text:
    455 A.2d 700
    COMMONWEALTH of Pennsylvania v. Johnnie Lee RUTH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 20, 1982.
    Filed Jan. 21, 1983.
    Petition for Allowance of Appeal Denied April 15, 1983.

      William A. Fetterhoff, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

Johnnie Lee Ruth was tried by jury and was found guilty of murder in the third degree in connection with the bedroom slaying of his wife. On direct appeal from the judgment of sentence, he contends (1) that the Commonwealth’s evidence was insufficient to prove his sanity at the time of the killing and (2) that the trial court erred in allowing the prosecution to make a pre-trial examination of edited, defense, psychiatric reports. We find no merit in these contentions and, accordingly, affirm the judgment of sentence.

In reviewing the sufficiency of the evidence the test is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982); Commonwealth v. Goldblum, 498 Pa. 455, 466, 447 A.2d 234, 240 (1982); Commonwealth v. Horner, 497 Pa. 565, 568, 442 A.2d 682, 683 (1982); Commonwealth v. Zenyuh, 307 Pa.Super. 253, 259-260, 453 A.2d 338, 341 (1982); Commonwealth v. Fortune, 305 Pa.Super. 441, 447, 451 A.2d 729, 732 (1982). Moreover, the evidence must be read in a light most favorable to the Commonwealth as verdict winner, which is entitled to all reasonable inferences arising from such evidence. Commonwealth v. Smith, 484 Pa. 71, 73-74, 398 A.2d 948, 949 (1979); Commonwealth v. Stasiak, 305 Pa.Super. 257, 263, 451 A.2d 520, 523 (1982); Commonwealth v. Alston, 269 Pa.Super. 573, 576, 410 A.2d 849, 851 (1979).

The body of the decedent was found by police, who were responding to a disturbance call, on a bed in the presence of appellant. Her body contained 42 stab and chop wounds apparently caused by one or more sharp instruments. Also found at the scene and containing blood stains were a butcher knife, a hatchet, and a sharpened screw driver. Neighbors testified that they had heard the decedent crying for help at a time when she and appellant were alone in their apartment. There was also evidence showing a history of physical abuse inflicted by appellant upon his wife.

Appellant, an epileptic, pleaded insanity. Specifically, the defense contended that appellant had suffered a psycho-motor seizure at the time of the assault upon his wife. Defense witnesses testified to prior seizures, and psychiatric and psychological opinions attributed legal insanity to appellant at the time of the killing. The Commonwealth countered with testimony from lay witnesses who said that appellant seemed normal and coherent immediately following the killing. There was also evidence that appellant had not suffered epileptic seizures during the several months preceding his wife’s death. Finally, there was testimony that appellant had threatened his wife earlier on the day on which the killing occurred.

In cases such as this where there is sufficient evidence to raise the issue of insanity, the burden is on the Commonwealth to establish the defendant’s sanity beyond a reasonable doubt. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980); Commonwealth v. Hicks, 483 Pa. 305, 396 A.2d 1183 (1979); Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974). However, “[tjhe law in Pennsylvania is still the M’Naghten test. It is not intended to separate the emotionally disturbed defendants from the emotionally healthy. Rather, it is intended to include defendants, both disturbed and healthy, among those who are held criminally responsible.” Commonwealth v. Demmitt, 456 Pa. 475, 481, 321 A.2d 627, 631 (1974). See also: Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982).

Moreover, while psychiatric testimony is of probative value, it is within the province of the jury to determine the credibility and weight of such evidence. Commonwealth v. Vogel, 468 Pa. 438, 447-448, 364 A.2d 274, 279 (1976); Commonwealth v. Demmitt, supra, 456 Pa. at 481, 321 A.2d at 631; Commonwealth v. McCusker, 448 Pa. 382, 391, 292 A.2d 286, 291 (1972). Indeed, “[ejvidence on a defendant’s mental condition can just as credibly come from the testimony of lay witnesses ‘concerning the defendant’s actions, conversations and statements at the time of the killing from which the jury could find that he knew what he was doing when he killed and knew it was wrong.’ Commonwealth v. Demmitt, supra, 456 Pa. at 483, 321 A.2d at 632; Commonwealth v. Zlatovich, 440 Pa. 388, 391, 269 A.2d 469, 471 (1970).” Commonwealth v. Vogel, supra 468 Pa. at 448, 364 A.2d at 279.

Looking at the evidence in a light most favorable to the Commonwealth, it seems clear that sufficient evidence was presented from which the jury could have found beyond a reasonable doubt that appellant was legally sane when he killed his wife.

Pa.R.Crim.P. 305 C(l)(b) provides:

Notice of Insanity or Mental Infirmity Defense: A defendant who intends to offer at trial the defense of insanity, or a claim of mental infirmity, shall, at the time required for filing an omnibus pretrial motion under Rule 306, file of record notice signed by the defendant or the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense. Such notice shall contain specific available information as to the nature and extent of the alleged insanity or claim of mental infirmity, the period of time which the defendant allegedly suffered from such insanity or mental infirmity, and the names and addresses of witnesses, expert or otherwise, whom the defendant intends to call at trial to establish such defense.

Pa.R.Crim.P. 305 C(2) provides further as follows:

(2) Discretionary With the Court:

In all court cases, if the Commonwealth files a motion for pretrial discovery, the court may order the defendant, subject to the defendant’s rights against compulsory self-incrimination, to allow the attorney for the Commonwealth to inspect and copy or photograph any of the following requested items, upon a showing of materiality to the preparation of the Commonwealth’s case and that the request is reasonable:
(a) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief, or which were prepared by a witness whom the defendant intends to call at the trial, when results or reports relate to the testimony of that witness, provided the defendant has requested and received discovery under paragraph B(l)(e).

Paragraph B(l)(e) requires the Commonwealth, upon request of a defendant, to permit defendant’s attorney to inspect and copy:

“results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant, which are within the possession or control of the attorney for the Commonwealth.”

In the instant case, defense counsel gave notice to the District Attorney that “Johnnie Lee Ruth was suffering from two mental disorders: temporal lobe epilepsy and paranoid schizophrenia.” No other information pertaining to the alleged insanity defense was given, and Commonwealth requests therefor were refused. Meanwhile, defense counsel had requested discovery from the Commonwealth under Rule 305 B(l)(e). From a form request for discovery, however, defense counsel carefully erased the reference to “mental” examination. Specifically, in paragraph 5 of his discovery request, defense counsel asked for:

“5. results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical ('or mental’ was erased) examination of the defendant, which are within the possession or control of the attorney for the Commonwealth.”

Pursuant to this request, the defense was given copies of scientific reports and pathological examination reports available to the Commonwealth. Nevertheless, the defense refused the Commonwealth’s requests to examine psychiatric and psychological reports relied upon by the defense to prove insanity. Therefore, the Commonwealth requested and the court directed defense counsel to produce copies of written reports which had been prepared by the defense psychiatrist and psychologist. When the defense objected that the reports contained statements which had been made-by the defendant, the court required that the reports be delivered to the court which, before delivering the same to the Commonwealth, edited them by removing therefrom any inculpatory or other statements made by appellant to his examiner.

Appellant contends that the court erred by allowing such discovery by the Commonwealth. We disagree. We reject emphatically the contention that defense counsel could insulate from discovery the written reports of defense psychiatrists by the expedient of eliminating from his Rule 305 B(l)(e) request for discovery any reference to “mental” examinations. Such a narrow interpretation of Rule 305 C(2)(a) is unwarranted and is contrary to the expressed intent thereof. Indeed, such an interpretation would defeat the purpose of discovery. The comments to Rule 305 explain: “In order to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery before trial should be as full and free as possible consistent with protection of persons, effective law enforcement, the adversary system, and national security.” (emphasis supplied). Our interpretation of Rule 305 will enhance the right of discovery and encourage bench and bar alike to place a liberal interpretation on this rule to achieve the many advantages of full discovery.

There was neither violation of these discovery rules nor prejudice to appellant by the order allowing the representatives of the Commonwealth to examine reports of mental and psychological examinations made of appellant. Although appellant contends that it was error to allow the Commonwealth to examine reports containing potential inculpatory statements made to his doctors, he concedes that the trial court edited the reports and is unable to direct us to any privileged or improper matter that was given to the Commonwealth or any violation of appellant’s privilege against self-incrimination. Our own examination likewise discloses no prejudice.

For these reasons, we conclude that the trial court properly exercised the discretion which had been vested in it by Rule 305. Its order allowing the Commonwealth to examine edited copies of defense psychiatric and psychological reports did not constitute error.

The judgment of sentence is affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    455 A.2d 704
    Anahid HILBERT and Michael F. Hilbert v. Jacob M. KATZ, Appellant.
    Superior Court of Pennsylvania.
    Argued March 2, 1982.
    Filed Jan. 21, 1983.
    Petition for Allowance of Appeal Denied May 31, 1983.

      Howard A. Davis, Philadelphia, for appellant.
    Eugene A. Spector, Philadelphia, for appellees.
    Before WIEAND, BECK and HOFFMAN, JJ.
   PER CURIAM:

Anahid Hilbert sued Jacob Katz in trespass for injuries sustained when Katz’s automobile hit her vehicle in a collision in Hatboro on May 4, 1978. At a jury trial in 1980 a verdict was returned in favor of Katz and Hilbert filed post trial motions for judgment non obstante veredicto and a new trial. In July 1981 the lower court granted the appellee Hilbert’s motion for a new trial, “because of the uncertainty as to the basis for the verdict” and from this order Katz now appeals.

At trial it was established that Hilbert was travelling west on Montgomery Avenue in Hatboro Township, just west of the intersection of Montgomery Avenue and York Road. At the time of the collision Katz was entering Montgomery Avenue from the driveway of a bank located on the southside of Montgomery, and was turning eastward. The front left of his car hit the rear left of Hilbert’s car. Each party claims to have beén on the correct side of an imaginary line on Montgomery Avenue that separates eastward from westward traffic.

Appellee did not notice or complain of any injury at the time of the accident. However, she introduced expert medical testimony to establish that the impact of the collision revived a 1973 injury to her left neck and shoulder, which had been asymptomatic prior to the 1978 accident, resulting in pain, loss of movement, and deterioration of the cervical spine. Appellant did not introduce rebuttal expert witness, choosing to rely instead on cross-examination of Hilbert’s medical expert.

The case was tried under 42 Pa.C.S. 7102 , the comparative negligence statute. In conformity with the statute, the jury answered special interrogatories as follows:

“Question 1:
Do you find that the defendant was negligent?
Yes x No_
If you answer Question 1 ‘No’ you should not answer any further questions and should return to the courtroom.
“Question 2:
Was the defendant’s negligence a substantial factor in bringing about the plaintiff’s harm?
Yes_ No x
If you answer Question 2 ‘No’ you should not answer any further questions and should return to the courtroom.
“Question 3:
Was the plaintiff contributorily negligent?
Yes_ No_
“Question 4:
If you answered Question 3 ‘Yes’, was the contributory negligence of the plaintiff a substantial factor in bringing about her harm?
Yes_ No_”

Appellant contends that the jury verdict which found that he was negligent, but that his negligence was not a substantial factor in bringing about the plaintiffs harm, was not against the weight of the evidence. He further claims that a new trial should not be granted because the lower court is uncertain as to the basis of the jury verdict.

The decision to grant or deny a motion for a new trial is within the discretion of the trial judge and is reviewable only as abuse of discretion. Myers v. Gold, 277 Pa.Super. 66, 419 A.2d 663 (1980), Macina v. McAdams, 280 Pa.Super. 115, 421 A.2d 432 (1980). “Within the discretion of the trial court” does not explain the correct standards for the lower court and is a correspondingly insufficient guide for our own scope of review to determine “abuse of discretion.” Therefore, before any rational decision can be given at the appellate level, the reviewing court must know what standards the trial judge is bound to apply when ruling on a motion for a new trial.

We begin by distinguishing the obligations of the trial court in ruling on motions for judgment non obstante verdicto and for a new trial. In a motion for judgment n.o.v. the standard of review is well settled. “A judgment n.o.v. should be entered only in a clear case, and any doubts should be resolved in favor of the verdict ... In considering a motion for judgment n.o.v., the evidence together with all reasonable inferences therefrom, is considered in the light most favorable to the verdict winner.” Atkins v. Urban Redevelp. Auth. of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980) (citations omitted).

When a trial judge rules on a motion for a new trial, it is his duty to review the entire record and he is free to weigh the evidence for himself in order to determine whether the verdict is against the clear weight of the evidence or whether the judicial process has effected a serious injustice. Lamb v. Gibson, 274 Pa.Super. 7, 417 A.2d 1224 (1980). We are guided by the standards which have been set by the Third Circuit controlling the grant of a new trial. Broader discretion is given to the trial court if a new trial is granted because the lower court concluded that evidence was improperly admitted, or because prejudicial statements were made by counsel, or some other pernicious element has occurred during trial. When no such undesireable element has entered the judicial process, and the new trial order results from the trial court’s belief that the verdict was against the weight of the evidence, the lower court’s discretion is more circumscribed.

We also distinguish the situations where the trial court has granted a new trial on the grounds of insufficiency of the evidence from those situations in which the new trial is denied. In granting a new trial the court is, in a sense, intruding upon the jury’s function in a way that is not true when the court denies a new trial and, in so doing, upholds the decision of the jury in the face of challenge. We therefore believe that an appellate court may be more exacting in reviewing a new trial grant than in reviewing a new trial denial. Lind v. Schenley Industries, Inc., 278 F.2d 79 (3d Cir.1960), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960), Grove v. Dun and Bradstreet, Inc., 438 F.2d 433 (3d Cir.1971), Hourston v. Harvlan, Inc., 457 F.2d 1105 (3d Cir.1972). A new trial may not be granted merely because the trial court believes the jury should have decided differently. It should not be granted because the evidence is conflicting and the jury could have decided for either party. Troutman v. Taub, 285 Pa.Super. 353, 427 A.2d 673 (1981), Macina v. McAdams, supra, and cases cited therein.

In the case at bar, the jury answered that the defendant was negligent, but that his negligence was not a substantial factor in bringing about the plaintiffs harm. Therefore they did not answer the ensuing questions on plaintiff’s culpability. In so doing, they followed the explicit instructions on the interrogatory and the oral instructions of the court’s charge (R. 421a). In its opinion, however, the court maintained that the failure to answer the following questions left it unclear whether the jury believed the plaintiff’s own negligence was of such a quality to match or exceed the negligence of the defendant. “Hindsight instructs us that the jury should have been instructed to answer the remaining interrogatories” (R. 11).

The trial court maintains that the weight of the evidence contradicts answer 2 of the interrogatory and that the basis for the jury’s verdict is unclear because they did not answer questions 3 and 4. We disagree. Uncertainty as to the underlying reason for the jury’s verdict (the position taken on the trial court’s order) is not a valid reason for granting a new trial. However, even if the reason on the order is insufficient, we still look to the opinion as a whole when making our review. An insufficient reason will not invalidate the lower court’s action unless that reason is the only reason which is given. Macina v. McAdams, supra. We therefore examine the court’s objection to the jury’s finding that the defendant’s negligence was not a substantial factor in bringing about the plaintiffs harm, a finding that the court characterized as “arbitrary and capricious” (R. 9).

The accident occurred on a two-way thoroughfare which is thirty feet wide. The driveway from which Katz exited enters Montgomery Avenue at a point where the street curves, and the view from the bank’s driveway is partially obstructed by hedges on the bank’s property (R. 151a, 237-9a). Katz came to a stop before exiting, looked both ways, and proceeded slowly into the public street. He testified that at no point did. his car come over the center of Montgomery Avenue prior to impact (R. 157a, 189a, 190a).

We believe the jury’s finding that Katz was negligent, but' that his negligence was not a substantial cause of Hilbert’s harm, does not contradict the weight of the evidence “as to shock one’s sense of justice.” Ditz v. Marshall, 259 Pa.Super. 31, 393 A.2d 701, (1978), Albert v. Alter, 252 Pa.Super. 203, 381 A.2d 459 (1977).

We have maintained that our duty is to apply a stricter scrutiny in those cases where the trial court grants a new trial because he believes the jury verdict is against the weight of the evidence. We believe this is especially true when the litigation deals with subject matter and circumstances that are familiar and well within the ordinary juror’s experience and knowledge. Lind, supra. In cases such as the instant one, concerned with a two-car collision on a two-way street, we give greater deference to the verdict of the jury than we might otherwise do, in a case dealing with highly specialized, technical, or unusual matter. We thus protect the right to jury trial and defer to the time-honored wisdom of the jurors.

In a review of all the evidence we do not believe that the verdict is against the clear weight of the evidence, or that it has effected a serious injustice. The order of the lower court is reversed, and we remand for proceedings consistent with this opinion.

WIEAND and HOFFMAN, JJ., concur in the result.

      . § 7102. Comparative negligence
      (a) General rule.—In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to plaintiff.


author: SPAETH, Judge:

text:
    455 A.2d 708
    COMMONWEALTH of Pennsylvania, Appellant, v. Carmen DORANZO.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1982.
    Filed Jan. 28, 1983.
    Mark Stuart Gurevitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Lenard H. Sigal, Philadelphia, for appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal by the Commonwealth from an order granting a petition to return property. The record is too incomplete to permit a sensible decision. The order will therefore be reversed and the case remanded for a new hearing, so that a proper record may be made.

In its brief the Commonwealth asserts that it “presented] strong evidence which compels the inference that the hundreds of items stored by this admitted fence [appellee] were stolen and, therefore, constitute contraband ----” Reply Brief for Commonwealth at 3.

Two detectives testified at the hearing. Detective Thomas Chisholm said that “a jewelry box containing numerous jewelry items” was taken from appellee’s residence at 8217 Stenton Avenue. N.T. 8. Asked to estimate how many items, the detective replied, “40 to 50 pieces.” N.T. 9. The detective said that he also found a gun in the bedroom, N.T. 11, and “assorted” men’s and women’s watches, N.T. 13, although apparently the watches were not additional items but among those in the jewelry box, N.T. 13-14. Detective Andrew Brown said that “[n]umerous items, jewelry, televisions, stereos, clocks, lamps, numbers paraphernalia” were found “in the basement of the building” [a two-story building at 22nd and Allegheny]. N.T. 20-21. He also said that ■“[c]locks, silver, jewelry, drills, power tools, art work, tables, lamps, clothing” were found in a house at 3624 Stanton Street. N.T. 21. The detective also indicated that items were found at 6705 Ridge Avenue, “[throughout the building,” N.T. 20, but he was not asked, and did not say, what the items were.

While Detective Chisholm was on the stand, the assistant district attorney asked that “C—One [be marked] for identification,” the detective then identifying it as “the property receipt with the jewelry taken from [appellee’s] residence.” N.T. 14. The assistant district attorney also asked that “C-Two [be marked];” asked to identify it, the detective replied:

Q. I show you what has been marked as Exhibit C-Two for identification and ask you what those [sic ] are.
A. They are other property receipts, 747313. [Were there receipts besides No. 747313?]
Q. And what is that property receipt?
A. It’s a Smith and Wesson revolver, serial number 73818.
Q. Are there any other numbers on that property receipt?
A. Also numerous other weapons.
N.T. 14.

The assistant district attorney never offered either Exhibit C-l or Exhibit C-2 into evidence.

The Commonwealth has included as part of the “Reproduced Record” some thirty odd pages of what appear to be property receipts, in order, Nos. 747323, 747313, 747314, 747315, 747316, 747318, 747320, 747324, 747321, 747322, 747319, and 747312. None of these, however, is marked as either Exhibit C-l or Exhibit C-2. It seems likely that Property Receipt No. 747323 is the receipt referred to by Detective Chisholm as the receipt for the jewelry taken from appellee’s residence, for it lists numerous items of jewelry as having been found at 8217 Stenton Avenue. Also, Property Receipt No. 747313 is as the detective described it.

Counsel for appellee argues that the Commonwealth’s assertion in its brief, that “hundreds of items” had been taken from appellee’s premises, is unsupported by the record. This argument is misleading. It is true that the assistant district attorney never offered either Exhibit C-l or Exhibit C-2 into evidence, and that the relationship between the detectives’ testimony and the property receipts reproduced by the Commonwealth is, to say the least, incompletely disclosed by the record. However, at the end of the hearing, the following colloquy occurred:

MR. SIGAL [counsel for appellee]: I would merely seek leave, Your Honor, to introduce into evidence all of the property receipts issued in connection with this case.
MR. GORDON [the assistant district attorney]: Absolutely.
MR. SIGAL: And to make it perfectly clear, judge, in order to do away with mountains of paper work, the items that were returned to other people are listed in these property receipts. Your Honor, we are only seeking any items that are currently in possession of the Philadelphia Police Department and are not seeking the return of any items that were returned to their owners.
MR. GORDON: I am not certain what property receipts were issued for the items that were returned.
MR. SIGAL: I’m not either and I’m just trying, there are hundreds and hundreds and hundreds and we want to make a statement for the record and I am seeking those articles which are in___
THE COURT: A brief from you and a brief from you. [So far as appears, the court never ruled on the admissibility of the property receipts “introduce[d]” by counsel for appellee.]
MR. SIGAL: Fine, judge.
THE COURT: And we will take this under advisement until July 29th.

N.T. 25-26.

This statement made nothing “perfectly clear.” What are “all of the property receipts issued in connection with this case?” Do they include the receipts reproduced by the Commonwealth? What are “the items that were returned to other people,” and where are those items “listed in these property receipts?” And finally, what are “[the] items that are currently in possession of the Philadelphia Police Department?”

The Commonwealth argues that appellee’s “possession of all of these more than eight hundred (800) articles has been directly linked to his admitted illegal activity as a ‘fence’.” Brief for Commonwealth at 13. We cannot accept this argument, for the record doesn’t support it. However, given appellee’s counsel’s “introduc[tion] into evidence [of] all of the property receipts issued in connection with this case,” neither can we accept appellee’s argument that his petition to return property should be granted. For even though the record has been carelessly developed, we think it quite possible that the items in question—whatever those items are—are not items of which appellee “is entitled to [the] lawful possession.” Pa.R.Crim.P. 324(a). We shall therefore remand so that a new hearing on the petition may be held, and a proper record made.

The order of the lower court is reversed, and the case is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.


author: ROWLEY, Judge: HESTER, Judge,

text:
    455 A.2d 710
    Pauline J. JONES, Appellant, v. STATE AUTOMOBILE INSURANCE ASSOCIATION.
    Superior Court of Pennsylvania.
    Argued May 21, 1982.
    Filed Jan. 28, 1983.

      Howard William White, Jr., Franklin, for appellant.
    F. Bloom, III, Oil City, for appellee.
    Before CERCONE, President Judge, and HESTER, BRO-SKY, ROWLEY, McEWEN, JOHNSON and POPOVICH, JJ.
   ROWLEY, Judge:

This case presents for our determination issues not presented to, or decided by, this Court in Floczak v. Nationwide Mutual Insurance Co., 289 Pa.Super. 438, 433 A.2d 885 (1981).

Pauline J. Jones, appellant, sustained injuries in an automobile accident on October 27, 1977. Appellee, State Automobile Insurance Association, appellant’s no-fault insurer, commenced the payment of “work loss” benefits to appellant under the provisions of her policy. However, appellee terminated payment of “work loss” benefits on August 8, 1978, following a physical examination of appellant. In November of 1978, appellant initiated these proceedings by filing, in the trial court, a petition asking that appellee be required to resume payments for work loss benefits, and in addition, that it be required to pay interest on the amount determined to be due and also to pay her attorney’s fees. A rule was issued by the trial court on appellee to show cause why the petition should not be granted. Depositions were taken by the parties and the case was submitted to the trial court on the petition, rule, answer, and depositions, following oral argument. On April 9, 1980, the trial court filed an opinion and order in which the appellant’s petition was “dismissed”. This appeal was filed from the court’s order dismissing appellant’s petition.

Appellant initially presented as issues for this Court’s determination, the appropriate allocation of the burden of proof in this proceeding, as well as the sufficiency of the evidence to support the trial court’s denial of relief. Following argument before a panel of this Court, but prior to a decision having been filed, another panel of this Court filed the decision in Floczak, supra., on July 24, 1981.

In Floczak, our Court held that a claim for basic work loss benefits under the Pennsylvania No-Fault Insurance Act may not be commenced by petition and rule. That decision was based on the language of § 106 of the No-Fault Act, which provides for commencement of “an action” to recover benefits. The Court stated that although the term “action” is not defined in the No-Fault Act, it is defined in the Statutory Construction Act as “any suit or proceeding in any court of this Commonwealth”. 1 Pa.C. S.A. § 1991. The Court concluded that an “action” must be commenced as provided by the Rules of Civil Procedure, unless otherwise expressly provided by statute. Neither the rules of civil procedure nor the No-Fault Act authorize commencement of an action by petition. Therefore, in accordance with Rule 1007, an action for no-fault benefits may only be commenced by filing 1) a praecipe for a writ of summons, 2) a complaint, or 3) an agreement for an amicable action. This Court then reversed the trial court’s order that had denied the defendant’s preliminary objection in the nature of a motion to strike the petition and rule by which the plaintiff had commenced her action.

After the decision in Floczak, our Court granted reargument in this case before the court en banc and directed counsel to address two additional questions. The first question to be addressed is whether the commencement of this no-fault action by petition and rule is a waivable defect. The second question that counsel were directed to address is whether appellant was required to file exceptions to the trial court’s decision in order to preserve issues for appellate review and, if so, the effect of her failure to do so in this case.

We have concluded that the commencement of an action under the No-Fault Act by petition and rule is a waivable procedural defect and in this case was waived by appellee. We have also concluded that in order to preserve issues for appellate review, a party must file exceptions to the trial court’s decision and have the exceptions passed upon by the trial court en banc. Finally, we have determined that under the special circumstances of this case, appellant’s failure to file exceptions may be excused. Therefore, this case will be remanded to the trial court for the filing of exceptions and further proceedings.

The first issue to be addressed is whether commencement of a no-fault action by petition and rule is a waivable defect. It should be noted that this was not an issue in Floczak. In that case, the insurer filed preliminary objections to the petition, including a motion to strike, arguing that pursuant to Pa.R.C.P. 1007, the proper method of initiating the action was by summons or complaint. On the other hand, in this case the appellee did not object to the manner in which the proceeding was initiated. On the contrary, appellee filed an answer to the petition.

Both parties agree that the improper initiation of this action does not raise a question of subject matter jurisdiction, since the Court of Common Pleas clearly has jurisdiction to hear matters relating to enforcement of rights under the No-Fault Act. Rather, the initiation of this action by petition and rule was merely a procedural defect and, as such, was waivable. By filing an answer to appellant’s petition, appellee waived any objection to the manner in which the action was commenced. The parties, therefore, urge the Court to consider the second issue raised in this appeal; whether it was necessary to file exceptions to the order.

We agree with the parties that the commencement of this action by petition and rule was a waivable, procedural defect. Since there is no doubt that the Courts of Common Pleas have subject matter jurisdiction to adjudicate controversies arising under the No-Fault Act, the improper initiation of a proceeding under that Act must be considered an irregularity that does not impair the court’s ability to resolve the dispute. “Where a court has general jurisdiction over the subject matter of the litigation, any irregularity in the method by which the court obtains jurisdiction of a particular case is usually waived by failure to raise the objection timely, (citations omitted) Defects in process or procedure may always be waived provided there is general jurisdiction of the subject matter.” Papencordt v. Masterwork Paint Co., 412 Pa. 508, 511, 194 A.2d 878, 880 (1963). Therefore, by responding to appellant’s petition on its merits, appellee has waived any objection it had to the manner in which this action was initiated.

We turn now to the issue of whether appellant could properly file an immediate appeal from the order dismissing her petition. Appellant contends that the petition and rule procedure is “akin to summary judgment” under Pa.R.C.P. 1035 and therefore the order is a final judgment which is immediately appealable. Hence, appellant argues that her appeal is properly perfected and we should dispose of the appeal on its merits. Appellee argues that although it waived the improper initiation of the action, the trial court’s decision is analogous to the disposition of a case, on its merits, by a non-jury trial pursuant to Pa.R.C.P. 1038, which requires the filing of exceptions within ten days after notice of the filing of the decision. Appellee therefore argues that appellant, by failing to file exceptions to the trial court’s decision, has failed to preserve any claimed errors for appellate review.

We have concluded that the proper procedure to be followed in such cases, even though initiated by petition and rule, is the same as that followed in the disposition of civil cases following a non-jury trial.

Summary judgment will not be entered unless a case is free from doubt and no material facts are in dispute. Pa.R.C.P. 1035(b); Husak v. Berkel, Inc., 234 Pa.Super. 452, 458, 341 A.2d 174, 177 (1975). In this case, however, several important facts were in dispute. Specifically, appellee questioned whether appellant was actually disabled and, if so, whether such disability was caused by the accident in question. Although the trial judge did not actually observe the witnesses testifying, it is clear that his decision was largely based on a determination of the credibility of the witnesses. The trial judge stated in his opinion, “For the reasons discussed below we accept the opinion of Dr. Minde and reject that of Dr. Fee.” Therefore, we have concluded that an action to obtain no-fault benefits, although initiated improperly by means of petition and rule, is governed by Pa.R.C.P. 1038 just as it would be if commenced properly and tried before the court without a jury. Appellant was required, therefore, to file exceptions to the decision of the trial court before bringing this appeal.

Normally, of course, the failure to file exceptions under Pa.R.C.P. 1038 results in a failure to preserve issues for appellate review. Gibson v. Miller, 265 Pa.Super. 597, 402 A.2d 1033 (1979). However, it is our opinion that appellant’s failure to file exceptions in this case should be excused in view of the extraordinary circumstances present. In view of the considerable confusion that existed prior to the court’s decision in Floczak v. Nationwide Mutual Insurance Co., supra., about the proper procedure to be followed in these cases, appellant’s belief that the action could be begun by petition and rule had, at least, arguable merit. Additionally, no rule of court expressly requires the filing of exceptions to a final order dismissing a petition. In fact, a panel of this court had held that Rule 1038(d) did not apply to petition and rule proceedings. Kennedy v. Frank L. Black, Inc., 271 Pa.Super. 454, 413 A.2d 1104 (1979). Therefore, appellant’s right of review should not be barred by her failure to file exceptions.

In certain cases, justice may require that courts permit litigants an opportunity to mold their positions to meet changes in or clarification of the law that occur during the pendancy of appellate proceedings. Brubaker v. Reading Eagle Co., 422 Pa. 63, 221 A.2d 190 (1966). See also Dunn v. Merck & Company, Inc., 463 Pa. 441, 345 A.2d 601 (1975). In those no-fault cases now on appeal, which were commenced by petition and rule without objection by the defendant, and where a final order was entered by the trial court prior to Floczak, supra., the failure to file exceptions will be excused. The parties urge that if we reach this result we should proceed to determine, on their merits, the issues raised by appellant. Such a procedure would deprive this Court, however, of having the benefit of the trial court’s consideration of appellant’s specific objections to its decision. Appellate review is more meaningful when the trial court has first had an opportunity to review its decision and to address the specific allegations of error raised in exceptions. The number of cases falling in this category should be relatively small and their reconsideration would not unduly burden the judicial system. Therefore, we will remand this case to the trial court in order to permit appellant to file exceptions to the order dismissing her petition.

Case remanded for further proceedings.

Jurisdiction relinquished.

CERCONE, President Judge, concurs in the result.

HESTER, J., files a dissenting opinion.

HESTER, Judge,

dissenting:

I agree with the majority on several significant points. First, I concur that the improper initiation of these proceedings by petition and rule was a procedural jurisdictional defect which was waived when appellee filed an answer to the petition.

Second, I agree that this proceeding is not analogous to a summary judgment proceeding. Rather, as the majority notes, the trial court’s decision herein is comparable to the disposition of a case, on its merits, by a non-jury trial. Consequently, the same procedure should be adhered to in this case as is followed in the disposition of civil cases after a non-jury trial. Pa.R.C.P. 1038(d) provides:

“Within ten (10) days after notice of the filing of the decision, exceptions may be filed by any party to the decision or any part thereof, to rulings on objections to evidence or to any other matters occurring during the trial. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters. No motion for a new trial, for judgment non obstante veredicto, in arrest of judgment or to remove a nonsuit may be filed.”

It is at this juncture that I must part with the majority. In their opinion, they excuse appellant’s failure to file exceptions and provide her with an opportunity on remand to mold her position in accordance with clarification of the law which has occurred during the course of her appeal.

I disagree.

As stated above, a proceeding to obtain No Fault benefits which was initiated by petition and rule is analogous to a non-jury trial. Therefore, it should be subject to Pa.R.C.P. 1038, which mandates the filing of exceptions within ten (10) days after notice of the filing of the decision.

The majority relies upon Kennedy v. Frank L. Black, Inc., 271 Pa.Super. 454, 413 A.2d 1104 (1979), which held that Pa.R.C.P. 1038(d) did not apply to petition and rule proceedings. However, therein, the petition and rule procedure was employed in an effort to open and/or strike a default judgment. The practice governing appeals from the grant or refusal to open or strike a judgment taken by default is totally distinguishable and nondispositive of the instant case. Direct appeals to this court from either the grant or refusal to open or strike a judgment taken by default conforms with Pa.R.A.P. 311(a) which authorizes an appeal as of right from certain interlocutory orders, including orders which open or refuse to open or strike a default judgment. Moreover, this rule specifically directs that such orders are “immediately appealable.” See America Corp. v. Cascerceri, 255 Pa.Super. 574, 389 A.2d 126 (1978); Kennedy v. Frank L. Black, Jr., Inc., supra.

Accordingly, I conclude that appellant, by failing to file timely exceptions in the lower court to the Order dismissing her petition, has failed to preserve any substantive issues for appeal. I would affirm the Order of the lower court.

      . Brubaker was a defamation case in which a public official was awarded a substantial verdict against a newspaper. While post-trial motions were pending, the United States Supreme Court set down new standards for such cases in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Based on Sullivan, the trial court granted judgment n.o.v. The Pennsylvania Supreme Court reversed and ordered a new trial in order to give the plaintiff an opportunity to meet the new standards announced in Sullivan.

        . Dunn involved a change in the case law concerning interpretation of a provision of the Workmen’s Compensation Act which occurred while plaintiffs case was on appeal. The case was remanded to the Workmen’s Compensation Board in order to give plaintiff an opportunity to meet the new test.

      . Pa.R.C.P. 1038, which dictates the procedure for non-jury trials in actions in assumpsit, is made applicable to actions in trespass by Pa.R.C.P. 1048.


author: WIEAND, Judge:

text:
    455 A.2d 714
    James BOWMAN, Appellant, v. Frank A. MATTEI, M.D., St. Luke’s and Children’s Medical Center, Charles Sovetsky, D.O., Isadore J. Wessell, M.D., and Harry Wexlar, M.D.
    Superior Court of Pennsylvania.
    Argued May 25, 1982.
    Filed Jan. 28, 1983.

      Stephen M. Feldman, Philadelphia, for appellant.
    John J. O’Brien, Jr., Philadelphia, for appellees.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

Does a failure to file a reply constitute the admission of an averment contained in new matter that the cause of action alleged in the complaint “is barred by the ... statute of limitations?” The trial court held that a failure to file a reply was such an admission and summarily dismissed an action for personal injuries which, in fact, had been commenced within two years of the injury. We reverse.

The complaint contains averments that James Bowman was admitted to St. Luke’s and Children’s Medical Center, a general hospital, on July, 14, 1972. There he came under the care of Dr. Frank A. Mattei, an orthopedic surgeon. As a result of negligently administered medical care, according to the complaint, he sustained injuries to “nerves, muscles, tendons, ligaments and bones.”

An action in trespass was commenced on July 11, 1974 by filing a praecipe for issuance of a summons. The summons was promptly issued but not delivered to the sheriff for service. It was reissued on October 4, 1974 and was thereafter served on the named defendants. On November 8, 1974, St. Luke’s ruled Bowman to file a complaint, and in due course the same was filed. Thereafter, St. Luke’s and Dr. Mattei filed separate answers containing new matter asserting that Bowman’s claim was barred by the applicable two year statute of limitations. It was not until December 12, 1980 that Bowman filed a reply to this new matter. Because of the lateness of this filing, motions to strike the reply were filed and granted. In this posture, the case proceeded to trial. At the close of Bowman’s case, an oral motion for summary judgment was granted on grounds that the failure to file a reply to new matter constituted an admission that the action was barred by the statute of limitations.

Pa.R.C.P. 1045(b) requires that the affirmative defense of the statute of limitations, unless previously raised by demurrer and sustained, be pleaded as “New Matter.” The rule, by 1962 amendment, provides further:

“A plaintiff who fails to file a reply to averments of the defendant’s new matter shall be deemed to admit all such averments other than averments relating to contributory negligence or assumption of risk.”

This rule, however, must be interpreted in the light of Pa.R.C.P. 1029(a), which provides:

“(a) A responsive pleading shall admit or deny the averments of fact in the preceding pleading or part thereof to which it is responsive.” (emphasis added).

Under the fact pleading system which exists in Pennsylvania, the general rule is that only averments of fact require a denial. Goodrich-Amram 2d § 1029(a). See also: Kappe Associates, Inc. v. Aetna Casualty & Surety Co., 234 Pa.Super. 627, 341 A.2d 516 (1975).

In Blumer v. Dorfman, 447 Pa. 131, 289 A.2d 463 (1972), the Supreme Court expressly declined to pass on the effect of a failure to reply to an allegation in new matter which contained only a legal conclusion that the claim was barred by the statute of frauds. Id., 447 Pa. at 139 n. 5, 289 A.2d at 468 n. 5. However, in Bureau for Child Care v. The United Fund of the Philadelphia Area, 416 Pa. 617, 207 A.2d 847 (1965), where a defendant had pleaded as new matter the conclusion that defendant was justified in terminating an agreement without averring facts to support such a conclusion, the Supreme Court held that a failure to file a reply did not constitute an admission that the defendant’s termination was legally justified. “It is axiomatic,” said the Court, “that new matter must state facts, not conclusions.” Id., 416 Pa. at 622, 207 A.2d at 850. See also: Aughenbaugh v. North American Refractories Co., 426 Pa. 211, 213, 231 A.2d 173, 175 (1967).

Moreover, in Enoch v. Food Fair Stores, Inc., 232 Pa.Super. 1, 331 A.2d 912 (1974), this Court held that new matter alleging the legal conclusion of sovereign immunity required no denial. The Court said:

“The purpose of new matter pleading is ‘to compel a plaintiff to answer the defendant’s affirmative defenses during the pleading stage to avoid an unnecessary trial.’... Thus, although a plaintiff is required to respond to averments which set forth the factual basis in support of an affirmative defense, a plaintiff is not compelled to answer conclusions of law. In fact, a trial judge errs if he considers asserted conclusions of law, or accepts them as admitted when passing on a motion for judgment on the pleadings.” (citations omitted).

Id., 232 Pa.Super. at 4-5, 331 A.2d at 914 quoting Chivers v. School District of Mt. Lebanon, 6 Pa.Cmwlth. 622, 297 A.2d 187 (1972). See also: Yancoskie v. Delaware River Port Authority, 478 Pa. 396, 398 n. 1, 387 A.2d 41, 42 n. 1 (1978). Finally, in Watson v. Green, 231 Pa.Super. 115, 331 A.2d 790 (1974), where a defendant had averred in new matter that the dead man’s rule precluded any possibility of recovery, this Court held that defendant’s averment was a conclusion of law requiring no responsive pleading.

The decision in Louis v. Clark, 227 Pa.Super. 547, 323 A.2d 298 (1974), upon which appellees rely, did not reach a contrary result. It held merely, as commanded by the 1962 amendment to Pa.R.C.P. 1045(b), that a reply was necessary to new matter alleging a statute of limitations defense if adequately pleaded in an answer endorsed with notice to plead. It did not hold that the failure to file a reply constituted an admission of the legal conclusion that the action was barred by the statute of limitations.

The facts in the instant case are that appellant was admitted to the hospital on July 14, 1972 and that the treatment about which he complains occurred thereafter. His action against the hospital and Dr. Mattei was commenced by summons on July 11, 1974, less than two years thereafter. This was within the two year period allowed by the statute of limitations.

Appellee argues that the failure to deliver the summons to the sheriff nullified the commencement of the action. This argument is based on the holding in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). The holding in that case, however, was prospective only. Id., 469 Pa. at 478, 366 A.2d at 889. See also: Sayne v. Wylie, 296 Pa.Super. 134, 139 n. 2, 442 A.2d 694, 697 n. 2 (1981). It does not have application where, as here, the relevant circumstances occurred prior to October 4, 1974.

Pa.R.C.P. 1007 is clear that an action may be commenced “by filing with the prothonotary a praecipe for a writ of summons.” Thus, the filing of the praecipe on July 11, 1974 was sufficient to toll the running of the statute of limitations in the instant case. Although it was not served within thirty days thereafter, Pa.R.C.P. 1010 permitted the writ to be reissued at any time within a new two year period. This was done on October 4, 1974. The writ was served promptly thereafter. Under these circumstances, appellant’s action was not barred by the two year statute of limitations applicable to actions for personal injuries.

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

BECK, J., concurs in the result.

      . Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34, now repealed. For present statute see 42 Pa.C.S.A. § 5524.

      . On April 11, 1977, Bowman filed a second action for the same injuries against Dr. Dominic F. Nappi and St. Luke’s and Children’s Medical Center. It was consolidated with the earlier action for trial.

      . The prior decision of the Supreme Court in Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232, 255 A.2d 577 (1969) was limited to its own facts and thus distinguished by a majority of the Court in Lamp v. Heyman, supra. It does not compel a holding that the summons issued in the instant case on July 11, 1974 was a nullity for purposes of tolling the statute of limitations.


text:
    455 A.2d 717
    In the Matter of Gerald YEAGER, a Minor Adjudicated Dependent. Appeal of Gerald YEAGER.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1982.
    Filed Jan. 28, 1983.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    William A. Dopierala, Erie, for participating party.
    Before CERCONE, President Judge, and WIEAND and BECK, JJ.
   WIEAND, Judge:

May a juvenile be adjudicated a dependent child without a showing of parental fault? This is the primary issue in the instant appeal from an order declaring Gerald Yeager a dependent child under the Juvenile Act and placing him for an indefinite period under the care and supervision of Children’s Services of Erie County, with further placement at the Harborcreek School for Boys’ Intensive Treatment Unit. A secondary issue is whether the court, in view of the juvenile’s history of anti-social, mental and emotional difficulties, could properly proceed under the Juvenile Act rather than the Mental Health Procedures Act. Our review discloses a proper adjudication and placement; and, therefore, we affirm the order of the trial court.

On July 6, 1981, Children’s Services of Erie County filed a petition alleging that Gerald Yeager, born March 10, 1965, was “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals” and was, therefore, a dependent child. On July 16, 1981, a hearing on the petition was held before a court-appointed master, at which both the juvenile and the petitioner were represented by counsel. The juvenile’s mother, Mrs. Mary Lou Chambers, was also present but without counsel. The whereabouts of the juvenile’s father, Charles Yeager, were unknown. All parties agreed, with minor exceptions, that the facts were as alleged in the dependency petition. That petition may be summarized as follows: Gerald Yeager is a sixteen year old boy with a history of mental health and behavior problems. He was committed to the Warren State Hospital for a thirteen month period beginning in May, 1979. Upon his release from Warren State, Gerald voluntarily entered the residential program at Sarah Reed Children’s Center. His imminent release from Sarah Reed prompted the filing of the instant dependency petition. Incidents of violent physical confrontations with family members which resulted in personal injury and property damage, inappropriate sexual behavior with young relatives and the use of drugs and alcohol were characteristic of Gerald’s behavior while at the home of his mother and stepfather. On occasion he also ran away from home and from the Children’s Center. Mrs. Chambers does not dispute her inability to control Gerald’s behavior and, indeed, at the adjudicatory hearing testified that he is uncontrollable in the family unit. Based upon these facts, the master recommended and the trial court ordered that Gerald Yeager be adjudicated dependent. Subsequent thereto, a dispositional hearing was held where testimony disclosed that Gerald was in need of increased attention and supervision within a secure setting. Gerald was accordingly placed under the supervision of Children’s Services and ordered to undergo treatment at Harborcreek School for Boys, where necessary care, as well as an opportunity for vocational training, could be provided.

The Juvenile Act defines a “dependent child” as a child who “is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals____” 42 Pa.C.S. § 6302(1). In order to find a child dependent under this provision, it must be established that the child is presently without proper parental care, and, if so, that such care is not immediately available. The fact of dependency must be proved by evidence that is clear and convincing. In the Matter of Jackson, 302 Pa.Super. 369, 373, 448 A.2d 1087, 1089 (1982); In the Interest of H.B., 293 Pa.Super. 109, 114, 437 A.2d 1229, 1232 (1981); In re A.E.M., 288 Pa.Super. 284, 288, 431 A.2d 1049, 1051 (1981); In the Interest of Theresa E., 287 Pa.Super. 162, 172, 429 A.2d 1150, 1155 (1981); In the Interest of Black, 273 Pa.Super. 536, 542, 417 A.2d 1178, 1182 (1980); In re Pernishek, 268 Pa.Super. 447, 458, 408 A.2d 872, 878 (1979); In the Interest of LaRue, 244 Pa.Super. 218, 228, 366 A.2d 1271, 1278 (1976); 42 Pa.C.S. § 6341(c).

Neither the Juvenile Act nor Pennsylvania case law compels a showing of parental fault prior to an adjudication of dependency. In arguing that fault is a prerequisite, appellant misconstrues the nature of the proceeding. The focus of the inquiry in a dependency action is “whether in fact a child has received, or will receive, proper and necessary parental care ____” In the Interest of K.B., 276 Pa.Super. 380, 390, 419 A.2d 508, 513 (1980). By so defining dependency, “the Act limits the Commonwealth’s coercive interference with the family unit to those cases where the parents have not provided ‘a minimum standard of care for a child’s physical, intellectual and moral well being.’ ... [Pjarental care which is both ‘necessary’ and ‘proper’ is not the best care possible but that care which (1) is geared to the particularized needs of the child and (2) at a minimum, is likely to prevent serious injury to the child.” In re Pernishek, supra, 268 Pa.Super. at 458, 408 A.2d at 877-878, quoting In re Rinker, 180 Pa.Super. 143, 148, 117 A.2d 780, 783 (1955). Although a finding of dependency frequently rests upon parental transgression, parental neglect or abuse is by no means essential. Rather, the compelling consideration is the ability and willingness of the parent or parents to provide necessary and proper care according to the special needs of their child or children. Thus, we have approved adjudications of dependency under circumstances where a parent, while clearly not at fault and indeed even capable of caring for a normal child, is unable to provide the sort of care required by the child’s specialized needs. See: In re Pernishek, supra (child diagnosed as psychosocial dwarf for whom parents were unable to provide the care necessary for “catch-up” growth); In re Whittle, 263 Pa. Super. 312, 397 A.2d 1225 (1979) (mother unable to provide special therapy required for child’s severe burns); In re Rinker, supra (child below average mentally may require more care than a normal child).

In the instant case, the evidence indicated clearly and convincingly the. inability of Mrs. Chambers to control her son or to provide him with the sort of care necessary to correct his behavior and bring it into agreement with good morals and reasonable community standards. The adjudication of dependency was not erroneous merely because the juvenile’s mother was not guilty of neglect or abuse. It was enough that she could not provide the care required to meet the juvenile’s special needs.

It is also contended by appellant that the trial court erred when it failed to proceed under the Mental Health Procedures Act of July 9, 1976, P.L. 817, No. 143, § 101 et seq., 50 P.S. § 7101 et seq. This argument is premised upon language in the Juvenile Act, at 42 Pa.C.S. § 6356, which suggests that where “the evidence indicates that the child may be subject to commitment or detention under the provisions of ... the ‘Mental Health and Mental Retardation Act of 1966’ or ... the ‘Mental Health Procedures Act,’ the court shall proceed under the provisions of the appropriate statute.”

However, the record fails to contain evidence, medical or lay, upon which the court could have based an involuntary commitment under the Mental Health Procedures Act. “Severe mental disability exists where, ‘as a result of mental illness,’ the person’s ‘capacity to exercise self-control, judgment and discretion in the conduct of his affairs ... is so lessened that he poses a clear and present danger of harm to others or to himself.’ [50 P.S.] § 7301(a).” In the Interest of Green, 273 Pa.Super. 397, 401, 417 A.2d 708, 710 (1980). Here, there was no medical diagnosis and the lay evidence was entirely insufficient to permit a finding that the juvenile was mentally disabled. The dispositional order was properly based upon the recommendations and evidence presented to the hearing court that educational needs could be met through group home intensive treatment at Harbor-creek. Therefore, we perceive no error in the trial court’s dispositional order.

Order affirmed.

      . 42 Pa.C.S. § 6301 et seq.

      . The instant appeal has been filed on behalf of the juvenile. His mother has not appealed.

      . See: 42 Pa.C.S. § 6302.

      . The Juvenile Act provides eight other definitions of a dependent child, but none is here applicable.

      . This issue, moreover, is now to a large extent moot. The parties are agreed and have represented to this Court that after the court’s placement order had been entered, the juvenile, while under the care and supervision of Children’s Services of Erie County, was, in fact, placed at Warren State Hospital and has now been returned to the home of his mother.


author: BECK, Judge:

text:
    455 A.2d 720
    COMMONWEALTH of Pennsylvania v. Robert Paul DEVAULT, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1981.
    Filed Jan. 28, 1983.
    Petition for Allowance of Appeal Denied May 13, 1983.

      Charles O. Zebley, Jr., Uniontown, for appellant.
    James T. Davis, Assistant District Attorney, Uniontown, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   BECK, Judge:

Appellant Robert Paul Devault was arrested and charged with Receiving Stolen Property (No. 715 of 1979) and two violations of the Uniform Firearms Act (No. 715% and 715% of 1979). The lower court granted the defendant’s motion for severance and Devault was tried and convicted of the charge of Receiving Stolen Property. Subsequently, in February 1980, he was tried to a jury and found guilty of the firearms charges.

After his conviction on the weapons offenses appellant filed motions for a new trial and in arrest of judgment. He had also initiated an appeal on the first conviction for Receiving Stolen Property. An evidentiary hearing was scheduled for October 14, 1980 to consider issues raised in Devault’s post-trial motions, i.e. that the court erred in not granting his request for replacement counsel, and that he was denied effective assistance of counsel at his trial. (R. no. 9). Prior to October 14, Devault agreed to plead guilty to the weapons offenses in return for a sentence to run concurrently with the sentence in the prior conviction (two to five years).

A colloquy was held on October 14 at which the terms of the guilty plea were explained to Devault. These terms included an agreement that Devault would withdraw his appeal on the earlier conviction and his motions following the second conviction in return for the concurrent sentence (R. no. 16). The judge informed Devault at the sentencing proceedings on October 16 that he had ten days to file a motion challenging the sentence on the grounds that the court lacked jurisdiction or on the grounds his withdrawal of the motions was not voluntary (R. no. 19). Appellant’s counsel thereupon petitioned for a writ of habeas corpus on the grounds that the informations charging Devault with the firearms charges were not signed by the Fayette County district attorney and were therefore void ab initio, the court lacking jurisdiction to impose a sentence. He also urged that since more than 180 days had passed since the original complaint had been filed he was entitled to full discharge. The court dismissed the petition for habeas corpus without a hearing and this appeal followed.

Devault, who is no longer represented by his trial counsel, claims relief under P.C.H.A. 19 P.S. § 1180-3(c)(6), ineffective assistance of counsel, because his trial attorney failed to challenge the legality of the informations. He argues that because the informations are stamped with the district attorney’s signature they lack the prerequisites of validity under the ruling in Com. v. Belcher, 258 Pa.Super. 153, 392 A.2d 730 (1978) and are void ab initio for failure to conform with Pa.R.Crim.P. 225(b).

The claim is without merit. Our Court has recently reviewed en banc the body of case law on the validity of rubber stamped facsimile signatures on informations. The questions addressed by the Court were (1) whether an information containing only a rubber stamp of the signature was valid within the meaning of Rule 225(b) and (2) assuming that such a rubber stamp signature was invalid, whether it rendered the information void ab initio or merely voidable. The Court held that a rubber stamp signature, without more, was not sufficient, but that the defect rendered the information voidable, not void. Up until a case reached the point where the information had lost any meaning, i.e. where the Commonwealth had begun to support the charges by proof at trial, or the defendant stood convicted, the defect was curable. However, if the defendant had not made timely motion to quash the information at that point, the claim was waived. Com. v. Venen, 306 Pa.Super. 396, 452 A.2d 784 and Com. v. Thomas, 306 Pa.Super. 396, 452 A.2d 784 (1982).

The ruling in Venen and Thomas in no way affected the ongoing validity of Com. v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981), in which our Supreme Court upheld the legal sufficiency of an information stamped with the district attorney’s signature and hand-initialled by an assistant district attorney. In Devault’s case, the informations are stamped with the facsimile signature of the district attorney and are initialled as “approved” and dated by the hand of an assistant district attorney (R. no. 3). The informations thus comply with the law as stated in Contakos, supra, and 42 Pa.C.S. § 8931(i). Devault therefore cannot claim relief under the holding in Venen and Thomas, which invalidates only those informations bearing no more than a rubber stamp.

The order of the court below dismissing appellant’s petition is affirmed.

      . 18 Pa.C.S. § 3925.

      . 18 Pa.C.S. § 6105 and § 6106.

      . Rule 225. Information: Filing, Contents, Function
      (a) In counties in which the indicting grand jury has been abolished, after the defendant has been held for court, the attorney for the Commonwealth either shall move to nolle prosequi the charges or shall proceed by preparing an information and filing it with the court of common pleas.
      (b) The information shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains: ____

      . § 8931
      (i) Definition.—As used in this section "district attorney” includes a special attorney appointed by the Attorney General in the manner provided by statute, an acting district attorney and any assistant district attorney whose authority to act for the district attorney under this section is evidenced by a written designation executed by the district attorney or acting district attorney and filed with the clerk of courts.


text:
    455 A.2d 722
    COMMONWEALTH of Pennsylvania, Appellant, v. Terrance BALTZLEY.
    Superior Court of Pennsylvania.
    Submitted Sept. 21, 1982.
    Filed Jan. 28, 1983.

      Roy Alan Keefer, Assistant District Attorney, Gettysburg, for Commonwealth, appellant.
    David Kostka James, Gettysburg, for appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   PER CURIAM:

■ The Commonwealth charged appellee Terrance Baltzley with a speeding violation under 75 Pa.C.S.A. § 3362(a)(3), Act of June 17, 1976, P.L. 162, No. 81, § 1. Baltzley was found guilty by the district justice, and took a summary appeal to the Court of Common Pleas of Adams County. After a trial de novo, the court found Baltzley not guilty in an order dated July 13, 1981. The Commonwealth appeals from this order.

This Court has held that the Commonwealth may not appeal from a judgment of not guilty by a Court of Common Pleas on an appeal from a summary conviction by a District Justice. Commonwealth v. Johnson, 270 Pa.Super. 57, 58, 410 A.2d 894 (1979). In general, the Commonwealth may not appeal from a verdict of not guilty entered by a trial court in a criminal case—and this rule applies whether the offense charged be a summary or indictable offense. Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410 (1972); Commonwealth v. Thinnes, 263 Pa.Super. 79, 397 A.2d 5 (1979). Only where a dispositive adverse ruling in the trial court is purely one of law may the Commonwealth appeal; where the reason for the ruling is an admixture of law and fact, no appeal lies. Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961); Commonwealth v. Iacavazzi, 297 Pa.Super. 200, 443 A.2d 795 (1981). The trial court opinion states that “the Commonwealth sought no rulings and the Court entered a general verdict of not guilty.” Under any interpretation of the law applicable to this case, the Commonwealth’s appeal must be quashed.

Appeal quashed.

POPOVICH, J., concurs in the result.


text:
    455 A.2d 723
    Rosemary T. DUNSMORE, Appellant, v. Walter B. DUNSMORE.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1982.
    Decided Jan. 28, 1983.

      Lynne Z. Gold-Bikin, Norristown, for appellant.
    Thomas E. Waters, Norristown, for appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   SPAETH, Judge:

This is a child custody case. The lower court awarded custody of the parties’ daughter, now six years old, to the father. The mother has appealed. Because of procedural errors, the case will be remanded with instructions to start over again.

The father was permitted to testify without being sworn. In its opinion the lower court explains that this occurred because “[the father] stood on his oath as a member of the Bar in good standing.” Slip op. at 9. However, the father’s status as an attorney entitled him to no special consideration. The parties must always be treated equally. The mother was sworn; so should the father have been.

Here it was especially important that the father be sworn, for his testimony was in conflict with the mother’s. By permitting the father to testify without being sworn, the lower court necessarily gave the impression that in its eyes, the father, as a member of the bar, was a more credible witness than the mother.

The lower court ordered a study by the Montgomery County Children and Youth Services of the parties’ residences and their relationship with the child. In its opinion the court states:

Reports [the reports ordered by the court] dated September 14th and September 29, 1981 were submitted and considered before final custody was awarded. Factually, the reports comported with the credible testimony summarized heretofore. Though there was positive interaction between Coreen and both her mother and father, the reports concluded it was preferable that she remain in the more settled environment of her father’s home.

Slip op. at 8.

The reports referred to were never shown to counsel for the parties; counsel were not notified by the court that it had received the reports; and counsel did not learn of the court’s reliance on the reports until the court filed its opinion, over a year after its order awarding custody to the father. Nor do we know the contents of the reports, for they are not included in the record transmitted to us.

It is settled that in a contested case, reports may not as such be admitted into evidence or considered by the court. The authors of the reports “ 'must themselves be produced, sworn and examined as witnesses and be subject to cross-examination.’ ” Wood v. Tucker, 231 Pa.Super. 461, 463, 332 A.2d 191, 192 (1974) (quoting Commonwealth ex rel. Oncay v. Oncay, 153 Pa.Super. 569, 570, 34 A.2d 839 (1943)). See also Kessler v. Gregory, 271 Pa.Super. 121, 412 A.2d 605 (1979); Rummel v. Rummel, 263 Pa.Super. 97, 397 A.2d 13 (1979). Moreover, this court “has repeatedly made plain that in a child custody case ... the record must be complete____” Gunter v. Gunter, 240 Pa.Super. 382, 390, 361 A.2d 307, 311 (1976). See also Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973); Williams v. Williams, 223 Pa.Super. 29, 296 A.2d 870 (1972).

Given the foregoing errors, we shall remand for a new hearing. The hearing shall be held as promptly as practical and shall be conducted in conformity with this opinion. Pending the hearing, the child may remain in her father’s custody. The testimony received at the new hearing shall be transcribed forthwith, and the court shall file its order, accompanied by its opinion, as promptly as practical. We think it advisable that the hearing be conducted by a different judge.

Reversed and Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.


author:
BROSKY, Judge:
      SPAETH, Judge,

text:
    455 A.2d 725
    COMMONWEALTH of Pennsylvania v. James DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1982.
    Decided Jan. 28, 1983.

      Richard E. Johnson, Philadelphia, for appellant.
    David L. DaCosta, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   BROSKY, Judge:

This is an appeal from judgments for First Degree Murder, Aggravated Assault, and Possessing Instruments of a Crime. After a trial without jury and a hearing, post-verdict motions were denied, and appellant received, inter alia, a life term of imprisonment. No issues have been presented properly in appellant’s brief. We therefore quash this appeal.

Appellant’s rather confusing brief appears to present an argument for insufficiency of evidence. However, it would be improper for us to reach this issue due to severe shortcomings in appellant’s brief. Specifically, the brief failed to include a statement of the questions involved.

Pa.R.A.P. 2111 states in relevant part, “The brief of the appellant ... shall consist of the following matters ... (3) Statement of the questions involved.” The importance of this element of appellant’s brief is made emphatically clear in Pa.R.A.P. 2116(a). “The statement .of the questions involved must state the question or questions... This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.” There being no statement of issues in appellant’s brief, there are no legal issues properly before us. We therefore have no option but to quash this appeal.

This court, has quashed appeals where Rule 2116(a) was not complied with. In Commonwealth v. Sanford, 299 Pa.Super. 64 at 66, 445 A.2d 149 at 150 (1982), Judge Wieand quashed an appeal in part because the statement of the questions “identifie(d) no specific ruling of the trial court and define(d) no specific issue for appellate review or determination.” See also Commonwealth v. Miller, 283 Pa.Super. 411 at 415, 424 A.2d 531 at 533 (1981) (Spaeth, J.).

In addition to the above case law, the Pennsylvania Rules of Appellate Procedure also provide for the quashing of appeals in circumstances such as these: “Briefs ... shall conform in all material respects with the requirements of these rules ... and, if the defects are in the brief ... of the appellant and are substantial, the appeal ... may be quashed or dismissed.” Pa.R.A.P. 2101.

Rules 2101, 2111(a)(3), 2116(a) and the cases cited above combine to result in one inescapable conclusion—this appeal must be quashed.

The appeal is quashed.

SPAETH, J., files concurring and dissenting opinion.

SPAETH, Judge,

concurring and dissenting:

Although appellant’s brief contains no Statement of Questions Involved, his argument begins with the statement, “The appellant asserts that the evidence produced by the Commonwealth is insufficient as a matter of law, to sustain a finding of first degree murder.” Brief for Appellant at 2. I think we should consider that argument on its merits. Having done so, I find it without merit.

The appeal should not be quashed. Instead, the judgment of sentence should be affirmed.

      . 18 Pa.C.S.A. 2502(a).

      . 18 Pa.C.S.A. 2702.

      . 18 Pa.C.S.A. 907.

      . The apparent loophole contained in the word "ordinarily” above would appear to refer to matters that can be considered sua sponte by the court, such as jurisdiction.


author: CERCONE, President Judge: MONTEMURO, Judge,

text:
    455 A.2d 1199
    COMMONWEALTH of Pennsylvania v. Keith WEAVER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 18, 1981.
    Filed Dec. 23, 1982.
    Reargument Denied March 2, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and MONTEMURO and VAN der VOORT, JJ.
   CERCONE, President Judge:

Appellant was convicted of burglary, criminal mischief, theft by unlawful taking, theft by receiving stolen property, possession of an instrument of crime, and conspiracy on March 20, 1980. Appellant was sentenced on the burglary and conspiracy charges to two concurrent terms of three (3) years probation under the Psychiatric Unit. The Court also ordered that an Alcoholic Evaluation be done and that appellant attend a mental health clinic if necessary. The Court conditioned the probation on a requirement that appellant remain employed. Sentence was suspended on the criminal mischief charge.

On August 14, 1979, at approximately 12:22 a.m., Philadelphia police officer, James McGinty responded to a silent alarm at Gerace’s Jewelry Store at 4424 Frankford Avenue. Upon arrival, the officer looked through the window of the jewelry store and saw two white males inside the building. On the scene investigation revealed that all entrances of the store were secured. Police called for a ladder company to bring a ladder to facilitate a check of the roof area. Officer McGinty found a hole in the roof which was approximately nineteen inches wide. Another officer found a small crowbar, screwdriver and pliers about eight to ten inches from the hole.

Both actors who had been spotted inside the store were apprehended. One was running from the roof and the other was trapped in an alley way. Both actors had merchandise from the store in their possession; both were white male juveniles.

Approximately ten to fifteen minutes after the two males were seen in the store, appellant was found by police approximately fifty feet from the hole, two buildings away, on the roof of the Gas Company. The officer described appellant as lying up against a wall in a fetal position. He testified that it is possible to walk from the roof of the jewelry store to that of the Gas Company by stepping over three two-feet high partitions.

Both parties stipulated that the owner of the premises would testify that on the morning of August 14, 1979, he went to his jewelry store where he saw the ceiling was torn down and there was a hole approximately ten by twelve inches in the roof. He would have testified that he had been at the store at 5:30 the preceding evening and that it had been left secure.

Appellant made no attempt to flee, had no merchandise on him and presented no defense at trial. On the basis of the Commonwealth’s evidence, the Court, sitting without a jury, found the appellant guilty on all counts. We reverse.

In evaluating appellant’s sufficiency of the evidence argument, we must view the facts in a light most favorable to the verdict winner, giving such party the benefit of all reasonable inferences arising therefrom. Then, it must be asked whether the evidence and the reasonable inferences arising from it are sufficient in law to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Von Aczel, 295 Pa.Superior Ct. 242, 441 A.2d 750, 752 (1981) quoting from Commonwealth v. Herman, 271 Pa.Superior Ct. 145, 412 A.2d 617 (1979). While guilt does not have to be established to a mathematical certainty, mere conjecture or surmise is not enough either. Commonwealth v. Lewis, 216 Pa.Superior Ct. 451, 419 A.2d 544 (1980); Commonwealth v. Lovette, 211 Pa.Superior Ct. 250, 413 A.2d 390 (1979). Furthermore, it is well established that the mere presence of an individual at the scene of a crime is not a sufficient circumstance upon which a finding of guilt may be predicated. Commonwealth v. Manson, 230 Pa.Superior Ct. 527, 327 A.2d 182 (1974). What does satisfy the quantum of proof necessary to convict is the combination of factors present pointing to appellant’s active participation in this crime. Commonwealth v. Smith, 490 Pa. 374, 416 A.2d 517 (1980). And, finally, a conspiracy may be inferentially established by showing the relationship, conduct or circumstances of the confederate which demonstrate a unity of purpose to accomplish an unlawful act. Commonwealth v. Cooper, 240 Pa.Superior Ct. 477, 362 A.2d 1041 (1976).

While the discovery by police of a man just two buildings away from the site of a breaking and entering at 12:20 a.m. may conjure up the highest degree of suspicion as to his involvement in the criminal incident, without more, this Court is precluded from connecting appellant with the burglary of the nearby jewelry store unless the connection or association of appellant with those apprehended is established beyond a reasonable doubt insofar as the crime is concerned.

This is consistent with established case law.

In Commonwealth v. Manson, supra, a police officer responded to a burglary call at a certain premises. Arriving there, he saw a co-defendant on the porch of an adjoining property and stopped him. Then he saw appellant standing near a window that had been boarded up, but from which several boards were missing. The officer observed a pile of household goods inside the house next to the window. Appellant told officers on his arrest that he did not go into the premises, but that “the other two guys” did. Nevertheless, this court reversed the judgment of sentence because it felt that clear and credible evidence establishing appellant’s participation in the crime was wanting.

The Supreme Court of Pennsylvania in Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973) and in Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976) found the connection between the crimes committed and the respective appellants as too remote and it therefore reversed the judgments of sentence in both cases. In the Roscioli case, appellant was first seen by police officers outside of premises which were in the process of being burglarized. He was standing with two companions near a phone booth, just one foot from a pane of glass that had been removed to gain entrance to the premises. The Commonwealth argued this proximity, that appellant and his friends fled when the police car arrived, and that appellant had admitted knowing the two suspects who were found inside. In the Goodman case, at 3:00 a.m. while police were detaining a suspect who had emerged carrying a box of meat from a doorway which led to both a burglarized store and a stairway to an upstairs apartment, appellant appeared in the same doorway and was arrested. Both men were ordered to stand against the wall. As the officer approached both men, the suspect threw the meat at him and both men fled in opposite directions.

In both Roscioli and Goodman even the added element of flight was not considered sufficient evidence of involvement when coupled with the presence of appellants at the scenes.

Appellee urges us to consider other “roof-top” burglary cases in which the evidence was found to be sufficient. But we hasten to emphasize that it was not the locus of the appellants on roof-tops per se that constituted sufficient cases, rather other corroborative information evidenced by the surrounding circumstances supplied the missing links in those cases.

For example, in Commonwealth v. Viall, 278 Pa.Superior Ct. 613, 420 A.2d 710 (1980), a police officer was dispatched to a delicatessen for a “burglary in progress”. The officer arrived and found the place had been ransacked. He heard footsteps on the roof. Going outside, the officer shone his flashlight directly at a man who was lowering himself over the edge of the same roof. The officer recognized Viall and called to him to stop. Viall fled in the opposite direction, but was apprehended soon after.

In the instant case, two white juveniles were seen inside the jewelry store. Appellant, a black man of twenty-seven years, was spotted lying against a wall two roof-tops away. While Viall’s direct involvement in the burglary can be inferred by the quick chain of events, the lack of other suspects, and his proximity to the premises, the within appellant’s involvement as an accomplice falls short of convincing.

Evidence of accomplice liability was sufficient in Commonwealth v. Whalen, 189 Pa.Superior Ct. 351, 150 A.2d 133 (1959), Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972), and In the Interest of Gonzalez, 255 Pa.Superior Ct. 217, 386 A.2d 586 (1978). In all of these cases, the defendants were spotted on roof-tops. However, in Whalen, circumstances led to a well-nigh conclusive inference that defendant was one of two people seen on a roof through which a burglary was attempted. Additionally, defendant’s spontaneous explanation of his presence there was incredible. In Cimaszewski, in a matter of seconds, police arrived at the scene of a burglary in progress. Two men fled from the rear of the building. One man was apprehended immediately. Noises from the back of the property directed police there, and they saw the first suspect’s brother, the appellant, on the roof of a nearby shed. The court focused on the time involved and the sequence of events as providing the requisite quantum of proof for the defendant’s involvement in the burglary. Finally, in another roof-top case, Gonzalez, the evidence to support a conspiracy to commit a burglary charge was attacked as insufficient. In upholding the conviction, the court first emphasized the Commonwealth’s burden to show at least circumstantial evidence of a corrupt agreement. Then the court explained that testimony established that a jewelry store had been broken into, that two individuals were seen jumping from the roof of an adjacent building and running down an alley shortly after the burglar alarm sounded, and that the appellant was one of the two individuals.

In the instant case, there is no evidence of appellant’s being any closer than fifty feet from the scene of a burglary. There is no evidence that appellant ever had his hands on the burglary tools, nor that he acted as a look-out for the juveniles. As the alarm which sounded was silent, without additional information, his distance from them cannot be explained as a desire to escape apprehension for the burglary. And contrary to appellee’s assertion, there was no evidence presented that the roof-top in question was inaccessible by ordinary means.

In fact, the evidence is as consistent with the inference that appellant was on the Gas Company roof, two buildings away, uninvolved in what was occurring, as it is with the inference that appellant was a participant in the burglary. Hence, appellant’s guilt is not proved beyond a reasonable doubt, and the conviction may not stand.

Judgment of sentence reversed and appellant discharged.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

I dissent. Considering the totality of circumstances, I cannot agree with the majority’s application of the “mere presence” standard to the facts of this case. This standard, in my opinion, is applicable in situations where per chance anyone could have stepped innocently within close proximity to the scene of the crime. This would include doorways, Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976), sidewalks, Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973) and any other common or public area. However, it is highly unlikely that a person could find himself innocently and coincidentally situated on a rooftop at 12:30 in the morning, a mere fifty feet away from the commission of a crime. Concededly, it is possible that a person thus situated may have been disinterested in and unaware of the burglary that was in progress and certainly a vivid imagination can produce an infinite number of reasons for the appellant’s presence at this particular location so late at night. But to pursue this line of reasoning, I believe, is to ignore the mandates of common sense.

Although we recognize that the mere presence of an individual at the scene of a crime is not sufficient in itself to support a finding of guilt, Commonwealth v. Manson, 230 Pa.Super. 527, 327 A.2d 182 (1974), the appellant’s presence was not so minimal as to justify a reversal of his conviction. The test for sufficiency of the evidence requires an acceptance of the evidence presented by the Commonwealth in its most favorable light and the reasonable inferences that can be drawn therefrom. Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978). The majority cites a number of “rooftop” cases where the inference of guilt was drawn from a combination of factors present, including the appellant’s participation in the crime. See, Commonwealth v. Whalen, 189 Pa.Super. 351, 150 A.2d 133 (1959); Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972); In the Interest of Gonzales, 255 Pa.Super. 217, 386 A.2d 586 (1978). Likewise, in Commonwealth v. Jones, 298 Pa.Super. 199, 444 A.2d 729 (1982), this court sustained the conviction of a person who, upon fleeing from the scene of a rooftop burglary, was found hiding from the police in a doorway that opened onto a neighboring alley. In this case, we held that “an attempt to flee or conceal oneself from the police is an additional circumstance from which guilt can be inferred.” Id., 298 Pa.Superior Ct. at 204, 444 A.2d at 731 (emphasis added). Moreover, it is established that “when a person commits a crime, knowing that he is wanted therefor, and flees or conceals himself, such conduct is evidence of the consciousness of guilt and may form the basis in connection with other proof from which guilt may be inferred.” Commonwealth v. Whack, supra, 482 Pa. 142, 393 A.2d at 419 (quoting Commonwealth v. Tinsley, 465 Pa. 329, 333, 350 A.2d 791, 792-793 (1976)) (Emphasis added). Even where no direct evidence is presented to establish actual knowledge that he was being sought by police, circumstantial proof of such knowledge may be sufficient. Commonwealth v. Osborne, 433 Pa. 297, 249 A.2d 330 (1969).

In the instant case, in addition to the appellant’s unusual location, the lateness of the hour, the absence of any evidence to account for his presence at the scene and the close proximity to the criminal occurrence (his position on the rooftop was easily accessible from the roof where the crime took place), it is emphasized that minutes after co-defendants spotted the police, the appellant was found covering his head and lying in a fetal position closely behind a two-foot high partition. His behavior in the context of the accompanying circumstances unquestionably infers an attempt to conceal himself from the arresting police officers and sufficiently indicates, beyond speculation, conjecture and reasonable doubt that the appellant is guilty.

I would affirm the judgment of sentence.

      . The lower court granted appellant’s motion in arrest of judgment as to possession of an instrument of crime, but denied his other post-verdict motions on May 15, 1980.

      . These were an Accutron watch valued at $250.00 and 2 knives valued at $1 each.