author: FORD ELLIOTT, Judge:

text:
    619 A.2d 311
    COMMONWEALTH of Pennsylvania, Appellant, v. Ernest GOLDSMITH.
    Superior Court of Pennsylvania.
    Argued July 29, 1992.
    Filed Jan. 11, 1993.
    Petition for Allowance of Appeal Denied May 14, 1993.

      Norman Gross, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    James A. Lammendola, Philadelphia, for appellee.
    Before MONTEMURO, FORD ELLIOTT and CERCONE, JJ.
   FORD ELLIOTT, Judge:

The Commonwealth brings the instant appeal following the suppression of a statement given by appellee. The suppression was obtained pursuant to a violation of Pennsylvania’s six-hour arraignment rule.

The underlying factual situation is fairly simple and is generally uncontested by the parties. At approximately noon on April 20, 1991, Philadelphia police responded to a call summoning help to an apartment house at 4840 Oxford Avenue in northeast Philadelphia. At the apartment house, the police discovered a stabbing victim, Michael Jones, lying in a hallway with a wound to his chest. Jones showed no vital signs and was eventually pronounced dead. Police also encountered appellee, whose shirt was blood spattered and ripped. Appellee refused to respond to police questioning.

Another resident of the apartment building, Raleine Colbourne, told police that she, appellee, and the victim all lived together and that appellee and the victim had been fighting earlier in the day.

Appellee was arrested at 12:25 p.m. He arrived at the Police Administration Building at 1:50 p.m. and was placed in an interview room by 2:00 p.m. After taking biographical information, police gave appellee his Miranda rights. At 3:15 p.m. police began taking a formal, written statement from appellee, concluding at 6:00 p.m. At approximately 7:00 p.m., after obtaining a search warrant, police took blood samples from appellee’s shirt and hands and confiscated the shirt.

Shortly after 7:00 p.m., appellee volunteered to police that his prior statement had been false and that he now wished to make an accurate one. Before taking this statement, the police had appellee sign a form containing the following language:

REQUEST TO EXTEND INTERROGATION TIME
I HAVE BEEN ADVISED OF MY RIGHTS BY, DETECTIVE SANTIAGO, OF THE HOMICIDE DIVISION. I HAVE ALSO BEEN INFORMED BY DETECTIVE FISCHER AND DET SANTIAGO THAT AFTER I HAVE BEEN IN POLICE CUSTODY FOR SIX (6) HOURS, I DO NOT HAVE TO TALK WITH THE POLICE AND THAT EVERYTHING THAT I TELL THEM AFTER THIS SIX (6) HOURS CAN NOT BE USED AGAINST ME IN COURT, UNLESS I WAIVE MY RIGHTS AND WISH TO CONTINUE TALKING TO POLICE.
I HAVE READ THE ABOVE INFORMATION THAT DETECTIVE FISCHER AND DET. SANTIAGO, OF THE HOMICIDE DIVISION TOLD ME AND EVEN WITH WHAT I RECEIVED ABOVE, I WANT TO CONTINUE TO TALK WITH THE POLICE AND TELL THEM WHAT I KNOW. ALSO THAT ANYTHING THAT I KNOW AND THAT I SAY CAN AND WILL BE USED AGAINST ME IN COURT.

Appellee was read his Miranda rights again and proceeded with his second statement, initiating at 7:20 p.m. and finishing at 8:35 p.m. In this second statement, appellee inculpated himself in the murder of Michael Jones. Finally, at 8:48 p.m., appellee was arraigned.

At an ensuing suppression hearing, the court ruled that appellee’s statement was subject to suppression as the Commonwealth had failed to arraign appellee within six hours of arrest in violation of the six-hour arraignment rule and that appellee’s waiver of his rights under the rule was invalid. For the reasons which follow, we agree with the suppression court and will affirm its order of December 23, 1991, granting appellee’s motion to suppress.

In its appeal of the suppression court’s order, the Commonwealth poses three questions:

1. Did the lower court erroneously suppress defendant’s fully voluntary, Mirandized confession to murder, on the grounds that a suspect may not waive his rights under the Duncan/Davenport six-hour rule under any circumstances?
2. Did the lower court erroneously suppress defendant’s voluntary, Mirandized confession to murder, on the alternative ground that a suspect may never waive his rights under the six-hour rule after the six-hour period has expired, where defendant demanded to speak to police shortly after the six-hour period had expired and then expressly waived his rights under the six-hour rule before confessing?
3. Did the lower court erroneously suppress defendant’s voluntary, Mirandized confession to murder, on the alternative ground that defendant’s waiver of rights was invalid because of a purported defect in the written waiver form, where the form accurately explained defendant’s rights under the six-hour rule in plain and simple terms, defendant manifested every objective intention to waive his rights under the rule, and defendant never advised police nor testified at the suppression hearing that he did not understand the rule or the consequences of the waiver?

Commonwealth brief at 3. We now turn to our analysis of these issues.

We begin with our standard of review:

... where the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted....

Commonwealth v. Robinson, 518 Pa. 156, 159, 541 A.2d 1387, 1389 (1988), quoting Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). The statement in question was suppressed pursuant to the six-hour arraignment rule imposed by our decisional law. Simply put, that rule, as currently interpreted, mandates that where the authorities fail to arraign an arrestee within six hours of arrest, then any statements made by the defendant after that six-hour period has expired must be suppressed. Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987).

The ancestry of the six-hour arraignment rule is commonly traced to Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). In Futch, our supreme court ruled that evidence obtained during an unnecessary delay between arrest and preliminary arraignment is inadmissible at trial if the obtaining of the evidence is causally related to the delay. This rule further evolved in Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974), which set out a three part test: 1) the delay must be unnecessary; 2) evidence that is prejudicial must be obtained; and 3) the incriminating evidence must be reasonably related to the delay.

The six-hour prophylactic rule was formulated by the supreme court in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). In Davenport, the court applied the three-part Williams test and ruled that the statement of the defendant therein should be suppressed. However, apparently in recognition of the difficulty in applying the still somewhat vague benchmarks of Williams, the court chose the Davenport opportunity to announce an easy to apply litmus test:

In light of our experience since Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), we conclude that, pursuant to our supervisory power, we should adopt a rule under which the admissibility of any statement taken while the accused is in custody before preliminary arraignment is based on the length of the delay between arrest and arraignment. If the accused is not arraigned within six hours of arrest, any statement obtained after arrest but before arraignment shall not be admissible at trial....
This rule will assure more certain and even-handed application of the prompt arraignment requirement, and will provide even greater guidance to trial courts, the bar and law enforcement authorities. Such a rule will simplify the task of determining the admissibility of statements taken before arraignment and thereby further judicial economy.

Davenport, 370 A.2d at 306.

The most recent pronouncement of our supreme court on the six-hour rule is Commonwealth v. Duncan, supra. In Duncan, the supreme court was asked to reassess the sometimes harsh effects of Davenport in a situation where the defendant, although not arraigned for eight hours after arrest, made the suppressed incriminating statement minutes after being taken into custody. The supreme court reversed the trial court and, while reaffirming the need and import of the six-hour rule, mitigated its effect to the extent that only statements made after six hours have passed are subject to suppression.

We are now faced with the question of whether the six-hour arraignment rule may be waived under the circumstances of this case.2 We hold that once six hours have passed from the time of arrest and no arraignment has yet taken place, the six-hour arraignment rule may not be waived.

Initially, the Commonwealth would argue that the six-hour rule has no constitutional basis and that the trial court has unjustifiably elevated it to such a status:

The lower court’s analysis has elevated the judicially created, prophylactic six-hour rule, with its necessarily arbitrary standard, to a status never intended by the Supreme Court. By the lower court’s reasoning, the six-hour rule is more exalted than a defendant’s constitutional rights to remain silent or to the presence of counsel during custodial police interrogation, because unlike those constitutional rights, the six-hour rule can never be waived.
The lower court’s decision stands the hierarchy between constitutional and non-constitutional rights on its head.

Commonwealth’s brief at 14-15.

However, it is our opinion that the six-hour arraignment rule does, indeed, serve constitutional ends. As both Davenport and Duncan have informed us, the six-hour arraignment rule is intended to serve two purposes. First, the rule promotes prompt arraignment. Pa.R.Crim.P. 140 delineates the several function's of a preliminary arraignment:

(a) At the preliminary arraignment, the issuing authority shall not question the defendant respecting the offense charged, but shall forthwith deliver a copy of the complaint to him. The issuing authority shall also inform the defendant:
(1) of his right to secure counsel of his choice and his right to assigned counsel in accordance with Rule 316;
(2) of his right to have a preliminary hearing; and
(3) if the offense is bailable, of the amount of bail demanded and the types acceptable as provided in these rules.
(b) If the defendant desires to post bail, secure counsel or notify others of his arrest, he shall be held but not be committed to jail until he has been given immediate and reasonable opportunity to do so.
(c) If bail is set, the issuing authority shall accept bail at any time prior to the return of the transcript to the court....

Pa.R.Crim.P. 140. These functions of the preliminary arraignment clearly serve constitutional ends. As was stated in Davenport and quoted in Duncan:

In Davenport,, we stated that the purpose of the prompt arraignment requirement is to insure that the accused is promptly afforded the full panoply of rights and protections guaranteed by our Constitution as embodied in Pa. R.Crim.P. HO.
Rule 140 provides that the court shall inform the accused of the charges against him, his right to counsel, his right to bail and his right to a preliminary hearing. Thus, the requirement of a prompt arraignment serves to protect the accused’s right to know ‘the nature and cause of the accusation against him,’ Pa. Const, art. I, § 9, his right to counsel, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); U.S. Const. Amends. VI, XIV; Pa. Const, art. I, § 9, and his right to reasonable bail. Pa. Const, art. I, § 14. It also protects the accused’s right to be free from unreasonable seizure of his person. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); U.S. Const, amends. IV, XIV; Pa. Const, art. I, § 8.

Duncan, 525 A.2d at 1181 (emphasis added), quoting, in part, Davenport.

Second, the six-hour arraignment rule recognizes the inherently coercive nature of prolonged custodial police interrogation. In this regard, it affords protection similar to Miranda, in that the constitutional right not to be compelled to give evidence against oneself is served. U.S. Constitution, amendment V, Pennsylvania Constitution, article I, § 9.

This two-fold purpose of the rule is set out in Duncan as follows:

A primary evil which prompted the development of the exclusionary rule was a recognition of the coercive environment that can be established by protracted custodial questioning. However, ‘[t]his rule was adopted not simply to guard against the coercive influence of custodial interrogation, but to ensure that the rights to which an accused is entitled at preliminary arraignment are afforded without unnecessary delay.’

Duncan, 525 A.2d at 1181, quoting, in part, Davenport. Clearly, the Commonwealth cannot successfully assert that the underpinnings of the six-hour arraignment rule are not constitutional in scope.

The Commonwealth would argue in the alternative that the case law surrounding waivers of fifth and sixth amendment rights should apply within this context. However, even if we were to find that waiver is possible, we are compelled to find that the six-hour arraignment rule cannot be waived under the circumstances of this case: where the waiver was executed more than six hours after arrest or where the purported waiver is inadequate to inform appellant of the rights which he foregoes.

Typically, valid waivers of rights must be voluntary, knowing, and intelligent. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Instantly, we find the standards of voluntariness and knowingness to be unmet. Moreover, we believe.that once six hours have elapsed from the time of arrest, a waiver can never pass voluntariness muster.

The six-hour arraignment rule, in part, recognizes the inherently coercive nature of prolonged custodial questioning by the police. When our supreme court adopted the arbitrary six-hour time limit, it effectively ruled that, at six hours, the coercive quality of police custody has endured so long that we must now regard it as having had the feared effect, that the accused has, indeed, been coerced, and that any utterance of the accused must also now be viewed as having been involuntary. In effect, the supreme court ruled that any statement of the accused given six hours past arrest is involuntary per se. Therefore, any waiver of the six-hour arraignment rule given more than six hours beyond arrest is involuntary per se and is invalid. The Commonwealth points to the spontaneous and unsolicited “volunteering” of appellee’s statement approximately six and one-half hours after his arrest. However, the supreme court has not, as yet, permitted an inquiry into the non-coercive nature of the statement once the six-hour rule has been violated.

Furthermore, given the language of the form waiver employed instantly, we cannot say that appellee’s waiver was knowing. The form employed does not begin to inform appellee of his right to be promptly arraigned. The waiver failed to advise appellee of the nature of the charges against him. It failed to alert him to his right to secure or be assigned counsel. It failed to alert him of his right to a preliminary hearing or to his right to bail. In short, the “waiver” form executed by appellee merely informed him that he did not have to make any statement after six hours in custody and that any such statement could not be used against him without his waiver. However, nowhere is appellant apprised about why this is so.

For these reasons we find that the six-hour arraignment rule may not be waived after the passage of six hours from the time of arrest. Moreover, the waiver form employed instantly was inadequate.

Lastly, we note that counsel for appellee has petitioned the court to be permitted to withdraw as counsel and to be permitted to file a petition for attorney’s fees. The Commonwealth has opposed this petition to withdraw. We believe counsel for appellee states a valid reason for withdrawal. Appellee filed a complaint against counsel with our supreme court’s Disciplinary Board. It is difficult to envision counsel being able to continue providing effective assistance following this obvious breakdown in the attorney-client relationship. Moreover, the basis for the Commonwealth’s concern in this regard appears to be a desire to see the current appeal resolved prior to withdrawal in order that the matter need not be rebriefed and reargued. Since we have now resolved the instant issues on their merits, we see no reason not to grant the motion for permission to withdraw.

Accordingly, the order of the suppression court entered December 23, 1991, is hereby affirmed. Petition for James A. Lammendola to withdraw as counsel for appellee is hereby granted. Petition for permission to file an attorney fee petition is granted. Counsel’s request to dismiss the Commonwealth’s Opposition to the Petition to Withdraw as Counsel is denied as moot. Jurisdiction relinquished.

This decision was reached after the appointment of Justice Montemuro to the supreme court.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Typically, the defendant is told that he has the right to remain silent, that anything he says can and will be used against him in court, that he has the right to an attorney, and that if he cannot afford one, an attorney will be appointed for him.

      . Appellee also indicated in this statement that he had drunk at least a pint of vodka that day prior to his arrest. The police testified consistently that appellee showed no signs of intoxication.

      . The Commonwealth's first issue listed under its Statement of the Questions Involved addresses whether the six-hour rule can ever be waived. However, we will limit our review to the factual setting presented; that is, where the waiver has been signed after six hours have elapsed.

      . This word has an unfortunately pejorative sense and is somewhat inaccurate, as a glance at footnote 7 in Davenport will attest. See Davenport, 370 A.2d at 306, n. 7.’


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    619 A.2d 316
    COMMONWEALTH of Pennsylvania v. Daniel CUMMINGS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1992.
    Filed Jan. 12, 1993.

      Daniel Cummings, appellant, pro se.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, TAMILIA and HESTER, JJ.
   HESTER, Judge:

Daniel Cummings appeals from the August 29, 1990 order denying him relief under the provisions of the Post-Conviction Relief Act. We conclude that the claim raised in appellant’s second post-conviction petition may be entertained under the PCRA and under the standards announced in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988). However, we affirm denial of PCRA relief.

On June 4, 1974, appellant was convicted by a jury of first-degree murder in connection with the shooting death of Alvin Singleton. The Supreme Court affirmed on direct appeal, Commonwealth v. Cummings, 466 Pa. 332, 334, 353 A.2d 381, 382 (1976), and described the murder as follows, “On August 23, 1972, appellant entered the residence of Alvin Singleton at 205 Kater Street, Philadelphia, and shot Singleton. The reason given by appellant [during his confession and at trial] for the shooting was the alleged rape of appellant’s wife by the decedent and the decision of the police not to pursue the rape investigation.”

On July 13, 1981, appellant filed a post-conviction relief petition, in which he alleged that trial counsel had been ineffective in various respects. PCHA relief was denied. On May 25, 1990, appellant filed a second petition for post-conviction relief, which was governed by the provisions of the PCRA. This petition was denied on August 29, 1990; appellant failed to file an appeal from denial of that decision. On July 8, 1992, appellant was granted the right to appeal nunc pro tunc from the August 29, 1990 order denying him PCRA relief. This appeal followed.

Appellant contends that in light of his confession to the murder, trial counsel rendered ineffective assistance when he failed to procure a psychiatric examination that may have established either that he was incompetent to stand trial or that he was innocent by reason of insanity.

This is appellant’s second PCRA petition. Applying the Supreme Court’s pronouncement in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), we have addressed serial petitions under the PCRA in Commonwealth v. Ryan, 394 Pa.Super. 373, 376, 575 A.2d 949, 950-51 (1990), stating:

Initially, we note that since this is appellant’s second petition for post-conviction relief, it “will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Commonwealth v. Lawson, 519 Pa. 504, 513, 549 A.2d 107, 112 (1988); see also Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989) (applying Laivson standard of review to second or subsequent petitions filed under the PCRA). This standard is met if the petitioner can demonstrate either that the proceedings resulting in his conviction were so unfair that a miscarriage of justice which no civilized society can tolerate occurred or that he is innocent of the criminal charges.

(Emphasis added).

Concurrent with our analysis pursuant to Lawson, we must address appellant’s eligibility for relief under the provisions of the Post-Conviction Relief Act. 42 Pa.C.S. § 9543 controls appellant’s eligibility for relief under the PCRA and lists four factors which must be met before such relief may be granted. One of those factors is that the allegation of error must not be waived 42 Pa.C.S. § 9543(a)(3)®. An allegation of error is waived if it could have been raised during a previous post-conviction proceeding. 42 Pa.C.S. § 9544. Since appellant could have raised both these allegations in his prior PCHA petition, they are waived.

There are two exceptions to the waiver provision, 42 Pa.C.S. §§ 9543(a)(3)(ii) and (iii). Section 9543(a)(3)(iii) does not apply herein because this is appellant’s second petition for post-conviction relief. See Commonwealth v. Ryan, supra, 394 Pa.Super. at 378, 575 A.2d at 951, wherein we stated:

In the present case, appellant could have raised all of the issues presented herein in his prior PCHA petition. Accordingly, the issues have been waived under section 9544. The waiver in this instance results from appellant’s failure to raise the issues in his prior post-conviction proceedings. Since the waiver was not during pretrial, trial, post-trial or direct appeal proceedings, section 9543(a)(3)(iii) is not applicable. Accordingly, appellant has waived the issues presented herein unless 9543(a)(3)(ii) applies.

42 Pa.C.S. § 9543(a)(3)(h) provides that an allegation of error is not waived if “the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.” Appellant’s claim that trial counsel was ineffective for failing to raise the defense that he was insane at the time of the shooting alleges, on its face, that appellant was innocent of the crime since he lacked the mens rea necessary for imposition of criminal culpability. Thus, appellant has overcome the bar of waiver pursuant to 42 Pa.C.S. § 9543(a)(3)(ii) and also facially has met the standards of Lawson so that we may entertain the merits of his claim. Commonwealth v. Dukeman, 413 Pa.Super. 397, 605 A.2d 418 (1992) (allegations that may establish innocence of defendant may be entertained under Lawson and overcome waiver under the PCRA pursuant to 42 Pa.C.S. § 9543(a)(3)(h)).

We now address the merits of appellant’s claim that trial counsel was ineffective for failing to assert an insanity defense.

Claims of ineffectiveness of counsel are subject to a three part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his or her client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. Commonwealth v. Tavares, 382 Pa.Super. 317, 321, 555 A.2d 199, 201 (1989).... The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1989). Moreover, counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421 (1989).

Commonwealth v. Mescall, 405 Pa.Super. 326, 330, 592 A.2d 687, 689 (1991).

In the present case, it is apparent that counsel’s strategy at trial was to seek either acquittal or a conviction on a lesser murder charge on the grounds of provocation. Appellant’s confession supported such a defense in that he said that he shot the victim because the victim raped his wife. Thus, this strategy hardly could be deemed unreasonable. As there was an obvious, reasonable grounds for trial counsel’s decision to defend on the basis of provocation rather than insanity, appellant’s claim of ineffectiveness fails. See Commonwealth v. Savage, 529 Pa. 108, 602 A.2d 309 (1992) (where strategy of trial counsel was reasonable designed to advance defendant’s interest, the fact that the strategy was not successful does not mean it was unreasonable); Commonwealth v. Mickens, 409 Pa.Super. 266, 597 A.2d 1196 (1991) (in order for strategic decision to be grounds for successful ineffectiveness claim, decision must be so unreasonable that no competent lawyer would have chosen it); see also Commonwealth v. Garcia, 370 Pa.Super. 132, 535 A.2d 1186 (1988) (when counsel’s strategy is to seek acquittal rather than conviction on lesser-included offense, he is not ineffective).

Order affirmed.


author: OLSZEWSKI, Judge.

text:
    619 A.2d 319
    J. Mark KREIDER and Theresa L. Kreider, Ind. and as H/W and on Behalf of Minor Son, Kenneth Mark Kreider v. Burton L. WELLENBACH, M.D., David Goodner, M.D., Estate of Leon A. Peris, M.D., Benjamin Kendall, M.D., Sandra M. Wolf, M.D., Joseph Z. Grover, M.D., Ind. and Wellenbach, Peris, Kendall, Goodner & Grover, P.C. Appeal of: David GOODNER, M.D., Estate of Leon A. Peris, M.D., Benjamin Kendall, M.D., and Sandra M. Wolf, M.D.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1992.
    Filed Jan. 13, 1993.

      Donald N. Camhi, Philadelphia, for appellants.
    Daniel L. Thistle, Philadelphia, for appellees.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge.

This is an appeal from the Honorable Lawrence Prattis’ order denying defendants’ motion for post-trial relief. After a lengthy medical malpractice trial, the judge ordered a new trial on the ground that the jury could not reach a unanimous verdict concerning defendants’ negligence. The defendants argue on appeal that the judge should have molded the jury verdict to conform to the jurors’ expressed intentions. We find that the jury never rendered a verdict. There being no verdict, there was no verdict to mold. We therefore affirm.

Mrs. Kreider, a named plaintiff, suffers from lupus, a serious medical condition. After she became pregnant, her family doctor advised her that the condition, although in remission, might cause complications in the pregnancy. She sought defendants’ treatment. The defendants are members of a medical group which specializes in complicated pregnancies. Defendants treated Mrs. Kreider regularly; all tests and examinations indicated that the pregnancy was progressing without complications. When Mrs. Kreider went into labor, however, she began to suffer. The doctors performed a cesarean section to deliver the child. Mrs. Kreider’s child was born with deformities and unfortunately died within twenty-four hours.

The Kreiders instituted this lawsuit against the doctors asserting that they were negligent in rendering the pre-natal care. The case went to trial before Judge Prattis and a jury. The jury’s task was to determine whether the doctors were negligent. Specifically, the jury had to decide: 1) whether the doctors provided pre-natal care that conformed to the standard of care exercised by other specialists in the same medical community, and 2) if they did not, whether their treatment was the legal cause, or a “substantial factor” in causing plaintiffs’ injuries. After each side presented its case, the judge submitted a list of special interrogatories to the jury. The interrogatories provided:

VERDICT SLIP
1— Was there negligence on the part of any one of the defendant doctors?
[ ] Yes
[ ] No
2— If your answer to question 1 is “yes,” was that negligence a substantial factor in causing harm to the plaintiffs?
[ ] Yes
[ ] No

Exhibit C-6, dated 9/24/91.

After the jury began deliberating, the foreperson submitted two written questions to the judge. These questions asked whether the jury had to attain seven “yes” votes to determine that the doctors were negligent and whether the jury had to attain seven “no” votes to determine that the doctors were not negligent. The Court responded in the affirmative to each question. After the jury informed the judge that it was at an impasse regarding whether the doctors were negligent, the judge asked the jurors to “think about it overnight,” and continue deliberations the next morning. N.T. 9/23/91, p. 166.

The next morning, the jury returned the verdict slip. The following discussion between the court and counsel for both parties ensued:

The Court: Counsel, I have the jury’s verdict slip. It says as follows: “First question, was there negligence on the part of the defendant doctors. Three say yes. Five say no.
Question number two, if your answer to question number one was yes was that negligence a substantial factor in causing the harm to the plaintiff? One says yes, seven say no. What do you want to do? It’s not a verdict.
Mr. Cahmi [defense counsel]: Oh, Judge.
The Court: Question two is really not to be arrived at until they arrive at a seven to one vote on question number one. At most this is a mistrial.
Mr. Cahmi: I will respectfully disagree and tell you why. Let’s assume that we have a hung jury on question number one. You were to declare a mistrial. We know that in order for the plaintiff to succeed in this case they must get seven to say yes to question number two. It’s obvious that they haven’t done it and this is as good as any verdict as we can get.
The Court: Because in the process of discussing question number one and arriving at a verdict on question number one they could change their mind.
Mr. Cahmi: They’ve already discussed it and they’ve come to a conclusion on substantial factor and there was none.

N.T. 9/24/91, pp. 3-4.

Defense counsel argued strenuously that the jury had reached a final verdict. Plaintiffs’ counsel argued that the jury was required to answer the questions as asked. Since there was not a unanimous answer to the first question, it was improper for the jury to consider question number two. The trial judge, concerned that the jury reach a unanimous decision on both questions, instructed the jury as follows:

The Court: I gather there has been no change in the respective positions of the parties since yesterday afternoon?
Foreperson: That’s right, your Honor.
The Court: Would it help you in reaching a decision because this is not a decision on question number one. It has to be seven to one one way or the other. You have the time. If further discussion of the exhibits and the testimony would be helpful, I am certainly willing to allow that. It is always preferable to have agreement on both questions. Would such further time be helpful? What’s the sense of the group on that? I don’t want to know who is voting which way. I want to know what the foreperson thinks. Foreperson: I think that our positions are pretty set on the first question.
The Court: If I sent you to lunch. It’s now 12:00 just about and let you come back at say 2:00 and then determine whether there is any possibility of your discussing and coming to further agreement on question one, would that be helpful?
Foreperson: Yes.

N.T. 9/24/91, pp. 11-13.

The jurors deliberated for about an hour. They returned the verdict slip which indicated that they had reached an impasse on both questions. The foreperson and all members of the jury stated orally that the impasse would not be resolved, regardless of how much longer they deliberated. Id. at 22-25. The verdict slip and jury poll indicated that the final vote on each question was six to two. The trial judge noted the impasse and upon motion by plaintiffs’ counsel granted a new trial. The defendants filed a motion for post-trial relief which was denied. This appeal followed.

Fortunately, the resolution of this intricate symphony is not nearly so long as its crescendo. Defendants argue that the trial judge should have molded the jury’s verdict to effectuate the jury’s intent. The jury’s intent, defendants argue, is clear because the first jury verdict indicated that there was a seven to one vote regarding causation. Thus, a jury’s decision on the question of whether the doctors were negligent is moot because the jury decided that in any event, the doctors’ conduct did not cause the plaintiffs harm. While this argument has allure, we cannot agree.

Defendants’ argument that the trial judge should have molded the verdict begs the question of whether the jury ever reached a verdict. Indeed, if the jury never reaches a verdict, there is nothing for the trial court to mold. Oblon v. Ludlow-Fourth Corp., 406 Pa.Super. 591, 595 A.2d 62 (1991), alloc. granted, 602 A.2d 560 (1992); Bowie v. Shelton, 214 Pa.Super. 107, 251 A.2d 667 (1969). We find that the jury in this case never rendered a verdict.

We have recently affirmed the proposition that when five-sixths of the members of a jury cannot agree, no verdict has been reached:

It has long been the rule in Pennsylvania that the only verdict is that announced by the jury and if at that time any juror disagrees, with or without poll, before the verdict is recorded, then there is no verdict.

Oblon, supra, 406 Pa.Super. at 597, 595 A.2d at 65; Barefoot v. Penn Central Trans. Co., 226 Pa.Super. 558, 559, 323 A.2d 271, 272 (1974).

At issue in Barefoot was whether the jury rendered a verdict when a juror agreed with his peers in the jury room, but renounced his agreement during the jury poll. The trial court entered a verdict, stating: “once they [the jury] agree to a verdict and that is unanimous then that’s it. They don’t agree to it and then they come down here and say they don’t agree to it. The verdict will stand as recorded ...” Id. at 560, 323 A.2d at 272. We reversed the trial court, stating the general rule and adding:

The written jury verdict, prepared in the jury room and handed to the clerk, when it is objected to as in this case, is no part of the record and has absolutely no significance whatsoever as the verdict of the jury. Thus, it is generally accepted that a juror, when polled in open court, has the right to dissent from a verdict which he has agreed to in the jury room.

Id. (citations omitted).

In Obion, supra, the jury' submitted a verdict slip which appeared unanimous. During the jury poll, however, two jurors disagreed with the verdict as rendered. The trial judge refused to enter the verdict. Obion’s counsel obtained ex parte affidavits from the dissenting jurors which apparently evidenced a consensus. The trial judge refused to consider the affidavits and rejected a motion to mold the verdict. We affirmed and held that there was no verdict, since “the verdict as uttered, is the sole embodiment of the jury’s act.” Oblon, supra, 406 Pa.Super. at 598, 595 A.2d at 66; Havranek v. Pittsburgh, 344 Pa. 375, 25 A.2d 703 (1942). We also noted in Obion that since there was no verdict, the trial court would have to manufacture one by considering the affidavits of the jurors. This course of action would be improper. The practice of considering such unsworn statements is “highly unethical and improper.” Id.

We are not persuaded that this case warrants deviation from the well-established principles espoused above. Here, the jury returned the verdict slip to the judge prematurely. The trial judge, unsatisfied that the jury had not reached a conclusive answer to the question regarding defendants’ negligence, asked them to deliberate for another hour. This request was entirely proper. The trial judge may admonish the jury on the importance of unanimously agreeing on a verdict. Hickman v. Fruehauf, 386 Pa.Super. 455, 563 A.2d 155 (1989). When the jury returned at an impasse, they were polled. The result of the poll indicated that the jury was split 6-2 on the issue of whether defendants were negligent. They also split on whether the doctors’ conduct was a substantial factor in causing plaintiffs’ harm—six jurors felt their conduct was not a substantial factor and two felt it was. This is not a unanimous verdict. See Oblon, supra; 42 Pa.C.S.A. § 5104(b).

The original verdict slip’s notation that seven jurors felt that defendants’ conduct was not a substantial factor of the plaintiffs’ harm is irrelevant. First, Barefoot and Obion stand for the simple proposition that the contents of a verdict slip have absolutely no bearing on the final verdict rendered by a jury. The only verdict is the jury’s oral pronouncement. In this case, the jury poll indicated that only six, not seven, jurors agreed that defendants’ conduct did not cause plaintiffs’ harm. Second, the fact that seven jurors agreed in the jury room does not guarantee there would be no dissenters during the poll. This is true if the poll would have been taken at the instant the judge read the original slip to defense counsel, or waited for two hours. Third, in order for the trial judge to grant defendants’ wishes to “reinstate,” “mold,” or “enter” the original verdict, we would be asking the trial court to manufacture a verdict, not mold one. This is a practice which we decried in Obion, and will refuse to sanction here.

The order denying defendants’ motion for post-trial relief is affirmed. The matter will proceed to trial.

Judgment affirmed.

      . Defendants raise one issue on this appeal, in which they argue that the trial judge should have “molded,” "reinstated,” and “entered” judgment in accord with the intention of the jury. Since all three categorizations seek the same relief—judgment in defendants' favor— and offer the same rationale, we limit our discussion to whether the trial judge should have "molded” the verdict. Our rationale applies equally to defendants' claims that the judge should have "reinstated” or “entered” the verdict.

      . The slip also provided a third question, which asked the jury to determine plaintiffs’ damages. The jury was to respond to these questions only if they responded "yes” to the first two questions. That question is not relevant here.

      . 42 Pa.C.S.A. § 5104(b) provides: “In any civil case a verdict rendered by at least five-sixths of the jury shall be the verdict of the jury and shall have the same effect as a unanimous verdict of the jury.” Thus, seven out of eight jurors in agreement is sufficient to render a verdict. The trial judge specifically informed the jury of this. N.T. 9/23/91, pp. 154-155.


author: BECK, Judge:

text:
    619 A.2d 322
    Saul KAPLAN and Harold Kaplan v. I. KAPLAN, INC. (Formerly MGS Acquisition Corporation) and Atlantic Veal and Lamb, Inc., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1992.
    Filed Jan. 13, 1993.

      Andrew H. Cline, Harrisburg, for appellant.
    Walter T. Grabowski, Wilkes-Barre, for appellees.
    Before OLSZEWSKI, BECK and KELLY, JJ.
   BECK, Judge:

This is an appeal from an Order granting Supplementary Relief in Aid of Execution under Pennsylvania Rule of Civil Procedure 3118. Because we believe that the trial court acted within its discretion in granting the relief sought, we affirm.

In mid-1987, brothers Saul and Harold Kaplan, appellees herein, sold to MGS Acquisition Corporation (MGS) all of their shares in I. Kaplan Inc., a slaughtering and veal processing operation in Olyphant, PA. Each brother owned a 50% share in the company. Following the transfer, MGS changed its name to I. Kaplan, Inc., one of the appellants herein. Appellants’ brief explains in detail the financing terms associated with the sale, including the involvement of the Bank of New Zealand (Bank), which made certain loans to MGS in order to facilitate the purchase. In return for their stock, appellees received from I. Kaplan, Inc. a $500,000. note which contained a confession of judgment provision. The note was due on the earliest of: six years from the date of the note, one year after repayment of the debt to the Bank or upon the refinancing of the debt to the Bank. The note also provided that the debt to the Kaplans was subordinate to the debt to the Bank.

In May, 1991, apparently due to business difficulties, I. Kaplan, Inc. defaulted on its payments to the Bank. Pursuant to an agreement between I. Kaplan, Inc. and the Bank, I. Kaplan, Inc. was acquired by Atlantic Veal and Lamb, Inc. (Atlantic). Atlantic paid the purchase price to acquire I. Kaplan, Inc., $590,000, directly to the Bank. I. Kaplan Inc. remained indebted to the Bank for $650,000. On July 2, 1991 appellees filed a Complaint in Confession of Judgment against appellants; the judgment was entered on that date by the Clerk of Judicial Records of Lackawanna County. Thereafter, appellants filed a Petition to Strike Off or Open Judgment Entered by Confession. The Petition to Strike was denied; however, the Petition to Open was still undecided at the time of argument in the instant matter.

In December 1991, in response to Atlantic’s removal of equipment from the Olyphant plant, appellees filed a Petition For Supplementary Relief in Aid of Execution under Pa. R.C.P. 3118. The petition was granted on December 31, 1991; as a result, appellants were, inter alia, enjoined from removing any machinery or equipment from the Olyphant plant. Appellants timely filed this appeal from the trial court’s order.

In support of its position that the trial court erred in granting relief under Rule 3118, appellants attack the validity of the Judgment entered in this matter and assert that, in order to receive Rule 3118 relief, appellees were required to establish the requirements for a traditional injunction. Atlantic offers several reasons why the underlying judgment is facially invalid, including that Atlantic cannot be subject to the warrant of attorney provision because it was not a signator to the agreement and that, in any event, appellees are not entitled to confess judgment because the agreement requires a default prior to confession, which has not occurred in this case. While these arguments may or may not have substantive merit as to the validity of the judgment, we believe that, procedurally, we are precluded from considering appellants’ assertions on this issue.

A grant of relief by a trial court under the authority of Rule 3118 is reviewed for an abuse of discretion. Chadwin v. Krouse, 254 Pa.Super. 445, 386 A.2d 33 (1978). In the instant matter, the parties are in disagreement over what a party is required to establish at a Rule 3118 proceeding. This is not surprising considering the lack of case law addressing the issue and the lack of direction given in the few opinions which have reviewed orders under the rule. Appellants claim that the lower court should have reviewed the validity of the judgment, as well as required appellees to establish the traditional prerequisites for an injunction, specifically, a clear right to relief, great and irreparable harm, and greater injury in denying injunctive relief than in granting it. Appellees, on the other hand, state that relief under Rule 3118 requires no such showing.

“Rule 3118 authorizes summary proceedings in aid of execution for the purpose of maintaining the status quo of the judgment debtor’s property and may be used only for that purpose.” Greater Valley Terminal Corporation v. Good man, 415 Pa. 1, 8, 202 A.2d 89, 94 (1964). In Greater Valley, a judgment creditor sought to set aside alleged fraudulent transfers of the judgment debtor in a proceeding under Rule 3118. The judgment debtor challenged the court’s authority to grant the relief, but the trial court held that full equitable relief was available under Rule 3118 and set aside the conveyances of stock certificates as fraudulent. In holding that the trial court erred, our supreme court stated that the right to supplementary relief under Rule 3118 is given “without the necessity of full dress equity proceedings” and that the rule “envisions something less than a full hearing prior to the granting of relief.” Icl. at 6, 202 A.2d at 93.

In Chadwin v. Krouse, 254 Pa.Super. 445, 386 A.2d 33 (1978), a panel of this court relied on Greater Valley in holding that the summary nature of Rule 3118 proceedings did not permit the trial court to compel a judgment debtor to bring property into the state when there was no evidence that it was ever removed therefrom. Id. at 451, 386 A.2d at 36. The judgment creditor in Chadwin sought to have the debtor deliver to the sheriff securities which were, at all times, located out of state. The court distinguished relief requested under Rule 3118 from traditional injunctive relief and explained: “It is the streamlined nature of a Rule 3118 proceeding, however, which militates against its use for any purpose other than to maintain the status quo with respect to the debtor’s assets.” Id. at 452, 386 A.2d at 37 (emphasis supplied).

We are aware that in these cases, the courts’ insistence that the Rule 3118 proceeding be narrowly focused was of benefit to the debtor, whereas here, it is the debtor who is requesting that the court consider the underlying issues in a broader context. However, the rule of law we extract from the case law is that the nature of a Rule 3118 proceeding is strictly limited, regardless of which party is assisted thereby. We are convinced by the rationale of Greater Valley and Chadwin that the predicates to Rule 3118 relief in this case are the existence of an underlying judgment and property of the debtor subject to execution. To require the trial court to delve into the validity of the judgment, even where the debtor alleges facial errors, is to require too much. This is particularly true because the grant of relief does nothing more than maintain the status quo of a debtor’s property.

For the same reason that the trial court need not review the validity of a judgment, it need not require a showing of the traditional requirements for an injunction; this simply is not required by the rule. Our decision is supported by this court’s opinion in Gulf Mortgage and Realty Investments v. Alten, 282 Pa.Super. 230, 422 A.2d 1090 (1980). In Gulf Mortgage, we upheld an order of the trial court compelling the judgment debtor to deliver to the sheriff various stock certificates. In addition to claiming that the certificates were not subject to execution, the debtor claimed that, despite the fact that his counsel had an opportunity to argue orally the merits of the issue, he was denied a hearing as required by Rule 3118. The court held that even though the debtor did not receive a hearing, the lower court’s grant of relief was proper because the debtor admitted in his answer the allegations necessary for resolution of the petition:

[Appellant’s answer admitted every relevant factual allegation in the petition for supplementary relief—specifically, the existence of the judgment and appellant’s ownership and possession of the shares....

Id. at 237, 422 A.2d at 1094. (emphasis supplied)

In the instant case, appellants do not claim that the underlying confessed judgment does not exist, they challenge its validity. We find that their challenge is misplaced and cannot be considered by this court. It is the existence of the judgment that permitted the trial court to consider and grant relief under Rule 3118. A full hearing on the traditional injunction requirements is not mandated by the rule; therefore, we make no findings with respect to the judgment’s propriety and must disregard appellants’ arguments based thereon.

The remaining issue for our review is whether the property enjoined from removal is “subject to execution” as required by the rule. See Pa.R.C.P. 3118(a)(2). At the hearing, appellees claimed that the equipment in the plant was part of the Olyphant realty, and therefore subject to execution, under the Industrial Plant Doctrine. The doctrine provides that permanently installed machinery or equipment that is vital to an industrial plant is considered part of the realty; the doctrine long has been used in a variety of circumstances to determine whether property is personalty or realty. See e.g., Gottus v. Allegheny County Redevelopment Authority, 425 Pa. 584, 229 A.2d 869 (1967) (eminent domain); United Laundries v. Board of Property Assessment, 359 Pa. 195, 58 A.2d 833 (1948) (local real estate taxation); Central Lith. Co. v. Eatmor Chocolate Co., 316 Pa. 300, 175 A. 697 (1934) (industrial mortgage ownership). See also Singer v. Redevelopment Authority of Oil City, 437 Pa. 55, 261 A.2d 594 (1970). The doctrine is analogous to fixture law. Fixtures are defined by the Pennsylvania Commercial Code as goods which become so related to particular real estate that an interest in them arises under real estate law. 13 Pa.C.S.A. § 9313. Appellants admit that it is the intention of the parties at the time the items are placed on the property that determines whether the equipment becomes part of the real estate. In re Ginsburg, 255 F.2d 358 (3d Cir.1958).

At the hearing, appellee Saul Kaplan testified to the circumstances surrounding the installation of equipment and machinery at the plant:

Q: Can you estimate for the Court the cost of those improvements?
A: I’d have to give you a very ballpark figure, runs in the millions of dollars.
Q: How is the equipment—how is this equipment placed in the plant?
A: What specific type of—
Q: Well, I guess my question is was it free standing, was it somehow bolted into the plant or affixed?
A: In the slaughtering facility, we put in moving conveyers which attached to the structure of the plant.
Q: How are they attached?
A: By welds. We put in a very sophisticated calf skinning operation which took place in about 1982, ’83. That made it it [sic] number 1 in the country, and that was attached by welds to the superstructure of the plant.
Q: At the time this equipment was installed, Mr. Kaplan, what was your intent with regard to it’s [sic] future use and location?
A: It was to stay there and keep the operation going. Q: Did you ever intend to remove it?
A: Definitely not.

Based on this testimony, the lower court found that the equipment at issue was an integral part of the plant and, therefore, part of the real estate and subject to execution.

In their brief, appellants rely on Cattie v. Joseph P. Cattie & Brothers, Inc., 403 Pa. 161, 168 A.2d 313 (1961) for the proposition that where a tenant attaches equipment to property for the operation of his business, a presumption arises that the equipment does not become part of the real estate unless there is a clear expression of an agreement between the landlord and tenant. Appellants point out that at the time the Kaplans installed the equipment, the property was owned by another entity, D & T Realty; therefore, under Cattie, absent a clear agreement with the landlord, the equipment installed did not become part of the real estate. However, the Kaplans were the sole owners of D & T Realty, the landlord. We believe their ownership and control of D & T, coupled with Saul Kaplan’s testimony of his intent, satisfy the Cattie test.

Appellants also claim that the removal of a single piece of equipment, a cryovac machine, constitutes proof that the equipment had not become part of the realty. However, Mr. Kaplan testified that the cryovac machine was only at the plant for storage purposes and was never used in the operation there. The trial court’s acceptance of Saul Kaplan’s testimony regarding his intentions was not an abuse of discretion.

The record below supports the order of the trial court in that it reflects the existence of a judgment against appellants and property of the appellants subject to execution; therefore the grant of relief under Rule 3118 was proper.

Order affirmed.

      . At the time of the acquisition, Atlantic agreed to assume all liabilities and obligations of I. Kaplan, Inc. except those with respect to borrowed monies.

        . The Order appealed from provides, in pertinent part:
      ORDERED, in accordance with the provisions of Rule 3118 of the Pennsylvania Rules of Civil Procedure, that
      1. The defendants and their agents, servants, workmen and employees are hereby enjoined from the transfer, removal, conveyance, assignment or other disposition of machinery and equipment used or useful in the Defendants' present or previous business operations at Hull Avenue, Olyphant, Pennsylvania....

      . The validity of the judgment will be addressed by the trial court in the Petition to Open, which has yet to be decided. If the trial court denies the Petition to Open, appellants will be entitled to appeal, at which time the arguments improperly offered in this appeal can be considered by this court.

      . Pennsylvania Rule of Civil Procedure 3118 provides, in pertinent part: (a) On petition of the plaintiff, after notice and hearing, the court in which a judgment has been entered may, before or after the issuance of a writ of execution, enter an order against any party or person
      (1) enjoining the negotiation, transfer, assignment or other disposition of any security, document of title, pawn ticket instrument, mortgage, or document representing any property interest of the defendant subject to execution;
      (2) enjoining the transfer, removal, conveyance, assignment or other disposition of property of the defendant subject to execution;
      (3) directing the defendant or any other party or person to take such action as the court may direct to preserve collateral security for property of the defendant levied upon or attached, or any security interest levied upon or attached;

        (4) directing the disclosure to the sheriff of the whereabouts of property of the defendant;
      (5) directing that property of the defendant which has been removed from the county or concealed for the purpose of avoiding execution shall be delivered to the sheriff or made available for execution; and
      (6) granting such other relief as may be deemed necessary and appropriate.

      . We are cognizant of the fact that Rule 3118 provides for relief "before or after the issuance of the writ of execution,” so that, as in this case, there may not be a writ from which the court can determine what property is subject to execution.


author: CIRILLO, Judge:

text:
    619 A.2d 327
    COMMONWEALTH of Pennsylvania v. Thomas A. FOX, Jr. Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1992.
    Filed Jan. 14, 1993.

      Michael J. Anthony, Wilkes-Barre, for appellant.
    Scott Gartley, Asst. Dist. Atty., Wilkes-Barre for Com., appellee.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Luzerne County. We affirm.

Appellant Thomas A. Fox, Jr. was charged with criminal homicide and, following a jury trial, was convicted of murder in the first degree. Fox, along with co-defendant John Jerome Masi, shot Ronald Hasiuk after the three men had engaged in a night of drinking and drug taking.

At the preliminary hearing the Commonwealth presented testimony of the only eyewitness, co-defendant Masi, who testified on direct examination that he had shot the victim in self-defense, and it was Fox who shot Hasiuk with a small rifle several times. Counsel for Fox then attempted to cross-examine Masi on numerous matters relating to the incident. The assistant district attorney made several objections to defense counsel’s questions, many of which were sustained by the district justice.

After the preliminary hearing, the case was bound over for court and Fox filed a petition for a writ of habeas corpus. The petition alleged that Fox had been denied his right of confrontation and cross-examination of Masi. After oral argument, the petition was denied.

Following the trial and guilty verdict, Fox filed post-trial motions, which were denied. A sentence of life imprisonment was imposed and this timely appeal followed. Fox raises the following issues for our consideration:

(1) Must Fox receive a new trial where the trial court permitted an accomplice’s plea agreement which contained a reference to the accomplice’s agreement to testify “truthfully” at subsequent prosecutions to go out with the jury for their consideration?
(2) Must Fox be granted a new trial where the attorney for the Commonwealth in his opening remarks to the jury referred to Fox as a “liar?”
(3) Was Fox denied his right of cross-examination of the principal witness against him at a preliminary hearing by the district justice presiding at said preliminary hearing?
(4) Must Fox be granted a new trial where Fox was foreclosed from cross-examining the sole eyewitness against him at trial concerning the eyewitness’s expected sentence under the provisions of the Pennsylvania Sentencing Code where such witness had agreed to cooperate with the Commonwealth in its case against Fox?
(5) Did the trial court err in permitting various Commonwealth witnesses to testify concerning statements made by the principal witness against Fox which contained statements allegedly made by Fox where the Commonwealth did not prove either directly or inferentially that a conspiracy had existed or continued to exist to kill the victim?
(6) Did the trial court err in permitting testimony concerning the exact locations of the bullets and shell casings found at the crime scene where defense counsel had repeatedly requested this information prior to trial, it was material to the defense, the defense was told that such information did not exist, and where this information was, accordingly, unable to be presented to Fox’s retained expert for analysis?
(7) Was the guilty verdict contrary to the weight and sufficiency of the evidence?

Initially, Fox argues that it was error to allow Masi’s plea agreement to go out with the jury, contending that this deprived him of his rights to due process and a fair trial. Specifically, Fox asserts that he was prejudiced because the agreement contained a statement that Masi “agree[d] to cooperate with and testify truthfully on behalf of the Commonwealth in all subsequent prosecutions.”

Pennsylvania Rule of Criminal Procedure 1114 provides that the jury may take with it such exhibits as the trial judge deems proper. Thus, whether an exhibit should be allowed to go out with the jury during deliberation is within the discretion of the trial judge, and such decision will not be overturned absent an abuse of discretion. Commonwealth v. Bricker, 525 Pa. 362, 378, 581 A.2d 147, 155 (1990); Commonwealth v. Thomas, 372 Pa.Super. 349, 361, 539 A.2d 829, 836 (1988), appeal denied, 520 Pa. 604, 553 A.2d 967 (1988); Commonwealth v. Sparks, 351 Pa.Super. 320, 327-28, 505 A.2d 1002, 1006 (1986).

In support of his argument, Fox relies on Commonwealth v. Bricker, supra, where the court determined that the trial court erred when it permitted plea agreements of two Commonwealth witnesses to be sent out with the jury during deliberations. In reaching this decision, the Bricker court stated:

It is beyond question that permitting the prosecution to send these documents out with the jury during deliberations impermissibly bolstered the credibility of [the Commonwealth’s witnesses]. In so bolstering their credibility, the court violated the defendant’s right to a fair trial.

Id. 525 Pa. at 377, 581 A.2d at 154.

While we do not disagree with Fox’s presentation of the Bricker case, we find that Brieker does not control in the instant appeal, as the facts here can be distinguished. Co-defendant Masi’s plea agreement was introduced by the defense during Masi’s cross-examination at trial and was initially marked as a defense exhibit. Furthermore, the following question was posed to Masi by defense counsel:

[I]sn’t it true that part of the plea agreement provides that the defendant will agree to cooperate with and testify truthfully on behalf of the Commonwealth in all subsequent prosecutions?

Masi responded in the affirmative. As set forth in the trial transcript, the defense exhibit was highlighted in yellow marker. On re-direct, the plea agreement was marked as a Commonwealth exhibit for purposes of refuting defense’s cross-examination of Masi. Importantly, following the close of testimony, defense counsel raised no objection to sending out with the jury the “unhighlighted” copy of the plea agreement. Thus, Fox may not now claim that he was prejudiced by evidence which he initially introduced and to which he posed no objection when the exhibit was moved into evidence and later requested to go out with the jury.

In an analogous situation, this court in Commonwealth v. Merbah, 270 Pa.Super. 190, 411 A.2d 244 (1979) found no abuse of discretion where the trial court admitted into evidence a prosecution witness’ written statement which was thereafter sent out with the jury. In its conclusion the court stated:

In the case at bar there was no abuse of discretion. Since the appellant himself placed the evidence in question before the jury, it is difficult to understand how he sustained prejudice by the jury’s removal of the statement to their deliberation chambers.

Id. at 195, 411 A.2d at 247.

Accordingly, we find that there was no harm in allowing the plea agreement to be sent out with the jury during deliberations. We conclude, therefore, that there has been no abuse of discretion. Bricker, supra; Thomas, supra.

Fox next argues that he should be granted a new trial because the Commonwealth, during opening statements, referred to Fox as a “liar.” After an immediate objection by defense counsel, the trial court responded with the following cautionary instruction:

[T]he jury will base its own hearing of the witnesses and determining credibility in this case and I don’t think any of the witnesses should be classified as liars.

Our standard of review for an allegation of prosecutorial misconduct has recently been set forth in Commonwealth v. Scarfo, 416 Pa.Super. 329, 407-08, 611 A.2d 242, 281 (1992) as follows:

Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. Rather, the focus is on what, if any, effects the comments had on the jury. A new trial is required when the effect of the District Attorney comments “would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Further, this decision is for the trial court to make. Our role is to determine solely whether the trial court abused its discretion.

Id. at 407-08, 611 A.2d at 281 (quoting Commonwealth v. Faulkner, 528 Pa. 57, 77, 595 A.2d 28, 39 (1991), cert. de nied, — U.S. -, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992) (citations omitted)).

In regard to the opening statements of a prosecutor, such statements “should be limited to a statement of the facts which he intends to prove, and the legitimate inferences therefrom.” Commonwealth v. Duffey, 519 Pa. 348, 361-62, 548 A.2d 1178, 1184 (1978). Although the particular remark in question in the instant case was not directly related to the facts which the prosecutor intended to prove, the ultimate question in this matter is whether the jury was prejudiced to the point where the prosecution’s comment instilled a fixed bias and hostility toward Fox. Faulkner; supra; Scarfo, supra. It is our finding that the trial court’s cautionary instruction relieved, in the jury’s minds, any fixed bias or hostility. Even assuming that no curative instruction had been given, we find that this remark, standing alone, fails to rise to the level of prejudice which would render the jury incapable of exercising objective judgment. Accordingly, a new trial is not warranted on this issue.

In Fox’s third issue, he contends that a new trial is warranted because he was denied his “right” of cross-examination of Masi, the sole eye-witness, at the preliminary hearing. Specifically, Fox alleges that the district justice erred in sustaining the objections of the Commonwealth to defense counsel’s questions relating to the reliability, credibility and powers of observation of co-defendant Masi. Fox further asserts that he was not afforded a full and fair opportunity to cross-examine Masi with respect to Masi’s motive for testifying nor with respect to Masi’s prior inconsistent statements, thereby leaving Fox with no valuable impeachment material for trial.

In support of his position, Fox relies primarily on Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990), cert. denied, — U.S. -, 111 S.Ct. 1108, 113 L.Ed.2d 217 (1991), and Pennsylvania Rule of Criminal Procedure 141 for the proposition that a criminal defendant has a right to confront and cross-examine the witnesses against him or her at a preliminary hearing. While the Buchanan plurality suggests a right to confront and cross-examine at a preliminary hearing, citing the United States and Pennsylvania constitutions in support thereof, the precise holding in Buchanan is that hearsay testimony alone is insufficient to establish a prima facie case at a preliminary hearing. Hence, Fox’s reliance on Buchanan is misplaced. Fox was not precluded from cross-examining Masi at the preliminary hearing. To the contrary, defense counsel questioned Masi at length. The fact that several of Fox’s questions during cross were objected to and such objections were sustained did not deny Fox his right of cross-examination at the preliminary hearing stage.

Furthermore, it is well-settled that the preliminary hearing serves a limited function. “The purpose of a preliminary hearing is to avoid the incarceration or trial of á defendant unless there is sufficient evidence to establish a crime was committed and the probability the defendant could be connected with the crime.” Commonwealth v. Tyler, 402 Pa.Super. 429, 433, 587 A.2d 326, 328 (1991), appeal denied, — Pa. -, 617 A.2d 1263 (1992) (quoting Commonwealth v. Wodjak, 502 Pa. 359, 466 A.2d 991 (1983)); see also Pa.R.Crim.P. 141(d). Since the Commonwealth merely bears the burden of establishing a prima facie case against the defendant, credibility is not an issue at at preliminary hearing. See Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968) (removing credibility as an issue at a preliminary hearing and limiting defense actions to negating the existence of a prima facie case conforms to the fact that a preliminary hearing is a much less searching exploration into the merits of the case); Tyler 402 Pa.Super. at 433, 587 A.2d at 328 (credibility is not an issue at a preliminary hearing); Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 262, 566 A.2d 246, 248 (1989) (magistrate is precluded from considering the credibility of a witness who is called upon to testify during- the preliminary hearing).

In light of the clear purpose of a preliminary hearing, Fox’s claim of denial of effective cross-examination is without merit. Not only was Fox afforded a full and fair oppoi'tunity to cross-examine Masi during the preliminary hearing, the cross-examination lasted several hours and covers approximately one hundred and fifty-four pages of transcript. Many of the questions asked by defense counsel to which objections were made and sustained had already been asked and answered, were not relevant, or dealt with issues of credibility. Accordingly, we find that Fox was not denied his opportunity to cross-examine co-defendant Masi.

In his fourth issue, Fox contends that he was foreclosed from cross-examining Masi at trial concerning Masi’s expected sentence, following Masi’s guilty plea to third degree murder. It is well-settled that the scope and manner of cross-examination are within the sound discretion of the trial judge whose decisions will not be overturned absent an abuse of discretion. Tyler 402 Pa.Super. at 435, 587 A.2d at 329; Commonwealth v. Laskaris, 385 Pa.Super. 339, 561 A.2d 16 (1989), appeal denied, 525 Pa. 617, 577 A.2d 889 (1990). It is equally well-settled that, at trial, the right to cross-examination is essential to the protections granted under the Sixth Amendment Confrontation Clause of the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution. See Commonwealth v. Hill, 523 Pa. 270, 566 A.2d 252 (1989); Commonwealth v. Peetros, 517 Pa. 260, 535 A.2d 1026 (1987).

Fox correctly points out, and the appellate courts have held: Hill 523 Pa. at 273, 566 A.2d at 253 (quoting Commonwealth v. Evans, 511 Pa. 214, 216, 512 A.2d 626, 627 (1986)); see also Commonwealth v. Eicher, 413 Pa.Super. 235, 258, 605 A.2d 337, 349 (1992); Commonwealth v. Culmer, 413 Pa.Super. 203, 210, 604 A.2d 1090, 1094 (1992); Commonwealth v. Cobb, 409 Pa.Super. 168, 170, 597 A.2d 714, 715 (1991), appeal denied, 530 Pa. 664, 610 A.2d 44 (1992).

[Wjhenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury.... The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased....

Bearing in mind the reasoning enunciated in the line of cases set forth above, in the present situation it is clear from the record that Fox’s counsel was given the latitude necessary to cross-examine Masi in regard to Masi’s plea agreement with the Commonwealth. As reflected in the trial transcript, there is little doubt that the dialogue exchanged between defense counsel and Masi made it apparent to the jury that Masi pleaded guilty to third-degree murder and, consequently, received a greatly reduced sentence. Fox was also permitted to inquire about Masi’s understanding of the sentence he would receive, the sentencing guidelines, and the effect of his cooperation. Throughout this portion of Masi’s cross-examination the Commonwealth objected to the line of questioning several times; the court, however, allowed the' questions and overruled nearly every objection.' In light of these facts we find that Fox was given sufficient opportunity to at least raise a doubt in the minds of the jury as to whether Masi was biased. Evans, supra; Hill, supra. A new trial, therefore, is not warranted on these grounds.

Fox next argues that it was error for the court to permit Commonwealth witnesses to testify concerning remarks that Masi said were made by Fox. Initially, we find that the record belies Fox’s description of the testimony at issue. The Commonwealth’s witnesses’ testimony to which Fox refers makes no mention of actual statements made by Fox to Masi. Rather, these witnesses related conversations that they had with Masi directly, or conversations that they had with Fox directly. Regardless of this error, we find that the testimony in question was properly admitted under the co-conspirator’s exception to the hearsay rule.

Specifically, Fox contends in his post-trial motions that the Commonwealth had not proved beyond a reasonable doubt that a conspiracy had existed between Masi and himself. The co-conspirator’s exception to the hearsay rule

allows statements by a co-conspirator to be admitted against an accused if the statements are made during the conspiracy, in furtherance thereof, and where there is ... other evidence of the existence of a conspiracy. The co-conspirator exception applies even where no party has been formally charged with conspiracy.

Commonwealth v. Cherpes, 360 Pa.Super. 246, 258, 520 A.2d 439, 445 (1987), appeal denied, 515 Pa. 612, 530 A.2d 866 (1987) (quoting Commonwealth v. Dreibelbis, 493 Pa. 466, 475, 426 A.2d 1111, 1115 (1981) (citations omitted)); see also Commonwealth v. Zdrale, 530 Pa. 313, 316, 608 A.2d 1037, 1039 (1992). Hence, for such testimony to be admissible, the Commonwealth must show the following: (1) a conspiracy existed between the declarant and the party against whom the evidence is offered; (2) the statement sought to be admitted was made during the course of the conspiracy; and (3) there is other evidence to prove that a conspiracy existed. Cherpes 360 Pa.Super. at 257, 520 A.2d at 445. The trial court may admit such statements “upon only slight evidence of the conspiracy.” Id. The Commonwealth need not prove the conspiracy beyond a reasonable doubt; rather, it must prove the conspiracy by merely a fair preponderance of the evidence. Id. Furthermore, for purposes of this rule, the conspiracy may be inferentially established. Commonwealth v. Chester, 526 Pa. 578, 592-95, 587 A.2d 1367, 1374-75 (1991), cert. denied, — U.S. -, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991); Dreibelbis 493 Pa. at 473, 426 A.2d at 1115; Cherpes 360 Pa.Super. at 257, 520 A.2d at 445.

Here, the Commonwealth has met its burden of establishing the existence of a conspiracy by a fair preponderance of the evidence. In light of the testimony heard at trial, the physical evidence and all reasonable inferences drawn therefrom, we find ample support for this conclusion. Consequently, the trial court properly admitted the testimony in question.

In Fox’s sixth issue, he avers that the trial court erred in permitting testimony concerning the exact locations of the bullets and shell casings found at the crime scene, where this information had allegedly not been made available to the defense before trial. In this assertion, Fox essentially contends that the Commonwealth failed to comply with Rule 305(B)(1) of the Pennsylvania Rules of Criminal Procedure, which provides that in all court cases, by request of the defendant, the Commonwealth shall disclose the following (provided they are material to the case):

(e) results or reports of scientific tests, expert opinions and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant, which are within the possession or control of the attorney for the Commonwealth;
(f) any tangible objects, including documents, photographs, fingerprints or other tangible evidence ...

The purpose of the discovery rules is to permit the parties in a criminal matter to be prepared for trial; trial by ambush is contrary to the spirit and letter of those rules. Commonwealth v. Moose, 529 Pa. 218, 235, 602 A.2d 1265, 1274 (1992). This court has also acknowledged that, generally, the purpose of discovery is to “accord a defendant the opportunity to discover evidence which he did not know existed, as well as to seek possession of evidence of which he was aware.” Commonwealth v. Hussmann, 335 Pa.Super. 603, 609, 485 A.2d 58, 61 (1984). It is clear from the record that adequate disclosure was provided by the Commonwealth; nonetheless, Fox claims that the Commonwealth’s failure to disclose the exact location of each particular shell frustrated the efforts of the defense’s expert in forming an adequate opinion in regard to these items. Fox cites Commonwealth v. Thiel, 323 Pa.Super. 92, 470 A.2d 145 (1983) in support of his argument. We find that Thiel can be easily distinguished, however, in that it involved evidence which the Commonwealth had failed to disclose and which defendant was unaware of until trial.

Fox was made aware of the existence of the shells, was provided with a map of the crime scene and was informed by the Commonwealth that all four shells were found in a particular area. Hence, we have little difficulty in concluding that the Commonwealth’s failure to reveal the specific location of each shell does not undermine the discovery rules, especially where defense counsel was aware of the existence of the shells and was adequately prepared for trial. Hussmann, supra; Moose, supra.

In his final issue on appeal, Fox claims that the verdict was contrary to the weight and/or sufficiency of the evidence. Specifically, Fox asserts in his brief that Masi was an unreliable witness and that there was insufficient physical evidence to sustain the verdict. Where issues of credibility and weight of the evidence are concerned, it is not the function of an appellate court to substitute its judgment based on a cold record for that of the trial court. Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973); McElrath v. Commonwealth, 405 Pa.Super. 431, 443, 592 A.2d 740, 745 (1991). A new trial is warranted on a challenge to the weight of the evidence only if the verdict is so contrary to the evidence as to shock one’s sense of justice. McElrath at 443, 592 A.2d at 745. Given this stringent standard, along with the facts and testimony of the instant case, we do not find the evidence here so shocking to one’s sense of justice so as to warrant a new trial. Furthermore, issues of credibility are left to the trier of fact; the jury is free to accept all, part, or none of the witness testimony. Commonwealth v. Pirela, 398 Pa.Super. 76, 83, 580 A.2d 848, 852 (1990), appeal denied, 527 Pa. 672, 594 A.2d 658 (1991); Commonwealth v. Vitacolonna, 297 Pa.Super. 284, 443 A.2d 838, 841 (1982). Hence, we find no need to disturb the conclusions of the trial court on these grounds.

In reviewing a challenge to the sufficiency of the evidence, this court must ask whether the evidence, and all reasonable inferences therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offense beyond a reasonable doubt. Commonwealth v. Thomas, 527 Pa. 511, 512, 594 A.2d 300, 301 (1991); see also Commonwealth v. Glover, 399 Pa.Super. 610, 615, 582 A.2d 1111, 1114 (1990). To prove murder of the first degree, the Commonwealth must demonstrate; (1) that a human being has been unlawfully killed; (2) that the person accused did the killing; and (3) that the killing was done with malice aforethought, as well as with premeditation and deliberation. Commonwealth v. Mitchell, 528 Pa. 546, 550, 599 A.2d 624, 626 (1991); 18 Pa.C.S.A. § 2502(a). The testimony and physical evidence introduced at trial indicate that the elements of first degree murder have been established beyond a reasonable doubt. The trial court’s findings will not be disturbed.

Based on the foregoing arguments, we conclude that Fox’s claims have no merit and, accordingly, the trial court’s decision is affirmed.

Judgment of sentence affirmed.

      . As a general rule, in order to preserve an issue for appeal, defendant must make a timely objection at trial. See Commonwealth v. Blassingale, 398 Pa.Super. 379, 396, 581 A.2d 183, 191 (1990); Commonwealth v. Perdue, 387 Pa.Super. 473, 485, 564 A.2d 489, 495 (1989), appeal denied, 524 Pa. 627, 574 A.2d 68 (1990); Commonwealth v. McDermott, 311 Pa.Super. 623, 641, 547 A.2d 1236, 1245 (188); Commonwealth v. Redel, 335 Pa.Super. 354, 361, 484 A.2d 171, 175 (1984).

      . The witnesses to which Fox refers to in his brief are as follows: Rita Burginia, an acquaintance of Masi’s; Stanley Jezewski, a Pennsylvania state police trooper; and Cindy Masi, Masi’s wife.

      . The record reflects that the three men in question, Fox, Masi, and the victim, entered a wooded area around midnight to “shoot at tree branches.” The two guns that were taken along both belonged to Masi; one in his possession and the other in Fox's possession. The victim was shot six times. Masi and Fox left the scene together in Fox's car.


author: TAMILIA, Judge:

text:
    619 A.2d 336
    EQUIBANK, v. George A. MILLER and James E. Depasquale, individually and T/A Miller and Depasquale, Appellants.
    Superior Court of Pennsylvania.
    Submitted Dec. 11, 1992.
    Filed Jan. 14, 1993.

      John Elash, Pittsburgh, for appellants.
    William D. Clifford, Pittsburgh, for appellee.
    Before TAMILIA, HUDOCK and MONTGOMERY, JJ.
   TAMILIA, Judge:

George A. Miller and James E. Depasquale appeal the Order entered April 27, 1992 dismissing their petition to open/strike the judgment confessed against them as well as discharging the rule addressed to plaintiff/appellee.

On October 26, 1984, appellants and John Elash individually and as a partnership executed a demand note (Note 1) in favor of appellee in the amount of $20,000. On June 10, 1985, Note 1 from appellee to appellants and Elash was paid in full, and the note cancelled. On the same date, appellants individually and as partners in Miller & DePasquale, executed another demand note (Note 2) in favor of appellee in the amount of $30,000. From June 10, 1985 to July 20, 1988, appellants made regular payments on the principal and interest of Note 2; as of July 20, 1988, they owed $24,121.50 in principal and $141.62 in accrued interest. When appellants’ law firm dissolved, however, they stopped making payments.

On August 25, 1988, appellee filed a complaint in confession of judgment against appellants and Elash at GD88-14677, and mistakenly incorporated Note 1 as an exhibit instead of Note 2. In the body of this complaint, appellee specifically refereneed the applicable debt as being derived from Note 1. The amount sought, however, was the amount owed on Note 2. On October 3, 1988, appellee again filed a complaint in confession of judgment against appellants and Elash at GD88-17266 and again made the mistakes noted above with regard to incorporating and referencing Note 1 instead of Note 2. When appellee recognized its mistakes, and further realized that any judgments based on Note 1 would not be enforceable, it praeciped to settle and discontinue the action at GD88-17266 and praeciped to satisfy the judgment at GD88-14677.

Shortly thereafter, on July 18, 1989, appellee filed the confession of judgment now at issue against appellants and attached Note 2 as an exhibit. This time, appellee properly referenced Note 2 and requested judgment in the sum of $31,136.19 (principal of $24,121.50 and interest of $2,953.45), plus counsel fees and costs of $4,061.24. In response, appellants filed a petition and an amended petition to strike off and open the judgment based on res judicata principles and also demanded attorney’s fees. On January 22, 1991, the trial court entered an Order opening judgment. Thereafter, the matter proceeded to a nonjury trial, and on April 27, 1991, the trial court entered the Order from which this appeal is taken.

The trial court based its decision in large part upon the fact appellants admitted to owing the money as claimed under Note 2. In explaining why the res judicata defense did not apply, the court stated “it is clear that the required identities are not present: (1) different Notes, (2) different causes of action and (3) different parties.” (Slip Op., Doyle, J., 4/27/92, p. 7.) We agree with the trial court appellants’ defenses are inapplicable and appellants have neither a legal nor moral excuse for failing to satisfy the obligation admittedly owing under Note 2.

Appellants argue the moment the judgment at GD88-14677 was marked satisfied, by applying the principles of res judicata and collateral estoppel, appellee no longer had the right to act as to the debt contained in Note 2, as it merged into the satisfied judgment and was extinguished. This argument lacks merit.

Our supreme court has recently set forth tests to apply for [res judicata and collateral estoppel]. Application of the doctrine of res judicata requires the concurrence of four elements: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality in the persons for or against whom the claim is made.
Collateral estoppel ... applies if (1) the issue decided in the prior case is identical to the one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding; and (5) the determination in the prior proceeding was essential to the judgment.

Melat v. Melat, 411 Pa.Super. 647, 653-654, 602 A.2d 380, 383-384 (1992), citing City of Pittsburgh v. Zoning Board of Adjustment, 522 Pa. 44, 559 A.2d 896 (1989). The res judicata defense clearly fails since in the prior actions, appellee sued for the debt owed under Note 1 and in this action, it sued for the obligation owed under Note 2. Collateral estoppel also does not apply since the issue surrounding the satisfied judgment centered on Note 1 and the main issue here involves Note 2.

Appellants argue that since the amount of the claim set forth in the first two actions is the same amount actually corresponding to Note 2, the prior actions should be construed as being based upon Note 2, thereby enabling the court to construe the things sued for and the issues as being identical.

“Whenever there is an inconsistency between the allegations of the complaint and a written instrument, to-wit, the documents in this case, the latter will prevail.” Eberhart v. Nationwide Mutual Insurance Co., 238 Pa.Super. 558, 565 n. 6, 362 A.2d 1094, 1097 n. 6 (1976). See Schuylkill Products v. H. Rupert & Sons, Inc., 305 Pa.Super. 36, 39 n. 2, 451 A.2d 229, 231 n. 2 (1982). Since Note 1 was attached to the complaint for confession of judgment which was eventually satisfied, we construe that action as being based upon Note 1, even though the numbers contained in the complaint corresponded to Note 2.

Because of the unique set of circumstances surrounding this case, our research has located no precedent on point. Nonetheless, appellant contends this case is similar to Kalman v. Muzikar and First Valley Bank, 304 Pa.Super. 503, 450 A.2d 1025 (1982), where the court held “a judgment that has been satisfied no longer exists and cannot be attacked either by a motion to strike or to open.” Id. at 505, 450 A.2d at 1026. Although the satisfaction of judgment in this case forever discharged appellants’ obligations on Note 1, they admit to still owing a debt on Note 2, which, obviously, was not satisfied. We will not allow appellants to slide out of a legitimate obligation because of appellees mistakes which ultimately did not harm appellants.

Finally, appellants argue they are entitled to recover attorney’s fees for the allegedly arbitrary and vexatious conduct of appellee in repeatedly making mistakes in filing complaints in confession of judgment on the wrong note. Though noting appellee retarded the disposition of this matter, the trial court stated: “Plaintiffs activities are not sufficiently sinister to support Defendants’ request for an award of attorney fees.” (Slip Op. at 8.) The relevant general rule with regard to counsel fees is that the parties to litigation are responsible for their own fees unless otherwise provided by statutory authority, agreement of the parties or some other recognized exception. Mantell v. Mantell, 384 Pa.Super. 475, 559 A.2d 535 (1989), citing Chatham, Communications, Inc. v. General Press Corp., 463 Pa. 292, 344 A.2d 837 (1975). The Judicial Code sets forth the relevant standard upon which the trial court must rely in determining whether to award counsel fees.

§ 2503 Right of participants to receive counsel fees
The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.

42 Pa.C.S. § 2503(9). Although appellee twice failed to realize it attached and referred to the wrong note in its complaints, we do not find the behavior was arbitrary, vexatious or in bad faith, and thus affirm the denial of counsel fees.

Order affirmed.

      . The trial court did not award counsel fees requested by appellee. The court also noted appellee could not recover any interest from appellants for the period from July 18, 1989 to the present since delays in the case were attributable to appellee.