text:
    451 A.2d 760
    COMMONWEALTH of Pennsylvania v. Steven BULARD, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 23, 1982.
    Filed Oct. 15, 1982.

      Allan M. Tabas, Philadelphia, for appellant.
    Stuart L. Haimowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   WICKERSHAM, Judge:

On June 16, 1981, appellant Steven Bulard appeared before the Honorable Herbert R. Cain, Jr., charged with the theft of a vehicle as well as unauthorized use of such vehicle, and waived a jury trial. The court found Bulard guilty of both charges. On November 19, 1981, Judge Cain sentenced Bulard on Bill No. 543 June Session 1980, theft by unlawful taking or disposition, to a term of imprisonment of not less than eleven and one-half months nor more than twenty-three months in the county prison. Sentence was suspended on the remaining conviction and this direct appeal was taken.

The thrust of the Commonwealth case at trial was provided by Officer John Terry of the Philadelphia Police Department who testified that on the afternoon of May 30, 1980, he was travelling in a police vehicle on Champlost Street when he observed a red Chevrolet coming eastbound, towards him, operated by Steven Bulard. Officer Terry made a u-turn and began to follow the red Chevrolet as it went through a red light at Ogontz and Champlost. Next the red Chevrolet ran into the back of a parked vehicle on the corner; two people got out of the car and ran. Officer Terry then chased the operator of the car, whom he had identified as appellant Bulard, approximately thirty-five or forty feet into an alley where he apprehended him. The officer later determined that the vehicle was stolen. Record at 8-13.

On cross-examination Officer Terry testified:
Q. Now, did you ever lose sight of him during this chase? A. Yes.
Q. When was that?
A. When he ran into the alley. He made the right turn into the main alley, then he went approximately two doorways and he made another right turn. At that point I lost sight of him, but it was a dead end. After he made the right he couldn’t go any further. It just went into the back of a door and that was it.
Q. Were there any other people there?
A. No.

Record at 26.

The Commonwealth concluded by calling as a witness John Yoder who testified that he was the owner of the red 1979 Chevrolet Monte Carlo and that he had parked his vehicle at 9:00 a.m. on May 30, 1980, on a parking lot at Park Avenue and Chew. He was later called by the police and identified his car, which had been damaged, about 4:00 o’clock that afternoon. He said he had never given authority to Steven Bulard to operate his vehicle.

The defendant testified at trial that on the afternoon in question he was standing near the intersection of Champlost and Ogontz, outside of a bar with five or six other people. He saw his friend Leroy Lawton and they talked. About this time he heard a large crash and a minute later two people ran past him. He saw a “cop chasing them.”

A. Yes, there is a bar right there at the end of the driveway and I was standing beside it, by the door, beside the door.
Q. Were you the only one there, or were there other people?
A. There were about six or five other people there. Q. What happened as you were standing there?
A. At that time I seen a friend of mine, that Leroy Lawton, he was coming down the driveway, and he had called my name, right, because he had a beer bottle in his hand, so he called me.
So I was starting to walk up the driveway. I heard this loud crash sound. At that time, about a minute or seconds later, I heard these two people coming up behind me. They ran past me and shot out toward the left of the other driveway. It is an open driveway on the left-hand side, and they shot out that way.
And about say a second later a cop ran in the driveway, he was on foot, chasing them, and he grabbed me, threw me up against the side of the wall, and told me I just ran out of the car, I was in a stolen car.
He grabbed me, handcuffed me, handcuffed me, and took me out of the driveway, took me out to the car, and threw me in the police car.
BY THE COURT:
Q. You said he was—the cop was chasing them?
A. Yes, it was two people.
Q. Did you see them from where you were?
A. Excuse me?
Q. Did you see them at the time the cop came up? A. Did I see the two people? Yes.
Q. How many other people were left in the driveway with you?
A. Four or five people.
Q. So there are four or five other people with you at the time you were arrested in the driveway?
A. Yes.
Q. The other two dudes, they ran out the driveway and down; is that it?
A. Yes.
Q. So you don’t know anything about any red Monte Carlo being smashed up; is that right?
A. Yes.
Q. That’s right?
A. I don’t know anything about it.
Q. You weren’t driving any red Monte Carlo?
A. No, I don’t even know how to drive.
Q. If the officer says he saw you behind the wheel when he drove past you and he saw you two other times as he was chafing you, he is mistaken?
A. That’s right, it wasn’t me.
Q. You never saw this officer prior to being arrested by. him; is that right?
A. That’s right.
Q. The officer who testified is the one who arrested you; right?
A. Excuse me?
Q. The officer who testified is the same officer who arrested you; right?
A. Yes.
Q. He arrested you in that alleyway; right?
A. Yes.
Q. It was around 3:00 o’clock in the afternoon on May 30th, 1980, when you were arrested; is that right? A. Yes.

Record at 49-50, 55-56.

Defendant’s trial counsel attempted to call Leroy Lawton to the stand. He was sworn and stated preliminarily that it was an incident occurring May 30,1980, about 3:00 o’clock in the afternoon which brought him to court. At this point, the assistant district attorney objected to Lawton’s testimony contending that it would be “in the nature of alibi,” and “I don’t have any notice of this witness from the defense.” Record at 34. The trial judge reserved a ruling on the question, heard the testimony of Lawton and then granted a motion to strike Lawton’s testimony.

THE COURT: I am saying he is an alibi witness. Somebody from your office just didn’t file it with the omnibus motion.
That is unfortunate, but the testimony of this witness clearly tries to establish an alibi.
I will grant the motion to strike the testimony.

Record at 43.

Pennsylvania Rule of Criminal Procedure 305 provides in pertinent part:

C. Disclosure by the Defendant
(1) Mandatory:
(a) Notice of Alibi Defense: A defendant who intends to offer the defense of alibi at trial shall, at the time required for filing the omnibus pretrial motion under Rule 306, file of record notice signed by the defendant or the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense. Such notice shall contain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of witnesses whom the defendant intends to call in support of such claim.
(d) Failure to File Notice: If the defendant fails to file and serve notice of alibi defense or insanity or mental infirmity defense as required by this rule, or omits any witness from such notice, the court at trial may exclude the testimony of any omitted witness, or may exclude entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the defendant, or may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require.

In Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), alibi was defined as follows:

We have previously stated:
“[ajlibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.”

Id., 490 Pa. at 631, 417 A.2d at 602.

There can be little question but that witness Lawton was an alibi witness whose name and address should have been supplied under the mandate of Pa.R.Crim.P. 305 C(l)(a). It was the clear position of appellant Bulard that he was not the operator of the stolen red Chevrolet Monte Carlo and that he was not the individual being chased by Officer Terry. It was the intention and desire of appellant Bulard to call as a witness, in support of his alibi defense, Lawton who in turn would testify that Bulard was not the person being chased by the police officer and that Bulard had been standing and talking to Lawton for some period of time while the crime was taking place elsewhere. As the Commonwealth-appellee argues in its brief, Lawton was “a textbook alibi witness.”

In the instant matter, Lawton’s testimony attempted to place the defendant outside of a bar at approximately the time the officer observed two individuals running from a car which was subsequently determined to be stolen. His testimony attempted to show that two individuals ran past the area where the witness and defendant were standing, followed seconds later by the arresting officer. If believed, this testimony would render it impossible for the defendant to be the individual whom the arresting officer saw run from the stolen car. Therefore, Lawton was a textbook alibi witness and within the meaning of Pa.R. Crim.P. 305 C(l)(a).

Brief for Appellee at 4-5.

The issue on the present appeal is whether or not trial counsel was ineffective for failing to provide the Commonwealth with proper written notice pursuant to Pa.R. Crim.P. 305 C(l)(a), which failure resulted in the exclusion of Lawton’s testimony from the defendant’s evidence. Indeed, following the trial court’s striking the testimony of Lawton, trial defense counsel stated on the record that “the attorney that handled this case from my office then certainly was ineffective.” We agree. We are able to determine that appellant’s claim of ineffectiveness of trial counsel is meritorious without the need to remand to the lower court for an evidentiary hearing. It is clear in this Commonwealth that trial counsel’s failure to present a possible witness is not per se ineffective assistance of counsel. Certainly counsel need not call every person mentioned by a defendant. Commonwealth v. Robinson, 232 Pa.Super. 328, 334 A.2d 687 (1975). The failure to call a possible witness will not be equated with a conclusion of ineffectiveness absent some positive demonstration that the testimony would have been helpful to the defense. Commonwealth v. Hawkins, 445 Pa. 279, 284 A.2d 730 (1971). Appellant must show that the testimony of Lawton would have added to his defense. Commonwealth v. Rainey, 282 Pa.Super. 15, 422 A.2d 652 (1980), and that he was willing and available to testify. Commonwealth v. Warner, 277 Pa.Super. 598, 419 A.2d 1312 (1980).

In the present factual situation, we have no doubt on any of these points. Lawton was available to testify, indeed he was in the courtroom, was sworn as a witness and presented his testimony under a reservation of ruling by the court. His testimony, if believed and if admitted into evidence, would have added to the defense of Bulard inasmuch as it substantiated Bulard’s own testimony as to his activities on the afternoon in question. Furthermore, trial defense counsel wanted to have the court hear the testimony of Lawton because he called Lawton as a witness for the defense. The testimony of Lawton was not considered by the court because defense trial counsel had failed to follow the mandate of Pa.R.Crim.P. 305 C(l)(a). There is no need to remand this case for an evidentiary hearing to find out why such a mandate was not properly pursued by defense counsel; there is no possible reason, beneficial to the appellant, why the mandate was not pursued. Accordingly, the judgment of sentence is vacated and the matter is remanded for a new trial.

      . Appellant is represented by Allen M. Tabas, Esquire, court appointed counsel, different from trial counsel. The statement of the questions involved is set forth as follows:
      1. Did the trial court err in regarding Leroy Lawton as an alibi witness for purposes of Pa.R.Crim.P. 305(C)(1)(A)?
      2. Even if Leroy Lawton was an alibi witness, did the trial court err in excluding his testimony, rather than granting a continuance as a remedy for trial counsel’s failure to file a written notice of alibi defense prior to trial?
      3. Was trial counsel ineffective in failing to file written notice of an alibi defense prior to trial?
      4. Did the trial court err in refusing to hold an evidentiary hearing on the ineffectiveness of trial counsel, where the issue of trial counsel’s effectiveness was raised in post-trial motions?
      Brief for Appellant at 4.

      . Lawton’s sworn testimony, which was stricken, was to the effect that he and Steven Bulard were standing together talking when two guys ran by; a few seconds later an officer appeared and told Bulard to get up against the wall.
      Q. When you say “Steve,” are you referring to the defendant? A. Yes.
      Q. Go ahead.
      A. So I had asked the cop, I said, ‘What you throwing him up against the wall for?’
      He said, ‘He just jumped out of a car.’
      Q. And what did you say?
      A. I said, ‘He was just on the corner.’
      So he told me he was taking him in for routine investigation, or something. He took him back and took him around the corner, and this lady came running out the beauty parlor, talking about, “That’s my car.”
      Q. And when you first saw Steve where was he standing? A. In the doorway of the bar.
      Q. And what was he doing there?
      A. Just hanging around, as far as I could see.
      Q. And was there anybody else around?
      A. There was a coupie other people in the doorway.
      Q. When you saw him what did you do?
      A. I called him.
      Q. When you called to him what did Steve do?
      A. He walked toward me.
      Q. And what happened next?
      A. Well, the guys came running around the corner.

        Q. When you say some guys came running around the comer, how many guys were there?
      A. Two.
      Q. And what corner did they come running around?
      A. They came from Ogontz. From where I am at, see, I am still in the driveway. They come running from Ogontz, running north. Q. What happened after—where did these two guys go that ran around the comer, if you know?
      A. Just after you get by the bar, like if you walk up the driveway, like let’s say twenty feet, there is another short driveway that leads out to Roselyn Street.
      Q. Is that where they went, up that short driveway?
      A. Yes.
      Q. Now, what happened next after they went up the short driveway?
      A. Well, around about a few seconds later the cop come around the corner and tells Steve to get up against the wall.
      Q. The corner that the cop came around, was that the same comer that the two men came around?
      A. Yes.
      MR. FLANNERY: Your Honor, it sounds like an alibi witness to me, after this testimony.
      I object.
      THE COURT: You may continue. I will rule on it later.
      Record at 38^41.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    451 A.2d 764
    COMMONWEALTH of Pennsylvania v. Jerry BRAXTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 25, 1982.
    Filed Oct. 15, 1982.

      John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

Jerry Braxton was tried without jury and convicted of robbery. On direct appeal, he contends that the Commonwealth failed to prove that he had been preliminarily arraigned within six hours of arrest and that, therefore, his post arrest confession should have been suppressed. There is no merit in this contention; and, therefore, the judgment of sentence will be affirmed.

The facts have been recited in the opinion of the Honorable Levy Anderson. “Shortly after midnight on April 22, 1979, a ‘grandpop’ squad of four police officers was on duty in the vicinity of 12th and Market Streets in Philadelphia, Pennsylvania. Officers Charles Miller, Paul Raley and Michael Turci were in street clothes. Officer Paul Domenic was dressed as an elderly man. He was wearing old clothes and a gray wig.

“Domenic proceeded to walk east on the north side of Market Street. The defendant was observed walking about fifteen to twenty feet behind him. Domenic entered the foyer of the Reading Terminal. The defendant followed, started up a flight of stairs and turned and looked at Domenic. Domenic started to walk down a flight of stairs leading to a subway concourse; the defendant followed.

“When he reached the concourse, Domenic walked fifteen yards east and stood near a wall. The defendant, who was carrying a vinyl bag, approached him and asked if he wanted to buy a coat. The defendant pulled a vest from his bag. Domenic said, ‘That is not a coat.’

“The defendant then pulled a pint-size liquor bottle from his bag, pushed Domenic against the wall, waived the bottle in Domenic’s face and said, ‘give me your money or I will bust your mother fucking head.’

“The defendant searched Domenic, while continuing to threaten him. The defendant took two one dollar bills wrapped around a bundle of theatrical money from Domenic’s pocked [sic]. The defendant then put the bottle back in the bag, shoved Domenic and started to run in the opposite direction.

“Domenic yelled, ‘give me back my money,’ which was a signal to the back-up officers to make an arrest.

“The defendant was met by Officer Mellor at the bottom of the steps leading from the Reading Terminal. Mellor, who had his service revolver drawn, ordered the defendant to ‘freeze’ and announced his identity. The defendant stopped, said, ‘Oh, shit,’ put down his bag and dropped the bundle of money. The defendant was frisked, handcuffed and transported to Central Detective Division, arriving at approximately 12:30 A.M. He was placed in a cell.

“At approximately 12:45 A.M. he was taken to a small room where he was interviewed by Detective John Monaghan. After getting identifying information from the defendant, Detective Monaghan informed him that he was being arrested for the robbery of the police decoy officer.

“Detective Monaghan warned the defendant of his constitutional rights, and asked the defendant a series of seven questions to determine if he understood those rights. The defendant indicated that he understood his rights, did not wish to remain silent, and was willing to answer questions without the presence of a lawyer.

“The defendant gave a brief statement in which he admitted robbing an old man in the subway near the Reading Terminal and taking a roll of one dollar bills.

“The statement was completed at 1:02 A.M. The defendant was given the statement to read, after which he signed it and wrote the date and time.

“Officers Domenic and Mellor testified that during their contact with the defendant, they smelled no alcohol on his breath and he did not appear to be intoxicated.

“Detective Monaghan also testified that the defendant did not appear to be under the influence of alcohol or drugs. All the police officers testified that the defendant was not struck or abused in any way.

“At 2:00 A.M. the defendant was transported to 8th and Race Streets for a preliminary arraignment.

“The defendant was arraigned at 3:09 A.M. on April 22, 1979.”

Appellant’s pre-trial motion to suppress his inculpatory statement was heard by the Honorable Angelo Guarino. At that hearing, Detective Monaghan testified that he had received a written confirmation that appellant was arraigned at 3:07 a.m. on April 22, 1979, approximately three hours after his arrest. The confirmation was in the form of a teletype from the Police Detention Unit, which contained the time of appellant’s preliminary arraignment. Appellant made no objection at the suppression hearing to the admission into evidence of the teletype sheet. Appellant argues on appeal, as he did in support of his post-verdict motions, that this confirmation was hearsay evidence and insufficient to sustain the pre-trial hearing court’s finding of a timely preliminary arraignment.

At the pre-trial hearing, however, there was no objection to this testimony or to the introduction of the teletype sheet. The law is clear that an extra-judicial statement, in the absence of objection, may be considered as substantive evidence of the facts contained therein. Commonwealth v. Ehly, 457 Pa. 225, 228-229, 319 A.2d 167, 169 (1974); Rockwell v. Stone, 404 Pa. 561, 573, 173 A.2d 48, 54 (1961); Commonwealth v. Boden, 399 Pa. 298, 308, 159 A.2d 894, 899 (1960), cert. denied, 364 U.S. 846, 81 S.Ct. 89, 5 L.Ed.2d 70 (1960); Commonwealth v. Alston, 269 Pa.Super. 573, 577, 410 A.2d 849, 852 (1979); Commonwealth v. Moore, 228 Pa.Super. 49, 52, 323 A.2d 25, 26 (1974); Johnson v. Unemployment Compensation Board of Review, 30 Pa.Cmwlth. 14, 17, 372 A.2d 957, 959 (1977). See also: Anno., Consideration, in Determining Facts, of Inadmissible Hearsay Evidence Introduced Without Objection, 79 A.L.R.2d 890 (1961).

The pre-trial hearing court found, therefore, that appellant had been timely arraigned and refused to suppress his statement. That determination was “final, conclusive and binding at trial” in the absence of evidence not theretofore available. Pa.R.Crim.P. 323(j). Accord: Commonwealth v. McIntyre, 451 Pa. 42, 49, 301 A.2d 832, 836 (1973); Commonwealth v. Vassiljev, 218 Pa.Super. 215, 218, 275 A.2d 852, 853 (1971).

Nevertheless, the Commonwealth’s evidence at trial also demonstrated that appellant’s preliminary arraignment had been held within six hours of his arrest. The official court records, introduced as evidence at trial, recite that appellant was arraigned before Judge McCabe at 3:09 on April 22, 1979. Appellant correctly observes that the recorded time contains no designation that the time was A.M. or P.M. However, an assistant court administrator testified from court assignment sheets that on April 22, 1979, Judge McCabe sat from midnight until 8:00 o’clock, A.M.

The court assignment sheets were qualified as business records and were admissible to show the hours during which Judge McCabe sat on April 22, 1979. See: 42 Pa.C.S. § 6108(b); In Re Estate of Indyk, 488 Pa. 567, 572-573, 413 A.2d 371, 373 (1979); Commonwealth v. Graver, 461 Pa. 131, 138-139, 334 A.2d 667, 670-671 (1975); Commonwealth v. Visconto, 301 Pa.Super. 543, 549-550, 448 A.2d 41, 44-45 (1982); Commonwealth v. Kelly, 245 Pa.Super. 351, 362-363, 369 A.2d 438, 444 (1976), aff’d, 484 Pa. 527, 399 A.2d 1061 (1979), cert. denied and appeal dismissed, 444 U.S. 947, 100 S.Ct. 417, 62 L.Ed.2d 317 (1979). They had been made and kept by the court administrator’s office in the regular course of business. Contrary to appellant’s argument, the production of the person or persons preparing the same was not essential to their admissibility. See: In Re Estate of Indyk, supra 488 Pa. at 573, 413 A.2d at 373-374; Commonwealth v. Graver, supra 461 Pa. at 138-140, 334 A.2d at 671-672; Commonwealth v. Walker, 275 Pa.Super. 311, 316-317, 418 A.2d 737, 740 (1980), transferred to 491 Pa. 351, 421 A.2d 172 (1980); Campbell v. Royal Indemnity Co. of New York, 256 Pa.Super. 312, 320, 389 A.2d 1139, 1143-1144 (1978); Commonwealth v. Kelly, supra 245 Pa.Super. at 362-363, 369 A.2d at 444.

Moreover, as we have observed, the timeliness of appellant’s preliminary arraignment for purposes of determining the suppressibility of his post-arrest statement had been determined in pre-trial hearings, and it was not necessary that the same facts be proved again at trial.

The judgment of sentence is affirmed.


author: McEWEN, Judge: LIPEZ, Judge,

text:
    451 A.2d 767
    COMMONWEALTH of Pennsylvania, Appellant, v. Gerald PARKER a/k/a Edward Alston.
    Superior Court of Pennsylvania.
    Argued June 23, 1982.
    Filed Oct. 15, 1982.

      Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Andrew G. Gay, Philadelphia, for appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   McEWEN, Judge:

We here consider an appeal by the Commonwealth from a sua sponte post-verdict order of the Common Pleas Court which purported to “change” verdicts of guilty entered by the court, following a non-jury trial, to verdicts of not guilty. The post-verdict order amending the verdicts was entered some two weeks after the original verdicts had been entered and recorded. We are compelled to vacate the order amending the verdicts and reinstate the original guilty verdicts.

Appellee was found guilty of robbery and possession of an instrument of crime after a non-jury trial. The Commonwealth, at the pre-trial suppression hearing held on the motion to suppress the identification, had established the victim to be unavailable, pursuant to 42 Pa.C.S.A. § 5917, and read his preliminary hearing testimony into the record of the suppression hearing. The court immediately denied the motion to suppress the former testimony of the victim and, then, proceeded with the non-jury trial of appellant. The preliminary hearing testimony of the victim was determined to be admissible and was incorporated into the notes of trial testimony. That testimony established that appellee had come upon the victim from behind on a Philadelphia street and placed either a gun or some other instrument which “clicked” at the back of the victim’s head and demanded money. The robber relieved him of approximately $190.00 in five and ten dollar denominations and then told the victim to remove his shoes which were subsequently thrown down onto nearby railroad tracks. When the robber then fled, the victim called the police to report the robbery and described the assailant as a negro male, approximately thirty years old, five feet eight inches tall and wearing a brown coat, brown pants, a goatee and a mustache. The police officers, in a short while, returned to the scene with appellee who was identified by the victim as the man who robbed him. Although a sum of $51.65 was found on his person, appellee was not found to be in possession of any weapon. The arresting officer testified that the victim identified appellant as the man who robbed him.

Appellee testified at trial that he was wearing a maroon suede jacket and blue pants on the night of the robbery and stated that he did not have a beard although he had not shaved in two days. He denied committing any robbery. He further testified:

Q. Did the victim say you were the man who robbed him?
A. Not at the scene of the crime. He said—when we got, when they took me to the 25th Detective Bureau, and then he came there, and then he said, they asked him, he was standing beside me and they said, “Is this the guy that robbed you?” He looked at me real good. At first he said, “I don’t know.” And the Detective kept on pressuring and pressuring and he said, “I think so. Look, I just want my money, that is all.” (N.T. p. 64).

Immediately following the close of the testimony of appellant, the court found appellant guilty of robbery and possession of an instrument of crime and entered an order so stating on August 6, 1981. Although the court informed appellee of his post-verdict rights in accordance with Pa.R. Crim.P. 1123, no post-verdict motions were ever filed. Thereafter, on August 20, 1981 four days past the deadline for filing post-verdict motions, the court entered the following order:

AND NOW, this 20th day of August, 1981, upon reconsideration of the facts in the above captioned matter, it is hereby Ordered and Decreed, pursuant to 42 Pa.C.S.A. § 5505, that the verdict of guilty entered on August 6, 1981, shall be changed to a verdict of Not Guilty and the said Not Guilty verdict entered, (emphasis supplied).

Preliminarily, the Commonwealth contends that it may properly appeal from the challenged post-verdict order which changed the verdicts of guilty to not guilty since an appellate reversal of that order would result only in the reinstatement of the original verdicts and would not intrude upon the double jeopardy rights of appellee.

It is clear that the Commonwealth may properly appeal the order in question since it (1) raises a clear question of law—the propriety and efficacy of the August 20 order which purported to change the original guilty verdicts entered by the trial court following the non-jury trial of appellee to verdicts of not guilty—and (2) effectively discharges the appellee and terminates the prosecution. See Borough of West Chester v. Lal, 493 Pa. 387, 391 n. 4, 426 A.2d 603, 604 n. 4 (1981); Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961); Commonwealth v. Davis, 247 Pa. Super. 450, 372 A.2d 912 (1977).

The entry by a trial court of a verdict of acquittal in a criminal proceeding usually cannot be reviewed without placing the defendant twice in jeopardy in violation of the double jeopardy clause. Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43, 53 (1978); Borough of West Chester v. Lai, supra; Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1980); Commonwealth v. Lodge No. 148, Loyal Order of Moose, 188 Pa.Super. 531, 149 A.2d 565 (1959). The unique procedural aspects of this case, however, demonstrate that principle is not here applicable. The challenged order is not truly a verdict of acquittal, but an order purporting to change already recorded and docketed verdicts of guilty, entered by a previous order, to verdicts of not guilty. Since we limit our review only to the procedural propriety of the subsequent order it is clear that appellee will not be twice placed in jeopardy by our review. Vacation of the challenged order necessarily has the effect of reinstating the original verdicts of guilty. See, e.g., United States v. Kopp, 429 U.S. 121, 97 S.Ct. 400, 50 L.Ed.2d 336 (1976) (government could properly appeal from an order dismissing an indictment which was entered after the defendant was found guilty in a non-jury trial but prior to sentencing). Accord, United States v. Morrison, 429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1 (1976). In Morrison, supra, the Supreme Court found that since success on such an appeal would result in reinstatement of a general finding of guilty rather than in further factual proceedings relating to guilt or innocence, the appeal was not barred by double jeopardy. Accord, United States v. Rose, 429 U.S. 5, 97 S.Ct. 26, 50 L.Ed.2d 5 (1976); United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); See also United States v. Dixon, 658 F.2d 181, 187-88, N. 12 at 188 (3rd Cir.1981); United States v. Hecht, 638 F.2d 651 (3rd Cir.1981). Therefore, we find that the appeal of the Commonwealth is properly before the court.

The Commonwealth contends that the trial judge erred in reconsidering the facts and changing the verdict. The Commonwealth argues that a trial judge may not use “reconsideration” pursuant to 42 Pa.C.S.A. § 5505 to subvert the principle that a guilty verdict cannot be changed post-verdict on the basis of a factual redetermination. We agree.

Although we have found no Pennsylvania decision which discusses a sua sponte reconsideration and change of verdicts by the trial court, we believe the case is analogous to Commonwealth v. Brown, 192 Pa.Super. 498, 162 A.2d 13 (1960) and Commonwealth v. Christian, 215 Pa.Super. 8, 257 A.2d 83 (1969). In Brown, supra, the trial court found the defendant guilty of larceny by bailee following a non-jury trial. In response to a motion in arrest of judgment, the trial court entered a finding of not guilty from which the Commonwealth appealed. There we held that “the hearing judge had no right, after a finding of guilty, to change his mind over a month later and enter a finding of not guilty ...” Id, 192 Pa.Super. at 501, 162 A.2d at 14. We stated that the verdict rendered by the trial judge after a non-jury trial is a general verdict and, after recording such a verdict, the authority of the trial judge over it would be the same as in the case of verdict by a jury, that is, “relating to motions in arrest of judgment, or the granting of a new trial.” Id, 192 Pa.Super. at 501, 502 n. 1, 162 A.2d at 14 n. 1. We concluded that “in view of [the] expressed purpose [of the trial judge], we shall do what he should have done under those circumstances and grant a new trial.” Id, 192 Pa.Super. at 502, 162 A.2d at 14.

Commonwealth v. Christian, supra, found the Commonwealth appealing an order of the Common Pleas Court “by virtue of which a prior guilty verdict was withdrawn and a finding of not guilty entered.” Id 215 Pa.Super. at 10, 257 A.2d at 84. We there stated that the irregular procedure revealed by the record made appellate review mandatory. In that case, following a non-jury trial, the trial judge found the evidence was sufficient to convict the defendant of unlawfully carrying a firearm without a license and entered a verdict of guilty. Some six months later the defense attorney filed a belated petition for motion for new trial and in arrest of judgment nunc pro tunc. Subsequently, a hearing was held at which only the judge and the defense attorney were present, and, thereafter, the trial court filed an opinion which indicated that defense counsel had filed motions for new trial, that a new trial had been granted and that, on the basis of the record, the court had found defendant not guilty. On appeal, we observed that there was no evidence in the record of the filing of post-verdict motions or of a second trial. The Commonwealth there argued that where a judge sitting without a jury has found a defendant guilty at the end of a trial, he may not seven months later change his verdict to one of not guilty, and relied principally upon Commonwealth v. Brown, supra. We held that the finding of not guilty entered seven months after the original verdict of guilty was “a complete nullity,” and reversed the order of the trial court and granted a new trial. Id. 215 Pa.Super. at 13, 257 A.2d at 85-86.

While we have found no Pennsylvania case which discusses a sua sponte reconsideration of the facts and change of verdicts by the trial court, it is evident that the reconsideration procedure authorized by 42 Pa.C.S.A. § 5505 does not extend to the trial court the authority to change a previously recorded verdict of guilty to one of not guilty. The statute authorizes reconsideration “[ejxeept as otherwise provided or prescribed by law ...” Since the decisional law previously set forth quite clearly provides otherwise, § 5505 does not provide such authority as to enable the Common Pleas Court to change the original verdicts of guilty to not guilty.

A trial judge has no more authority over a verdict in a non-jury 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; 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. Here, however, it is clear that the trial judge engaged in a re-evaluation of the evidence produced at trial. Indeed, the opinion of the court states “the court sua sponte re-considered the facts herein and determined inasmuch as it entertained reasonable doubt as to the defendant’s guilt, a not guilty verdict was justified.” (Opinion at p. 1).

Since the trial court exceeded its post-verdict authority, we must vacate the order of August 20, 1981 which changed the verdicts of guilty entered August 6, 1981 to verdicts of not guilty and thereby reinstate the verdicts of guilty entered by the order dated August 6, 1981. We also remand for filing of post-verdict motions nunc pro tunc.

Order vacated, verdicts of guilty reinstated and case remanded for filing of post-verdict motions nunc pro tunc.

LIPEZ, J., files a concurring opinion.

LIPEZ, Judge,

concurring:

I agree with the majority that section 5505 of the Judicial Code effected no change in the law so as to authorize a trial court to change a previously entered guilty verdict to a not guilty one. As cogently stated by Judge Montgomery:

In a criminal case tried without a jury, . . . the verdict rendered by the trial judge is a general verdict “. . . as if the defendant had put himself upon the inquest or country for trial, and his cause were being tried before a jury ...” Therefore, after recording such a verdict, the authority of the trial judge over it would be the same as in the case of a verdict by a jury . . .

Commonwealth v. Brown, 192 Pa.Super.Ct. 498, 501-02 n. 1, 162 A.2d 13, 14 n. 1 (1960); accord, Commonwealth v. Christian, 215 Pa.Super.Ct. 8, 13-14, 257 A.2d 83, 85-86 (1969). However, rather than basing this conclusion on the majority theory that the prior case law falls within section 5505’s introductory clause (“Except as otherwise provided or prescribed by law”), I would simply hold that section 5505 applies only to final orders, as the Supreme Court held with respect to section 5505’s predecessor statute, the Act of June 1, 1959, P.L. 342, No. 70, § 1, 12 P.S. § 1032 (Supp. 1978-1979). Commonwealth v. Bowden, 456 Pa. 278, 282 & n. 3, 309 A.2d 714, 717 & n. 3 (1972).

Section 5505 substantially reenacts 12 P.S. § 1032, which was repealed when section 5505 went into effect on June 27, 1978. See 42 Pa.C.S. § 5505, Official Source Note; Commonwealth v. Demby, 496 Pa. 509, 512 n. 6, 437 A.2d 1156, 1158 n. 6 (1981). The Supreme Court’s reasoning in holding that 12 P.S. § 1032 applied only to final orders, Commonwealth v. Bowden, supra, is equally applicable to section 5505. Thus section 5505 does not apply to verdicts, which are certainly not final orders. Since it is wholly inapplicable to verdicts, section 5505 made no change in the law determining a trial judge’s authority over his own verdict. That authority remains as it was before passage of section 5505, i.e., once a nonjury verdict is entered, it can only be overturned for the same reasons as a jury verdict. Commonwealth v. Brown, supra; see Commonwealth v. Nelson, 245 Pa.Super.Ct. 33, 38-39, 369 A.2d 279, 282 (1976) (concurring opinion by Spaeth, J.). Consequently, the trial judge here had no authority to change his verdict of “guilty” to “not guilty”.

      . It is clear that our vacation of the challenged order and reinstatement of the original verdicts of guilty shall not preclude the Common Pleas Court on remand from ordering appropriate post-verdict relief.

      . Because a motion in arrest of judgment focuses solely upon the legal sufficiency of the evidence to support a conviction, an assertion that a verdict is contrary to the weight of the evidence is not a proper consideration in reviewing such a motion. Commonwealth v. Meadows, supra. However, a trial court may grant a criminal defendant a new trial on the basis of such a contention, even where the evidence is legally sufficient to sustain a guilty verdict. Commonwealth v. Meadows, supra; Commonwealth v. Hayes, 205 Pa.Super. 338, 209 A.2d 38 (1965); Commonwealth v. Harbaugh, 197 Pa.Super. 587, 179 A.2d 656 (1962); Commonwealth v. Brown, 192 Pa.Super. 498, 162 A.2d 13 (1960); Commonwealth v. Coyle, 190 Pa.Super. 509, 154 A.2d 412 (1959), allocatur refused; Commonwealth v. Jenkins, 185 Pa.Super. 577, 138 A.2d 203 (1958). Indeed, it is well established that a court may grant a new trial of its own motion, in the absence of a motion for a new trial if sufficient cause exists. Commonwealth v. Dennison, 441 Pa. 334, 272 A.2d 180 (1971); Commonwealth ex rel. Wallace v. Burke, 169 Pa.Super. 633, 84 A.2d 254 (1951).

      . While we are not able to determine from the record why defendant did not file post-verdict motions in the instant case, it may well be that counsel anticipated the action of the court in changing the verdict and for that reason did not file post-trial motions. Therefore, in the interest of justice, and due to our inability to ascertain the basis (e.g. sufficiency of the evidence and/or weight of the evidence) upon which the trial judge decided to attempt to amend the verdicts of guilty to not guilty, we remand to permit appellant the opportunity to file post-verdict motions nunc pro tunc and to allow the trial court to rule upon these motions subject, of course, to the traditional post-verdict standards of review herein set forth.

      . “Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.” 42 Pa.C.S. § 5505.

      . It is anomalous to hold that 42 Pa.C.S. § 5505 is consistent with Commonwealth v. Christian, supra, only because section 5505 contains the introductory clause, when Christian must be consistent with section 5505’s predecessor statute, 12 P.S. § 1032 (Supp. 1978-1979), which was in effect at the time of the lower court proceedings in Christian, and which contained no similar introductory clause. See note 3, infra.

      . “In any civil, criminal or equitable proceeding in which the court has heretofore been vested with the power, jurisdiction and authority to alter, modify, suspend, reinstate, terminate, amend or rescind, any order, decree, judgment or sentence only during the term of court in which the order, decree, judgment or sentence, was entered of record, the court, in addition to such power, jurisdiction and authority, shall hereafter have the same power, jurisdiction and authority to alter, modify, suspend, reinstate, terminate, amend or rescind, the order, decree, judgment or sentence for a period of thirty days subsequent to the date of entering of record the order, decree, judgment or sentence, in any instance where the term of court shall terminate prior to such thirty day period: Provided, That all parties in interest, including the district attorney in criminal cases, are notified in advance of such proposed alteration, modification, suspension, reinstatement, termination, amendment or rescission.” 12 P.S. § 1032 (Supp. 1978-1979) (repealed).

      . Commonwealth v. Demby, 496 Pa. 509, 512 & nn. 5-6, 437 A.2d 1156, 1158 & nn. 5-6 (1981) held that a trial court could reconsider an order denying an extension of time under Rule of Criminal Procedure 1100, because the court had statutory power to reconsider under 12 P.S. § 1032, as well as inherent power to do so, relying on Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970). Because an order denying a Rule 1100 extension is plainly interlocutory, our Supreme Court in Demby must have been unaware of its own previous holding in Commonwealth v. Bowden, supra, that 12 P.S. § 1032 applies only to final orders. The Demby opinion’s reliance on Commonwealth v. Cole, supra, also seems incorrect, since Cole merely holds that courts have inherent authority to correct errors which are plain on the face of the order itself, and no such error was involved in Demby. Nevertheless, the result in Demby is correct, because a court has power to reconsider its interlocutory orders generally. See note 5, infra. The effect of interlocutory orders being outside the scope of 12 P.S. § 1032 (and its successor, 42 Pa.C.S. § 5505) is not to deprive the court of power to reconsider, but simply means such orders are not subject to the 30-day limitation. As stated in Commonwealth v. Bowden, supra, 456 Pa. at 282 n. 3, 309 A.2d at 717 n. 3: “It must be remembered judgment of sentence had not been passed in the instant case, thus, the purpose of the statute, finality, Commonwealth v. Mackley, 380 Pa. 70, 110 A.2d 172 (1955), and barring parties from extending the appeal period, Philadelphia Suburban Transportation Co. v. DiFrancesco, 362 Pa. 326, 66 A.2d 254 (1949), are not affected by allowing a change of an interlocutory order.”

      . It is doubtful that a nonjury verdict is even an order. The Judicial Code’s general definition (“ ‘Order.’ Includes judgment, decision, decree, sentence and adjudication.” 42 Pa.C.S. § 102) is not helpful in ascertaining whether a verdict is ever an “order” for any purpose under the Code. Fortunately, we need not make this determination here, because even if entry of a nonjury verdict constituted an order, it would certainly not be a final one. See, e.g. Commonwealth v. Nugent, 291 Pa.Super.Ct. 421, 435 A.2d 1298 (1981) (order which is only a “determination of guilt”, the equivalent of a nonjury verdict, is not a final order). This is sufficient to remove verdicts from the purview of section 5505, and therefore it is unnecessary to draw any distinction here as to whether a verdict for other purposes might be classified as either an interlocutory order or no order at all.
      The distinction can be critical in other contexts, however, because the fact that section 5505 is inapplicable merely means that the court’s power to reconsider is determined by law other than section 5505, and that other law differs with respect to interlocutory orders other than verdicts. Thus unlike verdicts, which cannot be reconsidered at all once entered, interlocutory orders generally not only may be reconsidered, but reconsideration may also take place more than 30 days after entry, so long as no appeal from the order has been taken. Scharfman v. Philadelphia Transportation Company, 234 Pa.Super.Ct. 563, 569, 340 A.2d 539, 542 (1975); see Scoumiou v. United States Steel Corporation, 293 Pa.Super.Ct. 254, 256 n. 2, 438 A.2d 981, 982 n. 2 (1981) (dictum).
      The reason Scharfman and Scoumiou permit reconsideration beyond the time limits of 12 P.S. § 1032 and 42 Pa.C.S. § 5505, without mentioning those sections, is that sections 1032 and 5505 apply only to final orders, which I believe is the true basis for our decision in this case. Scharfman and Scoumiou do say that the court may not reconsider even an interlocutory order if an appeal has been taken, and the same limitation is prescribed by section 5505. In the case of interlocutory orders, however, this limitation does not derive from section 5505, but Rule of Appellate Procedure 1701(a) (and the case law which Rule 1701 codified when it became effective on July 1, 1976). With the exceptions specified in subsections (b) and (c), Rule 1701(a) operates to deprive the lower court of jurisdiction whenever an appeal is taken, whether it is from a final order, an appealable interlocutory order, or even a nonappealable interlocutory order. See, e.g., Gordon v. Gordon, 293 Pa.Super.Ct. 491, 497-99, 439 A.2d 683, 686 (1981), aff’d per curiam, 498 Pa. 570, 449 A.2d 1378 (1982).


author: JOHNSON, Judge:

text:
    451 A.2d 773
    COMMONWEALTH of Pennsylvania v. Paul T. McGAVIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1982.
    Filed Oct. 15, 1982.

      Barry M. Miller, Norristown, for appellant.
    Judd B. Fitze, District Attorney, Tunkhannock, for Commonwealth, appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   JOHNSON, Judge:

Appellant, Paul T. McGavin, was convicted of riot and simple assault following trial by jury. He brings this appeal from judgment of sentence on these convictions. For the reasons set forth herein, we reverse the conviction of riot, affirm the conviction on simple assault, and remand for resentencing.

The following facts were brought out at trial. On the evening of July 7, 1980, Constable Frank Stephens, Sr. was summoned from his home by two private citizens, Charles McCarthy and Lancer McMicken [hereinafter McCarthy and McMicken]. Constable Stephens accompanied McCarthy, at his request, to the location of a nearby Dodge automobile to record its license plate numbers. McCarthy suspected that the automobile had been involved earlier that evening in a rock and bottle throwing incident. Upon securing the license plate numbers, McCarthy and Constable Stephens turned to walk back toward Constable Stephens’ home when they were confronted by appellant. Appellant questioned Constable Stephens’ authority to record the license plate numbers of the automobile. Appellant was joined by Timothy Blaisure and Daniel McGavin. Shortly thereafter, an altercation ensued during which Constable Stephens sustained injuries.

After verdict and denial of post-verdict motions, appellant was sentenced to imprisonment for a term of not less than six months nor more than twenty-three and one-half months. Sentence was imposed solely on the riot conviction because the trial court improperly merged the simple assault offense into the riot offense.

In his brief, appellant raised five issues for our consideration. However, we will consider only two of them because the others were not properly preserved for our review. The issues remaining for our consideration are: (1) whether or not Appellant’s convictions were contrary to the evidence, and against the weight of the evidence, and (2) whether the Commonwealth’s case is legally sufficient to support the conviction on the offense of riot. In reviewing the first issue, we will not discuss the sufficiency of the evidence to support the riot conviction since we reverse that conviction on other grounds, infra.

We now turn to the task of examining the sufficiency of the evidence to support the simple assault conviction. In this regard, appellant argues that the Commonwealth failed to present any evidence to show that appellant assaulted Constable Stephens.

After having carefully reviewed the record, and viewing the evidence therein in the light most favorable to the Commonwealth, Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973), we find no merit in appellant’s contention. Two of the Commonwealth’s witnesses testified that the appellant physically assailed Constable Stephens. Record at 19 and 77. Appellant’s testimony contradicts the testimony of the Commonwealth’s witnesses. Record at 248-49, 253, and 254. From this contradictory testimony, a question of credibility arose. The resolution of issues of credibility is the jury’s role. We will not disturb the jury’s determination of these issues of credibility unless the jury’s findings lack support in the record. See Commonwealth v. Ridall, 280 Pa.Super. 316, 322, 421 A.2d 740, 743 (1980). Since the record is adequate to support the jury’s findings, we affirm the simple assault conviction.

Next, we consider whether Constable Stephens’ action of recording the license plate number is legally sufficient proof of “official action.” 18 Pa.C.S.A. § 5501(2). In considering this question, we are guided by Commonwealth v. Harrison, 290 Pa.Super. 389, 434 A.2d 808 (1981), which states:

“[T]he sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in light most favorable to the Commonwealth, and it is entitled to all reasonable inferences arising therefrom. The effect ... is to admit all the facts which the Commonwealth’s evidence tends to prove.” (Citations omitted.)

Id., 290 Pa.Super. at 391-92, 434 A.2d at 809. Upon consideration of the evidence, we cannot conclude that the Commonwealth has proved facts sufficient to constitute official action.

In pertinent part, the offense of riot reads as follows: § 5501 RIOT
A person is guilty of riot, a felony of the third degree, if he participates with two or more others in a course of disorderly conduct:
(2) with the intent to prevent or coerce official action.

The text of this provision was derived from Model Penal Code § 250.1(b) (1980). It was designed to reach “the classic case of mob agitation against the lawful workings of the government.” Id. at Comment § 250.(l)(b). In the comment, the drafters indicate that several other states, though not having adopted the formulation set forth in § 250.1(b), still reach the same result by reaching conduct that “substantially obstructs law enforcement or other government function.” Id. From our review of the record, we conclude that Constable Stephens’ actions are not the type of actions contemplated by the drafters of the Model Penal Code when they describe the operation of § 250.1(b). We do not consider his actions to fall within the ambit of a reasonable interpretation of “official action.”

At trial, Constable Stephens testified that he accompanied McCarthy merely to record the license plate numbers of the suspect automobile, and forward them on to the Chief of Police the next morning. He was not investigating the ongoing occurrence of a breach of the peace. The incidents related to him when he was summoned by the two private citizens had occurred earlier that evening. Constable Stephens could not have made an arrest based on these incidents because he had no valid arrest warrant nor did the events constituting a breach of the peace occur within his view. See 13 P.S. § 45. There is no evidence in the record that either of the private citizens informed Constable Stephens that a possible breach of the peace was occurring so that his actions could thereby be characterized as an investigation of whether or not a breach of the peace was then in progress.

What Constable Stephens did was to assist two private citizens in obtaining the license plate numbers of a vehicle they suspected of being involved in the earlier rock and bottle throwing incident. Constable Stephens did what either of the two private citizens could have done themselves. Without more, we are not persuaded that a constable’s action of merely recording license plate numbers with the intent to deliver them to the chief of police of the borough is sufficient to constitute “official action” within the meaning of the riot offense. These actions were not the “lawful workings of the government,” for they were not done pursuant to any of the constable’s statutory authority. None of these acts required an official status in order to perform them. We find nothing in the record that distinguishes them from the actions that any private citizen is at liberty to take.

Our conclusion is not altered by Constable Stephens’ verbal assertion that he, in his capacity as constable, had the authority to take these actions. The mere assertion of authority to act is not sufficient to somehow transform these common everyday liberties into official action.

Accordingly, we hold as a matter of law that Constable Stephens was not engaged in official action at any time material to this charge.

For the foregoing reasons, we therefore affirm appellant’s conviction of simple assault and reverse his conviction of riot. Since sentence was imposed only upon the riot conviction, we hereby vacate that sentence and remand to the trial court for resentencing on the simple assault conviction.

      . 18 Pa.C.S.A. § 5501(2).

      . 18 Pa.C.S.A. § 2701(a)(1).

      . Similar charges were filed against these two individuals, but they are not parties to this appeal.

      . Because errors in sentencing are never waived for failure to be raised below, Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1979), we take this opportunity to note that these offenses were improperly merged. There are two requirements to be satisfied before merger may occur. First, both crimes must arise from the same transaction. Commonwealth v. Belgrave, 258 Pa.Super, 40, 48, 391 A.2d 662, 666 (1978). Second, under the unique facts of the case, one crime must necessarily involve the other crime. Id For one crime to necessarily involve the other, the essential elements of one crime must be the essential elements of the other crime. Id. The prima facie elements of simple assault require proof that appellant attempted to cause or intentionally, knowingly, or recklessly caused bodily injury to another. See 18 Pa.C.S.A. § 2701(a)(1). Riot requires proof that appellant participated with two or more others in a course of disorderly conduct with the intention to prevent or coerce official action. See 18 Pa.C.S.A. § 5501(2). Presumably, the trial court judge predicated his decision to merge these offenses upon the belief that the disorderly conduct element of riot was established by proof of conduct that also established the simple assault offense. However, mere proof of conduct that establishes the crime of simple assault is insufficient to establish any element of the offense of riot. The essence of the offense of riot is group action. Simply because appellant committed simple assault as a successive step to possibly completing the offense of riot does not require that these offenses merge. Commonwealth ex rel. Moszynski v. Ashe, 343 Pa. 102, 104, 105, 21 A.2d 920, 921 (1941). Proof that Appellant committed simple assault does not establish for purposes of the riot offense that two or more individuals engaged in a course of disorderly conduct. Upon closely examining the essential elements of both of these offenses, we must conclude that they do not coincide at all. See Commonwealth v. Kull, 267 Pa.Super. 55, 59, 405 A.2d 1300, 1302 (1979); Commonwealth v. Grassmyer, 266 Pa.Super. 11, 15, 402 A.2d 1052, 1054 (1979). Thus, the crime of riot does not necessarily include the crime of simple assault. As was stated in Commonwealth ex rel. Moszcynski v. Ashe, supra, sometimes a single act or transaction can give rise to two separate crimes. We believe that is the case here.

      . Also, appellant asserted that the trial court erred when it: (1) restricted the method of use of a witness’ prior inconsistent statement, (2) prevented co-defendants’ counsel from examining a witness after he had rested his case, and (3) prevented co-defendants’ counsel from arguing the law to the jury during his closing argument. These three issues were waived below for lack of contemporaneous objections on the record. Commonwealth v. Blair, 460 Pa. 31, 36, 331 A.2d 213, 215 N.3 (1975); Commonwealth v. Marlin, 452 Pa. 380, 382, 305 A.2d 14, 16 (1973).

      . In relevant part, 13 P.S. § 45 states that, “constables ... shall and may, without warrant and upon view, arrest and commit to hearing any and all persons guilty of a breach of the peace ..., riotous or disorderly conduct ... for the violation of which a fine or penalty is imposed.”


author: VAN der VOORT, Judge:

text:
    451 A.2d 777
    Dora QUARATO and John Quarato v. FACELIFTERS, LTD., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1981.
    Filed Oct. 15, 1982.
    John M. Means, Pittsburgh, for appellant.
    Donald P. Tarosky, Greensburg, for appellees.

      Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

On June 30, 1980, a Justice of the Peace entered a judgment in assumpsit for $872.50, plus costs, in favor of plaintiffs-appellees, Quarato and against defendant-appellant, Facelifters, Ltd. Facelifters appealed to the Westmoreland County Court of Common Pleas on July 11, 1980. On July 14, 1980, Notice of Appeal and a Rule to File a Complaint were filed with the Prothonotary, together with an affidavit by appellant’s counsel stating that he had served appellees with the Notice of the Appeal and the Rule to File a Complaint by certified or registered mail, “sender’s receipt attached hereto”. In fact, no sender’s receipt was attached to the Notice of Appeal and the Rule to File a Complaint.

The receipts were attached to a praecipe for judgment for failure to file a complaint, filed by Facelifters, on September 3, 1980. On September 11,1980, appellees filed a praecipe to strike the initial appeal because of appellant’s failure to comply with Rule 1005(b) of the Rules of Civil Procedure for Justices of the Peace. Appellant’s counsel filed a Motion to Reinstate Appeal on September 17, 1980 averring (1) that the appellant had complied with the rules, and (2) that the striking of the appeal after entry of the non-pros was invalid. Appellees filed an answer to this motion. The court sitting en banc heard arguments, and on March 19, 1981, dismissed the Motion to Reinstate Appeal. By praecipe the same day judgment was entered on the court’s order.

Judge Marker’s opinion states his belief that the court is bound to dismiss the Motion to Reinstate the Appeal because of appellant’s failure to comply with Rule 1005(b) and Rule 1081, Pennsylvania Rule of Civil Procedure for Justices of the Peace. He relies on a similar ruling by Judge Klein in Voynik v. Davidson, 34 Beaver 98, 69 D. & C. 2d 267 (1975). Both Judges Klein and Marker concede that “the result appears to be harsh” but feel duty bound to enforce a rule of the Supreme Court.

Rule 1005(b) Pa.R.C.P.J.P. required appellant to file “proof of service” of the notice of appeal and of the rule within five days after the filing of the notice of appeal. Rule 1001 defines “proof of service” as: “a sworn written statement that service was made by personal service or by certified or registered mail, with the sender’s receipt for certified or registered mail attached thereto if service was made by mail.” (Emphasis supplied) Technically counsel’s affidavit did not fully comply with Rule 1001 as the sender’s receipt was not attached.

There is no serious question that the appellees received notice that the appeal had been taken. In addition, there are in the record copies of two receipts dated July 15, 1980, signed by Dora Quarato, presumably evidencing receipt of (a) the Notice of Appeal and (b) the Rule to File a Complaint. These receipts were attached to a praecipe for judgment filed September 3, 1980, by appellant’s counsel, for failure of Quarato to file a complaint.

Appellant points out that Rule 126, Pennsylvania Rules of Civil Procedure states that these rules are to be construed liberally “to secure the just, speedy and inexpensive determination” of cases, and that the court “may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” The Commonwealth Court in Americans Be Independent v. Commonwealth of Pennsylvania, 14 Pa. Commonwealth 179, 321 A.2d 721 (1974) overlooked a failure to file an affidavit of service of process within the prescribed time, where the other side had in fact received the required notice. Our Supreme Court has in Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280 (1978) endorsed and explained the policy of liberal interpretation expressed in Rule 126. Appellant further refers us to Hyde v. Crigler, 10 D. & C. 3d 769 (1979) in which the court ordered an appeal reinstated where the proof of service was not filed within five days, but timely notice had in fact been received by the appellees in that case, as in our present case.

As appellees did receive notice of the appeal and rule to file a complaint, we believe justice will be served, and the principles enunciated in Rule 126 will be correctly applied if the appeal is reinstated. Therefore the order dismissing the motion to reinstate the appeal is vacated; the appeal is reinstated; the default judgment is opened; and appellees shall have twenty (20) days to file a complaint.

Order reversed and case is remanded for further proceedings not inconsistent with this Opinion. We do not retain jurisdiction.

      . Judge Marker’s opinion states that “this opinion shall not restrict the appellant ... in seeking relief under ... Rule 1006”, presumably a reference to the “upon good cause shown” provision of such rule. Appellant apparently did not follow-up on this comment; nowhere in its motion to reinstate is it averred that a meritorious defense exists.

      . Since we have found merit in appellant’s argument on this first issue, it is not necessary that we dispose of appellant’s second argument.


author: PER CURIAM:

text:
    451 A.2d 779
    COMMONWEALTH of Pennsylvania v. James V. MASTROTA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 6, 1981.
    Filed Oct. 15, 1982.

      Patrick J. Flannery, Assistant Public Defender, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   PER CURIAM:

We here consider an appeal from an order which denied a rule to show cause why a hearing should not be granted on the amended Post Conviction Hearing Act petition of appellant. We are compelled to quash the appeal since the order appealed from is interlocutory and did not finally dispose of the petition for Post Conviction Hearing Act relief.

Appellant initially filed an uncounselled petition under the Post Conviction Hearing Act alleging certain reasons why his conviction for murder should be overturned. The Common Pleas Court appointed the office of the Public Defender of Luzerne County to represent appellant and directed that counsel assist appellant in the preparation of an amended petition. The public defender subsequently filed an amended petition on behalf of appellant upon which, on October 30, 1980, the court entered a rule to show cause why a hearing should not be granted and set December 23, 1980 as the date for a hearing on the petition.

While the Commonwealth appeared pursuant to the rule and was prepared to proceed with the hearing on the petition, appellant and his counsel failed to appear. As a result, the court entered the following Order:

“NOW, this 23rd day of December, 1980, at 9:45 a.m., the rule to show cause why a hearing should not be granted is denied.
/s/ Brominski, P.J.”

The court did not thereafter, however, enter an order finally disposing of the petition for post-conviction relief.

We note that counsel for appellant failed to appear in the Common Pleas Court and in this Court filed a brief in which he:

Presents the issue in the Statement of Questions Involved as:
Whether the appellant James V. Mastrota was denied effective assistance of counsel in pursuing his post conviction petition?
Completes the twenty-three lines of the argument of appellant with the request that “the Superior Court grant a rehearing before the Lower Court.” (Brief of appellant at p. 5).

We need not, it would seem, comment further.

In any event, since the order appealed from is not a final order we must quash the appeal. See Pa.Crim.P. 1509.

Appeal quashed.

      . We quash this appeal without prejudice to the right of appellant to petition the Common Pleas Court for the appointment of new counsel to assist him to secure both a hearing upon and final disposition of his Post Conviction Hearing Act petition.


text:
    451 A.2d 780
    Allen L. FEINGOLD, Appellant, v. A & C ELECTRIC COMPANY, INC. a/k/a A & C Service Company, Inc.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1982.
    Filed Oct. 15, 1982.
    Petition for Allowance of Appeal Denied Jan. 24, 1983.

      Allen Feingold, Philadelphia, for appellant.
    Edgar R. Einhorn, Philadelphia, for appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from an order quashing a plaintiff’s Appeal from the Report and Award of Arbitrators in the Philadelphia Common Pleas Court. We affirm.

Plaintiff, an attorney-at-law, had entered into a home improvement contract with the defendant for certain heating, air conditioning and electrical work at plaintiff’s residence. Plaintiff thereafter instituted suit in assumpsit against the defendant contractor and the matter was duly assigned to arbitration. The plaintiff secured an award in his favor in the amount of $1,050.00, with interest. He then sought to file an appeal from the arbitration award, limiting his appeal solely to the issue of the amount of the damages, while seeking to leave intact the finding as to the contractor’s liability in assumpsit.

In response, the defendant filed its motion to quash the appeal, contending that the statutory mandate that all appeals from compulsory arbitration pursuant to 42 Pa.C. S.A. § 7361(d) be de novo, thereby precluding any selective appeal limited to the damage issue alone. We agree.

Our review of the record and the briefs of the parties compels us to conclude that the position and contentions of the plaintiff-appellant are wholly devoid of merit. The excellent opinion of Judge Bernard J. Goodheart filed September 18, 1981 more than adequately disposes of appellant’s contentions and is hereby adopted for purposes of allocatur.

We note that appellant seeks to advance the argument on this appeal that amendment of the appeal from the award of arbitrators should be permitted nunc pro tunc, were this court to agree with the reasoning and order of the trial court on the motion to quash. Our examination of the pleadings and the record satisfy us that this issue was not properly presented to the trial court, and is not properly before us on appeal. Plaintiff, in his Petition for Reconsideration of the Court’s Order of March 18, 1981, prayed that the trial court’s order here under review be “vacated and stricken, and the defendant’s Motion to Quash Appeal . . . be denied.” There is nothing in the conclusion of law contained in the third paragraph of the Petition to support appellant’s belated suggestion that he be permitted the opportunity to continue pursuit of this appeal.

The order of the distinguished trial judge, dated March 18, 1981, is affirmed.


text:
    451 A.2d 781
    COMMONWEALTH of Pennsylvania v. Hershel R. CLUTTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1982.
    Filed Oct. 22, 1982.
    Kevin Lee Sanders, Johnstown, for appellant.
    Ray Frank Gricar, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   PER CURIAM:

The record certified to us in this case does not contain the required opinion of the trial judge. See Pa.R.A.P. 1921, 1925(a). Therefore we remand for filing of the opinion. See Commonwealth v. Coda, 283 Pa.Super.Ct. 408, 424 A.2d 529 (1981).

Case remanded, with instructions; jurisdiction retained.


author: WIEAND, Judge: McEWEN, Judge, POPOVICH, Judge,

text:
    451 A.2d 781
    COMMONWEALTH of Pennsylvania ex rel. Alfred A. DAVENPORT v. MONTGOMERY COUNTY CHILDREN & YOUTH SERVICES and Joseph Zdun and Ada Zdun, h/w and Kathy Ann Davenport. Appeal of Alfred A. DAVENPORT.
    Superior Court of Pennsylvania.
    Argued March 31, 1982:
    Aug. 27, 1982.
    Rehearing Denied Nov. 12, 1982.
    Petition for Allowance of Appeal Granted Feb. 17, 1983.

      Francis T. Dennis, Conshohocken, for appellant.
    Catherine M. Lecky, King of Prussia, for Zdun, appellees.
    Norman A. Klinger, Norristown, for Kathy Davenport, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   WIEAND, Judge:

After a full hearing in which a natural mother conceded that she could not care for a four-year-old daughter, the court awarded custody of the child to maternal grandparents in preference to the natural father. The father appealed. We reverse.

Kathy Ann Davenport, a female child, was born January 16, 1977. Her parents, who had been married on May 20, 1976, were separated in June, 1978 and divorced on December 6, 1979. Upon separation, Kathy Ann remained in the custody of her mother who, in turn, resided with her parents, Joseph and Ada Zdun. This housing arrangement continued until April, 1979, when Kathy Ann and her mother moved into an apartment in Norristown. They were joined there in December, 1979, by the mother’s boyfriend. On January 17, 1980, because of confirmed reports of child abuse, Kathy Ann’s mother signed a voluntary placement agreement giving custody of her daughter to Children & Youth Services of Montgomery County (CYS). That agency placed Kathy Ann with her maternal grandparents. On February 22, 1980, Kathy Ann was declared a dependent child by the Juvenile Division of the Court and placed in the temporary custody of CYS with the understanding that she would continue to reside with her maternal grandparents.

On May 14, 1980, Alfred A. Davenport, Kathy Ann’s father, who had learned that his daughter was in the custody of CYS, filed a petition for custody. The maternal grandparents filed a cross-petition, and Kathy Ann’s mother intervened. On July 17,1980, following hearings, temporary custody was awarded to Alfred A. Davenport, Kathy Ann’s father, but with partial custody in Kathy Ann’s mother during the three days each week that her employment did not require her to be away from home.

On January 2, 1981, the maternal grandparents filed a new petition seeking custody of Kathy Ann Davenport. After hearing, an order was entered which awarded custody of Kathy Ann Davenport to her maternal grandparents but with visitation rights to the father.

As a general rule, a change in custody must be based upon a showing of a change in conditions. Commonwealth ex rel. J.J.B. v. R.A. McG., 283 Pa.Super. 185, 188, 423 A.2d 1050, 1052 (1980); Commonwealth ex rel. Swanson v. Barry, 199 Pa.Super. 244, 247, 184 A.2d 370, 372 (1962). At the time of the second hearing, Kathy Ann Davenport’s mother was unemployed and did not have an apartment in which to live. The trial court also found that the joint custody arrangement previously ordered had not worked satisfactorily and that the child was being harmed by the constant shifting from household to household. This was adequate reason to review and alter the original custody order.

In Ellerbe v. Hooks, 490 Pa. 363, 367-368, 416 A.2d 512, 513-14 (1980), the Supreme Court adopted the rule articulated for the Superior Court by Judge Spaeth in In Re Custody of Hernandez, 249 Pa.Super. 274, 286, 376 A.2d 648, 654 (1977), as follows:

When the judge is hearing a dispute between the parents, or a parent, and a third party, .. . [t]he question still is, What is in the child’s best interest? However, the parties do not start out even; the parents have a ‘prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.

See also: Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980); Ferencak v. Moore, 300 Pa. Super. 28, 32, 445 A.2d 1282, 1284 (1982).

The scope of review in custody cases is broad. Albright v. Commonwealth ex rel. Fetters, supra, 491 Pa. at 324, 421 A.2d at 158; Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 443, 292 A.2d 380, 383 (1972); Commonwealth ex rel. Bendrick v. White, 403 Pa. 55, 59, 169 A.2d 69, 71 (1961); Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). “Nonetheless, a broad scope of review should not be construed as providing the reviewing tribunal with a license to nullify the fact-finding functions of the court of the first instance.” Albright v. Commonwealth ex rel. Fetters, supra, 491 Pa. at 324, 421 A.2d at 159. See also: Commonwealth ex rel. Bendrick v. White, supra 403 Pa. at 59, 169 A.2d at 72; Ferencak v. Moore, supra; Commonwealth ex rel. Bowser v. Bowser, 224 Pa.Super. 1, 4, 302 A.2d 450, 451 (1973). This is because the trial court has had an opportunity to observe the witnesses and is, therefore, much better able to appraise their credibility. However, we are not bound by the conclusions or inferences drawn from those facts by the trial court. Ferencak v. Moore, supra; Commonwealth ex rel. Berman v. Berman, supra, 289 Pa.Superior Ct. at 93, 432 A.2d at 1067; In Re Custody of Hernandez, supra, 249 Pa.Superior Ct. at 290, 376 A.2d at 656.

Here, the trial court concluded that during the period of joint custody, appellant “did not do a very good job raising Kathy Ann Davenport as a parent.” This conclusion was based on a Sunday morning incident during which he “got into a quarrel with [Kathy Ann] which lasted some four hours, simply because the child wanted to get out of bed and he and [the woman with whom he lived] wanted to sleep. The incident ended with the child being physically disciplined three separate times and being locked in her room.” In addition, the trial court identified as reasons for preferring the grandparents the appellant-father’s unemployment, the possible lack of permanency in a non-marital relationship, and his “questionable” interest in Kathy Ann because he had placed her in a day care center during the period of joint custody and because previously he had failed to visit his daughter while she was in her mother’s custody, i.e., prior to February 22, 1980, when Kathy Ann was adjudicated a dependent child. On the other hand, the court found, the maternal grandparents had demonstrated that they could provide a stable home where Kathy Ann would have spacious quarters and neighborhood children with whom to play. Kathy Ann, moreover, had expressed a preference to remain with her grandparents.

One cannot read the record of the hearing in this matter without obtaining a sense that appellant, although young and inexperienced as a parent, is nevertheless sincere in his desire to have Kathy Ann with him and achieve for her the best. He is a stricter disciplinarian than the child’s grandparents. The appellee-grandparents, although deeply caring, are also motivated in part by the fear that their daughter’s inadequate history as a parent will result in the severing of close ties between them and their grandchild. They are financially secure, have a spacious home and, in general, have achieved that degree of success and stability which has thus far eluded the younger and less experienced father of Kathy Ann.

This difference, however, is neither greater nor less than that which exists between most young parents and older, more experienced grandparents. Should this lack of experience be the basis for removing custody of a small child from his or her parents and awarding the same to the child’s grandparents? Are the greater stability and parenting experience of grandparents “convincing” reasons sufficient to overcome a natural father’s prima facie right to custody? We conclude that they are not.

In Palmer v. Tokarek, 279 Pa. Super. 458, 421 A.2d 289 (1980), this Court held the fact that a child had expressed a preference to remain with his grandparents and that he had been well cared for and loved by his grandparents for almost eight years did “not amount to such convincing reasons as would overcome the father’s right to have [the child] with him.” Id., 279 Pa.Superior Ct. at 469, 421 A.2d at 295. Similarly, in Ferencak v. Moore, supra, this Court held the fact that a five-year-old child had been residing with paternal grandparents for nineteen months was not alone a “convincing reason” for denying custody to a natural parent. These cases, as well as others, hold that “the father’s right to custody is forfeitable only by misconduct or other factors which substantially effect the child’s welfare.” Palmer v. Tokarek, supra, 279 Pa.Superior Ct. at 472, 421 A.2d at 296 (emphasis in original). See also: Johnson v. Pinder, 217 Pa.Super. 180, 182, 269 A.2d 511, 512 (1970); Commonwealth ex rel. Insalaco v. Delconte, 201 Pa.Super. 354, 356, 192 A.2d 750, 751 (1963), aff’d, 413 Pa. 221, 196 A.2d 353 (1964); Commonwealth ex rel. Sabath v. Mendelson, 187 Pa.Super. 73, 76, 143 A.2d 665, 667 (1958). Compare: Albright v. Commonwealth ex rel. Fetters, supra; Ellerbe v. Hooks, supra; Dile v. Dile, 284 Pa.Super. 459, 426 A.2d 137 (1981).

In the instant case, the cohabitation of appellant and his girlfriend was not shown to have affected in any way the welfare of the child. Consequently, it cannot defeat appellant’s superior right to custody. See: Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 140-141, 360 A.2d 587, 590 (1976); Commonwealth ex rel. Michael R. v. Robert R.R., 293 Pa.Super. 18, 23, 437 A.2d 969, 971 (1981); Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). Similarly, the fact that appellant was temporarily unemployed and receiving unemployment compensation was not a measure of his ability to be a good father. We are also unable to accept as accurate the trial court’s conclusion that appellant’s interest in his child was “questionable.” If that interest was not apparent while appellant believed the child to be in the custody of and properly cared for by her mother, it manifested itself unequivocally after he learned that the child had been abused during that custody. So also, we find it improper to infer a lack of interest from the fact that Kathy Ann, while in appellant’s custody, had attended day school. This is particularly so where, as here, appellant explained attendance at day school as an attempt to enable Kathy Ann to associate with children her own age.

There remains, then, the Sunday morning incident in which the child was physically punished for wanting to be with appellant, who wished to sleep. Custody of a small child, as appellant concedes, is a demanding and taxing undertaking. He admits that in this instance he did not handle the situation well and that greater parenting experience may have caused him to react differently. The trial court properly concluded that this incident demonstrated “little maturity” on the part of appellant. However, it did not suggest “child abuse,” as appellees contended. This was confirmed by Paulette Jones Marshall, a representative of CYS, who, upon learning of the incident from the appelleegrandparents, had conducted an investigation. She testified, when asked by counsel for the child’s mother, that CYS continued to recommend, as it had at the earlier hearing, that a natural parent be preferred over the maternal grandparents. We conclude, therefore, that one incident of corporal punishment, even if unadvisedly administered, was not a convincing reason to overcome the natural parent’s prima facie right to custody.

The order awarding custody to maternal grandparents is reversed; and custody of Kathy Ann Davenport is awarded to appellant. The case is remanded for the purpose of entering an appropriate order allowing visitation.

McEWEN, J., files a concurring opinion.

POPOVICH, J., files a dissenting statement.

McEWEN, Judge,

concurring:

While Homer did not tell of Helen as a small girl, Maurice Chevalier did voice in appreciation that joy was a little girl. It is certain that the baby that inspired the wisdom of Solomon was a boy, for that King would have kept for himself to raise a baby girl. And so it is, that in nothing less than anguish do we consider the determination of who shall have custody of Kathy Ann, now only five years of age.

The opinions of this court repeatedly echo that our most precious resource is the children of our Commonwealth and that there is no more important class of case nor more urgent issue than that of custody. Just as there is no more easy role than to pronounce this principle, so there is no more difficult task than to apply it.

There has not been a more troublesome decision in my experience. The distinguished Montgomery County Common Pleas Court Judge Lawrence A. Brown as trial judge had an opportunity to observe the witnesses and is, therefore, better able to evaluate their credibility as well as gain an impression of their parenting skills. For that reason, as well as the fact that his opinion reflects a careful and intense consideration of the question, I had been inclined to resolve this very close decision by reliance upon the determination of the trial court.

It seems, however, that the further reflection inspired by the very thoughtful majority opinion of my eminent colleague causes me to concur in the result. The case has been remanded by the majority to the Common Pleas Court for the purpose of entering an appropriate order for visitation. It strikes me that it may well be in the best interest of this child if the court were also to monitor the custody and visitation relationships in a fashion that the court deems prudent and for such a time in the future as the court thinks wise.

I concur in the result.

POPOVICH, Judge,

dissenting:

After compiling an extensive record, applying the law impeccably to the facts emerging from competent evidence and articulating in a comprehensive opinion its reasons for its adjudication, the trial court awarded custody of the child, according to the child’s best interest, to the relatively youthful grandparents.

Finding no substantial reason to reverse the trial court which closely observed the witnesses, I respectfully dissent.


author: WICKERSHAM, Judge: CIRILLO, Judge,

text:
    451 A.2d 1015
    FISHER SPRINKLER CO., INC., v. Dorothy E. IDE and Alva Hinkley, individually and trading and doing business as Ide Convalescent Home, Appellants. FISHER SPRINKLER CO., INC., Appellant, v. Dorothy E. IDE and Alva Hinkley individually and trading and doing business as Ide Convalescent Home.
    Superior Court of Pennsylvania.
    Argued March 8, 1982.
    Filed Oct. 15, 1982.
    Petition for Allowance of Appeal Denied Feb. 17, 1983.

      Leonard J. Gajewski, Reading, for Ide, for appellants (at No. 1045) and appellees (at No. 1208).
    Paul R. Ober, Reading, for Fisher, appellant (at No. 1208) and appellee (at No. 1045).
    Before CAVANAUGH, WICKERSHAM and CIRILLO, JJ.
   WICKERSHAM, Judge:

This is an appeal from an order granting appellant Ide Convalescent Home (hereinafter Ide) a new trial and directing appellee/cross-appellant Fisher Sprinkler Co. (hereinafter Fisher) to file an amended complaint pursuant to the requirements of the Mechanics’ Lien Law, Act of August 24, 1963, P.L. 1175, No. 497, 49 P.S. § 1101 et seq. The order is reversed.

The relevant facts are as follows. Fisher and Ide entered into a written contract, the terms of which provided that Fisher was to install a sprinkler system in the Ide Convalescent Home in return for $33,245.00. After Fisher started work, the Pennsylvania Department of Labor and Industry informed Ide that it would no longer be allowed to operate its convalescent home. Fisher stopped work and, on June 11, 1975, filed a statement of mechanics’ lien to recover $18,640.00, the value of the materials and labor alleged to have been provided under the contract.

Fisher’s complaint identified the contract the claim was filed under and provided a general statement of the items and services for which recovery was sought. Ide filed preliminary objections to the complaint, contending that an itemized list of these materials and services was required. Ide’s preliminary objections were dismissed. The case was tried and on September 13, 1979, a verdict of $11,390.00 in favor of Fisher was returned.

Ide filed exceptions to the findings, and decision of the lower court and also filed a petition to strike mechanics’ lien. The lower court stated, in an opinion dated March 26, 1981, that because Fisher was claiming the value of the materials and services it had provided to Ide in partially completing the sprinkler system, rather than the full contract price, the nature of Fisher’s claim was in assumpsit based on a theory of quantum meruit rather than on the contract to install the sprinkler system. The lower court decided that Fisher’s claim should have contained an itemized list of services and material provided rather than the general statement of such permitted by section 1503(5) of the Mechanics’ Lien Law when the mechanics’ lien claim is filed under a contract. The lower court directed that Fisher file an amended claim and complaint and granted a new trial. This appeal, and cross-appeal, followed.

Initially, we note that an order granting a new trial is appealable pursuant to Pa.R.A.P. 311(a) which provides in pertinent part:

Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
(5) New trials. An order in a civil action or proceeding awarding a new trial....

Pa.R.A.P. 311(a)(5).

Appellant Ide frames its first question involved as follows:
Has the mechanics lien been wholly lost by reason of plaintiffs failure to prosecute his claim to final judgment within five (5) years?

Brief for Appellant at 3.

The time limitations applicable to the prosecution of mechanics’ liens are set forth in section 1701(d) of the Mechanics’ Lien Law as follows:

A verdict must be recovered or judgment entered within five (5) years from the date of filing of the claim. Final judgment must be entered on a verdict within five (5) years. If a claim is not prosecuted to verdict or judgment, as provided above, the claim shall be wholly lost.. . .

(Emphasis added).

Ide contends that Fisher has lost the right to prosecute its claim because a final judgment was not entered within five years of June 11, 1975, the date Fisher filed its mechanics’ lien claim. Ide’s argument fails to consider the plain language of section 1701(d) which dismisses a mechanics’ lien claim only if a judgment or a verdict is not obtained within five years of the filing of the claim. A verdict in favor of Fisher was entered on September 13, 1979, well within the five year period.

Appellant Ide frames its second question involved as follows:

Did the court err in awarding defendants a new trial and in directing plaintiff to file an amended mechanics lien claim and amended complaint where the court found that the plaintiff filed its mechanic lien claim in violation of the Mechanics Lien Law of 1963, 49 P.S. § 1503(6)?

Brief for Appellant at 3.

Cross-appellant Fisher raises a substantially similar question:

Did the court en banc err in finding that plaintiff’s mechanics’ lien claim was not sufficiently specific under sections 503 and 305 of the Mechanics’ Lien Law?

Brief for Cross-appellant at 3.

An order granting a new trial will not be reversed unless there has been a clear abuse of discretion or error of law which necessarily controlled the grant of a new trial. Gilligan v. Shaw, 441 Pa. 305, 272 A.2d 462 (1971).

Section 1503(5) of the Mechanics’ Lien Law provides: The claim shall state:
... (5) if filed by a contractor under a contract or contracts for an agreed sum, an identification of the contract and a general statement of the kind and character of the labor or materials furnished....

Fisher’s claim was filed under its contract to install a sprinkler system for Ide. The contract was identified in Fisher’s statement of mechanics’ lien claim and a general identification of the work done and the materials furnished was provided. The lower court was incorrect in basing its decision to award a new trial on the fact that Fisher sought less than the full contract price as damages.

Fisher’s claim was filed under the contract although it was not for the full contract price as not all the work had been completed when Ide Convalescent Home was closed. Fisher’s claim met the specificity requirements of the Mechanics’ Lien Law. The equities of the instant situation favor Fisher. Fisher did the work, won the trial, and should be paid without going through trial again. Ide was not so prejudiced by the lack of a detailed statement of the work done that a new trial is mandated. The order of the lower court that a new trial be held is reversed and the verdict in favor of Fisher is reinstated.

Order reversed with directives.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent. I agree, with the majority that Fisher did not lose the right to prosecute its claim against Ide in a new trial because it obtained a verdict within five years of the date upon which it filed its original claim. See, Brann & Stuart Co. v. Consolidated Sun Ray, Inc., 433 Pa. 574, 253 A.2d 105 (1969). I believe, however, that the majority erroneously reversed the lower court order which granted Ide a new trial. It is well established that an order granting a new trial will not be reversed on appeal absent a palpable abuse of discretion or error of law on the part of the court below. Ditz v. Marshall, 259 Pa.Super. 31, 393 A.2d 701 (1978); Hussey v. May Department Stores, 238 Pa.Super. 431, 357 A.2d 635 (1976); Holmes v. Waters, 235 Pa.Super. 180, 340 A.2d 474 (1975). No such error of law or abuse of discretion was shown in the instant case. Therefore, I would affirm the order of the trial court.

In the case at bar, Fisher sought to recover for labor and materials it provided to Ide under a contract which had not been fully performed. In its complaint, Fisher neglected to provide an itemized statement of these articles and the payment to which it was entitled for each. Ide complained about this lack of specificity in its preliminary objections, answer, pre-trial conference memorandum, and in its exceptions following the verdict in favor of Fisher. The Mechanics’ Lien Law clearly gave Ide the right to demand that Fisher file a complaint containing a more detailed list of items provided under the contract and the compensation due for each item.

Under the Mechanics’ Lien Law, a complaint that contains a general statement of labor and materials provided under a contract is only permissible where a contractor seeks to recover a sum of money established by a contract. Act of August 24, 1963, P.L. 1175, Art. Y, § 503, 49 P.S. § 1503(5). In such a case, the contract, itself, can be referred to for a list of labor and materials provided and the amount of money to which the contractor is entitled. In the instant case, however, the contract could not be relied upon to provide this information. Additionally, Fisher was not attempting to recover a sum that had been established by the contract it entered into with Ide. Thus, the Mechanics’ Lien Law explicitly required that Fisher’s complaint “set forth a detailed statement of the labor or materials provided, or both, and the prices charged for each . . . . ” Id. § 1503(6). I disagree with the Majority’s assertion that such a detailed statement was not required in the present case merely because Fisher’s claim was filed under a contract. If no contract existed, Fisher would not have the right to file a mechanics’ lien in the first instance. See, Murray v. Zemon, 402 Pa. 354, 167 A.2d 253 (1961).

Moreover, I agree with the lower court’s conclusion that, since Fisher was attempting to recover for goods and services it provided under an uncompleted contract, the nature of its claim was in quantum meruit rather than on the contract. It is well established that a complaint based on a contract to pay a fixed price is insufficient where a party attempts to recover in quantum meruit. John Conti Co. v. Donovan, 358 Pa. 566, 57 A.2d 872 (1958); Nuebling v. Borough of Topton, 323 Pa. 154, 185 A. 725 (1936). I fail to discern any abuse of discretion or error of law in the instant case which requires this court to reverse the trial court’s order granting Ide a new trial. Compare, Hornak v. Pittsburgh Railways Co., 433 Pa. 169, 249 A.2d 312 (1969). I therefore dissent.