author: PRICE, Judge:

text:
    460 A.2d 295
    Robert DeMARTINO, Appellant, v. ALBERT EINSTEIN MEDICAL CENTER, NORTHERN DIVISION and Stephen Sobel, D.D.S.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1981.
    Filed April 29, 1983.

      Charles P. Menszak, Jr., Philadelphia, for appellant.
    Kevin H. Wright, Philadelphia, for appellees.
    Before PRICE, MONTEMURO and VAN der VOORT, JJ.

      This decision was reached prior to the death of Price, J.

   PRICE, Judge:

The present appeal presents the issue of whether a prospective medical malpractice plaintiff need have knowledge, or should, through the exercise of reasonable diligence, have knowledge that a personal injury which he has suffered was the result of professional negligence, before the two-year statute of limitations commences against his cause of action.

Appellant herein contends that the lower court erred in granting appellee Albert Einstein Medical Center (“AEMC”) summary judgment on the grounds that the statute of limitations barred his complaint in trespass. We disagree and affirm the order of the lower court.

Summary judgment may be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035. The evidence must be viewed in the light most favorable to the non-moving party and all doubts must be resolved against the moving party. Wallace v. Horvath, 283 Pa. Superior Ct. 179, 180-181, 423 A.2d 1047, 1048 (1980), Acker v. Patena, 260 Pa. Superior Ct. 214, 393 A.2d 1230 (1978). We shall, therefore, recite the undisputed facts of record as contained in the pleadings, interrogatories and admissions in compliance with this standard.

In October 1973, appellant Robert DeMartino engaged the services of Albert Einstein Medical Center on an outpatient basis for treatment of decayed teeth. At that time he was informed that his prospective endodonic treatment would extend over one and one half years. From this time until August 1977 when appellant discontinued his relationship with AEMC, he had several crowns fitted and placed. The endodonic treatment appellant underwent for a little more than three years was more prolonged and extensive than had at first been indicated to appellant by AEMC’s physicians. Appellant alleges that throughout the course of the dental procedures he was repeatedly told by his attending dentists that his case was quite complex.

In May 1977, three and one half years after he originally began his treatment at AEMC his attending dentist referred him to Dr. Brothman, an endodonic specialist also employed at AEMC, in order to treat two of appellant’s molars which were causing considerable pain and discomfort. In his answer to appellee’s interrogatory # 44 appellant describes what transpired at the May 1977 appointment he had with Dr. Brothman:

Dr. Brothman told me one [molar] had gone too far to save and that the other tooth had received a ‘severe gross perforation’ thereby causing infection and bone erosion. When I asked Dr. Brothman how this could have happened, he told me that whoever had done the root canal ‘could not have been watching what he was doing.’ When I informed Dr. Brothman that the work was that of his colleague, Dr. Houseman, he refused to discuss the matter any further.

This same conversation with Dr. Brothman was described verbatim by appellant in a March 18, 1979 letter addressed to the Patient Relations Committee of the Philadelphia County Dental Society informing said committee of his intention to file a grievance. (R. 31a). Appellant also wrote in this letter: “The above incidents made it clear to me that remaining a patient at Albert Einstein was bringing no progress to my case and as the above example shows, conditions were in some cases worse than when I began as a patient.” (R. 31a).

Appellant alleges that it was not until a 1979 visit to another dentist not associated with AEMC that he was advised that “his condition was not the natural progression of a disease but the result of improper treatment on the part of AEMC.” Appellant’s Br. at 9.

On September 10, 1979, twenty-eight months after appellant’s conversation with Dr. Brothman, he commenced this suit by filing a Writ of Summons in Trespass. In his complaint, filed February 7, 1980, DeMartino alleged two separate causes of action. The first alleged that he suffered personal injuries caused by improper treatment administered by the agents and employees of appellee AEMC. The second count alleged a cause of action against Dr. Stephen Sobel individually for alleged improper treatment beginning August 1977. On March 4, 1980 appellee AEMC filed an answer properly raising in new matter the allegation that DeMartino was put on notice of the alleged mistreatment in May 1977 and that the action was, therefore, barred by the statute of limitations.

Following a period of discovery during which were filed into the record the above described letter and interrogatory, appellee AEMC filed a motion for summary judgment alleging the bar of the statute of limitations. Oral argument followed in the Court of Common Pleas of Philadelphia County (the Honorable Stanley Greenberg, presiding) and appellee’s motion for summary judgment was granted; final judgment was entered in AEMC’s favor on September 29, 1980. Appellant thereafter undertook this appeal.

Appellant’s primary contention before us is that the statute of limitations in a medical malpractice action should not begin to run until a plaintiff has reason at least to suspect that a legal duty owing him has been breached. The particular choice of semantics and implications contained in appellant’s framing of the issue is not an accurate reflection of the discovery rule as formulated in our courts’ case law. We, therefore, reject appellant’s theory.

The Pennsylvania statute of limitations provides that personal injury actions must be brought within two years of the accrual of the cause of action, i.e., from the date the injury is sustained. An exception to this limitation has been articulated by our courts in medical malpractice cases where very often the patient (and prospective plaintiff) has no reason to believe that he has suffered an injury caused by the administration of a physician’s treatment. This exception, coined the “discovery rule,” has been most recently explained in Petri v. Smith, 307 Pa. Superior Ct. 261, 453 A.2d 342 (1982):

The ‘discovery rule’ exception is premised on the concept that where the existence of an injury cannot be reasonably ascertained, the statute of limitations does not begin to run until such time as the injury’s existence is known or discovered, or becomes knowable or discoverable by the exercise of reasonable diligence.

Id., 307 Pa.Superior at 263, 453 A.2d 342.

This rule developed as a judicial interpretation of the term “injury” as used in the limitations statute. Anthony v. Koppers Co., Inc., 496 Pa. 119, 436 A.2d 181 (1981). The initial case applying this rule to the medical malpractice area was Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), wherein the court held that the “injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Id., 397 Pa. at 290, 154 A.2d at 792. (Emphasis added). Inherent in such a rule is that plaintiff must have, or should have through the exercise of reasonable diligence, a certain level of knowledge with regard to his injury and the circumstances surrounding its occurrence before the statute against his cause of action begins to run.

According to appellant, before the statute is held to have begun as of a particular date there must be a showing that the plaintiff discovered or should have reasonably discovered “(a) the injury; (b) knowledge of the operative cause of the injury and (c) the negligent conduct causing the injury.” Appellant’s Br. at 8. By describing the requisite knowledge in this way appellant urges us to accept a rule which would toll the limitations statute until such time as the putative malpractice plaintiff has knowledge that malpractice has been committed and as a result, legal rights have vested.

This is not an accurate statement of the Pennsylvania discovery rule. In Anthony v. Koppers Co. Inc., 284 Pa. Superior Ct. 81, 425 A.2d 428 (1980), rev’d. on other grounds, 496 Pa. 119, 436 A.2d 181 (1981), this court adopted a formulation articulated by the Court of Common Pleas of Philadelphia County in Volpe v. Johns-Manville Corp., 4 P.C.R. 290 (Phil.C.P.1980). In essence, this standard compels the factfinder to determine that the statute commences when the medical malpractice plaintiff has knowledge or (and this is crucial to the determination) through the exercise of reasonable diligence should have had knowledge of: (1) his injury; (2) the operative cause of his injury; and, (3) the causative relationship between his injury and the operative conduct. Since the decision in Anthony, the Volpe formula has been uniformly used by our courts in discovery rule cases. See e.g., Petri v. Smith, 307 Pa. Superior Ct. 261, 453 A.2d 342 (1982); Coyne v. Porter-Hayden Co., 286 Pa. Superior Ct. 1, 428 A.2d 208 (1981). See also, O’Brien v. Eli Lilly & Co., 668 F.2d 704 (3d Cir.1981).

The difference in appellant’s phrasing of the third element of knowledge, i.e., knowledge of the negligent conduct causing the injury, and Volpe’s phrasing, i.e., knowledge of the causative relationship between the injury and the operative conduct, is not a mere linguistical variance without substantive meaning. For this reason we must reject appellant’s assertion.

Volpe directly addressed the issue of whether knowledge of negligence is included in the discovery rule and unequivocally held that it is not. Judge Takiff, in Volpe, wrote: “Postponing the commencement of the limitations period until he has actually done so [acquired knowledge of the negligence] would nullify the justifiable rationale of the statute of limitations and permit the prosecution of stale claims.” With this statement we wholeheartedly agree as our adoption of the Volpe formula has previously indicated.

The statute of limitations has as its policies and purposes the stimulation of the prompt pursuit of legal rights and the avoidance of the inconvenience and prejudice resulting from deciding stale cases on stale evidence. Our supreme court stated in Ulakovic v. Metropolitan Life Insurance Co., 339 Pa. 571, 16 A.2d 41 (1940):

It has always been the policy of the law to expedite litigation and not to encourage long delays. From this fact arose the various statutes of limitations, and the reasons why the law is unfavorable to delayed litigation are self-evident. If any person has a right which he wishes enforced, he should enforce it promptly. The person against whom the right is to be enforced might be greatly prejudiced by plaintiffs delay. Witnesses disappear or remove to distant parts and the entire aspect of the parties on both sides may change with the lapse of time.

Id., 339 Pa. at 575, 16 A.2d at 42. See also, Anthony v. Koppers Co., Inc., 284 Pa.Superior Ct. 81, 106, 425 A.2d 428, 441 (1980), reversed on other grounds, 496 Pa. 119, 436 A.2d 181 (1981).

It was with these principles in mind that our discovery rule has been fashioned. While undergoing medical treatment and while acting in accordance with the confidence and trust inherent in a doctor-patient relationship it is difficult if not impossible to ascertain that the treatment has caused or may be causing an injury. Therefore, our courts find that it would be unfair and unjust to begin the statutory period before the injury is ascertainable. However, in order to promote the policy of avoiding stale claims, the discovery rule must not be read too liberally thereby giving the plaintiff unlimited time in which to act.

Thus, once the patient is aware or should reasonably have become aware that medical treatment is causing him personal injury the statute begins and the prospective plaintiff is required to begin doing those things for which the statute of limitations specifically provides time: “an opportunity to select and consult with a lawyer, investigation, initiation of suit, discovery, joinder of additional parties, etc.” Keating v. Zemel, 281 Pa.Superior Ct. 129, 134 n. 4, 421 A.2d 1181, 1184 n. 4 (1980). It is during this two year period that the medical malpractice plaintiff, like any other plaintiff pursuing any other legal claim, makes the decision whether or not to pursue any legal rights he may possess.

In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the United States Supreme Court confronted this issue and reached the same conclusion as we do today:

We thus cannot hold that Congress intended that ‘accrual’ of a claim must await awareness by the plaintiff that his injury was negligently inflicted. A plaintiff such as Kubrick, armed with the facts about the harm done to him can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute____

Id., at 123, 100 S.Ct. at 360.

Based on the foregoing, therefore, we reject appellant’s theory. “[A] potential plaintiff need not have knowledge that he has a cause of action in order for the statute to run---- In the absence of fraud or concealment the statute begins to run when a tort is ascertainable.” Wallace v. Horvath, 283 Pa.Superior Ct. 179, 423 A.2d 1047, 1050 (1980) (Brosky, J. concurring).

Before we apply the Volpe three-tiered test to the facts sub judice, we will address appellant’s second contention. DeMartino submits that even if this court should find that Dr. Brothman’s statement, “whoever did the root-canal wasn’t watching what he was doing,” was sufficient to alert him as to his injuries, Dr. Brothman’s subsequent denial that Dr. Houseman had improperly treated him constitutes fraud or concealment on the part of AEMC and stops AEMC from invoking the bar of the statute of limitations.

In Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963), our supreme court stated the principle to which appellant is referring:

Under the law of Pennsylvania, it is the duty of one asserting a cause of action against another to use all reasonable diligence to properly inform himself of the facts ... and to institute the suit within the prescribed statutory period: Patton v. Commonwealth Trust Co., Executor, 276 Pa. 95, 119 A. 834 (1923); Turtzo v. Boyer, 370 Pa. 526, 88 A.2d 884 (1952). Mere mistake, misunderstanding or lack of knowledge is not sufficient to toll the running of the statute: Ridgway’s Account, 206 Pa. 587, 56 A. 25 (1903); McEnery v. Metropolitan Life Ins. Co., 50 Pa.Dist. & Co. 395 (1944). If, however, through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry, the defendant is estopped from invoking the bar of the limitation of the action: Plazak v. Allegheny Steel Company, 324 Pa. 422, 188 A. 130 (1936) and Deemer v. Weaver, 324 Pa. 85, 187 A. 215 (1936).

Schaffer, supra, 410 Pa. at 405, 189 A.2d at 269. Assurances given by a physician which lull a patient into a false sense of security act as “concealment” and toll the statute. Stein v. Richardson, 302 Pa.Superior Ct. 124, 448 A.2d 558 (1982), Barshady v. Schlosser, 226 Pa.Superior Ct. 260, 264, 313 A.2d 296, 298 (1973) (Hoffman, J., in support of reversal). “The burden of proving the existence of such fraud or concealment is upon the asserting party by evidence that is clear, precise and convincing.” Nesbitt v. Erie Coach Co., 416 Pa. 89, 93, 204 A.2d 473, 475 (1964).

Appellant asserts that when Dr. Brothman refused to continue discussing the apparent problem with the root canal of which he made mention he thereby lulled appellant into a state of acquiescence. By his silence, according to appellant, Dr. Brothman concealed information necessary to give appellant sufficient knowledge to start the running of the statute.

The lower court, in reply to this argument, found that given Dr. Brothman’s professional relationship with Dr. Houseman, it would be logical and reasonable for appellant to infer that Brothman was making a hasty attempt to protect a possibly negligent colleague (referring in a footnote to the medical “community of silence”). Slip op. at 10. We agree with the lower court that such was a reasonable inference and that Brothman’s actions did not amount to concealment.

In Barshady v. Schlosser, 226 Pa.Superior Ct. 260, 313 A.2d 296 (1973), appellant suffered severe pain and numbness immediately following ear surgery in April 1961. Her physician assured her that the condition was temporary. She continued her treatment with the same surgeon for two years but when the symptoms did not subside by that time she consulted another physician who discovered her injuries. An equally divided court affirmed a compulsory non-suit against plaintiff-appellant. Judge Hoffman, in an opinion in support of reversal, stated that the allegations of the original surgeon’s assurances amounted to concealment. Considering the circumstances of the case Judge Hoffman found that the appellant’s reliance on her physician was justified:

The appellant confronted her surgeon with her symptoms and ailments immediately after the operation. Having absolute confidence in the judgment of her physician, as is the case in many physician-patient relationships, she believed the appellee’s statement that the pain was an emotional reaction to surgery and the numbness would be temporary____ We believe that appellant’s delay in seeking other medical advice was a reasonable one, prompted by her faith in her physician.

Id., 226 Pa.Superior at 264, 313 A.2d at 298-299.

This reasoning, however, would not lead to a finding of fraudulent concealment under the present circumstances. We can not find that appellant’s reliance on Dr. Brothman’s refusal to expand on his comment was reasonable or justified. Appellant was not in a situation that was devoid of suspicion. Along with several more months of treatment than he had anticipated, pain, numerous changes in his attending dentist, he had just been told that a serious condition was caused by someone not watching their work. It is not reasonable, nor are we able to believe that a jury would find it reasonable, to believe that a patient could be lulled into a state of acquiescence after hearing such a comment.

Heretofore, we have found that reliance upon the word of one physician when the patient’s own common sense should lead one to a different conclusion is unreasonable. In Armacost v. Winters, 258 Pa.Superior Ct. 424, 392 A.2d 866 (1978), a minor passenger suffered severe and chronic headaches immediately after a car accident. Her family physician never advised her or her parents of the causal connection between the accident and the headaches. Suit for the injuries was brought more than two years after the accident and the plaintiff pleaded the discovery rule. We held that the physician’s failure to advise the minor of the cause of her headaches did not justify a delay in the running of the statute:

It is not unreasonable to expect plaintiffs to appreciate the possibility of the accident as the triggering factor. The injury was fully known at the time of the accident, and its cause should.have been known by a reasonable mind. It is inadequate in this case solely to rely upon one physician’s examination and, in essence, failure to pinpoint a certain alleged cause.

Id., 258 Pa.Superior Ct. at 428, 392 A.2d at 868.

Similarly, we must now also hold that it was inadequate to rely solely on Dr. Brothman’s subsequent refusal to explain his comment. We find, as a matter of law, that there was no fraud or concealment so as to toll the statute of limitations against this cause of action.

All that remains, therefore, for our decision is to apply to the present set of facts the Volpe three-step analysis. Initially, we should make clear that the applicability of the discovery rule is not contested by the parties. It is appellee’s assertion that the statute began to run on the day of appellant’s visit to Dr. Brothman. Appellant, on the other hand, contends that it was not until a 1979 visit to a previously unconsulted dentist that the statute began to run.

Appellant’s analysis of the facts is as follows. He contends that while he was a patient at AEMC he was never given any reason to believe that he was suffering from an injury, but instead believed that the bone erosion and gum perforation diagnosed by Dr. Brothman was simply the natural progression of his disease. He states that as a layman, uneducated in dentistry, he had no reason to believe anything else.

In support of the reasonableness of his belief, appellant cites Tyminski v. United States, 481 F.2d 257 (3d Cir.1973):

Reasonable diligence does not require that a person who does not know of the acts constituting malpractice and who has little reason to doubt that his injury remitted from disorder interrupt the care he is receiving to cure his injuries in order to ascertain whether the person providing the care negligently caused his injuries.

Id., at 264.

He then continues to argue that he had no knowledge of the operative cause of his injury. According to appellant, Brothman’s apparent nonchalance negated any notice his comments may otherwise have provided. Subsequent to that appointment, no other dentist told him of the possibility of negligent treatment until 1979. Therefore, under appellant’s analysis, the statute of limitations, as per the discovery rule, began in 1979.

Before we embark on our own analysis and explain the faults inherent in appellant’s treatment of the facts, we feel compelled to make it clear at the outset that the standard against which the discovery rule is applied is one of reasonable conduct. We evaluate the malpractice plaintiff’s conduct in terms of what he should have known at a particular time by following a course of reasonable diligence. It is a general principle in our law that if a party has the means of discovery within his power but neglects to use them, his claim will still be barred. Irrera v. Southeastern Pennsylvania Transportation Authority, 231 Pa. Superior Ct. 508, 520, 331 A.2d 705, 710-711 (1974). Our court has a duty to apply this principle in a judicious and fair manner to both parties for the statute of limitations protects not only the person who has been wronged but also the wrongdoer. After a certain period of time a wrongdoer should have repose and be spared the inconvenience and prejudice that may result from attempting to defend himself against a stale claim. Anthony v. Koppers Co., Inc., 284 Pa.Superior Ct. 81, 105-107, 425 A.2d 428, 441 (1980), rev’d. on other grounds, 496 Pa. 119, 436 A.2d 181 (1981).

Thus, with these precepts in mind we turn to the present factual predicament.

The manner in which appellant applies the Volpe elements to the facts is incorrect. When Dr. Brothman told him of the gum perforation and the bone erosion, he then had knowledge of his injury, though at that particular moment the knowledge of the cause of the injury still eluded him. However, when Dr. Brothman responded to appellant’s direct query as to the cause, saying someone must not have been watching what he was doing, the appellant was then cognitive of the operative cause and the relationship between the cause and the injury. While it may be true that, due to Dr. Brothman’s later reluctance to discuss the matter appellant could not be positive of what had occurred, he was no longer oblivious to the possibility that there may be more to his persistent problems than a natural progression of his disease. He had sufficient empirical information at his disposal to begin an investigation into suspicions which should reasonably have arisen out of Dr. Brothman’s observations. We, therefore, find that the conversation of May 1977 with Dr. Brothman produced sufficient information to satisfy the Volpe test and trigger the statute of limitations against appellant’s medical malpractice claim.

In order to affirm the order of summary judgment, however, we must be able to find that there are no genuine issues of material fact over which reasonable minds may differ. The question of whether a plaintiff has exercised due diligence in discovering the incidence of his injury is usually a jury question. Taylor v. Tukanowicz, 290 Pa.Superior Ct. 581, 586, 435 A.2d 181, 183 (1981). However, as we stated in Anthony v. Koppers Co., Inc., supra, there are cases where this issue may be determined as a matter of law:

In many cases, perhaps in most, the issue of what a plaintiff reasonably should have discovered is not a question that may be resolved as a matter of law at the summary judgment stage but instead is a question for the jury. See Smith v. Bell Telephone Co., [397 Pa. 134, 153 A.2d 477 (1959)], supra; Armacost v. Winters, supra; Bayless v. Philadelphia National League Club, [579 F.2d 37 (3d Cir.1978)], supra. Sometimes a case will arise where the facts will be undisputed and will lead unerringly to the conclusion that the length of time it took the plaintiff to discover the injury or its cause was unreasonable as a matter of law. See Aberman v. Funk, [278 Pa.Super. 385, 420 A.2d 594 (1980) ], supra. In such a case summary judgment may be appropriate.

Id., 284 Pa.Superior Ct. at 110, 425 A.2d at 443.

Instantly, there is no material dispute to be resolved by the factfinder. The question is solely whether from the facts presented a jury could reasonably conclude that appellant, if he had exercised due diligence, could not have discovered the operative cause of his injury and the causal relationship in 1977. See, O’Brien v. Eli Lilly & Co., 668 F.2d 704 (3d Cir.1981).

We remain convinced, giving the plaintiff the benefit of all reasonable inferences, that the jury could not have found that Dr. Brothman’s observation did not provide sufficient notice of possible wrongdoing and that through the exercise of reasonable diligence suit could not have been brought within two years. This is even more obvious given the cause and effect framework in which that comment was delivered. The statement was plain and unambiguous when expressed and would cause the ordinarily prudent person to be shocked and distraught especially after the prolonged and extensive treatment through which appellant had already been put.

We are also persuaded of the appropriateness of the summary judgment by the following admission appellant made in his letter to the Dental Society:

The above incidents made it clear to me that remaining a patient at Albert Einstein was bringing no progress to my case and as the above example shows, conditions were in some cases worse than when I began as a patient. Since February, 1977, Dr. Sobel was preparing crowns for my four top anterior teeth. In July, 1977, these crowns were back from the lab, however, my new Resident, Dr. Cohen, did not have any time to fit them on. I therefore informed Albert Einstein that I was leaving their care and that I would have whatever work that I still needed after being their patient for almost four years, completed elsewhere. I next visited the clinic to adjust my bill with them. I was informed at the clinic that I would not be charged for either the extraction or the hemisection since they admitted both of these cases were a result of their ‘mishandling’____

This statement makes it clear that the appellant had been supplied with enough information so as to be able to pursue the possibility that he had been a victim of malpractice long before the 1979 incident which he alleges to have been his first notice of possible mistreatment.

We also find that the alleged failure of other physicians to inform the appellant of the cause of his dental problems is irrelevant to the start of the statute. Relying on this alone creates a case, at best, of mistake, misunderstanding or lack of knowledge which does not toll the running of the statute of limitations. Schaffer v. Larzel ere, 410 Pa. 402, 189 A.2d 267 (1963); Keating v. Zemel, 281 Pa.Superior Ct. 129, 421 A.2d 1181 (1980). We can only conclude that appellant unreasonably delayed in investigating the improper discharge of services by appellee. Every person must exercise reasonable diligence in the protection of their own personal interests and well-being and in the pursuit of their legal rights against others.

If there exists in the community a generally applicable standard of care with respect to the treatment of his ailment, we see no reason to suppose that competent advice would not be available to the plaintiff as to whether his treatment conformed to that standard. If advised that he has been wronged, he may promptly bring suit. If completely advised to the contrary, he may be dissuaded, as he should be, from pressing a baseless claim. Of course he may be incompetently advised or the medical community may be divided on the crucial issue of negligence____ But however or even whether he is advised, the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort claimants must make. If he fails to bring suit because he is incompetently or mistakenly told that he does not have a case, we discern no sound reason for visiting the consequences of such error on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit, even though more than two years have passed from the plaintiffs discovery of the relevant facts about injury.

Therefore, we affirm the lower court’s order of summary judgment in favor of appellee Albert Einstein Medical Center on the basis of the bar of the statute of limitations.

Order affirmed.

      . This letter was introduced into the record in response to a request by AEMC for production of documents. No question exists between the parties as to the authenticity of this letter.

      . The order for summary judgment presently before us on appeal granted the motion made by AEMC. Neither that order nor this appeal has any bearing on defendant Stephen Sobel.

      . In his memorandum opinion accompanying the order of summary judgment, Judge Greenberg held that the two criteria necessary to start the running of the statute of limitations, knowledge of injury and operative cause, had been clearly evidenced by appellant’s letter to the Dental Society. Slip op. at 7-8.

      . 12 P.S. § 34 (repealed); 42 Pa.C.S.A. § 5524 provides:
      The following actions and proceedings must be commenced within two years:
      ... (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

      . For an excellent treatment of the judicial evolution of the Pennsylvania discovery rule, see Judge Spaeth’s opinion in Anthony v. Koppers Co., Inc., 284 Pa.Superior Ct. 81, 425 A.2d 428 (1980), rev'd. on other grounds, 496 Pa. 119, 436 A.2d 181 (1981).

      . In support of this theory, appellant relies on Carney v. Barnett, 278 F.Supp. 572 (E.D.Pa.1967), and Gemignani v. Philadelphia Phillies National League Baseball Club, Inc., 287 F.Supp. 465 (E.D.Pa.1967). Therein, the courts used language that the limitations statute does not begin to run until the “defendant’s culpability” can be ascertained or until the plaintiff knows that a claim exists. However, that language is not precise nor is the appellant’s reliance on it. In Carney, the court specifically stated: "[Pjlaintiff’s argument that he must first know his legal theory before the statute starts to run is without foundation." Id., at 575. For cases in the federal courts decided in accordance with the discovery rule standard we apply today see, O’Brien v. Eli Lilly & Co., 668 F.2d 704 (3d Cir.1981); Grabowski v. Turner & Newall, 516 F.Supp. 114 (E.D.Pa.1980); aff'd. DaMato v. Turner & Newall, Ltd., 651 F.2d 908 (3d Cir.1981); Huber v. McElwee-Courbis Construction Co., 392 F.Supp. 1379 (E.D.Pa.1974).

      . This analysis was applied in Petri, supra. There the plaintiff alleged negligence attending a breach birth performed approximately fourteen years before the suit was filed. Our court relied on the Volpe elements to reverse a summary judgment for defendant where the plaintiff knew her son was retarded, knew that forceps had been used to deliver her son, but a factual issue existed as to when she should reasonably have discovered that the use of forceps caused the retardation. Petri, supra, 307 Pa.Superior Ct. at 263, 453 A.2d 342.

      . See also, Grabowski v. Turner & Newall, 516 F.Supp. 114 (E.D.Pa. 1980), affirmed per curiam, DaMato v. Turner & Newall, Ltd:, 651 F.2d 908 (3d Cir.1981): “In sum we conclude that when a plaintiff knows the cause and source of his injury, his lack of knowledge about the legal basis for a prospective claim will not toll the statute.” Id., at 120.

      . In Kubrick, supra, the Supreme Court reversed a court of appeals decision which held that under the Federal Tort Claims Act, 28 U.S.C.A. § 2401(b), the statute of limitations commenced for a medical malpractice claim when the plaintiff became aware of the legal repercussions flowing from his injury. The Court stated: "[T]he putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort claimants must make.” Id. at 123, 100 S.Ct. at 360.

      . In Grubb v. Albert Einstein Medical Center, 255 Pa.Superior Ct. 381, 387 A.2d 480 (1978), this court appeared to have adopted the Carney rule of culpability, supra n. 6: "The statute begins to run as of the date of the injuries unless, in the exercise of reasonable diligence, the plaintiff could not have ascertained defendant’s culpability in the statutory period. When that culpability could not reasonably have been so ascertained, the statute begins to run as of the date it could reasonably have been discovered.” Grubb, supra, 255 Pa.Superior at 399-400, 387 A.2d at 489. However in a subsequent case, Keating v. Zemel, 281 Pa.Superior Ct. 129, 421 A.2d 1181 (1980), we attempted to interpret Grubb in a manner to mean, as we are saying presently, that a malpractice victim is not expected to enforce his claims until he has some reason to believe that medical treatment caused his injury.

      . Appellant places a great deal of importance on his allegation that Dr. Housman actually said "No” when he asked if treatment had been improper. As it is not a material issue of fact in that it does not change the outcome of our decision the allegation does not require any discussion.

      . Although we do not mean to say that any one of these factors is ordinarily sufficient to create the knowledge necessary to start the statute of limitations, all of them together, culminating with Broth-man’s observation, act as influential factors in determining appellant’s state of knowledge.

      . In Petri v. Smith, 307 Pa.Superior Ct. 261, 453 A.2d 342 (1982), we applied the Restatement’s definition of reasonableness: “those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others” Restatement, (Second), Torts § 283, comment b (emphasis added).

      . Appellant here refers to the "ongoing treatment” concept which states that the statute of limitations is tolled in a medical malpractice case until such time as the putative plaintiff is no longer under the defendant’s care. This is not the rule in Pennsylvania; at most it is only a factor in determining the reasonableness of plaintiff’s conduct. See, Greenberg v. McCabe, 453 F.Supp. 765 (E.D.Pa.1978), aff’d. 594 F.2d 854 (3d Cir.1979), cert. den., McCabe v. Greenberg, 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 51 (1979).

      . See also, O’Brien v. Eli Lilly & Co., 668 F.2d 704, 709 (3d Cir.1981), where appellant developed cancer caused by a drug administered to her mother during her 1956 pregnancy. In February 1976 the plaintiff appellant read a magazine article connecting the drug with cancer. She filed suit against the manufacturer in 1979. The Third Circuit Court of Appeals, applying Volpe, upheld a grant of summary judgment for Eli Lilly & Co.:
      Measuring the instant facts against this three-party standard we are persuaded that in 1976, when [plaintiff-appellant] was told that she had had cancer, she acquired knowledge of her injury; and that when she read the Newsweek article and consulted with Dr. Mituka she acquired knowledge from which by the exercise of due diligence, she could have discovered both the alleged operative cause of her injury — her mother's injestion of DES — and the causal relationship between the operative conduct and her injury____ The acquisition of actual knowledge, however, is not the trigger for the running of the limitations period under Pennsylvania law. The correct inquiry is not whether she had actual knowledge of all three Volpe elements before 1979, but 'whether [she] should reasonably be charged with that knowledge before that time.’

        Id., at 709.

      . The fact that appellant may not have known the identity of the dentist who performed the work is not relevant to the start of the limitations statute. In Keating v. Zemel, 281 Pa.Superior Ct. 129, 133—34 n. 4, 421 A.2d 1181, 1183-84 n. 4 (1980), we stated that once a victim is put on notice that there may be legal responsibility on the part of another or others, with the only outstanding problem being the identity of the culpable party, the statute’s commencement could not be delayed; "[W]e are unable to find Pennsylvania cases which allow extension of the statute of limitations after an ascertainable tortious episode where there has not been fraud or concealment.” Id., 281 Pa.Superior Ct. at 133-34 n. 4, 421 A.2d at 1183-84 n. 4.

      . See also, United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 360, 62 L.Ed.2d 259 (1979):


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    460 A.2d 305
    Jack A. BEAVER v. Hilma BEAVER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1983.
    Filed April 29, 1983.

      William S. Kreisher, Bloomsburg, for appellant.
    John M. Kuchka, Bloomsburg, for appellee.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   BROSKY, Judge:

This appeal follows the granting of a divorce to appellee, husband. The action was brought pursuant to the 1929 Divorce Law and was based on appellee’s allegations that his wife subjected him to indignities that rendered his condition intolerable and life burdensome. On appeal, Mrs. Beaver contends that her husband sustained neither his burden of proving that she had subjected him to indignities, nor his burden of showing that he was the injured and innocent spouse. For the reasons that follow, we reverse.

Initially, we must examine what is our scope of review. In Schrock v. Schrock, 241 Pa.Super. 53, 57-58, 359 A.2d 435, 437-438 (1976), we explained:

[I]t is our duty, on appeal, to make an independent study of the record and to determine whether a legal cause of action for divorce exists. Barr v. Barr, 232 Pa.Super. 9, 331 A.2d 774 (1974); Arcure v. Arcure, 219 Pa.Super. 415, 281 A.2d 694 (1971). Moreover, while the master’s findings of fact and recommendation that a divorce be granted are only advisory, where the issue is one of credibility and the master is the one who heard and observed the witness, his findings should be given the fullest consideration. Gehris v. Gehris, 233 Pa.Super. 144, 334 A.2d 753 (1975); Sells v. Sells, 228 Pa.Super. 331, 323 A.2d 20 (1974). Thus, in a case such as this, ‘[i]f the ultimate decision rests on a statement asserted by one party and denied by the other, where there is no corroborative evidence, demeanor on the stand is necessarily dispositive of the issue and is the kind of evidence that cannot effectively be reviewed by an appellate court, (citations omitted).’ Gehris v. Gehris, supra, 233 Pa.Super. at 148, 334 A.2d at 755.

Furthermore, as to the burden of proof placed on appellant, we note the following principles.

Appellate courts have not formulated a single definition of indignities. We explained in Barton v. Barton, 248 Pa.Super. 278, 283, 375 A.2d 96, 98 (1977):

[I]ndignities may consist of vulgarities, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, or malignant ridicule. Gehris v. Gehris, supra, 233 Pa.Super. at 147-48, 334 A.2d at 754-755. See also, McKrell v. McKrell, 352 Pa. 173, 42 A.2d 609 (1945); Sells v. Sells, 228 Pa.Super. 331, 323 A.2d 20 (1974); Fodor v. Fodor, 221 Pa.Super. 321, 292 A.2d 485 (1972); Gerenback v. Gerenback, 199 Pa.Super. 410, 186 A.2d 49 (1962). Obviously, several of the factors listed above may coalesce to justify a finding of indignities, although taken separately, no single incident or factor would be sufficient. See Gehris v. Gehris, supra.

In addition to proving indignities, the moving party must also prove that he or she is the injured and innocent spouse. Rorabaugh v. Rorabaugh, 302 Pa.Super. 1, 448 A.2d 64 (1982). To be innocent and injured, a spouse need not be blameless. Gray v. Gray, 220 Pa.Super. 143, 286 A.2d 684 (1971). The spouse who asserts that he or she is innocent and injured, however, must not provoke the alleged indignities, unless the other spouse’s retaliation is excessive. Rensch v. Rensch, 252 Pa.Super. 294, 381 A.2d 925 (1977). It has been said that a finding that the moving party is the innocent and injured spouse is a prerequisite for entitlement to a divorce on the grounds of indignities. Rorabaugh v. Rorabaugh, supra.

With these principles in mind, we turn to the facts of the instant appeal.

The parties were married in June, 1943. This divorce action was commenced by appellant in October, 1979. Mr. Beaver contends that his wife began to commit indignities in 1976, although almost all of his allegations stem from activity commencing in January, 1979.

Mr. Beaver did, however, cite one incident in 1976 that caused him distress. At that time, the parties’ son, who was in his late twenties, visited the parties’ home with his wife, child and mother-in-law. During the visit, appellant says his wife treated the guests very badly; and, as a result, their son said he would not return to their home.

Similarly, during a visit in early 1979, Mr. Beaver says his wife treated their daughter poorly. He cited as an example an occasion on which Mrs. Beaver told the daughter not to close the hasp on her watch against a table. Mr. Beaver said his wife had “balled out” the daughter. After their daughter left, Mr. and Mrs. Beaver had a disagreement as to Mr. Beaver’s purchase of a coat for their daughter during the visit. Mr. Beaver testified that his wife referred to their daughter as a “slut” and that hurt him so much that he threw hamburger at his wife, striking her.

As to the allegations that Mrs. Beaver’s behavior toward the two oldest children caused appellant distress, we note that it is true that if a spouse mistreats the child of the moving spouse, such mistreatment can constitute an indignity. McCaskey v. McCaskey, 253 Pa.Super. 360, 385 A.2d 378 (1978). However, in order to find that the abusive parent is not the innocent and injured spouse, the facts of each case must be considered, including the severity and regularity of abuse. McCaskey, supra. We have similarly considered the severity and frequency of the alleged abuse in this case and find the record insufficient to term Mrs. Beaver’s actions toward her oldest children an indignity to her husband.

The master did find that Mrs. Beaver verbally abused her husband calling him a “whore master” and that she falsely accused him of engaging in illicit affairs. These accusations were made to third parties and the record indicates no justification for them.

Although he sustained an objection to such evidence at hearing, the master also found as a fact that Mrs. Beaver had purposely used appliances in the house while her husband was taking showers, so as to deprive him of hot water.

The master also concluded that Mrs. Beaver had taken the telephone in her room off the hook, so as to make it impossible for Mr. Beaver to make or receive calls.

The master found that the parties had stopped sharing a bedroom in 1976 when appellant moved to another room. He found credible Mr. Beaver’s testimony that his wife did not clean his room or do his laundry.

The master also believed appellant’s testimony that his wife accused him, during a conversation with a third party, of buying an insurance policy on his youngest son because he planned to kill the boy.

We need not recite the many other factual findings made by the master. As to questions of credibility, we, of course, defer to his judgment. See Schrock, supra. We can assume that Mrs. Beaver engaged in the activity cited above. However, we disagree as . to other findings by the master.

In his report, the master says that most importantly, he found credible Mr. Beaver’s testimony that Mrs. Beaver had turned the parties’ youngest son against him.

Mr. and Mrs. Beaver have an adopted son, Scott, who was ten years old at the time of the hearing. The boy sleeps in the same room with his mother and is apparently fearful of and distant from his father.

We have no difficulty accepting the truth of the testimony that his son is fearful of Mr. Beaver. In fact, Mrs. Beaver may encourage the antagonism that Scott feels towards appellee. However, Mr. Beaver has not introduced evidence to substantiate his claim that Mrs. Beaver is responsible for the strained relationship.

When Mr. Beaver was asked to what he attributed the strain in his relationship with his son, he responded that he believed it was caused by his son spending most of his time with his mother. He said, “They are together continually day and night while I am out providing a livelihood. I lay the blame on the fact that he did witness my throwing this piece of hamburger at her, and he has witnessed a couple of arguments and he has taken a side with her through her influence against me.”

Mr. Beaver did not however, indicate any specific efforts by his wife designed to cause a strain in his relationship with Scott. Taken as credible, his testimony shows only that he believed his wife to be the cause of the problem. It provided no evidence of such. Furthermore, we have considered in this light Mr. Beaver’s testimony that after January, 1979, he remained distant from his family. Because he had not been asked by Mrs. Beaver to join her and Scott for dinner, Mr. Beaver did not eat with them, but took his meals out of the house. He said that he spent his time at home alone in a basement recreation room, but he also clearly indicated that he voluntarily isolated himself.

When Mrs. Beaver refused to discuss their problems on one occasion in February or March, 1979, Mr. Beaver gave up any attempt to speak with her. Instead, they communicated via notes. Mr. Beaver underlined the word “parasite” in the dictionary leaving it for his wife to see. The master found that he called his wife a parasite and told her he hated her.

In June and in August, 1979, Mr. Beaver made trips without his family. In June, he was gone three or four days and left a note for his wife informing her that he would be gone. In August, Mr. Beaver made a three-week trip to the West Coast, informing Mrs. Beaver by way of a letter mailed immediately prior to his departure. In August, he enclosed $150 with the letter. Mrs. Beaver was not told the addresses where Mr. Beaver would be staying, nor was she told in advance of his plans. Upon his return from the June trip, Mrs. Beaver did throw Mr. Beaver’s clothes out of the dresser and called him a “whore master.” While we certainly do not encourage such behavior, we do believe that Mr. Beaver’s unannounced trip may have provoked Mrs. Beaver’s response.

Similarly, when Mr. Beaver was asked to what he attributed his wife’s unsubstantiated allegations of adultery, he responded, “Probably because I don’t spend much time at home. I try to avoid being at home.”

Mr. Beaver was asked if he had ever provoked his wife in any way by leaving her notes or messages. He responded, “I wouldn’t be surprised that I have, yes.”

The master also found that Mr.- Beaver swung a footstool at his wife and threatened to kill her.

Although the master found much of appellant’s conduct reprehensible, he nonetheless concluded that Mr. Beaver was provoked by his wife.

Even accepting the master’s conclusion that the credible evidence as well as appellant’s demeanor and conduct in court evidenced her hatred for and estrangement from appellee, we cannot agree with his conclusion that appellee was an injured and innocent spouse.

By his own admission, Mr. Beaver separated himself from his family and provoked his wife to anger.

Appellee complained that after the incident with his daughter in January, 1979, the marriage deteriorated. He laid blame for that deterioration on his wife’s unwillingness to talk about their problems. Yet, by his own admission, appellant made but one attempt after January, 1979 to speak with his wife about their difficulties. He clearly said he made no other efforts and in fact absented himself from his family, not even taking meals with them when he was at home.

Although a party need not be entirely free from fault to be an innocent and injured spouse, Rorabaugh v. Rorabaugh, supra, it is apparent to us that here the husband’s derelictions were not a minor or passing phenomenon, but went to the very heart of the cause which brought about the marital difficulties. See Liebendorfer v. Liebendorfer, 289 Pa.Super. 339, 433 A.2d 480 (1981).

Order reversed.

      . Act of May 2, 1929, P.L. 1237, § 10, as amended; (Repealed by the Act of April 2, 1980, P.L. 63, No. 26 §§ 101 et seq.; 23 Pa.S.A. § 101 et seq.)


author: WIEAND, Judge:

text:
    460 A.2d 310
    COMMONWEALTH of Pennsylvania v. Milton E. SCARBOROUGH, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1982.
    Filed April 29, 1983.
    Petition for Allowance of Appeal Denied Oct. 12, 1983.

      John M. Humphrey, Williamsport, for appellant.
    Kenneth D. Brown, District Attorney, Williamsport, for Commonwealth, appellee.
    Before WIEAND, BECK and MONTEMURO, JJ.
   WIEAND, Judge:

Milton Scarborough was tried jointly with Robert Hubble on charges arising from the killing of Mrs. Claire Kepner and her two small children by persons who broke into their Lycoming County home and took approximately eighty ($80.00) dollars. A jury found Scarborough guilty of burglary, robbery, theft, conspiracy and three counts of murder in the third degree. Post verdict motions were denied, a sentence of imprisonment was imposed, and this appeal followed. Scarborough contends that the evidence was insufficient to sustain the jury’s finding that he participated in the commission of the crimes against Mrs. Kepner and her children. He also argues that he was unfairly prejudiced by having the charges against him consolidated with those against Robert Hubble for purposes of trial and that extra-judicial statements made by David Hubble were improperly admitted against him. For reasons appearing in this opinion, we affirm the judgment of sentence.

In reviewing the sufficiency of the evidence to sustain the convictions, we are required to view the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove the elements of the crimes charged and that appellant committed those crimes beyond a reasonable doubt. Commonwealth v. Bachert, 499 Pa. 398, 402, 453 Pa. 931, 933 (1982); Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982); Commonwealth v. Goldblum, 498 Pa. 455, 466, 447 A.2d 234, 240 (1982); Commonwealth v. Grabowski, 306 Pa.Super. 483, 487, 452 A.2d 827, 829 (1982); Commonwealth v. Lowry, 306 Pa.Super. 277, 279, 452 A.2d 552, 553 (1982). Moreover, we must consider all the evidence received, whether the trial court’s rulings thereon were correct or incorrect. Commonwealth v. Harper, 485 Pa. 572, 576, 403 A.2d 536, 538 (1979); Commonwealth v. Hoskins, 485 Pa. 542, 546, 403 A.2d 521, 523 (1979); Commonwealth v. Waldman, 484 Pa. 217, 222-223, 398 A.2d 1022, 1025 (1979); Commonwealth v. Plusquellic, 303 Pa.Super. 1, 4, 449 A.2d 47, 49 (1982); Commonwealth v. Corish, 296 Pa.Super. 92, 94-95, 442 A.2d 311, 313 (1982).

On the night of August 5, 1976, Scarborough, Robert Hubble, David Hubble, John Shafer, Colin Brown and others had gathered at Ricky Snyder’s “shack” on the outskirts of Muncy in Lycoming County. With ten dollars borrowed from Colin Brown, Scarborough, Shafer and the two Hubble brothers left in David Hubble’s car, with Scarborough driving, to buy some beer. They purchased a case of beer at a bar in Muncy and drove around the countryside as they drank it. Robert Hubble suggested that they “hit” a place and, hearing no objections, directed appellant to pull into the driveway of a randomly selected residence. Leaving Shafer behind as lookout, the three remaining men ran to and entered the home occupied by Mrs. Kepner and her two children. When they returned to the car, appellant again took the wheel and Shafer observed Robert Hubble pass a handgun to his brother, David, with instructions to place it inside the glove compartment of the car. They then went into Muncy once more, purchased additional beer with money obtained from the Kepner home, and returned to the “shack.” There, David Hubble told Shafer, Brown and Snyder, in the presence of his brother and appellant, that they had killed the people in the house in order to get their money. He also described the manner in which he had played “tic-tac-toe” with a knife on the abdomen of one of the children. Appellant did not deny or refute in any way what David Hubble had said. Robert Hubble remonstrated with his brother, however, telling him to “shut the f... up.”

Other evidence produced by the Commonwealth showed that the approximate sum of eighty dollars had been taken from the Kepner home and that Mrs. Kepner and her two small children had been shot to death with the same .32 caliber pistol. The abdomen of one of the children had been slashed repeatedly with a knife.

This evidence was sufficient to sustain appellant’s convictions. He had been the driver of the vehicle used to get to and escape from the scene of the crime. It was he who, at the request of Robert Hubble, had pulled the car into the Kepner driveway and accompanied Robert and David Hubble into the home. He was present and participated in the robbery and made no attempt to prevent the killings. Thereafter, he drove to the bar where stolen money was used to purchase more beer before returning to the “shack.” Thus, although the evidence did not show that appellant had committed the actual killings, he was present and actively participating in the burglary and robbery at the Kepner home. He was vicariously liable criminally for the acts committed by Robert and David Hubble in furtherance of the common scheme to rob Mrs. Kepner and take her money. See: 18 Pa.C.S. §§ 306, 2501(a). See also: Commonwealth v. Tate, 485 Pa. 180, 185, 401 A.2d 353, 355 (1979); Commonwealth v. Roux, 465 Pa. 482, 490, 350 A.2d 867, 871 (1976); Commonwealth v. Darden, 311 Pa.Super. 170, 173, 457 A.2d 549, 550 (1983); Commonwealth v. Plusquellic, supra, 303 Pa.Superior at 5, 449 A.2d at 50. See generally: Commonwealth v. Davenport, 307 Pa.Super. 102, 110, 452 A.2d 1058, 1062 (1982).

“Questions of consolidation or severance of defendants for trial [rest] in the discretion of the trial judge and his rulings on such matters will not be disturbed on appeal except for manifest abuse of discretion.” Commonwealth v. Johnson, 291 Pa.Super. 566, 581-582, 436 A.2d 645, 653 (1981), quoting Commonwealth v. Tolassi, 258 Pa.Super. 194, 199, 392 A.2d 750, 753 (1978), aff'd, 489 Pa. 41, 413 A.2d 1003 (1980). When charges against several defendants are consolidated for trial, however, the trial judge must exercise extreme care that evidence admissible against one defendant is not improperly received against another.

On the evening of the killings and while appellant, Shafer and the Hubble brothers remained at the “shack,” David Hubble said that they had had to kill the woman and the kids to get the money. Appellant did not deny or refute this in any way. Robert Hubble told his brother to “shut up.” On the following night, at the Step Inn, David Hubble again referred to the Kepner “job” as well as his playing tic-tac-toe. None of the witnesses at trial recalled that David Hubble’s statements on this occasion included any details of the prior day’s events. On this occasion, Robert Hubble threatened to kill his brother if he continued to discuss the Kepner job. Appellant, however, was not present.

The trial court held that all of David Hubble’s extra-judicial statements were admissible against appellant and Robert Hubble because they were made during the conspiracy and in furtherance of it. Subsequently, the court en banc held that the receipt of these statements was proper for the additional reason that the failure of appellant and Robert Hubble to deny the statements of David Hubble constituted tacit or implied admissions.

If a person conspires with others to do an unlawful act, each represents the other with respect to the act to be accomplished, and everything said by one in furtherance of and during the continuance of the common purpose is admissible against all. Commonwealth v. Holloway, 429 Pa. 344, 346, 240 A.2d 532, 533-534 (1968). Thus, declarations of one co-conspirator made to third parties, even in the absence of other conspirators, are admissible as evidence against all. Commonwealth v. Evans, 489 Pa. 85, 92, 413 A.2d 1025, 1028 (1980); Commonwealth v. Porter, 449 Pa. 153, 161, 295 A.2d 311, 314 (1972); Commonwealth v. Ransom, 446 Pa. 457, 461-462, 288 A.2d 762, 764 (1972); Commonwealth v. Ellsworth, 409 Pa. 505, 509, 187 A.2d 640, 642 (1963); Commonwealth v. Wilson, 394 Pa. 588, 607, 148 A.2d 234, 244, cert. denied, 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed.2d 82 (1959); Commonwealth v. Weitkamp, 255 Pa.Super. 305, 323-324, 386 A.2d 1014, 1024 (1978). However, if the common enterprise is at an end, whether by accomplishment or abandonment, evidence of the declarations of one of the actors made thereafter is not admissible against his former conspirators. Commonwealth v. Evans, supra, 489 Pa. at 92-93, 413 A.2d at 1028-1029; Commonwealth v. Ransom, supra, 446 Pa. at 461-462, 288 A.2d at 764; Commonwealth v. Holloway, supra, 429 Pa. at 346, 240 A.2d at 534; Commonwealth v. Berman, 119 Pa.Super. 315, 181 A. 244 (1935).

In Commonwealth v. Pass, 468 Pa. 36, 360 A.2d 167 (1976), the Supreme Court addressed the issue of the duration of a conspiracy and adopted the following language from United States v. Hickey, 360 F.2d 127, 141 (7th Cir.1966), cert. denied, 385 U.S. 928, 87 S.Ct. 284, 17 L.Ed.2d 210 (1966):

“The duration of a conspiracy depends upon the facts of the particular case, that is, it depends upon the scope of the agreement entered into by its members. Generally, the conspiracy ends when its principal objective is accomplished because no agreement to retain secrecy after the achievement of the unlawful end can be shown or implied by mere ‘acts of covering up.’ ... But the fact that the ‘central objective’ of the conspiracy has been nominally attained does not preclude the continuance of the conspiracy. Where there is evidence that the conspirators originally agreed to take certain steps after the principal objective of the conspiracy was reached, or evidence from which such an agreement may reasonably be inferred, the conspiracy may be found to continue. Atkins v. United States, 307 F.2d 937, 940 (9th Cir.1962); cf, United States v. Allegretti, 340 F.2d 254, 256 (7th Cir.1964), cert. denied, 381 U.S. 911, 85 S.Ct. 1531, 14 L.Ed.2d 433 (1965)____ The crucial factor is the necessity for some showing that the later activities were part of the original plan.”

Commonwealth v. Pass, supra, 468 Pa. at 45-46, 360 A.2d at 171. See also: Commonwealth v. Evans, supra, 489 Pa. at 92-93, 413 A.2d at 1028-1029.

The agreement in the instant case, i.e., the purpose for which Shafer, the Hubbles and appellant left the “shack,” was to purchase beer for consumption and to spend an idle evening. In order to obtain additional funds to purchase beer, they decided to “hit” the Kepner home. After they had killed the occupants and taken their money, the conspirators purchased more beer and returned to the “shack,” where the beer was drunk. These activities were all part of the original plan. Statements made by the conspirators while these activities continued were made during the continuance of the conspiracy and in furtherance of it. Therefore, the statements made by David Hubble at the “shack” were a part of the original conspiracy and were properly received in evidence against appellant. By the following evening, however, the original plan had been accomplished and the conspiracy had come to an end. Extrajudicial statements made by David Hubble at the Step Inn were not admissible against appellant as declarations made during and in furtherance of the conspiracy.

In the companion case of Commonwealth v. Hubble, 314 Pa.Super. —, 460 A.2d 784, decided of even date herewith, we have held that David Hubble’s declarations were admissible against Robert Hubble because the latter’s failure to deny the accusations made by his brother constituted tacit or implied admissions. The rule is that “[i]f a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or [tacit] admission of guilt.” This statement of the rule, adopted from People v. Preston, 9 Cal.3d 308, 313-314, 107 Cal.Rptr. 300, 304, 508 P.2d 300, 304 (1973), has been followed continuously by the courts of Pennsylvania. See: Commonwealth v. Coccioletti, 493 Pa. 103, 113-114, 425 A.2d 387, 392 (1981); Commonwealth ex rel. Smith v. Rundle, 423 Pa. 93, 98, 223 A.2d 88, 90 (1966); Commonwealth v. Bolish, 381 Pa. 500, 523, 113 A.2d 464, 476 (1955). Justification for the rule is “the age-long experience of mankind that ordinarily an innocent person will spontaneously repel false accusations against him, and that a failure to do so is therefore some indication of guilt.” Commonwealth v. Bolish, supra, 381 Pa. at 523, 113 A.2d at 476.

David Hubble’s declarations at the “shack” on the night of the killings were made in the presence of appellant, who made no attempt to deny or refute the accusatory remarks. The accusations made by the speaker and appellant’s failure to respond, therefore, were admissible as tacit admissions. On the following evening, however, appellant was not present at the Step Inn. He could neither have heard nor responded to David Hubble’s reference to the events of the prior day. It is clear, therefore, that David Hubble’s statements at the Step Inn and his brother’s response thereto were not admissible against appellant. If, because of the joint trial, the court decided to receive this evidence, it had a duty at the very least to instruct the jury regarding its limited purpose. This was not done. The evidence was admitted without appropriate limitation upon the use to be made of it by the jury.

The error, however, was harmless and does not require the granting of a new trial. In the first place, appellant’s participation in the conspiracy and his presence at the time of the killings had been fully established by the testimony of John Shafer. Moreover, appellant’s failure to deny the incriminating statements made by David Hubble in appellant’s presence immediately following the robbery and killings constituted an implied admission of his involvement. This evidence described the relevant events in much greater detail than the very general statements made by David Hubble at the Step Inn. Indeed, the evidence pertaining to statements made by David Hubble on this occasion was so vague and contained so little detail regarding the Kepner robbery that it had no evidentiary value whatsoever against anyone other than Robert Hubble. The statements made by David Hubble on this occasion did not incriminate appellant or implicate him in any way. Shafer’s testimony was that on this occasion David Hubble had been “talking about the same — about the job, about the Kepners.” On cross-examination, Shafer again said: "... he started talking about what happened, again, you know, just how to play ticktactoe and stuff, and, I don’t know, about that time Bob came out ____” Brown’s testimony did not refer to David’s statements, for he arrived only as Robert Hubble told his brother to be quiet. The error in receiving this evidence without cautioning the jury that it was not competent evidence against appellant, therefore, was harmless beyond a reasonable doubt. Commonwealth v. Evans, supra. See generally: Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). It did not implicate appellant in the killings in any way.

Appellant also contends that the trial court erred in refusing a requested instruction regarding involuntary intoxication. Our examination of the record compels us to agree with the trial court’s observation that there was no evidence of involuntary intoxication because appellant’s defense was that he had not been present at the time of the killings.

Next, appellant complains because the trial court refused to award a new trial on grounds of after-discovered and recanting testimony. This evidence was the same evidence offered on behalf of Robert Hubble. We have considered the nature of that evidence and have reviewed the trial court’s findings with respect thereto in the appeal of Robert Hubble, and there is no reason to repeat here what was said in the opinion filed in that case. Suffice it to say that we perceive no reason for disturbing the trial court’s finding that this evidence was incredible and unworthy of belief.

Finally, appellant contends that the trial court’s sentence of three consecutive ten to twenty year terms on the murder convictions and concurrent terms for the lesser convictions was excessive because in the normal course of events Robert Hubble would become eligible for parole before he would. Imposition of a proper sentence is a matter committed to the sound discretion of the trial court; unless the sentence exceeds the statutory maximum or is so excessive as to constitute a manifest abuse of discretion, the trial court’s determination will not be disturbed. Commonwealth v. Plank, 498 Pa. 144, 145, 445 A.2d 491, 492 (1982); Commonwealth v. Townsend, 497 Pa. 604, 606, 443 A.2d 1139, 1140 (1982); Commonwealth v. Casuccio, 308 Pa.Super. 450, 454, 454 A.2d 621, 633 (1982); Commonwealth v. Parry, 306 Pa.Super. 390, 393, 452 A.2d 781, 782 (1982). The trial court fully considered appellant’s background and the nature of the crimes of which he had been convicted. There was no abuse of discretion. The parole possibilities, which are for the consideration of the Board of Probation and Parole, do not render appellant’s sentence greater than Hubble’s sentence of life imprisonment.

The judgment of sentence is affirmed.

      . The same jury found Robert Hubble guilty of similar offenses but fixed his degree of guilt at murder in the first degree.

      . John Shafer, who had not entered the Kepner home but had remained outside as a lookout, entered pleas of guilty to robbery, burglary and theft. He testified as a Commonwealth witness.

      . David Hubble was tried by a separate jury, and he, too, was found guilty of all charges with findings of murder in the second degree.

      . Shafer testified that the encounter occurred on the night after the killings. Brown’s recollection was that it was the second night follow- ' ing the killings.

      . The rule of tacit admissions, of course, is circumscribed by Fifth Amendment guarantees against self-incrimination. Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967), overruling in part Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889 (1943). However, this limitation applies only to tacit admissions made while in the custody or presence of law enforcement personnel. Commonwealth v. Coccioletti, supra, 493 Pa. at 113-114, 425 A.2d at 392. See: Commonwealth v. Schmidt, 452 Pa. 185, 204-205, 299 A.2d 254, 255 (1973).


author: CIRILLO, Judge:

text:
    460 A.2d 316
    COMMONWEALTH of Pennsylvania v. Kenneth H. RUSSELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1983.
    Filed April 29, 1983.

      John H. Chronister, Assistant Public Defender, York, for appellant.
    Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   CIRILLO, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of York County, entered on June 5, 1981.

On January 13, 1981 appellant, Kenneth H. Russell, was tried before the Honorable John T. Miller, sitting without a jury, and convicted of burglary, aggravated assault, and criminal attempt to commit rape. On April 22, 1981 appellant’s post-trial motions for a new trial and in arrest of judgment were denied and dismissed. Appellant was sen-fenced by Judge Miller on June 5, 1981 to terras of imprisonment of not less than 10 nor more than 20 years for burglary, not less than 2 nor more than 4 years for aggravated assault, and not less than 5 nor more than 10 years for criminal attempt to commit rape. The sentences for aggravated assault and attempted rape were ordered to run concurrently with the sentence for burglary. Appellant’s motion for reconsideration of sentence was denied and this appeal followed.

Appellant contends that the evidence was insufficient to sustain a conviction on any of the charges and that the sentence of the Court was excessive under the circumstances of the case. The test of the sufficiency of the evidence in a criminal case is whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, it is sufficient to enable the trier of fact to find every element of the crimes charged beyond a reasonable doubt. Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982).

Viewed in accordance with this standard, the evidence established that on May 12, 1980, between 1:00 a.m. and 2:00 a.m. the appellant forced open a sliding glass door at the victim’s residence with a screwdriver. The victim, who had been sleeping, was awakened and discovered the appellant inside the threshold. She screamed and ran to the door to attempt to close it. However, before she could shut the door, appellant grabbed her and a struggle ensued. Both the victim and the appellant fell onto the patio outside the door. The appellant grabbed the victim around the neck and began to choke her until she could no longer breathe, gagged, and felt faint. Unable to repel her attacker, the victim asked if he was going to rape her. The appellant did not answer, but tied her hands behind her back and placed tape over her eyes, as she lay face down on the patio.

Appellant then picked the victim up and brought her into the house. Appellant repeatedly mumbled that he could not do it this way. Appellant proceeded to cut the victim’s T-shirt, bra, jeans, and panties from her body with a knife. Appellant fondled the victim’s breasts and put his finger in her vagina. At this time, the police, responding to a call from neighbors, arrived at the victim’s residence and rang the doorbell. The appellant then took the victim to the bathroom, removed the twine from her hands and the tape from her eyes, and ordered her to go to the door and tell the police that everything was all right. The victim went to the door, ran from the house, and told the police what had happened. Appellant was apprehended later that day.

Appellant contends that the evidence is insufficient to support a conviction for aggravated assault. Specifically, appellant contends that there is no evidence that the victim suffered serious bodily injury. Appellant’s claim is without merit. In defining the crime of aggravated assault 18 Pa.C.S.A. 2702(a)(1) provides in pertinent part:

A person is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.

“Serious bodily injury” is defined in 19 Pa.C.S.A. 2301 as:

Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

As the statute makes clear, a person can be found guilty of aggravated assault if he attempts to cause serious bodily injury; it is not necessary that the victim actually suffer serious bodily injury. Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978); Commonwealth v. Pandolfo, 300 Pa.Super. 447, 446 A.2d 939 (1982). However, as our Supreme Court said in Commonwealth v. Alexander, 447 Pa. at 194, 383 A.2d 889:

Where the injury actually inflicted did not constitute serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury. Criminal intent may be proved by direct or circumstantial evidence.

In Alexander, the defendant walked up to a man on the street and struck him in the face with his fist. The victim suffered an injury to his nose. The Commonwealth did not contend that the defendant in fact inflicted serious bodily injury upon the victim, but that the defendant’s action in striking the victim was sufficient evidence to show that the defendant intended to inflict serious bodily injury and thus supported the conviction of aggravated assault. This Court accepted the Commonwealth’s argument stressing that the blow was directed at the victim’s head, a vital part of the body. Our Supreme Court reversed stating, “we cannot say that the mere fact that a punch was delivered to that portion of the body is sufficient, without more, to support a finding that the defendant intended to inflict serious bodily injury.” Id. 477 Pa. at 194, 383 A.2d at 889. (emphasis in original) Nor, the Court concluded could the requisite intent be inferred from the circumstances surrounding the defendant’s attack on the victim in that case. The Court said,

In this case there simply are no such circumstances to support a finding that appellant harbored the requisite intent. There is no evidence that appellant was disproportionately larger or stronger than the victim; appellant was not restrained from escalating his attack upon the victim; appellant had no weapon or other implement to aid his attack; appellant made no statements before, during, or after the attack which might indicate his intent to inflict further injury upon the victim. Appellant delivered one punch and walked away.

Id. 477 Pa. at 194, 383 A.2d at 889-90.

However, the Court went on to state:
We hasten to add that a simple assault combined with other surrounding circumstances may, in a proper case, be sufficient to support a finding that an assailant attempted to inflict serious bodily injury, thereby constituting aggravated assault.

Id. 477 Pa. at 194, 383 A.2d at 889.

In Commonwealth v. Kibe, 258 Pa.Super. 353, 392 A.2d 831 (1978), a female victim was attacked from behind by a man as she walked to her parked car. The man ordered her to get into her car but she refused to do so. The man then began to loosen his pants and the victim, fearing impending rape, screamed. The assailant struck her in the face, fracturing her nose. In affirming the assailant’s conviction for aggravated assault this Court said:

In our opinion the facts in the instant case present sufficient additional circumstances to support the aggravated assault conviction, and therefore Commonwealth v. Alexander, supra does not control.
Where a lone woman is approached at a late hour from the rear without warning by a male, ordered into her car, put in fear of an impending rape, and upon her refusal, struck with such force in the face as to fracture her nose, we hold that evidence sufficient to support a conviction for aggravated assault.

Id. 258 Pa.Super. at 357-58, 392 A.2d at 832-33.

Likewise, in the instant case as in Kibe, the victim, a lone woman, was attacked at night without warning and put in fear of impending rape. Thus as in Kibe, there are additional circumstances, which combined with the appellant’s act of choking the victim, are sufficient to establish beyond a reasonable doubt that appellant intended and attempted to inflict serious bodily injury upon the victim. The evidence therefore is sufficient to support a conviction for aggravated assault.

Appellant also contends that the evidence was insufficient to support his conviction for attempted rape. Specifically, appellant contends that the evidence was insufficient to prove that he had the intent to commit the crime of rape, and that the acts done by him did not constitute a substantial step toward the commission of the crime of rape. In support of these contentions, appellant argues that at no time did he ever tell the victim he intended to rape her, that he removed only his shirt and shoes, and that while he had ample opportunity to rape the victim, he did not do so.

In defining the crime of rape, 18 Pa.C.S.A. 3121 provides in pertinent part:

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;

Criminal attempt is defined in 18 Pa.C.S.A. 901(a) which provides,

A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.

In the instant case the same acts which established beyond a reasonable doubt the appellant’s intent to commit the crime of rape also constituted a substantial step toward the commission of that crime. In Commonwealth v. Bullock, 259. Pa.Super. 467, 472-73, 393 A.2d 921, 923 (1978), this Court said:

With regard to attempted rape, appellant contends that ripping Miss Kirby’s shirt, pulling down her bra, and attempting to remove her pants was not so substantial a step toward rape to fulfill the requirement of an attempt. Crimes Code, 18 Pa.C.S. § 901(a) (1973). It should be noted that appellant had already committed the sexual offense of indecent assault under the Crimes Code, 18 Pa.C.S. § 3126(1) when he tore open Miss Kirby’s shirt and ripped down her bra. Especially given the awesome violence of appellant’s attack on Miss Kirby, and because he went further and attempted to remove Miss Kirby’s pants, it was reasonable for the fact-finder to conclude that appellant had taken a substantial step toward rape. Cf Commonwealth v. White, 232 Pa.Super. 176, 181, 335 A.2d 436 (1975). Indeed, it would appear that the only other reasonable inference which could arise from appellant’s conduct was that he intended to commit involuntary deviate sexual intercourse, also a felony of the first degree. Crimes Code, 18 Pa.C.S. § 3123. Since orthodox intercourse is the more common act, rape was the more natural inference.

See also Commonwealth v. Moody, 295 Pa.Super. 106, 441 A.2d 371 (1982).

In the instant case, the appellant cut all the victim’s clothing from her body with a knife, tied her up, placed tape over her eyes, fondled her breasts and put his finger in her vagina. Appellant was interrupted when the police rang the door bell. As this Court noted in Commonwealth v. Gilliam, 273 Pa.Super. at 589-90, 417 A.2d at 1205 (1980), “[t]he substantial step test broadens the scope of attempt liability by concentrating on the acts the defendant has done and does not any longer focus on the acts remaining to be done before actual commission of the crime.” In the instant case appellant’s acts clearly constituted a substantial step toward the commission of the crime of rape.

Likewise, this same evidence also establishes appellant’s intent to commit rape. Intent can be proven by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant circumstances. Commonwealth v. Alexander, supra; Commonwealth v. Gregory, 267 Pa.Super. 103, 406 A.2d 539 (1979). In the instant case the appellant bound and blindfolded the victim and cut off all her clothing with a knife. He repeatedly said “1 can’t do it this way.” The appellant fondled the victim’s breasts and put his finger in her vagina. This evidence is sufficient to prove beyond a reasonable doubt appellant’s intent to commit rape.

Appellant also contends that the evidence was insufficient to sustain his conviction of burglary. In defining the crime of burglary 18 Pa.C.S.A. 3502(a) provides in pertinent part:

A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.

Appellant does not dispute that he entered the victim’s residence, that it was an occupied structure, that it was not open to the public, or that he was not licensed or privileged to enter. Appellant only contends that the evidence is insufficient to establish that at the time he entered the victim’s residence he had the intent to commit the crime of rape. Appellant contends that at the time he entered the victim’s residence he intended only to converse with the victim, to get to know her better.

In order to be convicted of burglary, the defendant must have formed the intent to commit a crime when he entered the victim’s residence, not after he entered. Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980). The entry must be contemporaneous with the intent to commit a crime therein. Commonwealth v. Gonzales, 297 Pa.Super. 66, 443 A.2d 301 (1982). Although the Commonwealth is not required to specify in a burglary indictment or information what crime the accused allegedly intended to commit, where such crime is specified the Commonwealth is required to prove the requisite intent for that crime. Commonwealth v. Lewis, 276 Pa.Super. 451, 419 A.2d 544 (1980). This intent may be established by the defendant’s words or inferred from his conduct or from the attendant circumstances Commonwealth v. Gonzales, supra; Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979).

In the instant case the evidence establishes beyond a reasonable doubt that at the time appellant entered the victim’s residence he had the intent to commit rape. This intent can be inferred from the evidence that when he forcibly entered the victim’s residence he brought with him the twine, tape and knife which he used to bind, blindfold and strip the victim. This evidence belies appellant’s story that he intended only to converse with the victim. The evidence thus establishes beyond a reasonable doubt the requisite contemporaneous intent to commit rape and therefore supports appellant’s conviction for burglary.

Thus, the evidence established appellant’s guilt beyond a reasonable doubt of burglary, aggravated assault and attempted rape.

Finally, appellant contends that the Trial Court’s sentence is excessive under the circumstances of this case. The imposition of sentence is a matter vested in the sound discretion of the sentencing judge, whose determination will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982). If the sentence is within statutory limits there is no abuse of discretion unless the sentence is so manifestly excessive as to inflict too severe a punishment. Id.

The sentences in the instant case are within the statutory limits. Burglary is a felony of the first degree, 18 Pa.C.S.A. 3502(c), and as such is punishable by a term of imprisonment which may not exceed 20 years. 18 Pa.C.S.A. 1103(1). Appellant was sentenced on the burglary conviction to not less than 10 nor more than 20 years imprisonment. Aggravated assault under 18 Pa.C.S.A. 2702(a)(1) is a felony of the second degree and as such is punishable by a term of imprisonment which may not exceed ten years. 18 Pa.C.S.A. 1103(2). On the aggravated assault charge appellant was sentenced to not less than two nor more than 4 years imprisonment. With regard to the sentence for attempted rape, 18 Pa.C.S.A. 905(a) provides:

Except as otherwise provided in this section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy. An attempt, solicitation or conspiracy to commit murder or a felony of the first degree is a felony of the second degree.

Rape is a felony of the first degree. 18 Pa.C.S.A. 3121. Therefore under section 905(a), attempted rape is punishable as a felony of the second degree. A felony of the second degree is punishable by a term of imprisonment of not more than 10 years. 18 Pa.C.S.A. 1103(2). Appellant was sentenced on the conviction of attempted rape to not less than 5 nor more than 10 years in prison. Thus, the sentences are within statutory limits.

In exercising it’s sentencing discretion, the Court must consider the general principles and standards of the Sentencing Code and the specific factors of the particular sentencing alternatives. The Court must be guided by the general standard, that the sentence should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. 42 Pa.C.S.A. 9721(b). Furthermore, to assure effective appellate review of sentencing, the Trial Court must set forth on the record the reasons for the sentence. Id. While this statement of reasons need not specifically cite or include the language of the Sentencing Code, it must demonstrate that the Court considered the factors set forth in the Code. Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982). In the instant case, the Trial Court imposed a sentence of total confinement. 42 Pa.C.S.A. 9725 provides:

The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:

(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

The record of the sentencing proceeding clearly demonstrates that the Trial Court considered the general standards of Section 9721 and the specific factors of Section 9725. The Court considered appellant’s psychological problems, his past criminal history, and the nature, circumstances and gravity of his offenses. The Court considered the appellant’s past conviction for assault with intent to ravish, aggravated assault and battery, and mayhem. Furthermore, the Court noted that the instant offenses occurred less than six weeks after appellant’s release on parole. The record clearly indicates the Trial Court’s conclusion that the appellant presented an undue risk to the community and was in need of correctional treatment that could best be provided by his commitment to an institution.

Thus, considering the nature, circumstance, and gravity of the offense, the appellant’s past criminal history and need for rehabilitation and treatment, and the need to protect the public,- the sentences being within statutory limits do not constitute an abuse of discretion nor are they manifestly excessive so as to inflict too severe a punishment.

Judgment of sentence affirmed.

      . Act of December 6, 1972, P.L. 1482, No. 334, Section 1; 18 Pa.C.S.A. 3502.

      . Act of December 6, 1972, P.L. 1482, No. 334, Section 1, as amended by the Act of October 16, 1980, P.L. 978, No. 167, Section 2; 18 Pa.C.S.A. Section 2702.

      . Act of December 6, 1972, P.L. 1482, No. 334, Section 1; 18 Pa.C.S.A. Section 901(a).

      . Id.; 18 Pa.C.S.A. 3121.

      . Act of December 30, 1974, P.L. 1052 No. 345, Section 1 as amended; 42 Pa.C.S.A. Section 9701 et seq.