author: CIRILLO, President Judge:

text:
    566 A.2d 897
    COMMONWEALTH of Pennsylvania, Appellant, v. Lavonia DAVIDSON.
    Superior Court of Pennsylvania.
    Argued Aug. 24, 1989.
    Filed Nov. 30, 1989.

      Karen L. Grigsby, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Owen Larrabee, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and KELLY and CERCONE, JJ.
   CIRILLO, President Judge:

This is an appeal from an order entered by the Court of Common Pleas of Philadelphia County suppressing evidence taken from the purse of the appellee, Lavonia Davidson. For the following reasons, we reverse that order.

Police Officer Alvin Ventour stopped Davidson, her boyfriend Herbert Reid, and her young son for a traffic violation at 52nd and Arch Streets in Philadelphia. During the stop, Officer Ventour noticed that the pockets of the driver, Reid, were bulging, and that a plastic bag partially protruded from one. Since he was alone when he made the traffic stop, Officer Ventour radioed for backup. He then asked Reid to exit the car, performed a frisk, and determined that the plastic bag he had initially seen contained what he believed to be cocaine. With the assistance of back up units that had responded to his radio call, Officer Ventour arrested Reid. The search incident to that arrest revealed over $3000.00 in cash and numerous plastic bags of white powder on his person.

Pursuant to Officer Ventour’s orders, Davidson had remained in the passenger’s seat of the car during this time. After Reid’s arrest, Officer Joseph Cornell was told to take the car to the police station; Davidson and her son were still in the car. Officer Cornell testified that during the drive to the police station, Davidson asked him whether Reid was being arrested, how long he would be detained, and if she could have the car when they reached the district. After Officer Cornell replied that he did not know, Davidson reached for her handbag. Officer Cornell asked her not to touch the bag, testifying that he felt unsafe having her do so while he drove. She ignored him and reached for her purse again; he then took the purse and placed it between his legs. He testified that it felt “very heavy.”

When Officer Cornell and Davidson reached the police station, Davidson asked if she could leave. Officer Cornell replied that she would have to wait until his supervisor as well as Reid and the other officers involved in the arrest arrived. She then asked to use the bathroom, and requested the return of her handbag. Before returning the handbag to Davidson, Officer Cornell opened the bag to search it. He found a .25 caliber automatic pistol, 113 vials of “crack” cocaine, some cocaine in powder form, and several packages of marijuana. Davidson was then arrested, and charged with possession of a controlled substance, possession of a controlled substance with intent to deliver, and violations of the Uniform Firearms Act.

In an omnibus pretrial motion, Davidson moved for suppression of the evidence seized from her bag. The suppression court granted the motion, finding that Officer Cornell had neither probable cause nor a reasonable basis for the search. The Commonwealth filed this appeal, certifying that suppression of the evidence in question will substantially impair its prosecution of the charges against Davidson. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

In reviewing a suppression order we are bound by the hearing court's findings of fact, unless we determine that those findings are not supported by the record. Commonwealth v. White, 358 Pa.Super. 120, 123, 516 A.2d 1211, 1212 (1986). When the evidence supports the factual findings of the suppression court, we may reverse only if there is an error of law. Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1042 (1986). We may, however, review the legitimacy of the inferences and legal conclusions drawn from those findings of fact. Id. Here, there is no dispute as to facts and thus, we will address only the validity of the inferences and legal conclusions drawn by the suppression court.

The Commonwealth argues that the circumstances of this case gave Officer Cornell reasonable concern for his safety which justified the search of the purse under the principles enunciated by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the Court set forth the parameters for a warrantless search during an investigative stop:

[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger____ And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or .“hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experiences.

Id. at 27, 88 S.Ct. at 1883.

The Pennsylvania Supreme Court has also allowed for investigatory stops and frisks in this Commonwealth. In Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969), based substantially on Terry v. Ohio, supra, the court set the standard for Terry stops and frisks in Pennsylvania:

even if probable cause to arrest is absent, the police officer may still legitimately seize a person ..., and conduct a limited search of the individual’s outer clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officer and others, if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous. (Footnote omitted).

Hicks, 434 Pa. at 158, 253 A.2d at 279 (emphasis original).

To determine whether a search or seizure is reasonable, we must balance the societal interest in law enforcement and in protecting law enforcement officials against the individual’s right to personal security free from arbitrary governmental interference. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). See also Commonwealth v. Rehmeyer, 349 Pa.Super. 176, 182, 502 A.2d 1332, 1335 (1987). Terry achieved this balance by permitting a limited pat down search of an individual’s outer clothing for something that felt like a weapon. Terry, 392 U.S. at 30-31, 88 S.Ct. at 1884-1885; Rehmeyer, 349 Pa.Super. at 187, 502 A.2d at 1336. Specifically, such a search “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may be characterized as something less than a ‘full’ search, even though it remains a serious intrusion." Terry, 392 U.S. at 26, 88 S.Ct. at 1882. Moreover, “because the sole justification of the search in the present situation is the protection of the police officer and others nearby, ... it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other instruments for the assault of the police officer." Id. at 29, 88 S.Ct. at 1884 (emphasis added).

In the appropriate situations, the scope of Terry stops and frisks has been extended, both in this Commonwealth and in other jurisdictions, to apply to searches of pocketbooks and other bags. In United States v. Barlin, 686 F.2d 81 (2d Cir.1982), the Second Circuit Court of Appeals upheld the validity of a protective search of a pocketbook. There, federal agents searched an apartment pursuant to a valid search warrant. The agents had already found a shotgun, “modest amounts of ... pure heroin, two packages of cocaine, a triple beam balance, packaging material, shotgun shells and handgun ammunition” when three defendants entered. Id. at 86. The agents immediately arrested and frisked one defendant pursuant to an arrest warrant; the frisk yielded $56,600 in cash. The other two defendants were told to stand against the wall and the agents proceeded to pat them down. Sometime later the agents noticed one defendant’s pocketbook laying five to twenty feet from her. Id. They searched it and found money and drugs.

The Second Circuit held the search of the purse was justified as a valid investigatory measure under Terry v. Ohio, supra. The court noted that the three defendants “arrived ... against a background that comported with ‘the violent nature of narcotics crime.’ ” Barlin, 686 F.2d at 87 (quoting United States v. Vasquez, 634 F.2d 41, 43 (2d Cir.1980)), and that the owner of the purse entered with two people whose involvement in narcotics transactions seemed apparent. Barlin, 686 F.2d at 87. Consequently, the court determined that it would have been unwise for the agents to have given the purse back and released its owner or to have left the purse unsearched, in light of its conclusion that a pocketbook “is the most likely place for a woman to conceal a weapon.” Id. Moreover, “the mere passage of time [between the defendant’s entrance and the discovery of the purse] did not immunize the pocketbook from search.” Id. See also United States v. Morales, 549 F.Supp. 217 (S.D.N.Y.1982) (police may form a reasonable suspicion that a person is armed and dangerous based on suspected drug activity thereby justifying a search of the duffel bag because simply removing it from suspect’s possession reduces the danger but does not eliminate it).

This court allowed the limited search of a bag to discover weapons in Commonwealth v. Capers, 340 Pa.Super. 136, 489 A.2d 879 (1985). There, the police stopped the defendant because he matched the description of an armed assailant broadcast over the police radio. During the investigatory stop of the defendant, the police searched both the defendant’s person and the plastic bag he carried. This court held that both searches were justified under Terry, supra. The police knew the perpetrator of the crimes had used a knife, thereby justifying the weapons search of his person. Further, “[b]ecause the plastic bag was easily within Capers[’] reach, it was also proper to examine it for a weapon.” Capers, 340 Pa.Super. at 141, 489 A.2d at 881.

Under the standards of Terry, as explained and applied in Barlin and Capers, we have no difficulty in concluding that the circumstances of this case gave Officer Cornell a reasonable suspicion that Davidson was armed and dangerous, a suspicion which justified both his appropriation of the purse during the drive to the police station and the subsequent search of it.

The significant amount of money and white powder found on Reid would lead a reasonable policeman with eleven years experience to believe that Reid was involved in drug trafficking and to suspect that Davidson, his companion, could also be involved. Thus, the officer’s subsequent actions should “be measured against a background that includes ‘the violent nature of narcotics crime.’ ” Morales, 549 F.Supp. at 223 (quoting Barlin, 686 F.2d at 86.) “[T]o ‘substantial dealers in narcotics,’ firearms are as much ‘tools of the trade’ as are most commonly recognized articles of narcotics paraphernalia.” Morales, 549 F.Supp. at 221 (quoting United States v. Wiener, 534 F.2d 15, 18 (2d Cir.1976)). Moreover, it is well known that the distribution of narcotics is often punctuated by acts of violence involving various lethal weapons. When the search of Reid produced no weapons, other than a pocket knife, it would be reasonable for the police to believe that some sort of weapon was nearby.

Upon their arrival at the police station, Officer Cornell and Davidson exited the car, and Davidson requested the return of her pocketbook. Once Davidson made this request, Officer Cornell had to confirm or negate his reasonable suspicion that the pocketbook contained a weapon; if he allowed Davidson access to it, he would no longer be assured of his safety. Since Officer Cornell had already held the pocketbook in his hands and acquired all the information he would discover in a pat down of it, a pat down of the pocketbook at this point would have been useless. See Bonds v. Georgia, 188 Ga.App. 135, 137, 372 S.E.2d 448, 451 (1988) (“Merely patting down a purse, even if it was pliable, would not [reveal a weapon to the touch] as the nature of the objects felt would not necessarily identify them as non-weapons”). At that moment, based on all the information available to him, the circumstances of Reid’s arrest, Davidson’s constant attempts to get to the pocketbook, its unusual weight, and the uselessness of a pat down, only a search of the purse could guarantee the officer’s safety.

The search conducted by Officer Cornell did not take the form of a “general exploratory search for whatever evidence of criminal activity” might be found; Officer Cornell did not go on a fishing expedition. Morales, 549 F.Supp. at 224. ,He opened the bag for one purpose: to determine whether it contained a weapon that would place both his own safety and that of others in jeopardy. This search was the logical extension of the Terry stop pat down. Officer Cornell formed a reasonable suspicion that Davidson was armed and dangerous plus he had been asked to return the pocketbook which would make her dangerous. Then and only then did he conduct a limited search of the pocketbook.

We conclude that under these circumstances, Officer Cornell’s actions were proper and therefore the gun is admissible as the product of a valid protective search under Terry.

We now turn to the admissibility of the drugs found in Davidson’s pocketbook. We hold that the drugs found in the pocketbook were in the plain view of Officer Cornell and consequently are also admissible.

“For the plain view doctrine to apply, three elements must be satisfied: 1) the initial intrusion must be lawful; 2) observation of the item must be inadvertent; and 3) there must be probable cause to link the observed property with criminal activity.” Commonwealth v. Pine, 370 Pa.Super. 410, 419, 536 A.2d 811, 816 (1988). See also Commonwealth v. Harris, 479 Pa. 131, 387 A.2d 869 (1978).

The initial intrusion into the pocketbook constituted a valid protective search under Terry v. Ohio, supra, and thus was lawful. Pine, 370 Pa.Super. at 419, 536 A.2d at 816; Commonwealth v. Kendrick, 340 Pa.Super. 563, 570, 490 A.2d 923, 926 (1985). Officer Cornell observed the drugs inadvertently while he searched the pocketbook to ascertain whether it contained any weapons, not to discover drugs. Finally, probable cause existed to link the drugs to criminal activity because by definition, the mere possession of drugs is a criminal activity. Since all of the factors are present, the drugs found in plain view are admissible evidence at trial.

The suppression order is hereby reversed, and the case remanded for trial.

      . The testimony at the suppression hearing does not indicate whether Davidson thought she was required to go along.

      . Of the 402 homicides in Philadelphia in 1988, nearly 100 were known to be drug related; of the 335 homicides in 1987, at least 77 were drug related. See Boubion “City's Murder Rate on Record Race,” Philadelphia Daily News, at 11 (March 20, 1989); Samuel, "Three Weekend Homicides Bring Philadelphia Total to 108,” Philadelphia Inquirer, at 7B (March 20, 1989). The Third Circuit Court of Appeals, along with many other federal courts, have even taken judicial notice that "drug dealers are likely to be armed and dangerous.” See, e.g., United States v. Adams, 759 F.2d 1099, 1109 (3rd Cir.1985).
      Moreover, a recent panel of this court acknowledged the danger and possibility of violence inherent in possession and distribution of narcotics.
      Although the suspicion of narcotics possession and distribution is not universally recognized as a circumstance which, standing alone, gives rise to an inference of dangerousness, we believe that the better view is that it does____
      We hold, therefore, even though the officers who detained [the defendant] had no information that he was armed or that he had a past history of violence, they acted reasonably when conducting a protective pat-down search for weapons in light of the fact that they had a reasonable suspicion that Williams was presently engaged in narcotics distribution. To hold otherwise would be an invitation to violence in what is always a potentially explosive situation. Williams v. Commonwealth, 4 Va.App. 53, [67], 354 S.E.2d 79, 87 (1987).

        Commonwealth v. Rodriquez, 387 Pa.Super. 271, 280-281, 564 A.2d 174, 179 (1989).


source: Caselaw Access Project

author: TAMILIA, Judge: KELLY, Judge,

license: Public Domain

text:
    566 A.2d 901
    William SAVITSKY, Appellant, v. SHENANDOAH VALLEY PUBLISHING CORP., t/d/b/a Evening Herald of Shenandoah, Mahanoy City and Ashland and William O’Brien; Evening Herald of Shenandoah Mahanoy City, and Ashland and Shenandoah Valley Publishing Co., t/d/b/a Evening Herald of Shenandoah, Mahanoy City and Ashland.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1989.
    Filed Dec. 1, 1989.

      Kimberly D. Borland, Wilkes-Barre, for appellant.
    Elihu A. Greenhouse, Philadelphia, for appellees.
    Before TAMILIA, KELLY and CERCONE, JJ.
   TAMILIA, Judge:

Appellant William Savitsky appeals an Order granting summary judgment to appellees Shenandoah Valley Publishing Corporation publisher of the Shenandoah “Evening Herald” (hereinafter “Evening Herald”), and William O’Brien, former editor of the “Evening Herald”. The underlying libel action instituted by appellant was initiated by writ on March 26, 1982 and a complaint was filed on March 25, 1983 alleging various publications in the “Evening Herald” defamed appellant. Following responsive pleadings and new matter and after discovery, appellees filed a motion for summary judgment which was argued before Judge William Rubright on September 26, 1988. By Order dated and filed December 14, 1988, the court entered summary judgment in favor of appellees, and this appeal followed.

The publications which appellant alleges defamed him are of two types, and their factual underpinnings are as follows.

Appellant was a member of the District 25 International Executive Board of the United Mine Workers of America and was a losing candidate for reelection to that office in an election held June 9, 1981. The June 13, 1981 edition of the “Evening Herald” reported appellant had been ferried around the region to polling places on election day by a coal company helicopter, a report appellant categorically denies and which appellees have never proven.

The second category of publications appellant alleges defamed him concerned references to appellant as a “widow robber” in connection with a union life insurance benefit package negotiated chiefly by appellant. These references occurred in newspaper articles and editorials between January, 1980 and June, 1981.

This Court is not unmindful of the delicate balance required in public figure defamation cases. Free speech is considered such a vital aspect of our constitutional freedoms, it must be given breathing room in the form of protected, uninhibited, robust debate and even erroneous statements if the press is to avoid the self-censorship that is manifestly incompatible with the open exchange of ideas in our society. Therefore,

While we recognize that summary judgment is ‘a proper vehicle’ for disposing of potentially frivolous suits that threaten First Amendment freedoms, we find that summary judgment should be granted only when warranted under Pa.R.C.P. No. 1035, i.e., where the evidence viewed in the light most favorable to the non-moving party, reveals an absence of a genuine issue as to the existence of actual malice....

Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super. 588, 599, 422 A.2d 625, 631 (1980) (citation omitted).

As to appellant’s claim concerning the defamatory nature of the report of his alleged helicopter ride, appellant has framed the question on appeal as follows:

Is there a genuine issue of fact as to whether the [appellees] published the report that the [appellant] union candidate was transported from polling place to polling place by means of a coal company management helicopter in reckless disregard for the truth of [sic] falsity of the report and, therefore, with actual malice toward the [appellant]?

Brief of Appellant at 15.

Defamation and libel decisions occupy a place at the forefront of our modern legal tradition, involving as they do vital issues in the areas of both constitutional and tort law. While those decisions contain exhaustive histories leading to our present legal standards, such analysis is beyond the range of our decision in this case, and so our decision will focus on the prevailing legal standards and applicable historical precedents.

Ordinarily, the initial consideration of a court in a libel action is whether the plaintiff is a public or private figure. In the instant appeal, appellant does not dispute he is a public figure, even if only for a limited purpose, and we are not compelled to discuss the expansion of the New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), actual malice test from public officials to public figures (Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967)) to limited purpose public figures (Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)). Therefore, appellant must prove by clear and convincing evidence Shenandoah published the June 18, 1981 article with actual malice, i.e., with knowledge it was false or with reckless disregard of its truth or falsity. Sullivan, supra. As appellant has made no contention the newspaper or the article’s author, O’Brien, knew the article was false, we will focus our determination of the existence of actual malice on appellees’ reckless disregard of the article’s truth or falsity.

“The term ‘reckless disregard’ cannot be fully encompassed in one infallible definition.” Stickney v. Chester County Communications, Ltd., 361 Pa.Super. 166, 171, 522 A.2d 66, 69 (1987). Moreover, the United States Supreme Court has stated:

[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267 (1968).

However, the Court in St. Amant went on to declare mere good faith assertions by the publisher of his belief the defamatory statements were true will not ensure a favorable verdict where “the publisher’s allegations are so inherently improbable that only a reckless man would put them into circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” Id. at 390 U.S. 732, 88 S.Ct. at 1326, 20 L.Ed.2d at 268.

Viewed in light of these decisions, the facts of the case sub judice lead this Court inexorably to the conclusion the actions of the newspaper and O’Brien exhibited recklessness such as a jury might reasonably find to constitute actual malice.

Testifying at deposition, appellee O’Brien, the author of the helicopter report, stated he took his unnamed informant’s word for the accuracy of the information appellant was airlifted on election day by a coal company helicopter. O’Brien also testified he did not know whether the informant had ever provided him with information in the past, and O’Brien could not recall whether he had asked the informant any other questions about the information supplied. O’Brien further testified he did not call appellant or anyone else to confirm the report, although appellant had provided O’Brien with information in the past, O’Brien had always found appellant’s information to be reliable, and O’Brien knew how to contact appellant. Such careless journalistic procedure might still be afforded constitutional protection in a situation where the report was a “hot news” item and the need for immediate publication precluded attempts at verification of all questionable information. See Curran v. Philadelphia Newspapers, Inc., 376 Pa.Super. 508, 546 A.2d 639 (1988). However, four days elapsed between the date of appellant’s alleged helicopter campaigning and publication of the article in which it is mentioned, although the “Evening Herald” was published daily in the interim. In addition, appellees did not attempt to contact any person who may have been at a polling place visited by appellant to verify the report. Clearly, the “press of time” is inapplicable in this situation.

We find it highly unlikely despite the deposition assertions by O’Brien and Joseph Wallace, publisher of the newspaper, that they did not attach any particular import to the article they were publishing, or the significance it might have to readers of the newspaper. Detached by time and distance from the article, the impact of a report that an incumbent union official campaigning for reelection was transported from polling place to polling place by a coal company helicopter is still not lost on us. Nonetheless, Wallace testified as a son of a coal miner and a long-time spectator to union-management affairs in that part of the state, he had no opinion as to whether the alleged conduct of appellant speaks well or ill of him as a candidate for union office. O’Brien testified although he considered the report newsworthy, he did not attach any importance to it. O’Brien testified he felt the newsworthiness of the report sprang solely from the fact appellant was using modern means of transportation for campaigning, and not any implicit support for appellant by coal mine operators. In an area dominated by the anthracite coal industry and punctuated by rancorous union-management relations, the disingenuousness of these remarks approaches the incredible.

For these reasons, we find the newspaper’s allegations so inherently improbable appellees have come close to “willfully blinding” themselves to the falsity of the report. DiSalle v. P.G. Publishing Co., 375 Pa.Super. 510, 520, 544 A.2d 1345, 1350 (1988). We also follow the test set forth in Frisk v. News Co., 361 Pa.Super. 536, 523 A.2d 347 (1986), to find appellees’ June 13, 1981 article marked by clear departures from acceptable journalistic procedures: (1) the utter lack of adequate pre-publication investigation; (2) the use of wholly speculative accusatory inferences; and (3) the failure to utilize or employ effective editorial review. Id., 361 Pa.Superior Ct. at 544, 523 A.2d at 351. Therefore, as we find “there appears a genuine issue of fact from which a jury could reasonably find actual malice with convincing clarity,” Brophy, supra, 281 Pa.Super. at 595, 422 A.2d at 632, we reverse the Order of the trial court granting summary judgment on the issue of the June 13, 1981 “Evening Herald” article. As a result, we will not discuss this appeal in terms of appellant’s suggested application of the Shield Law, 42 Pa.C.S. § 5942(a).

Appellant next argues the court erred in holding the references to appellant as a “widow robber” were not capable of defamatory meaning. The court must analyze the alleged defamatory statements in context, Baker v. Lafayette College, 516 Pa. 291, 532 A.2d 399 (1987), to determine “the effect the article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate.” Corabi v. Curtis Publishing Co., 441 Pa. 432, 447, 273 A.2d 899, 907 (1971), citing Boyer v. Pitt Publishing Co., 324 Pa. 154, 157, 188 A. 203, 204 (1936). We agree with the trial court’s analysis of the context and effect of the newspaper references to appellant as a “widow robber” and cite with approval a portion of its Opinion:

The term “widow robber” first appeared in an article published on January 7, 1980. The article consisted almost entirely of a statement submitted to the Defendants by the members of Shenandoah Local 1443 of the UMWA. In that statement, the local expressed its sentiments about the Plaintiff’s role in amending the insurance provisions of the 1978 Anthracite Wage Agreement. The Plaintiff was labelled a “widow robber” by the local because he participated in amending the insurance provisions of the agreement to provide that, after a month off the job due to illness or injury, a miner would no longer be eligible for the insurance benefits. There was no time limit specified in the original agreement. The local interpreted the amendment as a restriction on the eligibility for benefits originally provided by the agreement. They labelled the plaintiff as a “widow robber” because, according to their interpretation, if a miner was injured on the job and died after having been off the job for more than a month, his widow would receive no life insurance benefits.
In subsequent editorials, O’Brien made use of the phrase “widow robber” when discussing the Plaintiff. In each article, he pointed out the origin of the phrase. The Plaintiff argues that the use of the phrase is libelous. The Defendants argue that the use of the phrase was no more than rhetorical hyperbole and, therefore, cannot form the basis for a libel action.
Based upon the holdings in Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970), and Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974), we find that the use of the phrase “widow robber” was merely “rhetorical hyperbole, a vigorous epithet” used by those who considered the Plaintiff’s role in amending the 1978 Anthracite Wage Agreement as extremely unreasonable. It is very difficult to believe that any reader of the newspaper would have understood the Defendants to be charging the Plaintiff with the crime of robbery. The use of the phrase was not libel.

Slip Op., Rubright, J., 12/14/88, pp. 5-6.

We therefore affirm the Order granting summary judgment on this issue.

Order of summary judgment affirmed as to the “widow robber” issue and reversed and remanded for trial on the helicopter conveyance issue.

Jurisdiction relinquished.

KELLY, Judge,

concurring:

I concur in the result. The characterization of appellant as a “widow robber” was a derogatory rhetorical hyperbole; it was also an opinion based upon disclosed facts. As such it was not actionable. See Dougherty v. Boyertown Times, 377 Pa.Super. 462, 476-80, 547 A.2d 778, 785-86 (1988). While I do not find a “hot news” exception embraced in Curran v. Philadelphia Newspapers, 376 Pa.Super. 508, 546 A.2d 639 (1988). I likewise agree with the majority that whether or not such an exception might be recognized in an appropriate case it could not reasonably apply here. I further agree wholeheartedly that there appears a genuine issue of fact from which a jury could reasonably find actual malice with regard to the patently defamatory helicopter report.

      . The assertions by the reporter and the publisher that they did not understand the import of a report that an incumbent mining union official was being transported by coal company helicopter for campaign appearance is specious. It does nothing to advance their legal position, though it does much to undermine their general credibility.


author: TAMILIA, Judge: JOHNSON, Judge, POPOVICH, Judge,

text:
    566 A.2d 1197
    COMMONWEALTH of Pennsylvania v. Richard JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Argued June 5, 1989.
    Filed Oct. 16, 1989.

      Peter Rosalsky, Asst. Public Defender, Philadelphia, for appellant.
    Deborah H. Fleisher, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, McEWEN, OLSZEWSKI, TAMILIA, POPOVICH, JOHNSON and MELINSON, JJ.
   TAMILIA, Judge:

Appellant, Richard Johnson, was convicted by a jury of rape, indecent assault and corrupting the morals of a minor in connection with an incident in which he forced the ten-year old complainant to engage in sexual intercourse. He was sentenced to the mandatory five to ten year term of incarceration for rape. No sentence was imposed on the remaining offenses. Johnson now appeals the judgment of sentence and argues he should have been permitted to introduce evidence of a prior nonconsensual sexual assault against the victim. This evidence was disallowed by the trial court because of the Rape Shield Law, 18 Pa.C.S. § 3104. The panel originally assigned this case certified it to the Court en banc for resolution of the issue of whether the Rape Shield Law bars the admission of evidence of the victim’s prior nonconsensual sexual conduct.

Nicole S. was ten years old when she was raped by appellant, then nineteen years old. On March 22, 1987, during the afternoon hours, Nicole was playing with Tavona Johnson, appellant’s niece, on the front porch of Tavona’s home when appellant came from the house and asked the victim to meet him in a park across the street. After meeting her, appellant took Nicole into a secluded area behind some bushes, laid her down on the grass, pulled down both of their pants and forced Nicole to engage in sexual intercourse.

A twelve year old neighbor, Harneen Crawley, watched Nicole enter the park pursued by appellant. Harneen followed them and observed the rape in progress. He shouted, “I got you”, at which point appellant pulled up his pants. Harneen slapped the victim on the back of her head and threatened to tell her mother. Harneen and appellant argued, appellant threatened Harneen and the victim began to cry. She then left the park and returned to the house where she again began to play with Tavona.

While the girls were talking, Harneen called the victim to where he and another boy, Donyell Gambrell, were standing and Nicole confirmed to Donyell the account of the rape described to him by Harneen. Donyell told his mother what had occurred, who then informed the victim’s mother, who immediately told Nicole to return home. When the victim arrived home and was asked about the incident, she screamed and cried, “He made me do it, he made me do it.” The police were called and took Nicole to the hospital where a medical examination revealed the victim’s genital area was red and swollen and her vaginal orifice was enlarged. Expert medical testimony confirmed that the condition was consistent with sexual penetration and rape.

On appeal, appellant argues he should have been allowed to introduce evidence that the victim, some time in the past, had told Tavona Johnson that a year or two prior to the instant assault, Harneen had sexually molested her. Appellant argues this evidence was admissible to impeach Hameen’s eyewitness testimony in support of his exculpatory theory which blames Harneen for the assault, providing an explanation for the physical evidence that the victim had recent sexual contact. The statement would bolster the theory that Harneen was a biased witness, who had intimidated Nicole to blame appellant. At an in camera hearing, the testimony elicited from Tavona was such that the touching would have occurred one to three years earlier. Appellant argues the excluded testimony should have been admitted because it was related to prior nonconsensual sexual contact and was therefore not barred within the meaning of the Rape Shield Law. He claims the trial court misapplied the Rape Shield Law in that his defense required introduction of testimony that Harneen had some time earlier assaulted the victim and urges the Shield Law applies only to “volitional” sexual conduct and that “assaultive” sexual conduct does not trigger application of the Law.

While this issue is new to the Court en banc, it has previously been determined in panel decisions that assaultive sexual activity is covered by the Rape Shield Law, Commonwealth v. Troy, 381 Pa.Super. 326, 553 A.2d 992 (1989), and Commonwealth v. Coia, 342 Pa.Super. 358, 492 A.2d 1159 (1985). In both cases, attempts were made to introduce testimony concerning previous sexual assaults, and this Court affirmed the trial judge’s denial to do so under the Shield Law. While the Shield Law was enacted primarily to prevent establishment of an unwarranted nexus between the victims reputation for chastity and her veracity, it is equally applicable because prior sexual conduct is irrelevant to a subsequent assault. There is no reason to believe the legislature intended to except nonconsensual sexual conduct from this bar. While the primary reason has to do with lack of relevancy, there is also a persistent belief among some people that a woman or girl would not be assaulted unless she provoked the assault by acting promiscuously or deliberately placed herself in a situation where an assault could be anticipated. This is particularly so when the parties are known to each other. We have not yet completely disabused the public mind of the perception that an assault victim is somehow to blame for the assault, and this is even more so with child victims who, due to naivete or poor supervision, find themselves unprotected and dangerously vulnerable.

Relevancy may arise in the context of the proximity of the prior sexual assault or volitional intercourse to the incident which is basis for the charge, if it was so close in time as to be exculpatory to the defendant and plausibly accounts for the trauma exhibited by the victim. Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983). Appellant in his original brief would attempt to bring the facts of this case within the purview of Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985), which relied on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (juvenile Act which prohibits admission of a witnesses prior juvenile record must give way to a defendant’s sixth amendment right to confrontation of a witness when bias is an issue) which held the Rape Shield Law must give way to a defendant’s sixth amendment right to confrontation of a witness, when it is necessary to probe into the possible bias in the testimony of a crucial witness. In Black the trial court, on remand, was directed to hold a hearing to determine whether the evidence offered would support the claim of bias before a new trial was granted. Appellant, in his supplemental brief, relies on State of Washington v. Peterson, 35 Wash.App. 481, 667 P.2d 645 (1983), and State of Washington v. Carver, 37 Wash.App. 122, 678 P.2d 842 (1984), for the proposition that abuse of the victim by other persons is not misconduct which would reflect on the victim and, therefore, is not excludable under the Shield Law.

Summarizing each of these arguments, we perceive at least three categories of factual situations against which the Shield Law may be tested as to its application:

1. Those factual situations in which the victim has engaged in prior consensual sexual activity unrelated to the present charge;

2. Those factual situations in which the victim has been previously sexually assaulted or abused by persons unconnected with the present charge; and

3. Those factual situations in which the victim has been sexually assaulted previously by a witness in the present case.

To aid in this analysis, we set out the Shield Law as follows: § 3104. Evidence of victim’s sexual conduct

. (a) General rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings. — A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).
1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6, 1973. As amended 1976, May 18, P.L. 120, No. 53, § 1, effective in 30 days.

Under the Rape Shield Law, testimony in the first category of cases is clearly and without question excluded. The past sexual conduct of the victim with the defendant is admissible only when consent of the alleged victim is at issue. No exception is made under the Shield Law to prior nonconsensual sexual conduct and the only reason an exception is made to admission of testimony of prior contact between the victim and the defendant where consent of the victim is in issue, is the recognition that previously friendly or intimate relationships which turn acrimonious could be the basis for unwarranted charges of assault or rape, or persons once in an intimate relationship might misread each others intentions or signals leading to a questionable assault charge. Such cases have become topics for talk shows and popular print under the heading of “date rape”. This clearly raises a jury question which cannot be resolved without proof of the prior intimate consensual conduct. Such is not the case with prior nonconsensual sexual conduct. Where the proposed testimony is lacking in bias, hostility or motive to seek retribution against defendant by the victim, it has been held to be inadmissible. Commonwealth v. Simmons, 355 Pa.Super. 326, 513 A.2d 453 (1986). A defendant would be foolish to propose such testimony and the prosecutor would be charged with prosecutorial misconduct for proposing it as it would implicate the defendant in other crimes which could lead a jury to conclude he was more likely to have committed the present assault because of proof of the former. This is true whether the victim was the present one or a third party.

The second category of cases is that in which the victim has previously been assaulted, with no nexus existing between the prior assault and the present which would be exculpatory to the defendant. It has been held that such testimony is likewise excluded. Troy, supra. Most recently the Pennsylvania Supreme Court in Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989), reversed the Superior Court and held such evidence is irrelevant and therefore inadmissible. In that case, appellant attempted to show ineffectiveness of counsel for failing to interview and call exculpatory witnesses who he believed were responsible for sexual assaults on his daughter. In the face of evidence which was more than sufficient to convict appellant, evidence that other persons might also have had sexual contact with the four year old victim, which would not have proved exculpatory of the defendant, was properly refused as being discretionary with the trial court as finder of fact. The Supreme Court never considered' application of the Shield Law to that case but made its determination on the basis of relevancy. We can, therefore, cite authority for excluding such testimony both under the Shield Law and under ordinary rules of evidence.

Thus despite the holdings in Peterson and Carver, which are Washington cases, independent of the Shield Law, Pennsylvania requires that the offered testimony be relevant.

Finally, we come to the third category which concerns allegations of a prior assault against the victim by a witness who is testifying to the present assault. This class of case must be measured under the exceptions proposed by Black, supra. Clearly the test is not whether the evidence is excludable from the limitations imposed by the Shield Law because it was assaultive rather than consensual, as we have reasoned above. The only basis for setting aside the prohibition against admission of such evidence is the potential bias of the witness, because of the nexus between the prior sexual activity and the testimony to be presented, which, if established, would be exculpatory of defendant. This implicates the defendant’s right of confrontation and if it would be exculpatory, must be admitted. To determine its admissibility, the Court must be persuaded by its probative value that testimony offered against the defendant was biased and would not simply inform the jury of a prior assault on the victim. The court must determine, in the face of the Commonwealth’s evidence, and such offers of proof by the defendant that prior assaultive conduct on the victim was not only relevant but formed the basis for the biased testimony of a witness. Each case must be determined under its own fact situation and as in any evidentiary ruling, the trial court’s decision will not be set aside, absent an abuse of discretion. Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978); Commonwealth v. Reynolds, 256 Pa.Super. 259, 389 A.2d 1113 (1978); also see Durst, supra.

A careful review of the record establishes the following basis upon which the trial court determined not to admit the testimony.

The Commonwealth presented evidence that appellant sexually assaulted the victim Nicole, an eyewitness reported the assault immediately afterwards to a friend, who passed on the information to his mother who in turn informed the victim’s mother. Nicole’s mother called her into the house, and after questioning, Nicole confirmed that she had been assaulted. Immediately thereafter the child was taken to the hospital, examined and sexual penetration was confirmed.

Nicole’s statement was consistent, with only immaterial variations, throughout the several times she was required to give it. Her statement was identical in most respects to that of the eyewitness. The sole inconsistency had to do with whether Harneen hit her on the head, as asserted by Nicole and the appellant, which was minimized by Harneen who stated he pushed her. Other physical evidence corroborated this assault as Nicole’s hair was standing out and had grass and leaves in it as reported by several witnesses.

Appellant testified that he saw Nicole right outside the park crying, and upon his inquiry, she said Harneen had been messing with her. He went into the park and to prevent her from following, he ran. One-half hour later, after completing his exercise, he was coming from the park and saw Harneen and Nicole together and again she was crying. He stated he saw Harneen strike her once on the back of the head at which time he told them to leave the park and go their separate ways which they did. He then caught a streetcar to his place of employment. He acknowledged he did not observe anything between them resembling sexual contact nor did her complaint about Harneen have to do with sexual activity.

It is appellant’s contention that Harneen sexually assaulted Nicole, and to keep from being blamed, Harneen circulated the story about appellant being the assailant. In the face of the overwhelming evidence of his involvement, he sought to introduce testimony by Tavona that Nicole told her she did not like Harneen because “he brought her in the alley and touched her in a private part and hurt it.” (T.T. Vol. Ill at 427.) This statement was made when Tavona was six or seven — she was nine at the time she testified, which means the statement would have been made one to two years before the incident (the trial was almost one year after the incident). Tavona was unable to say what the private part was or when the touching took place. It is important to note that Tavona is the appellant’s niece, living in the same house, and was not permitted to have any contact with Nicole after the incident.

The statement was denied by Nicole who also denied any sexual contact with Harneen. He also emphatically denied any sexual contact with Nicole. Nicole did state Harneen always bullied her but she was not fearful of him. Testimony was also received that Nicole was picked on by other children because she was small and somewhat retarded mentally. With this testimony before the trial judge and the proffered testimony of Hameen’s alleged touching coming from the niece of the accused, after being denied by both Harneen and Nicole, its probative value was very slight. Appellant’s theory that Harneen was shifting the blame to him and had intimidated Nicole is belied by the fact that Nicole willingly testified to the bullying and beatings by Harneen while denying any sexual contact with him. Yet she testified of sexual contacts with appellant, an older, bigger and presumably more threatening person. The apparent reason Nicole exhibited fear and concern about the incident was more evidently related to the fact that in going into the park with appellant, she had disobeyed her mother by leaving the front of Tavona’s house, and for this reason she did not want Harneen to tell her mother. This rational fear was graphically demonstrated by the testimony of Kathleen Gambrell which described Nicole’s mother reprimanding her angrily about leaving the house before comforting Nicole or trying to determine what happened or whether or not she was injured (T.T. Vol. II, 6/7/88, p. 239). These facts properly lead to the conclusion that Harneen did not sexually assault Nicole in the present or past, she was not so intimidated by him as to blame appellant for Hameen’s assault, and Harneen was not testifying from bias so as to shift the blame for the sexual assault to appellant.

The weighing by the trial judge properly balanced the weight in favor of denying admission of the testimony as it would have been improperly prejudicial to the Commonwealth and had no exculpatory weight for defendant. Here, appellant utilized an alternative means of attacking Hameen’s credibility and testing his bias by his cross-examination of both Nicole and Harneen about any prior sexual involvement as well as Nicole’s feelings about Harneen. Tavona’s hearsay testimony of a remote statement allegedly made by Tavona would simply have distracted the jury.

In summation, we hold that the Rape Shield Law is a bar to admission of testimony of prior sexual conduct involving a victim, whether it is consensual or the result of nonconsensual or assaultive behavior, unless it has probative value which is exculpatory to the defendant. Under such circumstances, the trial court in an in camera hearing will carefully weigh the evidence, and in his/her discretion make a determination as to the admissibility of that evidence. In doing so, the court will determine whether its probative value outweighs its prejudicial effect. In the absence of an an abuse of discretion, that decision will stand on appeal. We find there was no abuse of discretion in the rulings or proceedings by the able trial judge, Frederica Massiah-Jackson.

Judgment of sentence affirmed.

Concurring opinion by JOHNSON, J., in which MELINSON, J. joins.

Dissenting statement by POPOVICH, J.

JOHNSON, Judge,

concurring.

I agree that the decision of the trial court, wherein the court refused to admit the hearsay testimony of the victim’s friend, must be affirmed. However, my reasons are different from the reasoning set forth by the Majority; hence, this Concurring Opinion.

In my understanding, the Rape Shield Law, 18 Pa.C.S. § 3104, is only applicable when examining “the alleged victim’s past sexual conduct.” Therefore, unless the victim can be said to have engaged in conduct, herself (or himself), one cannot look to the Rape Shield Law in determining the admissibility of the particular evidence. In the case before us, I do not consider the alleged conduct of Harneen Crawley — “he brought her in the alley and touched her in a private part and hurt it” — to be within the realm of “the alleged victim’s past sexual conduct”. The testimony at issue only involves what Harneen Crawley is alleged to have done, that is to say, Harneen Crawley’s conduct, and in no way relates to any conduct of the alleged victim, Nicole.

The Rape Shield Law uses the same phrase, and only one phrase, throughout its body: the alleged victim’s past sexual conduct. It provides as follows:

§ 3104. Evidence of victim’s sexual conduct
(a) General rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings. — A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial____

18 Pa.C.S. § 3104 (emphasis added).

The Rape Shield Law focuses on the behavior — the conduct of the victim. In my view, where the behavior of the victim is not involved, the question of the admissibility of evidence falls outside the scope of the Rape Shield Law. In the case now before this court, inasmuch as it is the behavior of Harneen Crawley which is sought to be placed before the trier of fact rather than the behavior of the victim, Nicole, we cannot look to the Rape Shield Law— which deals only with the victim’s behavior — in deciding whether the testimony should have been admitted.

Because I believe the scope of the Rape Shield Law is, by its very terms, somewhat narrow in scope, I believe our decisions in Commonwealth v. Coia, 342 Pa.Super. 358, 492 A.2d 1159 (1985) and Commonwealth v. Troy, 381 Pa.Super. 326, 553 A.2d 992 (1989) should be re-examined, neither of which dealt expressly with past behavior of the victim yet considered the applicability of the Rape Shield Law.

Even though the trial court, and the Majority of this court, employ what I believe to be an erroneous standard of review, this court may nevertheless affirm the trial court, applying simple principles of relevancy. While I agree with Appellant that prior non-consensual sexual conduct is simply beyond the reach of the Rape Shield Law, I reject Appellant’s contention that the statement concerning Harneen Crawley’s conduct is admissible on any grounds.

Evidence is relevant if it logically or reasonably tends to prove or disprove a material fact in issue, or to make such a fact more or less probable, or if it affords the basis for a logical or reasonable inference or presumption as to the existence of a material fact in issue. Commonwealth v. Haight, 332 Pa.Super. 269, 481 A.2d 357 (1987), affirmed 514 Pa. 438, 525 A.2d 1199 (1987). I do not see how the testimony of Tavona as to what the victim, Nicole, may have said one to two years before the incident wherein Richard Johnson is alleged to have raped her is relevant on any material fact in issue.

First, appellant contends that the statement attributed to Nicole should have been admitted as a prior inconsistent statement. I agree with the Commonwealth that whether the victim had been assaulted some two years before the incident at issue is, at best, a collateral matter, upon which the victim may not be contradicted. Commonwealth v. Fisher, 447 Pa. 405, 290 A.2d 262 (1972); Commonwealth v. Kesting, 274 Pa.Super. 79, 417 A.2d 1262 (1979). Appellant also contends that Harneen, and not appellant, had assaulted Nicole and therefore, the testimony that Nicole had, at some unknown time, told Tavona that Harneen had, at some unknown earlier time, touched Nicole’s “private part” is relevant to prove appellant’s lack of guilt. In my view, the unreliable statement made at least two years before the trial would neither tend to disprove or tend to prove any material fact in issue regarding the assault upon Nicole which occurred on March 22, 1987.

I also agree with the Commonwealth that the admission of the statement as substantive evidence would have been error, even after Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), since the prior out-of court statement by Nicole would have had none of the normal indicia of reliability.

Without any reference to the Rape Shield Law, I would find the preferred testimony of Tavona to be both irrelevant and inadmissible as falling outside any recognized exception to the hearsay rule. Because the behavior and conduct of the victim, Nicole, is not at issue in the evidence under review, I would decline to discuss the Rape Shield Law or, in the alternative, find it inapplicable on these facts.

Like the Majority, I find no abuse of discretion by the very able trial judge, the Honorable Frederica MassiahJackson. The judgment of sentence should be affirmed.

MELINSON, J., joins the concurring opinion by JOHNSON, J.

POPOVICH, Judge,

dissenting:

I respectfully dissent from the opinion of the majority because I am convinced that the Rape Shield Law, 18 Pa.C.S.A. § 3104, does not serve as a bar to evidence of prior sexual assaults against a victim.

The Rape Shield Law, 18 Pa.C.S.A. § 3104(a), specifically states: “Evidence of specific instances of the alleged victim’s past sexual conduct, ... shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.” (Emphasis added).

I, unlike the majority, do not believe that a prior sexual assault qualifies as “past sexual conduct.” Inherent in “conduct” is a volitional component which is obviously absent from an “assault.” Black’s Law Dictionary, 268 (5th ed., 1979), defines “conduct” as “Personal behavior; deportment; mode of action; any positive or negative act.” It further notes the Model Penal Code definition of “conduct”: “An action or omission and its accompanying state of mind or where relevant, a series of acts and omissions. Model Penal Code, § 1.13.”

As the majority states, “the Shield Law was enacted primarily to prevent establishment of an unwarranted nexus between the victim’s reputation for chastity and her veracity.” Maj. Op. at 1198. The fact that a victim was sexually assaulted previously does not, in any manner, reflect upon her “chastity or veracity.” Accordingly, I do not believe that the rule applies when a defendant seeks to introduce evidence of a prior sexual assault upon the alleged victim. Compare Miller v. State, — Nev. —, 779 P.2d 87 (1989) (prior false accusations of sexual abuse or sexual assault by complaining witnesses do not constitute “previous sexual conduct” for rape shield purposes). See also Clinebell v. Com., 235 Va. 319, 368 S.E.2d 263, 264 (1988).

Rather than apply the Rape Shield Law, I am convinced that the question of whether evidence of a past sexual assault of an alleged victim is admissible is controlled by the rules of evidence. Simply put, the evidence proffered by the defendant must be relevant. Evidence is relevant if it logically tends to prove or disprove a material fact at issue, or if it tends to make such a fact more or less probable, or if it affords the basis for a reasonable inference or presumption as to the existence of a material fact in issue. Commonwealth v. Haight, 332 Pa.Super. 269, 481 A.2d 357 (1987), affirmed 514 Pa. 438, 525 A.2d 1199 (1987).

Instantly, I believe the evidence offered by the defendant is relevant to this inquiry. Appellant’s sole defense was that Harneen Crawley committed the sexual assault. Harneen Crawley was known to have “bullied” the victim in the past. And Tavona Johnson testified, in camera, that the victim told her two years prior that Harneen “brought her in the alley and touched her in a private part and it hurt.” This evidence certainly tends to support appellant’s defense. I am convinced that whether Harneen forced Nichole to accuse appellant rather than himself is a question for the jury to determine, one which affects the substantive evidence presented and the credibility of Harneen.

Accordingly, I find that the trial court erred in excluding the evidence in question, and I would grant a new trial.

      . 42 Pa.C.S.A. § 9718. Sentences for offenses against infant persons.

      . This balancing determination between probative value and unfair prejudice should be made by the trial court at an in camera hearing similar to that outlined in 18 Pa.C.S. § 3104(b). At this hearing, the trial court should determine the following as a matter of record to be preserved for appellate review: (1) whether the proposed evidence is relevant to show bias or motive or to attack credibility; (2) whether the probative value of the evidence outweighs its prejudicial effect; and (3) whether there are alternative means of proving bias or motive or to challenge credibility.

        Black, supra, 337 Pa.Superior Ct. at 557-58, 487 A.2d at 401 (footnote omitted).


author: TAMILIA, Judge:

text:
    566 A.2d 1205
    COMMONWEALTH of Pennsylvania v. AH THANK LEE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1989.
    Filed Oct. 23, 1989.
    Reargument Denied Dec. 21, 1989.

      Peter C. Bowers, Philadelphia, for appellant.
    Kathy Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   TAMILIA, Judge:

Appellant was convicted by a jury on June 30, 1988 of second degree murder, criminal conspiracy, robbery and possessing an instrument of crime. Immediately after trial appellant was sentenced to the mandatory term of life imprisonment for the murder, but sentencing on the other convictions was deferred pending the disposition of post-trial motions. Post-trial motions were timely filed and a hearing was scheduled for September 8, 1988. At the end of August, however, appellant was mistakenly sent back to New York, on the Philadelphia district attorney’s authorization, to continue serving a sentence which preexisted his trial in the instant case. The hearing on post-trial motions was continued to allow the district attorney an opportunity to have appellant returned for the hearing and sentencing. Three hearings on the matter were held in New York and appellant, represented by counsel, refused to consent to his return to Pennsylvania (transcripts from October 31, November 4 and November 18, 1988 are included in the case record). Finally, on December 28, 1988, a hearing was held to dispose of the post-trial motions and appellant was sentenced in absentia to five to ten years imprisonment for conspiracy and two and one-half to five years imprisonment for possessing an instrument of crime, all sentences to run consecutively. The robbery conviction merged with the murder for sentencing purposes. A motion for reconsideration was filed and denied and appellant now raises six issues on appeal. The facts are as follows.

Appellant and two others entered the Ho Sai Gai Restaurant in Philadelphia on August 14, 1983 to extort “protection” money from the owner. Apparently, they were members of a New York gang and had collected “dues” from Chinatown restaurants there. The owner refused their demands so they tried to open the cash register. The manager, Jade Wong, was discovered calling police and one of appellant’s co-conspirators shot her in front of two eyewitnesses.

Appellant’s first issue raises the propriety of the trial court refusing a continuance and conducting the post-trial motions hearing and sentencing without appellant being present. Defense counsel had sought a continuance of the hearing because appellant was still in New York, would not return to Philadelphia and counsel was unable to consult with him or contact him in New York. The trial court found appellant had refused his opportunity to be present, thereby waiving his rights, and the hearing could be held without him pursuant to Pa.R.Crim.P. 359(D). We find there was no error in holding the hearing and sentencing appellant in absentia.

The trial court has discretion over a request for continuance and a denial of such a request will not be reversed absent a showing of palpable and manifest abuse of the court’s discretion. Commonwealth v. Mehalic, 382 Pa.Super. 264, 555 A.2d 173 (1989). Although appellate counsel argues he had insufficient time to prepare before argument, we will not reverse a denial of a continuance on the mere allegation that more time to prepare was necessary. Commonwealth v. Brown, 351 Pa.Super. 119, 505 A.2d 295 (1986).

Mere shortness of time in which to prepare does not mandate the granting of a continuance. An appellant must be able to show specifically in what manner he was unable to prepare his defense or how he would have prepared differently had he been given more time. We will not reverse a denial of a motion for continuance in the absence of prejudice. (Citations omitted.)

Id., 351 Pa.Superior Ct. at 125, 505 A.2d at 298.

Appellant’s counsel had ample time to consult with his client from the time appellant was sentenced, June 30, 1988, until the hearing date, December 28, 1988. In fact, when post-trial motions were filed, appellant was still incarcerated in Philadelphia. Although counsel argues he could not contact his client in New York because appellant could receive no phone calls, counsel could have communicated with appellant by letter or through contact with appellant’s New York counsel. The fact that counsel was unaware the hearing would proceed without appellant until seven days prior to December 28th is insufficient reason to reverse the denial of the continuance; counsel should have been prepared for that possibility, knowing his client had refused to appear.

Furthermore, although it is a leading principle of criminal law that after indictment, nothing shall be done in the absence of the defendant, this right can be waived by the defendant’s words or actions. Commonwealth v. Craddock, 370 Pa.Super. 139, 535 A.2d 1189 (1988), affirmed per curiam, 522 Pa. 491, 564 A.2d 151 (1989). Additionally, this right is not inclusive of every step in the proceedings.

The United States Supreme Court has long recognized that a defendant needs to be present at any proceeding that “bears, or may fairly be assumed to bear, a relation, reasonably substantial, to his opportunity to defend.” Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934), quoted in [Commonwealth v. McLaurin, 292 Pa.Super. 392, 396, 437 A.2d 440, 443, (1981).] Therefore, a defendant’s right to be present at all stages of his trial does not extend to all procedural matters in preparation for trial such as preliminary pretrial motions and arguments on matters of law, especially where his absence causes no prejudice, but his presence is required when the testimony of witnesses is being given. Id.

In Interest of Borden, 376 Pa.Super. 468, 472, 546 A.2d 123, 125 (1988).

Appellant may not, on the one hand, refuse to return to Philadelphia for the hearing on his post-trial motions, and on the other, claim his right to be present has been violated. He in essence argues the Commonwealth could have and should have forced him to return because he had a right to be present and they denied his right by transferring him to New York prematurely. We reject this attempt at procedural game-playing and agree with the trial court that appellant is simply trying to frustrate the administration of justice. When appellant refused to return to Pennsylvania he waived any right to be present, and the court had no choice but to proceed without him.

As to appellant’s next four issues, we agree with the trial judge, the Honorable Albert Sabo, and the Commonwealth that these are waived. Slip Op., Sabo, J., 4/19/89, p. 4; Appellee’s brief at p. 15. Although allegations II, III and V were initially properly preserved in post-trial motions (Record at # 23), we find them waived for failure, at the trial court level, to brief them or argue them at the hearing.

The Pennsylvania Supreme Court has made it “abundantly clear” that only issues “which are raised in a post-trial motion in accordance with [Pa.R.Crim.P.] 1123, and briefed or argued before the court hearing the motion, will be considered preserved for appellate review.” Commonwealth v. Manigault, 501 Pa. 506, 509, 462 A.2d 239, 241 (1983) (emphasis added).

Commonwealth v. Reeves, 378 Pa.Super. 29, 39, 548 A.2d 260, 265 (1988) (emphasis in original).

As to issue IV, the trial judge properly found it waived for failure to include it in post-trial motions. Slip Op. at 4; Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Copeland, 381 Pa.Super. 382, 554 A.2d 54 (1989); Pa.R.Crim.P. 1123(a), (c)(3),

Appellant’s final argument is trial court error in sentencing him to consecutive terms of imprisonment for conspiracy and possession of an instrument of crime because both are inchoate crimes arising from the same incident. Appellant’s claim is erroneous because 18 Pa.C.S. § 906, Multiple convictions of inchoate crimes barred, the basis of his argument, as amended and effective prior to appellant’s trial, provides otherwise. Prior to December 11, 1986, section 906 read as follows:

§ 906. Multiple convictions barred
A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.

Sixty days thereafter, however, on February 9, 1987, the new statute became effective. The amended statute specifically lists the inchoate crimes of which multiple convictions are prohibited.

§ 906. Multiple convictions of inchoate crimes barred

A person may not be convicted of more than one of the inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy for conduct designed to commit or to culminate in the commission of the same crime.

Because section 906 now only prohibits multiple convictions of the inchoate crimes of criminal attempt, section 901, criminal solicitation, section 902, and criminal conspiracy, section 903, and does not include possessing instruments of crime, section 907, appellant’s allegation of illegality of sentence is without merit.

Also, appellant blindly argues the court imposed its sentences without using a pre-sentence report. He offers nothing to indicate what might have been included in the report which may have benefitted him nor does he even allege he was prejudiced in any manner because the court did not have a pre-sentence report. Although we have not been supplied with a copy of the sentencing hearing transcript, we believe we can safely assume the trial judge did state his reasons for appellant’s sentence in compliance with Pa.R.Crim.P. 1403 and 1405 since appellant has not alleged otherwise. Although ordering a pre-sentence report is discretionary with the sentencing judge, Pa.R.Crim.P. 1403, in this case the court did order the report but its completion was frustrated when appellant refused to return to Pennsylvania. Under the circumstances, see discussion on Issue I, supra, the court had no choice but to sentence appellant without the benefit of the report. We agree with the trial judge’s summation of the situation.

Considering all of the facts presented, especially defendant’s contradictory statements that he would not voluntarily return to Pennsylvania, but that he would not waive his right to be present, it is our opinion that defendant hoped to somehow frustrate the proceedings in Pennsylvania (N.T. 11-18-88, N.Y. State Court Chemung County, P. 4).
This defendant was represented by counsel in both Philadelphia and the New York Court. He had the relevant law explained to him by the Court in New York and the Chemung County New York District Attorney. This Court is satisfied that defendant, by his words and actions, waived his right to be present. Commonwealth v. Craddox, 370 Pa.Super. 139, 535 A.2d 1189 (1988).
It is also this Court’s opinion that defendant, by making a choice not to be present, forfeits his right to have his claim considered in much the same way that voluntary fugitive status at the time for direct appeal acts as a knowing and understanding waiver of his appellate rights. Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984).
Defendant was offered the opportunity to be present for post-trial motions, to argue post-trial motions, to be present for sentencing and to exercise his right of allocution at that time. He decided that he would not return for any of these proceedings and has given no evidence of an extraordinary circumstance which prevented his appearance.

Having found no error during the trial court proceedings, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 2502.

      . 18 Pa.C.S. § 903.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 907.

      . RULE 359. POST-VERDICT MOTIONS: WHEN TO FILE
      D. When there is oral argument on the post-sentence motion, the defendant need not be present.

        Although appellant argues this rule is applicable only to capital cases, we agree with the trial judge and the appellee and believe it is applicable to all cases in which a mandatory sentence is imposed (here, life imprisonment for second degree murder). We acknowledge the rule is under chapter 350 relating to capital cases but believe 359B would be meaningless were we to apply any other interpretation. We add that disposition under this rule is not crucial to our decision in this case and the result would not change if the rule would be found inapplicable. Additionally, appellant has not cited any authority for the proposition he must be present when post-trial motions are orally argued.

      . II. Where the eyewitness identification testimony of the only Commonwealth witness is highly suspect, did the trial Court err in failing to give a Kloiber charge?
      III. Where two (2) witnesses have heard declarations against interest from one (1) convicted participant in the crime and one (1) alleged participant, did the trial court err in excluding this statement either as an exception to the hearsay rule or on due process grounds?
      IV. Where the Commonwealth engaged in a pattern of impermissible gamesmanship which either hid or distorted evidence, did this conduct violate Brady vs Maryland, [373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ] and principles of due process and fundamental fairness.
      V. Did the trial Court err when it restricted the testimony of New York City Detective Joseph Fasano, who had been involved in investigating this case, where Detective Fasano would have related why he took certain actions in this case favorable to the Defendant?


author: DEL SOLE, Judge.

text:
    566 A.2d 1209
    COMMONWEALTH of Pennsylvania v. William BUTLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 17, 1989.
    Filed Nov. 21, 1989.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before DEL SOLE, MONTEMURO and POPOVICH, JJ.
   DEL SOLE, Judge.

William Butler, appellant, pleaded guilty to burglary, possession of instruments of crime and retail theft. No appeal was filed after his conviction. Almost a year later, Butler filed a pro se petition for post-conviction relief. After counsel was appointed, an amended petition was filed. Butler’s post-conviction petitions were dismissed without a hearing and this appeal followed. Butler raises two issues on appeal which have merit. We reverse the order of the P.C.R.A. court and discharge the appellant.

On October 5, 1985, Butler was charged with retail theft in Allegheny County. On October 20, 1985, he was charged with burglary and possession of instruments of crime, Butler did not appear for a preliminary hearing on the charges of burglary and possession of instruments of crime, and he failed to appear for a formal arraignment on the charge of retail theft. As a result, Butler’s bond was forfeited and a bench warrant was issued for his arrest.

On June 10, 1986, the Pennsylvania Board of Probation and Parole discovered that Butler was detained by officials in South Carolina. Following disposition of criminal proceedings in South Carolina, an extradition hearing was conducted in South Carolina on September 9, 1986. As a result of that hearing, Butler was transported back to Pennsylvania on December 8, 1986.

On April 15, 1987, in response to Butler’s motion to dismiss under Rule 1100, the trial court dismissed the retail theft, burglary and possessing the instruments of crime charges. The Commonwealth filed a Motion for Reconsideration on April 16, 1987 which was granted by the trial court on May 20, 1987.

The two issues raised by Butler are centered on this grant of reconsideration. Butler argues that on May 20, 1987, the trial court no longer had jurisdiction to grant a reconsideration motion and Butler’s counsel was ineffective for not objecting to the trial court’s jurisdiction at trial or on appeal. We agree.

Pennsylvania has adopted the U.S. Supreme Court’s standard of determining ineffective assistance of counsel. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the U.S. Supreme Court announced a two-prong test for ineffectiveness claims: “First, the defendant must show that counsel’s performance was deficient____[and] ... [s]econd, the defendant must show that the deficient performance prejudiced that defense.” 466 U.S. at 687, 104 S.Ct. at 2064 in Commonwealth v. Pierce, 515 Pa. 153, 157-158, 527 A.2d 973, 974-975, (1987). The actions of Butler’s counsel in the present case satisfied both prongs of the Strickland/Pierce test.

The performance of Butler’s counsel was deficient for not objecting to the trial court’s jurisdiction when the court granted the Commonwealth’s motion for reconsideration. The trial court granted the motion on May 20, 1987, thirty-five days after the court had granted Butler’s motion to dismiss. Generally, a trial court’s jurisdiction only extends for thirty days after such an action:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.
42 Pa.C.S.A. § 5505

An order sustaining a motion to, dismiss and discharging a defendant is a final order. Commonwealth v. Andrews, 251 Pa.Super. 162, 380 A.2d 428 (1977). Absent fraud, a trial court lacks jurisdiction to rescind a prior order granting a defendant’s motion to discharge the prosecution if the court did not act within thirty days of the dismissal order. Commonwealth v. Sheppard, 372 Pa.Super. 550, 539 A.2d 1333 (1988). PCRA relief is permitted where it is established that the tribunal lacked jurisdiction. 42 Pa.C. S.A. § 9543(a)(2)(viii). In the case of fraud or other equitable demands, our Supreme Court has allowed trial courts to modify or rescind orders beyond the statutory time limit. Estate of Gasbarini v. Medical Center of Beaver, 487 Pa. 266, 409 A.2d 343 (1979). There are no such extraordinary circumstances in the present case.

The Commonwealth argues that this case is controlled by Commonwealth v. Kern, 294 Pa.Super. 151, 439 A.2d 795 (1982). In Kern, a panel of this court held that an order granting a rule to show cause that was issued within thirty days of an order which dismissed charges against a defendant tolled the time period of 42 Pa.C.S.A. § 5505. In Luckenbaugh v. Shearer, 362 Pa.Super. 9, 523 A.2d 399 (1987), however, this court en banc held that the granting of a “rule to show cause is not a grant of reconsideration and, therefore, did not operate to prevent the thirty-day appeal period from expiring.” 362 Pa.Super. at 13, 523 A.2d 399. We hold today that Luckenbaugh has overruled Kern. This en banc ruling requires the dismissal of the charges against Butler.

An analogous situation with respect to the effect of a court’s scheduling a hearing date without specifically changing its order within thirty days is detailed in the comment to Pa. R.Cr.P. 1410. That rule involving the modification of sentences requires that a motion to modify be filed within ten days after the imposition of sentence. The comment states that there are four actions a trial court can take once a motion has been filed. One of these actions is to “schedule a hearing on the motion.” However, the comment further goes on to state as follows:

Under this rule, the mere filing of a motion for modification of sentence and the court’s scheduling of a hearing on the motion do not effect the running of the thirty day period for filing a timely notice of appeal ...

The practice should be no different where a party is seeking modification of the court’s final order. As has been said in Luckenbaugh, in the comment to Pa.R.Cr.P. 1410 and in numerous other cases where a trial court has thirty days in which to modify or change a final order, it must act within that time. Issuing a rule to show cause or scheduling a hearing will not suffice. If the trial court desires additional time to reexamine its ruling, it must expressly grant reconsideration (Pa.R.A.P. 1701) or vacate its order within thirty days. Thereafter, it may reimpose its order or change the order as the court deems appropriate.

Accordingly, Butler’s counsel should have objected to the trial court’s extended jurisdiction over his client’s case. Because counsel failed to object to the reinstating of the charges against Butler, Butler was sentenced for charges which had actually been dismissed. It is hard to imagine a more prejudicial performance by counsel.

Order of the P.C.R.A. court reversed. Appellant discharged.


author: CAVANAUGH, Judge:

text:
    566 A.2d 1211
    COMMONWEALTH of Pennsylvania, Appellee, v. Joseph D’ALONZO, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1989.
    Filed Nov. 28, 1989.

      Anna M. Durbin, Ardmore, for appellant.
    Norman Gross, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   CAVANAUGH, Judge:

Appellant, Joseph D’Alonzo, appeals from a conviction following a non-jury trial. At trial a demurrer was sustained as to a burglary charge and he was adjudged not guilty of a charge of criminal conspiracy and theft. The court found him guilty of criminal trespass and defiant trespasser. Following denial of post-verdict motions, appellant was given a sentence of probation. His appeal attacks the sufficiency of the evidence to support the guilty verdict. We agree with appellant and reverse.

The Commonwealth called two witnesses. The testimony admitted into evidence when reviewed in a light most favorable to the verdict winning Commonwealth was that at about 9:15 P.M. on Sunday, May 8, 1988, witness Bocella came into contact with appellant D’Alonzo near the Girard School at 18th & Snyder Ave. in Philadelphia. D’Alonzo’s truck was parked nearby. D’Alonzo and a companion were seen to enter into the schoolyard at the Girard School. The companion, Johnny Russo, carried a hammer. Later the appellant was observed together with Russo loading boxes into the truck. The other witness, the building engineer of the Girard School, found evidence of a break-in on Monday morning at a steel gate which was at an ash pit that was used at one time and found evidence of vandalism in the school building. Tools and a hand truck were missing. The steel gate that was ripped open was described as an old-fashioned cellar gate.

Appellant was convicted of the following defined crimes: Criminal Trespass — Buildings and occupied structures. 18 Pa.C.S.A. 3503(a):

Buildings and occupied structures.—
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he:
(i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; or
(ii) breaks into any building or occupied structure or separately secured or occupied portion thereof.

Defiant trespasser — 18 Pa.C.S.A. 3503(b):

Defiant trespasser.—
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
(i) actual communication to the actor; or
(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(iii) fencing or other enclosure manifestly designed to exclude intruders.

It is clear that there is no direct evidence and insufficient circumstantial evidence to support a conviction under 3503(a)(l)(ii) since there is no evidence that D’Alonzo ever entered or broke into the building. Moreover, the fact that he entered the schoolyard with a companion who had a hammer and was later seen loading boxes in a truck is insufficient to support a verdict under 3503(a)(l)(i) which involved entry or surreptitiously remaining in a building or occupied structure or separately secured or occupied portion thereof. It is to be noted that the “boxes” seen being loaded on the truck bear no resemblance to the only described goods missing from the premises (tools and hand truck). See Commonwealth v. Cowher, 276 Pa.Super. 490, 419 A.2d 564 (1980). In short, the evidence here was only that appellant entered a schoolyard and was later seen to be loading boxes on a truck, and the matter is unlike cases where there was compelling evidence of an entry into the building. Compare Commonwealth v. Fox, 345 Pa.Super. 465, 498 A.2d 917 (1985); Commonwealth v. Otto, 343 Pa.Super. 457, 495 A.2d 554 (1985); Commonwealth v. Carpenter, 330 Pa.Super. 382, 479 A.2d 603 (1984).

Similarly, as to the charge of defiant trespasser, there is no evidence that D’Alonzo entered a “place” as to which notice of trespass is given. Under the statute, the notice may be by actual communication, posting, or fencing or enclosure manifestly designed to exclude intruders. The trial court, in support of the denial of post-verdict motions, opined that the yard of the school was a separately secured portion of the occupied structure, the school building, and that the yard was separately secured by a gate. However, it is clear that the schoolyard is not a portion of a building or occupied structure — nor, if we consider the schoolyard as “place” under 3503(b)(l)(iii), was there evidence that appellant entered the place where he had received notice of trespass by communication posting or fence or other enclosure manifestly designed to exclude intruders (there was no evidence that the schoolyard was surrounded by a fence and the broken gate referred to by the trial court was a gate to the cellar and not a gate to the schoolyard as stated by the court). Finally, the court, by adjudicating appellant of crimes based upon entry into the schoolyard impermissibly, went beyond the specific charges which involved entry into a school building.

In apparent recognition of its weak position on the sufficiency of the admitted evidence to support the verdict, the Commonwealth espouses the adoption of a novel theory that we also consider in our sufficiency determination, evidence that was proffered but stricken from the record by the trial judge as inadmissible. The evidence was an alleged statement made by appellant’s companion Russo to the Commonwealth’s first witness which, it is argued, if considered with the other evidence support the guilty verdiet. We know of no recognized theory or authority which would allow us to consider evidence which was excluded by the trial court in making a determination of the sufficiency of the evidence to support a guilty verdict, most importantly to affirm a verdict on the basis of evidence not properly before the court and, of course, not properly considered by the court in rendering its decision. The appellant argues that we may not consider the sufficiency of the evidence on a “reduced record”. However, evidence not admitted at trial is not part of the cognizable trial record. Contrary to appellant’s suggestion, the reduced or diminished record concept has to do with the appropriate remedy after a post-verdict or appellate court had determined that evidence was improperly admitted and holds that in these circumstances the remedy is not judgment n.o.v., but rather a new trial. See Rodgers v. Sun Oil, 189 Pa.Super. 559, 151 A.2d 673 (1959), rev’d. on other grounds, 406 Pa. 277, 177 A.2d 491 (1962); Hughes v. John Hanna & Sons, 187 Pa.Super. 466, 144 A.2d 617 (1958); Finkleston v. Kapnek, 184 Pa.Super. 174, 133 A.2d 310 (1957). The case sub judice is unlike additional authorities cited by the Commonwealth in support of its proposition. See Commonwealth v. Nelson, 320 Pa.Super. 488, 467 A.2d 638 (1985). (Superior Court majority found evidence sufficient without necessity of considering allegedly tainted evidence.) Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984). (Court correctly stated that in passing on sufficiency of evidence all “evidence adduced at trial” is considered [underlining added] citing Commonwealth v. Fields, 317 Pa.Super. 387, 464 A.2d 375 (1983) — “evidence actually received”; Commonwealth v. Gray, 322 Pa.Super. 37, 469 A.2d 169 (1983) —“evidence actually received”).

In passing on the sufficiency of the evidence, we decline to consider evidence which was not admitted into evidence and was therefore not before the trial court.

Judgment of sentence reversed.

      . Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986).