author: WIEAND, Judge: POPOVICH, Judge,

text:
    581 A.2d 636
    COMMONWEALTH of Pennsylvania v. Leroy Ronald FEFLIE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 29, 1990.
    Filed Oct. 22, 1990.

      Martricia McLaughlin, Easton, for appellant.
    Daniel G. Spengler, Asst. Dist. Atty., Bath, for Com., appellee.
    Before WIEAND, BECK and POPOVICH, JJ.
   WIEAND, Judge:

Leroy Ronald Feflie was tried by jury and was found guilty of robbery, theft, and recklessly endangering another person in connection with an armed robbery of the First Valley Bank branch office in Lower Mount Bethel Township, Northampton County, on February 10, 1987. Post-trial motions were denied, and Feflie was sentenced to serve a term of imprisonment for not less than 88 months nor more than 176 months. On direct appeal from the judgment of sentence, Feflie asserts a plethora of alleged pre-trial, trial and sentencing errors. Our review discloses no merit in appellant’s contentions, however, and we affirm the judgment of sentence.

On February 10, 1987, at or about 8:25 a.m., a masked gunman entered the Bank through a back door and ordered the assistant branch manager, Eileen Conklin, and another employee, Denise Cannavo, to enter the vault. Cannavo was handcuffed, and Conklin was ordered to place the vault money in a green duffle bag. The robber then handcuffed the two women to a bathroom window and exited the Bank. According to a Bank audit, fifty-six thousand, three hundred seventy-one ($56,371.00) dollars were taken. The robber, according to the testimony at trial, was wearing a mask and was clothed in blue jeans, a green Army jacket, a green hooded sweatshirt, and tan work boots. Yellow plastic gloves covered his hands, and he carried a black, long-barrelled .357 Magnum revolver.

On February 12, 1987, pursuant to an affidavit detailing the robbery and reciting a physical description of the robber and a sworn statement by Patricia Heckman that appellant had told her of his intention to commit the robbery, a warrant was issued for Feflie’s arrest. A teletype concerning the arrest warrant was promptly sent and received by Sheriff Terry Ashe of Wilson County, Tennessee. The teletype contained Feflie’s last known address in Mt. Juliette, Tennessee, and a description of Feflie’s vehicle. This vehicle was later found and identified in front of the residence of Feflie’s former wife in Mt. Juliette. Throughout the evening, Tennessee police monitored the Mt. Juliette residence, and the following morning they entered the house and arrested appellant. A search of the house produced a green fatigue jacket. Appellant consented to a search of his Dodge van, and there police found blue jeans, two green T-shirts, an “Assault Force” T-shirt, five .22 caliber shells, ten Federal .357 Magnum shells and six Remington shotgun shells.

Appellant first challenges the sufficiency of the evidence. He contends that the evidence was so circumstantial that it was insufficient to establish his identity as the perpetrator of the crimes. Further, appellant argues that the Commonwealth failed to establish the elements of the crime of recklessly endangering another person. Specifically, appellant contends, the evidence was insufficient because direct' evidence of a weapon was not presented and the evidence produced was not conclusive of the fact that a weapon, if used, was loaded.

“In reviewing appellant’s challenge to the sufficiency of the evidence we must determine ‘whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.’ ” Commonwealth v. Sabharwal, 373 Pa.Super. 241, 243, 540 A.2d 957, 958 (1988), quoting Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). “When conflicts and discrepancies arise, it is within the province of the [jurors] to determine the weight to be given to each [witness’s] testimony and to believe all, part, or none of the evidence as they deem appropriate.” Commonwealth v. Verdekal, 351 Pa.Super. 412, 419-420, 506 A.2d 415, 419 (1986). See also: Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). The same standard is applicable in cases such as the instant case, where the evidence supporting a conviction was largely “circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, — U.S. -, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). See also: Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977); Commonwealth v. Petrisko, 442 Pa. 575, 579-580, 275 A.2d 46, 49 (1971).

When viewed in this light, it is evident that the Commonwealth’s evidence was legally sufficient to support a finding that appellant had perpetrated the offenses charged. The evidence at trial established that one week prior to the robbery, a woman who resided in the neighborhood of the Bank had observed appellant near the Bank on two separate occasions. The neighbor testified that she had observed appellant in a dark sports car on the first occasion and then, again, in a dark “Bronco or Jeep-type vehicle.” At the time of his arrest, Feflie was the owner of a maroon Dodge van.

Prior to the robbery, appellant was dating and occasionally stayed with Patricia Heckman. Heckman testified that appellant had discussed with her his plans for the bank robbery. He had told her that he planned to enter the Bank after the employees arrived and handcuff the women. Heckman testified that for approximately one month prior to the robbery appellant had been “watching” the Bank and that on two occasions she and appellant had gone to the First Valley Bank to see who was there and to examine the floor plan. On one occasion prior to the robbery, Heckman had returned home to find appellant in her living room in possession of a green duffle bag, handcuffs, rubber gloves, a dark ski mask, a pair of old tan work boots and a .357 Magnum.

The Commonwealth also elicited testimony from John Hall, appellant’s prison mate. Hall testified that appellant had related the manner in which he had staked out the Bank to learn the times when the Bank employees would arrive and depart. In relating the events of the robbery, appellant had told Hall that he was wearing blue jeans, an Army coat which covered a T-shirt on which the words “Assault Force or Attack Force” appeared, a ski mask, and gloves. He also offered that he had used a .357 Magnum to commit the robbery. Hall related that appellant had told him of an alibi which he intended to use concerning the Days Inn in Tennessee.

Appellant testified on his own behalf that he had left Pennsylvania on either February 6, 1987 or February 7, 1987 for a fishing trip to Tennessee. He said that he had arrived in Tennessee on the evening of February 9, 1987, and had slept in his van that evening. He said that on the night of February 10, 1987 he had been unable to contact his former wife and as a result had spent the night at the Days Inn. The credibility of this testimony, of course, was for the jury to determine. The jury could, as it did, reject appellant’s version of the events and accept as true the evidence presented by the Commonwealth.

The evidence was also sufficient to permit a finding of reckless endangerment of another person. The evidence, if believed, showed that the robber had entered the Bank and displayed a “long-barrel,” “large caliber handgun revolver.” Cannavo testified that she had seen the revolver which had a “round cylinder with the bullets in it.” See: Commonwealth v. Rivera, 349 Pa.Super. 303, 503 A.2d 11 (1985) (evidence that gun was pointed at victims and used to threaten them was sufficient to support inference that robbers had placed victims in situation where risk of death or serious bodily injury was real and not merely apparent even though Commonwealth failed to show by direct evidence that gun had been loaded).

Appellant next contends that the photographic arrays shown to Toni Pulcini, the neighbor woman who identified appellant in the vicinity of the Bank prior to the robbery, and Jay Siegel, who identified appellant as being near the Bank following the robbery, were unnecessarily suggestive and should have been suppressed because the other individuals in the arrays did not resemble appellant. These photographic displays have not been included in the record. It is the appellant’s responsibility to provide a complete and comprehensive record to the reviewing court for the purposes of appeal. Commonwealth v. Williams, 357 Pa.Super. 462, 466, 516 A.2d 352, 354 (1986). See: Pa.Rules of Appellate Procedure. Chapter 19—Preparation and Transmission of Record and Related Matters. In the absence thereof, we rely on the trial court’s detailed description of the photo arrays and find no merit in appellant’s claim.

Next, appellant argues that the trial court erred in failing to suppress the inculpatory statements allegedly made by appellant to John Hall, a prison mate at the Northampton County Prison. He argues that because Hall had been an informant for the Commonwealth in other cases, he, appellant, was subjected to custodial interrogation. Any statements made to Hall, he argues, were subject to suppression because of the absence of appropriate Miranda warnings. In addition, appellant contends that he was denied his Sixth Amendment right to counsel during interrogation by Hall. Although Hall had worked as an informant in other cases, he had not been requested by police to interrogate appellant, nor had he been promised favorable treatment for giving testimony against Feflie. Therefore, his legal status was not different than any other prisoner who may have elicited appellant’s “jailhouse confession.” See: Commonwealth v. Rhoades, 364 Pa.Super. 54, 527 A.2d 148 (1987), allocatur denied, 521 Pa. 611, 557 A.2d 343 (1989) (not violation of defendant’s Sixth Amendment rights where incriminating statement made to prison mate who was acting on his own initiative and without promise of benefit from Commonwealth and who had been placed in adjoining cell by happenstance and not design). See also: United States v. Hicks, 798 F.2d 446 (11th Cir. 1986), cert. denied, 479 U.S. 1035, 107 S.Ct. 886, 93 L.Ed.2d 839 (1987) (not violation of defendant’s Sixth Amendment rights where incriminating statements made to prison mate who had not been “planted” and who acted without instruction by law enforcement officials). Similarly in the instant case, the incriminating statements made by appellant were not elicited by and did not involve state action.

In the recent case of Illinois v. Perkins, — U.S.-, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990), an undercover agent, posing as a fellow cellmate, had been placed in Perkins’ cellblock for the purpose of gaining information about an unsolved murder. The informant was successful in obtaining Perkins’ confession to the murder. Perkins objected to the use of this confession, however, because no Miranda warnings had been given prior to the informant’s conversation with him. The Court held that the tactic used to elicit a voluntary confession from a suspect did not violate the constitutional guarantee against self-incrimination. Considering the free exchange of conversation existing between inmates, the Court held that Miranda warnings were not required when the suspect was unaware that he was speaking to a law enforcement officer and gave a voluntary statement. Although the facts in Perkins are different than those in the instant case, the following language is pertinent.

The warning mandated by Miranda was meant to preserve the privilege during “incommunicado interrogation of individuals in a police-dominated atmosphere.” ... The essential ingredients of a “police-dominated atmosphere” and compulsion are not present when an incarcerated person speaks freely to someone that he believes to be a fellow inmate. Coercion is determined from the perspective of the suspect____ When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking____
Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be their cellmates. This case is illustrative. Respondent had no reason to feel that undercover agent Parisi had any legal authority to force him to answer questions or that Parisi could affect respondent’s future treatment. Respondent viewed the cellmate-agent as an equal and showed no hint of being intimidated by the atmosphere of the jail. In recounting the details of the Stephenson murder, respondent was motivated solely by the desire to impress his fellow inmates. He spoke at his own peril.

Id. at -, 110 S.Ct. at 2397-2398, 110 L.Ed.2d at 250-252.

Appellant next contends that evidence found as a result of the search of his former wife’s residence should have been suppressed because the police failed to announce their purpose prior to entering. The information which had been given to the police in Tennessee was that the suspected robber was armed. During their all night surveillance of Feflie’s former wife’s residence, moreover, police had learned that there were children in the house. The next morning, after children had been seen leaving the house, the police approached the back door of the residence. A woman stepped out from the back door and the police yelled into the house through the open back door to announce their presence before they entered. Officer Ashe explained who he was and requested Feflie to come downstairs. Feflie was in fact in the house and complied with the officer’s request. Under these circumstances, there is no merit to appellant’s contention that police conduct rendered the arrest unlawful.

Absent exigent circumstances, a police officer executing a warrant must give notice of his identity and announce his purpose prior to entering a private residence. See: Commonwealth v. Kitchener, 351 Pa.Super. 613, 617-618, 506 A.2d 941, 943 (1986), quoting Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971) (plurality opinion). See also: Commonwealth v. Stanley, 498 Pa. 326, 334, 446 A.2d 583, 587 (1982). The purpose of the “knock and announce” requirement is to prevent resistance to lawful authority based on an occupant’s efforts to protect his privacy expectation against the unauthorized entry of persons unknown to him. It gives the individual a chance to surrender the premises peacefully in the face of lawful authority. Commonwealth v. Beard, 501 Pa. 385, 461 A.2d 790 (1983); Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982); Commonwealth v. DeMichel, supra.

In Commonwealth v. Eliff, 300 Pa.Super. 423, 446 A.2d 927 (1982), the Court set forth alternative tests to determine the existence of exigent circumstances. The first test, as initially proposed in Dorman v. United States, 435 F.2d 385 (D.C.Cir.1970), listed a number of factors to be examined. Among the factors considered by the Dorman court were: (1) the gravity of the offense, (2) whether the suspect was reasonably believed to be armed, (3) the degree to which probable cause existed beyond minimum warrant requirements, (4) whether there was strong reason to believe the suspect was in the premises to be entered, (5) the likelihood of the suspect’s escape, (6) whether the opportunity for peaceable entry was offered, and (7) the time of entry. Commonwealth v. Eliff, supra 300 Pa.Super. at 439, 446 A.2d at 935. The alternative test, as set forth in United States v. Flickinger, 573 F.2d 1349 (9th Cir.1978), cert. denied, 439 U.S. 836, 99 S.Ct. 119, 58 L.Ed.2d 132 (1978), adopted a more flexible “totality of the circumstances” approach. Commonwealth v. Eliff, supra 300 Pa.Super. at 439-440, 446 A.2d at 935.

Under either standard, there is no basis for disturbing the finding of exigent circumstances by the suppression court. The police were aware of the potential that appellant was armed with a .357 Magnum. They also knew that there had been children in the house, and suspected that others remained. Police conduct, after the back door had been opened, belies any flagrant attempt on their part to flaunt the “knock and announce” rule. The police entertained a reasonable belief that appellant was armed, since the offense had been committed with a weapon merely three days before and because no weapon had been found at the scene. Given all that had come to the knowledge of police prior to execution of the arrest warrant, it is clear that they acted reasonably and that appellant’s arrest was lawful.

Appellant also contends that evidence seized following his arrest was subject to suppression because the Tennessee police had arrested appellant without obtaining an arrest warrant in Tennessee. Because the arresting officers had received a National Crime Information Center (NCIC) teletype of the Pennsylvania arrest warrant, these NCIC printouts were of sufficient reliability to establish probable cause for arrest without additional warrant. See: Commonwealth v. Evans, 343 Pa.Super. 118, 128-129, 494 A.2d 383, 388 (1985); Commonwealth v. Riley, 284 Pa.Super. 280, 285-286, 425 A.2d 813, 815-816 (1981).

Appellant next contends that the trial court allowed the Commonwealth, over objection, to refer to a note which Heckman had written to herself in which she detailed the method which appellant intended to use in robbing the bank. This was error, appellant argues, because the note had not been disclosed during pre-trial discovery. The trial court determined that the prosecutor had been unaware of the note prior to trial; and, therefore, granted the defense a short continuance to investigate the same and prepare a response. A trial court has broad discretion in choosing an appropriate remedy for a discovery violation. See: Commonwealth v. Williams, 389 Pa.Super. 489, 493-494, 567 A.2d 709, 711 (1989). See also: Commonwealth v. Gordon, 364 Pa.Super. 521, 540, 528 A.2d 631, 641 (1987), allocatur denied, 517 Pa. 621, 538 A.2d 875 (1987); Commonwealth v. Palmer, 319 Pa.Super. 56, 58, 465 A.2d 1050, 1052 (1983). Pa.R.Crim.P. 305 E provides that:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

By granting a short continuance, the trial court properly exercised its discretion to avoid any prejudice to appellant. The late production of the letter, therefore, does not warrant the grant of a new trial. See: Commonwealth v. Jacobs, 501 Pa. 139, 460 A.2d 728 (1983) (continuance granted where it was ascertained during trial that Commonwealth had failed to disclose identity of eyewitness); Commonwealth v. Smith, 490 Pa. 329, 416 A.2d 494 (1980) (new trial not required when Commonwealth failed to disclose witness identity until mid-trial where defendant given time to prepare and no prejudice shown).

Similarly, the trial court did not err in allowing the Commonwealth to call Joseph Tamandl and Sandra Watras as rebuttal witnesses even though their identities had not been disclosed prior to trial. The admission of rebuttal testimony is within the discretion of the trial court. Commonwealth v. Mathis, 317 Pa.Super. 362, 370, 464 A.2d 362, 367 (1983). The provisions of Pa.R.Crim.P. 305 require the Commonwealth to disclose the identity of eyewitnesses. There is no comparable provision which requires the Commonwealth to disclose rebuttal witnesses who are not eyewitnesses. The Commonwealth is not required to disclose the names of all witnesses. See: Commonwealth v. Colson, 507 Pa. 440, 463, 490 A.2d 811, 823 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986); Commonwealth v. Bey, 294 Pa.Super. 229, 237, 439 A.2d 1175, 1179 (1982).

Finally, appellant advances a multi-faceted argument which challenges numerous discretionary aspects of sentencing. However, he has failed to comply with Pa.R. A.P. 2119(f), which requires that a concise statement of the reasons relied upon for allowance of such a review be included in his appellate brief. The Commonwealth has objected to this defect in appellant’s procedure and asks that we deny review of these sentencing issues on appeal. We are constrained to agree. The Commonwealth’s position is well taken. See: Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc). Our own review of the sentencing proceedings, moreover, confirms that there is no substantial issue regarding the appropriateness of the sentence.

The judgment of sentence is affirmed.

POPOVICH, J., files a concurring opinion.

POPOVICH, Judge,

concurring:

While I join the majority’s conclusion that John Hall was not serving as an agent of the Commonwealth when he elicited appellant’s “jailhouse confession” and conveyed it to the authorities, I believe this conclusion resolves the suppression issue and further discussion is unnecessary. See Commonwealth v. Rhoades, 364 Pa.Super. 54, 527 A.2d 148 (1987), allocatur denied, 521 Pa. 611, 557 A.2d 343 (1989). Accordingly, I believe the majority’s citation to Illinois v. Perkins, — U.S. -, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990), is misleading under these facts.

Resolving both the Fifth and Sixth Amendment arguments, the majority found persuasive: (1) that John Hall, appellant’s prison mate, was not acting at the behest of the police when he obtained appellant’s “jailhouse confession;” and (2) that he was not promised favorable treatment for giving testimony against appellant. To that, I will add two additional observations. First, the record indicates that John Hall initiated communications with the District Attorney’s office vis a vis a letter indicating that he wished to speak with the person handling appellant’s prosecution. (N.T. suppression hearing of September 18, 1987, at 29). Second, nothing can be gleaned from the record to conclude that Hall was placed strategically in the prison so as to elicit a confession. In fact, Hall’s cell was on a different tier in the prison. (N.T. 392-95, 400-03). As such, I agree with the majority’s conclusion that the informant’s legal status was no different than any other prisoner who may have elicited defendant’s “jailhouse confession.”

With respect to both the Fifth and Sixth Amendment arguments, the fact that the informant was acting on his own initiative is dispositive. See Rhoades, 527 A.2d 148. We need not inquire into the nuances of the differing standards of “interrogation” and “deliberate elicitation” under the Fifth and Sixth Amendments, since instantly we do not have the “state action” necessary to invoke the protections of either amendment. Compare United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (deliberate elicitation found where the State intentionally creates a situation likely to induce defendant to make incriminating statements), with, Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985) (Sixth Amendment not violated when, by luck or happenstance the State obtains incriminating statements), United States v. Hicks, 798 F.2d 446 (11th Cir.1986), cert. denied, 479 U.S. 1035, 107 S.Ct. 886, 93 L.Ed.2d 839 (1987) (despite fact that informant worked as a government informant in the past, no Sixth Amendment problem where cellmate informant was not deliberately planted to elicit confession), and, Commonwealth v. Rhoades, supra 364 Pa.Super. at 57, 527 A.2d at 150 (following Hicks).

Once we conclude that Hall was not serving as an agent for the Commonwealth, our analysis should end. The majority’s citation to Perkins is misleading in that it runs counter to our conclusion that the informant’s legal status was no different from any other prisoner acting on his or her own initiative. We must remember that Perkins stands for the narrow proposition that “an undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response.” Perkins, 110 S.Ct. at 2399 (emphasis added). Consequently, our conclusion that Hall was not serving as an agent for the Commonwealth forecloses all need to reach the question of whether a confession to an undercover state agent invokes the protections of the Fifth and Sixth Amendments. Accordingly, to the extent the majority embraces the Perkins doctrine under these facts, I concur only in finding that the confession was competent evidence under the theory that Hall was not serving as an agent for the Commonwealth.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 3921.

      . 18 Pa.C.S. § 2705.

      . For purposes of sentencing, the crimes of theft and recklessly endangering another person were merged with the crime of robbery.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Tamandl testified to procedures in the prison, and Watras rebutted appellant’s alibi evidence.

      . We have also rejected the following issues raised by appellant:
      1. Whether the trial court erred in denying appellant’s motion for change of venue?
      2. Whether the trial court erred in refusing to grant a mistrial based on references to drug use by appellant?
      3. Whether the trial court erred in permitting testimony regarding appellant’s prior criminal record?
      4. Whether the trial court erred in failing to permit appellant's testimony to be re-read to the jury?
      5. Whether appellant was denied effective assistance of counsel as a result of trial counsel’s failure to make a timely motion to dismiss pursuant to Rule 1100?
      These issues have been fully discussed and correctly decided in the opinion authored by the trial court.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    581 A.2d 645
    COMMONWEALTH of Pennsylvania v. William DiSABATINO, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1990.
    Filed Oct. 22, 1990.

      Rolfe C. Marsh, Media, for appellant.
    Vram Nedurian, Jr., Asst. Dist. Atty., Newtown Square, for Com., appellee.
    Before CAVANAUGH, WIEAND and HUDOCK, JJ.
   WIEAND, Judge:

William DiSabatino was tried by jury and was found guilty of possession of a controlled substance, possession of a controlled substance with intent to deliver and possession of drug paraphernalia. Post-trial motions were denied, and DiSabatino was sentenced to serve concurrent terms of imprisonment of not less than three (3) years nor more than ten (10) years for possession of a controlled substance with intent to deliver and of not less than six (6) months nor more than one (1) year for possession of drug paraphernalia. His conviction for possession of a controlled substance was held to merge for purposes of sentencing. On direct appeal, DiSabatino argues that (1) his statements to police admitting that the drugs found in his home were intended for sale should not have been received because the Commonwealth failed to establish the corpus delicti of the crime of possession of a controlled substance with intent to deliver; and (2) in the absence of these statements, which should not have been admitted at trial, the evidence was insufficient to sustain his conviction for possession with intent to deliver. Finding no merit in these contentions, we affirm the judgment of sentence.

The facts upon which appellant was convicted have been stated succinctly in the trial court’s post-trial opinion as follows:

On January 8, 1989 a search of the Defendant’s residence was conducted by a combined Drug Task Force consisting of Upper Chichester Police and a Detective from the Delaware County Criminal Investigation Division pursuant to the issuance of a search warrant. Among items seized were a large plastic bag containing twenty (20) smaller bags of PCP, the large bag found in a freezer compartment of the refrigerator in the kitchen of the home. Two (2) packs of cigarette papers were found in the living room and one (1) box of plastic freezer bags were located on the kitchen table.
When the police arrived at the premises, the Defendant was not at home and only his wife was present. The Defendant arrived shortly thereafter and was placed under arrest. The Defendant told the police officers that the contraband was his and that his wife knew nothing of the presence of the drugs in the premises. The Defendant also made several other statements admitting possession of the PCP and [his] intention to deliver the substance to other persons.

Appellant’s request for a limited review of the evidence to determine its sufficiency to sustain the jury’s verdict is inappropriate. “It is well settled ... that in determining the sufficiency of the evidence to support the verdict, we are required to consider all evidence actually received, whether the trial court’s rulings on evidence were correct or incorrect.” Commonwealth v. Pankraz, 382 Pa.Super. 116, 119-120, 554 A.2d 974, 976 (1989). See also: Commonwealth v. Manhart, 349 Pa.Super. 552, 556, 503 A.2d 986, 988 (1986); Commonwealth v. Nelson, 320 Pa.Super. 488, 494, 467 A.2d 638, 641 (1983); Commonwealth v. Minnis, 312 Pa.Super. 53, 55, 458 A.2d 231, 232 (1983). The evidence received by the trial court in this case was that police had discovered twenty (20) plastic bags containing PCP, whose ownership appellant admitted to be for purposes of resale. This evidence was sufficient to sustain the conviction for possession of a controlled substance with intent to deliver.

Moreover and in any event, appellant’s inculpatory statement was properly received in evidence. It is correct, as appellant contends, that “a criminal conviction may not be based on the extra-judicial confession or admission of the defendant unless it is corroborated by independent evidence establishing the corpus delicti.” Commonwealth v. Ware, 459 Pa. 334, 365, 329 A.2d 258, 274 (1974). See also: Commonwealth v. Smallwood, 497 Pa. 476, 484, 442 A.2d 222, 225 (1982); Commonwealth v. May, 451 Pa. 31, 32, 301 A.2d 368, 369 (1973). Thus, before a defendant’s confession or admission may be introduced into evidence, the Commonwealth must offer independent evidence establishing that a crime has in fact been committed. Commonwealth v. Moore, 466 Pa. 510, 513, 353 A.2d 808, 809 (1976). See also: Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980); Commonwealth v. Palmer, 448 Pa. 282, 285-286, 292 A.2d 921, 922 (1972). “The grounds on which the [corpus delicti] rule rests are the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed____” Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940). See also: Commonwealth v. Moore, supra 466 Pa. at 513-514, 353 A.2d at 809; Commonwealth v. Ware, supra.

Appellant argues that the Commonwealth proved a corpus delicti only for the crime of possession of a controlled substance and not for possession with intent to deliver. However, where two crimes are closely related and have arisen out of the same transaction, the establishment of the corpus delicti for one of them is sufficient to permit a receipt of the defendant’s admission or confession even though it implicates him in the other crime as well. In Commonwealth v. Stokes, 225 Pa.Super. 411, 311 A.2d 714 (1973), the defendant had been charged with the misdemeanor of pointing a firearm at police officers and with attempted murder. At trial, the Commonwealth introduced the defendant’s statement that he had pulled the trigger but that the gun had not fired. The defendant argued that this statement should not have been received because the Commonwealth had established the corpus delicti only for the firearms offense and not for attempted murder. The Superior Court rejected this argument, reasoning as follows:

In the present case, when the Commonwealth proved that appellant pointed a rifle at the officers, it established (at least prima facie) that appellant had committed the crime of pointing a firearm. Appellant’s statement thereupon became admissible. It is true that the statement did more than corroborate the proof of the crime of pointing a firearm; by adding the fact that appellant had pulled the trigger, it supplied the additional proof needed to establish that appellant had also committed the crime of attempt with intent to kill. This fact, however, is no reason to exclude the statement. The two crimes charged arose from a single transaction, and had in common the element of pointing a firearm at someone. Perhaps if the two crimes were distinct, in time or nature or both, the case would be different; whether it would need not be decided. As it is, by proving the crime of pointing a firearm, the Commonwealth provided sufficient protection against “the hasty and unguarded character ... often attached to confessions”, Commonwealth v. Turza, supra at 134, 16 A.2d at 404, to entitle it to offer the confession of attempt with intent to kill.

Commonwealth v. Stokes, supra, 225 Pa.Super. at 414-415, 311 A.2d at 715-716. See: Commonwealth v. Rieland, 324 Pa.Super. 115, 471 A.2d 490 (1984) (defendant’s confession to charges of burglary and conspiracy was admissible even though Commonwealth established corpus delicti only for burglary and introduced no independent evidence of criminal agreement); Commonwealth v. Steward, 263 Pa.Super. 191, 397 A.2d 812 (1979) (confession of defendant that he shot police officer and intended to rob him was admissible in prosecution for aggravated assault and attempted robbery where Commonwealth established only corpus delicti for aggravated assault, and there was no independent evidence of an attempted robbery).

Thus, the law is that “[w]here a defendant’s confession relates to two separate crimes with which he is charged, and where independent evidence establishes the corpus delicti of only one of those crimes, the confession may be admissible as evidence of the commission of the other crime. This will be the case only where the relationship between the two crimes is sufficiently close to ensure that the policies underlying the corpus delicti rule are not violated.” Commonwealth v. Tessel, 347 Pa.Super. 37, 46, 500 A.2d 144, 148-149 (1985). In Tessel, the Court held that upon proof of the corpus delicti for theft, defendant’s confession was admissible as evidence that he had committed not only a theft but also a burglary.

As applied to the instant case, it seems clear that the crimes of possession of a controlled substance and possession with intent to deliver are closely related. Indeed, both share the common element of possession. Inasmuch, therefore, as the charges arose out of the same incident, there was no good reason for excluding appellant’s inculpatory statement that he had intended to sell the packaged PCP found in his residence. Once his possession of the drugs had been independently established, there no longer existed a danger that a confession would lead to a conviction where no crime had been committed. Under similar circumstances, the Superior Court reasoned in Commonwealth v. Daniels, 281 Pa.Super. 334, 422 A.2d 196 (1980), as follows:

[Ejven if it is assumed, arguendo, that the Commonwealth has only established the corpus delicti of possession of a controlled substance as opposed to possession with intent to deliver, the statement was properly admitted. In Commonwealth v. Stokes, 225 Pa.Super. 411, 415, 311 A.2d 714, 716 (1973), the court enunciated the rationale supporting the corpus delicti rule by noting that:
[T]he Commonwealth provided sufficient protection against ‘the hasty and unguarded character____often attached to confessions.’
Citing Commonwealth v. Turza, supra, at 134, 16 A.2d at 404.
In Stokes the Commonwealth established the corpus delicti of one of the two offenses charged. The offenses arose from the same transaction and contained a common element. The court held that this was sufficient to allow admission of the defendant’s confession to both offenses, since there was independent proof that a crime had been committed by someone.
In the case at bar, the Commonwealth, at the very least, provided the corpus delicti of possession of a controlled substance. Appellant’s confession was properly [received].

Id. 281 Pa.Super. at 340-341, 422 A.2d at 199 (footnotes omitted).

Appellant argues that despite the close relationship between the crimes of possession and possession with intent to deliver, there exists, under the circumstances present in this case, a substantial danger that he admitted to selling drugs in order to obtain his wife’s release from custody, even though the crime of possession with intent to deliver had not been committed. We reject this contention. The purpose of the corpus delicti rule is to guard against a conviction based upon a confession where no crime has been committed. Instantly, the Commonwealth independently established that a crime, possession of a controlled substance, had been committed. Appellant’s statement regarding his intention to deliver the controlled substance, under these circumstances, was properly admitted into evidence.

The judgment of sentence is affirmed.


author: ROWLEY, Judge:

text:
    581 A.2d 649
    Debbie L. DIEROLF, Appellant, v. Edwin W. SLADE, Jr., D.M.D., James L. Tamaroff, D.D.S., Ann M. Showan, M.D., Doylestown Hospital, and John or Jane Doe R.N., L.P.N., Anesthetist or Technician.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1990.
    Filed Oct. 22, 1990.

      Yale F. Edeiken, Allentown, for appellant.
    John J. Hart, Doylestown, for appellee Slade.
    David C. Federman, Philadelphia, for appellee Showan.
    Before ROWLEY, McEWEN and CERCONE, JJ.
   ROWLEY, Judge:

This is an appeal by Debbie L. Dierolf from a judgment entered against her and in favor of appellees, Edwin W. Slade, Jr., D.M.D., Ann M. Showan, M.D., and Doylestown Hospital, defendants in a medical malpractice action.

Appellant underwent oral surgery to correct a congenital deformity of her jaw. The day after the surgery, appellant discovered she had a dropped foot due to a compression of the peroneal nerve in her leg. Appellant brought an action against Edwin W. Slade, Jr., D.M.D., James L. Tamaroff, D.D.S., Ann M. Showan, M.D., Doylestown Hospital, and John or Jane Doe R.N., L.P.N., Anesthetist or Technician, alleging medical malpractice. Specifically, appellant alleged that appellees failed to properly pad, position, restrain, or monitor her body during surgery. The jury returned a verdict in favor of appellees, judgment was entered in favor of the appellees, and appellant filed the instant appeal from that judgment.

On appeal, appellant argues that the trial court erred in: excluding the testimony of Dr. Cook; limiting the testimony of Dr. Shane; and refusing to grant a new trial because the verdict was against the weight of the evidence. Based upon our thorough review of the record and consideration of the arguments presented, we affirm the judgment.

Appellant first argues that the trial court erred by excluding the testimony of Dr. Cook. In his expert report, Dr. Cook wrote:

I spoke with a colleague who practices podiatry about this injury. I was surprised to learn it is a very common problem and it can be avoided with care. It has also been reported that when early signs of perineal [sic] nerve injury occur, permanency of sequellae can be avoided with a quick response, by repositioning and removing the pressure on the nerve.

(TT 1-47). Appellant asserts that, as an expert medical witness, Dr. Cook was entitled to base his opinion on information he received from colleagues or from medical literature. The trial court has adequately discussed and correctly decided this issue:

Dr. Cook’s testimony represented not his own opinion but rather that of a colleague and as such, was inadmissible opinion hearsay. The general rule is that medical witnesses are permitted to express opinions on medical matters based, in part, upon reports of others which are not in evidence, but which the expert customarily relies upon in the practice of his profession. Commonwealth v. Daniels, 480 Pa. 340, 347-8, 390 A.2d 172, 176 (1978) and cases cited.
Here, however, the doctor was expressing his personal reactions to a report of an unnamed podiatrist rather than his own opinion. We believe such testimony was properly excluded. Accord: Cooper v. Burns, 376 Pa.Super. 276, 288, 545 A.2d 935, 940-1 (1988) [alloc, denied, 522 Pa. 619, 563 A.2d 888 (1989) ] (testifying expert not permitted to read herniated disc diagnosis made by an out of court doctor).

(TC Op. 2/1/1990 at 4-5).

The trial court had an additional ground for excluding Dr. Cook’s testimony: he was not qualified as an expert. Dr. Cook is an orthodontist who does not perform oral surgery. Appellant points out that Dr. Cook discusses surgery with the oral surgeons, has observed oral surgeries in the past, and has testified as an expert for the defense in several medical malpractice cases, (TT 1-54-56). However, Dr. Cook never performed surgery, never observed a peroneal nerve injury, is not a neurologist, is not board certified, and is rarely present in the operating room. As the trial court noted, Dr. Cook

had not demonstrated sufficient expertise in nerve injuries to the leg or surgical procedures to be able to express an opinion about body positioning and padding during surgery____ Dr. Cook had neither recent clinical experience in operating room procedures nor training in an area of medicine that would satisfy the requirements for qualification.
As stated in Dambacher v. Mallis, 336 Pa.Super. 22, 42-3, 485 A.2d 408, 418-9 (1984) [appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985) ] if a witness possess neither experience nor education in the subject matter under investigation, he should be found not qualified.

(TC Op. 2/1/1990 at 3-4). We agree with the trial court's discussion and disposition of this issue and find no merit to appellant’s argument.

Appellant next argues that the trial court improperly limited the testimony of Dr. Shane by precluding Dr. Shane from answering the following question:

Doctor, do you have an opinion to a reasonable degree of medical certainty as to who’s responsiblé for the plaintiff’s safety in an operating room?

(TT IV-31, 32). Appellant argues that, by sustaining the objections to this question, the trial court prevented Dr. Shane “from amplifying or explaining his opinion by pinpointing the responsibility of individual personnel in the operating room for the safety and care of the patient.” (Appellant’s Brief p. 20). Appellant asserts that the trial court sustained the objection based on a factual misapprehension that the testimony would be beyond the scope of Dr. Shane’s expert’s report, when, in actuality, the testimony was within the scope of the expert’s report. However, the trial court sustained the objection because the question called for “non-scientific, non-medical testimony____” (TT IV-32).

Appellant also asserts that the trial court sustained the objection based on a legal misapprehension, because Pennsylvania law does not require an expert to be familiar with a particular hospital’s practices in order to testify as to standards of care in routine matters. The trial court has adequately discussed and correctly decided this issue. The trial court sustained the objection because the question called for “non-scientific, non-medical testimony ... and this doctor hasn’t testified he knows anything about the evidence as to the procedures in this hospital.” (TT IV-32) (emphasis added). Although Appellant argues that the trial court should have permitted Dr. Shane to testify as to general standards of care, appellant never laid a foundation for this testimony nor pursued this line of inquiry after the initial objection was sustained. The trial court noted:

When the objections were sustained, plaintiff’s counsel did not thereafter pursue his course from another avenue. Counsel was free to ask Dr. Shane if he was familiar with the procedures at Doylestown Hospital, or if he was familiar with the generally accepted standards of care of hospitals in operating room procedures and how, if at all, they differed from the practice at Doylestown Hospital. We believe that plaintiff has waived her objection to the court’s ruling.

(TC Op. 2/1/1990 at 6). Since appellant laid no foundation for this testimony, we find no error by the trial court.

Lastly, appellant argues that the trial court erred in refusing to grant a new trial because the verdict was against the weight of the evidence. Granting a new trial on the ground that the verdict is against the weight of the evidence is generally committed to the sound discretion of the trial court. Commonwealth v. Sullivan, 372 Pa.Super. 88, 90, 538 A.2d 1363, 1365 (1988), alloc. denied, 521 Pa. 612, 557 A.2d 343 (1989) (citations omitted). Upon review, the test is not whether the appellate court would have decided the case in the same way but, rather, whether the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice and “to make the award of a new trial imperative, so that right may be given another opportunity to prevail.” Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984) (citations omitted).

Appellant argues that, in light of Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1981), an inference of negligence arose once appellant’s testimony was concluded. However neither Jones nor Restatement (Second) of Torts § 328(D)(2) requires that an inference must be drawn. In fact, Restatement (Second) of Torts § 328(D)(2), which discusses res ipsa loquitor, states: “It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.” Citing Gallegor by Gallegor v. Felder, 329 Pa.Super. 204, 478 A.2d 34 (1984) (res ipsa loquitor applied to medical malpractice cases), the trial court correctly concluded:

We found that the jury might reasonably draw an inference either way on this issue and instructed them at length to consider this question on the conflicting evidence of the different witnesses.

(TC Op. 2/1/1990 at 8). In the instant case, appellant presented evidence that her injury was caused by negligence. Appellees presented evidence that they were not negligent. It was the function of the jury to determine the weight to be given to the evidence. The jury’s verdict was not contrary to the evidence it received. Nor did the trial court abuse its discretion in failing to grant a new trial.

Judgment affirmed.

      . James L. Tamaroff, D.D.S., and John or Jane Doe R.N., L.P.N., Anesthetist or Technician were dismissed at the close of plaintiff’s case, and their dismissal has not been raised on appeal.

      . In her statement of the questions involved, appellant also asserts that the trial court erred by not granting a judgment n.o.v.. However, in the argument section of her brief, appellant does not mention why she thinks she is entitled to a judgment n.o.v.. Her argument is limited to a request for a new trial, therefore a request for judgment n.o.v. has been waived.

      . According to appellant, the record indicates that hearsay, and not lack of qualification, is the sole basis for excluding Dr. Cook’s testimony. This is factually incorrect. Appellees objected: “I’m objecting, Your Honor. [Dr. Cook’s] not qualified in oral surgery, neurology, or orthopedics____” The Court responded: "I’m going to sustain the objection of all three counsel for the reasons stated.... ” (TT 1-65).

      . We further note that appellant made no objection at trial to the trial court’s jury instructions on res ipsa loquitor, which stated, in part: "You may infer, although you're not required to do so, that the harm suffered by Miss Dierolf was caused by negligence of a particular defendant....” (TT V-29).


text:
    581 A.2d 652
    Peter BARTER, Appellee, v. PALMERTON AREA SCHOOL DISTRICT, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1990.
    Filed Oct. 24, 1990.

      James A. Wimmer, Palmertown, for appellant.
    Michael A. Henry, Allentown, for appellee.
    Before CAVANAUGH, WIEAND and HUDOCK, JJ.
   WIEAND, Judge:

In this action to recover a deposit made pursuant to the terms of a contract for the sale of real estate, the trial court determined that the seller’s title was unmarketable as a matter of law and entered summary judgment in favor of the buyer for the deposit which he had made. After careful review, we reverse and remand for further proceedings.

Peter Barter is the assignee of Frank J. Horwith, who purchased at public sale, on October 1, 1988, the Delaware School Property on Delaware Avenue in Palmerton, Carbon County. The written agreement contained a provision that if the Palmerton Area School District could not deliver marketable title to the school property, the deposit of $23,-500.00 (ten percent of the purchase price of $235,000.00) would be returned to the purchaser. Alleging that the School District did not have marketable title to the school property, Barter refused to accept a deed and demanded a refund of his deposit. When the refund was not forthcoming, he commenced an action at law to recover the same. The School District filed an answer in which it denied that its title was unmarketable and alleged that Barter had breached the contract by refusing to close. After Barter had filed a reply to the new matter contained in the School District’s answer, he filed a motion for summary judgment. In response, the School District filed an affidavit containing facts not appearing in the pleadings. These facts were not denied by a countervailing affidavit.

The pleadings disclose that the Delaware School consisted of lots 6, 8, 10, 12, 14, 16, 18, 20, 22 and 24 Delaware Avenue (400 x 190) on Plan of Palmer Land Company, a subsidiary of the New Jersey Zinc Company. It was the Palmer Land Company which had developed the Borough of Palmerton, and all titles to land in the Borough chain back to the Palmer Land Company. The school district’s predecessor, the School District of the Township of Lower Towamensing, purchased lots 18, 20, 22 and 24 from Palmer Land Company in June, 1908. The deed, however, was not recorded and is now lost. The remaining lots were purchased from the Palmer Land Company by deeds dated March 26,1921 and August 2, 1927. These deeds were duly recorded.

Unsigned copies of the deeds for lots 18, 20, 22 and 24 were found in the records of Horsehead Industries, Inc., the successor to Palmer Land Company, and were made available to Barter prior to the closing date. Quitclaim deeds were requested and were being prepared when the date of closing arrived. Between 1908 and the date of sale on October 1, 1988, a school building was situated on the lots in question, and subsequently acquired property was enclosed by fencing. The property was used continuously for school purposes without any claims being asserted against the title. Finally, the School District asserted, Barter had refused to accept title for economic reasons and not because of any alleged defect in the title.

A marketable title is one that is free from liens and encumbrances and “which a reasonable purchaser, well informed as to the facts and their legal bearings, willing and ready to perform his contract, would, in the exercise of that prudence which businessmen ordinarily bring to bear upon such transactions, be willing to accept and ought to accept.” 77 Am.Jur.2d Vendor and Purchaser, § 131 (1975). A title is not marketable if it is such that the grantee may be exposed to the hazard of a lawsuit. LaCourse v. Kiesel, 366 Pa. 385, 77 A.2d 877 (1951); Bonebrake v. Koons, 333 Pa. 443, 5 A.2d 184 (1939). However, where there is no color of outstanding title which might prove substantial, and there is no reasonable doubt either at law or in fact concerning the title, the mere possibility of some future litigation concerning it does not prevent the title from being good and marketable. Rice v. Shank, 382 Pa. 396, 115 A.2d 210 (1955).

A break in the chain of the vendor’s title caused by an unrecorded deed which has been lost is calculated to raise the doubts of a reasonably prudent person and, in the absence of explanation, is enough to render his title unmarketable. 77 Am.Jur.2d Vendor and Purchaser, § 151 (1975). See: Ewing v. Plummer, 308 Ill. 585, 140 N.E. 42 (1923); Irving v. Campbell, 121 N.Y. 353, 24 N.E. 821 (1890). However, it has also been held that where the land, for which an unrecorded deed which has been lost or destroyed, has continued in the possession of the vendor for a long period of time, the purchaser may be compelled to accept the title. Wade’s Heirs v. Greenwood, 41 Va. 497 (1843). Moreover, a title depending on adverse possession may constitute a title that is not only good but also marketable. Medusa Portland Cement Co. v. Lamantina, 353 Pa. 53, 44 A.2d 244 (1945); Smith v. Windsor Manor Co., 352 Pa. 449, 43 A.2d 6 (1945).

Appellee contends that the School District cannot acquire title by adverse possession because, being a municipal body having the power of eminent domain, the law presumes that it has acquired title by eminent domain. See: Hoover v. Jackson, 362 Pa.Super. 532, 536 n. 2, 524 A.2d 1367, 1369 n. 2 (1987) (citing Ontelaunee Orchards, Inc. v. Rothermel, 139 Pa.Super. 44, 52-53, 11 A.2d 543, 546-547 (1940)). The presumption, however, can be rebutted by evidence showing that the entry was made other than through exercise of the power of eminent domain. Id. Closely related to adverse possession is the doctrine of a presumptive grant. This doctrine is recognized in Pennsylvania. See: Donegal Township School District v. Crosby, 178 Pa.Super. 30, 35, 112 A.2d 645, 647 (1955). The “doctrine provides that after a great lapse of time and a series of circumstances disclosing the enjoyment of an unchallenged title during such period, the courts will presume whatever grant may be necessary to quiet title.” Id.

In the instant case, a school building had existed for more than seventy-five (75) years on the lots conveyed by the unrecorded deed. The entire school property, moreover, had been enclosed by fencing. The pleadings and the facts recited in appellant’s affidavit disclose that the school district acquired title, not by eminent domain, but by purchase. This is confirmed by the records of the original grantor, who not only acknowledged the conveyance but agreed to give the school district a quitclaim deed for the lots described in the unrecorded deed. It is apparent, therefore, that upon a trial the school district may be able to prove a title which is not only good but marketable as well. In view of the facts now appearing of record, the appellant school district must at least be given an opportunity to prove that its title was good and marketable. It must be given an opportunity to explain the unrecorded deed and establish its title. We hold, therefore, that when the record is viewed in the light most favorable to the non-moving party, as we are required to do, there remain issues of undetermined fact and that the trial court’s summary holding that appellant’s title was unmarketable as a matter of law was erroneous.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . Closing was to be held on November 15, 1988, but time was not made of the essence.

      . The New Jersey Zinc Company and its subsidiary, the Palmer Land Company, are now, by merger, a part of Horsehead Industries, Inc.

      . We were told at argument that these quitclaim deeds were subsequently executed and delivered, and the school property resold.


text:
    581 A.2d 655
    COMMONWEALTH of Pennsylvania v. Danny McKENZIE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 12, 1990.
    Filed Oct. 24, 1990.

      Norris E. Gelman, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, POPOVICH and MONTGOMERY, JJ.

      . If the witness proved to be a hostile witness, appellant may have elected to use the witness’s prior statement for purposes of cross-examining him. See: Commonwealth v. Dancer, 452 Pa. 221, 305 A.2d 364 (1973); Commonwealth v. Barber, 275 Pa.Super. 144, 151-152, 418 A.2d 653, 657 (1980); Commonwealth v. Quartman, 253 Pa.Super. 460, 466-467, 385 A.2d 429, 433 (1978); Commonwealth v. Filer, 249 Pa.Super. 349, 352-353, 378 A.2d 330, 331-332 (1977).

   WIEAND, Judge:

Danny McKenzie was tried by jury and was found guilty of three counts of aggravated assault and one count of possessing an instrument of crime as a result of his spraying shots from an Uzi automatic rifle around a Philadelphia street on the evening of July 29, 1988. Post-trial motions were denied, and McKenzie was given a sentence of imprisonment for aggravated assault and a period of probation for possession of an instrument of crime. On direct appeal, his principal argument is that the trial court erred when, over objection, it quashed a defense subpoena for Robin Watkins, Jr., and thereby deprived him of testimony from an eyewitness present at the time of the shooting.

At or about 9:45 p.m. on July 29, 1988, a gray, Nissan T-top sports car, being driven by appellant, pulled up in front of the Coulston residence at Williams and Weaver Streets in Philadelphia. Seated in the front passenger’s seat was appellant’s girlfriend, Michelle Miller. In the back seat, engaged in argument, were June Coulston and her boyfriend, Edsel “Butch” Conner. When the car stopped and June, crying, stepped out, her brother, Troy, approached the car and asked Butch what had happened. While Troy was standing in the open, passenger doorway, appellant suddenly drove away, with Troy Coulston hanging onto the vehicle. After Troy was able to pull himself into the vehicle, he fought with appellant in an effort to stop the car. The vehicle struck a parked car and turned into Upsal Street before the vehicle came to a stop. As Troy Coulston walked away from the car, he heard Michelle shout, “He got a gun, he got a gun.” Troy then ran back to his home.

As he fled, he saw his friend, Craig Moore, in a white Cadillac. Moore had intended to follow the Nissan, but when he saw Troy returning, he stopped the Cadillac in front of the Coulston residence. When appellant approached with the Uzi, according to Commonwealth evidence, Moore and Coulston ran away in a hail of gunfire. Neither of the running young men was hit; however, Tina McEachin, a child seated in the back seat of her mother’s car, was struck in the back by a bullet which had been fired from the Uzi and which had passed through the rear seat of the car. In all, more than twenty rapid-fire shots had been fired.

Appellant denied that he had done the shooting. His defense was that he, Butch and Michelle had been at Fayette and Sharpnack Streets when they heard gunshots from the vicinity of Weaver Street. The defense had also caused a subpoena to be issued for Robin Watkins, an alleged fifteen year old eyewitness to the shooting. Watkins failed to appear in response to the subpoena, and a bench warrant was issued for his arrest. Defense counsel made an offer of proof, based on a statement obtained from the witness by an investigator, as follows:

What I believe the witness will testify to is that he was on the northwest corner of Weaver and Williams Street at the time of the incident; that he saw, after an argument ensued with the gray Nissan, saw a person get into a white Cadillac parked on Williams Street, make a U-turn, follow the gray Nissan down onto Upsal Street. He would also testify that he saw the Nissan crash into a car on the side of the road on Williams Street, the gray Nissan and that the white Cadillac then made a U-turn on Williams Street, followed that car down along Upsal Street; a few minutes later, the white Cadillac returned, pulled directly in front of 1400 Weaver Street. The operator got out of the car, went to the trunk of the vehicle, opened the trunk, pulled out something, moved to the side of the car and began firing.

Subsequently, the witness’s father appeared and objected to his son’s being forced to testify. The trial judge questioned the witness, heard testimony that was contrary to portions of the offer of proof, and quashed the subpoena over defense objection. Appellant contends that this was error. We agree.

“It is clear that under both our state and federal constitutions, a criminal defendant has a right of compulsory process to obtain witnesses in his favor.” Commonwealth v. Lahoud, 339 Pa.Super. 59, 64, 488 A.2d 307, 310 (1985) (allocatur denied), quoting Commonwealth v. Allen, 501 Pa. 525, 531, 462 A.2d 624, 627 (1983). “The right to compulsory process encompasses the right to meet the prosecution’s case with the aid of witnesses, and the right to elicit the aid of the Commonwealth in securing those witnesses at trial, both of which are fundamental to a fair trial.” Commonwealth v. Jackson, 457 Pa. 237, 243, 324 A.2d 350, 354-355 (1974); Commonwealth v. Lahoud, supra. “Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967). “[The] constitutional right, though fundamental, is not, however, absolute.” Commonwealth v. Jackson, supra 457 Pa. at 243, 324 A.2d at 355. In order to compel the attendance of a witness at trial, it must be shown that the information possessed by the witness is material, i.e., capable of affecting the outcome of the trial, and that it is favorable to the defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982).

The record in the instant case suggests that Watkins had material information. The statement given to the defendant’s investigator was to the effect that Watkins had observed the driver of the white Cadillac go to the trunk of the car, take something out and begin firing. This information was not only material but favorable to the defense; if believed, it tended to confirm that Moore had done the shooting and not appellant.

The Commonwealth presented testimony from witnesses who made positive identifications of appellant as the shooter. The defense presented testimony from Edsel Conner and Michelle Miller who said that appellant had been at the car with them at the time they heard the shots, which they thought were firecrackers. Michelle Miller also testified that, when the Nissan had left the Coulston residence, it had been followed by a white car driven by Craig Moore. Watkins’ testimony would have tended to confirm that it had not been appellant who did the shooting. It would also have contradicted the Commonwealth’s evidence regarding Moore’s location at the time of the shooting.

The trial court, having properly compelled the witness to appear, examined him in the presence of counsel. At that time, the witness confirmed that he had observed the driver of the white Cadillac stop his vehicle, open the trunk, and remove something. This time, however, he said he did not know what the person had done thereafter. Because this was inconsistent with the offer of proof and because the witness now said that he had not observed the driver doing the shooting, the trial court quashed the subpoena and refused to allow the witness to be called by the defense. This was an abuse of discretion. It was not the function of the trial court to determine whether the witness had been truthful and accurate when he gave a statement to the defendant’s investigator. The witness’s credibility was an issue for the jury. It was enough that Watkins had been an eyewitness to the shooting and had supplied appellant’s investigator with information favorable to the defense. Because the witness in this case had information which was relevant and which appeared to be favorable to the defense, the trial court erred when it denied defendant the right to call the witness. This error requires a new trial.

Appellant also contends that the Commonwealth was guilty of prosecutorial misconduct because it offered indirect hearsay testimony and implied by other evidence that he had been a drug dealer. Finally, he contends that his trial counsel was constitutionally ineffective. We have examined these contentions but find no merit therein. Nevertheless, because the court improperly prevented appellant from calling an eyewitness subpoenaed by the defense, we vacate the judgment of sentence and remand for a new trial.

Reversed and remanded for a new trial. Jurisdiction is not retained.

POPOVICH, J., files a Dissenting Statement.

POPOVICH, Judge,

dissenting:

I respectfully dissent from the opinion of the majority. Instantly, the majority, concluding that the lower court abused its discretion when it quashed the defense subpoena of Robin Watkins, determined:

... It was not the function of the trial court to determine whether the witness had been truthful and accurate when he gave a statement to defendant’s investigator. The witness’s credibility was an issue for the jury. It was enough that Watkins had been an eyewitness to the shooting and had supplied appellant’s investigator with information favorable to the defense. Because the witness in this case had favorable information to the defense, the trial court erred when it denied defendant the right to call the witness.

The majority, in so ruling, has misconstrued the lower court’s determination. The court did not assess the credibility of Watkins, but rather, merely recognized that Watkins’ testimony was not favorable to the defense. The fact that Watkins had previously informed the defense investigator that the driver of the white Cadillac had done the shooting is not relevant to the court’s determination of whether to quash the subpoena. Watkins testified, in court, that he did not see the driver of the white Cadillac fire a weapon. Such testimony would have, in fact, refuted appellant’s defense that the driver of the white Cadillac was the “shooter”. Accordingly, it was not an abuse of discretion for the trial court to refuse to compel Watkins’ attendance at trial. United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982).

As a practical matter, the defense could not present Watkins’ prior testimony concerning the shooting, except by declaring Watkins a hostile witness and examining him on his prior inconsistent statement, i.e., calling his own witness a liar. I dare speculate that if defense counsel had put a witness on the stand whose direct testimony contradicted his defense, we would currently be faced with an ineffective assistance of counsel appeal.

Accordingly, I would affirm the decision of the court below.


author: DEL SOLE, Judge:

text:
    581 A.2d 659
    In re ADOPTION OF K.S. Appeal of T.P.D. Natural Father of K.S.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1990.
    Filed Oct. 25, 1990.

      Mark R. Ashton, Paoli, for appellant.
    George A. Priestley, Warminster, for participating party.
    Kenneth R. Williams, Doylestown, for Golden Cradle, participating party.
    Diane D. Welsh, Norristown, for participating party.
    Before OLSZEWSKI, DEL SOLE and HUDOCK, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order declining jurisdiction on forum non conveniens grounds and transferring the underlying custody/visitation action to the courts of the state of Delaware.

As noted by the trial court “the complex and tragic facts surrounding this case were detailed in In Re: Adoption of Stunkard,” 380 Pa.Super. 107, 551 A.2d 253 (1988) wherein this court affirmed a decision refusing to terminate Appellant’s parental rights. For purposes of this appeal it is necessary to recount some of the relevant facts.

The child, who is the subject of the custody dispute, was born on November 15, 1986 in a Philadelphia hospital to a young woman who was a resident of Delaware. The child’s birth mother, without objection from the natural father, who was also a Delaware resident, placed the child for adoption with Golden Cradle, an adoption agency which at that time maintained its principal office in Montgomery County, Pennsylvania. Three days after her birth Golden Cradle placed the child with her pre-adoptive parents, who along with the child traveled back to their home in Delaware where they continue to reside.

Golden Cradle initiated proceedings to secure voluntary relinquishment of parental rights. This action was filed in Montgomery County in accordance with 23 Pa.C.S.A. § 2302(2) which provides that such proceedings may be brought in the court of the county “in which is located an office of an agency having custody of the adoptee or in the county where the agency having placed the adoptee is located.” A decree entered on January 8, 1987 terminated the mother’s rights and awarded legal custody of the child to Golden Cradle in anticipation of her adoption. Immediately after the court entered the decree terminating the birth mother’s rights, the pre-adoptive parents filed a report of intention to adopt the child. Two months later, Appellant, the biological father, filed a petition for custody or visitation of the child. Golden Cradle responded by filing a petition to involuntarily terminate his parental rights. Appellant’s request for custody was stayed pending the outcome of the involuntary termination hearing. Also held in abeyance pending the outcome of the involuntary termination hearing was the birth mother’s request to have vacated the decree terminating her rights. Although the birth mother still strongly favored the adoption of the child, she filed this request reasoning that if the adoption should fail and the pre-adoptive parents were not awarded custody she wished to seek custody over the natural father.

Golden Cradle’s petition for the involuntary termination of Appellant’s parental rights was denied, and this decision was affirmed by the Superior Court. See: In re Adoption of Stunkard, supra. A further request for allowance of appeal to the Pennsylvania Supreme Court was also unsuccessful. In re Adoption of Stunkard, 522 Pa. 597, 562 A.2d 321 (1989).

After the conclusion of the appeal process which foreclosed the child’s adoption, the orphans’ court scheduled hearings on the outstanding petitions. The court decided to initially consider the birth mother’s rights before proceeding further. In September of 1987 the court vacated the order terminating the birth mother’s parental rights, and the natural father filed an emergency petition seeking custody and/or visitation. Because the natural parents’ rights were not terminated and adoption under these circumstances was not possible, the orphans’ court, which has jurisdiction of custody matters as they relate to an adoption by virtue of 20 Pa.C.S.A. § 711, transferred the custody/visitation matter to the family division for disposition.

The family court, which held a conference and ordered the case listed for a full custody hearing, was presented with a motion to transfer jurisdiction to the state of Delaware pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), 42 Pa.C.S.A. § 5341 et seq. This motion, filed by the pre-adoptive parents, was joined in by the birth mother and Golden Cradle. The court’s decision to transfer jurisdiction to Delaware as the more appropriate forum is challenged by Appellant in this appeal.

Appellant objects to the court decision on two bases. He asserts that the pre-adoptive parents did not have standing to participate in the case because they failed to file a petition to intervene. He also maintains that the Pennsylvania court had jurisdiction to make the custody determination under the Interstate Compact on the Placement of Children, (The Compact) 62 P.S. § 761. Both the pre-adoptive parents and the natural mother argue that since Appellant’s reliance on The Compact to support his position that Pennsylvania is the appropriate forum has not been previously presented before the trial court, it should be considered waived for purposes of this appeal. However, as will be stated, even considering each of Appellant’s arguments, we conclude that the trial court did not abuse its discretion in declining to exercise jurisdiction and instead transferring the case to Delaware.

We will begin by addressing Appellant’s initial claim regarding standing. Appellant asserts that the pre-adoptive parents lacked standing to litigate for an award of physical custody once the adoption proceedings had been ruled unsuccessful. In support of his claim, Appellant likens this case to those involving foster parents, wherein the courts have ruled that the relationship implies a warning against a deep emotional involvement with the child. See: Priester v. Fayette County Children and Youth Services, 354 Pa.Super. 562, 512 A.2d 683 (1986).

While we do not agree that parties in the position of pre-adoptive parents can be said to be warned from making an emotional attachment to the child much like a foster parent, we find it unnecessary to examine in detail the pre-adoptive parents’ standing in the custody matter. This case was transferred from the orphans’ court to the family division for resolution of the custody matter after the adoption proceedings had concluded. Although the preadoptive parents were not named parties in the orphans’ court litigation and did not immediately intervene in the custody proceeding, we find these facts to be of no consequence. The appeal in this case has been taken from a court order transferring jurisdiction. The motion to transfer jurisdiction was filed by the pre-adoptive parents, however it was joined in by both Golden Cradle and the birth mother, neither of whom has had their standing challenged by Appellant. Further, as noted by the trial court, in a custody case the court need not be prompted by a party’s motion to transfer a case on forum non conveniens grounds, but instead could act sua sponte. The court’s ability to transfer on its own motion is provided for in 42 Pa.C.S.A. § 5348(b) which states that “a finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or of a guardian ad litem or other representative of the child.”

Finally, with regard to this issue we also note the trial court’s comments that it would have been required to order that the pre-adoptive parents be made parties even if they were not already named parties in the custody suit since they had physical custody of the child. Pennsylvania Rule of Civil Procedure 1915.6 provides:

If the Court learns from the pleadings or any other source that a parent whose parental rights have not been previously terminated or a person who has physical custody of the child is not a party to the action, it shall order that the person be joined as a party.

Finding no merit to the Appellant’s argument that the court’s decision should be reversed because the preadoptive parents lacked standing to raise the matter, we turn now to a discussion of the court’s decision concerning the appropriate forum. As stated, the trial court ruled that the custody of this child would best be determined by the courts of Delaware. The court reasoned that it was within its discretion to determine that it was in the child’s best interest to have the custody determination made by the state of Delaware since it was the “home” state of the child, it was the state where all the parties resided and it was the state with a substantial connection to the child and evidence concerning her present and future welfare. The court also concluded that the purposes of the Uniform Child Custody Jurisdiction Act (UCCJA), 42 Pa.C.S.A. § 5341 et seq., would be fostered by transferring jurisdiction to Delaware.

The UCCJA contains a section concerning “inconvenient forum.” It provides:

(a) General rule.—A court which has jurisdiction under this subchapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
(c) Factors to be considered.—In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(1) If another state is or recently was the home state of the child.
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
(3) If substantial evidence concerning the present or future care, protection, training, and personal relationships of the child is more readily available in another state.
(4) If the parties have agreed on another forum which is no less appropriate.
(5) If the exercise of jurisdiction by a court of this Commonwealth would contravene any of the purposes stated in section 5342 (relating to purposes and construction of subchapter.)

The state of Delaware is most certainly the “home state” of the child as that term is defined in the UCCJA. See 42 Pa.C.S.A. § 5343. Delaware is also the state where the natural parents of the child reside and the persons with whom the child has been living since birth. Under these facts there is evidence to support the trial court’s finding that it is “undisputed” that all information concerning the child’s present and future welfare is in Delaware. One of the stated purposes of the UCCJA is to:

Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this Commonwealth decline the exercise of jurisdiction when the child and his family have a closer connection with another state.

The state with the closer connection to this child is most certainly Delaware. Evidence concerning her present environment and well-being will be found in Delaware, as will witnesses who may relay information on the circumstances and backgrounds of the parties. It has been held that a decision of a court to decline jurisdiction under the UCCJA will not be disturbed absent an abuse of discretion, Joselit v. Joselit, 375 Pa.Super. 203, 209, 544 A.2d 59, 61 (1988), and we find no such abuse of discretion in the instant case.

Despite the obvious connection to the Delaware forum Appellant maintains that the courts of Pennsylvania must retain jurisdiction in this matter under the provisions of The Compact. Because the instant action arises out of a failed adoption where the pre-adoptive parents sought to establish their rights as parents within Pennsylvania’s border, Appellant reasons that the courts of Pennsylvania must comply with the terms of The Compact. He specifically cites to the following language:

The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment, and disposition of the child which it would have had if the child had remained in the sending agency’s state until the child is adopted, reaches majority, becomes self supporting, or is discharged with the occurrence of the appropriate authority. Such jurisdiction shall also include the power to effect or cause the return of the child or its transfer to another location and custody pursuant to law.

62 P.S. § 761 Article V.

Although The Compact clearly provides the courts of Pennsylvania with jurisdiction in this matter, even in relation to a custody proceeding, absent from The Compact is any suggestion that the Pennsylvania courts may not refuse to exercise jurisdiction and instead transfer jurisdiction to a more appropriate forum where the circumstances so require. The ability to decline to exercise jurisdiction in favor of another forum is supported by the stated purpose and policy of The Compact. Article I of The Compact provides: “It is the purpose and policy of the party states to cooperate with each other in the interstate placement of children to the end that: ... (d) Appropriate jurisdictional arrangements for the care of children will be promoted.” 62 P.S. 761. Appropriate jurisdictional arrangements may in some circumstances, such as those presented in the instant case, demand that a case be transferred to another state. The ability to effectuate such a transfer is in keeping with the terms of the UCCJA and enables the Compact and the UCCJA to be read together to provide for consistent results.

The appellate courts of Illinois had an opportunity to consider the relationship between The Compact and the UCCJA in In re Marriage of Slate, 181 Ill.App.3d 110, 129 Ill.Dec. 844, 536 N.E.2d 894 (1989). Therein, the trial court ruled that the state of Washington retained jurisdiction under The Compact since that state had appointed a legal guardian of three children whose custody was sought by their mother in Illinois. The children who lived in Washington foster homes were declared dependent by the state of Washington. That state later placed the children with their paternal aunt in Illinois and licensed her as a foster parent and later appointed her the children’s permanent guardian. Nearly three years later the children’s mother sought custody in relation to her pending divorce proceedings which were conducted in Illinois where the mother resided. With regard to jurisdiction, the Illinois court ruled that The Compact should be strictly construed and concluded that Washington retained jurisdiction.

In considering this ruling, the appellate court noted that the UCCJA permits some discretion in a trial court’s determination of its jurisdiction “to ensure that the litigation takes place in the forum where the ties between the State and the child and his family are closest.” Id. at 114, 129 Ill.Dec. at 846, 536 N.E.2d at 896. The court also remarked that the “overall purpose of the [Compact] is to facilitate the cooperation between states for the interstate placement of children.” Id. at 114, 129 Ill.Dec. at 847, 536 N.E.2d at 897. The court ruled that the lower court’s decision, declining the exercise of jurisdiction in deference to the court’s of Washington, should be reversed. Since Illinois held the childrens’ relevant school records and was the state where witnesses and evidence regarding custody or visitation would be located, it had superior access to relevant information and was the more appropriate forum. The court found that it was required to look at the present and future circumstances, not merely to the past ties to Washington which occurred because of that court’s dependency declaration in the matter.

Likewise in the instant case, the trial court was wise to not focus solely on its relationship to the underlying adoption proceeding in this Commonwealth which would confer jurisdiction under The Compact. The court properly examined the facts of the case and sought out a determination which would best provide for the child’s interest. We find that the trial court’s decision transferring jurisdiction to Delaware was in keeping with the purposes of both The Compact and the UCCJA. Delaware is clearly the jurisdiction with the greatest ties to the child and the parties seeking custody. Delaware contains information concerning the past years of the child’s life and those who seek her custody. We find no abuse of discretion in the trial court’s decision declining to exercise jurisdiction and transferring the matter to the courts of Delaware.

The decision we reach today is made in keeping with the provisions of our Federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A. In Barndt v. Barndt, 397 Pa.Super. 321, 580 A.2d 320 (1990) it was noted that the principle purposes of the PKPA was “To protect the right of a decree issuing state to exercise exclusive continuing jurisdiction over its child custody orders in certain cases, and to channel custody litigation into the court having continuing jurisdiction by requiring states to give full faith and credit to the custody decrees of states retaining jurisdiction and preventing the issuance of competing decrees.” 397 Pa.Super. at 331, 580 A.2d 325. Citing to the PKPA, the Barndt court remarked:

Finally, and most importantly, the PKPA creates a separate basis for exclusive continuing jurisdiction in the state which issued the original decree. So long as the original decree state continues to have jurisdiction under its own law, and remains the residence of the child or any contestant, it has exclusive continuing jurisdiction over all future custody actions involving that child. 28 U.S.C. § 1738A(c)(2)(E) and (d).

(397 Pa.Super. 333-334, 580 A.2d 326.)

Although this Commonwealth placed legal custody of the child with Golden Cradle, Pennsylvania does not maintain exclusive jurisdiction under the PKPA. Exclusive continuing jurisdiction under the PKPA is available only so long as the state which issued the original decree remains the residence of the child or any contestant. In this case, neither the child nor any party seeking custody is, or ever was, a resident of Pennsylvania. Thus, our decision to affirm the trial court’s transfer of the custody action to the courts of Delaware, where the children and the parties have resided and continue to reside, is not in contravention of federal law.

Finding support for the trial court’s decision to decline to exercise its jurisdiction in favor of the state of Delaware, we affirm the trial court order.