text:
    509 A.2d 868
    COMMONWEALTH of Pennsylvania v. Michael Harry LLOYD, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed March 21, 1986.
    Reargument Denied June 3, 1986.

      Michael J. Connolly, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellee.
    Before CIRILLO, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence which was imposed upon appellant, Michael Lloyd, after he was convicted by a jury of theft by unlawful taking or disposition. 18 Pa.C.S.A. 3921(a). We affirm.

Appellant raises a number of issues in this direct appeal. They are (1) whether the verdict was contrary to the law, contrary to the evidence, and contrary to the weight of the evidence; (2) whether the evidence was insufficient to support a verdict of guilty beyond a reasonable doubt; (3) whether the trial court erred in (a) finding that the appellant had waived permanently his rights under Pa.R.Crim.P. 1100; (b) in finding that the prosecution had exercised due diligence in attempting to bring the case to retrial after a new trial had been granted; (c) in permitting testimony of a police officer despite the fact that the officer’s testimony was stricken later; (d) in permitting the prosecution to introduce evidence as to the value of the stolen items after the prosecution had rested its case; and (e) in imposing a harsh sentence which failed to give appellant credit for time served. Appellant also contends that trial counsel was ineffective for (a) failing to file a pretrial motion to suppress evidence; (b) for failing to present testimony regarding a violation of the Interstate Agreement on Detainers and for failing to preserve this issue; (c) for failing to object to appellant’s appearance in court because appellant was wearing prison garb; and (d) for failing to present certain defense witnesses. For the following reasons, we must reject appellant’s contentions.

Viewing the evidence in a light most favorable to the verdict winner, the prosecution, the record establishes these facts:

On October 5, 1979, the victim, Dean Hartman, left the barn area of his family’s dairy farm in Bern Township, Berks County, at approximately 8:00 p.m. Dean Hartman returned to the farm at 12:00 midnight to conduct a routine check. At 6:00 a.m., the next morning, Hartman discovered that a portion of the fence at the north end of the barn was down. Upon closer examination of the area where the fence had been damaged, Hartman noticed tire tracks which led to the north end of the barn where the missing dairy cows had been kept. The tire marks ended within several feet of a piece of concrete which had been chipped from the base of the barn entrance.

On this same morning, at approximately 6:00 a.m., the appellant was observed by a police officer entering the driveway of his farm on Casino Drive in Hallow Township, New Jersey. During this time, appellant was driving a 1979 maroon and silver pick-up truck and trailer which was manufactured by General Motors Corporation. Four black and white Holstein dairy cows were seen through the slats of the trailer.

Upon exiting the truck, appellant was arrested by a New Jersey state trooper on unrelated charges. When the trooper questioned appellant regarding ownership of the cows, appellant stated that he had ownership papers for the cows inside the truck. Appellant explained that the cows were being moved from one of his pastures. Appellant then was taken into custody. In the meantime, a detective from the New Jersey State Police Department, searched the front seat and the glove compartment of appellant’s truck and found no evidence that the cows belonged to appellant. The police drove the truck and trailer to the Colt’s Neck Station and later that day the cows were removed from appellant’s trailer and taken to Rutgers’ University beef farm.

On October 9, 1979, Hartman produced the certificates of registration for the cows which had been missing since October 6, 1979.

With respect to appellant’s sufficiency claim, we must remember the following guidelines:

In order to convict appellant of theft by unlawful taking or disposition, the prosecution must prove beyond a reasonable doubt that he unlawfully took, or exercised unlawful control over, movable property of another with intent to deprive the owner thereof. 18 Pa.C.S.A. § 3921.

Additionally, we have said that:

Evidence of possession of stolen property may be relevant in deciding whether the possessor is the one who stole it. However, evidence of possession alone is not sufficient to prove theft beyond a reasonable doubt. Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974). All of the evidence of surrounding circumstances must be considered, and although a conviction may be based on circumstantial evidence alone, it must meet the standard of proof beyond a reasonable doubt. Commonwealth v. Simmons, 233 Pa.Super. 547, 336 A.2d 624 (1975) .

Commonwealth v. Bailey, 250 Pa.Super. 402, 407, 378 A.2d 998, 1001 (1977).

We also have said that the following factors will be applied when examining whether the finder of fact can infer guilt from the unexplained possession of recently stolen goods:

the lapse of time between the crime and the discovery of the property; the type and kind of property; the amount and volume of the property; and the ease in which it may be assimilated into trade channels.

Commonwealth v. Dale, 232 Pa.Super. 213, 221, 335 A.2d 454, 458 (1975), petition for allowance for appeal denied May 5, 1975.

In this case, appellant contends that the evidence of guilt is insufficient because of the following:

[all] that is established is the Defendant’s possession of the allegedly stolen property in a neighboring state with a truck and a trailer along with some circumstantial evidence that the cows left the Hartman farm in a truck and trailer. No exact time frame was ever established for the actual theft nor was any identification made regarding any truck or trailer, and therefore it is impossible to say the Defendant’s possession was even close in the context of time to the disappearance of the cattle from the Hartman farm.

Brief for Appellant at 15.

Our review of the record reveals that appellant’s contentions must be rejected. To begin with, appellant possessed four unique items of movable stolen property (i.e., four black and white Holstein dairy cows) when appellant was stopped by the police. Because these were pedigreed animals, they were marked distinctly on the ears and around the neck with registration numbers. Also, documents were issued to the owner/s in order to verify their unique value.

Although the record fails to contain evidence of the exact time of the theft, the record does establish that the theft must have occurred between 8:00 p.m., on October 5, 1979, and 6:00 a.m. on October 6, 1979. These were the times when the owner had conducted his routine check of the cows. The owner also stated that “things appeared normal” during his midnight check although he did not take a head count. Trial Testimony at 45.

Due to the very limited use for which the dairy cows could be used and because of their cumbersome nature, we have no difficulty in concluding that appellant’s possession of these items in the neighboring state of New Jersey was recent. See Commonwealth v. Plath, 267 Pa.Super. 1, 4, 405 A.2d 1273, 1275 (1979) (possession of stolen automobile by defendant was recent six or seven hours after the theft had occurred as this was an insufficient time period “for the automobile to have been assimilated into the ordinary market channels for automobiles.”); Commonwealth v. Phillips, 258 Pa.Super. 109, 392 A.2d 708 (1978) (possession of stolen motor vehicle was considered recent one week after the theft).

The evidence also establishes that appellant gave an unsatisfactory explanation for his possession of the cows. Upon being questioned by the police, appellant stated that the cows belonged to him although appellant was unable to produce any documentation of his ownership.

Under these circumstances, appellant’s conduct at the time of his arrest “ ‘is totally inconsistent with innocent behavior and merely adds weight to the [factfinder’s] conclusion that appellant knew the vehicle was stolen.’ ” Commonwealth v. Plath, 267 Pa.Super. at 4, 405 A.2d at 1274 (quoting Commonwealth v. Murray, 246 Pa.Super. 422, 428-30, 371 A.2d 910, 913 (1978)). We also note that the record establishes that a truck was used in order to transport the stolen items. Accordingly, this web of evidence was sufficient to establish beyond a reasonable doubt that a theft had occurred and that appellant had committed this theft.

For the most part, the trial court’s opinion sufficiently disposes of the other issues. We need only comment on three issues which appellant has raised.

Appellant contends that trial counsel was ineffective for failing to present certain defense witnesses. An evidentiary hearing was held on counsel’s ineffectiveness and trial counsel denied that appellant gave him the names of certain witnesses who could testify that they had sold appellant the cows.

With respect to the sentencing question, the trial court imposed a sentence of not less than three (3) nor more than seven (7) years which was to run consecutively to the sentence of ten (10) to twenty (20) years imposed in Bucks County. According to appellant, the trial court should have given him credit for the time which he had served in Berks County although appellant was serving a federal sentence while he was on loan to the authorities in Pennsylvania. The other prior adult convictions were as follows:

(a) a sentence of three (3) to five (5) years imprisonment in New Jersey for possessing stolen property, receiving stolen propérty and uttering a forged license (1972);
(b) five (5) years imprisonment for interstate transportation of a motor vehicle and criminal conspiracy (1970);
(c) one (1) year imprisonment in the federal penitentiary for possessing interstate cattle and the sale of interstate cattle (1979);
(d) five (5) years imprisonment for a federal probation violation;
(e) three and one-half (3V2) to seven (7) years imprisonment for escape (1980); and
(f) ten (10) to twenty (20) years imprisonment for armed bank robbery and escape (1981).

Because of appellant’s lengthy record and because appellant was serving a federal sentence and a state sentence while awaiting trial in Berks County, appellant was not entitled to credit for time served. See 19 P.S. § 898 (defendant entitled to credit for days spent in custody “on this offense”.) Also, we are unable to conclude that the trial court abused its discretion in imposing a sentence of not less than three (3) nor more than seven (7) years in prison in view of appellant’s lengthy record.

We also must reject appellant’s claim that the charges against appellant should be dismissed pursuant to Article IV of the Interstate Agreement on Detainers Act. Act of July 9, 1976, P.L. 586, No. 142 § 2 (1978), 42 Pa.C.S.A. § 9101 et seq. According to appellant, the charges should be dismissed because appellant was returned to federal custody before a retrial. The record shows that appellant was granted a new trial because appellant had not waived his right to representation by counsel in a voluntary and intelligent manner.

When prosecuting authorities in a jurisdiction in which charges are pending against a prisoner obtain temporary custody of the prisoner as the result of lodging a detainer and making a request, Article IV(e) requires a dismissal of the charges if the prisoner is returned to the original place of imprisonment without being tried. Id. In this case, appellant had been tried once; however, after appellant had been transferred back to the federal authorities pursuant to a writ of habeas corpus, appellant received a new trial.

Because appellant was commanded to appear in federal court, the “state officials are powerless to refuse to comply with the writ.” Commonwealth v. Lloyd, 341 Pa.Super. 107, 114, 491 A.2d 173, 176 (1985). Accordingly, we also must reject appellant’s second attempt to secure relief under this Act. Id.

Judgment of sentence is affirmed.

MONTEMURO, J., concurs in the result.

      . The court granted a demurrer on the burglary and criminal trespass charges.

      . The pertinent statute provides:
      (e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
      42 Pa.C.S.A. § 9101, Article IV(e).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    509 A.2d 872
    COMMONWEALTH of Pennsylvania, Appellee; v. Richard BRANDT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1986.
    Filed May 7, 1986.
    Reargument Denied June 16, 1986.

      Paul R. Gettleman, Zelienople, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before OLSZEWSKI, HOFFMAN and ROBERTS, JJ.
   OLSZEWSKI, Judge:

Appellant challenges the decision of the PCHA court denying his petition in which he alleged ineffective assistance of counsel. The basis for the claim concerned trial counsel’s failure to object to voir dire in chambers rather than in open court and trial counsel’s error in not preserving this claim for appeal by raising it in post-verdict motions.

Our decision today affirming the PCHA ruling in no way undermines the importance of an open trial, including a jury voir dire in open court as enunciated in Commonwealth v. Johnson, 309 Pa.Super. 367, 455 A.2d 654 (1982). The right to a public voir dire, however, is not the issue. Rather, we are called upon decide only if counsel’s actions taken in connection with the in-chambers questioning of potential jurors satisfies the applicable laws.

The procedural timetable involved is of great importance. After being arrested on May 11, 1981, appellant filed pretrial motions. Trial began on January 7, 1982 but ended in a mistrial on January 18, 1982 when the presiding judge was hospitalized. June 29, 1982 saw the beginning of appellant’s second trial. At this time, thirty-five potential jurors were seated in the courtroom, leaving a small amount of open space. The jurors were interviewed individually in the judge’s chambers, as was the practice at this time. See, Commonwealth v. Knight, 469 Pa. 57, n. 11, 364 A.2d 902, n. 11 (1976). No objection by trial counsel was made. This jury found appellant guilty on July 9, 1982. Post-verdict motions, filed July 16, 1982 with specific reasons filed December 2, 1982, were denied February 3, 1983. Appellant was sentenced several days later and timely filed a notice of appeal. This court affirmed sentence without an opinion. A Post-Conviction Hearing Act petition was filed December 12, 1984 and denied November 1, 1985. The issue of open voir dire was first raised in the PCHA petition.

On December 12, 1982, after appellant’s trial but during the pendency of his appeal, the Pennsylvania Superior Court handed down the decision in Commonwealth v. Johnson, 309 Pa.Super. 367, 455 A.2d 654 (1982), which held that the selection of jury is part of trial for purposes of a criminal defendant’s constitutional right to public trial; therefore, a defendant’s right to a public trial includes the right to have the jury that is to try him selected in public. The case was remanded for new trial. On the same day that appellant’s PCHA petition was denied, the Superior Court decided two cases, Commonwealth v. Johnson, 347 Pa.Super. 93, 500 A.2d 173 (1985); and Commonwealth v. Smith, 346 Pa.Super. 484, 499 A.2d 1104 (1985), holding that the right to open voir dire would not have retroactive effect. It is within this time frame that we assess appellant’s claim concerning counsel’s actions.

Pennsylvania law regarding ineffective assistance of counsel is well documented. Commonwealth ex rel. Wash ington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), enunciated the process to be used as a two-pronged analysis consisting first of a determination of whether the issue underlying the ineffectiveness claim is of arguable merit, and second whether the course chosen by counsel had some reasonable basis aimed at promoting the appellant’s interests. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985); Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984). Recently, an en banc Superior Court added another consideration. In addition to the above requirements, an appellant must establish that the ineffectiveness so prejudiced his case that he did not receive a fair trial. Commonwealth v. Pierce, supra. At all times through the process, the law presumes effective counsel and the burden of proving ineffectiveness of counsel rests with the appellant. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984).

Appellant’s first issue in which he argues that trial counsel was ineffective for not protecting appellant’s right to a public voir dire was raised and decided in Commonwealth v. Smith, supra. Following the opinion in Smith, we note that the accepted and usual method of selecting a jury at the time was the manner adhered to in this case. In addition, appellant failed to show in this case that public voir dire would have offered a potential for success greater than the selection process actually utilized or that he was prejudiced in any way because his trial counsel failed to request an alternate procedure. “A finding that appellant is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice....” Commonwealth v. Garvin, 335 Pa.Super. 560, 566, 485 A.2d 36, 39 (1984).

No prejudice or unfairness was alleged or shown. No one was denied admission and, more importantly, it was not even suggested that a jury selected in another manner would have resulted in a different verdict. This does not satisfy the requirement that the alternative not chosen offered a greater chance of success. More importantly, the trial court noted that:

In the chambers were the defendant, his attorney, the prosecutor, the court stenographer, the minute clerk, the Judge and anyone else who wished to enter, although space was as limited as it was in the courtroom. No order was made prohibiting the public to enter the courtroom or the chambers.

Tr.Ct.Op. at 2. Therefore, counsel’s conduct could not possibly be termed ineffective.

Appellant next argues that trial counsel was ineffective for not preserving the issue for appeal. As previously noted, the manner in which appellant’s jury was selected was not only not objected to at trial, but not raised in post-verdict motions nor on direct appeal. Once again looking to Smith for guidance, we deem the issue waived. Even if Commonwealth v. Johnson, 309 Pa.Super. 367, 455 A.2d 654 (1982), were to be given retroactive effect, it can be applied only to those cases where the issue in question is properly preserved at all stages of adjudication, including direct appeal. See Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982); Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983); Commonwealth v. Smith, supra. We will not find trial counsel ineffective for failing to act in this manner since he cannot be expected to possess the “qualities of a seer.” Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).

Order Affirmed.

      . We take notice of the lower court’s decision in which it is pointed out that appellant’s counsel himself has engaged in the exact same course of action he now claims results in ineffective assistance of counsel. PCHA opinion, November 1, 1985, pg. 2-3.

      . The court is aware that an argument could be made based on Commonwealth v. Johnson, 309 Pa.Super. 367, 455 A.2d 654 (1982) that prejudice need not be shown in this specific instance. We choose to follow the general rules of ineffective assistance and those cases which find prejudice a necessary element. See Commonwealth v. Smith, supra.; Commonwealth v. Johnson, 347 Pa.Super. 93, 500 A.2d 173 (1985).

      . Once again the court is conscious of appellant’s argument, citing Commonwealth v. Carr, 320 Pa.Super. 1, 466 A.2d 1030 (1983), that counsel can be held ineffective for not raising an issue in post-verdict motions when a leading case was decided between the time of trial and post-verdict motions. We prefer to follow the cases cited in our decision finding them better suited to our application.


author: CAVANAUGH, Judge:

text:
    509 A.2d 875
    COMMONWEALTH of Pennsylvania, Appellant, v. Nathaniel CHESSON, Appellee.
    Superior Court of Pennsylvania.
    Submitted Dec. 18, 1985.
    Filed May 20, 1986.
    Suzan E. Willcox, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Joseph A. Canuso, Philadelphia, for appellee.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   CAVANAUGH, Judge:

The Commonwealth appeals from the judgment of sentence entered against Nathaniel Chesson in the Court of Common Pleas of Philadelphia County on September 6, 1984. Mr. Chesson was convicted of terroristic threats and aggravated assault and was sentenced to a term of five years probation. The Commonwealth argues, inter alia, that in imposing sentence, the sentencing court deviated from the sentencing guidelines but failed to set forth on the record its reasons for deviating. We agree and remand for resentencing.

Appellee, Mr. Chesson, was involved in an altercation with Euripides Klassis wherein appellee assaulted Klassis with a lead pipe. Mr. Klassis sustained a multiple fracture to the left elbow and a broken right arm as a result of the assault.

The lower court opinion states that according to the sentencing guidelines, appellee had an offense gravity score of seven and a prior record score of two. For such a score, the guidelines recommend the following minimum sentence:

Minimum range 17-34 months
Aggravated minimum range 34-42
Mitigated minimum range 12-17 months

Thus, in imposing a sentence of probation, the court deviated from the guidelines.

The sentencing code states that “[t]he court shall ... consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing____” 42 Pa.C.S. § 9721(b). If the court sentences within the guidelines’ suggested ranges, there is no need for the sentencing court to otherwise manifest on the record that it considered the guidelines. In such a case, consideration of the guidelines is presumed to be evidenced by the actual sentence imposed. Where, however, the court deviates from the guidelines, the actual sentence imposed does not evidence that the court considered the guidelines. In such a case, “the court shall provide a contemporaneous written statement of the reason or reasons for deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.” 42 Pa.C.S. § 9721(b). Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984) liberalized this rule and allowed the sentencing court to orally state its reasons for deviation on the record. The court’s statement of reasons for deviating from the guidelines serves not only as a record of the court’s rationale for the deviation but also as evidence that the court considered the guidelines. We cannot analyze whether there are adequate reasons for the deviation unless it is first apparant that the court was aware of, and considered, the guidelines. The chief concern expressed in Royer was that the sentencing court be at least familiar with the suggested guidelines ranges.

“The sentencing guidelines are complex, including as they do references to ‘prior record score’, ‘offense gravity score’, ‘statutory classification’, ‘minimum range’, ‘aggravated minimum range’, and ‘mitigated minimum range.’ 42 Pa.C.S. § 9721. At the minimum, the court must indicate that it understands the sentencing guideline range, in those cases in which the court deviates from the guidelines.”

Commonwealth v. Royer, 328 Pa.Super. 60, 70, 476 A.2d 453, 458 (1984) (emphasis added).

In the instant case, the sentencing court failed to indicate that it was even aware of the guidelines’ ranges. We have reviewed the transcript of sentencing and find that nowhere did the court allude to the guidelines, nor indicate that it was aware of the guidelines’ suggested ranges. In short, the court below failed to follow the clear mandate of the sentencing code when it imposed a sentence outside the guidelines without explanation, and without even evidencing that it considered the guidelines.

This is not to say that we necessarily disagree with the court’s reasons for the sentence imposed. We make no judgment as to that question. We note that the lower court gave an exhaustive explanation for the sentence imposed and took into account the fact that appellee had completed serving the first prison sentence of his young life just days, before the sentencing proceeding and was satisfied that further incarceration now would serve no useful purpose. Our holding instantly is premised on the obligation of sentencing courts to consider the guidelines when it imposes sentence. The sentencing guidelines were formulated in order to weave rationality out of an all-too chaotic sentencing system wherein sentences sometimes varied widely from one county to the next, and even from one courtroom to the next in the same county. The guidelines merely set forth suggested minimum ranges and the court is not obligated to follow them. The sentencing code, however, mandates that sentencing courts consider the guidelines before sentencing. Manifestation of such consideration is statutorily required when the court deviates. And, of course, the reasons for the deviation must be “adequate”. The general statement of reasons for all sentences required by Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) will not satisfy the requirement that the court state adequate reasons for the sentence imposed when it deviates from the guidelines.

The sentencing code clearly requires that we vacate the sentence and remand for resentencing in the instant case.

Sentence vacated; case remanded for resentencing.


author: BECK, Judge:

text:
    509 A.2d 1263
    COMMONWEALTH of Pennsylvania v. John SPEIGHTS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1985.
    Filed April 3, 1986.
    Reargument Denied June 16, 1986.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   BECK, Judge:

The sole issue in this appeal is whether, without explanation by expert testimony, the result of a breathalyzer test administered two hours and forty-five minutes after appellant operated a motor vehicle, constitutes sufficient evidence to convict appellant of violating subsection 3731(a)(4) of the Vehicle Code, namely, “[a] person shall not drive, operate or be in actual physical control of the movement of any vehicle while ... the amount of alcohol in the blood of the person is 0.10% or greater.” We hold that a breathalyzer test result can, by itself, support a conviction under subsection 3731(a)(4), and accordingly, we affirm the order of the court of common pleas.

At a trial in the Philadelphia Municipal Court, appellant was convicted of having a blood alcohol level of 0.10% or greater while he was operating a vehicle. 75 Pa.C.S.A. § 3731(a)(4). Appellant then filed a petition for a writ of certiorari in the Court of Common Pleas of Philadelphia County. From the denial of the petition, appellant brought the present appeal contesting the sufficiency of the evidence of his conviction.

Our scope of review in considering a claim of insufficient evidence is to view the evidence, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Dincel, 311 Pa.Super. 470, 457 A.2d 1278 (1983). The test is whether the evidence, when so viewed, is sufficient to permit a finding of guilt beyond a reasonable doubt. Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984).

Appellant was arrested at approximately 5:00 p.m. The arresting officer testified that although appellant’s car did not collide with anything, it was swerving from side to side on the road and nearly struck some parked vehicles. Furthermore, the officer stated that appellant ran a red light and did not pull over in response to the officer’s having sounded his police car siren. When appellant eventually stopped, the officer observed that appellant had bloodshot eyes and that there was a heavy odor of alcohol emanating from inside appellant’s car. In addition, the officer stated that when appellant stepped outside his vehicle, he staggered and almost fell to the ground.

Appellant testified that he left work at 4:00 p.m., stopped at a bar and purchased a six-pack of beer. He testified he drank one can of beer between 4:00 and 5:00 p.m. (the latter being the approximate time of his arrest) and drank no other alcoholic beverage that day. At approximately 7:45 p.m., two hours and forty-five minutes after his arrest, appellant was given a breathalyzer test by a state-certified breathalyzer operator who used a breathalyzer machine that was duly certified according to the regulations of the Pennsylvania Departments of Transportation and Health. See subsection 1547(c) of the Vehicle Code, 75 Pa.C.S.A. § 1547(c). The breathalyzer recorded appellant’s blood alcohol content as 0.12%.

Thereafter, appellant was charged solely with violating subsection 3731(a)(4) of the Vehicle Code. The Commonwealth could also have charged appellant with a violation of subsection 3731(a)(1) of the Vehicle Code which prohibits the operation of a motor vehicle by a person while “under the influence of alcohol to a degree which renders the person incapable of safe driving.” Appellant concedes that the evidence offered at trial would have been legally sufficient to convict him under subsection 3731(a)(1). Nevertheless, since appellant was not charged under subsection 3731(a)(1), it is irrelevant that the evidence adduced in this case would have sufficed to convict appellant of violating subsection 3731(a)(1). See, e.g., United States v. Cusmano, 659 F.2d 714, 719 (6th Cir.1981); United States v. Pepe, 198 F.Supp. 226, 229 (D.Del.1961); Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972); Commonwealth v. Lambert, 226 Pa.Super. 41, 44, 313 A.2d 300, 301 (1973).

A subsection 3731(a)(4) offense contains two elements: (1) the operation of a motor vehicle and (2) the presence of at least 0.10% alcohol by weight in the motorist’s blood during the course of that operation. Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983). In this case the first element is undisputed since appellant was arrested while driving his car. Thus, the only question before us is whether the Commonwealth failed to offer sufficient proof beyond a reasonable doubt to establish the second element of the offense — that at the time appellant was driving, appellant’s blood alcohol content was 0.10% or greater.

At trial, the result of a breathalyzer test administered two hours and forty-five minutes after appellant’s arrest comprised the sole evidence of appellant’s blood alcohol level while appellant was driving. Appellant does not contest the admissibility of the breathalyzer test result. Unquestionably, the breathalyzer test result satisfied the statutory requirements for introduction into evidence since the breathalyzer test was “conducted [on appellant] by qualified persons using approved equipment,” 75 Pa.C.S.A. § 1547(c), and was done at the request of a police officer who had “reasonable grounds to believe [appellant] to have ... [operated] a motor vehicle ... while under the influence of alcohol____” 75 Pa.C.S.A. § 1547(a); Commonwealth v. Sweet, 232 Pa.Super. 372, 335 A.2d 420 (1975), allocatur denied, May 22, 1975 (the chemical testing provisions now codified at 75 Pa.C.S.A. § 1547 formerly appeared at 75 P.S. § 624.1). Moreover, even prior to the enactment of subsection 3731(a)(4), blood alcohol test results were routinely admitted into evidence where the tests were given remote in time from the occurrence of the alcohol-connected offense. Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980) (blood sample taken approximately two hours and seventeen minutes after defendant’s vehicular accident); Commonwealth v. Tylwalk, 258 Pa.Super. 506, 393 A.2d 473 (1978) (breathalyzer and chemical tests administered approximately four hours and fifteen minutes after defendant’s hit-and-run accident); Commonwealth v. Trefry, 249 Pa.Super. 117, 375 A.2d 786 (1977) (blood sample drawn from defendant about one hour and thirty-eight minutes after defendant’s hit-and-run accident).

Notwithstanding the admissibility of the blood alcohol test result, appellant contends that where, as in his case, a considerable time span elapsed between the commission of the alcohol-connected vehicular offense and the performance of a blood alcohol test, expert testimony was needed to relate the test result back to the pertinent statutory time frame, namely, the period preceding the test when the accused was operating a motor vehicle. At appellant’s trial the Commonwealth did not offer any expert testimony relating the breathalyzer test result to appellant’s blood alcohol level when appellant was driving two hours and forty-five minutes before the test was conducted. Hence, appellant asserts that the Commonwealth presented insufficient evidence that his blood alcohol content, by weight, was 0.10% or greater while he was actually driving.

For the following reasons, we conclude that the Commonwealth is not required to offer evidence relating a blood alcohol test result back to the time of a vehicular offense and that the absence of expert testimony relating back a remote test result will not render the test result insufficient evidence upon which the fact-finder may convict a defendant of violating subsection 3731(a)(4) of the Vehicle Code.

Preliminarily, we note “[i]t is the norm rather than the exception that, in the case of an automobile accident, some time passes between the incident and the arrival of police at the scene, or police apprehension of the motorist who has simply continued on after the accident.” Tylwalk, 258 Pa.Super. at 510, 393 A.2d at 475. Thus, there is ordinarily a time lapse between the occurrence of a vehicular offense and the performance of a blood alcohol test on a motorist. We now consider the effect of the customary pre-test delay on an accused’s blood alcohol level.

As a majority of our court observed in Schwarzbach v. Dunn, 252 Pa.Super. 454, 381 A.2d 1295 (1977), allocatur denied, April 5, 1978, “[ajlcohol has no effect until absorbed into the bloodstream which occurs from 30 minutes to 90 minutes after consumption.” Id., 252 Pa.Superior Ct. at 461, 381 A.2d at 1298. Thus, if a defendant’s drinking is confined to a period immediately before arrest, a test within the first 30 minutes after arrest may show a low blood alcohol content whereas a test within 60 minutes after arrest may indicate a high blood alcohol level. See, e.g., McCormick on Evidence § 205 (E. Cleary 3d ed. 1984); A. Moenssens & F. Inbau, Scientific Evidence in Criminal Cases (2d ed. 1981); Fitzgerald & Hume, The Single Chemical Test for Intoxication: A Challenge to Admissibility, 66 Mass.L.Rev. 1 (1981).

However, “the percentage of alcohol in the bloodstream diminishes rapidly after drinking ceases.” Trefry, 249 Pa. Super, at 126, 375 A.2d at 791 (citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). Thus, if an accused stops drinking 30 to 90 minutes before arrest, the accused’s blood alcohol content will probably be falling at the time of arrest. The accused will accordingly benefit from a pre-test delay due to the “evanescent nature of the alcohol in [the] bloodstream.” Commonwealth v. Anderl, 329 Pa.Super. 69, 85, 477 A.2d 1356, 1364 (1984); Trefry (citing Schmerber); see, e.g., McCormick on Evidence, supra, at § 205; Moenssens & Inbau, supra; Fitzgerald & Hume, supra.

Remoteness in testing for blood alcohol raises the same problems as remoteness in other types of testing, i.e., the reliability of the test result. However, in this situation, the remoteness in time usually inures to the benefit of the defendant. The more remote in time, the more likely that the defendant’s blood alcohol content will register lower than it was at the time he was driving.

Recognizing the fact that the remoteness of a blood alcohol test generally inures to the benefit of the defendant-driver, the Pennsylvania legislature has not placed time restrictions on the use of blood alcohol test results but has provided a method whereby the reliability of such results can be challenged. Section 1547 of the Vehicle Code, 75 Pa.C.S.A. § 1547 (chemical testing provision). Such an approach is consistent with the legislature’s “compelling interest in protecting the health and safety of the travelers upon our highways and roads against the ravage cause by drunken drivers,” Mikulan, 504 Pa. at 251, 470 A.2d at 1342 (emphasis in original), and is also consonant with protection of an accused against arbitrary government action or lack of due process. Id.

Under section 1547 of the Vehicle Code, our legislature has not prescribed statutory time limits within which blood alcohol testing must be conducted in order to constitute acceptable evidence of an accused’s blood alcohol level while driving. Tylwalk; Trefry. Moreover, the legislature has not mandated that the Commonwealth adduce evidence corroborating or explaining blood alcohol test results except for that evidence necessary to establish the admissibility of the test results pursuant to subsections 1547(a) and 1547(c), i.e., probable cause to order a test and proper administration of the test. Commonwealth v. DiFrancesco, 458 Pa. 188, 329 A.2d 204 (1974), reh’g denied, December 17, 1974. Nevertheless, we emphasize that the Commonwealth is not relieved of its burden of proving beyond a reasonable doubt that an accused has committed an alcohol-connected vehicular offense. Id.; Commonwealth v. Gearhart, 253 Pa.Super. 238, 384 A.2d 1321 (1978); see Arizini; Tylwalk; Trefry.

If a defendant wishes to contest the reliability of the blood alcohol test results proffered by the Commonwealth, he is statutorily permitted to do so. DiFrancesco; Arizini; Tylwalk; Trefry. Subsection 1547(f) of the Vehicle Code specifically states that the other subsections of the Code’s chemical testing provision “shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of alcohol.” See also DiFrancesco. Furthermore, subsection 1547(h) of the Vehicle Code allows a defendant to introduce into evidence the results of an additional blood alcohol test performed by a physician of the defendant’s own choosing. “At trial, the results of a test, as indicative of [blood alcohol content] at a relevant point in time, may be attacked or contradicted by any competent evidence. The weight to bfe accorded test results then properly rests with the finder of fact.” Trefry, 249 Pa.Super. at 130, 375 A.2d at 793 (footnote deleted); Arizini; Tylwalk.

Accordingly,. we hold that blood alcohol test results can — by themselves, without explanation by expert testimony — suffice to support a conviction under subsection 3731(a)(4) but that blood alcohol test results do not compel the trier of fact to find a defendant guilty of violating subsection 3731(a)(4) where there is competent evidence of record challenging said test results.

Our holding conforms with the purpose underlying the legislature’s enactment of subsection 3731(a)(4), namely, the exercise of the legislature’s “broad police powers ... in an attempt to halt, or at least to retard, the wanton and senseless slaughter of and injury to innocent people upon our highways caused by drunk drivers.” Mikulan, 504 Pa. at 248, 470 A.2d at 1341. We recognize the creation of the per se subsection 3731(a)(4) violation as an additional pronouncement by the legislature of its clear intention to adopt a more stringent view toward drunk driving offenses in an effort to curb the burgeoning epidemic of alcohol-connected vehicular accidents by placing “the risk of erroneous judgment of alcohol consumption on the person who has the choice, the drinking driver, rather than upon the unwitting and innocent victims of his or her erroneous judgment.” Mikulan, 504 Pa. at 255, 470 A.2d at 1344.

Order affirmed.

      . 75 Pa.C.S.A. § 3731(a)(4).

      . A petition for a writ of certiorari is an alternative to an appeal for a trial de novo in the common pleas court. Commonwealth v. Frazier, 324 Pa.Super. 334, 471 A.2d 866 (1984); Commonwealth v. Dincel, 311 Pa.Super. 470, 457 A.2d 1278 (1983). Whereas the petition requests that the common pleas court review the record made in the municipal court, the appeal gives the defendant a new trial without reference to the record established in the municipal court. Frazier. The following example illustrates the difference between the two procedures: "[I]f the evidence was insufficient to sustain the conviction, [the] ... writ of certiorari would terminate the prosecution, while a de novo appeal would merely require a new trial at which the Commonwealth would have another opportunity to convict the defendant.” Id. 324 Pa.Super. at 338, 471 A.2d at 868 (emphasis deleted).

      . 75 Pa.C.S.A. § 3731(a)(1).

      . The breathalyzer test measures breath, not blood, and is an indirect or derived means of establishing blood alcohol content. A. Moenssens & F. Inbau, Scientific Evidence in Criminal Cases 78-83 (2d ed. 1981).

      . Section 3731 of the Vehicle Code was amended on December 15, 1982, to add the new offense of subsection (a)(4), operating a vehicle while the motorist’s blood alcohol content was 0.10% or greater. Subsection 3731(a)(4) became effective on January 15, 1983.

      . Although Schwarzbach v. Dunn, 252 Pa.Super. 454, 381 A.2d 1295 (1977), allocatur denied, April 5, 1978, resulted in a plurality decision, five of the seven judges deciding the case agreed that alcohol was absorbed into the bloodstream within 30 to 90 minutes after imbibition. Both Judge Watkins’ lead opinion (joined by Judges Jacob and Van der Voort) and Judge Price’s concurring opinion (joined by Judge Spaeth) stated that the alcohol absorption rate had been scientifically established at 30 to 90 minutes after alcohol ingestion.

      . 75 Pa.C.S.A. § 1547(f).

      . 75 Pa.C.S.A. § 1547(h).


author: WICKERSHAM, Judge:

text:
    509 A.2d 1268
    Nettie M. WATTS, Administratrix of the Estate of Bernard Watts, Deceased and Nettie M. Watts, In Her Own Right, Appellant, v. OWENS-CORNING FIBERGLAS CORPORATION & Owens-Illinois, Inc. & Pittsburgh Corning Corporation & Eagle-Picher Industries, Inc. & Nicolet Industries, Inc. & Raymark Corporation & Raymark Industries, Inc. & Raybestos-Manhattan, Inc. & Celotex Corporation & H.K. Porter and Company, Inc. & Southern Asbestos Company & D.A.R. Industrial Products, Inc. & A.C. and S. Corporation & Keene Corporation & Pacor, Inc. & Armstrong World Industries, Inc. & Armstrong Cork Company & Forty-Eight Insulation, Inc. & Fibreboard Corporation & GAF Corporation & Asten-Hill Company & Rubberoid Company & Garlock, Inc. & Turner and Newall Limited & Uni-Royal, Inc. f/k/a U.S. Rubber Company, Inc.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed April 16, 1986.
    Reargument Denied June 19, 1986.

      No appearance nor briefs entered on behalf of appellant.
    Joseph W. McGuire, Philadelphia, for appellees.
    Before: CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   WICKERSHAM, Judge:

Before us are twelve consolidated appeals stemming from twelve orders of the Court of Common Pleas of Philadelphia County, granting summary judgments in favor of twelve of the twenty-five defendants involved in an asbestos-related disease action.

Appellant’s husband, Bernard Watts, was employed at the Philadelphia Naval Shipyard from 1940 to 1951 and at the Naval Air Development Center from 1951 to 1980. In 1979, he was discovered to have lung cancer. He died on May 23, 1981. On May 16, 1983, appellant commenced this action by obtaining a writ of summons. Appellant failed however to deliver the writ to the sheriff for service within the thirty days specified by Pa.R.C.P. No. 1009(a). In fact, the writ was not reissued until more than three months later, on August 23, 1983. On August 17, 1983, appellant filed a complaint, which was reinstated on September 3, 1983. Service was subsequently made on all defendants, including appellees.

A flurry of pleadings followed, but the only pleadings of importance herein were motions for summary judgments made by appellees. The gist of these motions was that appellant’s complaint should be dismissed as time-barred by the statute of limitations. The lower court agreed and, in a series of orders from March 1984 to April 1985, granted the motions. To each order, appellant filed a timely appeal. These appeals are before us now.

The question presented is whether appellant’s failure to effectuate timely service of the writ rendered it a nullity, thus causing appellant’s action to be time-barred as failing to be filed within the two-year statute of limitations. After carefully reviewing the arguments presented to us by the parties, the record on appeal, the thorough opinions of the Honorable Harry A. Takiff dated March 22, 1984 and June 21, 1984, and the applicable caselaw, we conclude that appellant’s action was indeed time-barred by her failure to file it within the two-year period following the death of Bernard Watts.

Pa.R.C.P. No. 1007 provides that a civil action may be commenced by filing with the prothonotary a praecipe for a writ of summons. Pa.R.C.P. No. 1009(a) provided, at all relevant times herein, that the writ “shall be served by the sheriff within thirty (30) days after issuance or filing.” Thus, while the actual filing of a praecipe for a writ of summons commences the action and tolls the applicable statute of limitations, at least since the landmark decision in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), if the plaintiff fails to make a good faith effort to effectuate service of the writ within thirty days of its issuance, the original filing of the writ will not toll the statute. As our supreme court stated in Lamp v. Heyman, supra:

[W]e rule that henceforth, i.e., in actions instituted subsequent to the date of this decision, a writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion ... [A] plaintiff should comply with local practice as to the delivery of the writ to the sheriff for service. If under local practice it is the prothonotary who both prepares the writ and delivers it to the sheriff, the plaintiff shall have done all that is required of him when he files the praecipe for the writ; the commencement of the action shall not be affected by the failure of the writ to reach the sheriff’s office where the plaintiff is not responsible for that failure. Otherwise, the plaintiff shall be responsible for prompt delivery of the writ to the sheriff for service.

Id., 469 Pa. at 478-79, 366 A.2d at 889.

Subsequent decisions of our court have discussed the conduct which “serves to stall in its tracks the legal machinery” set by plaintiff when he files a praecipe for a writ of summons. See, e.g., Delphus v. Kastanek, 267 Pa.Super. 26, 405 A.2d 1285 (1979) (action was barred by statute of limitations where the action was timely filed, but plaintiff neglected to deliver writ to the sheriff for service until eight days beyond the thirty day expiration period for service). In Jacob v. New Kensington Y.M.C.A., 312 Pa.Super. 533, 459 A.2d 350 (1983) our court interpreted Lamp v. Heyman as necessitating a case-by-case analysis of whether a plaintiff had made a good-faith effort to comply with the local service rules. While we found that the plaintiff in Jacob had made such a good-faith effort, there is no evidence in the instant case that appellant made any effort, let alone a good-faith effort, to comply with the local service rules. See Robinson v. Trenton Dressed Poultry Co., 344 Pa.Super. 545, 496 A.2d 1240 (1985).

We find this case to be factually similar to Weiss v. Equibank, 313 Pa.Super. 446, 460 A.2d 271 (1983). In that case, the plaintiffs filed a praecipe for a writ of summons on the last day before the running of the applicable statute of limitations. However, they failed to give directions to the sheriff for service or pay for the costs of service, as required by local rules. The plaintiff/appellants in Weiss explained those failures as unintentional mistakes. Despite their arguments that they did not intentionally stall service of the writ nor act in bad faith, our court affirmed the dismissal of plaintiffs’ case, stating:

First, neglecting to pay the sheriff’s fee was one of the examples given by the supreme court [in Lamp v. Heyman], 469 Pa. at 472, 366 A.2d at 886, of methods used by plaintiffs to delay service of the writ. Second, simple neglect or mistake is an example of failing to fulfill the responsibility on plaintiff or his counsel to see to it that the requirements for service are carried out. See Delphus v. Kastanek, 267 Pa.Super. 26, 405 A.2d 1285 (1979). Compare Pannill v. Seahorne, 278 Pa.Super. 562, 420 A.2d 684 (1980). Untoward circumstances, such as a third person preventing delivery to the sheriff of the writ, may except a plaintiff from the rule of Lamp, see, e.g., Sweet v. Ayres, 277 Pa.Super. 236, 419 A.2d 749 (1980), but the facts of this case do not warrant such an exception.

Id., 313 Pa.Super. at 455, 460 A.2d at 275.

In the case at bar, appellant’s decedent died on May 23, 1981. Pursuant to 42 Pa.C.S. § 5524(2), appellant had to commence her action by May 23, 1983. On May 16, 1983, appellant filed a praecipe for a writ of summons, but failed to deliver the summons to the sheriff for service within thirty days. It was not until August 23, three months after the running of the statute of limitations, that appellant had the writ of summons reissued. Therefore, under Lamp v. Heyman and its progeny, appellant failed to perfect a cause of action against appellees within the time allowed by statute. Appellant’s contention that there must be some bad-faith act or overt attempt to delay by plaintiff before the Lamp v. Heyman rule applies, is simply not born out by the caselaw. See Weiss v. Equibank, supra. Finally, appellant’s contention that appellees must allege prejudice or hardship caused by the delay is not correct. A lack of prejudice to a defendant does not excuse a plaintiff’s failure to comply with the requirements of the applicable statute of limitations.

Statutes of limitations are statutes of repose and on their face they seek to create time bars which are mechanical in their application and have no relationship to the merits of the claim or whether, as in the case of laches, any harm results to the defendant from the delay.

Stephen M. Feldman, Pennsylvania Trial Guide, Vol. 2, Limitation of Actions § 22.2 (1978).

Accordingly, we affirm the orders of the lower court granting summary judgments in favor of appellees.

Orders affirmed.

      . Summary judgments were granted to the following defendant-appellees on the following dates: Armstrong World Industries, Inc., March 22, 1984 (Appeal No. 1014 Phila. 1984); Pittsburgh Corning Corp., June 21, 1984 (Appeal No. 2005 Phila. 1984); Owens-Corning Fiberglas Corp., August 30, 1984 (Appeal No. 2655 Phila. 1984); Eagle-Picher Industries, Inc., September 12, 1984 (Appeal No. 2716 Phila. 1984); Pacor, Inc., November 13, 1984 (Appeal No. 3304 Phila. 1984); Keene Corp., November 13, 1984 (Appeal No. 3305 Phila. 1984); Celotex Corp., January 7, 1985 (Appeal No. 323 Phila. 1985); H.K. Porter & Co., Inc., March 1, 1985 (Appeal No. 792 Phila. 1985); Southern Asbestos Co., March 1, 1985 (Appeal No. 793 Phila. 1985); Raymark Industries, Inc., April 16, 1985 (Appeal No. 1245 Phila. 1985); Forty-Eight Insulation, Inc., April 11, 1985 (Appeal No. 1246 Phila. 1985); and Uni-Royal, Inc., April 16, 1985 (Appeal No. 1247 Phila. 1985). Appellant has advised our court by letter dated December 3, 1985 that the twelfth appeal, against Uni-Royal, Inc., has been settled.

      . In some cases, motions for judgment on the pleadings, which were treated as motions for summary judgment, were made.

      . 40 Pa.C.S. § 5524(2).

      . Appellant states the issue as follows:

        Did the filing of a Writ of Summons by the plaintiff and the subsequent steps taken to effectuate service suffice to toll the Statute of Limitations?
      Briefs for Appellant at 2. In Appeals No. 1245, 1246, and 1247 Philadelphia 1985, appellant raises a second issue:
      Is the discovery rule properly applicable to a wrongful death and survival action where decedent’s representatives were unable to ascertain that there was a causal connection between decedent’s injury and negligence of another party and such discovery took place more than two years after decedent’s death.
      Brief for Appellant at 2. After carefully examining the record in the case, however, we must conclude that this second issue is waived, due to appellant’s failure to raise it in the lower court. See Neshaminy Water Resources Authority v. Del-Aware Unlimited, Inc., 332 Pa.Super. 461, 481 A.2d 879 (1984); Pa.R.A.P. 302(a).

      . Pa.R.C.P. No. 1009(a) was rescinded on June 20, 1985, effective January 1, 1986. A similar rule can now be found at Pa.R.C.P. Nos. 400 and 401.


text:
    509 A.2d 1271
    In re ESTATE OF Anna W.M. OGDEN, Deceased. Appeal of William T. DOM, III, Esq.; Lela Dom McKenney; Jane C. Sweeney; Daniel L. Caster; Edward Charles Dom; Richard McCullough Dom; William T. McKenney; Robert W. McKenney, Jr.; William T. Dom, IV; Denna Ogden Dom; George Byers Dom, Beneficiaries Under the Will and the Trust of Anna W.M. Ogden, Deceased. In re ESTATE OF Anna W.M. OGDEN, Deceased, Trust For Robert Mills Dom. Appeal of William T. DOM, III, Esq.; Lela Dom McKenney; Jane C. Sweeney; Daniel L. Caster; Edward Charles Dom; Richard McCullough Dom; William T. McKenney; Robert W. McKenney, Jr.; William T. Dom, IV; Denna Ogden Dom; George Byers Dom, Beneficiaries Under the Will and the Trust of Anna W.M. Ogden, Deceased.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1986.
    Filed April 18, 1986.
    Reargument Denied June 25, 1986.

      Stanley Yorsz, Pittsburgh, for appellants.
    Before BROSKY, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

This action was initiated by petitions for distribution filed by the trustee of the inter vivos and testamentary trusts of Anna Ogden, decedent. The court below determined that persons in the class of beneficiaries could not be excluded from distribution because they had been adopted into the class and not born into it. We agree.

Anna Ogden died on July 23, 1950. On December 31, 1941, she had entered into an irrevocable trust agreement, which has been properly recorded. Decedent also left a will dated November 4, 1944, which was duly probated and is of record. The trust and the will provide for distribution of income among eight named grandnieces and grandnephews. The deaths without issue (natural or adopted) of two of the named beneficiaries reduced the distribution from eighths to sixths. Catherine Dom McCarrell, one of the named beneficiaries who was receiving income from the trust, died on October 25, 1982. She is survived by her children — Malcolm W. McCarrell, born November 25, 1950, and adopted April 4, 1952; and Rachel McCarrell McCune, born March 15, 1952, and adopted February 16, 1953. By petitions for distribution, the trustee requested the court to determine who is entitled to the distribution of income previously paid to Catherine Dom McCarrell.

The question before us is whether the children of Catherine Dom McCarrell are entitled to her one-sixth share of income from the trusts, as the children of the other named beneficiaries are entitled to their parents’ share of income upon their parents’ demise, or are prohibited from receiving their mother’s share because they were adopted by her and not born to her. The lower court answered this question in favor of the adopted children of Catherine Dom McCarrell. Appellants make two allegations of error. Initially, appellants urge us to find that the trial court erred in holding that adopted children are members of a class of beneficiaries described in the will and trust of Anna Ogden as “children” and “heirs of the body.” Appellants also argue that the intent of Anna Ogden to exclude adopted children is apparent from the words of the will and trust, and that it was error for the court to resort to statutory rules of interpretation to conclude otherwise. These arguments are without merit.

The issues appellants raise attempt to assign meaning to an entire will and trust document on the basis of words and phrases pulled from their context and isolated from their textual setting. When subject to such extraction, words lose their efficient utility. They are no longer expressive of the will of their author. Any attempt to interpret the decedent’s intent mandates consideration of all the language contained in her will and trust. In re Estate of MacFarlane, 313 Pa.Super. 397, 401, 459 A.2d 1289, 1291 (1983); In re Bowman’s Estate, 332 Pa. 197, 2 A.2d 725 (1938) (court determining settlor’s intent, regarding will provision creating trust, cannot restrict itself to single word used in will, but must examine entire instrument). Additionally, the words of the instruments are not viewed in a vacuum. They gain content from decedent’s scheme of distribution and the facts and circumstances that surrounded her when the instruments were made. See, e.g., MacFarlane 313 Pa.Super. at 401, 459 A.2d at 1291.

We begin our inquiry by setting forth those portions of the documents bearing on decedent’s trusts. The will reads:

THIRD — All of the balance of the contents of my house and garage shall be divided equally among all the remaining children of WILLIAM T. DOM, JR., or, if any of the said children be dead, to the heirs of their body and where they have no heirs of their body, then among the surviving children, share and share alike____
FOURTH — I give and bequeath to BRIAN OGDEN LYNCH, the adopted son of my grandniece, ISABELLE LYNCH, the sum of ONE THOUSAND ($1,000.00) DOLLARS....
All the rest, residue and remainder of my estate, either real, personal or mixed and wheresoever situate, I give, devise and bequeath to BARCLAY-WESTMORELAND TRUST COMPANY of Greensburg, Pennsylvania, my Trustee hereinafter named for the following uses and purposes only, to wit:
The said income shall be divided into eight equal shares or interests and the same shall be paid in one share or interest to each of the following children of my two nephews, WILLIAM T. DOM, JR., and JOHN M. DOM, to wit:
ANNA DOM CASTER ... a one one-eighth interest; to LELA DOM McKENNEY ... a one one-eighth interest; to MARY JANE DOM ... a one one-eighth interest; to WILLIAM DOM III ... a one one-eighth interest; to ISABELLE DOM LYNCH ... a one one-eighth interest; to CATHERINE DOM (McCarrell) ... a one one-eighth interest; to RACHEL DOM ... a one one-eighth interest; and to JOHN M. DOM, JR., ... a one one-eighth interest equally, share and share alike for and during their natural lives, and in the event that any of the said eight beneficiaries predecease the testatrix or die at any time after my decease, then, and in such event her or his equal share of . the income of this trust shall be paid to her or his child or children of his or her body until the last of the said eight grandnieces and grandnephews shall die, and, in the event the youngest child of the said eight beneficiaries, and ROBERT MILLS DOM, son of ROBERT McCUNE DOM, deceased, has not reached the age of twenty-one (21) years, then, the trust shall continue, but each of the said children of the body of the nine beneficiaries shall receive an equal distributive share of the corpus of the trust, that is to say that the distribution shall be made per capita and not per stirpes, and the said ROBERT MILLS DOM shall share equally as one of the children of my grandnieces and grandnephews upon the decease of the last survivor.

Reproduced record at 39a-40a.

The trust, which was executed some two years and ten months prior to the will, contains the following language:

(b) After the death of the said ANNA W.M. OGDEN, all of the new income ... shall be paid to ANNA DOM CASTER ...; LELA DOM McKENNEY ...; MARY JANE DOM ...; WILLIAM T. DOM III ...; and ISABELLE DOM LYNCH ...; CATHERINE DOM (McCarrell) ...; RACHEL DOM ...; JOHN M. DOM, JR. ...; son of my nephew JOHN M. DOM, equally, share and share alike, for and during their natural lives, and in the event of the death of any one of the said eight (8) beneficiaries during the life or lives of any of the other beneficiaries hereinabove named, then and in such event her or his equal share of the income from this Trust shall be paid to her or his children; and in the event that the said beneficiary or beneficiaries may die for and during the life of this Trust, then to the heirs of their body until such time as all of the eight (8) beneficiaries shall die.
(c) In the event that any one or more of the said eight (8) beneficiaries as hereinabove named and designated shall die without heirs of the body, then and in such event his or her share shall go to the survivors who may then be living or, if dead, to the heirs of their body who may then be living, equally share and share alike, per stirpes and not per capita.
(d) After the death of all of said eight (8) beneficiaries as hereinbefore named, to wit, ANNA DOM CASTER, LELA DOM McKENNEY, MARY JANE DOM, WIL-. LIAM T. DOM III, ISABELLE DOM LYNCH, CATHERINE DOM (McCarrell), RACHEL DOM AND JOHN M. DOM, JR., the income from said Trust shall continue to be paid to the children of the said beneficiaries or the survivors of them, until the youngest child of any one of the said beneficiaries shall arrive at the age of twenty-one (21) years, then all of the corpus of this Trust and any income in the hands of the TRUSTEE shall be divided among all of the said children of said beneficiaries equally, share and share alike, per stirpes and not per capita____if the said real estate shall have been converted into cash, of the cash invested by the said Trustee then said children shall be paid his or her full share of the said Trust in cash, or in real estate as hereinbefore set forth when the youngest child of any one of said beneficiaries arrives at the age of twenty-one (21) years.

Reproduced record at 34a-35a.

The issue to be determined is raised by the decedent’s use of the phrases “heirs of the body” and “children of the body.” By choice of these phrases did the decedent, at the time of the creation of the trusts, intend only blood relatives to share as beneficiaries or was the intention to include adopted children? Taken alone, the language of the instruments is inconclusive, as is evidenced by the inconsistent, varying, and interchangeable use of the terms “heirs of the body” and “children.” As the lower court points out “(t)he trust uses the phrase ‘heirs of the body’ in its various forms exactly three (3) times. The term ‘child’ or ‘children,’ unmodified, appears eight (8) times.” Opinion of the lower court at 9. Decedent’s will also refers to “children,” “heirs of the body,” and “children of the body.” Reproduced record at 39a-40a.

It is not unusual for the court to be called upon to determine the meaning of a testator’s or settlor’s words. It is the decedent’s intent which controls; however, the courts have promulgated guidelines to help determine that intent.

Although we have never before addressed the phrases used by decedent, the question of a testator’s or settlor’s intent regarding adopted children is not novel. The guideline for construing intent in such cases is unmistakeable— absent a clear expression of contrary intent, adoptees are included in general designations such as “children” or “issue.” In re Estate of Tafel, 449 Pa. 442, 296 A.2d 797 (1972). This rule of construction, first adopted in Tafel, has been affirmed numerous times by this Court and our Supreme Court.

Where, as here, a testator has expressed no clear intent with regard to adopted children and directs only that a distribution be made to “issue,” it is a settled canon of construction that the testator intended to include adopted children within his bounty. Estate of Sykes, 477 Pa. 254, 383 A.2d 920 (1978) (bequest to “issue” presumed to include adopted children); Estate of Sewell, 487 Pa. 379, 409 A.2d 401 (1979) (same). See Tafel Estate, 449 Pa. 442, 296 A.2d 797 (1972) (adopted children permitted to take under bequest to testator’s “children”); Estate of Flinn, 479 Pa. 312, 388 A.2d 672 (1978) (bequest to “children” of testator’s children presumed to include adoptees); Estate of DeRoy, 481 Pa. 403, 392 A.2d 1355 (1978) (adopted child permitted to take under bequest to “children” of testator’s children; Estate of Biddle, 487 Pa. 616, 410 A.2d 782 (, cert. denied, DaCosta v. DaCosta, 101 S.Ct. 84, 449 U.S. 824, 66 L.Ed.2d 27) (1980) (adopted child permitted to take under bequest to “children and issue” of testator’s grandchildren). See also Farmers Trust Co. v. Bashore, (498 Pa. 146, 445 A.2d 492 [1982]) supra (conveyance to “children” of settlor’s children in inter vivos trust presumed to include adoptee).

In re Estate of Ketcham, 343 Pa.Super. 534, 538-39, 495 A.2d 594, 596-597 (1985) (quoting Estate of Riley, 498 Pa. 395, 397-398, 446 A.2d 903, 904-905 (1982)).

We agree with the court below that Tafel was a major statement of public policy. Opinion of the lower court at 1276. In that case our Supreme Court pointed out that “whenever the legislature has spoken on the effect of an adoption once decreed, the legislature has expressly, specifically and unequivocally mandated that the adopted person ‘shall have all the rights of a child and heir of’ the adoptive parents.” Tafel 449 Pa. at 447, 296 A.2d at 799-800. The Supreme Court went so far as to call this a “legislative mandate.” Id. Our legislature has continued to promulgate this mandate. The Probate Estates and Fiduciaries Code, (Act of June 30, 1972, No. 164), provides in at least four places that adopted children shall be treated the same as biological children. See, e.g., 20 Pa.Cons.Stat.Ann. Section 2108 (adopted person shall be considered the issue of his adopted parent or parents); Section 2507(4) (providing for child born or adopted after making of will); Section 2514(7) (adopted person shall be considered the child of his adopting parent or parents); and Section 6114(4) (Rules of interpretation — adopted person shall be considered the child of his adopting parent or parents) (Purdon Supp.1985).

This policy in unequivocally expressed in the wording of the Order and Decree made by the courts of this Commonwealth upon the adoption of a child. The adopted child is given “all the rights of a child and heir” of his adopting parents and is “subject to the duties of (a) child” to his parents. See 23 Pa.Cons.Stat.Ann. Section 2902 (Purdon Supp.1985). These rights and duties, given to all adopted children, were given to the children of Catherine Dom McCarrell. Thus, “(i)n Pennsylvania a valid adoption severs the child from its natural family tree and engrafts it upon that of its new parentage. Thereafter the child attains the status, in law, of a natural child of the adopting parents.” In re Schwab’s Adoption, 355 Pa. 534, 536, 50 A.2d 504, 505 (1947).

Adoption did not exist at common law, it is a creature of our legislature. In enacting a statutory scheme of adoption, however, our legislators “did not amend human nature; (they) yielded to it.” In re Estate of Coe, 42 N.J. 485, 490, 201 A.2d 571, 575 (1964). Adoption statutes did not create the social phenomenon of adoption, they gave legal recognition to familial relationships which society had “always assumed, and translated into a rule of law what the Legislature found to be (the people’s) common expectation and wish.” Id. at 489, 201 A.2d at 574, quoted in Tafel 449 Pa. at 450, 296 A.2d at 801. “The successive statutes, examined historically and analytically, portray a steady broadening of the relationship between adopting parent and adopted child.” Ottavi v. Timothy Burke Stripping Co., 140 Pa.Super. 389, 395, 14 A.2d 188, 191 (1940). Today, that relationship is so all encompassing that it has become merely the relationship between parent and child. In the eyes of the parent, the child, society, and the Commonwealth of Pennsylvania, adopting parent and adopted child are indiscernable from any other parent and child.

Appellants urge us to find that the terms “heirs of the body” and “children of the body” manifest an intention on the behalf of Anna Ogden to exclude adopted children from sharing as beneficiaries of the trust. These terms, however, are not conclusive of such a result. It is a question of first impression in this state whether these terms alone express an intent to limit the class of beneficiaries to blood relatives to the exclusion of adopted relatives. In this case we hold, with a growing number of jurisdictions, that they do not. Use of such terms “without further elaboration is not sufficiently explicit to exclude an adopted child from the benefits of (a) trust.” In re Trust Created by Agreement with Harrington, 311 Minn. 403, 410, 250 N.W.2d 163, 167 (1977).

Two recent decisions of our Supreme Court validate this holding, Estate of Riley, 498 Pa. 395, 446 A.2d 903 (1982) and Farmers Trust Co. v. Bashore, 498 Pa. 146, 445 A.2d 492 (1982). In Bashore the court held that a trust that provided, in the event all previous directions should fail, for conveyance of the corpus “to (the settlor’s) next of kin ‘of the blood of her father’ cannot reasonably be read as demonstrating an intention on the part of (the) settlor to convey the trust income or principal solely to blood relatives.” Bashore, 498 Pa. at 153, 445 A.2d at 496. The issue facing the court in Riley was whether the adopted children of one of the testator’s grandchildren were entitled to share in the principal of a testamentary trust. Riley 498 Pa. at 396, 446 A.2d at 904. The item setting up the trust referred to “grandchildren” and “issue.” Id. However, it was “argued that ... references to beneficiaries in other paragraphs of his will and codicil as ‘issue born ... of children of mine’ and ‘grandchildren ... born in my lifetime’ demonstrate(d) a clear intent to exclude adopted children from participation in the trust.” Id. The court disagreed, stating that such references could not “be read to indicate a clear intent to exclude adoptees as beneficiaries even within these paragraphs.” Id. If the phrases “of the blood” and “issue born” do not, alone, evince a clear intent to exclude adopted children, then neither do the phrases “children of the body” and “heirs of the body.”

The appropriateness of this ruling is manifest in the instant case. The scheme of distribution and other facts bearing on the question establish with reasonable certainty that it was not Anna Ogden’s intent to exclude adopted children from benefiting under the instruments she had made. See Estate of Sykes, 447 Pa. 254, 256, 383 A.2<j 920, 921-922 (1978) (seeking to ascertain intent with reasonable certainty, court examines words of instrument, scheme of distribution, circumstances surrounding execution, and other facts bearing on the question). Anna Ogden was no stranger to the establishment of familial relationships through adoption. At the time of her death she had a great grandnephew and a great grandniece by adoption. The nephew, Brian Ogden Lynch, was the son of named beneficiary, Isabelle Dom Lynch, prior to the making of either the will or trust. In fact, decedent made a gift of one thousand dollars to “BRIAN OGDEN LYNCH, the adopted son of (her) grandniece, ISABELLE LYNCH," in the fourth section of her will, the same provision which created the trust now under consideration. Reproduced Record at 39. The gift to her adopted great grandnephew is directly above the trust created in the will. In one paragraph of the instrument, Anna Ogden expressly refers to “the adopted son of (her) grandniece.” She is not shy about using the word adopted. Yet, appellants would have us believe that a scant two paragraphs later she sought to exclude Brian Ogden Lynch and any other persons who might be adopted by her grandnieces and grandnephews from sharing in the trust without any specific reference to them. Decedent knew and used the word “adopted” to identify a beneficiary in one part of her will. If she wanted to exclude adopted children from the class of children of named beneficiaries, why didn’t she use the word to make her wishes known? She was certainly capable of using it to identify persons whom she did not intend to benefit from the trust. She did not do so.

Instead of utilizing the word “adopted,” which is clear and unequivocal, the instruments refer to “children,” “survivors,” and “heirs of the body.” We cannot find that one of a number of phrases used interchangeably in an instrument creates an intent against all evidence and reason. “To hold otherwise would cast a cloud over this state’s policy toward adopted children and add to the reports another mindless case based on sham 'intent’ manifested in virtually meaningless common-law phrases.” Harrington 311 Minn. at 410, 250 N.W.2d at 167. See Tafel 449 Pa. at 151-52, 296 A.2d at 802. Rather than do this, we follow the adage that “in interpreting wills, the law will impute to the testator’s words such meaning as under all the circumstances will conform to his probable intention and be most agreeable to reason and justice.” Estate of McKenna, 340 Pa.Super. 105, 110, 489 A.2d 862, 865 (1985) (quoting In re Estate of Umberger, 369 Pa. 587, 592-593, 87 A.2d 290, 293 (1952)).

Accordingly, the order of the lower court is affirmed.

      . The orders and decrees in the adoptions of Malcolm W. McCarrell and Rachel McCarrell Cune were made by President Judge Anderson in the Orphan’s Court of Washington County, Pennsylvania. They read in part:
      ORDER AND DECREE
      that Clifford Charles Titus is from this date the adopted child of Ebenezer M. McCarrell and Catherine D. McCarrell and shall hereafter have all the rights of a child and heir of such adopting parents and be subject to the duties of such child and shall assume the name of such adopting parents and be hereafter known as Malcolm Wilson McCarrell.
      Reproduced record at 44a.
      ORDER AND DECREE
      that Baby Murphy is from this date the adopted child of Ebenezer M. McCarrell and Catherine D. McCarrell and shall hereafter have all the rights of a child and heir of such adopting parents and be subject to the duties of such child and shall assume the name of such adopting parents and be hereafter known as Rachel Dom McCarrell.
      Reproduced record at 45a.

      . "It is, of course, a cardinal rule that a will is to be construed according to the intent of the testator.” Hamilton Estate, 454 Pa. 495, 498, 312 A.2d 373, 374 (1973); accord, Blough Estate, 474 Pa. 177, 378 A.2d 276 (1977); Hill Estate, 432 Pa. 269, 247 A.2d 606 (1968), cited in Estate of Sykes, 477 Pa. 254, 256, 383 A.2d 920, 921 (1978). It is not unusual for the testator’s intent to be unclear and for a court to resort "to canons of construction to supply the testator’s likely intent.”
        Sykes, 477 Pa. at 256, 383 A.2d at 921. "Absent an express direction in the instrument, however, a real intention is seldom discoverable." In re Estate of Tafel, 449 Pa. 442, 451, 296 A.2d 797, 802 (quoting Fownes Trust, 421 Pa. 476, 482, 220 A.2d 8, 11 (1966) (Roberts, L, dissenting)). As far as it is discernible, a testator’s intent will be enforced, unless forbidden by public policy. United States v. 0.20 Acre of Land in New Alexandria Borough, Westmoreland County, 71 F.Supp. 576 (W.D.Pa. 1947). Our Supreme Court has stated that the testator’s intention is to be given full expression unless "it is unconstitutional, unlawful, or against public policy.” In re Estate of Janney, 498 Pa. 398, 401, 446 A.2d 1265, 1266 (1982).

      . See, e.g., In re Hamilton's Estate, 454 Pa. 495, 312 A.2d 373 (1973) (presumption that distribution follows intestacy laws absent expression of contrary intent); In re Farrington’s Estate, 422 Pa. 164, 220 A.2d 790 (1966) (presumption that child not disinherited except by plain language or necessary implication); In re Vandergrift’s Estate, 406 Pa. 14, 177 A.2d 432 (1962) (presumption that testator intended to dispose of entire estate and not die intestate as to any part of it, therefore, where possible will to be construed to avoid intestacy); In re Hirsh’s Estate, 334 Pa. 172, 5 A.2d 160 (1939) (presumption that settlor intended equality of distribution among beneficiaries).

      . For a discussion of the effect of adoption on the transfer of wealth by wills and trusts, see Rein, The Impact of Adoptions, Adult Adoptions, and Equitable Adoptions on Intestate Succession and Class Gifts, 37 Vand.L.Rev. 711 (1984).

      . This presumption conforms with statutory rules of will interpretation. See Estate of Sykes, 477 Pa. 254, 261, 383 A.2d 920, 923 (1978).
      Sec. 2514 Rules of interpretation
      In the absence of a contrary intent appearing therein, wills shall be construed as to real and personal estate in accordance with the following rules:
      (7) Adopted children. — In ... construing a will making a devise or bequest to a person ... described by relationship to the testator or to another, any adopted person shall be considered the child of his adopting parent ..., except that, in construing the will of a testator who is not the adopting parent, an adopted person shall not be considered the child of his adopting parent or parents unless the adoption occurred during the adopted person’s minority ...
      20 Pa.Cons.Stat.Ann. Sec. 2514 (Purdon 1975 & Supp.1985).

      . For a copy of the language contained in the adoption decrees of Malcolm W. McCarrell and Rachel McCarrell McCune, see note 1 supra.

      . The first general legislation relating to adoption in Pennsylvania was the Act of May 4, 1855, P.L. 430. Prior to this time, "adoption arose through special legislative action in individual instances.” In re Collins’ Estate, 393 Pa. 195, 201, 142 A.2d 178, 181 (1958). In 1855 and in all subsequent Adoption Acts, the adopted person was given "all the rights of a child and heir” of the adoptive parents. Act of May 4, 1855, Pub.L. 430, Sec. 7; Act of May 19, 1887, Pub.L. 125; Act of May 9, 1889, Pub.L. 168; Act of June 1, 1911, Pub.L. 539; Act of April 4, 1925, Pub.L. 127, Sec. 1; Act of June 30, 1947, Pub.L. 1180, Sec. 1; Act of August 26, 1953, Pub.L. 1411, Sec. 1; Act of July 24, 1970, Pub.L. 620, No. 208, Secs. 101-603; Act of October 15, 1980, Pub.L. 934, No. 163, Sec. 1. See 23 Pa.Cons.Stat.Ann. Sec. 2902 (Purdon Supp.1985). See also In re Estate of Tafel, 449 Pa. 442, 447 n. 5, 296 A.2d 797, 799 n. 5 (1972).

      . We cannot believe it probable that strangers to the adoption would differentiate between the natural child and the adopted child of another. Rather we believe it more likely that they accept the relationships established by the parent whether the bond be natural or by adoption and seek to advance those relationships precisely as that parent would. None of us discriminates among children of a relative or friend upon a biological basis. See In re Patrick’s Will, 259 Minn. 193, 106 N.W.2d 888, 890 (Sup.Ct.1960); In re Trusteeship Agreement with Nash, 265 Minn. 412, 122 N.W.2d 104, 109 (Sup.Ct. 1963). We ought not impute to others instincts contrary to our own.

        In re Estate of Tafel, 449 Pa. 442, 450-51, 296 A.2d 797, 801 (1972) (quoting In re Coe, 42 N.J. 485, 489, 201 A.2d 571, 574 (1964)).

      . Since our Supreme Court's decision in Tafel, the courts of this Commonwealth have construed similar language as failing to exclude adopted children from benefiting under a will or trust. See, e.g., Farmers Trust Co. v. Bashore, 498 Pa. 146, 445 A.2d 492 (1982) (conveyance to next of kin "of the blood of her father” cannot reasonably be read to convey only to blood relatives); In re Biddle’s Estate, 487 Pa. 616, 410 A.2d 782, cert. denied, DaCosta v. DaCosta, 449 U.S. 824, 101 S.Ct. 84, 66 L.Ed.2d 27 (1980) (children and issue); In re DeRoy’s Estate, 481 Pa. 403, 392 A.2d 1355 (1978) (children); Estate of Flinn, 479 Pa. 312, 388 A.2d 672 (1978) (children); Estate of Sykes, 477 Pa. 254, 383 A.2d 920 (1978) (issue); In re Tafel’s Estate, 449 Pa. 442, 296 A.2d 797 (1972) (children); In re Estate of Ketcham, 343 Pa.Super. 534, 495 A.2d 594 (1985) (issue); In re Riley’s Trust, 30 Pa.Fiduc. 51 (1980) (use of word "born” does not preclude adoptee of testator's grandchild from sharing as "issue”). Prior to Tafel, such terms were frequently used to create an intent to exclude such children. See, e.g., In re Benedum’s Estate, 427 Pa. 408, 235 A.2d 129 (1967) (children and issue); In re Holton's Estate, 399 Pa. 241, 159 A.2d 883 (1960) (children, descendants, and issue); In re Collin’s Estate, 393 Pa. 195, 142 A.2d 178 (1958) (descendants). See also In re Estate of Tower, 463 Pa. 63, 343 A.2d 671 (1975) (court decision that testator intended, by use of terms “children,” "grandchildren,” “issue,” and "lineal descendants,” to exclude adopted children from testamentary trust was res judicata, barring relitigation of claim despite subsequent decisions enlarging rights of adopted children).

      . Weilert v. Larson, 84 Ill.App.3d 151, 39 Ill.Dec. 520, 404 N.E.2d 1111 (1980) (phrase "issue of their body” does not show plain intent to exclude adopted child); In re Trusts Created by Agreement with Harrington, 311 Minn. 403, 250 N.W.2d 163 (1977) (phrase “issue of her body” does not evince intent to exclude adopted children). Cf. Wheeling Dollar Savings & Trust Co. v. Hanes, 160 W.Va. 711, 237 S.E.2d 499 (1977) (adopted children shall take under words "child” or "children” or any general words loosely, if not technically synonymous with such words, including but not limited to "natural children,” “descendants,” "heirs," "issue,” or any similar language). But, see, Reedy v. Propst, 288 S.E.2d 526 (W.Va.1982) (use of phrase "child or children born of her body” prevented grandson, adopted when he was 23 years old, from benefiting under will).
      Many jurisdictions have construed similar phrases in favor of adoptees

        See, e.g., In re Estate of Heard, 49 Cal.2d 514, 319 P.2d 637 (1957); Brown v. Trust Co., 230 Ga. 301, 196 S.E.2d 872 (1973) (gift of remainder under testamentary trust to testator’s “nephews and nieces” presumptively includes child adopted by one of testator’s sisters); Elliott v. Hiddleson, 303 N.W.2d 140 (Iowa 1981) (gift of remainder to children’s “lineal heirs” under testamentary trust presumptively includes child adopted by daughter after testator’s death); In re Thompson, 53 N.J. 276, 250 A.2d 393 (1969) (postponed testamentary gift to daughter’s "lawful issue’’ presumptively includes child adopted by daughter after testator’s death); In re Estate of Coe, 42 N.J. 485, 201 A.2d 571 (1964) (bequest to "lawful children” of Theodora presumptively children adopted by Theodora after testatrix’ death); Estate of Tafel, 449 Pa. 442, 296 A.2d 797 (1972) (gift of remainder to child’s “children” under testamentary trust presumptively includes children adopted by son after testator’s death); Vaughn v. Gunter, 458 S.W.2d 523 (Tex.Civ.App.), aff'd, 461 S.W.2d 599 (1970) (gift of remainder to son’s "children” under inter vivos trust presumptively includes child adopted by son after settlor’s death); Wheeling Dollar Sav. & Trust Co. v. Hanes, 160 W.Va. 711, 237 S.E.2d 499 (1977) (gift of remainder to life beneficiary’s "children” under irrevocable inter vivos trust presumptively includes children adopted by life beneficiary after settlor’s death); see also McCaleb v. Brown, 344 So.2d 485 (Ala.1977); Wallin v. Torson, 88 Mich.App. 775, 279 N.W.2d 310 (1979); In re Estate of Park, 15 N.Y.2d 413, 260 N.Y.2d 169, 207 N.E.2d 859 (1965).
      Rein, The Impact of Adoptions, Adult Adoptions, and Equitable Adoptions on Intestate Succession and Class Gifts, 37 Vand.L.Rev. 711, 734 n. 97 (1984).

      . “It is, of course, a cardinal rule that a will is to be construed according to the intent of the testator____ To ascertain this intent, a court examines the words of the instrument and, if necessary, the scheme of distribution, the circumstances surrounding the execution of the will and other facts bearing on the question.” Sykes Estate, 477 Pa. 254, 257, 383 A.2d 920, 921 (1978). Accord, e.g., Hamilton Estate, 454 Pa. 495, 312 A.2d 373 (1973). Only if the intent does not appear with reasonable certainty will a court resort to canons of construction. Houston Estate, 491 Pa. 339, 421 A.2d 166 (1980). Accord, McDowell National Bank v. Applegate, 479 Pa. 300, 388 A.2d 666 (1978); Sykes Estate, supra.

        Estate of Flagg, 501 Pa. 38, 44, 459 A.2d 740, 743 (1983). "This well-settled principle applies equally to trusts.” Estate of Reynolds, 494 Pa. 616, 627, 432 A.2d 158, 163 (1981) (citing Pew Trust, 411 Pa. 96, 191 A.2d 399 (1963); Walton Estate, 409 Pa. 225, 186 A.2d 32 (1962)).

      . In my view, there is no sound basis for concluding that the settlor, by employing (the terms "issue” and "children”) intended to exclude adopted children from sharing in his bounty. It is far more likely, and more reasonable to assume, that the absence of an express direction with respect to the matter indicates that the settlor failed to advert to the possibility of adopted children, their inclusion or exclusion, and, accordingly, expressed no explicit direction one way or the other. Had he adverted to the question, and determined not to include adopted children as beneficiaries of the trust estate, it is reasonable to assume that he would not have restricted himself to the cryptic designations (used), but would have employed language which would have left no doubt as to his intent.

        In re Estate of Tafel, 449 Pa. 442, 451, 296 A.2d 797, 802 (citing Fownes Trust, 421 Pa. 476, 482-84, 220 A.2d 8, 11-12 (1966) (Roberts, J„ dissenting).