text:
    453 A.2d 15
    COMMONWEALTH of Pennsylvania v. Larry D. YOGEL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 15, 1981.
    Filed Nov. 30, 1982.

      Anthony J. Beldecos, Philadelphia, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from the Order of the Court of Common Pleas, Criminal Division, of Montgomery County, by the defendant-appellant, Larry D. Vogel.

On August 19,1980, the appellant was cited by a Pennsylvania State Police trooper for driving an automobile with an expired inspection sticker on it. The appellant testified that he told the trooper that he had just brought the vehicle back from New Jersey and that it had been out of the state for more than thirty (30) days. The trooper testified that he only remembered being told that the automobile had recently been brought back from New Jersey.

Two issues are raised on appeal. First, the appellant contends that the Commonwealth is required to prove beyond a reasonable doubt that his vehicle had not been out of state for more than thirty days. Appellant’s second contention involves the fact that the opinion of the court below was written by a judge other than the one that rendered the decision finding him guilty of the offense.

Taking appellant’s second argument first, we note that the hearing judge who made the decision did not write the opinion in support of the decision which was submitted to our court.

Pa. Rules of Appellate Procedure 1925(a) provides as follows:

“(a) General Rule. Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order...” (Emphasis ours)

Where the issue involved is one purely of law, the fact that someone other than the hearing judge wrote the opinion would be of little significance. In the instant case, however, the lower court’s decision was founded solely on the defendant’s credibility because the defendant testified in his own defense and stated that he had returned the vehicle in question from the New Jersey shore where he had had it for more than thirty (30) days. The judge who authored the opinion stated therein that he had consulted with the hearing judge and had ascertained from him that he “did not believe the defendant’s story”. We find that the judge who saw and heard the witnesses and had the opportunity to observe their demeanor is the proper one to author an opinion in support of an order based solely upon the issue of credibility. However, because of our disposition of the other contention raised by the defendant we do not find it necessary to remand this case for an opinion by the hearing judge.

Defendant’s other contention to the effect that in order to prove a violation of 75 Pa.C.S.A. 4703 (Operating a motor vehicle without a valid official certificate of inspection) the Commonwealth must first prove that none of the exceptions to the general rule existed is rejected. The exceptions to 75 Pa.C.S.A. 4703(a) are intended to operate as affirmative defenses to the charge of operating a vehicle without a valid inspection certificate. As such an accused who desires to assert such a defense must present evidence that it applies to him. Thus, in order to sustain a conviction all the Commonwealth must prove is that the defendant operated a motor vehicle without a current inspection certificate and, if the defendant fails to offer evidence tending to prove that any of the exceptions exist, a conviction will be sustained. In the instant case, however, the defendant did in fact offer evidence indicating that his vehicle had been out of state for over thirty (30) days and that he was on his way to getting it inspected at the time of his arrest on August 19, 1980. The record also revealed that the vehicle was inspected later that day. Unfortunately the record also reveals that the defendant, acting as his own counsel during the lower court proceeding, failed to establish the date that he returned the vehicle from New Jersey. Assuming arguendo,. that everything the defendant said is true he still has not established all of the elements of his affirmative defense because he never established that five (5) days had not elapsed between the time he returned the vehicle to Pennsylvania and the date of his arrest. For that reason the instant case does not turn on the issue of credibility. Because the defendant has not submitted sufficient evidence tending to sustain his affirmative defense, we will affirm his conviction.

Order affirmed.

JOHNSON, J., concurs in the result.

      . 75 Pa.C.S.A. 4703(a) makes it illegal to operate a motor vehicle in Pennsylvania without a valid inspection certificate.

      . 75 Pa.C.S.A. 4703(c) provides that motor vehicles subject to inspection which have been outside Pennsylvania continuously for more than thirty (30) days must be inspected within five (5) days of reentering the Commonwealth if they do not bear a currently valid certificate of inspection.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    453 A.2d 17
    Dorothy Urban KOBA, Appellant, v. Walter KOBA.
    Superior Court of Pennsylvania.
    Submitted Nov. 9, 1981.
    Filed Nov. 30, 1982.
    James R. Cascio, Somerset, for appellant.
    Robert M. Keim, Somerset, for appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   PER CURIAM:

This is an appeal from an order of the Court of Common Pleas of Somerset County dismissing Dorothy Urban Koba’s exceptions to the findings of a master appointed to oversee the partition of property formerly held by appellant and appellee, her ex-husband, as tenants-by-the-entireties. The property was converted from a tenancy-by-the-entireties to a tenancy-in-common upon the divorce of the parties in 1978 by virtue of the Act of May 10, 1927, P.L. 884 § 1, as amended May 17, 1949, P.L. 1394 § 1, 68 P.S. § 501.

Appellant argues that the master erred in finding that no grounds existed to impose a constructive trust on certain property which was separately owned by her ex-husband. It was appellant’s contention that such a trust was merited as a credit for appellant’s contribution of her total earned income to the support of the family and appellee during the years of the parties’ co-habitation. Because appellant’s appeal is interlocutory in nature, we do not reach the merits of her argument.

Our determination that appellant’s appeal is interlocutory is dictated by this Court’s holding in Recktenwald v. Recktenwald, 284 Pa.Super. 185, 425 A.2d 765 (1981). In Recktenwald the ex-husband appealed the dismissal of his exceptions to a report filed by the master appointed to oversee the partition of the property held by him and his ex-wife. In language which is applicable to the case at hand, this Court in Recktenwald stated:

The chancellor’s order neither puts appellant out of court, nor does it finally decide the issue. The order must therefore be interlocutory in nature. Piltzer v. Independence Fed. Sav. & Loan Ass’n, 456 Pa. 402, 319 A.2d 677 (1973). It is axiomatic that an appeal will be only from a final order unless the Legislature otherwise provides. Caplan v. Keystone Weaving Mill, 431 Pa. 407, 246 A.2d 384 (1968). Appellant asserts no appeal as of right, Pa.R.A.P. 311, nor has he met any of the requirements for the permissible appeal of an interlocutory order, Pa.R.A.P. 312 and Pa.R.A.P. 1301 et seq. Id., 284 Pa.Superior Ct. at 192, 425 A.2d at 768.
Appeal quashed.


text:
    453 A.2d 18
    Wade G. SHEHADY and Wade G. Shehady, Jr., d/b/a Rack of Lamb Restaurant, Appellants, v. The PITTSBURGH POST-GAZETTE, A Corporation and Geoffrey Tomb, An individual.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1982.
    Filed Nov. 30, 1982.

      Donald W. Bebenek, Pittsburgh, for appellants.
    Eric P. Reif, Pittsburgh, for Post-Gazette, appellee.
    James C. Kuhn, Pittsburgh, Tomb, appellee.
    Before HESTER, BECK and VAN der YOORT, JJ.
   PER CURIAM:

On December 29, 1977, appellants Wade G. Shehady and Wade G. Shehady, Jr., individually and d/b/a Rack of Lamb Restaurant, filed an action in trespass against appellees Pittsburgh Post Gazette and Geoffrey Tomb, alleging the publication of a defamatory statement concerning appellants’ restaurant. Discovery proceeded from March 7, 1978, until the case was set for trial. Discovery was completed in October, 1980. On or about December 4, 1980, appellees filed a motion to compel the production of documents in advance of trial, which was denied. Jury selection began on December 8,1980. However, due to a death in the family of appellants’ attorney, the trial was continued until May, 1981.

On December 15,1980, counsel for the Post-Gazette directed a letter to appellants’ attorney requesting the production of detailed financial records concerning appellants’ restaurant. By letter of December 30, 1980, counsel for the Post-Gazette notified appellants’ counsel that he intended to present a motion to compel these financial records on January 8, 1981. At this time, appellants’ individual counsel of record was out of the City. However, an associate of the law firm representing appellants (whose name did not yet appear on the letterhead) wrote the following letter to counsel for the Post-Gazette:

“This letter is to confirm our conversation of January 8, 1981 wherein we agreed that plaintiffs had no objection to the motion to produce, provided we were given 30 days from January 8, 1981 to comply with the court’s order.”

On January 9,1981, Judge Farino of the Court of Common Pleas of Allegheny County executed an Order compelling appellants to make available for inspection and copying by counsel for the Post-Gazette the detailed financial records requested.

On March 6, 1981, Judge Wettick executed an Order requiring appellants to produce all of the documents encompassed by Judge Farino’s Order of January 9, 1981, on or before March 16, 1981. Subsequently, on March 27, 1981, Judge Wettick executed an Order “... that plaintiffs’ action be dismissed with prejudice unless there is full compliance with Judge Farino’s court order (with any modifications) within 5 days after decision on the petition to reconsider.”

On April 6, 1981, appellants presented a petition to Judge Farino requesting that he reconsider his previous Order of January 9, 1981, which was denied.

On April 14, 1981, counsel for appellees presented a motion to Judge Silvestri requesting that appellants’ complaint be dismissed, with prejudice, pursuant to Judge Wettick’s Order of March 27, 1981, as a result of the failure of appellants to comply with Judge Farino’s Order of January 9, 1981. The attorneys for the respective parties testified, under oath, concerning this matter. Counsel for appellees testified that the appellants had complied with the production of all documents set forth in the Order of January 9, 1981, with the exception of the restaurant’s 1980 tax return and the cash receipts journal, disbursement journal and general ledger for the Rack of Lamb Restaurant for the period of February, 1980 through December, 1980. Counsel for appellants testified that the tax return for 1980 had not yet been finalized (basically due to the fact that the federal government did not require it to be finalized until midnight of the following day) and that, due to the fact that the restaurant was a “family business”, the cash receipts journal, disbursement journal and general ledger for the Rack of Lamb Restaurant for the period of February, 1980 through December, 1980, had not yet been finally prepared or transcribed from the day-to-day check stubs, sales receipts, etc., of the business.

Following the testimony, Judge Silvestri concluded that there had been noncompliance with the prior orders of court. Accordingly, without further consideration, Judge Silvestri dismissed the complaint, with prejudice, as required by Judge Wettick’s Order of March 27, 1981.

On appeal, appellants contend that the lower court abused its discretion in dismissing the complaint, pursuant to Pennsylvania Rule of Civil Procedure 4019, with prejudice, for their failure to produce documents which did not exist at that time. Appellants argue that they substantially complied with the Order of January 9, 1981 by producing voluminous records of the business, including all tax returns through 1979 and all ledgers and journals which had been prepared through January, 1980. Appellees respond that, as a result of the 1978 Amendment to Pa.R.C.P. 4019, the moving party seeking sanctions is not required to prove a willful disregard or disobedience of a discovery order, only noncompliance. Compare Pompa v. Hojancki, 445 Pa. 42, 281 A.2d 886 (1971); Gonzales v. Procaccio Brothers Trucking Company, 268 Pa.Super. 245, 407 A.2d 1338 (1979). Under Pennsylvania Rule of Civil Procedure 4019(a)(l)(vii), sanctions may be imposed if “. .. a party, in response to a request for production or inspection made under Rule 4009, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested.” Thus, as a result of the Amendments to Pa.R.C.P. 4019, which became effective April 16, 1979, “There is no requirement today, as existed formerly, that the failure to obey be willful.” Verbalis v. Verbalis, 286 Pa.Super. 209, 211-12, 428 A.2d 646, 647 (1981).

We reverse.

As a result of the Amendments to Pa.R.C.P. 4019(a), which deleted the word “willfully”, “the court may impose sanctions even if the failure is not willful. Willfulness of course may be a factor in determining the extent of the sanction but it will not be an essential condition precedent to the power to impose a sanction.” (Explanatory Note—1978 to Pa.R.C.P. to 4019).

To some extent, a party’s attempt to comply, in good faith, with the discovery rules or a discovery order is a factor to be considered under Rule 4019. Royster, supra, 294 Pa.Superior at 168-69, 439 A.2d at 804-5; Lewis v. Reid, 244 Pa.Super. 76, 366 A.2d 923, 928 (1976); Gill v. McGraw Electric Company, 264 Pa.Super. 368, 399 A.2d 1095, 1102 (1979). Also, the extent to which the moving party has been prejudiced by the failure to produce must be considered in formulating an appropriate sanction order. Gill, supra, 264 Pa. Superior Ct. 382, 399 A.2d at 1102; Nowosielski v. Kryzosiak, 280 Pa.Super. 243, 247, 421 A.2d 703, 705 (1980).

“Judgment of non pros is a severe penalty and should not be lightly entered.” Verbalis, supra, 286 Pa.Superior Ct. 211, 428 A.2d at 647; Gonzales, supra, 268 Pa.Superior Ct. 251-53, 407 A.2d at 1341.

The lower court’s order of April 14,1981, merely concludes that appellants did not comply with the order of January 9, 1981. Judge Silvestri concluded that he was “... merely enforcing the order of Judge Wettick, which provides for automatic dismissal.” Judge Wettick, in turn, was merely enforcing the previous order of Judge Farino.

Due to the fact that the lower court did not consider the factors enumerated in this Opinion in determining what sanction should be imposed upon appellants, we reverse and remand to the jurisdiction of the lower court for further proceedings consistent with this Opinion.

We also note our understanding with the three trial judges who participated in this matter. Judge Wettick and Judge Silvestri properly deferred to the prior orders of their colleagues. However, the fact that appellants were never given an opportunity to object to the relevancy of the discovery or the burden and expense of producing the documents must also be considered as a factor in determining whether appellants attempted to comply, in good faith, with the order of January 9, 1981.

Reversed and remanded to the jurisdiction of the lower court for further proceedings consistent with this Opinion.

      . Judge Silvestri concluded that he did not have “... the authority to revoke or modify ...” Judge Wettick’s Order of March 27, 1981. He, therefore, “... enforced it by dismissing the plaintiffs’ action.” Judge Silvestri stated “I could forgive the non-production of the final tax return. I cannot forgive the daily sheets and disbursements.” At the hearing on April 14, 1981, in attempting to explain why the requested documents had not yet been transcribed, counsel for appellants explained that these records were normally prepared by the wife of Wade G. Shehady, Jr. and that, as a result of a domestic problem, the wife had not prepared the record for the period of February, 1980 through December, 1980. Judge Silvestri concluded that appellants should have produced whatever record was in existence concerning the receipts and disbursements of the business, even if a journal or ledger had not actually been prepared. We note, however, that there is other support in the record td the effect that these records were previously prepared by the wife of Wade G. Shehady, Jr., including the deposition of Mr. Shehady. The fact that Mr. Shehady’s wife prepared the ledger and the journal entries was also referred to in the letter of December 15, 1980 from counsel for the Post-Gazette, which requested the production of the documents at issue.

      . Appellants cite our recent decision in Royster v. McGowen Ford, Inc., 294 Pa.Super. 160, 439 A.2d 799 (1982), which concerned the timing of disclosure of expert witnesses and opinions prior to trial.

      . Pa.R.C.P. No. 4019(c) states that when, as in this case, a party has failed to comply with a court order issued pursuant to Pa.R.C.P. No. 4019(a), the court “may” impose sanctions against the non-complying party. Thus, the language of Rule 4019(c) is permissive, not obligatory. Furthermore, Pa.R.C.P. 4019(c)(5) provides that the court “may make such order with regard to the failure to make discovery as is just.” (Emphasis added). Therefore, under Rule 4019(c) the court is empowered to consider the equities of the case and, in its discretion, make any order it deems appropriate in the circumstances.

      . It is apparent from the record that Judge Wettick refused to question the underlying basis of Judge Farino’s Order of January 9, 1981. Judge Wettick’s Order of March 27, 1981 specifically refers appellants to Judge Farino for a reconsideration of his previous order of court. Due to the fact that there is no record of the proceedings before Judge Farino on January 9, 1981, or on April 6, 1981, and due to the fact that there is no record of any proceedings before Judge Wettick on March 6, 1981 and March 27, 1981, it is unclear whether appellants were required to produce the raw receipts and checks, rather than the finalized ledger and journals themselves, as Judge Silvestri concluded.

      . It is most unfortunate, that a death occurred in the family of appellants’ individual counsel. It is also unfortunate that appellants’ individual counsel was out of town when the order of January 9,1981 was entered. We note that appellees did not comply with Pa.R.C.P. 4009(b)(2), since they did not allow appellants 30 days to respond to the request for the production of documents contained in the letter of December 15, 1980, prior to the presentation of the order of court to Judge Farino on January 8, 1981. However, appellants never filed objections to the request for production of the documents, nor did appellants move for a protective order pursuant to Pa.R.C.P. 4012, presumably because Judge Farino would not reconsider the initial Order.


author: ROWLEY, Judge: WICKERSHAM, Judge,

text:
    453 A.2d 338
    COMMONWEALTH of Pennsylvania v. Mary Elaine ZENYUH, Appellant.
    Superior Court of Pennsylvania.
    Argued March 22, 1982.
    Filed Oct. 22, 1982.
    Reargument Denied Dec. 30, 1982.

      Arthur L. Goldberg, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   ROWLEY, Judge:

Appellant was convicted, after a jury trial, of involuntary manslaughter in connection with the stabbing death of her husband. Her post-trial motions were denied and on April 1, 1981, she was sentenced to not less than two years nor more than four years imprisonment. This direct appeal followed.

Appellant raises three issues on appeal: 1) Did the court err in refusing to admit the testimony of Barbara Hart as an expert witness on the subject of battered women?; 2) Did the Court err in refusing two of appellant’s requested points for charge?; and 3) Was the evidence insufficient to support the conviction because the Commonwealth failed to prove beyond a reasonable doubt that appellant was not acting in self-defense?

We find appellant’s third argument to have merit and therefore need not discuss the other two issues raised in this appeal.

The record in this case reveals the following. The appellant and Mr. Zenyuh dated for six years and had been married approximately one year when the stabbing occurred. Their relationship was marked by frequent arguments, during which Mr. Zenyuh often beat appellant. After several of these beatings, appellant sought treatment at a hospital emergency room. The hospital records were introduced into evidence. It was also necessary for her to seek medical treatment for injuries to her ear and to her eye, both of which resulted from beatings by her husband. Letters from the doctors treating those injuries were introduced. Appellant testified that her húsband had threatened to kill her if she ever left him.

On the date of the stabbing, appellant and her husband began arguing early in the evening. At about 9:00 PM, appellant and her husband went to a lounge in Dauphin County to meet Mr. Zenyuh’s brother, Greg, and Greg’s girlfriend Nancy. The purpose of the gathering was to celebrate the Zenyuh’s coming wedding anniversary. Both appellant and her husband were drinking that night. Tests showed appellant’s blood alcohol level to be .13 and her husband’s to be .17. At first the evening was pleasant. However, an argument developed. Appellant asked her husband for the keys to her car so that she could leave. Mr. Zenyuh refused to give her the keys. When they did leave, appellant testified that her husband began to hit and kick her. Pictures taken a few days later while appellant was in jail showed bruises on her legs, arms and neck. The hitting continued in the car. Appellant retaliated by pulling her husband’s hair. When they arrived at the house, appellant told her husband she was leaving him and again asked for her keys. Mr. Zenyuh again refused. Appellant entered the house and began looking for her extra set of keys. While she was looking in the kitchen, her husband entered the room. Appellant testified that he was in a rage and she believed that he was at least going to beat her, and possibly would kill her. She picked up a kitchen knife. Mr. Zenyuh came at her and grabbed her arms. A struggle began, during which Mr. Zenyuh was cut or stabbed several times. He then left the house and went next door to seek help. Mr. Zenyuh later died from his injuries.

The above recited facts clearly raised the defense of self-defense. In addition to that evidence, appellant also presented the testimony of a psychiatrist, Dr. John Hume. It was Dr. Hume’s expert opinion that at the time of the stabbing, appellant reasonably believed that she was in imminent danger of death or great bodily harm.

The burden is on the Commonwealth to prove beyond a reasonable doubt that a defendant claiming self-defense did not so act. Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977); Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975). The Commonwealth sustains its burden if it proves any one of the following elements: (1) that the defendant did not reasonably believe she was in danger of death or serious bodily injury, (2) that the defendant provoked the use of force, or (3) that the defendant had a duty to retreat and that retreat was possible with complete safety. Commonwealth v. Helm, 485 Pa. 315, 321, 402 A.2d 500, 503 (1979).

As was stated in the trial court’s opinion, the Commonwealth did not contend that appellant had any duty to retreat. Therefore, we must determine if the Commonwealth proved that appellant’s belief that she was in danger was not reasonable or that she provoked the use of force.

The Commonwealth argues that appellant’s belief that she was in danger was not reasonable, because the decedent did not have a weapon and there was no evidence that the decedent was beating appellant at the time of the slaying. However, it has been held that in a case in which there has been physical abuse over a long period of time, the circumstances which assist the court in determining the reasonableness of defendant’s fear at the time of a killing include the defendant’s familiarity with the victim’s behavior in the past. Commonwealth v. Watson, 494 Pa. 467, 472, 431 A.2d 949, 952 (1981). In this case, appellant had been beaten by her husband many times over a six year period. There was also evidence that he had beaten her immediately prior to the stabbing and was still in a rage when the stabbing occurred. He had told her that if she ever tried to leave him, he would kill her. On the night of the stabbing, appellant was attempting to leave her husband. The fact that appellant was not being beaten at the exact moment she stabbed her husband does not prove beyond a reasonable doubt that her belief that she was in serious danger was unreasonable. In the Watson case, it was also held that the fact that the victim did not have a weapon was not sufficient to sustain a finding that it was unreasonable for the wife to believe that she was in imminent danger of death or great bodily harm. Commonwealth v. Watson, 494 Pa. at 472, 431 A.2d at 952.

The Commonwealth relies on the testimony of Gregory Zenyuh to prove that appellant provoked the use of force. Mr. Zenyuh’s testimony concerning how the argument began at the lounge was as follows:

“We were having a good time in the lounge and around a quarter to one, after we had a second round of shots, I commented to my fiance this would remind me when we would go out with some people in my office where I worked and how we would raise a large tab, around $100 to $120, because there were fifteen people with us and we would naturally be able to raise a $100 or so tab. Also, I would always drink a shot whenever we would go out with friends from work and the one instance was we drank Bacardi’s Rum 151. At that point, Mary Elaine told me there isn’t any Bacardi’s 151 and Eugene said they should know because he was at the place, and she turned to Eugene and said, well you never stick with me whether I’m right or wrong. And we—she started talking to my fiance stating, well, that, well you love your little sister and you’re never willing to say that I’m right. And it started to get to be a little bit of an argument. . . ”

Appellant’s part in the above exchange clearly did not constitute any type of provocation to the use of force against herself. Furthermore, Mr. Zenyuh admitted on cross-examination that he had no idea what occurred after appellant and her husband left the lounge.

It should be pointed out that Gregory Zenyuh’s testimony was entirely consistent with the story told by appellant. The same can be said of the testimony of the three officers who investigated the incident. Furthermore, Detective Sheaffer, who interviewed appellant shortly after the incident, testified that she told him that her husband had beaten her that night and also testified that she had a “black and bluish mark” underneath her eye.

The only other witnesses presented by the Commonwealth were appellant’s next door neighbor, who described the actions taken to aid the decedent, and a pathologist, who described the nature of the decedent’s wounds.

The only other evidence which the Commonwealth claims rebuts appellant’s defense was brought out during cross-examination of appellant. During cross-examination, appellant admitted that she drank often, that the arguments usually occurred when both parties had been drinking and that she tended to lose her temper when she drank. These facts are not sufficient to prove beyond a reasonable doubt that appellant did not act in self-defense.

In reviewing the sufficiency of the evidence to support a conviction, we must view that evidence in the light most favorable the verdict winner, which in this case is the Commonwealth. All reasonable inferences which may be drawn from the evidence must be drawn favorably to the verdict winner, Commonwealth v. Smith, 484 Pa. 71, 898 A.2d 948 (1979). Having so viewed the evidence, we con-elude that the Commonwealth has failed to sustain its burden of proving appellant’s guilt beyond a reasonable doubt.

The Judgment of Sentence is reversed and appellant is discharged.

WICKERSHAM, J., files a dissenting opinion.

WICKERSHAM, Judge,

dissenting:

I dissent.

Mrs. Zenyuh argues that at the time in question she reasonably believed her husband was about to kill her and that it was necessary to stab him in order to save herself. Mrs. Zenyuh asserts that this belief was based on her knowledge that 1) her husband had beaten her repeatedly throughout their relationship; 2) he had threatened to kill her if she left him and she had just announced her intention to leave; and 3) he was in a rage and had a certain look in his eyes which scared her.

No testimony was presented that the decedent had ever previously used deadly force against Mrs. Zenyuh. Although Mrs. Zenyuh testified that the decedent had threatened to kill her if she left him, this threat had occurred several years prior to the stabbing and there is no evidence that it was in any way an issue in the argument and altercation on the night in question. While the decedent may well have been enraged as he approached Mrs. Zenyuh, there is no evidence he intended to use deadly force against her.

It is true, as the majority asserts, that an assailant need not possess a weapon in order for his victim to reasonably fear he will suffer death or serious bodily injury, however, more is required to justify the use of deadly force in self-defense than an enraged and abusive perpetrator and a threat issued several years previously.

I would affirm the judgment of sentence.

      . See generally, Comment, The Battered Spouse Syndrome As A Defense To A Homicide Charge Under the Pennsylvania Crimes Code, 26 Vill.L.Rev. 105 (1980-1981).

      . I find no merit in appellant’s remaining issues on appeal.


author: ROWLEY, Judge:

text:
    453 A.2d 342
    Catherine PETRI, as Mother and Natural Guardian of the Minor, Kenneth Petri, Jr., and Catherine Petri, in her own right, Appellants, v. Dr. William SMITH and Winthrop Laboratories, Incorporated.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1982.
    Filed Oct. 22, 1982.
    Reargument Denied Dec. 30, 1982.
    Petition for Allowance of Appeal Denied May 16, 1983.

      Avram G. Adler, Philadelphia, for appellants.
    Charles B. Burr, Philadelphia, for Smith, appellee.
    Thomas J. Finarelli, Philadelphia, for Winthrop, appellee.
    Before WICKERSHAM, ROWLEY and MONTEMURO, JJ.
   ROWLEY, Judge:

This is an appeal from an order granting summary judgment in favor of the appellees in a medical malpractice action. Suit was filed in 1979 by Catherine Petri (appellant), in her own right and as the parent and natural guardian of Kenneth Petri, Jr., (Kenneth). Appellant asserted claims for damages against Dr. William Smith and Winthrop Laboratories, Inc., (appellees) as a result of their alleged negligence in connection with Kenneth’s birth in 1965. At the close of the pleadings in the case, Dr. Smith and Winthrop Laboratories, Inc., filed separate motions for summary judgment on the ground that the appellant’s suit was barred by the two year statute of limitations. In response, appellant raised the applicability of the “discovery rule” averring that it was not reasonably possible for her to have discovered the wrong done Kenneth until, 1977, and, thus, the applicable two year statute of limitations did not begin to run until then. Additionally, appellant made a constitutional claim averring that Pennsylvania’s statute of limitations in personal injury cases, which holds minors accountable equally with adults, was violative of the minor’s equal protection and due process rights. After considering appellant’s “discovery rule” argument, as well as her constitutional claim, the trial court rejected both of them and entered summary judgment in favor of the appellees. This appeal of that decision followed. We reverse.

Facts

Kenneth Petri, Jr. is the first-born child of Catherine and Kenneth Petri. He is currently seventeen years old, and has been mentally and physically retarded since birth. Presently, he remains unable to walk or talk, and suffers from abnormal reflexes, muscle tone and posture.

Kenneth was born, after a markedly difficult pregnancy, at Abington Memorial Hospital, Abington, Pennsylvania, on September 15, 1965, at 4:19 p.m. by way of a “frank breech presentation.” Dr. William Smith, one of the appellees, was his delivering obstetrician. During the course of her labor with Kenneth, appellant received two doses of a synthetic narcotic analgesic called demerol, a drug manufactured by the second appellee, Winthrop Laboratories, Inc. The liability of Dr. Smith in the instant case is premised on his negligence in delivering Kenneth. The liability of Winthrop Laboratories, Inc. is premised on its negligence in failing to adequately warn Dr. Smith of the dangers inherent in the use of demerol.

Within twenty-four (24) hours of Kenneth’s birth, appellant knew that all was not well with her newborn son. She was informed at some point during that period by Dr. John J. Shields, Kenneth’s pediatrician, that some “damage” could have been done to Kenneth. Specifically, at her deposition, she recalled Dr. Shields telling her at the hospital:

. . . that there could have been some damage done. The severity of it, the exact severity of it, they really didn’t know, they would take time to see it.

Later in her deposition, in response to another question concerning her conversations with Dr. Shields in the hospital, she replied in the following fashion:

He had just stated to me that time would tell and show. It was all up to time to see what would happen and he said these things happen. . .

During the years following Kenneth’s birth, Catherine Petri and her husband had three more children. She gave birth in 1967, 1970 and 1972 to three normal, healthy sons. Dr. Smith was not the attending obstetrician at any of those deliveries, although appellant did see him five times on a professional basis for post-natal care after Kenneth’s birth. In her deposition testimony, appellant stated that any concerns she may have had with respect to the hereditary aspect of Kenneth’s condition were assuaged by Dr. Shields’ assurances, and those of his associate, Dr. Ickler, that the minor appellant’s condition was “a one time thing, probably, never happen again.” When asked at her deposition whether she had ever sought, prior to the institution of the law suit, any other medical opinions as to the cause of Kenneth’s retardation, she replied:

No, just what the pediatrician said, they said things like this does [sic] happen, some children are born with heart defects, limbs missing and we just took it as it was.

When asked whether she had ever questioned Dr. Smith concerning her oldest son’s condition, she replied in the negative, stating:

No, I never asked him. I always thought that this is what happened, it was like an act of God and that was it. I never questioned him about it.

It was not until after a family reunion on Labor Day in 1977 that Catherine Petri first suspected that her son’s defects may have been the result of negligence. At that Labor Day reunion, appellant learned of litigation in another jurisdiction where the child involved suffered from a condition similar to that of her son’s. The information she received caused her to seek out legal counsel. With counsel’s help she obtained the hospital record, and eventually filed this suit some fourteen (14) years after Kenneth’s birth.

In response to the appellees’ contention that her suit was well beyond the applicable statute of limitations, appellant made two arguments to the trial court. Appellant’s first argument was that she was hindered from discovering the injury done her son by the impression which had formed in her mind that some act of God had occurred to cause her son’s defective condition. Furthermore, she contended that she was reasonable in forming such an impression, and in failing to investigate in more detail the possible causes of her son’s defects, in light of the conversations she had had with Drs. Shields and Ickler, and the difficult first-time pregnancy she had sustained. Consequently, she averred that her failure to bring timely suit was excused under the “discovery rule” exception to the statute of limitations’ bar, in that the injury done her son was not reasonably discoverable until 1977.

The trial court did not agree with the appellant’s reasoning with respect to her first argument. It held, as a matter of law, that appellant had not acted with reasonable diligence to protect her own and Kenneth’s interests, concluding that the “discovery rule” exception did not apply to the circumstances of her case and that she “had ample opportunity to seek and obtain competent legal and medical advice within the limitation period.” Her failure to seek that advice or to make any further investigation into Kenneth’s condition was, according to the trial court, unreasonable as a matter of law.

Appellant’s second argument concerned the constitutionality of the statute of limitations as applied in this case to bar Kenneth’s suit for damages sustained during his minority. It was her contention that it was a violation of Kenneth’s equal protection and due process rights to hold him bound equally with adults to prescribed statutory periods within which legal causes of action may be brought.

The trial court, likewise, did not agree with the appellant’s reasoning with respect to her second argument, finding no support for such a claim in the case law, and subsequently entered summary judgment in favor of the appellees.

On appeal, appellant assigned two grounds of error on the part of the trial court in granting summary judgment to the appellees:

I. The trial court erred “in deciding as a matter of law that educated parents have a higher duty than the reasonable man standard to disregard medical advice that the brain impaired child was an ‘Act of God’ so as to pursue legal action.”
II. The trial court erred “in refusing to declare judicial interpretation of the Pennsylvania Statute of Limitation for personal injury unconstitutional at least until the child reached majority”.

I.

Preliminary, we note that under Pa.R.C.P. 1035, summary judgment may only be entered where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978), “In addition, we are mindful that in considering a motion for summary judgment the court must examine the record in the light most favorable to the non-moving party; that the court’s function is not to decide issues of fact but merely to determine whether any such issues exist; and that all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party [citations omitted]”. Taylor v. Tukanowicz, 290 Pa. Super. 581, 586, 435 A.2d 181, 183 (1981).

The first ground of error proposed by the appellant asks us to consider the applicability of the “discovery rule” to the appellant’s case, and the alleged erroneous holding of the trial court wherein it was supposedly concluded that educated individuals are held to a higher standard than that of reasonableness when considering the applicability of the “discovery rule” exception to the statute of limitations’ bar. After carefully reviewing the record presented in the instant case and studying the language of the trial court’s opinion, we find no basis for appellant’s contention that the trial court’s holding dictated that educated individuals have a higher duty than that of the ordinary man. The education of the appellant was merely one factor the trial court considered in determining whether under the circumstances, appellant acted reasonably or unreasonably within the meaning of the “discovery rule”. Nevertheless, although we understand the rationale employed by the trial court, we do not agree with its conclusion that appellant’s failure to obtain knowledge of Kenneth’s injury was clearly unreasonable as a matter of law.

It is well established that an individual asserting a cause of action is required to use due diligence to properly inform himself or herself of the facts and circumstances upon which the claimed right of recovery is based and to institute suit within the period of the applicable statute of limitations. Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963). Once the prescribed statutory period has expired, the individual is barred from bringing suit, unless some exception which tolls the statute of limitations can be proven. One such exception is the “discovery rule” exception. The “discovery rule” exception is premised on the concept that where the existence of an injury is not apparent or where the existence of an injury cannot be reasonably ascertained, the statute of limitations does not begin to run until such time as the injury’s existence is known or discovered, or becomes knowable or discoverable by the exercise of reasonable diligence. Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959).

This question of the reasonableness of an individual’s conduct in attaining the appropriate level of knowledge, which must be had before the statute of limitation will start to run in a personal injury case, has been a source of much litigation since the “discovery rule” was enunciated in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). Recently, this Court in Stein v. The Washington Hospital, 302 Pa.Super. 124, 448 A.2d 558 (1982), filed July 16, 1982, addressed this question and stated:

The test by which the time at which a discovery is made is determined by the following standard which we recently discussed in Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 96-97, 425 A.2d 428, 436 (1981), reversed on other grounds 496 Pa. 119, 436 A.2d 181 (1981).
There has been some dispute or confusion, as to the exact level of knowledge a plaintiff must have before the statute of limitations will start to run. Judge Harry TARIFF of the Court of Common Pleas of Philadelphia has recently set forth an excellent statement of the rule, as follows:
Ayers’ progeny have struggled primarily with the question of reasonableness of plaintiff’s conduct in attaining the appropriate level of cognitive knowledge which ultimately prompts a timely lawsuit. With the question of “reasonableness” as a constant qualification running through the decisional law, the principle emerges that three independent phases of knowledge must be known or knowable to plaintiff before the limitation period commences: (1) knowledge of the injury; (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct. (302 Pa.Superior Ct. 124, 448 A.2d 558)

Taking the three independent phases of knowledge noted above, and applying them to this case, it becomes clear that the first phase, i.e., knowledge of the injury, was known to the appellant shortly after delivery. Catherine Petri knew within twenty-four (24) hours of Kenneth’s birth that some damage had been done to her newborn son. Although she was not immediately aware of the nature or the extent of the damage, it was obvious within the first two years that Kenneth was both physically and mentally retarded. It is also clear from the record that Catherine Petri knew, or should have known prior to 1977, about the appellees’ actions which she now alleges were the “operative causes” of Kenneth’s condition. In her complaint, she alleges that the “operative causes” were the failure to perform a cesarean section, the improper administration of drugs, and the failure of the drug company to give adequate warnings about the dangers inherent in the improper use of demerol. The record shows that Catherine knew that Kenneth was a breech baby and that his delivery had required that extra measures be employed, such as the use of forceps. She also was aware that a cesarean section had not been performed. Additionally, although she did not know the name of the drug which had been administered to her during her labor, she knew that she had requested that she be medicated during labor on one of her early office visits with Dr. Smith, and she indicated in her deposition that she recalled receiving medication at various times during the labor period. Consequently, the second phase of knowledge, i.e., knowledge of the operative cause or causes of the injury, was also known or knowable to the appellant shortly after Kenneth’s birth.

What is not clear from the record, however, is whether the third phase of knowledge, i.e., knowledge of the causative relationship between the injury and the operative conduct, was knowable to the appellant prior to 1977. It is the appellant’s contention that she did not know and had no reason to know the causal relationship between the injury to Kenneth and the occurrences during labor. This contention is not contradicted in the record and appellees do not argue that appellant was actually aware of the causal relationship she now alleges exists between Kenneth’s condition and their conduct until after September of 1977. However, the question remains whether this third phase of knowledge, although not known, was knowable to the appellant by the exercise of reasonable diligence prior to 1977. The trial court concluded that it was and dismissed her belief that Kenneth’s condition was “an act of God” as being unreasonable as a matter of law.

The standard of conduct to which appellant was required to conform for the protection of her own and Kenneth’s interests was one of “reasonable diligence”. What is or is not “reasonable” under the circumstances in this case requires an evaluation of appellant’s actions to determine whether she exhibited “those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others”. Restatement, Torts 2d, § 283, comment: b. The standard of reasonable diligence is an objective or external one that is the same for all individuals. It is not a subjective standard. It is a community standard. It is sufficiently flexible, however, to take into account differences between persons, their capacity to meet certain situations and the circumstances confronting them at the time in question. In short, the standard of conduct required is a uniform one which takes “into account the fallibility of human beings.” Restatement, Torts 2d, § 283, comment: b. and c. Our law recognizes that, usually, what that standard is may be best determined by the collective judgment, wisdom, and experience of jurors who have been selected at random from the community whose standard is to be applied.

There is no dispute in this case concerning what appellant did or failed to do following Kenneth’s birth and the discovery that “some damage had been done.” What is in dispute, however, is the appropriate standard of conduct required of appellant for the protection of her own and Kenneth’s interests. We cannot say that as a matter of law the appropriate standard of reasonable diligence required more of appellant in this case, nor can we say that it is dear that reasonable men could not differ as to what the appropriate standard required of her. A jury could conceivably conclude that her failure to investigate the possible causes of Kenneth’s condition until 1977 was reasonable, given her religious beliefs, her difficult pregnancy and her prior conversations with Kenneth’s pediatricians. The circumstances of appellant’s situation at the time of Kenneth’s birth do not unquestionably indicate that she was unreasonable as a matter of law in taking the course of action that she did.

We are aware of those recent medical malpractice personal injury cases where summary judgment was granted on the ground that, as a matter of law, the plaintiff acted unreasonably in failing to bring suit within the statutory period of limitation but we believe they are distinguishable from this case. Wallace v. Horvath, 283 Pa.Super. 179, 423 A.2d 1047 (1980) (plaintiff’s attempt to excuse untimely suit on a claim of non-discoverability of injury was unsupported where a timely suit had been filed in federal court only to be dismissed for want of jurisdiction); Keating v. Zemel, 281 Pa.Super. 129, 421 A.2d 1181 (1980) (plaintiff had necessary cognitive knowledge of the injury and the opportunity to learn identity of culpable party prior to running of statute of limitations); Bosworth v. Plummer, 510 F.Supp. 1027 (1981) (plaintiff, a medical supply sales representative, had sufficient knowledge of the circumstances surrounding daughter’s injury to initiate investigation into legal responsibility for injury prior to expiration of statutory period). Our review of the record convinces us that the case at hand is governed by those medical malpractice personal injury cases where the reasonableness of plaintiff’s actions in failing to discover the injury prior to the running of the period of limitation was found to be a jury question. Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) (statute of limitations did not begin to run against plaintiff until surgical sponge left in plaintiff’s stomach became physically objective and ascertainable); Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978) (non-discovery of cause of eye injury reasonable in light of physician’s assurance that vision would return); Grubb v. Albert Einstein Medical Center, 255 Pa. Super. 381, 387 A.2d 480 (1978) (late joinder of surgical instrument manufacturer not unreasonable as a matter of law in light of plaintiff’s physical paralysis); Barshady v. Schlosser, 226 Pa.Super. 260, 313 A.2d 296 (1973) (Hoffman, J. Opinion in Support of Reversal) (non-discovery of injury reasonable where physician concealed the injury from plaintiff); Greenberg v. McCabe, 453 F.Supp. 765 (1978) (proper for jury to consider whether nature of defendant’s conduct reasonably caused plaintiff’s non-discovery of his psychiatric malpractice). Therefore, we hold that the trial court erred in concluding that appellant acted unreasonably as a matter of law and in entering judgment for appellees.

II.

The second ground of error proposed by the appellant asks us to consider the constitutionality of Pennsylvania’s statute of limitations in personal injury cases where minors are concerned. The thrust of appellant’s argument is that the statute of limitations, which holds minors accountable equally with adults, violates a minor’s equal protection and due process rights. Appellant avers that although her right to file this action is properly a jury question, Kenneth’s right is not. She contends that, because Kenneth is less than eighteen years of age, under no circumstances should he be barred from bringing suit.

The merits of appellant’s constitutional arguments on this issue were recently discussed at length in DeSantis v. Yaw, 290 Pa.Super. 535, 434 A.2d 1273 (1981). Two members of this panel participated in that comprehensive and scholarly opinion, and their view seriously questioning the rationale of barring personal injury suits by minors on a statute of limitations basis is well expressed therein. As the DeSantis majority observed, however, the “settled rule” in Pennsylvania is that it is not violative of any constitutional rights to hold minors bound equally with adults to the prescribed statutory periods within which legal causes of action may be brought. This settled rule was most recently upheld by this Court in Stein v. The Washington Hospital, 302 Pa.Super. 124, 448 A.2d 558 (1982), wherein the Court en banc observed “we are ... obliged to hold that a child’s cause of action is barred by the statute of limitations when it is not timely filed ...” 302 Pa.Superior Ct. 143,144 n. 7, 448 A.2d 558, 568 n. 7. The appellant’s argument in this respect, therefore, is without merit.

Summary judgment is vacated and case remanded for further proceedings. Jurisdiction is relinquished.

      . The original record contains a stipulation to the effect that “Winthrop Laboratories, Incorporated” was an incorrect designation, and that the accurate corporate name of the appellee is “Winthrop Laboratories, Division of Sterling Drug, Incorporated”. However, because the papers submitted to this Court carry only the designation “Winthrop Laboratories, Incorporated”, we use that designation in this opinion.

      . Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34 (repealed) replaced by 42 Pa.C.S.A. § 5524(2).

      . The “discovery rule” provides that in personal injury cases the statute of limitations runs from the time of actual discovery of the injury or from the time when discovery of the injury was reasonably possible. See, Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959).

      . The term “frank breech” refers to the presentation of the buttocks of the fetus in labor, with the legs extended against the trunk and the feet lying against the face. See, Dorland’s Illustrated Medical Dictionary (25th ed. 1974) under “Presentation”.

      . During his deposition testimony, Dr. Smith denied any knowledge of the second administration of demerol. It was his contention that the notation found in the hospital record indicating that the appellant received a second dosage of the drug is not in his handwriting and was not ordered by him, either orally or in any subsequent written order. Whether Dr. Smith was responsible for this second medication is an issue to be resolved at trial. We comment on it here only for the purpose of noting that such an issue does not involve a material fact so as to deny a motion for summary judgment.

      . More specifically, appellant contends that Kenneth’s condition resulted from a combination of: (1) a failure on the part of Dr. Smith to perform a cesarean section when it was clear Kenneth’s birth would be a breech presentation; (2) the use of forceps by Dr. Smith to accomplish Kenneth’s delivery; and (3) an improper administration of the drug demerol during labor.

      . The appellant does not attempt to claim the benefit of the “estoppel theory” exception to the statute of limitations’ bar. The “estoppel theory” exception is premised on the concept that when an injured party is lulled into a sense of false security or misled by the party discovered to be culpable, which results in a delay in bringing suit beyond the statutory period, then the culpable party will be estopped from advocating a statute of limitations’ bar. Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967). It is axiomatic that before such exception can be applied, it must be demonstrated that the concealing screen was erected by appellant’s adversaries. Nesbitt v. Erie Coach Company, 416 Pa. 89, 204 A.2d 473 (1964). This is not the case here. If any concealment has been shown, it was effectuated by Dr. Shields, and not by appellees.


text:
    453 A.2d 349
    COMMONWEALTH of Pennsylvania v. Christina M. IVEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 6, 1981.
    Filed Oct. 29, 1982.
    Reargument Denied Jan. 6, 1983.

      Richard Friedman, Philadelphia, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WIEAND and HOFFMAN, JJ.
   PER CURIAM:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Montgomery County which imposed on appellant a fine of $69.00 plus costs for a violation of the Vehicle Code, 75 Pa.C.S.A. § 3362(a)(2), exceeding the maximum speed limit. Appellant was found guilty of driving her vehicle seventy-seven miles per hour in a fifty-five miles per hour zone, first by her local district justice, and again, after proceedings in a de novo trial on the charge on March 6, 1980. This appeal followed.

We are again presented with the situation in which the appellant has not been apprised of his right to file post-verdict motions, and therefore, are constrained to remand this case for that reason. As this Court stated in Commonwealth v. Picker, 293 Pa.Superior Ct. 381, 439 A.2d 162 (1981):

The state of this record is reflective of the confusion which existed in the legal community before our en banc decision in Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). That decision made it clear that post-verdict motions are required to be filed in order to preserve issues for appeal after the pronouncement of guilt in de novo trials held upon an appeal from the decision of a district justice. Id. See also Pa.R.Crim.P. 1123 and recent comment thereto. In the present case, we note that there were no post-verdict motions filed. We cannot, however, find a waiver on this basis because the lower court never apprised appellant Picker on the record of his right to file post-verdict motions as is mandated that the court do under Pa.R.Crim.Pr. 1123(c). Commonwealth v. Koch, supra. See also Commonwealth v. Johnston, 292 Pa.Superior Ct. 224, 437 A.2d 16 (1981); Commonwealth v. Williams, 290 Pa.Superior Ct. 158, 434 A.2d 179 (1981). Cf. cases with respect to motions to modify sentence under Pa.R.Crim.P. 1405(c), Commonwealth v. Koziel, 289 Pa.Superior Ct. 22, 432 A.2d 1031 (1981); Commonwealth v. Rush, 281 Pa.Superior Ct. 92, 421 A.2d 1163 (1980). In fact, the lower court, just as the lower courts in Koch, Williams and Johnston improperly pronounced verdict and sentence simultaneously through a written order made subsequent to the conclusion of the de novo trial. This effectively precluded the appellant from having the opportunity to file post-verdict motions which should properly be filed after the verdict is rendered, but before sentence, in this case a fine, is imposed. See Comment to Pa.R.Crim.P. 1123. The proper procedure for litigants to follow in this situation would be to file a motion to vacate the improperly imposed judgment of sentence in order to allow for the filing of post-verdict motions. Appellant, Picker, however, should not be faulted for his failure to do so because of the confusion which existed before Koch and the recent amendments to the Comments to Rules 67 and 1123 of the Rules of Criminal Procedure. See Commonwealth v. Johnston, supra [292 Pa. Superior Ct.] at 224 n. 3, 437 A.2d at 18 n. 3.
Finally, we note that in this case the lower court, pursuant to Pa.R.App.P. 1925(b), issued an order directing appellant to file of record a concise statement of the matters complained of on appeal. Thus, the appellant did so and the lower court specifically addressed these issues in its opinion in support of an order pursuant to Pa.R. App.P. 1925(a). This, however helpful, is certainly not an adequate substitute for the filing of post-verdict motions because the latter ask the lower court to reconsider its decision in light of alleged errors whereas the former simply requires the court to justify and articulate the reasons for its decision. This distinction is crucial in light of the fact that one of the main purposes for requiring post-verdict motions is to give the lower court an opportunity to correct asserted errors at that early stage without necessitating the expenditure of time and judicial energy in taking a costly appeal to the appellate courts. See Commonwealth v. Koch, 288 Pa.Superior Ct. at 296, 431 A.2d at 1055. In Koch, we stated that “[t]he purpose of such motions is twofold: (1) to afford the trial court in the first instance, the opportunity to correct asserted trial errors; and (2) to clearly and narrowly frame issues for appellate review. Commonwealth v. Kinsey, 249 Pa.Superior Ct. 1, 375 A.2d 727 (1977).” While a concise statement of matters complained of on appeal may narrow the issues for review, it does not allow the lower court the opportunity to correct its errors because the notice of appeal has already been filed and the lower court is thereby divested of jurisdiction to act further on the case. Pa.R.App.P. 1701(a).

Id., 293 Pa.Superior Ct. at 383-85, 439 A.2d at 163-64.

Additionally, in this case, appellant’s fourth issue was not raised in either her concise statement of the matters complained of on appeal, nor in the supplement to that statement. Therefore, the lower court was not even afforded an opportunity to justify and articulate the reasons for its decision on this issue.

For all of the foregoing reasons, the judgment of sentence is vacated and the case is remanded for the filing of post-verdict motions nunc pro tunc.

Jurisdiction is relinquished.

      . Appellant does not challenge the sufficiency of the evidence against her, but rather, raises these questions on appeal:
      1. Having granted the Commonwealth a continuance expressly conditioned upon production of a physician’s certificate and the Commonwealth being unable to produce the same because the allegation of sickness was false, [sic] was the trial court bound by its alternative ruling that the case be dismissed?
      2. Did an adjudication of guilt and imposition of sentence, without hearing and during pendency of trial, [sic] so violate fundamental standards of due process as to require defendant be discharged?
      3. The defendant having appeared for trial as ordered and, on the basis of an erroneously entered prior adjudication of guilt, having been denied both a hearing and the opportunity to confront her accuser, should she have been discharged?
      4. Was the tried court’s refusal to receive evidence in support of pretrial motions such a denial of due process as to require defendant be discharged?
      Brief for appellant, p. 3.


author: MONTEMURO, Judge:

text:
    453 A.2d 351
    COMMONWEALTH of Pennsylvania v. Herman STAFFORD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 28, 1981.
    Filed Nov. 15, 1982.

      Norman J. Barilla, New Castle, for appellant.
    David Hepting, Assistant District Attorney, Butler, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

This appeal comes before us from the judgment of sentence of the Court of Common Pleas of Butler County, wherein the appellant, Herman Stafford, was convicted of attempted statutory rape and corrupting the morals of a minor. Appellant contends on appeal that: (1) the trial court erred in not stating on the record whether the sentence was imposed on the attempted statutory rape conviction or the corrupting the morals of a minor conviction; (2) the trial court erred in denying defense counsel’s request for a “missing witness” instruction to the jury; (3) appellant’s trial counsel was ineffective in failing to object to the trial judge’s charge to which the jury was at variance with the bill of information; specifically that the information charged the defendant only with attempted rape and the trial court instructed the jury that the defendant could be found guilty either of attempted rape or attempted statutory rape; and (4) appellant’s trial counsel was ineffective in failing to comply with Pa.R.Crim.P. 305(C)(1)(a) requiring notice of an alibi defense and thereby appellant was not permitted to present alibi witnesses. We find merit only in the appellant’s final contention and accordingly remand this case for a determination of whether the appellant’s trial counsel was ineffective.

The events giving rise to this case occurred on the afternoon of September 22, 1979. The prosecutrix, an eleven-year-old girl, was “hanging out” in front of Moore’s Store in Portersville, Pennsylvania. The appellant drove up to the store in his pick-up truck and asked the prosecutrix if she wanted a ride in his truck, to which the prosecutrix said yes. A witness, Mr. Merl Bintrim, who lived about a half block from Moore’s store, testified that he saw the prosecutrix climb into the truck. The prosecutrix testified that appellant said he would take her to a park; instead he drove a few miles down the road to a cornfield and backed his truck into the field. He then grabbed her, pushed her down on the seat and pulled down her pants and underpants. He then took down his own pants and laid on top of her for a “long time.” He fondled her breasts with his hands and also her genitalia. After an indeterminate period he got up and said “I give up.” Both parties then dressed and the appellant drove the prosecutrix home.

When the prosecutrix arrived home her mother asked where she had been and she replied that she “was up at school.” When her mother asked her again, she told her what had happened. The parents of the prosecutrix took her to Butler Hospital to be examined. The examination revealed seminal fluid in the crotch area of the girl’s underpants as well as pubic hairs which could not have belonged to her. The pubic hairs were “consistent with” hairs taken from the appellant pursuant to a search warrant.

The appellant testified that, at the time of the incident, his truck was parked and blocked in his driveway by other vehicles and that he was assisting his mother-in-law with a garage sale and also doing automotive repair work for his brother. The court refused to allow appellant to present alibi witnesses because appellant’s trial counsel did not give timely notice of appellant’s intent to assert an alibi defense under Pa.R.Crim.P. 305(C)(1)(a).

Addressing the appellant’s claims, we first examine his contention that the trial court erred in failing to state on the record for which conviction sentence had been imposed. In presenting this argument, the appellant correctly asserts that a conviction for corrupting the morals of a minor is a lesser included offense of statutory rape and is therefore merged into a statutory rape conviction where the jury finds a defendant guilty on both. Commonwealth v. Reidenbaugh, 266 Pa.Super. 315, 404 A.2d 697 (1978); Commonwealth v. Cox, 209 Pa.Super. 457, 228 A.2d 30 (1967). Appellant also asserts that in the present case the corruption of the morals of a minor conviction is merged into the attempted statutory rape conviction. Again we agree with the appellant. However, appellant then asserts that the trial court committed reversible error when it failed to state on the record on which conviction sentence was imposed. He says this is so for the reason that the sentence may reflect the lesser included offense. We cannot subscribe to this argument. In Commonwealth v. Cox, supra, we reversed the lower court’s imposition of separate sentences for each conviction, stating:

In the case now before us the only acts, other than fornication, on which a charge of corrupting could be based, are the acts of fondling the breasts of the victim and forcing her to kiss him, both of which occurred during or immediately before the act of fornication was committed. These acts are so clearly related to the act of fornication that we are led to the same conclusion which was reached by the Supreme Court of California in People v. Greer, 30 Cal.2d 589, 184 P.2d 512 (1947) and followed by the Court of Appeals of Maryland in Bennett v. State, 229 Md. 208, 182 A.2d 815, 4 A.L.R.3rd 862 (1962), under similar factual situations that the crime of contributing to delinquency was merged in the crime of statutory rape. Therefore it was error for the lower court to impose separate sentences on each of these two crimes.

Id., 209 Pa.Superior Ct. at 466, 228 A.2d at 35. See also Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980).

In the present case, the trial court correctly imposed only one sentence on the appellant of two (2) to four (4) years imprisonment. This sentence is well within the limits established by the legislature for a felony of the second degree. 18 Pa.C.S.A. § 106. Thus we find no error in the sentence imposed by the trial court.

The appellant’s second contention, that the trial court erred in denying defense counsel’s request for a “missing witness” instruction to the jury is also without merit. This court has repeatedly stated the prerequisites to be met before a “missing witness” instruction is mandated:

The “missing witness” rule as it is often called, holds generally that “when a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person’s testimony would not merely be cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference that it would have been unfavorable.” Commonwealth v. Moore, 453 Pa. 302, 305, 309 A.2d 569, 570 (1973). The rule does not apply if “the Commonwealth adequately explains its inability to produce the witness ... or establishes other reasons why the witness need not or should not be called.” Commonwealth v. Paull, 250 Pa.Super. 416, 420, 378 A.2d 1006, 1007 (1977).

Commonwealth v. Brown, 267 Pa.Super. 530, 533-534, 407 A.2d 36, 38 (1979). Appellant asserts that this instruction should have been given because the Commonwealth did not produce witnesses who observed the prosecutrix enter the appellant’s truck; including the sister of the prosecutrix, the store attendant and the wife of Commonwealth witness, Merl Bintrim. The appellant further contends that the father of the prosecutrix could have testified regarding the events that occurred when the prosecutrix returned home.

The Commonwealth contended and the trial court agreed that the testimony of the witnesses would be cumulative. We are in agreement with this conclusion. The appellant has made no showing that these witnesses had any special information material to the issue. Furthermore, the appellant has made no showing that these witnesses were not equally available to the defense. Under these circumstances we find no error in the trial court’s denial of defense counsel’s requested instruction.

Appellant also contends that his trial counsel was ineffective in failing to object to the trial judge’s instruction to the jury which was allegedly at variance with the bill of information. We find no merit in this contention. In determining whether an appellant was afforded effective assistance of counsel, the court will make an independent review of the record. Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978), and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Com monwealth v. Shirk, 228 Pa.Super. 356, 323 A.2d 99 (1974). Counsel will be deemed effective if this court determines that the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, supra; Commonwealth v. Johnson, 280 Pa.Super. 309, 421 A.2d 737 (1980). However, it is only when the claim is of arguable merit that we must make an inquiry into the basis for counsel’s decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

In determining whether this claim is of arguable merit we must examine the trial judge’s charge to the jury and the charge as set forth in the bill of information. The trial judge stated:

Thus, in your consideration of the charge of attempted rape, there are three possible verdicts: Guilty of attempted rape; not guilty of attempted rape but guilty of attempted statutory rape; or not guilty.

It is contended by the appellant that this is at variance with the bill of information which reads:

... the Defendant above named, in the County of Butler, did on or about such date between 4:30 and 6:30 P.M. in Muddycreek Township, in Butler County, committed an attempt when, with intent to commit the crime of rape, attempted to have sexual intercourse with one, Michelle Ann Kraly, a female child, aged 11, by forcible compulsion. (emphasis added)

While the charge as set forth does include the elements for attempt to commit rape, it also includes the elements of attempt to commit statutory rape. Herein the appellant was on notice of the charge of attempted statutory rape since the information set forth the elements of that crime as shown by the emphasized language. While the charge also set forth the element of forcible compulsion necessary to a conviction for attempted rape, we find no prejudice to the appellant. The basis of the appellant’s defense was an alibi, not that the prosecutrix consented to the act. This alibi defense, if proved, would be valid against charges of both attempted rape and attempted statutory rape. “The purpose of an indictment, and of an information, is to provide the accused with sufficient notice to prepare a defense, and to ensure that he will not be tried twice for the same act.” Commonwealth v. Ackerman, 239 Pa.Super. 187, 361 A.2d 746 (1976); Commonwealth v. Brown, 229 Pa.Super. 67, 323 A.2d 845 (1974); Commonwealth v. Rolinski, 267 Pa.Super. 199, 202, 406 A.2d 763, 764 (1979). Here the appellant had notice of the crime for which he was found guilty, and his defense was suited to that crime. Therefore, there was no valid objection to the trial judge’s jury charge. Since it is not a claim of arguable merit, counsel was not ineffective. Commonwealth ex rel. Washington v. Maroney, supra.

Finally, appellant contends that his trial counsel was ineffective in failing to give timely notice of the assertion of an alibi defense as required by Pa.R.Crim.P. 305(C)(1)(a), thereby precluding the appellant from presenting alibi witnesses at trial. The appellant did offer the testimony of his wife and mother-in-law that the appellant’s truck, the vehicle used in the crime, was parked in the driveway of his mother-in-law’s house and was blocked in by two other vehicles on the day and at the time in question. However, it is obvious from the record that appellant’s trial counsel sought to present other witnesses to testify regarding the appellant’s whereabouts, but was prevented by the, trial court due to his failure to comply with the notice requirement of Rule 305(C)(1)(a). We have no record of the number or identity of witnesses the appellant wished to present, or of the content of their testimony.

Again we must first determine whether appellant’s claim is of arguable merit, and in doing so, we are restricted by the lack of an adequate record from the court below. Inasmuch as we do not know the identity of the alibi witnesses or the content of their testimony, it is impossible to determine whether the testimony would be helpful to the appellant’s alibi claim. Commonwealth v. Price, 278 Pa.Super. 255, 420 A.2d 527 (1980). Faced with such an inadequate record we must remand the case for an evidentiary hearing to take the testimony of appellant’s alibi witnesses and any other pertinent testimony to determine whether it would have been helpful to the appellant’s case or not. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1976); Commonwealth v. Henry, 295 Pa.Super. 47, 440 A.2d 1215 (1982). If, after hearing the testimony of the witness, the lower court determines that the alibi claim was of arguable merit and that trial counsel was ineffective in failing to assert it, then the appellant must be afforded a new trial. If the lower court finds that counsel was not ineffective, the judgment of sentence shall be reinstated with no prejudice to appellant’s right of appeal from that determination.

Accordingly, we order this case be remanded for a determination of whether appellant's trial counsel was ineffective in failing to give timely notice of an alibi defense. We relinquish jurisdiction.

      . 18 Pa.C.S.C. § 3122, 18 Pa.C.S.A. § 901.

      . 18 Pa.C.S.C. § 3125.

      . Statutory Rape is defined to be a felony of the second degree 18 Pa.C.S.A. § 3122. A criminal attempt is defined to be a crime of the same grade as the most-serious offense attempted. 18 Pa.C.S.A. § 905.

      . 18 Pa.C.S.A. § 3121, 18 Pa.C.S.A. § 901.

      . Contrary to the Commonwealth’s assertion, this issue was preserved in appellant’s post-verdict motions.

      . The trial court limited the scope of testimony of these witnesses to their observations regarding the placement of appellant’s truck. In any event, it is obvious that the jury disregarded their testimony.


author: SPAETH, Judge:

text:
    453 A.2d 356
    William J. BRENNAN, III, Administrator of the Estate of William J. Brennan, Jr., and William J. Brennan, III, Administrator of the Estate of Evelyn M. Brennan v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, LTD., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1982.
    Filed Nov. 30, 1982.

      Roger Joseph Harrington, Philadelphia, for appellant.
    Richard F. Furia, Philadelphia, for appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   SPAETH, Judge:

This is an appeal from an order granting a petition to enforce an arbitration agreement. The appeal will be quashed.

-1-

The arbitration agreement in question is contained in the underinsured motorist provision of an insurance policy issued by appellant. Appellee made the provision an exhibit to his petition to enforce the arbitration agreement. R.R. 28a-29a. In its answer to the petition, appellant not only did not deny that the exhibit accurately stated the arbitration agreement, it repeated the terms of the agreement. R.R. 9a. The lower court concluded that as thus pleaded, the arbitration agreement provided for common law arbitration. Slip op. at 4-5. This conclusion was correct, and appellant does not dispute its correctness.

In these circumstances, appellant’s appeal must be quashed. For we have held that an order directing common law arbitration is not an appealable order. Cassidy v. Keystone Ins. Co., 297 Pa.Super. 421, 443 A.2d 1193 (1982); Wilson v. Keystone Ins. Co., 289 Pa.Super. 101, 432 A.2d 1071 (1981).

In cases such as this, one must start by asking what sort of arbitration is involved. If the arbitration agreement provides for arbitration under the Pennsylvania Arbitration Act of 1927, then an order granting a petition to enforce the agreement is appealable. It is, because a statute makes it so. 42 Pa.C.S.A. § 7320; Wilson v. Keystone Ins. Co., supra. If the arbitration agreement provides for common law arbitration, then the appealability of an order granting a petition to enforce the agreement is governed by general principle; there is no statute making the order appealable.

As a matter of general principle, an order is not appealable unless it puts the appellant “out of court.” Sometimes an order will not literally put the appellant out of court but still it will be appealable because as a practical matter the appellant will be unable to present his claim. Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981) (collecting cases).

An order refusing to direct common law arbitration is not appealable, for the appellant—the party objecting to the order—is not only not out of court, he is in court; that he is is the very basis of his objection. Thus there is nothing final, in any sense, about the order. Hiller v. Allstate Ins. Co., 300 Pa.Super. 149, 446 A.2d 273 (1982).

Where, instead of refusing to direct the court directs common law arbitration—which is what the lower court did here—it is not so obvious that the party objecting to the order is not as a practical matter sufficiently out of court to make the order appealable. Judicial review of common law arbitration is very narrow. A court may not vacate or modify an award “unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.” 42 Pa.C.S.A. § 7341. If a party proceeds to common law arbitration without first asking a court to find that the matter at issue is not within the scope of the arbitration agreement, the party may not later seek to have the court vacate an adverse award on the ground that the arbitrators incorrectly determined that the matter was within the scope of the agreement. White v. Concord Mutual Ins. Co., 296 Pa.Super. 171, 179, 442 A.2d 713, 717 (1982).

Wilson v. Keystone Ins. Co., supra, does not cite any case holding that an order directing common law arbitration is not appealable. The authority on which Wilson relies are cases discussing the concepts of finality and appealability in general, eg., Piltzer v. Independence Federal Savings and Loan Association of Philadelphia, 456 Pa. 402, 319 A.2d 677 (1974), and cases holding that orders refusing to direct common law arbitration are not appealable, e.g., Wechsler v. Newman, 256 Pa.Super. 81, 389 A.2d 611 (1978). Nor does Wilson cite older Supreme Court cases where the Court did decide appeals from orders directing common law arbitration. E.g, Women’s SPCA v. Savage, 440 Pa. 34, 269 A.2d 888 (1970); United Steelworkers of America v. Westinghouse Electric Corporation, 413 Pa. 358, 196 A.2d 857 (1964).

Nevertheless, we agree with, and reaffirm, Cassidy v. Keystone Ins. Co., supra, and Wilson v. Keystone Ins. Co., supra. Although a party such as appellant may in some sense be out of court, that is true only temporarily. The controversy is not concluded, and we see no compelling need for immediate appellate review. If the arbitration is permitted to proceed, the party initially objecting to arbitration may win. The party would then no longer be aggrieved and no appeal would be required. At worst, the party will have been required to participate in an unnecessary arbitration, but that is no different than the situation where a party is required to go to trial after a court erroneously refuses to sustain a demurrer to a complaint. Moreover, unlike ordinary litigants, parties to an arbitration agreement can ensure immediate appellate review merely by providing that their arbitration will be statutory, under the Uniform Arbitration Act, 42 Pa.C.S.A. § 7301 et seq., rather than at common law. Although Cassidy and Wilson might appear to conflict with the older Supreme Court cases, nothing in those older cases suggests that the question of appealability was raised or considered.

-2-

Appellant claims that the arbitration agreement after all does not provide for common law arbitration but for statutory arbitration. If the record supported this claim, then, as we have discussed, the order of the lower court directing arbitration would be appealable.

In support of its claim that the arbitration agreement provides for statutory arbitration, appellant has attached to its brief, as Appendix “5”, what purports to be an “Amendment” of its policy with appellee. This amendment provides that “[arbitration shall be conducted in accordance with the provisions of the Pennsylvania Constitution Act of 1927.”

We cannot give any effect to appellant’s Appendix “5”. As we have mentioned, as pleaded before the lower court the arbitration agreement provides for common law arbitration. The “amendment” to the agreement contained in Appendix “5” is not part of the record certified to us by the lower court, and including it in a brief does not make it part of the record. General Accident Fire & Life Assurance Corporation, Ltd., v. Flamini, 299 Pa.Super. 312, 317 n. 3, 445 A.2d 770, 773 n. 3 (1982). Appellant points to the code number of the amendment on the policy’s declaration page, which is part of the record. The code number should perhaps have placed appellant on notice that there was another part of the policy that it might wish to make part of the record. But the code number did not bring before the lower court, and cannot bring before us, the text of the amendment. Therefore, although we acknowledge that the parties might have intended otherwise, so far as the record shows their agreement provides for common law arbitration. From that it follows that this appeal is premature and must be quashed. Cassidy v. Keystone Ins. Co., supra.

So ordered.

      . Act of April 25, 1927, P.L. 381, No. 248, as amended, 5 P.S. § 161 et seq. The Act of 1927 was repealed by the JARA Continuation Act of 1980, Act of October 5, 1980, P.L. 693, No. 142, § 501(c), effective in 60 days. Statutory arbitration is now provided for by the Judicial Code, 42 Pa.C.S.A. §§ 7301-7320.


author: CIRILLO, Judge:

text:
    453 A.2d 358
    COMMONWEALTH of Pennsylvania, Appellant, v. Keith A. WOODARD.
    Superior Court of Pennsylvania.
    Argued May 12, 1982.
    Filed Nov. 30, 1982.
    Petition for Allowance of Appeal Denied Feb. 15, 1983.

      Ann Carol Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Douglas Bry, Assistant Public Defender, Philadelphia, for appellee.
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   CIRILLO, Judge:

This is an appeal from an Order of the Court of Common Pleas of Philadelphia County, granting the appellee’s Motion to Supress physical evidence and a statement.

On April 22, 1981, at approximately 4:00 p.m., Officer Lawrence Nodiff of the Philadelphia Police Department observed a white Buick Century travelling down 48th Street in Philadelphia at a high rate of speed. The vehicle crossed over into the oncoming lane and then proceeded through a red light before being stopped by the officer. Thereafter, Officer Nodiff approached the car and asked the operator, appellee Keith Woodard, for his driver’s license and registration. The appellee could not produce either, so the officer asked him who owned the car. The appellee gave his name and an oral statement in which he claimed that the car belonged to a relative.

Officer Nodiff subsequently observed a “Hertz Rental Car” sticker in the back window and, upon opening the door to determine the serial number of the car, saw a similar sticker. The officer then returned to his patrol car and, using the police radio, initiated a search through the National Crime Information Center (N.C.I.C.) as to whether the car was stolen or whether the appellee was wanted for any crime. The N.C.I.C. informed him that the car was owned by Hertz Rental Cars, located at Philadelphia International Airport, that there was no report of it being stolen, and that the appellee was not wanted in connection with any crime. Despite this information, the officer arrested the appellee and impounded the car. Officer Nodiff contacted Hertz after arriving at the police station, but at that time, Hertz was not aware that the car was missing. However, a check of their lot revealed that the car had been stolen.

The appellee was charged with theft by unlawful taking or disposition , theft by receiving stolen property and unauthorized use of a motor vehicle. On June 8, 1981, the appellee filed a motion to suppress physical evidence, i.e., the vehicle, as well as his oral statement to Officer Nodiff in which he indicated that the vehicle belonged to an unnamed relative. A hearing was held before the Honorable Nelson A. Diaz on August 3, 1981, after which, the Motion to Suppress was granted. The Commonwealth’s appeal from that order followed.

The question presented on appeal is whether the challenged evidence is suppressible as the fruit of an illegal arrest.

Uniformed police can lawfully stop a vehicle when they witness a traffic offense. Commonwealth v. Hunter, 240 Pa.Super. 23, 360 A.2d 702 (1976); 75 Pa.C.S.A. § 6304(b). Under the facts of this case, it is clear that the policeman was justified in stopping the vehicle.

It is axiomatic that probable cause to justify a warrantless arrest exists if the facts and circumstances known to the officer at the time of arrest would warrant a prudent man in believing that an offense had been committed and the suspect was the perpetrator of that offense. Commonwealth v. Zimmerman, 282 Pa.Super. 286, 422 A.2d 1119 (1980); Commonwealth v. Holloway, 229 Pa.Super. 128, 323 A.2d 216 (1974).

The appellee was unable to produce a driver’s license, vehicle registration card, or any other form of identification upon request. Also, the appellee stated that the car belonged to an unnamed relative. Yet, the officer subsequently observed two Hertz identification stickers on the car and could reasonably assume that anyone properly driving a Hertz rental car would be able to produce at least a rental agreement indicating his entitlement to operate the vehicle. In Commonwealth v. DeFlemingue, 450 Pa. 163, 299 A.2d 246 (1973), Philadelphia police observed a white car with its trunk hood up in front of the Paxson School at 3:20 a.m. There was a man in front of the car with a flashlight and another man coming from the rear of the school carrying a large cardboard box. After the man placed the box into the trunk, the police approached and noticed two large speakers and a number of tapes in the trunk. The police asked the appellant to explain his actions, and they were told by him that he had left the car to go behind the school to urinate and had taken the materials found in the trunk with him because he did not wish to leave them in the car while he relieved himself. Police observed nothing unusual in the rear of the school building; however, they arrested the two men and took them and the vehicle to the police station. The court found that the circumstances, as well as the appellant’s incredible response provided sufficient probable cause for arrest. In the present case, once Officer Nodiff had confirmed through the N.C.I.C. that the registered car owner was in fact Hertz Rental, the surrounding circumstances and the appellee’s statement provided police with probable cause to arrest appellee for unauthorized use of an automobile.

Yet, even assuming that the facts before us are insufficient to establish probable cause, they are certainly adequate to justify a brief detainment of the appellee until it could be determined whether the car was actually stolen.

The Fourth Amendment4 * does not require a policeman who lacks the precise level of information necessary for probable cause, to simply shrug his shoulders and allow a crime to occur or a criminal to escape. Police may briefly stop an individual to determine his identity or obtain more information. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Commonwealth v. Seip, 285 Pa.Super. 551, 428 A.2d 183 (1981).

The theft had been so recent that the N.C.I.C. had not yet received a stolen car report for this vehicle. The officer could rationally conclude that a company such as Hertz, which owns a vast number of automobiles, would not immediately discover a theft from one of its parking lots. In Commonwealth v. Johnson, 275 Pa.Super. 343, 349, 418 A.2d 754, 757 (1980), this Court (per Spaeth, J.) held:

Probable cause to hold a suspect in custody while facts are checked is present where, “the facts and circumstances within the knowledge of the officer, or of which he has reasonable, trustworthy information are sufficient to warrant a man of reasonable caution in believing the suspect has committed or is committing a crime.” Commonwealth v. Hayes, 237 Pa.Super. 510, 513, 352 A.2d 121, 122 (1975). All circumstances surrounding the apprehension should be taken into account in determining whether probable cause existed. Commonwealth v. Lawson, 454 Pa. 23, 27, 309 A.2d 391, 394 (1973).

Measured by the foregoing standards, we find sufficient probable cause to justify appellee’s apprehension on the street and his short detention at the station while the officer completed his investigation by telephoning Hertz. Since the arrest was supported by adequate probable cause, the evidence was not subject to suppression under the Fourth Amendment.

Accordingly, we reverse the Order of the Court below and remand this case for trial.

Reversed and remanded. Jurisdiction is relinquished.

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 3921.

      . Id., 18 Pa.C.S.A. § 3925.

      . Id., 18 Pa.C.S.A. § 3928.

      . The responsibility of the Commonwealth in presenting its Statement of Jurisdiction when it appeals from a pre-trial order of suppression is presently being considered by an en banc panel of the Superior Court. However, at the time the instant appeal was filed, this procedure was governed by the holding in Commonwealth v. Kunkel, 254 Pa.Super. 5, 10, 385 A.2d 496, 499 (1978) which provided:
      In every case in which the Commonwealth appeals from an order suppressing evidence, the Commonwealth must include in its brief, in support of its claim that this Court has jurisdiction to hear the appeal, first, a statement that the suppression will terminate or substantially handicap the prosecution; and second, a brief explanation, not inconsistent with the record, why this is so.
      The Commonwealth satisfied the mandate of Kunkel, in the current matter by way of the statement and explanation contained in its brief in footnote 1, page 1.

      . In this instance, the appellee was charged with reckless driving, 75 Pa.C.S.A. § 3714, and failing to have a driver’s license, 75 Pa.C.S.A. § 1511, both of which are summary offenses under the Vehicle Code.

      . The Fourth Amendment states:
      The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
      U.S.C.A. Const.Amend. IV.