author: HUDOCK, Judge: OLSZEWSKI, Judge,

text:
    584 A.2d 327
    Gloria JARRETT, Selena Walker, and Mary Baker, Appellees, v. PENNSYLVANIA NATIONAL MUTUAL INSURANCE COMPANY and The Travelers Insurance Company, Appellee. Appeal of PENNSYLVANIA NATIONAL MUTUAL INSURANCE COMPANY. Gloria JARRETT, Selena Walker, and Mary Baker, Appellants, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY and Travelers Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1990.
    Filed Dec. 28, 1990.

      William C. McGovern, Philadelphia, for Pennsylvania Nat., appellant (at 2337) and appellee (at 2516).
    J. Scott Watson, Philadelphia, for Jarrett, appellants (at 2516) and appellees (at 2337).
    Risa J. Alberts, Philadelphia, for Travelers, appellee, (at 2337 and 2516).
    Before OLSZEWSKI, DEL SOLE and HUDOCK, JJ.
   HUDOCK, Judge:

These cross-appeals are from the judgment entered on the verdict reached by the trial court after a non-jury trial. The court found Pennsylvania National Mutual Casualty Insurance Company (“PNI”) was liable to the Plaintiffs below for their claim for first-party benefits under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. §§ 1701-1798 (amended). The court denied the Plaintiffs’ request for attorney’s fees. PNI’s appeal concerns the court’s finding of liability; the Plaintiffs appeal the denial of attorney’s fees. We vacate the judgment entered against PNI and dismiss the Plaintiffs’ appeal.

Although the facts giving rise to this case are relatively simple and not disputed, the case has a lengthy history. In May, 1985, the Plaintiffs, all residents of Pennsylvania, were injured in a motor vehicle accident. At the time of the accident, the Plaintiffs were passengers in a vehicle owned and operated by William Jarrett. Jarrett’s vehicle was registered and insured in his home state of North Carolina. The Plaintiffs initiated suit to recover for their injuries. PNI settled with the Plaintiffs individually their third-party claims for bodily injury. However, PNI denied all claims for medical expenses and wage loss. In doing so, PNI asserted that such coverage was neither provided by the policy, nor required under North Carolina law with which the policy was written to comply.

In the wake of PNFs denial, the Plaintiffs brought suit against PNI pursuant to the provisions of the MVFRL. The Plaintiffs also named Travelers Insurance Company (“Travelers”), the designated carrier for the Assigned Claims Plan, as defendant. The Plaintiffs asserted, alternatively, that if PNI was not liable for the payment of first-party benefits, Travelers would be liable under the Assigned Claims Plan. A panel of arbitrators in the Court of Common Pleas found against PNI for the full amount of the Plaintiffs’ claims. After PNI appealed, all parties sought summary judgment. Ultimately, the court granted summary judgment in favor of the Plaintiffs and against PNI; Travelers’ motion was also granted. PNI and the Plaintiffs appealed the corrected order. This Court quashed both appeals after finding them to be interlocutory in nature. Jarrett v. Pennsylvania National Mutual Ins. Co., 385 Pa.Super. 661, 555 A.2d 253 (1988). Thereafter, the case proceeded to a non-jury trial on March 21, 1989 before the Honorable Alfred J. DiBona. The court’s verdict was announced on May 3, 1989. PNI filed its post-trial motion seeking judgment n.o.v. or, in the alternative, a new trial, on May 12, 1989. The Plaintiffs did not file a post-trial motion. PNI’s motion was denied on August 8,1989, and these appeals follow.

APPEAL OF PNI NO. 02337 Philadelphia 1989

PNI argues that the MVFRL does not require vehicles not registered in Pennsylvania, such as Jarrett’s, to conform to its scheme of first-party benefits. The MVFRL required insurers to provide certain minimum levels of coverage, including $10,000 in medical benefits. 75 Pa.C. S.A. § 1711. However, “[t]he requirement of coverage for medical benefits, according to the terms of the statute, is applicable only to motor vehicles ‘registered and operated in this Commonwealth.’ ” Boone v. Stonewall Ins. Co., 382 Pa.Super. 104, 107, 554 A.2d 968, 969 (1989), citing Pugh v. Government Employees Ins. Co., 380 Pa.Super. 606, 552 A.2d 708 (1989). Additionally, the panel in Boone noted that “review of the statute discloses no provision which requires that a vehicle registered outside the Commonwealth of Pennsylvania carry insurance providing first party[sic] medical benefits[;] [s]uch coverage is required only for vehicles ‘registered’ in Pennsylvania.” Boone, 382 Pa.Superior Ct. at 108, 554 A.2d at 970. (Emphasis supplied.) There is no dispute that Jarrett’s vehicle was registered outside the Commonwealth. Thus, PNI was not required to provide first-party benefits under the express terms of the MVFRL.

This does not, however, end our inquiry because PNI may have contracted to provide more than that which was required of it. We have carefully examined the insurance contract in question. Critical to our review is the following “all states” endorsement:

OUT OF STATE COVERAGE
If an auto accident to which this policy applies occurs in any state or province other than the one in which your covered auto is principally garaged, we will interpret your policy for that accident as follows:
If the state or province has ...
2. A compulsory insurance or similar law requiring a non-resident to maintain insurance whenever the nonresident uses a vehicle in that state or province your policy will provide at least the required minimum amounts and types of coverage.

(Emphasis supplied.)

PNI first maintains the clause was not triggered because the MVFRL is not a “compulsory insurance” law. While we agree with this statement, PNI overlooks the fact that the effectiveness of the clause was nevertheless triggered because the MVFRL is clearly a “similar law requiring a non-resident to maintain insurance”. Owners of automobiles registered outside the Commonwealth were required to show proof of financial responsibility. 75 Pa.C.S.A. § 1782(b). This requirement was satisfied with proof of liability coverage in the minimum amounts required of the vehicles registered In Pennsylvania. Boone, supra. Thus, the clause was operational and PNI is obligated to provide the coverage specified therein.

However, we do not read the clause as providing for any coverage other than that which the MVFRL requires of vehicles registered outside the Commonwealth. The language of the clause is clearly limited to providing only that level of coverage required by the situs state (Pennsylvania) of non-resident owners (Jarrett). “Section 1782(b)(2) requires only that non-resident owners of vehicles registered outside of Pennsylvania give proof of financial responsibility in the form of liability coverage in the minimum amounts required by section 1702 for vehicles registered in Pennsylvania.” Boone, 882 Pa.Superior Ct. at 108, §54 A.2d at 970. (Emphasis supplied.)

Our conclusion is supported by the fact that the clause is located in the liability portion of the insurance contract. The location of the clause is a relevant consideration in interpreting its meaning. See, Sanchez Estate v. Colonial Penn Ins. Co., 367 Pa.Super. 198, 532 A.2d 857 (1987). We view the clause in question as being restricted to providing the minimum mandatory liability coverage only. The expansive reading which the Plaintiffs urge upon us “would be, in effect, to rewrite the insurance contract by inserting a new provision extending coverage beyond that allowed by the express terms of the policy. This we cannot do.” Id., 367 Pa.Superior Ct. at 205-06, 532 A.2d at 861.

We conclude, therefore, that the court erred in finding PNI liable for first-party benefits. The judgment entered is vacated.

APPEAL OF PLAINTIFFS No. 02516 Philadelphia 1989

As previously discussed, the Plaintiffs have appealed the trial court’s denial of attorney’s fees. In light of our resolution of PNI’s appeal regarding its liability to the Plaintiffs, the instant appeal is moot. Additionally, because the Plaintiffs failed to raise the issue presented in their appeal in a post-trial motion, we would find the issue was not properly preserved for review.

Accordingly, the appeal is dismissed.

The judgment is vacated. The appeal at No. 2516 Philadelphia is dismissed as moot.

OLSZEWSKI, J., files a concurring and dissenting opinion.

OLSZEWSKI, Judge,

concurring and dissenting:

I concur in so much of the majority’s opinion that affirms the portion of the trial court’s order denying the Plaintiffs’ counsel fees. I also concur in that portion of the majority opinion which holds that the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. §§ 1701-1798 (amended) (hereinafter MVFRL), is a “similar law” requiring a nonresident to maintain vehicular insurance. I cannot join in the reversal of the portion of the trial court’s order awarding Plaintiffs damages against PNI.

The majority holds that Boone v. Stonewall Insurance Co., 382 Pa.Super. 104, 554 A.2d 968 (1989), controls the outcome of this case. I find Boone distinguishable and must dissent.

The policy of insurance in question, while issued under North Carolina law, contained the following clause:

OUT OF STATE COVERAGE
If an auto accident to which this policy applies occurs in any state or province other than the one in which your covered auto is principally garaged, we will interpret your policy for that accident as follows:
If the state or province has: ...
2. A compulsory insurance or similar law requiring a nonresident to maintain insurance whenever the nonresident uses a vehicle in that state or province, your policy will provide at least the required minimum amounts and types of coverage.

(Emphasis in original.)

Although Boone makes no mention of an “All States” endorsement, the majority holds that Boone stands for the proposition that such an endorsement only obligates PNI to provide minimal liability coverage. This renders the endorsement meaningless. Even without the endorsement, PNI is required to provide the minimal liability coverage by MVFRL. Boone, supra, 382 Pa.Superior Ct. at 108, 554 A.2d at 970.

It is axiomatic that an insurance policy must be construed so as to give effect to all of its provisions. Newman v. Massachusetts Bonding & Insurance Co., 361 Pa. 587, 592-93, 65 A.2d 417, 419 (1949). It is also well established as basic public policy that a policy be construed in favor of coverage. Techalloy Co. v. Reliance Insurance Co., 338 Pa.Super. 1, 5-7, 487 A.2d 820, 823 (1984). I would hold that PNI has, by its North Carolina contract with Jarrett, obligated itself to provide the types of coverage which are mandated by Pennsylvania law for Pennsylvania insurance policies if Jarrett was involved in an accident in Pennsylvania. First-party benefits are such a type of coverage required by MVFRL. 75 Pa.C.S.A. § 1711. I would affirm the trial court decision requiring PNI to do no more than it has undertaken by contract.

I respectfully dissent.

      . Initially, the court granted only Travelers’ motion. This prompted both PNI and the Plaintiffs to file appeals to this Court. The Plaintiffs also sought reconsideration by the trial court to clarify an apparent inconsistency between the court’s order and the accompanying opinion. Reconsideration was granted and the court issued a new, corrected order resulting in this ultimate disposition.

      . The panel also found that the trial court’s granting reconsideration rendered its first order a nullity.

      . The court issued an order wherein it declared that “judgment" was entered in favor of the Plaintiffs as against PNI and specified damages at $21,555.50 in medical expenses and $9,484.20 in interest. As previously discussed, the court denied the Plaintiffs’ request for attorney’s fees. The better course to follow would have been for the court to identify its "order” as its verdict and without a declaration that "judgment” was entered. See, Falcione v. Cornell School District, 383 Pa.Super. 623, 628, n. 3, 557 A.2d 425, 427, n. 3 (1989). It is apparent that both parties, as well as the trial court itself, considered the court’s "judgment” to be its "verdict". We will do likewise.

      . The Plaintiffs’ brief is in violation of Pa.R.App.P. 2116 and would, therefore, also be subject to being quashed by this Court.

      . I note in passing that PNI originally agreed with Plaintiffs that if the MVFRL was a similar law requiring insurance, PNI was liable for the first-party benefits at issue here. PNI based its denial of coverage on its belief that MVFRL was not a similar law as contemplated by the "All States" endorsement. "Both sides agree that first party benefits are payable if the above paragraph 2 is applicable." (Trial court opinion by Judge Lehrer, January 19, 1988, at 2). I find it unnecessary to examine the propriety of PNI’s apparent change of position in midstream as I believe the endorsement at issue (the above referred to paragraph 2) mandates that PNI provide the first party benefits.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    584 A.2d 331
    William S. MORRIS, Appellee, v. Attia SMITH & All Occupants, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1990.
    Filed Dec. 28, 1990.

      Andrea B. Paul, Philadelphia, for appellants.
    Charles D. Mandracchia, Norristown, for appellee.
    Before McEWEN, MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

Plaintiff-appellee, William J. Morris, brought this landlord-tenant action in Philadelphia Municipal Court and obtained a judgment against defendants-appellants, Attia Smith and her children, for $6800.00 in rent, plus possession of the premises. Appellant appealed to the Philadelphia Court of Common Pleas. After the complaint, answer and counterclaim, and plaintiffs reply to new matter were filed, plaintiff filed a motion to quash defendants’ appeal to the court of common pleas. The trial court sustained the motion to quash defendants’ appeal on the basis that the defendants had failed to pay rent into an escrow account, as required by Philadelphia Civil Rule 311(C)(2). The court ordered defendants to vacate the premises within 30 days and granted that an “alias writ of possession may be issued forthwith.” Order of March 23, 1990. Appellants appeal from the order quashing their appeal. We hold that the trial court erred in quashing the appeal, and instead should have affirmed the judgment of the municipal court. We remand this case for entry of an order affirming the judgment.

Philadelphia Civil Rule 311(C)(2) states:

Rule 311. Municipal Court Appeals—Supersedeas and Jury Trials
(C)(2) If the appellant is the tenant in a landlord/tenant action, the appeal shall operate as a supersedeas when the appellant files with the Administrator of the Municipal Court a copy of the Notice of Appeal attested by the Prothonotary so long as rent is paid each month on the date specified in the lease agreement with one of the following: the Prothonotary’s Office, the Urban League, a bank insured by F.D.I.C. or a savings association insured by F.S.L.LC. and P.S.A.I.C., until final disposition of the appeal.

Appellants maintain that this rule does not apply in this case because they are claiming equitable ownership of the property in dispute and therefore no landlord-tenant relationship exists between appellants and appellee. We disagree. After a hearing, the municipal court ruled against appellants, finding that they were tenants and owed rent. For purposes of an appeal, then, appellants are subject to Rule 311(c)(2). If we were to adopt appellants’ argument, then any tenant could avoid the provisions of the Rule simply by pleading an equitable ownership interest in the property. Under Rule 311(C)(2), tenant-appellants must pay their rent into an escrow account while their appeal is pending. Should the tenants’ claim of equitable ownership succeed, the escrow account funds will be returned to them.

Although we find that appellant was required under Rule 311(C)(2) to establish an escrow account, we must conclude that the trial court erred in sustaining appellee’s motion to quash the appeal. According to our reading of the Rule, in those cases in which the tenant fails to pay rent into an escrow account, the appeal no longer operates a supersedeas, and the order of the municipal court is immediately effective. We disagree with appellee’s position that a tenant who fails to comply with Rule 311(C)(2) also forfeits his or her right to maintain an appeal, as nothing in Rule 311(C)(2) indicates that the appeal to the court of common pleas is conditioned on payment of the rent into an escrow account. Although appellants failed to establish an escrow account, they still have a right to appeal from the entry of judgment by the municipal court, as provided in Philadelphia Civil Rule 310(B):

... a party may appeal for a trial de novo to the Court of Common Pleas from the entry of judgment by the Municipal Court in the manner prescribed by Philadelphia Civil Rules 311 and 312.

Philadelphia Civil Rule 310(B).

Philadelphia Civil Rule 312 provides that once the parties have filed their pleadings, the case should proceed in accordance with the Pennsylvania Rules of Civil Procedure. Under the particular facts of this case, we find that rather than quash appellants’ appeal to the court of common pleas, the trial court should have affirmed the judgment in favor of appellee on the basis of the pleadings, as appellee is entitled to judgment as a matter of law. The pleadings were before the court when the court of common pleas decided the motion to quash. A review of the pleadings shows that in response to appellee’s complaint which sought eviction of appellants and payment of the unpaid rent, appellants counterclaimed for specific performance of an alleged oral contract for the sale of the home by appellee to appellant Attia Smith and her deceased husband, appellee’s stepson. With regard to the oral contract, appellant counterclaimed the following:

♦ * * * * *

11. William Morris purchased 726 E. Chelten Avenue, Philadelphia, Pa. 19144 for Lawrence Smith and his wife Attia Smith.
12. William Morris arranged for the property price to be repaid by Lawrence and Attia and told them that in seven years his loan would be repaid and that he would then sign the house over to them.
13. Lawrence and Attia made numerous repairs on the house and treated it as their own.
14. William J. Morris began to give various excuses for not transferring the house to defendant but when defendant reported the house to the Department of Licenses & Inspection out of desperation and uncertainty because Moms would not sign it over, he filed a landlord tenant eviction action.
15. On or about June 11, 1980, plaintiff and defendant entered into a contract for the sale of the said premises by [William Morris] to [Attia Smith] for the sum of $7,650.00. The terms of said contract were not reduced to writing, but they were certain, distinct, free from ambiguity, were clearly stated by both defendant and the plaintiff, and were distinctly agreed to by both.
16. [Attia Smith] from the day and year last aforesaid, has always been and now is anxious, ready and willing to comply with all details to complete the transfer and has asked [William Morris] to make the transfer to her.
17. [William Morris] has wholly failed to keep or to perform his part of Ms said contract. [William Morris] has accepted said money, but then has refused to transfer the deed, because his stepson died.
18. By reason of the foregoing, the said parol contract has been so far executed by defendant and the plaintiff that the refusal of the [William Morris] to complete the same is inequitable and a fraud upon [Attia Smith].

R.R. at 11-12.

Appellant Attia Smith’s sole defense is that she is the equitable owner of the property. Ms. Smith does not contest that she has resided in the house since 1980; nor does she dispute that should the court find that she is not the equitable owner, appellee is the fee simple owner to whom she owes rent.

Upon reviewing the pleadings, we find that, as matter of law, appellee is entitled to judgment in his favor, as appellants have failed to plead an enforceable contract sufficient to remove this case from the Statute of Frauds requirement that an agreement for sale of real property be in writing and signed by the parties. See 33 P.S. § 1.

Our case law is very explicit as to the requirements which must be met to take an oral contract for real estate out of the statute. The terms of the contract must be shown by full, complete, and satisfactory proof. The evidence must define boundaries and indicate the quantity of the land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract, and, at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it has been exclusive, continuous and maintained. And it must show performance or part performance by the vendee which could not be compensated in damages, and such as would make rescission inequitable and unjust.

Kurland v. Stolker, 516 Pa. 587, 592, 533 A.2d 1370, 1373 (1987) (citations omitted). Appellant has not alleged with sufficient specificity the necessary elements to establish a cause of action for specific performance of the alleged oral agreement. Allegations in support of an oral contract must be clear and specific, Snaith v. Snaith, 282 Pa.Super. 450, 422 A.2d 1379 (1980), particularly where the contract is one that would ordinarily be subject to the Statute of Frauds.

Although the counterclaim contains allegations as to the date of the contract and the amount of consideration, appellant has failed to allege that the change of possession was notorious and exclusive or that possession was taken in pursuance of the contract. Importantly, the counterclaim contains no allegation that appellant’s performance in the form of the monthly payments is not compensable in monetary damages. Nor are there any allegations in the counterclaim as to the specific nature of the improvements, or that the repairs are permanent and noncompensable in damages. We therefore conclude that appellant has failed to set forth sufficient allegations to take the contract out of the Statute of Frauds.

For the foregoing reasons, we hold that the trial court erred in quashing the appeal. We reverse and remand for entry of an order affirming the judgment of the Municipal Court.

Reversed and remanded. Jurisdiction is relinquished.

      . This appears to be a mistake, as the municipal court complaint requests $2800.00 in unpaid rent.


author: FORD ELLIOTT, Judge:

text:
    584 A.2d 334
    COMMONWEALTH of Pennsylvania, Appellant, v. William Thomas HILTON.
    Superior Court of Pennsylvania.
    Submitted June 4, 1990.
    Filed Dec. 28, 1990.
    Petition for Allowance of Appeal Denied May 30, 1991.

      Andrea F. McKenna, Deputy Atty. Gen., Harrisburg, for Com., appellant.
    David O’Hanesian, Pittsburgh, for appellee.
    Before FORD ELLIOTT, HOFFMAN and HESTER, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the January 16, 1990, Order of the Court of Common Pleas of Crawford County, granting appellee’s motion nunc pro tunc quashing the information and vacating appellee’s judgment of sentence and conviction. The issue which the Commonwealth raises on appeal is “Whether The [PCHA] Court Erred In Finding Trial Counsel Ineffective For Failing To File A Motion To Quash The Information?” For the reasons set forth below, we reverse the grant of the motion to quash and reinstate the Judgement of Sentence.

Following a jury trial, appellee, William Thomas Hilton, was convicted of arson, 18 Pa.C.S. § 3301; fraud in collecting insurance claims, 40 Pa.S. § 474(b); conspiracy to commit arson, 18 Pa.C.S. § 903; and conspiracy to commit fraud in collecting insurance claims, 18 Pa.C.S. § 903. Post trial motions were filed on May 31, 1985. Said motions were denied by the trial court on January 27, 1986. On January 31,1986, appellee was sentenced to a term of three to ten years imprisonment on the arson conviction with a concurrent sentence of one to three years on the conviction of criminal conspiracy to commit arson. Appellee also received a concurrent sentence of one to twelve months on the conviction of fraud in collecting insurance claims. Appellee appealed to this court and his judgment of sentence was affirmed on April 13, 1987, Commonwealth v. Hilton, 366 Pa.Super. 638, 526 A.2d 1233 (1987). On September 30, 1987, appellee, through new counsel filed a petition seeking post-conviction relief wherein he alleged that the Attorney General had no authority to prosecute him and that trial counsel had been ineffective in failing to file a motion to quash the information. An evidentiary hearing was held on February 2, 1988, and on February 6, 1989, the trial court granted appellee leave to file nunc pro tunc a motion to quash the information signed by the Attorney General. The court further ordered that if the motion were granted, charges against appellee would be dismissed and the time served credited toward remaining consecutive sentences. The Commonwealth appealed from this order on March 6, 1989. However, this court quashed the appeal as premature in an order dated May 16, 1989.

Upon review of the record, we find that thé appeal filed by the Commonwealth on March 6, 1989, was not only timely, but was the proper vehicle to pursue an appeal on the issue of ineffective assistance of counsel. Further in the interests of the proper administration of justice, we find this quashal to be without prejudice and therefore we will consider the issue raised by the Commonwealth in the instant appeal—that being whether the PCHA court erred in finding trial counsel ineffective for failing to file a motion to quash the information.

Before evaluating the Commonwealth’s claims, it is necessary to provide some background information. The PCHA court recounted the factual history of this case in the following manner:

[Appellee], along with others, was involved in a far-flung motor vehicle theft ring which was investigated by the Attorney General with the help of an investigating grand jury. Many people were charged in that investigation with the theft of commercial motor vehicles and distribution of them extending through most of Western Pennsylvania, and well beyond the borders of Pennsylvania as far as Georgia. The ringleader in the auto theft matter was one Ronald Arnold and the investigation was generally known as the “Arnold” investigation. On August 24, 1984, the Assistant District Attorney of Crawford County wrote to William Conley, the Assistant Attorney General then handling that investigation, saying in pertinent part:
“This letter will confirm the substance of our two telephone conferences held during the week of August 20th. You called initially to inquire as to whether our office had any objections to the Attorney General’s Office prosecuting any and all cases arising from the investigation of Ron Arnold, d/b/a Atlas Sand and Gravel and the various criminal activities Mr. Arnold engaged in. John Dawson [the district attorney] had advised you and I certainly concur that our office would have no objections to your prosecuting all of the individuals connected with the Arnold investigation and the information and leads obtained by you from that investigation.
We have discussed this particular investigation at some length and believe that it would be in the best interests of the Commonwealth in having the Attorney General’s office prosecute these cases. We feel this way primarily because of the fact that the investigation involves several counties in Pennsylvania as well as several states. It appears to us that a centralized prosecution by your office would result in a more effective effort.”
This letter is somewhat ambiguous as to what is covered. It does not appear to be a request by the district attorney, but rather an acquiescence in the request of the Attorney General to be permitted to prosecute cases arising out of .the Arnold investigation. It does not define precisely what the parties meant by the Arnold investigation. It would appear, however, from the testimony of John Spa-taro, the Assistant District Attorney who wrote the letter, (see N.T. 6), and of John Dawson, the District Attorney, (see N.T. 19-22), at the PCHA hearing that both of them really had in mind the motor vehicle theft ring whose tentacles obviously spread far beyond Crawford County. The defendant in those cases subsequently pled guilty to a number of counts relating to the auto theft investigation, and was also sentenced on those charges. Those sentences have not been attacked in this PCHA proceeding.
This arson case was uncovered as a result of the car theft investigation, and some of the same people who were involved in the car theft were co-conspirators in this case. This could be considered a spinoff but really was tried as an isolated arson case unrelated to the major investigation. Arnold himself had decided to cooperate with the authorities and did, in fact, testify in many of the prosecutions.

Trial court opinion, 2/6/89 at 3-5.

With these facts in mind, the PCHA court held that “the district attorney’s office in Crawford County had ample resources to have prosecuted this arson case once the facts had been developed.” The PCHA court, therefore, concluded that “trial counsel was ineffective in failing to at least make an effort to quash the information in accordance with Carsia \infra\”

In evaluating an ineffectiveness claim, we emphasize that a presumption exists that counsel is acting effectively. Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989). To establish a claim, the defendant has the burden of proving that the issue, argument or tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit, and if so, that the particular course chosen by counsel had no reasonable basis designed to effectuate the client’s interests. Additionally, it must be demonstrated by the defendant how the ineffectiveness was prejudicial. Id.

In making assertions of ineffectiveness, we also require that an offer of proof be made alleging sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This is so because we frown upon considering claims of ineffectiveness in a vacuum. Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 504, 505 (1989).

In light of the standard articulated above, the first step of our analysis will involve the question of whether there is merit to appellee’s claim that counsel was ineffective for failing to file a motion to quash the information signed by the Attorney General. In support of his claim that counsel was ineffective, appellee relies primarily upon the case of Commonwealth v. Carsia, 341 Pa.Super. 232, 491 A.2d 237,(1985), aff'd 512 Pa. 509, 517 A.2d 956 (1986), which was an en banc decision of this court. As noted by the PGHA court, the Carsia opinion was filed several weeks before trial occurred in the instant case. Counsel for appellee was therefore on notice as to its holding. In Carsia, this court held that the Attorney General can only investigate and prosecute criminal actions within the confines of the Commonwealth Attorney’s Act. 71 P.S. § 732-101 et seq. Therefore, we must determine whether there is merit to the claim that the instant prosecution was not authorized by the Commonwealth Attorney’s Act.

We note at the outset that the Commonwealth claims that the decision in Carsia had no apparent applicability to appellee such that trial counsel could be found ineffective for failing to seek its application. The Commonwealth points to 71 P.S. § 732-205(a)(3), to support its claim that the Attorney General was authorized to prosecute the criminal charges involved herein. This section of the Commonwealth Attorney’s Act states:

The Attorney General shall have the power to prosecute in any county criminal court the following cases:
(3) Upon the request of a district attorney who lacks the resources to conduct an adequate investigation or the prosecution of a criminal case or matter or who represents that there is the potential for an actual or apparent conflict of interest on the part of the district attorney or his office.

71 P.S. § 732-205(a)(3). The Commonwealth claims that the Attorney General sought and obtained leave from the Office of the District Attorney of Crawford County to prosecute the case. However, we agree with the finding of the PCHA court that the letter written on August 24, 1984, by the assistant district attorney of Crawford County was little more than an afterthought. We also agree with the PCHA court’s finding that the district attorney’s office in Crawford County had ample resources to have prosecuted this arson case. Therefore, we concur with the PCHA court’s conclusion that there was no basis under the Commonwealth Attorney’s Act for the Attorney General to sign the information charging appellee with arson, insurance fraud and related claims of conspiracy such charges being unrelated to the on-going “Arnold” investigation. Accordingly, we agree with the PCHA court that appellee would have been granted relief if a motion to quash the information had been filed at time of trial. Further, we conclude that counsel’s failure to pursue such a strategy appears to have had no reasonable basis designed to effectuate the interests of appellee.

However, in evaluating claims of ineffective assistance of counsel, our supreme court has determined there must be both a performance and a prejudice review. “[A] defendant who claims that his counsel’s performance was ineffective or had no reasonable basis has not brought the ineffectiveness inquiry to an end. [Defendant] must additionally demonstrate that he was prejudiced by the ineffectiveness.” Commonwealth v. Pierce, 515 Pa. 153, 160, 527 A.2d 973, 976 (1987). Prejudice in the context of a claim of ineffective assistance of counsel is determined by an evaluation of whether “but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.” Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987).

Appellee in his brief argues that “a defendant who has been improperly prosecuted by the Attorney General’s Office under the Attorney’s Act does not have to show prejudice.” In support of this assertion, appellee cites Commonwealth v. Khorey, 521 Pa. 1, 555 A.2d 100 (1989). In Khorey, our supreme court consolidated two unrelated appeals involving individuals who were charged by informations signed by the Attorney General. The portion of the Khorey opinion to which appellee refers, involves the Commonwealth’s appeal from an order of this court vacating the judgment of sentence against defendant/appellee Frank Trputec. Said sentence was imposed after a jury convicted Trputec of criminal solicitation and criminal conspiracy. The trial court had denied Trputec’s pre-trial motion challenging the authority of the Attorney General to conduct the prosecution under the Commonwealth Attorney’s Act. This court reversed and granted a new trial, holding that the circumstances surrounding the request that the Attorney General handle the prosecution did not satisfy the requirements of the Commonwealth Attorney’s Act. Our supreme court affirmed this decision and stated the following:

The Commonwealth finally argues that even if the attorney general was without authority to conduct the prosecution, that error did not contribute to the verdict and, consequently, the granting of a new trial was an inappropriate remedy. Essentially, the Commonwealth argues that a defendant who was improperly prosecuted by the attorney general under the Attorney’s Act must show prejudice. To adopt such a requirement would require interlocutory appeals from the Courts of Common Pleas after a denial of a motion to quash an information, for a defendant’s objections to the information would otherwise escape appellate review. (Citations omitted).

521 Pa. at 20-21, 555 A.2d at 110.

We find appellee’s reliance on Khorey to be misplaced. The lack of prejudice advanced by the Commonwealth in Khorey is that which must be established in asserting trial error. The supreme court recognized that since the defendant’s counsel had properly sought to quash the information pre-trial, and was denied relief, the only remedial measure available on appeal to vindicate the violation of the right involved was to grant a new trial. Unlike the prejudice involved in trial error, the prejudice with which we are concerned is that which must be established within the context of ineffectiveness of counsel Commonwealth v. Pierce, supra; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, to be entitled to relief, a petitioner must establish that the alleged error was so substantial as to have directly effected the determination of his guilt in the matter. Instantly, had counsel properly filed a motion to quash the information, and had relief been granted, appellee would have been entitled to have the information refiled by the district attorney. The same evidence would have been admissible at trial and it may be significant that appellee was originally convicted on the basis of legally intercepted wire communications. Without more, appellee is not entitled on PCHA to invalidate an otherwise valid conviction on the basis of remedial relief for a pre-trial error.

The Post Conviction Hearing Act was not meant to provide relief for any and all pre-trial and trial errors. Rather, the purpose of the act is to insure that defendants are not convicted and serving sentences in violation of due process and other fundamental rights. 42 Pa.C.S. § 9542 (Purdon 1982) (repealed 1988). We find it instructive herein that in Commonwealth v. Khorey, in describing the nature of the right involved, the court stated that “[t]he right asserted by Khorey is the right not to be prosecuted by the Attorney General. The right is limited to just that. It does not encompass the right not to be haled into court by any state agency.” 521 Pa. at 11, 555 A.2d at 105. (Emphasis in original).

In the alternative, appellee argues that “to the extent that a showing of prejudice is required to be made out ... then his conviction is the prejudice. We will never know what would have happened before a different jury and different prosecutors.” The standard of prejudice which must be met herein requires more. In other words; appellee has not shown what would have been different had the district attorney, rather than the Attorney General tried this case.

In the absence of appellee’s showing of any prejudice, we find that the PCHA court erred in granting appellee relief and we vacate the order quashing the information and reinstate appellee’s Judgment of Sentence.

Order reversed, Conviction and Judgement of Sentence reinstated.

      . Appellee also cites Commonwealth v. Goodman, 347 Pa.Super. 403, 500 A.2d 1117 (1985) and Commonwealth v. Trputec, 363 Pa.Super. 239, 525 A.2d 808 (1987) aff'd sum nom. Commonwealth v. Khorey, 521 Pa. 1, 555 A.2d 100 (1989) in support of his contention that there is merit to his claim that trial counsel was ineffective for failing to file a Motion to Quash the Information. Appellee notes in his brief that Goodman was “argued on July 23, 1984 (after the trial in the instant case), and decided on September 27, 1985 (well before post trial motions were argued and decided against appellee Hilton). Goodman also dealt with a challenge to the Attorney General’s jurisdiction.” We find Goodman to be less on point than Carsia since Goodman is concerned primarily with the scope of the Attorney General’s authority to investigate, rather than prosecute, criminal offenses.
      Finally, it should be mentioned that Trputec was decided by this court on May 11, 1987 and appellee’s judgment of sentence was affirmed on April 13, 1987 which was almost a full month earlier than that decision. For this reason, we agree with the Commonwealth that counsel was not ineffective for failing to anticipate Trputec.

      . Procedurally, it is significant that counsel for Trputec raised the issue of whether the Attorney General’s office lacked authority to prosecute the case in a pre-trial motion and was denied relief thereon. However, if the information had been properly quashed, the only relief to which Trputec would have been entitled would have been to have the charges refiled by the district attorney.

      . It should be noted that had the supreme court determined that a violation of the Commonwealth Attorney’s Act was so egregious as to permeate an entire prosecution then jeopardy principles would have applied. Rather, the court exercised its discretion to provide the remedial measure of a new trial to redress the error involved.


author: KELLY, Judge:

text:
    584 A.2d 340
    Victor John CHOPLOSKY, Appellant, v. Dianne CHOPLOSKY, Appellee.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1990.
    Filed Dec. 28, 1990.

      David Serchak, Tunkhannock, for appellant.
    Judd B. Fitze, Dist. Atty., Tunkhannock, for Com., appellee.
    Before OLSZEWSKI, KELLY and BROSKY, JJ.
   KELLY, Judge:

In this appeal, we are called upon to determine whether a trial court may act to permanently modify a custody order without having before it a formal petition to modify filed by one of the parties. We find that it cannot and vacate.

The relevant facts and procedural history of this case may be summarized as follows. On April 11, 1984, Mr. and Mrs. Choplosky were divorced. Pursuant to the divorce, the parties agreed by a provision incorporated into the divorce decree to share both legal and physical custody of their three children.

Subsequently, the court entered an order directing Victor Choplosky to pay child support. This order was later modified to require Victor Choplosky to provide medical coverage for the children and to divide equally all un-reimbursed medical expenses with Dianne Choplosky.

On April 30, 1990, Victor Choplosky petitioned the court to issue a rule to show cause why Dianne Choplosky should not be held in contempt of court, alleging violations of the custody agreement by failing to seek and receive his assent before having two of the children treated by a physician in non-emergency situations. A rule to show cause was thereafter issued upon Dianne Choplosky and on May 9, 1990, the court held a hearing on the contempt petition. Substantial argument from both parties was entertained, and at the conclusion of the contempt hearing, the court entered an order modifying the custody agreement of 1984 so as to grant Dianne Choplosky sole legal custody of the parties’ minor children. Victor Choplosky files this appeal.

On appeal, Victor Choplosky contends that the trial court deprived Mm of his right to due process of law by modifying a custody order in the absence of a written petition by one of the parties requesting the court to do so. We agree.

Our legislature has granted trial courts the authority to modify existing custody orders. See 23 Pa.C.S.A. § 5310. Until 1988, however, courts could not do so unless there was a sufficient showing of a change in circumstances. See Constant A v. Paul C.A., 344 Pa.Super. 49, 496 A.2d 1 (1985); Agati v. Agati, 342 Pa.Super. 132, 492 A.2d 427 (1985). In that year, our Supreme Court definitively ruled that such a showing is no longer required. Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988); see also Hutchinson v. Hutchinson, 379 Pa.Super. 247, 549 A.2d 999 (1988). Thus, the paramount and sole pertinent consideration in discerning the continuing validity of a custody order is, as in all such determinations regarding children, the best interests of the children involved. Karis v. Karis, supra. Whether and under what circumstances courts may undertake such deliberation, is the question presently before us.

In Steele v. Steele, 876 Pa.Super. 174, 545 A.2d 376 (1988), this Court was faced with a similar question of whether, under the guise of the resolution of a contempt petition, the trial court may alter the visitation rights of the parties. There we stated:

[T]he appropriate manner to bring about a change in a custody/visitation Order is by petition for modification, which would follow, generally the procedure under Pa.R. C.P. 1915.3, Commencement of Action. However, this does not prevent the trial court, under appropriate circumstances to alter a custody/visitation Order when it is in the best interest of the child to do so. Recognizing that circumstances may change abruptly, and to provide for a means to bring about emergency relief that is traditionally available under the writ of habeas corpus, the Rules of Civil Procedure provide for special relief as follows:
Rule 1915.13. Special Relief
At any time after commencement of the action, the court may on application or its own motion grant appropriate interim or special relief. The relief may include but is not limited to the award of temporary custody, partial custody or visitation; the issuance of appropriate process directing that a child or a party or person having physical custody of a child be brought before the court; and a direction that a person post security to appear with the child when directed by the court or to comply with any order of the court.
Thus, while the court could not act to modify the visitation Order permanently without a petition to modify, the trial court properly recognized he had the authority to suspend the visitation Order because of the violent and irrational tendencies of the appellant and to protect the child during visitation by having visits supervised by CYS.

Steele v. Steele, supra, 376 Pa.Superior Ct. at 179, 545 A.2d at 378 (emphasis added). This temporal distinction was later found controlling by another panel of this Court in Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988), where an order of the trial court which modified visitation rights at the conclusion of a contempt hearing was vacated due to the permanent nature of the modification. In further clarifying its decision to do so, the Seger Court explained:

In Karis v. Karis, [518] Pa. [601], 544 A.2d 1328 (1988), the Supreme Court eliminated the requirement that a petition for modification of an existing court Order must allege a substantial change of circumstance. The requirement established by the Supreme Court is that the petition must simply allege it is in the best interest of the child to warrant review. The requirement that a petition for modification be filed in order for the court to review the case for permanent modification of a custody Order, and to enter a final Order, remains intact.

Seger, 547 A.2d at 426 n. 1 (emphasis added).

It is well settled, therefore, that without a motion to modify visitation rights before it, a trial court may not permanently alter the visitation rights of parties. Dicta from these cases would suggest that the same rule be applied where the trial court permanently modifies custodial rights before a petition for modification is filed. Neither party has cited, nor has our research disclosed, any holdings which are directly relevant to the question of whether a court may modify custodial rights, essentially sua sponte. We find, however, as we discern no material distinction between permanently modifying visitation and permanently modifying legal custodial rights, the logic underlying the dicta in the visitation cases persuasive herein.

Notice, in our adversarial process, ensures that each party is provided adequate opportunity to prepare and thereafter properly advocate its position, ultimately exposing all relevant factors from which the finder of fact may make an informed judgment. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, rehearing denied, 409 U.S. 902, 93 S.Ct. 177, 34 L.Ed.2d 165 (1972). To relax or in anyway disregard the notice requirement, is to undermine the intrinsic pursuit of our system of justice: to provide a crucible for testing the truth of accusations. Cf. Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593, 600 (1975) (“The very premise of our adversary system is that partisan advocacy of both sides of a case will best promote the ultimate objective that the guilty are convicted and the innocent go free.”). Thus, while it is generally true that to promote the best interests of the child efforts seeking to modify custody orders may be entertained at any time, see Martin v. Martin, 386 Pa.Super. 328, 562 A.2d 1389 (1989), courts may not allow parties to forego general notice requirements which must otherwise be strictly observed.

We find, therefore, that the trial court’s decision to permanently modify the custody order following argument in a contempt proceeding was error. Neither party was on notice that the custody order, upon which the contempt proceedings were predicated, was itself to be at issue until the “contempt” proceedings were well underway. The degree to which the parties were allowed to freely argue facts regarding the appropriate custody of the children is inconsequential. However unabated or erudite the advocacy, absent adequate notice or opportunity to prepare, neither we nor the trial court can assume that the parties have either sufficiently exposed the relevant facts or properly argued their significance. Consequently neither we nor the trial court can make an informed, yet quintessentially crucial judgment as to whether it was in the best interests of the children involved to give sole legal custody to their mother.

Had the trial court decided, and had the circumstances required that the custody of the children be only temporarily modified pursuant to Pa.R.C.P. 1915.13, our decision might have been different. Such “special relief” may in some cases be appropriate (and necessary) where the situation is such that, for example, temporary modification of custody or visitation rights would preserve the well-being of the children involved while the parties prepare to resolve more permanently the question of where and/or with whom the children should remain.

In conclusion, we hold that because the trial court chose to permanently modify Victor Choplosky’s custodial rights without having before it a petition to modify the custody agreement, the trial court erringly deprived Victor Choplosky of his right to due notice of the proceedings. Accordingly, we vacate the trial court Order of May 9, 1990, and reinstate the prior agreement of custody incorporated into the April 11, 1984 divorce decree until a new order is entered consistent with this memorandum.

Order vacated. Jurisdiction relinquished.

      . We note, that if any distinction may be found, it is that such custodial rights are more significant and encompassing than the visitation rights, and thus, where as here the custody of the children is at issue, due process rights should be guarded even more closely.

      . See also Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 481, 522 A.2d 1129, 1133 (1987) (“It is the antithesis of due process to bring someone before a court to defend himself on one basis if the court then reaches its decision on a different basis. It is also unfair to reach a final decision after a preliminary proceeding. A litigant may not prepare as completely as he would had he realized that he was not going to receive a second chance to present his case.’’); Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 469, 487 A.2d 1372, 1377 (1985) ("Notice, the most basic requirement of due process, must he reasonably calculated to inform interested parties of the pending action, and the information necessary to provide an opportunity to present objections.’ ’’) (quoting Pennsylvania Coal Mining Association v. Insurance Department, 471 Pa. 437, 452-53, 370 A.2d 685, 692-93 (1977)); Mellon v. Travelers Ins. Co., 267 Pa.Super. 191, 197, 406 A.2d 759, 762 (1979) (“Notice and the opportunity to be heard are essential elements of a fair hearing____ Litigants require not simply notice that a hearing is to occur, but also notice of the issues to be litigated.”); Com., Dept. of Health v. Brownsville Golden Age Nursing Home, Inc., 103 Pa.Cmwlth. 449, 456, 520 A.2d 926, 930 (1987) ("[A] right to due process means a right to know how the proceedings shall be conducted, in addition to knowing when the proceedings shall be conducted.").


author: CERCOME, Judge.

text:
    584 A.2d 343
    COMMONWEALTH of Pennsylvania v. Dwayne LOOP, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1990.
    Filed Dec. 21, 1990.

      Norris E. Gelman, Philadelphia, for appellant.
    Donna G. Zueker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before McEWEN, DEL SOLE and CERCONE, JJ.
   CERCOME, Judge.

This is an appeal nunc pro tunc from the judgment of sentence of the Court of Common Pleas of Philadelphia County, in which appellant was convicted after a non-jury trial of two counts of aggravated assault and possession of an instrument of crime. Appellant’s post-trial motions were denied and he was sentenced to concurrent terms of five to ten years incarceration on the aggravated assault charges. The lower court’s sentence on the conviction of possessing an instrument of crime was a determination of guilt without further penalty. There was no appeal of the judgment of sentence, but appellant filed a petition for post-conviction relief, in which he requested the right to file a direct appeal nunc pro tunc. The lower court granted the petition and the instant appeal followed.

The case arose out of an incident on July 8,1987, in which at approximately 5:00 p.m., several persons were gathered in front of a housing project on a Philadelphia street when appellant and another man drove up in a car. Some words were exchanged and appellant and his companion drove off and returned in fifteen minutes, circled the block several times and then started shooting with a black handgun. About five shots were fired which wounded one person in the group on the street and a three and a half year old boy playing nearby. Appellant was positively identified by photographic array prior to trial and also was identified in court as the triggerman. At the time of the crime, appellant had no adult criminal record although he did have a history of juvenile offenses. A photograph from appellant’s juvenile file was used in the photographic array connected with appellant’s prosecution in the instant case. Appellant’s request to suppress the identifications made on the basis of his juvenile record photograph was denied.

Appellant raises the following issues on appeal:

I. Should this court fashion a suppression remedy from a violation of 42 Pa.C.S.A. section 6308 which precludes improper use of a juvenile’s arrest photograph?
II. Should trial counsel have asked that the trial court recuse itself after it heard of appellant’s full juvenile record during the suppression hearing in view of the fact that trial counsel knew he would be calling several character witnesses in appellant’s defense at trial?

In reviewing the ruling of a suppression court, we must determine whether the factual findings of the court are supported by the record and consider only the evidence of the prosecution and so much of the evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111, cert. den. 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985). “Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.” Id., 507 Pa. at 532, 491 A.2d at 112.

In the instant case, appellant does not challenge the suppression court's factual findings but only the legal conclusion of the lower court that the use of appellant’s juvenile photograph in his pre-trial identification does not require suppression of the identification. We find no error in the lower court’s determination.

As appellant’s statement of the questions presented indicates, appellant is asking the court to fashion a suppression remedy which would be based upon an alleged violation of 42 Pa.C.S.A. § 6308 by the use of appellant’s juvenile photograph in his pre-trial identification. Section 6308, which appellant relies upon in its entirety, provides:

§ 6808. Law enforcement records
(a) General rule. Except as provided in section 6309 (relating to juvenile history record information), the law enforcement records and files concerning a child shall be kept separate from the records and files of arrests of adults. Unless a charge of delinquency is transferred for criminal prosecution under section 6355 (relating to transfer to criminal proceedings), the interest of national security requires, or the court otherwise orders in the interest of the child, the records and files shall not be open to public inspection or their contents disclosed to the public except as provided in subsection (b); but inspection of the records and files is permitted by:
(1) The court having the child before it in any proceeding.
(2) Counsel for a party to the proceeding.
(3) The officers of institutions or agencies to whom the child is committed.
(4) Law enforcement officers of other jurisdictions when necessary for the discharge of their official duties.
(5) A court in which the child is convicted of a criminal offense for the purpose of a presentence report or other dispositional proceeding, or by officials of penal institutions and other penal facilities to which he is committed, or by a parole board in considering his parole or discharge or in exercising supervision over him.
(b) Public availability.
(1) The contents of law enforcement records and files concerning a child shall not be disclosed to the public except if the child is 14 or more years of age at the time of the alleged conduct and if any of the following apply:
(i) The child has been adjudicated delinquent by a court as a result of an act or acts which include the elements of rape, kidnapping, murder, robbery, arson, burglary, violation of section 13(a)(8) of the act of April 14, 1972 (P.L. 238, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, [35 P.S. § 780-113(a)(30) ] or other act involving the use of or threat of serious bodily harm.
(ii) A petition alleging delinquency has been filed by a law enforcement agency alleging that the child has committed an act or acts which include the elements of rape, kidnapping, murder, robbery, arson, burglary, violation of section 13(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act, or other act involving the use of or threat of serious bodily harm and the child previously has been adjudicated delinquent by a court as a result of an act or acts which included the elements of one of such crimes.
(iii) The child is a dangerous juvenile offender.
(2) If the conduct of the child meets the requirements for disclosure as set forth in paragraph (1), then the court or law enforcement agency, as the case may be, shall disclose the name, age and address of the child, the offenses charged and the disposition of the case. The master or judge who adjudicates a child delinquent shall specify the particular offenses and counts thereof which the child is found to have committed and such information shall be inserted on any law enforcement records or files disclosed to the public as provided for in this section.
(c) Fingerprints and photographs.
(1) Law enforcement officers shall have the authority to take or cause to be taken the fingerprints or photographs, or both, of any child who is alleged to have committed a delinquent act that, but for the application of this chapter, would constitute a felony or a violation of 18 Pa.C.S. Ch. 61 ,Subch. A (relating to uniform firearms act).
(2) Fingerprint and photographic records may be disseminated to law enforcement officers of other jurisdictions, the Pennsylvania State Police and the Federal Bureau of Investigation if a child has, on the basis of a felony or a violation of 18 Pa.C.S. Ch. 61 Subch. A, been adjudicated delinquent or found guilty in a criminal proceeding.
(3) Fingerprints and photographic records of children shall be immediately destroyed by all persons and agencies having these records if the child is not adjudicated delinquent or not found guilty in a criminal proceeding for reason of the alleged acts.

While we find problematic appellant’s conclusion that there exists a violation of § 6308 in this case, we need not engage in an in-depth analysis of that legal issue because neither this court nor the lower court has the constitutional power to fashion such a suppression remedy under the facts of this case.

In Commonwealth v. Jones, 245 Pa.Super. 487, 369 A.2d 733 (1977) (en banc), it was held that neither this court nor a lower court has the power to fashion a suppression remedy where specific authority for such an order is not found in a rule of court or as a result of a constitutional violation. Id., 245 Pa.Superior Ct. at 493-96, 369 A.2d at 736-37. Such power, according to the Jones court, is lodged exclusively in the Pennsylvania Supreme Court, in the exercise of its “general and administrative authority over all courts____” Id., 245 Pa.Superior Ct. at 491, 369 A.2d at 735, citing Pa. Const., Art. 5, § 10. The statute in this case, § 6308, contains no authority for the suppression of evidence upon a violation of the terms of the statute. Nor has appellant alleged any type of constitutional impropriety in the use of his juvenile photograph. Under such circumstances, this court is without authority to order, or to require the lower court to order, the suppression of appellant’s pre-trial identification. See Commonwealth v. Jones, supra. Thus, we must reject appellant’s argument requesting that we fashion a suppression remedy from an alleged violation of section 6308.

Appellant’s second contention on appeal is that trial counsel was ineffective for failing to request that the lower court recuse itself from presiding at appellant’s non-jury trial after the court had heard testimony concerning appellant’s juvenile record during the suppression hearing. Appellant contends that counsel should have assumed that the lower court’s knowledge of appellant’s juvenile offenses would have an adverse impact on the defense at trial which contained as an element the testimony of several character witnesses.

Claims of ineffectiveness of counsel are subject to a three part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The defendant has the burden of establishing a claim of ineffectiveness. Commonwealth v. Chin, 373 Pa.Super. 163, 540 A.2d 573 (1988). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Silo, 509 Pa. 406, 502 A.2d 173 (1985).

We find no merit to appellant’s underlying claim, that the lower court’s hearing of the testimony concerning appellant’s juvenile record had an adverse impact upon the lower court’s ability to hear appellant’s trial testimony concerning his reputation as a peaceful and law-abiding citizen, thus requiring a defense motion for the judge’s recusal. First, it is well-established that a judge, sitting as fact-finder, is capable of setting aside from his consideration improperly admitted evidence. Commonwealth v. Batty, 482 Pa. 173, 393 A.2d 435 (1978); Commonwealth v. Gallagher, 341 Pa.Super. 152, 491 A.2d 196 (1985). By analogy, a judge sitting as fact-finder in a non-jury trial is, by any reasonable standard, capable of removing from his consideration testimony heard at a pre-trial hearing but not part of the case at trial.

In addition, the crimes with which appellant was involved as a juvenile involve traits of character which were not at issue in the present prosecution. The record establishes that appellant’s juvenile offenses included burglary, theft, robbery, and conspiracy. With the exception of robbery which involves an element of violence, these crimes are essentially crimes of crimen falsi, and would thus implicate appellant’s tendency towards honesty and veracity as character traits. In contrast, the crimes at issue in the instant case constitute crimes of violence. Thus, appellant introduced evidence at trial concerning his reputation in the community for peacefulness. It is well established that evidence of good character must be limited to the defendant’s general reputation for the particular trait or traits of character involved in the commission of the crime charged. Commonwealth v. Luther, 317 Pa.Super. 41, 463 A.2d 1073 (1983). Such evidence must also relate to a period of time at or about the time the offense was committed. Id., 317 Pa.Superior Ct. at 50, 463 A.2d at 1077-78.

Given that the testimony at the suppression hearing concerned crimes committed at a different time from the crimes in the instant case, and involved character traits substantially different from those associated with the crimes herein, appellant’s argument concerning the adverse effect of the judge’s knowledge of appellant’s juvenile record is unpersuasive. Considering also the principle that a fact-finding judge is capable of disregarding improper evidence, we can find no merit to the underlying claim regarding trial counsel’s ineffectiveness, as the evidence of the prior crimes was not admitted at trial and could thus have played no part in the lower court’s decision. Without an underlying claim of arguable merit, a claim of ineffectiveness must fail. Accordingly, we reject appellant's second claim on appeal.

Judgment of sentence affirmed on appeal from order of January 12, 1989 permitting nunc pro tunc direct appeal.


author: HUDOCK, Judge:

text:
    584 A.2d 347
    COMMONWEALTH of Pennsylvania, Appellee, v. Daniel Webster HOGANS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 7, 1990.
    Filed Dec. 21, 1990.

      Russell Montgomery, Altoona, for appellant.
    David Gorman, Asst. Dist. Atty., Hollidaysburg, for Com., appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from a judgment of sentence imposed upon Appellant, Daniel Webster Hogans (hereinafter “Appellant”), for two counts of Driving Under the Influence of Alcohol, 75 Pa.C.S.A. 3731. Appellant was convicted following a non-jury trial. A motion for new trial and in arrest of judgment was denied. We affirm.

On January 28, 1989, Patrolmen Russell Wesley II and Officer Christopher Cohn responded to a report of an accident on a three-lane expressway. Upon arriving at the scene of the incident they found Appellant standing beside his overturned vehicle. Appellant indicated that he was the driver of the vehicle. The officers observed Appellant’s demeanor and decided to administer field sobriety tests. They concluded, as did the court, that Appellant was the driver of the vehicle, and that he was under the influence of alcohol.

Appellant, who claims the existence of a reasonable doubt, challenges the sufficiency of evidence upon which his conviction was based. The essence of his position is found in the observation that:

The Commonwealth’s case here was based on the circumstantial evidence that Daniel Webster Hogans was found at the scene of the accident and his admission to the arresting officers that he was the driver of the vehicle. No witness observed Daniel Webster Hogans driving the vehicle. In fact, two witnesses testified that Daniel Webster Hogans was not the driver.
Appellant’s Brief, at p. 7.

Accordingly, we must address the issue of evidence sufficiency. When considering this claim in the criminal context we view all of the evidence in the light most favorable to the Commonwealth, Commonwealth v. Grayson, 379 Pa.Super. 55, 549 A.2d 593 (1988), and all reasonable inferences are then drawn in the same light. Id.

It appears from the record that the most compelling evidence in Appellant’s favor came from two witnesses who saw Appellant being driven as a passenger in the vehicle in question. It is hornbook law, however, that the court, as the finder of fact, was entitled to weigh the credibility of this testimony. Moreover, as pointed out by the Commonwealth, this evidence dealt with who was driving the vehicle in question some one-half hour before the time of mishap, and not at the actual time that the incident for which Appellant was convicted of occurred. As such, it follows that, when viewed in the light most favorable to the Commonwealth, the evidence in toto—the testimony of the aforementioned two witnesses notwithstanding—is indeed sufficient enough upon which to base a conviction.

Appellant next contends that the court erred in allowing the police officers to testify regarding his admission. He claims that the corpus delicti of the crime must be established before a defendant’s admission is introduced. Appellant opines that the evidence is equally consistent with lack of criminality, as well as with criminality, and concludes that no corpus delicti has been established apart from the admission, and that its introduction, as such, was erroneous.

We first note that Appellant advances a correct statement of Pennsylvania law. As articulated in the capsule summary of Pennsylvania authority found in Packel & Poulin, Pennsylvania Evidence (1987), § 424 Corpus Delicti, pp. 280-281:

The Pennsylvania courts have long applied the rule that “a criminal conviction may not be based on the extra-judicial confession or admission of the defendant unless it is corroborated by independent evidence establishing the corpus delicti”. “Corpus delicti” means “body of the crime.” The corpus delicti consists of the occurrence of a loss or injury, and some person’s criminal conduct as the source of that loss or injury. Courts have stated that “[pjroof that the accused was the perpetrator of the crime is not required.” ... The crucial determination in applying the corpus delicti rule is whether, at the close of the case, the proof of the corpus delicti was sufficient to permit the fact finder to consider defendant’s admission or confession. [Citations omitted].

More specifically, two elements combine to establish the corpus delicti of driving under the influence. They are: (1) someone must be in control of a vehicle, and (2) that same person must be under the influence of alcohol at the time. 75 Pa.C.S.A. § 8781. As noted above, the second of these two elements was established by virtue of field sobriety tests, as well as a blood alcohol test, agreed to by Appellant. As such, our focus turns to control of the vehicle. We conclude that the Commonwealth presented ample evidence with regard to this element in order to have allowed the fact-finder to consider Appellant’s admission. As articulated above, the facts reveal the following: The police were summoned to investigate the report of an accident. Upon their arrival, they found Appellant standing beside his vehicle. The vehicle was on its side. There were two other vehicles in the vicinity with people in them, as well as other individuals milling about in the area.

It is axiomatic that circumstantial evidence alone may be used to prove the corpus delicti. Commonwealth v. Herman, 288 Pa.Super. 219, 431 A.2d 1016 (1981). It follows that the above facts adequately establish Appellant’s control of the vehicle for purposes of satisfying the corpus delicti rule of evidence. “In establishing the corpus delicti, the Commonwealth does not have to prove beyond a reasonable doubt that a crime was committed. The Commonwealth must only prove beyond a reasonable doubt that the injury or loss is consistent with a crime having been committed.” 27 Stand.Pa.Prac.2d, § 135:112. We hold that the facts of the instant appeal are consistent with the commission of the offense charged, and that the corpus delicti has been thereby established, thus permitting admission of Appellant’s inculpatory statement.

The judgment of sentence is affirmed.

      . Appellant was sentenced to pay the costs of prosecution, paying the Commonwealth $350.00 for use of the county, incarceration for not less than 2 days and no more than 18 months, and subsequent parole subject to certain conditions.

      . Appellant also agreed to a blood alcohol test, which was administered at a nearby hospital. The content of alcohol in his blood was determined to be .266%. Appellant stipulated to the admission of these test results.

      . In addition to this evidence, also before the court was the testimony of two witnesses who stated that they had seen Appellant enter the vehicle with another person—who was the driver—approximately one-half hour before the accident.

      . Appellant relies upon Commonwealth v. Wilson, 225 Pa.Super. 513, 312 A.2d 430 (1973), a case "virtually identical to the case at bar ...” Appellant’s Brief, at p. 7. Wilson is a plurality opinion where four of seven judges agreed that the evidence adduced at trial was sufficient to establish defendant’s guilt. Judge Spaeth joined the grant of a new trial only because he believed the admission by defendant that he was driving the vehicle was made after an illegal arrest. Wilson is not, therefore, any support for this Appellant’s insufficiency claim.

      . Upon the arrival of the officers, Appellant identified himself as the driver of the vehicle.

      . We also cite with approval the well-written and instructive lower court discussion found in Commonwealth v. Leo, 36 Cumberland IJ 225 (1985).

      . The Commonwealth asserts that: “At [the officers’] eventual arrival at the scene of the accident the defendant was standing beside his vehicle with the vehicle on its side. There was no one eke around the vehicle at the time ..." [emphasis added] Commonwealth Brief, at p. 5. This is somewhat contradicted by the testimony of Patrolman Russell Wesley II:
      There were two other vehicles that were there with people in them, Mr. Hogans’s son and I’m not sure if it was his wife or not were there, myself, Officer Cohn and Officer Liepold arrived, and there were other people there also walking and milling around. [Trial Transcript, p. 8].
      Patrolman Cohn testified that:
      There was one person standing in the immediate vicinity of the area [emphasis added], and there were several other parties on the 18th Street off ramp near the second vehicle. [Trial transcript, p. 19].

      . As noted in Packel & Poulin, Pennsylvania Evidence (1987), § 424 Corpus Delicti, p. 280: “The corpus delicti rule is ‘rooted in a hesitancy to convict one of crime on the basis of his own statements only.’ ” [Citation omitted].


author: WIEAND, Judge:

text:
    584 A.2d 357
    Frieda KAUFER and Irvin Kaufer and Carolyn Kaufer, His Wife, d/b/a Kaufer Brothers, a partnership, Appellants, v. John BECCARIS, Appellee.
    Superior Court of Pennsylvania.
    Argued June 12, 1990.
    Filed Jan. 4, 1991.

      Robert Gawlas, Wilkes-Barre, for appellants.
    Cynthia R. Vullo, Wilkes-Barre, for appellee.
    Before WIEAND, DEL SOLE and MONTEMURO, JJ.
   WIEAND, Judge:

John Beccaris has conducted a retail shoe business since 1946 on lots Nos. 1 to 5 South Main Street, Plains, Luzerne County, and has owned the real estate since 1956. On adjoining land at Nos. 7 to 11 Main Street, a retail hardware business, known as Kaufer Brothers, has been conducted since 1929. These lots were purchased in 1953 by Simon and Frieda Kaufer, husband and wife; and Frieda Kaufer, following her husband’s death, continues to be record owner of the land. The hardware business has been conducted by her son, Irvin, and his wife, Carolyn, since 1954 pursuant to a lease of the store premises. The testimony by Irvin Kaufer was that as long as he could remember, since at least 1940, trucks of all sizes have used the rear of the Becarris property for the purpose of making deliveries from Carey Avenue to the rear of the Kaufer store. The instant action was brought to enjoin interference with the continued use of a prescriptive easement for the purpose of making such deliveries. The trial court found that the use of the servient tenement had been open, notorious, continuous and uninterrupted for more than twenty-one years but concluded that it had not been adverse and hostile. Therefore, the court denied the requested relief. The Kaufers appealed. They contend the trial court’s refusal to grant relief was the result of an error of law.

This court’s right of review, of course, is limited. In Purdy v. Zaver, 398 Pa.Super. 190, 580 A.2d 1127 (1990), the Court said:

“Appellate review of equity matters is limited to a determination of whether the chancellor committed an error of law or abused his discretion. The scope of review of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious.” Hostetter v. Hoover, 378 Pa.Super. 1, 6-7, 547 A.2d 1247, 1250 (1988), allocatur denied, 523 Pa. 642, 565 A.2d 1167 (1989), quoting Rosen v. Rittenhouse Towers, 334 Pa.Super 124, 129, 482 A.2d 1113, 1116 (1984) (citations omitted). The test employed is not whether the appellate court would have reached the same result as the trial judge, who heard and saw the evidence, but whether a judicial mind, on due consideration of the evidence, could reasonably have reached the conclusion of the trial judge. See: Yuhas v. Schmidt, 434 Pa. 447, 454, 258 A.2d 616, 619-620 (1969); Masciantonio Will, 392 Pa. 362, 367, 141 A.2d 362, 365 (1958). See also: 16 Std.Pa. Prac.2d § 91:155.

Id., 398 Pa.Superior Ct. at 196-197, 580 A.2d at 1130-31. See also: Waltimyer v. Smith, 383 Pa.Super. 291, 556 A.2d 912 (1989); Walley v. Iraca, 360 Pa.Super. 436, 520 A.2d 886 (1987).

To establish an easement by prescription, the party asserting the right must show use that is adverse, open, notorious, continuous, and uninterrupted for a period of twenty-one (21) years. Keefer v. Jones, 467 Pa. 544, 359 A.2d 735 (1976); Waltimyer v. Smith, supra; Burkett v. Smyder, 369 Pa.Super. 519, 535 A.2d 671 (1988); Walley v. Iraca, supra. Cf. Estojak v. Mazsa, 522 Pa. 353, 562 A.2d 271 (1989). These elements must be proven by clear and positive evidence. Farmers’ Northern Market Co. v. Gallagher, 392 Pa. 221, 139 A.2d 908 (1958); Pittsburgh & Lake Erie R. Co. v. Township of Stowe, 374 Pa. 54, 96 A.2d 892 (1953); Burkett v. Smyder, supra; Walley v. Iraca, supra; Adshead v. Sprung, 248 Pa.Super. 253, 375 A.2d 83 (1977).

The trial court determined that the Kaufers’ use of the easement had been open and continuous and had spanned a period of more than twenty-one (21) years. Since both Kaufer and Beccaris agree that Kaufer’s use of the easement was open, continuous, and uninterrupted, the evidence supports this finding, and it is unnecessary to discuss this aspect further. The trial court concluded, however, that the Kaufers had failed to sustain their burden of proving an easement by prescription because they failed to establish that their use was adverse to the rights of Beccaris. Instead, the court concluded that the Kaufers’ use was by indulgence on the part of Beccaris and, therefore, consensual. This was legally incorrect and requires that we reverse.

There is no evidence that Kaufer ever requested or received permission from Beccaris to use Beccaris’s land for the purpose of making deliveries to the rear of Kaufer’s store. Kaufer testified that inasmuch as he had always received deliveries in this manner he believed he had an easement across his neighbor’s land. Beccaris testified that he did not give Kaufer express permission to cross his land but believed that his failure to object was the same as granting permission.

Proof of an open, notorious, continuous and uninterrupted use for the prescriptive period, without evidence to explain how it began, raises a presumption that it is adverse and under claim of right. See: Loudenslager v. Mosteller, 453 Pa. 115, 307 A.2d 286 (1973); Margoline v. Holefelder, 420 Pa. 544, 218 A.2d 227 (1966); Shinn v. Rosenberger, 347 Pa. 504, 32 A.2d 747 (1943); Plitt v. Cox, 43 Pa. 486 (1863); Pierce v. Cloud, 42 Pa. 102 (1862); Steel v. Yocum, 189 Pa.Super. 522, 151 A.2d 815 (1959); 12A P.L.E. Easements, § 61 (1985). Once this presumption is raised, the burden shifts to the owner of the servient tenement to show by affirmative proof that the use was by virtue of some license, indulgence, permission or agreement inconsistent with a claim of right by the other party. See: Walley v. Iraca, supra. Thus, in Loudenslager v. Mosteller, supra, the Supreme Court said:

“[Wjhere one uses an easement whenever he sees fit, without asking leave, and without objection, it is adverse, and an uninterrupted adverse enjoyment for twenty-one years is a title which cannot be afterwards disputed. Such enjoyment, without evidence to explain how it began, is presumed to have been in pursuance of a full and unqualified grant. The owner of the land has the burden of proving that the use of the easement was under some license, indulgence, or special contract inconsistent with a claim of right by the other party.”

Id., 453 Pa. at 117, 307 A.2d at 287, quoting Garrett v. Jackson, 20 Pa. 331, 335-36 (1853). See also: Stiegelman v. Pennsylvania Yacht Club, Inc., 432 Pa. 111, 246 A.2d 116 (1968); Wampler v. Shenk, 404 Pa. 395, 172 A.2d 313 (1961); Mather-Klock, Inc. v. Plymire, 349 Pa. 194, 36 A.2d 802 (1944); Pierce v. Cloud, supra; Adshead v. Sprung, supra; DiVirgilio v. Ettore, 188 Pa.Super. 526, 149 A.2d 153 (1959); Klavon v. Tindall, 180 Pa.Super. 408, 119 A.2d 554 (1956); Brown v. McConnell, 173 Pa.Super. 94, 93 A.2d 896 (1953); Russel v. Woodbury, 53 Pa.Super. 618 (1913); Godino v. Kane, 26 Pa.Super. 596 (1904); 12A P.L.E. Easements § 22 (1985).

Although it is clear that permissive use will not support an easement by prescription, it is equally clear that “[ajbsence of objection by the owner to use of the land is not equivalent to a grant of permission by him such as will preclude the acquisition of title to an easement by prescriptive use.” 12A P.L.E. Easements § 23 (1985). See: Orth v. Werkheiser, 305 Pa.Super. 576, 451 A.2d 1026 (1982) (owner’s assumption that use was permissive absent permission having been communicated to user was no permission at all); Tarrity v. Pittston Area School Dist., 16 Pa.Cmwlth. 371, 328 A.2d 205 (1974) (absence of objection is not permission that will preclude acquisition of title to easement by reason of continuous and uninterrupted use for twenty-one years), final decree entered, 18 Pa.Cmwlth. 175, 335 A.2d 839 (1975). The owner of the servient tenement will not be permitted to sit back and silently watch as an open use continues and then, at the end of the prescriptive period, assert that it was permissive because he did not object. See: Orth v. Werkheiser, supra.

In the instant case, the Kaufers did not request and Beccaris did not grant permission to use the rear of his land, on which a parking lot was located, for purposes of achieving access to the rear of Kaufers’ building. Beccaris merely failed to voice objection to the use of his land by trucks and others making deliveries to Kaufers’ store. In Beccaris’s view, “if I didn’t stop [Kaufer], that indicates I give [Kaufer] permission.” Unfortunately for Beccaris, the law is otherwise. Mere silence in the face of open, continuous and uninterrupted use by the owner of the dominant tenement is insufficient to change the adverse nature of such use to a permissive use.

By the year 1978, when Beccaris constructed an addition to the rear of his building, the Kaufers’ prescriptive rights had already been perfected. The addition did not prevent access to the rear of the Kaufers’ store, but the delivery trucks merely crossed over a portion of the Beccaris lot further to the rear thereof. Between 1978 and 1982, trucks of all sizes continued to cross the Beccaris parking lot to make deliveries to Kaufer. It was only after the lot had been regraded to provide for improved drainage, that the larger trucks experienced difficulty and, on several occasions, damaged meters installed on Beccaris’s property by Pennsylvania Power & Light Company. These incidents caused Beccaris to post “No truck” signs, which, of course, led to the instant litigation.

The deviation from the original route after Beccaris had constructed his addition did not defeat the prescriptive easement claimed by appellants. This easement had vested before the addition was constructed; and thereafter, both parties appear to have agreed to the new route. Cf. Loudenslager v. Mosteller, supra (prescriptive right not invalidated because of deviations from original route where such changes made by agreement and in apparent recognition of rights of person claiming such rights).

Appellants’ prescriptive rights do not require that appellee’s building or any part thereof be demolished. At most, it may be necessary to relocate several meters belonging to the Pennsylvania Power & Light Company. When this is done, trucks will be able to gain free access to the rear of appellants’ store and there make necessary deliveries.

Reversed and remanded for the entry of an appropriate decree which preserves and protects the prescriptive rights of appellants to use appellee’s land to gain access to the rear of appellants’ store. Jurisdiction is not retained.

      . It was also contended that the easement was one of necessity, but our decision regarding the existence of an easement by prescription makes it unnecessary that we review the trial court’s rejection of this additional contention.


author: CAVANAUGH, Judge:

text:
    584 A.2d 953
    COMMONWEALTH of Pennsylvania, Appellee, v. James Ernest ODUM, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1990.
    Filed Nov. 2, 1990.
    Reargument Denied Jan. 15, 1991.

      David B. Miller, Scranton, for appellant.
    Nicholas J. Casenta, Jr., Asst. Dist. Atty., Downingtown, for Com.
    Before CAVANAUGH, WIEAND and HUDOCK, JJ.
   CAVANAUGH, Judge:

This is a direct appeal following a judgment of sentence entered following a conviction of murder in the first degree and aggravated assault. Trial was held before Gavin, J. and a jury, which convicted the defendant on both counts, and on February 15, 1990 the defendant was sentenced to life imprisonment.

The facts of this case are as follows. On or about December 9, 1989, the decedent-victim, an 84 year old woman, sustained serious and numerous blunt trauma injuries, for which she was hospitalized. The victim was transferred to two other hospitals from December, 1988 through May, 1989. She eventually was transferred to the Pocopson Home, where she passed away. The Commonwealth asserted that the victim’s death was set in motion by the injuries received on or about December 9, 1988, and the defendant-appellant, who was the nephew of the victim and resided with her in her home, was the perpetrator of these injuries. At trial, defendant’s counsel presented a Motion in limine designed to preclude the Commonwealth from presenting evidence of prior assaultive behavior. This motion was denied, and the Commonwealth was permitted to introduce this evidence to show malice, motive and intent. Cautionary instructions were given to the jury, which returned a guilty verdict at the close of trial, and the defendant received a life sentence. This appeal ensued.

Appellant raises one issue on appeal for our review. He contends that the trial court erred in denying his Motion in limine to suppress certain evidence, and then permitting the Commonwealth to present evidence of prior incidents of violence against the victim. For the reasons set forth hereafter, we affirm the judgment of sentence of the lower court.

We begin our analysis with the general standard of review. When reviewing evidentiary decisions of the lower court, the standard is well settled. “... [Admissibility of evidence is a matter addressed to the sound discretion of the trial court, and ... an appellate court may reverse only upon a showing that the trial court abused its discretion.” Commonwealth v. Claypool, 508 Pa. 198, 200, 495 A.2d 176, 178 (1985). Keeping this standard in mind, we now address appellant’s claim.

Specifically, appellant claims that the trial court erred in denying defendant’s Motion in limine because the four prior incidents were too remote in time to have any probative value or were not proven by substantive evidence. As such, appellant contends, since the admission of evidence relating to these incidents was highly prejudicial, the lack of probative value denied defendant his right to a fair trial.

The four incidents referred to in this appeal are as follows:

1. Attempted homicide against victim, August 1975. Defendant was sentenced to four to twenty-three months.
2. Attempted homicide against Pennsylvania State Trooper, responding to assault upon victim by defendant, July, 1978. Defendant was sentenced to two to four years.
3. Assault against victim by defendant, Spring 1985. No charges were filed.
4. Assault against victim by defendant some time in 1978 to 1988. No charges were filed.

We begin by addressing the remoteness claim. Appellant has contended in his brief that there is a “ten year gap” between some of the incidents {Brief for Appellant, at 13) and this lapse renders probative value negligible. Looking at the evidence in its proper context, our analysis requires a different outcome. While the time frame of all the incidents exceeds ten years, the incidents are spaced by far fewer. The first reported incident of physical abuse (defendant shot the victim in the face) was in 1975; three years later, a second one involving a physical attack on the victim by the defendant (defendant strangled his aunt until blood came out of her mouth); under seven years following that, a third assault by defendant upon victim; two years after that, a fourth alleged assault by defendant upon victim (defendant allegedly kicked the victim); then a year or two after that, the incident of physical abuse which led to the victim’s death (defendant again kicked the victim in the head and face). We refuse to consider the evidence entirely out of its sequential context, as appellant would require us to do. We also further note there were additional incidents which were not submitted to the jury, and that defendant was incarcerated at least some of the time between incidents. These factors would further act to reduce the time periods between incidents, as the involuntary separation removed the likelihood of any incidents occurring while defendant was in the custody of the Commonwealth.

The law on remoteness as bearing on evidentiary value in this type of situation has been stated clearly. Remoteness in time has been generally construed to be “... another factor to be considered in determining whether a prior incident ... [of abuse] tends to show that a second incident ... [of abuse] was an accident.” Commonwealth v. Dona hue, 519 Pa. 582, 544, 549 A.2d 121, 127-128 (1988). The court further went on to note that three years is not unduly remote. On the furthest extreme, the Supreme Court of Pennsylvania has gone back as far as seventeen years in allowing evidence in a domestic violence situation. A husband had brutally murdered his wife, and evidence of a beating administered seventeen years prior was properly admissible as evidence of ill will and malice tending to show criminal intent. Commonwealth v. Patskin, 372 Pa. 402, 413-414, 93 A.2d 704, 712 (1953). Thus, the remoteness issue fails. Clearly this evidence is admissible, and the fact finder could properly determine its weight.

Here, since defendant has. raised the defense that he never intended to harm the decedent, this evidence was properly admissible to show intent, malice or absence of accident as an exception to the rule that prior bad acts are inadmissible. Commonwealth v. Potts, 388 Pa.Super. 593, 606, 566 A.2d 287, 294 (1989). Additionally, since the relationship between the decedent and the defendant is of critical importance to the Commonwealth’s case and necessary to show intent, any prejudice suffered by the defendant in this instance was outweighed by the fact that the relations between the parties is “... an integral point of the evidence establishing the intent of the defendant.” Commonwealth v. Glass, 486 Pa. 334, 344, 405 A.2d 1236, 1241 (1979). Finally, as three separate, limiting and cautionary instructions were given to the jury, (N.T. 1/31/90, at 288-90, 297, 361-2), the prejudicial impact was minimized. Thus, we find that the trial court did not abuse its discretion in ruling that the probative value of this evidence, despite the argued remoteness, outweighed its prejudicial effect.

Appellant also claims that the more recent events, specifically those in 1985 and 1987 or 1988, were not proven by substantial evidence and as such, are inadmissible. We are unpersuaded by this argument.

Firstly, we note that Appellant has misstated the Commonwealth’s burden when he says in his brief that the Commonwealth bears the burden of showing by clear and convincing evidence that the event happened before prior bad acts can be admitted into evidence to show intent. The burden as articulated in Donahue, supra at 127 is one of substantial evidence.

Secondly, the trial transcripts provide ample foundation for admitting the two incidents. There is sufficient testimony, which, in light of the continuing relations and pattern of behavior between the defendant and the decedent, could be believed by the finder of fact and constitutes “substantial evidence”.

Regarding the 1985 incident, there is the eyewitness testimony of Cassandra Miller that she viewed the bruises on the victim’s arms, and that the defendant’s wife had rushed over to the grandmother’s house to tell her daughter that “he” was assaulting the victim. The trial judge ruled that this evidence of bruising, and the defendant’s wife’s statements were substantial and reliable evidence to show that the assault had occurred. It then was up to the jury to decide the credibility of this witness and the weight to give this evidence as to the identity of the perpetrator, and its showing malice, ill will, and absence of accident. We fail to see how admitting this evidence was an abuse of discretion on the trial judge’s part.

Regarding the incident which occurred in either 1987 or 1988, there is direct eyewitness testimony from the defendant’s half-sister Linda Worrell that she saw the defendant kick the victim. Again, the trial judge ruled that this was substantial evidence to show that the assault had occurred, and we again do not find it to be an abuse of discretion on the part of the trial judge to admit this into evidence, especially in light of the cautionary instruction given the jury before either of the last two incidents were submitted to them in testimony.

Finally, we note that on several other occasions involving, as is the case here, a pattern of domestic violence, the courts of this Commonwealth have held that evidence “... concerning the previous relations between a defendant and a homicide victim is relevant and admissible for the purposes of showing ill will, motive, or malice. Evidence of prior occurrences in which the accused threatened, assaulted, or quarrelled with the decedent may be admissible for this purpose.” Commonwealth v. Ulatoski, 472 Pa. 53, 60-61, 371 A.2d 186, 190 (1977). Defendant would have us limit this to a marital situation, but we do not see where this specific limitation has ever been imposed, and we decline to do so now.

Thus, the evidence of the four prior assaults was admissible, proven by substantial evidence, and its probative value outweighed any prejudicial effect upon the defendant. The trial court did not err in so ruling.

For the foregoing reasons, the judgment of sentence of the trial court is affirmed.

WIEAND, J., concurs in the result.

      . Appellant raises the remoteness issue again in regard to these two incidents. As we have already rejected this, we will not address it again.