author:
BROSKY, Judge:
      CIRILLO, Judge,

text:
    437 A.2d 431
    COMMONWEALTH of Pennsylvania v. Nicholas KARABIN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued June 9, 1980.
    Filed Nov. 20, 1981.

      Todd J. O’Malley, Scranton, for appellant.
    Ernest Preate, District Attorney, Scranton, for Commonwealth, appellee.
    Before BRODSKY, HOFFMAN and CIRILLO, J.J.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania is sitting by designation.

   BROSKY, Judge:

On January 17, 1979, appellant, Nicholas Karabin, pleaded guilty to a charge of aggravated assault. On March 27, 1979, a hearing was held at which Karabin was sentenced, however, prior to his sentencing, he presented to the court a request to withdraw his plea. Saying that the District Attorney should have an opportunity to review the motion, the trial court postponed ruling on it until a future date. The court did, however, proceed with sentencing imposing upon appellant a sentence of not less than five years nor more than ten years imprisonment. Trial counsel did not object to the lower court’s sentencing procedure. Therefore, Karabin has waived any claim that the procedure followed at the hearing was improper. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). On appeal, however, appellant claims that trial counsel was ineffective in failing to object to the trial court’s actions at the sentencing hearing. Appellant is represented by new counsel and the issue is properly before us. We agree that trial counsel was ineffective and therefore reverse the order of the trial court and remand to that court for a hearing on Karabin’s motion to withdraw the guilty plea.

On April 6, 1979, Robert Christiano was shot in the back of his neck. Christiano subsequently identified Karabin as the man who shot him. Karabin was also identified as the assailant by a witness to the incident who saw Karabin run across a street very shortly after he heard the sound of a gun shot emanate from that street.

At trial, the testimony given at another trial by Leith Howell, Karabin’s paramour, was stipulated by the Commonwealth and by Karabin and incorporated by reference into the trial. She stated that she had lived with Karabin at various times and that he had said to her that he planned to commit a series of slayings including that of taking his own life based upon the theory that such a pattern of action would withdraw him from suspicion as to the murder of his wife. Ms. Howell also stated that on the date of incident involved in the instant case that she had travelled with Karabin in his car to a location a few blocks from the location at which the assault occurred. She claims also that Karabin told her at some later time, after she had left the car and subsequently returned, that he had shot a person.

The standard by which we review ineffectiveness of counsel cases is well established. First, we must determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Jennings, 285 Pa.Super. 295, 427 A.2d 231 (1981). If the issue is found to have arguable merit then we must determine if the trial counsel’s actions had some reasonable basis. If any reasonable basis exists, counsel cannot be found to have been ineffective. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

We find no reason to remand for an evidentiary hearing on this issue because it is quite clear from the record that the claim lost by reason to object to the sentencing procedure was of arguable merit. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). We are able to reach this conclusion after an independent review of the record. See Commonwealth v. Crawford, 285 Pa.Super. 169, 427 A.2d 166 (1981).

Pennsylvania Rule of Criminal Procedure 1405 provides:

Rule 1405. Sentencing Proceeding

At the time of sentencing, the judge shall:
(a) ...
(b) . ..
(c) advise the defendant on the record:
(2) of the right to file motions challenging the propriety of the sentence (and, in the case of a plea of guilty, the validity of the plea or the denial of a motion to withdraw the plea);

We have consistently held that a motion to withdraw a guilty plea presented a trial judge at a sentencing hearing prior to the imposition of a sentence pursuant to Pa.R.Cr.P. 1405 shall be responded to by the trial court prior to the imposition of sentence. Commonwealth v. Waters, 255 Pa. Super. 107, 386 A.2d 159 (1978). Our Supreme Court has stated that requests to withdraw guilty pleas made prior to sentencing shall be granted liberally absent any substantial prejudice to the Commonwealth. Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973). This standard is in stark contrast to that provided for the withdrawal of a guilty plea after the imposition of sentence. A defendant can only withdraw his guilty plea after sentencing where he can demonstrate a showing of substantial prejudice amounting to manifest injustice exists against him. Commonwealth v. Robinson, 253 Pa.Super. 496, 385 A.2d 448 (1978). Thus, the timing of a motion to withdraw a guilty plea is of substantial importance to a defendant.

As a result of this failure to object, appellant lost the chance to demand that the more lenient pre-sentencing standard be applied to his motion. It is clear that the trial court did not apply a pre-sentence standard. In its opinion the court wrote, “We have no doubt that the sentence imposed on defendant is what prompted his immediate request to withdraw his plea.”

We find no reasonable basis for trial counsel’s failure to object to the deferral of a ruling on the motion until after sentence had been imposed. Entering an objection would not have prejudiced appellant’s position at the sentencing hearing. Defense counsel’s failure to object did not aid appellant in any way. Furthermore, we see no way in which it was designed to further appellant’s interests. A claim of at least arguable merit was waived without reason.

Accordingly, we vacate Karabin’s sentence and remand to the trial court for a pre-sentence hearing on Karabin’s motion to withdraw his guilty plea. Commonwealth v. Hubbard, supra.

CIRILLO, J., files dissenting opinion.

CIRILLO, Judge,

dissenting:

There are two standards for the court to use in deciding whether to allow a defendant to withdraw his or her guilty plea. The court’s determination of which standard to use depends on whether the request for withdrawal of the plea was prior to sentence or after the sentence.

Pennsylvania case law states that pre-sentence requests for withdrawal should be “liberally allowed” in light of the gravity of the plea and the defendant’s waiver of numerous rights. Pre-sentence withdrawal should be permitted for any “fair and just” reason unless the prosecution has suffered substantial prejudice. Commonwealth v. Hayes, 462 Pa. 291, 341 A.2d 85 (1975). The stricter post-sentence standard states that there must be “manifest injustice” towards the defendant before the court will permit withdrawal of the plea. This distinction is the basis for the majority’s decision in this case, that is, whether the guilty plea was withdrawn before or after sentencing. The presentence and post-sentence distinction, however, is marginal in that it fails to account for a substantial prejudice towards the Commonwealth that occurs in both pre- and post-sentencing, judge shopping.

Judge-shopping by means of a guilty plea is a practice used by defense attorneys whereby the attorney will instruct his client to plead guilty in front of a judge if the attorney does not want that judge to try his client’s case or if a continuance is denied, as in this case. Either before or after sentence, the defendant will request to withdraw his plea. If the request is granted, the defendant’s attorney will ask the judge who heard the guilty plea to recuse himself because of the prejudicial information that the judge heard in the defendant’s guilty plea. The judge should and almost always will honor this request. Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973). The defense attorney, therefore, has effectively eliminated the judge from further proceedings in the hope of getting a more lenient judge.

In Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976), the prosecution argued that it would be substantially prejudiced if the defendant were permitted to withdraw his guilty plea because the witnesses at the guilty plea might refuse to testify at a trial. The court responded to this argument by stating that the possibility of the witnesses refusing to testify at trial was only speculation and the prosecution was not substantially prejudiced. One could argue that a court would be speculating and thus (the Commonwealth is) not substantially prejudiced if the court refused to allow withdrawal of a guilty plea because it believed that the defense attorney was judge-shopping. However, the facts of this case illustrate the belief that judge-shopping is more than speculation.

The defendant’s attorney came before Judge Caldwell and asked for a continuance because he felt that his client was incompetent to stand trial. A continuance, if granted, would postpone the case to a later term and a judge would be randomly selected to hear the proceedings. The defendant, thus, would have a good chance of having another judge hear his case. However, a psychiatrist testified that the defendant was competent, and Judge Caldwell denied the continuance. The defendant then pled guilty before Judge Caldwell. The Judge heard the plea (and conducted a guilty plea colloquy) and found that the defendant entered his plea knowingly and voluntarily. It is apparent that the defendant (with an overwhelming amount of evidence against him) attempted to withdraw his plea in an attempt to remove Judge Caldwell from the case. If the withdrawal is granted, Judge Caldwell should recuse himself from trial because hearing the defendant’s guilty plea would be sufficient to prejudice the defendant. The defendant does not have to demonstrate that the guilty plea would actually influence the judge as long as it is sufficient to give rise to prejudice. Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973). Thus, the defendant has attempted, through a request for a continuance, a guilty plea and then a request for a withdrawal of the guilty plea, to judge-shop. Although the defendant must still stand trial, the majority’s decision to grant the withdrawal substantially prejudices the Commonwealth and destroys one of the most important purposes behind random judge selection.

If the defendant is permitted to withdraw his plea, he should not be permitted to take the stand and deny his guilt under oath since he already admitted his guilt under oath. Also, his lawyer should not be permitted to call witnesses to contradict the defendant’s admission under oath for such conduct would be unethical. Any claim of privilege of attorney-client relationship is waived by the defendant’s admission in open court, under oath, of his guilt. The court can envision occasions where the above rule can be set aside because of misunderstanding, duress, or the admission not having been intelligently and voluntarily made; but in those cases, the burden would be on the defendant to fall within the exception of the rule. For these reasons, I respectfully dissent.

      . We do not agree with Judge Cirillo’s statements. We are limited to the facts of record which include no evidence of “judge shopping.” Such speculation by our court as to the reasons for litigants’ actions is improper. We cannot condone the actions of the trial court herein upon some speculative theory that Karabin was attempting to manipulate our jurisprudential system in a manner so as to assure himself a lenient sentence.
      The law is quite clear that a defendant is to be given liberal opportunity to withdraw his guilty plea prior to sentencing. We cannot find any merit in these contentions. The defendant’s privilege to withdraw his guilty plea, though not an absolute right, is given great deference in our system of jurisprudence so as to assure that no defendant pleads guilty to an offense to which he believes and desires to assert his innocence. It appears to us that this is the very bedrock of our system of justice. We must permit a defendant to assert his innocence until he has been proven guilty or choses to plead his guilt.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    437 A.2d 435
    COMMONWEALTH of Pennsylvania v. Charles TUMMINELLO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed Nov. 20, 1981.
    Petition for Allowance of Appeal Denied April 2,1982.

      John H. Corbett, Jr., Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

Appellant, Charles Tumminello, was found guilty of Criminal Conspiracy and Aiding Consummation of Crime by a jury. Following the filing of post-trial motions, appellant was sentenced to three (3) years probation, ordered to make restitution and to pay the costs of prosecution. This appeal from the Judgment of Sentence followed, which we now affirm.

On appeal, appellant, represented by counsel other than trial counsel, complains that: 1) the evidence was insufficient to warrant his conviction; 2) trial counsel was ineffective; and 3) the trial court erred in admitting certain testimony by a Commonwealth witness into evidence.

The facts relating to the instant case, when viewed in a light most favorable to the Commonwealth, see Commonwealth v. London, 461 Pa. 566, 337 A.2d 549 (1975); Commonwealth v. Malone, 444 Pa. 397, 281 A.2d 866 (1971), reveal that around 4:00 P.M. on October 17, 1978, Mrs. William Adams returned home to find her residence burglarized. The safe, containing various items of value, a “CB” radio, “Fuzzbuster,” money and assorted gems valued at $35,000 to $40,000 were missing. The theft was reported to police.

In an incident unrelated to the Adams’ burglary, the Fox Chapel police, on November 10, 1978, pursued Dolores and Jeffrey Snyder in a high-speed chase before arresting them for robbery, burglary and aggravated assault. The Fox Chapel authorities, believing that the incident was part of a major burglary ring operating in the township, contacted the Allegheny County Police for assistance. Det. Morton, who was also involved in the Adams investigation, was assigned to the case.

On the night the Snyders were taken into custody, Det. Morton interviewed Jeffrey. During the course thereof, Jeffrey made various phone calls in Det. Morton’s presence, one of which was to the appellant. On November 16, 1979, a preliminary hearing was held for Jeffrey Snyder, at which the appellant was seen by Det. Morton but he thought nothing of the association. It so happened that three days after the proceeding, Det. Morton was contacted by one William Bender. A meeting was set up and, in the presence of an assistant district attorney and Det. Morton, Bender incriminated himself, the Snyders and the appellant in the Adams burglary. Appellant was arrested on December 5, 1978.

Appellant questions the sufficiency of the evidence to establish his guilt for criminal conspiracy.

The essence of conspiracy is a common understanding or agreement. Commonwealth v. Fontana, 265 Pa.Super. 387, 401 A.2d 1361 (1979). However, the Commonwealth is not required to establish the existence of a conspiracy by direct proof or an explicit or formal agreement. Id. “Indeed, direct proof of an explicit or formal agreement to commit a crime can seldom, if ever, be supplied and it need not be for ‘it is established law in this Commonwealth that a conspiracy may be proved by circumstantial evidence as well as by direct evidence.’ ” Commonwealth v. Roux, 465 Pa. 482, 488, 350 A.2d 867, 870 (1976). The nature of the crime usually makes it susceptible of no other proof than by circumstantial evidence. Commonwealth v. Evans, 190 Pa. Super. 179, 154 A.2d 57 (1959), aff’d 399 Pa. 387, 160 A.2d 407 (1960), cert. denied, 364 U.S. 899, 81 S.Ct. 233, 5 L.Ed.2d 194, reh. denied, 364 U.S. 939, 81 S.Ct. 377, 5 L.Ed.2d 371. To assist the finder of fact in determining whether a corrupt confederation is present, the relationship and conduct of the parties and the circumstances surrounding their activities can be examined to deduce, inferentially, if a conspiracy exists. Commonwealth v. Fontana, supra. In the case sub judice, the jury had the uncorroborated testimony of a co-conspirator (William Bender), which, if believed, would be sufficient proof to support a conviction. Commonwealth v. Ridgely, 243 Pa.Super. 397, 365 A.2d 1283 (1976).

At trial, Bender recounted how he and the Snyders gained entry into the Adams’ home and then ransacked the premises looking for a safe. After it was found, Jeffrey and Bender placed it in the trunk of the vehicle. En route from the scene, Bender stopped to allow Jeffrey to make a phone call. When Bender inquired whom he had called, Jeffrey answered, “I called Chuck, ‘Who else would I call.’ ” (N.T.20) Bender then drove to appellant’s residence; upon arrival, Dolores Snyder knocked on the front door. According to Bender, “[appellant] was rather happy to see Dolores. He kissed her, and [appellant] shook his—Jeffrey Snyder’s hand, and [Bender] shook [appellant’s] hand.” (N.T.22) Once inside, Jeffrey asked appellant where they could work, and appellant stated, “Back your vehicle into the garage.” (N.T.25) Appellant assisted the others in lifting the safe out of the trunk and supplied to tools (a wood wedge and a two and a half pound sledge) to open it. (N.T.27) Once opened, its contents were divided among the group—appellant “was handed $300,” and other items from the burglary. (N.T.33-34) The appellant then led the group to a nearby stream where the safe was disposed of.

Appellant’s accounting of the incident was at odds with Bender’s version. For example, appellant admitted receiving a phone call and to seeing Jeffrey, but that the visit was less than cordial. That is, Jeffrey was described as brandishing a gun and ordering the appellant to “Get the fuck out of here.” (N.T.19) Appellant went on to testify that he felt so “intimidated” that he retreated to a separate room and remained there during the more than 3V2 hours that the trio used his garage. (N.T.ll & 23) Further, appellant stated that the police were not called because he was “frightened . .. they[, i. e., the Snyders and Bender,] might retaliate against [him] because they had made th[e] threat to [him].” (N.T.23) Additionally, appellant denied aiding in disposing of the evidence or sharing in any profits secured from the Adams’ home.

Given the divergency in the testimony of the witnesses, and since it is within the prerogative of the fact finder to believe all, part or none of the testimony of any witness, Commonwealth v. Roux, supra, “we will not engage on appeal in a weighing of the evidence in an attempt to second-guess the jury, for such is not our function.” (Citations omitted) Commonwealth v. Harrison, 290 Pa.Super. 389,-, 434 A.2d 808, 811 (1981); Commonwealth v. Ridgely, supra. Suffice it to say, we find that the evidence adduced at trial established the existence of a conspiracy to rob the Adams’ home. As a corollary thereto, we hold that the completion of the burglary did not terminate the conspiracy, and that trio’s flight to the appellant’s home (prior to which Snyder phoned the appellant that he was coming over) and the group’s efforts to conceal the evidence (during which the appellant made incriminating remarks testified to by Bender) were done in furtherance of the confederation. See Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981). Accordingly, we determine that the evidence presented was “ ‘competent to prove that a corrupt confederation ha[d] in fact been formed[,]’ ” Commonwealth v. Roux, supra, 465 Pa. at 488, 350 A.2d at 870, and that appellant “intentionally aid[ed] another to accomplish an unlawful object of a crime, as by safeguarding the proceeds thereof . ...” 18 Pa.C.S.A. § 5107(a). The fact that the appellant may not have been present during the burglary makes him no less accountable for the acts of his co-conspirators. See Commonwealth v. Roux, supra; Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193 (1955).

Appellant’s second claim attacks trial counsel’s stewardship for permitting damaging hearsay evidence to be introduced without objection. The complaint of testimony was elicited from Mr. Bender. The first concerns Jeffrey’s response to Bender’s inquiry as to whom he had phoned after the burglary, to which Jeffrey answered, “I called Chuck, ‘Who else would I call.’ ” (N.T.20) The second attributes appellant with saying, in response to Jeffrey’s statement that the evidence could be removed to a location near a church, “Oh, yeah, I know where you’re talking about.” “There’s a little stream down there you can dump it in, the water’s about 'fifteen feet deep.” (N.T.37)

To start with, the examination and cross-examination of witnesses and the determination as to when to interpose objections are matters clearly within the province of trial counsel. Commonwealth v. Witherspoon, 481 Pa. 321, 392 A.2d 1313 (1978). Next, we do not take issue with appellant’s categorization of the statements made by Bender as “hearsay.” However, in Pennsylvania, the out-of-court declarations of one co-conspirator can be admitted against another co-conspirator provided that the declarations were made during the conspiracy and in furtherance of the common design.

In Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980) our Supreme Court reaffirmed its approval of the use of evidence of a co-conspirator’s attempt to conceal evidence after the commission of a crime, finding that such acts “c[a]me within the scope of the conspiracy to commit the crime.” Id., 489 Pa. at 92, 413 A.2d at 1028. In so doing, the Evans court directed that the following test be followed:

“ ‘The duration of a conspiracy depends upon the facts of the particular case, that is, it depends upon the scope of the agreement entered into by its members. Generally, the conspiracy ends when its principal objective is accomplished because no agreement to retain secrecy after the achievement of the unlawful end can be shown or implied by mere “acts of covering up.” Thus in Grunewald v. United States, supra, 353 U.S. [391] at 402, 77 S.Ct. [963] at 972, [1 L.Ed.2d 931 (1957),] the Supreme Court stated, “Acts of covering up, even though done in the context of a mutually understood need for secrecy, cannot themselves constitute proof that concealment of the crime after its commission was part of the initial agreement among the conspirators.” But the fact that the “central objective” of the conspiracy has been nominally attained does not preclude the continuance of the conspiracy. Where there is evidence that the conspirators originally agreed to take certain steps after the principal objective of the conspiracy was reached, or evidence from which such agreement may reasonably be inferred, the conspiracy may be found to continue. Atkins v. United States, 307 F.2d 937, 940 (9th Cir. 1962); cf., United States v. Allegretti, 340 F.2d 254, 256 (7th Cir. 1964), cert. denied, 381 U.S. 911, 85 S.Ct. 1531, 14 L.Ed.2d 433 (1965).... The crucial factor is the necessity for some showing that the later activities were part of the original plan.’ ” (Footnote omitted) (Citations omitted) Id., 489 Pa. at 92-93, 413 A.2d at 1028-29.

Applying this test to the facts at bar, we observe that instantly we had more than mere “overt acts of concealment.” Commonwealth v. Evans, supra, 489 Pa. at 93 n. 7, 413 A.2d at 1029 n. 7. To-wit, we had evidence of a “conversation” between Jeffrey and appellant as to the selection of the ..best site for the disposal of the safe. As a result, we conclude that, based on all the evidence apd the reasonable inferences to be derived therefrom, the prosecution presented sufficient proof from which the jury could infer that the group agreed to take certain steps after the principal objective of the conspiracy was reached to conceal the evidence as part of the conspiracy. Id. Therefore, we are persuaded that the statements made by the appellant in Bender’s presence were declarations made during the conspiracy and in furtherance of the common design. See Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981); Commonwealth v. Pass, 468 Pa. 36, 360 A.2d 167 (1976); McCormick, Law of Evidence, § 267, p. 645 (2d Ed. 1972). We also find that Jeffrey’s statement to Bender, incriminating the appellant, was likewise made during the conspiracy and in furtherance thereof. The fact that appellant was not present during the exchange does not militate against its use at trial. See Commonwealth v. Ellsworth, 409 Pa. 505, 187 A.2d 640 (1963). Consequently, since the statements were an exception to the hearsay rule, counsel cannot be deemed ineffective for failing to object to their admission at trial. See Commonwealth v. Evans, supra.

Lastly, appellant argues that Det. Morton’s testifying as to Jeffrey phoning the appellant and to seeing appellant at the preliminary hearing were totally irrelevant to the charge of criminal conspiracy since they occurred after the purported confederation terminated. This, he urges, prejudiced him in the eyes of the jury. Such contention is predicated principally upon appellant’s interpretation of the rulings of Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973) and Commonwealth v. Ellsworth, supra.

In Hickman, the Commonwealth failed to link the murder weapon (a .32 caliber automatic pistol) to the defendant, who, on cross-examination, denied owning or taking such weapon to a shop for repairs. On rebuttal, the Commonwealth had the proprietor of a gunsmith shop testify to repairing a Beretta pistol for the defendant and test firing it into a bullet trap that he had been using for ten years for just such purpose. All the bullets therein were retrieved, and the Commonwealth’s ballistic’s expert testified that two out of the eighty .32 caliber bullets removed therefrom had been fired from the murder weapon.

The court in Hickman found the expert’s testimony to be irrelevant to the issue of the gunsmith’s credibility. Also, the court found that the testimony did not corroborate the gunsmith’s statement that the defendant had brought a .32 caliber pistol to his shop, nor did it tend to show the validity of that statement. As a result, because the expert’s testimony was held irrelevant, the court determined that its potential prejudice warranted a reversal. Presently, unlike in Hickman, the Commonwealth did link the appellant with incriminating evidence (the stolen safe) through the testimony of a co-conspirator, the admissibility and validity of which we have discussed supra. Thus, we find that the testimony of Det. Morton was neither irrelevant nor prejudicial, since it buttressed evidence already admitted in the Commonwealth’s case-in-chief that the appellant knew of and associated with Jeffrey. In fact, appellant admitted doing accounting work for Jeffrey and, as a client of his, socializing with him on occasion. Consequently, even if we assume for the sake of argument that Det. Morton’s testimony was improperly admitted, “[erroneously admitted evidence is harmless if there is other evidence to establish the same facts.” (Citation omitted) Commonwealth v. Garcia, 478 Pa. 406, 424, 387 A.2d 46, 55 (1978). Such was the case here.

Appellant’s citation to Commonwealth v. Ellsworth, supra, does not alter our ruling, since, as noted above, the statements of Det. Morton were admitted principally to show that the appellant knew his co-conspirators, and not to establish the existence of a conspiracy per se.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 903(a)(1).

      . Id. at § 5107.

      . Private counsel withdrew from representing appellant at the completion of the trial. The trial court ordered an attorney from the Allegheny County Public Defender’s Office to file post-trial motions. One of the claims raised therein related to trial counsel’s ineffectiveness, which was denied.


text:
    437 A.2d 440
    COMMONWEALTH of Pennsylvania v. George Steve McLAURIN, a/k/a Steven George McLaurin, a/k/a Steve Lyons, a/k/a Steve McQueen, Appellant.
    Superior Court of Pennsylvania.
    Argued May 1, 1981.
    Filed Nov. 20, 1981.

      Gary V. Skiba, Erie, for appellant.
    Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before POPOVICH, MONTGOMERY and HOFFMAN, JJ.
   Judge:

After appellant’s Motion to Suppress was denied, a jury found him guilty of Robbery (18 Pa.C.S.A. § 3701) and Conspiracy (18 Pa.C.S.A. § 903). Thereafter, a Motion for a New Trial and/or in Arrest of Judgment was denied, and appellant was sentenced to a term of ten to twenty years imprisonment for Robbery and two-and-a-half to five years for Conspiracy. This appeal followed.

The appellant does not raise the question of the sufficiency of the evidence or complain of the sentence imposed, but contends, inter alia, that counsel was ineffective for permitting the suppression hearing to be held in appellant’s absence. We agree and, accordingly, remand for proceedings consistent with this Opinion.

On the date scheduled for the suppression hearing, the Commonwealth’s attorney informed the court that “the eye witness [sic] [was] not present in the Courtroom. He [was] apparently out of town.” (SH 3) Appellant’s counsel objected to proceeding without such witness. In light of the fact that such witness’ on-the-scene identification prompted appellant’s arrest, counsel considered such person “an essential witness to the suppression.” Id. To placate counsel, the court offered him the option either to continue the hearing to a later time or take the testimony of those witnesses who were present, and, at the completion of same, make his motion for a continuance. Counsel agreed to the latter, but, at the termination of the hearing, he never renewed his request for a continuance. At the suppression, the victim did not appear. As a result, the facts elicited were from the only three witnesses (Sgt. James Mack, Officers Frank Bugaj and Donald Metzgar) who testified, viz.:

At approximately 1:20 A.M. on November 23, 1979, Andrew Yurasko was robbed of his wallet and watch by two black males as he left the Polish National Alliance (PNA) Club, located at 21st and Ash Streets in Erie, Pennsylvania. Sgt. Mack, of the Erie Police, received a radio call of the robbery and arrived on the scene within a matter of minutes. Mr. Macey, an eyewitness to the incident, approached the Sgt. and informed him that he (Macey) had observed two blacks running from the PNA parking lot and enter a 1969 or 1970 brown Buick, Reading east on 21st Street. Mr. Macey told the Sgt. that the driver was wearing a light tan jacket and light tan hat, while the passenger was described as wearing a dark black hat and a dark jacket. Sgt. Mack relayed the information via radio within a minute of receiving it; within a matter of two or three minutes, Officers Metzgar and Washburn spotted the brown Buick and apprehended the two blacks therein. The stop occurred at 18th and Thompson, a site about twelve blocks from the PNA Club. The eyewitness was taken to the location and once there, with the suspects standing alongside their vehicle and the police “[rjight with them,” he identified the vehicle and the driver, Anthony Paul, but “[h]e didn’t identify [the appellant].” (SH 22) The two were then formally arrested.

Immediately after the taking of testimony, the following revealing remarks were made:

“[COMMONWEALTH’S ATTORNEY]: Your Honor, I would like the record to show the Defendant’s [sic] are not present and they waived the presence of the hearing. [APPELLANT’S ATTORNEY]: We probably should have asked them if he [sic] wanted to be here. I would waive it for them but I certainly can’t waive their rights. They might—I will put this on the record, there is no information that my client could have given me that could have been pertinent at this point.
[COMMONWEALTH’S ATTORNEY]: That’s all we have, your Honor.” (SH 40-41)

Initially, the Court notes that its perusal of the record failed to produce any evidence to substantiate the Commonwealth’s assertion that appellant “Waived” his right to be at the hearing. 6As for appellant’s contention, when distilled, that suppression counsel was ineffective for permitting the hearing to be conducted in his absence, we observe that this exact issue has yet to be ruled upon in this jurisdiction by an appellate court.

The general rule on this question before the Court is that a defendant charged with a felony has a constitutionally protected right to be present at every stage of a trial, i. e., from the arraignment to the rendition of the verdict. See Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892) (“A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner.”) Brinlee v. Crisp, 608 F.2d 839, 848 (10th Cir. 1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980); see also Commonwealth v. Hoss, 445 Pa. 98,114, 283 A.2d 58, 67 (1971); Commonwealth ex rel. Lockhart v. Myers, 193 Pa.Super. 531, 540, 165 A.2d 400, 405 (1960), cert. denied, 368 U.S. 860, 82 S.Ct. 102, 7 L.Ed.2d 57 (1961); 10A P.L.E. Criminal Law §§ 502 and 503 (1970). However, such right can be relinquished, e. g., it can be waived by one’s words or actions. See Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970); Badger v. Cardwell, 587 F.2d 968 (9th Cir. 1978); Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976); see generally Commonwealth v. Diehl, 378 Pa. 214, 219, 107 A.2d 543, 545 (1954); Commonwealth ex rel. Hancock v. Maroney, 177 Pa.Super. 133, 110 A.2d 923 (1955). In Pennsylvania, such right is reflected in Pa.R.Crim.P. 1117, which provides in pertinent part: “[t]he defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence . ... ” Instantly, appellant’s counsel’s statement at the suppression hearing that he was not waiving the appellant’s right to be present, negates any inference that appellant’s absence was a voluntary, knowing and intelligent one. See Diaz v. United States, 223 U.S. 442, 453-459, 32 S.Ct. 250, 253-255, 56 L.Ed. 500 (1912); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); see also Commonwealth v. Graham, 248 Pa.Super. 406, 375 A.2d 161 (1977); Commonwealth v. Graves, 238 Pa.Super. 452, 356 A.2d 813 (1976); Commonwealth v. Doctor, 228 Pa.Super. 304, 323 A.2d 790 (1974); Commonwealth v. Felton, 224 Pa.Super. 398, 307 A.2d 51 (1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974); Pa.R.Crim.P. 1117(a) (“. . . The defendant’s absence without cause shall not preclude proceeding with the trial .... ”). As a result, a need to remand for an evidentiary hearing to determine whether appellant’s absence was volitional is obviated. See generally Commonwealth v. Turner, 218 Pa.Super. 173, 275 A.2d 694 (1971) (HOFFMAN, J., dissenting and MONTGOMERY, J. joins); cf. Commonwealth ex rel. Butler v. Claudy, 171 Pa.Super. 573, 91 A.2d 318 (1952) (in a trial involving a non-capital felony, the proceeding is presumed regular and lawful until the contrary appears).

It is widely recognized that a defendant’s presence during all stages of the trial does not extend to purely procedural matters preparatory to the trial, particularly where no prejudice has been shown. See, e. g., United States v. Alessandrello, 637 F.2d 131, 138 n. 11 (3d Cir. 1980) (Fed.R.Crim.P. 43, codified existing law concerning a defendant’s constitutional and common law rights to be present throughout trial, subject to harmless error doctrine); Commonwealth ex rel. Lockhart v. Myers, supra; see also Commonwealth v. Rush, 493 Pa. 358, 426 A.2d 588 (1981); Anno., 85 A.L.R.2d 1111. Additionally, courts generally hold that defendant’s presence is required when testimony of witnesses is received, but under certain circumstances when matters of law are being argued before the court, such as preliminary pre-trial motions which do not affect substantial rights of the defendant, defendant’s attendance is not required. 21A Am.Jur.2d, Criminal Law, § 911 (1981); 23 C.J.S. Criminal Law, § 974, pp. 895-897 (1961); see Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288 (1965) (coroner’s inquest not an adversary proceeding; appellant suffered no prejudice because he did not have an opportunity to be present).

Consistent with the preceding, the Supreme Court of the United States found, in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), that a defendant’s presence was not required during a view of the scene of the crime. In arriving at this conclusion, the Court in Snyder formulated a standard by which the necessity of a defendant’s appearance at a particular stage of his trial may be determined. That is, a defendant needs to be present where, “[i]t bears, or may fairly be assumed to bear, a relation, reasonably substantial, to his opportunity to defend.” Id. at 106, 54 S.Ct. at 332, cited with approval in Commonwealth v. Carter, 219 Pa.Super. 280, 281 A.2d 75 (1971). The Snyder Court went on to state: “So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id. at 107-108, 54 S.Ct. at 333.

In applying the rationale of Snyder to the case at bar, we conclude that appellant was denied due process of law by his counsel’s failure to inform him to appear at the suppression hearing, where witnesses’ testimony regarding his identification as a participant in a crime would be given. This was testimony which tended to show that the appellant had done the acts for which he was being tried, and, therefore, a critical stage in the adjudicatory process for the accused. See United States v. Hurse, 477 F.2d 31, 33 (8th Cir. 1973), cert. denied, 414 U.S. 908, 94 S.Ct. 245, 38 L.Ed.2d 146 (1973). Furthermore, given the failure of the eyewitness to make an on-the-scene identification of the appellant, it is conceivable that the appellant’s presence at such a hearing could have resulted in his giving counsel information that could have led to the exclusion of such damaging (identification) evidence from the consideration of the trier of fact, even though counsel stated otherwise at the hearing. Thus, his presence does bear a reasonably substantial relation to defend in these situations, especially when you consider that the Commonwealth produced witnesses to oppose the Motion to Suppress and the appellant states he would have testified. (Appellant’s Brief at 27); see supra note 7; cf. Commonwealth v. Hoss, supra (appellant’s absence from change of venue hearing was harmless error because: the denial of the change of venue was clearly proper; there was no indication that the defendant desired to testify at the hearing; and, furthermore, appellant was in no way deprived of his right to confront witnesses against him because the Commonwealth did not present any witnesses in opposing the motion). Moreover, we find support for our position in the case of People v. Anderson, 16 N.Y.2d 282, 266 N.Y.S.2d 110, 213 N.E.2d 445 (1965). There it was held that a hearing conducted on a motion to suppress evidence, in which testimony of a witness was received during defendant’s unexplained absence from the courtroom, deprived him of due process of law in denying him an opportunity to be present. The Anderson court, in finding that a hearing at which testimony is taken relative to evidence to be later used at trial is in reality a part of the “trial,” held:

“There is no justification for distinguishing between the defendant’s right to ‘be present’ in connection with testimony elicited at a trial on the propriety of a search and seizure and this same right in connection with testimony taken at a suppression hearing. ‘The statute’s purposes are two: to prevent the ancient evil of secret trials . . . and to guarantee the defendant’s right to be present at all important stages of his trial.’ . .. The significance of the suppression hearing is such that the rationale for requiring the defendant’s presence at the trial applies with equal force to require his presence at the suppression hearing. ‘[A] denial of a motion to suppress evidence is a crucial step in a criminal prosecution: it may often spell the difference between conviction or acquittal’ . . . The distinctions suggested by respondent, between the actual trial and the hearing required by the new statute, ignore the reasons underlying the enforcement of the right to be present whenever testimony is to be taken relating to evidence which is to be used against a defendant. In fact such distinctions lack support in the principles of practice and are equally lacking in reality or logic. The right of the accused to be present as a procedural safeguard at the trial is absolute. Expediency may not dictate procedural changes so as to take from a defendant the right to be present at the taking of testimony, even at a pretrial suppression hearing. At such a hearing the facts of the search and seizure are established for the purposes of the trial and the ruling of the hearing Judge is determinative of the issue of the legality of the search. For this reason the right of a defendant to be present at this hearing is collateral and analogous to his right to be present at the trial. It is hardly necessary to add that the defendant alone may be able to inform his attorney of inconsistencies, errors and falsities in the testimony of the officers or other witnesses. In such a circumstance to hold that his presence is not essential is to deprive him of the opportunity to defend—a denial of the due process—since the determination of the motion to suppress often determines the ultimate question of guilt.” 266 N.Y.S.2d at 112-114, 213 N.E.2d at 447-448.

Accord State v. Howard, 57 Ohio App.2d 1, 385 N.E.2d 308 (1978); Redman v. State, 26 Md.App. 241, 337 A.2d 441 (1975) (MOYLAN, J.); People v. Restifo, 47 A.D.2d 792, 366 N.Y.S.2d 66, 67 (1975).

We find the language in Anderson persuasive. Consequently, we hold that counsel’s decision to conduct a suppression hearing in the absence of his client did not have any basis in reasonable trial strategy. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); cf. Commonwealth v. Tolbert, supra (counsel’s decision to select two jurors without the presence of his client cannot have had any basis in reasonable trial strategy); Commonwealth v. Graves, supra (semble).

The right of the defendant to be present from the time of arraignment, which encompasses the pre-trial phase of the case, is protected by Pa.R.Crim.P. 1117(a). See Commonwealth v. Hoss, supra. The right is absolute unless the defendant is absent without cause, see United States v. Pastor, 557 F.2d 930 (2d Cir. 1977); instantly, there was cause since court-appointed counsel neglected to inform his client to be in court the date set for the hearing. See Commonwealth v. Graves, supra. Thus, since “ ‘[A] denial of a motion to suppress evidence is a crucial step in a criminal prosecution: it may often spell the difference between conviction or acquittal[,]’ ” People v. Anderson, supra, 16 N.Y.2d at 287, 266 N.Y.S.2d 113, 213 N.E.2d at 447; United States v. Hurse, supra, counsel’s failure to make appellant aware of the suppression hearing and the need for his attendance requires a remand to the court below for a suppression hearing with the appellant and his counsel present. See United States v. Hurse, 453 F.2d 128 (8th Cir. 1972). If the motion to suppress is denied the appellant will have the right to appeal the Judgment of Sentence, otherwise it will be vacated.

Case remanded for proceedings consistent with this Opinion, with jurisdiction over the case relinquished by this Court.

      . The other issues raised by the appellant, i. e., the lack of probable cause to justify his arrest and the suggestiveness of the on-the-scene identification, need not be reviewed, given the result reached on the suppression claim.

      . This is contra the suppression court’s determination, in its “FINDINGS OF FACT,” that the eyewitness “identified the occupants [of the vehicle] as those being the ones at 21st and Ash Streets.” (Record No. 6, Point 5) Consequently, the court’s holding, in its “CONCLUSIONS OF LAW,” that “the identification of the two defendants” occurred at the on-the-scene identification is rather tenuous. (Record No. 6, at 2); see also Commonwealth v. Webb, 491 Pa. 329, 421 A.2d 161 (1980).

      . See generally Commonwealth v. Daniels, 288 Pa.Super. 69, 75, 431 A.2d 291, 295 (1981) (POPOVICH, J., Dissenting Opinion); Commonwealth v. Laudenslager, 259 Pa.Super. 118, 122-126, 393 A.2d 745, 747-749 (1978) (HOFFMAN, J., Dissenting Opinion, joined in part by JACOBS and SPAETH, JJ.); but see Wilcox v. United States, 425 F.Supp. 895 (D.Conn.1975); State v. Sanders, 539 S.W.2d 458 (Mo. Ct.App. 1976); State v. Williams, 19 Ohio App.2d 234, 250 N.E.2d 907 (1969).

      . It is to be noted that the court-appointed attorney for appellant’s co-defendant, Anthony Paul, remained silent on this subject.

      . This also holds true for appellant’s co-defendant.

      . Procedurally, we observe that the issue raised is cognizable on appeal, inasmuch as this is the first occasion that appellant has been represented by counsel other than whose stewardship is being challenged. Commonwealth v. Tolbert, 246 Pa.Super. 23, 25 n.4, 369 A.2d 791, 792 n.4 (1977); Commonwealth v. Graves, infra.

      . Appellant states in his brief to this Court that if he had appeared at the hearing, he would have testified to the suggestive nature of the on-the-scene identification. (Appellant’s Brief at 27) At trial, appellant “did not testify at all because of his counsel’s reasonable apprehension that evidence of his prior conviction would [have] weigh[ed] more heavily with the jury than any testimony he would [have] give[n].” Id. at 26-27. Also, it should be mentioned that the eyewitness did indicate in his testimony at trial that he could not identify the appellant by his physical characteristics, but felt appellant was a participant in the crime because of the vehicle he was standing next to when the police were detaining him, and the clothing he was wearing. However, the maroon slacks the witness described as being worn by one of the assailants did not match what the appellant was wearing (orange) on the evening of his arrest. As for the victim, on the issue of identification, all he could recall at trial was that his assailants were black. (N.T. 3/12/80, at 12, 21 & 23)


text:
    437 A.2d 445
    COMMONWEALTH of Pennsylvania v. Anthony PAUL, Appellant.
    Superior Court of Pennsylvania.
    Argued May 1, 1981.
    Filed Nov. 20, 1981.

      Carmela Presogna, Assistant Public Defender, Erie, for appellant.
    Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before POPOVICH, MONTGOMERY and HOFFMAN, JJ.
   POPOVICH, Judge:

The appellant, Anthony Paul, was convicted in a jury trial of robbery and conspiracy. He appeals from the Judgments of Sentence, which consist of ten (10) to twenty (20) years for the former offense and two and one-half (2V2) to five (5) years, to be served concurrently, on the latter crime.

This case is the companion of Commonwealth v. McLaurin, 292 Pa.Super. 392, 437 A.2d 440, wherein we held that court-appointed counsel was ineffective for permitting the suppression hearing to be conducted in McLaurin’s absence. Factually, in McLaurin, counsel acknowledged on the record that he never asked his client to be in attendance at the hearing; this negated any inference that the accused “waived” his right to be present. Instantly, however, we cannot ascertain from the record whether appellant’s absence from the suppression hearing was a voluntary one, see Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1936), since his counsel failed to respond to the Commonwealth’s attorney’s remark at the close of the proceeding that appellant was not present and that he had “waived” his right to be there. (S.T. 3/3/80, at 40-41); see also Commonwealth v. McLaurin, supra, 292 Pa.Super. at 395 n. 4, 437 A.2d at 440 n. 4 (Slip Opinion at 4, n. 4). Thus, we remand for an evidentiary hearing on this issue. See, e. g., Commonwealth v. Cooke, 288 Pa.Super. 205, 431 A.2d 360 (1981); Commonwealth v. Turner, 218 Pa.Super. 173, 275 A.2d 694 (1971) (HOFFMAN, J., dissenting and MONTGOMERY, J., joined). If, at the hearing, the lower court finds that appellant’s absence was consensual, appellant will have the opportunity to appeal from such ruling, and raise any issue at such time that is cognizable. However, if it is determined that appellant did not appear because he was never informed of his right to do so, the appellant shall be afforded a new suppression hearing, and a new trial if needed. See Commonwealth v. McLaurin, supra.

Case remanded for proceedings consistent with this Opinion, with jurisdiction over the case relinquished by this Court.

      . Because appellant is represented on appeal by counsel from the same public defender’s office which represented him throughout the proceedings below, he has the option to retain said counsel. Before doing so, however, he would have to be advised of the dangers and possible disadvantages of proceeding with an attorney associated with counsel he asserts is ineffective. See Commonwealth v. Cooke, 205 Pa. Super. 288, 431 A.2d 360 (1981).


author: SHERTZ, Judge: SPAETH, Judge,

text:
    437 A.2d 446
    BLACK TOP PAVING COMPANY, INC., a Pennsylvania corporation, v. JOHN CARLO, INC., a Michigan Corporation and United States Fidelity and Guaranty Company, a Maryland Corporation.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1981.
    Filed Nov. 20, 1981.
    John P. Liekar, Jr., Canonsburg, for appellants.
    Lawrence R. Zewe, Washington, for appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SHERTZ, Judge:

This is an action in assumpsit which was tried non-jury and resulted in a verdict in favor of Appellee-plaintiff. Appellants filed exception and this appeal is from the Order dismissing those exceptions. No final judgment was entered.

Although neither party has raised the issue, this Court will, sua sponte, consider the appealability of an Order inasmuch as this is a matter which goes to the very jurisdiction of an appellate court to entertain an appeal. Karpe v. Stroudsburg, 290 Pa.Super. 559, 434 A.2d 1292 (1981). This Court has often stated than an appeal from an order dismissing exceptions is interlocutory and unappealable.

An order dismissing exceptions following a trial without jury is in the same category as an order refusing a new trial. It is interlocutory and unappealable. The appeal should not be filed and may not be entertained until a final judgment is entered.

Pennstan Supply, Inc. v. Hay, 283 Pa.Super.Ct. 558, 424 A.2d 950, 951 (1981) (footnote omitted). See also Karpe, supra; Sun Oil Company of Pennsylvania v. Banghart, 289 Pa.Super.Ct. 187, 432 A.2d 1115 (1981).

Appeal quashed.

SPAETH, J., filed a concurring statement.

SPAETH, Judge,

concurring:

I write only to emphasize my agreement with the majority’s invitation to the Rules Committee. At 447 n. 1. I hope the Committee will change not only the Comment, but the Rule itself. See Coren v. DiDomenico, 291 Pa.Superior Ct. 331, 334, 435 A.2d 1252, 1254 (1981) (SPAETH, J., dissenting) (1981).

      . Appeals are being taken to this Court, with increasing frequency, without entry of final judgment as required by Rule 1038, Pa.R.Civ.P. and Rule 301 Pa.R.App.P. We take this opportunity to invite the Rules Committee to add a Comment to Rule 1038, in which the unappealability of such an order is emphasized. The notice provided by such a Comment will hopefully avert the waste of time and effort, on the part of Bench and Bar alike, to say nothing of the effect on the parties, when an untimely appeal is filed.


author: MONTGOMERY, Judge:

text:
    437 A.2d 447
    ASSOCIATES OF PHILIPSBURG, Appellant, v. Edsel F. HURWITZ and Alfred B. Hurwitz, t/d/b/a Hurwitz Brothers, a Co-Partnership; Ilene R. Hurwitz, Francine A. Hurwitz, and Irwin H. Hurwitz, Individuals; Bronia Corporation, and McDonald’s Corporation.
    Superior Court of Pennsylvania.
    Argued May 1, 1981.
    Filed Nov. 20, 1981.

      Harold Gondelman, Pittsburgh, for appellant.
    Harvey E. Robins, Pittsburgh, for Hurwitz, appellees.
    Frederick J. Francis, Pittsburgh, for Bronia, appellee.
    Carl A. Belin, Jr., Clearfield, for McDonald’s, appellee.
    Before POPOVICH, MONTGOMERY and HOFFMAN, JJ.
   MONTGOMERY, Judge:

The Plaintiff-Appellant filed the instant appeal from a final order of the lower court which sustained preliminary objections in the nature of a demurrer and dismissed the Appellant’s Petition for Declaratory Judgment. The Appellant instituted this action to resolve rights concerning the use of an entranceway to certain properties owned and/or controlled by the various parties to this case.

The record shows that the Appellant, Associates of Philipsburg, is a general partnership which is the successor in title to certain property in Decatur Township, Clearfield County. At the time of the filing of this action, the Appellant had a shopping plaza on that property. The immediate predecessor in title to the Appellant’s property was an entity known as the Trustees of C.I. Mortgage Group (hereinafter referred to as “Trustees”). The Trustees had purchased the property on September 3, 1974 from the Appellee Hurwitz Brothers. The two individuals trading and doing business under that name were the Appellees Edsel F. and Alfred B. Hurwitz, apparently operating as a partnership. A little more than a year after the Trustees purchased the shopping plaza property from Hurwitz Brothers, both parties executed documents granting each other a right-of-way for entry to each property, from U.S. Route 322, over adjoining corners of land which each controlled along that road. At that time, on November 24, 1975, Hurwitz Brothers still retained property situated contiguous to and generally east of the property then owned by Trustees, and later owned by the Appellant. The pertinent sections of the November, 1975 agreement provided as follows:

1. The Parties hereto hereby mutually agree, one with the other, that each of the respective parties shall have a perpetual right to use the respective entranceways herein-before referred to and set out on the drawing hereinabove referred to which is attached to this Agreement. The respective rights to use both of said entranceways shall inure to the benefit of the successors in title and the respective agents, contractors, employees, lessees, business invitees, and business licensees and the customers of any business on the premises owned by the respective Parties; with full right of ingress and egress by pedestrians and vehicles relative to said entranceways.
It is understood and agreed by and between the Parties hereto that as of the date of the execution of this Agreement, the entranceway to the lands of the Parties of the First Part, outlined in green upon the attached map and being designated by the letter “D” is being utilized solely in connection with the operation of the shopping center of the Party of the Second Part on adjacent premises.
3. It is covenanted and agreed between the Parties hereto that if and in the event other lands of the Parties of the First Part located to the east and south of the shopping center of the Party of the Second Part are developed, that then and in that event the care and maintenance of the entranceway on the above described premises shall be the equal responsibility of the parties hereto; and they shall be liable severally for damages resulting from their own use of the entranceway.
4. This Agreement shall be bind upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the respective Parties hereto.

In February, 1979, Hurwitz Brothers conveyed a parcel of land comprising .371 acre to the Appellees, llene, Francine and Irwin Hurwitz, together with a right-of-way over the entranceway from U.S. Route 322 which had been the subject of the November, 1975 agreement between the Trustees and the Hurwitz Brothers. Subsequently, llene, Francine and Irwin Hurwitz leased the tract to Franchise Realty Interstate Corporation. By.an easement agreement.dated later in February, 1979, the Franchise Realty Interstate Corporation acquired from the Hurwitz Brothers a right-of-way over the entranceway which has been referred to above. Subsequently, Franchise Realty Interstate Corporation assigned all of its right and interest in the property to the McDonald’s Corporation, an Appellant herein.

In addition to the transactions described above, the Appellees llene, Francine and Irwin Hurwitz were conveyed a tract of land containing .588 acre from another Appellee, the Bronia Corporation. In consideration of that transfer, the Hurwitz Brothers conveyed to Bronia Corporation a right-of-way over the entrance way from Route 322 to adjacent property owned by the Bronia Corporation. The Bronia property was farther to the south and east than the properties belonging to the other parties. The transfer of the right-of-way from Hurwitz Brothers to Bronia Corporation and the conveyance of the small tract of land to llene, Francine and Irwin Hurwitz all took place in February, 1979. Later that year, in September, Bronia Corporation conveyed an additional 6.14 acre tract to llene, Francine and Irwin Hurwitz, while reserving unto itself in the deed a right-of-way extending from the right-of-way it acquired in the February transaction, through the property then being conveyed to llene, Francine and Irwin Hurwitz, to a roadway owned by Bronia Corporation located to the east of the 6.14 acre tract.

In view of the somewhat complex nature of these various transactions, it appears that it would be helpful and appropriate to summarize all of these facts and transactions in simpler form. In summary, Hurwitz Brothers and the Trustees owned neighboring properties and wished to give each other a right-of-way over corners of their adjoining land at an entranceway from U.S. Route 322. Thus, the Hurwitz Brothers conveyed a right-of-way over its entranceway to Route 322 to the Trustees in November, 1975, and simultaneously took in return a right-of-way over the Trustees’ contiguous entranceway. Hurwitz Brothers subsequently conveyed rights-of-way over the same entranceways in 1979 to llene, Francine and Irwin Hurwitz, the Bronia Corporation, and a predecessor in title of the McDonald’s Corporation. All of the latter, as well as the Hurwitz Brothers, were named as defendants in an action instituted by the Appellant, which had succeeded to the rights of the Trustees in the November, 1975 agreement.

The Appellant filed its action in December, 1979 seeking a declaration, from the Court, of its rights under the November, 1975 agreement between the Hurwitz Brothers and the Trustees. Appellant requested injunctive relief against the use of the right-of-way by various Appellees. Each of the Appellees subsequently filed preliminary objections in the nature of demurrers to the Appellant’s Petition. Following oral argument and the submission of briefs, the trial court issued a Memorandum and Order sustaining the preliminary objections.

In its original pleading, which was titled “Petition in Declaratory Judgment”, the Plaintiff-Appellant recited the various property transactions explained above, and averred that the various Appellees would utilize the common right-of-way over the entranceway in question, in derogation of its own rights in the entranceway. More specifically, the Appellant alleged that the use of the entranceway by the Appellees, “. . . will create an undue and burdensome use of the common right-of-way of Plaintiff’s (sic), which usage was to be specifically limited to ingress to the shopping center presently occupied and managed by the Plaintiff’s (sic) and its agents”. The Appellant further alleged that various Appellees intended to develop additional areas of their property, which would also cause utilization of the entranceway in a manner inconsistent with the rights of the Appellant. The Appellant also noted in its Petition that the failure of the Appellees to differentiate between rights-of-way granted to each of them and the common right-of-way enjoyed by the Appellant, was inconsistent with its rights as established by the November, 1975 agreement.

On this appeal, the Appellant contends that the Hurwitz Brothers could not extend the use of the easement, or right-of-way over the entranceway to benefit non-contiguous property which they or their successors had either assigned or subsequently acquired. Further, the Appellant argues that a party who is not signatory to the original easement agreement may not be granted a right to utilize the entranceway which was the subject of the original agreement, when such utilization “. . . effects (sic) the free right of passage over and across the said easement by the remaining signatory and creates an unreasonable burden of use on the entranceways.” Finally, the Appellant argues that the trial court should have afforded it an opportunity to amend its pleading.

The trial court thoroughly reviewed all of the relevant provisions of the agreements in issue in the case, as well as the applicable law. In particular, the court scrutinized the provisions of the critical agreement of November, 1975, between Hurwitz Brothers and the Associates. The Court noted that in Section 1 of that agreement, it was provided that the benefits of the agreement would extend to the successors-in-title, agents, contractors, employees, lessees, business invitees and business licensees of the parties. Section 4 of the agreement extended the benefits to the heirs, executors, administrators, successors and assigns of the parties. Moreover, the following was specifically set forth in Section 3 of the agreement:

“In the event other lands of the parties of the first part (Hurwitz Brothers) located to the east and south of the shopping center of the party of the second part (Trustees of C.I. Mortgage Group) are developed...”

From all of these provisions, it appeared to the lower court that the parties anticipated further development of the property then owned by the Hurwitz Brothers, and also contemplated the extension of all of the benefits of the agreement to successors in title of the parties, as well as others. We not only agree with such findings by the lower court, but believe they are mandated by any fair analysis of the agreement in issue. Thus, it is clear that the Appellee Hurwitz Brothers was not precluded from making subsequent grants of rights of use of the easement which the partnership enjoyed by virtue of the November, 1975 agreement.

We next examine the propriety of the later grants of rights-of-way by the Hurwitz Brothers over their own property situated in the entranceway. It is clear that the owners of land subject to a right-of-way may grant to another or to others a similar right-of-way, provided that the prior grant was not intended to be exclusive. Puleo v. Bearoff, 376 Pa. 489, 103 A.2d 759 (1954). It is obvious that the November, 1975 original easement agreement did not contain any provision evidencing an intent that it was to be exclusive. Further, it did not in any way restrict the use by either party. See Nallin-Jennings Park Co. v. Sterling, 364 Pa. 611, 73 A.2d 390 (1950). Applicable law establishes that an owner of land who grants a right-of-way over it conveys nothing but the right of passage and reserves all incidents of ownership which have not been granted; the grantor may make use of his land in any way that does not interfere substantially with the previously created easement. See Edwards v. Julian, 192 Pa.Superior Ct. 121, 159 A.2d 547 (1960), and cases cited therein. Thus, while the Hurwitz Brothers could lawfully grant later easements in the same property, a question may arise as to whether the grant of later easements created an excessive burden on the previously granted right-of-way.

The lower court recognized all of these legal concepts, but concluded that the Appellant had not averred sufficient facts in its Petition to indicate the nature or the extent of the burden which might be caused to it by the Appellees’ use of the critical entrance way. We agree with that assessment by the lower court. Simply put, the Appellant’s Petition merely alleged possible future burdensome use of the right-of-way by the Appellees. The Appellant’s Petition is filled with claims that the Appellees’ uses “will create” or “will be burdensome”, all consequences envisioned by the Appellee for the future. The Appellant did not allege a single incident of harm it had suffered in the past, or was then suffering, as of the date of the filing of its Petition. As such, it is clear that the Appellant, in that pleading, sought the court’s declaration of rights based upon presumed future happenings. We can find no error by the lower court in denying the Appellant’s request for relief, in such circumstances. No right of the Appellant had been violated in the completely lawful assignment of rights-of-way by the Hurwitz Brothers which had been described in the Appellant’s Petition. Thus, we find no error whatsoever in the lower court’s denial of declaratory relief in this case, or in its grant of the requested demurrer.

There remains the sole issue of whether Appellant should have been furnished an opportunity to file an amended pleading. The Appellees point out that the Appellant never took the opportunity to amend its pleading pursuant to Pennsylvania Rule of Civil Procedure 1028(c), which provides, in pertinent part: “A party may file an amended pleading as of course within ten (10) days after service of a copy of preliminary objections”. Further, the Appellees point out that in the event that an amendment is not timely made as permitted by Rule 1028(c), a party desiring amendment may still seek amendment thereafter, by motion to the court, pursuant to Pennsylvania Rule of Civil Procedure 1033. That Rule, in part, provides: “A party, either by filed consent of the adverse party or by leave of court, may at any time . . . amend his pleading”. The Appellees argue that the Appellant has availed itself of neither opportunity, has otherwise foregone seeking amendment in the lower court, and has not raised the issue until this appeal, and therefore has lost any right to amend its pleading.

We would be in agreement with the Appellees’ position concerning the subject of amendment were it not for the holding of the Pennsylvania Supreme Court in the case of Otto v. American Mutual Insurance Co., 482 Pa. 202, 393 A.2d 450 (1978). The Otto appeal had previously been decided by our Court in a decision reported at 241 Pa.Superior Ct. 423, 361 A.2d 815 (1976). In that case, our Court reviewed a lower court order which granted a defendant’s preliminary objections and dismissed a complaint. Like the Appellant here, the plaintiffs argued in Otto that the lower court had abused its discretion in dismissing their complaint without allowing them an opportunity to amend. We pointed out that the plaintiffs in Otto had made no attempt to amend their complaint in the lower court at any time, either with leave of court or with the consent of the defendant. We further noted that the plaintiffs raised the issue for the first time on appeal. In such circumstances, our Court held that the plaintiffs had waived the right to amend. In its decision on a subsequent appeal in the Otto case, the Supreme Court held otherwise and permitted the plaintiffs the opportunity to file an amended pleading. In doing so, it did not meet the issue of whether or not a waiver of the right to amendment had occurred. Rather, the Supreme Court declared that amendments should be permitted where there is any reasonable possibility that a successful amendment can be made so as to state a cause of action. The Court cited several cases, noting that there may be situations where it is clear that an amendment in order to state a cause of action would be impossible and to grant leave to amend would be futile.

It appears possible to us that the Plaintiff-Appellant in the instant case, especially after the passage of two years in the use of the entranceway in issue by the Appellees, may now be able to allege any actual interference or disturbance that has occurred with regard to its own easement rights in the entranceway. Thus, pursuant to the Supreme Court’s decision in Otto, we must vacate the lower court’s order of dismissal, remand this case to the trial court for further proceedings, and afford the Plaintiff an opportunity to offer any amendment to its pleading which it may deem appropriate.

Remanded to the Court of Common Pleas for further proceedings consistent with this Opinion. This Court does not retain jurisdiction.

      . An overburdening use of an easement may create a problem for one of the other parties enjoying the right-of-way, in which case a court may grant relief to the overburdened party. See for example, Piper v. Mowris, 466 Pa. 89, 351 A.2d 635 (1976) and Taylor v. Heffner, 359 Pa. 157, 58 A.2d 450 (1948).

      . Rather than to repeat such matters here, we refer the reader to the discussion on this point and opinions cited by the Supreme Court in its decision in the Otto case.


author: HOFFMAN, Judge:

text:
    437 A.2d 453
    Joseph E. BALUSH, Appellant v. BOROUGH OF NORRISTOWN.
    Superior Court of Pennsylvania.
    Argued April 7, 1981.
    Filed Nov. 20, 1981.

      Harold Rehfuss, Philadelphia, for appellant.
    John O’Rourke, Norristown, for appellee.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in dismissing his complaint upon appellee’s motion for judgment on the pleadings. We agree and, accordingly, reverse the order of the court below and remand for proceedings consistent with this opinion.

On May 24, 1979, appellant filed a complaint in trespass alleging that he suffered injuries while driving his automobile along a roadway which had been negligently maintained by appellee. Appellee subsequently moved for judgment on the pleadings on the ground that appellant’s complaint failed to state a cause of action because it contained no allegation that appellant had sustained medical expenses exceeding $750 as required by section 301(a)(5)(B) of the Pennsylvania No-fault Motor Vehicle Insurance Act, 40 Pa.C.S.A. § 1009.301(a)(5)(B) (the Act). The lower court granted appellee’s motion and dismissed the complaint. This appeal followed. Appellant argues first that the lower court should not have granted judgment on the pleadings because facts revealed in discovery showed that he had, indeed, incurred the requisite amount of medical expenses under the Act. We disagree. While it is true that a judgment on the pleadings may be entered “in cases which are so free from doubt that trial would clearly be a fruitless exercise,” Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967), a court’s consideration of such a motion is inherently limited to the well-pleaded facts, admissions, and documents properly attached to the pleadings.

[A motion for judgment on the pleadings] is in the nature of a demurrer; all of the opposing party’s well-pleaded allegations are viewed as true but only those facts specifically admitted by him may be considered against him. . . . Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is further circumscribed by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto.

Id., 423 Pa. at 378, 224 A.2d at 178 (emphasis added; footnote and citations omitted). See also Puleo v. Broad Street Hospital, 267 Pa. Superior Ct. 581, 584, 407 A.2d 394, 396 (1979); Bogojavlensky v. Logan, 181 Pa. Superior Ct. 312, 320, 124 A.2d 412, 416 (1956). “The pleadings in an action are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection, and an answer thereto.” Pa.R.Civ.P. 1017(a) (made applicable to actions in trespass through Pa.R.Civ.P. 1041, 2 Goodrich-Amram 2d § 1041:4 (1976)). Consequently, appellant cannot rely upon facts revealed in his deposition or answers to interrogatories nor upon documents produced during discovery to defeat a motion for judgment on the pleadings. Bogojavlensky v. Logan, supra, 181 Pa. Super, at 320-21, 124 A.2d at 416-417 (cannot rely upon depositions); 2 Goodrich-Amram 2d, supra § 1034(a) :1. As the lower court properly observed in its opinion, appellant’s “[cjomplaint does not allege that he has [met] or will meet the minimum threshold necessary in order to bring a suit for pain and suffering” under the Act. Opinion of the Lower Court at 1-2.

Appellant argues also that the lower court should not have dismissed his complaint because his failure to plead the $750 no-fault threshold was a technical defect which could be cured by an amendment to his complaint. We agree. “If the essential elements of a plaintiff’s case or a defendant’s defense are not pleaded or are admitted the court should, if the defect is clear and not amendable, enter the appropriate judgment.” Bogojavlensky v. Logan, supra, 181 Pa.Super. at 320, 124 A.2d at 416. However, “if there is a defect in the pleading which could be cured by amendment the judgment [on the pleadings] should not be entered without affording an opportunity to amend.” Id., 181 Pa.Super. at 317, 124 A.2d at 415. “[W]hile the right to amend pleadings is ordinarily a matter resting in the sound discretion of the trial court, amendments should be allowed with great liberality at any stage of the case, unless, of course, they violate the law or prejudice the rights of the opposing party.” Puleo v. Broad Street Hospital, supra, 267 Pa.Super. at 584, 407 A.2d at 396, quoting Arzinger v. Baughman, 348 Pa. 84, 86, 34 A.2d 64, 65 (1943). In Puleo, this Court reversed a judgment on the pleadings and remanded to allow a plaintiff to amend his complaint to plead facts which would remove the bar of the statute of limitations. 267 Pa. Superior Ct. at 584, 407 A.2d at 396. Cf. Hillbrook Apartments, Inc. v. Nyce Crete Co., 237 Pa. Superior Ct. 565, 574-576, 352 A.2d 148, 153-54 (1975) (judgment on pleadings reversed and appellant allowed to amend complaint to allege that it was real party in interest). Here, as in Puleo, appellant filed a timely petition for reconsideration alleging facts which would cure the defect in his complaint. Appellee would suffer no prejudice by allowing appellant to amend his complaint because facts substantiating the omitted allegation had been disclosed during discovery which preceded appellee’s motion for judgment on the pleadings. See Puleo v. Broad Street Hospital, supra 267 Pa. Super, at 584, 407 A.2d at 396, citing Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 380-81, 293 A.2d 343, 356-57 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973). Allowing appellant to amend his complaint is particularly appropriate here considering the unsettled state-of-the-law concerning pleading of the no-fault threshold before our en banc decision in Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981) (holding that the statute of limitations begins to run when the plaintiff knows or in the exercise of reasonable diligence should have known that he has reached one of the thresholds of section 301(a) of the Act). Accordingly, we conclude that the lower court should not have entered judgment on the pleadings without allowing appellant the opportunity to amend his complaint. “If it should appear, either on motion for summary judgment or at trial, that appellant did not [satisfy any of the thresholds contained in the Act], the action should be held barred. Otherwise, it should be held to lie.” Id., 292 Pa.Super. at 215, 437 A.2d at 12. Cf. Giannini v. Carden, 286 Pa. Super. 450, 429 A.2d 24 (1981) (summary judgments properly granted when facts clearly demonstrated that no-fault threshold had not been met).

Order reversed and case remanded for proceedings consistent with this opinion.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I.

      . After filing a notice of appeal, appellant filed a timely petition for reconsideration alleging that any defect in his complaint could be cured by amendment. See Pa.R.A.P. 1701(b)(3) (permitting overlapping appeals and petitions for reconsideration). Although the lower court entered a rule to show cause allowing the parties to be heard on appellant’s petition for reconsideration, the record before us reveals no other action by the lower court within the thirty day appeal period, Pa.R.A.P. 903(a). Accordingly, the appeal is properly before us. See Hook v. Athens Area School Dist., 50 Pa. Commonwealth Ct. 420, 423, 413 A.2d 1151, 1153 (1980). See also Puleo v. Broad Street Hospital, 267 Pa. Superior Ct. 581, 407 A.2d 394 (1979).

      . Because the lower court’s disposition of this case turned on the $750 no-fault threshold, 40 Pa.C.S.A. § 1009.301(a)(5)(B), our decision is likewise limited to consideration of whether appellant alleged a cause of action under that provision. We note, however, that appellant also alleged that he sustained “serious, grievous and permanent injuries ...” which may, in appropriate circumstances, constitute a sufficient basis for a cause of action under section 301(a)(5)(A) of the Act, 40 Pa.C.S.A. § 1009.301(a)(5)(A). See generally D. Shrager, The Pennsylvania No-fault Motor Vehicle Insurance Act, § 2:6.1 (1979).


author: PER CURIAM:

text:
    437 A.2d 746
    Daniel R. ROTHERMEL, Appellant, v. William B. McLAUGHLIN, M.D. and Suburban General Hospital.
    Superior Court of Pennsylvania.
    Argued April 15, 1980.
    Filed June 19, 1981.
    Reargument Denied Dec. 14, 1981.
    Ronald P. Koerner, Pittsburgh, for appellant.
    David R. Johnson, Pittsburgh, for McLaughlin, appellee.
    George M. Weis, Pittsburgh, did not file a brief on behalf of Suburban General, appellee.
    Before PRICE, HESTER and BROSKY, JJ.
   PER CURIAM:

This is an appeal from an Order of the Court of Common Pleas of Allegheny County denying appellant plaintiff’s motion for a new trial. The procedural history and facts relevant to the issues on appeal are as follows:

Appellant sustained comminuted fractures on both humeri and femora in addition to shock and multiple contusions as the result of an automobile collision which occurred on Ohio River Boulevard, June 12, 1974. He was taken to Suburban General Hospital where he became a patient of appellee, Dr. William B. McLaughlin, a Board certified orthopedic surgeon. He was transferred to St. Francis General Hospital in Pittsburgh on August 12, 1974.

Dr. McLaughlin treated the aforedescribed injuries by performing closed reductions on appellant’s humeri and treated the femora fractures with traction. Following his transfer to Saint Francis Hospital, appellant underwent numerous operations while a patient of Drs. Novak, Wissinger, Worrall and Leslie. Appellant instituted this malpractice suit against Dr. McLaughlin and Suburban General Hospital alleging that the doctor had caused permanent bilateral radial nerve palsy in his right hand and wrist by performing closed reductions on the humeri, and that the 2V2 inch shortening of his left leg was a result of the doctor’s failure to perform open reduction and rodding or nailing the femur during the two month period appellant was his patient.

Appellant’s expert medical witness Norton Hering, M.D., testified that the defendant physician was negligent in his treatment of appellant which he described as archaic and substandard and that appellant would not have had to be transferred to St. Francis Hospital if he had received proper care while a patient at Suburban General. Appellant’s treating physicians were called to establish the medical treatment he received after leaving Dr. McLaughlin’s care as well as to describe the extent and permanency of his injuries. Appellant’s counsel limited his direct examination of these witnesses so as to avoid the issue of causation. On cross-examination of one treating physician, Dr. Joseph Novak, defense counsel inquired as to whether shortening of the leg was a foreseeable consequence of a comminuted fracture of the femur. The trial court over objection permitted the witness to answer the question. The same procedure was followed as to the deposition of Y. T. Worrall, M.D., one of appellant’s treating physicians, who was deposed by appellant and who answered questions over objection as to causation on cross-examination. At trial, appellant asked the court to strike the cross-examination and when the court refused, appellant did not introduce the testimony. Appellee then introduced the deposition over objection in his own case. A compulsory non-suit was granted as to Suburban General Hospital and the jury verdict was in favor of appellee McLaughlin. This appeal followed the trial court’s denial of appellant’s motion for a new trial.

Appellant contends the trial court erred in permitting appellee’s counsel to cross-examine appellant’s treating physicians on the issue of causation when this was beyond the scope of direct examination.

Our Supreme Court has held that cross-examination must be germane to the direct examination unless the witness is one of the litigants. Woodland v. Philadelphia Transportation Company, 428 Pa. 379, 288 A.2d 593 (1968); cross-examination should have been limited to the scope of the direct. Appellee’s argument that the appellant failed to individuate the damages attributable to the alleged malpractice entitled him to inquire as to causation is meritless. McGuire v. Hamler Coal Mining Company, 355 Pa. 160, 49 A.2d 396 (1946). Our review of the record indicates appellant’s expert witness, Norton Hering, did testify that further treatment at St. Francis Hospital would have been unnecessary if appellant had received the proper medical care originally. Appellee could have called any of appellant’s treating physicians as defense witnesses. Instead, the cross-examination as to causation improperly permitted the appellee to elicit prejudicial defense testimony from appellant’s witnesses then argue that the testimony was elicited from appellant’s own witnesses. Stawczyk v. Ehrenreich, 191 Pa.Super. 195, 156 A.2d 371 (1959). Admission of the deposition testimony of V. T. Worrall with the improper cross-examination had the same effect because appellant had deposed Dr. Worrall prior to trial.

Accordingly, the order of the trial court is reversed and the case is remanded for a new trial as to appellee McLaughlin only.


author: BROSKY, Judge:

text:
    437 A.2d 748
    COMMONWEALTH of Pennsylvania, Appellant, v. Lavern BRANCH. COMMONWEALTH of Pennsylvania v. Lavern BRANCH, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1980.
    Filed Aug. 21, 1981.
    Petition for Allowance of Appeal Denied Oct. 6, 1981.

      Maxine Stotland, Assistant District Attorney, Philadelphia, for the Commonwealth.
    Joel W. Todd, Philadelphia, for Branch.
    Before CERCONE, President Judge, and CAVANAUGH, BROSKY, WICKERSHAM, WATKINS, HOFFMAN and VAN der VOORT, JJ.
   BROSKY, Judge:

Following a jury trial, Lavern Branch was convicted of third degree murder and weapons offenses. Timely post-verdict motions were filed alleging, inter alia: (1) the preliminary hearing court erred in ruling that a prima facie case had been offered where the evidence introduced by the prosecution, and admitted over objection, was hearsay; (2) the suppression hearing court erred in vacating its order directing the suppression of Branch’s inculpatory statement and reopening the hearing to permit the Commonwealth an opportunity to offer additional evidence; and, (3) the prosecutor’s closing argument to the jury amounted to prosecutorial misconduct.

The trial court, accepting appellee’s first contention of error, ruled that, excluding the use of hearsay testimony, a prima facie case had not been established at the preliminary hearing. On that, basis, it granted Branch a new trial and ordered him discharged subject to rearrest. Both parties appealed that determination to the Supreme Court, the Commonwealth from discharge and Branch from the denial of those additional grounds presented in his post-verdict motions. This appeal is before us by way of a special transfer from the Supreme Court.

The relevant procedural history of the case may be summarized as follows: On May 11, 1977, Branch was arrested in connection with the shooting death of Quinzell Carroll which had occurred earlier that day at a Philadelphia playground. At the preliminary hearing on May 25, 1977, it was stipulated that the decedent’s death had been caused by gunshot wounds. Also presented at that time was testimony by a police officer of a confession purportedly obtained from Branch, wherein he admitted firing a weapon at individuals playing basketball. That witness—the police officer who had obtained Branch’s statement—further testified, over objection, that the decedent’s brother had witnessed Branch shoot the victim, though the decedent’s brother did not testify at the preliminary hearing, the Commonwealth represented that he would be available at the time of trial. Concluding that a prima facie case had been established, the hearing judge ordered Branch held for court.

A motion to suppress that statement was subsequently filed. Following hearing, the motion was granted upon the court’s finding that though the confession had been voluntarily rendered, it was the product of an arrest made without probable cause.

The trial court determined the witnesses used by the Commonwealth, Officers Martin and Garvey, to prove the existence of probable cause, had not testified in a manner which connected the appellant with statements made by Broderick Carroll which indicated Branch had committed a crime. Thus, hearsay identification testimony presented at the preliminary hearing appeared not to connect Branch with the incident. However, three days later, following application by the Commonwealth, the suppression hearing court issued an order vacating its earlier findings of fact and conclusions of law and directed a rehearing on the motion to suppress. The Commonwealth submitted additional testimony given by the two police officers that they saw Carroll point toward Branch and state: “That’s him. That’s the one who shot my brother.” The hearing court subsequently issued amended findings of fact and conclusions of law, wherein the arrest was found to be based upon probable cause and Branch’s confession to have been voluntarily, knowingly and intelligently made. Accordingly, the motion to suppress was denied.

Appellant contends the lower court erred in its granting of a new trial because hearsay evidence was admitted. However, hearsay evidence was sufficient to establish a prima facie case at the preliminary hearing. In Commonwealth v. Rick, 244 Pa.Super. 33, 366 A.2d 302 (1976), wherein appellant was charged with driving while under the influence of intoxicating liquor, this court allowed the introduction into evidence, at the preliminary hearing, of hearsay evidence in the form of a chemist’s report indicating appellant’s blood-alcohol level.

Instantly, while the lower court acknowledged our holding in that case, it believed the decision to be in error and chose not to apply it. However, since Rick is clearly dispositive of this case, we are bound to conclude that the hearsay evidence was properly admitted at the preliminary hearing.

Our research has failed to reveal any reported Pennsylvania appellate court decision concerning the propriety of a court’s reopening of a suppression hearing. However, for the reasons which follow, we are of the opinion that the trial court acted properly and within its discretion in doing so.

It is, of course, well settled that until a verdict has been rendered in a non-jury trial, it is within the discretion of the trial judge to allow either side to reopen its case to prevent a “failure or miscarriage of justice.” Commonwealth v. Ridgely, 243 Pa.Super. 397, 365 A.2d 1283 (1976). While we hold firmly to the concept of finality, we believe that under the present circumstances the basic distinction between a suppression matter and an ultimate verdict of guilty or innocence dictates different treatment. A verdict, once entered, constitutes the final determination in a criminal proceeding. Thus, though the trial court may take necessary remedial action when acting upon post-verdict motions, it may not permit either party to present additional evidence following the rendering of the verdict.

A suppression hearing, on the other hand, is a pretrial proceeding for determining the later admissibility of certain evidence at trial. Consistent with this view that a suppression determination is subject to different guidelines concerning finality, this court has, in the interest of justice, permitted the reopening of a suppression hearing record in order to permit the introduction of evidence inadvertently omitted by the prosecution. See Commonwealth v. Ferguson, 231 Pa. Super. 327, 331 A.2d 856 (1974).

The rule pertaining to the pretrial suppression of evidence, provides, in part, that “[i]f the court determines that the evidence shall not be suppressed, such determination shall be final, conclusive and binding at trial, except upon a showing of evidence which was theretofore unavailable ...” Pa.R.Crim.P. 323(j) (emphasis added). That rule, we believe, was intended to preclude a trial court from redetermining, upon the same evidence, a suppression matter previously decided by the suppression court. Its language does not, however, suggest a suppression court itself is to be precluded from reopening a hearing to receive additional testimony.

In the absence of any authority to the contrary, we are of the opinion that the suppression court’s reopening of the hearing, receipt of additional testimony and issuance of amended conclusions of law were proper exercises of its discretion.

Branch asserts that the trial court erred in its determination regarding prosecutorial misconduct on two grounds. First, he claims factual misstatements made by the Commonwealth in closing argument before the jury require an order for a new trial. Second, Branch remonstrates that remarks made by the prosecution in closing argument before the jury were prejudicial and constitute grounds for a new trial.

The initial misstatement made by the prosecutor was that one policeman had received information from Branch where in fact that policeman got his information from another officer who had spoken to Branch. This misstatement is clearly not grounds for a new trial, Commonwealth v. Wright, 456 Pa. 511, 321 A.2d 625 (1974); Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1975), particularly when viewed in light of the court’s admonishing remarks to the jury that they were to reach their decision based upon the facts as they recalled them.

Branch also finds error in the prosecutor’s statements referring to a police witness’ testimony about the “six-hour rule.” Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Specifically, he contends the prosecutor erred because the rule did not come into effect until May 16, 1977 and stated it applied only to cases in which the arrest occurred after that date. This was clearly not sufficient error to warrant a new trial. Id., 471 Pa. at 286-287, fn.11, 370 A.2d 306, fn.11. Whatever error may have occurred was appropriately tempered by the court’s proclamation to the jury that it was bound by the court’s recitation of the law, not the Commonwealth’s.

Finally, Branch asserts that the prosecutor made prejudicial remarks to the jury when he stated:

My client, the victim, Quinzell Carroll has his rights too. And his rights are that justice must be done. And you have the obligation to listen to the evidence and the instructions of law that the Court will give you. And there is no judge that will give clearer instructions of law. And when you look and consider and listen and deliberate through the amount of evidence from the beginning to the end, can you honestly say not only whether or not there is a reasonable doubt, because a reasonable doubt means a doubt based on reason, not fancy, not because you don’t like Broderick Carroll—may be I don’t like him either— but not because of that—but it has to be based on the evidence, can you have a reasonable doubt on that, or can you possibly even find no doubt whatsoever with your four eyewitnesses, your statement, the casings, the photograph, the chronology, the testimony of the detective all of it ?
So right now, ladies and gentlemen, I’ll ask you for justice because I consider this—and the Commonwealth considers it, and all the people consider, this crime just as serious as any other first degree crime, if not more so. This man lived fifteen years.

Emphasis added.

It is improper for the prosecuting attorney to present “his or her personal opinion about a defendant’s guilt.” Commonwealth v. Evans, 479 Pa. 100, 102, 387 A.2d 854, 855 (1978). He must not be “vindictive” or attempt to arouse the jury’s “prejudices” Commonwealth v. Revty, 448 Pa. 512, 516, 295 A.2d 300, 302 (1972).

ABA standards relating to prosecutorial conduct recognize:

The prosecutor is both an administrator of justice and an advocate; he must exercise sound discretion in the performance of his function,

at § 1.1(b); see also id. § 5.8.

The Pennsylvania Supreme Court has interpreted the ABA standards in several opinions. We are satisfied that the prosecutorial comments were not sufficiently prejudicial to necessitate a new trial. Commonwealth v. Caesar, 478 Pa. 575, 387 A.2d 471 (1978). Commonwealth v. Evans, supra.

The trial court’s order granting appellant a new trial and discharging him is hereby reversed. Lower court’s order denying other post-verdict relief is affirmed. Case remanded to the trial court for imposition of sentence.

CERCONE, President Judge, and HOFFMAN, J., concur in result.

      . 18 Pa.C.S.A. Sections 2502(c), 907 and 908.

      . Branch’s counsel subsequently petitioned the court to quash the magistrate’s transcript on the basis that the use of hearsay evidence was insufficient to establish a prima facie case at the preliminary hearing. The motion was denied.

      . The Commonwealth’s petition alleged, in part, that:
      “3. If the record at the suppression hearing failed to establish that the witness saw the incident and thus was able to identify the perpetrator, this was solely due to inadvertence on the part of the Assistant District Attorney and does not accurately represent the true factual situation.
      4. In the interests of justice, the Commonwealth should be permitted to reopen the record to establish the facts concerning the witness’ knowledge of the incident.”

      . In Ferguson, the prosecution failed to introduce a warrant into evidence even though the Commonwealth was relying entirely upon evidence contained therein. On appeal, we remanded the matter to allow its formal introduction.

      . See Commonwealth v. Harmon, 469 Pa. 490, fn.11, 366 A.2d 895, fn.11 (1976).