author: ROWLEY, President Judge:

text:
    631 A.2d 621
    REILLY ASSOCIATES v. DURYEA BOROUGH SEWER AUTHORITY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 24, 1993.
    Filed Aug. 12, 1993.
    Reargument Denied Oct. 15, 1993.

      Barry J. Chromey, Old Forge, for appellant.
    Eileen A. Reilly, West Pittston, for appellee.
    Before ROWLEY, President Judge, and CIRILLO and BROSKY, JJ.
   ROWLEY, President Judge:

This appeal arises out of an action brought by plaintiff/appellee Reilly Associates (“Reilly”) against defendant/appellant Duryea Borough Sewer Authority (“the Authority”) to recover for the latter’s alleged nonpayment for services rendered. The Authority’s failure to file an answer to Reilly’s complaint resulted in the entry of a default judgment against the Authority. In an order entered November 19, 1992, the trial court denied the Authority’s petition to strike the default judgment. The sole issue raised by the Authority in this timely appeal of that order is whether the trial court erred in doing so. Having carefully considered the arguments of the parties in light of the relevant case law and the evidence of record, we affirm the order of November 19, 1992.

The requirements for obtaining a default judgment are set forth in Pa.R.C.P. 237.1(a):

No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.

Pa.R.C.P. 237.1(a) (emphasis added). The Authority asserts that Reilly failed in several respects to comply with the notice provisions set forth in the first sentence of this paragraph. Reilly maintains, however, that because a letter from the Authority’s solicitor constituted a written agreement for an extension of time, compliance with the notice provisions was unnecessary.

We will not disturb the trial court’s ruling in this matter absent a manifest abuse of discretion or an error of law. Marzullo v. Stop-N-Go Food Stores of Pittsburgh, Inc., 364 Pa.Super. 106, 110, 527 A.2d 550, 551, alloc. denied, 517 Pa. 599, 535 A.2d 1058 (1987). The trial court indicated its agreement with Reilly’s position by citing Johnson v. Southeastern Pennsylvania Transportation Authority, 524 Pa. 209, 570 A.2d 71 (1990), and Miller Block Company v. United States National Bank in Johnstown, 389 Pa.Super. 461, 567 A.2d 695 (1989), alloc. denied, 525 Pa. 658, 582 A.2d 324 (1990), discussed below, as the basis for denying the Authority’s petition to strike the judgment.

In Miller Block v. U.S. National Bank, the appellant Bank argued that even if there existed a written agreement for extension of time, it was still essential for the party seeking a default judgment to comply with the notice provisions of Rule 237.1(a). This Court held, however, that “[t]he express purpose of the written extension exception to the Rule 237.1 notice is to obviate the need for the written notice of intent to take a default judgment.” Id. at 468, 567 A.2d at 699. In light of that holding, we consider whether a written extension agreement exists in the present case.

Reilly contends that the following letter of February 6, 1991, from the Authority’s counsel to Reilly’s counsel is such an agreement:

I am in receipt of a copy of the complaint filed in the above-captioned matter on behalf of the Plaintiff.
The purpose of this letter is to request an extension of thirty (30) days for the filing of an Answer on behalf of the Defendant, until March 8, 1991. If you have an objection to this arrangement, please advise me immediately. I will infer from silence that you consent to this arrangement.

Reilly did not respond to the Authority’s letter. The Authority did not file an answer on or before March 8, 1991. On March 20, 1991, still lacking an answer, counsel for Reilly praeciped for entry of a default judgment.

The Explanatory Note to Rule 237.1 advises that “[a] written agreement of extension need not be formal. An exchange of letters between counsel will suffice. But any agreement should be sufficiently specific to avoid argument over its terms.” In Johnson v. SEPTA, supra, our Supreme Court specified the necessary elements of a written extension agreement:

The requirements, basically, are the same as for any writing which purports to be a contract: the parties must be known; the terms (here the time period involved) must be definite; and the writing must, when plainly construed, indicate an agreement or meeting of the minds on the terms. In addition, an agreement written in the context of statutory or regulatory application must be read in the context of the statute or rule. Finally, although the agreement need not be formal, as the comment indicates, it does require at least “an exchange of letters.”

Id., 524 Pa. at 214-15, 570 A.2d at 73-74 (footnotes omitted).

In the letter of February 6,1991, the parties are known and the crucial term (i.e., the time period) is definite. Whether there was a meeting of the minds depends, we think, on the significance of the “missing” letter: the Authority’s intent is plain from its letter, but there is no response from Reilly. The requirement of “an exchange of letters” is noted by the Supreme Court not only in the passage quoted above, but also in the following discussion:

[A]bsent an “exchange of letters ” manifesting a meeting of the minds, and absent an unambiguous statement of a definite time period for the extension, a separate ten day notice in a form substantially the same as that set out in Rule 287.1 would be required before a default judgment was permitted under the rule.

Id. at 217, 570 A.2d at 74-75 (emphasis in original). The issue before the Court, however, was not whether a single letter can ever indicate a written agreement for an extension, but whether the two letters involved in the case — one party requesting an open-ended extension, the other replying by granting a thirty-day extension — manifested such an agreement. The Court concluded that they did not.

The issue to be decided here, in contrast, is whether a single letter from defendant’s counsel to plaintiffs counsel, requesting a specific extension of time within which to file an answer and expressly stating that silence would be construed as consent to the proposal, constitutes a written agreement for extension. We conclude that this issue has yet to be decided, as it was not the issue before the Court in Johnson v. SEPTA and we have found no case directly on point.

We learn from Johnson v. SEPTA that in determining whether a writing constitutes a written agreement for extension of time, “we must apply basic principles of contract law as they relate to the formation of agreements.” Id. at 215 n. 3, 570 A.2d at 73 n. 3. It is settled law that a written agreement is construed against its drafter. Central Transportation, Inc. v. Board of Assessment Appeals of Cambria County, 490 Pa. 486, 496, 417 A.2d 144, 149 (1980). Thus, where defense counsel requested a thirty-day extension of time within which to answer a complaint, but later sought to explain his failure to file an answer by saying, inter alia, that he had mistakenly thought the extension granted by plaintiffs counsel was open-ended because it was his usual practice to request that type of extension, this Court held that his “misapprehension as to the length of the extension cannot be considered reasonable where he himself sought the extension and specified its length.” Horan v. R.S. Cook & Associates, Inc., 287 Pa.Super. 265, 268, 430 A.2d 278, 279 (1981).

In the present case, counsel for the Authority specifically disclaimed any need for a response from Reilly’s counsel if the latter had no objection to the requested extension. Therefore, counsel for the Authority will not now be heard to complain that “there was no exchange of letters.... There was no written confirmation. There was no oral communication acknowledging the proposed extension” (Brief for Appellant at 4). What counsel for the Authority did receive from counsel for Reilly was, as invited, inaction: under Pa.R.C.P. 1026(a), the Authority’s answer to Reilly’s complaint should have been filed on February 4, 1991, yet Reilly took no step toward obtaining a default judgment until March 20, 1991, almost two weeks after the Authority’s self-imposed deadline of March 8, 1991. If counsel for the Authority had wished to obtain the certainty inherent in a more explicit response, he had only to request such a response or eliminate the last sentence from his letter. Counsel for the Authority cannot establish the rules of the game and then complain because counsel for Reilly agreed to play by those rules.

We note also that, following Johnson v. SEPTA, the writing in question must be read in the context of the applicable rule. The letter of February 6, 1991, requested an extension until March 8, 1991. The consequence of failing to file an answer by that date is ascertainable from the language of Rule 237.1(a): a default judgment may be taken. Although the Authority argues to the contrary,

[by] operation of the rule, once an extension is agreed upon in writing by terms that are definite, and the party requesting the extension does not act within the time agreed upon, a default may be taken without further discussion or warning.

Id., 524 Pa. at 217, 570 A.2d at 74 (emphasis added).

Finally, while we do not dispute the Authority’s assertion that “snap judgments” entered without notice are disfavored, we do not perceive any such action to have been taken in this case. As noted earlier, Reilly waited twelve (12) days beyond the deadline chosen by the Authority before seeking a default judgment. This is not a case in which the Authority was taken by surprise; rather, it is a case in which the Authority had ample time, even more than it had requested, within which to file an answer and avoid the entry of a default judgment.

For the reasons set forth above, we perceive neither a manifest abuse of discretion nor an error of law in the trial court’s order of November 19, 1992, denying the Authority’s petition to strike the default judgment entered against it. Accordingly, we affirm the court’s order.

Order affirmed.

      . Pa.RX.P. 1026(a) states in pertinent part that "every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading....” Reilly’s complaint was served on January IS, 1991.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    631 A.2d 625
    COMMONWEALTH of Pennsylvania, Appellee, v. Christopher John AUSTIN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 10, 1993.
    Filed Sept. 13, 1993.

      Charles A. Banta, Easton, for appellant.
    Tamara Greenfield, Asst. Dist. Atty., Easton, for Com., appellee.
    Before OLSZEWSKI, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Northhampton County entered after appellant was convicted of possession of cocaine and possession with intent to deliver cocaine. We affirm.

On March 15, 1991, Christopher John Austin and Courtney Brown were driving on Route 33 in Northhampton County. At approximately 1:15 A.M., Austin, the appellant, pulled off to the side of the road so that Brown could take his shift as driver. Austin turned on the car’s emergency flashers as he exited the automobile and proceeded to move toward the passenger side of the vehicle. At this time, a Pennsylvania State police car pulled up behind Brown and Austin to see if the two men needed assistance. As the police officers approached the vehicle, Austin sat down in the passenger seat of the vehicle while Brown moved to the driver’s position. When approached by the police officer, Austin told Trooper Rivera that he and Brown were changing drivers and that there was no problem. Austin also informed the trooper that the two men were on their way to Virginia. At the same time, Trooper Pardoe asked Brown where the two men were going and Brown answered that the two were going to Pennsylvania. The troopers then noticed that there was only a small gym bag in the car. The troopers found the lack of luggage to be inconsistent with Austin’s statement that he and Brown had been traveling for several days. At this point, Trooper Rivera asked Brown if he could look in the trunk of the car. Brown opened the trunk, and the trooper found no additional luggage. While Trooper Pardoe was looking in the trunk, Trooper Rivera was talking to Austin, who remained in the passenger seat of the vehicle. As the trooper was speaking with Austin, she noticed that he was suspiciously fidgeting and fumbling with a plastic bag that was located on the floor of the car in front of him. The officer later testified that this action made her nervous. When the officer asked about the contents of the bag, Austin told her that it was dirty underwear, and that the contents of the bag were “real nasty.” Trooper Pardoe then became concerned that the bag might contain a weapon. The officer asked appellant to exit the car so that she could do a protective search of the vehicle. The officer picked up the bag, and, upon inspection, she found that the bag contained a substance that looked like vanilla fudge. It was later determined that the substance was cocaine.

Appellant and Brown were taken to the police barracks where they were arrested and charged with unlawful possession of a controlled substance and possession of a controlled substance with intent to deliver. On November 7, 1991, a Northhampton County jury returned a guilty verdict against both Austin and Brown. Post trial motions were denied, and this appeal followed.

The first issue appellant raised on appeal was that the lower court erred when it refused to suppress the controlled substance seized at the time of arrest. When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985) (citations omitted).

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the U.S. Supreme Court held that law enforcement officials could stop and conduct a pat down search for weapons of a person suspected of criminal activity. In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Supreme Court extended the Terry search to automobiles. Id. at 1035, 103 S.Ct. at 3473. The standard the Court established in Long was that an officer has the right to conduct a weapons search of an automobile if there is a reasonable belief that the suspect is dangerous and that the suspect might gain immediate control of weapons. Id. at 1051, 103 S.Ct. at 3482. Specifically, the Supreme Court stated:

The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, if taken together with the rational inferences from those facts reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

Id. In Long, the Court also held that contraband found during the protective search could not be ignored and did not warrant suppression under the Fourth Amendment’s protection against unreasonable searches and seizures. Id. at 1053, 103 S.Ct. at 3483.

Pennsylvania cases hold that it is the reasonableness of a police officer’s actions that determine the constitutionality of a search and seizure. Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969); Commonwealth v. Rehmeyer, 349 Pa.Super. 176, 502 A.2d 1332 (1985), appeal denied, 516 Pa. 613, 531 A.2d 780 (1987); In the Interest of William Dixon, 356 Pa.Super. 105, 514 A.2d 165 (1986). In Rehmeyer, this court recognized that the reasonableness of a search depends on the balance between the public interest and an individual’s right to be free from arbitrary interferences by law enforcement officers. Rehmeyer, 502 A.2d at 1335, citing, United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). In testing the reasonableness of a search, we must balance the safety of the police officer against appellant’s right to be free from arbitrary searches. Rehmeyer, 502 A.2d at 1336; see also Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985) (finding search legal when based on facts that hour was late, weather was snowy, streets were empty, dogs were barking, and appellant did not produce identification).

In the instant case, the troopers articulated numerous facts, which, if taken together, could have reasonably led them to believe that the suspects were dangerous and that the suspects might gain immediate control of weapons. First, the police officers testified that their contact with appellant occurred late at night. N.T., November 4, 1991, p. 59. It is well-settled that an encounter that occurs late at night is inherently more dangerous than one that occurs during the day, particularly when the suspects appear shaky and inordinately nervous, as in this case. Id. at 1050.

When the officers approached the suspects in this case, they asked each man about his destination. The officers heard hesitant and inconsistent answers from the two men. Next, the officers noted that there was only one gym bag in the car despite the defendants’ admissions that they had been traveling for several days. The lack of luggage raised the officers’ suspicions that the two men might be engaged in illegal activities. Significantly, the officers noted that the vehicle driven by the defendants was registered to someone other than the defendants. There was no evidence of any connection between either of the defendants and the registered owner. Finally, when appellant was being questioned by Officer Pardoe, he was continually touching and turning the bag that was between his legs.

Appellant points out that when viewed individually there may be an innocent explanation for the facts listed above. However, we are not to examine each fact standing alone. Only when the facts are examined in totality can we judge whether the troopers acted reasonably. Long, 463 U.S. at 1051, 103 S.Ct. at 3482. In the instant case, it was reasonable for the officers to have believed that the suspects were dangerous and that a protective search of the automobile was necessary in order to ensure their own safety. The officers’ actions were not based on a simple hunch, but on several specific articulated facts that led them to believe that the defendants were dangerous and might gain immediate control of weapons. The time of the encounter, the inconsistent answers given by appellant and Brown, the vehicle registration, the lack of luggage, and appellant’s suspicious behavior in regard to the bag are all factors that lead us to conclude that the search was reasonable and was necessary to protect the police officers. Thus, we hold that the lower court had sufficient legal and factual basis on which to base its decision not to suppress the evidence.

We note that the facts of this case are somewhat similar to the facts of Commonwealth v. Fountain, 423 Pa.Super. 296, 621 A.2d 124 (1992). In Fountain, this court affirmed the suppression of a gun found during a protective search of an automobile. The search in Fountain occurred after the suspects had been pulled over for a minor traffic infraction. The search occurred late at night, and the occupants were unable to produce a registration card for the vehicle. Additionally, the investigating officer observed a great deal of movement between the occupants of the vehicle. The Fountain court held that under these facts the officer could not have a reasonable belief that the driver or any of the occupants were dangerous and that they could gain immediate control of weapons. Id. 621 A.2d at 127. We find that the present case can be distinguished from Fountain. In the present case, the suspects gave inconsistent answers to the police officers when questioned, and the officers noticed a suspicious lack of luggage. Most significant in the present case, however, is that the officer saw appellant touching and playing with the bag on the floor. The officer in Fountain did not point to any one specific movement that could reasonably lead one to believe that weapons were located in the vehicle. Additionally, we note that in Long the U.S. Supreme Court specifically ruled that a protective search was legal even when the suspects are detained outside the vehicle. Long at 1051-1052.

Appellant’s second argument was that the Commonwealth failed to establish constructive possession of the controlled substance. In ruling on whether appellant’s demurrer was properly denied, the test we are to apply is whether, accepting as true all the Commonwealth’s evidence and all the reasonable inferences therefrom, it was sufficient to support a finding by the jury that appellant was guilty beyond a reasonable doubt. Commonwealth v. Turner, 491 Pa. 620, 421 A.2d 1057 (1980).

Constructive possession has been defined by our Supreme Court as the power to control contraband and the intent to exercise control over the contraband. Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983). Our Supreme Court has also held that constructive possession may be proved through circumstantial evidence and that the totality of the circumstances can be examined to determine if constructive possession exists. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974).

Appellant relies on this court’s opinion in Commonwealth v. Juliano, 340 Pa.Super. 501, 490 A.2d 891 (1985), to support its position. In Juliano, the only evidence the Commonwealth presented was that a satchel seized from a car was found at the appellant’s feet. In reversing the judgment of sentence, this court specifically noted that there was no evidence, such as a furtive movement, from which it could be inferred that appellant knew of the contents of the satchel. Id. 510 Pa. at 506, 490 A.2d at 894.

In the present case, the Commonwealth presented evidence that the bag was found at the feet of appellant and that appellant was touching the bag. Because of appellant’s continuous touching of the bag, we find this case distinguishable from Juliano. This case is more similar to Commonwealth v. Cruz Ortega, 372 Pa.Super 389, 539 A.2d 849 (1988). In Cruz Ortega, this court stated that “[t]he cocaine was found under the seat in which appellant was sitting. Before police stopped the vehicle, appellant was observed leaning over in his seat. We conclude that this evidence is sufficient to establish access to and control of the contraband.” Id. 372 Pa.Super. at 393 n. 1, 539 A.2d at 851 n. 1. In the present case, the officer actually saw appellant touch the bag in which the cocaine was discovered. Additionally, the lower court found that appellant lied about the contents of the bag when he claimed that the bag contained dirty underwear in an effort to keep the officer from looking in the bag. Taking into account the totality of the circumstances, the Commonwealth’s evidence was sufficient to support a finding by the jury that appellant was guilty of possession beyond a reasonable doubt. Accordingly, the court properly denied the demurrer.

Appellant also argued that the court erred in refusing to grant appellant’s directed verdict motion on the issue of constructive possession. When reviewing a denial of a motion for a directed verdict we can only reverse if the prosecution’s evidence, and all inferences arising therefrom, considered in the light most favorable to the prosecution is insufficient to prove beyond a reasonable doubt that the accused is guilty of the crimes charged. Commonwealth v. Potts, 314 Pa.Super. 256, 460 A.2d 1127 (1983). Based upon the same evidence noted above, the court properly denied the directed verdict motion since the evidence, considered in the light most favorable to the prosecution, was sufficient to prove beyond a reasonable doubt that the accused was guilty of possessing or intending to possess a controlled substance.

Next, appellant asserted that the court erred in denying appellant’s motion to sever. The motion was made at the start of the second day of trial. Technically, we find that the right to raise a motion to sever was waived because it was not raised in an omnibus pretrial motion. Pa.R.Crim.P. No. 306. However, because the trial court addressed the issue on its merits, we will examine appellant’s argument. Commonwealth v. Sheaff, 365 Pa.Super. 613, 530 A.2d 480 (1987), appeal granted, 518 Pa. 655, 544 A.2d 1342 (1988); Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988), appeal denied, 522 Pa. 583, 559 A.2d 526 (1989).

The decision of the trial court not to sever will not be disturbed absent an abuse of discretion by the court. Commonwealth v. Dumas, 299 Pa.Super. 335, 445 A.2d 782 (1982). The critical factor is whether the moving party is prejudiced as a result of the trial court’s decision. Commonwealth v. Iacino, 490 Pa. 119, 415 A.2d 61 (1980); Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980).

The motion to sever arose during trial as a result of a comment made by Officer Pardoe when Pardoe was being questioned by Brown’s counsel. Brown’s counsel was attempting to establish that his client was not responsible for the drugs found in the automobile. Trooper Pardoe was questioned as follows: “Did [Brown] also tell you anything about the yellow bag at the time he was picked up by Mr. Austin?” N.T., November 4, 1991, p. 86. Trooper Pardoe answered: “He told me it was in there when he got in the car.” Id. At the start of trial the next day, appellant’s counsel asked for a severance of the trial and a mistrial because counsel believed the statement was inculpatory against appellant. Both motions were denied.

Co-defendant Brown’s statement to the officer was an antagonistic statement to appellant’s case; however, our Supreme Court has held that more than a bare assertion of antagonism is necessary before severance is required. Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991); Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985). In Chester, our Supreme Court held that the mere fact that one defendant may try to save himself at the expense of another is not sufficient grounds to order separate trials. Id. 587 A.2d at 1373. Instantly, defendant Brown was trying to save himself with his statement that the yellow bag was in the car when he joined appellant. This statement was not sufficiently prejudicial to warrant separate trials, and, therefore, we find that the trial court did not abuse its discretion.

At the same point in the proceedings, the trial court correctly denied appellant’s motion for a mistrial. Since the admission of the statement and the joinder of the parties at trial was correct, appellant’s argument for a mistrial was meritless.

We now address appellant’s various claims that the court unfairly allowed the Commonwealth to make certain remarks during closing arguments and that the court showed bias against appellant in a portion of its charge and in certain rulings throughout the trial. First, appellant argues that the judge was biased because he did not grant appellant’s demurrer on the issue of constructive possession. As we have already noted, the trial judge correctly viewed the evidence in the light most favorable to the Commonwealth and came to a decision. There is no evidence, in this instance, of any bias on the part of the trial judge simply because the judge ruled against appellant.

Next, appellant asserts that the judge showed prejudice because he allowed certain comments by the prosecutor during closing arguments. Specifically, the defense objected to the prosecutor’s comment that: “a mule doesn’t get paid until he delivers the goods.” N.T., November, 7, 1991, p. 223. The Commonwealth’s “mule” statement was in response to the defense’s argument that since no large sums of money were found in the car, the defendants could not be drug dealers. Clearly, the prosecutor can counter the arguments of defense counsel in closing argument. Additionally, the prosecutor’s statements were reasonable inferences supported by the record, and this court has held that a prosecutor is free to argue reasonable inferences that are supported by the record. Commonwealth v. Kelly, 319 Pa.Super. 204, 465 A.2d 1301 (1983). Thus, the “mule” statement was properly admitted by the trial judge.

Appellant argued that the trial judge was biased in his charge to the jury. When reviewing jury instructions, we must consider the charge as a whole and not simply isolated excerpts. Further, we must consider the general effect of the charge to determine whether reversible error has been committed by a trial court. Commonwealth v. Myers, 376 Pa.Super. 41, 50-52, 545 A.2d 309, 314 (1986), appeal denied, 522 Pa. 588, 561 A.2d 741 (1989). “A jury instruction will be upheld so long as it ‘sufficiently and accurately apprises a lay jury of the law it must consider in rendering its decision.’ ” Commonwealth v. Calderini, 416 Pa.Super. 258, 611 A.2d 206, 210 (1992), appeal denied, 533 Pa. 656, 625 A.2d 1190 (1993), quoting Commonwealth v. Prosdocimo, 525 Pa. 147, 154, 578 A.2d 1273, 1276 (1990).

Defendant contends that the trial judge exhibited bias toward the defendants by referring to the Commonwealth as “we” and the defendants as “they” in his charge to the jury. First, it should be noted that on each occasion the trial judge used “we” to refer to the Commonwealth, he stated that he was summarizing the Commonwealth’s contentions. More importantly, the judge gave a similar instruction when he discussed the defendants’ contentions. On several occasions he used “we” to discuss the defendants’ claims. (N.T., November 7, 1991, pp. 244-245) WHien the judge’s instructions are taken as a whole it is clear that the general effect of the charge was fair to both the Commonwealth and appellant.

Finally, appellant asserted that his rights were violated by the refusal of the court to grant his release on nominal bail. We decline to address this issue because the issue was waived by appellant and not ruled on by the court below. Pa.R.A.P. No. 1925(b); Commonwealth v. Phillips, 411 Pa.Super. 329, 601 A.2d 816 (1992), appeal granted, 530 Pa. 665, 610 A.2d 45 (1992).

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(16).

      . 35 P.S. § 780-113(a)(30).


author: KELLY, Judge:

text:
    631 A.2d 631
    MORGAN GUARANTY TRUST COMPANY OF NEW YORK, Appellee, v. Theodore F. STAATS and Adele DeBartolo Staats, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1993.
    Filed Sept. 16, 1993.

      Richard A. Ferris, Pittsburgh, for appellants.
    Kenneth A. Eisner, Pittsburgh, for appellee.
    Before KELLY, JOHNSON and HESTER, JJ.
   KELLY, Judge:

In this appeal we are asked to determine whether the trial court properly denied appellants a Rule upon a judgment creditor to show cause why execution of a transferred judgment should not be stayed or to set aside the execution where appellants, the Staats, averred that the judgment to be executed against them had been satisfied in whole or in part. We hold that appellants have failed to merit a stay of execution or a set-aside of the execution on the transferred judgment and affirm.

The relevant facts and procedural history underlying this appeal are as follows. On November 25, 1985, appellants, Theodore F. Staats and Adele DeBartolo Staats, executed a .negotiable promissory note (Staats Note) to Bell Tower Associates, Ltd. (Bell), a Texas limited partnership, in the amount of one hundred ninety-two thousand dollars ($192,000.00). Bell was in the process of acquiring the Bell Tower Apartment Home complex in Irving, Texas. The apartment complex contained three hundred thirty-four (334) residential units; a total of thirty (30) units were to be sold. The Staats Note executed to Bell secured one (1) unit as an investment. Appellants agreed to pay their note in six equal installments of thirty-two thousand dollars ($32,000.00), plus interest on the unpaid balance, payments to commence May 15, 1986. As part of their investor arrangement as a limited partner, the appellants also executed an “Estoppel Letter and Assumption Agreement” through which they personally assumed the liability on their Note, unconditionally, limited only by the amount of their Note plus reasonable costs incurred in enforcing their obligation.

On June 10, 1986, Bell entered a financial relationship with Morgan Guaranty Trust Company of New York (Morgan). Bell executed a secured term note (Secured Term Note) with Morgan in the amount of three million seven hundred thousand dollars ($3,700,000.00). As inducement for the loan, and as collateral securing payment on its Secured Term Note, Bell irrevocably and unconditionally assigned and delivered the Staats Note to Morgan. As well, Bell delivered to Morgan appellants’ estoppel letter and assumption agreement.

Appellants duly remitted the 1986 and 1987 payments on the Staats Note but allegedly failed to make their May 15, 1988, 1989, 1990, 1991 principal and interest payments. Pursuant to paragraph (1-a) of the negotiable promissory note executed by appellants to Bell, the Staats Note, this failure to make payments when due constituted an “event of default.” Under the terms of the Staats Note, the default for nonpayment triggered the acceleration of the entire unpaid principal sum, together with accrued interest, to be calculated at three percent per annum over the “prime rate” from the date payment was due until payment was received in full, plus reasonable attorney’s fees and costs associated with the collection process. Morgan demanded payment from appellants but the default continued uncured.

In September, 1991, Morgan sued appellants for the amount of one hundred twenty-eight thousand dollars ($128,000.00), the remaining principal sum due on the Staats Note, together with accrued interest, plus costs and fees associated with collection. This action commenced in the federal district court for the Southern District of New York, as agreed to by appellants in the Staats Note, paragraph (8). Appellants entered an appearance through counsel but chose not to submit any opposition to Morgan’s motion for summary judgment, for the stated reason that appellants lacked the resources to continue an active defense of the case. Accordingly, the court granted the summary judgment on default. Morgan’s judgment against appellants includes:

$128,000.00 principal sum due
55,855.93 interest accrued from 5/16/88 to
3/9/92
604.50 attorney’s fees
+ 140.00 costs associated with action.
$184,600.43 total

Following entry of the transferred judgment and the writs of execution directing the sale of their business and residential properties in Allegheny County, Pennsylvania, appellants petitioned the Court of Common Pleas for a Rule on Morgan to show cause why the execution proceedings should not be stayed or to set aside the execution. The trial court denied appellants’ motion. This timely appeal followed.

The Uniform Enforcement of Foreign Judgments Act provides, in relevant part, that the clerk of the Court of Common Pleas shall treat any foreign judgment in the same manner as a judgment arising from any court of Common Pleas of this Commonwealth. 42 Pa.C.S.A. § 4306(b). This statute defines “foreign judgment” as “any judgment, decree or order of a court of the United States or of any other court requiring the payment of money which is entitled to full faith and credit....” 42 Pa.C.S.A. § 4306(f).

Where a foreign court has jurisdiction over the subject matter and the parties in a dispute, a judgment of that court is entitled to the same full faith and credit, validity, and effect in Pennsylvania, Dooley v. Rubin, 422 Pa.Super. 57, 618 A.2d 1014 (1993); United Carolina Bank v. Martocci, 416 Pa.Super. 16, 610 A.2d 484 (1992), unless that judgment has been obtained in derogation of the debtor’s due process rights to appear and defend. Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 487 A.2d 1372 (1985), certiorari denied, 475 U.S. 1109, 106 S.Ct. 1517, 89 L.Ed.2d 915 (1986).

Instantly, the federal district court for the Southern District of New York entered a judgment in default against appellants, who appeared through counsel but specifically chose not to oppose Morgan’s motion for summary judgment. The New York judgment was valid, unopposed, and enforceable under the laws of New York. Thus, the judgment was transferrable to Allegheny County, Pennsylvania where the Common Pleas Court was bound to give full faith and credit to the award.

Appellants assert, however, that the Pennsylvania trial court abused its discretion in denying the appellants’ petition for a rule to show cause why execution of the transferred judgment should not be stayed or set aside where that court refused to inquire into the foreign judgment notwithstanding appellants’ allegations that the judgment had been satisfied in whole or in part. We disagree.

In general, a court will not disrupt the rights of creditors to collect valued judgments by any legal means. Augustine v. Augustine, 291 Pa. 15, 139 A. 585 (1927). Pennsylvania law has long recognized the inherent power of a court to stay an execution proceeding where necessary to protect the rights of the parties. Kronz v. Kronz, 393 Pa.Super. 227, 233, 574 A.2d 91, 94 (1990); Pa.R.Civ.P. 3121. A court does not exercise this power capriciously; unless the facts warrant an exercise of that judicial discretion, a court should not stay an execution. Id. In order to merit a stay of execution, the law and equities in the case of the party seeking relief must be plain and free from doubt or difficulty. Pennsylvania Co. for Ins., etc. v. Scott, 329 Pa. 534, 198 A. 115 (1938) (quoting Patterson v. Patterson, 27 Pa. 40 (1856)).

After a careful review of the circumstances surrounding the execution of appellants’ joint obligation, as embodied in the Staats Note, estoppel letter and assumption agreement, we are convinced that appellants have not averred sufficient facts to shift the equities of this case in their favor. For the following reasons, we agree that the Allegheny County Court of Common Pleas properly denied appellants relief.

A close review of the documents signed by appellants reveals that they expressly agreed to the assignment of the Staats Note by the payee, Bell Tower Associates, Ltd. See Negotiable Promissory Note (Staats Note) at 3, paragraph (6). Additionally, paragraph (12) of the estoppel letter and assumption agreement expressly obligated appellants

... without any right of setoff, deduction, or defense which the Limited Partner may have against the Partnership or the Bank, and without abatement, suspension, deferment, diminution or reduction and the obligation of the Limited Partner hereunder shall in no way be released, discharged, or otherwise affected by reason of (a) any change, waiver, extension, indulgence, or other action or omission by the Bank in respect of any obligation or liability of the Limited Partner of the Partnership, (b) any bankruptcy insolvency, reorganization, composition, adjustment, dissolution, or [sic] any other limited partner of the Partnership or any any [sic] action taken with respect to this Agreement by any trustee or receiver of the Partnership, (c) any claim which the Limited Partner has or might have against the Partnership, or (d) any failure on the part of the General Partner to perform in accordance with the terms of the Limited Partnership Agreement of the Partnership whether or not the Limited Partner shall have notice or knowledge of any of the foregoing.

In the document entitled “Statements of Limited Partner,” Schedule A attached to the estoppel letter and assumption agreement, which was fully incorporated by reference therein, paragraph (13), appellants affirmed that they had ample opportunity to review the documents with personal counsel and were satisfied that they had a complete understanding of the agreement. As a final endorsement in Schedule A, appellants affirmed that the estoppel letter and assumption agreement constituted “valid, legal and binding obligations, enforceable according to their terms.” Absent proof of satisfaction of the debt, appellants remained obligated to Morgan throughout the summary judgment proceeding in New York, which they did not oppose despite a full and fair opportunity to do so. Appellants are, therefore, bound by the transferred judgment and cannot be permitted to stall collection thereon.

Moreover, appellants’ averments of sums obtained by Morgan as a result of payments made by other limited partners or in the purported foreclosure sale of their investment unit fall, as well, beneath the weight of their express waivers. Appellants proffered a list of possible recent contributions to Morgan from other limited partners to satisfy the Partnership debt. Other payments received by Morgan from other limited partners do not reduce appellants’ liability on the Staats Note, as that liability is independent of the Partnership liability or that of other limited partners, according to paragraphs (2) and (7) of the estoppel letter and assumption agreement. In support of their- contention that Morgan received monies resulting from Bell’s foreclosure sale of their investment unit, appellants offer a letter of notice of sale. Appellants do not demonstrate that Morgan actually received the proceeds of the foreclosure sale. However, their defense of unjust enrichment could have been raised in the original action which appellants chose not to oppose. In any event, the recoupment rights arguably available to appellants are against Bell, not Morgan, as appellants remain primarily liable to Morgan on the Staats Note.

Every holder of a negotiable instrument is deemed, prima facie, a “holder in due course.” Bogdanoff, to Use of Grossman v. Manis, 346 Pa. 243, 30 A.2d 321 (1943). A holder in due course is a holder who takes an instrument for value, in good faith and without notice of defect, default, dishonor, or any claim to it on the part of any person. 13 Pa.C.S.A. § 3302. To the extent a holder of an instrument is a holder in due course, the holder takes the instrument free of all defenses of persons with whom the holder has not dealt, with the exceptions of the defenses of infancy, legality, misrepresentation, discharge in insolvency proceedings, or any other discharge of which the holder has notice when taking the instrument. 13 Pa.C.S.A. § 3305.

Even if appellants had not signed the documents expressly waiving all defenses, they are still bound on their obligation to Morgan by virtue of Morgan’s status as a holder in due course. Morgan, as assignee of the Staats Note and accompanying documents, is a “remote transferee” in commercial parlance. Morgan took possession of the documents for value, the loan proceeds advanced to Bell, in the normal course of Morgan’s business. At the time of assignment, June 10, 1986, appellants were not in default. Appellants signed the estoppel letter and assumption agreement, in blank, well before Bell obtained its loan from Morgan. Morgan did not deal directly with appellants but with Bell. Thus, Morgan’s status as a holder in due course of the Staats Note entitles Morgan to payment on that note pursuant to the transferred judgment, even in the absence of an express waiver of defenses.

Appellants argue, however, that the Bell-Morgan debt was discharged in Bell’s bankruptcy proceedings. On the contrary, the record discloses that Bell and Morgan reinstated their financial agreement, subject to some modifications, on August 22, 1988. The reinstatement and modifications went directly to the terms of the agreement between Bell and Morgan. By virtue of the Staats Note, paragraph (4) and the estoppel letter and assumption agreement, paragraph (7), appellants’ liability continued despite any subsequent renewals, extensions or modifications that might otherwise have affected their liability.

Judgment liens are a product of centuries of statutes which authorize a judgment creditor to seize and sell the land of debtors at a judicial sale to satisfy their debts out of the proceeds of the sale. The judgment represents a binding judicial determination of the rights and duties between the parties, and establishes their debtor-creditor relationship for all the world to notice when the judgment is recorded in a Prothonotary’s Office. When entered of record, the judgment also operates as a lien upon all real property of the debtor in that county. 42 Pa.C.S. Sections 4303(a)(b), 1722(b) and 2737(3).
The judgment lien represents security for the underlying debt, Commonwealth v. Meyer, 169 Superior Ct. [Pa.Super.] 40, 82 A.2d 298 (1951), and conveys a right of execution to the judgment creditor in satisfaction of his debt. The judgment not only affects all real property owned by the debtor, but extends to his equitable interests, Auwerter v. Mathiot, 9 Serg. and R. 397 (1823) and beneficial interests as well Davis v. Commonwealth Trust Company, 335 Pa. 387, 7 A.2d 3 (1939).

In re Upset Sale, Tax Claim Bureau of Berks County, 505 Pa. 327, 334, 479 A.2d 940, 943 (1984). Judgment creditors have a protectable property interest as the judgment is a valuable form of property. Id. at 335, 479 A.2d at 944. The exercise of judicial discretion to stay execution on a creditor’s judgment involves a balancing of the rights of the debtor and creditor. Kronz v. Kronz, supra 393 Pa.Super. at 233, 574 A.2d at 94. “The true principle is that equity has no jurisdiction unless the controlling facts are proved by matters of record, or by undisputed writings, or are admitted.” Brackin v. P.E. Welton Engineering Co., 283 Pa. 91, 98, 128 A. 818, 820 (1925).

At bar, appellants contend that two additional installment payments were made on the Staats Note. Thus, conclude appellants, they should be credited with these payments as the alleged payments significantly reduce their debt owed to Morgan. Unfortunately, these alleged payments are not proved by matters of record, or otherwise verified sufficiently, to call into question the amount due. Had appellants demon- strated payments, subsequent to the rendition of the judgment, sufficient to satisfy the judgment, under Hughes v. Shreiner (n. 5), the judgment could be stricken. Bald statements of prior payments, absent more, cannot be used to attack the judgment in an ancillary proceeding.

As a final inquiry, we explore whether the doctrine of res judicata operates to bar appellants’ claims in support of their petition for a Rule upon Morgan to show cause why execution should not be stayed or to set aside the execution. A subsequent action is wholly barred if it shares with the earlier judgment a concurrence of four elements:

(1) an identity of the thing sued upon;
(2) an identity of the cause of action;
(3) an identity of the person and parties to the action; and
(4) an identity of the quality or capacity of the parties suing or sued.

In re Estate of Hillegass, 322 Pa.Super. 139, 144, 469 A.2d 221, 223 (1983) (citations omitted).

The fundamental principle upon which [res judicata] is based is that a court judgment should be conclusive as between the parties and their privies in respect to every fact which could properly have been considered in reaching the determination and in respect to all points of law relating directly to the cause of action and affecting the subject matter before the court.
Bearoff v. Bearoff Brothers, Inc., 458 Pa. 494, 498, 327 A.2d 72, 75 (1974). “The essential inquiry is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights.” Township of Ohio v. Builders Enterprises, Inc., 2 Pa. Commonwealth Ct. 39, 41, 276 A.2d 556, 557 (1971). “When the cause of action in the first and second actions are distinct, or, even though related, are not so closely related that matters essential to recovery in the second action have been determined in the first action, the doctrine of res judicata does not apply.” Id. at 42, 276 A.2d at 558. Further, the Court in Haefele v. Davis, 399 Pa. 504, 508, 160 A.2d 711, 713 (1960), citing Wright v. Weber, 17 Pa.Superior Ct. 451, 457 (1901), cautioned
The conclusive effect of a judicial decision cannot be extended by argument or implication to matters not actually heard and determined nor to collateral questions which arise but do not become part of the case ... [A] former judgment is not conclusive of anything which was not directly decided by it or was not material to the decision. Before such effect can be given to it in another suit, it should appear either from the record, or aliunde, that it must have rested on the precise question which it [is] sought again to agitate.

Id. 322 Pa.Super. at 144-45, 469 A.2d at 223-24. When a judgment by default becomes final, all the general rules in regard to conclusiveness of judgments apply. See Zimmer v. Zimmer, 457 Pa. 488, 326 A.2d 318 (1974) (a default judgment as a result of failure to answer is as conclusive as a judgment entered on a jury verdict). A default judgment is res judicata with regard to transactions occurring prior to entry of judgment. Quaker City Chocolate & Confectionery Co. v. Warnock Bldg. Ass’n., 347 Pa. 186, 32 A.2d 5 (1943).

Instantly, appellants entered an appearance through counsel in the New York summary judgment proceeding but chose not to oppose the motion for default judgment, for the stated purpose that they lacked the financial resources to continue litigation. Both appellants are knowledgeable investors who were represented by competent counsel throughout the investment process and at the original proceedings instituted by Morgan in New York to recover on the Staats Note.

Permitting the requested Rule upon Morgan, we conclude, is tantamount to allowing appellants to move the action to Pennsylvania, thereby circumventing (1) their express waivers, (2) their agreement to litigate in New York applying New York law to any disputes on their investment, and (3) the res judicata effect of the summary judgment proceedings in New York.

This court articulated the policy underlying the doctrine of res judicata in Consolidation Coal Co. v. Dist. 5, United Mine Workers:

The res judicata doctrine is a judicial creation aimed at preventing a multiplicity of suits. It protects a party from the vexation of having to defend itself against a claim for which a final judgment has already been entered. Furthermore, it serves the public interest by keeping the courts clear of disputes that have been decisively resolved.
336 Pa.Super. 354, at 362, 485 A.2d 1118, at 1122 (emphasis added; citations omitted); see also LeBeau v. LeBeau, 258 Pa.Super. 519, at 523-25, 393 A.2d 480, at 482.

Coleman v. Coleman, 361 Pa.Super. 446, 454, 522 A.2d 1115, 1119 (1987) (en banc). Accordingly, the doctrine of res judicata precludes a collateral attack by appellants on Morgan’s judgment.

For the foregoing reasons, we hold that the Allegheny County Court of Common Pleas properly exercised its discretion when denying appellants’ petition for a Rule on their judgment creditor, Morgan, to show cause why execution should not be stayed or set aside, and affirm the court’s order refusing appellants relief.

Order affirmed.

      . In effect, the appellants became directly liable on their Note to Morgan Guaranty, the lender to whom the Note was eventually assigned.

      . See Negotiable Promissory Note (Staats Note) at 3, paragraph (8): For purpose of any action, suit or other proceeding in respect of this Note, Maker hereby submits and consents to the jurisdiction of the courts of the State of New York and of the United States District Court for the Southern District of New York, and Maker agrees that any such action, suit or proceeding may be brought by Payee or the then holder of this Note in the Supreme Court of the State of New York, New York County, or in the United States District Court for the Southern District of New York, and that service of process may be made upon Maker by mailing a copy of the summons and any complaint to Maker by registered mail, at the address specified below by Maker’s signature (or such other address as Maker may specify from time to time in writing to Payee or the then holder of this Note). In any such action, suit or proceeding, Maker hereby waives (and Payee or the then holder of this Note shall be deemed to have waived) trial by jury and Maker hereby waives and agrees not to assert, by way of motion or otherwise, in any such action, suit or proceeding, any claim that he is not personally subject to the jurisdiction of the above-named courts, that the action is brought in an inconvenient forum or that the venue of the action is improper----

      . The district court for the Southern District of New York calculated and entered judgment on behalf of Morgan against appellants in the sum of $184,600.43. The petition to register this foreign judgment listed $184,600.43 as the judgment amount. The foreign judgment on that amount was filed with the prothonotary’s office of Allegheny County on April 6, 1992. Despite the inclusion of an amended petition for default judgment which calls for a recalculation of the amount owed by appellants as ($195,638.21), the judgment entered against appellants in Pennsylvania was in the above amount ($184,600.43).

      . On May 22, 1992, the trial court granted appellants’ application for supercedeas to stay execution pending appeal, conditional upon appellants' posting a bond in the amount of ten thousand dollars ($10,-000.00), which they posted on the same day.

      . See Secured Term Note Reinstatement and Modification Agreement.

      . See generally In re Upset Sale, Tax Claim Bureau of Berks County, supra (judgment creditors can lose valuable property rights where realty securing their judgment is sold in tax proceedings without specific notice to creditor); Foster v. Rubenstein, 383 Pa. 236, 118 A.2d 195 (1955) (court may stay execution pending resolution of equity proceedings between the same parties, involving the same subject matter in another court); Commissioners of Sinking Fund, of City of Philadelphia v. City of Philadelphia, 324 Pa. 129, 188 A. 314 (1936) (stay of execution proper upon a showing of oppression and unnecessary hardship to the judgment debtor); Lewis v. Linton, 207 Pa. 320, 56 A. 874 (1904) (application for stay of execution writ should have been granted where petitioner averred material facts that since the rendition of the judgment, it had been fully paid); Turnway Corp. v. Soffer, 265 Pa.Super. 357, 401 A.2d 1345 (1979) (conflict between court order and order of the Department of Environmental Resources sufficient to stay execution against supersedeas bond until purported conflict resolved). Compare Pennsylvania Co. for Ins., etc. v. Scott, supra (Act arbitrarily reclassifying judgment creditor as subject to statutory stay in order to preclude availability of certain debt collection method deprives creditor of resort to valid remedy and is unconstitutional as violative of Article III, section 7 of the Pennsylvania Constitution and the Fourteenth Amendment of the Federal Constitution); Hughes v. Shreiner, 202 Pa. 488, 52 A. 30 (1902) (absent averment of want of jurisdiction or legal satisfaction of debt, affidavit of defense insufficient to stay foreign judgment execution); Wilnerv. Croyle, 214 Pa.Super. 91, 252 A.2d 387 (1969) (where husband and wife both liable on entire obligation to creditor and neither was willing nor able to pay the obligation unilaterally and proceed against the other for contribution, insofar as possible, property of each ordered sold to pay one-half of the judgment).


author: TAMILIA, Judge.

text:
    631 A.2d 639
    COMMONWEALTH of Pennsylvania, Appellant, v. Mazon JOHNSON.
    Superior Court of Pennsylvania.
    Argued April 19, 1993.
    Filed Sept. 3, 1993.

      Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Anthony Carrozza, III, Media, for appellee.
    Before CAVANAUGH, WIEAND, McEWEN, CIRILLO, DEL SOLE, BECK, TAMILIA, JOHNSON and HUDOCK, JJ.
   TAMILIA, Judge.

In this appeal by the Commonwealth, we are asked to determine the correct standard of review on a motion to arrest judgment, and under the appropriate standard of review, to determine whether the trial court erred in arresting judgment on defendant’s conviction for third degree murder. Finding, under the applicable case law and the specific facts of this case, that the trial court erred, we vacate the Order arresting judgment for third degree murder, and we remand for reinstatement of the original verdict and imposition of sentence thereon.

The factual and procedural history of this case are summarized as follows. At approximately 6:30 p.m. on November 8, 1990, the defendant, Mazon Johnson, shot his girlfriend, Dana Chinn, in the head with a .22 caliber pistol. Defendant was visiting Chinn’s home at the time with his friend, Shawn Williams. At the time of the shooting, the decedent’s five-year old daughter, Tashara, was coming into the kitchen to ask her mother for a drink of water. Tashara was in the hallway, approximately one foot from the kitchen, and saw defendant arguing with the decedent, telling her “he don’t want no son.” This remark was in reference to a statement the decedent had made earlier in the evening, telling defendant she was pregnant, although she was not. Tashara then saw defendant push the decedent while holding the handgun with both hands. Defendant pointed the gun at the victim’s head and shot her from a distance of approximately two to four feet. Defendant and Shawn Williams ran out the back door and defendant threw the gun under a bridge. When defendant returned to his home at 9:00 p.m., he was arrested by the police. The victim died a short time later at the hospital.

Defendant waived his right to a jury trial and was tried by the Honorable Lisa Aversa Richette on charges of murder, voluntary manslaughter, involuntary manslaughter and possessing an instrument of crime. Tashara Chinn testified as an eyewitness for the Commonwealth, and defendant and Shawn Williams testified as eyewitnesses for the defense. Williams, however, did not see the shooting take place, as he claimed he was on the telephone and had his back turned to defendant and the victim.

At the conclusion of trial, the trial court stated that it did “not believe the defendant’s version at all of what happened. It’s physically impossible that this woman would have been shot in the temple, as she was, on the facts as [defendant] portrays them” (N.T., 3/20/91, pp. 209-210). The trial court went on to find there was malice sufficient to sustain a conviction for third degree murder. Id. Defendant was adjudicated not guilty of involuntary manslaughter and possessing instruments of crime.

On March 27, 1991, defendant filed a motion for a new trial and/or arrest of judgment, alleging that the evidence was insufficient to sustain his conviction in that it failed to establish that the killing was committed with malice. Defendant contended the evidence failed to establish beyond a reasonable doubt that he “consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm.”

Hearing was held on defendant’s motion on July 17, 1991, and the trial court initially rejected defendant’s claim, stating that when it heard the case, it “felt there was malice,” and decided “to proceed on the basis of third degree murder” (N.T., 7/17/91, pp. 12-13). Later in the same hearing, however, after defendant’s mother and father testified on his behalf, the trial court stated: “In thinking about this, maybe there isn’t enough evidence to sustain third degree murder. I’m not sure. Maybe there is a reasonable doubt about the third degree, but there is no reasonable doubt about involuntary manslaughter” (Id., p. 18). The trial court then continued the matter in order to reread the notes of testimony (Id., pp. 24-25).

Further hearing was held on September 25, 1991, at which time the trial court indicated “the whole thing in this case is the issue of malice ... and I made my finding based on the fact that pointing a loaded gun at someone’s head is per se malice, for which there is a substantial body of authority. But, on the other hand, there is only one witness that says this. And that’s that child.” (N.T., 9/25/91, p. 7.)

The trial court stated to the assistant district attorney that “I’m very concerned about this, I really am, because I have to send him away for 5 years.” (Id., p. 7.) The following exchange then occurred between the trial court and the assistant district attorney:

MR. PERRICONE: Your Honor, the problem that the court — one of the concerns involved in the court’s making its decision here is the fact that we, of course, are bound by certain principles of law to follow upon review of the verdict.
THE COURT: Correct.
MR. PERRICONE: And, as the court sat as the finder of fact, perhaps sometimes the temptation is to re-evaluate facts after they — because rereading the notes of testimony—
THE COURT: No; what I’m doing is, I’m looking at this evidence to see whether or not it does sustain this verdict beyond a reasonable doubt, that’s what I’m looking at, which I think is my proper function at this point.
MR. PERRICONE: Exactly, Your Honor.
And in reviewing a verdict at the post-verdict stage, whether it’s reviewing a jury verdict or a verdict by Your Honor, the court is bound by the standards of law set out in the cases cited in my brief; that is, that one must evaluate the evidence in the light most favorable to the Commonwealth.
And in this particular case, [defendant’s] argument, and some of the concerns that the court is expressing, were evidence that was inconsistent with the Commonwealth’s evidence, consistent only with the defense evidence.
THE COURT: No, no.
Excuse me.
Your child, who was very good, her evidence is believable only if she did, in fact, see everything.
MR. PERRICONE: I agree, Your Honor.
THE COURT: And when I reread this, and looked at the exhibits, and so forth, it just seemed to me she may have seen more of it, but not all of it.
MR. PERRICONE: Well, Your Honor, she testified that she did see all of it and put herself—
THE COURT: I know, but I don’t have to believe her totally.
MR. PERRICONE: Another woman, I believe that’s Miss James, testified that after the gunshot happened, that the little girl came running from the kitchen area saying, mommy has been shot.
THE COURT: She saw her after she was shot, but I don’t think she saw all that she says she saw because she was on the stairwell.
MR. PERRICONE: The problem, Your Honor, is that, at this stage, it would not be a proper application of the standards of review to disbelieve parts of her testimony, and believe other parts of her testimony.
THE COURT: Why not? I can do that.
MR. PERRICONE: That is requiring the court to reevaluate the credibility of witnesses, which is—
THE COURT: No; I can have a reasonable doubt about certain parts of her testimony when I review it.
That’s the whole function of a reviewing court.
MR. PERRICONE: Your Honor, but you must — the reasonable doubt cannot be based on a reevaluation of the evidence that has already been submitted to the court.
THE COURT: What can it be based on?
MR. PERRICONE: The re-evaluation can be, if you take the evidence in the light most favorable to the Commonwealth—
THE COURT: I have.
MR. PERRICONE: —Then you look at it and you say it doesn’t make out the crime.
In this particular case, Your Honor, the evidence in the light most favorable to the Commonwealth, the little girl testified that she saw Zonie push her mommy against the wall, point the gun at her and shoot, and mommy dropped to the ground.
Now, whether that is intentional or accidental, that’s for the finder of fact to determine.
If it is accidental, Your Honor, if we have an accidental situation where a person pushes somebody against a wall, points a gun at that person’s face, and pulls a trigger, under all the case law that is cited, Your Honor clearly was familiar with at the time of the trial, and has been recited in my brief, that constitutes malice sufficient for third degree murder.
THE COURT: I know; I know.
But I don’t think she was in a position to really say precisely what was going on. ' I think she heard the shot, she saw her mother fall.
MR. PERRICONE: Your Honor, that is not her testimony.
THE COURT: I understand that.
MR. PERRICONE: It would be an inappropriate application of the standard of review to now decide that she could not have seen all this.
THE COURT: It just doesn’t make sense to me.

(Id., pp. 10-14) (emphasis added.) The trial court then stated it was “just trying to avoid that mandatory sentence.” (Id., p. 15). Thereafter, the trial court denied defendant’s motion for a new trial, but granted his motion in arrest of judgment as to the conviction for third degree murder. The trial court adjudicated defendant guilty of involuntary manslaughter and sentenced defendant to a term of one (1) to five (5) years imprisonment. The Commonwealth appealed.

The trial court stated in its Opinion:

[I]n order for a trial court to properly grant the Motion of a criminal defendant to arrest judgment on the basis of insufficient evidence, it must determine, after accepting all of the evidence it chooses to believe, and all reasonable inferences therefrom upon which the verdict could possibly have been based, that such evidence and such inferences would, nonetheless, be insufficient as a matter of law to find the defendant guilty beyond a reasonable doubt of the crime charged. Commonwealth v. Bagley, 296 Pa.Super. 43, 47, 442 A.2d 287, 289 (1982), citing Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977); Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973).

(Slip Op., Richette, J., 4/16/92, p. 7; emphasis added.)

After the submission of briefs and oral argument before a panel of this Court, this case was certified to the Court en banc to re-assess the viability of the standard of review utilized by the trial court.

In Meadows, supra, our Supreme Court stated the appropriate standard of review as follows:

“In passing upon such a motion [in arrest of judgment], the sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences arising therefrom. The effect of such a motion is to admit all the facts which the Commonwealth’s evidence tends to prove.” Citations omitted; emphasis in original.
In order for a trial court to properly grant a criminal defendant’s motion in arrest of judgment on the ground of insufficient evidence, “it must be determined that accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed [the verdict could properly have been based], it would be nonetheless insufficient in law to find beyond a reasonable doubt that the [defendant] is guilty of the crime charged.” Commonwealth v. Blevins, 453 Pa. 481, 483, 309 A.2d 421, 422 (1973)....

Commonwealth v. Meadows, 471 Pa. 201, 204, 369 A.2d 1266, 1268 (1977). The Meadows Court went on to emphasize that a trial judge’s authority over a nonjury verdict is no greater than the authority of a judge over a jury verdict. Id. at 205, 369 A.2d at 1268 n. 5.

More recently, a panel of this Court stated:

[A] judge’s role during a non-jury trial is not equivalent to his or her role with respect to post-trial motions. During trial,
the province of a trial judge sitting without a jury is to do what the jury is required to do, namely, consider all the evidence; reconcile contradictions and discrepancies in the testimony, if possible; dismiss what is incredible; and, from all that is presented, assemble a logical, continuous account which rings with verisimilitude, appeals to reason and convinces the judgment that the controverted event occurred in that and in no other manner.
Commonwealth v. Lemons, 404 Pa. 263, 268, 171 A.2d 785, 788 (1961). With respect to post-trial motions, however, the trial judge’s role is to consider and rectify, if necessary, alleged trial errors.

Commonwealth v. Nock, 414 Pa.Super. 326, 333, 606 A.2d 1380, 1383 (1992). When considering a post-verdict motion in arrest of judgment or the granting of a new trial, “the trial court cannot alter the verdict based upon a redetermination of credibility or a re-evaluation of evidence.” Id. at 334, 606 A.2d at 1384.

Nevertheless, the trial court in this case, in conducting its post-verdict review, relied upon a statement in Bagley, supra, that in assessing the sufficiency of the evidence, it may accept so much of the evidence “it chooses to believe.” The Bagley panel based this proposition on Meadows and Blevins, but a careful review of those cases does not support that finding. Indeed, our research discloses no other published appellate decision in this Commonwealth which contains or relies upon the contested language of Bagley. Moreover, in a case filed later in the same year as Bagley, Commonwealth v. Parker, 305 Pa.Super. 516, 451 A.2d 767 (1982), the Meadows standard of review on a motion in arrest of judgment was applied, and the panel found the trial court improperly reconsidered the facts in sua sponte arresting judgment on its nonjury verdict (“the trial court would have been required to view the evidence in the light most favorable to the Commonwealth as verdict winner and could not have altered the verdicts based upon a redetermination of credibility or a re-evaluation of the evidence ”) (Parker; supra at 524, 451 A.2d at 771; emphasis added).

Inasmuch as it does not appear the language in question in Bagley was applied to the decision in that case, or in fact to any other case, we deem it merely dicta and an unintended addition to the standard of review. We take this opportunity, therefore, to specifically find the language in Bagley, “it chooses to believe,” to have no precedential value and to state once again our adherence to the standard of review of Meadows and its progeny.

Having determined the proper standard of review, we turn to the specific facts of this case, and we find the trial court impermissibly engaged in a redetermination of credibility and reevaluation of the evidence. Nock, supra; Parker, supra.

Viewed in the light most favorable to the Commonwealth, the evidence at trial established that defendant, shortly after the victim told him she was pregnant, shoved the victim, told her he did not want a son, pointed a gun at her head and shot her. This episode was viewed by the victim’s five-year old daughter, Tashara, from a hallway approximately one foot from the kitchen. The trial court contends that its reexamination “of the Commonwealth’s own photographs of the scene might show that the child could not, from her stairwell vantage point, have been able to look directly into the kitchen to see the pushing she described.” (Slip Op. at 8.) Tashara’s trial testimony, however, was not that she was in the stairwell, but that she was standing near the stairwell, and only about one foot from the kitchen, with a view of the shooting (N.T., 3/20/91, pp. 29-31).

The trial court further wondered:

How could this child have seen what other Commonwealth witnesses directly engaged in the action had missed? Would Dana’s friends and houseguests lie about an argument to protect a defendant to whom they had little allegiance? Finally how colored was the little girl’s recital of the scene by background television (in which guns seem always to be pointed directly at the victim)? Finally would Dana’s friends be more likely to lie about the Dana-Mazon relationship or a child to whom the defendant was essentially a stranger and her mother’s lover?

(Slip Op. at 9.) We find this introspective soliloquy carries little weight as none of the queries contained therein are supported by the trial record.

The evidence established Tashara was the only eyewitness to the shooting, as the only other person in the kitchen besides defendant and the victim was defendant’s friend, Shawn Williams, who testified his back was turned at the time of the shooting. The testimony of the victim’s friends and house-guests did not conflict with Tashara’s. As they were in another part of the house at the time of the shooting, they could not have seen it, and their testimony was not that there was no argument, but only that they did not hear one.

We are perplexed by the trial court’s reference to the influence on Tashara’s testimony by “background television.” No such reference was ever made at trial, although the following exchange between defense counsel and the trial court occurred at the hearing on post-verdict motions:

MR. CARROZZA: As you see people holding guns on t.v., same exact way that [Tashara] demonstrated, exactly the same way that you watch when you watch t.v., you watch somebody hold a gun.
THE COURT: I know, but nobody has been able to break down that little girl to say you didn’t really see this, or that he was holding the gun another way, or anything.

(N.T., 7/17/91, p. 7.)

This Court finds it remarkable that the testimony of Tashara Chinn, whom the trial court described during trial as “absolutely marvelous,” “wonderful,” an “extraordinary child,” and the “best witness” in the case (N.T., 3/20/91, pp. 36; 50; 95); and at the post-verdict hearing as “unusually bright,” “very accurate” and “extraordinary” (N.T., 7/17/91, pp. 2; 3; 7), was later found to be incredible and created “a veritable forest of reasonable doubt” on “the court’s mental landscape” (Slip Op. at 8).

In another recent case in which Judge Richette arrested judgment for third degree murder after a nonjury trial, this Court, per the Honorable Justin M. Johnson, vacated the arrest of judgment and emphatically stated:

In light of the fact that the initial verdict was guilty, it was not the function of the trial court, in reviewing post-trial motions, to reweigh the evidence presented at trial. The evidence, when reviewed in light of the appropriate standard of review for a post-trial motion in arrest of judgment, is sufficient to uphold Bigelow’s conviction on the charge of third degree murder. We, therefore, conclude that the trial court erred in arresting judgment on the charge of third degree murder.

Commonwealth v. Bigelow, 416 Pa.Super. 449, 453, 611 A.2d 301, 304 (1992). The Bigelow court also accurately noted:

A person may be convicted of third degree murder where the killing is neither intentional nor committed during the perpetration of a felony, but when there is malice aforethought. Malice in its legal sense exists not only where there is particular ill will, but also where there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty.

Id.

Thus, even in the situation where defendant argued that he and the victim merely were playing around and he did not know the gun was loaded, his belief was irrelevant for the purpose of determining the existence of malice. Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981) (where defendant claimed he did not know the gun was loaded and he intended only to “scare” the victim, his conduct nevertheless unjustifiably created an extremely high degree of risk, thereby evincing a wanton and reckless disregard for human life and constituted legal malice).

For the foregoing reasons, we find the evidence at trial, viewed under the proper standard, amply supported the trial court’s guilty verdict for third degree murder. We further find the trial court erred in arresting judgment on the charge of third degree murder. We reiterate that it is not the function of the trial court to reevaluate credibility and weight of evidence upon post-trial motions, but only to ascertain the presence or absence of trial error in accordance with the proper standard of review.

Accordingly, we vacate the Order in arrest of judgment on the charge of third degree murder and the judgment of sentence imposed on the charge of involuntary manslaughter.

Order in arrest of judgment and judgment of sentence vacated and case remanded for reinstatement of the original verdict and for sentencing thereon.

Jurisdiction relinquished.

      . This apparently refers to 42 Pa.C.S. § 9712(a) which requires a mandatory five-year sentence for, inter alia, third degree murder.

      . Following is the complete statement on the law as to the standard of review, as contained in Commonwealth v. Parker, 305 Pa.Super. 516, 451 A.2d 767 (1982):
      A trial judge has no more authority over a verdict in a non-juiy trial than he does over a jury verdict. Commonwealth v. Meadows, 471 Pa. 201, 205, 369 A.2d 1266, 1268 n. 5 (1977); Commonwealth v. Brown, supra [192 Pa.Super. 498, 162 A.2d 13 (1960)]; See Commonwealth v. Johnson, 359 Pa. 287, 59 A.2d 128 (1948); Pa.R.Crim.P. 1102(a). As we have stated, the authority of a trial judge following the recording of a verdict in a non-jury trial is limited to consideration of post-verdict motions in arrest of judgment or the granting of a new trial. Commonwealth v. Meadows, supra; Commonwealth v. Brown, supra. The standard of review for the trial court as it passes upon a motion in arrest of judgment, is limited to a determination of the absence or presence of that quantum of evidence necessary to establish the elements of the crime. Commonwealth v. Meadows, supra 471 Pa. at 208, 369 A.2d at 1269; Commonwealth v. Slout, 288 Pa.Super. 471, 432 A.2d 609 (1981); Commonwealth v. Ponder, 260 Pa.Super. 225, 393 A.2d 1235 (1978). Had defendant moved for an arrest of judgment, the trial court would have been required to view the evidence in the light most favorable to the Commonwealth as verdict winner and could not have altered the verdicts based upon a redetermination of credibility or a re-evaluation of the evidence. See Commonwealth v. Meadows, supra; Commonwealth v. Slout, 288 Pa.Super. 471, 432 A.2d 609 (1981); Commonwealth v. D'Angelo, 282 Pa.Super. 1, 422 A.2d 645 (1980); Commonwealth v. Kirkman, 264 Pa.Super. 170, 399 A.2d 720 (1979); Commonwealth v. Ponder, supra.

        Id. at 523-524, 451 A.2d at 770-771.


text:
    631 A.2d 645
    Dale Lynn McCUSKER, Appellee, v. Cathy A. McCUSKER, Appeal of Gary D. WILT, Esquire.
    Superior Court of Pennsylvania.
    Argued June 22, 1993.
    Filed Sept. 16, 1993.

      Gary D. Wilt, in pro. per.
    Before ROWLEY, President Judge, and TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This case involves an appeal of the order of the Court of Common Pleas of Fulton County finding Gary D. Wilt in contempt of court. We affirm.

The facts of record disclose that Wilt began his legal representation of the defendant, Cathy A. McCusker, as of January 29, 1992, with his filing of a Motion To Vacate Order Re Custody. In the ensuing months, an agreement was reached between the litigants resulting in a sharing of legal and physical custody of the parties’ minor child. Thereafter, on August 24, 1992, the natural father filed a complaint for “primary residential custody” on the ground that shared custody was no longer in the best interests of the minor child.

The defendant’s attorney’s request for “Special Relief’ was deferred on October 5,1992, pending an in camera conference with counsel to determine an interim disposition to be held at the request of either party and scheduled by the court administrator.

On motion of Attorney Wilt, an in camera conference was scheduled by the court for October 16, 1992. This meeting resulted in an order of even date reinstating the initial custody order of March 5, 1992 (Shared custody). Post-trial motions were filed by counsel for the defendant on November 2, 1992. On petition of the defendant, a hearing was scheduled on December 7, 1992, at 9:30 a.m. by the court. On November 30,1992, Attorney Wilt prepared a motion for a continuance of the December 7, 1992, custody hearing for the reason that he was scheduled to appear in Bedford County criminal court on two cases the same day and time. By order issued on December 2, 1992, the request for a continuance was denied by the Fulton County court.

On the date and time set for the custody hearing, Attorney Wilt was not present in court. He appeared at 10:10 a.m., an hour and ten minutes after the time listed to begin taking testimony. He gave as his reason for being late the necessity to appear at 9:30 a.m. in Bedford County on two criminal cases which were scheduled for trial, and he was there to select juries for each case. However, while at the Bedford County court, he was able to convince opposing counsel and the trial court to continue both cases so that he could proceed in the instant custody matter.

Attorney Wilt offered that, by an “oversight on [his] part”, he had applied for a continuation in both Bedford County cases at the same time that he requested a continuance in the present case. Because Bedford County court had taken no action in either criminal case and the jury had assembled there, he “felt that [he] had to be there” in Bedford County.

The Fulton County court judge pointed out that as early as October of 1992, Attorney Wilt was aware of the scheduled December 2, 1992, hearing at 9:30 a.m. on the McCusker case. The court also remarked on communicating with the court administrator of Bedford County at approximately 10:00 a.m. that morning and being informed that Attorney Wilt had advised Bedford County of his application for a continuance in Fulton County because of the conflict, but Bedford County court personnel heard nothing from Attorney Wilt thereafter. As a result, the Bedford County judge directed the court administrator to have all parties present in the criminal cases scheduled to appear at 9:30 a.m. on December 2, 1992.

Further, of record appears the following discourse between counsel for the defendant and the court:

[THE COURT]: The impression that I was left is that had they [Bedford County officials] been informed of the situation in a timely fashion, that there would have been a continuance granted in Bedford County so you could have been here at 9:30 this morning. Is that accurate or?

MR. WILT: I don’t know as to the impression. I cannot say that their response would have been had I told them immediately after hearing from you, or I didn’t hear from you actually, from the Court Administrator that you had denied the continuance here.

I don’t know what they would have done, but certainly they were, as of the latter part of last week, they had in Bedford County both requests for a continuance and acknowledged that the proceeding was pending here also.

THE COURT: I gather you got a continuance this morning?

MR. WILT: I did indeed.

THE COURT: Well, I certainly don’t understand why you wouldn’t communicate -with the Court over there to tell them what the outcome was of your continuance request here. You knew you had an obligation to be here this morning at 9:30.

You knew that they had a continuance request pending before them over there that was awaiting determination of this continuance request, and I just fail to understand why you didn’t at least communicate with them when you knew the outcome of this.

You knew you had to be in two places at one time. You knew it’s physically impossible to do that and you knew that you were obliged to be here for, at least, the last two and a half months, and you simply failed to show up here, Mr. Wilt.

That’s contemptuous conduct. You didn’t communicate with us this morning to tell us what the situation was. We found out this morning when we came into court, and your client was very upset and nervous that she had been told at the very last minute that she would have to find other counsel. She informed me she was unsuccessful in doing that because she found out at 11:00 Friday morning, I think it was, and this is just not a way to start a proceeding like this.

Mr. Gordon [counsel for the plaintiff/father] has also informed us in court that he has several expert witnesses who are here prepared to testify this morning. They’re being paid fees to be here, I assume. They have a schedule to try to maintain.

If we don’t conclude this case today, I don’t know whether it’ll be concluded. It may be many months until we can find another date to conclude the case because of the court schedule, and I just don’t know that the explanation given here to what has happened this morning is an acceptable explanation.

MR. WILT: If I may, Judge. I think if I can read directly into your ire that you have a conclusion that I knew that the Court in Bedford County would continue the case if I had renewed my request, and I had no such knowledge or inkling. I didn’t know.

THE COURT: The point is you made no effort to find out. If you had made the effort last week and the court had denied your request after you learned what the outcome of the motion was here, this might be in a different posture. Although, I don’t know what the posture would be.

We’re not at that point. The point is that was never — that request was never made. So we’ll never know what the Court would have done based on what happened this morning.

We may not get the case done for many months because of what took place because of your thoughtlessness just because you didn’t follow through and to check with the Court in Bedford County about this.

Particularly when as much notice was given as was given in this ease. We are talking about — I think you knew about this as early as September and it’s now December the 7th. There’s just no excuse for that.

MR. GORDON [Counsel for the plaintiff/father]: ... I would have been happy to start the hearing at 10:30.

I was not apprised. I did not know that there was either being a no showing or late showing by Mr. Wilt in this case. It seems to me accommodations could have been made.

MR. WILT: The truth is that I did not know this morning whether it was going to be an hour or how long it would be. I was going. I knew I had to be there for the purpose of drawing the jury, and I assumed that I would be able to get that concluded by ... the 11:00 so timef] that we had calculated, and that’s—

THE COURT: You knew we would be here at 9:30 this morning. You knew that we would be here because the continuance was denied. That’s what you knew. You absolutely knew that much as of last week and that’s the distressing part and we were here.

Everybody was here with the exception of one individual, Mr. Wilt, and I don’t think that you did what you should have done in terms of communicating with the Court in Bedford County about your situation here in Fulton County, your obligation to this Court, and that really is — had [Bedford County] Judge ... been apprised of this, had he then denied your continuance request, then we would have had to take a second look at the thing and maybe come to some other conclusion, but that was never done, and that’s the part that’s of concern.

You just chose to pick and choose between two matters that you were obligated to be before the Court on. One which you knew you absolutely had to be here because the continuance request was denied, and the other one there was one pending.

As far as I am aware, you didn’t inquire as to the status of that after this continuance requesting this Court was denied. You just simply chose between the two where a ruling by the Judge had been made on the one request and it was made here, and I suspect that this matter was scheduled a significant amount of time prior to the one in Bedford County in spite of the procedural posture of that case or cases over there.

So let’s get to the hearing [on custody] and I’ll decide what I’m going to do about this matter after I’ve had a chance to reflect on it adequately.

All right.

N.T. 12/7/92 at 7-8, 9, 10-15 (Emphasis added).

In the reproduced record we find a copy of the December 7, 1992, transcript of the Bedford County case. There, when the court inquired as to Attorney Wilt’s request for a continuance of the criminal case because of having a custody matter to be presented in Fulton County that same day, Attorney Wilt responded:

That’s correct, and the judge there [in Fulton County] denied a request for a continuance, and it is my error in not advising you of that last week.

RR 13A (Emphasis added).

With the court finding the appellant in contempt, the penalty phase of the order was the payment of opposing counsel’s additional fees and costs incurred as a result of the delay. This appeal was perfected and challenges the contempt order on the ground that “there is no intentional and willful commission of contemptuous act”, and, further, the punishment imposed is excessive.

In this Commonwealth, the power to impose summary punishment for contempt of court is restricted to three situations, one of which is applicable here:

(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.

As amended December 20, 1982, P.L. 1409, No. 326, art. II, § 201, 42 Pa.C.S.A. § 4132(2) (Supp.1992). Under Section 4132, it is beyond peradventure that prior to a finding of contempt, where an attorney fails to appear or appears late for a court proceeding set by court order, there must be a showing that the failure to show or appear tardy was intentional. In re Matter of Ring, 492 Pa. 407, 424 A.2d 1255 (1981); Commonwealth v. Washington, 470 Pa. 199, 368 A.2d 263 (1977); In re James, 307 Pa.Super. 570, 453 A.2d 1033 (1982) .

In United States v. Seale, 461 F.2d 345, 368 (7th Cir.1972), the court thoroughly examined the need for proof of the element of intent, and found that the minimum intent required to prove contempt is “a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful.” Accord Washington, supra.

However, this Court has established that direct (as well as subjective) intent is not necessary where a reckless disregard for the directions of the court can be proven. Matter of James, 323 Pa.Super. 149, 470 A.2d 174, 176 (1984); Medve v. Walakovits, 305 Pa.Super. 75, 451 A.2d 249, 252 (1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2123, 77 L.Ed.2d 1303 (1983). In each case, the appellants did not fail to appear. Rather, they merely appeared late and were found to be in contempt of the courts’ directives. On appeal, we sustained the contempt findings on the ground that each had engaged in reckless disregard for the orders of the court. This was held to be tantamount to an intentional contumacious act.

It is abundantly clear that the appellant here acted “recklessly” in not only appearing late at the custody hearing in Fulton County, but neglecting to advise the Bedford County court that his request for a continuance in Fulton County had been denied.

The appellant admitted that, albeit aware of the Fulton County hearing and the denial of his request for a continuance there, he elected to appear in Bedford County on the date scheduled for the Fulton County custody case to seek a continuance of the two criminal cases. His failure to act sooner is attributed to an “error” on his part in permitting the passage of a week without advising the Bedford County court of the Fulton County court’s actions in denying his request for a continuance.

In Medve, supra, the attorney was aware of his obligation to appear at a pre-trial settlement at a certain hour and decided to attend to other matters instead. He claimed that his lateness was the result of oversight and not an intentional act. Nonetheless, this Court held that his tardiness was a result of a deliberate act which gave rise to a substantial certainty of the proscribed result or a reckless disregard of that result, and that the requisite intent could thereby be established.

The lateness of Wilt in this case is quite similar. Once Wilt chose to attend the Bedford County cases and seek a continuance, this eleventh-hour conduct was such that he acted with a substantial certainty that he would be tardy or with reckless disregard of such tardiness. Especially given that the appellant delayed a week before informing the Bedford County court of the Fulton County court’s denial of his continuance. Accordingly, under the rule of Medve (followed in James, supra), we affirm the order appealed.

Order affirmed.

      . It should be noted that the case was not completed and had to be rescheduled, the listing of which does not appear of record.

        . The issue for review claims the absence of any "intent” on the part of the appellant sufficient to be contemptuous, along with the appellant's belief that the punishment imposed was "excessive”. Under the facts recounted supra, when viewed against the applicable law, we find no merit to this “excessiveness” contention.