author: WIEAND, Judge: KELLY, Judge,

text:
    611 A.2d 1294
    COMMONWEALTH of Pennsylvania v. Anthony GREEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 14, 1992.
    Filed July 6, 1992.

      John P. Cotter, Philadelphia, for appellant.
    Kathy Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

Anthony Green was tried by jury and was found guilty of aggravated assault in connection with the shooting of Anthony Gunter in Philadelphia on October 14, 1988. The same jury found him not guilty of possessing an instrument of crime. Post-verdict motions were denied, and Green was sentenced to serve a term of imprisonment for not less than five (5) years nor more than ten (10) years. On direct appeal, Green argues that the trial court erred when it allowed (1) evidence to be introduced of a “stale” robbery conviction and (2) improper jury argument by the prosecuting attorney which injected the number of annual homicides in Philadelphia and the motives for highway shootings in Los Angeles. Green also contends that the trial court erred when it applied the mandatory sentencing provisions of 42 Pa.C.S.A. § 9712 for aggravated assault after the jury had found him not guilty of possessing an instrument of crime.

The circumstances surrounding the shooting were as follows. On October 14, 1988, Anthony Gunter went to 2406 North Reese Street, Philadelphia, to pick up his daughter from Wanda Boyd, who was the girl’s mother and Gunter’s former girlfriend. An argument ensued between Gunter and Boyd, during which Boyd’s uncle, Anthony Green, appeared on the scene. The prosecution contended and attempted to prove that Green arrived with a gun in his possession and shot Gunter without provocation. The defense contended, however, that the gun had been in the possession of Gunter and had discharged accidentally during a struggle in which Green sought to defend himself against physical assault by Gunter. Although the testimony was in sharp dispute, the jury found Green guilty of aggravated assault.

The actual date on which appellant committed a prior robbery does not appear, but the record does establish that, on June 22, 1978, he was sentenced for robbery to serve a term of imprisonment for not less than one year nor more than two years. When appellant was tried for aggravated assault in February, 1991, the prior conviction was more than ten years old. Appellant contends that because of the lapse of time, this conviction was neither relevant nor material and should have been excluded by the trial court.

This issue, however, has not been preserved for appellate review. It was not raised in post-trial motions and is being argued for the first time on appeal. Only issues raised in post-trial motions are preserved for appellate review. Commonwealth v. Gravely, 486 Pa. 194, 198-199, 404 A.2d 1296, 1298 (1979); Commonwealth v. Heckman, 366 Pa.Super. 224, 227, 530 A.2d 1372, 1373 (1987). Because the issue was not preserved, we express no opinion regarding the trial court’s evidentiary ruling.

During the prosecuting attorney’s closing argument, the following argument was made and objections recorded:

And more on motive. The defense has argued what motive was there for him to shoot Mr. Gunter. Simply turned around, what motive was there for him to shoot the defendant? He is there to pick up his daughter, but first I am going to shoot the defendant. Ladies and gentlemen, last year in Philadelphia [sic] we had 525 homicides—
MR. COTTER: Objection, Judge. Objection. Could I see the Court at side bar?
MR. MARGIOTTI: Judge, I really extended him a lot of courtesy in his closing.
MR. COTTER: Judge, I want to see the Court at side bar on this particular issue, this is very important.
THE COURT: Howard, come on, please.
(Side bar discussion as follows:)
MR. COTTER: Judge, I would move for a mistrial. The issue this jury has to decide is not the state of the criminal activity in Philadelphia. The issue for this jury is to decide whether this man committed a crime.
THE COURT: I know. It is hyperbole, it is argument. And I don’t know what he is going to say about that.
MR. COTTER: Well, Judge, I don’t want to wait until what he is going to say. Now he is saying there is a lot of homicides.
MR. MARGIOTTI: But there is nothing wrong with what I am saying.
MR. COTTER: Yes, there is something wrong.
MR. MARGIOTTI: No, there isn’t.
MR. COTTER: You are bringing in the fact that something else or there are other crimes.
(Back in the courtroom as follows:)
MR. MARGIOTTI: As I said, ladies and gentlemen, there were 525 homicides in Philadelphia last year. How many of those have what we would call or consider, a good motive, a legitimate motive, a reason to shoot somebody? Ladies and gentlemen, in Los Angeles they are shooting people on the highway—
MR. COTTER: Objection. Judge, what does that have to do—
THE COURT: Well, it is argument. It is hyperbole, he is passionate. I will allow it.
MR. MARGIOTTI: Thank you. Your Honor, could I have his interruptions kept to the end? Maybe we can deal with them all at one time?
MR. COTTER: Judge, the Court knows that the Supreme Court says that I have to make the objection when it is stated. I have got to do that, Judge.
THE COURT: But not during a speech.
MR. MARGIOTTI: Thank you. Okay.
Ladies and gentlemen, as I said before I was interrupted again, in Los Angeles they are shooting people on the highway for cutting them off because the highways are too crowded. Motive is not a part of this crime. This is a crime of madness. The law — when the Judge reads you the law, he is going to say, intended to cause bodily injury with a deadly weapon or intended to cause serious bodily injury. But it doesn’t say you have to determine his motive. I can’t get into his head, you can’t get into his head why he did it. That is not for you to decide.

In reviewing the remarks of the prosecuting attorney, we have examined once again the words of the late Justice Roberts who, when writing for the Court in Commonwealth v. Cherry, 474 Pa. 295, 378 A.2d 800 (1977), reviewed the role of the prosecuting attorney as follows:

In advocating the cause for this Commonwealth, prosecutors are to seek justice, not only convictions. Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975); see ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function § 1.1 (Approved Draft, 1971) [hereinafter cited as ABA Standards]; Pennsylvania Supreme Court Code of Professional Responsibility EC 7-13 (1974). This obligation to seek justice includes the responsibility to assure that the defendant receives a fair and impartial trial. See Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976); Commonwealth v. Toth, 455 Pa. 154, 314 A.2d 275 (1974); ABA Standards § 1.1, commentary at 44.

This Court has established that the conduct of the prosecutor at closing argument is circumscribed by the concern for the right of a defendant to a fair and impartial trial. We have held that a prosecutor’s expression of personal opinion regarding a defendant’s guilt, credibility, or strategy is prejudicial and amounts to reversible error. We have also held that improper statements of the evidence and references to what the victim might have said are improper.

Moreover, our cases emphasize that the prosecutor must not seek to divert the jury from its duty to decide impartially the facts of the case before it. As Mr. Justice Nix has stated for this Court, “[t]he determination of guilt must not be the product of fear or vengeance but rather intellectually compelled after a disinterested, impartial and fair assessment of the testimony that has been presented.” Commonwealth v. Harvell, 458 Pa. 406, 411, 327 A.2d 27, 30 (1974). The jury must not be diverted by statements appealing to its emotions or which may lead the jury away from its responsibility to resolve the case on the basis of the facts presented. See Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974); Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974).

In defining impermissible conduct during closing argument, we have followed Section 5.8 of the ABA Standards. Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976); Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974). Section 5.8 provides:

“Argument to the jury.
(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.”

The policy underlying this section and our decisions which follow it is that limitations are needed to check the possibility that jurors will give undue weight to the arguments of the prosecutor. The commentary to Section 5.8 points out:

“As the culmination of his efforts in the case, the prosecutor’s argument is likely to have significant persuasive force with the jury. Accordingly, the scope of argument must be consistent with the evidence and marked by the fairness which should characterize all of the prosecutor’s conduct. Prosecutorial conduct in argument is a matter of special concern because of the possibility that the jury will give special weight to the prosecutor’s arguments, not only because of the prestige associated with his office, but also because of the fact-finding facilities presumably available to him. See DiCarlo v. United States, 6 F.2d 364 (1925); Note, 54 Colum.L.Rev. 946 (1954). ‘If the state has a strong case, it is not necessary, and if it has a close case, such misconduct is gross injustice to the defendant.’ State v. Cyty, 50 Nev. 256, 256 P. 793, 794 (1927). See also DiCarlo v. United States, supra; Cain, Sensational Prosecutions and Reversals, 7 Notre Dame Law. 1 (1931); Note, 6 Utah L.Rev. 108 (1958). Unfortunately, some prosecutors have permitted an excess of zeal for convition [sic] or a fancy for exaggerated rhetoric to carry them beyond the permissible limits of argument. See, e.g., Berger v. United States, 295 U.S. 78[, 55 S.Ct. 629, 79 L.Ed. 1314] (1935); People v. Talle, 111 Cal. App.2d 650, 245 P.2d 633 (1952); Rowe v. Commonwealth, 269 S.W.2d 247 (Ky.1954). Of course, a prosecutor must be free to present his arguments with logical force and vigor. ‘But, while he may strike hard blows, he is not at liberty to strike foul ones.’ Berger v. United States, 295 U.S. at 88[, 55 S.Ct. 629].”

Id., 474 Pa. at 301-303, 378 A.2d at 803-804. It has also been held repeatedly that it is improper for a prosecuting attorney to make reference to matters which are not in evidence or supported by inferences to be drawn from the evidence. See: Commonwealth v. Anderson, 490 Pa. 225, 229, 415 A.2d 887, 888 (1980); Commonwealth v. Sanders, 380 Pa.Super. 78, 98, 551 A.2d 239, 249 (1988); Commonwealth v. Howard, 375 Pa.Super. 43, 53, 543 A.2d 1169, 1174 (1988).

It is true that Commonwealth v. Cherry, supra, was decided fifteen years ago and that since that time the appellate courts have sent conflicting signals with respect to the nature and degree of prosecutorial misconduct which will be tolerated. More recently, the Superior Court suggested, in Commonwealth v. Jubilee, 403 Pa.Super. 589, 589 A.2d 1112 (1991), that the standard for reviewing prosecutor’s remarks is as follows:

“In reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made.” Commonwealth v. Williams, 346 Pa.Super. 456, 459, 499 A.2d 1089, 1091 (1985), overruled on other grounds; Commonwealth v. Hill, 523 Pa. 270, 566 A.2d 252 (1989). See also: Commonwealth v. Smith, 490 Pa. 380, 388, 416 A.2d 986, 989 (1980); Commonwealth v. Toledo, 365 Pa.Super. 224, 236, 529 A.2d 480, 486 (1987). “Generally, ‘comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdiet.’ ” Commonwealth v. Strong, 522 Pa. 445, 454, 563 A.2d 479, 483 (1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1536, 108 L.Ed.2d 775 (1990), quoting Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669, 673 (1974). See also: Commonwealth v. D'Amato, 514 Pa. 471, 490, 526 A.2d 300, 309 (1987); Commonwealth v. Carpenter, 511 Pa. 429, 439, 515 A.2d 531, 536 (1986). The initial determination whether the prosecutor’s remarks were unfairly prejudicial rests within the sound discretion of the trial court, and “our inquiry of necessity must turn to whether an abuse of discretion was committed.” Commonwealth v. Strong, supra, citing Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968). See also: Commonwealth v. D’Amato, supra at 491, 526 A.2d at 310; Commonwealth v. Ellis, 398 Pa.Super. 538, 560, 581 A.2d 595, 606 (1990) (en banc).

Id., 403 Pa.Superior Ct. at 593-594, 589 A.2d at 1114.

In any event, it is clear that remarks by the prosecuting attorney cannot be tolerated when the unavoidable effect is to deprive the defendant of a fair trial.

When we review the remarks of the prosecuting attorney in the instant case, it is immediately apparent that they were improper for several reasons. In the first place, they referred to facts which were not in evidence. There was no evidence whatsoever regarding the number of homicides in Philadelphia during the prior year or the reasons for shootings on the highways in or around Los Angeles. Indeed, if such evidence had been offered, the trial court would have had to exclude it, for it would have been wholly irrelevant to the case being tried.

Secondly and perhaps more importantly, the prosecutor’s remarks were unprofessional and improper because they injected “issues broader than the guilt or innocence of the accused under the controlling law” and were calculated to inflame the prejudices of the jury. The facts injected and references made by the prosecuting attorney had absolutely nothing to do with appellant’s guilt or innocence of the charges brought against him and could only cause prejudice to his defense by directing the jurors to the carnage resulting from senseless crimes committed by others in Philadelphia and Los Angeles.

Finally, the prosecuting attorney’s remarks were calculated to mislead the jury as to the relevant law. The defense had argued, quite properly, that the jury should consider the absence of any motive for appellant to approach Gunter and shoot him without provocation, as the Commonwealth had contended. For the prosecution to respond to this argument was understandable. It was highly improper, however, to tell the jurors that motive “is not for you to decide” because “there were 525 homicides in Philadelphia last year” without “what we would call or consider a good motive, a legitimate motive, a reason to shoot somebody.” The prosecutor’s response was not only a non sequitur but unprofessional and improper. Similarly, it was highly improper to tell the jury that motive was not to be considered because “in Los Angeles they are shooting people on the highways for cutting them off because the highways are too crowded.”

It was incorrect to tell the jurors that motive or the absence of motive was not for them to decide. Although motive was not an essential element of the Commonwealth’s case, the presence or absence of motive was relevant and could be considered by the jury in determining whether the Commonwealth’s evidence had proved guilt beyond a reasonable doubt. See: 10A P.L.E. Criminal Law § 401. See also: Commonwealth v. LaRosa, 283 Pa.Super. 264, 268, 423 A.2d 1247, 1249 (1980). For the prosecutor to misstate the law was perhaps pardonable, because it could be corrected by the court. When the prosecuting attorney went further, however, and attempted to obscure the significance of the presence or absence of motive by referring to the number of homicides in Philadelphia or the shootings in Los Angeles committed without good cause, he was guilty of egregious misconduct which could not readily be corrected. When the defense objected to these remarks, the trial court overruled the objection and thereby added its imprimatur to the prosecuting attorney’s improper argument. This was clear error.

The error was not harmless. Evidence of appellant’s guilt was not overwhelming. Instead, the evidence was in sharp conflict as to whether appellant had approached Anthony Gunter with gun drawn and shot him without provocation or whether Anthony Gunter had been shot with his own gun during a physical struggle after appellant had interceded to protect his niece. Because the case was close, the prosecuting attorney’s improper attempt to substitute exaggerated rhetoric for evidence carried him beyond the limits of permissible argument and deprived appellant of a fair and impartial determination of guilt or innocence according to the evidence. Such an error can only be corrected by a new trial.

Because a new trial is necessary, we do not now decide whether the court properly sentenced appellant as though he had visibly possessed a firearm after the jury found him not guilty of possessing an instrument of crime at the time of the alleged offense.

The judgment of sentence is reversed, and the case is remanded for a new trial. Jurisdiction is not retained.

KELLY, J., files a concurring statement.

KELLY, Judge,

concurring.

I join the majority opinion to the extent the majority determines that it was improper to inject references to specific instances of criminal activity irrelevant to the case before the jury. This, of course, was an ad hominem appeal to the jurors general sense of outrage regarding the increasingly violent nature of our society.

I wish to note however, that I find nothing whatsoever inappropriate about the prosecution’s argument that motive need not always be considered. The fact is, indiscriminate crime is indeed prevalent in our society. Motive, therefore, is unnecessary in establishing a case against a defendant. Thus, if the prosecution had merely argued that, given the prevalence of indiscriminate crime in our society, no motive necessarily need be shown; I would not hesitate to affirm judgment of sentence.

However, the prosecutor herein not only included references to specific instances of criminal behavior with no logical or factual nexus to the events of this case, he argued that motive was irrelevant as a matter of law. Such argument constituted reversible error, as the majority correctly concludes.

      . A prior trial was aborted by the court sua sponte when it was discovered that both Green and a Commonwealth witness were represented by the office of the public defender. When Green thereafter filed a motion to dismiss on double jeopardy grounds, the motion was denied. The trial court’s order was affirmed by the Superior Court. See: Commonwealth v. Green, 407 Pa.Super. 645, 584 A.2d 1046 (1990).

      . After post-trial motions had been denied, the trial court sentenced Green to serve a term of imprisonment for not less than four (4) years nor more than ten (10) years. The prosecutor then filed a petition to reconsider sentence, arguing that the provisions of 42 Pa.C.S. § 9712 mandated a minimum sentence of five years of total confinement if a person found guilty of aggravated assault “visibly possessed a firearm during the commission of the offense.” In response, the trial court vacated its sentence and imposed the sentence from which the instant appeal has been taken.


source: Caselaw Access Project

author: MONTEMURO, Judge: ROWLEY, President Judge,

license: Public Domain

text:
    611 A.2d 1300
    COMMONWEALTH of Pennsylvania v. Mary M. CAUFMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 21, 1992.
    Filed July 14, 1992.
    Reargument Denied Sept. 18, 1992.

      William C. Sacco, Erie, for appellant.
    Patrick M. Carey, Asst. Dist. Atty., Erie, for Com., appellee.
    Before ROWLEY, President Judge, and MONTEMURO and HESTER, JJ.
   MONTEMURO, Judge:

This is an appeal from an order denying appellant’s pretrial motion requesting that her case be dismissed on the grounds that the present prosecution violates the Double Jeopardy clause of the United States Constitution. The sole issue raised on review is whether appellant’s prosecution for homicide by vehicle is barred by double jeopardy due to her previous plea of guilty to a summary traffic citation.

The relevant facts in this controversy are succinctly stated by the trial court and are as follows:

On October 26, 1990, Mary Caufmann [sic] was operating a motor vehicle on State Street when she struck Ruth Smith who was crossing the street. Caufmann [sic] remained at the scene and talked with Police Officer Steven Goodich, who conducted the initial investigation. She indicated to the officer that she had been drinking and he noted that she had an odor of alcohol about her, but was without additional signs of intoxication. A subsequent blood test indicated a blood alcohol level below the legal limit.
At the scene, Officer Goodich measured the skid marks, and talked with an eye witness, and an Erie police officer, Sergeant Turner. The victim, Ruth Smith, was transported to the hospital. On October 30th, Officer Goodich spoke with the district attorney’s office and caused a traffic citation to be issued to Ms. Caufmann [sic] alleging that she failed to drive at a safe speed. On November 2nd, Ruth Smith died while in the hospital and on November 14th, after receiving notice of the citation, Ms. Caufmann [sic] pled guilty to the traffic violation and paid the designated fine. The same day, Officer Goodich filed a criminal complaint charging Ms. Caufmann [sic] with Homicide by Motor vehicle.

(T.C.O. at 1-2).

Appellant asserts that double jeopardy bars any attempt to convict her for homicide by vehicle due to her previous conviction for driving at an unsafe speed. This issue was recently decided in the United States Supreme Court case Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). In Grady, the Court held that the Double Jeopardy Clause of the United States Constitution bars a subsequent prosecution if, in order to establish an essential element of the current offense charged, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted. Since appellant contends that Grady is controlling in the instant case, a careful review of the facts in Grady is necessary.

On October 3, 1987, defendant Corbin drove his automobile across a double yellow line, colliding head on with two oncoming vehicles. New York Assistant District Attorney (ADA) Thomas Dolan was called to the scene where he learned that two passengers in the second vehicle struck were seriously injured, and later that day learned that one of the passengers eventually died as a result of those injuries. That same evening the defendant was served two traffic tickets directing him to appear at the LaGrange Town Justice Court on the charges of driving while intoxicated, and failing to keep right of the median.

Three days later ADA Frank Chase began gathering evidence for a homicide charge. ADA Chase never informed either the Town Justice Court, or the ADA covering that court about the death of the victim or the pending homicide investigation. On October 27, 1987, Corbin plead guilty to the summary offenses; however, sentencing was deferred since the district attorney failed to present a sentencing recommendation. On November 17, 1987 a sentencing hearing took place, wherein ADA Sauter who did not review the file, and was unaware of the fatality and pending investigation, recommended a minimum sentence. The presiding judge sentenced Corbin to a $350 fine, a $10 surcharge, and a six month license revocation.

On January 19, 1988, a grand jury investigating the October 3, 1987 accident indicted Corbin on the charges of reckless manslaughter, second-degree vehicular manslaughter, and criminally negligent homicide, third-degree reckless assault, and driving while intoxicated. The bill of particulars filed by the prosecution indicated that it would prove its case by showing that Corbin drove while in an intoxicated condition, failed to keep right of the median, and drove too fast for conditions. Corbin asserted that the guilty plea before the town justice operated as a bar from prosecution for charges arising from the same conduct, to which the United States Supreme Court agreed.

In analyzing the double jeopardy claim, the Court first noted that the subsequent prosecution was not barred under the traditional Blockburger test, “because each offense ‘require[d] proof of a fact which the other [did] not’ ”. Grady supra at 515, 110 S.Ct. at 2090 quoting Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Court then held that Blockburger was merely the first step in the analysis. While the Blockburger test protects an individual from multiple prosecutions and hence multiple punishments for the same offense, it does not fully address all of the harm caused by successive prosecutions. The Court in Grady noted that the double jeopardy clause implicates greater concerns beyond the possibility of subjecting a person to an enhanced sentence:

‘The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.’ Green v. United States, 355 U.S. 184 [78 S.Ct. 221, 2 L.Ed.2d 199] (1957)

Grady supra at 518, 110 S.Ct. at 2091. Moreover, the government should not be allowed to rehearse its case. Thus, after applying the Blockburger test a second inquiry is necessary to determine whether the defendant was already prosecuted for conduct that is a necessary element of the present charge.

Applying this second test, the court held that double jeopardy clause barred this subsequent prosecution because the bill of particulars expressly stated that the state would rely on the conduct of crossing a medium, and driving while intoxicated which was the very conduct for which Corbin had been convicted.

This court has had occasion to apply Grady v. Corbin in a recent en banc decision, Commonwealth v. Labette, 397 Pa.Super. 179, 579 A.2d 1315 (1990) allocatur granted 527 Pa. 623, 592 A.2d 43 (1991). In Labette, this Court was presented with the issue of whether a guilty plea to the summary offenses of driving a vehicle at an unsafe speed, and reckless driving, precluded the Commonwealth from maintaining a subsequent prosecution for driving under the influence. After determining that the Blockburger test was inapplicable, this court overruled Commonwealth v. Evers, 381 Pa.Super. 568, 554 A.2d 531 (1989), and held that the Grady test was applicable to a felony or misdemeanor prosecution that was proceeded by a conviction before a district justice, whether by summary trial or guilty plea for a summary offense. The Labette court however, remanded the case because, unlike the Supreme Court in Grady, the court was unable to determine whether the second prosecution involved the same conduct for which Labelle was already convicted.

In the instant case, appellant concedes that the homicide by vehicle prosecution is not barred by the Blockburger test because of the prior conviction for driving at an unsafe speed. Rather, appellant asserts that she is presently being prosecuted for conduct for which she has already been convicted in violation of Grady. The Commonwealth counters that the conduct for which the prosecution would prove its case for homicide by vehicle is different from the conduct for which the appellant was already convicted. See, Commonwealth v. Adams, 406 Pa.Super. 493, 594 A.2d 727 (1991) (subsequent conviction for DUI did not involve same conduct as prior conviction for reckless driving); Commonwealth v. Kline, 405 Pa.Super. 412, 592 A.2d 730 (1991) (subsequent conviction for DUI did involve same conduct as prior conviction for crossing a medium); Commonwealth v. Yingling, 407 Pa.Super. 151, 595 A.2d 169 (1991) (subsequent conviction for DUI did not involve same conduct as prior conviction for underage drinking); Commonwealth v. Bellezza, 412 Pa.Super. 469, 603 A.2d 1031 (1992) (subsequent DUI charge did not involve same conduct as prior disorderly conduct conviction).

Specifically, the Commonwealth contends that appellant will be tried not only for driving at an unsafe speed, but also for driving at a high, rate of speed while weaving in and out of traffic and passing vehicles, in an area of high pedestrian and vehicular traffic, at night, after consuming alcohol. The trial court rejected this argument and noted that with the possible exception of the evidence of intoxication, all of the Commonwealth’s evidence is directed toward appellant’s conduct of driving at an unsafe speed. We agree with this determination and find it disingenuous for the Commonwealth to argue on appeal that appellant’s excessive rate of speed is not an essential element to the present charge of homicide by vehicle.

Finding that the prior conviction involved the same conduct, however, does not end our inquiry. The Grady Court recognized,

that when application of our traditional double jeopardy analysis would bar a subsequent prosecution, “[a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not been discovered despite the exercise of due diligence. See Diaz v. United States 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500] (1912); Ashe v. Swenson, 397 U.S. 436 [90 S.Ct. 1189, 25 L.Ed.2d 469] (1970) (Brennan, J. concurring).”

Grady, supra at 516, n. 7, 110 S.Ct. at 2090, n. 7 quoting Brown v. Ohio, 432 U.S. 161, 169, n. 7, 97 S.Ct. 2221, 2227, n. 7, 53 L.Ed.2d 187 (1977). The Grady Court concluded that such an exception was not applicable under its facts since the district attorney’s office was aware of the victim’s death on the night of the accident.

In the present case, the trial court, after considering the underlying rationale for barring subsequent prosecutions, held that the due diligence exception does apply. Specifically, the trial court held that the concerns underlying the double jeopardy clause:

assume[s] the prosecution has the ability to control the charging process and calculate and pursue a planned strategy, an ability which, as in this case, does not always exist. Here, the facts reveal that at the time of the accident on October 26,1990, the victim, although injured, survived and was taken to the hospital. At the time that the summary traffic citation was issued four days later the victim, although hospitalized, was alive and it was not until November 2, 1990, that Ruth Smith died. The defendant, having received the citation sometime after October 30th, was entirely free to plead guilty and tender the fine at any time within ten day after receipt of the summons and without a personal appearance in court. Pa.R.Cr.P., 62 and 64. Such an occurrence was beyond the practical control of the District Attorney.

(T.C.O. at 4).

We agree with the trial court that the manner in which summary traffic convictions are handled in Pennsylvania makes it very difficult to ensure that a person does not plead guilty to a summary offense prior to being charged with a more serious criminal offense. However, we are constrained, given Grady supra, and Labelle supra, to disagree with the trial court’s conclusion that this fact excuses the district attorney’s office from being barred from placing an individual in double jeopardy.

In the instant case, there was an accident in which an elderly woman was sent to the hospital in serious condition. On October 30, four days after the accident, after consultation with the district attorney’s office, appellant was cited for driving at an unsafe speed. On November 2, 1990, the victim died as a result of injuries suffered from being struck by appellee. On November 14, appellee paid the traffic citation, and on the same day was charged with homicide by vehicle.

It is true that the district attorney’s office could not possibly have charged appellant with homicide by vehicle before November 2, 1990, when Ms. Smith died. Furthermore, if appellee pleaded guilty prior to the time the district attorney’s office knew that a death was caused by the accident, then double jeopardy would not attach. See Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912) (subsequent trial for murder was not barred by prior conviction for assault and battery when victim died after first conviction). However, the district attorney’s office was in possession of all necessary facts when appellee plead guilty on November 14, 1990. Thus, the due diligence exception relied upon by the trial court does not apply to this case.

Accordingly, we find that when appellant plead guilty to driving at an unsafe speed, jeopardy attached, and the Commonwealth was barred from bringing this second prosecution based on the same conduct.

Order Reversed.

ROWLEY, P.J., files dissenting statement.

ROWLEY, President Judge,

dissenting:

I respectfully dissent.

I am not convinced that the record before us discloses a failure on the part of the Commonwealth to act with due diligence. According to the Commonwealth, the “main investigator” was on vacation until the second week of November. Following his return to work he “investigated the accident” and then the charge at issue here was filed. I agree with the trial court that, on the basis of this record, “the Commonwealth acted diligently and in a manner which did not offend the rationale of the double jeopardy prohibition.”

For this reason I would affirm the order of the trial court and remand the case for trial.

      . Initially, the probable cause portion of appellant’s criminal complaint only included the fact that her vehicle left 90 feet of skid marks. However prior to appellant’s preliminary hearing, the complaint was was amended to include these other claims.

      . Although bound by Commonwealth v. Labelle, this writer still clings to the view that double jeopardy should not be implicated by summary offenses. See Commonwealth v. Evers supra.

      . There is no intimation that the Commonwealth was aware that appellant plead guilty when appellant was charged with homicide by vehicle, or that appellant was aware that these charges were levied against her when she plead guilty to driving at an unsafe speed. The reason appellee was not charged criminally for 12 days after the death of the victim was that the charging district attorney was on vacation.


author: JOHNSON, Judge:

text:
    611 A.2d 1304
    DOWNINGTOWN COMMONS CONDOMINIUM ASSOCIATION v. Amrit LAL, Appellant.
    Superior Court of Pennsylvania.
    Argued May 20, 1992.
    Filed July 14, 1992.
    Reargument Denied Sept. 17, 1992.

      Thomas R. Kellogg, Blue Bell, for appellant. (Submitted)
    Holly L. Seltzler, West Chester, for appellee.
    Before BECK, JOHNSON and HUDOCK, JJ.
   JOHNSON, Judge:

The Honorable Leonard Sugerman sustained the preliminary objections in the nature of a motion to strike an appeal from district justice judgments and ordered the appeal of Amrit Lai from those judgments dismissed. Lai now appeals that dismissal to this court, contending that filing one appeal in the court of common pleas from three distinct judgments rendered by a district justice in three separate in rem proceedings is a proper procedure. We disagree and affirm the order dismissing the appeal.

Downington Commons Condominium Association is a collectivity of unit owners under the Uniform Condominium Act, 68 Pa.C.S. §§ 3101 et seq. (1992 Supp.). The Association commenced three actions to collect unpaid assessments against three separate parcels of real estate owned by Lai. The district justice court assigned separate numbers to each of the complaints. After hearing before the district justice, three judgments were issued by the court, at Nos. CV-152-91, CV-154-91, and CV-155-91.

Lai filed one appeal in the Chester County Court of Common Pleas, which appeal was docketed at No. 91-06200. The notice of appeal form contained a rule upon the Association to file a complaint. The Association filed its preliminary objections in the nature of a motion to strike, which motion was granted by Judge Sugerman on September 9, 1991, prompting this appeal.

Lai seeks to argue, in his Summary of Argument, Brief of Appellant, page 2, that this is a case of first impression. We are unable to agree. This case is very similar to the case of Ockman v. Jackson, 73 D. & C.2d 298 (1975). In that case, the plaintiff-landlord had taken separate and individual actions against eleven tenants, all members of the Kentwell Hall Tenants Association. After the landlord secured judgment in the Municipal Court, the tenants petitioned the Philadelphia Court of Common Pleas to allow a consolidated appeal, that is, a common appeal by all petitioners, the appeals to be filed under a unitary court term and number and to be consolidated for purposes of a single action. Both the Court Administrator and the common pleas court prothonotary concluded that this was not a proper procedure under the rules of court.

The defendant-tenants then petitioned the court of common pleas for consolidation. In dismissing the rule for consolidation of appeals, the Philadelphia Court of Common Pleas, speaking through the Honorable Paul A. Tranchitella, declared:

This court agrees with [the Court Administrator] and the prothonotary after having reviewed Pa.R.C.P. 213. This rule permits consolidation of actions and issues with respect to the proceedings which have been separately commenced. It is quite possible and probably beneficial to the courts and the parties to have these matters consolidated at a later date for the purpose of trial. However, it would be improper to merge these actions prior to their institution for fear of each action not being able to maintain its own integrity with respect to the record and the docket entries. As a result of these actions being commenced separately by plaintiff, it is now necessary that they remain separate for purposes of appeal. The question of consolidation is not being presented here, though it should be anticipated in the future.
The petitioners should, therefore, proceed to appeal from the judgment in the Municipal Court on an individual basis in accordance with the rules.

Ockman v. Jackson, supra at 299 (emphasis added). See and compare Burr v. Callwood, 374 Pa.Super. 502, 509 n. 4, 543 A.2d 583, 587 n. 4 (1988) (citing Pa.R.D.J. 1007(B)).

We do not find the fact that Ockman involved an appeal from Municipal Court rather than from a district justice court to detract from its sound reasoning. Both Ockman and the case now before us involve a de novo appeal to the court of common pleas by multiple defendants against an individual plaintiff who had brought separate complaints against each defendant.

Lai argues that his notice of appeal should be deemed a motion for consolidation under Pa.R.C.P. 213 “if there be any doubt as to the propriety of his action.” Brief of Appellant, at page 6. We find the analysis by Judge Tranchitella, above, to be a satisfactory answer to that contention. In the alternative, Lai argues that “[a]s the party initiating the action in Common Pleas, which is de novo [,] he should be permitted to consolidate the actions under Rule 1020(a), Pa.R.C.P.” Id. at page 2. We reject this argument for two reasons.

Rule 1020(a) provides:

(a) The plaintiff may state in the complaint more than one cause of action against the same defendant heretofore asserted in assumpsit or trespass. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief, [emphasis added].

Lai is not the plaintiff, but rather the party bringing an appeal following judgments for the plaintiff. The actions are not being “initiated” in the common pleas court, but rather they are being appealed to that court, in a continuing process, albeit with the right in the appealing party to secure a new trial.

Lai further argues that the rules covering appeals from civil judgments of district justices only allow striking an appeal in two instances: failure to comply with Pa. R.C.P.D.J. Nos. 1004 A or 1005 B, citing to Pa.R.C.P.D.J. No. 1006. Rule 1006 sets forth two specific situations wherein an appeal may be stricken for failure to comply with express rules relating to practice within the district justice courts. This, however, in no way detracts from a court’s inherent power to strike a pleading which is not in conformity to the rules. Pa.R.C.P. 1028(a)(2) [formerly Rule 1017(b)(2)]. See Pa.R.C.P.D.J. No. 1007 A.

On this appeal, we are limited to determining whether the trial court abused its discretion or committed an error of law when it sustained the preliminary objections in the nature of a motion to strike, where the appealing defendants sought to bring only one appeal from three separate judgments. Anderson v. Centennial Homes, Inc., 406 Pa.Super. 513, 594 A.2d 737 (1991). Relying upon Pa. R.C.P.D.J. No. 1002, Judge Sugerman construed the rule as requiring three separate notices of appeal, where the plaintiff had filed three separate complaints and the district justice had issued three separate judgments. After our own careful review of the rules, the cases, and the record certified on this appeal, we cannot say that the trial court committed any error of law or abused its discretion.

We note that neither Lai nor any counsel speaking on his behalf answered the call of this case for oral argument on May 20, 1992.

Order dated September 9, 1991 sustaining preliminary objections and dismissing the appeal at No. 91-06200 in the Court of Common Pleas, Chester County, is AFFIRMED.


author: POPOVICH, Judge. MONTEMURO, Judge,

text:
    611 A.2d 1307
    Francis X. DAVISH, Appellee v. Wade GIDLEY and Douglas Lartz and Julie Lartz. Appeal of NEW JERSEY MANUFACTURERS INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 21, 1992.
    Filed July 24, 1992.

      Louis A. Bove, Philadelphia, for appellant.
    Timothy W. Stalker, Yardly, for Davish, appellee.
    Before ROWLEY, President Judge, and MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge.

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, which denied New Jersey Manufacturers Insurance Company’s petition to intervene. Herein, appellant seeks to intervene in appellee Francis X. Davish’s third-party action in order to assert its statutory right of subrogation as set forth in the New Jersey Workers’ Compensation Act, N.J.S.A. §§ 34:15-1 et seq. However, Appellee contends the lower court properly determined that the law of Pennsylvania controlled and, therefore, properly disallowed intervention pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. § 1720, which prohibits subrogation of workers’ compensation benefits from a claimant’s tort recovery. Although the lower court originally denied appellant’s petition to intervene, in its Pa.R.A.P. 1925 opinion, the lower court candidly admits it erred in denying appellant’s petition to intervene and, upon reflection, would permit intervention. We agree with the lower court’s more recent assessment of the case, and, upon remand for trial, we direct the lower court to permit appellant to intervene.

The record reveals the following facts: Appellee, a resident of Pennsylvania, was an employee of Starr Transit Company, a New Jersey corporation with its principal place of business in Trenton, New Jersey. Starr Transit operated a depot in Philadelphia County where appellee reported to work each day. On July 3, 1987, while engaged in the course of his employment, appellee was involved in a motor vehicle accident in Pennsylvania.

Appellant is a duly organized and licensed insurance company with its principal place of business in West Trenton, New Jersey. At all relevant times hereto, appellant was the workers’ compensation carrier for appellee’s employer. Following the accident, appellee sought workers’ compensation benefits pursuant to the New Jersey Workers’ Compensation Act, N.J.S.A. § 34:15-1 et seq., and was awarded temporary and permanent disability benefits and all medical expenses. To date, appellant has paid approximately $41,379.19 to appellee under the provisions of the New Jersey Workers’ Compensation Act. Significantly, appellee could have chosen to apply for workmen’s compensation benefits pursuant to the Pennsylvania Workmen’s Compensation Act, 77 Pa.S.A. § 1 et seq., but chose to pursue the greater recovery offered under the New Jersey Workers’ Compensation Act, N.J.S.A. § 34:15-1 et seq

After recovering his New Jersey workers’ compensation benefits, appellee filed suit in Pennsylvania against the tortfeasors involved in the motor vehicle accident. Appellee then sought to intervene in the action in order to protect its statutory right of subrogation guaranteed under New Jersey Law. N.J.S.A. § 34:15-40. The lower court denied the petition on the basis that subrogation is not permitted under Pennsylvania law, citing 75 Pa.C.S.A. § 1720. This appeal followed.

The issue before us is whether New Jersey or Pennsylvania law should be applied in determining appellant’s right to subrogation. Allstate v. McFadden, 407 Pa.Super. 537, 539, 595 A.2d 1277, 1278 (1991). See e.g., Van Den Heuval, 382 Pa.Super. 242, 555 A.2d 162; Myers v. Commercial Union Assurance Companies, 319 Pa.Super. 21, 465 A.2d 1032 (1983). In a conflict-of-law case, the law to be applied is that of the state having the more significant contacts with the matter in dispute. Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964); McFadden, 407 Pa.Superior Ct. at 542, 595 A.2d at 1279; Myers, 319 Pa.Superior Ct. 26, 465 A.2d at 1035. Under Pennsylvania’s choice-of-law standard, the jurisdiction having more interest in the problem and which is more intimately concerned with the outcome, is the forum whose law should apply. McFadden, 407 Pa.Superior Ct. at 537, 595 A.2d at 1277, citing Spratley v. Aetna Casualty & Surety Co., 704 F.Supp. 595 (E.D.Pa.1989). Under the most significant contacts rule, the paramount consideration is: "... an analysis of the extent to which one state rather than another has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law.” McSwain v. McSwain, 420 Pa. 86, 94, 215 A.2d 677, 682 (1966).

Instantly, looking at the interests and contacts of New Jersey, we find that New Jersey has a significant interest in payments under its Workers’ Compensation Law and the subrogation by New Jersey employers to monies paid to its employees by third-party tortfeasors. In addition, the employer in this case is a New Jersey corporation, although it regularly conducts business in Pennsylvania. Most significantly, Appellee elected to recover workers’ compensation benefits pursuant to the more favorable New Jersey Workers’ Compensation Law.

Pennsylvania, on the other hand, has an interest in enforcing its Motor Vehicle Financial Responsibility Law which does not permit subrogation of workers’ compensation benefits. In addition, appellee and two of the alleged tortfeasors are residents of Pennsylvania, and the accident occurred in this state. Although appellee is employed by New Jersey corporation, he reports to his job at his employer’s depot located in Pennsylvania and works primarily within Pennsylvania.

We recognize that this court has previously held that the state where the workers’ compensation policy is regulated is the state with more significant contacts regarding workers’ compensation subrogation. See McFadden, 407 Pa.Superior Ct. 542, 595 A.2d at 1279; Van Den Heuval, supra; Myers, supra; Lewis v. Chemetron Corp., 448 F.Supp. 211, 213 (W.D.Pa.1978). Following those decisions, we find that New Jersey is the state with the most significant interest in determining the right of a New Jersey employer to subrogate where it has made workers’ compensation payments to a Pennsylvania employee pursuant to the New Jersey Workers’ Compensation Law. Instantly, neither appellee’s residency in Pennsylvania nor the accident’s situs in this Commonwealth is an overriding consideration. The fact that the accident occurred in Pennsylvania merely triggered appellee’s right to workers’ compensation under either the New Jersey Workers’ Compensation Law or the Pennsylvania Workmen’s Compensation Law. We must remember that, “The law does not require us to apply the law of the state whose contacts are most numerous, but rather demands a sensitivity to the relative importance of each of the several contacts to the substantive policy of workmen’s compensation.” Lewis, 448 F.Supp. at 213, citing Elston v. Industrial Lift Truck, 420 Pa. 97, 216 A.2d 318 (1966). Significantly, appellee made his own choice of law when he elected to collect workers’ compensation benefits under New Jersey law. Accordingly, we conclude that appellant should be permitted to intervene in order to protect its statutory right of subrogation.

Having determined that appellant is permitted to intervene in order the protect its subrogation rights, we must also comment upon what damages appellee is entitled to collect. In general, the purpose of subrogation is to preclude a double recovery by the claimant. See Lattimer v. Boucher, 189 N.J.Super. 33, 39, 458 A.2d 528, 530 (1983). In New Jersey, double recovery is prevented by granting the right of subrogation to the workers’ compensation carrier from a claimant’s tort recovery in a motor vehicle case. In New Jersey, the injured party can recover for medical expenses and lost wages from the third-party tortfeasor.

On the other hand, Pennsylvania prevents a double recovery in a manner quite different from that of New Jersey. While a workmen’s compensation carrier has absolutely no right of subrogation from a claimant’s tort recovery under the MVFRL, 75 Pa.C.S.A. § 1720, the claimant, in an action for damages from the third-party tortfeasor arising out of a motor vehicle accident, is “precluded from recovering the amount of benefits paid or payable under ... workers’ compensation[.]” 75 Pa.C.S.A. § 1722. See Postorino v. Schrope, 736 F.Supp. 639 (E.D.Pa.1990) (pedestrian who was injured in motor vehicle accident in course of his employment and whose medical expenses and lost wages were paid through workers’ compensation was foreclosed from introducing medical expense and wage loss evidence in tort action by operation of 75 Pa.C.S.A. § 1722). Thus, in the ordinary case, appellee would be precluded from recovering the amount of his workers’ compensation benefits in this third-party tort action, pursuant to 75 Pa.C.S.A. § 1722. However, since we have determined that appellant is permitted to intervene in order to protect its subrogation rights guaranteed by New Jersey law, we must permit appellee to plead and prove his wage loss and medical expense damages in accordance with New Jersey law. Although such a ruling is in conflict with 75 Pa.C.S.A. § 1722, to rule otherwise would entitle appellant to subrogate that which appellee would not be permitted to recover.

Order denying intervention reversed. Case remanded for further proceedings in accordance with the provisions of this opinion.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting.

Instantly, this court is required to determine whether the laws of this state or New Jersey apply to an action initiated by the plaintiff-employee to recover damages for injuries allegedly caused by third-party tortfeasors. Specifically, we must determine whether the right of subrogation provided for by the New Jersey Workers’ Compensation Act or the prohibition against subrogation set forth in the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. § 1701 et seq., applies to the instant dispute. To resolve this question, we must analyze the policies and interests that underlie the dispute and then determine which state has the greatest interest in having its law applied to the case. Griffith, supra. Although the majority has conducted such an analysis, I find that its decision is contrary to Pennsylvania law and therefore, I must respectfully dissent.

Under New Jersey law, an employer is subrogated to any monies recovered by its employee from a third-party tortfeasor who is legally responsible for the employee’s injury. N.J.S.A. 34:15-40. The reason New Jersey allows subrogation is to guarantee that an injured employee receives only a single recovery for his injuries. Lefkin v. Venturini, 229 N.J.Super. 1, 550 A.2d 985 (1988).

When an employee is injured in a work-related motor vehicle accident, the employee could theoretically seek reimbursement for his economic injuries from his employer, a motor vehicle insurance policy or by bringing a civil action against the tortfeasor. New Jersey addresses this factual situation via a reimbursement scheme which precludes recovery under the motor vehicle insurance policy and allows the plaintiff-employee to seek a full recovery from the third-party tortfeasor subject only to the workers’ compensation lien of the employer. Lefkin, supra. Thus, the employee is compensated for his injuries, but by way of a single recovery.

Under Pennsylvania law, an injured employee is also limited to a single recovery. However, our compensation scheme differs significantly from the system adopted by New Jersey.

In Pennsylvania, our legislature has put into place a compensation scheme which requires that workers’ compensation and motor vehicle insurers bear the primary burden of providing compensation for economic loss. 75 Pa.C.S.A. § 1722. Therefore, the plaintiff-employee can seek compensation from the tortfeasor only for such injuries not recoverable under workers’ compensation or by the provisions of the MVFRL. Id. Thus, the workers’ compensation insurer’s statutory right of subrogation has been abrogated to assure a full recovery for an injured employee. 75 Pa. C.S.A. § 1720. Compare 77 P.S. § 671 (employer subrogated to rights of employee when injury caused by a third party).

From the above discussion, it is apparent that the policy of both compensation schemes is to allow the plaintiff-employee a full but single recovery. Therefore, a conflict does not exist with regard to appellant’s right to subrogation. Rather, the true conflict before us is who should bear primary responsibility for the economic losses suffered by the plaintiff-employee; the New Jersey employer or the Pennsylvania tortfeasors.

Here, the plaintiff-employee, as well as the tortfeasors, are Pennsylvania residents. Pennsylvania is also the situs of the accident. The only connection this case has with New Jersey arises from the plaintiff-employee’s decision to assert a workers’ compensation claim under New Jersey law. Under these facts, I fail to understand how this court can find that New Jersey’s interest in allowing a full recovery from a tortfeasor can prevail over our interest in limiting the recovery available from third-party tortfeasors. Therefore, I would deny appellant’s petition to intervene.

In reaching this decision, I am mindful of this court’s decisions in Van Den Heuval, supra and Myers, supra which allowed an out-of-state workers’ compensation carrier to intervene in a suit brought in this state to recover for injuries incurred during an automobile accident. Although this court allowed the carriers to intervene, the result reached in each case is specific to the facts of that case. Neither case stands for the broad proposition that an out-of-state workers’ compensation insurer has an absolute right to intervene in a Pennsylvania civil action. To the contrary, these cases require that we analyze the interests of the foreign workers’ compensation law, our own state’s interest in the dispute and then determine which law is applicable to the facts before us. Thus, I do not feel constrained to follow the result reached in either Van Den Heuval or Myers

Accordingly, I would affirm the order of the trial court denying appellant’s petition to intervene.

      . In Van Den Heuval v. Wallace, 382 Pa.Super. 242, 245, 555 A.2d 162, 163 (1989), we stated: “Although an order denying a Petition to Intervene is generally deemed interlocutory, where the practical effect of such an Order is the denial of relief to which an intervenor is entitled and which he can obtain in no other way, the Order is appealable.” (Citations omitted). In Van Den Heuval, supra, we concluded that an out-of-state workmen's compensation carrier was entitled to be subrogated in the third-party action to the extent of the workmen’s compensation benefits which it had paid. In so deciding, we noted that it was unrealistic to suggest that the carrier’s interest could be protected by a subsequent action against Van Den Heuval in a different forum. In regard to the issue of whether the present appeal is interlocutory, Van Den Heuval, supra, is directly on point and factually indistinguishable from the case sub judice. Thus, we find that the present action is properly before us.

      . Appellee was represented by counsel at the time of his application for workers’ compensation benefits in New Jersey.

      . In general, under Pennsylvania law, an injured employee may recover 662A% of his wages for total disability during the duration of his disability. 77 Pa.S.A. § 511. For a partial disability, a Pennsylvania employee is entitled to 662A% of the difference between his wages and the "earning power” of the employee after his disability, during the duration of his disability. 77 Pa.S.A. § 512. In New Jersey, an employee is entitled to 70% of his wages for his disability, total or partial, for the duration of his disability. N.J.S.A. § 34:15-12.

      . As previously noted, the lower court, in its Pa.R.A.P.1925 opinion, concluded it had erred and, upon reflection, would grant the petition to intervene, citing Van Den Heuval, supra.

      . The majority does not address this pivotal issue, but focuses its discussion on appellant’s right of subrogation and the plaintiff-employee’s right to be fully compensated for his injuries. What they do not consider is the impact their decision will have on the tortfeasors. The majority requires that the tortfeasors bear the burden of providing the plaintiff a full recovery. Not only is this result not dictated by Pennsylvania’s choice-of-law standard, it directly contravenes the express mandates of the MVFRL. 75 Pa.C.S.A. § 1722.

      . I agree with the holdings of these cases which recognize the interest that our sister states have in administering their workers’ compensation system. However, I feel that this court must also keep in mind that the purpose of the MVFRL is to ensure that injured parties are afforded a complete recovery for their losses. Walters v. Kamppi, 118 Pa.Commw. 487, 545 A.2d 975 (1988), alloc. denied, 520 Pa. 622, 554 A.2d 513 (1989).


author: POPOVICH, Judge:

text:
    611 A.2d 1312
    COMMONWEALTH of Pennsylvania, Appellee, v. Joseph Francis KENNEDY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 26, 1992.
    Filed July 30, 1992.

      William I. English, Jr., Norristown, for appellant.
    Mary M. Killinger, Asst. Dist. Atty., Norristown, for Com., appellee.
    Before POPOVICH, FORD ELLIOTT and CERCONE, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence following revocation of the appellant’s, Joseph F. Kennedy’s, probation. Counsel for the appellant seeks to withdraw his representation and claims that he has done so pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

The facts are not in dispute. On July 16, 1985, the appellant entered a guilty plea to the charges of burglary and criminal conspiracy. Sentence for burglary consisted of 4 to 10 years imprisonment, while a period of 5 years probation, to be served consecutively to the burglary sentence, was imposed for criminal conspiracy.

Once the appellant completed his sentence for burglary, he was placed on probation for conspiracy. Thereafter, the appellant was charged with violating his probation. As a result thereof, a hearing was conducted wherein the appellant waived his right to a Gagnon I hearing and stipulated to the Gagnon II proceeding. He did so without any threats or promises being made, while all the time cognizant that a probation violation could result in the imposition of a sentence for criminal conspiracy. Once a pre-sentence report was prepared, the appellant was sentenced on June 26, 1991, to a term of 2 to 10 years imprisonment. This appeal followed.

In Commonwealth v. Thomas, 354 Pa.Super. 87, 511 A.2d 200, 201 (1986), this Court set forth those requirements which need to be satisfied prior to granting counsel leave to withdraw; to-wit:

(1) petition[ ] ... for leave to withdraw [must] state[ ] that, after making a conscientious examination of the record and interviewing the defendant, [counsel] ha[s] determined that the appeal [i]s frivolous; (2) file [] a brief referring to anything in the record that might arguably support the appeal, but which d[oes] not resemble a no-merit letter or amicus curiae brief; and (3) furnish[] a copy of the brief to the defendant and advise[ ] him of his right to retain new counsel or raise any additional points that he deem[s] worthy of this Court’s attention. [Emphasis added]

Accord Commonwealth v. Wilson, 396 Pa.Super. 296, 578 A.2d 523, 524-25 (1990); Commonwealth v. Gee, 394 Pa.Super. 277, 575 A.2d 628, 629 (1990); Commonwealth v. Beasley, 391 Pa.Super. 287, 570 A.2d 1336, 1337 (1990); Commonwealth v. McFarland, 386 Pa.Super. 91, 562 A.2d 369 (1989); Commonwealth v. Wallace, 322 Pa.Super. 157, 469 A.2d 230, 231-32 (1983).

Instantly, the appellant’s counsel has failed to comply with Point (1) above. To explicate, nowhere in the record is there any indication that the appellant’s counsel filed a “petition to withdraw” after “interviewing” the appellant before determining that an appeal would be frivolous.

In a letter from counsel for the Montgomery County Public Defender’s Office dated October 28, 1991, a copy of which is attached to the “Brief Pursuant To Anders” as Exhibit “A”, the appellant was informed of the following:

Please be advised that this office will be filing what is known as an “Anders” brief in the Superior Court. This brief will advise the court that, having made a conscientious review of the record, this office has determined the appeal to be frivolous. In addition, the brief will request permission to withdraw as counsel.
PLEASE BE ADVISED THAT YOU MAY RETAIN NEW COUNSEL OR RAISE ON YOUR OWN ANY ADDITIONAL POINTS OF LAW THAT YOU MAY DEEM APPROPRIATE FOR REVIEW BY THE SUPERIOR COURT.

Additionally, counsel filed a Petition To Withdraw in which he alleged, as is herein relevant, at Paragraph 4:

The petitioner has examined the record; the petitioner has conferred with the defendant; the petitioner has prepared an Anders brief. True and correct copies of correspondence indicating the foregoing are attached hereto, made a part hereof and marked “A”. [Emphasis added]

It is evident from a reading of the Petition To Withdraw and the October 28th letter (a/k/a Exhibit “A”) that the appeal was determined by counsel to be “frivolous” without ever interviewing or communicating (e.g., via the phone) with the appellant. This is violative of established case law. See, e.g., Thomas, supra.

It is only after all of the requirements attendant to counsel’s request to withdraw are met that a reviewing court will make a full examination of the proceedings and render an independent judgment of whether the appeal is in fact “wholly frivolous.” Commonwealth v. McClendon, 495 Pa. 467, 471, 434 A.2d 1185, 1187 (1981). Since counsel for the appellant has failed to comply with the constitutional requirements for withdrawal, the petition is denied. Thomas, supra.

Counsel is directed to file an amended request for leave to withdraw that meets in all respects the requirements of Anders. See, e.g., Gee, supra; Thomas, supra. Counsel is to comply with this order within thirty (30) days or risk sanctions. Worthy, supra. Jurisdiction of this panel is relinquished. Jurisdiction of the Superior Court is retained. Case to be reassigned by the Superior Court prothonotary to another panel.

      . Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

      . Although McClendon, supra makes no reference to the need to communicate/interview with the appellant in advance of counsel seeking to withdraw because of the frivolousness of an appeal, Superior Court has interpreted the law to be otherwise. See Thomas, supra. More to the point, we do not find that sending a letter to a defendant informing him/her that an appeal perfected on his/her behalf would be frivolous does not satisfy the communication/interviewing contemplated by this Court in Thomas, supra. Surely, a face-to-face confrontation or an affidavit of communication over the phone if counsel cannot meet with the defendant would be satisfactory. Neither scenario transpired instantly. Accordingly, the Petition To Withdraw is premature. Thus, we are required by precedent to adhere to the satisfaction of such a requirement before allowing a petition to withdraw to be granted. Thomas, supra.
      In all other regards, counsel has adhered to the mandate of Anders, e.g., furnishing a copy of the brief to the appellant in advance of seeking to withdraw. Id.; see also Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968); Commonwealth v. Worthy, 301 Pa.Super. 46, 446 A.2d 1327 (1982). Nevertheless, the failure to comply with the dictates of Thomas, supra, on the question of "interviewing” with a defendant in advance of seeking to remove oneself as counsel undermines the grant of the Petition To Withdraw.

      . We would note that the Commonwealth has failed to file a responsive (letter) brief to counsel’s Anders brief. We direct the Commonwealth to do so henceforth. See Thomas, supra.


author: CIRILLO, Judge.

text:
    611 A.2d 1315
    COMMONWEALTH of Pennsylvania v. Clifford Joseph JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 20, 1992.
    Filed Aug. 17, 1992.

      James J. Walker, Scranton, for appellant.
    Michael Jude Barrasse, Dist. Atty., Scranton, for Com., appellee.
    Before McEWEN, CIRILLO and MONTGOMERY, JJ.
   CIRILLO, Judge.

This is an appeal from an order entered in the Court of Common Pleas of Lackawanna County denying the appellant’s motion to dismiss the criminal information on the grounds of double jeopardy. We affirm.

On February 6, 1991, Appellant Clifford Joseph Johnson (Johnson) was charged with indecent assault and corruption of minors. These charges stemmed from Johnson’s alleged sexual assault of a nine year old girl. During a jury trial, the Honorable James J. Walsh presiding, the assistant district attorney attempted to elicit testimony from the victim regarding a threat allegedly made by Johnson, wherein he indicated that he would kill the victim if she told anyone of the assault. The victim declined to testify about the threat. Thereafter, defense counsel made an oral motion to preclude any testimony from other Commonwealth witnesses concerning the threat. The trial court granted the motion and ordered the assistant district attorney to specifically advise and instruct Commonwealth witnesses to refrain from testifying to or making any references concerning the specific threat which Johnson allegedly made.

The Commonwealth then presented the testimony of Beverly Baun (Baun), an employee of the Lackawanna County Bureau of Children and Youth Services. Baun told the jury that upon questioning the victim she learned that Johnson had threatened to kill the child. Stressing that the trial court had ruled that any testimony referring to the alleged threat was inadmissible, Johnson moved for a mistrial pursuant to Rule 1118(b) of the Pennsylvania Rules of Criminal Procedure. The trial court granted Johnson’s motion. Johnson then filed a motion to dismiss the criminal information on the grounds that a retrial should be barred as violative of his constitutional right not to be placed twice in jeopardy. After a hearing on this matter, the trial court denied the motion. This timely appeal followed.

Johnson presents the following issue for our consideration:

Whether reprosecution of the defendant is barred by the double jeopardy clause of the United States and Pennsylvania Constitutions where the defendant’s request for a mistrial was necessitated by grossly negligent misconduct on the part of the prosecution?

The trial court held that no prosecutorial misconduct that would bar reprosecution of this case occurred at trial. Since we can find no evidence of prosecutorial intent to provoke a mistrial or bad faith actions designed to harass or prejudice the defendant, we agree. See Commonwealth v. Starks, 490 Pa. 336, 341, 416 A.2d 498, 500 (1980).

The constitutional guarantee against double jeopardy protects a defendant in a criminal proceeding from multiple punishments or successive prosecutions for the same offense. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974). However, where a mistrial is granted upon a motion from the defendant, the double jeopardy clause generally does not bar reprosecution; the theory is that the defendant has consented to a new trial by his motion. Commonwealth v. Adams, 349 Pa.Super. 200, 502 A.2d 1345 (1986), citing Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); Commonwealth v. McClain, 309 Pa.Super. 163, 454 A.2d 1134 (1983). The exception to this rule arises when there is evidence of prosecutorial misconduct which is intended to provoke a mistrial or bad faith actions designed to prejudice or harass the defendant. Starks, supra.

Because prosecutors are representatives of an impartial sovereignty, our supreme court demands that they seek justice not only convictions. Commonwealth v. Cherry, 474 Pa. 295, 301, 378 A.2d 800, 803 (1977). “It is the solemn responsibility of the prosecution, as the spokesman for the government, ... to conduct his affairs in court in a manner that will avoid designed grievous injury to the court’s proceedings.” Commonwealth v. Simons, 514 Pa. 10, 13, 522 A.2d 537, 539 (1987). The prosecution’s failure to conduct itself accordingly constitutes prosecutorial overreaching which “signals the breakdown of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against.” Commonwealth v. Starks, 490 Pa. at 341, 416 A.2d at 500 (emphasis in original). Thus, if the defendant’s motion for a mistrial is based upon prosecutorial misconduct which is designed to provoke a new trial or is undertaken in bad faith to harass or prejudice the defendant, the double jeopardy clause is triggered, and retrial is barred. Simons, supra.

Here, Johnson’s allegation of prosecutorial misconduct arises from the testimony of two Commonwealth witnesses who referred to the threat that Johnson allegedly made to the victim. Johnson contends that the assistant district attorney failed to affirmatively advise these witnesses to refrain from making such references as specifically ordered by Judge Walsh. We find no evidence to support this claim.

The error from which the mistrial was granted occurred during the testimony of Commonwealth witness Baun. During a sidebar discussion, the assistant district attorney assured both the court and defense counsel that he had instructed Baun to withhold testimony concerning the threat. This was confirmed during a post-trial hearing conducted on Johnson’s motion to dismiss. During that hearing, Baun testified that prior to her testimony, the assistant district attorney told her “to be very careful in [her] testimony” and “specifically told [her] not to mention anything about [the appellant] threatening to kill the children in [her] testimony.”

In Commonwealth v. Yost, 305 Pa.Super. 316, 451 A.2d 549 (1982), the trial court similarly instructed the prosecutor to direct his witnesses to avoid testifying about an objectionable fact regarding the defendant. Nevertheless, a Commonwealth witness made the improper reference, and the trial court granted the defendant’s motion for a mistrial. On appeal, this court found that a retrial was not barred by the double jeopardy clause because there was no evidence of prosecutorial intent to provoke a mistrial or actions undertaken to harass or prejudice the defendant. Id. Such is the case here. We can find no evidence of prosecutorial intent to provoke a mistrial or harass or prejudice the defendant.

Equally devoid of merit is Johnson’s contention that the assistant district attorney embarked upon a line of questioning which invited the prejudicial response given by Baun. The pertinent testimony proceeded as follows:

Q. You said you talked to [the victim], is that right?
A. Yes.
Q. When you talked to her about the incident, how did she appear to you?
A. The child was upset. I questioned her on what happened, and she told me ... that JJ had touched her and threatened to kill her.

We do not find that this line of questioning was undertaken in an effort to elicit an inadmissible response from Baun. The assistant district attorney was merely asking the witness to describe the appearance of the victim. Based upon the conduct of the prosecutor during the trial, and the testimony of Baun at the post-trial hearing, the trial court reasonably concluded that the assistant district attorney was not acting in bad faith or with the intention to provoke a mistrial. Yost, supra.

As we find no evidence in support of Johnson’s allegation of prosecutorial misconduct, we hold that reprosecution of this action is not barred by the double jeopardy clause. Yost, supra. We, therefore, affirm the trial court’s order denying Johnson’s motion to dismiss.

Order affirmed.

      . 18 Pa.C.S.A. § 3126(1).

      . 18 Pa.C.S.A. § 6301.

      . The denial of a pretrial motion to dismiss indictment on double jeopardy grounds is a final, appealable order. Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).


author: WIEAND, Judge:

text:
    611 A.2d 1318
    COMMONWEALTH of Pennsylvania v. Jason BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 13, 1992.
    Filed Aug. 17, 1992.

      John W. Packel, Bradley S. Bridge, Asst. Public Defenders, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

Jason Brown was tried by a jury and was found guilty of aggravated assault and possessing an instrument of crime. His post-trial motions were denied, and he was sentenced to serve concurrent terms of imprisonment for not less than five (5) years nor more than ten (10) years for aggravated assault and for not less than two and one-half (2 1/2) years nor more than five (5) years for possessing an instrument of crime. On direct appeal from the judgment of sentence, Brown contends that he was arrested without probable cause and that the evidence identifying him as an assailant was obtained by unduly suggestive conduct on the part of the police. We find no merit in these contentions and affirm the judgment of sentence.

While walking through the underground concourse near Eighth and Market Streets, in Philadelphia, during the early morning hours of October 21, 1989, Robert B. Perdick was accosted by an Afro-American male carrying a sawed-off shotgun. As a group of the assailant’s friends looked on, the assailant struck Perdick on the left temple with the butt of the shotgun. One of the bystanders yelled that he thought Perdick was a cop; whereupon, the assailant backed off, and Perdick attempted to get away. The assailant and two companions gave chase, and when they caught up with Perdick, he was forced to his knees at knifepoint. The men thereupon rifled Perdick’s pockets and gym bag and took his wallet, watch, paycheck and cash in the amount of sixteen ($16.00) dollars. His assailant then stabbed Perdick in the side before leaving. Perdick was able to dial 911 and summon help; and when police arrived, he was taken to Jefferson Hospital.

At or about 3:30 a.m. on the same morning, police observed three males hiding behind a pillar in the 300 block of Florist Street, where the men were watching people as they left a private club and walked to their cars. One of the men, later identified as Michael Stratton, had a long object in his hand, which the police thought might be a “slap hammer” used in the stealing of cars. When, after several minutes, the three became aware that they were being observed, they froze. The police identified themselves and asked the men what they were doing. Stratton was told to drop whatever he had in his hand. The men did not answer but merely stared at the police, who now began to fear that Stratton was carrying a weapon. One of the police, therefore, drew his gun, threatened Stratton and again told Stratton to drop it. When he finally did so, the men were patted down. The object being held by Stratton was found to be a sawed-off shotgun, and a .22 revolver was found near the feet of another of the men, Raymond Lewis.

When backup assistance arrived, the police learned of the Perdick robbery. The men and the sawed-off shotgun were taken to Jefferson Hospital, where Perdick was now a patient. He was shown the sawed-off shotgun and identified it as the one used in the assault upon him. Although initially uncertain about the identity of the three men, Perdick later identified Jason Brown, the third man, as the one who had assaulted him in the concourse.

Brown moved pre-trial to suppress the fruits of the arrest, but his motion was denied and the evidence was used by the prosecution at trial. The suppression court’s ruling was not raised by Brown in post-trial motions and was not again argued before the trial court. Therefore, the issue has been waived. Only those claims which are raised in post-trial motions are preserved for appellate review. Commonwealth v. Manigault, 501 Pa. 506, 509, 462 A.2d 239, 241 (1983); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Pa.R.Crim.P. 1123(a).

Moreover and in any event, appellant’s contention is lacking in merit. An individual may be stopped and briefly detained, provided the investigating officer can point to specific and articulable facts which, in conjunction with the natural inferences deriving therefrom, reasonably warrant the intrusion. Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986); Commonwealth v. Prengle, 293 Pa.Super. 64, 437 A.2d 992 (1981). An investigative detention may properly ripen into an arrest based on probable cause when additional information confirming the earlier suspicion is uncovered. Commonwealth v. White, supra 358 Pa.Super. at 128, 516 A.2d at 1215; See also Commonwealth v. Palm, 315 Pa.Super. 377, 462 A.2d 243 (1983). In the instant case, the police officers could reasonably make an investigatory stop when, at 3:30 a.m., they observed three men lurking behind a pillar as they watched people move to their cars, while one of them held what appeared to be either a weapon or a device used to steal cars. The object in question was in fact a sawed-off shotgun, and the police also found a handgun on the ground where the three men had been standing. When these discoveries were made, the police had probable cause to arrest. Merely because the police could not conclusively state that the handgun was appellant’s and not one of his companion’s did not invalidate that arrest. See: Commonwealth v. Sangricco, 475 Pa. 179, 379 A.2d 1342 (1977); Commonwealth v. Chase, 394 Pa.Super. 168, 575 A.2d 574 (1990); Commonwealth v. Bunch, 329 Pa.Super. 101, 477 A.2d 1372 (1984).

Appellant’s contention that the victim’s hospital and in-court identifications were unreliable and should have been suppressed is premised upon his claim that the hospital identification was unduly suggestive. More specifically, he complains that at the hospital (1) the victim was shown the shotgun before he saw appellant; (2) appellant and the other two men were in handcuffs; and (3) the victim was told that a less than positive identification would not suffice and that in court he would have to say “it was definitely them or it was definitely not them.”

In McElrath v. Commonwealth, 405 Pa.Super. 431, 592 A.2d 740 (1991), the Superior Court identified the necessary area of inquiry in resolving identification issues as follows:

In reviewing the propriety of identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable. Commonwealth v. Sample, 321 Pa.Super. 457, 461, 468 A.2d 799, 801 (1983), citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) and Commonwealth v. Sutton, 496 Pa. 91, 436 A.2d 167 (1981). Suggestiveness in the identification process is but one factor to be considered in determining the admissibility of such evidence and will not warrant exclusion absent other factors. Id. 321 Pa.Super. at 461-62, 468 A.2d at 801. As the Sample court explained, the following factors are to be considered in determining the propriety of admitting identification evidence: the opportunity of the witness to view the perpetrator at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the perpetrator, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Id., 321 Pa.Superior Ct. at 462, 468 A.2d at 801. The corrupting effect of the suggestive identification, if any, must be weighed against these factors. Id.

Id., 405 Pa.Superior Ct. at 437, 592 A.2d at 742-743. Absent some special element of unfairness, a prompt one-on-one identification is not so suggestive as to give rise to an irreparable likelihood of misidentification. Commonwealth v. Turner, 454 Pa. 520, 523, 314 A.2d 496, 498 (1974); Commonwealth v. Thomas, 372 Pa.Super. 349, 360, 539 A.2d 829, 835 (1988).

During the assault in the instant case, the victim had an opportunity to observe his assailant for more than four minutes in a well lighted area. He explained that his hesitation in making a positive identification of appellant at the hospital was the result of fear and intimidation. This one-on-one confrontation occurred less than two hours after the assault. The identification, despite what appeared to be an initial uncertainty, was positive. The suppression court found that it was not a result of police suggestiveness. This is fully supported by the record. The fact that the victim saw the weapon before seeing and identifying appellant did not constitute a special element of unfairness. McElrath v. Commonwealth, supra 405 Pa.Super. at 438, 592 A.2d at 743. The fact that appellant and his companions were in handcuffs also does not render the identification improper. Commonwealth v. Allen, 287 Pa.Super. 88, 104, 429 A.2d 1113, 1121 (1981); Commonwealth v. Perdie, 249 Pa.Super. 406, 410-411, 378 A.2d 359, 361 (1977). Finally, we find neither error nor abuse of discretion in the trial court’s finding that the police insistence on a definite identification response was not unduly suggestive. Although the police request was for a definitive response, it did not suggest that it was appellant who had committed the assault on Perdick.

Appellant also argues that his five year minimum sentence is “unconstitutionally disproportionate and irrational,” because aggravated assault is a lesser included offense of attempted murder and there is no mandatory minimum sentence for that crime. The Superior Court recently considered and rejected the same argument in Commonwealth v. Spells, 417 Pa.Super. 233, 612 A.2d 458 (1992). See also: Commonwealth v. Pendola, 416 Pa.Super. 568, 611 A.2d 761 (1992).

The judgment of sentence, therefore, is affirmed.

      . Brown was found not guilty of robbery.

      . Brown filed supplemental post-trial motions, but these also did not raise the legality of the arrest.

      . The testimony at the suppression hearing was as follows:
      Q. What occurred next?
      A. Next the three defendants were led to the complainant, at which time he indicated to me that it was possible that these were the people that robbed him. At that time he appeared to be frightened—
      Q. When you say—
      A. —apprehensive.
      Q. When you say it was possible, are you indicating you did not consider that positive identification at that point?
      A. That’s correct.
      Q. Did he say that to you in the presence of Officer Beren?
      MR. KUSHTO: Objection.
      THE COURT: If you recall.
      THE WITNESS: I don’t recall, sir.
      BY MR. BANK:
      Q. Now, after that what occurred next?
      A. The prisoners were led away from the immediate area of the complainant and I told the complainant that that would not be a good enough identification on these defendants. I said according to the law or whenever we get to court or whatever, you’re going to have to say it was definitely them or it was definitely not them. At which time he indicated that this defendant was the person who had the shotgun and did stab him.

      . Appellant was never charged with the crime of attempted murder.


author: WIEAND, Judge. CERCONE, Judge,

text:
    611 A.2d 1322
    Joseph FARRELL v. LECHMANIK, INC., Thomas A. Williams and Richard Wesley and R.C. Legnini Company, Inc. Appeal of R.C. LEGNINI COMPANY, INC.
    Superior Court of Pennsylvania.
    Argued March 11, 1992.
    Filed Aug. 19, 1992.

      O. Daniel Ansa, Philadelphia, for appellant.
    Alvin Freiberg, Philadelphia, for appellee Farrell.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   WIEAND, Judge.

Joseph Farrell was injured in November, 1989, when a concrete wall collapsed on him. At the time of the accident, Farrell was employed as a carpenter by R.C. Legnini Company, Inc. (Legnini) and was doing work at the residence of Thomas Williams in Rosemont, Montgomery County. Because of his injuries, Farrell was unable to work and was paid workmen’s compensation. His employment was abruptly terminated by Legnini on January 2, 1990. In April, 1990, Farrell filed an action for wrongful discharge against Legnini, which was settled on or about August 29, 1990.

Meanwhile, in May, 1990, Farrell commenced an action for his injuries against Williams, the owner of the home upon which the work was being done; Richard Wesley, the architect; and Lechmanik, Inc., an excavator who was working on the job pursuant to subcontract with Legnini. Wesley and Williams joined Legnini as an additional defendant in this action, alleging that Legnini had agreed to indemnify them for any damages which they might be required to pay to Farrell. Legnini filed an answer to these complaints and, as new matter, asserted a claim against Farrell for indemnification against any damages which it might be required to pay to Williams and/or Wesley. The basis for this claim was language contained in the release which had been executed in the wrongful discharge action by which Farrell agreed to “release and indemnify” Legnini

from any and all actions and causes of action, claims and demands, suits, ... in law or in equity (hereinafter referred to collectively as “Claims”), now known or accrued which he or anyone claiming by, through or under him in any way has, might have or could have claimed against Legnini in a lawsuit captioned Joseph Farrell v. R.C. Legnini Company, Inc., filed in the Court of Common Pleas, Chester County, No. 90-02736 [wrongful discharge suit], said lawsuit to be dismissed with prejudice, and all other Claims against Legnini arising from Farrell’s employment by Legnini, including Claims which could be asserted by third parties as a result of Claims asserted by Farrell.

To the claim thus made, Farrell filed preliminary objections in the nature of a demurrer. The agreement of release and indemnity, he argued, had contemplated only the wrongful discharge action and did not pertain to his action for personal injury or to any agreements of indemnity which Legnini may have executed in favor of Williams or Wesley. The trial court agreed and, by order dated April 8, 1991, dismissed Legnini’s claim against Farrell. Legnini appealed.

As a general rule, releases encompass only such matters as may fairly be said to have been within the contemplation of the parties when the release was given. In Sparler v. Fireman’s Ins. Co. of Newark, N.J., 360 Pa.Super. 597, 521 A.2d 433 (1987), the Superior Court said:

Written releases are construed according to the rules governing the construction of contracts generally. 76 C.J.S. Release § 38 (1952). A release normally covers only such matters as can fairly be said to have been within the contemplation of the parties when the release was given. Estate of Bodnar, 472 Pa. 383, 387, 372 A.2d 746, 748 (1977); In re Jones & Laughlin Steel Corp., 328 Pa.Super. 442, 456-457, 477 A.2d 527, 534 (1984); Gateway Center Corp. v. Merriam, 290 Pa.Super. 419, 425, 434 A.2d 823, 826 (1981). The intention of the parties to a written release is paramount, and in construing a release, a court should adopt an interpretation which, under all the circumstances, “ascribes the most reasonable, probable and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.” General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 168, 199 A.2d 540, 543 (1964). See: Unit Vending Corp. v. Lacas, 410 Pa. 614, 617, 190 A.2d 298, 300 (1963); Village Beer and Beverage, Inc. v. Vernon D. Cox and Co., 327 Pa.Super. 99, 107, 475 A.2d 117, 121 (1984). Although a court will not relieve the parties of the effect of an improvident contract, it must not allow a “rigid literalness” to be used to create an improvident contract for the parties contrary to their intent. Mowry v. McWherter, 365 Pa. 232, 238, 74 A.2d 154, 158 (1950). Thus, the words of a release “should not be construed to extend beyond the express consideration mentioned so as to make a release for the parties which they never intended or contemplated.” Brill’s Estate, 337 Pa. 525, 527, 12 A.2d 50, 52 (1940). See: Furtek v. West Deer Township, 19 Pa.D. & C.2d 169, 178, aff’d, 191 Pa.Super. 405, 156 A.2d 581, 585 (1959).

Id., 360 Pa.Super. at 601, 521 A.2d at 434-435. There, the plaintiff had executed a general release in connection with the settlement of a claim for personal injuries against the driver of the vehicle which had collided with him. He made a subsequent claim against his own insurance carrier for underinsured motorist benefits provided for by his contract of insurance. The carrier asserted in defense the release which the plaintiff had executed in favor of the third party tortfeasor. Therefore, a subsequent declaratory judgment proceeding was brought to determine whether the terms of the release barred an action for underinsured motorist benefits. The Superior Court held that the claim was not barred by the release. Observing that the claim for under-insured motorist benefits was a separate claim based on contract, the Court reasoned that “[to] interpret the release as discharging Fireman’s alleged contractual obligations, under [the] circumstances, would be to insert a benefit for which no separate consideration [had been] paid and which [did] not appear to have been within the contemplation of the parties.” Id., 360 Pa.Superior Ct. at 602, 521 A.2d at 435.

The reasoning of Sparler is equally applicable to the agreement of release and indemnity executed by Farrell in the instant case. Farrell's wrongful discharge action had sought to enforce a claim which was entirely different than the claim for personal injuries, which was based on the negligence of a third party tortfeasor.

To imply from the release in the wrongful discharge action an agreement by Farrell to indemnify Legnini against a potential liability which Legnini had assumed by contracts of indemnity with third persons would be wholly unreasonable. It would be to insert a benefit for which no separate consideration had been paid and which did not appear to be within the contemplation of the parties.

Appellant argues, however, that Farrell’s agreement to indemnify against all other claims made “against Legnini arising from Farrell’s employment by Legnini, including claims which could be asserted by third persons as a result of claims asserted by Farrell” is unambiguous and supports the claim asserted in Legnini’s pleading. We disagree. The claims made against Legnini by Williams and Wesley do not arise by virtue of Farrell’s employment by Legnini but only because of separate agreements which Legnini may have executed with such third persons.

For these reasons, the trial court correctly held that Legnini, the additional defendant, had failed as a matter of law to state a cause of action against Farrell, the plaintiff, for indemnification against liability, if any, which Legnini had assumed by agreements with two of the defendants. The order sustaining preliminary objections in the nature of a demurrer to Legnini’s claim against Farrell, therefore, must be affirmed.

Order affirmed.

CERCONE, J., files a dissenting opinion.

CERCONE, Judge,

dissenting.

I must respectfully dissent from the majority’s compelling analysis of the pertinent release language in this case. I am constrained to find that the language used in the release between appellant Legnini and appellee Farrell is not so clear as to require affirmance of the trial court’s grant of preliminary objections.

The majority establishes the pertinent law in this area with precision. It is also true, however, that the effect of a release must be determined from its language. The ordinary meaning must be attributed to the language, unless a different meaning was clearly intended. Vogel v. Berkley, 354 Pa.Super. 291, 297, 511 A.2d 878 (1986) (citing Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967)). With this in mind, I find that the release language used in this case is susceptible to varying constructions and a jury should decide what the parties intended by the release.

It is well established that a contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 201, 519 A.2d 385, 389 (1986). In this case, I find two different constructions of the release language. One construction is that which the majority has propounded — that the release only applies to any claims arising from the wrongful discharge suit. I find, however, that the release is also subject to the construction which appellant contends (i.e., appellee agreed to indemnify appellant for all claims arising from his employment ). This position is bolstered by express language used in the release which otherwise would not have been included. First, had the parties wished to limit the release to claims resulting from the wrongful discharge, they could have used language which restricted its scope. Cf. Vogel v. Berkley, supra (release agreement which discharged all claims arising from “above-described dispute” was unambiguous).

This writer is also mindful that the words of the release should not be construed to extend beyond the express consideration mentioned so as to make a release for the parties which they never intended or contemplated. Sparler v. Fireman’s Insurance Company of Newark, N.J., 360 Pa.Super. 597, 601, 521 A.2d 433, 435 (1987) (en banc), allocatur denied, 518 Pa. 613, 540 A.2d 535 (1988). However, the limitation of the release to claims arising from the wrongful discharge becomes a non sequiter in the face of the additional language which requires appellee to release and indemnify “[cjlaims which could be asserted by third parties as a result of Claims asserted by Farrell.” I find it difficult to envision claims appellee could assert against third parties arising in the context of a wrongful discharge action. Such suits naturally involve only the master and servant. Moreover, I am unable to accept the majority view, which states:

“[t]o imply from the release in the wrongful discharge action an agreement by Farrell to indemnify against a potential liability which Legnini had assumed by contracts of indemnity with third persons would be wholly unreasonable. It would be to insert a benefit for which no separate consideration had been paid and which did not appear to be within the contemplation of the parties.”

Majority opinion at 176-177. There is no indication in the record of this case of what consideration was paid in order to secure the settlement agreement and the contemporaneously executed release. Moreover, the majority overly concerns itself with the release between Legnini and the other defendants, rather than with the release at issue.

Finally, I must note that the settlement agreement and negotiation were entered into while the separate negligence suit was pending. It is quite plausible that appellant sought to insulate itself from further liability to Farrell as appellant had already settled with him.

Because the language of the release is conflicting, I would find the release sufficiently ambiguous to require a trial to ascertain the parties’ intent. Hutchison v. Sunbeam Coal Corp., 513 Pa. at 201, 519 A.2d at 390. I would therefore reverse the order of the trial court sustaining appellee’s preliminary objections.