author: CERCONE, President Judge: WATKINS, Judge,

text:
    435 A.2d 864
    COMMONWEALTH of Pennsylvania, v. Kenneth E. RAFFENSBERGER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 6, 1980.
    Filed Sept. 4, 1981.

      H. Stanley Rebert, Assistant Public Defender, York, for appellant.
    Daniel F. Wolf son, Assistant District Attorney, York, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
   CERCONE, President Judge:

Under our system, one accused of a crime is presumed innocent until the prosecuting attorney has demonstrated beyond a reasonable doubt to an impartial jury of the vicinage that he and the malefactor are identical, or that his actions match the definition or conform to the elements of the malefaction of which he stands accused. This presumption of innocence is but one of the many aspects of the fundamental law of our land. Like its counterparts, it emanates from the core concept which seeks to restrain governmental excess and prevent abuse by those exercising state power. As it pursues justice the Commonwealth is thus committed not only to the principle that one is innocent until proven guilty, but also to the principle of fairness in criminal prosecutions. Indeed, these principles are complementary, one without the other would frustrate the ends and objectives of justice.

Equally fundamental to our system of the administration of justice is the notion of impartiality. We have restrained the Commonwealth’s power to obtain guilty verdicts by requiring that the jury be impartial. This requirement encompasses not only that impartiality attained by culling the jury from the venire, but also impartiality in the way it reaches its verdict. In other words, the verdict must be “intellectually compelled after a disinterested, impartial and fair assessment of the testimony. . .presented.” Commonwealth v. Harvell, 458 Pa. 406, 411, 327 A.2d 27, 30 (1974). For this reason, we do not permit the Commonwealth to obtain a verdict in its favor by appealing to a jury’s attributes other than those of reason and perception. This is all the more true because of the quasi-judicial role of the prosecuting attorney and the likelihood that the jury will trust him in what he says, believing in its innocence that he will always fulfill his role within permissible bounds. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972); Commonwealth v. Sargent, 253 Pa.Super. 566, 385 A.2d 484 (1978). As our representative in the criminal court proceedings, the prosecuting attorney seeks no victims, only justice. Commonwealth v. Revty, supra; Commonwealth v. Sargent, supra. Although he may personally believe that the evidence clearly indicates the accused’s guilt, we allow him only to argue fair deductions and appropriate inferences from the evidence, Commonwealth v. Revty, supra,

[s]o that the jury can dispassionately and objectively evaluate the testimony in a sober and reflective frame of mind that will produce judgment warranted by the evidence and not inspired by emotion or passion.

Commonwealth v. Harvell, 485 Pa. at 411, 327 A.2d at 30. And see Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977). To allow him to do otherwise would be to permit the Commonwealth to overstep the limits which we have imposed for the protection of an individual’s fundamental rights and liberties.

With the foregoing firmly in mind we turn now to the case at bar, which is, as we have intimated above, a prosecution for rape and kidnapping.- The uncontroverted-evidence shows the following to be true. In the early evening of August 10, 1975 the victim, a young woman of seventeen, was walking along a road in York County on her way home. As she proceeded she was accosted by six men in a pick-up truck. Four of the men were in the rear of the vehicle; the other two were seated in its cab. They made several lewd remarks and then suddenly two of the six snatched her from the roadside, deposited her in the rear of the truck, and returned themselves to their former positions, whereupon the vehicle sped away from the scene of the abduction. The victim was later able to identify one of the two abductors who first laid hands on her as one of the passengers in the rear of the truck. Her second captor was the passenger in the truck’s cab. The victim was unable to see this man’s face, but could see the length and color of his hair, which was similar to appellant’s. The truck travelled the back roads of York County for some time, making at least one stop before reaching its destination. During this traverse of the county, the victim was able to catch glimpses of appellant, who was then seated in the passenger’s seat of the truck and who turned several times to look out the back window at the doings in the rear of the vehicle.

■ Upon arriving in a deserted area of the county, the victim was removed from the truck and taken several yards from the vehicle. She was forced to the ground and raped by at least four members of the group, but not by appellant. When the victim feigned unconsciousness she was taken to nearby Shrewsbury and dumped beside the road. After some initial panic she ran to the house of a friend who summoned police and medical assistance.

Immediately following these events the victim was able to identify with precision the four men who had been in the rear of the truck, all of whom were subsequently convicted of rape. Her description of the fifth man was less clear, but she could say that he had hair of a color and length similar to the second of her two abductors, and that she saw his face, following the abduction, at which time he was in the truck’s passenger’s seat. Furthermore, she could say that this fifth man had been present at the scene of the rape, but had not known her carnally himself. Of the sixth man she could give no description whatsoever.

Some months after the incident the victim identified appellant as the fifth man, and based on his hair color and his position in the cab of the truck when she first saw his face, as the second of the two abductors. He was subsequently arrested and charged with three violations of the Pennsylvania Crimes Code, specifically, Section 3121(1) (rape by forcible compulsion), Section 2901(a)(3) (kidnapping to inflict bodily injury or to terrorize the victim), and Section 2702(a)(1) (aggravated assault). Crimes Code, 18 Pa.C.S. §§ 3121(1), 2901(a)(3), 2702(a)(1). At trial, the Commonwealth sought to prove that appellant was one of the two men who had originally removed the victim from the roadside, based on the victim’s identification of appellant. The Commonwealth also sought to prove that appellant acted as an accomplice to the victim’s subsequent rape and confinement. Appellant’s defense to the initial abduction rested on the contention that the victim was mistaken in her identification of him as one of the abductors. He admitted that when the victim first saw his face he was seated on the right side of the vehicle, but denied he participated in the abduction. He contended, rather, that at the time of the abduction he was the driver of the truck, and that by the time the victim first had the opportunity to see him he had been obliged by his fellows to yield the steering wheel to one less intoxicated than he. He further argued that the coincidence of similar hair color and the change in seating arrangements inside the cab worked together to create the impression in the victim’s mind that he was the abductor. Appellant presented corroborating testimony concerning his inebriation and the fact that his fellows obliged him to let someone else drive. In defense to the Commonwealth’s theory that he acted as an accomplice to the victim’s subsequent confinement and rape, appellant sought to exculpate himself on the theory that his inebriation was so extensive that he was incapable of forming the requisite intent to aid and abet the commission of the crime physically perpetrated by his companions. Appellant demurred to the assault charge, which demurrer was sustained. The jury found appellant guilty of the two remaining counts and the court subsequently sentenced him to a term of imprisonment of not less than seven and one half and not more than fifteen years in a state correctional institution. It is from this judgment of sentence that the appeal is brought.

Appellant contends that the trial court committed error when it refused to grant a motion for mistrial following allegedly prejudicial remarks by the prosecuting attorney during his summation speech. Immediately following the prosecutor’s summation, counsel for appellant moved for a mistrial based on the allegedly prejudicial remarks the prosecutor had made. Since the argument was recorded, an objection at the close thereof was timely. See Commonwealth v. Gilman, supra; Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287 (1976); Commonwealth v. Allessie, 267 Pa.Super. 334, 406 A.2d 1068 (1979). The causes for the mistrial motion were reiterated in appellant’s post-verdict motions and are thus preserved for our review.

Essentially, appellant has preserved for our consideration four types of alleged prejudicial statements by the prosecuting attorney during his summation speech:

(1) an alleged “guarantee” to the jury that the victim would recall clearly what happened to her because of the intense emotion associated with the events;
(2) the argument that appellant’s failure to call a witness—one of the four men previously convicted of the same crime—allows the jury to infer that his testimony would have been damaging to the defendant had defendant called him;
(3) continuous personal remarks by the prosecutor which placed his own credibility at issue;
(4) the claim that defense counsel was attempting to make the jury appear foolish.

We can dispose of the first and second alleged prejudicial remarks without extensive discussion. Appellant contends that the prosecutor “guaranteed” to the jury that the victim recalled her experience completely and fully. This so-called “guarantee” was nothing more than the argument that someone who had experienced emotional trauma as intense as the victim’s rape must have been would recall the facts associated with that trauma exactly as they had occurred. This was clearly not improper argument. See Commonwealth v. Gunderman, 268 Pa.Super. 142, 147, 407 A.2d 870, 872 (1979) (Opinion per Cercone, P. J.) (Footnote 1). As for the argument concerning the missing witness we can find nothing prejudicial in it. See Commonwealth v. Gwaltney, 479 Pa. 88, 387 A.2d 848 (1978).

The remaining remarks require somewhat more discussion. In considering these remarks we must be mindful of the fact that the balance in this case is a delicate one. This was not the case of a prosecution for actual rape. The violators of the victim’s corporal sanctity had already been brought to justice. In the instant case, however, there was neither evidence presented nor the contention made that appellant was one of the rapists. Rather, the question to be placed before the jury on the rape charge was one subtler than whether appellant had or had not violated the victim’s person. It was to be a question which dealt with appellant’s intent: did he aid and abet his fellows in their heinous act, or was he merely present, too drunk to come even to his own aid? As for the kidnapping charge, the question was to be whether the victim correctly or incorrectly deduced that appellant was one of the abductors based on her observations only of the perpetrator’s hair color and that the cab’s passenger had done the deed, and conclusion that appellant, who admits to having been in the passenger’s seat later, was seated there at the time of the abduction. The circumstances of the case and the evidence adduced at trial raised fine questions for the jury’s determination. Although these questions were not so subtle that the jury, in its wisdom, and guided by its common sense and a dispassioned analysis of the evidence, could not have decided them, they were of such a nature that the jury easily could have been swayed to render an improper verdict by the prejudicial remarks of an over-zealous prosecutor.

The pertinent portions of the prosecutor’s summation reads as follows:

“May it please the Court, defense counsel, gentlemen of the Jury. I am not going to spend an hour and a half talking to you like [Defense Counsel] did, Because [sic] I don’t believe it takes one and a half hours for you to evaluate and to think about the facts and to make a decision based on justice.
4: * * * * ❖
You know, gentlemen, defense counsel, and I say this sincerely and I also say this in terms of argument, but the defense counsel, I believe, is trying to make a fool out of this Jury.
4s 4s 4s 4: 4s ¥
Gentlemen, if I could relay the story—and this has nothing to do with the evidence, but something that happened to me and I think you can think in terms of your own lives, because something similar may have happened to you.
When I was in college in 1963, November 22nd, 1963, and I will never forget that date, because on that date John F. Kennedy was killed. I remember I was driving to school and I remember this and I remember it very distinctly and I walked onto the campus and a girl I had dated came up to me and said, “Dan, you heard that Kennedy was killed,” and she said, “I am glad it happened. He deserved it.” Quite frankly, gentlemen, that stunned me and I will never forget that if I live to be 110 years old, because the death of the President at that time was a very emotional thing for me, extremely emotional thing for me, but more than that, the statement made by that girl, and I know what she was saying, and I know what she was wearing, I know where she was standing, and I remember everyone around her. I remember it very well.
* * * * *
All of this that [Defense Counsel] wants to throw at you about the method of identification and the issue whether or not he was charged at this time or another time, all of that was fully resolved on July 26th. On July 26th of this year there was a full pre-trial hearing on this whole issue. . .
[Defense Counsel]:
I object, Your Honor.
THE COURT:
I don’t think we should go into the pre-trial procedure and I will tell the Jury to disregard that.
[The Commonwealth]:
Gentlemen, I would say one other thing, I would say that this issue has been resolved. . .
[Defense Counsel]
I have to again object, Your Honor.
THE COURT:
Are you going to say the same thing, or something else? [The Commonwealth]
I will continue. . .
THE COURT:
We will repeat the statement, gentlemen, Pre-Trial proceedings are something else. They are not before you and shouldn’t be considered by you and you will disregard them.
* * % * * *
[The Commonwealth]
Gentlemen, [Defense Counsel] mentioned reasonable doubt. The Commonwealth does not have to prove absolute doubt. Once I had a high school teacher say to me, some people would have difficulty proving they are even alive. We are not under that obligation. We are under the obligation of reasonable doubt. May I state, gentlemen, this is not a TV program, this is not Kojack [sic]. I don’t go into the back room and turn on a movie projector, and I don’t show you all the facts, you have to listen to the facts and make a decision based upon credibility.
Gentlemen, I represent the county, and I am sworn to represent in this county 225,000 people. . .
[Defense Counsel]: I object. ...
THE COURT:
I will overrule that objection....
[The Commonwealth]
As I indicated to you, I represent 225,000 people in this Commonwealth, but also gentlemen, I think you should think about this carefully, you also represent this community and that’s why, in fact we have juries. Because we want the people of the Commonwealth to judge it’s offenders, making decisions as to their guilt or their lack of guilt. Gentlemen, and I mean this seriously, nothing would trouble me more and. . .
THE COURT:
[Mr. Prosecutor], could I see you a moment please? SIDE BAR:
THE COURT:
You are all right so far, but you have a habit of using “I” and “me” and I wish you would keep it out. You are getting close to, I don’t know if you are pointing in that direction, of giving a personal opinion or you “believe this” or you “believe that.” I think it’s better just to talk in terms of suggesting or indicate without getting so personal.”

It is undeniably clear that the tone and tenor of the prosecutor’s summation is personal. The passages above set out do not constitute isolated personal-references or slips into the use of the grammatical first person, but rather a continual stream of personal remarks and anecdotes. The inevitable effect of such a concentration of personal remarks by the prosecutor is to introduce to the jury’s minds a question concerning the credibility of the prosecutor vis-a-vis appellant and the other defense witnesses. The jury was given more than just glimpses into the prosecuting attorney’s persona, however. At least one of these remarks, the reference to the pre-trial proceeding and the question of appellant’s identification by the victim, was infirm on grounds other than simply the personal innuendo inherent in the remark. The court immediately cautioned the jury to disregard any reference to pre-trial matters, but the prosecutor repeated the remark and the court was forced to caution the jury again.

Perhaps the single most troubling remark is the following one:

You know, gentlemen, defense counsel, and I say this sincerely, and I also say this in terms of argument, but the defense counsel, I believe, is trying to make a fool out of this jury. He wants to make you believe that poor Kenneth Raffenberger is just riding around the country. Got himself a little bit drunk, and really had no idea what he was doing. . . . (Emphasis added)

This statement unmistakenly alters the issue before the jury. No longer were they being asked to determine the witnesses’ or appellant’s credibility, but rather the prosecutor’s; no longer were they being asked to determine whether the evidence showed beyond a reasonable doubt that appellant’s actions fell within the bounds of statutorily prohibited behavior, but to determine whether or not they, the members of the jury, would appear as fools to the 225,000 inhabitants of York County. Furthermore, not only does the remark challenge the jury to render a verdict of guilty because otherwise they would appear foolish, but it expresses a personal opinion about the defendant’s trial strategy. On the latter point the Supreme Court has stated:

• Our decisions have firmly established that the prosecutor may not express his personal opinion regarding a defendant’s guilt, credibility, or trial strategy. We have ruled that [t]he determination of guilt must not be the product of fear or vengeance, but rather intellectually compelled after a disinterested, impartial and fair assessment of the testimony that had been presented. Commonwealth v. Harvell, supra, 458 Pa. at 411, 327 A.2d at 30 (emphasis in original).

Commonwealth v. Gilman, 470 Pa. at 189-190, 368 A.2d at 258. (Footnotes omitted). The prosecutor’s statement undeniably violates the prohibition against comment on defense counsel’s trial strategy. So too does the statement about the pre-trial proceedings when the prosecutor said:

All of this that [Defense Counsel] wants to throw at you about the method of identification....

The statement clearly disparages defense counsel’s method of defending his client. It also implies that the defense strategy was not aimed so much at determining the truth but at hiding it from the jury.

It is, of course, the law in Pennsylvania that not every improper remark by a prosecutor requires the granting of a new trial. Commonwealth v. Crittenton, 326 Pa. 25, 191 A.2d 358 (1937); Commonwealth v. Rodgers, 259 Pa.Super. 376, 393 A.2d 876 (1978); Commonwealth v. Nutter, 256 Pa.Super. 111, 389 A.2d 626 (1978). The Supreme Court has often repeated that

the language of the prosecuting officer which will justify a reversal must be such that its unavoidable effect would be to prejudice the jury, forming in their own minds a fixed bias and hostility toward the defendant, so that they could not fairly weigh in his behalf such circumstances of doubt extenuation, or degree of guilt that may be present in the case, and thus make them unable to render a true verdict.

Commonwealth v. Hoffman, 439 Pa. 348, 355, 266 A.2d 726, 730 (1970), quoting from Commonwealth v. Meyers, 290 Pa. 573, 139 A.2d 374 (1927). Sec also Commonwealth v. Hamilton, 460 Pa. 686, 334 A.2d 588 (1975). Furthermore, allegedly prejudicial remarks must be read in the context of the case as a whole, with a particular view to the evidence presented and reasonable inferences drawn therefrom, in order to determine whether they are indeed prejudicial. See Commonwealth v. Boone, 286 Pa.Super. 384, 428 A.2d 1382 (1981); Commonwealth v. Bullock, 284 Pa.Super. 601, 426 A.2d 657 (1981) (Opinion per Cercone, P. J.).

Taken alone we might be able to say that this remark or that one is not prejudicial, but we must view them together and in the context of the entire case. So read, the picture they present is a bleak one. Given the subtle nature of the issues and of the evidence before the jury, such conduct by the prosecutor must necessarily have had the unavoidable effect of prejudicing them, of placing before them issues which they should not properly have considered, of forming in their minds a fixed bias and hostility such that they could not fairly weigh the circumstances of doubt extenuation present in the case and thus render them incapable of arriving at an intellectually compelled and disinterested verdict. Cf. Commonwealth v. Hoffman, supra; Commonwealth v. Gilman, supra. In uttering these statements the prosecutor had crossed the boundary of permissible advocacy and begun to traverse the tundra where the trees of dispassionate perception and disinterested reason find no root. It is this sort of excess in criminal proceedings from which we have sought to protect ourselves. By law and reason, we must reverse this conviction, and grant appellant a new and fairer trial.

Before we arrive at the final disposition of the case we must consider one final assignment of error: whether the Commonwealth violated appellant’s rights to a speedy trial, as that term has been interpreted by the Supreme Court in Rule 1100 of the Pennsylvania Rules of Criminal Procedure. Pa.R.Crim.P. 1100. The instant complaint against appellant was filed on February 2, 1976. Appellant entered a plea of guilty on May 25, 1976, which plea was subsequently withdrawn on June 26, 1976. Appellant’s case was called to trial July 27, 1976, a date which fell within the 180 day period required by Rule 1100. During the presentation of the Commonwealth’s case in chief the court granted a defense motion for mistrial because of a prejudicial statement made by a Commonwealth witness. On July 30, 1976 the Commonwealth filed a petition to extend the time for trial, also within the 180 day period. A hearing was held on the petition August 16,1976 at which time the court granted an extension to try appellant until the last day of August 1976. The second trial was held August 26, 1976. Appellant contends that the Commonwealth did not show its due diligence in bringing him to trial, and that his further prosecution should be barred because of the intentional prosecutorial misconduct which allegedly elicited the witness’s prejudicial remark and resulted in appellant’s motion for mistrial. The record clearly shows otherwise; but for the defense’s withdrawal of the guilty plea and subsequent motion for mistrial, which was occasioned by a witness’s unprovoked prejudicial statement, there would have been no Rule 1100 problem in this case. Because appellant was timely brought to trial initially there is no problem in remanding this case for new trial.

Judgment of sentence reversed, conviction vacated, and case remanded for a new trial.

WATKINS, Judge,

concurring and dissenting:

I agree with that portion of the Majority’s opinion that holds that the defendant’s Rule 1100 rights were not violated.

I disagree with the Majority’s reasoning with respect to the issue of whether the prosecutor’s remarks were so prejudicial to the defendant that he was denied a fair and impartial trial. I would hold that the trial court’s instructions to the jury cured any impropriety in the Commonwealth’s summation. Not every improper remark by a prosecutor warrants a new trial and the trial judge must have reasonable discretion in deciding whether the bounds of propriety have been exceeded. Commonwealth v. McNeal, 456 Pa. 394, 319 A.2d 669 (1974). I would hold that the trial court did not abuse its discretion in this case.

      . See Commonwealth v. Gilman, supra, 470 Pa. at 188, 368 A.2d at 257, quoting the following from the ABA Project on Minimum Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, Prosecution Function § 1.1 (approved Draft, 1971), commentary at 44:
      “Although the prosecutor operates within the adversary system, it is fundamental that his obligation is to protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the public.”
      Furthermore, Section 5.8 of the ABA Standards states:
      “(a) The prosecutor may argue all reasonable inferences from the evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
      (b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
      (c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
      (d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.”

        Cf. Commonwealth v. Gilman, supra, and cases cited there.

      . Appellant has assigned four other errors, three of which we need not discuss in light of our disposition today. Those three assignments of error are: 1) failure to grant a new trial following contamination of the jury when the victim’s boyfriend conversed with one of the jurors; 2) error in the charge to the jury; 3) ineffective assistance of counsel. We will address the fourth assignment of error, an allegation of the violation of appellant’s Rule 1100 rights.

      . We note, in passing, that cautionary remarks are not always sufficient to cure the harm done by a prejudicial statement. See Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976) (Footnote 7); and Commonwealth v. Russell, 456 Pa. 559, 322 A.2d 127 (1974).


source: Caselaw Access Project

author: CAVANAUGH, Judge: HESTER, Judge,

license: Public Domain

text:
    435 A.2d 872
    COMMONWEALTH of Pennsylvania, v. Milton QUACKENBUSH, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1980.
    Filed Sept. 25, 1981.

      John Kocsis, Athens, for appellant.
    Leonard Frawley, District Attorney, Towanda, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

The defendant appeals from an order directing his extradition to New York. He argues, one, that his confinement in jail for more than thirty days without a hearing to extend his confinement violated the Uniform Criminal Extradition Act, 42 Pa.C.S.A. §§ 9136, 9138; and, two, that the Commonwealth failed to establish that the defendant was the person sought by New York for extradition. We affirm.

On November 5, 1979, the defendant was imprisoned in Bradford County in lieu of $10,000 bail on charges of rape, involuntary deviate sexual intercourse, indecent assault, and terroristic threats. Sometime before December 19, a detain-er from New York was lodged against him. This detainer is dated November 16, 1979 by the New York authorities, but the date that it was received by the Bradford County authorities does not appear on the record. On December 19 the Pennsylvania charges which were pending against the defendant were “dismissed by the district attorney” before the preliminary hearing on those charges was to be held.

On December 20 the defendant filed a petition for a writ of habeas corpus; and the lower court issued the writ and ordered a hearing for the next day. Later on December 20 based upon the detainer a complaint was filed charging the defendant with being a fugitive from justice. A preliminary arraignment was held that same day and in lieu of bail the defendant was held in confinement.

At the habeas corpus hearing on December 21 the defendant contended that he was illegally confined from the time the local charges had been dismissed on December 19 until the time the writ of habeas corpus was issued on December 20. The lower court denied the petition for a writ of habeas corpus.

On January 7, 1980 defendant filed his second petition for a writ of habeas corpus. A hearing was held on this matter on January 15, 1980. The defendant contended that in contravention of 42 Pa.C.S.A. § 9136 he was held for more than thirty days. On January 18, 1980 the Commonwealth filed a petition to continue the defendant’s confinement pending receipt of the extradition paper; a hearing was held on this petition on January 21, 1980. On January 25 the lower court denied the petition for habeas corpus and granted the Commonwealth’s petition to continue the defendant’s confinement.

On February 8 after an. extradition hearing was held and the Governor’s warrant was served, the lower court ordered the defendant to be extradited. The lower court refused to stay its order, but this court granted a stay pending appeal.

Under the Uniform Criminal Extradition Act an accused may be committed to jail for up to thirty days to allow his arrest on Governor’s warrant pursuant to a request by the demanding state. 42 Pa.C.S.A. § 9136. If the accused is not arrested under the Governor’s warrant within the initial thirty day period, he may be recommitted for a further period not to exceed sixty days. 42 Pa.C.S.A. § 9138. Although the statute, 42 Pa.C.S.A. § 9138, does not expressly require a hearing before an accused may be recommitted for another period of up to sixty days, our case law has imposed such a requirement. See Commonwealth ex rel. Colbert v. Aytch, 246 Pa.Super. 278, 369 A.2d 1321 (1976) affd. 478 Pa. 314, 386 A.2d 950 (1978); Commonwealth v. Murphy, 236 Pa.Super. 37, 344 A.2d 662, 664 (1975), allocatur denied. Furthermore, even though the alleged fugitive may already be in custody on other charges, the lodging of a detainer commences the period under the Uniform Criminal Extradition Act. Commonwealth ex rel. Knowles v. Lester, 456 Pa. 423, 321 A.2d 637 (1974).

Instantly the defendant argues that he should be discharged because the Commonwealth’s petition to extend the defendant’s confinement was not filed within thirty days of the time the detainer was lodged. The record is not clear as to when the detainer was lodged with the Bradford County authorities. The record does show that the detainer was signed by New York authorities on November 16, 1979. However, the Bradford County warden did not know the exact date it was received; he could only testify that it was received “within a very short space of time” after November 16, 1979. N.T. January 15, 1980, 2. Because of the indefinite nature of the evidence on this matter the lower court judge found that it was filed before December 19, 1979. Lower Court Order January 25, 1980. For purposes of analysis we will assume that the detainer was filed with the Bradford County authorities on November 17, 1979. Thus the initial thirty day period would elapse on December 17, 1979. By December 17, 1979 no hearing had been held to extend the defendant’s confinement. However, on December 20 the defendant was arraigned and on December 21 in response to defendant’s petition for habeas corpus, a hearing was held. In our view that hearing satisfied our case law requirement that a hearing be held to recommit the defendant for a further period of up to sixty days.

Title 42 Pa.C.S.A. § 9138 provides:

If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant or bond, a judge or issuing authority may discharge him or may recommit him for a further period, not to exceed 60 days, or a judge or issuing authority may again take bail for his appearance and surrender, as provided in section 9137 (relating to bail), but within a period not to exceed 60 days after the date of such new bond.

Thus under 42 Pa.C.S.A. § 9138 if an accused is not arrested under a Governor’s warrant, the judge or issuing authority may discharge him, recommit him, or continue his bail.

At the habeas corpus hearing held on December 21 defense counsel was present. The hearing disclosed that the defendant had been held in jail since November 5 on local charges of rape, involuntary deviate sexual intercourse, indecent assault and terroristic threats; that these charges were dismissed on December 19; and that on December 20 defendant was arraigned on charges of being a fugitive from justice based on information which was received from New York authorities before December 19. During the hearing defense counsel moved to reduce bail.

Thus at the hearing held on December 21, the judge knew the period of time the defendant had spent in jail, the reasons for his confinement, and that he had been arraigned on a charge of being a fugitive from New York based on information received from New York. It was clear that the defendant had not yet been arrested on a Governor’s warrant. Moreover, the judge considered whether to discharge the defendant, continue his confinement or reduce his bail. Because of the evidence adduced at the hearing and the judge’s awareness of the available alternatives, i. e., discharge, continued confinement, and reduction of bail, we hold that the hearing of December 21 satisfied the requirement that a hearing be held to recommit the defendant. Moreover we hold that although, as we have assumed above, the hearing may not have been held within thirty days of the time the detainer was lodged, since it was held at the latest within thirty-four days of the time the detainer was lodged, the defendant may not be discharged for lack of a timely hearing. We so hold because as in other cases there has been substantial compliance with the Uniform Criminal Extradition Act. Commonwealth ex rel. Osburn v. Haas, 439 Pa. 341, 268 A.2d 85 (1970); Commonwealth ex rel. Myers v. Case, 250 Pa.Super. 242, 378 A.2d 917 (1977); Commonwealth ex rel. Simpson v. Aytch, 247 Pa.Super. 348, 372 A.2d 861 (1977); Commonwealth v. Murphy, 236 Pa.Super. 37, 344 A.2d 662 (1975) allocatur denied.

In Commonwealth ex rel. Myers v. Case, supra, the lower court discharged the accused because the Governor’s warrant had not been served within ninety days, the maximum time for confinement under the Uniform Criminal Extradition Act. 42 Pa.C.S.A. §§ 9136, 9138. On appeal this court reversed and ordered extradition. The accused had been arrested on local charges and was subsequently charged with being a fugitive from justice. He was arrested and arraigned on the fugitive charge and New Jersey lodged a fugitive detainer against him with Pennsylvania authorities. A Governor’s warrant was received within the ninety day period, but since the accused was serving a sentence on the local charges at that time, the warrant was not executed. After the accused was paroled, however, the Governor’s warrant was executed; this was fifteen days after the ninety day period had elapsed. In reversing the lower court we stated:

it is apparent that the Commonwealth’s failure to execute the Governor’s Warrant was not an “oversight.” The Commonwealth deliberately failed to act until after the relator had been paroled on his local sentence. However, the execution of the Governor’s Warrant still occurred within fifteen days after the expiration of the ninety day period. Certainly, in view of the safeguards afforded the relator, this violation of the Act can only be classified as technical.

Commonwealth ex rel. Myers v. Case, supra 250 Pa.Super. at 248, 378 A.2d at 920 (footnote omitted). We also stated that “technical or formal objections will not invalidate an extradition proceeding” and that substantial compliance with the statute would be sufficient. Id., 250 Pa.Super. at 246, 378 A.2d at 919.

Thus, Myers permitted extradition even though the Governor’s warrant was executed fifteen days beyond the maximum ninety day period provided by statute. Unlike Myers the instant case does not involve a period beyond the maximum ninety day period rather it involves four days beyond the initial thirty day period provided by statute. Since Myers permitted extradition fifteen days after the maximum period had elapsed, we hold that the lapse of four days after the initial statutory period does not bar extradition under the circumstances of the instant case. This is especially true since under other circumstances we have permitted extradition when the 42 Pa. C.S.A. § 9138 hearing was held two days beyond the initial thirty day period. Commonwealth v. Murphy, 236 Pa.Super. 37, 344 A.2d 662 (1975) allocatur denied (involving 19 P.S. § 191.17, the predecessor to 42 Pa. C.S.A. § 9138).

We recognize that there are cases which have refused to allow extradition when the statute has not been complied with. Those cases, however, are different from the instant case. For example in some cases more than ninety days had elapsed before there was even an arraignment on the fugitive charges. Commonwealth v. Hude, 483 Pa. 489, 397 A.2d 772 (1979) (defendant had not been arraigned, see Superior Court opinion, 242 Pa.Super. 555, 364 A.2d 413, 419 (1976)); Commonwealth ex rel. Knowles v. Lester, 456 Pa. 423, 321 A.2d 637 (1974); Commonwealth ex rel. Coffman v. Aytch, 238 Pa.Super. 584, 361 A.2d 652 (1976); Commonwealth v. Woods, 229 Pa.Super. 473, 326 A.2d 626 (1974). In Commonwealth v. McCaine, 218 Pa.Super. 274, 275 A.2d 867 (1971), more than sixty-three days had elapsed before any type of hearing was held and since the hearing required by the existing statute 19 P.S. § 191.14 (now 42 Pa. C.S.A. § 9135) had not been held the extradition order was reversed.

Additionally we note that even if the defendant should have been released from custody for lack of an extension hearing under 42 Pa. C.S.A. § 9138 within thirty days, the defendant could still be extradited pursuant to a Governor’s warrant. Commonwealth ex rel. Berry v. Aytch, 253 Pa.Super. 312, 317, 385 A.2d 354, 356 (1978); Commonwealth ex rel. McCaine v. Gedney, 237 Pa.Super. 499, 500, 352 A.2d 72, 73 (1975); Commonwealth ex rel. Douglass v. Aytch, 225 Pa.Super. 195, 310 A.2d 313 (1973); Uniform Criminal Extradition and Rendition Act, § 2-104, 11 Uniform Laws Annotated (1981 pocket supplement).

Defendant also argues that the Commonwealth failed to properly identify him as the subject charged with a crime in the demanding state. In Commonwealth v. Rowe, 264 Pa. Super. 67, 398 A.2d 1060 (1979), we stated:

in every extradition proceeding “the relator has an absolute right to require that his identity as the person named in the Extradition Requisition be established and proved by the weight of credible evidence.” Commonwealth ex rel. Edgar v. Davis, 425 Pa. 133, 136, 228 A.2d 742, 744 (1967). Because the guilt or innocence of the accused is not in question, however, Commonwealth ex rel. Edgar v. Davis, supra, the Commonwealth’s burden is not measured against the “beyond a reasonable doubt” standard, but merely against the “preponderance of the evidence” standard. “[Cjompetent evidence to establish reasonable ground is not necessarily evidence sufficient to convict, nor only such as can pass technical rules governing the admissibility of evidence in criminal trials.” United States ex rel. Vitiello v. Flood, 374 F.2d 554, 557 (2d Cir. 1967), quoting United States ex rel. Klein v. Mulligan, 50 F.2d 687, 688 (2d Cir. 1931).

Id., 264 Pa.Super. at 70, 398 A.2d at 1061-62.

Moreover, in Commonwealth v. Kulp, 225 Pa.Super. 345, 310 A.2d 399 (1973) allocatur denied, we stated:

Given the summary nature of interstate rendition proceedings, an accused is not entitled to receive the full panoply of procedural protections normally accorded to a defendant in a criminal trial. United States ex rel. Vitiello v. Flood, 374 F.2d 554, 557 (2 Cir. 1967); Luker v. Koch, 489 P.2d 191 (Colo.Sup.Ct., 1971); Commonwealth v. Glavin, 354 Mass. 69, 235 N.E.2d 547 (1968). Thus, statements allegedly given by the subject of an extradition proceeding in violation of his constitutional rights, United States v. Flood, supra, and evidence which has allegedly been illegally seized. Martin v. Maryland, 287 A.2d 823, 828 (D.C.Ct.Apps.1972) may be introduced at an extradition hearing. Courts in asylum states will not consider issues which are best raised at trial. Martin v. Maryland, supra. This does not mean that constitutional violations are to be ignored at an extradition proceeding. The manner in which evidence has been obtained will have a bearing on the weight which the court accords to it in an extradition proceeding. See United States v. Flood, supra, 374 F.2d at 558.

Id., 225 Pa.Super. at 348, 310 A.2d at 400.

We have also permitted hearsay testimony in extradition proceedings. Commonwealth ex rel. Pizzo v. Aytch, 273 Pa.Super. 55, 60, 416 A.2d 1086, 1089 (1979); Commonwealth v. Rowe, supra; Commonwealth v. Murphy, supra.

Instantly, the Commonwealth presented only one witness, a New York detective, to prove the defendant was the subject charged with a crime in the demanding state; no testimony was presented by the defense. The witness testified that the victim identified the defendant in his presence, that the victim selected the defendant’s photograph from a group of eight photographs and that the defendant admitted that on the relevant date he was in the area in which the victim alleges the incident had occurred. Defendant argues that when the witness identified the defendant, he did so in response to a suggestive question by the district attorney. Although it is true that the district attorney’s question was suggestive, we do not agree, as the defendant contends, that it tainted the witness’s testimony. We find that the witness’s testimony was supported by his first hand knowledge of statements made by the defendant and the victim and by the photographs selected by the victim; it was not the product of the district attorney’s suggestive question.

The defendant’s argument that the victim’s identification of the defendant in person and through the photographs was impermissibly suggestive is not persuasive, in light of the defendant’s statements to the witness and in light of the Commonwealth’s burden to prove identity only by a preponderance of the evidence.

Finally the defendant’s argument that the Commonwealth’s evidence is somehow insufficient since it did not choose to have the victim testify although she was in a room adjacent to the courtroom has no merit. As we have previously stated in this opinion, hearsay testimony is admissible. Commonwealth ex rel. Pizzo v. Aytch, supra; Commonwealth v. Rowe, supra; Commonwealth v. Murphy, supra. Moreover, we have previously held hearsay testimony was properly considered even though the hearsay declarant was in the vicinity of the courtroom. Commonwealth v. Rowe, supra, 264 Pa.Super. at 72 n.2, 398 A.2d at 1062 n.2. Thus, we conclude that the evidence was sufficient to prove the defendant was the subject charged with a crime in the demanding state.

Order of the lower court ordering extradition is affirmed. The Superior Court’s supersedeas order is hereby vacated.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent for the reasons set forth in my Dissenting Opinion in the case of Commonwealth ex rel. Lewis Quackenbush v. Warden of the Bradford County Jail, (J. 1251/80), 291 Pa.Super. 358, 435 A.2d 1266 (1981).

      . In the lower court the Commonwealth argued that the statutory period commences when the defendant was brought before the magistrate on the fugitive warrant.


author: PER CURIAM:

text:
    435 A.2d 877
    William WHITFIELD, Appellant, v. John and Eulah FARRIOR, his wife, and doing business as Al’s 26 Bar Corporation, and Arnold Farrior.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed Oct. 2, 1981.

      Charles S. Lieberman, Philadelphia, for appellant.
    David Kanner, Philadelphia, for appellees.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   PER CURIAM:

Following a nonjury trial in this trespass action, the lower court entered a verdict for appellant in the amount of $25,000 against appellee Arnold Farrior only. Appellant subsequently filed exceptions challenging the lower court’s finding in favor of the remaining appellees. Following the denial of his exceptions, appellant took this appeal. We are unable to reach the merits of this appeal, however, because the order denying appellant’s exceptions has not been reduced to judgment and docketed.

It is settled that an order disposing of exceptions following a nonjury trial is interlocutory and nonappealable. Heffner v. Bock, 287 Pa.Super. 345, 430 A.2d 318 (1981). See also Lashner v. Redevelopment Authority of the City of Philadelphia, 286 Pa.Super. 549, 429 A.2d 659 (1981); Unterberger v. Life Assurance Co. of Pennsylvania, 286 Pa.Super. 469, 429 A.2d 34 (1981); Slaseman v. Myers, 285 Pa.Super. 167, 427 A.2d 165 (1981); Penstan Supply Co. v. Hay, 283 Pa.Super. 558, 424 A.2d 950 (1981). “Such an order does not become appealable until, ‘on praecipe of any party,’ Pa.R.A.P. 301(d), it is ‘reduced to judgment and docketed,’ Pa.R.A.P. 301(c). And see Pa.R.C.P. 1038(e). The requirement that judgment be docketed is jurisdictional.” Unterberger v. Life Assurance Co. of Pennsylvania, supra, 286 Pa.Super. at 470, 429 A.2d at 35.

Gadbois v. Leb-Co. Builders, Inc., 290 Pa.Super. 523, 525, 434 A.2d 1267, 1267-1268 (1981). Accord, Coren v. DiDomenico, 291 Pa.Super. 331, 435 A.2d 1252 (1981). Because this requirement has not been met in the present case, the appeal is premature and must be quashed.

Appeal quashed.


text:
    435 A.2d 878
    In re Michael McGOVERN. Appeal of R. Marlene REAM.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Oct. 2, 1981.

      D. Patrick Zimmerman, Lancaster, for appellant.
    J. Elvin Kraybill, Lancaster, for participating party.
    Before CAVANAUGH, DiSALLE and MONTEMURO, JJ.
   PER CURIAM:

This appeal is from the lower court’s denial of a petition filed on behalf of appellant, R. Marlene Ream, for the discovery of juvenile records. The petition avers that appellant was shot in the hand with a BB rifle fired by Michael Me Govern, the juvenile whose records are in question, and that the appellant has elected to bring a civil action against Michael Me Govern and his parents. Appellant’s attorney, alleging that the records are necessary for the preparation of the case, seeks to discover “the address of the said juvenile, the name and address of the other party with the said juvenile, as well as such other information as he deems relevant.” The Director of the Juvenile Probation and Parole Department of Lancaster County filed an answer to the petition, objecting to the release of the requested information as inconsistent with the purposes of the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., and as not “within any of the exceptions in that Act to the general prohibition of release of information concerning juveniles,” 42 Pa.C.S.A. §§ 6307, 6308.

We hold that this order is not final for purposes of appeal because the appellant has not been put “out of court.” This appeal, therefor, is quashed as interlocutory. Giannini v. Foy, 279 Pa.Super. 553, 421 A.2d 338 (1980).

Appeal quashed.

MONTEMURO, J., concurs in the result.

      . The original petition named appellant’s attorney, not the appellant, as the petitioner. This appeal, however, was taken in the name of the appellant. We note that appellant has not, on the record, signed any supporting affidavit. Under the circumstances, we have serious doubts as to the attorney’s standing to file the petition in the first instance, or appellant’s standing to take this appeal. We will not address these issues, however, because of our disposition of this appeal.

      . Appellant has not, as of the taking of this appeal, filed such action.

      . We also note that the petition was properly denied because appellant has failed to exhaust other avenues to obtain the desired information. In addition, the petition fails to establish that the information sought is within any of the exceptions above referred to.


author: CAVANAUGH, Judge:

text:
    435 A.2d 879
    Carol DUNBAR, Appellant, v. James C. DUNBAR, Jr.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1980.
    Filed Oct. 9, 1981.

      Theodore F. Huckestein, Jr., Pittsburgh, for appellant.
    John L. Bailey, Pittsburgh, for appellee.
    Before CAVANAUGH and HOFFMAN, JJ.
   CAVANAUGH, Judge:

The dispute in this case involves the amount of child support the father-appellee should be required to pay. The parties were divorced in 1975 and the father was subsequently ordered to pay $400.00 per month for support of his three children. The lower court was presented with a petition to increase support and for attachment for noncompliance by the mother, and a petition to decrease the support order and strike the arrears by the father. The lower court decreased the monthly award to $200.00; ordered a wage attachment for that amount; and modified the previous order to allow for the payment of arrears, which had been reduced to judgment, in monthly installments of $40.00. Mrs. Dunbar appeals. We reverse and remand.

Mr. Dunbar made the required support payments until September, 1976. At that time he sought relief from the order from the Administrative Judge of the Family Division in Allegheny County due to the fact that a creditor had attached his bank accounts. In the ensuing two years four hearings before three different judges were held as a result of the father’s failure to comply with the support order. (Mr. Dunbar is a real estate developer who met with serious business reversals, as will be demonstrated in greater detail below).

The first hearing was held before Judge Zeleznik on January 24, 1977, under Mrs. Dunbar’s rule to enforce the support order. After a hearing the court continued the case for approximately forty-five days. The court noted in its order that Mr. Dunbar’s bank accounts had been garnished. On June 13, 1977, the parties again appeared before Judge Zeleznik to consider Mr. Dunbar’s Rule to suspend the arrears and cancel the support order, and Mrs. Dunbar’s petition to reduce the arrears to judgment. On September 22, 1977, the court ordered that the record arrears of $4,100.00 be reduced to judgment, that the Rule to suspend arrears and cancel the support order be discharged and that the existing support order remain in full force and effect.

The third hearing was held to consider Mrs. Dunbar’s petition for contempt. The court, by Judge Bigley, made the rule for contempt absolute and ordered Mr. Dunbar incarcerated unless he paid the record arrears of $2,800.00 within thirty days. The final contempt hearing was continued for three weeks so that Mr. Dunbar could make a three week trip to Europe. The postponement was allowed because Mr. Dunbar’s father tendered a $500.00 support payment on his son’s behalf. Mr. Dunbar was subsequently sentenced to sixty days in the Allegheny County jail, but was released early due to good behavior and for health reasons. Following his release, the support order was reinstated in all respects and Mr. Dunbar was ordered to pay the sum of $2,800.00 to Mrs. Dunbar within sixty days. The court noted that funds from a certain bank account had become available to the father from which he could make the support payments.

The fourth hearing was held on October 5, 1978, before Judge Kaplan. Stating that changed circumstances now render the father incapable of paying the prior support order, the lower court reduced the award by fifty per cent and modified the previous order to pay arrears in a lump sum to allow for monthly installment payments. The appellant-mother argues that the support order should have been increased rather than decreased because of appellee’s improved circumstances since the prior hearing.

The scope of review in a support case is a narrow one. Absent a clear abuse of discretion, the appellate court will defer to the order of the lower court. Banks v. Banks, 275 Pa.Super. 439, 418 A.2d 1370 (1980); Weiser v. Weiser, 238 Pa.Super. 488, 362 A.2d 287 (1976); Comm. ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa.Super. 301, 310 A.2d 672 (1973). The hearing judge has seen and heard the witnesses, and so has the better opportunity to evaluate the issues on their merits. Banks v. Banks, supra, 275 Pa.Super. at 445, 418 A.2d at 1373; Com. ex rel. Friedman v. Friedman, 223 Pa.Super. 66, 67, 297 A.2d 158, 159 (1972). Orders of support are not final and may be increased or decreased where the financial conditions of the parties change. Banks v. Banks, supra; Com. ex rel. Fusco v. Fusco, 247 Pa.Super. 413, 372 A.2d 893 (1977). However, a party seeking to modify a support order has the burden of proving by competent evidence the existence of materially and substantially changed circumstances since the entry of a prior order. Com. ex rel. Delbaugh v. Delbaugh, 258 Pa.Super. 127, 392 A.2d 717 (1978); Com. ex rel. Hall v. Hall, 243 Pa.Super. 162, 364 A.2d 500, remanded, 259 Pa.Super. 214, 393 A.2d 794 (1978). Thus a petition to modify an order of support is not a substitute for an appeal and cannot bring up for review matters adjudicated in making the prior order. Com. ex rel. Eppolito v. Eppolito, 245 Pa.Super. 93, 369 A.2d 309 (1976); Com. ex rel. Long v. Long, 181 Pa.Super. 41, 121 A.2d 888 (1956).

Although the lower court held that the reduction of the award from four hundred to two hundred dollars was justified by changed circumstances, our own review of the record brings us to a contrary conclusion. Mr. Dunbar, as a real estate developer, has met with serious business reversals. At one time he was quite successful, but at the time of the hearing before Judge Kaplan he was working as a maintenance man for a company owned by his brother in apartment complexes owned by his father. Mr. Dunbar formerly owned a twenty-eight per cent interest in one of the buildings that he now works in as a maintenance man.

A review of the record reveals, however, that these business reversals had been in existence at the time of the prior orders in this matter, and that the appellee’s financial picture had, in fact, improved since the previous order. In July, 1977, Union National Bank filed judgment and attached the father’s bank account so that appellee had no more funds. A partition judgment and an arrearages judgment existed and remained unpaid at the time of the April 28, 1978, hearing preceding the May 1, 1978, order. A nine thousand dollar annual stipend given to appellee by his father commencing in the fall of 1976 was discontinued in December, 1977. The last building project attempted by the appellee as a developer was the Cochran Hall Condominium. The lender for this was Mellon Bank, which foreclosed on the loan in April, 1977. Thus all of Mr. Dunbar’s business reversals, liens, judgments and attachments existed prior to the May 1, 1978 order.

Moreover, the appellee’s financial situation was actually better at the time of the order appealed from instantly than at the time of the previous orders which had upheld the amount of the order and which refused to remit the record arrearages on that obligation. At the time of the hearing below the appellee’s liens and judgments had been satisfied. With the exception of the $2,800.00 in outstanding support arrearages, his statement sheet would have read “zero assets and zero liabilities.” Counsel for the father conceded that, “this management job that he has is really more income than he’s had in three or four years... so actually, this will be the first time in years that he’s had a W 2.” Therefore, we hold that the lower court erred in reducing the award due to the absence of materially and substantially changed circumstances.

Mrs. Dunbar argues that materially and substantially changed circumstances exist so as to justify an increase in the support order. She claims that her expenses for raising three children have increased substantially and that most of the burden for support has been assumed by her retired father.

The lower court failed to consider Mrs. Dunbar’s claim of changed circumstances. Therefore, we remand the case for a consideration of this question. If the lower court determines that changed circumstances warrant an increase in the support order, in fixing an award of support, it should be guided by certain well-established principles: Because the purpose of an order of support is the welfare of the children and not the punishment of the parent, the award must be fair and not confiscatory. It is intended to provide such allowance for support as is reasonable, considering the property, income and earning capacity of the father and the condition and station in life of the family. See Dugery v. Dugery, 276 Pa.Super. 51, 419 A.2d 90 (1980); Com. ex rel. Warner v. Warner, 194 Pa.Super. 496, 168 A.2d 755 (1961).

The earning capacity of the appellee should be closely examined. Although a once successful real estate developer and a licensed real estate broker, he is employed as a maintenance man. The lower court stated that the appellee, “partially handicapped by the same physical problem that contributed to his early release from jail [diabetes] has endeavored to restore his physical, financial and emotional stability by taking the only job offered him by the family enterprise.” There is no testimony on record to the fact that appellee’s diabetes in any way hinders his ability to find other employment. Also accepting the “only job offered by the family enterprise” has no bearing on his ability or capacity to find work at a salary commensurate with his experience and the needs of his family.

This is especially true here where the appellee’s father “supports” the appellee so that he can afford to take a job earning a meager salary of $400.00 per month and thereby avoid paying support payments. Thus Mr. Dunbar, a maintenance man despite his other credentials, maintains a membership in an exclusive country club and private social club; can make trips to distant cities to attend football games; lives in an apartment rent-free with all utilities, including phone, and expenses paid. All of these are provided by his father. He has the use of two automobiles with insurance paid; free office facilities; and is able to pay thirty-nine dollars a month to store an airplane that he owns.

Mr. Dunbar’s brother, by whom Dunbar is employed, testified that he also employs real estate sales agents. The vast majority of these agents make well in excess of the appellee’s salary. The record indicates that Mr. Dunbar’s father harbors an animosity towards Mrs. Dunbar which has developed into an estrangement from the grandchildren. The grandfather has disinherited his son’s children and at one point threatened to terminate his son’s stipend of $9,000 a year if any of it went to Mrs. Dunbar for child support. Mr. Dunbar described his father’s attitude: “He is upset. Not with the grandchildren, he don’t [sic] have any compulsion that way. He just doesn’t want her to get her hands on any money.”

In its opinion the lower court makes much of the grandfather’s unwillingness to make support payments or to otherwise bail his son out of his financial woes. However, the grandfather’s lack of contribution cannot serve as an excuse for appellee’s persistent refusal to abide by court orders. It is the father’s duty to support and not the grandfather’s, which is well-nigh absolute, Com. ex rel. Mickey v. Mickey, 220 Pa.Super. 39, 280 A.2d 417 (1971); Com. ex rel. Snively v. Snively, 206 Pa.Super. 278, 212 A.2d 905 (1965).

The appellant also argues that the lower court abused its discretion by permitting the appellee to pay arrearages in monthly installments rather than in a lump sum. The payment of the $2,800.00 arrearages had been the subject of several orders prior to that of Judge Kaplan. By Judge Zeleznik’s order of September 22, 1977, arrearages in the amount of $4,100.00 had been reduced to judgment. On May 1,1977, the appellee was held in contempt for failing to pay $2,800.00 outstanding in arrearages. Appellee failed to purge himself of the contempt and was jailed. Upon his release he was again ordered to pay $2,800.00 within sixty days. The order dated August 11, 1978, stated that the funds at Mount Lebanon Savings and Loan were then available to appellee for the purpose of paying child support. That same day Mr. Dunbar withdrew eight thousand dollars from Mount Lebanon Savings and Loan and gave it to his brother for payment of expenses the brother had allegedly incurred on appellee’s behalf. Dunbar fails to state what these expenses were or to what amount he was indebted to his brother. Thus, despite these court orders, the $2,800.00 in arrears remained unpaid at the time of the hearing before Judge Kaplan. Judge Kaplan ordered the arrearages to be paid in monthly installments of forty dollars.

In its opinion the lower court holds that the appellee is entitled to this relief from the lump sum payment due to changed circumstances. However, we have found no changed circumstances warranting a reduction in the order of support. Therefore, in view of the absence of changed circumstances and the contemptuous and flagrant disobedience of prior court orders, the lower court abused its discretion in thus relieving the appellee of his accumulated arrearages by permitting him to pay the lump sum over what will amount to be a period of almost six years. While it is true that a court may in appropriate circumstances grant the parent relief in the form of a temporary order reducing the periodic sums payable, an order suspending temporarily the payment of any sums, or any order remitting arrearages, 42 Pa. C.S.A. § 6710; Com. ex rel. Caswell v. Caswell, 280 Pa.Super. 359, 367 n.3, 421 A.2d 762, 767 n.3 (1980), the instant case does not provide an appropriate circumstance. See also Com. ex rel. Caswell v. Caswell, supra (concurring opinion by Spaeth, J.) (as long as father’s earning capacity was unimpaired, he was not entitled to either a temporary reduction in the support order or relief from accumulated arrears).

Order of the lower court reversed and case remanded for proceedings consistent with this opinion.


author: BROSKY, Judge:

text:
    435 A.2d 884
    AIMCO IMPORTS, LTD., Appellant, v. INDUSTRIAL VALLEY BANK AND TRUST COMPANY v. Melvin TWERSKY and Irving Mangel.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1980.
    Filed Oct. 9, 1981.

      Michael Minkin, Philadelphia, for appellant.
    Gerald J. St. John, Philadelphia, for appellees.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   BROSKY, Judge:

Appellant commenced this action to recover damages for what it claims was the wrongful cashing of one of its checks by appellee. The check, signed by Irving Mangel, President of Aimco, was made payable to the bank and was used to reduce the size of the balance of a personal loan made by the bank to Mr. Mangel. Appellant contends that the bank knew that Mr. Mangel did not have authority to write the check and therefore breached its contractual and fiduciary duties to Aimco in cashing it. The case is before us on appeal from a grant of summary judgment to appellee. We affirm.

Aimco Imports was incorporated in April, 1971. The two shareholders of the corporation were Irving Mangel and Melvin Twersky. A checking account, opened prior to incorporation, at Industrial Valley Bank (hereinafter IVB) was modified and the signature card for the account indicated that the signatures of both Mangel and Twersky were required as authorized signatures of the account. In January, 1974, a new signature card was executed which provided that any one of four persons, including Messrs. Mangel and Twersky, was the authorized signatory for the account. The signature card made reference to new resolutions that were also filed by Aimco with the bank in January, 1974.

In May, 1974, Messrs. Mangel and Twersky took out personal loans with IVB. The total of the loans was to be $96,500, of which $50,000 was borrowed by Mr. Twersky and his wife. Mr. Mangel and his brother borrowed $71,173.13, $30,000 of which was invested in Aimco and Mr. Mangel’s parents borrowed $16,500 which was invested in Aimco. The bank was aware that $96,500 was to be invested in Aimco and apparently suggested that the loans be made to the individuals, not the corporation.

In December, 1974, Mr. Mangel deposited a check in the amount of $185,605 in the Aimco account. The check represented insurance proceeds paid to Aimco as a result of a fire loss incurred by the company. Also, on December 27, 1974, Irving Mangel presented to the bank an Aimco check, in the amount of $35,000, payable to the bank and signed only by him. He directed IVB to apply the proceeds to reduce the size of the outstanding balance of his loan. This action followed the Bank’s compliance with Mr. Mangel’s instructions.

Pa.R.C.P. 1035, provides in pertinent part:

(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits, if any.
(b) The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on. file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

In Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977), this court explained that,

The burden of demonstrating that no genuine issue of material fact exists and that one is entitled to a judgment as a matter of law, is on the moving party, and the record must be examined in the light most favorable to the non-moving party.
* * * * * *
. . . Finally, a summary judgment should be granted only when the case is clear and free from doubt, (citing cases) Id., 249 Pa.Super. at 245, 376 A.2d at 249, 250.
Subsection (d) of Pa.R.C.P. 1035 provides:
(d) Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

We explained the effect of this subsection in Amabile, supra, when we wrote:

. . . [I]f the non-moving party does not oppose a properly supported motion for summary judgment with affidavits, depositions, or the like, he may not rely upon his pleadings to controvert those facts presented by the moving parties’ depositions. Id., 249 Pa.Super. at 245, 246, 376 A.2d at 250.

In Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973), the Supreme Court explained,

The purpose of a motion for summary judgment under Rule 1035 is to expedite the trial of a matter. Controverted facts that appear in the pleadings can be verified by either side by persons who would be competent to testify at the trial of the matter. Id., 451 Pa. at 150, 303 A.2d at 826.

See also Tom Morello Construction Company, Inc. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 421 A.2d 747 (1980).

As we noted in Amabile, supra, a motion for summary judgment “was designed to remedy the situation where there is a sufficiently pleaded but factually improper claim or answer. Id., 249 Pa.Super. at 246, 376 A.2d at 250.

Appellee’s motion for summary judgment was supported by affidavits given by the persons who had been the manager and assistant manager of the IVB branch at which the transaction in question took place. Prior to the hearing on the motion, appellant submitted no affidavits or depositions in opposition to it. The affidavit attached to appellant’s Petition for Reconsideration was dated March 29, 1979, 28 days after the date of the order from which this appeal was taken. Mr. Twersky’s affidavit, then, with respect to this appeal, cannot be used by appellant to prove the existence of a genuine issue of fact. See Pa.R.C.P. 1035(b) which states that the adverse party may serve opposing affidavits prior to the day of hearing.

Because appellant submitted no affidavits or depositions, prior to the hearing, it may not rely on its pleadings to controvert the facts presented in appellee’s affidavits. See Amabile, supra, Phaff v. Gerner, supra.

Of course, mere failure to file counter affidavits does not assure that summary judgment will be granted to the moving party. The moving party’s evidence must clearly exclude any genuine issue of material fact. Marchese v. Marchese, 457 Pa. 625, 326 A.2d 321 (1974).

In Amabile we explained that to grant a motion for summary judgment made by a defendant, it must either refute a material allegation in the complaint or present a complete defense. Id., 249 Pa.Super. at 247, 376 A.2d at 250.

The complaint filed by appellant charges appellee with having breached contractual and fiduciary duties.

While appellee does not cite the source of the bank’s contractual obligation, we can only assume that it arises from the terms governing the account established by Aimco with the bank. Attached to the Answer and New Matter filed by appellee are copies of the signature cards for that account and the resolutions pertaining to it filed by Aimco with the bank.

In its Answer to New Matter, appellant said of the resolutions and signature cards, “The documents speak for themselves.” We assume that this response is an admission of the authenticity of the documents. Their contents are uncontroverted and provide the basis for our finding that there is no genuine issue of material fact to be decided in this case.

The signature card of January, 1974 indicates that Mr. Mangel had authority, acting alone, to write checks against the account. Paragraph 2 of the resolutions authorized Mr. Mangel to “issue instructions for the conduct of any account” of Aimco with the bank. Paragraph 3 of the resolutions imposed upon the bank the obligation to honor checks signed by Mr. Mangel (or the other signatories),

including any payable to said Bank or to any signer or other officer or employee of the corporation . . . and may receive the same in payment ... for the personal indebtedness of any signer or other officer . . . whether or not known to be for the personal benefit of any such person, without any obligation upon said bank to inquire whether the same be drawn or required for the corporation’s business or benefit.

This document, attached to the Answer and referred to in the signature card, provided a basis for the lower court’s finding that there is no genuine issue of material fact as to appellant’s allegation of breach of contract.

It is clear that the terms of the resolutions also belie any claim of breach of fiduciary duty or negligence by the bank. The terms themselves authorize the bank to honor a check written by Mr. Mangel even if it was to be used for his personal benefit.

The motion for summary judgment was therefore properly granted.

Order affirmed.


author: WIEAND, Judge: SPAETH, Judge

text:
    435 A.2d 888
    COMMONWEALTH of Pennsylvania v. Oscar RODRIQUEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 25, 1981.
    Filed Oct. 9, 1981.
    Petition for Allowance of Appeal Denied Jan. 28, 1982.

      Charles B. Coleman, Assistant Public Defender, Reading, for appellant.
    George C. Yatron, District Attorney, Wernersville, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and WIEAND, JJ.

      . In each case Rodriquez was found guilty of burglary and theft by unlawful taking but not guilty of theft by receiving stolen property. For sentencing purposes, the conviction for theft by unlawful taking merged in the conviction for burglary.

   WIEAND, Judge:

In separate jury trials Oscar Rodriquez was convicted of two burglaries in neighboring townships of Berks County. Appeals from the separate judgments of sentence, after post trial motions had been denied, were consolidated because of the similarity of issues raised. We will consider these issues seriatim.

The first series of issues pertain to the sufficiency and weight of the evidence. Our review of the record is persuasive, however, that in both cases the evidence was more than ample to establish appellant’s guilt. A series of burglaries had occurred in North Heidelberg and Marion Townships in Berks County. Included were burglaries committed at the home of Barry Gernert and the residence of David and Judy Shappell. As a result of police investigation, it was learned that appellant, or someone similar in appearance, had occasionally been seen at or near the scene of the burglary. In one instance he had knocked on the door of a neighbor of a victim. Consequently, the investigation began to focus more closely on appellant. Ultimately it led to a residence leased by Harry Peiffer, where appellant shared a bedroom with Peiffer’s daughter, Jeanie. There, a search of the premises conducted with the consent of Peiffer and his daughter, turned up various items taken in the Gernert and Shappell burglaries. Appellant, who was asleep in his girl friend’s bedroom, was awakened and, after being arrested and told of his rights under Miranda, showed police additional items, including guns, which had been taken in the burglaries. Jewelry and coins, later identified by the victims of the burglaries, were also found in the bedroom. Appellant made inculpatory statements and, while accompanying police, identified homes which had been burglarized. Although appellant took the stand to deny that he had made any statements to police, it was for the jury to pass on the credibility of the witnesses and to accept or reject their testimony. Commonwealth v. Weaver, 274 Pa. 593, 418 A.2d 565 (1980); Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979); Commonwealth v. Luther, 266 Pa.Super. 240, 403 A.2d 1329 (1979).

Appellant contends, however, that the physical evidence seized at the Peiffer residence was the product of an unlawful search and should have been suppressed. He argues that the pre-trial hearing judge erred in finding that the search had been conducted with the voluntary consent of the lessee, Peiffer, and his daughter, Jeanie.

After commission of a burglary subsequent in time to the Gernert and Shappell burglaries, police had found some of the stolen items in a wooded area near the burglarized home. Because appellant was already a suspect, the home where he was living with the Peiffers was placed under surveillance. When police observed a Puerto Rican male leave with a white male in a black and white Chrysler, Trooper Seese followed. The car led him to the wooded area where the stolen goods had previously been found. The Chrysler then sped away, and Seese lost it in traffic. Later, the vehicle was again observed, and this time it was stopped. The vehicle was found to be occupied by Peiffer and his daughter. Upon inquiry, Jeanie told police that appellant was sharing a room with her in her father’s home and that she had reason to believe that stolen items were to be found in the bedroom. She and her father consented to a search of the residence by police. The hearing court found that their consent was voluntary, and the evidence supports that finding. The search, therefore, was proper. It was conducted by and with the voluntary consent of persons who were authorized to give such consent. See generally: Commonwealth v. Merbah, 270 Pa.Super. 190, 411 A.2d 244 (1979); Commonwealth v. Reiland, 241 Pa.Super. 109, 359 A.2d 811 (1976).

The argument which appellant advanced most strenuously is that his trials in the cases on appeal did not take place within 180 days as required by Pa.R.Crim.P. 1100. The complaints were filed against appellant on June 16, 1978. The run date, therefore, was December 13, 1978. However, on July 7, 1978, appellant escaped from the Berks County Prison; and he was not again available in Berks County until January 29, 1979. This period must be excluded from the time within which appellant was to be tried, for he was not then available for trial. Pa.R.Crim.P. 1100(d)(1). See also: Commonwealth v. Goodman, 260 Pa,Super. 266, 393 A.2d 1256 (1978). The new run date, therefore, was July 2, 1979.

Because the numerous charges against appellant entailed a possibility of nine separate trials, the Commonwealth, on March 2, 1979, filed a petition for extension of time. After hearing trial dates were set in all cases. In the two cases now on appeal, trials were to commence on June 15, 1979, and July 13, 1979. However, on May 16, 1979, appellant appeared in open court, expressed dissatisfaction with his attorney, and requested the appointment of new counsel. In order to obtain the delay needed for new counsel to be appointed and to prepare for trial, appellant, expressly and in writing, waived his right to a speedy trial under Rule 1100. The waiver was as follows:

“AND NOW THIS 16 day of May, 1979, I, Oscar C. Rodriquez, defendant in the above named cases, hereby request a continuance of trial on the above named cases waiving or giving up the right to be tried within 180 days after filing of complaint as provided by Rule 1100, the right to be released without bail if in prison and not tried within two terms of criminal court, and the right to a speedy trial. It is also understood that I, Oscar C. Rodriquez, will be given no continuance due to omnibus pre-trial motions or the like. This is a full and complete waiver of time on all the cases above named. I, Oscar C. Rodriquez, defendant in the above named cases also understand there will be no remand or further ‘foot-dragging’,
(signed) OSCAR C. RODRIQUEZ,
Defendant
“I certify that I have read this verbatim to the defendant and he has indicated to me that he understands the within waiver and conditions, therein, and that he wishes to knowingly, willingly and voluntarily give up the aforementioned rights.
BERTRICE LANGDON”

On July 27, 1979, appellant filed an application under Rule 1100(f) for dismissal of the charges against him. That request was denied, and appellant was tried in the cases now being reviewed on August 18 and September 19, 1979.

The waiver, executed by appellant for his own benefit, i. e. to obtain a delay within which to procure new counsel, was a knowingly and intelligent waiver of his right to be tried within the time constraints of Rule 1100. In Commonwealth v. Myrick, 468 Pa. 155, 161, 360 A.2d 598, 601 (1976), the Supreme Court, in a unanimous opinion authored by Justice Roberts, considered the requirements of a waiver of Rule 1100 and said:

“Rule 1100 is a rule of criminal procedure designed to implement and protect a defendant’s constitutional right to a speedy trial. Its particular terms, however, are neither directly granted by nor required by the Constitution. Nevertheless, the basic requirements for making a valid waiver of constitutional rights, as outlined above, are instructive in our consideration of the validity of a claimed waiver of the protections of rule 1100. Thus a waiver which would be formally adequate to waive a constitutional right would, a fortiori, be sufficient under the Federal Constitution to waive the protection of rule 1100. In this case the record contains not only an on-record colloquy but also a statement signed by the defendant and endorsed upon the indictment indicating the defendant’s willingness that trial time be extended. Thus the Commonwealth’s claim that appellant waived the protection of rule 1100 is formally valid, for either the colloquy or the signed statement would by themselves be sufficient record indication that the waiver was, prima facie, informed and voluntary.” (Emphasis added.)

See also: Commonwealth v. Thompson, 262 Pa.Super. 211, 396 A.2d 720 (1978).

The written waiver in the instant case was not a form waiver. Compare: Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980); Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978). It explained the right which appellant was surrendering, and appellant acknowledged that he understood the nature of the express waiver which he had signed. See: Commonwealth v. Scott, 272 Pa.Super. 236, 414 A.2d 1095 (1979). Appellant voluntarily surrendered his right to a speedy trial under Rule 1100 in order that a continuance would be granted to permit new counsel to be appointed and prepare for trial. He will not now be heard to say that he did not understand the waiver of his right to a speedy trial and then take advantage of the very delay which he caused in order to obtain a dismissal of the charges.

We are also of the opinion that it is unnecessary to require, at least under the circumstances of this case, that appellant’s waiver be consented to in writing by his counsel. The waiver was executed when appellant, approximately a month before trial, requested a continuance and the appointment of new counsel. The waiver and its effect were explained to appellant, and he acknowledged an understanding thereof. To require consent by counsel with whom appellant had already expressed dissatisfaction would have contributed little or nothing to the intelligent nature of the waiver. Moreover, this Court has invariably approved written waivers signed alone by criminal defendants who have requested continuances in order to procedure the services of counsel. See: Commonwealth v. Scott, supra; Commonwealth v. Dalahan, 262 Pa.Super. 615, 396 A.2d 1340 (1979).

We conclude, therefore, that appellant knowingly, voluntarily, and intelligently waived his right to a speedy trial under Rule 1100.

During the trial in which appellant was charged with burglarizing the Shappell residence, (No. 1537 Philadelphia 1980), the District Attorney twice asked defense counsel if he wanted to have a police witness’s handwritten notes read into the record. Appellant contends that these statements implied appellant’s involvement in other offenses and that the trial court was in error in denying motions for mistrial. The grant of a mistrial lies within the sound discretion of the trial judge. Commonwealth v. Krasner, 285 Pa.Super. 389, 427 A.2d 1169 (1981); Commonwealth v. Stokes, 279 Pa.Super. 361, 421 A.2d 240 (1980); Commonwealth v. Seigrist, 253 Pa.Super. 411, 385 A.2d 405 (1978). In the instant case, the trial judge did not abuse his discretion. Appellant’s averment that the brief comments of the prosecuting attorney implied that appellant had been involved in other crimes is not warranted. We also find unsupported and without merit the argument that the prosecuting attorney was unauthorized to represent the Commonwealth in the trial for burglarizing the Shappell home.

Finally, appellant urges us to remand for resentencing because the judge failed to state adequate reasons in support of the sentence. This argument is frivolous. The record clearly shows that the judge complied with the standards set forth in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).

The judgments of sentence are affirmed.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge

Dissenting:

The majority concludes that appellant executed a voluntary and intelligent waiver of his Rule 1100 rights because the written statement he signed “explained the right which [he] was surrendering, and [he] acknowledged that he understood the nature of the express waiver which he signed.” At 892. Since I can find no basis for this conclusion, I dissent.

The waiver form that appellant signed read:

AND NOW THIS 16 day of May, 1979, I, Oscar C. Rodriquez, defendant in the above named cases, hereby request a continuance of trial on the above named cases waiving or giving up the right to be tried within 180 days after filing of complaint as provided by Rule 1100, the right to be released without bail if in prison and not tried within two terms of criminal court, and the right to a speedy trial. It is also understood that I, Oscar C. Rodriquez, will be given no continuance due to omnibus pre-trial motions or the like. This is a full and complete waiver of time on all the cases above named. I, Oscar C. Rodriquez, defendant in the above named cases also understand there will be no remand or further “foot-dragging”.
(signed) OSCAR C. RODRIQUEZ
Defendant
I certify that I have read this verbatim to the defendant and he has indicated to me that he understands the within waiver and conditions, therein, and that he wishes to knowingly, willingly and voluntarily give up the aforementioned rights.
BEATRICE LANGDON

In Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978), the Supreme Court concluded that the defendant had not validly waived his Rule 1100 rights when he signed the following:

I am aware and have been advised of the implications and consequences of the above application and (have/do not have) objection to the continuance. I am further aware of my right to a speedy trial and that a continuance shall cause a delay in having said criminal charges disposed of by the Court.

Id., 477 Pa. at 406, 383 A.2d at 1271.

The Court “refuse[d] to find waiver” because this statement “offer[ed] no explanation of what the right to speedy trial involves . . . . ” Id., 477 Pa. at 407, 383 A.2d at 1271 (footnote omitted). In Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980), the Supreme Court concluded that the defendant “did not intend a blanket waiver of his Rule 1100 Rights” when he signed a statement that

I hereby certify that on [December 9, 1974], Hon[orable] Alex Bonavitacola orders case continued] to January 27, 1975 [in] Room 625. Defendant's] attorney] on trial in Fed[eral] Court ... I, the defendant, waive the 270 day rule and as to speedy trial.

Id., 491 Pa. at 468, 421 A.2d at 640 (footnote omitted). The Court said:

On this record, we cannot conclude that the December 9 waiver evidences an intelligent decision by appellant to waive his Rule 1100 rights in toto. As in Commonwealth v. Coleman, supra, the statement signed by appellant contains no indication that he understood the nature and scope of the right which he was waiving. Although an on-the-record colloquy is not necessary, we do require proof that the defendant understood the consequences of his act.

Id., 491 Pa. at 469-69, 421 A.2d at 640 (footnote omitted).

I do not find, and the majority does not identify, any information that was provided appellant with regard to his Rule 1100 rights that was not included in the waiver statements in Commonwealth v. Manley, supra, and Commonwealth v. Coleman, supra. Appellant was not, for instance, informed that if the Commonwealth failed to prosecute him within the period required by the rule, he would be entitled to a discharge; nor, in language that he—or anyone else— could understand, how long it would be until he was brought to trial. Moreover, the form was inaccurate; appellant, “as provided by Rule 1100,” was not entitled to be tried within 180 days from the filing of the complaint against him. His trial could commence much later than 180 days from the date the complaint was issued. A continuance had been granted to the Commonwealth, and appellant had escaped. The Rule 1100 clock was stopped by both of these events.

Contrary to the majority’s statement, the form signed by appellant “explained” nothing. It merely recited, in vague, inconsistent, and inaccurate language, rights that appellant was purportedly waiving.

I have one other comment. Not only did the form signed by appellant fail to explain the rights being waived by appellant, but it needlessly included language that was demeaning and inappropriate to so important a document as a statement of waiver, and that could only have served to cloud appellant’s understanding. There was no reason, let alone basis in authority, to include the statements: “I [ ] will be given no continuance due to omnibus pre-trial motions or the like,” or, “I ... understand there will be no remand or further ‘foot-dragging.’ ”

The judgment of sentence should be reversed and appellant ordered discharged.

      . In determining the sufficiency of the evidence we are required to view the evidence and the permissible inferences therefrom in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979); Commonwealth v. Alston, 269 Pa.Super. 573, 410 A.2d 849 (1979). The test is whether, accepting as true the evidence most favorable to the Commonwealth together with all reasonable inferences therefrom, the evidence is sufficient to prove appellant’s guilt beyond a reasonable doubt. Commonwealth v. Santiago, 476 Pa. 340, 382 A.2d 1200 (1978); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Kline, 277 Pa.Super. 486, 419 A.2d 1252 (1980).

      . Whether the verdict was contrary to the weight of the evidence so as to require a new trial is ordinarily a question committed to the sound discretion of the trial court. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972); Commonwealth v. Larew, 289 Pa.Super. 34, 432 A.2d 1037 (1981). A new trial will not be granted unless the verdict is so contrary to the weight of the evidence that the denial of a new trial is an abuse of discretion. Commonwealth v. Yohn, 271 Pa.Super. 537, 414 A.2d 383 (1979); Commonwealth v. Reidenbaugh, 266 Pa.Super. 315, 404 A.2d 697 (1978).

      . The Commonwealth’s brief suggests that there was also a colloquy conducted by the court which explained to appellant the rights which he was waiving. If this be correct, the colloquy was either not transcribed, or, having been transcribed, was filed in one of the other actions in which appellant was a defendant. It does not appear among the record documents sent to this Court in the matters now being reviewed.

      . Although the identity of Beatrice Langdon is not clear from the record, the briefs of counsel refer to her an an interpreter.


text:
    435 A.2d 894
    COMMONWEALTH of Pennsylvania, v. Raymond ZIOMEK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Oct. 9, 1981.

      Lewis J. Bott, Assistant Public Defender, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CAVANAUGH, DiSALLE and MONTEMURO, JJ.
   PER CURIAM:

Appellant, Raymond Ziomek, had pled guilty to various criminal charges and on May 12, 1980 was sentenced as follows:

No. 3112-A of 1979, first count, Kidnapping—sentenced to a minimum of four (4) years and a maximum of eight (8) years;
No. 3112-A of 1979, second count, Kidnapping—sentenced to a minimum of four (4) years and a maximum of eight (8) years to run concurrently with sentence imposed on first count of No. 3112-A of 1979;
No. 3112-C of 1979, first count, Robbery—sentenced to a minimum of four (4) years and a maximum of eight (8) years to run consecutively to sentence imposed on No. 3112-A of 1979;
No. 3112-C of 1979, second count, Robbery—sentenced to a minimum of three (3) years and a maximum of six (6) years to run concurrently with sentence imposed on first count of No. 3112-C of 1979;
No. 3219 of 1979, second count, Robbery—sentenced to a minimum of two (2) years and a maximum of eight (8) years to run consecutively to sentence imposed on No. 3112-C of 1979;
No. 3033 of 1979, second count, Robbery—sentenced to a minimum of four (4) years and a maximum of eight (8) years to run consecutively to sentence imposed on No. 3219 of 1979;
No. 3033 of 1979, first count, Criminal Conspiracy—sentenced to a minimum of two (2) years and a maximum of four (4) years to run concurrently with sentence imposed on the first count of No. 3033 of 1979.

In addition, he was ordered to pay restitution and the costs of prosecution. Appellant’s Petition to Modify Sentence, Pa.R.Crim.P. 1410, was denied by the sentencing court without a hearing. This direct appeal followed.

Appellant’s first contention is that under the totality of the circumstances, his cumulative sentences are too severe. We disagree. His argument that the sentencing court did not give proper consideration to the circumstances of his involvement in the crimes or to his drug problem is refuted by the record.

In Commonwealth v. Straw, 238 Pa.Super. 535, 537, 361 A.2d 427, 428 (1976), allocatur refused, our court noted that:

It has long been established that the sentence imposed upon a convicted defendant is within the sole discretion of the sentencing judge, . . . and that the lower court’s discretion is very broad in the matter of sentencing, .... It is equally well-settled that an appellate court will not find an abuse of that broad discretion, providing that the sentence is within statutory limits, unless the sentence imposed is so manifestly excessive as to inflict too severe a punishment.

(Citations omitted).

In the instant case, the sentences were within statutory limits. The record shows that the sentencing court considered appellant’s personal circumstances, including his drug problem; the circumstances of the crimes he committed, especially their violent and life-threatening nature; and the pre-sentence report. The court also stated, on the record, its reasons for believing that total confinement was necessary. We find that the sentencing court complied with all sentencing procedures and safeguards required by law. See Commonwealth v. Wareham, 259 Pa.Super. 527, 393 A.2d 951 (1978).

Appellant’s second contention, that we should vacate his judgment of sentence because the sentencing court denied his Petition, for Modification of Sentence without a hearing and without stating its reasons for the denial, must also fail. A trial court may deny a defendant’s petition for modification of sentence without a hearing. Pa.R.A.P. 1701; Pa.R.Crim.P. 1410 (Comment). The result is the same as if the trial court had not acted upon the petition within thirty days of its judgment of sentence, i. e., denial without a hearing. See Commonwealth v. Pinkney, 267 Pa.Super. 288, 406 A.2d 1045 (1979).

A petition for modification of sentence is designed to give the sentencing court an opportunity, before appellate review is undertaken, to correct any errors it may have committed at sentencing. See Pa.R.Crim.P. 1410 (Comment); Cf. Commonwealth v. Riggins, 474 Pa. 115, 130-31, 377 A.2d 140, 148 (1977) (the trial court must state on the record its reasons for the sentence it imposed on defendant to, inter alia, aid appellate courts in ascertaining whether “the sentence imposed was based upon accurate, sufficient and proper information.”). A modification of sentence hearing, therefore, is only necessary if the sentencing record discloses errors by the trial court. Should the modification petition fail to raise such errors, then the trial court is under no obligation to hold an obviously frivolous hearing or write an unnecessary opinion supporting its denial of the modification petition. It is within the trial court’s discretion to rely upon the sentencing record.

Judgment of sentence affirmed.

      . Appellant has incorrectly cited our authority to hear this appeal. The correct citation is 42 Pa.C.S.A. § 742.

      . The sentencing court, in accordance with Pa.R.A.P. 1925(a), stated that the “reasons for the Order appealed from [the denial of appellant’s Petition for Modification of Sentence], . . . are contained in the stenographic record of the sentencing.”