author: SPAETH, Judge: ROWLEY, Judge,

text:
    461 A.2d 807
    COMMONWEALTH of Pennsylvania v. Henry L. LAWSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1982.
    Filed June 3, 1983.

      John F.X. Morley, Jr., Assistant Public Defender, Media, for appellant.
    Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   SPAETH, Judge:

This is an appeal from judgments of sentence for retail theft, theft by unlawful taking, and criminal conspiracy. Appellant argues: (1) that his convictions were against the evidence and the weight of the evidence; (2) that the trial court erred in admitting appellant’s statement into evidence; and (3) that the motion court erred in granting the Commonwealth leave to add to the original charges the charge of theft by unlawful taking. The first two arguments are without merit. On the third argument, however, we hold that when an offense is within both the general statutory provisions against theft by unlawful taking and the specific statutory provisions against retail theft, the offender may be prosecuted only for retail theft. It was therefore error to grant the Commonwealth leave to add the charge of theft by unlawful taking. Accordingly, we vacate the judgments of sentence for theft by unlawful taking, but affirm the judgments of sentence for retail theft and criminal conspiracy.

1

The evidence may be summarized as follows. On July 21, 1980, Gail McNeal, a night-time supervisor of the jewelry department of the Strawbridge & Clothier store in Springfield, Pennsylvania, saw appellant and another man, later identified as Victor O’Connor, at one of the jewelry counters without a store attendant assisting them. Because “[t]heir eyes kept moving around like they were looking to see if anybody was watching them,” McNeal became suspicious and notified store security. N.T. at 6. Joseph Read, a Springfield Township Police Officer who worked part-time as a Strawbridge & Clothier security detective, responded to McNeal’s call. Id. at 18. He saw appellant help O’Connor lift the glass top of a jewelry case with a knife-like object, and hold the top open while O’Connor reached in and took out several pieces of jewelry and put them in a brown canvas bag. Id. at 23-27. Read alerted another store detective, Martin Wusenic, and proceeded to follow appellant and O’Connor as they left the store. Id. 27-28. Appellant and O’Connor split up and ran in different directions. Read and Wusenic caught O’Connor, id. at 31 & 62, and took him to the security office. There the bag he had been carrying was found to contain several pieces of jewelry, each with the Strawbridge & Clothier sticker still on it. Id. at 32-33. The total value of the jewelry was $11,115. Id. at 34. O’Connor told Read his name and address, and described his vehicle as a blue Volkswagen. Id. at 36-37. Upon hearing this, Wusenic went out to look for appellant. Id. at 66. He found appellant standing by a blue Volkswagen beetle. Id. 66-68. When Wusenic called to him, appellant started to run away. Wusenic pursued, identified himself, drew his gun, and ordered appellant to halt. Id. at 69. Appellant did halt, and was taken to the security office. Id. As Wusenic and appellant entered the office, appellant “made a statement [Wusenic testified] to the O’Connor subject to the effect that I was going to come back in for you, man.” Id. at 73.

Appellant’s argument that his convictions were “against the evidence and the weight of the evidence,” Brief for Appellant at 3, 11-12, is without merit. Appellant argues that he could not be convicted because “no jewelry was found on him nor was there an implement useful for committing a crime,” and because the evidence “fail[ed] to establish that [he] took possession of, carried away, transferred or caused to be carried away, or transferred” any jewelry. Brief for Appellant at 11. This argument ignores Read’s testimony that he saw appellant help O’Connor take the jewelry by holding the jewelry case open. This was sufficient evidence that appellant was O’Connor’s accomplice and therefore guilty of O’Connor’s offense. See 18 Pa.C.S. § 306(b)(3) & (c). See also Commonwealth v. Bridges, 475 Pa. 535, 381 A.2d 125 (1977).

2

Appellant’s argument that Wusenic should not have been allowed to testify to what appellant said to O’Connor in the security office (“I was going to come back in for you, man”) is also without merit. Appellant now argues that this “was a potentially inculpatory [statement] made beyond the scope of any conspiratorial relationship that might once have existed.” Brief for Appellant at 13. We assume from this argument that appellant challenges the statement as hearsay not admissible under the exception allowing proof of statements between co-conspirators during and in furtherance of their conspiracy. At trial, however, defense counsel only objected to Wusenic’s characterization of what appellant said to O’Connor as “a statement.” The argument now made, that the statement was inadmissible hearsay, has therefore been waived. Pa.R. App.P. 302(a). But in any case, the statement was not hearsay. It was instead a “verbal act,” for its utterance was proof of the fact that appellant knew O’Connor. Appellant’s knowing O’Connor was a relevant fact because it tended to prove that appellant and O’Connor had acted together. The truth of the utterance—whether appellant did intend to come back for O’Connor—was not at issue. See generally McCormick on Evidence 588-90 (2d ed. E. Cleary 1976).

3

Appellant was originally charged with retail theft, receiving stolen goods, criminal attempt, disorderly conduct, and conspiracy. On the Commonwealth’s motion, the lower court granted the Commonwealth leave to add the charges of theft by unlawful taking and receiving stolen goods. At trial, the lower court, sitting without a jury, granted a demurrer to the charge of disorderly conduct, but at the conclusion of the evidence, it convicted appellant of the other charges. In announcing its verdict, the court stated that the charges of receiving stolen goods and criminal attempt merged with the theft charges, “So, that in effect, you have been found guilty of Retail Theft and Theft by Unlawful Taking and Criminal Conspiracy the subject of which was in excess of $2000.00.” Verdict, n. T. 3. At sentencing, the court imposed a sentence of two to five years in prison, with appellant to make restitution and pay costs “[when he is] in an income earning situation and that matter must be deferred pending the parole status,” Sentencing, N.T. 18. This sentence was imposed on each of the three convictions, the three sentences to be served concurrently.

Throughout the proceedings, appellant maintained that he could not be prosecuted, and later, could not be sentenced, for theft by unlawful taking. In the opinion of the lower court, however, he could be prosecuted for both, and could be sentenced for “the more serious of the offenses.” Sentencing, N.T. 19.

Whether a defendant may be prosecuted for both retail theft and theft by unlawful taking is an issue that has been argued to us before, but we have not decided it for on both occasions it had been waived. See, Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1981); Commonwealth v. Williams, 252 Pa.Super. 587, 384 A.2d 935 (1978). Here, however, the issue has not been waived. Appellant objected to the Commonwealth’s motion for leave to add the charge of theft by unlawful taking, and repeated his objection at sentencing and in his post-trial motions.

Theft by unlawful taking of movable property is defined as follows:

A person is guilty of theft if he unlawfully takes, or exercises control over, movable property of another with intent to deprive him thereof.
18 Pa.C.S. § 3921(a).

Retail theft is defined as follows:

—A person is guilty of a retail theft if he:
(1) takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof;
(2) alters, transfers or removes any label, price tag marking, indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale in a store or other retail mercantile establishment and attempts to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of the full retail value of such merchandise;
(3) transfers any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the full retail value thereof; or
(4) under-rings with the intention of depriving the merchant of the full retail value of the merchandise.
18 Pa.C.S. § 3929(a).

For sentencing purposes, theft by unlawful taking is graded as follows:

(a) Felony of the third degree.—Theft constitutes a felony of the third degree if the amount involved exceeds $2,000, or if the property stolen is a firearm, automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property.
(b) Other grades.—Theft not within subsection (a) of this section, constitutes a misdemeanor of the first degree, except that if the property was not taken from the person or by threat, or in breach of a fiduciary obligation, and:
(1) the amount involved was $50 or more but less than $200 the offense constitutes a misdemeanor of the second degree; or
(2) the amount involved was less than $50 the offense constitutes a misdemeanor of the third degree.
18 Pa.C.S. § 3903(a), (b).

Retail Theft is graded as follows:

(1) Retail theft constitutes A:
(I) Summary offense when the offense is a first offense and the value of the merchandise is less than $150.
(II) Misdemeanor of the second degree when the offense is a second offense and the value of the merchandise is less than $150.
(III) Misdemeanor of the first degree when the offense is a first or second offense and the value of the merchandise is $150 or more.
(IV) Felony of the third degree when the offense is a third or subsequent offense, regardless of the value of the merchandise.
(2) Amounts involved in retail thefts committed pursuant to one scheme or course of conduct, whether from the same store or retail mercantile establishment or several stores or retail mercantile establishments, may be aggregated in determining the grade of the offense.
18 Pa.C.S. § 3929(b).

Thus, here, where the value of the property stolen was some $11,000, appellant’s offense was a felony of the third degree, if regarded as theft by unlawful taking, but a misdemeanor of the first degree, if regarded as retail theft.

The conclusion is inescapable that these statutory provisions are in conflict. They prohibit the same conduct, but regarded as theft by unlawful taking, that conduct is a felony of the third degree, punishable by a fine not exceeding $15,000, 18 Pa.C.S. § 1101(2), and by imprisonment for a term not exceeding seven years, 18 Pa.C.S. § 1103(3), while regarded as retail theft, it is a misdemeanor of the first degree, punishable by a fine not exceeding $10,000, 18 Pa.C.S. § 1101(3), and by imprisonment for a term not exceeding five years, 18 Pa.C.S. § 1104(1).

This conflict, however, is readily resolved. The statutory provisions prohibiting retail theft are specific: they concern only merchandise of a retail establishment. The statutory provisions prohibiting theft by unlawful taking are general: they prohibit theft of any sort of “movable property,” from any one or any place. When specific statutory provisions thus irreconcilably conflict with general statutory provisions, the specific provisions must prevail. This rule has been statutorily enacted, 1 Pa.C.S. § 1933, but it is also a rule of case law. Thus in Commonwealth v. Brown, 346 Pa. 192, 29 A.2d 793 (1943), the Court said: “It is the policy of the law not to permit prosecutions under the general provisions of a penal code when there are applicable special provisions available.” Id., 346 Pa. at 199, 29 A.2d at 796 (footnote omitted). Also: “[G]eneral legislation must give way to specific legislation on the same subject and ... the general provisions in a law must be interpreted as to embrace only cases to which the special provisions, on the same subject are not applicable.” Id., 346 Pa. at 200, 29 A.2d at 797 (citation omitted). And see Commonwealth v. Bidner, 282 Pa.Super. 100, 422 A.2d 847 (1981); Commonwealth v. Buzak, 197 Pa.Super. 514, 179 A.2d 248 (1962); Commonwealth v. Litman, 187 Pa.Super. 537, 144 A.2d 592 (1958). Accordingly, appellant could be prosecuted only for retail theft—only for violating the “applicable special provisions available.” It was therefore error for the lower court to grant the Commonwealth leave to prosecute him for theft by unlawful taking.

The Commonwealth argues that we should not apply “the specific/general principle of law” because “both provisions under which appellant was charged are contained within the same chapter of the Crimes Code.” Brief for Commonwealth at 14. In support of this argument the Commonwealth cites Commonwealth v. Belcher, 233 Pa.Superior Ct. 212, 335 A.2d 505 (1975), where we noted that “various crimes which resemble theft are not to be treated as theft” but separately. Id., 233 Pa.Superior at 217-18 n. 4, 335 A.2d at 507 n. 4. This separate treatment, however, means that we should apply, not that we should refuse to apply, “the specific/general principle.”

The Commonwealth next argues that in enacting specific statutory provisions prohibiting retail theft, “the legislature intended to provide for a summary proceeding when the circumstances warranted such treatment.” Brief for Commonwealth at 15. No doubt one of the legislature’s purposes was to provide a summary proceeding for first offenders, but that was not its only purpose, as is evident from the provisions that retail theft may be a felony of the third degree or a misdemeanor of the first or second degree, depending upon the value of the merchandise stolen and the number of past offenses. Thus it cannot be maintained, as the Commonwealth’s argument suggests, that the retail theft provisions are only to be applied when the retail theft constitutes an offense subject to a summary proceeding.

The Commonwealth next argues that the provision, among the provisions prohibiting retail theft, that “[n]o justice of the peace or other magistrate shall have the power to reduce any other charge of theft to a charge of retail theft ____,” 18 Pa.C.S. § 3929(e), “implies that the legislature anticipated that the same facts that give rise to charges under the general theft provisions might also constitute the crime of Retail Theft in certain cases.” Brief for Commonwealth at 15. We may assume that the legislature did so anticipate. That in no way suggests that the legislature intended that “the general theft provisions” should prevail over the specific retail theft provisions, in other words, that the legislature intended that we should ignore both the cases and the statutorily enacted rule, which we have cited above, that specific statutory provisions must prevail over general provisions. Indeed, by providing that a charge of theft by unlawful taking may not be reduced to a charge of retail theft, the legislature emphasized its intention to treat retail theft as a separate category of offense, thereby bringing into play the principle that the special retail theft provisions must prevail.

The Commonwealth next argues that “carrying away the expensive items of jewelry demonstrated a degree of professional criminal behavior that was not contemplated by the drafters of the retail theft statute.” Brief for Commonwealth at 16. We see no basis for this argument. To the contrary, it is plain that the legislature recognized that retail theft might involve items of considerable value, and might be committed by a “professional criminal.” Thus the statute provides that if the stolen merchandise is worth $150.00 or more, the offense is a misdemeanor of the first degree, even if it is a first offense, 18 Pa.C.S. § 3929(b)(l)(III), and that if the offense is a third or subsequent offense, it is a felony of the third degree, 18 Pa.C.S. § 3929(b)(l)(IV).

The Commonwealth’s final argument is that appellant’s conviction for theft by unlawful taking should not be reversed because appellant is not prejudiced by it. In support of this argument the Commonwealth says that appellant had two prior convictions for retail theft. Therefore, it reasons, “either offense constituted a felony of the third degree.” Brief for Commonwealth at 17. This argument is likewise without merit. In the first place, appellant was not charged with retail theft, third offense, and therefore was not, and could not have been, convicted of retail theft as a felony of the third degree, Commonwealth v. Coleman, 289 Pa.Super. 221, 433 A.2d 36 (1981); Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979). But more fundamentally, if appellant had been charged with retail theft, third offense, that could in no way authorize, i.e., cure the impropriety of, his prosecution for and conviction of theft by unlawful taking. Nor was the lower court’s order permitting the prosecution harmless error. An improper prosecution and and conviction are not rendered harmless because the consequent sentence is concurrent rather than consecutive. See, Commonwealth v. Boerner, supra 281 Pa.Super. at 517 n. 13, 422 A.2d at 589 n. 13.

The judgment of sentence for theft by unlawful taking is vacated. The judgments of sentence for retail theft and criminal conspiracy are affirmed.

ROWLEY, J., files a concurring statement.

ROWLEY, Judge,

concurring:

I join in the judgment of the Court and in Judge Spaeth’s opinion. I do so, however, with the understanding that we are not in any way restricting or limiting the Legislative direction contained in § 3902 of the Crimes Code, 18 Pa.C.S. § 3902, or the statement of this Court in Commonwealth v. Morin, 237 Pa.Super. 533, 541-542 n. 3, 352 A.2d 189, 193 n. 3 (1975) that § 3902 of the Code means that a finding that the evidence is insufficient to sustain a conviction of the form of theft charged in the information “would not be fatal to the finding of guilt” where “the record contains clear and convincing evidence supporting beyond a reasonable doubt” the conclusion that appellant was guilty of conduct that constitutes one of the other forms of theft set forth in Chapter 39 of the Code.

      . On appellant’s petition for reconsideration of sentence, the lower court suspended the sentence for retail theft. See, Commonwealth v. Boerner, 281 Pa.Super. 505, 517, 422 A.2d 583, 589 (1980). This action was a nullity. By the time it was taken, appellant had filed his appeal to this court, thereby depriving the lower court of jurisdiction to resentence him. 42 Pa.C.S.A. § 5505, Pa.R.A.P. 1701; Commonwealth v. Smith, 257 Pa.Super. 435, 390 A.2d 1315 (1978).

      . Later the court attempted to suspend the sentence for retail theft. See footnote 1, supra.

      . The Commonwealth argues that even regarded as retail theft, appellant’s offense is a felony of the third degree. We consider this argument below.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    461 A.2d 814
    Judy D. HARVEY, Administratrix of the Estate of Richard L. Harvey, Deceased and Judy D. Harvey, In her own right, Appellant, v. David Lee HASSINGER.
    Superior Court of Pennsylvania.
    Argued May 11, 1982.
    Filed June 3, 1983.

      Jack E. Feinberg, Philadelphia, for appellant.
    Joseph W. Mullin, Huntingdon, for appellee.
    Before CAVANAUGH, CHULLO and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This case involved a trespass action for wrongful death and survival action arising out of the death of Richard L. Harvey who was killed when struck by an automobile which was driven by the appellee, David Lee Hassinger. Mr. Hassinger had been drinking heavily on November 8, 1975. The testimony established that he consumed a pint of liquor and a quantity of beer in excess of twenty quarts. While in this intoxicated condition he attempted to operate his motor vehicle and in the process drove up on the sidewalk and struck Mr. Harvey. As a result of the injuries received in the accident which occurred on the early morning of November 9, 1975, Mr. Harvey died.

Judy D. Harvey, as administratrix of her deceased husband’s estate and in her own right commenced an action in wrongful death and a survival action against appellee. Trial was held before Terrizzi, J. and a jury and a verdict was entered against the appellee in the amount of $45,000.00 in the wrongful death action and for $250,000.00 in the survival action. Punitive damages were- also awarded in the amount of $10,000.00. Appellee filed motions for new trial and for judgment non obstante verdicto and his motion for new trial was granted by Taylor, P.J. An appeal has been taken to this court from the order awarding a new trial.

The first issue is whether punitive damages were properly awarded by the jury in this case. With respect to the wrongful death action it is clear that punitive damages are not allowed. The Wrongful Death Act, Act of April 26, 1855 P.L. 309, 12 P.S. § 1602 sets forth the persons entitled to recover damages. As pointed out in the early case of Pennsylvania Railroad Company v. Vandever, 36 Pa. 298, 304 (1860): “The sum to be recovered [under Pennsylvania's Wrongful Death Act] is, therefore, the pecuniary loss which the plaintiffs have suffered from the death of their relative; and this is made more certain by the provision, that no other relative, and of course no other person, than those named, can recover anything ...” (Emphasis added). See also, Pennsylvania Railroad Company v. Henderson, 51 Pa. 315 (1865); Palmer v. Philadelphia, Baltimore and Washington Railroad Company, 218 Pa. 114, 66 A. 1127 (1907). The question as to whether punitive damages are permitted in a wrongful death action is set to rest in Pennsylvania Railroad Company v. Henderson, 51 Pa. 315, 323 (1865) wherein it is stated that damages recoverable under Lord Campbell’s Act, the forerunner of Pennsylvania’s Wrongful Death Act do “not include the loss or suffering of the deceased, nor does it include the mental suffering of the survivor occasioned by such death, and it excludes all questions of exemplary damages. ” (Emphasis added).

A more difficult question is whether punitive damages are allowed under The Survival Act. The law pertaining to survival actions in effect at the time of this accident on November 9, 1975, is found in the Act of June 30, 1972, P.L. 508 No. 164, 20 P.S. § 3371 and provides:

§ 3371. Actions which survive
All causes of action or proceedings, real or personal, except actions for slander or libel, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.

In a decision prior to the Pennsylvania No-Fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101, et seq., the federal district court allowed punitive damages where reprehensible conduct resulted in death. See Hennigan v. Atlantic Refining Company, 282 F.Supp. 667 (E.D.Pa.1967), affirmed 400 F.2d 857 (3 Cir.1968). The court stated at 282 F.Supp. at 683 “No mention is made [in The Survival Act] of damages per se. We see no reason to read into the act a limitation on the nature or amount of recovery. Certainly, the legislature was aware that the courts of Pennsylvania recognized punitive damages in an appropriate case, when they passed the act.” In another pre-no-fault decision, a trial court considered the question of punitive damages in a survival action. In Cramer v. Noonan Engineering Company, 86 York L.R. 160 (1973) the plaintiff brought only a survival action seeking compensatory damages and in a separate count sought punitive damages. Parenthetically, it is noted in our case that the appellant in her trespass action for wrongful death and survival action did not seek punitive damages in the complaint. In the Cramer case the lower court dismissed the defendant’s preliminary objections to the complaint and held that while punitive damages are excluded in a wrongful death action, they may be claimed in survival actions. The court stated at 86 York L.R. 162:

In survival actions, however, being causes which the decedent could have asserted on his own behalf but for his death for injuries and loss inflicted upon him, we hold, as did Hennigan, that there appears to be no basis in precedent or in logic to exclude the punitive damages which the decedent could have sought had he not died.

The appellant contends that the jury properly awarded punitive damages in the instant case and relies on Focht v. Rabada, 217 Pa.Super. 35, 268 A.2d 157 (1970). That case was also decided prior to the effective date of the Pennsylvania No-Fault Motor Vehicle Insurance Act, which became effective on July 19, 1975. In the Focht case it was determined that punitive damages were permissible when the act was performed “with reckless indifference as well as with bad motive.” 217 Pa.Super. 38, 268 A.2d 159.

In a survival action the decedent’s estate may recover punitive damages only if the decedent could have recovered them had he lived. As pointed out in McClinton v. White, 285 Pa.Super. 271, 277, 427 A.2d 218, 221 (1981):

A survival action, unlike a wrongful death action, is not a new cause of action, but, “merely continues in his personal representative the right of action which accrued to the deceased at common law____” Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659, 661 (1942). In a survival action, the cause of action arises out of the injury, not out of the death. The estate is substituted for the decedent, and its recovery is based upon the rights of action which were possessed by the decedent at his death.

To determine whether the decedent could have recovered punitive damages had he lived we must turn to the Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. which was in effect at the time of the accident in this case. The Act in Section 301 abolishes tort liability for injuries except in certain ennumerated situations. See 40 P.S. § 1009.301. The case of Reimer v. Delisio, 296 Pa.Super. 205, 210, 442 A.2d 731, 733 (1982) has placed beyond peradventure the rule that punitive damages are not recoverable under the No-Fault Act for gross negligence or reckless disregard as the court stated therein:

We are persuaded that the initial clause of Section 1009.301 of our No-Fault Act explicitly abolished all causes of action falling within the ambit of the Act; and, consequently abolished punitive damages for gross negligence, reckless disregard, and the like. Subsection (a) of that Section provides:
Partial Abolition.—Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance and use of a motor vehicle, except that____
There follow exceptions which do not specifically refer to liability for gross negligence, although intentional conduct is so excepted.
We are not persuaded, either, that punitive damages for recklessness or gross negligence are implicitly preserved in subsections (a)(4) or (a)(5) of Section 301 of the Act. Subsection (a)(4) provides:
A person remains liable for loss which is not compensated because of any limitation in accordance with section 202(a), (b), (c) or (d) of this act____” [Emphasis added.]
(Emphasis added).

In the instant trespass action there is. no indication that the appellee engaged in intentional misconduct as far as causing the death of Mr. Harvey. The appellant contends with reference to punitive damages that they are proper where “an individual’s conduct is grossly negligent and whose conduct is outrageous.”

The trial court charged on the question of punitive damages as follows:

If you find that the Defendant’s conduct was a substantial factor in bringing about the harm to the Plaintiff’s decedent and if you find that the conduct of the Defendant was outrageous, you may award punitive damages as well as compensatory damages about which we have just talked, in order to punish the Defendant for his conduct and to deter the Defendant and others from the commission of like acts in the future.
A person’s conduct is outrageous when he acts with a bad motive or when he acts with reckless indifference to the interests of other people.

Counsel for the appellee specifically objected to this portion of the charge on punitive damages and the issue is preserved for appeal. It is not proper to award punitive damages in a survival action where the claim for such damages is based on the gross negligence of the defendant. The court erred in charging on punitive damages and the jury’s verdict as to punitive damages must be set aside.

The second issue is whether appellant’s closing argument to the jury contained statements that were so unfair, inflamatory and prejudicial as to require a new trial. Counsel for the appellant referred to two defense witnesses, Mrs. Springer and Debbie Bryner, who were sequestered during trial. Referring to Mrs. Springer, the mother of the plaintiff’s decedent, he stated:

she didn’t know or do that. She is out talking with Debby Bryner for two days and everybody else is back that way. She’s back this way with her and nobody is in cohorts [cohoots] She sued Debby Bryner somehow or another. Her other lawyer is not here.

Counsel for the appellant further stated:

She [referring to Debby Bryner] was a defendant in another suit and she is back there with the lady [referring to Mrs. Springer] and they discontinued that suit and all kinds of shenanigans going on and they don’t have any interest?

These remarks are so vague as not to require a new trial. The reference to “cahoots” and “shenanigans” should not have been made but in the context of this prolonged trial it does not compel us to find such prejudice that appellee did not receive a fair trial.

In addition, counsel for appellant stated:

Here is a man who got himself so liquored up that it is remarkable that he could stand on his feet and put one foot in front of the other. He got into a car and it is incredible he could even turn the key on. He drove it at Hell’s bent, killed somebody, fled the scene of the accident, was so bloody drunk he didn’t even know he had an accident until somebody told him an hour later.”
And the defense would attempt to bastardize that relationship. That makes sense. If somebody is going to get liquored up and kill somebody it makes sense that the same person would attempt to do that. Don’t try me. I only got drunk and killed somebody.
“and didn’t know what he was doing or where he was going; come across here and murdered Mr. Harvey, who was on the pavement where he had a right to be; then didn’t have enough sense or good judgment to get out of his car and see what he did and proceeded to keep on going, running over him some more so that he came slithering out from the back wheel of the car like a piece of thing that you might put under your wheel to get off the ice.”

Referring to the defendant in a civil case as one who “murdered” the decedent is clearly improper. However, the term was not used in the technical sense of defining a crime but rather in the broader sense of indicating outrageous conduct. Appellee denied responsibility and therefore appellant was put to the burden of proving the appellee’s liability although no defense was offered as to liability. The evidence as to the accident and the consumption of alcohol preceding it painted a picture of appalling neglect. While it was improper for appellant’s counsel to refer to the appellee as having “murdered” the decedent we cannot say that in the context of this trial that the remark was so prejudicial as to require a new trial. Counsel for the appellee objected to the remark in the court below as he did to all of the remarks which are now claimed to be improper and he moved for a mistrial. The withdrawal of a juror for improper remarks is within the discretion of the trial judge. Piwoz v. Iannacone, 406 Pa. 588, 178 A.2d 707 (1962); Easter v. Hancock, 237 Pa.Super. 31, 346 A.2d 323 (1975). The trial court denied the appellee’s motion for mistrial and it was not the trial court that granted his motion for a new trial but rather, his successor. The grant of a new trial for improper remarks is within the discretion of the trial judge. Stevenson v. Pennsylvania Sports and Enterprise, Inc., 372 Pa. 157, 93 A.2d 236 (1953). Further, an appellate court’s “review of the grant of a new trial is limited to cases of gross abuse of discretion by the trial judge or the application of erroneous rules of law by the trial court.” Atene v. Lawrence, 456 Pa. 541, 318 A.2d 695, 697 (1974). (Emphasis added). See also, Canery v. Southeastern Pennsylvania Transportation Authority, 267 Pa. Super. 382, 406 A.2d 1093 (1979).

The law expressly grants broad discretion to the trial judge as he has referred the courtroom battle and has a familiarity with the proceedings that cannot be achieved by one who peruses the printed page. This is not to say that in this case the successor to the trial judge did not have the discretion to grant a new trial, but his discretion would be no greater than that of an appellate court, as he suffered the same disability that we do, namely, our review is limited to the printed record.

The final part of appellant’s argument that the appellee complained about in the court below was as follows:

“Juries sometimes start looking at numbers and, admittedly, they are big numbers and they worry. Oh, that’s not your province to do. We lawyers will work it out to get the verdict correct in the case. You don’t have to be concerned about anything. The only thing you have to be concerned about is whether it is fair and just and reasonable and reasonable, by the way, doesn’t mean cheap. It’s reasonable in a sense of what is fair. Don’t be concerned where it is to come from and all that. That’s a problem for lawyers and I am sure we will work it out.”

It is improper to tell the jury that the lawyers will work things out and correct the verdict. It is also improper to argue to the jury that they should not be concerned about “where it [presumably the money to pay the verdict] is to come from and all that.” However these remarks were ambiguous and no complaint has been made by appellee concerning the amount of compensatory damages. Further, appellant’s counsel did admonish the jury to be fair, just and reasonable in awarding a verdict.

The trial judge refused the appellee’s motion for a mistrial as he believed the remarks did not warrant a new trial. As pointed out in Abrams v. Philadelphia Suburban Transportation Company, 438 Pa. 115, 119, 264 A.2d 702, 704 (1970):

Whether a lawyer’s argument to the jury transgresses the bounds of legitimate advocacy is primarily for the discretion of the trial judge, and an appellate court will not interfere with the exercise of this discretion, unless the record manifests that it was clearly abused.

While we do not condone the parts of the argument which were objected to by the appellee, the trial court did not commit reversible error in refusing to grant a mistrial. The order granting a new trial is reversed and the verdict for punitive damages in the amount of $10,000.00 is stricken.

Affirmed in part and reversed in part.

CIRILLO, J., concurs in result.

      . The no-fault act also provides in 40 P.S. § 1009.301(a)(5) as follows:
      (5) A person remains liable for damages for non-economic detriment if the accident results in:
      (A) death or serious and permanent injury; or
      In this case the accident resulted in death so that appellee would remain liable for non-economic detriment. However, Section 103 of the act defines non-economic detriment, and expressly provides that "The term does not include punitive or exemplary damages.” See also Reimer v. Delisio, supra.

      . In Smith v. Evans, 421 Pa. 247, 219 A.2d 310 (1966) the Supreme Court was faced with the problem of an intemperate argument to the jury. The court stated at 421 Pa. 250, 251, 219 A.2d 312:
      The defendant seeks a new trial on the further ground that the Trial Court erred in not withdrawing a juror and declaring a mistrial because of alleged inflammatory remarks by plaintiff's counsel in his address to the jury. We have noted the excerpts from the speech to which the defendant’s counsel makes particular objection and we do not find that they would have warranted the truncation of the trial with an inevitable new trial. It is true that in some instances plaintiffs counsel went to the very brink of perfer-vid speech which would appeal to the emotions of the jurors, imperilling the derailing of judgment and the substitution therefor of vindictive reprisal against the defendants for the breach of the law with which they were being charged. We are satisfied, however, that plaintiff’s counsel did not actually take the plunge over the cliff of irretrievable error and the judge did not abuse his discretion in not taking the action which would have necessitated the trial of this case for a third time.


author: CIRILLO, Judge:

text:
    461 A.2d 820
    COMMONWEALTH of Pennsylvania v. Vincent COURTS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 27, 1983.
    Filed June 3, 1983.
    Petition for Allowance of Appeal Denied Oct. 3, 1983.

      John Francis Lyons, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   CIRILLO, Judge:

This is an appeal from an Order of the Court of Common Pleas of Dauphin County, dated September 30, 1981, denying the appellant’s supplemental petition for relief pursuant to the Post Conviction Hearing Act.

On September 9, 1974, appellant Vincent Courts, after trial by jury, was convicted of murder in the first degree' for the killing of Ralph Jones, and attempted murder of Alan Jones arising from the same incident. Post-trial motions were filed, argued and denied. On June 12, 1975, the appellant was sentenced to a term of life imprisonment on the murder conviction, and to a term of not less than five nor more than ten years on the conviction of attempted murder. A direct appeal was filed, and the Supreme Court of Pennsylvania affirmed the convictions.

On February 2, 1981, appellant filed a petition pursuant to the Post Conviction Hearing Act (PCHA). The PCHA Court appointed PCHA counsel on February 3, 1981. On July 16, 1981, appellant filed a supplemental petition under the Post Conviction Hearing Act. The PCHA Court denied appellant’s petition for relief without a hearing. On September 29, 1981,' appellant filed a motion for the appointment of new counsel and a motion to remove the court appointed PCHA attorney from his case. These motions were denied. Appellant, on October 13, 1981, filed on his own behalf a notice of appeal from the denial of his PCHA petition. On October 28, 1981, the PCHA Court appointed new counsel to represent the appellant and this appeal followed.

Appellant has raised four issues on this appeal: (1) whether an individual charged with murder has an absolute right to the severance of the other charges for separate trials; (2) whether the failure of trial counsel to timely move for a severance of the murder and attempted murder indictments constituted ineffective assistance of counsel; (3) whether the application of a rubber-stamp facsimile signature on the indictments rendered them null and void; and (4) whether the failure of trial counsel to object to the use of a rubber-stamp facsimile signature on appellant’s indictment constituted ineffective assistance of counsel.

As to the first issue raised, appellant contends that the consolidation for trial of the indictments for murder and attempted murder was in violation of Pa.R.Crim.P. Rule 219. This rule dealt specifically with the joinder and severance of offenses and defendants in indictments. It provided that,

Rule 219. Joinder of Offenses and Defendants in Indictments
(a) Where murder is alleged in an indictment, no other counts may be joined in the indictment except voluntary and involuntary manslaughter.
(b) Two or more offenses of any grade, other then murder, may be charged in the same indictment if they are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. There shall be a separate count for each offense charged.
(c) Subject to the limitations of clause (b), two or more defendants may be joined in the same indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. They may be charged in one or more counts together or separately. All defendants need not be charged in each count.
(d) The court, of its own motion, or on application of a party, may order separate trials of counts, grant a severance as to any defendant, or provide other appropriate relief.

Although Rule 219 provided on its face only for joinder of separate offenses in a single indictment, the Supreme Court treated it as equally applicable to the consolidation of separate indictments for trial. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715, (1981); Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690, (1975); Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975); Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973). Thus, when examining the propriety of consolidation of charges, the Supreme Court has stated that the first task is to determine whether the separate indictments consolidated for trial could have been joined in a single indictment as provided in Rule 219(b). Commonwealth v. Lasch, supra, 464 Pa. at 583, 347 A.2d at 695.

It is clear under the language of Rule 219, that the charges giving rise to the instant case were not of the type which could be joined in a single indictment. Rule 219(b) specifically exempted a murder charge from those classes of charges which may be joined in an indictment. Furthermore, Rule 219(a) explicitly prohibited the joinder of a murder charge with any other count besides voluntary or involuntary manslaughter. Therefore, under the reasoning of Lasch, the charges of murder and attempted murder could have been severed and afforded separate trials.

However, appellant urges this Court to interpret the language of Rule 219 as providing an absolute right to a severance of the charges which were tried in the instant case, thereby entitling appellant to new, separate trials regardless of whether a timely pretrial motion for severance was filed. We find this contention to be without merit.

The Courts of this Commonwealth have declined to adopt a rule requiring an absolute right to severance of charges. Commonwealth v. Peterson, supra; Commonwealth v. Morris, supra. Instead, the general policy of the Commonwealth has been to encourage the consolidation of indictments whenever the needs of judicial economy will be advanced. Commonwealth v. Rose, 265 Pa.Super. 159, 401 A.2d 1148 (1979); Commonwealth v. Lasch, supra.

The Supreme Court recently addressed this issue in Commonwealth v. Morris, supra. There, the defendant urged the Court to adopt The American Bar Association Standard, providing for an absolute right to severance of offenses for trial purposes. The Court stated,

Adoption of the American Bar Association’s standard, providing for an absolute right to severance of the offenses, is appealing because of its simplicity. This rule, however, raises the question of whether implementation of such a broad right to severance is feasible in light of the heavy demands on today’s criminal courts. Furthermore, in situations where evidence of one crime would be admissible at a separate trial of another, a rule requiring automatic severance would impose an undue burden on the administration of justice without providing any real benefit to the defendant. Therefore, it is the opinion of this Court that the middle course strikes the balance that is to be desired.

493 Pa. at 175, 425 A.2d at 720.

Furthermore, the Commonwealth is required to bring all known charges against a defendant which arise out of the same criminal episode in a single proceeding. Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), explained, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974); Commonwealth v. Green, 232 Pa.Super. 134, 335 A.2d 493 (1975). The charges of first degree murder and attempted murder arose out of a single criminal episode; a car accident and occurences following the car accident gave rise to the original prosecution of the appellant.

Therefore, we find that appellant has no absolute right to a severance of the murder charge from the attempted murder charge and is thereby not entitled to new and separate trials on this ground.

As to the second issue raised, appellant contends that the failure of trial counsel to timely move for a severance for trial of the murder indictment and the indictment for attempted murder constituted ineffective assistance of counsel entitling the appellant to a new trial.

The test for determining whether a defendant has been denied effective assistance of counsel is well established. “... [CJounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” (Emphasis in original) Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Moreover, in order to be entitled to relief under a theory of ineffective assistance of counsel, it must appear that counsel’s action or inaction was prejudicial to the defendant. See: Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Gordon, 254 Pa.Super. 267, 385 A.2d 1013 (1978). When it cannot be determined from the record whether counsel acted pursuant to a reasoned course, the proper remedy is to remand the record for an evidentiary hearing on that issue. Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978). However, where it is clear from the record that the acts or omissions claimed to constitute ineffective assistance are either devoid of merit or within the realm of trial strategy, such a remand is not necessary. Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978). Applying these standards to the facts of the instant case, we find that appellant was not denied his constitutional right to effective assistance of counsel.

Appellant contends that he was unfairly prejudiced through the joint trial of the murder and attempted murder charges. The Courts of this Commonwealth have given cognizance to several kinds of prejudice which may result from the consolidation of separate offenses. These are:

(1) defendant may become embarrassed or confounded in his defense; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt, when, if considered separately, it would not so find.

Commonwealth v. Peterson, supra, 453 Pa. at 194, 307 A.2d at 267.

Appellant alleges that the jury used the evidence of the attempted murder charge to convict him of the first degree murder charge or cumulated the evidence to find guilt under both charges.

Evidence of one crime is inadmissible against a defendant being tried for another crime because the fact of the commission of one offense is not proof of the commission of another. Commonwealth v. Peterson, supra; Commonwealth v. Morris, supra. However, there sometimes exist special circumstances which operate as exceptions to the general rule and bring the case within the equally well established principle that evidence of other crimes is admissible when it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial,—in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955); Commonwealth v. Peterson, supra; Commonwealth v. Morris, supra. When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value. Commonwealth v. Peterson, supra.

In the instant case, it is clear that the evidence presented regarding the attempted murder charge would have been admissible in a separate trial for the first degree murder charge to show motive, intent, absence of mistake, and logical connection between the crimes. As such, the failure of counsel to make a motion to sever the charges for trial did not result in undue prejudice to the appellant.

Furthermore, a review of the record reveals that the particular course chosen by trial counsel had some reasonable basis designed to effectuate appellant’s interests. By not moving to sever the charges, counsel avoided multiple trials, the potential use of one crime to impeach at the trial of the other, the higher costs to the appellant in defending two cases, and alienating the trial judge. The failure to sever the charges for trial appears to have been the result of the sound planning of trial strategy. Commonwealth v. Wade, supra. The appellant or the Court may not believe, in hindsight, that this was the most reasonable strategy. However, this does not constitute sufficient grounds for a finding of ineffective assistance of counsel.

Appellant’s third contention is that the application of a rubber-stamp facsimile signature on the indictments giving rise to the instant case rendered the indictments null and void as being unsigned.

Pa.R.Crim.P. Rule 213(a) provides that “[a]n indictment shall be signed by the attorney for the Commonwealth ____” Whether a rubber stamp facsimile constitutes a “signature” under Rule 213(a) has not been specifically addressed by the Courts of the Commonwealth. Appellant strongly urges this Court to apply to indictments the rule which requires a manual signature of the district attorney to be placed on bills of information. However, appellant fails to distinguish the inherent difference between an indictment and an information.

The policy behind the requirement of a manual signature on an information is well established. Recently, in Commonwealth v. Veneri, 306 Pa.Super. 396, 452 A.2d 784 (1982), this Court, sitting en banc, stated its reasons for this requirement.

Under Pa.R.Crim.P. 225(a) the attorney for the Commonwealth has the discretionary power to either proceed with charges by information or move to nolle prosequi the charges. The district attorney or his designee is also mandated to inquire into and make full examination of all the facts and circumstances connected with each case to determine if the filing of an information is warranted 42 Pa.C.S.A. § 8931(d). Thus the act of approving the information is one fraught with grave consequences not the least of which may be the career, reputation and very freedom of the defendant. It would demean the significance of this fateful document if we were to interpret the words “shall be signed” to permit affixing a rubber stamp facsimile to the information. We would thus reduce the required attestation to a mere clerical mechanism no different or more deliberative, for example, than assigning the information a file number for office convenience. It would be simpler and just as meaningful to have the name of the attorney for the Commonwealth preprinted on the information form. It is, therefore, our belief that only a written indication by the district attorney or his designee, that the charges contained in an information have been considered and approved satisfy the “signature” requirement of Pa.R.Crim.P. 225(b). While the prosecution may find the personal signature requirement of Pa.R.Crim.P. 225(b) to be burdensome, any inconvenience is far outweighed by the need for a deterrent against frivolous charging of an accused.

806 Pa.Super. at 402-03, 452 A.2d at 787. (Emphasis added).

The final presentment of a bill of indictment by a grand jury is the culmination of a strictly mandated procedural process. At least fifteen jurors must review the charges in the bill of indictment presented to them by the district attorney. Each juror as well as the forman must be administered an oath prior to consideration of the indictment. Each witness heard by the grand jury must be sworn in and his name placed on the bill of indictment. The bill of indictment may be approved only “if it receives the affirmative vote of at least twelve grand jurors.” The foreman of the grand jury is directed to personally sign the bill. If, after due consideration by the requisite number of jurors, the bill is dismissed, the Court is directed to either dismiss the defendant or reduce his bail if proper under the circumstances.

In recognition of the many safeguards inherent in the grand jury process, not present in the process of filing a bill of information, our Court has stated,

A bill of indictment presented by a grand jury has indicia of reliability not bound in a bill of information. The grand jury has made an independent determination of the sufficiency of the evidence which need merely be ratified by the district attorney. In the case of a bill of information, however, it is the prosecutor alone who must decide whether to bring the defendant to trial. When the vehicle for initiating a criminal trial (i.e., the information) is unsigned, it is not at all apparent that a reasoned evaluation of the advisability of instituting a criminal trial has been made. The signature on the information is, therefore, a vital ingredient which guarantees the authenticity and reliability of the document.

Commonwealth v. Belcher, 258 Pa.Super. 153, 155-156, 392 A.2d 730, 731 (1978), rev’d on other grounds, Commonwealth v. Veneri, 306 Pa.Super. 396, 452 A.2d 784 (1982).

In line with this reasoning, the grand jury, when faced with a bill of indictment, decides whether to bring the defendant to trial. The signature of the foreman, not the district attorney, is the necessary indication that “a reasoned evaluation of the advisability of instituting a criminal trial has been made.” Commonwealth v. Belcher, supra, 258 Pa.Super. at 156-157, 392 A.2d at 731. It is therefore the signature of the foreman, not the district attorney, which guarantees the reliability and authenticity of the bill of indictment and acts as a deterrent against the frivolous charging of an accused. The foreman's signature appears on the bills of indictment charging the appellant in the instant case.

We therefore hold that a rubber-stamp facsimile signature of the district attorney on a bill of indictment is adequate to fulfill its purpose of ratifying the determination of the grand jury and thereby constitutes a proper signing for the purpose of Rule 213(a). The need for a manual signature by the district attorney is far less in the case of a bill of indictment than in the case of a bill of information as the duties of the district attorney in reviewing a bill of information are superceded by the grand jury’s finding of probable cause in passing on a bill of indictment. As such, the rubber-stamp facsimile of the district attorney’s signature on the indictments charging the appellant in the instant case does not render such indictments null and void and the present charges may not be dismissed on this ground.

We find appellant’s fourth contention, that the failure of appellant’s trial attorney to object to the use of the rubber-stamp facsimile signature on appellant’s indictments constituted ineffective assistance of counsel, to be without merit. It is a well established principle in this Commonwealth that counsel will not be deemed to have been ineffective for failing to assert a baseless or frivolous claim. Commonwealth v. Davis, 279 Pa.Super. 218, 420 A.2d 1111 (1980); Commonwealth v. Rainey, 282 Pa.Super. 15, 422 A.2d 652 (1980). It is only when the claim which has been forgone was of arguable merit that inquiry must be made into the basis for counsel’s decision not to pursue the matter. Commonwealth v. Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979); Commonwealth v. Davis, supra.

Therefore, our holding herein that a rubber-stamp facsimile signature of the district attorney does not render a bill of indictment invalid, negates any basis upon which such claim could have been predicated. Further inquiry into the attorney’s reasons for failing to assert this claim need not be undertaken and appellant’s trial counsel cannot be deemed ineffective for failing to raise it.

Additionally, it must be noted that the appellant waited six years from the time the jury rendered its verdict in this case until he filed a petition for post-conviction relief. A lapse of time in filing a PCHA petition is a factor in assessing its merit. Commonwealth v. Alexander, 495 Pa. 26, 29, 432 A.2d 182, 183 (1981); Commonwealth v. Strickland, 306 Pa.Super. 516, 452 A.2d 844 (1982).

Moreover, this Court has recently stated that, “ineffective assistance of counsel has become the last ditch ploy of defendant’s in criminal cases and should not be encouraged.” Commonwealth v. Strickland, supra, 306 Pa.Super. at 526, 452 A.2d at 849; Commonwealth v. Alberts, 285 Pa.Super. 10, 12, 426 A.2d 678, 679 (1981). We may not permit a defendant to couch his claims for post-conviction relief in terms of ineffective assistance of counsel in situations where it is clear that counsel provided reasonable and conscientious legal services.

Accordingly, we affirm the order of the Court below.

      . The pertinent statute in effect at the time of this case was Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 2502(a).

      . Id. § 901(a).

      . Commonwealth v. Courts, 468 Pa. 613, 364 A.2d 684 (1976). See this case for a complete discussion of the relevant facts.

      . Act of January 25, 1966, P.L. (1965) 1580, § 1; 19 P.S. §§ 1180-1 et seq.

      . 42 Pa.C.S.A. (hereinafter cited as Rule 219).

      . Rule 219 was amended in 1981. It presently provides,
      Rule 219. Joinder of Offenses and Defendants in Indictments
      (a) Two or more offenses of any grade may be charged in the same indictment if

        (1) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion or
      (2) the offenses charged are based on the same act or transaction. There shall be a separate count for each offense charged.
      (b) Subject to the limitations of paragraph (a), two or more defendants may be joined in the same indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. They may be charged in one or more counts together or separately. All defendants need not be charged in each count.
      Pa.R.Crim.P.' Rules 1127 and 1128, which did not exist at the time of the trial in the instant case, deal specifically with the consolidation of separate indictments for trial and the severance of offenses for trial. These rules provide,
      Rule 1127. Joinder—Trial of Separate Indictments or Informa-tions
      A. STANDARDS
      (1) Offenses charged in separate indictments or informations may be tried together if
      (a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or
      (b) the offenses charged are based on the same act or transaction.
      (2) Defendants charged in separate indictments or informations may be tried together if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.
      B. PROCEDURE
      (1) Written notice that offenses or defendants charged in separate indictments or informations will be tried together shall be served on the defendant at or before arraignment. A copy of the notice shall be filed with the clerk of court.
      (2) When notice has not been given under paragraph B(l), any party may move to consolidate for trial separate indictments or informations, which motion must ordinarily be included in the omnibus pretrial motion.
      Rule 1128. Severance of Offenses or Defendants The court may order separate trials of offenses or defendants or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.
      42 Pa.C.S.A.

      . Joinder of offenses in an indictment or information is the act of the prosecutor, subject to review by the court. Consolidation is the procedure by which more than one indictment or information are brought together for a single trial. Consolidation is the act of the court. Commonwealth v. Morris, supra. In the instant case, separate indictments were filed. Therefore, we are dealing herein with the issue of consolidation, not joinder.

      . American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance, § 2.2 (Approved Draft, 1968). This section provides,
      Whenever two or more offenses have been joined for trial solely on the grounds that they are of the same or similar character, the defendant shall have a right to a severance of the offenses.
      Justice Roberts advocated the adoption of this rule in his dissenting opinion in Commonwealth v. Peterson, supra, 453 Pa. at 194, 307 A.2d at 272.

      . Appellant argues that the evidence presented at trial which related to the first degree murder charge was purely circumstantial and that when viewing the evidence of this charge separately from the evidence of aggravated assault, the jury would not have convicted the appellant of the murder charge. This matter was treated previously by our Supreme Court which held that the evidence was sufficient on all charges. Commonwealth v. Courts, 468 Pa. 613, 364 A.2d 684 (1976).

      . In Commonwealth v. Crawford, this Court stated that,
      The test is not whether other alternatives were more reasonable employing a hindsight evaluation of the record ... [T]he balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis. (Citations omitted).
      285 Pa.Super. 169, 179, 427 A.2d 166, 171 (1981).

      . 42 Pa.C.S.A.

      . Commonwealth v. Belcher, 258 Pa.Super. 153, 392 A.2d 730 (1981); Commonwealth v. Emanual, 285 Pa.Super. 594, 428 A.2d 204 (1981); Commonwealth v. Veneri, 306 Pa.Super. 396, 452 A.2d 784 (1982).

      . See generally Pa.R.Crim.P., Rules 200-211, 42 Pa.C.S.A.

      . Id.; Rule 201(a). This rule provides,
      (a) The grand jury shall consist of not less than fifteen nor more than twenty-three legally qualified persons.

      . Id.; Rule 206.

      . Id.; Rule 207.

      . Id.; Rule 210(b).

      . Id.; Rule 210(a).

      . Id.; Rule 210(d).

      . Appellant also contends that the decision in Commonwealth v. Emanuel, supra, that a rubber-stamp facsimile signature on a bill of information does not satisfy the signature requirement of Pa.R. Crim.P. 225(b), be applied retroactively to the instant case which was decided some six years before Emanuel. In light of our holding that a rubber-stamp facsimile signature constitutes a proper signing under Pa.R.Crim.P. 213(a), we do not find it necessary to herein address this issue.


text:
    461 A.2d 828
    COMMONWEALTH of Pennsylvania v. Vincent COURTS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 27, 1983.
    Filed June 3, 1983.

      John Francis Lyons, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   CIRILLO, Judge:

This is an appeal from the Order of the Court of Common Pleas of Dauphin County, dated September 30, 1981, denying the appellant’s supplemental petition for relief under the Post Conviction Hearing Act (PCHA).

On March 24, 1974, appellant was apprehended by three members of the Harrisburg Police Department pursuant to a warrant for his arrest for attempted murder. The appellant was taken into custody and brought by automobile to the Harrisburg City Hall parking lot. Upon exiting the unmarked police vehicle, the appellant pulled out a gun and pointed it at the head of one of the police officers. At that point, one of the other officers shot the appellant, and he was subdued without further incident. The appellant was charged with aggravated assault.

On March 19, 1975, appellant was tried and convicted of aggravated assault by a jury and sentenced to a term of imprisonment of not less than five nor more than ten years at a state correctional institution. No post-trial motions were filed, nor was a direct appeal taken. However, some six years after his conviction, appellant filed a petition for post-conviction relief pursuant to the Post Conviction Hearing Act. The PCHA Court appointed new counsel, and on July 16, 1981, appellant filed a supplemental petition for relief under the Act. On October 1, 1981, the supplemental petition was denied by the PCHA Court without a hearing. On October 13, 1981, appellant filed on his own behalf a notice of appeal from the denial of his PCHA petition and a motion for the appointment of new counsel for this appeal. The PCHA Court appointed new counsel on October 28, 1981, and this appeal followed.

Appellant contends that his trial counsel was ineffective for (1) failing to conduct voir dire examination of prospective jurors or to exercise peremptory challenges; (2) failing to object to the use of a rubber-stamp facsimile signature of the district attorney on the indictment charging him with aggravated assault; and for (3) failing to file post-trial motions or to take an appeal. We affirm the determination of the PCHA Court.

The test for ascertaining whether a defendant has been denied effective assistance of counsel is well established. “... [C]ounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Moreover, in order to be entitled to relief under a theory of ineffective assistance of counsel, it must appear that counsel’s action or inaction was prejudicial to the defendant. See: Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Gordon, 254 Pa.Super. 267, 385 A.2d 1013 (1978). When it cannot be determined from the record whether counsel acted pursuant to a reasoned course, the proper remedy is to remand the record for an evidentiary hearing on that issue. Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978). However, where it is clear from the record that the acts or omissions claimed to constitute ineffective assistance are either devoid of merit or within the realm of trial strategy, such a remand is not necessary. Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978).

Appellant first contends that trial counsel was ineffective for failing to conduct voir dire examination of prospective jurors or to exercise peremptory challenges. Appellant, however, fails to allege he suffered any specific prejudice. Instead, appellant only generally contends that because he is black and because there was publicity regarding his involvement in other crimes, he was prejudiced by the lack of voir dire examination or the failure of his trial counsel to exercise peremptory challenges. The appellant makes no attempt to show racial prejudice in the composition of the jury panel or any systemic exclusion of blacks from the panel. Furthermore, the appellant does not specifically allege how the effect of any pretrial publicity on the minds of the jurors prejudiced their decision in the instant case. This is clearly an insufficient basis upon which counsel could be held to be ineffective.

Appellant’s second contention is that trial counsel was ineffective for failing to object to the use of a rubber-stamp facsimile signature of the district attorney on the indictment charging the appellant in the instant case.

Pa.R.Crim.P. Rule 213(a) provides that “[a]n indictment shall be signed by the attorney for the Commonwealth ____” Whether a rubber-stamp facsimile constitutes a “signature” under Rule 213(a) has not been specifically addressed by the Courts of the Commonwealth. Appellant strongly urges this Court to apply to indictments the rule which requires a manual signature of the district attorney to be placed on bills of information. However, appellant fails to distinguish the inherent difference between an indictment and an information.

The policy behind the requirement of a manual signature on an information is well established. Recently, in Commonwealth v. Veneri, 306 Pa.Super. 396, 452 A.2d 784 (1982), this Court, sitting en banc, stated its reasons for this requirement.

Under Pa.R.Crim.P. 225(a) the attorney for the Commonwealth has the discretionary power to either proceed with charges by information or move to nolle prosequi the charges. The district attorney or his designee is also mandated to inquire into and make full examination of all the facts and circumstances connected with each case to determine if the filing of an information is warranted 42 Pa.C.S.A. § 8931(d). Thus the act of approving the information is one fraught with grave consequences not the least of which may be the career, reputation and very freedom of the defendant. It would demean the significance of this fateful document if we were to interpret the words “shall be signed” to permit affixing a rubber stamp facsimile to the information. We would thus reduce the required attestation to a mere clerical mechanism no different or more deliberative, for example, than assigning the information a file number for office convenience. It would be simpler and just as meaningful to have the name of the attorney for the Commonwealth preprinted on the information form. It is, therefore, our belief that only a written indication, by the district attorney or his designee, that the charges contained in an information have been considered and approved satisfy the “signature” requirement of Pa.R.Crim.P. 225(b). While the prosecution may find the personal signature requirement of Pa.R.Crim.P. 225(b) to be burdensome, any inconvenience is far outweighed by the need for a deterrent against frivolous charging of an accused.

306 Pa.Super. at 402-03, 452 A.2d at 787. (Emphasis added).

The final presentment of a bill of indictment by a grand jury is the culmination of a strictly mandated procedural process. At least fifteen jurors must review the charges in the bill of indictment presented to them by the district attorney. Each juror as well as the foreman must be administered an oath prior to consideration of the indictment. Each witness heard by the grand jury must be sworn in and his name placed on the bill of indictment. The bill of indictment may be approved only “if it receives the affirmative vote of at least twelve grand jurors. The foreman of the grand jury is directed to personally sign the bill. If, after due consideration by the requisite number of jurors, the bill is dismissed, the Court is directed to either dismiss the defendant or reduce his bail if proper under the circumstances.

In recognition of the many safeguards inherent in the grand jury process, not present in the process of filing a bill of information, our Court has stated,

A bill of indictment presented by a grand jury has indicia of reliability not bound in a bill on information. The grand jury has made an independent determination of the sufficiency of the evidence which need merely be ratified by the district attorney. In the case of a bill of information, however, it is the prosecutor alone who must decide whether to bring the defendant to trial. When the vehicle for initiating a criminal trial (i.e., the information) is unsigned, it is not at all apparent that a reasoned evaluation of the advisability of instituting a criminal trial has been made. The signature on the information is, therefore, a vital ingredient which guarantees the authenticity and reliability of the document.

Commonwealth v. Belcher, 258 Pa.Super. 153, 155-156, 392 A.2d 730, 731 (1978), rev’d on other grounds, Commonwealth v. Veneri, 306 Pa.Super. 396, 452 A.2d 784 (1982).

In line with this reasoning, the grand jury, when faced with a bill of indictment, decides whether to bring the defendant to trial. The signature of the foreman, not the district attorney, is the necessary indication that “a reasoned evaluation of the advisability of instituting a criminal trial has been made.” Commonwealth v. Belcher, supra, 258 Pa.Super. at 156-157, 392 A.2d at 731. It is therefore the signature of the foreman, not the district attorney, which guarantees the reliability and authenticity of the bill of indictment and acts as a deterrent against the frivolous charging of an accused. The foreman’s signature appears on the bill of indictment charging the appellant in the instant case.

We therefore hold that a rubber-stamp facsimile signature of the district attorney on a bill of indictment is adequate to fulfill its purpose of ratifying the determination of the grand jury and thereby constitutes a proper signing for the purpose of Rule 213(a). The need for a manual signature by the district attorney is far less in the case of a bill of indictment than in the case of a bill of information, as the duties of the district attorney in reviewing a bill of information are superceded by the grand jury’s finding of probable cause in passing on a bill of indictment. As such, the rubber-stamp facsimile of the district attorney’s signature on the indictment charging the appellant in the instant case does not render such indictment null and void and the present charges may not be dismissed on this ground. We find appellant’s fourth contention, that the failure of appellant’s trial attorney to object to the use of the rubber-stamp facsimile signature on appellant’s indictment constituted ineffective assistance of counsel, to be without merit. It is a well established principle in this Commonwealth that counsel will not be deemed to have been ineffective for failing to assert a baseless or frivolous claim. Commonwealth v. Davis, 279 Pa.Super. 218, 420 A.2d 1111 (1980); Commonwealth v. Rainey, 282 Pa.Super. 15, 422 A.2d 652 (1980). It is only when the claim which has been forgone was of arguable merit that inquiry must be made into the basis for counsel’s decision not to pursue the matter. Commonwealth v. Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979); Commonwealth v. Davis, supra.

Therefore, our holding herein that a rubber-stamp facsimile signature of the district attorney does not render a bill of indictment invalid, negates any basis upon which such claim could have been predicated. As such, further inquiry into the attorney’s.reasons for failing to assert this claim need not be undertaken and appellant’s trial counsel cannot be deemed ineffective for failing to raise it.

Finally, the appellant contends that his trial counsel was ineffective for failing to file post-trial motions or to pursue a direct appeal thereby obstructing his appellate rights. The PCHA Court specifically rejected this claim finding that the appellant had voluntarily and knowingly waived his post-trial and appellate rights. This finding involved a credibility determination and is amply supported by the record.

Furthermore, appellant’s trial and conviction in the instant case followed a trial and convictions on first degree murder and attempted murder charges. The arrest for the attempted murder charge was the event which led to the assault on the police officer, the conviction of which the appellant is now challenging. The appellant was represented by the same counsel in both cases. In the murder and attempted murder case, post-trial motions were filed in the appellant’s behalf. In the instant case, the appellant’s failure to make any post-trial motions or to object at sentencing to the absence of any post-trial motions following his conviction demonstrates the appellant knowingly waived his post-trial and appellate rights.

Appellant was sentenced for the aggravated assault on June 12, 1975, the same day he was sentenced for the murder and attempted murder. At that time, trial counsel indicated to the Court that he could not pursue the appeals. Appellant, however, obtained counsel who took appeals on the murder and attempted murder convictions. Appellant’s failure to obtain counsel for an appeal of the aggravated assault charge lends credibility to trial counsel’s statement that the appellant did not wish to appeal his conviction on this charge and as such was a knowing, understanding and voluntary decision resulting in a waiver under PCHA. Consequently, we cannot find that trial counsel was ineffective in this regard.

Additionally, it must be noted that the appellant waited six years from the time the jury rendered its verdict in this case until he filed a petition for post-conviction relief. A lapse of time in filing a PCHA petition is a factor in assessing its merit. Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981); Commonwealth v. Strickland, 306 Pa.Super. 516, 452 A.2d 844 (1982). Appellant’s prolonged silence here becomes deafening in light of the rights which the appellant claims he was denied.

Moreover, this Court has recently stated that, “Ineffective assistance of counsel has become the last ditch ploy of defendants in criminal cases and should not be encouraged.” Commonwealth v. Strickland, supra, 306 Pa.Super. at 526, 452 A.2d at 849; Commonwealth v. Alberts, 285 Pa.Super. 10, 12, 426 A.2d 678, 679 (1981). We may not permit a defendant to couch his claims for post-conviction relief in terms of ineffective assistance of counsel in situations where it is clear that counsel provided reasonable and conscientious legal services.

Accordingly, we affirm the order of the Court below.

      . Act of January 25, 1966, P.L. (1965) 1580, § 1; 19 P.S. §§ 1180-1 et seq.

      . Appellant was subsequently convicted of attempted murder and first degree murder. See: Commonwealth v. Courts, 468 Pa. 613, 364 A.2d 684 (1976) for a complete discussion of the relevant facts of this case.

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 2702, since amended.

      . In Commonwealth v. Davis, 267 Pa.Super. 370, 406 A.2d 1087 (1979), this Court dismissed appellant's contention that he was denied a fair trial because of the absence of blacks on the jury panel. The Court stated,

        [A]ppellant has failed to show that the panel from which his jury was selected did not represent a cross section of the community ... [T]he defendant has the initial burden of demonstrating a prima facie case of discrimination, then the burden shifts to the Commonwealth to rebut the evidence .... Appellant has made no attempt to show racial prejudice in the composition of the jury panel or any systematic exclusion of blacks from this panel.
      267 Pa.Super. at 375, 406 A.2d at 1089. Appellant in the instant case has clearly not demonstrated a prima facie case of discrimination when viewed in light of this reasoning.

      . Commonwealth v. Belcher, 258 Pa.Super. 153, 392 A.2d 730 (1981); Commonwealth v. Emanual, 285 Pa.Super. 594, 428 A.2d 204 (1981); Commonwealth v. Veneri, 306 Pa.Super. 396, 452 A.2d 784 (1982).

      . See generally Pa.R.Crim.P., Rules 200-211, 42 Pa.C.S.A.

      . Id.; Rule 201(a). This rule provides,
      (a) The grand jury shall consist of not less than fifteen nor more than twenty-three legally qualified persons.

      . Id.; Rule 206.

      . Id.; Rule 207.

      . Id.; Rule 210(b).

      . Id.; Rule 210(a).

      . Id.; Rule 210(d).

      . Appellant also contends that the decision in Commonwealth v. Emanual, supra, that a rubber-stamp facsimile signature on a bill of information does not satisfy the signature requirement of Pa.R. Crim.P. 225(b), be applied retroactively to the instant case which was decided some six years before Emanual. In light of our holding that a rubber-stamp facsimile signature constitutes a proper signing under Pa.R.Crim.P. 213(a), we do not find it necessary to herein address this issue.

      . The Post Conviction Hearing Act, 19 P.S. 1180-4(b), provides that an issue is waived if the petitioner knowingly and understandingly failed to raise it and it could have been raised on appeal, and the petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.

      . The record indicates that at the conclusion of his trial, the appellant was fully informed of his right to file post-trial motions and that the appellant understood these rights. At sentencing, the Court once again informed the appellant of his appeal rights. The appellant’s trial counsel alerted the Court to the fact that it would be impossible for him to serve as appellate counsel since he was leaving the country. The attorney stated that not only had he conferred with the appellant to discuss his appellate rights, but that his client had "not felt the need or necessity for an appeal from the case.” Notes of Sentencing at 3. Notwithstanding this statement, the Court asked the attorney, in the presence of the appellant, whether the matter had been discussed fully with his client and whether appellant had instructed the attorney not to proceed further. The attorney responded affirmatively. Notes of Sentencing at 4.

      . See: Commonwealth v. Courts, 468 Pa. 613, 364 A.2d 684 (1976).


author: HESTER, Judge:

text:
    461 A.2d 833
    William M. SPAIN, Appellant, v. Charles C. VICENTE, David E. Shiels, and Robert E. Feeley.
    Superior Court of Pennsylvania.
    Argued June 4, 1982.
    Filed June 10, 1983.

      Taras M. Wochok, Paoli, for appellant.
    Mark Edward Lichty, Philadelphia, for appellees.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   HESTER, Judge:

This is an appeal from an Order granting a Motion for Summary Judgment in favor of Robert E. Feeley. The underlying action alleged the defamation of appellant by Charles C. Vicente, David E. Shiels, and appellee Feeley. After closely scrutinizing the record before us, , we affirm.

On March 5, 1979, after an internal investigation, appellant was relieved of his position as Superintendent of Police, Eastern Region, for Conrail, and demoted to Lieutenant. Appellant thereafter initiated the instant lawsuit against Feeley, who was his former supervisor, and against Vin-cente and Shiels, both former Conrail police officers. The complaint was filed on May 1, 1979. Appellee responded with a timely answer containing new matter on May 23, 1979. After interrogatories were answered, depositions of appellant and appellee were conducted on May 5, 1980. Subsequently, appellee filed an amended answer with new matter on July 25, 1980. A Motion for Summary Judgment was filed by appellee on September 26, 1980, and was granted on February 25, 1981. Judgment was entered in favor of appellee and appellant thereafter perfected this appeal.

Appellant’s fundamental argument is that the lower court erred in granting appellee’s motion for a summary judgment. Summary judgment is appropriate only in those cases which are clear and free from doubt. Dippold v. Amherst Ins. Co., 290 Pa.Super. 206, 434 A.2d 203 (1981); Giannini v. Carden, 286 Pa.Super. 450, 429 A.2d 24 (1981); Dunn v. Teti, 280 Pa.Super. 399, 421 A.2d 782 (1980). Since the moving party, appellee herein, has the burden of proving that no genuine issues exist as to any material facts, we must examine the record in the light most favorable to the non-moving party. Dippold v. Amherst Ins. Co., supra; Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 425 A.2d 428 (1981), reversed, 496 Pa. 119, 436 A.2d 181 (1981); Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). In so doing, we accept as true all well-pleaded facts in appellant’s pleadings and give him the benefit of all reasonable inferences to be drawn therefrom. Brophy v. Philadelphia Newspapers Inc., 281 Pa.Super. 588, 422 A.2d 625 (1980). We are not limited to the pleadings in determining whether summary judgment was properly entered. Rather, we also consider depositions, answers to interrogatories, admissions on file, and affidavits, if any, in our search for issues of material facts. Pa.R.C.P. No. 1035.

The salient facts of appellant’s complaint reveal the following. On January 22, 1979, Officers Vincente and Shiels entered the office of appellee, the Director of Conrail police, and alleged that appellant was involved in various improprieties. Among other charges, appellant was purported to have required on-duty police officers to perform personal services for him, falsified employment assignments, and wrongfully removed railroad ties and ballast from Conrail. Appellant averred that appellee made similar utterances, used his position and power as Director of Police to intimidate individuals so that they would accuse appellant of improprieties, and to relieve appellant of his command. Appellant alleged that all of the accusations were false and were made by the parties knowing them to be false.

An action in defamation “is based on a violation of the fundamental right of an individual to enjoy a reputation unimpaired by false and defamatory attacks.” Berg v. Consolidated Freightways, Inc., 280 Pa.Super. 495, 500, 421 A.2d 831, 833 (1980). To sustain such an action, the plaintiff has the burden of proving, after the issue is properly raised:

“(a)(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.”

42 Pa.C.S.A. § 8343(a). The defendant can defend against an action in defamation by proving that the defamatory communication was true, the occasion on which it was published was of privileged character, or that the character of the subject matter of defamatory comment was a public concern. 42 Pa.C.S.A. § 8343(b).

Initially, we note that appellant’s allegations that appellee used his position and power to intimidate individuals so that they would accuse appellant of improprieties does not support a defamation action. The procurement of false and untrue accusations does not constitute an element of a defamation action. Appellant’s claim that appellee knowingly tittered false statements calculated to injure and destroy his reputation could sustain an action in defamation. However, even this averment is flawed. The complaint fails to state with any particularity the content of the oral or written statements claimed to have been made or the identity of the person or persons to whom the statements were made.

In an analogous case, Gross v. United Engineers & Constructors, Inc., 224 Pa.Super. 233, 302 A.2d 370 (1973), we reviewed the sufficiency of a complaint charging libel and slander. The lower court sustained preliminary objections in the nature of demurrer. In affirming, we note:

“[a]ny information subsequently supplied by plaintiff upon deposition requested by defendant cannot be used to supply the missing allegata of the complaint. The sufficiency of the complaint is governed by the facts alleged therein and the fact that the lacking information was or could be supplied is not governing.”

Id., 224 Pa.Superior at 235, 302 A.2d at 371. Itri v. Lewis, 281 Pa.Super. 521, 422 A.2d 591 (1980). Thus the complaint must stand or fall of its own accord.

The complaint in the case at bar is clearly inadequate. For this reason alone, the summary judgment was properly entered. Even if we looked beyond the face of the complaint, appellant’s deposition still fails to provide the requisite particularity regarding the alleged defamatory statements uttered by appellee. With one exception, appellant conceded that appellee made no statements of a defamatory nature:

Question: Where there any other alleged defamatory statements made subsequently by Mr. Feeley?
Answer: Well, none that I know of during this most recent investigation that he conducted on me. I don’t know what was said.
Question: Since that investigation?
Answer: Since what investigation?
Question: Since the gun transaction investigation had there been any further instances?
Answer: Well, Mr. Feeley conducted another investigation on me. He called me into his office on January 22, 1979, and told me that he was conducting an investigation into wrongdoing on my part as a result of allegations that had been made by to dismiss a police officers and their wives.
Question: What were the defamatory statements that were allegedly made by Mr. Feeley at that time?
Answer: Mr. Feeley didn’t make any defamatory statements at that time.
Question: Did he subsequently make any defamatory statements?
Answer: Not to me.
Question: Are you aware of any other defamatory statements?
Answer: I am aware of a conspiracy that he engaged in in connection with that investigation.
Question: You are not aware of any defamatory statements made or arising from the 1979 investigation made by Mr. Feeley?
Answer: I am only aware of a conspiracy that he engaged in with regards to trying to dig up anything derogatory about me that he could.

The only instance which appellant cited was an accusation by appellee in October of 1976 that appellant was a thief. Appellee, in addition to denying the statement by affidavit, argued that this allegedly defamatory statement was barred by the applicable one year statute of limitations. 42 Pa.C.S.A. § 5523. The lower court so held and we agree.

Appellant asserts that the trial judge erred in not permitting him to amend his complaint so as to insert sufficient particularity. The record reveals no such request on his part. Although appellant contends that he sought leave to amend at the time appellee filed his Motion for Summary Judgment, his “request” was merely an argument contained in a Memorandum of Law opposing the Summary Judgment. Nowhere was it embodied within a formal motion or petition.

Concededly, a liberal right of amendment is afforded to all litigants pursuant to Pa.R.C.P. No. 1033. However, the right to amend will be withheld if there does not appear to be a reasonable possibility that amendment will be successful. Mace v. Senior Adult Activities Center of Montgomery County, 282 Pa.Super. 566, 423 A.2d 390 (1980); Itri v. Lewis, supra. As we have stated above, the statements made by appellant himself at his deposition militate against the likelihood of establishing a cause of action.

Finally, appellant asserts that the lower court erred in holding that appellant’s failure to respond to appellee’s new matter constituted an admission of all averments contained therein. The trial court relied upon Pa.R.C.P. No. 1045(b) which provides:

“A plaintiff who fails to file a reply to averments of the defendant’s new matter shall be deemed to admit all such averments other than averments relating to contributory negligence or assumption of the risk.”

Appellee filed a timely answer and included in his new matter the averments that any statements allegedly made were true, that appellant had suffered no special damages and that any statements allegedly made were not published to any third parties. Appellant excuses his failure to file a response to appellee’s new matter by pointing out that appellee neglected to endorse his pleading with a “Notice to Plead” as is required by Pa.R.C.P. No. 1026. If no “Notice to Plead” is contained within the pleading, the responding party need not file a pleading in order to deny the aver-ments contained therein. Pa.R.C.P. No. 1029(d).

However, appellee filed an amended answer including additional new matter in which appellee raised the statute of limitations and averred that any allegedly defamatory statements were “protected by the existence of a qualified privilege to make such statements in the course of legitimate investigations of Mr. Spain’s misconduct.” This pleading was properly endorsed with an appropriate notice to plead, yet appellant still filed no response. Appellant advances the argument that a party may only file an amended pleading either by filed consent of his opponent or by leave of court. Pa.R.C.P. No. 1033. Since appellee had neither, appellant contends that appellee’s amended answer should be striken.

The allowance of an amendment other than one of right, Pa.R.C.P. No. 1028(c), is completely subject to the discretion of the court. Since the trial court chose to consider the averments included therein, that action implies a grant of approval by the court. Moreover, appellant alleges no prejudice caused by this amended answer, nor did he file preliminary objections or a Motion to Strike at the time it was filed. As stated previously, it is well established in this Commonwealth that amendments should be liberally allowed except where surprise or prejudice to the other party would result, or where there is no possibility that the apparent defect could be cured. Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 218 A.2d 350 (1966). The amended answer was filed only two months after the depositions, where testimony revealed the existence of the statute of limitations defense.

We find no abuse in either the trial court’s consideration of the amended answer or its disposition of the case.

Order affirmed.

      . But see Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 448 A.2d 6 (1982).

      . The proper procedure which should have been followed in Gross was to commence an action by filing a praecipe for a writ of summons. Pa.R.C.P. No. 1007. Thereafter, the plaintiff would be able to commence discovery in order to obtain the information necessary to the preparation of an adequate complaint.

      . Again, appellant refers us to his Memorandum of Law opposing the grant of summary judgment. Therein, appellant stated that he was filing a Motion to Strike Feeley's amended answer. Nevertheless, such a Motion is not included anywhere in the reproduced record which appellant provided to this Court, or in the original record. It is well-settled that an appellate court cannot consider anything which is not a part of the record. McCaffrey v. Pittsburgh Athletic Association, 448 Pa. 151, 293 A.2d 51 (1972).


author: ROWLEY, Judge:

text:
    461 A.2d 838
    In re INVOLUNTARY TERMINATION OF PARENTAL RIGHTS TO SCOTT AND TOMMY. Appeal of C.H.
    Superior Court of Pennsylvania.
    Submitted April 26, 1983.
    Filed June 10, 1983.

      Wayne Fulton Shade, Carlisle, for appellant.
    Ruth Duncan O’Brien, Carlisle, for appellees.
    Ruby D. Weeks, Carlisle, for participating party.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   ROWLEY, Judge:

Appellant is the natural mother of nine-year-old Scott and eight-year-old Tommy. This appeal is from an order terminating her parental rights to her sons.

The termination order was entered on May 7, 1982, almost two months after the United States Supreme Court decided Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The evidentiary hearings, however, were held prior to that decision.

In Santosky, the Court held that the burden of proof required in involuntary termination of parental rights cases is “clear and convincing evidence”. The trial court’s opinion sets out in detail the extensive evidence which was presented at the hearings. However, no mention is made of the standard of proof which was used in evaluating that evidence. Therefore, it is impossible for us to determine if the correct standard, clear and convincing evidence, was applied in this case.

As an appellate court, we may not make our own initial determination of whether the evidence meets the clear and convincing standard. Such an evaluation is for the factfinder. In re: Adoption of M.E.T, 313 Pa.Super. 316, 459 A.2d 1247 (1983). As the Supreme Court stated in Santosky:

“Since the litigants and- the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evi-dentiary standard.”
455 U.S. at 757, 102 S.Ct. at 1396,'71 L.Ed.2d at 609.

Therefore, we will remand this case to the trial court for further proceedings at which the clear and convincing evidence standard will be applied.

As pointed out by Judge Cavanaugh in In re: Adoption of M.E.T., supra, new evidentiary hearings may not be necessary in a case such as this. The trial court will determine, after hearing arguments of counsel, whether new evidentiary hearings are required. If the court concludes that counsel would have tried the case differently had it known that a clear and convincing standard would be applied or concludes that the evidence should be expanded, then it should schedule new evidentiary hearings. However, if the court concludes that new evidentiary hearings are not required, it need only reconsider its prior findings in light of the clear and convincing standard and modify those findings as necessary.

Order vacated and case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.