text:
    470 A.2d 1376
    COMMONWEALTH of Pennsylvania v. Allen Wayne WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued July 12, 1983.
    Filed Jan. 6, 1984.
    Petition for Allowance of Appeal Denied May 2, 1984.

      David G. Petonic, Greensburg, for appellant.
    Judith Karns Ciszek, Assistant District Attorney, Greens-burg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER, CAVANAUGH, WICKERSHAM, ROWLEY, WIEAND and POPOVICH, JJ.
   CERCONE, President Judge:

This is a direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Westmoreland County on December 29, 1980 following appellant’s conviction in a jury trial of Criminal Attempt to Falsely Imprison.

The evidence adduced by the Commonwealth at trial established that on October 23, 1979 at approximately 7:45 a.m., Vonda Ortuglio drove her automobile into the parking lot of her place of employment, the Shop N Save supermarket located on Lowry Street in Jeannette. She locked her car and began walking toward the entrance of the store when she was accosted by a black male who, upon alighting from a passing vehicle, seized her shoulder and attempted to pull her into his automobile. Mrs. Ortuglio struggled with her assailant for a few minutes and then, having finally freed herself from his grasp, ran into the supermarket to safety. She then placed a telephone call to the State Police and reported the incident.

Investigating troopers arrived on the scene a short while later to interview the victim. Mrs. Ortuglio was asked to review eight photographs carried at the time by one of the troopers. She was unable to identify any of the men contained in those pictures as her attacker. Later the same day, however, Mrs. Ortuglio was shown a second array consisting of thirteen photographs. In this array appeared a photograph of appellant in which he wore a sign around his neck that bore the inscription “Police Dept. Jeannette, Pa..” Appellant’s photograph was selected by Mrs. Ortuglio as depicting the man who set upon her in the Shop N Save parking lot that morning. Appellant was subsequently arrested and charged by complaint with criminal attempt.

On November 20, 1979, the District Attorney of Westmoreland County filed an information against appellant with the clerk of courts. The District Attorney’s signature was not manually subscribed on the information. Instead, the information was “signed” with a rubber stamp facsimile signature which was then initialed by the First Assistant District Attorney of Westmoreland County, Henry A. Martin. Appellant filed an omnibus pretrial motion requesting (1) that the information be quashed (a) for jurisdictional deficiencies deriving from the failure of the District Attorney to sign the information in the manner required by Pa.R.Crim.P. 225(b) and 42 Pa.C.S.A. § 8931; and (b) because it fails to allege an essential element of the crime charged, viz., that the actions of the perpetrator were unlawful and/or committed against the will of the victim; and (2) that any identification of appellant by the victim, based upon a photograph of appellant taken by the Jeannette police in connection with their investigation of a crime for which appellant was eventually discharged, together with the photograph itself, be suppressed by reason of the photograph’s suggestiveness. The lower court denied these motions but nevertheless ordered the Commonwealth to conceal the police department caption on appellant’s photograph when it displayed the array to the jury during trial.

Appellant proceeded to a trial by jury on April 11, 1980 and on April 15, 1980 he was convicted of Criminal Attempt to Falsely Imprison. Post-verdict motions were filed, argued and denied by opinion and order dated December 3, 1980. On December 29, 1980, appellant appeared for sentencing and was ordered to undergo confinement in a state correctional facility for a period of not less than eleven and one half months nor more than twenty-three months. This direct appeal, which presents several issues for our disposition, then followed.

The question of whether a criminal information, which bears a rubber stamp facsimile signature of a district attorney together with the manually-inscribed initials of an assistant district attorney, has been properly “signed” within the meaning of Pa.R.Crim.P. 225(b) and the Judicial Code was definitely resolved by our Supreme Court in Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981). Therein, the Court ruled that

... the approval and initialing of the information by an assistant district attorney, along with the stamped signature of the district attorney, complies with our Rules [and] the Judicial Code.. , Id., 492 Pa. at 470, 424 A.2d at 1287.

However, the Contakos opinion makes clear that where a rubber stamp is employed to represent a district attorney’s signature and an assistant district attorney initials the information near the stamped signature, the signature will be valid only if the requisite designation of authority for the assistant district attorney to so act has been filed with the clerk of courts pursuant to the mandate of 42 Pa.C.S.A. § 8931(i). In the instant case, the Commonwealth apparently concedes that the proper designation of authority had not been filed at the time the information was stamped and initialed by the assistant district attorney. Appellant argues that because the designation of authority had not been filed prior to the filing of the information, but was instead filed only after the pretrial hearing which was conducted pursuant to appellant’s motion to quash the information, the information should now be quashed for alleged jurisdictional deficiencies and he discharged. We disagree.

The signature requirement of the Judicial Code, supra, is designed to assure the authenticity of an information and to guarantee that the district attorney has inquired fully into all facts and circumstances attendant to a particular case and has made a reasoned evaluation of the propriety of initiating criminal proceedings against a defendant. Commonwealth v. Levenson, supra. See also Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983). We fail to perceive how these goals would be furthered in the instant case by quashing the information and discharging appellant simply because the Commonwealth filed the required designation of authority in a tardy manner. The designation of authority was filed with the clerk of courts prior to the rendering of a decision by the lower court on appellant’s motion to quash the information and well in advance of the commencement of trial. Consequently, we reject appellant’s argument that the filing of the designation of authority in this fashion denied the public “an official showing of the proper exercise of discretion by the District Attorney on whether or not there was sufficient evidence of the commission of a crime for which to prosecute the Defendant.”

Moreover, we regard as equally untenable appellant’s assertion that the actions of the district attorney in the case at bar unlawfully erodes the accountability of prosecuting officials to the public by cloaking the identity of those persons responsible for the institution of criminal actions. Under the holding of Commonwealth v. Emanuel, supra, it is now clear that so long as the name of the government official authorizing the prosecution appears on the face of the information, whether in the form of a manually-subscribed signature or rubber stamp facsimile signature, there arises a rebuttable presumption that the information is valid. Commonwealth v. Emanuel, 501 Pa. at 587, 462 A.2d at 656. The instantly-challenged information which bears the rubber stamp signature of the District Attorney of Westmoreland County as well as the initials of an assistant district attorney, thus complies fully with the signature requirements set forth in Rule 225(b) and Commonwealth v. Emanuel.

Appellant also assigns as trial error the failure of the lower court, to adequately explain to the jury that the maxim “falsus in uno, falsus in omnibus” may be applied only to “material” misstatements of fact made by a witness. Although it is true that the court in fact omitted the word “material” in presenting the maxim to the jury, we find no cause for reversal. First, as the quoted portion of the transcript makes clear, the trial judge admonished the jury that it, as the ultimate judge of credibility, was free to accept or reject all or any portion of a witness’s testimony after assessing such testimony in light of the various factors cited previously by the court in its general charge on credibility which immediately preceded the instantly-challenged reference to the maxim. Moreover, the court emphasized that the maxim was only one of the many considerations that should enter into the jury’s decision as to whether it should attach any credence to a certain portion of a witness’s testimony. Taking the charge as a whole as we must, it is clear that if in fact the court’s omission is this regard had any tendency to prejudice appellant’s case, such prejudice was obviated by the remainder of the court’s charge which was more than adequate on the question of the credibility of witnesses. Mount v. Bulifant, 438 Pa. 265, 265 A.2d 627 (1970).

Appellant’s contention that the Commonwealth failed to plead and prove an essential element of the offense of false imprisonment, viz., that the victim was “unlawfully” restrained, is specious. First, an information will be regarded as sufficient in law so long as it serves to notify the accused of the charges filed against him or her. The information in the case at bar provided as follows:

The District Attorney of Westmoreland County, by this Information charges that on and about Tuesday, October 23, 1979, in the said county, Allen Wayne Williams did in the parking lot of Shop N Save Supermarket, located on Lowry Avenue, City of Jeannette, Westmoreland County, Pennsylvania, with intent to commit the crime of false imprisonment did commit an act, to-wit: Vonda Ortuglio, 707 Baughman Avenue, Jeannette, Pa. 15644, he, ALLEN WAYNE WILLIAMS constituting a substantial risk toward the commission of a crime, to-wit: On the above said date, and at the above said location, he, ALLEN WAYNE WILLIAMS grabbed the said Vonda Ortuglio by the sweater and did attempt to pull her into a vehicle so as to interfere substantially with her liberty, the said Vonda Ortuglio did manage to pull herself away and ran into the store, all of which is against the peace and dignity and the General Assembly of the Commonwealth of Pennsylvania.
Signed,
Albert M. Nichols
Attorney for the Commonwealth.
Violation of Section 901 of the Pennsylvania Crimes Code.

Clearly, then, the information afforded appellant with adequate notice of the charges brought against him. Moreover, the testimony of the victim at trial leaves no doubt that appellant’s actions occurred against the will of Mrs. Ortuglio and without her consent.

Finally, appellant argues that the suppression court erred in failing to suppress a photograph of appellant as being unduly suggestive, and that the Commonwealth failed to meet its burden of proving that the identification procedure employed by the State Police was not unduly suggestive.

As previously stated, appellant challenged the legitimacy of the identification procedure in his amended omnibus pre-trial motion. Prior to the hearing conducted by the lower court pursuant to appellant’s motion to suppress, the parties stipulated to the following facts: the offense occurred in Jeannette, Pennsylvania; after the incident occurred, the State Police presented for the victim’s review an array of photographs which contained appellant’s picture; the picture was taken after a prior arrest of appellant for his alleged commission of a crime for which he was ultimately discharged; the photograph depicted appellant wearing a sign around his neck on which were inscribed the words “Police Dept., Jeannette, Pa.”; the victim identified this picture as that of her assailant; and, on the basis of such identification, a complaint and warrant for appellant’s arrest were issued. The Commonwealth introduced no testimony whatsoever at the suppression hearing and entered into evidence only the display of photographs and the above-recited stipulation of facts.

It is certain that a pre-trial identification, where obtained by a procedure “so unnecessarily suggestive and conducive to irreparable mistaken identification” that it denies the accused due process of law, will be held inadmissable at trial. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Both the Rules of Criminal Procedure and established case law impose upon the Commonwealth the duty of proving, in the face of a defendant’s challenge to the propriety of an identification, that such identification was not accomplished through an unduly suggestive procedure. The accused is entitled to a pre-trial evidentiary hearing to determine the admissibility of the identification. Commonwealth v. Lee, supra; Commonwealth v. Jenkins, 232 Pa.Superior Ct. 523, 335 A.2d 463 (1974); and Commonwealth v. McMillion, 215 Pa.Superior Ct. 306, 265 A.2d 375 (1969). At the suppression hearing, if the court finds that the pre-trial identification procedure was tainted with suggestiveness, the Commonwealth is then required to prove by clear and convincing evidence that a witness’s in-court identification of the accused, has an independent origin sufficiently distinguishable from the illegal pre-trial identification so as to be purged of the primary taint. Commonwealth v. Glover, 488 Pa. 459, 412 A.2d 855 (1980); Commonwealth v. Bogan, 482 Pa. 151, 393 A.2d 424 (1978); Commonwealth v. Thomas, 278 Pa.Superior Ct. 39, 419 A.2d 1344 (1980).

The Rules of Criminal Procedure require the suppression court, at the conclusion of the hearing, to

“enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought.” Pa.R. Crim.P. 323(0.

In reviewing an order denying a defendant’s motion to suppress, our function is to determine

“whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.”

Commonwealth v. W.P., 302 Pa.Superior Ct. 66, 69, 448 A.2d 97, 98-98 (1982), quoting Commonwealth v. Hunt, 280 Pa.Superior Ct. 205, 207-08, 421 A.2d 684-85 (1980).

The suppression court in the case at bar did not comply with the dictates of Pa.R.Crim.P. 323(i) in that it did not enter on the record at the conclusion of the hearing a statement of findings of fact and conclusions of law with regard to the alleged suggestiveness of the photographs from which the victim made a pre-trial identification of appellant. Moreover, we are puzzled by the suppression court’s ruling on appellant’s motion insofar as the remedy fashioned by the court was not responsive to the concerns voiced by defense counsel during the hearing that the photograph created a substantial possibility of misidentification. The transcript of the hearing reveals that the court itself regarded the photograph as prejudicial and suggestive. However, instead of requiring the Commonwealth to establish by clear and convincing evidence that the victim’s in-court identification of appellant enjoyed an independent basis that cleansed it of the suggestiveness engendered by the pre-trial photographic identification, see Commonwealth v. Glover, supra, the suppression court merely ordered that the police department designation on the photograph be excised for trial. The Commonwealth introduced no testimony whatsoever at the hearing; the only evidence offered to the court was the photo array and the above stipulated facts which themselves offer little insight into the pre-trial identification procedure.

Despite the errors committed by the lower court in its disposition of the suppression issues raised by appellant, we perceive no reason to remand the case for another suppression hearing since the trial transcript affords us with abundant evidence from which to conclude that the victim’s identification of appellant as her assailant enjoyed an independent basis sufficiently distinct from the suggestive pretrial photographic identification so as to be purged of the original taint.

Testimony elicited from Vonda Ortuglio at trial established that, despite the relative brevity of the incident which gave rise to the instant prosecution, there was “absolutely no question” that appellant was the person who attacked her in the Shop N Save supermarket parking lot because she had endured unusual and unsettling encounters with appellant on two separate occasions earlier in that same month. Mrs. Ortuglio explained that the first such incident occurred at approximately 6:15 a.m. on the first Saturday of October, 1979. Having just seen her husband off to work, Mrs. Ortuglio heard a rattling noise emanating from her front porch. Investigating further, she observed someone attempting to open her front door. Thinking that her husband had returned home, Mrs. Ortuglio prepared to open the front door and in doing so viewed appellant through the glass window of the door jiggling the doorknob from the outside. Mrs. Ortuglio testified: “[tjhere was just the glass between us ... I saw his face.” She noted further that appellant was wearing a sweatshirt and dark-colored trousers and was carrying a flashlight. Frightened, Mrs. Ortuglio crawled across the livingroom floor to a telephone and alerted the police.

Yonda Ortuglio testified that her second encounter with appellant occurred approximately one week later while she was working at the meat counter at the supermarket. She stated that she was sweeping the floor behind the counter when she glanced upwards and observed appellant standing before her at the counter. Mrs. Ortuglio stated that she became frightened insofar as she “immediately recognized him” from the incident that took place at her home on the previous weekend morning. Mrs. Ortuglio, upon being asked by appellant if she recognized him, dropped her broom and retreated to a back room to telephone the police.

The above-discussed testimony affords an ample basis for holding that the victim’s identification of appellant as her assailant was grounded upon an entirely independent set of circumstances. First, it is clear from the record that Vonda Ortuglio was unwavering in asserting that appellant was the person who attempted to pull her into an automobile in the parking lot of the Shop N Save Supermarket on October 23, 1979. Second, the basis for her unflinching identification is easily perceived: she had the opportunity to view his face and features on two prior occasions and, during the second incident which transpired at the supermarket meat counter, actually heard him speak to her in a manner which served to reinforce her conviction that appellant was the same individual who attempted to enter her house on a previous Saturday morning. Third, Mrs. Ortuglio supplied investigating state troopers with a description of appellant’s height, weight and physical characteristics which corresponded in substantial part with appellant’s actual description. Fourth, Mrs. Ortuglio never failed to identify appellant after the attack except when asked to review a photographic array which did not contain appellant’s picture. Finally, relatively little time elapsed between her confrontation with appellant at the scene of the crime and her selection of appellant’s picture from the second photo array.

Given the totality of the circumstances surrounding the instantly-challenged identification, we believe that its reliability is impregnable and, consequently, reject appellant’s assertion to the contrary.

Order Affirmed.

      . 18 Pa.C.S.A. § 901.

      . Appellant's photograph was not among those comprising this array.

      . Appellant phrases his arguments thusly:
      (1) . The court lacked jurisdiction over the defendant because the District Attorney did not sign the information and the person using the facsimile stamp was not authorized in writing to so act as required by 42 Pa.C.S.A. 8931 and hence there was no showing of a review of the magistrate’s transcript before initiating the criminal proceedings.
      (2) . The court erred in its instruction to the jury on the maxim "false in one, false in all things".
      (3) . The suppression court erred in failing to suppress a picture of defendant shown to the victim before his arrest and any identification based upon it as being so unduly suggestive, as to give rise to an irreparable likelihood of misidentification and the trial court erred in permitting its introduction into evidence, thus depriving defendant of due process of law.
      (4) . The Commonwealth has failed to plead and prove an essential element of the attempt to false imprisonment, i.e. that it was done “unlawfully"?
      (5) . The trial court erred in permitting the Commonwealth to introduce into evidence incidents which occurred before the offense charged.

      . Pa.R.Crim.P. 225(b) states in pertinent part that
      "[T]he information shall be signed by the attorney for the Commonwealth...” (Emphasis supplied).

      . The Judicial Code, 42 Pa.C.S.A. § 8931(e), provides as follows:
      "Disposition of Cases. — The district attorney shall sign all informations. The information shall be filed in the form prescribed by general rules.” (Emphasis supplied).

      . See also Commonwealth v. Dupree, 290 Pa.Superior Ct. 202, 434 A.2d 201 (1980) and Commonwealth v. Levenson, 282 Pa.Super. 406, 422 A.2d 1355 (1980); Commonwealth v. Devault, 309 Pa.Superior Ct. 497, 455 A.2d 720 (1983); Commonwealth v. Donley, 309 Pa.Superior Ct. 280, 455 A.2d 159 (1983); Commonwealth v. Spencer, 308 Pa.Superior Ct. 483, 454 A.2d 638 (1982).

      . 42 Pa.C.S.A. § 893 l(i) provides as follows:
      Definition. — As used in this section "district attorney” includes a special attorney appointed by the Attorney General in the manner provided by statute, an acting district attorney and any assistant district attorney whose authority to act for the district attorney under this section is evidenced by a written designation executed by the district attorney or acting district attorney and filed with the clerk of courts, (emphasis added).

      . The written designation of authority was, however, filed by the Commonwealth with the clerk of courts prior to the lower court’s ruling on appellant's motion to quash.

      . We note, parenthetically, that appellant’s argument in this respect invokes the policy underlying Pa.R.Crim.P. 225(b) as set forth in the Supreme Court’s recent opinion in Commonwealth v. Emanuel, supra. Speaking for a majority of the Court, Justice Flaherty elaborated in Emanuel on the distinct goals sought to be achieved by Pa.R.Crim.P. 225(b) and Section 8931 of the Judicial Code, 42 Pa.C.S.A. § 8931. Justice Flaherty instructs that Rule 225 seeks only to assure that the identity of the prosecuting authority is perceptible and in no way implicates § 8931 of the Code which is concerned solely with the duty of the district attorney to sufficiently investigate the facts of a given case prior to instituting criminal proceedings against the accused.

      . The Court ruled in Emanuel that a rubber stamp facsimile signature, even in the absence of accompanying initials of an assistant district attorney, complies with the signature requirement of Rule 225(b).

      . With respect to this matter, the lower court charged the jury as follows:
      “You have the sole responsibility of deciding whether the testimony of each witness is truthful and accurate, is to be believed or disbelieved in whole or in part. Among the factors that you may and should consider in deciding whether a witness’s testimony is worthy of belief are the following: You should consider the witness’s manner of testifying, how the witness looked, conducted him or herself and spoke while on the witness stand. In other words, was the witness candid? Evasive? How did that witness appear? You should consider the witness’s intelligence and ability to observe and be informed about the matters to which he or she testified. You should consider that witness’s ability to remember the events that were testified to. You should consider whether the witness was positive and certain or hesitant and doubtful about the matters to which he or she testified. You should consider whether the witness testified frankly and fairly or whether the witness showed favoritism or was biased in any way. You should consider whether the witness has anything to gain or lose from the outcome of to gain or lose by your verdict.
      It’s a matter of judgment or a matter of knowledge of human beings that sometimes a person will put their best foot forward, will color their testimony in their favor. I'm not saying that anybody has done this in this case, but I want you to be aware of the possibility of it in evaluating witness’s testimony. You should consider whether and to what extent the witness’s testimony is supported by or contradicted by other evidence in this case which you believe. And there is a saying in the law, falsus in uno, falsus in omnibus, which means false in one, false in all things. That merely means that under the law if you believe, are convinced that a witness has told an untruth, you may

        disregard, that witness’s entire testimony or you may accept that part of it that you believe to be true and reject that part of it that you believe to be false. After scrutinizing all the testimony and considering all the factors that I’ve outlined to you you may choose to be guided by in your deliberations and any other factors, you will give the testimony of each witness such credibility, if any, as you think it deserves.” (Emphasis supplied).

      . In previous cases, we have questioned the utility of the maxim. In Commonwealth v. Levenson, 282 Pa.Superior Ct. 406, 422 A.2d 1355 (1981), we quoted Professor Wigmore in expressing our concern as to the maxim’s true value to jurors:
      "It may be said, once for all, that the maxim is in itself worthless; —first, in point of validity, because in one form it merely contains in loose fashion a kernel of truth which no one needs to be told, and in the others it is absolutely false as a maxim of life; and secondly, in point of utility, because it merely tells the jury what they may do in any event, not what they must do or must not do, and therefore it is a superfluous form of words. It is also in practice pernicious, first, because there is frequently a misunderstanding of its proper force, and secondly, because it has become in the hands of many counsel a mere instrument for obtaining new trials upon points wholly unimportant in themselves.” (Emphasis supplied).

        Id., 282 Pa.Superior Ct. at 415, 422 A.2d at 1360, quoting Wigmore, Evidence, § 1009 at 982 (Chadbourn rev. 1970) (footnotes omitted).

      . See, e.g., Commonwealth v. Allen, 291 Pa.Superior Ct. 366, 435 A.2d 1270 (1981); Commonwealth v. Rolinski, 267 Pa.Superior Ct. 199, 406 A.2d 763 (1979).

      . Appellant further maintains that the court erred in allowing the picture to be introduced into evidence at trial with the offensive police department designations excised from the photograph. Although appellant raises this issue in the latter half of item number three in the "Statement of Questions Involved” section of his appellate brief, he does not actually address the matter in the "Argument” section of the brief. Pa.R.A.P. 2119(a) requires that the "Argument” separately address each claim presented upon pain of waiver. Insofar as appellant has failed to afford us the benefit of the facts and applicable law surrounding this issue, we decline the request to resolve it on appeal. See Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944 (1981); and Commonwealth v. Colbert, 476 Pa. 531, 383 A.2d 490 (1978) (opinion in support of affirmance).

      . Pa.R.Crim.P. 323(h) states that
      The Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the Defendant’s rights. The Defendant may testify at such hearing, and, if he does so, does not thereby waive his right to remain silent during trial.

      . See, e.g., Commonwealth v. Brown, 302 Pa.Superior Ct. 80, 448 A.2d 535 (1982); and Commonwealth v. Lee, 262 Pa.Superior Ct. 280, 396 A.2d 755 (1978).

      . In Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453, our Supreme Court, quoting from United States v. Higgins, 458 F.2d 461 (3d Cir.1972), adopted the following criteria for determining the reliability of an in-court identification:
      "(1) the manner in which the pretrial identification was conducted; (2) the witness’ prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant’s actual description and any description given by the witness before the photographic identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification.”

        Id., 482 Pa. at 546, 394 A.2d at 453, quoting 458 F.2d at 465. See also Commonwealth v. Smith, 290 Pa.Superior Ct. 33, 434 A.2d 115 (1981); Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976); Commonwealth v. Zabala, 303 Pa.Superior Ct. 72, 449 A.2d 583 (1982).

      . Appellant argues that the victim's identification of appellant should have been suppressed owing to the failure of the victim to testify at the suppression hearing. Appellant cites as support for his position our decision in Commonwealth v. Lee, supra, wherein we adopted a per se rule requiring the suppression of identification evidence in cases in which the identifying witness fails to testify at the suppression hearing. We reject this contention, however, since it is clear that the per se rule enunciated in Lee was expressly abrogated by our recent decision in Commonwealth v. Thompkins, 311 Pa.Superior Ct. 357, 457 A.2d 925 (1983) (reargument denied March 29, 1983) (petition for allocatur denied May 16, 1983). In Thompkins, we ruled that "[e]ven though the observations of an identifying witness are important considerations at a suppression hearing, this testimony is not constitutionally mandated.” Id., 311 Pa.Superior Ct. at 362, 457 A.2d 927. With regard to the ability of the Commonwealth to meet its burden of proof at the suppression hearing without producing the identifying witness, the following factors, relating to the reliability of a pre-trial identification, are operative:
      ... the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. ■

        Id., 311 Pa.Superior Ct. at 363, 457 A.2d at 928, quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977). See discussion infra.

      . Our courts have consistently adhered to the principal that an appellate court may consider all testimony on record in determining whether certain evidence was admissable at trial, and not solely the testimony elicited during the suppression hearing. See Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311 (1983); Commonwealth v. Carr, 292 Pa.Superior Ct. 137, 436 A.2d 1189 (1981); Commonwealth v. Kaschik, 235 Pa.Superior Ct. 388, 344 A.2d 519 (1975).

      . In Commonwealth v. Johnson, 261 Pa.Superior Ct. 566, 436 A.2d 645 (1981), we ruled that a sufficiently independent basis for an in-court identification may be found where a witness had seen the accused on occasions prior to the crime. See also Commonwealth v. McKelvie, 471 Pa. 541, 370 A.2d 1155 (1977).


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    470 A.2d 1385
    Elaine E. HUBER, Appellant v. Robert R. HUBER.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1983.
    Filed Jan. 13, 1984.

      Robert K. Kistler, State College, for appellant.
    Charles J. Weyandt, State College, for appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   ROWLEY, Judge:

This is an appeal, by Elaine E. Huber, appellant, from an order of the trial court sitting en banc overruling her exceptions to the trial judge’s order that dismissed her complaint in assumpsit. On appeal, she claims that the trial court erred in ruling that a post-nuptial contract executed by her and her former husband, Robert R. Huber, appellee, was against public policy and unenforceable as a matter of law. We reverse.

Elaine and Robert were married on August 16, 1952. During their marriage, they had four children. On October 25, 1976, they entered into a post-nuptial agreement that included, among other things, provisions for: the separation of Elaine and Robert; custody of the children; support for Elaine; support for the children; the disposition of personal property; and, life insurance. Although the record does not disclose it, counsel agreed that subsequent to the execution of the agreement, Robert obtained a divorce. On May 21, 1980, Elaine filed a complaint alleging that Robert had failed to make the payments, as set forth in their agreement, for the support of one of the children and for the college education of another child. She did not seek to enforce any of the other provisions of the contract in her assumpsit action.

Robert filed preliminary objections to the complaint in the nature of a demurrer and a motion to dismiss the complaint. The objections did not raise the issue of the agreement’s enforceability or legality. The trial court, sua sponte, “raised the issue of the validity” of the agreement. The court chose not to rule on Robert’s preliminary objections and instead decided that the contract was unenforceable because it contained a provision that it was contingent on Robert “obtaining an uncontested divorce.” (emphasis supplied.) As a result, Elaine’s complaint was dismissed on January 20, 1981, without a hearing and without an answer having been filed by Robert. On January 26, 1981, Elaine filed exceptions to the order of the trial court. The exceptions were heard by a court en banc which filed an opinion and order denying the exceptions on January 11, 1982. Elaine filed a notice of appeal from the order denying her exceptions on February 9, 1982. Upon review of the record, we find that the trial court erred in holding that the post-nuptial agreement was unenforceable as a matter of law and, therefore, we reverse.

Initially, we note that the appeal in this case, was timely filed. Although neither party raised the issue of the appealability of the en banc court’s order, it is encumbent upon this Court to determine whether the appeal is properly before us. Rohr v. Keystone Insurance Co., 294 Pa.Super. 179, 439 A.2d 809 (1982).

Under the circumstances of this case, the trial court’s order of January 20, 1981, dismissing appellant’s complaint, was not a final appealable order. In dismissing appellant’s complaint, the trial court did not rule on the preliminary objections raised by the appellee. On the contrary, the trial judge raised the issue of the illegality of the contract on his own, and in doing so, he decided the case on the basis of a potential, affirmative defense that should have been pleaded in an Answer containing New Matter. See Pa.R.C.P. 1030. In this situation, the trial court’s order was, in reality, an adjudication on the merits of a potential defense available to appellee. The appellant, therefore, was warranted in filing exceptions to that adjudication. Consequently, the order of the court en banc denying appellant’s exceptions was the appealable order in this case and the instant appeal was timely filed within thirty days of the date of that order.

In this case, appellant brought suit to recover child support payments due from appellee as set forth in Paragraph 3 of the post-nuptial agreement. Paragraph 3 provides, in pertinent part:

Husband acknowledges his duty to contribute support and maintenance to the minor children of the parties. Husband hereby agrees to pay to wife for support of the minor children the total sum of THREE HUNDRED ($300.00) DOLLARS per month, the first payment to be made upon the signing of this Agreement, and payments thereafter to be made on the first day of each month commencing November 1, 1976. At such time as husband obtains full employment, husband agrees to pay for the support, maintenance, education, and recreation of the children an amount equal to fifteen (15%) percent per child of his net salary from base wages; provided, however, that such support shall not be less than THREE HUNDRED ($300.00) DOLLARS per child per month nor more than THREE HUNDRED SEVENTY-FIVE ($375.00) DOLLARS per child per month____ The parties further agree that each shall contribute to the higher education of their children if the children are able and willing to undertake advanced education at trade or technical schools or in full-time undergraduate college degree programs after their graduation from high school and until their twenty second birthday ... (emphasis added).

The agreement also contained provisions for support of the wife, and the disposition of personal property. The trial court determined that the agreement was unenforceable as being against public policy, because it contained the following provision in Paragraph 13:

This Agreement is contingent upon husband obtaining an uncontested divorce on ground of indignities from wife on or before January 31, 1977. This agreement shall not be construed as evidence of grounds of defense or an action for divorce, (emphasis added)

On the record in this case, we find that the trial court erred in holding that the contingency of an “uncontested” divorce set forth in Paragraph 13, rendered the entire post-marital contract, including the support provisions for the children, void and unenforceable as a matter of law.

A close reading of the marital agreement reveals a number of patent ambiguities that are inexplicable absent extrinsic evidence. The contract was executed by the parties on October 25, 1976, and the first child support payment under Paragraph 3 was due upon execution of the agreement, with subsequent payments due on the first of each month, commencing November 1, 1976. Consequently, the husband’s support obligations for the children were due immediately upon the signing of the agreement. On the other hand, Paragraph 13 specified that the agreement was contingent upon the grant of an uncontested divorce to the husband on the ground of indignities on or before January 31, 1977. Since the husband’s support obligations under Paragraph 3 became operative three months before the final date listed for entry of a divorce, we do not perceive that the terms of the support provision for the children were contingent upon the entry of a divorce decree. There is no mention in the contract of the inter-relationship between the separately numbered paragraphs. In reviewing a written instrument in order to determine whether it is violative of public policy, the whole transaction must be evaluated and each case must be governed by its own circumstances. Miller v. Miller, 284 Pa. 414, 420, 131 A. 236, 238 (1925). Since the trial judge disposed of this case by dismissing the complaint without a hearing, there is no evidence of the parties’ intentions regarding the meaning or relationship of these separate provisions. In addition, the interpretation of Paragraph 13 itself is unclear, since the second sentence provided that “[t]his agreement shall not be construed as evidence of grounds of defense or an action for divorce.” Moreover, even if Paragraph 13 did constitute an illegal attempt to condition enforcement of the post-nuptial agreement upon the award of an uncontested divorce to one of the parties, the provisions for child support may still be enforceable.

In Craig’s Estate, 298 Pa. 235, 148 A. 83 (1929), the husband and the wife entered into a written post-marital agreement that provided for support and maintenance of the wife and of the parties’ son, and for the education of the son. Certain securities and a $5,000.00 promissory note were deposited with a trustee, the income thereon to be paid to the wife for the support and maintenance of her and the son. If the wife obtained a divorce on grounds of desertion from the husband within three years, the securities were to be transferred to her, and if she did not, the securities and the note were to be returned to the husband. It was also agreed that, if the divorce was granted, the principal on the note would be paid over to the son absolutely when he reached the age of twenty three. Upon the audit of the executor’s account in the husband’s estate, the son claimed either a child’s share therein, or the sum of $5,000.00 with interest in accordance with the terms of the agreement.

The main issue in the case was whether the entire agreement was void as against public policy, because it was a contract for the institution and the prosecution of a suit for divorce. The Court determined that the contract contained two separate and distinct promises, with separate considerations supporting them, even though they were embodied in a single agreement. The Court described the terms of the agreement, and their effect, as follows:

The one ... provided for the deposit and subsequent gift of the securities to the wife, the consideration for it being, ... an illegal agreement to institute and prosecute the suit for divorce; the other was the note given to secure the maintenance and education of appellant, and it is supported by the consideration of testator’s legal obligation so to do, from the time of the making of the agreement, when appellant was but seven and a half months old, until he reached his majority. It is of no consequence that the two were embodied in one document (13 C.J. 562); they were readily severable and must be so considered: 13 C.J. 561; Perkins v. Hart, 11 Wheaton 237, 251 [24 U.S. 237, 251, 6 L.Ed. 463]; Wolf v. Welton, 30 Pa. 202.
Id., 298 Pa. at 239-40, 148 A. at 85.

The Court further noted that the husband’s monthly payments on the note were evidence that he recognized its validity. Thus, the Court determined that the son was entitled to be awarded the full sum of $5,000.00 plus interest from his father’s estate.

In the instant case, the husband acknowledged “his duty to contribute support and maintenance to the minor children of the parties” in Paragraph 3 of the agreement. In fact, appellant’s complaint stated that appellee had fulfilled his support obligation to the children under the agreement from November 1, 1976 until September 1, 1977. In the absence of any evidence to the contrary, it appears that the husband’s child support obligations under this agreement are severable from his other obligations under the agreement. The fact that he partially performed his obligations is significant in this regard.

In Forbes v. Forbes, 159 Pa.Super. 243, 48 A.2d 153 (1946), it was alleged that a post-marital contract was invalid because it contained an illegal provision whereby the husband irrevocably pledged his future wages to satisfy his contract obligations in the event of default. Since there was evidence that the contract had already been performed in part, the court held that even if this provision were illegal, it would not affect the right of the wife to recover support payments. The Court quoted the following paragraph of the Restatement of Contracts

A bargain that is illegal only because of a promise or a provision for a condition, disregard of which will not defeat the primary purpose of the bargain, can be enforced with the omission of the illegal portion by a party to the bargain who is not guilty of serious moral turpitude unless this result is prohibited by statute. Recovery is more readily allowed where there has been part performance of the legal portion of the bargain.

RESTATEMENT (FIRST) OF CONTRACTS § 603 (1932).

The Restatement of Contracts, Second, Section 184, contains the following similar language:

(1) If less than all of an agreement is unenforceable under the rule stated in § 178, a court may nevertheless enforce the rest of the agreement in favor of a party who did not engage in serious misconduct if the performance as to which the agreement is unenforceable is not an essential part of the agreed exchange.
(2) A court may treat only part of a term as unenforceable under the rule stated in Subsection (1) if the party who seeks to enforce the term obtained it in good faith and in accordance with reasonable standards of fair dealing.

RESTATEMENT (SECOND) OF CONTRACTS § 184 (1979).

In light of the above cited authority, and in the absence of any evidence to the contrary, the child support provisions under the present post-nuptial agreement were enforceable although the other terms of the contract may have been illegal. We note that the question whether the wife is barred from enforcing the terms of the contract which provided for her own support and maintenance, is not before us, since this suit was instituted to recover past due child support payments only. We hold only that the trial judge mistakenly concluded that the child support provisions in this agreement were unenforceable, as a matter of law. Consequently, the trial court erred in dismissing appellant’s complaint and failing to rule on appellee’s preliminary objections. Therefore, we reverse and remand for the court to consider and act upon the preliminary objections to appellant’s complaint and for such further proceeding as thereafter may be appropriate.

Jurisdiction is not retained.

POPOVICH, J., concurs in the result.


author: PER CURIAM:

text:
    470 A.2d 1390
    COMMONWEALTH of Pennsylvania v. Gary RUSSELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1983.
    Filed Jan. 27, 1984.
    Joseph J. Yeager, Assistant Public Defender, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   PER CURIAM:

Defendant pled guilty to seventeen counts of burglary, twenty-two counts of theft by unlawful taking or disposition, and seventeen counts of criminal conspiracy. He was sentenced to serve three to six years imprisonment with a consecutive twenty years probation, and to pay restitution totalling $36,994.26. In this appeal from the judgment of sentence, defendant contends: (1) his sentence was manifestly excessive; and (2) the sentencing judge failed to state reasons on the record showing consideration of the required factors in imposing a sentence of restitution.

We agree with the second contention. The sentencing judge stated nothing on the record concerning restitution, except the amount that was ordered on each count. There was no consideration on the record of the required factors in determining a restitutionary sentence. See Commonwealth v. Fuqua, 267 Pa.Super.Ct. 504, 510-11, 407 A.2d 24, 27 (1979). Because we cannot determine what influence the restitutionary sentence may have had on the sentence of imprisonment and probation, we vacate the entire sentence and remand for resentencing. Therefore there is no need to consider defendant’s first issue.

Judgment of sentence vacated, and case remanded for resentencing. Jurisdiction relinquished.


author: SPAETH, Judge: HESTER, Judge,

text:
    471 A.2d 76
    COMMONWEALTH of Pennsylvania v. Franklin ELMORE, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1983.
    Filed Dec. 30, 1983.
    Reargument Denied March 2, 1984.
    Petition for Allowance of Appeal Granted Sept. 5, 1984.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Frank J. Scutella, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   SPAETH, Judge:

This appeal was taken from a judgment of sentence for rape. Appellant argues: (1) that the trial court committed reversible error in failing to grant a new trial where the jury’s request for part of the trial transcript was denied ex parte by the tipstaff; (2) that the trial court committed reversible error in failing to grant a mistrial due to a six-day delay in the trial proceedings; (3) that the trial court’s statement of reasons for its sentence was inadequate; and (4) that trial counsel was ineffective in failing to raise in the motion to modify sentence the inadequacy of the statement of reasons for the sentence. We agree with appellant’s first argument and therefore reverse and remand for a new trial, without addressing appellant’s remaining arguments.

The first day of trial started, before a jury, on Monday, January 12, 1981, at 2:23 p.m., and ended at 4:10 p.m. During this time the prosecution presented the testimony of five of its six witnesses, including the complainant, all of whom were cross-examined by defense counsel. On Tuesday morning, January 13, at 9:45, the jury was advised that the trial judge had taken ill and that the case would therefore be continued until Wednesday morning. On Wednesday morning, January 14, at 9:40, the jury was advised that the trial judge was still ill, and the trial was recessed until Monday morning, January 19.

The trial resumed on January 19, 1981, at 9:20 a.m., and at 11:00 a.m. the jury retired to deliberate. During this time the prosecution presented its final witness, the defense presented its two witnesses, and the prosecution presented a rebuttal witness. At 1:43 p.m. the jury returned with a question for the court regarding the legal definition of rape. The trial judge again recited the definition for the jury. The jury then resumed its deliberations, and at 3:05 p.m. returned a verdict of guilty.

After the trial was over, defense counsel interviewed the foreman of the jury, Patricia Hagmann. She indicated that at the start of the deliberations she had asked the tipstaff if the jury could see the record of the first day’s proceedings and that the tipstaff had denied this request. At the evidentiary hearing held October 1, 1981, Ms. Hagmann testified as follows:

Q. What specifically did you ask the tipstaff?
A. I asked them if we could have a copy of the records of the first day’s testimony.
Q. And what was their response, if any?
A. They just said no; that it wasn’t done that way.
Q. Was that response immediate or was there a time delay?
A. It was immediate.

In denying appellant’s motion for a new trial, the trial court criticized defense counsel for interviewing Ms. Hagmann. The court stated:

This juror had to be subpoenaed to appear by defendant’s counsel and gave the impression she was annoyed by such. Of course, we recognize the necessity for diligent advocacy but this was not a situation where the juror felt compelled to report an injustice to either the Court or defense counsel as she saw the denial of the transcript as a mere inconvenience not affecting their deliberations.
Slip op. at 3.

The court then went on to hold that even if defense counsel’s action was proper, no reversible error was committed. The court stated that even if it had received the jury’s request, its policy was to deny such requests. Slip op. at 4. The court also stated that granting the request would only have prejudiced appellant by highlighting the prosecution’s case. Id.

Nothing in the record before this Court suggests that defense counsel’s action in interviewing Ms. Hagmann was in any way improper. See Pa.Code of Prof.Resp. DR 7-108(D), (E). As to the merits of counsel’s argument, we must proceed in two-steps, asking first, was there error; and next, if there was, was the error harmless?

We have no difficulty in concluding that the tipstaff’s behavior constituted error. In fact, the Commonwealth’s brief concedes as much, arguing only that the tipstaff’s “error in judgment” was not of such magnitude as to require that the defendant be retried. Brief for Commonwealth at 7.

With respect to the magnitude of the tipstaff’s error, we note that the jury’s inquiry did not relate to an incidental matter, as, for example, the time at which the jurors were to eat lunch, but instead went directly to the heart of the deliberations. The inquiry should therefore have been conveyed to the trial judge, and should have been responded to by the judge, on the record, in open court, and in the presence of counsel. Commonwealth v. Bradley, 501 Pa. 25, 459 A.2d 733 (1983); Commonwealth v. Peterman, 430 Pa. 627, 244 A.2d 723 (1968), modified in part on other grounds, Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). (In fact, this is the procedure that the tipstaff and the court later followed when the jury requested that the legal definition of rape be repeated.) Moreover, the general prohibition of ex parte communications between judge and jury applies with special force to ex parte communications between tipstaff and jury. For not only is the defendant deprived of an opportunity to have his counsel correct any error that might occur; he is also deprived of his right to have the jury’s request resolved through the exercise of judicial discretion. See Commonwealth v. Milliner, 442 Pa. 537, 542, 276 A.2d 520, 523 (1971) (Roberts, J., dissenting) (“[Rjemarks by a court crier are even less proper than remarks by a judge in the absence of counsel.”)

In considering whether the error was harmless, we may start with our Supreme Court’s recent decision in Commonwealth v. Bradley, supra. There the Court rejected the view that all ex parte communications between judge and jury require reversal. Noting that some communications are so simple as to convey only the time set for the jurors’ meal, the Court held that only communications that create a reasonable likelihood of prejudice require reversal. See also Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978) (error not harmless if reasonable possibility it may have contributed to conviction). It is the Commonwealth’s burden of proving beyond a reasonable doubt that there was no such reasonable likelihood. Commonwealth v. Story, supra. Here, none of the Commonwealth’s arguments convinces us beyond a reasonable doubt that the tipstaff’s behavior did not create a reasonable likelihood of prejudice to appellant.

The Commonwealth argues that the error was harmless because under Pennsylvania Rule of Criminal Procedure 1114, the trial judge was prohibited from allowing the jury to take with it a transcript of the trial proceedings. In the Commonwealth’s view, because the trial judge would have been compelled by Rule 1114 to respond to the jury’s request as the tipstaff did, there was no prejudice to appellant. Although this argument has some superficial appeal, we reject it as being unrealistic. It is true that according to Ms. Hagmann’s testimony, the jury requested a “copy of the records of the first day’s testimony,” i.e., a copy of the transcript, and -that under Rule 1114, the trial judge would have had to deny this request. However, we think it unrealistic to suppose, as the Commonwealth does, that the matter would have ended there. Instead, in all probability someone would have asked, if not the jury itself then either defense coünsel or the trial judge himself, whether the jury’s concern could be satisfied by having parts of the transcript read to the jury. A request that parts of the transcript be read to the jury is not precluded by Rule 1114 but, rather, is a matter within a trial court’s discretion, Commonwealth v. Peterman, supra, and we are not convinced beyond a reasonable doubt that here the judge would have denied the request. Rather, as we shall discuss, we think it at least possible, if not probable, that in the particular circumstances of this case the judge would have granted the request.

The Commonwealth argues, however, that the trial court has stated that even if it had received the jury’s request, its policy was to deny such requests. This statement, however, is insufficient to support a determination that the error was harmless. We do not, of course, question the accuracy of the court’s statement of its policy; as just discussed, it is in accord with Rule 1114. The issue, however, is whether the court would have exercised its discretion to respond to the jury’s concern, had it known of that concern and had the concern been expressed in the presence of counsel. We do not believe that in resolving this issue we should rely on an after-the-fact statement. Given the six-day delay in the proceedings, the jury’s request was both natural and appropriate. It is one thing to say after-wards, faced with the prospect of granting a new trial, that the request would have been denied. It is another thing to say then, when the request could have been granted, with no inconvenience and to the enlightenment of the jury, that it would be denied.

The Commonwealth next argues that the error was harmless because if the request had been denied, the denial would not have been an abuse of discretion. We certainly accept the possibility that the court might have denied the jury’s request, and for purposes of analysis we may assume that the denial would not have been an abuse of discretion. See Commonwealth v. Coley, 297 Pa.Super. 435, 444 A.2d 110 (1982) (denying request not abuse of discretion); Commonwealth v. Jeter, 273 Pa.Super. 83, 416 A.2d 1100 (1979) (same); Commonwealth v. Reed, 268 Pa.Super. 240, 407 A.2d 1335 (1979) (same). This does not convince us beyond a reasonable doubt, however, that the error was harmless. For as we have just discussed, given the six-day delay in the proceedings, it is at least possible, if not probable, that the court would have granted the jury’s request. Such an order would have been well within the court’s discretion. See Commonwealth v. Peterman, supra (granting request to read parts of transcript not abuse of discretion); Commonwealth v. El, 273 Pa.Super. 1, 416 A.2d 1058 (1979) (same); Commonwealth v. Bolden, 268 Pa.Super. 431, 408 A.2d 864 (1979) (same); Commonwealth v. Banks, 267 Pa.Super. 10, 405 A.2d 1277 (1979) (same).

We may also note in this regard that whether there was an abuse of discretion is immaterial. The tipstaff’s behavior should not be reviewed under only an abuse of discretion standard, for a tipstaff has no power to exercise judicial discretion. Nor is there reason to ask whether the trial court abused its discretion, for it never exercised its discretion. Cf. Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983) (decision whether to bifurcate divorce proceedings is within trial court’s discretion, but where court failed to exercise its discretion, decision will be reversed and case remanded); Commonwealth v. Coley, supra (although trial court’s denial cited court’s general policy, court indicated on record that policy was appropriate in case before it; court therefore did exercise its discretion).

The Commonwealth’s final argument, accepted by the trial court, is that the error was harmless because reading the first day’s testimony, which represented the bulk of the Commonwealth’s case, would only have prejudiced appellant by highlighting the prosecution’s case. Although this argument is the Commonwealth’s most persuasive, again, it does not convince us beyond a reasonable doubt that the error was harmless. For after reviewing the record, we find that there was a reasonable likelihood of prejudice, to appellant from the failure to read the first day’s testimony.

The fact that the jury requested the first day’s transcript shows that the jurors’ memory of the first day's testimony was incomplete. If this testimony had been unequivocally favorable to the Commonwealth, we should agree with the Commonwealth’s contention. A review of the testimony discloses, however, that the testimony was not unequivocally favorable to the Commonwealth.

The complainant was the only witness who testified to the act of rape itself and to the identification of appellant as the offender. The complainant’s testimony and her credibility were therefore crucial to the prosecution’s case.

With respect to the act of rape itself, the complainant testified on direct examination in part as follows:

Q. Was there penetration?
A. No.
Q. He didn’t penetrate you?
A. (No response.)
Q. Did he stick his penis into you?
A. Yes.

The complainant further testified on cross-examination in part as follows:

Q. Going back for a moment, if we might, to the incident in the cemetery, you indicated on direct examination first that there was no penetration and that there was sexual contact. Do you recall whether or not the man who you say attacked you had an erection at this time?
A. No, he didn’t have an erection.
Q. He did not?
A. No.
Q. All right. Do you understand the difference between his penis touching you and actually penetrating your vagina?
A. I imagine it means whether he was all the way inside my body or not.
Q. Yes.
A. Well, he was inside my body.
Q. Okay. That’s your testimony today?
A. Yes.

Although this testimony may be sufficient to establish the element of penetration beyond a reasonable doubt, and may indicate only complainant’s unfamiliarity with the word “penetration,” this testimony is not unequivocally favorable to the Commonwealth. Moreover, any prejudice in this regard was not alleviated by the court’s summary of the evidence, which, as regards penetration, was as follows: “She told you ... how he penetrated her and had intercourse with her.”

With respect to the identification of appellant, the complainant testified on direct examination that she had met appellant once at her home before the offense and that after the offense she had identified him one time before the preliminary hearing and later at the preliminary hearing itself. She also identified appellant at the trial. On cross-examination the complainant admitted that she could not recall when appellant was in her home and that it could have been any time within the last four years. She further admitted that the identification before the preliminary hearing was a photographic line-up and was not an in-person identification. Finally, she admitted that at the preliminary hearing appellant was the only black man in the room or even in the building. Thus, while the complainant’s testimony taken as a whole may have been sufficient to convince the jury beyond a reasonable doubt that appellant was the offender, we can not be sure beyond a reasonable doubt that in reaching its decision the jury remembered and considered the weaknesses brought out on cross-examination or that its verdict would have been the same if it had. Cf. Commonwealth v. Coley, supra (testimony if read would only have prejudiced defendant because it was uncontradicted and only confirmed complainant’s unequivocal identification of defendant).

The judgment of sentence is vacated and the case remanded for a new trial. Jurisdiction is relinquished.

HESTER, J., filed a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent. I would affirm on the opinion of Judge Anthony of the court below.


author: WIEAND, Judge:

text:
    471 A.2d 80
    Robert B. REED and Audrey E. Reed, Husband and Wife v. Frank WOLYNIEC, t/d/b/a Wolyniec Real Estate, Inc., Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1983.
    Filed Dec. 30, 1983.

      Michael J. Casale, Jr., Williamsport, for appellant.
    Paul W. Brann, Lewisburg, for appellees.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

This is an appeal from a judgment declaring appellees, Robert B. and Audrey Reed, to be owners by adverse possession of a fifty feet wide lot adjacent to their residence in the Village of Allenwood, Gregg Township, Union County. The judgment was entered in an action to quiet title to the lot instituted by appellees against Frank Wolyniec, appellant, who by deed dated August 17, 1973 but not recorded until October 24, 1979, had taken record title to a tract of 1.01 acres located to the rear of appellees’ home, which tract included the lot in dispute.

In October, 1955, the Reeds purchased at public sale and went into possession of a residential dwelling and garage situated on a lot (56 x 165) on the south side of Bridge Avenue. Adjoining their lot on the west was another lot, known as Lot 152, which contained a driveway, shrubbery and lawn. This lot had been maintained by the Reeds’ immediate predecessor in title, and the Reeds continued to maintain it thereafter. The driveway entered the lot from Bridge Avenue and formed a circle at the rear of the lot which covered the entire width thereof. The several tracts were depicted on an engineer’s drawing, with driveway and shrubs added, as follows:

After appellees had gone into possession, they continuously used the driveway for purposes of ingress and egress to and from the garage behind their residence. They also maintained the adjacent lot by cutting the law and by planting and maintaining thereon various flowering and non-flowering shrubs. They used the land for recreational purposes and placed in concrete thereon a pole to which a birdhouse was attached. In 1979, appellant began to use the lot to move vehicles and equipment from Bridge Avenue to his land at the rear of the Reed property. This caused damage to the driveway, as well to the shrubs and lawn, and generated a dispute which culminated in the present litigation. The trial court found that appellees’ possession of the lot had been exclusive, open, notorious, hostile and continuous for more than twenty-one years. The court concluded, therefore, that appellees had established title by adverse possession.

In Smith v. Peterman, 263 Pa.Super. 155, 397 A.2d 793 (1978), this Court said that

“ ‘[O]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years. Each of these elements must exist, otherwise the possession will not confer title.’ Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 158, 159, 360 A.2d 209, 213 (1976). An adverse possessor ““must intend to hold the land for himself, and that intention must be made manifest by his acts’ ”.’ Kaminski Brothers, Inc. v. Grassi, 237 Pa.Super. 478, 480, 352 A.2d 80, 81 (1975). He must ‘keep his flag flying and present a •hostile front to all adverse pretensions.’ Commonwealth v. Bierly, 37 Pa.Super. 496, 504 (1908). Building a residence on land or cultivating it in a regular and continuous way may after 21 years result in ownership. See The Susquehanna and Wyoming Valley RR and Coal Co. v. Quick, 68 Pa. 189 (1871); Cf. Ewing v. Dauphin County Tax Claim Bureau, 31 Pa.Cmwlth. 285, 375 A.2d 1373, 1375 (1977). However, as has been repeatedly said, ‘temporary acts on the land, ... are not the actual possession required.’ Inn Le’Daerda v. Davis, supra, 241 Pa.Super. at 159, 360 A.2d at 213 ....
“It seems fair to summarize this case law as holding that only acts signifying permanent occupation of the land and done continuously for a twenty-one year period will confer adverse possession.”

Id., 263 Pa.Superior Ct. at 160-161, 397 A.2d at 796. It has been held that use of a piece of land for lawn purposes in connection with a residence, together with continued maintenance of such lawn, is sufficient to establish adverse possession. See: Inn Le'Daerda, Inc. v. Davis, 241 Pa.Super. 150, 167-168, 360 A.2d 209, 218 (1976); Ewing v. Dauphin County Tax Claim Bureau, 31 Pa.Cmwlth. 285, 375 A.2d 1373 (1977). See also: Burns v. Mitchell, 252 Pa.Super. 257, 381 A.2d 487 (1977).

Appellant argues that appellees’ evidence was insufficient to prove exclusive and continuous possession. On appeal, however, the findings of fact of the trial judge, when affirmed by the court en banc, have the weight and effect of a jury verdict, and an appellate court will not disturb them if they are adequately supported by competent evidence. Wheatcroft v. Albert Co., 407 Pa. 97, 180 A.2d 216 (1962). In the instant case, the trial court found that appellees’ possession of Lot 152 had been exclusive and continuous, and the record supports this finding. Still, we shall examine more closely appellant’s contentions.

The possession adequate to establish adverse possession “need not be absolutely exclusive; it need only be of a type of possession which would characterize an owner’s use.” Lyons v. Andrews, 226 Pa.Super. 351, 357, 313 A.2d 313, 316 (1973). Thus, the exclusive character of appellees’ possession was not destroyed because other persons occasionally passed unobserved over the lot. It was enough that appellees’ possession was to the general exclusion of others and that they remonstrated with persons who attempted, without permission, to use the land. See: Home Land Co. v. Nye, 93 Pa.Super. 452 (1928).

Appellant’s argument that the Reeds’ possession was not continuous is based primarily upon the fact that in 1963 the Reeds attempted to sell their land and moved to California, where they remained for a period of five months. The sale of the Allenwood land was not consummated, however, because a neighbor posted a “No Trespassing” sign in the driveway and the purchaser, having consulted an attorney, discovered that appellees did not hold record title to the lot on which the driveway was situated. Thereafter, appellees returned to Pennsylvania and resumed their occupancy of the residence. Upon their return they again used and maintained the driveway and the lot on which it was situated.

The continuity of appellees’ possession of Lot 152 was not destroyed by their moving to California or by their attempt to sell the land in 1963. Possession of land is dominion over the land; it is not equivalent to occupancy. Susquehanna & Wyoming Valley Railroad and Coal Co. v. Quick, 68 Pa. 189, 199 (1871); Stephens v. Leach, 19 Pa. 262 (1852). As a general rule, “a temporary break or interruption, not of unreasonable duration, does not destroy the continuity of the adverse claimant’s possession.” 3 Am.Jur.2d, Adverse Possession § 69. In order to break the continuity of possession, there must either be an abandonment or possession must be taken by one disconnected with the previous holder. Thompson v. Kauffelt, 110 Pa. 209, 217, 1 A. 267, 270 (1885); Kaminski Brothers, Inc. v. Grassi, 237 Pa.Super. 478, 484, 352 A.2d 80, 83 (1975). Here, the Reeds did not abandon their possession. Indeed, when appellees attempted to sell their residence they included in their offer the driveway on Lot 152. One must necessarily conclude from these facts that they kept their flag flying and continued their hostile claim against all the world.

After the agreement of sale had been executed and while the Reeds were in California, Christian Schmidt, who then held record title to the rear tract, placed a “No Trespassing” sign in the driveway, but removed it after twenty-four hours. When the purchaser consulted an attorney and learned that the Reeds did not hold record title to the land on which the driveway was situated, the purchaser refused to consummate the purchase, and his down payment was refunded. After the Reeds returned from California, they also consulted an attorney, and a letter was sent to Vernon Anstadt, who had purchased the rear tract from Christian Schmidt. The letter asserted that Reeds had a right, based on adverse user, to continue to use the driveway. Thereafter, no further efforts were made to interfere with the Reeds’ uninterrupted and exclusive use of the driveway and/or the lot on which the driveway was situated until appellant’s use thereof in 1979. Was the twenty-four hour erection of a “No Trespassing” sign sufficient to interrupt the Reeds’ adverse possession?

The answer appears in the Restatement of Property § 459(2) where the rule is stated as follows:

“An adverse use is uninterrupted when those against whom the use is adverse do not
(a) bring and pursue to judgment legal proceedings in which the use is determined to be without legal justification, or
(b) cause a cessation of the use without the aid of legal proceedings.”

Under this rule, a “single instance of attempted interruption of an adverse user ... resulting in no actual interruption and followed by no attempt to test the right, does not necessarily destroy its continuity.” 3 Am.Jur.2d, Adverse Possession § 68. See also: Keefer v. Jones, 467 Pa. 544, 359 A.2d 735 (1976); Margoline v. Holefelder, 420 Pa. 544, 218 A.2d 227 (1966); Zimmer v. Dykstra, 39 Cal.App.3d 422, 114 Cal.Rptr. 380 (1974); Anno., 43 A.L.R.2d 52, § 11; 42 Pa.C.S.A. § 5530(b), substantially re-enacting the Act of April 13, 1859, P.L. 603, § 1, 12 P.S. § 85.

In the instant case, no legal proceeding was instituted on behalf of the record owner, and his extra-judicial act of posting a “No Trespassing” sign did not cause a cessation of appellees’ possession. Appellees insisted that they had acquired a right to the driveway and continued their use, to the exclusion of others, of both the driveway and the whole of the lot on which it was situated. The trial court, therefore, was correct when it concluded that appellees use of Lot 152 had been uninterrupted.

We have examined carefully the record of evidence presented to the trial court and conclude that its findings are supported by the evidence and that the law has been correctly applied. Appellees did, in fact, continue in open and adverse possession of Lot 152 and did exercise exclusive dominion thereof for more than twenty-one years. They thereby acquired title by adverse possession. The judgment of the Court of Common Pleas of Union County will be affirmed.

Affirmed.


text:
    471 A.2d 86
    Helen V. WRIGHT, Administratrix of the Estate of James D. Wright, Deceased v. NATIONAL GRANGE MUTUAL INSURANCE COMPANY and Fireman’s Fund Insurance Company, Appellant.
    Superior Court of Pennsylvania.
    Argued April 21, 1983.
    Filed Jan. 20, 1984.

      James M. Marsh, Philadelphia, for National Grange, appellant.
    Michael Saltzburg, Philadelphia, for Fireman’s Fund, appellant.
    Mayer Horwitz, Philadelphia, for appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   ROWLEY, Judge:

This is an appeal from the entry of judgment in favor of appellee, Helen V. Wright, Administratrix of the Estate of James D. Wright, Deceased, and against the appellants, National Grange Mutual Insurance Company and Fireman’s Fund Insurance Company. For the reasons set forth more fully below, we reverse in part and remand for further proceedings.

The facts are undisputed. On December 29, 1978, James D. Wright, a pedestrian, was injured in an automobile accident. He died twelve days later. At the time of his death, James was not the named insured under any policy of no-fault automobile insurance. However, James lived with his mother, Helen Y. Wright, who owned a single automobile insured under a policy of insurance issued by Fireman’s Fund. Gerald Wright, James’ brother, also lived in the same household with James and their mother. Gerald owned a single automobile insured under a policy issued by National Grange. Helen V. Wright, as James’ personal representative, made a demand for the full payment of no-fault benefits from each insurer. The insurers admitted that James was an insured under their respective policies, see 40 P.S. § 1009.103 (“Insured”), and also admitted that they were “jointly and severally liable” to appellee in her representative capacity for (1) survivor’s loss benefits in the total amount of $5,000.00, (2) work loss benefits in the total amount of $15,000.00 as that loss accrues, and (3) funeral expenses in the total amount of $1,500.00. See 40 P.S. §§ 1009.103 and 1009.202. The insurers denied any further liability.

Appellee then instituted this suit by filing a complaint in assumpsit on December 17, 1980. Appellee asserted that she was entitled to a judgment against the insurers in the amount of $10,000.00 for survivor’s benefits, $30,000.00 for work loss benefits and $1,500.00 in funeral benefits as well as counsel fees, costs and interest at the rate of 18%. per year. In their answers, the insurers admitted the underlying facts and their liability but denied that they were obligated to provide any benefits in an amount greater than the limits specified in one of the two applicable policies. Appellee then filed a motion for summary judgment.

The parties submitted two issues to the trial court for its determination. The first was whether or not appellee was entitled to “stack” the benefits provided in each insurance policy so as to permit her to claim the amounts set forth in her complaint and her motion. The second issue was whether the insurers should pay work loss benefits in a lump sum or be permitted to pay out work loss benefits as the economic detriment accrued. The trial court found in favor of appellee on both issues and, in an order entered November 9, 1981, the court granted her motion for summary judgment in the amounts set forth above. The insurers sought and were granted reconsideration of this order pursuant to Pa.R.A.P. 1701. On December 9, 1981, the trial court again granted appellee’s motion for summary judgment, this time reducing the amount of the judgment by the amount of the benefits already paid by the insurers. Judgment was entered against National Grange and Fireman’s Fund jointly and severally, in the amount of $5,000.00 for survivor’s benefits, $17,703.26 for work loss benefits, $1,500.00 for funeral expenses, and interest at the rate of 18% per annum, from September 22, 1980. The trial court also awarded appellee $1,000.00 for counsel fees. The insurers thereafter, on December 30, 1981, filed a notice of appeal to this court.

Our Court sitting en banc has recently decided that a provision in a policy providing the coverage required by the No-Fault Act violates neither that Act nor public policy by prohibiting the “stacking” of no-fault basic loss benefits. Antanovich v. Allstate Insurance Company, 320 Pa.Super. 322, 467 A.2d 345 (1983). In Antanovich, more than one car was insured under a single policy of insurance issued by a single insurer. In the case before us, there are two separate insurance policies, issued by different insurers, under each of which the decedent was an “insured”. While the facts of this case are thus somewhat different than those which confronted the court in Antanovich, we are of the opinion that such a difference does not require a departure from the holding in that case. President Judge Spaeth’s discussion of the General Assembly’s intent, the public policy of this Commonwealth and the construction of the No-Fault Act set forth in Antanovich is equally pertinent to this case and controls our disposition of all arguments based on statutory grounds: The Pennsylvania No-Fault Motor Vehicle Insurance Act does not require that no-fault basic loss benefits be stacked.

Aside from statutory grounds, appellee does argue that, based upon a reading of the pertinent provisions of the policies, stacking should be permitted in this case as a matter of contract. She claims that the policies are ambiguous because they can be interpreted “to prohibit an excess recovery over and above the amount of loss actually sustained. The endorsement obviously does not contemplate the situation where a loss may exceed the limits of the benefits available.” Brief for Appellee at 11. We disagree.

In the trial court, the parties stipulated that the policies issued by the insurers were in all material respects identical and a true and correct copy of the policy issued by Fireman’s Fund was submitted to the court. It was therefore admitted that each insurer had obligated itself to provide only the minimum coverage required by the No-Fault Act. See 40 P.S. §§ 1009.103 (“Allowable expense”), 1009.111(b), and 1009.202. The parties have also stipulated. that the Personal Injury Protection (PIP) endorsement attached to each policy contained the following provisions:

LIMITS OF LIABILITY: Regardless of the number of persons insured, policies or plans of self-insurance applicable, claims made or insured motor vehicles to which this coverage applies, the Company’s liability for personal injury protection benefits with respect to bodily injury to any one eligible person in any one motor vehicle accident is limited as follows:
(1) the maximum amount payable for work loss shall not exceed $15,000, ...; ...;
(3) the maximum amount payable for funeral expenses shall not exceed $1,500;
(4) the maximum amount payable for survivor’s loss shall not exceed $5,000.
* * sfc * * sjc
CONDITIONS: H. Non-Duplication of Benefits; Other Insurance.
No eligible person shall recover duplicate benefits for the same elements of loss under this or any other similar automobile insurance including self-insurance. If the eligible person has such other insurance applicable to the accident, the maximum recovery shall not exceed the amount payable under the insurance or self-insurance providing the highest dollar limit.
In no case shall the Company be liable for a greater proportion of any loss than this policy’s limit bears to the sum of all limits of liability of all applicable insurance and self-insurance.
Repro. Rec. at 45a, 46a.

Contrary to appellee’s assertion, these provisions are not ambiguous. Rather, when read together, they quite clearly limit a claimant to a single no-fault recovery.

The Limits of Liability clause is identical to the one upheld by this court in Antanovich, 320 Pa.Super. at 326, 467 A.2d at 346. This clause not only puts a ceiling on the company’s liability, but also sets forth the specific categories of loss for which benefits will be paid out. Moreover, the first two sentences of Condition H state that no claimant shall be permitted to obtain two recoveries for any single category of loss set forth in the Limits of Liability clause. If more than one source of basic loss benefits is available to a claimant under these policies, all sources are to be applied in reaching the ceilings set forth in the Limits of Liability clause of the policy with the highest dollar limit. The combined maximum recovery permitted under the terms of these policies is limited to a single recovery up to the limits specified in the policy with the highest dollar amount. Therefore, the combined effect of the Limits of Liability clause and the Non-Duplication of Benefits clause is to prohibit the cumulation of no-fault basic loss benefits beyond the level specified in the policy bearing the highest dollar limit. The third sentence of Condition H sets forth a typical policy-limits ratio pro rata clause of the type which has been approved by the Commissioner of Insurance, 31 Pa.Code $66.102(e), and upheld by this court in Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 464 A.2d 431 (1983). Such a clause is consistent with 40 P.S. § 1009.204(b) as to the manner in which contribution is to be made among insurers. In sum, these policies prohibit the stacking of benefits and provide for the apportionment of the responsibility for paying benefits as required by the No-Fault Act. The construction placed upon these policies by appellee is strained and reads into them an ambiguity which is not there. For these reasons, we conclude that the policies before us validly bar the stacking of no-fault benefits and should have been enforced.

The second issue presented in this appeal is whether the post-mortem work loss benefits are payable in a lump sum or as economic loss accrues. The court in Antanovich was confronted with the same issue and concluded that such benefits are to be paid in a lump sum. Id. 320 Pa.Super. at 324, 467 A.2d at 346. The trial court therefore properly required the insurers in this case to pay such benefits in a lump sum.

Insofar as the trial court permitted the stacking of no-fault benefits, the judgment of the trial court is reversed. Insofar as the trial court required the insurers to make a lump-sum payment of post-mortem work loss benefits, the judgment of the trial court is affirmed. Because of our holdings on these issues, it is inappropriate for us to now consider the propriety of that part of the judgment requiring the payment of interest and attorneys’ fees. Those parts of the judgment of the trial court requiring the payment of interest and attorneys’ fees are vacated and the trial court is instructed to reconsider its award in light of this opinion. This case is remanded to the trial court for proceedings not inconsistent with this opinion.

Jurisdiction is not retained.

      . Section 204(b) states, in pertinent part:
      (b) Multiple sources of equal property. — If two or more obligations to pay basic loss benefits apply equally to an injury under the priorities set forth in subsection (a) of this section, the obligor against whom a claim is asserted first shall process and pay the claim as if wholly responsible. Such obligor is thereafter entitled to recover contribution pro rata from any other such obligor for the basic loss benefits paid and for the costs of processing the claim.
      This provision inferentially supports the conclusion that a no-fault claimant may rightfully present his or her claim to only one insurer and obtain only a single recovery.


text:
    471 A.2d 89
    COMMONWEALTH of Pennsylvania v. Anthony PONDER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 21, 1983.
    Filed Jan. 20, 1984.

      Norris E. Gelman, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

Anthony Ponder was tried non-jury and was found guilty of robbery, conspiracy and related offenses arising from a theft committed at knifepoint in the City of Philadelphia. The trial judge thereafter sustained a motion in arrest of judgment and ordered Ponder’s discharge. On appeal to this Court, the order arresting judgment was reversed; and the case was remanded for consideration of an undetermined motion for new trial. See: Commonwealth v. Ponder, 260 Pa.Super. 225, 393 A.2d 1235 (1978). The trial judge, on remand, ordered a new trial; and the case was subsequently assigned to another judge for retrial. Ponder again waived trial by jury and elected to be tried without a jury. Following a verdict of guilty, oral post-trial motions were denied, and Ponder was sentenced to serve a term of imprisonment for not less than three nor more than twenty years on the robbery conviction and was placed on probation for ten years on the conviction for conspiracy. Ponder filed a direct appeal from the judgments of sentence.

Appellant’s first contention is that his “waiver of jury trial was not a knowing and intelligent waiver of his jury trial rights since at no time was there any mention of how he would participate in the selection of the jury nor was there any mention of his absolute right to challenges for cause or preemptory [sic] challenges.” There is no merit in this argument.

In Commonwealth v. Smith, 498 Pa. 661, 663, 450 A.2d 973, 973-974 (1982), the Supreme Court addressed the adequacy of a jury-trial-waiver colloquy as follows:

“Our Rules of Criminal Procedure require a trial judge to ascertain whether a defendant’s waiver of the right to trial by jury ‘is a knowing and intelligent waiver, and such colloquy shall appear on the record.’ Pa.R.Crim. Proc. 1101. For the waiver to be ‘knowing and intelligent,’ the defendant must know ‘the essential ingredients of a jury trial’—
‘the requirements that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.’
Commonwealth v. Williams, 454 Pa. 368, 373, 312 A.2d 597, 600 (1973).”

The record is clear that appellant understood these “essential ingredients.” The following colloquy occurred:

“Q. Now, you have a right, Mr. Ponder, a Constitutionally guaranteed right, to ask for a jury trial, do you understand that, sir?
A. Yes.
Q. And if you were to ask for a jury trial, a panel of jurors, all of whose members would be citizens ... of Philadelphia, would then be called in to this room, we would have a selection process, do you understand, sir?
A. Yes.
Q. You would be allowed to participate in that process through your counsel by asking those questions which you believe would be designed to elicit information which would help you in securing the fairest possible jury, do you understand, sir?
A. Yes.
Q. And you could participate in that questioning, as I told you, do you understand that, sir?
A. Yes.
Q. Now, that jury once selected, the twelve jurors, would sit in the jury box, be sworn in to listen to the evidence and make a decision on their oath of office. They would hear all the evidence, the arguments and charge of the Court, and then they would make the ultimate decision as to whether you were to be found guilty or not guilty, do you understand, sir?
A. Yes.
Q. I would also have to instruct them and would instruct them that they could not return a guilty verdict unless they unanimously agreed, do you understand, sir?
A. Yes.”

This colloquy, as appellant concedes, was full and complete. Appellant’s responses demonstrated a knowing and intelligent waiver of the right to trial by jury. There was no requirement that the trial court give appellant a play-byplay description of the procedure to be followed in selecting a jury. It was enough that appellant knew and understood the fundamental nature of the right which he was surrendering when he opted for trial without jury. Commonwealth v. Madison, 271 Pa.Super. 382, 413 A.2d 718 (1979).

Appellant also contends that trial counsel was ineffective “for failing to withdraw his written post trial motion before the first trial judge and thereby risking a higher sentence before another-jurist.” This contention is based on the assumption that the first trial judge, having arrested judgment on a finding of guilt, would have imposed a lenient sentence. This contention is equally without merit.

“Our task in cases of this nature ... encompasses an independent review of the record ... and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives ... We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record ... [T]he balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

Commonwealth v. Crawford, 285 Pa.Super. 169, 179, 427 A.2d 166, 171 (1981), quoting Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352-353 (1967). If it can be determined from the record that counsel’s stewardship was constitutionally adequate, the judgment of sentence must be affirmed. See, e.g., Commonwealth v. Quarles, 310 Pa.Super. 74, 456 A.2d 188 (1983); Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982); Commonwealth v. Stafford, 307 Pa.Super. 278, 453 A.2d 351 (1982). If, however, the record does not disclose a rational basis for counsel’s strategic decision, the case must be remanded for an evidentiary hearing. Commonwealth v. Byrd, 493 Pa. 178, 425 A.2d 722 (1981); Commonwealth v. Murray, 320 Pa.Super. 77, 466 A.2d 1070 (1983); Commonwealth v. Speller, 311 Pa.Super. 569, 458 A.2d 198 (1983); Commonwealth v. Golson, 310 Pa.Super. 532, 456 A.2d 1063 (1983); Commonwealth v. Stoner, 284 Pa.Super. 364, 425 A.2d 1145 (1981).

In this case, it is clear that counsel’s decision to pursue the motion for new trial had a reasonable basis designed to effectuate appellant’s interest. If, as appellant asserts, the original trial judge experienced doubts about appellant’s guilt after he had once found him guilty, counsel then had to decide whether to allow the felony conviction to stand and seek a lenient sentence or seek a new trial with the possibility of an acquittal. Counsel chose the latter and was successful in obtaining a new trial. Counsel cannot be held ineffective because, in hindsight, the course chosen resulted in a sentence of imprisonment following a new finding of guilt by a second judge. See: Commonwealth v. McNeal, 493 Pa. 395, 426 A.2d 606 (1981); Commonwealth v. Mitchell, 303 Pa.Super. 34, 449 A.2d 64 (1982); Commonwealth v. Shoats, 297 Pa.Super. 236, 443 A.2d 814 (1982); Commonwealth v. Crawford, supra. In determining counsel’s effectiveness we focus only upon whether the course chosen by counsel had a reasonable basis designed to effectuate appellant’s interest. Commonwealth v. McKnight, 311 Pa.Super. 460, 457 A.2d 1272 (1983); Commonwealth v. Cofield, 310 Pa.Super. 356, 456 A.2d 650 (1983); Commonwealth v. Williams, 304 Pa.Super. 351, 450 A.2d 716 (1982).

Under the circumstances of this case, given the doubts as to appellant’s guilt expressed by the original trial judge, it is doubtful that effective counsel had any real choice. He was obliged to seek for his client a full acquittal. This he could do only by pursuing the motion for new trial.

The judgments of sentence are affirmed.

      . The issue is being raised for the first time on appeal; it was neither argued in nor considered by the trial court. Normally, the failure to raise an issue in the trial court will be deemed a waiver of the issue and preclude this Court’s consideration thereof on appeal. Commonwealth v. Pittman, 320 Pa.Super. 166, 466 A.2d 1370 (1983); Commonwealth v. Watson, 311 Pa.Super. 89, 457 A.2d 127 (1983). We consider it here only because of appellant’s averred conclusion, unsupported by any averment of facts, that trial counsel was ineffective for failing to raise the issue in the trial court. Because of the lack of merit in appellant's argument, it is obvious that counsel was not ineffective for failing to raise it in the trial court. See, e.g., Commonwealth v. Boyd, 300 Pa.Super. 539, 446 A.2d 1290 (1982); Commonwealth v. Moore, 300 Pa.Super. 488, 446 A.2d 960 (1982).

      . Appellant’s argument is as follows: "[T]here could be no better sentencing posture, in that the trial court actually believed that the convicted accused was not guilty, and believed that to the point of having arrested judgment and discharged him once before. Since leopards do not change their spots readily, appellant submits that the trial judge’s feelings toward this conviction must have continued unabated, and that any sentence imposed would have been lenient.” Appellant’s Brief, p. 8.


text:
    January 13, 1984.
    472 A.2d 229
    Asakura etc. v. Krall etc., Appellants.
    Reargument Denied March 16, 1984.
    Argued October 11, 1983.
    George J. McConchie, for appellants; Keith S. Erbstein, for appellees.
    Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.
   Judgment affirmed.


text:
    470 A.2d 1018
    Commonwealth v. Crouse, Appellant.
    Submitted November 7, 1983.
    Alba Victor Dell, for appellant; Floyd Paul Jones, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Affirmed.


text:
    470 A.2d 1018
    Commonwealth v. Gaines, Appellant.
    Petition for Allowance of Appeal Denied May 11, 1984.
    Submitted June 9, 1983.
    John H. Corbett, Jr., Public Defender, for appellant; Dara A. DeCourcy, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1018
    Commonwealth v. Garvey, Appellant.
    Petition for Allowance of Appeal Denied May 1, 1984.
    Argued October 18, 1983.
    Robert A. Rovner, for appellant; Frances Gracner Gerson, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   Affirmed.


text:
    470 A.2d 1019
    Commonwealth v. Gibbs, Appellant.
    Petition for Allowance of Appeal Denied June 13, 1984.
    Submitted June 23, 1983.
    Margaret M. Boyce, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1019
    Commonwealth v. Greely, Appellant.
    Petition for Allowance of Appeal Denied June 22, 1984.
    Submitted November 8, 1983.
    John P. Liekar, for appellant; Frank C. Roney, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1019
    Commonwealth v. Harvey, Appellant.
    Petition for Allowance of Appeal Denied May 14, 1984.
    Submitted October 24, 1983.
    Rosemarie T. Kenkelen, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1019
    Commonwealth v. King, Appellant.
    Submitted November 7, 1983.
    Robert Bruce Evanick, Public Defender, for appellant; Sheryl Ann Dorney, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    470 A.2d 1020
    Commonwealth v. Maier, Appellant.
    Petition for Allowance of Appeal Denied June 22, 1984.
    Submitted November 16, 1983.
    Scott Edwin Lash, for appellant; Charles M. Guthrie, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   Appeal from the order of the trial court is affirmed.


text:
    470 A.2d 1020
    Commonwealth v. Newsuan, Appellant.
    Submitted October 21, 1983.
    Leon Wilbert Tucker, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Judgment of sentence affirmed.