author: SPAETH, President Judge: CIRILLO, Judge,

text:
    491 A.2d 132
    COMMONWEALTH of Pennsylvania v. Richard Allen SPOTTS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted February 24, 1984.
    Filed March 29, 1985.

      Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CIRILLO and CERCONE, JJ.
   SPAETH, President Judge:

This is an appeal from judgment of sentence for criminal attempt (escape) and possession of implements of escape. Appellant’s principal argument is that his trial counsel was ineffective. Appellant gave two inculpatory statements. Since it is undisputed that the first statement was obtained without informing appellant of his Miranda rights, it is apparent that had trial counsel filed a motion to suppress the first statement, the motion would have had to have been granted. Appellant argues that had trial counsel filed a motion to suppress his second statement, that motion too would have had to have been granted because the second statement was tainted by the illegally obtained first statement. Since this argument has arguable merit, we remand for a hearing on whether trial counsel had any reasonable basis for not filing any motion to suppress.

-l-

On July 26, 1981, appellant, an inmate at the Dauphin County prison, was interrogated by John Hrabovsky, who was employed at the prison as an investigator, in connection with an attempted escape from the prison. Appellant, who was without counsel and was not informed of his Miranda rights, implicated himself by stating that when his girlfriend, Carolyn Duke, had visited him at the prison the day before, she brought him a wristband containing hacksaw blades; he also stated that his girlfriend did not know the contents of the wristband. N.T. 90.

After learning of appellant’s statement, Kenneth Barbush, a criminal investigator for the Dauphin County district attorney’s office, conducted an investigation, and on July 29, 1984, Mr. Barbush, with Mr. Hrabovsky present, interrogated appellant. N.T. 62. After informing appellant of his Miranda rights, Mr. Barbush told appellant that he was investigating Ms. Duke’s role in the attempted escape, and that she might be prosecuted. N.T. 62-63. Appellant then reiterated his statement of July 26th, that Ms. Duke had brought him the wristband but did not know that it contained hacksaw blades. N.T. 63.

Trial counsel made no motion to suppress appellant’s statement, and appellate counsel now argues that because of this failure, trial counsel was ineffective. To evaluate this argument we must determine whether the motion to suppress would have had arguable merit. If the motion would have had arguable merit, then we must remand for a hearing on whether counsel’s decision not to file the motion had any reasonable basis designed to effectuate appellant’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Appellant argues that had a motion to suppress been filed, the first statement would have been suppressed because “[i]t is clear [from the testimony of Mr. Hrabovsky himself] that appellant was questioned ... without first being given his Miranda warnings.” Brief for Appellant at 15. And next, appellant argues that had a motion to suppress been filed, the second statement would also have been suppressed, for either of two reasons: because it was rendered involuntary by the circumstances under which it was given, i.e., while appellant was in prison, and accompanied by the threat to prosecute his girlfriend, id. at 16-17; and because “although preceded by Miranda warnings [it] was never-the-less [sic ] inadmissible as the product of the exploitation of the prior illegal statement”, id. at 17-19.

The principles underlying appellant’s argument are long-settled. Where an accused, like appellant, makes two inculpatory statements, the first without, and the second with, Miranda warnings, the Commonwealth must establish that the second statement was not the exploitation of the first. This means that the Commonwealth must establish that the second statement was obtained in circumstances sufficiently distinguishable from the circumstances in which the first statement was obtained to purge it of the first statement’s taint. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311 (1983); Commonwealth v. Marabel, 445 Pa. 435, 283 A.2d 285 (1971); Commonwealth v. Banks, 429 Pa. 53, 239 A.2d 416 (1968). To determine whether the second statement was purged of the first statement’s taint, all of the circumstances in which the two statements were made must be examined. If that examination discloses that the Commonwealth has not sustained its burden of establishing that there was no taint, the second statement, as well as the first, must be suppressed. Commonwealth v. Marabel, supra, Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968).

Commonwealth v. Marabel, supra, is illustrative of the examination that a court must make in determining whether the Commonwealth has established that a second statement was not tainted by an illegally obtained first statement. There the Supreme Court found that the Commonwealth had established no taint. The case is especially striking when compared with the present case. In almost every respect, the evidence that enabled the Commonwealth to sustain its burden in Marabel was contradicted by the evidence here. Thus: In Marabel the accused said nothing inculpatory in the first statement, Commonwealth v. Marabel, supra, 445 Pa. at 445, 283 A.2d at 290; here, appellant admitted in his first statement that his girlfriend had given him the hacksaw blades used in the attempted escape. In Marabel the accused was not in custody between interrogations, id., 445 Pa. at 446, 283 A.2d at 290; here, appellant was in prison. In Marabel the accused made no inculpatory statement until after being informed of his Miranda rights, id., 445 Pa. at 446-447, 283 A.2d at 290-291; here, as Mr. Hrabovsky himself testified, appellant made his first, inculpatory, statement without having been informed of his Miranda rights. In Marabel two persons had given statements that incriminated the accused, and it was the confrontation with these two statements that caused the accused to confess, not the first, tainted, statement. Here, although another prisoner had given a statement implicating appellant, the evidence suggests that it was the fact that appellant had “let the cat out of the bag” in his first statement, in combination with the threat to prosecute appellant’s girlfriend, that led to the second statement.

In short, while in Marabel the evidence showed that the accused had made the second statement freely and without any compulsion deriving from the first statement, here the evidence tends to show precisely the opposite. As the United States Supreme Court has stated in United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947):

[A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first.
Id. at 540, 67 S.Ct. at 1398.

Accord: Commonwealth v. Ware, 438 Pa. 517, 265 A.2d 790 (1970) (recital of Miranda warnings near end of interrogation, after oral confession obtained, did not purge taint of illegal interrogation). See also Annot. 80 A.L.R.2d 1428 (1960) (collecting cases deciding whether threats to prosecute relative rendered statement involuntary).

Given the record before us, we are hard put to imagine why appellant’s trial counsel failed to file a motion to suppress appellant’s statements — the first as illegally obtained, and the second as the exploitation, or fruit, of the first. Arguably, we should simply find counsel ineffective now, and vacate the judgment of sentence and order a new trial. However, counsel may have had some reasonable basis for his failure, and the better course, we have concluded, is to remand for an ineffectiveness hearing.

-2-

Appellant also argues that if this case is not remanded for an ineffectiveness hearing, then the judgment should be vacated and a new trial ordered because of trial errors. One of the errors assigned is that the trial court erred in permitting the Commonwealth to use the illegally obtained first statement to impeach appellant.

It is apparent that the trial court was led into its assumption that appellant’s second statement was admissible, and from that assumption into permitting use of the first statement, because appellant’s trial counsel had filed no motion to suppress the statements. As already stated, we must remand this case for a hearing on why trial counsel filed no motion to suppress. It seems at least possible, if not likely, that the hearing will result, first, in trial counsel being found ineffective, and second, in new counsel’s motion to suppress both statements being granted, and a new trial being ordered. In these circumstances, we do not reach appellant’s argument that at the trial that has been held the trial court erred in permitting him to be impeached by his prior statement.

Remanded for a hearing on whether trial counsel was ineffective in failing to file a motion to suppress appellant’s statements. Jurisdiction relinquished.

GRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent.

Appellant alleges that the first interrogation and the second interrogation were tainted by the fact of his continued incarceration, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The first statement was obtained as a result of the questioning of a prison investigator at the time of the incident. The second interrogation was pursuant to an investigation by the Dauphin County District Attorney’s office three days later.

The fact that appellant was incarcerated from the time of the first incident to that of the second does not support a finding of a nexus of illegality due to the fact that appellant was incarcerated for a prior burglary.

The circumstances of Wong Sun are distinguishable from this case. The appellant in Wong Sun, Blackie Toy, had given statements to the officers in the bedroom of his own home where he, his wife, and child were sleeping. The statements were found to be the “tangible fruits of the unwarranted intrusion.”

The officers in Wong Sun had not obtained a warrant. The information from which they obtained their probable cause came from an unknown informant who had provided sparse and imprecise information. Thus, unlike the case at bar, the court found that there was an unwarranted intrusion by the officers.

In the instant case, the appellant was interrogated in the prison. He was there as a result of a prior burglary. Thus, he cannot be allowed to use the fact of his prior incarceration to shield him from questioning on the basis of involuntary confinement. There is no illegal arrest in this case from which we can find the tainted nexus, to which appellant refers. This is not a case of an illegal arrest and subsequent confession.,

Appellant’s second claim of ineffectiveness stems from counsel’s allowance of appellant to testify on his own behalf. He testified that he did not make a particular inculpatory statement, thus “opening the door” for impeachment. His third claim is that the court erred in allowing the admission of these statements for impeachment purposes. The inculpatory statements in question are that which was the subject of the first claim of ineffectiveness, viz., he stated “he had a problem.”

The appellant decided to take the stand in his own behalf. He testified that he was not involved in the crime and denied making the statement which is the subject of the claim. Even if it were the case that the court had found that the statements made on July 26, and later on July 29 were both inadmissible, the appellant could not be heard to complain of counsel’s ineffectiveness in this instance.

For years it generally was the law in the Commonwealth that constitutionally infirm statements which a Suppression Court declares inadmissible cannot be used to impeach a defendant who elects to testify at trial on his own behalf. Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975). However, here the appellant himself chose not only to testify but also to reiterate the factual narrative contained in the statement which was suppressed and claimed by him to be invalid. These circumstances make the instant case directly controlled by Commonwealth v. Mobley, 267 Pa.Super. 29, 405 A.2d 1287 (1979). There, after choosing to testify to the existence and substance of a suppressed statement, the defendant was impeached with said statement. As in Mobley, the appellant chose to “open the door” by disclosing the existence and substance of the suppressed statement and cannot complain now of its use. Mobley, supra, 267 Pa.Superior Ct. at p. 32, 405 A.2d at p. 1287.

Commonwealth v. Anderson, 302 Pa.Super. 457, 448 A.2d 1131 (1982).

Moreover, the principle of this holding further supports the finding that the admission of the statements made on both July 26 and July 29 was not error by the trial court.

In addition, because of the similarity between the appellant’s testimony and the suppressed statement, the admission of the statement, if error at all, is error that is harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), Commonwealth v. Cummings, 466 Pa. 332, 353 A.2d 381 (1976).

Commonwealth v. Anderson, supra, 302 Pa.Superior Ct. at 463, 448 A.2d at 1134.

Thus, even if the statements had been suppressed, the claims raised by appellant with reference to these inculpatory statements are rendered moot by virtue of his testimony in which he denied them by reiterating them. Commonwealth v. Anderson, supra.

Appellant’s fourth claim is of ineffective assistance of counsel in not objecting to the court’s failure to charge the jury to disregard the alleged inculpatory statements. Appellant also attributes error to the court for failing to charge the jury to disregard these same statements, if they determined the statements were involuntarily given.

The statements in question are the same two statements addressed in the previous claims. The first statement which is alleged that appellant gave on July 26, 1981 was to John Harbovsky. The statement gives rise to the allegation of ineffectiveness. This claim contradicts the position which trial counsel took in his defense of appellant. The notes of testimony indicate that appellant, on cross-examination by the District Attorney, denied having made any such statements. If counsel would have requested a charge regarding the voluntariness of the statements, such a request would have been inconsistent with his contention that appellant did not make the statement. The defense at trial was that appellant was not guilty and that he never made the inculpatory statements. Counsel had a reasonable basis for his not objecting consistent with his trial strategy. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Appellant next asserts that the Commonwealth did not lay a proper foundation for their exhibits, numbers one, two and three, before they were admitted into evidence.

Commonwealth’s exhibits were respectively the hacksaw blade found under the bunk in cell A-l-13 of the Dauphin County Prison, the blade found outside the window of cell A-l-14, and the leather wristband with the inscription “Rick” on it. Appellant’s argument is that the Commonwealth failed to establish a chain, even a tenuous one, which would connect the physical evidence to the appellant.

The argument raised by appellant fails because there is no need to have positive testimony which links the evidence to the crime before it is admitted into evidence. A lack of testimony as to the link between the weapon and the crime affects the weight of the evidence, not its admissibility. Commonwealth v. Manns, 229 Pa.Super. 21, 323 A.2d 262 (1974). The Supreme Court of Pennsylvania has stated that even where the evidence in question cannot be identified by positive testimony as the actual murder weapon, it can be introduced into evidence. The fact of the lack of positive identification affects the weight, not the admissibility of the evidence. Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973); see also Commonwealth v. Simpson, 316 Pa. Super. 115, 462 A.2d 821 (1983), where the court held that the fact that there was no positive identification of the jogging pants affected the weight not the admissibility of the relevant evidence.

Since the absence of positive identification of the weapon doesn’t affect its admissibility, appellant cannot argue that the absence of positive testimony linking the appellant to the items which comprise the contents of the exhibits in question renders them inadmissible.

There was testimony that appellant was seen in possession of the exhibits in question. Each piece of evidence need not be linked to the appellant beyond all doubt; that is a question for the fact finder. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); see also Commonwealth v. Brown, 320 Pa.Super. 80, 466 A.2d 1071 (1983).

The law is clear that physical evidence may be properly admitted despite gaps in testimony regarding its custody. Commonwealth v. Royster, 472 Pa. 581, 372 A.2d 1194 (1977); Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973). We have reasoned that gaps in the chain of custody go to the weight to be given to the testimony, not to its admissibility. Applying that reasoning to the instant situation, it is clear that the question being raised is also one of credibility, and not of admissibility.

Commonwealth v. Bolden, 486 Pa. 383, 406 A.2d 333 (1979). The evidence was therefore properly admitted.

Lastly, appellant contends that there was insufficient evidence to find him guilty beyond a reasonable doubt.

The Commonwealth, as verdict winner, is entitled to have the evidence viewed in the light most favorable to it. Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973). On appellate review, it is not the function of the court to weigh the evidence.

Traditionally under our system of jurisprudence, issues of credibility are left to the trier of fact for resolution. Commonwealth v. Hampton, 462 Pa. 322, 341 A.2d 101 (1975); Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). While there may be some legitimacy for a trial court, who has also observed the witnesses as they testified, to consider the weight of the evidence and to that extent review the jury’s determination of credibility, there is surely no justification for an appellate court, relying solely upon a cold record, to exercise such a function.

Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976).

There was testimony that appellant was heard telling someone on the telephone to bring the blades. The appellant was in possession of two hacksaw blades on July 26, 1981. There was testimony that appellant had requested another inmate to participate in an escape. Appellant was also seen in a cell with a bar that had been sawed three-quarters of the way through.

I would not remand for a hearing on whether trial counsel was ineffective in failing to file a motion to suppress appellant’s statements.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Neither do we reach appellant’s other arguments, except his argument that the evidence was insufficient. As to that, even without considering appellant’s statements, the evidence was sufficient to prove an attempt by appellant to escape from the prison.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    491 A.2d 138
    GERMANTOWN MANUFACTURING CO., Appellant, v. Robert J. RAWLINSON, Jr., and Joan Rawlinson, Appellees.
    Superior Court of Pennsylvania.
    Argued July 19, 1984.
    Filed March 29, 1985.

      John T. Salvucci, Norristown, for appellant.
    Robert B. Surakk, Philadelphia, for appellees.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   CAVANAUGH, Judge:

This is an appeal from the Order of January 19, 1983, by the Honorable Howard F. Reed, Jr. in the Court of Common Pleas of Delaware County, which granted appellee Joan Rawlinson’s petition to Open a Confessed Judgment. We affirm.

The salient facts in this case are as follows. Robert G. Rawlinson was employed by The Germantown Manufacturing Company in Marple Township as its assistant controller. Over a period of twenty-one months, Mr. Rawlinson embezzled $327,011.22 from the company. On Friday, May 21, 1982, the company discovered the misappropriation. Mr. Rawlinson admitted his wrongdoing to the company controller, Mr. Harry Dinkel, and was fired. However, Mr. Rawlinson did not tell his wife about either the misappropriation of the company monies or the loss of his job until the following Monday, May 24, 1982. Sometime between Friday and Monday, Mrs. Joan Rawlinson, Robert’s wife, answered a phone call for her husband from a Mr. Peter Kulaski who identified himself as an insurance adjuster. On Monday, May 24, 1982, she answered a second call for her husband from Mr. Kulaski. Sensing that something was amiss, she summoned her husband to the phone but stayed on an' extension and overheard Mr. Kulaski say, “Have you told your wife yet?” At this, she hung up the phone, and when her husband had finished his conversation she demanded to know what was going on. Mr. Rawlinson told his wife that he had lost his job because he had taken about $20,000.00 from the company. He also asked his wife if she wanted a divorce. Mrs. Rawlinson testified that upon hearing all of this, her “whole world fell apart.” She also testified that because she had suffered a miscarriage in late April, she was already tired and depressed when she learned of her husband’s malefactions.

The following day, Tuesday, Mrs. Rawlinson spoke by phone with Mr. Kulaski, who was a representative of the company’s insurer, and learned that he was coming to the house “to discuss documents.” He did not tell her he would attempt to have her co-sign two judgment notes. Nor did he tell her the amount her husband had misappropriated. Mr. Kulaski arrived later that day and spent thirty to forty-five minutes with Mr. and Mrs. Rawlinson. Mrs. Rawlinson apparently succeeded in keeping her two young children from knowing the purpose of the meeting.

The purpose of the meeting, from Mr. Kulaski’s perspective, was to have Mr. and Mrs. Rawlinson sign two judgment notes. The first note was for $160,000.00 — the amount Mr. Rawlinson admitted having taken. The second was for “any and all amounts in excess of One hundred and sixty thousand dollars ($160,000) which are determined by Affidavit of the President of Germantown Manufacturing Company, which Affidavit, when presented with this Note, shall constitute sufficient proof of a sum certain for the purpose of the Confession of Judgment contained herein.” Both notes authorized any attorney to confess judgment in favor of Germantown Manufacturing against the Rawlinsons. Mrs. Rawlinson was surprised to see her name on the documents. She asked Mr. Kulaski if she and her husband would need an attorney. Mr. Kulaski calmly stated that if the Rawlinsons dealt in good faith and continued to cooperate, there would be no need for an attorney. Kulaski also stated that his principal was not interested in a criminal prosecution as long as Mr. and Mrs. Rawlinson cooperated. Mrs. Rawlinson understood this to mean that if she signed the notes her husband would not go to jail.

Mrs. Rawlinson had never before seen a judgment note, and while she read them as best she could, she was crying for part of the time that she read them and believed that she was signing only one note for a total of $160,000.00. Mr. Kulaski told the Rawlinsons that since they had readily available assets totaling $160,000.00, the judgment was, in effect, already taken care of. She signed because she knew her husband had a check for $150,000.00 and the remaining $10,000.00 could be obtained without difficulty.

In August, Mr. Vernon Smith, the President of German-town Manufacturing, completed the affidavit as required by the second note. The total amount owed on this note according to the affidavit was $212,113.21.

The first note, (for $160,000.00) has been satisfied. Mrs. Rawlinson’s obligation as to it is not at issue. The only issue before us is whether the lower court abused its discretion in opening judgment on the second note.

The opening of a confessed judgment is governed by well-settled principles:

In order to open a confessed judgment, a party must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issues to a jury____ A petition to open a judgment is an appeal to the equitable powers of the court and is addressed to the sound discretion of the court; a reviewing court will not reverse the determination of the lower court absent a clear and manifest abuse of discretion.... The standard of sufficiency a court must employ is that of the directed verdict — viewing all the evidence in the light most favorable to the petitioner and accepting as true all evidence and proper inferences therefrom supporting the defense while rejecting adverse allegations of the party obtaining the judgment.

Weitzman v. Ulan, 304 Pa.Super. 204, 209, 450 A.2d 173, 176 (1982).

Underlying our analysis in the instant case is the realization that “[a] warrant of attorney authorizing judgment is perhaps the most powerful and drastic document known to civil law.... The signing of a warrant of attorney is equivalent to a warrior of old entering a combat by discarding his shield and breaking his sword. For that reason the law jealously insists on proof that this helplessness and impoverishment was voluntarily accepted and consciously assumed.” Cutler Corporation v. Latshaw, 374 Pa. 1, 4-5, 97 A.2d 234, 236 (1953). See also Scott Factors, Inc. v. Hartley, 425 Pa. 290, 228 A.2d 887 (1967). In analyzing the judgment notes in question, we are to be guided by the rules which apply to other written contracts. W.B. Rambo Building and Loan Ass’n. v. Dragone, 305 Pa. 24, 156 A. 311 (1931).

The lower court found that appellee, Joan Rawlinson, presented three meritorious defenses which permitted it to exercise its equitable discretion and open judgment. The three meritorious defenses are: 1) fraud and misrepresentation; 2) duress; and 3) the lack of accountability for the manner in which the appellant, Germantown Manufacturing, was permitted to arrive at the figure allegedly owed by the Rawlinsons. For the reasons we shall explain, we affirm the judgment of the lower court.

As one of the grounds for its decision to open judgment, the lower court found sufficient evidence of the meritorious defense of fraud and misrepresentation. In so holding, the lower court did not commit a clear and manifest abuse of discretion.

It scarcely seems necessary at this late jurisprudential hour in the day of stare decisis to cite cases to certify that fraud taints with illegality and invalidity anything its evil shadow darkens. Nor can there be any question of the right of a court to set aside any contract which is founded on fraud. This is as fundamental and solidly established as the foundations of the courthouse.

Iacoponi v. Plisko, 412 Pa. 576, 581, 195 A.2d 362, 365 (1963).

The recipient of a misrepresentation may avoid the contract by showing that the misrepresentation was either fraudulent or material. E.A. Farnsworth Contracts 242 (1982); See also DeJoseph v. Zambelli, 392 Pa. 24, 139 A.2d 644 (1958). In the instant case, we find the misrepresentation to have been both fraudulent and material. Viewing the evidence in the light most favorable to Mrs. Rawlinson, the insurance company representative told the Rawlinsons that since they had $160,000.00 readily available, the judgment was, in effect, already satisfied. This statement clearly indicated to Mrs. Rawlinson that the limit of her liability and that of her husband was $160,000.00. However, the insurance man had her sign two notes, the first for $160,-000.00 which is not at issue, and the second for any amount owing in excess of the first, which is the basis of this appeal. Her alleged liability under the second note was later determined by Germantown Manufacturing to be $212,113.21. Thus, Germantown Manufacturing and its insurer would now make Mrs. Rawlinson liable for over $372,000.00 notwithstanding the initial misrepresentation that the limit of her liability would be $160,000.00. If Mrs. Rawlinson’s testimony is true, it taxes credulity to assume that the insurance representative was unaware of his deceit in having the innocent wife sign the second note. Even if he was in fact unaware, he “had means of knowledge from which [he was] bound to ascertain the truth before making the representation. Misrepresentations made under such circumstances are fraudulent....” LaCourse v. Kiesel, 366 Pa. 385, 390, 77 A.2d 877, 880 (1951). A statement uttered with such gross recklessness is deserving of the badge of fraud. In determining whether a misrepresentation is fraudulent, the Restatement (Second) of Contracts, § 162 distinguishes three types: The first type is where the maker of the misrepresentation knows or believes that the assertion is not in accord with the facts. Viewing the evidence in the light most favorable to Mrs. Rawlinson, the insurance agent’s statement illustrates this type of fraudulent misrepresentation. The second type involves a situation where the maker expressly or impliedly suggests that the statement is based on knowledge whereas he knows it is mere opinion. Thus, even if the agent had stated his true opinion, he would still have committed a fraudulent misrepresentation by suggesting his assertion was grounded in fact and based upon knowledge rather than mere opinion. The third type involves a situation in which the maker honestly believes his assertion but lies about its basis. For example, if the agent had impliedly suggested that his assertion was based upon a particular investigation, then he would have been lying about the basis of his assertion if there had been no such investigation. We have no evidence of this third type of fraudulent misrepresentation in the instant case. Of the three types of fraudulent misrepresentation, the first type (the maker knows or believes the assertion is not in accord with the facts) is the classic type often referred to as “fraud” since it is simply a lie asserted to induce assent by the other party. See J. Murray, Cases & Materials on Contracts 426 (3d ed. 1983). Our review of the record reveals that Mrs. Rawlinson presented sufficient evidence of this classic type of fraudulent misrepresentation to constitute a meritorious defense.

Even if the misrepresentation had not been fraudulent, the agreement may still be voidable because the misrepresentation was material. Where the misrepresentation is material, the party making the statement may believe his assertion to be true, and yet the agreement is voidable by the recipient as it induced him to manifest assent. “[T]he misrepresentation need not have been the sole or even the predominant” cause inducing one to assent, E.A. Farnsworth, Contracts 244 (1982) and “[t]he requirement of materiality is usually met by showing that the misrepresentation would have been likely to have induced a reasonable person to make the contract.” E.A. Farnsworth, Contracts 243 (1982). Mrs. Rawlinson testified that she would not have signed had she known the terms of the second note. Thus, the representation may be said to have induced her to sign.

While the lower court does not address it, it is also possible that still another type of fraudulent misrepresentation may be present here, fraud in the factum or execution. The effect of this type of fraud would be to render the contract void, not just voidable. A typical example of this involves a surreptitious substitution of one document for another and the innocent party signing it without knowledge or a reasonable opportunity to know the character or essential terms of the substituted document. Here, Mrs. Rawlinson believed she was signing one document with a maximum liability of $160,000.00. While there was no finding of fraud in the factum below, nor was this argued on appeal, we only note that such an argument would not have been frivolous.

The lower court further held that appellee presented sufficient evidence of duress to constitute a meritorious defense and thus render the contract voidable. We agree.

Pennsylvania appellate courts have given scant attention of late to this defense as applied to the situation now confronting us. But other important authorities have afforded significant attention and scholarship to this question. E. Allan Farnsworth, who served as a Reporter for the Restatement of Contracts, Second, has written.

A threat to instigate criminal prosecution has generally been regarded as an improper means of inducing the victim of the threat to make a contract. The question ordinarily arises in the context of a threat to instigate prosecution for embezzlement unless the victim of the threat repays or promises to repay the sum allegedly embezzled. The victim of the threat may not be the alleged embezzler but his relative or friend. The impropriety lies in the use for ‘private benefit ... of the criminal process of the court provided for the prosecution of the crime and the protection of the public.’ On this ground, the threat is improper even if the person who makes it honestly believes that the one whose prosecution is threatened is guilty and even if in fact that person is guilty.

E.A. Farnsworth, Contracts 260 (1982).

The Restatement, Second, of Contracts states the following:

§ 175. When Duress by Threat Makes a Contract Voidable
(1) If a party’s manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the contract is voidable by the victim.

Restatement (Second) of Contracts § 175.

§ 176 When a Threat is Improper (1) A threat Is improper if
(b) what is threatened is a criminal prosecution. Comment c. Threat of prosecution.
... An explanation in good faith of the criminal consequences of another’s conduct may not involve a threat.... The guilt or innocence of the person whose prosecution is threatened is immaterial in determining whether the threat is improper, although it may be easier to show that the threat actually induced assent in the case of guilt. Illustrations:
4. A, who believes that B, his employee, has embezzled money from him, threatens B that a criminal complaint will be filed and he will be prosecuted immediately unless he executes a promissory note for $5,000.00 in satisfaction of A’s claim. B, having no reasonable alternative, is induced by A’s threat to sign the note. The note is voidable by B____

Restatement (Second) of Contracts § 176.

The eminent contract scholars, Professors Corbin and Williston, had this to say on the subject:

Mere forbearance to prosecute or to come forward with evidence of a misdemeanor is not unlawful; but a bargain to exchange such a forbearance for a consideration is always unlawful....
The settlement agreement is made illegal only when a consideration is given in exchange for. actual forbearance or for a promise of such forbearance.

6A A. Corbin, Corbin on Contracts § 1421 (1962).

The key factor is state of mind: was the victim’s mind so beclouded by apprehension that he unwillingly signed a repayment or other note?
# ifi * * >}:
Experience indicates that the threat of a well-founded prosecution, likely to result in imprisonment, is usually sufficient to coerce even a brave man.

13 S. Williston, Williston on Contracts § 1613 (3d ed. 1970). See also Falgiatore v. Falgiatore, 378 Pa. 586, 107 A.2d 864 (1954); Calamari and Perillo, Contracts 265-67 (2d ed. 1977).

In the instant case, appellant took the unsolicited liberty of including Mrs. Rawlinson’s name on the judgment notes and did not even tell her it was doing so until minutes before she was asked to sign them. Mrs. Rawlinson had already been in a weakened mental state as the result of a recent miscarriage, and was visibly upset during the meeting, having learned of her husband’s malefactions. At the meeting, she was told that if she cooperated, she would have no need for legal counsel. She understood this to mean that if she signed the notes, her husband would not go to jail. She had no reasonable alternative but to sign. That Germantown Manufacturing was ready to carry out its threat is evidenced by the following letter from German-town’s attorney to the attorney subsequently retained by Mrs. Rawlinson.

Gentlemen:

I represent Germantown Manufacturing Company in connection with the wrongful conversion of $327,011.22 by Robert G. Rawlinson, Jr., of which $160,000.00 has been repaid. It has come to my attention that Mr. and Mrs. Rawlinson have retained both of you to remove and/or satisfy certain judgments by confession in the amount of $160,000.00 which were entered against the Rawlinsons in Pennsylvania and New Jersey within the last several months.
This letter will serve as notice to you and your clients that unless all efforts by you on behalf of the Rawlinsons to attack the judgments are withdrawn and discontinued on or before 3:00 p.m. on Friday, August 13, 1982, I have been authorized to present the information and evidence in our possession to the appropriate prosecutor’s office for criminal action. Failing to receive such proof shall be treated as a refusal by the Rawlinsons to cooperate further and pay the entire debt.

Appellee’s admission that Mr. Rawlinson actually took the funds does not harm and may even strengthen her defense of duress as “it may be easier to show that the threat actually induced assent in the case of guilt.” Restatement (Second) of Contracts § 176 comment c. Moreover, the fact that Mr. Kulaski did not threaten “imminent” arrest should be of no concern in the present analysis. 13 S. Williston, Williston on Contracts § 1613 (3d ed. 1970). Nor should it matter if the threat of prosecution was not expressly stated. “[T]he bargain is just as illegal when the agreement is implied as when it is express.” 6A A. Corbin, Corbin on Contracts § 1421 (1962).

Furthermore, we note that agreements not to prosecute have been called “emphatically illegal.” Although the law will leave parties who are in pari delicto where it finds them, see J. Murray, Murray on Contracts § 346 (2d ed. 1974), “[a] party who is pressured into an illegal bargain by duress is deemed not to be equally guilty with the party exercising the pressure.... ” Calamari and Perillo Contracts 266-67 (2d ed. 1977). Thus, this defense will not be barred. It is an affront to our judicial sensibilities that one person’s ability to seek another’s prosecution can be bartered and sold the same as commodities in the market place. It is even more repugnant when the foul stench of oppression pervades the transaction.

It is clear beyond peradventure that the “choice” available to Mrs. Rawlinson exuded impermissible coercion. We note that appellee’s status as spouse to the alleged embezzler, though not argued as such by appellee, lends credence to our finding of duress in the instant case. Mrs. Rawlinson signed the documents presented her believing that her cooperation was necessary to keep her husband from going to jail. We dare not lend our judicial imprimatur to a transaction which holds the institution of the family in such lowly regard. Just as “courts will not enforce an agreement that tends unreasonably toward dissolution of a marriage”, E.A. Farnsworth, Contracts 344 (1982), neither should we enforce the second note. The only alternative for a reasonable party in the position of Mrs. Rawlinson was to refuse to sign and thus place an almost assuredly unbearable stress on her marriage and on the tranquility of the Rawlinson household. This is the epitome of duress.

A mutually exclusive basis for our holding in this case is found in the concept of unconscionability. Though the appellee does not argue this defense by name, she does aver the elements of unconscionability — that the terms of the second note were not manifested in a fashion reasonably comprehensible to her and that she had no reasonable choice but to sign; thus an analysis of this doctrine is appropriate.

“Unconscionability” is a defensive contractual remedy which serves to relieve a party from an unfair contract or from an unfair portion of a contract. See D. Dobbs, Handbook on the Law of Remedies, 707 (1973). The unconscionability section of the Uniform Commercial Code (see 13 Pa.C.S. § 2302) has been called “one of the most innovative sections” in the Code, a section which Karl Llewellyn, Chief Reporter of the Code described as “perhaps the most valuable ... in the entire Code.’ ” E.A. Farnsworth, Contracts 307 (1982) (citation omitted). “Perhaps the most durable dictum on the meaning of ‘unconscionability’ is that of the court in [Williams v. Walker-Thomas Furniture Company, 350 F.2d 445, 449 (D.C.Cir.1965) ]: ‘Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.’ ” E.A. Farnsworth Contracts 314 (1982). See Beckman v. Vassall-Dillworth Lincoln Mercury, 321 Pa.Super. 428, 468 A.2d 784 (1983), Witmer v. Exxon Corp., 495 Pa. 540, 434 A.2d 1222 (1981). The unconscionability defense has been extended beyond the code to non-sale of goods cases. See Restatement (Second) of Contracts § 208. The underlying rationale for this remedy is closely related to the rationale underlying fraud. The Supreme Court of our sister state of New Jersey has recognized that the purposes which both remedies were designed to serve are inextricably linked.

The standard of conduct contemplated by the unconscionability clause is good faith, honesty in fact and observance of fair dealing. The need for application of this standard is most acute when the professional seller is seeking the trade of those most subject to exploitation— the uneducated, the inexperienced and the people of low incomes. In such a context, a material departure from the standard puts a badge of fraud on the transaction and here the concept of fraud and unconscionability are interchangeable.

Kugler v. Romain, 58 N.J. 522, 544, 279 A.2d 640, 652 (1971). Unconscionability and the other methods of avoiding an unfair contract examined herein do nothing more than reaffirm the most basic tenet of the law of contracts— that parties must be free to choose the terms to which they will be bound.

In deciding whether a contract, or a portion thereof, is unconscionable, the following analysis is useful.

Parties to a contract rarely consciously advert to any number of terms which are binding upon them. If such terms allocate the risks of the bargain in a manner which the parties should have reasonably expected, they are enforceable — they are, to use the expression of Karl Llewellyn, ‘decent’ terms. If the terms of the contract suggest a reallocation of material risks, an attempted reallocation may be so extreme that regardless of apparent and genuine assent, a court will not enforce it.... The parties will not be found to have agreed to an abnormal allocation of risks if the only evidence thereof is an inconspicuous provision in the boilerplate of the standard form. At a minimum, the reallocation must be physically conspicuous. Beyond that, it must have been manifested in a fashion comprehensible to the party against whom it is sought to be enforced. Finally, such party must have had a reasonable choice in relation to such reallocation.

J. Murray, Murray on Contracts § 353 (2d ed. 1974).

In the instant case, there can be no question but that the confession of judgment clause was the essence of a material, risk-shifting term. It was designed to summarily discard the due process guarantees which our system of jurisprudence so highly cherishes. It is difficult to conceive of a clause which alters risks in a more drastic fashion than one which dispenses with the signer’s day in court. The signer has lost the lawsuit before it has begun.

Perhaps confession of judgment clauses are so pernicious that they should be declared illegal. In the absence of illegality, however, the only concern of the court should be whether the party against whom the clause is supposed to operate knew about it and once his apparent assent is manifested, whether he had any choice at all in relation to it, i.e., whether the apparent assent is genuine.

J. Murray, Unconscionability: Unconscionability, 31 U.Pitt.L.Rev. 1, 19-20 (1969).

The first concept of unconscionability which we shall examine may be classified under the rubric of “unfair surprise. ” This type of unconscionability involves contractual terms which are not typically expected by the party who is being asked to “assent” to them. An unexpected clause often appears in the boilerplate of a printed form and, if read at all, is often not understood. By signing such a form, a party is bound only to those terms which such party would reasonably expect such a printed form to contain. If the form contains a material, risk-shifting clause which the signer would not reasonably expect to encounter in such a transaction, courts have held that the clause may be excised as it is unconscionable. See Hen ningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960); Jones v. Star Credit Corp., 59 Misc.2d 189, 298 N.Y.S.2d 264 (1969). This type of unconscionability is typically found only in consumer cases and courts have exhibited some reluctance to apply it in cases dealing with merchant-to-merchant contracts.

A court must determine what a particular party, in the context of the particular transaction, reasonably expected beyond the “dickered” terms. Unread terms in the form that are consistent with that expectation should be operative; those that are inconsistent should be inoperative. The conspicuousness of the print as well as the character of the document should be considered.

J. Murray, The Standardized Agreement Phenomenon in the Restatement (Second) of Contracts, 67 Cornell L.Rev. 735, 776 (1982).

In the instant case, Mrs. Rawlinson did not understand the terms of the second judgment note. The harsh allocation of risks was not manifested in a manner reasonably comprehensible to her. She had never before seen a judgment note and was crying for part of the time when she read the documents presented to her, although she tried her best to read them. The lack of real choice inherent in the transaction may have counselled against any need to thoroughly read and understand what she was signing. Furthermore, neither the insurance agent nor her husband offered her any guidance as to the extent of the liability to which she was agreeing. In fact, she was misled as to her liability. See our discussion of fraud and misrepresenta tion, supra. Therefore, the confession of judgment clause is “no more part of the agreement entered into than the advertisements on the walls of the room in which the contract is signed.” Cutler v. Latshaw, 374 Pa. 1, 7, 97 A.2d 234, 237 (1953).

Mrs. Rawlinson has not manifested even “apparent” assent here. But even assuming that she read and understood the confession of judgment clause in all of its star-chamber ramifications, she did not genuinely assent to it because the clause was adhesive. The second concept of unconscionability which we shall examine concerns clauses wherein there is apparent but not genuine assent. See Kessler, Contracts of Adhesion — Some Thoughts About Freedom of Contracts, 43 Colum.L.Rev. 629 (1943).

The second concept of unconscionability has nothing to do with awareness of the terms of the contract. Assume the unusual situation of the party who reads and understands every scintilla of the printed form. He signs this document as the exclusive evidence of the deal. All courts admit evidence of misrepresentation, fraud, or duress to vitiate this apparent contract. Similarly, evidence of interference with the bargaining process falling short of these startling possibilities will also permit a court to refuse to enforce the contract or a part of the contract. The party who requires goods or services important to his physical or economic well-being may have little or no choice but apparently to assent to the terms of a printed form dictated by the party with superior bargaining power. Even where other sources of supply are available, there may be conscious parallelism resulting in virtually identical printed forms offered by all available suppliers. The phrase “contract of adhesion” and the evil it suggests have been familiar for many years. The terms of these contracts do not surprise the weaker party because they were read and understood — perhaps even explained by the dictatorial supplier. Assent and volition and, therefore, agreement are absent. The weaker party should not suffer the hardship that such clauses create. For this type of unconscionability, that the clauses are printed on standard forms is irrelevant. Presumably, the clauses are as clearly understood as they would be in the form of a personal letter or telegram. The difficulties that courts must confront in determining whether a particular clause is oppressive can be enormous. For example, a court must determine whether a party had any genuine choice, whether there was gross disparity in bargaining power, and the like. The problems should not be exacerbated, however, by confusing unconscionability because of unexpected terms with unconscionability due to a lack of choice.

J. Murray, The Standardized Agreement Phenomenon in the Restatement (Second) of Contracts, 67 Cornell L.Rev. 735, 776-77 (1982). In the instant case, it is difficult to conceive of a greater lack of choice than that which faced Mrs. Rawlinson (see our discussion of duress, supra). We will not bind her to clause to which she could not refuse her “assent”.

Finally, the lower court held that an accounting is necessary to raise the second note above mere conjecture, surmise, or speculation. The absence of such an accounting, according to the lower court, constitutes a meritorious defense.- When Mrs. Rawlinson signed the second judgment note, no amount was printed therein. Nor was there an affidavit attached stating the amount owed as the extent of Mr. Rawlinson’s embezzlement was not then known to Germantown. The note authorized the President of Germantown to determine the amounts owed and to set forth such information in an affidavit. Though it did not say so expressly, the second note did not authorize the President to arbitrarily designate any amount he desired on a whim. Rather, the only amount which he could set was the amount actually determined to have been embezzled (above the amount satisfied by the first note). “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement.” Restatement (Second) of Contracts § 205. As Justice Cardozo once wrote: “The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view today. A promise may be lacking, and yet the whole writing may be ‘instinct with an obligation,’ imperfectly expressed.” Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 91, 118 N.E. 214, 214 (1917) (citation omitted). We therefore imply the promise on the part of Germantown to act in good faith in determining and setting the amount owed. When Germantown’s president filled in the amount allegedly owed on the face of the affidavit as required by the second note, included therein was over $45,000.00 in interest on the principal. Even assuming that Mrs. Rawlinson assented to the terms of the second note without fraud, misrepresentation, duress, or unconscionability interfering with her ability to choose, we cannot say that she agreed to pay interest on the principal, and so Germantown’s inclusion of it in the affidavit may have been a breach of its duty to act in good faith. Thus, we hold that it constitutes a meritorious defense.

For these reasons, we affirm the lower court’s order opening the judgment.

      . Despite the caption on this case, this appeal concerns only the opening of the judgment as to Mrs. Joan Rawlinson, appellee. The judgment we render will have no effect on Mr. Robert Rawlinson’s obligation.

      . Palatucci v. Woodland, 166 Pa.Super. 315, 70 A.2d 674 (1950), the most recent case on point cited by appellant, bears a resemblance to the instant case. There, appellant, wife of a man who borrowed $1,600.00 from appellee, alleged that appellee threatened that if she did not sign a judgment note for $1,600.00, then he would have her husband arrested and prosecuted. The Superior Court quoted a 1912 case which stated: '“Ordinarily, when no proceedings have been commenced; threats of arrest, prosecution, or imprisonment do not constitute illegal duress to avoid a contract ... ’ Sulzner v. Cappeau-Lemley & Miller Co., 234 Pa. 162, 167, 83 A. 103, 105 ...” The court in Palatucci further stated that “[t]he doctrine of duress has broadened in modern times” but that the case in question still did not present a meritorious defense of duress because "if a threat to bring an action was made it did not preclude the opportunity to consult counsel before executing the note. There could be no duress where the contracting party is free to come and go and to consult counsel.”
        Palatucci, 166 Pa.Super. at 320, 70 A.2d at 677. This differs from the instant case where appellee’s option of consulting counsel before executing the note was not a viable one as such an action may have been deemed "noncompliance” by the appellant thus resulting in the prosecution of Mr. Rawlinson which appellee so dreaded.

      . At the 54th American Law Institute proceedings during which the sections of the Restatement, Second, of Contracts dealing with duress were discussed, a proposal was made to include a "good faith” exception to the rule. An example of the effect of this was also suggested: Neighbor A sees that neighbor B’s home is in disrepair and is in danger of harming A’s property. A threatens B with prosecution. B asks A to forbear prosecution and promises to repair the dangerous building in return for forbearance. It was suggested that the promise should be binding because it seeks to fulfill the goal of the criminal statute. Even had the exception been adopted, it would have no effect on the instant case as the appellee herself was surely not criminally liable for the embezzlement and the goal of the criminal statute would not be fulfilled by punishing her.

      . The defense of unconscionability does not yet have the same longstanding historical legitimacy enjoyed by other methods of avoiding a contract such as mistake, duress, fraud and misrepresentation. It is also not yet as clearly defined as these traditional defenses. See E.A. Farnsworth Contracts 310 (1982); D. Dobbs, Handbook on the Law of Remedies 708 (1973).

        . But see K & C, Inc. v. Westinghouse Electric Corp., 437 Pa. 303, 263 A.2d 390 (1970) a case dealing with a merchant-to-merchant contract:
      Here the loss is commercial.... Although we need not decide whether any exclusion of consequential damages where the loss is commercial can be unconscionable ..., it is clear that the exclusion was not unconscionable here, where the buyer was hardly the sheep keeping company with wolves.

        See also Johnson v. Mobil Oil Co., 415 F.Supp. 264 (E.D.Mich.1976), which discusses K & C, Inc. v. Westinghouse Electric Corp., supra. Modern courts recognize that the signer may be theoretically and technically a merchant but functionally a consumer in terms of education, business acumen, and experience.


author: WIEAND, Judge:

text:
    491 A.2d 148
    Joseph SCOPPA, Jr., and Malfalda R. Scoppa, his wife, Carl M. Thompson, Jr., and Sandra L. Thompson, his wife, Guy H. Reeder and Agnes M. Reeder, his wife, v. John F. MYERS, Jr. and Sandra Myers, his wife. Appeal of: Joseph SCOPPA, Jr., and Malfalda R. Scoppa, his wife, Guy H. Reeder and Agnes M. Reeder, his wife.
    Superior Court of Pennsylvania.
    Submitted Oct. 17, 1984.
    Filed March 29, 1985.
    Petition for Allowance of Appeal Denied Aug. 27, 1985.

      Malcolm S. Mussina, Williamsport, for appellants.
    Carl M. Thompson, Jr., Williamsport, appellee, in propria persona.
    Norman M. Lubin Williamsport, for Myers, appellees.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   WIEAND, Judge:

The plaintiffs in this equity action are the owners of adjacent lots, all of which are bounded on the south and rear by a perpendicular twenty foot wide alley. The defendants, John F. Myers, Jr. and Sandra Myers, husband and wife, own a lot which adjoins the twenty foot wide alley on the south. By deed dated August 15, 1980, the defendants acquired title to the bed of the twenty foot alley. They sent written notice to plaintiffs demanding that they cease and discontinue any further use of the alley. They then built a retaining wall, filled in behind the retaining wall to raise the grade of the alley, and planted trees and shrubbery. This has made it impossible for the Scoppas to use the alley as a means of ingress and egress to and from the rear of their property, and has impeded the use thereof by the remaining owners. Plaintiffs responded with demands of their own. When they did not achieve the desired result, litigation followed.

The trial court found that plaintiffs enjoyed an easement or right of way over the twenty foot alley. The court found further, however, that they could achieve access to the rear of their properties if the alley were reduced in width to fifteen feet. The court decreed, therefore, that the Myers should restore a fifteen foot alley. Instead of requiring that the retaining wall be removed and the alley restored to its original grade, moreover, the court directed removal of a fourteen foot section of the wall. This was based on its belief that the removal of the fourteen foot section would permit adequate access for the uses then being made of the dominant tenements. Exceptions were dismissed, a final decree was entered, and plaintiffs appealed. We reverse and remand.

The right of way enjoyed by the plaintiffs was not an easement by necessity. It was an easement created by implication when the prior, common grantor conveyed lots bounded by a twenty foot alley as shown on a subdivision plan. In a conveyance of land where a street or roadway is named as a boundary, the grantee acquires an easement to the use of the street or roadway so long as the grantor owned the fee to the servient tenement. Jones v. Sedwick, 383 Pa. 120, 123-124, 117 A.2d 709, 711 (1955); Maier v. Walborn & High, 84 Pa.Super. 522 (1925). See also: McAndrews v. Spencer, 447 Pa. 268, 270-271, 290 A.2d 258, 259 (1972); Quicksall v. City of Philadelphia, 177 Pa. 301, 35 A. 609 (1896); Hoover v. Frickanisce, 169 Pa.Super. 443, 82 A.2d 570 (1951). Because it arises by implication and not by necessity, the easement encompasses the entire right of way. Jones v. Sedwick, supra; Kinzey v. Marolt, 288 Pa.Super. 426, 432 A.2d 234 (1981).

In the instant case, the plaintiffs had an easement over a twenty foot right of way. It was error, therefore, to limit their use to only fifteen feet thereof. Kinzey v. Marolt, supra. Similarly, it was error to permit partial obstruction thereof to continue. Although the trial court obviously attempted to achieve a compromise solution satisfactory to all parties, that solution was not consistent with applicable legal principles. It was achieved at the expense of plaintiffs’ legal right to an alley twenty feet in width.

Reversed and remanded for the entry of a decree consistent with the foregoing opinion. Jurisdiction is not retained.

      . The plaintiffs are identified in the complaint as Joseph Scoppa, Jr. and Malfalda R. Scoppa, his wife; Carl M. Thompson, Jr. and Sandra L. Thompson, his wife; and Guy H. Reeder and Agnes M. Reeder, his wife.

      . The court suggested that at some time in the future, depending upon the needs of the occasion, it might use its equitable powers to require removal of the entire retaining wall.


text:
    491 A.2d 150
    COMMONWEALTH of Pennsylvania, Appellee, v. Larry BRUNNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 28, 1984.
    Filed March 29, 1985.

      Nancy J. Hopkins, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WIEAND, MONTEMURO and CERCONE, JJ.
   WIEAND, Judge:

Larry Brunner and Woodrow Wilson Murphy were tried before a jury and were found guilty of burglary and conspiracy. On direct appeal, the Superior Court ordered a new trial for Murphy but affirmed the judgment of sentence imposed upon Brunner. Commonwealth v. Brunner, 305 Pa.Super. 411, 451 A.2d 714 (1982). The Supreme Court granted Brunner’s petition for allocatur and thereafter vacated the judgment of sentence and remanded “to the court of common pleas for an evidentiary hearing to determine whether petitioner was afforded effective assistance of counsel.” Commonwealth v. Brunner, 502 Pa. 358, 466 A.2d 991 (1983). The court of common pleas, after an evidentiary hearing, found that Brunner’s counsel had not been ineffective and denied relief. The case is now before this Court on appeal from the order denying relief.

The issues requiring consideration are two in number. First, was trial counsel ineffective for failing to make an objection or move for a mistrial when a principal Commonwealth witness testified that Murphy, the co-defendant, used an alias because he had “jumped parole?” The second issue is whether counsel was ineffective, after having produced an alibi witness, for failing to request a jury-instruction regarding the significance of the alibi evidence.

“Before a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel’s assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis designated to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349 (1967). We presume counsel is effective. Moreover, the burden of establishing counsel’s ineffectiveness rests upon his client.

Commonwealth v. Litzenberger, 333 Pa.Super. 471, 481-482, 482 A.2d 968, 973 (1984), quoting Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983).

Appellant’s trial counsel testified that after a pre-trial motion to sever the Brunner and Murphy cases had been unsuccessful, he adopted a trial strategy which included keeping Brunner “as far away from Mr. Murphy as I could.” A part of the stolen property had been found in Murphy’s house. The Commonwealth’s case against Murphy, therefore, was stronger than its case against Brunner, who was connected to the burglary only by the testimony of Alice Maxwell, an admitted accomplice. When Maxwell testified that Murphy had “jumped parole,” the prejudice attached to Murphy. Consistently with the strategy of Brunner’s trial counsel, he and his client remained aloof from the ensuing Murphy objection. In this manner counsel attempted to foster a belief on the part of the jurors that it was Murphy, not Brunner, who had been responsible for the burglary.

This course had a reasonable basis designed to effectuate Brunner’s interests. We will not determine whether, in hindsight, it would have been more reasonable to join the objection of the co-defendant.

In determining that counsel did not handle this aspect of the trial ineffectively, it is not without significance that at least one Justice of the Supreme Court has suggested that Brunner was not so prejudiced by the fact that Murphy had “jumped parole” as to entitle him to a new trial. Commonwealth v. Brunner, supra (Hutchinson, J., Dissenting Opinion). The strategy employed by counsel, therefore, cannot be said to be so unreasonable that no lawyer would have chosen it.

Counsel’s failure to request an alibi instruction after having introduced evidence of an alibi defense, however, was unreasonable. The Commonwealth’s witness, Alice Maxwell, testified that Murphy, Brunner and she had looked around and burglarized a house “around noontime” on August 10, 1979. Marie Minotto was called as an alibi witness by Brunner’s attorney and testified that on August 10, 1979, between noon and 12:30 p.m., she had observedBrunner working at an ice cream parlor at High and Franklin Streets in Pottstown. Counsel did not request a jury instruction regarding alibi evidence, and the trial court gave none. The court’s only reference to Marie Minotto’s testimony was as follows:

“The defense called one witness, Miss Minotto, who is Larry Brunner’s girlfriend. She remembered, by her testimony, August 10, 1979, because she had ice cream in his stand on that date, at his place of business.”

After the court had instructed the jury, counsel made no request for further instructions regarding Brunner’s alibi defense and did not object to the court’s failure to give any instruction on the significance of alibi testimony.

The rule followed by the courts of this jurisdiction was stated in Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959) as follows:

The Commonwealth has the burden of proving every essential element necessary for conviction. If the defendant traverses one of those essential elements by evidence of alibi, his evidence will be considered by the jury along with all the other evidence. It may, either standing alone or together with other evidence, be sufficient to leave in the minds of the jury a reasonable doubt which, without it, might not otherwise exist. It will be the duty of the trial judge to carefully instruct the jury as to the relationship of the evidence of the prosecution and the evidence of the defendant as each bears upon the essential elements of the crime charged.

Id., 396 Pa. at 231-232, 151 A.2d at 446. Where an alibi defense is presented, the trial court must instruct the jury that it should acquit if the alibi evidence, even if not wholly believed, raises a reasonable doubt as to the presence of the defendant at the scene of the crime at the time when the offense was committed. “[S]uch an instruction is necessary-due to the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant’s guilt.” Commonwealth v. Pounds, 490 Pa. 621, 633-634, 417 A.2d 597, 603 (1980). A failure to give a specific alibi instruction, where warranted, is error requiring a new trial. Commonwealth v. Pounds, supra; Commonwealth v. Van Wright, 249 Pa.Super. 451, 378 A.2d 382 (1977). General instructions on the Commonwealth’s burden of proving each element of a crime beyond a reasonable doubt is not an adequate substitute for a specific alibi instruction. Commonwealth v. Pounds, supra 490 Pa. at 634, 417 A.2d at 603. Similarly, a general charge on assessing the credibility of witnesses will not suffice. Commonwealth v. Van Wright, supra 249 Pa.Super. at 458, 378 A.2d at 386.

In the case sub judice, appellant’s only witness had been an alibi witness. A correct jury instruction, therefore, was vital. Appellant’s counsel, however, did not request such an instruction; and when the court gave none, counsel failed to object.

In the face of this obvious dereliction, appellant’s counsel testified at the P.C.H.A. hearing that he didn’t request a specific alibi instruction because he didn’t believe the alibi witness. Neither he nor the Commonwealth has been able to explain how the failure to request an alibi instruction after the alibi witness had testified could reasonably be calculated to serve the best interests of counsel’s client. The witness had testified; the alibi evidence was before the jury; and appellant was entitled to a specific instruction from the court regarding its significance. When the trial court failed to deliver the required instruction, counsel had a duty to request it to do so and, if the request was denied, to preserve the court’s error by an appropriate objection. To fail in this respect was so unreasonable that it must be equated with constitutionally ineffective assistance.

The P.C.H.A. court, although apparently recognizing this deficiency in counsel’s stewardship, refused relief because “to now grant a new trial on this isolated issue of not requesting an alibi charge to the jury would be grievous error.” We disagree. Appellant’s only defense was alibi. Nevertheless, the jury was never told the significance of the evidence introduced to support this defense. This was the grievous error. No competent lawyer would have overlooked it.

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

      . It was because of the prejudicial effect of this question and answer that a new trial was awarded to Murphy by the Superior Court. Commonwealth v. Brunner, supra.

      . At the close of the Commonwealth’s case, Brunner’s counsel joined a motion for mistrial made on behalf of Murphy. It was argued that the prejudice to Murphy would also be imputed to Brunner. The trial court denied the motion for mistrial. Brunner’s counsel did not argue this ruling on appeal, believing it had been waived by the failure to object at the time the question was asked and answered.

      . The Pennsylvania Standard Jury Instruction is as follows:
      Obviously the defendant cannot be guilty unless he was at the scene of the alleged crime. The defendant has offered evidence to show that he was not present at the crime but rather was at (--- _). You should consider this evidence along with all the other evidence in the case in determining whether the Commonwealth has met its burden of proving beyond reasonable doubt that a crime was committed and that the defendant himself committed (or took part in committing) it. The defendant’s evidence that he was not present, either by itself or together with other evidence, may be sufficient to raise a reasonable doubt of his guilt in your minds. If you have a reasonable doubt of the defendant’s guilt you must find him not guilty.


text:
    491 A.2d 154
    Kevin J. ERNEST, Appellant, v. FOX POOL CORPORATION, Harry V. Rose, Individually; Lawrence S. Rose, Individually; Rose Swimming Pool Company; and Harry V. Rose and/or Lawrence S. Rose, doing business or trading as Rose Swimming Pool Company, Robert L. Goodall, Inc., Appellees. Kevin J. ERNEST, Appellant, v. FOX POOL CORPORATION, National Spa and Pool Institute, Williams Winters and Leanna Winters, his wife, Geisinger Medical Center; and Fred G. McMurry, M.D. v. ROBERT L. GOODALL, INC. v. Harry V. ROSE, Individually; Lawrence S. Rose, Individually; Rose Swimming Pool Company; and Harry V. Rose and/or Lawrence S. Rose, doing business or trading as Rose Swimming Pool Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1984.
    Filed March 29, 1985.

      Richard C. Angino, Harrisburg, for appellant.
    Charles W. Rubendoll, III, Harrisburg, for appellees.
    Before WIEAND, MONTEMURO and CERCONE, JJ.
   WIEAND, Judge:

Kevin J. Ernest was injured when he attempted to dive into an innertube in a private pool owned by William and Leanna Winters in Northumberland, Northumberland County. By a multi-count complaint filed in Dauphin County, Ernest alleged that Fox Pool Corporation had defectively designed the pool, that the private owners of the pool and National Spa and Pool Institute, an association of swimming pool manufacturers, had been guilty of negligence, and that Geisinger Medical Center and Dr. Fred G. McMurry had been guilty of medical malpractice in treating Ernest’s injuries. Robert L. Goodall, Inc., the alleged distributor of the pool, was joined as an additional defendant. In a separate action, Rose Swimming Pool, the alleged retailer and the principles of that business, Harry V. and Lawrence S. Rose, were also made party defendants. In response to a defense petition filed pursuant to Pa.R.C.P. 1006(d), the court in Dauphin County transferred venue to Northumberland County. Ernest appealed.

Pa.R.C.P. 1006(d) was considered by this Court in Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 461 A.2d 805 (1983). We there said:

A court is authorized by Pa.R.C.P. 1006(d) to transfer an action to the appropriate court of any other county where the original action could have been brought if it will serve the convenience of parties and witnesses. This rule vests considerable discretion in the trial judge to determine whether to grant a petition for a change of venue. On appeal from such an order, the only issue is whether the trial judge abused his discretion. Plum v. Tampax, Inc., 399 Pa. 553, 560, 160 A.2d 549, 553 (1960); Hamay v. County of Washington, 291 Pa.Super. 137, 141, 435 A.2d 606, 608 (1981); Daugherty v. Inland Tugs Company, 240 Pa.Super. 527, 531, 359 A.2d 465, 467 (1976); Tarasi v. Settino, 223 Pa.Super. 158, 161-162, 298 A.2d 903, 905 (1972).

Id., 315 Pa.Superior Ct. at 81, 461 A.2d at 806. The rule directs that a court’s decision on a petition to change venue shall be made according to the convenience of the parties and witnesses. Important considerations, as this Court recited them in Daugherty v. Inland Tugs Co., 240 Pa.Super. 527, 359 A.2d 465 (1976), include:

the relative ease of access to the sources of proof; the availability of compulsory process for the attendance of unwilling witnesses; the cost of obtaining the attendance of willing witnesses; the possible need for a view of the premises, if such would be appropriate to the action; and all other practical problems that make trial of a case expeditious and inexpensive. The ends of justice are not served by allowing a suit to be litigated in a forum where, on balance, unnecessary hardship and inconvenience would be cast on one party without compensatingly fair convenience to the other parties and where suit might be more conveniently litigated in another forum available equally to both parties.

Id., 240 Pa.Superior Ct. at 530, 359 A.2d at 466.

After reviewing the record in the instant case, it becomes abundantly clear that the court in Dauphin County did not abuse its discretion by transferring venue to Northumberland County. It was in Northumberland County that the plaintiff resided; and it was there that the accident occurred. It was also in Northumberland County that the pool was located, where its owners resided, and where all eyewitnesses to the accident resided. After the accident, it was Chief Michael DeFrank of the Northumberland Police Department who was summoned and arrived at the scene. The injured plaintiff was then removed to Geisinger Medical Center in nearby Danville, Montour County, where he was treated by a Northumberland County physician, Dr. Fred G. McMurry.

Conversely, Dauphin County had no connection with this litigation except that one defendant had an office there and several defendants included Dauphin County in the wider area in which they did business. The pool had been designed and manufactured in York County by Fox Pool Corporation, whose principal place of business was also in York County. National Spa and Pool Institute was an Illinois corporation, with its principal office in Washington, D.C.; and Rose Swimming Pools was a business located in Union County. Only the distributor, Robert L. Goodall, Inc., had an office in Dauphin County, but even this defendant’s principal place of business was not in Dauphin County but in Cumberland County.

Appellant urges that we adopt an interpretation of Pa.R.C.P. 1006(d) which will remove discretion from the court and vest it in plaintiff’s attorney. We reject such an interpretation; it would be contrary to the express language of the rule. Nevertheless, it must be conceded, as appellant argues, that the choice of forum by a plaintiff is entitled to weighty consideration. Walker v. Ohio River Co., 416 Pa. 149, 152, 205 A.2d 43, 45 (1964); Fox v. Pennsylvania Power & Light Co., supra, 315 Pa.Super. at 82, 461 A.2d at 806; Koenig v. International Brotherhood of Boilermakers, 284 Pa.Super. 558, 575, 426 A.2d 635, 643 (1980). This right of a plaintiff to choose the forum, however, is not absolute. Liberalized venue rules in effect in Pennsylvania will frequently suggest the availability of more than one forum in which venue can properly be laid. This is peculiarly so in product liability cases against national manufacturers who do business in most, if not all, counties of the Commonwealth. The forum non conveniens provision in Pa.R.C.P. 1006(d) is a necessary counterbalance. 1 Goodrich-Amram 2d § 1006(d):l (1976). The rule permits a court, in its discretion, to transfer venue “for the convenience of parties and witnesses.”

The rule does not suggest that a court’s decision to transfer venue should be determined according to the convenience of counsel. Thus, the fact that plaintiff’s attorney in this action maintained his law office in Dauphin County was not a controlling factor. The trial court did not commit an abuse of discretion by giving greater consideration to the convenience of the parties and the witnesses.

Similarly, the rule does not suggest that a forum non conveniens transfer may be based upon possible inconvenience to the transferring court if that court were required to try the case. Even so, the fact that a transferring court has little or no relationship with a particular action is not wholly without significance. Here, as the transferring court colorfully observed, “Dauphin County ha[d] about as much contact with this law suit as Santa Claus had with the birth of Christ.” (Trial Court Opinion at p. 4).

Finally, it cannot be said that the transferring court erred by failing to consider the convenience of unidentified, perhaps even undetermined, medical and engineering experts. Such a consideration, in view of the present state of the record, would have been wholly speculative.

The transferring court concluded that it would be more convenient to the parties and witnesses if the case were tried where the swimming pool was sold, where the accident occurred, and where the individual parties and eyewitnesses resided. In view of these weighty factors, it cannot be said that the court abused its discretion by transferring venue to Northumberland County. It was not required to accept and rely exclusively upon plaintiffs choice of a forum in preference to another forum found by the court to be more convenient to the parties and witnesses and which maintained more direct contacts with the litigation.

The order is affirmed.

      . A separate action was commenced by Ernest against those parties who are allegedly liable for a defective product. The court in Dauphin County also transferred venue in that action to Northumberland County, and that order is a subject of the present appeal. In order to simplify procedure for the reader, we will refer in our discussion to the first action. The issues are basically the same.

      . A separate petition filed by Robert L. Goodall, Inc. was consolidated with the joint petition of the other defendants prior to argument and disposition.