text:
    458 A.2d 1002
    ACADEMY HOUSE COUNCIL v. Leslie PHILLIPS a/k/a Ralph Plotkin and Tamara Plotkin. Appeal of Leslie PHILLIPS a/k/a Ralph Plotkin.
    Superior Court of Pennsylvania.
    Argued June 4, 1982.
    Filed April 8, 1983.

      Leslie R. Phillips, Philadelphia, appellant, in pro. per.
    James Tracey, III, Philadelphia, for appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

The orders from which these appeals were taken denied a defendant’s petition to strike default judgments which had been entered against her.

For the sake of clarity we shall deal with the appeals separately. Both cases, however, involve the same background, parties and facts. The defendants [hereinafter Leslie and Tamara] are co-tenants of a condominium unit. The plaintiff is the elected management group for the condominium apartment building. The action is over the monthly assessments allegedly owed by the defendants to the plaintiff. The first case was brought to collect the assessments from April to December 1979. The second case was brought to collect the assessments from January to December 1980.

First Case, No. 1312 January Term, 1980

A complaint was filed on January 11, 1980. After preliminary objections were filed by Leslie, plaintiffs filed an amended complaint on February 14, 1980. On March 11, 1980, Leslie filed a preliminary objection to the amended complaint asserting that the amended complaint should be struck off for failure to conform to the rules of civil procedure in that plaintiff had filed its amended complaint without the consent of the defendants or leave of the court. Plaintiff filed an answer to the preliminary objections, and on April 22, 1980, Leslie’s preliminary objections were overruled by the court which added to its order the words “defendant shall have the right to plead over within 20 days after notice of this Order.” This order was docketed on April 28, 1980. Meanwhile, on March 18, 1980, plaintiff had filed a praecipe for the entry of judgment against Tamara for failure to file an answer to the complaint. The praecipe was accompanied by a certification of notice to the defendants in the action, which notice was purportedly mailed to Tamara on February 18, 1980. The certification contains the caption and number of the case. The copy of the notice contains the name of one defendant only—Tamara, and was mailed to Tamara’s address.

On May 27, 1980, a praecipe was filed by plaintiff for entry of judgment against Leslie for failure to file an answer pursuant to the April 22 order of the court overruling Leslie’s preliminary objections and giving her “the right to plead over within 20 days.” The required accompanying certification of notice to the defendant contains the caption of the case and a copy of the February 18 notice to Tamara. There is nothing in the record indicating notice to Leslie. The docket sheet of the court of common pleas contains, with respect to the March 18 praecipe, the notation “Deft. Tamara H. Plotkin only.” With respect to the May 27 praecipe the docket sheet contains the words “in sum of $2,440.24 as to Leslie Phillips a/k/a Ralph Plotkin.”

Leslie filed her petition to strike the default judgment on June 24, 1980. In her petition to strike Leslie asserted failure by the plaintiff to comply with Rule 237.1 of the Pennsylvania Rules of Civil Procedure, which provides in part:

Rule 237.1 Notice of Praecipe for Entry of Default Judgment
(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time’ specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.
(b) This rule does not apply to (1) a judgment entered pursuant to an order of court or rule to show cause or (2) any action subject to the provisions of Act No. 6 of 1974, P.L. 13, 41 P.S. § 101 et seq.

The trial court, in denying the petition, reasoned that the judgment entered against Leslie resulted from her failure to plead over within twenty days of the overruling of her preliminary objections, and that under Rule 237.1(b) no notice was required.

The rationale then for the refusal to strike the default judgment is that the order granting the right to plead over within twenty days is the equivalent of a “judgment entered pursuant to an order of court” and thus the notice requirement of Rule 237.1(a) does not apply.

We disagree. We believe that Rule 237.1 must be strictly construed in view of its enactment pursuant to this court’s disapproval of the entry of “snap” judgments. See Explanatory Note—1979—of the Civil Procedural Rules Committee; Carson Pirie Scott & Co. v. Phillips, 290 Pa.Super. 353, 434 A.2d 790 (1981). See also Wolgemuth v. Kleinfelter, 63 Pa.Commw. 395, 437 A.2d 1329 (1981), where the commonwealth court held that a judgment entered pursuant to a rule to show cause did not fall within Rule 237.1(b), because the rule to show cause did not require action upon penalty of default within a specified period of time. We believe, and so hold, that this portion of part (b) of Rule 237.1 means precisely what it says—that notice is not required where a judgment is entered pursuant to an order of court. There was no order of court that judgment be entered in this case. Leslie was not given notice according to part (a) of Rule 237.1. This lack of notice is fatal to the default judgment entered against her.

A petition to strike a default judgment will be granted where a fatal defect appears on the face of the record. Cameron v. Great Atlantic & Pacific Tea Co., 439 Pa. 374, 266 A.2d 715 (1970); Fox v. Gabler, 282 Pa.Super. 490, 423 A.2d 351 (1981), petition for allowance of appeal denied March 13, 1981. The fatal defect—lack of required notice to the defendant in accordance with Rule 237.1(a)— appears on the face of the record in this case. The order denying the petition to strike must therefore be reversed. We emphasize, however, that we have no sympathy with a defendant who self-righteously cites rules while declining to follow the court’s directive. We fail to understand why she did not file a responsive pleading as directed by the trial court. We advise defendant and recommend to plaintiff that any further pleadings be in strict accordance with the rules of civil procedure. We have as much dislike for dilatory tactics as we have for snap judgments. See Lalumera v. Nazareth Hospital, 310 Pa.Super. 401, 456 A.2d 996 (1983).

The order in case no. 1312, January Term 1980, is reversed, and the case is remanded for proceedings consistent with this opinion.

Second Case, No. 1886 December Term, 1980

The complaint in this action was filed on December 11, 1980. The sheriff filed a “not found” as to Tamara, but served Leslie on January 10, 1981. The complaint was re-instated on February 9, and Leslie was served again on February 16, 1981. A praecipe for judgment against Tamara was filed on March 2 together with a notice certification and a copy of a notice mailed to Tamara on February 7. A praecipe for judgment against Leslie was filed on March 20, together with a certification of a notice purportedly sent to Leslie on March 9,1981. On March 16 Leslie purportedly wrote a letter to plaintiffs counsel, acknowledging receipt of notice of her failure to answer and requesting that he not proceed further in the matter pending decision from the court on her petition to proceed in forma pauperis, which was filed on or about March 16, and then granted on May 4, 1981 by the motions judge. On May 22 Leslie filed a petition to strike the default judgment, which petition was denied.

On appeal Leslie asserts that her petition to strike the judgment “should probably have been captioned as a Petition to Strike and/or Open,” and then proceeds to argue to this court on that basis. Whether or not the petition was correctly captioned, the result would be the same. A petition to open a default judgment is within the sound discretion of the trial court and will not be reversed except for abuse of that discretion. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Cluster House, Inc. v. Reid, 297 Pa.Super. 102, 443 A.2d 320 (1982). The three requirements for opening a default judgment are that the petition to open must be promptly filed, the failure to file the responsive pleading must be reasonably explained or excused, and the party seeking to open the judgment must have a meritorious defense. Id. On the other hand, a petition to strike a default judgment will only be granted where a fatal defect appears on the face of the record. Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819 (1972); Narrowsburg Lumber Co., Inc.. v. Hopkins, 287 Pa.Super. 70, 429 A.2d 724 (1981).

However, whether this is a petition to open or a petition to strike there was no error in the trial court’s denying the petition. The three requirements for the opening of a default judgment are not all met. Leslie filed her petition over two months after receiving notice of the intent to file a praecipe for the entry of the default judgment. We need not discuss whether this was sufficiently prompt because Leslie has an insufficient excuse for her delay in filing her answer, the petition for in forma pauperis status only being filed when the answer was already due, and, most importantly, Leslie has not provided the court with any defense, meritorious or otherwise. Therefore there would be no reason to grant a petition to open. Next, as there is no fatal defect on the face of the record, there is no cause to grant a petition to strike. The petition to strike was correctly denied.

The order of the lower court as to case no. 1886 December Term 1980 is affirmed.

      . Leslie Phillips is the only one of the two defendants to appeal the denials of the petitions to strike the default judgments. Tamara Plotkin appears to have filed no pleadings in either case.

      . But see Pa.R.C.P. 1028(c) permitting the amendment of pleadings as of course within ten days after service of preliminary objections.

      . This statement should be construed as a warning against both these types of conduct and not as a specific finding in this case that either party engaged in them.

      . In her petition to strike Leslie admitted to having received such notice on March 6.


source: Caselaw Access Project

author: CERCONE, President Judge:

license: Public Domain

text:
    458 A.2d 1006
    Marsha Driban GRIEB v. Melvin DRIBAN, Appellant. Melvin DRIBAN, Appellant, v. Marsha Driban GRIEB.
    Superior Court of Pennsylvania.
    Submitted Feb. 15, 1983.
    Filed April 15, 1983.

      Mitchel H. Sheinoff, Willow Grove, for appellant.
    Richard S. Mailman, Jenkintown, did not submit a brief on behalf of appellee.
    Before CERCONE, President Judge, and JOHNSON and MONTEMURO, JJ.
   CERCONE, President Judge:

These are appeals from an order awarding custody of a minor child to his mother, and, to that extent, modifying the prior award of custody to the father. Convinced that the court below accorded controlling weight to the minor’s stated preference for his mother without conducting an inquiry on the record into the minor’s reasons for such stated preference, we conclude that the lower court applied an incorrect legal standard in the determination of this matter. As such, we vacate the order below with directions to the lower court to hold a hearing on this matter within thirty (30) days of the remand of the record in this case.

The parties, the natural parents of a minor child, John, were married and then divorced in 1976. On April 28, 1976, the Court of Common Pleas of Montgomery County, awarded custody of said minor to his father, appellant. John thereafter lived with his father until June of 1981, when John ran away to his mother in Ocean City, New Jersey. In December of 1981, John’s father filed a custody action in the Chancery Division of the Cape May County Superior Court. That court awarded custody of John to John’s mother until the end of that current school semester, and thereafter, until any subsequent order of the Montgomery County Court in the event John’s mother commenced proceedings in Montgomery County within nine (9) days of that court’s order. Proceedings in Montgomery County were so commenced and John has continued to reside with his mother during and since that time.

The lower court, the Honorable Horace A. Davenport, Judge, ruled:

... the Court’s position is basically—and you are going to have to give some good reasons for it to change—is that a sixteen year old child will decide where he wants to live.

The court below failed to give appellant any opportunity to make any such showing, however, ultimately holding:

A seventeen year old child, all he needs to do is tell me, “I prefer being with my father,” period. “I prefer being with my mother,” period. That’s the way it’s going to be.

Similarly, the court later reiterated:

Let me cut it real short. I will not enter any order for a sixteen year old child to live with his father or his mother. I can’t make it any shorter than that.

We hold that the court below cut it too “short”, by according controlling weight to a child’s stated preference without an inquiry on the record as to the reasons for said preference. The result may certainly be the same as the learned court below determined, however, where the sole evidence is the bare statement of preference by a minor, the court is obligated to receive evidence so as to be better able to determine upon what basis the minor’s preference is based.

A child’s preference is only one factor in the calculation of his best interest. In Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981), the Supreme Court stated:

Although the express wishes of a child are not controlling in custody decisions, they do constitute an important factor which must be carefully considered in determining the child’s best interest. The weight to be accorded the child’s preference varies with the age, maturity and intelligence of the child and the reasons given for the preference. 493 Pa. at 299, 426 A.2d at 559 (emphasis added).

As children grow older, more weight must be given to the preference of the child. In Martincheck v. Martincheck, 262 Pa.Superior Ct. 346, 350, 396 A.2d 788, 790 (1979), we said:

... While it is true that a child’s preference can carry great weight in a custody dispute, particularly as he grows older, a mere statement of preference is of little persuasive value.

For the foregoing reasons, the order of the court below is vacated and the case is remanded for a full hearing giving appellant an opportunity to be heard. Said hearing is ordered to take place within thirty (30) days from remand of the record in this case.

Jurisdiction is not retained.

      . Although the minor reaches the age of emancipation in June of 1983, we are nevertheless compelled to set forth the principle of law applicable to this particular area of custody of minor children.


author: SPAETH, Judge:

text:
    458 A.2d 1007
    COMMONWEALTH of Pennsylvania v. Kenneth CASELLA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 6, 1983.
    Filed April 15, 1983.

      James Murray Lynn, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   SPAETH, Judge:

This is an appeal from judgments of sentence for burglary, criminal trespass, and simple assault. We have concluded that the convictions for burglary and criminal trespass merge, and accordingly we vacate the judgment of sentence for criminal trespass. Otherwise, we affirm.

The testimony was that appellant secretly entered a woman’s apartment; that when discovered, he refused to identify himself; that he had “a hankie on his face and a pair of gloves and a rope around his neck,” N.T. 11/9/79 at 12; that when the woman began screaming, he came toward her and put his hand over her mouth to stop her screaming; and that eventually he ran off. Id. at 13.

Appellant argues that criminal trespass is a lesser included offense of burglary, and that therefore the lower court erred in sentencing him on both criminal trespass and burglary. It is settled, however, that criminal trespass is not a lesser included offense of burglary. Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978) (unlike burglary, criminal trespass has scienter requirement); Commonwealth v. Cardogan, 297 Pa.Super. 405, 409 n. 2, 443 A.2d 1185, 1187 n. 2 (1982) (“For purposes of indictment, governed by a comparison-of-the-elements test, criminal trespass is not a lesser included offense of burglary, and must be indicted separately____”); Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980) (ibid.).

Appellant further argues that the “offenses merged and appellant could not be sentenced on both charges [of criminal trespass and burglary].” Brief for Appellant at 8. In effect, appellant’s argument is identical to the one made in Commonwealth v. Crocker, supra, where the “[appellant’s argument [was] that by sentencing him for both burglary and criminal trespass the lower court impermissibly twice sentenced him for the same criminal act.” Id., 280 Pa.Super. at 474, 421 A.2d at 820. In Crocker we noted that

in merger of sentences cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be merger and only a single sentence may be imposed, or more than a single act, in which case there will be no merger and a sentence may be imposed for each act.
Id., 280 Pa.Super. at 475, 421 A.2d 820-821 (citations omitted).

See also Commonwealth v. Cardogan, supra.

Applying this principle here, we hold that the lower court erred in imposing two sentences, one for burglary and one for criminal trespass, for the evidence is that in practical effect appellant committed but one criminal act, specifically, one unlawful entry. It is clear that the sentence for criminal trespass did not affect the sentence for burglary: each sentence was to five years’ probation, the sentences to run concurrently. Accordingly, we shall not remand but shall merely vacate the sentence imposed for criminal trespass as the lesser crime. Commonwealth v. Crocker, supra; Commonwealth v. Cardogan, supra.

Appellant also argues that his counsel was ineffective for failing to ask the trial judge, who was sitting without a jury, to recuse himself. The record shows that after pleading not guilty to burglary, appellant pleaded guilty to criminal trespass but then, after a brief discussion with his counsel off the record, changed his plea to not guilty. N.T. 11/9/79 at 7-8.

“Counsel will not be held ineffective unless no reasonable basis exists for his course of action. It is reasonable for counsel to decline to file motions or enter objections which are without merit.” Commonwealth v. Roach, 479 Pa. 528, 530, 388 A.2d 1056, 1058 (1978) (citations omitted). Before it can be said that a judge should have recused himself, “the party seeking the disqualification [] has the burden of producing evidence tending to show bias, prejudice or unfairness by the judge.” Commonwealth v. McQuaid, 273 Pa.Super. 600, 609, 417 A.2d 1210, 1215 (1980) (citations omitted). The gist of appellant’s argument is that his counsel should have asked the trial judge to recuse himself because, once having heard appellant plead guilty, the judge could not give appellant the benefit of a reasonable doubt. While this argument has some force, we are not persuaded by it that we should find counsel ineffective and therefore .award appellant a new trial. It is not uncommon for a guilty plea to be entered on the basis of a mistaken belief. Here, for example, appellant may have pleaded guilty to criminal trespass because he believed that the fact of his entry into the apartment was by itself sufficient to demonstrate his guilt—a belief that counsel would have corrected, leading to the plea being changed. Of course we don’t know that that is what happened; the record is silent on why appellant changed his plea. We mention this possibility only by way of illustrating the fact that a judge may be relied upon to know—as a jury may not be—that a guilty plea is not an unambiguous event. Even so, if this were only a criminal trespass case, we might remand for a hearing, at which counsel could explain why he didn’t ask the judge to recuse himself. But as our discussion of merger has shown, this is not a criminal trespass case but a burglary case, and as to the charge of burglary, appellant pleaded not guilty. Nothing suggests any basis for recusal as to the burglary charge. We should enter an anomalous order indeed, were we to vacate the judgment of sentence for criminal trespass (as to which charge perhaps the judge should have recused himself), while awarding a new trial on the burglary charge (as to which no basis for recusal appears).

Appellant finally argues that the evidence was insufficient to sustain his convictions of burglary and simple assault. We think this argument requires no discussion.

Affirmed, except the judgment of sentence for criminal trespass is vacated.

JOHNSON, J., concurred in the result.

      . Appellant did not argue merger below. Despite that failure, however, the argument is not waived. See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980).


author: WICKERSHAM, Judge:

text:
    458 A.2d 1010
    COMMONWEALTH of Pennsylvania v. Alan Thomas BRYANT, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1982.
    Filed April 15, 1983.

      Richard Eric Moose, West Chester, for appellant.
    Phyllis R. Streitel, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   WICKERSHAM, Judge:

This appeal arises out of Alan Thomas Bryant’s challenge to the sentence he received after pleading guilty to rape and other offenses. On August 9, 1980, Bryant was charged with rape, robbery, kidnapping, unlawful restraint, false imprisonment, aggravated assault, simple assault, terroristic threats, recklessly endangering another person, firearms violations, theft and criminal conspiracy. Bryant was later charged with involuntary deviate sexual intercourse.

Bryant, along with a codefendant, entered an open plea of guilty to the charges of rape, robbery, kidnapping, aggravated assault, involuntary deviate sexual intercourse and conspiracy. The judge below, the Honorable Dominic T. Marrone of the Chester County Court of Common Pleas, conducted a guilty plea colloquy with Bryant. President Judge Marrone accepted Bryant’s plea and deferred sentencing.

On January 20, 1981, Bryant was sentenced to pay a fine and undergo a five to ten year term of imprisonment on the rape charge. A five to ten year sentence was imposed on the robbery charge but this sentence was to be served concurrently with the rape sentence. The other charges against Bryant resulted in a ten year probation period to be served consecutively to the rape sentence.

Bryant’s counsel filed a motion for reconsideration of sentence on January 27, 1981. The motion stated that Bryant had been prejudiced by the Assistant District Attorney’s reference to the race of the victim and that the sentencing judge erred by considering Bryant’s prior arrests, the surrounding circumstances of which were allegedly not fully explained in the presentence report. Bryant filed a timely notice of appeal. On April 24, 1981, the lower court dismissed Bryant’s application for reconsideration of sentence.

The facts presented to the court at the hearing on Bryant’s guilty plea showed that on August 9, 1980 the victim was working the midnight to eight shift at a store in Lower Oxford Township, Chester County. At approximately five a.m. two men, Bryant and his codefendant, entered the store and demanded at gun point that the victim give them the money in the cash register. The victim gave Bryant the money and Bryant ordered her, again at gunpoint, into a car with Bryant and the codefendant.

Bryant drove off with the victim. Both Bryant and his codefendant had sexual intercourse with the victim; Bryant also committed an act of involuntary deviate sexual intercourse with the victim. The victim tried to escape but Bryant choked her into unconsciousness. When she recovered the codefendant told her he had saved her life and that he wanted to have sex with her. The victim, by this time wearing only a torn shirt, ran across the fields and got help. Bryant and the codefendant pleaded guilty to charges arising out of this episode and this appeal followed.

Bryant’s sole contention in this appeal is that the sentencing judge erred in considering Bryant’s prior arrests when imposing sentence. At sentencing the judge stated:

These, of course, are very serious offenses, and, while this man has no record of convictions, we have also looked at his character in the past, and there have been some charges which were disposed of in other fashions. Record, 1/20/81 at 13.

Bryant argues that the sentencing judge’s reference to Bryant’s prior arrests was ambiguous and that the judge should not have used the mere happening of an arrest to assess Bryant’s character.

As Judge Spaeth wrote in Commonwealth v. Smith, 250 Pa.Super. 537, 542-43, 378 A.2d 1278, 1281 (1977): “At the sentencing hearing, appellant did not dispute the pre-sentence report. Thereby he waived his right to put the Commonwealth to further proof.” See also, Commonwealth v. Cruz, 265 Pa.Super. 474, 402 A.2d 536 (1979). If Bryant disputed the contents of the report or its use, he should have objected at sentencing.

Bryant’s contention is meritless, in any event. In Commonwealth v. Shoemaker, 226 Pa.Super. 203, 313 A.2d 342 (1973), aff’d on other grounds, 462 Pa. 342, 341 A.2d 111 (1975) the sentencing judge used a pre-sentence report which showed that the defendant had been arrested several times but did not show the disposition of the arrests. In an opinion by Judge Spaeth, this court noted that “there can be no doubt that the sentencing judge not only took into account the record of prior arrests, but regarded it as showing criminal conduct ____ This use of the arrest record was error.” Id., 226 Pa.Superior at 212, 313 A.2d at 347.

“It has been held that a court, in imposing sentence may consider prior arrests ... as long as the court realizes that the defendant had not been convicted on those prior charges.” Commonwealth v. Craft, 304 Pa.Super. 494, 500, 450 A.2d 1021, 1024 (1981). Here President Judge Marrone plainly stated that Bryant had no prior convictions as a result of the arrests. Thus, there was no error at sentencing.

Judgment of sentence affirmed.

      . Appellant herein, Alan Thomas Bryant, was sentenced to a term of imprisonment, payment of a fine and probation as a result of pleading guilty to rape and other offenses; the sentence was given on January 20, 1981. A notice of appeal to this court .was filed on February 19, 1981, within the 30 day period allowed by Pa.R.A.P. 903.

      . In the presentence investigation report filed with the Court there is, under the heading "prior record”, a notation that on March 23, 1976 the Appellant was arrested and charged with criminal attempt, aggravated assault, recklessly endangering another person and criminal conspiracy. The report states that on April 13, 1976 the charges were dismissed because a witness failed to appear for a hearing. The report also notes an arrest on June 7, 1980 for aggravated assault and simple assault and that these charges were dismissed at the preliminary hearing without stating the reason for the dismissal. A copy of the Appellant’s record from the Central Repository, Records and Identification Division of the Pennsylvania State Police was included in the presentence investigation report. This "rap sheet” reflected the arrests of March 23, 1976 and June 7, 1980.
      Brief for Appellant at 5.


author: HOFFMAN, Judge: ROWLEY, Judge,

text:
    458 A.2d 1012
    COMMONWEALTH of Pennsylvania v. Steven BROWN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1983.
    Filed April 15, 1983.

      Howard B. Zavodnick, Philadelphia, for appellant.
    J. William Ditter, III, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in taking judicial notice of the location of a particular interstate highway milepost. Because we find judicial notice inappropriate, and thus, the evidence insufficient to support the court’s jurisdiction, we must reverse the judgment of sentence and order appellant discharged.

On April 26, 1980, appellant was stopped by a Pennsylvania State Trooper on Interstate 76 and cited for speeding and driving with an expired registration. Appellant was found guilty by the District Justice and took a de novo appeal to the Montgomery County Common Pleas Court. At the non-jury trial, the trooper testified that he was positioned at mile post 290 on Route 76 when appellant entered the “zone of influence” of his stationary radar unit and was clocked at 72 miles per hour in a 55 miles per hour zone. Appellant demurred to the Commonwealth case, arguing that it had not been established that he had committed the offense in Montgomery County. The lower court took judicial notice that milepost 290 was in Upper Merion Township, Montgomery County, and found appellant guilty. Following the denial of post-trial motions and the imposition of sentence, appellant took this appeal.

Appellant contends that the lower court erred in taking judicial notice of the location of a milepost on an interstate highway. “The doctrine of judicial notice is intended to avoid the necessity for the formal introduction of evidence in certain cases when there is no real need for it,—where a fact is so well established as to be a matter of common knowledge.” Albert Appeal, 372 Pa. 13, 20, 92 A.2d 663, 666 (1952); Commonwealth v. Varner, 265 Pa. Superior Ct. 329, 331, 401 A.2d 1235, 1236 (1979). See Haber v. Monroe County Vocational Tech. School, 296 Pa. Superior Ct. 54, 60, 442 A.2d 292, 296 (1982) (“so well known in the jurisdiction”); Siravo v. AAA Trucking Corp., 306 Pa. Superior Ct. 217, 220, 452 A.2d 521, 523 (1982) (“so well known and notorious throughout the community”). Courts have properly taken judicial notice of the location within a particular county of cities and towns, see Emert v. Larami, 414 Pa. 396, 200 A.2d 901 (1964) (Perkasie within Bucks County), townships, see Commonwealth v. Kaiser, 184 Pa. 493, 39 A. 299 (1898) (Upper Merion Township within Montgomery County), streets, see Schmidt v. Allegheny County, 303 Pa. 560, 154 A. 803 (1931) (location of highway); Commonwealth v. Bigelow, 250 Pa. Superior Ct. 330, 378 A.2d 961 (1977), aff'd. 484 Pa. 476, 399 A.2d 392 (1979) (“Germantown and Venango” streets within Philadelphia), and public arenas, see Commonwealth v. Varner, supra (Shippensburg Fair Grounds within Franklin County). We cannot agree with the lower court, however, that the exact location of a single milepost on an interstate highway is a proper subject for judicial notice. Although conceivably known by the lower court, the milepost’s location can hardly be said to be “notorious throughout the community,” Siravo v. AAA Trucking Co., supra, or “a matter of common knowledge,” Albert Appeal, supra. Accordingly, the lower court erred in taking judicial notice of the location of the offense. Because the Commonwealth failed to present sufficient evidence of the venue of the offense, we must reverse the judgment of sentence and order appellant discharged.

Judgment of sentence reversed and appellant discharged.

ROWLEY, J., files a dissenting statement.

ROWLEY, Judge,

dissenting:

I respectfully dissent. I would affirm on the opinion of Judge Davenport. In the alternative, I would adopt the principle expressed in F.R.E. 201(b) and affirm the judgment of sentence.

      . Appellant was fined $59 for speeding and $25 for driving with an expired registration.

      . We note that Pennsylvania has not adopted the Federal Rules of Evidence’s alternate basis for judicially noticing facts, i.e., those “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” F.R.E. 201(b).


author: VAN der VOORT, Judge:

text:
    458 A.2d 1013
    COMMONWEALTH of Pennsylvania, Appellant, v. Albert Lee MILLS.
    Superior Court of Pennsylvania.
    Submitted May 13, 1981.
    Filed April 15, 1983.

      Richard B. Russell, District Attorney, Pottsville, for Commonwealth, appellant.
    Joseph P. Semasek, Assistant Public Defender, Pottsville, for appellee.
    Before MONTEMURO, HOFFMAN and VAN der YOORT, JJ.
   VAN der VOORT, Judge:

This is the Commonwealth’s appeal from an order granting appellee’s motion to suppress a statement given by him.

The police had received a report of a possible child beating occurring at a residence shared by appellee and two women and the women’s children. When the police arrived at the premises, appellee answered the door and invited them in. When inside, one officer observed, what appeared to be marijuana cigarettes, in open view laying on a table. Appellant grabbed the cigarettes and ran towards a set of stairs and was apprehended by the police officers.

Appellee was placed under arrest for possession of a controlled substance and was transported to the police station. At this time there was no local district justice on duty. The police decided to postpone arraignment until the following morning. The following morning appellee asked to speak to the officer in charge. Appellee volunteered that he struck the child because the child was taking a seizure. The officer in charge was not previously aware of any pending child abuse investigation involving appellee, but nonetheless he realized that appellee was implicating himself, therefore the officer advised appellee of his Miranda rights.

The investigating officers were informed of appellee’s statement and appellee was also charged with aggravated assault of the child. Appellee was arraigned on both counts approximately twelve (12) hours after he was initially arrested and about three and one-half (3V2) hours after the statement was made.

Appellee filed a pre-trial motion to suppress both the marijuana seized and the statement. The court denied the motion to suppress the marijuana; no appeal was taken from that part of the order. The court did suppress the statement finding that the Commonwealth had violated the “six-hour rule” set forth in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). The Commonwealth here appeals the order suppressing appellee’s admission. It contends that prior to appellee’s statement it had insufficient evidence to prosecute appellee; the prosecution contends but for appellee’s admission, the only evidence linking appellee to the child beating was the mother’s belief that appellee was responsible.

Until recently there has been some uncertainty as to when the Commonwealth may appeal from an order suppressing evidence. However, in Commonwealth v. Lapia, and Commonwealth v. Dugger, 311 Pa.Superior Ct. 264, 457 A.2d 877 (1983), the majority of this court, sitting en banc, held:

When confronted with a Commonwealth appeal from an order suppressing evidence, we must determine for ourselves whether the order is appealable—whether it terminates or substantially handicaps the prosecution; and we must make that determination on the basis of the record, and on that basis alone.

(Opinion at 884). Therefore, we must make an independent review of the record to determine whether suppression will terminate or substantially handicap the prosecution.

We have carefully reviewed the record in this case. Contrary to the Commonwealth’s claim in its brief, our review of the record does not support the claim that suppression will terminate or substantially handicap the prosecution. The record indicates that the police had received a complaint from the child’s mother, Barbara Krusnoski, that appellee had beaten Chanda Krusnoski. (N.T. pp. 8, 27) After appellee had been arrested and taken into custody, at least one officer remained behind to interview Cary Tatum and her two children who shared the residence with appellee and Ms. Krusnoski. The officer then proceeded about a block and a half away, where Krusnoski and her child were located and transported them to the hospital. (N.T. p. 27)

The notes of testimony fail to show the extent of the Commonwealth’s evidence; they are silent as to whether other evidence existed to link appellant to the alleged child beating or as to whether only appellee’s admission could tie appellee to the incident. However, the criminal complaint filed in this case tends to contradict the Commonwealth’s position on appeal. On its face, the complaint indicates that the affiant filed such based on information received from the young victim’s mother and the Tatum children. No mention is made of the suppressed statement. Therefore, under the rule set forth in Lapia, we must reluctantly quash this appeal as there is no demonstration of record to indicate the Commonwealth could not proceed to trial.

In both Lapia and Dugger, the crime charged was possession of a controlled substance. As Judge Spaeth’s lead opinion in Lapia and Dugger indicated:

“It is apparent that the record discloses that in each case the suppression order terminates the prosecution; the Commonwealth cannot prove a defendant’s possession of a controlled substance if it cannot prove that it took the substance from the defendant.”

(Opinion at page 885) This is not to say that suppression orders, in non possessory crimes, may not be appealed; but instead the record in such cases must be more fully developed and explicit as to whether the Commonwealth will be able to proceed. Applying such to the current case, we may only offer conjecture as to the Commonwealth’s reasons for believing the suppressed evidence was necessary to its case. While it may be true, as the appellant would have us infer,

that the victim’s mother’s allegations rested on mere suspicion, such inference outside of the record is inadequate.

Appeal quashed.

      . The record was not developed as to the availability of .a district justice. However, we will accept the Commonwealth’s claim that the police decided against transporting appellee to another district for arraignment. Appellee's position is not prejudiced by our acceptance of this claim, as it shows the police decided to delay the arraignment.

      . Five separate opinions were filed. Judge Spaeth’s lead opinion, from which the above quote was taken, was joined in its entirety, by two other judges, Judge Cavanaugh filed a separate opinion in which Judge Montemuro joined, in which he agreed with Judge Spaeth as to the above standard of review, Judge Wieand, also in a separate opinion, agreed with Judge Spaeth’s opinion in this respect.

      . We have held up decision in this case awaiting the decision in Lapia.

      . We do not mean to imply that the Commonwealth must reveal all of its cards at a suppression hearing, however, under the ruling of Lapia, enough cards must be produced to demonstrate that the prosecution will not have a case if the evidence is withheld from the fact finder at trial.

      . Neketa MacFarland, age 4, and Robert MacFarland, age 8; Chanda Krusnoski was age two.

      . Similarly we might presume that the Commonwealth was concerned about the tender age of one of its potential witnesses, however nothing in the record permits us to make such presumption.


author: PER CURIAM:

text:
    458 A.2d 1016
    Linda DeWALD, Appellee, v. Anthony PAULINE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 1, 1982.
    Filed April 15, 1983.

      Joseph R. Ferdinand, Hazelton, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   PER CURIAM:

We here review an appeal brought by a putative father in a paternity action from an order which denied a petition filed by appellant raising the defense that the applicable statute of limitations had expired. We do not reach the merits of this contention since we decide that the instant appeal must be quashed.

Despite the fact that neither of the parties have raised the issue of whether the order is appealable, we are compelled to address this issue sua sponte. Epstein v. State Farm Insurance Co., 308 Pa.Super. 33, 453 A.2d 1054 (1982); Napet, Inc. v. John Benkart & Sons Co., 288 Pa.Super. 187, 431 A.2d 351 (1981). The jurisdiction of this court is governed by 42 Pa.C.S.A. § 742 which provides as follows:

Section 742. Appeals from courts of common pleas
The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by provision of this chapter within the exclusive jurisdiction of the Supreme Court, or the Commonwealth Court.

A final order is one which ends the litigation, or alternatively, disposes of the entire case. Cassidy v. Keystone Insurance Co., 297 Pa.Super. 421, 443 A.2d 1193 (1982). In contrast, an order is interlocutory and not final unless it effectively puts the defendant “out of court”. Philadelphia National Bank v. Lutherland, Inc., 286 Pa. Super. 48, 428 A.2d 232 (1981).

The order here appealed is interlocutory since it merely dismissed the petition of appellant which raised the statute of limitations, leaving for subsequent determination the issues of paternity and support. Thus, it did not end the litigation. See Bellotti v. Spaeder, 433 Pa. 219, 249 A.2d 343 (1969). Furthermore, the appeal from this interlocutory order is not authorized by law nor was the appeal taken by permission.

Appeal quashed.

      . The appealability of orders in paternity actions is governed by Pa.R.C.P. No. 1910.15(f), 42 Pa.C.S.A.; see Commonwealth ex rel. Wright v. Lacy, 291 Pa.Super. 185, 435 A.2d 630 (1981); Jackson v. Moultrie, 288 Pa.Super. 252, 431 A.2d 1033 (1981); Williams v. Williams, 253 Pa.Super. 444, 385 A.2d 422 (1978).

      . See 42 Pa.C.S.A. § 702(a) and Pa.R.A.P., Rule 311, 42 Pa.C.S.A. (dealing with interlocutory appeals as of right).

      . See 42 Pa.C.S.A. § 702(b) and Pa.R.A.P., Rules 312, 1301-23 (interlocutory appeals by permission).


text:
    458 A.2d 1017
    Susan M. BURY v. Theodore A. BURY, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1983.
    Filed April 15, 1983.

      Charles Edward Kurowski, Canonsburg, for appellant.
    Howard Goldfarb, Washington, for appellee.
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   PER CURIAM:

The parties were married in 1976. One child, Rachael Marie Bury, born May 5, 1977, resulted from the marriage. By a final decree dated February 26, 1979, the parties were divorced. The parties entered into a consent order on November 27, 1979, regarding custody of Rachael. Appellee-mother was given permanent custody. Appellant-father was awarded the right of visitation with Rachael from Sunday morning to Monday morning, to occur every week. The father was also to have the child for two weeks of his vacation and on Christmas day from 12:00 noon until 6:00 P.M.

[1,2J On November 19, 1981, the father filed a petition to increase and modify the above visitation agreement. Appellant sought: Christmas visitation, to alternate between Christmas eve and Christmas day; visitation on Father’s Day, and alternating holidays; split visitation on Rachael’s birthday and visitation for four hours, twice during the week depending on his work schedule. After a hearing the court entered an order continuing the custody arrangement established in November 1979, with the following additions. The father was to have visitation rights for three hours, one day during the week. The child was to spend alternate holidays with her parents. Father’s Day was to be spent with appellant. Appellant here appeals from the above modified visitation order.

In a visitation proceeding, as in one for custody, the singular concern is the interest and welfare of the children involved. See, Commonwealth ex rel. Barbara M. v. Joseph M., 286 Pa.Super. 51, 428 A.2d 567 (1981); Rozanski, 206 Pa.Super. [397] at 399-400, 213 A.2d [155] at 156. This standard applies equally to instances where visitation is modified. See, Wick v. Wick, 266 Pa.Super. 104, 403 A.2d 115 (1979). For that reason:
In cases of child custody and visitation our scope of review is broad and requires independent examination of the evidence before reaching our conclusion ... Nor need we accept a finding which has no competent evidence to support it, “[we must] make an independent judgment based on the evidence and testimony and make such order on the merits of the case as to do right and justice.”
Spells [v. Spells], 250 Pa.Super. [168], 175-76, 378 A.2d [879], 883 [(1977)] (citations omitted).

In Re Stuck, 291 Pa.Superior Ct. 61, 63, 435 A.2d 219 (1981). See also, Hoffer v. Hoffer, 301 Pa.Superior Ct. 289, 447 A.2d 972 (1982).

Only the mother and the father testified at the hearing below. Appellant-father’s testimony was that due to his work schedule he needed and desired more time with Rachael. He worked rotating shifts with alternating days off. Appellee-mother expressed her concern that additional visitation during the week would be a disruptive influence to the child and would result in additional deviations in discipline. The lower court summarized the testimony in similar terms, discounted the mother’s fears and found that due to Rachael’s young age only one additional mid-week visitation should be granted. Appellant here raises a number of contentions.

A number of the issues raised in appellant’s brief either do not apply to the current situation, or else, have been resolved by the court in favor of appellant. Reference is made to a county policy of visitation on an alternate weekend basis; no where is it explained what relevance it has here. Both the consent agreement and the modified order provided for visitation from Sunday morning to Monday morning, every week. Demand is made for visitation on alternating holidays; such was granted. Visitation is requested for two summer weeks; such was part of both orders. Appellant requests provision for additional time, if the parties can agree to such; the order appealed from provided for additional visitation by agreement. Much emphasis is placed upon appellant’s variable work week, yet the court provided that the mid-week visitation could be changed upon twenty-four hours notice, to accommodate appellant’s work schedule.

The first issue devolves itself into whether the court erred in only increasing visitation by one mid-week three hour period.

We recognize that in matters such as the hours of a visitation, great deference should be given to the hearing judge, who is in a better position than we to assess the particular circumstances. However, we must also recognize that to fulfill our own responsibility, we should not accept a finding that is not supported, or is contradicted, by the record.

Scarlett v. Scarlett, 257 Pa.Superior Ct. 468, 473, 390 A.2d 1331 (1978). The record here supports the lower court’s award. The court had to weigh and balance the child’s need for stability, Commonwealth ex Rel. Newcomer v. King, 301 Pa.Superior Ct. 239, 447 A.2d 630 (1982) and the father’s desire to spend more time with his daughter. At the close of the testimony the lower court noted the difficulty of “formulating some kind of a plan that would satisfy both parents.” (N.T., p. 31)

Instantly, the record establishes that expanded visitation would be in the best interest of Rachael. The court heard testimony regarding the effects upon the child of the shifting back and forth between the parents. The court also listened to how the father and mother differed in their views of such effects. The court then went on to resolve such conflict by limiting increased visitation to one night a week. Our review of the record supports such resolution and therefore we will not disturb it. Compare Hoffer v. Hoffer, supra, (record supports finding that father is able to spend time with son during week); In Re Stuck, supra, (record supports finding that expanded visitation will be in best interest of child); and Scarlett v. Scarlett, supra, (record did not support refusal of weekend visitation).

Two other aspects of this case remain to be addressed: Christmas and birthday visitation. While the court continued split visitation on Christmas day, it did not explicitly address appellant’s claim for alternating full day visitation between Christmas eve and Christmas day. The court also did not make any provisions for Rachael’s birthday. Appellant sought visitation for both occasions in his petition, and raised both in his statement of matters, filed pursuant to Pa.R.A.P., Rule 1925(b). Therefore, we find it necessary to remand to the lower court to address both.

Unfortunately in many custody and visitation situations, hostility and uncooperation override the parents’ mutual concern for the child. Such is not the case here. The record reflects that the parties have cooperated, to some extent, in maintaining Rachael’s relationship with her father; appellant has only reverted to the courts in an attempt to define the time perimeters of that relationship. (N.T., pp. 9-10) Therefore upon remand the court may wish to persuade the parties to enter into a consent order concerning Christmas and the child’s birthday. If the parties are unsuccessful, then the court shall enter an appropriate visitation order. We do not retain jurisdiction.

The case is remanded for the entry of an appropriate visitation order.

POPOVICH, J., concurred in the result.

      . As visitations orders are temporary in nature, the lower court retains jurisdiction on a continuing basis. Scarlett, supra; Stuck, supra.

      . Appellant has invoked the Custody and Grandparents Visitation Act, 23 P.S. 1002, as providing for shared custody. As he does not seek shared custody but an extension of visitation, we need not discuss the Act.


text:
    458 A.2d 1020
    Lewis Robert SHAFFER v. Cathy Ann GAAL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 13, 1983.
    Filed April 15, 1983.

      Richard J. Bedford, Somerset, for appellant.
    David Jeffrey Flower, Assistant District Attorney, Somerset, for appellee.
    Before CERCONE, President Judge, and POPOVICH and VAN der VOORT, JJ.
   PER CURIAM:

Appellant-mother and appellee-father are the natural parents of Rebecca Ann Gaal, born August 4, 1975; the parties were never married. Rebecca resided with her mother from birth until July 2, 1981; the father had visitation rights. On July 2, 1981, appellee-father took actual custody of Rebecca and filed a petition to gain legal custody. By order dated July 7, 1981, the father was given temporary custody pending the outcome of an evidentiary hearing to be held on July 20, 1981. After such hearing, Rebecca was interviewed in chambers. The court ordered an investigation of the parties to be conducted by a juvenile probation officer. By order dated June 3, 1982, Rebecca was placed in the custody of her father. The report of the probation officer was “filed for record” on July 26, 1982. Appellant-mother here appeals from the grant of custody to appellee-father.

Appellant first complains that the hearing court impermissibly relied upon the probation officer’s report, prepared subsequent to the hearing. Due process prohibits the use of reports in contested custody cases unless the author of such is produced, sworn and subjected to examination and cross-examination. Palmer v. Tokarek, 279 Pa. Superior Ct. 458, 421 A.2d 289 (1980); Wood v. Tucker, 231 Pa. Superior Ct. 461, 332 A.2d 191 (1974). Appellee contends that any information contained in such report “only confirmed” testimony taken at the hearing and the court only “refers to it sparingly in its opinion.” We disagree with appellee’s assessment and are required by due process to return this matter to the trial court.

The court’s opinion was filed on July 26, 1982, subsequent to its “Memorandum Order” filed June 3, 1982. A reading of such order makes it absolutely clear that the above investigation did have a substantial influence upon the court’s determination. The order in pertinent part reads:

At the conclusion of the hearing, we allowed the child to remain with the father in the child’s paternal grandparents’ home with liberal visitation in the [Appellant] with the provision that the visitation should not take place in the company of [the mother’s fiance] one Donald Adams. The investigation by the Probation Department, indicates that despite the condition in the Visitation Order, Donald Adams continued to be present at visitation.
Recent investigation has further revealed that the Respondent has been keeping company with a known criminal who has just recently been apprehended. Under all the circumstances of this case, including the testimony and investigation, we are of the opinion that the custody of this child should remain with the father subject to controlled visitation by the mother.

“Although there may have been sufficient evidence of record to justify the court’s finding, the denial of access to appellant of information relevant to the trial court’s decision is violative of the process due to all litigants”, Wood v. Tucker, 231 Pa. Superior Ct. at 464, 332 A.2d 191. Because of this violation of due process, we must vacate the order of the lower court and remand for a reconsideration of appellee’s petition. The court shall also hear and consider any evidence the parties wish to offer reflecting upon circumstances as they presently exist. Proceedings on remand should take place “with utmost dispatch.” In the Interest of LaRue, 244 Pa. Superior Ct. 218, 235, 366 A.2d 1271, 1280 (1976). Any party aggrieved by the lower court’s final resolution may file a new appeal with this Court. See, In Re Donna W., 284 Pa. Superior Ct. 338, 349-50, 425 A.2d 1132, 1137-38 (1981).

Order vacated and case remanded for proceedings not inconsistent with this opinion. We do not retain jurisdiction.

      . On the basis of references to such report made in the order of June 3, 1982, it is clear that the report was submitted to the court prior to the issuance of the order. Whether such investigation delayed the court’s order is unclear. Nonetheless, the more than ten (10) month delay between hearing and order is inordinate and will not be condoned.

      . Due to our resolution of this appeal, we do not at this time address the substantive merits of the parties' positions.


author: WIEAND, Judge:

text:
    458 A.2d 1021
    Edmund J. ZITZELBERGER t/d/b/a Zitzelberger Realtors v. Harry J. SALVATORE and Margaret M. Salvatore, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1982.
    Feb. 25, 1983.
    Reargument Denied May 9, 1983.,
    Petition for Allowance of Appeal Denied Oct. 13, 1983.

      Thomas F. Morgan, Clearfield, for appellants.
    Timothy E. Durant, Clearfield, for appellee.
    Before CERCONE, President Judge, and WIEAND and BECK, JJ.
   WIEAND, Judge:

Where improved real estate is sold by a broker but the improvements are destroyed by fire prior to final settlement and the seller voluntarily releases the buyer from further obligation under the contract of sale, is the broker entitled to recover his commission for effecting the sale? The trial court held that the broker was entitled to recover a commission and refused to enter judgment n.o.v. for the seller after a jury had returned a verdict in favor of the broker. We affirm.

The principle is well established that a real estate broker becomes entitled to his commission when he or she presents a purchaser who is ready, willing and able to purchase the property upon terms satisfactory to the seller. Dixon Estate, 426 Pa. 561, 563 n. 2, 233 A.2d 242, 244 n. 2 (1967); Sork v. Rand, 422 Pa. 512, 517, 222 A.2d 890, 893 (1966); Kizer and Associates, Inc. v. Naylor, 254 Pa.Super. 143, 145, 385 A.2d 566, 567 (1978); Shumaker v. Lear, et al., 235 Pa.Super. 509, 512, 345 A.2d 249, 251 (1975); White Realty and Insurance Agency Co. v. Moreland et ux., 215 Pa.Super. 423, 427, 259 A.2d 461, 463 (1969). When a buyer defaults after an agreement has been fully executed and the seller, instead of enforcing the sales agreement, releases the buyer and agrees to rescind the contract, the broker who procured the purchaser is nevertheless entitled to be paid his commission. Realty Investments, Inc. v. Harris, et al., 166 Pa.Super. 211, 70 A.2d 427 (1950); Advance Realty Co. v. McLeod, 84 Pa.Super. 558, 560-561 (1925). See: Annot., 74 A.L.R.2d, 437, 459-460 (collecting cases). See also: Shumaker v. Lear, supra 235 Pa.Super. at 513, 345 A.2d at 251; White Realty and Insurance Agency Co. v. Moreland, supra (whether purchaser is able, ready, and willing to consummate the purchase on the day set for settlement is immaterial to the broker’s right to a commission in the absence of fraud).

The general rule is that a purchaser must bear any loss to the property caused by fire after the contract to purchase has been executed and before delivery of the deed. See: DiDonato ex ux. v. Reliance Standard Life Insurance Co., 433 Pa. 221, 224, 249 A.2d 327, 328 (1969); Synes Appeal, 401 Pa. 387, 391, 164 A.2d 221, 223 (1960); Rappaport v. Savitz, 208 Pa.Super. 175, 177, 220 A.2d 401, 403 (1966). The purchaser becomes equitable owner of the land upon execution of the contract; the seller retains legal title merely as security for payment of the unpaid purchase money. DiDonato et ux. v. Reliance Standard Life Insurance Co., supra; Payne v. Clark, 409 Pa. 557, 561, 187 A.2d 769, 770 (1963); Spratt v. Greenfield et al., 279 Pa. 437, 124 A. 126 (1924); Yannopoulos v. Sophos, 243 Pa.Super. 454, 459, 365 A.2d 1312, 1314 (1976); Byrne et ux. v. Kanig, 231 Pa.Super. 531, 535, 332 A.2d 472, 474 (1974). In cases where improvements are destroyed by fire prior to final settlement, the seller holds in trust for the purchaser the proceeds of any policy of fire insurance owned by the seller at the time of the loss. Insurance Co. of North America v. Alberstadt, et al., 383 Pa. 556, 559-560, 119 A.2d 83, 85 (1956); Dubin Paper Co. v. Insurance Co. of North America et al., 361 Pa. 68, 63 A.2d 85 (1949); Dominski v. Garrett, 276 Pa.Super. 18, 27, 419 A.2d 73, 77 (1980).

[61 These general principles, when applied to the facts of this case, make it abundantly clear that the appellee-broker was entitled to recover his commission from the appellant-seller. Appellee earned his commission when he produced a purchaser with whom appellant entered a written contract to sell improved real estate in Pike Township, Clearfield County. When the improvements were destroyed by fire, the risk of loss was upon the purchaser and he remained obligated to accept title to the real estate and pay the seller the unpaid balance of the purchase price. However, the buyer was entitled to receive the insurance proceeds, if any, recovered by the seller pursuant to any policy of fire insurance which the seller owned and which covered the improvements on the land sold. A seller, under these circumstances, cannot defeat the broker’s right to be paid a commission by voluntarily rescinding the sales agreement and releasing the buyer from further liability thereon.

Appellant concedes that this is the present state of the law but contends that the law unduly favors the real estate broker and should be changed. He argues that where the buyer is unable to close the transaction through no fault of the seller the broker should not be entitled to receive a commission, that the loss of a commission under such circumstances should be borne by the broker as a hazard of the real estate business. This view, which has beén adopted by a growing minority of jurisdictions, conditions the broker’s right to a commission upon his finding a purchaser who actually closes the transaction by paying the agreed purchase price. See: Harrin v. Brown Realty Co., Inc., 226 Kan. 453, 602 P.2d 79 (1979); Wyand v. Patterson Agency, Inc., 271 Md. 617, 319 A.2d 308 (1974); Cornett v. Nathan, 196 Neb. 277, 242 N.W.2d 855 (1976); Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 236 A.2d 843 (1967); Setser v. Commonwealth, Inc., 256 Or. 11, 470 P.2d 142 (1970); Gibson Bowles, Inc. v. Montgomery, 51 Or.App. 313, 625 P.2d 670 (1981). See also: 72 Dick.L.Rev. 522 (1968).

This minority view is not consistent with the present state of the law in Pennsylvania. If the rule of law is to be changed, it must be done by the Supreme Court. Meanwhile, we are not at liberty to disregard well established legal principles in favor of flight into unprecedented and novel solutions to existing disputes. Moreover, there is no compelling reason to fashion a new rule in order to decide the instant case. Here, the evidence failed to establish that the purchaser of appellant’s real estate was financially unable to close the transaction. Although he failed to purchase fire insurance protection, as he was required to do by the provisions of the sales agreement, there is no evidence that he lacked or was unable to obtain the resources to complete the purchase. He would also have been entitled to receive from appellant any moneys recovered by appellant by virtue of the insurance coverage maintained on the property.

Appellant contends also that a broker’s right to a commission may be defeated by his negligence in failing “to make certain that the buyer has secured insurance as contracted.” He argues in this case that the trial court erred by refusing to submit the broker’s alleged negligence to the jury in accordance with requested written instructions. There is no merit in this contention. The broker was appellant’s agent. See: Eckrich v. DiNardo, 283 Pa.Super. 84, 90, 423 A.2d 727, 729 (1980); Trott v. Hild, 190 Pa.Super. 85, 91, 151 A.2d 832, 835 (1959); Seligson v. Young, 189 Pa.Super. 510, 513, 151 A.2d 792, 794 (1959). It was with appellant that the broker had executed a contract of agency. That contract of agency authorized appellee to “sell” the real estate. It imposed upon the broker no obligation to guarantee that the buyer would perform faithfully the duties and obligations imposed upon him by the agreement of sale. If the agency contract imposes no such duty, we fail to perceive any good reason for creating a duty in law requiring a seller’s agent to guarantee performance by a third person buyer.

The judgment is affirmed.

      . The policy of fire insurance maintained by appellant was wrongfully cancelled by the broker who handled appellant’s insurance business after the agreement of sale had been executed. Because the insurance broker acted negligently and without authority, appellant recovered the sum of $40,000.00 from his agent’s errors and omissions liability carrier. This was determined to be the loss sustained by appellant after he had re-sold the real estate for $13,000.00.


author: ROWLEY, Judge:

text:
    458 A.2d 1356
    COMMONWEALTH of Pennsylvania v. John FARRIOR, Appellant.
    Superior Court of Pennsylvania.
    Argued May 5, 1982.
    Filed March 4, 1983.
    Reargument Denied May 16, 1983.
    Petition for Allowance of Appeal Denied Aug. 23, 1983.

      Daniel M. Preminger, Philadelphia, for appellant.
    Mark S. Gurevitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   ROWLEY, Judge:

Appellant was convicted, on October 10, 1980, after a jury trial, of murder in the first degree and possession of an instrument of crime. Post-trial motions for a new trial and arrest of judgment were denied and appellant was sentenced to life imprisonment on the murder conviction and to a consecutive sentence of not less than two and one-half (2V2) nor more than five (5) years imprisonment on the possession charge. This direct appeal followed.

Three issues are raised on appeal in support of appellant’s motion for a new trial. Appellant argues that: 1) the trial court erred in admitting into evidence the victim’s statements to police made at the scene of the crime; 2) the trial court erred in,admitting into evidence the victim’s response in the hospital two weeks after the crime to a police officer’s questions; and 3) the trial court erred in ruling that appellant and his proposed character witnesses could be cross-examined concerning (a) appellant’s 1966 arrest for wantonly pointing a firearm, threats, and breach of the peace, and (b) his 1961 conviction for assault. Appellant has not pursued his motion in arrest of judgment on appeal.

On appeal from an order of the trial court denying an appellant’s motion for a new trial, our review is limited to a determination of whether there has been an abuse of discretion or an error of law on the part of the trial court. In the absence of either of these elements, the order denying a new trial will not be disturbed. Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978), Commonwealth v. Morales, 458 Pa. 18, 326 A.2d 331 (1974). We have concluded that the trial court’s ruling relative to the cross-examination of appellant’s proposed character witnesses constituted prejudicial error. The case must therefore be remanded for a new trial. We have, however, addressed appellant’s remaining issues since they are likely to recur.

I.

On June 1, 1979, at approximately 8:35 PM, Officer Winfred Hunter of the Philadelphia Police Department arrived at the northwest corner of 26th and Haggert Streets in Philadelphia in response to a radio call. He found the victim, James Fanning, lying in a pool of blood on the steps of a building. When asked what had occurred, Mr. Fanning stated that he had been shot by appellant. At about the same time, Officer Gerald Nimmo arrived on the scene. He also was told by the victim that he had been shot by appellant. Appellant’s counsel objected at trial to the statements identifying appellant as Fanning’s assailant on the ground that they were hearsay. The trial court overruled appellant’s objection and admitted the statements into evidence, ruling that they constituted excited utterances within the scope of the res gestae exception to the hearsay rule.

To constitute an excited utterance, a statement must be “a spontaneous declaration by a person whose mind has been suddenly made subject to an over-powering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties”. Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942). There is no doubt that being shot, as was Mr. Fanning, is a sufficiently shocking event. Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975). His statements were made at the scene approximately ten minutes after the shooting and were related to the incident. The victim was trembling, bleeding, in pain and had difficulty communicating. The mere fact that the statements were made in response to questions does not preclude their being spontaneous. Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1973). Thus, the trial court properly ruled that the statements were admissible under the res gestae exception to the hearsay rule.

II.

Appellant also claims that the court erred in overruling his objection to testimony concerning the victim’s response to a detective’s inquiry approximately two weeks after the shooting. On the night of June 16, 1979, Detective Edward Gallagher received a call from a registered nurse at the Women’s Medical College Hospital informing him that Mr. Fanning was expected to die in a short period of time. Detective Gallagher went to the hospital where he found the victim conscious, but unable to speak because of a tube in his throat. The detective asked the victim to respond to questions by nodding his head yes or no. Detective Gallagher then informed Mr. Fanning that he was going to die. He asked the victim if appellant had shot him, to which the victim nodded yes. Mr. Fanning died six hours later. This response of the victim identifying appellant as his assailant was admitted by the trial court as a dying declaration and thus admissible as another exception to the hearsay rule.

A statement of the declarant’s own observations is admissible as a dying declaration if, at the time it was made, the declarant believed he would die, that his death was imminent, and death actually ensued. Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980). In this case, Mr. Fanning died and his death was “imminent” when he was questioned by Detective Gallagher. Moreover, his response to the question was based on his own observation of appellant and was not the product of surmise or conjecture. The admissibility of such evidence, however, “depends primarily upon the state of the declarant’s mind”. Commonwealth v. Smith, 454 Pa. 515, 518, 314 A.2d 224, 225 (1973) (citations and quotation omitted). There is sufficient evidence in the record in this case to establish that Mr. Fanning believed he was dying.

While at the victim’s bedside in the hospital, Detective Gallagher asked a series of twelve questions to ascertain if the victim comprehended his situation. Although the victim could not speak, his action of nodding his head was responsive to Detective Gallagher’s questions and showed an understanding of who he was and where he was and what had happened to him on June 1st. Included in Detective Gallagher’s testimony concerning his meeting with the victim approximately six hours before the victim’s death, was the following passage:

“Do you know why you’re here in the hospital?
And he nodded, yes.
I have been told that you are in very critical condition.
Do you understand?
He nodded, yes.
You’re going to die tonight. Do you understand?
He nodded, yes.

During the series of questions the victim openly wept. He was in the intensive care unit of the hospital and was connected to several machines. He was aware that he had been seriously wounded by a shot in the abdomen which he believed had paralyzed him. He subsequently died of kidney failure and gastrointestinal hemorrhaging which were directly related to the gunshot wound. The trial court in concluding that Mr. Fanning’s identification of appellant as his murderer constituted a dying declaration, applied the correct legal principles to the uncontradicted testimony. Thus, the court did not err in overruling appellant’s objection at trial to the testimony by Detective Gallagher.

III.

Appellant’s final argument is that the trial court erred in ruling that the credibility of appellant and his proposed character witnesses could be attacked by cross-examination concerning his 1966 arrest, which did not result in a conviction, and his 1961 conviction for assault.

At trial, after the Commonwealth had rested its case in chief, the jury was excused for the day and a side-bar discussion ensued during which appellant’s counsel informed the court that he intended to call a number of character witnesses on behalf of the appellant who would-testify that he was “known to have a good reputation and to be a law-abiding citizen.” Appellant’s counsel requested á ruling from the court on whether the witnesses, if called, could be cross-examined by the District Attorney concerning a 1966 arrest of appellant for wantonly pointing a firearm, threats and breach of the peace, as well as a 1961 conviction for assault. The court ruled that the witnesses could be cross-examined about the arrest and the conviction and that the District Attorney would be “limited strictly to this dealing with the big issue as to law-abiding citizen because that’s what they would so testify to.” Following the court’s ruling, counsel for appellant stated:

I see. Accordingly, since Your Honor has indicated or ruled if I may say, you would permit the introduction of those two items [1966 arrest; 1961 conviction] that Mr. Maraño [District Attorney] referred to, I choose not to call any character witnesses because I feel that Your Honor’s ruling will so prejudice the defendant and deprive him of his right to have a jury hear testimony of his reputation for good character and honesty, but without the introduction of the cross-examination I feel that since these matters are so remote, that they should not be submitted to the jury if the defendant is called, (emphasis added).

The reference found in the latter part of this statement concerning the possibility of appellant taking the stand in his own defense was the first and only indication during the entire side-bar discussion that appellant might testify. The next day when appellant presented his defense, no character witnesses were called on his behalf and his case in chief consisted solely of the testimony of his wife, Eule Farrior, who was not present at the time of the shooting. His wife’s testimony related only to events that occurred when appellant was first arrested on the night of the shooting and again following Mr. Fanning’s death. At the conclusion of Mrs. Farrior’s testimony, the appellant rested his case and stated to the trial court on the record that he did not desire to testify and that his decision in that regard had been made voluntarily.

The Commonwealth argues on appeal that the issue of what prior crimes could be used to impeach appellant had not been preserved for appellate review since no Bighum hearing was ever requested by the appellant or conducted by the trial court. It is the Commonwealth’s contention that the side-bar discussion which occurred at the conclusion of its case in chief concerned only the testimony of the proposed character witnesses, and that no request was made of the trial court by appellant’s counsel for a specific ruling on what prior convictions appellant, if he testified, could be cross-examined about by the District Attorney. In light of the above statement by appellant’s counsel, we are not entirely certain that a Bighum hearing was not requested by appellant, nor that the issue, as it relates to appellant’s testimony, has not been preserved for appellate review. Compare Commonwealth v. Bryant, 247 Pa.Super. 386, 372 A.2d 880 (1977). However, because of our disposition with respect to the court’s ruling concerning the character witnesses, we need not reach the merits of appellant’s Bighum claim.

a.

With respect to the court’s ruling concerning the cross-examination of appellant’s proposed character witnesses, we will first consider whether the character witnesses could be questioned concerning their knowledge of appellant’s 1961 conviction for assault, which occurred nineteen (19) years prior to this trial. Appellant proposed to call eleven character witnesses; one had known appellant for three years, one had known him for five years, five had known him for eight years, and two had known him in excess of nineteen years. It was not specified on the record how long the other two proposed witnesses had known appellant.

This court considered the same issue in Commonwealth v. Mayfield, 262 Pa.Super. 96, 396 A.2d 662 (1978). In Mayfield, the defendant alleged that the trial court erred in permitting the Commonwealth to cross-examine his character witness, who had known him for two years, concerning a conviction which had occurred eleven years before the trial. Three judges concluded that such cross-examination was proper. The other three members of the court, however, concluded that the conviction was too remote in time to have any bearing on the credibility of the witness, especially since she had only known the defendant for two years.

In this case, appellant’s assault conviction occurred nineteen years prior to trial. With respect to the witnesses who had known appellant for substantially shorter periods of time, we are of the opinion that the impeachment value of questions concerning the conviction would be negligible and would be overwhelmingly outweighed by their prejudicial effect. With respect to the two character witnesses who had known appellant at the time of the conviction, however, such questions would have been proper because the conviction was related to the length of time concerning which the witnesses would testify. See generally Michelson v. U.S., 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). Therefore, the trial court’s ruling, as it related to the two character witnesses who had known appellant at the time of the conviction was correct. As to the other proposed witnesses, however, the ruling was erroneous.

b.

Appellant also argues that the court erred in ruling that the Commonwealth would be permitted to cross-examine his proposed reputation witnesses concerning his arrest fourteen (14) years prior to trial, which arrest did not result in a conviction. At trial, appellant’s objection to the proposed cross-examination was made on the basis that the arrest was too remote in time to be material on the issue of the witnesses knowledge of appellant’s reputation. He now argues, however, that the decision of the Pennsylvania Supreme Court in Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), decided subsequent to his trial, prohibits such cross-examination and that he is therefore entitled to a new trial at which the proposed reputation witnesses may be called to testify without being cross-examined regarding his prior arrest.

The Commonwealth argues that since appellant only objected to the proposed cross-examination on the ground that the arrest was too remote in time, he has not preserved for appellate review the specific objection to such questioning that formed the basis of the court’s subsequent decision in Commonwealth v. Scott. It is also argued that Scott is “not of constitutional dimension and therefore is only of prospective effect.”

The Commonwealth, in support of its claim that the appellant’s present argument concerning the “arrest” has not been preserved, relies on four cases decided by our Supreme Court. The cases cited, however, do not support the Commonwealth’s argument in this regard. Commonwealth v. Berrios, 495 Pa. 444, 434 A.2d 1173 (1981) and Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979), do not involve a situation like the present one. In those cases no change in the law was involved. In Commonwealth v. Baylis, 477 Pa. 472, 384 A.2d 1185 (1978), while it involved a change in the law, or more precisely the recognition by the courts of a new claim, the per curiam opinion for the majority states that the new claim was recognized by the Supreme Court some two months prior to the defendant’s filing of a suppression motion in which the issue was not raised. In Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905 (1981), the final case relied on by the Commonwealth, the defendant raised the specific objection in the trial court that was later recognized as being valid by the Supreme Court. In that case, the Supreme Court held that, in both civil and criminal cases, a party is entitled to the benefit of changes in the law which occur while his or her case is pending on direct appeal. Moreover, no reference was made to any distinction between evidentiary and constitutional rulings. As the Court stated, “Certainly fairness demands that relief be granted not only in the first case which successfully contests a rule of law but in all other cases pending on direct appeal which suffer from the same infirmity.” Id., 494 Pa. at 385, 431 A.2d at 908. See also Commonwealth v. Steward, 276 Pa.Super. 64, 419 A.2d 96 (1980).

In this case, appellant objected at trial to the admissibility of any evidence by way of cross-examination concerning his fourteen (14) year old arrest. Since the Supreme Court at that time had not yet ruled that arrests which did not subsequently become convictions were inadmissible for such use, appellant had no more reason to raise that specific objection than did the trial court to consider it. Therefore we are satisfied that the issue may be appropriately considered on review. We hold that appellant is entitled to the benefit of the Supreme Court’s decision in Scott which was decided while his case was pending before this Court on direct appeal. A similar result was reached by our Court in Commonwealth v. Hankerson, 298 Pa.Super. 194, 444 A.2d 727 (1982).

c.

Having determined that Scott is controlling and that the trial court erred in ruling that appellant’s proposed character witnesses could be cross-examined about his 1966 arrest and his 1961 conviction, we must next consider whether the errors which occurred were harmless. In making this determination we are guided by the standard set forth in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978):

Although this Court has previously held that an error involving state law may be harmless, our cases have not articulated a consistent standard for determining whether an error is harmless. In order to eliminate any confusion which may exist, we hold that the proper standard for determining whether an error involving state law is harmless is the same as the standard this Court applies to federal constitutional error: an error can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless.
Having articulated the proper standard of proof in determining whether an error is harmless, we must now address the proper definition of harmlessness, for any theory of harmless error must include both the standard of the degree to which an appellate court must be convinced that an error is harmless and the definition of harmlessness. We adopt the standard that an error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict. Whenever there is a “ ‘reasonable possibility’ ” that an error “ ‘might have contributed to the conviction,’ ” the error is not harmless. Id., 476 Pa. at 405-6, 409, 383 A.2d. at 162, 164. (footnotes and citations omitted).

The burden of establishing that the errors in this case were “harmless” fell on the Commonwealth since it was the beneficiary of the trial court’s rulings. Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Commonwealth v. Story, supra. At trial, the Commonwealth called fifteen witnesses to testify during its case in chief. Three of those witnesses, Officer Winfred Hunter, Officer Gerald Nimmo and Detective Edward Gallagher, testified the victim, James Fanning, had independently indicated to each of them, either in response to a question or as a spontaneous declaration, that the appellant had fired the shot that struck him. Although no one else, other than the victim, claimed to be an eyewitness to the attack by the appellant, three Commonwealth witnesses, Mayme Williams, Julius Blassingale and Otis Wells, placed the appellant at the scene of the crime immediately prior to the shooting. Those witnesses each testified that they saw the appellant sitting in his car with a gun seconds before the shot which killed James Fanning was fired. Testimony was also introduced concerning the subsequent discovery by the police of a gun hidden in appellant’s car which ballistic tests indicated could have been the murder weapon. There was also testimony from a Detective Daniel Lynch that appellant stated “Dammit, he died” upon being arrested for Fanning’s murder. In the face of this undeniably strong evidence against him, the appellant presented one witness, his wife. In her testimony she disputed only two of the Commonwealth’s assertions: 1) that a gun was found in her husband’s car the night of the shooting, and 2) that her husband said “Dammit, he died” on being told of Fanning’s death. No other witnesses testified on appellant’s behalf, consequently the majority of the Commonwealth’s case against the appellant remained uncontradicted. The appellant’s decision not to call any of his proposed character witnesses, made as a result of the trial court’s erroneous rulings that the appellant’s proposed character witnesses could be cross-examined about his 1966 arrest and his 1961 conviction, significantly affected his case in chief. In effect the trial court’s rulings denied appellant the use of a major portion of his defense.

It has long been the law that a defendant in a criminal trial may introduce evidence of his own good character in order to attempt to convince the trier of fact of his innocence. Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1971); McCormick on Evidence, § 191 (2d ed. 1972). As our Court stated in Commonwealth v. Padden, 160 Pa.Super. 269, 275, 50 A.2d 722, 725 (1947):

Evidence of good character is substantive and positive evidence, not a mere make-weight to be considered in a doubtful case, and, according to all our authorities, is an independent factor which may of itself engender a reasonable doubt or produce a conclusion of innocence. Hanney v. Com., 116 Pa. 322, 9 A. 339; Com. v. Cleary, 135 Pa. 64, 19 A. 1017; Com. v. Chester, 77 Pa.Superior Ct. 388. To be sure, it is to be considered with all the other evidence in the case. Com. v. Dingman, 26 Pa.Superior Ct. 615. But it is not to be measured with or by other evidence. Its probative value, its power of persuasion, does not depend upon, and is not to be measured by, or appraised according to, the might or the infirmity in the Commonwealth’s case. Hanney v. Com., supra. Even though, under all the other evidence a jury could reach a conclusion of guilt, still if the character evidence creates a reasonable doubt or establishes innocence a verdict of acquittal must be rendered. Com. v. Cate, supra [220 Pa. 138, 69 A. 322],

Consequently, the evidence that the proposed character witnesses would have presented concerning appellant’s law abiding reputation, if believed by the jury, may have created a reasonable doubt as to his guilt of the crime charged. Thus, we cannot say that the trial court’s ruling which resulted in the appellant’s decision not to call his character witnesses did not effect the outcome of the case. There is a reasonable possibility that the erroneous rulings might have contributed to the appellant’s conviction for first degree murder. Therefore, the error was not harmless beyond a reasonable doubt and a new trial is required. In this case, because the presentation of the character evidence was almost the appellant’s entire defense, a new trial is mandated.

Sentence vacated and case remanded for a new trial.

Jurisdiction is relinquished.

      . 18 Pa.C.S. § 2502(a).

      . 18 Pa.C.S. § 907(a).

      . We have, however, reviewed the record and find that the evidence is sufficient to support the jury’s verdict.

      . Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973).

      . In Commonwealth v. Story, supra, our supreme court was called upon to consider whether a trial court’s erroneous ruling was prejudicial to the appellant’s case in that it caused certain evidence to be admitted. In the case at hand, we are called upon to consider whether the trial court’s erroneous rulings were prejudicial to the appellant’s case in that they caused certain evidence, i.e. testimony from proposed character witnesses, to be excluded. Although the determination we must make differs from that found in Commonwealth v. Story, supra, our standard of review does not. Compare Commonwealth v. Darby, 473 Pa. 109, 373 A.2d 1073 (1977).

      . The bullet which was recovered from the victim’s body was too "distorted” to positively identify it as having been fired from the appellant's gun. The ballistic expert who testified for the Commonwealth could only offer his opinion that the bullet which killed James Fanning was "most probably” fired from a gun which was the same make and type as that found in appellant’s car.