author:
WICKERSHAM, Judge: SPAETH, Judge,
      BROSKY, Judge, CERCONE, President Judge, POPOVICH, Judge, JOHNSON, Judge,

text:
    443 A.2d 1157
    COMMONWEALTH of Pennsylvania v. Jay C. KOCH, III., Appellant.
    Superior Court of Pennsylvania.
    Argued June 25, 1981.
    Filed April 2, 1982.
    Petition for Allowance of Appeal Denied July 1, 1982.

      James H. Thomas, Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH, HESTER, WICKERSHAM, BROSKY, JOHNSON, POPOVICH, DiSALLE and SHERTZ, JJ.
   WICKERSHAM, Judge:

On September 19, 1979, appellant, Jay C. Koch, III., was found guilty by a jury of homicide by vehicle. Appellant’s post-verdict motions were denied and appellant was sentenced to a two-year term of probation and fined $750.00 plus costs. This appeal followed.

The facts in the instant case may be summarized as follows. On February 4, 1979, at approximately 7:55 p. m., appellant was driving his 1966 Volkswagen from his parents’ home in Kirkwood to his dormitory room at Millersville State College. Appellant was traveling west on Long Lane when he collided with a 1974 Volkswagen at the intersection of Long Lane and New Danville Pike. The 1974 Volkswagen was driven by Diane C. Holton, and Michael L. McClune was a passenger. They were traveling south on the New Danville Pike at the time of the collision. Diane Holton died as a result of injuries sustained in the accident.

The intersection of Long Lane and New Danville Pike was controlled by stop signs for Long Lane, but there were no stop signs for New Danville Pike. Appellant testified at trial that he stopped at the stop sign on Long Lane, looked both ways, and observing no oncoming cars, entered the intersection at which time the accident occurred.

Section 3732 of the Vehicle Code (75 Pa.C.S.) defines the crime of homicide by vehicle as follows:

Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

Appellant first argues on appeal that section 3732 as applied to appellant constitutes a denial of due process, because it is a strict liability criminal statute under which a conviction allows substantial penalties, including up to five years in prison, and inflicts grave damage to the reputation of one so convicted. We disagree.

We rely on a recent decision of our supreme court in Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980) (opinion by Roberts, J.). In Field, a cameraman for KDKATV, Pittsburgh was standing on a sidewalk filming the picketing and other strike-related activities of employees of the Atlantic Richfield Oil Company (ARCO) when he was struck by an ARCO tractor-trailer. The cameraman was fatally injured and the driver of the tractor-trailer was held on the charges of homicide by vehicle, 75 Pa.C.S. § 3732, and driving on the sidewalk, 75 Pa.C.S. § 3703. The lower court granted a pre-trial motion by the defendant to dismiss the information against him on the ground that section 3732 of the Vehicle Code is unconstitutionally vague. The Commonwealth took an appeal.

There were two issues on appeal before the supreme court in Field: 1) Whether section 3732 is unconstitutionally vague and 2) in view of their decision in Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), cert. denied, 363 U.S. 848, 80 S.Ct. 1624, 4 L.Ed.2d 1731 (1960), whether section 3732 violates due process by imposing criminal liability without fault. The supreme court rejected the vagueness challenge citing Commonwealth v. Burt, 490 Pa. 173, 415 A.2d 89 (1980). The court also rejected the due process challenge holding that section 3732 requires the Commonwealth to prove that the victim’s death was caused by the culpable conduct of the accused.

Here, however, unlike in Koczwara, there is no effort to impose a prison term in the absence of culpable conduct. As the Attorney General recognizes, section 3732 requires the Commonwealth to prove that appellee [defendant] has deviated from the standard of care established by section 3703, the underlying Vehicle Code provision allegedly violated here [driving on the sidewalk].... Consistent with the culpability requirement, section 3703 leaves for determination at trial whether appellee knew, or should have known, he engaged in the conduct claimed to be in violation of that section. Thus, for example, it remains to be decided if a reasonable driver could, in view of the congestion at the terminal exit, know where the sidewalk was or, indeed, if a sidewalk existed. Section 3732 also requires the Commonwealth to prove that appellee’s alleged violation of section 3703 caused the victim’s death. As the Attorney General points out; at the very least, death must be a “probable consequence” of appellee’s culpable conduct. See 18 Pa.C.S. § 303(d).

Id. 490 Pa. at 524-525, 417 A.2d at 163 (footnotes omitted).

We are constrained by the decision in Commonwealth v. Field, supra, where the supreme court determined that section 3732 does not violate due process because it requires a showing of culpable conduct. Since the decision in Field, there have been various interpretations by this court as to what level of culpability is embraced by section 3732. Commonwealth v. Spurgeon, 285 Pa.Super. 563, 428 A.2d 189 (1981) (Section 3732 creates strict criminal liability without regard to any scienter element and does not require a showing of reckless or negligent culpability); Commonwealth v. Hartzell, 282 Pa. Super. 549, 423 A.2d 381 (1980) (Section 3732 does not require a showing of culpability as defined in 18 Pa.C.S. § 302—intentionally, knowingly, recklessly, or negligently); and Commonwealth v. Nay, 281 Pa.Super. 226, 421 A.2d 1231 (1980) (Section 3732 requires a showing of culpably negligent conduct as defined by 18 Pa.C.S. § 302(b)(4). See also Commonwealth v. Lang, 285 Pa.Super. 34, 426 A.2d 691 (1981) and Commonwealth v. McIlwain School Bus Lines, 283 Pa.Super. 1, 423 A.2d 413 (1980) (Both cases cite Commonwealth v. Nay, supra).

We conclude from the supreme court’s decision in Field that the culpable conduct required by section 3732 is a showing that the defendant “has deviated from the standard of care established by” the underlying Vehicle Code provision allegedly violated by him. Id. 490 Pa. at 524, 417 A.2d at 163. In Field, the underlying offense was driving on a sidewalk, 75 Pa.C.S. § 3703, while in the instant case, it was failure to yield at a stop sign, 75 Pa.C.S. § 3323. As stated in Field, in order to establish the underlying offense the Commonwealth must show that the defendant “knew, or should have known, he engaged in the conduct claimed to be in violation of that section.” Id., 490 Pa. at 525, 417 A.2d at 163. In effect, our supreme court has saved section 3732 from the due process challenge of criminal liability without fault by a bootstrap analysis, namely, the culpability required for the underlying offense also defines the culpability required for homicide by vehicle.

The supreme court also stated in Field that the Commonwealth ' must prove that the defendant’s violation of the underlying Vehicle Code provision caused the victim’s death. In defining this causal relationship between the violation and the death, the supreme court adopted a strict liability approach. The victim’s death must, at the very least, be a “probable consequence” of the defendant’s violation. See 18 Pa.C.S. § 303(d).

We summarize below the elements of the crime of homicide by vehicle, 75 Pa.C.S. § 3732, as set forth in Field:

1) Defendant deviated from the standard of care established by the underlying Vehicle Code provision [or municipal ordinance].
a) Defendant knew, or should have known, he engaged in the conduct claimed to be in violation of the underlying Vehicle Code provision [or municipal ordinance].
2) A death occurred.
b) The death was, at the very least, a probable consequence of the defendant’s violation of the underlying Vehicle Code provision [or municipal ordinance].

According to Field, the requirement that the defendant knew, or should have known, that he was violating the underlying Vehicle Code provision establishes some kind of culpability on his part. We must, therefore, conclude that section 3732 is not a strict liability criminal statute nor is it violative of due process. Commonwealth v. Field, supra 490 Pa. at 525-526, 417 A.2d at 164 (Flaherty, J., concurring).

The culpability required by section 3732 does not fall into one of the categories defined in 18 Pa.C.S. § 302 (intentionally, knowingly, recklessly, or negligently). It is lesser than criminal negligence, 18 Pa.C.S. § 302(b)(4), which involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. Proof of criminal negligence or recklessness, 18 Pa.C.S. § 302(b)(3), is required in order to convict a defendant of involuntary manslaughter, 18 Pa.C.S. § 2504. As the supreme court stated in a footnote <in Field:

In our view it was the legislative judgment in enacting section 3732 to expand the scope of criminal liability for violations of the Vehicle Code causing death. Compare 18 Pa.C.S. § 2504; Commonwealth v. Busier, supra note 3 [445 Pa. 359, 284 A.2d 783 (1971)]; Commonwealth v. Clowser, 212 Pa.Super. 208, 239 A.2d 870 (1968).

Id. 490 Pa. at 525 n.4, 417 A.2d at 163 n.4.

In Commonwealth v. Houtz, 496 Pa. 344, 437 A.2d 385 (1981) (Opinion by Roberts, J.), our supreme Court recently commented on the above quotation from Field and explained further the relationship between the crimes of homicide by vehicle and involuntary manslaughter.

This legislative ‘expansion’ was accomplished not by the elimination of any of the elements of the crime of involuntary manslaughter, but by a relaxation of the degree of proof of two existing elements: culpable conduct and causation. The crime of involuntary manslaughter, as charged here, requires proof that the actor engaged in the Vehicle Code violation in a ‘reckless or grossly negligent manner,’ and that the death was caused ‘as a direct result.’ 18 Pa.C.S. § 2504. See Commonwealth v. Clowser, 212 Pa.Super; 208, 239 A.2d 870 (1968). By contrast, under the crime of homicide by vehicle, it must be shown only that the actor ‘knew, or should have known,’ that he engaged in the conduct claimed to be in violation of the Vehicle Code, and that, at the very least, death was a ‘probable consequence’ of the conduct. Commonwealth v. Field, 490 Pa. at 525, 417 A.2d at 163. These relaxed degrees of culpable conduct and causation set forth in the crime of homicide by vehicle are necessarily established by proof of the more stringent counterparts contained in the crime of involuntary manslaughter.

437 A.2d at 387.

In view of our holding today, our previous decisions are overruled to the extent that section 3732 of the Vehicle Code was defined as a strict criminal liability statute without regard to any scienter element or as an offense involving criminal negligence as defined by section 302(b)(4) of the Crimes Code.

Appellant’s second contention on appeal is that he should be discharged because he was never charged with a violation of the Vehicle Code, which he argues is a necessary element of homicide by vehicle. This argument was rejected by this court in Commonwealth v. Wilkinson, 278 Pa.Super. 490, 420 A.2d 647 (1980), where we stated:

In order to secure a conviction under this statute [75 Pa.C.S. § 3732], the Commonwealth must prove beyond a reasonable doubt that the defendant ‘engaged in the violation of any law ... or ... ordinance applying to the operation or use of a vehicle or to the regulation of traffic . .. . ’ Nothing in the statute indicates a legislative intent that in order to establish this element of the offense, the Commonwealth must bring a separate charge for such violation. Had the Legislature intended to bifurcate the Commonwealth’s proof of homicide by vehicle into two stages—the first stage being the prosecution for violating a particular vehicle or traffic law or ordinance, and the second stage (comprising the prosecution of homicide by vehicle) being limited to proof that the violation resulted in a death—, explicit language would be expected since such a bifurcation would be unusual. In the absence of such explicit language, we see no policy reason that requires the Commonwealth to follow such a procedure. As long as the Commonwealth gives the defendant adequate notice of the particular vehicle or traffic law or ordinance allegedly violated in causing the death, whether or not the Commonwealth brings a separate charge for such violation is immaterial.

Id., 278 Pa.Superior Ct. at 496, 420 A.2d at 650 (footnote omitted).

We find that under Commonwealth v. Wilkinson, supra, the complaint and the information filed in the instant case provided appellant with adequate notice of the underlying offense. Appellant’s contention that the complaint and information should have been filed within thirty (30) days after the incident is totally without merit. The thirty-day limitation, 42 Pa.C.S. § 5553(a), only applies to the institution of proceedings for summary offenses under the Vehicle Code and, as appellant admits in his appellate brief, neither the complaint nor the information charged him with a summary offense. Consequently, section 5553(a) is inapplicable here.

Judgment of sentence affirmed.

SPAETH and BROSKY, JJ., file concurring opinions.

CERCONE, President Judge, files a concurring and dissenting opinion.

POPOVICH, J., files a dissenting opinion.

JOHNSON, J., files a dissenting statement.

DiSALLE and SHERTZ, JJ., did not participate in the consideration of this case.

SPAETH, Judge,

concurring:

I concur in the majority’s conclusion that because of Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), we must affirm. But for me, Field is neither a persuasive precedent, nor one that forecloses further attack on the constitutional validity of the statute creating the crime of homicide by vehicle.

If I don’t find Field persuasive, so much the worse for me, you may say. And yet, if we are to be content with precedent, we shall become dull indeed. The law will never grow unless we express our doubts. Courts, when they exchange opinions, should regard themselves as friends engaged in conversation. That way, their propositions will become more accurate, and command not only obedience but respect.

In any case, so believing, I venture here to discuss two difficulties I have with Field, which make me find it not persuasive, and to explain why I think it doesn’t foreclose further constitutional attack.

-1-

The first difficulty I have with Field is that its announced premise, if not clearly wrong, is at least not clearly right.

Field’s reasoning may be summarized as follows: To prove the crime of homicide by vehicle, the Commonwealth must prove that a death occurred because the defendant violated a provision of the Vehicle Code. This means that the Commonwealth must prove that the defendant’s conduct was “culpable.” To find what “culpable” means, one must look to the provision of the Vehicle Code that the defendant is charged with having violated. Upon so looking, one will find that “culpable” means that the defendant “knew, or should have known,” what he had done. 490 Pa. at 524-25, 417 A.2d at 163.

I have looked as instructed. But I am unable to find what the Supreme Court says it found.

In Field the defendant was charged with having violated Section 3703 of the Vehicle Code. Section 3703 provides that

[n]o person shall drive any vehicle except a human-powered vehicle upon a sidewalk or sidewalk area except upon a permanent or duly authorized temporary driveway. 75 Pa.C.S.A. § 3703.

Looking to this provision, I find no requirement that the Commonwealth must prove that the defendant “knew, or should have known,” that he was driving on a sidewalk. The provision seems to me to say that the Commonwealth does not have to prove anything about the defendant’s state of mind or the extent of his knowledge, but only that an event occurred—that the defendant was driving on a sidewalk.

No one can quarrel with the proposition that to find how “culpable” must be the conduct of a defendant charged with homicide by vehicle, one must look to the provision of the Vehicle Code that the defendant is charged with having violated. The difficulty arises when one applies this proposition. For some provisions of the Vehicle Code do not require the Commonwealth to prove the defendant’s state of mind or the extent of his knowledge, but only that an event occurred, while other provisions do require proof of state of mind or extent of knowledge. Section 3703, involved in Field, is an example of the first sort of provision. Section 3323(b), which is involved in the present case, is an example of the second sort of provision. Section 3323(b) provides that “[ajfter having stopped, the driver shall yield the right-of-way .... to any vehicle .... approaching on another roadway so closely as to constitute a hazard . . . . ” 75 Pa.C.S.A. § 3323(b). To prove a violation of this provision, the Commonwealth must prove the defendant’s state of mind or the extent of his knowledge. For one is not required to yield the right-of-way if one is justified in believing that with reasonable care, it will be possible to cross safely in front of an approaching vehicle. E.g., Pokusa v. Taylor, 409 Pa. 41, 185 A.2d 331 (1962); Dougherty v. Merchants’ Baking Co., 313 Pa. 557, 169 A. 753 (1934); Wynkoop v. McLendon, 208 Pa. Superior Ct. 81, 220 A.2d 904 (1966); Brodsky v. Bockman, 197 Pa. Superior Ct. 94, 176 A.2d 924 (1962); Merkel v. Janiszewski, 180 Pa. Superior Ct. 71, 117 A.2d 795 (1955).

Thus, if one does as instructed by Field, and determines the “culpability” of a defendant charged with homicide by vehicle by looking to the provision of the Vehicle Code he is charged with having violated, one reaches an extraordinary result. Sometimes, to prove culpability, the Commonwealth will only have to prove an event; other times, it will have to prove state of mind. That can’t be right. Indeed, Field says it isn’t right. For it says that the Commonwealth must always prove that if the defendant didn’t know what he was doing, at least he “should have known.” But how did the Supreme Court reach this conclusion? Its only answer is to refer us to Section 3703 of the Vehicle Code, which says nothing at all about the Commonwealth having to prove that the defendant “should have known” what he was doing, that is, that he was driving on the sidewalk.

Two solutions to this difficulty may be imagined.

The first solution is to conclude that the Supreme Court has decided that Section 3703 of the Vehicle Code does require proof of state of mind, even though the section doesn’t seem to say that. This is a possible conclusion. For the “mere omission from a criminal enactment of any mention of intent should not necessarily be construed as dispensing with it.” Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1951). Thus, in construing Section 1574(a) of the Vehicle Code, the Supreme Court has found lack of knowledge a defense. Moyer Automobile License Case, 359 Pa. 536, 59 A.2d 927 (1948); accord, Jenks v. Commonwealth, Department, of Transportation, 6 Pa. Commonwealth Ct. 546, 296 A.2d 526 (1972). It is nevertheless not a conclusion that is clearly right. For when the legislature intends to require proof of state of mind, it knows how to make its intent plain. Perhaps the legislature did intend to require that to convict a defendant of any —every—summary offense under the Vehicle Code, the Commonwealth must prove the defendant’s state of mind. But if so, it certainly expressed its intent obliquely. Nor is it apparent why the Vehicle Code should be so different in this respect from the Crimes Code, which permits conviction of a summary offense without proof of state of mind. 18 Pa.C.S.A. § 305(a).

The second solution is to conclude that the Supreme Court has decided that a distinction must be drawn. If the Commonwealth is prosecuting the defendant for a summary offense, such as driving on a sidewalk, it need only prove that the defendant did drive on the sidewalk. But if the Commonwealth is prosecuting the defendant for homicide by vehicle, it must not only prove that he did drive on the sidewalk but also, that he knew or at least “should have known” what he was doing. This too is a possible conclusion. Accepting it would preserve the apparent distinction between those provisions of the Vehicle Code that do not— or do not seem to—require proof of state of mind and those that do require it. But again, it is not a conclusion that is clearly right. For nothing in the statute creating the offense of homicide by vehicle suggests that the legislature had any such notion.

.....2-

The second difficulty I have with Field is that it effects a major change in the law, without acknowledging the change, much less justifying it.

In thinking about “culpability,” it is helpful to distinguish among four different levels of criminal liability.

The first level of criminal liability is vicarious absolute liability for the act of another. In Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), cert. denied, 363 U.S. 848, 80 S.Ct. 1624, 4 L.Ed.2d 1731 (1960), the Supreme Court held that the legislature could constitutionally provide a criminal penalty based on vicarious absolute liability. In Koczwara the defendant was the holder of a liquor license. He was convicted as the result of sales to minors, by a bartender employed by him, but outside his presence and without his knowledge. In upholding the conviction, the Court held that vicarious absolute liability, which is based on the tort doctrine of respondeat superior, must be limited to “petty misdemeanors involving only light monetary fines.” Id., 397 Pa. at 585, 155 A.2d at 830.

The second level of criminal liability is generally referred to as “absolute liability,” or “strict liability.” Imposition of absolute liability requires proof that the defendant himself did something—in other words, proof of an event—but it does not require proof that he knew what he was doing. This is the sort of liability the Crimes Code establishes for summary offenses in the absence of a specific provision to the contrary, and, apart from the questions raised by Field, is the sort I should have supposed applied to summary offenses under the Vehicle Code.

Although not acknowledged in Field, the distinction between these first two levels of criminal liability is clearly recognized in Commonwealth v. Koczwara, supra 397 Pa. at 583-85, 155 A.2d at 829-30.

Skipping for the moment the third level, we come to the fourth level of criminal liability. At this level are all of the different sorts of culpability defined by section 302 of the Crimes Code, 18 Pa.C.S.A. § 302. These include common law mens rea and criminal negligence. By putting them all at the same level, I am not suggesting that the differences among them—for example, the difference between acting intentionally and acting recklessly—are never important, only that they are not important here.

Returning now to the third level of criminal liability: As I read Field, and also Commonwealth v. Houtz, 496 Pa. 344, 437 A.2d 385 (1981), the Supreme Court has defined a level of criminal liability for homicide by vehicle that comes between levels two and four as I have just described them. Apparently, this level of culpability corresponds to ordinary, or civil, negligence. At least, I so conclude from the Supreme Court’s use in both Field and Houtz of the phrase “knew or should have known,” and also, from the discussion in Field of what a “reasonable driver” should have known.

I am unaware of any other criminal offense in Pennsylvania for which ordinary negligence is the required level of liability. Surely, such a change in the law should not be made except with the fullest explanation of its necessity.

On its face, the crime of homicide by vehicle appears to result from a confusion of the criminal with the civil law. If some one has been guilty of ordinary negligence, he may be required to compensate the victim by an action in trespass. But to label him, not only a tortfeasor but a “criminal killer”—for that is how one convicted of homicide by vehicle is labeled—seems to me to serve no useful purpose. It doesn’t compensate the victim. It won’t deter anyone. (The threat of criminal sanctions may deter intentional conduct, but not conduct only ordinarily negligent.) It can only humiliate the defendant and inflict upon him the economic losses and damage to reputation incident to having a criminal record. See Commonwealth v. Malone, 244 Pa. Superior Ct. 62, 68-69, 366 A.2d 584, 587-88 (1976) (discussing the effects of a criminal record).

In addition, the crime of homicide by vehicle seems to render nugatory the crime of involuntary manslaughter. The penalty for both crimes is the same. Thus a defendant only ordinarily negligent is subject to the same criminal sanction as. one grossly negligent. Why should a district attorney be concerned with seeking a conviction of involuntary manslaughter, when a conviction of homicide by vehicle is so much easier to get? (In the present case, the evidence was too thin to support a finding of gross negligence, and appellant was properly acquitted of involuntary manslaughter, but it wasn’t too thin to support a finding of ordinary negligence.)

I have already discussed the confusion of purpose that underlies the crime of homicide by vehicle, in concurrence in Commonwealth v. Barone, 276 Pa. Superior Ct. 282, 300-334, 419 A.2d 457, 467-485 (1980), where I was joined by Judge HOFFMAN. I only refer to it again because nothing said in Field or Houtz dispels it.

-3-

When appellant was tried, neither Field nor Barone had been decided. Before his trial, appellant filed a motion in the lower court asserting that the statute creating the crime of homicide by vehicle, 75 Pa.C.S.A. § 3732, was unconstitutional, and that the count charging him with homicide by vehicle should therefore be quashed. The court denied the motion, and in its charge, read the statute, along with the statutory provisions regarding the duty to stop at a stop sign, 75 Pa.C.S.A. § 3323(b), and involuntary manslaughter, 18 Pa.C.S.A. § 2504. The court did not charge that to convict appellant, the jury had to find beyond a reasonable doubt that he “knew, or should have known, [that] he engaged in the conduct claimed to be in violation of . . . section [3323(b)] of the Vehicle Code.”

Under Field, the lower court should have so. charged. Because Field had not been decided, I should not regard appellant’s failure to request such a charge as constituting a waiver. If appellant were asking for a new trial, at which he would have the benefit of such a charge, I should vote to grant him one.

But appellant has asked only for a discharge. As indicated by the majority opinion, he offers two different arguments in support of this request. I agree with the majority that appellant’s argument, that he should be discharged because he was not separately charged with a Vehicle Code violation, has been decided against him in Commonwealth v. Wilkinson, 278 Pa. Superior Ct. 490, 420 A.2d 647 (1980). I also agree with the majority that appellant’s other argument, that the statute creating the crime of homicide by vehicle is unconstitutional because it provides for substantial penalties including imprisonment up to five years, and does grave damage to the convicted person’s reputation, on proof of strict liability only, has been decided against him in Field. For whatever else may be said about Field, it makes plain that homicide by vehicle is not a strict liability offense.

Perhaps I pursue a lost cause—although if a rational jurisprudence has become a lost cause, we’re in trouble deep indeed. But given my difficulties with Field, I remain unpersuaded of the constitutional validity of the statute enacting the crime of homicide by vehicle. That doesn’t mean the statute’s validity may be decided in this case. Both the Supreme Court and this court have repeatedly held that even constitutional issues are waived when not properly preserved. But it is appropriate to note that the Court has considered only two constitutional issues that were properly preserved: first, whether the statute is unconstitutionally vague, Commonwealth v. Burt, 490 Pa. 173, 415 A.2d 89 (1980); and second, whether the statute is unconstitutional because it provides for imprisonment of up to five years on proof of strict liability only, Commonwealth v. Field, supra. Whether the statute is unconstitutional because it provides for imprisonment of up to five years upon proof of ordinary negligence only is an issue that in my opinion remains open. I hope we shall decide it another day.

BROSKY, Judge,

concurring:

I join in the opinion of the majority of this court as mandated by the decisions of our Supreme Court in Commonwealth v. Houtz, 496 Pa. 344, 437 A.2d 385 (1981), and in Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980). Since we followed the decision in Commonwealth v. Field, supra, in our opinion in Commonwealth v. Hartzell, 282 Pa.Super. 549, 423 A.2d 381 (1981), now supported by the holding in Commonwealth v. Houtz, supra, I therefore consider the decision herein a reversal of our decisions in Commonwealth v. Barone, 276 Pa.Super. 282, 419 A.2d 457 (1980), and Commonwealth v. Nay, 281 Pa.Super. 226, 421 A.2d 1231 (1980), Commonwealth v. McIlwain School Bus Lines, 283 Pa.Super. 1, 423 A.2d 413 (1980), and Commonwealth v. Lang, 285 Pa.Super. 34, 426 A.2d 691 (1981).

CERCONE, President Judge,

concurring and dissenting:

I remain unpersuaded that the position expressed in my opinions in Commonwealth v. Barone, 276 Pa.Superior Ct. 282, 419 A.2d 457 (1980), alloc. den., and in Commonwealth v. Lang, 285 Pa.Superior Ct. 34, 426 A.2d 691 (1981) and espoused by this Court in Commonwealth v. Nay, 281 Pa.Superior Ct. 226, 421 A.2d 1231 (1980) and in Commonwealth v. McIlwain School Bus Lines, 283 Pa. Superior Ct. 1, 423 A.2d 413 (1980) is incorrect. I believe that Judge Wickersham is correct when he states that the Supreme Court pulled the homicide by vehicle statute out of the mire of unconstitutionality by its proverbial bootstraps, and to that extent I concur in the result reached by the majority. However, I cannot rationally or ethically accept the majority’s conclusion that the Legislature intended to create a new level of criminal culpability falling between criminal negligence and absolute criminal liability, the Supreme Court’s pronouncements and stare decisis notwithstanding. My misgivings are somewhat assuaged by Judge Popovich’s cogent dissent, which points out the Supreme Court’s requirement that death be the probable consequence of the Vehicle Code violations. Such a requirement more nearly approximates criminal negligence than the minimum culpability requirement set out in the majority’s opinion. Because my views differ markedly from those expressed by the majority I feel compelled to commit them to print, wherefore I submit the following.

Section 3732 of the Pennsylvania Motor Vehicle Code defines the offense of homicide by vehicle. Violation of this provision of the Vehicle Code is classified as a misdemeanor of the first degree, and constitutes a crime by virtue of Section 106(a)(b) & (e) of the Crimes Code. Section 106(e) definitively states that “[a]n offense . . . defined by any statute other than [the Crimes Code] shall be classified as provided in” Crimes Code Section 106(a)-(d).

Section 302(a) of the Crimes Code delineates the culpability requirements of offenses defined in the Crimes Code as well as all other offenses elsewhere defined. That section clearly provides that the minimum level of culpability is that culpability commonly referred to as criminal negligence. Section 302(a) reads:

Except as provided in section 305 of this title (relating to limitations on scope of culpability requirements), a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

The definition of criminal negligence, found in the Crimes Code at Section 302(b)(4), reads:

A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

18 Pa.C.S. § 302(b)(4). As is clear from Section 302(a) there are some exceptions to the culpability requirements set out elsewhere in that Section. These exceptions are found in Section 305 of the Crimes Code. Section 305 reads in full:

Limitations on scope of culpability requirements.
(a) When culpability requirements are inapplicable to summary offenses and to offenses defined by other statutes.—The requirements of culpability prescribed by section 301 of this title (relating to requirement of voluntary act) and section 302 of this title (relating to general requirements of culpability) do not apply to:
(1) summary offenses, unless the requirement involved is included in the definition of the offense or the court determines that its application is consistent with effective enforcement of the law defining the offense; or
(2) offenses defined by statutes other than this title, in so far as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears.
(b) Effect of absolute liability in reducing grade of offense to summary offense.—Notwithstanding any other provision of existing law and unless a subsequent statute otherwise provides:
(1) when absolute liability is imposed with respect to any material element of an offense defined by a statute other than this title and a conviction is based upon such liability, the offense constitutes a summary offense; and
(2) although absolute liability is imposed by law with respect to one or more of the material elements of an offense defined by a statute other than this title, the culpable commission of the offense may be charged and proved, in which event negligence with respect to such elements constitutes sufficient culpability and the classification of the offense and the sentence that may be imposed therefor upon conviction are determined by section 106 of this title (relating to classes of offenses) and Chapter 11 of this title (relating to authorized disposition of offenders).

18 Pa.C.S. § 305. Crimes Code Section 305 clearly exempts summary offenses from the culpability requirements of Section 302 (except of course the case where the definition of the summary offense includes a culpability requirement). Section 305 also exempts from the culpability requirements of Section 302 absolute liability offenses.

If we are to harmonize the Crimes Code provisions with the Vehicle Code’s definition of homicide by vehicle in Section 3732 we must decide that the Legislature intended either (1) to maintain the culpability requirements of Section 302 and apply them to Section 3732, or (2) plainly to impose absolute liability for violation of Section 3732 thus making use of the exemption from the operation of Section 302 contained in Section 305(a)(2). Cf. Commonwealth v. Barone, supra 276 Pa.Super. at 300-334, 419 A.2d at 467-485 (Concurring Opinion by Judge Spaeth) Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980) and more recently Commonwealth v. Houtz, 496 Pa. 344, 437 A.2d 385 (1981) make it unmistakably clear that homicide by vehicle is not an absolute liability offense. This leads one to the inescapable conclusion either that the culpability requirements of Section 302 of the Crimes Code apply to homicide by vehicle, or that the Vehicle Code cannot be reconciled or harmonized with the Crimes Code. With the latter conclusion comes the clear implication that the Legislature intended to create an additional level of culpability when it enacted Vehicle Code Section 3732 and thereby exempt homicide by vehicle from the culpability requirements of the Crimes Code sub silentio. It is my earnest belief that the Legislature intended no such expansion of the scope of liability for homicide by vehicle, and that had it intended the homicide by vehicle statute to supersede Sections 302 and 305 of the Crimes Code it would have done so openly and explicitly.

Can it be said that the Legislature’s intention to create an absolute liability statute or one nearly approaching it so plainly appears that the culpability requirements of Crimes Code Section 302 and 305 do not apply to homicide by vehicle? I think not, and accordingly, I dissent.

POPOVICH, Judge,

dissenting:

Accepting Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), and Commonwealth v. Houtz, 496 Pa. 344, 437 A.2d 385 (1981), both authored by Justice Roberts, as the correct statement of the law, I must dissent.

Both my colleagues, Wickersham, J. writing for the majority, and Spaeth, J. concurring, have, in my view, overlooked a fundamental requirement for conviction of “homicide by vehicle”, Vehicle Code, 75 Pa. C.S.A. § 3732.

In Field, supra, as bright light guidance, Justice ROBERTS cogently pointed out that not only must the Commonwealth prove that the underlying vehicle code violation caused the victim’s death, but also that, at the very least, death must be a probable consequence of defendant’s culpable conduct, citing 18 Pa.C.S.A. 303(d). Commonwealth v. Field, supra, 490 Pa. at 523-25, 417 A.2d at 163; accord Commonwealth v. Houtz, supra, 496 Pa. at 349, 437 A.2d at 387.

In other words, there must be a code violation causing death and death must be the probable consequence of the culpable conduct—not merely the possible consequence or conceivable consequence, feasible consequence or imaginable consequence, but rather the probable consequence, meaning, of course, the likely result.

Instantly, the Commonwealth, at best, proved only the failure to observe a stop sign, a collision and death as a result of the Vehicle Code violation. There is not a scintilla of evidence to show that death would probably result from appellant’s driving through a stop sign that evening of February 4, 1979. Under the facts presented here, who could have predicted even that a collision would occur, much less a collision, bodily injury and death.

Posit a situation where a vehicle operator ignores a stop light at a crowded intersection. There, an actual death caused by one’s culpable conduct would indeed be the probable consequence of the Vehicle Code violation and not merely a possible or fortuitous consequence as we are presented with instantly.

Here, there has been no showing that the intersecting highway was crowded or even otherwise occupied save for the victim’s car. Thus the majority is telling the millions of drivers in this Commonwealth that if death occurs as the result of any violation of the Vehicle Code, the violator is guilty of criminal homicide. Our courts are clogged today with thousands of civil cases arising out of motor vehicle accidents, accidents which, obviously, could not have occurred except as a result of some Vehicle Code violation. Are all these civil defendants criminals but for the fact that the plaintiff did not succumb in the accident? Clearly, the Legislature did not intend such an absurdity.

Unfortunately, the majority here judicially makes that absurdity the law of the Commonwealth.

I dissent.

JOHNSON, Judge,

dissenting:

I must respectfully dissent. The uncontradicted tesitmony was: (1) the only other vehicle in the area was the victim’s; (2) the weather was clear and dry; (3) Appellant, who traveled this road at least twice a week, was familiar with the road. Considering the foregoing facts, I cannot agree that the victim’s death was the “probable consequence” of Appellant’s alleged failure to heed the stop sign.

Accordingly, I would reverse the judgment of sentence and discharge Appellant.

      . The jury found appellant not guilty of the charge of involuntary manslaughter.

      . It has been suggested in other cases that appellant waived this constitutional issue by not notifying the Attorney General of the Commonwealth in accordance with Pa.R.A.P. 521(a). Commonwealth v. Duncan, 279 Pa.Super. 395, 421 A.2d 257 (1980); Commonwealth v. Ashford, 268 Pa.Super. 225, 407 A.2d 1328 (1979). We have, however, decided to dispose of the issue in the interest of judicial economy, and further because the plain wording of Rule 521(a) excludes its effect where the Commonwealth is a party. Commonwealth v. Linder, 284 Pa.Super. 327, 333 n.4, 425 A.2d 1126, 1129 n.4 (1981).

      . In Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), both the vagueness and due process challenges were included in the defendant’s motion to dismiss the information against him. The defendant alleged in his motion, inter alia, that the crime of homicide by vehicle violates due process because it imposes criminal sanctions (including possible imprisonment) upon “unintentional conduct.” Id., 490 Pa. at 522 & n.l, 417 A.2d at 162 & n.l.

      . We note that Justice Roberts of the Pennsylvania Supreme Court, who authored the opinion in Commonwealth v. Field, supra, joined in the decision of this court in Commonwealth v. Hartzell, 282 Pa.Super. 549, 423 A.2d 381 (1980).

      . Prior to the supreme court’s decision in Commonwealth v. Field, supra, this court analyzed the crime of homicide by vehicle, 75 Pa.C.S. § 3732, in Commonwealth v. Barone, 276 Pa.Super. 282, 419 A.2d 457 (1980). In Barone, the court was divided into three different views of section 3732. President Judge Cercone joined by Judge Cavanaugh determined that the Commonwealth must show culpable negligence as defined by 18 Pa.C.S. § 302(b)(4) in order to convict a defendant of homicide by vehicle. Judge Spaeth joined by Judge Hoffman in a concurring opinion stated that section 3732 creates strict liability and violates due process in light of its possible five-year prison sentence and its classification as a homicide. Judge Wieand joined by Judges Price and Hester filed a dissenting opinion concluding that the statute imposes strict liability but is constitutionally valid. We note that Barone did not express the views of a majority of the court and, therefore, is not decisional. Commonwealth v. Mason, 456 Pa. 602, 322 A.2d 357 (1974).

      . Judge Popovich concludes in his dissenting opinion that in the instant case, death was not a probable consequence of appellant’s failure to observe a stop sign. We are unable to reach this issue, because it has not been raised by appellant on appeal. Appellant’s attack on the constitutionality of section 3732 of the Vehicle Code is limited to the culpability requirement, or lack thereof, and appellant does not argue that there was insufficient evidence to sustain his conviction.

      . Appellant cites 75 Pa.C.S. § 6302 in support of his argument that the complaint in this case was not timely filed. Former section 6302(a) provided a thirty-day limitation for instituting proceedings for summary offenses under the Vehicle Code. Section 6302 now provides that “[a] prosecution for any offense under this title must be commenced within the period limited by Chapter 55 of Title 42 (relating to limitation of time).” 75 Pa.C.S. § 6302 (Supp. 1981-82). The thirty-day limitation for summary offenses under the Vehicle Code is currently set forth in 42 Pa.C.S. § 5553(a).

      . 42 Pa.C.S. § 5553(a) provides:
      (a) General rule.—..., proceedings for summary offenses under Title 75 (relating to vehicles) must be commenced within 30 days after the commission of the alleged offense or within 30 days after the discovery of the commission of the offense or the identity of the offender, whichever is later, and not thereafter.

      . In the context of the criminal law, “negligence” is a slippery word. As defined by the Model Penal Code § 202(2)(d), also by our Crimes Code, 18 Pa.C.S.A. § 302(b)(4), and the codes of many other states, “negligence” is something more than “ordinary” or “simple” or “civil” negligence. One must be aware that a “substantial and unjustifiable risk” exists, and one’s failure to perceive the risk must represent a “gross deviation from the standard of care [of] a reasonable person.” Although for clarity this is often called “criminal negligence,” for the most part the various sections of the Model Penal Code and our Crimes Code rely on the definitions in their preliminary provisions and refer only to “negligence.” One exception in our Crimes Code is the definition of involuntary manslaughter, which requires action in a “grossly negligent manner.” 18 Pa.C.S.A. § 2504. “Grossly negligent” is not defined in the Code. It is not clear whether gross negligence for purposes of involuntary manslaughter is something more than negligence as defined by § 302(b)(4) or whether it is the same, “gross” being added merely to reinforce the distinction between it and ordinary or civil negligence. See Toll, Pennsylvania Crimes Code Annotated § 2504 Reporter’s Comment (1974).

      . There do appear to be several other states where ordinary negligence is the predicate for offenses similar to homicide by vehicle. See B. Williams, “State Laws on Homicide by Vehicle,” Nat’l Comm, on Uniform Traffic Laws and Ordinances, Traffic Laws Commentary, October, 1978, pp. 1-19. For example, in Connecticut the definition of negligent homicide with a motor vehicle is as follows:
      A person is guilty of negligent homicide with a motor vehicle when in consequence of the negligent operation of a motor vehicle he causes the death of another person.
      Conn.Gen.Stat.Ann. § 53a -58a.
      This is a class B misdemeanor with a maximum penalty of 6 months in jail. Another offense, misconduct with a motor vehicle, requires criminal negligence or intoxication, and is classified as a felony. Conn.Gen.Stat.Ann. § 53a 57. Connecticut cases have held that the negligence required for the misdemeanor of negligent homicide is only simple negligence, and it is on that basis that the two offenses differ. E.g., State v. Wilkinson, 176 Conn. 451, 408 A.2d 232 (1979); State v. Waterhouse, 35 Conn.Sup. 519, 394 A.2d 205 (1977).
      Another state with two separate offenses based on death resulting from operation of a motor vehicle is Hawaii. One offense is a felony predicated on negligence, the other, a misdemeanor predicated on simple negligence. Hawaii Rev.Stat. §§ 707-703, 707-704. The definition of “negligence” is found in § 702-206(4) and, like our Crimes Code § 302(b)(4), is taken from the Model Penal Code. In contrast, “simple negligence” is defined in § 707-704, which suggests that in Hawaii, it has no other application in the criminal law.

      . But see, Commonwealth v. Hartzell, 282 Pa.Superior Ct. 549, 423 A.2d 381 (1980); Commonwealth v. Spurgeon, 285 Pa.Superior Ct. 563, 428 A.2d 189 (1981).

      . Act of June 17, 1976, P.L. 162, No. 81, § 1; 75 Pa.C.S. § 3732. That section reads:
      Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1, as amended March 24, 1974, P.L. 213, No. 46, § 1; 18 Pa.C.S. § 106.

      . 18 Pa.C.S. § 106(e).

      . Section 302(c) of the Crimes Code provides that where the statute defining the offense does not set out the culpability required to establish a material element of the offense then the minimum level of culpability required to establish that element (or all the elements if no culpability is set out) is recklessness. Section 302(c) & (d) read:
      (c) Culpability required unless otherwise provided.—When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly or reckiessly with respect thereto.
      (d) Prescribed culpability requirement applies to all material elements.—When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.
      18 Pa.C.S. § 302(c) & (d).

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1.

      . Clearly the Legislature did not intend homicide by vehicle to constitute a summary offense and therefore Crimes Code Section 305(a)(1) does not come into play.

      . See Commonwealth v. Field, supra, n.4 for the Supreme Court’s discussion of the Legislature’s intent in enacting Section 3732.

      . As Judge Dowling of the Dauphin County Court of Common Pleas points out in his fine opinion in Commonwealth v. Serucsak, 9 D. & C. 3d 677 (1979) the word “unintentional” in the homicide by vehicle statute refers not to the accused’s violation of the Motor Vehicle Code but rather to his desire to bring about the deceased’s demise. Judge Dowling writes:
      On its face [the vehicular homicide statute] appears to say that if you violate any provision of the Vehicle Code and as a result death occurs you are ipso facto guilty. This would appear to be quite a departure—one as different as the electric from the gas engine. A cursory examination creates an impression that the statute is designed to prescribe [sic] unintentional conduct which causes the death of another person, but a more careful perusal indicate[s] that the word “unintentional” refers to the defendant’s desire to cause the death.
      Id. at 679. (footnote omitted). The word “unintentional” thus distinguishes homicide by vehicle from intentional homicide involving violations of the Vehicle Code.

        In Commonwealth v. Kishbaugh, 11 D. & C. 3d (1979) Judge Davison of Lehigh County, pursuing the same analysis of Section 3732 as Judge Gates in Commonwealth v. Serucsak, supra, arrived at exactly the opposite conclusion: that the Legislature plainly intended to impose absolute liability.

      . “When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the conduct of the actor.” (Emphasis added).

      . The paradoxical irony is that if death does not result and even though the victim of a collision is rendered permanently comatose or handicapped, no criminal liability would attach.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    443 A.2d 1170
    Delores WHITE and Charles White, her husband v. Marius CIRELLI, M.D., Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed April 2, 1982.

      Alfonso Tumini, Philadelphia, for appellant.
    Anthony P. Barratta, Philadelphia, for appellees.
    Before CERCONE, President Judge, and HESTER and WIEAND, JJ.
   WIEAND, Judge:

After a summons in trespass had been dismissed for failure to prosecute the action for more than three years, the plaintiff petitioned for and was able to obtain an order reinstating the same. This appeal followed. We reverse.

The procedural history may be summarized briefly as follows. On July 23, 1974, plaintiff-appellees filed a praecipe for writ of summons in trespass, and the summons was duly issued. It was re-issued on August 15, 1975. No further action was taken until January 2, 1979, when the suit was dismissed with prejudice pursuant to Star Rule 350 (now designated Rule 130) of the Rules of Civil Procedure of Philadelphia County. Two and one-half months later, on March 20,1979, appellees filed a “Petition for Reinstatement of Case.” Defendant-appellant filed no answer, and appellees’ petition was granted. An order reinstating the case was entered April 3, 1979. This appeal followed on May 2, 1979. The record discloses a classic case of delay and laxity by both sides.

Philadelphia Rule 130 allows a party to reinstate a dismissed action upon “written application for good cause shown.” This court has previously applied to such applications the standards for opening a judgment of non pros. Thus, “good cause” has been established when: (1) the petition is timely filed, (2) the reason for the default is reasonably explained or excused, and (3) the facts constituting grounds for the cause of action have been alleged. See: International Telephone and Telegraph Corporation v. Philadelphia Electric Company, 250 Pa.Superior Ct. 378, 382, 378 A.2d 986, 988 (1977). See also: Stringer v. Kaytes, 286 Pa.Superior Ct. 551, 429 A.2d 660 (1981); Faulks v. Papo Bar, Inc., 280 Pa.Superior Ct. 454, 421 A.2d 810 (1980); Corcoran v. Florentino, 277 Pa.Superior Ct. 256, 419 A.2d 759 (1980).

It may be conceded in the instant case that appellees’ petition was timely filed. The Philadelphia rule requires that application be made within three months of the date of dismissal. Appellees’ petition was filed two and one-half months after the January 2 dismissal.

The second and third requirements of the rule, however, have not been met. In their petition for reinstatement, plaintiff-appellees averred that default had been caused by an inadvertent and incorrect diary entry made by a secretary employed in the office of their attorney. This is an inadequate explanation for the lengthy period of inactivity in this case. “If counsel’s mistake, oversight, or neglect is to be a reason to vacate a non pros, that mistake, oversight or neglect must be reasonably explained.” Corcoran v. Florentino, id., 277 Pa.Superior Ct. at 261, 419 A.2d at 762. In Corcoran, we determined that a similar explanation, i.e., an improper processing of case by counsel’s associates, was insufficient to justify an even shorter default of 30 months.

Furthermore, appellees’ petition is silent as to the facts on which their supposed cause of action is based. Thus, even now, appellees have not apprised the trial court or appellant of the cause of action which they intend to assert.

We disagree with the lower court’s conclusion that “[wjhile plaintiff’s petition arguably does not meet two of the requirements of International Telephone and Telegraph Corporation v. Philadelphia Electric Company [supra] . . ., defendant waived these issues by failing to file an answer to plaintiff’s petition for reinstatement.” The burden to establish good cause is affirmatively upon the petitioner. This is specifically provided by Rule 130. Thus, while we cannot condone appellant’s failure to file an answer, this failure does not eliminate the need for plaintiff-appellees to establish good cause to reinstate a summons where no action was taken for 3V3 years.

The order reinstating the summons is vacated; the order dismissing the action is reinstated.

      . Rule 130 is as follows:

        (1) Whenever in any civil action a Certificate of Readiness has not been filed and no proceedings have been docketed in the Prothonotary’s Office for a period of two (2) successive years, the action shall be dismissed with prejudice, for failure to prosecute under the provisions of this rule, and the docket so marked, provided that no less than sixty (60) days’ notice be given by publication once in The Legal Intelligencer.
      (2) Whenever in any civil action a Praecipe or an Order for trial or a Certificate of Readiness has been filed, but thereafter no further action or any disposition has been noted on the docket in the Prothonotary’s Office for a period of three (3) successive years, the action shall be dismissed, with prejudice, for failure to prosecute under the provisions of this rule, and the docket so marked; provided that no less than six (6) months advance notice thereof be given by publication once in The Legal Intelligencer.
      (3) Dismissal under (1) or (2) is subject to the right of any party to reinstate the action by written application for good cause shown after such dismissal within three (3) months of the date of dismissal. The rule was authorized by Pa.Rule of Judicial Administration 1901(b).


text:
    443 A.2d 1172
    COMMONWEALTH of Pennsylvania v. Jerry R. FAWCETT, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1981.
    Filed April 2, 1982.

      Peter T. Campana, Williamsport, for appellant.
    R. Michael Kaar, Assistant District Attorney, Milton, for Commonwealth, appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

Jerry Fawcett was tried by jury and found guilty of rape, involuntary deviate sexual intercourse, and involuntary servitude. Post trial motions were dismissed, and Fawcett was sentenced to prison for not less than four nor more than fifteen years. On appeal, he alleges numerous trial errors. All will be considered; only one has merit.

Appellant’s first contention is that the trial court erred when it denied a defense request to sequester the alleged victim. There is no merit in this contention. In Pennsylvania it has long been established that the sequestration of witnesses is a matter within the discretion of the trial judge. Commonwealth v. Fant, 480 Pa. 586, 591, 391 A.2d 1040, 1043 (1978), cert. denied, 441 U.S. 951, 99 S.Ct. 2180, 60 L.Ed.2d 1056 (1979); Commonwealth v. Martin, 479 Pa. 609, 616, 388 A.2d 1361, 1365 (1978); Commonwealth v. Yount, 455 Pa. 303, 318, 314 A.2d 242, 250 (1974); Commonwealth v. Kravitz, 400 Pa. 198, 218, 161 A.2d 861, 870-871 (1960) , cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961) ; Commonwealth v. Turner, 371 Pa. 417, 429, 88 A.2d 915, 921 (1952); Commonwealth v. Kaye, 232 Pa.Superior Ct. 513, 518, 335 A.2d 430, 433 (1975); Commonwealth v. Howard, 226 Pa.Superior Ct. 22, 26, 312 A.2d 54, 56 (1973), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974). “The purpose of sequestration of witnesses is to reduce the possibility that a witness may, from what he hears in the courtroom, improperly mold his testimony to fit some plan not riveted to the standards of truth.” Commonwealth v. Smith, 424 Pa. 9, 14, 225 A.2d 691, 694 (1967). Accord, Commonwealth v. Fant, supra 480 Pa. at 592, 391 A.2d at 1043. “A request for sequestration of a witness or witnesses should be specific and should be supported by some reason or reasons demonstrating that the interests of justice require it.” Commonwealth v. Kravitz, supra 400 Pa. at 218 n.7, 161 A.2d at 870 n.7. Accord, Commonwealth v. Holland, 480 Pa. 202, 213, 389 A.2d 1026, 1031 (1978); Commonwealth v. Turner, supra 371 Pa. at 429, 88 A.2d at 921.

In the instant case, defense counsel’s request to sequester prosecution witnesses was granted, but the court excluded from its order the alleged victim. Defense counsel was not able to support the request to sequester this witness with any facts or argument that such action was necessary or required by the interests of justice. Neither has he assigned on appeal any prejudice as a result of the court’s refusal to sequester the alleged victim.

Appellant’s identification was not an issue in this case. The occurrence of sexual acts was conceded by the defense. The most significant issue and the one contested most heatedly was whether the alleged victim had consented to the acts in which she and appellant had engaged. They were the only persons present at the time of the alleged offenses. Consequently, there was little likelihood that the prosecuting witness’ testimony would be molded to conform to other testimony received. This was peculiarly so where, as here, she was preceded on the witness stand only by a physician and police officers, none of whom were able to testify concerning the issue of consent. Thus, there was no compelling reason to sequester the alleged victim of the rape. Indeed, under the circumstances of this case, it could be argued with persuasiveness that the sequestration of the alleged victim would have unnecessarily hampered the prosecuting attorney’s efforts to represent the interests of the Commonwealth. In any event, in the absence of prejudice to appellant, we find no abuse of discretion by the trial court in denying the defense request to sequester the prosecuting witness.

We also find lacking in merit appellant’s contention that the trial court should have granted defense motions for mistrial because of the prosecutor’s comment during final argument that “the evidence warrants and demands that you bring in a verdict of guilty on all counts.” This is not an expression of personal opinion, as appellant contends, and was well within the bounds of legitimate advocacy. Commonwealth v. Smith, 490 Pa. 380, 387-88, 416 A.2d 986, 989 (1980); Commonwealth v. Wilcox, 316 Pa. 129, 139, 173 A. 653, 657 (1934); Commonwealth v. Woods, 275 Pa.Superior Ct. 392, 405, 418 A.2d 1346, 1352-1353 (1980); Commonwealth v. Oglesby, 274 Pa.Superior Ct. 586, 593, 418 A.2d 561, 565 (1980); Commonwealth v. Gunderman, 268 Pa.Superior Ct. 142, 148-149, 407 A.2d 870, 873 (1979).

Appellant also argues that the district attorney committed prosecutorial misconduct during his closing argument by using the words “trying to deceive” in reference to appellant’s testimony. Closing arguments were not transcribed; however, defense counsel objected and paraphrased the statement at issue for the record. We are unable to determine from the record before us whether the district attorney was arguing legitimate inferences from the evidence or impermissibly interjecting his personal opinion regarding appellant’s credibility. In view of our decision to award appellant a new trial' on other grounds, we will not determine the merits of appellant’s argument, as the same situation is unlikely to arise on retrial.

Appellant also contends that the trial court should have granted a mistrial when the prosecuting attorney, during cross-examination of a defense character witness, asked: “Have you ever heard persons in the community . . . attribute Mr. Fawcett with the crime of simple assault?” A defense objection was sustained, and the jury was instructed to disregard the question. A motion for mistrial, however, was denied.

A review of the record demonstrates that the trial court’s handling of the objection does not require that a new trial be granted. Robert Marks, a defense witness, had been asked on direct examination if he was familiar with appellant’s reputation for being a “truthful person.” This was irrelevant. In the absence of objection, however, the witness asserted that he knew appellant’s reputation and that it was good.

Until recently, when a defendant has introduced evidence of his own good character, the Commonwealth could then cross-examine the character witness as to whether or not he or she had ever heard persons in the neighborhood attribute particular offenses to the defendant. Commonwealth v. Amos, 445 Pa. 297, 300, 284 A.2d 748, 750 (1971); Commonwealth v. Jenkins, 413 Pa. 606, 607-608, 198 A.2d 497, 498 (1964). The cross-examination, however, was required to pertain to offenses which related to the character trait vouched for on direct examination. Commonwealth v. Becker, 326 Pa. 105, 116, 191 A. 351, 357 (1937); Commonwealth v. Thomas, 282 Pa. 20, 24, 127 A. 427, 428 (1925); Commonwealth v. Colandro, 231 Pa. 343, 355, 80 A. 571, 575-576 (1911); Commonwealth v. Hurt, 163 Pa.Superior Ct. 232, 236, 60 A.2d 828, 830 (1948); McCormick on Evidence, § 191, n.73 (2d Ed. 1972). The question asked on cross-examination in the instant case did not pertain to an offense related to appellant’s reputation for being a “truthful person.” Indeed, there was no relationship whatsoever between the crime of assault and the character trait to which the witness had testified.

In Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), moreover, the Supreme Court abrogated the rule which permitted character witnesses to be cross-examined regarding arrests even when they pertained to the character trait vouched for on direct examination. By so doing, the court has cast a cloud of doubt on the right to cross-examine a character witness concerning any and all prior, relevant offenses absent a conviction therefor.

It is quite clear in the instant case, therefore, that the trial court properly sustained an objection to the question propounded by the District Attorney intending to develop the witness’ knowledge of whether people in the neighborhood had previously attributed to appellant the offense of simple assault. It is significant that the question itself did not affirmatively attribute to appellant either an arrest for or the commission of an assault; and the trial court’s ruling prevented the question from being answered by the witness. Moreover, the jury was instructed to disregard the question. The question alone, therefore, did not deprive the appellant of a fair trial or require that his motion for mistrial be granted.

Appellant’s final averment of error is the most serious and requires that a new trial be granted. During the direct examination of the prosecuting witness, the following exchange occurred:

DISTRICT ATTORNEY: “Do you understand the meaning of the oath that you took when you took the stand?”
WITNESS: “Yes, sir.”
DISTRICT ATTORNEY: “Do you believe in a Supreme Being or a God?”
DEFENSE COUNSEL: “Your Honor, we object. I don’t see the relevancy of this at all—”
THE COURT: “Mr. Campana, before the Supreme God strikes you down, you better—I’ll just say that I’ll overrule your objection and allow an exception on the record for you and allow her to state her belief.”
DISTRICT ATTORNEY: “Do you believe in a Supreme Being or a God?”
WITNESS: “Yes, I do.”
DISTRICT ATTORNEY: “You’re aware that you swore or affirmed an oath to tell the truth at this time?”
WITNESS: “Yes.”
DISTRICT ATTORNEY: “Is the recollection of the incidents that took place October 31, 1976, as you have related to the jury, the truth?”
WITNESS: “Yes.” (N.T. pp. 179-180)

Appellant argues that both the ruling of the trial judge and the manner in which it was delivered constitute reversible error.

The Commonwealth concedes, as it must, that this line of questioning was improper. The belief of the witness in a Supreme Being, elicited for the purpose of bolstering her credibility when her veracity had not been attacked, was irrelevant and inadmissible. See: IV Wigmore, Evidence § 1104 (Chadbourn rev. 1972); McCormick on Evidence, § 49 (2d Ed. 1972).

In Pennsylvania, moreover, such questions are expressly prohibited by statute. The Act of April 23, 1909, P.L. 140, § 3, 28 P.S. § 313, which was in effect at the time of appellant’s trial, provided:

No witness shall be questioned, in any judicial proceeding, concerning his religious belief; nor shall any evidence be heard upon the subject, for the purpose of affecting either his competency or credibility.

See also and compare: Commonwealth v. Greenwood, 488 Pa. 618, 413 A.2d 655 (1980); Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521 (1979); Commonwealth v. Mimms, 477 Pa. 553, 385 A.2d 334 (1978); McKim v. Philadelphia Transportation Co., 364 Pa. 237, 72 A.2d 122 (1950); O'Donnell v. Philadelphia Record Co., 356 Pa. 307, 346 n.5, 51 A.2d 775, 793 n.5, cert. denied, 332 U.S. 766, 68 S.Ct. 74, 92 L.Ed. 351 (1947); Commonwealth v. Rawls, 276 Pa.Superior Ct. 89, 419 A.2d 109 (1980); Commonwealth v. Rainey, 271 Pa.Superior Ct. 240, 412 A.2d 1106 (1979); Commonwealth v. Griffin, 271 Pa.Superior Ct. 228, 412 A.2d 897 (1979); Commonwealth v. Brown, 247 Pa.Superior Ct. 401, 372 A.2d 887 (1977); Commonwealth v. Allen, 239 Pa. Superior Ct. 83, 361 A.2d 393 (1976).

In Commonwealth v. Mimms, supra 477 Pa. at 559 n.8, 385 A.2d at 336 n.8, the Supreme Court declined “to establish a per se rule of reversible error in any case where a reference to religious beliefs occurs. Whether evidence, admitted in violation of a statute, actually deprives a defendant of his right to a fair trial must be viewed in light of the attendant circumstances.”

In the instant case, defense counsel properly made an immediate objection to the prosecuting attorney’s questions concerning the witness’ religious beliefs. This objection was sound; and the trial court’s overruling thereof was erroneous. The error was compounded by the trial judge’s intemperate remark which implied that counsel had by his objection incurred the wrath of God.

“[T]he judge 'should be the exemplar of dignity and impartiality. He should exercise restraint over his conduct and utterances . . . When it becomes necessary ... for him to comment ... he should do so in a firm, dignified and restrained manner, avoiding repartee....’” Commonwealth v. Coleman, 235 Pa.Superior Ct. 379, 386, 341 A.2d 528, 532 (1975), quoting ABA Standards, The Function of the Trial Judge § 6.4 (Approved Draft, 1972). “When a judge subjects counsel for one of the litigants to undeserved oral criticism, the delicate balance upon which the creation of [a fair and impartial] atmosphere depends may be affected. The jury is bound to remember the incident and the danger is too great that the party represented by the lawyer thus criticized may be prejudiced.” Commonwealth v. Horvath, 446 Pa. 11, 18, 285 A.2d 185, 188 (1971). See also: Commonwealth v. Stallone, 281 Pa. 41, 43-44, 126 A. 56, 57 (1924); Commonwealth v. Harrison, 228 Pa.Superior Ct. 412, 415, 323 A.2d 72, 74 (1974).

The principal issue, as we have seen, was whether the prosecuting witness consented to or was physically forced to engage in the sexual acts which both sides agree took place. In large measure the determination of this issue depended upon the credibility of the prosecuting witness and the appellant. Appellant was placed at an unfair disadvantage and was deprived of a fair trial when the trial judge not only allowed improper evidence of the witness’ belief in a Supreme Being but also impliedly placed both God and the court on the side of the Commonwealth.

The judgment of sentence is reversed, and the case is remanded for a new trial.

PRICE, J., dissents.

      . The jury acquitted Fawcett of burglary, aggravated assault and harassment.

      . 18 Pa.C.S. § 3121.

      . 18 Pa.C.S. § 3123.

      . 18 Pa.C.S. § 2902(2).

      . In Wharton’s Criminal Evidence (13th Ed. 1972) at p. 494, the author writes: “It is irrelevant to show the defendant’s reputation for honesty and integrity in a prosecution for adultery (United States v. Chung Sing, 4 Ariz. 217, 219, 36 P. 205; Kee v. State, 28 Ark. 155; People v. Cowgill, 93 Cal. 596, 29 P. 228; People v. Fair, 43 Cal. 137; State v. Dalton, 27 Mo. 13; People v. Fitzgerald, 156 N.Y. 253, 50 N.E. 846; Kauffman v. People, 11 Hun (NY) 82); for truth and veracity ... in a prosecution for statutory rape (State v. Howland, 157 Kan. 11, 138 P.2d 424); for good military conduct in a rape prosecution (State v. Sbrilli, 136 N.J.L. 66, 54 A.2d 221); for truth and veracity in a robbery prosecution (People v. Kendall, 357 Ill. 448, 192 N.E. 378); for honesty and integrity in a murder prosecution (Reis v. State, 130 Tex.Crim. 541, 95 S.W.2d 700)
      Moreover, in the absence of an attack on the credibility of a witness by showing that he has a bad reputation for veracity, a party may not attempt to bolster his witness by showing that he has a good reputation for veracity. See: Commonwealth v. Pressel, 194 Pa.Superior Ct. 367, 370, 168 A.2d 779, 780 (1961); Costello v. Long, 62 Pa.Superior Ct. 13, 17-18 (1915). See also: United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir. 1979), cert. denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979); State v. King, 197 Neb. 729, 731, 250 N.E.2d 655, 657 (1977); State v. Cullen, 506 S.W.2d 22, 24 (Mo.App.1974); IV Wigmore, Evidence § 1104 (Chadbourn rev. 1972); McCormick on Evidence, § 191, p. 455 n. 66 (2d Ed. 1972).

      . Writing for a unanimous' Court, Chief Justice O’Brien quoted with approval that part of the dissenting opinion of Mr. Justice Rutledge in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), wherein he wrote:
      My own preference and, I think, the only fair rule would be to foreclose the entire line of inquiry concerning specific incidents in the defendant’s past, both on cross-examination and on new evi-. dence in rebuttal. This would leave room for proper rebuttal without turning the defendant’s trial for a specific offense into one for all his previous misconduct, criminal or other, and would put the prosecution on the same plane with the defendant in relation to the use of character evidence.
      Id. at 496, 69 S.Ct. at 228 (Dissenting Opinion).

        Commonwealth v. Scott, supra, 496 Pa. at 194, 436 A.2d at 610.

      . This statutory provision is now to be found in the Act of April 28, 1978, P.L. 202, No. 53, § 2(a)(923), 42 Pa.C.S. § 5902(b), which contains language identical to the former statute.


author: CIRILLO, Judge:

text:
    443 A.2d 1177
    COMMONWEALTH of Pennsylvania, v. Carl CIMINO, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 11, 1981.
    Filed April 2, 1982.
    Ronold J. Karasek, Bangor, for appellant.
    William Platt, District Attorney, Allentown, for Commonwealth.

      Before HESTER, CIRILLO and MONTGOMERY, JJ.
   CIRILLO, Judge:

The issue in this appeal is whether the trial court’s failure to advise the defendant of his post-trial rights prevented defendant from making a knowing and voluntary waiver of those rights.

Appellant was convicted following a trial without a jury in Lehigh County Court of retail theft, summary offense, and was sentenced to pay a $50.00 fine plus costs. The trial was conducted as a de novo proceeding upon summary criminal appeal of appellant’s conviction at a magistrate’s hearing.

During the trial, the court denied appellant’s oral procedural motions because they did not comply with Lehigh County Rule 550(a)(5). Rule 550(a)(5) requires that procedural objections must be made in writing and filed at least ten days prior to the hearing and that failure to conform thereto constitutes a waiver of such motions. Appellant’s alternate requests for a continuance to enable him to comply with Rule 550(a)(5), and to have the court accept his motions under advisement and to proceed with the trial were also denied.

The instant appeal from the judgment of sentence was taken on two grounds. First, that, since counsel was retained by appellant only two days prior to the trial de novo, it was impossible for him to satisfy Rule 550(a)(5), and therefore his procedural motions were improperly denied. Second, that the evidence presented at trial was insufficient for the court to find appellant guilty beyond a reasonable doubt.

The Commonwealth originally opposed the appeal on the ground that appellant failed to file post-trial motions for a new trial and in arrest of judgment, as required by Pa.R. Crim.P. 1123(a). The Commonwealth also filed a Petition to Quash the Appeal, which was denied without prejudice with permission to file a supplemental brief thereon. In said supplemental brief, the Commonwealth seeks to have the case remanded to the lower court with the appellant granted leave to file post-trial motions nunc pro tunc, because the trial court did not advise appellant of his post-trial rights. We grant the Commonwealth’s Petition.

This case is governed by Commonwealth v. Steffish, 243 Pa.Super. 309, 365 A.2d 865 (1976). Like the case at bar, Steffish involved the failure to file post-trial motions following a de novo proceeding which was an appeal of a summary offense conviction by a magistrate. Since the court found no evidence in the record that the trial court informed the defendant of his right to file post-trial motions, he was permitted to file said motions nunc pro tunc. The court’s decision was based upon the principle that a defendant cannot knowingly and intelligently waive a right of which he was not aware.

Compare Com. v. Rinier, 255 Pa.Super. 166, 386 A.2d 560 (1977) in which the court remanded the case to the lower court for an evidentiary hearing on whether a waiver of post-trial motions was knowing and voluntary. In Rinier, the court found that the record did not indicate whether counsel’s advice could adequately have substituted for the court’s failure to advise the defendant of his appellate rights.

Rinier is not controlling on the case at bar. Trial counsel’s filing of an appeal without making post-trial motions negates any possibility that his advice to the instant appellant could have adequately substituted for the trial court’s advice that post-trial motions were prerequisite to appeal. Rinier at 567.

It should also be noted that it was the Commonwealth that suggested that the post-trial motions be allowed nunc pro tunc, citing Steffish, supra, in its brief in support of its Petition.

Further, the matter at bar involves a summary conviction. The policy of judicial economy, upon which the practice of waiver is based, would not best be served by adding an evidentiary hearing, as opposed to granting immediate leave to file motions nunc pro tunc, especially since the motions are few and straightforward.

Accordingly, we grant the Commonwealth’s Petition to Quash the defendant’s appeal and remand to the trial court with leave for the defendant to file post-trial motions nunc pro tunc.


author: JOHNSON, Judge:

text:
    443 A.2d 1179
    David TROST, Appellant, v. PORRECO MOTORS, INC.
    Superior Court of Pennsylvania.
    Submitted April 15, 1981.
    Filed April 2, 1982.

      Cygne L. Nemir, Erie, for appellant.
    Joseph T. Messina, Erie, for appellee.
    Before CAVANAUGH, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant (Purchaser) filed an action in assumpsit against Appellee (Vendor) for damages of $8,876.00, plus attorney’s fees under the Consumer Product Warranties Act. Appellant alleged a breach of a warranty of merchantability on a jeep that he purchased from Appellee. Appellant also alleged that he had revoked his acceptance of the jeep.

The court, sitting without a jury, found that a breach of warranty had occurred. As damages for the breach of warranty, the court relieved Appellant of his obligation to pay the remaining portion ($4,777.82) of the purchase price due under the installment sales contract.

Because Appellant had driven the jeep more than 26,000 miles in fifteen (15) months before he returned it to Appellee, the trial court rejected the theory that Appellant had revoked acceptance. Also, the court denied Appellant attorney’s fees under 15 U.S.C.A. § 2310.

Appellant’s exceptions were denied by the court en banc, and judgment was entered against Appellee.

In this appeal, Appellant raises three issues. First, did Appellant revoke his acceptance of the jeep under 12A P.S. § 2-608? Second, did the court err in denying Appellant’s claim for out-of-pocket expenses incurred while he operated the jeep? Third, did the court err in denying Appellant attorney’s fees under 15 U.S.C.A. § 2310?

Although Appellant cites Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 374 A.2d 144 (1976), as support for his first issue, we note that the following principle was stated in that case:

Whether goods are substantially impaired by nonconformity and whether revocation of acceptance is given within a reasonable time are questions of fact subject to the jury’s determination. [Citations omitted.]

Id. at 121, 374 A.2d at 148.

In the instant case, the trial judge sat as fact-finder. After a comprehensive review of the entire record, we find no reason to reverse the trial court’s holding that Appellant was not entitled to assert revocation of acceptance.

Since Appellant’s entitlement to out-of-pocket expenses is dependent upon a finding that he revoked acceptance of the jeep, this issue lacks merit.

Regarding Appellant’s third issue, section 2310(d)(2) of 15 U.S.C.A. specifies that the allowance of damages is within the discretion of the court. Since we do not find that the trial judge abused his discretion in the instant case, this issue also lacks merit.

For the foregoing reasons, the order of July 14, 1980, is affirmed.

      . Section 2310(d)(2) of 15 U.S.C.A. § 2301 et seq. (1980 Supp.) states:

        (2) If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys’ fees would be inappropriate.

      . 12A P.S. § 2-714 states:
      (1) Where the buyer has accepted goods and given notification (subsection (3) of Section 2-607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.
      (2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
      (3) In a proper case any incidental and consequential damages under the next section may also be recovered.
      Current version at 13 Pa.C.S.A. § 2714 (effective Jan. 1, 1980).

      . The relevant portion of 12A P.S. § 2-608 states:
      (1) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it
      (a) on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or
      (b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
      (2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
      Current version at 13 Pa.C.S.A. § 2608 (effective Jan. 1, 1980).

      . The relevant portion of 12A P.S. § 2-711 states:
      (1) Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (Section 2-612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid
      (a) “cover” and have damages under the next section as to all the goods affected whether or not they have been identified to the contract;
      Current version at 13 Pa.C.S.A. § 2711 (effective Jan. 1, 1980).


author: MONTGOMERY, Judge:

text:
    443 A.2d 1181
    Daniel H. and Ann BELSKY v. Harry R. RUTENBERG, Esq. and Rutenberg, Rutenberg, and Rutenberg and Milton LaFair, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1981.
    Filed April 2, 1982.

      Ronald N. Rutenberg, Philadelphia, for appellants.
    Alvin F. DeLevie, Philadelphia, for appellees.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   MONTGOMERY, Judge:

The Defendant-Appellants file the instant appeal from an order of the lower court which granted a motion to quash an appeal which the Appellants took from an award of a board of arbitrators. It is clear that the order of the lower court was erroneous and must be reversed.

The record shows that the Plaintiff-Appellees filed a complaint in assumpsit and trespass against the Appellants, Attorney Harry A. Rutenberg, the law firm in which he was a partner, and Milton LaFair, the former husband of the Plaintiff-Appellee Ann Belsky. The Appellees claimed that Attorney Rutenberg gave erroneous advice to Ann Belsky, concerning tax considerations arising in the course of the settlement of property matters at the time of her divorce from her former husband, Milton LaFair. Such tax advice purportedly caused the Plaintiff-Appellees to suffer unexpected adverse tax consequences.

Appropriate responsive pleadings were filed on behalf of the Defendants and the matter was scheduled to be heard before an arbitration panel. As a result of various circumstances, which were disputed by the parties in later proceedings in the lower court, the Defendants did not appear at the September 9, 1980 hearing before the arbitration panel, which proceeded to hear the case ex parte. The arbitrators rendered an award in favor of the Plaintiffs, and against all Defendants, in the sum of Ten Thousand ($10,000.00) Dollars.

All of the Defendants then filed a timely appeal from the award of the arbitrators. The Defendants attached an affidavit to their appeal which stated that the appeal was not taken for the purposes of delay, but because the defense firmly believed an injustice had been done. The Plaintiffs’ motion to quash the appeal was based upon the contentions that the appeal was taken only for purposes of delay and the affidavit of non-delay was merely a sham and fraud upon the court. The Defendants filed responses to the motion to quash, denying the allegation of delay, and contending that various confusing circumstances had caused the Defendants’ failure to appear at the arbitration hearing.

The lower court examined the situation and apparently concluded that the Defendants had merely ignored the arbitration hearing, feeling that they had an absolute right of appeal. Such circumstances convinced the court that the appeal was not being taken in good faith, and the court granted the motion to quash the appeal.

This Court was presented with a virtually identical situation, arising from the Court of Common Pleas of Philadelphia County, in the case of Dickerson v. Hudson, 223 Pa.Superior Ct. 415, 302 A.2d 444 (1973). In that case, the lower court quashed a timely appeal which had been filed from an adverse arbitration decision, based upon its finding that the appellant had not taken the appeal in good faith. Our Court reversed the order of the lower court, holding that a party appealing from an arbitration award is not obliged to demonstrate that the appeal is taken in good faith or because of a reasonable belief that an injustice had been done. In Dickerson, our decision was based upon our recognition that the lower court’s decision resulted in an infringement of the Constitutional right to trial by jury. We also noted the general policy favoring a liberal construction of our statutes granting rights of appeal. We find the Dickerson decision to be directly applicable here, and must hold that the lower court erred in inquiring into the good faith of the Defendants in taking the appeal from the arbitration award.

The order of the lower court is reversed, the appeal from the award of the arbitrators is reinstated, and the case is remanded for trial. Jurisdiction is not retained.

      . Rule 180, VII(A)(1) of the Arbitration Rules of Philadelphia County provided: “The Appellant shall file ... an affidavit that the appeal is not taken for delay but because he firmly believes an injustice has been done.”


author: HOFFMAN, Judge:

text:
    443 A.2d 1182
    COMMONWEALTH of Pennsylvania v. Vincent N. BURKLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 20, 1981.
    Filed April 2, 1982.
    Petition for Allowance of Appeal Denied Sept. 10, 1982.

      John H. Corbett, Jr., Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before MONTGOMERY, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Appellant contends that the evidence was insufficient to establish that he “possessed” a sharpened screwdriver that had been discovered during a search of his prison cell. For the reasons that follow, we reverse the judgment of sentence for possession of a prohibited offensive weapon, and affirm that for possession of a weapon or implement for escape.

It is well-settled that
[i]n determining whether the evidence is sufficient in law to prove that a defendant is guilty beyond a reasonable doubt of the crime or crimes charged, we must, after a verdict of guilty, accept as true all of the evidence, direct or circumstantial, and all reasonable inferences arising from the evidence upon which the trier of facts could properly have based the verdict.

Commonwealth v. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974) (emphasis in original). So viewed, the facts are as follows: On December 14, 1978, two correctional officers discovered a sharpened screwdriver hidden within appellant’s mattress during a “shakedown search” of his prison cell. All sixty-four cells in appellant’s block were usually left unlocked during the day, and inmates were allowed to travel back and forth to recreational areas, leaving their cells unattended. Throughout the day, selected inmates clean the area, and collect and distribute the laundry. Appellant’s cell contained a television set, prompting occasional visits from other inmates.

Appellant argues first that section 5122(a)(2) of the Crimes Code requires proof of “possession.” We disagree. “Possession” is defined under the Crimes Code as “an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.” Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 301(c). “Our cases have construed this ‘knowledge’ or ‘awareness’ element as the exercise of conscious dominion or control over the [contraband].” Commonwealth v. Rambo, 488 Pa. 334, 337, 412 A.2d 535 (1980). Section 5122(a)(2), however, does not require a showing of “possession.” Rather, it permits a conviction upon a showing of “control”—a less stringent standard. “An inmate commits a misdemeanor of the first degree if he unlawfully procures, makes, or otherwise provides himself with, or unlawfully has in his possession, or under his control, any weapon.” 18 Pa.C.S.A. § 5122(a)(2) (emphasis added). In Commonwealth v. Crowley, 259 Pa. Superior Ct. 204, 393 A.2d 789 (1978), under strikingly similar circumstances, we held that the language

“or under his control,” was added by the 1974 Amendment. This Amendment manifests a legislative awareness of the difficulties of proving constructive possession in cases arising in prisons, because of the difficulty of proving “exclusive control” or “equal access.” By permitting conviction upon proof of “control” only, the legislature avoided this difficulty.

Id., 259 Pa.Superior Ct. at 210, 393 A.2d at 791. See also Commonwealth v. Jackson, 281 Pa. Superior Ct. 310, 422 A.2d 184 (1980); Commonwealth v. Gilliam, 273 Pa. Superior Ct. 586, 417 A.2d 1203 (1980). The evidence established that appellant was the sole inhabitant of the cell where the weapon was found secreted away inside his mattress. Such evidence was sufficient for the jury to find that the weapon was “under [appellant’s] control” and thus properly convict him under section 5122(a)(2).

Appellant argues next that the evidence was insufficient to establish “possession” under section 908(a) of the Crimes Code. We agree. “A person commits a misdemean- or of the first degree if, except as authorized by law, he makes repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon.” Act of December 6,1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 908(a) (emphasis added). Unlike section 5122(a)(2), section 908(a) has not been amended to permit conviction upon proof of “control” only, and thus requires a showing of possession. “Absent literal possession, the Commonwealth may sustain its burden by showing constructive possession, which requires the Commonwealth prove that the accused had the power to control the contraband and the intent to exercise that control.” Commonwealth v. DeCampli, 243 Pa. Superior Ct. 69, 74, 364 A.2d 454, 456 (1976) (emphasis added). See also Commonwealth v. Rambo, supra; Commonwealth v. Fortune, supra; Commonwealth v. Sterling, 241 Pa. Superior Ct. 411, 361 A.2d 799 (1976). Assuming, arguendo, that the screwdriver is a prohibited offensive weapon, the evidence fails to establish that appellant had the intent to exercise control, “The Commonwealth had no direct proof that appellant knew of the presence of the weapon, which would be required to prove that he had the necessary intention to exercise control.” Commonwealth v. Armstead, 452 Pa. 49, 52, 305 A.2d 1, 2 (1973) (evidence insufficient to show defendant knew firearm was in car). See also Commonwealth v. Rambo, supra (evidence insufficient to show defendant knew packages contained hashish); Commonwealth v. Fortune, supra (evidence insufficient to show homeowner knew drugs were in her house); Commonwealth v. Sterling, supra (evidence insufficient to show conscious dominion over hashish). .The mere fact of appellant’s residency in the cell is insufficient to raise the inference that he exercised the requisite intent to control the screwdriver when guards and other inmates had and exercised access to the cell. Commonwealth v. Fortune, supra 456 Pa. at 369, 318 A.2d at 320. The Commonwealth has thus failed to prove that appellant had conscious dominion over the weapon. Accordingly, we must reverse appellant’s conviction for possessing a prohibited offensive weapon, and discharge him on that offense.

Judgment of sentence for possession of a weapon or implement of escape affirmed, and judgment of sentence for possession of a prohibited offensive weapon is reversed and appellant discharged on that offense.

       Appellant was sentenced to one and one-half to three years as a result of his convictions. The lower court, upon being reminded that appellant had been convicted on two charges, indicated that it would “cross-file the other one.” We presume that the lower court intended concurrent one and one-half to three year terms on each of the charges. See Pa.R.Crim.P. 1406(a) (sentences presumed concurrent unless stated otherwise). When an appellant has been convicted and sentenced on more than one charge, and one of the convictions was subsequently held invalid, “the proper course is usually to vacate the sentences and remand for resentencing on the valid counts without consideration of the invalid one.” Commonwealth v. Lockhart, 223 Pa. Superior Ct. 60, 65, 296 A.2d 883, 886 (1972), quoting McGee v. United States, 462 F.2d 243, 246 (2d Cir. 1972). In the present case, however, both convictions concern a single incident. The record is clear that the trial court treated them as a single offense when sentencing. Were we to remand, the same sentence would surely be given. Under these circumstances, “a remand would be a mere procedural exercise.” Commonwealth v. Grant, 235 Pa. Superior Ct. 357, 366, 341 A.2d 511, 516 (1975). See also Commonwealth v. Eberts, 282 Pa. Superior Ct. 354, 422 A.2d 1154 (1980) (concurrent sentences may obviate the need for remand). Accordingly, we need not remand for resentencing.