text:
    502 A.2d 237
    COMMONWEALTH of Pennsylvania, Appellant, v. Enrico BERARDI, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed Dec. 20, 1985.

      Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    Vincent A. Tucceri, Pittsburgh, for appellee.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   PER CURIAM:

Appellee was charged with one count of gambling devices and proceeded to trial without a jury. At the close of the Commonwealth’s case, the trial court sustained appellee’s demurrer. The Commonwealth filed a motion for reconsideration which was denied, and this appeal followed. The issue presented for our consideration is whether the trial court erroneously granted appellee’s demurrer where the evidence was sufficient to establish that he maintained a device for gambling purposes.

In ruling on a demurrer, the court must determine whether the evidence, if credited by the factfinder, is legally sufficient to warrant the conclusion that the accused is guilty beyond a reasonable doubt. Commonwealth v. DePetro, 350 Pa. 567, 39 A.2d 838 (1944). In sustaining the demurrer herein, the trial court found that the evidence failed to establish that appellee’s conduct was such as to constitute a violation of the statute under which he was charged. The relevant evidence adduced at trial is as follows:

At 11:45 p.m. on February 10, 1984, two state troopers entered appellee’s tavern. One of them played a coin operated video draw poker machine, and accumulated forty credits or free games. At approximately 1:00 a.m., appellee requested that everyone leave as it was almost closing time. Approximately five minutes later the trooper informed ap-pellee that he had accumulated forty credits. Appellee in turn gave him ten dollars and closed the tavern for the night.

18 Pa.C.S. § 5513(a)(1), (2) provides:

A person is guilty of a misdemeanor of the first degree if he:

(1) intentionally or knowingly makes, assembles, sets up, maintains, sells, lends, leases, gives away, or offers for sale, loan, lease or gift, any punch board, drawing card, slot machine or any device to be used for gambling purposes, except playing cards;
(2) allows persons to collect and assemble for the purpose of unlawful gambling at any place under his control.

This court has held that the three elements of gambling are consideration, a result determined by chance rather than skill, and a reward. Commonwealth v. Weisman, 331 Pa.Super. 31, 479 A.2d 1063 (1984). It has also been determined that a free game in and of itself does not constitute a reward. Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973 (1983).

The trial court herein found that although the elements of consideration and chance were present, that of a reward was not. Specifically, the court noted that no evidence was received as to the exact amount of money the state policeman deposited in the machine which was important in light of the failure to prove the basis for the payment of ten dollars. He further noted that the payment was made at closing time and therefore could be interpreted as a refund of money which the trooper deposited. We agree with the final determination of the trial court that the evidence was not legally sufficient to prove the elements of the offense charged.

Order affirmed.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent. “The test to be applied in ruling on a demurrer is whether, accepting as true all of the prosecution’s evidence and all reasonable inferences therefrom, it is sufficient to support a finding by the fact-finder that the defendant is guilty beyond a reasonable doubt.” Commonwealth v. Turner, 491 Pa. 620, 622, 421 A.2d 1057, 1058 (1980). Because the evidence in this case was sufficient to support such a finding, the demurrer should not have been granted.

      . 18 Pa.C.S. § 5513(a)(1), (2).

      . Although appellee did not file a motion to quash, he now argues that we should quash the Commonwealth’s appeal because the trial court’s order is the functional equivalent of an acquittal. The record does not support appellee’s argument that the trial court made factual or credibility findings in order to sustain his demurrer. Rather, the trial court viewed the evidence in the light most favorable to the Commonwealth and determined that there was insufficient evidence from which a jury could find appellant guilty beyond a reasonable doubt. Such a determination is one of law and is appealable by the Commonwealth. Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985).


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    502 A.2d 239
    Dorothy PARKER v. WASHINGTON NATIONAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Filed Dec. 20, 1985.

      Walter T. McGough, Jr., Pittsburgh, for appellant.
    Herbert M. Lurie, Pittsburgh, for appellee.
    Before BROSKY, ROWLEY and FEENEY, JJ.

      The Honorable John M. Feeney, of the Court of Common Pleas of Allegheny County, Pennsylvania, is sitting by designation.

   BROSKY, Judge:

This case is before us on appeal from judgment entered for appellee Dorothy Parker, the beneficiary of an insurance policy issued by appellant insurance company on the life of Chester Parker. Mr. Parker was killed in an automobile accident on October 3, 1981, on the 40th Street Bridge in Pittsburgh. The sole issue raised on appeal is whether or not the insurance policy in question precludes recovery due to the insured having been “injured” as the result of his own intoxication. Appellant argues that the trial court erred in finding that the term “injury” in the Definitions and Exceptions section of the policy did not unambiguously include death, and in awarding benefits to appellee notwithstanding the fact that the insured died as the result of an injury incurred due to the insured being under the influence of an intoxicant. We find appellant’s argument persuasive, and, accordingly, we reverse.

The case was originally tried before a Board of Arbitration, which found for appellee. The case was then appealed to the Court of Common Pleas for a de novo trial, and was decided, non-jury, as a “case stated” with a written stipulation of facts. The parties agreed that the deceased was insured for $10,000 at the time of his death under appellant’s “100 Plus 10” travel accident policy, and that “[t]he collision causing Chester Parker’s death occurred as a result of Chester Parker being under the influence of an intoxicant.” The trial court also found for appellee, finding ambiguity in the policy.

The certificate of insurance issued to the deceased reads as follows:

Washington National Insurance Company ... HEREBY INSURES the person named in the Schedule of Certificate Information on the filing back of Page four hereof (the Insured) for the period (beginning with the effective date shown in such schedule at 12:01 A.M., Standard Time at the place where the Insured resides), that he remains a member in good standing of the Club, against loss of life and for hospitalization resulting from accidental bodily injury sustained while this Certificate is in force subject to all conditions and limitations of the Group Accident Policy, and sustained by the insured only in the manner described before (hereinafter called Such Injury).
(1) AUTOMOBILE AND BICYCLE. While driving or riding in any automobile, taxicab, bus, truck, camper, motor-home, non-motorized bicycle or adult tricycle.
SECTION ONE INDEMNITY FOR LOSS OF LIFE The Company will pay the sum of $10,000.00 if Such Injury shall be sustained which results in death.
SECTION TWO HOSPITAL INDEMNITY If Such Injury shall confine the Insured to a lawfully operated hospital within ninety days from the date of accident, the company will pay $100.00 per day for as long as the Insured lives and remains so confined, provided such confinement is recommended by a currently licensed physician or surgeon.
DEFINITIONS AND EXCEPTIONS
This certificate does not cover: (1) suicide or any attempt thereat (while sane or insane); or (2) injury sustained by war or any act of war (declared or undeclared) or while engaged in military or naval service, in time of war (declared or undeclared); or (3) confinement in any hospital or convalescent facility contracted for or operated by the United States Government or its Veterans Administration; or (4) injury incurred due to the Insured being under the influence of any intoxicant or narcotic (except as prescribed by a physician)____ (Emphasis added.)

Where a provision of an insurance policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. See Mohn v. American Casualty Co. of Reading, 458 Pa. 576, 326 A.2d 346 (1974). Where the language of the insurance policy is clear and unambiguous, however, the courts may not ignore that clear language and construe the contract against the insurer. See Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983), and Pennsylvania Manufacturers’ Ass’n Insurance Co. v. Aetna Casualty & Surety Co., 426 Pa. 453, 233 A.2d 548 (1967).

We find no ambiguity in the insurance policy in the case before us. Although the policy itself does not define the word “injury”, we find that it must be construed to include death, which is merely one kind of injury, a fatal injury. We would hardly find that a disfiguring injury or a disabling injury was not covered simply because the word “injury” was not specifically defined to include those types of injury. In addition, we note that section 103 of the Pennsylvania No-fault Motor Vehicle Insurance Act (hereinafter referred to the Act) defines “Injury” as “accidentally sustained bodily harm ... or death resulting therefrom.” One of the purposes of the Act is to promote “uniformity as to the essential elements of the system of motor vehicle accident and insurance law to avoid confusion, complexity, uncertainty, and chaos which would be engendered by a multiplicity of noncomplementary systems.” Section 102(a)(8). In the case before us, finding that the term “injury” includes fatal injury results in consistency with the Act, and therefore promotes its stated purposes.

The certificate of coverage previously quoted clearly excludes coverage under the facts of this case. Even our examination of the master policy and the brochure does not lead to a contrary conclusion. We therefore find that the trial court erred in entering judgment in favor of appellee.

Judgment reversed, and case remanded to the trial court for entry of judgment in favor of appellant. Jurisdiction relinquished.


author: ROWLEY, Judge: OLSZEWSKI, Judge,

text:
    502 A.2d 241
    COMMONWEALTH of Pennsylvania, Appellant, v. Jack MAGNELLI.
    Superior Court of Pennsylvania.
    Submitted June 18, 1985.
    Filed Dec. 20, 1985.

      Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.

      August J. Costanzo, Pittsburgh, for appellee.
    Before ROWLEY, OLSZEWSKI and DEL SOLE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

Appellee was convicted by a jury of aggravated assault and obstructing administration of law or other governmental function. The trial court arrested judgment on the aggravated assault conviction and the Commonwealth has appealed from that Order.

In alleging that the trial court erred, the Commonwealth presents two arguments. First, the Commonwealth argues that there was sufficient evidence to support a finding that the victim sustained serious bodily injury. Second, the Commonwealth argues that the trial court erred when it found that the Commonwealth failed to prove the element of specific intent because specific intent need not be proved when serious bodily injury has actually been inflicted.

Appellee has not presented a brief to this Court.

The trial court granted appellee’s motion in arrest of judgment because “the actions of [appellee], under the circumstances, did not measure up to an attempt to cause serious bodily injury under circumstances manifesting an extreme indifference to the value of human life.” Trial court’s opinion at 5-6 (emphasis in original). The trial court analogized appellee’s act to an isolated shove, or the act of throwing someone to the ground and found that the connection between the officer’s injuries and appellee’s “acts is so attenuated that this court feels that the result was in no way within the intent or contemplation of [appellee].” Id. at 6.

In reviewing the trial court’s order
we must examine all the evidence in the light most favorable to the Commonwealth as verdict winner. Com monwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977). The standard used in our evaluation is ‘[w]hether accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed the jury could properly have based its verdict; it would be nonetheless insufficient in law to find beyond a reasonable doubt that the appellee is guilty of the crime charged.’ Commonwealth v. Froelich, 458 Pa. 104, 106, 326 A.2d 364, 365 (1974).

Commonwealth v. Pandolfo, 300 Pa.Super. 447, 448-449, 446 A.2d 939, 940 (1982) (citations omitted). In reaching its conclusion, the trial court assumed, for purposes of its opinion, that the victim’s injuries amounted to “serious bodily injury” as defined under 18 Pa.Cons.Stat. § 2301. Id. at 5.

The record reveals that on May 17, 1982, Sharpsburg Borough Police Officers Rudzki and Lang responded to a reported domestic disturbance at 920 Penn Street in Sharps-burg. (R.R. 36A.) Upon arriving at the scene, the officers confronted Anthony Magnelli, Jr., appellee’s brother and co-defendant, as he exited from the residence to which the officers had been directed. Anthony swore at the officers, challenged them to fight him, and swung his fist at Officer Rudzki, who ducked. (R.R. 91A-92A.) Anthony then ran across the street in front of the residence; as he ran, his father came up the street and, in an attempt to restrain his son, forced him to the ground adjacent to concrete steps that led to a nearby residence.

The officers approached the Magnellis and informed Anthony that he was under arrest for disorderly conduct. (R.R. 40A.) While Anthony’s father sat on Anthony’s legs, the officers kneeled on either side of Anthony and attempted to handcuff him. A scuffle ensued during which Anthony gained control of Officer Rudzki's nightstick and began to flail it at the officers. As the officers crouched over Anthony, appellee came up from behind Officer Rudzki, grabbed the officer by his shirt and pants, picked him up, and threw him forward and into the nearby concrete steps. The officer struck the steps with his right collar bone.

Appellee fled across the street and Officer Rudzki called out to another officer who had just arrived on the scene, “Mike, grab him. That is the man who pushed me.” (R.R. 44A.) After a short chase, appellee was apprehended and placed under arrest. (R.R. 110A.)

As a result of the incident, Officer Rudzki suffered a fractured collar bone which required surgery and the insertion of a pin in order to properly set the fracture. (R.R. 191, 196A.) The officer underwent physical therapy for approximately 5 weeks and missed work for approximately 4 months. From the time of the injury until treatment was completed, he was substantially unable to use his right arm. (R.R. 52A, 199A.)

Where an attempt is made to commit aggravated assault, or where the victim does not sustain serious bodily injury, the Commonwealth is required to prove specific intent. Commonwealth v. Grassmyer, 266 Pa.Super. 11, 16 n. 1, 402 A.2d 1052, 1054 n. 1 (1979). However, where serious bodily injury is inflicted, the Commonwealth is not required to prove a specific intent; this is because aggravated assault may be proven if the defendant acted recklessly. Id.; 18 Pa.Cons.Stat. § 2702. In the present case, it is conceded that serious bodily injury was inflicted. Trial court’s opinion at 5. Thus, we need not address the Commonwealth’s first argument.

As to the Commonwealth’s second argument, we disagree with its characterization of the trial court’s finding. The trial court emphasized that it arrested judgment because the Commonwealth had failed to produce sufficient evidence that appellee acted “under circumstances manifesting an extreme indifference to the value of human life.” Trial court’s opinion at 6 (emphasis in original). Although the trial court’s opinion does contain references to “intent,” the trial court does not base its Order upon a finding that there was insufficient evidence of appellee’s “specific intent”; and, we do not find that the record compels us to infer otherwise. In ruling as it did, the trial court only found that there was insufficient evidence from which the finder of fact could infer the requisite state of mind.

Having reviewed the record, we agree with the trial court that the evidence was insufficient to establish that appellee acted recklessly under circumstances manifesting an extreme indifference to the value of human life. Therefore, we affirm.

Order affirmed.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent from the majority’s decision to affirm the lower court. I would reverse the arrest of judgment and reinstate the jury verdict of guilty on the charge of aggravated assault.

A careful review of both the record and the appropriate laws lends support for a conviction of aggravated assault. As correctly stated by the majority, when an attempt is made to commit aggravated assault, or where the victim does not sustain serious bodily injury, specific intent must be proven to support a conviction. If serious bodily injury is inflicted, then specific intent is not the requisite element the Commonwealth must prove, recklessness is. Since serious bodily injury was conceded, the evidence must only establish recklessness. I believe it does.

The facts, as summarized by the majority, clearly show an unwarranted attack causing severe injuries. There was repeated testimony as to the smallness of the area in which the entire incident took place. It was inevitable that there would be an injury even if someone was merely pushed or shoved. Throwing a person into nearby concrete steps is most certainly going to result in serious injuries. Given the totality of the circumstances, I find the facts sufficient to satisfy the conviction. Appellee was indifferent to the consequences of his actions, thus rendering his actions reckless.

In light of the foregoing analysis, I would reverse the lower court’s arrest of judgment.

        . 18 Pa.Cons.Stat. § 2702(a)(1).

      . 18 Pa.Cons.Stat. § 5101.


author: WIEAND, Judge: CIRILLO, Judge,

text:
    502 A.2d 244
    Ronald A. PHILLIPS, a minor, by his parents and natural guardians, Charles G. PHILLIPS and Dianne Phillips, his wife, Appellant, v. NATIONWIDE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 6, 1985.
    Filed Dec. 20, 1985.

      William J. McCormick, Bentleyville, for appellant.
    Timothy D. Appelbe, Pittsburgh, for appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, ROWLEY, WIEAND, CIRILLO, OLSZEWSKI, BECK and TAMILIA, JJ.
   WIEAND, Judge:

Ronald A. Phillips, a fifteen year old youth, sustained personal injuries when the Honda XR-80 trail bike which he had been driving collided with a truck on a public road in the Borough of Centerville, Washington County. An action to recover benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act was commenced against Nationwide Insurance Company, which had issued a policy of automobile insurance to Phillips’ parents. The trial court sustained preliminary objections in the nature of a demurrer and dismissed the complaint. Phillips appealed. We reverse.

In concluding that appellants had failed to state a cause of action, the trial court determined that the trail bike, which Phillips had been operating, was not a motor vehicle within the meaning of the No-fault Act. With this we agree. See: Siefert v. Nationwide Insurance, 289 Pa.Super. 160, 432 A.2d 1101 (1981). See also: Bills v. Nationwide Mutual Insurance Co., 317 Pa.Super. 188, 463 A.2d 1148 (1983) (dune buggy). Having concluded that the trail bike was not a motor vehicle, the trial court reasoned that Phillips had not suffered injury “arising out of the maintenance or use of a motor vehicle.” With this we disagree. What the trial court overlooked was that Phillips’ trail bike had been involved in a collision with a truck. The truck was a motor vehicle. Therefore, Phillips’ injuries did arise from the use of a motor vehicle, i.e., the truck.

To the extent that a contrary result receives support from the decision of a panel of this court in Bindernagel v. Nationwide Mutual Automobile Insurance Co., 335 Pa.Super. 419, 484 A.2d 773 (1984), that decision is overruled. We follow, rather, the decision of the court en banc filed of even date herewith in Pistorius v. Travelers Insurance Co., 348 Pa.Super. 527, 502 A.2d 670 (1985).

In Pistorius, the operator of a trail bike died as a result of injuries received when his bike came into collision with a licensed motor vehicle. We held that his administratrix was entitled to recover no-fault benefits. The trail bike which the decedent had been riding was a recreational vehicle, not subject to licensing under the Motor Vehicle Code. Therefore, it was not a motor vehicle. In turn, it could not be a motorcycle. Because the rider had been injured in a collision involving his recreational vehicle and a licensed motor vehicle, the applicable insurance carrier was liable for no-fault benefits. The decision in Pistorius is controlling of the instant appeal.

Reversed and remanded. Jurisdiction is not retained.

GRILLO, J., files a dissenting opinion in which OLSZEW-SKI and TAMILIA, JJ., join.

CIRILLO, Judge,

dissenting:

For the reasons set forth in my dissent in Pistorius v. Travelers Insurance Co., 348 Pa.Super. 527, 502 A.2d 670 (1985), filed even date herewith, I respectfully disagree that the injury arose out of the “maintenance or use of a motor vehicle.” I would affirm the order of the trial court.

OLSZEWSKI and TAMILIA, JJ., join this dissenting opinion.

      . Act of July 19, 1974, P.L. 489, as amended, 40 P.S. §§ 1009.101 et seq. The statute was repealed by the Act of February 12, 1984, P.L. 26, § 8(a) (effective October 1, 1984).

      . The action was commenced on behalf of the minor by his parents and natural guardians, Charles G. and Dianne Phillips.

      . This language appears in Section 103 of the No-fault Act, 40 P.S. § 1009.103.


author:
WIEAND, Judge:
      SPAETH, President Judge,

text:
    502 A.2d 246
    COMMONWEALTH of Pennsylvania, Appellee, v. Michael Edwin JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 13, 1985.
    Filed Dec. 20, 1985.

      Richard E. Bower, Assistant Public Defender, Uniontown, for appellant.
    Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

In this appeal from a sentence of imprisonment imposed following convictions for robbery, theft and criminal conspiracy, Michael Edwin Johnson’s principal contention is that he was not tried within the time constraints of Pa.R.Crim.P. 1100(e)(1). Finding no merit in this contention or in any of the arguments advanced by appellant for a new trial, we affirm.

Johnson was arrested on January 4, 1983. His trial began on August 1, 1983. However, on August 2, 1983, a mistrial was declared because the jury was unable to agree upon a verdict. On December 20, 1983, after hearing, the trial court granted a timely request by the Commonwealth for an extension of time under Rule 1100 because the victim, Lyle Reynolds, had been ill and unavailable for trial when the case had been scheduled for trial in November. On February 21, 1984, another extension was granted because the victim was still ill. On March 6 and 7, 1984, within the extension allowed by the court, appellant was tried by jury and convicted.

Appellant argues that the trial court erred in granting the several Commonwealth requests for extensions. He contends that at both hearings the court improperly allowed hearsay evidence of the victim’s illness. In the absence of this hearsay, he suggests, the Commonwealth failed to prove that it was unable to commence trial within the prescribed period by the exercise of due diligence.

At the first extension hearing, Trooper James Anthony was the only witness to testify. He testified that he had been in contact with the victim, Lyle Reynolds, and had been told that he was ill and could not appear for trial. (N.T. 12/20/83 at 2, 4). Trooper Anthony testified that he had also gone to the office of Reynolds’ physician and had obtained letters, signed by the doctor, confirming that Reynolds was ill and could not appear for trial. Defense counsel objected to this testimony on grounds that it was hearsay. (N.T. 12/20/83 at 3). The court allowed Trooper Anthony to testify to what the letters said and admitted the letters into evidence as business records. (N.T. 12/20/83 at 5-6, 7). Appellant argues that Trooper Anthony’s testimony and the doctor’s letters were hearsay and should not have been received.

At the second hearing, Trooper Anthony testified that he had again spoken to Reynolds, who told him that he was still ill and unable to attend a trial. The trooper testified that he again went to the doctor’s office and obtained a letter, signed by the doctor, stating that Reynolds was ill and unable to appear. This time the court ruled that the letter was inadmissible as hearsay. (N.T. 2/21/84 at 6). Nevertheless, the extension was granted.

The Commonwealth had the burden of proving the-exercise of due diligence by a preponderance of the evidence. See: Commonwealth v. Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979); Commonwealth v. Bulling, 331 Pa.Super. 84, 90, 480 A.2d 254, 257 (1984); Commonwealth v. Lamb, 309 Pa.Super. 415, 423, 455 A.2d 678, 682 (1983).

[T]he due diligence required of the prosecutor by Rule 1100 has been interpreted to mean that the Commonwealth must exert reasonable efforts to provide for the trial to commence within [the prescribed period]. “The test in determining whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances.”

Commonwealth v. Dancy, 317 Pa.Super. 578, 582, 464 A.2d 473, 475 (1983), quoting Commonwealth v. Wroten, 305 Pa.Super. 340, 345, 451 A.2d 678, 681 (1982) (emphasis in original). See also: Commonwealth v. Tann, 298 Pa.Super. 505, 507-508, 444 A.2d 1297, 1298 (1982); Commonwealth v. Long, 288 Pa.Super. 414, 419, 432 A.2d 228, 231 (1981).

Appellant is correct when he argues that the letters from the doctor were inadmissible to prove the truth of the facts recited therein. Writing letters to district attorneys is not a part of the ordinary course of a physician’s business. Therefore, the letters in question did not qualify as business records and should not have been received as substantive evidence of the victim’s illness. See: 42 Pa.C.S. § 6108. Cf. Commonwealth v. Garcia, 478 Pa. 406, 426, 387 A.2d 46, 56 (1978) (letter written by superintendent of mental hospital to court not a business record because writing letters to judges not done by hospital in ordinary course of business).

However, the issue in this case was not primarily the truth of the victim’s assertion and the doctor’s confirmation that the victim had been ill but whether the Commonwealth had exercised due diligence to commence trial within the time allowed by Rule 1100. With respect to this issue, it was relevant and proper to show that Trooper Anthony had attempted to have Reynolds present for trial and had been told both by Reynolds and his physician that Reynolds could not testify at trial because of illness. The statements made by Reynolds and his physician were admissible, not to show the truth of the statements made but to show that the Commonwealth had exercised due diligence. The statements were admissible to show that the Commonwealth had been unable to produce Reynolds for trial within 120 days after the prior trial had ended in a mistrial. Even if the facts recited by the witness and by his physician had been incorrect or even untrue, the witness’ statement and the physician’s letter were relevant to show that the Commonwealth’s failure to commence trial in a timely manner was not attributable to a failure to exercise due diligence.

By the use of this evidence, the Commonwealth was able to prove that it could not commence trial within 120 days despite its exercise of due diligence. Its efforts to have the victim, an essential witness, present for trial were prevented by his statement that he was ill and could not appear. The Commonwealth did not rest upon the assertion of the witness, however, but went to the witness’ physician in order to verify such illness. Only after confirmation by the witness’ physician did the Commonwealth seek an extension of time within which to commence trial. The trial court, on the basis of this evidence, could properly grant the several Commonwealth requests for extensions. The Commonwealth’s failure to issue a subpoena for Reynolds after he had alleged illness did not, in view of the circumstances of this case, suggest a lack of due diligence. See: Commonwealth v. Dancy, supra 317 Pa.Super. at 585, 464 A.2d at 477.

Appellant argues that even if Reynolds had been unavailable for trial, trial should have proceeded. Reynolds was not an essential witness, appellant argues, because the Commonwealth, in the event of his unavailability, could have used a transcript of the testimony which he gave at the first trial. The standard of due diligence, however, requires only that reasonable efforts be used by the Commonwealth to commence trial within the time allowed therefor. Numerous decisions have held that when witnesses become unavailable toward the end of the Rule 1100 period — whether because of illness, vacation or some other reason — the Commonwealth is entitled to an extension. See: Commonwealth v. Burke, 344 Pa.Super. 288, 496 A.2d 799 (1985); Commonwealth v. Williams, 317 Pa.Super. 456, 464 A.2d 411 (1983); Commonwealth v. Williams, 310 Pa.Super. 501, 456 A.2d 1047 (1983); Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981); Commonwealth v. Sinor, 264 Pa.Super. 178, 183-184 n. 5, 399 A.2d 724, 727-728 n. 5 (1979). Rule 1100 was not intended to require the Commonwealth to exercise extraordinary efforts to commence trial within the time constraints of Rule 1100. The standard is reasonable diligence. The Commonwealth’s evidence showed that trial was not commenced because of the witness’ representation that he was ill. This had been confirmed by his physician. Under these circumstances, the Commonwealth’s decision to wait until the witness could appear personally and testify in the presence of the jury was not equivalent to a lack of due diligence. Rule 1100, the Supreme Court has said, “ ‘ “serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society.” Commonwealth v. Brocklehurst, 491 Pa. 151, [153— 154], 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972)____ The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.’ ” Commonwealth v. Crowley, 502 Pa. 393, 399, 466 A.2d 1009, 1012 (1983), quoting Commonwealth v. Genovese, 493 Pa. 65, 69-70, 425 A.2d 367, 369-370 (1981). See also: Commonwealth v. Hamm, 325 Pa.Super. 401, 416, 473 A.2d 128, 136 (1984). Because the Commonwealth’s inability to begin trial within 120 days of the prior mistrial was not caused by a lack of due diligence on the part of the Commonwealth, the trial court could properly extend the time for trial.

The judgment of sentence is affirmed.

SPAETH, President Judge, files a concurring and dissenting opinion.

SPAETH, President Judge,

concurring and dissenting:

I agree with the majority’s disposition of the Rule 1100 issue, but I believe that a new trial should be ordered because of the prosecutor’s misconduct.

In the course of the prosecutor’s summation, the following occurred:

MR. ZEGLEN: They have been found guilty in any event.
However, I cannot pick and choose my witnesses. Sure, I would like to have law-abiding citizens as witnesses. The problem is that crimes usually aren’t committed in front of law-abiding citizens. It is other criminals who see crimes committed. They are the ones who see the crimes. Robert Ahlborn and Scott Dunn, they are criminals. They have lied. The defendant, Michael Johnson, is their friend. What does that tell you about Michael Johnson? Ask yourselves that. Who do criminals associate with?
MR. BOWER: Objection.
THE COURT: Objection sustained. The jury will disregard that last statement.
MR. BOWER: Your Honor, may we approach the bench?
THE COURT: You may.
SIDEBAR DISCUSSION HELD ON THE RECORD
MR. BOWER: Your Honor, at this time, I think that is extremely prejudicial, and I would like a mistrial based on prosecutorial misconduct.
THE COURT: The Court does not feel that it is that prejudicial and with our cautionary instructions, we do not think that the motion is a proper motion, and we refuse it.
MR. BOWER: Thank you, Your Honor.
END OF SIDEBAR DISCUSSION
MR. BOWER: Your Honor, may we have a more explicit cautionary instruction on that?
THE COURT: I believe our instruction is sufficient.

N.T. 100-101.

The trial court acknowledges that these remarks “were improper and should not have been made,” Slip Op. at 8, but goes on to say that they were not prejudicial, and that in any event, the court’s cautionary instruction “cure[d] the impropriety,” id. To the contrary, as defense counsel properly argued to the court, see quotation supra, and argues to us, Brief for Appellant at 27, the remarks were “extremely prejudicial.”

Where prosecutorial misconduct is claimed, we must “determine whether the unavoidable effect of the contested comments was to prejudice the jury, forming in their minds fixed bias and hostility towards the accused so as to hinder an objective weighing of the evidence and impede the rendering of a true verdict.” Commonwealth v. Brown, 489 Pa. 285, 297, 414 A.2d 70, 76 (1980); Commonwealth v. McNeal, 456 Pa. 394, 319 A.2d 669 (1974); Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973). If the comments are found prejudicial, a new trial is required. Commonwealth v. Gilman, 470 Pa. 179, 192, 368 A.2d 253, 259 (1977).

It has consistently been held that the prosecutor must limit his remarks to the facts in evidence and to legitimate inferences from those facts. Commonwealth v. Revty, 448 Pa. 512, 516, 295 A.2d 300, 302 (1972). He may not “interject his personal beliefs as to either the guilt of the defendant or the credibility of a witness nor may he argue from facts which may be within his personal knowledge but which are not of record.” Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976). Here, the prosecutor flagrantly violated these standards. Instead of relying on the evidence, he added the weight of his own assertion as counsel for the Commonwealth that the witnesses had “lied”; and instead of accepting the burden of proving the defendant’s guilt, he invited the jury to find guilt by association — an invitation incompatible with the most fundamental provisions of our system of justice.

“Prosecutorial misconduct in argument is of special concern because of the possibility that the jury will give special weight to the prosecutor’s arguments.” Commonwealth v. Kuebler, 484 Pa. 358, 399 A.2d 116, 118 (1979) (quoting American Bar Association Standards Relating to the Prosecution Function, § 5-8 Commentary). In Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974), it was held that the prosecutor’s allusions to the defendant and his alleged associates as “hoodlums” and “animals” required a new trial. “Such expressions of personal belief,” stated the court, “have no legitimate place in a district attorney’s argument.” Id., 455 Pa. at 528, 317 A.2d at 207. See also Commonwealth v. Joyner, supra, 469 Pa. at 338, 365 A.2d at 1235 (“Calling the present defendant the ‘leader of this pack of murderers,’ of course, is the same thing as calling him a murderer directly; and if a murderer, then guilty.”). See generally Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975) (“a prosecuting attorney may not indulge in personal assertions of guilt of a defendant either by direct statement or indirectly by figure of speech”).

As for the trial court’s cautionary instruction: when a prosecutor makes remarks as egregious as those made here, the trial court should respond with a much firmer admonition than simply saying that “[t]he jury will disregard that last statement.” So mild and general an instruction is likely to be understood by the jury as meaning that nothing very much wrong was said. In addition, and more important, the court’s instruction was so incomplete as to be misleading. The court only instructed the jury to “disregard that last statement.” The prosecutor, however, had made several statements, all improper. His “last statement” was, “Ask yourselves that. Who do criminals associate with?” Under the court’s instruction the jury was free to consider as proper argument the prosecutor’s other statements: that Ahlborn and Scott “are criminals. They have lied. The defendant, Michael Johnson, is their friend.” Finally, it should be noted that defense counsel expressly requested “a more explicit cautionary instruction”, see quotation supra, but the court refused, id.

I submit that neither this court nor a trial court does service to the cause of justice by condoning such unprofessional argument as occurred here. We should order a new trial.

      . These arguments are that the verdict was against the weight of the evidence; that the trial court erred in permitting rebuttal evidence to contradict appellant’s testimony; that the prosecutor was guilty of misconduct; and that the trial court’s jury instructions contained error. They have been fully discussed and correctly decided by the trial court and require no further discussion in this opinion.


author: BLOOM, Senior Judge:

text:
    502 A.2d 251
    CENTERRE BANK OF KANSAS CITY, N.A., Credit Lyonnais, European-American Bank & Trust Co., Mellon Bank, N.A., Mercantile National Bank at Dallas, and Security Pacific National Bank v. ARTHUR YOUNG & COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 26, 1985.
    Filed Dec. 27, 1985.

      James D. Morton and Ronald W. Crouch, Pittsburgh, for appellant.
    Samuel H. Elkin, Pittsburgh, for appellees.
    Before MONTEMURO, ROBERTS, BLOOM, JJ.

       The Honorable Louis A. Bloom, Senior Judge, of the Court of Common Pleas of Delaware County, Pennsylvania is sitting by designation.

   BLOOM, Senior Judge:

This is an appeal from an order denying preliminary objections based upon forum non conveniens.

Plaintiffs, five American banks and one French bank, instituted a suit in trespass against Arthur Young & Co. (“Arthur Young”), a nationally recognized CPA firm, and alleged that Arthur Young was negligent in the performance of certain audits of International Systems and Controls Corporations (“ISC”) and that plaintiffs suffered damage by relying on said audits in deciding to make certain loans to ISC. Arthur Young filed preliminary objections raising the doctrine of forum non conveniens, a demurrer based on lack of privity between itself and the plaintiffs, failure to join an indispensable party, and absence of damages to the plaintiffs. On August 24, 1984, the trial court denied the petition to transfer, dismissed the demurrer, and granted appellant twenty days to file an answer.

On August 31, 1984, Arthur Young petitioned the trial court to amend its order pursuant to Pa.R.A.P. 311(b)(2), 312 and 1311 to state that the preliminary objections founded upon forum non conveniens and upon lack of privity were legal issues as to which there is a substantial ground for difference of opinion and an immediate appeal may materially advance the ultimate termination of this matter, and that the preliminary objections founded upon forum non conveniens present substantial issues of jurisdiction. On September 12, 1984, while the petition to amend was pending, Arthur Young filed the present appeal from that part of the trial court’s order denying Arthur Young’s preliminary objections based on forum non conveniens. The appeal states Arthur Young’s position that the trial court’s order was final and appealable pursuant to Pa.R.A.P. 341 and sets forth two substantive arguments in support of transferring the case.

Thereafter, appellee banks filed a Motion to Quash the appeal on the basis that the trial court’s order sustaining venue was an interlocutory order which was not appealable as of right. Appellant then filed an Answer to the Motion to Quash. On March 19, 1985, the Motion to Quash was denied without prejudice to argue the issue before the panel. In the interim, on December 20, 1984, the trial court denied Arthur Young’s Motion to Amend the Order of August 24, 1984. Also in the interim, on January 17, 1985 appellant filed a petition for review in connection with the trial court’s denial of appellant’s Motion to Amend the order to certify the lack of privity issue for appeal. This motion remains unresolved.

In light of this case’s procedural history, we cannot consider the merits of the arguments in favor of transferring this case until we address the appealability of the order in question. Appellant cites several cases for the proposition that an appeal from an order denying preliminary objections based on forum non conveniens is a final, appeal-able order. Caplan v. Keystone Weaving Mills, Inc., 431 Pa. 407, 410, 246 A.2d 384, 386 (1968); Daugherty v. Island Tugs, 240 Pa.Super. 527, 529, 359 A.2d 465, 466 (1976); Norman v. Norfolk & Western Railyard Co., 228 Pa.Super. 319, 322 n. 3, 323 A.2d 850, 851 n. 3 (1974). These cases, however, pre-date Pa.R.A.P. 311. See Lyons v. Bechtel Corp., 294 Pa.Super. 596, 598 n. 2, 440 A.2d 625, 626, n. 2 (1982), noting that the appealability of orders dismissing a litigant’s preliminary objections predicated upon forum non conveniens is now governed by Rule 311.

Rule 311(c) provides that an appeal may be taken as of right from an order “changing venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles.” Since the trial court in this case did not “decline to proceed in the matter on the basis of forum non conveniens/’ Rule 311(c) is inapplicable. See United Erectors v. Pratt & Lambert Corp., 338 Pa.Super. 577, 488 A.2d 43 (1985) (Unambigous language of Rule 311(c) and comments thereto make plain that it applies only to lower court orders which do not sustain venue).

Moreover, Rule 311(b) which permits amappeal as of right from orders sustaining venue or personal or in rem jurisdiction is silent regarding the issue of forum non conve-niens. Contrasted with the specific mention of the doctrine of forum non conveniens in Rule 311(c), such omission appears to be deliberate. Absent the inclusion of forum non conveniens as a basis for an appeal as of right, the appealability of the instant order pursuant to Rule 311(b) is not clear. However, even if Rule 311(b) were construed as encompassing the doctrine of forum non conveniens, the fact remains that neither of the requirements of election or certification set forth in subsection (1) and (2) of Rule 311(b) have been met. See United Erectors v. Pratt & Lambert Corp., supra, (Where neither requirements of Pa.R.A.P. 311(c) is met, order denying appellant’s preliminary objections challenging jurisdiction is not appealable). Accordingly, we are obliged to quash this appeal as it is interlocutory.

Appeal quashed.

The petition for review is denied.


author: BECK, Judge:

text:
    502 A.2d 253
    COMMONWEALTH of Pennsylvania v. Robert BALDWIN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 26, 1985.
    Decided Dec. 6, 1985.

      Joseph B. Vanwyk, Media, for appellant.
    Dennis C. McAndrews, Assistant District Attorney, Wayne, for Com., appellee.
    Before BECK, POPOVICH and TROMMER, JJ.

       Judge Evelyn R. Trommer, Senior Judge of the Court of Common Pleas of Philadelphia, is sitting by designation.

   BECK, Judge:

Appellant Robert Baldwin appeals from judgment of sentence entered on convictions of rape, incest and corrupting the morals of a child. The charges arose out of a course of conduct in which appellant forced his teenage daughter to engage in intercourse and other sexual activity with him. Baldwin raises the following issues on appeal:

(1) The trial court erred in allowing the Commonwealth to call as an expert witness a social worker who had coun: seled the victim and who testified concerning patterns of intrafamilial sexual abuse;
(2) Appellant was denied a fair trial by the Commonwealth’s withholding of exculpatory evidence despite appellant’s requests for disclosure;
(3) Trial counsel was ineffective for not attempting to present to the jury evidence of sexual activity between the victim and her stepbrother to explain away the social worker’s testimony and/or to utilize such evidence to argue that the social worker’s testimony should not be admitted; and
(4) An evidentiary hearing is necessary to determine whether counsel was ineffective for failing to subpoena and review certain agency records, failing to recall certain Commonwealth witnesses for further cross-examination, failing to interview certain other witnesses and failing to accept a mistrial offered by the trial court.

We affirm. The trial court’s opinion at pp. 8-12 adequately addresses appellant’s issue (2). We therefore address only issues (1), (3) and (4) in this opinion.

Social Worker’s Testimony

At trial the Commonwealth called as an expert witness Ralph Battinieri, a social worker with the Delaware County Department of Children and Youth Services (“CYS”). Bat-tinieri had counseled the victim after she had left her home and reported the incidents of abuse, but he did not testify specifically about the victim herself or his work with her. Rather, his direct testimony was framed in general terms and was intended to explain the dynamics of intra-family sexual abuse and the behavior patterns of the victims. Battinieri testified regarding the effects of the incestuous relationship on the victim’s self-esteem, the psychological forces which cause the victim to keep the incest a secret for a long time, and why victims are often unable to recall exact dates or times or describe specific incidents in detail.

On appeal, appellant does not challenge Battinieri’s qualifications in the field of child sexual abuse. Rather, appellant argues first that the evidence is irrelevant and secondly that Mr. Battinieri effectively testified that the victim was a credible witness, thereby usurping the jury’s credibility-determining function and prejudicially labeling the witness as an incest victim. The Commonwealth contends that Battini-eri did not refer to the victim herself as an incest victim or comment on her credibility and that his testimony was relevant and properly admitted because it assisted the jury in understanding and evaluating the victim’s testimony.

We agree with the Commonwealth and hold that the testimony of a properly qualified expert concerning the psychological dynamics of incest and the behavioral patterns of incest victims is admissible in prosecutions for incest and/or related crimes because the evidence is relevant and is a proper subject for expert testimony.

Appellant’s two grounds of objection to Battinieri’s testimony are somewhat inconsistent. On the one hand, appellant argues that the evidence is irrelevant because it consisted of generalizations about victim behavior which did not bear on the particular factual allegations of the instant case. On the other hand, in contending that the social worker impermissibly usurped the jury’s credibility-assessing role, appellant is not claiming that the evidence is irrelevant, but rather that it is in a sense too relevant, because it prejudices the jury’s resolution of an undeniably material issue, the victim’s credibility.

“Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue or when it in some degree advances the inquiry and thus has probative value.” Commonwealth v. Shain, 324 Pa.Super. 456, 462, 471 A.2d 1246, 1249 (1984). Under this standard there can be no question that Battinieri’s expert testimony is relevant. The evidence does tend to make material facts more probable and advance the inquiry because the jury can infer that the gaps and inconsistencies in the victim’s testimony stem from the psychological dynamics of incest rather than from any fabrication or fantasy. We believe the real issue here is whether the evidence, although relevant, is prejudicial because it is an improper comment on credibility or not a proper subject for expert testimony.

The admissibility of expert testimony on the dynamics of child sexual abuse and the behavioral patterns of victims has been addressed only peripherally by our courts. In Commonwealth v. Stago, 267 Pa.Super. 90, 406 A.2d 533 (1979), the defendant was convicted of rape, incest and other offenses on evidence that he sexually abused his daughter. Noting that the defendant “contended] that the court erred in allowing [the victim’s] treating psychologist to give his opinion of [her] credibility,” this Court held, “Our review of the record shows that the psychologist gave no such opinion; accordingly, this contention is without merit.” Id., 324 Pa.Superior Ct. at 96, 406 A.2d at 535. However, the opinion contains no further discussion of the issue and does not reveal the substance of the psychologist’s testimony beyond stating that he “testified that child-victims of incest frequently felt depressed, guilty and angry and required psychiatric care and hospitalization.” Id.

In Commonwealth v. Gaerttner, 335 Pa.Super. 203, 484 A.2d 92 (1984), also a case involving child sexual abuse, the victim was mentally retarded, and a clinical psychologist testified regarding her ability to fabricate a story and the way she perceived and remembered events. In deciding a claim that defense counsel was not ineffective for not challenging the competency of the complaining witness, we noted that “[t]he testimony goes not to the witness’ competency to testify but to her credibility as a witness,” id., 335 Pa.Superior Ct. at 215, 484 A.2d at 99, and there is no suggestion that the testimony was objectionable because it went to the victim’s credibility. However, in Gaerttner this Court was not asked to rule on the admissibility of the psychologist’s testimony, and in any case the psychologist’s testimony appears to be concerned with the victim’s retardation more than the effects of the sexual assault.

The courts of several other jurisdictions have considered the issue, though, and have held that expert testimony regarding the behavior patterns of child sexual abuse victims was properly admitted. See, e.g., People v. Dunna-hoo, 152 Cal.App.3d 561, 199 Cal.Rptr. 796 (1984); State v. Kim, 64 Haw. 598, 645 P.2d 1330 (1982); State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983); State v. Haseltine, 120 Wis.2d 92, 352 N.W.2d 673 (1984). Other courts have admitted similar expert testimony on “rape trauma syndrome” to assist the jury in understanding the dynamics of rape; see, e.g., State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982); State v. Staples, 120 N.H. 278, 415 A.2d 320 (1980). See also State v. Conlogue, 474 A.2d 167 (Me.1984) (expert testimony on “battered child syndrome” and patterns of child abuse within family admissible to impeach credibility of mother’s retraction of confession that she had abused her child); State v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984) (“battered woman syndrome” proper subject for expert testimony where issue was whether defendant wife could establish claim of self-defense in prosecution for killing husband).

The foregoing decisions support our conclusion that expert testimony such as that offered by Battinieri does not improperly invade the jury’s prerogative. As one commentator has noted:

The argument that such psychological testimony is prejudicial because it bears on the credibility of a witness, and thus invades the province of the jury, is simply wrong. Expert testimony cannot “invade the province of the jury” unless the jury is instructed that it must agree with the expert’s assessment.

T. Massaro, Experts, Psychology, Credibility and Rape at 443. Of course, no such instruction was given in this case. Neither did Battinieri expressly comment on the victim’s credibility. The fact that the jury, if it believes the expert’s testimony, may draw inferences which would tend to bolster the victim’s credibility does not make the evidence inadmissible. It is a commonplace fact that the testimony of one witness may tend to corroborate another. Far from being improper, this is normal and is good trial strategy. See Middleton, 294 Or. at 435, 657 P.2d at 1219 (“Much expert testimony will tend to show that another witness either is or is not telling the truth____ This, by itself, will not render evidence inadmissible”). In other words, so long as the expert does not render an opinion on the accuracy of the victim’s recitation of facts, his or her general testimony on the dynamics of sexual abuse does not prejudice the jury.

We also hold that the behavioral and psychological characteristics of child sexual abuse victims are proper subjects for expert testimony. Expert testimony is permitted as an aid to the jury “where the subject beyond the knowledge or experience of the average layman.” Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976). The trial court found that the reactions and behavior of a victim of incest are not matters of common knowledge and experience. We agree. The emotional trauma to which the child victim of sexual abuse has been subjected causes the victim to react and behave in a different manner from many other crime victims, expecially when the sexual abuse victim is forced to testify to the acts in open court. The child is likely to be reluctant to testify against the defendant who is a parent or other family member and indeed may be under the pressure from other members of the family to recant the allegations. The perpetrator of the abuse may also have used threats or other forms of coercion to enforce the secrecy of the relationship. Moreover, the abuse often begins at an early age and continues for a long period of time, so the child is likely to be relating events which occurred some time in the past and which the child may not have completely understood while they were happening.

Courts and commentators alike have observed that for these reasons child sexual abuse victims often have difficulty remembering dates and times or describing details of sexual acts, and are reluctant witnesses, sometimes refusing to testify or recanting prior allegations out of fear or coercion. See State v. Pettit, 66 Or.App. 575, 675 P.2d 183 (1984); State v. Middleton, supra; Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv.L.Rev. 806 (1985); Corroboration Requisite Seen Tilting the Scales Against Child Victims, The Washington Post, June 8, 1984, A16; J. Mann, Manhandled, The Washington Post, Jan. 11, 1984, Bl. In Middleton the Oregon court explained succinctly how this type of expert testimony assists the jury in understanding and evaluating the evidence:

If a complaining witness in a burglary trial, after making the initial report, denied several times before testifying at trial that the crime happened, the jury would have good reason to doubt seriously her credibility at any time. However, in this instance we are concerned with a child who states she has been the victim of sexual abuse by a member of her family. The experts testified that in this situation the young victim often feels guilty about testifying against someone she loves and wonders if she is doing the right thing in so testifying. It would be useful to the jury to know that not just the victim but many child victims are ambivalent about the forcefulness with which they want to pursue the complaint____ Explaining this superficially bizarre behavior by identifying its emotional antecedents could help the jury better assess the witness’s credibility.

Middleton, 294 Or. at 435-36, 657 P.2d at 1219-20. We therefore hold that the trial court did not err in admitting the expert testimony of Ralph Battinieri.

Ineffectiveness of Counsel — Victim’s Prior Sexual Activity

Appellant claims that trial counsel was ineffective for not making use of evidence that the victim engaged in sexual activity with her stepbrother. The gist of appellant’s argument appears to be that trial counsel should have offered this evidence either as an alternative explanation of the victim’s behavior patterns to which Mr. Battinieri testified or as a further reason why Mr. Battinieri’s testimony should not be admitted.

It is axiomatic that counsel will not be held ineffective for failing to assert a baseless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). We hold that appellant’s claim is meritless because the Rape Shield Law, 18 Pa.C.S. § 3104(a), bars the admission of evidence of prior sexual activity between the victim and the stepbrother. The. Rape Shield Law provides:

(a) General rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

Appellant argues that evidence of a sexual relationship between the victim and her stepbrother would nevertheless be admissible under Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985). In Black the defendant was accused of engaging in incestuous sexual activity with his daughter. The daughter first made the allegations of sexual abuse after violent arguments between her fifteen-year-old brother and the defendant culminated in the brother leaving the family home. The defendant sought to introduce evidence of an ongoing consensual sexual relationship between the daughter and her brother. The defendant contended that the admission of this evidence was necessary to reveal the daughter’s bias and motive to falsify, because it tended to show she had a reason to retaliate against her father for forcing her brother to leave home. This Court agreed, holding that the Confrontation Clause of the Sixth Amendment to the Constitution required that the Rape Shield Law not be used to exclude relevant evidence which tended to show the prosecuting witness’ bias or attack her credibility, so long as the probative value of such evidence was not outweighed by its prejudicial effects.

The proffered evidence in the instant case does not fall within the ambit of Black. There is simply no link between the alleged sexual activity with the stepbrother and any possible reason for the victim to be biased against appellant. There is no evidence that appellant attempted in any way to come between the victim and her stepbrother or that appellant even knew of any sexual contact between them. Appellant claims that the victim first accused him after her efforts to run away to Florida with her boyfriend (not the stepbrother) were thwarted. This sequence of events may indeed suggest a source of bias of the victim against appellant. However, we fail to see how evidence of unrelated sexual activity with the stepbrother is relevant to a claim that the victim was biased because appellant prevented her from running away to Florida with her boyfriend. Black does not allow the use of irrelevant evidence to show bias. Therefore we hold that counsel was not ineffective for failing to introduce this inadmissible evidence.

Moreover, as the Commonwealth correctly notes, the defense did call the stepbrother and elicited testimony from him to the effect that nothing untoward of sexual nature occurred in the Baldwin home. Appellant claims that this avenue was chosen "only ... after it became evident that defense counsel would not be permitted to explore the relationship between [the victim] and her stepbrother.” Supplemental Brief for Appellant at 4. However, the standard against which we measure counsel’s stewardship is not whether in hindsight other alternatives were available, but whether the course of action which was taken had a reasonable basis designed to effectuate the client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Clearly it was reasonable for trial counsel to elicit testimony from the stepbrother, whose bedroom adjoined that of the victim, that he knew of no unusual sexual activity in the home.

Ineffectiveness of Counsel — Miscellaneous Claims

Appellant urges that we remand for an evidentiary hearing to determine whether trial counsel was ineffective for a variety of reasons set forth in appellant’s assignment of error (4). Where it is clear from the record that allegations of ineffective assistance of counsel are meritless, we need not remand for an evidentiary hearing. Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984). We hold that the allegations of ineffectiveness in assignment of error (4) are demonstrably meritless without need for a remand.

Appellant claims counsel should have subpoenaed the victim’s CYS file prior to trial and should have recalled certain witnesses once the defense did gain access to the file. Appellant also claims trial counsel should have interviewed certain other witnesses and used them to impeach the victim’s credibility. These claims are little more than bare allegations. There is not even a preliminary showing or indication of what in the CYS file would have been helpful to appellant. Appellant also fails to show with any specificity how calling or recalling the various witnesses would have materially assisted his case. See Commonwealth v. Broadwater, 330 Pa.Super. 234, 246, 479 A.2d 526, 533 (1984) (defendant must support ineffectiveness claim based on failure to call witnesses with showing “that the missing testimony would have been helpful”). The defendant bears the burden of establishing his claim of ineffectiveness. Commonwealth v. Howard, 324 Pa.Super. 443, 471 A.2d 1239 (1984). “[M]ere allegations of ineffectiveness standing alone on direct appeal will not warrant an evidentiary hearing if this Court is not presented with facts sufficient to support the claim.” Commonwealth v. Cott-man, 327 Pa.Super. 453, 460, 476 A.2d 40, 43 (1984); see also Clemmons. Appellant failed to make the showing which would entitle him to an evidentiary hearing.

Finally, appellant’s claim that trial counsel was ineffective in refusing to accept a mistrial offered by the trial court is also meritless. When the jury indicated to the trial judge that it was having difficulty reaching a verdict, the judge discussed with counsel the possibility of granting a mistrial rather than sending the jury back for further deliberation. The record indicates, though, that appellant himself instructed counsel to tell the court that he did not desire a mistrial but rather wanted the jury to deliberate further. Since an acquittal is preferable to a “hung jury” mistrial after which appellant could be retried, it was surely reasonable to ask that the jury be allowed to deliberate further in the hope that the verdict would be not guilty. Therefore counsel’s effectiveness cannot be faulted.

Having found no reversible error we affirm the judgment of sentence.

      . On cross-examination, defense counsel questioned Battinieri in a way designed to elicit his views on how he would decide if a particular victim were telling the truth. Nevertheless, Battinieri refrained from expressing any opinions on the credibility of the particular victim in the instant case.

        . Contra, People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291 (1984), State v. Saldana, 324 N.W.2d 227 (Minn.1982). One commentator has observed that courts have generally been more receptive to this type of expert testimony in child sexual assault cases than in cases involving adult rape. See T. Massaro, Experts, Psychology, Credibility, and Rape: The Rape Trauma Syndrome Issue and Its Implications for Expert Psychological Testimony, 69 Minn.L.Rev. 395, 467 (1985) (hereinafter cited as Massaro, Experts, Psychology, Credibility, and Rape ).

      . In State v. Kim, the Hawaii court permitted the psychiatrist to testify whether he believed the child victim. We need not decide in this case whether such testimony would be admissible.

      . In Middleton, unlike the instant case, the expert was permitted to testify that the victim’s behavior fit the pattern. It is therefore even clearer in the instant case that the expert did not invade the province of the jury because all the inferences were left for the jury to draw. We do not decide whether it would be permissible in Pennsylvania for the expert to draw the inference of consistency on the stand as was done in Middleton.

      . Compare People v. Roscoe, 168 Cal.App.3d 1093, 215 Cal.Rptr. 45, 37 Crim.L.Rptr. 2259 (1985). In Roscoe, the prosecution called a clinical psychologist who “testiffied] in detail about the specific facts in the case at hand” and stated his opinion based in part on his analysis of those facts that the complainant was a victim of child molestation. The court ruled this testimony inadmissible, holding that it was distinguishable from opinion testimony based on the scientific literature and the expert’s experience with molestation victims in general. For example, the court stated, an expert could properly testify that “as a class victims of molestation typically make poor witnesses, and are reluctant to disclose or discuss the sordid episodes.”

      . Although both boys and girls are victims of child sexual abuse, a disproportionate number of the victims are female: "One in five females and one in eleven males are sexually victimized as children." Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv.L.Rev. 806 (1985), citing D. Finkelhor, Sexually Victimized Children 53 (1979).

      . We further note that trial counsel did call several of the witnesses listed as those who “could have been used to impeach the victim’s testimony by pointing out several inconsistencies in her testimony” (Appellant’s Brief at 34). Jenny Newlin, Walter Ruber Jr. and Bruce Brinton all testified at trial, and their testimony on many points was inconsistent with that of the victim. Other witnesses were called who testified in a similar vein. We therefore fail to see how trial counsel’s representation was deficient in this respect.

      . See, e.g., Commonwealth v. Mehmeti, 501 Pa. 589, 462 A.2d 657 (1983) ; Commonwealth v. Smith, 324 Pa.Super. 156, 471 A.2d 510 (1984) .


author: McEWEN, Judge: SPAETH, President Judge,

text:
    502 A.2d 260
    Douglas VANN, Appellant, v. The SCHOOL DISTRICT OF PHILADELPHIA, Appellee.
    Superior Court of Pennsylvania.
    Argued June 6, 1985.
    Decided Dec. 20, 1985.

      Edward R. Weiss, Philadelphia, for appellant.
    Martin Horowitz, Philadelphia, for appellee.
    Before SPAETH, President Judge, and McEWEN and BECK, JJ.
   McEWEN, Judge:

We here consider an appeal from an order which sustained the preliminary objections in the nature of a demurrer filed by appellee, School District of Philadelphia, on the grounds that appellant had failed to state a cause of action upon which relief could be granted. The scope of appellate review of a challenge to an order sustaining preliminary objections in the nature of a demurrer is, of course, well settled:

All material facts set forth in the complaint as well as all inferences reasonably deductible therefrom are admitted as true for [the purposes of this review.] Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960).

Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-1233 (1983). Accord Graham v. Today’s Spirit, 503 Pa. 52, 55-56 n. 1, 468 A.2d 454, 456 n. 1 (1983); Swidzinski v. Schultz, 342 Pa.Super. 422, 425, 493 A.2d 93, 95 (1985); Crivellaro v. Pennsylvania Power & Light Co., 341 Pa.Super. 173, 177-78, 491 A.2d 207, 209 (1985); LaZar v. RUR Industries, Inc., 337 Pa.Super. 445, 448-49, 487 A.2d 29, 31 (1985).

We, therefore, accept as true for the purposes of our review, that appellant was injured, while driving a school bus within the course and scope of his employment by appellee School District, as a result of a collision with a vehicle driven by an uninsured motorist. When appellant then sought uninsured motorist benefits from appellee, a self-insured entity, appellee refused to pay such benefits. Appellant filed a complaint in the Court of Common Pleas of Philadelphia County to which appellee filed preliminary objections alleging that appellant had failed to state a cause of action upon which relief could be granted. The preliminary objections were sustained and this appeal followed.

The sole issue for our consideration is whether the Workmen’s Compensation Act provides the exclusive remedy available to an employee, who, while operating his employer’s vehicle within the scope of his employment, is injured in an automobile accident involving an uninsured motorist; or whether the employee is entitled to collect from his employer, a self-insured entity, uninsured motorist benefits in addition to the Workmen’s Compensation payments. We conclude that such an employee is limited to the benefits available under the Workmen’s Compensation Act and may not recover, in addition thereto, uninsured motorist benefits from his employer.

The declaration of Section 303 of the Workmen’s Compensation Act is, once again in this appeal, the subject of our scrutiny:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.

77 P.S. § 481(a) (footnote deleted).

Appellant asserts that this provision does not bar his right to recover uninsured motorist benefits from his employer and invites our attention to several Pennsylvania cases in which employees were permitted to collect uninsured motorist benefits from their employers’ insurance carriers for injuries sustained while occupying their employers’ vehicles. See Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984); Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968); Flamini v. General Accident Fire and Life Assurance Corp., 328 Pa.Super. 406, 477 A.2d 508 (1984); Marchese v. Aetna Casualty and Surety Co., 284 Pa.Super. 579, 426 A.2d 646 (1981).

The precise issue which we must here decide was not, however, addressed in any of the cases cited by appellant. Utica Mutual Insurance Co. v. Contrisciane, supra; Flamini v. General Accident Fire and Life Assurance Corp., supra; and Marchese v. Aetna Casualty and Surety Co., supra, each concerned questions of stacking insurance policy coverage while Harleysville Mutual Casualty Co. v. Blumling, supra, involved a question concerning an “other insurance” provision in the uninsured motorist policy of the employer which purported to limit recovery because of the existence of other insurance coverage.

This Court has, however, recently and directly addressed this issue when we declared that: “the legislature has clearly indicated its intentions to exclude employees injured in the scope of their employment from both No-fault and •Uninsured Motorists’ benefits, leaving their only remedy the benefits under the Workmen’s Compensation Act.” Lewis v. School District of Philadelphia, 347 Pa.Super. 32, 500 A.2d 141 (1985). While our eminent President Judge Edmund B. Spaeth, Jr., provided in his dissent in Lewis a quite valid expression of view, the more compelling position is that expressed by the majority, namely, that the legislature signaled an intention to preclude an employee from collecting from his employer No-fault or Uninsured Motorist benefits in addition to Workmen’s Compensation benefits.

Accordingly, we affirm the Judgment of the distinguished Judge Ethan Allan Doty sustaining the preliminary objections in the nature of a demurrer by reason of the conclusion that Section 303 precludes the collection by appellant of Uninsured Motorist benefits from his employer.

Judgment affirmed.

SPAETH, President Judge, files a dissenting statement.

SPAETH, President Judge,

dissenting:

I dissent for the reasons I gave in my dissent in Lewis v. School District of Philadelphia, 347 Pa.Super. 32, 500 A.2d 141 (1985).

      . Act of December 5, 1974, P.L. 782, No. 263, as amended, 77 P.S. § 481(a).

      . See Act of August 14, 1963, P.L. 909, as amended December 19, 1968, P.L.--, No. 397, 40 P.S. § 2000.

      . This conclusion is to be distinguished from the well established ruling that an employee, injured in a motor vehicle accident, while operating his employer’s vehicle during the course of his employment, may recover, in addition to Workmen’s Compensation benefits, from his own No-fault Insurance carrier or the Pennsylvania Assigned Claims Plan any loss in excess of the amount covered by Workmen’s Compensation benefits. Wagner v. National Indemnity Co., 492 Pa. 154, 422 A.2d 1061 (1980); Harleysville Insurance Co. v. Wozniak, 347 Pa.Super. 356, 500 A.2d 872 (1985); Mumma v. Pennsylvania Assigned Claims Plan, 331 Pa.Super. 205, 480 A.2d 316 (1984).


text:
    502 A.2d 597
    COMMONWEALTH of Pennsylvania v. Joseph MARCHESANO, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Oct. 25, 1985.
    Reargument Denied Jan. 7, 1986.

      Dennis J. Cogan, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WATKINS and HOFFMAN, JJ.
   BROSKY, Judge:

This appeal is from the judgment of sentence imposed after the revocation of appellant’s probation. Appellant contends that he was denied his right to a speedy revocation hearing, and that trial counsel was ineffective for failing to assert that claim at the probation revocation hearing. We agree with appellant that trial counsel was ineffective and, for the reasons that follow, remand the case for an eviden-tiary hearing.

Appellant was sentenced to two years probation for burglary on June 3, 1982. On December 29,1983, in Montgomery County, appellant was arrested for and subsequently pled guilty to theft and simple assault. He was sentenced on May 5, 1984, to five years probation for the theft and two years probation for the simple assault.

On January 12,1984, again in Montgomery County, appellant was arrested for and subsequently pled guilty to robbery. He was sentenced to three and one-half to ten years incarceration for that crime on June 6, 1984.

The probation department apparently did not advise the court of these violations of its June 3, 1982 sentence of probation until September 10, 1984. A hearing was then scheduled for October 17, 1984, at which time appellant was not brought down from the State Correctional Institution at Dallas. The hearing was therefore continued until November 28, 1984, at which time appellant’s probation was revoked and a sentence of two to four years imprisonment was imposed. This appeal timely followed.

Appellant argues that his right to a speedy revocation hearing under Pa.R.Crim.P. 1409 was violated. The Commonwealth’s response to this claim is that it has been waived by appellant’s failure to raise it at the revocation hearing. For the reasons that follow, we agree with the Commonwealth.

In Commonwealth v. Alexander, 232 Pa.Super. 57, 331 A.2d 836 (1974), this Court held that another requirement central to a probation revocation hearing, that of written notice of the claimed violation, was not subject to waiver because “it would be in derogation of the minimum due process rights of an alleged probation violator to require him to raise lack of notice at a less-than-formal hearing or waive his right to do so.” Id., 232 Pa.Superior Ct. at 62, 331 A.2d at 839; see Commonwealth v. Kile, 237 Pa.Super. 72, 346 A.2d 793 (1975); Commonwealth v. Stratton, 235 Pa.Super. 566, 344 A.2d 636 (1975). This exception to the waiver doctrine was extended to a speedy hearing claim in Commonwealth v. Spence, 252 Pa.Super. 341, 381 A.2d 949 (1977), for the reason that “[tjhere is no rational basis for distinguishing between the speedy hearing and written notice requirements since they both are required by due process.” Id., 252 Pa.Superior Ct. at 346 n. 2, 381 A.2d at 951 n. 2. This holding was followed in Commonwealth v. Ruff, 272 Pa.Super. 50, 414 A.2d 663 (1979). However, in Commonwealth v. Ziegler, 286 Pa.Super. 26, 428 A.2d 220 (1981), a panel of this Court, stating that “research has failed to disclose any appellate decisions concerning whether a defendant who fails to assert a denial of a speedy probation hearing waives his right to one under Pa.R.Crim.P. 1409 if he does not raise the issue at the hearing”, held that a speedy hearing claim is waived if not raised at the revocation hearing.

It is not, however, necessary for us to resolve this conflict among the decisions of this Court because we believe that our Supreme Court has, at least impliedly, already done so. In Commonwealth v. Collins, 492 Pa. 405, 424 A.2d 1254 (1981), the Supreme Court stated the following:

Appellant now raises several objections to the violation of probation proceeding. He contends that there was inadequate notice given to him; that he was denied the right to confront adverse witnesses; that he was denied a speedy revocation hearing; and that the sentencing process failed to comport with due process.
A review of the record of the counselled revocation proceeding before Judge McDermott reflects that these objections were not raised during that proceeding. The failure to interpose these objections at any time in the court below precludes their consideration on appeal. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Id., 492 Pa. at 406-07, 424 A.2d at 1254 (emphasis added).

In Commonwealth v. King, 287 Pa.Super. 477, 430 A.2d 990 (1981), a panel of this Court held that the above-quoted portion of Collins overruled, sub silentio, those cases holding that a written notice claim could not be waived by failure to raise it at the revocation proceeding. We find the conclusion inescapable that Collins also overruled, sub si-lentio, the cases holding that a speedy hearing claim could not be waived by failure to raise it at the revocation proceeding.

In the instant case, appellant did not raise his speedy hearing claim at the probation revocation hearing. We, therefore, under Collins, must conclude that appellant has waived that claim.

However, appellant also raises his speedy hearing claim in terms of ineffective assistance of counsel; i.e., he argues that his counsel at the violation of probation hearing [hereinafter V.O.P. counsel] provided ineffective assistance by not raising at the hearing the claimed denial of appellant’s rights under Rule 1409. “To determine whether counsel was ineffective, we must first ascertain whether there were reasonable grounds on which to pursue the omitted claims.” Commonwealth v. Diaz, 258 Pa.Super. 346, 349, 392 A.2d 827, 828 (1978), citing Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If there was arguable merit to the omitted claim, we must next ascertain whether counsel had a reasonable basis for omitting the claim. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985) (en banc). Finally, if counsel had no reasonable basis for omitting the claim, the appellant will still not be entitled to any relief if the omission of the claim was harmless beyond a reasonable doubt. Id.

In considering whether there was arguable merit to the speedy hearing claim, we note:

Rule 1409 does not establish a presumptive period in which the Commonwealth must revoke probation, but, instead, the question is whether the delay was reasonable under the circumstances of the specific case. Commonwealth v. Kane, [315] Pa.Super. [212], 461 A.2d 1246 (1983). In evaluating the reasonableness of the delay the court examines three factors: the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay. Commonwealth v. Young, 262 Pa.Super. 253, 396 A.2d 741 (1978).

Commonwealth v. McCain, 320 Pa.Super. 394, 396-97, 467 A.2d 382, 383 (1983) (footnote omitted).

For purposes of Rule 1409, the relevant period of delay is calculated from the date of conviction to the date of the revocation hearing. Commonwealth v. Reed, 277 Pa. Super. 94, 419 A.2d 677 (1980). However, the term “conviction” in this context does not refer to the disposition of post-trial motions or to a sentence, but, instead, refers to a verdict or a plea of guilty. Commonwealth v. Jones, 250 Pa.Super. 116, 378 A.2d 481 (1977).

In the instant case, the record does not indicate on what dates appellant pled guilty to the crimes constituting the violations of probation; it indicates only on what dates appellant was sentenced for those crimes. However, even assuming that appellant was sentenced on the dates he pled guilty, the shortest period of delay in this case was five months and three weeks. “In Commonwealth v. White, [218 Pa.Super. 188, 279 A.2d 768, 769 (1971) ] a delay of five and one-half months was held unreasonable under the circumstances. We are therefore unable to say that the delay in the instant case was intrinsically reasonable.” Id., 250 Pa.Superior Ct. at 120, 378 A.2d at 483; see McCain, supra. Therefore, the delay weighs in appellant’s favor. Commonwealth v. Smith, 266 Pa.Super. 234, 403 A.2d 1326 (1979).

We next consider the reasons for the delay. In evaluating the reasons for the delay,

[a] deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972) (footnote omitted).

Jones, 250 Pa.Super. at 120-21, 378 A.2d at 483.

The Commonwealth explains the delay by noting that: the Probation Department did not inform the court of the out-of-county convictions until September 10, 1984; the court immediately set a revocation hearing for the next available date, October 17, 1984, but appellant was not brought down from prison; and the court scheduled a new date for the hearing of November 28, 1984, at which time it revoked probation.

We note first that the “facts” that the Probation Department did not inform the court of the convictions until September 10, 1984, and that a hearing was immediately set for the next available date are contained only in the opinion of the lower court and are thus not part of the record. See Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983). An appellate court may not, of course, consider facts not of record. Commonwealth v. Mazzochatti, 299 Pa.Super. 447, 445 A.2d 1214 (1982).

Even if we were to consider the “facts” set forth in the lower court’s opinion, they and the other reasons advanced by the Commonwealth, in the absence of some explanation as to why the Probation Department took over three months to inform the court of the violations and why appellant was not brought down from prison on October 17, 1984, indicate that the delay resulted from factors exclusively in the Commonwealth’s control. Thus, the delay at best falls into the “neutral” category and, as such provides some support for appellant’s position. See Jones, supra.

The final factor to be weighed is the prejudice resulting from the delay. In the instant case, no actual prejudice resulted from the delay. Appellant does not and could not object to lost evidence relating to the fact of violation because that issue was resolved in the prior criminal proceedings and cannot be relitigated. Id., citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Also, appellant was not incarcerated during the delay because of a prima facie showing of a probation violation, but rather was in jail because of the sentence of three and one-half to ten years he received for the probation violating offense of robbery. In such a case, the interest in providing a prompt revocation hearing is substantially reduced. See Jones, supra; Commonwealth v. Parker, 244 Pa.Super. 113, 366 A.2d 941 (1976).

However, “our cases have held that something less than actual prejudice may tip the balance in an appellant’s favor.” Diaz, supra, 258 Pa.Super. at 350 n. 3, 392 A.2d at 829 n. 3 (1978). They “have indicated that a certain amount of prejudice necessarily follows from the mere fact of the expiration of the [probationary] period.” McCain, 320 Pa.Super, at 398, 467 A.2d at 384, quoting Commonwealth v. Holmes, 248 Pa.Super. 552, 560, 375 A.2d 379, 382 (1977).

In the case sub judice, the probationary period expired on June 3, 1984. The revocation hearing of November 28, 1984 was thus held almost six months after the expiration of the probation period. Therefore, we must conclude that appellant suffered some “technical” prejudice. Considering the, at minimum, five month and three week delay in this case and the, at best, “neutral” reasons offered by the Commonwealth for that delay, we believe that “technical” prejudice suffered by appellant is sufficient to tip the balance in appellant’s favor. Thus, we conclude that a claim that appellant was denied his right to a speedy hearing under Rule 1409 would have been of arguable merit.

We also believe that there can be no reasonable basis for VOP counsel to have failed to have raised this issue. Cf. Commonwealth v. Byrd, 250 Pa.Super. 250, 378 A.2d 921 (1977) (there is no reasonable basis for an attorney to fail to object to a violation of his client’s right to a speedy trial under Pa.R.Crim.P. 1100). If VOP counsel had raised the speedy hearing claim, appellant’s probation could not have been revoked. Thus, we must conclude that appellant’s right to effective assistance of counsel was violated.

The final question we must address is to what remedy this violation entitles appellant. This question arises because the Commonwealth does not have to put proof on the record that a defendant was afforded a speedy hearing when that issue is not raised at the revocation hearing, see Spence, supra, and since the speedy hearing claim was not raised below, the Commonwealth may have been able to prove below that the hearing was speedy, but found it unnecessary to do so. It is thus arguable that the proper remedy would be to remand the case for a limited hearing to give the Commonwealth the opportunity to prove that appellant was given a speedy revocation hearing. See Diaz, supra.

Such a remedy would be analogous to that given in the context of a written notice raised for the first time on appeal in those cases decided during the time such a claim would be entertained for the first time on appeal. In Spence, supra, we held that, where the defendant had not raised the issue of lack of notice before the lower court, we would remand for a limited hearing to determine whether written notice was in fact provided if the Commonwealth alleged on appeal that it had been given.

We believe a remand for a limited hearing is also appropriate in the context of a speedy hearing claim in order to give the Commonwealth the same opportunity to put evidence on the record regarding that claim that it would have had had counsel not failed to raise the issue at the revocation hearing. Therefore, we hold that where counsel is found to have been ineffective for failing to raise a speedy hearing claim at a probation revocation hearing, we will remand the case for a hearing limited to the question of whether the defendant was given a speedy hearing under Pa.R.Crim.P. 1409, if the Commonwealth on appeal offers to prove facts which would establish that the defendant was afforded a speedy hearing.

In the instant case, we do not believe the Commonwealth has made an offer of proof sufficient to justify a remand of the case for a limited hearing. The only facts not of record offered by the Commonwealth are that the Probation Department did not inform the lower court of the out-of-county convictions until September 10, 1984 and that the court immediately set a revocation hearing for the next available date. As discussed supra, assuming the truth of these allegations, they, in conjunction with the facts of record, do not establish that appellant was afforded a speedy hearing. Therefore, we could simply reverse the order revoking probation and vacate the judgment of sentence. However, since this is the first case to announce that the Commonwealth will be entitled to a limited hearing only if it alleges sufficient facts, we will give the Commonwealth the benefit of the doubt and remand for a limited hearing in this case and only this case despite the Commonwealth’s failure to allege facts which if proven would establish that appellant was afforded a speedy revocation hearing.

Case remanded for an evidentiary hearing which is to be limited to the question of whether appellant was afforded a speedy probation revocation hearing. Jurisdiction of this panel is retained.

      . Rule 1409 provides in relevant part:
      Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that the defendant violated a condition of probation or parole.

      . See Gagon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

      . This issue is properly before us since this is the first opportunity that counsel other than counsel whose ineffectiveness is being alleged has had to raise the claim. See Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207 (1977). Although current counsel did not enter his appearance until 29 days after sentence was imposed, he did attempt at that time to raise the ineffective assistance of counsel claim in a motion to modify sentence. The court below properly ruled that the motion was untimely under Pa.R.Crim.P. 1410 which requires such a motion to be filed within ten days after imposition of sentence. We hasten to add that even if new counsel had represented appellant earlier and the Rule 1410 motion had been timely, the claim would still not have been properly raised by the motion. Only claims involving the sentence itself, e.g., a claim that the sentence is excessive or that the reasons given on the record for the sentence are inadequate, may be raised in a Rule 1410 motion. There is at present no procedure analogous to the filing of post-verdict motions under Pa.R.Crim.P. 1123 after a trial, for raising non-sentencing issues in the lower court after a revocation hearing. Since the issue that counsel was ineffective for not raising a speedy hearing claim is a non-sentencing issue, this appeal is the first opportunity new counsel has had since representing appellant to raise that issue.

      . The Commonwealth manifests a most disturbing misapprehension of the record when it states in its brief that the probationary period had not ended and would not have ended until 1986. This conclusion appears to stem from its earlier statement that appellant had received a term of probation of two to four years. This statement is obviously incorrect since a sentence of probation is for a fixed length of time rather than for a minimum to a maximum term. See 42 Pa.C.S. § 9754. The Commonwealth thus appears to have assumed that the probationary period was four years which would have extended it into 1986. The record is quite clear, however, that the probationary period was two years beginning on June 3, 1982.

      . The Commonwealth makes the somewhat absurd argument that in order to show that counsel was ineffective for failing to raise the speedy hearing claim, appellant must allege and prove that he requested counsel to raise the claim and counsel failed to do so. However, the very reason a defendant is entitled to competent counsel in the first place is that it is presumed that he is not aware of such things as the existence of Rule 1409, the right to a speedy hearing under the rule, and the need to raise a deprivation of that right at the hearing. If a defendant has not been afforded a speedy revocation hearing, he has a right to have his counsel raise that issue at the hearing whether or not he requested counsel to do so.

      . We find that the same reasoning that supports the conclusion that there could be no reasonable basis for not raising the speedy hearing claim, also supports the conclusion that counsel’s omission was not harmless.