author: SPAETH, Judge:

text:
    444 A.2d 1199
    COMMONWEALTH of Pennsylvania v. Harold NEELY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 7, 1981.
    Filed April 23, 1982.

      Leonard J. Gajewski, Reading, for appellant.
    George C. Yatron, District Attorney, Reading, submitted a brief on behalf of Commonwealth, appellee.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   SPAETH, Judge:

This is an appeal from judgments of sentence for attempted robbery, aggravated assault, and former convict not to own a firearm. Appellant seeks an arrest of the judgments or a new trial. We have concluded that he is not entitled to an arrest of any of the judgments but is entitled to a new trial on the charges of attempted robbery and aggravated assault. We affirm the judgment of sentence for former convict not to own a firearm.

On March 6, 1977, at about 9:00 a. m., Susan Bonk heard “thuds” and cries of “I don’t have any money” coming from her neighbor John Pearson’s apartment. She called the police, and Officer Daniels responded. He entered the Pearson apartment and found Pearson, a 73 year old man, severely beaten and bleeding on the floor. Pearson was taken to the hospital in a comatose state. (At the time of trial Pearson had not regained sufficient mental capacity to testify.) Two men who were in his neighborhood at the time saw appellant, with bright red hair, and two companions flee in a direction away from the Pearson apartment. About twenty minutes later appellant and his two companions were arrested, some six to eight blocks away. Appellant had a .32 caliber revolver.

About ten hours after his arrest, appellant notified Detective Donald Matz that he wished to confess. After being read his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1965), appellant confessed. His confession consisted of two parts, both of which were read to the jury.

The first part of appellant’s confession was in response to a series of questions posed by Detective Matz. It was as follows:

Q. What is your full name?
A. Harold Spencer Neely.
Q. What is your home address?
A. 400 Church Street, Reading, Pa.
Q. Where are you employed?
A. Self-employed.
Q. Can you read and write the English language?
A. Yes.
Q. How far did you go in school?
A. Yes. I attended college.
Q. What college did you attend?
A. Allegheny Community College, Luzerne Community College and Northampton Community College and the University of Pittsburgh.
Q. Did you major in any particular subject?
A. Yes. I majored in psychology.
Q. Have you consumed any alcoholic beverages within the past 24 hours?
A. Yes.
Q. What type of beverage and how much did you consume?
A. I don’t know. I drink all of the time. I drink whisky and beer.
Q. Have you taken any drugs or medications within the past 48 hours?
A. Yes, I took some “TIC” yesterday afternoon.
Q. What is “TIC”?
A. It is an animal tranquilizer.
Q. How did you take the “TIC”?
A. I dropped it.
Q. What does “dropping” mean?
A. I took it by mouth.
Q. Are you affected by the “TIC” or the alcohol at the time of this statement?
A. I don’t think that I am.
Q. We are investigating an assault that occurred at 206 North Ninth Street today, being March 6, 1977. Do you know anything about this incident?
A. Yes, I do.
Q. Can you tell us what you know about this incident?
A. Approximately one month ago I went to see John Pearson at his store because I was interested in faith healing.
Q. How did you find out about John Pearson?
A. I didn’t. I just went into his store one day and a conversation started on faith healing.
Q. Did you ever attend any of his faith healing sessions?
A. No, I never went to his temple.
Q. Did you go to John Pearson’s home today, being March 6, 1977?
A. Yes.
Q. Why did you go there?
A. To test the “bastard.”
Q. Did you go alone?
A. No.
Q. Who was with you?
A. I didn’t know their names.
Q. If you didn’t know the individual’s names that you were with, how did you get in contact with them?
A. An unknown person that I do not want to reveal his name recommended these two people to me.
Q. Did you make an appointment to see John Pearson today?
A. Yes.
Q. When did you make the appointment?
A. I made a call yesterday and spoke with a woman. I made another one this morning and Mr. Pearson told me to come to the house between 9:00 and 10:00 a. m. and bang on the front door; that he, Mr. Pearson, would be in the kitchen.
Q. What time did you arrive at the store and home of John Pearson?
A. Around 9:00 a. m.
Q. What happened when you arrived?
A. He let us in and we went up stairs. I told Pearson that I don’t have any money but that I would write him a check. Pearson then asked me if I had a car. I told him that I had a car. He then asked me if I owned a home. Pearson then asked me if I could get the deed. I said yes and slapped him alongside the head with my hand.
Q. What happened after you slapped John Pearson?
A. He fell backwards and fell against the chair. He kicked at me and called me a son-of-a-bitch.
Q. Then what happened?
A. I really went at him and really worked him over.
Q. What did you work him over with?
A. I really don’t know.
Q. Were you angry when you were assaulting John Pearson?
A. I must have been boiling.
Q. What caused you to become angry with John Pearson?
A. When he asked me for the deed to my house.
Q. What did the two people who were with you do?
A. I noticed that when the first time that I hit Pearson, the other two disappeared and I was alone.
Q. What did you do after you struck Pearson?
A. I just ran.
Q. Did you have a gun on your person when you entered the Pearson residence?
A. No, I didn’t. Sometime when I was assaulting Pearson, I noticed that his hand was reaching towards his back. I grabbed his arm and pulled it and when I pulled on his hand, I observed a gun in one of his hands. I don’t recall which hand it was.
Q. Was the gun in question fired during the assault?
A. I don’t know.
Q. Did you demand any money from Pearson?
A. No, but when I smacked him, he said, “I don’t have any money.”
Q. Do you remember throwing anything into a yard after you fled the Pearson residence?
A. I don’t remember, but I might have.
Q. Did you take the gun away from John Pearson?
A. Yes, I guess I did.
Q. Do you remember what happened to the mentioned gun?
A. The police took it from me.
Q. After having read this statement, is there any additions that you wish to make?
A. I would like to type myself what I want to say.
Q. Is there anything on this statement that is erroneous?
A. No.

N.T. 96-99.

The second part of appellant’s confession was a statement by appellant. It was as follows:

This is a voluntary statement typed by myself, Harold S. Neely as a supplement to the foregoing. I am not making it to add to the general confusion of events but to clarify for myself and others the unbelievable series of events that could allow a dedicated born again Christian to assault a Holy Man of another faith.

First of all, I shot Bootsie Williams accidentally in 1969. I think I never really got over the shock, but I attended several schools, joined several civic organizations, became converted to New Testament Christianity and tried to do what I could to salvage some of the mess. But most of this was sacrificed for a four year experiment in behavior-mod that eventually at some point of confusion, goal-thwarting, desensitization and the rest of it might have driven me quite mad.

But, God, I thought, in His infinite mercy did allow me to survive, and I returned to society sufficiently docile to try it again. I worked for the state as an advocate for predelinquents, acted as a foster parent, salesman, scanner for Dun and Bradstreet, consultant, manager and therapist for a health club chain, and eventually established a sign company of my own. All this, however, was dismissed and I was compelled to return to Reading to function on welfare and roam the streets. Roam the streets with the gamblers, pimps, drug people and commit every outrage to God and man.

Okay, eventually I was able to establish a home and a business. This however, was not enough to honor my commitment to a very generous if tricky God who somehow pulled me through the most horrible seven years possible. The state refused to allow me to really function as any of the above, so I established my own home as a gathering place for troubled youth. However, where there are youth gathering there invariably is smoke and fire. Not the Holy fire of God Almighty but the smoke of hashish, reefer, and the fire of alcohol and sex. But there is also ideas, not necessarily good, sound, solid thoughts, but deep, honest, real thoughts of an open and troubled. youth. So as an unofficial house-manager for the neighborhood kids, I experienced the anger of a job-hungry, free and footloose, undisciplined young America who preoccupied themselves with human need, sexual urgency, ripoffs and castoffs by modern-day America. We talked, thought, smoked and shook our fingers at an America who just didn’t seem to care about pain, deprivation, hunger, loneliness or any of the fundamental human needs that really made America lovable.

One day as a salesman I went into the store of a John Pearson on Ninth Street in Reading who had amassed the blessings of 25 stores and a Temple of a thousand people as the Lord’s minister of mercy healing. I discussed this disciple in one of our groups. We discussed fully and agreed that John Pearson was a demon who was wearing the Lord’s mantle to ward off the ugly winds of poverty and honest work. Somehow we got the idea of testing his own faith and trying his powers. We were going to manufacture a case and see just how close to God this person really was. Since I was black we needed several young blacks to pose as my relatives in determination of his ability to read a person’s character and spiritual skills.

Someone recommended a person who eventually recommended another more appropriate young person to act as my nephew. The nephew in turn recommended a girl to act his wife’s part. Several phone calls were made and an appointment was made. Charlene and Butch and myself went to his apartment for a reading. We fed him pure crap to see if he could see through it. I was enraged at the thought of a Holy man amassing 25 little stores and a Temple off the misery and hunger of a confused and helpless America. He (John) picked up our leads and fed us back pure bullshit. I told him that I didn’t have much money for the reading but would give him a small check. He asked if I owned a car or a home and if I would get the deeds to hold as good faith. I thought of all the jewelry and money he had gotten off of thousands of people in trouble in the name of the Holy God, the only thing Americans have to hold on to. I saw red and said “yes, here is a deed,” striking him in the face. He fell on a chair, said, “I have no money” and kicked at my groin. No money, I thought, at a time like this. I tore into him. At some point he pulled a gun from under his head, on a string or something. I took it from him. Everything had gotten quiet. My nephew and niece had fled in terror. I ran out and caught up with the girl who was a little hysterical. We ran away until apprehended by the police. I am amazed this could happen but think it was the Lord’s way of forcing me to keep a promise of commitment to Him, if not for good, then for evil. But I do firmly believe that John Pearson is one of the many demons who populated the earth at the time the heavenly rebellion and that him and his ilk are causing all the anger, confusion, repression, exploitation and fear of a evil, war-minded, ripoff world. Whether Charlene and Butch were meant to be sacrificed with me I do not know. I do know that they were in no way responsible for anything more than the frivolity of a prank-minded youth who, though confused and misguided, and really sincerely interested in finding a better world.

I am not sure what all this means to myself or anyone else. Sometimes I think I am absolutely right in ridding the world of a evil demon, and at others I am a little confused. I once hurt a manager of our health chain for stealing our books for the devil and felt no confusion, and in spite of my feeling about John, I do feel funny about the girl and boy being a pawn, either of mine or God.

N.T. 100-02.

After reviewing these two documents, appellant tore them up. The police, however, were able to patch the pieces back together.

To demonstrate that appellant was a former convict, the Commonwealth introduced the testimony of Wanda Seely, the Clerk of Court in Montgomery County, and of Detective Elmer Bitting of the Reading Police. Wanda Seely introduced the original record of the Montgomery County Court, which showed that on October 16, 1964, appellant had pleaded guilty to burglary, larceny, and receiving stolen property, and that the judgments of sentence imposed on those pleas had become final. N.T. 87-88. Elmer Bitting testified that as a member of the Reading Police force he had arrested appellant on March 17, 1964, pursuant to information supplied by the Pottstown Police Department. N.T. 91.

Appellant’s defense was insanity. He supported this defense by introducing the testimony of two witnesses. An acquaintance, Eddie Howard, testified that appellant was exhibiting bizarre behavior—including dyeing his hair a bright red-orange—the night before he attacked Pearson. N.T. 115-19. Dr. Joel Podolsky, a psychiatrist, testified that appellant was in a “paranoid mental state” at the time he attacked Pearson and was unable to appreciate “the nature and quality of his act [as being] wrong.” N.T. 132. Although Dr. Podolsky thought appellant knew he was attacking Pearson, he concluded that “[appellant] did not think it was wrong” because in his “distorted reasoning he thought that it was right to rid the world of demons and he was not acting against God; in fact, that perhaps he was meant to do this.” N.T. 133.

-1-

Appellant’s request for an arrest of the judgments of sentence may be summarily dismissed. In his post-verdict motions appellant stated in conclusory fashion that the evidence was insufficient to sustain the jury’s verdict. He did not state in what respect the evidence was insufficient. When an appellant has failed to state in what respect the evidence fails to sustain his conviction, his challenge to sufficiency will be considered waived. See Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980).

-2-

Appellant argues that he is entitled to a new trial because his confession should have been suppressed. He contends that the Commonwealth failed to prove that he knowingly and voluntarily waived his right against self-incrimination.

The Commonwealth had the burden of proving by a preponderance of the evidence that appellant’s confession represented a knowing and voluntary waiver of his right not to incriminate himself. Commonwealth v. Bullard, 465 Pa. 341, 350 A.2d 797 (1976), Commonwealth v. Jones, 459 Pa. 286, 328 A.2d 828 (1974); Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972). Our responsibility is “to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from these findings.” Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975). See also Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). In making that determination, we must consider the “evidence of the prosecution’s witnesses and so much of the evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Kichline, supra, 468 Pa. at 281, 361 A.2d at 290. See also Culombe v. Connecticut, 367 U.S. 568, 604, 81 S.Ct. 1860, 1880, 6 L.Ed.2d 1037 (1961); Commonwealth v. Goodwin, supra; Commonwealth v. Riggins, 451 Pa. 519, 304 A.2d 473 (1973); Commonwealth v. Davenport, 449 Pa. 263, 295 A.2d 596 (1972). It is, however, exclusively the province of the suppression court to determine the credibility of the witnesses and the weight to be accorded their testimony. Commonwealth v. Butch, 257 Pa.Superior Ct. 242, 390 A.2d 803 (1978).

Detective Donald Matz testified at the suppression hearing to the following effect. On March 6, 1977, at about 7:30 p. m., appellant on his own initiative requested to speak to a detective. After his Miranda rights were read to him, appellant indicated that he understood what those rights were but nonetheless wanted to make a statement and did not want to have an attorney present. The detective then engaged appellant in the question and answer session that resulted in the first part of appellant’s confession, which we have quoted above. When he had completed that session, appellant asked to make a further statement on his own. He was permitted to, and that resulted in the second part of his confession, also quoted above.

Appellant testified himself and introduced the testimony of two other witnesses—Lois Anderson and Dr. Joel Podolsky.

Appellant testified in great detail as to the circumstances of his arrest and the conditions of his confinement. He remembered where and when he was arrested and who was arrested with him. Notes of Testimony Pretrial Hearing # 1 at 60-62. He recalled in detail certain acts by the police designed to elicit information from him. Id. at 64r-65. He said that the police removed all of his clothes and gave him only a smock to wear. Id. at 66. He also said that he “asked at every chance” to call his attorney. Id. Appellant admitted having seen Detective Matz but denied that it was at his request, id. at 67, and said that his recollection of the crucial events that followed was weak, id. at 68. He said that he told Detective Matz after the completion of the question and answer session that the typewritten answers did not reflect'“what [he had been] talking about,” id. at 69, and that Detective Matz then encouraged him to supplement the answers with a personal statement. Of this statement appellant spoke only in the most general fashion:

[E]ventually somehow I got to the typewriter and I tried to type something, and-1 was trying to type. Whatever I was trying to type, I don’t know what I was trying to type. When I was finished with it, I couldn’t get any sense out of it. My thoughts in my head were fleeting and I just—just nothing seemed right. Nothing seemed normal. Nothing seemed to make any sense to me.

Id. at 69.

Appellant explained that the cause of his poor recollection and confused state of mind was that he was suffering from hallucinations caused by a “flashback” induced by coffee he drank when talking to Detective Matz. He also said that before his arrest he drank a lot of alcohol. Id. at 71-73.

Lois Anderson, an assistant public defender, testified that she spoke to appellant on March 10, 1977, and that he said he wanted a specific attorney to represent him and refused to be represented by a member of the public defender’s office unless he could choose the attorney who would represent him. In this regard, the record discloses that on March 18, 1977, appellant notified the district attorney’s office that he intended to represent himself.

Dr. Joel Podolsky testified, as he later did at trial, that appellant had a “paranoid personality at th[e] time [he confessed and was] closely on the border line of paranoid schizophrenia.” Notes of Testimony Pretrial Hearing # 2 at 18. Dr. Podolsky offered the following observation on appellant’s capacity to understand his Miranda rights.

I think he was compelled in this paranoid state that he was in—one can still remain somewhat realistic in knowing the surroundings about themselves and yet be in such a mental condition that one is compelled to give just continual—their continual distorted ideas of things and to not really understand what they are saying, to not know the legal rights in this. So, I don’t feel that Mr. Neely understood his legal rights regarding this, understanding in the way of—that, you know, his meaning to him at that time was distorted.

Id. at 17.

On cross-examination Dr. Podolsky said:

Q. Are you telling us, Doctor too, that he did not understand the words of the Miranda warning?
A. He may have heard the words, I don’t know what they meant to him at that time.
Q. Are you suggesting that he cannot and could not understand the phrase, “You have a right to remain silent and not answer any questions?”
A. He could—he could have heard the words. I don’t know how it registered in his—in his mind.
Q. But you are not suggesting he didn’t know what those words meant?
A. I’m suggesting I don’t know how it registered in his—in his mind.

Id. at 21.

We think this record adequately supports the suppression court’s findings that appellant knowingly waived his Miranda rights and voluntarily confessed. Certainly, the suppression court was entitled to reject appellant’s testimony and accept Detective Matz’s testimony to the effect that the confession was not coerced but given at appellant’s initiative. See Commonwealth v. Butch, supra. The record therefore supports the court’s finding that appellant voluntarily confessed. Whether appellant knowingly waived his Miranda rights is less certain, but we think it sufficiently shown.

While the second part of appellant’s confession may disclose an irrational mind—a conclusion given support by Dr. Podolsky’s testimony—this fact alone does not mean that appellant’s waiver was unknowing. A defendant may be suffering from a mental illness and still be capable of waiving his constitutional rights. Thus, in Commonwealth v. Tucker, 461 Pa. 191, 335 A.2d 704 (1975), the Supreme Court found that a defendant who was diagnosed as a “constitutional psychopath” with a low I.Q. was nonetheless capable of waiving his constitutional rights and making a voluntary confession. The Court noted that whatever the defendant’s mental infirmities he was able to provide “coherent and rational” testimony during the suppression hearing. Id., 461 Pa. at 196-97, 335 A.2d 704.

A knowing waiver requires that the defendant know of his rights before he acts to forgo their protection. See Miranda v. Arizona, 384 U.S. 436, 467-79, 86 S.Ct. 1602, 1624-30, 16 L.Ed.2d 694 (1966). It does not require that in deciding to waive his rights he act wisely or even that he be motivated by good reasons. Here, Dr. Podolsky’s testimony was that appellant was suffering from a mental illness that distorted his perception of reality. It did not establish that appellant was unable to understand his rights and that he was waiving them.

Moreover, other aspects of the record support the suppression court’s finding of a knowing waiver. The testimony of Lois Anderson demonstrated that two days after he made his statements, appellant was still refusing the assistance of counsel. His subsequent attempt to proceed pro se further indicates that his decision to waive his right to an attorney was not because he did not understand that right but rather because he believed—perhaps because of his distorted view of reality—that he would be better served if he represented himself. Similarly, appellant’s own testimony at the suppression hearing reveals that despite his mental illness, he was capable of understanding questions put to him and of formulating coherent answers to those questions.

-3-

Appellant also argues that he is entitled to a new trial because the lower court refused to sever the trial on the charge of former convict not to own a firearm from the trial on the other charges. We agree.

In Commonwealth v. Carroll, 275 Pa.Superior Court 241, 418 A.2d 702 (1980), we held that the trial on a charge of former convict not to own a firearm must be severed from the trial on other charges. We said:

We feel there is no question that appellant was prejudiced in this case. The crime of “Former convict not to own a firearm,” requires the Commonwealth to show a previous conviction for a violent crime. Thus, where these charges are brought with others, clearly the jury is exposed to the fact that this particular defendant had previously committed a violent crime.
Normally, in criminal trials, evidence of prior crimes committed by a particular defendant is not admissible and any reference to it constitutes reversible error. Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978). The purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes, he was more likely to commit that crime for which he is being tried.

Id., 275 Pa.Superior Ct. at 244, 418 A.2d at 704.

Accordingly, unless evidence of prior criminal conduct is otherwise admissible—for instance, to prove intent, identity, motive, or a common scheme—a trial court should grant a defendant’s motion to sever the charge of former convict not to own a firearm from the other charges.

The Commonwealth does not suggest that the evidence of appellant’s prior convictions of burglary, larceny, and receiving stolen property was in any way relevant to its proof that appellant committed aggravated assault and attempted robbery. Instead it argues that Carroll should not be followed in deciding this case because it “was not made retrospective.” Brief for Commonwealth at 3. The argument is without merit. It is true that Carroll had not been filed when this case was tried. Carroll did not, however, make new law but applied settled principles. It therefore applies to this case, and to all cases still to be tried or tried but pending on appeal when it was filed; no issue of retrospective effect is presented. Tice v. Nationwide Life Insurance Co., 284 Pa.Superior Ct. 220, 230, 425 A.2d 782, 788 (SPAETH, J., concurring) (1981); Commonwealth v. Williams, 232 Pa.Superior Ct. 339, 331 A.2d 875 (1974).

In support of its denial of appellant’s motion to sever, the lower court relied on Commonwealth v. Lowry, 260 Pa.Superior Ct. 454, 394 A.2d 1015 (1978), but that case is not in point. There we only held that on a charge of former convict not to own a firearm the Commonwealth was required to prove, as a necessary element of the offense, the defendant’s prior conviction, and that it could do so by testimony by the Clerk of Courts, to prove the record of the conviction, and by the arresting officer and parole officers, to prove the identity of the person convicted. We did not consider whether the charge should on motion be severed from other charges.

The lower court’s error in refusing to grant appellant’s motion to sever would not necessitate a new trial if the error was harmless. Error is harmless, however, only if harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). Here, that standard is not satisfied. For the evidence that appellant had been convicted of burglary, larceny, and receiving stolen property might have prejudiced appellant’s defense of insanity. Or to state it conversely: it cannot be said beyond a reasonable doubt that the evidence did not prejudice the defense.

In Pennsylvania legal insanity is defined by the M’Naghten Rule. See Commonwealth v. Roberts, 496 Pa. 428, 437 A.2d 948 (1981); Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614 (1981). The M’Naghten Rule is that a defendant is not criminally responsible if at the time he committed an otherwise criminal act, he was “laboring under such defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing; or, if he did wrong, that he did not know he was doing wrong . . . . ” M’Naghten’s case, 8 Eng.Rep. 718 (1843). If a defendant introduces evidence of insanity, the Commonwealth must prove sanity beyond a reasonable doubt. Commonwealth v. Tyson, 485 Pa. 344, 402 A.2d 995 (1979); Commonwealth v. Vogel, 468 Pa. 438, 364 A.2d 274 (1976). Thus, before the jury could properly convict appellant it had to be satisfied, beyond a reasonable doubt, not only that appellant committed the proscribed actus reus, but also that when he did, he possessed the requisite mens rea, which is to say, that he was not “laboring under such defect of reason, from disease of mind,” as not to know the nature and quality of his act, or, if he did, that it was wrong.

Here the jury was provided with considerable evidence regarding appellant’s mental state: The testimony of Eddie Howard and Dr. Podolsky and the contents of appellant’s written statement tended to show that when appellant attacked John Pearson, he was laboring under a defect of reason Within the M’Naghten Rule. It was therefore. the Commonwealth’s burden to prove that despite this evidence, appellant possessed the requisite mens rea. The Commonwealth attempted to sustain its burden by introducing the testimony of Detective Matz concerning appellant’s behavior several hours after the crime. This was a proper procedure. For if accepted by a jury, lay testimony may overcome expert testimony and be sufficient to sustain the Commonwealth’s burden. See Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614 (1981); Commonwealth v. Tyson, supra; Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974). The difficulty is that in deciding whether the Commonwealth had sustained its burden, the jury might have been prejudiced against appellant. It might have concluded that because appellant had already been convicted of crimes, he had a criminal disposition, and from that premise, have reasoned that he therefore possessed a mens rea at the time he attacked John Pearson. It is of course possible that despite the evidence of appellant’s prior convictions the jury appraised the evidence without prejudice to appellant. But we cannot be sure of that beyond a reasonable doubt.

As regards appellant’s conviction of former convict not to own a firearm, however, the case is quite different. On this charge appellant’s criminal record was a necessary element of the offense. Thus, the Commonwealth was not only entitled but required to prove appellant’s prior convictions. Commonwealth v. Lowry, supra. Evidence of the convictions was therefore admissible despite the fact that it may have prejudiced appellant’s defense of insanity.

The judgment of sentence for former convict not to own a firearm is affirmed. The judgments of sentence for attempted robbery and aggravated assault are vacated, and those cases are remanded to the lower court for new trial.

      . Appellant also argues that his confession should have been suppressed because he revoked it, as a testator would his will, when he tore up the paper on which it was written. Brief for Appellant at 10. A confession, unlike a will, however, is not an ambulatory instrument; the confessor, unlike the testator, does not, once he has knowingly and voluntarily confessed, have the power to change his mind.

      . Appellant also contends that he is entitled to a new trial on all the charges because the lower court abused its discretion by admitting in evidence a physician’s testimony that John Pearson was unable to testify at trial. The basis for appellant’s objection is that the physician had last examined Pearson three or four months before trial. Brief for Appellant at 11. This argument is without merit, for the physician testified that Pearson’s comatose condition precluded his ability to testify and that there would be “no or very slight further improvement.” N.T. 56-58.


source: Caselaw Access Project

license: Public Domain

text:
    444 A.2d 1209
    COMMONWEALTH of Pennsylvania v. Ralph Dennis WAREN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued May 6, 1981.
    Filed April 23, 1982.

      William R. Bernhart, Reading, for appellant.

      George C. Yatron, District Attorney, Reading, did not file a brief on behalf of Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from judgments of sentence for possession, possession with intent to deliver, and delivery of cocaine. Appellant argues, first, that the lower court erred in refusing to grant a mistrial or in giving appropriate curative instructions when the prosecutor in his closing address said that the case was “an air tight delivery case,” and second, that the lower court erred in its response to a question from the jury. We are not persuaded by the first argument but we are by the second. We therefore reverse and remand for new trial.

The principal Commonwealth witness was Detective Douglass Rentschler. He testified that on September 22, 1978, while working in an undercover capacity with the Reading Vice Division, he met appellant at a row home in Reading, 1763 Cotton Street, and appellant handed him a clear plastic packet with a clear substance inside, in exchange for which he gave appellant $85. Officer Terry Wagner testified that he waited outside, and that after coming out of the row house, Detective Rentschler gave him a clear plastic packet, which he in turn gave to Officer Keith Fister. Officer Fister testified that he took the packet to the State Police Crime Laboratory, and Paul Skrimcovsky of the laboratory testified that he determined that it contained .86 grams of cocaine.

Appellant’s defense was, in essence, that he had been “framed.” Through Officer Wagner he proved that in discussions among themselves, members of the Reading police had expressed doubt regarding Detective Rentschler’s “credibility and honesty.” N.T. 57-58. Appellant also called Patricia Ann Randazzo, with whom appellant was living at 1763 Cotton Street. She testified that on September 22, 1978, one Robert Zoltán was living with them. She further testified that when Detective Rentschler came to the door, [h]e asked Ralph [appellant] if he had any Cocaine and Ralph said no, he didn’t, and he said Zoltán and Ralph said, come on in and I’ll go see, and so he came in and sat down.

N.T. 80

She described what occurred next as follows:

Q. Did Zoltán room there?
A. A room, yes, the third floor; third floor front bedroom.
Q. Would you please—after Ralph went up to get Zoltán, Ralph came down the steps first, is that correct?
A. Yes, sir.
Q. How far behind was Zoltán?
A. He wasn’t on the steps at all. He got down maybe a minute later.
Q. What happened when Zoltán came down?
A. Well, he was almost to the bottom of the steps and he threw something to Rentschler.
Q. Did you see what he threw?
A. A little packet.
Q. Where did it land?
A. Rentschler caught it.
Q. Rentschler gave the money to who?
A. To Ralph.
Q. Where was Ralph then?
A. Well, Ralph was sitting on a chair and across from the chair it was Ralph and then I was on the floor aside of Ralph, and on the other side of the sofa Robert Zoltán, and Rentschler handed the money to Ralph and Ralph handed the money to Robert Zoltán right away.
THE COURT: Do I understand that when Zoltán came down the steps he threw a packet to Ralph?
THE WITNESS: No, to Rentschler.
THE COURT: Oh, to Rentschler.
THE WITNESS: Yes sir.

N.T. 84^86.

-1-

In the course of the prosecutor’s closing address, appellant’s counsel objected. The court responded, “Well, the last comment probably should be disregarded.” N.T. 89. Counsel moved for a mistrial. The court denied the motion. Counsel then said:

May I ask that the stenographer record that Mr. Zelinsky expressed his opinion that the case was an air tight delivery case.

Id.

“It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or any evidence of guilt of the defendant.” ABA Standards Relating to the Prosecution Function § 5.8(b) (Approved Draft 1971). However, “not every injudicious or improper comment by the prosecutor or the court is of such nature and quality that a new trial must be granted.” Commonwealth v. Taliaferro, 273 Pa.Superior Ct. 151, 417 A.2d 213 (1979). Instead, as the Supreme Court has noted:

Where an improper remark is made by the prosecutor, the ultimate test as to whether a reversal of the judgment of sentence is required must depend upon a finding of the reasonable impact of the statement on the jury’s factfinding function. Where the remarks are of such a nature that would seriously threaten the jury’s objectivity and is [sic] likely to deprive an accused of a fair trial, curative instructions are inadequate and a trial before another jury is required.
Commonwealth v. Brown, 489 Pa. 285, 298, 414 A.2d 70, 76 (1980).

In this case the prosecutor’s remark was brief, and it was immediately countered by the trial judge. No doubt the counter might have been stronger; the judge might have said that the remark should be disregarded instead of “probably” should be disregarded, and he might have explained that it was for the jury, not the prosecutor, to decide which parts of the conflicting testimony to believe. However, it is not entirely clear that the prosecutor was expressing his personal opinion on the witnesses’ credibility. The record does not disclose the context of his remark. It may well be that in context the remark was ambiguous, and that that is why the trial judge spoke as he did. On balance, we are not persuaded that the remark “seriously threatened] the jury’s objectivity.” Commonwealth v. Brown, supra.

-2-

After deliberating for something over an hour, the jury sent the trial judge a question: “No. 3, delivery of Cocaine. How do we determine guilt on number 3?” N.T. 102. The judge responded as follows:

Let me go over the definition of delivery. In order to find the defendant guilty of delivery of a controlled substance, in this case Cocaine, Exhibit No. 2, the packet, you must be satisfied beyond a reasonable doubt that the defendant did deliver this packet. Now, delivery means— well, let’s take this case, we won’t go beyond the facts here. The Commonwealth’s testimony was that, as I recollect and if I am wrong you use your own recollection, but as I recollect it the Commonwealth’s testimony was that the defendant himself handed it over to the Commonwealth witness, the detective. If you believe that, that’s delivery.
The defendant’s witness, Ms. Randazzo stated that,- no, it didn’t happen like that; that one Robert Zoltán came down the steps after being summoned by the defendant and tossed the packet to the defendant.[] Now, if the defendant had nothing to do with that—by the by, that kind of an action, if you believe it happened that way, is a delivery by somebody. It doesn’t have to be on a silver tray, it can be through the air.
If the defendant had the control of Zoltán at that point, then the defendant is as responsible for that delivery as was Zoltán. It’s possible for both of them to be responsible for a delivery, just as it’s possible for two persons to have joint possession. If they both have control, intent to control, ability to control, even though it’s not in the pockets of either but both of them have the intention of control and the ability to control, sharing it, they are both guilty of possession. They can be guilty of delivery.
On the other hand—oh, you keep in mind that the defendant’s testimony, witness’ testimony also is that after the aerial delivery the Commonwealth’s witness, Rentschler, paid money to the defendant who then turned it over to Zoltán. Certainly, if the defendant did not intend any delivery he would have stopped that conferring of money. On the other hand, if he had no control over it, it wasn’t his, it was not his Cocaine, and if he was not in cahoots with Zoltán, completely disinterested, then I would suppose that you could think that he had nothing to do with the delivery and would not be guilty of it. Anymore questions?

N.T. 102-104.

The following then occurred at side-bar:

MR. BERNHART: I would object to the Court’s instructions to the jury and the use of the words, “in cahoots with Zoltán” or that if he was not involved he would have stopped the payment of money.
THE COURT: I didn’t say he would have.
MR. BERNHART: I think that is, in effect, telling the jury he is guilty.
THE COURT: Don’t you think that’s true?
MR. BERNHART: No. I also would take exception to the Court’s charge that it could be joint delivery on an accomplice charge to the jury when there is no accomplice charge in the information, and it’s not the theory of the Commonwealth’s case, and in general the Court’s instructions as to constructive delivery. I think the question could have been adequately answered by referring to 35 P.S. 780-102, and at that point to go over the testimony presented at the trial when the Court did not do that in its initial charge is, in effect, directing a verdict of guilty in this case. We think it was noted by the Court’s new instruction that the jury has been told to find him guilty. Especially that part if he were not involved he would have stopped the transfer of the money or he would have done something.
Further, the Court’s charge that they could consider whether or not Zoltán was under the control of the defendant. I take those specific and general exceptions.
THE COURT: Thank you.

N.T. 104-105..

After the side-bar conference, the court told the jury:

THE COURT: Let me add one thing to what I have said and that is, I do not mean by what I have just told you that I think you should find a verdict of guilty. This is up to you, and unless you are satisfied beyond a reasonable doubt from whatever evidence you choose to believe that the defendant either completely by himself or with assistance of another which he either planned or used or adopted as his own, had control over and adopted it as his act, unless you believe that he made delivery, the defendant made delivery, unless you believe that, then he is not guilty. Otherwise, he is.
MR. BERNHART: May I have an exception?
THE COURT: Thank you.

N.T. 105-106. .

The jury retired, and fourteen minutes later returned with a verdict of guilty on all counts (Number 1, possession of cocaine; Number 2, possession with intent to deliver cocaine; and Number 3, delivery of cocaine). N.T. 106.

In his motion for new trial, appellant assigned as error, among other assignments, “[t]hat the Trial Judge ... instructed] the jury in response to its question that . . . the Defendant was guilty if he failed to stop the transaction by not delivering the money.” Motion for New Trial, para. 11. We think this assignment was well taken.

If the jury accepted Detective Rentschler’s testimony, the proof of appellant’s guilt was compelling, for according to the detective, appellant handed him a packet of cocaine and in return received $85. But if instead the jury accepted Ms. Randazzo’s testimony, the case was quite different, for according to her, appellant never possessed the cocaine, which, she said, was thrown by Zoltán to the detective.

The importance of this difference between the testimony of Detective Rentschler and Ms. Randazzo may be seen by considering the case of Commonwealth v. Cameron, 247 Pa.Superior Ct. 435, 372 A.2d 904 (1977). There five transactions were involved. In three of them the defendant handed the packets of heroin to the undercover officer. In the other two the defendant introduced the officer to the seller but stood by while the sales were consummated; he did not handle the money or the heroin. The jury found him guilty on three counts of delivery and on two counts of criminal conspiracy, the latter counts being based on the transactions in which the defendant never possessed the heroin. In affirming the delivery convictions we noted that delivery was defined as “the actual, constructive, or attempted transfer from one person to another of a controlled substance, other drug, device or cosmetic whether or not there is an agency relationship,” 35 P.S. § 780-102(b), and said that although “transfer” was not defined in the Act, we had to give it its commonly accepted meaning, namely, “[t]o convey or remove from one . . . person to another; to pass or hand over from one to another ...” Commonwealth v. Cameron, supra, 247 Pa.Superior Ct. at 440, 372 A.2d at 907 (quoting Black’s Law Dictionary 1669 (Rev. 4th ed. 1968)). Applying this definition, we found the evidence that the defendant had handed the packets to the undercover officer sufficient to prove delivery. In affirming the conspiracy convictions for the two transactions on which the defendant had not handled the money or the heroin, we found the evidence sufficient to support the inference that the defendant and the seller had made an agreement that the transactions should occur.

Commonwealth v. Metzger, 247 Pa.Superior Ct. 226, 372 A.2d 20 (1977), is also instructive. There the defendant picked up some LSD for his brother, who sold it to an undercover agent. He argued that he was not guilty of delivery because he had received no money himself but had only acted as an “errand boy.” We rejected the argument, pointing out that by his “own testimony he acknowledged that he purchased the drugs and transferred them to his brother who made the ultimate sale to the agent.” Id., 247 Pa.Superior Ct. at 230, 372 A.2d at 22. “The offensive conduct,” we said, was the transfer “of the prohibited substance.” Id.

Here, if it accepted the testimony of Ms. Randazzo, the jury might have found appellant not guilty. For according to that testimony he never possessed, and therefore never delivered, the cocaine. To be sure, appellant might even so have been found guilty of conspiracy, 18 Pa.C.S.A. § 903, or as an accomplice, 18 Pa.C.S.A. § 306, except that was not the charge or the Commonwealth’s theory. According to the Commonwealth, that is, according to Detective Rentschler’s testimony, appellant was not criminally liable for having agreed with Zoltán to deliver cocaine; nor was he criminally liable because he assisted Zoltán in delivering cocaine; instead, he was criminally liable as the deliverer of the cocaine. But according to Ms. Randazzo, appellant was not the deliverer: he transferred no “prohibited substance,” Commonwealth v. Metzger, supra, but only money from the detective to Zoltán; it was Zoltán who transferred the cocaine.

Appellant’s counsel was therefore correct when he objected that the effect of the lower court’s response to the jury’s question was that “the jury had been told to find [appellant] guilty.” For the court’s statement that “[c]ertainly, if [appellant] did not intend delivery he would have stopped that conferring of money” was the same as telling the jury that even if it accepted Ms. Randazzo’s testimony, still—“[certainly”—appellant was the deliverer of the cocaine. Thus appellant was left with no defense—which no doubt explains why the jury returned only fourteen minutes later with guilty verdicts.

It is true, as we have already indicated, that the case would be otherwise if the court had answered the jury’s question in the alternative. It might have said that if the jury accepted Detective Rentschler’s testimony, it could find appellant guilty of possession, possession with intent to deliver, and delivery, but that if it accepted Ms. Randazzo’s testimony, in order to find appellant guilty of those offenses it would have to decide whether he was an accomplice of Zoltán, this being followed by an explanation of what an “accomplice” is. There is some suggestion of such an alternative instruction in the court’s remarks. Thus the court referred to the possibility that appellant “had the control of Zoltán.” But these references did not amount to an explanation of what an accomplice, or a conspirator, is.

It is also true that after the side-bar conference, the court told the jury that “I do not mean by what I have just told you that I think you should find a verdict of guilty.” However, the court never withdrew its statement that “[cjertainly, if [appellant] did not intend any delivery he would have stopped that conferring of money.” The jury was thus left with the erroneous impression that appellant was guilty of delivery no matter how it regarded the testimony: whether it believed, as Detective Rentschler testified, that appellant transferred the packet of cocaine, or, as Ms. Randazzo testified, that Zoltán did.

The judgments of sentence are reversed and the case is remanded for new trial.

      . This was an inaccurate summary of Ms. Randazzo’s testimony. As appears from the quotation of her testimony on pages 1210 and 1211, supra, she said that Zoltán tossed the packet to Detective Rentschler. However, appellant’s counsel did not call this inaccuracy to the court’s attention. The court thus was not given the opportunity to correct it.

      . The Supreme Court held in Commonwealth v. Perkins, 485 Pa. 286, 401 A.2d 1320 (1979) that a defendant can be convicted as an accessory even though only charged as a principal.


author: WICKERSHAM, Judge:

text:
    444 A.2d 1214
    COMMONWEALTH of Pennsylvania v. William P. MOKLUK, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1980.
    Filed April 23, 1982.

      Lawrence Sager, Pottstown, for appellant.
    Donald A. Mancini, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   WICKERSHAM, Judge:

This is an appeal from a judgment of sentence entered on September 19,1979. Appellant Mokluk and his co-defendant Kenneth Buckwalter were, tried before a jury on December 6, 1977. Mokluk was found guilty of two counts of criminal conspiracy. Post-verdict motions were filed and were denied by the lower court on June 18, 1979. On September 19, 1979 Mokluk was sentenced to pay a fine of $250 and was placed on probation for five years. Mokluk filed his notice of appeal to the Superior Court on October 12, 1979.

The relevant facts in the instant case are as follows. On November 11, 1976 Maxwell’s Quarters, a historic building located near Valley Forge National Park was burglarized. Numerous antiques and Revoluntionary War items were taken. Police investigation of the incident focused on Norman Schulze. Schulze admitted taking part in the burglary and also implicated his brother Scott Schulze, Kenneth Buckwalter, and appellant Mokluk.

Mokluk was arrested and charged with burglary, theft by unlawful taking or disposition, receiving stolen property, criminal mischief, and criminal conspiracy. His trial, held jointly with that of Kenneth Buckwalter, commenced on December 6, 1977 after his accomplices Norman Schulze and Scott Schulze had entered guilty pleas pursuant to plea bargains they had negotiated with the Commonwealth. As condition of his plea bargain, Scott Schulze testified as to appellant Mokluk’s role in the burglary of Maxwell’s Quarters.

At the beginning of appellant Mokluk’s trial the lower court judge ordered the sequestration of all witnesses except the prosecuting police officer. During the testimony of Scott Schulze, his attorney, Dean Gascho, was present in the courtroom. Appellant Mokluk’s counsel attempted to impeach Scott Schulze’s testimony by suggesting, on cross-examination, that it had been motivated by Schulze’s desire to obtain a favorable plea bargain for himself. The Commonwealth then called Mr. Gascho to the stand where he testified that Scott Schulze had previously made statements to him which were substantially similar to those Schulze had given in his testimony in the instant case.

Appellant Mokluk’s counsel raises two contentions on this appeal, the first of which he phrases as

Did the Lower Court err in refusing to grant a new trial when Dean Gascho was allowed to testify in violation of the Court’s sequestration order?

Appellant’s Brief at 2.

We answer that question in the negative.

A trial court which, in the exercise of its discretion, permits a witness who has violated a sequestration order to testify will only be reversed if there was not reasonable ground for the action taken. In exercising its discretion, the trial court should consider (1) the seriousness of the violation, (2) its impact on the testimony of the witness and, (3) its probable impact on the outcome of the trial. Commonwealth v. Smith, 464 Pa. 314, 346 A.2d 757 (1975).

Additionally, the trial court should consider whether the witness intentionally disobeyed the order of sequestration so that he could determine what other witnesses were testifying to, and whether the party calling the witness procured his disobedience. Commonwealth v. Floyd, 259 Pa.Super. 552, 393 A.2d 963 (1978).

In the instant case the trial judge, the Honorable John E. Stively, Jr., found that Mr. Gascho violated the sequestration order unintentionally, and that Gascho’s testimony would not be affected by his presence in the courtroom during the testimony of other witnesses. N.T., 12/7/77, 302.

The trial court’s decision to permit Mr. Gascho to testify was proper. Mr. Gascho is an attorney, presumedly aware of the ramifications of perjury. He represented Scott Schulze since shortly after his arrest, conducted plea negotiations on Schulze’s behalf, and advised Schulze to enter a guilty plea to charges arising from the incident Schulze described in his direct testimony. Mr. Gascho’s actions during his representation of Scott Schulze were fully consistent with the testimony he presented in the instant case. Appellant Mokluk’s contention is without merit.

Appellant Mokluk phrases his second contention of error as

Was it proper to allow a lawyer to testify about an allegedly prior consistent, hearsay statement of his client to corroborate the testimony of the Commonwealth’s witness as to the defendant’s alleged criminal conduct?

Appellant’s Brief at 2.

Evidence of prior consistent statements of a witness are admissible if relevant to rebut a charge of recent fabrication. Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980).

Prior consistent declarations which are consistent with present testimony may be admissible if it is alleged that the witness is testifying from corrupt motives. Commonwealth v. Swint, 488 Pa. 279, 412 A.2d 507 (1980).

On cross-examination Mokluk’s trial counsel pointed out that Scott Schulze was testifying pursuant to the conditions of a plea bargain and that Schulze was to be placed on probation under the plea agreement. N.T., 12/7/77, 128-30.

An assertion that a witness is testifying in order to receive lenient treatment is sufficient a claim of corrupt motive so as to permit the introduction of prior consistent statements for purposes of rehabilitation. Commonwealth v. Griffin, 271 Pa. Super. 228, 412 A.2d 897 (1979).

Appellant Mokluk argues that even if evidence of prior consistent statements by Scott Schulze is admissible it should have been introduced during the rebuttal stage of the Commonwealth’s case rather than during direct testimony as was done in the instant situation. Brief of Appellant, 10.

While there is language in Commonwealth v. Wilson, 394 Pa. 588, 148 A.2d 234 (1959), cert. denied, 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed.2d 82 (1959), indicating that evidence of prior consistent statements is admissible only in rebuttal, we read “rebuttal” in a general sense as referring to testimony that contradicts a charge of recent fabrication or corrupt motive, rather than as a specific stage of a trial. A trial court normally has discretion to admit out of order evidence in rebuttal of an anticipated defense. This discretion is abused only if it unduly prejudices one of the parties. McGoldrick v. Pennsylvania Railroad Company, 430 Pa. 597, 241 A.2d 90 (1968).

Appellant Mokluk has not shown that he was unduly prejudiced by the admission of prior consistent statements of Scott Schulze during direct testimony, rather than during the rebuttal stage. The trial court committed no error in permitting Dean Gascho to testify as to the prior consistent statements of Scott Schulze.

Judgment of sentence is affirmed.

HOFFMAN, J., concurs in the result.


text:
    444 A.2d 1217
    Lynn Wagner MYERS, Charliann Baker and Florence Wimbish, Appellants, v. USAA CASUALTY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 3, 1981.
    Filed April 23, 1982.

      Joseph Mellace, Philadelphia, for appellants.
    Sharon M. Reiss, Philadelphia, for appellee.
    Before CERCONE, President Judge, and WICKERSHAM and BROSKY, JJ.
   WICKERSHAM, Judge:

On October 15, 1979, a complaint in assumpsit and trespass was filed in the Court of Common Pleas of Philadelphia County on behalf of appellants against appellee USAA Casualty Insurance Company. The complaint alleged that on October 24, 1975, almost four years previous to the filing of the complaint, plaintiff Lynn Wagner Myers was operating a motor vehicle in the city of Philadelphia which vehicle was involved in an accident with another motor vehicle resulting in personal injuries to her. The complaint included personal injury damage claims for plaintiff Charliann Baker and plaintiff Florence Wimbish, who were passengers in the vehicle operated by Lynn Wagner Myers. As to all three plaintiffs, the complaint sought punitive damages on the basis that USAA Casualty Insurance Company had allegedly acted willfully, intentionally, wantonly and recklessly in the handling of their claims. The defendant insurance company was identified in the complaint as the company which insured the motor vehicle involved in the accident and operated by Lynn Wagner Myers under a policy of insurance issued to Florence Wimbish. The complaint alleged further that the defendant had refused to make payment of medical bills, lost wages, impairment of earning capacity and loss of ability to work, incurred by the three plaintiffs, and finally, that it was defendant’s obligation to pay these sums under the Pennsylvania No-fault Motor Vehicle Insurance Act.

Preliminary objections were filed on behalf of USAA Casualty Insurance Company attacking those counts of the complaint seeking punitive damages and further, by way of demurrer, raising the defense that section 1009.106(c) of the Pennsylvania No-fault Motor Vehicle Insurance Act provides that an action may be commenced not later than two years after the date of the accident.

Subsequently, plaintiffs filed an amended complaint in trespass and assumpsit, which amended complaint expanded somewhat the allegations relating to punitive damages. Preliminary objections were again filed on behalf of the defendant of the same nature as before.

In an opinion and order dated July 29, 1980, the Honorable Edward B. Rosenberg ordered that plaintiffs’ complaint be stricken with prejudice. This appeal followed.

Turning first to the punitive damage issue, this has been recently settled by our supreme court in Smith v. Harleysville, 494 Pa. 515, 431 A.2d 974 (1981) in which the supreme court held as follows:

In any event, this Court has concluded in D’Ambrosio that there is no basis for the judicial creation of a cause of action for bad faith conduct. As stated in DAmbrosio,
‘[tjhere is no evidence to suggest, and we have no reason to believe, that the system of sanctions established under the Unfair Insurance Practices Act [ (Act of July 22, 1974, P.L. 589, § 1 et seq., 40 P.S. § 1171.1 et seq. (Supp.1980) ], must be supplemented by a judicially created cause of action. As one critic of California’s approach has observed,
‘[t]he California courts have created this “new tort” in an obvious attempt to afford more protection to insureds. However, it has not really been established that there is a need of this additional protection. * * * State insurance departments are intended to serve the public and handle complaints from insureds as to insurer practices on a regular basis. Likewise, state legislatures are capable of prohibiting what are considered to be unfair claims handling practices and of imposing penalties for violations.’
Kircher, Insurer’s Mistaken Judgment—A New Tort?, 59 Marq.L.Rev. 775, 786 (1976). Surely it is for the Legislature to announce and implement the Commonwealth’s public policy governing the regulation of insurance carriers. In our view it is equally for the Legislature to determine whether sanctions beyond those created under the Act are required to deter conduct which is less than scrupulous.’

Id., 494 Pa. at 512, 431 A.2d at 975 (quoting D'Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 508, 431 A.2d 966, 970 (1981)).

As regards the statute of limitations issue, appellants argue in their brief that “[t]he Act clearly provides that suit may be started two years from the loss, that is, the non-payment by the insurer.” Brief for Appellants at 6. Appellee responds that under Donnelly v. DeBourke, 280 Pa.Super. 486, 421 A.2d 826 (1980), the limitations period begins on the date that the injury is sustained. We recently overruled Donnelly in Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981). Both Donnelly and Bond involved tort actions by injured plaintiffs against third party tortfeasors and the applicable statute of limitations was the general two year limitation for personal injury actions found at 42 Pa.C.S. § 5524. The issue in Donnelly and Bond was when the limitations period begins to run where the right to bring the tort action is restricted by section 301(a) of the No-Fault Act. Under section 301(a), tort liability is abolished with respect to any injury arising out of the maintenance or use of a motor vehicle except in the following situations:

(1) An owner of a motor vehicle involved in an accident remains liable if, at the time of the accident, the vehicle was not a secured vehicle.
(2) A person in the business of designing, manufacturing, repairing, servicing, or otherwise maintaining motor vehicles remains liable for injury arising out of a defect in such motor vehicle which is caused or not corrected by an act or omission in the course of such business, other than a defect in a motor vehicle which is operated by such business.
(3) An individual remains liable for intentionally injuring himself or another individual.
(4) A person remains liable for loss which is not compensated because of any limitation in accordance with section 202(a), (b), (c) or (d) of this act. A person is not liable for loss which is not compensated because of limitations in accordance with subsection (e) of section 202 of this act.
(5) A person remains liable for damages for non-economic detriment if the accident results in:
(A) death or serious and permanent injury; or
(B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care and recovery of the victim, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100) is in excess of seven hundred fifty dollars ($750). For purposes of this subclause, the reasonable value of hospital room and board shall be the amount determined by the Department of Health to be the average daily rate charged for a semi-private hospital room and board computed from such charges by all hospitals in the Commonwealth; or
(C) medically determinable physical or mental impairment which prevents the victim from performing all or substantially all of the material acts and duties which constitute his usual and customary daily activities and which continues for more than sixty consecutive days; or
(D) injury which in whole or in part consists of cosmetic disfigurement which is permanent, irreparable and severe.
(6) A person remains liable for injury arising out of a motorcycle accident to the extent that such injury is not covered by basic loss benefits payable under this act, as described in section 103.

(footnotes omitted).

The section 301(a) restriction involved in both Donnelly and Bond was the $750.00 threshold requirement specified in subsection (5)(B). Donnelly held that the limitations period begins to run on the date of the injury despite the fact that the tort action is abolished until the $750.00 threshold is met. In Bond, we overruled Donnelly and held that the limitations period does not begin to run until the $750.00 threshold is met. We reasoned in Bond that until one of the requirements of section 301(a) is met no cause of action against the third party tortfeasor even exists and to hold that the limitations period begins to run prior to the existence of a cause of action would be unjust and unnecessary.

Unlike Donnelly and Bond which involved tort actions by injured plaintiffs against third party tortfeasors, the instant case involves actions by injured plaintiffs against their own no-fault insurance carrier. The applicable statute of limitations in the instant case is found in the No-Fault Act at section 106(c). Section 106(c) is set forth in pertinent part as follows:

(c) Time limitations on actions to recover benefits.— (1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

It is clear by reading the language of section 106(c) that the legislature did not intend the limitations period to begin to run on the date of the injury as appellee suggests. Section 106(c) establishes a two year statute of limitations and a four year statute of repose. By creating an ultimate limitation of four years, the legislature obviously contemplated that the two year statute of limitations would begin to run at some point between that ultimate limitation date and the date of the injury. Therefore, the injury could not have been intended to be the triggering event for the limitations period.

Having decided that the limitations period is not triggered by the occurrence of the injury, the task remains to determine at what point the limitations period does begin to run. The cause of action in the instant case is predicated upon an alleged breach of the insurer’s contractual duty to pay no-fault benefits. At common law, the statute of limitations in an action for breach of contract does not begin to run until the occurrence of the breach. A. J. Aberman, Inc. v. Funk Building Corp., 278 Pa.Super. 385, 420 A.2d 594 (1980). This is consistent with the general rule that a statute of limitations does not begin to run until the accrual of the cause of action. Pennsylvania Turnpike Commission v. Atlantic Richfield Company, 31 Pa.Commonwealth Ct. 212, 375 A.2d 890 (1977), affirmed 482 Pa. 615, 394 A.2d 491 (1978). It should be recalled that this was the analytical basis for our opinion in Bond v. Gallen, supra in which we held that the statute of limitations in tort actions against third party tortfeasors does not begin until the right to such actions accrues.

Section 106(c)(1) of the No-Fault Act provides that the action must be commenced no later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident. “Loss” is defined in the general definition section of the No-Fault Act, section 1009.-103 as follows:

‘Loss’ means accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to, allowable expense, work loss, replacement services loss, and survivor’s loss.

We believe that “loss” as that term is defined in the No-Fault Act must be equated with the common law concept of breach of contract because until such breach occurs, the claimant does not know that he has incurred any economic detriment. Moreover, until a breach has occurred, no cause of action based on contract exists and, as we concluded in Bond, to hold that the limitations period begins to run prior to the existence of a cause of action would be unjust and unnecessary.

The instant action is not barred by the four year limitations period because the complaint was filed within four years of the accident. It is not clear, however, if the complaint was filed within two years of the alleged breach of insurer’s contractual duty to pay no-fault benefits. The issues as to what constitutes breach of insurer’s contractual duty to pay no-fault benefits and as to when such breach occurred under the particular facts and circumstances of this case were not considered by . the lower court. Accordingly, we must remand in order to allow the lower court to determine these issues.

The order of the lower court is reversed, and the case is remanded for proceedings consistent with this opinion.

      . Lynn Wagner Myers, Charliann Baker and Florence Wimbish.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. (Supp.1981-82).

      . (1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.
      Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 106, 40 P.S. § 1009.106(c)(1) Supp. (1981-1982).

      . Appellants frame the statement of questions involved as follows:
      I. Whether the Court abused its discretion in granting the Defendant’s Preliminary Objections and dismissing the amended Complaint?
      A. Whether such Preliminary Objections should be granted when the plaintiffs were not permitted to respond to same by Motion Court?
      B. Whether the Complaint was filed after the period set forth by the statute of limitations in the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.106?
      C. Whether the punitive damage claim set forth in Count II, IV & VI of the Complaint state a valid cause of action in Pennsylvania?

        Brief for Appellants at 1.


text:
    444 A.2d 1222
    COMMONWEALTH of Pennsylvania v. Gerald H. KAUFFMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1981.
    Filed April 23, 1982.

      Kenneth Lee Rotz, Gettysburg, for appellant.
    Gary E. Hartman, District Attorney, Gettysburg, did not file a brief on behalf of Commonwealth, appellee.
    Before WICKERSHAM, WIEAND, and MONTEMURO, JJ.
   WICKERSHAM, Judge:

This is an appeal from the judgment of the Court of Common Pleas of Adams County imposing a fine on appellant for the summary offense of failing to stop a vehicle at the scene of an accident resulting in damage to a vehicle or other property which is driven or attended by any person in violation of the Vehicle Code, 75 Pa.C.S. § 3743(a). Appellant was initially found guilty by District Justice Donald G. Weaver in Gettysburg and ordered to pay a fine. He appealed his summary conviction to the court of common pleas which held a de novo trial on the charge before the Honorable Oscar F. Spicer, President Judge on the December 26, 1979 in the Adams County Courthouse. Appellant was again found guilty and ordered to pay a fine of three hundred dollars ($300.00) and the cost of this proceeding, such sentence being handed down immediately after the finding of guilty. This appeal followed.

As we said in Commonwealth v. Picker, 293 Pa.Super. 381, 439 A.2d 162 (1981):

The state of this record is reflective of the confusion which existed in the legal community before our en banc decision in Commonwealth v. Koch, [288] Pa.Superior Ct. [290], 431 A.2d 1052 (1981). That decision made it clear that post-verdict motions are required to be filed in order to preserve issues for appeal after the pronouncement of guilt in de novo trials held upon an appeal from the decision of a district justice. Id. See also Pa.R.Crim.P. 1123 and recent comment thereto. In the present case, we note that there were no post-verdict motions filed. We cannot, however, find a waiver on this basis because the lower court never apprised appellant Picker on the record of his right to file post-verdict motions as is mandated that the court do under Pa.R.Crim.Pr. 1123(c). Commonwealth v. Koch, supra. See also Commonwealth v. Johnston, [292] Pa. Superior Ct. [224] [437] A.2d [16], (1981); Commonwealth v. Williams, [290] Pa. Superior Ct. [158], [434] A.2d [179], (1981). Cf. cases with respect to motions to modify sentence under Pa.R.Crim.P. 1405(c), Commonwealth v. Walton, [289] Pa.Superior Ct. [411], 433 A.2d 517 (1981); Commonwealth v. Koziel, [289] Pa.Superior Ct. [22], 432 A.2d 1031 (1981); Commonwealth v. Rush, [281] Pa.Superior Ct. [92], 421 A.2d 1163 (1980). In fact, the lower court, just as the lower courts in Koch, Williams and Johnston improperly pronounced verdict and sentence simultaneously through a written order made subsequent to the conclusion of the do novo trial. This effectively precluded the appellant from having the opportunity to file post-verdict motions which should properly be filed after the verdict is rendered, but before sentence, in this case a fine, is imposed. See Comment to Pa.R.Crim.P. 1123. The proper procedure for litigants to follow in this situation would be to file a motion to vacate the improperly imposed judgment of sentence in order to allow for the filing of post-verdict motions. Appellant Picker, however, should not be faulted for his failure to do so because of the confusion which existed before Koch and the recent amendments to the Comments to Rules 67 and 1123 of the Rules of Criminal Procedure. See Commonwealth v. Johnston, supra at [180] n.3.
Finally, we note that in this case the lower court, pursuant to Pa.R.App.P. 1925(b), issued an order directing appellant to file of record a concise statement of the matters complained of on appeal. Thus, the appellant did so and the lower court specifically addressed these issues in its opinion in support of an order pursuant to Pa.R. App.P. 1925(a). This, however helpful, is certainly not an adequate substitute for the filing of post-verdict motions because the latter ask the lower court to reconsider its decision in light of alleged errors whereas the former simply requires the court to justify and articulate the reasons for its decision. This distinction is crucial in light of the fact that one of the main purposes for requiring post-verdict motions is to give the lower court an opportunity to correct asserted errors at that early stage without necessitating the expenditure of time and judicial energy in taking a costly appeal to the appellate courts. See Commonwealth v. Koch, [288] Pa. Superior Ct. at [295], 431 A.2d at 1055. In Koch, we stated that ‘[t]he purpose of such motions is twofold: (1) to afford the trial court in the first instance, the opportunity to correct asserted trial errors; and (2) to clearly and narrowly frame issues for appellate review. Commonwealth v. Kinsey, 249 Pa. Superior Ct. 1, 375 A.2d 727 (1977).’ While a concise statement of matters complained of on appeal may narrow the issues for review, it does not allow the lower court the opportunity to correct its errors because the notice of appeal has already been filed and the lower court is thereby divested of jurisdiction to act further on the case. Pa.R.App.P. 170(a).

Id., 293 Pa.Superior Ct. at 384, 439 A.2d at 163-64.

For all of the foregoing reasons, the judgment of sentence is vacated and the case is remanded for the filing of post-verdict motions nunc pro tunc within ten days of the remittance of the record in this case. Jurisdiction is relinquished.

      . Appellant is represented by Kenneth Lee Rotz, Esquire, who raises the following issues:
      I. Did the trial Court err in holding that section 3743(a) of the vehicle code, accidents involving damage to attended vehicle or property, 75 PA.C.S.A. § 3743(a) requires culpability on the part of the accused that rises no higher than ‘negligence’ as defined by section 302(b)(4) of the Crimes Code, 18 PA.C.S.A. § 302(b)(4)?
      II. Was trial counsel ineffective for failing to obtain or call the witness, Kevin Sheely, or to make his testimony available by deposition or interrogatory?
      Brief for Appellant at 3.


text:
    444 A.2d 1224
    ESTATE OF Sara Nemeroff GREENBERG, deceased. Appeal of Ann FINKELMAN. Stanley Nemeroff (Executor).
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1982.
    Filed April 23, 1982.

      Steven Paul Burkett, Philadelphia, for appellant.
    Nancy Marilyn Weinman, Philadelphia, for participating party.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   WICKERSHAM, Judge:

Sara Nemeroff Greenberg died June 28, 1978 leaving a will dated October 24, 1977. She was not survived by a spouse, but was survived by issue. By her will, testatrix devised and bequeathed her estate as follows: $1,000 to her sister, Ann Finkelman; five $1,000 pecuniary legacies to her five named grandchildren; premises 6340 Algon Avenue, Philadelphia, Pennsylvania, and contents to her daughter, Arlene Brehm, and the remaining balance as follows: one-third to her daughter, and the remaining two-thirds to her son, Stanley Nemeroff.

During the course of the administration of the estate, the executor, Stanley Nemeroff, filed a petition for citation to compel respondent, Ann Finkelman, to return personal property to the estate, specifically a diamond engagement ring and a diamond wedding band. The petition alleged, inter alia, that at the time of her death, Sara Nemeroff Green-berg owned both items which were located in an apartment which decedent shared with respondent, Ann Finkelman, and which were allegedly taken by respondent in violation of the rights of those interested in the estate. Subsequently, the court by order dated November 29, 1978 ordered and decreed that the prayer of the petition for citation be granted and a citation issued to Ann Finkelman to show cause why she should not return decedent’s engagement ring and wedding band to the estate.

On March 5, 1980 a hearing was held in the Court of Common Pleas of Philadelphia County, Orphans’ Court Division, before the Honorable Paul Silverstein relating to the petition for citation. One of the witnesses for the respondent was Faye Goodman of Melrose Park, Pennsylvania who testified as follows:

Q.....What is your relationship to the respondent, Miss Finkelman, if any?
A. We’re friends.
A. I go to Ann Finkelman for my manicures.
Q. Did you know the decedent, Sara Greenberg?
A. I met her and I knew her, yes.
Q. Were you ever present at a time when a conversation took place between the decedent, Mrs. Greenberg, and Ann Finkelman concerning a diamond wedding band and a diamond engagement ring?
A. Yes. Yes, I was.
Q. And what were the circumstances that this—in other words, where were you at the time the conversation took place?
A. In the bedroom, in Ann’s bedroom.
Q. What were you doing at that time?
A. I was getting a manicure.
Q. Okay. And what was the conversation?
A. Her sister walked into the bedroom and said—she was looking for her gold chain with a chai, and she said, ‘Ann, do you have it?’ So Ann went over to her jewelry box and took the rings out and she said, ‘Here,’ she said, C have your rings, but I don’t have your chain with the chai.’ She said,‘I gave them to you, Ann. You know that.’ And Ann put them back in the jewelry box, and Ann then said, ‘Why don’t you look in your purse? Maybe your chain is in your pocketbook, in your purse.’ With that, her sister turned around and walked out of the room, into the livingroom. And Ann put the rings back in the jewelry box.
Q. Where was the jewelry box located?
A. On the dresser, in the bedroom.
Q. And you don’t—do you have—did you say you have a recollection as to the date .of this conversation?
A. Not the date. I know it was in February.
Q. Of 1978?
A. ’78, right.

Record at 44-47.

By opinion and order dated December 16, 1980, Judge Silverstein confirmed the account nisi and directed the respondent to return the rings to the executor for the purpose of administration and distribution in accordance with the will. Judge Silverstein concluded that the decedent never made an inter vivos gift to anyone and never intended to give up title to the rings during her lifetime. Thus, he concluded, the respondent failed to prove the gift by clear and convincing evidence. Exceptions to the adjudication were filed by Ann Finkelman and subsequently argued before the orphans’ court division en banc consisting of Administrative Judge Edmund S. Pawelec, and Judges Theodore S. Gutowicz, Paul Silverstein, Judith J. Jamison and Senior Judges Charles Klein and Kendall H. Shoyer, Specially Presiding. In an opinion sur exceptions by Judge Jamison on behalf of the court en banc, the order of the auditing judge was affirmed, the exceptions dismissed and the adjudication confirmed absolutely. This appeal followed.

In his opinion confirming the account nisi dated December 16, 1980, Judge Silverstein correctly set forth the questions presented at the hearing held March 5, 1980 when he said:

The questions presented at the hearing were as follows:
1. Has the respondent shown by independent evidence a prima facie inter vivos transfer so as to permit her to testify to transactions which took place, purportedly, during the decedent’s lifetime?
2. Did respondent sustain her burden of establishing an inter vivos gift of the rings by clear and convincing evidence?
With respect to the first question, the independent evidence offered by the respondent to prove a prima facie case rests in the testimony of one Faye Goodman, a business acquaintance and friend of the respondent. Her testimony, taken at its best, does not materially support the respondent’s position. It is equivocal and subject to two interpretations.
Both sides have quoted the same testimony, which appears on pages 46 and 47 of the transcript. In that alleged conversation, the witness testified that the decedent came into her sister’s bedroom (decedent and respondent shared an apartment) and asked if the sister had the decedent’s chain and chai. The respondent is quoted as saying: T have your rings’ to which the decedent is alleged to have stated: T gave them to you.’ What did the decedent mean and to what was she referring?
The respondent contends that T gave them to you’ means the rings, whereas the executor contends that such a statement can just as easily refer to the chain and chai. Furthermore, the quoted statement of the respondent that T have your rings’ connotes that she was holding the rings that belonged to the decedent in a bailment sense, as suggested by the executor, as opposed to a sense in which the respondent was merely giving a description of the nature of the objects.

Lower ct. op. at 3-4.

In the recent case of In re: Estate of Robert G. Baker, 495 Pa. 522, 434 A.2d 1213 (1981), the question before the supreme court was the disputed ownership of various items of personal property, including a John Deere bulldozer. The Court of Common Pleas of Cameron County had issued a decree directing appellants to surrender the bulldozer to the appellee, executor of the estate. Appellant claimed ownership of the bulldozer as an inter vivos gift. The court said:

The controversy concerning the ownership of the bulldozer involves two interrelated legal questions. First, was the testimony of appellants concerning the alleged inter vivos gift admissible under the Dead Man’s Act? Second, was a valid inter vivos gift of the bulldozer proven?

The application of the Dead Man’s Act has been thoroughly discussed elsewhere. See Hendrickson Estate, 388 Pa. 39, 130 A.2d 143 (1957). There is no dispute here that the three conditions enumerated in Hendrickson Estate are present in this case and bring the provisions of the Dead Man’s Act into play. The difficulty here is the application of the Dead Man’s Act where there is an allegation of an inter vivos gift. Appellants argue that the evidence shows a gift by decedent to them thereby removing the adverse interest of the decedent and making appellants competent to testify. We have encountered this argument in the past and have fashioned the following answer to it:

In such situations, both the alleged donee and the estate have an interest in the property which may be adverse to the interest of the decedent, depending on whether the alleged transfer took place or not. We held [in Ford Estate, 431 Pa. 185, 245 A.2d 443 (1968) ] that if a valid inter vivos transfer can be shown by independent evidence before the admission of any testimony by the alleged donee, the donee will be considered to represent the interest of the decedent and will be permitted to testify. Conversely, if the alleged donee fails to establish a prima facie gift by independent testimony before he takes the stand, he will not be competent to testify.

Friedeman v. Kinnen, 452 Pa. 365, 368-69, 305 A.2d 3, 4 (1973) (emphasis in original).

.... The appellants had the burden of proving that the decedent, with donative intent, had delivered, either actually or constructively, the bulldozer to them and that the decedent had divested himself of and invested them with requisite dominion over the bulldozer. Donsavage Estate, 420 Pa. 587, 218 A.2d 112 (1966). ‘To establish such a gift inter vivos the evidence must arise not only from legally competent witnesses but also be clear, direct, precise and convincing.’ Id., 420 Pa. at 594, 218 A.2d at 118. Because no prima facie evidence of a gift was established, appellants’ testimony was correctly ruled incompetent under the provisions of the Dead Man’s Act. Certainly if no prima facie evidence of an inter vivos gift was presented, the existence of an inter vivos gift was not proven.

Id., 495 Pa. at 528, 434 A.2d at 1215-16.

Instantly we concur with the analysis and conclusion of Judge Silverstein and the confirming opinion of Judge Jami-son writing for the court en banc, that the evidence to establish a gift inter vivos of the diamond wedding band and engagement ring was not clear, direct, precise and convincing.

As Judge Jamison said:
Sara Nemeroff Greenberg, the decedent, resided with her sister, the respondent, in a two bedroom apartment at the Park Drive Manor Apartments. The alleged transfer of the rings took place in January, 1978, while the decedent was suffering a heart attack and was being rushed by the respondent to the hospital for medical treatment.
The Auditing Judge found that decedent’s later statement to the respondent that T gave them (the rings) to you to keep,’ was ambivalent or equivocal. Language to this effect was as consistent with a bailment as a gift.
Testimony by the executor that he had seen the rings on his mother’s fingers on May 7, 1978, one month before her death was found to contravene respondent’s allegation that an absolute gift had been made before February, 1978.
The record discloses that on about six occasions, decedent had given her rings to a friend or neighbor for safekeeping before she went into the hospital. It is reasonable to conclude that in January, 1978, before a hospitalization, decedent gave her rings to her sister ‘to keep’ or safeguard for her. We agree with the finding of fact by the Hearing Judge that ‘the decedent never made an inter vivos gift to anyone and never intended to give up title to the rings in her lifetime.’ The Auditing Judge, who had the opportunity to observe and hear the witnesses, concluded that the respondent had failed to prove the gift by clear and convincing evidence. The determination of the credibility of witnesses by the Auditing Judge is binding on the Court en banc absent manifest error or unwarranted inferences or conclusions. Shelly Estate, 484 Pa. 322 [399 A.2d 98] (1979); Jacob’s Trust Estate, 320 Pa. 539 [183 A. 49] (1936); Kauffman’s Estate, 281 Pa. 519 [127 A. 133] (1924); Accord; McCrea Estate, 475 Pa. 383 [380 A.2d 773] (1977); Estate of Frances Siloff, No. 2203 of 1977, May 30, 1979. Our review of the record indicates that the Auditing Judge’s findings of fact and conclusions of law were proper. ‘His findings of fact are tantamount to the verdict of the jury and since the record reveals no caprice or arbitrariness in the findings, they are binding upon us.’ Rachaelson Estate, 32 D&C2d 722, 723, 14 Fid.Repr. 149, 150 (1964), Pavlinko Estate, 399 Pa. 536, 160 A.2d 554 (1960).

Opinion En Banc at 2, 3.

The testimony of Mrs. Goodman was equivocal and because no prima facie evidence of a gift was established, appellant’s testimony was correctly ruled incompetent under the provisions of the Dead Man’s Act.

Decree affirmed. Each party to pay own costs.

      . Appellant frames the issues as follows:
      I. Did the Court err in failing to find that Decedent made an inter vivos gift to Appellant of two rings belonging to Decedent? II. Did the Court abuse its discretion by not considering the interest or lack of interest in the outcome of the litigation when evaluating the testimony of the witnesses?
      Brief for Appellant at 3.
      And summarizes her argument as:
      The Auditing Judge made an initial finding that Decedent had not given the rings to the Appellant. However, the Auditing Judge misconstrued the conversation which clearly and unequivocally confirmed the making of the gift. The Auditing Judge based all of his subsequent findings on his initial misconstruction. The Court en banc, in reviewing the findings of the Auditing Judge, found that the Auditing Judge had misconstrued the conversation, but then it misquoted the conversation. Had the Auditing Judge initially and the Court en banc on review correctly read the testimony, they could have come to no conclusion other than that a gift was made of the rings.
      The Auditing Judge applied an incorrect standard of proof to Appellant. The Auditing Judge required that Appellant prove the making of a gift by clear and convincing evidence. Less evidence is required to establish a gift when a gift has been alleged to have been made to close relation or friend. Appellant was a close relation to the Decedent.
      The Auditing Judge chose to believe the witnesses offered by the Appellee because he believed their testimony fit into a bailment theory which the Auditing Judge created, despite the fact that the witnesses offered by the Appellee had an interest in the outcome. In considering the testimony of Appellee’s witnesses, the Court failed to consider their interest in the outcome.
      Brief for Appellant at 6.