author: CIRILLO, President Judge:

text:
    532 A.2d 26
    COMMONWEALTH of Pennsylvania v. Anthony P. ANDREWS, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Submitted May 26, 1987.
    Filed Oct. 9, 1987.

      Regina B. Guerin, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and ROWLEY and McEWEN, JJ.
   CIRILLO, President Judge:

On November 19, 1986, the Honorable Edward J. Blake, sitting as judge on a post-conviction hearing for appellant, Anthony Andrews, issued an order granting an appeal nunc pro tunc and denying appellant’s petition for relief under the Post Conviction Hearing Act. Andrews now appeals that order. Since appellant’s trial counsel never filed either post-trial motions or an appeal, we concur with Judge Blake’s conclusion that appellant has been denied his appellate rights. We find, however, that the grant of a nunc pro tunc appeal without the grant of a right to file nunc pro tunc post-trial motions is an inadequate remedy in this case. We therefore remand this case for the filing of nunc pro tunc post-trial motions.

The PCHA appeal alleges that trial counsel was ineffective for failing to: (1) preserve defendant’s right to appeal to the superior court; (2) object to hearsay and prejudicial remarks in a “police interrogation”; (3) challenge the probable cause for arrest; (4) call a defense witness that was crucial to appellant’s case; (5) adequately prepare for the suppression hearing; (6) request a Bighurn hearing; (7) object to certain prosecutorial remarks and prejudicial statements; and (8) request a reconsideration of sentence. Because of our disposition of this case, we find that we need not deal with the second through the eighth issues on the merits.

The facts in this case reveal that, on September 8, 1980, two men committed an armed robbery of a restaurant in Philadelphia. The waitress, who had been held at gunpoint, initially identified appellant’s brother at a photo array. Detective McCloskey, following up on the identification, received information that the appellant was one of the participants in the robbery. Appellant was questioned, confessed, and was subsequently arrested.

On March 11, 12, and 13, 1981, appellant was tried before the Honorable Alfred J. DiBona, Jr. A jury found him guilty of criminal conspiracy, simple assault, possessing an instrument of crime generally, and robbery. After dismissing the jury, the judge explained the procedure for preserving appellate rights and advised appellant that he had ten days to file post-trial motions.

The docket lists the filing of post-trial motions on March 19, 1981. The document filed on March 19, 1981, states as follows: “Counsel requests the right to make allegations in support of post verdict relief after reviewing the trial transcript.” At the sentencing hearing, defense counsel stated, “there is nothing I can allege in support of any post verdict relief here ... and I at this point after further review can make no allegations of error which can be arguable.” The court, characterizing this statement as a post trial motion, replied “post trial motions are hereby denied.” The judge then proceeded to sentence appellant. At the conclusion of the sentencing, the appellant stated, “I would like to have my lawyer put in that appeal for me.” Judge DiBona responded, “Mr. Stewart, your client has requested that you file an appeal on his behalf. Accordingly, I would ask that you refer that to your appeals division.” The appeal was never filed.

On June 1, 1982, appellant filed a petition under the Post Conviction Hearing Act claiming ineffective assistance of counsel. After a number of petitions, evidentiary hearings and several changes of attorney, a hearing was held before Judge Edward J. Blake. Judge Blake denied the appellant’s petition for relief under the Post Conviction Hearing Act, but, finding that the appellant was deprived of his appellate rights, granted appellant the right to file an appeal nunc pro tunc.

The case law in this situation is well settled. In Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982), the court outlined three distinct factual patterns where an appellant has been denied appellate rights. In discussing the third pattern, the Miranda court states:

The filing or the absence of filing of post-verdict motions are the crucial factors in determining remedial relief. The importance assigned to post-verdict motions in this setting is indicative of their significance in the overall appellate scheme. Where post-verdict motions have not been filed, as is the situation outlined in the third factual pattern, the PCHA court, upon determining that petitioner has been denied his appellate rights, is to permit the filing and argument of such post verdict motions.

Id., 296 Pa.Superior Ct. at 445, 442 A.2d at 1140. The Miranda court further stated:

All claims, including counts of trial counsel’s ineffectiveness, which would be cognizable on direct appeal should and must be raised in the nunc pro tunc post verdict motions and counsel should be charged with the knowledge that the appellate court will not consider an issue on appeal that has not been adequately preserved below. With the filing of the nunc pro tunc post-verdict motions, the appeal process would then proceed along its normal course.

Id., 296 Pa.Superior Ct. at 445-446, 442 A.2d at 1140. See also Pa.R.Crim.P. 1123(f). Only those issues included in post-verdict motions will be considered preserved for appellate review. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).

Thus, in a situation where a judge, in a hearing under the Post Conviction Hearing Act, has found a deprivation of appellate rights, and no post-trial motions have been filed, the proper remedy is to permit the filing of such motions nunc pro tunc. See, e.g., Commonwealth v. Morris, 486 Pa. 391, 406 A.2d 337 (1979) (where defendant has been granted leave to file a direct appeal nunc pro tunc, the proper practice is for the PCHA court to “remand the case to the trial court to allow the petitioner to file post trial motions”); Commonwealth v. Clark, 296 Pa.Super. 315, 442 A.2d 786 (1982) (where there is a deprivation of appellate rights in a guilty plea situation, the proper remedy is to permit filing of nunc pro tunc motion challenging validity of guilty plea); Commonwealth v. Stackpole, 275 Pa.Super. 255, 418 A.2d 709 (1980) (where appellant was granted a nunc pro tunc appeal, but not the right to file post-verdict motions, and filed within the thirty day period, the Superior Court remanded for disposition of post-verdict motions); cf. Commonwealth v. Jones, 300 Pa.Super. 338, 446 A.2d 644 (1982) (allowing defendant opportunity to file nunc pro tunc post-trial motions after determining that defendant was denied rights was not necessary where the defendants had filed timely post-verdict motions and the court had disposed of those issues in the opinion denying the motions). Because no post-trial motions have been filed in the instant case, the PCHA court has “precipitously placed this case on the appellate level.” Morris, 486 Pa. at 394, 406 A.2d at 338.

We now find before us an order of the PCHA court granting a nunc pro tunc appeal. The facts reveal that no post-trial motions were ever filed. There is no question of waiver here, as appellant stated on the record that he wished his counsel to file an appeal and Judge DiBona, the trial judge, directed counsel to do so. Accordingly, we remand this case to the trial court to allow a nunc pro tunc filing of post-verdict motions and for further proceedings consistent with Miranda.

Jurisdiction is relinquished.


source: Caselaw Access Project

license: Public Domain

text:
    532 A.2d 28
    COMMONWEALTH of Pennsylvania v. Robert JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 27, 1987.
    Filed Oct. 9, 1987.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

      Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and HOFFMAN and HESTER, JJ.
   CIRILLO, President Judge:

Appellant Robert Jackson takes this appeal from a judgment of sentence imposed by the Philadelphia County Court of Common Pleas following a contempt hearing on two citations of criminal contempt. The first citation was imposed for disruptive conduct during voir dire of the jury preceding appellant’s trial on a charge of robbery. The second citation was imposed for a remark made during the contempt hearing itself. We vacate the judgment of sentence and remand for a rehearing.

Appellant contends that the trial court erred in twice holding him guilty of contempt: first, because the evidence was insufficient to support the conclusion that appellant’s collapse in the courtroom during the jury selection was feigned; and second, because appellant’s remark during the contempt hearing did not constitute misconduct with intent to obstruct the proceedings and did not cause a significant disruption. In addition, appellant claims that the procedures employed by the trial court in establishing contempt violated due process.

On February 20, 1987, appellant appeared before Judge Stanley Kubacki, the trial judge, on a motion to suppress evidence following appellant’s arrest for robbery and other related charges. The motion was denied. The court appointed public defender Edson Bostic to represent appellant. During voir dire appellant informed Judge Kubacki that he wished to dismiss trial counsel and to hire a private attorney. The judge denied the request. Appellant then began to comment aloud, objecting to the fact that the trial judge ordered the trial to begin despite the fact that two defense witnesses were not present. He also stated that he wanted to address the jury. During a court recess, and after some discussion, appellant agreed to keep quiet.

Following another court recess, near the completion of jury selection, Judge Kubacki asked, “Does anybody feel he couldn’t give this defendant or the Commonwealth a fair trial?” Appellant answered, “Me, your Honor.” The judge responded, “I want you to keep quiet.”

During the next recess trial counsel informed the court that appellant had been on “acid” in the past and that he was having a “flashback” and wanted to be excused or examined by a doctor. The court denied the request. After the twenty veniremen had been selected and were seated in the jury box, appellant suddenly fell out of his chair head first and lay on his back, apparently unconscious. The jury was excused. The court crier took appellant’s pulse and found it to be normal. The trial judge stated that appellant was “faking” and refused to order the rescue squad. However, the rescue squad did arrive and, after finding that appellant’s vital signs were “good,” refused to conclude that appellant had had a “fit,” but suggested that a medical doctor must make such a determination. One attendant did comment, in answer to the judge’s inquiry, that appellant “was probably faking.”

Trial counsel motioned for a new trial and requested a new jury. The trial judge responded, “We are going to get a new jury, yes, probably tomorrow. So keep yourself available.” Sheriffs McGuire and Levini accompanied appellant to the hospital. It appears from appellant’s brief that the medical report prepared by the physician who examined appellant at the hospital, indicated that appellant had suffered a “syncopal episode secondary to possible seizure disorder,” that appellant had previously taken seizure medication, and that at the time he was taken to the hospital by the sheriffs, he was given a drug known as dilantin. At the time appellant was discharged from the hospital, the treating physician prescribed continuing daily doses of this drug.

The following day, February 26,1987, when appellant and trial counsel appeared in court, certain papers were being marked as Commonwealth’s exhibit C-l. These documents comprised the treating physician’s report which the sheriffs had transported from the hospital to the courtroom. Trial counsel remarked, “Can I ask the purpose of marking these documents? I don’t know what proceeding we are having at this point.” The following discussion took place:

THE COURT: We have learned that the stories that he told us yesterday were not true. The stories that he told the people, the doctors at Giuffre [hospital] were not true and there are many conflicts. This Court is of the firm belief that all this was contrived. It was an act yesterday. He had tried everything to delay the start of this trial. And in desperation, he did what he did in order to delay the administration of justice. And his act was a contemptuous one yesterday.
THE DEFENDANT: That is not true, Your Honor.
THE COURT: I am holding him in contempt.
MR. BOSTIC: May I? I think I have specific objections to the medical records at this point in time. First of all, we would object to any documents being submitted here without the custodian of records, without the person who prepared these documents____
without the custodian of records these matters are not properly before the Court and should be excluded from any evidence in any type of hearing whatsoever. The defendant had a constitutional right to—
THE COURT: Okay, please, spare me these constitutional arguments.

The Commonwealth argued that since the medical reports were prepared in the hospital in the presence of the sheriffs, and delivered by the sheriffs to the court, the chain of custody was intact. The trial court agreed and opined that the fact that the two sheriffs were present when the report was being prepared qualified them both as witnesses that the documents were prepared in the normal course of a business activity and also as “custodians of record.” The controversy continued until appellant stated:

THE DEFENDANT: Now you are fucking with my head. There is not one testimony that they gave when they fooled with my head. You are saying contempt, Your Honor, but not one little thing got my head at all.
THE COURT: You are in contempt.
THE DEFENDANT: They gave me no G.J.K. or E.G.G. was taken of my head. He says, sure, that is on him.
THE COURT: Come on up here a moment, please. I have an obligation to act on a contempt citation immediately.
MR. BOSTIC: I am entitled to speak to find out what we are doing here at this point. Is the Court saying that Mr. Jackson is in contempt this morning for his actions in the courtroom this morning?
THE COURT: Yes.
MR. BOSTIC: Or is the Court saying that Mr. Jackson is in contempt for what occurred—
THE COURT: I told him to keep quiet.
MR. BOSTIC: —as to yesterday based on these records?
THE COURT: Both.
MR. BOSTIC: Clearly, as to the medical records, Mr. Jackson has not had a fair hearing as to any contempt proceedings. These documents are not anything but hearsay____ If I as a member of the Bar Association of Philadelphia, go to prison—
THE COURT: Please, I have heard the argument. No more. I am going to hold you in contempt.
DEFENDANT: That is how you have been doing this.
THE COURT: No more, I heard your argument.
MR. BOSTIC: I am entitled to make argument to what the Court said.
THE COURT: You have made your argument, you said they are not custodians and I said they are.
MR. BOSTIC: The Commonwealth’s attorney made a statement because they were present and they are. I am telling the Court if I was present, that did not by being present make me a custodian of records and the Court is aware of that.
THE COURT: For yesterday, I am sentencing you to six months in jail for contempt. To be followed by an additional six months for your conduct here this morning.
MR. BOSTIC: Your Honor, the defense has not had an opportunity to put on any testimony at this hearing. The Commonwealth has presented the evidence and we have not had an opportunity to present any testimony on behalf of Mr. Jackson. The Court is denying Mr. Jackson at this point of his due process rights this morning.
THE COURT: I am ruling, no more.
MR. BOSTIC: I am entitled to call witnesses.
THE COURT: No more. I am holding you in contempt and you will be committed to the House of Correction for thirty days, beginning the 15th of May.
THE DEFENDANT: Everybody here is in contempt.
THE COURT: Unless you cleanse yourself by paying a fine of $100 and it must be paid.
THE DEFENDANT: Everybody is in contempt, right?
MR. BOSTIC: If I may ask the Court that I have counsel and have a hearing on the order of contempt by this Court. I think I am entitled to that.

After a short recess, the trial judge withdrew the contempt citation against trial counsel and set a date for a new trial. This appeal followed. '

We have held that “in considering an appeal from a contempt order, we place great reliance on the discretion of the trial judge.” Commonwealth v. Worthy, 354 Pa.Super. 454, 456, 512 A.2d 39, 40 (1986) (citing In re Grand Jury, April Term 1977, Wayne County, 251 Pa.Super. 43, 379 A.2d 323 (1977)). “Each court is the exclusive judge of contempts against its process, and on appeal its actions will be reversed only when a plain abuse of discretion occurs.” Neshaminy Water Resources Auth. v. Del-Aware Untd. Inc., 332 Pa.Super. 461, 469, 481 A.2d 879, 883 (1984). In cases of direct criminal contempt, that is, where the contumacious act is committed in the presence of the court and disrupts the administration of justice, Commonwealth v. Mayberry, 459 Pa. 91, 105, 327 A.2d 86, 93 (1974), an appellate court is confined to an examination of the record to determine if the facts support the trial court’s decision. 42 Pa.C.S. § 4132(3); Appeal of Levine, 372 Pa. 612, 620, 95 A.2d 222, 226 (1953), cert. denied, Re Levine, 346 U.S. 858, 74 S.Ct. 72, 98 L.Ed. 971 (1952). However, the trial court’s discretion is not unbridled. It is axiomatic that in direct criminal contempt cases, “to be sufficient to support appellant’s conviction, the evidence had to show, beyond a reasonable doubt, (citation omitted) appellant’s misconduct in the presence of the court; his intent to obstruct the administration of justice; and actual obstruction.” Commonwealth v. Falkenhan, 306 Pa.Super. 330, 338-339, 452 A.2d 750, 755 (1982), cert denied and appeal dismissed, Falkenhan v. Pennsylvania, 464 U.S. 803, 104 S.Ct. 49, 78 L.Ed.2d 69 (1983) (citations omitted).

In addition, constitutional due process requires that the contemnor “should have reasonable notice of the specific charges and opportunity to be heard in his own behalf.” Mayberry, supra 459 Pa. at 105, 327 A.2d at 93 (quoting Taylor v. Hayes, 418 U.S. 488, 499, 94 S.Ct. 2697, 2703, 41 L.Ed.2d 897 (1974)).

It is clear from the record that the trial judge could not be certain that appellant’s fall during voir dire constituted contumacious behavior, however provoking appellant’s behavior had been up to that moment. There was, therefore, no clear case to be made for a charge of direct criminal contempt at that point given the fact that the trial judge based his subsequent citation of contempt solely on the act in issue. It also appears from the record that appellant had no prior notice that a contempt hearing was going to be held the next morning. Appellant, therefore, had no opportunity to prepare a defense to explain his action on the previous day.

Although it is unclear from the record, it appears that the Commonwealth secured the report of the treating physician from the sheriffs who transported it from the hospital after appellant was dismissed. No copy had been made for appellant at the time he arrived at court. Appellant was permitted to look at the original report and a copy was included in the record. However, the handwriting is virtually illegible and it is difficult to understand how trial counsel could have interpreted its significance on a moment’s notice and without consultation with a medical expert. It is apparent that the trial judge meant to rely on this document as proof that appellant had feigned unconsciousness during jury selection the previous day. However, our review of the record fails to disclose by what means the trial judge interpreted the document as proof that appellant was guilty of contempt.

The Commonwealth insists that the report “did not establish either that the defendant was ill or that he was not.” It argues that the act of falling from the chair was enough to prove contumacious behavior. We cannot agree with this conclusion. We have held that “[t]o sustain a summary adjudication of criminal contempt, the acting court must have before it proof of every element of the offense beyond a reasonable doubt.” Kinter v. Kinter, 348 Pa.Super. 27, 29, 501 A.2d 281, 282 (1985) (citing Matter of Campolongo 495, Pa. 627, 631, 435 A.2d at 581, 583 (1981)). There is no proof before the court that appellant was either conscious or unconscious at the moment he fell. There are no facts before us upon which we can base a judgment that appellant intended to disrupt court procedure. See Smith v. Mason, 328 Pa.Super. 314, 318, 476 A.2d 1347, 1349 (1984) (holding that it must be proved, inter alia, that the alleged contemnor had an intent to obstruct the proceedings in order to establish criminal contempt in the presence of the court).

The trial judge, having read the report of the treating physician, began the hearing by summarizing his conclusions and found appellant in contempt specifically for having feigned unconsciousness during the jury selection process. The trial judge then admitted the report into evidence, over objection, as an exception to the hearsay rule pursuant to the Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108.

“Whether a document should be admitted under the ‘business record’ exception is within the discretionary power of the trial judge provided such is exercised within the bounds of the Uniform Act.” Thomas v. Allegheny & Eastern Coal Co., 309 Pa.Super. 333, 340, 455 A.2d 637, 640 (1982) (citing In Re Estate of Indyk, 488 Pa. 567, 571, 413 A.2d 371, 373 (1979)).

In interpreting the Act, we have held that “a medical opinion contained in a hospital record and offered as expert testimony, as a general rule, is not admissible unless the doctor who prepared the report is available for in-court cross-examination regarding the accuracy, reliability, and veracity of his opinion.” Ganster v. Western Pennsylvania Water Co., 349 Pa.Super. 561, 571, 504 A.2d 186, 191 (1985) (emphasis added). “[C]ross examination is particularly important where it is the only means for testing the reliability of an opinion regarding disputed facts.” Ganster, supra, 349 Pa.Superior Ct. at 571, 504 A.2d at 191. Even were we to accept the trial judge’s conclusion that the sheriffs were “custodians” of the records, under Ganster their testimony was excludable. See generally McCormick, Handbook of the Law of Evidence, 732 (2d ed. 1972). See also Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975) (testimony in the nature of an expert opinion is not admissible as a business record unless the expert rendering the opinion is available for cross-examination); Jones Appeal, 449 Pa. 543, 297 A.2d 117 (1972) (same).

We hold that due process was violated when appellant was not notified that a contempt proceeding was to be held the following day. As a result, appellant had no opportunity to prepare a defense. In addition, the trial court erred when it admitted the physician’s report without permitting appellant to know in advance the precise grounds on which the charge was based and to cross-examine the treating physician who prepared the medical report. Even if we were to find that the document was properly admitted, the trial judge made no findings of fact relative to the hospital diagnosis upon which we could have based our review and, as a result, abused its discretion in imposing a summary conviction. We conclude that the record before us is insufficient to. support a finding of contempt during voir dire.

Since we have found that the contempt proceeding was invalid under the law, we are persuaded that the second citation of contempt cannot stand.

Judgment of sentence vacated. Jurisdiction is relinquished.

      . Trial counsel also objected to the admission of the rescue service report and to a written telephone message taken by the court crier from the hospital. These documents were not admitted into evidence.


author: TAMILIA, Judge: POPOVICH, Judge,

text:
    532 A.2d 33
    COMMONWEALTH of Pennsylvania v. Charles R. KEENEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 3, 1987.
    Filed Oct. 5, 1987.

      Charles R. Keeney, in propria persona.
    C.N. Patterson, Jr., Assistant District Attorney, York, for Com.

      Before BECK, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

Appellant entered a plea of nolo contendere to a charge of criminal attempt to commit homicide in connection with the stabbing of his wife, Sandra Keeney, on June 23, 1985. On March 24, 1986, appellant was sentenced to a term of imprisonment of five (5) to ten (10) years. Appellant failed to file appropriate motions to withdraw or challenge the guilty plea, nor did he file a direct appeal. On November 12, 1986, appellant sought relief by filing a pro se petition under the Post Conviction Hearing Act (“PCHA”), 42. Pa. C.S. § 9541 et seq., therein declaring he was indigent and requesting appointment of counsel. On December 18, 1986, the lower court dismissed appellant’s petition without appointment of counsel and without an evidentiary hearing. This direct pro se appeal followed. We reverse.

Appellant’s sole contention on appeal is that the trial court erred in summarily dismissing his PCHA petition without first appointing counsel to represent him. Pennsylvania Rule of Criminal Procedure 1503(a) provides:

(a) Except as provided in Rule 1504, when an unrepresented petitioner satisfies the court that he is unable to procure counsel, the court shall appoint counsel to represent him. The court, on its own motion, shall appoint counsel to represent a petitioner whenever the interests of justice require it.

Under the rules the only time appointment of counsel is unnecessary in a summary disposition of a PCHA petition appears in Pa.R.Crim.P. 1504 as follows:

Appointment of counsel shall not be necessary and petitions may be disposed of summarily when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented by counsel in proceedings therein.

See Commonwealth v. Hobson, 286 Pa.Super. 271, 428 A.2d 987 (1981). Here, we are presented with appellant’s first PCHA petition; therefore, the exception set forth in Pa.R. Crim.P. 1504 does not apply.

In Pennsylvania an indigent petitioner has the right to the assistance of counsel with his first PCHA petition. Commonwealth v. Harris, 492 Pa. 381, 424 A.2d 1242 (1981); Commonwealth v. McClinton, 488 Pa. 598, 413 A.2d 386 (1980); Commonwealth v. Morgan, 357 Pa.Super. 157, 515 A.2d 609 (1986). As we stated in Commonwealth v. Sawyer, 355 Pa.Super. 115, 121, 512 A.2d 1238, 1241 (1986), “[t]he proper procedure is for the trial judge to make a determination as to the indigency of the petitioner, and, if petitioner is found to be indigent, the trial judge should appoint counsel to assist in the preparation of an amended petition under the Act.” Where the appellant did allege indigency and requested appointment of counsel a PCHA court must determine whether appellant is indigent, and, if so, appoint counsel to assist in the presentation of the first petition. Commonwealth v. Lee, 494 Pa. 216, 431 A.2d 226 (1981); Morgan, supra. Waiver of the right to counsel by a petitioner for post-conviction relief must be knowing, intelligent and voluntary. Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980).

As appellant’s PCHA petition fulfills the requirements above, it was error on the part of the trial court to proceed without first determining his indigency status and acting accordingly. The Commonwealth’s assertions that appellant’s claims are “wholly frivolous” and warrant summary dismissal for that reason are without merit (Appellee’s brief at 7). In a similar case, our Supreme Court noted in Commonwealth v. Holland, 496 Pa. 514, 437 A.2d 1159 (1981), appointment of counsel sharpens the presentation of issues and promotes the administration of justice.

We feel compelled to comment on the recent decision of Pennsylvania v. Finley, — U.S. —, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), wherein the United States Supreme Court reversed a PCHA decision by our Court, holding there is no underlying constitutional right to appointed counsel in either discretionary appeals or in state post-conviction proceedings. In Finley, we concluded the court-appointed trial counsel had violated the PCHA petitioner’s constitutional rights by failing to follow the procedures derived from Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), after counsel determined there was no basis for a post-conviction appeal. In reversing, the United States Supreme Court found we had acted improperly in relying on the United States Constitution in extending the Anders procedures to post-conviction proceedings. Explaining, the court stated:

We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks to their conviction ... and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. Thus, we have rejected suggestions that we establish a right to counsel on discretionary appeals____ We find that since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process----
... Post conviction relief is even further removed from the criminal trial than is discretionary direct review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature____ It is a collateral attack that normally occurs only after the defendant has failed to secure relief through a direct review of his conviction. States have no obligation to provide this avenue of relief ... and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well.
... Since [the PCHA petitioner] has no underlying constitutional right to appointed counsel in state postconviction proceedings, she has no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right. (Citations omitted.)

Finley, supra at —, —, 107 S.Ct. at 1993-1994, 95 L.Ed.2d at 545-547.

The court in Finley found that when States, such as Pennsylvania, provide indigent prisoners the right to assistance of counsel in collateral post-conviction proceedings it does not mean that the panoply of procedural protections guaranteed by the United States Constitution for criminal trials and first appeal as of right are required. The Constitution does not require the States to choose between affording no counsel whatsoever or establishing a right to counsel with full procedural protections. Consequently, the Supreme Court’s Opinion in Finley does not affect the earlier decision of Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981), rendered by the Pennsylvania Supreme Court, in which it held that indigent petitioners have the right to the assistance of counsel with their first PCHA petition.

Accordingly, we vacate the PCHA court’s December 18, 1986 Order and remand the case for a hearing regarding the indigency status of appellant. If appellant is found to be indigent, counsel must be appointed and must have an opportunity to file an amended petition upon request before any summary disposition can be made.

Jurisdiction relinquished.

BECK, J. concurs in the result by TAMILIA, J.

POPOVICH, J. files a concurring statement.

POPOVICH, Judge,

concurring:

I join the Majority in reversing the Post-Conviction Hearing Act court’s summary dismissal of the appellant’s pro se request for PCHA relief and the appointment of counsel.

I would only add that the Pennsylvania v. Finley, — U.S. —, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) case foreclosed a state court from basing the appointment of counsel in collateral proceedings, e.g., under the PCHA, upon the federal Constitution (Amendment VI). This in no way, however, precludes a state’s highest court from promulgating Rules of Criminal Procedure (see Pa. Const. Art. V, Sec. 10(c)) affording an indigent with counsel under prescribed circumstances, as is the case in Pennsylvania. See Pa.R. Crim.P. 1503(a).

      . Commonwealth v. Finley, 330 Pa.Super. 313, 479 A.2d 568 (1984).

      . In Anders, the Supreme Court held that when counsel appointed to represent an indigent defendant on direct appeal finds a case wholly frivolous:
      [H]e should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.

        Anders, supra at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498.

      . 19 P.S. § 1180-1 et seq., repealed; reenacted at 42 Pa.C.S. §§ 9541-9551.


author: WIEAND, Judge:

text:
    532 A.2d 36
    Keith W. SPEARING, Appellant, v. Cynthia G. STARCHER, Appellee.
    Superior Court of Pennsylvania.
    Argued May 14, 1987.
    Filed Oct. 5, 1987.

      Mark J. Homyak, Carnegie, for appellant.
    Louis C. Long, Pittsburgh, for appellee.
    Before WIEAND, KELLY and POPOVICH, JJ.
   WIEAND, Judge:

In this appeal from a judgment entered following a defense verdict in which the jury specifically found that the defendant-driver had not been negligent, the plaintiff-appellant argues that the trial court erred when it (1) refused a requested jury instruction on the “last clear chance” doctrine, and (2) gave incorrect jury instructions on the “assured clear distance ahead” rule.

At or about 4:30 a.m. on December 8, 1982, Keith W. Spearing was driving his Volkswagen automobile in a northwardly direction on Route 119 in Indiana County when he allegedly hit a pothole in the road. He testified that the impact caused him to lose control of his vehicle, as a result of which it swerved across the roadway into the southbound lane, where it contacted and slid along a guardrail. The vehicle next struck a bridge abutment, which caused it to bounce into the southbound lane of the roadway, where it came to rest. Finding that he could neither restart his' vehicle nor open the door on the driver’s side, Spearing was moving across the front seat to exit on the passenger’s side when his vehicle was struck by a vehicle operated in a southwardly direction by Cynthia G. Starcher. Spearing sustained severe and permanently disabling injuries.

The jury hearing the action which Spearing filed against Starcher found, in response to a special interrogatory, that Starcher had not been negligent. Post-trial motions were denied, and judgment was entered on the verdict. Spearing appealed.

The “last clear chance” as an offset to contributory negligence is a doctrine which has never been adopted in Pennsylvania. See: Kasanovich v. George, 348 Pa. 199, 202, 34 A.2d 523, 525 (1943). Despite the fact that the “last clear chance” doctrine has never been adopted by the Supreme Court, this Court by dictum has suggested that the doctrine could be applied as an offset against the harshness of the rule which barred recovery if a plaintiff were guilty of contributory negligence. Thus, in Lehman v. McCleary, 229 Pa.Super. 508, 329 A.2d 862 (1974), where the issue was the admissibility of evidence to prove the plaintiffs intoxication, this Court said, by way of dictum, the following:

And even if his own intoxication caused him to be in the roadway, this will not relieve the operators of the motor vehicles from striking him since under the discovered peril doctrine, which holds: that a plaintiff may recover notwithstanding his own negligence if the defendant failed to exercise due care to avoid inflicting the injury after he knew or should have known that the plaintiff was in a position of peril. Curt v. Ziman, 140 Pa.Super. 25, 12 A.2d 802 (1940). “A helpless human being on the highway is entitled to protection from motorists whether he be a hopeless dipsomaniac or a model of sobriety.” Brazel v. Buchanan, 404 Pa. 188, 171 A.2d 151 (1961).

Id., 229 Pa.Superior Ct. at 512, 329 A.2d at 864. See also: Emerick v. Carson, 325 Pa.Super. 308, 316, 472 A.2d 1133, 1137 (1984) (where appellant contended that the failure to instruct the jury on the “discovered peril” doctrine had been reversible error, it was held that there had been no error because, in any event, the doctrine had no application to the facts).

We conclude that, whatever the history of the “last clear chance” doctrine in Pennsylvania, it can no longer serve a useful purpose in view of the legislative enactment of the Comparative Negligence Law of 1978, 42 Pa.C.S. § 7102.

The “last clear chance” doctrine was adopted in other jurisdictions as a way of avoiding the harsh results of the contributory negligence rule. See: Prosser & Keeton on Torts, § 66, at 464 (5th ed. 1984). It was adopted in different forms and by different names and “[was] attended with much confusion.” Id. The trend in those states which adopted the doctrine has now been to abrogate the same as being superfluous upon adoption of a system of comparative negligence. Id. at 468. See: Kaatz v. State, 540 P.2d 1037, 1047 (Alaska 1975); Li v. Yellow Cab Co., 13 Cal.3d 804, 829, 532 P.2d 1226, 1240, 119 Cal.Rptr. 858, 875 (1975); Burns v. Otatti, 513 P.2d 469, 472 (Colo.App.1973); Hoffman v. Jones, 280 So.2d 431, 438 (Fla.1973); Alvis v. Ribar, 85 Ill.2d 1, 27, 52 Ill.Dec. 23, 35, 421 N.E.2d 886, 898 (1981); Cushman v. Perkins, 245 A.2d 846, 847 (Me.1968); Davies v. Butler, 95 Nev. 763, 775, 602 P.2d 605, 613 (1979); Scott v. Rizzo, 96 N.M. 682, 687, 634 P.2d 1234, 1239 (1981); French v. Grigsby, 571 S.W.2d 867, 867 (Tex.1978); Cunningham v. Western Liquid Propane Gas Service, Inc., 39 Wash.App. 185, 187, 693 P.2d 123, 124 (1984); Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584, 588-589 (1981); Danculovich v. Brown, 593 P.2d 187, 195 (Wyo.1979); V. Schwartz, Comparative Negligence § 7.2 (1974). The reasoning was articulated best by the Supreme Court of Maine in Cushman v. Perkins, supra at 848-849, as follows:

In our opinion the appearance and survival of the last clear chance doctrine is best explained by a frequently occurring dissatisfaction in the courts with the result of the operation of the contributory negligence rule. It is apparent that this dissatisfaction has also prevailed in some legislative bodies and recent years have seen several jurisdictions adopt statutes which seek to apportion liability between the parties on the basis of their respective degrees of fault. In some of these jurisdictions it has been recognized that when the triers of the fact are evaluating the degree of a plaintiffs negligence, its continuation or cessation, its nearness or remoteness and its efficiency in causation with that of the defendant, any necessity for the use of the absolute rule of last clear chance has disappeared. We believe any justification for it has also disappeared with the adoption of a doctrine which seeks to measure both parties’ negligence by the same impartial standard.

See also: Li v. Yellow Cab Co., supra; Davies v. Butler, supra; Abalos v. Oil Development Co., 544 S.W.2d 627, 634 (Tex.1976) (Pope, J., concurring).

We agree with the reasoning of the Supreme Court of Maine and adopt it as our own. Therefore, to the extent that the last clear chance or discovered peril doctrine has ever been a part of the law of this Commonwealth, it no longer serves a useful purpose and must be abrogated. The trial court did not err when it denied a requested jury-instruction on the “last clear chance.”

The “assured clear distance ahead” rule is a part of the Vehicle Code in Pennsylvania. It provides, in pertinent part, that “[n]o person shall drive a vehicle ... at a speed greater than will permit the driver to bring his [or her] vehicle to a stop within the assured clear distance ahead....” 75 Pa.C.S. § 3361.

Under the assured clear distance ahead rule, a driver must keep his vehicle under such control that he can always stop within the distance that he can clearly see, a distance that will vary according to the visibility and the attending circumstances. Koelle v. Philadelphia Electric Co., 443 Pa. 35, 277 A.2d 350 (1971); Unangst v. Whitehouse, 235 Pa.Superior Ct. 458, 344 A.2d 695 (1975). At night, the driver must be able to stop within the range of his headlights. Stano v. Rearick, 441 Pa. 72, 271 A.2d 251 (1970). Attending circumstances that the driver must take into account include those that limit his visibility, such as smoke, fog, a hill, or a curve in the road, see, e.g., Farbacher v. Frank, 228 Pa.Superior Ct. 35, 323 A.2d 233 (1974) (crest of hill), as well as those that affect his ability to stop, such as wet, icy, or slippery road surfaces, see, e.g., Brown v. Schriver, 254 Pa.Superior Ct. 468, 386 A.2d 45 (1978) (loose gravel). Exceptions that make the rule inapplicable may exist if the obstacle is so camouflaged or deceptive in appearance that a reasonably prudent driver would not realize it was there in time to stop, ... or if a sudden emergency arises, ... or if the obstacle is an oncoming vehicle and not static or essentially static____ The applicability of the assured clear distance ahead rule is generally a question of fact for the jury, especially if the facts are disputed or dependent upon the credibility of oral testimony. McElhinny v. Iliff, 436 Pa. 506, 260 A.2d 739 (1970).

Fish v. Gosnell, 316 Pa.Super. 565, 580-581, 463 A.2d 1042, 1050 (1983) (citations omitted). See: Metro v. Long Transportation Co., 387 Pa. 354, 359-360, 127 A.2d 716, 719-720 (1956); Notarianni v. Ross, 384 Pa. 63, 64-66, 119 A.2d 792, 793 (1956); Burkleca v. Stephens, 370 Pa. 371, 373, 88 A.2d 57, 59 (1952); Rich v. Petersen Truck Lanes, Inc., 357 Pa. 318, 322-323, 53 A.2d 725, 727-728 (1947); Weibel v. Ferguson, 342 Pa. 113, 118, 19 A.2d 357, 360 (1941); Garber v. Weinberg, 324 Pa. 385, 387-388, 188 A. 187, 188 (1936); Reifel v. Hershey Estates, 222 Pa.Super. 212, 215, 295 A.2d 138, 139 (1972); Dennis v. Munyan, 139 Pa.Super. 310, 312, 11 A.2d 566, 567 (1940); Milliken v. United Laundries, 105 Pa.Super. 286, 288-289, 161 A. 873, 874 (1932).

If a fact finder determines that a driver has failed to operate his or her vehicle at a speed and with such control that the vehicle can be stopped within the assured clear distance ahead, that driver must be found negligent as a matter of law. See: Rich v. Petersen Truck Lines, Inc., supra; Garber v. Weinberg, supra; Hollern v. Verhovsek, 220 Pa.Super. 343, 287 A.2d 145 (1971); Milliken v. United Laundries, supra; Drenning v. Williams, 344 F.Supp.1365 (E.D.Pa.1972), aff'd, 480 F.2d 1220 (3d Cir.1973). See also: Learn v. Vivian, 404 Pa. 339, 171 A.2d 783 (1961) (violation of statutory duty of care constitutes negligence per se); Pa. Suggested Standard Civil Jury Instruction 3.30; Restatement (Second) of Torts § 288B(1).

In the instant case, the trial court denied the point for charge submitted by appellant on the assured clear distance ahead rule, but it did instruct the jury generally on the rule. However, the court refused to grant appellant’s request for an instruction to the jury that if the defendant-appellee violated the assured clear distance ahead rule, she was to be found negligent as a matter of law.

“ 'The primary duty of a trial judge in charging a jury is to clarify the issues so that the jury may comprehend the questions they are to decide____ If the charge is wholly inadequate or not clear, or has a tendency to mislead and confuse rather than to clarify the issues, a new trial will be granted____ The functions of a trial judge embrace not only the duty to state to the jury correct principles of law applicable to the pending case and to endeavor to make such principles understandable in plain language, but they also impose upon the judge the duty to assist the jury in applying those principles to the issues presented to them for determination.’ ” McEwan v. Yellow Cab Co., 182 Pa.Super. 219, 224, 126 A.2d 816, 819 (1956), quoting Archer v. Pennsylvania Railroad Co., 166 Pa.Super. 538, 541, 72 A.2d 609, 611 (1950) (citations omitted). In determining whether error has been committed, however, the charge must be read in its entirety. See: Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576, 475 A.2d 1314, 1316 (1984); Wilkerson v. Allied Van Lines, Inc., 360 Pa.Super. 523, 536, 521 A.2d 25, 32 (1987). To constitute reversible error, a jury instruction must be shown not only to have been erroneous but also harmful to the party complaining. Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965); Mickey v. Ayers, 336 Pa.Super. 512, 514-515, 485 A.2d 1199, 1201 (1984). A trial court is not required to accept the precise language of points for charge submitted by counsel so long as the issues are defined accurately and the applicable law is correctly reviewed. See. Geyer v. Steinbronn, 351 Pa.Super. 536, 554, 506 A.2d 901, 911 (1986); Fish v. Gosnell, supra 316 Pa.Super. at 580, 463 A.2d at 1050.

In the instant case, the trial court instructed the jury generally on the assured clear distance ahead rule but refused to instruct that a violation of the rule was negligence. Consequently, the jury was never told that Starcher was to be found negligent as a matter of law if she failed to operate her vehicle at such a speed and having it under such control that she could bring it to a stop within the range of her headlights. The effect of this deficiency in the trial court’s instructions became evident when, during deliberations, the jury returned to the courtroom to inquire whether, “[j]ust because a person hit another car, would that make him or her negligent under the law?” Appellant requested the court to instruct the jury further on the assured clear distance ahead rule. The court refused appellant’s request and gave additional instructions as follows:

No, just because a person hit another car does not make him or her negligent under the law. The term negligence otherwise known as carelessness is the absence of ordinary care that a reasonably prudent person would exercise in the circumstances here presented. Negligent conduct may consist either of an act or an omission to act when there is a duty to do so. In other words, negligence is the failure to do something which a reasonably careful person would do or the doing of something that a reasonably careful person would not do in light of all the surrounding circumstances established by the evidence in this case. It is for you to determine how a reasonably careful person would act in those circumstances.

The jury’s question should have suggested to the trial court that the jury needed to know the law applicable to the situation in which a motorist, at night, collided with a vehicle which had been disabled and was standing motionless on the highway. The trial court’s response did not help the jury to understand the issue to be decided or the assured clear distance rule which was applicable thereto. Instead, the court repeated general negligence principles which had little or no value in clarifying the jury’s expressed confusion and which suggested, without reference to the assured clear distance rule, that it was for the jury to determine how a reasonably careful driver should have acted under the circumstances. The court’s response was inadequate and misleading. Cf. Smith v. Chardak, 291 Pa.Super. 173, 435 A.2d 624 (1981); Reilly v. Poach, 227 Pa.Super. 522, 323 A.2d 50 (1974).

The trial court’s refusal to instruct the jury fully on the assured clear distance rule, coupled with its inadequate and misleading response to the jury’s request for further instructions, may well have contributed to the finding of the jury that the defendant, who ran into a motionless vehicle on the roadway in front of her at night, was not in any way negligent. Therefore, the deficiency in the trial court’s instructions was not harmless and requires that a new trial be granted.

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

      . The point for charge submitted by appellant was as follows:
      "To aid you, in determing [sic] the reasonableness of the care exercised by the Defendant in this case, I refer you to the law governing the conduct of drivers of motor vehicles. An Act of Assembly of this Commonwealth in effect at the time this accident occured [sic] provided in part, "No, person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring [her] vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching____an intersection____[and] when approaching and going around [a] curve.” Members of the jury, the term "assured clear distance", requires that the Defendant operate her vehicle at such a rate of speed and in such a manner that she can always stop it within the distance that she can clearly see; and by this is meant the range of the driver’s vision which, in darkness, is the scope of her headlights. The driver must also consider the conditions of the roadway over which she travels. The Act I have quoted to you dictates the duty of care required of someone in the same situation as the Defendant. If you find that there was a violation of the Act, you must find the Defendant negligent as a matter of law. However, before you answer the question of Defendant’s liability, you must determine whether this negligence was a substantial factor in bringing about Plaintiffs injury. R. 5a-7a.


author: ROWLEY, Judge:

text:
    532 A.2d 439
    In re ESTATE OF Robert I. MONTGOMERY, Deceased. Appeal of Mary Ann MONTGOMERY.
    Superior Court of Pennsylvania.
    Argued March 19, 1987.
    Filed Oct. 5, 1987.

      William J. Templin, Pittsburgh, for appellant.
    Harry M. Montgomery, Jr., Pittsburgh, for appellee.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   ROWLEY, Judge:

This is an appeal from an order of the Allegheny County Court of Common Pleas, Orphans’ Court Division, setting aside a deed from appellee, Emma Price, to decedent. Emma, an elderly widow, deeded her property in Butler County to her nephew, Robert I. Montgomery, who handled all of her financial matters. In the deed she reserved a life estate for herself. The same day that she signed the deed, she also executed her will and a general power of attorney to Mr. Montgomery. The nature of these legal documents was not explained to the appellee. From then until his death in 1985, decedent had complete control over appellee’s fiscal and business affairs. Shortly before decedent’s death, appellee learned, for the first time, that she had conveyed her home to him.

Asserting a confidential relationship and undue influence, Emma sought to have the deed set aside. First, she petitioned the Orphans’ Court Division of the Allgheny County Court of Common Pleas (decedent had resided in Allegheny County) for a citation to be issued to decedent’s widow to show cause why she should not appear before the Register of Wills and qualify as Executrix of decedent’s estate. Decedent’s widow, appellant, then filed decedent’s Will with the Register of Wills and took out letters testamentary on the estate. The only property listed for distribution in the application for letters was the Butler County property that Emma had conveyed to decedent. Emma then formally filed her claim against the estate as well as a “Petition For Return Of Petitioner’s Property Held In Trust By Decedent.”

After a hearing on Emma’s claim and Petition, the Orphans’ Court filed its Opinion and Order setting aside the deed. This direct appeal followed. One issue is raised by appellant: whether the trial court erred in holding that upon a showing of a confidential relationship between grantor and grantee, the deceased grantee’s estate had the burden of proving that the conveyance “was the result of a free, knowledgeable and voluntary act by” the grantor.

Before addressing the merits of this appeal, we are confronted with two procedural matters. First, we must determine whether the order appealed from is a final, appealable order. Second, in view of the fact that neither post-trial motions nor exceptions were filed, we must determine whether the issue raised has been properly preserved for our review. We find that this appeal is properly before us, but that appellant’s failure to file exceptions to the trial court’s order precludes our review on the merits.

This Court is vested with jurisdiction to hear “all appeals from final orders of the courts of common pleas____” 42 Pa.C.S. § 742. A final order is one which “either ends the litigation or disposes of the entire case.” Gray v. State Farm Ins. Co., 328 Pa.Super. 532, 537, 477 A.2d 868, 871 (1984) (citations omitted). Further, “[i]n determining what constitutes a final order we look to a practical rather than technical construction of the order.” Marron’s Woodstove and Fireplace Center, Inc. v. Alaska Co., Inc., 326 Pa.Super. 471, 474, 474 A.2d 337, 338-39 (1984).

Applying these standards to the instant case, we conclude that the order appealed from is in fact final. First, the order resolved the dispute between Emma and appellant by setting aside the deed. Next, the only asset listed in the estate is the disputed Butler County property. This asset was removed from the estate when the deed was set aside. Because there are no other assets in the estate, the practical effect of the order is to end the probate proceeding. Thus, there is nothing left to be adjudicated in the orphans’ court. Finally, the Allegheny County Orphans’ Court rules provide that exceptions to a decree or order shall be filed within ten days after entry and in default thereof the decree shall become final. Rules of the Orphans’ Court of the Court of Common Pleas of Allegheny County 13 § 9 and 14 § 1. No exceptions were filed in the instant case. Therefore, under the trial court’s local rule, the order appealed from became final ten days after its entry. Cf. Estate of McGrorey, 474 Pa. 402, 378 A.2d 855 (1977) (decree of orphans’ court became final pursuant to local rule as of course when no exceptions were filed within ten days after its entry); In re Involuntary Termination of Parental Rights to B.L., 316 Pa.Super. 175, 462 A.2d 851 (1983) (under local rule, all orphans’ court decrees are final). Thus, we conclude that the appeal is properly before us. See In Re Estate of Brown, 446 Pa. 401, 289 A.2d 77 (1972).

Though this appeal is properly before us, we find that we are precluded from addressing the merits since appellant failed to file exceptions. Panko v. Alessi, 362 Pa.Super. 384, 524 A.2d 930 (1987). We note that it is the intent of our Supreme Court to leave regulations concerning the practice and procedure of orphans’ court cases to the local orphans’ court division. Pa.O.C.R. 1.2; Estate of Kotz, 486 Pa. 444, 406 A.2d 524 (1979). Pa.O.C.R. 7.1 states that exceptions shall be filed as prescribed by local rules. As previously mentioned, the Allegheny County Orphans’ Court rules provide ten days after the entry of an order or decree during which exceptions may be filed. Appellant’s failure to file exceptions in accordance with those rules constitutes a waiver of the issue presented on appeal. Estate of McGrorey, 474 Pa. 402, 378 A.2d 855 (1977); Estate of Kotz, 486 Pa. 444, 406 A.2d 524 (1979).

However, we have reviewed the record before us and find that even had appellant properly preserved the issue, she would not have been entitled to relief since her claim lacks merit. Appellant asserts that it is unfair to place the burden on her to prove that the conveyance of the Butler County property was fair, conscientious and beyond suspicion. Not only is there no authority for this conclusion, we find that the unfairness would be far greater if we were to place the burden of proving undue influence on Emma since she would be prevented under the dead man’s rule from testifying. 42 Pa.C.S. § 5933. We therefore dismiss the appeal and affirm the order of the Orphans’ Court.


text:
    532 A.2d 441
    Gerald W. VERNON and Nancy Vernon, his wife v. George STASH and Sharon Stash v. CASTRIOTA CHEVROLET and General Motors Corporation (Two Cases). Appeal of GENERAL MOTORS CORPORATION. Appeal of CASTRIOTA CHEVROLET.
    Superior Court of Pennsylvania.
    Argued May 12, 1987.
    Filed Oct. 5, 1987.

      William A. Pietragallo, Pittsburgh, for General Motors, appellant (at 1145) and appellee (at 1195 and 1226).
    Arthur J. Murphy, Jr., Pittsburgh, for Castriota, appellant (at 1195 and 1226) and appellee (at 1145).
    Paul L. Hammer and Edgar M. Snyder, Pittsburgh, for Vernon, appellees.
    Herman C. Kimpel, Pittsburgh, for Stash, appellees.
    Before WIEAND, KELLY and POPOVICH, JJ.
   WIEAND, Judge:

Gerald Vernon was injured by a driverless 1982 Chevrolet Cavalier which rolled down a hill and careened into a dwelling house where he was a guest. Sharon Stash was the owner of the Chevrolet; her father, George Stash, had parked the car; Castriota Chevrolet (Castriota) had sold the car; and General Motors Corporation (GM) had manufactured the vehicle. In an action by Vernon to recover damages, the jury found that the Chevrolet had been defective and that Castriota and George Stash had been negligent. The jury found further, however, that the only substantial factor in causing the accident had been the defective condition of the vehicle. The jury awarded damages to Vernon in the amount of $178,000.00 and to his wife for loss of consortium in the amount of $6,000.00. The trial court molded the verdicts to add damages for delay and held that Castriota was entitled to indemnification from GM. Both Castriota and GM appealed.

The essential facts are as follows. On September 17, 1981, Sharon Stash purchased a new, 1982 Chevrolet Cavalier from Castriota Chevrolet. Within a week she had returned the vehicle to Castriota’s service department with a complaint that it would “jump” out of gear. Although mechanics employed by Castriota adjusted the car’s linkage, Stash continued to experience difficulties with the automobile’s transmission. On October 13, 1981, Stash again returned the Cavalier to Castriota. To remedy the problem, Castriota this time removed the car’s transmission, replaced the gears and synchronizer, and installed various other parts. Several weeks later, Stash drove the automobile to a local restaurant, parked the car in first gear, applied the hand brake, and went inside. Fifteen minutes later, she learned that the car had drifted out of the parking lot of the restaurant and had rolled into an adjoining street.

On December 30, 1981, Sharon’s father, George Stash, drove the car to work. When he returned home, he parked the car on the hill in front of his residence. The manual gear shift, according to his testimony, had been placed in second gear, and the emergency hand brake had been set. Later that evening, he was informed that the vehicle had rolled down the hill and had crashed into a neighbor’s residence where it injured Gerald Vernon. A police officer who inspected the automobile at the scene of the accident found the gear shift in the neutral position and the parking brake fully set. With the hand brake still engaged, the vehicle was extricated from the house by a tow truck. When the winch of the tow truck was removed, the Stash vehicle again rolled away. It was stopped only after a bystander entered the vehicle and applied the foot brake.

The case was submitted to the jury on special interrogatories. Those interrogatories and the jury’s responses thereto were as follows:

TO THE JURY:

Based upon the preponderance of the evidence, answer the following Interrogatories which have been propounded to you pursuant to the Pennsylvania Rules of Civil Procedure:

SECTION A:

1. Was defendant George Stash negligent in the operation and parking of the involved Chevrolet Cavalier automobile on December 30, 1981?
YES _X_
NO _
2. If so, was his negligence a substantial factor in bringing about the harm to the plaintiffs?
YES_
NO _X_

SECTION B:

1. Was defendant Sharon Stash negligent in the operation and ownership of the involved 1982 Chevrolet Cavalier automobile?
YES_
NO _X_
2. If so, was her negligence a substantial factor in bringing about the harm to the plaintiffs?
YES_
NO _X_

SECTION C:

1. Was Castriota Chevrolet negligent in failing to detect any defect in the design or manufacture of the subject Chevrolet Cavalier automobile?
YES _X_
NO _
2. If so, was such conduct of Castriota Chevrolet a substantial factor in bringing about the harm to the plaintiffs?
YES_
NO X

SECTION D:

1. Was the conduct of Castriota Chevrolet negligent in performance of repairs to the subject Chevrolet Cavalier automobile prior to December 30, 1981?
YES _JX_
NO
2. If so, was such conduct by Castriota Chevrolet a substantial factor in bringing about any harm to the plaintiffs?
YES_
NO X

SECTION E:

1. Was the 1982 Chevrolet Cavalier automobile defective in design or manufacture?
YES J£_
NO _
2. If so, was that defect a substantial factor in bringing about the harm to the plaintiffs?
YES
NO _
If you have answered “YES” to both questions under Section A, or Section B, or Section C, or Section D, or Section E, enter the amount of damages you award to plaintiffs.
GERALD W. VERNON $178,000.00
NANCY VERNON $ 6,000.00

The trial court, based on the jury’s answers to special interrogatories, entered a verdict against GM only. On October 16, 1985, five days after the verdict, Castriota filed a motion to mold the verdict so that it would reflect the liabilities of both dealer and manufacturer and award indemnification to the dealer. On October 18, 1985, GM filed post-trial motions. Castriota did not file post-trial motions. However, it did file a response to GM’s post-trial motions in which it opposed any suggestion by GM that Castriota had been independently negligent in causing the accident.

Vernon also motioned the trial court to mold the verdict against dealer and manufacturer and requested that, in the absence of post-trial motions, judgment be entered thereon against Castriota. This motion was allowed. Subsequently, however, the trial court vacated the judgment and allowed Castriota to file post-trial motions nunc pro tunc. The post-trial motions of Castriota and GM were denied by the trial court on July 7, 1986, and at the same time Castriota’s request for indemnification against GM was granted.

On July 22, 1986, in accordance with an agreement which had been entered pre-trial, judgment was entered in favor of Sharon Stash and against Castriota in the amount of $5,800.00 for property damage sustained by the Stash vehicle in the accident. The next day, the verdict in favor of the Vernons was molded to add delay damages and was amended to impose liability against both GM and Castriota. Following the entry of judgments against both defendants on August 6,1986, GM appéaled. Subsequently, on August 21, 1986, Castriota filed a notice of appeal from the judgment entered on July 22, 1986. An additional appeal was later taken by Castriota from the judgment of August 6, 1986.

GM raises five issues on appeal as follows: (1) was George Stash’s negligence in failing to turn the wheels of the vehicle toward the curb when parking it on a hill a substantial factor as a matter of law; (2) did the trial court err by allowing evidence of other instances of defective performance by the vehicle; (3) did the trial court commit error by allowing a defense expert, Jo E. Davidson, to testify concerning design of the parking brake and transmission; (4) did the trial court erroneously instruct the jury regarding the burden of proving defective manufacture; and (5) did the trial court err by instructing the jury on liability for failure to warn. Castriota adopts without discussion these five arguments advanced by GM. It also argues (1) that it is entitled to indemnification from GM and (2) that if a new trial is granted, there is no need to relitigate the issue of Castriota’s independent negligence.

Castriota’s first appeal was taken from the judgment of July 22, 1986, which was for property damage caused to Sharon Stash’s vehicle. Nowhere in Castriota’s brief to this Court, however, does the dealer contend either directly or by reference that the award of property damage to Sharon Stash was in any way erroneous. This issue, therefore, has been waived. The judgment of July 22, 1986 will be affirmed.

It may also be observed that GM has not contended that it was error for the trial court to require it to indemnify Castriota. That issue, therefore, is not properly before this Court for review.

Section 3701 of the Motor Vehicle Code provides:

(a) General rule.—No person driving or in charge of a motor vehicle shall permit the vehicle to stand unattended without placing the gear shift lever in a position which under the circumstances impedes the movement of the vehicle, stopping the engine, locking the ignition in vehicles so equipped, removing the key from the ignition and, when standing upon any grade, turning the front wheels to the curb or side of the highway and effectively setting the brake.

75 Pa.C.S.A. § 3701(a). GM contended at trial that George Stash had violated this provision of the Vehicle Code when he parked the Cavalier automobile on the hill without turning the wheels of the vehicle toward the curb. By breaching this statutory duty, GM argued, Stash had been negligent per se. The jury which heard the evidence determined that Stash had been negligent in fact, but found that his negligence had not been a substantial factor in causing the accident. In support of its motion for judgment n.o.v. against Stash, GM argued that the jury’s finding of no causation had been erroneous as a matter of law. The trial court disagreed and denied GM’s motion for judgment n.o.v. GM maintains that this was error.

In reviewing a denial of a motion for judgment n.o.v., the evidence and all reasonable inferences therefrom must be considered in the light most favorable to the verdict winner. A judgment n.o.v. should be entered only in clear cases, and all doubt should be resolved in favor of the verdict winner.

Maravich v. Aetna Life & Casualty Co., 350 Pa.Super. 392, 396, 504 A.2d 896, 898 (1986), quoting Kearns v. Clark, 343 Pa.Super. 30, 34-35, 493 A.2d 1358, 1360 (1985).

Violation of a statute, although negligence per se, does not constitute a ground for imposing liability unless it is shown to be a substantial factor'in causing the injury. See: Kaplan v. Philadelphia Transportation Co., 404 Pa. 147, 149-50, 171 A.2d 166, 167 (1961); Crane v. Neal, 389 Pa. 329, 335, 132 A.2d 675, 678-79 (1957), overruled on other grounds, McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972); Skowronski v. Bailey, 330 Pa.Super. 83, 88 n. 3, 478 A.2d 1362, 1365 n. 3 (1984). Whether a party’s conduct has been a substantial factor in causing injury to another is ordinarily a question of fact for the jury, and may be removed from the jury’s consideration only where it is so clear that reasonable minds cannot differ on the issue. See: Hamil v. Bashline, 481 Pa. 256, 266, 392 A.2d 1280, 1284-85 (1978); Ford v. Jeffries, 474 Pa. 588, 595, 379 A.2d 111, 114 (1977). See also: 57 Am.Jur.2d Negligence § 261, at 648.

There is no dispute in the instant case that on the evening of the accident, George Stash failed to park the subject automobile with the wheels turned toward the curb as required by Section 3701 of the Vehicle Code. However, there was evidence that the adjacent curb was not square but sloped, and Stash contended that it was insufficient to prevent a disengaged, brakeless automobile from rolling down the hill. Because of this feature, it appears that reasonable minds could differ regarding whether the manner in which Stash parked the vehicle was a substantial factor in causing the accident. See: DeMaine v. Brillhart, 224 Pa.Super. 241, 303 A.2d 506 (1973). Consequently, a jury could have found, as it apparently did, that the real causes of the run-away vehicle were the defective brakes and transmission.

Evidence of prior accidents or occurrences is generally relevant to show the existence of a defect or dangerous condition or to demonstrate knowledge on the part of the defendant that the hazard existed. See: McCormick on Evidence § 200 (3d ed. 1984). See also: Stormer v. Alberts Construction Co., 401 Pa. 461, 466, 165 A.2d 87, 89 (1960); Yoffee v. Pennsylvania Power and Light Co., 385 Pa. 520, 542, 123 A.2d 636, 648-49 (1956); Whitman v. Riddell, 324 Pa.Super. 177, 180-81, 471 A.2d 521, 523 (1984). For such evidence to be admissible, however, the prior incidents must have taken place under the same or similar circumstances. See: Stormer v. Alberts Construction Co., supra; Whitman v. Riddell, supra.

In the instant case, Sharon Stash was permitted to testify, over objection, that shortly after purchasing the 1982 Cavalier, she noticed that it would “jump” out of fourth gear. After taking the vehicle to Castriota for repairs, she stated, it continued to jump out of fourth gear and would, on occasion, slip out of other gears as well. According to Stash, the problem with the transmission persisted even after the car had been repaired a second time by Castriota. Stash was also allowed to testify concerning a prior incident in which her parked automobile had drifted down a slight grade on a parking lot and had rolled onto an adjoining street. On that occasion, she recalled, she had parked the car in first gear and had applied the hand brake firmly. When she had returned to her car, she had discovered the gear shift in the neutral position. The trial court admitted Stash’s testimony of prior occurrences on the ground that it constituted circumstantial evidence that the car had been defective when it left the manufacturer and was sold by the distributor.

The trial court’s evidentiary ruling was neither erroneous nor an abuse of discretion. It was the contention of the owner and driver of the vehicle at trial that both the transmission and hand brake had been defective when the Chevrolet had been sold. The evidence was relevant, therefore, to show that on prior occasions following its sale, the car had slipped out of gear, and the hand brake, although engaged, had been inadequate to prevent the vehicle from rolling away.

The trial court instructed the jury as follows:

George and Sharon Stash may prove their case of strict liability against General Motors and Castriota Chevrolet by merely showing the occurrence of a malfunction of the automobile during normal use. They need not prove the existence of a specific defect in that automobile.
... The occurrence of a malfunction within a short time after delivery of the automobile permits an inference that the defect existed at the time of the sale.
So again, this is somewhat repetitious. The Plaintiffs are not required to prove any specific defect. The mere fact that the car may have not worked properly is evidence that there was some defect.

N.T. at 870, 871.

Appellants contend that these instructions were erroneous. They contend that the instruction should not have been given, and they complain that the jury was not told that those who sought to prove a defective product had the burden of proving the absence of abnormal uses and of negating reasonable secondary causes.

To make out a cause of action for strict products liability, the plaintiff must prove that the offending product was defective and that the defect in the product was a substantial factor in causing his or her injuries. See: Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 93-94, 337 A.2d 893, 898 (1975); Foley v. Clark Equipment Co., 361 Pa.Super. 599, 605-06, 523 A.2d 379, 382 (1987). In MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1969), we held that a plaintiff need not actually prove a specific defect to prevail; proof of the occurrence of a mechanical malfunction, in the absence of abnormal use or reasonable secondary causes, will ordinarily provide sufficient evidence of defectiveness to sustain a claim under the Restatement (Second) of Torts § 402A. See also: Thompson v. Anthony Crane Rental, Inc., 325 Pa.Super. 386, 394, 473 A.2d 120, 125 (1984); Lenkiewicz v. Lange, 242 Pa.Super. 87, 91, 363 A.2d 1172, 1175 (1976).

The failure of the trial court to instruct the jury regarding the burden of excluding abnormal uses and secondary causes has been waived. To preserve specific portions of a trial court’s jury instructions for appellate review, the complaining party or parties must either submit a specific request or make a timely, specific objection to the charge as given. Broxie v. Household Finance Co., 472 Pa. 373, 377, 372 A.2d 741, 743 (1977). An assignment of error that the trial court failed to give a specific instruction will not be considered unless it affirmatively appears from the record that a request for such an instruction was made, that it was denied by the trial court, and that an appropriate objection was taken to the action of the court. 4A C.J.S. Appeal & Error §§ 715, 1179. Objections not appearing in the record may not be considered on appeal. See: McCaffrey v. Pittsburgh Athletic Association, 448 Pa. 151, 162, 293 A.2d 51, 57 (1972); Society Hill Tower Owners Association v. Matthew, 306 Pa.Super. 13, 18 n. 3, 451 A.2d 1366, 1369 n. 3 (1982).

Instantly, the malfunction of the vehicle as evidence of a defect was raised in written points for charge submitted by the Stashes and Vernons. These requested instructions were accepted by the trial court and were recited almost verbatim to the jury during the charge of the court. Nowhere in the record does it appear that GM objected to the proposed points for charge. The record reveals only that after the conclusion of the court’s instructions, counsel for GM raised a general exception to the adequacy of the malfunction charge, stating “I reiterate my exception to ... the manner in which the Me Dugle [sic] charge was delivered because I don’t think it was whole.” This was inadequate to call to the attention of the trial court the inadequacy which appellant now asserts. See: Se-Ling Hosiery, Inc. v. Margulies, 364 Pa. 45, 70 A.2d 854 (1950); Dupont v. Gallagher, 360 Pa. 419, 62 A.2d 28 (1948). See also: Pa.R.C.P. 302(b); 16 Std.Pa.Prac.2d § 87:32.

Moreover, the trial court’s instruction was not erroneous. It permitted the jury to infer a defective product from a malfunction, not from the occurrence of the accident. This was a correct instruction. Inasmuch as there was no evidence of abnormal use or a secondary cause for the malfunction, if such occurred, the trial court did not err when it failed to instruct the jury that appellee had the burden of proving the absence of such abnormal use or secondary cause.

As with the trial court’s charge on the theory of mechanical malfunction, the record fails to reveal any objection by GM to the court’s instruction regarding the manufacturer’s duty to give adequate warning of dangerous conditions. Failing a proper, specific objection, GM waived the right to challenge this instruction. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Moreover and in any event, the issue of inadequate warnings was not submitted to the jury in special interrogatories; and, therefore, the trial court’s inclusion of an instruction regarding the failure of the manufacturer to warn of a defective product could not have had an effect upon the jury’s verdict. Thus, even if GM’s objection to the charge had been properly preserved, a new trial would not be warranted.

“ ‘It is well-settled that the admission of expert testimony is a matter within the sound discretion of the trial court, whose decision thereon will not be reversed unless the court clearly abused that discretion.’ ” Pascone v. Thomas Jefferson University, 357 Pa.Super. 524, 529, 516 A.2d 384, 386-87 (1986), quoting Pirches v. General Accident Insurance Co., 354 Pa.Super. 303, 307, 511 A.2d 1349, 1351 (1986). It is GM’s contention that the trial court in the present case abused its discretion when it admitted the expert testimony of Jo E. Davidson. Specifically, the manufacturer argues that because Davidson possessed no training in the fields of automotive design, biomechanics, and ergonomics, he was incompetent to render an expert opinion concerning the awkwardness of the hand brake and the false detente of the gear shift. Regardless of Davidson’s competence, GM asserts further, his opinions should not have been admitted because they were based on assumed facts which were not a part of the record. We find no merit in either of these contentions.

We note initially that no objection was made by GM to Davidson’s testimony that the gear shift of Stash’s automobile possessed a “false detente.” Thus, GM may not now challenge the competency of the witness to express that opinion. A specific objection was raised by GM, however, when Davidson was asked on direct examination whether the hand brake was difficult to apply. The trial court denied this objection and permitted Davidson to testify that in his opinion the brake lever had been placed in an awkward position which made it difficult to engage fully.

“An expert witness has been defined as a person who possesses knowledge not within the ordinary reach and who, because of this knowledge is specially qualified to speak upon a particular subject.” Erschen v. Pennsylvania Independent Oil Co., 259 Pa.Super. 474, 477, 393 A.2d 924, 926 (1978). “The Pennsylvania standard of qualification for an expert witness is a liberal one. ‘If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he may testify, and the weight to be given his evidence is for the jury.’ ” Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 598, 437 A.2d 1198, 1201 (1981), quoting Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974).

Instantly, Davidson testified concerning his qualifications as follows: he had obtained a Bachelor of Science degree in industrial vocational education with automobile mechanics as his major; he had participated in a number of field service and other training courses involving various aspects of automotive mechanics, including the Wagner Brake Clinic and a brake colloquium sponsored by the Society of Automotive Engineers; he was a certified master automobile technician and had been employed full time as a journeyman mechanic for eleven and one-half years; and he was then self-employed as a consultant in forensic automobile mechanics, specializing in investigations of automobile accidents involving mechanical failures. Given Davidson’s educational background in automotive mechanics and particularly his experience with braking systems, it was not unreasonable for the trial court to conclude that Davidson possessed at least a reasonable pretension to specialized knowledge regarding the proper adjustment and positioning of hand brake levers. Under the liberal standard for admitting expert testimony in Pennsylvania, we perceive no abuse of discretion in the trial court’s determination that Davidson was qualified to express his opinion on this subject. See: Griffith v. Clearfield Truck Rentals, Inc., 427 Pa. 30, 233 A.2d 896 (1967).

“To endow opinion evidence with probative value it must be based on facts proven or assumed, sufficient to enable the expert to form an intelligent opinion.” Collins v. Hand, 431 Pa. 378, 380, 246 A.2d 398, 404 (1968), quoting Dreher v. Order of United Commercial Travelers of America, 173 Wis. 173, 179, 180 N.W. 815, 817 (1921). See: Murray v. Siegal, 413 Pa. 23, 29, 195 A.2d 790, 793 (1963); Reliance Universal, Inc. of Ohio v. Ernest Renda Contracting Co., 308 Pa.Super. 98, 103, 454 A.2d 39, 42 (1982). The facts assumed by an expert need not be conclusively proven; it is sufficient if the evidence of record tends to establish those assumptions. See: Battistone v. Benedetti, 385 Pa. 163, 169-170, 122 A.2d 536, 539 (1956); Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 239, 433 A.2d 40, 45 (1981).

In the case sub judice, Davidson expressed the opinion that if the automobile’s hand brake had been fully applied on the evening of the accident the car would not have rolled down the hill. GM contends that this was improper because the evidence was that the hand brake had been fully applied. The question asked of the witness was not the usual hypothetical question. That the car rolled down the hill was established beyond contradiction. The expert’s testimony, even if if did contradict the testimony of the driver, was not thereby rendered inadmissible. It suggested only that the driver may have been mistaken or, in the alternative, that the brake had not been fully engaged. This possibility existed even according to the driver’s testimony. He testified that he had pulled the brake as firmly as he could with his right arm but conceded that the brake could have been set more firmly if he had used both hands. Moreover, to the extent that Davidson’s testimony tended to show that the brake had not been fully set, it is difficult to perceive harm thereby to GM. In such event, the testimony tended to show that the driver had been careless in parking the car on a hill.

Davidson was also permitted to testify that if the automobile had been parked in second gear, as George Stash testified, the car would not have rolled down the hill. The fact that it did so, Davidson opined, suggested that even though the car appeared to be in gear when Stash parked it on the hill, it actually had been left in the neutral position. The “false detente” in the transmission, Davidson concluded, constituted a defective condition which contributed to the accident. Contrary to GM’s contention, this testimony was not without evidentiary support. Although it was Stash’s testimony that the transmission had been fully engaged in second gear on the night of the accident, there was uncontradicted evidence that following the misadventure, the vehicle’s gear shift appeared in the neutral position. This evidence was sufficient to support Davidson’s assumption that the car had not, in fact, been in gear at the time it began its calamitous trek down Copsewood Drive.

Judgments affirmed.

      . Castriota also purported to appeal from the July 7, 1986 order denying its post-trial motions. It is clear, however, that orders dismissing post-trial motions following jury trials are interlocutory and non-appealable until entry of final judgment. Murray v. Abcon, Inc,, 291 Pa.Super. 428, 429, 435 A.2d 1301, 1302 (1981).

      . This was an alternate theory advanced by appellees for imposing liability upon the manufacturer.


text:
    532 A.2d 450
    COMMONWEALTH of Pennsylvania v. John R. LaMASSA, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 30, 1986.
    Filed Oct. 15, 1987.

      Robert M. Lipshutz, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND and TAMILIA, JJ.
   WIEAND, Judge:

John LaMassa was tried by jury and was found guilty of kidnapping, false imprisonment, robbery, burglary, criminal conspiracy, simple assault, theft, and possession of an instrument of crime. Post-trial motions were denied, and a sentence of imprisonment was imposed. LaMassa appealed.

Because our review of the record suggested that LaMassa’s original post-trial motions had contained only boilerplate averments that the verdict was unsupported by or contrary to the weight of the evidence, we determined that other issues had not been preserved for appellate review and affirmed the judgment of sentence. See: Commonwealth v. LaMassa, 361 Pa.Super. 635, 517 A.2d 1365 (1986). The Supreme Court 515 Pa. 448, 529 A.2d 466 reversed and remanded for consideration of the merits.

At or about 2:15 a.m. on April 7, 1983, while he was standing on the corner of Torresdale Avenue and Benner Street in Philadelphia and engaged in conversation, James Steitz was approached by John LaMassa and Keith Blake. LaMassa asked Steitz to enter a home on Torresdale Avenue; and when Steitz complied, LaMassa and Blake produced guns and demanded drugs and money. Steitz denied having either. He was then ordered to strip, after which LaMassa removed from his clothes the sum of ten dollars and a set of keys. LaMassa then ordered Steitz to accompany LaMassa and Blake to Steitz’s home. After the three men had departed, Marie Sherwood, the woman with whom Steitz had been engaged in conversation, alerted the police. When the police arrived, Steitz allowed them into his apartment, where they found LaMassa seated on the couch. Another person left via the window and was subsequently apprehended. He was identified as Keith Blake.

On direct appeal from the judgment of sentence, LaMassa asks this Court to determine the following issues:

(1) Did the trial court err in restricting appellant’s cross-examination?
(2) Did the trial court err in denying appellant’s motion for a mistrial and a severance from the trial of the co-defendant?
(3) Did the trial court err in denying appellant’s motion for a mistrial on the ground that the prosecutor said that some evidence was uncontradicted?
(4) Did the trial court err in failing to instruct the jury as to the role of crimen falsi in impeachment of a witness?

There is no merit in the first two arguments made by appellant. The trial court did not abuse its discretion when it refused to allow cross-examination of the victim regarding the irrelevant matters of his prior association with Marie Sherwood and his alleged prior sale of drugs to appellant. Similarly, there was no abuse of discretion when the trial court denied appellant’s motion for severance after it had been made for the first time during the joint trial of appellant and Blake. These matters have been discussed more fully in an opinion prepared by the learned trial judge, and there is little, if anything, that we can add thereto.

LaMassa’s argument that the trial court erred in denying a mistrial after the prosecutor had told the jury that some of the Commonwealth’s evidence was uncontradicted is also lacking in merit. In the first place, appellant has failed to supply us with a transcript of closing arguments made by counsel. See: Commonwealth v. Williams, 357 Pa.Super. 462, 466, 516 A.2d 352, 354 (1986). Moreover and in any event, while it is impropér for a prosecuting attorney to refer to a defendant’s failure to testify, it is not improper for the prosecutor to identify for the jury items of evidence which have been uncontradicted. See: Commonwealth v. Jones, 242 Pa.Super. 471, 476-477, 364 A.2d 368, 370-371 (1976); Commonwealth v. Kloch, 230 Pa.Super. 563, 588-590, 327 A.2d 375, 389-390 (1974).

The trial court instructed the jury regarding various factors which it could consider in determining the credibility of the witnesses. However, the court did not instruct the jury about the use to be made of prior convictions of James Steitz for burglary and theft. At the conclusion of the trial court’s instructions, defense counsel made the following request:

MR. LIPSHUTZ: I have no quarrel with anything you did say. The only thing I’d ask the Court to do is give a specific instruction on the role of the prior convictions used to impeach the credibility of Mr. Steitz. I think I stated the law accurately in my closing argument, but I’m not the law. In other words, I want you to say words essentially in this nature: The attorney for Mr. LaMassa confronted the prosecution witness with the fact he had been convicted of burglary and theft. The evidence of these convictions is brought before you and you may consider it with regard to his credibility. Or words to that effect.
THE COURT: Any objection, Commonwealth?
MR. FOREMAN: Yes, I object. You have already instructed the jury to judge each witnesses’ demeanor, and, as counsel indicated, in the witness’ testimony he admitted these past crimes. That is sufficient. Counsel told them about crimen falsi, I see no justification for further charge.
THE COURT: I don’t recall any cases that would require that I instruct the jury on the convictions for crimen falsi of a witness. I don’t think there are any cases that say I must do that. I think you sufficiently argued to them on several occasions that he had been convicted of burglary and theft.

Appellant contends that it was error for the trial court to refuse to instruct the jury regarding the use it could make of prior crimen falsi convictions of the principal Commonwealth witness. We agree.

As a general rule, “[t]he refusal to give a proper instruction requested by a party is ground for a new trial only if the substance thereof has not otherwise been covered by the trial court’s general charge.” Werner v. Quality Service Oil Co., Inc., 337 Pa.Super. 264, 269, 486 A.2d 1009, 1011 (1984). See: Butler v. DeLuca, 329 Pa.Super. 383, 390, 478 A.2d 840, 844 (1984). In the instant case, the trial court did not in any way instruct the jury regarding the use to be made of evidence that the alleged victim and principal prosecution witness had been previously convicted of burglary and theft.

In Pennsylvania, a witness may be impeached by showing a prior conviction if the crime involved dishonesty or false statement. Commonwealth v. Penn, 497 Pa. 232, 244, 439 A.2d 1154, 1160, cert. denied, Penn v. Pennsylvania, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982); Commonwealth v. Burton, 491 Pa. 13, 19, 417 A.2d 611, 613 (1980); Commonwealth v. Katchmer, 453 Pa. 461, 464, 309 A.2d 591, 593 (1973). Burglary and theft are offenses which are crimen falsi. See: Commonwealth v. Henderson, 497 Pa. 23, 36, 438 A.2d 951, 957 (1981) (prior convictions for theft are crimen falsi); Commonwealth v. Kahley, 467 Pa. 272, 288, 356 A.2d 745, 752 (1976), cert. denied, Kahley v. Pennsylvania, 429 U.S. 1044, 97 S.Ct. 746, 50 L.Ed.2d 757 (1977) (prior convictions for burglary and larceny involve crimes of dishonesty or false statement); Commonwealth v. Gray, 329 Pa.Super. 347, 354, 478 A.2d 822, 825 (1984) (burglary is a crime involving dishonesty or false statement); Commonwealth v. Kaster, 300 Pa.Super. 174, 179, 446 A.2d 286, 289 (1982) (theft by receiving is a crimen falsi); Commonwealth v. Dessus, 262 Pa.Super. 443, 450-451, 396 A.2d 1254, 1257 (1978) (prior convictions for burglary, larceny and receiving stolen goods are crimen falsi). Therefore, the evidence that the Commonwealth’s witness had previously been convicted of burglary and theft was properly received. The evidence having been received, however, the jury should have been instructed regarding its relevancy and the use which could be made of it in determining Steitz’s credibility. Not only did the trial court omit an appropriate instruction, but when a specific request therefor was made by defense counsel, it was refused by the court. This was error.

The Commonwealth suggests that the error did not prejudice appellant and, therefore, was harmless. We are unable to agree. Although it is true that appellant was found in Steitz’s apartment when police arrived, the evidence regarding appellant’s conduct prior thereto, upon which the prosecution depended, came to the jury via the testimony of James Steitz. Because the evidence against appellant consisted primarily, if not exclusively, of Steitz’s testimony, appellant was entitled to have the jury instructed regarding the impeaching effect of Steitz’s prior convictions for criminal offenses which were crimen falsi in nature.

Reversed and remanded for a new trial.

      . Appellant’s initial post-trial motions alleged only that the verdict was "against the law,” "against the evidence,” and “against the weight of the evidence." Although appellant requested leave to "file additional reasons,” the Clerk’s docket and also the Clerk’s file failed to disclose that supplemental post-trial motions had been filed. The Clerk’s file still fails to contain a copy of supplemental post-trial motions, but a note appearing in the file suggests that supplemental post-trial motions, although neither docketed nor processed, were found after this Court’s affirmance of the judgment of sentence.

      . LaMassa and Blake were tried jointly, and Blake was convicted of offenses similar to those of which LaMassa was found guilty.