author: POPOVICH, Judge:

text:
    573 A.2d 1101
    COMMONWEALTH of Pennsylvania, Appellee, v. Willie Lee DAVIS, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 5, 1990.
    Filed April 19, 1990.

      Francis M. Socha, Harrisburg, for appellant.
    Richard A. Lewis, Dist. Atty., Harrisburg, for Com., appellee.
    Before KELLY, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

This case involves an appeal from the denial of the Post Conviction Relief Act (PCRA) petition of the appellant, Willie Lee Davis, Sr. We affirm.

The facts of record indicate that on July 12, 1987, the appellant, Bobbie Jones and Ronald Moore resided on the second floor of a boarding house located at 1217 North Cameron Street, Harrisburg, Pennsylvania.

At approximately 11:00 a.m. on the date stated, the appellant and Mr. Jones became embroiled in an argument over the appellant’s failure to leave the bathroom door open so that other tenants could tell whether the facilities were being used. This exchange of words prompted Jones to walk the length of the hallway and telephone the police. The appellant fired a .25 caliber handgun at Jones. A bullet entered one side of Jones’ neck and exited the other side. This shooting was witnessed by Mr. Moore as he stood in the entrance way to his apartment located across from the telephone.

To evade the appellant, the victim ran to the third floor and locked himself in one of the apartments only to have the appellant pound on the apartment door demanding that the victim come out. Fearful for his life, the victim took the only available exit, i.e., the window, and fell three stories to the concrete below. Despite incurring fractures of the knee, foot, hip, wrist, elbow and temple, the victim managed to secure a ride to the Hershey Medical Center. He remained there for over a month and was treated for a bullet wound to his neck and the injuries sustained by the fall.

Within minutes after the incident, the police arrived on the scene and were informed by Mr. Moore that the appellant had committed the shooting and threatened his life if he told the police. The appellant was arrested and a search of his person produced a .25 caliber handpistol containing five live rounds. An examination of the second floor hallway produced a spent shell casing from a .25 caliber automatic revolver.

Following a preliminary hearing, the appellant was arraigned before a Judge Morrison on October 1, 1987. At that time, the assistant district attorney requested that a colloquy be conducted as to the appellant’s continuing desire to proceed without counsel given that the appellant had appeared at the preliminary hearing and waived his right to counsel.

The assistant district attorney began the colloquy by reading the charges from the informations. He then informed the appellant of his right to an attorney and to free counsel if he could not afford one. When asked his intentions, the appellant answered: “I still feel I am going to represent myself.” Thereafter, the assistant district attorney told the appellant the potential punishment associated with each charge and still the appellant stated that with regard to attorneys: “I don’t trust them.” Lastly, the assistant district attorney advised the appellant that in representing himself at trial he would be requested to adhere to the same rules of court that a lawyer would have to follow. The appellant acknowledged comprehending what had been stated to him — he had represented himself in three (3) prior trials.

Despite the appellant’s refusal to take counsel, the arraignment court designated the public defender’s office to be his attorney and aid him in his efforts to prepare for trial and be standby counsel because of the seriousness of the charges. To this the appellant remarked:

I am making it quite clear that now I am 47 years old. I got to the point I know I am faced with, you know. I feel I am just another Jew in a war camp dated back as far as 1940, it is like I am being persecuted, so whatever punishment I receive from the court, I am a man and I am going to take it. If it is life imprisonment, I am willing to undergo that____

Next, we find that at the December 17,-1987, pre-trial hearing to rule on the appellant’s pro se motions for discovery and dismissal of the charges, the appellant stated at the outset: “I don’t need- no counsel, I am representing myself____”

Nonetheless, standby counsel (a Ms. Konow) wanted it placed on the record that she was “concerned” about the appellant’s “competency to stand trial”. In other words, albeit the public defender’s office was not representing the accused, she was raising the question of competency, i.e., whether the appellant was in a position to make the decision to represent himself.

In an effort to resolve this question, the court asked whether the appellant had been in a hospital for mental illness. The appellant responded that he had been transferred from Western Penitentiary in Pittsburgh, Pennsylvania to Farview in 1970 for eleven (11) months. Since then, the appellant remarked that he had received no mental treatment. Upon further inquiry, the appellant testified that he was convicted of federal charges in 1982, and he was sent to a federal hospital in Springfield, Missouri. He received tests (physical and mental) by a Doctor Conroy, a psychologist. The purpose, as stated by the appellant, was:

They checked me out mentally to see whether or not they had reason for them to commit me. She found no reason. What ensued was the following discourse:

THE COURT: All right. That is good enough for me. * * * When you talk to me you sound to me to be a man of intelligence and your answers are logical and coherent and I think you are competent.
THE DEFENDANT: I am not as smart as you. I have an eighth grade education but I am not crazy.
THE COURT: I agree with you. I think you are competent.

Again, the court advised the appellant of his right to counsel and that he would be better off with representation because he did hot know the procedures to be followed at trial. The appellant rebuffed the offer and said: “... if I show competency now hopefully later they don’t come up trying to say well he’s crazy.” With the preceding remarks in mind, the court stated: “I am satisfied that you know what you are doing. You may be unwise but you are competent.”

At the commencement of the January 4-5, 1988, jury trial, the court once again asked whether the appellant desired to proceed pro se. The appellant answered:

... I’m willing to go ahead and be tried. But I don’t think an attorney would have an effective chance of presenting my case. So like I said, I would rather go ahead....

The trial court then informed the jury that the appellant was having Attorney Konow sit with him so he could consult with her on anything “and she might advise him purely procedurally.”

At the trial, the appellant participated in the selection of the jury, requested of the trial court whether he could “waive the alternate challenge”, and made an opening statement. Also, the appellant cross-examined the victim (see N.T. 1/4-5/88 at 28-41), the doctor who treated the victim and the witness to the shooting, the last two of whom did not waver in their identification of the appellant as the person who did the shooting. Further, during his cross-examination of the witness-Moore, the appellant conferred with his standby counsel on two (2) occasions, and he lodged an objection to a question asked by the assistant district attorney. Additionally, the appellant cross-examined the arresting officer, and, at the completion of the direct-examination of the officer who processed him at the police station, standby counsel interjected a question of the assistant district attorney to clarify the exhibit number of a vial (which contained bullets) retrieved from the appellant’s person. Lastly, the weapon’s expert was cross-examined with regard to the testing conducted which concluded that the empty shell casing was fired from the weapon found on the appellant. With this, the Commonwealth rested its case, and the appellant did not take the stand.

In the court’s charge to the jury, it made reference to a “concern about the defendant’s mental state.” The court advised the jurors that they should not be preoccupied with this because no evidence had been presented on this subject. Thus, the jury did not have before it the question of finding the appellant “guilty by reason of insanity” or “guilty but mentally ill.”

The court pointed out that from the appellant’s questioning of the witnesses and closing argument, his position was that the Commonwealth did not prove its case of the victim being shot by the appellant.

During the course of deliberations, the court was informed that a juror had told his tipstaff that another juror had overheard Mr. Moore (a Commonwealth witness) say something at a bus stop. As a result, the court questioned the particular juror in the presence of the assistant district attorney and Attorney Konow (appellant’s standby counsel), and the court was satisfied there was no reason to declare a mistrial on this matter.

Thereafter, the trial court questioned the jury as to what two (2) charges of the three (3) brought against the appellant it had agreed upon, and the court was told aggravated assault and terroristic threats but not attempted murder. To this, standby counsel stated she had no objection to the court declaring a mistrial with respect to the attempted murder charge.

Once the verdicts of guilty for aggravated assault and terroristic threats were read, standby counsel stated the appellant wanted to have the jury polled. This took place. Next, the appellant was advised of his post-trial rights and his right to free counsel to aid him. “And for the last time”, the court stated, “have the lawyer help you.” With this, standby counsel inquired whether the assistant district attorney would nolle pros the firearm charge. She was told this would take place at sentencing. However, at sentencing, wherein standby counsel appeared with the appellant and asked to have the firearm charge dismissed, the assistant district attorney mentioned that a petition to that effect would be submitted to the court.

Neither post-trial motions nor a direct appeal from the judgment of sentence for aggravated assault and terroristic threats was filed despite the post-trial and sentencing court’s informing the appellant of his Pa.R.Crim.P. 1123(c) & 1405(c) rights. Rather, the appellant submitted a PCRA petition on April 25, 1988, alleging, inter alia, that (1) incriminating statements were elicited from him at the preliminary hearing in the absence of counsel; (2) “trial counsel was incompetent ... by not having the ability to represent [him] in the best of his [sic] interests ... ”; and (3) consolidating the charges at one trial was impermissible.

The appellant, at his request, was assigned counsel to represent him. Thus, when the appellant filed a hand-written “ ‘Motion For Withdrawal’ of Court Appointed Attorney” and a petition to “Proceed in ‘Forma Pauperis’ ”, they were denied. A supplemental petition under the PCRA was filed by court-appointed counsel. He averred in relevant part that:

(7) Petitioner's] ... conviction resulted from the denial of the Petitioner’s constitutional right to counsel which, in the circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilty or innocence could have taken place and in support thereof avers the following:
A. Petitioner contends that the trial court erred in permitting the Petitioner to represent himself without counsel in the instant proceedings ... [H]e did not affirmatively, knowingly, voluntarily or intelligently waive his right to counsel in the instant proceedings and the trial court erred in permitting the Petitioner to represent himself pro se in the instant proceedings____
B. Petitioner contends that he was prejudiced by the trial court’s unsolicited comments made during the court’s charge to the jury pertaining to [his] mental health ... because the trial court had injected into the proceedings a consideration pertaining to the mental health of the Petitioner which was inappropriate to the jury’s determination of guilt or innocence____
C. The trial court erred in failing to appoint counsel for the Petitioner [to] represent him in post-trial proceedings, and on appeal of the present sentence. Petitioner contends that he did not knowingly, intelligently, or voluntarily waive his right to representation of counsel in any future proceedings after the entry of his guilty plea [sic].

The Commonwealth filed an answer to the supplemental PCRA petition. By opinion and order dated October 26, 1989, the PCRA court denied the appellant the relief requested by holding that his claim that the court erred in permitting self-representation at trial and post-trial proceedings was “vacuous” and not supported by the record. As for the prejudicial effect of informing the jury that it could not find the appellant not guilty by reason of insanity or guilty but mentally ill, the PCRA court wrote:

... We note initially that this issue has been waived since there was no timely objection to the Court’s charge to the jury pursuant to Rule 1119(a), Pa.R.Crim.P. Furthermore, it is obvious from the trial transcript that the Court was merely clarifying the issues for the jury. As our appellate courts have noted, the primary duty of a trial judge in charging a jury is to clarify the issues so that the jury may understand the questions to be resolved. [Citations omitted].

This timely appeal followed and raises the issues pertaining to the appellant’s waiver of counsel and the trial court’s remarks during its charge to the jury relating to the appellant’s state of mind.

Before reaching the merits of the appellant’s allegations, we must ascertain whether the issues proffered have been waived. See Commonwealth v. Jones, 477 Pa. 266, 267, 383 A.2d 926, 938 (1978); Commonwealth v. Porta, 297 Pa.Super. 298, 302, 443 A.2d 845, 847 (1982). The fact that the question of waiver has not been raised by the Commonwealth or the PCRA court does not foreclose this Court from doing so sua sponte. See Commonwealth v. Flynn, 295 Pa.Super. 513, 518-21, 442 A.2d 256, 259-60 (1982).

As observed by this Court in discussing the Post-Conviction Hearing Act, the predecessor to the present PCRA, we clarified the area of waiver as it related to one’s right to appeal and counsel; to-wit:

It is axiomatic that in our scheme of justice an accused has the right to appeal his sentence and to the assistance of appointed counsel, if indigent, in doing so. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Concomitantly, the accused has the ability to “waive” his right to counsel and to an appeal. As our Supreme Court capsulized in Commonwealth v. Norman, 447 Pa. 217, 285 A.2d 523 (1971):
In determining whether a defendant has waived a constitutional right it is well settled that the federal standards of waiver first enunciated in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) apply. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). The waiver of a constitutional right must be “an intentional relinquishment or abandonment of a known right or privilege.” 304 U.S. at 464, 58 S.Ct. at 1023. The presumption must always be against the waiver of a constitutional right. Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 463-465, 86 L.Ed. 680 (1942). Nor can waiver be presumed in a silent record case. The United States Supreme Court explicitly ruled in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962):
“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” (Emphasis added).
Id. at 516, 82 S.Ct. at 890. Thus, this Court is constitutionally bound to place the burden of proving waiver on the Commonwealth. Whether defendant was represented by private or court-appointed counsel, or whether his trial took place before or after the Douglas decision, are distinctions with no legal significance. Commonwealth v. Ezell, [431 Pa. 101, 244 A.2d 646 (1968)]; Commonwealth ex rel. Stevens v. Myers, [419 Pa. 1, 213 A.2d 613 (1965) ].
477 Pa. at 221-222, 285 A.2d at 526. * * * Furthermore, the Commonwealth's burden of proving waiver of one’s appellate rights by a preponderance of the evidence, in silent record cases, has been settled law in this jurisdiction since 1968. Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968).
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With the preceding precepts in mind, we now turn to the record and find a total absence of any mention of the appellant’s Douglas rights. Not only does a Douglas denial preclude a finding of waiver under Section 4 of the PCHA, Commonwealth v. Holmes, 468 Pa. 409, 417 n. 7, 364 A.2d 259, 263 n. 7 (1976), but this requirement cannot be inferred from the appellant’s possession of a prior
criminal record. Commonwealth ex rel. Mullins v. Maroney, 428 Pa. 195, 200-201, 236 A.2d 781, 785 (1968); Commonwealth ex rel. Gordon v. Myers, 424 Pa. 352, 354, 227 A.2d 640, 642 (1967).
S-S S-! * J¡í
Instantly, the 1967 guilty plea colloquy makes no mention of the rights referred to in Douglas, nor was the appellant tentative ... in his reaffirmation of the denial of his right to appeal ... during his testimony at the 1983 PCHA hearing. Therefore, we fail to detect what facts of record are supportive of the PCHA ruling [finding of waiver.]

Commonwealth v. Berthesi, 350 Pa.Super. 383, 386-391 & n. 2, 504 A.2d 891, 893-895 & n. 2 (1986), allocatur denied 10/7/86.

Moreover, as stated by the Supreme Court of Pennsylvania on the subject at hand,

... the trial court, the Commonwealth or trial counsel should place on record, perhaps immediately after sentence is imposed, a full examination of the accused sufficient to demonstrate that he is aware of his right of appeal and his right to counsel for that purpose, and that he understands the full import of these rights as well as the consequences which may flow from their exercise.

Commonwealth v. Wilson, 430 Pa. 1, 6, 241 A.2d 760, 763 (1968) (Footnote omitted). In the instant case, we have the transcript of the sentencing phase of the case. At that time, the appellant was advised by the assistant district attorney of the following:

MR. SMITH [Assistant District Attorney]: Mr. Davis, you have been sentenced by the Court. You have the right within ten days of today’s date to file a motion to modify the sentence; and if you wish to raise the legality or the propriety of the sentence that Judge Dowling has just imposed on you at any time in any court, you must first do so in this court by filing a motion to modify sentence or your right to do so will be forever waived or given up.
You have the right within 30 days of today’s date to file an appeal to Superior Court of Pennsylvania. And if you fail to appeal within 30 days of today’s date, your right to appeal will be given up forever.
You have been representing yourself in spite of everyone’s advice that you accept the representation of counsel. These matters would best be submitted by counsel. You have stand-by counsel, and it is my assumption that stand-by counsel will consult with you about the propriety or the advisability of filing any of these things. You are entitled to the representation of counsel if you desire counsel to represent you and help you in filing either a motion to modify sentence or an appeal.
Do you understand that you have those rights?
THE DEFENDANT: I understand.

Thus, presently, we do not have a “silent” record regarding whether the appellant was aware of his Douglas rights, i.e., the right to appeal and the entitlement to court-appointed counsel to aid him in that endeavor. See also Pa.R.Crim.P. 1405. Accordingly, we do not see the need to remand for a hearing to supplement the record on this matter. See Commonwealth ex rel. Harbold v. Myers, 427 Pa. 117, 233 A.2d 261 (1967); Commonwealth v. Chase, 227 Pa.Super. 313, 323 A.2d 77, 79 (1974), and compare with Commonwealth v. Cooney, 439 Pa. 324, 266 A.2d 650 (1970); Commonwealth v. Ezell, 431 Pa. 101, 244 A.2d 646 (1968); Commonwealth v. Stewart, 430 Pa. 7, 241 A.2d 764 (1968); Commonwealth v. Wilson, supra; Commonwealth ex rel Neal v. Myers, 424 Pa. 576, 227 A.2d 845, 847 (1967); Commonwealth ex rel. Fink v. Rundle, 423 Pa. 133, 222 A.2d 717, 719 (1966); Commonwealth v. Sweitzer, 261 Pa.Super. 183, 395 A.2d 1376, 1381 (1978); Commonwealth v. Yarbough, 248 Pa.Super. 356, 375 A.2d 135 (1977); see also Commonwealth v. Moore, 440 Pa. 86, 270 A.2d 200 (1970); Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 233 A.2d 220 (1967).

Additionally, our review of the supplemental brief submitted by the court-appointed counsel to the PCRA court, and the appellate brief prepared by the same attorney, nowhere makes mention that the ineffectiveness of standby counsel is related to the decision to waive the initial opportunity to appeal. Compare Commonwealth v. Ross, 289 Pa.Super. 104, 432 A.2d 1073 (1981). Since the waiver of trial counsel issue “is not related to the decision to waive the appeal, such a claim will not be considered once it is established that there has been an effective waiver.” See Commonwealth v. Jumper, 494 Pa. 451, 454, 431 A.2d 941, 942 (1981); Commonwealth v. Tenner, 377 Pa.Super. 540, 545 n. 1, 547 A.2d 1194, 1196 n. 1 (1988); cf. Commonwealth ex rel. Stanley v. Myers, 209 Pa.Super. 396, 228 A.2d -215, 216 (1967) (“... it does not follow automatically that waiver of trial counsel includes waiver of counsel on appeal.”).

Our examination of the sentencing transcript evidences that the appellant was informed of his Rule 1405 (Douglas) rights, and, therefore, his failure to perfect an appeal thereafter was done knowingly and intelligently. See Commonwealth ex rel. Harbold v. Myers, supra. More importantly, nowhere does the appellant allege that he requested the appointment of post-trial or appellate counsel (or the aid of standby counsel) prior to the PCRA petition.

Accordingly, we affirm the order of the PCRA court although we do so on grounds other than those advanced below. See Commonwealth v. Tunnell, 463 Pa. 462, 464 n. 2, 345 A.2d 611, 612 n. 2 (1975); Commonwealth v. Berthesi, supra.

Order affirmed.

      . See 42 Pa.C.S. § 9541 et seq. (Supp.1989).

      . No transcript appears in the record of this preliminary hearing.

      . The appellant submitted a 31-page pro se "motion for modification of sentence nunc pro tunc”, wherein he, inter alia, (1) challenged the court’s ability to judge his “mental condition” at the time the crimes were committed, (2) questioned his sanity, and (3) claimed he was represented by incompetent counsel. This motion was denied by order of court dated February 6, 1989.

      . The fact that we cite cases which deal with the Post-Conviction Hearing Act’s waiver concept is of no moment since the same precept has been retained in the present PCRA. See 42 Pa.C.S. § 9544(b) ("Issues waived”) (1982) (repealed) and compare with 42 Pa.C.S. § 9544(b) (“Issues waived”) (Supp.1989).

       Presently, in Pennsylvania, Pa.R.Crim.P. 1405(c)(1) deals with one’s appellate rights as enunciated in Douglas.

      . Given the level of participation at trial and at sentencing by Attorney Konow, we deem it somewhat of a misnomer to label her as a mere "standby” counsel. See generally Commonwealth v. Fleming, 332 Pa.Super. 118, 480 A.2d 1214 (1984).

      . Rather, appellate counsel preoccupies himself with the contention that his client "was prejudiced by the trial court’s error in permitting the Appellant to represent himself at trial and by failing to appoint counsel in post-trial proceedings.” (Appellant’s Brief at 10) First, this issue is never reached because of our finding that the question posed should have been raised on appeal after the appellant’s sentencing and it was not, despite the appellant’s awareness of the consequences attendant to his failure to do so. See 42 Pa.C.S. § 9544(b) (Supp. 1989). Secondly, were we to reach the issue, we would note that a court cannot force a lawyer upon a defendant where he insists that he wants to conduct his own defense. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975).

      . Our thorough review of the record does not evidence that the appellant was so mentally incompetent that he was incapable of waiving either his right to counsel or right to appeal. See generally Commonwealth v. Melton, 465 Pa. 529, 351 A.2d 221 (1976); Commonwealth v. Brown, 443 Pa. 21, 275 A.2d 332, 335 (1971). He was held to be competent by the pre-trial motions court so as to be tried without counsel. And, the accounting of the events at trial lead this Court to discount the likelihood that the appellant was somehow incompetent. Thus, had we held that the appellant did not waive his right to appeal, the question of competency would have been found to exist so as to invalidate the appellant’s appellate claims of being "incompetent" and the lower court’s failure to comply in toto with Pa.R.Crim.P. 318. As to the latter point, we would mention that the appellant was not advised of the fifth and sixth "recommended" guidelines referred to under the Comment to Rule 318. However, when a Rule 318 violation occurs, relief is warranted only if the appellant suffers actual prejudice as a result thereof. See Commonwealth v. Bastone, 321 Pa.Super. 232, 236, 467 A.2d 1339, 1341 (1983), citing Commonwealth v. Carver, 292 Pa.Super. 177, 436 A.2d 1209 (1981).
      The appellant claims he sustained actual prejudice in that trial counsel, had he been informed of all six (6) areas discussed in the Comment to Rule 318, would not have been waived by him. And, as a result, counsel would have been present to object to the trial court's discussion in its charge to the jury about not being concerned with the appellant’s "mental condition" since it was not an issue in the case.
      In any event, we find it difficult to believe that standby counsel, given her input by conferring with the appellant during the trial, being present and not objecting if a mistrial were declared on the attempted murder charge because of a "hung” jury and speaking to the issue of clarifying an introduction of an exhibit by the prosecution, would for some reason stand mute when the trial court was giving its instructions to the jury unless she believed that the appellant was not prejudiced by the "mental state” remarks. The scenario belies the inactivity of standby counsel.
      We find, as did the PCRA court, the remarks of the trial court on the "mental state" question merely "clarified” the issues for the jury so it would not be sidetracked by the non-existent issue touching upon whether the appellant was non compos mentis. See Commonwealth v. Jordan, 407 Pa. 575, 181 A.2d 310 (1962); Commonwealth v. Litman, 276 Pa.Super. 114, 419 A.2d 121 (1980).


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    573 A.2d 1108
    Nicholas S. CALDARARO, Appellant, v. KEYSTONE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1989.
    Filed April 16, 1990.
    Petition for Allowance of Appeal Denied Aug. 13, 1990.

      Edward Leymarie, Jr., Ellwood City, for appellant.
    Charles P. Sapienza, Jr., Ellwood City, for appellee.
    Before DEL SOLE, BECK and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Plaintiff-Appellant, Nicholas S. Caldararo, instituted this declaratory judgment action to obtain a ruling regarding his claim for certain benefits under a motor vehicle insurance policy issued to him and his wife by the Defendant-Appellee, Keystone Insurance Company. After the close of pleadings, both parties filed motions for judgment on the pleadings. The trial court denied the plaintiff’s motion, but granted the motion of the defendant. We find no error in the trial court’s order granting judgment on the pleadings for the defendant.

The facts are not in dispute. In 1987, the plaintiff was injured in a motor vehicle accident in which he was a passenger in a vehicle operated by his wife. The plaintiff owned the vehicle, and both he and his wife were covered by a policy of insurance issued by the defendant. The plaintiff instituted a claim against his wife, which resulted in a payment to him by the defendant of $100,000.00, the full liability coverage limit in the policy. The plaintiff executed a release to his wife. Thereafter, the plaintiff instituted a claim with the defendant-insurer for additional payments under the underinsured motorist coverage of the policy. That claim was denied, and this litigation followed.

The defendant-insurer relies upon various policy provisions to support its position that the plaintiff is not entitled to recover both liability and underinsurance proceeds under the provisions of the insurance policy in issue in this case. An examination of the applicable policy provisions is, of course, essential in our resolution of this appeal.

The first relevant section of the policy to be referenced is the bodily injury liability section, under which the plaintiff has already recovered the full policy limits. In pertinent part, that section of the policy includes the following limitation clause:

The limit of liability shown in the Declarations for “each person” for Bodily Injury Liability is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident. Subject to this limit for “each person”, the limit of liability shown in the Declarations for “each accident” for Bodily Injury Liability is our maximum limit of liability for all damages for bodily injury resulting from any one auto accident. The limit of liability shown in the Declarations for “each accident” for Property Damage Liability is our maximum limit of liability for all damages to all property resulting from any one auto accident. This is the most we will pay regardless of the number of:
1. Covered persons;
2. Claims made;
3. Vehicles or premiums shown in the Declarations; or
4. Vehicles involved in the auto accident.

The underinsured motorists provisions of the policy include the following basic statement regarding the coverage provided:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of either an uninsured motor vehicle or underinsured motor vehicle, but not both, because of bodily injury:
1. Sustained by a covered person; and
2. Caused by an accident.
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle or underinsured motor vehicle. We will pay damages under this coverage arising out of an accident with an underinsured motor vehicle only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.
The amount of damages we will pay is subject to the provisions of our Limit of Liability.
No judgment for damages arising out of a suit brought against the owner or operator of an uninsured motor vehicle or underinsured motor vehicle is binding on us unless we:
1. Received reasonable notice of the pendency of the suit resulting in the judgment; and
2. Had a reasonable opportunity to protect our interests in the suit.
“Covered person” as used in this endorsement means:
1. You or any family member.
2. Any other person occupying your covered auto.
3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. or 2. above.

This same policy section defines an underinsured motor vehicle as follows:

“Underinsured motor vehicle” means a land motor vehicle or trailer of any ■ type to which a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is not enough to pay the full amount the covered person is legally entitled to recover as damages.
“Underinsured motor vehicle” does not include an uninsured motor vehicle.
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In addition, neither “uninsured motor vehicle” nor “underinsured motor vehicle” includes any vehicle or equipment:
1. Owned by or furnished or available for the regular use of you or any family member.

Finally, the insurance contract includes underinsurance limitation of liability clauses which, in pertinent part state:

Except as provided in the following paragraph, the limit of liability shown in the Schedule or in the Declarations for “each person” for Uninsured/Underinsured Motorists Coverage is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one accident. Subject to this limit for “each person”, the limit of liability shown in the Schedule or in the Declarations for “each accident” for Uninsured/Underinsured Motorists Coverage is our maximum limit of liability for all damages for bodily injury resulting from any one accident. This is the most we will pay regardless of the number of:
1. Covered persons;
2. Claims made;
3. Vehicles or premiums shown in the Schedule or in
the Declarations; or
4. Vehicles involved in the accident.
If bodily injury is sustained in an accident by you or any family member, our maximum limit of liability for all damages in any such accident is the sum of the limits of liability for Uninsured/Underinsured Motorists Coverage shown in the Declarations applicable to each vehicle. Subject to this maximum limit of liability for all damages, the most we will pay for bodily injury sustained by a covered person other than you or any family member is the limit shown in the Schedule or in the Declarations applicable to the vehicle the covered person was occupying at the time of the accident. This is the most we will pay regardless of the number of:
1. Covered persons;
2. Claims made; or
3. Vehicles involved in the accident.
However, no covered person will be entitled to receive duplicate payments for the same elements of loss. Any amounts otherwise payable for damages which the covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of bodily injury caused by an accident, shall be reduced by all sums paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A.
Any payment under this coverage will reduce any amount that person is entitled to recover for the same damages under Part A.

Reading all of these sections together certainly leads to the conclusion that the policy precludes the plaintiff from recovering underinsurance benefits after he has already recovered for losses under the liability coverage provisions of the agreement.

The fact that the damage was incurred while he was a passenger in his own vehicle clearly appears to prohibit the plaintiffs claim because of the underinsured section which declares that an “underinsured motor vehicle” does not include any vehicle “owned by ... you or any family member.” The same coverage exclusion was the subject of examination by our Court, en banc, in the case of Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa.Super. 51, 535 A.2d 1145 (1988). In that declaratory judgment action, which followed a single vehicle accident, underinsured motorist benefits were sought on behalf of an injured passenger who had already recovered the limits of the liability coverage of the same host vehicle policy. It was held that such a recovery was not proper in light of policy declarations identical to those in the instant case which excluded the insured vehicle from the definition of “under-insured motor vehicle.” It was held that such a coverage exclusion did not violate the public policy of our Commonwealth, and did not contravene the express provisions or intent of the Pennsylvania Motor Vehicle Financial Responsibility Law, Act of February 12, 1984, P:L. 26, No. 11, § 3, 75 Pa.C.S. § 1701, et seq., effective October 1, 1984.

The appellant has correctly pointed out that in Wolgemuth, our Court did not rule upon whether an insured, as that term is defined in the Motor Vehicle Financial Responsibility Law, could recover under both the liability and underinsured motorist provisions of a single policy. That question was specifically reserved for another case, and no opinion was expressed with regard to that issue. Of course, we are now presented with that problem in the instant appeal. We have no basis to conclude that a result different from that rendered in Wolgemuth would be appropriate here.

The appellant has presented no compelling arguments which support the type of recovery he seeks. He has not challenged the critical policy language as ambiguous. In fact, his brief states: “There is no question of clarity or ambiguity involving the policy language of the Keystone policy.” Instead, he grounds his argument on the general position that the provisions in issue are repugnant to the policy underlying the Motor Vehicle Financial Responsibility Law and are contrary to its terms. Contentions identical to those raised by the appellant were directly examined and rejected by our Court in Wolgemuth.

Further, he pleads for a liberal interpretation of the policy in favor of the insured. Our Court also recognized the appropriateness of such an approach in Wolgemuth. However, given the appellant’s own admission that the exclusionary provisions are clear and unambiguous, a conclusion with which we have no disagreement, we have no basis for interpreting them to allow the plaintiff the recovery he seeks. His automobile was clearly not to be considered an “underinsured” motor vehicle under the terms of his insurance agreement.

The appellant points out our Court’s approval in Wolgemuth of the statement by the Minnesota Supreme Court in Myers v. State Farm Mutual Automobile Insurance Co., 336 N.W.2d 288, 291 (Minn.1983) that underinsured motorist coverage is first party coverage and, in that sense, the coverage follows the person and not the vehicle. He also tries to distinguish his legal position as an insured to that of a class two beneficiary like the passenger in the Wolgem,uth case. We are convinced that the distinctions raised by the appellant do not require a different result from that reached in Wolgemuth, in light of the purpose of underinsured motor vehicle coverage, which our Court discussed in that case:

The purpose of underinsured motorist coverage is to protect the insured (and his additional insureds) from the risk that a negligent driver of another vehicle will cause injury to the insured (or his additional insureds) and will have inadequate liability coverage to compensate for the injuries caused by his negligence. Thus, an insured who purchases $100,000.00 of liability coverage to protect others from his negligence, must, by law, be offered the option of purchasing up to $100,000.00 of underinsured motorist coverage to protect himself and his additional insureds from the risk that they will be severely injured by a negligent driver who has liability coverage in an amount insufficient to fully compensate them for their injuries. The language of the statute itself suggests that underinsurance motorist coverage requires the existence of at least two applicable policies of motor vehicle insurance. See 75 Pa.C.S. § 1731(c). An underinsured motor vehicle, must, by definition, be an insured vehicle. Thus, the statute contemplates one policy applicable to the vehicle which is at fault in causing the injury to the claimant and which is the source of liability coverage (which is ultimately insufficient to fully compensate the victim), and a second policy, under which the injured claimant is either an insured or a covered person. It is the second policy which the statute contemplates as the source of underinsured motorist coverage, where the liability coverage provided by the first policy of insurance is insufficient to fully compensate the claimant for his injuries.

370 Pa.Super. at 58, 535 A.2d at 1149.

We believe that permitting the plaintiff the underinsurance recovery he seeks in this action would require that we ignore the purpose of the coverage, as described above. Obviously we would also have to ignore the provision of the insurance agreement which excludes the plaintiffs automobile from the category of vehicles which may be considered to be “underinsured” for purposes of such coverage. As noted above, the exclusion is neither ambiguous nor contrary to the provisions or intent of the Motor Vehicle Financial Responsibility Law, and we will not ignore it.

The aforesaid conclusions would be enough, standing alone, to support an affirmance of the trial court’s Order. However, we deem it appropriate to note our conclusion that the wording in the limitation of liability clauses in both the liability and underinsured motorist sections of the policy would also operate to deny the appellant a right to recover in this case. A detailed analysis of those sections is not necessary in this opinion in view of our rejection of the appellant’s arguments concerning the underinsurance vehicle exclusion discussed at length above.

The Order of the trial court is hereby affirmed.


author: OLSZEWSKI, Judge:

text:
    573 A.2d 1112
    COMMONWEALTH of Pennsylvania v. Michael Thomas O’NEIL, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued March 20, 1990.
    Filed April 27, 1990.

      Barry D. Wilson, Lancaster, for appellant.
    James J. Karl, Asst. Dist. Atty., Lancaster, for Com., appellee (submitted).
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This consolidated appeal combines an appeal from judgment of sentence with an appeal from denial of post-conviction relief concerning the same charges. In No. 1353 Philadelphia 1989, appellant’s direct appeal, three issues are presented for our review. In No. 2729 Philadelphia 1989, the appeal from denial of post-conviction relief, appellant presents one issue. We consider these issues seriatim.

Appellant pleaded guilty on January 3, 1989 to one count of burglary, 18 Pa.C.S.A. § 3502(a); four counts of receiving stolen property, 18 Pa.C.S.A. § 3925; two counts of theft by unlawful taking, 18 Pa.C.S.A. § 3921(a); one count of theft by deception, 18 Pa.C.S.A. § 3922; one count of retail theft, 18 Pa.C.S.A. § 3929(a)(1); and one count of unlawful use of credit cards, 18 Pa.C.S.A. § 4106(a)(1). Appellant was sentenced on April 14, 1989 to four-to-ten years’ imprisonment, followed by probation, and ordered to pay costs of prosecution and restitution.

Appellant’s current counsel began representation shortly after sentencing, filing a timely motion to modify sentence on April 24, 1989. A timely notice of appeal was filed on May 12, 1989. The trial court dismissed appellant’s motion to modify sentence on June 14, 1989. On August 23, 1989, while appellant’s direct appeal was pending in this Court, appellant filed, pro se, a petition under the Post Conviction Relief Act (“PCRA”). Appellant’s PCRA petition was dismissed by the trial court without a hearing. Appellant filed a timely appeal from the denial of PCRA relief, which was consolidated with appellant’s direct appeal.

No. 1353 Philadelphia 1989

Appellant’s first issue in his direct appeal concerns alleged ineffectiveness of trial counsel. Appellant alleges that trial counsel was ineffective in: (1) failing to pursue discovery; (2) failing to seek suppression of certain evidence; (3) failing to assure that appellant’s guilty pleas were voluntary, knowing and intelligent; and (4) failing to adequately represent appellant at his sentencing hearing.

Issues not raised in post-verdict motions will not ordinarily be considered on appeal. Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986). Where ineffectiveness of trial counsel is alleged, the claim of ineffectiveness “must be raised at the earliest stage in the proceedings at which counsel whose effectiveness is being challenged no longer represents appellant.” Commonwealth v. House, 371 Pa.Super. 23, 27, 537 A.2d 361, 363 (1988); Commonwealth v. Seachrist, 478 Pa. 621, 624, 387 A.2d 661, 663 (1978).

Appellant’s current counsel began representing him upon filing a timely motion to modify sentence on April 24, 1989. Appellant could have, without seeking an extension, challenged his guilty plea before the trial court up to and until this same date, pursuant to Pa.R.Crim.P. 321. Appellant’s ineffectiveness claim was not raised until approximately three-and-one-half months later when his appellate brief was filed with this Court on August 7, 1989. Because appellant’s claim of ineffectiveness was not raised “at the earliest stage in the proceedings” at which he was represented by current counsel, his ineffectiveness claims are waived. We note that we have examined appellant’s claims of ineffectiveness and that, were we to deal with their merits, we would not find appellant entitled to relief.

Appellant's next issue in this appeal concerns the legality of his sentence. Appellant argues that because he has tested positive for antibodies to the Human Immunodeficiency Virus (HIV), a sentence of imprisonment violates his right under the Eighth Amendment to the United States Constitution to be free from cruel and unusual punishment. A defendant may challenge the legality of his sentence as of right; appellant did not waive the constitutionality of his sentence by failing to raise it in his motion to modify sentence. 42 Pa.C.S.A. § 9781(a); Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982); Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Howard, 373 Pa.Super. 246, 540 A.2d 960 (1988).

Appellant does not cite, nor are we aware of, any authority for his claim that incarcerating the physically infirm is per se cruel and unusual punishment. In Commonwealth v. Carr, 375 Pa.Super. 168, 543 A.2d 1232, appeal denied, 520 Pa. 613, 554 A.2d 506 (1988), this Court rejected a similar argument made by an elderly litigant:

Appellant does not contend that a sentence of two to four years imprisonment is per se cruel and unusual punishment or even that such a sentence is disproportionate to the harm occasioned by the crimes of which he is convicted. Rather, appellant presents the rather novel argument the sentence is unconstitutional (rather than merely an abuse of discretion) because the trial court rejected an alternative probationary scheme proposed by appellant which appellant argues would have protected the community while better accommodating appellant’s special mental health needs. We reject this argument. We note that appellant has not established, and indeed does not even allege, that mental health services available within the Pennsylvania prison system cannot adequately meet appellant’s alleged special mental health needs.

Id., 375 Pa.Superior Ct. at 171, 543 A.2d at 1235.

The trial court in the case sub judice, as did the Court in Carr, rejected appellant’s proposed alternative sentencing scheme in favor of imprisonment, and stated on the record its reasons for doing so. While we do not doubt appellant’s assertion that his HIV infection will ultimately prove fatal, we find no indication in the record that appellant has yet exhibited any symptoms, of AIDS. That appellant may not live to see the end of his term of imprisonment does not, without more, make his sentence of four-to-ten years’ imprisonment unconstitutional. We recognize the gravity of appellant’s situation, but cannot and will not make the sweeping pronouncement he seeks. We hold that sentencing an HIV-infected convict to a term of imprisonment is not per se cruel and unusual punishment.

Appellant’s final issue in his direct appeal concerns whether “principles of fairness and humanitarianism” dictate that he be released to a drug rehabilitation center in his home state of Massachusetts. This appears to present an appeal from the discretionary aspects of sentence. While appellant does not include a Pa.R.A.P. 2119(f) statement of reasons for allowance of appeal in his brief, the Commonwealth has not objected to this omission. We will therefore consider this issue. Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987).

We begin by noting that appellant has raised the appearance of a substantial question whether the sentence is appropriate, pursuant to 42 Pa.C.S.A. § 9781(b). Upon examination, however, we find no authority which would allow us to find that it is an abuse of discretion to sentence a physically infirm or drug addicted inmate to a term of imprisonment otherwise properly imposed. Quite to the contrary, Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980), holds that it is within a trial court’s discretion to imprison a paraplegic defendant.

The record shows that the trial court considered appellant’s history of drug addiction and HIV infection, as well as his extensive prior criminal record, in determining that incarceration was appropriate. We hold that the trial court did not abuse its discretion in ordering appellant to serve a four-to-ten year term of imprisonment, a sentence within the standard guideline range. See n. 1, supra. Should appellant show symptoms of AIDS, the trial court has the discretion, pursuant to 61 P.S. § 81, to modify his sentence.

Having examined all three issues appellant raises in his direct appeal, and finding them to be of no merit, we affirm the judgment of sentence.

No. 2729 Philadelphia 1989

The PCRA court dismissed appellant’s petition based on the pendency of appellant’s direct appeal. We agree that a Post Conviction Relief Act petition filed while a defendant’s direct appeal remains pending is premature. We therefore quash this appeal.

In No. 1353 Philadelphia 1989, judgment of sentence affirmed. In No. 2729 Philadelphia 1989, appeal quashed.

      . The minimum 48 months to which appellant was sentenced falls within the standard guideline range for appellant’s guilty plea to burglary. All other prison terms to which appellant was sentenced run concurrently with appellant’s four-to-ten year sentence for burglary. The maximum aggregate term of imprisonment which appellant could have received, as calculated by the trial court, was 56 years.

      . It would appear that the trial court lost jurisdiction to modify appellant’s sentence on May 14, 1989. See Pa.R.A.P. 1701, Pa.R. Crim.P. 1410, comment; Commonwealth v. Feagley, 371 Pa.Super. 593, 538 A.2d 895 (1988).

      . We consider appellant’s issues in an order different from their presentation in his appellate brief.

      . The Human Immunodeficiency Virus has been established to cause AIDS. Redfield, R.R. and Burke, D.S., “HIV Infection: The Clinical Picture” Scientific American, 90 (Oct. 1988).

      . Appellant sought a court-ordered physical examination, which the trial court denied.

      . Appellant is correct in stating that inadequate medical treatment violates a prisoner’s eighth amendment rights. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251, 261 (1976). Appellant has not alleged, however, that prison officials have been "deliberately indifferent" to his serious medical needs. See, e.g., Estelle, supra;

        Nottingham v. Peoria, 709 F.Supp. 542, 546-547 (M.D.Pa.1988). Our holding does not prejudice appellant from seeking relief in an appropriate forum should prison officials show deliberate indifference to his serious medical needs.

      . Our disposition of this appeal does not preclude appellant from refiling his petition at an appropriate time. See Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988); Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989).


text:
    573 A.2d 1116
    Joanne DAYWALT, Appellant, v. MONTGOMERY HOSPITAL and Jacqueline Burgess, Appellees.
    Superior Court of Pennsylvania.
    Submitted March 20, 1990.
    Filed April 27, 1990.

      Richard W. Rogers, Norristown, for appellant.
    David S. Florig, Philadelphia, for appellees.
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Joanne Daywalt appeals the trial court’s order granting appellees’ motion for summary judgment in this defamation action. The trial court granted appellees’ motion because it found that appellees’ communications were conditionally or absolutely privileged. We agree with the trial court and affirm the order. Appellant also contends that the trial court erred in dismissing her count asserting wrongful suspension. We find that appeal of this issue is untimely; accordingly, we quash this portion of the appeal.

The record shows that appellant was a radiation therapy technologist employed by appellee Montgomery Hospital. Appellee Jacqueline Burgess was appellant’s supervisor. On June 3, 1986, Burgess noticed that appellant was carrying her time card in her pocket. Burgess was suspicious, because appellant had been late for work before and had been reprimanded for tardiness. Later, Burgess inspected the time card and noticed that the time clocked in was faint, as if erased. Burgess suspected that appellant had altered the card.

Burgess discussed the matter with supervisors in the payroll department, as well as the personnel director. The personnel director checked other cards in the department and found that none were faint, as appellant’s was. The personnel director concluded that appellant attempted to fraudulently alter her time card, and he dictated a memorandum regarding the incident. This memorandum was typed by his secretary. The secretary may also have overheard a conversation between appellant and the personnel director when appellant was called to his office for disciplinary action.

Appellant brought this action, alleging defamation and wrongful suspension. The count alleging wrongful suspension was dismissed on June 22, 1987, for failure to state a valid cause of action under Pennsylvania law. This decision was never appealed. On August 8, 1989, the trial court granted summary judgment to appellees on the defamation count, finding that the communications were conditionally privileged and that the privilege was not abused. This appeal followed.

Before we reach the merits of this appeal, we must address two procedural issues: whether the appeal of the wrongful suspension was timely, and whether the trial court was authorized to reconsider its denial of a motion for summary judgment nine months after the denial was entered.

Ordinarily, an order dismissing some counts of a multi-count complaint is interlocutory and not appealable; however, where the dismissed counts are separate and distinct causes of action, the order is appealable. Praisner v. Stocker, 313 Pa.Super. 332, 336, 338, 459 A.2d 1255, 1258, 1261 (1983). The claim for wrongful suspension is separate and distinct from the claim for defamation. These counts are not “alternate theories to support recovery on the same cause of action.” See Cloverleaf Development v. Horizon Financial F.A., 347 Pa.Super. 75, 81, 500 A.2d 163, 167 (1985). These claims request different relief for different harms; accordingly, the order dismissing the claim for wrongful suspension was final and appealable at the time it was entered, more than two years before this appeal. Appeals must be brought at the earliest possible opportunity. Consequently, this appeal is untimely and must be quashed.

Appellant also argues that the trial court did not have the power to reconsider its order denying appellees’ motion for summary judgment. We disagree. The statute limiting the time for reconsideration of orders, 42 Pa.C.S.A. § 5505, applies only to appealable orders. Commonwealth v. Baker, 352 Pa.Super. 260, 507 A.2d 872 (1986). An order denying a motion for summary judgment is not a final, appealable order. Accordingly, we must address the merits of this appeal.

Appellant asserts that there is a genuine issue of material fact whether the publications in question were done on a proper occasion, in a proper manner, from a proper motive, to proper parties, and upon reasonable cause. We find no genuine issues of material fact; consequently, we affirm the order of the trial court.

Appellant alleges that a defamation occurred when a secretary prepared appellant’s notice of suspension. This Court has held that employers have an absolute privilege to publish defamatory matters in notices of dismissal or warning letters. Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456, 464 (1984). This privilege can be lost through excessive publication. Id. Incidental publication to a secretary or stenographer in the course of preparing such notices is not an abuse of the privilege. Cf. Restatement of Torts (2d) § 604 comment b, paragraph 2 (incidental publication to secretaries, clerks, and stenographers in the course of standard business practices is not an abuse of a conditional privilege). Thus, as a matter of law, the publication to the secretary was privileged. Accordingly, the trial court properly granted summary judgment with regard to this publication.

Appellant also alleges defamation in publications to members of the payroll department and to the personnel director. A publication is conditionally privileged if the publisher reasonably believes that the recipient shares a common interest in the subject matter and is entitled to know. Restatement of Torts (2d) § 596. This privilege applies to private communications among employers regarding discharge and discipline. Cf. Id., comment c, paragraph 2. The members of the payroll department and the personnel director shared Burgess’s interest in appellant’s activities. The members of the payroll department were responsible for inspecting and reviewing time cards. As such, they were entitled to know of Burgess’s suspicions regarding alteration. The personnel director is responsible for disciplinary procedures. As such, he was entitled to know of any possible misconduct.

Appellant emphasizes the fact that Burgess did not follow the hospital’s organizational chart when conveying her suspicions. This fact is irrelevant. All of these recipients had a common interest in the matters published.

Furthermore, appellant has utterly failed to show any abuse of the privilege. The plaintiff has the burden of pleading and proving abuse of privilege. 42 Pa.C.S.A. § 8343. The only evidence or allegation of abuse in the record is a vague statement in the complaint that Burgess “wickedly intended” to cause appellant harm.

A thorough review of the record reveals no evidence of spite, malice, or improper purpose. Rather, the record shows that Burgess and the personnel director made an effort to ascertain the truth of the matter. The record does not reflect any animus or hostility directed toward appellant. On the contrary, appellant’s own deposition shows that appellee began harassing her after this incident, not before. Deposition of Joanne Day wait at 55-57. Burgess’s deposition shows that she felt neutral toward appellee before the incident. Deposition of Jacqueline Burgess at 5-6. The trial court gave appellant the opportunity to provide evidence of malice, but she failed to produce any information on this matter.

In addition, the record shows an abundance of reasonable cause for belief that appellant altered her time card. Appellant carried the card with her during the day. Her department was one of the few with an ink eraser. Her time card was the only one with a faint entry that morning. She had a history of tardiness and had been reprimanded for it.

The publications to the personnel director and the payroll department were conditionally privileged. There is no genuine issue whether the privilege was abused, as there is no evidence that the publishers acted upon improper motives, for improper reasons, or without reasonable cause. Accordingly, the trial court properly granted summary judgment with regard to these publications.

Order affirmed.

      . Appellant’s brief misrepresents the record regarding this point. Appellant claims that the personnel director “did in fact find one card that had reflected a ‘light malfunctioning punch in ... the time clock itself.” On the contrary, the personnel director stated at his deposition that “[o]n no time card was there a light malfunctioning punch in ... the time clock itself.” Deposition of Vincent Arch at page 10 (emphasis added).

      . The complaint in this case is deficient in that it fails to allege the recipients of the publications in question. Nevertheless, the record evinces several possible recipients. We will consider all publications supported by the facts in the record.

      . The record shows that Burgess consulted the payroll officers to solicit their opinion whether the card was tampered with. At his deposition, the personnel director testified that he inspected all of the other time cards to determine whether any of them were similarly faint.


author: MONTEMURO, Judge:

text:
    573 A.2d 1119
    Dorothy WERNER, Appellee, v. John P. WERNER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 4, 1990.
    Filed April 30, 1990.

      Jon Marshall, Philadelphia, for appellant.
    Victoria S. Maranzini, Philadelphia, for appellee.
    Before McEWEN, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

Appellee Dorothy Werner brought this action in equity for partition of property owned by the parties as tenants in common. The trial court appointed a master to take testi'mony, make findings of fact and conclusions of law. Following a hearing at which both parties presented testimony and various documents, the master filed a report recommending that appellee-plaintiff’s request for partition be granted. Appellant John Werner appeals from the trial court decree and adjudication dismissing appellant’s exceptions to the master’s report and ordering a partition of the premises and an equal division of the net proceeds of the sale between the parties.

Appellant raises five issues for our review: (1) whether the master and trial court erred in failing to find that the claim was barred by laches and the statute of limitations; (2) whether appellant’s counterclaim for contribution was properly permitted in this action for partition; (3) whether the master and the trial court committed an abuse of discretion in finding that the funds expended by appellant for repair of the property were offset by the rental income received by appellant from the property; (4) whether the master and trial court abused their discretion in making findings as to rents, in light of the fact that appellee did not request rents or profits in her original complaint; (5) whether the trial court erred in dismissing appellant’s claims to expenses incurred after the date of the master’s hearing. For the reasons which follow, we affirm the order of the trial court. Because we find that appellant’s counterclaim for expenses incurred in the upkeep of the property should not have been included in this action, we need not address issues 3, 4, and 5.

The relevant facts, as gleaned from the pleadings and the master’s findings, may be summarized as follows. The parties were married in June, 1953, and in October 1956, purchased the subject property, consisting of a parcel of real estate with improvements located at 4641-43 North Front Street in Philadelphia, as tenants by the entireties. The parties used their shared funds to purchase the property and worked together to convert the second floor into an income-producing apartment. Appellee vacated the premises in 1959, while appellant continued to occupy the premises. As of the date of the master’s hearing in 1986, appellant was still living in the home. In December, 1963, the parties were divorced. Title to the premises remains in the name of appellant and appellee.

On May 30, 1984, appellee filed the present action against appellant seeking partition of the property pursuant to the Act of May 10, 1927, as amended, 68 P.S. § 501 et seq. In response, appellant counterclaimed for repayment of funds expended for maintenance, taxes, insurance and mortgage payments. In New Matter, appellee asserted that the rental income received by appellant offset the expenses incurred by appellant in upkeeping the premises and that according to the laws of Pennsylvania, only liens of record could be deducted from the proceeds of a partition sale.

The scope of appellate review of a decree in equity is limited. Absent an abuse of discretion or an error of law, we are bound to accept the findings of the trial court or master, particularly where the findings are largely dependent upon the credibility of the witnesses. Walley v. Iraca, 360 Pa.Super. 436, 520 A.2d 886, 889 (1987). .

Appellant claims that the trial court and master erred in failing to find that appellee’s claim for partition was barred by the statute of limitations and the doctrine of laches. Appellee responds that appellant waived these defenses by failing to raise the defenses in his New Matter. Pennsylvania Rule of Civil Procedure 1030 requires that all affirmative defenses, including the defenses of laches and statute of limitations, be pleaded in a responsive pleading under the heading “New Matter.” A review of the pleadings shows that appellant did not raise these defenses in his New Matter. Failure to plead an affirmative defense in compliance with Rule 1030 results in waiver of the defense. Pa.R.C.P. 1032; American Leasing v. Morrison Co., 308 Pa.Super. 318, 324, 454 A.2d 555 (1982); Judge v. Celina Mutual Ins. Co., 303 Pa.Super. 221, 226, 449 A.2d 658 (1982); Fudula v. Keystone Wire & Iron Works, 283 Pa.Super. 502, 508, 424 A.2d 921 (1981). We find that appellant has waived the statute of limitations and laches defenses.

For the first time on this appeal, appellant claims that the trial court and master erred in rendering a decision on the issue of the parties’ respective liabilities regarding contribution for expenses incurred by appellant and for rents received by appellant from 1959 through 1986. Thus, appellant, having asserted a counterclaim for contribution for the maintenance and mortgage payments, and having presented evidence on the issue at the master’s hearing and argued exceptions to the master’s findings on the issue, is now in the unusual position of arguing that the master and trial court erred in considering appellee’s claim for partition and appellant’s counterclaim in the context of the same action. We note that the master found that appellant’s claim for contribution was offset by appellee’s claim for rental income.

A review of the relevant statutes and caselaw reveals that appellant’s claim for contribution should have been brought in a separate action. The instant action for partition is governed by 68 P.S. §§ 501 and 503, which provide:

§ 501. Divorced tenants by entireties hold as tenants in common; suit for sale and division of proceeds.
Whenever any husband and wife, hereafter acquiring property as tenants by entireties, shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value and either of them may bring suit against the other to have the property sold and the proceeds divided between them.
§ 503. Division of proceeds; liens; record of divorce; payments into court
The proceeds of any sale had under the provisions of this act, after the payment of the expenses thereof, shall be equally divided between the parties, subject, however, to the deduction therefrom of the amount of any lien entered of record jointly against both of the respective parties, together with any interest due thereon and docket costs; and the amount of any liens entered of record against either of such parties, together with interest due and costs taxed thereon, shall be deducted from the share of the party against whom such lien is filed, and paid to the person or persons to whom the same is due and payable: ...

68 P.S. §§ 501, 503. Pennsylvania Rules of Civil Procedure 1551-1574 set forth the procedures to be followed in an action for partition of real property. Pa.R.C.P. 1570 provides, in relevant part:

Rule 1570. Adjudication and Decree
(a) The adjudication shall include findings of fact as follows:
(4) the mortgages, liens and other encumbrances or charges which affect the whole or any part of the property and the amount due thereon;
(5) the credit which should be allowed or the charge which should be made, in favor of or against any party because of use and occupancy of the property, taxes, rents or other amounts paid, services rendered, liabilities incurred or benefits derived in connection therewith or therefrom;

Pa.R.C.P. 1570. Thus, a conflict exists as to whether a court entertaining a claim for partition brought by a divorced tenant by the entireties can offset against the partition proceeds the expenses enumerated in Pa.R.C.P. 1570.

In Hairston v. Hairston, 381 Pa.Super. 278, 553 A.2d 464 (1989), this Court addressed this precise issue and held that the provisions of 68 P.S. § 501 et seq. must be strictly followed, and, therefore, only liens of record may be deducted from the sale proceeds. The Court held that any claims for expenses incurred for maintenance, taxes, mortgages, or for rental incomes must be brought in a separate action. Id., 381 Pa.Superior Ct. at 286, 553 A.2d at 468. The appellee in Hairston had filed an action for partition in accordance with 68 P.S. § 501 et seq. and had included in her claim for partition a request for an accounting for the rents. The appellant counterclaimed for funds expended for the mortgage payments, interest, taxes, maintenance, enhancements and other expenses associated with the property. Despite the fact that the trial court had addressed the appellee’s claim for rental income and appellant’s claim for expenditures for the property, this Court held that the parties could only raise those claims cognizable under 68 P.S. § 501 et seq. Hairston, supra, 381 Pa.Superior Ct. at 286, 553 A.2d at 468.

In the present case, appellee filed an action for partition pursuant to 68 P.S. § 501 et seq., and appellant responded with a counterclaim for monies expended in making the mortgage payments and maintaining the property. Given the holding in Hairston, we are constrained to hold that appellant’s claim for contribution must be brought in a separate action.

Having reviewed the trial court’s opinion and decree and adjudication, we find that the trial court properly applied the provisions of 68 P.S. § 501 et seq. The decree and adjudication states, in relevant part:

# * * * * *
3) A partition of the premises 4641-43 North Front Street, Philadelphia, Pa., is hereby Ordered with the net proceeds of sale to be divided one-half (V2) to plaintiff, Dorothy Werner, and one-half (V2) to defendant, John P. Werner.
4) The subject property shall be placed upon the market for sale by the parties with a licensed real estate broker within ten (10) days of the date of this Order and sold at public and/or private sale.
5) All necessary costs of sale including but not limited to brokerage commissions and transfer taxes shall be deducted from the gross proceeds of sale.
6) Any liens upon the premises are to be paid and satisfied from the net proceeds of defendant, John P. Werner, inasmuch as these liens, if any, are not the indebtedness of Dorothy Werner. Any liens or claims solely attributable to plaintiff, Dorothy Werner, shall be deducted from the net proceeds payable to Dorothy Werner.

Although the master heard evidence and made a finding on appellant’s claim for contribution, we note that the provisions of the trial court’s order, as quoted above, are in complete accordance with 68 P.S. § 501 et seq. We affirm the decree and adjudication of the trial court.

We need not address appellant’s remaining contentions because they deal with appellant’s counterclaim which was improperly filed in response to the instant action for partition.

Decree and Adjudication affirmed.

      . An interlocutory appeal may be taken as of right from an order directing a partition. Pa.R.A.P. 311(a)(6).


author: CAVANAUGH, Judge:

text:
    573 A.2d 1123
    COMMONWEALTH of Pennsylvania, Appellee, v. Joseph WASHINGTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 4, 1989.
    Filed March 30, 1990.

      Frederick W. Ulrich, Asst. Public Defender, Harrisburg, for Washington, appellant.
    Julia A. Merl, Harrisburg, for appellee.
    Before CAVANAUGH, BROSKY and WIEAND, JJ.
   CAVANAUGH, Judge:

This is an appeal from judgment of sentence entered on July 11, 1989 by the Dauphin County Court of Common Pleas following a jury trial taking place from October 6-10, 1988. Appellant Joseph Washington was convicted for possession of a controlled substance with intent to deliver and possession of drug paraphernalia. Post-trial relief was denied and appellant was sentenced to a period of incarceration of two to twenty-three months. At the time of this offense, Mr. Washington was thirty-four years old and had no criminal record.

Mr. Washington appeals his conviction. Several errors merit the grant of a new trial. We reverse and remand.

Charges in this case stem from the execution of a search warrant at appellant’s residence on January 9, 1988. At the time, appellant and his girlfriend lived in an apartment at 1216 Walnut Street. During the two-day period prior to execution of the warrant, Harrisburg City Police allegedly made a controlled purchase of marijuana from their apartment. The controlled purchase was made by a confidential informant out of the sight of surveilling vice officers. The surveilling officers were not able to see which apartment the informant entered.

On the basis of the controlled buy, police obtained a séarch warrant. An affidavit supporting the search warrant stated that the suspect involved in the controlled purchase was five feet, ten inches tall and weighed 160 pounds. Appellant is six feet, two inches tall and weighs 210 pounds. The defense sought to learn the informant’s identity but that request was denied. The informant did not testify at trial, although some evidence of the controlled buy was admitted over defense objection.

A search of appellant’s apartment yielded five and three-tenths grams of marijuana, a pipe, two scales, one of which was broken, plastic sandwich bags, cigarette rolling papers, and eighty-six dollars in cash. When the cash, which was found in a dresser drawer, was taken back to headquarters, police testified that they found the ten-dollar bill alleged to have been used in the controlled buy. Based on the seizure, an arrest warrant was issued for the above-mentioned charges.

Appellant turned himself into the Harrisburg Police Station on January 11, 1988. Appellant was arrested by Detective Holland, who read appellant his constitutional rights. Another detective, Arnold, later re-read appellant his rights. Appellant was asked if he understood his rights and he responded positively. However, he was never asked to waive his rights. Appellant never signed a written waiver form.

Appellant was then taken into a room for questioning. Police officers testified that he stated that he did not sell drugs as a business but would occasionally break up a $20.00 bag of marijuana into $5.00 bags and sell them to his friends.

The first issue we shall discuss is whether the trial court erred in allowing certain expert testimony in response to a hypothetical question which assumed facts not properly in evidence. During the trial, the Commonwealth called Detective Holland to testify as to whether, in his expert opinion, the marijuana found in the apartment was possessed by appellant with intent to deliver. Part of the hypothetical question posed to the expert asked him to assume that a controlled buy had taken place within forty-eight hours of the execution of the search warrant:

In this particular case assuming that there had been controlled buy from this residence within 48 hours of the execution of the search warrant, that a $10 bill, controlled buy money, was recovered from one of the rooms in the apartment, that packaging materials as well as scales, at least two different scales were recovered, are you able to form an opinion in this case as to whether or not the marijuana seized, and I’m speaking specifically with respect to the marijuana seized in the storage room, not the roaches, whether or not that was possessed with the intent to distribute?

(N.T., at 128).

It was error for the trial court to permit the hypothetical question to Detective Holland. It is axiomatic under Pennsylvania law that a hypothetical question to an expert witness must be based upon facts known to the witness or facts in evidence in the case. E.g., Bolus v. United Penn Bank, 363 Pa.Super. 247, 525 A.2d 1215 (1987) (hypothetical questions must be based on matters which appear of record or on facts which are warranted by the evidence).

Evidence of the controlled buy had not yet been placed in evidence at the time that the question to Detective Holland was asked. The Commonwealth sought to cure this defect by placing into evidence testimony concerning the controlled buy later in the case. At best, the Commonwealth’s controlled buy evidence indicated only that an unnamed informant was given a sum of money, including a ten-dollar with a recorded serial number, that the informant entered the multi-unit building in which appellant resided, and that he thereafter returned with some marijuana.

The only possible relevance of the controlled buy evidence to the charge against appellant was if the controlled buy was made under circumstances which implicated appellant in the transaction. However, the only record evidence, albeit hearsay, is that the informant made his purchase from an individual who was five feet, ten inches in height and weighed 160 pounds. Appellant, who took the stand, is six feet, two inches tall and weighs 210 pounds. Moreover, the surveilling officers could not see what portion of the building the informant entered to purchase the marijuana and, of course, totally lacking is any admissible evidence as to the identification of the person from whom the purchase was made.

Although there is some evidence that the ten dollar bill with the recorded serial number was recovered in the search of appellant’s apartment, this evidence also fails to implicate appellant because it does not prove who had custody of the bill or who placed it in the apartment. It is undisputed that appellant was not the sole tenant of the apartment, but lived there with his girlfriend.

It is abundantly clear the the court should have sustained an objection to the hypothetical question which was central to the Commonwealth’s conviction in this case. We note that although appellant objected to the question primarily on other grounds, appellant also lodged a secondary objection that the question assumed facts not in evidence and he raised that issue in his brief. Thus, the issue was properly preserved.

Even if we were to find that the hypothetical question was proper because the Commonwealth later introduced evidence of the controlled buy, we feel that usage of the controlled buy as evidence of appellant’s intent was nonetheless improper under the circumstances of this case. The informant did not testify; the evidence shows only that a marijuana purchase may have taken place in appellant’s apartment but not that it involved appellant himself.

The trial court found that evidence of the controlled buy was admissible to show that appellant had sold marijuana in the past and the jury could therefore infer that he intended to distribute the marijuana he was charged with possessing. It is true that evidence of other criminal acts, which are irrelevant if offered to show the bad character of the defendant, may be introduced as evidence of intent to commit the crime charged. Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989).

Appellant argues, however, that even if evidence of the controlled buy as an uncharged criminal act could have been offered for the purpose of showing intent, the uncharged act must nonetheless be prima facie established by competent proof in order to be admissible. Properly framed, the issue is not whether the controlled buy evidence was introduced for a proper purpose, but whether there was a sufficient quantum of proof linking appellant with the uncharged criminal act so as to make it relevant to the question of appellant’s intent.

Appellant’s brief cites Commonwealth v. Petrillo, 338 Pa. 65, 12 A.2d 317 (1940), wherein our supreme court said:

If evidence of other crimes is admitted to support a charge of murder, such evidence ... must “amount to proof” of that other crime and there must be “ground to believe that the crime charged grew out of it.” Mere suspicion of the commission of another crime will not do.

12 A.2d at 323 (emphasis in original, citations omitted). Appellant also cites Commonwealth v. Hude, 256 Pa.Super. 439, 390 A.2d 183 (1978), for the proposition that if proof of another crime is tenuous, the court should not admit evidence of the extrinsic act.

In Hude, supra, the supreme court reiterated the general prohibition against introducing other crimes evidence against a criminal defendant, noting that the fact that a person has committed one offense is not proof that he has committed another and because the effect of such testimony upon a jury is nevertheless bound to create prejudice and an emotional reaction on their part against the defendant. Hude, citing Commonwealth v. Bradley, 243 Pa.Super. 208, 364 A.2d 944 (1976). One exception is the introduction of other crimes evidence to show that defendant possessed the requisite intent for the crime charged. Billa and Hude, supra. In Hude, the supreme court found that even if an exception exists, however, that does not end the inquiry as to whether the other crimes evidence is admissible.

To keep sight of the underlying policy of protecting the accused of unfair prejudice, courts must balance the actual need for the other crimes evidence in the light of the issues, the evidence available to the prosecution, the convincingness of the evidence that other crimes were committed and that the accused was the actor, the strength or weakness of the other crimes evidence in supporting the issue, and the degree to which the jury will probably be roused by the evidence to over-mastering hostility. Hude, supra. In the instant case, the trial court failed to engage in this balancing test to determine if the evidence was sufficiently necessary and reliable.

The prosecution was in actual need of the evidence of the controlled buy to show intent, as the quantity of marijuana found in appellant’s apartment might not have permitted a reasonable inference of intent to deliver. See, Commonwealth v. Bagley, 296 Pa.Super. 43, 442 A.2d 287 (1982) (reviewing other cases). No other independent evidence of intent to deliver was available to prove this element of the crime.

On the other hand, evidence that appellant himself had sold the informant marijuana was simply not convincing. Police did not even see which apartment the informant entered. The informant gave a description of the suspect which in no way fit appellant’s physical characteristics. A police officer testified that the controlled buy ten dollar bill, identified by serial number, was found in the apartment, but police did not list the bill as part of their inventory of the contents seized. Police did not even have a record of having matched the serial numbers when they went through the evidence back at the police station. Most importantly, appellant was not the only individual who lived in the apartment and had access to it; even if the ten dollar bill were found on the premises, it does not prove that appellant was the individual who sold the informant marijuana. That the controlled buy evidence against appellant was weak is moreover demonstrated by the Commonwealth’s failure to seek a conviction or even an arrest of appellant on the charge of selling the marijuana that the informant supposedly bought. E.g., Hude, 390 A.2d at 186 (in which the same factor was considered).

Appellant’s intent to deliver was a major issue in this case; appellant himself admitted on the stand that he possessed the marijuana, albeit for personal use. Other evidence in the case pointed only to simple possession. Given that there was virtually nothing to link appellant to the controlled buy, this evidence was highly prejudicial and its admission constituted reversible error.

Appellant also asserts that Miranda warnings were inadequate and that he never explicitly waived his rights, as is required by Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979). Because this issue may arise in the course of a new trial, we will address it. The trial court incorrectly found that “trial counsel failed to raise the former part of this issue at the suppression hearing. Counsel did raise this issue in pre-trial motions and during the suppression hearing and we find that it was properly preserved for our review.

We are satisfied that appellant was given the proper Miranda warnings. However, there remains an issue as to whether appellant explicitly waived his rights.

In Commonwealth v. Bussey, supra, our Supreme Court rejected the implicit waiver rule of North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) and held that, as a matter of state law, the Commonwealth must show that the accused explicitly waived his Miranda rights in order for self-incriminating statements made in the course of custodial interrogation to be admissible. The Bussey court rejected the Butler formulation which permitted. a finding of waiver when the accused expresses an understanding of his Miranda rights and proceeds to give a statement.

The trial court and the Commonwealth both rely, of necessity, on Commonwealth v. Speaks, 351 Pa.Super. 149, 505 A.2d 310 (1986) to show that appellant waived his rights. In Commonwealth v. Speaks, supra, this court applied Bussey to a situation where the accused was fully and adequately advised of his rights, explicitly manifested an understanding of those rights and answered a question posed to him immediately afterwards and within the course of the same dialogue. In that case, this court found that immediate, virtually contemporaneous response to questions following a manifestation that one understands one’s rights suffices as an explicit waiver. The court also found that even if it were incorrect in its interpretation of Bussey, the error was harmless because the accused merely told police where on the premises contraband was located. Police already had a search warrant and undoubtedly would have uncovered the incriminating evidence on their own.

Because Washington did not explicitly waive his rights, we must look to the circumstances of the arrest, as found by the lower court, to see whether he was advised of his rights and manifested an understanding of his rights immediately before he began answering questions. See, Speaks, supra.

The trial court adopted the Commonwealth’s version of events relating to appellant’s arrest and statement. Appellant appeared at the police station and was initially arrested by Detective Holland, who read him his rights. Detective Arnold, the investigating officer, was called to the booking desk and he arrived ten minutes later. Detective Arnold then re-read the arrest warrant and read appellant his rights. Afterwards, appellant was taken into a room referred to as the DUI room and was asked questions to which police testified that he gave incriminating responses. There was no signed statement taken.

Part of the Speaks rationale for not requiring the accused to state explicitly that he waives his rights is that the accused makes his incriminating statement within the course of the same dialogue in which he claims to have understood his rights. The Speaks court’s use of the word “immediately” is very precise. It means within a second or two of having manifested an understanding of one’s rights. From the trial court’s synopsis of events in the instant case, it is unclear whether appellant expressed an understanding of his rights and began answering question immediately and within the same dialogue. If appellant was moved from one room to another in between saying that he understood his rights and beginning to answer questions, this would militate against a finding that Speaks is applicable to the facts of this case.

In light of our remand, we need not discuss the other issues raised in appellant’s brief.

Reversed and remanded for a new trial.

WIEAND, J., dissents.

      . This phraseology is used in the appellate briefs and in the lower court opinion and refers to a drug purchase made by an informant under circumstances controlled by law enforcement authorities.

      . As to this issue, appellant also asserts that the admission of uncharged criminal conduct denied him his right to confront his accuser.

      . The Commonwealth counters appellant’s argument by stating that evidence of the controlled buy was not introduced as evidence of a prior crime or bad act of appellant but only to show that a sale of marijuana took place on the premises. If that were the case, the evidence certainly would have been irrelevant; it would not have been probative of intent if it was not supposed to implicate appellant himself.