text:
    554 A.2d 974
    COMMONWEALTH of Pennsylvania v. Robert M. PANKRAZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1989.
    Filed March 8, 1989.
    Petition for Allowance of Appeal Denied Aug. 3, 1989.

      David L. Shenkle, Doylestown, for appellant.
    Stephen B. Harris, Assistant District Attorney, Warring-ton, for Com., appellee.
    Before WIEAND, MONTEMURO and HOFFMAN, JJ.
   WIEAND, Judge:

Robert M. Pankraz was tried by jury and was found guilty of simple assault, indecent assault, corruption of a minor, recklessly endangering another person and endangering the welfare of a child. Post-trial motions were denied, and Pankraz was sentenced to serve a term of imprisonment for not less than two and one-half (2V2) years nor more than five (5) years. On direct appeal from the judgment of sentence, Pankraz contends that the evidence was insufficient to sustain the findings of guilt, that the alleged victim was incompetent to testify because of her age, and that she should not have been allowed to be seated in her grandmother’s lap while testifying. We find no merit in these arguments and affirm the judgment of sentence.

Amy Hayes, the daughter of appellant, was four years of age at the time of the trial. She testified that, on an occasion prior to the time when she had gone to live with her maternal grandmother in October, 1986, appellant had repeatedly inserted a sharp object, which she believed to be a screwdriver or knife, into her vagina. With the assistance of an anatomically correct doll and a pen she was able to demonstrate the assault which had been made upon her by appellant. Her testimony was corroborated in part by Dr. Cynthia A. Briede, who had examined the child and found a “skin tag” in her vaginel tract. The doctor explained that the skin tag was not of recent origin, that the tag was the result of a scarring process following a trauma to the vaginal tract, and that much of the healing process had occurred. The injury, she said, was consistent with the placing of a screwdriver or knife in the child’s vagina. The doctor also ruled out as possible causes a birth defect, a congenital defect, an infection, or the falling from a bicycle or bed. She concluded: “What I can say with certainty is that it would have to have been some sort of trauma to cause a tearing or a laceration of the mucosa, that there was injury to the mucosa probably with some bleeding at that time which has since healed and where the tissue came back together, it’s caused a scar.”

The child’s testimony was also corroborated in part by her paternal and maternal grandmothers. While her diaper was being changed, the child told her paternal grandmother that “my daddy hurts me here” and placed her finger on her vagina. Her maternal grandmother testified that while Amy had been at her house she complained about soreness in the area of her vagina and that a visual examination had disclosed the area to be red and sore.

Appellant asks that we review the sufficiency of the evidence after eliminating the testimony of the child who, he contends, was an incompetent witness. It is well settled, however, that in determining the sufficiency of the evidence to support the verdict, we are required to consider all evidence actually received, whether the trial court’s rulings on evidence were correct or incorrect. See: Commonwealth v. Manhart, 349 Pa.Super. 552, 556, 503 A.2d 986, 988 (1986); Commonwealth v. Nelson, 320 Pa.Super. 488, 494, 467 A.2d 638, 641 (1983); Commonwealth v. Minnis, 312 Pa.Super. 53, 55, 458 A.2d 231, 232 (1983). When all the evidence is examined in the instant case, it is clear that it was sufficient to support the verdict.

Appellant contends also that inserting a knife or screwdriver into the vagina of a child does not constitute corruption of a minor.. It does not constitute a violation of 18 Pa.C.S. § 6301, he argues, because “[i]t is obvious that the activity alleged did not give the child the sort of illicit pleasure which might tend to corrupt.” (Appellant’s brief at p. 3). We disagree.

Corruption of minors is defined by statute as follows:

(a) Offense defined. — Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, is guilty of a misdemeanor of the first degree.

18 Pa.C.S. § 6301(a) (emphasis added). In construing this statute, the Superior Court has said:

[T]he Commonwealth need not prove that the defendant’s acts actually corrupted the minor’s morals, but only that they tended to do so. See e.g. Commonwealth v. Davison, 243 Pa.Super. 12, 14 n. 1, 364 A.2d 425, 426 n. 1 (1976). Nor is the Commonwealth required to prove any particular sort or number of acts. In Commonwealth v. Mezaros, 194 Pa.Super. 462, 168 A.2d 781 (1961), this court said:
‘Tending to Corrupt’ like ‘contributing to delinquency’ is a broad term involving conduct toward a child in an unlimited variety of ways which tends to produce or to encourage or to continue conduct of the child which would amount to delinquent conduct: Commonwealth v. Stroik, 175 Pa.Super. 10, 15, 102 A.2d 239 [1954]; Commonwealth v. Palmer, 192 Pa.Super. 607, 609, 162 A.2d 34 [1960].

Thus, in Commonwealth v. Doyle, 275 Pa.Super. [373], 418 A.2d 1336 (1979) we affirmed a conviction of corruption of a minor where the basis for the charge was various acts of deviate sexual intercourse. See also Commonwealth v. White, 232 Pa.Super. 176, 335 A.2d 436 (1975) (conviction of corruption of minors where defendant attempted sexual assault of young girl). The point is extensively discussed in Commonwealth v. Randall, 183 Pa.Super. 603, 133 A.2d 276 (1957), cert. denied, 355 U.S. 954, 78 S.Ct. 539, 2 L.Ed.2d 530 (1958). There the defendant argued that the predecessor of the present statute was so vague as to violate due process. In upholding the statute, this court, ERVIN, J., stated:

The comprehensive words of the statute, “Whoever, being of the age of twenty-one years and upwards, by any act corrupts or tends to corrupt the morals of any child under the age of eighteen years” certainly convey concrete impressions to the ordinary person. The common sense of the community, as well as the sense of decency, propriety and the morality which most people entertain is sufficient to apply the statute to each particular case, and to individuate what particular conduct is rendered criminal by it.

Id. 183 Pa.Super. at 611, 133 A.2d at 280.

Commonwealth v. Wolff, 273 Pa.Super. 27, 31-32, 416 A.2d 1072, 1074 (1979), overruled on other grounds, Commonwealth v. Anderson, 379 Pa.Super., 589, 550 A.2d 807 (1988) (en banc). See also: Commonwealth v. Mumma, 489 Pa. 547, 555, 414 A.2d 1026, 1030 (1980); Commonwealth v. Todd, 348 Pa.Super. 453, 462 n. 2, 502 A.2d 631, 635-636 n. 2 (1985); Commonwealth v. Burak, 232 Pa.Super. 499, 504-505, 335 A.2d 820, 822 (1975); Commonwealth v. White, 232 Pa.Super. 176, 183, 335 A.2d 436, 439 (1975).

We reject appellant’s argument that his conduct could not have corrupted or tended to corrupt his daughter because it was not the kind of conduct which would have aroused or satisfied a sexual desire on the part of the child. As a matter of “[t]he common sense of the community, as well as the sense of decency, propriety and the morality which most people entertain,” Commonwealth v. Randall, 183 Pa.Super. 603, 611, 133 A.2d 276, 280 (1957), cert. denied, 355 U.S. 954, 78 S.Ct. 539, 2 L.Ed.2d 530 (1958), quoted in Commonwealth v. Wolff, supra 273 Pa.Super. at 32, 416 A.2d at 1074, a jury could find that appellant’s conduct tended to corrupt the morals of his minor daughter. It introduced this child to conduct which violated the sense of decency and propriety which most people entertain. Thus, we conclude that the evidence was sufficient to support the jury’s finding that appellant violated the provisions of 18 Pa.C.S. § 6301.

The standard used to determine the competency of children to testify was stated in Commonwealth v. McEachin, 371 Pa.Super. 188, 537 A.2d 883 (1988), as follows:

When evaluating the competency of children to testify, we are guided by the following principles:
A witness is presumed competent to testify unless proven otherwise. Commonwealth v. Riley, 458 Pa. 390, 326 A.2d 384 (1974). When a proposed witness is under fourteen years of age, however, there must be a searching judicial inquiry as to mental capacity. Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694 (1980). This inquiry will probe the capacity to communicate, observe and remember, and a consciousness of the duty to speak the truth in proportion to the witness’s chronological immaturity. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959).... [T]he judge holds the superior opportunity to evaluate the competency of a proposed child witness____ Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604 (1983).

Commonwealth v. Stohr, 361 Pa.Super. 293, 522 A.2d 589 (1987).

Our Supreme Court has mandated that in evaluating competency, the trial court must be satisfied that the witness has:

“(1) such capacity to communicate, including as it does both an ability to understand questions and to frame express and intelligent answers; (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that [the witness] is called to testify about; and (3) a consciousness of the duty to speak the truth.”
Rosche v. McCoy, 397 Pa. 615, 620, 156 A.2d 307, 310 (1959) (emphasis in original). See also Commonwealth v. Baker, 466 Pa. 479, 485, 353 A.2d 454, 457 (1976). Commonwealth v. Hart, 501 Pa. 174, 177, 460 A.2d 745, 747 (1983). Determination of competency will not be disturbed on appeal absent a clear abuse of discretion. Id.

Id. at 371 Pa.Super. 192-193, 537 A.2d at 885-886. See also: Commonwealth v. Bristow, 372 Pa.Super. 48, 54-56, 538 A.2d 1343, 1346-1347 (1988).

The trial court reviewed the issue of the child’s competency in its opinion as follows:

The record will reveal that the Court, prior to the trial and in the absence of the jury, conducted a comprehensive competency hearing. This hearing involved extensive questioning by both prosecution and defense to determine whether the child understood the need to tell the truth. During that hearing the following exchange occurred between the assistant district attorney and the witness:
Q: Amy, do you know what book that is that you just put your hand on?
A: Uh-huh.
Q: What book is it?
A: Bible book.
Q: Who is in the Bible?
A: Jesus.
Q: Does Jesus want you to tell the truth or to tell a lie?
A: To tell the truth.
Q: What do you think Judge Kane wants you to do, to tell the truth or to tell a lie?
A: To tell the truth. (Vol. I, N.T. 6)

This line of questioning was followed by a series of leading questions designed to ascertain if the child knew the difference between the truth and a lie. For example; the child was asked by the female Assistant District Attorney, “If I told you that I was a boy, would that be the truth or a lie?” and she responded “a lie” (Vol. I, N.T. 7). At another point, “and if I told you that your gram-my took the batteries out of the baby doll today, would that be the truth or a be?” and the child answered, “the truth” (Vol. I, N.T. 7-8).

In response to these and other similar questions asked by both the Assistant District Attorney and counsel for the defendant, this Court satisfied itself that the child understood the difference between the truth and a falsehood and understood she had a duty to speak the truth. At that point we instructed counsel to inquire into the child’s capacity to observe the occurrence with the requisite degree of accuracy, the child’s ability to remember the event, and the child’s ability to understand questions and communicate intelligent answers about the event. We were constrained to require such an inquiry by Commonwealth v. Fultz, 316 Pa.Super. 260, 462 A.2d 1340, 1343 (1983). We were satisfied following that extensive inquiry, which encompasses thirteen (13) pages in the Notes of Testimony, that this child, albeit four years old at the time of her testimony, indeed had the ability to observe what happened to her with accuracy and further exhibited the ability to remember that awful and unfortunate occurrence and speak about it intelligently (compare: Commonwealth v. Short, [278 Pa.Super. 581] 420 A.2d 694 (Pa.Super.1980)____

As a result of the inquiry into the child’s competency to testify, we were satisfied that the Commonwealth had in fact established that this child was competent and it was only at that point that the trial commenced and the jury heard her testimony. We did however, grant counsel for the defense a continuing objection and continued to take under advisement the competency issue, stating that if at any point in the proceedings in response to questions of counsel we determined our ruling to be in error or that the child during her questioning and testimony failed to demonstrate that capacity to observe or ability to remember or communicate or exhibited a lack of consciousness to tell the truth, we would reverse our ruling (Vol. I, N.T. 34-35). We listened again to the child’s chilling testimony of the events that occurred, and at no point in the course of the proceedings did we feel this child was not competent to testify.

(Trial Court Opinion at pp. 4-7) (footnote omitted). After carefully reviewing the record in the instant case, we find no abuse of discretion in the trial court’s ruling that the minor victim was competent to testify.

It is well settled that the trial court has broad discretion concerning the general conduct of the trial. Commonwealth v. Thomas, 346 Pa.Super. 11, 20, 498 A.2d 1345, 1349 (1985). See also: Commonwealth v. Pittman, 320 Pa.Super. 166, 172-173, 466 A.2d 1370, 1373 (1983); Commonwealth v. Niemetz, 282 Pa.Super. 431, 444-445, 422 A.2d 1369, 1376 (1980). “The examination of witnesses has always been and still remains subject to the control of the trial court in whom there is vested a large discretion.” Commonwealth v. Dress, 354 Pa. 411, 414, 47 A.2d 197, 199 (1946). Moreover, while our research has disclosed no case law in this Commonwealth which passes upon the propriety of allowing a child witness to give testimony while sitting in the lap of an adult, the courts of other jurisdictions have said that in cases involving a child witness, “an attendant may be permitted to sit upon the witness stand near the witness, where the attendant is admonished that he [or she] is not permitted to make suggestions to the witness.” 81 Am.Jur.2d, Witnesses, § 416, at 422. See: Evers v. State, 84 Neb. 708, 121 N.W. 1005 (1909), overruled on other grounds, State v. Brockman, 184 Neb. 435, 168 N.W.2d 367 (1969) (trial court in prosecution for statutory rape did not err in allowing adult lady friend of eight year old victim to sit in close proximity to victim while she testified); Gould v. State, 71 Neb. 651, 99 N.W. 541 (1904) (no prejudicial error in prosecution for child stealing where trial court allowed father of child witness to sit near witness during her testimony, since record disclosed no improper conduct by father nor any influence by father on his daughter’s testimony); Rodgers v. State, 30 Tex.App. 510, 17 S.W. 1077 (1891) (no error in prosecution for statutory rape in permitting aunt of ten year old victim to sit near witness during her testimony as trial judge had warned aunt not to speak to or prompt witness and aunt complied with warning); State v. Keeley, 8 Utah 2d 70, 328 P.2d 724 (1958) (trial court did not abuse its discretion in permitting school employee, to whom ten year old prosecuting witness had first reported assault by her stepfather, to sit near the witness during her testimony where record failed to disclose that witness had been influenced or coached in any way). More recently, the Supreme Court of Indiana determined that a defendant, who had been on trial for sexually abusing his two stepdaughters, had not been unduly prejudiced by the trial court’s allowing one of the child victims to hold her mother’s hand while giving testimony. Baxter v. State, 522 N.E.2d 362 (Ind.1988). In reaching this conclusion, the Court said that “[tjhe trial court had discretion to allow special measures aimed at putting the young child at ease on the witness stand.” Id. at 365 (citation omitted). See also: Soap v. State, 562 P.2d 889 (Okla.Crim.1977) (trial court did not err in permitting seven year old sodomy victim to hold mother’s hand while giving testimony).

In the instant case, it does not appear that the child’s testimony was in any way influenced by her grandmother. The trial court observed:

The child at all times was visible to the Court, the jury and the defendant, and at no time did the grandmother speak to the child. Additionally, it is this Court’s recollection that at no time did the child speak to or turn and look at the grandmother, except during the following questioning by defense counsel regarding the child’s thoughts of her father:
Q: He must be a nasty person?
A: Yeah, he is.
Q: He is a nasty person?
A: Yeah.
Q: Grammy tells you that he’s a nasty person?
MRS. PLUMLEY: Objection.
A: Did you, Grammy? Well, he is. (Vol. I, N.T. 30)
No rights of the defendant were infringed upon and the child testified in a relatively relaxed and comfortable manner, given the circumstances and nature of the testimony.

(Trial Court Opinion at pp. 8-9). Given the trial court’s broad discretion, the tender age of the child, and the nature of her testimony, we cannot say that it was an abuse of the trial court’s discretion to permit the child to sit in her grandmother’s lap while giving testimony.

THE JUDGMENT OF SENTENCE IS AFFIRMED.

      . 18 Pa.C.S. § 2701(a)(1).

      . 18 Pa.C.S. § 3126(1).

      . 18 Pa.C.S. § 6301(a).

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 4304.

      . Although we find no abuse of discretion under the circumstances of this case, we do not thereby place this Court’s imprimatur on a general practice which permits children to testify while sitting in the lap of an adult. Such a practice is fraught with danger and is not to be encouraged. In the instant case, however, the record fails to disclose that appellant was prejudiced or that the witness’ testimony was influenced by the presence of the grandmother.


source: Caselaw Access Project

author: POPOVICH, Judge: KELLY, Judge,

license: Public Domain

text:
    554 A.2d 980
    COMMONWEALTH of Pennsylvania, Appellee, v. Henry M. GREER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 21, 1988.
    Filed Feb. 24, 1989.

      Clyde W. Vedder, York, for appellant.
    Mark A. Bellavia, Assistant District Attorney, York, for Com., appellee.
    Before KELLY, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered on March 31, 1988, by the York County Court of Common Pleas, following the appellant’s conviction on the charges of rape and robbery on March 21, 1980. The appellant contends we should vacate his sentence due to the inexcusable delay of over seven and one-half years between the denial of his post-verdict motions and sentencing. In the alternative, the appellant contends that we should compel the lower court to enter the same sentence as that originally imposed. We disagree and affirm the judgment of sentence.

The record reveals the following procedural history: On March 21, 1980, after a trial by jury, the appellant was convicted of rape and robbery, at 1009 Criminal Action 1979. Timely post-trial motions were filed and argued on July 8, 1980. His motions were denied, and sentencing was set for August 8, 1980. On August 8, Judge Joseph E. Erb sentenced the appellant to a term of imprisonment of ten to twenty years on the rape charge and a consecutive term of five to ten years on the robbery charge.

On August 20, 1980, new counsel, Attorney Pell, was appointed to represent the appellant. On September 4, 1980. counsel, fearing he would be unable to prepare and file an appeal by September 8, 1980, Pell petitioned the court to vacate the appeJant’s sentence, reimpose the sentence at a later date and then entertain a motion for reconsideration of sentence and a Post Conviction Hearing Act petition at that time. Judge Erb granted the motion the following day, scheduling another sentencing hearing for October 17, 1980. At the sentencing hearing, actually held on October 16, counsel requested a postponement on the grounds that the transcription of the appellant’s trial and subsequent proceedings had not been completed. Judge Erb agreed to postpone the sentencing until the transcript was completed. It is apparent from the record that the transcript was completed and filed by April 29, 1981. However, inexplicably, a date for sentencing was never set, and no appeal was filed.

Meanwhile, the appellant was convicted of rape, burglary and aggravated assault in a factually similar but unrelated case, at 1060 Criminal Action 1979. Later in the day of October 16, 1980, Judge Emanuel A. Cassimatis sentenced the appellant to a term of incarceration of ten to twenty years on the rape conviction and a consecutive term of five to ten years on the burglary conviction; an aggravated assault conviction was merged into the rape conviction for sentencing purposes. From the record, it is clear that Judge Cassimatis intended his sentence to run consecutively to that previously imposed (and subsequently vacated apparently without Judge Cassimatis’ knowledge) by Judge Erb.

Subsequently, in April of 1982, counsel for the appellant, Attorney Pell, filed a PCHA petition alleging the ineffectiveness of trial counsel, Attorney Oare. Simultaneously, the appellant filed a pro se PCHA petition alleging the ineffectiveness of current counsel, Attorney Pell. Consequently, new counsel, Attorney Kelly, was appointed, and the PCHA hearing was postponed in order to allow new counsel to file an amended petition. On May 25, 1983, a PCHA hearing was held, briefs in support and in opposition to the petition were filed, and, finally, on March 20, 1985, the appellant’s petition for post-trial relief was denied. On April 19, 1983, notice of appeal from the denial of PCHA relief was filed. However, on July 30, 1985, the appeal was quashed due to the appellant’s failure to file a brief.

Following the appellant’s petition for appointment of new counsel, present counsel, Attorney Vedder, was appointed on January 29, 1987. Thereafter, counsel filed another PCHA petition requesting the appellant’s appellate rights concerning his PCHA appeal be restored. A hearing date was set for May 27, 1987. However, the record is silent as to any further information concerning that PCHA petition. In any event, on November 9, 1987, the court, following a discussion with the Commonwealth and defense counsel, ordered the appellant to appear for sentencing on January 25, 1988. After several delays, sentencing took place on March 31, 1988 before (now) President Judge Erb.

At this sentencing hearing, counsel moved that the convictions against the appellant, at 1009 C.A.1979, be dismissed or, in the alternative, that the instant sentences be made to run concurrently with the sentences imposed by Judge Cassimatis, at 1060 C.A.1979. Judge Erb noted that, at the time Judge Cassimatis sentenced the appellant, Judge Cassimatis believed he was sentencing the appellant consecutively to the sentences which Judge Erb had imposed (and subsequently vacated). Judge Erb, realizing Judge Cassimatis’s sentences could not run consecutively to the sentences he would soon impose, questioned whether his sentences should run consecutively to those imposed some seven and one-half years earlier by Judge Cassimatis?

After reviewing the appellant’s case, Judge Erb decided that he would impose the same sentences which he had previously vacated and that the sentences would begin to run at the expiration of those imposed by Judge Cassimatis. Judge Erb noted that “[w]e do not see how delay in the sentencing of this Court [was detrimental to the Defendant] since the sentencing was prompt but removed at the request of counsel and since the Defendant has been incarcerated since the case was tried in court on other matters and since the Defendant is protected with regard to any appeal with which he wishes to take ...” (Sentencing Transcript, March 31, 1988, p. 8-9).

While not expressly framing his argument in terms of violations of his constitutional rights, the appellant, in effect, claims: 1) he was denied his right to a speedy trial, as provided under the Sixth Amendment and made applicable to the states through Fourteenth Amendment, Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); and 2) he was denied protection under the Due Process Clause of the Fourteenth Amendment with regard to his appeal as of right, Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). See also Burkett v. Cunningham, 826 F.2d 1208 (3rd Cir.1987).

In Commonwealth v. Glover, 500 Pa. 524, 458 A.2d 935 (1983), our Supreme Court addressed the issue currently before us. Therein, the Court stated:

Neither this Court nor the United States Supreme Court has expressly held that the disposition of post-verdict motions or sentencing is a part of trial for Sixth Amendment purposes. However, we will assume arguendo that disposition of post-verdict motions and sentencing are a part of trial for the purposes of a defendant’s Sixth Amendment right to a speedy trial.

Glover, 500 Pa. at 529, 458 A.2d at 937.

This approach was first adopted by our Supreme Court in Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), and has been followed in subsequent Pennsylvania cases. See Commonwealth v. Atkinson, 364 Pa.Super. 384, 528 A.2d 210 (1987); Commonwealth v. Tillia, 359 Pa.Super. 302, 518 A.2d 1246 (1986); Commonwealth v. Button, 481 A.2d 342. Rather than merely continue to perpetuate the assumption that the Speedy Trial Clause applies to sentencing, we will treat the subject as established law. In so doing, we follow the lead of the federal judiciary which first made the assumption. See Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957) (lead case applying the assumption that the Speedy Trial clause applies to sentencing); Burkett v. Cunningham, 826 F.2d at 1220 (“We now make explicit what we have assumed in our previous cases, that the Speedy Trial clause of the Sixth Amendment applies from the time the accused is arrested or criminally charged ... up through the sentencing phase of prosecution ...”); Perez v. Sullivan, 793 F.2d 249, 253 (10th Cir.), cert. denied, 479 U.S. 936, 107 S.Ct. 413, 93 L.Ed.2d 364 (1986) (Since Pollard, all courts addressing this issue “have either treated the subject as established law or have perpetuated the Court’s assumption in Pollard.”).

Now that we have determined that the appellant’s right to a speedy trial is implicated presently, we begin our analysis.

In determining whether a defendant’s constitutional speedy trial right has been violated, it must first be determined whether the delay itself is sufficient to trigger further inquiry. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981). If the delay is sufficient to trigger further inquiry, the reviewing court must balance the length of the delay with the reason for the delay, the defendant’s timely assertion of his right to a speedy trial, and any resulting prejudice to the interests protected by the right to a speedy trial. Barker v. Wingo, supra; Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980).

Glover, 458 A.2d at 937; See also Atkinson, 528 A.2d at 217; Tillia, 518 A.2d at 1257; Button, 481 A.2d at 348; Burkett v. Cunningham, 826 F.2d at 1220-1221, applied at 1223-1225; United States v. Campisi, 583 F.2d 692, 694 (3rd Cir.1978).

Instantly, there was a seven and one-half year delay between the date of the appellant’s second sentencing hearing and his ultimate sentencing. That delay is most certainly sufficient to warrant further inquiry. The extreme length of the delay, which is the first factor in our analysis, weighs heavily in the appellant’s favor.

The second factor to be considered is the cause of the delay. The record offers possible explanations for the delay. First, the appellant’s numerous counsel continued to proceed erroneously under the Post Conviction Hearing Act, and the lower court continuously permitted such petitions.

Second, the similarities between the appellant’s present convictions and those at 1060 C.A.1979 have seemingly caused much confusion, as our lengthy explanation of the procedural history of the case would indicate. Since the appellant has been incarcerated throughout the entire delay on a substantially similar set of convictions, it appears that all concerned mistakenly believed that the appellant had actually been sentenced on the convictions now before us. Even the record does not reveal, nor does counsel propose, what events brought the delay to light in November of 1987.

As in Glover, supra, the record does not indicate that either the appellant or the Commonwealth deliberately attempted to cause the delay. However, as in Atkinson, supra, the record demonstrates that the seven and one-half year delay was caused by the negligence of the appellant’s counsels in their erroneous pursuit of PCHA claims prior to the appellant’s sentencing. Since the delay was attributable, at least in part, to the negligent stewardship of the appellant’s attorneys, the responsibility for the delay does not weigh heavily upon the Commonwealth. Glover, 458 A.2d at 937-938; Atkinson, 528 A.2d at 218; Barker v. Wingo, supra.

The next factor for our consideration is whether the appellant made a timely assertion of his right to a speedy trial. Instantly, the appellant made no attempt prior to the actual sentencing to allege an infraction of his speedy trial rights. Moreover, after his oral motion to dismiss the charge was denied at the sentencing proceeding, the appellant did not file a written motion to reconsider sentence which advanced the claim in detail. Clearly, the appellant did not make a timely assertion of his speedy trial rights. See e.g., Atkinson, 528 A.2d at 218 (motion filed by defendant at sentencing five and one-half years after his conviction was not timely assertion); Tillia, 518 A.2d at 1258 (motion filed five months after scheduled but postponed post-trial motion hearing was not timely assertion); Glover, 458 A.2d at 938 (motion filed thirty-nine months after original sentence vacated and post-verdict motions reinstated was not timely assertion).

The final factor for consideration is whether the delay resulted in any prejudice to the interests protected by the right to a speedy trial. In Glover, supra, our Supreme Court stated:

The particular interests that the Sixth Amendment was designed to protect are the following: to prevent oppressive pre-trial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense will be impaired. U.S. v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).

Glover, 458 A.2d at 938; Atkinson, 528 A.2d at 218; Pounds, 417 A.2d at 601 n. 10.

Instantly, the appellant cannot claim prejudice resulting from oppressive pre-trial incarceration or impairment of his defense since the delay occurred after the appellant’s trial and conviction. His only possible claim is that he suffered anxiety because he faced a potential prison term. However, any claims of dolorous effect are without merit in light of the fact that the appellant waited seven and one-half years to assert his right. See Glover, 458 A.2d at 938.

Moreover, the appellant is currently serving his eighth year of a fifteen to thirty year sentence for the unrelated rape and burglary charged at 1060 C.A.1979. Thus, the appellant did not forego any opportunities in anticipation of future sentencing. In fact, it is quite clear in the record that the appellant knew that Judge Erb and Judge Cassimatis intended the sentences at 1009 C.A.1979 and 1060 C.A. 1979 to run consecutively. We also note that the delay in sentencing did not exceed the collective minimum sentence to which he was sentenced in the cause sub judice. See Atkinson, 528 A.2d at 218; Pounds, 417 A.2d at 600-601; Button, 481 A.2d at 348; Commonwealth v. Giovengo, 188 Pa.Super. 220, 146 A.2d 629 (1958), cert. denied 361 U.S. 843, 80 S.Ct. 94, 4 L.Ed.2d 81 (1959) (sentence may be suspended or deferred for a period of time equal to the maximum term of the possible sentence provided proper reasons are presented to justify the delay).

After balancing the preceding four factors, we conclude that the appellant was not denied his right to a speedy trial as guaranteed by the Sixth Amendment. While we do not condone this delay in post-trial proceedings, we are not convinced that it mandates a dismissal of the charges with prejudice. Our decision is based on the fact that the delay was directly related to the appellant’s and his counsel’s actions and inaction. His counsel insisted on pursuing PCHA relief without recognizing that the appellant had yet to be sentenced. It was at appellant’s own request that his original sentence was vacated, and, after the postponement of resentencing, the appellant never once during the ensuing seven and one-half years demanded his speedy trial right to sentencing. Finally, the appellant is unable to demonstrate any prejudice as a result of the delay.

Having determined that the appellant’s speedy trial rights were not violated, we turn to the due process issue. The Supreme Court of the United States has held that the Due Process clause protects the right to direct appeal when that right is guaranteed by the state. See e.g, Evitts, 469 U.S. at 393, 105 S.Ct. at 834, 83 L.Ed.2d at 827. In Pennsylvania, sentencing acts as the gatekeeper to the criminal appellate process. Thus, a delay in sentencing correspondingly delays an appeal. Since the convicted criminal has an appeal as of right to the Superior Court, the appeal to this court is, in effect, the final step in the adjudication of an individual’s criminal status. Evitts, 469 U.S. at 404, 105 S.Ct. at 840, citing Griffin, 351 U.S. at 18, 76 S.Ct. at 590.

The Due Process clause thus protects not only against delays in trial, including sentencing; it also guarantees a reasonable speedy appeal if the state has chosen to give defendants the right to “attempt[] to demonstrate that the conviction, and the consequent drastic loss of liberty, is unlawful.” Evitts, 469 U.S. at 396, 105 S.Ct. at 836. Where post-verdict delays not only impede sentencing but also the appeal as of right, the clause is doubly implicated. “Due process can be denied by any substantial retardation of the appellate process.” Rheuark [v. Shaw], 628 F.2d [297] at 302 [(5th Cir.1980)] (citing cases); see also DeLancy [v. Caldwell], 741 F.2d [1246] at 1247 [ (10th Cir.1984) ] (same).

Burkett v. Cunningham, 826 F.2d at 1221.

While due process can be denied by a sentencing delay which simultaneously delays the appellate process, not every delay in the appeal of a case, even an inordinate one, violates due process. Burkett, 826 F.2d at 1221; Rheuark, 628 F.2d at 303. Not only must the appellant prove his cause was prejudiced by the delay, but he must also prove that the state’s action in causing or allowing the delay was “fundamentally unfair,” not merely undesirable, in order to establish a due process violation. United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048-29, 52 L.Ed.2d 752, 759 (1977); Burkett, 826 F.2d at 1221; see, e.g. Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431, 437 (1974).

Since both the Due Process and Speedy Trial clauses constrain post-verdict delay, the federal judiciary has applied the four Barker v. Wingo factors as a means of determining whether due process has been violated. See Burkett, 826 F.2d at 1222, applied at 1225; DeLancy, 741 F.2d at 1247-1248; Rheuark, 628 F.2d at 302-304. The only significant difference between the test used in the speedy trial analysis and one employed in the due process analysis relates to the prejudice prong of the Barker v. Wingo test. Both the Third and Tenth Circuit, in their adaptations of the prejudice prong, recognized three interests in promoting a prompt appeal:

(1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired.

Burkett, 826 F.2d at 1222, quoting Rheuark, 628 F.2d at 303 n. 8.

Applying the test instantly, first, we recognize that the appellant has been incarcerated for seven and one-half years without having his appellate rights exercised. However, that period of imprisonment is unrelated to the instant charges; rather, the appellant has been properly incarcerated based on the sentences from the appellant’s unrelated rape and burglary convictions.

Second, to say that the appellant has suffered anxiety and concern while awaiting the outcome of an appeal, is absurd. The appellant, after the postponement of his resentencing in October of 1979, never demanded that sentencing occur, and, not until sentencing in March of 1988, was a motion to dismiss lodged. The appellant, misadvised by counsel, continued to proceed under the Post Conviction Hearing Act. Even under the PCHA, the appellant did not diligently pursue his appeal of the denial of his petition filed in April of 1982, and the appeal was dismissed for failure to file a brief. In addition, the appellant still has at least seven years of his other sentence to serve. Thus, a protracted appeals period on the instant charges would be of little consequence to the appellant’s future plans.

Third, and most important, the appellant’s grounds for appeal and defenses in case of a reversal and retrial are not impaired. The record is complete and the transcripts are ripe for review. Fair and just review of the appellant’s case is not hampered by the delay. While we cannot say with certainty that his defenses in the event of a reversal and retrial have not been impaired, the appellant has not offered any reasons for possible impairment. Moreover, even if he made such an assertion, the results of the delay, in our opinion, have not arisen to the level of “fundamental unfairness,” and, therefor, discharge is not warranted.

Applying the modified Barker v. Wingo test, we find that the appellant’s due process rights have not been violated, despite the fact that seven and one-half years have passed since his convictions. While we reiterate our displeasure with such an inordinate delay, we are certain that appellant’s due process rights were not sufficiently violated to warrant dismissal of the charges against him. If the appellant were to appeal his conviction, his appeal most certainly would be completed prior to expiration of his sentence on 1060 C.A.1979. If, on appeal, the appellant is able to raise substantive issues which ultimately result in a new trial, that court would be better able to determine to what extent, if any, the appellant’s defense has been damaged by the passage of time.

Now that we have determined that the appellant has not been deprived his right to a speedy trial and due process of law under the Constitution, we must determine whether the lower court abused its discretion by imposing an allegedly harsher sentence after the appellant’s original sentence was vacated. The appellant asserts that the trial court, in ordering the appellant’s sentences served consecutively to those imposed at 1060 C.A.1979, effectively imposed a harsher sentence than was imposed and vacated years ago.

However, it is abundantly clear from the record that the trial court, in effect, did not impose a harsher sentence. At the time of the original sentencing, it was the intention of the sentencing judges to have the sentences at 1009 C.A.1979 and 1060 C.A.1979 run consecutively. Instantly, Judge Erb’s decision to have the present sentences run consecutively to those imposed by Judge Cassimatis merely gives effect to the original sentencing scheme. Simply put, the appellant will first serve the sentences imposed by Judge Cassimatis at 1060 C.A.1979 and then will serve the sentences imposed by Judge Erb, rather than visa versa as originally intended.

Moreover, assuming arguendo that the appellant has received a harsher sentence, the sentencing court did not err by imposing its sentence to run consecutively to all other sentences currently being served. Instantly, the appellant requested that the sentencing court vacate his sentence and reimpose it at a later date in order to allow him the opportunity to file a de novo motion for reconsideration of sentence.

Instantly, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) is dispositive. In Pearce, supra, the United States Supreme Court stated:

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge, (footnote omitted)
In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

Pearce, 395 U.S. at 725-726, 89 S.Ct. at 2080-2081, 23 L.Ed.2d at 669-670.

At sentencing, Judge Erb noted that Judge Cassimatis intended the rape and bcrglary sentences at 1060 C.A.1979 to run consecutively to each other and consecutively to the original sentence imposed by Judge Erb. In addition, Judge Erb made reference to the appellant’s extensive criminal record and noted that “there is no anticipated — as far as the court is concerned — rehabilitation of this Defendant.” Instantly, we find that the sentencing court was not motivated by “vindictiveness” when imposing appellant’s sentence, but rather the court was motivated by the desire to effect the sentencing arrangement which Judge Erb and Judge Cassimatis originally intended to impose. The court’s reasons for imposing a sentence to run consecutively to those currently being served are clear, and we are persuaded that such a sentence is legal and appropriate. See Broadie, 489 A.2d at 221-222.

Finally, this appeal could also be considered a challenge of the discretionary aspects of his sentence. Assuming that the appellant’s brief complies with Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) and Pa.R.A.P. 2119(f), we find no abuse of discretion on the part of the trial court.

“Imposition of a proper sentence is vested in the sound discretion of the trial court, whose exercise thereof will not be disturbed unless the sentence imposed exceeds statutory limits or is manifestly excessive.” Commonwealth v. Bailey, 368 Pa.Super. 618, 623-624, 534 A.2d 829 (1987), allocatur denied 542 A.2d 1364. Clearly, a sentencing court may impose consecutive sentences for separate crimes, Commonwealth v. Pristas, 222 Pa.Super. 254, 295 A.2d 114 (1972), and may impose a sentence to commence at the expiration of any other sentences which the defendant is currently serving, Pa.R.Crim.P. Rule 1406(c). Having reviewed the record, we find that the appellant’s sentence is within the statutory linc'ts, that the sentence is not manifestly excessive and that the court clearly stated adequate reasons for the sentence on the record. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).

In sum, we find that the appellant’s speedy trial rights and due process rights guaranteed by the United States Constitution were not violated by the delay between the vacation of his prior sentence and his resentencing. Further, we find that the trial court did not impose a harsher sentence and that, assuming arguendo a harsher sentence was imposed, such a sentence was warranted due to the changed circumstances. Finally, we find that the trial court did not abuse its discretion when sentencing the appellant. Accordingly, judgment of sentence affirmed.

Judgment Affirmed.

KELLY, J., files a Concurring Statement.

KELLY, Judge,

concurring:

I join in Judge Popovich’s well-reasoned opinion. Appellant has attempted to paint himself as a victim of court delay, racked by the uncertainty arising from the failure of the court to impose sentence until seven and one half years after post-verdict motions were denied. His silence during that delay, however, proves the illusory nature of the tragic image he paints. Appellant had but to assert his speedy trial right and sentence would undoubtedly have been imposed.

Here, either appellant (like the court and counsel) was ignorant of the fact that sentence had not been imposed and therefore suffered no anxiety, or he knew sentence had not been imposed but elected to stay silent, thus deciding not to borrow trouble from the future. In either case, he made no assertion of his speedy trial right and established no actual prejudice arising from the lengthy but understandable delay in imposing sentence. Hence, his speedy trial claim must fail. See Commonwealth v. Glover, 500 Pa. 524, 458 A.2d 935 (1983).

Likewise, I agree that there is not the slightest appearance of vindictiveness arising from the imposition of the sentence consecutive to the one appellant was already serving. Cf. Commonwealth v. Rocco, 375 Pa.Super. 330, 544 A.2d 496 (1988) (discussing vindictiveness in sentencing generally).

Hence, I join the majority opinion.

      . While we will not ordinarily correctly frame the issues for appellate review, we will in the instant case since the appellant in challenging the legality of his sentence, an issue which cannot be waived. See Commonwealth v. Button, 332 Pa.Super. 239, 481 A.2d 342, 348 (1984); Commonwealth v. Britton, 334 Pa.Super. 203, 482 A.2d 1294 (1984), appeal dismissed 509 Pa. 620, 506 A.2d 895 (1986).

      . In the following cases, the respective delays were of sufficient length to trigger further inquiry: Pounds, supra, approximately two years; Glover, supra, forty-nine months; Tillia, supra, nineteen months; Atkinson, supra, five and one-half years.

      . Obviously, the appellant was not eligible for relief under the PCHA. Under 42 Pa.C.S.A. § 9543, a person is eligible for post-conviction relief only if: 1) "he has been convicted of a crime"; and 2) "he is incarcerated in this Commonwealth under a sentence of death or imprisonment or on parole or probation.”
      While it is true that the appellant was incarcerated when the petitions were filed, he was not incarcerated on the conviction which was the basis of his petitions. Clearly, the Legislature intended the petitioner to be incarcerated on the conviction under attack when a PCHA action is initiated.

      . We note that no one factor is dispositive when applying the Barker v. Wingo test. The factors are guidelines, not rigid tests, and no single factor is necessary nor of sufficient importance to prove a violation of speedy trial rights. Perez v. Sullivan, 793 F.2d at 254; Burkett v. Cunningham, 826 F.2d at 1220.

      . We note that, in Pounds, 417 A.2d at 601, our Supreme Court refused to address the issue of "prejudice by virtue of the resulting delay in consideration of his appeal," asserting that "is not the type of interest which the right to a speedy trial protects.” However, since the Pounds decision, the Supreme Court of the United States in Evitts, supra, has made it quite clear that due process can be violated by a prolonged post-verdict delay that correspondingly delays an appeal as of right.

      . In the case of a Pa.R.Crim.P. Rule 1410 motion to modify sentence by the defendant, the sentencing court cannot increase the sentence since it cannot raise the issue of sentence enhancement sua sponte. Commonwealth v. Broadie, 339 Pa.Super. 394, 402 n. 5, 489 A.2d 218, 222 n. 5 (1985); Commonwealth v. Murphy, 305 Pa.Super. 246, 451 A.2d 514 (1982). However, this is not the case presently since the sentence was not enhanced because of the request to modify the sentence. Rather, the sentence was enhanced at a de novo sentencing hearing occasioned upon the appellant's request to have his sentence vacated.

      . Procedurally, Pearce, supra, and the present action are different. In Pearce, supra, the harsher sentence was imposed following the defendant’s successful exercise of his appellate rights. Instantly, the harsher sentence was imposed following the defendant’s request to have his sentence vacated and then reimposed in order to allow him to file a de novo motion to reconsider sentence. However, their procedural differences do not vitiate the applicability of Pearce, supra, since the interest which Pearce, supra, seeks to protect, preventing the fear of vindictiveness on the part of the sentencing court which may deter a defendant from exercising his right to appeal or collaterally attack his conviction, is implicated presently.

      . In Broadie, supra, we held that the double jeopardy clause of United States Constitution does not prohibit a sentencing court from modifying the sentence of a petitioner so as to increase his punishment. Broadie, 489 A.2d at 220-221; see also Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011 (1982); United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980).


author: JOHNSON, Judge:

text:
    554 A.2d 989
    VINTAGE HOMES, INC., Appellant v. Gloria B. LEVIN and Daniel Promislo and Alan Weinstein, Executors of the Estate of Leonard Gordon, and as Co-Partners, T/A Trout Lake Associates. VINTAGE HOMES, INC. v. Gloria B. LEVIN and Daniel Promislo and Alan Weinstein, Executors of the Estate of Leonard Gordon, and as Co-Partners, T/A Trout Lake Associates. Appeal of Gloria B. LEVIN. VINTAGE HOMES, INC. v. Gloria B. LEVIN and Daniel Promislo and Alan Weinstein, Executors of the Estate of Leonard Gordon, and as Co-Partners, T/A Trout Lake Associates. Appeal of Daniel PROMISLO and Alan Weinstein, Executors of the Estate of Leonard Gordon, and as Co-Partners T/A Trout Lake Associates.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1988.
    Decided Feb. 22, 1989.

      John B. Dunn, Stroudsburg, for appellant (at 1666) and for Vintage, appellee (at 1682 and 2366).
    Joan R. Sheak, Allentown, for appellant (at 1682) and for Levin, appellee (at 1666 and 2366).
    Martha Johnston, Philadelphia, for appellant (at 2366) and for Promislo, appellees (at 1666 and 1682).
    Before BECK, JOHNSON and MELINSON, JJ.
   JOHNSON, Judge:

Appellant Vintage Homes, Inc., (Vintage) and appellees Gloria B. Levin, Daniel Promislo and Alan Weinstein trading as a partnership, Trout Lake Associates (Trout Lake), cross-appeal from the order that grants Trout Lake’s motion for summary judgment and that sustains Vintage’s demurrer to Trout Lake’s counterclaim. We affirm the grant of summary judgment but reverse the sustainment of the demurrer.

Vintage and Trout Lake entered into negotiations for the sale of a parcel of land in Jackson Township, Monroe County, Pennsylvania owned by Trout Lake. An agreement of sale was prepared, which was signed by Vintage and by a Coldwell-Banker agent, Phyllis Rubin, but it was not signed by any of the sellers. Phyllis Rubin was never authorized to sign an agreement on the sellers’ behalf.

Vintage began this action on September 10,1987 by filing a Writ of Summons against Trout Lake and a lis pendens against the property in question. Trout Lake petitioned the court to strike the lis pendens on September 29, 1987, which, after hearing, the court did on November 30, 1987. In the meantime, on October 30, 1987, Vintage filed a complaint demanding specific performance of the alleged agreement of sale between themselves and Trout Lake, attached to which was the alleged agreement. The Trout Lake partners responded to the complaint individually. Promislo and Weinstein filed an Answer, New Matter and Counterclaim on November 24, 1987 and Levin filed a similar pleading on December 4, 1987. Both pleadings alleged as new matter the non-existence of an agreement of sale and the lack of authorization to any individual to act as agent for the Trout Lake partners in a transaction for the sale of the property. The Trout Lake partners also counterclaimed, alleging that the lis pendens listing caused them to lose a sale of the property to a third party.

Vintage failed to reply, and on January 5, 1988 Levin entered Rule 237.1 notice of her intention to take a default judgment. On January 14, 1988 Vintage filed preliminary objections to the counterclaims, alleging that they stated no cause of action. Vintage, however, took no action on their preliminary objections, and therefore Levin filed a motion for summary judgment on February 12, 1988. Following Vintage’s petition to defer consideration of the motion for summary judgment and Levin’s answer to this petition, both the preliminary objections and the motion for summary judgment were argued.

On April 20,1988 The Honorable Peter J. O’Brien granted Levin’s motion for summary judgment. The trial court stated that there was no writing signed by the sellers and thus the Statute of Frauds barred enforcement of the contract for sale. The court also sustained Vintage’s preliminary objections to the counterclaim by Trout Lake that it incurred damage because the listing of the property as lis pendens dissuaded a third party from purchasing the property. The court relied on the fact that the lis pendens had been stricken on November 80, 1987 and thus no damage could have been incurred. Both parties have cross-appealed.

Vintage presents the following issues for our review:

I. Can a motion for summary judgment be considered and granted before pleadings are closed, i.e., before plaintiff has had an opportunity to reply to a defense raised in new matter?
II. May a defendant be equitably estopped from asserting the Statute of Frauds as a defense?
III. If consideration of a summary judgment motion is not premature, do the pleadings and other papers filed in the court below support the conclusion that there is no genuine issue of material fact with respect to the plaintiff’s claim for specific performance of a contract to convey real estate and with respect to defendants’ counterclaims for disparagement of title and tortious interference with business relationship?

First, Vintage asserts that the court should not have decided the motion for summary judgment before it had disposed of the preliminary objections and before Vintage replied to the new matter. Vintage acquiesced in the trial court’s consideration of these issues on the merits, even though it had neither replied to the new matter on the summary judgment issue, nor briefed nor set argument on the preliminary objections. Vintage then argued the merits of both the summary judgment issues and the preliminary objection issues. By not objecting to the court’s course of action and by presenting the merits of the issues to the court, Vintage has waived any objection to the non-filing of prerequisite pleadings. This comports with previous holdings by this Court that a court may proceed to the merits of a case once preliminary issues are resolved, notwithstanding that all responsive pleadings regarding these issues were not filed before the court did so. See Reddick v. Puntureri, 242 Pa.Super. 138, 363 A.2d 1198 (1976).

The procedural history of the case underscores why waiver is in order. Vintage presents no argument demonstrating that it was prevented from filing a reply during the four months between the filing of Levin’s answer, new matter and counterclaim on December 4, 1987 and the hearing of April 4, 1988. The record demonstrates that Vintage received timely notice of all pleadings filed. The only action taken by Vintage during this entire four-month period was its March 8, 1988 filing of a petition to defer consideration of the motion for summary judgment. At no time did Vintage ask the court for leave to file briefs nor did Vintage in any other manner address the preliminary objections. After Levin’s answer to Vintage’s petition to defer consideration, Vintage filed nothing.

The trial court’s ordering the issues for argument on the merits was an entirely proper response to the inexcusable delay on Vintage’s part. Vintage was not precluded from presenting its case. Vintage has cited no authority, nor do we find any, that proscribes the court’s consideration of both the preliminary objections and the motion for summary judgment at the same hearing. Further, we recognize that, had this issue not been waived, we would hold that Vintage’s failure to reply to Levin’s new matter within twenty days in effect closed the summary judgment pleadings. Pa.R.C.P. 1029(b); Newspaper Guild of Greater Philadelphia v. Philadelphia Daily News, Inc., 401 Pa. 337, 164 A.2d 215 (1960).

Next we consider whether the pleadings established that there was no genuine issue of material fact supporting Vintage’s demand for specific performance of the alleged contract for sale. We agree with the trial court that because the agreement of sale was not signed by the sellers and because no evidence existed demonstrating that the Coldwell-Banker agent was authorized to act for the sellers, no written instrument existed memorializing the contract. Thus, enforcement of the agreement for sale of the real estate is precluded by the Statute of Frauds. The Opinion of April 20, 1988 by the Honorable Peter J. O’Brien competently analyzes this issue and correctly resolves it. We therefore adopt the opinion of the trial court as our own on this issue.

Vintage argues that, even if it were found that the Statute of Frauds renders the purported agreement of sale unenforceable, the Trout Lake partners must be equitably estopped from asserting the Statute of Frauds defense. The argument section of the brief sets forth two grounds for estoppel. The first is actually a claim that the Trout Lake partners waived a Statute of Frauds defense because it was not pleaded in new matter pursuant to Pa.R.C.P. § 1030. To the contrary, partner Levin’s new matter alleges that the agreement of sale attached to the complaint was signed by a Coldwell-Banker agent and by Vintage but not by any Trout Lake partner or any authorized agent of the partners. Further, the new matter stated that at all relevant times Vintage knew it had no written agreement to purchase Trout Lake from defendants. The Trout Lake partners did not waive the Statute of Frauds defense.

Vintage further maintains that Trout Lake should be equitably estopped from asserting the statute of frauds defense because Vintage detrimentally relied upon the agreement of sale. This argument is entirely without merit. The courts of this Commonwealth have carved out an exception to the application of the Statute of Frauds to be applied only to situations in which continuous and exclusive possession of the property was taken under the oral contract and improvements were made by the buyer which are not readily compensable in money. See Hostetter v. Hoover, 378 Pa.Super. 1, 547 A.2d 1247 (1988). In Hostetter, this Court held that the evidence of possession and substantial improvements to a home was sufficient to take the contract out of the Statute of Frauds and that a refusal to enforce the contract would be inequitable and unjust.

This judicially created exception to the necessity of a writing memorializing the agreement for sale of real estate is not intended to apply to the situation in the present case. Vintage never took possession of the property or acted in any way that demonstrated that they believed title to be theirs; Vintage never made improvements to the property. They allege no expenses incurred in reliance on the seller’s representations, nor do they allege that the sellers made misrepresentations to them. As the trial court wrote, Vintage’s claim is merely an effort to recoup expenses from a period of negotiation that almost, but not quite, resulted in a contract. Opinion, 4/30/88 at 4. This situation clearly does not warrant application of the equitable remedy of estopping the seller from asserting the Statute of Frauds.

Finally, on cross appeal, Trout Lake argues that it was error for the trial court to sustain Vintage’s preliminary objections to their counterclaim. We agree.

A preliminary objection in the nature of a demurrer is an assertion that a pleading fails to set forth a cause of action upon which relief can be granted. Balsbaugh v. Rowland, 447 Pa. 423, 290 A.2d 85 (1972). The preliminary objection should be overruled if the allegations of the complaint state a cause of action under any theory of law. Packler v. State Employes’ Retirement Board, 470 Pa. 368, 368 A.2d 673 (1977). When reviewing the lower court’s sustaining of a preliminary objection in the nature of a demurrer, all facts set forth in the challenged complaint must be accepted as true as well as all inferences reasonably deducible from these facts. Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983). A case should be dismissed on preliminary objections only where the dismissal is clearly warranted and free from doubt. Interstate Traveller Services, Inc. v. Commonwealth Department of Environmental Resources, 486 Pa. 536, 406 A.2d 1020 (1979).

Levin’s counterclaim alleged that on September 10, 1987, Vintage Homes, knowing that it did not have an agreement with the Trout Lake partners, nevertheless had the property in question listed as lis pendens, that the Trout Lake partners were prepared to enter into an agreement to sell the property to a third party and that the closing was scheduled for September 14, but that because of the lis pendens, the closing did not occur. Levin alleged that, as a result of the failure of the deal, the Trout Lake partners incurred loss of profit on the sale of the property, loss of interest on the sale proceeds, and continuing expenses, including operation costs, maintenance and legal expenses. Generally, a lis pendens is the jurisdiction, power or control which a court acquires over property involved in a suit until a final judgment is rendered with respect to the property. United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985). While listing property as lis pendens does not create an actual lien, it serves to give notice to third parties that the property is subject to litigation and that any interest acquired by the third party will be subject to the result of the litigation. Psaki v. Ferrari, 377 Pa.Super. 1, 546 A.2d 1127 (1988).

Interference with a prospective business relation is a tort long recognized by the courts of this Commonwealth. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979). Although Levin’s counterclaim does not thus title the tort, the allegations comprise the substance of this tort. Causing the property to be listed as lis pendens could very well have discouraged a prospective buyer from completing a deal to purchase the property. The following four elements must appear in the complaint pleading interference with a prospective business relation:

(1) a prospective contractual relation;
(2) the purpose or intent to harm the plaintiff by preventing the relation from occurring;
(3) the absence of privilege or justification on the part of the defendant; and
(4) the occasioning of actual damage resulting from the defendant’s conduct.

Thompson, 488 Pa. at 208, 412 A.2d at 471. Levin’s counterclaim alleges all of these elements. However, in its opinion the trial court stated that because the lis pendens was struck on November 30, the Trout Lake partners could not complain of any harm it caused them. This finding is in error. The damage alleged occurred well before the November 30 striking of the lis pendens. In addition, the trial court’s opinion states that Vintage had a privilege or justification for causing the property to be listed as lis pendens, that Vintage justifiably believed that they had a claim to the title of the property. This finding flatly contradicts the trial court’s principal finding, that no agreement of sale existed because the alleged agreement was not signed by the seller. In fact, the trial court makes this very point, that Vintage had no arguable right to the property, in its well-reasoned opinion of November 30, 1987 accompanying the order striking the lis pendens. Therefore, the trial court erred in finding that Levin’s counterclaim stated no cause of action.

Accordingly, we reverse the trial court’s sustainment of Vintage’s preliminary objections and thus enable the action to proceed on the Trout Lake partners’ counterclaim for damages due to tortious interference with a prospective business relation. We affirm the trial court’s order granting summary judgment to Trout Lake.

Order reversed in part, affirmed in part. Case remanded. Jurisdiction relinquished.


author: WIEAND, Judge:

text:
    555 A.2d 119
    COMMONWEALTH of Pennsylvania v. Catherine Spear FRIED, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1988.
    Filed Jan. 17, 1989.
    Reargument Denied March 14, 1989.
    Petition for Allowance of Appeal Denied Aug. 14, 1989.

      Norris E. Gelman, Philadelphia, for appellant.
    Marianne E. Cox, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WIEAND, McEWEN and MELINSON, JJ.
   WIEAND, Judge:

Dr. Paul Fried, who had a history of drug and alcohol abuse, died on July 23, 1976, in his home in Philadelphia. The Assistant Medical Examiner for the City of Philadelphia executed a death certificate reciting that Dr. Fried had died as a result of suicide by ingestion of unknown substances. An autopsy performed at the request of the family by Dr. Milton Helpern, M.D., a former Medical Examiner for the City of New York, produced a report that Dr. Fried’s death had not been a suicide but the result of natural causes. After Dr. Helpern died, additional opinions were obtained, and on the basis of these opinions, Catherine Spear Fried, the widow of Dr. Fried, was arrested and charged with murder. A trial by jury resulted in a finding that she was guilty of murder of the first degree. The trial court, however, awarded a new trial, and a panel of the Superior Court affirmed. Commonwealth v. Fried, 327 Pa.Super. 234, 475 A.2d 773 (1984).

At the second trial, the cause of death was once again disputed vigorously. The Commonwealth contended that Dr. Fried’s death had been caused by suffocation at the hands of his wife, while the defendant-wife contended that Dr. Fried had died of natural causes. The Commonwealth also produced testimony by Gerald Sklar and Michael Selkow, both of whom were convicted felons, that the defendant had attempted to hire them to kill Dr. Fried; and Sklar testified that the defendant had subsequently admitted to him that she had done it herself by holding a pillow over her husband’s face. A jury again found Mrs. Fried guilty of murder of the first degree. This time, however, the trial court denied post-trial motions and sentenced her to life imprisonment. This appeal followed.

Appellant’s principal argument is that the trial court erroneously instructed the jury that it could consider the alleged admission made by appellant if convinced beyond a reasonable doubt that Dr. Fried probably had been killed by felonious means and if “the circumstances [were] more consistent with death having been caused by a felonious killing by suffocation than in some other way.” We agree that these instructions were erroneous; and, therefore, we reverse and remand for a new trial.

The decided cases distinguish between the Commonwealth’s initial burden of showing that a death was more consistent with a criminal act than other causes in order to render admissible a confession and the Commonwealth’s ultimate burden of proving beyond a reasonable doubt that the death was caused by a criminal act before the jury may consider a confession for the purpose of identifying the killer. This distinction was explained in Commonwealth v. Drexel, 349 Pa.Super. 335, 503 A.2d 27 (1986), appeal denied, 514 Pa. 616, 521 A.2d 931 (1987), as follows: at 556, 417 A.2d at 179 (to introduce incriminating out-of-court statement, Commonwealth need not prove existence of crime beyond a reasonable doubt); Commonwealth v. Turza, 340 Pa. 128, 135, 16 A.2d 401, 405 (1940) (evidence sufficient “where the circumstances attending the death are consistent with crime, though they may also be consistent with accident ... or suicide”). The purpose of the rule is to prevent the use of hasty and unguarded confessions to convict an individual when no crime was committed. Commonwealth v. Ware, [459 Pa. 334, 365, 329 A.2d 258, 274 (1974)]. In essence, then, to introduce a defendant’s confession or admission, the Commonwealth need only show that it was more probable than not that the victim died from unnatural causes.

Pennsylvania has developed a corpus delicti rule of evidence that states that before the Commonwealth may introduce a defendant’s confession or admission, it must offer independent evidence that a crime in fact occurred. Commonwealth v. Moore, 466 Pa. 510, 513, 353 A.2d 808, 809 (1976); Commonwealth v. Smallwood, 497 Pa. 476, 483, 442 A.2d 222, 225 (1982); Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980); Commonwealth v. Palmer, 448 Pa. 282, 285-86, 292 A.2d 921, 922 (1972). Such independent evidence need not conclusively prove that a crime was committed; rather, the rule is satisfied if the evidence “points to an unlawful killing, although it may indicate as well accident or suicide.” Commonwealth v. Coontz, 288 Pa. 74, 79, 135 A. 538, 539 (1927). See also Commonwealth v. Byrd, supra, 490 Pa.

This threshhold [sic] burden, however, is irrelevant to the Commonwealth’s ultimate burden of proof. It is of course settled that the Commonwealth must prove every element of the crime charged beyond a reasonable doubt, Commonwealth v. Ewell, 456 Pa. 589, 319 A.2d 153 (1974); and implicit in that burden is the requirement that the Commonwealth must prove beyond a reasonable doubt that a crime was in fact committed — in a homicide case, that death was caused by felonious means. Commonwealth v. Moore, 466 Pa. 510, 513, 353 A.2d 808, 810 (1976); Commonwealth v. Lettrich, 346 Pa. 497, 502, 31 A.2d 155, 156 (1943); Gray v. Commonwealth, 101 Pa. 380, 386 (1882). The distinction between the quantum of proof required to establish the corpus delicti and that required to prove that a crime was in fact committed has been explicitly stated by our Supreme Court in Commonwealth v. Ware, supra:

We do not lose sight of the distinction between the requirement of corroboration of the statements of the accused and the Commonwealth’s ultimate burden of proof. The former merely requires that the trial court be satisfied that a conviction will not result from a confession or admission when no crime has in fact been committed by anyone. Ultimately, the Commonwealth must prove beyond a reasonable doubt that a crime has in fact been committed. Commonwealth v. May, 451 Pa. 31, 33 n. 2, 301 A.2d 368, 370 n. 2 (1973); Commonwealth v. Maybee, 429 Pa. 222, 223, 239 A.2d 332, 333 (1968).

459 Pa. at 367 n. 43, 329 A.2d at 275 n. 43.

It is clear, therefore, that the trial court erred when it instructed the jury that it had to “disregard [appellant's admission] unless [it was] satisfied by the other evidence that Thomas Morgan is dead and that his death was probably caused feloniously by someone killing him.” By this instruction the court permitted the jury — in theory, at least; whether in fact will be discussed next — to decide that a crime was committed only as a matter of probability, and then to proceed from that decision to the further decision that if a crime was committed, appellant was beyond a reasonable doubt the one who had committed it. This reasoning represents an impermissible dilution, or lessening, of the Commonwealth’s ultimate burden, and to avoid that, the court should have instructed the jury that before it could consider appellant’s admission, it had to be satisfied not probably but beyond a reasonable doubt that Morgan’s death was caused feloniously.

Id. 349 Pa.Super. at 340-342, 503 A.2d at 30-31. (footnotes omitted). See also: Commonwealth v. Fried, supra.

“[W]here ... the evidence is in doubt as to the manner or cause of death, the question of the existence of the corpus delicti should first be determined [by the jury] without consideration of the defendant’s admission of guilt.” Commonwealth v. Frazier, 411 Pa. 195, 203, 191 A.2d 369, 373 (1963). “Before a conviction can be had, it must always appear, beyond a reasonable doubt, that death was caused as a result of some felonious act, and, if this is shown, then the agency of the defendant in committing the crime may be made evident by his voluntary declarations.” Commonwealth v. Puglise, 276 Pa. 235, 238, 120 A. 401, 402 (1923). See also: Gray v. Commonwealth, 101 Pa. 380, 386 (1882). In practice, therefore, the corpus delicti rule “requires that the jury may not consider such confession as evidence of defendant’s guilt of the crime charged, unless the Commonwealth shall have produced evidence sufficient to convince the jury beyond a reasonable doubt that the crime charged was committed by someone.” Commonwealth v. Lettrich, 346 Pa. 497, 502, 31 A.2d 155, 157 (1943). See also: Commonwealth v. Tallon, 478 Pa. 468, 475-476, 387 A.2d 77, 81 (1978) (Opinion in Support of Affirmance) (“It is the rulé in this Commonwealth that before a jury can consider a defendant’s confession, it must be convinced beyond a reasonable doubt that the corpus delicti has been established.”).

In the instant case, the trial court instructed the jury as follows regarding the defendant’s statement:

As I told you, you may not consider this statement as evidence against the defendant unless you first find beyond a reasonable doubt that a crime was committed.
In making this preliminary determination, you may consider any direct or circumstantial evidence, apart from the aforesaid statement tending to prove or disprove a crime. More precisely, you must disregard the statement unless you are satisfied beyond a reasonable doubt by other evidence in the case than [sic] Dr. Paul Fried is dead, and that his death was probably caused by someone feloniously killing him. A killing is felonious if it is either murder or voluntary manslaughter by some person’s criminal act in suffocating him.
The other evidence in this case, aside from the defendant’s aforesaid statement, need not tend to show that the crime was committed by the defendant, only that the crime was committed by someone.
The other evidence need not rule out all possibility of accident, suicide or natural causes. It is enough if you are satisfied beyond a reasonable doubt that the cir cumstances are more consistent with death having been caused by a felonious killing by suffocation than in some other way.
The object of these rales is to guard against convicting a person of a crime that never really happened even though the person confessed to it. (emphasis added).

During the course of these instructions, it will be observed, the trial court twice stated the rule incorrectly. It confused the Commonwealth’s initial burden of establishing the admissibility of the defendant’s statement with the Commonwealth’s ultimate burden of proving beyond a reasonable doubt that a crime had been committed.

After its deliberations had commenced, the jury returned to the courtroom to ask the following questions:

Are we correct that the testimony of Jerry Sklar that Mrs. Fried said to him that she killed Dr. Fried cannot be considered until we determine that there was a crime? Can we consider the testimony of Jerry Sklar that Mrs. Fried told him that she killed Dr. Fried to help us determine whether or not a crime had been committed?

Instead of giving the jury definitive answers to its questions, the trial court repeated the same erroneous instructions which it had previously given. Although the defendant had requested the trial court to give simple “yes” and “no” answers to the jury’s inquiries, “[t]he scope of supplemental instructions given in response to a jury’s request rests within the sound discretion of the trial judge.” Commonwealth v. Haddle, 271 Pa.Super. 418, 422, 413 A.2d 735, 738 (1979). See also: Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975). However, where, as here, the initial instruction was erroneous, or misleading, or both, to merely repeat the same instruction was a clear abuse of discretion. Because the jury in this case was incorrectly instructed on the corpus delicti rule and because the erroneous instruction appears to have caused confusion in the minds of the jurors which may have contributed to their verdict, the judgment of sentence must be reversed and the case remanded for a new trial.

We find no merit in the remaining assignments of error argued by appellant on appeal. We discuss them briefly in order to render a complete review. First, appellant contends that it was error to allow Dr. Michael Baden to testify, in response to a hypothetical question, that in his opinion Dr. Fried had died of homicidal suffocation. This testimony was improper, appellant contends, because Dr. Baden took Mrs. Fried’s alleged confession into consideration in formulating his opinion. Our review of the record, however, discloses that the witness’s opinion regarding the cause of death was based on medical considerations and not on admissions allegedly made by the defendant. This was sufficient to establish the corpus delicti. See: Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980) (corpus delicti requirement is met once independent corroborative evidence is introduced which is more consistent with crime than with other cause). The corpus delicti having been established, it was not improper to allow the Commonwealth to inquire hypothetically if death by suffocation was consistent with a person sitting on a pillow used to cover the face of the deceased.

Appellant also contends that she was unfairly restricted in her cross-examination of Dr. Baden. More specifically, she contends that the trial court erred when it refused to permit her to impeach Dr. Baden by reading the conclusions which had been included in Dr. Helpern’s autopsy report. Dr. Baden conceded that he had relied on findings made during the autopsy by Dr. Helpern, but his conclusions varied from those of Dr. Helpern. The trial court permitted the witness to be cross-examined regarding the findings made by Dr. Helpern, but refused to allow Dr. Helpem’s opinions to be read to the jury because Helpern was not available for cross-examination. We find no error in this ruling. See: Ganster v. Western Pennsylvania Water Co., 349 Pa.Super. 561, 504 A.2d 186 (1985).

Finally, appellant complains because she was not permitted to ask Gerald Sklar on cross-examination if he hadn’t lied during two unrelated murder trials and if Michael Selkow was in fact an accomplice in the commission of murders for which Sklar had been convicted. By this line of questioning she intended to “show[ ] the jury the nature, relationship, and previous planned perjury by the two persons who provided the only evidence against [her] in this case.” However, “[t]he scope and limits of cross-examination are largely within the discretion of the trial court and its actions pertaining thereto will not be reversed in the absence of a clear abuse of its discretion or error of law.” Commonwealth v. Buehl, 510 Pa. 363, 388, 508 A.2d 1167, 1179 (1986). See also: Commonwealth v. Schmidt, 437 Pa. 563, 263 A.2d 382 (1970). To refuse to allow a defendant to cross-examine a Commonwealth witness regarding false statements allegedly made in an unrelated case is not an abuse of discretion. See: Commonwealth v. Buehl, supra 510 Pa. at 388, 508 A.2d at 1180; Commonwealth v. Smith, 240 Pa.Super. 212, 216-217, 361 A.2d 862, 865 (1976), rev’d on other grounds, 477 Pa. 424, 383 A.2d 1280 (1978). See also: Packel and Poulin, Pennsylvania Evidence, Ch. VI, § 608.2 (1987). Neither Sklar nor Selkow had been convicted of perjury, and their testimony in unrelated litigation was a collateral matter having little, if any, relevancy to the case being tried. The trial court did not abuse its discretion when it refused to allow cross-examination regarding these collateral matters.

For the reasons previously set forth, however, a new trial is required.

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . By this time, Dr. Fried’s body had been cremated.

      . At the time of appellant’s trial, Sklar was serving two concurrent life sentences for murder. The jury at appellant’s trial was made aware of this fact.