text:
    459 A.2d 795
    COMMONWEALTH of Pennsylvania v. Keith CALLOWAY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1982.
    Filed April 15, 1983.

      Francis M. Socha, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

Appellant, Keith Calloway, was found guilty by a jury of criminal conspiracy. Post-verdict motions were denied. Appellant was then sentenced to a term of five (5) to ten (10) years imprisonment. This appeal followed.

Appellant presents two questions on this appeal:

1. Did the lower court err in admitting into evidence statements made to the police and district attorney by the appellant?

2. Was the evidence insufficient as a matter of law to sustain the verdict?

For ease of discussion we will address the latter contention first. We affirm.

To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept .as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and with weight to be accorded the evidence produced. The fact-finder is free to believe all, part or none of the evidence. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978).

Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).

So viewed, the record shows that in November of 1979, the appellant was hired, as a dishwasher, by Elby’s Big Boy Restaurant located in Lower Paxton Township, Dauphin County. As things turned out, when appellant worked the 4:00 p.m. to 11:00 p.m. shift, he usually received a ride home from the assistant manager, William White. Routinely, before dropping appellant off at his home, and the other employees who also received a ride, Mr. White would deposit the night’s proceeds into a nearby bank. Contrary to company policy which required that the deposits be made with a police escort, Mr. White did not adopt this security measure. Mr: White believed that the police escort was unnecessary because he felt adequately protected when

(c) The Commonwealth did not establish beyond a reasonable doubt that the appellant did not abandon the conspiracy.

Parts (b) and (c) are decided within the context of the general insufficiency question. In any event, appellant's argument that he abandoned the conspiracy based on the facts presented here is merit-less. 18 Pa.C.S.A. § 903(g)(3); See, Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976); Commonwealth v. Laurin, 269 Pa.Super. 368, 409 A.2d 1367 (1979).

Part (a) was not included in appellant’s "Statement of Questions” and is, therefore, waived. See, Commonwealth v. Unger, 494 Pa. 592 n. 1, 432 A.2d 146 n. 1 (1980); Pa.R.A.P. 2116(a). However, this issue also lacks any merit whatsoever. accompanied by the appellant and the other Elby employees. Unbeknownst to Mr. White, the appellant had something else on his mind.

In December of 1979, before Christmas, the appellant met with an associate of his, Kirk Bennett, at Otto’s Atmosphere, a bar located in Harrisburg. The discussion at this meeting evolved into and focused on a plan, conceived by appellant, to rob Elby’s of the night proceeds. Appellant informed Bennett that the assistant manager would leave the restaurant at 11:00 p.m. with the money. Appellant would accompany him. There would be no guards. They agreed that it would be best to have three participants handle the robbery. Appellant would keep the assistant manager calm while walking to the car, Bennett would perform the actual “stick up” and another Elby’s employee, one Jeffrey Ross, would take the money. The discussion ended. Thereafter, Bennett discussed the plan with the other associate, Jeffrey Ross.

In early January of 1980, the appellant and Bennett met at Otto’s a second time. They again went over the robbery and decided to split the money evenly. This time appellant included Ross’ name in the distribution.

On January 11, 1980, Bennett and Ross met at George’s Bar and decided to commit the robbery that night. They did not forewarn the appellant but drove straight to Elby’s and waited. Mr. White, at approximately 11:00 p.m., exited the restaurant along with the appellant and another employee. By this time, both Bennett and Ross had gotten out of their car and were positioned behind a backyard fence. They watched, from a 20 to 30 yard distance, Mr. White walk around the truck to get to the driver’s side. At this point, in a spineless and cold blooded act, Bennett aimed his .22 caliber rifle and fatally shot Mr. White in the back. The appellant, upon hearing the shot, scurried back into the restaurant, while Mr. White staggered to the front of the truck. Ross jumped the fence they were hiding behind, ran to the driver’s side of Mr. White’s truck, but did not find the money. Ross retreated and both he and Bennett took off in their car. The next morning the appellant expressed dissatisfaction to Bennett because of the shooting.

Appellant argues that because he was not aware of the fact that Bennett and Ross were going to execute the robbery on the night of January 11, 1980, he could not be found guilty beyond a reasonable doubt of criminal conspiracy.

Criminal conspiracy is defined as follows:

Definition of conspiracy — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission • he:

agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime: or
agrees to aid such other person or persons in the planning or commission of such crime or an attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903(a)(1) and (2).

A conspiracy is an agreement between two or more parties to do an unlawful act. Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982). It is well settled that a co-conspirator not present at the execution of the crime is not relieved of liability. Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193 (1955). It has been held, on facts very similar to the instant case, that:

Where the existence of a conspiracy is established, the law imposes upon a conspirator full responsibility for the natural and probable consequences of acts committed by his fellow conspirator or conspirators if such acts are done in pursuance of the common design or purpose of the conspiracy. Such responsibility attaches even though such conspirator was not physically present when the acts were committed by his fellow conspirator or conspirators and extends even to a homicide which is a contingency of the natural and probable execution of the conspiracy, even though such homicide is not specifically contemplated by the parties. (Commonwealth v. Spardute, 278 Pa. 37, 122 A. 161)

Commonwealth v. Thomas, 410 Pa. 160, 165, 189 A.2d 255, 258 (1963).

In Commonwealth v. Thomas, supra, the appellant was convicted of conspiracy and second degree murder. The facts introduced by the Commonwealth in that case sought to substantiate the following scenario for the conspiracy:

The theory of the Commonwealth was that Thomas, a deputy sheriff of Dade County, Miami, Florida, became acquainted with Mrs. Lulubel Rossman [the deceased] when she enlisted the aid of Thomas’ fellow deputy to check on the activities of a man with whom she thought herself to be amorously involved. Through such acquaintanceship, Thomas learned that deceased was in the habit of having large sums of money on her person and in her living quarters. The Commonwealth sought to prove that Thomas conceived the idea of robbing the deceased and to that end, through numerous telephone calls between Florida and Oklahoma and personal meetings in Florida and Oklahoma, formed a conspiracy with Gus DeMoss, Raymond Wilson and Frank Ellsworth; in furtherance of that conspiracy, Wilson and Ellsworth went to Philadelphia and, on July 3, 1955, entered the deceased’s room in the Adelphia Hotel where they robbed her of a large sum of money; in the course of that robbery, the deceased met her death. (Footnotes omitted)

Id., 410 Pa. at 162-163, 189 A.2d at 257.

In our present case, we have direct evidence of a conspiratorial agreement. Although the conspiracy was established through the testimony of a co-conspirator, such testimony is sufficient. Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979). The substance of that agreement — to rob an Elby’s assistant manager of a night’s proceeds before deposit — was carried out, except for the fact that appellant was unaware prior to the robbery and murder that the crime was going to be committed that night. However, just as a co-conspirator is not relieved of criminal liability when not physically present at the scene of the crime, we believe that appellant’s unawareness, while physically present, a fortiori, is no ground to challenge the sufficiency of the evidence. The illegal agreement is the substance of the crime of conspiracy, and in this case, that agreement was proven beyond a reasonable doubt. Appellant’s co-conspirators, Bennett and Ross, subsequently executed that plan. We find the evidence sufficient to justify, beyond a reasonable doubt, the jury’s verdict that appellant was guilty of criminal conspiracy.

Appellant also contends that the court below erred in admitting into evidence certain statements he made to law enforcement authorities. Appellant bases his claim on two grounds: 1) that the statements are hearsay and not subject to any exception, i.e., they do not qualify as admissions (statements are not relevant evidence), and 2) if the statements are admissible, per an exception, that, in any event, his last two statements were not admissible because such communications were made in furtherance of plea negotiations.

These statements were made on January 12, 1980, January 15, January 25, February 7, March 10, and March 18, and were introduced through the testimony of Detective Womer. The substance of this testimony can be summarized as follows: In the early morning hours of January 12, 1980, immediately following the shooting of William White, appellant, as a witness to the crime, gave a statement to the police. Appellant admitted at that time that he knew the procedures followed with regard to Elby’s night receipts and that he always received a ride home with Mr. White. The appellant was subsequently interviewed on January 15, January 25, and February 7, at which times he denied any further knowledge of the matter. However, on March 10, 1980, he requested a meeting with the district attorney and the meeting was held on March 18, 1980. At this time appellant changed his position and indicated that he did have information which would only be divulged if the district attorney made “a deal” with him. The district attorney refused the appellant’s offer and the meeting was concluded.

In addition, on January 15, 1980, appellant also met with Detective Weidensaul. At this meeting, appellant gave a description of a person he claimed he saw the night of the shooting. From this description and with the use of an identikit, Detective Weidensaul made up a composite sketch of the person described by appellant.

It is settled law in this Commonwealth that a false denial of guilt by an accused is admissible as substantive evidence of his consciousness of guilt. Commonwealth v. Cristina, 481 Pa. 44, 54, 391 A.2d 1307, 1311-12 (1978); Commonwealth v. Bolish, 381 Pa. 500, 524, 113 A.2d 464, 476 (1955); Commonwealth v. Lowry, 374 Pa. 594, 601, 98 A.2d 733, 736 (1953); Commonwealth v. Homeyer, 373 Pa. 150, 158-59, 94 A.2d 743, 746 (1953); Commonwealth v. Spardute, 278 Pa. 37, 43, 122 A. 161 (1923). We have held:
... false or contradictory statements by the accused are admissible since the jury may infer therefrom that they were made with an intent to divert suspicion or to mislead the police or other authorities, or to establish an alibi or innocence, and hence are indicatory of guilt. Commonwealth v. Bolish, supra [381 Pa.] at 524, 113

A.2d at 476. Professor Wigmore has written: “False exculpatory statements made to law enforcement officers constitute circumstantial evidence of guilty consciousness.” II Wigmore, Evidence § 278 (3d ed. Supp. 1979) (emphasis in original).

Commonwealth v. Glass, 486 Pa. 334, 346-347, 405 A.2d 1236, 1242 (1979).

Appellant’s statements, taken as a whole, provided information which we believe was intended to mislead the police investigation and to obfuscate his participation in the crime. First, appellant stated on three occasions that he did not see anyone the night of the shooting, along with his account of January 12, 1980, concerning the events before and after the shooting. Included in this statement was appellant’s knowledge of the night proceeds deposit procedure as well as the fact that he usually received a ride home from Mr. White. On January 15, 1980, appellant also described for another detective a person he believed he saw the night of the shooting. This description was given after he had met with Detective Womer. Finally, appellant stated that he had information which, in exchange for a “deal”, he was willing to provide to the district attorney. As such, these statements were voluntary extra-judicial admissions which in conjunction with the other evidence produced by the’Commonwealth, served as relevant indications of appellant’s guilt.

Appellant further offers as a ground in support of his contention that the last two statements he made to the authorities, even if they are found to be admissions, were not admissible because these statements were made to initiate plea negotiations. Appellant cites various federal case decisions for that proposition. U.S. v. Herman, 544 F.2d 791 (5th Cir., 1977); U.S. v. Brooks, 536 F.2d 1137 (6th Cir.1976); U.S. v. Smith, 525 F.2d 1017 (10th Cir., 1975); U.S. v. Ross, 493 F.2d 771 (5th Cir., 1974).

The only case in Pennsylvania which, in dictum, has discussed this particular issue within the criminal context is Commonwealth v. Cohen, 133 Pa.Super. 437, 2 A.2d 560 (1938). In Cohen, supra, the Commonwealth introduced a statement made by the appellant to the prosecuting police officers at his preliminary hearing wherein the appellant offered to change his plea to guilty, if the officer would arrange a shorter sentence with the district attorney. The judgment of sentence was reversed for other reasons but this court, in Cohen, went on to say that other jurisdictions were divided on the question of the admissibility of offers to plead guilty. Without analysis, the court was swayed by “the apparent weight of authority against the admissibility of such evidence,” Id., 133 Pa.Superior at 448, 2 A.2d at 565, and believed that the question at trial should not have been introduced. Although this has been the last word in Pennsylvania jurisprudence, the federal courts and other state jurisdictions have wrestled with the problem.

Our review of those federal cases and federal rules on this point, as well as general policy considerations in this particular area, leads us to the conclusion that any statements made in connection with an offer to plead guilty are inadmissible. The logic behind a Criminal Justice system that encourages plea bargaining requires that result:

The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called “plea bargaining,” is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.
Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it- protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States, 397 U.S. 742, 751-752, 90 S.Ct. 1463 [1470-1471], 25 L.Ed.2d 747 (1970).

Santobello v. New York, 404 U.S. 257, 260-61, 92 St.Ct. 495, 498, 30 L.Ed.2d 427, (1971); see also, Blackledge v. Allison, 431 U.S. 63, 71, 97 St.Ct. 1621,1627, 52 L.Ed.2d 136 (1977).

Initially, however, it must be determined in such cases whether or not the statement or statements made by an accused are in connection with plea negotiations. U.S. v. Robertson, 582 F.2d 1356 (5th Cir.1978) provides a workable analytical framework to determine the appropriate characterization:

... first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and second, whether the accused’s expectation was reasonable given the totality of the objective circumstances. Id, at 1366.

Of primary importance in assessing an accused’s subjective expectation of negotiating a plea is whether the Commonwealth showed an interest in participating in such discussions. In line with this reasoning, voluntary, unsolicited statements uttered by an accused to authorities cannot be said to be made in furtherance of striking a plea bargain.

In the instant case, we conclude that appellant’s statements were not made attendant to plea negotiations. Appellant, at the time he uttered the statements, was not under arrest, and would not be placed under arrest for the crime until some three months after his personal communication with the district attorney. Not being a defendant, there is then no reason for us to assume that he was offering to plead guilty to a crime for which he had not been charged. There are myriad possible explanations underlying his motivation to provide “information” for a “deal”. We do not know what the “information” was or what type of “deal” he wanted to arrange. Neither did the district attorney. We know what appellant claims now, i.e., he was attempting to open a plea bargaining discussion, but our focus seeks an explanation at the time the statements were made. The Commonwealth neither compelled the appellant to come forward nor exhibited a willingness to enter into plea negotiations with him. While it is true the district attorney agreed to meet with the appellant, per his request, we believe the facts indicate that the Commonwealth was interested in acquiring the “information” appellant said he had, whatever it was, but not to plea bargain. Appellant’s remarks were simply unsolicited, unilateral statements which supports our conclusion that appellant could not have had a reasonable subjective expectancy that his statements were made in regard to a plea negotiation. We hold that the statements were properly admitted by the trial court.

Judgment of sentence is affirmed.

      . 18 Pa.C.S.A. § 903.

      . In appellant’s brief these were the only contentions set forth in his "Statement of Questions.” In his "Argument” portion of the brief, appellant subdivided the insufficiency contention in three parts:
      (a) The evidence presented by the Commonwealth at trial to establish the overt act committed in furtherance of a conspiracy varied crucially from the overt act alleged in the information.
      (b) The Commonwealth did not establish beyond a reasonable doubt the existence [sic] of a conspiratorial agreement between the appellant and the perpetrator of the robbery and homicide.

      . Fed.R.Crim.P. 11(e)(6) provides:
      Inadmissibility of Pleas, Offers of Pleas, and Related Statements. Except as otherwise provided in this paragraph, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and related to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.
      Fed.R.Evid. 410 provides:
      Inadmissibility of Pleas, Offers of Pleas, and Related Statements
      Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

      . The A.B.A. Standards Relating to Pleas of Guilty contain the following standard relating to plea bargaining:
      Discussion and agreement not admissible.
      Unless the defendant subsequently enters a plea of guilty or nolo contendere which is not withdrawn, the fact that the defendant or his counsel and the prosecuting attorney engaged in plea discussions or made a plea agreement should not be received in evidence against or in favor of the defendant in any criminal or civil action or administrative proceedings.
      A.B.A. Standards Relating to Pleas of Guilty § 3.4 (1968)


source: Caselaw Access Project

author: VAN der VOORT, Judge:

license: Public Domain

text:
    459 A.2d 801
    James M. FANDRAY, Appellant v. NATIONWIDE MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1982.
    Filed April 15, 1983.

      Allen T. Lane, Pittsburgh, for appellant.
    Gerard J.A. Cipriani, Pittsburgh, for appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Appellant was injured in an automobile accident and filed a claim for certain No-Fault Motor Vehicle Insurance benefits with appellee-insurer (Nationwide). The specific claim here at issue which was rejected by the insurer, is for replacement services loss. Appellant pressed his claim and won an award before a Board of Arbitrators in the amount of $85 for replacement services and $525 for counsel fees based on appellant’s need to bring suit to enforce his claim. Nationwide took an appeal to the Court of Common Pleas. After the presentation of the evidence, the court directed a verdict in favor of Nationwide. Appellant’s motion for a new trial was denied and this appeal was taken.

Appellant lists five issues in his brief but as he implicitly acknowledges by consolidating the issues into one argument, there is only one issue for us to address. Appellant’s complaint lies in the lower court’s direction of a verdict for defendant based on the court’s determination that the damages claimed were not within the intended scope of replacement services loss.

We turn to the definitional section of the No-fault Act, 40 P.S. § 1009.103.

Loss means accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to, allowable expense, work loss, replacement service loss, and survivor’s loss. Replacement service loss is defined as:
Replacement services loss’ means expenses reasonably incurred in obtaining ordinary and necessary services in lieu of those the victim would have performed, not for income, but for the benefit of himself or his family, if he had not been injured.

Further, under the insurance policy there is a similar provision which reads as follows:

REPLACEMENT SERVICES EXPENSES We will pay reasonable expenses incurred for hiring ordinary and necessary services an insured would have performed— but not for income — for himself and his family had he not been injured. Such expenses must be incurred during the insured’s lifetime. In connection with any one accident, we will pay this benefit up to a maximum of $25 per day for a maximum of one year.

Here appellant’s claim is for reimbursement of monies expended to install an A-frame bushing on his car ($35.00); and install a garage door opener ($50.00). Further explanation is required. Appellant and wife maintained two automobiles, neither was involved in the accident at hand. One of the automobiles allegedly required the replacement of a bushing in order to comply with the state inspection requirements. Appellant contended that but for his injuries, he would have undertaken the bushing replacement himself, instead he was unable to do it and required another to perform the repairs. On a similar note is the claim for the installment cost of the garage door opener. The device was purchased prior to the accident with the intention that appellant would install it himself. Due to his injuries he was incapable of performing the installation and had to rely on the paid for assistance of others.

Appellant argues that as a matter of law the trial judge erred in withdrawing from the jurors’ consideration the question whether such expenses come within the definition supplied by § 103.

On a motion for a directed verdict the court should accept as true all facts and proper inferences which support the contention of the party against whom the motion has been made and must reject all testimony and inferences to the contrary. Correll v. Werner, 293 Pa.Superior Ct. 88, 437 A.2d 1004 (1981); Stephens v. Carrara, 265 Pa.Superior Ct. 102, 401 A.2d 821 (1979); Hogan v. Bryn Mawr Hospital, 250 Pa.Superior Ct. 109, 378 A.2d 477 (1977). Here the trial court, in essence found that as a matter of law, the expenses of the bushing replacement and garage door opener installation were not “replacement services loss.” The trial court reasoned that as appellant had never before installed a garage door opener and had only replaced a bushing on a vehicle once before, years earlier, the expenses were not “ordinary and necessary” within the Act.

Like many of the cases that our appellate courts have faced concerning No-fault, the current controversy is a case of first impression in Pennsylvania. While the legislature has defined “replacement service loss”, such definition does not contain a list of examples to assist parties and the courts in applying it. We look to other jurisdictions as well as the dictionary for assistance. We find that the services claimed here could possibly come within the scope of “replacement services loss.”

For the purpose of this appeal the following phrases require defining: “reasonably incurred” and “ordinary and necessary services.” Even though the parties have stipulated that the claimed expenses were “reasonably incurred, we find it beneficial for the resolution of this controversy to expound upon such phrase. The “replacement services loss” provision must be construed as a whole and not as separate clauses.

Webster’s New Collegiate Dictionary (1980 Ed.) defines reasonable as “agreeable to reason;” “not extreme or excessive”, “having the faculty of reason”; “possessing sound judgment.” Jamison v. Utah Home Fire Ins. Co. Utah, 559 P.2d 958, 961 (1977) defined “reasonably incurred”, within the context of No-fault; by asking whether it was reasonable that a family would hire someone else to perform the tasks. The emphasis must be placed on whether a person exercising sound judgment would have paid another to perform the chore.

Webster’s defines “ordinary” as “a kind to be expected in the normal order of events”; of common quality, rank, or ability.” Black’s Law Dictionary, 4th Ed.Rev. defines “ordinary” as “regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterized by peculiar or unusual circumstances; belonging to, exercised by, or characteristic of the normal or average individual.” (Citations omitted) See also, Zulich v. Bowman, 42 Pa. (6 Wright) 83, 87 (1862). “Necessary” is defined by Webster’s as: “of an inevitable nature;” logically unavoidable”; absolutely needed”; required.” Black’s points out that in defining necessary, one must consider the connection in which it is used. Necessary “may mean something which in the accomplishment of a given object cannot be dispensed with.” We find that the meaning of “ordinary and necessary services” for the purpose of this appeal may be expressed as: those services which must be performed for a particular household to continue its normal operation.

We have little difficulty in finding that both expenses were “reasonably incurred.” In Jamison, supra, a twelve year old, who was incapacitated as the result of an automobile accident, had been responsible for taking out the garbage, washing dishes, vacuuming, carrying in groceries and washing the car. The remainder of the household consisted of his parents and two older siblings. The court felt that under such circumstances it was unlikely that the family would pay others to do the above chores. In contrast, automotive repairs and the installation of the door opener were expenses one would normally expect a person to pay others to perform. In Adkins v. Auto Owners Ins. Co., 105 Mich.App. 431, 306 N.W.2d 312 (1980), the court, without extensive discussion, approved an award for trash disposal, stove repairs, car maintenance, babysitting, plumbing repairs, and woodcutting (specific bills were provided). In The Pennsylvania No-Fault Motor Vehicle Insurance Act (Shager ed.) § 1:11.5, several examples are given for “replacement services loss”; domestics, gardeners and repair persons. In Habecker, supra, housekeeping expenses were “reasonably incurred.”

We find that labor for automotive repairs whether for state inspection purposes or normal maintenance is ordinary and necessary. Any argument that a certain repair is not “ordinary” overlooks the more general notion of repairs. If a person regularly repairs whatever ails his vehicle, he or she should not be denied reimbursement because a certain part does not wear out frequently. We would hope, few if any parts would require frequent replacement.

However, as to the garage door opener, a definitive answer is elusive. While a person “handy around the house”, see Adkins, supra, may be able, as the lower court found, to install a garage door opener, we believe that the determination as to whether or not the installing of a garage door opener is “ordinary and necessary” cannot be declared as a matter of law but is rather a question of fact; in this case for the jury. While such installation could be within the normal order of things for a person who routinely does electrical or remodeling work around the house; we cannot determine whether such was “necessary” to the continued normal functioning of appellant’s household. We believe that is a question to be decided by the fact finder. Evidence was presented that appellant was unable to open the garage door, as it exists, from the inside. He could open it from the outside. There was testimony to the effect that appellant owned two cars, but only one car could be kept in the garage. Therefore, we find that the trial court erred in directing a verdict; the jury should have been permitted to determine whether it was “ordinary & necessary.”

Our disagreement with the lower court results from the different perspectives we have assumed. The lower court believed that “replacement services” required an objective view of what services are “ordinary and necessary”; and referred to the traditionally accepted self-services: domestic help, child care, lawn care, snow removal and so forth. We disagree; the focus should be on those “ordinary and necessary services ... the victim would have performed.” In other words, the expenses should depend on a particular victim and not a hypothetical victim. Such was our holding in Habecker, 299 Pa.Superior 470, 445 A.2d at 1225. There, in reference to “replacement services loss”, this court was required to construe the time period for receiving reimbursement: an aggregate period of one year. This court found the period was 365 days on which such services were actually required, and not a period of 365 consecutive days. Such interpretation is consistent with one of the legislature’s concerns in enacting the Act, 40 P.S. § 1009.102(a)(3):

(3) the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways, in intrastate commerce, and in activity affecting intrastate commerce is essential to the humane and purposeful functioning of commerce.

We must conclude that whether the services here under review were reasonably incurred, were ordinary and necessary and could have and would have been performed by the victim were factual determinations which unless stipulated to should have been submitted to the jury for resolution. Therefore, the directed verdict in this respect was improper. However, as to attorney’s fees, we affirm the action of the court below.

Section 107(3) of the Act, 40 P.S. § 1009.107(3) provides:

If, in any action, .the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.

Therefore we must decide whether Nationwide had a reasonable foundation for denying such claim. We find that it did. At issue was a particular provision of the Act which had not been previously addressed in the light in which it arose in this case. The insured wished to construe it liberally. The insurer preferred a more restricted construction. Nationwide consulted in-house-counsel who in turn requested and received the Insurance Commissioner’s interpretation. While that interpretation is not binding upon this court and in fact is contrary to our analysis, it does demonstrate that Nationwide had a reasonable basis for denying the claim. Therefore, an award of attorney fees would not be proper. See Hayes v. Erie Insurance Exchange, 493 Pa. 150, 180, 425 A.2d 419 (1981); and Platts v. Government Employees Insurance Co., 301 Pa.Superior Ct. 379, 384, 447 A.2d 1017, 1019 (1982).

Order affirmed in part and reversed in part. Case is remanded for further proceedings not inconsistent with this opinion. We do not retain jurisdiction.

      . Under § 1009.202(c) the daily required maximum payment is $25.; appellant’s policy provided for higher coverage.

      . There was no evidence presented that the plaintiffs did actually incur such expenditure. It can be inferred that the word "incurred” requires an actual expenditure or liability for service. See, Habecker v. Nationwide Insurance Company, 299 Pa.Superior Ct. 463, 445 A.2d 1222 (1982 and Adkins v. Auto Owners Ins. Co., supra.

      . The lower court placed weight upon appellant’s indefinite testimony regarding the need of repair to meet inspection requirements; we find it irrelevant whether repair is for inspection purposes or otherwise required.


author: PER CURIAM:

text:
    459 A.2d 806
    COMMONWEALTH of Pennsylvania, Appellee v. Dorothy BOETTCHER, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 10, 1982.
    Filed April 15, 1983.

      James Robert Protasio, Assistant Public Defender, Williamsport, for appellant.
    Ellen Laura Cohen, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   PER CURIAM:

Appellant, Dorothy Boettcher, was convicted by a jury of simple assault, aggravated assault, recklessly endangering another person and violating the Pennsylvania Uniform Firearms Act. Following the denial of post-verdict motions, appellant was sentenced to one to three years imprisonment for aggravated assault and one to two years imprisonment for the remaining charges, to run concurrently. In this appeal, appellant argues that (1) the evidence was insufficient to sustain her convictions, and (2) the lower court erred in not granting her motion for a continuance so that privately-retained counsel could prepare her case. For the following reasons, we reverse the judgment of sentence for violating the Pennsylvania Uniform Firearms Act, vacate the judgments of sentence for simple assault and recklessly endangering another person and affirm the judgment of sentence for aggravated assault.

In deciding the sufficiency of evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth as verdict winner, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981); Commonwealth v. Stockard, 489 Pa. 209, 212-213, 413 A.2d 1088, 1090 (1980). It is settled law that while guilt may be proved by direct or circumstantial evidence, it may not rest upon mere suspicion or conjecture. Commonwealth v. Gray, 297 Pa.Super. 123, 125, 443 A.2d 330, 331 (1982); Commonwealth v. Jones, 291 Pa.Super. 69, 72, 435 A.2d 223, 225 (1981); Commonwealth v. Beauford, 286 Pa.Super. 297, 300, 428 A.2d 1000, 1002 (1981). Using this standard, the facts adduced at appellant’s trial may be summarized as follows.

On October 2, 1980, at approximately 2:30 a.m., Tami Crouser arrived in front of appellant’s apartment building in Williamsport, Pennsylvania with Brenda Summers and Herbert Foster, Jr. While Summers and Foster went inside appellant’s apartment for a party, Crouser remained in her car asleep. Two hours later, she awoke and went inside appellant’s apartment to use the bathroom. When Crouser emerged, appellant grabbed her and told her to leave. The pair wrestled on the floor until their scuffle was broken up by a party guest. Crouser then left the apartment and re-entered the car.

Shortly thereafter, Crouser, who wanted to leave, realized that Brenda Summers had her keys. She approached appellant’s apartment only to find appellant in the doorway, pointing a gun. Crouser ran into appellant’s bathroom and shut the door. Appellant remained outside the bathroom yelling for Crouser to get out. Crouser was able to escape only when Brenda Summers lured appellant away from the bathroom door.

Crouser, Summers and Foster returned to Crouser’s car and tried to leave; Summers was in the driver’s seat, Crouser in the front passenger’s seat and Foster in the middle. Appellant approached the passenger’s side of the car and, reaching through the open window, hit Crouser in the head with her gun. She then turned and twice fired her gun into the air. Again turning to the car, appellant smacked Crouser, with her hand, in the side of the neck and back of the head. Before appellant left, she fired a parting shot in the air.

As a result of being pistol-whipped by appellant, Crouser received ten stitches in her cheek and four or five in her forehead.

Testifying in her own defense, appellant acknowledged that, after the altercation with Crouser inside the apartment, she grabbed a gun and started waving it in an attempt to get her party guests to leave. She claimed, however, that she hit Crouser with the gun only after Crouser hit her first and, furthermore, that this episode occurred inside her apartment. Once Crouser was outside in her car, appellant stated that she never hit her with a gun. Finally, appellant admitted that while she did fire her gun several times in the air, she was standing inside her building, and not by Crouser’s car.

In this appeal, appellant claims that the evidence was insufficient to support the verdicts because Crouser’s testimony was contradicted by that of two other Commonwealth witnesses. Specifically, appellant argues that the testimony of those witnesses supports her theory that the altercation which resulted in Crouser’s injuries occurred inside the apartment building and not by Crouser’s car. It is, of course, true that “where evidence offered to support guilt of a crime is so unreliable and/or contradictory as to make a verdict based thereon pure conjecture rather than the product of reasonable reconciliation, an appellate court is justified in concluding that it was reversible error to allow the jury to return a guilty verdict based thereon.” Commonwealth v. Cristina, 481 Pa. 44, 51, 391 A.2d 1307, 1310 (1978), cert. denied, 440 U.S. 925, 99 S.Ct. 1255, 59 L.Ed.2d 479 (1979). However, it is also true that “variances in testimony ... go to the credibility of witnesses and not the sufficiency of the evidence.” Commonwealth v. Galloway, 495 Pa. 535, 539, 434 A.2d 1220,1222 (1981). Since the credibility of witnesses and the weight to be accorded their testimony is within the province of the factfinder, not the court reviewing the record on appeal, Commonwealth v. Farquharson, 467 Pa. 50, 59-60, 354 A.2d 545, 550 (1976), we find no basis to disturb the jury’s determination that the evidence was sufficient to support appellant’s convictions of aggravated assault, simple assault and recklessly endangering another person.

We must, however, reverse appellant’s judgment of sentence for violating the Pennsylvania Uniform Firearms Act. Appellant was specifically charged with violating 18 Pa.C.S.A. § 6103. That section provides as follows:

§ 6103 Crimes Committed With Firearms.
If any person shall commit or attempt to commit a crime of violence when armed with a firearm contrary to the provisions of this subchapter, he may, in addition to the punishment provided for the crime, be punished also as provided by this subchapter.

In Commonwealth v. Simpson, 302 Pa.Super. 287, 293, 448 A.2d 640, 643 (1982) (citations omitted), we stated “[a] defendant may not be convicted under § 6103, for the provision merely provides that a violation under Sub-Chapter 61 of the Crimes Code does not merge with a crime of violence for purposes of sentencing; it does not create a separate offense.” Accordingly, the judgment of sentence imposed for violating 18 Pa.C.S.A. § 6103 is reversed.

Appellant’s second argument is that the lower court erred in denying her motion, made immediately before trial was to begin, for a continuance so that privately-retained counsel could prepare her case. The fact that such a motion was made is stated in the briefs of the litigants and in the opinion of the lower court. Our review of the record fails to show any transcribed proceedings of appellant’s continuance request. Ordinarily, we would decline to review this issue since we cannot consider facts outside the record. Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974). In the interest of judicial economy, and because the issue has been briefed by the litigants and discussed by the lower court, we nonetheless address it here. Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d 1383 (1983).

Appellant was represented by the public defender’s office from soon after her October, 1980 arrest until the time of her March, 1981 trial. At no time during that period did she indicate any desire to obtain private counsel. Instead, on the day trial was to begin, appellant first stated that she had borrowed money from friends and hired a private attorney. It is unclear, since we lack a transcription of appellant’s continuance motion, whether her request was instigated by any specific disagreement with the public defender or simply reflected a desire to have another attorney. In any event, the lower court denied appellant’s request and trial commenced with appellant being represented by the public defender.

It is clear that a person charged with a crime has a constitutional right to the assistance of counsel which includes the right to a reasonable opportunity to obtain counsel of his or her own choice. Commonwealth v. Kittrell, 285 Pa.Super. 464, 467, 427 A.2d 1380, 1381 (1981); Commonwealth v. Andrews, 282 Pa.Super. 115, 122, 422 A.2d 855, 858 (1980). That right, however, is not absolute. As we stated in Commonwealth v. Atkins, 233 Pa.Super. 202, 207-08, 336 A.2d 368, 371-372 (1975) (citations omitted):

[T]he desirability of permitting a defendant additional time to obtain private counsel of his choice must be weighed against the public need for the efficient and effective administration of justice. The matter of continuance is traditionally one within the discretion of the trial judge, and no prophylactic rule exists for determining when a denial of a continuance amounts to a violation of due process. Each case must be decided by balancing the competing interests, giving due regard to the facts presented. “[I]t is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

Under the circumstances of this case, we cannot say that the lower court abused its discretion in denying appellant’s request for a continuance.

As we have stated, appellant was represented up until trial by the public defender. It was not until the day trial was to begin that she indicated that she now had the money for and had hired a private attorney. We have repeatedly condemned the practice of waiting until the day of the trial to request a continuance for the purpose of obtaining a new attorney. Commonwealth v. Nicolella, 307 Pa.Super. 96, 452 A.2d 1055 (1982); Commonwealth v. Kittrell, supra; Commonwealth v. Andrews, supra. It is, furthermore, clear from a review of the record that the public defender was well-prepared for trial and, in fact, afforded appellant a vigorous and well-conceived defense. In any event, appellant apparently was not altogether denied the assistance of counsel of her choice. According to the lower court, when appellant’s proposed private attorney appeared in the courtroom during jury selection, the court advised him that he could begin participation in the trial immediately. He declined to do so. (Opinion of lower court at 4).

Finally, the lower court carefully considered other significant factors in denying appellant’s continuance request. First, trial commenced on March 2, 1981, only twenty-nine days before the expiration of the Pa.R.Crim.P. 1100 run date. Compare Commonwealth v. Nicolella, supra (continuance request made well within the Pa.R.Crim.P. 1100 period for trial). Second, as the lower court’s opinion states, the Commonwealth was ready on March 2nd to proceed with its witnesses, several of whom were not local residents. (Opinion of lower court at 3-4). These circumstances further convince us that the lower court acted properly in denying appellant’s continuance request.

The lower court erred, however, when it imposed separate sentences for aggravated assault, simple assault and recklessly endangering another person.

[I]n merger of sentences cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be merger and only a single sentence may be imposed, or more than a single act, in which case there will be no merger and a sentence may be imposed for each act.

Commonwealth v. Crocker, 280 Pa.Super. 470, 475, 421 A.2d 818, 820-821 (1980).

Here, appellant was specifically charged as follows:

(1) Simple Assault, 18 Pa.C.S.A. § 2701(a)(1) (“in that she attempts to cause, or intentionally, knowingly or recklessly causes bodily injury to Tami Marie Krauser, White female 21 years, to wit: she did strike the body of Tami Marie Krauser with hands, fists and hand gun causing laceration to face and neck areas.”)
(2) Aggravated Assault, 18 Pa.C.S.A. § 2702(a)(1) (“in that she attempts to cause serious bodily injury to Tami Marie Krauser or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life, to wit: she did, armed with a hand gun point, at Tami Marie Krauser, white female, 21 years.”)
(3) Recklessly Endangering Another Person, 18 Pa.C. S.A. § 2705 (“in that she recklessly engages in conduct which places or did place Tami Marie Krauser, white female, 21 years in danger of death or serious bodily injury, to wit: she did, armed with a hand gun point, at Tami Marie Krauser, white female, 21 years”)

Applying the doctrine of merger to the facts of this case, which have already been recounted in great detail, we hold that simple assault and recklessly endangering another person were constituent offenses of aggravated assault and, for sentencing purposes, merged with the more serious offense. See Commonwealth v. Williams, 290 Pa.Super. 209, 434 A.2d 717 (1981) (aggravated assault and reckless endangerment); Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 420 A.2d 674 (1980) (simple assault merges into aggravated assault and reckless endangerment). Accordingly, we vacate the judgments of sentence for simple assault and recklessly endangering another person. Because, however, the concurrent sentences imposed for the merged offenses did not influence the sentence imposed for the principal crime of aggravated assault, we need not remand for resentencing. Commonwealth v. Moore, 300 Pa.Super. 488, 446 A.2d 960, 963 (1982); Commonwealth v. Cadogan, 297 Pa.Super. 405, 409, 443 A.2d 1185, 1187 (1982).

Judgment of sentence for violating the Pennsylvania Uniform Firearms Acts reversed. Judgments of sentence for simple assault and recklessly endangering another person vacated. Judgment of sentence for aggravated assault affirmed.

      . Although appellant did not raise a specific challenge to the propriety of her conviction under 18 Pa.C.S.A. § 6103, we nonetheless address that claim in light of the importance of assuring that an accused is not found guilty of an offense which is not even a crime in Pennsylvania. Cf. Commonwealth v. Von Aczel, 295 Pa.Super. 242, 441 A.2d 750 (1981).

      . In Simpson, we vacated the judgment of sentence under 18 Pa.C.S.A. § 6103 “as no evidence was presented as to any violation of the Uniform Firearms Act.” 302 Pa.Super. at 293, 448 A.2d at 643. We think this statement erroneously implies that an accused can be convicted under 18 Pa.C.S.A. § 6103 in the event he is also found guilty of another violation of the Pennsylvania Uniform Firearms Act. Our understanding of 18 Pa.C.S.A. § 6103 is that one may never be convicted under that provision of The Crimes Code, notwithstanding the existence of another firearms charge under 18 Pa.C.S.A. § 6101 et seq. See Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979). Rather, 18 Pa.C.S.A. § 6103 establishes only that the sentence for firearms violation will not merge with the sentence for a crime of violence.

      . Although appellant did not argue merger, this issue is not waived. Commonwealth v. Franklin, 306 Pa.Super. 422, 430 n. 4, 452 A.2d 797, 801 n. 4 (1982); Commonwealth v. Moore, 300 Pa.Super. 488, 446 A.2d 960, 963 (1982).

      . In a case such as this, where appellant caused injury to one victim and also discharged a gun into the air in the presence of others, we might be reluctant to apply merger. See, e.g., Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1979). However, we note that appellant was not specifically charged with reckless endangerment for pointing or discharging the gun in the presence of others; rather, she was charged with that offense only for her act of pointing the gun at Tami Crouser.


author: CERCONE, President Judge:

text:
    459 A.2d 811
    MERCER COUNTY AGRICULTURE SOCIETY, a Non-Profit Corporation with Offices at Stoneboro, t/a Stoneboro Fair, v. Wilbert BARNHARDT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1983.
    Filed April 22, 1983.

      Edith Benson, Sharon, for appellant.
    Michael Halliday, Greenville, for appellee.
    Before CERCONE, President Judge, and POPOVICH and VAN der VOORT, JJ.
   CERCONE, President Judge:

In this landlord/tenant dispute, appellant, Wilbert Barnhardt, appeals from the decision of the court below granting appellee, Mercer County Agriculture Society [hereinafter referred to as the Agriculture Society, or the landlord], a writ of possession and monetary damages for rent accrued and paid by appellant to the prothonotary during the pend-ency of this action. Appellant’s argument on appeal is that his lease was not properly terminated by appellee. We find appellant’s argument to have no merit and we affirm.

The facts as found by the trial court are these. In 1978, the parties entered into an oral, month-to-month lease for the rental of four horse stalls at $15.00 per month. The term of the lease was to run from the first day of the month to the last. Additionally, the lease entitled Barnhardt to draw water for his horses and to use the racetrack for training and conditioning the animals.

Then, on November 8, 1978, the landlord’s stall superintendent personally served Barnhardt with a written notice to quit the premises. This notice said:

It has been decided by the Board of Directors of the Stoneboro Fair Association, at their meeting on November 6, 1978, that we do not wish to renew your month to month lease for horse and tack stalls at the Stoneboro fairgrounds.
Be advised that this is your official notification to remove horses, either owned or trained by you, along with your personal property, from the Stoneboro Fair property by December 10, 1978.

When Barnhardt refused to vacate, the Agriculture Society filed an action in ejectment in district court. Barnhardt counter claimed for damages done to feed and other materials kept at the stables, allegedly occurring because of a leaking roof. The court ruled in favor of the Agriculture Society on all claims and Barnhardt appealed to the common pleas court. Following a hearing, the court of common pleas granted the Agriculture Society a writ of possession and a verdict for rental due. The court also ruled against Barnhardt on his counterclaim. Barnhardt now appeals.

Appellant Barnhardt argues that his lease was not properly terminated by the landlord because the termination date as set forth in the notice to quit, did not coincide with the end of the monthly term. For this reason, appellant contends that the common law rule, which held that a notice to quit must coincide with the end of the term else the notice is completely null and void, should be held to govern appellant’s case.

In relevant part, the Landlord and Tenant Act of 1951 provides:

A landlord desirous of repossessing real property from a tenant may notify, in writing, the tenant to remove from the same at the expiration of the time specified in the notice under the following circumstances, namely, (1) Upon the termination of a term of the tenant....
In case of the expiration of a term or of a forfeiture for breach of the conditions of the lease where the lease is for any term of less than one year or for an undeterminate time, the notice shall specify that the tenant shall remove within thirty days from the date of service thereof, and when the lease is for one year or more, then within three months from the date of service thereof.

The notice provided for in this section may be served personally on the tenant... ,

There are no appellate court decisions construing this portion of the Act, and the trial court decisions which have been reported are in conflict. It is therefore necessary to begin our analysis with appellate cases decided under the law which preceded the Act of 1951.

In Hollis v. Burns, 100 Pa. 206, 45 Am.Rep. 379, 13 W.N.C. 241 (1882), the tenant leased a house under an oral, month-to-month lease which commenced on the sixth of each month. After occupying the premises for twenty months, the tenant vacated the premises on the fifth of the month. The landlord sued for rental money, arguing that the monthly tenancy had become a yearly tenancy when the tenant stayed beyond one year.. Based on the common law, the Court rejected the landlord’s argument and ruled the tenancy to be a monthly one. In dictum the Court noted that where the tenancy is monthly, “a month’s notice to quit [from the landlord] is sufficient.” 100 Pa. at 209.

The Hollis case was subsequently cited as authority by our Court in Hood v. Drysdale, 27 Pa. Superior Ct. 540, 543 (1905) for the proposition that a. monthly tenancy “could be terminated [by the tenant] at the end of any month by removing from the premises, and by the landlord by giving one month’s previous notice to quit.” As in Hollis, the tenancy in Hood was based on an oral lease; the term of the lease commenced on the twenty-seventh of each month. On June 9, 1904, the landlord gave the tenant notice to quit on July 27, 1904. The Court ruled that the notice was effective even though it allowed for more than one month’s notice to the tenant.

The case of Robinson v. Kuhen, 83 Pa.Superior Ct. 338 (1924) is also instructive. In Robinson, the tenant held over for several years following the expiration of his written lease. Then, on August 15, 1922, the landlord served the tenant with notice to quit and demanded removal by September 15, 1922. On appeal, the tenant argued that he was a monthly, or periodic tenant, and that as such he was entitled to thirty days’ notice prior to the expiration of the term. However, this Court rejected the claim that this was a monthly tenancy and ruled that it was only a tenancy at will. At the time, the relevant statutory provision provided:

In all cases where a tenant shall hold possession of real estate within this Commonwealth, either by license or lease, whether oral or written, for any time less than one year, or by the month, or for an undeterminate time; and the immediate landlord or owner of such real estate shall desire to regain possession thereof from such tenant or occupant, he shall serve upon the tenant or an adult member of his family a notice, in writing, — therein that he requires such tenant or occupant to deliver to him the possession of the premises, so held, wiithin thirty days from the date of the service thereof; Provided, that this act shall not be construed as authorizing the dispossession of a tenant before the expiration of his or her license or lease.

The Act of March 31, 1905, P.L. 87, Sec. 1, 68 P.S. § 366. Thus, the Court held that “the tenancy [at will] could be terminated at any time, provided notice be given thirty days before bringing the action.” Id., 83 Pa.Superior at 339. In a concurring opinion, Judge Keller, joined by Judge Gawthop, disagreed with the court’s conclusion that this was a tenancy at will. Instead, the two judges believed that the facts proved that a monthly tenancy existed. Having taken this position, the concurring judges made a statement that is relevant to the case now before us. The judges wrote that a monthly tenant is “entitled to full thirty days’ notice before the expiration of his monthly term____” Id., 83 Pa.Superior at 340.

Since the Robinson decision, there have been no other reported appellate decisions on the subject of the termination of an oral monthly tenancy. We see from the above three cases, however, that both at common law and under the Act of 1905, the landlord was required to give the tenant thirty days notice to quit prior to the expiration of the term. We conclude that the Landlord and Tenant Act of 1951 retains this requirement, for the Act specifies only three situations in which the landlord may give his tenant notice to vacate and one of those situations is “upon the termination of the term of the tenant....” In such a situation, the Act provides: “In case of the expiration of a term ... where the lease is for any term of less than one year ... the notice shall specify that the tenant shall remove within thirty days from the date of service thereof----” In other words, the thirty days runs from the date of service of the notice where the term has already expired.

'In appellant’s case, the landlord served the notice to quit in the middle of a term and demanded that appellant vacate the premises within thirty days, which date was in the middle of the next term. Under our interpretation of the Act of 1951, this was improper. Although the landlord in a monthly tenancy can serve a notice to quit prior to the termination of the term, Hollis and Drysdale, supra, the landlord cannot under these circumstances require the tenant to vacate in the middle of the next term.

Nevertheless, our inquiry does not end here, for the next question which must be addressed is of what effect was the herewithin notice to quit. At common law, a notice to quit’ which failed to give the tenant the requisite time to vacate was considered to be of no effect in terminating the tenancy, which would continue to run until properly terminated. The Restatement, however, has taken a different position on the matter. The Restatement states:

In the absence of controlling provisions in the lease ... if the date stated in the notice for termination is not the end of the period, the notice will be effective to terminate the lease at the earliest possible date after the date stated.

Restatement (Second) of Property § 1.5(f).

The reporter’s notes to this section make this observation:

It seems unduly technical to deprive a notice to terminate a periodic tenancy of any legally operative effect if it designates as a date of termination a date on which the tenancy cannot be terminated.

We are in agreement with the Restatement’s position and we hereby adopt it. As applied to appellant’s case, this means that although the notice to quit, delivered on November 8, 1978, was ineffective to terminate the tenancy on the stated date of December 10, 1978, was effective to terminate the periodic tenancy on December 30, 1978, which was the “earliest possible date after the date stated”.

This ruling will not affect the verdict and judgment entered in the instant matter, since the Agricultural Society did not file its action for a writ of ejectment until March 3, 1980, and the court did not reach a verdict until November 25, 1980. Therefore, there was no ejectment until well after appellant’s term had expired. Accordingly, the verdict and judgment of the court below can be affirmed.

Affirmed.

      . The Landlord and Tenant Act of 1951, the Act of 1951, April 6, P.L. 69, art. V, § 501, as amended by the Act of 1978, April 28, P.L. 202, No. 53, § 2(a) [1271] (Supp.1982.)

      . The other two situations are, as stated in the statute:
      (2) or upon forfeiture of the lease for breach of its conditions, (3) or upon the failure of the tenant, upon demand, to satisfy any rent reserved and due.
      The Landlord and Tenant Act of 1951, supra, 68 P.S. § 250.501.


author: HESTER, Judge: JOHNSON, Judge,

text:
    459 A.2d 815
    COMMONWEALTH of Pennsylvania, Appellant, v. James HARTFORD. COMMONWEALTH of Pennsylvania, Appellant, v. Edward DEMMER.
    Superior Court of Pennsylvania.
    Submitted May 19, 1982.
    Filed April 22, 1983.

      Johnson, J., filed dissenting opinion.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
    Leonard I. Sharon, Pittsburgh, for Hartford, appellee, at No. 658.
    Thomas W. Brown, Pittsburgh, for Demmer, appellee, at No. 660.
    Before HESTER, McEWEN and JOHNSON, JJ.
   HESTER, Judge:

This is an appeal by the Commonwealth from the granting of a motion to suppress.

The facts of the case are as follows:

On August 3, 1979, Detective Anthony Ransley of the Allegheny County Police, Narcotics Division, purchased several grams of cocaine from appellee James Hartford, at the appellee’s apartment located at 207 Castle Shannon Boulevard in Mount Lebanon, Pennsylvania. Despite diligent effort, Detective Ransley could not thereafter locate appellee Hartford for approximately five months. Appellee had moved from his Mt. Lebanon address and his telephone had been disconnected. Finally, on January 10, 1980, Ransley received a telephone call from an informant advising that Hartford might be at a certain address in Castle Shannon on Waverly Street. This call came to detective Ransley at approximately 6:00 p.m.

Ransley then proceeded to that address. It was a multiple-dwelling apartment building. He and Detective Duffy, who accompanied him, went to the garage portion of the building to see whether they could locate Hartford’s car. Upon spotting what appeared to be Hartford’s vehicle, they ran a check on the license number which confirmed their suspicion.

Upon receiving this information, the detectives went to the Castle Shannon Police Department and inquired whether the police knew the manager of the building. Also, the detectives wanted the Castle Shannon Police to assist them with the arrest of appellee Hartford.

The detectives and police then proceeded back to the apartments, located appellees’ names on the mailbox, and had the manager indicate which apartment was the appellees.

The detectives and police went to appellees apartment where, before the officers, had an opportunity to knock on appellees door, appellee Demmer opened the door. The officers then identified themselves and asked if they could enter. Appellee Demmer said “Come on in.” They entered, saw Hartford and another individual sitting on the living room floor. Detective Ransley proceeded to arrest Hartford and to read him his Miranda rights. He then noticed cocaine and assorted paraphernalia on the table at which Hartford and his companion were sitting. He accordingly promptly arrested Hartford and Demmer, on new charges, and one of the detectives again read their rights to both of them.

The detectives then inquired of Hartford and Demmer if they had any more drugs. Hartford and Demmer each gave to the detectives more cocaine which they had in other rooms. Hartford also told Ransley to proceed to search the apartment if he wished.

It is the drugs and drug paraphernalia thus seized by the officers that is the subject of the motion to suppress which was granted by the lower court. The Commonwealth in its appeal argues that there were exigent circumstances which validate the entry into the apartment and the arrest of Hartford, without a warrant, which led to the arrests at issue in this case.

We agree.

It is a basic principle of Fourth Amendment law that a search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable unless the police can show that it falls within one of a carefully designed set of exceptions based on the presence of exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Recognizing this, the Pennsylvania Supreme Court, in Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), noted several relevant considerations to be balanced in determining whether a warrantless arrest is valid: 1) the gravity of the offense; 2) a reasonable belief that the suspect is armed; 3) a showing of probable cause; 4) a reasonable belief that the suspect is within the premises sought to be entered; 5) a reasonable belief that the suspect will escape; 6) the time of entry; and 7) whether the entry was peaceable.

The lower court agreed that at least four factors are present to uphold the warrantless intrusion. These are: 1) the police had strong probable cause to arrest Hartford; 2) the police had good reason from the facts as set forth above to believe he lived there; 3) the entry was peaceable as Demmer let them in, and 4) the intrusion at 7:00 p.m. is considered a daytime entry.

However, the lower court viewed the following factors as weighing against the warrantless intrusion and thus concluded that the arrest was illegal: The crime was not one of violence; Detective Ransley had no reason to believe Hartford was armed; there was little need for swift apprehension as the crime had occurred on August 3, 1979, some five months before the arrest; and there was no indication that Hartford would escape if not apprehended immediately.

Our Supreme Court in both Williams and Commonwealth v. Wagner, 486 Pa. 548, 557-58, 406 A.2d 1026, 1031 (1979), in analyzing the criteria for warrantless arrests grounded its’ decisions on the swift apprehension factor, as illustrated from this passage from Wagner:

“The Commonwealth concedes that the theft involved herein was not a crime of violence and was not what is considered a grave offense. Trooper Lingenfelter had no reason whatsoever to believe appellant was armed and dangerous, even though in fact he was. Even more importantly, there was little need of swift apprehension. The theft had occurred some six months earlier and there was no indication that appellant would escape if not apprehended immediately.” (Emphasis added).

In the present case, we disagree with the lower court, for we believe that swift apprehension was strongly called for under the facts asserted at the suppression hearing. First, Detective Ransley had been attempting to locate appellee Hartford for approximately five months since the detective had made an initial purchase of cocaine from him on August 3, 1979. Despite diligent effort, Detective Ransley had failed to locate him. Finally, on January 10, 1980, Ransley received a telephone call from an informant stating that Hartford might be at a certain address in Castle Shannon.

After ascertaining that appellee Hartford’s automobile was parked at the Waverly Street premises, the detectives and police located appellees’ names on the mailbox and the manager indicate which apartment was the appellees.

At this point in the suppression hearing, Detective Ransley testified as follows:

Q. “After you ascertained that it was Hartford and Demmer, it was their name on the mailbox and the manager indicated to you which apartment was theirs, did you then think to go to a magistrate and obtain an arrest warrant for Mr. Hartford?
A. Yes, I did, but there was no magistrate available at that time of day.”

Based upon these set of facts, we disagree with the lower court’s conclusion that swift apprehension was not needed.

First, appellee Hartford had evaded the police investigation for over five months. Second, the detectives, in order to ascertain whether their “tip” was accurate, had already made their presence known to the manager of the building; and being that uniformed Castle Shannon police officers were assisting in locating appellee, it is quite possible that if the officers had waited until the following day to secure an arrest warrant, Hartford would have learned that the police had been at the apartments, and thus again would have evaded custody. Also, it is to be noted that drug dealers are known to be transients, in that, they consummate a deal and then move on to a different location. In fact, this is exactly what happened in the present case. Appellee Hartford had consummated a deal with Detective Ransley and had then evaded both the detective and his informant by moving to different locations over a five month period. Moreover, our Supreme Court in Williams has stated:

"... the late hour may underscore the delay (and perhaps impracticability of) obtaining a warrant, and hence serve to justify proceeding without one.” Williams, supra 483 Pa. at 299, 396 A.2d at 1180.

Thus, we hold that swift apprehension was an utmost necessity in this instance.

It must also be noted that appellee Demmer consented to the officers entering the apartment. Thus, the officers, once inside the apartment effectuating a lawful arrest of appellee Hartford, were rightfully in a position to view the contraband and devices on the coffee table near where appellee Hartford was arrested. The “plain view” doctrine is therefore applicable to the items on the coffee table. Commonwealth v. Clelland, 227 Pa.Super. 384, 323 A.2d 60 (1974).

Having been notified of their Miranda rights, appellees Hartford and Demmer nonetheless delivered cocaine to Detective Ransley on request. Therefore, this evidence was lawfully obtained.

The marijuana found during a subsequent search of Hartford’s room was also lawfully obtained. With few exceptions, an intrusion into a place of privacy may not be effected absent a warrant issued based upon probable cause, and one of those exceptions is when a criminal suspect consents to the search. Commonwealth v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980), cert. denied 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981). In the instant case, both appellees consented to a search of their apartment, having been notified that a search warrant had yet been obtained. Moreover, since the voluntariness of a suspect’s consent is determined by whether the consent was procured through force or other coercion (Morrison, supra, 275 Pa.Super. at 459-60, 418 A.2d at 1380), an assertion that appellees’ consent was not voluntary is without merit. None of the evidence, then, obtained incident to the warrantless yet lawful arrest of James Hartford and Edward Demmer should have been suppressed.

Order reversed and remanded for proceedings not inconsistent with this Opinion.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

In my view the trial court correctly granted the motion to suppress on the grounds that the entry into the apartment for the purpose of arresting Hartford for the sale of cocaine five months previously was illegal, and therefore the evidence seized at that time to support the charges for the second arrest of Hartford and Demmer should be suppressed as directly resulting from that illegal arrest. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). I therefore dissent.

In Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980), our supreme court held that a warrant-less arrest in the home is illegal except in certain specific circumstances.

The circumstances which may justify a warrantless arrest in the home are: (1) that a grave offense is involved, particularly a crime of violence, (2) that the suspect is reasonably believed to be armed, (3) that there is a clear showing of probable cause to arrest, (4) that there is reason to believe that the suspect is on the premises, (5) there is a likelihood that the suspect will escape, (6) there was a peaceable though non-consensual entry, and (7) whether or not the entry was made at night. Commonwealth v. Williams, 483 Pa. at 297-300, 396 A.2d at 1179-80.

The trial court and the majority of this panel of the superior court concluded, and I agree, that factors (3), (4), (6) and (7) would permit a warrantless entry in this case. But the trial court also concluded, as do I, that application of the other factors shifts the balance against a finding of legality for this warrantless arrest in the home, thus warranting suppression of the evidence seized as a result of the illegal entry.

The initial arrest of Hartford was for the sale, five months earlier, in Hartford’s apartment, of two grams of cocaine. At the suppression hearing on the charges involved in the second arrest Detective Ransley testified that he did not arrest Hartford at the time of the sale because he wanted to further the investigation by making other purchases from Hartford. N.T. June 30, 1980 at 4. About a month after the sale Detective Ransley was told by his informant that Hartford had moved. Then five months after the sale Ransley was told by the informant that Hartford was at the address in question in this appeal.

It appears that the only attempt Ransley made to contact Hartford during the five months was an unsuccessful telephone call as a result of which Ransley discovered that Hartford’s telephone was disconnected. The detective did not appear to have inquired from the telephone company whether or not there was a new listing for Hartford.

After being told by the informant of Hartford’s new whereabouts, the detectives did not attempt to obtain an arrest warrant before proceeding to the address, ostensibly because no magistrate was available at that hour (6-7 p.m.). They went to the address, and learned that Hartford was living there, apparently quite openly (his car was in the garage and his name on the mailbox). They still did not attempt to obtain an arrest warrant, but, having been pointed in the right direction by the manager, proceeded directly to Hartford’s apartment door. Then, when the door opened and the detectives asked if-they could enter, they went inside the apartment for the purpose of arresting Hartford for the first sale of cocaine. In the process of arresting Hartford they saw the drugs and drug paraphernalia. This prompted them to arrest Hartford and Demmer on new charges. It is these charges and the evidence connected with them which are the subject of this appeal.

The Commonwealth argues, and the majority agrees, that exigent circumstances existed in that the suspect might again flee.

I disagree.

I believe that the testimony at the suppression hearing indicates that the detective was not diligent in searching Hartford’s whereabouts. I also conclude that Hartford had simply moved rather than fled. And I strongly disagree that there were any exigent circumstances justifying the arrest without a warrant. On direct examination, when asked the purpose for going to the Waverly Street address, detective Ransley stated, “To see if Mr. Hartford was there. We were going to arrest him.” N.T. at 8. Once the detectives had seen Hartford’s vehicle in the garage, or his name on the mailbox, they should have taken no further action without first obtaining an arrest warrant. By entering the building and approaching Hartford’s door, the officers created their own arguably exigent circumstances. This is hardly the type of exigent circumstances which the courts envisage when they uphold warrantless arrests in the home'.

In United States v. Minick, 455 A.2d 874 (D.C.App.1983), the court decided that exigent circumstances excused a warrantless entry of a rape and murder suspect’s home within a few hours of the crime and shortly after police had obtained clear probable cause to arrest the suspect, because any further delay might lead to destruction of critical evidence on the suspect’s clothes and person. In Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979), application of the Williams factors (3), (4) and (7) weighed in favor of upholding the warrantless arrest of a theft suspect, but the fact that the crime was not one of violence and was committed six months previously led to the conclusion that swift apprehension was unnecessary. Furthermore, the suspect was not thought to be armed and the entry into the home was forcible. Our supreme court concluded that the arrest was illegal, and reversed the judgment of sentence. In Commonwealth v. Eliff, 300 Pa.Super. 423, 446 A.2d 927 (1982), the crime, as here, was unlawful delivery of controlled substances, thus, though a felony, it was not a crime of violence. Also, it had been committed four months earlier. There was no indication that the suspect would escape if not captured immediately, and no indication that he was armed. This court, applying the Williams factors to a “knock and announce” case, concluded that swift apprehension was not necessary and that exigent circumstances were not present. In Commonwealth v. Pytak, 278 Pa.Super. 476, 420 A.2d 640 (1980), application of the seven factors led to an upholding of the warrantless entry. The crime was kidnapping and robbery; the suspect was reasonably believed to be armed; there was clear probable cause to arrest him; there was information from a reliable informant that the suspect was planning to leave one hour and fifteen minutes later; the magistrate could not be found after diligent attempt was made to find him; there was a non-forcible daylight entry. See also Commonwealth v. Fladger, 263 Pa.Super. 538, 398 A.2d 707 (1979), where, in a dissenting opinion, Judge SPAETH concluded that exigent circumstances did not exist where nothing indicated that the suspect, the superintendent of the apartment building where the crime (sodomy) took place against a tenant, was likely to escape.

Against the background of the above case law I cannot but conclude that the trial court was correct, and that its decision to suppress the evidence seized after the illegal entry into the apartment should be affirmed.

      . This first arrest was on charges related to the earlier sale of cocaine to Detective Ransley.

      . The charges for this second arrest were possession of a controlled substance, 35 P.S. § 780-113(a)(16) (a misdemeanor); possession with intent to deliver, 35 P.S. § 780-113(a)(30) (a felony); and criminal conspiracy, 18 Pa.C.S.A. § 903(a)(1) (a felony).


author: CERCONE, President Judge: ROWLEY, Judge,

text:
    459 A.2d 821
    COMMONWEALTH of Pennsylvania v. William E. SINGLETON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 7, 1982.
    Filed April 29, 1983.
    Rowley, J., filed dissenting statement.

      Stephen Gary Welz, Reading, for appellant.
    George C. Yatron, District Attorney, Reading, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CAVANAUGH and ROWLEY, JJ.
   CERCONE, President Judge:

Appellant, William E. Singleton, appeals from the judgment of sentence following his conviction for Theft by Deception, by which he was sentenced to pay a fine of $100.00, restitution of $150.00, and to undergo a period of incarceration of from six to twenty-four months. He argues on appeal that the Commonwealth failed to establish due diligence when it sought a petition to extend time pursuant to Pa.R.Crim.P. 1100, and, that, therefore, the lower court erred when it granted the Commonwealth’s petition. Finding merit in his argument, we reverse.

A criminal complaint on the instant charge was filed against appellant on January 31, 1980. Numerous related and unrelated informations were filed against appellant. This case was listed to be tried during the June jury trial sessions of Berks County, but remained untried owing to an overcrowded court calendar. It was rescheduled for a trial date in July, but counsel for appellant continued it until the August term; he alleged that the jury panel was tainted and that he needed more time in which to prepare his case. July 29, 1980 was the rúndate of the 180 day period within which appellant was to be tried, and on that date the Commonwealth filed a petition to extend time.

On August 6, 1980, the lower court granted the Commonwealth’s petition to extend time and ordered that three of appellant’s criminal actions be listed for trial in the August sessions, between August 11 and 22, in the order in which the Court named them. The instant action was listed last. The first case was tried during the week of August 11; the second began on August 18 and the jury returned a verdict the next day. Evidence elicited at a hearing pursuant to the Commonwealth’s second petition for extension of time under Rule 1100 established that the prosecutor who was assigned to try the instant case in August went on vacation on August 20, 1980. Additionally, appellant was available from August 19 for the duration of the trial term, August 22, 1980. However, a jury for the instant case would have been chosen from the same panel which provided the jury which convicted appellant on August 19. For this reason, the lower court granted the Commonwealth’s second petition and ordered that

despite due diligence of the Commonwealth, the trial of the above-captioned cases could not commence and to avoid more than one trial jury being selected from the same jury panel that one trial of each of the above-captioned cases or one trial of any two or more of the above-captioned consolidated cases be held each week during the successive weeks of jury trials until all the cases are disposed of, beginning with case No. 80044001 [the instant case] during the week of September 8, 1980, unless otherwise ordered by the Court for cause shown upon application of either party.

It is this extension which appellant argues violated his right under Rule 1100 to a speedy trial.

The scope of review on appeal from an order granting a petition to extend requires the appellate court to consider the evidence presented by the Commonwealth and so much evidence as presented by the defense as fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Mitchell, 472 Pa. 553, 564, 372 A.2d 826, 831 (1977). Pa.R.Crim.P. 1100(c) provides that a petition for an extension of time “shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.” To prove by a preponderance of the evidence that it has applied due diligence, the Commonwealth must take every step that it could reasonably be expected to take in trying to bring a defendant to trial within the prescribed period. Commonwealth v. Brinton, 275 Pa.Superior- Ct. 304, 311, 418 A.2d 734, 737 (1980); Commonwealth v. Fanelli, 292 Pa.Superior Ct. 100, 436 A.2d 1024 (1981).

Evidence adduced at the hearing revealed that the Commonwealth sought a second extension for two basic reasons: (1) unavailability of the prosecutor because he was leaving on vacation on August 20; and (2) the same jury panel would have provided both the jury for the instant case and that of appellant’s immediately preceding jury.trial.

It is clear that by order of court, three of appellant’s cases were to be tried beginning on August 11 and no later than August 22. When asked by the hearing court why the instant case was listed last of the three to be tried in August, the assistant district attorney explained that he requested that the other two cases be listed prior to the instant case because one was a felony and the other was a misdemeanor of the first degree. To avoid the risk of losing those two cases because of Rule 1100, he requested that the instant charge, a misdemeanor of the second degree, be listed last. No evidence was offered as to the rundates of the other two charges. In addition, no reason was advanced by the Commonwealth as to why a substitute assistant district attorney was not assigned to the instant case to insure compliance with the original order. As this court recently explained in reversing a lower court’s order on Rule 1100 grounds,

Although unavailability of defense counsel will serve as an exclusion of time under Rule 1100(d)(3)(i), the unavailability of the prosecutor is not listed as an exclusion in determining the period for commencement of trial. On the contrary, the prosecution must demonstrate due diligence in bringing the accused to trial, and, when an extension is granted, trial must be scheduled for the earliest date consistent with the court’s business.

Commonwealth v. Ryan, 306 Pa.Superior Ct. 159, 170, 452 A.2d 264, 269 (1982). We cannot find any authority for a showing of due diligence based on the unavailability of the prosecutor. In fact, whether unavailability of a person for trial will nevertheless preserve the Commonwealth’s evidence of due diligence rests on whether the person was within the Commonwealth’s control.

When witnesses become unavailable toward the end of the Rule 1100 time period — whether through vacation, illness, or other reasons not within the Commonwealth’s control, the Commonwealth is prevented from commencing trial within the requisite period despite its due diligence and an extension of time is warranted.

Commonwealth v. Sharp, 287 Pa.Superior Ct. 314, 430 A.2d 302 (1981).

In the instant case, appellant was ready and available to be tried on August 19, 1980. It was the unavailability of the prosecutor on the instant case which prevented the case from commencing prior to the expiration of the period originally extended by order of court on August 6, 1980. Regarding the unavailability of the prosecutor, we find that the Commonwealth did not meet its burden of showing due diligence.

Another reason which was advanced by the Commonwealth at the second Rule 1100 hearing was the fact that to have proceded to trial in the week of August 18, would have required that a second jury be chosen from the same panel as provided the jury for the trial on appellant’s immediately preceding charge. While we note that appellant himself obtained a continuance on some of his charges for this stated reason, in addition to his allegation that he needed more time for preparation, we do not find that such a reason warrants an extension by the Commonwealth.

The original court extension ordered that three of appellant’s cases, including the instant one, be tried between August 11 and 22, two full weeks. Only two full panels would have been available for the three separately tried cases, at any rate. The Commonwealth at no time opposed this initial order. Absent allegations of how drawing two juries from the same panel presents such dangers to the trial process to warrant an extension, we cannot find that this fact illustrated that the Commonwealth exerted due diligence in bring appellant to trial in time.

For the above reasons, the order of the lower court is reversed and appellant is discharged.

ROWLEY, J. files a dissenting statement.

ROWLEY, Judge,

dissenting:

I respectfully dissent. I would affirm on the opinion of Judge Saylor dated June 11, 1981 and the record statement of President Judge W. Richard Eshelman at the conclusion of the extension hearing on September 5, 1980. See Com. v. Sutherland, 305 Pa.Super. 1, 451 A.2d 1 (1982).

      . 18 Pa.C.S.A. § 3922.

      . To establish a Rule 1100 claim, a defendant must either file a motion to dismiss the charges against him prior to trial or contest the Commonwealth’s petition to extend the time for trial. Commonwealth v. McFadden, 300 Pa.Superior Ct. 299, 446 A.2d 624 (1982).

      . In its petition for extension of time, the Commonwealth originally gave as its reason for extending time, the unavailability of the defendant because of his involvement in another trial. This was shown at the hearing to be erroneous.

      . In Commonwealth v. Hall, 267 Pa.Superior Ct. 204, 406 A.2d 765 (1979), appellant argued that the lower court erred in not granting him a continuance because of possible prejudice among the panel of venirepersons from which his jurors were chosen. In a jury trial, after the verdict of guilty was rendered, the judge, reading the jurors appellant’s conviction record for robberies, congratulated them. Opining that these jurors would return to the general panel and discuss this with them, appellant requested a continuance. This Court affirmed the refusal for continuance; we noted that there was no evidence that the second jury would be chosen from the same panel as the first. In the instant case, the Commonwealth has not proved the inherent dangers of the situation it was challenging, as was evident in Hall, supra.