author: JOHNSON, Judge:

text:
    439 A.2d 748
    COMMONWEALTH of Pennsylvania v. Mildred L. HAWKINS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed Jan. 5, 1982.

      Charles M. Schwartz, Pittsburgh, for appellant.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Appellant was convicted by a jury on eighteen counts of theft by deception, eighteen counts of receiving stolen property, eighteen counts of securing execution of documents by deception and one count of criminal conspiracy. She was sentenced on March 16, 1979 to a period of thirty months probation.

The issues raised by Appellant are (1) whether the lower court erred in refusing to dismiss the information filed against Appellant because of a violation of the statute of limitations, 18 Pa.C.S.A. § 108 and (2) whether the counts of receiving stolen property should have been dismissed due to the statute of limitations on the basis that fraud, as alleged in the information, is not a material element of the crime as required by 18 Pa.C.S.A. § 108(c)(1).

An information, containing a total of seventy-six counts and including seven different criminal statutes, was filed against Appellant on April 11, 1978 pursuant to her involvement in fraudulently obtaining funds from the federal Manpower (now Jobpower) program during 1974 and 1975. The investigation of purported “ghosts” on the Manpower payroll began in June of 1976.

Two cancelled Manpower paychecks, made payable to one Mildred Louise and bearing a second endorsement of Iris J. Communale were discovered in March of 1977. The checks were dated June 6, and June 11, 1975, respectively. The 1974 and 1975 personnel files of Mildred Louise were also received by the district attorney’s office in March of 1977. Verification of the information contained in the applications located in the files and the information found on the two checks produced the following information by April 4, 1977: that no Mildred Louise resided at the address listed on the applications, although a Mildred Hawkins was discovered to reside there; that the social security number listed on the applications was assigned to Mildred Hawkins and that she had been and was employed full-time at a V.A. hospital; that the two cancelled checks appeared to have been issued prior to the commencement of the 1975 summer program and that certain discrepancies existed between the information found on the 1974 and 1975 applications of Mildred Louise, including birthdate, schooling, number of family members and the signatures. On April 5, 1977, a check was made of the V.A. hospital employment records to determine Mildred Hawkins’ job status during 1974 and 1975 ¿nd it was also determined from the Manpower personnel files that Mildred Louise’s alleged Manpower supervisor may not have existed.

On April 11, 1977, information received from the Bureau of Motor Vehicles on Mildred Hawkins revealed that her birthdate did not agree with the birthdates listed on the applications of Mildred Louise. On April 12, 1977, after several unsuccessful attempts to locate Mildred Hawkins, she was interviewed by an investigator from the district attorney’s office. Appellant stated that she recognized the two 1975 cancelled checks and had received the proceeds therefrom. She also stated that she had been employed by the Manpower program in 1974 and 1975. Interviews with Manpower employees, to confirm whether either Mildred Louise or Mildred Hawkins had ever worked in the Manpower programs began at the end of June, 1977. The cancelled paychecks for 1974, issued to Mildred Louise, were received by the district attorney’s office from the bank on June 30, 1977. The remaining cancelled checks for 1975 issued to Mildred Louise were received from the bank in July and August of 1977. It was not conclusively determined until early 1978, when the interviews with Manpower employees had been completed, that neither Mildred Louise nor Mildred Hawkins had worked in any Manpower program. Some of these employees were called to testify before a special investigating grand jury in February of 1978.

I.

The general statute of limitations applicable to the charges upon which Appellant was convicted is two years. 18 Pa.C.S.A. § 108(b)(2). An exception to this two year period is found at 18 Pa.C.S.A. § 108(c)(1) which states:

(c) Exceptions.—If the period prescribed in subsection (b) of this section has expired, a prosecution may nevertheless be commenced for:
(1) Any offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years. (Emphasis added.)

. Because the general two year statute of limitations had run on all of the charges prior to the filing of the information, the district attorney averred in the information that “either fraud or a breach of fiduciary obligation is a material element” of the offenses, satisfying the notice requirement when section 108(c)(1) is invoked. Commonwealth v. Eackles, 286 Pa.Super.Ct. 146, 428 A.2d 614 (1981).

Appellant’s first argument is that the date of the “discovery of the offense[s]” was April 5, 1977, so that by filing the information on April 11, 1978, the Commonwealth failed to commence the action within one year of its “discovery”, therefore barring the action due to the statute of limitations.

We are now faced with defining the term “discovery of the offense”, as set forth in 18 Pa.C.S.A. § 108(c)(1). We have found no Pennsylvania case that has yet defined this term.

“Discovery” has been defined as:
“In a general sense, the ascertainment of that which was previously unknown; the disclosure or coming to light of what was previously hidden; the acquisition of notice or knowledge of given acts or facts; as, in regard to the ‘discovery’ of fraud affecting the running of the statute of limitations, or the granting of a new trial for newly ‘discovered’ evidence.”

Black’s Law Dictionary (5th Ed.1979).

Discovery of the offense has also been defined as “gaining knowledge of or finding out that a penal statute has been violated”. People v. McGreal, 4 Ill.App.3d 312, 321, 278 N.E.2d 504, 510 (App.Ct.1971). The Supreme Court of Kansas has stated that (in a civil case) discovery of the fraud “[i]mplies knowledge, and is not satisfied by mere suspicion of wrong. The suspicion may be such as to call for further investigation, but is not of itself a discovery.” Migenback v. Migenback, 176 Kan. 471, 478, 271 P.2d 782, 787 (1954), quoting Marbourg v. McCormick, 23 Kan. 38, 43 (1879). See also State v. Civella, 368 S.W.2d 444, 451 (Mo.1963).

The Commonwealth has the burden to prove that the discovery of the alleged offenses took place within the year prior to the filing of charges. Commonwealth v. Hoffman, 263 Pa.Super.Ct. 442, 398 A.2d 658 (1979).

By an analysis of the cogent facts listed supra, it is clear that discovery of the offenses did not occur, at the earliest, until Appellant was interviewed on April 12, 1977 and admitted to receiving the two 1975 Manpower checks. The opinion of the lower court goes further and states that discovery of the offenses did not occur until some time in 1978, when, after interviewing numerous Manpower employees, it was determined that no Mildred Louise or Mildred Hawkins had been employed in the program.

Appellant alleges that the Commonwealth “discovered” the offenses on or before April 5, 1977. However, upon analyzing the facts known on that date, we see no basis for this allegation. As of April 5 only a suspicion existed that (1) a crime or crimes had been committed involving one Mildred Louise and (2) that the said Mildred Louise was, in fact, Mildred Hawkins.

The facts known on April 5 indicated that one Mildred Louise was listed on the 1974 and 1975 Manpower applications, that the said party listed herself as unemployed, and that certain discrepancies involving the said person’s age, educational experience and number of family members existed by comparing the two applications. It was also known that the said Mildred Louise had been issued at least two paychecks in 1975, apparently prior to the commencement of the program that year. It was not known for certain at that point in time whether the said Mildred Louise had actually performed work for the program or not. Also, the only connection between Mildred Louise and Mildred Hawkins by April 5 was (1) the use of Appellant’s social security number on the applications, (2) the similarity of the names and (3) the identical residence addresses. Such evidence could not have reached the level of producing the discovery of the offenses until proof of Appellant’s receipt of monies occurred on April 12. For example, a third party named Mildred Louise could have mistakenly used Appellant’s social security number and could have been a legitimate Manpower employee. This error would have been a violation of the Manpower guidelines, but not necessarily a criminal offense. Therefore, until it was discovered that Mildred Hawkins had received proceeds, there was no basis for assuming she, or anyone else, had engaged in any criminal activity.

Finally, discovery of the offenses may not have occurred until sometime in 1978, as determined by the lower court, when it was determined that no individual by the name of either Mildred Louise or Mildred Hawkins had actually performed work in the Manpower program.

We therefore hold that the discovery of the offenses, as required by 18 Pa.C.S.A. § 108(c)(1), did not occur prior to April 12, 1977, when the district attorney’s office was informed by Mildred Hawkins that she had received the proceeds of the two 1975 Manpower paychecks issued to Mildred Louise.

Therefore, Appellant’s first argument is without merit, as the information was brought within one year of the discovery of the offenses.

II.

The second issue is whether fraud is a material element of the crime of receiving stolen property, as required under 18 Pa.C.S.A. § 108(c)(1), for the extension of the general statute of limitations.

Receiving stolen property, 18 Pa.C.S.A. § 3925, states:

§ 3925. Receiving stolen property
(a) Offense defined.—A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.
(b) Definition.—As used in this section the word “receiving ” means acquiring possession, control or title, or lending on the security of the property.

Fraud is characterized by a false representation of a material matter made with knowledge of its falsity and with the intent to deceive. Commonwealth v. Eackles, supra. A material element of an offense is defined in 18 Pa.C.S.A. § 103 as:

“Material element of an offense.” An element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with:
(1) the harm or evil incident to conduct, sought to be prevented by the law defining the offense; or
(2) the existence of a justification or excuse for such conduct.

It is clear that because breach of a fiduciary obligation is not part of the instant case, fraud must be a material element of the offense in order to allow the two year statute of limitations to be extended, as per section 108(c)(1).

The harm or evil sought to be prevented by section 3925 is the receiving, retaining or disposing of another’s movable property knowing or believing it to be stolen. Clearly, fraud is not required to prove the elements of the crime. The Commonwealth need only establish (1) that the goods were stolen, (2) that defendant received such goods and (3) that defendant knew them to be stolen or had reasonable cause to know that they were stolen. Commonwealth v. Gore, 267 Pa.Super.Ct. 419, 406 A.2d 1112 (1979). Proof of fraud is not essential to such a conviction. Fraud is therefore not the harm or evil sought to be prevented, nor does it necessarily involve justification or excuse for such conduct. See Commonwealth v. Eackles, supra (fraud not a material element of theft by unlawful taking).

The Commonwealth argues that Commonwealth v. Farrar, 271 Pa.Super.Ct. 434, 413 A.2d 1094 (1979) determined that receiving stolen property was a continuing offense, terminating only when the stolen property is taken from the receiver.

We believe, however, that the Commonwealth’s reliance on Farrar to establish a “continuing offense” is misplaced. The Farrar court considered a fact situation where the defendant had participated in the removal of antique china closets and an antique table from a private home in Maryland. Some six months later, the antiques were transported to Pennsylvania when the defendant and her husband removed their residence to this state. Nearly two years later, the stolen items were recovered from the Pennsylvania residence of the defendant, and eventually returned to their rightful owner in Maryland. In relying on the earlier case of Commonwealth v. Ellis, 233 Pa.Super. 169, 173 n.3, 335 A.2d 512, 515 n.3 (1975), the Farrar court found that the legislature’s inclusion of a probation against retaining and disposing of stolen property makes violation of § 3925 an “ongoing” offense. The court reasoned that since the defendant in Farrar “retained stolen property in Pennsylvania,” the lower court had jurisdiction to try her and the offense was a “continuing” one which did not terminate until the stolen property was taken from her some two and one-half years after the original theft. Commonwealth v. Farrar, Id., 271 Pa.Super. at 441-42, 413 A.2d at 1098.

We are unable to conclude, in the instant case, that there has been any “retention” of property beyond the point prior to the commencement of the investigation when the Appellant, Mildred Hawkins, received the proceeds from the checks. We distinguish Farrar not because, as the Commonwealth suggests, the items there involved were “unique”, but quite simply because Farrar involved property that was retained, and the instant case does not.

Therefore, the convictions for receiving stolen property are reversed. The remaining convictions on all counts of theft by deception, securing execution of documents by deception and criminal conspiracy are affirmed.

      . 18 Pa.C.S.A. § 3922.

      . Id., § 3925.

      . Id., § 4114.

      . Id., § 903.

      . Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973; repealed from Title 18 and transferred to 42 Pa.C.S.A. § 5552(c)(1) by Act of 1976, July 9, P.L. 586, No. 142, eff. June 27, 1978. Also, section 25(c) of Act 1976, July 9, P.L. 586, No. 142, generally effective June 27, 1978, provides as follows:
      “(c) The period of limitations specified in this act with respect to crimes and offenses shall not apply to crimes and offenses committed before the effective date of Title 18 (relating to crimes and offenses) and the prior statutes of limitation are hereby continued in force as to such crimes and offenses.”

      . This court in Commonwealth v. Maleno, 267 Pa.Super.Ct. 560, 407 A.2d 51 (1979), did discuss 18 Pa.C.S.A. § 108(c)(1). However, the analysis found in Maleno does not assist us in defining “discovery of the offense”.


source: Caselaw Access Project

license: Public Domain

text:
    439 A.2d 752
    COMMONWEALTH of Pennsylvania, v. Carlos EDNEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1981.
    Filed Jan. 5, 1982.
    Petition for Allowance of Appeal Denied March 26, 1982.

      Kalvin Kahn, Philadelphia, for appellant.
    Kenneth S. Gallant, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant was convicted of aggravated assault and theft by unlawful taking or disposition in a non-jury trial on October 2, 1979 and later sentenced to one to five years imprisonment for assault with sentence suspended on the theft conviction. He argues on appeal that (1) the verdict was contrary to the weight and sufficiency of the evidence, (2) that it was error for the lower court to refuse to grant a motion to dismiss the informations which were allegedly based on a defective complaint and (3) ineffective assistance of both trial and pre-trial counsel.

Viewing the evidence in the light most favorable to the Commonwealth, it indicates that on March 30, 1979, Appellant entered the Kensington Grille in Philadelphia at approximately 8:30 a. m., along with another party, and after engaging in an argument with the bartender, struck him in the face, causing a concussion and sinus fractures, requiring the bartender’s hospitalization for eleven days. An eyewitness testified that Appellant then leaned over the bar, opened the cash register and removed money from it. Appellant was arrested on April 7, 1979.

Appellant alleges that it was error for the lower court not to grant his request, as to the theft conviction, for a new trial based on his claim that the verdict was contrary to the weight of the evidence and based on insufficient evidence. He bases this claim in part on the testimony of a defense witness, present at the crime scene, who stated that he never heard the cash register open. Where evidence is conflicting, credibility of the witnesses is solely within the province of the trier of fact and will not be reviewed on appeal. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). And if the finding is supported by the record, the trial court’s denial of a motion for a new trial will not be disturbed on a claim that the verdict is against the weight of the evidence. Commonwealth v. Yohn, 271 Pa.Super.Ct. 537, 414 A.2d 383 (1979). Also, the granting of a new trial on the ground that the verdict is against the weight of the evidence is committed to the sound discretion of the trial court. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972). Finally, evidence is sufficient to sustain a conviction if it supports the verdict beyond a reasonable doubt when construed in the light most favorable to the Commonwealth, with all proper inferences drawn favoring the Commonwealth. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981). We find the evidence sufficient and Appellant’s argument meritless.

The second issue concerns whether the lower court erred in refusing to grant Appellant’s motion to dismiss the infor-mations due to an alleged defect in the criminal complaint,

The complaint, dated March 30, 1979 was based on information received from the victim, Jose Canteras, and signed by the detective who took the victim’s statement. The designation under the printed signature line on which the detective had signed his name had the typed word “For” appearing directly before the printed word “Complainant”. Appellant alleges this was a defect because the victim, Jose Canteras, did not sign the complaint. We disagree.

The affiant in this case was Detective Welsh, not the victim. The form used is in substantial compliance with that found in Pa.R.Crim.P., Rule 133(A) for a police complaint. It fully informed Appellant of the nature of the crimes charged and was held by a district magistrate to have sufficiently established probable cause so that an arrest warrant could be issued.

The rules of criminal procedure do not require that a private complainant sign a complaint when the affiant is a police officer. See Pa.R.Crim.P., Rules 119, 132, 133(A).

In all, we do not find Appellant’s argument to be of merit, as no defect existed.

Appellant’s final argument involves ineffective assistance charged against his former counsel. Appellant was represented pre-trial by a public defender, and at trial and post-trial by a court appointed attorney who was permitted to withdraw after filing this appeal and writing the initial appeal brief. Appellant’s current appeal counsel alleges ineffective assistance against pre-trial counsel for failing to raise the issue of the defective complaint at the proper time. He also alleges that trial counsel was ineffective for failing to preserve the issues of the defective complaint and pre-trial counsel’s ineffectiveness.

The general rule is that ineffective assistance must be raised at the earliest opportunity or it will be waived. Commonwealth v. Hubbard, 472 Pa. 259 n. 6, 372 A.2d 687 n. 6 (1977). However, an exception to the general rule provides that a waiver of the issue will not be imputed to the accused, if counsel who was allegedly ineffective was also counsel when the issue should have first been raised. Commonwealth v. Lee, 254 Pa.Super.Ct. 495, 386 A.2d 59 (1978), citing Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974).

As stated in Commonwealth v. Jennings, 285 Pa.Super.Ct. 295, 298, 427 A.2d 231, 232 (1981);

“Before reaching the merits of the claim, we note that ‘counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.’ Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). However, when confronted with a claim of ineffectiveness of counsel, this Court utilizes a two-step analysis. The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 95, 413 A.2d 1025, 1028 (1980); Commonwealth v. Sherard, supra.

As we have determined that no defect existed, the first step eliminates Appellant’s argument. The issue of the defect has no arguable merit and so pre-trial counsel was not ineffective. It is clear that if pre-trial counsel is deemed not to have been ineffective, then trial counsel could not have been ineffective for not raising the ineffectiveness of the pre-trial counsel. Therefore, trial counsel was not ineffective and Appellant’s claim is meritless.

Judgment of sentence entered December 20, 1979 is affirmed.

      . 18 Pa.C.S.A. § 2702.

      . Id., § 3921.

      . It seems clear that the affidavit of Detective Welsh is sufficient to satisfy the requirements of Pa.R.Crim.P., Rule 119(a). Since the arrest warrant may not issue but upon probable cause supported by an affidavit sworn to before the issuing authority, it makes no sense that a police officer would make it appear that he is “swearing for” an absent victim. It is the duty and function of the issuing authority to satisfy himself or herself that probable cause exists based solely upon the information provided by the affiant. To the extent that a practice may have developed that Police Complaints to support an arrest warrant are couched in language to make it appear that the Complaint is, in fact, that of another person not appearing before the issuing authority, the practice serves no useful purpose, is contrary to both the spirit and intent of the rules, and is hereby condemned.


author: MONTEMURO, Judge: SHERTZ, Judge,

text:
    439 A.2d 756
    COMMONWEALTH of Pennsylvania, v. June FAVA, Appellant.
    Superior Court of Pennsylvania.
    Argued June 1, 1981.
    Filed Jan. 5, 1982.
    Petition for Allowance of Appeal Granted May 3, 1982.

      Richard J. Orloski, Allentown, for appellant.
    Ann Keck, Assistant District Attorney, Allentown, for Commonwealth, appellee.
    Before McEWEN, MONTEMURO and SHERTZ, JJ.
   MONTEMURO, Judge:

This is an appeal from the Judgment of Sentence by the court below following appellant’s conviction, by a jury, of possession, possession with intent to deliver, and delivery of a controlled substance; to wit, phencyclidine (Hereinafter PCP). On appeal, the central issue is whether or not the court below erred in refusing to grant defendant’s request for a writ of habeas corpus ad testificandum. For the reasons discussed below, we agree with the appellant on this issue and, accordingly, we reverse and remand for a new trial.

In this case, the defendant was convicted of possession of PCP, possession with intent to deliver PCP and delivery of PCP. The Commonwealth’s case rested entirely on the testimony of Daniel Licklider, an undercover agent for the Pa. Dept, of Justice, Bureau of Drug Control, and Tony Jaindl, an alleged accomplice to the sale of PCP. Agent Licklider testified that on June 2, 1978, Tony Jaindl directed him to the 900 Block of North 7th Street in Allentown, Pennsylvania, took $245.00 from agent Licklider into the corner house on that street, and returned with four packets of the PCP. Agent Licklider was forbidden to enter the house. There is some controversy as to when Tony Jaindl first implicated the defendant (appellant herein), but his testimony at trial was that June Fava supplied him with the drug. (“Controlled substance” under Schedule III of the Controlled Substance, Drug, Device, and Cosmetic Act.) The house that Tony Jaindl entered on North 7th Street is the residence of the appellant.

On the first day of the trial, appellant’s counsel asked Tony Jaindl on cross-examination if he knew Guy Camioni, a one-time boarder at the defendant’s residence. Tony Jaindl admitted knowing Mr. Camioni, but stated that he had never purchased any drugs from him. Mr. Camioni was at that time incarcerated in Lehigh County Prison, having been previously convicted of possession and sale of marijuana.

At the close of the second day of trial, the assistant district attorney prosecuting the case went with Agent Licklider to Lehigh County Prison to intervene Guy Camioni. On the record, but out of hearing of the jury, on the opening of the third day of trial, Agent Licklider and the prosecuting district attorney told the court of their interview. Camioni apparently admitted living at the Fava residence and to having once sold some marijuana to Tony Jaindl. Camioni did not, however, specify on which dates he lived at the residence nor did he take responsibility for selling any PCP on the date in question here. Agent Licklider said he asked Caxnioni what his response would be if he were called to testify. According to Licklider, Camioni’s response was, “I could take the fifth amendment. I’m already in prison and nobody can do anything to me anyhow.” (Emphasis added.)

Appellant contends, inter alia, that the court erred in refusing to issue a writ of habeas corpus ad testificandum at this juncture in order to compel the presence of Guy Camioni at court for an interview and possibly to testify at trial. Appellee counters with the argument that since Guy Cam-ioni was going to assert his constitutional privilege against self-incrimination, the trial judge was well within the bounds of judicial discretion in refusing to issue the writ. For this proposition appellee relies on Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971).

The court in Greene held, over a strong dissent by Justice Roberts, that a witness should not be placed on the stand for the purpose of having him exercise his privilege against self-incrimination. Citing Bowles v. U. S., 439 F.2d 536 (D.C.Cir.1970) as an analogous precedent, the Greene court extended this limitation which heretofore had applied only to the prosecution to witnesses called for the defense. The rationale for this extension was the basic principle that the jury may not draw any inference from a witness’ exercise of his constitutional rights, whether the inference be favorable to the prosecution or the defense. Bowles, supra.

The Bowles court, with Judge Bazelon dissenting, opined that danger may exist in a witness’ invocation of the Fifth Amendment in the presence of a jury in that there may result a disproportionate impact on the jury’s deliberation. The court stated:

The jury may think it high courtroom drama of probative significance when a witness “takes the Fifth.” In reality, the probative value of the event is almost entirely undercut by the absence of any requirement that the witness justify his fear of incrimination and by the fact that it is a form of evidence not subject to cross-examination. Bowles, 439 F.2d at 541 (citation omitted).

Judge Bazelon found the dangers mitigated by juror’s natural skepticism of any “buck passing” (Id. at 545, p. 13) and the prosecutor’s right to “demonstrate to the jury that the person accused by the defendant is someone on whom he has prevailed (through friendship, or by threats of injury) to come to court and then refuse to testify.” (Id.)

While there remains some question about the ultimate wisdom of the decision in Greene; the case before us presents a collateral question, which is the degree of certainty required that a witness will in fact assert his privilege to remain silent. In this case, the court relied on the hearsay testimony of the Assistant District Attorney and the drug enforcement agent that to the best of their recollection the proposed witness told them “I could take the fifth amendment.” (notes of Testimony at page 342, emphasis added.) At the time, the witness was incarcerated at the Lehigh County Prison which is located approximately one-half block from the courthouse. In light of such close proximity, clearly the type of testimony offered with reference to the witness’ alleged assertion of his Fifth Amendment privilege constituted an insufficient basis for refusal by the court below to issue the writ of habeas corpus ad testificandum.

In U. S. v. Johnson, 488 F.2d 1206 (1st Cir. 1973) a case which also relied on Bowles, the court stated:

. . . obviously, before excluding a witness, the court must first establish reliably that the witness will claim the privilege and the extent and validity of the claim. Here the court wisely held a voir dire at which Johnson’s (defendant) counsel was invited to question the proposed witness under oath and on the record. Only after Perez (the witness) had testified that he would claim the privilege comprehensively did the court rule to exclude him. Id. at 1211.

It is true that Johnson was not decided under Pennsylvania law and is therefore not controlling in the instant action. Nevertheless, the rationale of Johnson does not run counter to the relevant decisions in Pennsylvania. In fact, in all appropriate cases since Greene (including Greene itself), it is clear that the proposed witness had affirmed on the record (personally or by counsel) his intention to assert his constitutional privilege against self-incrimination. Whatever the fears are of allowing a defense witness in a criminal case to consistently plead his right to silence, we find equally ominous the decision of a court to exclude a possible witness for the defense without reliably determining whether or not the witness will refuse to testify.

For the foregoing reasons, we reverse and remand to the court below for a new trial.

McEWEN, J., concurs in the result.

SHERTZ, J., files dissenting opinion.

Decision was rendered prior to SHERTZ, J., leaving the bench of the Superior Court of Pennsylvania.

SHERTZ, Judge,

dissenting:

The question before this Court is, as aptly stated by the majority: whether or not the court below erred, that is, abuse its discretion, in refusing to grant Appellant’s request for a writ of habeas corpus ad testificandum? The record establishes that the lower court did not abuse its discretion in denying the request for the writ and I would therefore affirm.

The oral request by defense counsel for a writ of habeas corpus ad testificandum was made on the third and final day of trial despite the fact that counsel was aware, prior thereto, of Mr. Camioni and his whereabouts. This is evidenced by the fact that it was defense counsel, during the course of his cross-examination of the Commonwealth’s witness, Tony Jaindl, who initially introduced Camioni’s name, as well as his whereabouts, in the trial. N.T. at 76. In fact, it is obvious from the record that defense counsel’s trial strategy involved shifting criminal responsibility from the defendant to Camioni. N.T. at 75, 76. Counsel had sufficient opportunity to interview Camioni before and during the trial, to determine whether counsel wished to call Cam-ioni to testify on Appellant’s behalf. If such an interview had disclosed that Mr. Camioni could provide testimony beneficial to the defense, counsel could have pursued the proper procedure, of which he was well aware, as demonstrated by counsel’s last minute invocation of same, to secure the witness. Defense counsel had the opportunity and responsibility to question Camioni and to arrange for his appearance prior to trial. Under such circumstances, Appellant ought not now be allowed to complain she was improperly denied an opportunity to interview and possibly obtain testimony from Mr. Camioni.

It is well settled in Pennsylvania that motions to secure witnesses are within the discretion of the trial court. Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979). The Sullivan case involved the trial court’s denial of defendant’s motion, in a murder prosecution, to have a witness brought from another city, at the Commonwealth’s expense, to testify on his behalf. The motion was made while the trial was in progress. Our Supreme Court held that the trial court had not abused its discretion in denying the motion as being untimely filed. Id., 484 Pa. at 135, 398 A.2d at 980. Accord: Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976). In the instant case, defense counsel had knowledge of the existence and possible importance of the witness and had an opportunity to request a writ of habeas corpus ad testificandum. There was no denial of defendant’s constitutional right to have process for obtaining witnesses in her favor inasmuch as defendant had more than five months, from the time of her arrest to the time of trial, to arrange for the appearance of the witness, but failed to request compulsory process until the final day of trial. See also: Commonwealth ex rel. Jennings v. Maroney, 179 Pa.Super.Ct. 571, 118 A.2d 287 (1955).

“The court denied the motion, finding that it was untimely. The motion was a proper subject to a pre-trial motion. See Pa.R.Crim.P. 306. The motion was untimely unless there was no previous opportunity to make it or Appellant or his attorney were unaware of the grounds for it. Pa.R.Crim.P. 307.”

The absence of a particular witness, or the denial of permission to call him, does not, in itself, constitute a denial of compulsory process unless it also appears that the witness, if called, would have been favorable to the accused. Ex Parte Smith, 72 F.Supp. 935 (M.D.Pa.1947). Implicit in the accused’s right “to have compulsory process for obtaining witnesses in his favor” is the requirement that the defendant establish that the person to be produced has relevant or material testimony on the issues in question. Commonwealth v. Coffey, 230 Pa.Super.Ct. 49, 52, 331 A.2d 829, 831 (1974). In Coffey, this Court held that the trial court’s refusal to require the production of a witness, who was held as prisoner by the federal authorities, was not improper absent specific information as to what testimony the witness had to offer.

During the in camera hearing in the instant action, the court closely questioned the assistant district attorney, N.T. 335, 336, and the drug enforcement agent, N.T. 339, 341, concerning their interview with Mr. Camioni, in order to ascertain whether anything exculpatory to the accused was said. Neither they, nor defense counsel, gave any indication that Camioni had any relevant or admissible testimony to offer. Only then, when the court was convinced that the witness had said nothing which could be construed as exculpatory, did it deny the request for the writ.

The majority erroneously concludes that the lower court refused to issue the writ solely on the basis of the witness’ possible assertion of his fifth amendment privilege against self incrimination. The record does not support this conclusion. The lower court, in denying the writ, stated:

“And the witness is available to the defense. He knows where he is and he knows the procedure to be taken with respect to securing a witness from prison. I am not so sure that there is a burden on the court to produce witnesses for the defendant or the Commonwealth. The Commonwealth isn’t hiding a witness. The witness’s location is known.” N.T. at 344.

Clearly, the lower court denied the request because it was untimely made and because the defense had a prior opportunity to secure the appearance of this witness. Consequently, the majority’s analysis of the degree of certainty required, in order to justify the exclusion of a witness on grounds that he will claim his privilege to remain silent, is neither pertinent nor dispositive.

      . 35 P.S. § 780-113(a)(30).

      . 35 P.S. § 780-113(a)(30).

      . 35 P.S. § 780-113(a)(30).

      . Deciding as we do, we have no occasion to address appellant’s other claims that (1) the trial court erred in refusing to compel agent Licklider’s testimony as an exception to the hearsay rule; (2) that exclusion of the testimony of the clerk of court about Guy Camioni’s prior illegal drug sales convictions was improper; (3) that Jaindl’s testimony of prior drug dealings with defendant should have been excluded; (4) that the court interfered with counsel’s direct examination of the defendant; (5) that a conviction based solely on the uncorroborated testimony of an alleged accomplice denied defendant her due process of law under the Pa. and U. S. constitutions; (6) that Commonwealth failed to prove beyond a reasonable doubt that defendant was not licensed to see drugs under the Controlled Substance, Drug, Device and Cosmetic Act; (7) that evidence tending to discredit defendant’s claim of alibi was procedurally ineffective; and (8) that the instructions to the jury were prejudicial and incomplete. We would note, however, that these collateral claims are without merit and could be disposed of under established Pennsylvania law

      . See Commonwealth v. Pritchard, 270 Pa.Super. 461 (1980), 411 A.2d 810 (1980) (Judge Nix for the majority at 814): “Regardless of our view of the soundness of that decision (see 285 A.2d at 867 Roberts, J., joined by O’Brien, J., dissenting). Greene controls, and the issue must be resolved against appellant.” (emphasis added)

      . See Commonwealth v. Greene, supra; Commonwealth v. Rolen, 486 Pa. 573, 406 A.2d 1039 (1979); Commonwealth v. Duvall, 277 Pa.Super. 363, 419 A.2d 1187 (1980); Commonwealth v. Terenda, 451 Pa. 116, 301 A.2d 625 (1973); Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973).

      . I agree with the majority that Appellant’s other claims are without merit.

      . The majority states, “. .. the court relied on the hearsay testimony of the Assistant District Attorney and the drug enforcement agent to that effect that to the best of their recollection the proposed witness had told them T could take the fifth amendment’.” at 758. The record does not support this conclusion. The Assistant District Attorney testified that the witness said, “he would take the fifth” (emphasis supplied). N.T. at 334.


author: SHERTZ, Judge:

text:
    439 A.2d 760
    Helen B. EANNARINO, v. August V. EANNARINO, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1981.
    Filed Jan. 5, 1982.

      Stewart B. Barmen, Pittsburgh, for appellant.
    John L. Bailey, Pittsburgh, for appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SHERTZ, Judge:

This is an appeal from an Order compelling Appellant to make alimony payments to Appellee, his ex-wife, in accordance with a separation agreement dated June 5, 1972. The Chancellor concluded that social security benefits to Appellant were to be considered as “net earnings after taxes” under the terms of the agreement. We agree and therefore affirm.

On March 6, 1978, Appellee brought an action in equity to compel Appellant to provide income tax returns and to make payments in accordance with the separation agreement. Following a hearing, the Chancellor entered an adjudication and decree nisi, on March 20, 1979, ordering Appellant to make payments in accordance with the separation agreement, which payments were calculated by including social security benefits as net income after taxes. On September 17,1979, the Chancellor entered a supplemental adjudication ordering Appellant to pay Appellee the sum of $7,560.00 based upon a monthly support payment of $360.00 for the period from January 1, 1978, through September, 1979. Appellant filed exceptions to the supplemental adjudication contending that the court erred in including the social security benefits as net income after taxes.

After argument on the exceptions, Appellant filed a petition for reconsideration and on January 7, 1980, the Chancellor entered a Supplemental Decree Nisi on reconsideration, reducing the arrearage to $6,192.40 based on social security payments received directly by Appellee as a consequence of contributions made by Appellant during his years of employment. Appellant timely filed exceptions to the Supplemental Decree Nisi. On March 12, 1980, the court en banc dismissed Appellant’s exceptions and ordered that the Supplemental Decree Nisi be entered as a final decree. The order of March 12, 1980, was docketed on March 13, 1980, as required by Pa.R.A.P. 301(c). See Murray v. Abcon, Inc., 291 Pa.Super. 428, 435 A.2d 1301 (1981). This appeal followed.

The sole issue before us on appeal is whether, under the terms of the agreement of June 5, 1972, Appellant’s social security and pension benefits should be included as “net income after taxes.”

Appellant and Appellee were divorced in July, 1972. On June 5, 1972, they entered into an Agreement which provides inter alia:

“5. It is hereby stipulated and agreed between the parties that the support payments to be provided for the Wife are based on the Husband’s net income after taxes as shown on his 1970 Federal Income Tax Return. The support payments herein provided for the Wife shall be adjusted upward or downward in . relation to the Husband’s income, so that for each 20% increase or decrease in the Husband’s net earnings after taxes, the Wife shall receive a respective 20% increase or decrease in her support payments.
5. (a) For purposes of this Agreement, ‘net earnings after taxes’ shall be exclusive of sums deducted because of support payments to Wife herein provided, and shall include all income whether from employment, private business or self-employment, and investments, whether or not tax-exempt.
5. (b) Husband will, each calendar year, on or before April 15th thereof, furnish to Wife or her representative, copy of Federal Income Tax Return, Profit and Loss Statement, and Capital Accounts Statement.”

In 1978 Appellant retired from his position as a corporate accountant. Thereafter, he began to receive social security benefits.

Appellant contends that the phrase “net earnings” requires judicial construction and argues that, since social security benefits were not specifically included in the definition of “net earnings,” the parties, being aware of the upcoming retirement of Appellant, intended that they be excluded. Appellant also argues that the intention of the parties to exclude social security benefits can be inferred from the fact that Appellee could not expect Appellant to give up one-half of his retirement income. We conclude, however, that we need not construe nor interpret “net earnings” because its meaning is clear from the express language of the Agreement. The definition of “net earnings after taxes”, in paragraph 5(a) of the Agreement, referring as it does to “all income”, is broad enough to include social security benefits.

When parties define the terms used in a contract, those definitions govern the construction of the contract. Bey v. Muldoon, 223 F.Supp. 489 (E.D. Pa. 1963), aff’d, 354 F.2d 1005 (3rd Cir.), cert. denied, 384 U.S. 987, 86 S.Ct. 1888, 16 L.Ed.2d 1004. In construing a contract, a court’s paramount consideration is the intent of the parties. If the language of the contract is unambiguous and susceptible of only one interpretation, a court will determine the parties’ intention on the basis of the clear wording of the contract. O'Farrell v. Steel City Piping Co., 266 Pa.Super.Ct. 219, 403 A.2d 1319 (1978), Accord: Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001 (3d Cir. 1980).

Appellant cites several cases from other jurisdictions interpreting the meaning of various terms such as “earnings,” “annual earned income” and “net earnings after taxes.” These cases are inapposite, however, since, in each, judicial interpretation of the contractual term was required because the contract provided no definition. As previously stated, the contract here defines the term “net earnings” and therefore no interpretation is required. Similarly, Appellant’s reliance on Department of Labor and Industry v. Unemployment Comp. Bd. of Rev., 203 Pa.Super.Ct. 183, 199 A.2d 474 (1964), is misplaced inasmuch as it concerns the construction of “net earnings” under Pennsylvania Unemployment Compensation Law, wherein the term was not defined by the legislature.

Affirmed.

Decision was rendered prior to SHERTZ, J., leaving the bench of the Superior Court of Pennsylvania.

      . Appellant argues for the first time on appeal that the Chancellor abused his discretion in refusing to excuse or to reduce alimony payments based on the grounds of impossibility and commercial unreasonableness. Since this issue was not raised before the Chancellor, we decline to consider it here. Com. ex rel. Bulson v. Bulson, 278 Pa.Super.Ct. 6, 419 A.2d 1327 (1980).


text:
    439 A.2d 762
    Charles A. HASSLER and Jean S. Hassler, his wife, v. COLUMBIA GAS TRANSMISSION CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1981.
    Filed Jan. 5, 1982.

      Stephen D. Marriner, Jr., Washington, for appellant.
    H. Terry Grimes, Waynesburg, for appellees.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   SHERTZ, Judge:

In this equity action Appellant, Columbia Gas Transmission Corporation, appeals from the May 15, 1980, court en banc per curiam order dismissing exceptions to the Chancellor’s order of December 27, 1979. Because no final decree has been entered on the docket, we cannot reach the merits and must quash the appeal.

Orders dismissing exceptions following non jury trials are interlocutory and nonappealable until docketed. Heffner v. Bock, 287 Pa.Super.Ct. 345, 430 A.2d 318 (1981); Lashner v. Redevelopment Authority of the City of Philadelphia, 286 Pa.Super.Ct. 549, 429 A.2d 659 (1981); Slaseman v. Myers, 285 Pa.Super.Ct. 167, 427 A.2d 165 (1981); Penstan Supply, Inc. v. Hay, 283 Pa.Super.Ct. 558, 424 A.2d 950 (1981). Similarly, orders dismissing post-trial motions following jury trials are interlocutory and nonappealable until entry of final judgment. See Slagter v. Thrifty Clean, Inc. (Slagter v. Mix), 441 Pa. 272, 272 A.2d 885 (1971); Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa.Super. 402, 435 A.2d 1288 (1981); Brogley v. Chambersburg Engineering Co., 283 Pa.Super.Ct. 562, 424 A.2d 952 (1981).

In Murray v. Abcon, Inc., 291 Pa.Super. 428, 435 A.2d 1301 (1981), this court held that “the equity procedures are sufficiently analogous to those in other civil cases, See Pa.R.Civ.P. 1501 and Explanatory Note to Pa.R.Civ.P. 227.1, to require that a final decree be entered on the docket as a condition precedent to appeal.” (Citations omitted). Based on this authority, we are constrained to quash this appeal because no final decree was entered.

Appeal quashed.

Decision was rendered prior to SHERTZ and DiSALLE, JJ., leaving the bench of the Superior Court of Pennsylvania.

      . On December 27, 1979, the Chancellor entered an order denying a petition to vacate an arbitration award. Although identified as an order, it is apparent from the record that the Chancellor intended the order of December 27, 1979 to constitute an adjudication and decree nisi.

      . In Black Top Paving Co., Inc. v. John Carlo, Inc., et al., 292 Pa.Super. 404, 437 A.2d 446 (1981), we invited the Rules Committee to add a comment to Pa.R.Civ.P. 1038 emphasizing that an appeal cannot be taken to this court from an order denying exceptions to a non-jury verdict. We invite the Committee to add a similar comment to Pa.R.Civ.P. 1519. We note that such a comment would be particularly useful to the bar, since prior to Murray the requirement that a party must praecipe for a final decree following the denial of exceptions to a decree nisi was not firmly established.


author: WATKINS, Judge:

text:
    439 A.2d 763
    The BELL TELEPHONE COMPANY OF PENNSYLVANIA, v. UNI-LITE, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued March 20, 1980.
    Filed Jan. 5, 1982.

      Robert M. Fellheimer, Philadelphia, for appellant.
    Jerome Shestack, Philadelphia, for appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from the order of the Court of Common Pleas of Bucks County, Civil Action, involving the defendant’s appeal from a decision of the court below which granted plaintiff a summary judgment based on the court’s determination that it lacked jurisdiction over the subject matter of the defendant’s defense.

Plaintiff, Bell Telephone Company of Pennsylvania, initiated a Complaint in Assumpsit against the defendant, a telecommunications customer of plaintiff’s, alleging that the defendant owed the plaintiff $10,169.19 for telephone service at defendant’s place of business located at 1615 E. Darby Road in Havertown, PA of which $7,000 had been paid leaving a balance due of $3,196.19. The defendant filed an Answer and New Matter to the Complaint. The Answer admitted that plaintiff had provided telephone service to defendant at number SU9-0585 from October 16, 1974 to December 3, 1974. It also admitted that the defendant paid plaintiff $7,000 of the amount claimed to be due by plaintiff but denied that the defendant owed $3,196.19 for reasons appearing in its New Matter. In its New Matter the defendant alleged that it had requested plaintiff to install Wide Area Telephone Service (“WATS service”) and that it believes that had plaintiff done so its billing for the period in question would have been substantially less than the $10,169.19 amount. Plaintiff then filed a Reply to defendant’s New Matter in which it alleged that it had informed defendant that prior to the installation of said WATS service a security deposit would be required which defendant failed to pay. Plaintiff then filed a Motion for Summary Judgment in which it alleged that defendant’s New Matter raised a defense to the action which was not within the jurisdiction of the court but was within the jurisdiction of the Pennsylvania Public Utility Commission since the defense raised questions relative to telephone service rates. The court below agreed with plaintiff and granted its Motion for Summary Judgment. The defendant appealed.

A summary judgment may be granted where the pleadings, interrogatories, depositions, affidavits, answers to interrogatories and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa. Rules of Civil Pro. 1035. Ruhe v. Kroger Co., 425 Pa. 213, 228 A.2d 750 (1967). A review of the pleadings and supporting affidavits makes it clear that in the instant case there is no genuine issue as to any material fact involved here. Defendant’s defense assumes that plaintiff had some obligation to provide WATS service to defendant or that plaintiff was obligated in some way to apply WATS telephone rates as the lowest applicable rate for the telephone service provided to defendant. However, the Public Utility Commission has exclusive jurisdiction over the reasonableness, adequacy and sufficiency of public utility services. 66 Pa.C.S.A. 501 et seq. Elkin v. The Bell Telephone Company of Pennsylvania, 247 Pa.Superior Ct. 505, 372 A.2d 1203 (1977). Since plaintiff is a public utility subject to the jurisdiction of the Public Utility Commission it is for the Public Utility Commission to determine initially whether the service provided by plaintiff to defendant fell short of the statutory standard required of it. Only after findings by the Public Utility Commission adverse to plaintiff could the lower court proceed to determine the questions of liability and damages. Bell Telephone Company v. Sanner, 248 Pa.Superior Ct 273, 375 A.2d 93 (1977) . The defendant attempts to distinguish Sanner by pointing out that in that case defendant’s defense to a claim for unpaid telephone bills was that the service was so faulty so as to be of no value. The defendant also cites the cases of Feingold v. Bell Telephone Co. of Pa., 477 Pa. 1, 383 A.2d 791 (1978) and Behrend v. Bell Telephone Co., 242 Pa.Superior Ct. 47, 363 A.2d 1152 (1976) vacated and remanded on other grounds at 473 Pa. 320, 374 A.2d 536 (1977) which stand for the proposition that courts retain jurisdiction over a suit for damages based on negligence or breach of contract wherein a utility’s performance of its legally imposed and contractually adopted obligations are examined and applied to a given set of facts. In those cases the courts were found to have original jurisdiction over claims for failure of the telephone company to render service. Since the reasonableness or adequacy of the telephone company’s methods of providing service were not before the court in those cases the courts rather than the Public Utility Commission retained jurisdiction over the disputes. The instant case, however, is closer to the factual situations in Elkin and Sanner, which involved disputes over the value of the services received, rather than disputes over a failure of service as was the case in Behrend and Feingold. Matters relating to the tariff, the necessity of equipment, deposits and the use of various types of service are peculiarly within the expertise of the Public Utility Commission and, as such, are outside the original jurisdiction of the courts. Byer v. Peoples Natural Gas Company, 251 Pa.Superior Ct. 75, 380 A.2d 383 (1977). Despite defendant’s assertions we find that the instant case is governed by the holding in Sanner, supra, as defendant’s claim in our case also concerns a dispute as to the reasonableness and methods of the services provided by the utility to the defendant. We hold that the court below was correct in granting the summary judgment to the plaintiff.

Order affirmed.


author: WATKINS, Judge: CAVANAUGH, Judge:

text:
    439 A.2d 765
    COMMONWEALTH of Pennsylvania v. Leon WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1980.
    Filed Jan. 5, 1982.

      Arthur J. King, Assistant Public Defender, Norristown, for appellant.
    David M. McGlaughlin, Assistant District Attorney, Nor-ristown, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Montgomery County, Criminal Division, and involves the defendant-appellant’s appeal of his convictions by a jury of rape, simple assault-menace, and involuntary deviate sexual intercourse. He was acquitted of terroristic threats and kidnapping. Demurrers were sustained on charges of unlawful restraint, false imprisonment and simple assault-attempted. Verdicts of not guilty were directed on the charge of indecent assault.

On March 3, 1978 at approximately 7:15 P.M., Dolores Contreras, a student at Temple University, was standing on the corner of North Broad and Norris Streets in Philadelphia waiting for a bus which would take her into Center City. She planned to catch a bus at the Center City terminal which would take her to Alabama where she planned to visit her sister. It had been snowing heavily at the time for several hours and the buses were running late. At the above-mentioned time the defendant drove past Ms. Contreras in his automobile and asked her if she wanted a ride. She declined. The defendant turned, proceeded north on Broad Street, turned around, and within a few moments, returned to the scene travelling south on Broad Street and again asked Ms. Contreras whether she needed a ride. This time she accepted.

The defendant then proceeded south on Broad Street toward Center City Philadelphia. Suddenly he changed directions and drove west toward the Schuylkill Expressway. When Contreras asked where he was going the defendant said, “You are going with me, this ought to teach you not to get in cars with strangers”. He then drove onto the Schuylkill Expressway and told her to remain in the vehicle, to shut up and to do everything he said. As she moved to the door on the passenger side of the vehicle the defendant leaned over, bolted the door and threatened to kill her if she attempted to leave the vehicle. The defendant then continued to drive west out of the City of Philadelphia. Ms. Contreras testified at trial that the defendant kept his hand in his pocket at all times and that she believed that he might have been holding a weapon. The defendant then told her that all he wanted was “a little sex.” She responded to this statement by asking him whether he would want something like that to happen to his sister. The defendant then threatened to kill her again. He drove to Fairmount Park, stopped the vehicle, got out and looked around, and then returned to the vehicle which he drove to Monument Avenue in Lower Merion Township, Montgomery County. This was a dark area with few homes. At this point Contreras informed the defendant that if he “wanted to proceed with this, to go ahead”, because she did not want him to hurt her. The defendant then parked the vehicle and instructed her in the sexual acts he wished her to perform. These included acts of oral sex in the front seat of the vehicle. They then moved to the back seat where he had sexual intercourse with her. After 45 minutes the defendant drove her to the Center City bus terminal where she got out of the vehicle, recorded its license number, and informed the police that she had been raped. The defendant was arrested a few hours later. On July 19, 1978 he was convicted of the charges as set forth previously in this opinion. He was sentenced to a prison term of three and one-half to fifteen (3 & Vz—15) years. The defendant appealed his judgment of sentence on August 10, 1979.

Defendant’s first contention is that the facts adduced at trial are insufficient to sustain the jury’s verdict. He argues that the above stated facts negate any finding that he raped Contreras and argues that she gave him permission because she did not fight him, displayed no hysteria after the incident on the way to the bus station, and had stated words to the effect that defendant might as well get it (the rape) over with as soon as possible. We do not agree.

A person commits the crime of rape when he engages in sexual intercourse with another person not his spouse by forcible compulsion; or by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; or who is unconscious; or who is incapable of consent because of a mental deficiency which would preclude the person of consenting. 18 Pa.C.S.A. 3121. The same criteria apply to the crime of involuntary deviate sexual intercourse. 18 Pa.C.S.A. 3123. The force necessary to support convictions for rape and involuntary deviate sexual intercourse need only be such as to establish lack of consent and to induce the woman to submit without additional resistance. Commonwealth v. Irvin, 260 Pa. Superior Ct. 122, 393 A.2d 1042 (1978). It is not necessary that the victim be beaten, that the victim cry, that the victim become hysterical, or that she be threatened by a weapon for the crime of rape to occur. The degree of force required to constitute rape is relative and depends upon the facts and particular circumstances of the case. It is not necessary that force be actually applied by the perpetrator to the victim. Commonwealth v. Irvin, supra. In the instant case the testimony revealed that the defendant threatened the prosecutrix with death at least twice. The fact that she ultimately decided that it was pointless to physically resist the defendant after he had so threatened her does not establish conclusively that the prosecutrix gave her consent to the acts. This is a jury question and the jury properly resolved the issue in favor of Ms. Contreras. Nothing has been presented by the defendant to justify overturning the jury’s determination of this issue.

The defendant further contends that because the jury acquitted him of the terroristic threats charge that it logically had to disbelieve the testimony of the prosecutrix relative to the threats on her life and that therefore the jury’s verdict of guilty on the other charges was inconsistent with the acquittal verdict on the terroristic threats charge. Consistency in verdicts in criminal cases is not necessary and logical inconsistencies will not serve as grounds for reversal. Commonwealth v. Warlow, 246 Pa. Superior Ct. 224, 369 A.2d 1293 (1977). Furthermore, since the crime of terroristic threats (18 Pa.C.S.A. 2706) is a specific intent crime in that the intent to terrorize is a necessary element thereof, it could very well be the case that the jury believed that defendant’s ultimate goal in threatening to kill the prosecu-trix was not to terrorize her but to compel her to have sexual intercourse with him and that therefore, in its mind, it did not feel that a conviction of the crime of terroristic threats was warranted while conviction on the rape and involuntary deviate sexual intercourse charges (general intent crimes) were warranted. Such speculation is the reason that logical inconsistencies in criminal case verdicts are not grounds for reversal. We find that the facts of the case do indeed support the jury verdicts on the rape, involuntary deviate sexual intercourse and simple assault-menace charges.

Defendant also claims that the court below prejudiced the jury when it referred to Ms. Contreras as the “victim” on several occasions during its charge to the jury. We do not agree. Reference to the prosecutrix in a rape case as “the victim” is not an expression of the judge’s opinion as to the guilt of the defendant. In its opinion the court below stated:

“It should be noted that the first reference to Miss Contreras was as the ‘alleged victim’, another time as a ‘person’, and on other occasions as the ‘victim’. Perhaps, in hindsight, it would have been more appropriate to continue to refer to Miss Contreras as the ‘alleged victim’ or the ‘prosecutrix’; however reference to the complainant in a rape case as ‘the victim’ is not an expression of the judge’s opinion as to the guilt of the defendant. In fact, in Commonwealth v. Pride, 252 Pa. Superior Ct. 34 [380 A.2d 1267] (1977), our Superior Court recently made numerous references to the complainant in a rape case as the ‘victim’ where consent was very much at issue.
“Our courts have ruled that the use of more aggravating terminology constituted harmless error. For example, use of the word ‘murder’ instead of ‘killing,’ Commonwealth v. Rumage, 359 Pa. 483, 488 [59 A.2d 65] (1948); reference to the defendant on a single occasion as ‘prisoner’ instead of the ‘defendant’ or ‘accused’, Commonwealth v. Duffy, 252 Pa. Superior Ct. 148, 151-2 [381 A.2d 157] (1977); and references to co-defendants as ‘habitual criminals’ where the record established numerous prior arrests, Commonwealth v. Moyer, 357 Pa. 181, 199 [53 A.2d 736] (1947), were insufficient to sway the jurors’ minds to a position of prejudice against the defendant.”

In reviewing the entire charge to the jury, as we must, we find that the court informed the jury on several occasions that it was their recollection of the facts which was controlling and that they had to find the defendant guilty of all facts necessary to constitute the crimes beyond a reasonable doubt. The charge, taken in its entirety, was not so prejudicial to the defendant so as to necessitate a new trial.

Defendant also claims that the court below erred when it “raised its voice” when it said the word “threats” to the jury during its charge. The court stated that it didn’t mean to emphasize the use of the word “threats” during its charge. Of course, this issue is one which an appellate court cannot properly resolve from the record since inflections in the use of one’s voice obviously do not appear in the transcript. So, to some extent at least, we must rely on the professionalism and good faith of our trial judges in such matters. There are, perhaps, some occurrences at the trial level which are impossible to review on appeal. Suffice it to say that as an appellate court we will continue to review every aspect of proceedings at the trial level which are possible to review. There are, however, limitations on our ability to review effectively each and every minor detail which occurs at trial. In any event a reading of the entire charge to the jury convinces us that the charge, read as a whole, was fair and, without better reason than the defendant has given us, we will not hold that the court committed reversible error in its charge to the jury.

Finally, the defendant contends that the court should have instructed the jury that if the defendant reasonably believed that the prosecutrix had consented to his sexual advances that this would constitute a defense to the rape and involuntary deviate sexual intercourse charge. Defendant relies on the obscure Alabama case of Gordon v. State, 32 Ala.App. 398, 26 So.2d 419 (1946) for this proposition. The defendant requested this charge and the court below declined to so instruct the jury. In so refusing the proffered charge the court acted correctly. The charge requested by the defendant is not now and has never been the law of Pennsylvania. The crux of the offense of rape is force and lack of victim’s consent. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). When one individual uses force or the threat thereof to have sexual relations with a person not his spouse and without the person’s consent he has committed the crime of rape. 18 Pa.C.S.A. 8121. If the element of the defendant’s belief as to the victim’s state of mind is to be established as a defense to the crime of rape then it should be done by our legislature which has the power to define crimes and offenses. We refuse to create such a defense.

Judgment of sentence affirmed.

CAVANAUGH, J., files a concurring opinion.

CAVANAUGH, Judge:

I concur in the result of this opinion and agree that the judgment of sentence should be affirmed. However, I disagree with the majority’s statement that:

[to] some extent at least, we must rely on the professionalism and good faith of our trial judges in such matters. There are, perhaps, some occurrences at the trial level which are impossible to review on appeal. Suffice it to say that as an appellate court we will continue to review every aspect of proceedings at the trial level which are possible to review. There are, however, limitations on our ability to review effectively each and every minor detail which occurs at trial.

In the instant case the record contains only the following concerning the trial judge’s alleged raising of his voice:

MR. HEMPHILL: Yes. First of all, everytime you mentioned ‘threats’, you raised your voice and emphasized the word.
THE COURT: Well, just because I raised my voice I didn’t mean to emphasize the use of the word ‘threats’. I don’t know what I can say, I really don’t recall.

Counsel sought no further remedy than to call the judge’s attention to the claim that he had raised his voice. The issue is waived on appeal, as counsel did not request cautionary instructions or take any other action with respect to this conduct by the judge. In addition, we agree with the majority that a fair reading of the charge adequately demonstrates its fairness despite any inadvertent voice inflections which might have occurred.

Unfortunately this court is not permitted to rely on the professionalism and good faith of the trial judge with respect to errors in the trial of a case. It is the duty of an appellate court to fully review' each case on appeal within the parameters of the facts as they appear in the record and the applicable law. Moreover, there are suitable methods to bring into the record any error or impropriety which counsel feel had an adverse affect on his client’s right to a fair trial. I believe it is misleading to indicate that there are some areas of review that are beyond our scope.


author: WATKINS, Judge: POPOVICH, Judge,

text:
    439 A.2d 770
    COMMONWEALTH of Pennsylvania, v. Andre WILSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1981.
    Filed Jan. 5, 1982.

      Alan Ellis, Philadelphia, for appellant.
    David M. McGlaughlin, Assistant District Attorney, Nor-ristown, for Commonwealth, appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   WATKINS, Judge:

In this appeal the defendant contends that the court erred in denying his motion in arrest of judgment.

The defendant was found guilty after a trial by jury of robbery, theft, recklessly endangering the life of another person, violations of the Uniform Firearms Act and criminal conspiracy. Post-trial motions were filed, his motion for a new trial was granted and his motion in arrest of judgment was denied. He appeals from this denial.

Two questions are involved in this appeal: (1) defendant’s contention that the evidence was insufficient to sustain the guilty verdict; and (2) that Pa.R.Crim.Pro. 1100 was violated.

On January 22, 1979, the defendant, Andre Wilson, entered Spain’s Gift Shop in the Cheltenham Mall. He was met by the cashier, Molly Gartner, who was helping him select greeting cards and who did not testify due to illness. The store manager, Jean Meadows, together with Gartner, waited on him. A saleslady, Geraldine Dinter, testified that between 11 and 11:30 a. m., his actions in walking about the store were suspicious and made her nervous. He left the store. The witnesses then saw a short, black man, never identified, with his arm around Ms. Gartner’s waist brandishing a pistol. At the same time she saw the defendant who had reentered the store standing near the cash register. Ms. Dinter, Meadows and Gartner were forced by the gunman to lie on the floor and cover their faces. They heard the cash register open and money being taken out.

Another witness coming into the store was met by the gunman leaving and he took her handbag. A fourth witness testified that the defendant brushed passed her in leaving the store quickly at the same time.

The police were called and $88 was found to be missing, as well as the witness’ handbag containing cash and credit cards. Less than 3 hours later the defendant was arrested, credit cards, money and clothing were taken from him. The credit cards were suppressed. The money consisted of 52-one dollar bills.

Mere presence at the scene of the crime is not alone sufficient to convict. Commonwealth v. Mitchell, 270 Pa. Superior Ct. 146, 411 A.2d 221 (1979). Nor is flight alone sufficient. Commonwealth v. Roscoli, 454 Pa. 59, 309 A.2d 396 (1977). But those factors taken together in conjunction with other circumstantial evidence may provide a sufficient basis for conviction. Commonwealth v. Dennis, 236 Pa. Superior Ct. 348, 344 A.2d 713 (1975). See also, Commonwealth v. Viall, 278 Pa. Superior Ct. 613, 420 A.2d 710 (1980).

The defendant was in the store in the vicinity of the cash register when the gunman entered. His conduct was suspicious. He left the store at the same time as the gunman. The gunman ordered everybody on the floor but the defendant. He was arrested a short time after the theft and found in possession of 52-one dollar bills. The direct and circumstantial evidence taken as a whole are sufficient to sustain the verdict and the court below did not abuse its discretion in denying the motion in arrest of judgment.

Defendant claims that he did not knowingly waive Rule 1100 and, as the burden is on the Commonwealth to show a knowing and intelligent waiver which he alleges the state failed to show, he is entitled to discharge.

The facts are that the defendant signed a motion for trial postponement on June 15, 1979 with the advice of his counsel. The Commonwealth has the burden to establish that the waiver of Rule 1100 was knowingly, intelligently and voluntarily made. Commonwealth v. Waldman, 484 Pa. 217, 398 A.2d 1022 (1979); Commonwealth v. Taylor, 473 Pa. 400, 374 A.2d 1274 (1977). However, in Commonwealth v. Myrick, 465 Pa. 288, 349 A.2d 910 (1976), it was held that a waiver signed by the defendant is a sufficient record that the waiver was prima facie evidence of an informed and voluntary action. The defendant failed to offer any testimony at the hearing of March 27, 1980 that the signed motion for trial postponement was signed involuntarily and without knowledge. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980).

Order affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I must dissent. Here, the evidence, even with the reasonable inferences that the jury could have drawn, does not establish that appellant, Andre Wilson, was guilty beyond a reasonable doubt. Therefore, this writer cannot applaud the majority’s decision which finds that “[t]he direct and circumstantial evidence taken as a whole are sufficient to sustain the [jury’s] verdict”. At p. 771. The most that can be said is that the jury was allowed impermissibly to speculate on facts which are not borne out by the record. Hence, this dissent.

The circumstantial evidence which was presented by the prosecution at trial established that: (1) appellant had entered the store prior to the theft; (2) appellant left the store before the theft; (3) appellant had reentered the store and was standing “near” the cash register at the same time that an unidentified man was brandishing a pistol around a saleslady’s waist; and (4) that appellant brushed past someone and appeared to be leaving the store quickly through a different exit at the same time that the gunman was leaving.

Although this evidence established appellant’s presence at the scene of the crime, and even assuming that appellant’s departure from the store a second time was evidence of flight, the evidence was insufficient to establish appellant’s guilt beyond a reasonable doubt.

This Court’s decision in Commonwealth v. Keller, 249 Pa.Super. 384, 378 A.2d 347 (1977), is similar to the instant case. In Keller, the defendant was accused of theft of money from a coin box in a car wash. The prosecution’s evidence established appellant’s presence with two other young men at the scene of the coin box, and also established that when a bystander approached the defendant, he jumped in a car and left. A further examination revealed that one of the coin boxes was missing and the other was damaged. On these facts, this Court concluded that the evidence of appellant’s guilt was insufficient to establish theft. This Court said:

“The mere presence of an individual at the scene of a crime is not a sufficient circumstance upon which guilt may be predicated. Commonwealth v. Bailey, [448 Pa. 224, 292 A.2d 345] supra; Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966); Commonwealth v. Manson, 230 Pa. Super. 527, 327 A.2d 182 (1974). Moreover, the additional element of flight, which is as consistent with fear as with guilt, does not convert presence into proof of guilt. Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976); Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973).
Here, the evidence, even with the reasonable inferences that the factfinder could have drawn therefrom, cannot be said to have established appellant’s guilt beyond a reasonable doubt. No evidence was introduced tending to show that appellant had tampered with the coin boxes or taken anything from them. The most that the Commonwealth has established to prove appellant’s involvement is his presence at the car laundry and his flight therefrom.” Id., 249 Pa.Super. at 388, 378 A.2d at 349 (footnote omitted) (emphasis added)
Accord In re Wood, 277 Pa. Super. 606, 419 A.2d 1316 (1980); Commonwealth v. Tingle, 275 Pa.Super. 489, 419. A.2d 6 (1980); Commonwealth v. Roach, 260 Pa.Super. 261, 393 A.2d 1253 (1978).

In the instant case, no evidence was introduced which showed that appellant had anything to do with the theft of the cash register. Additionally, appellant’s departure from Spain’s Gift Shop is as consistent “with the inference that appellant innocently happened upon the scene and fled out of fear as it is with the inference that appellant was a participant in the [crime].” Commonwealth v. Keller, supra, 249 Pa.Super. at 389, 378 A.2d at 350. This writer cannot agree, therefore, with the majority’s wholesale rejection of this principle even though the majority has advanced no articulable reason why appellant’s departure from the scene of the crime is not, in this case, as equally consistent with the inference that appellant fled out of fear. Even appellant’s presence on the scene, both immediately prior and subsequent to the commission of the crime, is insufficient in the absence of other facts indicative of appellant’s participation of the crime to establish appellant’s guilt beyond a reasonable doubt. See Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966). Accord Commonwealth v. Tilman, 273 Pa.Super. 416, 417 A.2d 717 (1980).

The majority attempts to fill in the holes of the prosecution’s case by stating that appellant’s presence “taken together in conjunction with other circumstantial evidence may provide sufficient basis for conviction. Commonwealth v. Dennis, 236 Pa. Superior Ct. 348, 344 A.2d 713 (1975). See also, Commonwealth v. Viall, 278 Pa. Superior Ct. 613, 420 A.2d 710 (1980).” Following this statement, the majority. attempts to set forth the other evidence, direct arid circumstantial, of appellant’s guilt, i.e., appellant was in the vicinity of the cash register when the gunman entered; appellant’s conduct was suspicious; the gunman ordered everybody on the floor except the appellant; and appellant was in possession of “52-one dollar bills” when arrested three hours later. at p. 771.

First of all, appellant’s possession of “52-one dollar bills”, which the majority relies upon to establish direct evidence of guilt, is also as consistent with innocent acquisition. There is no evidence that the one dollar bills were the ones stolen from Spain’s Gift Shop. See Commonwealth v. Bailey, 250 Pa.Super. 402, 378 A.2d 998 (1977). Additionally, there was no evidence on the record that “52-one dollar bills” are an unusual denomination or quantity such that its mere possession gives rise to an inference of guilt. But see Commonwealth v. Wilson, 394 Pa. 588, 606, 148 A.2d 234, 244 (1950) (“The possession of currency by one person shown to have been in the possession of the victim of a robbery is evidence that such person was a party to the robbery.”); Common wealth v. Addison, 271 Pa.Super. 273, 277-78, 413 A.2d 402, 404 (1979) (where the jury could infer guilt from the fact that appellant “had a large quantity of quarters on his person, and because the damaged pool table accepted only quarters”.); Commonwealth v. Sears, 188 Pa.Super. 31, 34-35, 146 A.2d 79, 80 (1959) (where the jury properly could “infer exclusive possession and theft from the fact that defendant stood there with a stolen, marked bill in his hand and with another stolen, marked bill amid the [sic] many of the similar and unusual denomination in the trash can three feet away”). Absent any other evidence linking the “52-one dollar bills” with the ones stolen from Spain’s Gift Shop, appellant’s possession of the bills does not give rise to an inference of guilt. This Court has said that:

“When two equally reasonable and mutually inconsistent inferences can be drawn from the same set of circumstances, a jury must not be permitted to guess which inference it will adopt, especially when one of the two guesses may result in depriving of his life or liberty.” Commonwealth v. Donald, 192 Pa.Super. 276, 161 A.2d 915, 918 (1960) (emphasis added). Accord Commonwealth v. Rothman, 226 Pa.Super. 319, 310 A.2d 353 (1973).

Thus, the jury should not have been allowed to speculate in the instant case on whether appellant’s possession of the bills and his flight from the scene of the crime were consistent with criminal activity.

Moreover, the other circumstantial evidence relied upon by the majority showed that appellant was in the vicinity of the cash register when the gunman entered, that appellant’s conduct was suspicious, and that the gunman ordered everybody on the floor but the appellant. While the evidence raises a possibility that appellant was involved indirectly in criminal activity, it does not establish beyond a reasonable doubt that appellant was guilty of robbery, theft, recklessly endangering the life of another person, violations of the Uniform Firearms Act, and criminal conspiracy. Therefore, appellant is entitled to be discharged.

      . Our own Supreme Court when addressing this point has said: “The evidentiary value of flight, however, has depreciated substantially in the face of Supreme Court decisions delineating the dangers inherent in unperceptive reliance upon flight as indicium of guilt. We no longer hold tenable the notion that ‘the wicked flee when no man pursueth, but the righteous are as bold as a lion.’ The proposition that ‘one who flees shortly after a criminal act is committed or when he is accused of committing it does so because he feels some guilt concerning that act’ is not absolute as a legal doctrine ‘since it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses.’
      ‘With cautious application in appreciation of its innate shortcomings, flight may under particular conditions be the basis for an inference of consciousness of guilt. But guilt, as a factual deduction, must be predicated upon a firmer foundation than a combination of unelucidated presence and unelucidated ñight. Here there was no evidentiary manifestation that the appellant was prompted by subjective considerations related in anywise [sic?way] to the crime. Moreover, as the evidence disclosed, appellant had several convictions prior to the affair in suit, and these might well have dictated when seemed to him to be best. Absent anything more, there was no more basis for attributing his ñight to complicity in the robbery than to a purpose consistent with innocence.’ ” [Footnotes omitted.] Commonwealth v. Rosciolo, 454 Pa. 59, 66 n. 6, 309 A.2d 396, 400 n. 6, (quoting Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110, 1114-1115 (D.C.Cir.1969) (emphasis added).

        , This writer notes that the primary case relied upon by the majority, Commonwealth v. Dennis, supra, does not support the legal proposition cited. The issue in Dennis was whether the police had established “the probability [probable cause] that criminal activity was afoot” (i.e., prowling) in order to support an arrest and subsequent search of appellant’s person. Id. 236 Pa. Superior Ct. at 351, 344 A.2d at 715. A different, and much higher standard, applies, however, when reviewing a claim that a conviction is not supported by evidence of guilt. That standard is the reasonable doubt standard.

      . The trial court’s opinion establishes that appellant had in his possession $122.00 in bills and $6.79 in change when arrested. Trial Court’s Opinion at p. 5. Among the $122.00 in bills were “52-one dollar bills”. Id. The evidence also showed that the total amount stolen was $88.00. Thus, any connection between the $122.00 in bills, including the “52-one dollar bills”, is equally consistent with innocent acquisition.


author: MONTGOMERY, Judge:

text:
    439 A.2d 774
    COMMONWEALTH of Pennsylvania, v. Easter FEICK, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 22, 1981.
    Filed Jan. 5, 1982.

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

This appeal arises from the adjudication of appellant as delinquent pursuant to the Juvenile Act, upon a finding of contempt by the Honorable Patrick R. Tamilia. For the following reasons, we vacate the order of the lower court and reverse judgment of sentence.

The record evinces that appellant, who at the time of adjudication was sixteen years of age, suffered from physical and psychological parental abuse. The lower court assumed jurisdiction over her on January 15, 1980. A hearing was held on January 23, 1980, at which time she was found to be dependent under the Juvenile Act, and placed under the supervision of Children and Youth Services at McIntyre Shelter pending evaluation and/or placement. Appellant ran away from the shelter and her whereabouts were unknown for several months. When located, appellant was detained at Shuman Center, a secure facility designed for delinquent children, while she awaited the filing and disposition of a delinquency petition charging her with violation of a court order in running away from McIntyre Shelter. As stated earlier, the lower court found her in contempt and adjudicated her delinquent.

The sole issue for our consideration is whether the juvenile court had a sufficient basis for adjudicating appellant delinquent. Our court was recently faced with this question as a matter of first impression. Interest of Taessing H., 281 Pa.Super. 400, 422 A.2d 530 (1980). The majority in Taess-ing found that the juvenile court lacked jurisdiction to adjudicate a child charged with contempt delinquent. Though two members of the three judge panel agreed to the disposition in Taessing, their rationales differed. The author of the majority opinion deduced that the contempt, which resulted from a runaway incident the same as that herein, was civil and not criminal. It was, therefore, erroneous to adjudicate the juvenile delinquent. The concurring judge based his agreement with the majority’s disposition on the premise that though the contempt was criminal, the underlying conduct was not a crime under the Juvenile Act, and, therefore, could not be the basis for an adjudication of delinquency. We agree with and are bound by the majority opinion in Taessing.

In order for a juvenile to be found delinquent, the contempt for which he or she is cited must be a crime under the law of this Commonwealth. 42 Pa.C.S. § 6302. There are two classes of contempt, civil and criminal, which are distinguishable according to the prevailing purpose and objective of the court’s order. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980); In re “B”., 482 Pa. 471, 394 A.2d 419 (1978). A citation is for criminal contempt if the court’s purpose was to vindicate the dignity and authority of the court and to protect the interest of the general public. If the purpose of the citation is to coerce the contemnor into compliance with the order of the court to do or refrain from doing some act primarily for the benefit of the litigant or a private interest, it is civil contempt. Commonwealth v. Charlett, 481 Pa. 22, 27, 391 A.2d 1296, 1298 (1978); citing Woods v. Dunlop, 461 Pa. 35, 40 n.2, 334 A.2d 619, 622 n.2 (1975).

The court’s primary purpose in the instant case was apparently to coerce appellant to remain under supervised care to facilitate her placement and treatment. The goal of the court was not simply punishment, as is evidenced by the opinion of the juvenile court. Judge Tamilia stated that he believed that running away placed Easter in great personal danger. He, therefore, felt that the interest of the child required the temporary security of the detention center to achieve the goals of placement and protection. Such an approach is consistent with the fact that a purpose of punishment is beyond the function of a juvenile court judge. His sole function is protective, seeking the treatment, reformation and rehabilitation of those children brought before him. In re Garman, 250 Pa. Super. 54, 378 A.2d 449 (1977); Commonwealth v. Mitchell, 283 Pa.Super. 455, 424 A.2d 897 (1981).

Easter’s conduct which led to the finding of contempt, leaving shelter care without permission, did not of itself constitute an offense under our Crimes Code. A charge of escape, the closest analogous crime, would not lie against appellant, as she was merely classified as a dependent child at the time she ran away from the shelter care facility. Specifically, she had not been alleged or found to be delinquent. The act of running away was, therefore, civil in nature and indicative of contempt which was characteristically civil. Interest of Taessing H., supra, 281 Pa.Super. at 411, 422 A.2d at 535. Civil contempt is primarily used for some remedial purpose and is clearly not a crime in our Commonwealth. It, therefore, cannot properly support an adjudication of delinquency.

The error of the lower court’s action is further compounded by the fact that the act of running away from shelter care is a status offense, which renders the instant adjudication, of delinquency beyond the authority of the juvenile court. In promulgating the amendments to the Juvenile Act, our General Assembly determined that status offenders should not be classified as delinquent children. The result was the reclassification of status offenses as dependency matters as opposed to delinquent acts. Compare, Act of December 6, 1972, P.L. 1464, No. 333, § 2, with, Act of August 3, 1977, P.L. 155, No. 41, § l. Though the present Act, in and of itself, does not contain specific language as to such a change, when compared to the prior Act, the legislative intent to separate status offenses and delinquent acts is clear. Specifically, prior to 1977, status offenses such as truancy, running away, and ungovernability were classified under the Juvenile Act as delinquent acts. The reclassification effected by the 1977 amendments is embodied in the definition of a dependent child. See, 42 Pa.C.S. § 6302(5), (6), (8), (9). A careful comparative reading of the Acts of 1972 and 1977, leaves no doubt as to the intent of the legislature. As status offenses are not to be considered delinquent acts, the commission of such an offense is not sufficient criminal conduct which could lead the juvenile court to find a status offender delinquent. Our characterization of the contempt as civil herein and in Interest of Taessing H., supra, which is buttressed by our categorization of the conduct in question as a status offense, results in a determination that the juvenile court erroneously adjudicated appellant delinquent.

Accordingly, we vacate the adjudication of delinquency and disposition based thereon as beyond the authority of the juvenile court, and this matter is remanded to the juvenile court for appropriate disposition consistent with this opinion. We relinquish jurisdiction.

PRICE, J., did not participate in the consideration or decision of this case.

      . Act of July 9, 1976, P.L. 586, No. 142 § 2, effective June 27, 1978, as amended April 28, 1978, P.L. 202, No. 53, § 29, effective June 27, 1978. 42 Pa.C.S. § 6301 et seq.

      . 42 Pa.C.S. § 6302.

      . The term “shelter” is used to denote a physically unrestricted facility. 42 Pa.C.S. § 6302.

      . 18 Pa.C.S. § 101 et seq.

      . 18 Pa.C.S. § 5121:
      “(a) Escape. A person commits an offense if he unlawfully removes himself from official detention.. .
      (e) ... the phrase official detention means . .. detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent...”

      . A status offense is conduct which if engaged in by an adult would not be legally prohibited. Interest of Taessing H., 281 Pa.Super. 400, 408, 422 A.2d 530, 533 (1980).

      . The Act of December 6, 1972 was repealed by the Act of April 28, 1978, known as the Judiciary Act Repealer Act (JARA). Prior to the promulgation of JARA, the Act of July 9, 1976, enacted a Judicial Code in the form of a new Title 42 of Pennsylvania Consolidated Statutes which includes the Juvenile Act. The effective date of the Act of 1976 was delayed until the effective date of JARA. In the interim, the Juvenile Act was amended by the Act of August 3, 1977, which amendments included the reclassification of status offenses as dependency matters. The Act as amended in 1977 is substantially our present Juvenile Act.


author: HOFFMAN, Judge:

text:
    439 A.2d 777
    COMMONWEALTH of Pennsylvania v. Alfred MASSIE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 30, 1981.
    Filed Jan. 5, 1982.

      John A. Halley, Pittsburgh, for appellant.
    Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in denying him an evidentiary hearing with independent counsel on his Post Conviction Hearing Act (PCHA) petition alleging trial counsel’s ineffectiveness. We agree and, accordingly, vacate the order of the lower court and remand for proceedings consistent with this opinion.

Appellant, represented by an attorney from the Allegheny County Public Defender’s office, pled guilty on June 18,1974 to multiple counts of armed robbery, theft, and related weapons offenses. He was sentenced to a maximum of fifteen years in prison, and took no direct appeal. Represented by another attorney from the same office, he filed a PCHA petition on February 12, 1975 alleging, inter alia, his trial counsel was ineffective in failing to prepare adequately before the plea hearing. After an evidentiary hearing the lower court denied the petition, and appellant did not appeal. On March 21, 1977, appellant, pro se, filed a second PCHA petition again alleging trial counsel’s ineffectiveness and now specifically seeking appointment of counsel “not from the public defen[d]er[’s] office.” The lower court refused to appoint counsel and denied this petition without a hearing on the grounds that all issues had been litigated in the first PCHA proceeding. This appeal followed.

Appellant contends that he is entitled to independent counsel on his PCHA petition alleging trial counsel’s ineffectiveness. We agree. “[A] PCHA petitioner, represented by court-appointed counsel and alleging ineffective assistance of trial counsel, may not be represented by an attorney from the office with which the allegedly ineffective attorney was associated.” Commonwealth v. Fox, 476 Pa. 475, 477, 383 A.2d 199, 200 (1978). See Commonwealth v. Lutz, 483 Pa. 518, 523 n.4, 397 A.2d 787, 789 n.4 (1979); Commonwealth v. Glaseo, 481 Pa. 490, 492-93, 393 A.2d 11, 12 (1978); Commonwealth v. Bundy, 480 Pa. 543, 545, 391 A.2d 1018, 1019 (1978); Commonwealth v. Sherard, 477 Pa. 429, 430, 384 A.2d 234, 234 (1977); Commonwealth v. Wright, 473 Pa. 395, 398, 374 A.2d 1272, 1273 (1977); Commonwealth v. Crowther, 241 Pa.Superior Ct. 446, 448, 361 A.2d 861, 862 (1976). See also Commonwealth v. Via, 455 Pa. 373, 377, 316 A.2d 895, 898 (1974). Independent counsel is required for an ineffectiveness claim because the law will not assume that counsel will zealously develop a record of his own or his associates’ inadequacies. See, e.g., Commonwealth v. Glasco, supra, 481 Pa. at 492-93, 393 A.2d at 12; Commonwealth v. Fox, supra, 476 Pa. at 479, 383 A.2d at 200. Thus, a petitioner alleging ineffectiveness of counsel will not be restricted to a record created by an associate of the allegedly ineffective counsel. Commonwealth v. Lutz, supra, 483 Pa. at 523, 397 A.2d at 789; Commonwealth v. Bundy, supra, 480 Pa. at 546-47, 391 A.2d at 1020. Though an appellate court on such a record may grant relief if ineffectiveness is apparent, it will not reject such a claim without remand for appointment of new counsel and a new evidentiary hearing. Commonwealth v. Lutz, supra; Commonwealth v. Glasco, supra; Commonwealth v. Fox, supra. Independent counsel on appeal is not an adequate substitute for independent counsel at an evidentiary hearing because an ineffectiveness challenge requires an examination of the bases for the challenged counsel’s course of action. Commonwealth v. Bundy, supra, 480 Pa. at 546, 391 A.2d at 1020. See Commonwealth v. White, 476 Pa. 350, 382 A.2d 1205 (1978); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Accordingly, appellant is entitled to a new evidentiary hearing on his claim that trial counsel was ineffective.

The lower court’s order is vacated and the matter is remanded for proceedings consistent with this opinion.

      . Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq.

      . On September 18, 1980, nearly three-and-one-half years after appellant’s original request for appointment of counsel not from the public defender’s office, the lower court appointed appellant’s present appellate counsel.

      . Contrary to the Commonwealth’s assertion, appellant is not bound by the record created at his first PCHA hearing by an associate of the allegedly ineffective counsel. Our Supreme Court has retroactively applied the right to independent counsel as defined in Commonwealth v. Crowther, supra. See Commonwealth v. Wright, supra. Further, Crowther already had been decided by the time of the order denying appellant’s pro se PCHA petition, from which order this appeal is taken.