author: CIRILLO, Judge: BECK, Judge,

text:
    625 A.2d 1197
    COMMONWEALTH of Pennyslvania, Appellant v. Samuel BONACCURSO.
    Superior Court of Pennsylvania.
    Argued January 7, 1993.
    Filed April 22, 1993.
    Reargument Denied June 22, 1993.

      Marilyn F. Murray, Asst. Dist. Atty., Philadelphia, for Com. appellant.

      F. Kirk Adams, Media, for appellee.
    Before CIRILLO, BECK and KELLY, JJ.
   CIRILLO, Judge:

The Commonwealth appeals the grant of a new trial to Samuel Bonaccurso who was convicted of first-degree murder in 1978. The post-conviction court found that Bonaccurso was entitled to a new trial because he had been deprived of his right to testify at his original trial and because after-discovered evidence would affect the outcome of the trial. We affirm.

Bonaccurso was charged with murder and possession of an instrument of crime after Ronald Simone was shot to death in front of his (Simone’s) Philadelphia car repair shop. Bonaccurso’s trial counsel, Robert Simone, pursued a defense of misidentification. Bonaccurso was convicted of first degree murder. Post-trial motions were filed and denied. Bonaccurso then hired Stanford Shmukler to conduct his appeal. Shmukler felt he had a strong appeal based on the failure of the Commonwealth to disclose the existence of a surprise witness. That appeal was not successful. Shmukler then took Bonaccurso’s case to federal court on a habeas corpus petition, which was also unsuccessful. Bonaccurso’s third attack on his conviction was to ask for relief under the Post Conviction Relief Act, 42 Pa.C.S. § 9543, on two grounds, a constitutional infirmity in his original trial and after-discovered evidence. The Honorable James McCrudden of the Philadelphia Court of Common Pleas found merit in both of Bonaccurso’s contentions and granted him a new trial. It is from that order that the Commonwealth appeals.

During Bonaccurso’s bench trial the evidence established that the victim, Ronald Simone, rented a car storage lot from Bonaccurso. Bonaccurso had chained and padlocked the lot, apparently because Simone had not paid the rent. At midnight on April 29,1978, Simone and a friend, Joseph DiFilippo, cut the chain on the lot and towed a 1962 or 1963 Thunderbird from the lot to Simone’s car repair shop. The next day, April 30, Bonaccurso was looking for Simone. First he called Simone’s girlfriend and threatened to put Simone “in the hospital.” Then he called Simone’s garage. About five o’clock in the afternoon of April 30, a maroon Pacer pulled up in front of Simone’s garage and the passenger asked for Ronald. Traffic forced the Pacer to go around the block; when it returned to the garage, Simone was standing in front of the garage. DiFilippo, who was at the repair shop Sunday afternoon, and Andre Waddell, a 13-year-old eyewitness who was walking down the street, testified that the passenger in the Pacer fired three shots. DiFilippo heard a click of a misfire and then saw the last shot which went into Simone’s right temple and killed him.

The issue at the trial was identification. DiFilippo originally identified Bonaccurso as the shooter in a statement to police. At the preliminary hearing DiFilippo invoked the Fifth Amendment. At trial, DiFilippo was no longer able to identify Bonaccurso as the shooter. Andre Waddell was the surprise -witness who identified Bonaccurso as the shooter. Bonaccurso’s trial counsel, Robert Simone, mounted a strenuous objection to Waddell’s testimony because the Commonwealth had not listed him as a witness when he (Simone) demanded any identification evidence before the trial. Bonaccurso was convicted of first-degree murder and a weapons violation and sentenced to mandatory life in prison.

A different picture of the day’s events emerges from testimony during the evidentiary hearing on Bonaccurso’s Post-Conviction Relief Act petition. The evidence elicited at the hearing was that Simone was also armed with a gun with which he threatened Bonaccurso and that the final shot was fired in a manner which is not inconsistent with an accidental shooting. Neil Savasano testified that on the day Ronald Simone was killed he was painting an upstairs apartment which overlooked the shooting scene. Savasano said he saw Simone and Bonaccurso arguing, and that both men were holding guns. Savasano left the window to answer the telephone; while he was away from the window he heard gun shots. When Savasano returned to the open -window, he heard Simone shout at Bonaccurso to “come back” and saw Simone point his gun at Bonaccurso. Savasano saw Bonaccurso get back in his car; as he did so, Savasano testified, a last shot was fired and Simone went down. Before Savasano slipped out of the back door of the apartment, he said he saw Simone’s brother hide the gun Simone had been holding. Savasano lied to the police at the time of the killing and said he had left the apartment for dinner and had seen nothing.

Bonaccurso testified to the same series of events as recounted by Savasano. He added that when he jumped back in the car, he was ducking down because he was afraid Simone was about to shoot; as he ducked down, Bonaccurso said, his gun went off accidentally. Bonaccurso told essentially the same story on the evening of the shooting to a police officer, who was a friend and not the investigating officer.

We are asked to consider whether the post-conviction court erred when it granted a new trial based on the after-discovered evidence of the testimony of Neil Savasano and others.

When we examine the decision of a trial court to grant a new trial on the basis of after-discovered evidence, we ask only if the court committed an abuse of discretion or an error of law which controlled the outcome of the case. Commonwealth v. Cooney, 444 Pa. 416, 417, 282 A.2d 29, 30 (1971). The decision to grant a new trial on the basis of after-discovered evidence on a collateral appeal is premised on the standards set forth in the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. A person is eligible for relief if he has been convicted of a crime and is imprisoned, and he can show that his conviction is the result of “[t]he unavailability at the time of trial of exculpatory evidence that subsequently became available and that would have affected the outcome of the trial if it had been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi).

To properly sustain a collateral petition for a new trial on the basis of after-discovered evidence, the evidence must have been unavailable at the time of trial, it must be exculpatory, and it must be of such a quality that it would change the outcome of the trial. Evidence which the courts of Pennsylvania have found to be unavailable at the time of trial include social security records which were held in a suspension file and were not accessible to a search by social security number. Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978). In Valderrama the defendant in a first-degree murder case had offered an alibi that he was working in Puerto Rico at the time that the murder was alleged to have occurred in Pennsylvania. He was convicted after the Commonwealth argued to the jury that social security files showed no record of his work in Puerto Rico at the material time. Later it was discovered that his wages had been recorded without a social security number and that the record had been held awaiting the number. He was granted a new trial on the common law standard for after-discovered evidence introduced on direct appeal:

[T]he evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility, and must be such as would likely compel a different result.

Commonwealth v. Schuck, 401 Pa. 222, 229, 164 A.2d 13, 17 (1960) , cert. denied, 368 U.S. 884, 82 S.Ct. 138, 7 L.Ed.2d 188 (1961) . Schuck was convicted of first-degree murder on charges stemming from an ambush killing. He sought to offer after-discovered evidence that he had been in a fist-fight earlier in the evening as corroboration of his defense that he was drunk. The court held that the evidence was merely cumulative and did not compel a different result. Other examples of evidence which was unavailable at the time of trial include a bullet lodged in the defendant’s skull, previously undetected, which serves to confirm his defense that his victim shot him first and then was killed accidentally or as a suicide in remorse. Commonwealth v. Cooney, supra. A witness was after-discovered evidence in Commonwealth v. Bulted, 443 Pa. 422, 279 A.2d 158 (1971). In Butted, the prosecutor argued to the jury repeatedly that the defense had failed to produce a “phantom” witness, one Francisco, with whom the victim was allegedly having an affair. The production of Francisco, who confirmed the husband-defendant’s version of events, satisfied the after-discovered evidence rule. Id.

The question of whether the proffered after-discovered evidence is, in fact, exculpatory is best illustrated by two cases which involve the same after-discovered evidence. A laboratory technician who frequently testified for the Commonwealth was discovered to have falsified her credentials. In one case, Commonwealth v. Mount, 435 Pa. 419, 257 A.2d 578 (1969), the perjured lab technician offered the only evidence that a murderer also raped his victim. The three-judge panel sitting on the penalty phase after a guilty plea to an open charge of murder imposed the death penalty, finding that the rape was a brutal, aggravating circumstance warranting execution. Id. at 428, 257 A.2d at 582. Since the testimony of the false technician was the only evidence of rape, the state Supreme Court ordered a new trial. The same lab technician’s testimony was also the focus of a new trial request in Commonwealth v. Alston, 430 Pa. 471, 243 A.2d 404 (1968). There the court found that other evidence amply established the elements of assault and battery, intent to ravish, and corrupting the morals of a minor. The abuser admitted that a handkerchief contained semen; thus, the only issue which remained was when and how it got there. Id. at 475, 243 A.2d at 407. Therefore, the discovery that the lab technician’s testimony was perjured was not exculpatory.

The final prong of the test for a new trial based on after-discovered evidence is that it “affect the outcome of the trial.” 42 Pa.C.S. § 9543(a)(2)(vi). In the common law this standard was expressed as “compel a different result,” Schuck, supra, or be of such a character that “a different verdict would likely result.” Commonwealth v. Coleman, 438 Pa. 373, 377, 264 A.2d 649, 651 (1970).

In the case at hand, Bonaccurso premised his trial defense on misidentification, in effect conceding that a first-degree murder may have been committed but that he was not the one who did it. When the Commonwealth’s surprise eyewitness, 13-year-old Andre Waddell, identified Bonaccurso as the man who shot Simone, his defense of misidentification fell apart. Bonaccurso argues that he then asked his trial attorney, Robert Simone, if he (Bonaccurso) could take the stand and “tell what really happened.” Simone elected to stay with the misidentification defense; Bonaccurso was convicted. On direct appeal, attorney Shmukler also remained with the misidentification defense because he felt he had a strong argument that the Commonwealth had violated its obligations of disclosure to Bonaccurso by surprising him with the testimony of Waddell. Again Bonaccurso said he told Shmukler “what happened and everything.”

When we consider whether granting Bonaccurso a new trial was an error of law we must decide whether the evidence was unavailable, whether it is exculpatory, and whether it would affect the outcome of the trial. The first question is easily disposed of. Savasano left the scene and lied to the police about whether he had seen any of that day’s events. He was unavailable. Whether the evidence is exculpatory is also straightforward. Bonaccurso’s and Savasano’s version of the events, if believed, paints a picture of third-degree murder, not first-degree. When a defendant is found guilty of third-degree murder, that verdict implies a verdict of not guilty on the charge of first-degree murder. Therefore, testimony which would make more likely than not a change in degree from first to third is exculpatory.

Finding that Savasano’s evidence is exculpatory is not, however, the end of our investigation. For a new trial to properly have been granted, the after-discovered evidence also must be of such a character that it would “effect the outcome of the trial.” Thus, our question becomes: Is a change in degree of guilt a change in the outcome of the trial?

In three instances in which the' after-discovered evidence would have had an affect on the degree of guilt found at trial, the Pennsylvania Supreme Court has granted a new trial. In Commonwealth v. Cooney, supra, the defendant had argued that the victim shot him first, that he blacked out, and that the victim was shot either in the struggle or shot herself in suicidal remorse. He was convicted of first-degree murder. When an X-ray revealed a bullet lodged in his skull, the court held that it was evidence which would likely lead to a different verdict and, so, granted a new trial.

In Commonwealth v. Bulted, supra, the defendant was convicted of first-degree murder after his wife’s body was found in their home. At trial the Commonwealth painted a picture of a dutiful and exemplary wife whom the defendant had killed for no apparent reason. The defense argued that his wife was seeing a man named Francisco, that the husband had intercepted his wife with Francisco, that there had been a fist fight which had splattered blood on the defendant’s shirt. Francisco, it later developed, did exist, was the wife’s paramour and did fight with the husband, splattering his shirt with blood. The court found that “the great discretion given to a jury to choose between the various degrees of homicide ... a second trial would be likely to produce a different result.” Bulted, 443 Pa. at 429, 279 A.2d at 162. The court suggested that sufficient provocation existed to find voluntary manslaughter. Id. In Mount, supra, the state Supreme Court found that after-discovered evidence justified a new trial when the after-discovered evidence contradicted an aggravating circumstance, which, while it did not affect the degree of guilt, was in fact the only evidence on which the three-judge panel relied to impose the death penalty rather than life in prison.

When, however, a defendant offered after-discovered evidence of his own instability to mitigate a conviction for first-degree murder, the court found that a new trial was not warranted. Commonwealth v. Clanton, 395 Pa. 521, 151 A.2d 88 (1959). Nor did this court grant a defendant a new trial after a conviction for assault and battery when the defendant discovered later that the victim’s injuries were less severe than presented at trial. Commonwealth v. Moskovitz, 142 Pa.Super. 325, 16 A.2d 317 (1940). The court reasoned the after-discovered evidence did not go to guilt or innocence, did not refute grievous bodily harm, and that the sentence imposed was within the range of that for simple assault in any case.

The after-discovered evidence in this case is exculpatory, Mount, supra, and it would likely affect the outcome of the trial. Cooney, supra; Butted, supra. If Bonaccurso and Savasano testify at trial as they did at the PCRA hearing, it would be difficult for the Commonwealth to prove the premeditation and lack of provocation which a conviction for first-degree murder would require. Thus, the after-discovered evidence makes granting Bonaccurso a new trial proper. Cooney, supra; Butted, supra; 42 Pa.C.S. § 9543(a)(2)(vi), supra.

Order affirmed.

BECK, J., files a concurring opinion.

KELLY, J., concurs in the result.

BECK, Judge,

concurring.

I agree with the majority that the trial court did not abuse its discretion in awarding appellee-defendant a new trial based on after-discovered evidence. Applying the after-discovered evidence test to the evidence upon which defendant based his PCRA petition, the PCRA court properly concluded that the new witness’ testimony (1) was unavailable at the time of trial, (2) did not merely corroborate other defense evidence presented at trial, (3) did not merely impeach the Commonwealth’s evidence, and (4) would have affected the outcome if introduced at trial by resulting in defendant’s conviction of a lesser degree of homicide. 42 Pa.C.S.A. § 9543(a)(2)(vi); Commonwealth v. Schuck, 401 Pa. 222, 229, 164 A.2d 13 (1960), cert. denied, 368 U.S. 884, 82 S.Ct. 138, 7 L.Ed.2d 188 (1961).

I point out, however, that this case expands the use of after-discovered evidence into virgin territory. In the cases cited by the majority as controlling this case, the after-discovered evidence independently and reliably corroborated the defense theory presented at trial. In Commonwealth v. Cooney, 444 Pa. 416, 282 A.2d 29 (1971), a bullet removed from the petitioner’s head after his murder trial corroborated his defense that he was injured and the victim was unintentionally killed in a struggle over a gun, and in Commonwealth v. Bulted, 443 Pa. 422, 279 A.2d 158 (1971), the testimony of a witness, the wife’s paramour, corroborated the defendant’s account of the heated marital dispute which lead to his wife’s unintended death after they struggled over the gun with which she attempted to shoot defendant. Similarly, in Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978), misfiled social security records corroborated the defendant’s alibi defense.

Here, the after-discovered evidence which warrants a new trial is inconsistent with the defense theory as presented at trial. At trial, the defense pursued was misidentification: trial counsel challenged the Commonwealth witnesses’ identifications of defendant as the person who shot the victim. The after-discovered witness contradicts that theory. Defendant now admits he was the shooter, and relies on the after-discovered witness to show that his actions which caused the victim’s death were not premeditated. I am concerned that the ruling in this case makes possible hindsight justice; our decision suggests that the courts will permit a convicted defendant to rethink the theory of his unsuccessful defense and request relief based on a different defense theory which will be supported by a witness unavailable at the time of trial.

I point out that defendants will not likely succeed in obtaining collateral relief based upon such new theories inconsistent with their trial defenses. In this case the evidence supporting the grant of relief is most compelling. The PCRA court made two crucial credibility determinations: that the after-discovered witness’ testimony was reliable and that the defendant did not have the opportunity to tell his story' to the court at the original trial because of trial counsel’s ineffectiveness for presenting a misidentification defense rather than investigating and presenting defendant’s known account of the circumstances of the victim’s unintended death.

Under these narrow circumstances, the PCRA mandate that the outcome of the first trial was unreliable was satisfied.

      . Because we find that Bonaccurso is entitled to a new trial on the basis of after-discovered evidence, we need not address the Commonwealth’s first question: whether the post-conviction court erred when it found on collateral appeal Bonaccurso had been deprived of his constitutional right to testify in his own defense when the issue was not raised on direct appeal.

      . Testimony of witnesses who testify at trial and then recant is treated in the law as a separate category of after-discovered evidence, one which is not at issue in this case because the witnesses who offered the after-discovered evidence did not testify at trial. See Commonwealth v. Mosteller, 446 Pa. 83, 88, 284 A.2d 786, 788 (1971); see also Commonwealth v. Coleman, 438 Pa. 373, 264 A.2d 649 (1970). The courts also seldom give credence to the after-discovered evidence of confessions by others, particularly by convicted co-conspirators. See Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265 (1976); Commonwealth v. Tervalon, 463 Pa. 581, 345 A.2d 671 (1975); Commonwealth v. Swanson, 432 Pa. 293, 248 A.2d 12 (1968).

      . Commonwealth’s reliance on Commonwealth v. Frey, 512 Pa. 557, 517 A.2d 1265 (1986), cert. denied, 481 U.S. 1007, 107 S.Ct. 1633, 95 L.Ed.2d 206 (1987) is misplaced. In Frey, the defendant had testified at his trial and then wanted to offer testimony which contradicted that testimony. The court held that contradictory testimony would not be exculpatory. In the case at hand, Bonaccurso did not testify at his trial and, so, was not open to contradiction. It is demonstrable that had the defense known of the evidence offered by Savasano and others that the trial tactics would have changed.

      . Indeed, trial counsel’s zealous impeachment of these witnesses’ testimony supported the Supreme Court's conclusion that defendant was not prejudiced by the Commonwealth’s failure to disclose the names and identities of these witnesses before trial. Commonwealth v. Bonacurso, 500 Pa. 247, 455 A.2d 1175, 1178-79 (1983). The Supreme Court noted, however, that its conclusion on this issue did not "compel a conclusion that defense counsel is not ineffective for failing to take action on the basis of information relating to witnesses of which he is unaware, (citations omitted).” Id., 455 A.2d at 1179 n. 7.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    625 A.2d 1203
    In re ESTATE OF Sarah Henne REES, Deceased. Appeal of Richard W. ROEDER, Alternate Executor and Mehany, Roeder & Smith, Appellants. In re ESTATE OF John N. REES, Deceased. Appeal of Richard W. ROEDER, Executor, and Mehany, Roeder & Smith, Attorney for the Estate, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1993.
    Filed April 28, 1993.

      James M. Greenfield, Franklin, for appellants.
    Mark A. Pacella, Pittsburgh, for participating party.
    Before KELLY, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

Richard W. Roeder, (Roeder) senior partner in the law firm of Mahany, Roeder and Smith, in his capacity as executor and attorney for the estates of Sarah Henne Rees and John Nesbit Rees, appeals from the order directing Roeder to reimburse executor’s and attorneys’ fees in the sum of $269,006 to the John Nesbit Rees and Sarah Henne Rees Charitable Foundation (the Foundation). We vacate as to the amount of unpaid attorneys’ and executor’s fees plus interest and otherwise affirm the Orphans’ Court Order.

John Rees died testate on October 16, 1988, bequeathing his entire estate to the Foundation. On October 24, 1988, Roeder was appointed executor of Mr. Rees’ estate. The First and Final Account for this estate was filed with Orphans’ Court on December 31, 1990. The principal value of the estate was $5,536,615.29, and nisi confirmation of the account by the court was entered on February 4, 1991.

By Order dated February 7, 1991, the court scheduled a hearing for March 13, 1991, to clarify the status of certain securities in the estate and to determine the appropriateness of the executor’s and attorneys’ fees. In its order, the court noted that: (1) Mrs. Rees had predeceased her husband by approximately two months; (2) substantial amounts of blue chip stocks held in trust in connection with Mrs. Rees’ estate had subsequently poured over into Mr. Rees’ estate; and, (3) the aggregate executor’s and attorneys’ fees between the two estates exceeded $600,000. Order, dated February 7, 1992, P. Richard Thomas, S.J., at 1-2.

At the hearing on March 13, 1991, Roeder testified in his capacity as both executor and attorney for Mr. Rees’ estate, offering an overview of his administration. Thereafter, the Commonwealth objected to both the executor’s and attorneys’ fees claimed against the estate, contending that the fees were excessive, unreasonable and unsubstantiated by the record. That hearing was continued, and Roeder retained counsel to represent him at the later scheduled hearing.

Sarah Rees died testate on August 20,1988, and bequeathed the bulk of her estate to her husband. Her estate essentially consisted of stocks and bonds which were held in trust by Pennbank pursuant to an inter vivos trust Mrs. Rees had established. John Rees was named as the executor of his wife’s estate and he hired Roeder and the law firm of Mahany, Roeder and Smith as his counsel. In administering Sarah Rees’ estate, Mr. Rees entered into an agency agreement with Pennbank which redefined Pennbank’s role over the stocks and bonds: Pennbank served as a custodian rather than a trustee of the securities; N.T., 7-22-91, at 39; R.R. at 63a.

On October 16, 1988, just 57 days after Mrs. Rees’ death, her husband died, and Roeder became the alternate executor of Sarah Rees’ estate, as well as the executor of Mr. Rees’ estate. In addition, Roeder continued to act as counsel for both estates. Roeder and his law partner, Barbara Smith, also served as trustees of the Foundation, the beneficiary of Mr. Rees’ estate.

As the administrator of Mrs. Rees’ estate, Roeder renewed the agency agreement with Pennbank on October 20, 1988; only the names of the executors and the relevant dates of effect and execution were changed. Subsequently, during the administration of Mr. Rees’ estate, Roeder negotiated another separate agency agreement with Pennbank on July 18, 1989, which was again essentially identical in all respects to the previous two in Sarah Rees’ estate. The only changes were in the identification of the estate and the compensation clause which limited Pennbank to the lower of its usual schedule of compensation or 5% of the income receipts. N.T., 7-22-91, at 40; R.R. at 65a.

Consequently, none of the original assets of Mrs. Rees’ inter vivos trust, which comprised the bulk of both estates, were ever removed from Pennbank’s custody. Although no account was ever filed in Mrs. Rees’ estate, a comparison of the federal estate tax returns filed in each case, indicates that out of the $5,520,808.15 in assets'reported in John Rees’ estate, $5,049,-205.25 were primarily comprised of stocks and bonds received from his wife’s estate. (United States Estate Tax Return, form 706).

Roeder competently performed all of the routine services required in each estate. As a certified public accountant, he prepared and filed the state and federal income, inheritance and estate tax returns without challenge.

Additionally, both Roeder and Ms. Smith thoroughly researched options available to the estate if a threatened civil suit for damages, arising out of a morals charge, was initiated against Mr. Rees. John Rees was charged with a crime but he died before the criminal matter was concluded. Hence, no formal civil proceedings were ever instituted.

Roeder testified that the administration of John Rees’ estate consumed a considerable, but unspecified, amount of his time for two years. No attorney time sheets or billing records were kept by Roeder’s law firm documenting the separation of executorial and attorney services performed in Mr. Rees’ estate. Ms. Smith testified that she expended 1,200 to 1,300 hours on the estate over a 13 month period or about 20 hours per week. N.T., 8-7-91, at 85-87; R.R. at 214a-216a.

The account in John Rees’ estate indicates that the executor’s and attorneys’ fees were computed on the following schedules: Executor’s commissions — 5% on $100,000; 4% on $900,000; 3% on $4,000,000; and, 2% on $520,808.15. N.T., 8-7-91, at 13 and 7-22-91, at 8; R.R. at 142a; 32a. Attorneys’ fees — $225 on the'first $2,000; 5% on $58,000; and, 3% on $5,460,808.15. N.T., 7-22-91, at 34; R.R. at 58a. These schedules yield the executor’s and attorneys’ fees claimed against Mr. Rees’ estate of $171,416.16 and $166,949.24, respectively, for a total of $338,365,40. Identical fee calculations were applied against the assets when they passed through Mrs. Rees’ estate. The claimed executor’s and attorneys’ fees for Sarah Rees’ estate were $130,621.48 and $162,052.91 respectively. The attorney’s fees were authorized by John Rees, as the executor of his wife’s estate, pursuant to a fee agreement with Roeder. N.T., 7-22-91, at 33-34; R.R. at 57a-58a.

Ronald Imboden, from Marine Bank’s Trust Department, testified regarding the executor’s fees claimed by Roeder. He indicated that Marine Bank’s usual fee schedule was consistent with that charged against John Rees’ estate. N.T., 7-22-91, 7-8; R.R. at 31a-32a. However, Imboden also stated that, if Marine Bank had served as executor of both Mrs. and Mr. Rees’ estates, it would have discounted its usual fee against the principal by as much as 50%, not to fall below an overall 2% commission. N.T., 7-22-91, at 11-12; R.R. at 35a-36a.

James Marsh, Jr., Esquire, testified regarding the attorneys’ fees claimed by Roeder’s law firm in John Rees’ estate. Marsh stated that, in his opinion, the attorneys’ fees charged were reasonable. N.T., 8-7-91, at 88; R.R. at 245a. Attorney Marsh did not testify regarding the reasonableness of the executors’ fee, nor did he consider the reasonableness of the attorney’s fees in light of the shared executor’s fee. N.T., 8-7-91, at 136; R.R. at 265a.

Following a de novo hearing beginning on July 22, 1991, the court, finding that the fees claimed were unreasonable, entered the order of April 21, 1992, directing Roeder to reimburse the Foundation for executor’s and attorneys’ fees. The court failed to enter a decree nisi as required by Pennsylvania Rule of Civil Procedure 1517. Thereafter, without raising post-trial objections, Roeder filed a notice of appeal pursuant to a grant of his Petition to Appeal Nunc Pro Tunc.

In Donegal Mutual Ins. Co. v. State Farm Mutual Auto. Ins. Co., 377 Pa.Super. 171, 546 A.2d 1212 (1988), we held that where the trial court sits without a jury and enters an order which appears to be a final order, we can excuse the failure to file exceptions and entertain the merits of appeals from such an order. Thus, we deem Roeder’s appeal, arising from the Orphans’ Court order of April 21, 1992, is properly before this Court.

Roeder presents four issues for our review, charging that the Orphans’ Court erred by: (1) disallowing the executor’s fees claimed for the estates of Sarah Henne Rees and John N. Rees; (2) disallowing the attorneys’ fees for the estate of John N. Rees; (3) directing Roeder, individually, as the executor of Mr. Rees’ estate, to refund the disallowed attorney’s fees; and, (4) including in its calculation of attorneys’ and executor’s fees certain amounts to be refunded that were never paid to the executor or the attorneys.

Preliminarily, we consider the law that governs our decision when reviewing an Orphans’ Court’s determination to disallow a claim for executor’s and attorneys’ fees. The Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 3537, directs that “[t]he court shall allow such compensation to the personal representative as shall be reasonable and just, and may calculate such compensation on a graduated percentage.” “While as a matter of convenience, the compensation of a fiduciary may be arrived at by way of percentage, the true test is always what the services were actually worth and to award a fair and just compensation therefor.” In re Williamson’s Estate, 368 Pa. 343, 349, 82 A.2d 49, 52 (1951). Likewise, attorney’s fees in an estate are based on the reasonable value of the service actually rendered. Dorsett v. Hughes, 353 Pa.Super. 129, 509 A.2d 369 (1986). Attorneys and executors seeking compensation from an estate have the burden of establishing facts which show the reasonableness of their fees and entitlement to the compensation claimed. In re Estate of Sonovick, 373 Pa.Super. 396, 400, 541 A.2d 374, 376 (1988).

The determination of the reasonableness of a fiduciary’s compensation is left to the sound discretion of the Orphans’ Court. Sonovick, at 399, 541 A.2d at 376. Absent an agreement between the parties, the court is empowered to determine the value of the fiduciary services and award reasonable compensation. Id. The court also has the authority to reduce to a “reasonable and just” level those fees and commissions claimed by the fiduciary and their counsel. Id. Thus, when reviewing the judgment of the Orphans’ Court regarding the allowance or disallowance of attorneys’ and executor’s fees, absent a clear error or an abuse of discretion, we will not interfere with the Orphans’ Court determination. Estate of Getz, 421 Pa,Super. 513, 618 A.2d 456, 462 (1992); Sonovick, 373 Pa.Super. at 399-400, 541 A.2d at 376. Our task is to assure that the record is free from legal error and to determine if the chancellor’s findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence. Getz, at 520, 618 A.2d at 459. With these standards in mind, we turn to Roeder’s first two claims.

In his first two claims, Roeder argues that the Orphans’ Court reduction of executor’s fees in the estates of John N. Rees and Sarah Henne Rees and the attorneys’ fees in Mr. Rees’ estate was founded on unsupported findings of fact and errors of law. Roeder contends that the court ignored competent, credible and unrebutted evidence indicating the executor’s and attorneys’ fees were appropriate, reasonable and just. Brief for appellant at 22. We disagree.

We have carefully reviewed the Orphans’ Court Opinion and Order of April 21, 1992, along with the record in this case. The court found that the executor’s and attorneys’ fees charged in this matter were unreasonable, considering the services rendered were purely routine. The court also found that the evidence presented did not support the executor’s and attorneys’ fees claimed in this case. We are satisfied that the distinguished Senior Judge, P. Richard Thomas, has adequately and competently addressed and disposed of the first two issues brought forth in this appeal. We find Judge Thomas’ statements of the relevant law are correct and his application of the law is fully supported by the facts established in the record. We affirm on the basis of the Orphans’ Court Opinion. Opinion and Order, P. Richard Thomas, S.J., dated April 21, 1992, at 1-48.

Third, Roeder contends that the Orphans’ Court erred when it directed its order for the repayment of attorneys’ fees solely against him, as executor of Mr. Rees’ estate. Roeder asserts that, if a refund is proper, Barbara Smith, his former partner, is also obligated to reimburse the Foundation. Brief for Appellant at 75. We cannot agree.

Roeder has not directed us to, nor does our research reveal, authority which informs us that an executor and fiduciary is not ultimately responsible for improper payments by an estate. It was through Roeder’s authority, as executor, that the estate’s assets were committed to pay attorneys’ fees. Thus, Roeder may properly seek contributions from Ms. Smith but his responsibility for losses suffered by Mr. Rees’ estate are not relieved because Ms. Smith’s performed legal services for the estate. Accordingly, we find that the Orphans’ Court Order directing Roeder alone to reimburse the Foundation is entirely proper.

The last issue raised by Roeder concerns an oversight in the court’s calculations of the specific amounts that Roeder is required to reimburse the Foundation. Specifically, Roeder asserts that the court included in its order of reimbursement $36,416.16 in executor’s fees and $26,949.24 in attorneys’ fees, plus interest on those amounts, that represented balances due by the estate but which Roeder never actually paid out. Brief for Appellant at 75-76; Opinion and Order, P. Richard Thomas, S.J., dated April 21,1992, at 49-50. We agree with Roeder on this point.

First, our review of the record supports Roeder’s contention that the amounts stated above were never disbursed by Roeder as executor of Mr. Rees’ estate. First and Final Account of Richard W. Roeder, Executor, filed December 31,1990, at 5 c. Second, we note that the Commonwealth has no objection to omitting these figures from the amount of executor’s and attorneys’ fees for which Roeder is required to reimburse the Foundation. Brief for Appellee at 13.

Judge Thomas, in his disposition, set forth the following formula for determining the fees to be refunded in this case:

Having established appropriate fees in these two estates, we believe that interest should be added to the excess fees received. This presents problems. The final accounts in both estates show periodic partial payments in various amounts made towards executor and attorney fees spread over many months. We then have the problem of whether to consider [if] the “overpayments” were the first amounts received or the last amounts received. If we are to award interest, we must determine an appropriate rate of interest to be applied to overpayments. The high interest rates on savings accounts, certificates of deposit, money market funds, and mutual funds existing in the late 1980’s have substantially declined in the early 1990’s. We solve the problem as follows:
We will consider the “overpayments” were the last payments made.
We will compute interest on each overpayment from the date made to April 1, 1992.
We will apply interest at a conservative four and one-half percent rate.

Opinion and Order, P. Richard Thomas, S.J., dated April 21, 1992, at 47. We find no abuse of discretion in Judge Thomas’ approach and adopt it in this appeal.

Accordingly, we vacate the Orphans’ Court Order as to the amount of $36,416.16 plus $413.08 in interest for undisbursed executor’s fees and $26,949.24 plus $305.44 in interest for undisbursed attorneys’ fees. We affirm the Orphans’ Court Order directing reimbursement of executor’s and attorneys’ fees pursuant to the formula devised by the court in its opinion as set forth above.

Order vacated in part and affirmed in part. Case remanded for entry of a final order consistent with this opinion.


author: HOFFMAN, Judge:

text:
    625 A.2d 1208
    John RITTENHOUSE and Sally Rittenhouse, T/A Larchwood Partners, v. BARCLAY WHITE INC., Appellant.
    Superior Court of Pennsylvania.
    Argued March 10, 1993.
    Filed May 24, 1993.

      W. Mark Mullineaux, Wayne, for appellant.
    Douglas I. Zeiders, Lansdale, for appellees.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the September 29, 1992 order denying appellant’s, Barclay White, Inc. (hereinafter “BWI”), petition to strike or open a confessed judgment. BWI presents the following questions for our review:

1. Did Larchwood breach its lease with Barclay White, Inc., (“BWI”) when it failed to provide a legal tenancy to BWI and therefore not have any authority to confess judgment against BWI for its termination of the lease?
2. Did BWI assert a meritorious defense in its petition to open the confessed judgment?

Appellant’s Brief at 3. For the foregoing reasons, we affirm.

The relevant facts underlying this appeal are as follows. In April of 1991, appellee John Rittenhouse and Sally Rittenhouse Va Larchwood Partners (hereinafter “Larchwood”) entered into a lease agreement with BWI. Under the lease, BWI was given a leasehold interest in two-thousand-four-hundred square feet of a building located at 601 Washington Street, Conshohocken, Pennsylvania and one acre of adjoining land. The lease was to commence on May 1, 1991 and run through April 30, 1994. Thereafter, in May of 1991, BWI. took possession of its leasehold interest. BWI was one of three tenants at the Washington Street property.

In July of 1991, the building inspector for Whitemarsh Township inspected the Washington Street property. Subsequently, on August 29, 1991, Larchwood applied for building alteration and use and multiple-occupancy permits. By letter dated September 25, 1991, the building inspector notified Larchwood that its application had been denied and that a stop work order had been issued. Larchwood was also told that before any application for permits would be approved, Larchwood would have to submit a land development plan. As of November 12, 1991, the permits had not yet been obtained and, consequently, BWI terminated the lease.

On January 22, 1992, Larchwood informed BWI that as a result of its breach, all rent payments under the lease would be accelerated and a judgment by confession would be entered if an amicable resolution of the matter was not reached within ten days. As no resolution was reached, all rents were accelerated and a judgment by confession was taken against BWI on February 26, 1992, in the amount of forty-seven-thousand-two-hundred-fifty-dollars. BWI filed a petition to strike or open judgment on March 16, 1992 which was denied on September 29, 1992. This timely appeal followed.

BWI first contends that as it was never given legal possession of the premises by Larchwood, the judgment should be stricken. This argument is spurious. It is well settled that “[a] confessed judgment is properly stricken only when there is a defect in the judgment apparent on the face of the record.” Davis v. Woxall Hotel, Inc., 395 Pa.Super. 465, 468, 577 A.2d 636, 638 (1990) (citations omitted). In the instant action, BWI fails to point to any defects in either Larchwood’s complaint requesting confession of judgment or in the confession of judgment itself. Accordingly, we will not disturb the trial court’s order denying BWI’s motion to strike.

BWI next contends that as it has asserted a meritorious defense to Larchwood’s confession of judgment, the judgment should be opened. We disagree. Preliminarily, we point out that “[s]ince the decision whether to open a confessed judgment involves an exercise of the equitable power of a court of common pleas, our scope of appellate review of such a decision is limited.” Continental Bank v. Axler, 353 Pa.Super. 409, 414, 510 A.2d 726, 728 (1986), appeal dismissed, 518 Pa. 58, 540 A.2d 267 (1988) (citing Lalumera v. Nazareth Hospital, 310 Pa.Super. 401, 456 A.2d 996 (1983)). Hence, the decision of the trial court will not be overturned absent an error of law or a manifest abuse of discretion. Id. (citing Lazzaroti v. Juliano, 322 Pa.Super. 129, 469 A.2d 216 (1983); Lalumera, 310 Pa.Super. 401, 456 A.2d 996). Furthermore, in reviewing a petition to open judgment, “the court should view the proffered evidence in the light most favorable to the petitioner.... ” Id.

A judgment taken by confession will be opened only if the petitioner acts promptly, alleges a meritorious defense and presents sufficient evidence of that defense to require submission of the issues to the jury. Id. (quoting Lazzaroti, 322 Pa.Super. at 133, 469 A.2d at 218). As mentioned above, in making its determination, the trial court should examine the evidence in a light most favorable to the petitioner. Id.

Clearly, BWI’s petition to strike or open judgment was promptly filed. Accordingly, we will now consider whether BWI’s defense has merit. BWI contends that as Larchwood failed to provide appellant with a legal occupancy, Larchwood had no authority to confess judgment against BWI for its termination of the lease. This argument, however, is without merit.

First, BWI contends that as its occupancy was in violation of the Whitemarsh Building Code, BWI was deprived of its right to possession of the leasehold. We disagree. In the absence of “a lease provision or agreement to the contrary, there are two basic incidents of a tenancy: the right to possession of the leasehold by the tenant and the corresponding right to receive rent payments by the landlord.” 2401 Pa. Ave. Corp. v. Fed. of Jewish Agencies, 319 Pa.Super. 228, 239, 466 A.2d 132, 137 (1983) (citation omitted), aff'd, 507 Pa. 166, 489 A.2d 733 (1985). We first point out that BWI took possession of the leasehold at the start of its lease. Although BWI’s occupancy of the premises was in violation of the local building code, no enforcement action was ever brought against BWI nor was BWI ever fined for its occupancy. Hence, we do not find that Larchwood’s failure to obtain a multiple occupancy permit constitutes a failure to deliver possession.

Next, BWI asserts that Larchwood’s failure to obtain a permit for multiple occupancy constitutes a breach of Larchwood’s covenant of quiet enjoyment. This Commonwealth has long held that a covenant for quiet enjoyment is breached only when the tenant’s actual possession is impaired. See 2401 Pennsylvania Ave. Corp., 319 Pa.Super. 228, 466 A.2d 132. Even where another individual holds a possessory interest superior to that of the tenant, actual or constructive eviction is required before such a breach will be found. See Derrickheim v. Brown, 305 Pa.Super. 173, 451 A.2d 477 (1982) (a breach of the covenant for quiet enjoyment does not occur until lessee is evicted from the premises). In the case at bar, appellant was neither evicted nor was his possession impaired. Moreover, the record shows that at the time of BWI’s termination of the lease agreement, the township had agreed not to pursue the building code violations in anticipation of Larch-wood’s submission of a land development plan. Hence, Larch-wood’s covenant of quiet enjoyment was not breached.

Finally, BWI contends that the lease agreement is unenforceable as a contract for an illegal purpose. In adjudicating disputes between landlord and tenant, this Commonwealth applies principles of contract law. See 2401 Pennsylvania Ave. Corp., 319 Pa.Super. 228, 466 A.2d 132; Pawco, Inc. v. Bergman Knitting Mills, Inc., 283 Pa.Super. 443, 424 A.2d 891 (1980). It is well settled that a contract which violates a statute is illegal and will not be enforced. Fitzpatrick v. Shay, 314 Pa.Super. 450, 458, 461 A.2d 243, 247 (1983) (citing Dippel v. Brunozzi, 365 Pa. 264, 74 A.2d 112 (1950); Pennsylvania R. Co. v. Cameron, 280 Pa. 458, 124 A. 638 (1924); Gramby, et al. v. Cobb, 282 Pa.Super. 183, 422 A.2d 889 (1980)).

Here, as Larchwood had not obtained a permit for multiple occupancy of the property, BWI’s occupancy of the residence was in violation of the Whitemarsh Township building code. Nonetheless, the lease is not void for illegality. An agreement will be considered void for illegality only where it “cannot be performed without violating a statute.” Id. (emphasis added) (citing Dippel v. Brunozzi, 365 Pa. 264, 74 A.2d 112 (1950); Pennsylvania R. Co. v. Cameron, 280 Pa. 458, 124 A. 638 (1924); Gramby, et al. v. Cobb, 282 Pa.Super. 183, 422 A.2d 889 (1980)). In the instant action, the lease was not, by its terms, per sé illegal. BWI makes no assertion that had a proper application been filed with the building inspector, a permit would not have been forthcoming. Moreover, the record indicates that Larchwood was in the process of reapplying for the multiple occupancy permit at the time of BWI’s termination of the lease. Hence, Larchwood’s lease was valid and enforceable. Accordingly, we affirm the trial court’s order denying BWI’s petition to strike or open judgment.

Order affirmed.

      . Specifically, BWI points to Larchwood’s failure to obtain a multiple occupancy permit for the Washington Street property.

      . Our holding today is in accord with a recent New York Case, Ying Lung Corp. v. Medrano, 123 Misc.2d 1074, 475 N.Y.S.2d 772 (1984), where the court held that “leasing premises for which a certificate of occupancy has not been issued does not void a lease....” Id. at 1075, 475 N.Y.S.2d at 773. See also Elkar Realty Corp. v. Mitsuye T. Ramada, 6 A.D.2d 155, 157, 175 N.Y.S.2d 669, 671 (1958), appeal dismissed, 5 N.Y.2d 844, 181 N.Y.S.2d 786, 155 N.E.2d 669 (1958).


author: DEL SOLE, Judge:

text:
    625 A.2d 1212
    Nancy B. HANSON, Appellee, v. John Henry HANSON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted March 22, 1993.
    Filed May 25, 1993.

      Robert E. Benion, Milton, for appellant.

      William C. Cole, Kulpmont, for appellee.
    Before OLSZEWSKI, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

This is an appeal from an order directing Appellant father, John Hanson, to pay $45 per week in child support payments for his adult daughter, Mary Hanson.

He raises the following issues on appeal:

(1) Whether the divorce settlement agreement between the parties executed July 8, 1987 which contained a provision for medical insurance, but no further obligation for support of an adult child, can be modified to include support for the adult child?
(2) Whether the trial court erred in concluding that Appellant has a legal duty to support his adult daughter, that the adult child is financially in need of support, and that the Appellant has the financial ability to support her without undue hardship?
(3) Whether the complaint for support was barred by laches and the statute of limitations; and whether the trial court erred by refusing to admit an Order of the Court of Common Pleas of Union County dismissing a prior support proceeding between the parties?
(4) Whether Mary Hanson was guilty of estrangement from Appellant father, so as to bar her from receiving support?
(5) Whether the trial court erred in allowing the Appellee to introduce certain medical records?

John and Nancy Hanson were divorced by decree of the Court of Common Pleas of Northumberland County in 1987. The decree incorporated but did not merge with a divorce settlement agreement executed that same year. In this agreement the parties acknowledged that their youngest daughter, Mary, “had certain handicaps which impair her employment capabilities.” The parties agreed that they both would keep Mary on the medical and dental insurance provided by their employers. The agreement contained no provision for weekly or monthly support payments for Mary’s care.

Since the divorce, Mary lives with her mother, who is employed full time at American Home Foods. Mary has worked at several part-time jobs which pay at or near the minimum wage. In 1990, Mary earned $2,850 doing laundry work at Rockwell Center. John Hanson worked at Pennsylvania Gas and Water Company and accepted an offer of early retirement in May, 1991. As a result, he receives $1,233 in pension benefits per month.

Mother filed this complaint for child support. Based on a recommendation by a hearing officer, an order was entered directing Appellant to pay $50 per week for the support of his daughter. Appellant requested de novo review following which Judge Jay W. Myers directed Appellant to pay $45 per week in support payments for Mary, in addition to maintaining her health insurance coverage.

First, Appellant argues that the divorce settlement agreement which was incorporated but not merged with the divorce decree cannot be modified to now include support for Mary. He relies upon our decision Brangs v. Brangs, 407 Pa.Super 43, 595 A.2d 115 (1991) which held that 23 Pa.C.S.A. § 3105(b) of The Divorce Code cannot be applied retroactively to permit modification of child support agreements entered into before its effective date of February 12, 1988.

However, our Supreme Court in Knorr v. Knorr, 527 Pa. 83, 588 A.2d 503 (1991) held that even when a settlement agreement is incorporated and not merged with the divorce decree, courts are not conclusively bound by its terms when considering matters involving the interests of children. In Knorr, the court held that where parents invoke the jurisdiction of the Family Court to seek determinations of child support, that court would not be bound by the terms of support set forth in a marriage settlement agreement. While Appellant acknowledges this holding, he argues that it does not apply where the child involved is an adult. This argument is premised on his belief that he has no legal duty to support his adult child; that the court erred in finding the child is financially in need of support; and that child support payments would work an undue hardship on him. These arguments are unconvincing. See also, Miller v. Miller, 423 Pa.Super. 162, 620 A.2d 1161 (1993).

Usually, the duty to support a child ceases when the child reaches 18 or when the child graduates from high school, whichever comes later. Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992). However, the courts in this state have long recognized an exception to this rule, and an exception is supported by statute 23 Pa.C.S.A. § 4321(3). There is a duty on parents to support a child that has a physical or mental condition, which exists at the time the child reaches its majority, that prevents the child from being self supporting. Such a child is not emancipated, Com. ex rel. Cann v. Cann, 274 Pa.Super. 274, 418 A.2d 403 (1980). In Cann, this court stated:

Ordinarily a parent is not required to support his adult child but there is a well recognized exception supported by abundant authority that where such child is too feeble physically or mentally to support itself the duty on the parent continues after the child has attained its majority----the presumption undoubtedly is that when the child comes of age, the reciprocal duties between father and child are at an end, but such presumption is overcome where conditions show that either party is incapable of self-support. Commonwealth ex rel. O’Malley v. O’Malley, 105 Pa.Super. 232, 234, 161 A. 883, 884 (1932), cited in Colantoni v. Colantoni, 220 Pa.Super. 46, 281 A.2d 662 (1971).

To determine if an order of support is appropriate, the test is whether the child is physically and mentally able to engage in profitable employment and whether employment is available to that child at a supporting wage. See Com. ex rel. Groff v. Groff, 173 Pa.Super. 535, 98 A.2d 449 (1953); and Com. v. Gilmore, 97 Pa.Super. 303 (1929). In Cann, the adult child, who suffered a learning disability, was unable to earn a supporting wage because of her mental capacity, even though she worked 40 hours per week at a cleaning job and babysitting. This was sufficient to require her father to continue paying support, when it was determined that her living expenses exceeded her income. Thus, an adult child who is mentally or physically handicapped is still entitled to support if he or she is employable but is incapable of self-support.

Our Supreme Court cited Groff with approval in In re McCready’s Trust, 387 Pa. 107, 126 A.2d 429 (1956); and Cann in Sutliff v. Sutliff, 515 Pa. 393, 528 A.2d 1318 (1987). Accordingly, we hold that a parent has a continuing duty to support a child who, although when reaching the age of majority, is unemancipated because of a physical or mental condition and is unable to be self supporting because of that condition.

In the instant case, the trial court found that Mary was unemancipated as she was incapable of self-support due to her mental and physical condition. The court further found Appellant capable of paying the guideline recommendation of $45 per week without hardship. Our scope of review is limited to a determination of whether the lower court committed an abuse of discretion or committed an error of law. Caplan v. Caplan, 400 Pa.Super. 352, 583 A.2d 823 (1990).

The fact finder has the benefit of viewing the witnesses and hearing the evidence first hand. The trial judge found that Mary was incapable of supporting herself and was dependent on her parents because of her mental and physical limitations. The trial judge also credited the testimony of Nancy Hanson that Mary had a low IQ and would have great difficulty living on her own. Further, the trial judge found that Appellant would be able to pay $45 per week to support his daughter without undue financial hardship. Sufficient evidence supports the trial court’s finding that Mary is unemancipated and in need of support and that Appellant is able to support her.

Appellant also claims that the court’s failure to make a finding that Mary was guilty of estrangement was in error and that the evidence of this estrangement should bar her from receiving support. Appellant, however, fails to note that the cases upon which he relies, Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854 (1989) and Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989) concern the effect of estrangement on, what had been held to be, a parent’s duty to contribute to an emancipated adult child’s secondary education. While our supreme court’s decision in Blue v. Blue, supra, extinguished this duty, the doctrine of estrangement was never expanded to affect the obligation to support an unemancipated adult child. Therefore, the obligation of support is not diminished even if the child refuses to maintain a relationship with the parent. See DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987); and Schmidt v. Schmidt, 313 Pa.Super. 83, 459 A.2d 421 (1983).

The remaining issues presented by Appellant are similarly without merit and are correctly disposed of by the trial court in its Opinion. Therefore, we affirm the order of the court below.


author: WIEAND, Judge:

text:
    625 A.2d 1215
    COMMONWEALTH of Pennsylvania v. Michael J. CAMPBELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 6, 1993.
    Filed June 3, 1993.

      Jerry A. Philpott, Duncannon, for appellant.
    Daniel W. Stern, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before WIEAND, OLSZEWSKI and HESTER, JJ.
   WIEAND, Judge:

After being tried without jury, Michael Campbell was found guilty of making a terroristic threat in violation of 18 Pa.C.S. § 2706. He was subsequently sentenced to serve a term of imprisonment for not less than eleven and one-half (ll/é) months nor more than three (8) years. On direct appeal from the judgment of sentence, Campbell argues that the charges against him should be dismissed because: (1) the evidence was insufficient to sustain a finding of guilt; and (2) a delay of more than five (5) months in returning a verdict, while appellant remained incarcerated, violated Pa.R.Crim.P. 1122, caused unnecessary prejudice, and now requires an arrest of judgment.

Campbell was charged with making a terroristic threat after an incident on May 21, 1991, at the Best Mart convenience store in Newport, Perry County. Appellant waived his right to counsel and conducted his own defense, with the assistance of court appointed stand-by counsel. At the conclusion of the non-jury trial on October 17, 1991, the court deferred its decision pending the preparation of a transcript of the proceedings. A transcript was prepared and filed on November 8, 1991. When a verdict was not forthcoming thereafter, appellant filed, on February 26, 1992, a petition for a writ of habeas corpus. On March 17, 1992, the trial court issued an order stating that it would not immediately adjudicate Campbell’s guilt and suggesting that “either the District Attorney, the Chief Probation Officer, or defendant himself consider proceedings under the Mental Health Procedures Act and the Court will in due course adjudicate on the issue of guilt or innocence with or without a report of the aforesaid proceedings.” Appellant then filed a pro se pleading captioned “Motion For Entry Of Not Guilty Verdict.” In response, the trial court entered an order, on March 24, 1992, adjudicating appellant guilty of the terroristic threat charge. After verdict, appellant submitted to the trial court a pro se “Motion To Appeal Guilty Verdict,” which was made a part of the record on April 8, 1992. Counsel was appointed and given a period of ten (10) days to supplement appellant’s pro se post-trial motions. However, no supplemental post-trial motions were filed and, on July 31, 1992, the trial court issued an order denying post-trial relief. A pre-sentence report was prepared, and appellant was sentenced on August 13, 1992. This appeal followed.

We reject the Commonwealth’s contention that the issues raised on appeal have been waived by the failure to file timely post-trial motions. “It is well settled that only issues raised in post-trial motions are preserved for appellate review.” Commonwealth v. Copeland, 381 Pa.Super. 382, 385, 554 A.2d 54, 55 (1988). See: Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979). However, review of the record in this case discloses that appellant did, in fact, file pro se a post-trial motion captioned “Motion To Appeal Guilty Verdict.” Although this motion was not filed within the time period set by Pa.R.Crim.P. 1123(a), the trial court considered the merits of the issues raised by appellant when it dismissed appellant’s motion. Under similar circumstances, the Superior Court has held that “issues in untimely filed post-verdict motions that were not treated as waived by the trial court will not be considered waived for purposes of appeal.” Commonwealth v. Pirela, 398 Pa.Super. 76, 81, 580 A.2d 848, 851 (1990). See: Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989) (plurality opinion). See also: Commonwealth v. Ramin, 390 Pa.Super. 591, 593, 568 A.2d 1329, 1331 (1990); Commonwealth v. Markovitch, 388 Pa.Super. 244, 247-248, 565 A.2d 468, 470 (1989). Because the issues of the sufficiency of the evidence and the alleged violation of Pa.R.Crim.P. 1122 were not deemed waived by the trial court and were, in fact, considered by the trial court in denying post-trial relief, this Court can provide appellate review.

In evaluating a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth, which has won the verdict. We then determine whether the evidence was sufficient to permit the finder of fact to determine that each and every element of the crime charged was established beyond a reasonable doubt. See: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). It is the function of the fact-finder to pass upon the credibility of the witnesses and to determine the weight to be accorded the evidence produced. The fact-finder is free to believe all, part or none of the evidence introduced at trial. See: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). The facts and circumstances established at trial “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the [trier of fact] unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

The evidence was that on the evening of May 20, 1991, appellant was standing in the cashier’s line at the convenience store, waiting to pay for gasoline. In front of him were two young women who were purchasing cigarettes. When the cashier, who was Tracy Kratzer, asked if they were old enough to buy cigarettes, they laughed and said they were twenty-one years of age. Embarrassed for having asked the question, Kratzer raised her hand to her head and pointed to it with her index finger, intending to signify the foolishness of her mistake. Although appellant appeared to be amused by the transaction, appellant privately determined that Kratzer’s gesture had been directed toward him and was intended to suggest that he was crazy and should shoot himself. He said nothing about it when he paid for his gasoline and left the store.

On the following day, May 21, 1991, at or about 1:45 p.m., appellant returned to the Best Mart store and approached Pamela Book, the cashier who was then on duty and told her that the cashier who had worked the previous day had gestured to him in a manner which he did not appreciate. He demonstrated the gesture and directed Book to give a message to the cashier with the bleached blonde hair that “when I decide to -do this, it will be on her shift and there will be lots go down.” Book felt threatened by appellant’s conduct, having interpreted the gesture he made to represent a gun and, thus, fearing that appellant would return when Kratzer was working and would cause bodily harm to other persons in the store. She described appellant’s manner as direct and matter of fact, as though he knew exactly what he wanted to say. She said further that appellant’s demeanor suggested that he meant to carry out his threat. After appellant had left the store, Book was able to observe the license number of appellant’s vehicle. She contacted the state police, and a trooper was dispatched to the Best Mart store to investigate the incident. When interviewed by the trooper, according to the evidence, Pamela Book was still visibly shaken. When Tracy Kratzer was later summoned to the store and told of appellant’s remarks, she too appeared to be frightened.

Appellant was charged with making a terroristic threat in an information which averred that he “did threaten to commit a crime of violence with the intent to terrorize another in reckless disregard of the risk of causing such terror ... in that [appellant] did have a message of terror delivered to Tracy Kratzer indicating [that] she and other people would be harmed by [appellant].... ” Appellant denied guilt. He contended that his remarks had been intentionally ambiguous so that they could not be construed as a threat to commit a crime. He testified on his own behalf at trial and said that Kratzer’s gesture had made him very angry. After he left the store, he decided that he couldn’t let the cashier get away with such conduct and had to get even. He decided that he would go back to the store “to say something, some kind of doubletalk that could be taken two ways, just to screw with [Kratzer’s] mind because she screwed with my mind.” According to appellant, he waited until the following day to “give me 24 hours to cool off and think of something clever and indirect that could not possibly be pinned to one person, because I didn’t say what I was going to do, I didn’t say anything about a gun, nothing like that.”

The crime of making a terroristic threat is defined by statute as follows:

§ 2706. Terroristic threats
A person is guilty of a misdemeanor of the first degree if he threatens to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.

18 Pa.C.S. § 2706. “The purpose of [Section 2706] is to impose criminal liability on persons who make threats which seriously impair personal security or public convenience. It is not intended by this section to penalize mere spur-of-the-moment threats which result from anger.” 18 Pa.C.S. § 2706, Official Comment — 1972. See: Commonwealth v. Anneski, 362 Pa.Super. 580, 585, 525 A.2d 373, 376 (1987); Commonwealth v. Kidd, 296 Pa.Super. 393, 397, 442 A.2d 826, 827 (1982). “ ‘The offense does not require that the accused intend to carry out the threat; it does require an intent to terrorize. The harm sought to be prevented is the psychological distress which follows from an invasion of another’s sense of personal security.’ ” Commonwealth v. Speller, 311 Pa.Super. 569, 573, 458 A.2d 198, 200 (1983), quoting Commonwealth v. Hardwick, 299 Pa.Super. 362, 365-366, 445 A.2d 796, 797 (1982). Therefore, “[i]t is the making of the threat with intent to terrorize that constitutes the crime.” Commonwealth v. Anneski, supra at 587, 525 A.2d at 376. See also: Commonwealth v. White, 232 Pa.Super. 176, 183-184, 335 A.2d 436, 439 (1975).

To obtain a conviction for making a terroristic threat, the Commonwealth must prove that: (1) the defendant made a threat to commit a crime of violence; and (2) such threat was communicated with the intent of terrorizing or with reckless disregard for the risk of causing terror. See: Commonwealth v. Lumpkins, 324 Pa.Super. 8, 12, 471 A.2d 96, 98 (1984); Commonwealth v. Ferrer, 283 Pa.Super. 21, 23, 423 A.2d 423, 424 (1980). It has been observed that “ ‘even a single verbal threat might be made in such terms or circumstances as to support the inference that the actor intended to terrorize or coerce.’ ” Commonwealth v. Ashford, 268 Pa.Super. 225, 229, 407 A.2d 1328, 1329 (1979), quoting Model Penal Code, § 211.3, Tent.Draft No. 11 at p. 9 (1960). See also: Commonwealth v. Chance, 312 Pa.Super. 435, 443, 458 A.2d 1371, 1375 (1983). Moreover, “it is unnecessary for [the defendant], to specifically articulate the crime of violence which he or she intends to commit where the type of crime may be inferred from the nature of the statement and the context and circumstances surrounding the utterance of the statement.” Commonwealth v. Hudgens, 400 Pa.Super. 79, 90, 582 A.2d 1352, 1358 (1990).

Instantly, appellant’s remarks, although somewhat ambiguous, were combined with a hand gesture symbolic of a gun pointed at his head. His remarks were made in response to a perceived insult which appellant mistakenly believed that Tracy Kratzer had directed to him on the previous day. Viewed in this context, appellant’s message to Kratzer that “when I do this, it will be on her shift and there will be lots go down,” could reasonably be interpreted as a threat by appellant that he would commit suicide and harm Kratzer, as well as other persons in the store as he carried out what he mistakenly believed Kratzer to have suggested. Given appellant’s complete misinterpretation of Kratzer’s actions on the previous day, it is unlikely that Kratzer would have understood the full meaning of the message which appellant gave to Pamela Book. Nevertheless, the evidence was that both she and Book were frightened. The terroristic threats section of the Crimes Code is directed at conduct intended to terrorize another person or which recklessly disregards the risk of terrorizing another person. Thus, it was appellant’s intent which was controlling and not whether his threats were fully understood by their intended victim.

Appellant’s desire to terrorize Kratzer is demonstrated by his own testimony at trial. He said that he had been very angry as a result of Kratzer’s making a hand gesture, which he believed to be a suggestion that he kill himself. Consequently, he wanted to get even with Kratzer by saying something which would “screw with her mind.” From this testimony appellant’s intent to cause fear and alarm in Kratzer seems patently clear. Given the context in which the incident occurred, his comments and actions could reasonably be interpreted as a threat to physically harm Kratzer. This is the manner in which appellant’s conduct was interpreted by Pamela Book, whom he had told to give the message to Kratzer. Under all of these circumstances, therefore, we are satisfied that there was sufficient evidence to support the trial court’s finding that appellant was guilty of making a terroristic threat.

We reject also appellant’s contention that his remarks were a mere spur of the moment expression of anger and, therefore, not subject to being penalized under the terroristic threats statute. By his own testimony, appellant revealed otherwise. Appellant said that he had waited until the following day to respond to the perceived insult by Kratzer so that he would have sufficient time to cool off and think of something clever to say. This testimony discloses premeditated, intentional conduct on appellant’s part, rather than a contemporaneous expression of anger. Such conduct is within the statutory proscription against the making of terroristic threats. See: 18 Pa.C.S. § 2706.

Pa.R.Crim.P. 1122 provides as follows:

Rule 1122. Time for Court Action Following Trial
All motions for a new trial, motions for judgment of acquittal after the jury has been discharged without agreeing upon a verdict, and motions in arrest of judgment shall be decided within thirty days after argument except under unusual circumstances.
A verdict shall be rendered in all non-jury cases within seven (7) days after trial.

Appellant contends that the trial court’s failure to render a verdict within seven days of his non-jury trial, as was required by Rule 1122, requires that he be discharged. The Commonwealth concedes that a technical violation of Rule 1122 occurred but suggests that the delay was necessitated by the trial court’s request for a transcript and by the court’s sua sponte investigation into proceedings under the Mental Health Procedures Act as an alternative to an adjudication of guilt. Finally, the Commonwealth asserts that because appellant was given credit for the time he served prior to the rendering of the verdict, he was not prejudiced by the delay.

Our research has disclosed no appellate court decisions which have determined when, and under what circumstances, a trial court’s failure to issue a verdict within seven days after a non-jury trial will require a discharge of a defendant. However, in Commonwealth v. Glover, 500 Pa. 524, 458 A.2d 935 (1983), the Supreme Court addressed an alleged violation of Rule 1122 where a trial court had failed to rule on post-trial motions within thirty days after oral argument, as required by the rule. The Court reasoned as follows:

Finally, appellant contends that the delay between the time that oral argument was held on his post-verdict motions and the time that his post-verdict motions were denied violated Pa.R.Crim.P. 1122, and thus he should be discharged.
Pa.R.Crim.P. 1122 states in pertinent part: “All motions for a new trial and motions in arrest of judgment shall be decided within thirty days after argument except under unusual circumstances.” The record in the present case indicates that the only oral argument of appellant’s post-verdict motions occurred on March 25, 1981, and that the trial court denied these motions 35 days later, on April 29, 1981. Since appellant is unable to demonstrate any substantial prejudice from this delay, and the trial court’s denial of post-verdict motions took only 5 days longer than required by Pa.R.Crim.P. 1122, appellant’s contention is without merit.

Id. at 530, 458 A.2d at 938.

Applying the same reasoning to the rule’s direction regarding the time for a verdict after completion of a non-jury trial, we hold that a technical violation of the rule will not, standing alone, require that a defendant be discharged. Before a trial court delay will entitle a defendant to a discharge, it must appear that the defendant has been prejudiced by the delay. As the delay increases, however, the need to show a specific prejudice will decrease accordingly.

In requiring a trial court to render a verdict within seven days of trial, the primary purpose of Rule 1122 was to ensure a prompt verdict in all non-jury trials. In the instant case, that purpose was not served. Although the trial court initially deferred a ruling pending preparation of a transcript of the trial proceedings, the record discloses that the transcript was prepared and filed as a part of the record on November 8,1991. Nonetheless, the trial court did not return a verdict until March 24, 1992. The trial in the instant case had been short and the testimony straightforward. The record reveals no legitimate excuse for the trial court’s lengthy delay in returning a verdict. As for the Commonwealth’s contention that the trial court delayed issuing a verdict to investigate possible mental health proceedings as an alternative to a guilty verdict, this concern was expressed by the court for the first time on March 17, 1992, one week before it finally entered its verdict. Meanwhile, appellant remained incarcerated. On the record before this Court, there is no justification for the trial court’s failure to return a verdict promptly.

After careful review and consideration, we hold that appellant was substantially prejudiced by the trial court’s delay in rendering a verdict. Appellant remained incarcerated for more than five months before the trial court finally adjudicated him guilty of making a terroristic threat. During this time, appellant, even though not convicted of any crime, was powerless to move the case along. He could not file post-trial motions or even request a date for sentencing, for he had not been found guilty. He was, in fact, in limbo, a prisoner subject to the whim of the trial judge, who, unless the rule were enforced, could hold him indefinitely by delaying a verdict. The fact that appellant was ultimately given credit for time served prior to the verdict, does not, in our view, alleviate the prejudice inherent in the court’s lengthy delay in returning a verdict. By the time he was sentenced, he had already served almost the entire minimum sentence which the court imposed. To permit such a long delay between trial and verdict in a non-jury case, without any valid excuse therefor, would be to permit trial courts to require defendants to serve their sentences, with no means of obtaining appellate review, by simply refusing to return a verdict.' The delay, moreover, subjected the defendant to an anxiety which the rule was intended to eliminate or, at least, reduce. The delay was particularly egregious here, where there was a substantial issue of whether appellant’s conduct had constituted a violation of the statute.

We do not hold that any and all violations of Pa.R.Crim.P. 1122 will require that a defendant be discharged. It is highly unlikely that a delay of only a few days between trial and verdict would result in substantial prejudice to a defendant. Even a delay of several months may not be prejudicial where a defendant is free on bail while the trial court considers its verdict. There may also be situations in which a delay in the rendering of a verdict will be justified by unusual circumstances. This, however, is not such a case. In this case, there was no legitimate reason for a delay of more than five months before a verdict was entered. Because Pa.R.Crim.P. 1122 was violated and because appellant was prejudiced thereby,- we hold that judgment must be arrested and appellant discharged.

The judgment of sentence is reversed, and appellant is discharged.

      . Pa.R.Crim.P. 1123(a) provides as follows:
      (a) Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pre-trial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. Argument, a hearing, or both shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions that are stated specifically and with particularity may be argued or heard. If the grounds asserted do not require a transcript, neither the filing, argument, nor hearing of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony.

      . These issues were also raised by appellant, prior to the trial court’s rendering of a verdict, in his petition for writ of habeas corpus and his "Motion For Entry Of Not Guilty Verdict."

      . In Commonwealth v. Young, 385 Pa.Super. 136, 560 A.2d 204 (1989), the Superior Court determined that the Sixth Amendment right to a speedy trial applied to delays in rendering a verdict. The Court held that a delay of Vh years between the defendant's non-jury trial and the return of a guilty verdict violated the defendant's constitutional right to a speedy trial and required that he be discharged. In so holding, the Young Court noted that a delay of over forty months also constituted a gross violation of Pa.R.Crim.P. 1122. The Court's holding, however, was based on constitutional grounds.

      . The Commonwealth represents to this Court in its appellate brief that appellant has been granted parole.


author: HESTER, Judge:

text:
    625 A.2d 1221
    COMMONWEALTH of Pennsylvania v. David Keith PROCTOR, Appellant.
    Superior Court of Pennsylvania.
    Argued March 9, 1993.
    Filed June 3, 1993.

      Samuel W. Milkes, Carlisle, for appellant.
    Alison Taylor, Asst. Dist. Atty., Carlisle, for Com., appellee.
    Before CIRILLO, POPOVICH and HESTER, JJ.
   HESTER, Judge:

David Keith Proctor appeals from the judgment of sentence of thirty days to twenty-three months imprisonment imposed after he was found guilty at a jury trial of driving while under the influence of alcohol, incapable of safe driving and driving while under the influence of alcohol with a blood alcohol content of .10% or greater. We conclude that appellant’s conviction of driving with a blood alcohol content of .10% or greater cannot be sustained due to a lack of relation-back testimony. However, we conclude that his conviction of driving while under the influence of alcohol, incapable of safe driving rests on sufficient evidence. We therefore affirm in part, reverse in part, and remand for resentencing.

The evidence was as follows. Jeffrey George Morrow is employed at the Camp Hill Shopping Mall as a maintenance man and was working the 3:00 p.m. to 11:00 p.m. shift on December 8,1989. At approximately 10:00 p.m., the mall just had closed, and he was cleaning the windows to one of the mall entrances. He observed a black compact pick-up truck coming toward the mall. The vehicle failed to negotiate a turn, went out of control, crossed over a lane of traffic, went up over a sidewalk, struck a planter, and came to a rest just before it struck the building.

Mr. Morrow approached the truck to admonish the driver, who was appellant. Appellant acknowledged that he had driven improperly and left the area. Mr. Morrow reported the incident and the license plate number of the truck to William Paul Stilo, who is a security officer for the mall. Mr. Stilo reported the incident to the Camp Hill Police Department, and Officer David Pepperman responded. The two men searched unsuccessfully for the truck from 10:15 to 10:30 p.m.

At approximately 11:00 p.m., prior to leaving work, Mr. Stilo drove through the parking areas to check for anything unusual. He observed a truck with its motor running in the rear parking area. The license plate number of that truck corresponded to the one that was given to Mr. Stilo by Mr. Morrow. Mr. Stilo looked inside the truck and saw appellant asleep, the door ajar, the radio playing, and a can of beer between appellant’s legs. Mr. Stilo radioed for police.

Officer Pepperman returned to the mall and with some difficulty, managed to arouse appellant. Appellant, who had alcohol on his breath, fumbled for his driver’s license, passing it several times in his wallet even though the license was visible to Officer Pepperman. Officer Pepperman noticed a strong odor of alcohol in the truck. Appellant was arrested and transported to the Cumberland County Central Booking Center where James R. Akers processed him. Officer Akers administered two field sobriety tests; appellant refused to perform a third test and failed the two that he completed. At 12:00 p.m., Officer Akers administered an intoxilyzer test, and appellant’s blood alcohol content was .179%. At the time of processing, appellant’s gait was unsteady, his speech was slurred, and his eyes were glassy. Appellant also admitted to drinking eight to twelve beers at two different locations. He stated that he had his last alcoholic drink at 7:00 p.m.

Based on this evidence, appellant was convicted both of driving while under the influence, incapable of safe driving, and driving while under the influence with a blood alcohol content of .10% or greater. Appellant contends that neither conviction rests on sufficient evidence.

Initially, we note that our standard of review is clear. In Commonwealth v. Vanderlin, 398 Pa.Super. 21, 33, 580 A.2d 820, 827 (1990), we stated:

The law is clear that in reviewing a sufficiency of the evidence claim, we view the evidence in the light most favorable to the verdict winner, and drawing all reasonable inferences therefrom, we determine whether there is sufficient evidence to establish each element of the crime beyond a reasonable doubt. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986); Commonwealth v. Hunter, 381 Pa.Super. 606, 610, 554 A.2d 550, 551 (1989). In applying this test, we must evaluate the entire trial record and consider all evidence actually received. Griscavage, 512 Pa. at 543, 517 A.2d at 1257.

75 Pa.C.S. S 3731(a) defines the offenses at issue and, provides, in relevant part, that a “person shall not drive, operate or be in actual physical control of the movement of any vehicle while: (1) under the influence of alcohol to a degree which renders the person incapable of safe driving; ... or (4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.”

We address appellant’s contentions which relate to both convictions first. He contends that the Commonwealth did not present sufficient evidence that he was operating or in actual physical control of the movement of a motor vehicle at the time of apprehension since when arrested, he was asleep and his truck was parked legally. Appellant, however, has failed to acknowledge the testimony of Mr. Morrow. That testimony establishes that one hour prior to being found asleep in the vehicle, appellant was operating his truck in the parking lot and nearly drove it into the mall building.

Appellant also suggests that the Commonwealth failed to establish that he drove the vehicle on a highway or traffic-way, which is required under the Motor Vehicle Code to establish a violation of driving while under the influence. He alleges that a parking space located in a shopping area fails to meet that definition. Once again, appellant ignores the testimony of Mr. Morrow, to the effect that appellant drove around the parking lot in the mall one hour prior to his apprehension. A traffieway is defined, in relevant part, as any place any part of which is “open to the public for purposes of vehicular travel as a matter of right or custom.” 75 Pa.C.S. § 102.

We recognize that we have held that where it is not clear that a particular parking lot is open to the public, the Commonwealth must establish that it is. Commonwealth v. Owen, 397 Pa.Super. 507, 580 A.2d 412 (1990) (parking lot in university park must be established to be open to public). In the present case, however, the evidence established that appellant drove in a parking lot of a mall that is open to the public for shopping. Notes of Testimony, 9/24-25/90, at 5. Thus, there was sufficient evidence for the jury to conclude that the parking area was a trafficway. See Commonwealth v. Cozzone, 406 Pa.Super. 42, 593 A.2d 860 (1991) (parking area of condominium complex is trafficway as it is generally open to public); Commonwealth v. Wilson, 381 Pa.Super. 253, 553 A.2d 452 (1989) (parking lot to Elk’s Lounge is trafficway as it is generally open to the public). This contention fails.

Appellant also argues that the evidence was not sufficient to establish that he was under the influence of alcohol to an extent that he was incapable of safe driving. Mr. Morrow testified that at 10:00 p.m., appellant lost control of his car, drove over a sidewalk and a planter, and nearly struck the mall. This occurred one hour before he was observed with a beer in his lap, a strong odor of alcohol on his breath, and slurred speech, an unsteady gait, and glassy eyes. Further, appellant admitted to police that he had consumed eight to twelve beers three hours before he drove to the mall area. In accordance with the above described standard of review, we conclude that this evidence was sufficient to establish that appellant was under the influence of alcohol at 10:00 p.m. to such an extent that he was incapable of safe driving.

Appellant also suggests that his conviction under section 3731(a)(4) is infirm under Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), because the Commonwealth failed to produce expert testimony relating back his blood alcohol content to the time that he was driving, which was over two hours prior to when his intoxilyzer test was performed. We are constrained to agree with this contention.

In Jarman, a state trooper noticed that one of the headlights of the defendant’s car was extinguished. The defendant was driving steadily within his lane and was not traveling too fast or too slow. The trooper pulled over the defendant’s car and detected alcohol on his breath. Appellant’s performance on the field sobriety tests was slightly substandard. He was transported to a hospital, and one hour after the defendant exited his vehicle, his blood was drawn. His blood alcohol content was .114 percent.

The Supreme Court observed that in order to be convicted under section 3731(a)(4), one’s blood alcohol content while driving must be .10 percent or greater. The Court determined that the jury lacked a sufficient basis to convict the defendant under section 3731(a)(4) since the Commonwealth’s expert failed to relate back the test results to the time the defendant was driving. The Court based its decision on the fact that the test result barely exceeded the .10 percent level and that the time lapse between the driving and the taking of the sample was not insignificant. The Court also observed that the expert admitted that the laboratory’s blood testing equipment had a margin of error of plus or minus 10%, which would have placed the defendant’s blood alcohol level as low as .104 percent at the time that the sample was drawn. Finally, the defendant testified that he had his last drink during a time which would have meant that his blood alcohol content was rising between when he was driving and when the sample was drawn. This evidence was not contradicted. The Court concluded that under those circumstances, the inference of guilt was too weak to sustain the conviction under section 3731(a)(4).

In Modaffare, the defendant struck a parked car. Two hours after the accident, his blood sample was taken, and he had a blood alcohol content of .108%. The physician who drew the blood sample testified that a person’s blood alcohol level fluctuates so that the level rises after drinking until a peak is reached and then declines. He admitted that the defendant’s level may have been rising during the time of the accident and when the sample was drawn. Once again, the Court concluded that the expert testimony on the issue of blood alcohol content at the time that the defendant was driving was ambiguous and left open to speculation whether a violation of section 3731(a)(4) occurred. Specifically, the Court’s conclusion rested on the fact that the result of the test exceeded the legal limit by only a very small amount, and the time lapse between when the defendant was driving and when the blood was drawn was significant.

Highly relevant to the present case is the following language, which appears in both opinions:

In cases where test results show levels of alcohol significantly above 0.10% and where blood samples have been obtained soon after suspects have been stopped, there is a very strong inference that blood alcohol levels were in the prohibited range while driving. However, where, as in the present case, the blood test result barely exceeded the. 0.10% level and the lapse of time between driving and the taking of the blood sample was not insignificant, the inference of guilt is weakened.

Commonwealth v. Jarman, supra, 529 Pa. at 96, 601 A.2d at 1231 (emphasis added); see also Commonwealth v. Modaffare, supra, (where the Court used identical language except that it characterized the two-hour delay between the driving and the extraction of the blood sample as a “significant” delay).

Under Modaffare, it is clear that the delay between the time when appellant was seen operating his car and when the blood alcohol content test was taken is significant. Thus, there is no presumption that appellant’s blood alcohol levels were in the prohibited range while driving. Furthermore, there was not a shred of evidence presented by the Commonwealth as to when blood alcohol levels rise or fall or whether, based on appellant’s admission as to when he last consumed alcohol, his blood alcohol content would have been falling or rising between when he was observed driving and when his test was administered.

It was the Commonwealth’s burden to establish beyond a reasonable doubt that appellant’s blood alcohol content while he was driving was .10% or greater. While appellant’s test results were higher than those in Modaffare and Jarman, it was not so significant that in the absence of some testimony as to fluctuations in blood alcohol readings, we can say that there was sufficient evidence to establish appellant’s blood alcohol content at the relevant time. Under the circumstances, the Commonwealth failed to sustain its burden of proof. See also Commonwealth v. Osborne, 414 Pa.Super. 124, 606 A.2d 529 (1992) (relation-back testimony required, even though test was taken within an hour of when defendant drove, since .1488 percent was not a substantial departure from .10%). Compare Commonwealth v. Kasunic, 423 Pa.Super. 112, 620 A.2d 525 (1993) (where blood alcohol content reading was taken within one hour of driving and over twice the legal limit, no relation-back testimony was required); Commonwealth v. Mukina, 422 Pa.Super. 455, 619 A.2d 766 (1993) (blood alcohol content over twice legal limit and taken within one hour of driving; relation-back testimony not required to sustain conviction).

Judgment of sentence reversed. Appellant’s conviction of 75 Pa.C.S. § 3731(a)(4) is vacated; his conviction of 75 Pa.C.S. § 3731(a)(1) is affirmed. Case remanded for resentencing. Jurisdiction relinquished.