author: WIEAND, Judge:

text:
    478 A.2d 21
    COMMONWEALTH of Pennsylvania v. Alan PRESBURY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 26, 1983.
    Filed June 1, 1984.
    Petition for Allowance of Appeal Denied Aug. 30, 1984.

      Harvey W. Robbins, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

Alan Presbury was tried by jury and was found guilty of first degree murder as a result of the killing of Blair Lee in May, 1974 at 28th and Huntingdon Streets in Philadelphia. A sentence of life imprisonment was imposed, and, on direct appeal, the judgment of sentence was affirmed. Commonwealth v. Presbury, 475 Pa. 48, 379 A.2d 569 (1977). Presbury subsequently filed a petition under the Post Conviction Hearing Act. Counsel was appointed, and evidentiary hearings were held. Appellant’s P.C.H.A. petition was thereafter dismissed, and he appealed to this Court. We remanded with instructions to the P.C.H.A. court to make necessary findings of fact. Commonwealth v. Presbury, 321 Pa.Super. 69, 467 A.2d 898 (1983). Those findings have now been made; and the P.C.H.A. court’s final order is again before us for review.

As Blair Lee, Jimmy Mosteller, Valerie Williams and Raymond Holmes walked along Huntingdon Street in the early evening of May 2, 1974, an assailant removed a shotgun from a parked car and fired it at the quartet walking along the street. Lee was struck in the chest and arm and died as a result of his wounds. Holmes was struck in the left eye. Only Holmes was able to identify the assailant. He testified that he had observed the face of the assailant for two seconds and that he recognized appellant, with whom he had had prior confrontations, as the man pointing the shotgun. Appellant’s defense was that Holmes was mistaken in his identification of the assailant and that he, Presbury, had been elsewhere at the time of the shooting. The jury rejected appellant’s defense and convicted on the basis of Holmes’ identification.

In P.C.H.A. proceedings, appellant alleged that trial counsel had been ineffective for the following reasons: (1) he failed to use Holmes’ juvenile, record to impeach Holmes’ credibility; (2) he failed to call character witnesses; (3) he failed to show that appellant had no prior record; (4) he failed to establish that the group to which appellant belonged was not a recognized, violent “gang”; (5) he cross-examined a witness regarding evidence not produced at trial; and (6) during closing argument to the jury, he referred to a conflict in the testimony given by defense witnesses.

When confronted with a claim of ineffectiveness of counsel, we use a two-step analysis. We must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. If the underlying issue is found to be of arguable merit, then we determine whether the course chosen by counsel had some reasonable basis calculated to promote the client’s interests. Commonwealth v. Klinger, 323 Pa.Super. 181, 193, 470 A.2d 540, 546 (1983); Commonwealth v. Jennings, 285 Pa.Super. 295, 298-299, 427 A.2d 231, 232 (1981). The burden of showing that counsel’s representation has been constitutionally ineffective is upon the appellant. Commonwealth v. Logan, 468 Pa. 424, 433, 364 A.2d 266, 271 (1976); Commonwealth v. Barnes, 248 Pa.Super. 579, 582, 375 A.2d 392, 394 (1977).

Appellant’s principal contention is that trial counsel was ineffective because he failed to “present to the jury evidence that the Commonwealth’s only witness had a long juvenile record.” He argues that Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), was decided almost a year before appellant’s trial and that trial counsel should have relied on that decision to persuade the trial court to receive the juvenile record of Raymond Holmes. Appellant misconceives the tenor of Davis v. Alaska. The Supreme Court there held that a state’s interest in protecting juvenile offenders had to give way to the right of a criminal defendant to challenge the credibility of witnesses appearing and testifying against him. It did not hold that a witness’ record was invariably admissible to attack credibility. The juvenile record of a witness, to be admissible, must be relevant. If it is not relevant for any purpose, the record is inadmissible. A finding of ineffective assistance, moreover, cannot be made unless it is demonstrated that the alternative not chosen, in this case the introduction of Holmes’ juvenile record, offered a potential for success substantially greater than the tactics actually utilized. Commonwealth v. Hubbard, 472 Pa. 259, 277-278, 372 A.2d 687, 695-696 (1977); Commonwealth v. Simmons, 312 Pa. Super. 501, 505, 459 A.2d 14, 16 (1983); Commonwealth v. Williams, 297 Pa.Super. 138, 145, 443 A.2d 338, 341 (1982).

Appellant’s suggestion that Holmes’ entire “lengthy juvenile record” should have been introduced and shown to the jury is clearly without merit. Holmes’ record included numerous arrests for fighting and disorderly conduct which had no relevancy to the witness’ credibility or to any issues in appellant’s case. Moreover, juvenile adjudications, it has been held, are not equivalent to adult, criminal convictions. Thus, they are not normally relevant for impeachment purposes. Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973). See also: Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978).

Appellant contends, however, that Holmes’ juvenile record was relevant to show (1) that Holmes had previously been charged with shooting appellant and that the charges had been dismissed prior to appellant’s trial at the instance of the District Attorney, and (2) that Holmes was incarcerated at the time of trial pursuant to an adjudication of delinquency for an unrelated stabbing. A close examination of these issues discloses the lack of merit in appellant’s contentions and confirms the P.C.H.A. court’s finding that appellant failed to prove that the course advocated by P.C.H.A. counsel offered a potential for success greater than the tactics followed by trial counsel.

The fact that Holmes had previously shot appellant in the leg was very much in evidence and was explored at length by counsel for both parties during the trial. The unrelated stabbing of another person, on the other hand, was an offense for which Holmes had been adjudicated delinquent and incarcerated prior to appellant’s trial. It was irrelevant to the shooting for which appellant was being tried. Moreover, appellant’s trial counsel did, in fact, refer to the stabbing offense. However, when appellant’s trial counsel asked Holmes, “Isn’t it a fact that you are in prison now for stabbing someone?”, the court sustained a prosecution objection. (Trial Record, pp. 71-72).

Appellant argues that Holmes’ juvenile record would have disclosed the “possibility” of a deal between Holmes and the District Attorney which may have caused bias and influenced Holmes’ testimony. This argument must also fail. In Commonwealth v. Baston, 242 Pa.Super. 98, 363 A.2d 1178 (1976), trial counsel was charged with ineffective assistance because he failed to cross-examine a juvenile accomplice of the appellant regarding a deal by which the juvenile testified to avoid prosecution and protect his probation. This Court said:

“We perceive this issue to require a four-part analysis of the record: (1) was there a ‘deal;’ (2) was defense counsel aware of the deal, and, if he was not, was the record of such nature that counsel should have been aware of the deal; (3) could counsel, on cross-examination, have pursued the ‘deal;’ and (4) as is most critical in cases of this nature, was defense counsel’s cross-examination deficient when tested by Commonwealth ex rel. Washington v. Maroney, supra.”

Id., 242 Pa.Superior Ct. at 107, 363 A.2d at 1183. See also: Commonwealth v. Fulton, 318 Pa.Super. 470, 479, 465 A.2d 650, 654 (1983).

In the instant case, appellant failed to prove that there had been a “deal”. There was a total absence of evidence that Holmes had agreed to testify in exchange for favorable consideration by the District Attorney. Thus, the first requirement of Bastón was missing. In the absence of proof that there had been a “deal” between the District Attorney and Holmes regarding the latter’s testimony, we will not hold trial counsel ineffective for failing to use Holmes’ record to show the “possibility” that such a deal existed. Trial counsel used alternate means to show Holmes’ bias. He attempted to establish Holmes’ bias by showing the enmity which existed between Holmes and appellant over a period of time. Holmes and appellant had been involved previously in a shooting and also in a fist fight. The P.C.H.A. court found that this was a reasonable alternative aimed at serving appellant’s interests. We are unable to conclude that the court’s finding was incorrect or unsupported by the evidence.

The evidence pertaining to the use of character witnesses at trial was conflicting. The P.C.H.A. court found the testimony of trial counsel more credible and based its findings of fact on such testimony. Counsel testified that he had explained to appellant the nature and purpose of character witnesses and had asked appellant if he knew persons who would be able to testify to his good reputation. Appellant told counsel that his father would not be a good witness but suggested that his employer would be. It was discovered prior to trial, however, that the employer was not able to qualify as a character witness because he did not know appellant’s reputation in the community and could express only his personal opinion regarding appellant’s character. Appellant suggested no other character witnesses. Counsel will not be held ineffective for failing to call witnesses if the accused did not make their existence known. Commonwealth v. Hollerbush, 298 Pa.Super. 397, 405-406, 444 A.2d 1235, 1239-1240 (1982); Commonwealth v. Williams, 274 Pa.Super. 464, 472, 418 A.2d 499, 503 (1980); Commonwealth v. Ross, 273 Pa.Super. 67, 71, 416 A.2d 1092, 1094 (1979). See also: Commonwealth v. Kittrell, 285 Pa.Super. 464, 471 n. 5, 427 A.2d 1380, 1383 n. 5 (1981) .

Similarly, trial counsel was not ineffective for not attempting to prove appellant’s good reputation by showing that appellant did not have a criminal record. A defendant’s good character may be proved by testimony of his reputation in the community, but it cannot be shown by the absence of a criminal record. Commonwealth v. Pressel, 194 Pa.Super. 367, 371, 168 A.2d 779, 780 (1961); Henry, Pennsylvania Evidence § 159 (4th ed. 1953). Moreover, if appellant in this case did not have a prior criminal record, his history was not free of police encounters. When trial of the instant case took place the case of Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), had not been decided; and appellant’s counsel was of the opinion that it was preferable not to open the door by questions which would allow cross-examination pertaining to appellant’s pri- or police encounters. See: Commonwealth v. Smith, 432 Pa. 517, 519, 248 A.2d 24, 25 (1968). Counsel’s trial strategy was reasonable and calculated to serve appellant’s best interests.

There was testimony at trial which suggested that appellant had been a member of a group known as the “Blue Moons.” Appellant had told his trial counsel, however, that he was not a member of any gang. Hindsight is invariably better than foresight; but trial counsel’s effectiveness cannot be measured against facts undisclosed prior to trial. In view of what appellant told his counsel prior to trial, counsel cannot be deemed ineffective for failing to have expert witnesses available to testify that the Blue Moons was a peaceful neighborhood group and not a violent gang recognized by and known to city officials for engaging in gang warfare.

Appellant’s contention that his counsel’s cross-examination of a Commonwealth witness was conducted so ineffectively as to make it possible for the jury to acquire information not otherwise admissible was not addressed at the P.C.H.A. hearing. Therefore, this issue has been waived. Commonwealth v. Sakal, 494 Pa. 286, 289, 431 A.2d 261, 263 (1981); Commonwealth v. Nelson, 489 Pa. 491, 494, 414 A.2d 998, 999 (1980). Because it was not addressed at the evidentiary hearing, the record does not permit meaningful review of counsel’s stewardship with respect to this aspect of the trial.

Appellant argues finally that trial counsel was ineffective because he told the jury during closing argument that the testimony of a defense alibi witness had been inconsistent with testimony of other alibi witnesses. He contends that no inconsistency existed and that counsel should not have suggested otherwise. A careful review of the record, however, discloses that Marlene Brothers’ testimony may well have appeared to a juror to be inconsistent with testimony of other witnesses who placed appellant at the corner of Dauphin and 30th Streets for a short time on the evening of the shooting. Brothers had testified that appellant was in his house the entire time except for when he was working on his car in front of his residence. Counsel was not ineffective for attempting to present the jury with an accurate and fair summary of the evidence. Whether to refer to this apparent conflict or to hope the jury would pay no attention to it was a matter of trial strategy. Counsel’s strategy was reasonably designed to effectuate appellant’s interests.

For the foregoing reasons, we conclude that appellant did not receive constitutionally infirm assistance of trial counsel. The order dismissing his P.C.H.A. petition is affirmed.

Order affirmed.

POPOVICH, J., concurs in the result.

      . 18 Pa.C.S. § 2502(a).

      . 427 Pa. 599, 235 A.2d 349 (1967).


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    478 A.2d 26
    COMMONWEALTH of Pennsylvania v. Joseph R. GRANT, Appellant. COMMONWEALTH of Pennsylvania v. Joseph Rovene GRANT, Appellant.
    Superior Court of Pennsylvania.
    Argued March 27, 1984.
    Filed June 8, 1984.

      Jeffrey Toaltoan, Philadelphia, for appellant.

      J. William Ditter, III, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   McEWEN, Judge:

This is a direct appeal undertaken after appellant was found guilty by a jury of robbery, theft, simple and aggravated assault, recklessly endangering another person, terroristic threats, possession of an instrument of crime, possession of a weapon and criminal conspiracy. The distinguished Judge Samuel W. Salus II sentenced appellant to serve a term of imprisonment of from five to ten years for robbery and a term of probation of five years for conspiracy to commence upon his release from prison on the robbery conviction. Appellant, represented by new counsel on appeal, raises allegations of ineffectiveness of not only his pre-trial counsel but also of his trial counsel, and presents, as well, arguments concerning the rulings of the trial court. While the trial judge properly rejected the post-trial motions of appellant, we are compelled to remand for an evidentiary hearing on one issue of ineffectiveness.

The charges arose from an attack by two men upon a 22 year old woman as she alighted from her automobile in a shopping area. One robber brandished a knife as he grabbed the victim from behind and pushed her to the ground with threats to cut and rape her. When his accomplice was unable to open the locked door of the victim’s car, the assailant repeatedly struck the eye of the victim while demanding the car keys. When the approach of a nearby shopkeeper caused the robbers to halt the attack and flee, they nonetheless absconded with the pocketbook of the victim which contained approximately $150.00 in cash and credit cards. The victim required hospital treatment and x-ray examination for the severe facial injuries she had sustained in the attack, including bruises of the nose and both eyes, one of which was swollen shut for a week. The victim subsequently identified a picture of appellant as the man who had attacked and threatened her from a photographic array which had been assembled by the police.

Appellant was arrested on June 26, 1981, and charged with conspiracy, possession of instruments of crime, possession of offensive weapons, aggravated assault, recklessly endangering another person, terroristic threats, robbery, theft, and receiving stolen property. Appellant presented an alibi defense at trial and both he and his brother testified that appellant was at a picnic at the home of his brother during the period in which the attack at issue occurred. The jury rejected this defense when it found appellant guilty as charged.

Appellant presents the following issues for opr review:

I. Whether appellant was denied effective assistance of counsel by virtue of his first counsel’s failure to investigate appellant’s claim of alibi prior to filing a notice of alibi defense.
II. Whether appellant was denied effective assistance of counsel by virtue of trial counsel’s failure to secure the presence of alibi witnesses at trial.
III. Whether there was sufficient evidence to support the verdict for simple and aggravated assault, robbery and recklessly endangering another person.
IV. Whether the verdict in the case was contrary to the weight of the evidence.
V. Whether the trial court erred in not granting defendant’s motion to quash.
VI., Whether the trial court erred in not sustaining appellant’s objection and permitting cross-examination of appellant concerning the first pretrial alibi notice.

Since the trial judge in his able opinion has quite satisfactorily discussed and properly disposed of the final four issues, we may limit this opinion to appellant’s allegations of ineffective assistance of counsel.

The manner of our review of this issue is well established:

When we study a claim of ineffectiveness of counsel, we first determine whether the claim is of arguable merit. Only if the underlying claim is of arguable merit do we consider whether the strategy chosen by trial counsel has some reasonable basis designed to effectuate the interest of the client. Commonwealth v. Evans, 489 Pa. 85, 94, 413 A.2d 1025, 1028 (1980); Commonwealth v. Kaufman, 307 Pa.Super. 63, 73, 452 A.2d 1039, 1044 (1982). Our review of the claim that counsel was ineffective is governed by the standard enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):
[C]ounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.
Id., 427 Pa. at 604-05, 235 A.2d at 352-53. (emphasis in original).

Commonwealth v. Mayfield, 318 Pa.Super. 450, 453, 465 A.2d 40, 41-42 (1983).

Appellant initially alleges that pre-trial counsel rendered ineffective assistance because he failed to independently confirm the alibi information supplied by appellant, before filing this information of record in the Notice of Alibi Defense required by Pa.R.Crim.P. 305(C). Appellant, in effect, urges this Court to rule that counsel must, prior to filing the Notice of Alibi and the specific information which must be set forth therein, interview the alibi witnesses whom appellant has identified so as to confirm that the purported witnesses will corroborate the alleged alibi. Appellant does not cite authority for this proposition. Nor will we create such authority. We distinguish Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976), since the Pennsylvania Supreme Court there found counsel ineffective because he had discounted the defendant’s version of the crime, and advised him to plead guilty, without the benefit of interview of any of the witnesses who allegedly would have supported the defendant’s claims. Here, however, counsel relied on the representations of his client and advanced a defense based thereon. We find a claim which suggests that counsel must, in the first instance, disbelieve the assertions of his client, or rely on those representations at his professional peril, to be totally devoid of merit.

Appellant next contends that trial counsel failed to secure the attendance of five of the six witnesses listed on appellant’s second notice of alibi. The Pennsylvania Supreme Court, in Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A.2d 440, 443 (1975), recognized that the “failure to explore all alternatives available to assure that the jury heard the testimony of a known witness who might be capable of casting a shadow upon the Commonwealth’s witness’s truthfulness ...” may constitute ineffective assistance. Trial counsel here, during the course of a sidebar conference, represented to the court that he had unsuccessfully attempted to subpoena four alibi witnesses and that, when, they could not be located by an investigator, he sought the help of appellant, who was on bail, to procure their presence. Trial counsel further advised the Court during that conference that a fifth witness, the sister of appellant, who had been properly subpoenaed, failed to appear but that he was presently making efforts to contact her. Counsel then prevailed upon the court to recess for lunch so as to enable him to make further attempts to secure these witnesses. While the record does not contain any references to the success of this endeavor, defense counsel thereafter presented testimony only from the appellant and his brother.

It is true that the record also reveals that:

One witness whom trial counsel allegedly failed to present was the wife of appellant’s brother who, himself, appeared as an alibi witness.
Three other witnesses, whose failure to appear was allegedly the result of ineffective representation of trial counsel, were neighbors of appellant’s brother.
Neither the alibi testimony of appellant’s brother nor of appellant himself included specific reference to the presence at the alibi scene of appellant’s sister or of the three neighbors listed upon the alibi notice.
Appellant lives in the same community as those witnesses listed on the alibi notice and was on bail and presumably able to participate in counsel’s attempts to procure these witnesses.

These factors might even trigger the observations that appellant and his brother were themselves ineffective in the preparation of a defense and that the failure of family and neighbors to assist in the defense can permit but one inference, namely, the individuals refused to participate in a contrived defense. Nonetheless, since the issue of ineffectiveness has been raised for the first time in this forum, the trial court has not had the opportunity to conduct a hearing and provide findings concerning the reasonableness of counsel’s efforts to secure the presence of appellant’s alleged alibi witnesses. We, therefore, are compelled to remand this matter for an evidentiary hearing.

It is certain, of course, that on remand, appellant has the burden of demonstrating that counsel was ineffective and must first establish that “the testimony of the absent witnesses would have been helpful in establishing the asserted defense.” Commonwealth v. Leonard, 499 Pa. 357, 362, 453 A.2d 587, 589 (1982) (citations omitted). Only if, in fact, these witnesses would have provided appellant with alibi evidence, is it necessary for the hearing court to inquire into whether trial counsel “fail[ed] to explore all available alternatives” to procure the attendance at trial of these witnesses. Commonwealth v. Pittman, 295 Pa.Super. 234, 238, 441 A.2d 436, 438 (1982) quoting Commonwealth v. Twiggs, supra. Counsel is, of course, required only to expend reasonable effort to secure their presence. Commonwealth v. Ritchie, 326 Pa.Super. 447, 474 A.2d 324 (1984). If, after the conduct of the hearing, the court determines that trial counsel was ineffective, it may grant appropriate relief. However, should counsel be found to have provided effective representation, the judgment of sentence shall again be imposed, since we have rejected all other assertions of error which would require the grant of a new trial.

Appeal No. 2718 is quashed. Judgment of sentence in No. 2689 is vacated solely to conduct proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Appeal No. 02718, Philadelphia, 1982, was a pro se appeal from the verdict of the jury. This pro se appeal was consolidated with the appeal from the judgment of sentence filed by counsel. Since an appeal is not properly taken from a verdict, but only from a judgment of sentence, the pro se appeal must be quashed. Commonwealth v. Barnett, 293 Pa.Super. 420, 439 A.2d 182 (1981).

      . The prosecuting attorney questioned appellant about the discrepancies between the facts contained in the first Notice of Alibi and the alibi actually testified to by appellant. Appellant explained that he had been confused and had mistakenly supplied pre-trial counsel with his whereabouts on the night following the date on which this incident occurred. When, in preparing for trial, appellant discovered his mistake, he advised trial counsel, who filed a second Notice of Alibi. Appellant's trial testimony was consistent with the second alibi notice.

      . We note that the issue of ineffectiveness was confined to the failure of counsel to interview witnesses to determine whether they supported appellant’s alibi defense prior to filing the notice of alibi. Thus we are not faced with a failure by counsel to interview alibi witnesses prior to their presentation of testimony.


author: MONTEMURO, Judge:

text:
    478 A.2d 30
    COMMONWEALTH of Pennsylvania v. Richard MILLS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1984.
    Filed June 8, 1984.

      Joseph J. Yeager, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

      Before MONTEMURO, CERCONE and HESTER, JJ.
   MONTEMURO, Judge:

This is an appeal from the judgment of sentence. The appellant, Richard Mills, was found guilty after a jury trial of criminal attempt and criminal conspiracy. Both charges arose out of an incident wherein appellant and his co-defendant, William J. Gola, allegedly made efforts to procure a controlled substance (methamphetamine) for an undercover agent from the Bureau of Narcotics Investigation. Boilerplate post-verdict motions were filed by the appellant but denied by the trial court. On February 24, 1983, the trial court imposed a sentence of five (5) years special probation. The probation sentence is to be served consecutively to a term of imprisonment currently being served by the appellant on an unrelated charge. This timely appeal followed.

The appellant contends on appeal that the evidence was insufficient to sustain his convictions, and that for a variety of reasons trial counsel was ineffective. Because we agree that the evidence was insufficient, we need not consider the claims of ineffectiveness.

In evaluating the sufficiency of the evidence, we are guided by the oft-stated standard set forth in Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982):

The test for sufficiency of the evidence is whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Id, 498 Pa. at 669, 450 A.2d at 977. Viewed in light of this standard, the following evidence was adduced at trial. On December 24, 1981, Joseph H. Byerly, an undercover agent for the Bureau of Narcotics Investigation, went to the Wilkes-Barre apartment of one of his informants, Gene Kline. Byerly and Kline then proceeded to the apartment of William Gola, a high school acquaintance of Kline.

When Byerly and Kline arrived at Gola’s apartment only a female identified as Tracy was present. Shortly thereafter, Gola and one George Thomas arrived at the apartment. Kline introduced Byerly, and inquired if he and Byerly could obtain some methamphetamine. Gola and Tracy had a conversation as to where the drug might be obtained. “They arrived at the name of Karl.” (N.T. June 2, 1981, at 7-8). Tracy gave “Karl’s” phone number to Gola, who went to a restaurant to attempt to call “Karl”.

A few moments later, the appellant and another man arrived at Gola’s apartment. Gola returned and said he could not contact “Karl”. Gola and the appellant had a conversation which was not heard in its entirety by Byerly; however, he testified that Gola told appellant that Kline and Byerly were looking for methamphetamine. At that point, the appellant said to Byerly that, “he had paid another person, who was unidentified, in advance for a quantity of methamphetamine, which he was to receive later...” (N.T. June 2, 1982, at 9). He also asked if Byerly would “wait until that evening”, but Byerly declined.

Byerly and Kline then left the apartment. While Byerly waited in his car, Kline returned to the apartment, pursuant to Byerly’s instructions, and asked Gola to come down to the car. Gola, Kline and the appellant returned and got into the car. Gola gave directions to the home of Karl Polzer, and when they arrived, they drove past the front and also past the back of the house. Someone told Byerly that Polzer was not home because his car was not there. They drove back to Gola’s apartment. Byerly was again asked (by one of the defendants) whether he could wait until that evening. He again declined and left.

The appellant and Gola were arrested by the Wilkes-Barre Police on January 21, 1982.

Initially, we note that the information setting forth the charges against the appellant stated:

THE DISTRICT ATTORNEY OF THE COUNTY OF LUZERNE by this information charges that RICHARD MILLS on or about the 24th day of December , 1981 , in said County, with the intent of promoting or facilitating its commission, did agree with William J. Gola that they would engage in conduct which constitutes the crime of Delivery of Controlled Substance, and in furtherance thereof they directed Agent Joseph Byerly to 471 South River Street, Wilkes-Barre, the residence of Karl Polzer, in an attempt to obtain a controlled substance, however the said Karl Polzer was not at home.
CRIMINAL CONSPIRACY, 18 Pa.C.S.A. 903(a)(1).
AND THE DISTRICT ATTORNEY OF THE COUNTY OF LUZERNE further charges that RICHARD MILLS on the day and the year aforesaid, in said County, with intent to commit a specific crime, to wit, Delivery of Controlled Substance, did an act which constitutes a substantial step toward the commission of said crime by taking Agent Joseph Byerly to 471 South River Street, Wilkes-Barre, the residence of Karl Polzer, for the purpose of obtaining a controlled substance, however the said Karl Polzer was not at home.
CRIMINAL ATTEMPT, 18 Pa.C.S.A. 901.

With regard to the charge of conspiracy, we initially refer to the definition set forth at 18 Pa.C.S.A. § 903(a)(1), upon which the appellant was charged:

(a) Definition of conspiracy, — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime;

See also, Commonwealth v. Davis, 312 Pa.Super. 85, 458 A.2d 248 (1983). In Commonwealth v. Lamb, 309 Pa.Super. 415, 455 A.2d 678 (1983), this court said:

The essence of the offense of conspiracy is an agreement between two or more persons to commit an unlawful act. Commonwealth v. Emmi, 290 Pa.Super. 86, 434 A.2d 142 (1981). The agreement required for conspiracy can seldom be directly proved, nor need it be. Commonwealth v. Smith, 289 Pa.Super. 356, 433 A.2d 489 (1981); Commonwealth v. Stephens, 231 Pa.Super. 481, 331 A.2d 719 (1974). However, a mere association between several alleged co-conspirators or their mere presence at the scene of the crime is not enough to establish that there has been a criminal conspiracy. Commonwealth v. Emmi, supra. Among the circumstances which are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred. Commonwealth v. Carter, 272 Pa.Super. 411, 416 A.2d 523 (1979).

Id., 309 Pa.Super. at 429, 455 A.2d at 685-86. “However, [w]hen two equally reasonable and mutually inconsistent inferences can be drawn from the same set of circumstances, the jury may not be permitted to guess which inference it will adopt. Commonwealth v. Hubbard, 472 Pa. 259, 270, 372 A.2d 687, 692 (1977).” Commonwealth v. Davis, supra, 312 Pa.Super. at 89-90, 458 A.2d at 250.

Herein, we conclude that the Commonwealth’s evidence, direct and circumstantial, fails to prove the existence of a conspiracy between the appellant and Gola. The conspiracy charge is premised upon an agreement between appellant and Gola to deliver a controlled substance to Byerly. The overt act alleged to have taken place is that “they directed ... Byerly to ... the residence of Karl Polzer in an attempt to obtain a controlled substance, however .... Polzer was not at home.”

The Commonwealth’s evidence does indeed indicate that the appellant accompanied Byerly, Kline and Gola to Polzer’s house, and that the appellant knew that Byerly and Kline sought to obtain methamphetamine. The evidence also indicates that appellant would himself be willing to obtain methamphetamine for Byerly and Kline sometime in the future. However, the evidence does not support the conclusion that the appellant made an agreement with Gola to attempt to procure methamphetamine from Karl Polzer for Byerly and Kline, or that he had any criminal intent in accompanying them. There is no indication that the appellant and Gola had engaged in any prior dealings concerning the sale of methamphetamine, a circumstance which would support the existence of a conspiracy. Commonwealth v. Cameron, 247 Pa.Super. 435, 372 A.2d 904 (1977); Commonwealth v. Stephens, 231 Pa.Super. 481, 331 A.2d 719 (1974). There are no statements of either the appellant or Gola concerning their association which would indicate any joint criminal intent to procure drugs. Moreover, there is absolutely no evidence that the appellant knew Polzer or had any prior dealings with him; nor is there evidence that the appellant was to participate in or profit from the transaction. The only evidence the Commonwealth presents is that the appellant got in the car and accompanied the others. According to the testimony of Byerly, it was Gola, not the appellant, who gave directions to Polzer’s house. Moreover, although Byerly testified that he did not know who told him Polzer was not home, Gola admitted that it was he who made that statement. (N.T. June 2, 1982, at 89).

To conclude, from the facts presented at trial, that the appellant and Gola conspired to attempt to deliver a controlled substance to Byerly and Kline is, in our opinion, mere speculation. Consequently, we must find the evidence was insufficient to sustain this conviction. Commonwealth v. Davis, supra; Commonwealth v. Lamb, supra.

Criminal attempt is defined at 18 Pa.C.S.A. § 901(a), which states: “A person commits a criminal attempt when, with intent to commit a specific crime, he commits any act which constitutes a substantial step toward the commission of that crime.” See, Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983). In Commonwealth v. Gilliam, 273 Pa.Super. 586, 417 A.2d 1203 (1980), this court stated:

The substantial step test broadens the scope of attempt liability by concentrating on the acts the defendant has done and does not any longer focus on the acts remaining to be done before actual commission of the crime. See: Toll, Pennsylvania Crimes Code Annotated, 217 (1974); White, The Inchoate Crimes Provisions of the New Pennsylvania Penal Code, 35 Pitt.L.Rev. 235, 237-42 (1973).

Id, 273 Super, at 589-590, 417 A.2d at 1205. Thus in Gilliam, the court held that the appellant, a prisoner, had committed an attempted escape by sawing completely through the window bars of his cell, and by fashioning a “hook” and “rope” from items in his cell. See and compare, Commonwealth v. Chance, 312 Pa.Super. 435, 458 A.2d 1371 (1983); Commonwealth v. Bryant, 282 Pa.Super. 600, 423 A.2d 407 (1980); Commonwealth v. Fierst, 257 Pa.Super. 440, 390 A.2d 1318 (1978). See generally, Model Penal Code, § 501(2).

According to the information and the evidence produced at trial, it is the Commonwealth’s contention that the appellant took a substantial step toward the delivery of a controlled substance by accompanying Byerly, Kline and Gola to Karl Polzer’s house. We disagree.

Again we note that there is no indication that the appellant took any role in directing the vehicle to Polzer’s house; in fact, the evidence indicates that he was merely a passive passenger. Moreover, there is no evidence that the appellant knew Polzer or had any prior dealings with him; nor is there any indication as to what role appellant was to play in the transaction. Additionally, since we have determined that the Commonwealth has failed to prove the existence of a conspiracy, the appellant is not liable for the acts of Gola.

Consequently, we conclude the evidence was insufficient to sustain a conviction on the charge of criminal attempt. We must therefore vacate the judgment of sentence imposed by the trial court. It is unnecessary to address appellant’s claims of ineffectiveness in light of our decision.

Judgment of sentence vacated.

Jurisdiction is not retained.

CERCONE, J., concurred in the result.

      . 18 Pa.C.S.A. § 901.

      . 18 Pa.C.S.A. § 903(a).

      . The Commonwealth reiterates the trial court’s determination that appellant’s claim of insufficiency was waived because appellant filed only boilerplate post-verdict motions. Since his post-trial motions were filed before our decision in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983), we shall review the merits of appellant’s claim.


author: MONTGOMERY, Judge:

text:
    478 A.2d 34
    Jeffrey A. GALLEGOR, A Minor, By his Parents and Natural Guardians, Joseph R. GALLEGOR and Clara J. Gallegor, his Wife, in Their Own Right, Appellants, v. Herman FELDER, M.D. and Children’s Hospital of Pittsburgh.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1984.
    Filed June 15, 1984.

      Michael J. Seymour, Pittsburgh, for appellants.
    John W. Jordan, IV, Pittsburgh, for Felder, M.D., appellee.
    George M. Weis, Pittsburgh, for Children’s, appellee.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

Plaintiff-Appellants file the instant appeal following the lower court’s grant of a compulsory non-suit, and the denial by the lower court en banc of a motion for the removal of the non-suit. The Appellants instituted this medical malpractice action to seek damages for the injuries sustained by the minor Plaintiff, Jeffrey A. Gallegor, during an ear operation, called a mastoidectomy, performed at the Defendant-Appellee, Children’s Hospital of Pittsburgh, by Defendant-Appellee, Herman Felder, M.D. The injuries, to the boy’s facial nerve, caused disfigurement, speech, eye and other problems and difficulties. The record shows that the compulsory non-suit was entered at trial, upon the motion of the Appellees, after the Appellants rested their case on the issue of liability. Several contentions of error are raised on this appeal by the Appellants.

First, it is argued that the trial court erred in entering a non-suit, as the available evidence allegedly made such an order improper. Initially, we must recognize the applicable and well-established rule that a compulsory non-suit may be entered only when the plaintiff cannot recover under any view of the evidence, with every doubt resolved against its entry and all inferences drawn most favorably to the plaintiff. Scott v. Purcell, 490 Pa. 109, 415 A.2d 56 (1980). Moreover, all conflicts in evidence must be resolved in the plaintiff’s favor in the consideration of a defense motion for non-suit. A.J. Aberman, Inc. v. Funk Building Corp., 278 Pa.Super. 385, 420 A.2d 594 (1980). The Appellants maintain that sufficient evidence was presented to support causes of action under theories of res ipsa locquitur and lack of informed consent. We shall examine each of these contentions.

In Gilbert v. Korvette, 457 Pa. 602, 327 A.2d 94 (1975), the Pennsylvania Supreme Court adopted the Restatement (Second) of Torts, Section 328D formulation of res ipsa locquitur. That Section provides:

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.

The Court further held in Gilbert that res ipsa locquitur is neither a rule of procedure nor one of substantive tort law. The Court stressed that it was only a short-hand expression for circumstantial proof of negligence — a rule of evidence. Six years later, in Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1981), the Court held that the doctrine of res ipsa locquitur may be applied in medical malpractice cases, declaring:

We are satisfied that expert testimony should no longer be a per se requirement in proof of negligence in all cases of alleged medical malpractice. Expert medical testimony only becomes necessary when there is no fund of common knowledge from which laymen can reasonably draw the inference or conclusion of negligence. Even where there is no fund of common knowledge, the inference of negligence should be permitted where it can be established from expert medical testimony that such an event would not ordinarily occur absent negligence. Restated, section 328D provides two avenues to avoid the production of direct medical evidence of the facts establishing liability: one being the reliance upon common lay knowledge that the event would not have occurred without negligence, and the second, the reliance upon medical knowledge that the event would not have occurred without negligence. 496 Pa. at 472-73, 437 A.2d at 1138.

In Jones, the Supreme Court also noted Comment d. from the Restatement (Second) of Torts, Section 328D, which explains how the rule functions in medical malpractice cases:

d. Basis of conclusion. In the usual case the basis of past experience from which this conclusion may be drawn is common to the community, and is a matter of general knowledge, which the court recognizes on much the same basis as when it takes judicial notice of facts which everyone knows. It may, however, be supplied by the evidence of the parties; and expert testimony that such an event usually does not occur without negligence may be essential to the plaintiffs case where, as for example in some actions for medical malpractice, there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion. On the other hand there are other kinds of medical malpractice, as where a sponge is left in the plaintiffs abdomen after an operation, where no expert is needed to tell the jury that such events do not usually occur in the absence of negligence. 496 Pa. at 473, n. 11, 437 A.2d at 1138, n. 11.

In the Jones case, the plaintiffs presented uncontroverted expert medical testimony which established that the harm suffered by the plaintiff did not ordinarily occur in the absence of negligence. In the instant case, no expert medical testimony to that effect was presented. Rather, the Appellants have merely asserted that there exists a fund of common knowledge from which the lay jury could conclude that the injury to Jeffrey Gallegor’s facial nerve would not ordinarily occur without negligence. The lower court explicitly rejected this contention, finding that there was no such fund of common knowledge from which laymen could infer negligence on the part of the Appellees in this case. We are constrained to agree.

It is certainly highly regrettable that Jeffrey’s facial nerve was damaged during the course of the operation. However, no inference of negligence arises merely because a surgical operation terminates in an unfortunate result which might have occurred even though the proper care and skill had been exercised. See Robinson v. Wirts, 387 Pa. 291, 127 A.2d 706 (1956). The operative reports presented by the Appellants and the testimony of an expert medical witness were highly technical and were largely in complicated medical terminology. As noted above, there was a complete absence of evidence to show that the harm which befell Jeffrey would not have occurred in the absence of medical malpractice, and the nature of the harm suffered in this case cannot be held to be so simple and obvious that a conclusion of negligence could reasonably or properly be reached by a layperson based upon ordinary experience and comprehension. This is simply not the equivalent of a situation in which a surgical tool is negligently left inside a person after an operation. Therefore, we find no basis to reverse the lower court’s action regarding the non-suit, based upon the Appellants’ res ipsa locquitur claims.

We next turn to the Appellants’ argument that the lower court erred in entering a non-suit because the Appellants . allegedly presented sufficient evidence to warrant submitting the case to the jury on the theory of lack of informed consent. The lower court refused to do so because allegations to support recovery on the theory of lack of informed consent were not pleaded by the Appellants. It is clear that the Appellants’ Complaint in this case only sought recovery based upon claims of negligence by the Appellees. Recovery under the theory of informed consent has a different basis, being derived from the concept of technical assault, and may be permitted even in an absence of negligence by the hospital or physician. Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971). Because the Appellants failed to assert such matters in their Complaint, we reject the claim that the lower court erred in not permitting the Appellants’ case to be decided by the jury on the informed consent theory of recovery,

Appellants next argue that the lower court erred in refusing to permit them to introduce into evidence portions of the operative reports of the surgery performed on Jeffrey on October 13, 1976. However, the record reveals that the reports were read to the jury with only the dates of their preparation deleted. The lower court determined that while the content of the reports was relevant, being the description of what took place during the operation, the dates on which the reports were prepared had no bearing on the issue of negligence. It is axiomatic that questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court, whose decision will not be disturbed absent a clear abuse of that discretion. Moreover, it is the trial court’s function to exclude evidence which would confuse the jury and divert their attention from the primary issues in a case. Feld v. Merriam, 314 Pa.Super. 414, 461 A.2d 225 (1983). We find that the lower court did not abuse its discretion by refusing to admit the operative reports into evidence, especially in view of the fact that their contents were read to the jury.

Last, the Appellants argue that the lower court erred in refusing to permit the Appellants to introduce portions of the deposition testimony of Jeffrey’s treating physicians into evidence during the trial. The record shows that prior to trial, the court had entered the following handwritten order in response to a defense motion, pursuant to Pennsylvania Rule of Civil Procedure 4003.5:

Order of Court
Plfs. shall by October 1, 1981 file and furnish defs. with expert reports for any expert witnesses whom they intend to call at trial. The Oct. 1, 1981 time may be extended only for good cause shown by motion filed prior to 10/1/81. Plfs. are be precluded from introducing as part of their case any expert testimony for which reports were not timely filed, [sic]

The lower court determined that the Appellants did not comply with this order nor apply for an extension of time within which to file expert reports. This finding by the lower court is not challenged as incorrect by the Appellants. We find no abuse of discretion or other error by the trial judge in his ruling on this issue, and reject the Appellants’ request for reversal based upon it. Compare Gill v. McGraw Electric Co., 264 Pa.Super. 368, 399 A.2d 1095 (1979).

The Judgment of the lower court is hereby affirmed.

      . We note that a subsequent operation, two years after the first, fortunately resulted in the restoration of much of the facial movement lost by Jeffrey Gallegor in the initial surgery.

      . Where a patient is mentally and physically able to consult about his condition, his informed consent is ordinarily a prerequisite to surgery by his physician. Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966).


author: CAVANAUGH, Judge:

text:
    478 A.2d 39
    COMMONWEALTH of Pennsylvania v. Christopher Daniel CONSTANTINE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1984.
    Filed June 22, 1984.

      Edward J. Bilik, Assistant Public Defender, Greensburg, for appellant.

      William J. McCabe, Assistant District Attorney, Greens-burg, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN, TAMILIA and JOHNSON, JJ.
   CAVANAUGH, Judge:

This is an appeal from judgment of sentence entered after a jury trial and verdict of guilty arising from a sale of cocaine to an undercover state police trooper.

Initially, appellant raises several issues concerning the conduct of the trial. However, after a thorough review of the record, we find these to be without merit and adequately disposed of in the opinion of the lower court.

Appellant also challenges the validity of his sentence, claiming that he received an extended term of imprisonment based on the sentencing court’s consideration of an impermissible factor; specifically, his refusal to cooperate by naming suppliers and customers in other drug transactions. The facts relevant to this issue are as follows: At appellant’s sentencing hearing it became clear that he had a long history of drug involvement, which included not only personal use but also large scale drug dealing. The sentencing court, especially concerned with appellant’s drug dealing, pressed him to reveal his “sources.” After reviewing the numerous drug sales detailed in appellant’s criminal record, the sentencing court stated:

I want to know what the source of your drugs are. You have not told me a name or person or place. If you want to, you are perfectly welcome to do it now, because if I ever considered any reason for any mercy for you, Mr. Constantine, it would be any cooperation you would give these police or this Court, law enforcement agencies as to the source of these drugs, because as far as I am concerned these police and their cases against you, and your record that indicates that you are the source of the drugs, and that is the reason I am considering a very heavy sentence for you in this case. I want you to know it up front before I pronounce sentence. Do you have any help to give this Court, these officials what the source of the various drugs [is]____ You want to make a pitch for mercy to me, you got your chance right now.

N.T. 8/31/81 at 51-53.

After receiving vague and evasive answers from appellant, the lower court continued:

You are making a very foolish mistake if you think I’m believing that because I am not. If you want to make a pitch for mercy, that’s the best your memory can serve you, then you have a problem.

N.T. 8/31/81 at 53.

After more unresponsive answers, the lower court stated:

[D]uring the sells of these drugs, you have indicated that your habit got to be quite expensive. Who were you selling these drugs to; what kind of drugs were you selling, tell me some of this?
who do you sell [the drugs] to?

N.T. 8/31/81 at 55-56 (emphasis added).

The lower court took the appellant’s vague and evasive answers to the foregoing questions as tantamount to a refusal to “tell the court ... where you got these [drugs] from and who you sell them to.” The lower court felt that this indicated a willingness to “go down with the ship.” N.T. 8/31/81 at 57. The court then imposed the maximum sentence of seven and one-half to fifteen years imprisonment, made consecutive to other sentences appellant was then serving. N.T. 8/31/81 at 68-69.

A sentencing court has broad latitude to inquire into the personal character and circumstances of the defendant. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Burtner, 307 Pa.Super. 230, 453 A.2d 10 (1982); Commonwealth v. Vernille, 275 Pa.Super. 263, 418 A.2d 713 (1980). In particular, a sentencing court may properly consider a defendant’s potential for rehabilitation. Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Parry, 306 Pa.Super. 390, 452 A.2d 781 (1982); 42 Pa.C.S. § 9721(b). One factor in gauging a defendant’s potential for rehabilitation is his or her manifestation of social conscience and responsibility through contrition, repentance and cooperation with law enforcement agencies. Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); Commonwealth v. Gallagher, 296 Pa.Super. 382, 442 A.2d 820 (1982).

However, while the scope of a sentencing court’s inquiry into a defendant’s character is necessarily broad, it is not without limitation and will not be permitted to infringe upon a defendant’s constitutionally guaranteed rights. Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977) (improper to consider exercise of right to jury trial as aggravating factor in imposing sentence); Commonwealth v. Pavlocak, 299 Pa.Super. 439, 445 A.2d 834 (1982) (improper to consider Fifth Amendment refusal to explain drunkenness at 8:30 a.m., in auto accident case as aggravating factor in sentencing); Commonwealth v. Staley, 229 Pa.Super. 322, 324 A.2d 393 (1974) (improper to consider refusal to plead guilty as aggravating factor in sentencing); Bertrand v. United States, 467 F.2d 901 (5th Cir.1972) (improper to consider Fifth Amendment refusal to answer questions concerning crimes not charged as aggravating factor in sentencing). See also, 42 Pa.C.S. § 5947, relating to grant of immunity where testimony is sought over a claim of privilege based on self-incrimination. Compare United States v. Roberts, supra (proper to consider refusal to cooperate in an investigation of charged crime, after confession and where no constitutional right implicated, as aggravating factor in sentencing).

In this case, the sentencing court’s testing of appellant’s character by seeking specific cooperation with law enforcement reveals that the sentencing process was being used not only to gauge his potential for rehabilitation but, coincidentally, as leverage to reveal his involvement in crimes not charged. Appellant’s recalcitrance was an obvious refusal to incriminate himself and was so understood by the sentencing court. Imposition of the maximum sentence compels the conclusion that an additional penalty may have been imposed because appellant stood on his constitutionally guaranteed privilege against self-incrimination. Since the sentencing court improperly considered appellant’s exercise of his privilege against self-incrimination in imposing the maximum sentence, we must vacate the judgment of sentence and remand for resentencing consistent with this opinion. Commonwealth v. Bethea, supra.

Judgment of sentence vacated, and the matter is remanded for resentencing before another judge.

      . Appellant was found guilty of possession of a controlled substance with intent to deliver and delivery of a controlled substance, Act of April 14, 1972, P.L. 233, No. 64, § 13(a), 35 P.S. § 780-113(a)(30); and criminal conspiracy, 18 Pa.C.S. § 903.

      . The Commonwealth, on appeal, argues that this claim has been waived because appellant failed to file a motion to modify sentence pursuant to Pa.R.Crim.P. 1410. However, the record unmistakeably reveals that such a motion was timely filed.

      . Although, as previously noted, appellant was found guilty of possession with intent to deliver, delivery and criminal conspiracy, these crimes were merged into the delivery charge for purposes of sentencing. Commonwealth v. Edwards, 302 Pa.Super. 522, 449 A.2d 38 (1982); N.T. 8/31/81 at 64-65.
      This case involves a delivery of cocaine, a schedule II, non-narcotic drug. Act' of April 14, 1972, P.L. 233, No. 64, § 2 "narcotic”, as amended, 35 P.S. § 780-102 "narcotic" (Supp.1984). Cf. Uniform Controlled Substances Act § 101(o), 9 U.L.A. 199 (1979) (cocaine specifically included in definition of "narcotic"). However, the court below appears to have sentenced appellant under Act of April 14, 1972, P.L. 233, No. 64, as amended, 35 P.S. § 780-113(f)(l) (Supp. 1984), 233, § 13(f)(1) relating to schedule II narcotic drugs and permitting the fifteen year maximum sentence imposed. Although not addressed by the parties or the court below, it appears that sentence should have been imposed under § 13(f)(2), relating to schedule II non-narcotic drugs and authorizing a maximum sentence of no more than five years imprisonment.

      . U.S. Const, amend. V; Pa. Const, art. 1, § 9.

      . Appellant raises two further issues:
      First, he argues that the Information was void because it was signed by a rubber stamp facsimile of the district attorney’s signature; however, since this issue was not raised in pre-trial motions, it has been waived. Commonwealth v. Veneri, 306 Pa.Super. 396, 452 A.2d 784 (1982); Pa.R.Crim.P. 306(e).
      Second, he argues that the sentence imposed was excessive; however, we need not reach this issue in light of our disposition.


text:
    478 A.2d 42
    FIRST PENNSYLVANIA BANK, N.A., Appellee, v. PEACE VALLEY LAKESIDE COMMUNITY AND AGRICULTURAL TRUST, INC., and Frank E. Elliott and Stephanie H. Elliott, his wife, and Upper Providence Town Center and Open Space Trust, Inc. Appeal of PEACE VALLEY LAKESIDE COMMUNITY AND AGRICULTURAL TRUST, INC. and Upper Providence Town Center and Open Space Trust, Inc. FIRST PENNSYLVANIA BANK, N.A., Appellant, v. PEACE VALLEY LAKESIDE COMMUNITY AND AGRICULTURAL TRUST, INC., and Frank E. Elliott and Stephanie H. Elliott, his wife, and Upper Providence Town Center and Open Space Trust, Inc.
    Superior Court of Pennsylvania.
    Argued March 28, 1984.
    Filed June 22, 1984.

      John A. Van Luvanee, Doylestown, for appellant in No. 3612 and for appellee in No. 3472.
    William G. Kozub, Doylestown, for appellants in No. 3472 and for appellees in No. 3612.
    Before BROSKY, WIEAND and McEWEN, JJ.
   McEWEN, Judge:

These cross-appeals have been taken from the order of the distinguished Judge Edward T. Biester, Jr., which established, pursuant to the provisions of the Deficiency Judgment Act, 42 Pa.C.S. § 8103 et seq., $385,000.00 as the fair market value of certain real property. We affirm.

The real property in question, an irregular tract composed of 68.922 acres and located in New Britain Township, Bucks County, was the subject of a mortgage agreement by Peace Valley Lakeside Community and Agricultural Trust Co., Inc. (Peace Valley), in favor of First Pennsylvania Bank (the Bank) as security for a loan in the amount of $410,000.00. Peace Valley defaulted on its mortgage obligation and the Bank, after it had confessed judgment against Peace Valley in the amount of $675,523.28, issued a writ of execution, and purchased the premises for costs when sold by the sheriff on July 10, 1981. After the Bank had assessed damages in the amount of $697,843.17, it petitioned the Court of Common Pleas to establish the value of the property as of the sale date. Both the Bank and Peace Valley have appealed from the conclusion of the court that the fair market value was $385,000.00.

Both parties dispute the market value ascribed to the property by the court. The Bank contends that the court, as it determined the value, improperly considered the potential for a change in the zoning classification of the property, while Peace Valley asserts that the sum is unduly low by reason of the failure of the court to provide adequate consideration of and weight to expert evidence upon the “highest and best use” of the property.

The scope of appellate review of this issue is, of course, limited to a determination of whether there is sufficient evidence to sustain the holding of the hearing judge, or whether the court committed reversible error of law. Union Nat. Bank of Pittsburgh v. Crump, 349 Pa. 339, 340, 37 A.2d 733, 734 (1944); Shrawder v. Quiggle, 256 Pa.Super. 303, 311, 389 A.2d 1135, 1139 (1978). Accord Cheltenham Federal Savings and Loan Assoc. v. Pocono Sky, 305 Pa.Super. 471, 474, 451 A.2d 744, 746 (1982). Although the Deficiency Judgment Act does not define the term “fair market value”, the appellate courts of this Commonwealth, when called upon to apply judicial scrutiny to fair market value from other perspectives, have defined the term as the price a purchaser, willing but not obligated to buy, would pay an owner, willing but not obligated to sell. P. & R.C. & I. Co. v. North’d Co. Com’rs., 323 Pa. 185, 186 A. 105 (1936) (tax assessment); Genztel Corp. v. Boro. of State College, 13 Pa.Cmwlth.Ct. 116, 124, 318 A.2d 415, 419 (1974) (condemnation proceeding). This formula must, of course, be tempered by recognition that, in instances arising under the Deficiency Judgment Act, “the actual situation is that of a ‘purchaser’ obliged to buy in, in order to protect the loan it made, and an ‘owner’ obliged to sell his property at Sheriff’s sale, because he is unable to pay his debt” and, therefore, the hearing court must consider “what reasonably the judgment creditor can get out of the property in partial or complete recapture of the loan and interest on loan ... .” Cheltenham Federal Savings and Loan Assoc. v. Pocono Sky, supra 305 Pa.Super. at 479-81, 451 A.2d at 748-49.

We first address the contention of the Bank that the hearing court erred when it considered the possibility of a change in zoning classification as an element of the fair market value of this property. While it is clear that evidence of increased value is inadmissible where the increase would result from a use proscribed by zoning regulations, the Pennsylvania Supreme Court established an exception to this principle when, during its review of an appeal by the Commonwealth in a condemnation proceeding, it stated:

Where the enactment of the zoning restriction is not predicated upon the inherent evil of the proscribed use— in other words, where the forbidden use is malum prohibitum rather than malum in se — and there is a possibility or probability that the zoning restriction may in the near future be repealed or amended so as to permit the use in question, such likelihood may be considered if the prospect of such repeal or amendment is sufficiently likely as to have an appreciable influence upon present market value. It follows from the foregoing that such possible change in the zoning regulations must not be remote or speculative.

Snyder v. Commonwealth, 412 Pa. 15, 18, 192 A.2d 650, 652 (1963), quoting 4 Nichols on Eminent Domain Section 12.322 (Rev. 3rd. Ed.1962) (footnotes omitted). The Snyder court concluded that the existence of a probable or possible zoning change, sufficient to have an effect on the market value, is a question of fact and that it need not be proven by direct testimony but may be established through evidence as to trends in the community, the best use of the land, and a need for the proposed use as well as by an inspection of the premises by the factfinder. Nonetheless, the Bank contends that the evidence presented by Peace Valley was not sufficient under the Snyder standards to permit the court to consider the potential zoning change as a factor in establishing the fair market value of this property.

The evidence established that the parcel was situated in a district zoned Agricultural-Recreation, a classification which permitted residential units only on lots of five or more acres and further provided for a maximum of ten such residential units per development. The hearing judge determined that electricity and telephone service were available to the subject property and that, while an exception to the environmental ban on connection to the sewer service had not been received, sewer as well as water service were technically and economically feasible. The expert appraiser presented by the bank testified that the fair market value of the parcel, if the permissible development of the parcel as a residential subdivision were undertaken, would be $207,000.00. Peace Valley presented a developer who proposed development of the parcel as a residential subdivision composed of 120 units, a proposal that, he testified, would be appropriate for the area and a plan that would be permitted in a district zoned (R-R) Residential. The expert appraiser for Peace Valley testified that the property was in the direct path of residential development in the township, that, even though adjacent properties were sparsely improved, there were housing developments in the area, and that there was a ready market for this type of development, a plan that he considered to be the best use of the tract. The appraiser proceeded to express the opinion that it was not likely that the municipality would reject an application for such a zoning change and the conclusion that, as a result, the fair market value of the property was $635,-000.00.

Our careful review of the entire record leads us to conclude that the hearing judge properly entered upon a consideration of the potential of a zoning amendment as a value factor and so carefully balanced this potential that we share the conclusion expressed in his able opinion “that under all of the circumstances the possibility of sewers and subsequent zoning change were not considerable on July 10, 1981, but were sufficient to have an influence, but a very small influence, on the property’s fair market value.” As a result, the appeal of the Bank must be rejected.

We also reject the assertion of Peace Valley that the hearing judge concluded that the highest and best use of the parcel was development as a residential subdivision of five (5) acre lots. We do not agree that the court so concluded. Rather, the hearing judge merely noted that such a development was a permissible use under the zoning ordinance then in effect. And while Peace Valley may have produced evidence that a development of 120 residential units would be the highest and best use of the property, the hearing judge was not bound to so find, much less be controlled by such a finding. While the notion of highest and best use has become an element for consideration in judicial determinations of fair market value in condemnation cases, see Shillito v. Metropolitan Edison Co., 434 Pa. 172, 173, 252 A.2d 650, 651 (1969); County of Luzerne v. Ceccoli, 75 Pa.Cmwlth Ct. 486, 487-488, 462 A.2d 354, 355 (1983), it is but one of several elements that enter into such a determination. The decision of the Pennsylvania Supreme Court in Union Nat. Bank of Pittsburgh v. Crump, supra, remains the landmark authority in deficiency judgment proceedings and, as the hearing judge noted, the Court there made clear:

Many elements properly enter into the determination of “fair market value”. Among these are recent sales of real estate of comparable location and description ____ Other factors of value include (1) the uses to which the property is adapted and might reasonably be applied (2) the demand for the property and similar properties, taking into consideration economic conditions which depress market value in its true sense and detrimentally influence such demand (3) the income produced by the property, including rents, and (4) generally, all elements which affect the actual value of the property and therefore influence its fair market value____

Id., 349 Pa. at 341, 37 A.2d at 735 (citations omitted). The findings of fact and discussion provided by the hearing judge in his able opinion demonstrate that he afforded careful consideration to all of the required elements. The record reveals ample evidence to support the conclusions upon which the trial judge based his determination that the fair market value of the subject premises was $385,000.00. As a result, we affirm.

Order affirmed.

      . The Deficiency Judgment Act provides that: "Any debtor, obligor, guarantor, mortgagor, and any other person directly or indirectly liable to the judgment creditor for the payment of the debt, and any owner of the property affected thereby, who is neither named in the petition nor served with a copy thereof or notice of the filing thereof as prescribed by general rule, shall be deemed to be discharged from all personal liability to the judgment creditor on the debt, interest and costs----” 42 Pa.C.S. § 8103(b). Frank E. Elliott and Stephanie H. Elliott had executed a personal guarantee of payment of the subject loan. Upper Providence Town Center and Open Space Trust Company agreed to post certain of its real estate as additional security for the obligation. Therefore, the petition of the Bank to establish fair market value also identified Frank E. Elliott and Stephanie H. Elliott, as well as Upper Providence Town Center and Open Space Trust Company, Inc., as respondents. The term "Peace Valley" refers throughout to all respondents.


author: JOHNSON, Judge: SPAETH, President Judge,

text:
    478 A.2d 45
    COMMONWEALTH of Pennsylvania v. Durell HOSKINS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1984.
    Filed July 6, 1984.
    Petition for Allowance of Appeal Denied Oct. 15, 1984.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Michael R. Cauley, First Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before SPAETH, President Judge and CAVANAUGH, BROSKY, ROWLEY, McEWEN, TAMILIA and JOHNSON, JJ.
   JOHNSON, Judge:

Following a counseled guilty plea to charges of aggravated assault and carrying a firearm without a license, appellant was sentenced to two and one-half to five years imprisonment on June 2, 1981. No direct appeal was taken, but on June 5, 1981 appellant filed a pleading with the trial court styled “Motion to Withdraw Plea of Guilty.” The motion was denied on July 7, 1981, following a brief hearing.

On this appeal, filed July 22, 1981, appellant seeks review of five issues, all related to the attempted plea withdrawal and sentencing. Because the appeal was not timely filed, the appeal will be quashed.

The proper disposition of this appeal requires an examination of the pleading filed by appellant three days after sentencing and styled “Motion to Withdraw Plea of Guilty.” The motion, in its entirety, sets forth the following:

MOTION TO WITHDRAW PLEA OF GUILTY
AND NOW, comes the Defendant, DURELL HOS-KINS, by and through his Attorneys, Evans, Johnson, Scarpitti, McCullough and Wittman, and hereby moves this Court to permit him to withdraw his previously entered plea of guilty in the above captioned matter, and in support thereof states:
1. The Defendant had previously entered a plea of guilty for the charges of aggravated assault and unlawful possession of a firearm at Information Number 1673 of 1980.
2. That plea was entered before the Honorable Judge Edward H. Carney in the Erie County Court of Common Pleas on January 13, 1981.
3. The Defendant was sentenced by Judge Carney on June 2, 1981.
4. The Defendant believes that the sentence imposed by this Honorable Court was excessive and unwarranted by any of the facts or circumstances of the case pending before the Court.
WHEREFORE, the Defendant respectfully requests this Court for permission to withdraw his previously entered plea and to list the case for trial during the next term of the Criminal Court of the Erie County Court of Common Pleas.

The first three numbered paragraphs of the motion contain nothing more than averments of fact relating to the history of appellant’s case. The fourth and remaining numbered paragraph does not raise any issue concerning the voluntariness of the guilty plea, but merely avers that the sentence imposed was “excessive and unwarranted.”

When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing, a showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified. Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973); see also, Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Siers, 318 Pa.Super. 215, 464 A.2d 1307 (1983). In the petition before us, appellant alleges no facts, nor does he even set forth conclusions of law, which would in any way warrant a challenge to the validity of the guilty plea pursuant to Pa.R.Crim.P. 321.

Our reading of the “Motion to Withdraw Plea of Guilty” leads us to the conclusion advanced by the Commonwealth on this appeal. The pleading is in reality a claim addressed to the sentencing court centering solely on the excessiveness of the sentence. It follows that the motion brings before the sentencing court nothing more than a motion to modify sentence, and must be viewed as having been filed pursuant to Pa.R.Crim.P. 1410.

We know that the headings prefixed to various parts of a statute shall not be considered to control but may be used to aid in the construction thereof. 1 Pa.C.S. § 1924. We also recognize that the title or headings prefixed to chapters of our civil procedural rules shall not be considered to control but may be used in the construction of such rules. Pa.R.C.P. 129. Although we have found no counterpart to Pa.R.C.P. 129 in the Rules of Criminal Procedure, we can think of no reason why a pleading which, by its averments, seeks to secure reconsideration of a sentence based on the claim of excessiveness of sentence should not be treated as a motion for reconsideration as provided by Pa.R.Crim.P. 1410. We are constrained to so treat the motion on this appeal.

An appeal to this court from a judgment of sentence must be filed within thirty days of its entry, Pa.R.A.P. 903(a), and such time limitations are to be strictly construed. Commonwealth v. Wilkinson, 260 Pa.Super. 77, 393 A.2d 1020 (1978). In Wilkinson, we held that the appeal was not properly before us because a petition for reconsideration does not extend the time for appeal from a judgment of sentence. 260 Pa.Super. at 79, 393 A.2d at 1021. Accord, Commonwealth v. Thompson, 277 Pa.Super. 267, 419 A.2d 765 (1980). See also Comment to Pa.R. Crim.P. 1410.

As in Wilkinson, the record in the appeal now before us reflects that appellant was advised during the sentencing hearing of the time for filing an appeal. Since the appeal was not timely filed, we are without jurisdiction to entertain it.

Appeal quashed.

SPAETH, President Judge, files a dissenting opinion.

SPAETH, President Judge,

dissenting:

I am unable to agree with the majority’s determination that appellant’s “Motion to Withdraw Plea of Guilty” was a motion to modify sentence. I should hold that the motion was a motion to withdraw the guilty plea. I should further hold that Commonwealth v. Villaloz, 303 Pa.Super. 518, 450 A.2d 47 (1982), was incorrectly decided, and that under Pa.R.A.P. 343 and Pa.R.A.P. 1701, appellant’s notice of appeal was timely filed with respect to both challenges to the guilty plea and challenges to the sentence.

-1-

On June 5, 1981, three days after sentencing, appellant filed a motion entitled “Motion to Withdraw Plea of Guilty.” In that motion appellant requested permission to withdraw his previously entered plea of guilty and further requested that the case be listed for trial. Appellant did not request that his sentence be modified.

On July 7, 1981, the trial court held a hearing on appellant’s motion, at which appellant was the only witness. At the hearing appellant’s attorney questioned appellant about his understanding at the time he pleaded guilty of the possibility that he could go to jail for up to 10 years. N.T. 4-5. The district attorney questioned appellant regarding the facts of the offense to which he had pleaded guilty. N.T. 5. At the conclusion of the hearing, the trial court found that appellant had not presented “any reasonable basis for allowing the withdrawal of the plea.” N.T. 6. The court further noted that appellant had waited until after sentencing to challenge the guilty plea and that the sentence imposed was “extremely lenient.” Id.

In concluding that appellant’s motion was a motion to modify sentence, the majority relies on the fact that the only reason appellant set forth to support his request for permission to withdraw his plea was that the sentence imposed was “excessive and unwarranted.” I agree that this is the only reason offered by appellant and that excessiveness of sentence does not alone amount to “prejudice on the order of manifest injustice [that] is required before withdrawal [of a guilty plea after sentencing] is properly justified.” Majority Opinion at 3. However, a motion to withdraw a guilty plea is not any less a motion to withdraw a guilty plea because the reasons offered in the motion are legally insufficient to support it. The motion was entitled a motion to withdraw a guilty plea; withdrawal of the guilty plea was the only relief sought in the motion; the hearing held addressed only whether appellant was entitled to withdraw his guilty plea; and the trial court disposed of the motion on the basis that appellant had not established his entitlement to this relief. I should therefore hold that appellant timely filed a motion to withdraw his guilty plea and that the timeliness of his appeal must be determined on that basis.

-2-

As the majority notes, Majority Opinion at 2 n. 4, reargument before the court en banc was scheduled so that the court could consider the proper interpretation of Pa.R.A.P. 343 and whether Commonwealth v. Villaloz, supra, was properly decided. However, the majority, relying on its interpretation of appellant’s motion to withdraw his guilty plea, now declines to undertake such consideration. I am unable to follow the majority in this course of action since in my view, as I have explained, its interpretation of appellant’s motion is contrary to the record.

Appellant appealed on July 22, 1981, within 30 days of the denial of his motion to withdraw his guilty plea (July 7, 1981). Appellant did not, however, appeal within 30 days of the imposition of sentence (June 2, 1981). On appeal, appellant challenges the validity of both his guilty plea and his sentence. In Commonwealth v. Villaloz, supra, a panel of this court was faced with the same situation. The panel considered only the appellant’s challenge to the validity of his guilty plea, holding that by not appealing within 30 days from the imposition of sentence, he had waived any challenge to the validity of the sentence. The panel stated that Pa.R.A.P. 343 extends the time for appeal only with respect to challenges to the guilty plea. Thus, here, under Villaloz appellant’s challenge to the sentence would be considered waived for failure to take a timely appeal. I believe that this court, sitting en banc, should hold that Villaloz was wrongly decided, and that under Pa.R.A.P. 343 and Pa.R. A.P. 1701 the time for taking an appeal, regardless of the issues raised, does not begin to run until the motion to withdraw the guilty plea is disposed of.

Pa.R.A.P. 343 provides:

If a timely motion has been filed pursuant to Rule 321 of the Pennsylvania Rules of Criminal Procedure (challenge to guilty plea), any appeal taken as of right shall be from the final order disposing of such motion. Such timely motion shall have the effect, for the purposes of Rule 1701(b)(3) (authority of lower court or agency after appeal), of an order expressly granting reconsideration of the judgment previously entered on the plea of guilty. (Emphasis added.)

The note to Rule 343 provides:

Pa.R.Crim.P. 321 provides a procedure whereby a timely motion challenging the validity of a plea of guilty, or the denial of a motion to withdraw a plea of guilty, shall be heard by the lower court. In such event, the time for filing an appeal from the judgment on the plea does not begin to run until such motion is decided by the lower court.
In the event an appeal from the judgment on a plea of guilty has been filed before a timely motion under Pa.R. Crim.P. 321 has been made, the filing of such motion acts as an automatic grant of reconsideration under Rule 1701(b)(3) (authority of lower court or agency after appeal), so as to render inoperative the prior appeal. In such event, an appeal could be filed anew after disposition of the Pa.R. Crim.P. 321 motion.
(Emphasis added.)

The rule expressly provides that any appeal shall be taken from the order disposing of the motion to withdraw the guilty plea. The rule does not make any distinction between appeals challenging the guilty plea and appeals challenging the sentence. The rule further provides that a timely motion to withdraw the guilty plea shall have the effect under Rule 1701(b)(3) of an order expressly granting reconsideration of the judgment previously entered, i.e., the judgment of sentence. Under Rule 1701(b)(3) a timely order granting reconsideration renders “inoperative” any notice of appeal “theretofore or thereafter filed” “with respect to the prior order,” i.e., the judgment of sentence.

Under the express terms of Rule 343 and Rule 1701(b)(3), therefore, any appeal must be taken from the order disposing of the motion to withdraw the guilty plea, and any notice of appeal filed before the motion is disposed of is rendered inoperative. The decision in Villaloz is therefore contrary to the express terms of the rules and should be overruled.

I should hold that appellant filed a timely motion to withdraw his guilty plea and that he timely appealed from the court’s denial of the motion.

      . 18 Pa.C.S. § 2702(a)(1).

      . Id. § 6106(a).

      . The first three issues all challenge the refusal of the trial court to permit guilty plea withdrawal on the grounds that (a) counsel failed to insure that the defendant understood the nature of the charges and failed to insure that the elements of the offenses were explained on the record in terms understandable to the defendant; (b) defendant’s belief that a probationary sentence plea bargain had been arranged rendered his plea involuntary; and (c) counsel did not investigate the case, prepare a defense, or file a suppression motion. The fourth issue combines a claim of sentence excessiveness with failure to articulate the reasons for the sentence on the record. The fifth issue asserts ineffective assistance of counsel in failing to file a motion for reconsideration, given the allegations contained in the fourth issue.

      . This appeal was first argued before a three-judge panel of this court on June 8, 1983. Believing that the case raised a question concerning the proper interpretation of Pa.R.A.P. 343, it was scheduled for reargument before the court sitting en banc on March 12, 1984. The parties, on reargument, also addressed the issue of whether the appeal had been timely filed.

      . In the very brief hearing on the so-called Motion to Withdraw Guilty Plea, appellant, the only witness, (a) testified to the circumstances surrounding the shooting of the victim, (b) acknowledged his understanding at time of plea tender of the maximum penalty for the offenses charged, and (c) testified to his own, unspecified illness while incarcerated. In denying the motion, the trial court said, inter alia:

      I believe that the Court was extremely lenient in imposing the sentence. The sentence could have been double that for the assault charge and I think we suspended the sentence on another charge and I see no reasonable basis for the withdrawal of the plea. I am going to refuse the motion. (N.T., July 7, 1981, page 6).
      Although we do not reach the merits of the trial court’s disposition of the motion, we find the trial judge’s remarks entirely consistent within a Rule 1410 context.

      . "Under this rule, the mere filing of a motion for modification of sentence and the court’s scheduling of a hearing on the motion do not affect the running of the thirty day period for filing a timely notice of appeal, and the need for the defendant to file his appeal (both as to the merits of the case or as to the sentence) within that period.”


author: WATKINS, Judge:

text:
    478 A.2d 50
    Thaddeus J. KWALICK, Jr., v. John Edward BOSACCO, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1982.
    Filed July 6, 1984.

      Nicholas J. Emper, Media, for appellant.
    Taras M. Wochok, Paoli, for appellee.

      Before JOHNSON, WATKINS and LIPEZ, JJ.
   WATKINS, Judge:

This case involves defendant-appellant’s appeal from an order of the court below which denied his motion for a declaratory judgment and injunctive relief.

Plaintiff, a former professional football player, filed a complaint in assumpsit against defendant, owner of the Philadelphia Bell professional football franchise, on December 8, 1976. In his complaint plaintiff alleged that the defendant owed him $230,000 with interest from November 11, 1975 because defendant breached a contract entered into with him for plaintiff’s services as a professional football player. After obtaining an extension of time in which to answer the complaint defendant filed his answer, new matter and counterclaim on March 28, 1977. On June 14, 1977 plaintiff notified defendant that he wished to proceed to arbitration to settle his dispute pursuant to Article Eight of the contract. On August 22, 1977 defendant filed a petition to amend its new matter to include the defense of Article Eight of the contract which mandated that all disputes arising under the contract be settled by binding arbitration. (In its original Answer defendant had raised this provision of the contract in Paragraph 8 of said Answer but had not raised it in its New Matter.)

On August 18, 1977 defendant had the court issue a rule to show cause why a declaratory judgment should not be entered against plaintiff for failing to invoke the binding arbitration provision of the contract within one year after the dispute between the parties arose. (Article 8.3 of the Contract provided that a demand for arbitration would be forever barred unless commenced within one year from the date when the dispute arose). Defendant asked that the court rule that plaintiff is barred from proceeding to arbitration because his request for same was not made until June 14, 1977.

On September 9, 1980 the court below held hearings on defendant’s request for declaratory judgment. On July 27, 1981, the court denied defendant’s request for declaratory judgment and further ruled that the resolution of the parties’ disputes be resolved by arbitration. From that order defendant appeals.

Defendant’s first argument is that plaintiff’s filing of the Complaint in Assumpsit constituted a waiver of his right to proceed to arbitration. However, a waiver of a right to proceed to arbitration pursuant to the term of a contract providing for binding arbitration should not be lightly inferred and unless one’s conduct has gained him an undue advantage or resulted in prejudice to another he should not be held to have relinquished the right. Nuclear Installation Services Company v. Nuclear Corporation, 468 F.Supp. 1187 (D.C.PA.1979). Moreover, the mere, filing of a complaint or an answer without resulting prejudice to the objecting party will not justify a finding of waiver of the right to arbitration. See Vespe Contracting Co. v. Anvan Corporation, 399 F.Supp. 516 (D.C.PA.1975). Thus, merely because plaintiff filed his Complaint in Assumpsit he is not automatically deemed to have waived his rights to proceed to binding arbitration as set forth in contract. In reviewing the facts of this case we note that plaintiff’s request for arbitration, filed on June 14, 1977, was filed before any of the depositions which were ultimately taken had been held. We also note that defendant had been the party who began the taking of depositions and that he had participated fully in all of them. At the time plaintiff’s request for arbitration was filed, the pleadings consisted only of plaintiff’s Complaint and defendant’s Answer, New Matter,' and Counterclaim. Defendant did not raise Paragraph Eight of the contract as an affirmative defense until February 22, 1978 when he filed amended New Matter. We also note that, although plaintiff did file a Certificate of Readiness for Trial, he did so only after our Supreme Court had issued its “240 day” directive which had the effect of coercing plaintiff to file the certificate under pain of losing his cause of action for failure to do it. Under these circumstances we cannot hold that plaintiff waived his right to arbitration by filing his action in assumpsit prior to filing his request for arbitration. Defendant has shown no prejudice to him nor has he shown any undue advantage gained by plaintiff. Thus, we hold that the lower court ruled correctly when it denied defendant’s request for declaratory judgment.

Next, defendant argues that since plaintiff did not file his request for arbitration until June 14, 1977 that he should not be permitted to invoke the arbitration provisions of the contract because the request was untimely. This issue is one involving the interpretation of the contract and its resolution is for the arbitration process to determine. In Muhlenberg Township School District v. Pennsylvania Fortunato Construction Co. 460 Pa. 260, 333 A.2d 184 (1975) it was decided that the issue as to whether a demand for arbitration was timely is one of interpretation of the agreement and not one of the existence or the scope of the arbitration provision and, thus, was one for the arbitration process to decide. Thus, the court below correctly held that this issue is one for arbitration.

Finally, defendant contends that the court below should have made his rule to show cause why the declaratory judgment should not be entered absolute because plaintiff failed to file an answer to the rule to show cause. Delaware County Civil Rule 251, cited by defendant as authority for the proposition that the rule should have been made absolute, states that if no answer to a rule to show cause is timely filed the Court may enter an order making the rule absolute. (Emphasis-ours). The use of the word “may” in the wording of the rule of court indicates that the court below had the discretion to either make the rule absolute or not to do so. In this case the court below chose not to do so. We do not hold that the court abused its discretion in holding as it did especially when one considers the fact that defendant’s original answer to plaintiff’s complaint contained an averment raising the existence of the arbitration clause and now defendant is attempting to avert the arbitration process.

Order affirmed.