author: OLSZEWSKI, Judge:

text:
    564 A.2d 216
    COMMONWEALTH of Pennsylvania v. Joseph McLEAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 25, 1989.
    Filed Aug. 31, 1989.

      John B. Elbert, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before McEWEN, OLSZEWSKI and MELINSON, JJ.
   OLSZEWSKI, Judge:

Following a conviction by a trial jury for rape and false imprisonment and concurrent sentences of four to ten years and six months, to one year incarceration respectively, appellant now asks us to vacate his sentence and order a new trial. We take up the following issues: (1) whether the trial court erred when it (a) precluded questions concerning the relationship between appellant and victim, when it (b) charged the jury on the requisites for common-law marriage, and when it (c) opined as to the sufficiency of some of the evidence; (2) whether the trial court erred in allowing alleged hearsay in the form of a police radio call; (3) whether the prosecutor made prejudicial statements in his closing; and (4) whether there was ineffective assistance of prior counsel for failing to object to a supposedly improper statement during the trial court’s jury charge. Because we find merit insufficient to honor appellant’s request, we affirm the trial court’s judgment of sentence.

Trial counsel was able to make contemporaneous objections concerning the alleged trial court error asserted here. Appellant also included the issues raised here in his post-verdict motions and his supplemental post-verdict motions. Therefore, appellant has successfully preserved these issues on appeal.

On an early morning in November 1987, appellant used scissors to threaten complainant Alicia Vaughn (“Vaughn”) to have sexual intercourse with him in his apartment in Philadelphia. After appellant penetrated Vaughn and climaxed, he drove her back to her sister Chiquita Vaughn’s (“Chiquita”) house where she had been living. Earlier, around midnight, appellant had confronted Vaughn on the street outside her sister’s home and after a brief exchange, grabbed her, pulled her, hit her on the face, took her car keys, got her car, threw her into the car while she resisted, and drove to his apartment. Once there, appellant alternately pulled and dragged Vaughn into the row home and up the stairs to his bedroom.

At 1:00 a.m., Chiquita contacted the police to report her sister missing. Officer Jacobs was dispatched to inquire and advised Chiquita as to the proper procedure. An hour or so earlier, Officer Jacobs had been summoned to an area near Chiquita’s house to respond to a radio call that a woman was screaming.

After appellant dropped her off at Chiquita’s house, Vaughn contacted the police and reported the incident. Officer Jacobs again responded and took down Vaughn’s complaint. The police, pursuant to a warrant, on entering appellant’s apartment, found appellant threatening to kill himself. For six and one-half hours, appellant held off the police until they used force to overcome him.

For five years Alicia Vaughn and appellant had an intimate relationship which produced two children. During that time, Alicia Vaughn for months at a time lived either with appellant at his apartment or with Chiquita. Two months before the incident, Vaughn had ended the relationship and “moved out” of appellant’s apartment back to her sister’s house. (N.T. 3/3/88, 96).

During trial, appellant’s counsel asked certain questions in an effort to bring out the nature of the relationship between appellant and Vaughn. His purpose was to show that a common-law marriage existed between them. Such a marriage would preclude application of the rape statute which excludes spouses from its purview. 18 Pa.C.S.A. § 3121 (see discussion below). On cross-examination of Vaughn, he asked:

[APPELLANT’S COUNSEL] Now, when you said you were close to his family, did they treat you as if you were married to him?
THE COURT: I don’t know what that means____ I don’t know what you’re trying to do here. I don’t understand that, “Did they treat you — ____
[APPELLANT’S COUNSEL]: This goes to the elements of the crime.
THE COURT: Elements of what crime? Proceed, please. This is way off target.

(N.T. 3/3/88, 136-137).

On cross-examination of Chiquita, he asked:

[APPELLANT’S COUNSEL]: How long have you known him?
A: Personally, it really was just the last few months. I know of him. I knew that [he] was my sister’s boyfriend, but we wasn’t really close.
Q: Were you [sic] he and your sister living together what they call common-law?
A: Was him and my sister living together?
Q: Yes.
[COMMONWEALTH]: I’m going to object to that question.
THE COURT: I’ll sustain the objection.
[APPELLANT’S COUNSEL]: Were they living together as husband and wife?
THE COURT: She’s already testified, and she knew them as a boyfriend/girlfriend.

(N.T. 3/3/88, 196-197).

On cross-examination of Phinezeze Jones (“Jones”), appellant’s landlord, he asked:

[APPELLANT’S COUNSEL]: Do they live in that room as man and wife?
A: Yes.
[COMMONWEALTH]: Objection.
THE COURT: Sustained. That’s stricken.
[APPELLANT’S COUNSEL]: It’s an element of the crime, sir.
THE COURT: I said sustained.
[APPELLANT’S COUNSEL]: Yes, sir.

(N.T. 3/4/88, 24).

Finally, in this same area of inquiry, during cross-examination of Vaughn, he asked whether she had received payments to support their children. He asked a similar question during cross-examination of Chiquita. The trial judge prevented such questioning because it was irrelevant. (N.T. 3/3/88, 169-170, 201-202).

The trial court in its charge defined common-law marriage for the jury as follows:

All right, there has been some argument to you on the question of whether or not the defendant was the spouse of the complainant, and there have been allegations to you that there was a common-law relationship between them that constitutes under the law common-law marriage.
Well, let’s look at what the law says about what common-law marriage is. Common-law is effected by agreement of the parties without the benefit of formality of a license or of any ceremony, plus cohabitation and reputation that they live as such and present themselves to the world, not just to a group or a few of us, but to the world as husband and wife, that they transact business in that name and for that purpose.
The basic element of common-law is the present agreement to marry. The law says there must be a present verbalization of it: “I take you,” for instance, “as my wife. I take you as my husband.”
It must be verba de praesenti, says the law, and then there must be cohabitation and by reputation. Reputation alone or cohabitation alone cannot constitute a marriage and is not common-law marriage.
The mere fact that the parties alone, or by a few people are put out as man and wife is insufficient evidence to establish a marriage. There must be proof of present agreement between the two parties at the time they engaged in the marital state, reputation and cohabitation, which involves the. entire world, the entire community, not just a few people. That is the definition of a common-law marriage.

(N.T. 3/4/88, 126-127).

A little later, the court made the following statement to the jury concerning the sufficiency of the evidence showing a common-law marriage: “It is the opinion of this court, which you are not bound by, that such evidence does not exist in this case.”

Appellant cites the following in charging misconduct by the prosecutor for allegedly bringing in information not in evidence:

Prior aspects of the relationship: Ladies and gentlemen, when I put the complainant on the witness stand and asked her questions, I could have asked her questions about what happened in the past. I could have sought to establish that she had every reason to fear the defendant, that he had hit her in the past, that he had busted her lip in the past, that he gave her a black eye in the past.
You don’t think I knew about that beforehand? I didn’t, though, and do you know why? Because I didn’t think it was fair.
What I thought was fair is for this jury to concentrate on what happened on November 17, 1987, in the early morning hours and in the early morning hours alone.
So, I said, “Alicia, directing your attention to that date, other than the fact that you obviously know the defendant from before, what happened?” So, I didn’t ask those questions, but counsel did. He wants to know. It happens every time.
Let’s bring in, drag in the whole prior relationship. Guess what? The only problem with that is that you’re stuck with the answers, and the answers are, “Yeah, I broke up with him. I had one too many busted lips and one too many black eyes, and I was too embarrassed to go out and report these. I don’t want to go out with my face all discolored and cut.”
I didn't ask about that, but he did, and that was his cross-examination, and you heard the answers. The answers, that’s the evidence. That’s the testimony. That’s where you get the truth from.
What was the essence of her cross-examination? What was the important part, where you got right to the heart of the matter, November 17th? She says, “I didn’t want him to touch me. I just didn’t want to get hurt.” That was the bottom line in her testimony on direct and cross-examination. It was, “Joe, don’t do it.”

(N.T. 3/4/88, 84-85).

Concerning his fourth issue, appellant excerpts the following as showing that the trial court’s remarks during its charge to the jury were improper and should have been timely objected by prior counsel:

You will find in this case, when I come to charging you on the crimes themselves, that the person who commits an act, a criminal act, must do so intentionally, and you have a problem with intention because intention is a mental state and it’s not viable, you can’t see it, can’t feel it, can’t touch it.
The only way it can be proven, if proven at all, is through circumstantial evidence: By the words spoken by the actor, or the action taken by the actor, or the surrounding circumstances and the reasonable inferences that a reasonable person can make from that.
For instance, if I came at you in anger and stated to you I was going to punch you in the mouth, and I cocked my fist and swung it toward your head, and I missed, you could divine what my intent is by the actions that I spoke and the tone of voice in which I spoke them and the actions that I took, and you will infer that I intended to do you harm, punch you in the mouth.
There was evidence in this case that, after the alleged incident and the reporting of the incident to the police, that the defendant barricaded himself and held the police at bay and even threatened his own life. There was evidence of that.
Of course, you have to evaluate that evidence to determine its quality and how much of it you would accept.
I can say to you that, generally speaking, when a crime has been committed and the person thinks that he is or may be accused of having committed it, and he barricades himself, flees, conceals himself from the authorities, such actions [sic] is a circumstance, a factor tending to prove the person’s consciousness of guilt.

LA.

Appellant was charged with the crime of rape as defined in 18 Pa.C.S.A. § 3121. “A person commits a felony ... when he engages in sexual intercourse with another person not his spouse: ...” 18 Pa.C.S.A. § 3121 (emphasis added). This exclusion does not extend, however, to “spouses living in separate residences.” 18 Pa.C.S.A. § 3103. The distinction between domicile and residence is that the former is a matter of intention while the latter is a physical fact. Boswell v. South Carolina Insurance Company, 353 Pa.Super. 108, 116, 509 A.2d 358, 362 (1986). Vaughn had been living with appellant until September of 1987, two months before the rape, when she “moved out.” Vaughn no longer resided with appellant and had started living with her sister. Vaughn was not merely staying over for a few nights at her sister’s place; she had decided to live apart from appellant. Evidence of her living alternately with appellant for several months and with her sister for several months in the years before the incident in order to show she may not have intended to stay with her sister is of no moment. She was “physically” in a separate residence. Therefore, even if it were shown that she was appellant’s spouse by common-law marriage, she would be a spouse living in a separate residence and § 3121 in light of § 3103 would still be applicable. Even if it were determined she was appellant’s common-law spouse and was not living in a separate “residence,” appellant’s assertion that his attempts to show a spousal relationship were improperly blocked are still of no merit as will be shown below.

Opinion evidence by a lay witness is barred when it goes to the “ultimate issue.” Bessemer Stores, Inc. v. Reed Shaw Stenhouse, Inc., 344 Pa.Super. 218, 226, 496 A.2d 762, 766 (1985). A question such as whether appellant’s family “treated” Vaughn “as if [she] were married to [appellant]” calls for an opinion as to an ultimate issue: whether there was a common-law marriage. How his family treated her is irrelevant to the issue which appellant should have been trying to show: that the couple had a general reputation for being married, which itself is an element in showing common-law marriage (discussed below). Asking Chiquita whether “[appellant] and [her] sister were living in what they call common-law” also goes to the same ultimate issue. Allowing Chiquita to reword the question and ask whether they were living together is improper. The questions are completely different and to equate a common-law marriage with simply living together is unfair. The rephrased question to Chiquita as to whether they were “living together as husband and wife” and the question posed to appellant’s landlord as to whether they were living “as man and wife” again call for opinions regarding an ultimate issue. All these questions are subject to varying interpretations and were off the mark from the real issue which was their general reputation for being married and not how others treated them or how they lived.

In the absence of words in praesenti, there is a rebut-table presumption of marriage where constant cohabitation plus a general reputation of marriage exist. In re Estate of Rees, 331 Pa.Super. 225, 228, 480 A.2d 327, 328 (1984). Appellant tried to establish that appellant gave financial support to his children. Such questions do not tend to prove a general reputation of marriage. Standing alone, a monetary relationship between appellant and his children does not prove that appellant and Vaughn were married. Therefore, the trial court properly disallowed the disputed questions because they lacked relevancy.

I.B.

To create a commonlaw marriage, there must be “an exchange of words in the present tense, verba de praesenti, spoken with the specific purpose that the legal relationship of husband and wife be thereby created.” Commonwealth v. Smith, 511 Pa. 343, 352, 513 A.2d 1371, 1375-1376 (1986), cert. denied, Smith v. Pennsylvania, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). Because it is hard to prove such verba de praesenti, there is a rebut-table presumption of marriage where two essential elements exist: constant, not irregular or inconstant, cohabitation plus a broad and general, not partial or divided, reputation of marriage. In re Estate of Rees, 331 Pa.Super. at 228, 480 A.2d at 328. “Cohabitation and reputation are merely circumstances from which the existence of a contract of marriage can be inferred” and not requisites per se to prove a common-law marriage. In re Estate of Kovalchick, 345 Pa.Super. 229, 235, 498 A.2d 374, 377 (1985).

In its charge to the jury quoted above, the trial court made the three factors — verba de praesenti, constant cohabitation, and general reputation — all conjunctive elements instead of partially disjunctive. Viewed equationally, the elements should have been expressed as common-law marriage = verba de praesenti or = (rebuttable presumption: constant cohabitation + general reputation). Instead, the “formula” expressed was: common-law marriage = verba de praesenti + constant cohabitation + general reputation. Such error was harmless, however, because it was neither shown that their cohabitation was indeed constant nor their reputation general. Testimony showed that appellant and Vaughn had lived together sporadically up until two months before the incident when Vaughn moved out. Further, appellant’s questions were designed to elicit each individual’s opinion as to what their relationship was and not what their reputation was in the community or among their friends. Where the court implied in its opinion that cohabitation and reputation in addition to a contract of marriage were needed to find a common-law marriage, such misunderstanding was found to be harmless. In re Estate of Kovalchick, at 236, 498 A.2d at 377.

I.C.

A court may “express its own opinion on the evidence ... providing that statements have reasonable basis and it is clearly left to the jury to decide the facts....” Commonwealth v. Leonhard, 336 Pa.Super. 90, 95, 485 A.2d 444, 446 (1984). The trial court here, before it voiced its opinion, stated the elements it perceived were needed for a common-law marriage. Even though the basis for its opinion was erroneous, its effect was not harmful as discussed above. When the trial court did give its opinion, it immediately qualified it by stating that the jury was not bound by it. Therefore, the expression of its opinion was permissible.

II.

There is no hearsay if contents of police radio calls are offered not for their truth but to explain the officer’s course of conduct. Commonwealth v. Sneed, 514 Pa. 597, 606, 526 A.2d 749, 754 (1987) citing Commonwealth v. Cruz, 489 Pa. 559, 565, 414 A.2d 1032, 1035 (1980). The allegedly objectionable radio call concerned a woman screaming in the area of Chiquita’s apartment at about the time of appellant’s assault outside of the same apartment. The call was made an hour before Chiquita called to report a missing person and several hours before Vaughn made a formal complaint to the police. Because it was in the area of Officer Jacobs’ patrol in North Philadelphia, it was she who was dispatched each time. The contents of the first radio call were offered to show her actions in responding to the next call and both calls were relevant to the way she handled the final call concerning the rape complaint.

III.

During the closing, prosecutors are allowed to argue “any reasonable inferences arising from the evidence.” Commonwealth v. Lawson, 519 Pa. 175, 190, 546 A.2d 589, 596 (1988). When appellant asked Vaughn the open-ended question on cross-examination, “Why had you left him?,” Vaughn divulged a history of abuse at appellant’s hands. She testified that: “[Appellant] tried to make [her] do things that [she] didn’t want to do;” “[appellant] would push [her] and hold [her] against [her] will;” and that when she and appellant fought and he had “blackened [her] eyes and busted [her] lips,” she was too embarrassed to go to the police to file a complaint. (N.T. 3/3/88, 128-129). In his closing cited above, the prosecutor expressly asserted to the jury that he had no knowledge of these incidents of ill treatment and implied that he did not investigate them because they were not relevant to the event in question. (N.T. 3/4/88, 84). The prosecutor properly inferred a history of abuse because Vaughn did not simply testify to one prior incident but implied a history of incidents.

IV.

One of the factors that must be proven to demonstrate ineffectiveness of prior counsel is that the underlying claim has arguable merit. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). In this case, appellant’s claim is ineffectiveness for failing to object to the trial court’s allegedly prejudicial instructions to the jury concerning appellant barricading himself in his apartment after the incident. The underlying claim is that the instructions were so prejudicial as to dictate a new trial.

“Evidence of flight or self-concealment ... may be admitted to show consciousness of guilt and may form a basis, along with other evidence, for an inference of guilt.” Commonwealth v. Colson, 507 Pa. 440, 464-465, 490 A.2d 811, 823-824 (1985), cert. denied, Colson v. Pennsylvania, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). The trial court may instruct the jury that an inference of consciousness of guilt could be drawn from evidence showing flight and concealment. Commonwealth v. Ignatavich, 333 Pa. Super. 617, 625, 482 A.2d 1044, 1048 (1984). In this case, there was evidence showing that after the incident, appellant had fled to his apartment and held the police at bay by holding a knife to his throat. The trial court was able to couch its instructions (see facts above) in terms of what the jury could find after evaluating evidence of such conduct and not what it should find. The court in effect was emphasizing that it was the jury’s province and not the trial court’s. Therefore, the trial court’s instructions were not prejudicial and so, the ineffectiveness claim fails.

Judgment of sentence affirmed.

McEWEN and MELINSON, JJ., concur in the result.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    564 A.2d 222
    Catherine M. KOHL v. John Carl KOHL, Appellant. Catherine M. KOHL, Appellant, v. John C. KOHL.
    Superior Court of Pennsylvania.
    Argued March 20, 1989.
    Filed Sept. 5, 1989.

      Arthur L. Jenkins, Jr., Norristown, for John Carl Kohl.
    James V. Fareri, Stroudsburg, for Catherine M. Kohl.
    Before MONTEMURO, TAMILIA and MONTGOMERY, JJ.
   TAMILIA, Judge:

Catherine Kohl (hereinafter “wife”) and John Kohl (hereinafter “husband”) were married on September 2, 1961 and two children were born of the marriage who are now emancipated. Wife filed a complaint in divorce on August 10, 1983 and the court appointed Salvator Vito as master on April 23, 1985. Several hearings were held between June 1985 and April 1986 and wife filed her brief with the master on January 6, 1987, with husband filing his soon thereafter.

On April 11, 1988 wife petitioned for recusal of master Vito and requested a de novo hearing as Vito had not yet filed his report and in fact, was in contempt of court for failure to abide by court Orders relating to his own acrimonious divorce action. Vito did file the report on April 18, 1988 and exceptions by the parties were filed thereafter, the disposition of which is now being appealed by both parties. Additionally, wife appeals the court’s denial of her petition for recusal; we will first address that issue.

Wife argues not only did the master, Vito, fail to timely render a decision in their case, but he was suffering from drug and alcohol abuse and was in the middle of his own divorce, both of which situations prejudiced her. Vito denies any prejudice was suffered by wife and she fails to point to any instance where the master acted in a biased or hostile manner toward her. Although he admits he was not in compliance with the procedural rules regarding the time for filing his report, he counters that wife’s counsel did not question the delay until the master’s marital difficulties were publicized, thus making it appear wife was simply trying to use the master’s personal problems to her advantage to obtain an opportunity to submit new or additional evidence because she was unhappy with the report.

While we understand how wife could believe she was prejudiced under these circumstances, we find the trial court did not err in refusing to grant her petition for recusal. Certainly we do not condone the master’s tardiness in filing his report, but the issue of whether he should have been recused because his findings and report were biased against wife must be resolved in the master’s favor when, as here, no specific allegations of bias are stated or proven. The master’s report and recommendations are advisory only; the trial court is required to make an independent review of the report and recommendations to determine whether they are appropriate. Goodman v. Goodman, 375 Pa.Super. 504, 544 A.2d 1033 (1988). This being the case, any possible bias on the part of the master would be reviewed by the trial court and corrected since the trial court was responsible for making the final Order.

Of the other issues raised by wife, the first is that the court erred in denying her request for alimony, alimony pendente lite and counsel fees and expenses. Under the Divorce Code, 23 P.S. § 101 et seq., alimony may be awarded by the court if the party seeking alimony lacks sufficient assets to support herself and is unable to support herself through appropriate employment. 23 P.S. § 501(a). Our review of the record discloses nothing which would cause us to find the trial court abused its discretion in finding the wife has sufficient assets on which to live and support herself and is able to supplement the award by obtaining appropriate employment. We find the trial court was correct in rejecting her claim.

Alimony pendente lite and counsel fees and expenses may be awarded in proper cases by the court upon petition by a party. 23 P.S. § 502. The trial court determined wife was not in need of alimony pendente lite or counsel fees and expenses because the purpose of such an award is to enable the dependent spouse to adequately litigate the divorce action and pursue her rights.

Wife received $200 per week from husband from the time they separated in 1981 until May of 1988. He also made the mortgage payments on the marital residence in which wife has continued to reside, and he paid the taxes, insurance and monthly oil bill for the home. In light of this and the wife’s earnings, the court found wife had adequate resources to maintain the divorce action and support herself. Wife is presently earning $100 per week at a part-time job but could obtain full-time employment if her needs warranted it.

Our standard of review is narrow on issues such as this, being an abuse of discretion standard. Adelstein v. Adelstein, 381 Pa.Super. 221, 553 A.2d 436 (1989), Barner v. Barner, 364 Pa.Super. 1, 527 A.2d 122 (1987). We find the trial court did not err in denying wife’s claim for alimony pendente lite and counsel fees and expenses. Counsel fees are not awarded automatically and the petitioning spouse must show actual need before such an award is justified. Adelstein, supra. “Counsel fees are appropriate when necessary to put the parties ‘on par’ in defending their rights or in allowing an action for divorce.” Id. 381 Pa.Super. at 224, 553 A.2d at 437. “An award of alimony pendente lite is designed to enable the dependent spouse to maintain or defend the action in divorce.” Barner, supra, 364 Pa.Super. at 18-19, 527 A.2d at 131. Due to husband’s continued support payments to wife for approximately seven years after separation and her income, we believe the court was correct in finding an award of alimony pendente lite and counsel fees and expenses was not necessary.

The next issue we must address, the only issue presented by husband on appeal, concerns the trial court’s equitable distribution award. Wife argues she did not receive a full 50% of the assets even though the court stated in its decree each party would receive an equal share, whereas husband argues the court should not have concluded the bowling alley corporation was marital property subject to equitable distribution. The focus of both parties’ arguments is the bowling alley corporation acquired from husband’s father. For the sake of understanding and “readability,” prior to our discussion of the equitable distribution of the bowling alley we will address wife’s contention the court erred in its valuation of the business.

The trial court found husband’s expert to be more credible than wife’s and accepted his valuation of $540,000 rather than accepting wife’s expert’s valuation of between $590,000 and $690,000.

The Divorce Code does not include a specific method of valuing assets. We have previously held that the court must exercise its discretion, relying upon the estimates and inventories submitted by both parties, the records of purchase prices, and appraisals. In determining the value of marital property, the court is free to accept all of the testimony, portions of the testimony, or none of the testimony regarding the true and correct value of the property.

Aletto v. Aletto, 371 Pa.Super. 230, 242, 537 A.2d 1383, 1389 (1988) (citations omitted). We find no error in the trial court’s acceptance of husband’s expert’s valuation, noting that even by using his figure the value of the property increased by 170 per cent during the time period in question.

The parties were married in 1961 at which time husband worked for his father at the bowling alley owned and operated by him. Husband continued to work there until the fall of 1968 when he purchased the business from his father through a purchase agreement. The agreement stated the purchase price as being $200,000, although simultaneous to the execution of the agreement, father made a gift of $50,000 to husband, thereby reducing the indebtedness to $150,000 which was to be repaid at a rate of $909.08 per month. The stock certificates of the corporation were transferred to husband and held in his name alone.

Husband operated the business and made the monthly-payments to his father until his father died in October 1970. Father’s will provided as follows:

FIFTH: I give unto my son, John C. Kohl, any amount due and owing on account of principal or interest on account of certain indebtedness evidenced by the promissory note of my said son in the amount of Two Hundred Thousand ($200,000) Dollars dated September 1, 1968, said indebtedness being the same as that secured by a bond and mortgage given by Stroud Lanes, Inc., the sole stockholder of which is my said son, John C. Kohl.

Defendant’s Exhibit # 10.

Husband claims he acquired the bowling alley business as a gift through his father’s will, thereby exempting this asset from marital property under section 401(e)(3) of the Divorce Code. The trial court rejected this argument, finding the original gift of $50,000 is not includable with marital property but the remainder of the acquisition is marital property subject to equitable distribution. The court went on to determine the value of the business to be $540,000, the value given by husband’s expert who had more credibility, according to the court, than wife’s expert who valued the business at $590,000 to $690,000. According to the trial court, therefore, the total appreciation amounted to $340,000, in addition to the $150,000 original value ($200,000 less $50,000 gift), for a total of $490,000 to be considered marital property.

Our first consideration must be whether the father’s will bequest forgiving the debt amounted to a gift to his son, thereby making the bowling alley corporation non-marital property. The trial court relied on MacBeth v. MacBeth 35 D. & C.3d 339 (1985), which held that forgiveness of a debt extinguishes liability but does not constitute a “gift” of property as referred to in § 401(e)(3) of the code. Husband claims this is error and Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986) (en banc), is controlling. In Campbell, husband’s father was part owner of a candy company and gave one-half his interest to husband, valued at $26,000. Six thousand dollars ($6000) was an outright gift and husband borrowed $20,000 from a bank to pay the balance due. Father, however, was the one who repaid the loan taken out by husband. This Court, en banc, determined father had made a gift to husband and it was received as a gift, therefore, husband’s interest in the business was not marital property.

We believe Campbell is controlling. It is of no significance that the father paid off a loan for the balance due in Campbell or “gave” the son the amount due on a loan as is the case here. In either case the satisfaction of the outstanding obligation was a gift by the father to the son. Since the stock was transferred to the son alone under the initial agreement, forgiveness of the outstanding indebtedness of the son by the father in his will was consistent throughout to the grant of a gift to the son. There appears to be no intent to make a gift to the entireties. See Campbell, supra. Only if the outstanding loan had been paid off with income generated during the marriage would the property have acquired the status of marital property. Forgiveness of debt by the father to the son at father’s death completed the gift which, during the lifetime of the father, was conditioned on the father’s death. The gift of the remaining indebtedness, however, is subject to a charge of $23,634 (26 payments X $909 each) paid toward the loan from marital assets. The forgiveness, therefore, was of $126,366 ($150,000 loan (after $50,000 gift) ± $23,634 paid ' = $126,366). The total gift, therefore, was $176,366.

Husband’s father died in October 1970, the sale was entered into September 1968, which is also the date of the $50,000 gift. The- final separation occurred in April 1981. Thus, there appears to be a substantial increase in value of the gift of $50,000 from 1968 to 1981, and of the $126,366 between October 1970 and April 1981, all of which is marital property pursuant to section 401(e). The marital property, therefore, is represented by 1) the $23,634 and its increase in value to the time of distribution, 2) whatever increase in value occurred on the initial $50,000 gift to the date of separation, and 3) the increase in value of the $123,666 forgiveness between the date of father’s death and the time of final separation. The gifts in and of themselves ($50,000 and $123,666) are not marital property subject to distribution. To arrive at the figure for distribution, findings are necessary as to the value of the bowling alley at the time of separation as well as the date of distribution. In addition, the trial court will have to determine the percentage or ratio of value represented by the increase in value of the gifts and the $23,634 payoff, as to the total value of the property, at the relevant times for fixing value.

Wife’s final claims which remain to be considered are that she was not awarded her marital share of the value of husband’s condominium in St. Martin, a valuable watch and husband’s interest in the land on which the racquetball facility sits. As to the time share property in St. Martin and the watch, although the trial court fails to mention either in its Opinion, we agree with the master that as the purchase of the St. Martin property took place after the couple’s separation and as there was no evidence the purchase depleted the marital estate, the property is not subject to distribution. 23 P.S. § 401(e)(4); Master’s Report, 4/18/88, p. 12. With regard to the “valuable watch purchased by her husband,” appellant refers to in her brief at page 13, we find no reference to it either in wife’s exceptions to the master’s report or anywhere in the record nor has wife referred us thereto. Wife has therefore waived any claim she may have had to the watch. With regard to the racquetball facility property, husband testified he receives $1 per year in rental from the club (N.T. 1/31/86, p. 72) and does not rent the land at its fair market value because he just wants to be rid of the problems associated with the racquetball corporation (N.T. 1/31/86, p. 108). He also testified he receives $968.01 per month from his former business partner for the sale of his stock in the racquetball corporation; this monthly payment is the result of a $60,000 note at 15 per cent interest payable to husband. (See N.T., 6/25/85, p. 34). Although wife claims an interest in the land, the trial court does not address the issue in its Opinion or decree. Certainly this land is an asset of husband’s which may be subject to equitable distribution, wife’s share being one-half in accordance with the trial court’s division of property. Accordingly, on remand the trial court is directed to determine the value of this property and make an adjustment to the equitable distribution award if necessary.

Order of the trial court is affirmed except as to the distribution decreed of the bowling alley and racquetball facility; as to equitable distribution of the value attributed to the bowling alley and racquetball facility, case is remanded for further proceedings consistent with this Opinion.

Jurisdiction is relinquished.

      . We note that the trial judge who entered the Order appealed from in the instant case is the same judge involved in the master’s divorce action and who found the master in contempt of court. Therefore, the judge was well aware of the master’s situation and was likely to examine his report and recommendations more closely.

      . This action is governed by the Divorce Code language as it existed prior to the amendment of Act 1988, No. 13, effective February 12, 1988.

      . This fact is not dispositive to the issue of whether or not the corporation is marital property for purposes of equitable distribution. Section 401(f) of the Divorce Code provides:
      (f) All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (e).

      . (e) For purposes of this chapter only, "marital property” means all property acquired by either party during the marriage except:
      (3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.
      23 P.S. § 401(e)(3) (pre-1988 Act).

      . We note wife’s argument that no value was placed on the land on which the bowling alley sits, however, the valuation given by husband’s expert purports to include all aspects of the business including the land and physical plant. (See N.T. 10/29/85, p. 152.) The value given is the value of the bowling alley business as it currently exists which is a proper valuation.


author: DEL SOLE, Judge:

text:
    564 A.2d 227
    COMMONWEALTH of Pennsylvania v. Franklin TRIPLETT, Appellant.
    Superior Court of Pennsylvania.
    Argued March 30, 1989.
    Filed Aug. 29, 1989.

      Jon S. Pushinsky, Pittsburgh, for appellant.
    Ahmed Aziz, Asst. Dist. Atty., Aliquippa, for Com., appellee.
    Before WIEAND, DEL SOLE and MELINSON, JJ.
   DEL SOLE, Judge:

This appeal is from an order denying Appellant, Franklin Triplett’s, PCHA petition. After a non-jury trial, Appellant was convicted of driving under the influence of alcohol or controlled substance, 75 Pa.C.S.A. § 3731, and leaving the scene of an accident involving damage to an attended vehicle, 75 Pa.C.S.A. § 3743. Trial counsel failed to file post-trial motions and by motion an order was entered dismissing Appellant’s direct appeal but permitting him to file for relief under the Post Conviction Hearing Act. Following a PCHA hearing on the issues originally raised in his direct appeal, Appellant was denied relief.

This case arises out of an incident which occurred in the Borough of Ambridge, Beaver County. Evelyn Wilson was driving her car in Ambridge at about 9:30 in the evening when it was struck by an automobile operated by Appellant, Franklin Triplett. He left the scene of the accident without stopping and proceeded into Allegheny County.

Officer Bruce Poninsky of Leet Township, Allegheny County testified that at approximately 9:30 on that same evening, he was stopped at a store in Leetsdale approximately three blocks from the scene of the accident and about a block and a half from the Beaver County border. While he was there, an unidentified man came on the premises and told him that he had witnessed a hit and run accident and that the car was a small red vehicle. The man gave the officer the license plate number of the vehicle. Upon receiving this information, Officer Poninsky resumed his patrol and proceeded after the red car. He spotted it almost immediately, and while pursuing he heard a radio transmission from Ambridge concerning a hit and run accident. About three-quarters of a mile from the store he stopped Mr. Triplett. Before exiting his patrol car, Officer Poninsky contacted the Ambridge police and asked that an officer come to Leetsdale to determine if Mr. Triplett’s auto was involved in the hit and run.

Within minutes, Ambridge Officer Kuzma arrived at the scene. Both officers testified that Mr. Triplett smelled of alcohol and had slurred speech and glazed eyes. Appellant staggered as he got out of the car, could barely stand, and had to be helped from his car to the patrol car. The officers also found green paint matching that of Ms. Wilson’s vehicle on a damaged part of Appellant’s car.

The Ambridge officer took Appellant to the hospital for blood tests, stopping on the way at the Ambridge police station for the required forms. Evelyn Wilson was in the police station waiting to make her report when the police brought Mr. Triplett into the station, but she did not make a formal identification of Appellant at that time. The results of the blood test were .32. The Appellant was charged with the crime in Ambridge, Beaver County.

On appeal, Mr. Triplett raises four issues for our review: (1) whether the arrest of Appellant was illegal, (2) whether the case should have been dismissed for violation of Rule 1100, (3) whether the trial court committed prejudicial error by admitting the results of Mr. Triplett’s blood test, and (4) whether the in-court identification of Mr. Triplett by a witness who viewed him in a face to face confrontation in the police station with no other person present is tainted, and in violation of the due process clause of the Constitution.

We will discuss each issue seriatim. After thoroughly reviewing the issues and the record we affirm the trial court’s decision.

Appellant asserts that his arrest was illegal on several grounds. First, he claims that the stop by Officer Poninsky in Allegheny County was an illegal arrest because it violated Pa.R.Crim.P., Rule 51, 42 Pa.C.S.A. and 75 Pa.C.S.A. § 6304(b), which authorizes an arrest only of a non-resident on a summary offense and only if the offense were committed in the presence of the police officer. Since the hit and run occurred outside the presence of any police officer, according to Appellant, the arrest in Allegheny County was illegal.

Although we agree that the summary offense of failing to stop at the scene of the accident, 75 Pa.C.S.A. § 3743, was not committed in the presence of a police officer, no determination of the residential status of the Appellant was made. However, we need not ascertain whether Appellant was a non-resident for the purposes of 75 Pa.C.S.A. § 6304(b) which concerns warrantless arrests for summary offenses, since Officer Poninsky did not arrest Appellant when he stopped him in Leetsdale.

Rather, this stop may be characterized as an investigation detention, which subjects the suspect to a stop and a period of detention. It must be supported by reasonable suspicion, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. Commonwealth v. Douglass, 372 Pa.Super. 227, 539 A.2d 412 (1988). Furthermore, 75 Pa.C.S.A. § 6308(c) authorizes a police officer who has articulable and reasonable grounds to find a violation of this title, to stop a vehicle upon request or signal, in order to secure such information as the officer finds necessary to enforce the provisions of the Motor Vehicle Code. See, Commonwealth v. Fisher, 294 Pa.Super. 486, 490-91, 440 A.2d 570 (1982).

Here, Officer Poninsky had reasonable and articulable grounds to suspect a violation of the Motor Vehicle Code by Appellant. He had been informed that a car fitting the description of Appellant’s car as to color and license plate number, had been involved in a “hit and run.” Shortly thereafter, the officer heard a Beaver County police radio broadcast concerning the reported hit and run. After stopping Appellant’s car, the officer told him he was stopped for a possible hit and run and that the Ambridge police were coming to question him. Appellant was detained for approximately three minutes before the Am-bridge police officer arrived, during which time Officer Poninsky only asked to see the Appellant’s license and registration. He did not ask the Appellant to get out of his car. Therefore, because the stop was supported by reasonable suspicion, involved a minimal amount of coercion, and a brief period of detention, it was a legal investigative detention by the officer in Allegheny County.

Next, Appellant argues that if the arrest were effectuated by Officer Kuzma from Ambridge, the arrest was unlawful because Officer Kuzma was not in “fresh pursuit,” and had no authority to arrest Mr. Triplett outside his own jurisdiction. Although we agree that the arrest was made outside Officer Kuzma’s jurisdiction, and he was not in “fresh pursuit,” of Appellant as defined in Commonwealth v. Brown, 298 Pa.Super. 11, 444 A.2d 149 (1982); Commonwealth v. Magwood, 503 Pa. 169, 469 A.2d 115 (1983), we hold that the arrest was legal because Officer Kuzma was coming to aid the Leet officer. When officers are asked to leave their primary jurisdiction and assist in an adjacent jurisdiction, then the officers assisting are granted all the powers conferred on the police as if acting within their primary jurisdiction.

42 Pa.C.S.A. § 8953 regulates municipal police operating outside their jurisdiction. The general purpose of the statute is to restrict the jurisdiction of the police to their own municipalities, while allowing certain practical and policy exceptions to the general rule. Commonwealth v. Merchant, 385 Pa.Super. 264, 560 A.2d 795 (1989). Subsection (a)(3) provides that a police officer has the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office beyond the the territorial limits of primary jurisdiction as if enforcing those laws within the officer’s primary jurisdiction when the officer has been requested to aid or assist any local, State or Federal law enforcement officer or otherwise has probable cause to believe that the other officer is in need of aid or assistance.

Commonwealth v. Peppers, 357 Pa.Super. 270, 515 A.2d 971 (1986), was the first case in our court to address the application of subsection (a)(3). In that case, an officer heard a radio broadcast description of a robbery suspect’s vehicle from a nearby vehicle. After a radio conversation between Officers of the two municipalities, the first officer stopped a vehicle matching the broadcast description, and this court held that the first officer was acting pursuant to a local officer’s request for aid.

Although, the facts in our case are slightly different in that the Appellant was arrested by an Ambridge officer acting outside his jurisdiction in response to a radio communication from the Leet officer, we find that the radio communication was an even more direct request for aid than in Peppers. Here, the Leet police officer specifically radioed Ambridge for the purpose of requesting someone to help identify the stopped vehicle. (N.T at 28, 37 January 20, 1987).

Therefore, the Ambridge officer had been called to aid the Leet police under 42 Pa.C.S.A. § 8953(a)(3). Although the crime had not been committed in the presence of a police officer in Ambridge, 75 Pa.C.S.A. § 3731(c) authorizes such arrests if there is probable cause to believe the driver is intoxicated regardless of whether the alleged crime was committed in the presence of an officer. Appellant had driven through Ambridge just prior to his arrest, and the Ambridge officer had probable cause to believe that he was intoxicated at the time of his arrest, and therefore it was lawful for the Ambridge officer to arrest Appellant in Leetsdale for driving under the influence, an offense which occurred in Ambridge. See Commonwealth v. Monaghan, 295 Pa.Super. 450, 441 A.2d 1318 (1982).

Appellant next argues that the case should have been dismissed because trial commenced two hundred and six (206) days after the complaint was filed in violation of Pa.R.Crim.P., Rule 1100. Appellant contends that only 15 days of the delay are attributable to him, while the rest of the delays can be charged to the Commonwealth. We find this argument meritless.

On September 8, 1986, Appellant filed a omnibus pre-trial motion which inter alia solicited additional time to file an amended omnibus pretrial motion because the Commonwealth failed to comply with discovery. The trial court granted the continuance for filing the amended motion and for compliance with the discovery order, and set the case for the October trial list. Next, the Appellant requested a postponement of the October trial due to a failure to list the pre-trial motion for argument. The trial court then postponed the case to the December trial term.

Appellant argues, relying on Commonwealth v. Yant, 314 Pa.Super. 442, 461 A.2d 239 (1983), that this failure should be chargeable to the Commonwealth. However, this reliance is misplaced. In Yant the Commonwealth asked for an extension for failure to list the pre-trial motions, which was denied by the court. Here, the defense requested a postponement and did not make a request that postponement be charged to the Commonwealth.

Thus, this thirty (30) day postponement is chargeable to the Appellant as is the first fifteen (15) day postponement, and the total of forty-five (45) days must be excluded from the calculations under Rule 1100(c)(3)(ii). Subtracting the excludable time, the trial commenced 161 days after filing the complaint, and thus there was no violation of Rule 1100.

Next, we consider if the trial court erred in admitting the results of Mr. Triplett’s blood test. First, Appellant argues the test was inadmissible because it was taken incident to an unlawful arrest. We find no merit in this argument because, as discussed above, the arrest of Appellant was lawful.

Secondly, Appellant states that the admission was error because an inadequate foundation had been laid to support this admission. This is also without merit because Appellant consented to the test, the chain of evidence was established without question, and testimony established that the laboratory and the equipment were certified to make blood-alcohol tests. Appellant cites no cases to support his assertion that the Commonwealth failed to meet its burden when it did not establish that the proper procedures were followed the night in question, thus we find that a perfectly adequate foundation was established for admission of the blood alcohol test results.

Finally, we must decide whether the in-court identification by Evelyn Wilson, who was driving the car which was involved in the car accident with Appellant, was tainted and inadmissible due to the prior confrontation with the Appellant in the police station. In this case, the confrontation in the Ambridge police station occurred shortly after the accident occurred, (within twenty minutes), and within ten minutes after Appellant’ arrest. (See, N.T. at 9, 19, January 20, 1987). Officer Kuzma stopped at the station to pick up medical and arrest forms prior to transporting Appellant to the Medical Center for blood-testing and Evelyn Wilson happened to be present at the police station to report the accident. Ms. Wilson was not asked to identify Appellant as the driver of the car at that time, and she did not speak with Mr. Triplett or Officer Kuzma. (N.T. at 9, 10, 50, January 20, 1987).

Where an in-court identification has a basis sufficiently independent from an unduly suggestive confrontation, that identification is admissible regardless of any stain found to exist in the confrontation procedure. Commonwealth v. Johnson, 291 Pa.Super. 566, 578, 436 A.2d 645 (1981). “Absent some special elements of unfairness, however, a prompt in-custody-at-the-scene identification is not unduly suggestive.” Id., at 291 Pa.Super. at 579.

Here, the trial court specifically stated that Ms. Wilson was a credible witness who testified that she was able to identify Mr. Triplett based on what she saw of the individual operating the vehicle. (N.T. at 10, January 20, 1987). Thus, there was a basis for the in-court identification sufficiently independent from the confrontation.

Furthermore, the confrontation, which occurred fortuitously, was not unduly suggestive. In Johnson, supra, a confrontation staged by the police shortly after the commission of crime, where the victim was asked if the individual in custody was one of the robbers was deemed “not unduly suggestive.” There was even less suggestiveness in the circumstances of the instant confrontation where it occurred fortuitously, shortly after the crime, and involved no conversation with the victim in an attempt to procure a formal identification. We therefore find no trial court error in admitting the in-court identification of Evelyn Wilson.

Accordingly we affirm the judgment of sentence.

WIEAND, J., concurs in the result.

      . Officer Poninsky testified that he was employed by Leet Township, (N.T. at 26, January 20, 1987). Leetsdale is a separate municipality. The record does not indicate whether Leet Township police have the authority to act in Leetsdale. However, no issue was raised that Officer Poninsky was not acting within his primary jurisdiction when he stopped Appellant.


author: TAMILIA, Judge,

text:
    564 A.2d 233
    COMMONWEALTH of Pennsylvania v. Royce WELSH, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1989.
    Filed Sept. 15, 1989.

      Charles R. Witaconis, Asst. Public Defender, Scranton, for appellant.
    Andrew Jarbola, Dist. Atty., Scranton, for Com., appellee.
    Before DEL SOLE, TAMILIA and CERCONE, JJ.
   DEL SOLE, Judge.

This is an appeal of a judgment of sentence following the non-jury trial of Appellant, Royce Welsh, who was convicted of the crime of escape because of his failure to return to a half-way house after he was given a temporary pass to visit his family.

Mr. Welsh contends on appeal that the court erred in denying his pre-trial motion to dismiss due to the violation of Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A. We agree and therefore need not address the other issues raised.

Appellant was charged by written complaint with the crime of escape on February 21, 1986. He was not apprehended until April 20, 1987 and then a preliminary hearing was held on April 23, 1987. Under either old Rule 1100(d)(1) or amended Rule 1100(c)(3)(i), the period from February 21, 1986 to April 20, 1987 is excluded time, and therefore the time for purposes of this rule would start running from April 20, 1987.

Until the amendment of Rule 1100, effective December 31, 1987, Appellant should have been tried by Oct. 20, 1987, 180 days from the date he was apprehended, however, the Commonwealth filed a motion for the extension of time on August 20, 1987, and the court granted the Commonwealth an extension to November 20, 1987.

On November 16, 1987 the Commonwealth then filed a second motion for extension of time for trial. Judge Cot-tone, on December 2, 1987, erroneously entered an extension of time until February 12, 1988, because the Commonwealth had led him to believe the motion was uncontested. On December 15, 1987, the trial court, with the Hon. James Walsh, P.J. presiding, held a new hearing on the same motion for extension, and on Appellant’s motion to dismiss based on Rule 1100 violations.

On January 14, 1988 the court ruled, by order and opinion, that the motion to dismiss was denied, and the motion to extend was denied because there was no due diligence on the part of the Commonwealth. The court held:

The Commonwealth contends that they could not call his case for trial because they did not know the name of his attorney and only knew he was a member of the Public Defenders Office. It is undisputed that the Defendant’s case was not called for trial in September, October, or November of 1987.
We find that the Commonwealth’s argument has no merit. A mere reading of the Defendant’s file would indicate that Attorney Charles Witaconis was the Defendant’s attorney ...
The record also reveals that the week of criminal trial of September 21, 1987, only two criminal cases went to trial while 5 judges and 4 court rooms were available, and on the criminal trial week of October 26, 1987, 8 cases went to trial, and in the 2 week trial term of November 9, and November 16, 1987 only 4 criminal cases went to trial. This Court finds there was no due diligence on the part of the Commonwealth.
However the amendment to Rule 1100 is effective immediately and was filed December 31, 1987. The amended Rule 1100 states a Defendant is entitled to bail if not tried within 180 days ... By Virtue [sic] of the change in Rule 1100, he is entitled to bail on this change [sic]. Therefor [sic] because this Defendant is entitled to bail on this change, [sic] the Commonwealth has 365 days from the date of his apprehension. The Commonwealth has until April 20, 1988 to bring this Defendant to trial. Thus, the Commonwealth’s requested extension was de-

nied, as was the motion to dismiss, and the case was tried on March 14, 1988 before the President Judge.

It is well settled that the Commonwealth bears the burden of proving prosecutorial due diligence. Commonwealth v. Ehredt, 485 Pa. 191, 195-196, 401 A.2d 358, 360-361 (1979); Commonwealth v. Thomas, 361 Pa.Super. 1, 9-11, 521 A.2d 442, 447 (1987); Commonwealth v. Tyler, 382 Pa.Super. 384, 389, 555 A.2d 232, 234 (1989). However, due diligence does not demand perfect vigilance and punctilious care, but rather a reasonable effort. Id.

We agree with the trial court that failure to consult the record for the name of the attorney does not constitute a reasonable effort, and therefore find that the requested extension was rightly denied as showing lack of due diligence. However, we do not agree that amended Rule 1100 should have been applied to the case at bar.

In Commonwealth v. Palmer, 384 Pa.Super. 379, 558 A.2d 882 (1989), this court addressed the issue of when to apply amended Rule 1100. Consistent with the Statutory Construction Act, 1 Pa.C.S.A. 1953, and the proscription contained in 1 Pa.C.S.A. § 1926 against retroactive application of criminal statutes, the Palmer court held that the longer period of the amended Rule, (365 days), became applicable immediately upon its effective date in all cases where the period established by the prior rule had not expired. Id., 384 Pa.Superior Ct. at 383, 558 A.2d at 884.

Here, the Rule 1100 period expired prior to the the effective date of the amended Rule. Since the extension requested by the Commonwealth had been denied, the run date ended on November 20, 1987, the date specified in the court order granting the first extension. Therefore, the Commonwealth failed to bring Appellant to trial within the 180 days required under the old Rule, and this period expired before the effective date of the amended Rule. The amended Rule can not be used to revive a prosecution whose run date under the old Rule had already passed.

We believe that this holding is analogous to the holdings in several recent cases concerning the application of an extended statute of limitations. In Commonwealth v. Johnson, 520 Pa. 165, 553 A.2d 897, 900, and Commonwealth v. Harvey, 374 Pa.Super. 289, 542 A.2d 1027 (1988), it was held that the amendment extending the statute of limitations for rape from two (2) to five (5) years could be applied to prosecutions commenced after the effective date of the amendment if the earlier statute of limitations had not expired prior to the effective date of the amendment to the rape statute. Both cases cite the holding of Commonwealth v. Duffy, 96 Pa. 506, 514 (1881), which states that a right to acquittal is absolutely acquired by the completion of the period of limitation, but absent that completion the period is subject to enlargement or repeal without being obnoxious to the constitutional prohibition against ex post facto laws. Conversely, it is présumed, prosecutions under an enlarged period of limitation, when the period of limitations has already run before the amendment or repeal of the statute, would be obnoxious to the constitutional prohibition against ex post facto laws.

Similarly, an enlarged period of time for bringing an accused to trial under Rule 1100, may not be applied when the previous limitation on the time that the Commonwealth may act has already passed before the new statute takes effect.

Judgment of sentence is vacated, and charges against Appellant are dismissed. Jurisdiction relinquished.

TAMILIA, J., files a dissenting statement.

TAMILIA, Judge,

dissenting.

I respectfully dissent and would affirm on the Opinion of the trial judge.

The majority reverses because the holding by the trial judge that a previous motion to extend time-by the Commonwealth (November 16, 1987) had been erroneously granted, and thereby was a nullity, rendered the application of the December 31, 1987 amendment to Rule 1100 inapplicable. I disagree and would concur with President Judge James Walsh:

This case and the charges were pending before the Court on December 31,1987, when the rule was amended. The rule on which Defendant relies now gives the Commonwealth 365 days to bring the Defendant to trial. We find no violation of Rule 1100.

Slip Op., Walsh, J., pp. 2-3.

While there appears to be an element of unfairness in this ruling, it must be considered that on November 16, 1987, when the motion was presented, there was still opportunity to go to trial prior to the expiration date of November 20, 1987, under the previous grant of an extension of time to the Commonwealth. Had the motion judge, Judge Cottone, who granted the motion on December 2, 1987 as an uncontested motion, been aware it was contested, one could only conjecture as to his ruling since he would not have had available to him the rationale applied by Judge Walsh. Arguments which are rejected under one set of conditions could appear plausible under different circumstances. Under any circumstances, the case was still pending before the court on December 31, 1987 and, therefore, was subject to the amendment to Rule 1100 which went into effect at that time.

As to the other arguments proposed by appellant, they appear to be without merit and specious at best. I would affirm on the Opinion of the trial court.


author: HOFFMAN, Judge: TAMILIA, Judge, JOHNSON, Judge,

text:
    564 A.2d 235
    COMMONWEALTH of Pennsylvania, Appellant, v. Orick ALSTON.
    Superior Court of Pennsylvania.
    Submitted July 17, 1989.
    Filed Sept. 19, 1989.

      David J. Novak, Asst. Dist. Atty., Philadelphia, for Com.
    William D. Schroeder, Jr., Philadelphia, for appellee.
    Before TAMILIA, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from a judgment of sentence for driving under the influence of alcohol, which was entered following appellee’s guilty plea. Appellant, the Commonwealth, contends that the trial court erred in refusing to consider appellee’s prior acceptance of Accelerated Rehabilitative Disposition (ARD) for an unrelated driving under the influence offense, a prior conviction as prescribed by 75 Pa.C.S.A. § 3731(e)(2). Although we agree with the Commonwealth that appellee should not have been sentenced as a first offender, we also find that appellee’s guilty plea was not knowingly and voluntarily entered because he was misinformed as to the potential sentence he could receive. Accordingly, we vacate the judgment of sentence and remand with directions to allow appellee to withdraw his guilty plea.

Appellee was arrested on July 3, 1984 and charged with driving under the influence of alcohol in violation of § 3731 of the Pennsylvania Motor Vehicle Code. 75 Pa.C.S.A. § 3731. Appellee appeared in Philadelphia Municipal Court on June 11, 1986 and entered a plea of guilty. On February 18, 1987 at sentencing, the Commonwealth notified the court that appellee was a second time offender and that they would be seeking the mandatory minimum sentence of 30 days. The municipal court refused to sentence appellee as a second time offender, but instead imposed a sentence of forty eight hours imprisonment. The Commonwealth filed a petition for reconsideration of the sentence, which was denied. The Commonwealth appealed to the Court of Common Pleas which affirmed the Municipal Court’s sentence. This timely appeal followed.

The Commonwealth contends that appellee was sentenced improperly. We agree. 75 Pa.C.S.A. § 3731(e)(1) states:

Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum imprisonment of:
(i) not less than 48 consecutive hours.
(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdiction within the previous seven years.

A prior inclusion in the ARD program is considered a first conviction for purposes of this section. Id. § 3731(e)(2). Here, appellee had a prior arrest for drunk driving on July 22, 1983, and he was placed in the ARD program. Therefore, his 1984 offense constituted a second conviction for purposes of § 3731(e)(1)(ii). Commonwealth v. Becker, 366 Pa.Super. 54, 63-64, 530 A.2d 888, 893 (1987) (en banc), allocatur denied 520 Pa. 586, 551 A.2d 213 (1988); see also Commonwealth v. Gretz, 368 Pa.Super. 94, 97, 533 A.2d 732, 734 (1987). Appellee thus should have been sentenced to the thirty day term of imprisonment specified for second offenders. Accordingly, the sentence of the trial court must be vacated.

Appellee argues that, if this Court holds that he should have been sentenced as a second offender, he should be allowed to withdraw his guilty plea. Specifically, he argues that his plea was not knowingly and voluntarily entered because the court misinformed him regarding the potential sentence he would have received. We agree. A person may attack a guilty plea after sentencing on three grounds: (1) the legality of the sentence; (2) the jurisdiction of the court; and (3) the voluntary, knowing, and intelligent nature of the guilty plea itself. See Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975); see also Pa.R.Crim.P. 319(a). The comment to Rule 319 notes that, at a minimum, a judge should inquire into the following six areas before accepting a plea:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has the right to trial by jury?
(4) Does the defendant understand that he is presumed innocent until he is found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Id. (emphasis supplied). With regard to the fifth question, this Court has noted:

A knowing and voluntary guilty plea must provide the opportunity to a defendant to assess his chances of obtaining a reduced sentence as opposed to going to trial. A defendant may well take his chances at trial rather than entering a guilty plea if he is made aware that entering a guilty plea will require an imposition of a five-year mandatory minimum sentence by the court.

Commonwealth v. Crum, 380 Pa.Super. 280, 288, 551 A.2d 584, 589 (1988). During the trial colloquy in the instant case, appellee was informed of all the essential elements of a guilty plea. However, when explaining the possible sentence to appellee, the trial court misinformed appellee regarding the sentence it could impose. The trial court informed appellee that it would impose the mandatory minimum sentence of 48 hours and that it would give appellee credit for 24 hours. N.T. June 11, 1986 at 12-13. Because appellee was misinformed as to the potential sentence he could receive, we must conclude that his guilty plea was not knowingly and voluntarily entered. Accordingly, we remand with directions that appellee be permitted to withdraw his plea.

For the foregoing reasons, we vacate the judgment of sentence and remand with directions to allow appellee to withdraw his guilty plea.

Vacated and remanded. Jurisdiction relinquished.

TAMILIA, J., files a concurring statement.

JOHNSON, J., files a dissenting opinion.

TAMILIA, Judge,

concurring.

I vote to join Judge Hoffman in the above-captioned case. While I agree with Judge Johnson’s dissent that appellee has not appealed his sentence on the basis of denial of his motion to withdraw his guilty plea and we are considering the Commonwealth’s appeal of an improper sentence, it is in the interest of judicial economy and would be circuitous not to direct that appellee be permitted to withdraw his guilty plea. Otherwise, the matter must be remanded for resentencing, at which time a motion to withdraw the guilty plea, if presented, would most certainly be entertained, prior to resentencing. See Pa.R.Crim.P. 320.

This also appears to be one of the rare instances when granting a motion to withdraw guilty plea is justified. The trial court was emphatic in telling the district attorney and appellee that the sentence would be a mitigated sentence which was a condition under which the plea was accepted. See Plea hearing, 6/11/86, p. 13. It would be an injustice not to permit a withdrawal of that plea, when, in fact, an entirely different sentence would be imposed than that stated by the court, without objection from the district attorney at the time the plea was accepted. If this case was remanded for imposition of the mandatory sentence, the status of the case still would be at the stage where sentence had not yet been imposed, which would permit a motion to withdraw pursuant to Pa.R.Crim.P. 320. If sentence was imposed forthwith without permitting such a motion, then a motion challenging the guilty plea would be required pursuant to Pa.R.Crim.P. 321. Since these rules were promulgated to provide a record upon which appellate review could be founded, that requirement has been satisfied as the record is absolutely clear in establishing that the plea, upon remand, cannot now be considered to have been voluntary. Since, on appeal, appellee alleges the lack of voluntariness of the plea coupled with an allegation of ineffectiveness of prior counsel, raised at the first opportunity, in failing to present a motion to withdraw the plea in the post-trial proceedings, when it became known that the district attorney was pursuing the higher sentence, we may properly decide that issue.

There are no issues which need to be considered nor any further proceedings necessary by the trial court to bring about a just and proper result. The appellee desires his day in court which would be improperly denied him under any circumstances other than to permit him to withdraw his guilty plea.

JOHNSON, Judge,

dissenting.

I agree with so much of the Majority Opinion as concludes that Orick Alston should have been sentenced as a second offender. Alston’s acceptance into the Accelerated Rehabilitative Disposition (ARD) program after being charged with driving under the influence (DUI) exposes him to sentence as a second offender after a guilt determination on a second DUI charge. Commonwealth v. Becker, 366 Pa.Super. 54, 530 A.2d 888 (1987).

I must dissent from that portion of the Majority Opinion which seeks to review the voluntariness of Alston’s guilty plea. As the Commonwealth points out in their Reply Brief, we have before us the Commonwealth’s appeal from an illegal sentence, not Alston’s appeal from the denial of a motion to withdraw a guilty plea. I do not believe we can reach this issue on this appeal.

If the issue of the voluntariness of Alston’s plea were before us, I would reject his claim for the reasons set forth in the Opinion of Administrative Judge Edward J. Blake, filed February 9, 1989. As Judge Blake correctly observed, the record in this case establishes that Alston did receive notice that the Commonwealth intended to seek the application of the recidivist provision of the Drunk Driving Law prior to sentencing.

Prior to the imposition of sentence on February 18, 1987, the assigned prosecutor specifically requested that Alston be sentenced as a second offender because of the prior A.R.D. matter. N.T. February 18, 1987, pages 5-7. The prosecutor also objected to the 48 hour to one year sentence immediately after it was imposed. Id. at page 9.

On March 2, 1987, Alston filed his Motion to Withdraw Guilty Plea and/or Motion to Vacate, Reconsider, and Modify Sentence. In that motion, Alston did not allege that he was unaware that the mandatory sentence for second offenders applied to him. Rather, the basis for the withdrawal motion was that the plea had not been voluntarily, knowingly and intelligently entered because Alston’s prior attorney did not advise him that his operator’s license would be suspended for a period of one year following his conviction. Motion, paras. 5-6, R.R., page 13a. The motion was denied by the trial court on March 6, 1987. Alston took no appeal from the order denying his motion to withdraw guilty plea.

Based upon my independent review of the record, I agree with Judge Blake that Alston received ample notice of the Commonwealth’s intention to seek application of the recidivist provision of the Drunk Driving Law, 75 Pa.C.S. § 3731(e)(2) prior to the imposition of sentence in this case. Without taking a cross-appeal, Alston may not raise an issue already decided adversely to him. Appeal of Pesante, 82 Pa.Cmwlth. 242, 476 A.2d 474 (1984). Moreover, only those issues included in post-verdict motions will be considered preserved for appellate review. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).

The Commonwealth correctly argues that Alston must initiate appropriate proceedings in the trial court, if he wishes to litigate a basis for withdrawing his plea that has not been previously presented to that court. I join the Majority Opinion in deciding that the judgment of sentence must be vacated. I dissent from that portion of the Majority Opinion which would direct the trial court to allow withdrawal of the guilty plea.

Based upon the certified record before us, this case should be remanded to the trial court for the imposition of the mandatory minimum sentence set forth in 75 Pa.C.S. § 3731(e)(l)(ii).

      . Appellee also contends that his trial counsel was ineffective for not appealing the denial of his motion to withdraw his guilty plea. Because of our disposition of appellee’s first claim, we need not address this issue.


author: BECK, Judge:

text:
    564 A.2d 239
    In re Jaime Lynn RICHIE, a Minor, by Her Parent and Natural Guardian, Lisa Richie BOEHM, Petition for Change of Name. Appeal of Stanley KOPERTOWSKI.
    Superior Court of Pennsylvania.
    Submitted Aug. 15, 1989.
    Filed Sept. 21, 1989.

      Richard L. Gerson, Philadelphia, for appellant.
    Joseph P. Stampone, Philadelphia, appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   BECK, Judge:

Appellant, Stanley Kopertowski, the natural father of Jaime Lynn Richie, appeals an order granting the petition of Jaime Lynn’s mother to change the child’s surname.

Jaime Lynn Richie was born out of wedlock to Stanley Kopertowski and Lisa Richie. The child has always shared her mother’s surname, and has resided with her mother since birth. Appellant contributes to the support of the child and both he and the child’s paternal grandmother have maintained a continuous relationship with Jaime Lynn.

In June of 1986, Lisa Richie married Kevin Boehm, assumed the surname of Boehm, and filed a petition to change the child’s surname to Boehm. In the petition, Lisa Boehm noted that the child would soon be enrolled at a parochial grade school and that she believed it to be in the child’s best interest to share the new surname of her mother. The petition also noted the fact that the child had at no time assumed the surname of her natural father. The trial court found that the name change would be in the best interest of the child and the petition was granted. This appeal followed.

Appellant asserts that the trial court erred in granting the name change petition: (1) in the absence of any supporting testimony or evidence; (2) where it placed the burden of proof upon appellant; and (3) where it disregarded appellant’s legitimate objections to the name change, particularly, that it would interfere with his relationship with the child.

Initially, we note that in granting or refusing a name change petition after due hearing and notice, the court has wide discretion. Matter of Montenegro, 365 Pa.Super. 98, 100, 528 A.2d 1381, 1383 (1987). Our scope of review is limited to the question of whether the evidence is sufficient to support the decision reached by the court. Id.

Appellant contends that the trial court erred in making its decision based upon argument by counsel where appellant had no opportunity to present his testimony and where the court disregarded appellant’s objections to the name change. In support of his position, appellant cites to the notes following 54 Pa.C.S.A. § 101 (Purdon supp. 1989):

(a) Any person desiring to change his or her name shall file a Petition in the court of common pleas in the county in which he or she shall reside, setting forth such desire and intention and the reason therefor, together with the residence of petitioner, and his or her residence or residences for and during five years prior thereto.
(b) At the hearing of said petition, any person having lawful objection to the change of name may appear and be heard.

Appellant omits the next sentence of the note which provides:

If the court be satisfied after said hearing that there is no lawful objection to the granting of the prayer of said petition, a decree may be entered by said court changing the name as prayed for ...

Contrary to appellant’s view, we find no error in the procedure followed by the trial court. A hearing was held, and appellant’s attorney was permitted to present appellant’s argument. We find equally unpersuasive appellant’s assertion that the child’s mother failed to satisfy the burden of showing why a name change was in the child’s best interest.

Much of the caselaw cited by appellant involves facts quite different from those in the instant case. For example, appellant cites Petition of Alexander, 260 Pa.Super. 371, 394 A.2d 597 (1978), in which an ex-convict’s petition for name change was initially denied because of the Commonwealth’s assertion that this would pose a danger to the public. A panel of this Court reversed finding no evidence of record to support the denial. Appellant claims that like the Commonwealth in Alexander, Jaime Lynn’s mother offers no more than a “bald assertion” that the change of name would be in the child’s best interest. In this case, however, we are not dealing with an adult name change but with a petition to change the name of a child. Our balancing test therefore must be at all times focussed upon that child’s interests. As has been recognized, “the child’s best interests unquestionably must control in a proceeding to change a minor child’s surname.” Montenegro, supra, 365 Pa.Super. at 101, 528 A.2d at 1382.

It seems clear to us from the face of the petition alone that the child’s mother offered sufficient support for her position that a name change would be in the child’s best interest. It seems only logical that a child will grow up feeling more part of a family unit when she shares the name of the parent with whom she resides, in this ease, her mother. Appellant appears to completely disregard the impact which denial of this petition might have on the child. He boldly asserts that the mother’s reasons for seeking the name change “have less to do with making Jaime Lynn’s life easier than they do with making [mother’s] life more respectable since Jaime Lynn would then be known to the world by her stepfather’s name and presumed to be his child. This result is not in the child’s best interest since it would be detrimental to her relationship with appellant.” We disagree.

It is easy to understand why a father would object to the name change of a child who shares his surname. A name change in that case could arguably have some effect upon the parent-child relationship, at least to the extent that the child would no longer be held out to the world as the issue of his or her father. In the instant case, the child has had her mother’s name from birth. With her present surname of Richie, Jaime Lynn is no more or less “known to the world” as appellant’s child then she would be with any other surname. To insist that the child retain her current surname under these circumstances would provide no real benefit to appellant, but may well work to the detriment of the child whose mother has assumed a new name.

Appellant claims that the name change would be detrimental to his relationship with Jaime Lynn as it would lead to the presumption that she is the natural child of Kevin Boehm. However, we perceive this argument as one aimed more at the best interest of appellant than that of the child. The child’s mother made clear that the child knows appellant as her natural father. Whether the child retains the name of Richie or assumes the name of Boehm seems of little consequence vis-a-vis the father-child relationship. What is of consequence is how the child will be identified to the outside world, a particularly important factor as Jaime Lynn enters school. Certainly, in this age of ever-shifting family dynamics, there are many children who do not share the surname of a natural parent. However, where a child has the opportunity to share the name of the family with whom she lives, we see no reason to thrust upon the child the burden of explaining why she does not share that name.

For the foregoing reasons, we agree with the conclusion of the trial judge that it would clearly be in the child’s best interest to share the surname of her mother.

Affirmed.


text:
    564 A.2d 241
    Robert MOSIER, Appellant, v. Carol McCAUGHTRY, Appellee.
    Superior Court of Pennsylvania.
    Submitted May 22, 1989.
    Filed Sept. 20, 1989.

      John F. Spataro, Asst. Dist. Atty., Meadville, for Mosier, appellant.

      Joan D. Mason, Meadville, for appellee.
    Before DEL SOLE, KELLY and MONTGOMERY, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order vacating an order requiring the payment of arrearages in the child support owed by Carol McCaughtry, Appellee, to Robert Mosier, Appellant. We find that the trial court erred in vacating the order concerning the arrearages and remand for a new hearing.

Mosier and McCaughtry were married and then separated. The couple had one child during that marriage, Karin. Initially, Mosier was awarded primary custody of Karin. A consent agreement was entered into and McCaughtry agreed to pay Mosier $30.00 a week for child support. Later, McCaughtry received an order from the trial court which allowed for the accumulation of arrearages at the rate of $30.00 per week while she attended graduate school. The intention of the parties was to have McCaughtry pay off the arrearages at the rate of $15.00 per week once her studies ended. The total accumulation of arrearages is $3000.00.

Two years later, McCaughtry received primary custody of Karin. McCaughtry filed a petition for support against Mosier. The trial court ordered both parties to each pay 50% of Karin’s uninsured medical, dental, prescription and optometric expenses. Payment of any of these expenses was conditioned on the approval of both parties. Mosier was also ordered to pay McCaughtry $50.00 per week for child support. Mosier paid the support as ordered. McCaughtry never paid the arrearages of $3000.00 to Mosier despite the fact that she finished her graduate studies and is now making $42,000.00 a year.

This appeal stems from McCaughtry’s most recent petition to modify. McCaughtry stated that because she had paid Karin’s parochial school tuition and intended to pay Karin’s psychiatric bills, those expenses should completely offset her obligation to repay the arrearages to Mosier. The hearing officer found that those expenses were of no relevance to the arrearages. Later, a judgment was entered against McCaughtry in the amount of $3000.00. (In another petition to modify filed at the same time by McCaughtry, the hearing officer held that private school should be paid for by the parent putting the child into the school and that counselling expenses should be divided equally between the parents.) McCaughtry filed a request for a hearing before the trial court. One year later, after granting a continuance to McCaughtry, the trial court held a de novo hearing which included testimony from both parties.

The trial court ruled McCaughtry’s expenses for tuition and psychiatric bills for Karin offset the arrearages owed to Mosier. The court ordered the arrearages to be vacated and removed from the record. It then declared the case to be terminated. Mosier raises five issues on appeal. We reach only the first two and vacate the order and remand this case back to the trial court.

Mosier’s first two issues are that the trial court did not have jurisdiction to vacate the arrearages and that it abused its discretion when it did so. The applicable statute, 23 Pa.C.S.A. § 4352 reads:

(a) General Rule — The court making an order of support shall at all times maintain jurisdiction of the matter for the purpose of enforcement of the order and for the purpose of increasing, decreasing, modifying or rescinding the order without limiting the right of the obligee to institute additional proceedings for support in any county in which the obligor resides or in which property of the obligor is situated.
(d) Retroactive modification of arrears — No court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there is pending a petition for modification. If a petition for modification was filed, modification may be applied to the period beginning on the date that notice of such petition was given, either directly or through the appropriate agent, to the obligee or, where the obligee was the petitioner, to the obligor.
(As amended, effective March 25, 1988).

Read together, these sections mean that a court which makes a support order shall retain jurisdiction at all times for the purpose of modifying that order. But a court shall not have jurisdiction to modify arrearages which have accumulated prior to the filing of the petition to modify. In the present case, the trial court did not have jurisdiction to modify the arrearages which McCaughtry accumulated prior to the filing of her most recent petition to modify.

This does not mean, however, that the trial court lacks jurisdiction to offset the $3000.00 that McCaughtry owes to Mosier by another method. It simply means that the trial court cannot modify the arrearages which were owed by McCaughtry long before she filed her petition to modify. The statute quoted above includes the recent amendments made by the General Assembly in this area of the law. This court has found the new law to be both strict and stringent in dealing with arrears and their modifiability. Haley v. Haley, 379 Pa.Super. 323, 549 A.2d 1316 (1988). Our reading of the statute today is in line with the General Assembly’s intention of making arrears more difficult to vacate or modify.

However, the trial court continues to retain jurisdiction over the parties in this case. When reviewing support cases, if a support order is supported by competent evidence, this court will not reverse the order absent an abuse of discretion by the trial court. Fitchorn v. Fitchorn, 368 Pa.Super. 305, 533 A.2d 1388 (1987). Such abuse exists where there is insufficient evidence to sustain the award or order. Shutter v. Reilly, 372 Pa.Super. 251, 539 A.2d 424 (1988).

In the present case, we find that the evidence admitted by the trial court during the hearing was insufficient to sustain the discharge of the arrearages by affecting McCaughtry’s expenditures. The trial court heard testimony concerning the amount McCaughtry paid for Karin’s extra expenses. There were no bills or receipts entered into evidence to support her statements. If such expenses are to be used to offset the McCaughtry’s payment of arrearages, then it must be shown that such expenses existed and that Mosier was responsible for a portion of them. The parents’ agreement to divide equally Karin’s uninsured medical expenses was conditioned upon the approval of the expenses by both parents. Mosier testified at the hearing that he disapproved of putting Karin in a parochial school. He also testified that he did not know she was receiving psychiatric care until he began to be billed for the care.

On remand, the trial court must hear evidence regarding Mosier’s duty, if any, to contribute to his daughter’s parochial school and psychiatric expenses. The court may then decide that Mosier should pay his share of these expenses to McCaughtry while McCaughtry pays him the accumulated arrearages. Or the trial court may decide that these payments should offset each other. Whatever the trial court decides, it must first conduct a full evidentiary hearing before it determines what should be paid and what should be offset.

Order vacated and remanded. Jurisdiction relinquished.

      . Exceptions to this general rule can be found in second part of 23 Pa.C.S.A. § 4352(d) which reads:
      However, modification may be applied to an earlier period if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition. In the case of an emancipated child, arrears shall not accrue from and after the date of the emancipation of the child for whose support the payment is made.
      None of these exceptions are applicable to the present case.


text:
    564 A.2d 244
    Robert P. LEYDA and Harriet J. Leyda, His Wife, Appellants, v. Joseph NORELLI, an Individual, Appellee.
    Superior Court of Pennsylvania.
    Argued June 8, 1989.
    Filed Sept. 18, 1989.

      J. Kerrington Lewis, Pittsburgh, for appellants.
    Vincent DeFalice, Pittsburgh, for appellee.
    Before CAVANAUGH, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

This is an appeal from an order granting Appellee/Defendant’s motion for judgment on the pleadings and dismissing Appellants' suit for damages incurred as a result of an automobile accident.

The basis for the trial court’s decision is a release signed by Appellants, Robert P. Leyda, and his wife, Harriet J. Leyda, which released Appellee, Joseph Norelli from any future claims in return for a sum of forty-five hundred dollars ($4500.00). Appellants claim, (1) the release was ineffective because it was not notarized as required by the agreement, and (2), there was a mutual mistake which vitiated the agreement between the parties. We will discuss the issues in reverse order.

Appellants allege in their complaint that at time the release was signed both parties were under the mistaken impression that Mr. Leyda had suffered only minor injuries as a result of the car accident. Therefore, the payment at that time was a fair and equitable payment for injuries suffered. Appellants further allege that subsequently Mr. Leyda discovered that he also suffered severe injury and damage to the spine, neck and the spinal discs, causing several operations and disc removals, severe injury to his shoulders and limbs, severe injury to his nervous system including spinal cord impingement and decomposition of the spine, paralysis, and complete and total disability. They state that these severe injuries were caused by Mr. Norelli’s negligent operation of his auto.

Appellants argue that such unknown injuries which resulted were not within the contemplation of the parties when the release was executed. Therefore, the release should be set aside on the basis of mutual mistake.

Although it is clearly established that fraud and mistake are bases for setting aside a settlement agreement or release, Greentree Cinemas, Inc. v. Hakim, 289 Pa.Super. 39, 432 A.2d 1039 (1981), it is also established that underestimating damages or making a settlement before damages are accurately ascertained is not considered a mutual mistake of fact. Emery v. Mackiewicz, 429 Pa. 322, 240 A.2d 68 (1968); Bollinger v. Randall, 184 Pa.Super. 644, 135 A.2d 802 (1957).

Here Appellants released Mr. Norelli from all claims arising from all “known and unknown, foreseen and unforeseen bodily and personal injuries,, loss and damage to property.” A misjudgment as to the precise nature and extent of injury will not permit rescission of a release agreement which contains the broad language present in this case. See also, Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989).

Next, Appellants contend that the release agreement form supplied by Appellee was incomplete and therefore ineffective. The form provides that a Notary Public explain the “nature and legal effect” of the release and notarize the document. However, the form was never notarized, although Appellants signed the document and subsequently received a check for forty-five hundred dollars ($4,500).

The trial court held that failure to notarize the release agreement did not render the release invalid. The Leydas signed the agreement which was witnessed by a single witness and which affirmed that “we have carefully read the foregoing release and know the contents thereof, and we sign the same as our own free acts”. It is the role of the court to decide whether the language of the contract is ambiguous, and there is no ambiguity in the general release signed by Appellants. Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986). Therefore the notarization was unnecessary.

Furthermore, notarization certifies the fact of execution by a person who purports to be the signer but not any fact beyond that. Commonwealth v. Frey, 258 Pa.Super. 288, 392 A.2d 798 (1978). Therefore, the provision in the agreement requiring the notary to explain the release, and certify that the signers understand its contents is invalid. All that a notary may do is certify that the document is executed, and that the notary know that he or she is confronted by the signer, and the signer is asserting the fact of execution. In Re Bokey’s Estate, 412 Pa. 244, 194 A.2d 194, 198 (1963). Had this document been notarized, all that would have been certified was that the document was executed by the signers.

Finally, Appellants argue that because the release was not notarized, it was not executed in accordance with the terms of the agreement between Appellants and Appellee. We disagree.

At the bottom of the page the release states, “If this release is acknowledged before a Notary Public, no witnesses’ signatures are necessary.” This conditional statement necessarily implies that notarization is not required under this agreement, and is not a condition precedent to its validity. Thus, by the terms of the agreement itself notarization is not necessary.

We affirm the order of the trial court granting Appellee’s motion for judgment on the pleadings.