author: VAN der VOORT, Judge: SPAETH, Judge,

text:
    462 A.2d 1329
    COMMONWEALTH of Pennsylvania v. Robert LARK, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1982.
    Filed June 24, 1983.
    Petition for Allowance of Appeal Granted Nov. 22, 1983.

      William R. Solvibile, Philadelphia, for appellant.
    Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Appellant was arrested and charged with robbery, theft by unlawful taking and/or disposition, theft, receiving stolen property, aggravated assault, simple assault, recklessly endangering another person and possession of instruments of crime. Appellant’s motion to suppress physical evidence and a statement were denied. Following a jury trial, appellant was convicted of robbery and possession of an instrument of crime. Post-trial motions were denied and appellant was sentenced to a total term of imprisonment of twelve and one-half to twenty-fivé (I2V2 to 25) years. This appeal followed. Appellant’s brief lists eight issues to be resolved on appeal; we will review his first three contentions as one issue. A brief summary of the factual and procedural history of this case will be helpful.

A real estate broker was robbed on December 28, 1979, by an actor wearing a stocking over his face. The victim however recognized appellant from his build and voice as the culprit; appellant had been a tenant of the victim and had been in the real estate office on a number of occasions. Among cash and other items that were taken, the actor directed the victim to make out a check in the name of “James Ira Health”; the actor showed a social security card bearing that name.

Appellant had been wanted by the authorities on unrelated charges. Information was received concerning appellant’s future activities and surveillance was established. Appellant arrived as expected and detecting the presence of police, fled and proceeded to take refuge in an occupied residence. Appellant contacted a lawyer by telephone who arrived at the above residence. Appellant then surrendered to the police. Later the attorney stated to the police that appellant did not wish to make any statement. The attorney left. The police advised appellant of his Miranda Rights. Appellant allegedly refused to talk about the other unrelated crime but would discuss other matters; i.e., the current set of charges. He indicated he did not want to talk to an attorney. Appellant confessed to the robbery of the real estate office.

I. Should Appellant’s Confession Have Been Suppressed?

Appellant’s argument is threefold. He argues that any statement given without counsel present and after counsel had been retained should have been suppressed. The police should not have continued interrogation after appellant invoked his right to remain silent absent a request by appellant. Finally, he contends that he did not waive his Miranda rights.

Appellant first argues that the suppression court erred in failing to suppress certain statements he made to the police on the day of his arrest. Although there is no single litmus-paper test for determining the validity of a confession, the parameters of appellate review of a suppression court’s ruling of admissibility are well-defined.
The suppression court, which hears and evaluates the testimony, is required to make findings of fact and conclusions of law ... The court must determine whether the Commonwealth has established by a preponderance of the evidence that the confession was voluntary and that the waiver of constitutional rights was knowing and intelligent ... Our responsibility on review is “to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” .. In making this determination, this Court will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Kichline, 468 Pa. 265, 279, 361 A.2d 282, 290 (1976) (cites omitted). We will consider all of the attendant circumstances to determine if it was sufficiently demonstrated that appellant’s decision to speak was the product of a free and unconstrained choice and that the waiver of his constitutional rights was a knowing, intelligent and voluntary choice. Id.

Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980). Here the suppression court found that there was no agreement by the police not to interrogate appellant and therefore found no basis for suppressing his statements (N.T. Suppression pp. 218-219).

In reviewing the record in view of the above standard, we find the following events led up to appellant’s admission. Appellant acquired the attorney’s name through the telephone directory yellow pages. (Id. pp., 165, 168) After appellant was taken to the police station he consulted with private counsel. As counsel was leaving, the attorney advised the police authorities that appellant did not wish to make a statement. (Id. p. 98) The same witness responded affirmatively when asked whether counsel informed him not to interview appellant as he did not wish to speak to the police. (Id. p. 110) The attorney who aided appellant in surrendering testified that he left after the police assured him appellant would not be interrogated. (Id. pp. 122, 134, 135) A second detective testified in rebuttal. He testified that the attorney just informed him that appellant did not wish to make a statement. (Id. p. 168) The police did not assure counsel that they would not question appellant. (Id. pp., 169, 173)

Resolving the discrepancies between the recollections of the police officers and private counsel is a matter for the suppression court. This court may not substitute its own finding for those of the lower court especially in weighing the credibility of the witnesses. Commonwealth v. Stamm, 286 Pa.Superior Ct. 409, 429 A.2d 4 (1982). As the record supports the court’s findings that no agreement existed between the investigating officers and counsel to forego questioning, we may not supplant its findings with our own. Therefore the issue devolves into whether when counsel informs the police that a suspect wishes to exercise his or her option to remain silent, the police may nonetheless question the suspect.

On this point there has been substantial disagreement among the jurists of this Commonwealth. We find it unnecessary to go into a detailed summation of this dispute in jurisprudence as it has been reviewed on numerous occasions. We need only offer a brief glance of the split in opinions. In Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980) four justices agreed that a defendant’s statement given in the absence of counsel was admissible even though counsel had informed the police that the defendant had been advised to remain silent; two justices joined in a dissent. In Commonwealth v. Lark, 482 Pa. 292, 393 A.2d 1112 (1978), three justices, in an opinion for reversal, suggested a pro se rule requiring the presence of counsel when interrogation takes place after counsel has been retained. A fourth justice, finding that the police had explicitly and clearly assured counsel that no questioning would take place, held the violation of such agreement required a new trial. Only three justices in Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322 (1977) held that once counsel has undertaken to represent a suspect, a defendant could not waive his right to counsel unless the attorney was present. While in Commonwealth v. Yates, 467 Pa. 362, 357 A.2d 134 (1976), two justices, with another two concurring in the result, found that a represented defendant could waive his or her Miranda rights. Three justices dissented. Finally, in Commonwealth v. Hawkins, 448 Pa. 206, 292 A.2d 302 (1972), the Supreme Court voted 4 to 3, finding that the authorities could question without counsel being present, a suspect knowing he had retained counsel.

In reviewing the above five cases it becomes evident that the view that a represented defendant cannot waive counsel outside of counsel’s presence, has never attained the majority position in this Commonwealth. As in Hawkins (1972), Rigler (1980) has expressed the majority view that a defendant can waive the benefit of having retained counsel present, without counsel’s present advice. Such majority, thoúgh not unanimous is nonetheless the state of the law of this Commonwealth and this court is bound by it. Such holding was followed by this court in Commonwealth v. Lowery, 276 Pa.Superior Ct. 569, 419 A.2d 604 (1980); Commonwealth v. Allen, 272 Pa.Superior Ct. 345, 349, 415 A.2d 1231, 1232 (1979). In Allen, Justice Manderino, sitting as a judge of this court, filed a concurring opinion which is a commentary on the state of the law. Justice Manderino, one of the vocal dissents in the above Supreme Court cases, stated:

I concur in the result reached by other members of the panel in this case since the panel, sitting as a Superior Court panel, follows the decisions of the Supreme Court. When sitting as a member of the Supreme Court, as distinguished from my present duties, sitting by special designation as a member of the Superior Court, I have maintained contrary views.

272 Pa.Superior Ct. at 348, 415 A.2d 1231 (Citations deleted). Therefore, we find that appellant could waive his various Miranda rights without the benefit of counsel. We must now determine if such waiver was valid.

Miranda requires only that a waiver of such rights be made voluntarily, knowingly and intelligently. In evaluating such a waiver a court must look to the totality of the surrounding circumstances. We must look to the duration and method of interrogation; the conditions of confinement; the displayed attitude of the questioning officers; the suspect’s physical and psychological condition and any other influence which may weaken a person’s resistance to suggestion or undermine his free will. Commonwealth v. O’Bryant, 479 Pa. 534, 388 A.2d 1059 (1978); Commonwealth v. Lowery, supra. A waiver of one’s Miranda rights will not be presumed, but must be explicit. Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979); Commonwealth v. Christmas, 281 Pa.Superior Ct. 114, 421 A.2d 1174 (1980). In reviewing the Commonwealth’s evidence and so much of appellant’s that remains uncontradicted, and in evaluating the validity of the waiver of appellant’s constitutional rights, we find the following summary of testimony to be determinative.

The investigating officers testified that appellant was given Miranda warnings, and appellant waived them as to the current case but refused to talk about any murder. (N.T. Suppression, pp. 100-102, 170-171). Counsel testified that he did not object to the police giving the required warnings because appellant knew his rights. (Id. at 136) Appellant himself, testified that the police twice advised him of his rights; and he himself admitted that he was aware of his constitutional rights. (Id. at 151). According to the detectives appellant insisted that nothing be written down during the interview. (Id. at 107, 171) It was the testimony of the detectives that appellant proceeded to waive his Miranda rights. Appellant claimed he told the officers he had nothing to say and insisted that he never gave any statement regarding the present case. (Id. at 144). He did state his belief that the prosecutor would “mess up the case”, but he would beat it anyways because he did not do it. (Id. at 155). The officers testified that the only limitation appellant placed upon the conversation was that he would not talk about any murders. (Id. at 102, 177) The discourse was described as “extemporaneous chatter” or “rambling conversation.” (Id. at 106, 170). He never asked to terminate the conversátion, (Id. at 171); nor did he request return of counsel. (Id. at 172)

Here appellant was questioned intermittently for three and one half (372) hours. (Id. at 104) During this period four interviews took place, each separated by a period in which appellant was left alone. During these questioning periods, two detectives were present and for part of the time, an assistant district attorney was involved. On two occasions appellant declined an offer of nourishment but he was permitted to use the restroom and he did take drinks of water. (Id. at 104, 106) The only threat that appellant claimed was made was one regarding charges pending “down south.” (Id. at 146).

Reviewing the above testimony we find that appellant voluntarily, intelligently and knowingly waived his rights. The duration and conditions of the interrogation were not such as to undermine resistance. The discourse was free flowing and not forced. Offers were made to accommodate appellant’s physical needs. Except for one reference to a threat of charges pending in another jurisdiction, appellant himself did not claim any influence that could have overborne his will.

II. Did the Lower Court Abuse its Discretion in Failing to Grant the Appellant’s Request for a Lineup?

Appellant, prior to the preliminary hearing, requested a “voice lineup.” The basis for such request was that the actor wore a mask and the victim had identified the appellant as the actor by his voice, physical build and mannerisms. The victim had had numerous business dealings with the appellant. Appellant claims he was prejudiced by the denial of a lineup and such prejudice was not cured by a precautionary instruction.

A criminal defendant does not have a constitutional right to a line-up. Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977); and Commonwealth v. Steffy, 264 Pa.Superior Ct. 110, 399 A.2d 690 (1979). While a line-up should be granted where identification is at issue, failure to do so does not require release. Instead, in certain circumstances, the trier of fact should be informed that the defendant “had been denied the opportunity for a more objective identification and for that reason the subsequent less reliable identification could be viewed with caution.” Commonwealth v. Sexton, 485 Pa. 17, 25, 400 A.2d 1289, 1293 (1979).

The court’s charge to the jury regarding identification testimony did not include any comment on the denial of the prehearing lineup. (N.T. Trial pp. 4.171-74). Following the charge the court inquired of trial counsel whether either desired an additional or clarifying charge. Defense counsel suggested a charge concerning an element of one of the crimes charged. The court amended its charge accordingly and no further charge was requested.

Since appellant did not request such charge, nor make a timely and specific objection to the omission of an instruction regarding the denial of the prehearing lineup, it has not been preserved for review. Commonwealth v. Rineer, 310 Pa.Superior Ct. 241, 456 A.2d 591 (1983); Commonwealth v. Linder, 284 Pa.Superior Ct. 327, 336 n. 5, 425 A.2d 1126, 1130 n. 5 (1981); see Pennsylvania R.Crim.P. 1119(b).

III. Did the Trial Court Err in Redacting the Statement of Appellant?

Outside of the presence of the jury, the Commonwealth brought to the court’s attention the following problem. One of the detectives (referred to in part I) was scheduled to take the stand and testify concerning appellant’s waiver of Miranda. When appellant had been asked if he wished to give a statement, appellant responded “I won’t talk to you about the murder, but I will talk to you about everything else.” The prosecutor, fearing that a reference to other criminal activity could present problems, suggested that the question and/or answer be reworded. The court indicated it would permit the assistant district attorney to ask “Was Mr. Lark prepared to speak about the robbery?”, to which the witness would answer “yes”. Defense counsel initially opposed such measure but subsequently reluctantly countenanced the proposed redaction when the court inquired what counsel would suggest. (N.T. Trial pp. 3.3-3.7) Defense counsel renewed his concern at trial. The court responded by directing the detective to merely quote the appellant as saying “I’ll talk to you about anything.” (Id. at 348-349) Appellant now contends that the redacted statement was prejudicial to him since the jury was given the impression that appellant was willing to talk to the police.

Redaction in its broad sense indicates any revision or editing but in a strict legal sense has come to refer to the deletion, and any other change in a confession, to strike out any reference by one joint defendant to any co-defendant.

Commonwealth v. Johnson, 474 Pa. 410, 411 n. 1, 378 A.2d 859 n. 1 (1977). See also Commonwealth v. Guess, 266 Pa.Superior Ct. 359, 404 A.2d 1330 (1979) and Commonwealth v. Young, 263 Pa.Superior Ct. 333, 397 A.2d 1234 (1979). We believe the use of the word “redaction” in the current situation is an appropriate use of the word even though we are not dealing with a reference by one defendant regarding a co-defendant. Johnson held that questions over redaction fell within the discretion of the trial court and must be decided on a “case by case basis.”

We do not find any abuse of the trial court’s discretion. Appellant does not indicate exactly what prejudice he suffered: though we may extrapolate that he feared the jury would find, if advised that appellant freely conversed, that any admission or confession was voluntary. If such was appellant’s fear, we are not persuaded. As indicated in part I, we found appellant’s confession was admissible; therefore any prejudice resulting therefrom must be endured, as prejudice alone will not block the admission of relevant and otherwise admissible evidence.

IV. Did the Trial Court Err in Admitting into Evidence the Holster and Ammunition Pouch which Appellant was wearing at the Time of His Arrest?

When appellant surrendered to the police he was wearing a shoulder holster with an attached ammo pouch. The Commonwealth sought to introduce testimony pertaining to the holster and the holster itself into evidence. Appellant objected both to the testimony and the introduction of the holster. (N.T. Trial, pp. 3.51, 3.146) The prosecution contends the holster was probative as appellant was seen entering the residence with a weapon in the holster. Police subsequently located a hand gun inside the house; as it fit the holster, the Commonwealth argues it indicates that the gun belonged to appellant. The victim of the robbery identified this gun as being similar to the one used in the robbery, pointing to appellant as the perpetrator of the crime. Appellant disagrees, contending the holster lacked probative value and was therefore irrelevant and prejudicial.

A weapon shown to have been in a defendant’s possession may be properly admitted into evidence even though it cannot be identified positively as the weapon used in committing a crime; it may tend to prove that the defendant had a weapon similar to the one used. Any uncertainty that the weapon is not the actual weapon used in the crime, goes to the weight of such evidence. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981); Commonwealth v. Royster, 472 Pa. 581, 372 A.2d 1194 (1977); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). Similarly, testimony and demonstrative evidence which may identify a defendant as having possession of a particular firearm is admissible. Commonwealth v. Evans, 488 Pa. 38, 410 A.2d 1213 (1980). In the current case the holster and ammo pouch tended to confirm, that appellant had robbed the real estate broker. Compare, Evans. Therefore, it was properly admitted into evidence.

V. Should the Court have Directed a Mistrial When a Reference was made to a Book Recovered from Appellant which had been submitted to the Federal Bureau of Investigation?

The police recovered from the residence in which appellant had taken up refuge, a blue canvas bag containing, among other things, a book containing phone numbers. At trial one of the detectives, referring to such book, indicated it had been submitted to the F.B.I. Defense counsel moved for a mistrial, which was denied. No further inquiry into the matter occurred. Appellant complains that the reference implied that he had prior contact with the law enforcement officials.

“To warrant a characterization as prejudicial the testimony must convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.” Commonwealth v. Banks, 454 Pa. 401, 411, 311 A.2d 576, 581 (1973); quoted in Commonwealth v. Starks, 484 Pa. 399, 408, 399 A.2d 353, 357 (1979). “To conclude [here] that appellant had committed prior crimes from a detective’s single statement that [the book was submitted to the F.B. I.], the jury would have to indulge in gross speculation. Accordingly, the trial court did not err in denying this motion for mistrial.” Commonwealth v. Riggins, 478 Pa. 222, 231, 386 A.2d 520, 524 (1978).

VI. Did the Court Err in Admitting Altered Pictures of Appellant Holding a Weapon?

The police recovered three photographs of appellant from the blue canvas bag referred to in the prior issue. The pictures showed appellant wearing a shirt reading “Sugarbear”, a nickname by which appellant was known, and holding various weapons. In the first picture appellant had a gun dissimilar to the one used in the robbery; the court directed that the gun be covered over. The second photograph showed appellant holding the prior gun and one similar to the one used in the robbery; the court had the first gun covered over. The third picture had appellant holding a firearm similar to that used in the robbery; this photograph remained unexcised. Appellant simply contends that the photographs “served no purpose other than to inflame the jury.”

It is argued that the pictures were inflammatory and prejudicial. In determining the admissibility of such evidence a trial judge should first determine whether the photographs are inflammatory; if they are found not to be the admissibility of the pictures is to be governed by the normal considerations of relevancy. If the trial judge finds that the proffered pictures are of an inflammatory nature, the inquiry must then proceed to determining whether their evidentiary value outweighs the likelihood that they might prejudice the jury.

Commonwealth v. Wade, 480 Pa. 160, 171, 389 A.2d 560, 565-566, (1978) (Citations omitted). First we must comment upon the court’s excising portions of the photographs. Such was not only permissible but was commendable as the court removed any depiction which would unfairly affect the jury. See Commonwealth v. Brueckner, 458 Pa. 39, 45, 326 A.2d 403, 406 (1974); and Commonwealth v. Hoss, 445 Pa. 98, 115, 283 A.2d 58 (1971); Commonwealth v. Collins, 440 Pa. 368, 371, 269 A.2d 882 (1970).

Inflammatory evidence may be defined as that evidence which tends to inflame the minds.of the jurors. Commonwealth v. Chacko, 480 Pa. 504, 506, 391 A.2d 999, 1001 (1978); Commonwealth v. Millard, 273 Pa.Superior Ct. 523, 533, 417 A.2d 1171, 1177 (1979). The record here shows no undue prejudice against appellant nor any inflammation of passions against him as a result of the photographs. Therefore, we find no abuse of the trial court’s discretion. Moreover, contrary to appellant’s claim, the pictures were relevant. The blue canvas bag contained certain items identified as belonging to “Sugarbear” as well as items which could tend to establish that appellant was responsible for the robbery. The pictures of him wearing a shirt which read “Sugarbear” clearly suggests he owned the blue convas bag and was involved in the robbery. Compare, Commonwealth v. Gore, 262 Pa.Superior Ct. 540, 556, 396 A.2d 1302, 1309 (1978). And finally, as we held in part IV above, the fact that appellant had a weapon similar to the one used in the robbery is clearly relevant.

VII. Should the Trial Court have Declared a Mistrial When, Upon Cross-examination, the Prosecutor remarked about Media Coverage of Appellant’s Arrest?

The attorney who assisted Mr. Lark in surrendering, was called as a defense witness at trial. Upon cross-examination the district attorney inquired about the presence of television cameras at the time of surrender. Defense counsel objected and moved for a mistrial. The objection was sustained; a mistrial was refused; and no cautionary instruction was requested. (N.T. Trial, pp. 4.15-4.16) Appellant here argues that the above “prejudicial comments” somehow placed him in an “untenable position of having the jurors believe that there were T.V. cameras present at the time of his arrest.” (Appellant’s Brief, p. 14) He insists the only way to remedy the situation is to grant him a new trial.

While we may question the relevancy of such line of inquiry, we fail to understand what prejudicial impact it could have. Appellant has failed to indicate what adverse inferences the jury could have drawn. Nonetheless, assuming appellant was so prejudiced he is not entitled to any curative measure here. Our reasoning in Commonwealth v. Harris, 297 Pa.Superior Ct. 308, 315, 443 A.2d 851, 854 (1982) controls here.

Such a reference does not automatically require a new trial. Instead, a new trial is only necessitated where an improper comment was not curable by curative instruction or where it is curable but such was not given and the trial court and trial counsel could not reasonably conclude that such would reinforce the inference. In the context of this current case, we find that a curative instruction could have negated the inference, but instead counsel failed to request such instruction, possibly concluding reasonably that such would reinforce the inference. Commonwealth v. Bunting, 284 Pa.Superior Ct. 444, 426 A.2d 130 (1981). As appellant did not request a curative instruction, he may not on this appeal complain of prejudicial error. Commonwealth v. Humphreys, 267 Pa.Superior Ct. 318, 406 A.2d 1060 (1979).

Judgment of sentence affirmed.

SPAETH, J. files a dissenting opinion.

SPAETH, Judge,

dissenting:

I believe that a new trial should be granted. For I agree with appellant’s argument that “[o]nce a lawyer for the defendant informs the police that the defendant desires to exercise his Fifth Amendment privilege, any further statement obtained from the police as a result of further interrogation instituted by the police is constitutionally impermissible and inadmissible.” Brief for appellant at x.

Immediately before surrendering to the police, appellant telephoned an attorney, Lewis S. Small, and requested his assistance. N.T. 118-19. Small went to the police station, and following his arrival, appellant conferred with him and his associate, Steven Margolin, for approximately 20 minutes. N.T. 98; 118-19. As Small and Margolin left the police station, Small told the detectives that appellant did not want to make a statement. N.T. 98-99; 122. Within moments of Small’s and Margolin’s departure, the detectives went to appellant, advised him of his Miranda rights, and asked him whether he wanted to remain silent. N.T. 100-02. Appellant said he was willing to talk, and confessed to having committed the robbery. At his trial his confession was introduced into evidence against him.

Small’s statement to the detectives that appellant did not want to make a statement was an effective assertion of appellant’s right to remain silent. Cf. Brewer v. Williams, 430 U.S. 387, 405, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424, reh’g denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 240 (1977). (Defendant “effectively asserted his right to [have] counsel [present during interrogation] by having secured attorneys ... both of whom, acting as his agents, had made clear to the police that no interrogation was to occur during the journey.” (emphasis added); Commonwealth v. Rigler, 448 Pa. 441, 412 A.2d 846 (1980), cert. denied, 451 U.S. 1016, 101 S.Ct. 3004, 69 L.Ed.2d 387 (1981). (Because neither defendant nor his attorney asserted defendant’s right to remain silent, prohibition against subsequent interrogation inapplicable); Commonwealth v. Bullard, 465 Pa. 341, 347, 350 A.2d 797, 799 (1976) (Where judge advised police that they were not to talk to defendant until his family obtained a lawyer, “[t]he record show[ed] that, through th[is] intermediary], appellant expressed a clear desire not to be questioned until counsel was obtained for him____”) (emphasis added).

When a defendant asserts his right to remain silent, the police are forbidden from interrogating him further unless: (1) the defendant initiates further communication, Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, reh’g denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981); Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694, reh’g denied sub nom. California v. Stewart, 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966); Commonwealth v. Shepherd, 269 Pa.Super. 291, 409 A.2d 894 (1979); Commonwealth v. Nahodil, 462 Pa. 301, 341 A.2d 91 (1975); or (2) a sufficient period of time has elapsed, Commonwealth v. Crosby, 464 Pa. 337, 346 A.2d 768 (1975) (Police may initiate interrogation more than two weeks after defendant asserts right to remain silent); Commonwealth v. Frison, 301 Pa.Super. 498, 448 A.2d 18 (1982) (Police may initiate interrogation three months after defendant asserts right to remain silent). Here, within moments of appellant’s assertion of his right to remain silent the police went to him, advised him of his Miranda rights, and asked him whether he wanted to remain silent. The only question, therefore, is whether this conduct of the police constituted interrogation. For if it did, appellant’s resulting confession was obtained in violation of Miranda and should not have been introduced into evidence at his trial. Miranda v. Arizona, supra.

It is clear to me that the conduct of the police did constitute interrogation. Miranda warnings are required only as a prelude to custodial interrogation, Miranda v. Arizona, supra, and the police could have had no other purpose in mind when they gave appellant the warnings except to elicit a statement. Moreover, the United States Supreme Court has held in Edwards v. Arizona, supra, that police conduct indistinguishable from the police conduct here constituted interrogation. In Edwards, the defendant asserted his right to remain silent. The next morning, police detectives went to see him at the jail. Over Edwards’s protest, the jail guard took him to the detectives. They told Edwards that they wanted to speak with him, and they advised him of his rights. Edwards then made an inculpatory statement. The Court held that this conduct constituted forbidden interrogation. Since the conduct of the police here is indistinguishable from the police conduct disapproved in Edwards, appellant’s confession was obtained in violation of Miranda and should not have been introduced into evidence at his trial.

A new trial should be granted.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . There can be no question here that the alleged waiver was explicit. Appellant gave the following responses.
      Q. “Do you understand that you have a right to keep quiet ...?”
      A. "Sure do.”
      Q. "Do you understand that anything you san (sic) can and will be used against you?”
      A. “Yes.”
      Q. "Do you want to remain silent?”
      A. “No, I’ll talk to you about anything but I aint talking about any murders.”
      Q. "Do you understand that you have a right to talk with a lawyer ... ?”
      A. "Yeah.”
      Q. "Do you understand that if you cannot afford ... a lawyer ... ?”
      A. "Yeah.”
      Q. "Do you want ... to have a lawyer ... ?”
      A. "I already talked to a lawyer and I ain’t sure if I’m going to use him or not. He might not be as crack as I thought. I know what I’m doing.”
      Q. “Are you willing to answer question ... ?”
      A. “Sure, ask all you want. But I ain’t giving no written statement.”

        (N.T. Suppression, pp. 102-103).

      . We must note the novelty and precariousness of appellant’s position. At the suppression hearing, he claims he did not give any inculpatory statement; here he claims any confession was involuntary, unintelligently and unknowingly entered. These two positions are inherently and logically inconsistent.

      . As suppression of appellant’s confession was properly denied, the alternative of allowing the verbatim response into evidence would have clearly been more damaging to appellant’s case.

      . The ammo pouch contained 13 rounds of live .32 caliber automatic ammunition; the gun in question was a .32 caliber automatic.

      . The majority fails to address appellant’s argument, instead observing that "the suppression court found that there was no agreement by the police not to interrogate appellant____" At 1332. Whether there was agreement, however, is irrelevant.


source: Caselaw Access Project

author: CERCONE, President Judge:

license: Public Domain

text:
    462 A.2d 1340
    COMMONWEALTH of Pennsylvania v. Michael E. FULTZ, Appellant. COMMONWEALTH of Pennsylvania v. Michael E. FULTZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 8, 1983.
    Filed July 1, 1983.

      Alan Ellis, State College, for appellant.
    William A. Helm, District Attorney, Lewistown, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and MONTEMURO, JJ.
   CERCONE, President Judge:

Appellant Michael Fultz here appeals from the judgment of sentence imposed by the Court of Common Pleas of Mifflin County on March 11, 1981 following his entry of a guilty plea to the charge of Corruption of a Minor, and from the order entered by that court on April 27, 1981 denying his motion to withdraw his guilty plea. For the reasons advanced infra, we reverse the order of the lower court, vacate the judgment of sentence, and remand the case for a new trial.

On November 20, 1980, pursuant to a plea bargain, appellant pled guilty to Count II (corruption of a minor) of a three count information charging him with attempted involuntary deviate sexual intercourse, corruption of a minor, and indecent exposure. These charges stemmed from an incident which occurred allegedly on August 23, 1980 in a wooded area of Derry Township wherein appellant exposed his genitals to a six (6) year old boy and attempted to have the child perform fellatio upon him. Following appellant’s entry of the plea, the lower court sentenced him to a term of incarceration of not less than ten (10) months nor more than twenty-three (23) months in the Mifflin County Jail, and ordered him to pay a fine of three hundred dollars ($300.00) as well as the costs of his prosecution.

Appellant, previously represented by the Office of the Public Defender, then retained private counsel who, pursuant to Pa.R.Crim.Pro. 321 and 1410, filed timely motions challenging the validity of the guilty plea and requesting a modification of the sentence. The lower court, by order dated April 17, 1981, denied those motions.

Instantly, appellant argues, inter alia, that his plea of guilty to the charge of corruption of a minor was unknowing, involuntary, and hence invalid in that it was entered on the advice of counsel who himself was ineffective as a result of his failure to challenge the competency of the complainant, a six year old child. We agree.

The entry of a plea of guilty invariably results in the waiver of all grounds of appeal, with the exceptions of challenges to the voluntariness of the plea and the jurisdiction of the sentencing court. Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978); Commonwealth v. Greer, 475 Pa. 646, 326 A.2d 338 (1974). Consequently, an assertion of ineffective assistance of counsel following upon the entry of a guilty plea will afford a basis for relief only if there can be demonstrated some causal nexus between the alleged ineffectiveness and appellant’s entry of what amounts to an unknowing or involuntary plea. Commonwealth v. Chumley, supra; Commonwealth v. Albertson, 269 Pa.Superior 505, 410 A.2d 815 (1980); Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978). In measuring the adequacy of counsel’s representation of his client, we are guided by the test employed by our Supreme Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), wherein it ruled:

[Cjounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis, (emphasis in original).

Id., 427 Pa. at 604-605, 235 A.2d at 352-353.

Upon a thorough review of the record, we conclude that the decision of appellant’s plea counsel to forego an investigation into the competency of the Commonwealth’s sole witness to the alleged crime, a boy six years of age, enjoyed no reasonable basis.

At the hearing ordered by the lower court on appellant’s motion to withdraw his guilty plea, appellant’s plea and sentence counsel, Public Defender John B. Schaner, testified that his own preparation of the case consisted of conducting two interviews with appellant’s parents and one interview with appellant himself, and of reviewing the transcript of the preliminary hearing which consumed approximately twenty typewritten pages. Mr. Schaner stated that he interviewed none of the witnesses who testified at the preliminary hearing, including the six year old prosecutor. Responding to a question posed on cross-examination by appellant’s newly retained counsel, Mr. Schaner admitted that he regarded appellant’s case as “a loser.” In explaining his recommendation that appellant plead guilty to the morals violation in return for a dismissal of the charges of indecent exposure and involuntary deviate sexual intercourse, Mr. Schaner commented in the following manner:

I read how the victim had testified before and I evaluated the problem of that victim’s testimony as a matter of what to expect if a jury were to observe that six year old boy saying the same things with the additional experience of the Preliminary Hearing in preparation for trial, saying the same things that he had said at the Preliminary Hearing.
I didn’t want to make him an object of loathing in the community merely for the sake of exposing him to a public trial when I believed that the outcome was to be a conviction based on the testimony of a very appealing, sympathetic type of victim.

Appellant himself appeared at the hearing conducted pursuant to his motion to withdraw his guilty plea. In regard to possible defenses which Mr. Schaner may have discussed with appellant, this exchange occurred between appellant and his counsel, Mr. Newman:

BY MR. NEWMAN:
Q. Did you ever discuss your case with him?
A. Well, as far as the case, no,—well, in the courtroom, the first time, you know, but as far as going over the case, no, but he called and talked to us on the phone for about an hour, but just getting background information, my school records, what my life was like, that type, but never discussed the case on the phone.
Q. Your lawyer, Mr. Schaner, did he ever discuss any defenses with you?
A. No.
Q. Did he ever bring up the issue of incompetency of the juvenile witness, the fact that a juvenile witness is presumed to be incompetent? A witness under the age of 14 and in fact a witness under seven may not be competent at all to testify. Did he ever suggest any of that to you, any of that law?
A. No, he never said that. He kind of like put it in a different manner. He said because of the kid’s age, it was against me and that there was no way I could beat this case because of this kid’s age.
Q. Fine. Did he ever in any way tell you that perhaps that would be a defense for you or a strategy attacking the prosecuting witness’s competency because of his younger age, did your lawyer ever tell you that?
A. No, he never told me that.

Thus, it appears from the record that Mr. Schaner did not discuss with appellant the possibility of challenging the competency of the small boy but instead led appellant to believe that the only proper tactic was to plead guilty to the lesser offense and hope for a more lenient sentence. Moreover, Mr. Schaner made no attempt to raise the issue of the child’s competency before the lower court.

At the outset, we note that the competency of a prospective witness is a matter left entirely to the discretion of the trial judge whose ruling will not be reversed in the absence of a manifest abuse of discretion. Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976); Commonwealth v. Payton, 258 Pa.Superior 140, 392 A.2d 723 (1978); Commonwealth v. Mangello, 250 Pa.Superior 202, 378 A.2d 897 (1977). The appropriate competency investigation should determine whether the witness: (1) has the capacity to observe or perceive the occurrence with substantial degree of accuracy; (2) has the ability to remember the event which was observed or perceived; (3) has the ability to understand questions and to communicate intelligent answers about the occurrence, and; (4) has the consciousness of the duty to speak the truth. Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978); Commonwealth v. Hall, 267 Pa.Superior 204, 406 A.2d 765 (1979); Commonwealth v. Mazzoccoli, 475 Pa. 408, 380 A.2d 786 (1977); Commonwealth v. Baker, supra. Although there is no doubt but that a witness is presumed to be competent, and that the objecting party carries the burden of proving otherwise, it is equally certain that where the witness is under fourteen years of age, “there must be a searching judicial inquiry as to mental capacity...” Commonwealth v. Short, 278 Pa.Superior 581, 586, 420 A.2d 694, 696 (1980). It is nonetheless true, however, that as in cases involving the competency of adult witnesses, the trial judge enjoys considerable discretion in ruling on the competency of an infant witness. Id. Indeed, as the Supreme Court made plain in Mazzoccoli:

The question of competency of persons said to be mentally immature due to infancy is to be determined in the discretion of the trial judge after an inquiry as to mental maturity once the fact of infancy appears on the record or is obvious to the judge. Commonwealth v. Mazzoccoli, 475 Pa. at 410, 380 A.2d at 787 quoting Rosche v. McCoy, 397 Pa. 615, 620, 156 A.2d 307, 310 (1959).

It is clear, however, that our disposition of the instant appeal in no way implicates those principles discussed above which relate to the amount of discretion enjoyed by trial judges in ruling on the competency of witnesses, since it appears here that the lower court was never called upon to resolve the question of the infant prosecutor’s competency. Rather, our task now is to ascertain whether some reasonable basis can be attributed to Mr. Schaner’s failure to challenge by any means the competency of the six year old boy, or to even interview the prosecutor since Mr. Schaner himself did not attend the preliminary hearing at which the boy gave his account of the events leading to appellant’s arrest.

We ruled in Commonwealth v. Gainor, 289 Pa.Superior 190, 432 A.2d 1116 (1981), that “ 'defense counsel must investigate all apparently substantial defenses available to the defendant and must assert them in a proper and timely manner.’ ” Id., 289 Pa.Superior at 198, 432 A.2d at 1120, quoting United States v. Williams, 615 F.2d 585, 594 (3d Cir.1980), and Beasely v. United States, 491 F.2d 687, 696 (6th Cir.1974). Consistent with that holding, we invalidated Gainor’s guilty plea as a product of the ineffective assistance of counsel who failed to explore the possibility of a defense of insanity. Gainor was charged with aggravated assault on a parish priest. Following the assault, Gainor, who had a history of mental illness, was committed to Mayview State Hospital where a psychological profile was prepared. The report characterized Gainor as a borderline psychotic and paranoid schizophrenic who maintained only a tenuous contact with reality and whose prognosis was poor. Despite these facts, Gainor’s counsel nevertheless testified at a P.C.H.A. hearing that he believed that insanity “was not an avenue to explore or proceed under.” The basis of his opinion was his belief that the defendant would have fared poorly in a jury trial given the large Catholic population of the community. We rejected the Commonwealth’s argument that a jury trial and insanity defense would have incurred the wrath of a potentially hostile jury, stating that that contention was irrelevant insofar as

the dereliction asserted here is the decision not to explore the possibility of an insanity defense, not the decision to refrain from asserting it. It is possible that, after adequate investigation, counsel could properly have recommended to Appellant that the best strategy to pursue was to enter a guilty plea in the hope of obtaining a lenient sentence.

Commonwealth v. Gainor, 289 Pa.Superior. at 196-197, 432 A.2d at 1120.

We noted further that

The mere possibility that an insanity defense could not have been successfully asserted does not excuse counsel’s failure to explore the merits of such a defense. Nor is it a justification for counsel making decisions without discussing them with Appellant. The record in the instant case unequivocally demonstrates that the information available to counsel imposed upon him a clear duty to investigate and to advise Appellant fully of the merits of an insanity defense. There is no reasonable basis for counsel’s disregard of this duty. Id.

Moreover, as we observed in Gainor, appellant could have waived his right to a jury trial pursuant to Pa.R. Crim.P. 1101. As a consequence, we here likewise reject the argument of appellant’s plea and sentence counsel that he recommended that appellant plead guilty in order to escape the possible unpleasant consequences of facing a hostile jury.

We also note our disapproval of the decision made by appellant’s counsel to enter a plea of guilty to the corruption charge without interviewing so much as a single witness who testified at the preliminary hearing, particularly when Mr. Schaner did not attend the hearing. Mr. Schaner later explained his actions at the hearing on appellant’s motion to withdraw his plea, saying that upon reviewing the twenty pages of the preliminary hearing transcript, he concluded that interviewing the prosecutor would not have proved beneficial, given the manner in which the boy testified at the preliminary hearing. The Supreme Court denounced such a course of conduct in Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976) where it found trial counsel ineffective (a) in dismissing the defense of self-defense without conducting a proper inquiry into the facts of the case; and (b) in deciding not to interview eyewitnesses because the witnesses appeared to be hostile. The Supreme Court granted Mabie a new trial and, with regard to counsel’s failure to interview witnesses, stated the following:

... counsel decided not to interview eyewitnesses to the incident based only on the testimony of one witness at the preliminary hearing and the conversation with Mabie. From the above information, it is counsel’s position that these witnesses were so hostile that to call them to testify would invite a conviction for murder of the first degree. However hostile these witnesses may have appeared to be, there is no basis for the decision neither to interview them nor to attempt to do so. While hostile witnesses at trial may have presented added difficulties to appellant’s case, the question here is the decision not to interview them, not the decision to refrain from calling them at trial. Accordingly, there was no danger of hostile witnesses inflaming a jury during an interview to determine what each saw and their degree of potential hostility. Rather, the value of the interview is to inform counsel of the facts of the case so that he may formulate strategy. Perhaps, after questioning these witnesses, counsel may have concluded that the best strategy was not to call them due to hostility and, as a matter of strategy, that decision on counsel’s part would not be subject to a claim of ineffective assistance of counsel. Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973). However, no such claim of strategy can be attached to a decision not to interview or make an attempt to interview eyewitnesses prior to trial. Therefore, no reasonable basis designed to effectuate Mabie’s interest can be attributed to counsel’s failure to question these witnesses or at least make a reasonable attempt to do so.

Id., 467 Pa. at 474-75, 359 A.2d at 374-75.

Finally, we perceive no reasonable basis for Mr. Schaner’s failure to request a competency hearing, to place on the record an objection to the minor’s competency, or to discuss the issue of his competency with appellant in order to afford the latter with adequate information upon which he could base his plea. The Supreme Court has long regarded a challenge to a witness’ competency as a tactic of arguable merit. See, e.g. Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1976); and Commonwealth v. Mangini, 493 Pa. 203, 425 A.2d 734 (1981). In Mangini, supra, the defendant had been convicted of murder on the strength of the testimony of a prosecution witness who had been diagnosed as a paranoid schizophrenic and who was forced to take daily doses of an antipsychotic drug which produced blurred vision. Mangini’s trial counsel posed no objections to the competency of the witness and made no attempt to test the witness’ competency in a hearing. Although counsel’s omissions were never raised on direct appeal, we addressed them following the denial of Mangini’s petition filed pursuant to the Post Conviction Hearing Act (PCHA). Because we regarded counsel’s failure to challenge the competency of the prosecution’s key witness as conduct depriving Mangini of the effective assistance of counsel, we reversed Mangini’s conviction and ordered a new trial. Pri- or to retrial, Mangini took an interlocutory appeal challenging the lower court’s granting of the Commonwealth’s motion to adopt the prior testimony of the witness who had earlier been determined incompetent to testify at the upcoming trial. In disposing of that interlocutory appeal, the Supreme Court concurred in our view that the PCHA court erred in regarding counsel’s behavior as “reasonable.” Justice Larsen, speaking for the Court, quoted extensively from our memorandum opinion:

Initially, it must be noted that an objection to the competency of the witness would at least have been of arguable merit under prior competency cases of the Supreme Court. See Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974) and Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978). Counsel could have raised this objection, or requested a competency hearing, without prejudice to his ability to pursue his other alternative, i.e. attempting to discredit the witness on cross.
This was not a case where counsel had two alternatives that were contradictory or mutually exclusive. In such a case, counsel must necessarily choose one or the other alternative. This case presents, instead, the situation where counsel has two alternatives, both of which are available to him. Counsel could have attempted to [first] disqualify the witness. (Indeed, the PCHA transcript reveals that counsel admitted he did not want Crossley to testify at all—this admission factually contradicts the PCHA court’s supposed “reasonable basis.”). If he succeeded in this attempt, there would be no need to pursue the less certain method of discrediting the witness on cross. If he failed in the attempt, he still could fall back on cross-examination. There was no reason offered at the PCHA hearing, nor in the opinion of the PCHA court, as to why that first [obviously more desirable] alternative was ignored other than counsel felt the second alternative would work. There is no reasonable basis under these circumstances, for deliberately eschewing one weapon (out of two available) when both can be used. mem. opinion at 5-6.

Id., 493 Pa. at 209, 425 A.2d at 737. (Emphasis in original).

Because we find no reasonable basis for Mr. Schaner’s failure to interview witnesses or investigate and discuss with appellant the possibility of raising the question of the incompetency of the infant witness/prosecutor, we find that appellant did not knowingly and voluntarily enter his plea of guilty since such plea was grounded upon the advice of ineffective counsel. Consequently, the order of the lower court is reversed, the judgment of sentence vacated, and the case remanded for a new trial. We do not retain jurisdiction.

      . 18 Pa.C.S.A. § 901.

      . 18 Pa.C.S.A. § 6301.

      . 18 Pa.C.S.A. § 3127.

      . In view of our disposition as to appellant’s first assignment of error, we need not address the three remaining issues, phrased by appellant in his brief as follows:
      II. THE GUILTY PLEA COLLOQUY WAS DEFECTIVE IN THAT THE JUDGE FAILED TO ELICIT FROM APPELLANT A FACTUAL BASIS FOR THE PLEA: THE TERMS OF THE PLEA AGREEMENT WERE NOT STATED ON THE RECORD IN OPEN COURT IN THE PRESENCE OF THE DEFENDANT: AND DEFENDANT WAS NOT ADVISED OF THE LIMITED APPELLATE REVIEW FOLLOWING A GUILTY PLEA.
      III. THE SENTENCING JUDGE FAILED TO ADEQUATELY STATE ON THE RECORD THE REASONS FOR IMPOSING A SENTENCE OF TOTAL CONFINEMENT ON AN 18 YEAR OLD FIRST OFFENDER.
      IV. APPELLANT’S SENTENCING COUNSEL WAS INEFFECTIVE IN FAILING TO EXPLORE SENTENCING ALTERNATIVES PRIOR TO SENTENCING.

      . In fact, the record discloses that Mr. Schaner’s office did not represent appellant during the preliminary hearing. Consequently, Mr. Schaner did not himself take part in or even attend that proceeding.

      . In fact, as we observed in Mangello, Professor Wigmore is of the opinion that appellate courts should never reverse such rulings, but, rather, should accept the testimony on its face and entrust the problem of credibility to the finder of fact. See Commonwealth v. Mangello, supra, 250 Pa.Superior at 205-206, 378 A.2d at 898-99; and VI Wigmore on Evidence § 1821 (Rev. ed. 1976).

       It is clear from this passage that, while the Superior Court sometimes referred to counsel’s “alternatives", the two strategies examined were nqt “alternatives" at all. Rather, they were distinct and independent tactics.


author: WIEAND, J.:

text:
    462 A.2d 1346
    Robert J. TRIFFIN, T/A General Funding, Appellant, v. Anita THOMAS, Ind. and T/A Anita Thomas, First Lady of Mirrors.
    Superior Court of Pennsylvania.
    Argued March 1, 1982.
    Filed July 1, 1983.

      Robert J. Triffin, Philadelphia, appellant, in propria persona.
    Sheldon C. Jelin, Philadelphia, for appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, J.:

The present appeal was taken from an order opening a default judgment. Because the order was based solely on petition and answer, without evidence from which a determination of disputed factual issues could be made, we reverse and remand for further proceedings.

It is now well settled that when a respondent effectively denies material allegations in a petition to open judgment, the petitioner must support his position with evidence. Bell v. Jefferson Republican Club, 304 Pa.Super. 157, 161, 450 A.2d 149, 151 (1982). Accord: Philadelphia City Employees Federal Credit Union v. Bryant, 310 Pa.Super. 526, 529, 456 A.2d 1060, 1062 (1983); Hutchings v. Trent, 304 Pa.Super. 376, 380, 450 A.2d 729, 731 (1982); Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 135, 403 A.2d 577, 580 (1979); Zinck v. Smashy’s Auto Salvage, Inc., 250 Pa.Super. 553, 556, 378 A.2d 1287, 1288 (1977); Johnson v. Leffring, 211 Pa.Super. 84, 87, 235 A.2d 435, 436-437 (1967). The procedure for establishing such evidence is contained in Pa.R.C.P. 209. Pursuant to that rule, “the petitioner must either take depositions on disputed factual issues or order the cause for argument on the petition and answer, thereby conceding the existence of all facts properly pleaded in the answer. Or, the respondent may, after fifteen days, in order to expedite the proceedings, obtain a rule to show cause why the petitioner should not take depositions or order the cause for argument on the petition and answer.” Bell v. Jefferson Republican Club, supra, 304 Pa.Superior at 161, 450 A.2d at 151 (citations omitted). Accord: Paules v. Sminkey, 290 Pa.Super. 223, 227, 434 A.2d 724, 726 (1981); Duffy v. Gerst, 286 Pa.Super. 523, 538, 429 A.2d 645, 653 (1981); Shainline v. Alberti Builders, Inc., supra, 266 Pa.Superior at 137, 403 A.2d at 580-581; American Corporation v. Cascerceri, 255 Pa.Super. 574, 580 n. 6, 389 A.2d 126, 129 n. 6 (1978); Zinck v. Smashy’s Auto Salvage, Inc., supra, 250 Pa.Superior at 556-557, 378 A.2d at 1288; Instapak Corporation v. S. Weisbrod Lamp & Shade Company, Inc., 248 Pa.Super. 176, 181-182, 374 A.2d 1376, 1378-1379 (1977); Maurice Goldstein Company v. Margolin, 248 Pa.Super. 162, 166-167, 374 A.2d 1369, 1371 (1977).

Robert J. Triffin, t/a General Funding, filed a complaint containing averments that he had purchased from Inter County Publishing Co., t/a “The Leader”, a claim against Anita Thomas, t/a Anita Thomas First Lady of Mirrors, for newspaper advertising in the amount of $576 plus interest at the rate of IV2 percent per month. The complaint was served upon the defendant, appellee herein, on February 19, 1981. On March 25, 1981, the plaintiff, appellant herein, caused a default judgment to be entered against the defendant-appellee for want of an answer. On April 27, 1981, appellee filed a petition to open the judgment, in which it was alleged, inter alia, that the default had occurred because of a late delivery of the complaint to appellee’s attorney and that appellee had “never ordered the advertising.” The petition also contained an averment that appellant had failed to register his fictitious name and that interest at the rate of 18 percent per annum was usurious. On May 18, 1981, appellant filed a “Reply and New Matter,” in which he denied the allegation that the advertising had not been ordered and averred that “after reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth” thereof. For the same reason he denied that the interest included in the default judgment was usurious. In “New Matter,” he contended that appellee had failed to explain adequately the default. Both parties filed memoranda of law, and on July 8, 1981, without receiving evidence via depositions or in any other manner, the court granted appellee’s petition and opened the judgment.

A petition to open a default judgment in assumpsit is an appeal to the equitable power of the court. Balk v. Ford Motor Co., 446 Pa. 137, 140, 285 A.2d 128, 130 (1971); Penneys v. Richard Kastner Company, Inc., 297 Pa.Super. 167, 169, 443 A.2d 353, 354 (1982); Carson Pirie Scott & Co. v. Phillips, 290 Pa.Super. 353, 356, 434 A.2d 790, 791 (1981). As a general rule, this power will not be exercised unless three factors coalesce: (1) the petition must have been promptly filed; (2) a meritorious defense must exist; and (3) there must be a reasonable excuse for the failure to file a timely answer. Commonwealth, Department of Transportation v. Nemeth, 497 Pa. 580, 583, 442 A.2d 689, 691 (1982); Kennedy v. Frank L. Black Jr., Inc., 492 Pa. 397, 401, 424 A.2d 1250, 1252 (1981); Balk v. Ford Motor Co., supra, 446 Pa. at 140 & n. 3, 285 A.2d at 130-131 & n. 3; Philadelphia City Employees Federal Credit Union v. Bryant, supra, 310 Pa.Superior at 529, 456 A.2d at 1062; Butterbaugh v. Westons Shopper City, Inc., 300 Pa.Super. 331, 334 & n. 1, 446 A.2d 641, 642 & n. 1 (1982); American Vending Company, Inc. v. Brewington, 289 Pa.Super. 25, 28, 432 A.2d 1032, 1034 (1981); Shainline v. Alberti Builders, Inc., supra, 266 Pa.Superior at 133-134, 403 A.2d at 579. An appellate court will not reverse a trial court’s ruling, whether opening or refusing to open a default judgment, unless it is shown that the court committed an error of law or manifestly abused its discretion. Kennedy v. Frank L. Black Jr., Inc., supra, 492 Pa. at 401, 424 A.2d at 1252; Balk v. Ford Motor Co., supra, 446 Pa. at 140, 285 A.2d at 131; Philadelphia City Employees Federal Credit Union v. Bryant, supra, 310 Pa.Superior at 529, 456 A.2d at 1062; Penneys v. Richard Kastner Company, Inc., supra, 297 Pa.Superior at 169, 443 A.2d at 354; Carson Pirie Scott & Co. v. Phillips, supra, 290 Pa.Superior at 356, 434 A.2d at 791; Duffy v. Gerst, supra, 286 Pa.Superior at 532-533, 429 A.2d at 650; Cruse v. Woods, 279 Pa.Super. 242, 245, 420 A.2d 1123, 1124 (1980); Shainline v. Alberti Builders, Inc., supra, 266 Pa.Superior at 134, 403 A.2d at 579.

The petition to open the default judgment in this case was filed on April 27,1981, and appellant concedes that the requirement of promptness was met. However, appellant is correct when he argues that the record in its present state does not permit a determination that appellee’s default should be excused. The petition contains averments that the defendant-appellee was informed erroneously regarding the exact date of service and that the answer to the complaint was timely prepared but inadvertently delivered late to the prothonotary for filing by counsel. These averments have been effectively denied by appellant. After appellant’s answer to the petition was filed, neither party proceeded under Pa.R.C.P. 209 to provide the court with the facts required to decide the petition to open. The failure to take depositions did not automatically trigger Rule 209 and operate as an admission by appellee of the averments of fact contained in the answer. Such facts will be deemed admitted only when the petitioner has ordered the cause for argument on the pleadings or when the petitioner has ignored a rule absolute to move for depositions. Philadelphia City Employees Federal Credit Union v. Bryant, supra, 310 Pa.Superior at 531, 456 A.2d at 1063; Hutchings v. Trent, supra, 304 Pa.Superior at 381, 450 A.2d at 731; Bell v. Jefferson Republican Club, supra, 304 Pa.Superior at 161, 450 A.2d at 151; Shainline v. Alberti Builders, Inc., supra, 266 Pa.Superior at 137 n. 4, 403 A.2d at 580 n. 4. Here, as in Instapak Corporation v. S. Weisbrod Lamp & Shade Company, Inc., supra, “appellee as the moving party did not proceed by rule or by agreement of counsel to take depositions; neither did appellee order the cause for argument on petition and answer; neither did appellant as respondent take a rule on appellee to show cause why it should not either proceed to take depositions or order the cause for argument on petition and answer. Instead, with only the petition and the answer, the lower court granted the petition. That decision was premature.” Id., 248 Pa.Superior at 181-182, 374 A.2d at 1379 (footnote omitted) (emphasis supplied). It could not properly act until it was in a position to determine the disputed facts. See: Hutchings v. Trent, supra, 304 Pa.Superior at 381, 450 A.2d at 731; Bell v. Jefferson Republican Club, supra, 304 Pa.Superior at 161-63, 450 A.2d at 151-152; Duffy v. Gerst, supra at 538-539, 429 A.2d at 653-654; J.C.S. v. D.M.S., 277 Pa.Super. 612, 622, 419 A.2d 1319, 1324 (1980); Shainline v. Alberti Builders, Inc., supra, 266 Pa.Superior Ct. at 137-138, 403 A.2d at 580-581; America Corporation v. Cascerceri, supra at 580 n. 6, 389 A.2d at 129 n. 6; Zinck v. Smashy’s Auto Salvage, Inc., supra, 250 Pa.Superior Ct. at 556-557, 378 A.2d at 1288; Maurice Goldstein Company v. Margolin, supra, 248 Pa.Superior Ct. at 166-167, 374 A.2d at 1371. Rule 209 placed no time limits on either party to proceed, and until either party took action that would enable the court to make a factual determination, or until some other force spurred matters along, the court could not properly act on appellee’s petition.

The averment in the petition to open that appellee did not order the newspaper advertising, if correct, is a complete defense to appellant’s claim for the price thereof. It is fundamental that for an agreement to exist there must be an offer and acceptance which signifies that there has been a “meeting of the minds.” Hahnemann Medical College and Hospital of Philadelphia v. Hubbard, 267 Pa.Super. 436, 439-440, 406 A.2d 1120, 1122 (1979). Without such assent there can be no enforceable agreement. Rissmiller v. Evangelical Lutheran Congregation, 268 Pa. 41, 110 A. 740 (1920); Courier Times, Inc. v. United Feature Syndicate, Inc., 300 Pa.Super. 40, 54, 445 A.2d 1288, 1295 (1982); Hahnemann Medical College and Hospital of Philadelphia v. Hubbard, supra. Thus, it is inconsequential that appellant’s assignor printed ads if, in fact, appellee did not order or agree to pay for them. See generally: 31 P.L.E., Sales § 12.

The defendant-appellee contends that the averments of fact in the petition must be deemed admitted because of appellant’s failure to file an adequate answer thereto. Appellant’s claim for the price of printing newspaper advertisements was based on an alleged contract. Therefore, a specific denial was necessary. It was inadequate to deny appellee’s averment generally and aver that appellant had no knowledge of the existence of a contract after reasonable investigation. Such a response was so inherently incredible that under normal circumstances it would have to be deemed an admission. See: Scales v. Sheffield Fabricating and Machine Co., 258 Pa.Super. 568, 393 A.2d 680 (1978); Cercone v. Cercone, 254 Pa.Super. 381, 386 A.2d 1 (1978); Delaware Valley Carpeting Contractors, Inc. v. Leicht, 73 D. & C.2d 51 (1975), aff'd, 234 Pa.Super. 714, 342 A.2d 419 (1975). See also: Elia v. Olszewski, 368 Pa. 578, 84 A.2d 188 (1951); Tide Water Associated Oil Co. v. Kay, 168 Pa.Super. 263, 77 A.2d 754 (1951); Goodrich-Amram 2d § 1029(c):l. However, appellee’s petition was itself defective. Pa.R.C.P. 206 requires that every petition “containing allegations of fact which do not appear of record shall be verified by affidavit.” This incorporates into petition practice the verification requirements of Pa.R.C.P. 1024 and requires verification by a party. Verification by another having knowledge of the facts will suffice only if the reason why the verification was not made by a party is recited. Warren v. Williams, 370 Pa. 380, 88 A.2d 406 (1952). The petition to open judgment in this case was verified by counsel without any explanation concerning the source of his information or the reason why the verification was not made by a party. This defect was not fatal to the petition. See: Lewis v. Erie Insurance Exchange, 281 Pa.Super. 193, 421 A.2d 1214 (1980); Monroe Contract Corp. v. Harrison Square, Inc., 266 Pa.Super. 549, 405 A.2d 954 (1979); Davis v. Safeguard Investment Company, 239 Pa.Super. 300, 361 A.2d 893 (1976). See also: George H. Althof, Inc. v. Spartan Inns of America, Inc., 295 Pa.Super. 287, 441 A.2d 1236 (1982). However, because the petition was itself defective, appellant’s failure to file an adequate answer thereto cannot be deemed an admission. Warren v. Williams, supra. Thus, there is no admission by appellant that appellee has a defense to appellant’s claim, and the existence of a defense to appellant’s action in assumpsit must also be developed factually before appellee’s petition to open can be determined. To entitle appellee to have the judgment opened, appellee must produce evidence which would require a jury to consider the contention that appellant’s assignor acted as an officious volunteer and not pursuant to contract in printing advertisements for which recovery is sought in the present assumpsit action.

Reversed and remanded for proceedings consistent with this opinion.

Jurisdiction is not retained.

       The preparation of an opinion for the court was reassigned to the writer on May 16, 1983.

      . Pa.R.C.P. 209 provides:
      Rule 209. Duty of Petitioner to Proceed After Answer Filed
      If, after the filing and service of the answer, the moving party does not within fifteen days:

        (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
      (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

      . The praecipe for judgment contained a certification that ten days' notice of intention to enter a default judgment had been mailed or delivered to defendant-appellee, but a copy of such notice was not attached to the praecipe. See: Pa.R.C.P. 237.1.

      . The complaint contained an averment that appellant’s use of the name "General Funding” had been properly registered.

      . The court itself may set a timetable for the taking of depositions and for decision. See: Shainline v. Alberti Builders, Inc., supra, 266 Pa.Superior at 138 n. 5, 403 A.2d at 581 n. 5.

      . It seems clear that the portion of the judgment which depends on interest at the rate of 18 percent is usurious. Act of January 30, 1974, P.L. 13, No. 6, § 201, 41 P.S. 201. See generally: 19 P.L.E. Interest and Usury §§ 21, 23.