author: HESTER, Judge: POPOVICH, Judge,

text:
    465 A.2d 1301
    COMMONWEALTH of Pennsylvania v. Richard KELLY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1983.
    Filed Sept. 23, 1983.
    Petition for Allowance of Appeal Denied Feb. 1, 1984.

      Stuart M. Wilder, Assistant Public Defender, Doylestown, for appellant.
    Michael J. Kane, District Attorney, Doylestown, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

Appellant was charged with 1) kidnapping , 2) felonious restraint, 3) simple assault, 4) aggravated assault, 5) indecent assault, 6) involuntary deviate sexual intercourse , 7) indecent exposure , 8) rape, and 9) recklessly endangering another person. A jury convicted appellant of all the charges on October 28, 1980. Subsequently, appellant filed timely post-verdict motions. These motions were denied with the exception of appellant’s Motion in Arrest of Judgment as to the aggravated assault conviction which was granted. Appellant was sentenced to a period of incarceration of not less than seven (7) nor more than twenty (20) years on each offense, each period to run concurrently with all others.

Appellant raises three (3) issues on appeal: 1) whether the Commonwealth proved that the court had jurisdiction to try the offenses of rape, involuntary deviate sexual intercourse, indecent exposure, and indecent assault; 2) whether the assistant district attorney’s closing argument denied the appellant a fair trial; and 3) whether the court erred in its charge to the jury on jurisdiction.

The facts of the case are as follows:

On November 22, 1979, at approximately 11:00 p.m., the sixteen (16) year old victim, an employee of the Beehive Restaurant, attended a social gathering at the home of a co-worker, Ann White. Appellant, also a co-worker, arrived at the gathering at approximately 1:30 a.m.

At approximately 2:00 a.m., the victim requested that appellant drive her home and he agreed. Shortly after leaving the White residence, appellant pulled out a gun, locked the passenger door, pointed the gun at the victim’s head and ordered her to the floor of his car. Appellant then drove fifteen (15) or twenty (20) minutes and stopped in a wooded area, unfamiliar to the victim.

Appellant then slapped the victim, told her to remove her clothing, and forced her to perform oral sex. The gun was pointed at the victim’s head during the incident. At one point, both the appellant and the victim left the car to relieve themselves. While outside the car, the appellant, who still had the gun pointed at the victim, showed her magazines depicting oral sex and told her to imitate the poses. Appellant also threatened to break her finger if she failed to cooperate.

Appellant continued to force the victim to have oral sex for the remainder of the night. At daybreak, he ordered her to get dressed; he then drove a few yards to an abandoned building. Inside the building, the appellant again showed the victim the magazine. At this point, sounds resembling gunshots were heard and the appellant told the victim to get back into the car. She was told to lie back in the reclining seat so she was unable to see where the appellant was driving.

Appellant drove around for a period in excess of an hour, eventually stopping in a cornfield. Appellant then forced the victim to again perform oral sex. The victim began crying and requested that she be permitted to go home. Appellant then emptied the bullets out of the gun, placed it in the back of the car and drove to a convenience store. While pulling into the store’s parking lot, the appellant was involved in a traffic accident. Appellant instructed the victim not to tell anyone of the incident. Following the accident, he permitted her to call her parents. Her parents, who had contacted the police regarding the victim’s disappearance, arrived with the police in response to the victim’s call. Appellant was then arrested.

Regarding appellant’s first issue, appellant asserts that the Commonwealth did not prove that the lower court had jurisdiction to try the offenses of rape, involuntary deviate sexual intercourse, indecent exposure, and indecent assault. Appellant specifically contends that even if The Journey Act, 19 P.S. § 525, is applicable, the specific facts of the case render it inapplicable. First, we will consider whether The Journey Act is still in effect in Pennsylvania.

The Journey Act, 19 P.S. § 525 (1964), provides in relevant part:

“In order to obviate the difficulty of proof as to offenses committed during journeys from place to place, in any indictment for felony or misdemeanor committed on any person or on any property upon any stage coach, wagon, railway car or other such carriage whatever employed in any journey, it shall be sufficient to allege that such felony or misdemeanor was committed within any county or place through any part whereof such coach, wagon, cart, car or other carriage shall have passed in the course of the journey during which such felony or misdemeanor shall have been committed; ... and every such felony or misdemeanor .. shall and may inquired of, tried, determined and punished in the county or place within which the same shall be so alleged to have committed in the same manner as if it had actually been committed therein.”

However, The Journey Act was repealed on June 27, 1980, under the authority of the Act of April 28, 1978, (known as The Judiciary Act Repealer Act), and replaced by 42 Pa.C.S.A. § 1722(a)(1). Section 1722, entitled, “Adoption of Administrative and Procedural Rule” of the Judiciary Act of 1976 does not address the question of jurisdiction over offenses committed during journeys. Therefore, we are presented with a situation in which no general rules have been prescribed with respect to a repealed statute.

In 42 Pa.C.S.A. § 20003(b), entitled “Cross Reference and Interpretation” under The Judiciary Act Repealer Act, the legislature expressly provides for the situation wherein there are no general rules with respect to a repealed statute, by prescribing that the practice and procedure under the repealed statute are to be continued in full force and effect as part of the common law of the Commonwealth until such rules are promulgated.

We are of the opinion that, pursuant to 42 Pa.C.S.A. § 20003(b), the practice and procedure under the repealed Journey Act continues as part of our common law and is applicable to the jurisdiction question in the present case.

We must now consider whether the facts of this case were sufficient under The Journey Act to confer jurisdiction in the lower court over the offenses of rape, involuntary deviate sexual intercourse, indecent exposure, and indecent assault

The victim testified that she was kidnapped in Bucks County when appellant, shortly after she entered his car, pulled a handgun, locked the passenger door, and told the victim to “get down on the floor.” Appellant then drove to a wooded area, approximately fifteen (15) to twenty (20) minutes away from the point of the abduction, and forced the victim to perform oral sex upon him in the car. Thus, the offenses of rape, involuntary deviate sexual intercourse, indecent exposure, and indecent assault were clearly within the purview of The Journey Act. See Commonwealth v. Hainds, 448 Pa. 67, 292 A.2d 337 (1972); Commonwealth v. Ruby, 240 Pa.Super. 377, 367 A.2d 1100 (1976); Commonwealth v. Stefanowicz, 133 Pa.Super. 501, 3 A.2d 22 (1938); Commonwealth v. Brown, 71 Pa.Super. 575 (1919).

Appellant next contends that the assistant district attorney engaged in prosecutorial misconduct in his closing argument on the basis of two (2) statements. One statement was as follows:

“Ladies and gentlemen, a sixteen year old girl came to this courtroom and she told you what your common sense will tell you had to be the most humiliating testimony that she could ever be forced to tell you. As a matter of fact, she wasn’t forced to tell you, she came here and did it on her own and she told you what the events that occurred back in November of 1979 were. Think about that when you’re judging the credibility.”
* He * * * *
“She didn’t say it might have happened that way. She said there was a gun and Mr. Kelly forced her to do it. How long did it go on? It went on all evening, again, why ladies and gentlemen would someone make up a story in that much detail involving that much humiliation and coming and telling you that, putting themselves on the stand and subjecting themselves to that? Your common sense tells you, it tells you she was truthful and she was open and that when she said she was forced to go to the spot at gunpoint, that’s what happened and no amount of cross-examination about how many drinks somebody how [sic: had] or how much time it took to get to a particular place is going to change that. She identified Mr. Kelly as the man who did this and she described the gun to you.”

In general, a prosecutor is free to argue the reasonable inferences supported by the record. Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976); Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976). Also, it is clear that the prosecution may, in closing argument, attempt to meet the arguments made by defense counsel in his summation. Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979).

In the present case, the remarks were in response to defense counsel’s statements, in his closing, which were attempting to show that the victim’s testimony was suspect and that “her account in this case might not be all that it seems to be.” 5*****

Therefore, we find no error.

Appellant’s final contention of error concerns the following excerpt of the court’s charge to the jury:

“Now, I am going to go into the offense which commonly are called sexual offenses, and that is the crime of indecent assault, involuntary deviate intercourse, indecent exposure and rape. With regard to those four offenses I will tell you that you cannot convict the defendant, Richard Kelly, of any fact that the Commonwealth has not proved beyond a reasonable doubt occurred in the Commonwealth. You may not speculate as to where these particular events occurred. You must find the defendant again proved beyond a reasonable doubt that the act occurred in Pennsylvania before you can find him guilty of the sexual offenses. I will tell you, however, that Bristol Township, Falls Township and Solebury Township are all in Bucks County, Pennsylvania.”

The appellant specifically objects to the court’s statement that “you must find the defendant again proved beyond a reasonable doubt that the act occurred in Pennsylvania before you can find him guilty of the sexual offenses.”

Our Supreme Court has consistently held that, in reviewing jury instructions for prejudicial and reversible error, the charge must be read and considered as a whole. Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977). Error cannot be predicated upon isolated excerpts of the charge. It is the general effect of the charge that controls. See Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972).

In the present case, immediately before the aforementioned error, the court stated: “Now, I am going to go into the offense which commonly are called sexual offenses, and that is the crime of indecent assault, involuntary deviate sexual intercourse, indecent exposure and rape. With regard to those four offenses I will tell you that you cannot convict the defendant, Richard Kelly, of any fact that the Commonwealth has not proved beyond a reasonable doubt occurred in the Commonwealth.’’ (emphasis added). Throughout the twenty-one (21) page charge, there is but one misstatement (the one at issue here), and there are no less then twenty-five (25) direct statements regarding the Commonwealth’s burden of proof including the one on jurisdiction immediately preceding this error.

Evaluating the charge as a whole, we hold that this isolated error was clearly harmless error. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Judgment of sentence affirmed.

POPOVICH, J., files a concurring statement.

POPOVICH, Judge,

concurring:

I join Judge Hester’s recitation of the law and only wish to point out that the venue of a court of common pleas concerning matters over which it has jurisdiction “shall be as prescribed by general rule.” 42 Pa.C.S.A. § 931(c). Instantly, since no “general rule” has been promulgated by our Supreme Court to fill the void created by the repeal of the Journey Act (19 P.S. § 525) by the Judiciary Act Repeal-er Act (JARA), it survives in this Commonwealth in the form of common law by virtue of Section 20003(b) of the JARA. 42 Pa.C.S.A. § 20003(b).

      . 18 Pa.C.S.A. § 2901.

      . 18 Pa.C.S.A. § 2902.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 3126.

      . 18 Pa.C.S.A. § 3123.

      . 18 Pa.C.S.A. § 3127.

      . 18 Pa.C.S.A. § 3121.

      . 18 Pa.C.S.A. § 2705.

      . 42 Pa.C.S.A. § 20003(b) states:
      “(b) Interpretation—The specific repeals effected by section 2 are intended to eliminate obsolete, unnecessary or suspended statutory provisions. General rules promulgated pursuant to the Constitution of Pennsylvania and the Judicial Code in effect on the effective date of the repeal of a statute, shall prescribe and provide the practice and procedure with respect to the enforcement of any right, remedy or immunity where the practice and procedure had been governed by the repealed statute on the date of its repeal. If no such general rules are in effect with respect to the repealed statute on the effective date of its repeal, the practice and procedure provided in the repealed statute shall continue in full force and effect as part of the common law of the Commonwealth, until such general rules are promulgated. Nothing in this act is intended to revive any act heretofore supplied and repealed by later inconsistent legislation. The fact that this act specifically repeals part of an act shall not create any implication that the unrepealed parts of such act are consistent with or are not supplied by the applicable provisions of the Pennsylvania Consolidated Statutes or other later statutes.”

      . The defense also argues it was prejudiced when the District Attorney twice referred to Miss Mohan’s statements to the District Attorney’s Office, and no official statements had ever been given. It is clear from the context of the closing argument that the prosecutor was merely referring to statements of the victim, and thus appellant’s argument is meritless.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    465 A.2d 1306
    Jack E. FISHER and Constance Fisher, Husband/Wife, Appellants v. John R. FINDLAY and Helen Findlay, His Wife.
    Superior Court of Pennsylvania.
    Argued April 12, 1983.
    Filed Sept. 23, 1983.
    Petition for Allowance of Appeal Denied Feb. 2, 1984.

      Warren D. Utermahlen, Milford, for appellants.
    Lucille Marsh, Scranton, for appellees.
    Before HESTER, MONTEMURO and POPOVICH, JJ.
   HESTER, Judge:

This is an appeal from the Order of February 11, 1982, in the Court of Common Pleas of Pike County, affirming the Order of May 22, 1979, granting a compulsory nonsuit.

When reviewing the issue of whether a compulsory nonsuit should have been granted,

“Plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, whether direct or circumstantial, and all conflicts must be resolved in the plaintiffs favor. McDonald v. Ferrebee, 366 Pa. 543, 79 A.2d 232 (1951). A compulsory nonsuit may be entered only in a clear case where the facts and circumstances lead unerringly to but one con-elusion. McNett v. Briggs, 217 Pa.Super. 322, 272 A.2d 202 (1970).” Cited in Jurich v. United Parcel Service of New York, Inc., 239 Pa.Super. 306, 361 A.2d 650 (1976).

Reviewing the evidence in accordance with the above-quoted law, the evidence adduced at trial is as follows:

On June 27, 1975, at approximately 8:00 p.m., appellant Jack Fisher arrived at the appellees’ residence while they were having dinner. He joined them at their table. Following his arrival, the parties sat down to dinner. Approximately five or ten minutes thereafter, husband/appellant requested to use the restroom. Appellant, being unfamiliar with the appellees’ house, inquired of appellee for directions. Appellee, John Findlay, testified that he gave appellant the following directions: “I walked him to the living room and showed him where the hallway was and I told him the light switch was on his left.” However, there are no light switches on the left side of the hallway. The testimony concerning what appellant would have encountered in following appellee’s directions is as follows:

Q. Appellants’ Counsel: Now, as you turned left in that particular hallway are there any light switches which would be found or located on the wall on your left?
A. Appellee John Findlay: No, sir.
Q. Where is the first light switch on your left as you enter that hallway?
A. When you walk through the bathroom door.
Q. Well, what is the first door that you reach as you turn left into that hallway?
A. The door to the cellar door, but there’s a gate across it, always locked.
Q. The first door you would reach, then, is the cellar door?
A. Yes, sir.
Q. Now, is there a light switch located anywhere for that particular cellar?
A. When you open the door, yes, sir.
Q. And where is it located?
A. On the left.
Q. It’s on the left?
A. Yes, sir.
Q. So as you turn left into the hallway the first door you come to is the cellar door, and the first light switch on the left is the light switch for the cellar, isn’t that true?
A. After you open the door, yes, sir.
Q. Now, you had referred to a bathroom. The bathroom door is the second door, isn’t it?
A. It’s right straight ahead.
Q. Please, it is or isn’t it the second door?
A. Yes, sir, the second door.
Q. Now, is that light switch located on an outside wall or is it located inside the bathroom?
A. Inside the bathroom.
Q. Now, did you tell Mr. Fisher at any time that the door to the bathroom was the second door?
A. No, sir.
Q. Did you tell him that the light switch that he was going to find on his left was the second light switch on his left?
A. No, sir.
Q. In order to get to the light switch which would be for the cellar you have to open the cellar door, is that correct?
A. Yes, sir.
Q. And for the light switch in the bathroom you also have to go into the bathroom, don’t you?
A. Yes.

Appellant, upon entering the hallway, proceeded to the first door on his left and opening it inward, tumbled down the stairway. He was found by appellees, lying unconscious, on the cellar floor. Due to the seriousness of his injuries, appellant was unable to testify at trial.

The cellar door and steps were described by appellee Findlay as follows:

Q. Appellants’ Counsel: Now, Mr. Findlay, in what direction does the cellar door in question open? Do you pull it towards yourself or—
A. Mr. Findlay: Pardon me? Repeat that question, please.
Q. What direct does the cellar door open?
A. Oh. Inwards. You have to open it, push it in.
Q. You push it in?
A. Yes, sir.
Q. Is there any landing at the top of those cellar stairs? A. No, sir.
Q. Does the railing come up to the top of the steps?
A: No, sir.

Appellant’s expert, James F. Knash, a professional engineer, testified as follows regarding the appellees’ cellar door and stairs:

Q. Appellants’ Counsel: Now, you referred before, Mr. Knash, to certain commonly accepted standards, engineering and architectural standards, which would apply to the construction, usage and design of cellar doorways and stairs. Now, what are those standards with respect to cellar doors themselves?
A. Mr. Knash: Well, these standards apply not only to cellar doors but to any door that opens to a set of stairs, there’s usually a landing on top, which is required by most of the present day codes.
And, in other words, any time you open a door you have to—your body has to be in a motion to follow the door through. If you walk up to a door and try and open it standing still you can only get it to go as far as your hand will go, and that won’t get it open, so you have to get your body in motion to follow through. And as you’re following through with your hand on the knob your tendency is one of your feet to take a step forward, usually over the threshold. And because this is a natural tendency of the body that is why they require landings oh all doors that are opening out, so that that first step you will be landing at the same level that you’re standing.
And if this isn’t done then usually the door is made to open in the other direction. Because if you walk up to a door that is—you have to pull to open—your tendency is to stop, grab the handle and then you have to actually back up, so that the momentum of your body is going in the opposite direction then. And when you get the door open then usually you’re hanging onto the knob, it stops your backward motion, and then you can proceed forward, because there’s a tendency for the body to want to go and stay in the direction that it’s moving.
Q. Now, you stated that this particular doorway opened outward. When you say outward you mean outward away from the body?
A. Away from the body, yes.
Q. Now, did you observe whether or not there was any landing on this particular doorway?
A. No, There was no landing.
Q. There was no landing whatsoever?
A. No landing, no.
Q. So in that regard is it your testimony that this cellar door did not conform to the commonly accepted standards of custom usage and design?
A. Yes. That door should have opened the other way. It should have opened towards the—the top of the—towards the hall. It should have opened into the hall.
Q. Now, did you continue to make observations with regard to the stairway?
A. Yes.
Q. All right, now, did you make any determination as to whether or not there was a railing located on those stairs?
A. There was a railing but it was at the bottom. It would be located—you had to get halfway down the stairs before you could grab it.
Q. Mr. Knash, is that railing indicated on your drawing?
A. Yes, it is.
Q. Could you perhaps hold the drawing up and show that to the jury?
Á. Here’s the railing and it is nailed to the side of the steps. This is a section through, it’s nailed on this side. So if you were standing up here you would have to get down at least halfway before you could grab it here, at least that far down before you could even reach down and grab the railing. (Indicating)
Q. Let me show you Plaintiff’s Exhibit No. 4 which is offered in evidénce. If that the same railing that you observed at the time?
A. Yes, it is.
Q. All right, now, you stated that in order to reach that railing you would have to be halfway down the stairs?
A. Yes.
Q. Now, are there commonly accepted standards of custom usage and design with regards to railings in residential cellar stairways?
A. Yes. Railings should run clear to the top of the stairs so that as you take the first step you can grab onto a railing.
Q. So in that regard these stairs did not conform to those standards?
A. That’s right.
Q. Now, are there commonly accepted engineering or architectural standards which would relate to either the width or height of risers?
A. Yes. Usually a set of stairs is classified as anything between twenty degrees and fifty degrees. If you go below that it’s classified as a ramp. If you go above fifty degrees it starts to become a ladder, it’s classified as a ladder.
And at these points that are called the critical angle is the transition between stairs and a ladder or stairs and a ramp because at that point the body is uncomfortable.
Q. When you’re talking about the relationship between the risers and the treads you’re now talking about the slope or the steepness of the stairs?
A. Yes. The ratio of the—of the riser to the tread determines the steepness.
Q. All right, now, did you make a determination as to the steepness of these particular stairs?
A. Yes, I did.
Q. And what was that determination?
A. They are 51 degrees, 42 minutes. And this is computed by dividing the riser height by the tread and you come up with a tangent of that angle.
Q. As a result of that computation what did you determine?
A. Well, by normal usage these are not stairs, they start to fall in the category of a ladder, because by normal usage fifty degrees is the critical angle.

Based upon this evidence, we must determine whether the evidence warranted the granting of a nonsuit. Here, we are presented with the two issues that are normal in this type of case: (1) Did the evidence establish negligence on the part of the appellees? (2) Did it establish contributory negligence on the part of appellant? Regarding the first issue, since appellant was a social guest of the appellees, he qualified for those duties owed to a “gratuitous licensee.” Davis v. McDowell National Bank, 407 Pa. 209, 180 A.2d 21 (1962). In Sharp v. Luksa, 440 Pa. 125, 269 A.2d 659 (1970), these duties were declared to be contained in Section 342 of the Restatement (Second) of Torts. This section provides:

§ 342. Dangerous Conditions Known to Possessor
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.

In the present case, it is undisputed that áppellant had no reason to know of the steep stairway that appellants’ expert stated would be classified as a “ladder” in the engineering profession. Also, a juror, after reviewing the appellants’ photographs, could reasonably conclude that the steps were indeed more in the form of a ladder rather than steps in a staircase.

As to whether the stairway and door constituted an unreasonable risk of harm, appellants’ expert testimony established that the door opened in the improper direction, and thus, appellant’s own momentum carried him into the stairwell which resulted in appellant’s fall. Further, the appellants’ expert testimony classified the stairway as a ladder and not a stairway, and did not conform to the standards of engineering and architecture which apply to the construction, usage and design of cellar doorways and stairs.

Further, it is undisputed that the appellees knew or should have known of this condition since the staircase had been constructed sometime prior to the occurrence and appellees had positioned a children’s gate at the cellar door. Also, unlike the directions given to the plaintiff in Felix v. O’Brien, 413 Pa. 613, 199 A.2d 128 (1964), the directions in the present case were more specific, as appellee John Find-lay stated:

“I walked him [appellant Jack Fisher] to the livingroom and showed him where the hallway was and I told him the light switch was on his left.”

Here, the jury could conclude that these directions were sufficiently specific to mislead appellant, for appellee Find-lay also testified that there were no light switches on the left side of the hallway, and the first door on the left was the cellar door. Unlike Felix v. O’Brien, supra, there is sufficient evidence, based upon appellants’ expert testimony and photographs, for the jury to conclude that the appellees would have had reason to believe that appellant would not have been able to discover the dangerous stairwell.

We must now determine whether appellants are to be barred from recovery due to the contributory negligence of appellant Jack Fisher. The lower court found him guilty of contributory negligence as the result of his entering a totally dark area (the stairwell). However, nothing appears of record to substantiate this finding. The only evidence as to the degree of light in the stairwell at the time of the accident is to the effect that it was still light out doors and that a large window filters light into the hallway. Thus, the jury could reasonably infer that the stairwell was semi-light or light. Therefore, appellant would not be contributory negligent as a matter of law. See Hoss v. Nestor Building & Loan Association, 164 Pa.Super. 77, 63 A.2d 435 (1949); Mogren v. Gadonas, 358 Pa. 507, 58 A.2d 150 (1948).

However, we are of the opinion that it is a jury question whether the appellant had time to realize the lighted condition of the stairwell since appellants’ expert testified that immediately upon pushing open the door, appellant’s momentum would have propelled him into the stairwell.

The question of appellant’s contributory negligence is for jury resolution.

Reversed and remanded for a new trial. Jurisdiction is relinquished.

      . Since the instant cause of action arose prior to September 7, 1976, the effective date of the Comparative Negligence Act, the law of contributory negligence, rather than that of comparative negligence, is to be applied. See Costa v. Lair, 241 Pa.Super. 517, 363 A.2d 1313 (1976).

      . Regarding appellees’ questioning of the propriety of this appeal, whereas the law favors the right to appeal where an appeal has otherwise been timely made in good faith before the wrong court, we hold that this appeal is proper for review. See Commonwealth v. Carter, 36 Pa.Cmwlth. 569, 575, 389 A.2d 241, 242 (1978).


author: PER CURIAM:

text:
    465 A.2d 1811
    Ernestine ELLISON v. Moorey GREEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1983.
    Filed Sept. 23, 1983.
    Michael D. Fioretti, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

Appellant appeals from the Order of June 16, 1980 requiring him to pay child support in the amount of $37.50 per week plus $10 per week arrearages.

The procedural history indicates that Appellee originally filed a complaint for support in August of 1970 concerning her child born August 6, 1970. That complaint was withdrawn without prejudice in February of 1974. The complaint was reinstated in September of 1974 and ultimately dismissed in April of 1975 pursuant to Appellant’s petition to dismiss the action as barred by the then applicable two year criminal statute of limitations regarding prosecutions for support of children born out of wedlock, 18 Pa.C.S.A. § 4323(b).

Appellee filed the instant action on February 27, 1979 under the new civil paternity and support statute, 42 Pa.C. S.A. § 6704 et seq. Appellant again filed a petition to dismiss based on the former criminal statute of limitations, which was denied. Following a civil nonjury trial, Appellant was determined to be the child’s father and the support order was subsequently entered. No exceptions to these orders were filed.

This failure to file exceptions precludes review of the merits of the case. The law is now settled that an action brought under 42 Pa.C.S.A. § 6704 prior to the enactment of Pa.R.C.P. 1910.1-.31, effective July 22, 1981, requires exceptions to be filed to preserve objections for appeal. See Commonwealth ex rel. White v. White, 303 Pa.Super. 329, 449 A.2d 712 (1982), Commonwealth v. Bankert, 295 Pa.Super. 423, 441 A.2d 1304 (1982); Paul v. Paul, 281 Pa.Super. 202, 210 n. 11, 421 A.2d 1219, 1223 n. 11 (1980).

Order affirmed.

      . During the pendency of the original complaint, the procedure for obtaining a child support order for a child born out of wedlock was to initiate an action under 18 Pa.C.S.A. § 4323, Neglect to Support Bastard, within two years of the child’s birth, unless the reputed father had acknowledged paternity or voluntarily contributed support. A civil support action could be instituted afterwards if paternity was proven. This section was repealed in 1978 and replaced by 42 Pa.C.S.A. § 6704 et seq.

        . Pa.R.C.P. 1910.12(g) now states that no exceptions may be filed to final support orders.


text:
    465 A.2d 1312
    Gloria SPENCER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 2, 1983.
    Filed Sept. 23, 1983.
    Alan Jay Dion, Philadelphia, for appellant.
    Alfred D. Whitman, Philadelphia, for appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   PER CURIAM:

This is an appeal from an order of the trial court confirming an arbitrator’s award in favor of appellee and against appellant. The arbitrator permitted appellee to recover, and required appellant to pay, all losses suffered by appel-lee in excess of $15,000.00 from her own carrier under the uninsured motorist provisions contained in the policy issued to her by appellant. Appellee had been stopped at a red traffic light when her car was struck in the rear by an oncoming car. Appellee settled her claim against the tort-feasor and his insurer for $15,000.00.

The arbitrator concluded that “underinsured” could be equated with “uninsured.” The trial court left the award undisturbed because the trial judge concluded that:

[T]he arbitrator’s interpretation is unassailably binding on both parties in the “underinsured v. uninsured” situation, in the absence of a convincing showing of fraudulent taint in the arbitrator’s conduct as reflected in the award. Tr.Ct.Op. at 2.

It is now clear that the legal conclusions reached by the trial judge and by the arbitrator are incorrect. White v. Concord Mutual Insurance Co., 296 Pa.Super. 171, 442 A.2d 713, affirmed, 500 Pa. 107, 454 A.2d 982 (1982); Davis v. Government Employees Insurance Co., 296 Pa.Super. 198, 442 A.2d 727, affirmed, 500 Pa. 84, 454 A.2d 973 (1982).

Accordingly, we reverse the order of the trial court and remand this case for the entry of judgment in favor of the appellant, State Farm Mutual Automobile Insurance Company. Jurisdiction is not retained.


text:
    465 A.2d 1313
    Patricia J. RICCI v. Paul A. RICCI, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1981.
    Filed Sept. 30, 1983.

      James C. Haggerty, Philadelphia, for appellant.
    Diana S. Donaldson, Philadelphia, for appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   PER CURIAM:

Since the subject of the within appeal was also the subject of an appeal as of No. 1852 Philadelphia, 1981, and since that proceeding has been concluded by the entry of an Opinion, the within appeal is quashed as moot. 318 Pa.Super. 445, 465 A.2d 38.


author: BROSKY, Judge: SPAETH, Judge,

text:
    466 A.2d 132
    2401 PENNSYLVANIA AVENUE CORP. t/a 1528 Walnut Street Company v. FEDERATION OF JEWISH AGENCIES OF GREATER PHILADELPHIA, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1982.
    Filed Aug. 19, 1983.
    Reargument Denied Oct. 25, 1983.
    Petition for Allowance of Appeal Granted Feb. 29, 1984.

      Richard M. Squire, Philadelphia, for appellant.
    Tom P. Monteverde, Philadelphia, for appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   BROSKY, Judge:

Lessee/appellant appeals here from the dismissal of its exceptions and from judgment against it for $292,686.83 in rent. Following a bench trial, the Court of Common Pleas held that lessee had anticipatorily repudiated his lease and was liable to the lessor/appellee for the rent due. This court finds that lessee did not, as a matter of law, anticipa-torily breach the contract. Further, this court finds that it was the lessor who materially breached the lease by not tendering a timely delivery of the leasehold to the lessee. Therefore, the lessee is relieved of any liability under the lease and the judgment is vacated.

This case involves an action for breach of contract. The contract being a lease agreement duly entered into by the appellee, 2401 Pennsylvania Avenue Corporation (hereinafter lessor), and the appellant, Federation of Jewish Agencies of Greater Philadelphia (hereinafter lessee). The validity of the contract per se is not at issue. Rather, the primary issue is whether or not the lessee anticipatorily breached the contract prior to the time for performance— thus relieving the lessor of its obligations under the lease. The court below found that the tenant had anticipatorily breached the contract and had relieved the landlord of the duty to deliver the premises on the agreed upon date. As this Court finds, to the contrary, that the lessee did not anticipatorily breach the lease contract, the second issue is whether the lessor breached the lease by failing to tender a timely delivery of the leased premises. On this issue, the court below further found that if the tenant had not antici-patorily breached, the landlord’s actions would constitute a material breach of the contract and would thus relieve the tenant of any liability under the contract. We agree with this dicta and make it the basis for our resolution of the second issue.

The appellant/lessee raises four questions on appeal. They are: (1) Whether the lower court erred as a matter of law in finding that the lessee had anticipatorily breached its lease with the lessor. The lessee contends that the evidence fails to support a finding that lessee would not or could not perform its sole affirmative obligation under the lease—the obligation to pay rent—if the lessor had tendered possession of the demised premises by the date upon which such possession was due. (2) Whether the lower court erred as a matter of law in awarding damages to the lessor when the lessee’s obligation under the lease was excused by the lessor’s unjustified breach of the lease agreement. (3) Whether the lower court erred as a matter of law in awarding damages to the lessor when the plaintiff failed to properly exercise its duty to mitigate damages. (4) Assuming that the plaintiff was entitled to damages,'whether the lower court’s calculations of damages was erroneous. In this opinion, we need only reach the first two issues raised by appellant/lessee. We find that the lessee’s actions do not support a finding of anticipatory breach and that the lessor’s actions constituted a material breach of the lease agreement between the two parties. We reverse and vacate the judgment.

Facts

In November of 1973, the lessee negotiated a lease with the lessor, owner of an office building at 1528 Walnut Street, Philadelphia. The lease, dated November 8, 1973, provided for a basic term of two years lasting from May 1, 1974 to April 20, 1976. An addendum to the lease reads, in pertinent part:

As you understand, the premises being demised are now occupied by Catalytic, Inc. whose lease expires August 31, 1974. They have indicated to us and we have advised you accordingly, that they will make every possible effort to give Federation possession as close to May 1st, as possible.
If, however, they are unable to move into their new quarters, it may be necessary for them to remain beyond May 1, 1974, on these floors, but in no event beyond August 31, 1974, which is the expiration date of their lease.

The parties do not contest that September 1, 1974 is the date on which each party’s obligations under the lease commenced.

From May through August of 1974, the lessor sought an agreement from the lessee waiving its right to occupy on September 1 in the event that the current occupants would be unable to vacate by August 31. The lessee consistently refused to grant the requested extension.

During July, 1974, the lessee negotiated the purchase of an office building, thus obviating its need to occupy the leased office space.

Due to delays in the preparation of its intended new facilities, the occupying tenant requested that the lessor grant it a three-month extension beyond the August 31 termination of its lease. Without receiving a waiver from the lessee, on August 5, 1974 the lessor entered into a formal extension agreement with the current occupant for three months commencing September 1, 1974.

The demised property was not tendered by the lessor to the lessee on May 1 nor on September 1. In fact, three floors of the building were not tendered until October 6, 1974 and the fourth floor was tendered at the end of October, 1974.

The court below held that the lessee had anticipatorily repudiated the lease. In so holding, the court concluded that the following declarations of the lessee prior to the week ending August 1, 1974, constituted “an absolute and unequivocal refusal to perform [on the contract] or a distinct and positive statement of inability to do so”:

(a) On July 24, 1974 [lessee’s] statement that “he was advised that the lease would have no effect because of an inability of Lessor to give possession in May as called for in the lease;”
(b) an inconclusive meeting with [lessee] on July 30, 1974, followed by
(c) a meeting with [lessee] on August ,1, 1974, at which time [lessee] declined to grant an extension because “they were being advised by their attorney’s [sic] that any extension given by Federation would in essence acknowledge the validity of the lease,” and
(d) on this same date [lessee] informing [lessor] that “the [lessee] did not want to occupy [the four floors], had no use for it, and would not consider any type of extension without a release of liability from the lease.

(Emphasis in original.)

Further, the trial court’s Finding of Fact number nine is relevant here. It states, “Up to and including August 31, 1974, Federation [lessee] did not expressly state to Walnut Street Co. [lessor] that the former would not pay rental for the four floors, nor was a demand made therefor by Walnut Street Co.” (Emphasis added.)

Scope of Review

It is well settled that the findings of the trial judge sitting as a trier of fact will not be disturbed unless there is a determination that those findings are not based upon competent evidence. His Conclusions of Law will also not be disturbed unless the trial judge based his decisions on an erroneous application of the law. Courts v. Campbell, 245 Pa.Super. 326, 369 A.2d 425 (1976); Taylor v. Township of Wilkins, 60 Pa.Cmwlth. 65, 430 A.2d 1014 (1981).

In this appeal, the lessee contends that the facts relied on by the trial court cannot justify the conclusion that an anticipatory breach occurred. Since the lessee challenges only the application of the facts to the law, we must determine whether the facts as given can, as a matter of law, justify the legal conclusions that the trial court drew from them.

Anticipatory Breach

The first question raised is whether the preceding set of facts is sufficient, as a matter of law, to support the finding of an anticipatory breach of the lease by the lessee.

We begin with the observation that leases are in the nature of contracts and are thus controlled by principles of contract law. Cusamano v. DiLucia, 281 Pa.Super. 8, 421 A.2d 1120 (1980); Pugh v. Holmes, 253 Pa.Super. 76, 384 A.2d 1234 (1978), aff’d. as modified, 486 Pa. 272, 405 A.2d 897 (1979).

Under the law of Pennsylvania, conduct which constitutes an anticipatory repudiation of a contract is set forth in McClelland v. Amsterdam Casualty Company, 322 Pa. 429 at 433, 185 A. 198 at 200 (1938). McClelland states: “In order to give rise to a renunciation amounting to a breach of contract, there must be an absolute and unequivocal refusal to perform or a distinct and positive statement of an inability to do so.”

The theory of anticipatory breach is further explained in McAlpine v. Aamco Automatic Transmission, Inc., 461 F.Supp. 1232 at 1253 (E.D.Mich., 1978):

Pennsylvania law is well-settled that more than a threat of non-performance is needed before conduct can amount to an anticipatory breach of contract. The conduct must manifest an absolute and unequivocal refusal to perform. Pennsylvania Law Encyclopedia, Vol. 8, § 365, at 414; McCloskey & Co. v. Minweld Steel Co., 220 F.2d 101 (3d Cir.1955); McClelland v. New Amsterdam Casualty Co., 322 Pa. 429, 185 A. 198 (1936).

There are three theories upon which the trial court may have relied to support its finding that the lessee anticipato-rily repudiated the lease. The first is that the lessee breached the contract by disavowing the existence of the contract or all liability under it. The second theory is that the lessee breached a duty, implied-in-law, to occupy the leased premises. The third theory is that the lessee breached a duty, based on the contract, to occupy the leased premises. Upon close scrutiny, none of these theories are supported by the facts as found by the trial court.

Pursuant to the first theory, the trial court relied on William B. Tanner Co., Inc. v. W100, Inc., 528 F.2d 262 at 268 (3d Cir., 1975), to support its finding of anticipatory breach by the lessee. In that case, anticipatory repudiation was found where the defendant had “disavowed all knowledge of the very existence of the contracts” between the parties and defendant further declared that it “would not run any of [plaintiffs] spots” on the radio.

The trial court’s reliance on Tanner is misplaced. The facts in the case at hand are sufficiently distinguishable so as to justify a different result. The lessee here never “disavowed all knowledge of the very existence of the contracts” in question. It merely voiced the opinion that the contract might already be void due to a possible breach by the lessor. Further, and very importantly, lessee never declared that it would not perform its duties under the contract. This fact is supported by the trial court’s finding that the lessee never expressly refused to pay rent for the leased premises.

Lessee’s July 24 statement that “he was advised that the lease would have no effect” (characterized by the trial court as an “off-hand” opinion) and his August 1 statement that “any extension given would in essence acknowledge the validity of the lease” are insufficient to constitute the required high standard of conduct that is “an absolute and unequivocal refusal to perform.” Further, a court will often look to words and conduct when determining whether it was reasonable for one party to assume that another party had anticipatorily breached. The fact here that the lessee continued to meet and negotiate with the lessor regarding the requested extension and that on August 1, the lessee stated that it would “not consider any type of extension without a release of liability for the lease” support the conclusion the lessee’s words and conduct were not an “unequivocal” refusal to perform.

The two remaining theories upon which court below may have based its finding of anticipatory breach are that lessee had a duty, implied-in-law or based on the contract, to occupy the leased premises and that its clear expression of intent not to occupy was sufficient to support a finding of anticipatory breach. Neither theory is supported in law or in fact.

A tenant has no duty, implied-in-law, to occupy the leased premises. Absent a lease provision or agreement to the contrary, there are two basic incidents of a tenancy: the right to possession of the leasehold by the tenant and the corresponding right to receive rent payments by the landlord. Oskow v. Smulkin, 249 A.2d 520 (D.C.App., 1969). This proposition is supported in the Restatement, Second, of Property, introductory note to Chapter 12, “Tenant’s Obligations that Inhere in the Landlord-Tenant Relationship” (1976):

The obligations of the tenant inherent in the landlord-tenant relationship which arise without the aid of any express promise by the tenant are to pay the rent reserved, not to commit waste, and not to use the leased property for an illegal purpose.
The obligations of the tenant to pay rent reserved in the lease is at the very heart of the landlord-tenant relationship.

Id. at 383-384. A tenant’s duty to occupy demised premises is not implied-in-law, but is imposed only by a contractual provision. See, Goldberg v. Pearl, 306 Ill. 436, 138 N.E. 141 (1923); Burdick v. Fuller, 199 App.Div. 94, 191 N.Y.S. 442 (App.Div., 1921). This proposition is stated in Section 307 of Corpus Juris Secundum, “Landlord and Tenant”:

Accordingly, it is now the general rule that a lease becomes complete and takes effect on its execution, unless otherwise specified therein, and an entry by the lessee is not necessary to give it effect. In the absence of an agreement to reside on or occupy the demised premises, the tenant is not bound to do so...

51C C.J.S. Landlord and Tenant § 307 (1968).

As there is no duty implied-in-law which mandates that the lessee occupy the demised premises, the question is whether the lessee had a contractual duty to occupy the leasehold. Since there is no provision in the contract which expressly states that lessee had a duty to occupy, we must determine whether such a duty arose out of the fact that the lease contained a “use and occupancy” clause. This question is answered in the negative because “use and occupancy” clauses are “permissive” rather than “mandatory” and do not impose a duty upon the lessee to occupy the premises.

In Dickey v. Philadelphia Minit-Man Corp., 377 Pa. 549 at 552, 105 A.2d 580 at 581 (1954), this Court gave the following as the applicable rule of law in Pennsylvania regarding a “use and occupancy” clause in a lease agreement:

Generally speaking, a provision in a Lease that the premises are to be used only for a certain prescribed purpose imports no obligation on the part of the Lessee to use or continue to use the premises for that purpose; such a provision is a covenant against a non-complying use, not a covenant to use.

That opinion went on to state that this general rule had been followed uniformly by the trial courts of this state. The rule of law in Pennsylvania is that, unless otherwise specifically stated, a “use and occupancy” clause in a lease is a provision against a noncomplying use, not a covenant to use. This rule applies to the facts of this case.

Clause One of the November 3, 1973 lease between the parties herein provided that “lessee will use and occupy [the premises] as offices for charitable organization and related uses.” Nowhere in the lease do the parties agree that the use stated creates a mandatory obligation upon the lessee. In fact, Clause One indicates that the premises may be used for other than the stated purpose, upon the written consent of lessor. This language supports lessee’s assertion that the “use and occupancy” clause in the.lease in question was of the “permissive” rather than the “mandatory” variety, creating only a negative obligation not to use the property in a non-complying manner.

Thus, we find that the lessee did not have a contractual duty to occupy the leased premises. The lessee’s only affirmative obligation under his lease was to pay the rent. As lessee never refused or indicated an inability to fulfill this obligation, the trial court erred as a matter of law in its finding that the lessee had anticipatorily repudiated its lease. Federation’s actions, prior to September 1, 1974, did not constitute an anticipatory breach of its obligations under the lease.

Material Breach of Lease by Lessor

This leads us to the second issue whether the lessor’s granting of a lease extension to the current occupant constituted a material breach of the lease which justified the lessee’s regarding the whole transaction as at an end. We answer this in the affirmative.

The evidence shows that lessor failed to deliver the demised premises by September 1, 1974, the last permissible date for delivery as specified in the lease. Lessee argues that, absent an anticipatory breach by itself, this failure by lessor to tender a timely delivery constituted a material breach of the lease and excused the lessee from its rental obligation and precluded the lessor from any recovery of damages.

The two questions raised are: (1) whether Clause 22 of the Lease agreement operated to relieve the lessor of its duty to deliver the premises on September 1, 1974 thereby binding the lessor to the lease; and, (2) whether lessor’s grant of a three-month extension to the current occupant constituted a material breach of the lease.

Clause 22 of the lease agreement states in pertinent part: In the event that the herein demised premises are not ready for Lessee’s occupancy at the time herein fixed for the beginning of the term of this lease, because ... of the failure or refusal of the occupant of the said demised premises ... to vacate and surrender up the same ... this lease ... shall not be affected thereby ...

Additionally, the addendum to the lease, stating the possibility of a September 1 commencement date, stated, “... but in no event [would the current occupant occupy the leasehold] beyond August 31, 1974, which is the expiration date of their lease.”

In construing a lease agreement, it is fundamental that the intention of the parties is controlling, and that intention must be ascertained from the entire instrument. Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776 (1951); Sharp v. McKelvey, 196 Pa.Super. 138, 172 A.2d 580 (1961).

We conclude, as did the trial court, that Clause 22 does not operate to relieve the lessor of its duty to tender delivery of the premises on the agreed upon date. The pertinent condition in Clause 22 (cited previously) did not occur. The continued occupancy by the current occupant was by formal agreement with lessor, not by that occupant’s recalcitrance.

Further, reading the lease agreement as a whole to determine the intent of the parties, it is clear that they intended September 1, 1974 as a fixed date for the tender of the leasehold. Clause 22 referred only to a delivery later than May 1 but earlier than September 1.

An implied covenant of quiet enjoyment applies in regard to every lease of real property and is breached when the tenant’s possession is impaired by acts of the lessor or those acting under him. Pollock v. Morelli, 245 Pa.Super. 388, 369 A.2d 458 (1976). In Easton Theatres v. Wells Fargo, 265 Pa.Super. 334, 401 A.2d 1333 (1979), appeal dismissed 498 Pa. 557, 449 A.2d 1372 (1982), this Court established the test to be applied:

Whether a breach is so substantial as to justify an injured party’s regarding the whole transaction as at an end “is a question of degree; and must be answered by weighing the consequences in the actual custom of men in the performance of contracts similar to the one that is involved in the specific case.” 4 Corbin, Contracts, § 946 (1951). See also Restatement Second of Contracts § 266 (Tent. Draft No. 8, 1973) (setting forth factors to be considered in determining whether a breach is material)

Ibid. 265 Pa.Super. at 344, 401 A.2d at 1338.

Lessor’s act of failing to tender possession of the premises by the last allowable date as fixed in the lease is the most extreme possible type of breach of the covenant of quiet enjoyment. As noted above, this failure was an express act of lessor’s, chargeable to him, through his negotiating an extended lease with the occupying tenant. Thus, we concur with the trial court dicta that the lessor’s three-month extension of the current lease was a material breach of the lease, discharging the lessee from its obligations under the agreement. Since we have found that lessee did not anticipatorily breach the lease contract and that lessor did materially breach, the judgment against lessee must be vacated.

The lower court’s order holding the Federation of Jewish Agencies liable for damages in the amount of $292,686.83, plus interest, is vacated.

SPAETH, J., files a concurring statement in which BECK, J., joins.

BECK, J., also joins in the majority by BROSKY, J.

SPAETH, Judge,

concurring:

While I join Judge BROSKY’s opinion, I find it unnecessary to decide whether appellant had a duty to occupy the premises, for if there were such a duty, appellant could not have breached it, since the opportunity to do so was thwarted by appellee’s conduct as lessor.

During the period July 25 through August 1, 1974, appel-lee and appellant engaged in discussions in which the appel-lee sought appellant’s agreement to a short-term extension of the beginning of appellant’s lease term so that Catalytic, the existing tenant, could remain on the premises until its new quarters were completed. In exchange, appellant sought relief from its liability under the lease. Appellant’s participation in these discussions suggests that it had not repudiated any obligation under the lease.

At one point in the negotiations, cancellation, of the lease with a lump-sum payment by appellant was rejected by appellee. See R. 805a. In the final discussion between the parties—on August 1—appellee’s agent stated that the next day he would propose additional ideas for possible compromise. R. 794a. The record contains no evidence that any such further proposals were made. Instead, on August 5 appellee acceded to Catalytic’s demand for an extension of Catalytic’s lease, without having obtained appellant’s agreement to such an extension. As part of the extension agreement, R. 810a, Catalytic rented four additional floors from appellee for a term of two years, with three one-year renewal options. See also R. 774a. Thus appellee, by entering into the extension agreement, ended compromise negotiations with appellant. That being the case, it was impossible, for appellant to repudiate any obligation it may have had under the lease to occupy the premises.

      . Cf. Murray, J.E., Murray on Contracts, § 209, (2d Rev.Ed.1974): "One of the more difficult questions ... is whether a good faith denial of liability under a contract should be treated as a sufficient basis for an action for anticipatory repudiation ... to the extent that courts have considered this matter, they suggest that there is no right to sue for anticipatory repudiation where the plaintiff is only able to show that the defendant in good faith denied that he was under any obligation to perform.”
      Although we find no Pennsylvania decision which clearly adopts this position, it is a concept which deserves consideration in Pennsylvania courts. It provides an analytical framework which could assist the trier-of-fact in difficult cases such as the one at hand or Tanner.


author: JOHNSON, Judge:

text:
    466 A.2d 140
    COMMONWEALTH of Pennsylvania v. Michael A. DE GEORGE, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1983.
    Filed Aug. 19, 1983.
    Reargument Denied Oct. 28, 1983.
    Petition for Allowance of Appeal Granted Mar. 7, 1984.

      William F. Cercone, Jr., Pittsburgh, for appellant.
    Shad Connelly, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, BROSKY and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant was convicted in a non-jury trial of possession with intent to deliver a controlled substance, and criminal conspiracy. Post-trial motions were filed and denied. He was sentenced to a term of imprisonment of two to four years to be followed by a consecutive five year period of probation. He here appeals from the judgment of sentence. As we find merit in one of appellant’s claims of trial counsel’s ineffectiveness, we must reverse the judgment of sentence and remand for a new trial. Procedurally we are also required to review claims pertaining to the pre-trial suppression of evidence and the delay in imposition of sentence.

Appellant first complains that the suppression court erred in not suppressing evidence seized pursuant to a warrant when the police failed to sign the return for several days and delayed three or four days before verifying it before the issuing authority.

At the time in question, Rule 2009(a), Pa.R.Crim.P. provided as follows:

An inventory of the items seized shall be made by the law enforcement officer serving a search warrant. The inventory shall be made in the presence of the person from whose possession or premises the property was taken, when feasible, or otherwise in the presence of at least one witness. The inventory shall be verified by said officer.

Appellant argues that the failure to abide by the rule “undermines the credibility of the return” necessitating the suppression of the inventoried evidence.

In Commonwealth v. Walls, 255 Pa.Super. 1, 386 A.2d 105 (1978) and Commonwealth v. Jones, 245 Pa.Super. 487, 369 A.2d 733 (1977) this court held that it was without authority to impose such sanctions upon the Commonwealth for its omissions pertaining to Rule 2009(a). Such authority rested with the Supreme Court. In light of Walls and Jones; we see no need to expound any further upon such claim.

Appellant further contends that suppression should have been granted since the warrant contained material and deliberate misstatements of fact. He contends that there are two major flaws in the affidavit of probable cause. First he directs our attention to the alleged informant’s testimony, in which the informant denied giving the authorities the information attributed to him. He further contends that the affiant did not personally prepare the portion of the affidavit regarding a surveillance carried out by other officers, although such averments were made as if by the affiant and depended upon the affiant for their credibility.

The affidavit stated that an informant had provided the state police with certain information. The affiant testified at the suppression hearing that the information in the affidavit was true and correct to the best of his knowledge. (N.T. 2/9/78 p. 10) The informant claimed that he had not given some of the information attributed to him. (Id. at 66). A second state trooper, who was present when the meeting occurred, testified that the informant had indeed provided such information. (Id. at 94-95.) The court found that the informant had given such information.

In reviewing this ruling our initial task is to determine whether the factual findings are supported by the record. “In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975). If, when so viewed, the evidence supports the factual findings we are bound by such findings; we may only reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Johnson, 467 Pa. 146, 151-52, 354 A.2d 886, 889 (1976) (footnote omitted); quoted in Commonwealth v. Patterson, 488 Pa. 227, 233-34, 412 A.2d 481, 484 (1980). Furthermore, it is the exclusive province of the suppression court to weigh the credibility of the witnesses and determine what weight to give to their testimony. Commonwealth v. Reynolds, 300 Pa.Super. 143, 446 A.2d 270 (1982); Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982).

The suppression court accepted the state police’s testimony over that of the informant. We are bound by the court’s assessment of credibility. Furthermore, the informant’s own testimony at the suppression hearing raises questions as to his credibility. On several occasions he invoked his Fifth Amendment rights out of an apparent fear that his probation would be revoked if he was known to be associating with drug suppliers. (N.T. 2/9/78 p. 67) We find that the record fails to support this first claim that the affiant provided false information in order to obtain the warrant.

Likewise we find no merit to appellant’s other suppression claim. In Commonwealth v. Musi, 486 Pa. 102, 113-14, 404 A.2d 378, 383 (1979) our Supreme Court stated:

The concept of evaluating the police operation as a collective function as opposed to an individual one is not new. For instance, we have held that it is unnecessary for an arresting officer to have knowledge of the information which supported the probable cause of a warrantless arrest, provided that the officer issuing the order to arrest had sufficient information to act. Commonwealth v. Kenney, 449 Pa. 562, 566-567, 297 A.2d 794, 796 (1972). See also Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975).
Here, the officer supplying the information for the affidavit possessed the requisite information to satisfy the probable cause requirements. The fact that he delegated the responsibility of placing this information in affidavit form and the securing of the warrant from the issuing authority is of no consequence, where the affidavit accurately reflects the information possessed by the officer and that information satisfies the probable cause requirement.

Appellant’s claim does not go to the fact that the averments regarding the surveillance were not identified as hearsay. The affidavit clearly indicated that the affiant was not a member of the surveillance team. Instead he complains that the supervising officer, who was not the affiant, had personally prepared portions of the probable cause section referring to the surveillance. (N.T. 2/9/78, pp. 33, 38, 56-57).

Appellant overlooks the fact that the affiant, as well as the typist or preparer of the warrant, also had knowledge of the information received from the surveillance team. (Id. at 42.) Therefore the affiant could properly swear that it was true and correct to the best of his knowledge. Even if appellant’s premise was correct, the result would not differ.

In Commonwealth v. Devlin, 294 Pa.Super. 470, 440 A.2d 562 (1982) a probation officer provided information to the district attorney, who in turn alerted the police. The police applied for a search warrant based on the information given by the probation officer. In the affidavit no mention was made of the fact that the police had not talked to the probation officer themselves or that the district attorney had channeled the information to the police. The affidavit was held to be adequate to provide the probable cause. We held that the crucial test was whether the affidavit accurately reflected the actual information and the source relied on so that the issuing authority could assess the reliability of the source.

The current factual context is somewhat similar to that in Devlin. The district justice was apprised of the fact that the information resulted from other police officers; whether the information was channeled through two officers, one who prepared the affidavit and one who swore to it, was immaterial. The source was identified and was reliable.

Appellant next complains that the record fails to demonstrate that the waiver of his right to a jury trial was knowing, intelligent and voluntary. The Commonwealth points out that such a claim has not been preserved as it was not raised in pre-trial or post-trial motions. However, appellant counters, on appeal, that if we deem the issue waived, then trial counsel was ineffective in not preserving it.

Rule 1925(b), Pa.R.A.P. authorizes the trial court to direct an appellant to file a “concise statement of matters complained of on appeal.” The rule further states that the failure to comply with such directive may be considered as a waiver of other matters not complained of. In this appeal, while appellant did question the jury trial waiver in his statement of issues, he did not raise trial counsel’s ineffectiveness as it pertains to such waiver. However, our Supreme Court has interpreted the waiver provision of Rule 1925(b) as being “properly invoked only where ... omission from a statement of issues raised on appeal defeats effective appellate review.” Commonwealth v. Silver, 499 Pa. 228, 238, 452 A.2d 1328, 1333 (1982). In the current case the substantive issue was raised and addressed before the lower court. Due to the nature of the ineffectiveness of counsel claim (counsel did not object to improper jury trial waiver), we find the record is adequate for purposes of appellate review.

The only jury waiver of record, whether oral or written, is a written waiver signed May 3, 1978. The printed form did not list the requisite elements of a jury trial; instead it merely stated that appellant “waives a jury trial----” Rule 1101, Pa.R.Crim.P. requires that the trial court determine, on the record, whether a defendant’s decision to be tried non-jury is knowingly and intelligently entered. The courts of this Commonwealth have required that such colloquy contain explanations of the right to be tried by a jury, that: the jury would be chosen from the community; its verdict must be unanimous; and the defendant may participate in its selection. Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978); and Commonwealth v. Smith, 297 Pa.Super. 63, 443 A.2d 299 (1982).

In Commonwealth v. Casner, 315 Pa.Super. 12, 461 A.2d 324 (1983); Commonwealth v. Anthony, 307 Pa.Super. 312, 453 A.2d 600 (1982); and Commonwealth v. Fortune, 289 Pa.Super. 278, 433 A.2d 65 (1981), we found various jury trial waiver colloquies, while less than perfect, were nonetheless valid. However, in the current case there was no attempt on record to explain to appellant his right to a jury trial. In both Morin, supra, and Smith, supra, we found counsel was ineffective as he or she could not have had any reasonable basis for failing to object to an inadequate jury trial waiver. Likewise here, we must find, counsel was ineffective where there is no explanation provided the defendant. Therefore, we must reverse the judgment of sentence and remand for a new trial.

While we find it unnecessary at this point in time to address appellant’s remaining claims of trial error, ineffectiveness of counsel, and errors at the sentencing, we must resolve one other issue raised on this appeal. That is whether, what appellant terms the “unconscionable delay” in imposing sentence deprived appellant of due process of law and violated his right to a speedy trial. Sentence was imposed fourteen months after appellant’s trial. He believes such delay was unreasonable and requires that he be discharged. In the alternative, he claims the record is inadequate to determine whether the delay was purposeful or oppressive and he argues that we should remand the case for an evidentiary hearing.

The leading Pennsylvania case in this area is Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980). There the court, without explicitly deciding, assumed arguendo that sentencing is part of trial for purposes of the speedy trial rule.

In that context, whether a delay in sentencing amounts to an unconstitutional deprivation of a speedy trial right depends upon the circumstances. Pollard v. U.S., [352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 [1957]]; accord, United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). See also Commonwealth ex rel. Holly v. Ashe, [368 Pa. 211, 82 A.2d 244 (1951)]. Such delay must not be purposeful or oppressive. Pollard v. U.S., supra; accord, United States v. Ewell, supra. The principal factors to be considered in determining whether a delay in sentencing has deprived a defendant of his right to a speedy trial are length of delay, reason for delay, assertion of the right, and resulting prejudice to interests protected by the right to a speedy trial. Accord, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1973); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972).

490 Pa. at 627, 417 A.2d at 599 (footnote omitted). There the Court found that a delay of almost two years required inquiry. The Supreme Court found the delay was attributed in part to the defendant’s inability to obtain a transcript due to his refusal to pay for it. Additionally, the court found that the trial judge was faced with a heavy caseload and that the defendant had not formally sought to expedite a ruling on post-trial motions and imposition of sentence.

The Supreme Court found Pounds was not prejudiced as he was subjected to a mandatory life sentence and he had not sought release on bail. The court concluded that the delay was neither oppressive nor purposeful.

This court recently addressed a similar claim in Commonwealth v. Glover, 303 Pa.Super. 229, 449 A.2d 662 (1982). There relief was denied since the defendant had not asserted such a right during most of the delay. Furthermore while there was no reason to attribute the delay to the defendant he- was not prejudiced by the delay as he was free on bond.

In the current case the verdict was returned on February 12,1979. Appellant filed timely post-trial motions reserving a right to file additional reasons after the notes of testimony were transcribed. The last transcript was filed nine months later. Appellant filed no supplemental post-trial motions but did file a motion to dismiss based on the delay in the filing of the transcript; this was filed ten months after the verdict. In denying this motion the court found that post-trial motions had not been disposed of because defense counsel did not wish to argue such until furnished with the transcript. The court found that the Commonwealth had exerted reasonable efforts to obtain the transcript from the court reporter who had moved out of state. On appeal, the record before us fails to show that a hearing or argument was held on the motion to dismiss and no transcript has been filed of such proceeding. Therefore, we may not rely on the court’s finding that the Commonwealth had exerted a reasonable effort, as the record as it exists before this court, does not support such a finding. See Commonwealth v. Sinor, 264 Pa.Super. 178, 399 A.2d 724 (1979). Post-trial motions were disposed of three months later and sentence was imposed one month after that.

From the state of the record, we cannot find that appellant was responsible for the delay in the filing of the notes of testimony. However, similar to the situation in Glover, supra, appellant did not formerly raise the issue of delay until ten months had elapsed. Additionally, as in Glover, appellant was free on bail. See also, Common wealth v. Rutherford, 252 Pa.Super. 348, 381 A.2d 952 (1977) (31 month unexplained delay not prejudicial where defendant was free on bail). Therefore, we find that appellant was not prejudiced by the delay; the delay was not purposeful or oppressive.

Judgment of sentence is reversed and case remanded for a new trial.

      . Nine issues are presented; seven issues in appellant’s main brief and an additional two issues in a supplemental brief.

      . Appellant is represented by new counsel on appeal.

      . Appellant’s other contentions are that: the court erred in receiving into evidence the inventory and testimony which implicated him in other crimes, and indicated he had exercised his right to remain silent; counsel was ineffective in failing to seek recusal of the trial judge; and the court considered improper evidence at the sentencing stage and failed to advise him of his right to seek reconsideration.

      . We must address this issue, even though we find a new trial is required on other grounds, as this court held in Commonwealth v. Stewart, 221 Pa.Super. 1, 289 A.2d 126 (1972) that a violation of the principles of due process there occurred when sentencing was delayed eleven years requiring the defendant to be discharged.

      . In resolving this appeal we follow the guidance of the Supreme Court of the United States as applied by our Supreme Court. Any more definitive holding must come from such higher courts.

      . Appellant stated in his motion that it was raised monthly as the post-trial motions came up for argument, however no formal pleading was filed. See Pounds, supra.


author: HOFFMAN, Judge:

text:
    466 A.2d 145
    Craig CANTWELL v. ALLEGHENY COUNTY, a Municipal Corporation and a Political Sub-Division of the Commonwealth of Pennsylvania, Appellant, v. WILKINSBURG BOROUGH, a Municipal Corporation and Swissvale Borough, a Municipal Corporation and Ronald E. Lees. Craig CANTWELL, Appellant, v. ALLEGHENY COUNTY, a Municipal Corporation and a Political Sub-Division of the Commonwealth of Pennsylvania, v. WILKINSBURG BOROUGH, a Municipal Corporation and Swissvale Borough, a Municipal Corporation and Ronald E. Lees.
    Superior Court of Pennsylvania.
    Argued April 26, 1983.
    Filed Aug. 26, 1983.
    Reargument Denied Oct. 28, 1983.
    Petition for Allowance of Appeal Granted Jan. 31, 1984.

      Allan Joseph Opsitnick, Assistant County Solicitor, Pittsburgh, for Allegheny County, appellant (at No. 155) and appellee (at No. 368).
    Paul D. Boas, Pittsburgh, for Cantwell, appellant (at No. 368) and appellee (at No. 155).
    Herbert B. Conner, Pittsburgh, for Wilkinsburg, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the lower court erred in dismissing their complaints for failure to state a cause of action. We agree and, accordingly, reverse and remand.

In reviewing motions for judgment on the pleadings, the court must treat all well-pleaded allegations of the party opposing the motion as true and draw all inferences favorable to that party. Goldman v. McShain, 432 Pa. 61, 247 A.2d 455 (1968). So viewed, the facts are as follows: After a rape on November 13, 1975, Allegheny County’s crime lab found semen on brown slacks submitted for testing. The lab refused the Wilkinsburg police’ request for blood-typing tests, however, on grounds that such tests were not conducted until the police had a suspect. After a second similar rape on November 21, the lab found semen on clothing samples submitted by the Swissvale police, but conducted no blood-typing tests, and returned the evidence through the police to the victim. On samples submitted after a January 5,1976 rape, the crime lab incorrectly found no traces of semen. After an April 5 rape, the crime lab found semen but conducted no blood-typing tests. These four were among eight rapes the police and district attorney believed were committed by a single assailant. On April 17, one of the victims identified appellant Cantwell as the assailant. The Wilkinsburg police informed the crime lab they had a suspect and requested blood-typing tests, but the lab refused, stating the samples were now too old. Appellant was arrested, charged with all eight rapes, and jailed, in lieu of $105,000 bail, for five months pending trial. In late August, before trial, the lab refused another request for blood-typing tests. During appellant’s jury trial on September 14, 1976, a crime-lab employee admitted on cross-examination that blood-typing tests could still be performed on the samples. The tests were performed and conclusively established that appellant’s blood-type differed from the assailant’s. Consequently, on September 21,1976, all charges were dropped and appellant was released from prison.

Appellant commenced an action in trespass against Allegheny County on August 4, 1977, alleging that the crime lab was negligent in not promptly conducting the blood-type tests, in refusing the police requests for such tests, in surrendering custody of evidence, and in otherwise failing to exercise reasonable care in its investigatory role. Allegheny County complained against Wilkinsburg and Swiss-vale as additional defendants, alleging that their police departments negligently failed to cooperate with the crime lab. All defendants moved for and were granted judgment on the pleadings, prompting these appeals by Cantwell and Allegheny County.

Appellant Cantwell contends that the lower court erred in concluding that the crime lab owed him, a potential suspect, no duty of reasonable care in investigation. We find that the lab did owe a duty. One who undertakes to render services to another is liable to third persons physically harmed by negligence in that undertaking, if he “should recognize the services as necessary for the protection of a third person,” and if the failure to exercise reasonable care either “increases the risk of such harm” to the third person, or “is suffered because of the reliance of the other ... upon the undertaking.” Restatement (Second) of Torts, § 324A; Printed Terry Finishing Co. v. City of Lebanon, 247 Pa.Superior Ct. 277, 372 A.2d 460 (1977). Arrest and imprisonment, with their consequent detainment, confinement, and deprivation of liberty, constitute physical, rather than purely psychological, harms. See Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971). Investigative services in aid of prosecution are necessary not only to protect the public’s and victim’s interest in bringing the offender to justice, but also to protect the accused’s or potential suspect’s rights against false charges. Commonwealth v. Blagman, 458 Pa. 431, 433, 326 A.2d 296, 298 (1974) (“The police have an absolute duty to both the public and the accused to investigate the circumstances of a crime ... to ascertain the accused’s possible connection with the alleged offense.”). Police’ or prosecutor’s failure affirmatively to investigate potentially exculpatory evidence will not offend due process, especially where the evidence is known to the defendant and alternate proof is accessible. People v. Jenkins, 40 Cal.App.3d 1054, 115 Cal.Rptr. 622 (1974) (no blood-alcohol test that might have negated intent); Harris v. People, 174 Colo. 483, 484 P.2d 1223 (1971) (no test whether appellant’s knife contained human or animal blood); State v. Kelly, 110 Ariz. 196, 516 P.2d 569 (1973) (no investigation whether appellant’s face was scratched otherwise than during rape struggle). However, investigation and custody of evidence lack the discretionary character of initiating or presenting a case, and thus may be actionable if conducted in negligent disregard of the suspect’s or accused’s rights. McSurely v. McLellan, 697 F.2d 309 (D.C.Cir.1982). Although individual officials enjoy a “conditional immunity” against such actions to forestall undue timidity in discharging duties, id.; DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978); see Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (to be actionable against individual official, negligent conduct must violate “clearly established rights ... of which a reasonable person should have known,”); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), our courts, during the time relevant to this action, and in counter-balance to this immunity, imposed ordinary tort liability on governmental units for whom such officials acted. Muntan v. City of Monongahela, 45 Pa. Commonwealth Ct. 23, 406 A.2d 811 (1979). See 42 Pa.C.S.A. § 8501 et seq. (reinstating local government immunity, with exceptions, for actions arising after January 25, 1979); Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973) (abolishing local government immunity).

Applying these principles, we are satisfied the complaints stated causes of action. The alleged facts, if proven, would adequately support a finding that the crime lab’s failure to conduct the blood-type tests or to inform the police of their availability, both directly and through the foreseeable reliance of the police, increased the risk of appellant’s unjustified imprisonment. Similarly, the police, having undertaken to use the crime lab’s services, could be found liable for negligently failing to cooperate with the lab. No status-based immunities protect the local government agencies in this case. Accordingly, we reverse the judgment on the pleadings as to Allegheny County, Wilkins-burg, and Swissvale, and remand for further proceedings. Jurisdiction is not retained.

Reversed and remanded. Jurisdiction is not retained.

ROWLEY, J., concurs in the result.

POPOVICH, J., notes his dissent.

       Because Swissvale has not appealed the judgment on the pleadings in favor of police chief Randall Lees, whom Swissvale alleged was personally liable for any negligence on its part, we do not address or disturb the judgment in his favor.


author: MONTEMURO, Judge:

text:
    466 A.2d 148
    COMMONWEALTH of Pennsylvania v. Ricky HICKMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 12, 1983.
    Filed Sept. 2, 1983.
    Reargument En Banc Denied Oct. 25, 1983.
    Petition for Allowance of Appeal Denied Feb. 3, 1984.

      Arthur Henry James, Philadelphia, for appellant.

      Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County entered against the appellant, Ricky Hickman. Appellant was convicted, after a jury trial, of one count of robbery. After the denial of post-verdict motions, the appellant was sentenced to seven and one half (7V2) to twenty (20) years imprisonment; said sentence precipitating the present appeal.

Three issues are raised by the appellant herein. He contends that he was deprived of a fair trial because of improper remarks made by the district attorney during the trial, particulary in the examination of witnesses and in his closing statement. He also contends that he was denied his right to be judged by a jury of his peers by reason of the district attorney’s use of his peremptory challenges to exclude all black veniremen from the jury panel. Finally, he contends that he was prejudiced by the answer of a Commonwealth witness which related another crime committed by the defendant, and that the trial court erred in denying his motion for mistrial on this point. Because we agree that the appellant was deprived of a fair trial because of the remarks made by the district attorney throughout the trial, it is not necessary to consider the other issues. We therefore vacate the judgment of sentence and remand for a new trial.

The relevant facts are as follows. On December 13, 1979, at approximately 5:30—6:00 P.M., James Harris, the manager of a paint store in West Philadelphia, was depositing the daily receipts in the night depository of a branch office of the Central Penn National Bank. When Harris got out of his vehicle to deposit the receipts, a man holding a gun told him to hand over the money. Harris turned and looked at the man for approximately five (5) to eight (8) seconds. After Harris relinquished the money, the man told him to get in the car and drive away. Harris then drove to a gas station and reported the incident to the police.

The next day Harris was relating the details of the incident to a local patrolman in front of the paint store. At that time the appellant drove by and parked down the street. Harris said to the patrolman, “[t]hat’s the guy who robbed me.” The patrolman then took the appellant into custody.

At trial, the Commonwealth introduced the identification testimony of Harris. Defense counsel countered with an attack on the identification based on the circumstances under which it took place (rainy, twilight) and on Harris’ description of the facial hair of the perpetrator. The appellant also produced the alibi testimony of his mother, his girlfriend, his girlfriend’s father and girlfriend’s nephew.

Although the issues in this case were not complex, the proceedings were disproportionately protracted, to the extent of some five hundred (500) pages of transcript. One reason for this was a rather lengthy and disputed jury selection process which, and we say this only speculatively, might have stirred up some animosity between the district attorney and defense counsel. We mention this only to presage the verbal sparring which later occurred.

Turning to the law which is relevant to our inquiry, in Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973), the court held that:

Every unwise or irrelevant remark made in the course of a trial by a judge, a witness or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. (Citation omitted). Commonwealth v. Phillips, 183 Pa.Super. 377, 382, 132 A.2d 733, 736 (1957).

The supreme court has also said that “[t]he language must be such that its unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975). “ ‘[A] prosecutor may not express his personal opinion regarding a defendant’s guilt or credibility and, in doing so, clearly and improperly intrudes upon the jury’s exclusive function of evaluating the credibility of the witness.’ Commonwealth v. Gilman, 470 Pa. 179 at 180 and 191, 368 A.2d 253 at 258 and 259 (1977).” Commonwealth v. Swift, 291 Pa.Super. 90, 95, 435 A.2d 234, 236 (1981). “When the cumulative effect of improper remarks so prejudices the jury as to prevent a fair trial, a motion for mistrial must be granted.” Commonwealth v. Baranyai, 296 Pa.Super. 342, 348, 442 A.2d 800, 803 (1982). The proper action to be taken is a matter within the discretion of the trial court. Commonwealth v. Stoltzfus, supra.

Our review of the transcript of the trial convinces us that the cumulative effect of the district attorney’s improper remarks hindered the appellant’s ability to receive a fair trial. The preeminent purpose of the trial—the determination of the guilt or innocence of the accused—was subordinated to, or rather overshadowed by, the histrionics of the district attorney.

The most serious breach of the district attorney’s duty to refrain from improper remarks occurred during the cross-examination of James Harris, when defense counsel was attacking his description of the robber which was given to the police after the incident:

BY MR. JAMES:
Q. Now, sir, do you know what two or three day’s growth of beard is? You said—strike that question.
Would you say that man has two or three days’ growth of beard?
MR. CARPENTER: Objection.
THE COURT: Overruled.
MR. JAMES: You may answer the question.
MR. CARPENTER: Let him see the man. Come on over so he can see you. Get 5 feet [away] and point a gun in his face.

(N.T. 287). The district attorney’s statement was directed toward the defendant in the presence of the jury, and clearly demonstrates his preconceived notion of the defendant’s guilt. Defense counsel immediately raised an objection which was sustained by the trial judge, who also issued an instruction to disregard the comment. Defense also renewed a motion for mistrial which he had previously made. The trial court denied the motion. (N.T. 288).

If this were an isolated instance in the course of extended proceedings, we perhaps would consider the trial judge’s instruction sufficient to dispel the prejudice to the defendant. However, that instance followed closely an exchange between the district attorney and the witness, Harris, which defense counsel contends was also prejudicial.

Q. Do you think it’s usual for a person to go around taking other people’s money at gunpoint?
MR. JAMES: Objection.
THE COURT: Sustained.
Q. Isn’t that also—
MR. JAMES: Objection
THE COURT: Mr. Carpenter—
MR. CARPENTER: Your Honor—
THE COURT: It’s argumentative.
MR. CARPENTER: Wasn’t it when defense counsel asked?
THE COURT: Just one moment. I made a ruling. You will abide by the ruling.
Q. Do you think that’s the usual practice, for normal human beings to go robbing people at gunpoint?
MR. JAMES: Objection.
THE COURT: The objection is sustained.
Q. Is there any reason to assume that a holdup man is going to be a normal person?
MR. JAMES: Objection.
THE COURT: Sustained. Sustained.

(N.T. 284-285)

Again we do not see this exchange as being prejudicial per se; however, in conjunction with the district attorney’s other remarks, it contributes to a showing of the district attorney’s predisposition toward the defendant. This predisposition is also demonstrated in other remarks by the district attorney, who repeatedly made irrelevant remarks despite the attempts by the trial judge to end this behavior.

The defendant was also prejudiced by the comments made by the district attorney in his closing argument. In discussing the alibi testimony of the appellant’s girlfriend, Carol Stokes, he stated that defense counsel was “coaching the witness.” (N.T. 431), and goes on to assert “[n]ow, she didn’t make any mistake. That was her story. Now, apparently she didn’t get her story straight with the others.” (N.T. 431). Another time, speaking in reference to all of the appellant’s alibi witnesses, he says, “they are talking about something that is coming out of their imaginations.” (N.T. 434). Finally, in commenting on the alibi testimony of Christopher Ramsey, the nephew of Carol Stokes, he said “Of course, the young man will say—you can infer from his testimony that he would say anything you want.” He also said, “[a]nd you can conclude also that he’s not just wrong, that he’s lying.” (N.T. 437).

These comments on the credibility of the defendant’s witnesses were unnecessarily prejudicial. The fact that the district attorney used the terms “you can infer” and “you can conclude” does not diminish the overall prejudicial effect of his comments on the witnesses’ credibility. And, although the prosecutor may comment on the evidence and any inferences fairly derived from that evidence, the present remarks go beyond anything that could be considered fair comment. The district attorney’s allegations of “coaching” and the witnesses fabricating an alibi are purely conjecture unsupported by any evidence.

We conclude that the cumulative effect of the district attorney’s remarks so prejudiced the appellant that a fair trial was impossible. The status of the district attorney as an officer of the court places him in a position of trust with the responsibility to fairly and objectively prosecute criminals. It is in this light that he or she is seen by the jury, and, as such, his or her remarks are given weight by the members of the jury in reaching their determination. In the present case, the jury could not help but be swayed by the district attorney’s remarks on the guilt of the defendant as well as on the credibility of his witnesses. Accordingly, the judgment of sentence is vacated and the case remanded for a new trial.

Vacated and remanded. Jurisdiction is not retained.

POPOVICH, J., concurs in the result.

      . 18 Pa.C.S.A. § 3701(a).

      . In addition to the above-quoted remarks, the district attorney made several comments which connoted a lack of respect for defense counsel. At one point he interjected a response to the defense counsel’s request to the court to mark an exhibit, saying, "you can mark it Mona Lisa as far as I’m concerned. I don’t care.” (N.T. 293). Later on redirect examination of the witness Harris, again with regard to the identification and defense counsel’s attempt to cast doubt on Harris’ testimony, he said, “Now, defense counsel, you may have trouble describing beards; perhaps some other people have trouble reading.” (N.T. 295) This comment drew a strong admonishment from the judge. Finally, we note that the district attorney would often make comments which, while not prejudicial in themselves, were not appropriate in a judicial proceeding. (N.T. 263, 265, 273, 274, 290, 291, 324, 372).