author: HOFFMAN, Judge: McEWEN, Judge,

text:
    458 A.2d 231
    COMMONWEALTH of Pennsylvania v. Kevin MINNIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1982.
    Filed March 18, 1983.
    Petition for Allowance of Appeal Denied Nov. 18, 1983.

      Sharon L. Steingard, Philadelphia, for appellant.
    Eric Beller, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the evidence was insufficient to adjudicate him delinquent for robbery and that out-of-court identifications should have been suppressed. We find the evidence sufficient. However, because the out-of-court identifications resulted from a police station confrontation violating appellant’s right to counsel, they should have been suppressed. Accordingly, we reverse and remand.

Appellant contends that the evidence was insufficient to establish his identity as a participant in the robbery. The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all reasonable inferences favorable to it, there is sufficient evidence to find every element of the crime and the identity of the accused beyond a reasonable doubt. Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979); Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973) (identity an essential element of prosecution’s case). The entire record with all evidence actually received must be considered, whether or not the lower court’s rulings thereon were correct. Commonwealth v. Harper, supra. So viewed, the facts are as follows:

Appellant was arrested on October 14, 1980, six blocks from where a group of three youths had just snatched a gold chain from a young women’s neck. The chain-snatching occurred within ten feet of a street light, with the perpetrator two-and-one half feet from the victim’s face, and the other two youths standing on either side a step back. The victim’s boyfriend saw the incident from the other side of a car. After another group of youths joined the three and chased the victim and her boyfriend back to the victim’s house, the boyfriend pointed the assailants out to a nearby police officer. (N.T. 12/17/80 at 19). The arresting officer, on patrol a few blocks away, responded to a radio call describing three youths entering the south end of a particular alley. He arrested appellant who matched the description and was running from the north end of the alley with another youth. About one-half hour later, the police called the victim and her boyfriend to the police station, where they both picked appellant as the assailant, rather than two other youths they saw standing with the police. Id. at 8-9, 17. Appellant was subsequently charged as being either the perpetrator or an accomplice in the robbery. After a suppression hearing on December 17, 1980, at which the victim, her boyfriend, and the arresting officer testified, the lower court denied appellant’s motions for suppression and recusal. At the adjudicatory hearing on January 29, 1980, the Commonwealth rested upon the record developed at the suppression hearing, while appellant presented an alibi witness. The lower court adjudicated appellant delinquent for robbery and placed him on probation, prompting this appeal.

Appellant contends that the evidence was insufficient because the victim’s identifications were qualified, because the boyfriend identified appellant from his jacket, and because the record allegedly leaves reasonable doubt as to whether appellant personally snatched the chain. It is well-settled that, even though one person may be the actual perpetrator of a crime, another is equally criminally liable if he aids that person with the intent of promoting the criminal act. 18 Pa.C.S.A. § 306; Commonwealth v. Bridges, 475 Pa. 535, 381 A.2d 125 (1977); Commonwealth v. Everett, 297 Pa.Superior Ct. 320, 443 A.2d 1142 (1982). Although the prosecution may be required to prove that the defendant personally committed the criminal act if it so restricts its charge, see Commonwealth v. Perkins, 485 Pa. 286, 401 A.2d 1320 (1979) (equally divided court); Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966); cf. Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971) (possessory crime), the Commonwealth here charged appellant alternatively with accomplice liability, Delinquency Petition (“in company with another”), and proved he was part of the initial group standing threateningly close to the victim and acting in concert with the perpetrator. In reviewing the sufficiency of the identification evidence, we note that, even though “vague, tenuous and uncertain” identifications standing alone are insufficient, see Commonwealth v. Farrington, 219 Pa.Superior Ct. 104, 280 A.2d 623 (1971); Commonwealth v. Sharpe, 138 Pa.Superior Ct. 156, 10 A.2d 120 (1939), our courts have held that “evidence of identification ... needn’t be positive and certain in order to convict, although any indefiniteness and uncertainty in the identification testimony goes to its weight.” Commonwealth v. Hickman, supra 453 Pa. at 430, 309 A.2d at 566 (1973). Accord, Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). Similarly, although identification based solely on common items of clothing and general physical characteristics is insufficient to support a conviction, see e.g. Commonwealth v. Crews, 436 Pa. 346, 260 A.2d 771 (1970), such evidence may be considered to establish identity along with other circumstances and the proffered identification testimony, see In the Interest of Cox, 265 Pa.Superior Ct. 469, 402 A.2d 534 (1979). Here, the victim’s boyfriend, although he qualified his identification by reference to appellant’s jacket, did not shy away from identifying appellant himself and not just his clothing. The victim was also familiar with appellant as a member of the group and the probable perpetrator. The identifications were consistent throughout and mutually corroborating. Moreover, although we find the out-of-court identifications should be suppressed, they are relevant to our review of the sufficiency of the evidence, see Commonwealth v. Hickman, supra, and were given without hesitation shortly after the crime while memories were fresh. Commonwealth v. Donald, 227 Pa.Super. 407, 323 A.2d 67 (1974). Finally, appellant’s being arrested while fleeing from police six blocks from the crime, though a circumstance to be considered with caution, see Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976); Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973), further reduces doubt as to identity, especially when considered with the boyfriend’s testimony about promptly reporting the crime to an officer near the scene and the arresting officer’s responding to the radio call. Accordingly, upon reviewing the record as a whole, we find the evidence sufficient to support the adjudication of delinquency.

Appellant contends next that evidence of the out-of-court identifications should be suppressed because he was denied his right to counsel during the procedure. Counsel’s presence at an out-of-court identification procedure helps ensure that the confrontation will be conducted with a minimum of suggestiveness and that it will be observed by a person attentive to the suspect’s interest who will later be able to develop a record of any suggestive influences brought to bear, even those unnoticed by the victim or the suspect. Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974). See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Pennsylvania, the right to counsel attaches at the time of arrest, and exists for identification confrontations occurring after arrest, except prompt on-the-scene confrontations. Commonwealth v. Richman, supra. In promulgating the Richman rule, the majority of our Supreme Court specifically rejected an exception to the right of counsel for all prompt confrontations regardless of location, and acknowledged an exception only for prompt on-the-scene confrontations. Id., 458 Pa. at 174 n. 5, 187-88, 320 A.2d at 354 n. 5, 358. In subsequently applying this exception, our courts have consistently noted that shortness of time between the crime and the confrontation is the paramount consideration, e.g., Commonwealth v. Aaron, 255 Pa.Superior Ct. 289, 386 A.2d 1006 (1979), and have been fairly expansive in construing “on-the-scene,” Commonwealth v. Allen, 287 Pa.Superior Ct. 88, 429 A.2d 1113 (1981) (block from scene, suspects handcuffed in police van); Commonwealth v. Williams, 271 Pa.Superior Ct. 114, 412 A.2d 601 (1979) (hospital); Commonwealth v. Aaron, supra (hospital); Commonwealth v. Dickerson, 226 Pa.Superior Ct. 425, 313 A.2d 337 (1973) (at scene, suspect handcuffed in police van). However, our courts have retained the on-the-scene requirement, and have not held a police station confrontation to fall within it. We cannot agree with the Commonwealth’s contention that there is no difference in suggestiveness between presenting a suspect handcuffed in a police van and presenting him at the police station. That the police have thought enough of the suspect to bring him to the station bears upon the witness’s mind. It suggests the police are no longer searching but are satisfied they have found the criminal. In going to the police station, the witness also invests additional time and efforts to cooperate with the police and upon arriving there encounters many potential, though perhaps unintentional, suggestive influences in the police-controlled setting that do not exist even in police company at a hospital or on the street. Moreover, in a police station confrontation, the “countervailing policy considerations,” Russell v. United States, 408 F.2d 1280 (D.C. Cir.1969)—such as ensuring more prompt thus more reliable identifications, facilitating release of the innocent, and enabling police to more quickly resume pursuit of the guilty or terminate investigation so as to reduce further intrusions upon privacy—do not so readily outweigh the benefits of honoring the accused’s right to counsel as they do in an on-the-scene identification. Because the right to counsel is subject to the accused’s waiver, honoring it by appropriate warnings need not result in the delay required to obtain an attorney. See Commonwealth v. Riley, 284 Pa.Superior Ct. 280, 425 A.2d 813 (1981) (valid waiver of counsel at lineup). If the accused chooses counsel on the other hand, obtaining such assistance at the police station, because of the station’s fixed location and communication and other facilities, would normally cause less delay and interference than doing so at various possible crime scenes. Finally, although exceptional circumstances of weather, place of apprehension, or a witness’s conduct in reporting might sometimes influence the determination, generally, if a confrontationn can be delayed long enough to bring the witness and the suspect to the police station, it can safely be delayed the small additional time needed to obtain counsel. The circumstances here, in which appellant crossed precinct lines in a dense urban neighborhood, may have made the police station seem the natural place for a confrontation, but they were not so exceptional as to require a confrontation without counsel. Accordingly, because the post-arrest station house confrontations were conducted in violation of appellant’s right to counsel, the resulting out-of-court identifications should have been suppressed. We therefore reverse the judgment of sentence and remand for proceedings consistent with this opinion.

Reversed and remanded.

McEWEN, J., files a concurring opinion.

McEWEN, Judge,

concurring:

I concur in the result. It is certainly clearly established that counsel must be present at any identification procedure after an arrest so as to ensure the elimination of suggestiveness from such procedures; and, it is just as clearly established that there must be exceptions to the rule, as, for example, when the confrontation is prompt and on-the-scene. The majority opinion of our distinguished colleague, Judge J. Sydney Hoffman, provides a fine exposition of the issues attendant to this question. It seems, however, that while the majority opinion observes that “our courts ... have been fairly expansive in construing ‘on-the-scene’ ” {See p. 59), the majority opines that a prompt on-the-scene identification procedure is the only exception to the rule that counsel must be present for any confrontation procedure. It is that specific holding that causes me to be hesitant to join in the majority opinion since, while the courts seem to employ the term “prompt on-the-scene confrontation” to define the exception, the decisions construing that exception have not, as the foregoing excerpt from the majority opinion notes, been so narrowly restrictive. I simply am hesitant to apply so limited a label to the exception. The fact remains, however, that the facts of this case do not present such circumstances as to invoke the exception and, therefore, I concur in the result.

       Because of our disposition of this case we need not address appellant’s remaining contentions that the out-of-court confrontation irreparably tainted the in-court identifications and that the suppression judge should have recused himself from conducting the adjudication hearing.


source: Caselaw Access Project

author: CERCONE, President Judge:

license: Public Domain

text:
    458 A.2d 235
    Arlington W. MYERS, on Behalf of Himself and all Others Similarly Situated, Appellants, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF LABOR AND INDUSTRY, and Charles J. Lieberth, Secretary of the Pennsylvania Department of Labor and Industry and Clement J. Cassidy, Workmen’s Compensation Referee.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1982.
    Filed March 25, 1983.

      Henry C. Haefner, Lancaster, for appellants.
    Daniel R. Schuckers, Harrisburg, for appellees.
    Before CERCONE, President Judge, and SPAETH and CAVANAUGH, JJ.
   CERCONE, President Judge:

This appeal involves pre-trial orders dismissing plaintiff’s action on grounds of judicial and quasi-judicial immunity and holding the class issues thereby mooted. We affirm.

I. Factual and Procedural History

In late 1979, Mr. Myers filed a claim for workmen’s compensation benefits and a hearing was held before the referee (defendant) on February 6, 1979. When no decision had been filed by the referee before August 18, 1980, Myers then filed a Petition for Review in the nature of a Complaint in the Commonwealth Court, complete with class action allegations. In particular, Myers sought a mandamus commanding the referee to issue a decision in Count I; in Count

II, Myers sought damages in the form of interest on any award by the referee, computed from 90 days after the hearing until time of award. Myers also alleged that all those persons in whose workmen’s compensation cases decisions had not been rendered within 90 days of their hearings were members of the class. Thereafter, and before the class issue was decided, a decision was filed in Myers’ workmen’s compensation case.

By Opinion and Order dated December 19, 1980, the Commonwealth Court held that Count I (mandamus) was mooted by the filing of a decision in Myers’ workmen’s compensation case. With regard to Count II (seeking interest), the Commonwealth Court held that the Department of Labor and Industry was immune from suit as was the Secretary of that Department. The Commonwealth Court also held that it lacked jurisdiction over the action against the referee and transferred that action to the Court of Common Pleas of Lancaster County. Myers does not complain of any of these rulings on this appeal.

The Court of Common Pleas held that the mooting of the representative plaintiff’s claim for mandamus was fatal to the class action allegations and also held that the referee was immune to suit for damages under doctrines of judicial and quasijudicial immunity. While we disagree with the former holding, we agree with the latter holding and affirm the judgment below.

II. The Class Action Issue

The mooting of a class claim by satisfying the named plaintiff is a familiar tactic. Generally, it is not successful in ending the class action. One sued by a class is immediately tempted to overcome the class by mooting the representative’s claims. But mooting of a claim depends upon the controversy involved having been ended. Under the federal rule, the Court considered the problem presented in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). That court held:

The controversy may [still] exist, however, between a named defendant and a member of the class represented by the named plaintiff even though the claim of the named plaintiff has become moot.
419 U.S. at 402, 95 S.Ct. at 559.

The Sosna Court applied that rule to a certified class and five years later it was applied to a pre-certification class in US. Parole Comm’n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) where the Court held:

When the claim on the merits is “capable of repetition yet evading review”, the named plaintiff may litigate the class certification issue despite loss of his personal stake in the outcome of the litigation.
445 U.S. at 397, 100 S.Ct. at 1209.

These concerns for absent class members are compelling, but Pa.R.Civ.P. 1714 provides:

Prior to certification, the representative party may discontinue the action without notice to the members of the class if the court finds that the discontinuance will not prejudice the other members of the class.

While the “discontinuance” in this case is not at the request of the representative party, it seems plain that the minimal safeguards of Rule 1714 should also attend judicial terminations of class actions, at least when that “discontinuance” occurs because of the mooting of the class representative’s claim. Thus, since there was no finding below that the “discontinuance would not prejudice the other members of the class,” Pa.R.Civ.P. 1714, ordinarily we would reverse and remand with directions to determine whether the discontinuance would or would not prejudice the rights of absent class members. Even when it is found that the discontinuance would not prejudice absent class members, we think “that the best course” is to allow absent class members a reasonable time to come forward and intervene. See Alessandro v. State Farm Mut. Auto. Ins., 259 Pa. Superior Ct. 571, 583, 393 A.2d 973, 979 (1978), modified on other grounds, 487 Pa. 274, 409 A.2d 347 (1979).

However, as we hold that the referee was absolutely immune, it is clear that absent class members could not have been prejudiced. As such, we now turn to the merits of that immunity.

III. The Immunity Issue

The question presented on this branch of the present appeal is whether workmen’s compensation referees enjoy a judicial or quasi-judicial immunity. This requires an examination of the nature of the duties of such referees. In the present statutory scheme, workmen’s compensation referees set hearings, hold hearings, admit and exclude evidence, make findings of fact, and come to conclusions of law. The referee is also empowered to investigate the petition and answer, and to subpoena witnesses and other evidence. He is, in short, the trial judge of the workmen’s compensation system.

There can be no serious question that such a person generally enjoys a quasi-judicial immunity. See generally Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Petition of Dwyer, 486 Pa. 585, 406 A.2d 1355 (1979); McNair’s Petition, 324 Pa. 48, 187 A. 498 (1936). While it is clear that the judicial immunity of judicial officers of general jurisdiction is absolute, 20 Penna.L.Encyc., Judges, § 10 at 76, the court has not been called on to decide whether the judicial immunity of officers of inferior jurisdiction or those enjoying quasi-judicial immunity is absolute or not. Thus, in McNair, supra, the court qualified its holding as follows:

As it was admitted there was no bad faith and the mistake was an error of judgment____
324 Pa. at 62-63, 187 A. at 505.

And in Dwyer, supra, the Court held:

Applying the principle of quasi-judicial immunity to the present case, we find that the petitioners are quasi-judicial and/or quasi-prosecutorial officers, that the proceedings at which the extensions and variance were granted were quasi-judicial and that therefore, in the absence of allegations of bad faith or corruption, the petitioners in granting the extensions and variance, are insulated from criminal prosecution for the consequences of their actions.
486 Pa. at 595, 406 A.2d at 1360 (emphasis supplied).

In this case, the plaintiffs allegations are that by failing to issue a decision “promptly”, the referee acted “willfully”. While it is not altogether clear that this constitutes an allegation of “bad faith”, we are not willing to remand for amendment of the petition in order to consider this matter on the merits. Rather, putting the semantics aside, we assume arguendo that “bad faith” is what plaintiff meant by his allegation of “willfulness”. Nonetheless, we hold that inferior judicial officers and those shielded by quasi-judicial or quasi-prosecutorial immunity are absolutely immune from liability in civil damages for the consequences of activities which are at the core of their statutorily assigned tasks. Our rationale was put enormously well by Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949):

It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complains to the guilty, it would
be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to satisfy a jury of his good faith.

Quoted with approval in Zdaniewicz v. Sands, 288 Pa. Superior Ct. 420, 425-426, 432 A.2d 231, 234 (1981); see also Barr v. Mateo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) (establishing absolute civil immunity for federal administrative officers.)

Finally, we are confronted with a situation considered by the Supreme Court as inappropriate for liability, to wit, the “nature of the servant’s decision or action in question is such that it may not be measured against a predictable standard of care”, DuBree v. Commonwealth, 481 Pa. 540, 544, 393 A.2d 293, 295 (1978). What “predictable standard” determines the promptness of a decision? That there is none strongly inclines toward the view that even the “possibility of litigation may tend to discourage the making of clear choices.” DuBree, sufra. As such, this is an appropriate occasion to invoke a rule of absolute immunity from liability in civil damages.

We are not today confronted with an official who is alleged to, at the outer reaches of his duties, in some manner maliciously and perhaps corruptly, use his office to directly bring about unlawful harm and mischief. Whether the immunity we hold applies sub judice extends that far wé do not decide. What we do hold is that it would be intolerable to allow a civil damage remedy for the consequences of the manner and fashion in which quasi-judicial officers make the precise determinations confined to them by statute. As the Court in McNair said of judicial officers:

In certain instances, their decisions are reviewable on appeal, but otherwise they must be left free to exercise an independent judgment in the conduct of their office.

324 Pa. at 55, 187 A. at 502 (emphasis supplied). We hold this case involves one of those “instances”.

Order affirmed.

      . When it is found that the discontinuance will prejudice absent class members, it follows, of course, that a reasonable time should be allowed for absent class members to come forward and intervene.

      . 77 P.S. § 802.

      . 77 P.S. § 775.

      . 77 P.S. § 834.

      . 77 P.S. § 773; and see generally, Bush v. Workmen’s Comp. App. Bd., 63 Pa. Commonwealth Ct. 289, 291-292, 438 A.2d 660, 662 (1981).

      . 77 P.S. § 833.

      . 77 P.S. § 831.

      . 77 P.S. § 833.

      . In Morgan v. Sanderson and Porter, 146 Pa. Superior Ct. 37, 21 A.2d 475 (1941), we described the office of a workmen's compensation board referee as “similar to that of a master in an equity proceeding or [of] the trial examiner for an administrative body.” 146 Pa. Superior Ct. at 39, 21 A.2d at 475.


author: WIEAND, Judge:

text:
    458 A.2d 239
    COMMONWEALTH of Pennsylvania v. Edward P. KALE, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted March 2, 1982.
    Filed March 25, 1983.
    Petition for Allowance of Appeal Denied July 22, 1983.

      Horace M. Ehrgood, Lebanon, for appellant.
    William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

This is an appeal from an order denying four of five P.C.H.A. petitions, each of which sought to withdraw a separate plea of guilty. The order was entered following a consolidated hearing at which appellant was represented by court appointed counsel. Appellant contends, as he did in the court below, that the guilty plea colloquies were defective in all instances for failing to recite the elements of the offenses to which pleas of guilty were being entered and that trial counsel was ineffective for failing to ensure that the guilty pleas were entered knowingly, intelligently and voluntarily. A brief review of the guilty plea proceedings is necessary to an understanding of appellant’s several contentions and our decision to affirm the order of the trial court.

On July 25, 1972, the appellant, Edward P. Kale, Sr., entered a counseled plea of guilty to a charge of operating a motor vehicle while under the influence of alcohol. Although the trial court did not specifically enumerate and define the elements of the offense during the guilty plea colloquy, appellant told the court that he understood the elements and nature of the offense to which he was pleading guilty. On October 24, 1972, appellant entered a plea of guilty to a second and subsequent charge of operating a motor vehicle while under the influence of alcohol. This plea of guilty was negotiated by appellant’s counsel. The guilty plea colloquy was full and complete, contained an enumeration of the elements of the offense, and established a factual basis for the entry of a plea of guilty. On the same day, October 24, 1972, appellant was sentenced on his pleas to both driving while under the influence offenses. For the first offense he was sentenced to pay a fine of $300.00 plus costs of prosecution. For the second offense, he was sentenced to undergo imprisonment for not less than IIV2 nor more than 23 months. No direct appeal was filed from either judgment of sentence.

On July 3, 1973, appellant entered a negotiated plea of guilty to two counts of turning in false fire alarms. The false alarms had been turned in on May 5, 1973, while Kale was on work release from the Lebanon County Prison. Although the record colloquy does not contain a further enumeration of the elements of the offense, appellant did tell the trial court that he had discussed the same with his attorney and understood them. He was committed the same day to Wernersville State Hospital for examination, diagnosis and treatment on account of a history of alcoholism. On September 4, 1973, he was sentenced to pay fines of $400.00 and to serve two consecutive terms of imprisonment for not less than one nor more than two years, the sentences to run concurrently with the balance of the sentence for driving while under the influence. There were no appeals from these sentences.

Finally, on May 5, 1977, Kale entered a counseled plea of guilty to theft by unlawful taking. The plea was entered immediately prior to commencement of trial. The charge was explained during the guilty plea colloquy as follows: “In that on or about January 2nd of 1977 you did exercise an unlawful control of removable property of another, namely, a dog valued in the amount of approximately $150.00, the property of Harold Spangler.” On June 20, 1977, he was sentenced to pay a fine, make restitution and was placed on probation for a period of two years. Again, no appeal was filed.

We find it unnecessary to consider the merits of appellant’s several petitions. He has failed completely to explain the delays, which vary from 7 years, 6 months to 2 years, 10 months, in filing requests to withdraw these pleas of guilty. He has neither alleged nor proved that he was unaware of his appellate rights or that counsel was ineffective for failing to pursue an expressed desire to appeal. These unexplained delays bar a consideration of the merits of the several claims which appellant seeks to assert in collateral attacks on his prior convictions. Commonwealth v. Shaffer, 498 Pa. 342, 354, 446 A.2d 591, 597 (1982) (Concurring Opinion by Roberts, J., with O’Brien, C.J., and Nix, J., joining); Commonwealth v. Minarik, 493 Pa. 573, 583, 427 A.2d 623, 628-629 (1981) (Concurring Opinion by Roberts, J., with O’Brien, C.J., and Nix, J., joining). See also: Commonwealth v. Gardner, 499 Pa. 263, 266 n. 2, 452 A.2d 1346, 1347 n. 2 (1982); Commonwealth v. Jumper, 494 Pa. 451, 454, 431 A.2d 941, 942 (1981); Commonwealth v. Shore, 487 Pa. 534, 541, 410 A.2d 740, 744 (1980) (Concurring Opinion by Roberts, J.): Commonwealth v. Roach, 307 Pa.Super. 506, 509, 453 A.2d 1001, 1003 (1982). Cf. Commonwealth v. Thompson, 302 Pa.Super. 19, 26, 448 A.2d 74, 77.(1982);

In Commonwealth v. Shaffer, supra, a majority of the Supreme Court, in an opinion by Flaherty, J., repeated the principle of law which holds: “When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing ... it is well established that ‘a showing of prejudice on the order of manifest injustice,’ Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973), is required before withdrawal is properly justified.” Id. 498 Pa. at 346, 446 A.2d at 593 (emphasis in original). The majority went further and held that in determining whether manifest injustice had occurred it would not apply a per se rule. Instead, it held that a record colloquy which fails to include a statement of the elements of an offense will not demonstrate “prejudice in the order of manifest justice” if all the circumstances disclose that the plea of guilty was, in fact, entered knowingly, intelligently and voluntarily. See also: Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982).

Because it is unnecessary to reach the merits of appellant’s claims, we neither decide nor express opinion regarding the existence of prejudice on the order of manifest injustice where a record colloquy fails to contain a statement of the elements of the offense but (1) a counseled plea is the product of negotiations, or (2) a defendant has discussed the elements of an offense with his attorney and assures the trial court that he understands the nature and elements of the offense to which he is pleading guilty, or (3) the elements of an offense are contained in the title of the offense, as, for example, operating a vehicle while under the influence of intoxicating liquor and/or turning in false fire alarms, or (4) the defendant has previously pleaded guilty to the same offense, or (5) the defendant has neither alleged nor proved that he failed, in fact, to understand the offense to which he entered a plea of guilty.

Order affirmed.

      . The fifth P.C.H.A. petition was filed for the purpose of withdrawing a plea of guilty which had been entered in 1969 to a charge of turning in a false fire alarm. The hearing court allowed this plea to be withdrawn and awarded a new trial because there was no record of the guilty plea colloquy, if any. This order was not appealed by the Commonwealth.

      . The record discloses an unresolved conflict in the testimonies of appellant and his trial counsel as to whether the plea was entered pursuant to a plea bargain requiring a suspended sentence.


author: SPAETH, Judge:

text:
    458 A.2d 242
    WHITE CROSS STORES, INC. # 14, Appellant, v. HARTFORD INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 17, 1982.
    Filed March 31, 1983.

      Herman C. Kimpel, Pittsburgh, for appellant.
    Robert E. Wayman, Pittsburgh, for appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from a judgment entered following an order denying appellant’s motions for judgment n.o.v. and for a new trial. Appellant argues, inter alia, that the lower court erred in conditioning appellant’s right to collect insurance proceeds from appellee on appellee’s receipt of notice from the insured that appellant was a designated vendor. We reverse and remand for a new trial.

Becton, Dickinson and Co. manufactures disposable syringes. Between December 1, 1970, and December 1, 1971, Becton was insured by appellee, Hartford Insurance Company. The insurance policy contained the following provision:

It is agreed that the ‘Persons Insured’ provision is amended to include any person or organization (herein referred to as ‘Vendor’) as an Insured but only with respect to the distribution or sale in the regular course of the Vendor’s business of the Named Insured’s products ....
IT IS UNDERSTOOD AND AGREED THAT SUCH COVERAGE AS IS AFFORDED UNDER THIS ENDORSEMENT SHALL BE AT THE DESIGNATION OF THE NAMED INSURED.

On February 11, 1981, Becton forwarded a letter to appellant, White Cross Stores, Inc., under the caption “Product Liability Certification.” The letter stated, “Enclosed is our Certificate No. 105 which replaces our previously issued Certificate No. 56 due to a change of insurer.” The enclosed certificate stated:

Becton, Dickinson and Company, et al, hereby certifies to: White Cross Stores, Inc.
That products liability (including broad form vendors clause) is insured by the Hartford Accident and Indemnity Company for a minimum single combined limit of $1,000,000.
In event of cancellation it is intended that ten (10) days’ written notice thereof will be mailed to the address stated above by Becton, Dickinson and Company.
cc. Hartford Group
File

The opinion of the trial judge states that appellee never received a copy of this correspondence: “There [was] no evidence that Becton designated to Hartford that White Cross was to be afforded coverage under the policy of insurance____” Slip op. at 10.

On February 12 and February 19, 1971, George Hook purchased from appellant some syringes manufactured by Becton. The syringes were used to administer insulin to Hook’s son, Jeffrey, but because they were not calibrated, an overdose resulted. On February 1, 1973, Hook, on Jeffrey’s behalf, filed suit against appellant seeking damages for the injuries inflicted by the overdose of insulin. The parties settled the case on January 20, 1975, for $900,-000.

On July 25, 1975, appellant filed suit against .appellee seeking indemnity for “one half of the amount expended by way of settlement and one-half of the costs of defense—or whatever pro rata distribution may be appropriate upon a determination of the amount of coverage applicable from both plaintiff’s [appellant’s] insurer’s policy and defendant’s [appellee’s] policy.” R.R. at 7a. The trial judge directed a verdict in favor of appellee. Appellant’s motions for judgment n.o.v. and for a new trial were denied, judgment was entered in favor of appellee, and this appeal was taken.

In denying appellant’s motions, the lower court held that the language in the policy, “IT IS UNDERSTOOD AND AGREED THAT SUCH COVERAGE AS IS AFFORDED UNDER THIS ENDORSEMENT SHALL BE AT THE DESIGNATION OF THE NAMED INSURED,” when given its “plain meaning,” made it “clear that only those vendors of Becton’s products made known to Hartford by Becton would be afforded coverage under the endorsement.” Slip op. at 10. In support of this conclusion, the court reasoned that “[t]o hold otherwise would render the block printed portion of the endorsement meaningless.” Slip op. at 10. But that isn’t so: the clause doesn’t say that Becton, as the named insured, must make known to appellee, the insurance company, the identity of a vendor. It says, rather, that coverage is afforded “at the designation of” Becton. This language can be reasonably interpreted to limit coverage to such vendors as have been selected by Becton, so that the policy will not extend to unauthorized sales of Becton’s product.

It isn’t fair to the vendor to say, as the lower court in effect does say, “Even though you had every reason to believe you were covered when you received a letter from the insured saying you were, with a carbon copy to the insurance company, you weren’t, because, through some fluke, the insurance company didn’t receive the carbon copy.” Nor do we see any commercial justification for such a result. Apparently the lower court believed that no coverage was afforded unless appellee as the insurance company consented to each designation by Becton as the insured. But given that the insured is paying premiums, the insurance company should not be able to say, “We’ll accept your premiums, but we retain the option to refuse to cover the vendors you designate.”

Because the lower court erred in concluding that appellant was excluded from coverage by the designation provision, it should not have directed a verdict in favor of appellee. The judgment will therefore be vacated and the case remanded for a new trial.

So ordered.


text:
    458 A.2d 244
    COMMONWEALTH of Pennsylvania v. Michael WILSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 19, 1982.
    Filed March 31, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, BECK and MONTEMURO, JJ.
   WIEAND, Judge:

Michael Wilson was tried by jury and, although acquitted of burglary, was found guilty of theft by unlawful taking and receiving stolen property. After post verdict motions had been denied, Wilson was sentenced to concurrent terms of imprisonment for not less than one nor more than five years. On direct appeal, he contends that the evidence was insufficient to support the verdicts of guilty and that the sentences were illegal. Our review of the record discloses that there was adequate evidence to sustain the convictions but that the imposition of dual sentences under the circumstances of this case was illegal.

In determining the sufficiency of the evidence, we are required to view the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether, accepting as true all evidence and reasonable inferences favorable to the Commonwealth, the evidence is sufficient to prove beyond a reasonable doubt that a crime was committed and that appellant was the perpetrator. Commonwealth v. Goldblum, 498 Pa. 455, 466, 447 A.2d 234, 240 (1982); Commonwealth v. Horner, 497 Pa. 565, 568, 442 A.2d 682, 683 (1982); Commonwealth v. Young, 494 Pa. 224, 228, 431 A.2d 230, 232 (1981); Commonwealth v. Lowry, 306 Pa.Super. 277, 279, 452 A.2d 552, 553 (1982); Commonwealth v. Stasiak, 305 Pa.Super. 257, 263, 451 A.2d 520, 523 (1982).

A brief summary of the evidence, which consisted of testimony by the arresting officer and the owner of the burglarized store, discloses the following facts. At approximately 11:40 p.m. on February 27, 1979, Officer Thomas Hoban, while on routine patrol, received a call to investigate a break in at the “Little Card Shop” located at 44 North Eighth Street in the City of Philadelphia. Within three or four minutes thereafter Hoban found appellant running in the 900 block of Market Street, approximately one and a half blocks from the burglarized card shop. Appellant was carrying a stereo component receiver, with dangling wires. Tangled in the wires were items of costume jewelry bearing tags marked “Little Card Shop.” .Other articles of jewelry with similarly marked tags were found in appellant’s pockets.

Naomi Brill, the owner of the Little Card Shop, arrived at her store shortly after midnight in response to a police summons. She observed that a plate glass window had been broken and that display cases in the shop had been ransacked and overturned. Numerous items from the front of the store were found to be missing. She said that she did not know appellant, and had not given him permission to enter the store through the window or take property from the store. She identified the items found in appellant’s possession and estimated their value to be $575.00.

This evidence, although circumstantial, was sufficient, if believed by the fact finder, to support findings that appellant was guilty of theft by unlawful taking and theft by receiving stolen property. It was sufficient to permit a finding that appellant unlawfully took and exercised control over movable property of another with intent to deprive the owner thereof. 18 Pa.C.S. § 3921(a). Appellant’s unexplained possession of the stolen property within minutes after the theft had occurred and while he was running away from the location of the store where the theft had occurred were circumstances from which a legitimate inference of guilt could be drawn. Commonwealth v. Williams, 468 Pa. 357, 362 A.2d 244 (1976); Commonwealth v. Lovette, 271 Pa.Super. 250, 413 A.2d 390 (1979), rev’d on other grounds, 498 Pa. 665, 450 A.2d 975 (1982); Commonwealth v. Plath, 267 Pa.Super. 1, 405 A.2d 1273 (1979); Commonwealth v. Bailey, 250 Pa.Super. 402, 378 A.2d 998 (1977); Commonwealth v. Murray, 246 Pa.Super. 422, 371 A.2d 910 (1977); Commonwealth v. Franks, 235 Pa.Super. 327, 340 A.2d 456 (1975); Commonwealth v. Simmons, 233 Pa.Super. 547, 336 A.2d 624 (1975). See also: Commonwealth v. Vernille, 275 Pa.Super. 263, 418 A.2d 713 (1980); Commonwealth v. Jones, 242 Pa.Super. 471, 364 A.2d 368 (1976). This evidence was also sufficient to sustain the jury’s finding that appellant had been in possession of stolen property with knowledge that such property was stolen. Commonwealth v. Williams, supra; Commonwealth v. Stasiak, supra; Commonwealth v. Bellachio, 296 Pa.Super. 468, 442 A.2d 1147 (1982); Commonwealth v. Worrell, 211 Pa.Super. 386, 419 A.2d 1199 (1980); Commonwealth v. Lovette, supra; Commonwealth v. Fox, 259 Pa.Super. 565, 393 A.2d 970 (1978); Commonwealth v. Franks, supra. Not only did appellant have the stolen goods in his possession but tags attached to the goods identified the true owner.

For purposes of sentencing, however, the crime of theft by receiving stolen property merged into the crime of theft by unlawful taking. Commonwealth v. Yancey, 301 Pa.Super. 427, 431, 447 A.2d 1041, 1043 (1982); Commonwealth v. Simmons, supra 233 Pa.Super. at 560-561, 336 A.2d at 631. See also: 18 Pa.C.S. § 3902. The imposition of separate sentences, therefore, was improper. See: Commonwealth v. Haines, 296 Pa.Super. 257, 442 A.2d 757 (1982); Commonwealth v. Yancey, supra; Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981); Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980); Commonwealth v. Simmons, supra. The legality of the sentences imposed, even though not raised by petition to modify sentence, is not waived and may be raised for the first time on appeal. Commonwealth v. Walker, 468 Pa. 323, 330 n. 3, 362 A.2d 227, 230 n. 3 (1976); Common wealth v. Moore, 300 Pa.Super. 488, 493, 446 A.2d 960, 963 (1982).

We need not remand for resentencing. By imposing concurrent sentences the trial court indicated that it considered the sentence to be for one and the same criminal act. Thus, we are able to conclude that the sentence for theft by unlawful taking was not influenced by the sentence for theft by receiving stolen property. Consequently, we will vacate the sentence for receiving stolen property and affirm the judgment of sentence for theft by unlawful taking.

The judgment of sentence for theft by receiving stolen property is vacated. The judgment of sentence for theft by unlawful taking is affirmed.

      . 18 Pa.C.S. § 3921.

      . 18 Pa.C.S. § 3925.


author: JOHNSON, Judge:

text:
    458 A.2d 246
    Felice SILVESTRI and Concettina Silvestri, Appellants, v. STRESCON INDUSTRIES, INC.
    Superior Court of Pennsylvania.
    Argued June 3, 1982.
    Filed March 31, 1983.

      Michael F. Eichert, Philadelphia, for appellants.
    John Patrick Kelley, Philadelphia, for appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant Felice Silvestri was injured when, while working on a building under construction, he fell through a hole in a concrete floor manufactured by Appellee Strescon. Appellant was employed by Strescon as a carpenter at the time of the accident.

Appellants sued Strescon for damages arising from the accident, alleging Strescon’s negligence in failing to, inter alia, warn Appellant Felice Silvestri of the abnormally dangerous condition of the opening in the floor and in negligently directing and supervising the design, fabrication, manufacture and installation of the concrete floor.

Appellee Strescon moved for summary judgment, alleging that the Pennsylvania Workmen’s Compensation Act (the Act) was Appellant’s sole and exclusive remedy.

Appellants on appeal allege that an action for personal injuries, by an employee against his employer, should not be barred where the injuries resulted from an accident at the employer’s work place and where the claim is based on the employer’s defective design or manufacture of a product sold to the public at large and in use by the employee at the time of the accident.

This theory of liability is generally known as the “dual capacity doctrine” which states that an employer, normally shielded from tort liability by the exclusive remedy principle of workmen’s compensation, may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as an employer. 2A A. Larson, The Law of Workmen’s Compensation § 72.80 at 14-112 (1976). See also Budzichowski v. Bell Tel. Co., 299 Pa.Super. 392, 445 A.2d 811 (1982).

The Pennsylvania supreme court has held that a hospital employee, who becomes ill while on the job, and who is directed by her supervisor to go to the emergency room to seek medical attention, is not barred by the exclusivity provision of the Act from pursuing an action for injuries received in the emergency room due to defective equipment employed therein. Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982). A plurality of the court, through the concurring opinion of now CHIEF JUSTICE ROBERTS held that the only relevant fact was that the employee was injured in the course of receiving treatment in the hospital’s emergency room which was a facility serving the general public. Since the hospital’s emergency room owed a duty of care to all its patients, the issue could be decided without regard to the Act.

In the instant case, Appellant was injured while working with Strescon’s “product”, the concrete floor. The “dual capacity” alleged by Appellants would be Strescon’s status as producer and vendor of a consumer product, namely structural concrete products, such as the concrete floor.

However, Appellant Felice Silvestri was not involved in an activity related to Strescon’s “dual capacity” in the instant case. The concrete floor had been manufactured by Strescon to be installed by Strescon directly and not to be sold to the general public. There is no relationship, on the instant facts, between Strescon’s activities in the manufacture and sale of its goods to the general public and Appellant’s injuries received while installing Strescon’s product directly, as an employee of Strescon. Therefore, the exclusivity provisions of the Act apply to the instant case.

The order of October 28, 1981 is affirmed.

      . We note that part of Appellant’s duties involved preparation of wooden covers for the various openings in the concrete floor.

      . Act of June 2, 1915, P.L. 736, art. 1, § 101 et seq., as amended. 77 P.S. § 1 et seq.

      . 77 P.S. § 481.


author: HOFFMAN, Judge:

text:
    458 A.2d 248
    COMMONWEALTH of Pennsylvania v. C. Paul DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 15, 1982.
    Filed March 31, 1983.

      Joseph Ronald Kushner, Oil City, for appellant.
    William G. Martin, Assistant District Attorney, Franklin, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the evidence is insufficient to sustain his conviction for conspiracy to commit theft by deception. Because the evidence fails to establish appellant’s knowledge of any criminal purpose, we reverse the judgment of sentence and order appellant discharged.

In reviewing the sufficiency of the evidence, we must determine, upon viewing the evidence in the light most favorable to the Commonwealth as verdict winner, whether a factfinder could reasonably have found all elements of a crime beyond a reasonable doubt. Commonwealth v. Dolfi, 483 Pa. 266, 396 A.2d 635 (1979). So viewed the facts are as follows:

On July 30, 1979, appellant agreed to accompany Steve Eakin to Pittsburgh to pick up inspection stickers. Appellant phoned Nelson Cunningham, a mechanic at Weithrup Erection Co., and he and Eakin stopped there around noon. Cunningham was working under the hood of a 1974 Cadillac, and asked appellant and Eakin if they knew anyone interested in buying it. Cunningham had previously agreed with the car’s owner to dispose of it as if it were stolen so that the owner could file a false insurance claim and Cunningham could get spare parts. Eakin and appellant then left for Pittsburgh. That night, appellant phoned Cunningham and talked for four minutes.

The following morning, July 31, Eakin asked appellant to help him drive the Cadillac to a potential buyer. Around noon, at Weithrup, Cunningham gave Eakin the keys to the Cadillac, and Eakin drove it away while appellant followed in Eakin’s car. Several employees saw them arrive soon after at Heller’s auto-body shop in Seneca. Eakin and Heller, soon joined by appellant, stood behind the Cadillac. Eakin delivered the book of inspection stickers to Heller. Eakin told Heller that he could make a deal on the Cadillac but that Heller would have to dismantle it and make sure it was not put back on the road. Eakin also requested fifteen of the inspection stickers in payment. The three arranged to meet later that afternoon at Heller’s garage in Rockland. At two p.m., when only Heller was present at the Rockland garage, Eakin drove up in the Cadillac with appellant following in Eakin’s car. While Eakin, Heller, and appellant talked outside for a few minutes’ appellant said that if the Cadillac were dismantled he could find a buyer for the tires and wheels. Eakin then drove the Cadillac into the garage. Appellant told Heller that, as part payment for the car, he wanted a trailer axle from a pile that was lying nearby. Eakin, as he got out of the car, wiped off the steering wheel, door handle, and keys. Appellant soon left alone. Eakin and Heller returned to Heller’s Seneca shop, and Eakin said he wanted $300 and fifteen inspection stickers as the price for the Cadillac. Heller said he could not pay until after Friday, August 4. After Heller had gone, appellant returned in Eakin’s car to pick up Eakin from the Seneca shop.

Over the next few days, appellant accompanied Eakin and Eakin’s father on an unrelated trip. Cunningham, on August 4, told the car’s owner, that the Cadillac was “long gone.” On Saturday, August 5, the day after their trip, appellant phoned Eakin to suggest they follow up on the Cadillac. Appellant and Eakin went to Heller’s Rockland garage, where they had left the car, but saw neither Heller nor the Cadillac. Appellant tried unsuccessfully to reach Cunningham by phone that night. On Monday, Eakin and appellant visited Heller, and Eakin asked payment for the Cadillac. Eakin refused Heller’s $100 offer. That night appellant phoned Cunningham’s home, but spoke only to Mrs. Cunningham. Appellant took no further actions concerning the Cadillac after Eakin told him the deal with Heller had been completed. However, Eakin did again demand that Heller pay, and on August 16, the Cadillac’s owner filed a report with the police that the car was missing and probably stolen. At trial, appellant, Heller, and Eakin testified. The jury found appellant guilty of conspiracy to commit theft by deception. The lower court sentenced appellant to six-to-twelve months imprisonment with work release. This appeal followed.

Criminal conspiracy requires that the defendant with “intent” to promote or facilitate a crime “agrees” to aid another in the planning, attempt, or commission of the crime. 18 Pa.C.S.A. § 903; Commonwealth v. Carter, 272 Pa.Superior Ct. 411, 416 A.2d 523 (1979). Although the defendant need not be aware of all criminal purposes of the conspiracy, he must be aware of, and agree to aid, at least some purpose. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1967). Because direct evidence of intent and agreement is often unattainable, conspiracy may be proven entirely from the “overt acts,” “relationship, conduct, or circumstances” of the parties. Commonwealth v. Yobbagy, 410 Pa. 172, 177, 188 A.2d 750, 752 (1963). The facts and circumstances must be considered together with all reasonable inferences arising from them. Commonwealth v. Carter, supra; Commonwealth v. Anderson, 265 Pa.Superior Ct. 494, 402 A.2d 546 (1979). However, “[wjhen two equally reasonable and mutually inconsistent inferences can be drawn from the same set of circumstances, the jury may not be permitted to guess which inference it will adopt.” Commonwealth v. Hubbard, 472 Pa. 259, 270, 372 A.2d 687, 692 (1977). See Commonwealth v. Woong Knee New, 354 Pa. 188, 47 A.2d 450 (1946). “When a party on whom the burden of proof rests in either a criminal or a civil case, offers evidence consistent with two opposing propositions, he proves neither.” Commonwealth v. Anderson, supra 265 Pa.Super. at 500, 402 A.2d at 548. See Commonwealth v. Donald, 192 Pa.Superior Ct. 276, 161 A.2d 915 (1960). Thus, a defendant’s standing near a car outside a house while a murder was taking place inside did not support a conspiracy conviction, for, even though the facts fit the prosecution’s theory that he was a lookout and a getaway driver, no evidence showed the defendant knew of the planned crimes. Commonwealth v. Finley, 477 Pa. 382, 383 A.2d 1259 (1978). Similarly, standing with others facing a recently jimmied door then fleeing from an approaching police officer was insufficient to prove conspiracy for burglary and trespass. Commonwealth v. Beauford, 286 Pa.Superior Ct. 297, 428 A.2d 1000 (1981). See Commonwealth v. Johnson, 272 Pa.Superior Ct. 375, 415 A.2d 1246 (1979). Concerted action over several days is not necessarily inconsistent with innocence. Where a defendant met with convicted co-conspirators at the same time every day in a parking lot, and was once seen passing white slips of paper and at another time passed a child whose overalls were later found to contain numbers paraphernalia, the evidence was insufficient to prove his participation in a numbers conspiracy beyond a reasonable doubt. Commonwealth v. Dolfi, supra. Upon reviewing this record, we find the evidence and reasonable inferences are equally consistent with innocence. Although the facts fit the Commonwealth’s theory, nothing shows appellant knew of the planned crime or any crime, and thus the evidence is insufficient to sustain the conviction.

The circumstances show that Cunningham considered appellant’s and Eakin’s transferring of the Cadillac from Weithrup’s to Heller’s to be the first step in the planned disposing of the car as if stolen. However, little effort was made to conceal this midday transfer, made in view of employees of both Weithrup’s and Heller’s. The circumstances indicate that the planned disappearance was to occur from Heller’s. That Eakin mentioned within appellant’s hearing his request for inspection stickers and that the car be dismantled and taken off the road might raise an inference that either Eakin or Cunningham had confided the crime to appellant. However, because the car was working poorly, it is equally plausible that Eakin saw no harm in making the request in front of appellant and that appellant would find nothing untoward in it. Similarly, appellant’s telling Heller at the second meeting that if the car were dismantled he had a buyer for the tires and wheels is consistent with an innocent attempt to help and reveals only mundane knowledge of where to sell the most marketable spare parts. Appellant’s subsequently requesting trailer axles, while incriminating if interpreted as a demand for a share of ill-gotten profits or as seeking payment for silence, may just as well have been a request to arrange some bartered compensation for helping carry out a legitimate sale. Nothing indicates that the axles, which were lying near where appellant and Heller were standing, were disproportionately valuable. Finally, appellant’s activities in following-up the transfer by visiting the garage on Saturday and accompanying Eakin on the brief visit to collect payment on Monday, do not demonstrate appellant was informed of the criminal purpose or had reason to know of it. Viewing the record as a whole, no evidence dispels the conclusion that appellant was simply asked along for the ride to lend an appearance of legitimacy to what the conspirators knew was a corrupt transaction. A criminal conviction may not rest upon mere conjecture about what persons said to each other, but only upon evidence sufficient to overcome the presumption of innocence and to prove guilt beyond a reasonable doubt. Accordingly, we reverse the judgment of sentence and order appellant discharged.

Reversed and appellant discharged.

JOHNSON, J., dissents.

      . Eakin’s conviction was upheld by this court in Commonwealth v. Eakin, 306 Pa.Superior Ct. 609, 452 A.2d 55 (1982). The record shows that Eakin took a more active role and conducted additional negotiations with Heller outside of appellant’s presence.

      . Despite the Commonwealth’s alternative contention that appellant might have believed the Cadillac to be stolen, the record reveals that the car was sitting in plain view of employees at Weithrup’s, and was well known to belong to the company’s president’s son-in-law, and that appellant was apprised of these facts.

      . Because of our disposition of this case we need not address appellant’s remaining contentions.


text:
    458 A.2d 251
    Richard JUNOD, Appellant, v. Carl BADER.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1983.
    Filed March 31, 1983.

      Thomas Coval, Willow Grove, for appellant.
    Lawrence R. Scheetz, Richboro, for appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in holding that his successful completion of an accelerated rehabilitative disposition (ARD) program was not a sufficiently favorable termination of the criminal proceedings to support this malicious prosecution action. Because we agree with the lower court that the ARD program, as a court-supervised compromise, is not a sufficiently favorable termination of criminal proceedings to support a subsequent malicious prosecution action, we affirm.

On June 5, 1980, appellee filed a private criminal complaint charging appellant with harrassment and terroristic threats. On January 28, 1981, appellant, after a colloquy, accepted accelerated rehabilitative disposition (ARD) of the charges, see Pa.R.Crim.P. 175-185, and was placed on 90 days nonreporting probation with a condition that he avoid appellee. Upon appellant’s successfully completing the program, the charges were dropped. On May 27, 1981, appellant filed a complaint in trespass alleging that appellee had maliciously prosecuted the criminal action. On November 5, 1981, the lower court granted appellee a summary judgment dismissing the action on grounds that ARD is not a sufficiently favorable termination of criminal proceedings to support a subsequent action for malicious prosecution. This appeal followed.

Appellant contends that termination of a criminal prosecution by ARD is sufficiently favorable to an accused to support an action for malicious prosecution. We disagree. A person wrongly accused may recover for malicious prosecution by proving three basic elements: (1) that the underlying proceedings terminated favorably to the accused; (2) that the defendant caused those proceedings to be instituted without probable cause; and (3) malice. Dietrich Industries, Inc. v. Abrams, 309 Pa. Superior Ct. 202, 455 A.2d 119 (1982); DeSalle v. Penn Central Transportation Co., 263 Pa. Superior Ct. 485, 398 A.2d 680 (1979); Restatement (Second) of Torts, § 653. Of these elements, favorable prior termination is a threshold issue. A resolution of the first trial clearly favorable to the accused and consistent with innocence, such as acquittal or reversal of conviction, requires inquiry into the remaining elements. Anolik v. Marcovsky, 122 Pa. Superior Ct. 133, 186 A. 418 (1936). A resolution clearly adverse to the accused, on the other hand, such as a conviction or guilty plea, denies his status of being wrongly accused and so diminishes the likelihood of his proving lack of probable cause or malice that our courts will promptly dismiss the malicious prosecution action. See DeSalle v. Penn Central Transportation Co., supra. Indecisive terminations of the underlying action are more troublesome. If the court or prosecutor nolle prosses, dismisses or drops charges the record may not clearly reflect whether the termination was consistent with the innocence of the accused or a reflection of some policy or decision unrelated to the accused’s commission of the particular crime. See Williams v. Page, 160 N.J.Super. 354, 389 A.2d 1012 (1978). For instance, if the charges are dropped as a result of a compromise, our courts conclude that the accused placed a higher value on peace than on establishing his innocence, and thus will not allow him to burden the courts or another party with a second action in which the accused, no longer himself at risk, asserts the same claim of innocence that he earlier abandoned. Alianell v. Hoffman, 317 Pa. 148, 176 A. 207 (1936); Restatement (Second) of Torts, § 660(a), Comment c. Such a rule regarding compromises serves to prevent the harrassment of honest litigants who have taken their accusations to proper authorities. Even though the rule may also protect the truly malicious litigant, who might reasonably expect that his falsely accused victim will seek to settle the criminal trial rather than face the uncertainty and prohibitive cost of defending against the false criminal charge, it is a necessary accomodation consistent with the purposes of the malicious prosecution action. A victim of the truly malicious litigant may often, though not always, be compensated under the alternative tort of abuse of process, which, while not requiring a favorable termination of the underlying action, does require proof of “[sjome definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of process.” DiSante v. Russ Financial Co., 251 Pa. Superior Ct. 184, 189, 380 A.2d 439, 441 (1977). Additionally, as to the end of avoiding groundless proceedings that needlessly burden courts and litigants, the compromise itself cuts short the criminal proceedings and spares the accused many of the direct, if not the collateral, consequences of that proceeding. Finally, the interests of judicial economy preclude the court in a malicious prosecution action from re-examining the decisions of the district attorney who compromised rather than dropped the charges; of the ARD court, who after hearing the accusations, Pa.R.Crim.P. 179, recommended conditions rather than dismissal; or of the accused, now plaintiff, who accepted the compromise. Accordingly, even though successful completion of an ARD program terminates the prosecution, Pa.R.Crim.P. 184, 185; Commonwealth v. Briley, 278 Pa. Superior Ct. 363, 420 A. 2d 582 (1980), that termination is a court-supervised compromise, Commonwealth v. Kindness, 247 Pa. Superior Ct. 99, 371 A.2d 1346 (1977), and therefore, as a matter of law, is not sufficiently favorable to the accused to entitle him to subsequently bring a malicious prosecution action against his accuser. See Davis v. Chubb/Pacific Indemnity Group, 493 F.Supp. 89 (E.D.Pa.1980); Restatement (Second) of Torts, § 660(a).

Appellant contends that, because the lower court did not inform him during the ARD colloquy that accepting ARD would bar a subsequent malicious prosecution action, his acceptance of the program was not knowing and willing for purposes of this action. As relief he requests we treat the ARD disposition as he subjectively viewed it—as an outcome favorable to his innocence. Despite appellant’s alleged misunderstanding, the court’s colloquy established that he accepted ARD with sufficient understanding to satisfy the purposes of the criminal law. See Pa.R.Crim.P. 178, 179. His accepting the compromise under those circumstances is sufficient to waive his civil action for malicious prosecution, regardless of whether he was subjectively aware of that consequence. See Davis v. Chubb/Pacific Indemnity Group, supra.

Appellant contends finally that refusing to permit a malicious prosecution suit to proceed based on an ARD disposition is unconstitutional because it denies appellant’s right to a continued presumption of innocence. Because malicious prosecution is a civil action, the presumption of innocence constitutionally required in criminal actions is replaced by . the law allocating burdens of proof. Thus, appellant’s last contention is meritless. Accordingly, we affirm the order dismissing appellant’s action for malicious prosecution.

Affirmed.

      . This question is a one of first impression before Pennsylvania’s appellate courts. See Davis v. Chubb/Pacific Indemnity Group, 493 F.Supp. 89 (E.D.Pa.1980).

      . Our legislature has abrogated the so-called "English Rule” requirement that a malicious prosecution plaintiff also prove some special damages beyond those generally attendant to similar litigation. 42 Pa.C.S.A. § 8351; Detrich Industries, Inc. v. Abrams, supra.

      . The defendant in a malicious prosecution action is entitled to attempt to prove that the accused was in fact guilty of the offense charged. This defense does not depend on the outcome of the criminal case or upon what the malicious prosecution defendant knew when he filed charges. Rather, it is closely related to the defense of truth in a defamation action and is supported by a similar public policy favoring exposure of the guilty. See W. Prosser, Law of Torts, § 119 at 840-41 (4th ed. 1971).

      . See Note, Groundless Litigation and the Malicious Prosecution Debate: A Historical Analysis, 80 Yale LJ. .1218 (1979).


author: PER CURIAM:

text:
    458 A.2d 254
    Cecelia AUMAN, Appellant, v. Edward JUCHNIEWITZ.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1981.
    Filed March 31, 1983.

      Avram G. Adler, Philadelphia, for appellant.
    Edward Juchniewitz, appellee, in pro. per.
    Before SPAETH, BECK and LIPEZ, JJ.
   PER CURIAM:

The skimpy record before us in this appeal shows the following. On December 29, 1976 appellant filed a complaint in equity, which was served on defendant by registered letter to the Secretary of the Commonwealth and to defendant’s last known address. Defendant never entered an appearance. The complaint requested that the decree divorcing appellant from defendant in 1969 be reformed into a decree of annulment. The next thing which appears in the record is the lower court’s order, which states:

AND NOW, to wit, this 5th day of October, 1979, upon consideration of the Petition for reformation of Decree in Divorce to Decree of Annulment, it is hereby ORDERED that the said Petition is denied. The Court finds that Plaintiff has not shown any fatal defect apparent on the face of the record, that the Petition had not been presented within a reasonable time after Petitioner had learned grounds of the alleged defect and that this Court had earlier adjudicated the existence of a valid marriage which was concurred to by Petitioner. The Opinion of the Superior Court in WISECUP v. WISECUP, Pa. Super. 384 (1959) [sic] requires that the Decree not be reformed.

The remainder of the record consists of the notice of appeal from this order, and a copy of the docket entries indicating the filing of the foregoing documents.

Although the petition which the lower court’s order denied is not part of the record, a copy has been included in the reproduced record, along with a confusing compendium of copies of correspondence and other documents from the period 1975 through 1981. This material is not part of the record on appeal as defined in Rule of Appellate Procedure 1921, and it should not have been included in the reproduced record. General Accident Fire & Life Assurance, Ltd. v. Flamini, 299 Pa.Super.Ct 312, 317 n. 3, 445 A.2d 770, 773 n. 3 (1982); see Pa.R.A.P. 2152(a).

Appellant’s brief argues that the case cited in the lower court’s order, Wisecup v. Wisecup, 190 Pa.Super.Ct. 384, 154 A.2d 332 (1959), is distinguishable, and is inapplicable to the circumstances of this case. The argument, however, is based on a combination of factual allegations in the brief and the material in the reproduced record which is not in the original record, none of which we may consider. Commonwealth v. Rini, 285 Pa.Super.Ct. 475, 483, 427 A.2d 1385, 1389-90 (1981). It does not appear from the record that appellant had any opportunity to place her evidence on record and argue the legal consequences before the lower court filed its order. Therefore we shall vacate the order, and remand so that appellant may have an opportunity to develop a record, on which disposition may properly be based.

Order vacated, and case remanded with instructions. Jurisdiction is not retained.

      . We note that while the sheriff used an address for defendant of "162 S.E. Croop Lane, Port Charlotte, N.C.” in serving the complaint, the proof of service of the notice of appeal, Pa.R.A.P. 122, indicates that the notice was mailed to an address which is identical except that the state of Florida has been substituted for North Carolina. On remand, appellant’s counsel should resolve this discrepancy before serving any other papers. Counsel should also note that all documents must then be filed in the proper office as determined by the Judicial Code, in order to make them part of the record. See 42 Pa.C.S. §§ 2702, 2736, 2756, 2776; Linde v. Philadelphia Newspapers, Inc., -Pa.Super.Ct. —, — & n. 1, — A.2d-, -& n. 1 (1983) (filed March 18).

      . See Pa.R.C.P. 211. We intimate no view as to what combination of facts, if any, would entitle appellant to relief, because it would be premature to do so with the record in its current state.