author: WICKERSHAM, Judge:

text:
    451 A.2d 1019
    COMMONWEALTH of Pennsylvania v. Donald HILL, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 23, 1982.
    Filed Oct. 15, 1982.
    Petition for Allowance of Appeal Denied Feb. 7, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   WICKERSHAM, Judge:

On September 22, 1981 an adjudicatory hearing was held before the Honorable Paul A. Tranchitella in the Court of Common Pleas of Philadelphia, Family Division-Juvenile Branch, in the matter of Donald Hill.

Detective Domenic Bellizzie testified at the hearing that on July 8, 1981 he took Donald Hill and three other young males into custody, gave them their constitutional warnings and held them in the juvenile aid holding room. He testified:

Q. Detective, did you fully explain the defendant’s constitutional rights to him at this time?
A. Yes, I did.
Q. Did you know the age of the defendant?
A. Seventeen years old.
Q. Did you attempt to contact a parent or parents of the defendant?
A. We contacted the defendant’s mother.
Q. How did you do that?
A. By phone.
Q. Did you ask his mother to come down to Northwest? A. Yes, I did.
Q. What was her answer to you?
A. She was unable to get there at that time, Your Honor. I then read her the boy’s rights over the phone.
I explained to her the charges, had the boy speak to his mother, at which time I talked to her and she said it was all right for him to give a statement to me.
Q. After talking to the mother and giving her the warnings, did you ask this defendant and question him as to his understanding of his rights?
A. Yes.
Q. Did he have an opportunity to have something to eat or drink during that time?
A. I think he went to the men’s room and he had a drink, I believe. I am not positive.
Q. Did you take a statement?
A. Yes, I did.
Q. Did you ever speak to the defendant’s mother after you had taken the statement?
A. Yes, I did.
Q. Will you tell us how and where?
A. After the statement was taken, approximately forty-five minutes to an hour after that—I guess that would be around 6:30 p.m., the boy’s mother and father did come in, at which time I read the statement to them and they had no objections to it at that time.
Q. Detective, you did say that the defendant talked to his mother on the phone?
A. Yes, he did.
Q. Do you know how long that conversation lasted; if you recall?
A. No, I don’t recall.
Q. Detective, what time did you take this young man into custody?
A. 1:45 p.m.
Q. This young man was not taken into custody on this case; is that correct?
A. That is correct.
Q. Were you the detective who actually made the arrest? A. I was there when the arrest was made of this male. I arrested another male at that time.
Q. What time did this young man get into the police district?
A. A short time after that, he was transported in. Q. Approximately what time would he have arrived in the JAD office?
A. 2:15 p.m.
Q. Officer, what time did you begin the questioning?
A. After numerous attempts to get his mother, the questioning was begun at—the warnings were given at 5 o’clock p.m. and the questioning] started a short time after that.

Record at 5-7.

Charles Anderson testified at the same hearing and advised the court that he lived at 4718 North Ninth Street, Philadelphia, and that he left his home on March 23, 1981 at about 6:00 in the morning and returned at 3:20 that afternoon.

Q. Tell us what you found when you got back home.
A. I came through the front door, and I discovered that my stereo equipment had been gone.
Q. What else, if anything, was missing?
A. A pocket watch, a rifle and two cameras.
Q. Can you tell us the approximate value of everything that was taken?
A. About a thousand, five hundred dollars.
Q. After you found the items missing, did you look at the house?
A. Yes, I did.
Q. Tell us about the doors?
A. The storm door had been jimmied, and the window on the door itself had been broken.
Q. When you had left that day, what was the condition of those doors?
A. Perfect condition.
Q. When you left, did you lock the house?
A. Yes, I did.
Q. Do you know this defendant?
A. Yes, I do. He is my next door neighbor.
Q. Had you given the defendant or anyone else permission to come in your house that day and take anything out of it?
A. No, I didn’t.
Q. Did you report this to the police?
A. Yes, I did.

Record at 16-17.

Detective Bellizzie further testified that on July 8, 1981, after advising the young defendant of his constitutional rights, he conducted the following colloquy with the defendant:

“Q. Can you read and write the English language? A. Yes.
Q. How far did you go in school?
A. Eleventh grade.
Q. Go on in your own words and tell me about the burglaries at 4718 North 9th and at 4700 North 9th, the place across from you.
A. While the one at 4718 North 9th Street was out, D-Don, he lives across the street from me, next to the other house we broke into. He had been working in the house at 4718 North 9th Street and knew what they had in there. He came over my house for money. We broke in and asked me if I wanted to get paid with him. I said yeah. It was about 9:30 or 10 o’clock in the morning. Then D-Don went around up the alley and I stayed in my house.
We broke out the window in the back of 4718, and then I went over and we both went in the place. D-Don took a rifle and I took a watch. Then we took the stuff over to my house. Then D-Don left and I stayed home.
Q. What do you mean by the phrase, get paid?
A. You know, to make money do things, to make money.
Q. Who has the gun now?
A. I don’t know. D-Don cut it down, but I think he sold it.
Q. What did you do with the watch?
A. Sold it to a guy on the street.
Q. Do you have anything else to say about the burglary at 4718 North 9th?
A. No.”
Q. After he gave you the statement, the defendant, did he read the statement?
A. I believe I read it to him.

Record at 18-19.

Following the testimony, the court adjudicated Donald Hill a delinquent, noted his prior robbery and burglary charges and prior commitments to juvenile training centers and committed him to an open setting at Cornwells Heights.

This appeal followed.

In Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975), Roddy Starkes was being investigated by the police concerning the death of one Edward Stradling, who had been stabbed in the back. Starkes, at the time of the investigation, was fourteen years of age. Investigating officers arrived at the residence of the Starkes and advised his mother that they were conducting an investigation concerning the death of Mr. Stradling and that her son was a suspect. At the request of the officers, the juvenile was taken to the homicide unit for questioning. Under attack on appeal was a statement given by the boy to the police. Our supreme court held:

The Commonwealth has the burden of proving, by a preponderence of the evidence, that the accused’s confession was obtained after a knowing and intelligent waiver of his constitutional safeguards. Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975) (J-326 of 1974); Commonwealth v. Ewell, 456 Pa. 589, 319 A.2d 153 (1974); Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).

Most recently, we observed in Commonwealth v. Goodwin, supra, that:

“The United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) stated that an individual under custodial interrogation, who has been informed properly of his privilege against self-incrimination and the right to counsel, may elect to waive these constitutional rights. However, the Court emphasized that any waiver must be knowing, intelligent and voluntary. Miranda v. Arizona, supra at 444, 86 S.Ct. 1602; Commonwealth v. Purvis, 458 Pa. 359, 326 A.2d 369 (1974); Commonwealth v. Alston, 456 Pa. 128, 317 A.2d 241 (1974); Commonwealth v. Simms, 455 Pa. 599, 317 A.2d 265 (1974); Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1973); Commonwealth v. Riggins, 451 Pa. 519, 304 A.2d 473 (1973); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth v. Davenport, 449 Pa. 263, 295 A.2d 596 (1972); Commonwealth v. Koch, 446 Pa. 469, 288 A.2d 791 (1972); and Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).” Id 460 Pa. at 520-531, 333 A.2d at 894.

In determining the validity of an alleged waiver, we have ruled that it be the product of a free and uncoerced decision:

“The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760. The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.” (Emphasis added). Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961).

See also, Commonwealth v. Goodwin, supra, and cases cited therein.

Further, in determining the voluntariness of the waiver, all attending factors and circumstances must be considered and evaluated:

“... [T]he duration, and the methods of interrogation; the conditions of detention, the manifest attitude of the police toward the defendant, the defendant’s physical and psychological state and all other conditions present which may serve to drain one’s powers of resistance to suggestion and undermine his self-determination. See Culombe v. Connecticut, supra [367 U.S.] at 602, [81 S.Ct. at 1860]; Commonwealth ex rel. Butler v. Rundle, supra [429 Pa.] at 151, 239 A.2d at 431; Commonwealth v. Eiland, supra [450 Pa.] at 574, 301 A.2d at 654; Commonwealth v. Riggins, supra [451 Pa. 519] at 525, 304 A.2d [473] at 476; Commonwealth v. Banks, supra [454 Pa.] at 407, 311 A.2d at 579. As we have noted, when the question of voluntariness passes beyond the realm of physical coercion and into degrees of psychological coercion, most careful attention will be afforded to any facts, circumstances or events tending to overbear the will of the accused. Commonwealth ex rel. Butler v. Rundle, supra [429 Pa.] at 149, 239 A.2d at 430.” Commonwealth v. Alston, 456 Pa. 128, 134, 317 A.2d 241, 244 (1974).

See also, Commonwealth v. Goodwin, supra.

In addition, we have recognized that where the accused is a child of tender years closer scrutiny must be given in determining the adequacy of the waiver.

“. . . [T]hat where the person involved is of tender years, the attending circumstances must be scrutinized with special care before an intelligent and knowing waiver is declared.” Commonwealth v. Fogan, supra, 449 Pa. at 558, 296 A.2d at 758.

See also, Commonwealth v. Jones, 228 Pa.Superior. 789, 315 A.2d 280 (1974) (J-355 of 1973); Commonwealth v. Porter, 449 Pa, 153, 295 A.2d 311 (1972); Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971); Commonwealth v. Darden, 441 Pa. 41, 271 A.2d 257 (1970), cert. denied, 401 U.S. 1004, 91 S.Ct. 1243, 28 L.Ed.2d 540 (1971).

Specifics such as age, intelligence, mental and physical development of the minor suspect are relevant factors in a determination as to whether or not the admissions were the product of a free and unfettered will and made only after a full appreciation of the rights that protect him.

In Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974) we observed:

“An important factor in establishing that a juvenile’s waiver of his constitutional rights was a knowing and intelligent one would be evidence that, before he made his decision to waive those rights, he had access to the advice of a parent, attorney, or other adult who was primarily interested in his welfare.” Id., 459 Pa. at 393, 329 A.2d at 288.

Where an informed adult is present the inequality of the position of the accused and police is to some extent neutralized and due process satisfied. However, where the adult is ignorant of the constitutional rights that surround a suspect in a criminal case and exerts his or her influence upon the minor in reaching the decision, it is clear that due process is offended. An uninformed adult present during custodial interrogation presents an even greater liability. The minor in such a situation is given the illusion of protection, but is in fact forced to rely upon one who is incapable of providing the advice and counsel needed in such a situation.

Unless we require police officers to also advise parents, who are in the position to counsel minor suspects during custodial interrogation, we will not only fail to assure the full benefits sought to be attained by this type of counseling but we will also increase the likelihood that the suspect will be misinformed as to his rights.

Commonwealth v. Starkes, 461 Pa. at 183-186, 188, 335 A.2d at 700-01, 703.

The Commonwealth has established by a preponderence of the evidence that the accused’s confession was obtained after a knowing and intelligent waiver of his constitutional safeguards. The record is clear that while under custodial interrogation, Donald Hill was informed properly of his privilege against self-incrimination and the right to counsel and that he elected to waive these constitutional rights. We find that such waiver was knowing, intelligent and voluntary. We also find that before he waived his constitutional rights he had access to the advice of a parent who was primarily interested in his welfare. We find, as Judge Tranchitella did below, that Donald Hill’s parent was properly informed of the constitutional rights that surround a suspect in a criminal case. Where a parent is present, we must at least require that parent to be advised of the rights possessed by the minor suspect before that parent may be permitted to influence the decision which the minor must make. Commonwealth v. Starkes, id., 461 Pa. at 189, 335 A.2d at 703. Such was the situation in the present case.

Order affirmed.

      . Appellant’s brief frames the statement of questions involved as follows:
      Did not the lower court err by failing to suppress the statement of appellant, a juvenile, where:
      1) the police initially obtained a waiver of Miranda rights without first providing appellant with an opportunity to consult with an informed and interested adult,
      2) when an opportunity to consult was subsequently provided, it occurred in the presence and hearing of the arresting officer, and
      3) the record fails to establish that the appellant thereafter waived his Miranda rights prior to giving a statement?
      Brief for Appellant at 2.

      . Our case is clearly distinguishable from Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975) where the minor was not given the opportunity to consult his mother before he waived his rights, an opportunity mandated by Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974). Donald Hill was given the benefit of parental guidance prior to giving his confession. Cf. Commonwealth v. Wade, 485 Pa. 453, 402 A.2d 1360 (1979) where the record contained no indication that appellant either affirmatively stated that he understood the Miranda warnings or that he affirmatively waived those rights. Having so found, the Supreme Court did not need to determine whether appellant was afforded an opportunity for consultation with an interested and informed adult.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    451 A.2d 1024
    ERIE INSURANCE EXCHANGE v. David EISENHUTH v. James V. McCUMMINS and Dorothy A. McCummins, Appellants. James V. McCUMMINS and Dorothy McCummins, his wife, Appellants, v. David EISENHUTH and Erie Insurance Exchange v. CITY OF NEW CASTLE and Ernest Crawford. James V. McCUMMINS and Dorothy A. McCummins, his wife, Appellants, v. ERIE INSURANCE GROUP, Erie Insurance Company. ERIE INSURANCE EXCHANGE v. David EISENHUTH and James V. McCummins, and Dorothy A. McCummins, Appellants. ERIE INSURANCE EXCHANGE v. David EISENHUTH, Appellant, v. James V. McCUMMINS and Dorothy A. McCummins.
    Superior Court of Pennsylvania.
    Argued March 18, 1981.
    Filed Oct. 15, 1982.
    Petition for Allowance of Appeal Denied March 4, 1983.

      Dominick Motto, New Castle, for McCummins, appellants and appellees.
    Phillip L. Clark, Jr., Ellwood City, for Eisenhuth, appellant and appellee.
    Charles Garbett, Ellwood City, for Erie Ins., appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   BROSKY, Judge:

The issue we decide today is whether a no-fault insurance policy covers injuries suffered by a passenger in an automobile who is shot by a policeman during his pursuit of the driver. We agree with the lower court’s conclusion that the policy does not apply to this situation and therefore affirm the orders before us for review.

Appellant McCummins was a passenger in an automobile driven by appellant Eisenhuth. In a complaint filed against Mr. Eisenhuth and appellee Erie Insurance Exchange, Mr. McCummins avers the following facts.

On December 12, 1976, while Mr. McCummins was a passenger in the Eisenhuths’ vehicle, Mr. Eisenhuth stopped at a gasoline station and obtained gasoline. However, Mr. Eisenhuth drove away from the station without paying for the gasoline. Sometime later, the Eisenhuth vehicle was spotted by a police officer who, by use of the police car’s lights and horn, ordered the vehicle to stop. Mr. Eisenhuth did not stop, but rather sped away, eventually skidding into a ditch. The police officer approached the automobile while it was still in the ditch at which time Mr. Eisenhuth drove the vehicle intentionally, wilfully and recklessly toward the officer. At that time the officer lept onto the hood of the vehicle to avoid being struck by it and fired shots into the car, wounding Mr. McCummins.

Appellant McCummins brought suit against Mr. Eisenhuth and appellee Erie Insurance Exchange, as Mr. Eisenhuth’s insurer. Erie Insurance then sought declaratory judgment as to its duty to defend and indemnify Eisenhuth. It also sought judgment on the pleadings in the suit instituted by Mr. McCummins.

This appeal followed the entry of orders granting the relief requested by Erie.

On appeal, we are asked to determine whether the incident arose out of the maintenance or use of a motor vehicle; whether Mr. McCummins sought recovery for intentionally caused injuries, thereby relieving Erie of liability; whether Mr. McCummins’ action against Erie is barred by the statute of limitations; and whether the grant or denial of no-fault benefits in this case would violate public policy. Because we have determined that Mr. McCummins’ injuries did not arise out of the use or maintenance of a motor vehicle, we need not reach the other questions.

The policy issued by Erie to Mr. Eisenhuth imposes upon the company the duty to pay damages arising out of the ownership, maintenance or use of an automobile and to defend suits alleging such damages.

Similarly, the Pennsylvania No-Fault Motor Vehicle Insurance Act defines the “victim” who is entitled to recover no-fault benefits as an individual who suffers injury arising out of the maintenance or use of a motor vehicle. 40 Pa.C.S. § 1009.103.

It is clear that there must be some causative factor between the use or maintenance of the vehicle and the injuries sustained in order for one to become a “victim” within the scope of the no-fault act.

Appellants remind us that the connection between the harm done and the vehicle need not rise to the level of proximate causation. See Manufacturers Casualty Insurance Company v. Goodville Mutual Casualty Company, 403 Pa. 603, 170 A.2d 571 (1961), in which the Supreme Court held that “but for” causation is enough to satisfy the “arising out of” language.

We believe, however, that even the “but for” standard is not met in this case. Mr. McCummins’ injuries were not caused by the operation of the vehicle. As the court explained in Manufacturer Casualty, supra, 403 Pa. 607, 170 A.2d at 573, “construed strictly against the insurer, ‘arising out of’ means causally connected with, not proximately caused by.” The cause of Mr. McCummins’ injuries was a gunshot, not his being a passenger in Mr. Eisenhuth’s automobile.

In Day v. State Farm Mutual Insurance Company, 261 Pa.Super. 216, 396 A.2d 3 (1979), two vehicles collided. The drivers alighted and a fist fight ensued. One of the drivers was apparently injured and sought recovery from the others, whose insurance company denied liability. We found the insurer not liable on the grounds that the injury suffered did not arise out of the use or maintenance of a motor vehicle. We wrote:

The real issue in this case involves the instrumentality used to cause the injury, not whether it was intentionally or accidentally inflicted. Automobile insurance, including uninsured motorist provision, are designed to compensate victims for vehicle-caused injuries. There must be some connection between the harm done and the insured vehicle. See Wheeler et al. v. London Guarantee & Accident Co., 292 Pa. 156, 140 A. 855 (1928), Ferry v. Protective Indemnity Company of New York, 155 Pa.Super. 266, 38 A.2d 493 (1944), Presbyterian University of Pennsylvania Medical Center v. Keystone Insurance Co. and Willie Bass, 251 Pa.Super. 71, 380 A.2d 381 (1977). The vehicle itself is covered by the automobile policy, and an individual is covered only by nature of his function as the driver of that vehicle. The intent of the driver becomes relevant only after a determination is made that the injury complained of was caused by the vehicle. This is, in fact, the meaning of the language “arising out of the ownership, maintenance or use of such uninsured motor vehicle,” contained in the State Farm policy.

In Day, the fight which caused the subject injuries would not have occurred “but for” the accident. Nonetheless, we said that the injuries did not themselves result from the accident.

Similarly, although it might be argued that Mr. McCummins might not have been shot but for his being in the Eisenhuth vehicle, it was not that vehicle or its use that caused his injuries. He happened to be situated in the vehicle when he was shot, but there was not a causal connection between its use and his injuries. As in Day, although the use made of the vehicle prior to the incident in question may have precipitated the action which did harm appellant Mr. McCummins, it did not itself cause the injuries.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176; 40 Pa.C.S. § 1009.101 et seq.

      . We are aware that the Common Pleas Court of Luzerne County reached a different conclusion in a similar factual situation. See Howe v. Harleysville Insurance Companies, 7 D & C 3rd 214 (1978), but we are compelled to reject that court’s reasoning in this case.


author: SPAETH, Judge:

text:
    451 A.2d 1026
    Charles ORTH and Martha S. Orth v. Willard T. WERKHEISER and Evelyn E. Werkheiser, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1982.
    Filed Oct. 22, 1982.

      Daniel George Spengler, Bath, for appellants.
    Constantine M. Vasiliadis, Bethlehem, for appellees.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   SPAETH, Judge:

This is an appeal from a final decree in equity enjoining appellants from interfering with appellees’ use of a ten foot wide dirt lane running from appellees’ property across appellants’ property to a public road. Appellees claimed, and the chancellor found, that they had acquired an easement by prescription. The chancellor therefore entered a decree nisi ordering appellants to restore the lane to its former condition and enjoining them from interfering with appellees’ use of the lane for ingress and egress. On appellants’ exceptions, the court en banc approved the chancellor’s findings and made the decree nisi final. We affirm.

Appellants own a 100 acre tract in Bushkill Township, Northampton County. Appellant-husband purchased the tract in 1942 and, with his wife, has owned it ever since. Appellees’ property is a twelve acre tract next to appellants’ property. Appellees’ line of title may be summarized as follows. On April 7, 1951, Brice Freestone sold the 12 acre tract to Frank Noecker. On January 23, 1953, Noecker sold the tract to Ralph Lichtenwalner and Kenneth H. Engler. On April 27, 1956, the tract was sold through a straw party to Kenneth H. and Anita E. Engler and Paul C. and Emma King Seyfried. On August 6, 1966, the Seyfrieds sold their one-half interest to The Second National Bank of Nazareth. On May 23, 1969, the Englers and the Second National sold the tract to appellees.

Appellees’ tract is landlocked; the only access to it is the lane over appellants’ tract. When Freestone sold the tract to Noecker, in 1951, he purported to convey a right-of-way over appellants’ tract. In fact, however, Freestone had no right-of-way and there was no basis for his proposed conveyance of one. When appellant-husband received a map from Freestone showing the purported right-of-way, he realized that he “had not signed any easement” and “felt that it [the map] was just a piece of paper.” N.T. 50. He therefore pulled out some stakes that Freestone had set out.

Sometime in 1951 appellant—husband and Noecker met. Appellant-husband told Noecker “that there was a row of trees that had marked off a logging trail and the ruts .. . were grown up with saplings . . .. ” N.T. 44. Noecker said that he would cut the saplings, and appellant-husband said that he “would blast out these stumps [with dynamite] . . . and we would both have a continuation of the lane down to his corner . . . . ” Id. Thus Noecker, with appellant-husband’s permission, got access over appellants’ tract to his tract.

Ralph Lichtenwalner testified that while he was an owner of the 12 acre tract, from January 1953 to April 1956, he used the lane that Noecker and appellant-husband had cleared “about five times, four or five times.” N.T. 16. He never discussed his right to use the lane with appellants, but used it without asking anyone’s permission.

Kenneth Engler testified that while he was an owner of the 12 acre tract, from January 1953 to May 1969, he used the lane across appellants’ tract “[t]hree, four times a week,” though “[n]ot at all in the wintertime.” N.T. 13. He also testified that he never got appellants’ permission to use the lane. N.T. 10-11.

Appellee-husband testified that he used the lane across appellants’ tract from May 1969, when he and his wife bought the 12 acre tract, until 1972, without ever talking to appellants. He described this use as “three, four times a week,” with some interruptions, for “an average [use] of once a week.” N.T. 25. He further testified that sometime in 1972, he and appellant-husband met, and that “[appellant-husband’s] first statement was that I didn’t own the lane and I stated that I most certainly did,” N.T. 26; that there was some discussion about use of the lane by “the logging people,” and that appellant-husband “assured me that it [the lane] would be repaired,” id.; that the lane was repaired; and that he continued to use it, N.T. 26-27, until May 1978, when appellant-husband blocked the lane with boulders, N.T. 27-28, thereby denying him access to the 12 acre tract, N.T. 29.

The facts as we have just stated them are substantially uncontradicted. Appellant-husband testified that he “never met” Lichtenwalner, N.T. 45, but he did not deny that Lichtenwalner had used the lane. He also testified that “[t]he understanding between [him and Engler] was that he [Engler] had the right to that lane as long as I used the lane,” N.T. 45, but later he made plain that by “understanding” he meant his interpretation of the situation and not any agreement. Thus he said that the Englers’ and later, appellees,’ use of the lane was “with my obvious permission as far as my expression would be,” N.T. 49, and when asked whether he had ever given the Englers or appellees permission, he said he had not, N.T. 60-61:

I never said that [gave permission], just as they never said they owned it.
Q. They just continued to go back and forth over the land?
A. With my permission. They didn’t tell me they owned it. Mr. Orth [appellee-husband] is the first man that told me he owned the land.
N.T. 61.

With respect to this testimony, the lower court stated, quite correctly:

Defendant Willard Werkheiser [appellant-husband] testified that he gave his “obvious permission” to use the lane. This “obvious permission” was Defendant’s assumption that the use was permissive during the 21-year period. Having not been communicated to any user, Defendant’s “obvious permission” was no permission at all. The Defendant’s mere failure to object cannot be deemed the equivalent of his giving permission. See Tarrity v. Pittston School District, 16 Commonwealth Ct. 371, 328 A.2d 205 (1974).
Slip op. at 10.

On these facts, the first issue we must decide is the effect of appellants having given Frank Noecker permission to use the lane. For a use based on permission cannot ripen into a prescription; the owner of the land used must be given notice that the use is hostile, and the use must thereafter continue for the full prescriptive period. See Shinn v. Rosenberger, 347 Pa. 504, 32 A.2d 747 (1943); Johns v. Johns, 244 Pa. 48, 90 A. 535 (1914); See also, Williams v. Fears, 248 Ark. 486, 452 S.W.2d 642 (1970); Kiernan v. Kara, 7 N.J.Super. 600, 72 A.2d 402 (Ch.Div.1950); Foley v. Lyons, 85 R.I. 86, 125 A.2d 247 (1956); Wiegand v. Riojas, 547 S.W.2d 287 (Tex.Civ.App.1977). Appellants argue that there was no proof that they were given notice that the use of the lane across their tract was hostile; therefore, they say, Noecker’s permissive use could never ripen into a prescription. We are not persuaded by this argument, however, for it is based on the premise that the only event that could start the prescriptive period running was an express statement by a successor to Noecker’s title that he was making a hostile use of the lane. This premise, in our opinion, is mistaken.

Suppose that A gives B permission to use a lane across A’s property, Blackacre. If A revokes the permission, and B nevertheless continues to use the lane across Blackacre, B’s use will constitute notice of a hostile claim. Kiernan v. Kara, supra; Foley v. Lyons, supra. If A sells Blackacre, the sale will have the effect of revoking the permission that A gave B. See Puleo v. Bearoff, 376 Pa. 489, 103 A.2d 759 (1954). See also Kiernan v. Kara, supra; Foley v. Lyons, supra. Thus, if appellants had sold their tract, the permission to use the lane across it, given by appellants to Noecker, would have been revoked. If Noecker’s successors in title nevertheless continued to use the lane, the use would have been hostile, and if continued for 21 years, would have ripened into a prescriptive easement.

Appellants, of course, did not sell their tract; instead, Noecker sold his. In our opinion, however, this difference is immaterial. Noecker could not transfer appellants’ permission that he could use the lane across appellants’ tract to Frank Lichtenwalner and Kenneth H. Engler, when he sold the 12 acre tract to them, for appellants’ permission was personal to Noecker. Noecker’s sale of the 12 acre tract therefore had the effect of revoking appellants’ permission to use the lane across appellants’ tract. If Lichtenwalner and Engler nevertheless continued to use the lane—and they both testified, and appellant did not deny, and the chancellor found, that they did—the use was hostile. The prescriptive period therefore started to run. Since the hostile use continued for over 21 years—from 1953 to 1969 (Lichtenwalner and the Englers), and 1969 to 1978 (appellees)—it ripened into a prescriptive easement.

The case might be different—at least, further analysis would be required—if appellants had not known of Noecker’s sale of the tract and of the continued use of the lane by Noecker’s successors-in-title. But appellants did know. In these circumstances we see no reason to hold that appellants could preclude prescription—could prevent the prescriptive period from running—by sitting back and silently watching the use continue uninterrupted, and then later assert that the use had proceeded with appellant-husband’s “obvious permission.” If appellants wished to preclude prescription, they had to do something, as, for example, notify Noecker’s successors-in-title that they were not to use the lane, and then, if the use continued, block the lane or obtain an injunction against its use.

We are aware that in Margoline v. Holefelder, 420 Pa. 544, 218 A.2d 227 (1966), it is said, in dictum, that “a prior permissive use by a predecessor in title will be deemed to continue until the contrary is shown.” Id., 420 Pa. at 547, 218 A.2d at 229. However, we do not understand this statement as inconsistent with our decision. The Court did not have before it the issue before us—whether a permission given a predecessor in title is revoked when that predecessor sells his property; the court did not say what had to be “shown” to prove “the contrary.” Moreover, in Loudenslager v. Mosteller, 453 Pa. 115, 307 A.2d 286 (1973), the Court upheld the chancellor’s finding that even though the initial use had been permissive, a prescriptive easement had been acquired by more than 21 years of open and hostile use. While this decision is not expressly on point, for it did not expressly decide what we decide today—that a prior permission is revoked when the person to whom the permission was given sells his property—it is consistent with our decision.


author: HESTER, Judge:

text:
    451 A.2d 1029
    Paul F. BECKER, Appellant, v. Marian Fuchs MONTGOMERY, a/k/a Marian Trexler, a/k/a Marian Montgomery Trexler, Executrix of the Last Will and Testament of Edward Fuchs, deceased.
    Superior Court of Pennsylvania.
    Argued April 12, 1982.
    Filed Oct. 22, 1982.

      David Paul Andrews, Hollidaysburg, for appellant.
    Frederick B. Gieg, Jr., Altoona, for Fuchs, appellee.
    James H. English, Altoona, for John Fuchs, participating party.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

Appellant, Paul F. Becker, has appealed the order of a Court en banc of the Court of Common Pleas of Blair County, dated June 1, 1981, which dismissed his exceptions to, and otherwise affirmed and sustained, the adjudication and decree nisi of the late Honorable Robert B. Campbell, former President Judge, dated November 9, 1979.

On November 24, 1976, appellant filed an action in equity requesting specific performance of an agreement of sale of real property, dated May 22, 1972.

The parcel of real estate at issue was owned by Edward Fuchs, who died testate on March 26,1960. Appellee Marian Fuchs Montgomery, also known as Marian Montgomery Trexler (Trexler), was the daughter of said Edward Fuchs and was appointed the Executrix of his Estate pursuant to the terms of his Last Will and Testament. However, letters testamentary were not issued to her until the Will was probated on November 12, 1976, sixteen years after his death.

The agreement of sale, dated May 22,1972, concerning the subject property, which consists of approximately 200 acres, was executed by Becker and Trexler. The agreement was also signed by Harry Deem of the J.W.- Hubler Agency, as the real estate broker and “agent for owner and party of the first part.” The agreement provided for a total sales price of $12,000, with settlement to be made on or before July 1, 1972. Becker paid an earnest money deposit of $400.00 at the execution of the agreement.

Apparently, during the years 1972 through 1976, Becker made various attempts to accomplish the closing of the transaction. Trexler consistently refused to deliver a deed or to probate her father’s will. She stated that the other heirs refused to approve the sale for $12,000.00. However, Trexler subsequently listed the same parcel of real estate with another real estate agency in 1975. On September 13, 1976, she entered into a second agreement of sale for the same parcel with a third party for a purchase price of $67,000. Pursuant to the terms of this second agreement of sale, on November 19, 1976, (“seven days following the probate of the Will of Edward Fuchs”) Trexler executed a deed conveying title to said third party. That deed is currently being held in escrow, pending the outcome of these proceedings.

Appellant has raised numerous issues on appeal. However, due to our decision in this matter, we will address but one issue, to-wit: Is an agreement for the sale of the real estate of a decedent binding and enforceable against the decedent’s estate if it is executed by the executrix of the estate prior to the probate of the will and the formal issuance of letters testamentary?

Concerning this issue, appellant argues that, pursuant to Section 3155(a) of the Probate, Estates and Fiduciaries Code, Act of June 30,1972, P.L. 508 1164, as amended, 20 Pa.C.S.A. Section 3155(a) “[ljetters testamentary shall be granted by the Register to the executor designated in the will, whether or not he has declined a trust under the will.” Appellant argues that, as a result of the word “shall,” the granting of letters testamentary to the designated executor is a mandatory or ministerial act, and not a discretionary act, for the Register. Accordingly, appellant contends that the formal granting of letters testamentary should “relate back” so as to ratify or validate prior acts of the executrix.

Both parties cite McGuire v. Erie Lackawanna Railway Company, 253 Pa.Super. 531, 385 A.2d 466 (1978), in support of their positions. Prior to McGuire, the “relation back” doctrine had been applied to situations wherein the relating back of an executor’s authority would “benefit” the estate. Lovejoy v. Georgeff, 224 Pa.Super. 206, 303 A.2d 501 (1973). In McGuire, this Court concluded that a better test was “. .. whether in all circumstances ‘relation back’ will achieve a just result.” McGuire, supra, 253 Pa.Super. at 535, 385 A.2d at 468.

“McGuire was cited with approval by our Supreme Court in Estate of Gasbarini v. Medical Center of Beaver County, Inc., 487 Pa. 266, 409 A.2d 343 (1979), where it was held that the doctrine should be applied to factual circumstances ‘on all fours’ with those in McGuire. And, as one would expect, McGuire was also followed in D’Orazio v. Locust Lake Village, Inc., 267 Pa.Super. 124, 406 A.2d 550 (1979), another case almost factually identical to McGuire.” Wilkes-Barre General Hospital v. Lesho, 62 Pa.Cmwlth. 222, 226, 435 A.2d 1340, 1342 (1981).

However, we find that McGuire, supra, and its progeny, are distinguishable from the instant case. These cases all concern the circumstances by which an estate may sue or be sued, prior to the formal appointment of an administrator. In all of these cases, the decedent died intestate. In McGuire, supra, Judge Spaeth, who formulated the “just result” test, distinguished that case from Lovejoy, supra, since, in Lovejoy, “. . . when the complaint was filed, the identity of the administrator was uncertain; . . . . ” 253 Pa.Super. at 537, 385 A.2d at 469. Judge Spaeth concluded that this type of “instability” was not present in McGuire, due to the fact that the administrator had paid the filing fee for the issuance of letters of administration, prior to his filing of a complaint, in his capacity as administrator of his daughter’s estate and prior to the expiration of the applicable statute of limitation. The only remaining act, the posting of bond, was accomplished approximately three weeks later. Therefore, Judge Spaeth concluded that the posting of the bond, which legally finalized the administrator’s appointment, “related back” so as to validate the prior filing of suit by the administrator prior the expiration of the statute of limitations.

The instant case is basically distinguishable from McGuire and other cases involving a decedent who has died intestate, since the decedent’s will specifically appoints Trexler as executrix.

Therefore, we hold that the granting of letters testamentary to an executrix who has been specifically appointed in a will relates back so as to validate somé acts previously performed by the executrix. However, the question thus becomes, what type of acts are so validated?

In support of his position, appellant cites Beckman v. Owens, 135 Pa.Super. 404, 408, 5 A.2d 626, 627 (1939), in which this Court held:

“. . . [A]n executor ‘derives his authority to act from the will. The granting of the letters testamentary by the Register of Wills is a pro forma act, to give effect to the will of the testator.’ .. . ‘[PJarties, upon whom is a necessity of present action, may proceed on the presumption that [the executor appointed] will accept, and their action is valid until he actually renounces, or they have notice that he will not accept.’ ” [Citations omitted], (emphasis supplied).

and, 135 Pa.Super. 408, 5 A.2d on page 627:

An executor, before the granting of letters, may perform not only acts “merely passive,” but also those of an imperative nature, for example, he may arrange for burial of decedent if there is no immediate next of kin. It cannot be broadly stated, therefore, that an executor named in a will, under all circumstances, is entirely devoid of authority to represent the estate until the granting of letters.

In Beckman, this Court concluded that a creditor of the decedent could file suit against the executor appointed in the decedent’s will, prior to the probate of the will and issuance of letters testamentary. However, in Beckman, supra, the court also concluded that the appointment in the will “ ‘. . . is only provisional, and requires to be approved by the law before it is complete; and therefore the title to the office of executor is derived rather from the law than from the will.’ ” [Citing Shoenberger’s Executors v. Lancaster Savings Institution, 28 Pa. 459, 466], 135 Pa.Super. at 406, 5 A.2d at 627.

“In Lowrie v. Dollar Savings and Trust Company, 266 Pa. 135, 139, 109 A. 607, 608 the Supreme Court said: ‘The appointment of one competent to act as executor avails to make him a representative of the estate so far as relates to acts in which he is merely passive, such as receiving notice of the dishonor of a note (Schoenberger’s Executors v. Lancasters Savings Institution) but this seems to be as far as our decisions go.’ ” Beckman, supra, 135 Pa.Superior Ct. at 407, 5 A.2d at 627.

Therefore, the Beckman Court concluded that the filing of suit against the designated executor was valid as being “merely passive”. The Supreme Court of Pennsylvania in Purman’s Estate, 334 Pa. 238, 244, 5 A.2d 906, 909 (1939) further elaborated upon Beckman, supra, by concluding that “. . . collecting all decedent’s papers and documents and reading, filing and disposing of the same . . . was necessary for the proper conservation and administration of the estate, was done by the representative of the executor, and under such circumstances the letters of administration [testamentary], when granted, relate back so as to validate the acts previously performed. [Citations omitted].” (Emphasis supplied).

Purman’s Estate was recently quoted with approval by the Supreme Court in Commonwealth v. Sourbeer, 492 Pa. 17, 19, 422 A.2d 116, 121 (1980), in which the Court held that an executor had authority to consent to the search of the decedent’s residence, prior to the issuance of letters testamentary, since the search was “. . . for the conservation and administration of the estate.”

In the instant case, the execution of the agreement of sale by Trexler cannot be considered as “merely passive” in nature. Furthermore, there is no evidence in the record which would support a conclusion that the immediate sale of the property, prior to the issuance of letters testamentary, was necessary for the conservation and administration of the estate.

Our scope of review in this matter is outlined by the Pennsylvania Supreme Court in Aiken Industries, Inc. v. Estate of Wilson, 477 Pa. 34, 39, 383 A.2d 808, 816-817 (1978):

As an initial matter, it is to be observed that the function of this Court on an appeal from an adjudication in equity is not to substitute its view for that of the lower court; our task is rather to determine whether “a judicial mind, on due consideration of all the evidence, as a whole, could reasonably have reached the conclusion of the chancellor.” Masciantonio Will, 392 Pa. 362, 367, 141 A.2d 362, 365 (1968). See also Yuhas v. Schmidt, 434 Pa. 447, 258 A.2d 616 (1969). A chancellor’s findings of fact, approved by a court en banc, have all the force and effect of a jury’s verdict if they are supported by adequate evidence and ordinarily will not be disturbed on appeal. Jacobson & Co. v. International Environmental Corp., 427 Pa. 439, 235 A.2d 612 (1967).

See also Gilmore v. Northeast Dodge Company, Inc., 278 Pa.Super. 209, 211, 420 A.2d 504, 505 (1980).

Our review of the record reveals that the Chancellor’s findings of fact were approved by a court en banc; they are supported by adequate evidence and will, therefore, not be disturbed on appeal.

Order affirmed.

      . We initially note that the present appeal only concerns specific performance of the agreement and does not, otherwise, address any issues concerning legal damages.

      . The agreement of sale does not specify that Trexler executed in her fudiciary capacity. However, the agreement does describe the property as “the Edward Fuchts (sic) Estate”.

      . The lower court properly refused to address any issues concerning the validity of this deed.

      . Appellant raises additional issues seeking to interpret the agreement of sale dated May 22, 1972, namely:
      1. Did the agreement of sale contain an obvious ambiguity regarding the parties to the agreement of sale?
      2. If so, should parol evidence have been admitted to resolve said ambiguity?
      3. Was the subsequent agreement of sale improperly admitted into evidence?
      Because we find this agreement to be unenforceable against the estate of Edward Fuchs, we need not respond to these issues.

      . Although, Beckman, supra, involved a decedent who had died testate, Judge Spaeth, in McGuire, relied on the “presumption,” as enunciated in Beckman.


author: ROWLEY, Judge:

text:
    451 A.2d 1033
    Joseph A. WALHEIM and Mary Joan Walheim, as parents and natural guardians of Thomas P. Walheim, and Joseph A. Walheim and Mary Joan Walheim, in their own right, Appellants, v. Donald KIRKPATRICK and Portia B. Kirkpatrick, his wife.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1982.
    Filed Oct. 22, 1982.
    Petition for Allowance of Appeal Denied Feb. 11, 1983.

      Philip E. Berens, Philadelphia, for appellants.
    Louise Herzl-Betz, Philadelphia, for appellees.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   ROWLEY, Judge:

This is an appeal from a judgment in favor of appellees which was entered following the denial of appellants’ motions for new trial and judgment non obstante verdicto.

Appellants instituted a trespass action for personal injuries suffered by appellant, Thomas Walheim, a minor, while attempting to dismount from a trampoline owned by appellees. It was erected in the backyard of appellees’ home for use by their own and neighborhood children. The issue at trial was whether appellees were negligent in maintaining the trampoline on their property and permitting children to use it.

At trial, appellants sought to introduce the expert testimony of Charles Pagano, an assistant professor and head swimming coach at West Chester State College, concerning the safe design and use of trampolines. The witness’s extensive education in the field of physical education was described along with his experience with trampolines in the course of teaching gymnastics to children of all ages. The witness testified that the trampoline involved in the accident was of a recreational, non-folding, non-instructional type. He was unable, however, to identify the manufacturer. Sustaining an objection by appellees, the trial court refused to permit the witness to testify as to certain standards for the safe use and maintenance of trampolines promulgated by various trampoline manufacturers and associations, including the American Society for the Testing of Materials, Nissen Trampoline Corporation and the United States Gymnastic Safety Association. The testimony was prohibited for two reasons: 1) it was irrelevant because there was no testimony relating the safety standards to this particular trampoline; and 2) the standard of care to be applied' to appellants was within the common knowledge of the jurors and therefore was not a proper subject for expert testimony. The exclusion of this testimony is the basis for this appeal.

The admission of expert testimony is a matter within the discretion of the trial court and will not be reversed absent an abuse of discretion. Laubach v. Haigh, 433 Pa. 487, 252 A.2d 682 (1969). In this case, we find that the exclusion of the testimony constituted such an abuse of discretion. Therefore, we will vacate the judgment and remand for a new trial.

We have concluded that the proposed testimony was relevant, since there was in fact testimony connecting the standards to appellees’ trampoline. The witness stated several times that the various safety standards in question pertained to the use of all trampolines, both instructional and recreational, that the standards were “universally accepted”, and that the standards were available to the public. Expert witnesses may refer to published works on the matter which is the subject of their testimony. Cummings v. Nazareth Borough, 430 Pa. 255, 242 A.2d 460 (1968); McDonough v. United States Steel Corp., 228 Pa.Super. 268, 324 A.2d 542 (1974). Furthermore, safety standards promulgated by organizations active in a particular field are admissible even though the defendants were unaware of the standards. See Cummings v. Nazareth Borough, supra.

We have also concluded that the safe use of a trampoline is not within the common knowledge of the average juror. Therefore, it was a proper subject for expert testimony. Densler v. Metropolitan Edison Co., 235 Pa.Super. 585, 345 A.2d 758 (1975). In view of the witness’s special training and experience, he should have been permitted to describe the accepted customs and standards for the safe use of trampolines. This knowledge was relevant to the central issue of negligence. Of course, the ultimate determination of whether appellees were negligent would be left to the jury. See Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981).

Judgment vacated and case remanded for a new trial.

Jurisdiction relinquished.

      . This case was previously before our court. Walheim v. Kirkpatrick, 287 Pa. Super. 130, 429 A.2d 1134 (1981). The trial court’s order denying appellants’ motion for judgment n.o.v. was affirmed. However, the appeal from the court’s order denying appellants’ motion for a new trial was quashed, since the order had not been reduced to judgment.

      . As appellants point out in their brief, during voir dire only one prospective juror stated that he had ever even used a trampoline.


author: McEWEN, Judge:

text:
    451 A.2d 1035
    COMMONWEALTH of Pennsylvania v. Johnnie BRADFORD, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1981.
    Filed Oct. 22, 1982.
    Petition for Allowance of Appeal Denied Feb. 7, 1983.

      Larry A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   McEWEN, Judge:

We here consider an appeal from a judgment of sentence imposed after the appellant was found guilty of robbery, following a non-jury trial, and sentenced to serve a term of imprisonment of not less than sixteen months nor more than seven years. Appellant argues that the trial judge should not have permitted identification testimony from two witnesses since that testimony was the product of an impermissibly suggestive pre-arrest identification procedure. We affirm.

The victim of the robbery testified that a man snatched her pocketbook as she walked out of an underpass in downtown Harrisburg at approximately 9:00 a.m. She got a “good look at a profile”, including a look at his forehead, cheeks, chin and one eye. While she engaged in a screaming pursuit of the offender for several minutes, she was able to observe the facial characteristics for three to four seconds.

A second identification witness, who had been attracted to the crime by the screams of the victim, testified that while he ran toward the scene he had an opportunity to observe the face of the robber. This witness testified that he observed the face of the assailant on two separate occasions for a minimum total of from eight to ten seconds. Appellant testified that he was not in any way involved and that he was not even in the area of the crime.

The record reflects that the detective assigned to the investigation displayed a single photograph to each of the two witnesses on separate occasions shortly after the robbery. When the police displayed the photograph of appellant to the victim two days after the crime, the victim indicated that her observation of the offender had been a view of his profile and since the photograph was a front facial picture, she could not positively identify appellant from the photograph. At the subsequent preliminary hearing nineteen days after the occurrence, the victim indicated that while appellant had less hair than the robber, she testified that he was the right size, had the right build and possessed almost identical features as her assailant. At the time of the trial, five months after the occurrence, the victim provided a positive identification of appellant as the robber. The other eyewitness identified the photograph of appellant as the robber when the witness viewed the photograph nine days after the occurrence, and this witness made a positive identification of the appellant at both the preliminary hearing and at the trial.

The appellant contends that the detective engaged in a highly suggestive and, therefore, impermissible pre-arrest identification procedure that should have compelled the suppression of any subsequent court room identification. The appellant, for that reason, filed a motion to suppress identification testimony. The learned Dauphin County Common Pleas Court Judge Warren G. Morgan, by order of April 14, 1980, denied the motion of appellant to suppress that evidence after ruling, “That the in-court identification of the defendant was not the product of an illegal procedure.”

That ruling appears to (1) provide approval of the identification that had been made by the victim and the eyewitness at the preliminary hearing and (2) serve as a refusal to suppress such identification testimony at the trial itself. Following his conviction, appellant reasserted his suppression claim in the motion for new trial. This motion was denied by the distinguished Dauphin County Common Pleas Court Judge William W. Lipsitt on the basis of the Memorandum Opinion of Judge Morgan, who had conducted the suppression hearing and who had entered the order denying the motion to suppress the identification testimony.

We deplore the single photograph procedure utilized by the police officer in this case. The display of a single photograph to a witness by the police in this case was a clearly suggestive procedure. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); United States v. Milhollan, 599 F.2d 518 (3rd Cir.1979). It does not necessarily follow that a suggestive pre-trial identification procedure renders a trial identification inadmissible. But such suggestive conduct by the police does create a further burden upon the Commonwealth, namely, a duty to fulfill the condition precedent described in Commonwealth v. Fowler, 466 Pa. 198, 203, 352 A.2d 17, 19 (1976):

Following a suggestive pre-trial identification procedure, a witness should not be permitted to make an in court identification unless the prosecution establishes by clear and convincing evidence that the totality of the circumstances affecting the witness’s identification did not involve a substantial likelihood of misidentification. (citations omitted).

It is thus clear that the totality of the circumstances must not reflect the likelihood of misidentification and also clear that the Commonwealth has the burden of so proving. The Pennsylvania Supreme Court proceeded in Fowler, supra, to describe the study that the court must conduct as it determines whether the Commonwealth has met that burden:

A consideration of the totality of the circumstances requires a close examination of (1) the suggestive factors involved in the identification process, and (2) whether or not, despite the suggestive factors involved in the process, other factors are present which clearly and convincingly establish that the witness’s identification has an “independent origin” in the witness’s observations at the time of the crime, (citations omitted). Id., 466 Pa. at 204, 352 A.2d at 20.

The treatise upon this area of the law provided by our Supreme Court in Fowler, supra, included a reiteration of the factors that had earlier been expressed by the United States Supreme Court and the Third Circuit Court of Appeals as the criteria for consideration in the determination of whether the identification was reliable. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); United States v. Higgins, 458 F.2d 461 (3rd Cir.1972). Those criteria may be summarized as follows:

(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the degree of attention of the witness; (3) the existence of any discrepancies between the actual description of the defendant and the description supplied by the witness prior to the confrontation or photographic identification; (4) the manner in which the pre-trial identification was conducted; (5) any previous identification by the witness of some other person; (6) any previous identification of the defendant himself; (7) the level of certainty, including any failure, demonstrated by the witness at the time of the identification; and (8) the lapse of time between the crime and the pre-trial identification.

A consideration of the totality of the circumstances in this case leads us to conclude that the identification testimony supplied by the victim at the trial was sufficiently independent of the suggestive pre-trial identification procedure that had been employed by the police. The most important factor in the totality test is the opportunity of a witness to view the suspect at the time of the crime, Commonwealth v. Davis, 293 Pa.Super. 447, 439 A.2d 195 (1981), and we note that in the instant case the victim was able to view the suspect at the time of the crime and did so at close range, at the brink of the underpass that was illuminated by sunlight.

Whenever the victim of a crime has an opportunity to observe the criminal, the impression of the face of an assailant is etched upon the prey by the terror of the occasion; in addition, in this instance, the victim was an artist by profession, so that the victim here would be by training and reflex, if not by instinct, devoted to detail. Nor was the opportunity of the victim to observe her assailant restricted to the commission of the crime since the culprit continually glanced over his shoulder at the victim as she pursued him. We recognize that the victim did not positively identify appellant when she was shown his picture but are mindful that the victim had not during the crime and pursuit observed appellant from the front facial angle displayed in the photograph; we further realize that the victim could not positively identify appellant at the preliminary hearing but are mindful that the victim testified that appellant was the right size, the right build and possessed almost identical facial features of her assailant, although the appellant had less hair than the robber.

We also conclude that the identification by the other witness of appellant as the individual he pursued at the time of the crime had an independent origin in the observations he made at the time of the crime. He too had the opportunity to view the face of the perpetrator at the time of the robbery and did so without obstruction for at least eight to ten seconds on a clear morning. The view of this witness was face-on at a distance of about thirty to forty yards while the assailant fled the scene and ran in the direction of the witness; and when the appellant changed course, the witness continued to chase for an additional forty to fifty yards during which the witness saw the face of appellant as he glanced behind his pursuer.

Appellant asserts that neither witness observed the perpetrator for such a sufficient amount of time that would enable a certain identification. The total description of the opportunity that each of the two witnesses in this case had to observe the appellant makes clear that the length of time that the opportunity lasts is but one factor to be considered in a determination of whether there was an adequate opportunity to view the culprit. We conclude that each witness did have an adequate opportunity that was sufficient to enable them to identify the perpetrator.

While it is true that the Commonwealth failed to present evidence concerning the comparisons between the actual physical characteristics of the appellant and the descriptions supplied after the incident by the victim and by the witness, we also note that this issue was not explored by the defense.

The facts in the instant case are analogous to those present in Commonwealth v. Townsend, 280 Pa.Super. 155, 421 A.2d 452 (1980). In Townsend, this Court held that the identification was admissible even though the witness viewed the criminal for only a matter of seconds. The Townsend Court relied on the following facts: the witness viewed the criminal from a short distance without obstruction; the attention of the witness was drawn to the events by the screams of the victim; the confrontation occurred within one day of the crime; and the witness was certain and did not hesitate in her identification. The Townsend Court held that the Commonwealth had met its burden of proving independent source for the identification, notwithstanding the fact that the description given by the witness to the police was general.

In the instant case, we determine from a review of the relevant factors that the in-court identification by the witness did not involve a substantial likelihood of misidentification. Our analysis of the facts in the instant case and the applicable law leads us to conclude that the trial court did not err when it denied the motion of the appellant to suppress the identification of the witnesses.

Judgment of sentence affirmed.


author: MONTEMURO, Judge:

text:
    451 A.2d 1038
    In the Matter of Richard B. PFLAUM, a/k/a Richard Pflaum. Appeal of Richard PFLAUM.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1982.
    Filed Oct. 22, 1982.

      Harry S. Rosenthal, Wyndmoor, for appellant.

      Ronald T. Williamson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas of Montgomery County denying appellant’s “Petition to Expunge” his arrest records.

On May 21, 1976 appellant, Richard B. Pflaum, was charged with burglary, criminal trespass, theft and disorderly conduct. Following a hearing before a district justice all charges were dropped except for the disorderly conduct charge to which appellant pled guilty.

On April 13,1981, appellant filed a “Petition to Expunge.” On June 17,1981 a “hearing” was held before the Honorable Frederick B. Smillie. The record, at that “hearing”, unequivocally shows that the Commonwealth concurred in appellant’s view that as to the charges dropped, expungement was proper, but did not agree with expunging records pertaining to the disorderly conduct offense. Appellant’s request to introduce testimony in support of his petition was denied. The lower court concluded that “hearing” without judgment and took the matter under advisement. The next day appellant’s petition was denied. On July 7, 1981 appellant filed this appeal. The case was then assigned to the Honorable Vincent Cirillo, who, on August 5, 1981, wrote an opinion supporting the denial of appellant’s petition to expunge.

Appellant contends that the lower court erred in denying his petition to expunge the criminal records pertaining to the charges that were dropped or, in the alternative, that the court erred in denying his petition without first taking 'testimony on the matter. Appellant does not challenge the propriety of the lower court’s refusal to expunge the records concerning the disorderly conduct offense.

The brief record from the expungement hearing best describes what transpired:

THE COURT: Let’s take the case of Richard Pflaum, Petition to Expunge.
MR. SOMMAR: Your Honor, Mr. Ditter of our office answered this Petition to Expunge.
In that answer he admitted to the facts alleged in the Petitioner’s request with the exception of the disorderly conduct, which he felt should not be an expungement.
These arose out of the same incident and the defendant was charged with burglary and criminal trespass and assorted other charges. He plead guilty to disorderly conduct summary offense before District Justice Zepp.
For that reason, Mr. Ditter felt that the other charges should be expunged. However, the disorderly conduct should not.
MR. ROSENTHAL: Your Honor, I would like to—my understanding as I was not involved in this case which goes back to 1976, but my understanding is that Mr. Pflaum was charged with criminal conspiracy, burglary and theft. And I believe there is a possibility that he was not charged with disorderly conduct originally.
What then happened was a hearing was held before District Justice Zepp and the conspiracy, burglary and theft charges were dropped and Mr. Pflaum, at that point pleaded guilty to the summary offense of disorderly conduct.
So, as a matter of mechanics, I wonder if the record is expunged in its entirety would in fact, thereby expunge the conspiracy, burglary and theft and the disorderly conduct would not appear anyway other than before District Justice Zepp and his records.
So, I am really frankly, Your Honor, not sure what the mechanics would be in this kind of situation.
THE COURT: Mr. Sommar, You have nothing to add other than what was said in the answer?
MR. SOMMAR: That is correct, Your Honor.
THE COURT: All right. We will take it under advisement.
MR. ROSENTHAL: Your Honor, if I might just point out to Mr. Pflaum, has come from Pittsburgh [sic] to attend the hearing. If your Honor would like testimony may it be done this moring [sic] so that Mr. Pflaum need not come back?
THE COURT: There is no testimony to be taken.
MR. ROSENTHAL: Other than he is a college graduate and he has a solid work history, and no prior arrests before or after—
MR. SOMMAR: Your Honor, all those facts were admitted in our answer.
THE COURT: How old are you now?
MR. PFLAUM: 32.
THE COURT: Where do you live now?
MR. PFLAUM: I live in Pittsburg, [sic]
THE COURT: Where?
MR. PFLAUM: The north side of Pittsburg, [sic]
THE COURT: Where?
MR. PFLAUM: 3164 McClure Avenue.
THE COURT: All right.
MR. ROSENTHAL: Thank you, Your Honor.

The lower court opinion justifying the denial of appellant’s petition to expunge the records of the charges that were dropped stated:

The expungement of the charges that were dropped is a matter within the sound discretion of the trial court. Where a guilty plea to a lesser charge is accepted, the Commonwealth, by inference, has shown some culpability on the part of the defendant in reference to the other charges. The burden then shifts to the defendant to show non-culpability to a hearing, and further, to demonstrate that his right to be free from the harm ancillary to an arrest record exceeds the Commonwealth’s interest in maintaining arrest records. West [Wert] v. Jennings, 249 Pa.Super. 467, 378 A.2d 390 (1977). The defendant, at his expungement hearing, did not meet his burden because he presented no evidence to show how he was being harmed by his arrest being on his record. Therefore, it was well within the Court’s discretion to deny the petitioner’s Petition to Expunge the burglary, theft, and conspiracy charges from his record.
The trial court was correct in denying the Petition to Expunge because a conviction cannot be expunged, and the petitioner failed to meet his burden of showing lack of culpability at the hearing. (Emphasis added)

It is well settled in Pennsylvania that an individual has the right, as an adjunct to due process, to seek expungement of his criminal records Commonwealth v. Rose, 263 Pa.Super. 349, 397 A.2d 1243 (1979); Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976). Due process requires that a hearing be held to effectuate that right:

Punishment of the innocent is the clearest denial of life, liberty and property without due process of law. To remedy such a situation, an individual must be afforded a hearing to present his claim that he is entitled to an expungement—that is, because an innocent individual has a right to be free from unwarranted punishment, a court has the authority to remedy the denial of that right by ordering expungement of the arrest record (footnote omitted). Commonwealth v. Malone, 244 Pa.Super. at 69, 366 A.2d at 588.

We do not concur in the lower court’s unsupported conclusion that a guilty plea to a lesser charge necessarily implies appellant’s guilt to the other charges which were dropped. There are numerous reasons why the Commonwealth would decide to drop charges against a defendant; one certainly being that the Commonwealth believes it does not have sufficient evidence to establish a prima facie case. Nor do we agree with the lower court that the burden of proof of non-culpability shifted to appellant. The burden rested with the Commonwealth to introduce “compelling evidence to justify retention of such information.” Commonwealth v. Malone, supra 244 Pa.Super. at 70, 366 A.2d at 589. (as in the instant case, it was the Commonwealth’s burden to go forward where the charges had been dismissed at a preliminary hearing). The lower court further found that appellant had failed to meet his burden and used that finding to support its denial of appellant’s petition. We are mystified, however, as to how appellant could be found to have failed to meet a burden of proof when he was not permitted to introduce testimony. The above proceedings simply do not comport with due process and, in effect, the lower court’s action denied appellant the hearing to which he was entitled. Nevertheless, remanding the case to the lower court for purposes of conducting a hearing will not be necessary.

To expunge an individual’s criminal record, a court must be satisfied that the individual’s interest in being free from the disabilities created by the record outweigh the Commonwealth’s interest in retaining them. Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978).

In support of expungement, appellant set forth the following allegations in his petition:

7. Except for the aforesaid incident, Petitioner has no previous or subsequent felony or misdemeanor arrests or convictions in any jurisdiction.
8. Petitioner is a 1970 graduate of Delaware Valley College with a B.S. Degree in Animal Husbandry.
9. Petitioner has experienced substantial difficulties in obtaining suitable employment due to his criminal arrest and record described aforesaid. Further, Petitioner has experienced substantial difficulties and impediments to being accepted to post-college graduate school due to the aforesaid. As a result, Petitioner is now employed as a taxi-cab driver.
10. The presence of the aforesaid records in the files of the agencies heretofore described is unjustified, and is and will be harmful to Petitioner’s reputation and calling.

The Commonwealth stipulated to each of the above allegations and consented to the expungement of the charges which had been dropped. We find the facts of record sufficient to justify expunging appellant’s records pertaining to those charges.

The order of the lower court is reversed and the case remanded to that court with directions to enter an order granting expungement. This court does not retain jurisdiction.


text:
    September 17, 1982
    450 A.2d 1057
    Bognar v. Bognar, Appellant.
    Submitted December 14, 1981.
    John P. Karoly, Jr., for appellant; April L. Cordts, for appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Order affirmed.


text:
    450 A.2d 1057
    Commonwealth v. Batezell, Appellant.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.
    Submitted March 3, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Affirmed.


text:
    450 A.2d 1058
    Commonwealth v. Brown, Appellant.
    Petition for Allowance of Appeal Denied Dec. 28, 1982.
    Submitted April 23, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence affirmed. Jurisdiction of the Superior Court of Pennsylvania is relinquished. The lower court shall enforce the sentence.


text:
    450 A.2d 1058
    Commonwealth v. Bundy, etc., Appellant.
    Submitted January 13, 1982.
    John H. Corbett, Jr., Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Judgment of sentence affirmed.

VAN der VOORT, J., concurred in the result.


text:
    450 A.2d 1058
    Commonwealth v. Bunevitch, Appellant.
    Submitted June 3, 1981.
    Vito P. Geroulo, for appellant; Ernest D. Preate, Jr., District Attorney, for Commonwealth, appellee.
    Before McEWEN, MONTEMURO and SHERTZ, JJ.
   The judgment of sentence of the learned Lackawanna County Common Pleas Court Judge S. John Cottone is affirmed.

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


text:
    450 A.2d 1059
    Commonwealth v. Buskirk, Appellant.
    Argued June 22, 1982.
    John J. Zettlemoyer, Jr., for appellant; Daniel George Spengler, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   The judgment of sentence of the learned Northampton County Common Pleas Court Judge . Robert A. Freedberg is affirmed.


text:
    450 A.2d 1059
    Commonwealth v. D’Amico, Appellant.

      Submitted May 4, 1982.
    A. Charles Peruto, Jr., for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1059
    Commonwealth v. Gellock, Appellant.
    Submitted May 11, 1982.
    Anthony C. Santore, for appellant; James J. Narlesky, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1059
    Commonwealth v. Giles, Appellant.
    Submitted May 4, 1982.
    Daniel M. Preminger, for appellant; Paul Steven Diamond, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   Order affirmed.

SPAETH, J., concurred in the result.


text:
    450 A.2d 1060
    Commonwealth v. Grant, Appellant.
    Submitted December 15, 1981.
    Daniel-Paul Alva, for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge William M. Marutani is affirmed.


text:
    450 A.2d 1060
    Commonwealth v. Hannon, Appellant.
    Petition for Allowance of Appeal Denied Jan. 24, 1983.

      Argued February 2, 1982.
    John Rogers Carroll, for appellant; Joseph Giovannini, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   Order affirmed.

McEWEN, J., filed a memorandum dissenting opinion.


text:
    450 A.2d 1060
    Commonwealth v. James, Appellant.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.
    Submitted December 15, 1981.
    Allan M. Tabas, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   Judgment of sentence dated March 9, 1981 is affirmed.


text:
    450 A.2d 1061
    Commonwealth v. Lewis, Appellant.

      Argued November 5, 1981.
    Linda D. Cicco, Assistant Public Defender, for appellant; David M. McGlaughlin, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1061
    Commonwealth v. Meade, Appellant.
    Submitted June 13, 1980.
    Brian S. Quinn, for appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., WICKERSHAM and LIPEZ, JJ.
   The order of the lower court is affirmed.


text:
    450 A.2d 1061
    Commonwealth v. Roncase, Appellant.

      Submitted March 31, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   The judgment of sentence of the distinguished Montgomery County Common Pleas Court Judge Horace A. Davenport is affirmed.


text:
    450 A.2d 1062
    Commonwealth v. Smith, Appellant.
    Petition for Allowance of Appeal Denied Feb. 28, 1983.
    Submitted November 10, 1981.
    Vincent R. Baginski, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   Judgment of sentence dated January 28, 1981 is affirmed.


text:
    450 A.2d 1062
    Commonwealth v. Warner, Appellant.

      Submitted March 30, 1982.
    Mitchell S. Strutin, for appellant; Ann Carol Lebowitz, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Herbert R. Cain, Jr. is affirmed.


text:
    450 A.2d 1062
    Commonwealth v. Warren, Appellant.
    Petition for Allowance of Appeal Denied Dec. 28, 1982.
    Submitted March 30, 1982.
    Allen N. Abrams, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Edward J. Blake is affirmed.


text:
    450 A.2d 1062
    Commonwealth v. Westerfer, Appellant.
    Petition for Allowance of Appeal Denied Dec. 22, 1982.

      Argued January 7, 1982.
    Linda DiCecco, Assistant Public Defender, for appellant; David M. McGlaughlin, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 25
    Debpo v. Lee, Appellant.
    Reargument Denied Nov. 19, 1982.
    Argued June 22, 1982.
    Audrey M. Lee, appellant, in propria persona; John Frank Raimondi, for appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Bernard Snyder is affirmed.


text:
    450 A.2d 1063
    Amity, Appellant v. State Automobile Ins. Assoc.

      Argued September 28, 1981.
    Harry Stump, for appellant; David H. Patterson, for appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   Order affirmed.


text:
    450 A.2d 1063
    Commonwealth v. Ames, Appellant.
    Argued March 17, 1980.
    William R. Mosolino, for appellant; Charles A. Bressi, Jr., for appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 554
    Commonwealth v. Baldo, Appellant.
    Reargument Denied Nov. 30, 1982.
    Petition for Allowance of Appeal . Denied Feb. 10, 1983.
    Argued January 26, 1982.
    David H. Weinstein, for appellant; Reginald H. Holder, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1063
    Commonwealth v. Bridell, Appellant.
    Submitted March 1, 1982.
    Francis J. Moran, for appellant; Steven J. Cooperstein, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Order affirmed.


text:
    450 A.2d 1063
    Commonwealth v. Coleman, Appellant.
    Petition for Allowance of Appeal Denied Dec. 28, 1982.
    Submitted May 5, 1982.
    Delores Wilson, for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 1064
    Commonwealth v. Fruster, Appellant.
    Argued March 30, 1982.
    William T. Cannon, for appellant; Nancy Dena Wasser, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Stanley L. Kubacki is affirmed.


text:
    450 A.2d 1064
    Commonwealth v. Gay, Appellant.
    Submitted June 12, 1978.
    Kenneth D. Freeman, for appellant; Edward G. Rendell, District Attorney, for Commonwealth, appellee.

      Before JACOBS, P. J., HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.
   Judgment of sentence is affirmed.

JACOBS, former P. J., did not participate in the consideration or decision of this case.


text:
    450 A.2d 1064
    Commonwealth v. Greener, Appellant.
    Petition for Allowance of Appeal Denied Feb. 14, 1983.
    Submitted May 5, 1982.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Joseph C. Madenspacher, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.

SPAETH, J., concurred in the result.


text:
    450 A.2d 1065
    Commonwealth v. Hammond, Appellant.

      Submitted December 5, 1980.
    George Gershenfeld, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., HESTER and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1065
    Commonwealth v. Hill, Appellant.
    Submitted March 24, 1981.
    Marilyn C. Zilli, Assistant Public Defender, for appellant; Marion E. MacIntyre, First Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1065
    Commonwealth v. Holland, Appellant.
    Submitted May 4, 1982.

      Ronald Segal, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 1065
    Commonwealth v. Jackson, Appellant.
    Petition for Allowance of Appeal Denied Dec. 28, 1982.
    Submitted June 29, 1979.
    John W. Packel, Chief, Appeals Assistant Public Defender, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., SPAETH and STRANAHAN, JJ.

       President Judge John Q. Stranahan of the Court of Common Pleas of Mercer County, Pennsylvania is sitting by designation.

   The judgment of sentence of the lower court is affirmed.


text:
    450 A.2d 1066
    Commonwealth v. Jarvis, Appellant.

      Submitted January 27, 1982.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant; Ronald Eisenberg, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1066
    Commonwealth v. Kenny, Appellant.
    Submitted May 12, 1982.
    Norris E. Gelman, for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   Order affirmed.


text:
    450 A.2d 1066
    Commonwealth v. Kyslinger, Appellant.
    Petition for Allowance of Appeal Granted March 1, 1983.
    Argued November 10, 1981. Gary
    B. Zimmerman, submitted a brief on behalf of appellant; Dara DeCourcy, Assistant District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.

BECK, J., filed a memorandum dissenting statement.


text:
    450 A.2d 1067
    Commonwealth v. Lieb, Appellant.
    Argued January 5,1982.
    Arthur Lucian Zulick, for appellant; James F. Marsh, District Attorney, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   Order affirmed.


text:
    450 A.2d 1067
    Commonwealth v. Martin, Appellant.
    Petition for Allowance of Appeal Denied Dec. 29, 1982.

      Submitted October 21, 1981.
    E. J. O’Halloran, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   Order affirmed.


text:
    451 A.2d 8
    Commonwealth, Appellant v. McCaigue.
    Argued March 9, 1981.
    Stuart M. A. Bliwas, Attorney General, for Commonwealth, appellant; D. Bruce Cahilly, for appellee.
    Before HESTER, DiSALLE and MONTGOMERY, JJ.
   Order affirmed.

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


text:
    450 A.2d 1067
    Commonwealth v. Ortiz, Appellant.
    Submitted May 24, 1982.
    Steven Craig Tolliver, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1068
    Commonwealth v. Selby, Appellant.
    Argued October 21, 1981.
    Robert Sullivan, Jr., for appellant; David J. Brightbill, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1068
    Commonwealth v. Sesso, Appellant.
    Petition for Allowance of Appeal Denied March 1, 1983.
    Argued June 8, 1982.
    Linda C. DiCicco, Assistant Public Defender, for appellant; Joseph Hylan, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    450 A.2d 1068
    Commonwealth v. Simmons, Appellant.
    Submitted June 3, 1982.
    Ronald Segal, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1068
    Commonwealth v. Tate, Appellant.
    Petition for Allowance of Appeal Denied Feb. 1, 1983.

      Submitted May 3, 1982.
    Donald C. Marino, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 1069
    Commonwealth v. Thorpe, Appellant.
    Argued April 21, 1982.
    Maxine Kay Lewis, for appellant; Edward Subashi, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence and order are affirmed.


text:
    450 A.2d 1069
    Commonwealth v. Tillmon, Appellant.
    Submitted June 9, 1982.
    Methuselah Z. I. Bradley, IV, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1069
    Commonwealth v. Weaver, Appellant.
    Petition for Allowance of Appeal Denied March 23, 1983.
    Argued December 14, 1981.
    Chester C. Corse, Jr., for appellant; John A. Kenneff, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1070
    Commonwealth v. Worthy, Appellant.
    Submitted January 26, 1982. Gerald
    Thomas Gervasi, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Order affirmed.


text:
    450 A.2d 1070
    Davis, et al. v. Livingston, Appellant. Davis, et al., Appellants v. Livingston.
    Petition for Allowance of Appeal Denied Feb. 1, 1983.
    Argued December 2, 1981.
    Victor Dell’Alba, for Livingston, appellant (at No. 105) and appellee (at No. 127); Jack M. Hartman, for Davis et al., appellants (at No. 127) and appellees, (at No. 105).
    Before WICKERSHAM, WIEAND and MONTEMURO, JJ.
   Order affirmed.


text:
    450 A.2d 1070
    Edwards, Appellants v. Marie.
    Argued September 2, 1981.
    Nicholas F. Lorenzo, Jr., for appellant; David L. Young, for appellee.

      Before WICKERSHAM, WIEAND and BECK, JJ.
   Judgment affirmed.


text:
    450 A.2d 1070
    In Re Custody of Patton. Appeal of Robert R. Patton.
    Argued April 12, 1982.
    Terry T. Ray, for appellant; Ralph L. S. Montana, for participating party.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Order affirmed.

HESTER, J., filed a memorandum concurring opinion.


text:
    452 A.2d 555
    Krieg v. Omark Industries Inc. et al., Appellants.
    Reargument Denied Dec. 6, 1982.
    Petition for Allowance of Appeal Granted Feb. 10, 1983.
    Argued November 6, 1981.
    Barbara L. Hollenbach, for appellants; Z.R. Bialkowski, for appellees.
    Before SPAETH, BECK and LIPEZ, JJ.
   Appeal quashed.


text:
    450 A.2d 1071
    Lake v. Lake, Appellant.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.
    Submitted March 31, 1982.
    Gregory J. Lake, appellant, in propria persona; Barry M. Miller, for appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   Order affirmed.


text:
    452 A.2d 25
    Mensch, Appellant v. Bryn Athyn Church et al.
    Reargument Denied Nov. 19, 1982.
    Argued May 11, 1982.
    Stuart Marc Golant, for appellant; Joseph R. Musto, for appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Order affirmed.


text:
    450 A.2d 1071
    Orchard v. Septa, Appellant.

      Argued June 9, 1980.
    Norman Hegoe, Jr., for appellant; Carl M. Mazzocone, for appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    450 A.2d 1071
    Triffin, Appellant v. Floria.
    Argued April 5, 1982.
    Robert J. Triffin, appellant, in propria persona; Joanne P. Weil, for appellee..
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Order affirmed.


text:
    450 A.2d 1071
    Tudico v. Hobart Corp. Appeal of Miquon Company.
    Petition for Allowance of Appeal Denied Feb. 17, 1983.
    Argued May 11, 1982.
    John O’Rourke, for appellant; James P. McEvilly, Jr., for appellees.

      Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Order affirmed.


text:
    450 A.2d 1072
    Vitril, Appellant v. Chadderton etc.
    Argued April 15, 1980.
    Richard J. Audino, for appellant; David Goodwin, for appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   The order of June 26, 1979 refusing appellant’s Motion To Remove A Compulsory Non-Suit is affirmed.


text:
    450 A.2d 1072
    Wagner et al., Appellants v. Fairman et al.
    Argued September 28, 1981.
    Blair F. Green, for appellant; William J. Martin, for Fairman, appellees; Philip C. Ursu, for Trunzo, appellees.
    Before CAVANAUGH, MONTERMURO and VAN der VOORT, JJ.
   Affirmed.


text:
    October, 1, 1982.
    452 A.2d 26
    Christie v. Nationwide etc., et al., Appellants.
    Argued September 29, 1981.
    Lee C. McCandless, for appellants; Richard B. Kirkpatrick, for appellees.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   Judgment affirmed.


text:
    452 A.2d 26
    Commonwealth v. Alexander, Appellant.
    Petition for Allowance of Appeal ■ Denied Feb. 2, 1983.
    Submitted April 28, 1982.
    Norman A. Levine, for appellant; Donald E. Williams, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 26
    Commonwealth v. Applegate, Appellant.
    Petition for Allowance of Appeal Denied Jan. 17, 1983.
    Submitted November 6, 1981.
    William A. Fitzpatrick, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   Order affirmed.


text:
    452 A.2d 26
    Commonwealth v. Battles, Appellant.
    Submitted June 17, 1982.
    James A. Villanova, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Order affirmed.


text:
    452 A.2d 27
    Commonwealth v. Beltz, Appellant.
    Submitted May 5, 1982.
    Stanley M. Vasiliadis, for appellant; Donald B. Corriere, District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   The judgment of sentence is affirmed.


text:
    452 A.2d 27
    Commonwealth v. Burger, Appellant.
    Submitted December 5, 1980.
    Elaine De-Masse, Assistant Public Defender, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., HESTER and WIEAND, JJ.
   Judgment of sentence of the lower court affirmed.


text:
    452 A.2d 27
    Commonwealth v. Burns, Appellant.
    Submitted June 22, 1982.
    Joseph C. Santaguida, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Judgment of sentence affirmed. Jurisdiction of the Superior Court of Pennsylvania is relinquished and the lower court is directed to enforce its sentence.


text:
    452 A.2d 28
    Commonwealth v. Campolei, Appellant.
    Submitted February 24, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   The order of the learned Montgomery County Common Pleas Court Judge Vincent A. Cirillo is affirmed.


text:
    452 A.2d 28
    Commonwealth v. Cannon, Appellant.
    Submitted October 20, 1981.
    Herman Weiner, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   The order of the Court of Common Pleas of Philadelphia County is affirmed.


text:
    452 A.2d 28
    Commonwealth v. Fernandez, Appellant.
    Petition for Allowance of Appeal Denied Jan. 20, 1983.
    Submitted September 10, 1981.
    Elias B. Landau, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and CIRILLO, JJ.
   Order denying post conviction relief is affirmed.


text:
    452 A.2d 28
    Commonwealth v. Floyd, Appellant.
    Submitted June 22, 1982.
    Joseph V. Furlong, Jr., for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Judgment of sentence affirmed, jurisdiction of the Superi- or Court of Pennsylvania is relinquished and the lower court is directed to enforce its sentence.


text:
    452 A.2d 1073
    Commonwealth v. Frazee, Appellant.
    Reargument Denied Dec. 13, 1982.
    Submitted January 12,
    1982. William C. Kaczynski, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 29
    Commonwealth v. Frazier, Appellant.
    Submitted February 18, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   Affirmed.


text:
    452 A.2d 29
    Commonwealth v. Harris, Appellant.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.
    Submitted April 27, 1982.
    Paul Bogdon, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 29
    Commonwealth v. Harris, Appellant.
    Submitted January 7, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   The judgment of sentence is affirmed.


text:
    452 A.2d 30
    Commonwealth v. Howell, Appellant.
    Petition for Allowance of Appeal Denied May 10, 1983.
    Submitted March 23, 1982.
    Edward B. Golla, for appellant; Floyd Paul Jones, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    452 A.2d 30
    Commonwealth v. Jeter, Jr., Appellant.
    Submitted May 19, 1982.
    John P. Dohanich, for appellant; Edward J. Tocci, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 30
    Commonwealth v. Jones, Jr., Appellant.
    Petition for Allowance of Appeal Denied March 3, 1983.
    Argued February 16, 1982.
    Raymond Roger Williams, Assistant Public Defender, for appellant; Andrew S. Kovach, Assistant District Attorney, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   Affirmed.


text:
    452 A.2d 30
    Commonwealth v. Kelly, Jr., Appellant.
    Submitted April 5, 1982.
    Edwin B. Barnett, for appellant; Michael J. Kane, District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 31
    Commonwealth v. Lomax, Appellant.
    Submitted January 13, 1982.
    John A. Halley, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Order affirmed.


text:
    452 A.2d 31
    Commonwealth v. Magwood, Appellant.
    Petition for Allowance of Appeal Granted March 17, 1983.

      Submitted January 11, 1982.
    John H. Corbett, Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 31
    Commonwealth v. Mansberry, Appellant.
    Submitted June 15, 1982.
    John W. Hardisty, for appellant; Charles J. Morris, District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Affirmed.