benefits occurred under Section 205(a) of the No-fault Act: the annual income of Mrs. Mattia, which was zero at the time of her injury ($00.00) when multiplied by the number of weeks she missed from work, which was twenty (20), resulted in zero work loss benefits. On the basis of this calculation, the lower court granted appellee’s motion for summary judgment.

The Legislature’s express purpose in adopting the No-fault Act was to create “a ‘low cost, comprehensive, and fair system’ which would provide for ‘maximum feasible restoration’ of all victims of motor vehicle accidents.” Tubner v. State Farm Mutual Automobile Insurance Co., 496 Pa. 215, 436 A.2d 621 (1981). Restoration includes assuring “every victim . . . recovery of a reasonable amount of work loss.” 40 P.S. § 1009.102(a)(6)(A) (1974). Strict application of the formula set forth in § 205(a) of the Act does not permit Mrs. Mattia to recoup a “reasonable amount of work loss”; in fact, it causes an absurd and unreasonable result. Since insurance statutes are not among those types of statutes designated by our Legislature as requiring strict construction, we are to construe them liberally in order to effect their purpose. See Goodwin v. Hartford Life Ins. Co., 359 F.Supp. 20 (1973), reversed on other grounds 491 F.2d 332 (1974); Sheppard v. Old Republic Life Ins. Co., 21 Pa.Commonwealth Ct. 360, 346 A.2d 383 (1975). See also 1 Pa.C. S.A. § 1928 (1972). Moreover, when construing statutes, we are to recognize that the Legislature “does not intend a result, that is absurd, impossible of execution or unreasonable” 1 Pa.C.S.A. § 1922(1) (1972). See also Commonwealth v. Horton, 465 Pa. 213, 348 A.2d 728 (1975). Unfortunately, the lower court failed to implement these two canons of statutory construction, and so it denied Mrs. Mattia the opportunity to prove her economic loss.

Certainly, Mrs. Mattia should have the opportunity of proving her work loss. The statute allows those individuals who are “seasonably employed” and even those who are “not employed” to prove work loss. As noted by the lower court in its opinion, “it would appear that plaintiff Mattia may well have fared better by remaining in the ranks of the unemployed rather than demonstrating initiative in opening and risking a fledgling business.” At least then she would neatly have fitted into one of the three categories enumerated in Section 205 and her work loss would have been easily calculated. Nevertheless, Mrs. Mattia’s situation does appear to be covered under one of the definitions for “probable annual income” as explained in Section 205(d). That is, although it appears that the definitions of “probable annual income” seem to be geared respectively to the three categories of “regularly employed,” “seasonably employed” and “not employed,” subsection (c) speaks only in general terms of a person “who has not previously earned income from world’ rather than limiting the definition to those simply “not employed.” Mrs. Mattia, in suffering a deficit from her newly opened business is an individual “who has not previously earned income from work.” As such, her probable income can be determined in accordance with the formula appearing in Section 205(d), subsection (c). Thus, the question of Mrs. Mattia’s work loss benefits should have gone to the jury as a triable issue of fact, and therefore, the granting of a summary judgment was incorrect.

Reversed and remanded to the lower court for proceedings consistent with our opinion. We relinquish jurisdiction.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. 1, §§ 101 et seq., 40 P.S. §§ 1009.101 et seq.

      . Finding this first argument meritorious, we need not address appellant’s remaining claims, which included (1) the unconstitutionality of the No-fault Act for failing to indicate in its title that the Act limits tort liability; (2) the violation of appellant’s due process rights; and (3) the validity of the Act itself.

      . This section of the statute also provides formulas for determining the work loss of those persons “seasonably employed” and “not employed.”

      . Legislative findings and purposes are set forth in Section 102 of the No-fault Act.


author: SPAETH, Judge:

text:
    440 A.2d 619
    COMMONWEALTH of Pennsylvania, Appellant, v. Eleanor DORSEY.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1981.
    Filed Jan. 29, 1982.

      Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   SPAETH, Judge:

This is an appeal by the Commonwealth from an order discharging appellee under Rule 1100(f). The lower court held that the police had not exercised due diligence in looking for appellee, and that the period between the offense and appellee’s arrest should therefore not be excluded from the period within which appellee had to be Aied. We reverse.

On August 12, 1977, appellee stabbed Eugenia Scott. On August 27, 1977, Detective Ryan of the Philadelphia Police filed a complaint against appellee and obtained a warrant for her arrest. She was not arrested, however, until February 16, 1978.

The original Rule 1100 run date—180 days from the date the complaint was filed—was February 23, 1978. On April 4, 1978, appellee, who had not yet been tried, moved for a discharge under Rule 1100. The pre-trial motions court denied the motion, finding that despite due diligence, the police had been unable to find appellee before February 16, 1978, and that the period between the date the complaint was filed and the date of appellee’s arrest should therefore be excluded as time during which appellee was unavailable. See Pa.R.Crim.P. 1100(d)(1).

On May 23, 1979, appellee was tried and found guilty of aggravated assault and possessing an instrument of crime. By timely post-verdict motion, appellee again moved for a discharge. The lower court granted the motion and discharged appellee, finding, contrary to the pre-trial motions court, that the police did not exercise due diligence in trying to find appellee.

The Commonwealth had the burden of proving by a preponderance of the evidence that the police exercised due diligence in trying to find appellee. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Jones, 256 Pa. Superior Ct. 366, 389 A.2d 1167 (1978). The Commonwealth’s evidence of diligence consisted entirely of the testimony of Detective Ryan. On direct examination, the detective said:

On August 28 I again went to 5310 Priscilla [appellee’s address]. There was no answer at the house. On 9-30 I went to the house. I was let into the house by her husband and by a 15 year old female who was her daughter and they stated that Eleanor Dorsey lived there but she wasn’t home. I searched the house. She wasn’t at home. On 10-23 I again went out to the house. There was no answer. I then entered Eleanor Dorsey’s name into PCIC [Pennsylvania Crime Information Center] as being wanted for an aggravated assault and there was a warrant outstanding for her. I again went to the house on 12-12. He[r] daughter was home, gained entrance. Eleanor Dorsey wasn’t home and again on 1-23. Now, sometime around 1-23 or a little bit after I spoke to an ACT [Anti-Crime Team] team policeman [sic] Speeler and Holmes . . . and I informed them that I had a warrant out-standing for Eleanor Dorsey. I also gave them a police department photograph I had of this defendant and on February 16 the[y] locked her up on Germantown Avenue.
N.T. 4/21/78 at 4-5.

On cross-examination the detective acknowledged that he had not found out where appellee worked, had not set up any kind of stakeout at her house, and had not checked to see if she was on the welfare rolls. Id. at 5. In finding that this testimony did not establish due diligence, the lower court said:

The detective was able to ascertain that defendant did, in fact, live at the residence and was working. The detective made no effort to determine where defendant worked, what time she would be home, or leave a message that Defendant contact the detective. The evidence clearly shows that no effort other than visiting the home was made by the detective. The record failed to disclose that the officer told anyone at [the] home of Defendant that there was a warrant outstanding for her arrest.
R. 9a.

In Commonwealth v. Mitchell, supra, 472 Pa. at 566, 372 A.2d at 832, the Supreme Court said: See also, Commonwealth v. Hinton, 269 Pa.Superior Ct. 43, 409 A.2d 54 (1979); Commonwealth v. Jones, 256 Pa.Superior Ct. 366, 389 A.2d 1167 (1978). Here, “the information available to the police” included knowledge of where appellee’s family, and therefore presumably appellee herself, lived. Appellee argues, however, that the police should have had more information available than only her address:

It is not the function of our courts to second-guess the police methods used by police to locate accused persons. The analysis to be employed is whether, considering the information available to the police, they have acted with diligence in attempting to locate the accused. Deference must be afforded the police officer’s judgment as to which avenues of approach will be fruitful.
[Although the detective spoke with appellee’s husband one month after the issuance of the complaint, he never asked if appellee was working or receiving public assistance, and apparently never asked when appellee would be home nor did he inform her husband that he had a warrant for her arrest.
Brief for Appellee at 11.

This argument misstates the issue we must decide. In considering “the information available to the police,” we do not ask whether the police had available all the information they might have had available—in other words, whether they did all they could have done. Instead, we ask whether what they did do was enough to constitute due diligence.

Here, no doubt Detective Ryan could have questioned appellee’s husband, and told him that a warrant had been issued for appellee’s arrest. But the failure to do so does not demonstrate lack of due diligence. The detective may have believed that appellee’s husband was not a reliable source of information; or that the husband would be more inclined to frustrate efforts to find appellee than to assist them, and that mentioning the warrant would lead to appellee’s flight.

Nor are we willing to say that the detective’s failure to set up a stakeout at appellee’s house, or to check to see if appellee was on the welfare rolls—as it was implied on cross-examination he should have done—demonstrates lack of due diligence. In Commonwealth v. Mitchell, supra, the police received a tip in October that the defendant was receiving public assistance, and arrested him when he picked up his check. The police had been looking for the defendant since July. The defendant argued that if the police had exercised due diligence, they would have checked with the Department of Public Assistance right away; then they would have learned that he had started to receive public assistance in July, and they could have arrested him much earlier. Rejecting this argument, the Supreme Court said:

The error in such reasoning is that nothing in the record indicates that the police had any indication prior to [the October tip] that Mitchell was obtaining public assistance. 472 Pa. at 565, 372 A.2d at 832.

Similarly, there is no evidence here indicating that the police knew appellee was on the welfare rolls.

As we have considered this case we have found it not surprising that two judges of the lower court—the pre-trial motions judge and the post-verdict motions judge—differed, one finding due diligence, the other not. Without question, the police might have done more by way of trying to find appellee, and they might have done some of what they did do, in particular, circulating a photograph of appellee, sooner. One may have some confidence that if the crime had been of a different, and more spectacular, sort, it would not have taken the police so long to find appellee. Having said this much, however, we recognize that the police cannot investigate every crime with the promptness and thoroughness that would be desirable. Too many crimes are committed. The police must therefore make choices, devoting more attention to some crimes than to others, and forgoing some lines of inquiry that they would pursue if they had more resources.

Thus, when asked to decide whether the police have acted with due diligence, a court must engage in a balancing process, which may become quite awkward. On the one hand, the court should approach its decision with sympathy for the police. For as the Supreme Court has said in Commonwealth v. Mitchell, supra, 472 Pa. at 561, 372 A.2d at 830: “The police can be expected to act with due diligence in locating and apprehending an accused in all situations because it is their duty to do so as public officials.” The court should therefore take into account the limited resources available to the police, and should be wary of saying that the police should have done something that they did not do. On the other hand, the police, like other public officials, do not always do their duty. Furthermore, the interest of an accused in receiving a prompt trial is a precious interest, which it is the court’s responsibility to protect. See Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972); see also Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). If it is not the function of the courts to “second-guess” the police, neither is it their function to suspend their critical faculties. If the courts were always to make excuses for the police, the requirement of “due diligence” would have no force at all.

Here, striking this balance as best we can, we have concluded that the police acted with due diligence. The police went to appellee’s house five times over a period of about six months. After the third time, they entered appellee’s name in the Pennsylvania Crime Center Computer, and after the fifth time, distributed appellee’s photograph. Thus, while perhaps they were slow, nevertheless, the police persisted in their efforts to find appellee by repeatedly checking at the place where she was likely to be. Their efforts were, in a rough way, equivalent to efforts that we have found in other cases constituted due diligence. Commonwealth v. McDermott, 280 Pa.Superior Ct. 535, 421 A.2d 851 (1980) (police checked with defendant’s employer, at his home, and in areas known to be frequented by defendant, over nine month period; circulated photographs; and entered defendant’s name on National Crime Information Center computer); Commonwealth v. Jones, 256 Pa.Superior Ct. 366, 389 A.2d 1167 (1978) (defendant wanted for participation in narcotics ring; undercover officer conducted surveillance, on six or eight occasions, of known drug areas in defendant’s community, and examined photographs supplied by local police). In Commonwealth v. Collins, 266 Pa.Superior Ct. 340, 404 A.2d 1320 (1979), we found a lack of due diligence in apprehending the defendant. There, however, the police made “[a] single unsuccessful visit to the homes of two relatives, followed a month and a half later by [the officer leaving his] card at the accused’s mother’s residence with a request to be contacted should the accused come calling . . . . ” Id., 266 Pa.Superior at 404 A.2d at 1323. In addition, the police made no effort to use an abundance of available information:

Although appellant, known as “Philly Dog,” had a police record and was on probation, the record reflects that no effort was made to secure information or cooperation of the probation and parole offices. No effort was made to secure cooperation of out-of-county police departments, even though the prosecution was aware from the start that appellant had fled after the criminal episode. Even after being informed by the state parole officer of the Philadelphia address, and the corroboration of appellant’s presence there by his mother in February, Pittsburgh officials made no contact with Philadelphia authorities until two months later.
Id., 266 Pa.Superior at 346, 404 A.2d at 1323.

The order granting appellee’s motion in arrest of judgment is hereby reversed, the convictions are reinstated, and the case is remanded to the lower court for sentencing.