author: WIEAND, Judge: POPOVICH, Judge,

text:
    600 A.2d 577
    COMMONWEALTH of Pennsylvania v. Michale J. ANDERSON, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Submitted Sept. 3, 1991.
    Filed Dec. 11, 1991.

      Shelly Stark, Chief, Appellate Division, Asst. Public Defender, Pittsburgh, for appellant.
    Edward M. Clark, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before WIEAND, KELLY and POPOVICH, JJ.
   WIEAND, Judge:

Michale J. Anderson was tried by jury and was found guilty of first degree murder and theft in connection with the strangulation and stabbing death of seventeen year old Karen Hurwitz and the taking of an automobile belonging to her father. Post-trial motions were denied, and Anderson was sentenced to serve a mandatory sentence of life imprisonment for first degree murder, as well as a consecutive term of imprisonment for not less than three and one-half (3V2) years nor more than seven (7) years for theft. On direct appeal from the judgment of sentence, Anderson argues that the trial court improperly charged the jury that the first two elements of first degree murder had been established beyond a reasonable doubt, thereby directing a verdict as to those elements. He additionally contends that his trial counsel was constitutionally ineffective for failing to present the testimony of a psychiatric expert in support of the diminished capacity defense which he utilized at trial.

“In reviewing jury instructions to determine whether reversible error has been committed by a trial court, we consider the charge as a whole. Error will not be predicated on isolated excerpts. Rather, it is the general effect of the charge that controls.” Commonwealth v. Myers, 376 Pa.Super. 41, 50, 545 A.2d 309, 314 (1988). See also: Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983), cert. denied, 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986); Commonwealth v. Bowers, 400 Pa.Super. 377, 392, 583 A.2d 1165, 1172 (1990). “Jury instructions will be upheld if they adequately and accurately reflect the law and are sufficient to guide the jury properly in its deliberations.” Commonwealth v. Johnson, 368 Pa.Super. 427, 430, 534 A.2d 511, 512 (1987). See also: Commonwealth v. Person, 345 Pa.Super. 341, 345, 498 A.2d 432, 434 (1985); Commonwealth v. Cimorose, 330 Pa.Super. 1, 10, 478 A.2d 1318, 1323 (1984).

The portion of the jury charge at issue in the instant case is as follows:

First degree murder is a murder in which the killer has the specific intent to kill.
You may find a defendant guilty of first degree murder if you are satisfied that the following three elements have been proven beyond a reasonable doubt by the Commonwealth. First, that the victim Karen Hurwitz is dead. Secondly, that the defendant killed her. And thirdly, that the defendant did so with the specific intent to kill with malice.
Obviously, ladies and gentlemen, the first two have been proven beyond a reasonable doubt, I’m sure. There’s no question about those. The one that you really have to consider here is the third element, that the defendant did so, did this killing, with the specific intent to kill and with malice.

Appellant argues that, by instructing the jury that the first two elements of first degree murder had been established beyond a reasonable doubt, the trial court usurped the jury’s fact finding role and, in effect, directed a verdict with respect to those elements. We disagree.

At trial, it was conceded by the defense that appellant had killed the victim. In both his opening and closing statements, defense counsel told the jury that it was undisputed that appellant had killed the victim. Counsel argued, however, that appellant had lacked the specific intent to kill which was necessary for a finding of first degree murder. Such a diminished capacity defense concedes general criminal liability, but argues that the defendant was incapable of forming the specific intent to kill. Commonwealth v. Faulkner, 528 Pa. 57, 70 n. 4, 595 A.2d 28, 35 n. 4 (1991); Commonwealth v. Walzack, 468 Pa. 210, 221, 360 A.2d 914, 919-920 (1976).

Because appellant admitted the killing and contested only the degree of guilt, the trial court did not err when it told the jury that the victim was dead and that appellant had killed her. See: Commonwealth v. Schultz, 170 Pa.Super. 504, 511-512, 87 A.2d 69, 72 (1952), cert. denied, 344 U.S. 868, 73 S.Ct. 111, 97 L.Ed. 673 (1952) (in prosecution for burglary, larceny and receiving stolen goods, where fact that crime occurred was undisputed and only issue being contested was defendant’s connection with crime, trial court did not err by charging jury that identity of property, its location and fact it was stolen were fairly well proven). Moreover, by instructing the jury that it should focus on whether appellant had acted with malice and with the specific intent to kill, the court fulfilled its principal duty of “clarifying] the issues so that the jury [might] understand the questions to be resolved.” Commonwealth v. Newman, 323 Pa.Super. 394, 402, 470 A.2d 976, 980 (1984). See also: Commonwealth v. Beach, 438 Pa. 37, 40, 264 A.2d 712, 714 (1970); Commonwealth v. Mayfield, 401 Pa.Super. 560, 573, 585 A.2d 1069, 1075 (1991) (en banc).

In Commonwealth v. Walker, 459 Pa. 12, 326 A.2d 311 (1974), the defendant was charged with murder in connection with the shooting of a man inside a Philadelphia bar. The owner of the bar, who knew the defendant well, identified him as the perpetrator. The defendant, however, claimed to have been at home, asleep, at the time of the shooting. In its charge to the jury, the trial court stated that there was no question about identification. On appeal, the defendant asserted that the court had usurped the jury’s fact finding function by removing from its consideration the issue of identification. The Supreme Court rejected this argument, reasoning as follows:

The challenged statement was merely an attempt to narrow the issues for the jury’s consideration. In view of the length of time that appellant was alleged to have been in the bar and subject to observation by Mr. Jones, who by virtue of their prior relationship would have no difficulty in recognizing the appellant, the question of mistaken identity was clearly not in the case. As the trial judge properly pointed out, the case essentially turned upon the credibility of irreconcilably conflicting testimony. In such a situation, it was clearly proper for the trial judge to exercise his right to clarify the issues for jury.

Commonwealth v. Walker, supra, 459 Pa. at 16, 326 A.2d at 313 (citations omitted). So too in the instant case, the trial court will not be faulted for identifying for the jury the central issue to be decided.

Moreover and in any event, a review of the trial court’s jury instructions in their entirety is persuasive that no part of the jury’s function was usurped by the court, which left it to the jury to determine whether all elements of the crime of murder had been established beyond a reasonable doubt. The court told the jury that appellant was presumed to be innocent, that the Commonwealth had the burden of proving each and every element of the offense charged beyond a reasonable doubt, and that it was solely the jury’s function to decide all issues of fact. Finally, the court told the jury that it could find the defendant not guilty or guilty of the several degrees of homicide. We conclude, therefore, that there is nothing in the court’s jury instructions that would entitle appellant to a new trial.

In evaluating claims of ineffective assistance of counsel, we employ an analysis as set forth by the Supreme Court in Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989) as follows:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Id., 522 Pa. at 4-5, 559 A.2d at 505. See also: Commonwealth v. Rollins, 525 Pa. 335, 344, 580 A.2d 744, 748 (1990); Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). Additionally, “[bjecause the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant.” Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). See also: Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986).

In the instant case, appellant’s only defense at trial was that, because of mental illness, he had been acting under a diminished capacity which prevented him from forming a specific intent to kill. However, trial counsel presented no expert testimony in support of this defense. Appellant contends that this failure rendered counsel ineffective.

The law is clear that counsel’s failure “to interview witnesses whose testimony could prove beneficial and exculpatory to the defendant’s case can constitute ineffective assistance of counsel if no reasonable basis otherwise exists for counsel’s failure.” Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983). See also: Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). Moreover, “[w]hen the only issue is appellant’s state of mind, trial counsel’s decision not to present relevant psychiatric and psychological testimony which may be determinative of the issue can be as damaging to the truthfinding process as the failure in other contexts to present the testimony of an available eyewitness, alibi witness, or other key witness.” Commonwealth v. Potts, 486 Pa. 509, 513, 406 A.2d 1007, 1009 (1979) (plurality opinion). See also: Commonwealth v. Stewart, 304 Pa.Super. 382, 388-389, 450 A.2d 732, 735 (1982); Commonwealth v. Sirianni, 286 Pa.Super. 176, 185-186, 428 A.2d 629, 634 (1981).

The Pennsylvania Supreme Court has consistently held that expert psychiatric testimony is admissible to negate the specific intent to kill which is essential to first degree murder. See: Commonwealth v. Terry, 513 Pa. 381, 521 A.2d 398 (1987), cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987); Commonwealth v. Garcia, 505 Pa. 304, 479 A.2d 473 (1984); Commonwealth v. Walzack, supra. In this regard, the Supreme Court has said:

[P]sychiatric testimony relevant to the cognitive functions of deliberation and premeditation is competent on the issue of specific intent to kill. Thus psychiatric testimony is competent in Pennsylvania on the issue of specific intent to kill if it speaks to mental disorders affecting the cognitive functions necessary to formulate a specific intent.

Commonwealth v. Weinstein, 499 Pa. 106, 114, 451 A.2d 1344, 1347 (1982). See also: Commonwealth v. Terry, supra, 513 Pa. at 394, 521 A.2d at 404.

In support of his claim of ineffectiveness, appellant has affixed to his brief affidavits from two psychiatrists. The affidavit of Dr. Robert Wettstein states, inter alia, that:

6. I would have been available and willing to examine Michael J. Anderson and to testify as an expert at his trial if requested.
7. Based upon my recent examination of Michael J. Anderson, I conclude with a reasonable degree of medical certainty that he suffers from manic depressive illness which can affect cognitive functioning as well as his ability to premeditate and deliberate the offense in question.
I have diagnosed Michael J. Anderson as suffering from a bipolar disorder with episodes of mania and depression---- His past episodes of mania were characterized by euphoria, excessive activity, lack of sleep, inappropriate spending, increased sexual activity, increased grandiosity, perceptual distortions such as hallucinations (auditory, visual, and tactile), racing thoughts, impaired attention and concentration, increased speech, reduced appetite, chaotic lifestyle, and inability to function at school. His depressed episodes were characterized by periods of predominantly and persistently depressed mood, feelings of worthlessness, and suicide ideation with a previous suicide attempt with a handgun in 1988. According to the history provided, there is also evidence that at the time of the alleged offense, the defendant was experiencing cognitive impairment consisting of impaired concentration and thinking, perceptual disturbances (tactile, visual, and auditory), hyperalertness, and irrational and disorganized behavior. Earlier in the day there was evidence of a manic episode with symptoms noted above.

The affidavit of Dr. Gary Vallano in pertinent part is as follows:

5. During my assessment of Michael Anderson, I diagnosed him as suffering from bipolar disorder and the symptoms reflecting this illness are filed in the Health Services Progress Notes at Shuman Center. I based this diagnosis on the history presented to me b[y] Michael Anderson and his mother. This history includes a report by Michael of depressive symptoms including sleep difficulties, suicide ideation, decreased energy, depressed mood, and a suicide attempt. During at least one of these episodes Michael experienced psychotic symptoms including derealization, depersonalization, and visual and auditory hallucinations. These resulted in a suicide attempt and hospitalization at St. Francis Hospital according to Michael. Additionally, Michael reports episodes of decreased need for sleep, grandiosity, irritability, mood lability, increased speed of thoughts, and feelings that things are not real.
6. His mother reported a similar history of mood lability and fluctuations in Michael. She also reports a strong family history of bipolar disorder in Michael’s twin sister, his maternal grandfather, and at the time of the discussion with her she was being assessed for similar difficulties in mood fluctuation. This information and my observations of Michael Anderson at Shuman Center provide the basis for my diagnosis.
7. Had I been subpoenaed to Michael Anderson’s trial, I would have honored the subpoena and would have testified if requested to do so that he suffered from bipolar disorder with psychotic features. This disorder could [a]ffect his cognitive functioning during acute episodes. The psychiatric evidence appearing in the affidavits of

Dr. Wettstein and Dr. Vallano would have been relevant if offered at appellant’s trial. It was of a nature which, if believed, would have tended to reduce the degree of appellant’s crime. Therefore, we are constrained to conclude that there is arguable merit in appellant’s contention that trial counsel was ineffective for failing to present psychiatric testimony in support of a diminished capacity defense. However, because there has not yet been an evidentiary hearing to determine whether trial counsel had a reasonable basis for failing to present psychiatric testimony regarding appellant’s mental illness, we cannot determine on the present state of the record whether appellant was denied effective assistance of counsel. “When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the [trial court] to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, [the Superior] Court will remand for such a hearing.” Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987). See also: Commonwealth v. McBride, 391 Pa.Super. 113, 121, 570 A.2d 539, 543 (1990); Commonwealth v. Copeland, 381 Pa.Super. 382, 397, 554 A.2d 54, 61 (1988).

The judgment of sentence is vacated, at least for the time being, and the case is remanded for an evidentiary hearing to determine if a reasonable basis existed for trial counsel’s failure to present expert psychiatric evidence for the purpose of reducing the degree of appellant’s guilt. If counsel is found to have been ineffective, a new trial must be granted. If counsel was not ineffective, however, the judgment of sentence may be reimposed. Jurisdiction is not retained meanwhile.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I cannot join in the Majority’s determination to vacate the judgment of sentence and remand for an evidentiary hearing on a claim of trial counsel’s alleged ineffectiveness. Also, I find it appropriate to address the appellant’s assertion attributing the trial court with the commission of reversible error with regard to a portion of the jury charge.

Because the appellant does not challenge the sufficiency of the evidence, I begin my inquiry by observing that the charges filed against the appellant stem from the strangulation and stabbing death of seventeen-year-old Karen Hurwitz.

At the commencement of the jury trial, counsel for the appellant stated in his opening remarks that his job was to defend the appellant for “an act ... he admitted] that he committed”, i.e., “one 17-year-old [the appellant] took the life of another 17-year-old. And nobody [wa]s disputing that.” It was defense counsel’s belief that the appellant “couldn’t control” himself in the early morning hours of October 27, 1989, when the crimes were committed. As counsel vocalized it: A “rage came over [the appellant] ... [and i]t just so happened that ... Karen Hurwitz was there and was the recipient of his rage.” This, argued defense counsel, negated the specific intent necessary to convict his client of first degree murder.

Once the Commonwealth’s case-in-chief had been presented, which depicted a brutal, senseless killing of Ms. Hurwitz, the defense produced the testimony of Frank Marshall, a youth worker at a detention center for juveniles (Shuman Center), who had spoken to the appellant the day after his arrest.

Marshall recalled that the appellant heard voices directing him to kill Ms. Hurwitz, which he carried out by means of strangulation and the repeated stabbing of the victim with a thirty-six-inch “Ninja” sword. When Marshall inquired why the appellant had killed the victim, he was told: “I don’t know”. Additionally, the appellant stated: “Whenever I fe[e]l[ ] that I am going to get into some kind of trouble, I w[ill] put on the Clockwork Orange T-shirt.” The appellant was wearing such a T-shirt on the evening in question, and defense counsel argued that the wearing of the T-shirt and his client's viewing of the movie (which was played for the jury at trial) were indicia that the appellant was “out of control” when the killing was committed so as to negative the specific intent needed to convict for murder in the first degree.

Once the jury had been charged, it took less than two hours to find the appellant guilty. Following the denial of post-verdict motions, a life sentence was imposed for the first degree murder conviction, while a consecutive term of seven and one-half to fifteen years imprisonment was ordered on the theft charge.

Two issues are raised by counsel. The first avers that the trial court committed reversible error when it directed the jury that two elements of first degree murder had been established beyond a reasonable doubt. Specifically, with respect to murder of the first degree, the trial court instructed the jury that the prosecution was required to prove three distinct elements: first, the victim was dead; second, the defendant killed the victim; and, third, the defendant did so with a specific intent and with malice. The court went on to observe that:

Obviously, ladies and gentlemen, the first two have been proven beyond a reasonable doubt, I’m sure. There’s no question about those. The one that you really have to consider here is the third element, that the defendant did so, did this killing, with the specific intent to kill and with malice.

N.T. 5/18-21/90 at 224.

It is the appellant’s position that the instruction relieved the prosecution of having to prove every essential element of first degree murder; to-wit: “‘By placing a judicial imprimatur’ on the prosecution’s proof ‘with respect to an element of the offense, the faulty instruction directed a partial verdict for the prosecution, ensuring that the jury would not find every essential element beyond a reasonable doubt.’ ” In other words, the appellant argued that the “ ‘wrong entity judged the defendant guilty,’ thereby rendering the trial fundamentally unfair.” Appellant's Brief at 19. I disagree and take my direction from the United States Supreme Court ruling in Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).

Rose involved a double murder witnessed by the children of one of the victims. The police were told by the children that Stanley Clark had shot their mother and another man.

At trial, one of Clark’s defenses was that of diminished capacity. In its charge to the jury, the trial court instructed on the elements of first- and second-degree murder, the latter of which required proof of malice and was defined as “an intent to do any injury to another____” The trial court then charged the jury:

“All homicides are presumed to be malicious in the absence of evidence , which would rebut the implied presumption. Thus, if the State has proven beyond a reasonable ... doubt that a killing has occurred, then it is presumed that the killing was done maliciously. But this presumption may be rebutted by either direct or circumstantial evidence, or by both, regardless of whether the same be offered by the Defendant, or exists in the evidence of the State.”

478 U.S. at 574, 106 S.Ct. at 3104.

Clark was found guilty of first degree murder in the killing of the female and second degree murder for the killing of the male. The state court affirmed, but a federal district court reversed on the ground that the malice instruction violated Clark’s right to have his guilt established beyond a reasonable doubt under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (instruction creating presumption of malice, which shifted the burden of proof of “intent” to the defendant, violates due process).

The Court of Appeals for the Sixth Circuit affirmed, despite substantial evidence of Clark’s guilt, because the erroneous burden-shifting instruction was not harmless error.

On appeal the judgment of the Court of Appeals was vacated and the case was remanded. To justify its actions, the United States Supreme Court wrote:

... if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis. The thrust of the many constitutional rules governing the conduct of criminal trials is to insure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed. As we have repeatedly stated, “the Constitution entitles a criminal defendant to a fair trial, not a perfect one.”

478 U.S. at 579, 106 S.Ct. at 3106 (Citations omitted). Placed in the preceding context, the Court found that the error — an instruction that impermissibly shifted the burden of proof on malice — was not “so basic to a fair trial” that it could never be harmless. Id. at 580.

Even where the defendant contested intent, and a presumption of malice instruction was given, the harmless error standard was appropriate as a tool to assess the claim. The reasoning for adhering to such a formula, in evaluating an instruction challenged as erroneous, was stated as follows:

... our harmless-error cases do not turn on whether the defendant conceded the factual issue on which the error bore. Rather, we have held that “Chapman mandates consideration of the entire record prior to reversing a conviction for constitutional errors that may be harmless.” The question is whether, “on the whole record ... the error ... [is] harmless beyond a reasonable doubt.” See also Chapman [v. State of California] 386 U.S. [18] at 24, 87 S.Ct. [824] at 828 [17 L.Ed.2d 705] (“[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt”); Connecticut v. Johnson, 460 U.S. [73] at 97, n. 5, 103 S.Ct. [969] at 983, n. 5 [74 L.Ed.2d 823] (POWELL, J., dissenting) (in cases of Sandstrom error, “the inquiry is whether the evidence was so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption").

478 U.S. at 583,106 S.Ct. at 3109 (Citations omitted; emphasis added).

In applying these principles to the case at bar, I would hold that the appellant received a full opportunity to place into evidence and make argument to support his claim of diminished capacity. Moreover, counsel for the appellant in his opening and closing remarks conceded that his client committed the murder; the prosecution produced the appellant’s written and taped confessions; and the appellant’s own witness (Frank Marshall) recounted how the accused told of the events surrounding the murder.

Apart from the challenged first degree murder charge, the jury in this case was instructed clearly that it had to find the appellant guilty beyond a reasonable doubt as to every element of first-, second- and third-degree murder. When placed in the proper perspective, the erroneous first degree murder instruction does not compare with the kinds of errors that automatically require reversal of an otherwise valid conviction. 478 U.S. at 579-580, 106 S.Ct. at 3106-07.

My inquiry has focused on whether the evidence was so dispositive of the first two elements of the three necessary to establish murder in the first degree (i.e., death of victim and the defendant’s admission to the killing) that it can be said beyond a reasonable doubt that the jury would have found it unnecessary to rely on the erroneous instruction. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). Thus, the fact that the appellant “admitted” (through his counsel’s opening and closing remarks, written and taped confessions and a defense witness) to the first two elements necessary to establish the crime of murder in the first degree (death and complicity), disposition under the harmless error rule is proper and buttresses my conclusion that no error was committed by the trial court. Id.

The second issue, raised by counsel unassociated with prior counsel, claims that trial counsel was ineffective in failing to produce evidence to support a diminished capacity defense, e.g., two psychiatrists (Drs. Yallano and Wettstein) would have testified to his alleged manic-depressive condition. Although trial counsel sought a continuance to produce Dr. Vallano, the trial court denied the request on the ground that trial counsel “had plenty of time to prepare” the case, and his eleventh hour request for a postponement would not be granted.

It is undisputed that:

[P]sychiatric testimony relevant to the cognitive functions of deliberation and premeditation is competent on the issue of specific intent to kill. Thus psychiatric testimony is competent in Pennsylvania on the issue of specific intent to kill if it speaks to mental disorders affecting the cognitive functions necessary to formulate a specific intent.

Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344, 1347 (1982). As for whether trial counsel was ineffective in failing to produce psychiatric evidence to support the appellant’s diminished capacity defense, we are required first to determine whether the claim is of arguable merit. If so, we need to inquire whether trial counsel may have had some reasonable basis to forego the underlying claim. And, having satisfied the first two prongs, we are then required to determine if the ineffectiveness of counsel prejudiced the defendant. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

No one disputes that trial counsel’s failure to produce “available” psychiatric and psychological testimony, where the only issue at trial is of a defendant’s state of mind, has been held to have no reasonable basis designed to effectuate a client’s best interest, and, consequently, warrants a new trial to remedy the nonfeasance. See Commonwealth v. Potts, 486 Pa. 509, 406 A.2d 1007 (1979). However, I conclude that trial counsel’s failure to produce Dr. Robert Wettstein is not indicative of ineffectiveness.

Even the appellant’s counsel notes that Dr. Wettstein “has [only] now examined” the appellant and reviewed his psychiatric history to conclude that he suffers from manic-depressive illness, i.e., after the trial had concluded. This post hac presentment of Dr. Wettstein excludes him and his diagnosis from the sphere of “available” evidence accessible to counsel prior to trial. Therefore, trial counsel cannot be labelled ineffective. Id.

As for Dr. Vallano’s proffered diagnosis of the appellant’s bipolar disorder, I would note that this evaluation was made while the appellant was awaiting trial (on April 20, 1990) at the Shuman Center. I agree with the Commonwealth that the appellant’s offer of proof nowhere represents that Dr. Vallano would have testified that, “within a reasonable degree of medical certainty”, the appellant on the day and time of the criminal incident was suffering from a bipolar episode which impaired his ability to kill Karen Hurwitz. See Appendix C attached to the Appellant’s Brief; Commonwealth’s Brief at 16; cf. Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687 (1991).

For the reasons herein stated, I would affirm the judgment of sentence.

      . "A Clockwork Orange” was a movie directed by Stanley Kubrick in which a group of teenagers, for no apparent reason, committed brutal crimes against people.

      . All of the witnesses who had been in the appellant’s company immediately preceding or subsequent to the killing described him as appearing "normal’’ and exhibiting no signs reflective of a mental disorder. See N.T. 6/18-21/90 at 64 (Derek Eugene Scott, III); id. at 74 (Rajeev Duckett); id at 99 (Katherine A. Berlin); id. at 103, 106-107 (Marissa Rhodes); id at 155-156 (Detective Terrence P. O’Leary).


source: Caselaw Access Project

author: HUDOCK, Judge: WIEAND, Judge,

license: Public Domain

text:
    600 A.2d 585
    CHRISTOPHER’S AUTO PARTS, INC., Appellee, v. Debbie GILMORE and Mel Shaw. Appeal of Mel SHAW.
    Superior Court of Pennsylvania.
    Submitted May 24, 1991.
    Filed Dec. 12, 1991.
    Veronica C. Boda, Philadelphia, for appellant.
    Angelo J. Foglietta, Asst. City Sol., Philadelphia, for appellee.
    Before WIEAND, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from an order reinstating an arbitration award, pursuant to Pa.R.C.P. 218(b)(2), 42 Pa.C.S.A., (Purdon Supp.1991), following Mel Shaw’s (Appellant) failure to appear for the trial de novo. We reverse and remand.

On July 21, 1989, Appellee filed a complaint alleging Appellant failed to pay for auto parts supplied by Appellee. After preliminary objections were dismissed, Appellant filed his answer. Compulsory arbitration took place, and an award was entered in favor of Appellee and against Appellant. Appellant appealed from the arbitration award for a trial de novo, and an order dismissing the appeal and reinstating the arbitration award was entered September 11, 1990 when Appellant failed to appear for trial. Appellant perfected a timely appeal to this Court.

We note initially that Pa.R.C.P. 218, 42 Pa.C.S.A., was amended recently. The amendment provides, in pertinent part:

(b) If without satisfactory excuse a defendant is not ready, the plaintiff may
# * # * # #
(2) if the case called for trial is an appeal from compulsory arbitration, either proceed to trial or request the court to dismiss the appeal and reinstate the arbitration award.

Pa.R.C.P. 218(b), 42 Pa.C.S.A. (emphasis added). The explanatory comment which follows this rule reads:

The situation occurs where the defendant appeals an award in compulsory arbitration in favor of the plaintiff but does not appear for the trial de novo. A burden is placed upon both the plaintiff and the court system to retry the case despite the disinterest of the defendant. Further, the necessity to retry the case is far different from the penalty in the converse situation in which the plaintiff files the appeal and then fails to appear. In that instance, the penalty upon the plaintiff is a nonsuit or a non pros. The amendment to Rule 218 solves the problem by giving the plaintiff the option of trying the case a second time or having the appeal dismissed and the arbitration award reinstated.

Pa.R.C.P. 218, Explanatory Comment 1990 (Purdon Supp. 1991). Rule 218(b)(2) became effective July 1, 1990. The trial court’s order was entered on September 11, 1990 and is therefore covered by this new section. Appellant argues that we should exercise our equitable powers and open the judgment. Under the plain language of the rule, we cannot do this at this stage in the proceedings.

The record before us indicates that the trial judge ordered reinstatement of the arbitration award when the case was called for trial. This was done without first ascertaining whether Appellant was absent without a satisfactory excuse. In a recent en banc decision, we held that under Pa.R.C.P. 218(a), 42 Pa.C.S.A., it is an abuse of discretion for the trial judge to enter a non pros judgment based merely on the absence of one party without ascertaining whether the absent party had a satisfactory excuse. Elcomp, Inc. v. Drolet, 398 Pa.Super. 421, 581 A.2d 203 (1990). The language of Rule 218(a) reads:

Where a case is called for trial, if without satisfactory excuse a plaintiff is not ready, the court may enter a nonsuit on motion of the defendant or a non pros on the court’s own motion.

Pa.R.C.P. 218(a), 42 Pa.C.S.A. (emphasis added).

We find the language of subdivisions (a) and (b) to contain the same phrase, “without satisfactory excuse”, and a similar result, therefore, is required in each situation. There is nothing in the record before us to indicate that the trial court considered whether the Appellant had a satisfactory excuse. The dissent argues that, due to a factual distinction, our case is not controlled by Elcomp. The dissent argues that in Elcomp a hearing was held on October 18, 1988, which considered whether the appellant had a satisfactory excuse for its absence. We specifically ruled, however, that Elcomp’s motion to reinstate the case did not meet the requirements of a motion to open judgment. We, therefore, properly considered the appeal as one from the October 12, 1988, non pros judgment, and not an appeal from any subsequent hearing on an improper motion. Elcomp, 398 Pa.Superior Ct. at 422, n. 1, 581 A.2d at 204, n. 1. We therefore considered only the evidence before the Court at the time of the non pros judgment. Therefore, Elcomp stands for the proposition that before a non pros judgment may be entered, some sort of fact-finding must take place to determine whether the appellant was absent without satisfactory excuse. This was not done in the present situation. Indeed, the trial judge indicated in his 1925(a) opinion that no fact-finding took place. Based qn the plain language of the rule, and our Court’s recent interpretation of that language in Elcomp, the trial court did abuse its discretion in reinstating the arbitration award without first conducting the necessary fact-finding to determine whether Appellant’s absence was explained by satisfactory excuse. We reiterate what we said in Elcomp, “[wjithout considering the possibility of a satisfactory excuse for Elcomp’s absence or prejudice to Drolet, the trial court could not properly exercise its discretion in this matter.” Elcomp, 398 Pa.Superior Ct. at 425, 581 A.2d at 205.

Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I dissent. The majority’s attempt to expand and then make procedural dogma of language unnecessary to the decision in Elcomp, Inc. v. Drolet, 398 Pa.Super. 421, 581 A.2d 203 (1990), ignores the intent of the recent amendment to Pa.R.C.P. 218(b) and creates an impossible obstruction to the efficient operation of trial courts and the speedy attainment of justice for innocent and conscientious litigants.

Christopher’s Auto Parts, Inc., plaintiff, commenced an action for the cost of goods allegedly sold to Debbie Gilmore and Mel Shaw. The case was submitted to compulsory arbitration, and the arbitrators entered an award in favor of Christopher’s Auto Parts and against Mel Shaw alone in the amount of $2,174.82. Shaw appealed and waived trial by jury. When the case was called for trial, however, Shaw failed to appear. Therefore, the trial court, on September 10, 1990, dismissed the appeal and reinstated the award of the arbitrators. Shaw did not move to open the proceedings in the trial court but filed an immediate appeal, which is now before this Court for disposition. He argues that this Court, applying equitable principles, should reverse the trial court, open the judgment entered on the award of arbitrators, and remand for trial.

A majority of this Court holds that the trial court erred when it dismissed Shaw’s appeal. It remands the case to the trial court to determine whether the appealing defendant may have had some reason for failing to appear for trial. In so doing, the majority gives appellant an unwarranted second chance to improve a record which now contains no explanation whatsoever for appellant’s failure to appear for the trial which he requested when he filed an appeal from compulsory arbitration.

The rule applicable to appellant’s failure to appear for trial is Pa.R.C.P. 218(b), as amended on April 4, 1990, effective July 1, 1990. This rule provides as follows:

(b) If without satisfactory excuse a defendant is not ready, the plaintiff may
(1) proceed to trial, or,
(2) if the case called for trial is an appeal from compulsory arbitration, either proceed to trial or request the court to dismiss the appeal and reinstate the arbitration award.

The Explanatory Comment is as follows:

I. Appeals from Compulsory Arbitration. The situation occurs where the defendant appeals an award in compulsory arbitration in favor of the plaintiff but does not appear for the trial de novo. A burden is placed upon both the plaintiff and the court system to retry the case despite the disinterest of the defendant. Further, the necessity to retry the case is far different from the penalty in the converse situation in which the plaintiff files the appeal and then fails to appear. In that instance, the penalty upon the plaintiff is a nonsuit or a non pros. The amendment to Rule 218 solves the problem by giving the plaintiff the option of trying the case a second time or having the appeal dismissed and the arbitration award reinstated.

Acting in reliance upon this rule, the trial court in the instant case dismissed the appeal and reinstated the arbitration award when Shaw failed to appear for trial. Since that time, Shaw has made no effort to explain his default and obtain relief from the trial court. Instead, he filed an immediate appeal in the Superior Court, where he asks that the proceedings be reopened by applying equitable principles. However, no equitable reasons appear anywhere in the record which this Court has been asked to review. Indeed, none have ever been presented.

The better procedure would have been for appellant to seek relief from the trial court. By proceeding in this manner, he could have established a record via hearing or depositions which, when relief was denied in the trial court, would have permitted meaningful appellate review. Presently, we have before us no such record. It cannot be said from the record before us that the trial court in any way abused its discretion when it did no more than follow a procedural rule adopted by the Supreme Court.

The decision in this case is not controlled by the decision in Elcomp, Inc. v. Drolet, supra. In that case the trial court had entered a non pros when the plaintiff failed to appear for trial. Thereafter, the plaintiff filed in the trial court a motion to reinstate the case. At a hearing thereon it was established that Elcomp had failed to appear because it believed the hearing to have been continued on Drolet’s motion after Elcomp’s counsel had agreed not to oppose such a motion. The record disclosed that counsel’s agreement to continue the hearing had never been called to the trial court’s attention. A majority of the Superior Court held, therefore, that the plaintiff-appellant had tendered a satisfactory excuse for failing to appear and that the trial court had erred in refusing to reinstate the action.

In the instant case, appellant made no effort to establish to the satisfaction of the trial court any excuse for his failure to appear for trial. He made no request whatsoever to the trial court for relief. As a consequence, the record before this Court discloses nothing but appellant’s failure to appear for trial. It discloses that no excuse, satisfactory or unsatisfactory, has ever been tendered to the trial court. Under these circumstances, it seems clear to me that the trial court did not err or commit an abuse of discretion by granting the plaintiff-appellee’s motion to dismiss the appeal.

The fallacy in the procedure followed by appellant and in the argument which he has made in this Court becomes even clearer when it is recalled that appellee, according to the provisions of R.C.P. 218(b), had the alternative option of retrying his case in appellant’s absence. If he had chosen this option and had recovered a verdict, appellant could not have filed an immediate appeal but would have been required to seek relief from the trial court via motion for post-trial relief. See: Pa.R.C.P. 227.1. In the absence of such a post-trial motion, not even a majority of this Court, I venture to say, would remand to give him an opportunity to explain his absence at the time of trial. Why then does the majority treat differently the appellant’s failure to seek post-trial relief where the innocent party elected to dismiss the appeal and reinstate the award of the arbitrators? Why, in this case, should this Court advise appellant regarding the procedure to be followed and, in so doing, give him the proverbial “second bite?”

The majority purports to base its grant of a “second bite” upon language appearing in Elcomp, Inc. v. Drolet, supra, which suggested that a trial court had abused its discretion when, pursuant to R.C.P. 218(a), it based a judgment of non pros upon the failure of a party to appear for trial. In such cases, the Elcomp court opined, the trial court must first ascertain the absent party’s reason or reasons for failing to appear. How this is to be done without the presence of the absent party the Court did not explain. Presumably, it would require an additional hearing, with full notice to the parties and findings of fact by the hearing court. Such a procedure, in my judgment, is unwarranted. Not only does it impair the efficient operation of the courts, but it also imposes an unfair burden on the innocent party. At the very least, the burden of escaping the consequences of a default should be placed on the party who has failed to appear for trial. In this manner, neither an innocent party who is present for trial nor the trial court will be prevented from proceeding at the time set for trial, and the burden will be placed upon the party who has failed to appear to show cause why the trial court should reopen the proceedings.

The unfortunate concept propounded in Elcomp, Inc. v. Drolet, supra, was not necessary to the decision reached by the Court in that case. There, the defaulting party, by a post-trial request for relief, had established a satisfactory excuse for his failure to appear. A majority of this Court has seized upon this unnecessary language in Elcomp to create procedural dogma which is contrary to well established procedural concepts, which is unfair to an innocent party who has appeared for trial, and which impairs the efficient conduct of a trial court’s business. I respectfully but vigorously dissent. The record in the case before this Court for review discloses that the action taken by the trial court was sanctioned by R.C.P. 218(b) and did not, even by exaggerated legal legerdemain, constitute an abuse of discretion. I would affirm the trial court’s order. I would not remand to give appellant a “second bite” to correct his numerous procedural derelictions.

      . We note that Appellee has not filed a brief in this appeal.

      . The only excuse offered to this Court by appellant in his appellate brief is that neither he nor his counsel was aware that the case had been listed for trial and that, therefore, they failed to appear. This reason, in my judgment, is entirely unsatisfactory.


author: BECK, Judge: WIEAND, Judge,

text:
    600 A.2d 589
    Patricia RODRIGUEZ v. Modesto RODRIGUEZ, Appellant.
    Superior Court of Pennsylvania.
    Argued May 23, 1991.
    Filed Dec. 12, 1991.
    Douglas N. Stern, Philadelphia, for appellant.

      Robin W. Banister, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, BECK and HUDOCK, JJ.
   BECK, Judge:

This is an appeal from a final order adjudicating appellant, Modesto Rodriguez, to be the father of two children born to appellee Patricia Rodriguez during the parties’ marriage and ordering him to pay support for those children. The pertinent facts are as follows.

Modesto Rodriguez and Patricia Rodriguez were married in 1972. During the marriage, two children were born— Stephen, born in 1974, and David, born in 1978. The parties were divorced in 1985. Prior to that time, however, Patricia moved to Florida and, in 1980, filed a petition for support for her two children. This petition was forwarded to Philadelphia pursuant to the Uniform Reciprocal Support Law. Although the petition was served on appellant, he failed to appear at the hearing scheduled on the petition and a bench warrant was issued. No support order was ever entered on this petition.

In 1989, Patricia renewed her attempts to obtain child support by filing another petition for support, this time in Las Vegas, Nevada. When this petition was forwarded to Philadelphia and served on appellant, he appeared, without counsel, for two pre-trial conferences and alleged that he was financially unable to support the two children. At the second of these conferences, appellant also denied paternity of the children. When the hearing on the petition was held, appellant again appeared without counsel. He repeated his denial of paternity and requested blood testing. This request was denied and the court found that on the evidence before it appellant was the children’s father. Appellant then secured counsel and filed post trial motions, which were denied. The court entered a final order of support, from which this appeal is taken.

On appeal, appellant argues that he was denied his due process right to be represented by counsel when he appeared at the hearing on his paternity without counsel and was not informed of his right to obtain counsel or, if indigent, to have counsel appointed for him. Appellant relies on Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982), and White v. Gordon, 314 Pa.Super. 185, 460 A.2d 828 (1983).

We agree that under the authority of these cases, appellant had a constitutional right to be represented by counsel. In Corra v. Coll, a panel of this court determined that the familial, liberty and property interests at stake in a paternity proceeding are significant enough to warrant protection through the appointment of counsel for indigent defendants in paternity actions. 305 Pa.Super. at 189-91, 451 A.2d at 486. The Corra court further found that the absence of counsel at a paternity proceeding posed a risk of an incorrect paternity determination and that the Commonwealth had a clear interest in the correctness of such determinations.

In White v. Gordon, 314 Pa.Super. 185, 460 A.2d 828 (1983), the Corra holding was extended to apply to non-indigent defendants in paternity proceedings. In White, the panel opined that since the same interests were present whether the defendant was indigent or not, a non-indigent defendant must be given a reasonable opportunity to obtain counsel. Id., 314 Pa.Superior Ct. at 188-90, 460 A.2d at 830. Later cases have further refined the right to counsel granted by Corra and White by holding that the right to counsel is a right to effective counsel. See, e.g., Banks v. Randle, 337 Pa.Super. 197, 486 A.2d 974 (1984).

There is no question that appellant was denied this right to effective counsel. There is no indication from the record before us that appellant was ever informed of his right to counsel. Therefore, he was never afforded an opportunity either to obtain counsel or to engage in a knowing and intelligent waiver of his right to counsel, as is required by our case law. See Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1984). Appellant was never instructed as to the possible disadvantages of proceeding without counsel or as to the assistance that counsel might render him. Moreover, there was no discussion of whether appellant was in fact indigent and might have counsel appointed for him.

Appellee argues, however, that the right to counsel does not exist in a case such as this where the children as to whom paternity is disputed are children born during the appellant’s marriage to appellee and where the presumption that they are the children of that marriage applies. We disagree. We do not find a relevant distinction between this case and the precedent cases in which the right to counsel was recognized. The same liberty, property and familial interests are equally involved, and the risk of an incorrect determination is equally present.

Having determined that appellant was denied his constitutional right to counsel, we must remand this matter to the trial court for a new hearing on paternity at which appellant’s constitutional right to counsel is protected. Given the clear necessity for a new hearing on paternity, we will not address the issue of whether appellant is entitled to blood tests to attempt to disprove his paternity. The hearing will determine whether the court shall order blood tests or whether the court will deny blood tests because the appellant is equitably estopped from questioning his paternity. Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988).

The order of the trial court is reversed and the matter is remanded for a new hearing to be conducted in accordance with this Opinion. Jurisdiction is relinquished.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I concur in the majority’s decision to reverse and remand for a new hearing. In addition to appellant’s assertion that he was entitled to be represented by counsel in this proceeding to determine paternity, he argues specifically that the hearing court erred when it denied his request for blood tests. In my judgment, appellant is also entitled to a new hearing for this reason.

Modesto and Patricia Rodriguez were married on September 30, 1972 and divorced in 1985. Two children were conceived and born to Patricia during the marriage: Stephen, born November 18, 1974, and David, born August 15, 1978. Modesto denies paternity of these children. Patricia, after moving to Florida, filed a petition for the support of her two children in 1980. This petition, pursuant to the Uniform Reciprocal Support Law, was forwarded to Philadelphia, where it was served on appellant. At the time of hearing, appellant failed to appear, and a bench warrant was issued for his arrest. However, a support order was never entered in response to the Florida petition.

In September, 1989, Patricia Rodriguez filed a second petition for support of her two children. This petition was filed in Las Vegas, Nevada, and was also forwarded to Philadelphia. When this was served on appellant, he appeared twice for pre-trial conferences, but when he denied both paternity of the children and also a financial ability to contribute to their support, the case came on for hearing before the trial court. There, appellant appeared without counsel. After a very brief hearing, the trial court made a finding that appellant was the father of the children for whom support was being sought. The record shows that he was not advised that he had a right to be represented by counsel and that a request for blood tests was denied by the court. Post-trial motions were denied — by this time appellant was represented by counsel — and he was ordered to pay the sum of twenty ($20) dollars per week for the support of his children, effective March 11, 1980.

In Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982), the Superior Court held that because of the special interests involved in paternity actions, including the possible loss of liberty, a defendant had a constitutional right to be represented by counsel. In White v. Gordon, 314 Pa.Super. 185, 460 A.2d 828 (1983), the Court held that a nonindigent defendant in a paternity action had been denied due process where a trial court ordered him to proceed without counsel. The Court there said, “a potential deprivation of liberty confronts any paternity defendant, whether or not indigent, and, since this court has determined that indigent paternity defendants have a right to counsel, nonindigent paternity defendants must, at least, be afforded a reasonable opportunity to secure representation by counsel to assist in the defense of such claims.” Id, 314 Pa.Superior Ct. at 189, 460 A.2d at 830. Finally, in Banks v. Randle, 337 Pa.Super. 197, 486 A.2d 974 (1984) and Kitrell v. Dakota, 373 Pa.Super. 66, 540 A.2d 301 (1988), allocatur denied, 523 Pa. 642, 565 A.2d 1167 (1989), the Court held that the right to be represented by counsel included the right to receive effective representation.

Appellee, who is represented by the District Attorney, argues that the right to counsel does not exist where the children were born during coverture and the defendant is presumed to be their father. However, the same liberty interests which formed the basis for the decision in Corra v. Coll, supra, are present in this action in which appellant has been charged with but denies paternity. Because the same interests are present here, appellant’s right to counsel must be recognized.

Where a constitutional right to effective assistance of counsel exists, a “waiver of [the right] must appear from the record to be a knowing and intelligent decision made with full understanding of the consequences.” Commonwealth v. Szuchon, 506 Pa. 228, 250, 484 A.2d 1365, 1377 (1984), citing Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975) and Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). See also: Commonwealth v. Cathey, 477 Pa. 446, 450, 384 A.2d 589, 590 (1978).

The record in the instant case fails to disclose a knowing and intelligent waiver of appellant’s right to counsel. When he appeared for trial without counsel, the court did not tell him that he was entitled to be represented by counsel or explain to him the dangers and/or disadvantages of proceeding without counsel. Also, it was not explained to appellant that if he were indigent he could request the court to appoint counsel for him. Because there was no colloquy whatsoever regarding appellant’s right to counsel, it cannot be said that the right thereto was waived merely because appellant appeared without counsel. The right to counsel in this case was not knowingly and intelligently waived. Cf. Commonwealth v. Bryant, 524 Pa. 564, 571, 574 A.2d 590, 594 (1990); Commonwealth v. Davis, 479 Pa. 274, 283, 388 A.2d 324, 326 (1978); Commonwealth v. Lloyd, 370 Pa.Super. 65, 84, 535 A.2d 1152, 1162 (1988), allocatur denied, 518 Pa. 637, 542 A.2d 1367 (1988).

The Uniform Act on Blood Tests to Determine Paternity (The Uniform Act), 42 Pa.C.S. §§ 6131 et seq., at section 6133, directs that blood tests shall be ordered in any matter in which paternity is a relevant fact. Paternity is a relevant fact in an action for child support where it has not previously been adjudicated and where the party disputing paternity is not estopped from doing so. See: Jones v. Trojak, 402 Pa.Super. 61, 67-69, 586 A.2d 397, 400 (1990). See also: Commonwealth ex rel. Coburn v. Coburn, 384 Pa.Super. 295, 301, 558 A.2d 548, 551 (1989) (en banc), citing Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988); Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987). Compare: Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990) (paternity not relevant fact in child support action against putative father where mother estopped from denying her husband’s paternity); Sanders v. Sanders, 384 Pa.Super. 311, 558 A.2d 556 (1989), allocatur denied, 525 Pa. 635, 578 A.2d 930 (1990) (paternity not relevant fact in support action where plaintiff’s first husband had previously been ordered to provide child support); Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988) (paternity not relevant in custody action where husband had assumed parental responsibility with knowledge that his biological paternity was questionable). Instantly, there has been no prior adjudication of paternity, and the record does not reflect that appellant has ever acted in a manner that would estop him from denying paternity of the children to be supported. There is no evidence that he ever accepted the children as his own or provided for their support.

The presumption of paternity which arises from the marriage relationship does not necessarily render the question of paternity irrelevant. This presumption, although one of the strongest presumptions in the law, see: John M. v. Paula T., 524 Pa. 306, 313, 571 A.2d 1380, 1384 (1990), cert. denied, — U.S.-, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990), is a rebuttable presumption. The presumption may be rebutted in the traditional manner by evidence of nonaccess or impotence. See: Commonwealth ex rel. Ermel v. Ermel, 259 Pa.Super. 219, 221, 393 A.2d 796, 797 (1978). It may also be overcome, following the legislature’s adoption of 42 Pa.C.S. § 6137, by blood tests which exclude the husband as a possible father. Jones v. Trojak, supra 402 Pa.Super. at 65-67, 586 A.2d at 399; Nixon v. Nixon, 354 Pa.Super. 232, 511 A.2d 847 (1986); Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962). The results of reliably performed blood tests may provide the court with accurate and probative evidence regarding the issue of paternity and, by specific enactment of the legislature may, in some cases, overcome the presumption of legitimacy which arises from the marriage relationship.

On the record now before this Court, there appears no valid reason for denying to appellant the right granted by statute to require blood tests which may be determinative of his paternity of the children which he is being asked to support. Therefore, for this reason also appellant is entitled to a new hearing.

      . Section 6137 provides as follows:
      § 6137. Effect on presumption of legitimacy
      The presumption of legitimacy of a child born during wedlock is overcome if the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests show that the husband is not the father of the child.


author: McEWEN, Judge:

text:
    600 A.2d 593
    The LEHIGH PRESBYTERY, a Pennsylvania Non-Profit Corporation, Appellant, v. MERCHANTS BANCORP, INC., a National Banking Corporation, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 24, 1991.
    Filed Dec. 16, 1991.

      Harry A. Dower, Allentown, for appellant.
    Donald L. Van Gilder, Allentown, for appellee.
    Before ROWLEY, President Judge, and McEWEN and TAMILIA, JJ.
   McEWEN, Judge:

This appeal has been taken from judgment entered following denial of appellant’s motion for post-trial relief. The trial court, in reliance upon Section 9 of the Uniform Fiduciaries Act, Act of 1923, May 31, P.L. 468, § 9, 7 P.S. § 6393, held that the appellee, Merchants Bancorp, Inc. (hereinafter Bank), was not liable to appellant for the value of negotiable instruments credited to the personal account of an employee of appellant. We find that the Uniform Fiduciaries Act is inapplicable to the facts of this case and therefore reverse.

Ms. Mary Ann Hunsberger was hired by the Lehigh Presbytery as a secretary/bookkeeper. In this capacity, Ms. Hunsberger was responsible for opening the Presbytery’s mail, affixing a rubber-stamp indorsement to checks received by the Presbytery, and depositing the checks into the Presbytery’s account in appellee’s bank. It is not disputed that, over a period of more than five years, Ms. Hunsberger deposited into her own account 153 of these checks. The Bank credited the checks to Ms. Hunsberger’s account, despite the rubber-stamp restrictive indorsement, because it relied solely on the account number handwritten on the deposit slips submitted by Ms. Hunsberger with the checks at the time of deposit. Ms. Hunsberger obtained the deposit slips in the lobby of the bank, wrote the proper account title, “Lehigh Presbytery,” but inserted her own account number rather than the account number of her employer.

Upon discovery of the diversionary scheme, appellant filed suit against the Bank to recover the funds credited to Ms. Hunsberger’s account, alleging breach of express and implied contract. Trial without a jury resulted in a verdict in favor of the appellee. Appellant’s motion for post-trial relief was denied and this appeal timely followed.

Appellant’s sole argument on appeal is that the Uniform Commercial Code (hereinafter U.C.C.) rather than the Uniform Fiduciaries Act controls disposition of this case. Appellant contends that, pursuant to the relevant sections of the U.C.C., appellee was legally bound to follow the restrictive indorsements on the 153 checks deposited instead to the personal account of appellant’s employee.

The U.C.C. § 3-205, 13 Pa.C.S. § 3205 provides:

An indorsement is restrictive which either:
(1) is conditional;
(2) purports to prohibit further transfer of the instrument;
(3) includes the words “for collection,” “for deposit,” “pay any bank,” or like terms signifying a purpose of deposit or collection; or
(4) otherwise states that it is for the benefit or use of the indorser or of another person.

It is undisputed that the indorsement stamped on each check by Ms. Hunsberger is a restrictive indorsement within the meaning of Section 3205.

Section 3-206 of the U.C.C., 13 Pa.C.S. § 3206, addresses the effect of such an indorsement and provides, in pertinent part:

(c) Conditional or specified purpose indorsement. — Except for an intermediary bank, any transferee under an indorsement which is conditional or includes the words “for collection,” “for deposit,” “pay any bank,” or like terms (section 3205(1) and (3) (relating to restrictive indorsements)) must pay or apply any value given by him for or on the security of the instrument consistently with the indorsement and to the extent that he does so he becomes a holder for value____

Thus, the U.C.C. mandates application of the value of the checks consistently with the indorsement, i.e., for deposit to Lehigh Presbytery’s account.

Courts considering the significance of a restrictive indorsement have consistently concluded that the U.C.C. imposes an unwaivable obligation upon the bank to honor the indorsement. The Colorado Supreme Court concluded that “[t]he duty to examine a restrictive indorsement and follow its directions may require a bank to refuse to deposit an item in a particular account if such conduct would be inconsistent with the restrictive indorsement, or to investigate rather than accept an item as a matter of course.” La Junta State Bank v. Travis, 727 P.2d 48, 54 (Colo.1986). New York State’s highest court has held that “[t]he presence. of a restriction imposes upon the depository bank an obligation not to accept that item other than in accord with the restriction. By disregarding the restriction, it not only subjects itself to liability for any losses resulting from its actions, but it also passes up what may be the best opportunity to prevent the fraud.” Underpinning & Foundation Constructors, Inc,, v. Chase Manhattan, 46 N.Y.2d 459, 469, 386 N.E.2d 1319, 1324, 414 N.Y.S.2d 298, 303 (1979). See also Cairo Co-Op. Exch. v. First National Bank of Cunningham, 228 Kan. 613, 620 P.2d 805 (Kan.1980) (bank liable for failure to honor restrictive indorsements); Am-South Bank, N.A., v. Reliable Janitorial Service, Inc., 548 So.2d 1365 (Ala. 1989) (where bank credited checks to account number on deposit slip and disregarded restrictive indorsement, bank liable for conversion pursuant to mandate of U.C.C. §§ 3-205 and 3-206).

Appellee argues that the U.C.C. is inapplicable because the Bank acted in accordance with the Uniform Fiduciaries Act, 7 P.S. § 6351 et seq., which, they contend, enables them to ignore the restrictive indorsement when the party depositing the check is a fiduciary. Appellee misapprehends the language and purpose of the Uniform Fiduciaries Act.

The Uniform Fiduciaries Act was designed to facilitate banking transactions by relieving the depositary of the responsibility of seeing that an authorized fiduciary uses entrusted funds for proper purposes. Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 124, 516 A.2d 299, 304 (1986). The Act accomplishes this objective by shielding a depositary from liability where it applies funds consistently with the indorsement on a negotiable instrument in reliance upon a fiduciary’s authority to so indorse the instrument, without further inquiry into the fiduciary’s actual authority to so apply the entrusted funds. The Act is thus in harmony with the clear mandate of the Uniform Commercial Code that a bank must apply funds consistently with restrictive indorsements. The Uniform Fiduciaries Act was not designed to relieve a depositary from liability where, as here, the Bank followed the instructions of a fiduciary which conflicted with the indorsement on the instrument negotiated.

We have reviewed each of the cases offered by appellee in support of its interpretation of the Uniform Fiduciaries Act and find that in none of the relied upon cases did a bank disregard a restrictive indorsement. Rather, in cases in which a bank was relieved of liability by the Act, it was because the bank relied upon the authority of a fiduciary when they applied funds consistently with the indorsement on an instrument.

Appellee cites Jones v. Van Norman, 513 Pa. 572, 522 A.2d 503 (1987), to support its argument that the appellant assumed the risk of its fiduciary’s competence and honesty. The fiduciary in Jones was authorized to indorse her principal’s name and the bank applied funds consistently with the fiduciary’s authorized indorsement without knowledge that the fiduciary was not authorized to cash the indorsed checks. The case is inapposite to the instant case because Ms. Hunsberger was only authorized to stamp a restrictive indorsement on the checks, and because the bank did not apply the funds consistently with the indorsements. Nevertheless, the discussion of our Supreme Court in Jones of the scope of Section 9 of the Act is instructive and consistent with our conclusion that the Uniform Fiduciaries Act will not protect a bank from liability unless it relies on a fiduciary with the authority to indorse checks payable to her principal. The Court stated: “unless the bank has actual knowledge that the fiduciary is committing a breach of his obligation as fiduciary, it is justified, if the fiduciary is empowered to endorse checks payable to his principal, in accepting them as a deposit to his personal account.” Jones v. Van Norman, supra, 513 Pa. at 581 n. 6, 522 A.2d at 508 n. 6, quoting Bacher v. City National Bank of Philadelphia, 347 Pa. 80, 89, 31 A.2d 725, 727 (1943). See also Levy v. First Pennsylvania Bank N.A., 338 Pa.Super. 73, 487 A.2d 857 (1985) (the Uniform Fiduciaries Act relieves banks of liability only when the fiduciary has the power to indorse). Ms. Hunsberger did not have authority to indorse checks payable to her principal nor did she ever exceed her limited authority to rubber-stamp the restrictive indorsement of the Presbytery’s Treasurer.

Our Supreme Court’s discussion of irregular conduct on the part of a fiduciary in Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 516 A.2d 299 (1986), is similarly consistent with our ruling in the instant case. Although Robinson is distinguishable from the instant case on its facts and the law applied thereto, the Supreme Court, addressing the general design of the Uniform Fiduciaries Act, pertinently held that “the UFA does not permit a bank to ignore an irregularity where it is of a nature to place one on notice of improper conduct by the fiduciary.” In the instant case, we find that the conflict between the restrictive indorsement on the checks and the account number on the deposit slips is so irregular as to give rise to a duty on the part of the Bank to refuse to deposit the checks without further inquiry.

We therefore conclude that 13 Pa.C.S. §§ 3205 and 3206 are controlling on the facts of this case and that Section 9 of the Uniform Fiduciaries Act is inapplicable.

Judgment reversed. Case remanded. Jurisdiction relinquished.

      . Each check was indorsed: "For Deposit Only To The Credit of Presbytery of Lehigh, Ernest Hutcheson, Treas.”

      . Appellee incorrectly cites Robinson in support of its contention that it should be relieved of liability because it acted without actual knowledge and in good faith. In Robinson, the bank released funds to a fiduciary on his oral instructions, without obtaining his indorsement, because he was a fiduciary known to bank officials as the person authorized to receive such funds. Interpreting Section 2 of the Uniform Fiduciaries Act, 7 P.S. § 6361, the Supreme Court held that where a depositary acting in good faith pays money to a fiduciary authorized to receive it, the payor bears no liability for a subsequent misappropriation of those funds by the fiduciary. Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 123, 516 A.2d 299, 303 (1986). The Bank’s good faith argument fails because Ms. Hunsberger was not authorized to receive the funds, and because good faith would, under no circumstances, excuse the Bank’s obligation to follow a restrictive indorsement.

      . We also note that appellee’s reliance upon 13 Pa.C.S. § 4406, in support of its estoppel by negligence defense, is misplaced. Section 4406 governs a customer’s duty to discover unauthorized signatures or alterations on items drawn on his account. The checks in question were not drawn on the appellant’s account and did not appear as debits on the Presbytery’s monthly statements. Nor did Ms. Hunsberger accomplish the diversion by unauthorized signature or alteration of the instrument itself.

      . We are unable to review the statute of limitations defense raised by the appellee since there are relevant factual issues outstanding.


author: TAMILIA, Judge: DEL SOLE, Judge,

text:
    600 A.2d 597
    COMMONWEALTH of Pennsylvania v. Joseph Dante PICCHIANTI, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 28, 1991.
    Filed Dec. 17, 1991.

      Michael E. Weinsten, Port Jervis, N.Y., for appellant.
    Alan B. Cooper, Asst. Dist. Atty., Milford, for Com., appellee.
    Before DEL SOLE, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence imposed January 24, 1991. In the early afternoon of April 12, 1990, Corporal Robert Evanchick of the Pennsylvania State Police was operating a stationary radar on Interstate Route 84 in Blooming Grove Township, Pike County, when appellant drove past on a motorcycle, registering a speed of 95 miles per hour on the radar unit. Corporal Evanchick pursued appellant as he weaved through traffic at speeds in excess of 100 miles per hour, forcing two vehicles off the road. Corporal Evanchick radioed the state police dispatcher, who in turn contacted the Pike County Communication Center to gain assistance from any local police departments in the area. Responding to this request, Milford Borough Police Chief Gary Williams set up a roadblock in his marked police car along Interstate 84. As appellant approached the roadblock, Chief Williams stood in the middle of the left lane, waving his arms in an attempt to stop appellant. Appellant, however, did not slow down and Chief Williams was forced to jump out of the way to avoid being struck by appellant. Appellant was apprehended subsequently in New York and returned to Pennsylvania. Appellant was charged in a seven-count information with recklessly endangering another person and six summary offenses under the Vehicle Code. The reckless endangerment count charged appellant did:

“recklessly engage in conduct which placed or may have placed Cpl. Robert Evanchick, Chief Gary Williams and other users of the highway in danger of death or serious bodily injury, in that he did drive in excess of 100 miles an hour, forced several vehicles off the roadway and refused to stop for police road blocks.”

On the day of trial, after the jury was impaneled but prior to opening statements and testimony, the Commonwealth presented a motion to amend the criminal information to include three separate counts of reckless endangerment, instead of one, reflecting a charge of reckless endangerment of Corporal Evanchick, reckless endangerment of Chief Williams and reckless endangerment of “other users of the roadway.” The Commonwealth conceded if the motion were granted, appellant would be entitled to a continuance. The trial court granted the Commonwealth's motion, over defense objection, but without a defense request for a continuance.

Following a jury trial, appellant was found guilty of two counts of reckless endangerment, two counts of reckless driving, one of which was a lesser included offense in the reckless endangerment charge involving Corporal Evan-chick, and all other crimes charged. Appellant was sentenced to a term of one to two years imprisonment in Pike County Jail, fined $975 and ordered to pay costs.

Appellant’s first seven claims on appeal concern the amendment of the criminal information from one count of reckless endangerment to three separate counts of reckless endangerment.

Pennsylvania Rule of Criminal Procedure 229 provides: The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

Id. The rule permits amendment to an information “provided that the change does not create a different or additional offense against which the accused must defend. Where the defendant has not been prejudiced case law has repeatedly held proper amendments to informations which have not broadened or changed the charge or which have not altered the nature or grade of the offense.” Commonwealth v. Wax, 391 Pa.Super. 314, 318, 571 A.2d 386, 388 (1990) (citations omitted).

In reviewing a grant to amend an information, this Court will look to determine whether the defendant is fully apprised of the charges against him. Where the crimes specified in the original information involve the same basic elements and arose out of the same factual situation as the crimes specified in the amended information, the defendant is deemed to have been placed on notice regarding his alleged criminal conduct and no prejudice to defendant results. Commonwealth v. Berry, 355 Pa.Super. 243, 513 A.2d 410 (1986); Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979). Further, if there is no showing of prejudice, amendment of an information to add an additional charge is proper even on the day of trial. Commonwealth v. Womack, 307 Pa.Super. 396, 453 A.2d 642 (1982). Finally, the mere possibility amendment of an information may result in a more severe penalty due to the addition of charges is not, of itself, prejudice. Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1979); Commonwealth v. Jones, 319 Pa.Super. 570, 466 A.2d 691 (1983).

In this case, appellant was aware from the time the original information was filed that Corporal Evanchick, Chief Williams and “other users of the roadway” were all listed as alleged victims of appellant’s actions resulting in the charge of reckless endangerment. Following the standards enunciated in Berry and Stanley, we find no prejudice to appellant where the amended information reflects the identical crimes, and the elements thereof arose out of the identical scenario and involve the identical victims. Amendment in this case did not broaden or change the reckless endangerment charge against appellant. In so finding, we discern a clear distinction between this case and the holding in Commonwealth v. DeSumma, 522 Pa. 36, 559 A.2d 521 (1989), wherein the Supreme Court refused to allow amendment of a criminal complaint at trial to include victims who were not named in the original complaint. In DeSumma, amendment to include previously unnamed victims violated Rule 229’s prohibition charging additional or different offenses, vitiating possible defenses which might have been raised. Here, appellant had ample notice of the identity of his alleged victims, although they were contained in a single information. Appellant also claims he was prejudiced by the failure of the Commonwealth to provide a written amendment to him. Given the foregoing facts, we find no need to provide appellant with a new information which merely separates one count into three, and, therefore, no prejudice to appellant. We also reiterate appellant at no time requested a continuance, diluting the strength of any prejudice claim.

Appellant also argues the trial court erred in permitting Corporal Evanchick to read from his police report “contrary to the best evidence rule.” This claim is entirely without merit, and we adopt a portion of the trial court Opinion in this regard.

This alleged error has nothing to do with the best evidence rule. The record reveals that the disputed report was used by the Commonwealth to rehabilitate its witness as evidence of a prior consistent statement. Therefore, we overruled the Defendant’s objection, and allowed the witness Cpl. Evanchick to read from his original report.

(Slip Op., Thomson, Jr., P.J., 3/7/91, pp. 7-8.)

Finally, appellant raises challenges to the sufficiency and weight of the evidence. In order to review a claim the evidence was insufficient to prove appellant’s guilt beyond a reasonable doubt, we must accept all evidence and all reasonable inferences therefrom, upon which the fact finder could have based the verdict, in order to determine whether the Commonwealth’s evidence was legally sufficient to support the verdict. Only where the evidence, when so viewed, is insufficient to establish guilt beyond a reasonable doubt as to the crimes charged is relief granted. Commonwealth v. Cody, 401 Pa.Super. 85, 584 A.2d 992 (1991).

From our examination of the record before us, we find ample evidence to support the jury’s verdict. Further, appellant’s challenge to the weight of the evidence must fail because we do not find the verdict “so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative,” Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989).

Judgment of sentence affirmed.

Dissenting opinion by DEL SOLE, J.

DEL SOLE, Judge,

dissenting:

I dissent from the majority opinion because I believe that the amendment of the information from one count of reckless endangerment to three separate counts of reckless endangerment constitutes the creation of additional charges in violation of Pa.R.Crim.P. 229.

The majority improperly distinguishes Commonwealth v. DeSummai 522 Pa. 36, 559 A.2d 521 (1989), as standing for the narrow rule that a criminal complaint may not be amended to include victims who were not named in the original complaint. However, a closer reading of DeSumma reveals that the creation of an additional charge does not turn solely on the question of whether or not all of the persons were named in the original information. As Justice Flaherty stated in reference to the amendment in DeSumma:

The latter, in fact, constitutes five separate offenses against the peace and dignity of the Commonwealth. It is therefore clear that the amendment of appellant’s information at trial from an assault upon O’Hara to an assault upon five people was impermissible under Rule 229 which prohibits an amendment from charging ‘an additional or different offense.’

Id., 522 Pa. at 40, 559 A.2d at 523. It is not the mere addition of the names that is determinative, rather it is the resultant additional charges that is a violation of Rule 229.

Furthermore, in DeSumma, the addition of the four names did not result in appellant being charged with any additional counts of reckless endangerment or assault. The instant case is therefore an even stronger case for application of Rule 229, as the amendment charged appellant with two additional counts. The rule states that the information as amended may not “charge an additional or different offense.” Although the amendment charged appellant with three counts of the identical offense, in differentiating between additional offenses and different offenses, the language of Rule 229 implies that each of the offenses charged need not be different from one another to fall within the rule’s purview.

The majority also justifies their decision by reference to Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1979) and Commonwealth v. Jones, 319 Pa.Super. 570, 466 A.2d 691 (1983), citing these cases for the proposition that an increase in the severity of punishment as a result of amendment is not a violation of Rule 229. However, here we are not dealing solely with the issue of a more severe penalty. Instead, it is the creation of additional criminal charges that is objectionable. The court in Jones specifically said that a change in the grading of a criminal mischief charge does not amount to an additional charge, but was silent as to the issue of a change in the number of offenses charged and is therefore inapplicable to the case at bar.

I also take issue with footnote 3 of the majority’s opinion. The majority’s use of Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984), to justify the trial court’s finding that it could sua sponte separate a single count of reckless endangerment into multiple counts is misplaced. Frisbie holds that multiple sentences may be imposed on a defendant whose single unlawful act injures multiple victims. It does not speak to the issue of sua sponte actions by the trial court, as defendant was originally charged with nine separate counts of reckless endangerment, obviating the need for sua sponte action by the court. A trial court should not be allowed to overcome sloppy pleading by the District Attorney’s office by making amendment to an information sua sponte. Although the majority cites Rule 229 as allowing such action when “necessary in the interests of justice,” the rule actually states that “upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.” (emphasis added). The rule therefore does not contemplate the type of sua sponte action to which the majority refers.

      . 18 Pa.C.S. § 2705.

      . It is noted, however, that although appellant faced greater criminal exposure following amendment of the information, his concurrent sentences of one to two years imprisonment amounted to the same sentence as if he had been charged with only one count of reckless endangerment.

      . We agree with the trial court’s finding that, sua sponte, it could separate a single count of reckless endangerment specifying more than one person who was placed in danger of death or serious bodily injury into a separate count of reckless endangerment for each individual placed in such danger. This action complies with the Supreme Court’s decision in Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984), that a separate offense of reckless endangerment is committed for each individual person placed in danger of death or serious bodily injury. While such sua sponte action should not be undertaken by the trial court merely to "clean up” after sloppy pleading by the Commonwealth, we find it allowable when "necessary in the interests of justice.” Pa.R.Crim.P. 229.


author: OLSZEWSKI, Judge:

text:
    600 A.2d 601
    FIRST REALVEST, INC., Appellant, v. AVERY BUILDERS, INC., Bud Avery and Marcia Avery, His Wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 8, 1991.
    Filed Dec. 18, 1991.

      Diane L. Romero (submitted), West Chester, for appellant.
    John T. Nicholson, Kennett Square, for appellees.
    Before CAVANAUGH, McEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order of the Court of Common Pleas of Chester County dismissing appellant First Real-vest’s [hereinafter “Realvest”] complaint on a demurrer. Realvest’s action was based on a contract between Realvest and Avery Builders, Incorporated [hereinafter “Avery Builders”]. Realvest’s complaint sounds in breach of contract and attempts to pierce the corporate veil in order to bring an action personally against Bud and Marcia Avery, shareholders in Avery Builders. The trial court found no basis in the pleadings to pierce the corporate veil, and therefore, granted appellees’ demurrer. We affirm.

A discussion of the case follows. Avery Builders brought an action against Realvest in April of 1989, to recover the unpaid balance allegedly due for services rendered by Avery Builders. Realvest responded to the complaint in that action by filing an answer with new matter and a counterclaim. Realvest’s counterclaim sought to recover damages allegedly caused by a breach of contract by Avery Builders. Realvest then filed a separate action for breach of contract against Avery Builders seeking to recover the same damages as the damages sought in the counterclaim. The only difference between Realvest’s counterclaim and separate suit was that in the separate suit Bud and Marcia Avery have been added as parties in their individual capacity.

Two issues are presented on appeal. First, whether a complaint which makes general averments that a corporation was used as an alter ego is sufficient to state a cause of action under the equitable doctrine of piercing the corporate veil. We find that such allegations are not sufficient. Second, whether a complaint can survive where the cause of action alleged in the complaint has been previously asserted in a counterclaim pending in a different action. We find that such a complaint must be dismissed under the doctrine of lis pendens. We take up both issues below.

When reviewing an order granting a demurrer, we accept as true all well-pleaded facts and all reasonable inferences drawn therefrom; however, conclusions of law are not accepted as true. Higgins v. Clearing Machine, 344 Pa.Super. 325, 496 A.2d 818 (1985).

The complaint herein is based solely upon a cause of action for breach of contract. The law in Pennsylvania is clear that where a party enters into a contract with a corporation, no action will lie against the shareholders of that corporation individually for a breach of that contract. Loeffler v. McShane, 372 Pa.Super. 442, 539 A.2d 876 (1988). “[T]he breach of the contract is the breach of a promise made by the corporation, and not the breach of any promise extended by the corporate officer.” Id., 372 Pa.Superior Ct. at 447, 539 A.2d at 879. Shareholders, officers and directors are not held liable for the corporation’s breach of a contract, absent an establishment of participation theory or the successful assertion of the equitable doctrine of piercing the corporate veil. For the reasons that follow, we find the complaint at issue established neither theory and that the demurrer was proper.

The allegations in the complaint attempting to support a claim under the equitable doctrine of piercing the corporate veil are extremely general. The briefs and the lower court opinion in this matter are somewhat confused in that participation theory and the doctrine of piercing the corporate veil are discussed interchangeably as a basis for imposing liability on Bud and Marcia Avery individually. In Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 470 A.2d 86 (1983), the Pennsylvania Supreme Court examined the differences between participation theory and piercing the corporate veil. Participation theory, in simple terms, is a theory which imposes personal liability on corporate officers or shareholders where they have personally taken part in the actions of the corporation. Id., 503 Pa. at 621, 470 A.2d at 89-90. Appellant’s brief makes no argument on participation theory. Furthermore, we note that the complaint avers no facts that would support a claim based on participation theory. The complaint makes the legal conclusion that the contract in question was made between First Realvest and Bud and Marcia Avery; however, no facts are averred to support such a conclusion. The contract incorporated into the complaint by reference in no way indicates such an arrangement. A demurrer on the basis that sufficient facts were not pled in the complaint to establish individual liability under participation theory was proper in this case.

Appellant’s brief argues that the complaint states sufficient facts to support a cause of action under the equitable doctrine of piercing the corporate veil. We do not agree.

The Pennsylvania Supreme Court has held that the corporate form “will be disregarded only when the entity is used to defeat public convenience, justify wrong, protect fraud or defend crime. Sams v. Redevelopment Authority, 431 Pa. 240, 244 A.2d 779 (1968) (emphasis added). See also, Kellytown v. Williams, 284 Pa.Super. 613, 426 A.2d 663 (1981).

In applying the test (for piercing the corporate veil), ... any court must start from the general rule that the corporate entity should be recognized and upheld, unless specific, unusual circumstances call for an exception ... Care should be taken on all occasions to avoid making “the entire theory of the corporate entity ... useless ...”

Kellytown, 503 Pa. at 622, 426 A.2d at 668 (quoting Zubik v. Zubik, 384 F.2d 267, 273 (3d Cir.1967)). We note that there is no definitive test for piercing the corporate veil. Kellytown at 622, 426 A.2d at 668. Applying the above standards, however, we can find no basis whatsoever to support piercing the corporate veil in the case before the court.

Paragraph 41 is the only allegation arguably supporting a cause of action against Bud and Marcia Avery individually under the theory of piercing the corporate veil.

41. Defendants, Bud Avery and Marcia Avery, formed Avery Builders, Inc. for their own benefit in that corporate funds are intermingled with their own or other alleged corporations owned by them and that they divert corporate funds to their own use and treat the corporation as an individual proprietorship and as an “alter ego”.

The contents of this paragraph are not sufficient to support the extreme remedy of piercing the corporate veil. All corporations are formed for the benefit of their shareholders and the shareholders draw out profits. It is ridiculous to say that the corporate form should be abandoned because a shareholder drew out funds; such a conclusion would render the corporate form useless. Whether or not the corporation is treated as a sole proprietorship or an alter ego requires a conclusion of law and is not properly considered here. Further, there are no facts pled here to support such a conclusion.

There are no facts pled here to support piercing the corporate veil. A demurrer on the basis that sufficient facts were not pled in the complaint to establish individual liability under the equitable doctrine of piercing the corporate veil was proper.

Realvest’s counterclaim and separate complaint both set forth sufficient causes of action against Avery Builders for breach of contract. The difficulty is that both state the same cause of action against Avery Builders, the only difference being the addition of Bud and Marcia Avery as parties to the separate action. Since the cause of action against Bud and Marcia Avery was dismissed, the court below properly dismissed the remainder of the separate complaint against Avery Builders under the doctrine of lis pendens. Penox Technologies v. Foster Medical Corp., 376 Pa.Super. 450, 546 A.2d 114 (1988).

For the foregoing reasons, the decision of the lower court is affirmed. Order affirmed.

McEWEN, J., concurs in the result.

      . Although Realvest’s counterclaim and separate action are not verbatim transcripts of each other, it is readily apparent that they involve the identical operative facts and damages. The sum of damages claimed in both is $93,817.92, which sum was calculated in both by adding up the damages Realvest allegedly suffered due to Avery Builders’ breach of contract during the construction of two properties.

      . The allegations against Bud and Marcia Avery incorporate the entire breach of contract action against Avery Builders, Inc., and then state the following:
      37. It is believed and therefore averred that Bud Avery and Marcia Avery, were controlling principals in the Defendant, Avery Builders, Inc. and may possibly be the sole and only principals of said Defendant.
      38. The aforementioned acceptance of Exhibits “A" and “B" were made by Bud Avery and Marcia Avery, individually and not in a corporate capacity.
      39. Said contract was in reality made with Bud Avery and Marcia Avery, individually, who own and operate a building contract business under the Fictitious Name “Avery Builders, Inc."
      40. Bud Avery and Marcia Avery, Defendants, exercise exclusive control over the operation of Avery Builders, Inc. and were the sole beneficiaries of any revenues and/or profits derived therefrom.
      41. Defendants, Bud and Marcia Avery, formed Avery Builders, Inc. for their own benefit in that corporate funds are intermingled with their own or other alleged corporations owned by them and that they divert corporate funds to their own use and treat the corporation as an individual proprietorship and as an "alter ego.”
      42. The actions of defendants, Bud Avery and Marcia Avery, and of Defendant, Avery Builders, Inc., are one and the same and, therefore, a breach of contract by one is a breach of contract by all. 43. Although numerous demands have been made, the sum of $93,817.92 is still due and owing.