author: BROSKY, Judge:

text:
    519 A.2d 433
    COMMONWEALTH of Pennsylvania v. Lester Roy NENNINGER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 22, 1986.
    Filed Dec. 19, 1986.

      Gary Lysaght, Lemoyne, for appellant.
    Merle L. Ebert, Jr., Harrisburg, for appellee.
    Before WICKERSHAM, BROSKY and WATKINS, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence entered pursuant to a jury trial in which appellant was found guilty of rape and involuntary deviate sexual intercourse.

Four issues are presented for our review: (1) whether the trial court properly allowed the admission of impeaching evidence consisting of two of appellant’s past crimen falsi crimes; (2) whether the trial court properly excluded evidence relating to the victim’s past sexual conduct under the Rape Shield Law; (3) whether the closing remarks of the District Attorney were a proper discussion of the evidence and the reasonable inferences to be drawn therefrom; and (4) whether the mandatory sentencing guidelines relating to the instant case are constitutionally valid. Upon consideration of the trial court opinion and briefs by counsel, we affirm the decision of the trial court.

Appellant’s first contention is that the trial court should not have permitted the prosecutor to introduce testimony of appellant’s convictions for burglary in 1979 and 1982. The Pennsylvania Supreme Court, in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), held that it is within the discretion of the trial court to decide whether crimes involving dishonesty or false statement may be used in a particular case to cast doubt upon the defendant’s veracity generally as a witness. In Commonwealth v. Roots, 482 Pa. 33, 39-40, 393 A.2d 364, 367 (1978), the Supreme Court set out the considerations governing the admissibility of prior convictions for impeachment purposes. These are: (1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; (2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; (3) the age and circumstances of the defendant; (4) the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and (5) the existence of alternative means of attacking the defendant’s credibility. Appellant claims that the prosecution failed to satisfy points 4 and 5, because appellant had no means, other than his own testimony, to defend himself, and the Commonwealth had a strong case and numerous witnesses to testify on the victim’s behalf. We disagree.

It is true that the Commonwealth had several medical personnel along with technical evidence to testify on behalf of the victim. In the instant case, though, appellant’s defense rested upon the theories that the victim consented to having sexual relations with him and appellant’s perception as to the victim’s age, not a denial that the parties engaged in sexual relations at all. Additionally, both sides presented witnesses; however none was an eyewitness to the incident. Thus, we had a “one on one” situation where it became a matter of the victim’s credibility versus that of the accused. Appellant brought forth witnesses to impeach the victim’s credibility. Therefore, it was crucial to the Commonwealth’s case to be permitted to impeach the credibility of appellant. Courts are more prone to find an abuse of discretion where the crime used for impeachment is the same crime which forms the basis for the present charge. Commonwealth v. Claypool, 317 Pa.Super. 320, 464 A.2d 341 (1983).

In the instant case, the prior convictions were for burglary, a crime involving dishonesty, Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971), which were used to discredit appellant’s veracity. They were not used to demonstrate appellant’s propensity to commit the crimes with which he is presently charged. To emphasize this, the trial court carefully instructed the jury to consider appellant’s past record only for the purpose of assessing credibility. Commonwealth v. Johnston, 258 Pa.Super. 429, 392 A.2d 869 (1978). Therefore, we do not find an abuse of discretion on the part of the trial court in its permitting the use of appellant’s prior burglary convictions to impeach his credibility.

Appellant’s second contention is that the trial court erred in refusing the defense the opportunity to question the victim concerning statements she made which might have supported appellant’s claim that he believed the victim to be over sixteen years of age. In resolving this issue, it is essential that we review the pertinent facts and testimony which have been best summarized by the trial court opinion as follows:

The victim testified that after she and the defendant left the car and walked into the woods the defendant stated to her “I want some lovin.” He grabbed her; she fought; he threatened to kill her; he forced her to perform oral sex and did not ejaculate; he forced her a second time to perform oral sex and ejaculated; he again grabbed her and threatened to kill her; she got loose and ran, tripped and her glasses fell off; he jumped on her and forced her to have oral sex a third time; he got up and vomited at which time she ran again; he tackled her and said, “I want it all and I’m going to get it;” he asked “how old are you” and she responded 15 after which he said “good cherry, I’m going to enjoy this.”
On cross examination the defendant sought to elicit a statement that the victim admits she made to him after his remark, which was “I’m not.” This testimony was taken out of the presence of the jury and the court excluded it from the jury on the basis that it violated the Rape Shield Law. The victim then testified that she further struggled with the defendant and an act of sexual intercourse was forced upon her.

Appellant contends that the inference he should have been allowed to raise, had he been permitted to elicit the response “I’m not” to her testimony that he said “good cherry, I’m going to enjoy this,”, is that she was not a virgin. Appellant maintains that this testimony was relevant to support what he claims was his reasonable belief that the victim was over fifteen years of age.

Pennsylvania’s Rape Shield Law provides:

Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence. 18 Pa.C.S.A. § 3104(a).

There have, of course, been exceptions to this rule. In Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983), the Supreme Court permitted evidence of the victim’s prior sexual conduct with a person other than the defendant allegedly occurring shortly before an alleged rape, in order to negate the inference that the objective signs of intercourse were caused by a rape. In Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985), the father of a thirteen year old victim of Statutory Rape and Incest was permitted to enter evidence of victim’s sexual relations with her brother in order to show the victim’s bias against her father. These are both unusual circumstances and are clearly distinguishable from the case at bar. No exception to the Rape Shield Law has ever been created to prove either consent or the accused’s perception as to the age of the victim. Furthermore, the victim testified that the forcible acts of oral intercourse took place before the statements were made; however, the defense of mistake as to age is only available as to the charge of involuntary deviate sexual intercourse, which had already occurred. Additionally, the victim testified that she told appellant that she was 15 years old, to which appellant responded, “Good cherry, I’m going to enjoy this.” Appellant’s response would appear to have had little to do with the victim’s age as opposed to her virginity. Thus, we agree with the trial court that further exploration of this matter was properly barred by the Rape Shield Law.

Appellant next contends that his counsel’s exceptions to the closing remarks of the district attorney were improperly dismissed by the trial court. We disagree. Appellant first objects to the prosecutor’s suggestion to the jury that appellant’s only defense was that of consent because he was aware of the medical reports indicating the physical evidence of the type of sexual contact described by the victim. According to appellant, these remarks imply that appellant fabricated the story to explain the evidence. The central issue in this case is whether there was consent to the acts which took place and whose version is correct. Thus, it is reasonable for each side to imply prevarication on the part of the other.

Appellant’s second objection concerns the prosecutor’s reiterating the comment “good cherry, I’m going to enjoy this,” as implying that the victim was a virgin. The statement was already admitted into evidence and, as discussed earlier, could not be used to comment upon the victim’s prior sexual conduct under the Rape Shield Law. Therefore, the trial court was correct in permitting the district attorney to repeat the comment as evidence of the forcible nature of the acts.

Appellant’s final objection to the prosecutor’s closing remarks concerns the district attorney admitting into evidence the victim’s clothing, and commenting that there was mud on the victim’s socks, despite the lack of expert testimony on the subject. We agree with the trial court that there was no need for expert testimony as to this matter, which was clearly within the common knowledge of the jury. The justification for dismissing all three of the exceptions above can be found in the decisional law of the Commonwealth. The courts have held that a prosecutor may make remarks on the evidence presented to a jury which point out any legitimate inference which may be drawn from that evidence. Commonwealth v. Tucker, 461 Pa. 191, 335 A.2d 704 (1975); Commonwealth v. Frazier, 331 Pa.Super. 128, 480 A.2d 276 (1984). As previously noted, we find that the prosecutor’s remarks suggest reasonable inferences to be drawn from the evidence. Therefore, we agree with the decision of the trial court to dismiss appellant’s exceptions.

Finally, we come to appellant’s claim of unconstitutionality with regard to the mandatory sentencing provisions. The trial court did not consider this issue because, at the time the trial court opinion was written, appellant had not yet been sentenced. Since then, sentencing has taken place and we are satisfied that this issue has been properly preserved for appeal. The Supreme Court of Pennsylvania has considered and affirmed the constitutionality of mandatory sentencing as regards the Doctrine of Separation of Powers and Procedural Due Process in the case of Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985). There, the court stated “[i]t is the providence of the Legislature to determine the punishment imposable for criminal conduct.” Id., 508 Pa. at 40, 494 A.2d at 361. Thus, we find appellant’s contention to be without merit.

Appellant claims that his sentence of 5V2 to 12 years in prison constitutes cruel and unusual punishment. Under 42 Pa.C.S.A. § 9718 (a) there is a five year mandatory minimum sentence for rape. Absent the mandatory minimum sentence, the Pennsylvania Sentencing Guidelines call for a minimum sentence of 6V2 to 8V2 years based upon appellant’s rape conviction and prior record score. Thus, there is no merit to appellant’s claim of cruel and unusual punishment.

Based upon the reasoning set forth above, we affirm the decision of the trial court.

Judgment of sentence affirmed.

      . The docket of the Superior Court lists the instant appeal as one from a judgment of sentence, while appellant's brief captions it as being from the Order denying appellant’s motions in arrest of judgment and for a new trial. Because all of the issues raised were properly preserved, we will address their merits despite the irregularity of form. See, Commonwealth v. Gumpert, 354 Pa.Super. 595, 512 A.2d 699 (1986).

      . 18 Pa.C.S.A. § 3121. Rape.
      A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
      (1) by forcible compulsion;
      (2) by threat of forcible compulsion that would prevent resistance ,by a person of reasonable resolution;
      (3) who is unconscious; or

      . See note 3 on page 448.

        (4) who is so mentally deranged or deficient that such person is incapable of consent.

      . 18 Pa.C.S.A. § 3102. Mistake as to age.
      Whenever in this chapter the criminality of conduct depends on a child being below the age of 14 years, it is no defense that the actor did not know the age of the child, or reasonably believed the child to be the age of 14 years or older. When criminality depends on the child’s being below a critical age other than 14 years, it is a defense for the actor to prove by a preponderance of the evidence that he reasonably believed the child to be above the critical age.

      . Involuntary deviate sexual intercourse.
      A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
      (1) by forcible compulsion;
      (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
      (3) who is unconscious;.
      (4) who is so mentally deranged or deficient that such person is incapable of consent; or
      (5) who is less than 16 years of age.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    519 A.2d 438
    John & Gloria VERSAK v. Antoinette WASHINGTON and Kevin Hill, Appellants.
    Superior Court of Pennsylvania.
    Submitted Sept. 2, 1986.
    Filed Dec. 22, 1986.

      Frank D. Branella, Philadelphia, for appellants.
    Kevin Livesay, Philadelphia, for appellees.
    Before WATKINS, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

This appeal is from an order entered October 18, 1985, denying appellants’ petition to open default judgment. We reverse and order that the judgment be opened.

On December 7, 1983, the automobile in which appellants, Antoinette Washington and Kevin Hill, were riding collided with the vehicle occupied by appellees, John and Gloria Versak. On December 14, 1983, appellees filed a claim in the Philadelphia Municipal Court against appellants for $476.18 in property damage. Appellants did not appear at the hearing scheduled for January 24, 1984, and the municipal court entered a default judgment for appellees in the requested amount. On January 25, 1984, the municipal court sent a notice to appellants, stating that a judgment had been entered against them and advising of the proper procedure to satisfy the judgment.

On February 6, 1984, appellants filed an appeal from the judgment of the municipal court to the Court of Common Pleas of Philadelphia County. On May 31, 1985, appellants filed a petition to open judgment in the municipal court, which was the correct procedure to obtain review of the judgment. The municipal court entered a rule to show cause why the judgment should not be opened, returnable June 20, 1985. On that date, the municipal court, without opinion, denied appellants’ petition. The record contains no transcript of the proceedings held on June 20, 1985. On July 18, 1985, appellants filed an appeal from the refusal to open the default judgment to the Court of Common Pleas of Philadelphia County. This appeal followed the common pleas court’s affirmance of the municipal court’s determination.

In their petition to open judgment, appellants alleged the following: They forwarded their copy of the statement of claim filed in the municipal court in December, 1983, to their attorney. This statement, which contained notice of the January 24, 1984 hearing, was received by the attorney on an unknown date before February 6, 1984. Appellants believed that by forwarding the statement to the attorney, their interests were adequtely represented, and they did not attend the January 24th hearing. Upon receipt of the notice that judgment had been entered, the attorney, acting upon erroneous advice by the municipal court clerk, filed a direct appeal to the court of common pleas instead of a petition to open in the municipal court. In May, 1985, counsel for appellees advised appellants that he would raise the default judgment as a res judicata or collateral estop-pel bar to a claim pending by appellants against appellees arising out of the same traffic accident. Appellants’ counsel then realized that he had proceeded incorrectly in 1984. Appellants also allege that they were not negligent in causing the accident, but, on the contrary, alleged that appellees’ negligence was the proximate cause of the incident. This presents a valid defense to the claim.

A petition to open default judgment should be granted if the petition has been promptly filed, the default can be reasonably explained or excused, and the existance of a meritorious defense to the underlying substantive claim is shown. Wolfskill v. Egan, 350 Pa.Super. 223, 504 A.2d 326 (1986).

The court of common pleas, sitting as an appellate court, found that appellants had a meritorious defense to the claim which was the subject of the default. The court refused to disturb the municipal court’s decision, however, stating only that appellants had “failed to satisfy either of the two remaining criteria.” Trial court opinion at 3, Reproduced record at A-4.

Appellees’ sole argument on the issue of delay is that the sixteen month postponement in filing the petition to open is “impossible ... to be considered prompt.” Appellees’ brief at 4. They contend that appellants’ direct appeal from the judgment is irrelevant because the Philadelphia Civil Rules clearly set forth the proper procedure to follow when default judgment is taken. Appellees further argue that appellants have failed to provide a reasonable excuse for not appearing at the January 24 hearing in that they were unjustified in relying upon counsel to proceed without them.

A petition to open default judgment is an appeal to the court’s equitable powers. While a-trial court decision will not be disturbed absent abuse of discretion, we act as a court of conscience in this instance. Brooks v. Surman Dental Lab, Inc., 262 Pa.Super. 369, 396 A.2d 799 (1979). Moreover, we have not hesitated to find an abuse of discretion where the equities favor opening judgment. Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982). We hold that the trial court’s decision is inconsistent with the equities in this case and that it abused its discretion in failing to open the judgment.

The common pleas court, acting as an appellate court, concluded, without a hearing or an opinion by the municipal court, that appellants failed to explain both their delay in filing the petition and their failure to appear at the hearing where default was entered. We disagree.

The explanation offered for delay in filing the petition to open judgment was the mistake by appellants’ attorney. Appellants did promptly file a direct appeal in the Court of Common Pleas on February 6, 1984, from the January 24, 1984 judgment. Their counsel failed to follow the proper procedure to obtain review of the judgment. The Pennsylvania Supreme Court has held, however, that a negligent mistake regarding the law by counsel is a sufficient explanation for a delay in filing á petition to open judgment where, as here, default judgment was entered on the date defendant’s failure to take action occurred and was entered without notice of intent to take default. Queen City Electric Supply Co. v. Soltis Electric Co., 491 Pa. 354, 421 A.2d 174 (1980).

Appellees are incorrect in asserting that a sixteen month delay can never be considered prompt. Provident Credit Corp. v. Young, supra (thirty-five month delay); Queen City Electric Supply Co. v. Soltis Electric Co., supra (twenty-two month delay); Sprouse v. Kline Styer-McCann, 237 Pa.Super. 419, 352 A.2d 134 (1975) (nineteen month delay). The test regarding delay is not based upon the length of the delay, but upon excuse for the delay. Butterbaugh v. Westons Shopper City, Inc., 300 Pa.Super. 331, 446 A.2d 641 (1982). In this case, the record is clear that counsel filed an appeal promptly after judgment was entered. His actions were not entirely unreasonable, since the notice of judgment did not state that it was a “default” judgment. Thus, the delay in this case is not unexcused. Cf. Schutte v. Valley Bargain Center, Inc., 248 Pa.Super. 532, 375 A.2d 368 (1977).

In addition, appellees could not have been prejudiced by the delay; they were placed on notice as a result of appellants’ filing the direct appeal that appellants were seeking review of the judgment. In the meantime, they made no attempt to collect on their judgment during the sixteen month period. See Queen City Electric Supply Co. v. Soltis Electric Co., 491 Pa. 354, 421 A.2d 174 (1980), where lack of prejudice was a key consideration in the Pennsylvania Supreme Court’s decision to open a default judgment.

We also disagree that appellants failed to explain the reason that default judgment was entered. They mailed the municipal court summons to their counsel and justifiably relied on him to protect their interests. Contrary to appellees’ assertion, clients are entitled to such reliance. Provident Credit Corp. v. Young, supra, 300 Pa.Super. at 127, 446 A.2d at 262. (“[AJppellant had the right to believe that her interests were being protected by this lawyer.”); Commonwealth Department of Transportation v. Nemeth, 497 Pa. 580, 584, 442 A.2d 689, 691 (1982) (“Any person entrusting a matter to an attorney in this Commonwealth should be able to believe that the matter will be competently and diligently handled.”).

Counsel’s failure to appear at the hearing was obviously inadvertent. He promptly attempted to remedy the entry of the default judgment when he received notice of it. Errors indicating an oversight by counsel are sufficient to explain entry of default judgment. See e.g., Cione v. Skyline Corp., 293 Pa.Super. 470, 439 A.2d 672 (1981) (inadvertent failure to communicate regarding attorney’s representation of former client in case under consideration was sufficient explanation for failure to file an answer). In fact, pertinent case law reveals that the power to open judgment should be exercised when the default is the result of oversight or mistake by counsel. Commonwealth Department of Transportation v. Nemeth, supra (attorney’s neglect of client’s affairs was sufficient to explain entry of default judgment); see also Bildstein v. McGlinn, 320 Pa.Super. 416, 467 A.2d 601 (1983).

Here the record establishes that appellants’ attorney did not make a deliberate decision not to defend the suit, which would preclude opening the judgment. See Keystone Boiler Works, Inc. v. Combustion & Energy Corp., 294 Pa.Super. 145, 439 A.2d 792 (1982) (attorney intentionally failed to defend suit instituted in Pennsylvania so he could attack judgment in New York, the “home” state); Nevils v. Cher-nitsky, 244 Pa.Super. 501, 368 A.2d 1297 (1976) (attorney deliberately did not defend action because client was judgment proof at the time suit was instituted). Thus, appellants have offered a reasonable explanation for entry of default.

We have noted that “[t]he rules permitting the entry of default judgments were designed to prevent a dilatory defendant from unreasonably thwarting plaintiff’s efforts to establish a claim. They were not intended to provide the plaintiff with a means of gaining a judgment without the difficulties which arise from litigation.” Bildstein v. McGlinn, supra, 320 Pa.Super. at 420, 467 A.2d at 603.

The record in this case shows that counsel’s failure to attend the hearing was a mistake rather than a decision to delay the proceedings to prevent appellees from establishing their claim. As all requirements to open judgment are present, Wolfskill v. Egan, supra, the default judgment should be opened. See Ackerman v. Port Authority, 323 Pa.Super. 375, 470 A.2d 640 (1984); Brusco Funeral Home v. Sicilia, 277 Pa.Super. 115, 419 A.2d 688 (1980).

Order reversed. Judgment opened. Jurisdiction relinquished.


author: ROWLEY, Judge:

text:
    519 A.2d 442
    COMMONWEALTH of Pennsylvania v. Ronald McCORMICK, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1986.
    Filed Dec. 8, 1986.

      Paul R. Gettleman, Pittsburgh, for appellant.
    Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before BROSKY, ROWLEY and POPOVICH, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from a judgment of sentence of six to twelve years imprisonment imposed following appellant’s conviction by a jury of two counts of robbery. Appellant raises two issues on appeal: 1) was trial counsel ineffective for (a) failing to request a hearing on the after-discovered alleged prejudice of several jurors and by (b) failing to call certain witnesses to discredit the identification of appellant; and 2) was his constitutional right of equal protection violated when all three black veniremen called as potential jurors were peremptorily challenged by the prosecution. We remand for a hearing on appellant’s equal protection claim.

I. Ineffective Assistance of Counsel

In assessing appellant’s claims of ineffectiveness, we must determine whether the issue underlying appellant’s claim of ineffectiveness is of arguable merit. If the court finds that the claim has merit, then the inquiry shifts to whether the course chosen by counsel had some reasonable basis directed at promoting the appellant’s interests. Finally, if the court finds that there was no reasonable basis for counsel’s actions, then the court must determine whether counsel’s errors so prejudiced appellant’s defense as to deny him a fair trial. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985).

A.

Appellant, who is black, first claims that counsel was ineffective because he failed to request a hearing when he learned, following the verdict, that some of the jurors were allegedly biased against blacks. At a post-trial hearing concerning the claim of counsel’s ineffectiveness, one of the jurors, Mrs. Healy, testified that based on certain statements made during jury deliberations, she thought four of the jurors were prejudiced against blacks and had determined the credibility of some of the witnesses based on their race. Mrs. Healy testified that on voir dire, none of the jurors admitted that race would affect their deliberations. However, Mrs. Healy also testified that when she confronted the jury members with her belief that they were racially prejudiced, they denied her allegations. The record shows that neither Mrs. Healy, nor anyone else, specifically identified what racially discriminatory statements the other jurors made. Appellant also did not present the testimony of the jurors who allegedly were biased. The allegations that racially discriminatory remarks were made during jury deliberations by jurors and that some jurors were racially prejudiced were not substantiated. Furthermore, Mrs. Healy herself admitted that the jurors who were allegedly biased had denied such bias. Therefore, the trial court found that appellant had shown neither bias nor prejudice. We agree that appellant has not shown any merit to his underlying claim of ineffectiveness.

Furthermore, counsel testified that he did not request a hearing because it was his understanding of the law that he could not call a juror to testify to impeach the other jurors under the circumstances of this case. The general rule is that a juror may not impeach his or her own verdict after the jury has been discharged, but discharged jurors can testify regarding outside influences during their deliberation. Commonwealth v. Syre, 348 Pa.Super. 110, 501 A.2d 671 (1985); Commonwealth v. Fuller, 336 Pa.Super. 507, 485 A.2d 1197 (1984) and cases cited therein. Because there is no allegation that there were extraneous facts, evidence, or opinions relayed to the jury which might have influenced it, under the general rule, neither Mrs. Healy nor any of the other jurors should have testified. When assessing counsel’s ineffectiveness, we must follow the law as defense counsel knew it at the time of trial. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Bradley, 332 Pa.Super. 99, 480 A.2d 1205 (1984). Considering that there was no law allowing a juror to impeach his own verdict, counsel’s failure to request a hearing was reasonably based. Therefore, even if there were merit to appellant’s underlying claim, we would not find counsel to have been ineffective.

B.

Appellant’s second assertion of ineffectiveness of counsel is that counsel should have called the two police officers who received the descriptions of the two robbers from the complaining witnesses and appellant’s brother, Tyrone, to discredit the identification of appellant as the gunman. The original written police description of the robbers depicted the gunman as being approximately 5'7" and 170 pounds. At the time of his arrest, appellant was 511" and 145 pounds. Appellant argues that counsel should have called the police officers to testify to this initial description because it was so different from appellant’s own physical characteristics. Appellant also argues that counsel should have called Tyrone to the stand so that the jury could see him since Tyrone’s physique more closely fit the initial description of the gunman.

Trial counsel testified that he did not call the police officers because a third police officer, Officer Hart, had already testified in a way which minimized the discrepancy in weight and height such that there was no issue left to argue to the jury. Officer Hart testified that the police officers who wrote the description of the robbers established the precise figures of 5'7" and 170 pounds from the victims’ demonstration with their hands of the robbers’ size. When one of the police officers reviewed the written report with one of the victims, the victim told him that the gunman was 5'11". Considering the evidence concerning the initial police report, the identification of appellant, and counsel’s stated reason for not calling the two policemen as witnesses, we find that appellant’s claim of error is without merit and that counsel’s action had a reasonable basis. Therefore, counsel was not ineffective.

Appellant’s argument that his brother Tyrone should have been called as a witness is also without merit. At an in camera hearing, Tyrone affirmatively invoked his Fifth Amendment right to remain silent. The Commonwealth may not call a witness when it is known that he actually will invoke the Fifth Amendment privilege against self-incrimination. Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983). There was no question here that Tyrone would invoke his Fifth Amendment rights if he were called to the stand in the presence of the jury. Although it would have been appellant and not the Commonwealth who would have called him, the possibility of prejudice to the defendant as a result of the jury seeing Tyrone invoke the Fifth Amendment coupled with counsel’s expressed concerns that the jury might perceive Tyrone as the accomplice whose existence had previously been suggested in the trial, thereby bolstering the testimony of the Commonwealth’s witnesses, provide a reasonable basis for not calling Tyrone. Therefore, we do not find counsel to have been ineffective.

II. Use of Peremptory Challenges

During jury selection, the Commonwealth peremptorily struck three of the four black veniremen in the panel. The fourth black venireman was not reached during voir dire. Thus, appellant, was tried by an all-white jury. Appellant objected to the allegedly racially discriminatory use by the Commonwealth of its peremptory challenges, but his objection was overruled. Again in his post-trial motions, appellant raised the issue of discrimination in selection of the jury, but he was denied relief. On appeal, appellant argues that he has established a prima facie case of racial discrimination under Batson v. Kentucky, — U.S. —, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which was decided while this case was pending on appeal, and therefore the case should be remanded for a hearing to determine whether the Commonwealth’s use of peremptory challenges to strike the only black veniremen reached on voir dire was racially discriminatory and a denial of appellant’s equal protection rights. The Commonwealth argues that Batson should not be applied retroactively to appellant’s case which was pending on appeal when Batson was decided.

In Batson, the Supreme Court re-examined its rule announced in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) concerning the evidentiary burden of a defendant who claims that the government’s use of peremptory challenges was racially discriminatory and therefore denied him equal protection. Under Swain, a defendant had to prove that the prosecution had established a pattern, in numerous cases, of peremptorily striking veniremen of a particular race in order to establish a prima facie case of invidious racial discrimination because the prosecution was entitled to the presumption that in a particular case, its peremptory challenges were properly exercised. In Batson, the Supreme Court altered the prerequisites for a defendant to establish a prima facie case of intentional discrimination and held that a prima facie case could be established based solely on facts pertaining to the defendant’s own trial.

The Batson requirements for establishing a prima facie case of intentional racial discrimination are: 1) that the defendant is a member of a cognizable racial group and that the prosecution used peremptory challenges to remove from the venire members of the defendant’s race; 2) that the defendant can rely on the presumption that peremptory challenges to veniremen permit discrimination by those inclined to do so; and 3) that the facts and relevant circumstances raise the inference that the prosecutor used the peremptory challenges to racially discriminate. Batson, Id., 106 S.Ct. at 1723. Once these three requirements are satisfied, the burden shifts to the prosecution to explain adequately the racial exclusion. Id., at 1721.

In this case appellant has established that he is a member of the black race which is a cognizable racial group. The fact that all of the black veniremen reached on voir dire were peremptorily stricken by the Commonwealth raises the inference that the peremptory challenges were used to discriminate. Thus appellant has established a prima facie case of racial discrimination under Batson. Therefore, if Batson is to be given retroactive application, we must remand for a hearing at which the Commonwealth can present evidence adequately to explain the racial exclusion.

Initially, we note that a prior decision of a panel of this Court has already applied Batson to a defendant whose conviction was not final at the time of Batson and who was pursuing a direct appeal. Commonwealth v. McKendrick, 356 Pa.Super. 64, 514 A.2d 144 (1986). In McKendrick, the Court did not address the question of retroactive application of Batson. Rather, it assumed sub silento that Batson should be given retroactive application. After discussing the new rule of Batson, the Court summarily stated:

We have applied Batson and find appellant has not made a prima facie case.

McKendrick, Id., 356 Pa.Superior Ct. at 76, 514 A.2d 144. Because McKendrick did not discuss the issue of retroactivity but because the issue has been raised and thoroughly briefed and argued in this case, we will address it and not simply rely on McKendrick’s assumption of the retroactive application of Batson.

In Batson itself, the majority did not address the issue of retroactive application of its decision. However, four of the nine justices opined that the decision should not be given retroactive effect. However, because the issue was not before the Court, we cannot consider the dictum concerning retroactivity to be controlling in this case and neither is it appropriate to guess how those justices who did not express an opinion on the retroactivity issue would have decided the issue had it been properly before them.

Two months after the Batson decision, the Supreme Court, by a Per Curiam opinion, held that Batson should not be given retroactive application to collateral review of convictions that became final (i.e., appellate rights exhausted) before Batson was announced. Allen v. Hardy, — U.S. —, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). However, the instant case is distinguishable from Allen because appellant is not seeking collateral review but is pursuing a direct appeal and because his conviction was not final at the time Batson was decided.

Not only is Allen not binding authority on the issue of retroactivity in this case because Allen is distinguishable on the facts, but Allen is not binding authority because neither the federal nor the state constitution dictate which decisions must be given retroactive effect. Commonwealth v. Geschwendt, 500 Pa. 120, 454 A.2d 991 (1982). Therefore Pennsylvania is not compelled to follow the U.S. Supreme Court’s decisions on the retroactivity of new decisional law. Commonwealth v. McFeely, 509 Pa. 394, 502 A.2d 167 (1985). Although we have considered the analysis of the Per Curiam opinion of the Court in Allen, we disagree with some of the conclusions reached therein, and because we are not bound by the Supreme Court’s decision, we do not follow it.

Several approaches have been used to analyze the propriety of retroactive application of new decisions. The common law approach set forth in U.S. v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801) is that an appellate court must apply the law as it exists at the time of its decision. Therefore, new decisions always have retrospective application to cases pending at the time of the decision. However, a modified form of the common law approach creates an exception to this rule where the new rule is a “clear break with the past” or where there are constitutional limitations. U.S. v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). Alternatively, a court can selectively apply a decision retroactively. Under the selective approach, the court considers: 1) the purpose to be served by the new standard; 2) the extent of reliance by law enforcement authorities on the old standard; and 3) the effect on the administration of justice. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Where the purpose of the new standard affects the truth finding function, thereby raising serious questions about the accuracy of prior guilty verdicts, the new rule has been given complete retroactive effect. Williams v. U.S., 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971).

In recent years, the Pennsylvania Supreme Court has used each of these approaches. In Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980), the Court quoted and applied the selective retroactivity test of Stovall. However, the following year in Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905 (1981) in holding that the new rule regarding a jury charge where insanity is raised as a defense must be applied retroactively, the Court reiterated the common law rule stating:

our rule in civil cases which applies the law in effect at the time of the appellate decision applies with equal force to criminal proceedings.

Id., 494 Pa. at 384, 431 A.2d at 907.

The following year, 1982, a plurality of the Court followed the U.S. Supreme Court’s decision in Johnson which was an application of the modified common law rule. Commonwealth v. Geschwendt, 500 Pa. 120, 454 A.2d 991 (1982). In Geschwendt, the plurality held that its reversal of the Court’s prior position regarding jury instruction where the insanity defense is raised constituted the “clearest possible example” of a clear break with the past. Id., 500 Pa. at 131, 454 A.2d at 997. The Court’s new rule regarding the insanity defense was therefore not held to be retroactive.

The next year, 1983, the Pennsylvania Supreme Court cited Brown, which had espoused the common law approach to the question of retroactivity. Commonwealth v. Cabe-za, 503 Pa. 228, 469 A.2d 146 (1983). In Cabeza, the issue before the Court was the retroactivity of the new rule regarding the scope of cross-examination of character witnesses with regard to mere arrests of the defendant. The Court held:

where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.

Id., 503 Pa. at 233, 469 A.2d at 148.

In 1985, the Pennsylvania Supreme Court followed the modified common law rule as it had done in its prior plurality decision in Geschwendt. Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). It held that the decision of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) did not create any new rights for a defendant but simply changed the analysis of the sufficiency of the probable cause allegation in a search warrant. Because the new decision in Gates did not create any new rights, none of the defendant’s reliance interests were violated, and therefore, the Gates decision was held to be retroactive.

In a decision decided the day after Gray the Pennsylvania Supreme Court rejected the modified common law approach espoused in Johnson (and incidentally followed in Gray) and reaffirmed its prior decision in Miller which was reached by applying the Stovall selective retroactivity test. Commonwealth v. McFeeley, 509 Pa. 394, 502 A.2d 167 (1985).

Finally, in a recent decision filed October 16, 1986, the Pennsylvania Supreme Court again applied the common law rule reiterated in Cabeza and the selective retroactivity test of Stovall and held that its decision in Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981), concerning the applicability of double jeopardy principles to felony-murder sentencing, was to be given retroactive application only to those cases in which the double jeopardy issue had been preserved and which were on direct appeal when Tarver was decided. Commonwealth v. Harper, 512 Pa. 155, 516 A.2d 319 (1986).

Although it is not clear that Pennsylvania follows any one particular rule for determining the retroactive effect of new decisions, we find that under any of the various standards which the Pennsylvania Supreme Court has applied, Batson should be applied retroactively.

First, under the common law rule followed in Brown, Cabeza, and Harper, Batson would have to be applied retroactively. No language in the Batson decision mandates that Batson shall not be retroactive, and Batson is the current law now when we decide appellant’s appeal. Therefore, we should apply Batson retroactively to appellant’s case.

Secondly, the exception to the common law rule in the modified common law approach followed in Geschwendt and Gray is inapplicable here. Although the Commonwealth argues that Batson is a “clear break with the past” because it overrules prior law as in Geschwendt, Batson does not create or diminish any substantive right of either the appellant or the Commonwealth. Rather, it is similar to the new rule applied retroactively in Gray. Whereas in Gray the new rule merely changed the analysis of the sufficiency of probable cause, here, Batson only changes the allocation of the burden of proof. The parties’ underlying rights have not been altered. Purposeful racial discrimination by the Commonwealth in the selection of jurors is a principle which has been repeatedly condemned. Batson, Id., 106 S.Ct. at 1716. By announcing a new test for a prima facie case of invidious racial discrimination in selection of a jury, the Court did not now make unconstitutional that which was never unconstitutional before.

Moreover, the Court’s decision in Batson was not a clear break with the past. In Batson, the Court unequivocally and repeatedly stated that the standards for assessing a prima facie case of discrimination of veniremen can be discerned in the Supreme Court’s decisions since Swain. Id., at 1721 and 1722. Because the standards for establishing a prima facie case of intentional racial discrimination in the selection of veniremen has gradually developed from the time of the decision in Swain until the Court’s compilation and summary of those standards in Batson, Batson was not a clear break with past practices even though Batson represents a new conclusion, for the present, of the developmént of the law since Swain. For this reason we find that Batson does not fall into the Johnson exception to the common law retroactivity rule.

Finally, under the principles used to assess the propriety of retroactive application under the selective retroactivity theory, we find no reason not to give retroactive effect to Batson. First, the purpose of the new rule in Batson is to provide a more effective means of ensuring that members of racial minorities are not excluded from the jury for discriminatory reasons and to ensure to a defendant the right to be tried by his peers, which may include other members of his own race. Because the systematic exclusion of veniremen of a particular race removes from the jury the human experiences common to that racial group, and because a jury applies to its decisional responsibilities its collective human experiences, the decisions reached by a jury from which minority races are excluded may differ from the decision reached by a jury from which no one is excluded by race. Thus the discriminatory racial exclusion of minorities from juries affects the decisional, truth-finding function of juries. Because the rule in Batson will assist in ascertaining when racial minorities have been discriminatorily excluded from the jury, and because the exclusion of minorities from the venire affects the essential, decisional, truth-finding function of the jury, the purpose of the Batson rule weighs in favor of retroactive application. Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984).

Although we recognize that the purpose of the rule in Batson serves not only the truth finding function, but also affects the rights of those who are members of a racial minority to serve as jurors, and impacts on the public’s perception of a fair and just administration of justice, these additional purposes of the Batson rule do not diminish the impact of the rule on the truth-finding function of the jury. Therefore, we find that the additional purposes to be served by the Batson rule do not reduce the weight to be accorded to the purpose of the rule in our assessment of the retroactive application of the rule.

Secondly, because Batson does not alter the well-established principle recognized in Swain, that the Commonwealth cannot intentionally remove veniremen because of their race, we find that the impact of the prosecution’s reliance on Swain is minimal. Now, as before, the Commonwealth is required not to discriminate. Although under Batson it is easier for a defendant to make a prima facie case of discrimination, and therefore the Commonwealth may be called upon to explain its use of peremptory challenges more frequently than in the past, the Commonwealth now, just as under Swain, is prohibited from using the peremptory challenges discriminatorily. Therefore, the only thing which existed under Swain but which no longer is available to the prosecution is . the presumption in any given case that its peremptory challenges were not imper-missibly racially motivated. The only impact the prosecution’s reliance on Swain could have would be to cause the Commonwealth to have fewer hearings at which it had to explain its use of peremptory challenges. The Batson rule would not seriously interfere with the prosecution’s reliance on Swain, and therefore we find that the Commonwealth’s reliance on Swain carries little weight in deciding that Batson should not be applied retroactively.

Finally, the Commonwealth has shown no detrimental impact on the administration of justice if Batson is given retroactive effect. The Commonwealth has not even suggested that there are numerous cases which are not yet final in which the facts establish a prima facie case of discrimination under Batson but not under Swain. Even if there are numerous such cases, the only additional burden on the administration of justice would be the holding of hearings at which the Commonwealth, if its use of peremptory challenges was proper, should be able quickly to establish the propriety of its conduct by asserting the reason for its use of the peremptory challenges. Thus, we find that the impact on the administration of justice that the retroactive application of Batson would have is minimal.

In summary we find that Pennsylvania is not bound to follow the U.S. Supreme Court’s decision on retroactivity. Pennsylvania has applied the common law, the modified common law, and the selective approach to determining the retroactivity of new decisions. Under each of these analy-ses, we find that there is nothing precluding retroactive application of Batson on direct appeal from convictions which were not final at the time of Batson. Therefore, we hold that Batson shall be applied retroactively to cases pending on direct appeal at the time Batson was decided where the objection to the Commonwealth’s use of peremptory challenges has been properly preserved. Consequently, in this case, we must vacate the judgment of sentence and remand for an evidentiary hearing at which the Commonwealth may present evidence of a neutral explanation for its use of the peremptory challenges. Batson, Id., 106 S.Ct. at 1725. If the trial court concludes that the Commonwealth’s use of its peremptory challenges was not discriminatory, then judgment can be reimposed and appellant will have the opportunity to pursue a direct appeal, from the judgment. If the trial court concludes that the Commonwealth’s actions were discriminatory, then it can grant appellant a new trial.

Judgment of sentence vacated and case remanded for an evidentiary hearing on appellant’s equal protection claim. Jurisdiction is not retained.

      . The issue of the admissibility of Mrs. Healy’s testimony was raised at the hearing but was never resolved by the trial court.

      . See: Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977).

      . See: Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977).

      . In Gates, the Supreme court held that the Aguilar and Spinelli test for determining whether an informant’s tip establishes probable cause for issuance of a search warrant would be abandoned in favor of a "totality of the circumstances" approach.


text:
    519 A.2d 450
    Howard F. DALE v. The BALTIMORE & OHIO RAILROAD COMPANY, a corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1986.
    Filed Dec. 8, 1986.

      Ralph G. Wellington, Philadelphia, for appellant.
    William R. Caroselli, Pittsburgh, for appellee.
    Before BROSKY, ROWLEY and POPOVICH, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from the Judgment entered on a jury’s verdict in favor of plaintiff, Howard F. Dale, following the denial of post-trial motions and the assessment of delay damages pursuant to Pa.R.C.P. 238. The plaintiff brought this action in trespass under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 (1972) (FELA), for injuries he sustained in the course of his employment with appellant, The Baltimore & Ohio Railroad Company (B & 0). Plaintiff alleged that he was totally disabled as a result of developing asbestosis from continuous exposure to asbestos dust in the course of his employment as a pipefitter for B & O from 1944 to 1955, and that his disability was caused by the negligence of B & O. It is undisputed that the plaintiff suffered from asthma since childhood.

B & 0 presents six issues for review. After having thoroughly reviewed the record and after having carefully reviewed the arguments of the parties and amicus curiae, we vacate and remand.

B & 0 first argues that the trial court erred by instructing the jury that it knew or should have known that plaintiffs on-the-job exposure to asbestos-containing products presented an unreasonable risk of harm. The trial court found that the instruction was proper in light of exhibits that were admitted into evidence at trial by the plaintiff. The exhibits consisted of minutes of meetings held by the Medical and Surgical Section of the American Association of Railroads between 1932 and 1953. B & 0 was a member of the Association and its medical officer was a member of the Medical and Surgical Section. He attended the meetings that were memorialized in the minutes. Also, the president of B & 0 was a member of the Board of Directors of the Association during the relevant time period.

The trial court summarized the undisputed aspects of the case and the relevant contents of the exhibits as follows:

During the relevant period of time the B & 0 knew that its steam locomotive engines were insulated with asbestos-containing material; it also knew that its employees, of which Dale was one, in the repair and maintenance of its steam locomotives worked with the asbestos-containing material. Exhibits 7 through 18 clearly establish that the B & 0, during the relevant period, learned that dust may be a hazard to health, producing pathology; that dust pathology may occur in any occupation where dust is produced and inhaled in sufficient quantities over a long enough period of time; that pulmonary disorders were especially prevalent in employees engaged in dusty occupations; that all pathology caused by inhalation of dust is known as pneumoconiosis; that pneumoconiosis is a condition that may be caused by any kind of dust entering the lung; that a committee of the Medical and Surgical Section of the American Association of Railroads defined and described the condition of pneumoconiosis, or dust disease of the lungs and mentioned silicosis and asbestos as forms of the diseases most interesting to railroad surgeons.

Trial court’s op. at 9-10; see also appendix A to trial court’s op. The trial court further noted that B & 0 conceded that the exhibits revealed a generalized awareness that dust, including asbestos dust, was a potential source of lung disease. Trial court’s op. at 10. Based on thése exhibits, the trial court charged the jury that

I, as the judge, have concluded, as a matter of law, and you will accept this as a matter of law, that the Baltimore and Ohio Railroad did, between 1944 and 1955, knew [sic] or should have known of the hazards to health from exposure to the dust of asbestos____ Thus, as a matter of law, the B and 0 would owe a duty to protect its workers from the health hazards which could result from the exposure to dust of asbestos when the circumstances so require during the period 1944 through 1955.

R.R., Vol. Ill, 676a-677a.

B & 0 argues that the trial court’s decision to remove this issue from the jury was error because reasonable minds could differ as to the conclusion to be drawn from the exhibits as to B & O’s knowledge of the risk posed by plaintiff’s exposure to asbestos-containing products. Specifically, B & 0 argues that the minutes do not 1) specify the quantity of dust required to cause injury or the length of exposure to cause injury; 2) what particular class of railroad workers were at risk, and 3) that injury to a secondary user of asbestos-containing products was likely or reasonably probable. In short, B & 0 submits that the minutes do not indicate that the Medical and Surgical Section of the Association viewed asbestos as posing an unreasonable risk of injury to railroad workers.

The FELA is based on common law concepts of negligence and injury subject to such qualifications as the Congress has placed on those terms. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). “What constitutes negligence for the statute’s purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes. Federal decisional law formulating and applying the concept governs.” Id. at 174, 69 S.Ct. at 1027 (footnote omitted). Thus, “negligence, within the meaning of the [FELA], attached if respondent ‘knew, or by the exercise of due care should have known,’ that prevalent standards of conduct were inadequate to protect petitioner and similarly situated employees.” Id. at 178, 69. S.Ct. at 1028 (citations omitted). In an FELA action, the procedural rules applied are those of the forum; however, a federal substantive right cannot be lessened by a state rule of procedure. Castro v. Chicago, Rock Island & Pacific Railroad Company, 83 Ill.2d 358, 47 Ill.Dec. 360, 415 N.E.2d 365 (1980), cert. denied, 452 U.S. 941, 101 S.Ct. 3086, 69 L.Ed.2d 956.

In the present case, B & O notes that the same issue is raised in either federal or state courts concerning whether a factual issue should be submitted to the jury: could there be but one reasonable conclusion on the matter? After having thoroughly reviewed, the record, we conclude that the trial court has adequately discussed and properly disposed of the issue. See trial court’s opinion at 5-12.

Because we find no error in the trial court’s removal of the issue from the jury, we also find no merit to B & O’s second issue. In its second issue B & 0 argues that the trial court erred in ruling that the testimony of Dr. Hin-shaw and Dr. Parkinson was irrelevant. This testimony was offered by both the plaintiff and B & 0 on the issue of whether B & 0 knew or should have known of the hazards to its employees’ health as a result of exposure to asbestos dust during the relevant time period. This testimony became irrelevant once the trial court properly concluded that B & 0 owed a duty to its employees to protect them against the hazard. Id.

B & 0 next argues that the trial court erred by failing to instruct the jury, as requested by B & 0, that it would only be liable to the plaintiff for damages resulting from injuries caused by its negligence, and not for damages resulting from the plaintiff’s hereditary asthma. B & 0 concedes that it would be liable if its negligence aggravated the plaintiff’s pre-existing asthma, but only for damages caused by the aggravation and not for the underlying disease itself. B & 0 sought to charge the jury that it “should not consider any pecuniary loss caused by [plaintiff’s] lung problems which would have resulted independently of the asbestos exposure.” B & O’s brief at 36.

The trial court charged the jury that “where the railroad’s negligence causes in whole or in part an injury to its employee, the railroad is liable for the entire amount of damages and there is no provision for reduction of damages for any causes which concur with the railroad’s negligence in causing the injury.” R.R. 704a; trial court’s op. at 15-16. The charge was based on the decision in Farmer v. Pennsylvania Railroad Co., 311 F.Supp. 1074 (W.D.Pa.1970).

Following the charge, B & 0 objected to the damage portion of the charge on the basis that it made no allowance for innocent causes; that B & 0 was not responsible for any disability which might result from the asthma, and that the plaintiff had the burden of allocating that portion which might be attributed to pre-existing conditions and that portion which might be attributed to the asbestos. R.R., Yol. Ill, 87.

The trial court properly focused on federal substantive law in considering appellant’s request for charge. The measure of damages in an FELA case is determined by federal law even though the action is brought in state court. Humphries v. Pittsburgh & Lake Erie Railroad Co., 328 Pa.Super. 119, 476 A.2d 919 (1984). Thus, we may not consider the damage apportionment formula espoused in Martin v. Johns-Manville Corp., 349 Pa.Super. 46, 502 A.2d 1264 (1985) since the claims in that case were founded on state law.

In Farmer v. Pennsylvania Railroad Co., supra., an FELA action, the railroad negligently exposed plaintiff to Varnolene mist. At trial, plaintiff established that as a result of this exposure his lungs became more susceptible to tuberculosis and he subsequently contracted the disease. The railroad sought a jury charge that “if plaintiff’s condition was caused jointly by defendant’s negligence and by cigarette smoking, the jury should apportion damages between these two causes and award only those damages which were caused by defendant’s negligence.” Id. at 1076. The request was denied and the railroad sought a new trial. The District Court rejected the railroad’s contention by construing the “in whole or in part” language of section 51 of the FELA statute as precluding the requested charge:

Where a railroad’s negligence causes, in whole or in part, an injury to its employee, it is liable for the entire amount of damages, and there is no provision for reduction of damages for innocent causes which concur with the defendant’s negligence in causing injury.

Id. at 1076-1077 (emphasis in original; citations omitted).

We reject B & O’s attempt to factually distinguish the present case from Farmer. In both cases the railroad alleged that there were two causes of the plaintiffs’ harm: one produced by the railroad, and one as a result of conditions beyond the railroad’s control. These two causes resulted in a single harm to the plaintiff, his permanent disability. It was the duty of the trial court to apply the applicable federal law and we find no abuse of its discretion in its reliance on Farmer. See Mohn v. Hahnemann Medical College, 357 Pa.Super. 173, 515 A.2d 920 (1986) (it is not the trial court’s duty to decide when and to what extent, if any, case law has lost its vibrancy so as to signal its demise).

B & 0 and the amicus also argue that the trial court erred in applying Farmer because other courts have reached a contrary conclusion under the FELA. See Holladay v. Chicago, Burlington & Quincy Railroad Co., 255 F.Supp. 879 (S.D.Iowa 1966) (although plaintiff is entitled to damages for aggravation of a pre-existing condition, he is not entitled to recover for damages which would have resulted from his previous condition without the aggravation); Matthews v. Atchison, T. & S.F. Railway Co., 54 Cal.App.2d 549, 129 P.2d 435 (1942) (same). However, while decisions in other circuits or other district courts are entitled to serious consideration, they are not binding on a District Court. Philadelphia World Hockey Club, Inc. v. Philadelphia Hockey Club, Inc., 351 F.Supp. 457 (E.D.Pa.1972). We find no reason for not applying the same rule to the trial court in the present case when it sought to ascertain the relevant federal law on the issue. Accordingly, we find no abuse of discretion in the trial court’s refusal to charge as requested by B & O.

B & 0 also argues that the trial court erred in refusing to instruct the jury on contributory negligence, and that the verdict was grossly excessive. We have reviewed the record and have accorded due consideration to the arguments advanced by B & O. Judge Silvestri has adequately discussed and properly disposed of the issues in his opinion.

Finally, B & 0 argues that it is not liable for the payment of any delay damages under Pa.R.C.P. 238 because the present action was brought under the FELA. This same argument was explicitly rejected in Humphries v. Pittsburgh & Lake Erie Railroad Company, 328 Pa.Super. 119, 476 A.2d 919 (1984) and we are bound by that decision. However, during the pendency of the present appeal, the Pennsylvania Supreme Court filed its decision in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986) which, by its terms, directly impacts on the applicability of Rule 238 to the present case.

In Craig, a medical malpractice action, the trial court added delay damages to the jury’s verdict for plaintiff pursuant to Rule 238. On appeal, defendant argued that Rule 238 was unconstitutional and that the delay was the fault of the plaintiffs, not the defendant. The Supreme Court concluded that Rule 238 violated the Due Process clause by denial of a forum to assess fault for the delay, and that the rule established an uncontestable presumption that the defendant was responsible for the delay. The Court also noted that the rule was a substantive enlargement of the duty owed by the defendant. The Court immediately suspended “those mandatory provisions of Rule 238 which assess delay damages against defendants without regard to fault____” Id., 512 Pa. at 65, 515 A.2d at 1353. The suspension of the rule was to be given prospective effect only:

Those parties whose cases are now in the appellate or post-trial process, who have not asserted attacks on the Rule %38 aspect of the damage award, may not now assert such challenges. However, in those cases where the issue has been preserved, the court before whom the case resides on or after this date is to resolve the issue in a manner consistent with this opinion.

Id., 512 Pa. at 66, 515 A.2d at 1353.

In the present case, B & 0 has argued that it is not liable for the payment of any delay damages under Rule 238. Although B & 0 did not specifically raise the issue of fault for delay, the trial court did assess delay damages against it and B & 0 has properly preserved for review the issue of its liability under Rule 238. Accordingly, we find that Craig is applicable to the present case and that the appropriate method of resolving the issue is to remand the case to the trial court for an evidentiary hearing to be held in accordance with the dictates of Craig. The trial court may order the parties to proceed on the matter by petition and answer. Craig provides guidance to the trial court in considering and ruling on the 238 issue:

Prior to reaching a decision, the judge may hold a hearing to resolve any factual disputes____ In making a decision on a plaintiffs entitlement to delay damages the mere length of time between the starting date and the verdict is not to be the sole Criterion. The fact finder shall consider: the parties’ respective responsibilities in requesting continuances, the parties’ compliance with rules of discovery; the respective responsibilities for delay necessitated by the joinder of additional parties; and other pertinent factors.

Id., 512 Pa. at 65-66, 515 A.2d at 1353 (footnote omitted). With these guidelines in mind, the trial court can properly assess fault, if any, in delay.

Judgment vacated. The case is remanded to the trial court for further proceedings consistent with the foregoing opinion. Jurisdiction is relinquished.

      . Although the plaintiff was employed by B & O until 1981, his exposure to asbestos ended in 1955 when steam locomotives were replaced by diesel locomotives.

      . Amicus curiae briefs and reply brief were filed by the Association of American Railroads, the National Association of Railroad Trial Counsel, the Consolidated Rail Corporation and the National Railroad Passenger Corporation.

      . The exhibits are not part of the original record as certified to us. However, the relevant portions of the exhibits were read to the jury at trial, R.R., Vol. II, 332a-345a, and B & O did not dispute the authenticity of the exhibits.

      . B & O and amicus also offer Akers v. Norfolk & Western Railway Co., 417 F.2d 632 (4th Cir.1969) (per curiam) in support of their attack on Farmer. We find Akers to be distinguishable. In Akers, the Court held that the District Court had correctly charged the jury when it protected "the defendant against any award of damages 'for any condition existing prior to the alleged injury for which [the railroad] was not in any way responsible in causing or aggravating.’ ’’ Id. In the present case, there was evidence that the asbestos aggravated the plaintiffs pre-existing asthma.


author: TAMILIA, Judge:

text:
    519 A.2d 456
    Frank E. HELSEL, Appellant, v. BLAIR COUNTY CHILDREN AND YOUTH SERVICES and Betty L. Spangler.
    Superior Court of Pennsylvania.
    Argued April 15, 1986.
    Filed Dec. 8, 1986.

      David M. Axinn, Erie, for Blair County, appellee.
    Paul S. Foreman, Altoona, for Spangler, appellee.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   TAMILIA, Judge:

This is an appeal from an Order placing custody of Betty Gene Helsel with her mother, Betty Spangler, and her maternal grandparents. The Order also directed Betty Spangler to undergo counseling on parenting skills and required supervision of the child by the Welfare Department with periodic reports to the court. -

Betty Gene Helsel was born in 1975 to Gene Helsel and Betty Spangler. Frank Helsel, appellant, is the halfbrother of Betty Gene. He was living with his father and Betty Spangler at the time of Betty Gene’s birth.

Gene Helsel and Betty Spangler had an unstable relationship which included large periods of time residing apart. Betty Gene remained with her father until his death on July 4, 1980.

Immediately after Gene Helsel’s death, a dispute arose between Frank Helsel and Betty Spangler concerning custody of Betty Gene. On July 11, 1980, a juvenile petition apparently was filed and an Order issued placing the child with Blair County Children and Youth Services, Inc.

A dependency hearing was held on July 23, 1980 (N.T. 10/27/80). On the same day, a Petition for Writ of Habeas Corpus was filed by appellant and the court issued the Writ scheduling a hearing for October 10, 1980. On August 4, 1980, the court issued an Order directing home studies of appellant and Betty Spangler to be completed prior to the October 10 hearing. Hearings were held October 27, 1980 and August 14,1981. At the October hearing, upon motion of appellant’s attorney, the prior testimony of the July 23 hearing was incorporated into the proceedings. On March 21,1983, the Order, which is the basis of the present appeal, was filed. At that time, the child was removed from foster care and placed in the custody of her mother and maternal grandparents.

A review of the record reveals numerous problems which prevent a disposition on the merits of the arguments raised by appellant. The initial difficulty is determining the exact nature of the adjudication made by the court. The Order of March 1983, from which the appeal is taken, specifically states in pertinent part:

Now, this 17th day of March, 1983, the above identified matter having come before this Court on the Petition of

Frank E. Helsel for Writ of Habeas Corpus____

Order filed March 21, 1983, Peoples J.

The Opinion prepared by the trial judge states:

From the inception of the litigation in this matter, this Court has consistently regarded the entire proceeding as one relating to a dependency petition filed in the interests of Betty Gene Helsel, a minor child, and not a custody proceeding.

Opinion, Peoples, J.

We are thus faced with a discrepancy, for the Order, on its face, is a custody Order resulting from a Habeas Corpus action, yet the trial judge emphatically states it is the result of a dependency determination.

The record, apart from statements by the parties in their briefs, is void of entries as to a dependency determination. Although the filing of a dependency petition is discussed, this petition has not been made part of the record. In addition, the testimony of the July 23, 1980 dependency hearing is not part of the record, in spite of the fact that this testimony was incorporated into the record by the granting of a motion at the October 27, 1980 hearing (N.T. 10/27/80, p. 5).

Determining the nature of the Order is not crucial, however, for whether it is construed as a custody Order resulting from a Habeas Corpus action or a disposition resulting from a dependency petition it is improper. This finding is based upon our conclusion that the Writ of Habeas Corpus was improperly issued and a determination of dependency never made.

In order to properly explain our ruling, it is necessary to discuss the actions taken along with those which would be appropriate under the circumstances.

Initially it must be noted that the father, up until his death, had unchallenged custody of the child, and at the time of his death, the appellee/mother was living with him. Following the death until the time of the funeral, the appellee along with Betty Gene, stayed with appellant and his girlfriend. It was during this time that a dispute arose between the parties as to who should have the child. As a result of this dispute the child was placed with the Blair County Children and Youth Services and the petition alleging dependency apparently filed.

If we assume the filing of a dependency petition and the establishment of a hearing date were proper under the circumstances herein, the problems presented here are rooted in the action taken by the court in granting the petition for a writ of habeas corpus on the day of the dependency hearing.

A writ of habeas corpus was an accepted means of ascertaining and enforcing the right to custody of a child. Reilly v. Reilly, 219 Pa.Super. 85, 280 A.2d 639 (1971); Jones v. Kniess, 249 Pa.Super. 134, 375 A.2d 795 (1977); Adriance v. Adriance, 329 Pa.Super. 168, 478 A.2d 16 (1984). However, the status of the petitioner and the timing of the petition are important factors in determining the propriety of this means of relief.

To invoke the aid of habeas corpus for the purpose of determining custody of an infant, the petitioners for the writ must show a prima facie legal right to such custody.

Commonwealth ex rel. Ebel et ux v. King et al., 162 Pa.Super. 533, 58 A.2d 484 (1948).

In the present case, although the petitioner was the halfbrother of Betty Gene and had resided in his father’s home along with her, this did not establish a legal right to custody. Appellant was not a parent, nor was he acting in loco parentis. His relationship as a half brother did not confer a right of custody upon him. Absent a prima facie right to custody he lacked standing to seek custody through a writ of habeas corpus.

Parents have a prima facie right to custody which may be forfeited if convincing reasons appear that the best interests of the child will be served by awarding custody to someone else.

In Re Custody of Hernandez, 249 Pa.Super. 274, 284, 376 A.2d 648, 653 (1977). Citations omitted.

The appropriate manner for a party such as appellant to seek a forfeiture of the parental rights is for the party to file a petition for a dependency determination under 42 Pa.C.S.A. § 6334. See Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974). It is important to note that the best interests of the child do not become a concern immediately. The initial phase of the proceeding is a hearing to ascertain whether the child is presently without proper parental care and whether such care is not immediately available. In Re Frank W.D., 315 Pa.Super. 510, 462 A.2d 708 (1983), 42 Pa.C.S.A. § 6302. At this stage, the burden is on the party seeking to take the child from its parent(s) to prove by clear and convincing evidence that the child is dependent. The “clear and convincing evidence” standard of proof has been imposed by the Supreme Court of the United States upon proceedings to terminate rights of parents to their natural children. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The standard for adjudicating a child dependent is also “clear and convincing evidence.” 42 Pa.C.S. § 6341(c). In Re Interest of Anita H., 351 Pa.Super. 342, 505 A.2d 1014 (1986).

If dependency is found the court then makes a disposition under 42 Pa.C.S.A. § 6351 which provides in pertinent part:

§ 6351. Disposition of dependent child
(a) General rule. — If the child is found to be a dependent child the court may make any of the following orders of disposition best suited to the protection and physical, mental, and moral welfare of the child:
(1) Permit the child to remain with his parents, guardian, or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child.
(2) Subject to conditions and limitations as the court prescribes transfer temporary legal custody to any of the following:
(i) Any individual resident within or without this Commonwealth who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child.
(ii) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child.
(iii) A public agency authorized by law to receive and provide care for the child.
(3) Without making any of the foregoing orders transfer custody of the child to the juvenile court of another state if authorized by and in accordance with section 6363 (relating to ordering foreign supervision).
(b) Limitation on confinement. — Unless a child found to be dependent is found also to be delinquent he shall not be committed to or confined in an institution or other facility designed or operated for the benefit of delinquent children.

A review of this statute and case law establishes that this is the phase of the bipartite proceeding where the best interest analysis is used in deciding the custody question. In Interest of Theresa E., 287 Pa.Super. 162, 429 A.2d 1150 (1981); Adriance, supra. Only then may a parent be denied custody of the child and only upon a showing of clear necessity. 42 Pa.C.S. § 6341(c).

The importance of not allowing an improper use of habeas corpus becomes apparant when we view the present case. If appellant were allowed to proceed on a writ of habeas corpus, the sole issue before the Court would be the best interest of the child. Beichner v. Beichner, 294 Pa.Super. 36, 439 A.2d 737 (1982). There is no requirement in a habeas corpus action that a determination, by clear and convincing evidence, be made that the child is dependent, as in a dependency proceeding. Section 6341(c), supra. A parent’s prima facie right to custody could thus be challenged without a clear and convincing showing that the child is not receiving proper parental care. This is not appropriate when the party seeking custody lacks a legal basis to claim custody equal with that of the parent. It is an unacceptable means of circumventing the procedures established to determine the necessity of forfeiting parental rights. Conversely, we have frowned upon the use of a dependency proceeding as an alternative to a custody proceeding because it invokes the intrusion of the state in regulating the family through intervention of social agencies and controls over parental interaction with their children. Theresa E., supra. Thus, parents should not be filing dependency petitions if no serious neglect is involved and the issues relate only to the child’s best interests, whereas third parties should not be permitted to file custody actions if they do not have standing, and are permitted to file dependency actions only if it appears there is serious threat to the welfare of the child.

In addition to the lack of standing of the petitioner, we think the writ was also improperly issued in light of the timing of the petition. The child was under the care of the Children and Youth Services with no necessity of an immediate disposition of custody to prevent harm. The dependency proceeding was presently before the court and resolution of the action would decide the issue raised in the petition for a writ of habeas corpus. See Commonwealth v. Edberg, 346 Pa. 512, 31 A.2d 84 (1943).

We next focus on the reasons for our finding that the Order does not qualify as a custody determination under 42 Pa.C.S.A. § 6351.

As noted above (footnote 1) we find no record of a dependency petition ever having been filed. Without a petition, the court had no jurisdiction to proceed in the dependency action. Assuming a petition had been filed, the posture of this case is still unredeemable.

First and most important is the fact that no dependency determination had been made. It is clear from the statute that a dependency determination is a prerequisite to a disposition on the custody issue. 42 Pa.C.S.A. § 6341 provides in pertinent part:

§ 6341. Adjudication
(a) General rule. — After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child, or if the petition alleges that the child is delinquent, whether the acts ascribed to the child were committed by him. If the court finds that the child is not a dependent child or that the allegations of delinquency have not been established it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.
(c) Finding of dependency. — If the court finds from clear and convincing evidence that the child is dependent, the court shall proceed immediately or at a postponed hearing, which shall occur not later than 20 days after adjudication if the child has been removed from the home to make a proper dispostion of the case.

See also Anita H., supra; In Interest of Ryan Michael C., 294 Pa.Super. 417, 440 A.2d 535 (1982).

A thorough review of the record indicates no finding of dependency was ever made. Thus any attempted disposition is improper. Ryan, supra. In Re Davis, 288 Pa.Super. 453, 432 A.2d 600 (1981); Hemenway v. Hemenway, 284 Pa.Super. 481, 426 A.2d 149 (1981).

An added problem is the apparent combination of the habeas corpus action with the hearing on dependency in violation of 42 Pa.C.S.A. § 6336(a). This statute provides:

§ 6336 Conduct of Hearings
(a) General Rule — Hearings under this chapter shall be conducted by the court without a jury in an informal but orderly manner, and separate from other proceedings not included in section 6303.
(relating to scope of chapter)
(emphasis added)

Section 6303 provides:

§ 6303. Scope of chapter
(a) General rule. — This chapter shall apply exclusively to the following:
(1) Proceedings in which a child is alleged to be delinquent or dependent.
(2) Transfers under section 6322 (relating to transfer from criminal proceedings).
(3) Proceedings arising under Subchapter E (relating to dispositions affecting other jurisdictions).
(4) Proceedings under the Interstate Compact on Juveniles, as set forth in section 731 of the act of June 13, 1967 (P.L. 31, No. 21), known as the “Public Welfare Code.”
(b) Minor judiciary. — No child shall be detained, committed or sentenced to imprisonment by a district justice or a judge of the minor judiciary. 1976, July 9, P.L. 586, NO. 142, § 2, effective June 27, 1978. As amended 1978, April 28, P.L. 202, No. 53, § 22, effective June 27, 1978.

A habeas corpus action is not included in section 6303 and thus it was improper to combine the two actions. See Matter of Jackson, 302 Pa.Super. 369, 448 A.2d 1087 (1982).

In summary, although there is a discrepancy as to the nature of the Order appealed from, there is no basis to uphold the Order whether it is a custody Order resulting from a habeas corpus action or a disposition under the “Juvenile Act”, 42 Pa.C.S.A. § 6351.

Since we find the writ of habeas corpus was improperly-issued, the Order if it can be construed to be a custody Order is revoked. In addition since there has been no determination of dependency, the Order cannot be a disposi-tional Order under 42 Pa.C.S.A. § 6351 and if held out as such is a nullity. Thus the present Order has no legal import.

As a result of this finding, the child is in the custody of her mother and maternal grandparents under color of a court Order, which has no legal effect. Since it has been three years since the child was placed with these parties and apparently treatment has been such that further action or change in custody was not warranted, it would appear that an inquiry is required as to the present care and treatment, and/or need for continued intervention, requiring C.Y.S. to remain involved.

We remand for a determination of whether a new petition for dependency need be filed. If further intervention is required, a petition is to be filed and proceedings in conformance with the Juvenile Act are to be conducted, otherwise the case should be closed.

Order vacated, case remanded for further action in accordance with this Opinion.

Jurisdiction relinquished.

      . Both parties and the lower court discuss this petition and Order but they are not part of the record. Neither could it be located upon inquiry to the clerk’s office of the lower court.

      . A transcript of this hearing is not part of the record.

      . The lower court Opinion was submitted to this Court in 1986.

      . The relief previously available by habeas corpus is now supplied by a motion for special relief under Pa.R.C.P. 1915.13.

       62 P.s. § 731.