author:
      WIEAND, Judge:
      HOFFMAN, Judge,

text:
    466 A.2d 674
    COMMONWEALTH of Pennsylvania v. Juan Ortiz DIAZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 3, 1983.
    Filed Oct. 7, 1983.
    William F. Ochs, Jr., Public Defender, Reading, for appellant.
    Charles M. Guthrie, Jr., First Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

If, during a routine search of a closed but unlocked prison cell, a plastic bag containing 64 marijuana cigarettes falls from items of clothing in the cell, is the sole occupant of the cell properly convicted of violating the statute making it a criminal offense to possess marijuana? Correctional officers conducting the search testified that the package of marijuana cigarettes had fallen from a shirt or jacket hanging in the cell. Juan Ortiz Diaz, the occupant of the cell, who was present at the time of the search, said that the cigarettes had fallen from items of dirty clothing in his laundry bag. This evidence was submitted to a jury which found Diaz guilty of possessing marijuana. A motion in arrest of judgment was denied, sentence was imposed, and this appeal followed. We affirm.

The test for determining the sufficiency of the evidence is whether, having viewed the evidence in the light most favorable to the Commonwealth and having drawn all reasonable inferences favorable to the Commonwealth, the jury could logically have found beyond a reasonable doubt that appellant had marijuana in his possession. See: Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983); Commonwealth v. Bachert, 499 Pa. 398, 402, 453 A.2d 931, 933 (1982); Commonwealth v. Darden, 311 Pa. Super. 170, 172, 457 A.2d 549, 550 (1983); Commonwealth v. Grabowski, 306 Pa.Super. 483, 486-87, 452 A.2d 827, 829 (1982).

This standard of review means what it says. The evidence and the reasonable inferences therefrom must be viewed in the light most favorable to the verdict winner, in this case the Commonwealth. Where there is only one occupant of a prison cell, and a package of marijuana cigarettes is found in the cell among articles of the occupant’s clothing, it is reasonable to infer therefrom that the occupant knew of the marijuana and had the power and intent to exercise control of the marijuana.

It is well settled that an inference of conscious dominion can be drawn from facts showing that the contraband was found in a place normally accessible only to the accused. Commonwealth v. DeCampli, 243 Pa.Super. 69, 75, 364 A.2d 454, 456-457 (1976). See also: Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981) (accused was sole tenant of apartment); Commonwealth v. Minoske, 295 Pa.Super. 192, 441 A.2d 414 (1982) (bottom of accused’s bedroom closet in room he occupied alone deemed normally accessible to him alone); Commonwealth v. Thompson, 286 Pa.Super. 31, 428 A.2d 223 (1981) (contraband in prison cell wedged into cross-piece of table near appellant’s bunk); Commonwealth v. Cubler, 236 Pa.Super. 614, 346 A.2d 814 (1975) (accused was sole lessee of house). However, the inference loses its persuasiveness if the contraband is found in a place where others have equal access with the accused. Commonwealth v. Stamps, supra, 493 Pa. at 538, 427 A.2d at 145; Commonwealth v. Fortune, 456 Pa. 365, 369, 318 A.2d 327, 329 (1974); Commonwealth v. Ferguson, 231 Pa.Super. 327, 333, 331 A.2d 856, 860 (1974). See also: Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977); Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971); Commonwealth v. Macolino, 302 Pa.Super. 96, 448 A.2d 543 (1982); Commonwealth v. Hannan, 229 Pa.Super. 540, 331 A.2d 503 (1974).

In the instant case, the question is a close one because a prison cell, by its very nature, does not permit the occupant to have exclusive control thereof. Commonwealth v. Crowley, 259 Pa.Super. 204, 209, 393 A.2d 789, 791 (1978). However, the contraband in this case was not merely in the cell but either inside or among items of the occupant’s personal clothing. At the time when the search was made, the door of the cell was closed but unlocked, and the cell was unoccupied. Appellant had been summoned and was present when the marijuana was found. The evidence did not disclose that other prisoners had reason to enter appellant’s cell or that other prisoners had in fact done so. Appellant argues that an inference of control can not properly be drawn because the search was made during an hour • of “free time” when cell doors were unlocked and prisoners were permitted to congregate in the corridor of the prison. Any prisoner, he suggests, could have entered his cell and placed the marijuana there. This argument was properly for the jury, whose duty it was to weigh the credibility of the witnesses and the weight of the evidence. The fact that the cell door was unlocked and had been unlocked for about an hour before the search was a relevant fact to be considered. As we have previously observed, however, the evidence did not disclose that anyone other than appellant had in fact been in his cell; and this fact the jury could also consider.

It is the absence of other persons which distinguishes the instant case from Commonwealth v. Burkley, 297 Pa.Super. 400, 443 A.2d 1182 (1982). In that case a sharpened screwdriver was found concealed in a mattress in a cell occupied solely by the appellant. Evidence disclosed that the cell had been generally left unlocked and unattended during the day and that other inmates regularly had entered the cell to watch television and also to clean the area and collect laundry. A panel of this court found the evidence sufficient to show that appellant had “control” of the screwdriver but insufficient to show that he had “conscious dominion” over it. In the instant case, the cell door was closed but had been left unlocked during approximately an hour of “free time”. However, there was no evidence whatsoever that anyone other than appellant had in fact entered the cell or had access to appellant’s personal clothing during that period.

Constructive possession may properly be inferred from the totality of the circumstances of a case. Commonwealth v. Ferguson, supra. Control and intent to control may be inferred from evidence that the accused is the sole occupant of a place in which contraband is found among personal effects peculiarly within the control of the accused. Commonwealth v. DeCampli, supra.

The judgment of sentence is affirmed.

HOFFMAN, J., filed a dissenting opinion.

HOFFMAN, Judge,

dissenting:

“Absent literal possession, the Commonwealth may sustain its burden by showing constructive possession, which requires the Commonwealth prove that the accused had the power to control the contraband and the intent to exercise that control.” Commonwealth v. DeCampli, 243 Pa.Superior Ct. 69, 74, 364 A.2d 454, 456 (1976). Here, because the Commonwealth has utterly failed to show that appellant either knew of or in any way intended to exercise control of the contraband, I must dissent.

The contraband was found in clothes near appellant’s unlocked cell door. “In view of the fact that it is admitted that prison garb is standard and bears no separately identifiable marks, there is no direct evidence that in fact the clothes belonged to [appellant].” Lower Ct.Op. at 2. Moreover, appellant had been away from the cell during the “free time” immediately prior to the search and the cell had remained unlocked and unattended. The Commonwealth’s evidence thus proved that marijuana was found in unidentified clothes near the door of appellant’s unlocked and unattended cell during a time when other prisoners were free to walk about the cell block. Contrary to the majority, I find that insufficient to establish appellant’s conscious dominion over the contraband and, accordingly, I dissent.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    466 A.2d 677
    COMMONWEALTH of Pennsylvania v. Carole J. FARMER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 1, 1983.
    Filed Oct. 7, 1983.

      Dennis D. Brogan, Assistant Public Defender, West Chester, for appellant.
    Phyllis R. Streitel, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   BECK, Judge:

Appellant, Carole J. Farmer, appeals from the lower court order denying her Petition to Strike Constable Costs imposed by a Chester County District Justice.

The facts underlying, the denial of that Petition were stipulated to at an October 14, 1981 hearing on the petition and are as follows. Appellant was arrested for outstanding warrants occasioned by her failure to respond to parking violation summonses. Notes of Testimony 10/14/81 at 2. She was testifying before the District Justice in an unrelated matter, and she was arrested after that hearing. Id.

In an “informal” hearing on June 10, 1981, the District Justice inquired of appellant whether she could pay any of the amount due. Id. She responded that she could not at that time pay any of the money due, that she was unemployed and on welfare, but that she could make some payment in a couple of days. Id. The District Justice responded that if she presently did not have the money to pay, she would be incarcerated immediately. Id. She was transported to the county prison in Franklin County as that was the nearest county prison housing women. Id. at 3.

At this June 10, 1981 hearing, a second hearing was scheduled for one week later. Id. She remained in Franklin County Prison until the date of the second hearing, at which hearing she agreed to bi-weekly payments of $25.00. Id. She was also assessed costs of $536.50 for transportation to and from Franklin County Prison. Appellant petitioned to strike those costs for transportation and appeals from denial of that petition.

Because we agree with appellant that the District Justice failed to comply either with Pa.R.Crim.P. 65, in incarcerating appellant upon her statement that she was unable to pay the parking fines, or with Pa.R.Crim.P. 316, in failing to provide counsel for appellant when there was a likelihood that she would be imprisoned, we reverse and strike the constable costs that resulted from transporting her to and from Franklin County Prison.

Pa.R.Crim.P. 65 states in relevant part:

Rule 65. Default in Payment and Collection of Fines and Costs After Summary Convictions
(a) If a defendant, sentenced to pay a fine or costs after a finding of guilty in a summary case, defaults in such payments, the issuing authority shall not commit the defendant to prison for failure to pay a fine and costs unless, after hearing, it appears that the defendant is financially able to pay the fine or costs.

(Emphasis added.) It is clear from the October 14, 1981 hearing, at which time the June 10, 1981 hearing was discussed, that appellant was incarcerated without the requisite finding under Rule 65 that she was able to pay her fines.

It is likewise clear that the District Justice violated Pa.R. Crim.P. 316 in failing to afford appellant counsel prior to incarcerating her. Rule 316 provides in relevant part:

Rule 316. Assignment of Counsel (a) In Summary Cases
Counsel shall be assigned in all summary cases to all defendants who are without financial resources or who are otherwise unable to employ counsel when there is a likelihood that imprisonment will be imposed.

(Emphasis added.)

As the Commonwealth Court reasoned in Groff v. Township of Elizabeth, Lancaster County, 54 Pa.Cmwlth. 192, 193, 420 A.2d 791, 792 (1980), cert. denied, 454 U.S. 868, 102 S.Ct. 335, 70 L.Ed.2d 171 (1981):

Appellant would be entitled to court-appointed counsel under Rule 316(a) of the Pennsylvania Rules of Criminal Procedure only when there is a likelihood that imprisonment will be imposed. In this case the penalty provided in the ordinance is the imposition of the fine. In default of the payment of the fine, then and only then may imprisonment be imposed and then only after a determination that the appellant is financially able to pay the fine or costs.

As the Comment following Pa.R.Crim.P. 316 makes clear, paragraph (a) of that rule was intended to implement Arger-singer v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). The Commonwealth Court noted in Bacik v. Commonwealth, 61 Pa.Cmwlth. 552, 554-55, 434 A.2d 860, 862 (1981) (emphasis in original), appeal dismissed, 456 U.S. 967, 102 S.Ct. 2227, 72 L.Ed.2d 841 (1982) that Argersinger “held that the federal constitution required that, ‘absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.’ ” The United States Supreme Court in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) interpreted the Argersinger rule as not requiring that the state must provide counsel whenever imprisonment is an authorized penalty; rather the Scott Court held “that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance-of appointed counsel in his defense.” Id. at 374-75, 99 S.Ct. at 1162-63. Here, appellant was incarcerated without having been afforded the aid of counsel. Thus, Rule 316 was violated.

Order reversed and the constable costs relating to transportation are stricken.

      . The Commonwealth concurs in the conclusion of the lower court that this matter should be remanded for an evidentiary hearing to determine whether appellant was unlawfully confined and whether transportation costs were improperly imposed. While it is true that the testimony in the June 10, 1981 hearing was not transcribed, we find that the aforementioned stipulated testimony constituted a sufficient basis upon which to review the denial of appellant’s petition to strike. We can discern no useful purpose in remanding, and accordingly we proceed to review the merits of the within appeal. To do otherwise would undermine our interest in judicial economy.

      . In light of our disposition, we need not reach appellant’s other claims that (1) she demonstrated at the informal hearing her inability to pay her fine and (2) she was denied equal protection of the laws in that she was transported to Franklin County Prison because Chester County Prison had no facilities for women. Appellant argues that the disparate treatment she received as a woman which resulted in an incremental transportation cost was constitutionally indefensible.


author: JOHNSON, Judge: POPOVICH, Judge,

text:
    466 A.2d 679
    AMERICAN MUTUAL LIABILITY INSURANCE COMPANY v. ZION AND KLEIN, P.A. and Benson Zion, Ind. t/a Benson Zion and Associates, Appellants.
    Superior Court of Pennsylvania.
    Argued March 23, 1983.
    Filed Oct. 7, 1983.

      Edward J. O’Brien, Haverford, for appellants.
    Robert E. Slota, Bryn Mawr, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

This is an appeal from an order of court, disposing of a Writ of Certiorari from a judgment entered by a district justice. American Mutual Insurance Company (hereafter referred to as landlord) had filed a complaint against appellants-tenants seeking possession of, and damages arising from, a leasehold owned by landlord and occupied by the tenants. The record of the proceedings, both before the district justice and the court of common pleas, is incomplete as various documents are missing. Nonetheless, we may dispose of this appeal.

The district justice found in favor of the landlord. The written notice of the judgment rendered and received by the tenants indicated that the verdict was in favor of the landlord both as to possession and damages. Another copy of the notice has the award of damage, and two of the named defendants struck out. Tenants timely praeciped for a Writ of Certiorari pursuant to Pennsylvania Rules of Civil Procedure Governing Actions and Proceedings before District Justice, No. 1009. The writ alleged that the damages sought exceeded the jurisdictional limits; that no claim existed against two of the defendants; and that the procedure was grossly irregular.

The certiorari court found that since the claim for damages had been withdrawn and tenants had surrendered the premises, the writ was moot as the sole claim had been resolved. In an attempt to make it “abundantly clear ... that no money damages had been adjudicated; the Court’s Order attempted to clarify the situation by unequivocally stating that any judgment as to money damages was to be stricken.” Opinion, p. 2.

Appellants argue on appeal that there was no basis in the record, except for unsworn statements, for the court’s finding that the claim for damages had been withdrawn. Additionally, tenants contend that the surrender of the premises was not amicable but a result of “legal duress”. We find that appellants’ own pleadings belie such claims. In a petition filed below, pursuant to Rule 1013(B), Pa.R.C. P.D.J., requesting allowance to pay rent into escrow, tenants averred that they had made arrangements to leave the premises. The petition predated both landlord’s letter, which is claimed to have intimidated appellants, and the alleged oral order setting a deadline for surrender of possession. The petition further averred that the written notice of judgment received (for both possession and damages) was contrary to the judgment announced at the hearing. Furthermore, in a memorandum filed below, tenants stated that landlord’s attorney proposed at the time of the hearing to limit the district justice’s hearing to the question of possession. In light of the above, we find that the record supports the finding that the writ was limited to possession and such had been made moot by tenant’s surrender of the premises.

Appellants attempt to avoid this finding of mootness by contending that the dispute has not been resolved because the tenants have a right to pursue a cause of action against the landlord for damages. They argue that they were unable to pursue a counterclaim since it would have exceeded the district justice’s jurisdictional limit and it could not have been raised in a motion to open or strike.

We are unpersuaded.

In Graziano Const. Co., Inc. v. Lee, 298 Pa.Super. 311, 317, 444 A.2d 1190, 1193 (1980) we reiterated the well established principal that:

[w]e cannot enter judgments or decrees to which effect cannot be given. Winston v. Ladner, 264 Pa. 548, 108 A. 22; Com. ex rel. v. Lawler, 343 Pa. 353, 22 A.2d 900. The rule is that where ... pending an appeal, an event occurs which renders it impossible for the appellate court to grant any relief, the appeal will be dismissed. Com. ex rel. v. Cairns, 48 Pa.Superior Ct. 265; Reichard’s License, 45 Pa.Superior Ct. 606; Mills v. Green, 159 U.S. 651, 16 Ct. 132 [40 L.Ed. 293].

(Citations omitted) (Brackets in original.) Appellants’ claims do not change the fact that the only issue before the trial court was whether it should set aside the judgment awarding landlord possession. See, Pa.R.C.P.D.J. No. 1014. Once the court found that possession had been given up, no purpose could be served in passing upon the correctness of the proceedings before the district justice. Pa. Coal Min. Ass’n. v. Commonwealth, etc., 498 Pa. 1, 4, 444 A.2d 637, 638 (1982); Burns Intern., etc. v. Power Plant, etc., 303 Pa.Super. 401, 402, 449 A.2d 748, 749 (1982).

Appellants’ case does not fall into the exception that a moot case will not be dismissed where issues raised are of a recurring nature, capable of repeatedly avoiding review and are of great public importance. See Graziano Const., supra. However, appellants attempt to bring this case within the scope of Atlantic Inland, Inc. v. Township of Bensalem, 39 Pa.Commw. 180, 394 A.2d 1335 (1978), which they contend stands for the proposition that where a major issue of a case becomes moot, the case will not be dismissed where a question of damages remains and there is “a continuing legal issue if the conduct became involved in further or other proceedings.” Appellants’ brief p. 18. See also, Keystone Bldg. Corp. v. Lincoln Sav. & Loan Ass’n, 439 Pa. 444, 266 A.2d 648 (1970) (issue of damage remained).

Appellants’ appeal does not fall into the scope of Atlantic Inland. That case held that where an issue of damages remained, dismissal was improper. As to the second holding attributed to such case by appellant, it is nothing more than a confusing interpretation of the rule that where conduct could be resumed upon dismissal and the issue is of a recurring nature of public interest, then the action should not be dismissed. Contrary to appellants’ belief, there is no remaining issue of damages in this action; appellants await a favorable opinion of this court to support a collateral action. They argue that we should review the case on its merits so that a damage claim may follow. We do not accept such convoluted reasoning; moreover, having failed to raise and preserve a counterclaim to the initial suit, appellants cannot now complain that one is not preserved.

The current appeal is controlled by Pa. Coal Min. Ass’n., supra; Burns Intern. supra; and Commonwealth v. One 1978 Lincoln Mark V, 52 Pa.Commw. 353, 415 A.2d 1000 (1980). The sole issue, possession, having been settled prior to this decision there is no controversy in which we may intervene. Any discussion of either the substantive or procedural issues raised would be purely academic and advisory.

Appeal dismissed.

POPOVICH, J., filed a dissenting opinion.

POPOVICH, Judge,

dissenting:

To the extent that the Majority’s ruling could be interpreted as precluding an aggrieved party/tenant from suing for “possession” of property relinquished because of “harassment” or “duress” on the part of a landlord, and, thus, effectively foreclosing his/her ability to sue for “damages” as a result thereof, I dissent.

Just as in a debtor/creditor relationship the fact that the amount owed is paid under protest does not foreclose a suit for the recoupment of the amount paid and any damages arising therefrom, likewise a tenant should not be hindered from seeking compensation in the form of damages resulting from loss of possession of property proven to be unlawfully accomplished by a landlord.

      . Appellants’ brief contains a number of the alleged missing documents. It is their contention that the landlord obstructed their attempts to complete the record. We must note that this dispute has been apparently the center of an on-going legal joust between the , parties.

      . The district justice's return to the court showed judgment for landlord and a dash in the space where the amount of damages was to be indicated. Appellants have reproduced another copy of the return indicating that judgment was against only the professional association and that the claim for damages was withdrawn without prejudice.

      . In particular, tenants refer to an action for wrongful use of civil proceedings, 42 Pa.C.S.A. § 8351. They then note that to support such cause of action a favorable completion of the case is required.

      . Appellants also overlook the fact that under Rule 1014(A) if the court decides to set aside a judgment, such relief is without prejudice.

      . We remained unpersuaded that appellants were without a means of raising a counterclaim.

      . We do not mean to condone deviation from the rules pertaining to matters originating before district justices.


author: JOHNSON, Judge:

text:
    466 A.2d 682
    Joseph E. WILLIAMS, Jr., A Minor By and Through his Natural Guardian and Parent, Joseph E. WILLIAMS, Sr., Appellants, v. Mabel LEWIS and City of Philadelphia.
    Superior Court of Pennsylvania.
    Submitted June 21, 1983.
    Filed Oct. 7, 1983.

      Jeffery L. Krain, Philadelphia, for appellants.
    Jill A. Douthett, Assistant City Solicitor, Philadelphia, for appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

On November 28, 1978, Joseph E. Williams, Jr., a minor, was walking home from school. While crossing an undeveloped parcel of land owned by one Mabel Lewis he fell and sustained injuries. Subsequently, Joseph E. Williams, Sr. filed a complaint in trespass on behalf of his son naming Lewis and the City of Philadelphia (City) as defendants. In the first count, it was alleged that Lewis was negligent in allowing her property to become a safety hazard. A second count averred that the City was negligent in knowingly allowing the Lewis property to fall into such a state of disrepair.

The City filed an answer and new matter to the complaint. It denied ownership, possession, and control of the premises. The City moved for judgment on the pleadings which was granted in favor of the City.

Judgment on the pleadings is only appropriate where no material facts remain in dispute. Pennsylvania Ass’n of State Mental Hospital Physicians, Inc. v. State Emp. Retirement Bd., 484 Pa. 313, 399 A.2d 93 (1979). Only where the moving party’s right to prevail is so clear that a trial would be a fruitless exercise should a judgment on the pleadings be entered. Nevling v. Natoli, 290 Pa.Super. 174, 434 A.2d 187 (1981).

In the current case the trial court found that the complaint was fatally defective in that it failed to aver facts that would show that the City owed a duty to the minor appellant. The Court refused to create such a duty. The court relied on Ricketts v. Allegheny County, 409 Pa. 300, 186 A.2d 249 (1962).

Ricketts is somewhat similar, factually, to the case at hand. There a child was injured while playing in a vacant house. The house had been vacated pursuant to an order of the county health department. The Supreme Court held that neither the city nor county could be liable for allowing a nuisance to be maintained within its jurisdiction, unless the governmental unit had acquired title to the property, or had contributed to or was otherwise responsible for the dangerous condition. There was no absolute duty of the city or county to abate the nuisance. The court relied in part upon the doctrine of governmental immunity.

Governmental immunity from liability for negligent conduct of a governmental unit was judicially abolished in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). There the school board was found to be negligent in supplying a piece of equipment for a vocational class. The machine was without safety devices and the school failed to provide adequate supervision of its use. Such was held to be a breach of the board’s duty to its students. The legislature has since enacted the Political Subdivision Tort Claims Act, 53 P.S. § 5311.101 et seq. (now found at 42 Pa.C.S.A. § 8501 et seq.). However, that Act is not applicable to the current case as it became effective after the current cause of action accrued. Therefore, we must determine whether the City owed a duty to appellant to protect him from the possible hazards of a vacant lot.

Appellant contends that the City had reason to know of the hazardous condition but failed to take corrective action. Such duty is claimed to have arisen from the Philadelphia Home Rule Charter (Charter) and the Philadelphia Code (Code). Finding that no such duty arose from the Charter or the Code, we affirm.

It is axiomatic that a negligence claim cannot be maintained upon facts on which the law does not impose a duty. Boyce v. United States Steel Corp., 446 Pa. 226, 285 A.2d 459 (1971); Otto v. American Mutual Insurance Company, 241 Pa.Super. 423, 361 A.2d 815 (1976). Appellant relies on Fairman v. A.A. Gallagher Corp., 11 D. & C.3d 290 (1979), aff'd per curiam, 295 Pa.Super. 595, 437 A.2d 1021 (1981), to support his claim that the city had assumed a duty to safeguard him from the hazards existing on the vacant lot.

In Fairman, a minor was injured while playing in an abandoned warehouse. The trial court found, in ruling on a preliminary objection in the nature of a demurrer, that § 5.5-1002 of the Charter and § 4-1601 of the Code had created a duty on the part of the City to protect the public from the hazards of abandoned buildings. City council was concerned over the large number of vacant industrial properties. Once the City had assumed such a duty to the public, it had assumed a duty to the individual plaintiff.

That court applied the Restatement (Second) Torts § 324A and found that a breach of such duty by the City could result in the City’s liability for the injury. If the City had knowledge of the dangerous condition, it should have taken reasonable steps to remedy it. Since the plaintiff alleged that the City was aware of both the condition of the property and the fact that children played there, a cause of action for negligence was stated.

Appellant cites to § 5.5-1002 of the Charter and §§ 4-1600 et seq., and 10-716 of the Code, as imposing a duty upon the City to alleviate dangerous conditions of the vacant lot in question.

Section 5.5-1002 of the Charter clearly pertains to the City’s powers regarding buildings and structures. The lot here in question contained no improvements. Similarly §§ 4-1600 et seq. of the Code addresses the problem of empty commercial and industrial buildings. None were present on the Lewis lot. However, § 10-716 is directed to the removal of debris from private property. Nonetheless, it is not applicable to the property in question. The City provides us with the following definition:

(9) Private premises. Any dwelling, house, building or other structure or parking lot designed or used either wholly or in part for private residential, industrial or commercial purposes, whether inhabited or temporarily or continuously uninhabitated or vacant, including any yard, grounds, walk, driveway, porch, steps, vestibule or mailbox belonging or appurtenant to such dwelling, house, building, or other structure.

Philadelphia Code § 10.201(9) (Emphasis supplied). The City contends that such definition does not include undeveloped lots which by definition are without any structure. As the definition is clear, we must agree.

In light of our above discussion, Fairman is clearly distinguishable from the facts of this case. Fairman involved a vacant warehouse which clearly was within the scope of § 5.5-1002 of the Charter and §§ 4-1600 et seq. of the Code. Here involved is a vacant lot, clearly outside of the ordinances in question. In the absence of a duty to prevent injury, foreseeability of an injury is an insufficient basis on which to allow liability to rest. Breiner v. C. & P. Home Builders, Inc., 536 F.2d 27 (3rd Cir.1976). To quote the trial court: “[appellant] has cited [no judicial precedent], which would support a general duty owed by the City to individuals injured on property privately owned.” (Slip Opinion p. 2).

Contrary to the interpretation of the Court of Common Pleas in Fairman, supra, Ricketts, supra, did hold that a municipality could not be liable for permitting a nuisance to be maintained within its jurisdiction where such municipality had not acquired title to the property, nor had contributed or was responsible for the condition. The Fairman court acknowledged that Ayala’s abolishment of immunity could not subject a government to a new liability or duty; it only removed the defense of immunity. As no duty has been shown to exist under the facts of this case we conclude the court properly granted judgment in favor of the City.

Appellant further complains that the court erred in not allowing him to amend his complaint.

The right to amend should generally be allowed where the defect in the pleadings can be cured. Puleo v. Broad St. Hospital, 267 Pa.Super. 581, 407 A.2d 394 (1979). The right to amend should not be withheld where there is some reasonable possibility that amendment can be done successfully. Otto v. American Mutual Insurance Company, 482 Pa. 202, 205, 393 A.2d 450, 451 (1978). But where there is no apparent possibility that plaintiff will be able to set forth a better case by amendment, there is no abuse of the Court’s discretion in refusing the amendment. Klein v. Raysinger, 302 Pa.Super. 248, 448 A.2d 620 (1982); Chapman v. City of Philadelphia, 290 Pa.Super. 281, 434 A.2d 753 (1981).

Appellant argues that, if permitted, he would aver additional facts which would bring the current case within the holding of Fairman. We are unpersuaded. The defect in appellant’s complaint is his failure to state the source of the alleged duty. The ordinances to which he refers us clearly are not applicable. Nor does a duty exist at common law. Ricketts, supra. We fail to see how appellant could possibly succeed at trial when he is unable to demonstrate the source of the duty. Compare Klein, supra (social host owes no duty to prevent intoxicated guest from driving); Chapman, supra (police owe no duty to provide additional protection to high crime area). Therefore we find no abuse in the court’s refusal to allow amendment.

Order affirmed.

      . The health department found the structure was unhealthy only as to its occupants. The department was under no duty to find that it was a public nuisance as it was only dangerous to trespassers.

      . § 324 A. Liability to Third Person for Negligent Performance of Undertaking
      One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
      (a) his failure to exercise reasonable care increases the risk of such harm, or
      (b) he has undertaken to perform a duty owed by the other to the third person, or
      (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
      See Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).

      . § 5.5-1002 Functions.
      The Department of Licenses and Inspection shall have the power and its duty shall be to perform the following functions:
      (a) Building Safety and Sanitation, Signs and Zoning. It shall, except as otherwise specifically provided in this charter, administer and enforce all statutes, ordinances and regulations for the protection of persons and property from hazards, in the use, condition, erection, alteration, maintenance, repair, sanitation (including the maintenance of plumbing and drainage facilities and the maintenance of sanitary conditions in housing accommodations), removal and demolition of buildings and structures or any parts thereof and the grounds appurtenant thereto, in the operation of equipment therein, and of outdoor signs. Subject to the powers and the duties of the Zoning Board of Adjustment, the Department shall enforce compliance with zoning ordinances.
      (c) Inspections. The Department shall make all inspections except as otherwise specifically provided in this charter.
      351 Pa.Code § 5.5-1002 (Emphasis supplied).

      . That section of the Building Code is entitled "Vacant Commercial and/or Industrial Buildings Found to be Public Nuisances.”

      . Phila.Code § 10-716 (Regulation of Conduct and Activity). Clearing of Litter from Open Private Premises by City.
      (1) Notice to Remove. The Department of Licenses and Inspections is authorized and empowered to notify the owner of any open or vacant private premises, or the agent of such owner, to remove and dispose of litter located on such premises. Such notice shall be sufficient if mailed to the owner at his last known address.

      . That court interpreted Ricketts as holding that governmental immunity barred the suit; the Fairman court concluded that the Ricketts court did not address the city’s or county’s respective duties. We disagree.


author: JOHNSON, Judge: McEWEN, Judge,

text:
    466 A.2d 686
    Raymond Paul SAYLOR v. Deborah J. ROSE, a/k/a Deborah J. Todaro, Appellant.
    Superior Court of Pennsylvania.
    Argued May 19, 1982.
    Filed Oct. 7, 1983.

      Daniel R. Gigler, Pittsburgh, for appellant.
    David J. Flower, Somerset, for appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from an order granting appellee, Raymond Paul Saylor, a new trial. In reviewing the decision of a trial judge to grant a new trial, we may not reverse the trial judge’s order, unless he has committed a clear abuse of discretion or an error of law which necessarily controlled the grant of a new trial. Gilligan v. Shaw, 441 Pa. 305, 272 A.2d 462 (1971); Sindler v. Goldman, 309 Pa.Super. 7, 454 A.2d 1054 (1982). Finding no abuse of discretion or error of law, we affirm.

On November 13, 1975, appellee was involved in an accident along Route 30 near Jenner Township, Somerset County, Pennsylvania. Shortly after sunset, appellee was helping to unload boats from a tractor-trailer situated on the southerly berm of the highway, when he was struck by the extended mirror on a pickup truck. The pickup truck was operated by appellant, Deborah Rose-Todaro.

Appellee commenced an action in trespass for the injuries sustained as a result of the accident. His complaint alleged inter alia that appellant was negligent “in failing to operate [her] vehicle so as to assure [that] the entire vehicle was within the roadway.”

The case was tried before a jury. At trial, one of the basic issues for the jury’s determination was the location of appellee and the pickup operated by appellant when the accident occurred. During his testimony, appellee estimated that he was six feet from the roadway when the accident occurred. This constituted the only direct reference as to appellee’s position. The Pennsylvania State Trooper who investigated the accident testified that the side of the truck from which appellee worked was located approximately five feet from the roadway; and estimated that the mirror of the pickup driven by appellant extended at least fifteen inches from the side of the truck. Other testimony from appellee’s witnesses concerning the position of trailer at which appellee worked was inconsistent. Appellant’s testimony did not indicate where appellee was located when the accident occurred, rather she testified that she steered her vehicle close to the center line after discovering that men were working on the side of the road.

After the close of testimony but prior to the trial judge’s instructions to the jury, appellee requested that the trial judge instruct the jury in accord with the following point for charge:

9. There is testimony by the defendant that her vehicle never left the highway. There is testimony that the defendant’s vehicle was equipped with western style or overhanging mirrors. If you find that the defendant drove her vehicle so close to the edge of the roadway so as to allow the overhanging or western style mirror to strike the plaintiff this is negligence on the part of the defendant and your verdict should be in favor of the plaintiff.

The point was not incorporated into his instruction. During the charge, the trial judge instructed the jury as to what it should conclude if it believed one or the other of the parties, and stated that “it need [not] just find that either [appellee] was six feet off the highway or else he was on the highway.” He instructed the jury that it could find that “the evidence puts [appellee] somewhere else in between” and “would put [appellant’s] truck somewhere else in between.” Subsequently, the jury returned a verdict for appellant.

Following the filing of post-trial motions, the trial judge granted appellee a new trial. He gave the following reason for awarding a new trial:

[T]he charge failed to inform the jury, as point 9 validly asserts or suggests, that defendant could be negligent even if her vehicle never left the highway but was driven so close to the edge of the road as to allow her long mirror to extend beyond or to “overhang” the road and to strike plaintiff whose presence she was aware of as he was standing or working at the side of the road. In view of the facts that such was an important part of plaintiff’s theory and argument, that he made a timely and specific written request for a charge upon the subject matter which was approved by the court in conference..., the trial court should have affirmed the point and covered its substance in the interest of clarifying what facts would constitute negligence and contributory negligence.

Saylor v. Rose, No. 303 Civil 1977, slip op. at 10-11 (C.P. Somerset County filed August 18, 1981).

In charging the jury, it is the duty of the trial judge to clarify the issues so that the jury may comprehend the questions they are to decide. Easton National Bank and Trust, Co. v. Union National Bank and Trust Co., 237 Pa.Super. 316, 352 A.2d 544 (1975). If he fails to clarify the issues and the application of law to the facts, a fair trial is not present. Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963); see also Randolph v. Campbell, 360 Pa. 453, 62 A.2d 60 (1948). It is obvious from a reading of the passage quoted above that the trial judge felt that absent adequate coverage of the subject matter of the requested point, the jury was not apprised of a set of circumstances relevant to their determination of whether appellant was liable for having struck appellee and was not apprised of how the law should be applied to those circumstances. In light of this inadequacy, the trial court concluded that the interests of justice required that appellee receive a new trial.

Based on the evidence presented at trial, we think point No. 9 was pertinent. The jury could reconcile the inconsistent testimony presented or, if such reconciliation is not possible, it could determine questions of credibility. Mapp v. Wombucker, 421 Pa. 383, 219 A.2d 681 (1966). In so doing, it was at liberty to believe all or part of the testimony of appellee or appellant. See e.g. Commonwealth v. London, 461 Pa. 566, 337 A.2d 549 (1975). Thus, the jury could partially believe both appellee and appellant and find that appellee, while on the berm, was struck when the mirror on appellant’s pickup extended from the road over the berm.

Since the jury could partially believe both parties, the trial judge did not commit a clear abuse of discretion or error of law when he concluded that in failing to incorporate the substance of appellee’s point in his instructions to the jury, he may have foreclosed appellee from a theory upon which the jury may have rendered a verdict in his favor. We are aware that there are other grounds upon which the jury could render a verdict against appellee. However, based on the inadequate instructions its verdict could have been founded upon the erroneous belief that it could only find for appellee if it found that appellant drove her truck off the road. This is sufficient grounds for a new trial. Cf. Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981).

Finding no abuse of discretion or error of law, we now affirm the order awarding appellee a new trial.

McEWEN, J., filed a dissenting opinion.

McEWEN, Judge,

dissenting:

The majority has provided a careful analysis as well as a most persuasive expression of view but I am convinced that the parties should here be bound by the verdict of the jury and, therefore, I most respectfully dissent.

As the majority has noted, the accident occurred just after darkness had fallen, at approximately six p.m. on a November evening, while appellee was helping to unload boats from a tractor trailer parked along the southern shoulder of a highway that was wet from rain and snow. It is undisputed that appellee was struck by a pick-up truck operated by appellant and equipped with extended mirrors. The opinion of the trial judge summarizes the testimony of each of the parties as follows:

Plaintiff testified that immediately before being struck he was standing 6 feet from the paved portion of the highway, heard the sound of gravel being disturbed, and was then struck and knocked down. Defendant testified that as she approached the area she noticed the men working along the road, that she did not realize she had struck anything until after she had passed the area when she realized she had hit something and pulled off the highway and stopped to learn what had happened. She stated that at all times her vehicle was entirely on the highway on her side of the ro^d and in her lane of traffic, near the center line.

While his scrupulous concern that the charge be fair caused the distinguished Somerset County Judge Charles H. Coffroth to overturn the verdict and order a new trial, it is my opinion that the instructions were not in the least deficient since the charge of the court covered in quite adequate fashion all of the issues which the jury was to consider.

The factual issues were described in the charge by the trial judge as follows:

As we’ve already said in essence, in substance, the plaintiff’s case is that he was about 6 feet from this highway when he was working with his back toward the highway helping to unload these boats; that he heard shale moving or being thrown or something like that—he heard shale and he turned his head and he was hit in the cheek. That caused his injury.
Now, if he was 6 feet off the highway when he was hit by this car—even by the extended mirror, which according to the testimony extended 15, or one witness said 18 or 19 inches from the truck, obviously that truck had to be off the highway or at least the mirror had to be off. If it would be 6 feet, it would clearly look like both of them— the mirror and the truck—would have had to be on the berm where he was.
He argues of course that that was negligence, that Mrs. Todaro knew this road. She knew the mirror was there. She even knew the plaintiff was there because she saw him and that this was not reasonable care under the circumstances. She should have stayed on the highway. If you would find those facts to be true, of course you could find her solely negligent.
Mrs. Todaro, on the other hand, has a rather completely different version of the event. She says that she was not at all off the highway. According to her testimony, as I understand it, she was at all times in a position on the highway when even her mirror would not have extended over the highway. So obviously if that was the ease, it would seem logical to conclude that Mr. Saylor was on the highway in order to get hit by that mirror. Obviously, if that was the case, you could hardly find Mrs. Todaro guilty of negligence, and you might find Mr. Saylor guilty of negligence.
So a great deal depends on how you find the facts, which witnesses’ testimony you accept. Now, you don’t need to just find that either Mr. Saylor was 6 feet off the highway or else he was on the highway. It is entirely possible that your judgment of the evidence would put him somewhere else in between. It is entirely possible that your judgment of the evidence would put Mrs. Toda-ro’s truck somewhere else in between.
So here you get into the problem of deciding what the facts were, where were these people when the collision occurred, because you’ve got to decide whether they used reasonable care in getting there and being there under all the circumstances.

That summary of the factual issues was preceded in the charge by a thorough review of the pertinent legal principles including quite appropriate emphasis upon the notions of negligence and contributory negligence.

The trial judge concedes in his opinion that there was no error in the charge but concluded that the omission of the subject point that had been submitted by appellee was error since the charge thereby “failed to inform the jury ... that defendant could be negligent even if her vehicle never left the highway but was driven so close to the edge of the road as to allow her long mirror to extend beyond or to ‘overhang’ the road and to strike plaintiff.” I do not agree. The charge of the court was quite satisfactory. When Judge Coffroth decided that this particular point of charge was necessary he was unfair to himself. See Kitchen v. Borough of Grampian, 421 Pa. 464, 219 A.2d 685 (1966).

The basic issue for determination by this jury was the location of the plaintiff and of the vehicle of the defendant with regard to the edge of the highway and the crucial task of the jury was to resolve the dispute in the testimony concerning that issue. Thus, it is seen that the assignment of the jury was far from complex and, in fact, would be considered to be quite fundamental. The details of the occurrence had been the subject of testimony by all those present, specifically, appellee and his companions, all of whom were engaged in unloading boats from a tractor trailer parked on the berm of the highway, as well as the appellant operator of the striking vehicle and the state trooper who investigated the accident. All of that testimony then became the subject of an address by counsel for each of the parties, which included reference to the extended mirror. As we have already noted, the applicable principles of law were satisfactorily defined by the court and the factual summary was quite complete and included a reference to the fact that the pick-up truck of the appellant had extended mirrors. It is my view that the trial judge exercised prudent judgment by failing to include the requested point for charge in his instructions since there simply was no need for the court to place special emphasis upon the issue of the extended mirror in view of the thorough summary of the factual issues that had been provided the jury by the court.

Since a careful and fair trial was conducted, the charge of the court was adequate, proper and satisfactory, and there was certainly a substantial evidentiary basis for the verdict of the jury, a new trial is not imperative. “Although the grant of a new trial will not be disturbed by us if anything appears in the record to justify it, [the reason] cited by the court below [does not] furnish any valid ground for compelling the appellant, the verdict-winner, to retry the case.” Gombar v. Schaeffer, 202 Pa.Super. 282, 284, 195 A.2d 527, 528 (1963). There is simply no reason why the verdict here should be rejected and the verdict winner be required to retry the case.

The right to a trial by a jury is zealously guarded because the benefits of a trial by jury are not simply theoretical but have through the centuries proven so real as to become self-evident. As a result, our trust in the value of the jury verdict in resolving the type of factual issue here presented—as distinguished from a verdict upon a complex question of medical or product liability—should be near absolute. The founders concluded that a band of the citizenry—peers, says the Magna Carta—is naturally suited to the task of resolving factual disputes, whether the difference in testimony be innocent or influenced by personal interest; in addition, of course, it is an obvious and certain fact that the court room cause—whether it be of an accused or of a litigant—is, if not prudently never left to the sovereign, always more wisely entrusted to the people than to the government or any of its branches.

Once we acknowledge that the value of the jury system is not mere premise but fact, it naturally follows that the verdict of a jury should be considered to be controlling and final. While it is undisputed that a safety valve is necessary and that a trial judge should be able to reject a verdict, that safety valve should be triggered only when there is a gross disparity between the verdict and the evidence or there has been gross and harmful error. Neither of those tests are here met.

It may well be that the new trial the majority agrees should be afforded this claimant will witness a verdict for plaintiff replace the verdict for defendant. Most assuredly, however, such a result will not be an effect of the addition of the few brief phrases that trial judge now wishes he had included in his charge. Rather, the verdict at the forthcoming trial is more likely to be affected by factors quite unrelated to the instructions, including such factors as improved presentation by the plaintiff or his counsel, or the presence of different counsel for the defendant or personal characteristics of dominant jurors or some other such vagary to which the cause of the prevailing party at the first trial should not be exposed nor the verdict winner be forced to submit.

The fundamental purpose of the instructions by a court is to express to the jury in general, survey fashion a basic outline of the applicable principles of law so that the jury might have the benefit of certain essential rules as the members assort the testimony, reflect upon the evidence and assemble a verdict. No one would contend that what should trouble a sophisticated student of the law would also trouble a juror; and while the instruction provided the jury is to be something more than a flask, it is not expected to resemble fine Waterford crystal. The most able of trial counsel will in a candid moment concede that the true value of the charge is the fertile field provided for assertion of error during appellate review rather than the guidance and direction sought to be supplied to the jury. If the charge of the court is to achieve the goal of assisting the jury and is not to be considered as a credit balance available for redemption in the event of an adverse verdict, then a verdict should be final, absent a gross shortcoming in the trial— specifically, as earlier noted, unless there is a gross disparity between the verdict and the evidence or there has been gross and harmful error.

In essence, I am of a mind that both the trial judge and the jury performed quite well and that, therefore, the verdict should stand.

      . We distinguish the case of Hrivnak v. Perrone, 472 Pa. 348, 372 A.2d 730 (1977). There the issue was whether or not the plaintiff had been struck by defendant’s vehicle or whether plaintiffs injuries were caused when plaintiff fell down while backing away from the vehicle. By the pleadings and proof, the jury had to decide simply whether defendant struck plaintiff with his vehicle. Here, inasmuch as it is certain appellee was struck by appellant’s vehicle, the issue was one of location and distance. Appellee’s testimony merely estimated where he was, he did not purport to be certain of the distance from the roadway when the accident occurred. Also he introduced evidence to show circumstantially where he was located by showing where the trailer at which he worked was situated from the roadway. We do not find, as in Hrivnak, that appellee’s evidence assumed a posture directly hostile to the conclusion that he was on the berm and appellant’s vehicle was on the highway.

      . See e.g. Russell v. Helms Express, 221 Pa.Super. 292, 293 A.2d 78 (1972) (cases cited therein).


author: WATKINS, Judge:

text:
    466 A.2d 691
    COMMONWEALTH of Pennsylvania v. Hubert JONES, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 9, 1982.
    Filed Oct. 7, 1983.
    Petition for Allowance of Appeal Denied Mar. 22, 1984.

      Basil G. Russin, Chief Public Defender, Wilkes-Barre, for appellant.
    Robert J. Gillespie, Jr., District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Luzerne County and involves the defendant-appellant’s appeal from a judgment of sentence of six to twenty-three (6 to 23) months imprisonment, restitution and the payment of costs imposed on defendant after he was convicted by a jury of recklessly endangering another person and criminal mischief. ■ The defendant had requested a specific finding by the jury as to the amount of pecuniary loss suffered by the victim. The jury determined the loss to be $3,000. The charges arose out of an incident occurring on June 19, 1980 when the occupants of a passing van fired several shotgun blasts into the victim’s home.

The original information charged the defendant with criminal mischief as to the pecuniary loss in excess of $500. Prior to trial the Commonwealth moved to change the pecuniary loss to $5,000 and was granted leave to do so by the court below. This changed the grading of the crime from one of a misdemeanor of the third degree to one of a felony of the third degree. Defendant claims that this change was improper and inflamed the jury against him in view of the fact that a Commonwealth appraiser testified that in his opinion the damage to the victim’s real and personal property amounted to $2,028. Pa.Rule of Criminal Procedure 229 permits an amendment to a criminal information to correct, inter alia, a defect as to the description of any property provided that the information as amended does not charge an additional or different offense. In our case the change permitted by the court did not charge an additional or different offense. It merely changed the grading of the crime. The jury’s verdict, in fact, changed the grading of the offense from a felony of the third degree to a misdemeanor of the second degree as Criminal Mischief is a felony of the third degree if the pecuniary loss is in excess of $5,000; a misdemeanor of the second degree if the loss is in excess of $1,000; and a misdemeanor of the third degree if the loss is in excess of $500; and a summary offense if the loss is not in excess of $500. See 18 Pa. C.S.A. 3304(b). Under such circumstances we cannot find that the court below committed reversible error in granting the Commonwealth’s motion nor can we find that the jury was prejudiced by the change in the information since this was done prior to trial. In Commonwealth v. Herstine, 264 Pa.Superior Ct. 414, 399 A.2d 1118 (1979), it was held that it was improper for the Commonwealth to amend an information charging a defendant with a second offense for retail theft because such would change the substantive nature of the crime and would therefore be prejudicial to the defendant. We find that case to be distinguishable from the instant case as Herstine dealt with a recidivist statute and, therefore, altered the substantive nature of the offense. The instant case does not involve a recidivist statute and merely involves a change in the value of the property damaged pursuant to the offense of criminal mischief and also because Pa.Rule of Criminal Procedure 229 permits an amendment to a criminal information to correct a defect as to the description of any property damaged in the offense. We hold that a change in the grade of a criminal mischief charge does not amount to an additional charge or to the charging of another offense.

Defendant also argues that the court below erred when it refused defendant’s motion to have the jury view the van which defendant had used in committing the offenses. We do not agree. The defendant had been permitted to introduce photographs of the van to collaborate his description thereof, the trial took place four months after the incident out of which the charges arose, and the court found that it would have been difficult if not impossible to have duplicated the conditions under which the van was observed that evening. Moreover, the only dispute over the description of the van was whether it was blue or green in color and the defendant admitted that although he described the van as “aqua blue” it could also be characterized as “green”. Furthermore, one eyewitness specifically identified the defendant as the driver of the van. Pa.Rule of Criminal Procedure 1112 provides that a trial judge may order a view by the jury in his discretion. Absent an abuse of discretion the trial judge’s decision not to allow a view, or to order the view at a time deemed proper by him, will not be overturned. Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978). Under the circumstances set forth above, we hold that the court below did not abuse its discretion when it refused defendant’s request to have the jury view the van.

Judgment of sentence affirmed.

CAVANAUGH, J., concurred in the result.


text:
    466 A.2d 693
    ESTATE OF Rebecca Roberts SHELLY a/k/a Rebecca R. Anthony, Rebecca McInnes Roberts, Rebecca McInnes Roberts Shelly, and Rebecca R. Shelly, Deceased. Appeal of ROBERTS SHELLY FOUNDATION and the Attorney General of the Commonwealth of Pennsylvania, As Parens Patriae.
    Superior Court of Pennsylvania.
    Argued May 13, 1983.
    Filed Oct. 7, 1983.
    Petition for Allowance of Appeal Denied Dec. 19, 1983.

      Lawrence Barth, Deputy Attorney General, Philadelphia and David M. Jordan, Norristown, for appellants.
    William L. Huganir, Norristown, for participating parties.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This is an appeal from the Order dated October 28, 1982 of the Court of Common Pleas, Orphans’ Court Division, of Montgomery County granting exceptions filed by the appel-lee, Rose K. Pallitto, to the adjudication of the Orphans’ Court dated June 20, 1979 wherein the Orphans’ Court had ordered the distribution of the entire estate in question to the Roberts Shelly Foundation. The appellant in this appeal, Roberts Shelly Foundation, now appeals this order.

This case has a long and complex history. On three separate occasions various issues regarding the Rebecca Shelly Estate have been heard and determined by the Supreme Court of Pennsylvania. See, Shelly Estate, 436 Pa. 430, 345 A.2d 596 (1975); Estate of Shelly, 484 Pa. 322, 399 A.2d 98 (1979) and Shelly Estate, 496 Pa. 404, 437 A.2d 936 (1981).

As briefly as possible, the history of the case is as follows. The decedent, Rebecca Roberts Shelly, died on February 16, 1971, and her estate has been in virtually continuous litigation ever since. A lawyer herself, Mrs. Shelly prepared her will on November 12, 1965, which will was finally, at the direction of the Supreme Court, probated after a later will dated in 1969 sometime was denied probate; Estate of Shelly, 484 Pa. 322, 399 A.2d 98 (1979). In the course of litigation, the Orphans’ Court of Montgomery County named Raymond Pearlstine as trustee ad litem to uphold the interest of the charitable remainderman, the Roberts Shelly Foundation. Subsequently, the Attorney General, of Pennsylvania participated in the litigation, as parens patriae, and the Roberts Shelly Foundation itself appeared with counsel.

The will of the decedent presented numerous problems. She represented herself as' “Rebecca R. Anthony”, claiming to be the “wife of Peter S. Anthony”. In fact, however, the decedent was a widow whose name was Rebecca Roberts Shelly. The fictitious “husband” was utilized by Mrs. Shelly to file fraudulent joint income tax returns over a period of years before her death, thereby making substantial savings. Mrs. Shelly, as was well developed in the prior litigation of this estate, had intense feelings about the inequity of the tax laws and the malevolence of those who administer them, and she was able to overcome both her legal training and her strong religious background in order to devise schemes to keep the Internal Revenue Service from her assets.

She provided in her will for a bequest “unto my husband, Peter S. Anthony so much of my estate as shall be equal in amount to the full Marital Deduction IN TRUST NEVERTHELESS, and I order and direct that the entire income arising therefrom, shall be paid to my said husband in quarterly payments, for and during the full term of his natural life, and I further vest in my said Husband the power to appoint this trust property, to take effect at his death.”

Decedent left the residue “unto my Husband Peter S. Anthony in trust for ... life” with the remainder to the Roberts Shelly Foundation, a private charitable foundation created by the decedent during her lifetime. Evidence established that she gave constant attention to this foundation, as a means of carrying out her charitable impulses.

There was, of course, no “husband Peter S. Anthony”, and clearly there could be no marital deduction, a concept created by the Internal Revenue Code of 1954 to permit a deduction against one’s gross estate for a proportion of that property passing as a result of death to a surviving spouse. The sine qua non of a marital deduction is a surviving spouse, and Rebecca Roberts Shelly had none.

There was an individual, a jewelry salesman named Peter Pallitto, who participated in Mrs. Shelly’s tax fraud, by signing the name “Peter S. Anthony” on joint income tax returns, but Pallitto was neither Mrs. Shelly’s husband nor Peter S. Anthony.

Since there was no marital deduction trust and since there was no “husband Peter S. Anthony”, it appeared to the trustee ad litem and the Attorney General that the Roberts Shelly Foundation was in fact the beneficiary of the entire estate. In order to make this clear, and to insure that the estate could qualify for the federal estate tax charitable deduction, a petition was filed by the trustee ad litem and the Attorney General on December 29, 1975, with the court below, requesting a citation to the Tax Division of the Department of Justice, to William L. Huganir, Esquire, then attorney for the contesting heirs at law, and to Rose K. Pallitto, surviving spouse and executrix of the estate of Peter Pallitto, who had died June 4, 1973, to show cause, when the will of decedent should be probated, why that will should not be interpreted, modified and reformed to devise and bequeath the estate of Mrs. Shelly to the foundation in such form as to qualify for the charitable deduction.

Notice of the proposed filing of this petition was sent to the respondent, Rose K. Pallitto, prior to its filing, on December 8, 1975, and after the citation was granted, on December 31, 1975, the citation and petition were again sent to her by certified mail, return receipt requested. Both Rose K. Pallitto and her Attorney Elias Naame, named as respondents, received these notices, and neither made any answer whatever.

On January 30, 1976, the return day for the citation, the petitioners made the return of service and requested, since the question of probate was then yet unresolved, that the court defer a final decree on the petition until a will was actually probated.

On March 14, 1979, the Supreme Court of Pennsylvania affirmed the decree of the court below directing probate of the will of Rebecca Roberts Shelly dated November 12, 1965, and on April 10, 1979, the Supreme Court denied a motion for reargument. On April 20, 1979, the Register of Wills of Montgomery County probated the November 12, 1965, will, granting letters of administration, c.t.a., to American Bank & Trust Co., of Pa., the designee of the Roberts Shelly Foundation.

In the meantime, Continental Bank, administrator penden-te lite, filed its third (and presumably final) account, which was called for audit before the Honorable Kendall H. Shoyer, specially presiding, on June 5, 1979. In the interim, William L. Huganir, Equire, erstwhile attorney for the heirs at law since 1972, now appeared at the audit as counsel for Rose K. Pallitto.

At the audit, counsel for the trustee ad litem suggested to the auditing judge that it was then appropriate and timely to enter a final decree on the petition of December 29, 1975, since a will had been probated. Mr. Huganir, now representing Rose K. Pallitto, though present, made no objection to or comment upon that request in open court, just as neither Rose K. Pallitto nor her then attorney ever filed any response to the petition in question after service upon them in January, 1976, up to the time of entry of the decree.

On June 20, 1979, the Orphans' Court Division, Court of Common Pleas of Montgomery County, entered the order by which “the will of decedent of November 12, 1965, is hereby interpreted, modified and reformed to provide for the entire estate of the decedent being bequeathed outright to the Roberts Shelly Foundation, there being no valid intervening life estate, thereby qualifying for a charitable deduction for federal estate tax purposes under the Internal Revenue Code.”

Rose K. Pallitto duly appealed that order to the Supreme Court of Pennsylvania, as of No. 295 January Term, 1979. Following submission of briefs, the record, and oral argument, the Supreme Court of Pennsylvania on December 17, 1981, entered the following per curiam order: “Decree affirmed. See Shelly Estate, 484 Pa. 322, 399 A.2d 98 (1979); Shelly Estate, 436 Pa. 430, 345 A.2d 596 (1975). Appellant to pay costs.” Shelly Estate, 496 Pa. 404, 437 A.2d 936 (1981).

On February 12, 1982, following and in accordance with the decree of the Supreme Court of Pennsylvania of December 17, 1981, the auditing judge confirmed the account of Continental Bank, administrator pendente lite, and issued an adjudication in which it was held that the claim of Rose K. Pallitto as executrix or as surviving spouse “to any part of the Shelly estate has been definitively foreclosed.” The adjudication then went on to order distribution, after payment of costs, counsel fees and administrator’s commissions, to the administrator c.t.a. and to the charitable nominee of the Roberts Shelly Foundation.

Exceptions were filed to this adjudication by Rose K. Pallitto, executrix of the estate of Peter Pallitto, deceased, and on October 28, 1982, the auditing judge issued an opinion and order, sustaining the exceptions, holding that he had erred when he signed the decree of June 20, 1979 (the final decree which was affirmed by the Supreme Court of Pennsylvania on December 17, 1971). The Roberts Shelly Foundation, the sole beneficiary of the estate, and the Attorney General, as parens patriae, then took a timely appeal to the Superior Court of Pennsylvania from that opinion and order.

In Estate of Shelly, 484 Pa. 322, 399 A.2d 98 (1979), Mr. Justice Roberts pointed out that 20 Pa.C.S.A. 101, et seq., Section 2514(10) of the Decedents, Estates and Fiduciaries Code “provides that a gift that is contrary to law fails and passes instead to the residuary beneficiary under decedent’s will.” Justice Roberts further stated that “decedent’s clearly expressed intention was to benefit the charitable Roberts Shelly Foundation as residuary beneficiary.”

In Shelly Estate, 496 Pa. 404, 437 A.2d 936 (1981), the Supreme Court affirmed the adjudication of the lower court of June 20, 1979. The appellee, Rose K. Pallitto, had appealed to the Supreme Court and in its Per Curiam Order, it referred to its earlier decisions with regard to this matter. Thus, it is clear that the Supreme Court’s Per Curiam Order of December 17, 1981 is dispositive of the instant appeal. As such, the court below erred when it misconstrued the effect of the said Supreme Court decision.

Therefore, we find that the Supreme Court decision of December 17, 1981 at 496 Pa. 404, 437 A.2d 936 (1981) disposes of the issues raised in the instant appeal.

The order of October 28, 1982 in the lower court sustaining the appellee’s exceptions is vacated; the Adjudication dated June 20, 1979 is reinstated; and the case is remanded to the court below for proceedings consistent with this opinion. Jurisdiction is relinquished.


text:
    466 A.2d 696
    COMMONWEALTH of Pennsylvania v. Stuart S. CARLITZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 19, 1983.
    Filed Oct. 7, 1983.

      Louis Lipschitz, Philadelphia, for appellant.
    Patricia Ann Zaffaraño, Assistant District Attorney, Nor-ristown, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   WATKINS, Judge:

This is a direct appeal from convictions of burglary, criminal attempt and criminal conspiracy. In a remarkably able presentation, the appellant, Stuart S. Carlitz, argues that the court below erred in failing to charge the jury on withdrawal from the conspiracy; that trial counsel was ineffective for failing to present the testimony of a known, available and corroborative witness; that the evidence was insufficient to sustain the verdict warranting dismissal; and finally, that the verdict was contrary to the weight of the evidence.

The significant issues are the sufficiency of the evidence, assuming this point was preserved below or may now be presented because trial counsel was ineffective in failing to preserve it and whether the verdict was contrary to the weight of the evidence. Because of the importance of corroboration to these issues, the failure to present the known, available and corroborative witness takes on added significance.

In summary, we conclude that the withdrawal defense lacked merit, that a sufficient charge on withdrawal was given, that any defect therein was waived and that such waiver did not constitute ineffective assistance of counsel. In addition, while troubled by the verdict, we conclude that the evidence was barely sufficient to allow a jury to return a verdict of conviction and was not against the weight of the evidence. Finally, we conclude that the failure of defense counsel, given the particular characteristics of this case and the importance of corroboration in assessing even the sufficiency of the evidence, to present a known, available and corroborative witness favorable to Carlitz was, if the witness and her testimony were known to counsel, ineffective assistance warranting a new trial. If such witness or her testimony was unknown to counsel, we direct the trial court to hold an evidentiary hearing to determine whether counsel’s assistance was or was not ineffective.

Before exploring these matters in detail, we first state the facts of the case, viewed as we must, in the light most favorable to the verdict winner, the Commonwealth. Commonwealth v. Sinwell, 311 Pa.Superior Ct. 419, 457 A.2d 957 (1983); Commonwealth v. Barnes, 310 Pa.Superior Ct. 480, 456 A.2d 1037 (1983).

Carlitz was owed a debt by one Christopher Kershner. About a week earlier, Carlitz saw Kershner at a friend’s house and Kershner invited Carlitz to stop over to see Kershner’s one-year-old baby. Kershner told Carlitz to stop by on a Monday, as this was probably the best time to catch him at home.

On Monday, April 12, 1982, at about “noontime” Kersh-ner was at home in the upstairs watching television with his one-year-old daughter, when he heard a knock at the door. He didn’t answer, however, “because you never know who it is.” Instead of answering, Kershner looked out the bathroom window overlooking his driveway and saw a car he did not recognize. “(I)t was a Chevrolet, it was sort of minty-lime green, it’s an unusual color.” Kershner next testified that the lime green automobile then pulled out of the driveway.

About twenty minutes later, the car returned, and then again pulled out of the driveway. “After it pulled out, I heard a noise downstairs; it was a shook-type noise.” Kershner then called the police, who arrived and apprehended appellant’s alleged co-conspirator (hereinafter referred to as Berk) within a very short period of time. While nothing was taken, “several drawers were pulled out and a cabinet was opened.”

Appellant was not apprehended at the scene of the crime. Rather, at about 12:45 P.M., a “short” distance from the scene of the crime, a police officer in an unmarked car spotted the lime-green Chevrolet moving in what the arresting officer called a “circling pattern”. Carlitz was the driver of this vehicle which was then stopped and he was arrested.

A search of the trunk of this car was later conducted and a single left-handed black glove was found. Earlier, the right-handed mate to this glove had been found in Berk’s pants pocket when he was arrested. Both of these gloves admittedly belonged to Carlitz.

The Commonwealth also presented the testimony of Berk. Berk, however, was an admitted drug addict and required methadone maintenance to control his habit. Moreover, Berk admitted that he was, to use his own phrase, “in a state of altered consciousness” for about two days prior to and during the events sub judice. Further, while Berk had testified that he had not taken any pills the day he was testifying, there was direct and uncontradicted evidence that Berk was on drugs while testifying. Also, Berk himself admitted that the break-in was a “spur of the moment thing”, thus negating the conspiracy and agreement to which Berk also testified. Finally, Berk could not point to a single thing Carlitz ever said in agreeing to the alleged criminal acts. Rather, only Carlitz’s actions, as perceived by an admitted drug addict at the time in a “state of altered consciousness” is presented as evidence of Carlitz’s agreement to the alleged conspiracy.

Appellant contended that he had gone to the Kershner home only to collect an admittedly owed debt and had made no agreement to violate any law, with Berk or otherwise.

The appellant claims that the court failed to instruct the jury sufficiently with regard to his defense of withdrawal from any conspiracy. In particular, when at the Kershner home the second time, and when no one had answered the door and Carlitz realized that Berk was attempting to break in, Carlitz testified that he then said to Berk, “What the hell are you doing?” and Berk responded: “I’m going in.” Then Carlitz said, “Well, I’m getting out of here, I won’t have nothing to do with this.” Carlitz testified that he then got in his car and drove away.

Were the facts testified to believed, this defense lacked merit. We have held that in order for a withdrawal from a conspiracy “to be legally sufficient, it must occur before the commission of the crime becomes so imminent that avoidance is out of the question.” Commonwealth v. Laurin, 269 Pa.Superior Ct. 368, 409 A.2d 1367 (1979). In this case, the crime was in progress at the time Carlitz allegedly attempted his withdrawal. That is clearly too late.

Thus, the withdrawal defense, as a matter of law, lacked merit. It follows, of course, that any charge on a meritless defense was sufficient as far as the defendant-appellant is concerned.

Finally, it appears that trial counsel made a conscious decision as a matter of trial strategy not to push for any further charge. Any defect in the charge given was thus waived and that waiver was not ineffective assistance of counsel for lack of prejudice to Carlitz.

With regard to the sufficiency of the evidence, we find ourselves much in the same situation as the court in Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976). The witness in that case was also an alleged co-conspirator and was mentally deranged. In this case, similarly, the alleged co-conspirator witness was “in an altered state of consciousness.” The difficulty with sustaining this ground for objection to the sufficiency of the evidence is that in this case, as in Farquharson, supra, there was independent corroboration of the events as testified to by the mental patient or drug addict respectively. In particular, Berk’s grandmother testified that Carlitz was present when Berk came to her home to secure the screwdrivers and when Berk said, in Carlitz’s presence, that he (Berk) was “taking them because I have to fix something at Stuart’s house.” The implication that Carlitz was aware of Berk’s possession of the screwdrivers is entirely contrary to Carlitz’s version of this episode which, in turn, tends to support Berk’s version.

The second corroborating item of evidence is the glove admittedly belonging to Carlitz which, according to Berk, was given to Berk by Carlitz “for the purpose of not leaving any fingerprints.”

Since a mentally deranged person’s testimony was sufficiently corroborated in Farquharson, and since there is corroboration of the testimony of the drug addict in this case, it is tempting to conclude that like results should follow without more. However, such a conclusion is, at least, premature since the unresolved question is whether the above two items sufficiently corroborated Berk’s testimony—and sufficiently not just to allow a jury to conclude that Berk’s version was perhaps as likely or a little more likely true than Carlitz’s, but further to allow a jury to conclude that Carlitz had agreed—had become part of the conspiracy—“beyond a reasonable doubt”.

There is no question that this is a heavy burden—and designedly so. The burden of proving each element “beyond a reasonable doubt” is of constitutional dimension. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). This heavy burden of proof implements the also constitutionally-mandated presumption of innocence.

Nonetheless, it is the jury, and not this appellate court which must be convinced “beyond a reasonable doubt”. We are authorized to reverse only verdicts which must have been based on conjecture or speculation, Farquharson, for lack of pertinent evidence in the record.

It can hardly be said that Reba Berk’s testimony corroborating Carlitz’s knowledge of the screwdrivers (which were in fact later used by Berk to break in and which Carlitz vehemently denied any knowledge at all of) left the jury to speculation alone. We thus conclude that the evidence presented was barely sufficient to permit a jury to conclude that Carlitz conspired with Berk.

We come then to the question whether the verdict was against the weight of the evidence. Carlitz bears a heavy burden in sustaining such contentions. As we noted in Commonwealth v. Hennemuth, 294 Pa.Superior Ct. 360, 439 A.2d 1241 (1982):

Before a new trial can be awarded on the grounds that the verdict is against the weight of the evidence, it must appear from the record that the verdict was so contrary to the evidence as to shock one’s sense of justice and to make the award of a new trial imperative, so that right may be given another opportunity. Commonwealth v. Barnhart, 290 Pa.Superior Ct. 182, 185, 434 A.2d 191, 192 (1981).

While we confess that we are troubled by the verdict in this case, we cannot conclude that this heavy burden has been discharged without substituting our own judgment for the jury’s, a course plainly beyond our reach.

That brings us to the fourth and final issue in this case, to wit: defense counsel’s failure to call an allegedly known and available witness who would have corroborated, at least in part, appellant’s version of the events by testifying that Berk had admitted to her that Carlitz had had nothing to do with the burglary and that Berk had entered the Kershner home on impulse while under drug influence and without any idea of where he was or what he was doing.

Corroboration, in this particular case, was extraordinarily important. Berk might well have been altogether unbelievable without the corroboration provided by his grandmother and the glove. See Farquharson, supra.

As such, the failure to call Carlitz’s corroborating witness left his testimony alone arrayed against both the circumstantial and direct testimony presented by the Commonwealth. If Carlitz’s attorney knew of this witness, we hold that failure to call her was ineffective assistance of counsel. In terms of the test of Commonwealth ex rel Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), there simply could not be, in our view, any rational basis for failing to aid Carlitz’s credibility when credibility was the determining factor in the case.

Whether counsel for Carlitz in fact knew of this evidence or not is not reflected in the record. The Commonwealth therefore argues that we cannot reach such an issue because it was Carlitz’s burden to put such evidence into the record, citing Commonwealth v. Ross, 273 Pa.Superior Ct., 67, 416 A.2d 1092 (1979). When, however, the charge is ineffective assistance of counsel, such a record can hardly be made while the case is in the care of the allegedly ineffective counsel. We have many times noted that a defendant is only obliged to raise claims of ineffective assistance of counsel at his first opportunity with counsel different from that allegedly ineffective. See Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). As applied to this case, the proper rule was well-stated in Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847 (1977):

Where, on the other hand, it is impossible to tell from the record whether or not the action of trial counsel could have had a rational basis, the appellate court will vacate the judgment, at least for the time being, and remand for an evidentiary hearing at which trial counsel may state his reasons for having chosen the action taken.

In this case, given the peculiar value of corroboration, we hold that if trial counsel knew of Debby Lane’s corroborative testimony, a new trial must be awarded. If not, the trial court on remand will be free to determine whether counsel was ineffective or not, for example, in investigating for witnesses.

Judgment of sentence vacated; and the case remanded to the court below for an evidentiary hearing. Jurisdiction is not retained.

      . This issue was preserved. Commonwealth v. Holmes, 315 Pa.Superior Ct. 256, 461 A.2d 1268 (1983.)

      . 1 Wharton’s Criminal Evidence, Section 11 at 16.

      . In Commonwealth v. Azim, 313 Pa.Superior Ct. 310, 459 A.2d 1244 (1983), we reviewed at some length a similar situation in which the driver claimed that he was only hired to drive and made no agreement sharing any criminal purposes. We noted: Among those circumstances relevant to proving conspiracy are association with alleged conspirators, knowledge of the commission of the crime, presence at the scene of the crime, and, at times, participation in the object of the conspiracy. Of these four circumstances, three are plain by admission on this record.

      . We do not decide that it would be ineffective to fail to find such a witness. If diligent efforts were made to locate pertinent evidence, the failure to locate all of it would not be ineffective assistance of counsel. Commonwealth v. Bailey, 480 Pa. 329, 390 A.2d 166 (1978).


author: LIPEZ, Judge:

text:
    466 A.2d 701
    James V. SANDUTCH, Appellant, v. Matthew FARRELL, Chester B. Muroski, Patrick J. Toole, Paul J. Farrell, Mr. Pearson and James Gelb.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1982.
    Filed Oct. 7, 1983.

      James V. Sandutch, in propria persona.
    Chester B. Muroski, District Attorney, in propria persona.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   LIPEZ, Judge:

This is an appeal by a private criminal complainant from an order in which the court below quashed proceedings under Rule of Criminal Procedure 133(B)(3)(h), which permits the complainant to file a private criminal complaint with the common pleas court if it has been disapproved by the district attorney. Since the court below quashed the proceedings on an incorrect procedural ground, we vacate the order and remand for a determination on the merits of whether the district attorney abused his prosecutorial discretion in disapproving the private criminal complaints in this case.

Complainant followed the proper procedure below, first submitting his six private complaints to the district attorney for his approval or disapproval, as required by Rule of Criminal Procedure 133(B)(1). After complaints were disapproved, complainant filed them in common pleas court, as provided in Rule 133(B)(3)(ii).

The court below quashed the proceedings, holding that under Rule of Criminal Procedure 21, complainant should have brought his private criminal complaints to a magistrate, rather than the district attorney. Rule 21, however, only determines the magisterial district in which venue is appropriate in a criminal proceeding. In the case of a private criminal complaint, there is no criminal proceeding to bring before the magistrate until the complaint is approved, either by the district attorney or by the court.

Since the district attorney declined to prosecute here, there was not yet any question of the proper magisterial district under Rule 21. The district attorney’s refusal to prosecute was properly brought before common pleas court for its review under Rule 133(B)(3)(ii). Therefore we shall vacate the order quashing the proceedings, and remand for the court to determine whether the district attorney abused his discretion in refusing to prosecute.

Order vacated, and case remanded with directions. Jurisdiction relinquished.

      . We must reject the Commonwealth's contention that the appeal should be quashed as interlocutory. Complainant has plainly been put out of court with respect to the right conferred by Rule 133(B)(3)(h), to have common pleas court review the district attorney’s refusal to prosecute.


author: PER CURIAM:

text:
    466 A.2d 702
    COMMONWEALTH of Pennsylvania v. Robert JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 27, 1983.
    Filed Oct. 7, 1983.

      John J. Brier, Scranton, for appellant.
    Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   PER CURIAM:

Appellant contends that the sentence imposed by the court below was excessive. We cannot reach the issue, however, because the appeal was not timely filed.

The relevant facts are as follows: appellant entered a guilty plea to a charge of burglary, 18 Pa.C.S.A. § 3502, following which he was sentenced to a prison term of two (2) to four (4) years on December 9, 1981. On December 15, 1981, appellant filed a petition for reconsideration of sentence. The court below denied the petition on January 21, 1982. On February 12, 1982, appellant filed this appeal from the order denying the petition for reconsideration. No direct appeal from the judgment of sentence was ever taken.

This case is controlled by Commonwealth v. Wilkinson, 260 Pa.Super. 77, 393 A.2d 1020 (1978). The defendant in that case filed no direct appeal from the judgment of sentence which was entered on January 24, 1977, but instead on February 23, 1977, filed a petition for reconsideration of sentence. That petition was dismissed on March 15, 1977, and defendant then filed an appeal therefrom on March 17, 1977. Our court quashed the appeal, noting that an appeal to this court must be filed within thirty days of the entry of the appealed order. Pa.R.App.P. 903(a). Specifically, the court held that the appeal was not properly before it because “... a petition for reconsideration does not extend the time for appeal from a judgment of sentence.” Commonwealth v. Wilkinson, supra, 260 Pa.Superior Ct. at 79, 393 A.2d at 1021. See in accord, Commonwealth v. McCarthy, 296 Pa.Super. 142, 442 A.2d 698 (1981); Commonwealth v. Thompson, 277 Pa.Super. 267, 419 A.2d 765 (1980).

In addition, the comment to Pa.R.Crim.P. 1410 states that, “... [T]he mere filing of a motion for modification of sentence and the court’s scheduling of a hearing on the motion do not affect the running of the thirty-day period for filing a timely notice of appeal, and the need for the defendant to file his appeal (both as to the merits of the case or as to the sentence) within that period.”

Accordingly, the appeal is quashed.


text:
    466 A.2d 703
    COMMONWEALTH of Pennsylvania v. John F. NOLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 2, 1983.
    Filed Oct. 7, 1983.
    Petition for Allowance of Appeal Granted Feb. 3, 1984.

      Mitchell S. Strutin, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CAVANAUGH and WIEAND, JJ.
   PER CURIAM:

John Nole was convicted of murder in the first degree, robbery, burglary and carrying a concealed deadly weapon. A sentence of life imprisonment was affirmed by the Supreme Court. Commonwealth v. Nole, 448 Pa. 62, 292 A.2d 331 (1972). A subsequent petition for relief under the Post Conviction Hearing Act was dismissed after a counselled hearing, and the dismissal order was affirmed on appeal. Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975). A second P.C.H.A. hearing was filed pro se and dismissed without hearing or the appointment of counsel. No appeal was taken. A third P.C.H.A. petition was then filed and again dismissed without the appointment of counsel. Thereafter a timely appeal was filed on Nole’s behalf by counsel who has now requested that the matter be remanded so that an amended P.C.H.A. petition can be filed.

We are constrained to agree that a remand is necessary. Under the decided cases, a petition for post conviction relief may not be dismissed summarily without counsel unless a previous petition involving the same issue or issues has been finally determined adversely to the petitioner in a counselled proceeding or one in which he knowingly waived the right to counsel. Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981); Commonwealth v. O’Nealel, 315 Pa.Super. 1, 461 A.2d 318 (1983); Commonwealth v. Cochran, 261 Pa.Super. 236, 396 A.2d 375 (1978). See also: Pa.R.Crim.P. 1503, 1504. The issues which appellant wishes to raise appear not to have been litigated in prior, counselled proceedings.

Reversed and remanded to permit counsel to file an amended P.C.H.A. petition. Jurisdiction is not retained.


text:
    September 2, 1983.
    466 A.2d 706
    Anthony v. Anthony, Appellant.
    Submitted April 28, 1983.
    John H. Moore, for appellant; W. Gustave McGeorge, for appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   Affirmed.


text:
    466 A.2d 706
    Commonwealth v. Blackwell, Appellant.
    Submitted May 18, 1983.
    Mark S. Greenberg, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 706
    Commonwealth v. Campbell, Appellant.
    Submitted January 6, 1983.
    Benjamin Lerner, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   The judgment of sentence for simple assault is vacated. The judgment of sentence of ten to twenty years for rape is affirmed.

BECK, J., filed a memorandum concurring statement.


text:
    466 A.2d 707
    Commonwealth v. Clanton, Appellant.
    Submitted June 17, 1983.
    Stephen R. Lacheen, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 707
    Commonwealth v. Edney, Appellant.
    Submitted April 12, 1983.
    Harold Diamond, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, ap-pellee.
    Before HESTER, MONTEMURO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 707
    Commonwealth v. Jackson, Appellant.

      Submitted May 20, 1983.
    Stanley P. Stern, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   Affirmed.


text:
    466 A.2d 707
    Commonwealth v. Martin, Appellant.
    Petition for Allowance of Appeal Denied Feb. 8, 1984.
    Submitted February 3, 1983.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 708
    Commonwealth v. Owens, Appellant.

      Submitted February 9, 1983.
    Edward Guido, Public Defender, for appellant; Theodore B. Smith, III, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   Order affirmed.

BROSKY, J., concurred in the result.


text:
    466 A.2d 708
    Commonwealth v. Smyth, Appellant. Commonwealth v. Donohue, Appellant.
    Argued May 4, 1983.
    John G. McDougall, for appellants; A. Sheldon Kovach, Assistant District Attorney for Commonwealth, appellee.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   Judgments of sentence affirmed.


text:
    466 A.2d 708
    Commonwealth v. Troche, Appellant.
    Petition for Allowance of Appeal Denied Mar. 2, 1984.

      Submitted June 16, 1983.
    Clifford B. Cohn, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Curtis C. Carson, Jr. is affirmed.


text:
    466 A.2d 709
    Commonwealth v. Woods, Jr., Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.
    Argued April 28, 1983.
    Raymond Harry Bogaty, Assistant Public Defender, for appellant; James P. Epstein, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 709
    Commonwealth v. Young, Appellant.

      Submitted February 3, 1983.
    Norris E. Gelman, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   Order affirmed.


text:
    466 A.2d 709
    Commonwealth ex rel. Scott v. Scott, Appellant.
    Argued June 15, 1983.
    John A. Pro-doehl, Jr., for appellant; David E. Auerbach, for appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   Affirmed.


text:
    466 A.2d 709
    Gordon, Appellant v. Gordon.
    Argued February 23, 1983.
    John Wesley Jordan, IV, for appellant; James H. Joseph, for appellee.
    Before SPAETH, MONTEMURO and MONTGOMERY, JJ.
   Order affirmed.


text:
    466 A.2d 710
    Schaefer G.M.C. Truck Sales v. Rubright, Appellant.
    Submitted April 26, 1983.
    Philip P.G. Lope, for appellant; Douglas A. Campbell, for appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   Order affirmed.


text:
    466 A.2d 710
    Wood, Appellant v. Grace.
    Argued June 1, 1983.
    William H. Lamb, for appellant; Henry A. Stein, for appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   Orders affirmed.


text:
    September 9, 1983.
    466 A.2d 710
    Butera, Appellant v. New England Mut. Life Ins. Co. Caro, Appellant v. New England Mut. Life Ins. Co.
    Submitted June 9, 1983.
    Alexander J. Pentecost, for appellants; James David Obermanns, for appellee.
    Before CERCONE, P.J., SPAETH and HESTER, JJ.
   Judgments affirmed.


text:
    466 A.2d 711
    Commonwealth v. Badman, Appellant.
    Petition for Allowance of Appeal Denied Feb. 3, 1984.
    Submitted March 23, 1983.
    Raymond J. Lobos, for appellant; Robert Henry Slivinski, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and HOFFMAN, JJ.
   Order affirmed.


text:
    466 A.2d 711
    Commonwealth v. Brown, Appellant.
    Submitted May 19, 1983.
    Edward V. Schulgen, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 711
    Commonwealth v. Claggett, Jr., Appellant.
    Submitted March 23, 1983.
    James Lee Goldsmith, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., CIRILLO and HOFFMAN, JJ.
   Order affirmed.