author: CAVANAUGH, Judge: SPAETH, Judge,

text:
    452 A.2d 243
    COMMONWEALTH of Pennsylvania, v. Frank ARENELLA, Appellant. COMMONWEALTH of Pennsylvania, v. Bruce HUNSINGER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 10, 1980.
    Filed Sept. 24, 1982.
    Reargument Denied Nov. 30, 1982.

      Alan Ellis, State College, for Arenella, appellant.
    Robert C. Fogelnest, Philadelphia, for Hunsinger, appellant.
    Gailey C. Keller, District Attorney, Bloomsburg, for Commonwealth appellee.

      Before SPAETH, HESTER and CAVANAUGH, JJ.
   CAVANAUGH, Judge:

These two appeals are from judgments of sentence for possession with intent to deliver or delivery of marijuana in violation of The Controlled Substance, Drug, Device and Cosmetic Act, Act of ■ April 14, 1972, P.L. 233, No. 64, § 13(a)(30), as amended, 35 P.S. § 780-113(a)(30). Appellant Frank Arenella was convicted of one count; appellant Bruce Hunsinger of two counts. Their activities and their trials, in each case before a jury, were separate. However, their arrests resulted from the same undercover investigation of drug dealing in the Bloomsburg area, and the principal witnesses for the Commonwealth were the same in each case. In addition, various pre-trial proceedings in each case, as well as in other cases resulting from the same investigation, were consolidated, and the testimony of an expert witness who testified at the sentencing proceeding was before the lower court in each of these cases. We therefore ordered the two appeals consolidated. Appellants make numerous arguments in support of their motions for a new trial; several of these have merit and warrant consideration by this Court. For the following reasons, we conclude that these cases must be remanded.

We first address the argument raised by both appellants that the lower court should have granted their applications for an independent expert examination of the substances in question. Well before trial appellants filed applications for discovery. Arenella’s application read in relevant part:

3. The prosecution will attempt to prove that the substance or substances were, in fact, a controlled substance or substances through expert testimony of a Pennsylvania State Police chemist, who allegedly tested said substance or substances.
4. Without a representative sample or samples of the alleged substance or substances, Defendant does not have the means to determine, independently, whether the substance or substances, are, in fact, a controlled substance or substances, as said information is in the exclusive control of the Commonwealth.
5. Defendant requests that the Court order the Commonwealth to provide his attorney with a representative sample of the alleged controlled substance or substances tested in connection with this case in order that he may have an independent analysis performed on the same.
6. Refusal of the relief sought would deny Defendant his constitutional rights to compulsory process for obtaining witnesses in his favor and due process of law under the 6th and 14th Amendments to the United States Constitution and the applicable provisions of the Pennsylvania Constitution.

The equivalent paragraphs of Hunsinger’s application were virtually identical. The lower court denied both applications. In their post-verdict motions appellants assigned the refusal of discovery as error. In denying the motions, the lower court held that under (the then effective) Pennsylvania Rule of Criminal Procedure 310 it had no authority to order the requested discovery unless appellants showed “exceptional circumstances and compelling reasons,” which, the court said, they had not done.

We have found no controlling Pennsylvania appellate court decision on the right of an accused, in a narcotics prosecution, to have an independent expert examination of the substances in question. Indeed this Court evenly divided on this question in Commonwealth v. Dorsey, 266 Pa.Super. 442, 405 A.2d 516 (1979), and that opinion, therefore, lacks precedential force. We are persuaded, however, by the reasoning set forth in the opinion in support of reversal in that case, that such independent testing should be granted. In that opinion, Judge Spaeth found the “exceptional circumstances and compelling reasons” requirement of Pa.R. Crim.P. 310 satisfied by defendant’s request to have his expert test the substances alleged by the prosecution to be heroin:

it is most “exceptional” when the Commonwealth asks a defendant to accept the word of one of its witnesses— which was the practical effect of what was done here; and the reasons for seeking an independent examination and test, as the only way to impeach that witness, are most “compelling” when the substance in question is the entire case—if the substance was not heroin, there is no case.

266 Pa.Super. at 454, 405 A.2d at 522. Other jurisdictions presented with the same issue have likewise granted an accused the right to independently test alleged substances. For example, the Supreme Court of Mississippi has said:

The guilt or innocence, prison sentence or acquittal, of the defendant depends entirely upon the identification of the contents of the boxes as marijuana. This substance was relevant, material, competent and, in fact, necessary evidence to defendant’s conviction. Under this circumstance we are of the opinion that due process of law requires, upon the court’s attention being directed thereto by motion, that the analysis of the substance not be left totally within the province of the state chemist.

Jackson v. State, 243 So.2d 396, 398 (Miss.1970). See also United States v. Kelly, 420 F.2d 26 (2d Cir.1969); United States v. Acarino, 270 F.Supp. 526 (E.D.N.Y.1967); Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973); People v. Taylor, 54 Ill.App.3d 454, 12 Ill.Dec. 76, 369 N.E.2d 573 (1977); State v. Migliore, 261 La. 722, 260 So.2d 682 (1972); People v. White, 40 N.Y.2d 797, 390 N.Y.S.2d 405, 358 N.E.2d 1031 (1976); State v. Gaddis, 530 S.W.2d 64 (Tenn.1975); State v. Stephens, 529 S.W.2d 712 (Tenn.1975); Detmering v. State, 481 S.W.2d 863 (Tex.Cr.App.1972). In some of these cases a rule of criminal procedure has been involved but in construing the rule the courts have typically engaged in a due process analysis. E.g., State v. Gaddis, supra; State v. Migliore, supra.

We, therefore, hold that a fair application of Rule 310 and reasoned authority require the grant of appellants’ applications for an independent expert examination of the substances in question. The lower court committed error when it determined that appellants had not shown “exceptional circumstances and compelling reasons” in support of their discovery request. It is clear that the court, by its action, may have severely limited the presentation of appellants’ defense. We cannot conclude, however, that the court’s ruling necessarily had a deleterious effect on appellants’ defense strategy, thereby mandating a new trial.

A fundamental principle of appellate review is that a judgment, order or decree will not be disturbed if there is only harmless error. Paley v. Trautman, 317 Pa. 589, 177 A. 819 (1935); Campbell v. Commonwealth of Pennsylvania Department of Environmental Resources, 39 Pa.Cmwlth. 624, 396 A.2d 870 (1979); 9 Standard Pa. Practice Ch. 40, § 190; 2 P.L.E. Appeals § 461 et seq. In the instant case the burden of proving the error harmless is on the Commonwealth. Commonwealth v. Story, 476 Pa. 391, 406 n. 11, 383 A.2d 155, 162 n. 11 (1978).

An independent expert examination of the substances in question may disclose that they are not marijuana. If so, appellants likely would have conducted their defense in a wholly different manner. A new trial must be awarded under these circumstances since the lower court’s erroneous denial of appellants’ applications would not have been harmless. On the other hand, an independent expert examination may confirm that the substances are marijuana and also that the tests employed by the Commonwealth’s experts were unimpeachable. Appellants could hardly then claim that their trial defense was affected by the court’s erroneous ruling; in fact, such a result would place appellants in the exact posture as they found themselves during their trials. Hence, the court’s ruling, although improper, would constitute harmless error and the grant of a new trial would be inappropriate.

Since we are unable, from the present record, to determine what the results of independent testing will be, the grant of a new trial would, at this time, be premature. We would instead remand these cases to the lower court to allow the appellants’ experts to conduct an independent examination of the substances. If the substances are indeed marijuana, we would allow the trial verdict to remain; if they are not, we would grant a new trial.

We find that a remand is required for other reasons as well. The first reason, raised by appellant Arenella, concerns trial counsel’s alleged ineffectiveness for failing to object when a Commonwealth witness testified that he received information that appellant was involved in drug trafficking:

A: I came into the presence of one Frank Arenella, the defendant seated at the table back there, on June 21,1977.
Q. Where was this?
A. At his place of business at Garden City on Route # 11 near Bloomsburg.
Q. What kind of business was it?
A. It was a retail business that sold shrubbery and plants, and items like that.
Q. How did it come about that you met him there?
A. Through information received from his brother, Robert Arenella, and the police force. We received information that the defendant, Frank Arenella, was involved in drug trafficking.
Q. You say police sources?
A. Yes.
Q. What police sources?
A. The Bloomsburg Police Department.

(N.T. 16-17).

This evidence was not only inadmissible, See Commonwealth v. Jensch, 274 Pa.Super. 266, 418 A.2d 399 (1980), it was also elicited from a question which did not ask for such information. The present record does not disclose why trial counsel did not object and we are hard pressed to conceive of a reason for his failure to do so. Nonetheless, since counsel may have had a reasonable basis for not objecting to this improper testimony, we must remand for an evidentiary hearing to determine whether counsel’s omission rendered his representation incompetent. See e.g. Commonwealth v. Corish, 296 Pa.Super. 92, 96, 442 A.2d 311, 314 (1982) (need for evidentiary hearing to dispose of ineffectiveness of counsel claims).

Appellants Arenella and Hunsinger have both presented a second claim which requires exploration at an evidentiary hearing. That concerns their counsel’s ineffectiveness for not objecting to the court’s jury charge regarding the consideration of character evidence. The instruction given in the trial of appellant Arenella was as follows:

The defendant did produce the testimony of two witnesses in his behalf. They were Dr. Percival Roberts and Harriet Hock. These witnesses who were called testified that they have known the defendant and that they were acquainted with others in the community who know the defendant, and accordingly, they are familiar with the defendant’s reputation in the community, and they told you that the defendant’s reputation in the community for honesty and integrity is good, and was good, and that there was nothing they heard which was detrimental to that. It is important that you understand how this type of evidence is to be treated by you as jurors.
If a person has lived a good life and has earned a good reputation in the community among people who know him, the law permits him to avail himself to that reputation as evidence in support of his innocence, once he has been accused of a crime in criminal Court. Now, if the Commonwealth has shown beyond a reasonable doubt that the defendant is guilty to your satisfaction, even though he has had a good reputation, he is not to go free simply because of that reputation. However, evidence of good reputation is substantive evidence and is to be considered by you along with all of the other evidence in the case, and if, when all combined, creates a reasonable doubt, then you are to find the defendant not guilty. Reputation evidence is offered not simply to raise reasonable doubt, but to establish the innocence of the defendant, and if you conclude that he bore such a reputation prior to his arrest in this case, you are to regard it as a fact, like any other, tending to show his innocence.
Now, a distinct issue is not created by this type of testimony, nor is it brought into this case as a mere make-weight. It is to be taken into account with all of the other evidence in the case, and if the whole of the evidence is sufficient in your judgment to raise a reasonable doubt in your mind, then the defendant is entitled to be acquitted. (N.T. 146-148).

We will not quote the precise language of the charge given in the case of appellant Hunsinger because it was substantially the same. It is alleged that appellants were entitled to an instruction that evidence of good character may by itself be sufficient to raise a reasonable doubt and justify an acquittal of the charges. We agree. Commonwealth v. Scott, 496 Pa. 188, 195 n. 1, 436 A.2d 607, 611 n. 1 (1981). The distinction between the instruction given in this case and that approved of in Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026 (1978) is subtle, yet a distinction exists nonetheless. There the court incorporated the following in its instruction concerning reputation evidence: “In some instances [evidence of good reputation] may of itself work an acquital [sic] or create a reasonable doubt.” Id., 480 Pa. at 219, 389 A.2d at 1034. In these cases, the trial court omitted that requisite statement altogether. Accordingly, there is arguable merit to appellants’ claim that their counsel should have objected to the court’s charge. We.cannot, however, say at this time that there may not have been a reasonable basis for counsel’s dereliction. On this question also we direct that an evidentiary hearing be held before the lower court. Commonwealth v. Corish, supra.

In sum, we would remand these cases for two purposes: (1) expert examination by both appellants of the alleged controlled substances, and (2) an evidentiary hearing to dispose of appellants’ ineffectiveness claims as discussed in this opinion. If, following the examination and the eviden-tiary hearing, it is determined that the substances are not marijuana or that counsel’s failure to object was, in either instance, unreasonable, a new trial must be granted. Alternatively, in the event that the results of the examination and the evidentiary hearing obviate the need for a new trial, the present adjudication is without prejudice to the appellate rights of both parties following the lower court’s disposition on remand. We would still, under these circumstances, remand both cases for resentencing because the sentencing court, in imposing fines, failed to comply with 42 Pa.C. S.A. § 9726 which requires a determination that appellants were or would be able to pay those fines. See Commonwealth v. Schwartz, 275 Pa.Super. 112, 418 A.2d 637 (1980).

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

SPAETH, J., files concurring and dissenting opinion.

SPAETH, Judge,

concurring and dissenting:

I concur in the majority’s disposition of these appeals, and join its opinion, except in one respect. I believe that as a result of the lower court’s denial of their request for samples of the alleged marijuana, appellants are entitled to a new trial. I therefore dissent from the majority’s decision to remand for expert examination of the alleged marijuana.

The majority says that “an independent expert examination may confirm that the substances are marijuana and also that the tests employed by the Commonwealth’s experts are unimpeachable. Appellants could hardly then claim that their trial defense was affected by the court’s erroneous ruling; in fact, such a result would place appellants in the exact posture as they found themselves during their trials.” At 246. I submit that this statement is beyond our competence.

At each trial defense counsel vigorously cross-examined the Commonwealth’s expert, trying to cast doubt on the expert’s qualifications and on the validity of the testing procedures employed. Without having had the opportunity to have his own expert test the alleged marijuana, counsel had to conduct the cross-examination more or less in the dark. For example, the reliability of the Commonwealth’s procedures might depend on particular qualities of the material tested, but without his own tests, counsel could not know whether the material had those qualities. As the Supreme Court of Alabama has put it:

To enable one to present his defense fully and effectively, the right of cross-examination, thorough and sifting, must remain inviolate, and to enable the defendant to invoke this right, on motion, he should be furnished a sample of the allegedly prohibited substance that will be offered against him in the trial so that he can have its qualities researched by scientists of his choosing. We think that to deny him this right is to deny him due process[.]
Warren v. State, 292 Ala. 71, 75, 288 So.2d 826, 830 (1973).

It may of course be true that if counsel had had his own tests, his expert would have confirmed that the material was indeed marijuana. But then counsel might have chosen a different strategy, placing less emphasis on cross-examination of the Commonwealth’s expert and more in another area. In any case, I don’t see how we as an appellate court are competent to say that we know that counsel’s strategy could not have been affected by the knowledge that independent tests had confirmed that the alleged marijuana was marijuana.

When the question now before us has been presented to other courts on appeal from a conviction, the result has almost without exception been the grant of a new trial. This was true in the case from which I have just quoted, Warren v. State, supra, as well as in the case quoted by the majority, at 246, Jackson v. State, 243 So.2d 396 (Miss.1970). Of all of the cases cited by the majority, slip op. at 5-6, in only one was the grant of a new trial conditioned on the outcome of independent tests. State v. Gaddis, 530 S.W.2d 64 (Tenn.1975). I find no reason not to follow the majority rule.

I therefore dissent from that part of the majority’s order that conditions the grant of a new trial on the result of the independent tests.

      . We have also reviewed the following issues raised by appellant Arenella and conclude that they lack merit: (1) the lower court erred in overruling appellant’s objection to being formally arraigned and tried on the same day, (2) the jurors were improperly sworn, and (3) the sentencing court failed to adequately state its reasons for imposing sentence in violation of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).
      For the same reasons, we will not address the following claims raised by appellant Hunsinger: (1) the lower court erred in failing to grant a hearing on the issue of after-discovered evidence, (2) a rebuttal witness should not have been permitted to testify as to conversations with appellant regarding drug dealings, (3) the lower court erred in overruling appellant’s objection to being formally arraigned and tried on the same day, (4) the jurors were improperly sworn, and (5) the court erred in denying appellant’s recusal application. Hunsinger’s additional claim that the court erred in denying his motion to subpoena the informant has been waived since appellant has failed to indicate when, if ever, that issue was raised below. Pa.R.A.P. 302, 2117(c)(4).

      . Former Pa.R.Crim.P. 310 read in relevant part:
      Rule 310. Pretrial Discovery and Inspection
      All applications of a defendant for pretrial discovery and inspection shall be made not less than five days prior to the scheduled date of trial. The court may order the attorney for the Commonwealth to permit the defendant or his attorney, and such persons as are necessary to assist him, to inspect and copy or photograph any written confessions and written statements made by the defendant. No other discovery or inspection shall be ordered except upon proof by the defendant, after hearing, of exceptional circumstances and compelling reasons.
      The availability of pre-trial discovery has since been substantially increased. Rule 310 was amended and renumbered Rule 305, effective in cases in which the indictment or information was filed after Jan. 1, 1978. The lower court indicated in its opinions in these cases that under the new rule it would routinely have granted the requested discovery.

      . In his brief, appellant acknowledges that this claim was not raised on post-trial motions when he was represented by new counsel, who is also counsel in this appeal. His failure to do so was apparently due to the absence of the transcribed notes of trial testimony. This fact has not been disputed by the prosecution, nor has the Commonwealth urged that this claim has not been preserved for appellate review. Under these circumstances, we do not find that appellant’s argument has been waived.

      . We consider appellant Arenella’s argument for the same reasons set forth in footnote 3, supra. Appellant Hunsinger’s claim has been raised at the first opportunity since he is now represented by new counsel.

      . In two of the cases cited by the majority, at 246, the proceedings were still at a pre-trial stage, so the question of whether there should be a new trial was not presented. United States v. Acarino, 270 F.Supp. 526 (E.D.N.Y.1967); State v. Migliore, 261 La. 722, 260 So.2d 682 (1972).


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    452 A.2d 249
    In re ESTATE OF Solomon ROSENBLOOM, Deceased. Appeal of Eve Stern STUART.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1981.
    Filed Oct. 22, 1982.

      Edward J. Greene, Pittsburgh, for appellant.
    W. Rodger Moore, Pittsburgh, for appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   WIEAND, Judge:

Where part of a dividend which has been paid by a personal holding company is identified as having been derived from short-term capital gains, is that part of the dividend allocable to principal or income for purposes of trust accounting and distribution? The Orphans’ Court of Allegheny County held that it was allocable to principal. We affirm.

Solomon Rosenbloom died November 16, 1925. He had three children: Estelle R. Weinstock, who has three children; Charles J. Rosenbloom, who died April 1,1973 without children; and Arthur M. Rosenbloom, who died July 21,1979 survived by one child, Eve Stern Stuart. Mrs. Stuart has no children.

Solomon Rosenbloom, by his last will, bequeathed his residuary estate to the trustees of a trust established by Article VII of his will. By the terms of this will, the income from the. residuary trust “shall be paid in equal shares” to the living children of Solomon Rosenbloom “and to the issue of any deceased child or children, such issue to take the share of income which the deceased parent ... would have taken if living.” There is no provision authorizing the trustee to invade the principal. Mellon Bank is the sole surviving trustee. The trust principal includes municipal bonds and short-term investments valued at approximately $1,300,000.00, and shares of the Rosenbloom Securities Corporation valued at $2,426,847.75.

Rosenbloom Securities Corporation is a personal holding company under Section 542 of the Internal Revenue Code. At a meeting of the directors of this corporation on December 19, 1979, the secretary reported that the corporation’s accountants had estimated the corporation would have income of $443,000.00 for the year ending December 31, 1979. This income consisted of dividends of $321,000.00, interest of $46,000.00 and short-term capital gains of approximately $76,000.00. (The actual amount of short-term capital gains was $74,410.88. Of this sum, $33,016.54 represented short-' term gains from the sale of options and $41,394.34 represented short-term gains from the-sale of securities.) The accountants estimated expenses at $65,000.00, leaving a net income of approximately $380,000.00. The minutes of the corporation disclose that the directors of the Rosenbloom Securities Corporation considered the distribution of short-term capital gains as corporate dividends, for they were concerned lest these short-term capital gains be determined to be income under Internal Revenue Code Section 543. Ultimately, on May 7,1980, the directors adopted the following resolution:

“RESOLVED, that a dividend of approximately $145 a share if short term capital gains are included as personal holding company income or $96 a share if such gains are not so included be paid to shareholders of record on December 19,1979, the actual amount of the dividend and the payment date thereof to be determined by the President of the Corporation.
“FURTHER RESOLVED, that the President be authorized to take such action as he may deem necessary or desirable to effectuate the intent of this resolution.”

By a letter dated January 3, 1980, the president of Rosen-bloom Securities Corporation stated that the dividend of $146.50, which was payable December 31, contained approximately $51.33 of short-term capital gains and profits on the sale of stocks and options for securities owned by the corporation, and that the corporation had to pay out the short-term capital gains in order not to be subject to personal holding company penalty tax.

The trustee, upon receipt of the dividend in the amount of $98,887.50 ($146.50 per share on 675 shares), allocated $37,-125.00 to the trust principal ($55.00 per share) and the balance to income which was subsequently distributed to the beneficiaries. This allocation to principal. of $55.00 per share was based on a letter from the accountants for Rosen-bloom Securities Corporation dated January 29,1980 indicating their estimate that the short-term gains of the corporation for the year 1979 would not exceed $55.00 per share.

Objection to this allocation was made to Mellon Bank, Trustee, by Eve Stern Stuart, an income beneficiary. Her position was and is that the entire distribution constituted income in the hands of the trustee and should be distributed to the income beneficiaries.

At the hearing in the court below the parties stipulated that the short-term capital gains of Rosenbloom Securities Corporation for the calendar year 1979 were $74,411. Of the total dividend of $146.50 per share of Rosenbloom Securities Corporation paid for the fourth quarter of 1979, $49.61 per share ($74,411 divided by 1,500 shares outstanding on December 31, 1979), was attributable to the short-term capital gains of Rosenbloom Securities Corporation.

The appellant income beneficiary emphasizes that Rosen-bloom Securities Corporation is an investment business whose profits are derived both from income and capital gains. It is argued, therefore, that dividends paid by the corporation, even though derived from capital gains, should be treated as income under Section 8105(a) of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 8105(a). The appellee contends, however, that allocation must be determined from the source of the distribution, i.e., whether, in substance, the dividend is derived from income or is an enhancement in the value of the principal invested. Because the corporation designated a part of the dividend as having been derived from capital, appellee argues that that part must be allocated to principal under the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 8105(c).

Section 8105(a) of the Code provides in pertinent part as follows:

“.. . Except as provided ... in other subsections of this section all dividends payable otherwise than in shares of the distributing corporation, including ordinary and extraordinary cash dividends ... shall be deemed income ... . ”

However, Section 8105(c) provides:

“.. . All disbursements of corporate assets to the stockholders, whenever made, which are designated by the corporation as a return of capital or division of corporate property, shall be deemed principal .. . . ”

Rosenbloom Securities Corporation is a personal holding corporation, incorporated under laws of the State of Delaware, and is engaged in the business of buying, holding and selling securities. With respect to the business in which it is engaged, it is similar to an investment company.

In Brock Estate, 420 Pa. 454, 218 A.2d 281 (1966), an open end investment company (commonly called a, mutual fund), whose business was to buy, hold and sell corporate stocks and securities, had made a quarterly distribution of 7 cents per share from ordinary net income and 8 cents per share payable from realized capital gains. The trustees of the Brock residuary estate had allocated the entire distribution to income. The court sustained objections and decreed that the distribution from “realized capital gains” should be allocated to principal. The Supreme Court affirmed, holding that Section 5(3) of the Principal and Income Act of 1947 (now Section 8105(3) of the Probate, Estates and Fiduciaries Act) commanded that profit from capital gains be allocated to principal.

This decision is determinative of the instant appeal. Although we agree with appellant that for other purposes there are distinctions between investment companies and personal holding companies, those distinctions do not warrant our disregarding the precedent set by the Supreme Court in Brock Estate, supra. There, as here, the issue was the allocation of that portion of a dividend which had been designated as a return of capital by a corporation engaged in the business of buying, holding and selling corporate stocks and other securities. We perceive no substantive reason for distinguishing the holding of that case and refusing to apply Section 8105(c) of the Probate, Estate and Fiduciaries Act to the facts of the instant matter. Rather, we agree with the court below that where, as here, a personal holding company “in fact realizes capital gains and makes a distribution thereof, in whole or in part, to its stockholders, clearly informing them that a specified amount of such distribution is a payment from realized capital gains, or some equivalent expression indicating that the corporation is making a return of capital, such disbursement must be deemed principal for fiduciary accounting and distribution purposes.”

Appellant argues that by refusing to allocate to income the dividend declared by the corporation we are (1) attributing to the holding company a violation of Delaware law which requires that dividends be declared from surplus and (2) improperly piercing the corporate veil by refusing to recognize the corporation as an entity separate and apart from the trust. There is no merit in these arguments.

The issue in this appeal concerns the allocation by a Pennsylvania trust of dividends declared by a personal holding company. This must be determined according to Pennsylvania law. The legislature in Pennsylvania has determined that for purposes of trust allocation a dividend designated by the corporation as a return of capital or division of corporate property shall be deemed principal. The legislative directive is controlling, not the law of Delaware which governs the source of the assets used to pay dividends. In so holding, we do not intend to suggest that a personal holding company’s declaration of a dividend under the circumstances of this case is a violation of the Delaware proscription against paying dividends from sources other than surplus. That is an issue which is not before us, and with respect thereto we express no opinion.

It is also clear that a trust allocation of dividends in accord with Brock Estate, supra, and Section 8105(c) of the Probate, Estate and Fiduciaries Code did not “pierce the corporate veil” or disregard the separate identity of Rosen-bloom Securities Corporation. Indeed, the allocation made by the court below acknowledged the existence of a separate corporate identity and merely sought to determine the allocation of dividends which it had made.

We recognize that whether to allocate to principal or income under the circumstances of this case is controversial and that there are substantial arguments for allocating to income all profits derived by an investment company, whether derived from income or capital gains. In view of the decision in Brock Estate, supra, which we deem controlling, those arguments might better be directed to the legislature. It can determine clearly, by appropriate statutory amendment, whether dividends declared by an investment business, which derives profits from both income and capital gains, should be allocated to income for purposes of trust accounting and distribution.

Judgment affirmed.

      . There is no dispute about the allocation of the balance of the dividend to income.

      . Regarding the distinction between a holding company and an investment company, See: Aldred Investment Trust v. Securities and Exchange Commission, 151 F.2d 254, 260 (1st Cir.), cert. denied, 326 U.S. 795, 66 S.Ct. 486, 90 L.Ed. 483 (1945).


author: CERCONE, President Judge:

text:
    452 A.2d 253
    COMMONWEALTH of Pennsylvania v. Attila J. PRISZNYAK, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 13, 1980.
    Filed Oct. 29, 1982.

      Nathan Criste, Doylestown, for appellant.

      William Platt, District Attorney, Allentown, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and LIPEZ, JJ.
   CERCONE, President Judge:

This is a direct appeal from judgment of sentence. Appellant was convicted by a jury of two counts of reckless endangerment, two counts of criminal conspiracy, two counts of possession of a controlled substance, two counts of possession with intent to deliver a controlled substance, and two counts of delivery of a controlled substance, and sundry summary offenses. He was acquitted of two counts of aggravated assault. Appellant filed timely post-verdict motions. No transcript of the notes of testimony was requested, nor one made. Appellant’s counsel did not file a brief, nor did he timely appear at argument on the post-verdict motions. On motion' of the Commonwealth the court dismissed appellant’s post-verdict motions because of his failure to brief or argue the issues raised in his post-verdict motions. Appellant was sentenced to the payment of fines and the costs of prosecution as well as various terms of imprisonment (some consecutive and some concurrent) for an aggregate sentence of nine to eighteen years. A motion for reconsideration was timely filed and denied. This appeal followed.

Appellant raises numerous issues on appeal. We need address only two of them. First, appellant contends that the lower court erred where it denied his post-verdict motions without considering their merits because of his failure to file a brief or to appear at oral argument. The lower court’s order dismissing the post-verdict motions recites that it did so upon the Commonwealth’s motion and based upon appellant’s failure to brief his post-verdict motions or appear at the time of argument. The lower court’s Rule 1925 memorandum opinion states that the basis for this order was Lehigh County Common Pleas Court local rule 211. As we said in the case of Commonwealth v. Dessue, 262 Pa. Superior Ct. 443, 396 A.2d 1254 (1978), failure to comply with local rules concerning the briefing of post-verdict motions will result in waiver of issues for appeal purposes. See also, Schneider v. Albert Einstein Medical Center, 257 Pa. Superior Ct. 348, 390 A.2d 1271 (1978); Straff v. Nationwide Mutual Fire Ins. Co., 230 Pa. Superior Ct. 403, 326 A.2d 586 (1974). Appellant now contends that this dismissal was either an abuse of the lower court’s discretion or a misconstruction of the local rule by the court. The application, construction, and interpretation of a local rule of court are matters primarily to be determined by the court promulgating the local rule and we will interfere only where the court commits an abuse of discretion. See McFadden v. Pennzoil Co., 326 Pa. 277, 191 A. 584 (1937); Commonwealth v. Morgan, 280 Pa. 67, 124 A. 339 (1924). Cf. Caples v. Klugman, 202 Pa. Superior Ct. 517, 198 A.2d 342 (1964). The rule clearly permitted the court to dismiss the post-verdict motions if it thought it appropriate to do so. We do not find it an abuse of discretion for the lower court to have dismissed the post-verdict motions where appellant (by his counsel) has neither briefed the motions nor appeared at the time of argument. In summary, the lower court did not err in denying appellant’s post-verdict motions. All issues raised therein were waived by appellant’s failure to brief or argue the post-verdict motions. Accordingly we need not address the merits of any of the issues raised in appellant’s post-verdict motions.

We are not disposed of the instant appeal however. Appellant now argues that his counsel was ineffective for failing to file his brief timely and for failing to appear timely at argument. This ineffectiveness argument is raised on appeal by the same counsel who represented appellant at the post-verdict motions stage of the case. Of course, counsel may raise his own ineffectiveness and will be permitted to argue the same on appeal if he has preserved the issue properly by raising it at the first available time, and if the ineffectiveness is apparent on the fact of the record. See Commonwealth v. Drake, 489 Pa. 541, 414 A.2d 1023 (1980); Commonwealth v. Glasco, 481 Pa. 490, 393 A.2d 11 (1978); Commonwealth v. McNeal, 261 Pa. Superior Ct. 332, 396 A.2d 424 (1978); Commonwealth v. Matt, 249 Pa. Superior Ct. 98, 375 A.2d 777 (1977). However, where counsel’s ineffectiveness is not apparent on the fact of the record the case should be remanded for appointment of new counsel and an evidentiary hearing. This being the first opportunity counsel has had to raise his own ineffectiveness, the issue is properly preserved. But, the record before us contains nothing on which we may base a decision on the claimed ineffectiveness of counsel. We are therefore constrained to remand the case to the lower court for an evidentiary hearing on the question.

Judgment of sentence vacated, and case remanded for evidentiary hearing on ineffectiveness claim and appointment of new counsel. If the court finds no ineffectiveness it shall reinstate the judgment of sentence. If it finds counsel was ineffective it shall fashion an appropriate remedy. Jurisdiction relinquished.

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 903.

      . Act of April 14, 1972, P.L. 233, No. 64, § 13, as amended by the Act of October 26, 1972, P.L. 1048, No. 263, § 1 and by the Act of December 30, 1974, P.L. 1041, No. 340; 35 P.S. § 780-113.

      . Id.

      . Id.

      . 18 Pa.C.S. § 2702.

      . Subsequent to taking the instant appeal appellant requested and the lower court ordered transcription of the notes of testimony.

      . See Pa.R.A.P. 1925.

      . Lehigh County Court of Common Pleas Rule 211(f) reads in pertinent part:
      Failure of a party to comply with the requirements of this Rule pertaining to filing ... briefs shall constitute a default for which the court shall impose sanctions, including, where appropriate, dismissal of the motion, preliminary objection or other matter which is the subject of the argument.

      . Present counsel took over appellant’s defense at the pre-trial stage after original counsel was permitted to withdraw.


author: PRICE, Judge:

text:
    452 A.2d 255
    John S. LONG, Appellant, v. Joyce M. LONG.
    Superior Court of Pennsylvania.
    Argued April 16, 1980.
    Filed Oct. 29, 1982.

      Robert N. Clarke, Washington, for appellant.
    Roger G. Rulong, Jr., Washington, for appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   PRICE, Judge:

This is an appeal from'a summary judgment entered in an equity action on grounds of collateral estoppel by reason of a prior criminal support proceeding. We reverse and remand.

The appellant, John S. Long and appellee, Joyce M. Long were married on July 6, 1963 and three children were born to them. (R. 7a). On November 23, 1976, Mr. and Mrs. Long entered into an agreement regarding separation, division of property, custody of the children, support and other attendant items. (R. 7a-16a).

A criminal desertion and non-support proceeding instituted by Mrs. Long as the prosecutrix in the name of the Commonwealth against Mr. Long, came on for hearing on April 24, 1978 and an order was entered thereon on May 4, 1978, the Honorable Charles G. Sweet, President Judge, presiding. The court noted that there was some dispute as to Mrs. Long’s performance of the 1976 agreement, but, taking all things into consideration, held that the support agreed to therein was reasonable and ordered Mr. Long to pay that amount.

On June 22, 1978, Mr. Long filed an action in equity against Mrs. Long claiming breach of the 1976 agreement, that the remedy at law was inadequate and seeking recission. (R. 3a-5a). On January 29, 1979, the court below ordered the equity complaint heard on the next desertion and non-support argument day. This order was appropriately challenged below. On May 9, 1979, the court below granted summary judgment for appellee on the grounds that appellant’s equity action was foreclosed by collateral estop-pel by reason of the prior support hearing findings. The court below en banc affirmed. This appeal followed.

Two of the requisites for successful invocation of the collateral estoppel rule are:

(1) A full, fair and adequate opportunity to actually litigate the particular issue involved;
(2) That the determination of any such issue be essential to the disposition of the matter before the court whose judgment is sought to be invoked.

Neither of these requisites are satisfied in this case.

It has been pointed out that the duty of support is “well-nigh absolute.” Commonwealth ex rel. Mickey v. Mickey, 220 Pa. Superior Ct. 39, 42, 280 A.2d 417, 418 (1971). Therefore, Mr. Long’s opportunity in the non-support proceeding was to show only that he either was already paying support or that he should be excused from doing so. A breach of the post-nuptial agreement between Mr. and Mrs. Long was not a defense to the criminal non-support action. Id. Thus, Mr. Long had no full, fair and adequate opportunity to actually litigate any breach of contract by Mrs. Long in the criminal desertion and non-support proceedings.

Pennsylvania has adopted § 68 of the Restatement of Judgment which provides:

When a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is .conclusive between the parties in a subsequent action on a different cause of action.... (emphasis added).

We hold, that any determinations regarding Mrs. Long’s performance or non-performance of her contractual obligations to Mr. Long made in the course of the criminal non-support and desertion proceedings were not “essential to the judgment” within the above rule. The issues before the court in the criminal non-support and desertion proceedings were:

(1) Whether the husband had separated himself from his wife and children without reasonable cause or had willfully neglected to maintain his wife or child.
(2) If either of the above, then what amount was reasonable and proper for the comfortable support and maintenance of the said wife or children or both.

18 Pa.C.S.A. § 4322. Since Mrs. Long’s breaches of contract, if any, were neither a defense to the non-support action, Mickey, supra, nor presentable by way of counterclaim, determinations regarding such breaches, if any, were not essential to the judgment within § 68 of the Restatement of Judgments.

Since there was no full, fair and adequate opportunity to litigate the issue in the earlier forum, and since any determinations regarding Mrs. Long’s breaches of contract made in the desertion and non-support proceedings were not “essential to the judgment” within the meaning of § 68 of the Restatement of Judgments, collateral estoppel was inappropriately invoked by the court below.

The action of the trial court is reversed and the matter remanded for proceedings consistent with this opinion. Jurisdiction is not retained and the parties will have their full rights as to appeal upon conclusion of the further proceedings.

      . Order of May 4, 1978 at 2-3.

      . R. 128a. That equity has jurisdiction to enforce independent contractual covenants notwithstanding such a prior court order was decided in Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981).

      . Schubach v. Silver, 461 Pa. 366, 379, 336 A.2d 328, 334 (1975); see generally, Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980).

      . Restatement of Judgments, § 68 (1942), adopted by the Pennsylvania Supreme Court in Schubach, supra.

      . See, e.g., Schubach, supra n. 6.

      . A postnuptial agreement may not be enforced even under the Pennsylvania Civil Procedural Support Law. See, Commonwealth ex rel. Kunkin v. Bruck, 297 Pa.Superior Ct. 410, 443 A.2d 1187 (1982); Commonwealth ex rel. Jones v. Jones, 216 Pa.Superior Ct. 1, 260 A.2d 809 (1969).


text:
    452 A.2d 257
    Robert D. WILSON and Carolyn W. Wilson, his wife, Appellants v. CENTRAL PENN INDUSTRIES, INC., a Pennsylvania corporation.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1981.
    Filed Oct. 29, 1982.

      David A. Johnston, Harrisburg, for appellants.
    Walter W. Wilt, Harrisburg, for appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

In this appeal we are required to construe Section 25(a) of the Act of July 9, 1976, P.L. 586, No. 142, effective June 27, 1978, and determine whether it was intended to reduce the two year limitation established by the Judicial Code, 42 Pa.C.S.A. § 5524, for the commencement of an action for trespass to real estate. The trial court held that the statute of limitations had been so reduced and granted a motion for summary judgment which dismissed an action for blasting damages which had occurred less than 23 months prior to commencement of the action. We reverse.

When we review the entry of summary judgment, we view the pleadings, depositions and affidavits of record in the light most favorable to appellants, the non-moving parties. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 469 (1979); Aimco Imports, Ltd. v. Industrial Valley Bank and Trust Co., 291 Pa.Super. 233, 236, 435 A.2d 884, 885 (1981); Taylor v. Tukanowicz, 290 Pa.Super. 581, 586, 435 A.2d 181, 183 (1981). Thus, in the instant case it appears that the residence of Robert and Carolyn Wilson in Susquehanna Township, Dauphin County, as well as their water and septic systems, were damaged by blasting operations carried on between September 28, 1977 and November 9, 1977. The blasting had been done by Central Penn Industries, Inc. during the course of road construction performed under a contract with PennDOT. An action in trespass to recover damages was commenced by praecipe for writ of summons filed on August 28, 1979, less than two years after the blasting damages had occurred. After the pleadings had been closed and discovery completed, Central Penn Industries filed a motion for summary judgment. This motion relied upon Section 25(a) of the Act of July 9, 1976. Appellee contended that the Wilsons’ action was barred because it had been commenced more than one year following the statute’s effective date of June 27, 1978. The trial court accepted this argument and entered judgment in favor of Central Penn Industries. The Wilsons appealed.

Prior to enactment of the Judicial Code in Pennsylvania, the statute of limitations pertaining to actions for trespass to real estate had been six years. The period was reduced to two years by Section 5524 of the Judiciary Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. § 5524, effective June 27, 1978. However, Section 25(a) of the Act, which appears in the note following 42 Pa.C.S.A. § 5524, provides:

(a) Any civil action or proceeding:
(1) the time heretofore limited by statute for the commencement of which is reduced by any provision of this act; and
(2) which is not fully barred by statute on the day prior to the effective date of this act;
may be commenced within one year after the effective date of this act, or within the period heretofore limited by statute, whichever is less, notwithstanding any provisions of Subchapter B of Chapter 55 of Title 42 (relating to civil actions and proceedings) or any other provision of this act providing a shorter limitation.

In determining the legislative intent, the sections of a statute must be read together and construed with reference to the entire statute. In Interest of Jones, 286 Pa.Super. 574, 586, 429 A.2d 671, 677 (1981); Wolfe v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, 24 Pa. Commonwealth Ct. 261, 265, 355 A.2d 600, 602 (1976); Commonwealth of Pennsylvania, Insurance Department v. Adrid, 24 Pa. Commonwealth Ct. 270, 275, 355 A.2d 597, 599 (1976); 1 Pa.C.S.A. § 1922. A construction which fails to give effect to all provisions of a statute or which achieves an absurd or unreasonable result must be avoided. In Interest of Jones, supra; Valley Forge Industries, Inc. v. Armand Construction, Inc., 38 Pa. Commonwealth Ct. 603, 606, 394 A.2d 677, 678 (1978); 1 Pa.C. S.A. §§ 1921, 1922.

These principles are helpful in construing the statutory provisions being examined instantly. They suggest that with respect to an action for trespass to real estate the legislature intended to create a two year statute of limitations. It would be unreasonable, perhaps even absurd, for the legislature to reduce this two year period for causes of action which had arisen within two years of the statute’s effective date. This is particularly so where, as here, the prior statute of limitations had been six years.

A more reasonable construction is to limit the application of Section 25(a) to those causes of action which accrued within six years prior to June 27, 1978 and which would otherwise be barred by the shortened statute of limitations contained in the Judicial Code. It is also applicable where the two year period of limitations created by the Judicial Code would expire prior to June 27, 1979. It is a “relief provision” whose effect is restricted to those situations where the period of limitation under the Judicial Code is shorter than the one year grace period contained in Section 25(a). This is the interpretation suggested by the P.B.A. Judicial Code Explanation appearing at 42 Pa.C.S.A. XVII-XVIII (Purdons, 1981).

This interpretation is also consistent with prior decisions of this Court. See: Tenny v. Dauphin Deposit Bank and Trust Co., 302 Pa.Super. 342, 348-350, 448 A.2d 1073, 1076-1077 (1982); Crisante v. J.H. Beers, Inc., 297 Pa.Super. 337, 342, 443 A.2d 1150, 1153 (1982); Brown v. Cooney, 296 Pa.Super. 117, 118, 442 A.2d 324, 325 (1982); Tioga Coal Co. v. Supermarkets General Corp., 289 Pa. Super. 344, 349 n. 6, 433 A.2d 483, 485 n. 6 (1981).

“ ‘[WJhile the legislature may shorten the time in which suits to enforce existing rights of action may be commenced, a reasonable time must be given by the new law for the commencement of suit before the bar takes effect.’ Hence the Pennsylvania Legislature included in the Judicial Code a ‘savings clause’ when it enacted the new statute of limitations provisions.” Crisante v. J.H. Beers, Inc., supra, 297 Pa.Super. at 342, 443 A.2d at 1153, quoting Ferki v. Frantz’s Transfer Co., 152 Pa.Super. 267, 269, 31 A.2d 586, 587-588 (1943). Section 25(a) created a one year grace period terminating June 27, 1979. It did not preclude the bringing of later actions not barred by the two year statute of limitations contained in 42 Pa.C.S.A. § 5524; it did not sooner bar actions otherwise permitted within the time constraints of the general statute of limitations.

It follows that appellants’ action was timely commenced, and the trial court erred in entering summary judgment for the appellee.

Reversed and remanded.

      . This section appears in the note following 42 Pa.C.S.A. § 5524.

      . 42 Pa.C.S.A. § 5524 provides:
      § 5524. Two year limitation
      The following actions and proceedings must be commenced within two years:
      (1) An action for assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process.
      (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.
      (3) An action for taking, detaining or injuring personal property, including actions for specific recovery thereof.
      (4) An action for waste or trespass of real property.
      (5) An action upon a statute for a civil penalty or forfeiture, where the action is given to a government unit.
      (6) An action against any officer of any government unit for the nonpayment of money or the nondelivery of property collected upon on execution or otherwise in his possession.


author: BECK, Judge:

text:
    452 A.2d 260
    COMMONWEALTH of Pennsylvania v. Alfred CARROLL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1982.
    Filed Oct. 29, 1982.

      Howard B. Zavodnick, Philadelphia, for appellant.
    David E. Fritchey, Deputy District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   BECK, Judge:

Appellant, Alfred Carroll, was arrested on December 24, 1980 by Lansdowne police officers. Those officers had responded to a telephone call from an apartment building manager who saw appellant and another man separately charged driving into the parking lot; he recognized neither man. The manager noted that these men remained in the car for several minutes and then walked to the rear of the building. He went downstairs to see what they wanted and observed them standing in front of an apartment; one of them appeared to be jimmying the lock. He then called the police. Meanwhile the two men had gained entrance to Michael Anderson’s apartment. A gun was placed at Anderson’s head, and he was bound and gagged. The two men took cash and personal possessions from Anderson’s apartment. Anderson testified that the two men heard the officers outside his doorway and fled through the kitchen window. The officers apprehended them nearby.

Appellant was convicted by a jury of robbery, burglary and conspiracy. No timely post-trial motions were filed. On June 5,1981, a second attorney who is counsel on appeal petitioned the court to allow the filing of post-trial motions nunc pro tunc. The court denied that petition. Appellant was sentenced to two and one-half to five years incarceration for each offense; all sentences to run concurrently.

Appellant argues that the trial court abused its discretion in refusing to allow him to file post-trial motions nunc pro tunc. Preliminarily, we note that “[ijssues not raised by posttrial motions are waived and therefore may not be raised on direct appeal.... For the waiver to be effective, however, the record must affirmatively demonstrate that the defendant was aware of his right to file post-trial motions and that he intelligently and voluntarily decided not to do so.” Commonwealth v. Williams, 241 Pa.Super. 226, 228-229, 360 A.2d 735, 736 (1976) (citations omitted). The question, therefore, is whether appellant’s waiver was voluntary and intelligent. In examining the waiver, we are guided by Pa.R.Crim.P. 1123(c) which states:

(c) Upon the finding of guilt, the trial judge shall advise the defendant on the record:
(1) of the right to file post-verdict motions and of the right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein;
(2) of the time within which he must do so as set forth in paragraph (a); and
(3) that only the grounds contained in such motions may be raised on appeal.

The record reflects that the trial judge informed appellant of his right to file post-trial motions:

Alfred Carroll, the defendant, after having been found guilty as to all charges, I have to tell you the following rights that you have.
You have the right to file written post-trial motions within ten days of today’s date challenging any proceeding or ruling which occurred for the jury verdict, challenging the conduct of the jury trial, challenging the verdict itself.
If you want to do that, and you cannot afford a lawyer, a lawyer will be provided for your free of charge.
If you file such a motion, you must be specific and in writing, otherwise we pay no attention to it, and your appeal rights will be severely limited and simply limited to the question of whether this Court had jurisdiction, and there is no question in my mind that it did because the offense occurred in Lansdowne, Delaware County.
The remaining right would be whether or not I give you a legal sentence, and I would give you a legal sentence.
Likewise, if you fail to file such motions, under the law you will be deemed to have waived them, given up your rights to challenge or attack any of the things we talked about, either before the trial, during the trial or the verdict itself.

Notes of Testimony (“N.T.”) at 115-116.

Appellant alleges that he did not knowingly waive his right to file post-trial motions, but that claim is not borne out by the record. The trial court’s statement was in full compliance with the requirements of Pa.R.Crim.P. 1123(c), and appellant acknowledged on the record that he understood his rights relating to post-trial motions. This case is not like Williams where the trial court’s statement did not comply with the requirement of 1123(c)(3) that the trial judge inform the defendant “that only the grounds contained in such motions may be raised on appeal.” In the instant case, the trial judge did so inform appellant. The trial judge also informed him of his right to counsel in filing the motions and on appeal and of the ten day time period within which he must file said motions.

Appellant additionally alleges that trial counsel was ineffective for failing to preserve the trial court’s error in refusing appellant’s request for a continuance to secure representation by private counsel.

We find that although appellant failed to file timely posttrial motions, his second attorney raised the above claim at his first opportunity to do so when he filed his Pa.R.A.P. 1925(b) statement alleging the basis for the appeal. We find therefore that this allegation of counsel’s ineffectiveness is properly before us.

Thus we will examine the merits of the foregone issue in the context of appellant’s ineffective assistance of counsel claim. The question then is whether counsel had a reasonable basis for failing to preserve this alleged error. “[W]e will find a ‘reasonable basis’ for inaction if the thing not done had no likelihood of success.” Commonwealth v. Ford, 491 Pa. 586, 594, 421 A.2d 1040, 1044 (1980).

The facts underlying the foregoing claim are as follows. Appellant was represented by an assistant public defender for almost four months before indicating to him at the time of jury selection that he would no longer cooperate with counsel and that he wished to retain a private attorney who had represented him in a prior matter. He informed the court that his family had been in contact with this attorney, and he asked the court to verify the truth of that statement. The trial judge spoke to private counsel who told the judge he had not been contacted in the instant matter and that he was not representing appellant. Sometime later in the trial, the judge received a message in his chambers that private counsel had been contacted by appellant’s family and that he would represent appellant, but not until June 1, 1981; the trial had commenced on May 6,1981. The trial judge told private counsel that he could not postpone the trial until June 1st.

The decision to deny such a continuance is clearly within the discretion of the trial judge:

Generally in determining the question of whether a court abuses its discretion in denying a continuance, an accused’s right to choose a particular counsel, which is not absolute, must be weighed against the public need for the efficient and effective administration of justice.... In determining this issue, each case must be decided by balancing the competing interests. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

Commonwealth v. Kittrell, 285 Pa.Super. 464, 468, 427 A.2d 1380, 1381-1382 (1981) (citation omitted).

Appellant cites Commonwealth v. Flynn, 248 Pa.Super. 62, 374 A.2d 1317 (1977) and Commonwealth v. Ross, 465 Pa. 421, 350 A.2d 836 (1976) in support of the proposition that the trial judge abused his discretion in failing to grant a continuance to allow him to retain counsel of his choice. Those cases are readily distinguishable from the instant matter in that Flynn and Ross both turned upon representation by unprepared lawyers. Both involved public defenders who did not have .sufficient time to prepare their client’s defense. In the instant case, the public defender had represented appellant for almost four months prior to trial and had not been notified until jury selection of his client’s refusal to cooperate. No attempts to secure private counsel were made prior to that time, and appellant’s trial counsel was thoroughly familiar with appellant’s case by the time of trial.

Appellant additionally cites Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978) for the above proposition. The Holzer court premised its decision upon the fact that the Commonwealth would not have been prejudiced by the granting of a continuance. The Holzer court noted that “[w]hen appellant requested the one month continuance, less than two months had passed since his arrest. The Commonwealth would not, therefore, have been in any. appreciable danger of violating appellant’s guarantee of a speedy trial.” Id., 480 Pa. at 105 n. 8, 389 A.2d at 107 n. 8. Contrast Holzer with the situation in the instant case where “June 1, 1981 [the date when private counsel would be prepared for trial], was more than 180 days from the filing of the complaint against defendant.” (Lower court opinion at 8.) Thus, a Pa.R.Crim.P. 1100 dismissal could have resulted from such a delay.

We note also that appellant was ably represented by his public defender. Moreover, we do not condone appellate counsel’s attempt to mislead this Court by alleging that appellant did not cooperate at trial with his public defender. Appellant cooperated with his counsel in presenting an account of the events of December 24, 1980. That account simply was disbelieved by the jurors. The lower court found “that trial counsel vigorously cross-examined the Commonwealth’s witnesses and carefully elicited the defendant’s version of the incident. . .. ” (Lower court opinion at 11.) We agree and find the representation of trial counsel to have been commendable.

We conclude then that the trial judge did not abuse his discretion in declining to grant a continuance. We place great weight upon 1) the fact that appellant had almost five months to contact private counsel during which he failed to do so, 2) the potential prejudice to the Commonwealth’s case and 3) the able representation. afforded appellant by his public defender. Compare Commonwealth v. Andrews, 282 Pa.Super. 115, 136, 422 A.2d 855, 865 (1980) (Spaeth, J., dissenting).

While trial counsel failed to preserve the issue of the denial of a continuance, we conclude that the claim foregone was meritless. The trial judge did not abuse his discretion in declining to grant a continuance, and we find therefore that trial counsel was not ineffective in failing to preserve that issue. We will not find counsel ineffective for failing to raise a meritless claim. E.g., Commonwealth v. Webb, 491 Pa. 329, 421 A.2d 161 (1980).

Judgment of sentence affirmed.

      . Issues not raised in post-verdict motions will not be considered on appeal.... An exception exists, however, when ineffective assistance of prior counsel is raised. In such a case, ineffectiveness of prior counsel must be raised at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents appellant.

        Commonwealth v. Webster, 490 Pa. 322, 325, 416 A.2d 491, 492 (1980) (citation omitted).

      . Our Supreme Court in Commonwealth v. Schroth, 495 Pa. 561, 564, 435 A.2d 148, 149 (1981) enunciated the standard of review in evaluating ineffective assistance claims:
      In considering appellant’s claim of ineffective counsel, we are governed by Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), where we held that a court must independently review the record and examine counsel’s stewardship in light of available alternatives. The inquiry ceases and counsel is deemed to have been effective once the court is able to conclude that counsel’s actions had a reasonable basis designed to effectuate the client’s interests. The test is not whether it appears on hindsight that another course of action would have been more reasonable. Further, counsel is not ineffective in failing to assert a baseless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

      . The lower court, in evaluating trial counsel’s representation, noted:
      The record indicates that the defendant’s trial attorney ... obtained a favorable [Commonwealth v.] Bighum [, 452 Pa. 554, 307 A.2d 255 (1974) ] ruling thus permitting defendant to testify on his own behalf without fear of the introduction of prior convictions. We observed, at trial, that defendant cooperated with said trial attorney in the selection of the jury and the conduct of the trial. Finally, we recall that [trial counsel] made an impressive, thorough closing argument. However, because of the overwhelming evidence, defendant was tried and convicted.
      (Lower court opinion at 8-9.)


author: POPOVICH, Judge:

text:
    452 A.2d 264
    COMMONWEALTH of Pennsylvania v. William F. RYAN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 31, 1982.
    Filed Oct. 29, 1982.
    Petition for Allowance of Appeal Granted March 8, 1983.

      Frederick W. McBrien, Norristown, for appellant.
    Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

On October 16, 1980, appellant, William F. Ryan, was found guilty of criminal attempt and criminal conspiracy for arranging a sale of methamphetamine (speed) in May, 1979. Post-trial motions were timely filed and denied. Thereafter, appellant was sentenced to a period of incarceration of three to ten years. This appeal followed. We reverse.

On appeal, appellant raises numerous allegations of error by the trial court. Because of our view of the case, we need only address appellant’s contention that his right to a speedy trial under Pa.R.Crim.P. 1100 was violated.

To respond to appellant’s contention, we must review in detail the procedural history of the case. On September 19, 1979, an arrest warrant was sworn out against appellant charging him "with criminal attempt, criminal solicitation, criminal conspiracy and a violation of the Controlled Substance, Device and Cosmetic Act. Appellant was arrested on October 1, 1979, and was formally arraigned on November 23, 1979. On or about December 1, 1979, appellant was taken into custody by a member of the Montgomery County Detective’s office and turned over to federal authorities to commence serving a federal prison sentence. Sometime between December 14, 1979, and December 27, 1979, the Commonwealth first learned that the appellant was finally lodged in the Federal Correctional Institution at Petersburg, Virginia.

Appellant’s trial on the Montgomery County charges was scheduled to commence on January 9, 1980. However, it was not until January 23,1980, that the District Attorney of Montgomery County filed a request for temporary custody, under the Interstate Agreement on Detainers Act, with the warden of the Virginia prison. The 180th day from the filing of the complaint was March 17, 1980. On February 26,1980, the Commonwealth filed a petition for extension of time to commence trial on the basis of appellant’s continued incarceration in a federal facility. Appellant filed an answer and new matter to the petition averring a lack of due diligence on behalf of the Commonwealth to effectuate his transfer. By order of March 6, 1980, Judge Smillie granted the Commonwealth’s petition and directed that trial commence no later than September 1, 1980. On May 13, 1980, an offer of temporary custody of appellant was sent to the Montgomery County District Attorney’s office. Appellant’s trial was rescheduled to commence June 9, 1980. On or about June 2, 1980 members of the Montgomery County Detective’s office traveled to Virginia for the purpose of returning appellant to Montgomery County. Upon arriving in Virginia, the detectives were advised that appellant had already been returned to Pennsylvania in connection with a federal matter. According to counsel for appellant, appellant had been taken by the federal authorities to Philadelphia on unrelated federal charges sometime during the end of May, 1980. At that time, and while still in Philadelphia, appellant suffered a heart attack.

As of June 19, 1980, appellant had recovered from his heart attack and was lodged in the Montgomery County Prison. Appellant’s trial had been rescheduled for July 14, 1980. On that date, the Commonwealth made a motion to postpone the trial for one week because a key Commonwealth witness was on vacation. This motion was granted and the trial was rescheduled for July 21,1980. On July 18, 1980, defense counsel filed a motion to dismiss under Rule 1100(f). On July 31, Judge Davenport ordered that any further consideration of appellant’s motion to dismiss be deferred until the time of trial. Trial did not take place on July 21 because the assistant district attorney assigned to the Ryan case had to try another case for which July 21 was the 180th day for Rule 1100. On September 2, September 1 being Labor Day, the Commonwealth filed another petition for extension of time for commencing trial. The appellant filed an answer averring a lack of due diligence on behalf of the Commonwealth. The matter was again scheduled before Judge Smilie and by order of September 11, 1980, the Commonwealth was given an additional 60 days to commence appellant’s trial. Trial did commence on October 7, 1980, at which time the appellant’s motion to dismiss was again raised. After hearing argument on the matter, the trial court denied the motion relying on the well-established principle that, absent some new evidence, it is improper for a trial judge to overrule the interlocutory orders (Judge Smil-lie’s orders of March 6 and September 11) of another judge of the same court in the same case.

Post-trial motions were heard by an en banc panel of the lower court. In denying appellant’s renewed motion based on violation of his Rule 1100 rights, the lower court stated “[T]hat since a member of our bench has already ruled on the merits of this issue, his decision should stand pending appellate review.” Trial Court Opinion at 5. The trial court, when presented with appellant’s pre-trial motion to dismiss, properly ruled that Judge Smillie’s orders were interlocutory and should not be overruled. However, the purpose of this rule is to give finality to determinations of all pre-trial motions. Commonwealth v. Eck, 272 Pa.Super. 406, 408-409, 416 A.2d 520, 522 (1979) (quoting Commonwealth v. Griffin, 257 Pa.Super. 153, 157, 390 A.2d 758, 760 (1978)) (Emphasis added). When the Rule 1100 issue was raised in post-trial motions, the lower court should have decided it. Nevertheless, in the interest of judicial economy, we will address the merits of the Rule 1100 issue.

Under Rule 1100, all periods of delay beyond the mandatory period must be either excluded from the computation under Rule 1100(d) or justified by an order granting an extension under Rule 1100(c), if the Commonwealth is to prevail. Commonwealth v. Shelton, 469 Pa. 8, 14-15, 364 A.2d 694, 697 (1976). Mere incarceration in another jurisdiction does not make the defendant “unavailable” for trial under Rule 1100(d); Commonwealth v. Emmett, 274 Pa.Super. 23, 28, 417 A.2d 1232, 1235 (1979). “Appellant will be considered unavailable only for the period of time during which his presence could not be secured despite due diligence by the Commonwealth.” Id. Appellant contends that both the March 6 and September 11 time extensions were improperly granted.

At the March 6, 1980, hearing on the Commonwealth’s first extension petition, Judge Smillie was apprised of appellant’s continued incarceration in Petersburg, Virginia, and that the Commonwealth had proceeded to effectuate appellant’s transfer within a month of learning of Mr. Ryan’s final place of detention in the federal prison system. Although this action could have been swifter, it can hardly be equated with the situation in Commonwealth v. McCaf-ferty, 242 Pa.Super. 218, 368 A.2d 1239 (1976), where the Commonwealth failed to invoke the procedures under the Interstate Detainer Act or with that presented in Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977), wherein the Commonwealth waited six months to secure the defendant’s return to Pennsylvania. Due diligence under the Rule requires the Commonwealth to make a “reasonable effort,” Commonwealth v. Martofel, 248 Pa. 206, 375 A.2d 60 (1977). See also Commonwealth v. Emmett, supra. We hold that Judge Smillie did not err in granting the March 6 extension. However, for the purpose of determining whether the appellant was brought to trial within 180 days, appellant will be considered available for trial from the time the Commonwealth found out that he was in Petersburg, Virginia until the date it filed the proper detainer request. See Commonwealth v. Goodman, 260 Pa.Super. 266, 279, 393 A.2d 1256, 1263 (1978); Commonwealth v. Kovacs, supra. See also footnote 6, infra.

The Commonwealth filed its second extension petition with the Montgomery County Clerk of Courts on September 2, 1980. On September 3, 1980, the petition was presented to the court and a hearing was set for September 11. Because we find that the evidence presented at the September 11 hearing was insufficient to warrant the granting of an extension, we need not decide whether filing an extension petition with the clerk of courts qualifies as an application to the Court as required by Rule 1100(c)(1). See Commonwealth v. Wharton, 250 Pa.Super. 25, 378 A.2d 434, (1977), (where an extension petition brought before the judge on the last day of the Rule 1100 period was not docketed in the clerk of courts on that day. This Court held that, “the question of timely filing should be decided on whether or not said petition is properly before the lower court prior to the expiration of the mandatory period, not whether or not the petition is docketed in the clerk of court’s office prior to the expiration of the period.” Id., 250 Pa.Superior Ct. at 29, 378 A.2d 437.) See also Commonwealth v. Groarke, 269 Pa.Super. 243, 247, 409 A.2d 870, 872 (1979) (Price, J., dissenting).

At the September 11 hearing, defense counsel allowed the prosecution to summarize the procedural history of the case:

“On the 19th of June we picked him up and he has been in the Montgomery County Prison ever since. Now of course, his trial by this time had been relisted for July 21. We are prepared to show, Your Honor, that on July 21, I was assigned to a trial, the trial of Daniel John Westopher and it was a trial which the 1100 day was July 21. We got the case in on the 180th day. That was the run. It was a one (1) week trial before Judge Davenport. Following that trial we had no court and I began to prepare for a murder trial and I was specially listed for August 18. From August 18 to August 31, every day including Saturdays and Sundays I was trying the case of Commonwealth v. Basile before Judge Davenport. That case came to verdict on a Sunday night, which I believe was the 31st of August. The run date on the Ryan case was the 1st of September. Now, the first of September was Labor Day and I did not come to work that day. I did come to work on Tuesday, which was the first working day and I filed a petition to extend and that was September 1. That is what is before Your Honor now. The petition to extend based on the court’s backlog. Mrs. Strizziere is here to testify and she has testified to the number of Judges that were on this summer, most especially the number of Judges that were sitting and I believe it to be particularly relevant from July 21 until September 1. I have represented to the court and I think Mr. McBrien has stipulated that I was on trial on July 21. And I am representing to the court that that case was a Rule 1100 problem and one I went to on the 21st because the Rule 1100 date was July 21. It had to go to trial that date. After that I was not available until this time and Mr. Tressler would testify to that. He would testify also that there is one case currently on my board and that comes before this case and that as soon as I try the, I believe, it is the Haley and Mitchell, I would be available to try Mr. Ryan’s case. . .. Your Honor, we would consent, if Your Honor is so disposed to have this case ordered to be tried immediately following the one I have on the board now.” (N.T. Sept. 11, 1980, pp. 8, 9, 22).

In the Commonwealth’s petition for extension, it is stated that, “No criminal trials were held in Montgomery County during the weeks of July 28, August 4, and August 11, 1980.” A Montgomery County Court Calendar is attached to the petition.

Although judicial delay can be the basis for an extension, the trial court may grant such an extension

“only upon a record showing; (1) the ‘due diligence’ of the prosecution and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.” Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-1350 (1976).

The scope of review, on appeal, from an order granting a petition to extend requires the appellate court to consider the evidence presented by the Commonwealth and so much of the evidence presented by the defendant as, fairly read in the context of the record as a whole, remains uncontradict-ed. See Commonwealth v. Mitchell, 472 Pa. 553, 564, 372 A.2d 826, 831 (1977). The Commonwealth argues that a record showing of judicial delay has been made because defense counsel stipulated to the prosecution’s summarization of the facts at the extension hearing.

Even if we accept the Commonwealth’s version of the facts, it is obvious that the prosecution failed to show due diligence. The Commonwealth stated that the assistant district attorney assigned to the Ryan case was busy with other trials from July 21-28 and August 18-31, and that an extension was necessary because no criminal trials were held between July 28 and August 18. However, the record shows that Mr. Ryan was available for trial on June 19. When the case was postponed from July 14 to July 21, the district attorney’s office could have reassigned Mr. Ryan’s case to another assistant district attorney. The case could then have been tried during the week of July 21 or sometime between August 18 and September 1. The Commonwealth has the burden by a preponderance of the evidence, of showing that it has met the requirements of Rule 1100(c). Cf. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Mitchell, supra. The facts show that Mr. Ryan was available for trial for more than 10 weeks of the summer of 1980. During three of these weeks appellant could not be tried because of judicial delay. Although the Commonwealth may have been diligent in its attempt to commence appellant’s trial on July 14, a one week postponement of that trial should not have had the effect of forcing appellant to wait before his trial was begun until October 7. Excluding the periods of appellant’s unavailability while in the custody of the federal authorities and while recovering from his heart attack, the days that appellant waited while available for trial number one hundred and ninety-eight from the date of his arrest. Such a result transpired because the lower court’s second extension was for 60 days. The only apparent reason for such a lengthy extension is that the assistant district attorney assigned to the Ryan case had another case to try first. Although unavailability of defense counsel will serve as an exclusion of time under Rule 1100(d)(3)(i), the unavailability of the prosecutor is not listed as an exclusion in determining the period for commencement of trial. On the contrary, the prosecution must demonstrate due diligence in bringing the accused to trial, and, when an extension is granted, trial must be scheduled for the earliest date consistent with the court’s business. Here, neither of these requirements was met.

Accordingly, we reverse the order of the lower court and vacate the judgment of sentence.

      . 18 Pa.C.S.A. § 901.

      . 18 Pa.C.S.A. § 902.

      . 18 Pa.C.S.A. § 903.

      . 35 Pa.C.S.A. § 780-113(a)(30).

      . 42 Pa.C.S.A. § 9101 et seq.

      . This period was calculated by excluding: (a) that period between the filing of the arrest warrant on September 19, 1979 and appellant’s arrest on October 1, 1979; (b) the period from December 1, 1979, when appellant was taken into custody by the federal authorities, to December 27, 1979, when the Commonwealth learned of appellant’s final place of lodging in Petersburg, Virginia. (Appellant contends that the Commonwealth may have known of his whereabouts as early as December 14, 1979. However, there is no need to remand for a factual determination on this point since the 180 day-period is exceeded even when we accept the Commonwealth’s version of the facts.); (c) the period from January 23, 1980, when the Commonwealth requested appellant’s transfer from Virginia to Montgomery County, to June 19, 1980, when appellant was recovered from his heart attack and available for trial. See Rule 1100(d).

      . Although we find that the Mayfield requirements were not met in this case, we note that due diligence may be shown when a prosecutor has a case assigned to him which cannot be rescheduled ahead of other cases which suffer similar Rule 1100 problems. Here, due diligence was not demonstrated since no reason was given by the prosecution as to why another case had to be tried before appellant’s case. See Commonwealth v. Levitt, 287 Pa.Super. 115, 120, 429 A.2d 1126, 1129 (1981); Commonwealth v. Crowley, 281 Pa.Super. 26, 30, 421 A.2d 1129, 1131 (1980).


author: HOFFMAN, Judge:

text:
    452 A.2d 269
    Esther WILLIAMS and Shirley Morris v. PILGRIM LIFE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 10, 1982.
    Filed Oct. 29, 1982.

      Rames J. Bucci, Philadelphia, for appellant.
    Herbert J. Hutton, Philadelphia, for appellees.
    Before CAVANAUGH, CIRILLO, and HOFFMAN, JJ.
   HOFFMAN, Judge:

• Appellant contends that the lower court erred in granting appellees’ motion for summary judgment. Because triable issues of fact remain, we reverse and remand for trial.

On September 21, 1977, appellees, beneficiaries of several life insurance policies issued by appellant, sued to recover additional funds arising from the policies’ double indemnity clauses as a result of the insured’s death by gunshot wound. Upon the parties’ cross-motions for summary judgment, the lower court granted judgment for appellees. This appeal followed.

Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.Civ.P. 1035(b). It is to be entered, however, only in the clearest of cases when no doubt exists as to the absence of a triable issue of fact. Granthum v. Textile Machine Works, 230 Pa.Superior Ct. 199, 326 A.2d 449 (1974).

The three insurance policies at issue provided for double indemnity for the beneficiaries if the insured died from accidental causes. The only evidence offered as to the cause of the insured’s death was a death certificate, stating that he had been “shot during an altercation.” Police investigations revealed no “conclusive results about the surrounding circumstances of the shooting.” (Lower Court Op. at 2) The record indicates, however, that at least one witness, the insured’s brother, could testify as to the circumstances surrounding the insured’s death and that evidence pertaining to the insured’s drunken state may also exist.

Appellant contends that the gunshot wound suffered during the “altercation” precludes double recovery because it falls under the injuries intentionally inflicted, use or influence of any intoxicant and taking part in any altercation exclusions of Policy I and the “committing or attempting to commit an assault or felony” exclusion of Policies II and III. Appellees, however, maintain that the gunshot wound was accidental for Policy I purposes, but claim that the insured died through the criminal activity of another for Policy II and III purposes.

It is often the case that although the basic facts are not in dispute, the parties in good faith may nevertheless disagree about the inferences to be drawn from these facts, what the intention of the parties was as shown by the facts ... Under such circumstances the case is not one to be decided by the Trial Judge on a motion for summary judgment.

Schacter v. Albert, 212 Pa.Superior Ct. 58, 239 A.2d 841, 843 (1968), quoting S.J. Groves & Sons Co. v. Ohio Turnpike Comm., 315 F.2d 235, 237-8 (6th Cir.), cert. denied, 375 U.S. 824, 84 S.Ct. 65, 11 L.Ed.2d 57 (1963).

It is clear from the parties’ contentions that the inferences to be drawn from the bare fact of the insured’s death in an “altercation” are by no means undisputed. Indeed, appel-lees, themselves, have alleged different inferences for different policies. Under these circumstances, we find summary judgment inappropriate and, thus, we reverse the order of the lower court and remand for trial.

Reversed and remanded for trial.

We do not retain jurisdiction.

       The limitation on liability in Policy # TP-15546650 (Policy I) is as follows:

        Limitation of Liability. The insurance under this Policy does not cover ..., or (2) death, at any time, from disease or accident from or as a consequence of, injuries intentionally indicted upon the Insured by the Insured or any other person, or suicide or attempt thereat while sane or insane, or the use or induence of any intoxicant, or habitual illicit use or drugs or injuries sustained while dghting or taking part in any altercation resulting in physical violence, or any illegal or criminal or immoral act on the part of the Insured or injuries sustained in wars or riots, or while the Insured is engaged in military or naval service or in any armed force. In any such event, the Company will return to the Beneficiary all premiums paid on the policy, (emphasis added)
      Policies # CM-1051574D (Policy II) and # CM-1011774D (Policy III) are identical and contain the following clauses on liability:
      Pilgrim Life Insurance Company agrees to pay an additional amount of insurance equal to the amount of insurance payable at the death of the Insured, immediately upon receipt of due proof that the death of the Insured resulted directly and independently of all other causes from accidental bodily injury as evidence by a visible contusion or wound on the exterior of the body ...
      and
      Exceptions and Exclusions—this agreement does not apply to death of Insured resulting directly or indirectly ... (f) from participating in a riot or committing or attempting to commit an assault or felony....


author: PER CURIAM:

text:
    452 A.2d 271
    COMMONWEALTH of Pennsylvania v. Harry Lee WHITTMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 23, 1982.
    Filed Oct. 29, 1982.

      William P. Fedullo, Philadelphia, for appellant.
    Jane Culter Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   PER CURIAM:

Harry Lee Whittman was tried by jury and convicted of robbery, aggravated assault, and conspiracy arising out of a holdup and shooting at a Philadelphia bar. On direct appeal, the judgment of sentence was affirmed. Commonwealth v. Whitman, 252 Pa.Super. 66, 380 A.2d 1284 (1977). Allocatur was denied. Whittman then filed a petition under the Post Conviction Hearing Act (PCHA). New counsel was appointed, and an evidentiary hearing was held. When the PCHA petition was dismissed, this appeal followed.

On appeal, Whittman argues that trial counsel was ineffective (1) for refusing to allow appellant to testify as a defense witness, (2) for failing to use a photograph of appellant to contradict a description testified to by a Commonwealth witness, and (3) for failing to preserve for appellate review an unsuccessful objection to evidence regarding the finding of the gun used in the holdup. Appellant also contends that the trial court erred in refusing to grant a new trial because of the recanting testimony of a Commonwealth identification witness.

Unfortunately, the PCHA hearing court made no findings of fact regarding these specific issues. Therefore, we are unable to fulfill our responsibility of conducting meaningful appellate review. See: Commonwealth v. Reed, 298 Pa.Super. 480, 444 A.2d 1285 (1982). See also: Commonwealth v. Townsell, 474 Pa. 563, 568 n. 6, 379 A.2d 98, 100 n. 6 (1977); Pa.R.Crim.P. 1506(5).

Instead, we remand with directions to the court below to make findings of fact within sixty days hereof. Jurisdiction is retained.

      . Pa.R.Crim.P. 1506, in effect at the time of appellant’s PCHA hearing, provided:
      When the court grants a post conviction hearing, it shall:
      (5) Cause all evidence adduced at the hearing to be recorded, file a statement of record setting forth its findings of fact and its conclusions of law [.]
      This requirement is now found at Pa.R.Crim.P. 1508(d)(3), effective June 27, 1982.


author: OPINION PER CURIAM:

text:
    452 A.2d 272
    COMMONWEALTH of Pennsylvania v. Fidel SANTIAGO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 5, 1981.
    Filed Nov. 5, 1982.
    Peter V. Marks, Sr., Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   OPINION PER CURIAM:

On appellant’s petition, No. 416, Philadelphia, 1981, filed after submission of this appeal, and agreed to by the Commonwealth, we remand so that there may be a hearing on post-trial motions based upon after-discovered evidence. This remand is without prejudice to appellant being able to raise, on a future appeal, after the after-discovered evidence issue has been litigated in the lower court, the same issues he has raised on this appeal.

Appellant’s petition for remand is granted and the record on this appeal is remanded to the lower court for further proceedings consistent with this opinion. We do not retain jurisdiction.