text:
    443 A.2d 845
    COMMONWEALTH of Pennsylvania, v. Benjamin PORTA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 5, 1981.
    Filed March 26, 1982.
    Petition for Allowance of Appeal Denied Sept. 1, 1982.

      Clifford B. Conn, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

Appellant, Benjamin Porta, appeals from the lower court’s order denying his request for relief under the Post-Conviction Hearing Act (PCHA). We affirm.

On May 12, 1954, appellant, while represented by two attorneys appointed by the trial court, pled guilty before a three-judge-panel to the stabbing death of one Ms. Marian Sommerfield. The trial court, after accepting appellant’s first-degree murder plea, imposed a sentence of life imprisonment. Appellant took neither a direct appeal from the judgment entered (having filed no post-trial motions) nor did he submit a petition to withdraw his plea. In fact, no legal action was taken by appellant until he filed a pro se PCHA petition on July 26, 1978, in which he alleged the denial of his right to the representation by competent counsel at the preliminary hearing. Per appellant’s request, the court appointed counsel who presented an amended PCHA petition on February 21, 1979 contending, in essence, that: 1) appellant was denied his right to representation by counsel at the preliminary hearing; and 2) appellant’s confession, obtained during custodial interrogation, was not “given freely and voluntarily[.]” The Commonwealth’s response to said petition was that the claims raised therein were either finally litigated or waived. At the hearing, the appellant was the only one to testify and his testimony was restricted to the issues set down in the amended PCHA petition. After the proceeding, the lower court denied appellant’s request for relief on October 1, 1980. Because appellant’s attorney became associated with the District Attorney’s Office of Philadelphia County, he could no longer represent appellant for the purposes of an appeal, so the court appointed new (private) counsel on October 2nd. However, new counsel failed to perfect a timely appeal. As a result of this nonfeasance, the lower court, at a hearing held on December 5,1980, granted appellant the right to petition this Court for permission to appeal nunc pro tunc, which was granted by a Per Curiam order dated February 9, 1981. Thereafter, the present appeal was filed. It is to be noted that at the December 5th hearing, appellant was asked by the court, given new counsel’s ineffectiveness in neglecting to pursue a timely appeal initially, whether “[u]nder those circumstances ... [he] wish[ed] this same attorney to remain on the case?” (N.T. 12/5/80, at 11) Appellant answered, “Yeah, because I think the reason is no fault of his. It’s just circumstances.” Ibid.

Before we can reach the merits of appellant’s claims, we must determine whether the Commonwealth’s assertion that the issues raised in the PCHA petition are waived, and thus not preserved for appellate review, because appellant “did not attempt to withdraw his guilty plea and never filed a direct appeal.” See Commonwealth v. Jones, 477 Pa. 266, 267, 383 A.2d 936, 938 (1978) (Logically, the Court needs to determine whether the petitioner has waived his claim prior to reaching the merits); accord Commonwealth v. Holmes, 468 Pa. 409, 414 n. 4, 364 A.2d 259, 262 n. 4 (1976); Commonwealth v. Hayes, 462 Pa. 291, 298, 341 A.2d 85, 89 (1975). In support of such contention, the Commonwealth cites us, to 19 P.S. § 1180-3(d), 4(b) & (c). We find that the PCHA’s waiver concept is not applicable to the case at bar.

Initially, we note that it is now settled that the proper procedure for attacking a guilty plea following the entry of judgment of sentence is to file with the trial court which accepted the plea a petition to withdraw the plea. Commonwealth v. Beatty, 474 Pa. 104, 376 A.2d 994 (1977); Commonwealth v. Flynn, 295 Pa.Super. 513, 442 A.2d 256 (1982). However, at the time appellant pled guilty, an accused could challenge his conviction on direct appeal, see Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968), or assail the validity of his plea in a collateral proceeding initiated pursuant to a writ of habeas corpus, see Commonwealth v. Melton, 449 Pa. 223, 296 A.2d 727 (1972); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965). Based on the aforesaid, since the PCHA did not become effective until March 1,1966, and given the fact that there was no waiver doctrine either by statute or by case law before 1966, we find that the waiver concept can bar a claim, raised in a petition under the PCHA, “only if an appellant knowingly and understandingly failed to raise the claim in a proceeding filed after the effective date of the [PCHA].” (Emphasis added) (Citations omitted) Commonwealth v. Goldsmith, 452 Pa. 22, 24, 304 A.2d 478, 480 (1973). Instantly, the first petition (“proceeding”) filed by the appellant after the effective date of the PCHA was the July 26, 1978 pro se petition which was later amended and the denial of which is presently before this Court for review. Thus, we decline to apply the waiver provisions of the PCHA retroactively to bar consideration of claims, presented in the context of a PCHA petition, which could have been raised in a direct appeal or in a habeas corpus petition prior to the PCHA’s effective date. See Commonwealth v. Melton, 465 Pa. 529, 532 n. 3, 351 A.2d 221, 223 n. 3 (1976); Commonwealth v. Goldsmith, supra; Commonwealth v. Schmidt, 452 Pa. 185, 188 n. 4, 299 A.2d 254, 267 n. 4 (1973); see also Commonwealth v. Fernandez, 487 Pa. 493, 496 n. 6, 410 A.2d 296, 298 n. 6 (1980).

We now turn our attention to the averments raised by the petitioner on appeal. Appellant first argues that he was unconstitutionally denied the right to counsel at his preliminary hearing held on January 3, 1954. Although the United States Supreme Court held in 1970 that a preliminary hearing is a critical stage in a criminal proceeding requiring the presence of counsel unless knowingly waived, Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), that decision is not retroactive. Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); Commonwealth v. Thomas, 440 Pa. 213, 270 A.2d 211 (1970); Commonwealth v. James, 440 Pa. 205, 269 A.2d 898 (1970). We need not consider, therefore, whether appellant was in fact denied counsel at the preliminary hearing. Commonwealth v. Leamer, 449 Pa. 76, 295 A.2d 272 (1972); Commonwealth v. Campas, 232 Pa.Super. 347, 331 A.2d 670 (1974).

Appellant next complains that the confession he gave to the police was erroneously admitted at the guilty plea hearing because it was not voluntarily given. In support of this position, our attention is called to the following. Porta was interrogated by the police for approximately two hours, while he was handcuffed to a chair. The appellant also testified to being beaten and threatened by the police into confessing. The hearing court, after evaluating the appellant’s version, made the following determination:

“We are convinced and find as a fact that the defendant’s confession given by him to the police following his arrest was not coerced. We find as a fact that such confession was the product of a free and unfettered will; that such confession was made freely and voluntarily. We conclude as a matter of law that the confession was validly admitted into evidence at defendant’s guilty plea hearing.” (Lower Court Opinion at 3-4)

On the subject of reviewing a PCHA court’s determination, this Court has held:

“The PCHA court has discretion to disbelieve testimony; thus, self-serving or uncorroborated statements on petitioner’s behalf do not shift and do not necessarily sustain petitioner’s burden of proof, even when the Commonwealth presents no rebuttal evidence. See Commonwealth v. Grandy, 212 Pa.Super. 438, 243 A.2d 188 (1968). In Commonwealth v. Sullivan, 472 Pa. 129, 145, 371 A.2d 468, 476 (1977), our Supreme Court stated that ‘[t]he findings of the PCHA court, which hears the evidence and passes on the credibility of the witnesses, should be given great deference. . . . Consequently, this Court will not disturb its findings if they are supported in the PCHA record.... This is true even when the record could support a contrary holding.’ (citations omitted). See Commonwealth v. Lee, 478 Pa. 70, 385 A.2d 1317 (1978); Commonwealth v. Wil der, 469 Pa. 237, 364 A.2d 1357 (1976); Commonwealth v. Minnick, 432 Pa. 462, 247 A.2d 569 (1968); Commonwealth v. Wright, 232 Pa.Super. 470, 334 A.2d 766 (1975).” Commonwealth v. Sweitzer, 261 Pa.Super. 183, 189-93, 395 A.2d 1376, 1380-81 (1978).

In light of the preceding, and since it is not the function of this Court to engage in a de novo evaluation of testimony elicited at a PCHA hearing, see Commonwealth v. Clayton, 496 Pa. 492, 437 A.2d 1147 (1981), we are not persuaded by the appellant to disturb the ruling made by the lower court.

Order affirmed.

      . The Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq. as amended, 19 P.S. § 1180-1 et seq., repealed by Section 2(a) [1397] of the Act of April 28, 1978, P.L. 202, No. 53 repeal effective June 27, 1980, as amended by Section 1 of the Act of June 26, 1980, P.L. 265, No. 77, § 2, delaying repeal until June 27, 1981.

      . To be eligible for relief under the PCHA, a petitioner must prove, inter alia:

      “That the error resulting in his conviction and sentence has not been ... waived.” Section 3(d) of the PCHA, 19 P.S. § 1180-3(d) (Supp. 1977-78).
      Furthermore, Section 4(b) of the PCHA, 19 P.S. § 1180 4(b) (Supp. 1977-78), provides:
      “For purposes of this act, an issue is waived if:
      (1) The petitioner knowingly and understanding^ failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and
      (2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.”
      Finally, Section 4(c) of the PCHA, 19 P.S. § 1180 4(c) (Supp. 1977-78), provides:
      “There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.”

      . Additionally, we find it appropriate to mention that the record of the PCHA hearing leaves no doubt that the Commonwealth introduced no evidence to show that appellant waived his right to appeal and to the assistance of counsel. Therefore, the Commonwealth did not meet its burden of demonstrating that appellant’s failure to appeal was “ ‘an intentional relinquishment or abandonment of a known right.’ ” Commonwealth v. Wilson, 430 Pa. 1, 3, 241 A.2d 760, 762 (1968) (quoting Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 218, 220 A.2d 883, 884 (1966); Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 160, 218 A.2d 811, 813 (1966)); see also Commonwealth v. Crowson, 450 Pa. 218, 299 A.2d 318 (1973); Commonwealth v. DeSimone, 447 Pa. 380, 381 n. 1, 290 A.2d 93, 94 n. 1 (1972); Commonwealth v. Jones, 447 Pa. 228, 286 A.2d 892 (1971); Commonwealth v. Robinson, 442 Pa. 512, 276 A.2d 537 (1971); Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970); see generally Commonwealth v. Fareri, 271 Pa.Super. 174, 412 A.2d 632 (1979). Accordingly, we hold that the appellant is entitled to have the denial of his PCHA petition reviewed in this appeal.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    443 A.2d 849
    Anita T. CROSBIE v. WESTINGHOUSE ELEVATOR COMPANY and United Elevator Company. Appeal of UNITED ELEVATOR COMPANY. Anita T. CROSBIE v. WESTINGHOUSE ELEVATOR COMPANY and United Elevator Company. Appeal of WESTINGHOUSE ELEVATOR COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1981.
    Filed March 26, 1982.
    Petition for Allowance of Appeal Denied July 2, 1982.

      Richard A. Kraemer, Philadelphia, for appellant (at No. 165) and for appellee (at No. 276).

      William C. McGovern, Philadelphia, for appellant (at No. 276) and for appellee (at No. 165).
    Before BECK, WATKINS and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the lower court erred in granting appellee a new trial limited to damages. We agree and, accordingly, reverse the order of the lower court and reinstate the jury verdict.

Appellee brought this action against the manufacturer and the servicing company of an elevator, alleging that she had been injured when the elevator plummeted two floors and abruptly stopped, hurling her to its floor. Following a lengthy trial, the jury returned a $17,500 verdict against both appellants. Appellee filed post-trial motions alleging, inter alia, that the jury award was inadequate and that the lower court had prejudicially charged the jury. The lower court agreed and granted appellee a new trial on damages only. This appeal followed.

Appellants contend that the lower court erred in granting a new trial because appellee had waived her objection to the court’s purportedly improper remarks. Appellee contends, however, that she indeed had preserved her objection. We disagree. At the close of its charge, the lower court stated:

You’ve had an opportunity to see [appellee]. You’ve seen her walking around the room here. You’ve seen her sitting here. And I’m sure that you’ll have the opportunity to consider all of these factors in your determination and your verdict.

(N.T. Vol. V. at 681-82.) After the jury retired to deliberate, the following colloquy occurred:.

[Appellee’s counsel]: Your Honor, may I have an exception to your last portion of your charge?
The Court: All right, you may have an exception. [Appellee’s counsel]: I’m talking as to the failure to call the witness—

The Court: You may have an exception.

(Id. at 682-83.) “A general exception to the charge to the jury will not preserve an issue for appeal. Specific exception shall be taken to the language or omission complained of.” Pa.R.A.P. 302(b). Thus, a specific exception must be lodged to preserve an objectionable charge for post-trial motions, Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981), as well as for appellate review, Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Appellee’s general exception “to [the] last portion of [the] charge” is insufficient to preserve any objection to the jury charge. Pa.R.A.P. 302(b). Counsel specified, however, that he was “talking as to the failure to call the witness—.” In context, it is clear that counsel was referring to the court’s refusal to instruct that appellants’ failure to call certain medical witnesses would permit the jury to infer that their testimony would have been detrimental to appellants—a claim forsaken on this appeal. Appellee at no time specifically objected to the remarks complained of here, and thus waived her objections. The lower court’s grant of a new trial will not be disturbed on appeal “unless there has been a clear abuse of discretion or an error of law which necessarily controlled the grant of the new trial.” Kralik v. Cromwell, 435 Pa. 613, 615, 258 A.2d 654, 656 (1969). Accord, Gilligan v. Shaw, 441 Pa. 305, 309, 272 A.2d 462, 464 (1971); Hilliard v. Anderson, 440 Pa. 625, 627-28, 271 A.2d 227, 228 (1970); Carl v. Kurtz, 255 Pa.Superior Ct. 198, 201, 386 A.2d 577, 578 (1978). In granting a new trial for an alleged error that had been waived, the lower court committed “an error of law which necessarily controlled the grant of the new trial.” Kralik v. Cromwell, supra, 435 Pa. at 615, 258 A.2d at 656. Accordingly, we find that the lower court erred in granting appellee a new trial on the basis of its concluding remarks to the jury.

Although the lower court also found the verdict inadequate, it failed to explain that ruling in its opinion. A trial court should give more than conclusory statements to justify granting a new trial. Kralik v. Cromwell, supra, 435 Pa. at 615, 258 A.2d at 656. When the lower court fails to state sufficient reasons for granting a new trial, “we are obliged to examine the entire record to determine whether any valid reason exists for disturbing the jury’s verdict.” Id. See also Gilligan v. Shaw, supra. “Where the verdict is, as here, substantial, a new trial ‘for inadequacy’ should be granted only when the trial court is convinced the verdict is so unreasonably low as to present a clear case of injustice.” Karcesky v. Laria, 382 Pa. 227, 235, 114 A.2d 150, 154 (1955). Appellee’s medical expenses were less than $2,000. Moreover, there was contradictory evidence on the extent of her injuries and her ability to return to work. Under these circumstances, we cannot find the verdict so unreasonably low as to justify the lower court’s repudiation.

Because the lower court erred in granting a new trial on an issue that had been waived, and the verdict is not unreasonably low, we reverse and direct that judgment be entered upon the jury verdict.

So ordered.

       Appellee’s contention that counsel was prevented from objecting further is without merit. After having been granted a general exception by the lower court, counsel properly persisted in taking a specific exception. It is clear from the record, however, that had counsel intended to object specifically to the allegedly prejudicial comments, he certainly could have done so.


author: VAN der VOORT, Judge: BROSKY, Judge,

text:
    443 A.2d 851
    COMMONWEALTH of Pennsylvania v. Thomas HARRIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1980.
    Filed March 26, 1982.
    Petition for Allowance of Appeal Denied Sept. 14,1982.

      John H. Corbett, Jr., Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Appellant was convicted of robbery and sentenced to a term of seven and one half (7VÍ2) years imprisonment. On appeal, appellant raises five issues, which we will resolve seriatim. Finding no merit to any of these claims we affirm the judgment of sentence.

I. On November 10, 1978, at 10:20 a. m., the Pittsburgh National Bank branch office located in the William Penn Hotel in downtown Pittsburgh was robbed by three or four masked, black men, one of whom was armed. A sum of $11,000 was taken and placed in a yellow pillow case. During the robbery, a surveillance camera and silent alarm in the bank were activated. The police responded immediately. Shortly after the occurrence of the robbery a description of the men was transmitted via police radio.

The broadcast reported that the suspects had fled, running through the lobby of the William Penn Hotel. Two police officers were at the intersection of Bedford Avenue and Crawford Street, several blocks from the bank, when they received the radio information. These officers spoke with a cab driver whom they had observed a few minutes earlier transporting three or four black men, one of whom was wearing clothing which fit the description broadcasted. The driver told the officers that he had picked up the passengers behind the William Penn Hotel. He informed them that he had discharged his passengers near the Connelly Trade School and that they had run down the hillside.

The police moved into the area of the school and quickly apprehended the appellant and two other suspects whom they observed moving in a suspicious manner. No one else was observed on the hillside. A yellow pillow case containing some of the stolen money was recovered along with various items of discarded outer clothing, including ski masks which matched descriptions given by witnesses. The arrests occurred less than one mile from the robbery scene, only 40 minutes having lapsed from the time of the robbery.

Appellant argues that his arrest, based only on a general description was without probable cause. We disagree.

[It was] held in Commonwealth v. Brooks, 468 Pa. 547, 364 A.2d 652 (1976), that probable cause is essential to the legality of arrest, meaning that the facts and circumstances known to the police or about which they have reasonably trustworthy information at the time of the arrest must be sufficient to warrant a person of reasonable caution in believing the suspect has committed or is committing a crime. The Commonwealth has the burden to establish probable cause with reasonable specificity and mere suspicion is not enough. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974). See also Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).
Commonwealth v. Bartlett, 486 Pa. 396, 400, 406 A.2d 340 (1979).

In Commonwealth v. Bynum, 265 Pa.Super. 13, 401 A.2d 776 (1979), we explained that although general descriptions of a suspect which are equally applicable to large numbers of people will not ususally support a finding of probable cause, . . . each case must be analyzed in light of its own particular circumstances. Among the circumstances which we considered as providing probable cause in that case were the fact that the appellant was arrested at a location and a time close to that of the crime. We also noted that the arrested persons were the only people seen by the police in that area. See also Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979).

Similarly, under the circumstances present in this case, we find that a person of reasonable caution would be justified in believing the appellant to have committed a crime. See Commonwealth v. Bartlett, 486 Pa. 396, 406 A.2d 340 (1979). Appellant was arrested at a place and time close to that of the robbery, he fit generally the description of one of the suspects, he and his companions were the only persons spotted in the area and they were moving in a suspicious manner. A cab driver had taken three men from the scene of the robbery to the locality where the three were arrested.

II. Appellant was arrested at approximately 11:00 a. m. He was questioned by City of Pittsburgh detectives at the Public Safety Building at 11:30 a. m. Appellant indicated that his role in the robbery was to go behind the tellers’ counters and remove money from the drawers. He identified a yellow pillow case as one used in the robbery. Before such interview appellant was advised of his constitutional rights; he signed a form acknowledging having been so advised. (N.T. Suppression, pp. 349-52). This first admission is not challenged.

At approximately 2:20 p. m., appellant was again interviewed, this time by F.B.I. agents. Mr. Harris was again apprised of his rights. At this time appellant denied any participation in the robbery. Upon his request for an attorney, the questioning was terminated. (N.T. Suppression, pp. 436-40).

That same afternoon at approximately 4:30 p. m., appellant was arraigned. Shortly after arraignment, in an attempt to determine who the fourth actor was and to recover an amount of the stolen money still missing, the investigating law enforcement agencies decided to again talk with Mr. Harris. Appellant was again advised of his Miranda rights. With detectives of the City of Pittsburgh and agents of the F.B.I. both present, appellant was informed that “bait money” from the bank had been recovered from the scene of the arrest; that various pieces of clothing had been recovered also from the arrest scene which matched the clothing worn by the actors who had robbed the bank; and appellant was shown photographs taken with the bank’s surveillance camera. Appellant furnished certain information and then indicated he did not wish to say anymore. He was informed that he could discontinue the conversation whenever he so wished. Instead, appellant pointed himself out in a photograph, indicating he was the one wearing a blue jacket with white stripes. After hesitating he also identified the other actors in the picture. He then declined to continue the discussion and it ceased. (N.T. Suppression, pp. 465-71).

Appellant argues that since he had refused to continue the second interview without the presence of an attorney the admission resulting from the display of the photographs should have been suppressed. We disagree.

In Commonwealth v. Rose, 265 Pa.Superior Ct. 159, 401 A.2d 1148 (1979), the defendant decided to remain silent and no interrogation took place. Subsequently, the police confronted the defendant with ballistic reports and other facts which connected him to other crimes. After a second reading of his Miranda rights, the defendant relinquished such rights and gave an inculpatory statement. This court found such statement to be admissible. See also Commonwealth v. Grandison, 449 Pa. 231, 296 A.2d 730 (1972). We hold likewise in the current case where appellant was informed of additional evidence and Miranda warnings were properly re-administered.

Nor do we find that the recent decision in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) requires a different result. Edwards held that once a suspect invbkes his rights to remain silent, the police may not further question him unless he institutes the new discussion. Our Supreme Court implicitly endorsed such a rule in Grandison but permitted an exception for permitting the suspect to be advised of new evidence or change in circumstances. Such an exception is especially appropriate here, where the second admission was nothing more than a confirmation of the first confession.

III. Mr. Harris urges us to adopt a rule requiring the police to preserve rough notes taken during interviews of defendants. Appellant rests his argument on U. S. v. Vella, 562 F.2d 275 (3rd Cir. 1977), where the Third Circuit Court of Appeals established such a role pertaining to agents of the United States. Appellant does not allege violation of Pennsylvania Rules of Criminal Procedure, Rule 305(B) which governs pretrial disclosure by the Commonwealth.

Subsection 305(B)(1)(b) requires the Commonwealth to supply to a defendant:

any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made, which is in the possession or control of the attorney for the Commonwealth.

The substance of the rule proposed by appellant would effectively amend the existing Rule. We leave to our Supreme Court any such. alteration of the rules which it promulgates.

IV. Appellant complains that a mistrial should have been granted when a Commonwealth witness referred to appellant’s request for an attorney. An F.B.I. agent stated that five or six minutes into his interview with Mr. Harris, appellant requested an attorney. Appellant’s motion for a mistrial was denied and no curative instruction was requested or given. Appellant claims he was prejudiced by an inference of guilt arising from his request for an attorney.

Such a reference does not automatically require a new trial. Instead, a new trial is only necessitated where an improper comment was not curable by curative instruction or where it is curable but such was not given and the trial court and trial counsel could not reasonably conclude that such would reinforce the inference. In the context of this current case, we find that a curative instruction could have negated the inference, but instead counsel failed to request such instruction, possibly concluding reasonably that such would reinforce the inference. Commonwealth v. Bunting, 284 Pa. Superior Ct. 444, 426 A.2d 130 (1981). As appellant did not request a curative instruction, he may not on this appeal complain of prejudicial error. Commonwealth v. Humphreys, 267 Pa. Superior Ct. 318, 406 A.2d 1060 (1979). See also the discussion in part V of this opinion.

V. Finally, appellant complains of a statement made by a detective on direct examination. The detective was relating the substance of an interview conducted with the appellant. He stated that he had indicated to Mr. Harris that the evidence was “stacked up against him.” Defense counsel objected and requested a mistrial; the request was denied. The court ordered the statement stricken and instructed the jury to disregard it (N.T. Trial, pp. 514-515). Appellant complains that a mistrial should have been granted and that the curative instruction tended to reinforce the remark in the minds of the jury.

We believe that the alleged prejudicial comments must be evaluated with regard to the circumstances of each trial, including, but not limited to: the nature of the comment, the person to whom the alleged prejudicial comment was directed, the identity of the person making the comment, and if a witness, the importance of that witness’ testimony to either the Commonwealth’s or defense's case, and whether the court gave immediate cautionary instructions if it deemed the remark prejudicial.

Commonwealth v. Grant, 479 Pa. 74, 82, 387 A.2d 841 (1978). The appropriate action to be taken, after evaluating the circumstances of each case rests in the discretion of the trial judge. Commonwealth v. Silvis, 445 Pa. 235, 284 A.2d 740 (1979); Commonwealth v. Taliaferro, 273 Pa. Superior Ct. 151, 417 A.2d 213 (1979).

Evaluating the present case in light of Grant and the other cases we find the following. First, as to the court’s instruction to disregard, we find it highly unlikely that it could reinforce any possible prejudice; the court’s instruction was curt and without explanation. Furthermore, the four word comment in question, is the only comment (except for the one discussed in part IV of this opinion) complained of in over six hundred pages of testimony and the charge to the jury. It was clearly an isolated passing reference volunteered by the witness and not responsive to the question. In these circumstances we fail to find an abuse of the lower court’s discretion in denying the motion for a mistrial. See also discussion in part IV infra.

Judgment of sentence affirmed.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent. I believe that the incriminating statements made by appellant during his third interview on November 10 should have been suppressed.

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the U. S. Supreme Court held,

... [W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused .. ., having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. (Footnote deleted)

Id. at 484-85, 101 S.Ct. at 1884, 1885.

In the present case, the City of Pittsburgh Police and the F.B.I. conducted what was termed an “interview” of appellant, after he had invoked his right to counsel. (See N.T. Suppression, p. 465.)

The majority seeks to avoid the mandate of Edwards, supra, by relying on the earlier Pennsylvania cases, Commonwealth v. Rose, 265 Pa.Super. 159, 401 A.2d 1148 (1979), and Commonwealth v. Grandison, 449 Pa. 231, 296 A.2d 730 (1972). Both cases are distinguishable from the instant one.

The court in Grandison stated that it believed that questioning of the defendant was justified despite his having elected to remain silent, because of a “substantial change in circumstances.” Those circumstances included finding out the identity of the defendant and learning that he had been charged with other crimes. He was confronted with those matters. Not only do such circumstances not exist in this case, it is important to note Grandison predates the Supreme Court’s Edwards decision by nine years. The Edwards mandate is clear.

In Rose, the court addressed the issue of whether an admission obtained when a defendant was shown a ballistic report was admissible. In that case, the police had confronted the defendant with evidence, but the majority was careful to note that “after appellant decided to remain silent no interrogation took place.” Id., 265 Pa.Superior Ct. at 168, 401 A.2d at 1153.

In the present case, on the other hand, questions were asked of appellant. (See n.8, suppression generally 465-470, 576-580, esp. 467.)

The interview should not have been commenced given appellant’s earlier invocation of his rights. Furthermore, the majority notes that during this interview appellant indicated that he wished to say no more; “he was then informed that he could discontinue the conversation whenever he so wished.” The testimony of the1 officers present at the interview was in pertinent part:

And he was told that he had the right to stop at any time and leave. We then told him that it would be to his benefit to—well, it would be to our benefit to get the other individual identified, and that we were asking his cooperation due to the fact that we had certain evidence which implicated him, to continue on with the statement. And so, he would then come over, sit down and begin his statement again.
N.T. Suppression, 467.
Mr. Harris indicated then that’s all he wanted to say, and he began to indicate he wanted to walk out, and he proceeded to the door. And we indicated to him that we would like him to reconsider and tell us who else was involved in the robbery.
N.T. Suppression, 470.

In Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court wrote:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. 384 U.S. at 474, 86 S.Ct. at 1627.

Incriminating statements made after appellant attempted to end the interview should have been suppressed not only because the interview session should not have been commenced, but also because of the violations of Miranda that occurred during the interview.


author: PER CURIAM:

text:
    443 A.2d 856
    COMMONWEALTH of Pennsylvania, v. Lloyd L. WERTZ, Appellant.
    Superior Court of Pennsylvania.
    Argued April 13, 1981.
    Filed March 26, 1982.

      William D. Kemper, Butler, for appellant.
    Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   PER CURIAM:

Appellant was convicted of violating 75 Pa.C.S.A. § 4902 and sentenced on October 2, 1980 to pay a fine of $7,650.00, the costs of prosecution and upon default of payment, a prison sentence of 765 days. Judgment of sentence, including the alternative sentence, is vacated and the case remanded for resentencing in light of 75 Pa.C.S.A. § 6504(a), 42 Pa.C.S.A. § 9758(b) and Pa.R.Crim.P. 1405. The lower court shall consider any evidence presented regarding Appellant’s indigency in determining whether Appellant should be permitted to pay the fine and costs in installments. The lower court shall also consider any alternative sentence imposed in light of Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971).

This court does not retain jurisdiction.

SHERTZ, J., did not participate in the consideration or review of this case.


author: HESTER, Judge:

text:
    443 A.2d 1142
    COMMONWEALTH of Pennsylvania v. Rodney EVERETT, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 10, 1981.
    Filed April 2, 1982.
    Petition for Allowance of Appeal Denied Aug. 13,1982.

      William P. James, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before HESTER, ROWLEY and MONTGOMERY, JJ.
   HESTER, Judge:

The appellant, Rodney Everett, a/k/a Clifford Frazier, was tried before a jury in Philadelphia on charges of robbery, criminal conspiracy, possession of an instrument of a crime and of a prohibited offensive weapon for two separate incidents. A guilty verdict on all Bills of Indictment was returned on June 11, 1975 and again on June 19, 1975. On May 6, 1976, Motions for a New Trial and in Arrest of Judgment were denied and the appellant was then sentenced to 12 years probation for one robbery conviction; 6 to 12 years for the other robbery conviction; separate 3V2 to 7 year terms for each conspiracy conviction; 2lh to 5 years for possession of an instrument of a crime and 2*/2 to 5 years for possessing a prohibited offensive weapon. On August 13, 1980, a petition for relief under the Post Conviction Hearing Act was granted to the extent of permitting appellant to petition the Pennsylvania Superior Court for the right to appeal, nunc pro tunc, from the judgment of sentence. The petition was denied in all other respects. This appeal from the verdicts, entered June 11, 1975 and June 19, 1975, was filed September 2, 1980.

The appellant’s long and well-prepared brief began with the assertion that the handgun used by the appellant’s codefendant in the robbery of Mrs. Koch (hereinafter “first trial”) was not an offensive weapon as defined in Section 908 of 18 Pa.C.S.A. We agree. The offense set forth in Section 908(a) is defined as follows:

A person commits a misdemeanor of the first degree if, except as authorized by law, he makes repairs, sells, or otherwise deals in, uses, or possesses any offensive weapons.
The term “offensive weapon” is further defined in Section 908(c): .. . any bomb, grenade, machine gun, sawed-off shotgun, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

The handgun used by the appellant’s co-defendant is not specifically enumerated in Section 908(c); nor is it properly labelled an “other instrument for the infliction of serious bodily injury.” The purpose of Section 908 is to preclude the use of weapons which can serve no purpose other than to serve some criminal design. Commonwealth v. McHarris, 246 Pa.Super. 488, 371 A.2d 941 (1977). Certainly, the intent of the Pennsylvania legislature in enacting Section 908 was not to deny police officers and registered hunters the means to serve their lawful, necessary and recreational purposes. Consequently, we reverse the guilty verdict returned on the bill for possession of a prohibited offensive weapon.

The appellant proceeds with his contention that the evidence introduced at the first trial was insufficient to prove the remaining charges. Of course, it is well-established that upon review of the sufficiency of the evidence to sustain a verdict, all reasonable inferences are drawn favorable to the Commonwealth. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976); Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977). Pursuant to this guideline, we find the incidents and circumstances to have unfolded as follows:

On May 16, 1974, Mrs. Etta Koch, was operating her grocery store in Philadelphia when a teenager approached her counter and, held a pistol to her head and demanded the cash from the cash register. At that moment, the appellant ran into the store, jumped over the counter and demanded the rest of the money. When told that there was no more money, the appellant grabbed a pack of cigarettes and fled the scene with his co-defendant. After the robbery, both men were seen running together until they turned the corner and were out of sight.

Appellant does not deny the commission of a robbery; however, he argues that the robbery conviction be reversed because at no time during the robbery did he carry a weapon, employ threats or cause personal injury. The appellant is correct in his assessment of his actions during the actual robbery; however, the criminal acts of his co-defendant were properly imputed to him through use of the vicarious liability doctrine. Section 306 of the Pennsylvania Crimes Code imputes criminal responsibility to anyone who aids, agrees or attempts to aid a person in the planning or commission of a crime, providing such aid, agreement or attempt is done with the purpose of furthering the criminal design. Mere presence at the scene and knowledge of the commission of criminal acts is not enough to find one vicariously liable under Section 306. Commonwealth v. Henderson, 249 Pa.Super. 472, 378 A.2d 393 (1977). One person may be the actual perpetrator of the crime; however, another person is equally criminally liable if he aids that person with the intent of promoting that person’s act. Commonwealth v. Bridges, 475 Pa. 535, 381 A.2d 125 (1977).

It was more than coincidental that the appellant happened to jump the counter, demand the rest of the money and then settle for a pack of cigarettes immediately after the co-defendant held the victim at gunpoint and demanded money from the cash register. It was likewise far from coincidental that the appellant and co-defendant were seen fleeing the scene of the robbery side by side. There is enough evidence, then, for the jury to find that the appellant intended to facilitate the co-defendant’s act, that the appellant aided and abetted him and; consequently, that the appellant committed robbery.

Appellant advances the same argument in support of a reversal of the conspiracy conviction. He contends that nothing more than mere suspicion could be inferred from his presence at the scene and; therefore, that inference was not enough to sustain a guilty verdict on conspiracy. The crime of conspiracy is complete the moment two or more parties agree to perform some unlawful act. An explicit agreement can seldom be proved; nevertheless, that does not preclude a conspiracy conviction. Commonwealth v. Neff, 407 Pa. 1, 179 A.2d 630 (1962); Commonwealth v. Dolfi, 483 Pa. 266, 396 A.2d 635 (1979). The evidence here is more than mere conjecture or surmise. The appellant waited outside while the co-defendant robbed the victim and then took advantage of the restraint placed on Mrs. Koch by his gun-wielding partner by demanding the balance of cash. We find that a conspiratorial agreement can be reasonably deduced from these facts.

According to the appellant, the commission of several trial errors at both trials warrant the granting of a new trial. First, he maintains that it was error to refuse the appellant’s request that prospective jurors be asked where they resided. Secondly, he argues that error occurred when the trial judge refused to instruct the jury that a witness may be impeached by a prior inconsistent statement. Finally, it allegedly was error to refuse to instruct the jury that identification testimony must be viewed with caution where it is impeached or contradicted.

To conduct a voir dire on place of residence was unnecessary and improper. It was the mandatory practice to select prospective jurors from Philadelphia County; consequently, it was reasonable to assume that the entire panel resided in that county. Moreover, the judge asked the jurors whether they had any prejudice, bias or hostility for the appellant or people of his race. We agree with the Commonwealth that the appellant was trying to engage in a fishing expedition for facts for utilizing his peremptory challenges more, effectively. Voir dire is not conducted for that purpose. Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967).

We will not grant a new trial because of the trial judge’s refusal to instruct the jury that a witness may be impeached by a prior inconsistent statement. Unlike Commonwealth v. Kramer, 474 Pa. 341, 378 A.2d 824 (1977), the opinion cited by the appellant, the witness here made no prior inconsistent statements.

Appellant finally alleges that it was trial error at his second trial (robbery of Mr. Leon) to refuse to include a cautionary instruction since Mr. Leon had expressed doubt on prior occasions as to the true identification of the appellant. Appellant also asserts that the identification was tainted because Mr. Leon could not recall the appearance of the presiding judge, the public defender and district attorney at the preliminary hearing, yet he could recall the appellant’s appearance. Also, it was allegedly tainted by the significant lapse of time between the incident and the courtroom identification.

We find no evidence that the identification given to the police shortly following the incident was vague or inconsistent with the in-court identification. Secondly, we are not convinced that the failure to remember the appearance of peripherally involved individuals lessens the magnitude of the identification of the appellant. Mr. Leon knew that mannerisms and appearance of those individuals were not pertinent. We find no facts that mandate a cautionary instruction on identification testimony.

The appellant proceeds to cite numerous errors committed by trial counsel at both trials, several will be addressed here. If the course, which counsel is accused of failing to pursue had some reasonable basis, then he cannot be found ineffective. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). An attorney cannot be deemed ineffective for refusing to act on frivolous matters. Commonwealth v. Nero, 250 Pa.Super. 17, 378 A.2d 430 (1977).

Trial counsel for the defense was allegedly ineffective for failing to request a cautionary instruction or a mistrial when Mrs. Koch referred to photographs shown to her by the police. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972) settled the law on the issue of the propriety of a witness’ reference to police photographs:

The suggestion that any reference to a defendant’s photograph is so prejudicial that an inflexible rule of reversal must apply is explicitly rejected. We hold that after the reference to a photograph the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity. A mere passing inference to photographs from which a reasonable inference of prior criminal activity cannot properly be drawn does not invalidate the proceedings since there has been no prejudice as a result of the reference .... Id., 448 Pa. 181, 292 A.2d at 375.

The Allen, supra, decision found that the use of such photographs was prejudicial because they predisposed the juror’s minds to find the defendant guilty. The photographs in Allen, supra, were used by the prosecution on five separate occasions on direct examination, whereas the photographs here were used only when Mrs. Koch testified. Such infrequent use, then, excludes this case from the law of Allen, supra. Furthermore, we find that any use of the photographs at trial was inconsequential because Mrs. Koch had identified the appellant at the scene and later at the time of trial. Commonwealth v. Jackson, 263 Pa.Super. 183, 397 A.2d 807 (1979).

References made by the District Attorney and the Court before the jury concerning the appellant’s failure to testify at the first trial were, according to the appellant, violations of constitutional safeguards and his trial counsel, therefore, was ineffective for not objecting at trial. The mere mention of the defendant’s decision not to testify or present evidence on his own behalf does not constitute error; the remark must go further by implying that the defendant has a duty to testify. Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). The remarks made by the trial judge and district attorney neither explicitly nor implicitly stated that the appellant had a duty to testify or present evidence on his own behalf.

Appellant maintains next that his trial counsel at the first trial was ineffective for failing to object to the court’s instruction which discussed repealed law and which supposedly led the jury to an understanding that appellant’s mere presence at the scene of the crime was enough to find him vicariously liable for the acts of his co-defendant. We do agree that the trial judge relied upon repealed law when he referred to principals of the first and second degree; however, that was a misnomer that had no adverse effect on the trial’s outcome. That misnomer did not impair the remaining portion of the instruction which accurately described the degree of involvement necessary before finding one vicariously liable for the criminal acts of another. We do not agree that the court instructed the jury that mere presence at the scene is sufficient for a guilty verdict; the appellant himself admits that a particular portion of the instruction refers to one who “aids and abets in the commission” as well as one who is present at the scene. The court proceeded to define an aider and abettor as an “active partner in the intent”. These instructions satisfy the requirement that something more than mere presence and conjecture is needed before finding one guilty under the theory of vicarious liability.

The appellant raises the issue of whether trial counsel at the second trial was ineffective for failing to file post verdict motions for the trial judge’s refusal to grant a one-day continuance in order to secure the presence of a defense witness. A kindred issue is whether trial counsel was ineffective for not interviewing a certain defense witness in time for trial. Yielding to the principals advanced by Maroney, supra, and Nero, supra, we find that trial counsel’s failure to secure the defense witness had a reasonable basis, and his filing of post trial motions because the court refused to grant a continuance would have been frivolous and fruitless. Appellant does not propose any reasonable basis for believing that the co-defendant’s testimony would aid the appellant. Where there is no reason to believe that the uncalled witness’ testimony could benefit the defendant, a new trial is inappropriate despite the fact that trial counsel had not interviewed such a witness. Commonwealth v. Barren, 273 Pa.Super. 492, 417 A.2d 1156 (1980). Furthermore, trial counsel had a reasonable basis for not interviewing the co-defendant because there appears to be no evidence that trial counsel was informed prior to trial that the co-defendant could offer exculpatory testimony.

We reverse the guilty verdict on the possession of a prohibited offensive weapon; we affirm in all other respects.


author: CAVANAUGH, Judge:

text:
    443 A.2d 1148
    INDUSTRIAL VALLEY BANK AND TRUST COMPANY, v. David W. GLOSSBRENNER and Janice H. Glossbrenner, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed April 2, 1982.
    Petition for Allowance of Appeal Denied Sept. 14, 1982.

      Samuel A. Litzenberger, Quakertown, for appellants.
    John D. Trainer, Doylestown, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

Appellants David and Janice Glossbrenner contend that the lower court erred in refusing to strike a confessed judgment entered against them. We agree and therefore reverse.

On January 29, 1978, appellee Industrial Valley Bank and Trust Company confessed judgment against appellants in the amount of $26,500.00. The judgment was entered on a “suretyship agreement” containing a valid confession of judgment clause. By the terms of that contract, which was dated June 19, 1972, appellants agreed to become surety to appellee “for the prompt payment at maturity of all liabilities of [Greensleeves Corp.] to [appellee], now existing or hereafter arising.” A judgment note in the amount of $26,500, executed by appellant David Glossbrenner as president of Greensleeves Corp., was filed with the suretyship agreement at the time judgment was entered. The judgment note was dated February 20, 1974.

Appellants filed a petition to strike or open the judgment on October 10, 1978. They voluntarily abandoned their petition to open judgment and proceeded only on the peti-. tion to strike. Following oral argument, the trial court entered an order denying the motion to strike the judgment. Appellants filed an appeal to this court.

Pennsylvania Rule of Civil Procedure No. 2951 provides for two separate methods of confessing judgment. Under Rule 2951(a), the prothonotary may enter judgment by confession “without the agency of an attorney and without the filing of a complaint, declaration or confession, for the amount which may appear to be due from the face of the instrument.” (emphasis added). Rule 2951(b) requires that a complaint be filed to commence proceedings. This method replaces the amicable action under prior practice. The complaint procedure of Rule 2951(b) “must be followed if the amount due cannot be ascertained from the face of the instrument.” Van Arkel & Moss Properties, Inc. v. Kendor, Ltd., 276 Pa.Super. 547, 551, 419 A.2d 593, 595 (1980).

Our appellate courts have frequently discussed the distinction between the two different procedures for confessing judgment and have consistently held that entry of judgment by a prothonotary is improper, and that the complaint procedure must be followed, in any case in which a determination of the amount due requires consideration of any matter outside the instrument itself. Evans v. Blimpie Base, Inc., 284 Pa.Super. 256, 425 A.2d 801 (1981); Van Arkel & Moss Properties v. Kendor, Ltd., 276 Pa.Super. 547, 419 A.2d 593 (1980); Lenson v. Sandler, 430 Pa. 193, 241 A.2d 66 (1968); R. S. Noonan, Inc. v. Hoff, 350 Pa. 295, 38 A.2d 53 (1944).

No complaint was filed by appellee in this case. Rather, judgment was confessed on the suretyship agreement itself and was entered by the prothonotary pursuant to Rule 2951(a). The suretyship agreement does not set forth any means for calculating or ascertaining the amount due from the face of the instrument. In order to ascertain the amount due the prothonotary had to refer to a judgment note signed twenty months after the suretyship agreement. Merely filing the two documents together at the time judgment was confessed does not satisfy the requirement of Rule 2951(a) that the amount due be ascertainable “from the face of the instrument.” The prothonotary clearly considered matter outside the instrument in entering judgment in this case.

The lower court based its conclusion that the suretyship agreement and demand note should be considered together in determining the validity of the confessed judgment on a statement made by this court in Florida Crab House, Inc. v. Hake, 259 Pa.Super. 230, 393 A.2d 801 (1978). That case involved a confessed judgment entered by a prothonotary on a note which referred to the payee in the following language: “according to the terms of contract here attached.” The contract was not, however, attached. We stated, “As incongruous as it appears, the named payee on the judgment note is ‘according to the terms of contract here attached,’ which contract, unfortunately for appellee, was neither attached nor recorded with the note.” 259 Pa.Super. at 233, 393 A.2d at 803. The trial court found this statement to be authority for the conclusion that it is permissible to refer to an accompanying document in order to support a section 2951(a) judgment. Of course, it is important to understand that in Florida Crab the document referred to was not in fact attached and therefore the confession of judgment was stricken. We agree, however, that implicitly the case may be said to indicate that if the contemporaneous contract referred to was attached to or recorded with the note, the result might have been otherwise.

Here, however, there was no such internal integration between the suretyship agreement on which the judgment was taken and the subsequent note, and indeed there could not have been such a unified instrument since the note relied upon to supply the amount of the judgment did not even come into existence until twenty months after the date of the suretyship contract.

As stated above, Rule 2951(b) provides the procedure for confessing judgment in cases where the determination of the amount due is based on matters outside the instrument. Under that section, the action must be commenced by filing a complaint. Had appellee followed this procedure in the instant case the confessed judgment would be valid. Unfortunately, it did not.

In view of the foregoing discussion, and mindful of the rule that “any doubt as to the validity of [confessed judgments] must be resolved against the party entering the judgments,” Scott Factors, Inc. v. Hartley, 425 Pa. 290, 293, 228 A.2d 887, 888 (1967), we must conclude that the lower court erred in refusing to strike the judgment confessed against appellants.

Order reversed and judgment directed to be stricken from the record.

      . Rule 2951 was amended December 14, 1979, effective February 1, 1980, applicable to all proceedings to enter judgment by confession commenced on or after the effective date. The amendments do not change existing law.

      . The judgment note filed simultaneously with the suretyship agreement could not have been the basis for a confessed judgment against appellants because it was signed by David Glossbrenner only in his capacity as president of Greensleeves Corporation and it was not signed by Janice Glossbrenner at all.

      . We note that when § 2951(a) was amended, effective February 1, 1980, the wording was changed to provide that judgment could be entered “for the amount which may appear to be due from the instrument.” (emphasis added). The explanatory note to that section states that:
      the original language referred to “the face of the instrument” to determine the amount due and the interest computable. But sometimes the necessary data may be on the reverse side of the instrument or on an annex, technically not “the face”. Accordingly, these words are deleted. The essential facts now will be derived from the whole of “the instrument.”
      The result we reach in this case would be the same under the new rule. The judgment note can not be considered an “annex” to the suretyship agreement. It is an entirely separate document.

      . Our conclusion that the judgment must be stricken makes it unnecessary for us to address appellants’ contention that the “suretyship agreement” signed by them is actually a contract of guaranty rather than an agreement of surety. We note, however, that our review of the record supports the lower court’s conclusion that it was an agreement of surety. -


text:
    443 A.2d 1150
    Gemma CRISANTE, Appellant, v. J. H. BEERS, INC.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed April 2, 1982.
    Petition for Allowance of Appeal Denied July 14, 1982.

      Dwight L. Danser, Easton, for appellant.
    William Murphy, Easton, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT,. JJ.
   CAVANAUGH, Judge:

In this appeal we are asked to determine whether the two year statute of limitations applicable to actions for “trespass of real property” prevents the pursuance of the instant action alleging negligent infliction of damages to real property.

Appellant, Gemma Crisante, instituted this action in trespass on November 23, 1979. She alleged in her complaint that in September 1974, appellee J. H. Beers, Inc., a contractor for the Pennsylvania Department of Transportation, performed construction work on the state highway in front of her home. On September 25,1974, appellee allegedly failed to use reasonable and proper care in the operation of its heavy road equipment, including graders and trucks. Its negligent operation of the equipment caused excessive vibrations which resulted in damage to appellant’s residence. Appellant did not allege any intentional conduct on the part of appellee.

Appellee, in its answer, raised the defense of the statute of limitations as New Matter. Following appellant’s reply to the New Matter, appellee moved for judgment on the pleadings. The trial court granted the motion, dismissed appellant’s complaint and entered judgment for appellee. The court based its decision on a finding that the cause of action was barred by a two year statute of limitations.

The Pennsylvania Legislature completely reorganized the statutes of limitations for all causes of action when it enacted the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, as amended by Act of April 28, 1978, P.L. 202, No. 53. Under prior law, appellant had six years in which to bring her cause of action. 12 P.S. § 31. Appellee contends, however, that the Judicial Code reduces the limitation period from six to two years. The relevant provision, according to appellee, is the one found in 42 Pa.C.S.A. § 5524(4), pertaining to actions “for waste or trespass of real property.”

Appellant argues that the legislature did not intend Section 5524(4) to apply to causes of action alleging only negligence. In appellant’s view, the instant action is instead governed by the “catch-all” provision of 42 Pa.C.S.A. § 5527(6). There, the legislature specified a six year statute of limitations for “[a]ny civil action or proceeding which is neither subject to another limitation specified in this sub-chapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation).”

No specific provision other than section 5524(4) is arguably applicable to this cause of action. Our decision therefore depends on whether the phrase “trespass of real property” must be interpreted narrowly as applicable only to actions which allege an intentional intrusion upon the land of another or whether it is applicable to any tortious act causing damage to real property alleged in an action brought in trespass. For the following reasons we adopt the latter position and therefore conclude that section 5524(4) governs causes of action alleging negligent infliction of damage to real property.

Appellant would have us limit the new two year statute of limitations to cases alleging an intentional intrusion on the land of another. The concept of trespass, however, is not so limited. By definition it includes the “doing of [an] unlawful act or of [a] lawful act in [an] unlawful manner to [the] injury of another’s person or property,” and “comprehends not only forcible wrongs, but also acts the consequences of which make them tortious.” Black’s Law Dictionary (5th ed. 1979) (emphasis added). The negligence appellant alleges, i.e., appellee’s use of its heavy equipment in such a manner as to cause damage to her real property, is within this definition because it is the doing of a “lawful act in [an] unlawful manner.”

When actions for negligently inflicted injuries to property were first recognized at common law, they were classified under the common law writ of “trespass on the case,” or simply “case”. A writ of “trespass” was at that time associated with intentional torts. However, Pennsylvania long ago abolished procedural distinctions between actions in trespass and those in trespass on the case, and made all such torts actionable in “trespass.” 12 P.S. § 2. It would certainly seem regressive for us to now conclude that the legislature intended to create a distinction between limitation periods applicable to intentional and negligent acts causing damage to real property when it enacted the Judicial Code.

We believe that a broad reading of section 5524(4) in fact comports with the intent of the drafters of the Judicial Code. The Pennsylvania Bar Association Judicial Code Explanation, which serves as a preface to the Judicial Code, notes that under section 5524:

the periods applicable to conversion of or injury to personal property and waste or trespass to real property are reduced from six to two years to conform to the modern principle that claims based on conduct, and hence heavily relying on unwritten evidence, should have relatively short statutes of limitations, so as to bring them to trial (after allowance for pre-trial delays) before memories have faded. The two-year statute is made the general statute for tort claims (libel, slander and invasion of privacy with one-year periods of limitation constitute the principal exceptions).

42 Pa.C.S.A. xvi-xvii (Purdon 1981) (emphasis added). Certainly a claim of negligence is based on conduct and thus the policy reasons underlying the reduction of the period of limitations apply to claims of negligence as forcefully as to claims based on intentional acts.

The General Assembly used the Judicial Code “as a vehicle to rationalize and simplify the statutes of limitation.” A reading of the various statutes of limitations in the Judicial Code indicates that the drafters, in keeping with this purpose, established a single period of limitation for related actions whenever possible. The Judicial Code clearly reduced the limitation period for actions alleging intentional or negligent infliction of damages to personal property from six years to two years. It would be inconsistent to reduce the limitation period for intentional, but not negligent, infliction of damages to real property. Our conclusion that section 5524(4) is applicable to appellant’s cause of action is in keeping with the purpose of “rationalizing and simplifying” the statutes of limitations.

Appellant next argues that even if we find her cause of action to be within section 5524(4), it should not be applied retroactively to bar her claim. We disagree.

The rules of statutory construction provide that whenever a period of limitation begins to run on a cause of action before a new statute reducing the limitation period applicable to the cause of action is enacted, the time which has already run shall be deemed a part of the time prescribed by the new limitation. 1 Pa.C.S.A. § 1975. Underlying this statute is the assumption that a cause of action is governed by the limitation period in effect at the time the complaint is filed. There is no constitutional objection to retroactive application of such a statute since it is procedural, not substantive. Upper Montgomery Joint Authority v. Yerk, 1 Pa.Commw. 269, 274 A.2d 212 (1971).

We have, however, held that “while the legislature may shorten the time in which suits to enforce existing rights of action may be commenced, a reasonable time must be given by the new law for the commencement of suit before the bar takes effect.” Ferki v. Frantz’s Transfer Co., 152 Pa.Super. 267, 269, 31 A.2d 586, 587-88 (1943). Hence the Pennsylvania Legislature included in the Judicial Code a “savings clause” when it enacted the new statute of limitations provisions. This clause provides as follows:

“(a) Any civil action or proceeding:
“(1) the time heretofore limited by statute for the commencement of which is reduced by any provision of this act; and
“(2) which is not fully barred by statute on the day prior to the effective date of this act;
may be commenced within one year after the effective date of this act, or within the period heretofore limited by statute, whichever is less, notwithstanding any provisions of Subchapter B of Chapter 55 of Title 42 (relating to “civil actions and proceedings) or any other provision of this act providing a shorter limitation

Act of July 9, 1976, P.L. 586, No. 142, Section 25(a). See note following 42 Pa.C.S.A. § 5524. (emphasis added).

Because this section stated that actions “may be commenced” instead of “shall be commenced,” appellant reasons that “the provision does not require that an action be brought within a lesser period than the old statute of limitations, but, permits it.” Appellant’s brief, p. 14. The flaw in appellant’s logic is obvious. The permissive language of the provision merely reflects its purpose, which is to allow the commencement of suits otherwise barred by a new limitation reducing the former period of limitation. In other words, actions otherwise barred may be commenced during the one-year grace period.

The grace period ended on June 27, 1979, one year after the effective date of the Judicial Code. Appellant did not institute suit until November of 1979. Thus her action is barred by the statute of limitations regardless of the now expired grace period.

Finally, appellant contends that if we hold that the two year statute applies so as to bar her cause of action, then the statute as interpreted is unconstitutionally vague under the due process clause of the Pennsylvania and United States Constitutions.

In Tsarnas v. Jones & Laughlin Steel Corporation, 262 Pa.Super. 417, 421, 396 A.2d 1241, 1243 (1978), aff’d, 488 Pa. 513, 412 A.2d 1094 (1980), we summarized the principles to be considered in addressing a claim of unconstitutionality as follows:

“Any discussion of the constitutionality of lawfully-enacted legislation must commence with the restatement of the principle of law which creates a ‘presumption’ in favor of constitutionality. ‘An Act of Assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution.’ ... ‘[T]he burden rests heavily upon the party seeking to upset legislative action on constitutional grounds; all doubt is to be resolved in favor of sustaining the legislation.’ ...” (Emphasis in original; citations and footnote omitted.) Singer v. Sheppard, 464 Pa. 387, 393, 346 A.2d 897, 900 (1975).

Furthermore, ambiguity alone will not support a conclusion of unconstitutionality for reasons of vagueness. Singer v. Sheppard, 33 Pa.Commw. 276, 283, 381 A.2d 1007, 1010 (1978).

Applying these standards to section 5524(4), and in light of the foregoing discussion, we can not hold that it is so ambiguous as to violate due process.

Appellant’s cause of action is barred by the two year statute of limitations contained in 42 Pa.C.S.A. § 5524(4) and, accordingly, the trial court properly dismissed the action as untimely filed.

Judgment affirmed.

      . See Prosser, Handbook of the Law of Torts § 7 (4th Ed. 1971). See also the discussion in Kedra v. City of Philadelphia, 454 F.Supp. 652 (E.D.Pa.1978) at 669, n.15.

      . This section has been superceded by 42 Pa.C.S.A. § 1722(a)(1).

      . The P.B.A. Judicial Code explanation was prepared by the P.B.A. Special Committee on the Judicial Code. It was this committee, in conjunction with a similar committee of the Pennsylvania Conference of State Trial Judges, which drafted the Judicial Code bills.

      . P.B.A. Judicial Code Explanation, 42 Pa.C.S.A. xv (Purdon, 1981).

      . As stated above, the two year period of limitations is made the general statute for tort claims. This represents an increase from one to two years for wrongful death actions and a reduction from six to two years for actions for conversion of or injury to personal property and waste or trespass to real property. The four year limitation under § 5525 is made applicable to all basic contract actions, some of which were previously governed by a six year period of limitation. See P.B.A. Judicial Code Explanation, 42 Pa.C.S.A. xvi-xviii (Purdon, 1981).

      . 42 Pa.C.S.A. § 5524(3).


author: CAVANAUGH, Judge: LIPEZ, Judge,

text:
    443 A.2d 1154
    COMMERCIAL BANKING CORPORATION, v. Joel W. CULP, Wilma B. Culp and Robert D. Culp, Appellant, v. INDUSTRIAL VALLEY BANK AND TRUST COMPANY.
    Superior Court of Pennsylvania.
    Argued May 6, 1981.
    Filed April 2, 1982.

      Joel W. Culp, appellant, in pro. per.
    Wilma B. Culp, appellant, in pro. per.
    Robert D. Culp, appellant, in pro. per.
    Arnold R. Lieberman, Philadelphia, for appellee, Commercial Banking Corp.
    Peter McGonigle, Philadelphia, for appellee, Indus. Valley Bank and Trust Co.
    Before SPAETH, CAVANAUGH and LIPEZ, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order denying appellants’ petition for nunc pro tunc joinder of an additional party. Such an order is a final order and appealable pursuant to Rule 341(a), Pennsylvania Rules of Appellate Procedure.

Our inquiry must begin with a review of the facts and the pleadings. On June 14, 1974, Joel W. Culp and his wife, Wilma B. Culp, appellants herein, placed a mortgage on their property at 1015 Pecan Drive, Lansdale, Pennsylvania, with Industrial Valley Bank (hereinafter “IVB”), appellee herein. IVB immediately transferred the mortgage to Commercial Bank Corporation (hereinafter “CBC”).

In 1976 the Culps conveyed the mortgaged premises to their son, Robert D. Culp, also an appellant herein. In November 1977, Joel and Wilma Culp defaulted upon the CBC mortgage and on November 13, 1978, CBC filed a complaint in foreclosure against all appellants. Robert Culp filed preliminary objections attacking the validity of service of the CBC complaint. Thereafter Joel and Wilma Culp filed a writ to join IYB as an additional defendant. Appellants had the writ reinstated under Pa.R.Civil P. 1010 and, on March 6, 1979, sought to serve Kenneth A. Carobus, Esquire, attorney for IVB. Mr. Carobus refused to accept service.

On November 20,1979, Judge Avrigian granted appellants leave to file a petition to join an additional defendant nunc pro tunc. Appellants filed such a petition but on July 10, 1980, the court below denied the petition to join an additional defendant and appellants now appeal.

In light of our disposition of this appeal, we need not consider appellants’ argument that the third party defendant, IVB, had submitted to the jurisdiction of the court below by filing interrogatories to the merits of the litigation. See O’Barto v. Glossers, 228 Pa.Super. 201, 324 A.2d 474 (1974).

Pa.R.Civil P. 2253 provides as follows:

Neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.

The leading case interpreting this rule, particularly as it applies to the instant action, is Graham v. Greater Latrobe School District, 436 Pa. 440, 260 A.2d 731 (1970). In that case, our Supreme Court held that Pa.R.Civil P. 2253 means that “. . . the praecipe or complaint must be filed within one of the following three periods: (1) within sixty days after service on the defendant of the plaintiff’s complaint; (2) within sixty days after service on the defendant of an amendment of the plaintiff’s complaint; (3) within such greater time as may be allowed by the court upon cause shown.” Id., 436 Pa. at 443, 260 A.2d at 732. The thrust of the Graham decision, however, was to carve out an addition to the above-quoted interpretation, a “fourth” time period, when, an original defendant had filed preliminary objections to the original complaint. In that event, the sixty day period does not begin to run until the objections are ruled upon. Id., 436 Pa. at 444, 260 A.2d at 733.

Appellants argue that since appellant Robert Culp filed preliminary objections attacking, inter alia, the validity of service of the original complaint, Graham should apply to its case. This would avoid the requirement, admittedly not met, that the praecipe for writ of summons against appellees be filed within sixty days of the service of the original complaint. We agree.

In Graham, the preliminary objections (based on sovereign immunity), if succesful, would be a complete bar to plaintiff’s claim and eliminate any need to join an additional defendant. The decision in Graham recognizes that it would “make no sense to require a defendant to proceed as if the action will continue when he has before the court objections which, if successful, -will terminate the litigation.” (Emphasis added) Id., 436 Pa. at 444, 260 A.2d at 733.

Appellant Robert Culp was named as a defendant in the original complaint by CBC pursuant to Pa.R.Civil P. Rule 1144(a)(3). As the real owner of the property subject to this mortgage foreclosure, Robert Culp was a necessary party to this action. A person is a necessary and indispensable party only when his rights are so connected with the claims of the litigants that no decree can be made without impairing his rights. E.g. Pocono Pines Corp. v. Pa. Game Commission, 464 Pa. 17, 345 A.2d 709 (1975); Powell v. Shepard, 381 Pa. 405, 113 A.2d 261 (1955). It is clear that the lower court could not have granted relief without impairing the rights of Robert Culp, the real owner of the subject property. We agree, therefore, with the appellant and hold that where defendant files preliminary objections which would terminate the litigation as to a necessary party the theory of Graham applies and the sixty day period for joinder does not begin to run until the objections are ruled upon.

Further, appellants Joel and Wilma Culp filed their petition to join an additional defendant on January 16,1979. Appellants were unable to serve IYB within the thirty days after having the complaint reinstated on February 13, 1979 because Kenneth Carobus, attorney for IVB, refused to accept service of the third party complaint. On December 20, 1979, appellants, including Robert Culp, filed a petition to join an additional defendant after having been granted leave to do so by Judge Avrigian’s order. Such a petition must allege some reasonable justification for the delay. Desiderio v. R. & R. Tire Center, Inc., 242 Pa.Super. 135, 137, 363 A.2d 1197 (1976). Although appellants failed to serve the petition within sixty days of the service of the original complaint, appellants did allege the reasonable justification of Mr. Carobus’ refusal to accept service of the third party complaint as a reasonable justification for the delay. Therefore, the lower court acted improperly in denying the petition of all appellants to join an additional defendant nunc pro tunc.

For the foregoing reasons, the order of the court below is reversed.

LIPEZ, J., files dissenting statement.

LIPEZ, Judge,

dissenting:

I dissent and would affirm for the reasons set forth by Judge Stanziani in his Memorandum and Order dated July 10, 1980 and his Supplemental Opinion dated October 1, 1980.

      . Our court has jurisdiction to entertain this appeal because denying a petition to join an additional defendant is a final order and appealable. See Signal Consumer Discount Co. v. Babuscio, 257 Pa.Super. 101, 390 A.2d 266 (1978); the Act of July 31, 1970, P.L. 673, No. 223, Art. Ill, § 302: 17 P.S. § 211.302 (repealed); now 42 Pa.C.S.A. § 742.

      . Robert Culp was joined as a defendant under Pa.R.Civil P. Rule 1144(a)(3) which provides: “The plaintiff shall name as defendants ... (3) the real owner of the property....”

      . The appellants’ pleadings between March 23, 1979 and December 20, 1979 confuse the paths chosen by Robert and his parents, Joel and Wilma Culp. Robert, an attorney, chose to sign pleadings to which he was not a party.

      . Joinder is permitted “as of course” if within sixty days of the service of the original complaint.