author: SAYLOR, Judge: DEL SOLE, Judge, HUDOCK, Judge,

text:
    658 A.2d 1357
    COMMONWEALTH of Pennsylvania v. Gaye MORLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1994.
    Filed May 24, 1995.

      James D. Crawford, Philadelphia, for appellant.
    Stuart B. Suss, Asst. Dist. Atty., Frazer, for Commonwealth, appellee.
    Before ROWLEY, P.J., and CAVANAUGH, WIEAND, CIRILLO, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and SAYLOR, JJ.
   SAYLOR, Judge:

This is an appeal from a judgment of sentence for first degree murder entered in the Court of Common Pleas of Chester County following a degree of guilt hearing.

Appellant, Gaye Morley, entered a plea of guilty to a general charge of criminal homicide in connection with the shooting death of her boyfriend, Stephen Lauritano. At the degree of guilt hearing, Appellant asserted a diminished capacity defense, arguing that she had been in a “depersonalized state” at the time of the killing and therefore had been unable to formulate a specific intent to kill. At the conclusion of the defense’s case-in-chief, defense counsel joined a prosecution request to permit the Commonwealth’s psychiatric expert, Dr. Kenneth Kool, to conduct an examination of Appellant prior to his testifying. Pursuant to this agreement, the trial court entered an order appointing Dr. Kool to examine Appellant in order to permit him to express an opinion regarding Appellant’s mental state at the time of the incident in which she had been charged and permitting Dr. Kool to examine the hospital records of Appellant in order to assist him in forming his opinion. The trial court also ordered that defense counsel be notified of the date and time of the examination so that they could be present. Dr. Kool examined Appellant and thereafter testified at the degree of guilt hearing as a rebuttal witness for the Commonwealth.

At the conclusion of the hearing, the trial court found Appellant guilty of first degree murder; Post-trial and supplemental post-trial motions were denied after an evidentiary hearing, and Appellant was sentenced to life imprisonment.

On appeal, Appellant contends that her right against compulsory self-incrimination was violated when she was allegedly compelled to participate in an interview with the Commonwealth’s psychiatrist without being told that she had a right not to answer the psychiatrist’s questions. She further contends that her statements concerning the commission of the crime which she made during the examination were admitted as evidence of her intent to kill, thereby Violating her privilege against self-incrimination, and that counsel was ineffective for failing to advise her of her right to remain silent during the examination and for failing to object to the use of her statements at the degree of guilt hearing. She also contends that counsel was ineffective for failing to call character witnesses on her behalf.

In arguing that her Fifth Amendment rights were violated, Appellant relies primarily on the decision of the Pennsylvania Supreme Court in Commonwealth v. Pomponi, 447 Pa. 154, 284 A.2d 708 (1971). In Pomponi, the court reaffirmed its prior rulings that the Fifth Amendment precludes a defendant from being compelled to answer questions posed by the Commonwealth’s psychiatric expert during a court-ordered psychiatric examination. Appellant also relies upon Commonwealth v. Hale, 467 Pa. 293, 356 A.2d 756 (1976), in which the Pennsylvania Supreme Court further held that a defendant has the right to be advised of his privilege against self-incrimination prior to answering any questions during a court-ordered psychiatric examination. Therefore, Appellant claims that because her statements about the shooting were obtained in violation of her Fifth Amendment rights, the use of these statements at her degree of guilt hearing constituted reversible error.

Since the Pennsylvania Supreme Court’s decisions in Pomponi and Hale, however, several decisions of the United States Supreme Court have addressed the applicability of the Fifth Amendment to court-ordered psychiatric examinations and the use of the results of such examinations as evidence at trial.

First in this line of decisions is Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), which involved a criminal defendant who had neither requested a psychiatric examination nor attempted to introduce any psychiatric evidence at trial. However, a psychiatrist had examined the defendant pursuant to a court order for the purpose of determining the defendant’s competency to stand trial. The Supreme Court considered the applicability of the Fifth Amendment privilege against self-incrimination, and held that “[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.” Id, 451 U.S. at 468, 101 S.Ct. at 1876, 68 L.Ed.2d at 372. The Supreme Court observed, however, that the result might have differed had the defendant raised an insanity defense and thereby placed his mental status at issue. Id, 451 U.S. at 465-466, 101 S.Ct. at 1874, 68 L.Ed.2d at 370-371.

In Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), the Supreme Court held that when a defendant raises an insanity defense, not only can he be compelled to submit to a psychiatric examination, but the testimony of the examining psychiatrist may also be admitted as evidence concerning the issue of insanity. The defendant in Buchanan had presented a defense of “extreme emotional disturbance” and had offered testimony concerning reports which contained evaluations of his mental condition. Distinguishing these facts from Smith, the Court noted that the defendant’s psychiatric examination had been at the joint request of the Commonwealth and defense counsel, and stated that

if a defendant requests such an examination or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested.

Buchanan, 483 U.S. at 422-423, 107 S.Ct. at 2917-2918, 97 L.Ed.2d at 355.

Finally, in Powell v. Texas, 492 U.S. 680, 109 S.Ct. 3146, 106 L.Ed.2d 551 (1989), the United States Supreme Court further acknowledged the necessity of providing the government with a means to rebut a mental status defense. Noting its previous decisions in Smith and Buchanan, the Court observed:

“[w]hen a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the state of the only effective means it has of controverting his proof on an issue that he has interjected into the case.” 1

Powell, supra, 492 U.S. at 684, 109 S.Ct. at 3149, 106 L.Ed.2d at 556, quoting Estelle v. Smith, 451 U.S. at 465-466, 101 S.Ct. at 1874, 68 L.Ed.2d at 370-371.

In addition to the decisions of the United States Supreme Court, many federal court decisions have also addressed the issues of whether a defendant who has raised a mental status defense can be compelled to submit to a psychiatric examination, and whether the government may thereafter use testimony concerning the results of such an examination to rebut such a defense.

In discussing the issue of whether a defendant may be compelled to submit to a psychiatric examination, federal courts have generally reiterated the principles enunciated in Smith, Buchanan and Powell, and have further emphasized that

[i]t would be a strange situation, indeed, if, first, the government is to be compelled to afford the defense ample psychiatric service and evidence at government expense and, second, if the government is to have the burden of proof, ... and yet it is to be denied the opportunity to have its own corresponding and verifying examination, a step which is perhaps the most trustworthy means of attempting to meet that burden.

United States v. Byers, 740 F.2d 1104, 1113 (D.C.Cir.1984), quoting Pope v. United States, 372 F.2d 710, 720 (8th Cir.1967) (en banc), vacated and remanded on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), cert. denied, 401 U.S. 949, 91 S.Ct. 953, 28 L.Ed.2d 232 (1971).

Thus, the Circuit Courts of Appeals are virtually unanimous in holding that, where a defendant interposes at trial the defense of insanity, his Fifth Amendment privilege against self-incrimination is not violated by a court-ordered psychiatric examination. See, McNeill v. Fulcomer, 753 F.Supp. 1294, 1298 (E.D.Pa.1990); Byers, supra, 740 F.2d at 1111.

In addition, federal courts have uniformly held that “[a]l-though the fifth amendment normally bars the government from subjecting the defendant to a psychiatric examination without warning him of his constitutional rights, that bar is waived once the defendant introduces psychiatric evidence in support of a mental defense.” Hendricks v. Vasquez, 974 F.2d 1099, 1108 (9th Cir.1992), citing Powell v. Texas, supra, 492 U.S. 680, 109 S.Ct. 3146. See also: Silagy v. Peters, 905 F.2d 986, 1005 (7th Cir.1990), cert. denied, 498 U.S. 1110, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991); Granviel v. Lynaugh, 881 F.2d 185, 190 (5th Cir.1989), cert. denied, 495 U.S. 963, 110 S.Ct. 2577, 109 L.Ed.2d 758 (1990); Washington v. Murray, 952 F.2d 1472, 1480 (4th Cir.1991).

Finally, the majority of federal courts which have considered the issue of whether the government may use psychiatric testimony to rebut a defendant’s mental status defense have generally followed the holding of the United States Supreme Court in Buchanan that when a defendant introduces into evidence psychiatric testimony to support a mental status defense, the state may introduce testimony of examining psychiatrists on that issue as well. McNeill, supra, 753 F.Supp. at 1298; Byers, supra, 740 F.2d at 1111. The rationale underlying this position was expressed by the Tenth Circuit in United States v. Julian, 469 F.2d 371 (10th Cir.1972):

[W]hen the defendant has raised the issue of insanity and the psychiatrist is called to testify on this question, the defendant must not be allowed to muzzle him at his option.

Id., 469 F.2d at 376.

Thus, it is now clear that when a defendant places his mental status at issue, he may be subjected to compulsory examination by court-appointed psychiatrists, and psychiatric testimony may be introduced by the government at trial to rebut his mental status defense without violating the Fifth Amendment. Accordingly, Appellant could constitutionally be required to submit to a psychiatric examination without being advised of her Fifth Amendment privilege against self-incrimination, and the examining psychiatrist’s testimony concerning his medical conclusions based upon such examination was admissible at Appellant’s degree of guilt hearing.

Appellant also argues, however, that Dr. Kool, the court-appointed psychiatrist, should not have been permitted to testify as to specific statements made by Appellant during the examination, reasoning that such testimony amounts to compelled inculpatory testimony in violation of Appellant’s constitutional rights. We disagree, and on the contrary conclude that because Appellant’s statements to Dr. Kool concerning the events surrounding the commission of the crime were admitted for the limited purpose of rebutting her assertion of diminished capacity, no violation of Appellant’s constitutional rights occurred.

Although no United States Supreme Court decision has yet dealt specifically with the issue of the admissibility of specific statements of the accused, federal circuit courts which have considered this issue have held that

a psychiatric expert can relate statements of the defendant which are used to determine sanity. In United States v. Byers, 740 F.2d 1104 (D.C.Cir.1984) (en banc), the court held that the Fifth Amendment was not violated by a Government psychiatrist’s testimony detailing unrecorded statements made by the defendant during a court-ordered examination. The court concluded that to hold otherwise would have an “unreasonable and debilitating effect” on “society’s conduct of a fair inquiry into the defendant’s culpability.” Id. at 1113.

Isley v. Dugger, 877 F.2d 47, 50 (11th Cir.1989). Likewise, psychiatric testimony has also been held admissible to rebut the defense of diminished capacity. United States v. Halbert, 712 F.2d 388, 390 (9th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984).

In holding that psychiatric testimony may be used at trial to rebut a defendant’s mental status defense, federal courts have carefully distinguished between psychiatric testimony concerning the issue of a defendant’s sanity and psychiatric testimony concerning the issue of a defendant’s guilt. In Gibson v. Zahradnick, 581 F.2d 75 (4th Cir.1978), the Fourth Circuit acknowledged this difference, noting that

[United States v. Albright, 388 F.2d 719 (4th Cir.1968) ] drew a sharp distinction between the use of the results of compulsory psychiatric examinations on the issue of sanity and the use of an incriminating statement made during a compulsory examination on the issue of guilt. The former is permissible; the latter is constitutionally forbidden. At least seven other United States Courts of Appeals have since indicated agreement with our holding that this kind of statement cannot be used on the issue of guilt.

Gibson, supra, 581 F.2d at 78 (citations omitted). See also, McNeill, supra, 753 F.Supp. at 1298.

These cases have drawn this distinction because “the purpose of the examination is not to determine whether a defendant did or did not do the criminal acts charged, but whether he possessed the requisite mental capacity to be criminally responsible therefor....” United States v. Albright, 388 F.2d 719, 725 (4th Cir.1968).

Appellant pled guilty to the general charge of homicide. Such a plea is not a plea of guilt to first degree murder; it is “simply an acknowledgement by a defendant that he participated in certain acts with a criminal intent.” Commonwealth v. Mitchell, 528 Pa. 546, 550, 599 A.2d 624, 626 (1991), citing Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984). Once such a plea has been tendered, the Commonwealth bears the burden of proving the essential elements of the higher degree of crime. Mitchell, supra, 528 Pa. at 550, 599 A.2d at 626 (citations omitted). Therefore, the degree of homicide for which Appellant would be held criminally liable was to be determined at the degree of guilt hearing.

By asserting the defense of diminished capacity, however, Appellant raised the additional issue of whether she was capable of performing a specified cognitive process. The psychiatric testimony at issue was admitted not to prove Appellant’s guilt, which she had already conceded by entering a general plea of guilty to criminal homicide. Nor was it admitted to prove the degree or level of her guilt. Rather, it was admitted to rebut her assertion that because of her mental state at the time of the shooting, she was incapable of forming a specific intent to kill. This was entirely permissible under relevant case law.

In Isley v. Dugger, 877 F.2d 47 (11th Cir.1989), the Eleventh Circuit, in discussing whether a psychiatrist should have been permitted to quote the defendant’s statements concerning the commission of the crime directly to the jury, noted:

Dr. Gonzalez testified that he based his opinion of Isley’s sanity on several of [the] facts recounted to him by Isley. Dr. Bourkard had testified at trial that the basis for his opinion was Isley’s statement to him about his actions during and after the murder. The question is whether the psychiatrists should have been allowed to quote Isley’s statements directly to the jury---- Since the statements clearly were used in forming their opinion, ... there was no constitutional error in allowing them to recite statements made by the defendant to explain the basis for their opinion.

Id., 877 F.2d at 49.

Likewise, in the instant case, Appellant’s statements were admitted solely as an explanation for Dr. Kool’s expert opinion that Appellant was capable of forming a mental state for which she could be held criminally liable. The Commonwealth continued to bear the burden of proving the level of Appellant’s criminal intent.

Under similar circumstances, the District of Columbia Circuit noted:

We recognize that some of the expert’s testimony incorporated statements by appellant regarding the manner in which she planned and committed the offense. Had this testimony been admitted for its tendency to buttress appellant’s guilt, the self-incrimination question would generate grave concern. But the challenged testimony was elicited solely for the purpose of supporting the experts’ conclusion that appellant was criminally responsible for her actions at the time of the offense. Furthermore, since appellant raised no issue as to guilt or innocence apart from her claim of mental illness, we detect no harm from its introduction, and certainly no plain error.

United States v. Whitlock, 663 F.2d 1094, 1107 (D.C.Cir.1980) (footnotes omitted).

Therefore, in this case, “the evidence [was] not being received testimonially to establish the guilt of the accused. Rather, it [was] being used circumstantially as it [bore] on the defendant’s mental state.” Julian, supra, 469 F.2d at 376. Accordingly, the psychiatric testimony was admissible in its entirety to rebut the defense of diminished capacity by establishing the basis for Dr. Kool’s expert opinion.

Having discerned no violation of Appellant’s Fifth Amendment rights, it follows that counsel was not ineffective for failing to object to the use of Appellant’s statements at trial. We also find no merit to Appellant’s claim that counsel was ineffective for failing to call character witnesses on her behalf.

It is well settled that trial counsel is presumed to have been effective, and that the defendant bears the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75 (1990). To establish counsel’s ineffectiveness, the defendant must prove: 1) that his underlying claim possesses arguable merit; 2) that the course chosen by counsel could have had no reasonable basis designed to serve the defendant’s interests; 3) that the defendant was prejudiced by counsel’s act or omission. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

Both the Supreme and Superior Courts of this Commonwealth have held that an attorney who fails to use character evidence on behalf of a defendant can be deemed ineffective if there is no reasonable basis for such failure. Commonwealth v. Mickens, 409 Pa.Super. 266, 597 A.2d 1196 (1991); Commonwealth v. Thuy, 424 Pa.Super. 482, 623 A.2d 327 (1993). To be admissible, however, character evidence must be relevant, having a “ ‘proper relation to the subject-matter of the charge at issue ...,’” and such evidence “is permitted on the theory that general reputation reflects character and a person with a good character for peaceableness, for example, would not in all reasonable probability commit an unlawful act of violence.” Commonwealth v. Castellana, 277 Pa. 117, 122-123, 121 A. 50, 51-52 (1923) (citation omitted).

Since Appellant had already pled guilty to the unlawful act of criminal homicide, evidence of her good character would have been irrelevant at the degree of guilt hearing; therefore, counsel could not have been ineffective for failing to present such evidence.

Having found no merit to any of the issues presented by Appellant, we affirm the judgment of sentence.

HUDOCK, J., files a Concurring and Dissenting Opinion in which CAVANAUGH and JOHNSON, JJ., join.

DEL SOLE, J., files a separate Concurring and Dissenting Opinion.

DEL SOLE, Judge,

concurring and dissenting.

I join the concurring and dissenting opinion authored by Judge Hudock and its reasoning that the testimony in question was not admissible by virtue of the Fifth Amendment of the United States Constitution. I write separately, however, to remark on the statement made in the majority opinion on page eight in footnote one which claims that the Pennsylvania constitutional right against self-incrimination found at Article 1, Section 9 is coextensive with the federal right.

The Majority and the Dissent rely on a footnote in Commonwealth v. Marra, 527 Pa. 526, 594 A.2d 646 (1991) which makes that statement citing Commonwealth v. Carrera, 424 Pa. 551, 227 A.2d 627 (1967). The difficulty with relying on that footnote is twofold. First, in the Marra case, the issue of the application of the privilege was held not to be before the Court. Second, Carrera did not make such a pronouncement. Rather, while the court in Carrera referred to the privilege existing in both the state and federal constitutions, it discussed the application of the Fifth Amendment right as now applying to both federal and state proceedings, the latter by virtue of the Fourteenth Amendment.

To claim that these state and federal rights are coextensive ignores other important considerations. First, in D’Elia v. Pennsylvania Crime Commission, 521 Pa. 225, 555 A.2d 864 (1989) our Supreme Court analyzed the question of use and derivative use immunity by a non-legislative, non-administrative body. Its analysis focused solely on our state’s constitutional protection, and the court stated: “Nor have we held that for all purposes Article 1, Section 9 and the Fifth Amendment are co-extensive.” Id. at 236 ftn. 1, 555 A.2d 864.

Further, while the Federal constitution establishes certain minimum levels of protection below which the states cannot go, the states may offer greater protections to their citizens. More particularly, where a state constitutional right has been held to be co-extensive with a federal right as then defined, it does not follow that a subsequent re-evaluation of that right by the United States Supreme Court which has the effect of limiting the right, requires continued co-extensive application.

In Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) our Supreme Court established the method of reaching and deciding Pennsylvania Constitutional issues. That methodology has not and need not be utilized in the matter before us. However, under these circumstances, we should refrain from any expression of opinion on the application of the Pennsylvania Constitution.

HUDOCK, Judge,

concurring and dissenting.

Today the majority puts a chink in the heretofore impregnable Fifth Amendment to the Federal Constitution. It does so by finding no ineffectiveness on the part of counsel who allowed the prosecution to introduce incriminating statements made by his client to an agent of the prosecution without the benefit of Miranda warnings. I am compelled to dissent.

There is a critical distinction between having an expert testify to the results of an examination and having him testify to actual statements made by a defendant. Appellant pled guilty to homicide in general; not to any specific degree. She admitted the act of killing but not the mental state accompanying the act. Consequently, at the degree of guilt hearing, the court was required to determine whether Appellant was guilty of first-degree murder, third-degree murder, voluntary manslaughter or even involuntary manslaughter.

It is well-established that, as a general principle, all crimes involve two essential elements: the “act” (sometimes referred to as actus reus) and the “guilty mind” (sometimes referred to as mens rea). A person cannot be convicted of a crime without proof of both essential general elements. In each of the types of homicide, the “act” is the unjustified killing of a human being. The mens rea of each of the types of homicide however is different. In first-degree murder, defined in 18 Pa.C.S.A. section 2502(a), it is an intentional killing. Intentional killing is further defined as “willful, deliberate and premeditated.” 18 Pa.C.S.A. § 2502(d). Third-degree murder is defined in section 2502(c) of the Crimes Code as all other kinds of murder. Murder, although not defined by the Crimes Code, is defined by case law as a killing committed “at the very least with malice aforethought.” Commonwealth v. Reilly, 519 Pa. 550, 564, 549 A.2d 503, 510 (1988). Furthermore, malice may be found to exist “where there is a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.” Id. (quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868)).

The mens rea of voluntary manslaughter is defined in section 2503(a) of the Crimes Code as “sudden and intense passion resulting from serious provocation[.]” Finally, the mens rea for involuntary manslaughter is defined in section 2504(a) of the Crimes Code as acting in a “reckless or grossly negligent manner[.]” Consequently, the mens rea for homicide varies in degree from “willful, deliberate and premeditated” all the way down to merely recklessness or gross negligence.

Appellant pled guilty only to the “act”, not to the mens rea. It was for the trial court to determine the mens rea at the degree of guilt hearing. Therefore, Appellant cannot be said to have pled guilty to any of the specific types of homicide, and Appellant’s plea could not be considered a conviction until the degree of guilt hearing was concluded and a result was reached by the court as to the specific type of homicide. This distinction is crucial because the evidence presented at the degree of guilt hearing necessarily involved proof of an essential element of the crime, the mens rea and, therefore, bore significantly on the issue of guilt.

The Commonwealth sought to prove that Appellant committed first-degree murder and, therefore, offered evidence to prove Appellant’s specific intent to kill, that is, that Appellant acted willfully, deliberately and "with premeditation. Appellant, on the other hand, presented the defense of diminished capacity. This defense concedes the act, which was consistent with Appellant’s guilty plea, but seeks to negate the mens rea of first-degree murder. Commonwealth v. Anderson, 410 Pa.Super. 524, 600 A2d 577 (1991), alloc, den., 531 Pa. 644, 612 A.2d 983 (1992). Because Appellant sought to establish diminished capacity through expert psychiatric testimony, and Appellant thought another psychiatrist would support her claim, Appellant joined the Commonwealth in requesting a court-ordered psychiatric examination.

At the conclusion of the degree of guilt hearing, the trial court found that the Commonwealth had satisfied its burden beyond a reasonable doubt that Appellant had acted with the specific intent to kill, that is, the Commonwealth had proven the mens rea required to find Appellant guilty of first-degree murder.

The Commonwealth has argued strenuously for the admission of the statements made by Appellant, as testified to by Dr. Kool, by citing numerous decisions of the federal courts concerning their use in hearings to determine the sanity of a defendant. I find those decisions to be both distinguishable from our present case and illustrative of the deep concern the federal courts have expressed with regard to this type of evidence. Unlike a diminished capacity defense which seeks to negate the mens rea element of the crime, a sanity defense focuses not on the elements of the crime but the legal sanity of the accused at the time the offense is committed. Legal insanity is defined as:

[t]he actor was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong.

18 Pa.C.S.A. § 315(b). Insanity is a complete defense to the crime involved, although rather than being automatically released, as in other acquittals, a defendant will be examined under the Mental Health Procedures Act, 50 P.S. section 7301 et seq., to determine whether he should be committed for treatment. When an insanity defense is presented, the court does not examine the elements of the crime to determine if a defendant has negated any of those elements. For this reason, the admission of the statements of the accused to a psychiatrist on the issue of sanity are logically distinct from statements which could be used to determine the accused’s guilt. An insane person has the capacity to kill with specific intent. That is, he can premeditate, act willfully and deliberate. What relieves him from responsibility is that he does not know the nature and quality of the act or does not know that the rest of society considers it to be wrong. For that reason, any statements made by one claiming insanity concerning the killing itself are superfluous; they are not necessary to prove the mens rea or actus reus. “[I]n a plea of not guilty by reason [of] insanity the defendant acknowledges guilt.” Commonwealth v. Trill, 374 Pa.Super. 549, 601, 543 A.2d 1106, 1132 (1988), (alloc, den., 522 Pa. 603, 562 A.2d 826 (1989) (Concurring Opinion by Beck, J.)). The person claiming insanity says “yes, I did it, and I intended to do it, but I did not know the nature and quality of my act or I did not know it was wrong.” As the Fifth Circuit Court of Appeals stated in United States v. Leonard, 609 F.2d 1163, 1165-66 (5th Cir. 1980):

... Because sanity at the time of the commission of the alleged offense bears heavily on the issue of guilt, it implicates Fifth Amendment concerns. Thus, there is a sharp distinction between the use of the defendant’s statements made during a court-ordered psychiatric examination on the issue of sanity and the use, before the “fact finders” (here a jury), of incriminating statements made during such psychiatric examination on the issue of guilt and before guilt had been determined. See Gibson v. Zahradnick, 581 F.2d 75, 78 (4th Cir.1978), cert. den. 439 U.S. 996, 99 S.Ct. 597, 58 L.Ed.2d 669 (1978); United States v. Bennett, 148 U.S.App. D.C. 364, 370-72, 460 F.2d 872, 878-80 (D.C.Cir.1972). Therefore, central to the court’s authority to order a defendant to submit to a psychiatric examination is what we believe to be a clear understanding that the function of the statements obtained during the examination is limited to the sanity issue.
There is another obvious rationale behind the rule. Both the Government and the defendant may need the assistance of expert testimony of the issue of sanity. In many cases, psychiatrists would not be able to obtain reliable testimony unless they were free to inquire into the prior conduct of the defendant, including his participation in the criminal activity with which he is charged. Moreover, the psychiatric inquiry cannot succeed unless the defendant cooperates; a defendant’s mental condition would not be discovered in many instances unless the psychiatrist can engage in a candid conversation with the defendant about it. Therefore, it may be appropriate and even in some cases necessary for the psychiatrist, [w]hen testifying on the issue of sanity, to disclose the criminal activity related to him by the defendant. [footnote omitted.]

The Commonwealth argues that the federal cases drawing a distinction between determinations of sanity and issues of guilt are based upon a rule of federal criminal procedure and a federal statute which have either been repealed or amended since those decisions were issued. I recognize that the wording of Fed.R.Crim.P. 12.2, which requires defendants to give notice of a mental condition defense, has been amended over the course of the years; however, the rationale behind the rule and the spirit of its language has not been altered so as to make a fundamental change in the underlying principle for which it stands. At the time of the Leonard decision the rule read in pertinent part as follows:

No statement made by the accused in the course of any examination provided for by this rule, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.

Fed.R.Crim.P. 12.2(c) (as cited in United States v. Halbert, 712 F.2d 388, 389 (9th Cir.1983)). In 1983, the pertinent portion of the rule was amended to read as follows:

No statement made by the defendant in the course of any examination provided by this rule, whether the examination be with or without the consent of the defendant, no testimony by the expert based upon such statement, and no other fruits of the statement shall be admitted in evidence against the defendant in any criminal proceeding except on an issue respecting mental condition on which the defendant has introduced testimony.

Fed.R.Crim.P. 12.2(c) as amended. This is the current language of the rule as well. It is clear from the plain language of this rule that Congress was drawing a distinction between use connected with sanity determinations and other uses concerned with the determination of guilt and protecting the accused’s sacred Fifth Amendment right against self-incrimination by limiting the use of evidence gathered as a result of court-ordered psychiatric examination. As further evidence of this concern, the advisory committee action notes following the rule, concerning the 1975 amendment, state:

The purpose of this rule is to secure the defendant’s fifth amendment right against self-incrimination. See State v. Raskin, 34 Wis.2d 607, 150 N.W.2d 318 (1967). The provision is flexible and does not totally preclude the use of such statements. For example, the defendant’s statement can be used at a separate determination of the issue of sanity or for sentencing purposes once guilt has been determined. A limiting instruction to the jury in a single trial to consider statements made to the psychiatrist only on the issue of sanity would not satisfy the requirements of the rule as amended. The prejudicial effect on the determination of guilt would be inescapable.

Notes of Committee on Judiciary on 1975 Amendments to Rule (House Report No. 94-247)(B). Furthermore, in the comments concerning the 1983 amendment on subdivision (c), it is stated:

The last sentence of subdivision (c) has been amended to more accurately reflect the Fifth Amendment considerations at play in this context. See Estelle v. Smith, 451 U.S. 454 [101 S.Ct 1866, 68 L.Ed.2d 359] (1981), holding that self-incrimination protections are not inevitably limited to the guilt phase of a trial and that the privilege, when applicable, protects against use of defendant’s statement and also the fruits thereof, including expert testimony based upon defendant’s statements to the expert. Estelle also intimates that “a defendant can be required to submit to a sanity examination,” and presumably some other form of mental examination, when “his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case.”

Notes of Advisory Committee on 1983 Amendments to Rules.

It is clear from the historical background of the rule and cases interpreting it that to sweep away the carefully crafted distinction made by the federal courts in this area is to determine guilt by tainted statements obtained from an accused in violation of her Fifth Amendment right against self-incrimination.

The majority relies on cases which hold that when a defendant places his sanity at issue, he may be subjected to compulsory examination by a court-appointed psychiatrist, and that psychiatric testimony may be introduced at trial to rebut the insanity defense without violating the Fifth Amendment. Under the M’Naughten rule, see 18 Pa.C.S.A. § 315, which governs the insanity defense in this Commonwealth, a defendant is legally insane and absolved of criminal responsibility if, at the time of committing the act, due to a defect of reason or disease of mind, the accused either did not know the nature and quality of the act or did not know that the act was wrong. Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687 (1991).

But the issue here is not insanity; the issue is diminished capacity to form the specific intent to kill. Appellant does not claim that due to a defect of reason or disease of mind she did not know the nature and quality of the act or that if she did, she did not know the act was wrong. Rather, she maintains that she had a weakened ability to form the specific intent to kill necessary for first-degree murder. In effect, Appellant claims that she had a weakened ability to act willfully, deliberately, and with premeditation. By her plea of guilty to homicide generally, all she admitted was the act of killing, and by not claiming insanity, Appellant acknowledged that the killing did not occur because of a defect of reason or disease of mind which caused her either not to know the nature and quality of her act or, if she did know the nature and quality of the act, that she did not know the act was wrong. It remained for the Commonwealth to prove whether the killing was first or third degree murder, or voluntary or involuntary manslaughter. Commonwealth v. Weaver, 500 Pa. 439, 457 A.2d 505 (1983) (an accused offering evidence under the theory of diminished capacity concedes general criminal liability). I therefore must dissent from the majority holding on this issue.

I do, however, agree with the majority’s discussion and analysis of the issue of whether Appellant should have been compelled to submit to a court-ordered psychiatric examination, and therefore, join that portion of the majority’s opinion.

CAVANAUGH and JOHNSON, JJ., join.

      . Although the guarantees provided by the Pennsylvania Constitution may afford greater protection than the guarantees of the federal constitution, Commonwealth v. Sell, 504 Pa. 46, 63-64, 470 A.2d 457, 466-467 (1983), the privilege against self-incrimination embodied in Article I, Section 9 of the Pennsylvania Constitution does not expand upon the protection afforded by the Fifth Amendment of the United States Constitution; rather, the protection afforded by the two constitutional provisions is co-extensive. Commonwealth, Department of Environmental Resources v. Marra, 527 Pa. 526, 527 n. 2, 594 A.2d 646 n. 2 (1991). Accordingly, when the privilege against self-incrimination is invoked in a state proceeding, federal standards govern. Commonwealth v. Carrera, 424 Pa. 551, 227 A.2d 627 (1967). Therefore, the decisions of federal courts concerning the applicability of the privilege against self-incrimination to court-ordered psychiatric examinations and to the admissibility of the results of such examinations are instructive and persuasive, in addition to the holdings of the United States Supreme Court, which are binding.

      . Contrary to Appellant’s assertion, the record reveals that Appellant consented to the examination because defense counsel anticipated that the results would support Appellant’s claim of diminished capacity. Therefore, Appellant was not, as she claims, compelled to submit to the examination. However, because Appellant had raised a claim of diminished capacity, which is a mental status defense, under Smith and Buchanan she constitutionally could have been compelled to submit to such an examination.


source: Caselaw Access Project

author: ROWLEY, President Judge: POPOVICH, Judge,

license: Public Domain

text:
    658 A.2d 1368
    COMMONWEALTH of Pennsylvania v. Grover Hughes PHILLIPPI, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1995.
    Filed May 25, 1995.
    Petition for Allowance of Appeal Denied Sept. 25, 1995.

      Clark B. Frame, Morgantown, WV, for appellant.
    David F. Pollock, Dist. Atty., Waynesburg, for the Comm., appellee.
    Before ROWLEY, President Judge, and McEWEN and POPOVICH, JJ.
   ROWLEY, President Judge:

Appellant Grover Hughes Phillippi appeals an order of the trial court denying his motion to dismiss criminal charges against him on double jeopardy grounds. We affirm.

Appellant was tried on May 3-5,1994, on charges of statutory rape and aggravated indecent assault. After deliberating for several hours on May 5, the jurors were sent home. The trial court received notice at home that evening that one of the jurors refused to return to continue deliberating the next day. When the juror failed to appear the following morning, the trial court informed counsel that, he was going to declare a mistrial. The trial court told counsel that he had been unable to reach an alternate j.uror, and would have been reluctant to seat her in any event, since she did not participate in deliberations the day before. Furthermore, the trial court was unwilling to proceed with only eleven jurors. He then told counsel that “before [they] talked about any alternative ways of handling this,” he wanted them to be aware of the fact that the juror who refused to return informed him that “the jury could meet there for two weeks and we’re not going to reach a verdict.” Conference in Chambers, 5/6/94, at 3. Defense counsel told the trial court that “[a]s a matter of fact, that’s what we were talking about.” Id.

After further discussion, defense counsel stated, “There is no need to talk further. We were considering the possibility of only going with 11 [jurors]. But all we would do is sit around and make a lot of people mad and arrive at the same place later today.” Id. at 3-4. The trial court then declared a mistrial and released the remaining jurors. After the trial court entered an order on May 23,1994, re-listing the case for trial, appellant filed a motion to dismiss on May 31, 1994.

Absent the defendant’s request or consent, he or she may not be re-tried after a mistrial has been declared without offending double jeopardy principles, unless the facts establish a “manifest necessity” for the trial court’s actions. United States v. Jorn, 400 U.S. 470, 484-85, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971); Commonwealth v. Balog, 395 Pa.Super. 158, 163, 576 A.2d 1092, 1094 (1990); Pa.R.Crim.P. 1118(b). A failure of the court to consider less drastic alternatives before declaring a mistrial creates doubt about the exercise of the trial court’s discretion, and may bar re-prosecution because of double jeopardy protections. Balog, 395 Pa.Super. at 164-65, 576 A.2d at 1095.

A review of the record establishes that we need not decide whether the circumstances establish that a manifest necessity to declare a mistrial existed. Defense counsel not only failed to object to the trial court’s decision to declare a mistrial, but consented to the decision after alternatives were raised, discussed, and rejected. Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976) (súbstantive law of double jeopardy requires either a request or consent by defendant to mistrial to avoid requirement that mistrial be manifestly necessary).

On appeal, appellant cites to his “impression” that the trial court had “excused” the absent juror as a circumstance creating “confusion and doubt about why the mistrial was ever declared.” Appellant’s Brief at 7, 9. However, the record confirms the trial court’s claim that the juror was not excused. Moreover, if defense counsel was confused at the time of the conference as to whether the juror was excused, it would have been a simple matter to ask the trial court directly. Furthermore, appellant now asserts that the “ex parte” information the trial court received from the recalcitrant juror that “we’re divided just about half and half and neither side will give in,” Conference in Chambers at 3, was imparted to both counsel at a “critical time,” implying that he was somehow improperly persuaded to acquiesce in the declaration of a mistrial by this information. The record establishes, however, that he agreed that the jury was potentially deadlocked. Id. at 3-4. The “practical inability of the original tribunal to complete the trial” is unquestionably one of the accepted situations constituting manifest necessity. Balog, 395 Pa.Super. at 165, 576 A.2d at 1095.

With respect to less drastic alternatives than mistrial, defense counsel could have, inter alia, requested that individual jurors be polled to confirm that a deadlock existed, requested a continuance until the absent juror returned, requested a recess until the alternate juror was located, or insisted upon continuing with eleven jurors. Instead, he essentially conceded that the juror’s observation to the trial court that “neither side will give in,” Conference in Chambers at 3, “corresponded to my own observation ... [that] I just figured it was that way.” Id. at 4.

The trial court acted appropriately in notifying both counsel before declaring a mistrial, and in considering less drastic alternatives. Commonwealth ex rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976), cert. denied, 429 U.S. 867, 97 S.Ct. 178, 50 L.Ed.2d 147 (1976). We find counsel’s comment that “there is no need to talk further____all we would do is sit around and make a lot of people mad and arrive at the same place later today,” Conference in Chambers at 4-5, constitutes consent to the declaration of a mistrial. As such, double jeopardy does not bar re-prosecution.

Order affirmed.

Judge POPOVICH files a dissenting opinion.

POPOVICH, Judge,

dissenting:

Because I find that consent to a mistrial was not properly given by appellant, I must respectfully dissent from the decision reached by my esteemed colleagues.

The record clearly shows that the trial judge, sua sponte, declared a mistrial. On Thursday, May 5,1994, the fourth day of trial, the jury commenced its deliberation and did not reach a verdict after several hours. The trial judge recessed the jury and instructed them to return the following morning to resume deliberation. On Thursday evening, the trial judge, at his home, had a telephone conversation with a juror wherein the juror informed the judge that she would be absent from deliberation because she was attending her grandmother’s funeral in Illinois. The juror did not appear for deliberation on the morning of Friday, May 6,1994. The trial judge held a conference with counsel in his chambers. In the judge’s chambers, the judge began his discussion with counsel by-apprising them of the juror’s absence from deliberation and then stated as follows: “So we are going to have a mistrial in the case. I just wanted to inform counsel.” Conference in Chambers 5/6/94 at 2.

After his declaration of a mistrial, the trial judge informed counsel of the absent juror’s belief that the jury was “divided just about half and half, and neither side will give in.” Conference in Chambers 5/6/94 at 8. The majority herein finds that defense counsel then consented to a mistrial because defense counsel agreed that the jury would be divided in reaching a verdict even with eleven jurors.

I do not embrace the majority’s determination. “Accepting that [defense] counsel consented to the mistrial, under the circumstances, this was not a true consent or the type of consent the law contemplates to prevent double jeopardy from attaching.” Commonwealth v. Wideman, 453 Pa. 119, 122-24, 306 A.2d 894, 896 (1973) (supreme court finds consent to mistrial was not given where trial judge informed counsel in chambers on third day of trial that he would have to declare a mistrial because the trial at hand was longer than expected and interfered with his commitments in other cases; defense counsel did not object to trial judge’s declaration of a mistrial and defendant did not personally. consent).

The trial judge’s decision to declare a mistrial was based solely upon his telephone conversation with the juror on the evening of Thursday, May 5, 1994. It ought not follow that consent to a mistrial is derived from such a tenuous basis. Compare Commonwealth v. Hamilton, 460 Pa. 686, 334 A.2d 588 (1975) (consent to a mistrial was found where trial judge apprised defense counsel that he held a colloquy with the jury foreman and several other jurors and determined that the jury was unable to reach a verdict after thirty hours of deliberation).

The trial judge advised counsel that the absent juror told him that the jury was “divided just about half and half, and neither side will give in.” Conference in Chambers 5/6/94 at 3. Contrarily, defense counsel maintain that their investigation revealed the absent juror was one of only two jurors voting for a conviction at the time of recessing on Thursday evening, May 5, 1994, and that the remaining ten (10) jurors were voting for an acquittal and believed that progress was being made toward reaching a verdict. Hearing on Defendant’s Motion to Dismiss 6/16/94 at 26-27; R. 27. Also, defense counsel assert that their investigation showed that the absent juror returned home on Sunday, May 8,1994, and was present at work on Monday, May 9, 1994. Hearing on Defendant’s Motion to Dismiss 6/16/94 at 9; R. 27.

Without adequately inquiring about the status of the deliberation and without exploring the possibility of a continuance, the trial judge did not make a sufficient finding for an informative decision to be made by defense counsel. Moreover, I am of the opinion that consent for a mistrial was not established because appellant was not present at the time his defense counsel apparently agreed to a mistrial. See Wideman, 453 Pa. at 120-22, 306 A.2d at 895. Compare Commonwealth v. Owens, 299 Pa.Super. 1, 445 A.2d 117 (1982) (consent to a mistrial by defendant himself was established where defendant was physically present at the time his counsel moved for a mistrial and made no objection to his counsel’s course of action).

A trial judge’s ruling to abort a proceeding without the defendant’s consent is appropriate only if the trial judge, upon his own scrupulous consideration of less drastic alternatives, determines that there is a manifest necessity for the mistrial. Commonwealth v. Balog, 395 Pa.Super. 158, 576 A.2d 1092 (1990).

In the case at bar, the mistrial was not initiated by a motion of the appellant. Instead, it stemmed from the express ruling of the trial court. Therefore, I disagree with the majority’s finding that defense counsel had an obligation to request less drastic alternatives. I find that the duty to probe into the alternatives paramountly belonged to the trial judge and that he did not give heed to this responsibility. Accordingly, I conclude that the lower court erred in denying appellant’s motion to dismiss the criminal charges against him on double jeopardy grounds.

      . The trial court steadfastly maintains that he never released the juror, but insisted that she return for deliberations the following day.

      . The dissent does not find that this constitutes consent, citing Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973), and Commonwealth v. Owens, 299 Pa.Super. 1, 445 A.2d 117 (1972). However, the facts presented in Wideman are distinguishable from the facts herein. First, the mistrial in Wideman was declared for the convenience of the presiding judge’s schedule, and, significandy, "the record fails to show any affirmative consent on the part of Wideman’s counsel.” Wideman, 453 Pa. at 122, 306 A.2d at 895 (emphasis supplied). Second, while the Supreme Court framed the issue in Wideman in the context of whether error occurs when a mistrial is declared without the defendant’s "personal consent,” id., the Court’s analysis and holding are framed in the context of the consent of defendant’s counsel, and make no reference whatsoever to a necessity to secure a defendant's personal consent.
      In a similar vein, the dissent would read Owens to support the position that a defendant must personally consent to a mistrial. However, the trial court declared a mistrial in Owens only after the defendant’s egregiously disruptive behavior throughout his trial resulted in the trial court holding him thrice in contempt. The defendant’s behavior stemmed from his desire to fire his trial counsel, the trial counsel finally requested a mistrial be declared, the defendant thanked the trial court for granting the motion, and then attempted to claim on appeal that the mistrial was granted without his consent. Owens, 299 Pa.Super. at 7, 445 A.2d at 118-19.

      . We recognize that a defendant need not in every instance make a specific objection at the time a mistrial is declared to avoid waiver. See, e.g., Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976) (where trial court sua sponte orders mistrial over defendant’s objection, defendant need not specify reason for objecting); Commonwealth v. Moose, 424 Pa.Super. 579, 623 A.2d 831 (1993) (since double jeopardy issue is not ripe for review until Commonwealth decides to undertake re-prosecution, defendant is not required to file for dismissal on direct appeal to avoid waiver), appeal denied, 538 Pa. 613, 645 A.2d 1317 (1994).


author: HUDOCK, Judge:

text:
    658 A.2d 1372
    Frederick V. JOHNSON, Appellee, v. David Lee SINGLETON, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 17, 1995.
    Filed May 26, 1995.

      Gregory S. Olsavick, Altoona, for appellant.
    Richard M. Serbin, Altoona, for appellee.
    Before HUDOCK, SAYLOR and HESTER, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment entered in the Court of Common Pleas of Cambria County which ordered Appellant David Lee Singleton to pay post-judgment interest at a rate of six percent per annum on the molded verdict as of the date of the February 5, 1993, jury verdict. We affirm.

The detailed procedural history of this matter may be summarized as follows: On October 22, 1983, Appellee was injured in a vehicular/pedestrian collision. A complaint seeking damages for the injuries sustained was filed on December 3, 1984 in the Court of Common Pleas of Blair County. By order of court, venue of the matter was transferred to Cambria County. The matter proceeded to trial and, on October 27, 1989, the jury reached a verdict in favor of Appellee. The jury however apportioned damages since it found Appellee to be forty-five percent negligent and Appellant to be fifty-five percent negligent. Following denial of timely filed post-trial motions, Appellant filed an appeal to this Court. This Court reversed the judgment entered on the jury’s verdict and remanded to the trial court for a new trial. See Johnson v. Singleton, 417 Pa.Super. 660, 603 A.2d 1084 (1991) (table).

The second trial in this matter commenced on February 1, 1993, and concluded on February 5, 1993. The jury found for Appellee, determining that Appellant was the sole cause of Appellee’s injuries. The jury awarded Appellee damages in the amount of $210,000.00. Appellant’s post-trial motions were withdrawn prior to their disposition. Within ten days of the verdict, Appellee timely filed a motion to mold the verdict to include delay damages. See Pa.R.C.P. 238, 42 Pa.C.S.A. By order dated December 13, 1993, the trial court granted Appellee’s motion and molded the verdict to include delay damages in the amount of $174,532.84. On December 15, 1993, Appellee filed a praecipe for entry of judgment of the jury’s February 5, 1993, verdict, including delay damages. Thereafter, Appellee amended his praecipe for entry of judgment, this time asking that post-judgment interest in the amount of six percent be assessed against Appellant as of the date of the verdict. By order dated July 18, 1994, the trial court granted Appellee’s request for post-judgment interest and added the amount of $33,374.88 to the already molded verdict. On July 22, 1994, judgment was entered in favor of Appellee as follows:

Molded Verdict $384,532.84

Interest From 2/5/93-7/18/94 (As Computed by the Order of Court dated July 18, 1994) $ 33,374,88

JUDGMENT AS OF JULY 18, 1994 $417,907.72

See Prothonotary’s Entry of Judgment, at p. 1. This direct appeal followed.

On appeal, Appellant argues that the trial court erred in imposing post-judgment interest on the molded verdict. He points out that even though the petition for delay damages was timely filed, the trial court did not hear oral argument on the motion until August 27,1993, and did not render a decision on the motion until December 13, 1993. He stresses that Appellee did not even petition for the addition of post-judgment interest until December 22, 1993. Because of the delay in determining the amount of the molded verdict and Appellee’s failure to petition for post-judgment interest until December 22, 1993, Appellant asserts that it was error for the trial court to assess post-judgment interest from the time of the jury verdict. Appellant avers that post-judgment interest should accrue either from the date of the trial court’s order assessing post-judgment interest, or, in the alternative, from December 13, 1993, the date that the verdict was molded. Because Appellant’s claim is clearly without merit, we affirm the decision of the trial court.

Section 8101 of the Judiciary Act provides:

Except as otherwise provided by another statute, a judgment for a specific sum of money shall bear interest at the lawful rate from the date of the verdict or award, or from the date of the judgment, if the judgment is not entered upon a verdict or award.

42 Pa.C.S.A. § 8101. In Kessler v. Old Guard Mutual Insurance Company, 391 Pa.Super. 175, 570 A.2d 569 (1990), this Court explained:

“The general rule is that a plaintiff is entitled to interest on a judgment from the date of the verdict.” Sands v. Pennsylvania Insurance Guaranty Association, 283 Pa.Super. 217, 227, 423 A.2d 1224, 1229 (1980). See: 42 Pa.C.S. § 8101. “[F]or purposes of computing interest, judgment and verdict are synonymous, and the date from which interest accrues is the date of verdict, not the date judgment is finally entered.” Incollingo v. Ewing, 474 Pa. 527, 537, 379 A.2d 79, 84 (1977).

Id. at 571-72 (footnote omitted). Moreover, this Court stated that, “where the amount of a verdict has been corrected upward by the trial court to reflect the correct amount due, interest should begin to run on the correct amount from the date of the verdict.” Id. at 572. In Woods v. Commonwealth, Department of Transportation, 163 Pa.Commw. 379, 641 A.2d 633 (1994), the Commonwealth Court determined that post-judgment interest could be assessed against delay damages awarded pursuant to Pa.R.C.P. 238. Thus, in the present case, Appellee, as was correctly determined by the trial court, is entitled to post-judgment interest on any unpaid portion of the molded jury verdict, and such interest accrues from the date of the verdict, regardless of when the petition is filed. We cannot hold, as Appellant urges us to do, that a request for post-judgment interest must be filed at the same time as a request for delay damages.

We now turn to Appellee’s motion which states that Appellant’s appeal is frivolous, entitling him to costs and attorney’s fees. Appellee avers that fees and costs are warranted because Appellant, without ever having contested the jury’s verdict, has not made any payment on the verdict, yet is now using the appellate system to further add to the delay in payment. Under Pennsylvania Rule of Appellate Procedure 2744, an appellate court may award counsel fees and costs if it determines that an appeal is frivolous. Pa.R.A.P. 2744, 42 Pa.C.S.A. “An appeal is not frivolous simply because it lacks merit. A claim is frivolous, however, if it has no basis in law or fact.” Winpenny v. Winpenny, 434 Pa.Super. 348, 354, 643 A.2d 677, 680 (1994) (citation omitted).

Although our research reveals that the Commonwealth Court has clearly spoken on the issue raised herein by Appellant, our Court has not. We are constrained, then, to deny Appellee’s request for attorney’s fees and costs. It is well-settled that this Court is not bound by decisions of the Commonwealth Court, and we cannot say it was frivolous for Appellant to attempt to convince us to adopt a position contrary to that of Commonwealth Court.

Judgment affirmed. Appellee’s motion for counsel fees and costs is denied.

      . In reaching its decision, the Commonwealth Court analogized the post-judgment interest issue to the issue addressed in Ralph Myers Contracting Corporation v. Commonwealth, Department of Transportation, 496 Pa. 197, 436 A.2d 612 (1981). The Myers court was not presented with the issue of whether post-judgment interest should be added to a molded verdict since the action dealt with a contract dispute within the jurisdiction of the Board of Arbitration of Claims. In Myers, Myers was awarded an amount of principal plus interest. When the balance was unpaid, Myers sought interest on top of the award that he already received. Although dealing with a different issue, the Woods court adopted the following rationale from Myers :

      Quite simply put, interest awarded as to the principal amount of the claim merges with the principal awarded and becomes thereby an integral part of the judgment, thus, Myers is entitled to be compensated for the delay from entry of the award of principal amount plus interest to date of payment in full, with interest computed at the rate of 6% per annum.

        Myers, 496 Pa. 204, 436 A.2d at 615 (emphasis in original).


author: CERCONE, Judge: TAMILIA, Judge,

text:
    658 A.2d 1375
    NATIONAL CHECK, v. FIRST FIDELITY BANK Appeal of David RIGGS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 29, 1995.
    Filed May 31, 1995.

      David Riggs, appellant, pro se.
    Kent Miller, Philadelphia, for appellee.
    Before TAMILIA, HOFFMAN and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the order of court sustaining preliminary objections filed on behalf of appellee First Fidelity and dismissing appellant’s complaint. After careful review of that complaint, we reverse.

The Honorable Russell M. Nigro filed an opinion aptly summarizing many of the relevant facts:

Plaintiff [appellant] brought this action against First Fidelity Bank, N.A. (“First Fidelity”), seeking damages on account of First Fidelity’s alleged delay in processing a six-year old $600.00 check. Plaintiff is a sole-proprietorship collection agency that came into possession of the check, which was originally presented and returned for insufficient funds in 1988.
On January 3, 1994, [appellant] deposited the check (dated March 7, 1988) into an account with Maryland National Bank (the “depository bank”). The depository bank, in turn, presented the check to First Fidelity on January 4, 1994. First Fidelity initiated the return of the check to the depository bank on January 6, 1994 because the check was stale.
Plaintiff contends that the check was returned after the “midnight deadline” and that it was returned in an “unexpeditious” manner. As a result of the alleged delay in returning the check, and not because the check was dishonored, plaintiff claims to have suffered damages resulting in his becoming “virtually impoverished, his reputation destroyed.”

Trial Court Opinion, 10/31/94 at 1-2. In the prayer for relief, appellant National Check requested that appellee bank be held responsible for the face value of the check, consequential damages and other appropriate relief.

After finding that appellant had not complied with Pennsylvania Rule of Civil Procedure 424, the lower court set aside service. The court also concluded that appellant’s allegations were “beyond belief and [did] not state a cause of action for that reason.” Trial Court Opinion, 10/31/94 at 4. Consequently, it sustained First Fidelity’s preliminary objections in the nature of a demurrer and dismissed the complaint -without prejudice. Appellant files the instant timely appeal from the lower court’s order sustaining appellee’s preliminary objections. In essence, appellant challenges the grant of a demurrer, arguing that the complaint “states a claim upon which relief can be granted under section 4-302 of the Uniform Commercial Code.... [and] under 12 C.F.R. section 229.10.”

When considering a trial court’s order granting preliminary objections in the nature of a demurrer, an appellate court must accept as true all well pleaded facts contained in the complaint as well as any inferences reasonably deducible from those facts. Chew-Bittel Associates, Inc. v. Crusader Savings Bank, 430 Pa.Super. 631, 635, 635 A.2d 653, 654 (1993). Preliminary objections may be sustained only when it appears with certainty that the law permits no recovery under the facts averred. Id. Any doubt in that determination should be resolved by overruling the objections. Cianfrani v. Commonwealth, State Employees’ Retirement Board, 505 Pa. 294, 479 A.2d 468 (1984).

Neither the trial court nor the bank dispute the delayed return of appellant’s check. Rather, the trial court contests the damages appellant claims to have incurred as a result of that delayed return: “It is impossible for plaintiff to have suffered the alleged harm by the fact that First National returned the check late.” Trial Court Opinion, 10/31/94 at 4. By dismissing the action on that basis, the lower court evidences its misconception of a drawee bank’s potential liability under section 4302 of the Commercial Code.

A payor bank must pay, return or dishonor a check before midnight on the day following presentment to or receipt by the bank:

(a) General rule. — If an item is presented to and received by a payor bank the bank is accountable for the amount of:
(1) a demand item, other than a documentary draft, whether properly payable or not, if the bank, in any case in which it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, whether or not it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline; or
(2) any other properly payable item unless, within the time allowed for acceptance or payment of that item, the bank either accepts or pays the item or returns it and accompanying documents.

13 Pa.C.S.A. § 4302. Consequently, a payor bank that fails to return or pay a check before the midnight deadline may be held accountable by the payee of that check for its face amount, plus any actual damages incurred. Chew-Bittel, 430 Pa.Super. at 637, 635 A.2d at 655. See also Chrysler Credit Corp. v. First National Bank and Trust Co. of Washington, 746 F.2d 200, 201 (3rd Cir.1984) (applying Pennsylvania law and holding that payor bank’s failure to pay, return or dishon- or a check before midnight on the day following presentment rendered the bank accountable). This court recently set forth the rationale for imposing such liability on a payor bank:

A holder of a check, not having heard from the bank within a reasonable time, must be permitted to assume that the check has been paid. Allowing a bank to retain a check for an indefinite period without incurring liability would hamper normal commercial practices, for a payee would never be certain that the funds represented by the check were available for use. As one court has observed, “failure [of a bank] to meet the midnight deadline authorizes the person presenting the check to assume that it has been honored and will be paid. Banking practices require the prompt settlement of such items because of the chain of credit dependent thereon.”

Chew-Bittel, 430 Pa.Super. at 638, 635 A.2d at 656 (citations omitted).

Here, as stated, appellant avers that the bank returned the check beyond the midnight deadline. Assuming, as our standard of review demands, this is an accurate statement of the facts, we conclude that appellant has stated a viable cause of action against the drawee bank. As such, the trial court erred in sustaining preliminary objections in the nature of a demurrer.

Reversed and remanded for further proceedings. Jurisdiction is relinquished.

TAMILIA, J., files a dissenting statement.

TAMILIA, Judge,

dissenting:

I respectfully dissent. I believe the trial court properly disposed of the issues in the case. On its face, the complaint is incredulous and appellant seeks to gain from a mere technical application of banking law, which standing alone could not result in the damages claimed. In any event, I believe the appeal is interlocutory and should be quashed.

      . In this appeal, National Check does not challenge the order setting aside service of its complaint.

      . An order which sustains preliminary objections and dismisses a complaint is both final and immediately appealable. See Harcourt v. General Accident Insurance Co., 419 Pa.Super. 155, 158 n. 1, 615 A.2d 71, 73 n. 1 (1992); Bash v. Bell Telephone Co., 411 Pa.Super. 347, 601 A.2d 825 (1992). Compare Sullivan v. Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954) and Deeter v. Dull Corp. Inc., 420 Pa.Super. 576, 580 n. 3, 617 A.2d 336, 338 n. 3 (1992), appeal denied, 535 Pa. 619, 629 A.2d 1380 (1992) (noting that an order sustaining preliminary objections without dismissal or contemporaneously granting the plaintiff leave to amend the complaint is interlocutory).


author: JOHNSON, Judge:

text:
    658 A2d 1378
    In the Interest of F.B. Appeal of F.B.
    Superior Court of Pennsylvania.
    Argued April 4, 1995.
    Filed May 31, 1995.

      Jeffrey P. Shender, Philadelphia, for appellant.
    Thomas Dolgenos, Philadelphia, for Com., participating party-
    Before CIRILLO, JOHNSON and SAYLOR, JJ.
   JOHNSON, Judge:

In this appeal, we are asked to determine whether the search of a student by school officials as part of a school-wide search of students for weapons was reasonable under the circumstances where the officials had no individualized suspicion that the student was armed. Finding that no individualized suspicion was required under the circumstances, we conclude that the search was reasonable. Accordingly, we affirm the trial court order which directed that F.B. (the juvenile) remain on probation after he was adjudicated delinquent.

Students at University High School in the City of Philadelphia are prohibited from bringing weapons or drugs onto school property. If students are found in possession of these items, they are arrested. Letters are sent home throughout the year informing parents and students of this policy.

To enforce this policy, the Philadelphia school district employs police officers to conduct in-house metal-detector scans and bag searches of the students at University High School. Signs are posted on the front door and throughout.the school notifying the students of these searches. Upon entering the building, the students are led into the gymnasium where they form lines and, one by one, step up to á table. Once at the table, each student empties his pockets and surrenders his jacket and any bags he may be carrying. While an officer searches the student’s belongings, the student is told to step to the end of the table where he is scanned by a metal detector. If no drugs or weapons are found, the student is permitted to retrieve his belongings. Every student is searched in this manner until the gymnasium becomes too crowded, at which time school administrators randomly select students to be searched.

The trial court found that when the juvenile, a University High School student, stepped up to the table and emptied his pockets, he discarded a Swiss-type folding knife. Trial Court Opinion, dated April 22, 1994, at 2. The juvenile then was escorted to a holding room where he was placed under arrest for possessing a weapon on school property.

The juvenile filed a suppression motion seeking to suppress the evidence seized. The trial court denied the juvenile’s motion and adjudicated him delinquent. The juvenile had been placed on probation after prior adjudications of delinquency. Thus, the court ordered that the juvenile remain on probation. This appeal followed.

On appeal, the juvenile contends that the trial court erred in denying his suppression motion because the police searched him without reasonable suspicion or probable cause to believe that he had violated any school regulation. Thus, he argues that the search violated his rights against unreasonable searches and seizures under both the United States and Pennsylvania Constitutions. When reviewing a suppression ruling,

our initial task is to determine whether the factual findings are supported by the record. In making this determination, we must consider only the evidence of the prosecution’s witnesses, and so much evidence of the defense that remains uncontradicted when fairly read in the context of the record as a whole. When the evidence supports the factual findings, we are bound by such findings; we may reverse only if the legal conclusions drawn therefrom are erroneous.

Commonwealth v. Williams, 539 Pa. 61, 71-72, 650 A.2d 420, 425-26 (1994). Initially, we note that the juvenile presented no evidence at the suppression/adjudicatory hearing.

I. UNITED STATES CONSTITUTION

The United States Supreme Court, in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), held that the Fourth Amendment’s prohibition of unreasonable searches and seizures applies to searches conducted by public school officials. The Supreme Court then assessed the standards which should govern such searches and determined that a balance must be struck between the schoolchild’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an environment in which learning can take place. Id. The Court concluded that the accommodation of these competing interests “does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.” Id. at 341, 105 S.Ct. at 742, 83 L.Ed.2d at 734.

The Supreme Court established a two-part test to assess the reasonableness of any school search. First, it must be determined whether the action was justified at its inception. Id. at 341, 105 S.Ct. at 742-43, 83 L.Ed.2d at 734. Second, it must be determined whether the search, as conducted, was reasonably related in scope to the circumstances that justified the interference in the first place. Id. at 341, 105 S.Ct. at 743, 83 L.Ed.2d at 734. This Court has applied the test set forth in T.L.O. to searches conducted by school authorities. See In Re S.K., 436 Pa.Super. 370, 647 A.2d 952 (1994); In Interest of Dumas, 357 Pa.Super. 294, 515 A.2d 984 (1986).

The juvenile contends that the search was unreasonable in light of the T.L.O. factors. Specifically, he argues that the search was not justified at its inception because there were no reasonable grounds to believe that he was carrying contraband. The juvenile asserts that the T.L.O. requirements cannot be evaded merely by searching the entire student population. Rather, he maintains that “individualized suspicion” must be required when school authorities subject students to such highly intrusive searches. Whether school officials need individualized suspicion to search students is an issue of first impression in this Commonwealth.

The T.L.O. Court determined that, ordinarily, a student search is justified at its inception where “there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” T.L.O., supra, at 342, 105 S.Ct. at 743, 83 L.Ed.2d at 735. However, the Supreme Court in T.L.O. did not decide whether individualized suspicion is an essential element of the reasonableness standard that it adopted for searches by school authorities. Id. at 342 n. 8, 105 S.Ct. at 743 n. 8, 83 L.Ed.2d at 735 n. 8. In fact, the Supreme Court pointed out that it previously had concluded that the Fourth Amendment imposes no irreducible requirement of individualized suspicion. Id. In addition, the Court noted that exceptions to the requirement of individualized suspicion are appropriate

where the privacy interests implicated by a search are minimal and where “other safeguards” are available “to assure that the individual’s reasonable expectation of privacy is not ‘subject to the discretion of the official in the field.’ ” Delaware v. Prouse, 440 U.S. 648, 654-655, 99 S.Ct. 1391, 1396-1397, 59 L.Ed.2d 660, 668 (1979) (citation omitted).

Id.

For example, the United States Supreme Court, as well as courts across the country, have permitted administrative searches where law enforcement authorities have no individualized suspicion when the searches are conducted as part of a general regulatory scheme to ensure the public safety, rather than as part of a criminal investigation to secure evidence of crime. U.S. v. $124,570 U.S. Currency, 873 F.2d 1240, 1243 (9th Cir.1989). Such searches are reasonable when the intrusion involved in the search is no greater than necessary to satisfy the governmental interest justifying the search, i.e., courts balance the degree of intrusion against the need for the search. Thus, courts have approved airport searches, Commonwealth v. Vecchione, 327 Pa.Super. 548, 476 A.2d 403 (1984); courthouse security measures, McMorris v. Alioto, 567 F.2d 897 (9th Cir.1978); Downing v. Kunzig, 454 F.2d 1230 (6th Cir.1972); Legal Aid Soc. of Orange County v. Crosson, 784 F.Supp. 1127 (S.D.N.Y.1992); license and registration vehicle stops, Commonwealth v. Blouse, 531 Pa. 167, 611 A.2d 1177 (1992); and border-patrol checkpoints, United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).

Nevertheless, the juvenile alleges that the search in the present case does not fall within the exceptions set forth in T.L.O. First, the juvenile claims that his privacy interest is not minimal because this was a search of his person. However, we must balance the school’s compelling interest in promoting an environment which is safe and conducive to learning against the schoolchild’s privacy interest. As a New York court recognized, “[i]f schools cannot operate in a violence-free atmosphere, then education will suffer, a result which ultimately threatens the well-being of everyone.” People v. Dukes, 151 Misc.2d 295, 300, 580 N.Y.S.2d 850, 853 (1992). We find that the school’s interest in ensuring security for its students far outweighs the juvenile’s privacy interest. In addition, the trial court found, and we agree, that, in light of the school’s efforts to make students and parents aware of their search policy, “the [juvenilej’s expectation of privacy was greatly reduced by the notice he received prior to the search.” Opinion, supra, at 4. Therefore, under these circumstances, we believe that the juvenile’s privacy interest is minimal.

Next, the juvenile asserts that there were no safeguards assuring that his expectation of privacy was not subjected to the discretion of the official in the field. See T.L.O., supra 469 U.S. 325, 105 S.Ct. 733. Namely, he charges that there were no written guidelines governing the search. Although we believe written guidelines would be prudent, we find that there were “other safeguards” present in this case. Id. at 342 n. 8, 105 S.Ct. at 743 n. 8, 83 L.Ed.2d at 735 n. 8. Specifically, the officers, who conducted the student searches followed a uniform procedure as they searched each student, i.e., after each student’s personal belongings were searched, the student was scanned by a metal detector. This uniformity served to safeguard the students from the discretion of those conducting the search.

Nevertheless, the juvenile suggests that school administrators had complete discretion to choose which students to search randomly after the gymnasium became crowded. However, we need not determine whether the random' selection process subjected students to the discretion of school administrators because the juvenile does not allege that he was among those randomly chosen. Thus, this question is not properly before our Court, and we will not consider it. Because the juvenile’s privacy interest was minimal and his expectation of privacy was not subjected to the discretion of the official in the field, no individualized suspicion was required to search the juvenile. See T.L.O., supra 469 U.S. 325, 105 S.Ct. 733.

Here, the trial court applied the reasonableness factors set forth in T.L.O. and found that the search was justified at its inception because of the high rate of violence in the Philadelphia public schools. Further, the court found that it was reasonable to search all students prior to entering the school because there is no way to know which students are carrying weapons. Therefore, the trial court concluded, and we agree, that the search of the juvenile satisfied the T.L.O. test for reasonableness.

Insofar as school authorities in the present case were also searching for drugs, we do not determine whether the need to promote safety in the school also served to justify this aspect of the search. That question is not properly before us because only a weapon was discovered in the juvenile’s possession.

Accordingly, having determined that no individualized suspicion was required in this case, we conclude that this search did not violate the juvenile’s Fourth Amendment rights because it satisfied the T.L.O. test for reasonableness.

II. PENNSYLVANIA CONSTITUTION

In addition, the juvenile contends that the search in the present case violated his rights against unreasonable searches and seizures under the Pennsylvania Constitution. Generally, in each case implicating a provision of the Pennsylvania Constitution, litigants are required to brief and analyze at least the following four factors: 1) text of the Pennsylvania constitutional provision; 2) history of the provision, including Pennsylvania case law; 3) related case law from other states; and, 4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence. Commonwealth v. Edmunds, 526 Pa. 374, 390, 586 A.2d 887, 895 (1991).

Where an appellant has not complied with the requirements set forth in Edmunds and has made no effort to explain how the Pennsylvania Constitution differs from the protection afforded by the United States Constitution, this Court has declined to consider a state analysis. Common wealth v. Toro, 432 Pa.Super. 383, 638 A.2d 991 (1994); Commonwealth v. Lucas, 424 Pa.Super. 173, 622 A.2d 325 (1993), appeal denied, 537 Pa. 648, 644 A.2d 733 (1994). In this case, although the juvenile argues that his rights under both the United States and Pennsylvania Constitutions have been violated, he has neither complied with Edmunds, nor explained how the Pennsylvania Constitution differs from the protection afforded by the United States Constitution. Accordingly, we likewise decline to address a state constitutional analysis.

Based upon the foregoing, we conclude that the trial court properly denied the juvenile’s suppression motion and, accordingly, affirm the order which directed that the juvenile remain on probation after he was adjudicated delinquent.

Order affirmed.


author: WIEAND, Judge:

text:
    658 A2d 1383
    ROUSE & ASSOCIATES, INC. and Willard G. Rouse, III and George F. Congdon, t/a Rouse & Associates, Appellants, v. W. Paul DELP and Lansdale Realty Company, Inc., Intervenor, Appellees. ROUSE & ASSOCIATES, INC. W. Paul DELP, Lansdale Realty Co., Inc. Appeal of W. Paul DELP.
    Superior Court of Pennsylvania.
    Argued Feb. 14, 1995.
    Filed June 1, 1995.

      Mark C. Clemm, Plymouth Meeting, for Rouse & Associates.
    Mark F. Himsworth, Lansdale, for Delp.
    Before WIEAND, BECK and BROSKY, JJ.
   WIEAND, Judge:

We are here concerned about the effect of restrictions imposed upon the alienability of the shares of stock of a family owned corporation upon execution by a creditor against one of the shareholders. The trial court held that (1) the restrictive covenant did not prevent the involuntary sale of the debtor’s stock, but (2) the purchaser took title subject to the terms of the restrictions imposed by the stockholders’ agreement. Both parties appealed. We affirm.

Rouse and Associates, Inc. (Rouse) recovered a judgment against W. Paúl Delp in the amount of $6,132,201.8s. It also sought to execute upon 95 shares of stock owned by Delp in Lansdale Realty Company, a business owned and operated by the Delp family. In connection therewith Rouse sought to enjoin Delp from transferring title to his shares of stock. By order dated June 24, 1994, Delp was directed to surrender to the sheriff his 95 shares of stock in Lansdale Realty Corporation, to be sold subject to the terms of the stock agreement previously entered by the family stockholders. Appeals followed by both debtor and creditor.

Lansdale Realty Company, Inc. was incorporated in Pennsylvania in 1955 by Ellis P. Delp and his two sons, Charles O. and Ellis B. Delp. W. Paul Delp, a third son, is Vice President of the corporation and owns 95 shares. In December, 1978, the shareholders executed a stock purchase agreement by the terms of which they agreed that they would not “sell, transfer, give, pledge, assign or in any manner encumber or alienate any of the stock” without first offering it to the corporation or to the other stockholders. Other provisions of the agreement were intended to establish the price to be paid for the stock. A notice of the restriction thereby placed on the alienability of the stock was to be included on the face of each stock certificate issued.

A family agreement imposing restrictions on the sale of stock is not invalid as an unreasonable restraint on alienation. Mather Estate, 410 Pa. 361, 189 A.2d 586 (1963). See also: 15 Pa.C.S. § 1529; Beggy v. Deike, 413 Pa. 74, 83, 196 A.2d 179, 183 (1963); Fitzsimmons v. Lindsay, 205 Pa. 79, 54 A. 488 (1903); Garrett v. Philadelphia Lawn Mower Co., 39 Pa.Super. 78, 82 (1909). Because alienation is an inherent attribute of corporate stock, however, restrictive agreements are not favorites of the law and are strictly construed. See: In Matter of Trilling and Montague, 140 F.Supp. 260, 261 (E.D.Pa.1956); Castonguay v. Castonguay, 306 N.W.2d 143, 145 (Minn.1981); Witte v. Beverly Lakes Investment Co., 715 S.W.2d 286, 293 (Mo.App.1986). See also: W. Fletcher, Fletcher Cyc. Corp. § 5461.6 (Rev. vol. 1985).

The stock purchase agreement in this ease does not purport to restrict or prevent the involuntary sale of stock by judicial process. In the absence of express language imposing such a restriction, no intent to impose such a restriction will be inferred. See: Witte v. Beverly Lakes Investment Co., supra 715 S.W.2d at 292. See also: In the Matter of Trilling and Montague, supra 140 F.Supp. 260. Because no such restriction has been imposed, we need not now decide the validity of or the effect to be given to an express restriction preventing an involuntary sale of stock. It is enough for our purposes that in this case the stock purchase agreement did not attempt to place the stock beyond the reach of creditors having bona fide claims against the stockholders.

It may be, as Rouse argues, that it is the purpose of a sheriffs sale to obtain the highest price for property sold. However, that is inadequate reason for invalidating otherwise valid restrictions on the voluntary alienation of stock. Cf. Mather Estate, supra 410 Pa. 361, 189 A.2d 586 (family business stock purchase valid despite charge that agreed price for stock too low). If Rouse becomes the purchaser of Delp’s stock, it can acquire only the interest which Delp owned. Therefore, the acquisition of his stock is subject to the same restrictions which prevent Delp from freely alienating his stock. See: First Oklahoma Bank, N.A. v. Sparkman, 850 P.2d 350, 352 (Okl.App.1992) (levy of execution effects lien in favor of judgment creditor only to extent of debtor’s actual interest).

Rouse contends, however, that the restrictions were abrogated by the stockholders who, themselves, effected transfers of stock without first offering the stock to the corporation. These transfers, however, were among family members. They were isolated transactions and did not demonstrate an intent to abrogate the restrictions on stock purchases generally. These restrictions the family carefully observed. Moreover, the family transfers were in no way repugnant to the stockholders’ intent to keep ownership of the corporation in the family. See: Bechtold v. Coleman Realty Co., 367 Pa. 208, 79 A.2d 661 (1951). See generally: 18 Am.Jur.2d Corporations § 698. Compare: Elliott v. Lindquist, 356 Pa. 385, 52 A.2d 180 (1947) (equity would not support prayer for relief by stockholders who themselves established pattern of long continued disregard of very by-laws they sought to enforce).

Because we find no error, the trial court’s order will be affirmed.

Order affirmed.

      . A petitioij to open or strike the judgment was denied, and the trial court’s order was affirmed on appeal by the Superior Court. See: Rouse v. Delp, 433 Pa.Super. 661, 639 A.2d 846 (1993).