author: HOFFMAN, Judge:

text:
    615 A.2d 1322
    COMMONWEALTH of Pennsylvania v. Clarence JOHNSON, Appellant. COMMONWEALTH of Pennsylvania v. Joseph D’AMATO, Appellant.
    Superior Court of Pennsylvania.
    Argued June 23, 1992.
    Filed Oct. 22, 1992.

      Mitchell S. Strutin, Philadelphia, for appellant in 1063.
    Edward Rudley, Philadelphia, for appellant in 1111.
    Ann C. Lebowitz, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before JOHNSON, FORD ELLIOTT, and HOFFMAN, JJ.
   HOFFMAN, Judge:

These are consolidated appeals from judgments of sentence for first degree murder and related offenses. Appellants, Joseph D’Amato (“D’Amato”) and Clarence Johnson (“Johnson”), present the following claims:

I. Was the instant prosecution of defendant D’Amato barred by a prior agreement or grant of immunity in other unrelated cases; by the double jeopardy clauses of the United States and Pennsylvania Constitutions and 18 Pa.C.S.A. § 110?
II. Was the instant prosecution barred by the applicable statute of limitations?
III. Was counsel for defendant Johnson ineffective for failing to preserve a sufficiency of the evidence claim?
IV. Were statements of the coconspirators properly admitted through the testimony of Commonwealth witnesses Terri Harris, Lt. Kalmar and Steven Moore?
V. Was testimony improperly introduced by the Commonwealth and improperly excluded when offered by the defense?
VI. Were defendants denied their right to confront witnesses through appropriate cross-examination?
VII. Did the trial court commit an abuse of discretion in permitting the introduction of demonstrative evidence, including photographs and a weapon, or in allowing the prosecutor, in a complicated case to use and refer to a photograph display and was evidence of threats made to a Commonwealth witness properly allowed?
VIII. Was there prosecutorial misconduct during the trial?
IX. Was there judicial misconduct during the trial?
X. Did the lower court err in refusing to grant a defense request for severance?
XI. Did the lower court err when it denied defendant Johnson’s motion to suppress an identification and was he entitled to a cautionary instruction under Commonwealth v. Kloiber?
XII. Were the defendants entitled to an accomplice charge as to the testimony of Terri Harris?
XIII. Were the defendants entitled to appellate relief based on cumulative error?

D’Amato Brief at 3 and Johnson Brief at 3. For the following reasons, we affirm.

On September 29, 1988, D’Amato and Johnson were arrested and each was charged with first degree murder, criminal conspiracy, possession of an instrument of crime (PIC) and corrupt organizations. D’Amato successfully moved to quash the information charging him with corrupt organizations. The remaining charges were not affected by this ruling.

Following a trial from May 7 to May 30, 1990, the jury returned guilty verdicts on first degree murder and conspiracy as to both appellants. Johnson was further convicted of corrupt organizations. The court sentenced both appellants to life imprisonment on the murder charges. In addition, D’Amato received a concurrent sentence of five-to-ten years for criminal conspiracy and Johnson received a concurrent sentence of five-to-ten years for corrupt organizations and a consecutive sentence of five-to-ten years for criminal conspiracy. Post-verdict motions were filed on behalf of both appellants and denied on March 22, 1991. This timely consolidated appeal followed.

The trial court made the following findings of fact:

The victim, John Philson, worked as a doorman/lookout at 1649 Federal Street; an illegal lottery house known as the Greenhouse. This establishment was owned by the defendant, Joseph D’Amato, who suspected Mr. Philson of being involved in a robbery of the Greenhouse. Consequently, D’Amato hired co-defendant, Clarence Johnson, to kill John Philson. Clarence Johnson, in turn, hired co-defendant, Steven Williams and one, Leroy Clacks to kill Mr. Philson. Ironically, Mr. Philson, had taken an interest in Leroy Clacks’ girlfriend, Terri Harris, around the same time as this contract was placed on his life. Consequently, on the evening of October 30,1980, Leroy Clacks beat Terri Harris for allegedly sleeping with the victim. Leroy then told Terri to get John and bring him to the 1800 block of West Earp Street to talk about this matter or else he would beat her again. Ms. Harris acquiesced, and returned with John driving his car. Upon arriving they sat and talked for about 10 minutes before Leroy Clacks approached John’s side of the car and they began to talk. Almost instantaneously the defendant, Steven Williams, appeared at the passenger side of the vehicle and told Terri to get out of the car. After she refused, Steven slapped and pulled her out of the car. Steven then pointed a gun at Terri while pushing her and telling her to run. Before Terri ran she noticed the weapon as one she had seen Steven obtain from co-defendants, D’Amato and Johnson. As Terri ran crying she heard shots ring out. She began screaming and ran home.
The police responded promptly at approximately 1:00 a.m. on October 31. Halloween morning reflected a real life horror: the shooting death of John Philson. The decedent was found sitting in the driver’s seat of his car with 3 gunshot wounds to the head. The auto was idling in gear and John had collapsed with his foot on the brake.
Later that morning, Clacks and Williams went to Terri Harris’ apartment. Clacks — stained with blood — and Williams told Terri ... that the shooting was in retaliation for John’s role in a robbery of the Greenhouse.

Opinion, November 7, 1991, Sabo, J. at 2-4.

I.

D’Amato first contends that his prosecution was violative of a prosecutorial agreement, a prior grant of immunity, the double jeopardy clauses of both the United States and the Pennsylvania Constitutions, and 18 Pa.C.S.A. § 110. These claims are meritless.

D’Amato was initially charged with murder, conspiracy to commit murder, conspiracy to commit corrupt organizations, PIC and corrupt organizations. Before trial, he moved to quash these charges based on his prior agreement to cooperate with the Commonwealth in exchange for immunity. Pursuant to that agreement he plead guilty to fourteen counts of bribery and one count of conspiracy, which charges related to the bribery of Philadelphia police officers. The Commonwealth agreed not to charge him with corrupt organizations and to grant him “use immunity.” After hearing testimony and argument on the motion to quash, the lower court granted the motion only as it pertained to the charge of corrupt organizations.

D’Amato now asserts that the instant prosecution for murder, conspiracy to commit murder and conspiracy to commit corrupt organizations violated the prior agreement. We disagree.

At the hearing on the motion to quash, D’Amato’s own attorney who had earlier represented him in the bribery case, specifically acknowledged that the Commonwealth never agreed to forego a homicide prosecution. N.T., Motion to Quásh, 6/12/89 at 32. Hence, any claim that the instant murder prosecution is barred by the agreement not to prosecute is meritless. Similarly, the charges of conspiracy to commit murder and conspiracy to commit corrupt organizations are not barred by the earlier agreement because the agreement only stated that D’Amato would not be prosecuted on corrupt organizations charges.

Nevertheless, D’Amato urges that even if his prior agreement with the Commonwealth did not bar the current charges, his prior grant of immunity did. Specifically, D’Amato contends that immunized testimony was .used against him in the instant case. Again, we disagree. The tapes were made by Lt. Kalmar in an undercover capacity between 1984 and 1985. On these tapes D’Amato discusses his involvement in murder and racketeering. These tapes were made before the promise of immunity and were not contemplated by such a promise. The immunity agreement stated that in return for D’Amato’s testimony,

(a) Jake D’Amato agrees to be fiilly debriefed concerning his knowledge of, and participation in, the bribery of police officers and any other crimes about which he has knowledge. He further agrees to fiilly cooperate in the ongoing investigation of corruption in the Philadelphia Police Department. If Jake D’Amato provides truthful, complete and accurate testimony or information regarding bribery of police and police corruption, such testimony or information shall not be used against him in any other criminal proceeding.

Immunity Agreement, June 16, 1986, Record at 11. This agreement contemplated immunity as to any testimony or information gathered after the grant of immunity. This agreement did not contemplate immunity as to information that that was previously developed, such as the tapes. Consequently, we find that the Commonwealth’s use of the tapes did not breach the promise of “use immunity,” and thus, the current prosecution is not barred by any such immunity.

D’Amato also claims that the bills of information charging homicide and conspiracy to commit murder should have been quashed because the instant prosecution was in violation of state and federal double jeopardy protection and violates 18 Pa.C.S.A. § 110, Pennsylvania’s compulsory joinder rule. We disagree.

There is an exception to the double jeopardy rule which allows for successive prosecutions where additional facts necessary to sustain the subsequent charges had not been discovered at the time of the initial criminal proceedings. Grady v. Corbin, 495 U.S. 508, 515, 110 S.Ct. 2084, 2090 n. 7, 109 L.Ed.2d 548 (1990). In the instant case, when D’Amato was then granted immunity as to the bribery and police corruption investigation, police had not been able to ascertain the identity of the murder victim D’Amato referred to on the tape recordings. N.T., Motion to Quash, June 12, 1988 at 9, 19-20. Obviously, without this most basic information about the crime, the Commonwealth could not have initiated a homicide prosecution. Consequently, D’Amato is not entitled to relief on grounds of double jeopardy.

Nor is D’Amato entitled to relief under Pennsylvania’s compulsory joinder rule, 18 Pa.C.S.A. § 110. Joinder is mandated under this statute where the offenses both arose from the “same criminal episode” and “were known to the appropriate prosecuting officer.” Id. Neither of these statutory prerequisites is met in the instant case. D’Amato’s argument overlooks the fact that the prior bribery charges arose from an independent grand jury investigation and resulted in the filing of distinct criminal charges unrelated to the homicide. Moreover, while the murder occurred on October 11,1980, the bribery and other matters covered by the prior plea agreement concerned incidents occurring in 1981 and later. N.T., Motion to Quash, June 12, 1988 at 41-42. Thus, the murder and previous bribery charge did not arise from the “same criminal episode.” In addition, because the underlying facts of the murder were not sufficiently known to the police when the earlier bribery charges were lodged against D’Amato, the Commonwealth was not required to join the two sets of criminal charges in what would have been a premature homicide prosecution. See Commonwealth v. Kysor, 334 Pa.Super. 89, 93, 482 A.2d 1095, 1097 (1984) (prosecutor need not initiate murder charges merely to satisfy joinder rule where additional investigation is required on homicide aspect of case). Accordingly, D’Amato is not entitled to relief under 18 Pa.C.S.A § 110.

II.

D’Amato and Johnson contend that their convictions on the charges of conspiracy to commit murder and conspiracy to commit corrupt organizations were barred by the applicable statute of limitations.

In 1982, the legislature lengthened to five years the limitations period for conspiracy to commit corrupt organizations and in 1984, it eliminated the limitations period for criminal conspiracy to commit murder. See 42 Pa.C.S.A. §§ 5551 and 5552(b)(3). For purposes of the statute of limitations, the crime of conspiracy is a continuing offense. Commonwealth v. Volk, 298 Pa.Super. 294, 305, 444 A.2d 1182, 1187 (1982). Where the conspiracy is renewed by repetition, prosecution may be commenced within the limitations period as calculated from the last date of the offense. Id., 298 Pa.Super. at 305, 444 A.2d at 1187.

As to D’Amato we find that the prosecutions were not time barred. Evidence exists as to both conspiracies as late as April 1985, when D’Amato, in taped statements to Officer Kalmar, spoke of his continued conduct in operating numbers houses and of his “marriage” to Clarence Johnson. N.T., Volume II, May 11,1990 at 64-68. Consequently, we find that the ongoing nature of the cover-up and D’Amato’s ongoing role in the illegal lottery organization tolled the statute of limitations for the conspiracy charges in 1985. In 1985 the statute of limitations for conspiracy to commit corrupt organizations was five years, hence when D’Amato was charged in 1988, the prosecution was not time barred. In 1985 the statute of limitations for conspiracy to commit murder was zero, thus when D’Amato was charged in 1988, the prosecution was not time barred.

As to Johnson, we find that the instant prosecutions were not time barred. Evidence exists as to both conspiracies as late as April 1985. In the taped conversations between D’Amato and Lt. Kalmar, references were made to Johnson’s continuing role in the murder cover-up and in D’Amato’s lottery houses. N.T., Volume II, May 11, 1990 at 64-68. Consequently, we find that the statutes of limitations for both conspiracies were tolled in 1985 and thus, the prosecution of Johnson in 1988 was not time barred.

III.

Appellant Johnson, next claims that his trial counsel was ineffective for failing to preserve a sufficiency of the evidence claim. Specifically, he claims that the evidence was insufficient to convict him of any offense. This claim is meritless.

Initially, we note that counsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant. Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 975 (1987). To prevail on a claim of ineffectiveness, appellant must show that , his underlying contention possesses arguable merit, that the course chosen by counsel had no reasonable basis designed to serve his interests and that counsel’s conduct prejudiced him. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

The test for reviewing a sufficiency claim is well-settled:

[Wjhether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the juiy could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt____ This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt____

Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988) (citations omitted), cert. denied, 493 U.S. 1093, 110 S.Ct 1169, 107 L.Ed.2d 1072 (1990)

The evidence, viewed in the light most favorable to the Commonwealth, establishes that Johnson worked for D’Amato, provided protection for D’Amato’s lottery houses, arranged to have the victim killed because he was suspected of setting up a robbery at the Greenhouse, and gave guns, drugs and money to Leroy Clacks and Steven Williams to commit the murder. These facts were established through D’Amato’s taped conversations with Lt. Kalmar and through the trial testimony of Gene Swain, Terri Harris, Steven Moore and Jonathan White. N.T., Volume II, May 11, 1990 at 64-69; N.T., Volume III, May 14, 1990 at 15-18, 156-67, 175; N.T., Volume IV, May 15, 1990 at 83-84, 99-100. The evidence clearly was sufficient to find that appellant had conspired with D’Amato to kill Philson and that he was also involved in D’Amato’s illegal lottery business. Accordingly, Johnson’s sufficiency claim has no merit and trial counsel will not be found ineffective for failing to raise a meritless claim. Commonwealth v. Woods, 394 Pa.Super. 223, 232, 575 A.2d 601, 606 (1990).

rv.

Johnson and D’Amato next contend that statements of co-conspirators were improperly admitted through the testimony of Commonwealth witnesses Terri Harris, Lt. Kalmar and Steven Moore. This claim is meritless.

Under the co-conspirator exception to the hearsay rule, statements of a non-testifying co-conspirator made in the course of the conspiracy are admissible provided a conspiracy exists between the non-testifying co-conspirator and the defendant against whom the testimony is offered. Commonwealth v. Pinkins, 514 Pa. 418, 423-24, 525 A.2d 1189, 1191 (1987), cert. denied, 484 U.S. 867, 108 S.Ct. 192, 98 L.Ed.2d 144 (1987). Moreover, the exception applies even where no party has been formally charged with conspiracy or where a party has been acquitted of the conspiracy. Commonwealth v. Dreibelbis, 493 Pa. 466, 475, 426 A.2d 1111, 1115 (1981); Commonwealth v. Pinkins, supra, 514 Pa. at 424, 525 A.2d at 1191.

In the instant case, statements of Leroy Clacks, Jake D’Amato, and Steven Williams were introduced through the testimony of Terri Harris, Lt. Kalmar, and Steven Moore. Our review of the record reveals that all of the statements were made during the course of the conspiracy. Consequently, we find that the trial court did not err when it allowed the statements in under the co-conspirator’s exception to the hearsay rule.

V.

D’Amato and Johnson next contend that various testimony was improperly introduced by the Commonwealth and improperly excluded when offered by the defense. Specifically, they contend that the court erred by allowing testimony of Terri Harris, Lt. Kalmar and Officer Jones and by disallowing the defense from introducing “word on the street” evidence to support their theory that Leroy Clacks had acted alone. These claims are meritless.

D’Amato argues that the testimony of Terri Harris in which she made reference to Reggie Grant in connection with retaliation against Leroy Clacks for the Philson murder was inadmissible hearsay. However, the reference to statements about Grant and what he told Harris was elicited by the defense during cross-examination of Harris. N.T., Volume Ill, May 14, 1990 at 198-99. Consequently, the defense may not now object to this testimony.

D’Amato and Johnson further complain that Lt. Kalmar was improperly permitted to testify concerning other lottery owners and operatives identified in the course of the trial or mentioned by D’Amato in his taped conversations. Our review of the record reveals that this information was elicited by the defense. N.T., Volume III, May 14,1990 at 35-41. Consequently, the defense may not now object to the introduction of this testimony.

D’Amato and Johnson also contend that the rebuttal testimony of Officer Jones was improperly admitted. Officer Jones was called to rebut the extensive evidence of good reputation offered by Johnson. Indeed, Johnson not only placed in issue his character for being truthful, peaceful and law-abiding, but he specifically used his reputation witnesses to deny that he had any involvement in illegal lotteries. N.T., Volume VIII, May 21, 1990 at 10-11. D’Amato also offered a reputation witness who testified that he had never seen D’Amato with a gun and that D’Amato had no involvement with drugs. The witness also testified that D’Amato did not know Johnson. N.T., Volume VIII, May 21, 1990 at 16-21. Although evidence of the reputation of a defendant is not admissible in the Commonwealth’s case-in-chief, it can be introduced on rebuttal once the defendant places his reputation in issue and “opens the door” to such a rebuttal. Commonwealth v. Wojtczak, 342 Pa.Super. 306, 313, 492 A.2d 1133, 1136 (1985). Consequently, we find that the rebuttal testimony of Officer Jones was properly received.

Finally, D’Amato and Johnson contend that the trial court improperly disallowed the defense from introducing “word on the street” rumors to support their theory that Leroy Clacks had acted alone in the murder of John Philson. On its face, such testimony would constitute inadmissible hearsay. Appellants do not offer any legal theory in support of the admissibility of such testimony, and our research does not reveal any theory in support of its admissibility. Consequently, we do not find error in the trial court’s sustaining of the Commonwealth’s objections to such testimony.

VI.

D’Amato and Johnson next contend that they were denied their right to confront witnesses through appropriate cross-examination. Specifically, they offer several examples of allegedly improper restrictions placed on the defense examination of Terri Harris, Steven Moore, Gene Swain, Jonathan White, Lt. Kalmar and Jeffrey Philson, the victim’s brother. We disagree.

It is well-settled that the scope and manner of cross-examination are left to the discretion of the trial court judge and that his decisions will not be overturned absent an abuse of discretion. Commonwealth v. Tyler, 402 Pa.Super. 429, 436, 587 A.2d 326, 329 (1991).

D’Amato and Johnson also contend that they were denied adequate time to review the grand jury testimony of Terri Harris and that they were therefore unable to fully cross-examine her. Our review of the record reveals that following the direct testimony of Harris, the assistant district attorney provided defense counsel with the witness’ grand jury testimony before the defense proceeded to cross-examination. The trial judge then specifically asked defense counsel if they would like a recess, to which defense counsel agreed. It was only later, when the jury had returned to the courtroom, that defense counsel for the first time requested an overnight recess. N.T., Volume III, May 14, 1990 at 179. That request was denied and cross-examination was commenced. After extensive cross-examination and recross-examination the trial judge asked, “Anything else?” Id. at 179-272. Since neither counsel indicated a desire to pursue further questioning, the witness was excused. It was not until three days after the witness was dismissed that defense counsel told the court that she had, “a lot more areas for examination.” N.T., Volume VI, May 17,1990 at 7. The trial court asked defense counsel what she wished to ask the appellant, but defense counsel’s answers were vague. Consequently, the trial court denied the request, but made it clear that the witness would be made available for use in the defense case. In light of the above facts, we cannot say that the defense was given insufficient time to review the grand jury testimony of the witnesses or that they were improperly restricted in their cross-examination of the witness.

D’Amato and Johnson next contend that their efforts to cross-examine Steven Moore were improperly curtailed. Our review of the record reveals that defense counsel extensively cross-examined Moore on his criminal record, prison difficulties, his drug use and whether he had been promised any sentencing consideration or leniency in exchange for his testimony. N.T., Volume VI, May 17, 1990 at 14-23, 35-44, 48, 63-65, 83. Thus, any claim as to insufficient cross-examination is meritless.

Next in the defense litany of cross-examination complaints are the accusations of unfair limitations as to the examination of Jonathan White. White was called to refute the defense theory that D’Amato was just an old man who made things up. Since White was mentioned in the taped conversations with Lt. Kalmar he was called as a Commonwealth witness. White was cross-examined concerning his employment of gang members, his testimony at previous grand juries involving police corruption, his lottery operation, his numerous prior arrests, the fact that he had made payoffs to police officers and his appearance as a Commonwealth witness in other cases. N.T., Volume IV, May 15,1990 at 85-87, 89-90, 94-97, 102-104. We find that this vigorous and extensive cross-examination more than satisfied the mandate of the confrontation clause.

D’Amato and Johnson next contend that the lower court erred when it refused to let them review and use for purposes of cross-examination a police department Ethics Accountability Division file for Lt. Kalmar. This, too, is a meritless claim.

The file, which was subpoenaed and produced for review by the trial judge, contained no impeachment material. N.T., Volume II, May 11,1990 at 72-75. Rather, it showed that the officer had been cleared of any wrongdoing and that, in his twenty years on the police force, he had never been the subject of disciplinary action. Id. at 73. Hence, this case is readily distinguishable from Commonwealth v. Peetros, 517 Pa. 260, 535 A.2d 1026 (1987), upon which appellants rely. In Peetros an officer had been disciplined and demoted for bribery. The court held that the prior disciplinary action was admissible to impeach the officer. Id., 517 Pa. at 275, 535 A.2d at 1034. In the instant case, the file had no impeachment value, thus the trial court did not err in refusing the defense request to use the file for purposes of cross-examination.

Lastly, D’Amato and Johnson claim that they were improperly prevented from asking Jeffrey Philson about Terri Harris’ appearance on the day after the murder. This claim is meritless.

Our review the record reveals that this line of questioning was allowed. N.T., Volume I, May 10, 1990 at 193-194. Moreover, Philson was not only cross-examined about Harris’ appearance, but the defense was further permitted to read his prior statement to him, in front of the jury, in order to refresh his recollection. Id. at 194. Accordingly, appellants’ claim must be denied.

VII.

D’Amato and Johnson next contend that the trial court abused its discretion by permitting the introduction of demonstrative evidence, including photographs and a weapon, and in allowing the prosecutor to use and refer to a photograph display. In addition, they contend that evidence of threats against a Commonwealth witness was improperly allowed. We disagree.

D’Amato and Johnson contend that the trial court erred in allowing the introduction of black and white photographs of the victim. This claim is meritless.

The admission into evidence of photographs of the victim of a homicide or the location and scene of a crime lies within the sound discretion of the trial judge. Commonwealth v. Garcia, 505 Pa. 304, 313, 479 A.2d 473, 478 (1984). A photograph which is judged not inflammatory is admissible if it is relevant and can assist the jury in understanding the facts. Id., 505 Pa. at 313, 479 A.2d at 478 (1984).

In the instant case, the trial court reviewed all of the photographs and excluded three that had the potential to be prejudicial. The other black and white photos depicted the deceased in his car as he was found by the police. Accordingly, these photos were relevant and assisted the jury in understanding the facts as to how the victim was shot, where he was shot and how he was found. The photos also corroborated the testimony of Terri Harris regarding the shooting. Consequently, the trial court’s allowance of the photos was not an abuse of discretion.

D’Amato and Johnson next contend that a gun found in the home of co-defendant Williams’ mother was improperly admitted at trial. Whether this evidence could properly be admitted depends on its relevance.

A weapon may be admissible even where there is no proof that it is the actual murder weapon. Commonwealth v. Yount, 455 Pa. 303, 316, 314 A.2d 242, 249 (1974). All that is required before a weapon may be introduced into evidence is a sufficient foundation demonstrating circumstances justifying an inference of likelihood that the weapon was used in the course of the crime charged. Commonwealth v. Fromal, 392 Pa.Super. 100, 125, 572 A.2d 711, 724 (1990), appeal denied, 527 Pa. 629, 592 A.2d 1297. The Commonwealth is not compelled to establish that the particular weapon was the actual weapon used in the commission of the crime. Id., 392 Pa.Super. at 125, 572 A.2d at 724. Moreover, a lack of proof that a weapon is the actual murder weapon goes to to the weight of the evidence but not its admissibility. Commonwealth v. Coccioletti, 493 Pa. 103, 110, 425 A.2d 387, 390 (1981).

In the instant case the gun was recovered from the home of co-defendant Williams’ mother. This home is where Leroy Clacks and Steven Williams went after the meeting at which they were given the guns. N.T., Volume III, May 14, 1990 at 143. Thus, it can be inferred that Williams kept the gun at his mother’s home and that he had access to it there. The record reveals that the gun had been disassembled and the key elements were destroyed, thus making conclusive identification difficult, if not impossible. N.T., Volume V, May 16, 1990 at 61, 69. We find that although the Commonwealth could not conclusively prove that the gun was the actual murder weapon, the weapon was relevant and properly introduced into evidence.

D’Amato and Johnson contend that the prosecutor was improperly permitted to use a board with photographs, names and nicknames of various people mentioned in the testimony, who worked for the lottery organization. We find no merit to this contention.

The decision to admit a chart or diagram is left to the sound discretion of the trial court. Commonwealth v. Cullen, 340 Pa.Super. 233, 252, 489 A.2d 929, 938 (1985). A chart or diagram may be used at trial where it assists the jury in clarifying facts. Commonwealth v. Hess, 378 Pa.Super. 221, 238, 548 A.2d 582, 590 (1988). If the trial court could properly conclude that the exhibit would be helpful to the jury, the decision to admit the exhibit will likely be upheld on appeal. Id., 378 Pa.Super. at 238, 548 A.2d at 590.

Instantly, the chart was used to help the jury keep track of the many participants in the lottery organization. The chart was especially appropriate because some of the persons involved in the organization had the same or similar nicknames. Accordingly, the chart was a valuable jury aid which promoted clarity and rational fact-finding. Hence, its use was not error.

Lastly, D’Amato and Johnson contend that the trial court erred in permitting the introduction of evidence of threats to Steven Moore and a threatening card sent to his mother. We disagree.

On cross-examination the defense extensively questioned Steven Moore about a letter Moore had sent to an assistant district attorney and a supposed promise of concessions in exchange for Moore’s testimony. N.T., Volume VI, May 17, 1990 at 83-84. In response to this defense inquiry, the prosecutor properly elicited on redirect that the “concession” referred to by the defense involved Moore’s agreement to testify provided he was moved away from people who had been threatening him while in prison. Id. at 84-88. This testimony and a threatening card mailed to the witness’ mother were properly introduced as evidence of the witness’ state of mind, bias and reason for testifying. Commonwealth v. Dreibelbis, 493 Pa. 466, 478-479, 426 A.2d 1111, 1117-1118 (1981). Moreover, the evidence of threats, which was only elicited after defense counsel had opened the door, was then followed by a cautionary instruction to the jury in which they were specifically told that the threatening card could not be considered against the defendants. N.T., Volume VI, May 17, 1990 at 125. Under these circumstances, we do not find that the court abused its discretion by allowing the introduction of this evidence.

VIII.

D’Amato and Johnson next allege numerous instances of prosecutorial misconduct. Our review of the record reveals that the defense did not object to the alleged instances of prosecutorial misconduct. Consequently, we find these claims to be waived for failure to make a timely objection. Commonwealth v. Redel, 335 Pa.Super. 354, 363, 484 A.2d 171, 175 (1984).

IX.

D’Amato and Johnson also allege several instances of judicial misconduct. Our review of the record reveals that the court’s comments and interjections were a permissible exercise of judicial control to insure an orderly trial. Commonwealth v. McGuire, 339 Pa.Super. 320, 335-336, 488 A.2d 1144, 1152-1153 (1985). Consequently, appellants are not entitled to relief on this claim.

X.

Appellant Johnson claims error based on the lower court’s failure to grant him a severance. This claim is meritless.

The decision of whether to sever trials of co-defendants is within the sound discretion of the trial judge and will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Morales, 508 Pa. 51, 61, 494 A.2d 367, 372 (1985). It is only where, in the trial court’s opinion, resulting prejudice outweighs the needs of judicial economy that severance is necessary. Commonwealth v. Harvey, 407 Pa.Super. 545, 551, 595 A.2d 1280, 1284 (1991). The probability of antagonistic defenses is one of the factors that a court should consider in deciding whether to grant severance. Commonwealth v. Morales, supra, 508 Pa. at 62, 494 A.2d at 373. Moreover, joint trials are advisable where conspiracy is charged. Commonwealth v. Jackson, 451 Pa. 462, 464, 303 A.2d 924, 925 (1973).

Instantly, the evidence against D’Amato and Johnson was virtually identical, counsel pursued a common trial strategy, and both appellants were charged with conspiracy to commit murder and conspiracy to commit corrupt organizations. Consequently, the trial court did not abuse its discretion in denying the request for severance.

XI.

Appellant, Johnson, contends that the trial court erred when it denied his motion to suppress Terri Harris’ photographic identification of him and when it further denied his request for a cautionary instruction under Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954). Specifically, he argues that the out-of-court identification was unduly suggestive. Neither of these claims has any merit.

Where an out-of-court identification may be suggestive, a subsequent in-court identification of an accused as the perpetrator is admissible provided the in-court identification has a basis independent of the tainted out-of-court identification. Commonwealth v. Green, 321 Pa.Super. 246, 253, 467 A.2d 1346, 1349 (1983). The factors to be considered in determining whether the in-court identification testimony of the witness was based on their observations at the time of the crime and thus had a basis independent of the suggestive photographic array are: (1) the witness’ opportunity to observe the criminal act; (2) the existence of any discrepancy between the witness’ prior description of the criminal; (3) any identification of anyone other than the defendant; (4) any failure to identify the defendant; and (5) the lapse of time between the crime and the identification of the defendant. Commonwealth v. McIntosh, 328 Pa.Super. 255, 262, 476 A.2d 1316, 1319 (1984).

Instantly, we need not reach the issue of whether Terri Harris’ out-of-court identification was unduly suggestive, because we find that her subsequent in-court identification had an “independent basis.” Terri Harris knew Clarence Johnson and had seen him on several occasions. N.T., Volume III, May 14, 1990 at 125-129. In addition, her identification at trial was unequivocal. Id. at 136. Harris also testified that she knew Johnson because one of the other defendants (Williams) had specifically identified him to her before the murder. Id. at 140. In addition, Harris positively identified Johnson at the preliminary hearing and motion to suppress. In light of the above, we find that the witness did have an “independent basis” for her identification of Johnson and thus, the motion to suppress the in-court identification was properly denied.

Johnson also contends that he was entitled to a cautionary instruction under Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954) which states,

where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.

Id., 378 Pa. at 425-25, 106 A.2d at 826-27. Our review of the record reveals that Harris’ identification of Johnson was unequivocal, consistent and independently based. Hence, there was no basis for a cautionary instruction under Kloiber, supra.

XII.

D’Amato and Johnson contend that the trial court erred when it refused to give an accomplice charge as to the testimony of Terri Harris. This is a meritless contention.

An accomplice charge or instruction is warranted when the evidence produced at trial either requires or permits a reasonable inference that the witness participated in the crime charged. Commonwealth v. Franklin, 397 Pa.Super. 265, 282, 580 A.2d 25, 34 (1990). In essence, an accomplice charge is only warranted where the witness was an active partner with the intent to commit the crime. Commonwealth v. Phillips, 411 Pa.Super. 329, 340, 601 A.2d 816, 822 (1992).

Here, there was no evidence from which it could be reasonably inferred that Harris was an accomplice to the murder. She had no knowledge of the plot to kill Philson, she did not participate in the murder and afterwards she went into hiding solely because of threats made to her by Leroy Clacks. Harris’ mere presence at the scene of the crime does not render her an accomplice. Hence, there was no need for an accomplice charge and the lower court appropriately refused to give one.

XIII.

Finally, D’Amato and Johnson claim entitlement to relief based on “cumulative error.” As each of appellants’ claims has been found to be meritless, their claim of “cumulative error” is necessarily meritless as well. Accordingly, we affirm the judgment of sentence as to both appellants.

Judgments of sentence affirmed.

      . Many of the appellants’ claims overlap and so, where possible, we have attempted to organize and combine appellants’ claims according to the nature of the issue.

      . 18 Pa.C.S.A. § 2502.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 907.

      . 18 Pa.C.S.A. § 911.

      . A third co-defendant, Steven Williams, was tried with D'Amato and Johnson. However, he failed to file a timely appeal.

      . The PIC charges were not prossed as to all defendants.

      . The initial information regarding this case was obtained from an undercover investigation into alleged police corruption. Based on these allegations, police officer Andrew Kalmar infiltrated this illegal lotteiy organization operated by Joseph D’Amato and — using a recording device — taped several phone conversations with D’Amato. During these exchanges D’Amato spoke of having John Philson murdered and of other killings in retaliation for disruption of the illegal lotteiy operations.

      . Terri Harris testified that she was left in a car when Leroy Clacks and Steven Williams met with Clarence Johnson and Joseph D'Amato in a candy store. After the meeting, Clacks and Williams returned with two handguns, drugs and a large sum of money. This meeting took place about a month before the shooting death of John Philson.

      . Leroy Clacks was thereafter killed in December of 1980 in retaliation for John Philson’s death.

      . The Commonwealth’s request for "use immunity” was ultimately granted pursuant to 42 Pa.C.S.A. § 5947.

      . Both appellants concede that there is no statute of limitations for murder and that the murder charges were not time barred. See 42 Pa.C.S.A. § 5551.

      . Lt. Kalmar explained at trial that when D’Amato claimed to be “married” to Johnson, he was referring to the fact that Johnson had done a “job” (killed someone) for him, and once someone does a “job” for you, you must make payments or you will be exposed.

      . Appellants assert that many of the co-conspirator's statements were not made in “furtherance of the conspiracy.” However, our court has clearly stated that there is no such requirement for the admission of a co-conspirator’s statements, so long as the statements are made during the conspiracy. Commonwealth v. Basile, 312 Pa.Super. 206, 213 n. 10, 458 A.2d 587, 590 n. 10 (1983).

      . In addition, D’Amato and Johnson contend that they were improperly disallowed from impeaching Moore with non-crimen falsi offenses. Appellants cite to Commonwealth v. Eubanks, 511 Pa. 201, 512 A.2d 619 (1986), for the proposition that evidence of non-crimen falsi offenses is admissible and thus the trial court's restriction of cross-examination on this issue was improper. We disagree. In Eubanks, the Pennsylvania Supreme Court held that a rape complainant’s prior murder conviction was relevant and admissible on cross-examination because it supported the defendant’s version of the events leading up to the crime. Eubanks, however, did not hold that every irrelevant noncrimen falsi offense of a Commonwealth witness is admissible on cross-examination. We find that the impeachment of a witness with evidence of prior crimes is not governed by the fact-specific case of Eubanks, but rather by the Supreme Court’s subsequent decision in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987). Under Randall, evidence of prior crimes is admissible to impeach the credibility of a witness provided the offense involved dishonesty or false statement. Here, the trial judge properly applied the Randall crimen falsi rule which allowed extensive impeachment of Moore by the defense on issue of prior crimen falsi offenses. Consequently, appellants are not entitled to relief.

      . Harris testified that Leroy Clacks had beaten her because she had gone out with the victim. The defense sought to impeach her testimony by showing that Jeffrey Philson did not notice any bruises on Harris the day after the murder.

      . Indeed, trial counsel for both D’Amato and Johnson not only cooperated closely during trial, they filed a single joint brief on post-verdict motions.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Cape May Real Estate Company, Appellant, v. Henderson.

      Vendor and vendee — Covenants—Default of grantee — Contract.
    1. The clause of forfeiture or termination of the estate, upon the failure of a purchaser or lessee to pay purchase money or rent at the time by the contract required, is presumed to be for the benefit of the grantor or lessor, and as against him no default of the grantee or lessee can release the latter from his covenant to pay, unless the intent of both parties to that effect be made to appear by clear, precise and unequivocal language.
    2. Covenants that the contract shall become void, or that the estate shall cease and terminate, on failure by the grantee or lessee to pay at the time specified, are not self-operating and do not make the contract void except at the option of the grantor or less.or.
    3. Where a written contract for the purchase of land at a specified price payable in installments provides that in case of default in payment of any one or more of the installments “all rights of the” purchaser “and all his right, title, interest and claim in said described premises shall become null'and void . . . .” and all “moneys theretofore paid as well as the premises shall in such event belong to” the vendor “as liquidated damages for the time said property was under the control of” the purchaser, the "vendor has the right to elect either to assert and enforce the forfeiture, or to insist upon the performance of the contract.

      Contracts — Deeds—Foreign law — Evidence.

      4. The laws of a foreign country or another state of the union must be proved as facts, and, in the absence of allegation or evidence to the contrary, must be presumed to be same as that of the forum.
    Argued Oct. 19, 1909.
    Appeal, No. 128, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 5, Phila. Co., March T., 1909, No. 2,438, for defendant sustaining demurrer to statement in case of Cape May Real Estate Company v. J ames D. C. Henderson.
    Before Rice, P. J., Henderson, Morrison, Orlady, Beaver and Porter, JJ.
    Reversed.
    Assumpsit to recover installments of purchase money on a contract for the purchase of land.
    Demurrer to statement.
    The facts appear by the opinion of the Superior Court.

      Error assigned was in sustaining demurrer to statement.

      John G. Johnson, with him James Wilson Bayard, for appellant.
    — The contract being by its terms a contract for the sale of real estate in New Jersey, should be construed according to the law of the place of performance: Waverly Nat. Bank v. Hall, 150 Pa. 466; Krantz v. Kazenstein, 22 Pa. Superior Ct. 275; Burnett v. Penna. R. R. Co., 176 Pa. 45; Musser v. Stauffer, 192 Pa. 398; Garden City Sand Co. v. Miller, 157 Ill. 225 (41 N. E. Repr. 753); Latrobe v. Winans, 89 Md. 636 (43 Atl. Repr. 829); Brown v. American Finance Co., 31 Fed. Repr. 516; Cox v. United States, 31 U. S. 172; London Assurance Co. v. Companhia de Moagens do Barreiro, 167 U. S. 149 (17 Sup. Ct. Repr. 785).
    Under the law of New Jersey the vendor can under contracts such as that here involved enforce the payment by- vendee of overdue installments.
    Under the law of Pennsylvania the vendor can in such cases enforce the payment of overdue installments: Steele v. Maher, 38 Pa. Superior Ct. 183.

      C. H. Eimerman, for appellee.
    — If the parties inserted the liquidated damage clause in order to secure the performance of the contract, either may compel the other to specifically perform according to their agreement; but if they intended that the contract should oblige them to do one of two things, either to perform, or to pay the liquidated damages, then either party may pay and be free from the obligation to perform: Crane v. Peer, 43 N. J. Eq. 553 (4 Atl. Repr. 72); Brown v. Norcross, 59 N. J. Eq. 427, 431 (45 Atl. Repr. 605).
    March 3, 1910:
   Opinion by

Porter, J.,

The plaintiff filed a statement averring that it had, on March 11, 1907, entered into a written contract with the defendant under the terms of which it agreed to sell and convey and the defendant covenanted to buy and pay for a certain lot of ground at Cape May, New Jersey. A copy of the written agreement was attached to and made part of the statement, and under its provisions the plaintiff agreed to sell and convey the lot described and the defendant covenanted to purchase the same and pay therefor the sum of $1,600, of which sum $160 was to be paid in cash and the balance in instalments of $120, each and every three months following the date of the agreement. The contract contained the following provision upon the construction of which, under the pleadings, this case must turn, viz.: If default of payment is made of any one or more of said instalments of said principal sum, for a period of thirty days after the expiration of the time herein limited for the payment thereof, or said party of the second part shall fail to perform any other of the agreements on his part herein contained, all rights of the said party of the second part under this agreement, and all his right, title, interest and claim in said described premises shall become null and void; it being expressly stipulated and understood that no process or decree of law or equity shall be necessary to this effect, and all moneys theretofore paid as well as the premises shall in such event, belong to said party of the first part as liquidated damages for the time said property was under the control of the said party of the second part.” The statement averred that the defendant, the party of the second part to said agreement, had paid the cash instalment of $160 and the instalment of $120 which became due on June 11, 1907; but that he had wholly failed and refused to pay the seven quarterly instalments, of like amount, which subsequently became due according to the terms of the contract, and that this action was brought to recover $840, the amount of said instalments in default, with interest thereon at five percentum per annum. The defendant demurred to this statement, assigning as ground of demurrer, “that the contract upon which the suit is brought limits the amount of damages which the plaintiff may recover upon the defendant’s breach, to the amount of the instalments he may have paid prior to the breach, and the forfeiture of his interest in the premises;” and quoting the covenant above set forth. The court below sustained the demurrer and entered judgment for the defendant. The plaintiff appeals.

Did the provision of the contract hereinbefore quoted vest in the defendant the right to set up his own default, to work a forfeiture of his own contract? The earlier cases in Pennsylvania might have sustained the position that it did só; those cases were referred to and the history of the departure from the doctrine which they asserted reviewed by Mr. Justice Clark, in Ray v. Natural Gas Company, 138 Pa. 576. The general rule is that a party cannot take advantage of his own wrong or set up his own default to work a forfeiture of his own contract, unless the contract expressly gives him the right to do so. While parties may contract that on default the contract shall become void at the option of either party, yet such intent in the agreement must be so plain as to be unavoidable in order to sustain such a construction. The clause of forfeiture or termination of the estate, upon the failure of a purchaser or lessee to pay purchase money or rent at the time by the contract required, is presumed to be for the benefit of the grantor or lessor, and as against him no default of the grantee or lessee can release the latter from his covenant to pay, unless the intent of both parties to that effect be made to appear by clear, precise and unequivocal language. Covenants that the contract shall become void, or that the estate shall cease and terminate, on failure by the grantee or lessee to pay at the time specified, are not self-operating and do not make the contract void except at the option of the grantor or lessor, “and that that legal effect, no matter what form or cumulation of phrases be used, can only be changed by an express stipulation that the contract shall be voidable at the option of either party,” is well settled: Cochran v. Pew, 159 Pa. 184. These principles are firmly established by many decisions, a number of which were referred to in the opinion of President Judge Rice in Steele v. Maher, 38 Pa. Superior Ct. 183. The same rule applies to the construction of contracts for the sale of land, or an estate therein, as that applicable to leases. When the contract does not provide by clear, precise and unequivocal language, that the purchaser may terminate it by his own default, such effect will not be given it. The presumption is that the forfeiture clause is for the benefit of the grantor and enforcible at his election. Without such election and action the purchaser will not be released from his obligation to pay: Vito v. Birkel, 209 Pa. 206; Weaver v. Griffith, 210 Pa. 13.

The contract with which we are now dealing did not in express terms provide that it should be terminable at the will of either party, so that the defendant might even terminate it by his own default, nor does it contain anything from which such a covenant could be clearly implied. The clause of forfeiture does not even provide that, upon default by the purchaser the contract should become void or be rescinded. There is no covenant that the defendant should by his default be released from his obligation to pay, nor that the rights of the grantor under the contract should cease. The provision is that, upon default by the defendant, “ all rights of the said party of the second part under this agreement, and all his right, title, interest and claim in the said premises shall become null and void;" but there is nothing which clearly indicates that it was the intention of the parties that the defendant should be released from his liability upon the contract. This was manifestly a covenant inserted for the benefit of the grantor, to enable him to secure the performance of the contract. The effect was to give the plaintiff, upon default by the defendant, the right of election, either to assert and enforce the forfeiture or to insist upon performance of the contract. There can be no doubt that, in such a case the grantor may waive the forfeiture, either expressly or by estoppel arising from acts tending to mislead the grantee: Vito v. Birkel, 209 Pa. 206. The plaintiff having elected to bring this action in affirmance of the contract, the clause of forfeiture can have no effect in determining the rights of the parties. The plaintiff is, under the law of Pennsylvania, entitled to recover.

This contract, it would seem, was to be performed in the state of New Jersey, and counsel in their briefs have referred to decisions of the courts of that state. The case as presented, however, does not permit us to inquire what the law of that state may be. The case must stand upon the pleadings, the statement of the plaintiff and the demurrer of the defendant. The statement contains no allegation as to the law of New Jersey and the demurrer is, of course, barren of any suggestion upon that subject. ' The laws of a foreign country or another state of the union must be proved as facts, and, in the absence of allegation or evidence to the contrary, must be presumed to be the same as that of the forum: Musser v. Stauffer, 178 Pa. 99 and 192 Pa. 398.

The judgment is reversed and judgment is now entered in favor of the plaintiff and against the defendant for $840, with interest thereon at the rate of five percentum per annum from March 11,1908, with costs.


text:
    Cape May Real Estate Company, Appellant, v. Bennett.
    March 3, 1910:
   Opinion by

Porter, J.,

The parties to this appeal have filed a stipulation setting forth that this record presents only the same question involved in the case of the Cape May Peal Estate Company v. Henderson, ante, p. 1, in which an opinion has this day been filed, and agreeing that judgment shall be entered in this case in accordance with the disposition of that appeal.

The judgment is reversed and judgment is now entered in favor of the plaintiff and against the defendants for $1,260, with interest at the rate of five per centum per annum from the day in plaintiff’s statement set forth, with costs.


text:
    Cape May Real Estate Company, Appellant, v. Worthington.
    March 3, 1910:
   Opinion by

Porter, J.,

The parties to this appeal have stipulated in writing that it presented only the same question involved in the case of the Cape May Real Estate Company v. Henderson, ante, p. 1, and that judgment should be entered in accordance with the disposition of that case.

The judgment is reversed and judgment is now entered in favor of the plaintiff and against the defendant for $1,080 with interest thereon at the rate of five per centum per annum from the day designated by the statement of plaintiff, with costs.


author: Morrison, J.,

text:
    Hood v. Lower Merion Building & Loan Association, Appellant.

      Affidavit of defense — Practice, C. P. — Set-off—Rent—•Married woman.

    In an action of assumpsit an affidavit of defense is sufficient which avers, in order to establish a set-off, that the plaintiff was a married woman, that her husband had absconded and was living in another state, that for a period of months stated, plaintiff had used and occupied a house which the defendant had bought in foreclosure proceedings against plaintiff’s husband; that the rental claimed was a reasonable one according to rents paid for similar adjoining houses, that plaintiff had paid a portion of said rentals, but that the remainder was still due, and that defendant was entitled to set it off as against plaintiff’s claim.

      Argued Oct. 19, 1909.
    Appeal, No. 82, Oct. T., 1909, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T., 1908, No. 2,104, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Hannah E. Hood v. Lower Merion Building & Loan Association.
    Before Rice, P. J., Henderson, Morrison, Orlady, Beaver and Porter, JJ.
    Reversed.
    Assumpsit to recover the withdrawal value of two shares of the defendant’s stock.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      William P. Landis and Chas. L. Lockwood, for appellant,
    cited: Peter Adams Paper Co. v. Cassard, 206 Pa. 179.

      William MacLean, Jr., for appellee,
    cited: Bardsley’s App., 20 W. N. C. 90; Marseilles v. Kerr, 6 Whart. 500; Brolasky v. Ferguson, 48 Pa. 434; Marlatt v. Marlatt, 4 Pa. 91.
    March 3, 1910:
   Opinion by

Morrison, J.,

In this action of assumpsit a rule was granted for judgment for want of a sufficient affidavit of defense, and on March 24, 1909, the rule was made absolute and judgment entered in favor of plaintiff for $463.50. Hence, this appeal.

For present purposes it will be assumed that the declaration shows a prima facie right in the plaintiff to recover $339.36 and interest, being the withdrawal value of two shares of the capital joint stock of the defendant corporation. This declaration called for an affidavit of defense which was filed on January 8, 1909, and on February 17, 1909, with leave of court, a supplemental affidavit of defense was filed. These affidavits taken together attempted to set up two separate defenses, but on account of lack of precision in their averments as to the first defense that the stock did not belong to the plaintiff but to her husband, Walter W. Hood, that defense is abandoned in the argument of this appeal. The question then arises as to the sufficiency of the second defense, to wit:

“The defendant is also entitled to claim, and does claim a set-off against the plaintiff in the amount of five hundred and seventy-six dollars ($576)’, being a debt due and owing by the plaintiff to the defendant for the use and occupation of the dwelling house No. 6107 Market street, Philadelphia, from July 1, 1904, to December 1, 1907. During that time the plaintiff occupied the said premises, which belonged to the defendant, and which were worth at a reasonable valuation, according to the rents paid for similar adjoining houses, eighteen dollars ($18) per month. She occupied the said property for forty-one months and thereby became liable for the sum of seven hundred and thirty-eight dollars ($738), on account of which she made a number of payments, amounting altogether to one hundred and sixty-two dollars ($162), leaving a balance due and owing by the plaintiff to the defendant for the use and occupation of said property, five hundred and seventy-six dollars ($576).
“All of which the defendant corporation will be able to prove ■ in this case.”

The following is quoted from the supplemental affidavit:— “The said Walter W. Hood, who was conveyancer and solicitor of the defendant company, absconded from Pennsylvania in October, 1902, and abandoned his wife, who is the plaintiff in this case. The said Hood is still absent from Pennsylvania, and ever since his departure his wife has remained in Pennsylvania.

“In April, 1904, the defendant association, in court of Common Pleas No. 5 of Philadelphia County, of March Term, 1904, No. 2800, commenced a suit to foreclose a mortgage held by the association, and given by said Walter W. Hood, upon the premises No. 6107 Market street, Philadelphia, mentioned in the affidavit of defense. While the proceedings were pending the plaintiff went into possession of the property, and continued to use and occupy the same during the period stated in the affidavit of defense.

“On April 11th, 1904, after a Sheriff’s sale of the property under the said foreclosure proceeding, the Sheriff of Philadelphia conveyed the property to the defendant association by deed recorded in Sheriff’s Deed Book, No. 214, page 309.

During all this time, to the best of the knowledge and belief of this deponent, the said Walter W. Hood was absent from Pennsylvania, and the plaintiff, in using and occupying the said property, did so in her own individual right. All of which is true, and the defendant will be able to prove the same upon the trial of the case.”

That the facts stated in the above affidavits of defense are sufficient to carry the defendant’s alleged set-off to a jury hardly seems to require árgument. The affidavit of defense avers that the dwelling house, No. 6107 Market street, was owned by the defendant and that the plaintiff occupied it from July 1,1904, to December 1, 1907, and that a reasonable rental for it during that term was $18.00 per month. The affidavit then liquidates the amount of rent due as $738 and avers that the plaintiff recognized the defendant’s right to rent by making a number of payments thereon, amounting to $162, leaving a balance due and owing by the plaintiff of $576. It further appears from the supplemental affidavit, with reasonable certainty, that the said premises, No. 6107, belonged to the plaintiff’s husband, Walter W. Hood; that he mortgaged the same to the defendant corporation and absconded from Pennsylvania in October, 1902, and abandoned his wife, who is the plaintiff in this case. The affidavit further avers a foreclosure of said mortgage and a sheriff’s deed on April 11, 1904, conveying the mortgaged premises to the defendant corporation. This averment shows title in the defendant during all the time for which rent is claimed from the plaintiff. The affidavit further avers that in using and occupying the said property plaintiff did so in her own individual right. In our opinion, these averments are sufficient to carry the case to a jury. It is argued for the appellee that there is nothing to show that the plaintiff did not make the payments of rent as agent for her husband, and with money furnished by him. But it is averred that she was abandoned by her husband, that he absconded from the state and remained away and that she occupied the premises in her own right and made the several payments herself. It would hardly have been possible for the defendant to have ascertained and averred where the plaintiff procured the money with which she paid a portion of the rent.. The person making the affidavit could hardly swear that the money was not furnished by the husband. But under the facts averred it is sufficiently stated that the wife made the payments, and this is a strong averment that she was occupying the premises under the defendant corporation.

In Peter Adams Paper Co. v. Cassard, 206 Pa. 179, it is held as stated in the syllabus: “In Pennsylvania every restriction imposed by the common law upon the capacity of a married woman to contract has been removed except in two cases; she cannot become accommodation endorser, maker or guarantor or surety for another; she cannot without her husband joins convey or mortgage her real estate.”

The assignments of error are sustained and the judgment is reversed with a procedendo.


text:
    DeKyne v. Smith, Appellant.

      Negligence — Reckless driving of wagon — Allegata—Probata,
    1. When a person is crossing a public street at the usual place for crossing, and he is knocked down and injured by the reckless and rapid driving of a team attached to a wagon, and he alleges in his statement of claim that reckless and rapid driving ran the wagon over, into and upon him, he sustains the cause of action alleged by showing that without fault of his he was negligently and carelessly knocked down and injured by any part of the wagon, and it makes no difference whether the wagon was literally driven over him, or whether it skidded or slewed and its rear end struck him.
    2. In such a case where the plaintiff substantially proves the averments of his statement of claim, although such averments are flatly contradicted by the defendant’s witnesses, the case is for the jury.
    Argued Oct. 22, 1909.
    Appeal, No. 96, Oct. T., 1909, by defendant, from judgment of 0. P. No. 2, Phila. Co., June T., 1907, No. 2,075, on verdict for plaintiff in case of John J. DeKyne v. George Smith.
    March 3, 1910:
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Barratt, J.
    The facts are stated in the opinion of the Superior Court.
    Defendant presented the following points:
    1. If the plaintiff, having seen the defendant’s wagon approaching the crossing while still five yards distant from him, saw, or by the exercise of reasonable care could have seen the track or tracks in the bed of the street and had knowledge that “ when the forepart of the wagon struck the railroad tracks and the horses turned, naturally anybody knows that a wagon would skid around,” he, the plaintiff, is chargeable with such knowledge, and if, by stepping backwards a reasonable distance under the circumstances, he could have put himself in a position of safety and avoided contact with the wagon of the defendant and failed to do so, the verdict should be in favor of the defendant. Answer: Refused. [1] '
    4. That under all the evidence in this case the verdict should be for the defendant. Answer: Refused. [2]
    Verdict and judgment for plaintiff for $350. Defendant appealed.

      Errors assigned were (1, 2) above instructions, quoting them.

      Peter M. Macharen, with him John E. McCully, for appellant.

      Hugh Roberts, with him Charles H. Roberts, for appellee.
   Opinion by

Morrison, J.,

In this action of trespass, based on the alleged negligence of the defendant, there was a motion for a binding instruction in favor of the defendant, and thereafter motion for judgment n. o. v. in favor of the defendant. The learned court refused binding instructions in favor of the defendant and refused judgment non obstante veredicto, and entered judgment on the verdict in favor of the plaintiff for $350.

We find in the record no exception to the general charge and no exception to the refusal of judgment non obstante veredicto, but the defendant did except to and assign error to the refusal of the court to affirm his first and fourth points.

The statement of the questions involved, made by appellant’s counsel, is as follows': 1. “Did the learned trial judge exercise a sound discretion in declining defendant’s fourth point of charge, that under all of the evidence in this case, the verdict should be for the defendant?” 2. “Variance between the declaration and proofs. Statement avers the reckless driving of defendant’s wagon 'over, into and upon’ him, as sole cause of action. Can plaintiff be permitted to recover on the ground that the injury was caused by the skidding of defendant’s wagon, there being nothing in the evidence to show that such skidding was in any manner unusual?”

It seems to us that this case was clearly for the jury. We will first consider the question raised by the first paragraph of the statement of .questions involved (second assignment of error). The declaration averred -(he negligent and reckless driving of defendant’s wagon over, into and upon plaintiff. From the plaintiff’s own testimony the jury could well find that the defendant’s servant was driving recklessly and at great speed across one of the public streets in the city of Philadelphia at and near a crossing for foot passengers, and that without negligence on the part of the plaintiff, he was knocked down and seriously injured as a result of the skidding or slipping of defendant’s wagon while it was rapidly moving diagonally across the street. With the evidence of the plaintiff before the jury, we are unable to understand how the court could have' given a binding instruction in favor of the defendant. It is true the testimony of the defendant’s servant, who was driving the team, is in flat contradiction of plaintiff’s testimony as to the rapid and reckless driving. If the jury had believed the testimony of this servant they could hardly have found the defendant guilty of negligence. But a policeman was called as a witness and he, in a measure, contradicts both the plaintiff and the defendant’s driver. The policeman says the team was being driven on a trot, not walking as the driver testified, and not going at a very- rapid gait as the plaintiff testified. Now all of this testimony presented a case for the jury and it was submitted to them in a charge which is fair and impartial and entirely adequate. We are all of the opinion that the court committed no error in refusing the defendant’s fourth point, “that under all the evidence in this case the verdict should be for the defendant.”

The other question involved, as stated by appellant’s counsel, is an endeavor to reverse the court below on a distinction that is too fine to stand the test of a fair and practical application of the testimony to the cause of action set forth in the declaration. The contention of the learned counsel is that because the declaration charged that the defendant did “negligently and carelessly, without any warning or signal to the plaintiff, at a dangerous and reckless rate of speed, run, propel and drive one of said large and heavy wagons or trucks, drawn by two horses, over, into and upon the plaintiff, so that plaintiff was struck with great force and violence and thrown to the pavement of said street and under the wheels of said wagon or truck, and under the hoofs of the said horses,” etc., therefore, there could be no recovery because there is a material variance between the allegata and probata. The counsel then complains because the trial judge left it to the jury to find whether or not the defendant was liable. This, he says, the jury could only do by finding that the skidding of the rear end of defendant’s wagon alone caused the contact between it and the plaintiff, and there was no evidence to justify such a finding, the plaintiff himself testifying that he could not say what part of the wagon struck him. We understand the contention to be that if the jury could find that the defendant’s team was driven so rapidly diagonally across the street that the rear end of the wagon skidded or slid and struck the plaintiff and knocked him down, that there could bo no recovery because the declaration charged negligent and rapid driving over, into and upon the plaintiff. The counsel attaches much importance to the plaintiff’s testimony that he could not say what part of the wagon struck him. But the evidence is quite sufficient to warrant the jury in finding that the plaintiff was struck and injured by some part of the wagon as a result of the rapid and diagonal driving testified to by plaintiff. We are all of the opinion that the plaintiff’s testimony, supplemented by that of the policeman, is sufficient to sustain the verdict on the theory that the case was submitted by the court, and we are also of the opinion that this cause of action is sufficiently indicated in the declaration. When a person is crossing a public street, at the usual place for crossing, and he is knocked down and injured by the reckless and rapid driving of a team attached to a wagon, and he alleges in his declaration that reckless and rapid driving ran the wagon over, into and upon him, we think he sustains the cause of action alleged in the declaration by showing that without fault of his he was negligently and carelessly knocked down and injured by any part of the wagon,, and we do not think it makes any difference whether the wagon was literally driven over him or whether it skidded or slewed and its rear end struck him. In our opinion, the plaintiff’s declaration concisely stated his cause of action, and there was evidence sustaining that cause of action, provided it was believed by the jury.

We do not understand the appellant’s counsel to contend that the judgment should be reversed on their first assignment of error. We reach this conclusion from the statement of questions involved and from the printed argument. It may be that the learned court might have affirmed the defendant’s first point (first assignment). But when we read the charge, which was not excepted to, we find that the case was so adequately and fairly submitted to the jury, and the ground covered by this assignment so carefully considered in the charge, that we cannot see how any harm could have resulted to the defendant from the refusal of defendant’s first point. To have affirmed that point would not have placed the alleged negligence of the plaintiff before the jury any clearer than was done by the general charge. > We are all of the opinion that the record is free from reversible error.

The assignments of error are all overruled and the judgment is affirmed.


author: Orlady, J.,

text:
    MacDonald, Appellant, v. Davis.
    March 3, 1910:

      Master and servant — Contract of employment — Suit for salary — Evidence.

    In an action for salary it appeared that the plaintiff had been employed by a contract in writing by a firm who were the general agents of an insurance company. The defendants were the successors of these agents. There was evidence that the plaintiff acted as cashier and auditor for defendants, but there was no evidence that the terms of the contract between them were other than that it was a contract of hire at the will of the new employers. The defendants did not discharge him, but he was dismissed by the president of the insurance company. Held, that a nonsuit was properly entered.
    Submitted Oct. 22, 1909.
    Appeal, No. 204, Oct. T., 1909, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1907, No. 4,371, refusing to take off nonsuit in case of William MacDonald v. Henry E. Davis and Benjamin K. Focht, trading as Davis & Focht.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Af- ' firmed.
    Assumpsit for salary. Before Magill, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was refusal to take off nonsuit.

      Franklin S. Edmonds and Wm. Clarice Mason, for appellant.

      John R. Read, H. B. Gill and Louis B. Runic, for appellees.
   Opinion by

Orlady, J.,

The plaintiff’s claim against the defendant is founded upon a contract in writing, dated September 26, 1906, between Benjamin, Zimmerman & Gerdwood, trading as general agents of the Pennsylvania Mutual Life Insurance Company of Philadelphia, in which the plaintiff herein engaged to enter the employment of the parties named, commencing October 1, 1906, and to devote his whole time, energy and attention to their business interests, as cashier and auditor. The said parties agreed to pay to McDonald, $125 on or before the fifth day of each and every month as compensation during the balance of the year 1906. After January 1, 1907, the compensation was to be $2,000 a year, payable in monthly installments on or before the fifth of each month.

In order to fix the liability of the defendants, the plaintiff alleged in his pleadings that the defendants in this action succeeded to the interests of Benjamin, Zimmerman & Gerdwood, by a contract which was not offered in evidence, and the terms of which are unknown, except that it was to take effect about January 1, 1907. On the trial the plaintiff testified that prior to January 1, 1907, he had had conversations with both of the members of this defendant firm, in which he explained to them the possibilities of the business, drew up a statement of the assets and liabilities from the books of the old firm, the extent of the business, the outstanding contracts for which the outgoing firm was liable, the unpaid bills that were due for office partitions and furnishings, his salary under his contract with them and the general office expenses. His duties were that of cashier and auditor, but his relation to the new firm is not made clear in the testimony; whether he was the individual employee of the general agents,. or whether in addition to being in their employment he was under the direction and control of the parent company, is left in doubt.

While his salary for November and December, at the rate of. $125 per month, is stated to have been paid by Davis & Focht, there is coupled with it a statement that it was paid through John J. Coyle, who was the executive representative of the life insurance company. The employment was continued until March 22, 1907, when plaintiff was dismissed from service by a writing signed by the president of the company, John J. Coyle. This letter was not offered in evidence, and the exact relation of the president of the company to the general agents and to this plaintiff as their cashier and auditor is also left in doubt. The plaintiff testified that it was necessary to consult Mr. Coyle as to the conduct of the business, and that he was in frequent consultation with Mr. Coyle, and acted under his direction, or as he states it, “we had to take certain risks, or something of that kind, about which he was asked as to the conduct of the business. They were given to me as the representative of Davis & Focht. Sometimes I consulted my direct principals, Davis & Focht, and at other times consulted Mr. Coyle.”

He testified further that when the business was turned over to Davis & Focht, there was an oral contract of employment, that he was to continue his relation to the general business upon the same fixed terms as were set out in the contract between him and Benjamin, Zimmerman & Gerdwood. The difficulty lies in the fact that there was no testimony to connect Davis & Focht with any promise to pay to the plaintiff any wages for any specific time. While the contract with Benjamin, Zimmerman & Gerdwood is clear and specific, the testimony of the plaintiff does not fix any liability on Davis & Focht to carry out its provisions, further than it was a contract of hire at the will of the new employer. Without further evidence on this branch of his case, he is not entitled to recover from these defendants.

He was dismissed from employment by Mr. Coyle, the president of the insurance company, and he testified that he was not discharged by the defendants, that all they stated was that they were sorry he had been'discharged and were powerless to change the situation. He accepted his dismissal from the president of the insurance company, and surrendered all books, papers, cash, etc., pursuant thereto. The court below was fully justified in directing a nonsuit to be entered.

The judgment is affirmed.


author: Head, J.,

text:
    Augusto v. Romano, Appellant.
    March 3, 1910:

      Sale — Contract—Warranty—Fraud—Affidavit of defense.

    1. In an action on a promissory note where it appears that the note was given to secure part of the purchase money of the business, an affidavit of defense is sufficient which sets forth an express warranty made by the plaintiff as to the value of the business, that such warranty was false and fraudulently made, setting forth facts to sustain the charge of fraud, that there never was any such business as warranted, and that the difference between the value of the business warranted and such as it really was, was equal to or greater than the amount of the note.
    2. In such a case a partial payment made some months after the purchase of the business, is not made so late as to deprive the defendant of the right to set up the fraud and the breach of warranty as a defense in an action on the note. The defendant was not obliged to at once hire experts and go to work on the books of the plaintiff to verify their accuracy. He might properly rely upon his warranty and devote his energy to preserving or increasing the business he thought he had bought.
    Argued Oct. 22, 1909.
    Appeal, No. 218, Oct. T., 1909, by defendant, from order of 0. P. No. 4, March T., 1909, No. 2,100, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Augusto v. Cesare Romano.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head and Porter, JJ. '
    Reversed.
    Assumpsit on a promissory note.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.

      J. Lawrence Wetherill, with him Joseph Hill Brinton, for appellant.

      Benjamin Alexander, for appellee.
   Opinion by

Head, J.,

Assuming, as we must, that what is plainly averred in the affidavit of defense is true, it would appear that the plaintiff undertook to perpetrate a fraud of the most unblushing character. A fraud, too, so deliberately planned that the books used in his business had been systematically falsified for a period of months before the sale, in order to exhibit a business that would meet the demands of the- warranty given' by the plaintiff. As long as he wears the livery in which the affidavit clothes him, the plaintiff cannot with much force demand that a court should be astute to assist him in gathering the remaining fruits of the fraud.

The situation disclosed by the affidavit in this case is almost identical with that in Goodwin v. Schott, 159 Pa. 552, in which the Supreme Court said: “The affidavit of defense is quite sufficient to entitle the defendant to a trial by jury.”

In this case the defendant clearly sets forth an express warranty as to the extent and value of the business theretofore conducted by the plaintiff, on the strength of which the purchase was made; that in point of fact there never was or had been any business such as was warranted; that the plaintiff well knew this, but deliberately undertook to deceive the defendant and make him believe that he was buying something far different from that which he actually got. He clearly sets up the inferior value of the thing he got as compared with the warranty, and avers that such difference in value would be equal to or greater than the amount of the note sued on which was given to secure part of the purchase money. Such an affidavit, in our judgment, discloses a good defense and entitles the defendant to his trial by jury.

The argument of the learned counsel for the appellee that the defendant should have rescinded the sale and returned the goods before bringing his action, and that he delayed too long in bringing suit, is fully answered in Miller Lock Company v. Diehl Manufacturing Company, 37 Pa. Superior Ct. 585. The several affidavits filed are somewhat confusing on the question when the payment of $100 was actually made. Even if it were made some months after the purchase of the store, we do not think the court cóuld say as a matter of law that the defendant had thereby lost his right to make a defense otherwise meritorious. The situation was a peculiar one. The defendant was not obliged to at once hire experts and go to work on the books of the plaintiff to verify their accuracy. He might properly rely upon his warranty and devote his energies to preserving or increasing the business he thought he had bought.

The judgment is reversed, the rule is discharged, and a procedendo awarded. The costs of this appeal to be paid by the appellee.


author: Henderson, J.,

text:
    Hoover v. Potter, Appellant.

      Husband and wife — Estate by entireties.

    1. A deed dated March 30, 1907, conveying land to a husband and wife, naming them as such, “as tenants in common,” vests in the husband and wife an estate by entireties, and not an estate as joint tenants or tenants in common.
    2. There is nothing in the married women acts of 1848, 1887 and 1893, which changes the common-law rule that a devise or grant of real estate to a husband and wife gives a title by entireties.
    Argued Oct. 19, 1909.
    Appeal, No. 214, Oct. T., 1909, by defendant, from judgment of C. P. Franklin Co., Sept. T., 1909, No. 241, for plaintiff on case stated in suit of James B. Hoover, Executor of the Last Will and Testament of Annie E. Beecher, deceased, v. Jeremiah Potter.
    Before Rice, P. J., Henderson, Morrison, Orlady, Beaver and Porter, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate. Before Gillan, P. J.
    From the record it appeared that on March 30, 1907, the land in controversy was conveyed by deed to John H. Beecher and Annie E. Beecher, his wife, “as tenants in common.” Annie E. Beecher survived her husband, John H. Beecher, and by her will directed that the land in. question should be sold, and the proceeds thereof distributed in the manner stated in the will. The executor of Mrs. Beecher contracted to sell the land to defendant, Jeremiah Potter, who refused to take the title. The court in an opinion by Gillan, P. J., decided that the deed vested in the husband and wife an estate by entireties, and that upon the death of her husband, Mrs. Beecher took an estate in fee simple. He accordingly entered judgment for plaintiff for $775.
    March 3, 1910:

      Error assigned was in entering judgment for plaintiff on the case stated.

      J. A. Strite, for appellant,
    cited: Alles v. Lyon, 216 Pa. 604; Parry’s Est., 188 Pa. 33; Hetzel v. Lincoln, 216 Pa. 60

      Watson R. Davison, with him D. Watson Rowe, for appellee,
    cited: McCurdy v. Canning, 64 Pa. 39; Stuckey v. Keefe, 26 Pa. 397; Bramberry’s Est., 156 Pa. 628; Young’s Est., 166 Pa. 645; Parry’s Est., 188 Pa. 33; Merritt v. Whitlock, 200 Pa. 50.
   Opinion by

Henderson, J.,

It is an established doctrine of the common law that a devise or grant of real estate to a husband and wife gives a title by entireties and not as joint tenants or tenants in common. Lord Kenyon said in Doe v. Parratt, 5 T. R. 652, It has been settled for ages that where a devise is to the husband and wife they take by entireties and not by moieties.” Each has the entire use of the whole. Neither can convey so as to sever the tenancy, as the whole of the estate belongs to each. This is also the rule in Pennsylvania as shown in Stuckey v. Keefe’s Executors, 26 Pa. 397, where the subject is elaborately discussed and in which it was held that the rule was not one for merely ascertaining the meaning of words but a declaration of law founded on the rights and incapacities of the matrimonial union and that the intention of the parties to the conveyance is immaterial; and to like effect are all our authorities. After the passage of the act of 1848 relating to the rights of married women it was contended that this statute changed the rule of common law, but in Diver v. Diver, 56 Pa. 106, this proposition was denied. The object of the statute was said to be to protect the wife’s property by moving it from under the dominion of the husband; not to destroy the oneness of husband and wife, the single purpose of the statute being to secure to the wife property which she owned at the time of her marriage or which accrued to her afterwards; all of which had reference to the enjoyment by the wife of that which was hers; not the force and effect of the instrument by which she acquired it. In other words, the act did not operate on the nature of the estate. So also in Gillan’s Executors v. Dixon, 65 Pa. 395, where it was expressly said that the act of 1848 did not change this principle of the common law, nor was it intended to destroy the legal unity of persons which characterizes the relation of husband and wife. After the passage of the act of June 3, 1887, the question again arose, and it was determined that the effect of that act was not to change the nature of the wife’s estate or to destroy the legal unity of husband and wife, but to protect the property of the wife from the husband’s control, and that the same reasoning which induced the conclusion in Diver v. Diver, supra, required the court to hold that the act of 1887 had no effect on the character of the estate acquired: Bramberry’s Appeal, 156 Pa. 628. The act of 1887 was repealed by the act of June 8, 1893; but the latter act does not materially change the provision of the act of 1887 with reference to the capacity of a married woman to acquire real estate. Young’s Estate, 166 Pa. 645, was decided a year and a half after the passage of the act of 1893, and in that case the court said: “ The general rule that a conveyance to husband and wife as such whether they are described in the deed as tenants in common or as joint tenants vests in them an estate as tenants in entireties is well settled.” It is true the mortgage which was the subject of consideration in that case was executed in 1879, but the language of the court indicates quite clearly that the law had not been changed by subsequent legislation. In like manner it was determined in Parry’s Estate, 188 Pa. 33, that a joint tenancy existed as to two letters of credit in favor of the husband and wife, notwithstanding the acts of 1848 and 1887, which were said to have no application to the case. It seems probable that the reference of the court in this case was intended to be to the act of 1893 rather than that of 1887 for the letters of credit were obtained in 1895, and the only act which could have been considered relevant was that of 1893, which had repealed the act of 1887. In McCurdy & Stevenson v. Canning, 64 Pa. 39, the conveyance was to the grantees as tenants in common, yet it was held in the court below in an opinion which was adopted by the Supreme Court that this did not affect the question and that the estate was one by entireties. And to the same effect is the opinion of Judge Williams in Young’s Estate, 166 Pa. 645. In Merritt v. Whitlock, 200 Pa. 50, a doubt was suggested by Justice Mitchell whether the statutes in relation to married women had not removed the reason for the rule, and he considered it an open question whether the husband and wife might not take as well as hold in common if that were the actual intention. The question was not decided, however, and the case cannot, therefore, be considered as an authority overruling the decisions referred to. It should be noted, however, that the deed in that case contained the following clause: “And it is hereby understood, defined and mentioned and described that the aforesaid described piece of land, Sarah Whitlock, wife of Nathan Whit-lock, has absolutely to and for her own right in fee simple the undivided one-half part or portion.” It might be argued with good reason that under the peculiar language of this deed there was an express grant of an undivided one-half to the wife. The restrictions of the act of 1893, on married women with reference to actions against their husbands, are inconsistent with the theory of a tenancy in common in the case of a conveyance to husband and wife and a material incident to such an estate is withheld; to wit: the right of the wife to divide her estate or to protect it from her husband by adverse legal proceedings, where he has not deserted her or refused to support her. It seems consistent, therefore, with the objects of these statutes and prior adjudications on the same subject to hold that the conveyance in this case created an estáte by entireties.

It follows that the judgment is affirmed.