author: LIPEZ, Judge:

text:
    497 A.2d 1360
    COMMONWEALTH of Pennsylvania v. Mark Thomas VINCENT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 22, 1985.
    Filed Aug. 30, 1985.

      David H. Acker, Public Defender, New Castle, for appellant.
    William M. Panella, District Attorney, New Castle, for Commonwealth, appellee.
    Before POPOVICH, WATKINS and LIPEZ, JJ.
   LIPEZ, Judge:

Defendant was tried for two counts of homicide by vehicle, 75 Pa.C.S. § 3732, and two traffic violations, 75 Pa. C.S. § 3714 (reckless driving) and 75 Pa.C.S. § 3301 (failure to drive on the right side of roadway). The judge found defendant guilty of the traffic violations, but the jury was hung on both counts of homicide by vehicle. Defendant moved to dismiss the homicide by vehicle charges, arguing that the traffic offenses of which he had been convicted were lesser included offenses of homicide by vehicle, and hence retrial on the two homicide by vehicle counts would constitute double jeopardy. The court below denied this motion, and defendant took this appeal. We affirm.

In rejecting defendant’s double jeopardy claim, Judge Caiazza relied on Commonwealth v. Pounds, 281 Pa.Super.Ct. 19, 421 A.2d 1126 (1980), petition for allowance of appeal denied, in which a panel of this court held that when a jury is hung on a charge of homicide by vehicle, and in the same trial the judge finds the defendant guilty of the underlying traffic offenses, retrial on homicide by vehicle is not barred on either statutory or constitutional double jeopardy grounds. Judge Van der Voort’s opinion announcing the judgment of the court in Pounds based this holding on a determination that the underlying traffic offense is not a lesser included offense of homicide by vehicle, because “a conviction for vehicular homicide, while implying guilt as to some violation of the motor vehicle rules, does not imply a finding of guilty as to any particular offense.” 281 Pa.Super.Ct. at 26, 421 A.2d at 1128.

Although Judges Spaeth and Hoffman only concurred in the result and did not join Judge Van der Voort’s opinion in Pounds, the court below held it was a binding precedent. It would appear that at least the result reached under the procedural posture in Pounds would be precedential, because all three participating judges agreed with the result. See Commonwealth v. Haefner, 473 Pa. 154, 156 & n. 3, 373 A.2d 1094, 1095 & n. 3 (1977); Gravinese v. Johns-Manville Corporation, 324 Pa.Super.Ct. 432, 438, 471 A.2d 1233, 1236-37 (1984); Commonwealth v. Scott, 279 Pa.Super.Ct. 8, 11-12, 420 A.2d 717, 719 (1980); see also Powell v. Johns-Manville Corporation, 342 Pa.Super.Ct. 544, 547, n. 1, 493 A.2d 724, 726, n. 1 (1985).

Defendant does not challenge the precedential effect of Pounds, but attempts to distinguish it by pointing out that here the Commonwealth specified in a bill of particulars the two traffic violations underlying the two homicide by vehicle counts. Since the Commonwealth is limited to proving homicide by vehicle in the manner specified in the bill of particulars, the Commonwealth could not establish defendant’s guilt of homicide by vehicle without first establishing his guilt of the specified traffic violations. Under these circumstances, defendant argues, Judge Van der Voort’s reasoning in Pounds is inapplicable, and the traffic violations of which defendant was convicted are lesser included offenses for double jeopardy purposes under Illinois v. Vitale, 447 U.S. 410, 419-20, 100 S.Ct. 2260, 2266-67, 65 L.Ed.2d 228 (1980).

Defendant may be correct in his assertion that Illinois v. Vitale, supra, supports his position that homicide by vehicle is a greater inclusive offense of the underlying motor vehicle offense, at least where the underlying motor vehicle offenses are specified in a bill of particulars. It is unnecessary for us to decide this point, however, because there is another factor which distinguishes both this case and Pounds from Illinois v. Vitale, and which by itself requires denial of defendant’s double jeopardy claim.

In Illinois v. Vitale, supra, the motor vehicle offense charge (failing to reduce speed) was not brought in the same proceeding as the charge of involuntary manslaughter. Vitale was first charged solely with failing to reduce speed, to which he pled guilty, and the state then attempted to prosecute him for involuntary manslaughter based upon the same incident. 447 U.S. at 412-13, 100 S.Ct. at 2262-63. The court held that this would constitute double jeopardy if involuntary manslaughter is a greater inclusive offense of failing to reduce speed, because there would be two successive prosecutions for the “same offense.”

In the case before us, there has never been an attempt at successive prosecutions, because the charges of homicide by vehicle and the traffic offenses were all brought in the same proceeding. Cases such as Illinois v. Vitale, supra, and Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), dealing with successive prosecutions for the “same offense,” are thus inapplicable here, because “we are not dealing with successive prosecutions, but rather with retrial following a mistrial caused by a deadlocked jury, a distinctly different problem. Accord, Forsberg v. U.S., 351 F.2d 242 (9 Cir., 1965); US. v. McGowan, 385 F.Supp. 956 (D.N.J., 1974).” Commonwealth v. Jones, 274 Pa.Super.Ct. 162, 170-71, 418 A.2d 346, 350 (1980).

Similarly, defendant has no valid statutory double jeopardy claim under sections 109 and 110 of the Crimes Code, 18 Pa.C.S. § 109, 110. Even if we assume the defendant is correct in claiming that the traffic offenses here are lesser included offenses, the only arguably applicable provision in sections 109 and 110 would be the third sentence of subsection (1) of section 109, which states: “A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside.” 18 Pa.C.S. § 109(1). Like all subdivisions of section 109, however, this sentence must be read in the context of the introductory paragraph, which makes it clear that all of section 109 applies only to successive prosecutions, not to the distinct problem of retrial following a deadlocked jury. See also Model Penal Code Comment, in S. Toll, Pennsylvania Crimes Code Annotated (1974), p. 41. Any other reading of the statute would lead to the absurd result that a defendant would have to be acquitted of the greater offense even if the jury found him guilty of that offense, so long as the jury also found him guilty of the lesser offense.

Finally, we note that defendant cannot use Rule of Criminal Procedure 1120(e) to make a double jeopardy claim independent of the constitutional and statutory claims we have already rejected. As the Note to Rule 1120 makes clear, subsections (c), (d) and (e) merely codify procedure, and no attempt is made (nor could they) to change the substantive law as to when verdicts give rise to double jeopardy claims. Since we have found no substantive basis for defendant’s double jeopardy claim, the lower court’s order denying it must be affirmed.

Order affirmed.

POPOVICH, J., concurs in the result.

      . An immediate appeal is permitted from pre-trial orders refusing to dismiss charges on double jeopardy grounds. See Commonwealth v. Haefner, 473 Pa. 154, 156, 373 A.2d 1094, 1095 (1977).

      . Pennsylvania’s homicide by vehicle statute reads as follows: "Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.” 75 Pa.C.S. § 3732.

      . But cf. In Interest of R.R., 317 Pa.Super.Ct. 334, 347, 464 A.2d 348, 355 (1983), citing Commonwealth v. Zimmerman, 498 Pa. 112, 117, 445 A.2d 92, 96 (1981).

      . The introductory clause of section 109 reads as follows: "When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances: ____” 18 Pa.C.S. § 109.

      . Defendant has not raised any claim of lack of manifest necessity for declaration of a mistrial because of the deadlocked jury.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    497 A.2d 1362
    COMMONWEALTH of Pennsylvania v. Dennis BANNISTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 21, 1985.
    Filed Sept. 6, 1985.

      Daniel P. Alva, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County. Appellant was sentenced to five to ten years in the State Correctional Institute in accordance with the Firearms provision of the Mandatory Sentencing Act, 42 Pa.C.S. § 9712. Appellant challenges the constitutionality of the Act, which in pertinent part provides:

§ 9712. Sentences for offenses committed with firearms
(a) Mandatory sentence.—Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
(b) Proof at sentencing.—Provisions of this section shall not be an element of the crime and notice thereof to
the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
(c) Authority of court in sentencing.—There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.

The facts that led to this attack on the Mandatory Minimum Sentencing Act are as follows: Appellant accompanied the victim, Arlington Lawrence, and a third party, Jose Montanez, on an excursion by car to Philadelphia. When the three men arrived at their destination, Montanez parked the car and got out, leaving appellant and Lawrence alone in the car. A short time later appellant reached under the front seat of the car and removed a gun. Appellant then pointed the gun at Lawrence and demanded that Lawrence surrender his wallet. When Lawrence hesitated, appellant fired the gun wounding Lawrence in the leg. Lawrence then handed his wallet to appellant who emptied it of its cash. After removing approximately $280.00 from the wallet, appellant ordered Lawrence out of the car. Lawrence obeyed the order and promptly went to a phone booth to call the police. Appellant was arrested approximately two months after the incident. Upon his arrest, appellant freely admitted to participating in the robbery and using the firearm.

Before trial the Commonwealth gave defendant notice of its intent to invoke Section 9712. Following the non-jury trial, the Honorable Victor J. Dinubile, Jr., convicted appellant of robbery, aggravated assault, recklessly endangering the life of another person, and possessing the instrument of a crime. Appellant filed a motion to bar application of the Mandatory Sentencing Act which the trial court denied. Judge Dinubile sentenced appellant to five-to-ten years imprisonment for robbery and lesser concurrent terms for aggravated assault and recklessly endangering another. This appeal followed.

Appellant raises four different, but closely related issues: (1) Whether the Mandatory Sentencing Act is unconstitutional under the Due Process Clause because it requires proof only by a preponderance of the evidence that a defendant visibly possessed a firearm during the commission of a crime?
(2) Whether the Mandatory Sentencing Act violates Due Process of Law by expressly providing that notice of the Act’s invocation need not be given until after trial?
(3) Whether the Mandatory Sentencing Act is unconstitutional because it gives the prosecutor discretion to decide after a determination of guilt whether or not to invoke the Act?
(4) Whether the Mandatory Sentencing Act violates the constitutional separation of powers doctrine by delegating too much power to the Legislature to determine the burden of proof to be employed at the sentencing hearing?

Our analysis of the constitutional challenge to this legislation must begin with a strong presumption of constitutionality. Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983); Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985). We will not strike down a statute unless its violation of the Constitution is so clear, palpable and plain as to preclude doubt or hesitation as to its validity. Snider v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981); Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 331 A.2d 198 (1975); See also Commonwealth v. Bryant, 239 Pa.Super. 43, 361 A.2d 350 (1976).

The Supreme Court of Pennsylvania recently upheld the constitutionality of Section 9712, specifically addressing the same issues raised by appellant in the instant case:

Visible possession of a firearm is a simple, straightforward issue susceptible of objective proof. There is scant potential that suspicion and conjecture will enter into the factfinder’s decision. In addition, evidence of visible possession is amendable to meaningful appellate review. Thus we are convinced that the preponderance standard satisfies the minimum requirements of due process as employed in the legislature’s mandatory sentencing scheme.

Commonwealth v. Wright, 508 Pa. —, 494 A.2d 354 (1985).

Our State’s highest Court further stated that it is the province of the legislature to determine the punishment imposable for criminal conduct. Id., (citing Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959)); Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958); Commonwealth v. Cano, 389 Pa. 639, 133 A.2d 800, cert. denied and appeal dismissed 355 U.S. 182, 78 S.Ct. 267, 2 L.Ed.2d 186 (1957). For this reason the Court held that: (1) Section 9712 does not violate the separation of powers doctrine by depriving the sentencing court of its discretion; nor does it (2) improperly delegate legislative power to the executive by giving the prosecution discretion whether to invoke the Mandatory Sentencing procedure. Commonwealth v. Wright, supra, 508 Pa. at —, 494 A.2d at 361.

Finally, we hold moot appellant’s argument that Section 9712 is unconstitutional because notice of its invocation need not be given until after trial.

The question of the constitutionality of a statute cannot generally be determined abstractly but rather is to be determined only as it applies and is sought to be enforced in a particular case before the court____ [A]nd furthermore, one who is unharmed by a particular feature of a statute will not be heard to complain of its alleged unconstitutionality.

Commonwealth v. Bonadio, 490 Pa. 91, 94, 415 A.2d 47, 49 (1980) (citing Knowles Estate, 295 Pa. 571, 145 A. 797 (1929)).

Because the arguments raised in the case sub judice are essentially identical to those decided in Commonwealth v. Wright, and as we are bound by the decisions of our Supreme Court, we find appellant’s constitutional challenges without merit.

Affirmed.


author: CIRILLO, Judge: CAVANAUGH, Judge,

text:
    497 A.2d 1365
    Nilda Marcia Martinez Hernandez TAYLOR a/k/a Nilda Marcia Taylor v. Antonio Nemesio TAYLOR a/k/a Tony Taylor, Appellant.
    Superior Court of Pennsylvania.
    Argued May 21, 1985.
    Filed Sept. 6, 1985.

      John M. McAllister, Philadelphia, for appellant.
    Joseph T. Quinn, Upper Darby, for appellee.
    Before CAVANAUGH, CIRILLO, and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Delaware County. The appellant, husband, asserts inter alia that the lower court abused its discretion by “mechanically dividing” the parties’ marital assets, and awarding the appellee, wife, permanent alimony. We affirm.

Appellee instituted an action in divorce alleging an irretrievably broken marriage pursuant to Section 201(c) of the Pennsylvania Divorce Code. The trial court entered a decree of divorce, and referred the collateral issues of alimony, costs, and distribution of the marital estate to a divorce hearing master. The master filed a report and recommendation to which both parties filed exceptions. Following a hearing de novo, the trial court awarded appellee: (1) permanent alimony in the amount of $400.00 a month for a period of 30 months; (2) counsel fees of $5,000.00 to be paid by appellant in monthly installments; and (3) marital assets, including one-half the net proceeds of the appellant’s monthly Major League Baseball pension of $1,338.00, the marital home valued at $65,000, and a rental property valued at $15,000.

The court awarded appellant the residue of his major league pension, and all awards, bats, gloves, and pictures acquired during his career. It is from this order that appellant filed the instant appeal.

The standard by which we review the equitable distribution of marital property, awards of alimony pendente lite, counsel fees, and permanent alimony is the abuse of discretion standard; absent an abuse of discretion by the trial court we will not disturb the award. Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409, 412 (1985); Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047, 1050 (1984); Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163, 165-166 (1983) (en banc); Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351, 1353 (1983).

Unfortunately the issues raised by appellant here cannot be reviewed by this Court. Pa.R.Civ.P. 1920.52(a) requires that the post-trial practice and procedure of all claims involving marital property or alimony shall be in accordance with Rules of Civil Procedure 227.1 to 227.4, which require post-trial exceptions to be filed in order to preserve issues on appeal. As Judge Cavanaugh indicated in Carangelo v. Carangelo, 321 Pa.Super. 219, 467 A.2d 1333 (1983) (en banc), and more recently in Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599 (1984) (en banc), where appellant fails to file exceptions to the order of the trial court, the issues raised with respect to the merits of the order are waived. Id., 321 Pa.Super. at 223, 467 A.2d at 1335.

In the case at bar appellant failed to file exceptions to the order of the trial court. Instead, appellant filed a direct appeal to this Court. Therefore the issues raised on the appeal are waived. Accordingly we must affirm the order of the lower court.

AFFIRMED.

CAVANAUGH, J., files a concurring statement.

CAVANAUGH, Judge,

concurring:

As the majority notes, appellant failed to file exceptions to the order of the trial court. Rather, appellant appealed directly from the order of August 14, 1984, but before a final order was entered pursuant to Pa.R.C.P. 227.4. On the basis of Szakmeister v. Szakmeister, 344 Pa.Super. 465, 496 A.2d 1199 (1985), I would therefore quash the instant appeal.

      . The New Divorce Code provides:
      It shall be lawful for the court to grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and 90 days have elapsed from the date of filing of the complaint and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.
      The Act of April 2, 1980, P.L. 63, No. 26, § 201; 23 P.S. § 201(c).


author: TAMILIA, Judge:

text:
    497 A.2d 1367
    COMMONWEALTH of Pennsylvania v. James W. BURDGE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 1, 1985.
    Filed Sept. 6, 1985.

      Robert B. Stewart, III, Huntingdon, for appellant.
    Stewart L. Kurtz, District Attorney, Huntingdon, for Commonwealth, appellee.
    Before TAMILIA, MONTGOMERY and ROBERTS, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence entered pursuant to appellant’s bench conviction for driving under the influence of alcohol, 75 Pa.C.S.A. § 3731(a)(4). Sentence imposed was five days to twenty-three months imprisonment and a $300 fine.

Appellant was arrested after the car he was driving crossed the center line and collided with another vehicle, fortunately without causing physical injury. Police noted visible signs of intoxication, impaired gait, slurred speech and an odor of alcohol, and when tested, appellant produced intoxilyzer results of .13.

Appellant has raised three issues for our consideration of which the second and third represent the same thesis propounded somewhat differently. In view of our disposition of this case, we need address only this central claim.

It is contended that the court-established admission criteria for Accelerated Rehabilitative Disposition (ARD) are so restrictive as to render the program unavailable in driving under the influence cases, thereby undermining the policy which ARD was intended to implement. Alternatively, it is argued that the Huntingdon County criteria results in a formulaic, inflexible, and therefore illegal sentencing procedure. Appellant contends that only those offenders specifically excluded by the provisions of the Act, under which rubric he does not fall, should be prevented from entry into the program.

We find that although we must take issue with appellant’s minor premise, we agree with his major one(s). We base our decisions on the recent decision of our Supreme Court in Commonwealth v. Lutz, et al. 508 Pa. —, 495 A.2d 928 (1985). Lutz dealt, inter alia, with the question of whether rules that were in contravention of Supreme Court ARD rules could be promulgated by courts of common pleas pursuant to the statute. Justice Flaherty, writing for the court, albeit on a procedural question, found that:

Assuming, arguendo, as it has been asserted, that the Motor Vehicle Code does require Courts of Common Pleas to establish ARD programs in which all first offenders charged under Section 3731 (drunk driving) must be placed on ARD, such statutory provision, since it is in contravention of the rules of this Court, would be invalid. Art. 5 § 10, Pa. Const. A fortiori, rules or practices voluntarily established by courts of common pleas in contravention of the rules of this Court, are per se invalid.

Lutz, 508 Pa. at —, 495 A.2d 928.

Because ARD is a pre-trial disposition, its governance lies at the discretion of the district attorney, not that of the court. See Lutz, 508 Pa. at —, 495 A.2d 928. And, in any event, the rules challenged here do differ materially from the policy at which establishment of the ARD program was directed, i.e., an alternative to punishment in certain classes of cases. Pa.R.Crim.P. 175-185. They also remove all flexibility from the eventual sentencing disposition. In effect, when used by the court pre-trial to disapprove entry into ARD, they predetermine the post-verdict penalty. They intrude upon the prerogatives of the district attorney, and thus of the Supreme Court’s rule making authority, and violate the theory behind individualized sentencing. Unquestionably, the Supreme Court rules require court approval on an individual basis of persons accepted for ARD by the district attorney. The purpose of this requirement is to prevent abuse by the district attorney, and may not be the vehicle by which the court, through local rules, supersedes the discretion conferred on the district attorney. The second function of the court is to clarify the conditions of the ARD program, Pa.R.Crim.P. 179(c), which may be such as those imposed with respect to probation after commission of a crime, except that a fine may not be levied. Pa.R.Crim.P. 182(a).

Case reversed and remanded for reconsideration of appellant’s acceptance into ARD in light of this case and Lutz, supra.

Jurisdiction relinquished.

      . Appellant’s first issue concerns the admissibility of the intoxilyzer results since the machine used had not been approved prior to his test. It had been approved prior to trial, however, which satisfies 75 Pa.C.S.A. § 1547(c)(1). See Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984).

      . 1. The chemical test reading, whether blood test or breathalizer, is below .15. Since those who refuse the test have no reading, they do not qualify.
      2. There was no accident.
      3. No prior misdemeanor or felony convictions or ARDs.
      4. None of the other statutory exceptions apply.
      5. The Court Reporting Network test shows no alcohol dependence problem or alcohol abuse problem.
      6. The defendant has been cooperative with the police.
      7. The defendant has had a valid insurance policy in force at the time of the incident in accordance with Section 1552 of Act 289 of 1982.
      8. The defendant had a valid drivers license at the time of the incident which was not under suspension or revocation.

      . These include habitual offenders and those whose alleged actions resulted in serious injury or death to a person other than the defendant.


author: JOHNSON, Judge:

text:
    497 A.2d 1369
    COMMONWEALTH of Pennsylvania v. Herbert LINDSEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 9, 1985.
    Filed Sept. 6, 1985.

      William R. Cunningham, North East, for appellant.

      Michael J. Veshecco, District Attorney, Erie, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

Herbert Lindsey, Appellant, appeals from the judgment of sentence imposed April 20, 1979. Appellant phrases his issue for review as follows:

I. Whether there was sufficient evidence to support the verdict when there was only one witness to the crime, the victim, who was not wearing her glasses at the time of the incident, which occurred at night time in a room only lit by one small night light, and when the victim testified that her assailant was wearing wire-rim glasses and did not use or threaten her with a gun?

For the reasons stated herein we affirm as to the judgment of sentence for rape and burglary and vacate the sentence for crime committed with a firearm.

On July 10, 1978 at approximately 12:15 A.M., Grace Chapin heard a crash at the front door of her apartment. Subsequently, a black male walked into her bedroom, raped her, stole some money and a television set from her, and left. Ms. Chapin later identified her assailant as the Appellant, Herbert Lindsey.

Herbert Lindsey was arrested by the police on July 14, 1978 and charged with burglary, rape, and committing a crime with a firearm.

Lindsey proceeded to a non-jury trial held before the Honorable Lindley R. McClelland on December 29, 1978, and continued until February 7, 1979. Following the close of testimony, on February 14, 1979, Lindsey was found guilty of all the charges.

On April 20, 1979, Lindsey was sentenced to a term of seven and one-half (7V2) to twenty (20) years on the rape conviction; sentence on the other two charges was suspended. Lindsey subsequently filed a notice of appeal Nunc Pro Tunc which was refused by this court.

Lindsey then filed a PCHA petition in the Court of Common Pleas, alleging ineffective assistance on the part of his trial counsel for failure to file his appeal on time. Following a hearing before the Honorable Richard L. Nygaard, Lindsey’s appeal rights were reinstated Nunc Pro Tunc by opinion and order dated February 8, 1984.

On or about February 17, 1984, a notice of appeal was filed with this Court for disposition.

Appellant’s contention that there was insufficient evidence to support the verdict of guilty on the charges of rape and burglary is ill-founded. The facts, as set forth in the record, indicate that the trial judge had sufficient evidence before him to find appellant guilty of the rape and burglary charges. The testimony at trial, as presented by the victim, Ms. Chapin, indicated that appellant was seen by the victim prior to and during the rape. Although her face was covered during most of the burglary, Ms. Chapin stated that, prior to this incident, she had also observed appellant in her neighborhood. N.T., 12/29/78 at 4, 19. Ms. Chapin further stated that although she has difficulty with her eyesight (she is nearsighted) and wears glasses, she did not need the glasses to see things close to her. N.T., 12/29/78 at 9-11. In addition to this, Ms. Chapin testified that shortly after the assault she picked appellant’s photo from a photo array consisting of several photos. N.T., 12/29/78 at 40.

The finder of fact can believe all, part, or none of the testimony presented. Commonwealth v. Jensch, 322 Pa.Super. 304, 469 A.2d 632 (1983). In the instant case, the trial judge was in the best position to observe the demeanor of the witnesses and to determine the validity of their testimony. Here, the fact finder obviously believed the testimony of Ms. Chapin to be truthful. This court will not question such a finding where the trial judge was better able to weigh the testimony. Since we are compelled to view the evidence in a light most favorable to the Commonwealth, as verdict winner, along with any reasonable inferences deducible therefrom, see Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979), we find the judgment of sentence on the charges of rape and burglary to be proper. Accordingly, we affirm as to these judgments.

Appellant’s additional contention, however, requires a different conclusion. Appellant argues that the conviction for the charge of crime committed with a firearm should not stand, and we agree. 18 Pa.C.S. § 6103 states that a person is in violation of this statute if he “shall commit or attempt to commit a crime of violence when armed with a firearm ... [thus] he may, in addition to the punishment provided for the crime, be punished also as provided____”

Appellant argues that there was insufficient evidence to support a conviction on this charge; however, we need not address the sufficiency of the evidence here. It is well established that violation of this statute does not create a separate offense for which one may be convicted; the statute merely provides that a violation of the weapons offense does not merge with the crime of violence for purposes of sentencing. Commonwealth v. Flynn, 314 Pa.Super. 162, 460 A.2d 816 (1983); Commonwealth ex rel. Curry v. Myers, 195 Pa.Super. 480, 171 A.2d 792 (1961). (Emphasis added). Furthermore, a person may not be convicted and sentenced on the “crime” of crimes committed with a firearm. Commonwealth v. Turner, 265 Pa.Super. 486, 490, 402 A.2d 542, 544 (1979). Appellant, in the instant case, was unlawfully convicted and sentenced (although sentence was suspended) on the charge of crimes committed with a firearm. Therefore, we vacate the judgment of sentence on that conviction.

Affirmed in part, vacated in part. Jurisdiction is relinquished.

      . 18 Pa.C.S. § 3502.

      . 18 Pa.C.S. § 3121.

      . 18 Pa.C.S. § 6103.

      . Post Conviction Hearing Act, 42 Pa.C.S. 9541 et seq.


author: CERCONE, Judge:

text:
    497 A.2d 1371
    COMMONWEALTH of Pennsylvania v. Kenneth S. SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Sept. 6, 1985.

      Anthony S. Federico, Jr., Harrisburg, for appellant.
    Katherene E. Holtzinger-Conner, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CAVANAUGH, CERCONE and LIPEZ, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence imposed by the Court of Common Pleas, Dauphin County. Appellant was convicted, in a bench trial, of possession with intent to deliver a controlled substance. We reverse.

The testimony disclosed that on December 14, 1982, several members of the Pennsylvania State Police served a search warrant at 216 Beaver Road, Lower Paxton Township. The probable cause for the search was a controlled purchase of marijuana made from inside the residence within the past forty-eight hours; however, the seller' was unidentified. The troopers gained admittance to the home and found two individuals present, the appellant and his sister-in-law, Theresa M. Smith. The appellant resided at that address with his brother and sister-in-law.

A total of 738.7 grams or 26.38 ounces of marijuana was found on the premises as a result of the search. A large portion of the marijuana seized was packaged into smaller containers. The bulk of the marijuana was apparently found in the bedroom of the owners of the residence, Ms. Smith and her husband. A small amount of marijuana as well as related paraphernalia were found in the kitchen. A small scale was found in a closet of a spare bedroom. No controlled substance or related paraphernalia was found on the person of appellant.

The sole issue we will address in the instant appeal is whether the evidence is sufficient to sustain appellant’s conviction for possession with intent to deliver a controlled substance.

In reviewing the sufficiency of the evidence, we must view all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as a verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt____ The proper procedure to challenge the sufficiency of the evidence is by a post-verdict motion in arrest of judgment, (citations omitted)

Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229-30 (1984).

Since no controlled substance was found on the appellant, it was incumbent upon the prosecution to prove constructive possession of the controlled substance, by the accused, to justify conviction. Commonwealth v. Stokes, 294 Pa.Super. 529, 440 A.2d 591 (1982). Proof of constructive possession requires that one had both power to control and intent to exercise control over the narcotics. Commonwealth v. Hoetzel, 284 Pa.Super. 623, 426 A.2d 669 (1981).

We find that the Commonwealth’s evidence in this case was clearly insufficient to support a finding beyond a reasonable doubt that appellant had constructive possession of the marijuana. The conviction is based upon the large quantity of marijuana found in the owners’ bedroom. There is not one scintilla of evidence to show that appellant had access to that marijuana. This court has frequently indicated that a bedroom is a private place with limited access and is usually subject to the exclusive control of the inhabitant of that bedroom. See Commonwealth v. Maurer, 240 Pa.Super. 471, 361 A.2d 356 (1976), and Commonwealth v. DeCampli, 243 Pa.Super. 69, 364 A.2d 454 (1976). A closet within a bedroom is even more likely to be a private place with limited access.

The lower court reasoned that the appellant and his codefendant had equal access to the contraband and therefore were in joint constructive possession. In order to prove joint possession, the Commonwealth must prove: (1) the power to control and (2) the intent to exercise joint control on the part of the appellant. See Commonwealth v. Gilchrist, 255 Pa.Super. 252, 386 A.2d 603 (1978), and Commonwealth v. Samuels, 235 Pa.Super. 192, 340 A.2d 880 (1975). The evidence in the case sub judice shows nothing more than mere presence by appellant. He was neither the owner of the premises nor was he shown to have had access to a bedroom other than his own. The fact that a controlled sale had occurred at the house, without evidence that appellant participated, is inconsequential and of no inferential value. It is not a crime to live in a house where illegal activity occurs if one does not participate in such activity. See Commonwealth v. Reece, 437 Pa. 422, 427, 263 A.2d 463 (1970):

[T]he element of “presence at the scene” is not of critical import in drug possession cases. Evidence of this fact is of some weight in proving substantive crimes where the inference might be drawn that the accused was in some way involved in the commission of the crime. But here, the crime which had been committed in the apartment was the possession of narcotic drugs. Reece’s appearance there could in no way implicate him in that crime since such a crime by its very nature is unique to the individual. By definition, the possessor is the only person who could commit this crime. Guilt by association thus becomes the rationale of the arrest here. This is unacceptable.

The Commonwealth cites two cases in support of its claim that the evidence was sufficient to show that appellant had constructive possession of the controlled substance. They are Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983), and Commonwealth v. Gilchrist, supra. Each of these cases is distinguishable. In Macolino, the court found that constructive joint possession of the controlled substance by both husband and wife had been proven. The evidence in that case showed that both husband and wife had equal access to the bedroom closet where the substance was found. In Gilchrist, this court found that sufficient evidence had been proffered to show that husband and wife had equal access to contraband found on the mantle in their bedroom and in dresser drawers.

The evidence in this case is clearly insufficient to support a finding of equal access to the bedroom closet where the marijuana was located. The evidence shows nothing more than the fact that appellant also lived in the house. Accordingly, the judgment of sentence is vacated and the case is dismissed.


author: PER CURIAM:

text:
    497 A.2d 1374
    COMMONWEALTH of Pennsylvania, Appellant, v. Donald WOODLYN.
    Superior Court of Pennsylvania.
    Argued March 12, 1985.
    Filed Sept. 6, 1985.

      Joanne F. Tyler, Assistant District Attorney, Philadelphia, for appellee.
    Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Before SPAETH, President Judge, and JOHNSON and SHOYER , JJ.

       The Honorable Kendall H. SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   PER CURIAM:

This is an appeal by the Commonwealth from judgment of sentence for aggravated assault. The Commonwealth argues that the sentencing court erred in holding the evidence insufficient to find that appellant “visibly possessed a firearm during the commission of the offense” within the meaning of 42 Pa.C.S. § 9712, and in therefore refusing to impose the minimum sentence mandated by that section. We agree and accordingly vacate the sentence and remand for imposition of a sentence in accordance with that section.

On September 27, 1982, after an argument, appellant shot the victim in the abdomen. The victim testified that the shooting occurred as follows: Appellant rode his bicycle to within eight feet of him. Remaining on the bicycle, appellant reached into his pocket. When he withdrew his hand, it was in the shape of a fist with the knuckles visible. The victim heard a “bang,” saw smoke, and felt what proved to be the impact of a bullet. However, he never saw the gun. N.T. 8/15/88 at 22, 30.

Section 9712, 42 Pa.C.S. § 9712 provides:

§ 9712. Sentences for offenses committed with firearms
(a) Mandatory sentence.—Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.

In Commonwealth v. Healey, 343 Pa.Super. 323, 494 A.2d 869 (1985), we construed the meaning of the statutory language “visibly possessed a firearm.” In that case, the trial court found the evidence insufficient to support the imposition of the mandatory minimum sentence where appellant invited the victim to his apartment, and, upon hearing his knock, fired a shotgun through the closed door. We vacated the judgment of sentence and remanded for resentencing, holding:

It is clear that section 9712 was enacted to deter the introduction of a firearm into the criminal acts specified in the statute. It is the potential danger of the firearm which section 9712 addresses, not just the visibility of the firearm. Under appellee’s definition of “visibly possessed,” a defendant who robs a victim while pointing a firearm at the victim’s chest would be subject to a mandatory sentence, but one who points a firearm at a victim’s back and robs him from behind would escape a mandatory sentence. Such a result would be absurd.
We define “visibly possessed” as possession which manifests itself in the process of the crime. This definition would include situations where a firearm is visible to the eye of the victim or a third party. Additionally, it would encompass situations where, as in the case sub judice, a firearm is hidden but has a visible effect on the victim. In the latter context, our definition would cover an individual who points a firearm inside his pocket and then threatens his victim by informing the victim that a firearm is aimed at the victim.

Id., 343 Pa.Superior Ct. at 325, 326, 494 A.2d at 869, 870. Here, appellant’s possession was undoubtedly “manifest[ed] in the process of the crime” by the smoke, the sound of gunfire, and, of course, the gunshot wound. Accordingly, we find that he “visibly possessed a firearm during the commission of the offense” within the meaning of 42 Pa.C.S. § 9712. See Commonwealth v. Healey, supra.

Judgment of sentence vacated and remanded for resentencing.


text:
    497 A.2d 1375
    COMMONWEALTH of Pennsylvania v. Richard PACELL, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1985.
    Filed Sept. 13, 1985.

      Thomas J. Turner, III, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and JOHNSON and SHOYER , JJ.

       Judge SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   JOHNSON, Judge:

Following a jury trial Appellant, Richard Pacell, was convicted of first-degree murder and possessing instruments of crime generally. On March 20, 1984, the Honorable George J. Ivins of the Court of Common Pleas of Philadelphia County sentenced Appellant to life imprisonment for first-degree murder and a concurrent sentence of not less than one nor more than two years for possessing instruments of crime generally.

On appeal from the Judgment of Sentence Appellant raises the following issues:

I. REVERSIBLE ERROR WAS COMMITTED WHEN THE PROSECUTOR WAS ALLOWED TO QUESTION THE APPELLANT, OVER OBJECTIONS OF TRIAL COUNSEL, AS TO PRIOR CRIMINAL ACTIVITY AND, IN PARTICULAR, THE ASSAULT ON DEBBIE BIRKMIRE.
II. THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT’S MOTION FOR A MISTRIAL WHEN THE PROSECUTOR IN HIS CLOSING ADDRESS WAS GUILTY OF PROSECUTORIAL MISCONDUCT IN CALLING THE DEFENDANT A LIAR.
III. REVERSIBLE ERROR WAS COMMITTED WHEN THE TRIAL COURT CONTINUALLY ALLOWED THE PROSECUTING ATTORNEY TO LEAD WITNESSES AND THEN REPEAT THE WITNESSES’ TESTIMONY AFTER THEIR ANSWERS, OVER THE OBJECTIONS OF TRIAL COUNSEL.
IV. ERROR WAS COMMITTED WHEN THE JURY FOUND THE DEFENDANT GUILTY OF FIRST DEGREE MURDER DESPITE THE FACT THAT THE EVIDENCE PRESENTED WOULD NOT ALLOW A DETERMINATION OF GUILT BEYOND A REASONABLE DOUBT.

After careful review of the record, we believe Judge Ivins’ Opinion filed March 6, 1984 adequately addresses Issues II and III and with respect to these issues raised by Appellant on appeal, we affirm on the basis of the trial court’s opinion.

Appellant in Issue I argues that the trial court erred in admitting Appellant’s testimony, on cross-examination, that he hit his common-law wife, Debbie Birkmire, during an argument that took place five days before the murder. See N.T., 6/2/83 at 68-75. The trial court correctly concluded that this testimony did not refer to “prior criminal activity”, since Appellant was never arrested, indicted, or convicted for it. Opinion, 3/6/84 at 5. The court went on to state, that with this conclusion, “(t)he issue then becomes whether [the testimony] was relevant for impeachment purposes.” Id. In fact, that was not the issue, or to put it differently, if it were the issue, the answer was that the testimony was not relevant for impeachment purposes. The testimony was evidence of prior misconduct, or a prior “bad act”, see McCormick, Handbook on Evidence, § 42 (3rd ed. 1984), and “Pennsylvania case law has long held that a witness may not be impeached by evidence of criminal activity for which the witness has not been convicted.” Commonwealth v. Cragle, 281 Pa.Super. 434, 436-37, 422 A.2d 547 (1980) (collecting cases). See also Commonwealth v. McGuire, 302 Pa.Super. 226, 231-32, 448 A.2d 609, 612 (1982). Nevertheless, the testimony was admissible, albeit for a purpose other than to impeach Appellant.

While evidence either of a prior bad act or crime is inadmissible if offered to prove the defendant’s bad character, see Commonwealth v. Zettlemoyer, 500 Pa. 16, 50, 454 A.2d 937, 955 (1982), cert. denied 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 reh. denied 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983); Commonwealth v. Styles, 494 Pa. 524, 527, 431 A.2d 978, 980 (1981), such evidence may be admissible for other evidentiary purposes if its probative value outweighs its tendency to prejudice the jury. See Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981). See also McCormick, Handbook on Evidence, supra at § 190. Such other evidentiary purposes include establishing the defendant’s motive or that the defendant “acted with malice, deliberation, or the requisite specific intent.” Id. at 558, 562-63.

The Commonwealth’s theory in this case was that the relationship between Appellant and Birkmire was rapidly deteriorating, primarily because Appellant suspected she was having an affair with the victim; that five days before the murder, Appellant and Birkmire argued violently about the affair; that, as a consequence, one or two days after the argument Appellant purchased a knife; and that two or three days after purchasing the knife Appellant trapped Birkmire with her lover and murdered him with the knife. N.T., 6/6/83 at 44-49. During the course of cross-examining Appellant regarding the purchase of the knife, the assistant district attorney asked twelve questions regarding Appellant’s argument with Birkmire. The questions were all variations on the following theme:

Q. I’d like to know why did you hit her? Why did you find it necessary to hit an 18-year-old girl in the face?

N.T., 6/2/83 at 72-73.

This evidence was relevant, if at all, to show the depth of the estrangement between Appellant and Birkmire. One might argue that Birkmire’s age, or the fact that she was struck in the face, had no relevance to this issue, and that the purpose of the questions was the impermissible one of showing Appellant’s propensity for violence. Appellant did, in fact, object that the Commonwealth’s questions were irrelevant. N.T., 6/2/83 at 70. Commonwealth v. Fuller, 479 Pa. 353, 388 A.2d 693 (1978), might appear to support this position. There, the trial court allowed a witness to testify that she had seen the defendant with the murder weapon, a gun, two days after the murder, when he had hit her with it. Although she was not permitted to testify that the defendant had also attempted to rape her, the supreme court nevertheless reversed and granted a new trial, holding that the testimony was relevant only to the issue of the defendant’s possession of the gun, and that the trial court should therefore have prevented the jury from hearing evidence about the defendant’s use of the gun to hit the witness. Id., 479 Pa. at 358, 388 A.2d at 695.

On balance, however, we believe that the evidence here was relevant to Appellant’s motive, and that because it was part of the sequence of events leading directly to the homicide, this relevance was not vitiated by remoteness. (In fairness to the trial court, it should be noted that despite its characterization of the issue as being whether the evidence was “relevant for impeachment purposes”, Opinion, 3/6/84 at 5, it went on to say that the evidence “was offered to show intent, motive, and a continual course of conduct[]” and that on that ground it was “relevant and properly admitted”, id. at 6. We agree with that conclusion.)

Unlike the situation in Fuller, Appellant’s argument with Birkmire took place before the murder. It was, therefore, directly relevant to the Commonwealth’s theory of motive for, as the Commonwealth argued, it tended to show escalating anger and jealousy, of “an intensity of feeling, enough to make somebody act____” N.T., 6/6/83 at 45. It is true that Appellant’s argument with Birkmire took place five days before the murder, but that was not so long a period as to vitiate its relevance to Appellant’s state of mind at the time of the killing. The jury could find that the ill-will generated by the argument continued throughout the five-day period and led directly to the purchase of the murder weapon and the conception and execution of the murder plan. N.T., 6/6/83 at 45-47. See Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978) (evidence that the victim had hit appellant with a chair thirteen days before murder held admissible under motive exception); Commonwealth v. Glover, 446 Pa. 492, 496, 286 A.2d 349, 351 (1972) (evidence that two to three weeks before defendant murdered man found in former girlfriend’s apartment, defendant had broken into apartment and assaulted another man found there; held, relevant to motive and not too remote to be relevant to state of mind at time of murder.)

Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970), presents a situation analogous to the case at bar. In Faison, the defendant killed a friend of his estranged girlfriend, believing that the victim was helping the girlfriend elude him. She testified that the defendant had raped and threatened to kill her and her children if she left him. The Commonwealth argued that the evidence of the threats and rape was relevant to establish the defendant’s settled malice to his girlfriend, and that this malice provided the motive for the murder of her friend. Upholding the admission of the evidence, the supreme court stated that “evidence of prior occurrences (e.g., previous threats) and prior offenses, if they are related to the offense for which defendant is on trial, may be admitted to show malice, motive, or intent.” Id., 437 Pa. at 446, 264 A.2d at 401. We believe the same may be said here.

With respect to Issue IV, Appellant in his brief appears to argue that each of the elements for first degree murder was not established beyond a reasonable doubt, but he does not specifically state which of the elements was not proven.

Appellant does concede that “[t]here is evidence that the defendant intentionally killed the deceased.” Appellant’s brief at 14. His brief suggests that the unchallenged evidence shows “that there was a struggle, that passion was involved, [and] that defendant tried to aid the deceased after the stabbing.” Id. These factors, however, are not inconsistent with the jury’s verdict of first-degree murder.

18 Pa.C.S. § 2502(a) defines Murder of the first degree in the following manner:

A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

Since it is conceded by Appellant that the killing was intentional, we must conclude that murder of the first degree was proven beyond a reasonable doubt.

Sufficient evidence exists on the record to support the jury’s verdict. While there may be unrebutted testimony which, if believed by the jury, could have raised a reasonable doubt, it is the function of the jury and not the trial judge to decide issues of credibility and reasonable doubt. Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314 (1984).

Judgment of sentence affirmed.

      . We may affirm a correct decision of the trial court on any basis. See Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 359, 437 A.2d 417, 424 (1981).


author: CERCONE, Judge: CIRILLO, Judge,

text:
    497 A.2d 1379
    COMMONWEALTH of Pennsylvania v. David Lee THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1984.
    Filed Sept. 13, 1985.
    Petition for Allowance of Appeal Granted March 6,1986.

      Judith A. Calkin, Harrisburg, for appellant.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CIRILLO and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the order of the Court of Common Pleas of Dauphin County dismissing appellant’s Post Conviction Hearing Act (PCHA) petition without an evidentiary hearing. We affirm in part and reverse in part.

On August 7, 1980, a jury found appellant guilty of robbery. Post-verdict motions were filed, denied, and appellant was sentenced to imprisonment for a term of seven and one-half to fifteen years. On direct appeal appellant’s sole contention was that the evidence was insufficient to sustain the verdict. A panel of this Court found appellant’s sufficiency argument meritless and affirmed the judgment of sentence per curiam. Commonwealth v. Thomas, 303 Pa. Super. 580, 450 A.2d 187 (1982). Appellant’s petition for allowance of appeal was denied by the Supreme Court on November 30, 1982. In December of 1982, appellant filed a pro se PCHA petition. Counsel was then appointed and filed a supplemental petition in February of 1983. On September 12, 1983, the court below denied the petition without a hearing and this appeal followed.

Appellant contends that an evidentiary hearing should have been held on the allegations contained in his PCHA petition. Those allegations are: (1) he was illegally sentenced because he was denied his right of allocution and that trial counsel was ineffective in both failing to inform him of that right and in not appealing the denial thereof; (2) trial counsel was ineffective in not requesting that the jury be instructed on the various degrees of robbery; and (3) trial counsel was ineffective in failing to request a mistrial after a Commonwealth witness arguably implied that appellant had a prior criminal record.

In pertinent part, the PCHA provides: “the court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner.” 42 Pa.C. S.A. § 9549(b). “While the right to an evidentiary hearing is not absolute, unless the PCHA court is certain of the total lack of merit of an issue raised in a PCHA petition, a hearing should be held on the issue.” Commonwealth v. Rhodes, 272 Pa.Super. 546, 555, 416 A.2d 1031, 1035-36 (1979). Judged by these standards, we are of the opinion that while one of appellant’s claims is indeed patently frivolous, the remaining two contentions have possible merit and, therefore, warrant a hearing.

We first conclude that appellant’s argument that his trial counsel was ineffective in failing to request that the jury be instructed on the lesser degrees of robbery is patently frivolous. Accordingly, we find no error in not conducting an evidentiary hearing regarding this particular issue.

As we recognized on appellant’s direct appeal, the primary basis for his conviction of robbery in the first degree was the testimony of Jean Shank who was employed at the Paxtang Daily Market. She testified that while she was operating the cash register, appellant placed his hand in the register drawer and began removing the bills. When Mrs. Shank protested, appellant told her: “Shut up lady. I have a gun, and I want your money.” (N.T. at 16). Appellant’s defense was alibi. Hence under the evidence presented appellant had to be found guilty of robbery in the first degree or acquitted. “If under the evidence presented in a criminal case the defendant must be found guilty of the offense charged or be entitled to an acquittal, the jury need not be instructed as to lower grades to which the evidence does not relate.” Commonwealth v. Showalter, 275 Pa.Super. 1, 4, 418 A.2d 580, 582 (1980); Commonwealth v. Wilds, 240 Pa.Super. 278, 362 A.2d 273. Since the evidence did not support a charge on the lesser degrees of robbery, counsel cannot be found ineffective for failing to request such an instruction. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

With respect to the contention that counsel was ineffective in failing to assert appellant’s right to allocution prior to sentencing, we are constrained to reverse and remand for a hearing. The Commonwealth maintains that no hearing was warranted because appellant’s PCHA petition did not contain supporting allegations as to how he was prejudiced by a denial of allocution. However, in the recent en banc case of Commonwealth v. Brown, 342 Pa.Super. 249, 492 A.2d 745 (1985), a majority of the court rejected this exact contention. In Brown four judges were of the opinion that allocution is such an important right that where the record confirms the petitioner was not afforded the right to speak prior to sentencing, relief is warranted notwithstanding the absence of any alleged prejudice arising from the denial of that right. In the case at bar, the record reveals that appellant was not invited by the court to speak prior to sentencing. Hence appellant’s allocution issue is clearly not frivolous despite his failure to allege any resulting prejudice. Thus the lower court erred in dismissing appellant’s PCHA petition without holding a hearing on this issue.

Lastly, appellant argues that he was denied effective assistance of counsel when his attorney failed to object or request a mistrial when a police officer testified on direct examination by the prosecutor that:

The defendant stated to me that if I could assure him his parole officer would rescind the probation detainer or parole detainer that was holding him in prison, and he could obtain bail, he would give me a statement implicating himself and another individual in this robbery. (N.T. at 74).

Appellant contends that the reference to a parole or probation detainer indicated to the jury that he had a prior criminal record. We cannot say that this contention is patently frivolous. The lower court, however, felt that even if the witness’s testimony amounted to an improper reference to a prior criminal record, counsel’s failure to object could be deemed harmless error in view of the Commonwealth’s overwhelming evidence of guilt. Perhaps so. Nonetheless, the claim does have arguable merit and warrants a hearing on why counsel failed to take any action.

In sum, we find that two of the claims advanced by appellant are not patently frivolous. On these two issues, therefore, we will remand for an evidentiary hearing by the PCHA court.

Affirmed in part; reversed and remanded in part. Jurisdiction is relinquished.

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

CIRILLO, Judge,

concurring and dissenting:

I respectfully dissent from the decision to remand for an evidentiary hearing, for in my view there is no arguable merit to appellant’s claims.

The majority first grants an evidentiary hearing to permit appellant to litigate counsel’s effectiveness in failing to preserve allocution rights. For the reasons stated in my opinion in support of affirmance in Commonwealth v. Brown, 342 Pa.Super. 249, 492 A.2d 745 (1985) (en banc), I believe that we should not reverse a trial court where a denial of allocution rights is claimed unless the appellant can demonstrate that he has something to say to the sentencing court that is likely to have a favorable impact on the sentence imposed. I continue to adhere to the statement of the law on this issue pronounced in Commonwealth v. Barton, 312 Pa.Super. 176, 182-83, 458 A.2d 571, 574-75 (1983):

A bare denial of the right to allocution, without evidence that appellant had something to say, will not require the vacation of an otherwise proper sentence. That which he wished to say, moreover, must be such as would likely have influenced the sentence imposed. To require a vacating of the sentence and a subsequent re-sentencing, appellant will have to show that the sentencing judge was either misinformed or uninformed regarding one or more relevant circumstances. The sentence need not be vacated in order to provide appellant an opportunity to speak if he has nothing significant to say. Commonwealth v. Rivera, 309 Pa.Super. 33, 39, 454 A.2d 1067, 1070 (1982).
The right to allocution is neither constitutional nor jurisdictional. The failure to ask a defendant if he has anything to say before sentence is imposed is not a fundamental defect inconsistent with rudimentary requirements of due process or an error inherently resulting in a miscarriage of justice. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417, 421 (1962). Thus, as the Supreme Court held in Hill, collateral relief is not available when a petitioner shows merely a formal failure to comply with a rule requiring the court to invite a defendant to speak before sentence is imposed.
The right of allocution in Pennsylvania is also based upon procedural rule. See: Pa.R.Crim.P. 1405(a). A mere failure to comply formally with the mandate of Rule 1405(a), which requires the court to invite a defendant to speak, does not destroy the validity of an otherwise legal sentence and render it susceptible to collateral attack. Hill v. United States, supra.

Since our Supreme Court has repeatedly held that we are not to consider claims of ineffectiveness of counsel in the abstract, see Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984); Commonwealth v. Anderson, 501 Pa. 275, 279, 461 A.2d 208 (1983); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981), I believe we are precluded from addressing an allocution claim raised through the medium of ineffectiveness of counsel unless the claimant points us to those specific facts that show his claim to be substantial rather than an empty alegation. See also 42 Pa.C.S. § 9545(b) (PCHA petitioner must set forth facts in support of his request for relief). In the context of an allocution claim, the facts that are important for us to know are those delineated in Barton, i.e., the specific matters the defendant would have brought to the attention of the sentencing court if given the opportunity. To grant relief for a bare denial of allocution rights, without requiring the appellant to indicate that there was something significant, or indeed anything at all, that he wished to say at sentencing, is to exalt the form of a mere procedural rule over the substance of a final judgment of sentence. As I stated in my opinion in Brown,

From a practical standpoint [it is] pointless in the extreme to vacate appellant’s sentence so that the sentencing court could have the benefit of appellant’s as-yet undisclosed allocution____ [A]s a practical matter it is far more reasonable to follow those cases which require a petitioner to state to the PCHA and appellate courts what he would have said at sentencing. Ordinarily, a petitioner has had a considerable amount of time to think between sentencing and appeal. If even after that time he still cannot formulate for the reviewing court what of significance he wished to say at sentencing, it will undoubtedly be a futile, uneconomical, and wasteful judicial exercise, as well as a hollow gesture of relief for the appellant, to remand for resentencing so that he may address the sentencing court. This Court should not so exalt the abstract right to allocution that we lose sight of its procedural purpose in the criminal justice system—that is, to permit a realistic opportunity for the defendant to attempt personally to influence the deliberations of the sentencing judge. As important as the right to allocution is, it is not absolute, and may be waived or abandoned not only at the time of sentencing, but also thereafter if the defendant demonstrates that he really had nothing to say anyway. Appellant has now had ten years to think since he was sentenced. If there is still a serious question whether he actually had anything to say at sentencing, we are certainly not asking too much by demanding that he tell us what it was.

342 Pa.Super. at 274-75 n. 3, 492 A.2d at 758 n. 3 (opinion in support of affirmance).

Appellant Thomas has not had ten years to formulate his allocution presentation; however, it was nearly three years from the entry of the judgment of sentence against him until he filed his PCHA petition. After the passage of so much time, and the appointment of new counsel, Thomas’s failure to articulate even in broad and general terms what he wished to say at sentencing compels the conclusion that his allocution claim is empty of content and devoid of merit. The majority’s decision allowing further litigation of this issue under the rubric of ineffectiveness of counsel will itself turn out to be, in all likelihood, an empty gesture and a regrettable waste of judicial resources. As the Commonwealth argues in its brief, “There is simply no legitimate reason why the court should schedule an evidentiary hearing and have Appellant transported across the state only to find that Appellant did not, in fact, have anything—or anything significant—to say.” Unfortunately, my sympathy with the Commonwealth’s position in this case can only extend so far, for Brown decided the precise issue raised here adversely to the Commonwealth, and the Commonwealth then in effect abandoned its position by failing to petition for review in the Supreme Court of Pennsylvania. This relinquishment of the claim occurred despite the fact that the Commonwealth was represented in both cases by the Dauphin County District Attorney, and despite the importance which this Court obviously attached to the Brown case, as signified by our sua sponte order directing reargument and the sharp division which the case eventually produced among the members of the en banc Court hearing the appeal. In any event, the Brown decision precludes a finding in the Commonwealth’s favor in this appeal, and were I not writing in dissent I would consider myself bound to follow Brown. Incidentally, the majority’s disposition is not procedurally the same as what was done in Brown, which was to vacate the judgment of sentence directly and remand for sentencing, thus bypassing the evidentiary hearing on counsel’s effectiveness. Nevertheless, I expect that as a practical matter there can be no difference between remanding for resentencing and remanding for a hearing, when the ultimate issue remains the effect if any of appellant’s statements on the sentence he must suffer.

On the second ground on which the majority chooses to remand, I would find no merit to appellant’s claim that counsel was ineffective for not objecting to the introduction of a statement that appellant made to a police witness. Appellant’s statement to the police officer amounts to nothing more than an extra-judicial admission. An admission, in its most basic form, is a statement or act of a party to a lawsuit, offered against him at trial by a party-opponent. See generally McCormick’s Handbook of the Law of Evidence, §§ 262-275 (2nd ed. 1972); 4 Wigmore, Evidence §§ 1048-1087 (Chadbourn rev. 1972). Thus, “[ajdmissions of an accused in criminal cases are properly admitted into evidence and may be considered in connection with other facts and circumstances to prove guilt.” Commonwealth v. Meehan, 198 Pa.Super. 558, 565, 182 A.2d 212, 216 (1962), rev’d on other grounds, 409 Pa. 616, 187 A.2d 579 (1963). Merely because the statement contains some reference to a parole or probation detainer should not serve as a basis for removing it from this well-recognized exception to the hearsay rule. I would find appellant’s underlying contention to be without merit. “[Cjounsel cannot be found ineffective for failing to pursue a meritless argument.” Commonwealth v. Carter, 329 Pa.Super. 490, 500, 478 A.2d 1286, 1291 (1984).

In conclusion, I would affirm the order of the PCHA court.

      . We note that appellant did not waive his claims of ineffective assistance of counsel by virtue of his failure to raise them on direct appeal because trial counsel also represented him at that stage. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

      . 18 Pa.C.S.A. § 3701(a)(l)(ii).

      . The Commonwealth, in addition to adopting the lower court’s harmless error analysis, speculates that counsel had a reasonable basis for not objecting. The Commonwealth may ultimately be proved correct. However, absent an evidentiary hearing on this issue, we must reserve judgment. See Commonwealth v. Box, 305 Pa.Super. 81, 451 A.2d 252 (1982).


author: WIEAND, Judge:

text:
    497 A.2d 1384
    Leonard J. KALINA, Appellant, v. Melvin L. ECKERT and Mildred E. Eckert, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1984.
    Decided Aug. 2, 1985.
    Reargument Denied Oct. 9, 1985.

      David C. Keiter, York, for appellant.
    John D. Miller, Jr., York, for appellees.
    Before WICKERSHAM, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

In this action in equity to enforce an agreement for the sale of real estate, the trial court entered a summary judgment in favor of the sellers. The buyer, the court held, had forfeited his rights under the agreement of sale because a formal mortgage commitment had been obtained two days after the date required by the agreement. We reverse.

In determining whether summary judgment is proper, a court must examine the record in the light most favorable to the non-moving party, and all doubt must be resolved against the entry of such a judgment. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82, 468 A.2d 468, 470 (1983); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982).

Equity, it has been said, abhors a forfeiture and is greatly hesitant to enforce one. See: Sgarlat v. Griffith, 349 Pa. 42, 48, 36 A.2d 330, 333 (1944); Shaw v. New Amsterdam Casualty Co., 310 Pa. 213, 216, 164 A. 916, 917 (1932); Baldwin v. American Motor Sales Co., 309 Pa. 275, 280, 163 A. 507, 509 (1932); Straup v. Times Herald, 283 Pa.Super. 58, 68, 423 A.2d 713, 718 (1980); Barraclough v. Atlantic Refining Co., 230 Pa.Super. 276, 281, 326 A.2d 477, 479 (1974). This is especially so where “the contract has been carried out or its literal fulfillment has been prevented by oversight or uncontrollable circumstances.” Barraclough v. Atlantic Refining Co., supra. A forfeiture clause is enforceable, but only if it is expressed with clearness and certainty. Sgarlat v. Griffith, supra; Baldwin v. American Motor Sales Co., supra. Thus, a court must review the contract in its entirety, and a provision will not be construed to result in a forfeiture unless no other reasonable construction is possible. See: Shipley v. Pitts burgh & L.E.R. Co., 83 F.Supp. 722, 747 (W.D.Pa.1949); Sgarlat v. Griffith, supra; Hild v. Dunn, 310 Pa. 289, 293, 165 A. 228, 229-230 (1933).

The meaning of the maxim “equity abhors a forfeiture” is demonstrated by the facts of the instant case. On October 3, 1983, Leonard J. Kalina and Melvin and Mildred Eckert entered an agreement by the terms of which Kalina agreed to buy and the Eckerts agreed to sell real estate known as No. 108-112 Oak Street, York Township. The agreement contained a clause that “[t]his contract to be null and void if financing is not obtained on or before November 15, 1983, said time is hereby agreed to be the essence of this agreement.” The buyer made an application for mortgage financing to First Federal Savings and Loan Association of Hanover on October 21, 1983. He was assured prior to November 15, 1983 that his application would be approved. He was told, however, that the Savings and Loan Association would require a new financial statement. The financial statement was supplied, and the Board of Directors, at a meeting on November 17, 1983, formally approved the loan application and issued a written, mortgage commitment. The sales agreement provided for settlement prior to November 30, 1983, and this time was also made of the essence. When the buyer heard nothing about the scheduling of final settlement, he made inquiry. He then learned for the first time that the sellers had taken the position that they were relieved of their contractual obligation because a formal mortgage commitment had not been issued prior to November 15. The buyer had not previously been notified that the sellers wished to avoid their agreement to sell, and he was ready, willing and able to hold final settlement within the time for closing established by the terms of the agreement.

The agreement of sale did not require a formal mortgage commitment by November 15, 1983. It required only that financing be obtained. The buyer in this case made prompt application for financing and received oral assurance prior to November 15 that financing would be made available to him to close the transaction. This was sufficient to prevent a declaration of forfeiture without notice by the seller. See: Session v. Yack, 18 D. & C.2d 333 (C.P.Phila.1958) (informal approval met contract requirement that mortgage approval be obtained by a specific date).

The financing contingency in this agreement was for the benefit of the buyer. It allowed the buyer to escape his obligation to purchase the land if he could not obtain the necessary financing to close. The date for settlement, which was also made of the essence, provided assurance to the sellers that the property would not unduly be tied up by provisions of a sales agreement which the buyer could not consummate by final closing. In this case, the buyer was ready, willing and able to settle prior to the prescribed settlement date. Under these circumstances, the sellers should not have been permitted to avoid their contractual obligation to convey merely because of a nonprejudicial failure by the Savings and Loan Association to issue a formal, mortgage commitment on the precise day required by the agreement. It was sufficient compliance that the buyer had obtained timely assurance that financing would be available so that he could close the transaction within the time allowed therefor.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . Appellant states the question on appeal as follows: “Is plaintiff, Leonard J. Kalina, entitled to specific performance of his contract to purchase real estate from defendants, Melvin and Mildred Eckert?".


author: DEL SOLE, Judge:

text:
    497 A.2d 1386
    Glenn M. BOBAK, Appellant, v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 12, 1985.
    Decided Aug. 2, 1985.
    Reargument Denied Oct. 9, 1985.

      Jerry B. Landis, Pittsburgh, for appellant.
    Michael L. Magulick, Pittsburgh, for appellee.
    Before DEL SOLE, HESTER and FEENEY , JJ.

       Judge John M. Feeney, of the Court of Common Pleas of Allegheny County, Pennsylvania, is sitting by designation.

   DEL SOLE, Judge:

The Appellant, Glenn Bobak, who carried a No-Fault insurance policy with the Appellee, was injured in a motor vehicle accident. Mr. Bobak missed more than seven months work due to the injuries he suffered, and was paid No-Fault benefits other than the claim he asserts here. Because of the time he missed at work he was deprived of credits toward unemployment compensation benefits. Thus, when he was subsequently laid off due to lack of work, his unemployment compensation benefits were substantially lower than what they would have been if he had not been injured in the accident. When the Appellee, Allstate Insurance Company, denied Mr. Bobak’s claim for the difference between what he actually received in unemployment compensation benefits and what he would have received if he had not been injured, Mr. Bobak brought an action against Allstate to recover this amount. The trial court found for Allstate and Mr. Bobak appealed.

The sole issue before us is whether, when an insured has missed time from his employment by reason of personal injuries sustained in a motor vehicle accident, and by reason of such loss of time has been deprived of credits toward unemployment compensation benefits, is the loss of such benefits a work loss as defined under the provisions of the Pennsylvania No-Fault Motor Vehicle Act. This appears to be the first time this issue has come before this Court. We affirm the finding of the trial court and find that the Act does not provide that the Appellant’s claim is a compensible work loss.

Appellant argues that since the goal of the statute is to provide “adequate basic loss benefits” and “maximum feasible restoration”, the announced legislative purpose of the statute would not be achieved if he does not recover his losses in unemployment compensation benefits. Appellant also reminds us that the courts of the Commonwealth have found in favor of the insured in close or doubtful cases. He argues that the loss in unemployment benefits is an accrued loss and not a future loss and thus is recoverable under the No-Fault Act. Appellant sees his loss as part of a loss of gross income and argues that as such is compensible.

Appellee argues that since the statute does not specifically provide the benefits with Appellant seeks, the legislature must have intended the omission. Appellee further argues that the recovery sought by the Appellant is for a loss which was suffered after his period of disability and is therefore a future, not an accrued economic detriment.

Although Appellant argues correctly that the courts of the Commonwealth have interpreted the No-Fault Act liberally in favor of the insured, we find that the statute does not permit the recovery which the Appellant now seeks. The statute defines “loss” as “the accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle, consisting of, and limited to, allowable expense, work loss, replacement service loss, and survivors loss.” 40 P.S. § 1009.103. (Emphasis added). The only category of loss listed in this section which Appellant’s claim might fall is “work loss”. The definition section of the Act says that “work loss” means loss of gross income and sends us to 40 P.S. § 1009.205 to determine how to calculate work loss. Section 1009.205(a) is the work loss section applicable to the Appellant, who was regularly employed at the time of the accident. It provides:

(a) Regularly employed.—The work loss of a victim whose prior to the injury was realized in regular increments shall be calculated by:
1. determining his probable weekly income by dividing his probable annual income by fifty-two; and
2. multiplying that quantity by the number of work weeks, or fraction thereof, the victim sustains loss of income during the accrual period.

40 P.S. § 1009.205(a).

The statute sets forth the calculation of work loss on the basis of gross income during the accrual period, which means the period of disability. The Appellant received income in the form of unemployment compensation after the accrual period, that is, after he had recovered and returned to work for a time. We cannot stretch the meaning of the statute to include the earning of credits toward a possible receipt of benefits after the accrual period. Such credits are not gross income.

The fact is that the No-Fault Act does not necessarily make a person financially whole regardless of his losses. Work loss benefits are limited to $15,000 a year, for example, and the survivors loss is limited to $5,000. While losses not covered by No-Fault benefits may be sought by an accident victim who files an action against a third party tortfeasor, the No-Fault statute itself does not necessarily put an accident victim in the same economic position he was in before the accident. We therefore affirm the order of the trial court and find that the Appellant is not entitled to recover for unemployment compensation benefits for which he became eligible after his automobile accident.

Order affirmed.

      . Appellant recieved $80 a week for sixteen weeks in unemployment compensation. Had he not been disabled due to the accident, he would have worked and earned increased credits toward unemployment compensation benefits, and his compensation would have been $188 for sixteen weeks, $167 for an additional thirty weeks and nine weeks extended benefits at $167 a week. There is no dispute between the parties that his total compensation had he not been injured would have been $9,521 as compared with what he actually received, $1,280, for a net loss of $8,241.


author: WIEAND, Judge: JOHNSON, Judge,

text:
    498 A.2d 374
    In re the ESTATE OF Mike KOVALCHICK, Deceased. Appeal of Adele BALDWIN, Exceptant.
    Superior Court of Pennsylvania.
    Argued April 10, 1985.
    Filed July 26, 1985.
    Reargument Denied Oct. 7, 1985.

      Nicholas F. Lorenzo, Jr., Punxsutawney, for appellant.
    David Blakley, DuBois, for appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

The sole issue in this appeal is the sufficiency of the evidence to prove the existence of a common law marriage. The Orphans’ Court in Jefferson County concluded that Adele Baldwin, the appellant, had failed to establish that she was the common law wife of the decedent, Mike Kovalchick. Therefore, the court denied appellant the right to take against the decedent’s will. We affirm.

After the will of Mike Kovalchick, deceased, had been admitted to probate, Adele Baldwin, alleging that she was Kovalchick’s widow, filed an election to take against his will. A master was appointed and conducted an evidentiary hearing, at which conflicting testimony was presented. The master decided the credibility issue adversely to appellant and recommended to the court that it find that appellant and the decedent had not been married. Exceptions were filed and argued, but the court accepted the master’s recommendations and found that appellant had failed to prove a common law marriage.

The burden of proving the alleged marriage was on appellant. Estate of Gavula, 490 Pa. 535, 540, 417 A.2d 168, 171 (1980). Because the courts have regarded common law marriage as a fruitful source of fraud and perjury, common law marriages are to be tolerated but not encouraged. In re Estate of Stauffer, 504 Pa. 626, 629, 476 A.2d 354, 356 (1984); Estate of Gavula, supra; Wagner’s Estate, 398 Pa. 531, 533, 159 A.2d 495, 497 (1960). Therefore, “the law imposes a heavy burden on one who grounds his or her claim on an allegation of common law marriage. This is especially so where one of the parties is dead and the claim, so grounded, is to share in the distribution of the estate.” Estate of Gavula, supra, 490 Pa. at 540-541, 417 A.2d at 171. Accord: In re Estate of Stauffer, supra; Manfredi Estate, 399 Pa. 285, 159 A.2d 697 (1960); Baker v. Mitchell, 143 Pa.Super. 50, 17 A.2d 738 (1941).

In the instant case, the orphans’ court found that there had not been a common law marriage. That finding, if supported by competent evidence, is entitled to the same weight as the verdict of a jury. A decree based thereon will not be reversed in the absence of an abuse of discretion or an error of law. In re Cummings Estate, 330 Pa.Super. 255, 261, 479 A.2d 537, 541 (1984).

Appellant testified that in June, 1981 she and the decedent had gone to a family altar in the woods behind decedent’s home and there exchanged marriage vows. She produced witnesses who testified that following June, 1981, the decedent had told them of the marriage and referred to appellant as his wife. There was other evidence, however, that decedent had stated, even after June, 1981, that marriage was not for him and that he would never marry. At his funeral, appellant had referred to herself as the decedent’s fiancee. Appellant conceded that the decedent had not generally acknowledged their marriage in public, primarily because his relatives did not care for her. She testified that she had moved into the decedent’s home in 1977 and that she had lived there with him off and on until 1980. After 1981, she said, “we really lived together, very much.” This testimony was corroborated by witnesses called by appellant who had visited decedent’s home and had observed her there. It was contradicted, however, by relatives of the decedent who had lived near the decedent and had visited him regularly. They testified that there had been periods of varying duration when appellant had not been present in the decedent’s home and that when she had been present, appellant had assumed the role of housekeeper and occupied a separate bedroom.

Marriage is a civil contract in Pennsylvania. “The contract does not require any specific form of words, and all that is essential is proof of an agreement to enter the legal relationship of marriage at the present time.” Estate of Gavula, supra, 490 Pa. at 540, 417 A.2d at 171. Accord: In re Estate of Garges, 474 Pa. 237, 378 A.2d 307 (1977). Because it is often difficult to prove a civil contract of marriage, the law has permitted that it be established by circumstantial evidence. Thus, an inference of marriage can be drawn, the courts have held, where two absolutely essential elements co-exist: constant cohabitation and general, as distinguished from partial or divided, reputation of marriage. Estate of Gavula, supra, 490 Pa. at 540 n. 7, 417 A.2d at 171 n. 7; Manfredi Estate, supra, 399 Pa. at 291, 159 A.2d at 700. In In re Cummings Estate, supra, a unanimous panel of this Court said, in language which has equal application to the instant case, the following:

Constant cohabitation of a man and woman together with a general reputation as husband and wife in their community raise a presumption that the parties have contracted marriage. In Re Estate of Garges, 474 Pa. at 241, 378 A.2d at 309; Manfredi Estate, 399 Pa. 285, 291, 159 A.2d 697, 700 (1960). See VanBrakle v. Lanauze, 293 Pa.Super. 276, 438 A.2d 992 (1981). However, the presumption is rebuttable and it “will wholly disappear in the face of proof that no marriage existed.” Commonwealth ex rel. McDermott v. McDermott, 236 Pa.Super. [541] at 544, 345 A.2d [914] at 915 [ (1975) ]. Moreover, a presumption of marriage based on cohabitation and reputation will not arise where the parties admit that they lived together unmarried up to the time of the alleged agreement to create a marriage relationship. See Stevenson’s Estate, 272 Pa. 291, 297, 116 A. 162, 164 (1922). Where a relationship between a man and a woman is “illicit and meretricious” in its inception, it is presumed to so continue during the cohabitation of the parties. That presumption will be rebutted only if the consent of both the parties to enter into a valid marriage is established by clear and convincing evidence. Stauffer Estate, 372 Pa. 537, 539, 94 A.2d 726, 727-728 (1953); Commonwealth ex rel. DeMarco v. DeMarco, 166 Pa.Super. 69, 71, 70 A.2d 384, 386 (1950). See In Re Estate of Garges, supra; Brown v. Atlantic and Gulf Stevedores, Inc., 2 Pa. Commw. 481, 279 A.2d 372 (1971). Finally, a claimant who asserts the existence of a marriage bears the burden of proving by clear and convincing evidence that a change in the meretricious status occurred. See e.g., Common wealth ex rel. DeMarco v. DeMarco, supra; In Re Estate of Garges, supra.

Id. 330 Pa.Super. at 263-64, 479 A.2d at 542 (emphasis in original) (footnote omitted).

In the present case, the relationship between appellant and the decedent was meretricious at its inception. Therefore, the court could find that it continued to be meretricious unless appellant proved by evidence that was clear and convincing that the meretricious relationship had been superseded by a consensual agreement of marriage. A review of the record in the instant case does not permit us to conclude that the orphans’ court abused its discretion when it found that appellant had failed to meet the burden of proving a valid marriage.

Appellant argues that the orphans’ court misunderstood the law because it implied in its opinion that she was required to prove cohabitation and reputation in addition to a contract of marriage. Appellant suggests, correctly, that a common law marriage exists whenever an agreement of marriage is entered by an exchange of words in praesenti. Cohabitation and reputation are merely circumstances from which the existence of a contract of marriage can be inferred. Evidence thereof may also “be received and considered in corroboration of testimony that a marriage contract was in fact entered into.” Rager v. Johnstown Traction Co., 184 Pa.Super. 474, 477-478, 134 A.2d 918, 920 (1957). The inference of marriage to be drawn from cohabitation and reputation, however, fails upon proof that no marriage contract was entered. Pierce v. Pierce, 355 Pa. 175, 179, 49 A.2d 346, 348 (1946); In re Cummings Estate, supra, 330 Pa.Super. at 263, 479 A.2d at 542. We are satisfied that these principles were understood and correctly applied by the orphans’ court. The master recommended and the court found that appellant had failed to prove either a contract of marriage or cohabitation and reputation. The absence of a general reputation that appellant and decedent were husband and wife was a significant fact in weighing the credibility of appellant’s testimony that an agreement of marriage had been made. An inadvertent suggestion that there must be cohabitation and reputation in addition to contract of marriage was harmless.

Affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I wholeheartedly agree with the majority opinion that a common law marriage exists whenever an agreement of marriage is entered by an exchange of words in praesenti. In re Estate of Stauffer, 54 Pa. 626, 476 A.2d 354 (1984); Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979); In re Estate of Gower, 445 Pa. 554, 284 A.2d 742 (1971); In re Cummings Estate, 330 Pa.Super. 255, 479 A.2d 537 (1984). I also agree that cohabitation and reputation are merely circumstances from which the existence of a contract of marriage can be inferred, In re Manfredi’s Estate, 399 Pa. 285, 159 A.2d 697 (1960); In re Wagner’s Estate, 398 Pa. 531, 159 A.2d 495 (1960); In re Estate of Rees, 331 Pa.Super. 225, 480 A.2d 327 (1984), and that the inference of marriage to be drawn from cohabitation and reputation fails upon proof that no marriage contract was entered. In re Estate of Rees, supra.

I can not agree, however, that these principles were understood and correctly applied by the orphans’ court.

The settled law in Pennsylvania defines a common law marriage as “a marriage by the express agreement of the parties without ceremony, and almost invariably without a witness, by words—not in futuro or in postea, but—in praesenti, uttered with a view and for the purpose of establishing the relationship of husband and wife.” In re Manfredi’s Estate, supra, 399 Pa. at 291, 159 A.2d at 700 (emphasis in original). It is my understanding that this is the only prerequisite for a common law marriage.

My review of the record does not disclose any point in the proceedings where either the Master or the trial judge ever determined, as a fact, that words constituting a marriage contract were or were not exchanged between Mike Kowalchick and Adele Baldwin. Such a finding of fact is necessary, in my view, before any discussion of cohabitation and reputation is warranted.

I would vacate the Decree Nisi and judgment entered thereon and would remand for a finding of fact on this crucial issue and for further proceedings not inconsistent with the views expressed herein.