author: BROSKY, Judge:

text:
    553 A.2d 992
    COMMONWEALTH of Pennsylvania v. William A. TROY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1988.
    Filed Jan. 13, 1989.
    Reargument Denied Feb. 24, 1989.

      Ronald L. Collins, Clearfield, for appellant.
    Before BROSKY, ROWLEY and MONTEMURO, JJ.
   BROSKY, Judge:

This appeal lies from the judgment of sentence following appellant’s conviction by a jury of involuntary deviate sexual intercourse, burglary, criminal trespass, indecent assault and defiant trespass.

On appeal, appellant raises three issues for our consideration: (1) whether he can be convicted of the offense of involuntary deviate sexual intercourse if he has been acquitted of the offense of rape; (2) whether the trial court erred in permitting the Commonwealth to impeach its own witness by the use of a prior inconsistent statement; and (3) whether the trial court committed error in refusing to permit appellant to inquire into or to present evidence of another person seen in the vicinity of the victim’s residence or to inquire into allegations that the victim had previously claimed to have been raped. Finding that the record renders appellant’s contentions unavailing, we affirm.

As his first issue, appellant asserts that since he was acquitted of rape (18 Pa.C.S.A. § 3121(2)), his acquittal for involuntary deviate sexual intercourse (IDSI) should logically obtain, as well, since the conduct giving rise to the charges was deviate in nature and constituted but one act.

The two statutory provisions under which appellant was charged read, in part, as follows:

§ 3121. Rape.
A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution
§ 3123. Involuntary deviate sexual intercourse A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution,

Additionally, the legislature has defined deviate sexual intercourse for the purpose of the conduct charged instantly as “[s]exual intercourse per os or per anus between human beings who are not husband and wife____” 18 Pa.C.S.A. § 3101. The statutory definition of “sexual intercourse,” “[i]n addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration, however slight; emission is not required.” Id. From the foregoing, the absence of proof of penetration, not the nature of the sexual acts committed upon the victim, appeared to have been the touchstone of appellant’s acquittal of the instant rape charge.

The crime of involuntary deviate sexual intercourse occurs when the actor, by physical compulsion or threats thereof, coerces the victim to engage in acts of anal and/or oral intercourse. Commonwealth v. Perrin, 484 Pa. 188, 398 A.2d 1007 (1979). The deviate conduct for which appellant stands convicted involves the forcible insertion of his penis into the mouth and rectum of victim. In Commonwealth v. Bruner, 364 Pa.Super. 156, 527 A.2d 575 (1987), allocatur denied, 517 Pa. 614, 538 A.2d 497 (1988), this court held that involuntary deviate sexual intercourse included acts of forcing the perpetrator’s penis into the mouth of the victim and compelling the victim to place his penis into the mouth of the assailant. In Commonwealth v. King, 290 Pa.Super. 563, 434 A.2d 1294 (1981), we upheld a conviction for involuntary deviate sexual intercourse based upon conduct encompassing anal rape and the victim’s forced performance of oral-genital intercourse upon her attacker.

That the conduct here in question comes within the ambit of Section 3123 of the Crimes Code (proscribing the commission of involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123, supra) and the legislative definition assigned to this type of transgression is beyond peradventure. Accordingly, the legislature has quite obviously made a distinction between the two types of conduct, as evidenced by the differences in the statutory definitions for sexual intercourse and deviate intercourse (see 18 Pa.C.S.A. § 3101, supra) and their separate treatment in the statutory scheme encompassing crimes against the person (see 18 Pa.C.S.A. §§ 3121 and 3123, supra).

To give appellant’s argument its final repose, we turn to this court’s decision in Commonwealth v. Romanoff, 258 Pa.Super. 452, 392 A.2d 881 (1978). Romanoff was charged with both rape and IDSI. The latter act involved the insertion of his penis into the victim’s mouth. The trial court granted Romanoff’s Motion to arrest the judgment of conviction on the rape charge because the evidence failed to establish penetration. On appeal, Romanoff made the identical argument which appellant now presents, i.e., Romanoff asserted that rape and IDSI comprise the same criminal elements and that the statutory definitions of “sexual intercourse” and “deviate sexual intercourse” rendered the two crimes one offense under the circumstances. As so rationalized, Romanoff concluded that his conduct amounted to only one criminal act. This argument failed to persuade then as it does now. We wrote:

We are not impressed by appellant's refusal to acknowledge that deviate sexual intercourse differs from sexual intercourse, as it is considered in its ordinary meaning, because of its aspect of deviateness. What may be an ambiguity in the definitions of actions made criminal will not cloud our applying common sense understanding to the facts. It was not error for appellant to have been indicted and tried for the instant two crimes, albeit that proof of the rape charge did not sustain conviction on that charge.

258 Pa.Super. at 460, 392 A.2d at 884-85; (emphasis in text).

Appellant attempts to distinguish Romanoff on the basis that the accused there was charged with rape for the act of forcing his penis into the victim’s vagina and with IDSI for placing his penis in the victim’s mouth. By way of contrast, appellant asserts that both transgressions charged against him were deviate and constituted but one act. However, this represents a difference without a distinction for, as Romanoff acknowledges, proof of rape requires proof of the element of penetration without which an acquittal on the rape charge must follow or a guilty verdict thereon must be arrested. We are loathe to speculate upon the paths which jurors’ thought processes travel toward their ultimate destination of verdict. Here, however, where the evidence was otherwise sufficient to support appellant’s conviction for IDSI, we are inclined to agree with the reasoning of the Romanoff court that it was the absence of proof of penetration which defeated the Commonwealth’s prosecution of the instant rape charge. While both statutory definitions embrace deviate acts, only one — sexual intercourse in the ordinary sense — requires proof and contains the element of penetration.

Insofar as appellant’s argument would attempt to convey a factual inconsistency in the verdicts acquitting him of rape and convicting him of IDSI, the law does not require consistency in criminal verdicts so long as the evidence is sufficient to support the guilty verdict rendered. Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984). Here, the evidence was more than sufficient to sustain the conviction of IDSI.

Next, appellant alleges that the Commonwealth was impermissibly allowed to impeach its own witness with a prior inconsistent statement implicating appellant in violation of Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). In Brady, the Supreme Court held that a prior inconsistent statement of a nonparty witness may be used as substantive evidence, not merely to impeach the witness’ credibility, if that witness is available for cross-examination at that judicial proceeding and the prior out-of-court statement was tendered under highly reliable circumstances. It is this latter prong of the Brady standard which appellant claims was violated. The specific “highly unreliable” circumstance under which appellant complains the initial statement was given was the witness’ alleged ingestion of penicillin which both appellant in his Brief and the witness at trial stated caused the latter to become confused and forgetful. The witness’ initial statement placed appellant at the victim’s residence on the date and at the time of the sexual assault. A later statement, which coincided in substance with the witness’ testimony at trial, did not. At trial, however, Patrolman Dohner, to whom the initial statement had been given, testified that the witness was positive of the date and time when appellant had left her residence to see the victim and that other members of the witness’ family were present when she gave Patrolman Dohner her first statement. This circumstance, we believe, rendered the proffering of the initial statement sufficiently reliable under Brady. Moreover, and more importantly, as Brady recognized, appellant’s counsel had the opportunity to vigorously cross-examine this witness with respect to comparisons between her initial statement and her later changed statement which her trial testimony tracked. The jury had an adequate opportunity to observe this witness’ demeanor as she testified in explanation of the reasons for this inconsistency and, therefore, was able to weigh her credibility accordingly. Hence, under Brady, no error occurred here.

Appellant’s final issue challenges the trial court’s refusal to permit him to inquire into or to present evidence of some other unknown, unidentified tall, blond person allegedly seen in the area of the victim’s apartment at the time of the sexual assault to demonstrate that this elusive individual, instead of appellant, may have been the perpetrator of the assault. Appellant also claims that he could have presented a witness who stated that the victim told this unidentified witness that the former was meeting someone on the night in question, again, only to establish that someone else may have committed the subject offense. Further, appellant wished to present evidence that the victim stated that she had been previously raped while residing in New Jersey. The purpose of this offer, appellant claims, was to attack her credibility, not to demonstrate prior sexual activity.

Both parties and the trial court refer to the latter’s disallowance of this evidentiary offer pursuant to 18 Pa.C. S.A. § 3104, commonly known as the Rape Shield Law. That statute bars evidence of the victim’s past sexual conduct, as well as opinion and reputation evidence bearing upon such conduct, unless it was with the accused and the accused has raised the defense of consent. Appellant has not raised this defense and, thus, the proffered evidence is irrelevant under the facts of the case. See Commonwealth v. Folino, 293 Pa.Super. 347, 439 A.2d 145 (1981). Even taking at face value appellant’s reason for the offer, i.e., that he only wished to present this evidence in aid of his alibi defense, he has supplied this court with only vacuous assertions. He has not identified the witness who would, purportedly, testify that the victim stated that she was meeting someone that night, nor did he produce at trial or otherwise identify either the tall, blond man allegedly seen in the vicinity of the victim’s apartment at the time and on the date in question or a witness claiming to have seen this elusive individual.

With regard to the allegation of the New Jersey rape, appellant’s Brief argues, “[T]he defense was not, again, offering that for the purpose of showing sexual conduct on the part of the victim, but rather to attack credibility.” At 14. If this is so, appellant’s assertions are made once again in a vacuum. He has not delineated for us the specific evidence which he wished to present in this regard. This matter is also not a proper focus of inquiry pursuant to 18 Pa.C.S.A. § 3104(a). Appellant’s defense, we note once again, was that of alibi. Any evidence sought to be presented under the Rape Shield Law would be inconsistent with and render his proffer of alibi a nullity. It would not have gone to his exculpation in any measurable sense. See Commonwealth v. Coia, 342 Pa.Super. 358, 492 A.2d 1159 (1985).

Judgment of sentence affirmed.

ROWLEY and MONTEMURO, JJ., concur in the result.

      . Both the trial court in its Opinion and the Commonwealth perceive appellant’s first issue in terms of a double jeopardy argument. We do not read appellant’s argument as raising a double jeopardy issue, nor do we believe that it is even suggested by the Statement of Question prefacing his appellate argument on this issue. See Pa.R.A.P. 2116(a). The argument that appellant does raise has been preserved as Allegation numbers two and three of his post-verdict Motions and as his first Statement of Reasons for Appeal filed pursuant to Pa.R.A.P. 1925(b).
      By way of contrast, appellant preserves a separate and specific double jeopardy issue as Allegation number four of his post-verdict Motions which he has, nevertheless, failed to raise and argue before this court. The prohibition against being placed twice in jeopardy protects against a second prosecution for the same offense after acquittal or conviction and prevents multiple punishments for the same offense. Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988). Double jeopardy acts as a bar to double prosecutions only for a single offense. Commonwealth v. Downs, 334 Pa.Super. 568, 483 A.2d 884 (1984). The test for determining whether a criminal act constitutes a single offense for double jeopardy purposes is whether the act violates two different statutory provisions. If so, a double jeopardy problem does not arise when one of the statutory provisions violated requires proof of an additional fact which the other does not. Id., citing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
      Applying these principles to the facts at bar, appellant was, as we have noted in the text, charged with two distinct statutory offenses, viz: rape (18 Pa.C.S.A. § 3121(2) and IDSI 18 Pa.C.S.A. § 3123(2)). When comparing the statutory definition for ordinary sexual intercourse with that given to deviate sexual intercourse, we see that the legislature has added the element of penetration to the former. Under the Brown/Blockburger analysis, a successful rape prosecution is not complete without proof of the element of penetration. To obtain a conviction for IDSI, proof of commission of the deviate act, itself, is sufficient. Here, the Commonwealth's prosecution of appellant for rape failed, we surmise, because of the absence of sufficient proof of penetration. Appellant’s conviction for IDSI is valid, however, and is not precluded by considerations of double jeopardy for the reasons set forth above. See Commonwealth v. Romanoff, 258 Pa.Super. 452, 392 A.2d 881 (1978).

      . Both the trial court and the Commonwealth urge waiver of this issue because of the failure of appellant to file a Motion and offer at the time of trial concerning the victim’s past sexual conduct. This motion and offer are required in writing pursuant to 18 Pa.C.S.A. § 3104(b). However, a Motion and offer under this subsection is proper only if the exception recognized under subsection (a) thereof may become relevant to an accused’s defense under the facts of a particular case. The exception to the nonadmissibility of a victim’s prior sexual conduct found in 18 Pa.C.S.A. § 3104(a) provides: ”[E]vidence of the alleged victim’s past sexual conduct with the defendant where the consent of the alleged victim is at issue [shall be admissible if] such evidence is otherwise admissible pursuant to the rules of evidence.” The Motion and offer, if filed here, would not have been cognizable under the statutory exception set forth above. Appellant did not raise the defense of the victim’s consent. See Commonwealth v. Folino, 293 Pa.Super. 347, 439 A.2d 145 (1981). Such an allegation, moreover, would have been inconsistent with the defense theory of alibi. See Commonwealth v. Coia, 342 Pa.Super. 358, 492 A.2d 1159 (1985).


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    553 A.2d 998
    COMMONWEALTH of Pennsylvania, Appellant, v. Philip N. TOANONE, Appellee.
    Superior Court of Pennsylvania.
    Argued April 7, 1988.
    Filed Jan. 19, 1989.

      Joseph J. Mittleman, Assistant District Attorney, Media, for Com., appellant.
    Edward J. Zetusky, Jr., Chester, for appellee.
    Before WIEAND, BECK and MELINSON, JJ.
   BECK, Judge:

This is an appeal by the Commonwealth from an order suppressing evidence relating to the charge that Philip N. Toanone operated a motor vehicle while under the influence of alcohol. We reverse.

The relevant facts are not in dispute. On January 8, 1987, at approximately 8:30 P.M., Officer Donahue of the Springfield Township Police was waiting in his police car at a traffic light on Baltimore Pike when he was approached by Mr. Gerald Plasmeier. Mr. Plasmeier stated that the car he was driving had just been struck by a white Lincoln Continental which was also waiting at the traffic light. Shortly afterward, Officer Donahue received a radio report of a hit and run accident involving a car with a description which matched the white Lincoln Continental. After following the Lincoln Continental for several blocks, Donahue stopped the vehicle and asked the driver, defendant Philip Toanone, for identification. While Donahue was examining the defendant’s driver’s license, owner’s card, and insurance information, two other police cars arrived on the scene, one of which was driven by Officer Thomas J. Hannigan. Hannigan had previously received a report of an incident in the area involving a drunk driver, but he did not know whether this incident was connected with the hit and run accident that Donahue was investigating.

After conferring with Officer Donahue, Officer Hannigan asked the defendant to step out of his vehicle and answer some questions. When the defendant left the car, Hannigan noticed that the defendant was unsteady on his feet and smelled of alcohol. Hannigan then administered field sobriety tests. He initially asked the defendant about his educational background, and the defendant said that he had graduated from high school. Hannigan then instructed the defendant to recite the alphabet; the defendant tried to comply but could not remember past the letter “W”. Hannigan next asked the defendant to stand on one leg and count to ten; the defendant was unable to maintain his balance. At the conclusion of the sobriety tests, Hannigan arrested the defendant and transported him to the police station where he first received Miranda warnings.

Defendant was charged with driving while under the influence of alcohol, failing to give information and render aid following an accident, and other violations of the Motor Vehicle Code. See 75 Pa.Cons.Stat.Ann. §§ 3731, 3744 (Purdon 1977 & Supp.1988). He filed a motion to suppress, and on July 3, 1987, Officers Donahue and Hannigan appeared and testified at a suppression hearing before the Court of Common Pleas of Delaware County. The court concluded that the police had violated defendant’s constitutional rights, and issued an order prohibiting the use at trial of the evidence obtained by the police. The Commonwealth filed a timely appeal to this court. Since the Commonwealth has certified in good faith that the suppression order if given effect would substantially handicap or terminate its prosecution of the defendant, we have jurisdiction to entertain this appeal. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Slovikosky, 374 Pa.Super. 441, 543 A.2d 553 (1988).

Our standard of appellate review is well established.

In reviewing the findings of a suppression court where the Commonwealth is appealing, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (plurality opinion). While we are bound by the lower court’s findings of fact if supported by the record, we are not bound by the court’s legal conclusions which are drawn from the facts of the case. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).

Commonwealth v. Lagana, 517 Pa. 371, 375-76, 537 A.2d 1351, 1353-54 (1988). See also Commonwealth v. Robinson, 518 Pa. 156, 541 A.2d 1387 (1988); Commonwealth v. Stine, 372 Pa.Super. 312, 539 A.2d 454 (1988).

We do not agree with the legal conclusions of the trial court. The court suppressed evidence of the sobriety tests on alternative grounds. We shall address both of the arguments advanced in favor of suppression.

I.

The suppression court first attempted to support its order by stating: “Neither investigating Officer had any legal Probable Cause to proceed beyond an accident investigation to a driving under the influence investigation.” The court apparently reasoned that since the officers did not have probable cause to believe that the defendant was intoxicated at the time they stopped his vehicle, they could not direct the defendant to leave his car and perform sobriety tests. In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), however, the United States Supreme Court held that “once a motor vehicle has been lawfully [detained] for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” Id. at 111 n. 6, 98 S.Ct. at 333 n. 6. Thus, once Officer Donahue had lawfully stopped the defendant’s car because of the defendant’s involvement in a hit and run accident, Officer Hannigan was justified in ordering the defendant to stand outside his vehicle.

When the defendant left the car, his unsteady walk and the smell of alcohol on his breath alerted the police that defendant may have committed the misdemeanor of driving while intoxicated. Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police may restrict an individual’s freedom of movement for a limited period of time in order to conduct an investigation when specific and articulable facts give rise to a reasonable suspicion of criminal activity. See Commonwealth v. Elliott, 376 Pa. Super. 536, 545, 546 A.2d 654, 658 (1988). Since Officer Hannigan had good reason to believe that defendant may have been drunk, he was justified in asking the defendant to perform the sobriety tests. Furthermore, defendant’s poor performance of the tests provided probable cause for a lawful arrest for driving under the influence of alcohol.

The defendant attempts to distinguish Pennsylvania v. Mimms, supra, by arguing that a policeman may only order a driver out of his car when the policeman has a specific reason to believe that the individual driver is armed and dangerous. We recently rejected a similar claim in Commonwealth v. Elliott, supra. The Mimms Court emphasized the overall danger which the police face when approaching automobiles during the course of their duties, and balanced this danger against the limited intrusion on privacy which results from asking a person who has been lawfully stopped to stand outside his car for a brief period. See Pennsylvania v. Mimms, 434 U.S. at 110-111, 98 S.Ct. at 333. In the view of a majority of United States Supreme Court justices, an individualized inquiry into the severity of the threat posed by a each particular driver is not required. See New York v. Class, 475 U.S. 106, 115, 106 S.Ct. 960, 966, 89 L.Ed.2d 81 (1986).

Defendant also emphasizes in his appellate brief that Pennsylvania v. Mimms was decided under the fourth amendment to the federal constitution. Article I, section 8 of the Pennsylvania Constitution provides an independent basis for protecting the citizens of this Commonwealth against unreasonable searches and seizures. See, e.g., Commonwealth v. Blystone, 519 Pa. 450, 463, 549 A.2d 81, 87 (1988). In Commonwealth v. Elliott, however, we recently reversed a suppression order which was inconsistent with Pennsylvania v. Mimms without determining whether the state constitution guarantees additional rights for Pennsylvania motorists. The Elliott opinion states:

We note that the state, under its own constitution, “has the power to impose standards on searches and seizures higher than those required by the Federal Constitution.” Commonwealth v. DeJohn, 486 Pa. 32, 43, 403 A.2d 1283, 1288 (1979). However, where it is not clear from the face of the trial court’s opinion whether it is based on the state or federal constitutional provision, we will assume that the trial court decided the case the way it did under the mandate of federal law. Accord Michigan v. Long, 463 U.S. 1032, 1042, 103 S.Ct. 3469, 3477, 77 L.Ed.2d 1201 (1983). In the instant case there is nothing in the trial court’s opinion which indicates anything other than reliance on federal constitutional principles.

376 Pa.Super. at 545 n. 5, 546 A.2d at 658 n. 5.

Here, as in Elliott, we shall assume that the trial court based the suppression motion solely on federal grounds since the court did not cite to either the federal or state constitutions in its conclusions of law. This does not mean that we do not have the power to decide the defendant’s state constitutional claim, and it is conceivable that defendant’s state constitutional challenge might prevail. An appellate court may affirm a trial court order on a basis other than that relied upon by the trial court. Gerace v. Holmes Protection of Philadelphia, 357 Pa.Super. 467, 471-72, 516 A.2d 354, 357 (1986). Therefore, this court could consider the state constitutional claim in order to determine if this claim provides an alternative basis for affirming the trial court’s order.

Nevertheless, we believe that there is good reason to refrain from addressing the state constitutional question. Although the defendant cited the state constitution in passing in his suppression motion, the scope and applicability of article I, section 8 of the Pennsylvania Constitution was not argued by the parties in the court below and was not briefed by the Commonwealth on appeal. Moreover, since we deal here with the Commonwealth’s appeal of a suppression motion, our ruling today may not finally dispose of the litigation between the parties. We are reluctant to decide an unsettled question of constitutional law on appeal from an order which may not terminate litigation, especially since we have not had the benefit of the trial court’s insights on the question or of the arguments of both parties on the question. Therefore, we shall not reach the merits of the defendant’s state constitutional claim at this juncture. Cf. Mt Lebanon v. County Board of Elections, 470 Pa. 317, 368 A.2d 648 (1977) (court should not decide constitutional issue unless absolutely necessary). However, in the event that the defendant is successfully prosecuted and convicted, he may reassert this claim by specifically preserving in post-trial motions and on appeal the question of whether the doctrine of Pennsylvania v. Mimms is contrary to article I, section 8 of the Pennsylvania Constitution.

II.

The suppression court’s alternative ground for its order was that the police violated the defendant’s right against self-incrimination by questioning the defendant and asking him to recite the alphabet without administering Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Testimonial evidence which the police obtained after wrongfully failing to give Miranda warnings must be suppressed. See, e.g., Commonwealth v. Benson, 280 Pa.Super. 20, 29, 421 A.2d 383, 387 (1980). However, Miranda warnings need be given only when a defendant is subjected to interrogation while in custody. See Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. The suppression court found that under Commonwealth v. Bruder, 365 Pa.Super. 106, 528 A.2d 1385 (1987), the defendant was in custody at the time when his vehicle was stopped by the side of the road. Although the court correctly applied the standard for custody developed in Commonwealth v. Bruder, the Bruder decision was recently overruled by the United States Supreme Court. Pennsylvania v. Bruder, — U.S. —, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988).

In Bruder, a patrolman stopped a car which passed through a red light and noticed that the driver seemed intoxicated. After asking the driver to recite the alphabet and walk in a straight line, the patrolman arrested the driver and read him Miranda warnings. The driver was convicted of operating a motor vehicle while under the influence of alcohol and he appealed his judgment of sentence. A divided panel of the Superior Court reversed.

The Superior Court majority in Bruder acknowledged that in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the United States Supreme Court had previously ruled that the roadside questioning of a driver did not rise to the level of custodial interrogation. However, the majority reasoned that since McCarty did not set forth a bright line test for deciding when Miranda applies to traffic stops, this court is “afforded a measure of flexibility in deciding exactly when a suspect has been taken into custody.” 365 Pa.Super. at 111, 528 A.2d at 1387. The majority also noted that in Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980), the Pennsylvania Supreme Court had found that a defendant who was questioned by state troopers at the scene of a accident was in custody for purposes of Miranda. The majority then proceeded to find that appellant was in custody while performing the sobriety tests since “Bruder reasonably believed that his freedom of action had been restricted.” 365 Pa.Super. at 112, 528 A.2d at 1388. Finally, the majority held that the recitation of the alphabet was communicative evidence which should have been preceded by Miranda warnings.

The Commonwealth sought to appeal the Superior Court decision to the Pennsylvania Supreme Court which denied allocatur. 518 Pa. 635, 542 A.2d 1365 (1988). The Commonwealth then sought review in the United States Supreme Court. That Court granted the Commonwealth’s petition for certiorari and filed a per curium opinion on October 31, 1988 reversing the Superior Court. The per curium opinion states:

In Berkemer v. McCarty, supra, which involves facts strikingly similar to those in this case, the Court concluded that the “noncoercive aspect of ordinary traffic stops prompts as to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.” Id., [468 U.S.] at 440 [104 S.Ct. at 3150]. The Court reasoned that although the stop was unquestionably a seizure within the meaning of the Fourth Amendment, such traffic stops typically are brief, unlike a prolonged station house interrogation. Second, the Court emphasized that traffic stops commonly occur in the “public view,” in an atmosphere far “less ‘police dominated’ than that surrounding the kinds of interrogation at issue in Miranda itself.” Id., at 440, 104 S.Ct. [at 3150] (citing California v. Beheler, 463 U.S. 1121, 1125, 77 L.Ed.2d 1275, 103 S.Ct. 3517 [3520] (1983).) Accordingly, he was not entitled to a recitation of his constitutional rights prior to arrest, and his roadside responses to questioning were admissible.
The facts in this record, which Bruder does not contest, reveal the same noncoercive aspects as the Berkemer detention: “a single police officer ask[ing] respondent a modest number of questions and requestpng] him to perform a simple balancing test at a location visible to passing motorists.” 468 U.S., at 442, 104 S.Ct. [at 3151] (footnote omitted). Accordingly, Berkemer’s rule, that ordinary traffic stops do not involve custody for purposes of Miranda, governs this case.

— U.S. at—, 109 S.Ct. at 206-07, 102 L.Ed.2d at 176-77 (footnotes omitted).

The Court added the following commentary in a footnote:

Reliance on the Pennsylvania Supreme Court’s decision [in] Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980), to which we referred in Berkemer, see 468 U.S., at 441, and n. 34, 104 S.Ct. [at 3151, and n. 34] is inapposite. Meyer involved facts which we implied might properly remove its result from Berkemer’s application to ordinary traffic stops; specifically, the motorist in Meyer could be found to have been placed in custody for purposes of Miranda safeguards because he was detained for over one-half an hour, and subjected to questioning while in the patrol car. Thus, we acknowledged Meyer’s relevance to the unusual traffic stop that involves prolonged detention. We expressly disapproved, however, the attempt to extrapolate from this sensitivity to uncommon detention circumstances any general proposition that custody exists whenever motorists think that their freedom of action has been restricted, for such a rationale would eviscerate Berkemer altogether. See Berkemer, supra, 436-437, 104 S.Ct. [at 3148].

— U.S. at---— n. 2, 109 S.Ct. at 207 n. 2, 102 L.Ed. at 176-77 n. 2.

In summary, the United States Supreme Court has clarified that police need only give Miranda warnings while detaining a suspect by the side of a public highway when the suspect is actually placed under arrest or when the questioning of the suspect is so prolonged or coercive as to approximate the atmosphere of a station house interrogation. Thus, in the typical situation in which a motorist is temporarily ordered to remain by the side of his car, Miranda warnings are not essential.

This conclusion is also supported by the recent decision of the Pennsylvania Supreme Court in Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988). In Gonzalez, the appellant was questioned by police without benefit of Miranda warnings after he was involved in a serious car accident. The plurality found that appellant’s statements were admissible as evidence since appellant was not in custody. The Gonzalez Court cited with approval the following passage from Commonwealth v. Meyer:

[T]his jurisdiction’s test of ‘custodial interrogation’ examines more than actual deprivation of freedom. Pennsylvania’s test for custodial interrogation is whether the suspect is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by said action.

Gonzalez, 519 Pa. at 124, 546 A.2d at 26 (citing Meyer, 488 Pa. at 306, 412 A.2d at 521).

The plurality, however, proceeded to apply the Meyer test for custody in a manner consistent with the United States Supreme Court’s approach in Berkemer v. McCarty and Pennsylvania v. Bruder. The plurality found that although appellant was under a statutory duty to remain at the scene of the accident and identify himself, see 75 Pa. Cons.Stat.Ann § 3744, he was not entitled to Miranda warnings.

When the police officers approached the appellant at the accident scene and asked him if he was hurt and what happened, appellant was not in custody, nor could he have reasonably believed he was in custody for purposes of Miranda. At that time, the appellant was not under arrest and he has not shown that he was subjected to restraints comparable to those associated with an arrest. The appellant was asked a minimal number of questions at the scene of the accident on a public street. Those questions cannot be characterized as “custodial interrogation.” See Berkemer v. McCarty, [supra ].

519 Pa. at 124, 546 A.2d at 29-30. Cf. Commonwealth v. Ellis, 379 Pa.Super. 337, 351-357, 549 A.2d 1323, 1330-32 (1988) (applying Berkemer standard for custody).

In light of Commonwealth v. Gonzalez, supra, Pennsylvania v. Bruder, supra, and Berkemer v. McCarty, supra, we conclude that in the case sub judice, the police did not err by omitting Miranda warnings. The record does not indicate that the defendant was interrogated for an unreasonably long period of time, or forced to enter a police patrol car, or subjected to any form of undue coercion. The defendant was asked a few question and directed to perform a few simple sobriety tests while standing at the side of his vehicle in a public area. Therefore, Miranda warnings were not required.

ORDER REVERSED. Jurisdiction is relinquished.

WIEAND, J., concurs in the result.

      . The United States Supreme Court reversed on the ground that Bruder was not in custody. That Court did not review the Superior Court majority’s additional holding that the recitation of the alphabet is testimonial in nature. See Pennsylvania v. Bruder, — U.S. at — n. 3, 109 S.Ct. at 207 n. 3, 102 L.Ed.2d at 177 n. 3 (reserving issue). We have no occasion to consider whether this additional holding should also be reexamined.

      . Justice Larsen authored an opinion announcing the judgment of the court which was joined by Justice Flaherty and Justice Zappala. Chief Justice Nix concurred in the result. Justice McDermott and Justice Papadakos dissented on a ground unrelated to the Miranda issue. Justice Stout did not participate in consideration or decision of the case.


author: WIEAND, Judge:

text:
    553 A.2d 1004
    Irvin ROSEN and Sunny Rosen, H/W, Appellants, v. EMPIRE VALVE AND FITTING, INC. and Paul Silver, Appellees.
    Superior Court of Pennsylvania.
    Submitted Oct. 25, 1988.
    Filed Feb. 6, 1989.

      Arthur S. Cavaliere, Philadelphia, for appellants.
    Harold Rosenthal, Philadelphia, for Empire, appellee.
    Paul Silver, Philadelphia, propria persona.
    Before CIRILLO, President Judge, and WIEAND and McEWEN, JJ.
   WIEAND, Judge:

In this action to recover the down payment made by purchasers of real estate, the trial court sustained preliminary objections in the nature of a demurrer and dismissed the complaint. The issue to be decided on appeal is whether the provisions of the contract permit a recovery of the down payment where a mortgage commitment, once issued, was later withdrawn.

On November 4,1986, appellants, Irvin and Sunny Rosen, agreed to purchase from appellee, Empire Valve and Fitting, Inc., which agreed to sell, premises known as 1901 West Courtland Street, Philadelphia. The agreed price was $115,000. A down payment of $11,500 was made, and settlement was to be held on or before February 18, 1987. The agreement provided, in pertinent part, as follows:

4. This sale and settlement hereunder are NOT conditional or contingent in any manner upon the sale or settlement of any other real estate NOR subject to any mortgaging or financing except as hereinafter provided.
(a) Term and amount of mortgage required by Buyer: N/A years, $103,500.00
(b) Interest rate and type mortgage required by Buyer: Interest N/A %, Type See Paragraph 5(a)
(c) Commitment date for approval of mortgage: January 14, 1987
(f) Mortgage application shall be made through the office of Buyers Choice and if said mortgage loan cannot be obtained, this agreement shall be null and void and all deposit monies shall be returned to the Buyer on or before date for settlement as provided herein.
5. (a) This sale is contingent upon mortgage financing of the following type: Philadelphia Authority for Industrial Development (P.A.I.D.) tax free and Philadelphia Industrial Development Corporation (P.I.D.C.) direct financing through the Pennsylvania Loan Fund in the amount of $103,500.00. (emphasis added).

The agreement was subsequently amended by an undated memorandum which provided in part as follows:

The following paragraphs of the Agreement of Sale are modified. All other covenants remain in force as set forth:
3(g) Settlement to be made within ninety (90) days of mortgage commitment on a date to be determined by Seller and Buyer.
4(c) Commitment date for approval of mortgage required by Buyer: April 30, 1987.
5(c) Buyer shall proceed expeditiously to make application, cooperate and to attempt to obtain a mortgage. Any unreasonable delay by Buyer shall be a breach of Agreement.
5(d) Buyer shall keep Seller informed of efforts to obtain a mortgage and shall notify Seller immediately of approval or rejection of a mortgage commitment.

On April 30, 1987, the agreement was again modified. A second addendum extended the mortgage commitment date to June 30, 1987, and provided that “[settlement is to be made within one hundred and twenty (120) days of mortgage commitment on a date to be determined by Buyer and Seller.”

On June 18, 1987, the requested mortgage financing was approved by Philadelphia Industrial Development Corporation (PIDC), and the seller was duly notified. However, on September 21, 1987, before settlement had taken place, PIDC withdrew its commitment because of a substantial change in the financial circumstances of Foamland, Inc., a corporation which was to guarantee repayment of the mortgage loan. On September 23, 1987, the buyers notified the seller that they were unable to obtain the requisite financing and requested a return of the down payment. The seller refused to return the down payment, and this action by the buyers followed.

In response to preliminary objections in the nature of a demurrer filed by the seller, the trial court interpreted the contract language to require the buyers to notify the seller of their inability to obtain mortgage financing before the mortgage commitment date. Because the buyers had notified the seller of PIDC’s commitment prior to the commitment date and the withdrawal of the commitment by PIDC had occurred after the commitment date, the trial court held that the buyers were not entitled to recover their down payment. Therefore, it sustained the seller’s preliminary objections in the nature of a demurrer and dismissed the buyers’ complaint.

A preliminary objection in the nature of a demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. McGaha v. Matter, 365 Pa.Super. 6, 8, 528 A.2d 988, 989 (1987). It tests the legal sufficiency of the challenged pleadings and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief can be granted. Mudd v. Hoffman Homes For Youth, Inc., 374 Pa.Super. 522, 524, 543 A.2d 1092, 1093 (1988). If there is any doubt as to whether a claim for relief has been stated, the trial court should resolve it against the demurring party. Mull v. Kerstetter, 373 Pa. Super. 228, 229, 540 A.2d 951, 951 (1988).

The interpretation to be given to an unambiguous contract is an issue of law for the court. Community College of Beaver County v. Community College of Beaver County, Society of the Faculty, 473 Pa. 576, 592, 375 A.2d 1267, 1275 (1977); Barium Steel Corp. v. Wiley, 379 Pa. 38, 44, 108 A.2d 336, 339 (1954). The contract in the instant case is clear and unambiguous. The parties unambiguously expressed their intention that the agreement would be subject to the condition that the buyers be able to obtain a PIDC loan to finance the purchase; and if this financing could not be obtained, the buyers were to be refunded their deposit. See Agreement of Sale, paragraphs 4(f) and 5(a). It is undisputed that PIDC has refused to provide mortgage financing for the purchase. Unless the buyers have been guilty of bad faith, therefore, the agreement, according to its terms, “is null and void and all deposit monies shall be returned to the Buyer____” It follows that the facts pleaded in the complaint are sufficient to state a cause of action by the buyers for a return of their deposit. See, e.g.: Tieri v. Orbell, 192 Pa.Super. 612, 162 A.2d 248 (1960); Kleiman v. Cohen, 98 Pa.Super. 61 (1929). See generally: 32 P.L.E. Sales of Realty § 192; 77 Am.Jur.2d Vendor and Purchaser § 66.

The parties had a right to make their own contract; a court should not give their agreement a construction which is in conflict with the plain meaning of the language used. Hagarty v. William Akers, Jr. Co., 342 Pa. 236, 239, 20 A.2d 317, 319 (1941). The language of the original agreement was clear. If mortgage financing could not be obtained, the agreement was to become null and void and the deposit was to be returned to the purchasers. See: Ormond Realty v. Ninnis, 341 Pa.Super. 101, 491 A.2d 169 (1985). This provision was not altered by the subsequent dates set by the parties’ several addenda for obtaining the necessary mortgage commitment and for holding settlement. Robert F. Felte, Inc. v. White, 451 Pa. 137, 302 A.2d 347 (1973). The fact that a mortgage commitment, once obtained, was later cancelled or withdrawn, does not mean that the buyer must forfeit his deposit, provided that he has acted diligently and in good faith. See: Willeford v. Walker, 499 S.W.2d 190 (Tex.Civ.App.1973). See also: Annotation, Sufficiency of Real-Estate Buyer’s Efforts to Secure Financing Upon Which Sale is Contingent, 78 A.L.R.3d 880 § 9(a). The parties did not provide that the obligation to purchase would become absolute immediately upon the issuance of a mortgage commitment. Instead, the agreement unequivocally provided that “if said mortgage loan cannot be obtained, this agreement shall be null and void and all deposits monies shall be returned to the Buyer on or before date for settlement.” A court cannot ignore but is bound to give effect to the conditions stated in a written agreement of sale which have been neither altered nor waived by the parties. See: Turk v. D. Katz & Sons, Inc., 254 Pa.Super. 177, 185, 385 A.2d 583, 587 (1978), citing Robert F. Felte, Inc. v. White, supra, 451 Pa. at 145, 302 A.2d at 351. See also: Wickes Corp. v. Newtown Savings Ass’n., 322 Pa.Super. 453, 463, 469 A.2d 1078, 1083 (1983).

Because the buyers have sufficiently stated a cause of action against the seller for return of their deposit, the trial court erred when it sustained preliminary objections in the nature of a demurrer to the complaint.

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

      . Paul Silver, the agent who is holding the down payment, was named as a defendant in addition to the seller.


author: POPOVICH, Judge:

text:
    553 A.2d 1006
    COMMONWEALTH of Pennsylvania v. David MEADOWS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 21, 1988.
    Filed Feb. 6, 1989.

      Kimberly M. Preston, Assistant Public Defender, West Chester, for appellant.
    Nicholas J. Casenta, Jr., Assistant District Attorney, Downingtown, for Com., appellee.
    Before MONTEMURO, BECK and POPOVICH, JJ.
   POPOVICH, Judge:

David Andrew Meadows was tried before a jury in the Court of Common Pleas of Chester County and convicted of rape, indecent assault and corruption of minors. 18 Pa.C. S.A. §§ 3121, 3126, 6301. Following the denial of post-trial motions, he was sentenced to five to ten years imprisonment, and this appeal followed. We affirm.

In this direct appeal from his judgment of sentence, the appellant contends that the evidence against him was legally insufficient to support the convictions for rape and indecent assault. He also contends that the lower court erred in refusing to grant his motion for a mistrial on the following grounds: 1) the prosecutor was erroneously permitted to question the appellant on his post-arrest silence and comment on the silence in his closing argument; 2) a counselor from the Crime Victims’ Center was erroneously permitted to console the victim while she was on the witness stand in view of the jury; and 3) the prosecutor was erroneously allowed to admit into evidence the victim’s blood-stained panties. Finally, he contends that he was deprived of a fair trial when the judge gave erroneous instructions to the jury.

The facts of the case are as follows: In 1986, when the appellant was twenty-three years of age, he became acquainted with the complainant, Becky M. Becky was the younger sister of the appellant’s brother’s girlfriend. She was fifteen years of age and was deaf. The appellant visited Becky at her parents’ home on six or seven occasions during a three-month period. Becky developed a strong attachment to appellant and considered him to be her boyfriend. N.T. 11/3/86 at 29. She looked forward to his visits and tried to teach him some sign language.

On June 8, 1986, Becky and the appellant met behind a barn located on her parents’ property and voluntarily engaged in petting activities. After they were interrupted by Becky’s sister, they left the barn and walked for five minutes until they came to a nearby dirt field. N.T. 11/3/86 at 43. Becky kissed the appellant and voluntarily laid down on the ground. The appellant maintains that, thereafter, he had consensual sexual intercourse with Becky and that Becky did not object or protest in any way. However, at the appellant’s preliminary hearing, Becky testified that while the appellant was pulling down her zipper, she said aloud, “No.” and “Off.” N.T. 11/3/86 at 60. At trial, Becky provided additional details. She testified through an interpreter as follows:

Q. What did you say to Dave when he had sex with you there?
A. I said: Why you have sex? I don’t want any. Q. And what did you say when he pulled your pants down?
A. I said: Why are you pulling my pants down.
Q. What did you say when he put his penis into your vagina?
A. I said: I — I don’t — he said he wanted to have me pregnant.

N.T. 11/3/86 at 59.

Becky also said that she pushed hard against the appellant but could not move his body off hers. N.T. 11/3/86 at 12.

After the act of intercourse was completed, the couple returned to Becky’s parents home. Becky admitted that she again kissed the appellant, but she said that she was now afraid of him. N.T. 11/3/86 at 25, 52. The following day, Becky arranged an appointment with a school nurse. She told the nurse that a boy named Jimmy had forced her to have sex and that she thought she was pregnant. After speaking to the police, Becky said that, in fact, the appellant had forced her to have sex.

In November, 1986, the appellant was tried before a jury on charges of rape, indecent assault, and corruption of minors. After retiring for deliberations, the jury returned with two questions for the judge concerning the definition of the crime of rape. According to the Pennsylvania rape statute, “A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse ... by forcible compulsion____” 18 Pa.C. S.A. § 3121. The jury foreman asked the judge to define “forcible compulsion”. The foreman also asked the judge, “Can Becky consent to a point and then say no? (Prior to the act) In other words, can she consent 95 percent and just prior to intercourse say: No, no. Off, off. Is this forcible compulsion.?” N.T. 11/6/86 at 72. Defense counsel’s position was that the court should respond to these questions by defining “forcible compulsion” as the use or threatened use of physical force or violence. The trial court, however, noted that in the case of Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), the Pennsylvania Supreme Court had held that psychological, moral, and intellectual force can also rise to the level of “forcible compulsion.” Over defense objection, the Court read excerpts from the Rhodes case to the jury and then made the following comments:

It is up to you as the jury to take what I have just read to you, consider everything to determine whether you have forcible compulsion of the various types; whether it was physical — and you have to keep in mind what the evidence was with regard to any physical coercion, with regard to moral, intellectual, or psychological. The essence of the offense is that there was some exercise of conduct on the part of the Defendant that was against the will of the victim in this case, Miss [M.]. And I can do no more that tell you that the Supreme Court says it’s one of four varieties at this point in time.
And, again, the Court tells you to look at all of the circumstances that were occurring that day from — and I say to you you should look from the time Mr. Meadows arrived until the time that they were in the field and what was occurring and to distill those facts and ask yourself: Is it physical force; is it moral; is it intellectual; is it psychological? And I can give to you no more guidance than that.

N.T. 11/6/86 at 75-76.

The jury then convicted the appellant of all charges. On November 11, 1987, he was sentenced to a mandatory minimum five year term of imprisonment for rape. The judge determined that the convictions for indecent assault and corruption of minors merged with the rape conviction.

The appellant contends on appeal that there is insufficient evidence of rape and indecent assault. We disagree. When reviewing a sufficiency of the evidence claim, we must view all of the evidence in the light most favorable to the Commonwealth, and resolve all conflicts in the evidence in favor of the Commonwealth. See, e.g., Commonwealth v. Pearsall, 368 Pa.Super. 327, 329, 534 A.2d 106, 108 (1987). As appellant concedes, a defendant is clearly guilty of rape if he has sex with another person who is not his spouse through the use of physical force or violence. Moreover, a defendant is guilty of indecent assault if he has indecent contact with another person who is not his spouse without that other person’s consent. 18 Pa.C.S.A. § 3126. Viewing the evidence in the light most favorable to the prosecution, a jury could find that appellant pinned Becky to the ground and knowingly disregarded her efforts to communicate the idea that she did not want to have intercourse. Accordingly, we find that the trial court was correct in denying appellant’s motion in arrest of judgment.

Next, we will discuss the appellant’s opposition to the trial court’s denial of his motion for a mistrial. “The decision whether to declare a mistrial is within the sound discretion of the trial judge and will not be reversed absent a flagrant abuse of discretion. Commonwealth v. Hamm, 325 Pa.Super. 401, 412, 473 A.2d 128, 133 (1984); Commonwealth v. Seigrist, 253 Pa.Super. 411, 418, 385 A.2d 405, 408 (1978).” Commonwealth v. Thomas, 361 Pa.Super. 1, 14, 521 A.2d 442, 449 (1987), allocatur denied 516 Pa. 617, 532 A.2d 1119. Moreover, when prompt curative or cautionary instructions are given by the court, an abuse of discretion will not readily be found. Commonwealth v. Hoffman, 301 Pa.Super. 312, 316, 447 A.2d 983, 985 (1982); Thomas, 521 A.2d at 449; Seigrist, 385 A.2d at 409. “A mistrial must be granted ‘only when [the prejudicial effect of] an incident is of such a nature that its unavoidable effect is to deprive appellant of a fair trial.’ Commonwealth v. Hernandez, 498 Pa. 405, 415, 446 A.2d 1268, 1273 (1982).” Commonwealth v. Chestnut, 511 Pa. 169, 176, 512 A.2d 603, 606-607 (1986).

With the aforementioned standards in mind, we will review the appellant’s assertions of error concerning his motion for a mistrial. First, the appellant asserts that error was committed when the prosecutor was permitted to cross-examine on his post-arrest silence and comment in the closing argument on his silence. A careful review of the transcripts clearly reveals that the complained of cross-examination and references in the prosecutions closing argument did not refer to the appellant’s Fifth Amendment rights.

The appellant grounds his allegation in the following testimonial excerpt from his cross-examination:

Q. Sir, when you were asked by the police whether you had sex with Becky [M.], you said no; correct?
A. That’s true.
Q. That was a lie; correct?
A. Yes, it was.
Defense: Objection, Your Honor. He already went through this.
Court: The objection is overruled.

N.T., 11/6/86, p. 108.

Jj: aje s¡c jjs sjs >¡í
Q. Sir, when you found out your pubic hairs had been matched to the underwear in front of you, that Jimmy Lansidal’s hadn’t, that’s the first time you said you had sex; correct with Becky [M.]?
A. That’s the first that I had said? That’s the — I’d imagine that’s about the time.
Q. That’s about the time you started telling people about this; correct?
A. I don’t remember when I said it.
Q. You didn’t tell the police officers the sex was consensual; right?
A. No, I didn’t.
Q. You didn’t tell the District Attorney’s Office or any investigative body the sex was consensual; right? Defense: Your Honor, objection. We have been over this ground already.
Prosecution: I never asked this question before.
Court: I am going to permit you to go a little longer, Mr. Carmody, but I think you have been over this ground. Prosecution: This will be the final. I will wind it up here, Your Honor.
Q. You didn’t tell the District Attorney’s Office or anybody else about this, did you?
A. No, I didn’t.
Q. You lied, sir, when you thought it could help you, correct?
A. No, that’s not true.
Q. It was only when you were trapped by the physical evidence in front of you is when you told us, this jury, that the sex was consensual?
A. No, sir, that is not true.

N.T., 11/6/87, p. 110-111.

After reviewing this testimony, it is abundantly clear to this court that the prosecution was not commenting upon the appellant’s right to remain silent but rather was highlighting the appellant’s prior contradictory statements as relevant an indication of appellant’s guilt. It is well established Pennsylvania law that “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 [consciousness of] guilt.” Commonwealth v. Bolish, 381 Pa. 500, 524, 113 A.2d 464, 476 (1955); Commonwealth v. Boyle, 498 Pa. 486, 497, 447 A.2d 250, 255-56 (1982); Commonwealth v. Calloway, 313 Pa.Super. 173, 181, 459 A.2d 795, 799 (1983). Moreover, the cross-examination is consistent with an effort by the Commonwealth to impeach the appellant’s credibility through the use of prior inconsistent statements. See U.S. v. Agee, 597 F.2d 350 (3rd Cir., 1979) (questioning on silence distinguished from relevant questioning on prior false statements given to police); U.S. v. Franklin, 586 F.2d. 560 (5th Cir., 1978) (post-arrest silence not at issue when prosecution impeaches by use of prior inconsistent statements given to police).

Thus, the prosecutor’s questioning did not impermissibly elicit evidence of the appellant’s post-arrest silence; rather, the cross-examination was directed at the appellant’s prior contradictory statements. We find that the trial court did not abuse its discretion in denying the appellant’s motion on the ground of prosecutorial misconduct.

We reach the same result when we consider the appellant’s allegation concerning the prosecution’s closing argument which reads as follows:

This defendant lies to the police and says: No, there is no sex; none of that big time stuff, you know.
Mr. Sanchez in his opening goes: Well, in his statement he admitted everything but the sex.
What did he admit? He had to admit it. And, I put on evidence of Joann seeing them behind the rabbit pen, of Dot Lichte seeing them in the street, the mother seeing— Susan M. seeing them on the street. He’s seen with Becky. He’s pinned to the scene. So, he had to admit that.
But he’s not — doesn’t have to admit the sex until we physically trap him with physical evidence. His pubic hairs were in there. Actually, Jimmy Lansidal’s weren’t. He was trapped by the physical evidence. He had to change his story. He had to change his defense.

It is obvious that the prosecution’s closing argument was proper for the same reason that the cross-examination was proper. The prosecutor was merely highlighting the contradictory statements the appellant made at the time of his arrest and subsequently. Pennsylvania courts have consistently held that “a prosecutor may make remarks on the evidence presented to a jury which point out any legitimate inference which may be drawn from the evidence.” Commonwealth v. Nenninger, 359 Pa.Super. 444, 453, 519 A.2d 433, 438 (1986); Commonwealth v. Tucker, 461 Pa. 191, 335 A.2d 704 (1975); Frazier, 480 A.2d 276. Upon review, we are limited to determining whether the trial court abused its discretion in determining whether the unavoidable effect of the argument was so prejudicial as to prevent the jury from weighing the evidence objectively and rendering a true verdict. Commonwealth v. Adams, 362 Pa.Super. 549, 557, 524 A.2d 1375, 1379 (1987) (citing cases).

In Nenninger, supra, the appellant objected to the prosecutor’s suggestion to the jury that the appellant’s only defense to a rape charge was that of consent because he was aware of the medical reports the type of sexual contact described by the victim. That appellant alleged the remarks were erroneous since they implied that he had fabricated his story to explain the evidence. After finding the central issue to be whether the sex was consensual, we held that “it is reasonable for each side to imply prevarication on the part of the other.” Nenninger, 519 A.2d at 437. Similarly under the present facts, it was entirely reasonable for the prosecution to highlight the fact that only after the appellant’s pubic hair was found in the victim’s panties did the appellant claim to have consensual sex with Becky.

We find the issue of whether the prosecution erroneously commented on the appellant’s post-arrest silence is merit-less since the prosecution clearly did not make any reference to the appellant’s post-arrest silence. Moreover, even assuming arguendo that the closing was prejudicial, it certainly was not sufficiently prejudicial to prevent the jury from rendering a true verdict. Thus, we cannot find that the trial judge abused his discretion in denying the motion for a mistrial.

The appellant second attack on the court’s denial of his mistrial motion concerns the prejudicial effect of a rape counselor’s act of comforting the victim while she was on the witness stand. The appellant contends that “a conversation between the counselor for the Crime Victim Center of Chester County and the victim exacerbated the testimony of an extremely sympathetic dead [sic] mute witness.” Brief, p. 17. We must disagree.

Instantly, the trial judge adjudicated the issue as follows: On both occasions there had been side bar conferences with counsel and a decision to adjourn to an adjacent room for further discussion. No one explained to the deaf mute witness what was happening, and it was obvious that she was confused and concerned by the sudden departure of the attorneys and myself and was looking to the people with whom she was familiar for some advice. There was nothing impermissible in the witness assistance personnel going up and talking to the victim. Furthermore, I instructed the jury not to allow any sympathy because of the victim’s handicaps to play any role in their decision in this case. (N.T. 11/3/86 p. 19, 24). “Prompt and adequate cautionary instructions can cure what might otherwise be reversible error.” Commonwealth v. Gbur, 327 Pa.Super. 18, 24, 474 A.2d 1151, 1154 (1984). Thus the instructions given to the jury regarding the victim’s handicaps allayed any possible prejudice to the Defendant with regard to whose testimony was more credible.

Trial Court Opinion, p. 9.

Instantly, we are unable to find that the trial court’s denial of a mistrial was an abuse of discretion. Clearly, there is nothing impermissible with a witness conversing with a friend while court is adjourned. If we were to rule that a deaf mute victim could not converse in front of a juror simply because he or she had to communicate through sign language, we would be guilty of nothing less than discrimination. While the complained of conversation is factually unusual, the trial court certainly “allayed any possible prejudice to the Defendant” through a cautionary instruction. Moreover, it is entirely probable that the counselor’s conversation prevented any prejudice which may have occurred had the victim become visibly distraught because of her confusion when the attorneys and judge left the courtroom without explanation.

The appellant’s third attack on the trial court’s denial of his mistrial motion alleges that the court erroneously admitted into evidence the victim’s blood-stained panties. The admission or exclusion of evidence is a matter specifically within the discretion of the trial judge, and we will not reverse his decision absent an abuse of that discretion. Commonwealth v. Ford, 451 Pa. 81, 85, 301 A.2d 856, 858 (1973); Commonwealth v. Grove, 363 Pa.Super. 328, 346, 526 A.2d 369, 379 (1987), allocatur denied, 517 Pa. 630, 539 A.2d 810; Commonwealth v. Johnson, 340 Pa.Super. 26, 30, 489 A.2d 821, 823 (1985). “The test to be applied in determining the admissibility of such evidence involves weighing the inflammatory nature of this evidence against its ‘essential evidentiary value.’ Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747, 750 (1977) (citing cases).” Commonwealth v. Pifer, 284 Pa.Super. 170, 180, 425 A.2d 757, 762 (1981).

Again, we find that the appellant's assertion of error is without merit. Firstly, as the trial court found, the panties were relevant to show that sexual intercourse did occur. Secondly, the presence of dried blood on a piece of evidence does not necessarily render the evidence inflammatory. Pifer, 425 A.2d at 762-763. Thirdly, even assuming arguenfio that the blood-stained panties were prejudicial, the trial judge removed any possible prejudicial effect through a cautionary instruction prior to the admission of the panties. Hoffman, 447 A.2d at 985.

Finally, the appellant contends that the trial court erred in charging the jury consistent with Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). After a specific request by the jury for an instruction defining “forcible compulsion,” the trial court instructed the jury in compliance with Commonwealth v, Rhodes, supra. Instantly, the appellant specifically objects to that portion of the instruction which defined “forcible compulsion” to include “not only physical force or violence but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person’s will.” Commonwealth v. Rhodes, 510 A.2d at 1226.

In Commonwealth v. Rhodes, the twenty year old defendant lured an eight year old girl to a room on the second floor of an abandoned building and ordered her to submit to sexual intercourse and anal sex. A divided panel of the Superior Court reversed the defendant’s rape conviction on the grounds that there was insufficient evidence that he had used physical force. Upon further appeal, the Supreme Court held that the defendant’s use of psychological, moral, and intellectual pressure against the child rose to the level of “forcible compulsion”. Citing the dissenting opinion of Judge Cavanaugh in the Superior Court, the Justices noted that “the illicit commands of this twenty year old [man] in an isolated and abandoned room were ... an imperative which gave the [eight year old] child victim no alternative but submission to appellant’s corrupt scheme.” 510 A.2d at 1217 (citing 332 Pa.Super. 273, 281, 481 A.2d 610, 614 (1984)) (parenthetical language added by Supreme Court).

The trial judge viewed the case sub judice as analogous to Rhodes. The trial court opinion states:

The Rhodes rationale does apply to the instant case in that the victim was psychologically vulnerable to the Defendant just as the Rhodes victim was. The victim in the case before us is a deaf mute, fifteen years of age and the Defendant is twenty-three years of age. In addition the victim had an adolescent crush on the Defendant and the Defendant was aware of her feelings for him. Furthermore, the sexual intercourse took place in a secluded field. The circumstances of this case show that psychological coercion existed and under the Rhodes analysis such coercion is sufficient to meet the requirement of forcible compulsion.

Trial Court Op. at 6.

In a recent decision, Commonwealth v. Holland, 518 Pa. 405, 543 A.2d 1068 (1988), our Supreme Court set forth the standard used when adjudicating whether a trial court had grounds for instructing the jury on a certain matter.

It is axiomatic that a jury need not be instructed regarding matters that have no relevance to the evidence introduced at trial. As stated in Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963), “There is no duty on a trial judge to charge a jury upon a law which has no applicability to the presented facts. There must be some relationship between the law upon which an instruction is required and the evidence presented at trial: Commonwealth v. Coleman, 402 Pa. 238, 166 A.2d 525 (1961).” See also Commonwealth v. Teroalon, 463 Pa. 581, 593, 345 A.2d 671, 678 (1975); Commonwealth v. Bighum, 452 Pa. 554, 559, 307 A.2d 255, 258 (1973); Commonwealth v. Heckathorn, 429 Pa. 534, 540, 241 A.2d 97, 100 (1968) (“A charge on a point or issue which is unsupported by any evidence is likely to confuse the jury and obstruct Justice.”)

Commonwealth v. Holland, supra, 543 A.2d at 1071.

Here, we must ask upon review whether “some relationship” between the jury instruction on “forcible compulsion” and the evidence exists. If any evidence of “forcible compulsion” of a psychological, moral or intellectual nature appears in the record, then the trial court’s instruction was not erroneous.

Our Supreme Court did not qualify its definition of “forcible compulsion.” Rather, the Court defined “forcible compulsion” for all cases, setting forth a jury question of whether forcible compulsion of a physical, psychological, moral or mental nature occurred. In Commonwealth v. Rhodes, supra, 510 A.2d 1217, our Supreme Court explained that:

The determination of whether there is sufficient evidence to demonstrate beyond a reasonable doubt that an accused engaged in sexual intercourse by forcible compulsion ... is, of course, a determination that will be made in each case based upon the totality of circumstances that have been presented to the fact finder. Significant factor to be weighed in that determination would include the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress. This list of factors is by no means exclusive.

Commonwealth v. Rhodes, supra, 510 A.2d at 1226.

This record reflects the following evidence of “forcible compulsion” of psychological, moral or intellectual force. The appellant was twenty-three years of age at the time of the rape. The victim was only fifteen years of age. The victim was deaf. The record clearly reveals that the victim had difficulty communicating with the appellant. The record also shows that the victim had an “adolescent crush” upon the appellant, and the rape occurred in a secluded spot where the victim could not alert help. After a specific request for instruction by the jury, the trial court’s instruction correctly framed the issue for the jury’s consideration. We, therefor, hold that the instruction was not misleading and reversible error did not occur. In fact, the instruction was necessary to answer the jury’s question concerning “forcible compulsion.”

In sum, we find that the appellant’s assertions of error are without merit. Firstly, the evidence was sufficient to sustain the appellant’s conviction of the charge of rape. Secondly, the trial court did not abuse its discretion in denying the appellant’s motion for a mistrial since the Commonwealth did not make impermissible reference to the appellant’s post-arrest silence, the appellant was not prejudiced by the crime victims’ counselor comforting of the victim and the appellant was not prejudiced by the admission of the victim’s blood-stained underwear. Further, the trial court gave cautionary or curative instructions when necessary. And thirdly, the trial court correctly instructed the jury on the issue of forcible compulsion as defined in Rhodes, supra. Accordingly, judgment of sentence is affirmed.

Judgment of sentence is affirmed.

BECK, J., concurs in the result.

      . The jury also asked the judge to define the term “indecent assault".

      . The Commonwealth, in its brief, states “At the time the Commonwealth’s brief was filed, the prosecutor’s closing argument still had not yet been transcribed. However, that part of the prosecutor’s closing argument that defendant alleged as error was transcribed and it consists of a one page transcript dated November 6, 1986.” Brief p. 16, n. 7. Presently, the prosecutor’s closing statement does not appear in the record, neither in fully transcribed form nor the one page excerpted transcript. Since both parties agree to the text in dispute, we will review the argument.
      We note that allegedly improper comments in the prosecutor’s closing argument must be evaluated in their full context including the defense’s closing argument. Commonwealth v. Frazier, 331 Pa.Super. 128, 134, 480 A.2d 276, 279-280 (1984). Since a full context evaluation is not possible presently, we could refuse to review this issue. Commonwealth v. Dobson, 302 Pa.Super. 57, 59, 448 A.2d 92, 94 n. 2 (1982). However, as this issue is easily resolved pursuant to our discussion of the cross-examination of the appellant, we will dispose of this issue.


author: McEWEN, Judge:

text:
    553 A.2d 1014
    George ADAMS, Appellant, v. HARLEYSVILLE INSURANCE CO. and Southeastern Pennsylvania Transportation Authority, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1988.
    Filed Feb. 8, 1989.

      Thomas Bruno, II, Philadelphia, for appellant.
    Kathleen M. Kramer, Philadelphia, for Harleysville, appellees.
    Before CIRILLO, President Judge, and WIEAND and McEWEN, JJ.
   McEWEN, Judge:

This appeal has been taken from the entry of summary judgment in favor of Harleysville Insurance Company (hereinafter appellee), in this action to recover first party benefits pursuant to the Motor Vehicle Financial Responsibility Act.

Appellant, George Adams, was injured while riding as a passenger in a SEPTA trolley which struck the rear of a vehicle insured by appellee. Appellant filed a complaint seeking payment of first party benefits, pursuant to the policy issued by appellee to the driver of the automobile, and in conformity with the requirements of the Motor Vehicle Financial Responsibility Act, 75 Pa.C.S. §§ 1701 et seq. Appellee Harleysville joined SEPTA, alleging that SEPTA was liable for the payment of first party benefits. The trial court granted summary judgment in favor of appellee Harleysville, and dismissed appellee from the action as a result of its conclusions (1) that the SEPTA trolley was a “motor vehicle” for purposes of the Motor Vehicle Financial Responsibility Act, and (2) that SEPTA was, therefore, the obligor required to provide first party benefits to the appellant. 75 Pa.C.S. § 1787(a)(1).

Section 1711 of the Pennsylvania Motor Vehicle Financial Responsibility Act provides that policies covering “any motor vehicle of the type required to be registered under [the Motor Vehicle Code],” shall include coverage for first party benefits. 75 Pa.C.S. § 1711 (emphasis supplied). The parties agree that the sole issue presented by this appeal is whether the SEPTA trolley, which was operated upon tracks, is a motor vehicle “of the type required to be registered.” We are, therefore, called upon to ascertain whether the legislature intended to exclude from the provisions of the Motor Vehicle Financial Responsibility Act a trolley operated upon tracks.

A statute must be read to effect its general purpose. Busy Beaver Building Centers, Inc. v. Tueche, 295 Pa. Super. 504, 512, 442 A.2d 252, 256 (1981). Words and phrases used by the legislature are to be construed according to their common meaning and accepted usage, with technical words being given their technical meaning. Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983). However, individual provisions in a comprehensive legislative scheme should not be read abstractly, but rather with a view to their place in the entire structure____ Anatanovich v. Allstate Insurance Co., 320 Pa.Super. 322, 338, 467 A.2d 345, 353 (1983), aff'd., 507 Pa. 68, 488 A.2d 571 (1985).

Pistorius v. The Travelers Insurance Company, 348 Pa. Super. 527, 530, 502 A.2d 670, 671 (1985).

While the term “motor vehicle” is not defined in the Motor Vehicle Financial Responsibility Act, Section 102 of the Motor Vehicle Code defines “motor vehicle” as:

[a] vehicle which is self-propelled except one which is propelled solely by human power or by electric power obtained from overhead trolley wires, but not operated on rails.

75 Pa.C.S. § 102. This same section of the Vehicle Code defines “vehicle” as:

[e]very device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks.

75 Pa.C.S. § 102.

This Court, in Rogers v. SEPTA, 356 Pa.Super. 432, 514 A.2d 936 (1986), in determining whether a trackless trolley was a motor vehicle for purpose of ascertaining the responsible obligor under the now repealed No-fault Act, concluded that a trackless trolley was a motor vehicle for purposes of the No-fault Act:

Trackless trolleys need not be registered under the Motor Vehicle Code, 75 Pa.C.S. § 101, not because they are listed as an exception under § 1302(b) of the Code, but because the Department of Transportation has chosen to except them from registration as a policy matter____ Further, trackless trolleys, despite their outward similarities to buses, actually have little in common with true motor vehicles because their travel is limited by their dependence on overhead power lines.
******
The question then, is whether trackless trolleys are more similar to vehicles that are registered under the Vehicle Code (cars, buses, etc.) than to those that are not (dune buggies, trail bikes and the like). We conclude that, despite the fact that trackless trolleys are not actually registered under the Vehicle Code, they are “of a kind” required to be registered. They operate exclusively on public roadways and have all the safety features suiting them for that purpose. While they are not self-propelled, they do have motors, which are simply powered from an outside source. Indeed, apart from the power lines overhead, the trackless trolleys are virtually identical to SEPTA’s conventional buses. It is true that they are limited to those roadways that are equipped with power lines, but while they are operating on those roads the trackless trolleys accelerate, stop, and turn just like ordinary buses. We agree with the trial court that trackless trolleys operate on the roadways in such a fashion as to be deemed motor vehicles under the No-fault Act.

Rogers v. SEPTA, supra, 356 Pa.Superior Ct. at 434-435, 514 A.2d at 937-938.

Two years after the decision in Rogers, the Commonwealth Court was called upon to determine whether a trolley which operates upon tracks was a motor vehicle for the purpose of ascertaining the party responsible for payment of first party benefits under the Motor Vehicle Financial Responsibility Act. Ellis v. SEPTA, 116 Pa.Cmwlth. 299, 541 A.2d 843 (1988) (petition for allocatur pending). The Commonwealth Court concluded that a trolley which operates upon tracks is not a motor vehicle for purposes of the Motor Vehicle Financial Responsibility Act:

Harleysville ... maintains that Rogers controls because a SEPTA trackless trolley — in essence, an electric bus— was deemed to be “more similar to vehicles that are registered under the Vehicle Code ... than to those that are not.” Rogers, supra [356 Pa.Super.] at 434, 514 A.2d at 957. Herein, the trolley was a street car. It rode only on rails and was not subject to typical road surface hazards and, thus, its maneuverability was restricted. Moreover, Harleysville fails to cite any authority, and we have not been able to discover any support for the proposition that street cars are required to be registered under the Vehicle Code.

Ellis v. SEPTA, supra at 301-303, 541 A.2d at 844.

The distinguished Judge Samuel Lehrer reveals in his able opinion the careful analysis that caused him to enter summary judgment for appellee. Both the trackless trolley and the track trolley are restricted in maneuverability to the path of the power lines. Further, trolleys operated upon tracks are more similar to vehicles that are required to be registered under the Vehicle Code than to those not subject to the registration requirements of the Code. See: Pistorius v. The Travelers Insurance Company, 348 Pa.Super. 527, 531, 502 A.2d 670, 672 (1985); Phillips v. Nationwide Insurance Company, 348 Pa.Super. 351, 353, 502 A.2d 244, 245 (1985); Bills v. Nationwide Mutual Insurance Co., 317 Pa.Super. 188, 193, 463 A.2d 1148, 1151 (1983); Siefert v. Nationwide Insurance Co., 289 Pa.Super. 160, 162, 432 A.2d 1101, 1102 (1981). Trolleys, unlike such vehicles as railroad cars, operate in some measure upon the public highways, and, when doing so, are subject to all traffic controls and regulations, and are, as well, plagued by the same hazards and traffic problems as trackless trolleys. Nonetheless, we are constrained to hold that a track trolley is not a motor vehicle for purposes of the Motor Vehicle Financial Responsibility Act.

The Motor Vehicle Code, at Section 102, defines a motor vehicle as “a vehicle which is self-propelled except one which is propelled solely by human power or by electric power obtained from overhead trolley wires but not operated on rails.” 75 Pa.C.S. § 102. This section appears to state that a "motor vehicle” is (1) every self-propelled device which is not propelled solely by human power, and (2) every device propelled by electric power obtained from overhead trolley wires but not operated on rails. Thus, the Vehicle Code excludes a track trolley from the definition of “motor vehicle.”

Nor is the decision of the legislature to distinguish between a track trolley and a trackless trolley an anomaly. This Court, in Rogers v. SEPTA, supra, addressed the considerable difference between the track trolley and the trackless trolley, noting that “apart from the power lines overhead, the trackless trolleys are virtually identical to SEPTA’s conventional buses”. The further thought occurs that this issue would not even have arisen had the inventor more aptly labeled the vehicle a “power line bus” instead of a “trackless trolley”. A further essential distinction is the vast difference in the range of the two vehicles. The trackless trolley is confined in its course to urban areas and does not venture into the environs. The track trolley, however, is not so restricted, and although the word “trolley” triggers for most Americans the image of city streets, that vision overlooks the sleek, high speed trolleys which speed the commuter and the shopper through the countryside and into the city from its neighboring counties.

Thus, the decision of the legislature to embrace the trackless trolley within its definition of motor vehicle, while excluding the track trolley, is decidedly reasonable and, in any event, so clear and certain as to render judicial interpretation unnecessary. We are, therefore, constrained to reverse the order which entered summary judgment in favor of Harleysville and remand this matter to the trial court.

Order reversed. Case remanded. Jurisdiction relinquished.

      . The trial court, in three separate orders, (1) denied the motion for summary judgment filed by SEPTA, (2) entered partial summary judgment against SEPTA and in favor of appellant as to liability, with the damages to be determined at trial, and (3) granted Harleysville’s motion for summary judgment and entered judgment in favor of Harleysville. This appeal from the order granting summary judgment in favor of Harleysville is properly before us since it terminates the litigation as to Harleysville. See: Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 45, 489 A.2d 828, 831 (1985). Conversely, the order granting summary judgment on the issue of liability only as to SEPTA is interlocutory. See: Miller Oral Surgery, Inc. v. Dinello, 342 Pa.Super. 577, 493 A.2d 741 (1985).

        . 75 Pa.C.S. §§ 1701 et seq.

      . The No-fault Act, just as the Motor Vehicle Financial Responsibility Act, did not include a definition of term “motor vehicle”. The Court, therefore, relied upon the applicable provisions of the Motor Vehicle Code.

      . American literature is replete with reference to trolley cars, bearing witness to the dependency of American cities upon the trolley from the earliest days of the horsedrawn vehicles through to their replacement by electric cars. The trolley is among the purest relics of Americana. There is even a Trolley Museum in East Greenwich, Connecticut. The crucial role of the railroad in the surge of America westward merely mirrored the importance of the trolley car in the development of our big cities into flourishing metropolises. The case might even be made that the dwindling reliance upon the trolley effected the decline of our cities. The advent of the trackless trolley, on the other hand, was but a polite concession to modernity which failed to even interest, let alone capture, the heart of the rider. Moreover, without the trolley, San Francisco would only be another city on a bay, Judy Garland could not have clanged her way past Lewis and Clark to center stage on the shrine of St. Louis, and Pittsburgh would have been without the "streetcar students" whose intrepid scholarly efforts have so enlightened this Commonwealth.


text:
    553 A.2d 1018
    David HATCHIGIAN, Appellant, v. June KOCH and Harvey Koch, Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1988.
    Filed Feb. 16, 1989.

      Joseph R. D’Annunzio, Conshohoken, for appellant.
    Cary L. Flitter, Bala Cynwyd, for appellees.
    Before CIRILLO, President Judge, and BECK and KELLY, JJ.
   BECK, Judge:

The novel issue presented is whether a Pennsylvania District Court judgment for the plaintiff has res judicata effect where the defendant appeals the judgment to the trial court, the plaintiff then suffers a judgment of non pros for failing to file a complaint in the trial court, and the plaintiff later institutes a new action in the trial court alleging the same cause of action against the same parties. We find that the judgment of the District Court does not have res judicata effect.

On November 19, 1984, Hatchigian filed a complaint in district court seeking $4,000 for electrical work performed for the Kochs in the period from November 1983 to August 1984. On February 26, 1985, after a hearing on the merits, the district justice entered judgment for Hatchigian in the amount of $786.00, plus costs. Pursuant to Pa.R.C.P.DJ. 1004, the Kochs filed a Notice of Appeal, Praecipe to Enter Rule to File Complaint and Rule to File Complaint in the Court of Common Pleas for Montgomery County. When Hatchigian failed to file a complaint within the required twenty days, the Kochs praeciped for entry of a judgment of non pros pursuant to Pa.R.C.P.DJ. No. 1004 B. This rule provides that if the appealing party is the defendant before the district court and petitions for the plaintiff to file a complaint in the court of common pleas, and the plaintiff fails to do so, then the plaintiff shall suffer a non pros. The judgment of non pros was entered on July 12, 1985. Hatchigian then moved to have the judgment of non pros set aside. His motion was denied on January 3, 1986.

Fifteen months later, on April 9, 1987, Hatchigian filed a new complaint against the Kochs in the trial court in which he requested $1,171.47 for electrical work. The complaint clearly seeks recovery for the same work that was the subject of the action in district court and Hatchigian does not dispute this fact. Both parties filed Motions for Summary Judgment. The Kochs’ motion was granted on May 18, 1988. This timely appeal followed.

The trial court granted the Kochs’ motion because it regarded the February 1985 district court judgment as being res judicata of any claim by Hatchigian for monies allegedly due for services that were the subject of the district court action. The trial court cited this court’s decision in A. C. Elfman & Sons, Inc. v. Clime, 355 Pa.Super. 394, 513 A.2d 488 (1986), as establishing that although a district court is not a court of record, a final district court judgment will nevertheless have res judicata effect where the doctrine of res judicata is otherwise applicable. We find that there are important procedural differences between this case and Elfman which render it inapplicable to the instant case. In Elfman, the district court had entered a consent judgment against plaintiff. Plaintiff then appealed the judgment by filing a notice of appeal in the Court of Common Pleas. Plaintiff, however, failed to file a complaint as required under Pa.R.C.P.D.J. No. 1004 and the trial court struck his appeal pursuant to Pa.R.C.P.DJ. No. 1006. Plaintiff thereafter attempted to file a new action in the trial court alleging the same cause of action against the same parties. The trial court decided that the prior district court judgment was not res judicata. This court reversed, holding that the district court judgment became final upon the striking of the appeal therefrom and had res judicata effect barring the subsequent common pleas action.

The trial court in the instant ease found a strong analogy between this case and Elfman. It noted that in both there was a district court judgment and a later common pleas court action between the same parties alleging the same cause of action. Relying on Elfman the trial court found that the February 1985 district court judgment was res judicata and barred Hatchigian’s subsequent action in the trial court. The trial court, however, failed to recognize that its order of non pros against Hatchigian superceded the judgment of the district court and acted to continue the jurisdiction of the trial court.

In contrast in Elfman the court struck the appeal in the trial court. This had the effect of ousting the jurisdiction of the trial court and leaving as the only subsisting judgment in the matter the district court judgment. In Elfman, to permit a subsequent action at the trial level would be to permit an improper attack on the judgment of the district court because the only proper challenge to the district court judgment was an appeal and the appeal had already been taken and struck.

Furthermore, in the instant case if we were to find that the district court judgment had res judicata effect we would be permitting two valid judgments to exist; one, a judgment for money in the district court, and the other, a judgment of non pros in the trial court. We conclude that the trial court’s judgment of non pros is the only valid surviving judgment, and that the trial court continues to have jurisdiction over this matter.

It is settled law that where plaintiff has suffered a judgment of non pros, he may later commence a new action between the selfsame parties and alleging the selfsame cause of action so long as the second action is commenced within the applicable statute of limitations. Doner v. Jowitt and Rodgers Co., 299 Pa.Super. 492, 445 A.2d 1237 (1982); Bucci v. Detroit Fire and Marine Insur. Co., 109 Pa.Super. 167, 167 A. 425 (1933). Since a non pros is not a judgment on the merits, it cannot have res judicata effect. Id.

Application of this principle to the instant matter compels us to hold that Hatchigian’s present common pleas court action is not barred by the principle of res judicata. We are further persuaded that our resolution is correct because if we were to hold that Hatchigian did not maintain the right to commence his new action throughout the remaining period of the statute of limitations, we would effectively abbreviate his limitations period. The entry of the non pros would place the plaintiff in the same position as if the statute of limitations had run. In contrast a plaintiff who had originally filed a suit in common pleas and been non prossed could still file an identical new action until the limitations period had expired.

The order of the trial court is reversed. The matter is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Hatchigian requests that we not only reverse the summary judgment entered for the Kochs on res judicata grounds, but also that we enter judgment for Hatchigian. Hatchigian filed a cross motion for summary judgment, alleging that there were no material facts in dispute and that he was due judgment as a matter of law. Although no order concerning Hatchigian’s motion was ever entered, the trial court opinion notes that the court sub silentio denied Hatchigian’s motion by granting the Kochs’ motion.
      We will not accede to Hatchigian’s request. The trial court never acted on the substance of Hatchigian’s motion and had no need to do so since it found Hatchigian’s action barred on the independent ground of res judicata. The case must be remanded for the trial court to determine whether either party is entitled to summary judgment on any other ground.