author: BECK, Judge: TAMILIA, Judge,

text:
    486 A.2d 504
    COMMONWEALTH of Pennsylvania v. Thomas BODEN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 20, 1984.
    Filed Dec. 21, 1984.
    Petition for Allowance of Appeal Granted Aug. 12, 1985.

      John M. Gallagher, Media, for appellant.
    Dennis C. McAndrews, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BECK and TAMI-LIA, JJ.
   BECK, Judge:

Appellant police officer was found guilty of Involuntary Manslaughter by a jury. He subsequently filed post-verdict motions in arrest of judgment and for a new trial which were denied. A timely appeal was filed. For the reasons discussed below, we affirm the judgment of sentence.

Appellant police officer responded to a radio report that a man (the victim) was chasing children with an axe. The victim, Marne Toogood, met the appellant and two other police officers at the door of his home when he responded to their knock. Toogood pushed one of the officers back, grabbed an axe handle, and demanded the officers leave his property. The officers backed up to the sidewalk, and told the victim to drop the axe handle. The victim refused, and appellant drew his service revolver. The victim still refused to drop the handle, and appellant fired one warning shot into the air. Appellant then shot the victim in his lower lip, and the victim dropped to the ground.

One of the officers kicked the axe handle out of the victim’s reach. Appellant fired a third shot which hit the victim in his chest, killing him. Testimony conflicts as to whether the victim was on the ground or in the process of getting up from the ground when appellant fired the third and fatal shot.

Appellant contends that the trial court erred in failing to instruct the jury that as a police officer making an arrest appellant was not under a duty to retreat from the victim. The lower court characterized appellant’s actions before the shooting as an investigatory stop and not as an arrest or an attempt to arrest. The court therefore concluded it did not have to instruct the jury that appellant did not have a duty to retreat.

Although we disagree with the lower court’s finding that no arrest or attempt to arrest occurred, we affirm the judgment.

We conclude that appellant’s action constituted an arrest. The victim’s behavior against the officers amounted to a prima facie case of simple assault, a misdemeanor of the second class, 18 Pa.C.S. § 2701(a) & (b). A police officer may make a warrantless arrest for a misdemeanor he has witnessed. Commonwealth v. Ellis, 233 Pa.Super. 169, 335 A.2d 512 (1975); Commonwealth v. Calvarese, 199 Pa.Super. 319, 185 A.2d 657 (1962). No magic words or acts are required to effectuate an arrest. “An arrest may be accomplished by ‘any act that indicates an intention to take [a person] into custody and that subjects him to the actual control and will of the person making the arrest.’ ” Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311, cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963), quoting 5 Am.Jur.2d, Arrest, § 1; see Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979).

When an arrest occurs is a fact dependent on an evaluation of the surrounding circumstances. Commonwealth v. Crissy, 304 Pa.Super. 38, 450 A.2d 89 (1982). Looking at the surrounding circumstances in the case sub judice, we conclude that appellant and his fellow officers were in the process of arresting the victim. Appellant had his gun drawn on the victim whose actions constituted simple assault. The victim’s freedom was curtailed and the officers’ conduct reflected an intention to take the victim into custody.

The central question in the case was whether appellant reasonably believed that deadly force was necessary to prevent death or serious bodily injury. The judge’s instructions were focused on and invited the jury to concentrate on this question. To instruct the jury on the spectrum of law inapplicable to the appellant would be unnecessary, irrelevant and confusing to the jury. A court owes a duty to the jury not to confuse it with irrelevant instructions. Commonwealth v. Kwatkoski, 267 Pa.Super. 401, 406 A.2d 1102 (1979); see Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983) (manslaughter charge only necessary where the offense is an issue in the case, and the trial evidence would reasonably support such a verdict); Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980); Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969) (failure to instruct jury that defendant under no duty to retreat was not error where facts made such a charge inapplicable).

The record reveals that the appellant did not pursue the question of retreat at trial. The Commonwealth touched fleetingly on the question in one instance. Retreat was simply not part of the case.

Appellant also claims that the jury arrived at its verdict by compromise, and cites a newspaper report containing postverdict interviews with jurors. However, a juror is incompetent to testify as to what transpired in the jury room, and may not impeach the verdict after the jury has been discharged. Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63 (1978); see Commonwealth v. Williams, 279 Pa.Super. 28, 420 A.2d 727 (1980); Commonwealth v. Spencer, 259 Pa.Super. 415, 393 A.2d 895 (1978). The only exception to this rule applies when there have been extraneous influences on the jury deliberation process, an exception inapplicable to the instant facts. Appellant’s contention is without merit.

Accordingly, the judgment of sentence is affirmed.

SPAETH, President Judge, concurred in the result.

TAMILIA, J., filed dissenting opinion.

TAMILIA, Judge,

dissenting:

The majority has determined that the duty to retreat under the circumstances of this case was not relevant. I do not believe this is the issue presented by appellant. The majority would adopt a view of the facts that under any circumstance, the officer had no right to use deadly force. The failure of the lower court to instruct on the duty of a police officer to retreat or desist from efforts to make a lawful arrest is exacerbated by the court’s determination that the officer’s actions were not pursuant to a lawful arrest. The majority acknowledges the latter was error on the part of the lower court. If the lower court had concluded that the officer was engaged in a lawful arrest, it is obvious that the officer’s duty to retreat or desist becomes a relevant issue under 18 Pa.C.S.A. § 508(a) — Peace officer’s use of force in making arrest. Since the Commonwealth has the burden of disproving justification beyond a reasonable doubt, Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975); Commonwealth v. Zenyuh, 307 Pa.Super. 253, 453 A.2d 338 (1982); Commonwealth v. Rittle, 285 Pa.Super. 522, 428 A.2d 168 (1981) (Commonwealth must prove beyond a reasonable doubt that defendant was not acting in self-defense) and that the defendant did not reasonably believe the use of deadly force was necessary, the court’s initial error precluded a determination in the first instance by the court as to whether the Commonwealth met its burden and perhaps thereafter, by the jury after an appropriate instruction. If a jury could have found that the deceased was actively engaged in life-threatening behavior with a deadly weapon, and despite actions by the police to halt his advance under circumstances present at that time including the officer’s reasonable beliefs about the alleged voodoo power of the deceased as he made movements which could be construed to be a continued advance, then a jury could find the police officer was entitled to take additional forceful action. Clearly, the issue of justification in this Commonwealth, when properly raised, is a factual one which must be resolved by the fact finder. Commonwealth v. Berrigan, 325 Pa.Super. 242, 472 A.2d 1099 (1984) (citations omitted). By erroneously holding that the arrest was not a legal arrest, the court denied the defendant an opportunity to have the jury consider the legal implications of that defense and to pass on the facts proposed by the defendant to establish his state of mind and the reasonableness of his actions. Under similar situations, a civilian would be required to retreat or desist if he could do so with safety, whereas a police officer was not. The court’s failure to charge was even more prejudicial to the defendant as the District Attorney, in his brief, acknowledged that the Commonwealth did not attempt to overcome the appellant’s claim of self-defense as it applied to the duty to retreat or desist. By not attempting to disprove the officer’s right to self-defense as to those elements, the District Attorney apparently believes he can control the defense’s theory of the case by making it a non-issue. The Commonwealth’s duty is to disprove beyond a reasonable doubt all elements of the defendant’s claim of justification, not only those he considers relevant. See Rittle, Cropper, supra. The appellant has the right to a charge on justification to the fullest extent permitted by law, not to be controlled by the Commonwealth’s theory, and as Berrigan, supra teaches, not to be limited by the court’s or the Commonwealth’s interpretation of the facts, but those proposed by the defendant and considered by the jury as it is guided by the relevant law. We can only guess as to what a jury would have done if given the requested instruction. For this reason, I would reverse and remand for a new trial.

      . "It is well established that an appellate court may affirm the action of a lower court on a different rationale than that advanced by the lower court in support of its Order, Decree or Judgment." Commonwealth ex rel. Wardrop v. Warden, 237 Pa.Super. 502, 504, 352 A.2d 88, 89 (1975); Commonwealth v. Meischke, 273 Pa.Super. 134, 416 A.2d 1126 (1979).

      . On cross-examination of appellant the Commonwealth indirectly raised the question of retreat as follows:
      Q. Okay. So for the third shot, if his head is here where the blood spot has been marked, it would be at least another six feet back further; correct?
      A. Roughly, yes, sir.
      Q. And this is a vacant lot here? (Indicating) Vacant lot?
      A. Yes, sir.
      Q. So if you wanted to, there was nothing behind you here which would have prevented you from retreating even further; is that right?
      A. Yes.
      N.T. 10/7/81 at 89.
      In five volumes of transcript containing 540 pages, the above reference is the only one relating to the duty to retreat. Given the undisputed testimony that the victim’s weapon had been dropped and kicked out of his reach when the fatal shot was fired by appellant, the fact that the appellant did not have a duty to retreat is irrelevant.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    486 A.2d 507
    GRANT R. WRIGHT, INC., Appellant, v. HAWORTH ENERGY RESOURCES, INC. and Carl W. Householder.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1984.
    Filed Dec. 21, 1984.

      George H. Hancher, Zelienople, for appellant.
    Thomas W. King, III, Butler, for appellees.
    Before BROSKY, TAMILIA and ROBERTS, JJ.
   TAMILIA, Judge:

This is an appeal from an order granting appellee’s demurrer to Count 2 of appellant’s complaint in assumpsit and thereby dismissing with prejudice the allegation of personal liability against appellee, Carl Householder. Householder is the president of Haworth Corporation, the joint appellee, and the holder of 52% of its stock. Haworth Corporation is a seller of coal, appellant a supplier. The dispute centers around deliveries to Lockport Paperboard Corporation for which appellant claims a debt owing from appellees of $36,800. The complaint in assumpsit underlying this action contains two counts, of which only the second concerns us. It includes the following averment: “The defendant, Carl W. Householder’s corporation acted as agent or broker for Lockport Paperboard Corporation of Lockport, New York, in the acquisition of coal.” The complaint further states that said Householder agreed orally to be personally liable for future coal shipments to Lockport and for Haworth’s present obligations; being aware of Lockport’s financial difficulties, appellant would ship no more coal there except upon Householder’s personal credit.

Appellee has argued, and the lower court found that this action constitutes an oral promise to pay the debt of another, that is a suretyship contract, and is, therefore, unenforceable under the Statute of Frauds, 33 Pa.C.S.A. § 3. We disagree, although conditionally.

Initially, the court’s Opinion takes notice of appellant’s admission that the characterization of Householder as an agent or broker of the disclosed principal is a mistake, and relies for its disposition of the case on Montgomery v. Levy, 406 Pa. 547, 177 A.2d 448 (1967), which holds that the agent of a disclosed principal is not liable for damages caused by breach of the contract of the principal, with certain exceptions. (Slip Opinion at 1.) One exception is the agent’s specific agreement to assume liability. Vernon D. Cox & Co., Inc., v. Giles, 267 Pa.Super. 411, 406 A.2d 1107 (1979). The question which then remains is whether the agreement must be written, resolution of which in the instant case is yet to be reached.

We begin our analysis by noting that the Statute of Frauds provision requiring a promise to pay the debt of another to be in writing is non-waivable. Blumer v. Dorfman, 447 Pa. 131, 289 A.2d 463 (1972). This affects the instant case in that the appropriate manner of raising the Statute depends upon its “waivability.” Here, the proper procedure was followed by appellee’s filing preliminary objections in the nature of a demurrer. Id. citing Brown v. Hahn, 419 Pa. 42, 213 A.2d 342 (1965). But, however proper the procedure, here as in Blumer the court’s response was inappropriate since “judgment on the pleadings should be allowed only where the case is free from doubt and trial would be a fruitless exercise.” Id., 447 Pa. at 139, 289 A.2d 467. As Blumer also points out, “As with a demurrer all the opposing party’s well pleaded facts must be accepted as true.” Id. (citations omitted). The salient fact in this case is that appellee has been a 52% shareholder in, and president of, Haworth Energy Resources, Inc., since its inception in 1977. The record, through deposition, also reveals that the business is a closely held corporation with three shareholders, appellee, his son, and an S.N. Haworth, from whom presumably the company takes its name. There is no information as to the identity of the third person, or as to the number of shares held by Haworth or appellee’s son, respectively.

Appellant cites Eastern Wood Products Company v. Metz, 370 Pa. 636, 89 A.2d 327 (1952), for the proposition that an agreement by the defendant, sole shareholder and principal officer of a company, promising to pay future and current obligations of his company to prevent involuntary bankruptcy proceedings from being filed against it by the plaintiff corporation and to insure future deliveries, was not a suretyship contract. It was found instead to be a contract for the benefit of the promisor and, therefore, an exception to the Statute of Frauds.

In response appellee cites Acme Equipment Company v. Allegheny Steel Corporation, 207 Pa.Super. 436, 217 A.2d 791 (1966), in which we held that the promise of the president of the defendant corporation, a 25% shareholder, was within the Statute and, therefore, void. The distinction was based on the difference in the amount of interest held by the promisors, 100% versus 25%, the latter proving insufficient to “establish that the promise was made by [the officer] for the main purpose of serving a pecuniary or business purpose of his own.” Id., 207 Pa.Super. at 439, 217 A.2d at 792. We feel that the amount of appellee Householder’s financial interest in the Haworth Corporation, coupled with that of his son, requires the further elucidation of the circumstances in this case.

It is entirely possible that no exception to the Statute can be shown from evidence adduced at trial, but we hold, as did the Pennsylvania Supreme Court in Blumer, that the defense of the Statute, without more, should not have been made the basis for a judgment on the pleadings. Id., 447 Pa. at 138, 289 A.2d 468. Accordingly, we reverse the Order of the lower court and remand for further proceedings consistent with this Opinion.

      . We note that although appellant’s Preliminary Objections to this cause of action contains a request for a more specific complaint, there has been no denial that the agreement was in fact made.

      . It should be noted that this case would involve further proceedings even without our disposition, as appellee’s demurrer to Count 1 of the complaint was denied by the trial court. Since we regard the counts of this complaint as representing separate causes of action, the defendants differing in each, the general rule regarding the interlocutory nature of an order dismissing only some of a multi-count complaint, Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983), is inapplicable.


author:
CERCONE, Judge:
      McEWEN, Judge,

text:
    486 A.2d 510
    William HAMRE and John J. Reilly trading as R & H Associates, Appellants, v. Stanley RESNICK and Jean Farnan and FSI Financial Group, Inc.
    Superior Court of Pennsylvania.
    Argued April 25, 1984.
    Filed Dec. 21, 1984.

      Joseph C. Honer, Jr., Aston, for appellants.
    Shelly G. Farber, Media, for appellees.
    Before McEWEN, BECK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the order of the lower court sustaining appellee Farnan’s and FSI Financial Group’s preliminary objections and dismissing appellants’ complaint on the basis of lack of venue. Our review of the record persuades us that it is deficient and compels us to remand for further proceedings on the authority of Pa.R.C.P. 1028(c).

This case was initiated by the filing of a complaint in assumpsit on April 2, 1982. Appellants alleged that FSI Financial Group, Inc., breached its obligation to pay a debt at maturity in the amount of $42,333.00 plus interest. Jean Farnan and Stanley Resnick were named as guarantors of that debt. Following preliminary objections of Jean Farnan and FSI Financial Group, Inc., appellants filed an amended complaint which altered the caption of the complaint in conformity with Pa.R.C.P. 2127(a). The amended complaint was filed on August 13, 1982. Farnan and FSI again filed preliminary objections which alleged, in relevant part, that appellants’ complaint should be dismissed for improper venue. They averred that appellants’ exhibits were not signed in Pennsylvania, that neither of them transacted any business in Pennsylvania with plaintiffs, but, if they did, it was in Virginia, and that no actions involving Farnan and FSI occurred in Delaware County, Pennsylvania.

Appellants’ amended complaint stated that on the 4th day of April 1979, in the County of Delaware, State of Pennsylvania, that FSI, the principal debtor, was indebted to appellants. In addition, appellants responded in their Answer to the Preliminary Objections that the exhibits appended to the amended complaint were indeed signed in Delaware County, and that all contract negotiations, the contract itself, offer, acceptance and executed signatures were all undertaken in Delaware County.

Nowhere in the record is it indicated that interrogatories were filed, depositions were taken, or a hearing was conducted on the issue of the locus of the significant events in this case. In its opinion, the court writes that it based its decision of improper venue on “the record in this case and the briefs submitted by respective counsel...” From our reading of the record, we conclude that the court relied only on the pleadings as the “record”.

This procedure is correct in many cases. In Matter of D.L.S. and J.L.S., 278 Pa.Superior Ct. 446, 420 A.2d 625 (1980), this court affirmed the lower court’s dismissal of the mother’s preliminary objections challenging the jurisdiction of Pennsylvania courts over a custody action. In doing so, our court found that no factual issues were raised which necessitated the reception of evidence. It was uncontro-verted from the record that the mother and two children had moved to Florida just three and one-half weeks prior to the institution of the action and that both parents and children retained a significant connection with Pennsylvania.

On the other hand, in Luria v. Luria, 220 Pa.Superior Ct. 168, 286 A.2d 922 (1971), this court remanded for further proceedings in a situation in which the preliminary objections asserted lack of jurisdiction. In its answer, appellee countered that appellant had certain contacts which rendered it amenable to suit in this state. In an argument on the preliminary objections, appellants’ counsel promised to prove its allegations of lack of jurisdiction if given the opportunity to take depositions. Our court, in light of Pa.R.C.P. 1028(c), found fault with the lower court’s decision sans depositions.

"... [i]t is sufficient for our purpose to note that the lower court’s order was based upon its view of controverted facts____ Before such factual determination was made, however, the lower court should have ordered the taking of depositions on the filing of interrogatories or both.” Id., 220 Pa.Superior Ct. at 170, 286 A.2d at 923.

See also, Alumbaugh v. Wallace, 226 Pa.Superior Ct. 511, 313 A.2d 281 (1973).

We find the instant case to be akin to the situations in which factual determinations are made on an inadequate record. Appellees argue that appellants had an opportunity to allege the existence of proper contacts for purposes of venue when they filed the amended complaint. Appellees appear to be arguing that such an omission is tantamount to an admission on appellants’ part of the soundness of appellees’ position. However, we decline to adopt that interpretation, especially since appellants did allege that the principal debtor incurred its debts in Delaware County, Pennsylvania, and in their answer to the preliminary objections, steadfastly maintained that sufficient contacts exist to warrant venue as proper where it is. Thus, we conclude that evidence should be taken in this case either by depositions or otherwise in order to provide the lower court with a basis upon which to rest a decision on venue, and to afford us a background from which to conduct our review of such a decision.

Order vacated and case remanded for proceedings consistent with this opinion.

Jurisdiction is relinquished.

McEWEN, J., filed a dissenting statement.

McEWEN, Judge,

dissenting:

The majority has expressed its conclusion in a most careful and persuasive fashion but I am, nonetheless, compelled to dissent. A plaintiff may establish jurisdiction and venue in quite simple fashion. The initial complaint of appellants did not do so. Nor, despite quite apt preliminary objections to the original complaint, did the amended complaint do so. I would, therefore, affirm the order of the learned Judge Joseph T. Labrum, Jr.

      . Pa.R.C.P. 2078 and 2179 provide that actions against nonresidents and corporation may be brought in a county where, inter alia, a cause of action arose. It is on this theory that appellants posit their venue argument.

      . A party may file an amended pleading as of course within ten (10) days after service of a copy of preliminary objections. The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise.

      . Defendant Stanley Resnick did not file an answer to the complaint and default judgment was entered against him on September 28, 1982.


author: HESTER, Judge:

text:
    486 A.2d 512
    John TONKOVIC, III v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1984.
    Filed Dec. 21, 1984.
    Petition for Allowance of Appeal Granted Jan. 16, 1985.

      Richard H. Wix, Harrisburg, for appellant.
    R.C. Angino, Harrisburg, for appellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   HESTER, Judge:

In Standard Venetian Blind v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983), the Supreme Court held that an insured cannot avoid the application of clear and unambiguous policy limitations contained in an insurance contract by alleging an unawareness of the exclusion and its effect. In the case at bar, appellant contends that the retroactive application of Standard Venetian Blind warrants a grant of a judgment n.o.v. or a new trial. For the reasons that follow, we hereby reverse and remand for a new trial.

It is undisputed that appellee applied for a policy providing disability insurance coverage offered by appellant on July of 1979. The policy which was ultimately issued excluded coverage of any injuries which were also compen-sable under a plan of Workmen’s Compensation. Appellee was injured on the job on October 15, 1979, and received Workmen’s Compensation benefits. In accordance with the exclusion for coverage under the terms of the disability insurance policy, appellant denied appellee’s application for disability benefits.

Appellee subsequently instituted an action in assumpsit to recover benefits claimed pursuant to his policy. Following a jury trial, the verdict was returned in favor of appellee. Appellant filed a timely motion for judgment n.o.v. and a motion for a new trial, which were denied by Order of Court dated September 20, 1983. This appeal ensued.

Based upon the concededly clear and unambiguous language of the exclusionary clause, appellant argues that its motion for judgment n.o.v. should be granted in light of the Supreme Court’s decision in Standard Venetian Blind Co. Alternatively, appellant submits that a new trial is warranted so that the jury can be charged with a correct instruction of the law as enunciated in that case.

Prior to the pronouncement of Standard Venetian Blind, the prevailing rule of law concerning the enforceability of exclusionary provisions in insurance policies was found in Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 327 A.2d 363 (1974). Therein, we held that it was the insurer’s burden to show that the insured was made aware of and understood an exclusion which the insurance company sought to enforce. The Supreme Court refused to adopt this rule, explaining:

[w]e hold only that where, as here, the policy limitation relied upon by the insurers to deny coverage is clearly worded and conspicuously displayed, the insured may not avoid the consequences of that limitation by proof that he failed to read the limitation or that he did not understand it.

Standard Venetian Blind v. American Empire Insurance Co., supra, 503 Pa. at 307, 469 A.2d at 567. However, this opinion was handed down on December 30, 1983, eleven months after the proceedings took place in the instant case. Consequently, the trial court, although apprised of the fact that this issue was pending before the Supreme Court, charged the jury pursuant to Hionis.

Initially, we note that Standard Venetian Blind unquestionably requires retroactive application. See Haegele v. Pennsylvania General Ins. Co., 330 Pa.Super. 481, 479 A.2d 1005 (1984); Votedian v. General Accident Fire & Life Assurance Corp., 330 Pa.Super. 13, 478 A.2d 1324 (1984); Harrison v. Aetna Life & Casualty, 326 Pa.Super. 116, 473 A.2d 636 (1984). To remove the burden of proving the insured’s awareness of the exclusion would, in fact, change the burden of proof substantially. Appellant would only have to prove that appellee received a copy of his policy containing the clear and unambiguous exclusionary language in order to prevail.

However, in the case presently before us, appellee argued that he never received a copy of his policy and presented substantial evidence to that effect. Appellant’s agent testified that he delivered a copy of the amended contract to appellee’s home on Potato Valley Road on August 23, 1979, and introduced a receipt signed by appellee on that date. However, appellant and his wife contradicted that evidence by testifying that they did not purchase that home or live in it until mid-September of 1979. Further, although appellee identified the signature as his own, he denied any recollection of signing the receipt or receiving a copy of that policy at that or any other time. Thus, appellee averred that he was never presented with the variation between the coverage for which he applied and that which was issued containing the exclusion.

In reviewing the denial of a motion for judgment n.o.v., we will reverse the lower court only when we find “an abuse of discretion or an error of law which controlled the outcome of the case.” McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982). The trial judge must accept as true all facts and proper inferences which tend to support the verdict winner, and reject all testimony and inferences to the contrary. Timbrook v. Foremost Ins. Co., 324 Pa.Super. 384, 387, 471 A.2d 891, 892 (1984). When no two reasonable minds can differ that, as a matter of law, the petitioner has failed to sustain his burden of proof, the motion must be granted. Thomas v. Allegheny & Eastern Coal Co., 309 Pa.Super. 333, 455 A.2d 637 (1982). “A judgment n.o.v. is an extreme remedy and should be entered only in a clear case after the evidence has been evaluated in the light most favorable to the verdict winner.” Beechwoods Flying Service Ins. v. Al Hamilton Contracting Corp., 317 Pa.Super. 513, 517, 464 A.2d 440, 442 (1983), aff'd. 504 Pa. 618, 470 A.2d 350 (1984). Likewise, the decision to grant or deny a motion for a new trial is within the discretion of the trial judge, and should only be reversed for an abuse of discretion. Id. See also Buck v. Scott Township, 325 Pa.Super. 148, 472 A.2d 691 (1984).

In this instance, we are constrained to remand for a new trial. Unfortunately, in the charge to the jury, the trial judge failed to clarify the two discrete issues raised herein, that is, whether appellee received a copy of the policy, and whether appellant proved that appellee was made aware of, and understood, the exclusionary language. The lower court merged these issues into the following question for the jury’s consideration:

Was this policy which was completed by the State Farm Insurance Company was it then presented to Mr. Tonko-vic, and was he, in this particular case, made aware, and did he understand that if he had workmen’s compensation then he was excluded from the disability benefits provided for in this policy.

It simply cannot be discerned from the general verdict in favor of appellee whether the jury determined that appellee never received the policy in question, or whether it held that appellant failed to sustain its burden of proof.

Consequently, we remand for a new trial. In cases such as this, where multiple issues are presented, the jury should be instructed to return specific findings on the issues involved. Of course, this time the jury must also be instructed pursuant to the law as enunciated in Standard Venetian Blind, supra.

Reversed and remanded for new trial. Jurisdiction is not retained.

WICKERSHAM, J., filed a dissenting statement.

WICKERSHAM, Judge, dissenting:

I would affirm.


author: PER CURIAM:

text:
    486 A.2d 515
    COMMONWEALTH of Pennsylvania v. Paul SHOEMAKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 5, 1982.
    Filed Dec. 21, 1984.
    Philip T. Medico, Jr., Assistant Public Defender, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   PER CURIAM:

The case at bar has been remanded to this Court for proceedings consistent with the Pennsylvania Supreme Court’s order in Commonwealth v. Shoemaker, 502 Pa. 573, 467 A.2d 819 (1983), vacating 303 Pa.Super. 242, 449 A.2d 669. The Supreme Court found that the trial court did not err by failing to impose a minimum sentence because appellant was sentenced pursuant to the “Youth Offenders Act,” Act of April 28, 1887, P.L. 63, § 6, 61 P.S. 485 (1964), “which specifically prohibits the imposition of a minimum period of incarceration.” Commonwealth v. Shoemaker, supra,, 502 Pa. at 574, 467 A.2d at 820.

Turning to appellant’s second assignment of error, he argues that the sentence imposed was excessive and without regard to the circumstances of the offenses or his character. We find no merit to this contention. Accordingly, the judgment of sentence imposed by the Court of Common Pleas of Luzerne County is hereby affirmed.

Judgment of sentence affirmed.


text:
    486 A.2d 515
    COMMONWEALTH of Pennsylvania, v. Herbert W. JOLLY, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 1, 1984.
    Filed Dec. 21, 1984.

      Thomas E. Kuhn, Erie, for appellant.
    Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   PER CURIAM:

Appellant Herbert W. Jolly was convicted of driving under the influence of alcohol and a variety of traffic violations as a result of an automobile accident. Following the denial of post-trial motions and sentencing, appellant filed this direct appeal only from the judgment of sentence on the charge of driving under the influence of alcohol. For the reasons that follow, we reverse the judgment of sentence.

The accident which gave rise to the instant charges took place on May 9, 1981, at 8:10 a.m. By the time the police arrived at the scene, appellant had already been taken to a local hospital. The investigating officer went to the hospital and interviewed appellant. Despite the fact that appellant was coherent at the time of the interview, the officer did not request that appellant submit to a breathalyzer or blood test pursuant to 75 Pa.C.S. § 1547. Instead the officer obtained a subpoena duces tecum from a district justice in order to obtain the results of a blood alcohol test performed by the hospital for medical purposes. Pursuant to the subpoena, the officer was given access to appellant’s medical records and obtained the results of the blood alcohol test. It was not until after he reviewed the results of this test that the officer filed the charge of driving under the influence.

Appellant contends that the results of the blood test should have been suppressed because they were obtained pursuant to an invalid subpoena. See, Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979). We agree. In Commonwealth v. Polak, 438 Pa. 67, 263 A.2d 354 (1970), our Supreme Court stated “[A] prerequisite to the issuance of a subpoena [is] that there be some pre-existing matter or cause pending before the court.” See also, Commonwealth v. Maguigan, 323 Pa.Super. 317, 470 A.2d 611 (1983).

The Commonwealth cites In re: the June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73 (1980) to support its argument that the procedure utilized in the instant case was proper. However, that case concerned subpoenas issued pursuant to the specific statutory authority of the Investigating Grand Jury Act, 42 Pa.C.S. § 4548 (formerly 19 P.S. § 271). We find no statutory authority which permits the procedure used here. Contrary to the Commonwealth’s argument, 28 Pa.Code § 115.-28 does not give such authority. That section provides that medical records may not be removed from the hospital premises “except for court purposes.” We cannot conclude, as the Commonwealth would have us do, that the term “court purposes” encompasses a situation where no case is yet before a court, as was true here.

Finally, the Commonwealth argues that the evidence should not be suppressed because it would have been discovered anyway in the course of the investigation. See, Commonwealth v. Brown, 470 Pa. 274, 368 A.2d 626 (1976). The determination of whether to suppress the test results in this case was not made after a testimonial hearing at which facts supporting that argument were presented. Rather, the parties stipulated to the facts surrounding the issuance of the subpoena and only that issue was before the court. Therefore, on this record, we are unable to resolve that argument in favor of the Commonwealth.

Judgment of sentence is reversed and case remanded for further proceedings. Jurisdiction relinquished.


text:
    486 A.2d 517
    In the Matter of the ADOPTION OF BABY BOY ALLEN, a Minor. Appeal of CATHOLIC SOCIAL SERVICES OF the DIOCESE OF HARRISBURG, PENNSYLVANIA, INC.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1984.
    Filed Dec. 21, 1984.
    Petition for Allowance of Appeal Granted May 20, 1985.

      John H. Bream, Harrisburg, for appellant.
    Robert D. Kodak, Harrisburg, for appellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   PER CURIAM:

Catholic Social Services appeals from the order of the Court of Common Pleas of Dauphin County denying its petition for the involuntary termination of the parental rights of Clinton “Sonny” Rouck to Baby Boy Allen.

Baby Boy Allen was born March 31, 1979 in York Hospital, York County, Pennsylvania. The child’s mother, Robin Jean Allen, has consented to the proposed adoption of the child. The appellee, Clinton “Sonny” Rouck, is the father of the child and is presently twenty-eight years old.

In 1978, Clinton Rouck was convicted of forcible rape and was sentenced to two to four years imprisonment. The child was conceived after Rouck’s conviction, but while he was out on bail pending appeal. He was incarcerated both at the time of the baby’s birth and at the time of the termination hearing in the lower court, which was held on July 23, 1981.

, On July 13, 1982, the lower court filed an opinion and decree nisi denying appellant Catholic Social Services’ petition for the termination of Rouck’s parental rights. Catholic Social Services filed exceptions to the decree nisi. These were denied and the decree nisi was made final on February 10, 1984. This timely appeal followed.

Catholic Social Services states the issue as follows:

Under the Adoption Act should the parental rights of the father of an illegitimate child be involuntarily terminated when the father is functionally illiterate, unable to read or write, since 1975 has been either imprisoned for forcible rape and other crimes or constantly on parole and welfare, living with a girl friend, has been provided with three attorneys, been brought to Harrisburg for a court hearing on this matter from Graterford Prison by two deputy sheriffs, all at taxpayers’ expense, has committed perjury in open court, has never attempted to make any inquiry concerning this child, or to make any contribution to the care, upkeep, medical or other expenses of the child, which has been in the home of approved adoption parents, all for a period of more than five years?

Brief for Petitioner-Appellant at 2.

A number of recent cases have discussed the standard of review applicable in involuntary termination cases.

An appellate court, in reviewing a termination order, must employ a broad, comprehensive review of the record, but is limited in its standard of review to a determination of whether “the trial court’s termination of [the respondent’s] parental rights is supported by competent evidence.” In re Adoption of James J., 332 Pa.Superior Ct. 486 at 490, 481 A.2d 892 at 894 (1984). Stated differently, unless the lower court has abused its discretion or committed an error of law, the order must stand. Furthermore, the burden of proof on the party seeking to terminate another’s parental rights is one of clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

In re: Involuntary Termination of Parental Rights Concerning the Minor Child: Baby Boy P., 333 Pa.Super. 462, 464, 482 A.2d 660, 661 (1984).

Instantly, the lower court found that appellee’s minimal education, illiteracy, and imprisonment were major roadblocks confronting him in his attempt to perform his parental duties. Given these factors, the court decided that appellee had done his utmost to locate the child and to show that he did not wish to relinquish his parental rights. We believe that the lower court abused its discretion in so finding.

This Court has recently taken the view that it is in the child’s best interest to require that a parent ‘exert himself to take and maintain a place of importance in the child’s life’ (Appeal of Diane B., supra, 456 Pa. [429] at 433, 321 A.2d [618] at 620, quoting In Re: Adoption of J R F, 27 Somerset L.J. 295 [298], 304-305 (Pa.C.P.1972). With this in mind, we have held that the parent has an affirmative duty to love, protect and support his child and to make an effort to maintain communication and association with that child. See Appeal of Diane B., supra; Jacono Adoption Case, 426 Pa. 98, 231 A.2d 295 (1967); and In Re: Adoption of J R F, supra. Since in all adoption proceedings the ultimate determination is based on an examination of the particular facts, our inquiry must turn to whether this appellant has performed his affirmative duties as fully as possible under his particular circumstances.

In re Adoption of McCray, 460 Pa. 210, 216, 331 A.2d 652, 655 (1975).

While we acknowledge that appellee’s performance of his parental duties was made more difficult by his illiteracy and his imprisonment, we are unable to agree with the lower court that appellee made full use of the resources available to him in his attempts to fulfill his responsibilities.

The record establishes the following factors in appellee’s favor: (1) When Mr. Kirk Reider from Catholic Social Services asked him to consent to the adoption of the child, appellee refused. (2) Upon his release from prison, appellee traveled to Red Lion in an unsuccessful attempt to locate the child’s mother. (3) Appellee testified that he enlisted the aid of a number of people to attempt to reach the child’s mother by telephone. (4) Appellee requested that his public defender contact Catholic Social Services about his child. The lower court found that these actions evidenced an intent on appellee’s part not to relinquish his parental rights.

We disagree. It is clear from the record that appellee was aware of the child’s existence for approximately two years prior to the termination hearing. In that time, appel-lee spent one day in Red Lion searching for the child’s mother. The only other efforts he made to contact her were a number of telephone calls placed by himself or others. Appellant testified that he was unable to locate her. We understand that appellee’s efforts were hindered by his imprisonment.

Nevertheless, we are not willing to completely toll a parent’s responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in [developing] a close relationship with the child. Where the parent does not exercise reasonable firmness ‘in declining to yield to obstacles,’ his other rights may be forfeited.

In re Adoption of McCray, supra, 460 Pa. at 216-17, 331 A.2d at 655. We are of the opinion that appellee’s few futile attempts to contact the child’s mother were insufficient efforts to perform his parental duties, even considering that he was imprisoned at the time.

Appellee was informed that the mother had consented to the adoption and that the child was in the custody of Catholic Social Services. The lower court felt that appel-lee’s illiteracy explained his attempts to locate the child through the mother rather than by contacting Catholic Social Services. We disagree. The record clearly indicates that appellee knew the child was in the custody of Catholic Social Services. In fact, he requested that his public defender contact Catholic Social Services on his behalf. Thus, appellee was aware of the proper means of discovering information about his child. Nevertheless, he made only a single attempt through his public defender to contact Catholic Social Services. This clearly indicates that appellee did not utilize the resources at his command to locate his child and to fulfill his parental responsibilities.

We recognize that the burden of proof on the party seeking termination of another’s parental rights is one of clear and convincing evidence. We find that Catholic Social Services met that burden in this case. The testimony of Kirk Reider established that, by his conduct continuing for a period of at least six (6) months, appellee Rouck evidenced a settled purpose of relinquishing parental claim to his child or had refused or failed to perform his parental duties. See Act of October 15, 1980, P.L. 934, No. 163, § 1, 23 Pa.C.S. § 2511(a)(1). In fact, appellee knew of the child’s existence for two years prior to the termination hearing and in that time, he contacted Catholic Social Services only once (through his public defender). Appellee has never seen the child; he has never attempted to communicate through the agency with the child or the child’s mother; and he has never sent any money or anything of value with reference to the support or maintenance of the child. Appellee’s testimony does not refute any of these facts. Rather, appellee attempted to explain why he was unable to fulfill his responsibilities. Even after considering the circumstances confronting appellee, we believe that his conduct was inadequate to refute the evidence presented by Catholic Social Services. See Matter of Adoption of J.S.H., 299 Pa.Super. 90, 97-98, 445 A.2d 162, 166 (1982).

We note that appellee’s insistence that he wanted to care for his child and did not wish to relinquish his parental rights does not in itself require denial of the termination petition. “Parental obligation is a positive duty which requires affirmative performance____ [T]he needs of the child whether physical and emotional, cannot be met by a merely passive interest in the development of the child.” In re Green, 486 Pa. 613, 617, 406 A.2d 1370, 1372 (1979) (citations and quotations omitted).

Since appellee did not utilize the resources at his command in order to affirmatively perform his parental duties, we are of the opinion that the lower court erred in refusing to terminate appellee’s parental rights. Appellant Catholic Social Services clearly and convincingly proved that appel-lee’s parental rights should be terminated.

Accordingly, the order of the lower court is vacated and the matter remanded with directions to enter a decree terminating appellee’s parental rights. Jurisdiction is relinquished.

WIEAND, J., concurred in the result.


text:
    486 A.2d 520
    LUU VAN VU and Tuyet Vu, husband and wife v. CLEARFIELD MACHINE COMPANY and S.R. Vanderbeck and S.R. Vanderbeck & Sons, Inc. and Jeffrey Manufacturing Co. and Empire Steel Castings, Inc. Appeal of CLEARFIELD MACHINE COMPANY.
    Superior Court of Pennsylvania.
    Submitted March 27, 1984.
    Filed Jan. 4, 1985.

      James M. Marsh, Philadelphia, for Clearfield, appellant.
    Stephen M. Feldman, Philadelphia, for Vu, appellees.
    Edwin L. Scherlis, Philadelphia, for Vanderbeck, appel-lees.
    Robert I. Cottom, Reading, for Jeffrey, appellee.
    William C. Steppacher, Dunmore, for Empire, appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   PER CURIAM:

The order dismissing the joinder of Empire Steel Castings, Inc., plaintiffs employer, as a party defendant is affirmed. Heckendorn v. Consolidated Rail Corp., 502 Pa. 101, 465 A.2d 609 (1983).

      . The constitutionality of Section 303 of the Workers’ Compensation Act was neither raised nor considered in the trial court and is not properly before this Court on appeal. It may be observed, however, that the constitutionality of this section was upheld by the Supreme Court in Tsarnas v. Jones & Laughlin Steel, 488 Pa. 513, 412 A.2d 1094 (1980). See also: Eisel v. U.S. Slicing Machine Co., 488 Pa. 192, 412 A.2d 138 (1980).


author: WIEAND, Judge:

text:
    486 A.2d 521
    COMMONWEALTH of Pennsylvania v. Edward GLESSNER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 8, 1984.
    Filed Jan. 4, 1985.
    Petition for Allowance of Appeal Denied July 2, 1985.

      Harold Diamond, Philadelphia, for appellant.
    Thomas R. Quinn, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

Edward Glessner, having been tried and convicted in Philadelphia Municipal Court for violations of the Uniform Firearms Act, appealed to the Court of Common Pleas. Upon trial de novo before the Honorable Stanley L. Ku-backi, sitting without a jury, Glessner was found guilty of having a fully loaded, unlicensed revolver in his possession on March 15,1981. Post-verdict motions were denied, and a sentence of two and one-half to five years imprisonment was imposed. On direct appeal, Glessner contends that: (1) his right to a speedy trial both in Municipal Court and in the Court of Common Pleas, as guaranteed by Pa.R.Crim.P. 6013, was violated; (2) the trial court erred in denying a motion to suppress the evidence seized at the time of appellant’s arrest; and (3) prior counsel rendered ineffective assistance. We find no merit in these contentions; and, accordingly, we affirm the judgment of sentence.

Glessner’s preliminary arraignment on the Municipal Court charges took place on March 16, 1981. Pursuant to Pa.R.Crim.P. 6013(a)(2), trial on these charges was required to be commenced within 120 days, i.e., on or before July 16, 1981. On April 2, 1981, Glessner collapsed during police interrogation and was committed to St. Luke’s Hospital, where he was found to be suffering from viral hepatitis. He remained hospitalized, under medication and paralyzed for much of the time, until October 30, 1981. On November 17, 1981, a hearing on defendant’s motion to suppress physical evidence was held and the motion denied; his trial in Municipal Court took place immediately thereafter.

Pursuant to Pa.R.Crim.P. 6013(d)(2)(i), the period of Glessner’s unavailability for trial must be excluded in computing the time for commencement of trial. Glessner was unavailable for a period of 197 days because he was hospitalized. See: Commonwealth v. Caden, 326 Pa.Super. 192, 201, 473 A.2d 1047, 1051 (1984) (defendants who are hospitalized when seriously ill are deemed unavailable for Rule 1100 purposes). Accord: Commonwealth v. Whitner, 278 Pa.Super. 175, 420 A.2d 486 (1980); Commonwealth v. Quinlan, 259 Pa.Super. 536, 393 A.2d 955 (1978). When the period of 197 days is excluded from the period preceding appellant’s trial on November 17, 1981, it is quite clear that appellant’s trial was held within the time constraints of Rule 6013. In view of the excludable time, it is unnecessary to review the court’s order of August 10, 1981, which granted an extension of time within which to commence trial.

After an appeal had been filed in the Court of Common Pleas, an order was entered on April 15, 1982 which extended the time of trial until May 13, 1982. This order was entered with the express agreement of defense counsel who told the court, in Glessner’s presence, that the Commonwealth’s request had been discussed and would not be opposed. Appellant, therefore, will not be heard to challenge the propriety of this extension order. See: Commonwealth v. Brown, 497 Pa. 7, 12, 438 A.2d 592, 595 (1981); Commonwealth v. Sutherland, 305 Pa.Super. 1, 6-7, 451 A.2d 1, 3 (1982).

The evidence showed that on March 15, 1981, at or about 9:25 p.m., two Philadelphia police officers who were on routine patrol in the 800 block of Rising Sun Avenue observed appellant lying on the front seat of a parked Chevrolet Nova. His head was under the dashboard, and his body was lying across the passenger’s side of the front seat. Officer Leo Jackson approached the passenger’s side of the parked car and asked appellant if the car belonged to him. Appellant said that it did, but he was unable to furnish any proof of ownership. Appellant was then asked to step out of the vehicle. When he did so, Jackson observed three live bullets on the floor of the driver’s side. Appellant was thereupon frisked; and a fully loaded revolver was found tucked in his waistband.

After a pre-trial motion to suppress this evidence had been heard in the Municipal Court, the Honorable Joseph R. Glancey held as follows:

THE COURT: I’m denying the motion. I think the officer has a right seeing the defendant lying under the dashboard on the driver’s side to ask at least “Is that your car”. When the defendant said he didn’t have a registration the officer had a right to ask him to step out of the car. Seeing the bullets, the rounds in plain view he had a right, at least had reasonable suspicion to perform a pat down.

This ruling was affirmed by Judge Kubacki of the Court of Common Pleas. We agree that the motion to suppress was properly denied.

Glessner had been observed by police at or about 9:25 p.m., in the dark of night, under the dashboard of a parked car in a business district of Philadelphia. Officer Jackson could reasonably approach Glessner and inquire as to the reason for his presence in the car. “ ‘There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.’ ” Commonwealth v. Jones, 474 Pa. 364, 370, 378 A.2d 835, 838 (1977), cert. denied, 435 U.S. 947, 98 S.Ct. 1533, 55 L.Ed.2d 546 (1978), quoting from Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889, 913 (1968) (White, J., concurring). “[A] policeman may approach a citizen on the streets in order to put himself in a position to address those questions to the citizen.” Commonwealth v. Hall, 475 Pa. 482, 488, 380 A.2d 1238, 1241-1242 (1977). See: United States v. Mendenhall, 446 U.S. 544, 553-554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 508-509 (1980) (plurality opinion); Commonwealth v. Williams, 287 Pa.Super. 19, 22-24, 429 A.2d 698, 700-701 (1981). Once Officer Jackson had determined that Glessner could not offer proof of his ownership of or rightful presence in the parked car, he could properly ask Glessner to get out of the car so that he could maintain the status quo and obtain more information. Adams v. Williams, 407 U.S. 143, 145-146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-617 (1972); Commonwealth v. O’Neal, 321 Pa.Super. 323, 325, 468 A.2d 500, 502 (1983); Commonwealth v. Brown, 243 Pa.Super. 285, 288, 365 A.2d 853, 855 (1976). See: Terry v. Ohio, supra; Commonwealth v. Hall, supra; Commonwealth v. Evans, 314 Pa.Super. 16, 460 A.2d 350 (1983); Commonwealth v. Woodard, 307 Pa.Super. 293, 453 A.2d 358 (1982). When Officer Jackson observed live bullets on the floor of the car, he could then conduct a patdown of Glessner’s person for his own safety. Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909; Commonwealth v. Sheridan, 292 Pa.Super. 278, 284-285, 437 A.2d 44, 46-47 (1981); Commonwealth v. King, 247 Pa.Super. 443, 447, 372 A.2d 908, 910 (1977). See: Commonwealth v. Hook, 313 Pa.Super. 1, 459 A.2d 379 (1983).

The thrust of Glessner’s ineffective assistance of counsel argument is that suppression counsel in the Municipal Court failed to call two witnesses to testify at the suppression hearing or, in the alternative, obtain a continuance of the hearing to obtain the witnesses’ presence at a later hearing. This argument arises because the Common Pleas Court held that the witnesses had been available at the time of the proceedings in the Municipal Court and, therefore, refused to permit relitigation of the suppression issues in the Court of Common Pleas. This was in keeping with Pa.R.Crim.P. 323(j) which permits relitigation of suppression issues when the defense has acquired evidence that was previously unavailable. See: Commonwealth v. Harmon, 469 Pa. 490, 498 n. 11, 366 A.2d 895, 899 n. 11 (1976) (litigation of suppression motion in Municipal Court bars relitigation of same issue upon trial de novo except on a showing that the evidence was unavailable at the time of trial).

At the hearing on post-trial motions, the burden was upon Glessner to prove that prior counsel had rendered ineffective assistance by failing to call the two alleged witnesses at the suppression hearing. This he failed to do. Counsel is presumed effective, and “the burden of establishing counsel’s ineffectiveness rests upon his client.” Commonwealth v. Clemmons, 505 Pa. 356, 361-362, 479 A.2d 955, 958 (1984). Accord: Strickland v. Washington, — U.S. —, —, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984); Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983); Commonwealth v. Litzenberger, 333 Pa.Super. 471, 481-482, 482 A.2d 968, 973-74 (1984). Where a convicted defendant challenges his attorney’s failure to procure the assistance of putative witnesses, the burden is upon the defendant to prove that the witnesses had favorable testimony to offer and that the defendant identified them or informed counsel of their existence. See: Commonwealth v. Clemmons, supra, 505 Pa. at 365, 479 A.2d at 959; Commonwealth v. Allen, 501 Pa. 525, 533-534, 462 A.2d 624, 629 (1983); Commonwealth v. Wade, 501 Pa. 331, 333, 461 A.2d 613, 614 (1983); Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 215 (1983); Commonwealth v. Bailey, 322 Pa.Super. 249, 262, 469 A.2d 604, 611 (1983); Commonwealth v. Blackwell, 312 Pa.Super. 117, 122, 458 A.2d 541, 544 (1983).

At the post-trial hearing on appellant’s averments that counsel had rendered ineffective assistance, appellant expressed a desire to represent himself, with counsel standing by to render assistance if requested. The court admonished him regarding the dangers inherent in self-representation but acceded to appellant’s request. Counsel remained present during the hearing on post-trial motions where suppression hearing witnesses were identified as Robert Ruddy and Patricia Canoe. Ruddy was asserted to have been present at the time of appellant’s arrest, and Patricia Canoe, appellant’s aunt, was alleged to have been the owner of the vehicle in which appellant was found. However, no testimony was offered. Neither Ruddy nor Ms. Canoe was called to give testimony during the post-trial hearing. Thus, there is no record and no way of knowing that the testimony which they would have given, if called as witnesses during the pre-trial suppression hearing, would have been helpful. The aunt’s ownership of the car, standing alone, was not determinative or even relevant to the existence of reasonable suspicion or probable cause on the part of the arresting officer. Moreover, there is no evidence that suppression counsel had been aware of these witnesses or the facts, if any, which their testimony would have imparted. Thus, it is patently clear that appellant failed to prove ineffective assistance of counsel during the pre-trial proceedings.

In an attempt to avoid the consequences of this deficiency, Glessner also contends that stand-by counsel was ineffective during the post-trial, evidentiary hearing because he failed to advise appellant fully. This argument is frivolous. Glessner voluntarily chose to represent himself despite the court’s clear admonition regarding the pitfalls of such a procedure. The argument on appeal that a defendant received ineffective assistance of counsel “is not available to one who insists on self-representation.” Commonwealth v. Andrews, 282 Pa.Super. 115, 130, 422 A.2d 855, 862 (1980). Glessner expressed no dissatisfaction with the service of post-trial counsel at the time of the hearing. He cannot now challenge his own ineffectiveness or shift the responsibility therefor to stand-by counsel, who occupied only an advisory role. See: Commonwealth v. Celijewski, 324 Pa.Super. 185, 190, 471 A.2d 525, 528 (1984).

Judgment of Sentence affirmed.

      . 18 Pa.C.S. §§ 6106, 6108.

      . Pa.R.Crim.P. 6013(d)(2)(i) provides:
      (d) In determining the period for commencement of trial, there shall be excluded therefrom:
      (2) such period of delay at any stage of the proceedings as results from:
      (i) the unavailability of the defendant or his attorney[.]

      . Robert Ruddy was not present during the post-trial hearing. Patricia Canoe was present but did not testify.


author: DEL SOLE, Judge:

text:
    486 A.2d 525
    COMMONWEALTH of Pennsylvania v. Michael VIANELLO, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1984.
    Decided Dec. 19, 1984.

      Michael Vianello, appellant, in propria persona.
    James F. Marsh, District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   DEL SOLE, Judge:

Appellant was convicted before a district justice of the following summary offenses: driving an unregistered vehicle, failing to exhibit and sign a vehicle registration card and harassment. Appellant then filed a timely appeal de novo of the convictions to the Monroe County Common Pleas Court. Appellant’s trial de novo was scheduled for July 27, 1983 at 9:30 a.m. By order of August 22, 1983, the trial court dismissed Appellant’s appeal de novo for Appellant’s failure to appear when the case was called for trial. It is that order which is the subject of the instant appeal.

Appellant admits that he did not appear for trial until between 9:45 a.m. and 9:50 a.m. on the scheduled date. However, Appellant argues on appeal that the trial court should not have dismissed his appeal but rather proceeded with the trial in his absence and rendered a verdict on the evidence presented by the Commonwealth. We agree with Appellant. Accordingly, the trial court’s order dismissing Appellant’s appeal de novo is reversed and the case is remanded for a new trial.

In its opinion accompanying the order dismissing Appellant’s appeal de novo the trial court cites solely in support Commonwealth v. Smith, 237 Pa.Super. 506, 352 A.2d 90 (1975) for the proposition that a trial in an appeal de novo of a summary conviction need not be held if the defendant fails to appear at the scheduled hearing without cause for such absence. However, a review of the law in this Commonwealth shows the trial court’s reliance on Smith to be misplaced and clearly error.

The case controlling our disposition is Commonwealth v. Kyle, 307 Pa.Super. 446, 453 A.2d 668 (1982). In Kyle, as in the case sub judice, the defendant’s appeal de novo from a summary traffic conviction was dismissed for Appellant’s failure to appear at trial. This Court noted in Kyle that we have repeatedly held that in an appeal of a summary offense to the court of common pleas, the judgment of the common pleas court should be a verdict of “guilty” or “not guilty”. 307 Pa.Super. at 448, 453 A.2d at 669. See also Commonwealth v. Gula, 300 Pa.Super. 445, 446 A.2d 938 (1982) citing Commonwealth v. Carter, 230 Pa.Super. 401, 326 A.2d 530 (1974). The Kyle Court held that pursuant to Rule 1117 of the Pennsylvania Rules of Criminal Procedure the trial court, even if empowered to proceed without a defendant, must determine the facts and render a verdict, it cannot merely dismiss the appeal. 307 Pa.Super. at 449, 453 A.2d at 669. Further, this Court found that Commonwealth v. Smith, supra, was not controlling since it had been effectively overruled by this Court’s holding in Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981). 307 Pa.Super. at 449, 453 A.2d at 669, footnote 3. Finally, our holding in Kyle has since been applied by this Court in at least one other case. See Commonwealth v. Krut, 311 Pa.Super. 64, 457 A.2d 114 (1983).

In the instant case, Appellant’s appeal de novo was dismissed for his failure to appear at trial. Based on Kyle the trial court, upon discovering that Appellant was not present when the case was called for trial, should have required the Commonwealth to proceed with its case and then rendered a verdict of guilty or not guilty based on the evidence presented. Thus, the trial court’s decision to dismiss the appeal was error as was the trial court’s reliance on Commonwealth v. Smith, supra. Accordingly, we reverse the trial court’s order and remand for a new trial.

Order reversed.

Case remanded for a new trial.

Jurisdiction is relinquished.