author:
McEWEN, Judge:
      BROSKY, Judge,

text:
    488 A.2d 1117
    Rose Mary WAINAUSKIS, Appellee, v. HOWARD JOHNSON COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1983.
    Filed Feb. 15, 1985.

      Giles J. Gaea, Pittsburgh, for appellant (at 555) and appellee (at 565).
    Jon L. Friedman, Pittsburgh, for appellant (at 565) and appellee (at 555).
    Before BROSKY, McEWEN and BECK, JJ.
   McEWEN, Judge:

Howard Johnson Company [hereinafter appellant] appeals from the $100,000 judgment entered against it in this malicious prosecution action following denial of its motions for judgment n.o.v. and new trial. We affirm.

Appellee, Rose Mary Wainauskis, filed a complaint against appellant, her former employer, setting forth four causes of action, specifically, claims for malicious abuse of process, wrongful discharge, slander and intentional infliction of emotional distress. When appellee had concluded the presentation of the liability portion of her case, the distinguished Judge S. Louis Farino entered a nonsuit as to her causes of action for wrongful discharge, slander and intentional infliction of emotional distress. The jury returned a verdict in favor of appellee and against appellant in the amount of $100,000 on the count for malicious prosecution.

Appellant argues that it is entitled to judgment n.o.v. as the trial court erred when it refused to hold that, as a matter of law, there was probable cause for the institution of criminal proceedings against appellant. Appellant relies upon the opinion of this Court in DeSalle v. Penn Central Transportation Co., 263 Pa.Super. 485, 488, 398 A.2d 680, 681 (1979) for its position.

“In reviewing the denial of a motion for judgment n.o.v., we must view the evidence in the light most favorable to the verdict-winner. Only evidence supporting the verdict may be considered with the rest being rejected. All conflicts in the evidence are to be resolved in favor of the verdict-winner____” Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 478, 448 A.2d 6, 8 (1982). Accord McDevitt v. Terminal Warehouse Company, 304 Pa.Super. 438, 441, 450 A.2d 991, 993 (1982); DeSalle v. Penn Central Transportation Co., supra 263 Pa.Super. at 488, 398 A.2d at 681. The evidence produced at trial reveals that appellee began working for appellant as a part-time bookkeeper in 1965. A few months thereafter appellee was accepted into appellant’s management trainee program and for the next four and one-half years was employed as an assistant manager of appellant’s Scott Township store. In 1970, appellee accepted employment with another employer and left Howard Johnson Company. Appellee worked elsewhere until 1976, when she returned to Howard Johnson’s Scott Township restaurant. She was then transferred to the McKnight Road store as an assistant manager until late 1977, when she became assistant manager of the Boulevard of Allies restaurant. On July 29, 1978, appellee returned to the Scott Township restaurant as assistant manager. The store was then managed by a Mr. Andrews who was transferred to another location in August. Appellee was informed that a replacement manager would be assigned to the Scott Township facility but that until such time as the replacement manager arrived, she was “in charge” of the restaurant.

The area manager for appellant testified that at all times prior to the incident giving rise to the instant action, appellee was considered a “good employee” of Howard Johnson Company. Appellee’s duties included authorizing employee time sheets, preparing work schedules, making daily cash receipt deposits, completing daily deposit slips, weekly sales and cash reports and forwarding copies of all such reports to appellant’s headquarters and to the area manager. Sometime in December of 1978, appellant became aware that the daily cash receipts from the Scott Township restaurant were not being deposited in accordance with company regulations. Bookkeeping in all of appellant’s stores was based upon twenty-four hour periods which began and ended at 3:00 p.m. each day. Receipts from each 24 hour period were to be deposited in the bank each day in the late afternoon or early evening, provided that no employee was to make such deposits alone after dark. During the months of November and December of 1978, appellee assumed the duties of the cook each afternoon after 2:00 p.m. and, therefore, was not able on most days to deposit the daily receipts before dark. She, therefore, deposited the day’s receipts the next day, usually between the hours of 10:00 a.m. and 12:00 p.m., by placing the deposit bag in the night depository at the bank.

When Area Manager Thomas Jenkins was directed to ascertain why deposits from the Scott Township restaurant were not being made in a timely fashion, and he informed appellee on December 29, 1978, that bank records indicated her deposits were being made late, they both proceeded that day to the bank to ascertain why the deposits were being entered late. They learned there that those deposits which appellee made by depositing bags in the night depository during banking hours were not opened and received by the bank until the following morning. As a result, the deposits were entered by the bank two days after the day on which they were received by the store. Appellee decided while at the bank to pick up the bank deposit bags previously placed in the night depository which the bank customarily held until an authorized employee retrieved them. Appellee then learned, and informed Mr. Jenkins, that no deposit bags were in the possession of the bank. Further inquiry revealed that two of the deposit bags used by the Scott Township store were missing and that the bank had no record of the deposits allegedly made on December 23, December 26, December 27 and December 28. The bank was unable, after further investigation, to discover any record of the missing deposits having been made. Mr. Jenkins informed headquarters of the discrepancy between appellee’s records and the bank’s records. Appellee continued to perform her usual duties at the Scott Township restaurant until January 4, 1979.

On that date, Earl Bleser, Manager of Security and Loss Prevention for Howard Johnson Company, after reviewing the sales and cash reports and deposit slips regularly forwarded from the Scott Township store by appellee, discussed the matter with Area Manager Jenkins for approximately 30 minutes before proceeding to interview appellee at the Scott Township store.

Mr. Jenkins testified at trial that he thought that he had informed Mr. Bleser that at least six people were in possession of the combination to the safe located in the Scott Township store but admitted that he had not told Mr. Bleser that appellee called him during the first week of December and reported finding a deposit bag containing cash hidden in the linen closet. Appellee testified that when she discovered the money secreted in the closet she called Mr. Jenkins, asked him what measures she should undertake and asked him to change the combination on the store safe. Although Mr. Jenkins assured appellee that he would have the combination to the safe changed, he failed to do so prior to January 4, 1979.

Appellee testified that she explained to Mr. Bleser her procedures for depositing daily receipts, namely, that she would complete her deposit slips and reports in the late afternoon or early evening, place the cash and deposit slips in the bank depository bag and place the bag in the safe. The following morning, after arriving at the store and attending to a few simple tasks, appellee would place the sealed deposit bag in her pocketbook, leave the restaurant and drive a few blocks to the bank where she would place the bag in the night depository slot rather than wait in line inside the bank to make her deposit.

Appellee further testified that she gave Mr. Bleser the names of seven other Howard Johnson employees who knew the combination to the restaurant safe, informed him of her discovery of the deposit bag secreted in the linen closet and told him of Mr. Jenkins’ failure to pursue cautionary measures in response to the discovery of the hidden deposit bag. Appellee also stated that she informed Mr. Bleser that she had not worked on December 28, 1978, one of the dates for which the daily receipts were missing.

Approximately twenty-five minutes after the interview had commenced, Mr. Bleser informed appellee that in his opinion “[she] was in charge of the store and [she] was responsible for the theft” and asked appellee if she was willing to make restitution. When appellee refused and explained that she would not make restitution as she had not taken the money, Mr. Bleser told appellee that she was dismissed, that she was to balance the contents of the safe with Mr. Jenkins and, that she was to leave the premises. Lieutenant Kowalo of the Scott Township police department arrived shortly thereafter in response to Mr. Bleser’s call and explained to Mr. Bleser that the police department would not undertake the prosecution of appellee. Lieutenant Kowalo suggested to Mr. Bleser that he contact the district justice and the district attorney’s office if he wished to press charges. Mr. Bleser did so immediately by completing a criminal complaint charging appellee with the theft of the four missing deposits. He also subsequently testified against appellee at the preliminary hearing. When the first jury to try appellee on the criminal charges could not reach a verdict, a mistrial was declared. When appellant was retried, the second jury acquitted her. She thereafter instituted the present action against her former employer.

Mr. Bleser testified at trial that he never investigated appellee’s prior employment history or her personal background and was even unaware of how long she had been employed by Howard Johnson’s at the time that he decided to file criminal charges against her. Mr. Bleser testified, moreover, that he spoke only with Mr. Jenkins and appellee before he concluded that appellee was responsible for the theft of the monies.

In contradiction to appellee’s testimony, Mr. Bleser testified that he was never informed of the incident involving the deposit bag found in the linen closet and that while Mr. Jenkins told him that appellee did not work on December 28, Bleser testified that appellee had told him that she had worked on that date.

Mr. Bleser testified at trial that he determined to prosecute appellee for theft based upon the fact that “she told me she took the money.” When counsel for appellee inquired into Mr. Bleser’s statement that he filed criminal charges against appellee as a result of her admission to him that she took the money, the following exchange took place:

Mr. Bleser reading from his deposition:
All right. Question: “Did you ask her to sign a statement?” Answer: “No, I didn’t.”
Question: “Why not?” Answer: “She never admitted taking the money.”
Q. She never admitted taking the money? That is what you said in that deposition?
A. That is what it says.
Q. And in court under oath just a few minutes ago you said she admitted taking it.
* * ‡ *
Q. Which is the truth, Mr. Bleser?
Q. She told me she placed the money in her pocketbook and she walked out of the restaurant with the money. She said she had no idea what happened to it after that.
Q. She told you her procedure. She didn’t tell you what she did on specific days.
A. She told me that she took the money.
Q. Did she tell you her procedure—
A. She told me she took it.
Q. She didn’t tell you what she did on the 26th, 27th and 28th?
A. Yes, she did.
Q. And the 23rd?
A. Yes.
Q. She told you her procedure?
A. No. She told me each day that she put her money in her pocketbook and went out the door with the money in her pocketbook.
Q. I’ve asked you this maybe three or four times within the last 20 minutes.
Now, Mr. Bleser, did she admit taking the money? And I’ll have this read back if you want me to. But you told me — you told me and these members of the jury and the Court that she admitted taking the money.
A. That is correct. She did.
Q. And here you said she never admitted taking the money. Which is it?
Q. She admitted taking the money.
A. That’s your answer?
A. That is right.
* * * * * *
Q. I asked you in here: did she admit taking the money? In fact, I didn’t even ask that question like that. I asked you this question, if I’m not mistaken. You just read it. And the question was: “Question: Did you ask her to sign a statement?” And the answer was, “No, I didn’t.” And then there was the question: “Why not?” Now, so I didn’t give you a cue as to which way to go you then said “Answer: She never admitted taking the money.”
Now, those are your words. You are able to understand those six words. You know what that means as a policeman.
A. Okay. I tried to answer that.
Q. But in court here today within the last 20 minutes, you said she did admit taking the money.
A. Right. And if you are referring to stealing the money in that context, like saying she stole the money, no, she didn’t admit to that.
Q. She never admitted taking the money in that context?
A. In that context, no. She never admitted stealing any money.
Q. She never did?
A. No.
[N.T. 359-363]

Mr. Bleser, moreover, testified in contradiction to appellee, that she told him that she normally placed the daily receipts in the safe for only 45 minutes to an hour each day and then deposited them in the bank. He further testified that it was on the basis of appellee’s alleged statement to him that “she made up the deposit slips, she put the money in her pocketbook, she went out of the restaurant to the bank with the deposits and didn’t know what happened to [them],” that he determined that appellee was guilty of the theft of the missing deposits.

The initial argument of appellant is that the court erred when it refused to hold that, as a matter of law, there was probable cause for the institution of criminal proceedings against appellant.

“In an action for malicious prosecution, the plaintiff must prove that the defendant instituted proceedings without probable cause, with malice, and that the proceedings were terminated in favor of the plaintiff. Absence of probable cause is an indispensible element of the action, and it is not conclusively established by an adjudication of innocence in the prior proceeding.” DeSalle v. Penn Central Transportation Co., supra, 263 Pa.Superior Ct. at 490-491, 398 A.2d at 682-683 (citations and footnote omitted). Accord Hugee v. Pennsylvania Railroad Co., 376 Pa. 286, 289, 101 A.2d 740, 742 (1954); Weiss v. Equibank, 313 Pa.Super. 446, 455, 460 A.2d 271, 276 (1983); Shelton v. Evans, 292 Pa.Super. 228, 232, 437 A.2d 18, 20 (1981); Casa di Sardi, Inc. v. Alpha Motors, Inc., 227 Pa.Super. 415, 418, 323 A.2d 288, 290 (1974).

We agree with appellant that the presence or absence of probable cause is a question exclusively for the court where there are no material conflicts in the testimony. DeSalle v. Penn Central Transportation Co., supra, 263 Pa.Superior Ct. at 491, 398 A.2d at 683; Restatement (Second) Torts, § 673. However, where, as here, “ ‘material facts are in controversy, the question is a mixed one [of law and fact] and it becomes the duty of the jury, under proper instructions from the court as to what will justify a criminal prosecution, to say whether the plaintiff in the civil action has shown want of probable cause upon the part of the defendant.’ ” Hubert v. Alta Life Insurance Co., 136 Pa.Super. 147, 150, 7 A.2d 98, 100 (1939) quoting Heisey v. Vansant, 126 Pa.Super. 373, 376, 190 A. 726, 728 (1937). Accord Hugee v. Pennsylvania Railroad Co., supra 376 Pa. at 289, 101 A.2d at 742; Byers v. Ward, 368 Pa. 416, 421, 84 A.2d 307, 310 (1951); Simpson v. Montgomery Ward & Co., 354 Pa. 87, 97, 46 A.2d 674, 679 (1946); Curley v. Automobile Finance Co., 343 Pa. 280, 289, 23 A.2d 48, 53 (1941); DeSalle v. Penn Central Transportation Company, supra 263 Pa.Super. at 491, 398 A.2d at 683.

“Probable cause is defined as ‘... a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent man in the same situation in believing that the party is guilty of the offense.’ ” Hugee v. Pennsylvania Railroad Co., supra 376 Pa. at 290, 101 A.2d at 742 quoting Miller v. Pennsylvania Railroad Co., 371 Pa. 308, 314, 89 A.2d 809, 811-812 (1952). Accord Neczypor v. Jacobs, 403 Pa. 303, 308, 169 A.2d 528, 530 (1961). The reasonable ground of suspicion, however, must not be based upon an inadequate and unreasonable investigation of the circumstances concerning the alleged criminal conduct. See Hugee v. Pennsylvania Railroad Co., supra; Neczypor v. Jacobs, supra.

Appellee testified that after a short period of discussion, Mr. Bleser accused her of the theft of the deposits, stating that “no one else could have done this” and that he “did not have to ask or talk to anybody else but [appellee].” Appellee also testified, in contradiction to Mr. Bleser, that she had informed him of her discovery of the deposit bag hidden in the linen closet and of the fact that she had not worked on December 28, 1978. Mr. Bleser admitted that he had not asked appellee to submit to a polygraph test, had not inquired into her employment history or personal background, and had not interviewed the other persons who were in possession of the combination to the safe. Moreover, Mr. Bleser admitted that his decision was based primarily on the fact that appellee allegedly told him she took the money. Material differences of fact were raised by the evidence received at trial. The trial court, therefore, properly submitted the question of want of probable cause to the jury with proper instructions on the issue. Our review of the evidence in the light most favorable to appellee, moreover, compels the conclusion that the jury was entitled to find that the proceedings against appellee were initiated with undue haste, on insufficient grounds and without probable cause. See Hugee v. Pennsylvania Railroad Co., supra.

As the Supreme Court observed in Neczyor v. Jacobs, supra, 403 Pa. at 309, 169 A.2d at 531, “when no immediate action is called for and time may be devoted to adequate preliminary investigation, the protection of the individual demands such an investigation because the hardships, humiliation, suspense and expense to which an innocent person is subjected in an improper prosecution cannot be compensated for by a mere acquittal.”

Moreover, we believe that the evidence was sufficient to permit the jury to find the existence of malice. Malice may be inferred from want of probable cause. Hugee v. Pennsylvania Railroad Co., supra 376 Pa. at 291, 101 A.2d at 743. Therefore, the evidence which we have found to be sufficient, when viewed in the light most favorable to appellee, to sustain a finding of want of probable cause, was sufficient, ipso facto to sustain the finding of malice.

Appellant next asserts that it is entitled to judgment n.o.v. because appellee’s first trial resulted in a hung jury and there was no evidence that any of the triers of fact had been imposed upon.

Appellant’s argument disregards the fact that appellee was subsequently acquitted of all charges and that the jury in the malicious prosecution action, based upon the evidence submitted to it, could have reasonably found that appellant’s employees withheld material evidence and failed to make a full and fair disclosure of all relevant facts to the prosecuting authorities. See and compare Miller v. Pennsylvania Railroad Co., supra 371 Pa. at 316, 89 A.2d at 813; DeSalle v. Penn Central Transportation Co., supra 263 Pa.Super. at 493, 398 A.2d at 684; Hubert v. Alta Life Insurance Co., supra 136 Pa.Super. at 151, 7 A.2d at 101; Restatement (Second) Torts § 663(2), Comment (h). The trial court, therefore, properly refused appellant’s motion for judgment n.o.v.

Appellant also argues that the trial court erred in refusing the following point for charge:

[T]he actions of the District Magistrate in holding the plaintiff to be tried in criminal court, the filing of an information against the Plaintiff by the District Attorney, the hung jury, and the rulings of the criminal court judges are affirmative evidence of probable cause. DeSalle v. Penn Central Transportation Company [263 Pa.Super. 485] 398 A.2d 680 (1979).

Judge Farino refused the point for charge on the grounds that appellant’s “analysis that the determination of the other judicial officers was affirmative evidence of probable cause does not take into consideration that those determinations were made on the basis of information supplied solely by the [appellant]. As previously noted above, there was a factual dispute as to whether the [appellant] had given accurate and full information to the judicial officers.” (Trial Court opinion at 6) (emphasis in original).

It is well-settled that an appellate court, when reviewing an allegation of error in the trial court’s charge, must “ ‘look to the charge in its entirety, against the background of the evidence in each case, in order to determine whether an error was committed and whether any prejudice resulted.’ ” Brogley v. Chambersburg Engineering Co., 306 Pa.Super. 316, 322, 452 A.2d 743, 746 (1982) quoting Jacob Kline Cooperage, Inc. v. George W. Kistler, Inc., 286 Pa.Super. 84, 89, 428 A.2d 583, 586 (1981). The trial judge properly charged the jury on the issue of probable cause for the institution of the criminal proceedings against appellee. It was not error to refuse, under the facts of the instant case, the point submitted by the appellant, since appellee had sought to establish throughout the trial that appellant had withheld or misrepresented material facts to the prosecuting authorities. The trial court, therefore, properly declined the submitted point for charge.

Appellant’s final contention is that the court erred in refusing to grant its motion for a new trial as the verdict in favor of appellee was against the weight of the evidence. The scope of appellate review of the grant or denial of a new trial on the ground that a verdict is against the weight of the evidence is well-settled:

[Resolution of fact issues by a jury should not be disturbed unless such findings are clearly against the weight of the evidence. [W]here a trial judge has refused a motion for new trial on the ground that the evidence was sufficient, such an action should not be disturbed unless there is an abuse of discretion or a clear error of law.

Baldino v. Castagna, 505 Pa. 239, 245, 478 A.2d 807, 810 (1984) (citations omitted). Accord Burrell v. Philadelphia Electric Co., 438 Pa. 286, 289, 265 A.2d 516, 518 (1970); Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 323, 249 A.2d 563, 566 (1969); Dixon v. Andrew Tile & Manufacturing Corporation, 238 Pa.Super. 275, 282, 357 A.2d 667, 670 (1976).

Our review of the record persuades us that the conflicting evidence presented by the parties provided a sufficient basis upon which the jury could reasonably and properly have found that appellant instituted criminal charges against appellee without probable cause and with malice. The trial court, therefore, properly refused to grant appellant’s motion seeking a new trial on the grounds that the verdict was against the weight of the evidence.

We now consider the cross appeal of appellee and her assertion that the trial court erred in refusing to add Rule 238 delay damages to the amount awarded to appellee by the jury. Appellee sought compensation in the malicious prosecution action for monies expended for legal fees, past and future medical expenses and past and future lost wages. Appellee additionally sought compensatory damages for mental anguish, humiliation and injury to her reputation. The jury returned a general verdict in favor of appellee in the amount of $100,000. “Pa.R.C.P. 238 applies only to actions to recover damages for death, personal injury and/or property damage.” Colodonato v. Consolidated Rail Corporation, 504 Pa. 80, 83, 470 A.2d 475, 477 (1983) (emphasis supplied). Appellee contends that an action for damages for malicious prosecution is, in fact, an action for “bodily injury”. We are constrained to disagree.

This Court, in an opinion written by our distinguished colleague Judge James R. Cavanaugh, has held that Rule 238 delay damages could not be awarded in an action for tortious interference with a contract where the jury returned compensatory damages for lost earnings and profits. See Temporaries, Inc. v. Krane, 325 Pa.Super. 103, 472 A.2d 668 (1984). While we have similarly found no cases discussing the applicability of Rule 238 to an action for malicious prosecution, we believe that an action for malicious prosecution is not an action for “damages for bodily injury”. The trial court, therefore, properly held that Rule 238 was inapplicable to the instant action. See and compare Colodonato v. Consolidated Rail Corporation, supra; Erie Insurance Exchange v. McGee, 327 Pa.Super. 56, 474 A.2d 1171 (1984); Greenspan v. United Services Automobile Association, 324 Pa.Super. 315, 471 A.2d 856 (1984); Mattox v. City of Philadelphia, 308 Pa.Super. 111, 454 A.2d 46 (1982); Merling v. Commonwealth, Department of Transportation, 79 Pa.Cmwlth. 121, 127, 128, 468 A.2d 894 (1983).

Judgment affirmed.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I agree with the result reached by the majority, but wish to comment further upon appellee’s claim that she was entitled to delay damages under Pa.R.C.P. 238. Although I agree with the majority that Rule 238 does not apply to an action for malicious prosecution, I believe that conclusion requires some explanation. As noted by the majority, damages for malicious prosecution “may include compensation for mental anguish, humiliation, and injury to feelings.” Shelton v. Evans, 292 Pa.Super. 228, 233, 437 A.2d 18, 21 (1981). Instantly, appellant sought damages for such injuries. Certainly a broad construction of the terms “bodily injury” could encompass these types of injuries. The question, however, is whether we should construe the term so broadly. For the reasons that follow, I conclude that we should not do so.

The primary purpose of Rule 238 is to encourage pre-trial settlement of civil actions for bodily injury, death or property damages in order to alleviate the judicial congestion and delay caused by these types of actions. Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981). I believe that the number of malicious prosecution actions is so small relative to the number of actions for bodily injury (of a less broadly defined type), death, or property damage that I do not believe they contribute significantly to judicial congestion and delay. Also, I believe the difficulty in computing the proper amount of compensation for the type of injuries involved instantly tends to make pre-trial settlement so difficult that it would make the encouragement of Rule 238 of little value. Therefore, I would decline to construe the term “bodily injury” to encompass those injuries for which recovery is sought in a malicious prosecution action and agree with the majority that the trial court properly held that Rule 238 was inapplicable.

      . Appellee has filed a cross-appeal seeking reversal of the non-suit on the count for intentional infliction of emotional distress only in the event that this Court reverses the order of the trial court dismissing appellant’s motions for judgment n.o.v. and new trial.

      . Mr. Bleser admitted, inter alia, that the Area Manager informed him that appellant did not work on December 28, 1978, but did not so inform the authorities allegedly due to the fact that appellant told him she had worked on December 28, 1978. Both juries in the criminal actions were told that appellee worked on December 28, 1978.

      . We note that no exceptions to the trial court’s instructions to the jury were made by appellant at the conclusion of the charge. An exception to the refusal to charge on the submitted point had previously been requested and granted.

      . Pa.R.C.P. 238 provides, in relevant part:
      "[I]n an action seeking monetary relief for bodily injury, death, or property damage or any combination thereof, the court ... shall (1) add to the amount of compensatory damages ... in the verdict of a jury ... damages for delay at ten (10) percent per annum, not compounded, which shall become part of the ... verdict....’’

      . Compensatory damages in an action for malicious prosecution “may include all of the plaintiffs actual expenses in defending himself, compensation for loss of liberty or time, harm to reputation, physical discomfort, interruption of business, mental anguish, humiliation, and injury to feelings.” Shelton v. Evans, 292 Pa.Super. 228, 233, 437 A.2d 18, 21 (1981).

      . Cf. Miller v. Carnation Co., 39 Colo.App. 1, 564 P.2d 127 (1977). In that case, the court construed the term "personal injuries" in the Colorado statute providing for delay damages, Col.Stat.Ann.1973 § 13-21-101, as meaning those injuries which impair well-being or the mental or physical health of the victim.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    488 A.2d 1126
    COMMONWEALTH of Pennsylvania v. Clyde CHARLES, a/k/a Crawford, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1984.
    Filed Feb. 15, 1985.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Edward M. Clark, Assistant District Attorney, Indiana, for Commonwealth, appellee.
    Before ROWLEY, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

In this case, appellant, Clyde Charles, a/k/a Clyde Crawford, urges this Court to vacate his sentence of 672 to 13 years on each of two convictions for violation of 18 Pa.C.S. Sec. 3123 (Purdon’s 1983) and remand for resentencing. We affirm the judgment of sentence.

Appellant pleaded guilty to 18 Pa.C.S. Sec. 3123, involuntary deviate sexual intercourse, on June 2, 1983, after a 14-year-old boy told his mother, and subsequently, law enforcement authorities, that the following sequence of events had occurred. Appellant, then 56 years old, had asked the boy to run an errand for him; he then invited him into his home, and told him to disrobe. The boy complied, and appellant laid him on a bed and committed sodomy upon him. Appellant let the boy get up, had a brief talk with the boy in which he warned him about telling anyone of the event, and then committed a second act of sodomy on the boy. Appellant then gave the boy $3 and promised to give him a bicycle and more money if he would return and repeat the sexual acts. The boy told his mother about the instance the following day, and appellant was arrested.

At trial, appellant pleaded guilty to the charge of violating Sec. 3123 twice. Sentencing was deferred; on July 11, 1983, appellant was sentenced to 6V2 years to 13 years incarceration on each count, sentences to run consecutively. Appellant filed a timely motion to reconsider sentence.

Appellant complains here, among other things, that he was subjected to double jeopardy and that the sentence rested in part on improper factors. We address his contentions in order.

Appellant argues that the court went through a fact-finding procedure at the sentencing hearing, and that this proceeding was duplicative of the first time appellant appeared before the court on the same charges. This, he argues, constitutes double jeopardy, and violates his rights under the Fifth and Fourteenth Amendments of the Constitution.

The Commonwealth predictably argues that the second proceeding did not subject appellant to double jeopardy, citing In the Interest of Stephens, 501 Pa. 411, 461 A.2d 1223 (1983). It argues that not every bifurcated proceeding is violative of double jeopardy principles, and that the rule enunciated in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), has not been abridged.

It seems plain that the principal case cited by appellant, Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), is inapposite. In that case, the defendant had been convicted of murder, and the jury fixed his sentence at life imprisonment rather than death after deciding no aggravating circumstances existed. The state then attempted, at a new trial, to argue that the death sentence should be imposed; the Supreme Court held that such an attempt placed Bullington in double jeopardy, since he had been acquitted of the aggravating circumstances.

Here, appellant was not sentenced on the conviction for IDSI until the sentencing hearing. He was not convicted at the sentencing hearing of any crime to which he had not pleaded guilty previously. He has not been “twice put in jeopardy of life or limb.”

Appellant’s second argument is that he was denied due process because the sentencing court took into account the victim’s non-consent when imposing punishment. The Commonwealth agrees that consent was a factor in sentencing, but argues that it was a permissible factor, citing appellant’s knowledge that consent was to be an issue, that appellant did not object to the Commonwealth’s version of the facts, and that appellant’s lawyer cross-examined the victim at the sentencing hearing.

Sentencing courts may consider evidence that might not be admitted at trial. Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982). But they may not disregard pertinent facts, disregard the force of evidence or commit errors of law. Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982).

The question is this: Was it error for the sentencing court to inquire into whether the sexual acts were consensual when appellant had pleaded guilty to Sec. 3123? We think not.

The Sentencing Guidelines subdivide IDSI into two offenses for two offense gravity scores:

Sec. 3123 Involuntary Deviate Sexual Intercourse (except where the victim is 14 years of age or over and the act was consensual).......9.
Sec. 3123 Involuntary Deviate Sexual Intercourse (consensual act, victim is 14 years of age or over).....................................5.

At first glance, this is puzzling, since the statute forbids deviate sexual relations with persons under the age of 16, not 14. On studying related sexual offenses, however, we find a similar scheme in offense gravity scores for rape and statutory rape:

Sec. 3121 Rape....................................................9.
Sec. 3122 Rape, Statutory..........................................5.

[31 We conclude that the Sentencing Commission was attempting to parallel in IDSI offenses the Sentencing Guidelines for rape and statutory rape. Statutory rape, requiring no proof of lack of consent, is deemed a less serious offense under the Guidelines than is rape, which requires a showing of forcible compulsion.

The statute making involuntary deviate sexual intercourse a crime makes no distinction between acts done with consent and acts done with no consent when the victim is under 16. If a defendant is convicted of IDSI, the Commonwealth has proven one of five things: (1) forcible compulsion existed; (2) there was a threat of forcible compulsion; (3) the victim was unconscious; (4) the victim was mentally deficient; or (5) the victim was under 16. For the first four, the offense gravity score is 9; for the last, the offense gravity score could be 9 or 5, depending on the sentencing court’s determination of the age of the victim and whether there was consent. If the victim was under 14, the offense gravity score is 9. If the victim was over 14, the offense gravity score might be reduced to a 5 if the defendant successfully argues that the victim consented to the act.

We acknowledge that the statutes are inconsistent. If a defendant is convicted of statutory rape, the offense gravity score will be a 5; he need not prove consent. If a defendant is convicted of IDSI with a victim over 14, but under 16, he must prove consent before the offense gravity score will be a 5. If he were charged with rape, consent would be a defense; if he were charged with statutory rape, consent would be no defense, but the recommended penalty lighter. Here, consent is a defense only to a heavier penalty.

In light of the plea colloquy in the record, we do not believe the court erred in considering whether consent existed. The Court heard argument by defense counsel that the offense should be graded a 5, and replied that if there had been a plea bargain to that effect, the Court would reject it. Defense counsel conferred with appellant in court and appellant reiterated that he wanted to plead guilty in the event the Court rejected the proposed offense gravity score of 5. Clearly, appellant understood that by pleading guilty, he could be sentenced to a longer sentence than his lawyer had anticipated, and he chose to plead guilty in light of that knowledge.

Appellant’s third contention is that since no statutory authorization exists for an evidentiary hearing on consent, the court erred in holding one. The Commonwealth argues that the hearing requirement is implicit in the Sentencing Guidelines: we agree.

The sentencing court has wide discretion in fashioning its sentence, as long as it follows the Sentencing Guidelines and stays within the statutory maximum. Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982). It may hear evidence that might not be admitted at trial. Commonwealth v. Knepp, supra. Pa.R.Crim.P. 1405(a), 42 Pa.C.S., provides for arguments at the time of sentencing. Given these considerations, we do not believe the lack of explicit statutory authorization means the proceeding should not have occurred.

Appellant next argues that he had no notice of the charges, since he thought he was to be convicted of Sec. 3123(5) in pleading guilty, but was actually convicted of 3123(1). A study of the record, as indicated above, shows no merit to this contention. At the guilty plea colloquy, appellant indicated he knew that consent was an issue, and he chose to go ahead and enter a guilty plea in the face of that knowledge. Appellant had notice of the charge and possible penalty.

Appellant further contends that he was deprived of his right to cross-examine and present witnesses at the sentencing hearing. A review of the record shows defense counsel acquiesced to a sentencing hearing six weeks after the guilty plea colloquy; the delay was to give counsel time to “prepare more adequately.” At the hearing, appellant’s counsel cross-examined the victim-witness thoroughly; his contention is meritless.

Appellant argues additionally that there was a “fatal variance” between the information filed, charging him with violating Sec. 3123(5), and his conviction, which allegedly was for Sec. 3123(1) or (2). We have already noted that appellant was convicted for non-consensual IDSI(5); since this is the crime with which he was charged, there is no variance.

Next, appellant argues that because no standard of proof is specified for fact-finding at a sentencing hearing, the procedure does not meet due process standards. The Commonwealth argues that the evidence showed, beyond a reasonable doubt, that the victim did not consent to the acts. The standard of proof for criminal convictions is whether the evidence shows, “beyond a reasonable doubt,” that the defendant did the things charged. Here, the evidence showed beyond a reasonable doubt that the victim did not engage in the sexual acts voluntarily. Since the evidence met the highest standard of proof possible, appellant was afforded due process. And, since the sentence is supported by reasons stated on the record, we will not vacate the sentence.

Finally, appellant argues that the sentencing court, by using convictions that may have been obtained in violation of appellant’s right to counsel, based its sentence on an illegal factor and that remand is required to investigate the circumstances of the convictions. Appellant would require the Commonwealth to prove that convictions upon which a prior record score of 6 were founded were obtained when appellant had the assistance of counsel. The Commonwealth argues that appellant failed to meet his initial burden of producing evidence that the convictions were invalid. We agree.

The Supreme Court has held that a state may not use prior uncounseled convictions to support guilt or enhance punishment:

To permit a conviction obtained in violation of Gideon v. Wainwright [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799] to be used against a person either to support guilt or enhance punishment for another offense (See Greer v. Beto, 384 U.S. 269, 16 L.Ed.2d 526, 86 S.Ct. 1447) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was the denial of the right to counsel, the accused in effect suffered anew from the deprivation of that Sixth Amendment right.

Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967).

The Pennsylvania Supreme Court, in Commonwealth v. Calvert, 463 Pa. 211, 344 A.2d 797 (1975), quoted from Burgett and held that the prosecution’s failure to establish that the defendant had been represented by counsel at 32 prior proceedings required that the defendant’s sentence be vacated. The prior convictions had been presented to the jury as an aid for them in fixing sentence.

Even though Calvert was handed down before the Sentencing Guidelines were promulgated, we think the standard delineated by the case holds true today. It is violative of the defendant’s due process rights for his sentence to be based, in part, on convictions obtained in violation of his right to counsel.

The question remains as to upon whom the burden rests for the establishment of the validity of the convictions. Here we are guided by the Sentencing Guidelines.

The current Guidelines contain no reference to the burden of production of proof on the issue of prior convictions.

The first draft of the Guidelines, however, contains detailed references:

(g) Burden of Proof
(1) The Burden of Proof shall be on the Commonwealth to determine the number and Offense Rank of previous convictions.
(2) The court shall determine and use the lowest rank which is consistent with the facts, when the Offense Rank of a prior offense is unclear.

Vol. 10 Pa. Bulletin No. 43 at 4183 (Oct. 25, 1980).

These Guidelines were substantially revised to produce the current Guidelines, which say nothing about who shall bring up prior convictions. We only can assume that the Commission, by deleting the noted provisions, had decided that the practice then in effect was the proper practice and should not be changed.

The practice for calculation of a prior record score usually is as follows: The court orders a presentence report, which contains a list of prior arrests and convictions. The court examines the report, and, at the sentencing hearing, listens to arguments by prosecution and defense counsel and entertains their suggestions as to sentence. At that time, counsel make objections to information obtained in the report and the court takes their arguments into consideration. See Pa.R.Crim.P. 1405(a), 42 Pa.C.S.

Another guide to our decision is Commonwealth v. Cowan, 275 Pa.Super. 341, 418 A.2d 753 (1980), where this Court vacated a judgment of sentence and remanded for resentencing when the lower court had relied on information in a presentence report that the defendant had argued was wrong. The Commonwealth had not brought forth any evidence showing that the report, listing a conviction for larceny, was accurate, after the defendant had protested that the information was wrong; the sentencing court had not stated specifically that it had considered the at-issue conviction in sentencing, but had considered the defendant’s record. Id., 275 Pa.Superior Ct. at 342, 418 A.2d at 753.

Drawing from Calvert and Cowan, we hold that the defense has the burden of alleging invalid prior convictions, and that if the allegations appear to have merit, the court ordinarily should inquire into the circumstances surrounding the convictions. If the allegations warrant it, the court should require the production of evidence by the Commonwealth showing the validity of the convictions. If the defendant fails to prove to the satisfaction of the court that the inference of constitutional adjudications is wrong, the court may infer that a presentence report showing convictions is accurate, and proceed on that basis.

Here, it is apparent that the defendant raised the possibility of uncounseled convictions at sentencing, as well as in his Petition to Reconsider Sentence. He made no averment that they were obtained without counsel, however; counsel merely raised the possibility that the convictions were invalid. As nothing in the record appears to have required the court to delve further into the matter, we will not disturb its decision to use the convictions in the computation of the defendant’s Prior Record Score.

Judgment of sentence affirmed.

POPOVICH, J., concurs in the result.

      . The sentence was couched in terms of 78-102 months for each violation. Under the Sentencing Guidelines, 42 Pa.C.S. Sec. 9721, 204 Pa.Code 303.1 et seq. (Purdon’s 1982), the minimum sentence for a crime with an Offense Gravity Score of 9 and a defendant with a Prior Record Score of 6 would be 78-102 months. The minimum range for a crime with an Offense Gravity Score of 5 and a Prior Record Score of 6 would be 24-36 months. The minimum range for a crime with an Offense Gravity Score of 5 and a Prior Record Score of 3 would be 8-12 months. Appellant contends that his Offense Gravity Score should have been a 5 and his Prior Record Score a 3, which would put him in the 8-12 month minimum range. This is substantially different from 78-102 months, appellant’s sentence.

      . In Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), the Supreme Court held that all charges resulting from one criminal “episode” must be consolidated for one trial. This case is inapposite to the issue at bar, since only one prosecution was initiated against appellant. On the facts of this case, appellant cannot seriously insist that, after failing to convict him in one proceeding, the Commonwealth then instituted a second proceeding against him.

      . The elements of statutory rape, 18 Pa.C.S. Sec. 3122 (Purdon’s 1983), are (1) the actor is 18 or over, (2) the actor engages in sexual intercourse with another person, (3) not his spouse, and is (4) less than 14 years old. The elements of IDSI, 18 Pa.C.S. Sec. 3123, are (1) the actor engages in deviate sexual intercourse with another person, (2) by forcible compulsion, or by threat of forcible compulsion, or with an unconscious person, or with a mentally deranged or mentally deficient person, or with a person who is less than 16 years old. It appears that the fifth category of IDSI, deviate sexual intercourse with a person less than 16 years of age, is intended to prohibit any deviate sexual intercourse between an adult and a minor, regardless of consent. In both cases, the legislature has deemed the minor to be incapable of consenting and has deleted the element of lack of consent from the crime.

      . Apparently, defense counsel had believed that the Commonwealth would agree to an Offense Gravity Score of 5, and at the guilty plea colloquy, communicated his belief to the court. The following colloquy then occurred:

        MR. ARENSON (defense counsel): Your Honor, the Defendant has indicated to me that he understands that if this was in the nature of a plea bargain, that leaves him in a position where you can accept the plea bargain, if you choose to believe that my representations are correct, and I have no reason to assume you don’t think so, or reject the plea bargain, in which case he will have two choices. One is to plead guilty without any plea bargain, or to stand trial. He has indicated to me he still wishes to go ahead and plead guilty if you choose to reject the plea bargain.
      THE COURT: Well, I don’t really think it was presented to me in the nature of a plea bargain, I would not wish to be bound by it and would not accept it, but would reject it.
      T.T. at 21-22.

      . Cf. Commonwealth v. Gaus, 300 Pa.Super. 372, 373, 446 A.2d 661 (1982) (vacating for failure to give reasons for sentence).

      . On appeal, appellant contends that his Prior Record Score should have been a 3, rather than the 6 used. He apparently admits to the validity of convictions sufficient to support a Prior Record Score of 3.


author: MONTEMURO, Judge: WICKERSHAM, Judge,

text:
    488 A.2d 1132
    COMMONWEALTH of Pennsylvania v. John W. JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 28, 1983.
    Filed Feb. 21, 1985.

      Margaret T. McKeown Murphy, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

This appeal follows the August 4th, 1982, Order of the Court of Common Pleas of Philadelphia County granting appellant an appeal nunc pro tunc from the Order denying his first PCHA Petition.

Appellant argues in this appeal that he received ineffective assistance of counsel when his trial counsel failed to inform him of his right to appeal his 1964 sentence for robbery and conspiracy and that he is entitled to a new trial on grounds of various constitutional violations which occurred during the course of the trial on those charges. Based on our findings that the Commonwealth failed to meet its burden of proving a knowing and voluntary waiver of direct appeal rights and that a tacit admission was improperly used against appellant at his trial, we reverse and remand for a new trial.

We shall set forth the tortuous and extensive history of this case for two reasons: first, so that our disposition of this appeal will be more easily understood and second, to demonstrate why the citizens of this Commonwealth, with understandable disbelief and consternation, are often times heard to complain of a criminal justice system so overburdened with technicalities that finality of judgment is at best an illusive goal.

Twenty-three (23) years ago on the afternoon of May 25, 1961, Mr. Lucius Hart, an elderly gentleman, sixty-eight (68) years of age was robbed of approximately fifteen thousand ($15,000.00) dollars in cash and checks. He was employed as a messenger for the C.A. Rowell Department Store which was located at the corner of Germantown and Chelten Avenues in the city of Philadelphia and at the time of the robbery he was en route to the Girard Bank to make a deposit. As Mr. Hart was crossing Woodlawn Street, appellant and his co-defendant, John McManus, approached him from the side and after one of them said, "I’ll take this,” he was forcibly relieved of the canvass bag which contained the cash and checks. John McManus subsequently pleaded guilty to the crime. The appellant was arrested on May 25, 1961 and charged with aggravated robbery and criminal conspiracy.

On May 29, 1962, following a trial by jury before the Honorable Harold D. Saylor (now deceased), appellant was convicted of all charges. Post-verdict motions were filed and on May 2, 1963, Judge Saylor granted appellant’s motion for a new trial.

Appellant retained new counsel, David N. Savitt, Esquire, now a Judge of the Court of Common Pleas of Philadelphia County, and was retried on December 4, 1963, before the Honorable Victor Blanc (now deceased) sitting without a jury. He was again convicted. Appellant filed a timely motion for a new trial and arrest of judgment. On January 16, 1964, Judge Blanc sentenced appellant to three (3) years probation on the charge of aggravated robbery and suspended sentence on the charge of conspiracy. No appeal was taken from this judgment of sentence.

On January 16, 1967, a probation violation hearing was held before the Honorable Thomas M. Reed (now deceased), in response to a warrant requested on September 1st, 1966, for technical violations, and Judge Reed revoked appellant’s probation and imposed three (3) more years probation to begin January 16, 1967. Appellant was represented by counsel and no appeal was taken from Judge Reed’s order.

On August 8, 1967, appellant was arrested and charged with the crime of burglary and on January 20, 1969 was convicted of this offense in a non-jury trial before the Honorable Charles J. Margiotti, who imposed a sentence of six (6) to twenty-three (23) months in the Philadelphia County Prison.

On April 25th, 1969, a second probation revocation hearing was held before Judge Reed, who again revoked appellant’s probation. On May 29, 1969, Judge Reed imposed a sentence of eight (8) to twenty (20) years. Appellant was represented by counsel and no appeal was taken from Judge Reed’s sentence of imprisonment. Robert Simone, Esquire, represented appellant.

On November 19, 1969, appellant filed his first petition for relief under the Post Conviction Hearing Act, 42 Pa.C.S. § 9541 et seq. Appellant was represented by Robert Simone, Esquire, who alleged the following as reasons for post-conviction relief:

1. The introduction of evidence obtained pursuant to an unlawful arrest;
2. The introduction into evidence of a statement obtained in the absence of a lawyer at a trial when representation is constitutionally required;
3. The infringement of the privilege against self-incrimination under either federal or state law;
4. The unconstitutional suppression of evidence by the state;
5. Being twice placed in jeopardy;
6. The abridgement of rights guaranteed by the constitution or laws of the United States, including a right that was not recognized as existing at the time of the trial if the constitution requires retrospective application of that right;
7. The denial of his right to appeal through failure of counsel to inform him of this right.

Evidentiary hearings were held on February 26, 1970 and March 25, 1970 before the Honorable Ethan Allen Doty, now a senior Judge of the Court of Common Pleas, at which time the court heard testimony from trial counsel, David N. Savitt, Esquire (now Judge Savitt), and appellant. On June 10, 1970, Judge Doty denied appellant’s request for PCHA relief without a supporting opinion. No direct appeal was filed and a petition for permission to appeal nunc pro tunc was denied by the Superior Court. That Order was affirmed by the Pennsylvania Supreme Court.

Attorney Simone filed a second PCHA petition on April 16, 1971 which alleged that the sentence imposed on May 29, 1969 violated the double jeopardy clause and was, therefore, illegal. The petition was denied without a hearing. The Superior Court affirmed. Commonwealth v. Johnson, 222 Pa.Super. 233, 294 A.2d 778 (1972) (imposition of incarceration following revocation of probation does not violate double jeopardy). Pending this decision, appellant, through Attorney Simone, filed a petition for a writ of habeas corpus in the federal court which was denied on January 11, 1974 for failure to exhaust state remedies. Finally, on July 28, 1977, appellant filed, pro se, a third PCHA petition alleging, inter alia, that first PCHA counsel had rendered ineffective assistance of counsel for failing to preserve appellate rights from the denial of the petition. The Honorable Edward J. Blake denied the petition without a hearing. The Superior Court reversed and remanded. Commonwealth v. Johnson, 298 Pa.Super. 493, 444 A.2d 1291 (1982). Appellant was represented on the appeal by present counsel. On August 5, 1982, the PCHA court granted appellant permission to file an appeal nunc pro tunc from Judge Doty’s June 10, 1970 Order denying his first PCHA petition. In accordance with this Order, appellant filed the instant appeal.

Appellant advances the following arguments in support of his claim that the lower court erroneously denied his first PCHA petition: (1) trial counsel rendered ineffective assistance of counsel through his failure to inform appellant of his right to appeal the 1964 judgment of sentence; (2) he was denied due process by the introduction of tainted identification testimony at trial; (3) the introduction of a tacit admission against him violated his privilege against self-incrimination; (4) introduction of a statement elicited by police at a time when appellant was not represented by counsel violated his privilege against self-incrimination; (5) he was convicted and sentenced before a mentally incompetent judge; (6) his waiver of a jury trial was invalid and, (7) he was punished three times for the same offense in violation of the principles of double jeopardy.

Initially, the Commonwealth contends that appellant has waived any claims for post-conviction relief by reason of his six-year delay in filing this, his first PCHA petition. This court has stated that a “lapse of time in filing a PCHA petition is a factor in assessing its merits.” Commonwealth v. Courts, 315 Pa.Super. 108, 124, 461 A.2d 820, 827 (1983); Commonwealth v. Strickland, 306 Pa.Super. 516, 526, 452 A.2d 844, 849 (1982). However, the petition filed by appellant contains an allegation that trial counsel failed to inform appellant of his right to file a direct appeal from the judgment of sentence. In Commonwealth v. Hairston, 323 Pa.Super. 449, 470 A.2d 1004 (1984), the trial court denied appellant a hearing on a PCHA petition based, inter alia, on a four and one-half year delay in filing the petition. This court found that a dismissal based on delay was error when the PCHA petition alleged the deprivation of appellate rights:

[W]e note that appellant implicitly has explained the delay in filing his petition and his reasons for not filing a direct appeal; that he was not informed of the time period in which to do so. Therefore, appellant’s PCHA petition cannot be dismissed as untimely, as he has alleged the deprivation of his appellate rights____ There is also no waiver under the provisions of the PCHA where the petitioner proves the existence of ‘extraordinary circumstances’ justifying his failure to raise the issue on direct appeal. 19 P.S. 1180-4(b)(2). A denial of appellate rights is such an extraordinary circumstance.

Id., 323 Pa.Superior Ct. at 452, 470 A.2d at 1006. See also, Commonwealth v. Jackson, 329 Pa.Super. 293, 478 A.2d 474 (1984). Thus, in view of appellant’s allegation that he was deprived of his appellate rights, we must reject the Commonwealth’s theory that collateral relief has been waived by virtue of delay.

Review of the merits of appellant’s claims, however, has been made more difficult by the passage of more than fourteen years since the original order denying the PCHA petition was signed by Judge Doty. In his opinion written following the filing of this appeal, Judge Doty stated that he “has long since destroyed his notes in this case” and that he “has absolutely no recollection of this case,” thereby rendering him “unable to prepare an opinion which would properly evaluate testimony at the first PCHA hearing.” Lower Court Opinion at 2. To complicate this state of affairs, in his original order denying post-conviction relief, Judge Doty did not file any type of statement of record setting forth his findings of fact and conclusions of law on which he based his decision. As a result, we are unable to determine the grounds on which the petition was denied. Nevertheless, in view of the extensive evidentiary hearing which was held on the petition, we will conduct an independent review of the record to determine whether appellant was afforded effective assistance of counsel. Commonwealth v. McKnight, 311 Pa.Super. 460, 457 A.2d 1272 (1983).

Appellant alleges that trial counsel was ineffective for failing to inform him of his right to appeal his 1964 sentence for robbery and conspiracy. “[A]n accused has an absolute right to appeal, Pa. Constitution, Article V, § 9, and counsel can be faulted for allowing that right to be waived unless the accused himself effectively waives the right, i.e., for not protecting the accused’s right in the absence of an effective waiver.” Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980). In the case presently before us, the record of appellant’s 1963-64 trial before Judge Blanc does not include a transcript of the sentencing proceeding. The record is, thus, silent on the question of whether appellant was informed of his right to file a direct appeal. Under these circumstances, the burden of the PCHA hearing fell on the Commonwealth to prove by a preponderance of the evidence that appellant knowingly and voluntarily waived his right to appeal. Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). See also, Commonwealth v. Ritchie, 298 Pa.Super. 165, 444 A.2d 712 (1982).

At the evidentiary hearing on March 25, 1970, the Commonwealth offered the testimony of trial counsel, David N. Savitt, Esquire. Mr. Savitt testified that he filed post-trial motions on behalf of appellant and represented appellant at the time of sentencing. In response to questions regarding discussions about a possible appeal, trial counsel testified that according to his recollection, appellant did not express any desire to appeal the conviction (N.T. March 25, 1970 at 7) and that he felt certain that he had held discussions with appellant regarding the question of appeal (N.T. March 25, 1970 at 8). However, on cross-examination, trial counsel’s testimony indicated that the failure to appeal was more the result of counsel’s satisfaction with the probationary sentence than of appellant’s informed decision to forego an appeal:

Q. Mr. Savitt, you said you were satisfied because the defendant got three years probation?
A. That’s right.
Q. You indicated that the defendant indicated that he was satisfied?
A. To the best of my recollection, I think, and his family and everyone there was quite pleased, at that time, with the result.
Q. As a matter of fact, you were so satisfied that you didn’t even take the time to tell the defendant, Mr. Johnson, ‘You have a right to appeal, not only the verdict, but the sentence of three years probation to the Superior Court.?’
A. I don’t recollect having discussed with him, at that time, any question of his right to appeal.
I was satisfied with the sentence, and I don’t believe that we considered any possibility of appeal.
Q. As far as you can recall, you can’t, it’s a fact you can’t recall after he was found guilty and sentence was pronounced, there is no recollection in your mind that you advised Mr. Johnson that he had forty-five days to appeal his decision to the Superior Court of Pennsylvania? A. I felt certain that I did not so advise him, under the circumstances.
Q. You did not?
A. No.

(N.T. March 25, 1970 at 10-11).

Furthermore, appellant testified at the PCHA hearing that he had been unhappy with the guilty verdict, that his counsel knew he was unhappy, and that he was not told that he could attack the verdict by filing an appeal. (N.T. February 26, 1970 at 53-54). In view of this and counsel’s inconsistent and, therefore, unpersuasive testimony, we are forced to conclude that the Commonwealth failed to meet its burden of proving by the preponderance of the evidence that appellant knowingly and voluntarily waived his appeal rights. At the very most, the Commonwealth showed that the decision not to appeal was based on counsel’s assessment that it was in appellant’s best interest to accept the lenient probationary sentence without further attack on the verdict. “[CJounsel can be faulted for allowing [the right to appeal] to be waived unless the accused himself effectively waived that right.” Commonwealth v. McKnight, supra, 311 Pa.Superior Ct. at 465, 457 A.2d at 1275 (emphasis added).

In Commonwealth v. McCandless, 301 Pa.Super. 128, 447 A.2d 275 (1982), appellant alleged via a PCHA petition that counsel was ineffective for failing to prosecute an appeal from judgment of sentence. At the evidentiary hearing held on the petition, counsel testified that he filed a timely appeal but after discussion with appellant’s parents, he decided to withdraw the appeal with the hope of a favorable parole decision. The hearing court found that counsel was not ineffective for discontinuing the appeal because his strategy had a reasonable basis designed to effectuate appellant’s interests. This court found that such a ruling was erroneous absent a finding that appellant had agreed to counsel’s strategic decision to withdraw the appeal. Likewise, in the instant case, while counsel’s decision to accept the lenient sentence without further attack on the conviction may be viewed as a reasonable strategy designed to effectuate appellant’s best interests, without evidence that appellant himself agreed to this decision, we must find that “trial counsel’s testimony, taken in the light most favorable to the Commonwealth, will not support a finding of acquiescence sufficient to constitute a waiver.” Commonwealth v. Peake, 210 Pa.Super. 133, 231 A.2d 908 (1967). See also, Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 218 A.2d 811 (1966); Commonwealth v. Fareri, 271 Pa.Super. 174, 412 A.2d 632 (1979).

Therefore, based on our independent review of the record, we are forced to conclude that trial counsel rendered ineffective assistance for failing to advise appellant of his right to file a direct appeal from judgment of sentence. In Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982), this court held that once a defendant has shown that he was denied his appellate rights, relief must be granted in the form of an appeal nunc pro tunc. Accordingly, we reverse the Order of the lower court and grant appellant an appeal nunc pro tunc from the judgment of sentence imposed on January 16, 1964.

Having so ruled, we are persuaded by the decision in Commonwealth v. McKnight, supra, to consider this present appeal as the appeal nunc pro tunc which we have just granted. In McKnight, the PCHA hearing court found that appellant had knowingly and voluntarily waived his appellate rights and, therefore, denied his PCHA petition. On appeal, this court reversed that finding and granted appellant an appeal nunc pro tunc. The remaining claims raised in the appeal had been presented to the lower court and an evidentiary hearing had been held. Thus claims were fully briefed on appeal. Therefore, rather than relinquishing jurisdiction to allow the appellant to file an appeal nunc pro tunc, the court found that the better course was to resolve the remaining claims in the context of a nunc pro tunc appeal:

The resolution of appellant’s claims in the posture of a nunc pro tunc appeal serves the dual purpose of quickly-remedying the denial of a direct appeal and at the same time promoting the traditional policies of judicial economy and fairness.

Id. 311 Pa.Super. at 466 n. 8, 457 A.2d at 1276 n. 8.

In the present case, the remaining allegations contained in appellant’s PCHA petition raise claims of error committed at trial. All of these issues have been fully briefed by the parties. We will, therefore, address the issues in the context of the appeal nunc pro tunc from judgment of sentence.

Appellant claims, inter alia, that the introduction of a tacit admission against him violated his privilege against self-incrimination. In Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889 (1943), the Pennsylvania Supreme Court defined the tacit admission rule as follows:

The rule of evidence is well established that, when a statement made in the presence and hearing of a person is incriminating in character and naturally calls for a denial but is not challenged or contradicted by the accused although he has opportunity and liberty to speak, the statement and the fact of his failure to deny it are admissible in evidence as an implied admission of the truth of the charges thus made.

Id., 347 Pa. at 421, 32 A.2d at 890. The use of tacit admissions was proscribed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968), appellant had been granted an appeal nunc pro tunc following a finding at a post-conviction proceeding that he had been denied his appellate rights following a 1964 conviction. On the appeal nunc pro tunc, he argued that the introduction of a tacit admission against him was error. The Commonwealth argued that inasmuch as appellant was tried prior to the date of the decision in Miranda, supra, its holding proscribing the use of tacit admissions was inapplicable. In an attempt to buttress this argument, the Commonwealth relied on Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 223 A.2d 296 (1966), which held that Miranda’s proscription of the use of tacit admissions would not be applied retroactively.

The supreme court, however, rejected this argument finding that Shadd held only that a tacit admission could not be collaterally attacked. The nunc pro tunc appeal before the court, however, was a direct appeal from judgment of sentence. Thus, the decision in Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967), that a reversal is required in all cases employing a tacit admission wherein the judgment was not finalized as of the date of Miranda was announced, was found to be applicable under the principle that a judgment is not final until the availability of appeal is exhausted, citing Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Little, supra, 432 Pa. at 259, 248 A.2d at 34. See also, Commonwealth v. Lee, 470 Pa. 401, 368 A.2d 690 (1977). Accordingly, the Little court reversed based on the use of a tacit admission and remanded for a new trial.

17,8] Little controls the instant case. During the course of appellant’s trial, the following testimony was elicited by the prosecutor from Officer Israel Span on the subject of the victim’s identification of appellant in a lineup: N.T. December 4, 1963, at 40. The prosecutor’s ability to use appellant’s silence in this way was important to its case because appellant was not the individual whom the victim initially identified at the lineup; rather, he identified a detective as his assailant and only on a second look identified appellant. Clearly, the tacit admission was used for the purpose of implying that appellant’s failure to deny the identification was an admission.

Q. We’ll go back to the time he was identified in the lineup. After he was identified as one of the persons then, did the defendant make any statement or answer to that accusation?
A. No- ...
Q. My question is, at the time he was identified did defendant make any statement or response?
A. The Defendant Johnson at this time said he didn’t wish to say anything at this time.
Q. That was his answer?
A. That was his answer.

Under the holding of Miranda, supra, Dravecz, supra, and Little, supra, the introduction of appellant’s silence was improper. Accordingly, Little’s holding that on an appeal nunc pro tunc a defendant may raise the question of the use of a tacit admission, controls our disposition of this case. We are not persuaded by the Commonwealth’s argument that the admission was not prejudicial to appellant. As we have already observed, the victim, a man of advanced age with admittedly poor vision who told police that he was not able to see the assailant’s face during the incident, made a misidentification at the first lineup. The use of appellant’s silence as an implied admission was certainly used to bolster the reliability of the subsequent identification of appellant. Nor can we find any other such overwhelming evidence of guilt as to find this error harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

We are, therefore, albeit with great reluctance, compelled to reverse the judgment of sentence and remand for a new trial.

WICKERSHAM, J., files dissenting statement.

WICKERSHAM, Judge,

dissenting:

I would AFFIRM. Appellant has clearly enjoyed “his day in court.”

      . Inasmuch as we find that the use of the tacit admission controls our disposition, we need not address the remainder of appellant’s claims.

      . The underlying facts are fairly set forth in appellee’s brief as follows:
      On May 4, 1961, at approximately 2:20 p.m., the messenger for Rowell Department Store, Lucien Hart, was robbed by two men while he was on his way to a bank to deliver the store’s receipts for the day, totalling $15,000 in cash and checks. Defendant was arrested on May 26, 1961, as a result of his participation in the robbery, and charged with aggravated robbery and criminal conspiracy as of Indictment Nos. 532 and 533, June Session, 1961, of the Court of Common Pleas, Criminal Trial Division, Philadelphia County. On May 29, 1962, after trial before the Honorable Harold D. Saylor and a jury, defendant was convicted of all charges. Post-verdict motions were filed, and on May 2, 1963, Judge Saylor granted defendant’s motion for a new trial. Represented by new counsel, David Savitt, Esquire, now Judge of the Court of Common Pleas of Philadelphia County, defendant was retried on December 4, 1963, before the Honorable Victor Blanc, sitting without a jury, and he was again convicted. On January 16, 1964, a period of probation of three years was imposed on the robbery conviction. Defendant received a violation of probation hearing before the Honorable Thomas M. Reed on January 16, 1967. Judge Reed revoked the original probation and imposed a new period of probation of three years. Another probation violation hearing was held on April 25, 1969, and the second order of probation revoked. On May 26, 1969, pursuant to his order revoking probation, Judge Reed imposed a period of imprisonment of eight to twenty years on the conviction for robbery. No appeal was taken from the original judgment of sentence [nor] from the two subsequent judgments of sentence following the revocation hearings.
      On November 19, 1969, more than eight years after his arrest and almost six years after he was sentenced, defendant filed a counselled petition for relief under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq. An evidentiary hearing was held on February 26 and March 25, 1970, before the Honorable Ethan Allen Doty. Judge Doty denied the petition on June 10, 1970. This Court denied defendant’s application for allowance of appeal nunc pro tunc from the denial of his P.C.H.A. petition in a per curiam order dated July 27, 1970. The Pennsylvania Supreme Court denied defendant’s petition for allowance of appeal on November 18, 1970.
      A second counselled P.C.H.A. petition was filed in the Court of Common Pleas of Philadelphia [County] on April 16, 1971. This petition raised only one claim, alleging that the sentence imposed after the second revocation of probation violated defendant’s right against being placed twice in jeopardy. Judge Reed denied this petition without a hearing on May 6, 1971. This order was appealed to this Court, which affirmed in an opinion authored by Judge Hoffman. Commonwealth v. Johnson, 222 Pa.Super. 233, [294 A.2d 778] (1972). Defendant filed a petition for writ of habeas corpus in the United States District Court on May 16, 1971. Relief was denied in an order issued by the Honorable Clarence C. Newcomer, dated January 11, 1974.
      On January 28, 1977, defendant filed his third P.C.H.A. petition without the aid of counsel. The Honorable Edward J. Blake denied this petition without a hearing on February 9, 1978 finding that all claims raised in the petition had been either finally litigated or waived. Counsel was appointed for purposes of appeal and defendant appealed to this Court requesting a grant of leave to appeal nunc

        pro tunc from Judge Dotys June 10, 1970 order denying defendant’s first petition for post-conviction relief. On April 23, 1982, this Court reversed the lower court’s decision and remanded the case for an evidentary hearing to determine the grounds for defendant's failure to appeal the denial of his first P.C.H.A. petition. Commonwealth v. Johnson, [298] Pa.Super. [493], 444 A.2d 1291 (1982). At a remand hearing on August 4, 1982, the Commonwealth conceded that an appeal should be granted nunc pro tunc from the first P.C.H.A. denial and Judge Blake granted defendant allowance of appeal.. Thus, in this appeal, defendant is limited to those issues he raised in his first P.C.H.A. petition.
      I. DEFENDANT WAIVED ALL OF HIS CLAIMS BY WAITING MORE THAN SIX YEARS TO RAISE THEM.
      Based on his first P.C.H.A. petition, defendant raises five claims on the basis of which he requests the grant of a new trial:
      1) that evidence of a tainted pretrial identification was introduced against him at trial;
      2) that evidence of two 'tacit admissions’ were introduced at trial;
      3) that he was tried by an incompetent judge;
      4) that the waiver of his right to a jury was not knowing and intelligent; and
      5) that he was twice placed in jeopardy for the same offense. Defendant’s first P.C.H.A. petition was the first time he raised any of these claims; he filed no direct appeal at any time after his conviction.
      Defendant’s present claims of trial error are obviously frivolous. More than six years before he filed his first P.C.H.A. petition, defendant was tried and convicted of the charges against him. Almost five years later, after defendant had violated probation for the second time by committing burglary, defendant was sentenced to eight to twenty years imprisonment. Defendant’s only reason for now complaining about the way in which he was tried and sentenced is that, because of his continued misconduct, he had been made to answer for the criminal acts he committed in 1961.
      Brief for Appellee at 1-5 (footnotes omitted).


author: BECK, Judge:

text:
    488 A.2d 1141
    Barbara A. BUTLER, Appellee, v. Elwin M. BUTLER, Appellant.
    Superior Court of Pennsylvania.
    Argued July 19, 1984.
    Filed Feb. 21, 1985.

      Ronald C. Travis, Williamsport, for appellant.
    James T. Rague, III, Mercer, for appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   BECK, Judge:

This appeal from a child support order raises two issues: (1) whether in calculating appellant father’s financial resources for child support, a court may include annuity payments he receives from a tort action award (“tort award”) and (2) whether the instant support award is excessive. We affirm the order of the lower court.

II] Our scope of appellate review in support proceedings is narrow.

[A]bsent a clear abuse of discretion, we will defer to the order of the lower court____ ‘A finding of abuse is not lightly made but only upon a showing of clear and convincing evidence.... ’ ‘[I]f, in reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error.’

Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 38-9, 457 A.2d 98, 101-02 (1983) (citations omitted) (footnotes deleted).

Appellant argues that the entire tort award may not be considered an income source for child support because it represents not only replacement for income but also compensation for pain and suffering. Appellant concedes, however, that the portion of the tort award intended as compensation for lost income is includable as an income source for child support. The unresolved question then is whether that portion of the tort award intended as compensation for pain and suffering is also includable as an income source for child support. We hold that the entire tort award shall be considered as an income source for child support.

Citing Witherow v. Witherow, 288 Pa.Super. 519, 432 A.2d 634 (1980), appellant father argues that a parent’s financial resources for child support should be computed exclusively from the parent’s earnings or replacement for lost earnings. He concedes that in Witherow the court held that a lump-sum workers’ compensation award constituted a financial resource for child support. Appellant, however, maintains that Witherow is distinguishable from the case sub judice on the ground that the workers’ compensation award in Witherow represented replacement for lost earnings and his tort award includes compensation for pain and suffering. We disagree.

We endorse the sound policy of this Commonwealth that in child support cases a court must “look beyond the actual earnings of the parties and consider the value and extent of their ... other financial resources” as well. Dugery v. Dugery, 276 Pa.Super. 51, 54, 419 A.2d 90, 91 (1980). In assessing the full measure of a parent’s financial resources, a court must evaluate, inter alia, a parent’s earning capacity, property interests, stock holdings, real estate rents, alimony pendente lite award, and investments. Cross v. Cross, 310 Pa.Super. 124, 456 A.2d 214 (1983); Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981). In short, all the parent’s assets must be examined regardless of the source; therefore, the entire tort award is properly includable in a determination of appellant’s financial resources for child support.

The award as actually received by appellant is a single fund which appellant may expend in his discretion. The whole tort award is subject to all appellant’s debts. It would, indeed, call into question the sanity of the law if this court were to rule that the tort award is available to pay debts to “the butcher, the baker and the candlestick maker” but not debts to appellant’s child for support.

Alternatively, appellant contends that the tort award should be completely excluded from a calculation of his financial resources because the tort award resulted from an accident which preceded the birth of the parties’ child.

It is undisputed that a “parent’s ability to pay [child support] ... is to be determined as of the time at which support payments are sought____” Costello v. LeNoir, 462 Pa. 36, 40, 337 A.2d 866, 868 (1975). Correspondingly, it is clear that the computation of a parent’s financial resources must include all assets available to the parent at the time support payments are requested. Since the tort award funds were available to appellant at the time of the instant support proceedings, such funds were necessarily part of appellant’s financial resources for child support.

Next, appellant argues that the support award is excessive because in assessing appellee’s financial resources, the lower court considered appellee’s actual earnings instead of appellee’s earning capacity.

At the time of the support hearing appellee received one hundred and three dollars ($103) per week in public assistance monies and was not gainfully employed outside the home. She was responsible for rearing her three minor children, ages 1, 6 and 9. In addition to having custody of the parties’ child, appellee has custody of her two children by a previous marriage.

In Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 380 A.2d 400 (1977), we recognized the important child-care contributions of an unemployed nurturing parent and held that in appropriate circumstances a nurturing parent should not be expected to find employment in order to further the child’s economic welfare at the expense of the child’s emotional welfare.

[A] court cannot ignore the substantial nonmonetary contribution made by a nonworking spouse____ It would surely be ironic if by its support order a court were to dictate that a parent desert a home where very young children were present when the very purpose of the order is to guarantee the welfare of these same children. Such an order would ignore the importance of the nurture and attention of the parent in whose custody the children have been entrusted and would elevate financial well-being over emotional well-being. Conway v. Dana, [456 Pa. 536, 318 A.2d 324 (1974) ] does not require that a court be insensitive to the reality of the nonworking parent’s contribution to the welfare of a child. Our Supreme Court did not intend to create a per se rule that the custodian parent was obligated to work in all cases.
... Of course, a court is not strictly bound by the nurturing parent’s assertion that the best interest of the child is served by the parent’s presence in the home____ But the court must balance several factors before it can expect the nurturing parent to seek employment. Among those factors are the age and maturity of the child; the availability and adequacy of others who might assist the custodian-parent; the adequacy of available financial resources if the custodian-parent does remain in the home. We underscore that, while not dispositive, the custodian-parent’s perception that the welfare of the child is served by having a parent at home is to be accorded significant weight in the court’s calculation of its support order.

Wasiolek, 251 Pa.Super. at 112-14, 380 A.2d at 402-03; see Bender v. Bender, 297 Pa.Super. 461, 444 A.2d 124 (1982).

Applying the Wasiolek analysis to the record before us, we note that appellee is the custodial parent of three young children. There are adequate financial resources available to support the parties’ child without appellee’s providing employment income for child support. Appellee maintains that her children require her presence at home. We, therefore, conclude that the trial court did not err in evaluating appellee’s financial resources by considering appellee’s actual earnings rather than appellee’s earning capacity.

A parent of minor children who works in the home caring for children should be viewed as employed although he or she usually receives no pay check at the end of the week. It would be inequitable to consider the homemaker parent’s earning capacity in the marketplace, and perhaps thereby force the homemaker parent into the marketplace, placing a double burden on the homemaker parent to work both in and outside the home. Work in the home is important and respected labor. It is an essential contribution to the quality of family life. The family, after all, is the keystone of our society. To rule under the circumstances of this case, as appellant would have us, that appellee’s earning capacity in the marketplace is relevant would undermine appellee’s family.

Finally, appellant contends that the lower court rendered an excessive award because in its written opinion, the court “recognize[d] that [appellee] has two children by a prior marriage in her household.”

Appellant’s assertion that the existence of these children is irrelevant in calculating a support order is only partially correct. To the extent that appellee’s other children affect the amount of her resources, if any, available to support appellant’s child, it is relevant. Appellee has a duty to contribute to the support of all her children although appellant only has a duty to support his own child. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974).

Accordingly, the lower court did not err in considering appellee’s responsibility to her two children from another marriage.

For the foregoing reasons, we affirm the order of the lower court.

      . Although primarily compensation for lost earnings and earning power, workers' compensation also provides reimbursement for medical expenses and reasonable attorney’s fees. Children’s Aid & Family Services v. Workmen’s Compensation Appeal Board, 53 Pa.Commw. 379, 417 A.2d 1297 (1980).

      . When a parent's customary employment has been curtailed due to the parent’s having become ill or disabled, the parent’s financial resources must be computed, inter alia, upon the parent’s actual earnings, if any, rather than the parent’s earning capacity as indicated by the parent’s employment history. Roberts v. Bockin, 315 Pa.Super. 52, 461 A.2d 630 (1983); Straub v. Tyahla, 274 Pa.Super. 411, 418 A.2d 472 (1980). Contrary to appellant’s assertion, neither the record nor the lower court’s opinion in the present case establishes that the court's support award was based upon a calculation of appellant's earning capacity. It was based on appellant’s financial resources, i.e. his tort award.

      . Our ruling in this regard is consistent with the Pennsylvania Supreme Court’s assertion in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991, (1984), that “parents do have an obligation to share with their children the benefit of their financial achievement.” Furthermore, ruling otherwise would effectively deprive a child of access to funds produced by investments or sales made before the child’s birth while allowing a parent to utilize such currently available funds to maintain a higher standard of living.

      . We also find that the trial court properly evaluated the extent of the parties’ financial resources and expenses in determining the amount of support to be paid by appellant.