author: WIEAND, Judge: BROSKY, Judge,

text:
    445 A.2d 804
    COMMONWEALTH of Pennsylvania v. Carol PAYNE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 2, 1981.
    Filed May 14, 1982.

      Jeffery M. Cook, Assistant Public Defender, Harrisburg, for appellants.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

Carol Payne was tried nonjury and convicted of theft by unlawful taking. On direct appeal, after post trial motions were denied and sentence imposed, she argues that the evidence was insufficient to support the conviction. We disagree and affirm the judgment of sentence.

In determining the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the fact finder could properly have based the verdict, and then determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Stockard, 489 Pa. 209, 212-213, 413 A.2d 1088, 1090 (1980); Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979); Commonwealth v. Johnson, 273 Pa.Super. 14, 17, 416 A.2d 1065, 1067 (1979). The Commonwealth is not required to prove guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence; but guilt must be proven and may not rest upon mere suspicion and surmise. Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973); Commonwealth v. Reed, 276 Pa.Super. 467, 469, 419 A.2d 552, 553-554 (1980); Commonwealth v. Cichy, 227 Pa.Super. 480, 482-483, 323 A.2d 817, 818 (1974). It must be remembered, moreover, that it is the province of the trier of the facts to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The fact finder is free to believe all, part or none of the evidence. Commonwealth v. Stockard, supra; Commonwealth v. Tate, supra; Commonwealth v. Hinchcliffe, 479 Pa. 551, 556, 388 A.2d 1068, 1071, cert. denied 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978); Commonwealth v. Yost, 478 Pa. 327, 332, 386 A.2d 956, 959 (1978); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975).

When viewed in the light most favorable to the Commonwealth, the evidence establishes the following fact pattern. On the evening of June 18,1980, appellant encountered Juan Martinez in a Harrisburg tavern. Appellant explained that she had been experiencing difficulty with her landlord and needed a new place to live. Martinez, who had been an acquaintance of appellant for almost fifteen years, invited appellant to stay at his apartment. The invitation was accepted, and the same night appellant went with Martinez to the latter’s apartment. There appellant was shown the apartment and, specifically, the cameras and photographic equipment which appellant kept in a closet of his bedroom.

Upon awakening the following morning, Martinez observed that appellant was still sleeping and left the apartment without waking her. When he did so, he locked the doors to the apartment and took the only keys with him. Appellant had no keys; and no one else had keys. When Martinez returned later on the same day the doors were still locked. Appellant, however, was gone, and so were cameras and photographic equipment having an estimated value of $1,500. There had been no forcible entry made to the apartment. That evening, without any communication with Martinez, appellant returned to and resumed occupancy of her own quarters.

Appellant testified on her own behalf. Her testimony precluded the possibility that a third person had entered the apartment at her invitation while Martinez was absent. She said that she had slept until after noon, when she decided to return to her own apartment. Upon departing the Martinez apartment, she said, she left the doors unlocked. However, the trial judge, as trier of the facts, did not believe this testimony. On the contrary, he expressly rejected it on the grounds that it was not credible. He also rejected appellant’s contention that another, unidentified person might have entered the apartment and removed the cameras and equipment after appellant had returned to her own apartment.

The evidence found credible by the trial judge, although circumstantial, was sufficient to prove appellant’s guilt beyond a reasonable doubt. It was not proof merely of presence, as appellant contends, but proof of circumstances which eliminated all persons other than appellant as the possible thief. She and she alone, according to the Commonwealth’s evidence, was inside the apartment, had access to the photographic equipment and an opportunity to remove the same. No one else could have entered the apartment without forcibly breaking into it, and this, according to the evidence, did not occur.

The decision in Interest of Wood, 277 Pa.Super. 606, 419 A.2d 1316 (1980), is not apposite. In that case, the Commonwealth showed only “opportunity” for the juvenile to take keys to his father’s car. This was held insufficient to show that the juvenile was the thief, because the circumstantial evidence did not eliminate the possibility that the keys had been taken by another. See also and compare: Commonwealth v. Roach, 260 Pa.Super. 261, 393 A.2d 1253 (1978). In the instant case, however, the possibility that another may have taken the photographic equipment was eliminated by the evidence. The only person other than the owner who had access to and an opportunity to take the cameras and equipment was appellant.

From the credible evidence accepted by the trial judge, the only logical inference to be drawn was that appellant took the equipment. As such, she was properly found guilty of theft by unlawful taking.

The judgment of sentence is affirmed.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I dissent.

We said in In Re Amos, 287 Pa.Super. 446, 449, 430 A.2d 688, 689-690 (1981):

In determining on appeal whether evidence is sufficient to sustain a criminal conviction, we view the evidence, and all inferences reasonably drawn therefrom, in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Horne, 479 Pa. 496, 388 A.2d 1040 (1978). Speculation and conjecture, however, will not support a conviction. Commonwealth v. Turner, 270 Pa. Super. 58, 61, 410 A.2d 895, 897 (1979); Commonwealth v. Holguin, 254 Pa.Super. 295, 385 A.2d 1346 (1978); Commonwealth v. Navarro, 251 Pa.Super. 125, 380 A.2d 409 (1977).

See also Commonwealth v. Wiley, 288 Pa.Super. 397, 432 A.2d 220 (1981).

The evidence in the instant case so viewed reveals that on the evening of June 18,1980, Juan Martinez, who had known Payne for some time, encountered Payne. She explained to him that she had experienced some difficulty with her landlord which necessitated her residing at a new location. Martinez offered to share his apartment with her for the night and indicated he might be able to rent a room in his apartment to her. At his apartment, he provided her a tour. Payne conducted another tour of the premises sometime later that evening.

Martinez possessed and housed in his apartment photographic equipment. The record discloses that Payne was shown the equipment in her guided tour and observed it somewhat later in her supplemental tour. Sometime later, Martinez and Payne each retired.

The following morning, Martinez awoke and prepared to leave for work around 6 a. m. Before leaving, he attempted to awaken Payne. She did not respond. Martinez left for work, locking two doors behind him and taking the only set of keys with him. That evening, Martinez returned home to find the door locked, no evidence of a forced entry, Payne gone, and his photographic equipment missing. The equipment was valued at an amount over $1,000.

Payne stated that she left the apartment at about 1 p. m. to go to her apartment to eat and change her clothing. She stated that when she left Martinez’s apartment she left the doors unlocked. Payne did not return to Martinez’s apartment that evening.

On June 20, 1980, Martinez sought out and confronted Payne. He accused her of taking his photographic equipment and told her he would give her a week to return it or he would press charges. Payne responded, according to Martinez’s testimony, that he could do what he wanted. The record discloses that Payne described this incident in the following manner:

Q. When was the next time you saw Mr. Martinez?
A. I believe it was that same evening.
Q. What did you tell him?
A. I spoke to him and he said, “You have a lot of nerve,” and he started yelling at me about some stuff that was missing out of his place. And at first I started laughing but then he was getting ridiculous with it and started calling me names and stuff and I told him I got tired of it and I told him I didn’t care what he did, what he had to say, I didn’t take anything out of his place, I just left and that was it.

Payne was arrested and charged with the theft of Martinez’s photographic equipment on July 24, 1980. No equipment was found in her possession. No eyewitness to the crime was produced at trial.

In Commonwealth v. Smith, 490 Pa. 374, 377, 416 A.2d 517, 518 (1980), our Supreme Court said:

We agree that mere presence at the scene of the crime, standing alone, does not establish complicity. Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976); Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966). What does satisfy the quantum of proof necessary to convict is the combination of factors present pointing to appellant’s active participation in this crime.

The evidence in Commonwealth v. Smith, supra, incriminated Smith because his car was used in the crime. From this fact, his presence was inferred. Additionally, the record disclosed that Smith had no awareness of the fact that the car was taken. There was no evidence that the car was started without an ignition key. Furthermore, the car was returned to Smith and parked in the identical parking space from which it was allegedly taken. And, finally, Smith sold the car the day after the crime had taken place and insisted upon receiving new registration plates. See also: In Re: Amos, supra, (only evidence connecting appellant to the crime was standing at a corner a short distance from the perpetration of the crime); Commonwealth v. Beauford, 286 Pa.Super. 297, 428 A.2d 1000 (1981), (mere presence at scene of crime plus fleeing from scene presented the court insufficient evidence.)

The critical facts in this case which supplied the court with evidence other than Payne’s presence at the crime are:

1. Payne did not return to the apartment on June 19, 1980, though she had claimed that she was unable to use her apartment the previous night because of problems with her landlord.
2. When Martinez confronted Payne and demanded his photographic equipment be returned Payne told Martinez he could do whatever he wanted to do.
3. That Martinez left his apartment at 6:00 a. m., with the photographic equipment stored therein and that he returned between 7:30 and 8:30 p. m. and the equipment was gone.
4. The fact that Payne did not wake in the morning when Martinez attempted to do so.
5. When Martinez returned to the apartment and there was no evidence of a break in.

I am satisfied that Payne could have remained at her apartment on the night of June 19, 1980. While the record does not indicate clearly what the nature of the dispute she had with her landlord, there is testimony to the effect that she expected to be evicted within a short time after June 19, 1980. However, there is no evidence indicating why she was to be evicted. I am unable to determine whether the reason for Payne’s desire not to stay at her apartment on the 19th of June was because of some irreconcilable difference with her landlord or whether the dispute was a purely ephemeral one arising shortly before her possible eviction, or still whether Payne was simply upset about her apartment situation and desired to stay at Martinez’s apartment that evening for that reason alone and for that night only. While there is evidence that she and Martinez discussed her renting a room from him there is no indication that they had resolved that question in their minds or that if they had that Payne would have necessarily spent the night of the 19th of June at Martinez’s apartment. Payne testified that she did not return to Martinez’s apartment on that evening because she had guests who arrived at her apartment some time after she had eaten and bathed. This evidence is consistent with the explanation she gave for leaving Martinez’s apartment on the afternoon of the 18th of June. Thus, the act of staying at her apartment on the 19th of June was consistent with her innocence.

Payne’s reaction to Martinez’s confrontation with her about the equipment clearly was not inconsistent with her innocence Martinez testified that she said that he could do whatever he wanted. Payne stated that she had told Martinez he could do whatever he wanted after telling him that his claims were ridiculous and that she hadn’t taken the equipment. I find this evidence ambiguous at best. Furthermore, I do not find that the lapse in time of thirteen and one-half or fourteen and one-half hours from the time Martinez léft his apartment and returned was indicative of Payne’s guilt. I am also unable to find that the apparent fact that Payne is a very sound sleeper was relevant to her guilt or innocence. Clearly, had Martinez succeeded in waking Payne he would have said goodbye to her or some other such conversation from which I would be unable to find any evidence probative of her guilt. Similarly, I do not find the evidence concerning the locked or unlocked doors persuasive.

Martinez testified when he left his apartment for work on June 18, 1980, he locked two doors, one entering his apartment building and the one entering his apartment. He stated he alone had keys to the doors. Payne testified that she departed from apartment at 1 p. m. She said she left the doors unlocked and did not return. Martinez stated that when he returned to the apartment the doors were locked. Payne posed the theory that whoever stole the photographic equipment entered the apartment through the unlocked doors, took the equipment and then exited, locking the doors behind him.

I am unable to determine from the record precisely what types of locks were placed on the doors entering Martinez’s apartment building and his apartment. Clearly, the locks were not the sort that require a key to lock or unlock. If that were the case, Payne would have had no manner to exit the building if the doors were locked when Martinez left for work. The locks were not of a kind that could be opened without a key from the inside but only locked with a key from the outside. If this were the case, then the door to the apartment would not have been locked when Martinez returned home. The record does not disclose whether there were other apartments in this building. If there were, a person living in one of those apartments could have left the building and locked the door behind him. Then again, the doors could have been the kind which can be locked from the outside and yet be opened from the inside. Such locks often operate in a fashion such that the door if closed will lock behind the person who opened it. In this case, Payne could have left the apartment and building thinking the doors were locked when they had actually locked behind her. It is also possible, though unlikely, that the doors were unlocked by Payne and a person entered the apartment and locked the doors as he left the apartment. My difficulty is that the record contains no evidence which would indicate how the locks operated on the doors in the building or apartment. Payne states that she left both doors unlocked. This evidence is not inconsistent with a finding of her innocence depending upon the types of locks present on the doors.

Accordingly, while I recognize that our scope of review is limited, Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975), I would reverse the judgment of sentence of the trial court. I am unable to determine from the evidence of record that the trial court was able to hold that Payne’s guilt was proven beyond a reasonable doubt absent conjecture or speculation.

      . 18 Pa.C.S. § 3921.

      . I note that the notes of testimony in the instant case total 17 pages. The only evidence presented was that of Martinez, Payne and a police officer. There is no discussion at any point in the record concerning the nature of the locks on the doors of the apartment or building. It is also difficult to determine the nature of the building in which Martinez lived.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    445 A.2d 809
    Michael M. CIANCI and Mary E. Cianci, Appellants, v. Ralph BURWELL, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1982.
    Filed May 14, 1982.

      Eugene A. Spector, Philadelphia, for appellants.
    Edward J. Marcantonio, Philadelphia, for appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

On November 11,1974, Michael M. Cianci was a passenger in a vehicle being operated by John Fritz in a northerly direction on Roosevelt Boulevard in Philadelphia. As the vehicle slowed for a traffic signal at Comly Road, it was struck in the rear by a vehicle being operated by Ralph Burwell. An action in trespass to recover for injuries sustained by Cianci was commenced against Burwell and, upon trial before a jury, produced a verdict for the defendant. A motion for new trial on the grounds that the verdict was against the weight of the evidence was denied, judgment was entered on the verdict, and this appeal followed.

A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion. Neither should it ordinarily be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury could have found for either party. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 289, 265 A.2d 516, 518 (1970); Carroll v. Pittsburgh, 368 Pa. 436, 445-46, 84 A.2d 505, 509 (1951); Denby v. North Side Carpet Cleaning Co., 257 Pa.Superior Ct. 73, 79, 390 A.2d 252, 255 (1978). A new trial should be awarded on the ground that the verdict was against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice, and the award of a new trial is imperative so that right may be given another opportunity to prevail. Burrell v. Philadelphia Electric Co., supra; Denby v. North Side Carpet Cleaning Co., supra. See also Brown v. McLean Trucking Co., 434 Pa. 427, 429-30, 256 A.2d 606, 607 (1969); Jones v. Williams, 358 Pa. 559, 564, 58 A.2d 57, 60 (1948).

“The grant of a new trial is within the sound discretion of the trial judge, who is present at the offering of all relevant testimony, but that discretion is not absolute; this Court will review the action of the court below and will reverse if it determines that it acted capriciously or palpably abused its discretion.” Austin v. Ridge, 435 Pa. 1, 4, 255 A.2d 123, 124 (1969). See also Burrell v. Philadelphia Electric Co., supra 438 Pa. at 288-89, 265 A.2d at 517.

Appellee argues that the mere happening of a rear end collision does not constitute negligence as a matter of law on the part of the operator of the vehicle in the rear. This, of course, is correct. The burden is on the plaintiff to prove such negligence. Cirquitella v. C. C. Callaghan, Inc., 331 Pa. 465, 200 A. 588 (1938); Floravit v. Kronenwetter, 255 Pa.Superior Ct. 581, 389 A.2d 130 (1978). However, the manner in which an accident occurs is a circumstance to be considered in determining the issue of negligence. Where, as here, a vehicle has been struck in the rear while slowing for a traffic signal, there is an inference to be drawn that the driver of the offending vehicle either was not sufficiently vigilant or failed to have his vehicle under such control that he could bring it to a stop within the assured clear distance ahead. See Antolik v. Kerstetter, 278 Pa.Superior Ct. 55, 419 A.2d 1353 (1980). See also Eckels v. Klieger, 205 Pa.Superior Ct. 526, 210 A.2d 899 (1965); Meek v. Allen, 162 Pa.Superior Ct. 495, 58 A.2d 370 (1948).

In the instant case, the defendant-appellee’s own testimony confirmed his negligence. His explanation for the accident was as follows:

Well, as he was approaching an intersection, I believe he could have made the green light. But he stopped suddenly, and that is what made me run into the back of his car

The plaintiff-appellant was a guest passenger, and there was no evidence from which a finding of contributory negligence could have been made. It is difficult to comprehend, therefore, how a jury could have returned a verdict for the defendant-appellee. Such a verdict is truly shocking to one’s sense of justice; and the trial court abused its discretion when it refused to award a new trial.

Reversed and remanded for a new trial.

      . We express no opinion regarding the nature or extent of the personal injuries, if any, caused to plaintiff-appellant as a result of the accident. It may be, as appellee contends, that the jury disbelieved appellant’s evidence regarding back injury and cervical strain. However, he “was nevertheless entitled to recover the expenses he incurred for medical examinations to determine whether he had been injured in the accident.” Macina v. McAdams, 280 Pa.Superior Ct. 115, 120, 421 A.2d 432, 434 (1980). He was also entitled to recover the value of or cost of replacing his false teeth which, without contradiction, were broken in the accident.


author: BECK, Judge:

text:
    445 A.2d 811
    Harry BUDZICHOWSKI and Julia Budzichowski, h/w, Appellants, v. The BELL TELEPHONE COMPANY OF PENNSYLVANIA, Melvin J. Chisum, M.D., Peter J. Devine, M.D. and William L. Dyson, M.D., Daniel Pisavo, D.O., participating party, Leonard Caminitz, D.O., participating party.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1981.
    Filed May 14, 1982.
    Petition for Allowance of Appeal Granted Sept. 15, 1982.

      George F. Schoener, Jr., Philadelphia, for appellants.
    John J. Leonard, Philadelphia, for Bell Telephone, Chisum, and Devine, appellees.

      William F. Sutton, Philadelphia, for Dyson, appellee.
    William V. Coleman, Philadelphia, for Pisavo, participating party.
    Jay J. Lambert, Philadelphia, for Caminitz, participating party.
    Before SPAETH, BECK and LIPEZ, JJ.
   BECK, Judge:

This appeal arises from a September 12, 1980 order granting appellees’ motion for summary judgment. Appellant-husband, Harry Budzichowski, fell December. 9, 1974 when he was attacked by a dog while on the job as a telephone installer. He reported to appellees Melvin J. Chisum, M.D. (“Chisum”) and Peter J. Devine, M.D. (“Devine”) who were employed by appellee Bell Telephone Company of Pennsylvania (“Bell”) in its medical dispensary. Appellee doctors diagnosed appellant’s injury as “hip strain” and possible “inguinal strain.” The doctors gave appellant muscle relaxers, and he reported back to work.

In August, 1975, appellant consulted an orthopedic surgeon, who was not affiliated with Bell. That surgeon took x-rays and informed appellant that they revealed “aseptic necrosis” in the right femoral head. Plaintiff underwent a bone graft on his right femur.

Appellants, Henry and Julia Budzichowski, filed a complaint in trespass to recover personal injuries incurred by Harry Budzichowski when defendant doctors negligently diagnosed injuries resulting from a work-related incident. They named the two doctors and Bell Telephone as defendants.

The three defendants filed a motion for summary judgment alleging that: 1) Ghisum and Devine are full-time employees of Bell and are immune from personal liability under Section 205 of the Pennsylvania Workmen’s Compensation Act (“Act”), and 2) Bell is immune from liability under Section 303 of the Act, 77 P.S. § 481(a), since it is an employer.

The lower court granted summary judgment in a September 12, 1980 order. On October 1, 1980, Harry and Julia Budzichowski appealed from that order.

Appellants first claim that appellees Chisum and Devine were not immune from liability as fellow employees under Section 205 of the Act when they committed malpractice. That provision provides:

If disability or death is compensable under this act a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.

(Emphasis added.)

This court in Babich v. Pavich, 270 Pa.Super. 140, 144, 411 A.2d 218, 220-221 (1979) discussed the considerations in resolving the question of whether a full-time plant physician was “in the same employ” under the Act:

“In ascertaining whether a person is an employee or an independent contractor, the basic inquiry is whether such person is subject to the alleged employer’s control or right to control with respect to his physical conduct in the performance of the services for which he was engaged. ...” Green v. Independent Oil Co., 414 Pa. 477, 483, 201 A.2d 207, 210 (1964) (footnote omitted). An employer-employee relationship may be found even though “a particular occupation may involve such technical skill that the employer is wholly incapable of supervising the details of performance.” Potash v. Bonaccurso, 179 Pa.Super. 582, 588, 117 A.2d 803, 806 (1955).
The Pennsylvania appellate courts have not previously decided whether a full-time salaried plant physician is “in the same employ” as a plant employee for purposes of section 205. Appellate courts in other jurisdictions facing this issue have held that the defendant plant physician is immune from civil liability because he is “in the same employ” as plaintiff under the Workmen’s Compensation Act.

Appellants argue that since Bell could not control in any meaningful way the work of these doctors, they would fall under the rubric of “professional independent contractors” and would not be protected against a malpractice suit by the Act. The Babich court specifically held that physicians in the same situation were not independent contractors:

Although the record does indicate that Bethlehem does not control the manner and method of treating patients, this fact alone is not controlling in determining whether appellee is an employee or independent contractor. The following facts point to the conclusion that appellee is an employee rather than an independent contractor: he worked for Bethlehem on a full-time basis; Bethlehem paid him a fixed salary and did not allow him to engage in private practice; his fringe benefits were the same as those received by Bethlehem’s supervisory employees; and Bethlehem controlled the hours and number of days that appellee worked.

Id., 270 Pa.Superior Ct. at 145, 411 A.2d at 221. All of the above factors save one are present in the instant case. That missing factor is a prohibition against engaging in an outside practice. The absence of this factor, appellant alleges, “would militate against the entry of summary judgment.” The significance of the fact that appellee doctors were not prevented by official company policy from engaging in outside practice eludes us, and we note that nothing in the record demonstrates that they practiced medicine elsewhere. The record does reflect, however, that appellee doctors did work a forty hour week in Bell’s employ. Also, the physicians in Babich were under no supervision by others in the medical profession. In the instant case, Chisum and Devine were supervised by a Bell director who was also a physician. He had authority to remove patients from the care of physicians in the dispensary. Thus, we find the case for finding the physicians to be employees rather than independent contractors to be even stronger here than in Babich.

Next, appellants contend that the Act does not bar their claim against Bell because the injuries appellant-husband sustained did not arise “in the course of his employment.” Appellants argue that since the injuries arose from the malpractice of the company physicians, they were new injuries not covered by the Act. The question, as presented by appellants, is whether a condition that results from negligent treatment of a compensable injury precludes liability outside of the Act. They argue that the causal link is too attenuated to be covered under the Act.

The Pennsylvania Supreme Court answered that question in Workmen's Compensation Appeal Board v. Ira Berger & Sons, 470 Pa. 239, 368 A.2d 282 (1977) by holding that where a subsequent injury is caused by negligent treatment, it is compensable under the Act. It quoted Hurchick v. Falls Twp. Bd. of Supervisors, 32 Pa.D. & C.2d 729, 734-36, affirmed per curiam on the opinion of the court below, 203 Pa.Super. 1, 198 A.2d 356 (1964):

“Where claimant in good faith seeks medical treatment for his injury, and the medical treatment itself either aggravated the existing injury or causes new or additional injury, the law regards the latter as having been caused by the original accident.”

Berger & Sons, 470 Pa. at 243, 368 A.2d at 284 (emphasis in original).

Appellants claim that Bell was acting, when the negligence was committed, not as employer, but rather in its “dual capacity” as provider of health care. Appellants cite Dean Larson’s treatise on workmen’s compensation law:

Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.

2A Larson, Workmen’s Compensation Law, Section 72.80, p. 14-112 (1976). Judge Hoffman applied the above doctrine in Tatrai v. Presbyterian University Hospital, 284 Pa.Super. 300, 425 A.2d 823 (1981), petition for allowance of appeal granted. In that case, an operating room technician became sick while at work and was directed by her supervisor to seek treatment in the hospital’s emergency room. In addition, she was billed for those services. Ill or injured hospital employees were ordinarily treated, as a matter of policy, in the free Employee Health Service. Judge Hoffman, in his dissent, distinguished this situation from cases in which an employee injures herself while at work and is treated in the company health care clinic where the attending physicians aggravate the initial injury:

In those circumstances, the injured employee cannot bring a common law action against his employer. That result is proper because the only duties owed are those of employer to employee, and there is no reciprocal expectation on the part of the parties that the employer would provide the medical services to the employee absent the employment relationship. See D'Angona v. County of Los Angeles, 27 Cal.3d 661, 668 n.6, 613 P.2d 238, 243 n.6, 166 Cal.Rptr. 177, 182 n.6 (1980); Garcia v. Iserson, 33 N.Y.2d 421, 423, 309 N.E.2d 420, 421-422, 353 N.Y.S.2d 955, 957 (1974). In this case, however, the employer holds itself out to the public as a provider of medical services. Consequently, the parties now occupy different roles and the employer assumes new duties, which I believe, are enforceable in an action at law.

Id., 284 Pa.Super. at 307-308, 425 A.2d at 827 (footnote deleted). We agree with Judge Hoffman’s assessment of the “dual capacity” argument. In the instant case, appellant-husband could not have entertained any such expectation that Bell would provide medical services to him were he not employed there. This case is thus distinguishable from the facts in Tatrai. Here the liability of Bell for the negligence of Chisum and Devine is circumscribed by the Act.

Appellants contend finally that there was no “agreement” by Bell to accept liability under the Act. Appellees did allege in their motion for summary judgment, however, the exclusiveness of remedy under the Act. We note that 302(a) of the Act, 77 P.S. § 461, stated a conclusive presumption that the parties “have agreed to be bound [by the Act], unless there be, at the time of the making, renewal, or extension of such contract, an express agreement in writing from either party to the other, that the provisions of .. . this act are not intended to apply....” In addition, appellants did not raise the issue in their pleadings and accordingly waived it. “Plaintiffs failure to plead that the act had been duly rejected was tantamount to pleading that the parties had accepted the act as a part of the employment contract.” Hyzy v. Pittsburgh Coal Co., 384 Pa. 316, 319, 121 A.2d 85, 87 (1956) citing Capozzoli v. Stone & Webster Eng. Co., 352 Pa. 183, 42 A.2d 524 (1945).

Appellants’ exclusive remedy is that provided under the Act. We affirm the lower court order.

      . Appellants also named William L. Dyson, M.D. in their complaint. Dyson, however, is not an employee of Bell and did not file a motion for summary judgment. He neither filed a brief nor presented argument in this appeal.

      . Act of June 2, 1915, P.L. 736, art. II, 205, added by Act of August 24, 1963, P.L. 1175, No. 496, § 1; 77 P.S. § 72 (Supp.1981-82).

      . Appellants contend that appellees Chisum and Devine failed to plead their immunity under the Act and therefore waived their defenses. They premise that claim upon the New Matter section of appellees’ Answer to the Complaint in Trespass. In that section, appellees stated that appellants’ claims were barred under the Act which is appellants’ exclusive remedy. Appellants’ Reply to New Matter stated that the Act was not a defense. That Reply makes it clear that appellants indeed had notice of Chisum’s and Devine’s claim of immunity under the Act. That they neglected to specifically cite Section 205 of the Act prior to their Motion for Summary Judgment will not constitute a waiver of that defense. Under Rule 1030 of the Pennsylvania Rules of Civil Procedure, a defendant intending to raise an affirmative defense must provide notice of that defense in her New Matter. Birdman v. Medley, 261 Pa.Super. 23, 395 A.2d 285 (1978). The Act provides such an affirmative defense. Mackey v. Adamski, 286 Pa.Super. 456, 429 A.2d 28 (1981). Appellees Chisum and Devine succeeded in providing notice of that defense in compliance with Rule 1030.

      . Appellants also allege that since the malpractice occurred on December 9, 1974, nearly two months prior to amendments to the Act, the trial court committed reversible error in relying upon 77 P.S. § 481(a) and § 301(c) as raised in appellees’ motion for summary judgment. Appellants are incorrect in the above statement as to the claims raised in appellees’ motion for summary judgment. Appellees cited only Section 303 of the Act, 77 P.S. § 481(a), in asserting Bell’s immunity from liability other than provided under the Act. It is true, of course, that the 1974 amendment of Section 303 was not in effect at the time of the alleged negligence, but prior case law necessitates the conclusion that Bell’s liability would be circumscribed by the Act under prior law as well. In Vogel v. Jones and Laughlin Corp., 221 Pa.Super. 157, 160-161, 289 A.2d 158 (1972), allocatur denied, this court held that where “plaintiffs initial injury was admittedly accidental and within the course of his employment and compensable under the Workmen’s Compensation Law ... his claim for aggravation of the injury [due to negligence in providing medical services in employer’s clinic] is also compensable____” See also Baur v. Mesta Machine Co., 393 Pa. 380, 143 A.2d 12 (1958).


author: JOHNSON, Judge:

text:
    445 A.2d 815
    Robert C. ALOI v. Mary Jo ALOI, Appellant.
    Superior Court of Pennsylvania.
    Argued March 16, 1982.
    Filed May 14, 1982.

      Howard T. Gilfillan, Pittsburgh, for appellant.
    Harry T. Gruener, Pittsburgh, for appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

This appeal is taken from a Decree in Divorce entered August 28, 1981. The sole issue raised by Appellant is whether the lower court abused its discretion in denying her Petition to Re-Open Master’s Hearing. We find no abuse of discretion and, therefore, affirm the decree granted.

Robert C. Aloi (Appellee) filed his Complaint in Divorce in November, 1978. A Master was appointed on March 16, 1979, who thereupon scheduled a hearing on the Complaint for June 19, 1979. At the request of counsel of record for Mary Jo Aloi (Appellant), the hearing was continued. On June 12, 1979, the Master sent a letter to counsel of record for both parties, informing them that the Master’s Hearing was rescheduled for July 3, 1979, at 9:30 a.m.

A Petition for Continuance was prepared on behalf of Appellant and was signed and acknowledged by Appellant’s counsel of record on June 15, 1979. However, the Petition was not presented before the Administrative Judge of the Family Division of the lower court until the morning of July 2, 1979, the day before the rescheduled hearing. The Petition, which had not been acknowledged by Appellant, but by her counsel of record, averred that Appellant was “without sufficient funds to properly prepare for a defense” and that a separate petition for counsel fees and expenses was scheduled to be heard before another Family Division judge on July 16, 1979.

The Petition for Continuance was presented to the Administrative Judge by an attorney other than the counsel of record who had signed and sworn to the truth of the averments contained therein. Appellant was not present at the time the Petition was presented, and substitute counsel neither presented nor offered any testimony to support the averments contained in the Petition. After argument by opposing counsel and due consideration by the court, the Petition for Continuance was refused.

The Master’s Hearing was thereafter held the next day, as originally scheduled by letter of June 12, 1979. Neither Appellant nor Appellant’s counsel of record appeared for, or attended, the hearing. The Notes of Testimony reveal the following, regarding the manner in which the Master’s Hearing was begun and continued:

THE MASTER: This is the time set for trial of the contested divorce action of Robert C. Aloi versus Mary Jo Aloi at 1015 January, 1979.
It is now 10:05 a. m., and Mr. Urbanik, nor his clients, have showed for this hearing, appeared for this hearing. At 9:40 a. m. I called Mr. Urbanik’s office, and a person purporting to be his secretary informed me that he would not be in today and that an attorney by the name of Richard Brandt would be taking his place, would be here in his stead. I asked her when we might expect Richard Brandt, and she said that his office had informed her that he had left for the Courthouse 10 minutes earlier.
Some 25 minutes having elapsed since that phone call, I don’t think it’s advisable to wait any longer to proceed with this hearing.
It should be noted that we attempted to schedule this prior date of June 19th, but Mr. Urbanik wanted it continued, and it was then, on July—on June 12th, I’m sorry, I sent a letter to Mr. Urbanik and Mr. Raphael advising them that the hearing date would be July 3rd.
In reference to that, Mr. Urbanik filed a petition to have this matter continued, and a hearing was conducted before the Honorable John Brosky, Judge, Administrative Judge of the Family Division, and, on the 2nd of July, 1979, the application for continuance was refused.
Do you want to swear the witnesses?
MR. RAPHAEL: If the Master please, at the hearing yesterday, with reference to the continuance, in which Judge Brosky refused Mr. Urbanik’s request for a continuance, the counsel who spoke on behalf of Mr. Urbanik requested that we furnish him with answers to the interrogatories which had been served to us on June 28th, 1979.
I think the record also ought to note that on several occasions I had to write to Mr. Urbanik asking him to please answer the interrogatories that I served on him, and I only received them, I think—on June 28th did I receive the answers to the interrogatories, considerably late, and only after I told him that I would object to any witnesses testifying if he didn’t tell me who his witnesses were going to be.
But yesterday I advised them that I would respond to their interrogatories, and I did so by having a messenger from our office personally deliver them to Mr. Urbanik’s office, which was probably within six or seven days from the date that I received the request for interrogatories. So, they do—they—I lived up to my commitment to the Court of yesterday.
THE MASTER: Yes, and the Master also received a copy.
MR. RAPHAEL: Thank you. Do you want to swear all the witnesses?
(The oath was duly administered to six witnesses.)
MR. RAPHAEL: If the Master please, I presume I will proceed just as if it were a contested divorce action, and go into all the details. I see no other alternative.
THE MASTER: Perhaps you are right. You should.
ROBERT C. ALOI,
the Plaintiff herein, called as a witness in his own behalf, having been duly sworn, testified as follows: .. .

N.T. July 3, 1979, pp. 3-6. [emphasis added].

(Mr. Finkel enters the courtroom.)
MR. RAPHAEL: Do you want to make your statement now?
MR. FINKEL: Yes. Okay.
Sidney R. Finkel.
I received a telephone call from Edward Urbanik, who I understand represents Mrs. Aloi, and he informed me that he was not in his office today, that he objected to the hearing taking place at this time and this date, that he has requested on at least one occasion that—he indicated to me—that it be continued, that he has presented a petition to Superior Court to stay this hearing. However, it has not been acted upon.
And I am here to enter his and my objection to the continuance of this hearing. I do not intend to participate.
THE MASTER: All right. Perhaps you should be made aware—this is already on the record, but for your sake I will repeat it—that we were here and ready to go at 9:30. At 20 minutes of 10 I called Mr. Urbanik’s office. I talked to a woman who purported to be his secretary. She informed me that he would not be in, that he was staying at home today. And I asked her what he intended to do about this hearing. She then informed me that an attorney by the name of Richard Brandt was coming over—this is for your sake—
MR. FINKEL: Okay, I understand.
THE MASTER: —you probably had no knowledge of this—that he had left his office some 10 minutes earlier to be here.
We waited until five after 10 to proceed with this hearing.
MR. FINKEL: At that point you started the hearing?
THE MASTER: At that point we started the hearing.
MR. FINKEL: Okay. I assume you are cognizant of the fact a petition has been presented to the Superior Court.
THE MASTER: No, I was not. I was not even aware he had filed a motion for continuance which was heard yesterday, because Mr. Urbanik never gave me a copy.
MR. RAPHAEL: Mr. Lalama, I would also like the record to note that it is now 11 a. m., which is the time of Mr. Finkel’s arrival.
MR. FINKEL: Okay.
MR. RAPHAEL: And that I likewise have received no notice that an appeal had been filed with the Superior Court, although it was alluded to yesterday when Judge Brosky refused to grant the continuance.
MR. FINKEL: All right. I guess we have all made our appearances and statements of record.
Mrs. Aloi isn’t here, is she ?
THE MASTER: No, not to my knowledge.
MR. FINKEL: All right, thank you.

N.T. July 3, 1979,- pp. 42-45. [emphasis added].

Sometime subsequent to the signing of the order refusing the continuance in the lower court, and either on July 2, or July 3,1979, a Petition for Review which requested a stay of the Master’s Hearing was presented to this Court, although the .lower court’s order had not been docketed. The request for a stay was denied by this Court on July 3,1979. Appellant thereafter filed a Petition for Review with the Supreme Court requesting that a continuance be granted and that the testimony taken by the Master on July 3, 1979, be stricken. This latter petition was denied on August 7, 1979.

On October 12,1979, the Master’s Report was filed recommending that a Decree be entered divorcing Appellee and Appellant from the bonds of matrimony. Twelve days later Appellants’ counsel of record filed exceptions of a boilerplate variety. Appellant took no exception to the Master’s denial of the objection to the continuance of the testimony at the Master’s Hearing entered on the record at that hearing by Appellant’s substitute counsel.

At some point, Appellant also presented a Petition to Re-Open Master’s Hearing. It is not clear from the record just when or how this petition was presented; the original record includes a thermofax copy of the Petition to Re-Open, unsigned and without affidavit attached, which was filed and docketed as of June 2, 1980.

On January 31, 1980, the lower court, sitting en banc, dismissed the exceptions to the Master’s Report and denied the Petition to Re-Open. An appeal from that order was taken to this court on February 12, 1980. Two days later, the lower court entered a decree in divorce. The appeal was quashed, as from an interlocutory orders and the divorce decree of February 12,1980, was vacated, as entered without jurisdiction. Aloi v. Aloi, 290 Pa.Super.Ct. 125, 434 A.2d 161 (1981). Following remand of the case to the lower court, a second decree in divorce was entered on August 28, 1981. On September 10,1981, Appellant filed her Notice of Appeal from the divorce decree in the lower court. The lower court then filed a brief opinion, on October 1, 1981, dated September 18, 1981, adopting its earlier opinion of the court en banc, dated January 30, 1980, as the opinion of the court for purposes of this appeal.

Appellee contends that the wife-appellant is precluded from raising on appeal the question of the denial of her motion for continuance since that ground was not set forth in her exceptions to the Master’s Report. In this case, however, it is clear that the lower court received oral arguments and briefs on the only issue presented to us on this appeal. Moreover, the lower court expressly denied Appellant’s Petition to Re-Open Master’s Hearing in its order dismissing exceptions dated January 31, 1980. We will therefore treat the issue as properly preserved on this appeal.

Appellant concedes that the denial of the Petition to Re-Open was in the sound discretion of the lower court en banc, and merely challenges the exercise of that discretion as being abusive. We note that the original petition for continuance was withheld for seventeen days following execution, and then presented to the lower court one day prior to trial. Although the Petition alleged Appellant was without sufficient funds to prepare properly for a defense, she failed to place on the record either why such funds were needed or the amount.

We note further that, with knowledge that the request for a continuance had been refused, counsel of record for Appellant neither appeared before the Master at the scheduled hearing time nor made effective arrangements for replacement counsel. We are not inclined to accept Appellant’s characterization of the Master’s Hearing as having been held ex parte, where both sides had ample notice and the Master received word from the law office of Appellant’s counsel of record that an attorney was, in fact, aware of the pending hearing and was then on his way to the scheduled site.

Appellant had no justification in relying upon the presentation and pendency of a Petition for Review in the Superior Court and the Supreme Court to support nonattendance at the Master’s Hearing. First, the order of the lower court denying the continuance was neither a determination by a government unit subject to judicial review under Chapter 15 of the Rules of Appellate Procedure, nor was it an application for release in criminal matters as governed by Pa.R.A.P. 1762. Thus, a Petition for Review was not a proper mode for seeking review. Second, since the request for stay had been denied, Appellant must have known she proceeded at her peril until such time as she would receive relief, if any, by a reviewing court.

Since the order denying the stay was clearly interlocutory, Appellant was limited to proceeding under Chapter 13 of the Rules of Appellate Procedure to petition for permission to appeal. The filing of a petition for permission to appeal, however, shall not stay the proceedings before the lower court unless the lower court or the appellate court or a judge thereof shall so order. Pa.R.A.P. 1313.

Although inconsistent with Appellant’s framing of the statement of question involved—which is limited to the review of the discretion of the lower court—she argues in her brief that she justifiably relied upon the rule set forth in Section 1701(a) of the Rules of Appellate Procedure providing as follows:

Rule 1701. Effect of Appeal Generally
(a) General rule. Except as otherwise prescribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may no longer proceed further in the matter.

In this case, however, no appeal was taken, nor could it have been taken without permission. As set forth above, no review of a quasijudicial order, as contemplated by Chapter 15, Pa.R.A.P., was sought, nor could it have been. We therefore find Section 1701(a) inapposite on this appeal.

We conclude, therefore, that the filing of a Petition for Review cannot be utilized to circumvent the established procedure for seeking review of an interlocutory trial court order, and the Master in this case was not deprived of jurisdiction to accept testimony on July 3, 1979.

We further conclude that Appellant had no justification for attempting to rely upon the presentation of an improper pleading to an appellate court as basis for nonattendance at a properly scheduled Master’s Hearing, held only after due notice.

Finally, Appellant cites Deussing v. Deussing, 224 Pa.Super.Ct. 525, 307 A.2d 382 (1973), and Masciulli v. Masciulli, 194 Pa.Super.Ct. 646, 169 A.2d 562 (1961), for the proposition that full disclosure of the facts requires the courts to be most solicitous in opening divorce decrees. As Appellant acknowledges in her brief, in neither of these cases did the party seeking to re-open the hearing have actual notice of the hearing date. We find the cases to be not controlling on the facts presented here. Appellant also cites Terriberry v. Terriberry, 210 Pa.Super.Ct. 54, 232 A.2d 201 (1967), for the proposition that a master is obligated to compile a complete record, reflective of both sides of the controversy before the master. In that case, however, this Court found that the testimony, which covered less than three typewritten pages, fell far short of establishing grounds for divorce. In the instant case, Appellant’s counsel conceded in the oral argument before the lower court en banc that the instant record as it existed established grounds for divorce.

We return, then, to the question of the propriety of the lower court’s denial of the Petition to Re-Open the Master’s Hearing. The lower court had before it the notes of testimony from the hearings on the Petition for Continuance held July 2,1979, and the Master’s Hearing held July 3,1979, together with the relevant pleadings, and the Master’s Report filed October 12, 1979. Following our review of all of these documents, as well as the Opinion of the lower court en banc dated January 31, 1980, and after consideration of the briefs filed and the oral arguments presented on behalf of both parties, we are unable to conclude that the lower court abused its discretion in denying Appellant’s request to re-open the record for the purpose of permitting her belatedly to present her testimony.

The decree in divorce is affirmed.

      . For reasons not clear from the record, the Order refusing the continuance was entered July 2, 1979, yet the Petition upon which the original order was entered was not filed of record in the lower court until July 17, 1979.

      . See Footnote 1.

      . Although Appellant, in her Brief, states that “[t]he instant appeal is from the Order of September 18, 1981,” we note that the Amended Notice of Appeal docketed in our court on March 2, 1982, correctly states that the appeal is from the divorce decree entered August 28, 1981.


author: MONTEMURO, Judge:

text:
    445 A.2d 820
    COMMONWEALTH of Pennsylvania v. Anthony SANDERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 1, 1981.
    Filed May 14, 1982.

      Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.

      William A. Behe, Harrisburg, Deputy District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

Appellant was convicted of criminal attempt to commit murder after a nonjury trial in the Court of Common Pleas of Dauphin County. Post-trial motions were denied and appellant was sentenced to a term of not less than five (5) nor more than ten (10) years imprisonment. Appellant thereafter filed a petition to modify sentence which the lower court also denied. This appeal followed.

Appellant’s first contention is that he did not knowingly and intelligently waive his right to a jury trial. The basis for this contention is that appellant was not adequately advised in the waiver colloquy of two of the three “essential ingredients” necessary to constitute a valid waiver under Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973) and Pa.R.Crim.P. 1101. This issue was not raised in post-trial motions and therefore the merits of this issue have not been properly preserved for appellate review. Commonwealth v. Whitner, 278 Pa.Super. 175, 420 A.2d 486 (1980); Commonwealth v. O’Brien, 273 Pa.Super. 198, 417 A.2d 236 (1979). However, appellant has couched the issue within the context of an ineffective assistance of counsel claim, in that trial counsel failed to challenge the defective colloquy in post-trial motions. Since this appeal represents the earliest opportunity at which appellant is represented by new counsel, the issue is properly before us at this time. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

The standard of review in determining whether or not counsel has rendered ineffective assistance necessitates an initial inquiry into whether the underlying claim is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If the underlying claim is found to be of arguable merit, only then may we proceed to determine whether there was some reasonable basis for counsel’s actions designed to protect his clients interests. Commonwealth v. Hubbard, supra. If the basis for counsel’s actions cannot be determined from the record, the appropriate remedy is to remand the case for an evidentiary hearing on the issue. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).

In Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978), our Supreme Court held that where a defendant is not advised, on the record, of the “essential ingredients of a jury trial” the claim is not only of arguable merit but “under no circumstances can it be said that previous counsel’s failure to raise this issue resulted from any reasonable strategy designed to effectuate his client’s interests.” Id., 477 Pa. at 84, 383 A.2d at 833-834. Therefore, the court found no necessity to remand the record for an evidentiary hearing and held that the proper remedy was a new trial.

The colloquy in the instant case was as follows:

Mr. Hoover [district attorney]: Mr. Sanders, in requesting a waiver trial you give up your constitutional right to a jury trial. What that means [is that] twelve members of the Dauphin County community would come together to decide your guilt or innocence, that Mr. Federico [defense counsel] could participate in the selection of that jury and that the verdict of that jury must be unanimous on your guilt or innocence, do you understand that?
Mr. Sanders: Yes.
Mr. Hoover: How old are you?
Mr. Sanders: Twenty-five.
Mr. Hoover: How far did you go in school?
Mr. Sanders: Eleventh grade.
Mr. Hoover: Understanding all your rights to a jury trial at this time you waive that right, and request that Judge Morgan hear this case?
Mr. Sanders: Yes.
Mr. Hoover: Will the court accept the waiver.
The Court: Yes.

Appellant specifically contends that the colloquy is defective in two respects. First, instead of advising appellant of his right to a trial by a jury chosen from members of the community, appellant was told that twelve members of the community could come together to decide his guilt or innocence. Second, rather than informing appellant that he had the right to participate in the selection of the jury, appellant was advised that defense counsel could participate in the selection process.

Rule 1101 of the Pennsylvania Rules of Criminal Procedure provides in pertinent part:

In all cases the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record.

In Commonwealth v. Williams, supra, our Supreme Court set forth the “essential ingredients” which are inherent in an accused’s right to a jury trial. Each “essential ingredient” must appear on the record before it can be found that the accused has understood his right to a jury trial. In Williams, the court stated:

These essential ingredients, basic to the concept of a jury trial, are the requirements that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.
Id., 454 Pa. at 373, 312 A.2d 600.

However, the Williams Court specifically declined to adopt a prophylactic rule to reverse convictions on the basis of noncompliance with Rule 1101, stating:

The appellant argues that we should make a per se prophylactic rule reversing convictions for failure to comply with Rule 1101 despite the fact that a subsequent full and fair hearing proved the waiver of the constitutional right was knowing and intelligent. When we make rules for criminal proceedings, we do so in order to protect the rights of the individual and therefore we expect strict compliance with those rules. However, a prophylactic exclusionary rule is applied only in entreme cases where all other attempts to secure compliance have proven unsuccessful. See generally Mapp v. Ohio, 367 U.S. 643, 651-652, 81 S.Ct. 1684 [1689-1690], 6 L.Ed.2d 1081 (1961). In this area there has been no showing of widespread flagrant disregard to justify formulation of such a rule at this time. Furthermore, where there is a subsequent proceeding in which the waiver is proven to be knowing and intelligent on the record such a prophylactic rule seems unnecessary since the purpose of the rule to insure the constitutionality of the waiver and our ability to review it, are satisfied. See Commonwealth v. Godfrey, 434 Pa. 532, 538, 254 A.2d 923 (1969).
(Roberts, J., concurring).
Id., 454 Pa. at 372-373, 312 A.2d 599-600.

Following Williams, there have been a number of cases decided by this court applying the rationale therein to determine whether or not language contained in the colloquy was sufficient to advise the accused that the jury would be comprised of his peers chosen from members of his community.

In Commonwealth v. Guenzer, 255 Pa.Super. 587, 389 A.2d 133 (1978), appellant was told that he had “an absolute right to be tried by a jury of 12 of your peers .... ” Id., 255 Pa.Super. at 592, 389 A.2d at 135. The court, sitting en banc, found the above language satisfactory and stated:

“While the better practice may be to elaborate on the meaning of the word peers, we do not consider a failure to do so to constitute ineffectiveness of counsel.”

In Commonwealth v. Bouie, 263 Pa.Super. 556, 398 A.2d 716 (1979), the appellant contended that failure to use the word “peers” in advising him that the jury be chosen from members of the community did not properly advise him of his right to a jury trial. President Judge Cercone, writing for this court in an en banc decision, stated that:

Though it is true that neither counsel nor the trial judge used the word “peers”, this concept was conveyed to appellant via simple, everyday terms. On this point, the judge said to appellant, “You understand that if you choose to be tried by a jury which consists of twelve people chosen from a larger group, you would have a right to assist your attorney in selecting those twelve people. Do you understand that?”
To this appellant replied, “Yes”.
Similarly, defense counsel put this question to appellant, “Do you understand it is your right to have all the facts in this case, your guilt or innocence of this offense, to be heard by a jury of twelve people who are pulled from a panel which has been empaneled?”
Appellant replied in the affirmative.
Nothing in the Williams decision indicates that the precise language used in Williams must be read to the accused as long as the “essential ingredients” of a jury trial are explained to an accused. In fact, the word “peers”, while not a particularly unusual word, is not typically used in everyday language and it may be that the trial court wanted to be certain that appellant understood this concept, particularly in view of the fact that appellant did not complete high school. Therefore, we find that the lower court’s failure to use the word “peers” in advising appellant of his right to a jury trial does not constitute error and so trial counsel was not ineffective for failing to raise this patently frivolous issue. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Id., 263 Pa.Superior Ct. at 558-559, 398 A.2d at 717.

Finally, in Commonwealth v. Fortune, 289 Pa.Super. 278, 433 A.2d 65 (1981), this court, again sitting en banc, held the following colloquy adequate:

Q. And that you would help with your attorney as well as the District Attorney select 12 people that would sit on that jury and all 12 of those people must be convinced beyond a reasonable doubt that you are guilty, before you could be found guilty. Do you understand that?
A. Yes, sir.
Q. Do you understand if one person of the 12 does not feel you were proven guilty beyond a reasonable doubt, you could not be found guilty by that jury. Do you understand that?
A. Yes, sir.
Id., 289 Pa. Superior Ct. at 282, 433 A.2d at 67.

Judge Hester, writing for the majority, concluded that on the basis of the en banc decisions of this court in Bouie and Guenzer, “the lower court’s failure to use the word ‘peers’ or ‘chosen from members of the community’ in advising appellant of his right to a jury trial” did not constitute error. Id., 289 Pa.Superior Ct. at 290, 433 A.2d at 71.

In the instant case, in accordance with this court’s en banc decisions in Guenzer, Bouie, and Fortune, we find that failure to use the word “chosen” does not render the colloquy defective, especially when the follow-up phrase in the waiver colloquy contained language to the effect that defense counsel “could participate in the selection of that jury.” Appellant was adequately advised when told that twelve members of the community would come together to decide his guilt or innocence.

Appellant’s second contention of error in the waiver colloquy presents a more difficult problem. Appellant argues that he should have been advised that he had the right to participate in the selection of the jury, rather than defense counsel.

The holding in Williams does not require us to take a hypothetical approach and, accordingly we believe that informing appellant that defense counsel could participate in the selection of the jury was sufficient.

It cannot be doubted that when an accused is represented by trial counsel, it is counsel who selects the jury. The colloquy in the instant case is merely a recognition of what, in fact, does occur. Moreover, the court in Williams cited as its authority Commonwealth v. Fugmann, 330 Pa. 4, 198 A. 99 (1938), and in Fugmann the court said:

“The essentials of a trial by jury of a defendant in a criminal case as known at common law were ... (3) an ample right of challenge both for cause and peremptorily, secured to defendant. Id., 330 Pa. at 29, 198 A. 111.

Inherently, a jury trial requires that the defendant be secured the right to challenge potential jurors on the basis of cause or peremptorily. Those rights are adequately secured to an accused when they are exercised by defense counsel. The fact that an accused does not personally select the jury is not a deprivation of that right. To allow appellant at this time to successfully argue that although he knew that defense counsel could participate in the selection of the jury, but that he could not, would exalt form over substance and further muddy the waters with absurd technicalities. We do not believe that Williams intended such a result.

We hold, therefore, that the “essential ingredients” of a jury trial were explained to the appellant and trial counsel cannot be deemed ineffective for failing to raise this issue. The record, in our view, clearly establishes that the appellant knowingly and intelligently waived his right to a jury trial.

Appellant’s next contention is that the evidence presented by the Commonwealth was insufficient to prove either that appellant was the perpetrator of the crime charged or, even if such fact was established, that his acts constituted the crime of attempted murder.

In determining the sufficiency of the evidence, we accept as true all evidence upon which the fact finder could properly have reached its verdict and give the verdict winner, in this case the Commonwealth, the benefit of all reasonable inferences therefrom. Commonwealth v. Williams, 468 Pa. 357, 362 A.2d 244 (1976); Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Lynch, 227 Pa.Super. 316, 323 A.2d 808 (1974). The Commonwealth, moreover, does not have to establish guilt to a mathematical certainty and may in a proper case rely on circumstantial evidence. Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Williams, 269 Pa.Super. 544, 546, 410 A.2d 835, 836 (1979).

Viewed under this standard, the record establishes that on or about 2:30 a. m. on October 14, 1979, the victim, along with two of his friends, stopped their vehicle to investigate a confrontation occurring on the opposite side of the street. The victim, who was a passenger in the car, got out and proceeded to the area where the argument was taking place. The driver of the car also exited. The appellant, who was identified by the driver, drove up to this location, got out of a green and white car, and walked across the street with a tire iron. Apparently nothing materialized from this scene and both appellant and the victim returned to their vehicles. Appellant drove off. Minutes later, the victim, and his two friends traveled two blocks and stopped their vehicle next to appellant’s parked car. At this time, appellant was viewed walking towards a house. The victim then got out of the car with a stick and proceeded to strike appellant’s car two or three times. As the victim and his companions drove off they saw someone running towards them, heard several shots fired and stopped the car at an intersection. The victim, with a stick in his hand, jumped out of the car and walked towards the rear. The victim was heard to say that, “If you drop your weapon, I’ll drop mine.” The driver of the car noticed a shiny object in the hands of the man confronting the victim. A shot was heard and the man was seen by the victim’s companions walking towards and getting into the green and white car. He then drove off. The victim was found by his friends lying in the street.

Further testimony presented at trial established that it was appellant who approached the vehicle stopped in the intersection, that a struggle ensued, that the victim hit the ground, that shots were fired and that the appellant was identified walking back to his car throwing a nickle plated pistol in the back seat before driving off. A subsequent police investigation revealed that appellant was the owner of a green car with a white top.

Criminal attempt is defined as:

§ 901. Criminal attempt.
(a) Definition of attempt.—A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. 18 Pa.C.S.A. § 901.

Murder is Defined As:

“Murder in this Commonwealth is still governed by the Common Law definition; i.e., the unlawful killing of another with malice aforethought, expressed or implied, Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973). Although murder is delineated into murder of the first and second degree, the Common Law definition still governs and murder, whether it be of the first or second degree, is nevertheless murder. Therefore, the Commonwealth in the instant case was required only to prove intent to commit murder.” Commonwealth v. Reese, 237 Pa.Super. 326, 333-334, 352 A.2d 143, 147 (1976).

Reviewing the evidence under the applicable law we find it is sufficient to sustain appellant’s conviction of attempted murder.

Appellant also contends that trial counsel was ineffective in failing to object to the lower court’s limitation of his cross-examination of a Commonwealth witness concerning possible bias. The record, however, does not support this contention.

By Defense Counsel:

Q. And, were you promised anything to testify here today.
A. No, not really.
Q. You said no, not really. What, if anything, was said to you about—in return for testifying here today?
A. Nothing, just reimbursing me for traveling and my time.
Q. You weren’t promised that
By the District Attorney: Objection to that.
A. No, I wasn’t.
The Court: She said no.

The trial judge did not sustain the objection and the witness fully responded to defense counsel’s questions. We do not understand how this amounts to a refusal by the trial judge to permit cross-examination of the Commonwealth’s witness concerning potential bias. This claim is meritless and trial counsel cannot be deemed ineffective for failing to pursue it.

Finally, appellant contends that he was denied a fair trial in that the trial judge inferred guilt from his failure to testify on his own behalf. This contention is based on an alleged comment made by the trial judge. This issue was not raised in post-trial motions and, as such, it has been waived. Commonwealth v. Whitner, supra; Commonwealth v. O’Brien, supra. Judgment of Sentence is affirmed.

      . Although present law in Pennsylvania provides for first, second and third degree murder, 18 Pa.C.S.A. § 2502, the Common Law definition is still applicable in this case.

      . It should be noted that on the merits of this issue, appellant’s brief contains no reference to what, in fact, the trial judge said.


author: MONTGOMERY, Judge: HESTER, Judge,

text:
    445 A.2d 826
    UNITED STATES NATIONAL BANK IN JOHNSTOWN, Pennsylvania, v. H & D LEASING, INC. A Pennsylvania Corporation, Helen E. Daniels, Chester J. Daniels, i/t/a and Doing Business as H & D Leasing, Inc., Appellants, v. Robert BUETTNER and Donald Buettner, trading as Leo Buettner Insurance.
    Superior Court of Pennsylvania.
    Submitted May 21, 1981.
    Filed May 14, 1982.

      William G. Barbin, Johnstown, for appellants.
    David R. Lovette, Johnstown, for U. S. Nat. Bank, appellee.
    R. Thomas Strayer, Johnstown, for Buettner, appellees.
    Before HESTER, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal arises from a lower court Order which granted a Motion for Summary Judgment and dismissed a Complaint filed by the Defendant against the Additional Defendants. The action originally arose as a result of the failure by the Defendants to repay a loan to the Plaintiff Bank. The loan had been used to finance the purchase of a truck on June 8,1977 by the Defendants, Chester and Helen E. Daniels and their family enterprise, H&D Leasing, Inc. The truck was destroyed in the tragic flood which struck Johnstown on July 20, 1977, and the Defendants thereafter sought to collect on insurance coverage they believed existed on the truck. They were informed by their insurance agents that no such coverage had been placed on the vehicle. When sued by the Bank on the loan, the Defendants therefore initiated a Complaint to join the insurance agents as Additional Defendants. The Defendants claimed that, through their employees, the Additional Defendants had assured the Defendants prior to the flood that appropriate insurance— so-called “comprehensive” coverage—would be issued to cover the truck in question.

The Additional Defendants filed Preliminary Objections to the Complaint which had been filed against them. These Preliminary Objections were considered by Cambria County President Judge Clifton McWilliams, who dismissed them by an Order dated March 9,1979. In an Opinion, Judge McWilliams explained that it was his conclusion that the insurance agents could be joined as additional defendants based upon Pa.R.C.P. 2252(a), which provides:

(a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joining party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based.

Discovery, including the taking of depositions, was subsequently completed by the parties. Of particular significance, we note that Defendant Helen E. Daniels testified in a deposition that she believed she had purchased both comprehensive and liability insurance coverage as a result of a conversation she had with an employee of the insurance agency at the time of the truck purchase, when Mrs. Daniels sought such coverage. Further, it also was established in discovery that the Plaintiff Bank required such comprehensive insurance coverage as a condition of the loan which it extended to the Defendants for the purchase of the vehicle. Following the completion of discovery, the Additional Defendants filed a Motion for Summary Judgment, which was granted by Cambria County Judge Eugene Creany on December 9, 1980, when he issued an Order dismissing the Additional Defendants from the case. Judge Creany’s rationale will be discussed later in this Opinion. The Defendants filed the instant appeal. After a thorough review of the record, and consideration of the issue presented, we have concluded that Judge Creany has erred and that a reversal is mandated.

It is clear that the issue raised in the instant case is directly on point to that presented to this Court in Eads v. Smith, 276 Pa.Superior Ct. 129, 419 A.2d 129 (1980). In that case, a plaintiff brought an action to recover damages allegedly arising from injuries he sustained when struck by a vehicle owned and operated by the defendant. The defendant sought to join an insurance agent as an additional defendant on the basis that the agent had assured him that a policy providing coverage against the claim had previously been issued. The lower court sustained the agent’s motion to strike and dismissed the complaint against the additional defendant. We reversed, holding that the proper interpretation of Rule 2252(a) is a broad one, and that the purported indemnitor insurance agent could be joined as an additional defendant. In Eads, our Court allowed joinder because we found that the defendant’s cause of action against the additional defendant arose, at least in part, from the same occurrence upon which the plaintiff’s cause of action was based. There we found that the additional defendant would not have been obligated to indemnify the defendant or provide a defense if the plaintiff had not sued the defendant to recover damages. The same situation obviously exists in the setting of the instant case. Judge Creany recognized the Eads decision, but expressly stated that he relied upon the Dissenting Opinion of Judge Hester' in that case. While Judge Hester’s thoughtful Dissenting Opinion is certainly worthy of respectful consideration, it simply does not comprise precedent, and is certainly not controlling law in these circumstances. We further note that Judge Creany attempted to find support for his conclusions in the holding of this Court in Szemanski v. Vulcan Materials Co., 272 Pa. Superior Ct. 240, 415 A.2d 92 (1979), a case relied upon by the majority in Eads. Suffice it to state that we find that the basic holding in Szemanski strongly supports the rationale of the majority of this Court in Eads, and provides no basis for the lower court’s decision in the instant case.

We therefore conclude that the lower court erred in granting summary judgment and dismissing the Complaint filed by the Defendants against the Additional Defendants. Reversed and remanded. Jurisdiction is not retained.

HESTER, J., files a dissenting opinion.

HESTER, Judge,

dissenting:

I dissent for the reasons set forth in my dissenting opinion in Eads v. Smith, 276 Pa.Super. 129, 419 A.2d 129 (1980). In Eads I was of the opinion that the court’s reliance on the holding in Szemanski v. Vulcan Materials Company, 272 Pa.Super. 240, 415 A.2d 92 (1979) was misplaced. I there stated:

I have reviewed the majority opinion and the case of Szemanski (supra) upon which the majority so heavily relies. I conclude, however, that the majority’s reliance upon Szemanski is misplaced and I therefore would affirm the order of the lower court.
The additional defendant joined in Szemanski, pursuant to Pa.R.C.P. 2252(a), was a party who allegedly agreed, as part of a construction contract, to indemnify the original defendant against loss on the cause of action complained of by plaintiff in his original complaint.
There is no doubt that amended Rule 2252(a) has expanded the parameter whereby joinder of additional defendants is permissible. Joinder is now permitted “if the proposed additional defendant may be (1) alone liable to the plaintiff on the cause of action declared upon by the plaintiff, (2) liable over to the defendant in regard to such cause of action, (3) jointly or severally liable with the defendant to the plaintiff on such cause of action, or (4) liable to the defendant on any cause of action which he may have against the additional defendant arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based.
However, there are restrictions; [A]n additional defendant cannot be joined on the basis of a claim wholly unrelated to the claim of the plaintiff against the defendant .. . [jjoinder remains improper if based upon a completely extraneous cause of action, not related to the occurrences or transactions upon which the plaintiff’s cause of action is based.” Goodrich-Amram 2d, Vol. 8, § 2252(a): 5, p. 36.
In Szemanski, the court permitted the joinder of an express indemnitor on the theory that the original defendant’s cause of action against it, although not the same cause of action as alleged by plaintiff against the original defendant, is related to it. The court in Szemanski, apparently concluded that there existed a close enough nexus between plaintiff’s cause of action against original defendant and the original defendant’s related cause of action against the additional defendant to permit the joinder.

In Szemanski, supra, Vulcan, the original defendant, and United Industrial Maintenance, the additional defendant, entered into a contract whereby United agreed to make certain repairs to a crane owned by Vulcan. As part of that same contract, United agreed to indemnify Vulcan against all claims which might arise out of the performance of the contract. There, the additional defendant’s indemnity obligation was part and parcel of the original undertaking. In Szemanski, we held at 415 A.2d 95: “The 1969 amendment was intended to modernize additional defendant practice. The language of the amended rule is broad enough to permit the joinder of express indemnitors.” We further stated there: “In the instant case, defendant sought to join as an additional defendant a party who was not an insurer but who is alleged to have agreed as part of a construction contract to indemnify defendant against loss on the cause of action pleaded by plaintiff; we hold that such a joinder is permitted by Pa.R.C.P. 2252(a).” (Emphasis added). The additional defendant assumed that contingent liability as part of the original undertaking between the parties.

Our holding in Szemanski, permitting the joinder of an express indemnitor was improperly extended by the Eads Court to include an insurance agent. Eads sued Smith for injuries resulting from Smith’s negligent operation of a motor vehicle. Smith attempted to join Oaten, his insurance agent, as an additional defendant. The majority of this court held that: “defendant’s cause of action against additional defendant arises, at least, in part, from the same occurrence upon which the plaintiff’s cause of action is based.” This reasoning is beyond comprehension. The facts upon which the plaintiff’s cause of action in Eads was structured, was that the defendant, while operating his motor vehicle, struck the plaintiff while he was riding his bicycle, causing serious injuries. The facts upon which the defendant’s causé of action against the additional defendant was structured, was that the additional defendant failed to provide insurance coverage for defendant’s motor vehicle when allegedly instructed to do so by defendant. One cause of action has nothing to do with the other. They are in no manner related.

In the instant case, it cannot be argued that the proposed additional defendant may be alone liable to the plaintiff-bank for the original defendant’s failure to meet its obligation; nor can it be argued that the additional defendant may be liable over to the original defendant, or jointly or severally liable with the original defendant to the plaintiff-bank, or liable to the original defendant on any cause of action which the original defendant may have against the proposed additional defendant which arises out of the transaction or occurrence, or series of transactions or occurrences upon which the plaintiff’s cause of action is founded.

In my judgment, the defendant’s claim against the proposed additional defendant is wholly unrelated to the plaintiff-bank’s claim for monies due and owing.

I would, therefore, affirm the order of the court below disallowing the joinder of the additional defendant.

      . The Plaintiff Bank has not participated in the instant appeal, which solely involves the issue of whether the dismissal of the Additional Defendants from the case was correct.


author: VAN der VOORT, Judge:

text:
    445 A.2d 829
    COMMONWEALTH of Pennsylvania v. Belton COLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 8, 1981.
    Filed May 14, 1982.
    Petition for Allowance of Appeal Denied Sept. 17, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This case was heard non-jury after which appellant was adjudged guilty of rape and other related offenses. Appellant does not argue that the evidence was insufficient to support a finding that he sexually assaulted the victim. Instead he claims that the prosecution failed to prove beyond a reasonable doubt that the victim was not his spouse.

The victim did not testify. The principal prosecution witness was Allen Solomon, a psychiatric aide at the Philadelphia State Hospital at Byberry. His testimony was that he came upon appellant engaging in sexual intercourse with Margaret Turfangian in the boiler room of the hospital; that Turfangian was bleeding a great deal and hollering, “No, don’t”. (N.T. 3/13/80, p. 10). The witness told appellant to stop and appellant eventually disengaged himself. While the witness was attempting to find a security guard, appellant attempted to flee. Solomon pursued and was able to prevent appellant from leaving. Solomon questioned him as to why he had done what he had, and appellant said “because it felt good.” (N.T. 3/13/80, p. 13). Solomon described the victim as a white woman in her sixties, whom he recognized as a patient of the hospital. He described appellant as a black man in his thirties, and not a patient of the hospital.

After the prosecution rested, defense counsel indicated that the defense would not offer any witnesses or arguments. Judge Hill then adjudged appellant guilty on all counts. (N.T. 3/14/80, p. 35).

The issue as to a failure of proof that the victim was not appellant’s spouse was first raised in the Post Verdict Motions. The lower court found that there was sufficient circumstantial evidence to justify the conclusion beyond a reasonable doubt that appellant was not married to the victim.

The following circumstances when considered together, allow such a conclusion: the different surnames of defendant, Belton Cole (N.T., p. 7), and the victim, Margaret Turfangian (N.T., p. 10); the difference in the ages of defendant (in his thirties) and the victim (in her sixties) (N.T., p. 48); the difference in race of defendant (black) and the victim (white) (N.T., p. 48); the location of the incident—under a boiler in a boiler room at Philadelphia State Hospital (N.T., pp. 9, 10); and, the character of the incident—the “hollering” of the victim and the fact that she was covered with blood and her eyes were blackened (N.T., pp. 10, 48).
(Opinion, pp. 6-7) (footnotes deleted)

In Commonwealth v. Schilling, 288 Pa. Superior Ct. 359, 431 A.2d 1088 (1981) a panel of this Court found the following circumstantial evidence sufficient to demonstrate the non-married status of the parties. The prosecutrix was single at the time of trial, she had met the defendant a few days before the incident and had not seen him again until the incident. Both lived at home with their respective parents. Several other jurisdictions have also addressed this issue. In People v. Harrell, 252 Cal.App.2d 735, 60 Cal.Rptr. 864 (1967), the court found the fact that the victim had a different surname from the defendant, had never seen the defendant prior to the rape and was sixteen years old, supported the inference of non-marriage. The Harrell court relied on People v. Peters, 149 Cal.App.2d 94, 308 P.2d 42 (1957), which found the disparity in ages and the complete difference of names, established prima facie that the victim was not married to the defendant. And in People v. Jones et al., 53 Ill.App.3d 197, 10 Ill.Dec. 857, 368 N.E.2d 452 (1977), the court found dissimilar surnames, the victim’s claim that she learned the defendant’s name at trial and the difference in ages, supported an inference of nonmarried status.

We find that the evidence produced by the Commonwealth was sufficient to carry its burden of proving the negative that the victim was not the spouse of the appellant.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3121 defines rape in pertinent part as a person’s engaging “in sexual intercourse with another person not his spouse ...” (emphasis supplied.)


author:
PER CURIAM.
      HESTER, Judge,

text:
    445 A.2d 831
    COMMONWEALTH of Pennsylvania v. Samuel GUNTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1979.
    Filed May 14, 1982.

      Helen R. Kotler, Pittsburgh, for appellant.
    Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before HESTER, MONTGOMERY and LIPEZ, JJ.
   PER CURIAM.

The factual and procedural history of these consolidated appeals is as follows:

On November 5, 1973, two gunmen robbed a Pittsburgh tavern. They remained in the well lit bar for approximately fifteen minutes taking money from the cash register and a collection jar. Several bottles of whiskey were also taken. The tavern owner and the bartender closely observed the gunmen while the robbery was in progress. A few weeks later, the owner recognized appellant as one of four men pictured in the newspaper. The police were notified, and several days later, appellant and his codefendant were identified in a lineup of four men including three of those whose pictures appeared in the newspaper. Appellant was seventeen years old at the time.

A petition for delinquency was filed on December 31,1973, alleging appellant’s involvement in the tavern robbery. The case was certified to the Criminal Division of the Court of Common Pleas on February 14, 1974. Appellant was thereafter indicted on one count of armed robbery. He proceeded to trial on April 13, 1974, but a mistrial was declared by the trial judge, over defense counsel’s objections, due to the jury’s inability to reach a verdict. Motions to dismiss on grounds of double jeopardy and a Pa.R.Crim.P. 1100 violation were denied on May 20, 1976, and a new trial commenced immediately before a judge and jury. Four days later, appellant was found guilty as charged, and was sentenced to two and one half (2V2) to five (5) years imprisonment on July 20, 1976.

Timely filed post verdict motions alleged, inter alia, erroneous denial of his motions to dismiss and his motion to suppress the lineup identification. The motions were denied. A direct appeal was perfected setting forth two issues for review: (1) the impropriety of the declaration of a mistrial over appellant’s objections; and, (2) the insufficiency of the evidence to sustain the conviction. This court affirmed the judgment of sentence in Commonwealth v. Gunter, 250 Pa.Super. 601, 379 A.2d 588 (1977). Appellant’s petition for allowance of appeal was denied by the Supreme Court.

In November of 1977, appellant filed a petition pursuant to the Post Conviction Hearing Act (hereinafter PCHA) causing the lower court to appoint current counsel to assist in the proceeding. Appellant’s original and amended PCHA petitions alleged, inter alia, that original appellate counsel was ineffective in not raising the issue of his denial of the right to a speedy trial.

Following a hearing, the lower court granted appellant the right to appeal, nunc pro tunc, the speedy trial issue to this court. That appeal was docketed at No. 1143 April Term, 1978. The lower court then filed an order denying PCHA relief on all other issues. An appeal from that order was docketed at No. 149 April Term, 1979.

The lower court properly granted appellant the right to appeal the Rule 1100 issue nunc pro tunc. Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982). As a result, we will review appellant’s allegation that his Rule 1100 rights were violated as if the issue were presented in the original direct appeal.

As the criminal process began on February 14,1974, Rule 1100(a) mandates that appellant’s trial was to begin no more than 270 days thereafter. The Commonwealth argues that appellant has waived his right to assert this issue on appeal as he failed to file a written application for dismissal of charges under Rule 1100 prior to trial. The record reveals that in lieu of filing a written application, defense counsel presented the Rule 1100 dismissal motion orally. It is true that our court has determined that a written application should be timely filed prior to trial in order to preserve a Rule 1100 claim for appellate review. Commonwealth v. Yancey, 251 Pa.Super. 478, 380 A.2d 880 (1977); Commonwealth v. Webb, 254 Pa.Super. 429, 386 A.2d 25 (1978) (Opinion in Support of Affirmance). Our Supreme Court in Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977), however, found that an oral motion to dismiss pursuant to Rule 1100 is considered a timely application if made prior to the first substantial step in the trial. See also, Commonwealth v. Webb, supra, (Opinion in Support of Reversal). The Supreme Court indirectly confirmed this position in Commonwealth v. Byrd, 493 Pa. 178, 425 A.2d 722 (1981). We, therefore, find that appellant’s oral motion to dismiss under Rule 1100 was timely and he has not waived the issue for purposes of the nunc pro tunc appeal, despite the absence of a claim of extraordinary circumstances.

Under Rule 1100(a)(1) appellant should have proceeded to trial by November 11, 1974, 270 days after the certification to criminal court. Instead, trial commenced on April 13, 1976, or 789 days after certification.

Rule 1100(d) provides for exclusion of time, for purposes of a speedy trial, due to any delays resulting from:

(1) the unavailability of the defendant or his attorney;
(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.

Trial was originally scheduled to commence on July 2, 1974. On June 20, 1974, defense counsel requested a continuance (1) due to a conflict in defense counsel’s schedule as he was to try two other cases that same date, one of which was a jury trial; and (2) because appellant had another trial scheduled in July, the disposition of which may have expedited the subject trial. The request was granted and trial was rescheduled for September 17, 1974. Another continuance was requested by defense counsel on September 9, 1974, setting forth the same reasons as those given in the first request. The continuance was granted until the conclusion of appellant’s other trial which was July 22,1975. The total time resulting from these two continuances is 406 days.

Though Rule 1100(d)(2) provides that only the period beyond the thirtieth day of a continuance may be excluded, special circumstances may dictate otherwise. Such a special circumstance is when a continuance is properly granted due to defense counsel’s unavailability. This occurrence allows the exclusion of the entire period of the continuance under Rule 1100(d)(1). See, Commonwealth v. Warner, 269 Pa.Super. 1, 409 A.2d 33 (1979). Both of the above continuances were premised upon the unavailability of defense counsel, but did set forth an unrelated additional reason. But for the nature of that additional reason, we would exclude the entire 406 days. Instead, we exclude only 59 and 287 days respectively, or 346 days total, as we find that the second reason offered may still have existed, and did, even if defense counsel was available.

Following the conclusion of appellant’s other trial, nothing more is of record until October 20, 1975. On that date, defense counsel requested another continuance based on the fact that appellant could no longer afford the services of private counsel and acquired representation from the Public Defender on October 15, 1975. The Public Defender, therefore, needed additional time to prepare their case and file pretrial motions. Trial was continued until November 5, 1975, or 17 days. This period of time falls within the ambit of Rule 1100(d)(2), and may not be excluded as it is less than 30 days.

On November 5, 1975, appellant did not appear for trial and was unavailable until February 2,1976, or a period of 89 days. This entire period is excludable under Rule 1100(d)(1) for a total thus far of 435 excludable days.

On February 2, 1976, the case was listed for March 17, 1976, at which time the Commonwealth requested and was granted a postponement. Trial was then scheduled for April 6,1976, but was not reached until April 13,1976, suppression and dismissal motions having been presented and denied on April 12, 1976. As we have no indication of whether the Commonwealth’s petition was properly granted in light of a showing of due diligence, we do not exclude the 21 day period resulting from the postponement granted the Commonwealth.

Taking into account all of the properly excludable time, appellant was brought to trial 354 days after the commencement of the criminal process. This being a violation of Pa.R.Crim.P. 1100(a)(1), the proper remedy is appellant’s discharge.

Judgment of sentence reversed and vacated, and appellant discharged.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent. I would affirm on the Opinion of Judge Schwartz of the court below.

      . Post Conviction Hearing Act, Act 1966, January 25, P.L. 1580 (1965), 19 P.S. § 1180-1 et seq. Repealed 1978, April 28, P.L. 202, No. 53, § 2(a) [1397], eff. June 27, 1980. Now implemented by Pa.R.Crim.P. 1501 through 1506.

      . Based upon our disposition of appellant’s nunc pro tunc appeal, we need not reach the other issues which are set forth in his PCHA appeal.

      . Pa.R.Crim.P. (a)(1): “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.”

      . When a juvenile is transferred to the criminal division of the Court of Common Pleas, Rule 1100 begins to run from the date of the transfer. Commonwealth v. Bell, 481 Pa. 229, 392 A.2d 691 (1978).

      . Trial begins for purposes of Rule 1100 when the jury is empaneled or voir dire or any other substantial step of trial has begun. Commonweatlh v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977). A suppression hearing is not such a substantial step. Commonwealth v. Byrd, 493 Pa. 178, 425 A.2d 722 (1981).