author: WIEAND, Judge:

text:
    465 A.2d 1069
    Kurt KOSOWAN and Regina Kosowan, Appellants, v. MDC INDUSTRIES, INC. and Hall-Woolford Wood Tank Company, Inc.
    Superior Court of Pennsylvania.
    Argued April 5, 1983.
    Decided Sept. 16, 1983.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.

      Charles S. Lieberman, Philadelphia, for appellants.
    Jerome Gerber, Philadelphia, for MDC, appellee.
    Earl T. Britt, Philadelphia, for Hall-Woolford, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

Kurt Kosowan, an employee of Hall-Woolford Wood Tank Company, Inc. (Hall-Woolford), sustained personal injuries when he fell through a rotted portion of a wooden platform surrounding a water tank which his employer had contracted to dismantle. He and his wife filed an action in trespass against MDC Industries, Inc., the owner of the water tank, and also against Hall-Woolford. The trial court sustained preliminary objections in the nature of a demurrer filed by Hall-Woolford on grounds that an action by an employee against his employer is barred by Section 303(a) of the Workmen’s Compensation Law of June 2, 1915, as amended, 77 P.S. § 481(a). On appeal, Kosowan argues that HallWoolford should be subject to a common law tort action because it had negligently designed and installed the tank and platform whose “design, manufacture, assembly, inspection, testing, use, sale and maintenance” had caused a defective and unsafe condition. We reject this argument and affirm the order entering judgment in favor of HallWoolford.

Preliminarily, we are constrained to observe that immunity from suit is an affirmative defense which, according to Pa.R.C.P. 1030, must be pleaded as “New Matter” in an answer. See: Budzichowski v. Bell Telephone Company of Pennsylvania, 299 Pa.Super. 392, 395 n. 3, 445 A.2d 811, 812 n. 3 (1982); Mackey v. Adamski, 286 Pa.Super. 456, 466, 429 A.2d 28, 33 (1981); Turner Construction Company v. Hebner, 276 Pa.Super. 341, 347, 419 A.2d 488, 490 (1980). Kosowan, however, has not challenged the propriety of Hall-Woolford’s use of preliminary objections to assert the defense of immunity from suit; and, therefore, he has waived the right to object. See: Duquesne Slag Products Co. v. Lench, 490 Pa. 102, 105, 415 A.2d 53, 54 (1980); Rufo v. The Bastian-Blessing Co., 417 Pa. 107, 114, 207 A.2d 823, 826 (1965); Swartz v. Masloff 62 Pa.Cmwlth. 522, 525, 437 A.2d 472, 474 (1981); Commonwealth ex rel. Milk Marketing Board v. Sunnybrook Dairies, Inc., 32 Pa.Cmwlth. 313, 316, 379 A.2d 330, 332 (1977). Cf. Stein v. Richardson, 302 Pa.Super. 124, 139-140, 448 A.2d 558, 566 (1982).

Kosowan does not dispute that his injury arose within the course and scope of his employment and was directly related thereto. Rather, he contends that Hall-Woolford in the present situation possesses two separate identifies or capacities: (1) that of an employer which is immune from suit by virtue of the Workmen’s Compensation Act; and (2) that of a seller of goods to the general public which enjoys no immunity from suit. He urges us to adopt the “dual capacity” doctrine and permit suit against Hall-Woolford in its capacity as manufacturer of a defective product. Under the dual capacity doctrine, recognized in a small minority of states, “ ‘an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.’ 2A, Larson, Law of Workmen’s Compensation, § 72-80, at p. 14-112. The rationale behind the dual capacity theory ... is that the existence of an employment relationship between the injured party and the manufacturer of the product causing the injury is of reduced importance when viewed in the context of a products liability action____ [T]he theory reasons that since the employer is also the manufacturer of the product which allegedly caused injury and which would thus give rise to products liability were it not for the existence of the employment relationship, liability ought not to be avoided merely because of that employment relationship.” Kohr v. Raybestos-Manhattan, Inc., 522 F.Supp. 1070, 1073 (E.D.Pa.1981). See also: Silvestri v. Strescon Industries, Inc., 312 Pa.Super. 82, 84, 458 A.2d 246, 247 (1983); Budzichowski v. Bell Telephone Company of Pennsylvania, supra 299 Pa.Super. at 398, 445 A.2d at 814; Anno., Workmen’s Compensation Act as Furnishing Exclusive Remedy for Employees Injured by Product Manufactured, Sold, or Distributed by Employer, 9 A.L.R. 4th 873 (1981).

Section 303(a) of the Pennsylvania Workmen’s Compensation Act provides: “the liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of .any injury or death____” 77 P.S. § 481(a) (emphasis supplied). See also: Bigley v. Unity Auto Parts, Inc., 496 Pa. 262, 273, 436 A.2d 1172, 1178 (1981). Injury is defined by the Act as:

“an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury; and wherever death is mentioned as a cause for compensation under this act, it shall mean only death resulting from, such injury and its resultant effects, and occurring within three hundred weeks after the injury. The term ‘injury arising in the course of his employment,’ as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon, sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer’s business or affairs are being carried on, the employe’s presence thereon being required by the nature of his employment.”

77 P.S. § 411(1) (emphasis supplied).

“A straightforward reading of the Act demonstrates that there are only two requirements for compensability—(1) that the injury arose in the course of employment and (2) that the injury was related to that employment.” Kraw-chuk v. Philadelphia Electric Co., 497 Pa. 115, 120, 439 A.2d 627, 630 (1981) (emphasis in original). Accord: Hala-ski v. Hilton Hotel, 487 Pa. 313, 318, 409 A.2d 367, 369 (1979); Port Authority of Allegheny County v. Workmen’s Compensation Appeal Board, 66 Pa.Cmwlth. 393, 394, 444 A.2d 837, 838 (1982). We cannot disregard the clear and unambiguous language of the Act which provides that where injury to an employee arises within the scope of his employment and is related thereto, “the liability of an employer ... shall be exclusive and in place of any and all other liability to such employes____” 77 P.S. § 481(a).

Kosowan’s reliance upon Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982) is misplaced. The question for determination in that case was “whether the injury [had] occurred in the course of the employment.” Id., 497 Pa. at 250, 439 A.2d at 1163. The Supreme Court observed that “Ms. Tatrai’s presence in the emergency room was not in furtherance of the affairs of her employer and was not required by reason of her employment.” Therefore, the Court held, “Workmen’s Compensation [was] not her exclusive remedy.” Id., 497 Pa. at 255, 439 A.2d at 1166. It is apparent, therefore, that in holding Ms. Tatrai’s employer not immune from suit, the Court relied upon the conclusion that the Workmen’s Compensation Act did not apply to Ms. Tatrai’s injuries. It did not adopt generally the doctrine of dual capacity.

In contrast to the facts of Tatrai, Kosowan was injured while engaged in the furtherance of the business of Hall-Woolford. His injuries resulted from a condition of the very premises upon which he was required to perform the duties of his employment. His injury, therefore, was precisely the type of injury which the legislature intended to include within the exclusive remedy provisions of the Workmen’s Compensation Act.

“Among the common law duties placed on an employer was the responsibility to provide a safe place to work as well as safe appliances, tools, and equipment for work. An employer was also required to give warnings of hidden dangers to employees and to promulgate and enforce rules for the conduct of employees which would make the work place safe. See: W. Prosser, Torts § 80 (4th ed. 1971).” Longever v. Revere Copper and Brass Incorporated, 381 Mass. 221, 223-224, 408 N.E.2d 857, 859 (1980). An employee injured as a result of a breach of duty by his employer could sue his employer in tort, but due to the defenses available to the employer, the employee’s likelihood of recovery was not always great. The Legislature, in response, enacted the Workmen’s Compensation Act to provide employees with compensation for injuries sustained within the scope of their employment. In exchange for the right to compensation without the burden of establishing fault, employees gave up their right to sue the employer in tort for injuries received in the course of employment. See: Spidle v. Livingston Construction Co., Inc., 311 Pa.Super. 201, 206, 457 A.2d 565, 567 (1983). The Workmen’s Compensation Act has not relieved the employer of a duty to provide a safe working environment for his employees. It has simply eliminated the employee’s right to maintain a tort action for such injuries in exchange for what the Legislature perceived to be a more equitable and certain system of compensation. The fact that Kosowan’s employer owed a duty to the general public as a manufacturer and retailer of goods is not alone sufficient to create an exception to the provisions of the Workmen’s Compensation Act which provide that employers are immune from their employees’ suits for injuries arising within the course and scope of employment. See and compare: Kohr v. Raybestos-Manhattan, Inc., supra; Wagner v. National Indemnity Co., 492 Pa. 154, 422 A.2d 1061 (1980); Tsarnas v. Jones & Laughlin Steel Corporation, 488 Pa. 513, 412 A.2d 1094 (1980); Silvestri v. Strescon Industries, Inc., supra; Budzichowski v. The Bell Telephone Company of Pennsylvania, supra; Heckendorn v. Consolidated Rail Corporation, 293 Pa.Super. 474, 439 A.2d 674 (1981); Berger v. U.G.I. Corporation, 285 Pa.Super. 374, 427 A.2d 1161 (1981). See also: Longever v. Revere Copper and Brass Incorporated, supra; Mapson v. Montgomery White Trucks, Inc., 357 So.2d 971 (Ala. 1978); Needham v. Fred’s Frozen Foods, Inc., 171 Ind.App. 671, 359 N.E.2d 544 (1977); Winkler v. Hyster Co., 54 Ill.App.3d 282, 12 Ill.Dec. 109, 369 N.E.2d 606 (1977); Rosales v. Verson Allsteel Press Co., 41 Ill.App.3d 787, 354 N.E.2d 553 (1976). Kosowan’s suit against Hall-Woolford was barred by Section 303(a) of the Workmen’s Compensation Act, 77 P.S. § 481(a), and the trial court correctly dismissed the complaint with prejudice.

Affirmed.

      . The complaint contained averments that Hall-Woolford’s negligence consisted of the following:
      (a) failing to so design, construct, assemble, inspect, test or maintain said wood tank platform so that it had a safety net around its perimeter and so that the platform would not lapse into a rotted condition;
      (b) failing to anticipate that in the normal course of operation the wood tank platform would possibly be rotted, causing an imminently dangerous condition for those such as plaintiff;
      (c) failing to warn of the inherent dangers of the wood tank platform as aforesaid;
      (d) failing to provide adequate warning as to the danger forseeable when the platform was constructed and/or modified and/or maintained that the wood could lapse into a rotted condition;
      (e) failing to provide plaintiff with a safety belt;
      (f) failing to advise and warn of the availability of certain safety devices that would have lessened or prevented injury to plaintiff, Kurt Kosowan, the lack of which rendered the platform unreasonably dangerous;
      (g) failing to comply with the applicable OSHA regulations;
      (h) by being liable to plaintiff, Kurt Kosowan, pursuant to the doctrine of Res Ipsa Loquitur;
      (i) by allowing its workers in general and plaintiff in particular to work on the said wood tank platform and walkway without adequate inspection as to its safety and susceptibility to rot and collapse when it knew, or in the exercise of reasonable inspection should have known, that it would not collapse, imperiling the safety and lives of its workmen and plaintiff;
      (j) by being otherwise negligent.

      . Pa.R.C.P. 1030, made applicable to trespass actions by Pa.R.C.P. 1041, provides:
      All affirmative defenses, including but not limited to the defenses of accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel failure of consideration, fraud, illegality, immunity from suit, impossibility of performance, laches, license, payment, release, res judicata, and waiver and, unless previously raised by demurrer and sustained, the defenses of statute of frauds and statute of limitations, shall be pleaded in a responsive pleading under the heading "New Matter.” A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading, (emphasis added).

      . The Supreme Court granted allocatur in this case on April 27, 1982.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    465 A.2d 1248
    Edward EICHMANN a/k/a Edward T. Eichmann v. Columbia Petrosina EICHMANN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 2, 1982.
    Filed April 22, 1983.
    Reargument Denied July 5, 1983.

      Columbia P. Eichmann, appellant, in propria persona.
    Michael S. Bomstein, Philadelphia, for appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in: (1) dismissing the master’s report recommending denial of the divorce; and (2) granting appellee a divorce. We agree and, accordingly, reverse the order of the lower court and deny the divorce.

The parties were married on May 15, 1948 and resided together until 1964, when appellant-wife left the marital abode. Appellee, alleging desertion, filed for divorce a.v.m. on May 20, 1978. Following two evidentiary hearings, the master filed his report on November 18, 1980, finding, inter alia, that appellant had left the home as a result of appellee’s mistreatment and recommending that the divorce be denied. The lower court, however, dismissed the master’s report and granted the divorce. Appellant then took this pro se appeal.

Appellant contends that the lower court erred in dismissing the master’s report and granting the divorce. “In a divorce case it is the responsibility of this Court to make a de novo evaluation of the record of the proceedings and to decide independently of the master and the lower court whether a legal cause of action exists.” Dukmen v. Duk-men, 278 Pa.Superior Ct. 530, 534, 420 A.2d 667, 670 (1980). However, “[a] Master’s Report in a divorce action, although advisory only is to be given fullest consideration, particularly on the issue of credibility of witnesses.” Herwig v. Herwig, 279 Pa.Superior Ct. 65, 69, 420 A.2d 746, 748 (1980). Appellant was charged with desertion, i.e., the “wilful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for and during the term and space of two years.” Act of May 2, 1929, P.L. 1237 § 10, 23 P.S. § 10(l)(d) (repealed) (for current version, see Divorce Code Act of April 2, 1980, P.L. 63, No. 26 § 201(a)(1), 23 P.S. § 201(a)(1)). The master found that although appellant had, in fact, left the marital home for more than two years, her departure “was justified by [appellee’s] treatment” of her and thus was not wilful and malicious. Accordingly, he recommended denial of the divorce.

It is well-settled that when a plaintiff has proven the defendant’s two-year absence from the marital abode, the burden shifts to the defendant to show by clear and convincing evidence that the separation was excused or justified. Zimmerman v. Zimmerman, 428 Pa. 118, 123, 236 A.2d 785, 788 (1968); Wagner v. Wagner, 223 Pa.Superior Ct. 241, 244, 299 A.2d 45, 47 (1972). “Reasonable cause which justifies one spouse leaving the habitation of the other is that which would entitle the separating party to a divorce.” Herwig v. Herwig, supra 279 Pa.Super. at 69, 420 A.2d at 748. The master found that appellee had physically and mentally abused appellant, striking her whenever she expressed an opinion. Appellant, fearing for her safety, during one quarrel, fled the house after appellee had become enraged and slapped her “hard” across the face. We agree with the master that appellee’s mistreatment of appellant was sufficient to support a decree of divorce either on grounds of indignities, see Trimbur v. Trimbur, 171 Pa.Superior Ct. 541, 547, 91 A.2d 307, 309 (1952) (“habitual verbal aspersion and imperious demands ... accompanied by threats of physical violence and actually followed by an assault and battery” amounts to indignities), or cruel and barbarous treatment, see Darcy v. Darcy, 197 Pa.Superior Ct. 100, 103, 176 A.2d 919, 921 (1962) (actual personal violence rendering cohabitation unsafe amounts to cruel and barbarous treatment), and thus sufficient to excuse or justify her desertion. Therefore, the lower court erred in dismissing the master’s recommendations and in granting the divorce, and accordingly, we must reverse its order and deny the divorce.

Order of the lower court reversed and divorce denied.

      . Appellant also argued this case without counsel.

      . The lower court offered no reason for its dismissal of the master's finding that appellee’s conduct justified appellant's leaving. Its contention that the master distorted testimony “solely because of [the master's] annoyance and contempt for [appellee's] attorney," is simply unsupported by the record.


author: BROSKY, Judge:

text:
    465 A.2d 1250
    COMMONWEALTH of Pennsylvania v. William SORRELL, Appellant.
    Superior Court of Pennsylvania.
    Argued March 11, 1980.
    Filed Sept. 9, 1983.

      William Lee Akers, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

In June, 1978 appellant William Sorrell was found guilty by a jury of charges of robbery and conspiracy. He was sentenced to a term of imprisonment of 8 to 16 years and this appeal followed. We reverse and remand for a new trial because: 1) 42 Pa.C.S. § 5104(c) pursuant to which the lower court denied appellant’s attempt to waive his right to jury trial, has been declared unconstitutional by our Supreme Court; and 2) certain incriminating statements made by appellant should have been suppressed as being the fruit of an illegal arrest.

Before discussing the circumstances of appellant’s arrest, we will address the jury waiver issue.

Prior to trial, appellant moved, pursuant to Pa.R.Crim. Proc. 1101, to waive trial by jury. That motion was opposed by the Commonwealth which asserted a right to jury trial equal to that of a defendant, citing 42 Pa.C.S. 5104(c). The lower court believed that the Commonwealth’s reliance on 42 Pa.C.S. 5104(c) precluded it from granting appellant’s request for non-jury trial.

On direct appeal Mr. Sorrell argued that § 5104(c) was unconstitutional. Other appellants, including Mr. Sorrell’s co-defendant June O’Bryant raised the same issue and our court subsequently certified the question to our Supreme Court.

In Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982) the Supreme Court held that 42 Pa.C.S. § 5104(c) is unconstitutional because it conflicts with Pa.R.Crim.Proc. 1101. The case was remanded to our court with instructions to enter an order consistent with the Supreme Court opinion.

Based on our recent opinion in Commonwealth v. Giaccio, 311 Pa.Super. 259, 457 A.2d 875 (1983), we reverse and remand this case for new trial. In Giaccio, the appellant argued, as Mr. Sorrell does, that he was unconstitutionally denied the right to waive trial by jury. We noted the Supreme Court’s decision in Sorrell, and remanded for new trial with instructions to the lower court that if the appellant on re-trial again stated his intention to waive jury trial, the court should proceed under Rule 1101 to decide whether to approve the waiver. As in Giaccio, we remand and also instruct the lower court, if it decides to deny the jury waiver request, to state on the record its reasons for the denial.

In addition to the afore discussed issue, appellant also contends that certain incriminating statements made by him should not have been admitted into evidence because they resulted from an illegal arrest. We agree.

The incident which led to the charges against appellant occurred on December 17, 1977 when the Ellis’ Luncheonette in Philadelphia was robbed. Appellant was arrested without a warrant in his home at approximately 9:30 p.m. on January 5, 1978 and charged with having participated in the robbery. Mr. Sorrell argues that the arrest was made without probable cause.

After his arrest Mr. Sorrell was taken to police headquarters where he was questioned by the arresting officer until approximately 11:00 p.m. During this interrogation appellant apparently made no incriminating statements. However, he was questioned again at 11:30 at which time he seems to have implicated himself in the commission of the robbery. At 1:00 a.m. January 6, appellant was identified in a photo array by an employee of the store which had been robbed.

In the suppression hearing the officer was asked why he had resumed questioning Mr. Sorrell at 11:30. He responded that he believed that he had received new information which implicated appellant. However, when he was asked the nature of this additional information, the officer could not recall what he had been told or by whom. Based on this record, we cannot but find that as to the 11:30 interrogation, no intervening events had occurred since the arrests. Since, as we will explain, we believe the arrest to have been without probable cause, we conclude that the 11:30 statement should have been suppressed as a fruit of that arrest.

On appeal from the denial of a suppression motion we will consider only the evidence presented by the Commonwealth and so much of the evidence for the defense as fairly read in the context of the record as a whole remains uncontradicted. Com. v. Baker, 299 Pa.Super. 241, 445 A.2d 544 (1982).

The arresting officer explained at the suppression hearing that he decided to arrest appellant based solely on information given to him by an informant.

It is axiomatic that the Constitution of the United States prohibits the arrest of a person unless the arresting officer has probable cause to believe that a crime has been or is being committed. See Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973).

The test to be employed in determining whether probable cause exists to arrest is equally well established. As we explained in Commonwealth v. Brown, 230 Pa.Super. 214, 219, 326 A.2d 906, 908 (1974):

Probable cause to justify a warrantless arrest exists if the facts and circumstances known to the officer at the time of the arrest would warrant a prudent man in believing that an offense has been committed, and the suspect was the perpetrator of that offense: (citations omitted). Those facts and circumstances, however, are not those that a legal technician might desire when examining the situation in retrospect; but, rather, the practical considerations of everyday life upon which reasonable and prudent men rely[.]

Probable cause can be founded in hearsay evidence, as is the case when information is given to a police officer by a third party. The Betrand Appeal, supra.

Since the Supreme Court’s decisions in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 27 L.Ed.2d 637 (1969), we have employed a “two-pronged test” to determine whether an informer’s tip can form the basis of probable cause. The test that evolved from those cases required that an officer know the underlying circumstances from which the informer concluded that the suspect participated in the crime. Second, the officer was required to have some reasonable basis for concluding that the source of the tip was reliable. See Betrand Appeal, Id.

In a recent decision, however, the United States Supreme Court abandoned the “two-pronged test” and replaced it with a “totality of circumstances” approach.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) an anonymous informant had sent a letter to the Bloomingdale, Illinois Police Department in which he accused Lance and Susan Gates of dealing illegally in narcotics. The letter described in detail a trip that the Gates would take to procure drugs. The letter predicted that: the Gates would travel to Florida separately on specified dates; that Mrs. Gates would drive and Mr. Gates would fly; that Mr. Gates would drive the car back to Illinois; and that the trunk would be loaded with narcotics. The police investigated the tip and corroborated all the allegations, except the presence of narcotics in the trunk.

The police then sought a search warrant for the Gates’ residence and their automobile. The state court judge to whom application was made found that probable cause had been established. However, the Illinois appellate courts reversed saying that the affidavit submitted in support of the search warrant application failed to establish probable cause. The Illinois Supreme Court found that the anonymous letter alone would not provide a basis on the finding that probable cause existed, since it did not meet the Aguilar-Spinelli “two pronged test.”

While the United States Supreme Court indicated that it was inclined to agree that the letter alone was not a sufficient basis for a finding of probable cause, the court found that the corroboration of the informant’s allegations by the police provided the police with reason to act on the informer’s tip.

In explaining its holding the Supreme Court said that it would no longer employ the Aguilar-Spinelli test but instead reaffirmed the totality of the circumstances analysis that traditionally has informed probable cause determinations. Gates at —, 103 S.Ct. at 2332.

The court explained the approach to be taken as follows: The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place and the duty of the reviewing court is simply to insure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed. Id. at —, 103 S.Ct. at 2332.

Although Gates involved seizure of tangible property as opposed to seizure of the person, as in the instant appeal, the principles enunciated in that case surely apply to cases such as ours. As the Supreme Court explained in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639 (1980), “The simple language of the [Fourth] amendment applies equally to seizures of persons and to seizures of property.” In that case the propriety of a warrantless arrest was at issue and the court explained its decision in part by reference to cases involving searches and seizure of property.

In the present case, of course, there was no review by a magistrate, since this was a warrantless arrest. Without judging the propriety of proceeding without a warrant (see n. 2 ante) we do note the Supreme Court’s expressed preference for the use of warrants, which as the court explained, “reduce[ ] the perception of unlawful or intrusive police conduct, by assuring ‘the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.’ Gates supra 462 U.S. at —, 103 S.Ct. at 2331.

Although no review by a magistrate took place in this case, the principles enunciated in Illinois v. Gates clearly pertain to our decision.

Applying the test used by the Gates court, we conclude that Mr. Sorrell’s arrest was without probable cause.

The arresting officer explained at the suppression hearing that he learned of appellant’s involvement in the robbery from the brother of appellant’s co-defendant June O’Bryant who was being sought by the police.

Mr. O’Bryant’s brother, Lewis, was picked up by the police and during questioning by them, said that his brother and appellant had committed the robbery in question. There is some question as to whether Lewis had been asked about the whereabouts of his brother by the police, but in any event, he did volunteer that his brother had committed the crime. Lewis offered to take the police to a place where his brother could be found, but when they arrived at the location his brother was not there. Lewis did tell the police that he knew where a gun could be found and the gun was found where Lewis had said it would be. In fact the police already had a search warrant for the house in which the gun was found, because they were looking for two chrome hand guns that had been used in a series of incidents.

Based on this information, the police proceeded to arrest Mr. Sorrell.

Although the Supreme Court has abandoned the Aguilar-Spinelli “two-pronged test,” we do not interpret their opinion in Gates as abrogating all the factors upon which that test was based. Indeed, the court was careful to explain that the veracity of the informant and the basis of his knowledge are still relevant considerations in determining whether probable cause exists.

There is no indication that the arresting officer had any reason to believe that Lewis O’Bryant was a truthful person. In fact at the time he made the statement, he was being questioned about his involvement in other crimes. There is no evidence that he had provided the police with accurate information in the past. In fact, his tip as to the whereabouts of his brother proved wrong.

The Commonwealth points to the discovery of the gun as corroboration of Lewis’ claims. It is true that corroboration can enhance the reliability of an otherwise unknown informant. See Illinois v. Gates, supra. See also Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

In Draper and Gates the informer provided explicit details of activities that would be undertaken by certain persons in the future. The corroboration of these otherwise innocent facts, knowable only to one with close access to the suspects, gave the police reason to believe that the remainder of the tips—that criminal activity was about— were also reliable.

In contrast, part of Lewis O’Bryant’s information was inaccurate. He did not provide detailed information, nor did he predict future events. Instead, he told the police of the presence of a gun in his mother’s residence. Compare Gates, supra where the court noted that the anonymous letter contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties not easily predicted.

Nor did Lewis O’Bryant inform the officer of the basis of his knowledge. True, he was the brother of appellant co-defendant (then a suspect) but how does that relate to his knowledge of Mr. Sorrell’s activities? How does the discovery of a gun in his mother’s residence suggest that he had reliable information about Mr. Sorrell’s involvement? We think this very limited information—essentially only an allegation from an unproven source—was not sufficient to permit a common sense finding of probable cause to arrest appellant. We turn, then, to the question of whether certain statements made by appellant should have been suppressed.

The well established test to be employed in determining whether a statement should be suppressed as to fruit of an illegal arrest is:

... Whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).

Appellant’s first incriminating statement was made during an interview at police headquarters two hours after his arrest. A previous interview had ceased at 11:00 and at 11:30 appellant was again questioned. Under these circumstances, we believe the statement was directly related to the illegal arrest. See Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1979).

The second statement was made on January 9, following what was to have been a preliminary hearing. Appellant was in police custody, as he had been since his arrest. The police officer to whom the second statement was made testified at the suppression hearing that appellant volunteered the statement and in fact told the officer that he wished to speak to him.

In Commonwealth v. Shaw, 494 Pa. 364, 370, 431 A.2d 897, 900 (1981) our Supreme Court interpreted the earlier quoted language from Wong Sun, supra, as indicating that “a defendant’s exercise of his own free will in confessing will render his confession admissible, despite the fact that the confession would not have been obtained but for the illegal arrest.” (Emphasis in original).

In Commonwealth v. Bogan, 482 Pa. 151, 158, 393 A.2d 424, 427 (1978), the court explained that Wong Sun provides that not all confessions obtained from an illegally arrested person are per se inadmissible at trial.

The court in Bogan observed:

The Court in Wong Sun noted that challenged evidence may be purged of the primary taint only if (1) it results from “ ‘an intervening independent act of a free will’ ”, ... or (2) if the connection between the arrest and the evidence has “become so attenuated as to dissipate the taint.”

Id., 482 Pa. at 156, 393 A.2d at 427. (Citation omitted).

The test followed by the Bogan court involved the consideration of four factors: (1) whether Miranda warnings were given; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct. See also In Interest of Brown, 273 Pa.Super. 556, 417 A.2d 1188 (1980).

At the suppression hearing the officer to whom the second statement was made testified that appellant was advised of his Miranda rights prior to making the statement.

The statement was made more than three days after appellant’s arrest, following his arraignment and the identification of him in a photo array.

Most importantly, the officer testified that he spoke with appellant on January 9 at Mr. Sorrell’s request. See Commonwealth v. Shaw, supra as to the exercise of free will by appellant.

Although we have found appellant’s arrest to have been without probable cause, we cannot find the circumstances surrounding it so flagrant a violation of our law as to override the other aforementioned considerations which weigh heavily in favor of permitting the use of the January 9 statement as evidence at trial.

We affirm the denial of the suppression motion as to the January 9 statement and reverse as to the statement of January 5.

Judgment of sentence reversed and case remanded for proceedings consistent with this opinion. We relinquish jurisdiction.

      . 42 Pa.C.S. § 5104(c) effectively gives the Commonwealth a veto over a defendant’s request to waive jury trial, whereas Pa.R.Crim.Proc. 1101, promulgated by the Supreme Court, provides that the court make the determination as to whether jury trial can be waived.

      . Appellant also contends that his arrest in his home was invalid because it was made without warrant. U.S. v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). However, the record of the suppression hearing indicates that this argument was not raised at that time. Nor was it raised in post-verdict motions. The record for this case does not contain a copy of the suppression motion which Pa.R.Crim.Proc. 323(d) must specify the grounds for suppression. Based on the record before us, we are inclined to agree with the Commonwealth’s claim that the issue is waived. In any event, however, given our finding that the arrest was made without probable cause, we need not reach the question.

      . As to our retroactive application of Gates to the present case, see United States v. Johnson, supra.


author: POPOVICH, Judge: WIEAND, Judge,

text:
    465 A.2d 1256
    COMMONWEALTH of Pennsylvania v. Adolfo CARRILLO, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 28, 1983.
    Filed Sept. 16, 1983.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.

      Michael Alan Seidman, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Philadelphia County denying appellant’s, Adolfo Carrillo’s Post-Conviction Hearing Act (PCHA) petition. 19 P.S. § 1180-1 et seq., as amended; reenacted as 42 Pa.C. S.A. §§ 9541-9551. We affirm.

The salient facts are as follows: In a non-jury trial before the Honorable Alex Bonavitacola, appellant was adjudged guilty of the shooting death of Santiago Garcia and possession of an instrument of crime. Boiler-plate post-trial motions that questioned the sufficiency of the evidence were filed by trial counsel. Subsequently, in his brief, counsel raised issues concerning the suppressibility of a confession and the commission of error on the part of the trial judge in allowing certain hearsay testimony into evidence. In response to the allegations proffered by appellant’s counsel, the trial judge ruled only upon the sufficiency of the evidence and held all other issues waived, despite the submission of a brief to supplement the motions. It did so on the basis of Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

On appeal, the same counsel who represented appellant throughout the criminal process raised, in addition to various matters categorized by the reviewing court as assailing the sufficiency of the evidence, three issues relating to the admissibility of an inculpatory statement, secured during an interrogation in which a police officer acted as the interpreter for the Spanish-speaking appellant.

Our Supreme Court sustained the trial court’s ruling on all counts, including the waiver issue under Blair, and, thus, declined to decide the propriety of the circumstances under which the inculpatory statement was secured and its admissibility at trial. Commonwealth v. Carrillo, 483 Pa. 215, 395 A.2d 570 (1978) (Manderino,'J., Dissenting).

On August 16, 1979, appellant filed a pro se PCHA petition claiming that, inter alia, prior counsel (David Wein-stein) was incompetent because:

(a) Counsel Failed to protect Petitioner’s Constitutionally secured Rights as set forth by the Constitution of the State of Pennsylvania.
(b) Counsel failed to preserve meritorous [sic] issues for Appellate Review.

(Appellant’s pro se PCHA petition at 3)

The remaining errors alleged by the appellant concerned assertions that the Commonwealth encroached upon his right to appeal, its use of perjured testimony, inadmissible hearsay and an inculpatory statement in proving its case at trial. Id. Additionally, at appellant’s request, (private) counsel was appointed and filed an amended PCHA petition, which represented in relevant part that:

9. Your petitioner is entitled and is eligible for relief in that:
(c) His convictions and sentence are as a result of the following:
(1) A confession was introduced at the trial of this case despite its being unlawfully and illegally secured from the petitioner in that he had never before been arrested and was unfamiliar with the criminal justice system. Further, he was born and raised in Puerto Rico and resided in Philadelphia, Pennsylvania for a short length of time and spoke absolutely no English and could not read or write English. Further, the interpreter used by the interrogating homicide detective at 8th and Ract [sic] Streets was an uneducated Philadelphia Policeman who was ineffective and was not a competent and professional interpreter and was neither learned nor an expert in interpreting. Further, professional, experienced and educated interpreters were readily available upon request of the Police Department. Further, considering the size of the Spanish community in Philadelphia, a professional, experienced and educated interpreter should be available at all times in situations analogous to the instant one. Consequently, the confession obtained from your petition was done so in deregation [sic] of his due process and constitutional rights;
(2) Your petitioner did not knowingly and intelligently waive his right to a trial by jury;
(3) The “interpreter’s” translation during the interrogation of petitioner to the interrogating detective who repeats same was hearsay;
(4) A mistrial should have been moved for by counsel and granted where the Assistant District Attorney accused petitioner of tampering with a witness and so informed the trial judge and a request was made for revocation of petitioner’s bail; all of which prejudiced and biased the fact finder;
(5) The trial judge failed to comply with Rule 1123 of the Rules of Criminal Procedure; and
(6) Your petitioner was represented at the pre-trial, trial and post-trial proceedings in this matter by ineffective counsel in that:
(a) Said counsel failed to raise the specific issues that are stated above as well as others that occurred during all proceedings;
(b) Counsel neglected to effectively and competently advise petitioner as to what a waiver of a jury trial meant taking into account petitioner’s background, intelligence, ethnic origin, lack of ability to communicate in an English speaking system and the nature of the charges; and
(c) Counsel failed to file specific issues in his post-verdict motions; inter alia, those as stated above as well as others that arose during the proceedings. This in spite of the law’s requiring him to do so less his client be deemed to have waived them.
10.....
11. Present counsel will present testimony from petitioner, trial counsel, etc.
12. ...
13. The matters alluded to above resulting in petitioner’s conviction and sentence have neither been finally litigated nor waived.

(Record No. D-10)

Thereafter, appointed counsel submitted a supplemental PCHA petition amending paragraph (1), section (c) of Point 9, supra, to complain that the police interpreter “was not a neutral and impartial third party.” (Record No. D-12)

Before the commencement of the PCHA hearing, presided over by the Honorable Edward J. Blake, an official court interpreter (Luisa Ramirez) employed by the Court of Common Pleas of Philadelphia County was sworn in to keep appellant apprised of what was occurring at the proceedings.

The first witness to take the stand was Frank Rivera, an official interpreter (Spanish to English) for the court. He stated that in his Alk years as an interpreter, he was aware of interpreters being present at the earliest stage of the judicial process, e.g., summary proceedings and preliminary hearings, up to and including the time set for sentencing. However, he had “never been asked” to be at an interrogation. (N.T. 2/23-24/81 at 9) He also opined that, based on his experience, if a person had a good knowledge of the Spanish and English languages there was no reason why such a person could not serve as an interpreter. He qualified the statement with the caveat that he “meant outside of Court.” (N.T. 2/23-24/81 at 11) In the court, he felt, the person should have some knowledge of the legal terminology.

The next witness to testify was the 41-year-old appellant, and he did so through Ms. Ramirez. He stated he arrived in . Philadelphia from Puerto Rico in 1967, returned to his homeland in 1973 and then came back here in 1975; yet he was unable to read, write or understand English. As for Spanish, he remarked going “up to part or half of seventh grade” in Puerto Rico. (N.T. 2/23-24/81 at 15) Appellant also indicated that he had never been arrested, either in Puerto Rico or Philadelphia.

Recalling the events on the date of the shooting, appellant remembered being interviewed for about 4 hours at police headquarters by an Officer Ruiz (the interpreter), who was still in uniform, in the presence of a black detective. In the words of the appellant, he felt “physically ill and nervous and very fearful.” (N.T. 2/23-24/81 at 17) On various occasions during the course of the interrogation, appellant revealed that he had difficulty communicating with Officer Ruiz, e.g., both individuals would have to “repeat” questions and answers so that the other could comprehend what was being said.

Prior to trial, appellant told of meeting with counsel for about an hour in his office in the company of appellant’s niece’s husband, who acted as interpreter. They discussed the repayment of the bail money and the signing of a paper pertaining to the waiver of a jury trial. For as appellant was made to understand by counsel, “it was easier or better for him [appellant’s trial counsel] to convince one person as opposed to twelvef.]” (N.T. 2/23-24/81 at 29 & 30) No other aspect of a jury trial was discussed, as recalled by appellant, “in any way other than that” just recited. Id.

Appellant went on to testify, in essence, that despite the thoroughness of Judge Bonavitacola’s colloquy, resulting in the waiver of his right to a trial by jury, the answers he gave were the product of “fear” and “nervousness”. As appellant frames it, “I had no knowledge of what he [Judge Bonavitacola] was explaining because nobody had explained it to me.” (N.T. 2/23-24/81 at 37) And, appellant said he did not “dare tell [the judge] about the jury because [his] lawyer had already told [him] not to take a jury.” (N.T. 2/23-24/81 at 32-33)

Louis Rodriquez, appellant’s niece’s husband and interpreter at the meeting, corroborated appellant’s version of what transpired in Attorney Weinstein’s office. With this testimony, and after the submission of two documents into evidence reflective of appellant’s in-patient hospitalization (on March 22, 1976) and treatment by a physician (from April 20, 1976 to July 15, 1976), prior to and after the date of the homicide (on June 23, 1976), counsel for appellant rested.

The case for the Commonwealth consisted of the presentment of appellant’s prior counsel, Attorney Weinstein.

What Attorney Weinstein testified to was at odds in various respects with appellant’s recollection of what occurred between the two. For example, Attorney Weinstein, although not able to recall the exact number of times he met with appellant, did remember “meetpng] with him on several occasions in [his] office and in the Courtroom.” (N.T. 2/23-24/81 at 55) Appellant could only testify to having two meetings with counsel, one at the bail hearing and the other at counsel’s office prior to trial.

Also, Weinstein’s view of the discussion with appellant indicated a much more detailed conversation in which he advised appellant:

1) the absolute right to a trial by jury;
2) twelve people would be selected at random from society;
3) he could help in the selection process;
4) he could object to the selections made;
5) the jury would have to unanimously decide the case; and
6) based on the possible prejudiceness of the jury because of appellant’s nationality and their belief that the killing was the outgrowth of a street fight, a judge would be more competent to render a decision.

However, counsel stated that the decision to waive a jury was ultimately appellant’s, but it was his recommendation to do so. Counsel did not waver on cross-examination. After the completion of Weinstein’s testimony, the hearing ended. Following this, the PCHA court entered an Order, accompanied by an Opinion, denying appellant’s request for relief. This appeal followed.

The questions presented to this Court, although not in the exact sequence that they appear in appellant’s brief, are:

1. Did the trial Court fail to comply with Rule 1123 of the Rules of criminal procedure?
2. Did the defendant knowingly and intelligently waive his right to a jury trial?
3. Was trial counsel ineffective because he filed “boilerplate” post-verdict motions which resulted in specific trial issues being considered as waived by both the trial Court and the Supreme Court?
4. Is the use of a Philadelphia police officer as an interpreter during a defendant’s interrogation a denial of due process?

As for the Rule 1123 issue, we observe that although it was raised in the amended PCHA petition by counsel in paragraph (5), subsection (c) of Point 9 and in the appellate brief to this Court, it was not pursued at the time of the PCHA hearing. This fact is substantiated by PCHA counsel’s own statement to the effect that “the issue in th[e] case” concerned the use of a police officer as the interpreter at appellant’s interrogation, and as to whether appellant’s “1123 rights were violated ... was another issue” that was never scrutinized at the hearing. (N.T. 2/23-24/81 at 18 & 25) Accordingly, we will not consider the question. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977).

The second issue raised by the appellant assails the validity of his waiver to a trial by jury.

We note, initially, that the jury trial waiver colloquy was conducted with the aid of an official court interpreter. Although appellant concedes that the requirements delineated in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973) for a prima facie knowing and intelligent waiver of a jury trial were met (see N.T. 10/20/76 at 3-9; Appellant’s Brief at 21), he argues that because he “did not speak or write English, was unfamiliar with the criminal justice system and was only answering the questions because his lawyer wanted a non-jury trial[, tjrial counsel effectively interfered with his ... right to have a jury trial and on this basis alone was ineffective.” (Appellant’s Brief at 21-22)

At the PCHA hearing, appellant testified that despite the answers he gave during the colloquy, which indicated his understanding of what was happening and the voluntariness of his actions, he, nonetheless, was feeling nervous, physically sick and fearful, all of “which didn’t permit [him] to understand.” (N.T. 2/23-24/81 at 33) Furthermore, he remarked that because Attorney Weinstein had already told him to waive a jury, he “didn’t dare tell [the judge] about the jury ...(N.T. 2/23-24/81 at 32)

' The Commonwealth countered appellant’s argument with Attorney Weinstein’s testimony that there were various meetings between he and appellant at which all aspects of the case, including the pros and cons of a trial by jury, were discussed. Also, and most importantly, Attorney Weinstein persistently testified that, albeit the advise to go non-jury was his, the decision to do so was ultimately appellant’s. (N.T. 2/23-24/81 at 57 & 59) According to Attorney Wein-stein, appellant told him that “he would rely on [his] recommendation” to waive a jury. (N.T. 2/23-24/81 at 62)

The PCHA court, after hearing all the evidence, found as. a fact that appellant waived his right to a jury trial knowingly and voluntarily, and, concluded as a matter of law that his waiver was valid. (PCHA court Opinion at 3) Such findings of fact, when supported by the record, are entitled to be upheld on appeal. Commonwealth v. May, 485 Pa. 371, 402 A.2d 1008 (1979). This is especially so on questions concerning the credibility of witnesses. See Commonwealth v. Porta, 297 Pa.Super. 298, 443 A.2d 845 (1982), petition for allowance of appeal denied September 1, 1982. Since it is not the function of an appellate court to engage in a de novo evaluation of the testimony elicited at a PCHA hearing, id., we will not disturb the ruling made by the PCHA court here.

Moreover, on the waiver issue, we want to point out that after the appellant disclosed that he did not know anything about jury trials, because this was the first time he had been in court and he was taking pills prescribed for a nervous condition caused by a couple of operations he had undergone, the trial court took painstaking care to insure that appellant “understood” the ramifications of his waiver and his right to proceed to trial by jury if he so wished. See Commonwealth v. Hooks, 483 Pa. 40, 394 A.2d 528 (1978).

Throughout the colloquy appellant repeatedly answered in the affirmative when asked if he understood what was occurring in regard to the right that he was relinquishing and if he was responding truthfully to all of the questions. Appellant will not now be heard to say that his responses were not truthful. To do so would allow an accused to go through the motions at any waiver hearing and, subsequently, collaterally attack the validity of a colloquy giving rise to the waiver as involuntarily, unintelligently and unknowingly entered because of false responses given to the questions asked. As stated previously, the PCHA court’s ruling on the propriety of the waiver issue is to be given deference by this Court when the facts support the ruling, especially on issues of credibility, even if the record could support a contrary holding. See Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981); Commonwealth v. Ford, 491 Pa. 586, 421 A.2d 1040 (1980); see also Commonwealth v. Sweitzer, 261 Pa.Super. 183, 395 A.2d 1376 (1978). We find no reason to reverse the PCHA court’s determination concerning its findings of fact and conclusions of law on the voluntariness of the jury waiver.

The third issue raised by the appellant labels trial counsel ineffective for filing “boiler-plate” post-verdict motions that caused all issues, save for the sufficiency of evidence question, to be held waived for purposes of review by both the trial court and our Supreme Court on appeal.

At first, appellate counsel states that the only way to rectify this misfeasance is to remand to allow his client the opportunity to file post-verdict motions nunc pro tunc. However, in the next breath, he requests that the issues be considered by this Court.

In light of the record created in this case, we are inclined to treat the issues presented in appellant’s amended and original PCHA petition as equivalent to the filing of post-trial motions. See Commonwealth v. Jones, 300 Pa.Super. 338, 446 A.2d 644 (1982). We see no reason to remand. Appellant’s position would seem to endorse such a treatment, for he importunes the Court to handle the claims raised. . Having disposed of appellant’s third prong, we can now turn our attention to the last, and most interesting, of appellant’s complaints, that is, whether the use of a police officer as an interpreter, during interrogation, was a denial of his right to due process. In other words, appellant holds that “due process required that an interpreter who [was] both trained, experienced and impartial have been afforded [to him].” (Appellant’s Brief at 10)

Ergo, trial counsel’s failure to preserve the aforesaid issue for trial and/or appellate review, urges the appellant, warrants counsel being held less than effective. Before we can address the merits of appellant’s averment, first, we need to determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Jennings, 285 Pa.Super. 295, 427 A.2d 231 (1981). Then, if the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

We start by observing that, in regard to appellant’s due process argument, it is an unassailable tenet of our constitutional system that the Government’s power to punish citizens or aliens charged with violating the law may be exercised only in accordance with due process as prescribed by the Bill of Rights. See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 119, 18 L.Ed. 281 (1866); Rosado v. Civiletti, 621 F.2d 1179, 1194 (2nd Cir.1980). Whether the constitutional guaranty of due process further proscribes the appointment of a police officer as an interpreter during the interrogation stage of the criminal process is a question never fully resolved in this jurisdiction. The most that has been stated is that the decision to use an interpreter (in a trial setting) rests in the sound discretion of the judge presiding over the case. Commonwealth v. Pana, 469 Pa. 43, 364 A.2d 895 (1976).

Nonetheless, it cannot be overlooked that the Legislature has taken specific steps to deal with this exact topic when it comes to the deaf. In 42 Pa.C.S.A. § 8701 the Legislature has provided:

§ 8701. Interpreters for the deaf
(a) Interrogation.—Upon the arrest of any deaf person, and prior to interrogation, the arresting officer shall make available to such person an interpreter who shall be present with such person throughout the interrogation.
(b) Criminal proceedings.—In any criminal proceeding in which a defendant is deaf the court shall appoint an interpreter to assist the defendant throughout the proceeding.
(c) Oath.—The interpreter shall swear or affirm that he will make a true interpretation to the deaf person and that he will repeat the statements of the deaf person to the best of his ability.
(d) Definitions.—As used in this section the following words shall have the meanings given to them in this subsection:
“Deaf.” Persons who are deaf or whose hearing is so impaired that they are unable to understand or communicate the spoken English language.
“Interpreter.” A person qualified and trained to translate for or communicate with deaf persons. Any person certified by the National or Local Registry of Interpreters for the Deaf or similar registry shall be considered qualified for the purposes of this section.

The requirement of an interpreter for the deaf has been extended to any proceeding before a Commonwealth agency. See 2 Pa.C.S.A. § 505.1 (Supp. 1964-1982). Also, the appointment or employment of an interpreter has been provided for in general or special court-martials or other military court inquiries. 51 Pa.C.S.A. § 5507. However, the Legislature has not seen fit to extend the use of an interpreter to criminal proceedings, specifically interrogations, where a suspect has difficulty speaking or understanding the English language. In light of the law covering the deaf, it is not presumptuous to say that the General Assembly has specifically eschewed the enactment of similar legislation in regard to non-English-speaking persons subject to interrogation. See 1 Pa.C.S.A. § 1921(c)(5) (Supp. 1964-1982).

The most that the Legislature has done, through the Judiciary Act Repealer Act (Act 1978, April 28, P.L. 202, No. 53, eff. June 27, 1978), is to consolidate the matters concerning the appointment of interpreters by the courts of common pleas (previously at 17 P.S. § 1875 and 28 P.S. § 441) under 42 Pa.C.S.A. § 2301 (“Appointment of personnel”).

Having established the absence, at least in this Commonwealth, of either legislative or case law supportive of appellant’s position, we find it instructive to examine the manner in which other jurisdictions (both state and federal) have dealt with the situation.

As is collected at Annotation: Disqualification, for Bias, of One Offered as Interpreter of Testimony, 6 A.L.R.4th 158, the author therein remarks:

Numerous cases have contained language in one way or another lending support to the generality that it is at least better practice to appoint a disinterested person as interpreter____ However, a substantial number of cases have recognized that it is at least not necessarily reversible error to appoint a relative or friend of a witness or party to interpret, especially where no other competent interpreter is available.
Cases throughout the annotation, frequently applying the broadly recognized principle that the appointment of an interpreter rests in the wise discretion of the trial court whose judgment may not be overturned unless abused, or finding an absence of prejudice in the circumstances, have held that no reversible error was committed by trial courts who appointed as interpreters of non-English-speaking witnesses (1) a friend or relative of a witness or victim in a criminal case, ...; (2) ...; and (3) a law enforcement officer or other governmental official to interpret for a prosecution witness in a criminal case,____

(Emphasis added)

Id. at § 2[a]. Accord Wharton’s Criminal Evidence § 404 (13th Ed.1972).

We find that on the subject of impartial and unbiased interpreters the position consistently adhered to by most courts, although stated in different terms, is reflected in the statement made by the Tenth Circuit Court of Appeals:

While in the nature of things, a disinterested interpreter is essential to an impartial interpretation of a witness’ testimony, at the same time the trial court is necessarily accorded a wide discretion in determining the fitness of the person called, and the exercise of that discretion will not be disturbed on review in the absence of some evidence from which prejudice can be inferred. See People v. Valencia, 27 Cal.App. 407, 150 P. 68; People v. Rardin, 255 Ill. 9, 99 N.E. 59; DeBaca v. Pueblo of Santo Domingo, 10 N.M. 38, 60 P. 73; See annotation 172 A.L.R. 923, 941, Subsection (c).

Lujan v. United States, 209 F.2d 190, 192 (10th Cir.1953). Accord United States v. Salsedo, 607 F.2d 318, 320 (9th Cir.1979); United States v. Carrion, 488 F.2d 12, 14-15 (1st Cir.1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974); Chee v. United States, 449 F.2d 747 (9th Cir.1971), disapproved on other grounds, Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); LaCount v. State, 237 Ga. 181, 227 S.E.2d 31, 33 (1976), cert. denied, 429 U.S. 1046, 97 S.Ct. 753, 50 L.Ed.2d 761 (1977); Commonwealth v. Pana, supra; People v. Torres, 18 Ill.App.3d 921, 310 N.E.2d 780, 784 (1974); State v. Coria, 39 Or.App. 507, 592 P.2d 1057, 1059 (1979); see also Wharton’s Criminal Evidence § 404 (13th Ed.1972) (citing cases); 6 A.L.R.4th 158.

Additionally, as is germane to the case at bar, it has been stated unequivocally that “rulings on the appointment and qualifications of interpreters do not reach constitutional proportions. See Fairbanks v. Cowan, 6 Cir., 551 F.2d 97, 99. Whatever problems there may be with the testimony of [an interpreter] go to the sufficiency of the evidence.” (Emphasis added) Soap v. Carter, 632 F.2d 872, 874-75 (10th Cir.1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981).

Therefore, because of the preceding and the safeguards already afforded an accused by our judicial system in the form of pre-trial, post-trial and appellate review, we refuse appellant’s invitation to adopt a per se rule that there is an inherent bias, and a violation of due process rights, whenever a police officer is called upon to serve as a defendant’s interpreter at an interrogation. Rather, we are of the mind that a contention that an interpreter was biased, prejudiced or unfair toward the affected non-English-speaking defendant must be borne out by the record. See Wainwright v. LaSalle, 414 F.2d 1235 (5th Cir. 1969); Lujan v. United States, supra; LaCount v. State, supra; People v. Torres, supra; People v. Murphy, 276 Ill. 304, 114 N.E. 609 (1916); State v. Banusik, 84 N.J.L. 640, 64 A. 994 (1906); see also Chee v. United States, supra; State v. Coria, supra; but see Gonzales v. State, 372 A.2d 191 (Del.Supr.1977); People v. Gutierrez, 137 Cal.App.3d 542, 187 Cal.Rptr. 130 (1982) (Staniforth, J., Concurring Opinion). Thus, having ruled that a non-English-speaking defendant is not presumptively prejudiced by the assignment of a police officer to act as his interpreter, appellant has failed to satisfy the first prong (arguably meritorious claim) of the ineffectiveness test. A fortiori, counsel will not be deemed inept so as to warrant appellant the relief of a new trial.

Even assuming, arguendo, that it was error for the suppression court to hold that no impropriety occurred by the assignment of a police officer to act as appellant’s interpreter at the interrogation, we conclude that it was harmless at best. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Felix-Jerez, 667 F.2d 1297 (9th Cir.1982); United States v. Cheung Kin Ping, 555 F.2d 1069 (2nd Cir.1977); Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

At the bench trial, the Commonwealth presented the eyewitness accounting of the victim’s two step-children, Angel and Richard Colon.

Angel, age 13, recounted how on the day in question he was playing in the house, with his brothers and friends, when his step-father came to the door. Someone let him in and when he asked for his little pistol lighter—a cigarette lighter in the shape of a pistol—Angel retrieved it from upstairs. After receiving the lighter, Santiago told him, “don’t come after me. There’s going to be some shooting.” (Vol. I, N.T. 10/20/76 at 26) Nevertheless, Angel followed his step-father around the corner, a distance of about one-half block, to Norris and Marshall Streets. Once there, Angel stopped and stood by the firemen’s station. He was able to see the appellant, with a gun in his hand, running out of a back door to a house on Norris Street. Angel then observed, the appellant as he (Carrillo) “stood in the middle of the street and fired the first shot.” (Vol. I, N.T. 10/20/76 at 30) Santiago was observed falling to the sidewalk. Appellant reacted, as recalled by Angel, by running up to Santiago and, at a distance of about 8 feet, firing two more shots at the victim as he laid on the sidewalk. (Vol. I, N..T. 10/20/76 at 31-32) After the shooting, Angel went to get the victim’s brother-and, thereafter, waited for the arrival of the police to tell them what had happened.

The second child, Richard, age 12, gave testimony consistent with that of his brother, Angel.

Officer Koch, the individual who transported Santiago to the hospital where he (Santiago) was pronounced dead on arrival, recalled seeing nothing in the victim’s hand as the officer first observed him lying with head and shoulders on the sidewalk. The remaining portion of the body was lying in the street. It was not until the officer searched the body at the hospital that he found a lighter-type gun in the victim’s right, front pants pocket. In fact, the Commonwealth’s ballistics expert, Officer Carlin, identified the object as a cigarette lighter that “d[id] not even work as a cigarette lighter is supposed to work.” (Vol. I, N.T. 10/20/76 at 94)

Halbert Fillinger, forensic pathologist and assistant medical examiner for the City and County of Philadelphia, testified that the victim sustained two bullet wounds, one above the left collar bone and the other behind the left ear. He also gave testimony that the victim’s ethyl alcohol was .30.

In his own defense, appellant took the stand and recounted how on June 23, 1976 he and his wife traveled a distance of some 2 blocks to visit his sister-in-law, who was sick. He had been sitting in the yard in the company of family members for about half an hour when, at approximately 6:45 p.m., Santiago arrived and became verbally abusive, as he paced back and forth in the middle of the street. Initially, the remarks were aimed at the entire family, but then they were directed solely at the appellant. This alleged-barrage of epithets continued for an hour to an hour-and-a-half, yet appellant did absolutely nothing. He “just stayed there with [his] mouth open because [he] had never had any troubles with [Santiago] before.” (Yol. II, N.T. 10/21/76 at 109) Appellant said Santiago seemed drunk, and, thus, his remarks did not make him angry; Carrillo “completely ignored him.” (Vol. II, N.T. 10/20/76 at 110) Santiago left after about IV2 hours, but he returned, this time with beer and cigarettes, and took up where he left off from the middle of the street. This second session lasted for about an hour without appellant getting angry, despite the victim supposedly calling him “faggot” and “cuckold” (in Spanish the word is “cabrón” and means somebody else’s wife is running with another man, Vol. II, N.T. 10/21/76 at 67 & 112).

Thereafter, appellant says Santiago left but returned a third time. When he came back, appellant’s version depicts the victim as having his hand hidden as he approached the accused. As he stood approximately 15 feet from the appellant, he came down off of the sidewalk and fell in the middle of the street, right in front of the accused. At this point, as told by the appellant, the victim lifted up his hand and aimed a gun at him. This caused everyone, except for the appellant, to run into the sister-in-law’s house. Appellant took cover behind a truck parked in the street, “[a]nd that’s when [he] shot to defend [him]self, because it was with the fear that [he] had that [he] had to do this.” (Vol. II, N.T. 10/21/76 at 100) Appellant admitted to firing his weapon twice as the victim “was about 20 feet directly away from [him].” Id. The appellant testified that as he was getting behind the truck the victim “started to go backwards.” (Vol. II, N.T. 10/21/76 at 121) Next, the appellant pointed out that as he fired the first shot, the victim “was going backwards.” Id. Following the second shot, appellant threw the weapon underneath the truck, ran back into the house and helped his wife, who had asked to be taken upstairs. Appellant waited there until the police came.

Moreover, appellant did not deny making a statement to the authorities, and said it consisted of exactly what he had just testified to having occurred. (Vol. II, N.T. 10/21/76 at 101)

On cross-examination, appellant testified that he purchased the .38 revolver 5 months before the incident from a vendor on the street and that he was carrying it in his sock on the day in question “only for [his] protection.” (Vol. II, N.T. 10/21/76 at 105) This was, purportedly, only the second time that appellant had carried the weapon on his person. The remaining portion of appellant’s defense consisted of testimony of relatives present at the scene during the time of the shooting, which tended to support appellant’s version.

The trier of fact did not believe appellant’s accounting and found him guilty as charged. On appeal, our Supreme Court likewise found sufficient evidence to support the judgment of sentence. Commonwealth v. Carrillo, supra.

Based on the aforesaid, we cannot say that the admission of the Carrillo statement was so prejudicial that the only recourse is to grant appellant a new trial, minus the presentment of the statement into evidence by the prosecution. We find that, even if we were to dismiss the content of the statement, the evidence (eyewitness accounts and the appellant’s own damaging testimony) is otherwise supportive of the verdict. Stated differently, this Court determines that there is no “reasonable possibility” that the error, conceding for the sake of argument that one occurred, could have contributed to the verdict. Commonwealth v. Story, supra.

Finding the claims of the appellant to be meritless, we affirm the Order of the PCHA court.

WIEAND, J., files a concurring statement which is joined by ROWLEY, J.

WIEAND, Judge,

concurring:

I join all but the final portion of the majority’s opinion. I agree that appellant’s constitutional rights were not violated because his inculpatory statement, given in Spanish, was translated into English by a police officer. I agree also that a contrary argument would have lacked merit and that counsel, therefore, was not ineffective for failing to preserve the issue in post trial motions. Because of this conclusion, I find it unnecessary to consider whether the Commonwealth’s use of the statement at trial, if error, would have been harmless.

      . These interpreters, while paid by the City of Philadelphia, are employees of the court. Their principal function is to serve the Court of Common Pleas and the Municipal Court of Philadelphia as interpreters.

      . Even if we held there was no waiver, our review of the trial transcript reveals the judge advised appellant of: 1) his right to file post-trial motions; 2) the time frame within which they had to be filed; 3) the consequences of failing to file the motions; and 4) the right to the assistance of counsel, without cost to him, in the preparation of the motions. (N.T. 10/22/76 at 156-157) Thus, based on the aforesaid, the requirements of Pa.R.Crim.P, 1123 were satisfied.

      . Section 2301 provides:
      § 2301. Appointment of Personnel
      (a) General rule.—Subject to any inconsistent general rules or statutory provisions each:
      (1) Judge and district justice may appoint and fix the duties of necessary personal staff.
      (2) Court may appoint and fix the compensation and duties of necessary administrative staff and fix the compensation of personal staff.

        (3) Other agency or unit of the unified judicial system may appoint and fix the compensation and duties of necessary central staff and personal staff.
      (b) Oath of office.—Each member of a judicial board or commission and each other person who is appointed to an office shall, before entering upon the duties of his office, take and subscribe the oath or affirmation specified in section 3151 (relating to oath of office).
      (c) County staff unaffected.—The provisions of subsection (a) are intended solely to codify and consolidate former statutory provisions on the same subject and nothing in such subsection shall be construed to limit, modify or deny the existing powers or prerogatives of county staff or other officers, other than judges, elected by the electorate of a county, to appoint and to fix the reasonable compensation of such classes of personnel as such county officers have heretofore been authorized to do by law.
      42 Pa.C.S.A. § 2301.

      . To embrace appellant’s position would, of necessity, require that all police forces throughout the Commonwealth (regardless of size) have on their staff or on call an official, licensed interpreter for all non-English-speaking persons arrested and subject to interrogation. Such a requirement would be costly and, given the facts instantly, where an individual is arrested in the earlier morning hours, the police would have to await the arrival of the interpreter before interrogation could begin. This, in itself, might border on a violation of the 6-hour rule enunciated in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) regarding the suppressibility of inculpatory statements. But see Commonwealth v. Keasley, 501 Pa. 461, 462 A.2d 216 (1983) (arraignment of defendant twelve hours after arrest because arraignment judge not available not a violation of Davenport).

      We wish to note that we have only scratched the surface of the problem if such a requirement was implemented by judicial fiat. We believe it better to leave this matter to the Legislature to deal with, as they have done in the case of deaf persons. See 42 Pa.C.S.A. § 8701.

      . The requirement of whether record proof had been established to show that the appellant was prejudiced by the assignment has not been overlooked by this Court. We have reviewed the suppression court's findings against the standard of review set forth in Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976), and see no reason to change its ruling.
      All parties concede, as they must, that the sole issue at the hearing was whether the officer, assigned to act as interpreter, was capable of giving the appellant his Miranda warnings so that he could knowingly, voluntarily and intelligently exercise his right to waive them and, thus, render the inculpatory statement constitutionally valid. (Vol. Ill, RR. 3.6 & 3.25) In other words, because the officer testified that appellant was warned of all of his rights and the appellant testified to the contrary, it was a question of credibility—a matter which is peculiarly within the bailiwick of the trier of fact hearing the testimony.
      The manner in which the 1:00 a.m. interrogation (which would have had an impact upon the availability of an official, licensed interpreter) was conducted by Detectives Johnson and Zucker consisted of, first, Johnson reading the Miranda warnings in English, one at a time, to the officer-interpreter. The officer-interpreter would, in turn, translate the warning into Spanish for the appellant. The appellant’s Spanish response would, in like fashion, be translated into English by the officer-interpreter and told to Detective Johnson. Detective Johnson, and later on in the interrogation Detective Zucker, would type the answers as well as the questions given. Farther into the interrogation, appellant made a statement recounting how Santiago Garcia, over a span of some 5 hours, had used epithets and other abusive language directed at him in front of his family and relatives. In essence, the statement was an admission by the appellant that he had shot Santiago "two or three times” at a distance of about 20 feet and as the decedent was moving "backwards”. At trial, appellant argued that he was acting in self defense when he shot Santiago.
      We are not unaware of the difficulty that the suppression court and counsel for the Commonwealth were confronted with in seeking to have the officer-interpreter "read” in English "exactly” what was typed by the detectives regarding the questions asked and answers given at the interrogation. For example, there were mistakes in the translation of the officer-interpreter, as noted by the appellant’s counsel, the official court interpreter present to aid the appellant and the court. However, "[ojccasional errors in translation do not demonstrate that an interpreter is not qualified. [United States v. Guerra, 334 F.2d 138 (2nd Cir.1964), cert. denied, 379 U.S. 936, 85 S.Ct. 337, 13 L.Ed.2d 346 (1964).] Necessarily the trial judge has a measure of discretion in assessing qualifications to act as an interpreter. [Fairbanks v. Cowan,
        551 F.2d 97 (6th Cir.1977).]” Louisell, David W. and Mueller, Christopher B., 3 Federal Evidence § 272 at 65. This is especially so since the appellant was entitled to cross-examine the officer-interpreter so as to test the correctness of the translation. V Wigmore on Evidence, § 1393 at 146 (Chadbourn rev. 1974) (the "interpreter may be required to repeat in the foreign language the words used by him ....”). We find that appellant’s interests were adequately protected and it was for the suppression court to decide if the officer-interpreter was unqualified and thus tainted appellant’s statement/confession.
      Based on the testimony of the witnesses (which included the appellant) at the hearing, we are not persuaded to alter the suppression court’s determination that the appellant’s inculpatory remarks passed constitutional muster.


author: CAVANAUGH, Judge:

text:
    465 A.2d 1267
    COMMONWEALTH of Pennsylvania v. Edward N. WATTS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1983.
    Filed Sept. 23, 1983.
    Petition for Allowance of Appeal Denied Dec. 19, 1983.

      Douglas M. Johnson, Public Defender, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Nor-ristown, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   CAVANAUGH, Judge:

Appellant Edward N. Watts was found guilty following a non-jury trial of possession of an instrument of crime, possession of a prohibited offensive weapon, and possession of a weapon by an inmate. Post-verdict motions were denied and appellant was sentenced to three concurrent terms of imprisonment of one to five years. He has raised four claims on appeal. The lower court’s opinion contains a thorough discussion of each of the claims raised by appellant and, with one exception, we feel that it is unnecessary to discuss the issues further.

We do wish to make one observation with regard to appellant’s claim that the evidence was not sufficient to establish that he had “possession” of the homemade knife found in his prison cell under sections 907 and 908 of The Crimes Code because the evidence “showed that there was ample opportunity for someone to ‘plant’ the weapon in his locker.” (Appellant’s brief at 8-9). A similar claim was raised in the recent case of Commonwealth v. Burkley, 297 Pa.Super. 400, 443 A.2d 1182 (1982). In that case, prison officials had discovered a sharpened screwdriver hidden within the defendant’s mattress during a “shakedown search” of his prison cell. We reversed his conviction for possession of an offensive weapon after finding that the Commonwealth had failed to establish actual or constructive possession. We stated, “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.” 297 Pa.Super. at 404, 443 A.2d at 1184. Similarly, the evidence in the instant case established that guards and other inmates had access to appellant’s prison cell. However, viewing the evidence in light most favorable to the Commonwealth as verdict winner, Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981), the evidence in the instant case also established that the weapon involved was found in a tightly locked cabinet, accessible only by using a key which was in the exclusive possession of appellant. Thus, this case is easily distinguished from Burkley, supra. We feel that the evidence in the instant case is sufficient to establish beyond a reasonable doubt that appellant was in possession of the weapon.

We also note that appellant was improperly convicted and sentenced for two inchoate crimes, possession of an instrument of crime (18 Pa.C.S.A. § 907(a)) and possession of a prohibited offensive weapon (18 Pa.C.S.A. § 908(a)). Conviction and imposition of sentence on both of these charges is clearly prohibited by 18 Pa.C.S.A. § 906. See Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982). This issue has not been raised by appellant but, because it involves the legality of the sentence imposed, we may raise it sua sponte. Commonwealth v. Joseph Martin, 316 Pa.Super. 190, 462 A.2d 859 (1983); Commonwealth v. Thaddeus Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983); Commonwealth v. Fortune, 305 Pa.Super. 441, 451 A.2d 729 (1982). In light of the error committed by the trial court, we have the option either to remand for resentencing or to amend the sentence directly. Commonwealth v. Thaddeus Ford, supra; Commonwealth v. Ronald Fulton, 315 Pa.Super. 420, 462 A.2d 265 (1983); Commonwealth v. Von Aczel, 295 Pa.Super. 242, 441 A.2d 750 (1981). Since the trial court imposed identical sentences on the two charges, both of which are misdemeanors of the first degree, and directed that the sentences be served concurrently, it is clear that a remand for resentencing would not result in any change in the sentence. Therefore, we will vacate the judgment of sentence on the charge of possession of a prohibited offensive weapon, and affirm the judgment of sentence on the charge of possession of an instrument of crime.

Judgment of sentence for possession of a prohibited offensive weapon is vacated. Judgments of sentence for possession of an instrument of crime and possession of a weapon by an inmate are affirmed.


author: ROWLEY, Judge:

text:
    465 A.2d 1269
    Fred J. BROGLIE, Appellant, v. UNION TOWNSHIP, Jack Gabig, individually and in his capacity as Supervisor of Union Township, Steve Parish, Jr., individually and in his capacity as Supervisor of Union Township, and the Daily Herald.
    Superior Court of Pennsylvania.
    Argued April 27, 1983.
    Filed Sept. 23, 1983.

      George Retos, Jr., Washington, submitted a brief on behalf of appellant.
    Herman C. Kimpel, Pittsburgh, for appellees.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   ROWLEY, Judge:

This is an appeal from a judgment of non pros entered against appellant, Fred J. Broglie, in favor of appellees, Union Township, Jack Gabig and Steve Parish, Jr. We affirm.

The facts are as follows. On August 12, 1980, appellant filed a complaint in trespass alleging that he had been defamed by Union Township Supervisors, Jack Gabig and Steve Parish, Jr., while he was a candidate for the office of Supervisor of Union Township. In response to appellant’s complaint, appellees, Union Township, Jack Gabig and Steve Parish, Jr., filed preliminary objections in the nature of a demurrer, including therein a motion for a more specific pleading. On November 12, 1980, the trial court sustained appellees’ preliminary objections and entered an order granting appellant twenty days in which to file an amended complaint. Subsequently, a thirty-day extension of that twenty-day period was agreed to by counsel for the parties. On February 6, 1981, counsel for appellees wrote a letter to appellant’s counsel reminding him of the trial court’s order of November 12, 1980, and advising him that a judgment would be taken if the amended complaint was not filed within ten days from the date of the letter. On March 26, 1981, no amended complaint having been filed, counsel for appellees moved for a judgment of non pros. The specific ground alleged by appellees in support of their motion for a judgment of non pros was that appellant had failed to comply with the November 12, 1980, order of court as modified by the parties.

Argument on appellees’ motion was scheduled for May 20, 1981. In the interim, on May 5, 1981, appellant filed his amended complaint, along with a reply to appellees’ motion for a judgment of non pros. In his reply, appellant urged dismissal of the motion for non pros on the ground that the amended complaint had been filed of record. On May 20, 1981, the trial court sitting en banc, heard arguments on the motion for judgment of non pros, and, in an opinion and order filed July 20, 1981, granted the same. This appeal followed.

On appeal, appellant argues that the trial court’s granting of the judgment was in error because two of the three requirements antecedent to such a ruling, as set forth in James Brothers Lumber Co. v. Union Banking and Trust Co., 432 Pa. 129, 247 A.2d 587 (1968) and its progeny, were not met. After consideration we find appellant’s argument to be without merit.

A judgment of non pros is available under Pa.R.C.P. 1037(c) upon default or admission. Those instances in which a judgment of non pros is entered are usually confined to the pretrial stage, and are typically addressed to the failure of the plaintiff to proceed with the case or to obey an order of court. 1 Goodrich-Amram 2d § 231 (1976 edition). For example, in a divorce action, Pa.R.C.P. 1920.-21(b) specifically allows for a judgment of non pros should the plaintiff fail to file a bill of particulars. Under Pa.R. C.P. 4019(c)(3), a judgment of non pros may be entered where a plaintiff has failed to comply with the requirements of Rule 4019(a). Likewise, it has been postulated that under Pa.R.C.P. 212 a plaintiff who fails to appear at a pretrial conference in contravention of a court order can be subject to a judgment of non pros. 1 Goodrich-Amram 2d § 212 (1976 edition).

In the case at hand, appellees filed their motion for a judgment of non pros against appellant pursuant to subsection (c) of Pa.R.C.P. 1037. Subsection (c) provides:

[i]n all cases, the court, on motion of a party, may enter an appropriate judgment against a party upon default or admission.

Appellant argues that before the trial court could grant a judgment of non pros under subsection (c), three conditions had to be established. Those conditions, as outlined in James Brothers Lumber Co., supra, are as follows:

A Court may properly enter a judgment of non pros when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses, (citations omitted) Id., 432 Pa. at 132, 247 A.2d at 589.

In line with the above, appellant specifically contends (1) that no showing of prejudice was made out, and (2) that the delay involved was not such as to constitute a want of “due diligence.”

If this case presented a situation where appellees had moved for a judgment of non pros on the theory that appellant had failed to prosecute the action with reasonable promptitude, we would concede the applicability of the criteria found in James Brothers Lumber Co., supra. However, as noted above, judgments of non pros may be granted in a variety of situations described in the Rules of Civil Procedure, and the criteria found in James Brothers Lumber Co., supra, is not applicable in every situation where a judgment of non pros is requested. Nor is it applicable in every case where a judgment of non pros is sought under subsection (c) of Pa.R.C.P. 1037. Rather the criteria or antecedent conditions outlined in James Brothers Lumber Co., supra are explicitly tailored to those situations where the defendant seeks judgment of non pros on the ground that the plaintiff has, under the circumstances, delayed too long in bringing the suit to fruition.

In the instant case, appellees did not seek a judgment of non pros on the ground that appellant had been dilatory in proceeding, with the action but on the ground that appellant had failed to timely obey an order of court. The distinction is significant. Appellant was granted twenty days, and only twenty days, to file an amended complaint. The parties by agreement extended that time for filing by an additional thirty days. In such a case, “due diligence” becomes a more foreshortened concept than that found in James Brothers Lumber Co., supra, and is defined by reference to the calendar rather than by reference to the circumstances of the case. Likewise; prejudice never becomes a consideration since the trial court is empowered to enter a judgment of non pros without a showing of prejudice where a violation of an order of court is involved. Jones v. Trexler, 275 Pa.Super. 524, 419 A.2d 24 (1980).' This is particularly true, where, as in this case, counsel has made no attempt to explain the failure to comply with the court’s order. Id.

Judgment affirmed.

      . In support of his contention, appellant attached to his complaint, as exhibits, copies of two newspaper articles which appeared in The Daily Herald, a newspaper of general circulation in Washington County. The Daily Herald was also a named defendant in the action.

      . We note that the trial court was not precluded from passing on the merits of the motion for non pros, even though the amended complaint had been filed as of the date of the hearing.

      . Pa.R.C.P. 1037 is incorporated into trespass actions by Pa.R.C.P. 1041 where not inconsistent with Pa.R.C.P. 1047.

      . "Rule 1037(c), though brief in text, is wide in its application. It gives a blanket authorization to the court to enter “appropriate” judgments against any party upon "default” or "admission”. The power of the prothonotary under Rules 1037(a) and (b) is limited, and can only be exercised, in ministerial fashion, where no justiciable issues are presented. The power under Rule 1037(c) extends through the whole gamut of legal power.” (footnotes omitted) 2 Goodrich-Amram § 1037(c): 1, p. 485 (1976 edition).

      . Also see Nath v. St. Clair Memorial Hospital, 251 Pa.Super. 361, 380 A.2d 820 (1977); Richards v. Swift, 241 Pa.Super. 359, 361 A.2d 688 (1976); Holliday v. Foster, 221 Pa.Super. 388, 292 A.2d 438 (1972).