author: POPOVICH, Judge. WIEAND, Judge,

text:
    639 A.2d 807
    Tammie FOTI and William Foti, as Parents and Natural Guardian of Anna Marie Foti, a Minor and Tammie Foti and William Foti, in their Own Right, v. Alan A. ASKINAS, M.D. and Chester County Obstetrics and Gynecology Assoc., and Joseph L. Abbott, M.D. Appeal of Joseph L. ABBOTT, M.D. and Chester County Obstetrics and Gynecology Assoc.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1993.
    Filed March 24, 1994.

      Peter W. Dicce, Media, for Joseph L. Abbott, appellant.
    Margaret M. Maguire, Norristown, for Chester County Obstetrics and Gynecology Ass’n., appellant.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge.

We are asked to review the appeal of an order entered by the Court of Common Pleas of Chester County, granting appellees’ motion to discontinue without prejudice their medical malpractice action against appellants. We reverse and remand for further proceedings consistent with this opinion.

We adopt the trial court’s statement of the facts of this case:

Anna Marie Foti was born on November 21, 1986 with severe deformities of the right leg. As a result of these deformities she underwent an amputation of that leg approximately one year after her birth. Plaintiffs allege that the deformities resulted from the fact that Anna Marie’s mother took Compazine during the first trimester of her pregnancy. The child’s mother, Tammie Foti, was advised to take the drug for severe gestational nausea. Her attending physicians were Alan A. Askinas, M.D. and Joseph L. Abbott, M.D., who practiced with Chester County Obstetrics and Gynecology Associates.
Plaintiffs ... instituted suit ... against Dr. Askinas and the Corporate Defendant on August 30, 1988. Subsequently, suit was commenced on behalf of Plaintiff/minor and against Joseph Abbott, M.D. and the Corporate Defendant on June 18, 1990. On May 5, 1992, [the trial court] consolidated these matters for trial.

Trial Court Opinion, 10/26/92, at 1-2

The decision to grant a discontinuance without prejudice rests within the discretion of the trial court, and the ruling of the trial court will not be reversed absent an abuse of discretion. Failor v. Westex, Inc., 413 Pa.Super. 343, 605 A.2d 390 (1992). In making its determination whether to grant a discontinuance without prejudice, the trial court must consider all facts and weigh equities. Further, the trial court must consider the benefits or injuries which may result to the respective sides if a discontinuance is granted. A discontinuance that is prejudicial to the rights of others should not be permitted to stand even if it was originally entered with the expressed consent of the court. Brown v. T.W. Phillips Gas & Oil Co., 365 Pa. 155, 74 A.2d 105 (1950).

In the case sub judice, the trial court held the following: The [appellee] minor did not have input into which doctors her mother would consult, whether her mother should or should not have taken prescription drugs during her pregnancy, and what the eventual outcome would be. By definition, she has no control over the current litigation. When Anna Marie Foti attains majority, she may wish to pursue legal action. Since she is the injured party, she should have that opportunity. The intent of the legislature in enacting the Tolling Statute was to protect the minor’s legal interests until that minor is able to make his or her own decisions. I should not deny her the opportunity to pursue those rights when she becomes legally capable of doing so.

Trial Court Opinion, 10/26/92, at 4-5.

A minor is usually compelled to depend on a parent or guardian to initiate legal action on his behalf. Section 5533 of 42 Pa.C.S.A. (hereinafter “The Minority Tolling Statute”) was enacted to protect the rights of minors. Thus, a minor who does not have a parent or guardian to initiate a suit would retain the legal right to bring an action.

[One] ... cannot ... assume that orphanages, foster parents, and juvenile homes have the emotional dedication to fight a prompt legal battle and to maintain the often slow progress through the court system. A foster mother may be honestly dedicated to hot meals and clean linen and emotional support yet quail at the thought of embarking on several years of legal battle for a member of her changeable brood. As to parents themselves, some are lazy or frightened or ignorant or religiously opposed to legal redress. Still, they have their remedy available to them if they choose to use it.

DeSantis v. Yaw, 290 Pa.Super. 535, 434 A.2d 1273 (1981) (emphasis in the original). The Minority Tolling Statute addressed the concerns presented by this court in Yaw, prior to the enactment of the statute. The purpose of the Minority Tolling Statute was to give minors an equal opportunity to bring a cause of action. However, the Minority Tolling Statute was not intended to give infants more' rights than others.

In the present case, the combination of the discontinuance without prejudice and the Minority Tolling Statute provides the appellee-minor with an advantage. A suit was initiated by the appellee-minor’s parents, on behalf of the appellee-minor. However, appellees were unable to present an expert witness to establish that appellants were negligent, and, therefore, appellees filed a motion to discontinue. The trial court’s order to discontinue without prejudice, in essence, allows the appellee-minor to have twelve years to locate expert testimony needed to proceed with her case.

The Minority Tolling Statute was not enacted to give minors such an advantage. According to the trial court’s ruling, a minor’s parents could institute a suit on behalf of a minor, and if it appears that the case will not be successful, the plaintiffs could discontinue the action. The minor would be permitted to file a successive action that might be more successful. Allowing the minor several years to pursue the same claim a second time would grant the minor a valuable advantage.

We must also consider the effect that a discontinuance without prejudice has on appellants. At the time of the discontinuance, this case had been pending for almost five years. We note that this period was protracted by appellee’s resistance to appellants’ discovery efforts. Depositions had been taken, interrogatories exchanged and several motions ruled on by the court. Appellants were prepared to go forward with the case. Much of the effort and expense appellants have already expended will have to be repeated if the appellee-minor chooses to file suit again.

Presently, the trial court’s order granting the discontinuance without prejudice would make November 16, 2006, (the appellee-minor’s 20th birthday) the appellee-minor’s deadline for filing suit against appellants. Therefore, appellants may be compelled to defend themselves a second time at some point during the next twelve years. This would be contrary to the purpose of statutes of limitation. Our Supreme Court explained the value of a definite statute of limitation in Schmucker v. Naugle, 426 Pa. 203, 231 A.2d 121 (1967):

“ ‘Statutes of limitation are vital to the welfare of society and are favored in the law. They are found in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extended to the limit prescribed, is itself a conclusive bar. The bane and the antidote go together[.]’”

Schmucker, supra, 231 A.2d at 123, quoting, United States v. Oregon Lumber Co., 260 U.S. 290, 299-300, 43 S.Ct. 100, 102, 67 L.Ed. 261, 270 (1922). “The purpose of any statute of limitations is to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims.” Insurance Company of North America v. Carnahan, 446 Pa. 48, 51, 284 A.2d 728, 729 (1971) (emphasis added).

We find that a discontinuance without prejudice would provide an advantage to the appellee-minor and would prejudice appellants. Accordingly, we hold that the trial court abused its discretion by granting the appellee-minor’s motion to discontinue without prejudice. If we held otherwise, appellants, who endured the burden of litigating the initial suit for almost five years, may again be subjected to the same litigation. The appellee-minor, however, would benefit immeasurably by the extended period she would have to prepare her case for a second time. See Williams Studio v. Nationwide Mutual Fire Insurance Co., 380 Pa.Super. 1, 550 A.2d 1333 (1988), appeal denied, 527 Pa. 588, 588 A.2d 510 (1990).

We, therefore, remand to allow appellees the opportunity to withdraw their motion. If appellees decide not to withdraw their motion for discontinuance, the trial court shall order the case discontinued with prejudice.

Reversed and remanded for proceedings consistent with this opinion.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring in a statement:

I concur. The only reason appellees seek to discontinue this action is because they cannot make out a prima facie case for recovery. The action charges appellants.with malpractice, and said appellants have a right to have the malpractice claims against them adjudicated. Appellees have no right to discontinue the action without prejudice in the hope that medical science will in the future provide factual support for a cause of action which, they concede, does not now exist. To allow the action to be discontinued without prejudice under these circumstances would be to prejudice defendants unfairly by holding them hostage indefinitely to an unwarranted claim. I would reverse and remand for trial.

      . Section 5533 of 42 Pa.C.S.A. provides in pertinent part:
      (b) Infancy.—If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced. Such person shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this subchapter. As used in this subsection the term ‘minor’ shall mean any individual who has not yet attained the age of 18.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    639 A.2d 810
    COMMONWEALTH of Pennsylvania v. Harvey SHEKERKO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 7, 1994.
    Filed March 28, 1994.

      David K. Fonner, Somerset, for appellant.
    John W. Mcllvaine, Asst. Dist. Atty., Washington, for Com., appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Greene County denying appellant Harvey Shekerko’s petition for post-conviction relief. We affirm.

Harvey Shekerko lived with his four young children in Waynesburg. He dated Linda Caldwell, who had two children of her own. Ms. Cal dwell and her children would frequently spend the night at Shekerko’s residence. On the evening of March 20, 1984, Shekerko and Caldwell went to a local tavern, leaving Shekerko’s oldest child to watch the other children. Shekerko and Caldwell returned late that evening. As a result of an argument, Shekerko did not sleep in the bedroom •with Caldwell that evening.

On March 21, Caldwell’s son, age four, was found at the bottom of the basement steps. Shekerko alleged that he found the child at the bottom of the steps and saw that he was bleeding from his mouth. Fearing that he would be blamed for the child’s injuries, Shekerko stated that he laid the child back down and returned upstairs to bed. Shekerko denied responsibility for the child’s injuries, but admitted that he failed to act at a time when he could have obtained aid for the child.

After Shekerko’s son found the child, Shekerko called an ambulance and the police. The victim was pronounced dead at the scene; his body exhibited multiple external injuries of various ages, including lacerations and burns on his buttocks and back, extensive internal injuries to the blood vessels and lungs, and a lacerated liver.

On March 30, 1984, Shekerko was arrested and charged with criminal homicide. He entered a plea of guilty to a charge of third-degree murder. 18 Pa.C.S. § 2502(c). The court sentenced Shekerko to a term of imprisonment of ten to twenty years. Shekerko filed a motion for reconsideration of sentence, which was denied. Shekerko subsequently filed a post-conviction relief petition, which was denied.

On appeal to this court, Shekerko’s appellate rights were reinstated nunc pro tunc. Attorney Harry Cancelmi was appointed to represent Shekerko. On July 20,1987, this court quashed Shekerko’s appeal, finding his challenge to the discretionary aspects of sentence waived for failure to raise a substantial question that the sentence imposed was inappropriate under the Sentencing Code. See 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Pa.R.A.P. 2119(f).

Two years later, on November 13, 1989, Shekerko filed another petition for post-conviction relief. Attorney Louis Dayich was appointed to represent Shekerko. Shekerko then filed a petition for appointment of new counsel, which was denied. In his petition for post-conviction relief, Shekerko alleged that his plea was not voluntarily and intelligently made since he was not made aware of the permissible range of sentences which the court could impose. Shekerko contended that he was informed that he faced a maximum sentence of ten years.

After a hearing, Shekerko’s petition for post-conviction relief was denied. This appeal followed. New counsel, D. Kent Fonner, was appointed to represent Shekerko.

Shekerko raises the following issues for our review:

1. Did the trial court have proper jurisdiction to sentence Shekerko on a charge of third-degree murder based upon an alleged guilty plea colloquy which was so defective as to be unknowing and involuntary?
2. If Shekerko did enter a knowing and voluntary guilty plea based upon the alleged colloquy, is he entitled to a reduction in sentence consistent with the ten year maximum sentence outlined in the alleged plea colloquy?
3. Is Shekerko entitled to a dismissal of the charges against him due to the sentencing court’s failure to inquire sua sponte whether Shekerko wished to enter a plea or proceed to trial or, in the alternative, withdraw the alleged guilty plea sua sponte when Shekerko declared his innocence in open court prior to sentencing?
4. Was Shekerko’s previous counsel, Louis Dayich, Esq., ineffective in his handling of Shekerko’s PCRA petition so that this case should be remanded to the trial court for a further evidentiary hearing?

Since Shekerko’s claims are related, we will discuss them together. Pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., a petitioner is eligible for collateral relief if he or she pleads and proves by a preponderance of the evidence

(2) [t]hat the conviction or sentence resulted from one or more of the following:
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty.

42 Pa.C.S. § 9543(a)(2). Because Shekerko entered a guilty plea, the truth-determining process is not implicated. Thus, we confine our review to Shekerko’s claim under section 9543(a)(2)(iii), concerning the lawfulness of his guilty plea.

One who pleads guilty consents to a waiver of treasured rights. See Commonwealth v. Flood, 426 Pa.Super. 555, 564, 627 A.2d 1193, 1198 (1993). In order to be valid, a guilty plea must be knowing, intelligent and voluntary. Pa. R.Crim.P. 319; Commonwealth v. Sauter, 389 Pa.Super. 484, 567 A.2d 707 (1989), appeal denied, 525 Pa. 598, 575 A.2d 564 (1990). A guilty plea colloquy must include an inquiry into whether: (1) the defendant understands the nature of the charge to which he is pleading guilty; (2) there is a factual basis for the plea; (3) the defendant understands that he has the right to a jury trial; (4) the defendant understands that he is presumed innocent until found guilty; (5) the defendant is aware of the permissible range of sentences; and (6) the defendant is aware that the court is not bound by the terms of any plea agreement unless it accepts the agreement. See Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977).

The notes of testimony establish that Shekerko was aware that he was charged with criminal homicide, that he was satisfied in his heart and mind that he was responsible for the child’s death, that he was entering a plea for third-degree murder, that he was giving up his right to a jury trial and the presumption of innocence, that the District Attorney was making no recommendation to the sentencing judge as to what the sentence would be, and that a presentence investigation report was ordered. Shekerko was also asked the following questions, to which he answered affirmatively:

Q: And is it also your understanding that Judge Toothman will order a presentence investigation done to go into your background and family life, and character, and any other points that would be important in making a fair and just sentence for you; and at that point he, along with any evidence you want to present, and after hearing all the evidence, would make a determination of what he believed would be a just and legal sentence in this particular case?
Q: There is no question in your mind, and I can assure you that it will not be a probationary sentence or a Greensburg sentence, although I don’t want to speak for the Judge and preclude it; but I think in a situation like this, you should probably expect the worst, just so you understand' what is going to happen?

Shekerko also indicated that there had been no threats or promises made to encourage the entry of a guilty plea.

The point in the colloquy to which Shekerko refers in support of his argument that he was unaware of the permissible range of sentence is the following exchange during the colloquy, initiated by one of his attorneys, Mr. Paul Gettleman:

Q: And after that information was conveyed to you, you had an opportunity to discuss that situation with myself and my wife [Shekerko’s other attorney] relative to the way it would affect your life or up to the next 10 years?

Shekerko contends that based upon this statement, he was of the belief that the maximum term of imprisonment to which he was subject was ten years, not twenty years as set forth in the statute. Our review of the transcript of the guilty plea colloquy reveals no statement with respect to the range of permissible sentences for third-degree murder.

While the Rule 319 checklist is necessary to determine the validity of a guilty plea, a full analysis requires a consideration of the totality of the circumstances surrounding the entry of the plea. See Commonwealth v. Flood, supra; Commonwealth v. Iseley, 419 Pa.Super. 364, 615 A.2d 408 (1992); Commonwealth v. Owens, 321 Pa.Super. 122, 467 A.2d 1159 (1983). We find that based on the totality of the circumstances, the plea was knowingly and voluntarily entered. In particular, we point to the fact that attorney Gettlemen spent approximately twenty-five hours with Shekerko prior to entry of the plea, during which time they discussed the different degrees of murder, involuntary and voluntary manslaughter, the concept of malice, life imprisonment, the death penalty, and aggravating and mitigating circumstances. Further, prior to sentencing, attorney Gettlemen stated the following on the record:

In conclusion, your Honor, I would ask the Court to take a look at the person here, Harvey Shekerko, and in taking all things into consideration, the Court can do justice without necessarily imposing the maximum sentence allowed by law. I think the minimum range is 3 to 20 years. Mr. Shekerko, himself, is very remorseful about what has happened and he even believes punishment is justified, but in this particular situation, we would ask the Court to temper the punishment with some degree of mercy, imposing a sentencing that is fair and just to Greene County and also to Mr. Shekerko.

Sentencing Transcript, March 25, 1985, p. 8.

Additionally, at no time, either before or after sentencing, did Shekerko file a petition to withdraw his guilty plea, nor was this claim raised in his first petition for post-conviction relief or on direct appeal. To avoid these procedural hurdles, Shekerko now raises this claim in the context of counsel’s alleged ineffectiveness. Because “a plea of guilty effectively waives all non-jurisdictional defects and defenses,” Commonwealth v. Gibson 385 Pa.Super. 571, 561 A.2d 1240 (1989), appeal denied, 525 Pa. 642, 581 A.2d 568 (1990), “after sentencing, allegations of ineffectiveness of counsel in this context provide a basis for withdrawal of the plea only where there is a causal nexus between counsel’s ineffectiveness, if any, and an unknowing or involuntary plea.” Flood, 426 Pa.Super. at 567, 627 A.2d at 1199, citing Commonwealth v. Turiano, 411 Pa.Super. 391, 601 A.2d 846, appeal denied, 531 Pa. 654, 613 A.2d 559 (1992) and Commonwealth v. Vance, 376 Pa.Super. 493, 546 A.2d 632 (1988), appeal denied, 521 Pa. 620, 557 A.2d 723 (1989).

Our standard of review when evaluating an ineffectiveness claim is well settled. We must first determine whether the underlying issue is of arguable merit. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). If the claim is without merit, our inquiry ends because counsel will be .not deemed ineffective for failing to raise a meritless claim. Id. If the underlying claim has merit, the appellant must establish that counsel’s course of action had no reasonable basis designed to effectuate the client’s interests and, finally, that the ineffectiveness prejudiced the client’s right to a fair trial. Id.; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

We now inquire into the merits of Shekerko’s claim and whether Shekerko was “misled or misinformed” or acted under “misguided influence when entering the guilty plea.” Flood, 426 Pa.Super. at 568, 627 A.2d at 1199. “[W]here a plea bargain has been entered into by an accused represented by counsel, the surrounding circumstances of the plea may sufficiently indicate that the appellant pleaded knowingly and voluntarily even though he was not apprised on the record of the possible range of sentence.” Commonwealth v. Martin, 258 Pa.Super. 412, 415, 392 A.2d 860, 862 (1978). See also Commonwealth v. Owens, 321 Pa.Super. 122, 467 A.2d 1159 (1983). As this court stated in Martin:

[J]ust as a prosecutor uses a negotiated plea to reduce the unpredictability of trial, so an accused uses a negotiated plea to diminish the uncertainty of sentencing. An accused enters into a plea bargain so that he may gain some control over the sentencing process. We may assume, therefore, that if an accused enters a plea agreement and is represented by counsel, then he is aware of the possible range of sentences. Unless there is some indication on the record that the accused does not understand the nature and effect of the agreement, a negotiated plea is not invalidated merely because the colloquy does not reveal that the accused was informed of the maximum sentence.

Martin, 258 Pa.Super. at 415, 392 A.2d at 862 (emphasis added).

A careful review of the record and the circumstances in this case indicates that the holding in Martin is applicable here. Shekerko’s attempt to withdraw his plea under the guise of an ineffectiveness claim at this late stage is not justified under these circumstances. There is nothing on the record which would indicate that Shekerko did not understand the nature and effect of his guilty plea; the fact that he was not informed of the maximum sentence during the colloquy, but rather just prior to sentencing, is not sufficient to invalidate the plea. Martin, 258 Pa.Super. at 415, 392 A.2d at 862. We conclude, therefore, that Shekerko’s plea was knowingly and voluntarily entered and that counsel was not ineffective. Johnson, supra.

Order affirmed.


author: WIEAND, Judge:

text:
    639 A.2d 815
    COMMONWEALTH of Pennsylvania v. Joseph Daniel MILLER, Appellant. COMMONWEALTH of Pennsylvania v. Joseph Daniel MILLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1994.
    Filed March 30, 1994.

      Jerry A. Philpott, Duncannon, for appellant.
    Daniel Stern, Asst. Dist. Atty., New Bloomfield, for Com., appellee.
    Before CAVANAUGH, WIEAND and SAYLOR, JJ.
   WIEAND, Judge:

On April 8, 1993, Joseph D. Miller entered negotiated pleas of guilty to charges contained in two separate criminal informations. At No. 306 Perry County, 1992, Miller pleaded guilty to charges of aggravated assault, rape, involuntary deviate sexual intercourse and kidnapping. At No. 376 Perry County, 1992, Miller pleaded guilty to a charge of escape. He was scheduled to be sentenced on June 17, 1993. On that date, however, Miller expressed a desire to withdraw his pleas of guilty and was instructed by the court to file a written motion to that effect. After motions had been filed, a hearing was held on July 8, 1993. Thereafter, an order was entered which denied Miller’s motion to withdraw his pleas of guilty, and sentencing was scheduled for July 15,1993. On that date, Miller was sentenced, pursuant to the previously negotiated plea bargain, to an aggregate term of imprisonment for not less than twenty (20) years nor more than forty (40) years for kidnapping, aggravated assault, rape and involuntary deviate sexual intercourse. The sentence was to be served concurrently with a sentence which had earlier been imposed for similar charges in Dauphin County. For the charge of escape, Miller was sentenced to serve a consecutive term of imprisonment for not less than three and one-half (3$) years nor more than seven (7) years. On direct appeal from the judgments of sentence, Miller argues that the trial court abused its discretion by denying his pre-sentence motion to withdraw his pleas of guilty. He contends also that he should be permitted to withdraw his pleas because of a defective guilty plea colloquy.

With respect to pre-sentence requests to withdraw a guilty plea, the Superior Court has observed:

The present standard for determining whether a defendant before his sentence can withdraw a guilty plea was first articulated in 1973 in the seminal case Commonwealth v. Forbes, swpra [450 Pa. 185, 299 A.2d 268 (1973) ]. A request to withdraw a guilty plea has to meet both prongs of the following two-part test. First, a -withdrawal cannot be granted if to do so would substantially prejudice the prosecution. Commonwealth v. Anthony, 504 Pa. 551, 561, 475 A.2d 1303, 1308-1309 (1984); Forbes, supra, 450 Pa. at 191, 299 A.2d at 271. Second, a withdrawal request made prior to sentencing should be granted for any “fair and just” reason. Anthony, supra, 504 Pa. at 561, 475 A.2d at 1308-1309; Forbes, supra, 450 Pa. at 192, 299 A.2d at 271.
Although there is no absolute right to withdraw a guilty plea, Commonwealth v. Cole, 387 Pa.Super. 328, 331, 564 A.2d 203, 204 (1989) (en banc), requests to withdraw guilty pleas prior to sentencing should be “liberally allowed.” Commonwealth v. Shaffer, 498 Pa. 342, 345, 446 A.2d 591, 593 (1982); quoting Forbes, supra, 450 Pa. at 190, 299 A.2d at 271. Commonwealth v. Jackson, 390 Pa.Super. 639, 646, 569 A.2d 964, 968 (1990). A trial court’s decision as to whether to allow a guilty plea to be withdrawn will not be disturbed absent an abuse of discretion. Commonwealth v. Boatwright, 404 Pa.Super. 75, 82-83, 590 A.2d 15, 19 (1991); Commonwealth v. Jones, 389 Pa.Super. 159, 162, 566 A.2d 893, 894 (1989), alloc. denied, 525 Pa. 632, 578 A.2d 926 (1990). A trial court must exercise its discretion with a view towards permitting withdrawal for any fair and just reason. Commonwealth v. Hayes, 462 Pa. 291, 300, 341 A.2d 85, 90 (1975); Commonwealth v. Woods, 452 Pa. 546, 550, 307 A.2d 880, 881 (1973).

Commonwealth v. Turiano, 411 Pa.Super. 391, 396, 601 A.2d 846, 849 (1992). See also: Commonwealth v. Iseley, 419 Pa.Super. 364, 371, 615 A.2d 408, 412 (1992); Commonwealth v. Risk, 414 Pa.Super. 220, 223-224, 606 A.2d 946, 947 (1992).

In Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), the Supreme Court determined that a defendant’s assertion of innocence constituted a fair and just reason upon which to permit the pre-sentence withdrawal of a plea of guilty. Subsequently,

[t]he Superior Court has followed Forbes and has held that an assertion of innocence may constitute a fair and just reason for the pre-sentence withdrawal of a guilty plea. See: Commonwealth v. Ortiz, 334 Pa.Super. 117, 482 A.2d 1110 (1984); Commonwealth v. Kay, 330 Pa.Super. 89, 478 A.2d 1366 (1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 2009, 85 L.Ed.2d 293 (1985); Commonwealth v. Whittall, 304 Pa.Super. 258, 450 A.2d 669 (1982); Commonwealth v. Boofer, 248 Pa.Super. 431, 375 A.2d 173 (1977). Indeed, where a defendant has asserted his innocence and the Commonwealth has been unable to show substantial prejudice, it has been held to be an abuse of discretion for a trial court to deny a pre-sentence petition for withdrawal of a guilty plea. See: Commonwealth v. Woods, 452 Pa. 546, 307 A.2d 880 (1973); Commonwealth v. Forbes, supra; Commonwealth v. Ortiz, supra; Commonwealth v. Boofer, supra.

Commonwealth v. Cole, 387 Pa.Super. 328, 333-334, 564 A.2d 203, 205 (1989) (en banc).

Instantly, prior to the trial court’s acceptance of appellant’s pleas of guilty, the following inquiry took place:

THE COURT: Okay. Why are you pleading guilty to the escape charge, Mr. Miller?
MR. MILLER: Because I’m guilty.
THE COURT: You’re guilty?
MR. MILLER: Um-hum.
THE COURT: It’s a[s] good a reason as I can think of, Mr. Miller. You went over the wall when you weren’t supposed to, right?
MR. MILLER: Yeah.
THE COURT: Okay. Now, how about these other charges?
MR. MILLER: I’m guilty.
THE COURT: You’re guilty. What did you do, Mr. Miller, in connection with these other charges?
MR. MILLER: Excuse me?
THE COURT: What did you do? You tell me what you did.
MR. MILLER: Well, I kidnapped a girl, I raped her, and tried to kill her, which I did. I can’t be denying it, you know what I mean, going for any more trouble than what I have to. So, I’ll just plead guilty to the charges.
THE COURT: To paraphrase what you said, you kidnapped a girl, you raped her, and you tried to kill her?
MR. MILLER: Yes.
THE COURT: And you can’t see denying it because you did it?
MR. MILLER: Right.

On July 8,1993, a hearing was held on appellant’s motion to withdraw his pleas of guilty. Appellant initially refused to give any reasons for seeking to withdraw his pleas, stating that he had an absolute right to do so. Upon the prompting of counsel, however, appellant said that he should be permitted to withdraw his pleas because he believed that he had been pleading guilty to only two, rather than four, first degree felony charges and because his confession to these charges had been obtained illegally by police. Subsequently, during a continuation of the hearing, the following occurred:

THE COURT: Let me ask you this, Mr. Miller. I remember when I asked you in the conclusion of this colloquy when you were here earlier, I said why are you pleading guilty, Mr. Miller, on these charges? This was the kidnapping, the rape, the aggravated assault. Okay. Remember that one?
MR. MILLER: Yeah.
THE COURT: You said because I’m guilty. And I said what did you do? And you said I kidnapped a girl, I raped her and I tried to kill her.
Now, did I force you to say that?
MR. MILLER: No, you didn’t force me to say that but I’ll tell you why I said it if you want to know why. I said what Mr. Walz told me to say. He told me if I didn’t state that I was guilty of all the charges—I’m not guilty of all them charges. I might be guilty for attempted homicide charge. I ain’t guilty for rape, kidnapping. But he told me if I didn’t plead guilty to all the charges, you wouldn’t accept the guilt plea.
And I couldn’t—I mean, it wasn’t a bad deal, I mean, to have it running concurrent with Dauphin County but I thought I can’t plead guilty for something I’m not guilty of.
THE COURT: Matter of principle]?
MR. MILLER: Yeah.
THE COURT: Okay. Anything else that you have a problem with?
MR. MILLER: No, I have nothing else. I’m just raising my issue that I don’t want Mr. Walz as my attorney.

In Commonwealth v. Cole, supra, the defendant had entered a plea of guilty to charges of robbery and conspiracy only after the Commonwealth had been able to obtain the presence of a key witness whom it had flown to Philadelphia from Georgia. After the witness returned to Georgia, the defendant sought to withdraw his plea of guilty by claiming he was innocent of the charges. The trial court denied the motion, and, on appeal, the Superior Court found no abuse of discretion, reasoning as follows:

A criminal defendant will not be permitted to play fast and loose with the guilty plea process in order to delay prosecution or jeopardize the Commonwealth’s ability to prove guilt.
Under the circumstances of this case, the bald assertion of innocence appearing in appellant’s petition did not constitute a fair and just reason for allowing appellant to withdraw his plea of guilty. Not only would the Commonwealth have been prejudiced by allowing such withdrawal but appellant would have been permitted to make a mockery of the guilty plea hearing process in which appellant, after a full and complete colloquy, admitted his guilt and his role in the robbery and conspiracy.
“A guilty plea is not a ceremony of innocence, it is an occasion when one offers a confession of guilt.... The defendant is before the court to acknowledge facts that he is instructed constitute a crime.... He is there to voluntarily say what he knows occurred, whether the Commonwealth would prove them or not, and that he 'will accept their legal meaning and their legal consequence.” Commonwealth v. Anthony, 504 Pa. 551, 559, 475 A.2d 1303, 1307-1308 (1984). A criminal defendant who elects to plead guilty has a duty to answer questions truthfully. Commonwealth v. Mitchell, 319 Pa.Super. 170, 175, 465 A.2d 1284, 1286 (1983). A defendant will not be permitted to postpone the final disposition of his case by lying to the court concerning his culpability and thereafter withdraw his plea of guilty by contradicting his prior testimony and asserting innocence. Cf. Commonwealth v. Brown, 242 Pa.Super. 240, 363 A.2d 1249 (1976).
Pennsylvania has constructed its guilty plea procedures in a way designed to guarantee assurance that guilty pleas are voluntarily and understanding^ tendered. See: Pa. R.Crim.P. 319 and comment thereon. The entry of a guilty plea is a protracted and comprehensive proceeding wherein the court is obliged to make a specific determination after extensive colloquy on the record that a plea is voluntarily and understanding^ tendered. A guilty plea colloquy must include inquiry as to whether (1) the defendant understood the nature of the charge to which he is pleading guilty; (2) there is a factual basis for the plea; (3) the defendant understands that he has the right to a jury trial; (4) the defendant understands that he is presumed innocent until he is found guilty; (5) the defendant is aware as to the permissible range of sentences; and (6) the defendant is aware that the judge is not bound by the terms of any plea agreement unless he accepts such agreement. Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977). Inquiry into these six areas is mandatory in every guilty plea colloquy. Commonwealth v. Glaze, 366 Pa.Super. 517, 531 A2d 796 (1987); Commonwealth v. Moore, 365 Pa.Super. 65, 528 A.2d 1364 (1987). See also: Commonwealth v. Johnson, 355 Pa.Super. 123, 512 A.2d 1242 (1986). So many safeguards have been imposed by law to ensure that a guilty plea is voluntarily and knowingly made, that a defendant should not be permitted to withdraw his guilty plea, even before sentencing, merely by intoning the allegation that “I am not guilty,” where, as here, his plea of guilty was supported by an extensive colloquy in which the defendant expressly admitted guilt.

Commonwealth v. Cole, supra 387 Pa.Super. at 334-336, 564 A.2d at 206-207 (footnote omitted).

As in Cole, the trial court in the instant case determined that the Commonwealth would be substantially prejudiced if appellant were permitted to withdraw his pleas of guilty. The prejudice in this case, the trial court concluded, would result from the necessity of complying with a pre-trial order mandating a change of venue, which had been granted prior to appellant’s decision to plead guilty. The trial court reasoned as follows:

In the case at hand, the Commonwealth would be substantially prejudiced if the defendant were allowed to withdraw his guilty plea. Because of the pre-trial publicity regarding the defendant’s other murder charges and convictions, the defendant had been given a change of venue for both numbers 306 and 376 of 1992. Two separate trials for these separate incidents were to be held in Hollidaysburg, Blair County. Two separate juries were needed for both charges and particular pains were taken in planning to keep both juries separate. During the guilty plea colloquy, these preparations were explained to the defendant in connection with his right to a trial by an impartial jury. After the guilty plea colloquy, the defendant admitted to all of the charges and stated that he was pleading guilty because he is guilty.
After the defendant plead guilty, all of the arrangements made with Blair County were cancelled. In addition, Blair County was then chosen for the site of an unrelated murder trial for the defendant. If the defendant was allowed to withdraw his guilty plea, all of the previous preparations would have to be set up in a new county. This would substantially prejudice the Commonwealth. Furthermore, the defendant admitted to the above charges and stated he was guilty during the guilty plea proceedings. The defendant would be making a mockery of the Court and the guilty plea process if he were allowed to withdraw his pleas and burden the Commonwealth in this manner. For these reasons, this Court refused to allow the defendant to withdraw his guilty plea.

By pleading guilty in this case, appellant negated extensive efforts by the Commonwealth to find a venue for his trial in which a fair and impartial jury could be empanelled. If appellant were now permitted to withdraw his pleas, the Commonwealth would again be required to find another county in which appellant could be tried by a jury unaffected by the extensive publicity which had followed his several crimes. Not only would this entail great financial burden for the Commonwealth, it would likely result in substantial delay.

In any event, appellant’s alleged assertion of innocence rings hollow in light of his specific admission of guilt during the guilty plea colloquy. Appellant has made no claim that he is innocent of the escape charge, and his claim of innocence with respect to the other charges can at best be described as equivocal. Thus, while denying that he kidnapped or raped his victim, appellant conceded that he attempted to kill her. Under these circumstances, it is not difficult to understand the trial court’s belief that appellant was attempting to play fast and loose with the guilty plea process. The trial court did not abuse its discretion, therefore, when it concluded that appellant had not offered a fair and just reason to require the withdrawal of his pleas of guilty.

Appellant also asserts that he should be permitted to withdraw his pleas of guilty because, during the guilty plea colloquy, no inquiry was made regarding his understanding that the trial court was not bound by the terms of his plea agreement with the Commonwealth unless the court specifically accepted the terms of that agreement. This inquiry, appellant argues, is a mandatory requirement for all guilty plea colloquies, and, absent such inquiry, it cannot be concluded that a guilty plea was knowingly and voluntarily tendered.

The purpose of a guilty plea colloquy is to ensure that a guilty plea is being knowingly, voluntarily and understandingly tendered by the defendant. See: Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976); Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). See also: Commonwealth v. McClendon, 403 Pa.Super. 467, 471, 589 A.2d 706, 708 (1991) (en banc); Commonwealth v. Cole, supra 387 Pa.Super. at 335-336, 564 A.2d at 206-207. The function of the colloquy has been more fully explained as follows:

“In order for a guilty plea to be constitutionally valid, the guilty plea colloquy must affirmatively show that the defendant understood what the plea connoted and its consequences.” Commonwealth v. Broadwater, 330 Pa.Super. 234, 244, 479 A.2d 526, 532 (1984). This determination is to be made “by examining the totality of the circumstances surrounding the entry of the plea.” Id. See: Commonwealth v. Shaffer, 498 Pa. 342, 350-351, 446 A.2d 591, 595-596 (1982); Commonwealth v. Klinger, 323 Pa.Super. 181, 194-195, 470 A.2d 540, 547 (1983). Thus, even though there is an omission or defect in the guilty plea colloquy, a plea of guilty will not be deemed invalid if the circumstances surrounding the entry of the plea disclose that the defendant had a full understanding of the nature and consequences of his plea and that he knowingly and voluntarily decided to enter the plea. See: Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984); Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982). See also: Commonwealth v. Iseley, 419 Pa.Super. 364, 377-378, 615 A.2d 408, 415 (1992).

Commonwealth v. Fluharty, 429 Pa.Super. 213, 218-221, 632 A.2d 312, 314-315 (1993). Therefore, “[w]here the record clearly demonstrates that a guilty plea colloquy was conducted, during which it became evident that the defendant understood the nature of the charges against him, the voluntariness of the plea is established.” Commonwealth v. Lewis, 430 Pa.Super. 336, 339, 634 A.2d 633, 635 (1993).

The guilty plea colloquy conducted by the trial court in this case demonstrates that appellant tendered his pleas of guilty with full understanding of the nature of the charges to which he was pleading guilty, as well as the consequences of his pleas. The terms of his plea bargain with the Commonwealth were extensively reviewed upon the record, and, after accepting appellant’s pleas of guilty, the trial court indicated that it would be bound by the terms of the plea bargain. The sentence subsequently imposed by the trial court was consistent with the plea bargain which appellant had made with the Commonwealth. Under these circumstances, there was no defect in the guilty plea colloquy which requires that appellant be permitted to withdraw his pleas of guilty.

The judgments of sentence are affirmed.

      . Although still the law in this Commonwealth, the rule adopted by the Supreme Court in Commonwealth v. Forbes, supra has been the subject of much criticism in recent years. See, e.g.: Commonwealth v. Iseley, supra 419 Pa.Super. at 371-374, 615 A.2d at 412-413; Commonwealth v. Rish, supra 414 Pa.Super. at 225 n. 6, 606 A.2d at 948 n. 6; Commonwealth v. Turiano, supra 411 Pa.Super. at 400-406, 601 A.2d at 851-854; Commonwealth v. Cole, supra 387 Pa.Super. at 336-337 n. 6, 564 A.2d at 207 n. 6.


text:
    639 A.2d 820
    COMMONWEALTH of Pennsylvania, v. Troy Scott SPENCER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 20, 1993.
    Filed March 30, 1994.

      Daniel K. Taylor, Lancaster, for appellant.
    Craig W. Stedman, Asst. Dist. Atty., Lancaster, for Com., appellee.
    Before WIEAND, HUDOCK and MONTGOMERY, JJ.
   WIEAND, Judge:

Troy Scott Spencer was tried by jury and was found guilty of robbery and criminal conspiracy in connection with the knife-point holdup of a Turkey Hill Convenience Store in Lancaster during the early morning hours of January 17,1992. Post-trial motions were denied, and Spencer was sentenced to pay fines and undergo concurrent sentences of imprisonment of not less than five (5) years nor more than twenty (20) years for robbery and not less than one (1) year nor more than ten (10) years for conspiracy. On direct appeal from the judgment of sentence, Spencer contends that the evidence was insufficient to connect him with the crimes committed. He also contends that the trial court erred in allowing a witness to testify that his gait was similar to that of the robber and that his counsel rendered ineffective assistance.

When reviewing an appeal based on the sufficiency of the evidence, “[w]e view the evidence in the light most favorable to the Commonwealth, which has won the verdict. We then determine whether the evidence is sufficient to permit a jury to determine that each and every element of the crimes charged was established beyond a reasonable doubt.” Commonwealth v. Sattazahn, 428 Pa.Super. 413, 418, 631 A.2d 597, 600 (1993). See also: Commonwealth v. Chambers, 528 Pa. 558, 565, 599 A.2d 630, 633 (1991), cert. denied, — U.S. —, 112 S.Ct. 2290, 119 L.Ed.2d 214 (1992); Commonwealth v. Sanders, 426 Pa.Super. 362, 367, 627 A.2d 183, 185 (1993). Although guilt cannot be found from mere surmise, conjecture or speculation, Commonwealth v. Scott, 409 Pa.Super. 313, 315, 597 A.2d 1220, 1221 (1991), circumstantial evidence may sustain a conviction if the totality of the evidence establishes guilt beyond a reasonable doubt. Commonwealth v. Chambers, supra, 528 Pa. at 568, 599 A.2d at 635. Issues of credibility and of the weight to be assigned to evidence are for the jury, which is free to believe all, part or none of the testimony. See: Commonwealth v. Griscavage, 512 Pa. 540, 546, 517 A.2d 1256, 1259 (1986). See also: Commonwealth v. Sattazahn, supra; Commonwealth v. Bailey, 322 Pa.Super. 249, 269-270, 469 A.2d 604, 615 (1983). It is not necessary that the evidence be totally incompatible with innocence as long as the evidence is not “ ‘so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), citing Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

“A person is guilty of robbery if, in the course of committing a theft, he ... threatens another with or intentionally puts him in fear of immediate serious bodily injury....” 18 Pa.C.S. § 3701(a)(1)(h). To be guilty of conspiracy, a person must have agreed with another to commit or participate in the commission of a crime. 18 Pa.C.S. § 903. Our review of the record confirms that the Commonwealth presented testimony and evidence which established each and every element of these offenses.

At or about 2:55 a.m. on January 17, 1992, a man entered the Turkey Hill Store brandishing a knife and wearing a black T-shirt over his head, with holes cut out for his eyes. He ordered Robert Fogel, who was working the night shift, to “give it up.” As Fogel retrieved approximately one hundred ($100) dollars from the cash register and gave it to the robber, William Dennison, while standing behind a nearby counter, observed the robber’s appearance. The robbery was also recorded on video tape by the store surveillance camera.

When the robber left the store, Dennison observed him enter an approaching vehicle. As the vehicle drove away, Dennison entered his car, followed the vehicle carrying the robber and obtained the number on the license plate. He saw the vehicle stop; ■ whereupon, two men left on foot. Dennison then returned to the convenience store, where he found that the police had already arrived. He and Fogel described the robber as a white male, wearing a plain black leather jacket, dark trousers, sneakers and a black T-shirt over his head. They said he was about 5'5" or 5'6" tall and of medium build. He was not wearing glasses. Dennison said the robber’s eyes were green.

With information supplied by Dennison, police were able to find the getaway car and arrest Mark Walton, who was found standing near the car. Walton was wearing dark clothes and a leather jacket, and Dennison identified him as the robber. Following his arrest, Walton implicated Spencer in the robbery. He and Spencer, Walton said, had been drinking at Spencer’s house when they decided to commit a robbery. After splitting a submarine sandwich at the Rendezvous Steak House, Walton and Spencer drove to Walton’s house, where they obtained a butcher knife and a black T-shirt. They then went to the Turkey Hill Convenience Store, where, according to Walton, Spencer entered the store while Walton waited in the car. After Spencer committed the robbery, both men drove away. Their car ran out of gas after only a few blocks, however, and they abandoned it. Spencer, according to Walton, had been wearing dark clothing and a plain black leather jacket.

At trial, Dennison identified Spencer as the person who had committed the robbery. He noted that it was Spencer who had the green eyes, and he offered an explanation for the mistake which had led him initially to identify Walton. Also called as a Commonwealth witness was Cindy Wimer, who had known appellant for approximately a year and who had observed the distinctive and easily recognized gait with which he walked. When appellant walked, she said, he had a “bounce in his step ... like rolling off a step.” She was shown the video tape of the robbery, and said the robber walked like Spencer.

Appellant did not testify but offered an alibi defense and attempted to show that he had been at a party at his house with other people on the night of the robbery, where he had fallen asleep. Two defense witnesses had observed appellant at the party but were unable to be definite about his whereabouts at 2:55 a.m.

The total evidence was sufficient to permit a jury to find that appellant had entered the Turkey Hill Store and had committed the robbery on January 17, 1992. It was not rendered insufficient merely because Walton had been an accomplice. “Where parties in crime testify against each other, their testimony must be recognized as coming from a corrupt source and therefore must be subjected] to the closest scrutiny.” Commonwealth v. Todt, 318 Pa.Super. 55, 63, 464 A.2d 1226, 1230 (1983). However, guilt may be predicated even upon the uncorroborated testimony of an accomplice. Commonwealth v. Goldblum, 498 Pa. 455, 466, 447 A.2d 234, 240 (1982); Commonwealth v. Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385 (1980); Commonwealth v. Todt, supra.

In the instant case, Walton’s testimony was corroborated by the testimony of William Dennison and, in part, by the testimony of Cindy Wimer. Dennison’s testimony was not rendered incompetent by his prior identification of Walton as the robber. He was questioned about his prior identification and offered an explanation for the mistaken nature thereof. His identification of appellant at trial, however, remained unshaken by cross-examination. The credibility of his testimony, therefore, was for the jury. Commonwealth v. Davis, 313 Pa.Super. 355, 360-361, 459 A.2d 1267, 1270 (1983).

Appellant argues that Cindy Wimer’s testimony was incompetent and should have been disallowed because she was not qualified to express an opinion that the robber’s gait was similar to his. Her testimony was clearly relevant to establish the identity of the robber. See: Commonwealth v. Fromal, 392 Pa.Super. 100, 572 A.2d 711 (1990) (voice identification testimony); Commonwealth v. Miller, 385 Pa.Super. 186, 560 A.2d 229 (1989) (same).

Whether testimony constitutes fact or opinion is sometimes a difficult determination to make, for at times it may include elements of both. That appellant walked with a gait similar to that of the robber was such testimony. Whether fact or opinion, however, the testimony was properly received by the trial court.

In Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978), the Superior Court elected to adopt the approach espoused by Rule 701 of the Federal Rules of Evidence. This approach is as follows:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

Here, the witness’s opinion that the gaits of the robber and appellant were similar was rationally based on her perception and was essential to a clear understanding of her testimony. The trial court did not err by allowing the jury to hear this testimony by the witness.

To establish a claim for ineffective assistance of counsel, appellant must show that: (1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have some reasonable basis designed to effectuate appellant’s interests; and (3) counsel’s ineffectiveness prejudiced appellant. Commonwealth v. Marshall, 534 Pa. 488, 496, 633 A.2d 1100, 1104 (1993); Commonwealth v. Williams, 532 Pa. 265, 274, 615 A.2d 716, 720 (1992); Commonwealth v. Stokes, 532 Pa. 242, 250, 615 A.2d 704, 708 (1992). Trial counsel is presumed to have been effective, and it is appellant’s burden to prove otherwise. Commonwealth v. Marshall, supra. In Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987), the Superior Court said:

When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the court below to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing. See Commonwealth v. Spotts, 341 Pa.Super. 31, 33, 491 A.2d 132, 134 (1985). However, remand for an evidentiary hearing is not a discovery tool wherein counsel may conduct investigation and interrogation to search for support for vague or boilerplate allegations of ineffectiveness. Rather, appellant “must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective,” before remand for an evidentiary hearing -will be granted. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981).

Id. 368 Pa.Super. at 377, 534 A.2d at 485.

Appellant contends that three additional witnesses were available and, if called, would have confirmed that he had been at a party in his home on the night of the robbery. Whether they would have provided an alibi for the precise time of the robbery, however, does not appear. It appears, rather, that their testimony would have been cumulative of other defense witnesses who did testify generally to appellant’s presence at a party at his home. As a general rule, counsel will not be deemed ineffective for failing to call witnesses whose testimony is merely cumulative of that of other witnesses. Commonwealth v. Gonzales, 415 Pa.Super. 65, 75, 608 A.2d 528, 533 (1992); Commonwealth v. Shaw, 398 Pa.Super. 341, 344-345, 580 A.2d 1379, 1381 (1990).

Appellant contends that another witness, Rick Kautz, was available and, if called, would have testified that Walton had told him that he wrongfully implicated appellant. This testimony would have substantially impaired the credibility of Walton’s trial testimony and, if believed, may have resulted in a different verdict. We are constrained to conclude, therefore, that there is arguable merit in this contention.

Finally, appellant contends that his trial counsel was ineffective for failing to move pre-trial to suppress the identification testimony of William Dennison. Dennison had initially identified Walton as the robber. He allegedly changed his identification only after being told by police that they had in custody another person who, they believed, had committed the robbery. Police allegedly showed Dennison a photograph of appellant, which Dennison was allowed to compare with a photograph of Walton. According to appellant, it was then for the first time that Dennison changed his identification of the robber and implicated appellant.

If this is what happened, there is at least arguable merit in appellant’s contention that Dennison’s photo-identification of appellant was the product of police suggestion. “The problem with an impermissible suggestive identification is the potential for misidentification, resulting in a due process violation if that identification is admitted at trial.” Commonwealth v. McGaghey, 510 Pa. 225, 228, 507 A.2d 357, 359 (1986). In Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976), the Pennsylvania Supreme Court said:

[T]he testimony of a witness who will point an accusing finger at the defendant during the trial, should be prohibited unless the prosecution establishes by clear and convincing evidence at a suppression hearing that the witness’s proposed trial identification will be reliably based on the witness’s observation at the time of the crime, and that the identification was not induced by events occurring between the witness’s observations at the time of the crime and the witness’s in-court identification.

Id. at 204, 352 A.2d at 20.

Despite a suggestive identification procedure, an in-court identification will not be suppressed if the Commonwealth has shown by clear and convincing evidence that there exists an independent basis for the in-court identification. Commonwealth v. Jarecki, 415 Pa.Super. 286, 296, 609 A.2d 194, 199 (1992). This requires a consideration of:

1) the circumstances under which the witnesses viewed the actual crime; 2) the witnesses’ degree of attention; 3) the accuracy of the description prior to the suggestive photo array; 4) the level of certainty in identifying the perpetrator; and 5) the lapse of time between the crime and illegal confrontation.

Commonwealth v. Green, 321 Pa.Super. 246, 253, 467 A.2d 1346, 1349 (1983). See: Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976). See also: Commonwealth v. McIntosh, 328 Pa.Super. 255, 261-262, 476 A.2d 1316, 1319 (1984).

A consideration of these factors does not demonstrate unequivocally and as a matter of law that Dennison had an independent basis for his in-court identification of appellant so as to nullify any arguable merit in appellant’s contention that counsel should have moved to suppress Dennison’s in-court identification testimony. The record discloses that Dennison, from where he was hidden behind a counter, was able to view the robber’s profile for only a few moments. He described the robber’s attire and build; but because the robber’s face was covered, Dennison could not describe his facial features other than the color of his eyes. His description of the robber’s build, moreover, was very general; and he initially identified Walton, whose build was similar, as the robber. Thus, there is arguable merit to appellant’s contention that Dennison’s in-court identification testimony was a product of the suggestive photo display used by police to induce Dennison’s identification of appellant.

Because there is arguable merit in at least two of appellant’s claims that counsel rendered ineffective assistance and that appellant may have been prejudiced thereby, an evidentiary hearing is necessary. Because these issues are being raised for the first time on appeal, moreover, trial counsel has not had an opportunity to be heard.

The judgment of sentence is vacated, at least for the time being, and the case is remanded to the trial court for an evidentiary hearing on those averments of ineffective assistance of counsel which this court has determined to have arguable merit. If counsel’s assistance is found to have been effective, sentence may be reimposed. If counsel is found to have rendered ineffective assistance, however, a new trial must be granted. Jurisdiction is not retained meanwhile.

      . These sentences were also to run concurrently with a prior sentence being served for robbery and conspiracy.

      . Dennison was a friend of Fogel and had stopped in the store to help his friend pass the time.

      . An employee confirmed that Walton and Spencer had been at the Steak House at or about 2:30 a.m.

      . Cindy Wimer had been appellant’s parole officer. Any reference to this relationship was carefully excluded by the trial court.


author: POPOVICH, Judge:

text:
    639 A.2d 826
    Jeanette A. BULLOCK, Appellee, v. Franklin Hayes BULLOCK, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1994.
    Filed March 31, 1994.

      Bernard D. Cullen, Langhorne, for appellant.
    Bernice J. Koplin, Philadelphia, for appellee.
    Before KELLY, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

The defendant/appellant, Franklin Hayes Bullock, Jr., appeals the order of the Court of Common Pleas of Bucks County directing the payment of arrearages for child and spousal support. We affirm.

The facts of record disclose that the defendant and plaintiff, Jeanette A. Bullock, were married on September 5, 1937, divorced on October 23, 1992, and three children were born of the marriage: Thackery (born June 21, 1940), Whitney (born September 14, 1942), and Paul (born January 2, 1957).

It appears that this dispute had its roots in the defendant’s excessive gambling, which consumed his money and time, leaving very little of either for his family. As a consequence, the plaintiff secured a warrant for the defendant’s arrest for “desertion and non-support”, which resulted in his arrest (on December 17, 1958) and incarceration (until January 9, 1959). The release date coincided with the entry of a court order directing that the defendant pay $35.00 per week in spousal and child support. The plaintiff recalled that she and the defendant were present when a judge ordered payment. N.T. 5/13/93 at 43. However, no support was ever paid.

In fact, it was not until the parties’ son (Paul) died on November 23, 1991, and the defendant sought appointment as administrator of the estate, that the plaintiff learned of the defendant’s Florida residence. Thereafter, the plaintiff instituted suit by Petition for Contempt and the Payment of Arrearages to collect support due over a period of 33 years, plus interest, which was calculated to be $214,166.98.

Hearings were conducted on May 13 and June 11, 1993, at which time the defendant testified that he always gave money to his family, he was unaware that a support order had been entered, and his family always knew of his whereabouts during the 33-year hiatus. In contrast, the plaintiff recounted that, following release from jail, hostility was exhibited by the defendant, he continued gambling and provided no support to the family, leaving them to subsist on what her son (Whitney) was able to earn. Further, she received neither public assistance nor help from other family members during this time. N.T. 5/13/91 at 50.

The trial court, after hearing all of the testimony, directed that the defendant pay support; to-wit:

... Effective January 9, 1959 to September 13, 1960, defendant shall pay the sum of $35.00 per week for the support of his wife and two minor children, Whitney and Paul as per prior Order of Court; effective September 14, 1960 to January 1, 1975, defendant shall pay the sum of $30.00 per week for the support of his wife and one minor child, Paul. From January 2, 1975 until October 23, 1992, the date of divorce, defendant shall pay the sum of $25.00 spousal support. The Order is thereafter terminated. The Bucks County Domestic Relations Office is ORDERED and DIRECTED to calculate the arrears pursuant to the above allocation.
Defendant shall pay a lump sum in the amount of $10,-000.00 within 30 days, and thereafter shall pay the sum of $55.00 per week (arrears only) until the balance is paid in full.

This appeal followed and raises four issues for our consideration. The first questions whether the plaintiff is precluded, by virtue of the decree divorcing the parties in 1992, from prosecuting this action. We find she is not. See Commonwealth ex rel. Smith v. Smith, 260 Pa.Super. 203, 393 A.2d 1224, 1225, 1226 (1978), wherein we wrote:

The first question is whether appellee’s right to recover the arrearages is affected by the fact that she and appellant have been divorced.
“The purpose of support is to provide a dependent spouse, with a reasonable living allowance. The obligation to provide support is imposed as an incident of the marital relationship which is conceived of as a unity. When that unity is severed the obligations incident to it cease.” Accordingly, upon the divorce, appellant’s obligation to support appellee ceased. However, “[t]he duties, rights and claims accruing to [the husband] in pursuance of his marriage which ceased and determined [sic] with the decree of divorce, did not apply to his existing financial obligations that were legally fixed prior thereto.” It is therefore clear that a court may compel compliance with a support order, including an order for the payment of arrearages, after the obligation of support has ceased, as long as the order was entered before the divorce. [Citations omitted]

Consistent with Smith, we hold that, albeit the defendant’s spousal support obligations ceased upon divorce, the duties, rights and claims attendant to the marriage and accruing thereunder survived and are enforceable as a legally created duty. Id.; 23 Pa.C.S.A. § 3503.

The second issue alleges the bar of the doctrine of laches to the plaintiffs entitlement to delinquent support payments.

As stated by this Court in Patten v. Vose, 404 Pa.Super. 426, 590 A.2d 1307, 1309, 1310 (1991) (Citations omitted:

The test for applying the doctrine of laches has been stated as follows:
The party asserting laches must show, first, a delay arising from the other party’s failure to exercise due diligence, and second, prejudice from the delay.... It is not enough to show delay arising from failure to exercise due diligence; for “laches will not be imputed where no injury has resulted to the other party by reason of the delay.”
# * # * * *
Laches requires not only a passage of time, but also a resultant prejudice to the party asserting the doctrine. Laches is based on “some change in the condition or relations of the parties which occurs during the period the complainant unreasonably failed to act.”
The existence of laches is a factual issue to be decided according to the circumstances in each particular case. “[T]he burden of proof with respect to the doctrine [of laches] is upon the party asserting the defense; in order to meet this burden, the party alleging the delay must demonstrate prejudice.” “[D]elay alone, no matter how long, does not itself establish laches.”
“Courts have been extremely cautious in applying the doctrine of laches to situations like the one before us in which a child support order has not been enforced, even when long periods of time are involved.”
* ❖ 5}! * * *
“Prejudice is an essential element of laches; in the absence of prejudice to the party asserting laches, the doctrine will not be applied.” [Citations omitted]

Accord Commonwealth ex rel. Brendel v. Brendel, 429 Pa.Super. 319, 632 A.2d 876, 879-880 (1993).

In the instant case, it was the defendant’s testimony that the plaintiff and children knew of his whereabouts at all times, and he was unaware of the issuance of any support order.

The trial court, being in the best position to assess credibility, concluded that a court order had been effectuated and the defendant had made no payments during the life of the order, nor did he offer any evidence of “prejudice” essential to a defense of laches thus averting the enforcement efforts by the plaintiff.

The appellant’s duty to provide support for his wife and children had been established by court order, and his failure to comply therewith was clearly established by judicial records. Under these circumstances, he cannot complain that enforcement was delayed. See Patten, supra (The passage of 23 years prior to seeking enforcement of a support order did not run afoul of the doctrine of laches).

Further, the appellant has been employed during the period that support is sought; he presently collects social security ($638 per month); and he is embarking on a new career as an “Amway” representative, estimated to provide him with income ranging from $25,000 to $33,000 per year. Thus, we find that the appellant has failed to demonstrate how he has been “prejudiced” (a change or condition in the relations of the parties during the time in question) triggering the doctrine of laches to bar the appellee’s efforts to recover arrearages due under a prior court order. Id.

Next, the appellant avers that the statute of limitations (6 years) precludes the appellee from collecting some or all of the arrearages awarded by the trial court.

“It has long been held [that] the statute of limitations will not bar . relief in actions between husband and wife.... ” Horowitz v. Horowitz, 411 Pa.Super. 21, 600 A.2d 982, 985 (1991) (Citations omitted). Applying this precept here, given that the parties were divorced on October 23, 1992, the plaintiffs filing of a Petition for Contempt and for Payment of Arrearages on January 4, 1993, falls within the statute of limitations for instituting a cause of action. See, e.g., 42 Pa.C.S.A. § 5527 (6 years). Therefore, the plaintiff was not foreclosed from initiating collection proceedings on overdue support payments.

Moreover, one must appreciate the substantial difference between a support obligation created by court order, see Jackman v. Pelusi, 379 Pa.Super. 361, 550 A.2d 199, 204 (1988), and support entitlements arising out of private contracts. Id. The former is the by-product of statute and enforceable by operation of law, whereas the latter is distinguishable therefrom as a obligation governed by contract law. Hollman v. Hollman, 347 Pa.Super. 289, 500 A.2d 837 (1985) (en banc), rev’ed on other grounds, 515 Pa. 288, 528 A.2d 146 (1987).

Consequently, the defendant’s support requirements resulting from a court order rather than an agreement, the trial court had the primary responsibility to implement (by operation of law) the plaintiffs right to support pursuant to the 1959 order. Jackman, supra; Hollman, supra. Thus, the court did not act improperly in enforcing the appellee’s support order.

Lastly, the appellant argues that he was denied due process at the time of the 1959 support hearing. He premises this averment on his inability to recollect either being present or having representation at the hearing.

Our examination of the record, which the appellant stipulated to as accurate (see N.T. 5/13/93 at 31-32), indicates that the appellant was committed to the Bucks County Prison on December 17, 1958, and discharged on January 9, 1959, by order of court. Further, the January 1959 Term of the Bucks County Court of Common Pleas documents a hearing being conducted on January 9, 1959, against the appellant for “desertion and non-support”. As a result, the appellant was directed to pay $35.00 per week toward the support of the plaintiff and his then two minor children. Additionally, the appellant’s presence at the hearing, held in open court, was corroborated by the plaintiff. N.T. 5/13/93 at 43.

The trial court, again, as the arbiter of fact and credibility, heard the differing accounts of the appellant and appellee. And, based on the evidence and testimony proffered on the question of due process (ie., the appellant’s absence from the 1959 support hearing), the trial court wrote:

After hearing, we dismiss defendant’s application for dismissal based on ... denial of due process---- [biased on the evidence presented at the hearing----

From our review, the trial court’s determination that the appellant was not denied due process (either substantive or procedural) is supported by the record, and we will affirm the trial court’s order in this regard.

Accordingly, having scrutinized all of the issues proffered by the appellant and finding none to warrant a reversal of the order appealed, we affirm.

Order affirmed.

      . At the time of the filing, the plaintiff and defendant were each 76 years of age.

      . The reasons given by the plaintiff for delaying enforcement of the suppprt order were two-fold: 1) she did not know ol' the defendant’s whereabouts; and 2) she “was unable to afford the significant legal fees needed to pursue’’ the defendant.

      . The defendant also testified to caring for an elderly woman (in her 90s) in the Florida area. His remuneration for assisting her is free room and board.


author: HESTER, Judge:

text:
    639 A.2d 830
    Renee JEFFERSON v. Tyrone PERRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 7, 1994.
    Filed April 5, 1994.

      Valerie I. Harrison, Philadelphia, for appellant.
    Michael A. Shore, Philadelphia, for appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

Appellant, Tyrone Perry, appeals from the decision of the Philadelphia Court of Common Pleas ordering him to pay support for Tyrone Kyle Jefferson Perry and determining that he was estopped from denying paternity of the child. We reverse.

Renee Jefferson (hereinafter also referred to as “Mother”) filed a complaint for child support for Tyrone Jefferson Perry, born out of wedlock on July 23, 1987, and Dorcas Renee Jefferson Perry, born November 11, 1988, wherein she sought to establish that Mr. Perry was the putative father of the children. At a May 6, 1992 pretrial conference, the parties agreed to blood testing for the purpose of establishing paternity. Blood tests were conducted on May 20, 1992. The blood studies established that there was a 99.16% probability that appellant is the father of Dorcas Perry, but excluded appellant as the father of Tyrone. Nonetheless, the common pleas court directed that a trial with respect to the issue of appellant’s paternity be held. On July 16, 1992, following the testimony of the parties, the Honorable John L. Braxton determined that appellant was estopped from denying that he was Tyrone’s father. Then, without any evidence regarding either party’s income or expenses with the exception of the erroneous representation by Mother’s counsel that appellant recently had purchased a 1992 Lincoln Town Car, the common pleas court entered a temporary order of support. The order awarded support of $50.00 per week per child, attached appellant’s wages, directed appellant to pay for the blood studies, including the one which excluded him as the father, and set the case for a hearing before a permanent hearing officer.

A hearing scheduled for September 15, 1992, was rescheduled to enable Mother to obtain new counsel. Finally, on October 22, 1992, a support hearing was held before a permanent hearing officer. The common pleas court denied appellant’s motion for post-trial relief, and on November 16, 1992, entered an order directing appellant to pay $237.00 bi-weekly for the support of Tyrone and Dorcas, $10.00 bi-weekly on arrearages, and $340.00 for blood studies, and directing appellant to provide health care coverage through his employment. It also amended the wage attachment to reflect the higher amounts. This appeal followed.

The evidence at the July 16, 1992 hearing established that beginning in 1986 and for the ensuing three or four years, the parties had an intermittent relationship. Mother testified that in November, 1986, when the parties were not involved with each other, she learned she was pregnant. She identified the father of the child as Albert Charles Henry. Notes of Testimony (“N.T.”), 7/16/92, at 17. Notwithstanding this fact, Mother testified that appellant telephoned her, having heard that she was pregnant. Mother claimed that she told appellant he was not the father of the child, but appellant told her “he would be the father of the baby, whether it was his or not.” Id. at 8-9. She stated that she was going to put the child up for adoption, but based upon appellant’s representation, she chose to keep the baby. Id. Mother further testifíed that appellant insisted that she name the child after him. The parties never have married and never have lived together. Mother also acknowledged at the hearing that appellant had not stayed at her house for one and one-half years.

Appellant testified as follows. Mother told him he was the father of the child and never told him that he was not. Id. at 19. He first learned that Tyrone was not his son when the blood studies came back. However, he acknowledged that since he and appellee had stopped seeing each other, appellee’s friends told him that appellee had begun saying that appellant was not the father. Id, at 19, 24. Appellant stated that the parties indeed had discussed what to name the child, that it was Mother’s idea to name the baby after him, and that he acquiesced, based on Mother’s representation that the child was his. Id. at 28. He also admitted that he placed the child on his medical insurance through his employment, also based upon Mother’s representation that the child was his. Id.

At the conclusion of the July 16, 1992 hearing, the common pleas court stated:

Very well. I am going to adjudicate him to be the father of this child. The reason being is The Court has heard sufficient evidence to establish that he held himself out to be the father of this child. Under the estoppel theory, in the mind of this court, the period of time at which he could have, had he wanted to question, he didn’t question. That is to say, the three years when there may have been a relationship of some sorts between the defendant and the plaintiff in this action.
The Court also believes that by in fact acquiring insurance for this child, that, in and of itself, is an indication that he held himself out to be in fact the father of the child. In the mind of The Court, that’s sufficient, and I will adjudicate him to be the father. He is estopped.

N.T., 7/16/92, at 29. As noted, the court then attached appellant’s wages and entered a temporary support order in the absence of any evidence of the parties’ income or expenses.

The Pennsylvania Supreme Court recently commented on the theory of estoppel as it has developed in the area of paternity.

[U]nder certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child. These estoppel cases indicate that where the principle is operative, blood tests may well be irrelevant, for the law will not permit a person in these situations to challenge the status which he or she has previously accepted. However, the doctrine of estoppel will not apply when evidence establishes that the father failed to accept the child as his own by holding it out and/or supporting the child.

Jones v. Trojak, 535 Pa. 96, —, 634 A.2d 201, 206 (1993) (citations omitted).

The doctrine of equitable estoppel in Pennsylvania law was described by our Supreme Court in John M. v. Paula T., 524 Pa. 306, 318-19, 571 A.2d 1380, 1386-87 (1990) (emphasis in original) (citations omitted).

We see the Commonwealth/family interests highlighted by the “estoppel” cases. In these cases, it is recognized that, under certain circumstances, a person might be es-topped from challenging paternity where that person has by his or her conduct accepted a given person as father of the child. The classic example of this principle is where a man who has lived with a woman and her children for a number of years and has held himself to the world as the father of said children, may be estopped from seeking court-ordered blood tests in a belated attempt to deny paternity.... These estoppel cases indicate that where the principle is operative, blood tests may be irrelevant, for the law will not permit a person in these situations to challenge the status which he or she has previously accepted....
The General Assembly has codified the principle of “paternity by estoppel” is its Act of June 17, 1971, ... which provides:
Children; legitimacy; determination of paternity
(b) For purposes of prescribing benefits to children born out of wedlock by, from and through the father, paternity shall be determined by any one of the following ways:
(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

We also have addressed the theory of estoppel on numerous occasions. In Gulla v. Fitzpatrick, 408 Pa.Super. 269, 596 A.2d 851 (1991), we noted that the application of the doctrine of equitable estoppel aims at achieving fairness between the parents by holding them both to their prior conduct regarding the paternity of the child. We stated in Gulla,

The advisability of applying equitable estoppel ... will often be bolstered by the fact that to do so will serve the best interests of the child, who has developed a parent-child relationship with the man who has assumed the responsibilities of fatherhood. As an en banc panel of the court noted in Commonwealth ex rel. Coburn v. Coburn, 384 Pa.Super. 295, 558 A.2d 548 (1989):
... the best interests of the child sometimes require that a non-biological parent or stepparent, who has nurtured the child and developed a loving relationship, must be given custody and/or visitation rights even though his relationship with the natural mother may have ended.

Id., 408 Pa.Super. at 280, 596 A.2d at 856-57. Moreover, principles of estoppel are peculiarly suited to cases where the child is conceived out of wedlock and no presumptions regarding paternity apply. Id.; Everett v. Anglemeyer, 425 Pa.Super. 587, 625 A.2d 1252 (1993).

Our review of the testimony in this case compels the conclusion that it does not rise to the level of clear and convincing evidence to support a finding of paternity. Both parties admitted that during the child’s infancy, appellant, who then believed the child was his, had a relationship with the child. However, even then the parties did not live together. The trial court, in its opinion, acknowledged that as of July 16, 1992, appellant had not visited the child for one and one-half to three years. Thus, the parties had no relationship since Tyrone was two to three years old. Appellant has never supported the child; appellee admitted that fact in her complaint for support. Both parties noted that when Tyrone was a baby, appellant bought diapers and milk for him.

The trial court stated in its opinion that appellant has had a relationship with Tyrone since his birth and has openly held himself to the world as Tyrone’s father. There is nothing in the record to support this statement. Indeed, there is testimony to refute it. Both parties testified that appellant had not seen the child for one and one-half years, at least. N.T., 7/16/92, at 16, 20. Mother testified that she had never taken Tyrone to appellant’s residence to visit him. Id. at 15-16.

The trial court also erred in determining that appellant’s delay in challenging paternity was sufficient to estop his denial of paternity. We have noted that a father may be estopped from denying paternity by long delay in raising the issue at all. Sanders v. Sanders, 384 Pa.Super. 311, 558 A.2d 556 (1989). However, we qualified the above by stating that the principle came into play only if the father was aware of non-paternity. The trial court relies on appellant’s testimony that he heard some of appellee’s friends say that Mother had claimed appellant was not Tyrone’s father. A review of the transcript clearly reveals that appellant’s testimony in that regard referred to the time period in the year and one-half preceding the July 16, 1992 hearing. Indeed, that was the time period when appellant raised the issue of his non-paternity of Tyrone.

If there is injustice in this case, it is that appellant is being forced to support a child that is not his and "with whom he has no relationship. We do not believe that the doctrine of equitable estoppel was meant to apply in a situation with these facts. In the context that the doctrine is invoked herein, it is meant to apply to a person who openly holds the child out to the world and supports the child. Then, that person is estopped from denying paternity based upon his conduct and the relationship that has inured to the child because of that conduct. While there is some minimal evidence that appellant purchased items for the child when he was a baby and provided health coverage for him based upon the child’s mother’s representation that the child was his, it does not rise to the level of clear and convincing evidence to support a determination of paternity. Moreover, unlike the trial court, we attach no significance to Mother’s statement that appellant is the only father Tyrone has ever known, in light of the facts that appellant has not even interacted with the child in three to four years and that Mother admits to knowing the identity of Tyrone’s biological father. Most convincing to us is that there is no clear and convincing evidence of any relationship between Tyrone and appellant.

Orders of November 16, 1992, and July 16, 1992, insofar as they relate to Tyrone Kyle Jefferson Perry, are reversed. Jurisdiction relinquished.


author:
OLSZEWSKI, Judge.
      HUDOCK, Judge,

text:
    639 A.2d 1181
    John SZPYNDA and Marie Szpynda, his wife, Appellants, v. Mark C. PYLES, M.D. and Berwick Hospital, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1993.
    Filed Feb. 18, 1994.
    Reargument Denied May 3, 1994.

      William F. Anzalone, Wilkes-Barre, for appellants.
    Francis G. Wenzel, Jr., Wilkes-Barre, for appellee Pyles.
    Joseph A. Murphy, Scranton, for appellee Berwick Hosp.
    Before OLSZEWSKI, JOHNSON and HUDOCK, JJ.
   OLSZEWSKI, Judge.

John and Marie Szpynda appeal the order granting summary judgment in favor of defendants, Dr. Mark Pyles and Berwick Hospital, in this medical malpractice action. We reverse.

On March 1,1988, John Szpynda was working for PMC, Inc. when his left hand got caught in a splicing machine. The machine crushed his left hand, wrist and forearm, and severed his ulnar artery. He was taken to Berwick Hospital where Dr. Mark Pyles performed reconstructive surgery. One week later, Mr. Szpynda still experienced severe pain. After further testing, he was flown to Thomas Jefferson University Hospital in Philadelphia for more surgery to improve his blood flow and save his hand. This surgery and subsequent physical therapy proved unsuccessful, and by December 15, 1988, Mr. Szpynda knew (or should have known) that he had lost the use of his hand.

The Szpyndas settled a products liability claim against the splicing, machine’s manufacturer in September of 1991. In March of 1991, during the pendency of this claim, the machine’s manufacturer requested that Mr. Szpynda be examined by Dr. Herbert Ecker. Dr. Ecker told Mr. Szpynda that his disabling injury was caused not by the industrial accident, but by an improper surgical procedure performed by Dr. Pyles. The Szpyndas commenced a medical malpractice action against Dr. Pyles on April 24,1991, less than two months after being informed of the possible negligent treatment. Defendants moved for summary judgment, arguing that the Szpyndas’ action was time-barred by the two-year statute of limitations. The Szpyndas responded that the “discovery rule” exception to the statute of limitations should toll the statute until March of 1991, when Mr. Szpynda was informed of the defendants’ causal negligence.

The trial court granted summary judgment for the malpractice defendants, holding that the statute of limitations began running in December of 1988, when Mr. Szpynda knew his injury was disabling; the trial court held that the discovery rule did not toll the statute. In reviewing an entry of summary judgment

[t]his court may disturb the order of the trial court only where there has been an error of law. This Court applies the same standard as the trial court, affirming a grant of summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In deciding whether summary judgment should have been granted, this Court must examine the record in the light most favorable to the non-moving party.

Jenkins v. Bolla, 411 Pa.Super. 119, 123, 600 A.2d 1293, 1295 (1992) (citations omitted).

The discovery rule and its application in Pennsylvania to a motion for summary judgment is as follows:

It is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed period. Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963). “Thus, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983).
Generally, once the prescribed statutory period has expired, the complaining party is barred from bringing suit. The “discovery rule,” however, is an exception to that rule, and its application tolls the running of the statute of limitations. The “discovery rule” provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible. Schaffer [410 Pa.] at 406, 189 A.2d at 270. The “discovery rule” arises from the inability of the injured party, despite the exercise of reasonable diligence, to know of the injury or its cause. Pocono [503 Pa.] at 85, 468 A.2d at 471. Its purpose is to exclude the period of time during which the injured party is reasonably unaware that an injury has been sustained so that people in that class have essentially the same rights as those who suffer an immediately ascertainable injury. Pounds v. Lehman, 384 Pa.Super. 358, 363, 558 A.2d 872, 874 (1989).
Whether the statute has run on a claim is usually a question of law for the trial judge, but where the issue involves a factual determination, the determination is for the jury. Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 142, 153 A.2d 477, 481 (1959). Specifically, the point at which the complaining party should reasonably be aware that he has suffered an injury is generally an issue of fact to be determined by the jury; only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitations period be determined as a matter of law. Sadtler v. Jackson-Cross Co., 402 Pa.Super. 492, 501, 587 A.2d 727, 732 (1991).

Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324-25, 608 A.2d 1040, 1042-43 (1992).

The question in this case concerns the reasonableness of Mr. Szpynda’s belief that his injuries were caused by the original industrial accident, and not subsequent medical treatment. If Mr. Szpynda reasonably believed that the problems with his hand were due entirely to his accident, then the discovery rule should toll the statute of limitations as he claims. If, however, any diligent person in his position would have investigated to see if subsequent medical treatment was the culprit, then his action would be time barred. “[0]nce the patient is aware or should reasonably have become aware that medical treatment is causing him personal injury the statute begins.” Bickford v. Joson, 368 Pa.Super. 211, 218, 533 A.2d 1029, 1032 (1987) (quoting DeMartino v. Albert Einstein Medical Center, 313 Pa.Super. 492, 501, 460 A.2d 295, 300 (1983)) (emphasis added), alloc. denied, 518 Pa. 647, 544 A.2d 959 (1988). We must disagree with the trial court’s conclusion that the record clearly establishes that Mr. Szpynda knew or should have known that his injury was caused by Dr. Pyles’s medical treatment, and not the accident with the splicing machine.

Causation, especially in medical matters, can be a problematic concept. Some causal relationships are so well established that we cannot excuse a plaintiff who pleads ignorance. For instance, when a plaintiff who knowingly worked with asbestos develops lung cancer, he cannot wait six years until somebody informs him that the asbestos exposure may have caused his cancer to bring an action. We may charge him with the now common knowledge that asbestos is a carcinogen. See Ingenito v. AC & S, Inc., 430 Pa.Super. 129, 633 A.2d 1172 (1993). But when the cause of an injury cannot reasonably be discovered, the injured party has no basis for bringing a tort action. We agree with the trial court that a malpractice plaintiff need not be aware that the medical treatment responsible for his condition was negligent in order to start the statute. See trial court opinion, 3/9/93 at 7 (citing DeMartino v. Albert Einstein Medical Center, 313 Pa.Super. 492, 460 A.2d 295 (1983)); see also Bickford, supra, 368 Pa.Super. at 219-20, 533 A.2d at 1033. But a plaintiff must be reasonably aware that it was the treatment, and not the accident being treated, that caused him injury. DeMartino, supra, 313 Pa.Super. at 501, 460 A.2d at 300.

In the present case, Mr. Szpynda knew the nature and extent of his injury by 1988. He knew that his left hand had been crushed, that Dr. Pyles had operated on it unsuccessfully, and that it now was beyond repair. From his medical records, Mr. Szpynda would have known that he had lost the use of his hand due to poor blood flow, caused by damage to his ulnar artery. We cannot agree with the trial court that this knowledge must have put Mr. Szpynda on notice that his injury was caused by Dr. Pyles’s negligent treatment, and not by the splicing machine accident.

Not all medical treatment is successful. Just because Dr. Pyles’s operation and treatment could not save the hand does not imply that it must have caused or exacerbated the injury. We see nothing in the record, nor can the malpractice defendants point to anything, which would have informed Mr. Szpynda that his poor ulnar artery blood flow was caused by Dr. Pyles’s operation, and not the industrial accident which severed that artery. Mr. Szpynda’s medical records are replete with detailed, technical physiological descriptions of his mangled left forearm. Yet nowhere do his records indicate or even suggest that Dr. Pyles’s surgery caused the loss of blood flow to his hand. It is not enough that a physician be able to deduce from these records, as Dr. Ecker apparently did, that Mr. Szpynda lost the use of his hand due to botched surgery. The discovery rule tolls the statute of limitations until such time as a reasonably intelligent person (not an expert), exercising due diligence, should have some reason to suspect that his injury might have been caused by medical treatment. To hold otherwise would require that whenever any medical treatment fails to promptly return the patient to full health, the patient must necessarily hire attorneys and experts to investigate the possibility of malpractice, lest the statute run. Such wasteful over-abundance of caution is not the goal of our statute of limitations.

Causation is an inherently factual issue; determining causes involves making inductive generalizations from experience. This is why the point at which a reasonable plaintiff can be expected to know the cause of his injury is a question of fact. In order to avoid prejudicing a plaintiff by looking at the discovery rule issue from the perspective of expert hindsight, we ordinarily leave the question of its application to a jury. Only in clear cases where no two reasonable minds could differ do we decide this causation question as a matter of law. See Sadtler v. Jackson-Cross Co., 402 Pa.Super. 492, 501, 587 A.2d 727, 732 (1991). We think that in the present case, the record is by no means clear enough to support the trial court’s conclusion that Mr. Szpynda must have known that the cause of his injury was Dr. Pyles’s operation, and not the splicing machine accident. The granting of summary judgment was therefore improper.

The order granting summary judgment in favor of defendants is vacated, and this case is remanded for further proceedings. We relinquish jurisdiction.

HUDOCK, J., dissents.

HUDOCK, Judge,

dissenting:

I respectfully dissent. Although I agree with the majority’s statement of the law, I disagree with the application of the law to the specific facts of this case. After a review of the record, I agree with the trial court that Appellant knew or should have known that his injury was caused by Appellee rather than from his original work injury. Therefore, I must disagree with the majority’s holding that the discovery rule operates to toll the statute of limitations in this case.

      . This was the first time anyone told Mr. Szpynda that his injury might be due to something other than the original accident.