author: MONTEMURO, Judge:

text:
    439 A.2d 809
    John G. ROHR and Helen T. Rohr, H/W Individually, and John G. Rohr, Administrator of the Estate of Jacquelyn A. Rohr, Deceased, v. KEYSTONE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1981.
    Filed Jan. 8, 1982.

      Dean B. Stewart, Jr., Norristown, for appellant.
    Bernard J. McLafferty, Norristown, for appellees.
    Before PRICE, MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas of Montgomery County granting appellees’ motion for partial summary judgment. For the reasons stated below, the instant appeal is quashed.

Appellees, on August 28, 1979, filed a complaint in assumpsit against appellant to recover work loss and survivor’s loss benefits as provided under Pennsylvania’s No-Fault Motor Vehicle Insurance Act. Subsequently, appellant filed an answer, new matter, and a counterclaim. Appellees filed a reply to the new matter and, in addition, filed a request for admissions from appellant.

On March 28, 1980, appellees, receiving no answer or objection to their request for admissions, filed a motion for partial summary judgment asking the court to award them the full limit of work loss benefits less sums already paid by appellant.

On May 1,1980, the lower court entered an order granting appellees’ motion for partial summary judgment pursuant to Montgomery County local Rule of Civil Procedure No. 302(d). This rule requires the filing of a responsive brief within thirty (30) days from the filing of the moving party’s brief. Since appellant failed to file its brief within such time, the lower court entered its order granting appellees’ partial summary judgment in the amount of $14,166.57 on the work loss benefits issue.

On May 7, 1980, appellant’s request to the court to rescind its order was denied, and on May 27, 1980, the court also denied appellant’s petition for reconsideration. On May 29, 1980, appellant filed this appeal.

Although neither party on appeal has challenged the jurisdiction of this court to resolve this matter, it is fundamental that neither silence nor agreement of the parties will confer jurisdiction where it otherwise would not exist. Giannini v. Foy, 279 Pa. Super. 553, 554, 421 A.2d 338, 339 (1980). Therefore, we shall consider the issue of the appealability of the trial court’s order sua sponte. Mackan-ick v. Rubin, 244 Pa.Super. 467, 473, 368 A.2d 815, 818 (1976).

In Bagshaw v. Vickers, 286 Pa.Super. 246, 428 A.2d 664, 665 (1981), our court aptly stated the law concerning this court’s jurisdiction over orders entered by the lower court as follows:

This court has jurisdiction over “all appeals from final orders of the courts of common pleas.” Act of July 9, 1976, P.L. 586, No. 172, § 2, 42 Pa.C.S. § 742 (effective June 27, 1978) (emphasis added). “In determining what constitutes a final order we . . . look to ‘a practical rather than technical construction’ of an order.” Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (citation omitted). “A final order is one which ends the litigation, or alternatively, disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974).” Pugar v. Greco, 483 Pa. at 73, 394 A.2d at 544—45. On the other hand, “an order is interlocutory and not final unless it effectively puts litigant ‘out of court.’ ” Giannini v. Foy, 279 Pa.Super. at 556, 421 A.2d at 339 (citations omitted).

The trial court’s order granting the appellees’ motion for partial summary judgment did not end the litigation or dispose of the entire case. In its order the trial court determined only the issue of work loss benefits. Still remaining to be adjudicated is the issue of survivor’s loss benefits as raised in two counts of the appellees’ complaint. The trial court’s order, therefore, is interlocutory, and not properly before us. See Giannini v. Foy, supra; Shaefer v. American States Gas Co., 272 Pa.Super. 67, 414 A.2d 672 (1979).

Appeal is quashed.

PRICE, J., did not participate in the consideration or decision of this case.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. 1, § 101, 40 P.S. §§ 1009.101 et seq.

      . The $15,000 total coverage for work loss benefits was reduced by the sum of $833.43 paid by appellant for work loss incurred by appellees’ decedent prior to her death.


source: Caselaw Access Project

license: Public Domain

text:
    439 A.2d 811
    COMMONWEALTH of Pennsylvania v. Clarence W. ALLEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 19, 1981.
    Filed Jan. 8, 1982.
    Vincent A. Couchara, Norristown, for appellant.
    Joseph Smyth, District Attorney, Norristown, for Commonwealth, appellee.
    Before PRICE, MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

This is an appeal from an Order denying relief under the Post Conviction Hearing Act, 19 P.S. 1180-1 et seq. Appellant contends that trial counsel rendered ineffective assistance, because he failed to ensure that the elements of the offenses were explained to appellant when he pleaded guilty to charges of forgery, theft of services, and illegal use of credit cards. For these offenses appellant was sentenced to one and a half to five years’ imprisonment, followed by five years’ probation.

Appellant also contends that his guilty plea was induced unlawfully, because he did not understand the nature of the charges against him.

In Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), the Supreme Court made it an express requirement that “for an examination to demonstrate a defendant’s understanding of the charge, the record must disclose that the elements of the crime or crimes charged were outlined in understandable terms.” Id., 455 Pa. 203-04, 316 A.2d at 80. In other words, the explanation of the charges must itself be on the record. E.g, Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259, 261, (1976); Commonwealth v. Allen, 278 Pa.Super. 511, 420 A.2d 653, 655 (1980).

Appellant’s guilty plea colloquy took place on May 1, 1975 and was conducted by trial counsel. When asked if counsel had explained to him “the nature of the charges and discussed the facts of the case, and what the possible defenses might be,” appellant answered, “Yes.” (N.T. pg. 32). This is the only segment of the examination which focused on appellant’s understanding of the charges. There followed some discussion about which of the charges appellant should plead to and which should be nolle prossed. The record is barren, however, of any explanation of the elements of the charges.

Applying the Ingram standard to the record in this case, we conclude that the colloquy suffers from a defect which vitiates appellant’s guilty plea.

We are reluctant to release someone who has pleaded guilty and received the sentence he bargained for, when he exploits a formality of due process which has nothing to do with his guilt or innocence. The record of the P.C.H.A. hearing suggests that appellant only attacked his conviction, because he was charged with violation of probation. The hearing court took notice that appellant had previously pleaded guilty to twenty indictments for forgery. All of which tends to confirm appellant’s statement in the colloquy that he did “thoroughly” understand what was going on. (N.T., pg. 43). After a lapse of six years the Commonwealth will find it difficult or perhaps impossible to prosecute him a second time. Nevertheless, we are forced to grant appellant the relief he has requested. Our only satisfaction lies in knowing how necessary it is to surround the waiver of constitutional rights with elaborate safeguards.

The Order below is accordingly reversed, and a new trial is granted.

VAN der VOORT, J., dissents.


author: POPOVICH, Judge:

text:
    439 A.2d 812
    COMMONWEALTH of Pennsylvania v. Daniel HADOVANIC, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 20, 1981.
    Filed Jan. 8, 1982.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before HESTER, POPOVICH and DiSALLE, JJ.
   POPOVICH, Judge:

Appellant, Daniel Hadovanic, was found guilty by a jury of numerous counts of rape, statutory rape, corruption of a minor, involuntary deviate sexual intercourse, incest, indecent assault and criminal solicitation. After post-trial motions were denied and sentence imposed, appellant appealed to this Court, which affirmed the judgment of sentence in a Memorandum Opinion filed May 31, 1979, at No. 603 April Term, 1978, 268 Pa.Super. 630, 413 A.2d 1136. Thereafter, appellant, represented by counsel other than trial counsel, filed a Post-Conviction Hearing Act (PCHA) petition alleging that (private) trial counsel was ineffective for neglecting to inform him of the result of his direct appeal and for failing to assert a violation by the Commonwealth of his right to a trial within 180 days as embodied in Pa.R.Crim.P. 1100. After the conducting of a hearing on appellant’s claims, the Hon. John W. O’Brien granted appellant the right to appeal nunc pro tunc to our Supreme Court for review of this Court’s affirmance of the judgment of sentence, but denied the latter relief requested.

On appeal, appellant claims that trial counsel was ineffective for failing to advise him of “the ramifications of signing a waiver of Rule 1100”; and “had counsel informed him of the consequences of signing the waiver ..., he would not have done so.” (Appellant’s Brief at 7) Moreover, appellant contends that a Rule 1100 violation existed and his counsel, therefore, was ineffective for not raising it. Id. at 9.

As to the first prong of appellant’s contention, the record evidences an exchange involving the appellant, his counsel and the trial judge which belies such averment; to-wit:

“[Appellant’s Counsel:]
Q You understand that your trial was set for September —rather, July 15, 1977?
[Appellant:]
A Yes.
Q We have prepared a petition for continuance, an application for postponement and a petition for continuance, both of which you have consented to, setting the trial date for September 21, 1977?
A Yes, I do.
Q You understand, under the Rule 1100 of the Pennsylvania Rules of Criminal Procedure, you have the right to go to trial within 180 days from the original date? You understand that?
A Yes, I do.
Q And that by executing these documents, we are waiving that 180-day rule. You understand that?
A Yes, I do.
Q Have you consented and executed both petition for continuance and the application for postponement?
A Yes, I have.
[Appellant’s Counsel]: Does the Court wish to ask any questions of Mr. Hadovanic?
% :je sf: s}!
THE COURT: Now, you are waiving your rights under Rule 1100, that is, the 180-day rule right to speedy trial, which every person has. Is that correct?
THE DEFENDANT: Yes.
THE COURT: May I see the forms? Did you sign them, Mr. Hadovanic?
THE DEFENDANT: Yes, I did sign them.
THE COURT: Were they explained to you both by the District Attorney—
THE DEFENDANT: They were explained to me by my attorney.”
(N.T. 7/12/77, at 13-14, 16)

At the PCHA hearing, appellant presented no evidence whatsoever to substantiate the claim that his Rule 1100 waiver was anything but a knowing, intelligent and voluntary one. See Commonwealth v. Garcia, 478 Pa. 406, 417, 387 A.2d 46, 52 (1978) (“Counsel’s representation is presumed to be competent and the defendant has the burden to show otherwise. Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).”)

Moreover, in this Commonwealth, a Rule 1100 waiver is formally valid if either the colloquy or the signed statement indicate an informed and voluntary waiver. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976). Therefore, given the existence of the colloquy cited supba, as well as record evidence of a signed “Petition for Continuance” by the appellant and his counsel (Record No. 13), we find no reason to hold that the waiver was improper. See Commonwealth v. Waldman, 484 Pa. 217, 398 A.2d 1022 (1979).

Lastly, appellant avers that Rule 1100 violations occurred in his case, and that counsel’s failure to argue same to the court below renders him ineffective. We find otherwise.

The record discloses, and the lower court found, that the complaint in this case was filed on February 11, 1977. On July 12, 1977, prior to the expiration of 180 days, both appellant and his trial counsel made a written application for postponement of the trial until September 21, 1977, when, in fact, trial did commence. The postponement of the trial was necessitated by counsel being outside the Commonwealth until September 1, 1977. The trial court advised the appellant that he could seek new counsel if he wished, so the trial need not be postponed. Appellant declined the offer and stated that he wished to retain present counsel. Thus, the continuance was granted at appellant’s behest. He cannot argue now that such action should never have been undertaken by his attorney, and that the delay in the trial violated his right to a speedy trial under Rule 1100.

Since we have already ruled on the validity of appellant’s waiver of his Rule 1100 rights, and no other evidence has been proffered by the appellant to undermine the propriety of such waiver, no reason exists to overturn the PCHA court’s denial of appellant’s requested relief.

Order affirmed.

Decision was rendered prior to DiSALLE, J., leaving the bench of the Superior Court.

      . The Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq. as amended, 19 P.S. § 1180-1 et seq., repealed by Section 2(a) [1397] of the Act of April 28, 1978, P.L. 202, No. 53, repeal effective June 27, 1980, as amended by Section 1 of the Act of June 26, 1980, P.L. 265, No. 77, § 2, delaying repeal until June 27, 1981.

      . A Petition for Allowance of Appeal to the Supreme Court was filed on April 25, 1980, at No. 124 W.D. Miscellaneous Docket, 1980, and denied by the Court on November 14, 1980.

      . Appellant, for the first time on appeal, makes the bald assertion that “because counsel had coerced [him] to waive this [Rule 1100] right some two months earlierf,]” (see Appellant’s Brief at 10), the waiver was invalid and counsel was ineffective as a result thereof. Appellant’s failure to raise such theory in his PCHA petition as a basis for relief precludes him from raising it now. See Commonwealth v. Polof, 238 Pa.Super. 565, 362 A.2d 427 (1976).


author: SHERTZ, Judge:

text:
    439 A.2d 815
    Irene OVERS v. Donald E. OVERS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 13, 1981.
    Filed Jan. 8, 1982.
    Petition for Allowance of Appeal Denied May 3, 1982.

      Edward Weingart, Pittsburgh, for appellant.
    Joseph M. Wymard, Pittsburgh, for appellee.
    Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   SHERTZ, Judge:

This appeal by Donald Overs is from an Order of support, for Appellee wife and a minor daughter, in the amount of seven hundred thirty dollars per month. Appellant raises four arguments on appeal: first, that the evidence does not support a finding that Appellee had adequate reason in law to leave the marital domicile and she is not, therefore, entitled to support; second, that Appellant should have been granted a continuance because he was unrepresented at the hearing held in this matter and he was unfairly precluded from presenting his case; third, that the court erred in determining Appellee’s income; and fourth, that the court erred in calculating the support order by taking into account prior indebtedness. Finding no merit to these contentions, we affirm the Order of the lower court.

Donald and Irene Overs separated in May, 1980, when Mrs. Overs, along with the couple’s sixteen-year-old daughter, left the marital domicile. Appellant claims the record does not support a finding that Appellee established entitlement to support inasmuch as Appellee failed to show that her voluntary withdrawal from the family home was legally justified.

In an action for support where the wife has voluntarily withdrawn from the common abode, without the consent of the husband, the law is well settled.

In such an instance, it is not necessary for the wife to present grounds for leaving her husband which would entitle her to divorce in order to procure an order of support. . . . The wife need only show by sufficient evidence a reasonable cause that would justify her voluntary withdrawal from the common domicile.

Commonwealth ex rel. Loosley v. Loosley, 236 Pa.Super. 389, 391, 345 A.2d 721, 722 (1975) (quoting Halderman v. Halderman, 230 Pa.Super. 125, 326 A.2d 908 (1974)). See also Larkin v. Larkin, 262 Pa.Super. 294, 396 A.2d 761 (1978).

The record amply supports a finding that Appellee was justified in leaving Appellant. Appellee has worked outside the home for nine years, forty hours a week as a cleaning lady, and weekends in a grocery store. N.T. at 7. Appellee testified she sought employment because her husband, earning approximately $31,700 annually as a senior engineer for Westinghouse Corporation, refused to provide her with money for, inter alia, clothing, medicine, and other personal expenses. N.T. at 6. Moreover, Appellant humiliated and embarrassed Appellee in front of the children and friends by accusing her of lying, of infidelity and of inability to take care of the home. N.T. at 24. He did not allow her to make independent decisions in matters of finances and of housekeeping. N.T. at 26. Actually, Appellee cited a litany of abuses which clearly constitute reasonable cause for voluntary withdrawal from the common domicile, hence entitlement was proved.

Appellant next contends that he was denied a fair hearing and argues, in support thereof, that he was precluded by the hearing officer from presenting his case and that the hearing officer ought to have granted a continuance, because Appellant appeared at the hearing without counsel. These arguments can be disposed of easily. The record reveals that Appellant never requested a continuance and was not precluded from presenting rebuttal testimony. In point of fact, the hearing officer, on four occasions, invited Appellant to cross-examine Appellee on the issue of entitlement, N.T. at 31-33, but he failed to do so. Appellant was also offered the opportunity, at a later point in the hearing, to present further testimony. He declined. Consequently, he will not now be heard to complain that the hearing was unfair.

Appellant’s third assertion of error is that the court below unjustifiably reduced Appellee’s income figure by failing to include, in the computation thereof, the wages she earned in her weekend job. The court, however, reasoned:

Defendant’s net income is $1865.00 per month. Plaintiff’s net income was computed at $438.00 per month. Plaintiff was earning somewhat more than that amount, but she did so by working seven days a week. At the hearing, Plaintiff indicated that she desired to work only five days a week. Defendant offered no reason why Plaintiff should have to work seven days a week, and it appears equitable to this Court that she have (sic) to work only five. Both parties have one minor child residing with them.

Trial Ct. Slip Op. at 5-6.

Our scope of review in support matters is extremely limited.

In support proceedings, an appellate court will defer to the lower court, absent a showing of a clear abuse of discretion. . . In order to determine whether an abuse of discretion has occurred, we consider whether the lower court has misapplied or overridden existing law, made a manifestly unreasonable judgment, or ruled with partiality, prejudice, bias or ill will.

Machen v. Machen, 278 Pa.Super. 135, 137, 420 A.2d 466, 467 (1980) (citations omitted). Utilizing this standard, we find the lower court has not abused its discretion in concluding that Appellee was entitled to spend some time with her teenage daughter, rather than be compelled to be gainfully employed seven days a week.

Appellant’s final assertion is that the court improperly considered past indebtedness in setting the support figure. Relying on Commonwealth ex rel. Gutzeit v. Gutzeit, 200 Pa.Super. 401, 409, 189 A.2d 324, 328 (1963), and Commonwealth ex rel. Goichman v. Goichman, 219 Pa.Super. 367, 281 A.2d 333 (1971), as well as Appellant’s testimony that she owed substantial amounts to department stores and loan companies, Appellant argued below, as he does on appeal, that the court allowed an “amount of support which . . . evidently is intended to pay for back bills incurred by Plaintiff.” Trial Ct. Slip Op. at 6 (quoting Appellant’s Statement of Matters Complained Of on Appeal) (emphasis added). To this assertion the court below responded: “[T]he amount awarded does not cover Plaintiff’s full expenses as shown on her budget. Moreover, while expenses were considered in making the order, the most important factor was the respective income of the parties.” Trial Ct. Slip Op. at 7.

Based upon our review of the record, as well as the reasons for the amount awarded as set forth in the Opinion issued by the lower court, we find the Order in question to be prospective only and we thus reject Appellant’s final assertion in support of reversal.

Order affirmed.

Decision was rendered prior to SHERTZ, J., leaving the Superior Court of Pennsylvania.

      . Appellant has waived those issues which were not raised in exceptions filed below as required by Rule 1038(d), Pa.R.Civ.P., and Paul v. Paul, 281 Pa.Super.Ct. 201 n. 11, 421 A.2d 1219 n. 11 (1980).

      . The Order and the Opinion in support thereof, were issued by the court below after it reviewed both the testimony taken at the hearing held in connection with this matter and the recommendation of the hearing officer.

      . The couple’s fifteen-year-old son continued to reside with Donald Overs.

      . Appellant alternatively argues that, in the absence of a reasonable record on the issue of whether he was unrepresented at the hearing by choice or by mischance, the hearing must be considered unfair. Brief for Appellant at 17-18. Appellant waived this issue, however, in failing to raise it in his exceptions and Brief in support thereof. See n. 1. supra.

      . Hearing Officer: “Mr. Overs, is there anything further you wish to present?”
      Mr. Overs: “No. I am not in a position to present anything now.” N.T. at 60.

      . Working as a cleaning lady five days a week, Appellee received approximately $440 per month. She also earned $200 per month working in a grocery store on weekends.


author:
WATKINS, Judge:
      SPAETH, Judge,

text:
    439 A.2d 818
    Elmo F. PIO, Executor of the Estate of Eugene V. Pio, Deceased, Appellant, v. Steve LETAVEC, Raymond Sanino, Michael Yablonski and James Bistarkey a/k/a James Bistarky.
    Superior Court of Pennsylvania.
    Argued April 10, 1979.
    Filed Jan. 8, 1982.
    Petition for Allowance of Appeal Denied May 3, 1982.

      P. Christian Hague, Pittsburgh, for appellant.
    Harry W. Miller, Pittsburgh, did not file a brief on behalf of Letavec, appellee.

      Bruce R. Martin, Pittsburgh, for Sanino, appellee.
    Louis Anstandig, Pittsburgh, for Yablonski, appellee.
    H. Fred Mercer, Pittsburgh, for Bistarkey, appellee.
    Before SPAETH, WATKINS and VAN der VOORT, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Allegheny County, Civil Division, and involves the plaintiff-appellant’s appeal from an order of the court below which refused plaintiff’s Motion to Take Off a Non Suit granted to the defendants after the presentation of the plaintiff’s case. Plaintiff had sued four defendants under the Wrongful Death and Survival Act.

Plaintiff is the executor of the estate of Eugene Pio, deceased, who was killed on December 11, 1973 at approximately 9:00 P.M. on Route 51 in Forward Township, Allegheny County, Pennsylvania. At the location of the accident Route 51 is a four lane divided highway with two lanes proceeding in a northerly direction and two lanes proceeding in a southerly direction. The decedent was killed when he stepped off a medial divider and was struck by one or more vehicles. The first vehicle to strike the decedent was a 1970 Chevrolet operated by a Steve Letavec. Letavec testified that he struck the decedent when the decedent stepped off the medial divider into the left hand lane of Letavec’s direction of travel (north). He was travelling in the left lane because the right lane was torn up in that area and is in a state of disrepair. Letavec, hereinafter referred to as defendant 1, then stopped his vehicle. He had not run over the decedent. A dent in the left hand area of his hood area of his vehicle cost $47 to repair. He had been going 40-45 miles per hour at the time of impact. At trial an expert medical witness, Dr. Joshua Perper, testified that in his opinion the impact of defendant l’s vehicle with the decedent would not have caused the injuries which resulted in the decedent’s demise. Defendant 1 further testified that he only observed the decedent upon impact with him, that he was wearing dark clothing, and that the area was dark and not well-lighted by street lights. After the collision defendant 1 stopped his automobile and then stated that he saw several other cars go by the scene. He stated that he observed “one, two I saw” other vehicles strike the decedent as he was laying on the roadway. The record reveals that defendant 1 and his insurance carrier have been released from any liability by plaintiff as of February 16, 1976. The consideration for the release was $15,000, defendant l’s policy limit. Thus, the case against defendant 1 is moot.

Defendant 2 is Michael Yablonski and defendant 4 is James Bistarky both of whom were operators of motor vehicles who arrived on the scene after the initial impact whereby defendant 1 struck the deceased. Plaintiff alleges that both defendant 2 and defendant 4 struck the decedent while he was laying in the road. The only evidence to support the allegation that defendant 2 struck the deceased is that defendant 3, Raymond Sanino, testified that the decedent was straddling both lanes of the northbound lane of Route 51 when defendant 3 approached and that defendant 2 testified that decedent was completely in the right hand lane of said roadway as he approached. From this, plaintiff argues that a fact-finder could infer that defendant 2 struck the decedent, presumably moving him to the place where defendant 3 encountered him.

The only evidence that defendant 4 struck the decedent was the fact that his vehicle was dirty but for a clean spot on its side and defendant 4’s alleged statement to defendant 3 at the scene of the accident that he thought that he might have struck the decedent. Both defendant 2 and defendant 4 deny that they struck the decedent. Plaintiff cites several cases and the Restatement of Torts for the proposition that “the burden is upon each actor to prove that he has not caused the harm suffered by the plaintiff in situations where the conduct of two or more actors is tortious and where harm has been caused to plaintiff by at least one of them but where there is uncertainty as to which one has caused it”. See Restatement of Torts (Second) Sec. 433 B (3). However, all of the authorities cited by plaintiff involve situations where it is proven that the plaintiff was struck by several vehicles. Here the court below found that plaintiff had not produced sufficient evidence to establish that defendant 2 and defendant 4 struck the decedent. We agree. Therefore, we affirm the decision of the court below in refusing to take off the nonsuit against Yablonski (defendant 2) and Bistarky (defendant 4).

Defendant 3, Raymond Sanino, struck the decedent as he lay straddled between the two northbound lanes. He testified that he had seen an automobile on the right berm of the road with lights on and its engine running and had driven his vehicle over into the left lane to avoid the vehicle he had seen parked along the right berm. As he did so he noticed an object lying straddled between both northbound lanes, swerved to avoid it, “hit” the brakes, then swerved again so that his vehicle ended up straddling the object. As he went over it he heard a slight “thump”. He then pulled his vehicle over to the side of the road and went back to investigate what the object was along with defendant 4 who had also stopped at the scene. When they got back to the scene they observed that the object was the decedent. Defendant 3 was travelling at 45 miles per hour at the time of the incident. Several other vehicles passed the scene during the time the decedent was on the roadbed. The evidence produced at trial indicates that Sanino’s vehicle’s undercarriage struck the decedent. The issue is whether there was sufficient evidence adduced on the record to permit a jury to conclude that: (1) Sanino was negligent; and (2) that the decedent was alive when Sanino’s vehicle struck him.

Dr. Perper testified that “one single strike by a car” going 40-45 miles per hour would not have been sufficient to cause the injuries suffered by the decedent. However, the doctor opined that the decedent died of “severe blunt force injuries”, testified that the decedent had been knocked out of his shoes and that the single blow by Letavec’s vehicle would be sufficient to do that, testified that a man hit from his right by a car would have a second impact from the same car and possibly a third such impact, and further admitted that the decedent’s skull fractures could have resulted from his head striking the ground after the impact with the Letavec vehicle and that this possibility was as consistent with his skull fracture as was the possibility that the skull was fractured when a vehicle ran over it.

After a careful review of the Sanino testimony, we find that the court below was correct in granting the nonsuit in the case against him. There was evidence to the effect that an unidentified vehicle struck the decedent after Letavec did but before Sanino did. Sanino argues that his situation falls within the specific illustration set forth in Torts Restatement (Second) Sec. 433 B, illustration 2, an example wherein it is stated that the plaintiff has not sustained his burden of proof. We agree. We also note that plaintiff’s case against Sanino established only that his vehicle ended up straddling the decedent and that the underside of his vehicle struck the decedent’s body. No other contact with the decedent’s body was established. The evidence also established that Sanino was operating his vehicle within the speed limit, in a dark area, and had moved his vehicle to the left of the roadway to avoid the vehicle he had observed parked along the right berm of the road with headlights on and the engine running. As he was doing this he looked to the right to try to detect anyone moving onto the road from the area of the parked vehicle when he was suddenly confronted with the decedent’s body, clothed in dark attire, lying straddled between both lanes of the northbound side of the roadway. He then swerved his vehicle in order to avoid the decedent and ended up straddling him. The mere happening of an accident does not mean that someone was negligent. Under these circumstances, we hold that the court below ruled correctly when it granted the nonsuits against defendant 2, defendant 3 and defendant 4. The case against defendant 1 is moot.

Order affirmed.

SPAETH, J., files a concurring and dissenting statement.

SPAETH, Judge,

concurring and dissenting:

I agree that a nonsuit was proper as to defendant No. 2 (Yablonski) and No. 4 (Bistarky). However, as to defendant No. 3 (Sanino), I believe the case should have gone to the jury. A motion for compulsory nonsuit should not be granted if the jury could have found from the evidence in the plaintiff’s favor. Here, the jury could have found on the basis of Dr. Perper’s testimony that the plaintiff’s decedent had not been killed by the initial impact, but was killed when Sanino drove over him.


author: WATKINS, Judge:

text:
    439 A.2d 821
    Arlene DURANT, Appellant, v. Mike DURANT and Bill Durant.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1979.
    Filed Jan. 8, 1982.
    Petition for Allowance of Appeal Denied June 4, 1982.

      Simon B. John, Uniontown, for appellant.

      L. D. McDaniel, Uniontown, for appellees.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   WATKINS, Judge:

This civil action comes to us on appeal from the Court of Common Pleas of Fayette County and involves the appellant Arlene Durant’s appeal from an order of the court below dated December 11, 1978 which order dismissed appellant’s exceptions to the Order of the Court of August 10, 1978 which order had dismissed appellant’s Complaint in Equity initiated against the appellees.

On March 21, 1978 the appellant filed her Complaint against her husband, Mike Durant, and his brother, Bill Durant, requesting the court to set aside a transfer of real estate by which Mike Durant transferred two parcels of land situated in South Union Township, Fayette County, Pennsylvania, to his brother, Bill Durant. The deed by which the transfer was accomplished was dated February 1, 1977 and was recorded on October 13, 1977 in the Recorder of Deeds Office of Fayette County. The consideration was $10,000. The real estate contained thereon a frame dwelling used as a tavern. The appellant claims that the transfer constituted a fraud upon her, was made for the purpose of divesting her of her marital interest in the property and violated a “Treaty of Marriage” between appellant and her husband. The appellant and appellee, Mike Durant, were married on July 18, 1977.

The real estate in question was purchased in 1966 by the appellee Mike Durant and his brother, Louis Durant. In 1967 Louis Durant and his wife conveyed their interest in the property to Mike Durant. At that time Bill Durant, Mike’s other brother, purchased new equipment for the tavern which Mike had operated on the premises. Mike Durant and the appellant then began dating. A child (a son) was born to them in November of 1973. In July of 1976 they began negotiations for the construction of an apartment above the tavern which was to serve as the home of the couple and their son, as well as, three other children of appellant who were still living with her. On April 15, 1977 subsequent to the date of the aforesaid deed transferring the property from Mike Durant to Bill Durant, Mike and Bill executed a contract with Herman Huggins for the construction of the apartment. On August 18, 1977 the contract was paid in full. Sometime in January of 1978 Mike Durant left the second floor apartment which had served as the home of the couple and their child and moved downstairs into a bedroom behind the bar area of the building. On December 30, 1977 Bill Durant’s attorney gave notice to Mike Durant and the appellant to vacate the premises due to their failure to pay rent to him. Appellant’s Complaint in Equity followed. After a hearing the court below dismissed her Complaint which decision was upheld by the Court en banc after appellant had filed her exceptions. This appeal followed.

Appellant’s position is that the evidence demonstrated that a “treaty of marriage” existed between her and Mike Durant, and that because Mike Durant never advised the appellant that he was in the process of transferring the real estate to his brother and did not disclose its transfer to her that the transfer operated as an actual fraud upon her the sole purpose of which was to divest her of her marital rights in the property.

There are three situations to be considered where a spouse or a prospective spouse has conveyed real or personal property without the joinder or consent of the other: (a) after marriage; (b) after engagement but before marriage; (c) before engagement to marry. Smigell v. Brod, 366 Pa. 612, 79 A.2d 411 (1951). In the instant case the deed conveying the real estate to Bill Durant was dated some six months prior to the marriage of the appellant to Mike Durant although it was not recorded until after their marriage. Since the appellant did not establish that the deed was “back-dated” it is presumed that it was executed on the date set forth therein, i.e. February 1, 1977. As such the conveyance, although unrecorded, took place six months prior to the marriage. Thus, the first situation does not apply to our case.

The second situation applies to a conveyance made after the engagement but before marriage or during a “treaty of marriage”. Mere proof of the conveyance of a gift, without the knowledge of the other party during this period does not constitute a prima facie case of fraudulent transfer. It is necessary for the party alleging it to prove actual fraud. Kirk v. Kirk, 340 Pa. 203, 16 A.2d 47 (1940); Smigell v. Brod, supra. Although appellant does argue that the transfer in the instant case was fraudulent the court below sitting in equity, in considering the evidence and acting as the fact-finder, held that “there is no evidence to support a finding that Mike Durant conveyed the tavern to Bill Durant with the intention of defrauding the plaintiff”. There is ample evidence to support this conclusion. The deed stated a consideration of $10,000 and the testimony revealed that Bill Durant had invested money in the business. In addition, the appellant never said that she would not have married Mike Durant if she had known that he was not the owner of the tavern. As stated by the court below:

“Apparently plaintiff assumed that defendant, Mike Durant, was the owner [of the tavern] because of his position as resident manager. There is no evidence, however, that plaintiff ever attempted to verify this assumption. It is probably true that plaintiff believed Mike Durant was the owner of the tavern, but it does not appear that this belief was induced by the actions of Mike Durant.
“Thus, plaintiff cannot maintain that she has been harmed by the alleged deception and it is difficult to see how she can recover when she has suffered no damage.”

Another problem is that it is not clear when the parties became engaged. The parties had been dating for seven years, prior to their marriage but they were never formally engaged. Although appellant testified that she and Mike Durant decided to get married “probably in July of 1976” the record also reveals that they had discussed marriage at other times during their relationship as well, particularly in 1973 when their child was born. Thus, even though a formal engagement is not required for a treaty of marriage to exist, the fact that there was no apparent formal engagement renders appellant’s burden more difficult. This is so because a conveyance made by a spouse before the engagement, the third situation discussed in Smigoll, supra, may not be set aside by the other spouse. Where there is no formal engagement it makes it more difficult for a fact-finder to hold that a conveyance was made during a “treaty of marriage”.

In order for a spouse to set aside a conveyance made by the other spouse he or she must establish: (1) that the conveyance was made after the marriage contract; and (2) that the conveyance constituted actual fraud upon him or her. Patton v. Patton, 351 Pa. 6, 39 A.2d 921 (1944). Even if we assume the existence of a “treaty of marriage” in this case, i.e. that the parties were engaged prior to February 1, 1977, we must still affirm the decision of the court below because the appellant has not proven actual fraud.

Appellant urges us to alter the present state of the law in this matter. However, the policy interest to be served in providing for the free alienation of property, unencumbered by potential claims of potential spouses of the grantor, dictates otherwise.

Order affirmed.


text:
    439 A.2d 823
    COMMONWEALTH of Pennsylvania v. Edward COGHE, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1980.
    Filed Jan. 8, 1982.

      Joseph Budicak, Beaver, for appellant.
    John L. Brown, Jr., Assistant District Attorney, Beaver, for Commonwealth, appellee.
    Before CAVANAUGH, WATKINS and HOFFMAN, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Beaver County, Criminal Division, and involves the appellant-defendant’s claim that the court below erred when it granted the Commonwealth’s Petition for Forfeiture of his property, specifically $1,000 of United States currency which the appellant had paid to a hired killer as a down payment for the contract killing of the appellant’s wife. The scheme was aborted and the murder never occurred.

On November 21, 1978 the appellant pled guilty to the crime of Criminal Solicitation to Commit Murder in connection with the above-mentioned incident. On January 2, 1979, he was sentenced to a term of imprisonment of not less than two (2) nor more than five (5) years, and to pay a fine of $2,000. The Commonwealth subsequently filed its petition requesting that the $1,000 that appellant had paid to the person who he had hired to murder his wife be forfeited. On November 26, 1980 the court below granted the forfeiture of the $1,000. The appellant claims that the court below had no authority to grant the forfeiture of the $1,000 and that the money should be returned to him. We disagree.

Property which is contraband may be forfeited to the Commonwealth. See 35 P.S. 780-128; Commonwealth v. Landy, 240 Pa. Superior Ct. 458, 362 A.2d 999 (1976). There are two classes of contraband: contraband per se, the mere possession of which is unlawful, such as moonshine, heroin, certain prohibited offensive weapons, and other such items; and derivative contraband, which is property which is not inherently illegal but which is used in the perpetration of an unlawful act. Commonwealth v. Fassnacht, 246 Pa. Superior Ct. 42, 369 A.2d 800 (1977). Money proceeds derived from and directly traceable to the sale of an illegal drug and motor vehicles used to transport illegal drugs or moonshine have been held to be derivative contraband. Commonwealth v. Landy, supra.

In the instant case the $1,000 in United States currency that the appellant paid to the person who he had hired to murder his wife is an example of derivative contraband in that the money itself is obviously not inherently illegal but, just as obviously, it was used in the perpetration of an unlawful act, namely; criminal solicitation to commit murder. Thus, we find that the' lower court correctly granted the Commonwealth’s petition and we deny, the appellant’s outrageous attempts to have the “blood money” returned to him.

Order affirmed.


author: PER CURIAM:

text:
    439 A.2d 824
    COMMONWEALTH of Pennsylvania, v. Michael LIGNOS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 16, 1981.
    Filed Jan. 8, 1982.

      Donald Calaiaro, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   PER CURIAM:

On November 26, 1974, appellant was placed on probation for five years following his plea of guilty to the charge of Receiving Stolen Goods. On August 25, 1978, appellant was arrested and charged, inter alia, with the offense of Former Convict Not to Own a Firearm. A probation revocation hearing was held on September 28, 1978 at which a probation officer stated that appellant was given written notice of the hearing and the violations of probation he allegedly committed. Appellant was charged with the so-called “technical” violations of possessing a firearm and leaving Allegheny County without permission. The lower court revoked his probation and imposed upon appellant a sentence of two to five years imprisonment. This appeal followed in which appellant’s main contention is that he was denied procedural due process rights because the notice sent to him did not fully apprise him of the accusations that would be made against him at the hearing. Because we find that appellant has waived the issues he now raises, we affirm the judgment of sentence.

Appellant failed to comply with Pennsylvania Rule of Appellate Procedure 1925(b) which provides:

(b) Direction to file statement of matters complained of. If the lower court is uncertain as to the basis for the appeal, the lower court may by order direct the appellant forthwith to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

Appellant filed a notice of appeal from the judgment of sentence on November 2, 1978. On that date, the lower court ordered him to file a statement of matters complained of. Appellant did not comply with this directive, and on July 8, 1980 the lower court again requested such a statement. Not having received it by August 26, 1980, the lower court issued its opinion stating that it is not certain of the basis of the appeal. No statement of matters complained of appears in the record before us, which was filed with this court on August 27, 1980. We agree with the Commonwealth’s view that appellant did not comply with Rule 1925(b).

We are without a trial court opinion because of appellant’s failure to comply with Rule 1925(b). We find it difficult to review the case adequately without an opinion and accordingly, will treat the failure to comply as a waiver. Cf. Commonwealth v. Monroe, 281 Pa.Super. 328, 422 A.2d 193 (1980), n.l, in which we did not treat non-compliance with the Rule as a waiver.

Judgment of sentence affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    439 A.2d 826
    Edward ANSKIS, Appellant, v. Selma FISCHER and Louis Fischer and Michael Lenahan and Sears, Roebuck & Company.
    Superior Court of Pennsylvania.
    Argued April 6, 1981.
    Filed Jan. 8, 1982.

      Harry J. Oxman, Philadelphia, for appellant.
    Jay E. Plunk, Jr., Philadelphia, for Fischer.
    Gerard Bruderle, Philadelphia, for Lenahan, et al.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   OPINION

PER CURIAM:

Following trial in this trespass case, the jury returned a $150,000 verdict for appellant against the additional defendants, Michael Lenahan and Sears, Roebuck & Co., and found for defendants, Selma and Louis Fischer, against appellant. The additional defendants promptly moved to have the verdict molded because appellant’s claim was barred under the Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, art. Ill, § 303, as amended; 77 P.S. § 481. The lower court granted their motion and entered the following order:

AND NOW, this 13th day of November, 1978, upon Motion made on behalf of the additional defendants, it is hereby ORDERED and DECREED that the verdict entered against additional defendants, Michael Lenahan and Sears, Roebuck, & Co., be and hereby is molded in favor of said additional defendants in accordance with the Pennsylvania Workmen’s Compensation Act, and further that any judgment entered thereon hereafter be marked “satisfied”.

Appellant subsequently filed a motion to remove the order of November 13 and a motion for a new trial. On March 3, 1980, the lower court denied those motions. This appeal followed.

It is well settled that an order refusing a new trial or judgment n. o. v. is not appealable until it has been reduced to judgment and docketed. See, e.g., Levin v. Desert Palace, Inc., 291 Pa.Superior Ct. 408, 435 A.2d 1292 (1981); Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa.Superior Ct. 402, 435 A.2d 1288 (1981); Gaertner v. F. Jay Smith, Inc., 291 Pa.Superior Ct. 341, 435 A.2d 1257 (1981). Accord Hayes v. Southeastern Pennsylvania Transportation Authority, 292 Pa.Superior Ct. 470, 437 A.2d 770 (1981). “Similarly, an appeal from an order denying a motion to remove a nonsuit is interlocutory and nonappealable.” Levin v. Desert Palace, Inc., supra 291 Pa.Super. at 408, 435 A.2d at 1292, quoting Thomas M. Durkin & Sons, Inc. v. Nether Providence Town ship School Authority, supra 291 Pa.Super. at 404, 435 A.2d at 1289. The denial of appellant’s motion for a new trial was not reduced to judgment, and, therefore, is clearly not appealable at this time. The denial of appellant’s motion to remove the order molding the verdict is analogous to an order refusing to remove a nonsuit, an order which must also be reduced to judgment before it may be appealed. Accordingly, because judgment has not been entered on the docket, we must quash this appeal.

Appeal quashed.

VAN der VOORT, J., concurs in the result.


author: PER CURIAM: MONTEMURO, Judge,

text:
    439 A.2d 827
    COMMONWEALTH of Pennsylvania, v. James PAPARIELLA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed Jan. 8, 1982.

      H. David Rothman, Pittsburgh, for appellant.
    John L. Brown, Jr., Assistant District Attorney, Beaver, for Commonwealth, appellee.
    Before PRICE, MONTEMURO and DiSALLE, JJ.
   PER CURIAM:

On December 10, 1970, a jury found appellant, James Papariella, guilty of adultery and bastardy. On March 31, 1971, he was sentenced to pay the costs of prosecution, the lying-in-expenses, and child support in the sum of $10.00 per week; said payments to be made through the adult probation office. In a modification agreement entered into by appellant on October 31, 1973, and adopted by the court below on December 19, 1973, appellant agreed to an increase of child support in the sum of $80.00 per month; said payments to be made through the Collections Department, Domestic Relations Division of Butler County.

In early March of 1980, appellant filed a Petition for Relief under the Post Conviction Hearing Act (P.C.H.A.), alleging that he received ineffective assistance of counsel at his 1970 trial. The lower court denied the petition on the sole ground that appellant was not eligible for relief under the P.C.H.A. because the petition did not aver that appellant was under a sentence of imprisonment, on parole, or on probation. The court noted that it would serve no purpose to permit appellant to amend his petition because, according to the court, the record clearly established that appellant was not on probation or parole when the petition was filed. The P.C.H.A. provides in pertinent part:

§ 1180-3 Eligibility for relief To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under Section 5 and must prove the following:

* * * * * *

(b) That he is incarcerated in the Commonwealth of Pennsylvania under a sentence of death or imprisonment, or parole or probation.

The lower court’s order must be reversed. Contrary to the lower court’s finding, at the time the Petition was filed appellant was on probation. Although not stated in so many words, clearly the import of the original sentence was to place appellant under the continuing jurisdiction of the court (in effect, on “probation”) so long as support payments remained due and owing. See 42 Pa.C.S.A. §§ 6708, 6710. Com. ex rel. Wheeler v. Wheeler, 274 Pa.Super. 478, 418 A.2d 506 (1980). In fact, the court’s order of December 19, 1973, continued his bond. The 1973 modification agreement only altered the amount and method of appellant’s payment of child support; his probation was not affected by the agreement. Under the circumstances, then, we are of the opinion that appellant has satisfied the requirements of the Post Conviction Hearing Act and is therefore entitled to a hearing on his petition.

Order reversed and matter remanded.

MONTEMURO, J., files a dissenting opinion.

Decision was rendered prior to DiSALLE, J., leaving the bench of the Superior Court.

MONTEMURO, Judge,

dissenting:

I dissent from the holding of the majority opinion. This case presents an interesting issue for our review. The appellant was sentenced under 18 P.C. § 4506, on charges of Adultery and Bastardy and was ordered to support the child born on March 20, 1970, in the amount of $10.00 per week. In December of 1973, the court below adopted an agreed upon modification of the original order, calling for payments of $80.00 per month.

In early March of 1980, appellant filed his Petition for Relief Under the Post-Conviction Hearing Act, alleging ineffective assistance of counsel at the 1970 trial.

The lower court denied the petition on the grounds that appellant was not on “probation or parole” when the petition was filed. I agree with the lower court, and I dissent from the majority opinion in this matter.

The precise nature of support hearings is conceded to be a confusing blend of criminal and civil law. Although the present trend strongly favors the view that a civil approach is preferable, we must deal here with the law as it existed in 1970, when the case was tried and decided.

I cannot agree, however, that the interplay of 42 Pa.C.S.A. § 6710 with 42 Pa.C.S.A. § 6705 can amount to a holding that former law 18 P.S. 4505 was a criminal conviction. Section 6710 merely provides for ongoing jurisdiction of support orders. Section 6705 simply adds that wilful refusal of defendant to respond to process may, after hearing, lead to imprisonment for contempt. Ongoing orders of court and holdings in contempt can be civil as well as criminal. The matter requires much more analysis than the majority opinion provided, and the case of Comm. ex rel. Wheeler v. Wheeler, 274 Pa.Super. 478, 418 A.2d 506 (1980), upon which it relies touches the issue only peripherally.

A brief discussion of how, in general, civil and criminal contempt proceedings may be distinguished is set forth in 1 Standard Pa. Practice, pp. 409-10:

§ 5 Civil and Criminal Contempts.—Contempt proceedings are classified into civil and criminal. The dominant purpose of the proceeding determines whether it is civil or criminal. A proceeding instituted solely for the purpose of vindicating the dignity, and preserving the power, of the court is criminal and punitive in its nature and is usually instituted by the court in the interest of the general public, not of any particular individual or suitor. Those instituted by private individuals for the purpose, mainly, if not wholly, of protecting or enforcing private rights in which the public has no special interest are remedial or civil in their nature, rather than criminal or punitive.
Where the act complained of consists merely of the refusal to do or refrain from doing some act commanded or prohibited for the benefit, primarily at least, of a party litigant, proceedings to ascertain such contempt and enforce obedience to the order or decree have ever been deemed akin to execution process and are civil, rather than criminal, in their nature. The factors generally said to point to a civil contempt are these: (1) where the complainant is a private person as opposed to the government or governmental agency; (2) where the proceeding is entitled in the original injunction action and filed as a continuation thereof as opposed to a separate and independent action; (3) where holding the defendant in contempt affords relief to a private party; (4) where the relief requested is primarily for the benefit of the complainant; and (5) where the acts of contempt complained of are primarily civil in character and do not of themselves constitute crimes or conduct by the defendant so contumelious that the court is impelled to act on its own motion. (Citations omitted; emphasis supplied)

Under these criteria the civil nature of support actions would seem to be paramount. Certainly they were, even in an earlier time, instituted primarily for the purpose of protecting the private right of a child for support from its parent, and not for the “sole” purpose of vindicating the dignity of the court. There is, however, the public interest in keeping children off the welfare rolls of the state by assuring the child’s support from private parental funds.

The wording of 18 P.S. § 4506, under which appellant was convicted, does provide for a fine of $100.00, but the gist of the “sentence” is provision for the child’s rearing, and no criminal sanctions appear in the wording:

Such man, being thereof convicted, shall be sentenced, in addition to the fine aforesaid, to pay the expenses incurred at the birth of such child, and if such child is born dead, or shall die during continuance of the order for the maintenance of said child, to also pay the reasonable funeral expenses thereof, and to give security ... to perform such order for the maintenance of the said child, as the court shall direct. (Repealed by Act 1972, Dec. 6, P.L. No. 334 § 5)

An interesting contrast is provided by the wording of former statute 18 P.S. § 4323(c), where in pertinent part, the provision states:

. . . instead of imposing the fine provided by this title, or in addition thereto, the court . . . may make an order . . . directing the defendant to pay a certain sum periodically, for such time and to such person as the court may direct. The court shall have the power to suspend the sentence provided in this section, and release the defendant from custody on probation . . .

Certainly, this wording does appear to be couched in criminal terms, and a man convicted on those charges could convincingly point to wording that specifically makes his support payments in lieu of a fine to the court and provides for his release on probation during pendency of the payments. Without deciding the matter, I reflect that an appellant convicted under 18 P.S. § 4323 would have more reason to expect relief under the P.C.H.A. than the appellant in the instant action.

The case of Commonwealth v. Dunnick, 204 Pa.Super. 58, 202 A.2d 542 (1964) agrees with an interpretation distinguishing among statutes designed to produce support for children born out of wedlock.

The offense of fornication and bastardy and the offense of failure to support a child born out of lawful wedlock are separate offenses.
Paternity of the child is an issue which must be proven by the Commonwealth in both cases, but in bastardy it is the issue while in failure to support a child born out of lawful wedlock the issue is the failure to support, which occurs not at the approximate time nor as a result of the fornication, but at a time after the child is born, and as a result of the defendant’s conduct thereafter. The difference of these crimes is further emphasized by the fact that bastardy carries no punishment except an order to support the child and is, in effect if not in law, more civil than criminal, while the crime of failure to support carries with it a penalty of fine and imprisonment. Id. at 544 (Emphasis partially original, partially supplied)

I conclude, therefore, that the appellant in this matter simply has no right of appeal under the criminal provisions of the P.C.H.A., which require for eligibility that the appellant alleges that “he is incarcerated in the Commonwealth of Pennsylvania under a sentence of death or imprisonment, or parole or probation.” 19 P.S. § 1180-3. This appellant is merely paying an ongoing support order for maintenance of a child. His right to appeal in a civil action expired more than a decade ago. I therefore must dissent from the holding of the majority.

      . Appellant’s sentence reads as follows: “AND NOW, March 31, .1971 defendant is sentenced to pay costs of prosecution, pay MAXINE ANDERSON the sum of $136.37 lying-in-expenses and hospital and doctor bills to date and pay mother of child $520 for maintenance and the sum of $10.00 per week hereafter and enter own bond in the sum of $1.00 to comply as the law directs and stands committed until sentence is complied with. Payments to be made through Probation Office. If the child should die, deft, to pay reasonable funeral expenses.”

      . The Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., as amended by the Act of June 26, 1980, P.L. 265, No. 77, § 2, 19 P.S. § 1180-1 et seq. (Supp. 1981-82).

      . Section 6710 provides, inter alia:
      The court making the order shall at all times maintain jurisdiction of the cause for the purpose of enforcement of the order and for the purpose of increasing, decreasing, modifying or rescinding such order, without limiting the right of a complainant to commence additional proceedings for support in any county wherein the defendant residés or where his property is situated.

      . Appellant was originally charged with both Adultery and Adultery and Bastardy. However, evidence was presented that the acts of adultery took place in a county other than the county in which the trial took place, and, therefore, the forum lacked jurisdiction on that issue. The substitution of “Adultery and Bastardy” for “Fornication and Bastardy” simply implies that putative father was a married man rather than a single man at the time of the act which resulted in the birth of a child. See former statute 18 P.S. 4505.


author: SUGERMAN, Judge:

text:
    439 A.2d 831
    Elizabeth ASTILLERO v. Leslie SHOTWELL (Appellant).
    Superior Court of Pennsylvania.
    Submitted June 29, 1979.
    Decided Jan. 5, 1982.

      Michael D. Fioretti, Philadelphia, for appellant.
    Thomas F. Goldman, Feasterville, for appellee.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       Judge JOHN Q. STRANAHAN, of the Court of Common Pleas of Mercer County and Judge LEONARD SUGERMAN, of the Court of Common Pleas of Chester County, Pennsylvania, are sitting by designation.

   SUGERMAN, Judge:

Appellant (“Father”) has appealed from an order entered by the lower court, increasing the amount payable under an earlier order for the support of Father’s three children. The facts necessary to our disposition are not in dispute.

In April, 1975, the parties agreed to the entry of an order directing Father to pay the sum of $65.00 weekly to Appel-lee (“Mother”) for the support of the parties’ three children.

Mother thereafter filed a petition to increase that order, and on February 23, 1977, at hearing, the lower court increased the order to the sum of $71.00 weekly, apparently temporarily, and thereupon continued the hearing at the Mother’s request, in order that Father might provide his income tax returns for inspection by Mother and the court.

The continued hearing was reconvened on May 12, 1977, and thereafter, the court affirmed its earlier order increasing the first noted order from $65.00 to $71.00 weekly without further increase.

Apparently dissatisfied, Mother filed a petition for reconsideration with the lower court, asking the court to consider the earnings of Father’s spouse, in accordance with our decision in Commonwealth ex rel. Travitsky v. Travitsky, 230 Pa.Super. 435, 326 A.2d 883 (1974).

A hearing was held on April 11, 1978 upon Mother’s petition for reconsideration and subsequent to the hearing, the court increased its earlier order for support of the children from $71.00 to $77.00 per week.

On appeal Father advances two contentions. He first argues that the lower court erred in refusing to consider the income of Mother’s second spouse and the sum he was contributing to the support of the children. Father also contends that regardless of whether the lower court considered the income of Mother’s second spouse and the extent to which it was used to support the children, the record does not warrant an increase in the order from $71.00 to $77.00. We address the issues seriatim.

I.

At the hearing on Mother’s petition for reconsideration, Father’s counsel called Mother’s second spouse as a witness, and asked him whether he was employed. Mother’s counsel objected to the question upon the ground of relevancy. Following moderately extensive argument including counsels’ interpretation of our decision in Travitsky, supra, and an offer of proof by Father’s counsel, further argument ensued and finally the court said to Father’s counsel, in apparent response to the objection:

“THE COURT:
I will permit you some latitude. If it gets out of hand, I will have to stop you.”

Father’s counsel then resumed questioning Mother’s second spouse and the following ensued:

“Q. [By Father’s counsel] What is your weekly income . . . ?
MR. MAIER: [Mother’s counsel] I object.
THE COURT: Sustained.”

Father’s counsel then continued the examination of Mother’s spouse:

“Do you, sir, contribute to the care and maintenance of your wife’s three older children?
MR. MAIER: Are these the subject matter of this petition we are talking about?
MR. SHINGLES: Yes.
THE WITNESS: Do I contribute?
MR. SHINGLES: Yes.
THE WITNESS: Yes, to a degree, I would say so.”
R. 47a-48a.

Although no objection was interposed to this line of questioning, Father’s counsel unaccountably failed to pursue it and following the witness’ last answer, above commenced examining the witness about other matters not germane to the issue before us.

“A. We are supported by my husband’s salary and ... the support money that I get for the children.” R. 6a. (Emphasis added).

As a result of counsel’s failure to ask the witness to expand upon his answers, the court’s earlier ruling refusing to permit the witness to testify concerning his weekly income, there is no evidence in the record to permit the lower court, or this court on appeal, to determine the sum Mother’s spouse contributed to the support of the children.

It is clear that the lower court’s ruling was in error. In a similar setting, we said in Commonwealth ex rel. Mainzer v. Audi, 266 Pa.Super. 122, 403 A.2d 124:

“Although appellant’s present husband has no duty to support the children of appellant’s first marriage and his separate assets and earnings may not be considered part of appellant’s financial resources the court could properly consider the new husband’s voluntary contributions to the family budget in computing appellant-mother’s “ability to pay.” See Commonwealth ex rel. Travitsky v. Travitsky, 230 Pa.Super. 435, 326 A.2d 883 (1974). Accordingly, the lower court did not err in allowing the testimony.” Id., 266 Pa.Super. at 124, 403 A.2d at 125.

Accord: Commonwealth ex rel. Hagerty v. Eyster, 286 Pa. Super. 562, 429 A.2d 665 (1981).

The lower court, having once permitted Father’s counsel to explore the area, should have permitted him to elicit testimony concerning the income of Mother’s then current spouse.

While the income of Mother’s second spouse may well have been relevant for the purpose of testing the second spouse’s credibility, we are again reminded that there is no duty imposed upon Mother’s second spouse to support the children of his wife’s earlier marriage, and accordingly, his income, for the purpose of determining the sums he may contribute to the support of such children, is not relevant.

The relevant inquiry, as we have earlier observed, is the sum, if any, actually contributed by the second spouse to the support of the children. Commonwealth ex rel. Mainzer v. Audi, supra. At bar, Father’s counsel began to explore the subject, without objection and without interference from the court. Although we are at a loss to understand the reason underlying counsel’s failure to continue his examination of Mother’s spouse so as to bring before the court the specific amount of the sums contributed by Mother’s spouse to the support of the children, we must assume that he rested that decision upon some rational ground. As he was not foreclosed from doing so, he cannot now be heard to complain.

II.

Appellant also argues that the record of the hearing upon Mother’s petition for reconsideration itself does not support an increase in the order from $71.00 to $77.00 weekly. Underlying Appellant’s argument is his contention that the lower court based the increase upon the testimony of Father’s second spouse, and that such testimony did not warrant an increase in the order.

Father’s second spouse testified that she was employed as a medical assistant, earning a net weekly salary in the sum of approximately $175.00, which she deposits in a checking account held jointly by Father and her. While the spouse’s testimony is somewhat confused with respect to the sum contributed by her to Father’s expenses, the lower court could have easily and properly concluded that she made some contribution. In light of our scope of review, we cannot say that the lower court abused its discretion.

Affirmed.

      . We note that each of the three hearings was conducted by a different judge of the Family Division of the Court of Common Pleas of Philadelphia County. We, of course, are not unmindful of the case load constantly confronting the Family Division in Philadelphia. Nevertheless, we deem it necessary to iterate the admonition most recently set forth in Commonwealth ex rel. Caswell v. Caswell, 280 Pa.Super. 359, 421 A.2d 762 (1980):
      “... the practice of granting a rehearing before a judge other than the one who heard the case in the first instance is not in the best interest of the parties. Brake v. Brake, 271 Pa.Super. 314, 316 n. 2, 413 A.2d 422, 423 n. 2 (1979); Commonwealth ex rel. Schul-berg v. Hirsch, 236 Pa.Super. 179, 344 A.2d 530 (1975); Bell v. Bell, 228 Pa.Super. 280, 323 A.2d 267 (1974).

        When the original judge is available, he or she should be the one to whom all questions of modification are directed, as it is such judge who is most familiar with the case and most qualified to determine whether a modification is warranted under the circumstances. Commonwealth ex rel. Schulberg v. Hirsch, supra [236 Pa.Super. at 182, 344 A.2d at 531]; Commonwealth ex rel. D‘Alfonso v. D’Alfonso, 181 Pa.Super. 71, 121 A.2d 900 (1956).” Id. 280 Pa.Super. at 364, 421 A.2d at 765.

      . At the date of the hearing held on May 12, 1977, both Father and Mother were remarried to other spouses.

      . When the court expressed some concern about the relevance of the answer to be elicited, Father’s counsel said:

        “MR. FIORETTI: Your Honor, Travitsky says we can look at the contribution of the second spouse to determine the father’s ability to pay. What Mr. Shingles and I am saying to the court is, if that is so, based on the Equal Rights Amendment and based on the situation we are in now, you should also consider the contribution of a second husband to that mother, to look at what he contributes to determine what her actual need is.” R. 44a.

      . Earlier in the hearing, Mother who was then unemployed was asked how she and the three children were supported. She responded:

      . We appreciate that the lower court at the time of hearing did not have the benefit of our decision in Commonwealth ex rel. Mainzer v. Audi, supra, as our decision was filed thirteen months subsequent to the date of the hearing. However, the principle is implicit in our decision in Travitsky, as Father’s counsel properly pointed out in argument to the lower court. We also observe that although the instant hearing was convened to hear Mother’s petition for reconsideration in order to put before the lower court evidence of the contributions of Father’s second spouse, in accordance with Travit-sky, the court did not narrowly limit the hearing to that single issue but permitted Father’s counsel to explore the contributions made by Mother’s second spouse to the parties’ children.

      . Hypothetically, if the second spouse received an annual income in six figures, and contended that he contributed perhaps $10 weekly to the support of the three children, and Father’s counsel had reason to believe that the second spouse contributed much more to the support of the children, then testimony concerning the second spouse’s income may be relevant for the purpose of impeaching the second spouse’s testimony relating to the sums he contributed. See, generally, McCormick on Evidence (2d ed. 1972) § 33. Such testimony might also be relevant in determining Mother’s need for support for the Children. However, as the second spouse is under no obligation to provide any support to the children of Mother’s earlier marriage, Commonwealth ex rel. Mainzer v. Audi, supra, his income is not relevant to the general question of the amount required to support the children.

      . We are reminded, as we observed in Commonwealth ex rel. Cas-well v. Caswell, supra:

        “When reviewing a proceeding of this nature, our scope of review is limited, and we will not interfere with the determination of the court below unless there has been a clear abuse of discretion.¹ Commonwealth ex rel ReDavid v. ReDavid, 251 Pa.Super. 103, 380 A.2d 398 (1977); Bell v. Bell, 228 Pa.Super. 280, 323 A.2d 267 (1974), both quoted with approval in Brake v. Brake, supra, 271 Pa.Super. at 315, 413 A.2d at 423; Commonwealth ex rel. Hartranft v. Hartranft, 267 Pa.Super. 572, 407 A.2d 389 (1979). A finding of abuse is not lightly made but only upon a showing of clear and convincing evidence. Commonwealth ex rel. Hartranft v. Hartranft, supra, 267 Pa.Super. at 573, 407 A.2d at 390; Commonwealth ex rel. McQuiddy v. McQuiddy, 238 Pa.Super. 390, 358 A.2d 102 (1976).” Id. 280 Pa.Super. 365, 421 A.2d at 765. (Footnote omitted)


author: JOHNSON, Judge:

text:
    439 A.2d 1175
    COMMONWEALTH of Pennsylvania, v. Rodney S. BEY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 30, 1981.
    Filed Jan. 5, 1982.

      Jack J. Bulkin, Philadelphia, for appellant.
    Ann Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, P. J., and HESTER and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from the judgment of sentence of March 26, 1979.

Appellant was convicted of aggravated assault, robbery and possession of an instrument of crime on December 13, 1978, following a trial by jury. The lower court denied post verdict motions which raised, as improper, the court’s admission of testimony regarding defendant’s post-arrest silence. Appellant now appeals from the judgment of sentence imposing consecutive sentences of ten to twenty years for robbery and two and one-half to five years for the weapons offense. For the reasons set forth herein, we affirm.

On June 17, 1978, at approximately 4:00 A.M., Harold Jackson, the victim, was en route from Gino’s Restaurant, where he worked, to his home, after accompanying his employer to the train station and stopping at an amusement center on Market Street. He encountered a man who demanded money, tapes, and ultimately, Jackson’s radio. The victim gave the man all of his money, eighty cents, but refused to relinquish the radio. The same man then shot Jackson and fled. As a result of the shooting, the victim is permanently paralyzed from the waist down.

Appellant, who had been stopped and his appearance noted by police at the scene on the morning of the crime, was arrested six days later, based on the victim’s description of his assailant.

Appellant raises three issues on appeal. First, he argues that the testimony by the arresting officer concerning Appellant’s post-arrest silence was improperly admitted to rebut trial testimony concerning Appellant’s cooperation. Second, Appellant asserts that the trial court erred in permitting the Commonwealth to elicit testimony from the victim’s mother in violation of the rules of criminal procedure. Third, Appellant states that he was denied effective assistance of counsel because counsel failed: (a) to raise the issue of sufficiency of the identification evidence; (b) to move to suppress information extracted at the scene on the morning of the crime from Appellant, i. e., Appellant’s name and address, and a description of the clothes he was wearing on the morning of the shooting; (c) to object to the prosecution witness’ reference to a photograph of Appellant as being of “the upper torso”; and (d) to raise, as violative of the attorney-client privilege, the notice of alibi defense requirement in Pa.R.Crim.P. 305 C(l)(a).

Appellant’s first issue, that the admission of his post-arrest silence creates in the minds of the jurors an adverse inference and thus constitutes harmful error, is contradicted by a reading of the record below. The court issued the appropriate cautionary instructions to the jury at the time of charge which carefully limited the conclusions to be drawn from the evidence regarding Appellant’s post-arrest silence. As was the case here, such testimony could be elicited to refute contrary statements volunteered by the defendant to demonstrate his cooperation at the time of questioning. That testimony could be, and was, used solely to impeach Appellant’s trial testimony concerning his post-arrest conduct. United States v. Allston, 613 F.2d 609, 611 (5th Cir. 1980). In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court, in distinguishing that factual situation (where the prosecution improperly referred to defendant’s silence to impeach the exculpatory testimony offered at trial) from a hypothetical situation like the instant case, set out what constitutes an allowable use of Appellant’s post-arrest silence:

It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest, [citation omitted]

Id. at 619-20 n. 11, 96 S.Ct. at 2245.

In United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975), which is cited by the Court in Doyle, the United States Court of Appeals for the Fifth Circuit held that the defendant’s “Miranda silence was admissible for the purpose of rebutting the impression which he [the defendant] attempted to create: that he cooperated fully with the law enforcement authorities.” Id. at 1383. Similarly, in Allston, where defendant, in an effort to create the impression that he had cooperated fully, voluntarily raised the issue of his post-arrest behavior, the court held that he had therefore “opened the door” to a full development of the subject. 613 F.2d at 611.

The record does not support Appellant’s contention that Commonwealth v. Easley, 483 Pa. 337, 396 A.2d 1198 (1979), governs. In Easley, contrary to the facts of the current case, the prosecutor did comment adversely:

“Now, at that time does he tell the police? He has the right to remain silent. You have heard that. You know that. But he told us here he is going to tell the police the whole thing was an accident. Does he ever tell anybody that?
“Now today he does. After he has access to all these notes for five or six months.”

Id., 483 Pa. at 342, 396 A.2d at 1201. The court found that, in so commenting, the prosecutor was suggesting to the jury that they could infer guilt from defendant’s silence. The prosecutor was not merely casting doubt on the accused’s story of cooperation.

Here, Appellant Bey sought to demonstrate his cooperation by testifying that he had relayed all relevant information on his activities that night to the arresting officer. In response, the prosecution called that arresting officer and asked:

Q. Now, detective, at any time that night did the defendant tell you he had been to Cyrano’s?
A. No, he did not.
Q. Did the defendant tell you that he had been at 16th and Market Street at a bar?
A. No, he did not.
Q. Did he tell you he had been to 18th and Carpenter at a disco party?
A. No, he did not.
Q. Did he tell you he had been at the penny arcade up at
13th and Market?
A. No, he did not.
Q. Did he tell you he had been at Steven Gladney’s, 1008
South 17th Street?
A. No, he did not.
Q. Did he tell you that he had been at Frank Green’s
house on Montrose Street.
A. No, he did not.
Q. What did he tell you?
A. He chose to remain silent. That was the end of the
interrogation and interview.

This is clearly permissible rebuttal testimony on the issue of cooperation.

Similar conclusions from different fact situations were enunciated in Commonwealth v. Mobley, 267 Pa.Super.Ct. 29, 405 A.2d 1287 (1979) and Commonwealth v. Stakley, 243 Pa.Super.Ct. 426, 365 A.2d 1298 (1976). Where defendant himself opens the door, to what otherwise might be objectionable testimony, the Commonwealth may probe further to determine the veracity of the trial statement. See United States v. Daniels, 617 F.2d 146 (5th Cir. 1980).

In affirming the judgment of the lower court, we hold that where the defendant himself raises the issue of cooperation following arrest, and himself volunteers that he told all to the police, the prosecution may offer the testimony of the arresting officer to rebut that testimony. Statements to the effect that the defendant did, or did not, exercise his right to remain silent are allowable provided cautionary instructions are then given to the jury regarding both the purpose for which that information has been elicited and any conclusions which may be drawn from it.

Appellant raises as his second issue an alleged violation of Pennsylvania’s pretrial discovery procedures. At trial, without prior notice to the Appellant of the nature of the testimony to be offered, the prosecution called the victim’s mother who testified that Appellant threatened her son at the preliminary hearing.

The Commonwealth is under no obligation to disclose the names of all of its witnesses to the defendant. Upon request by the defendant, and at the discretion of the court, the Commonwealth may provide defendant access to the names and addresses of eyewitnesses. Since the victim’s mother was not an eyewitness, even this discretionary provision is inapplicable here.

Appellant also argues that the presentation of the “surprise” witness violated an informal agreement between the Philadelphia District Attorney and the Defender Association of Philadelphia. We can see no harm done to Appellant, even had he demonstrated the alleged violation. In granting a continuance, the court below permitted Appellant to obtain witnesses and to offer evidence to rebut the mother’s testimony, but denied the motion for a mistrial. At the conclusion of the rebuttal testimony defense counsel stated that she was satisfied that sufficient evidence had been offered to cover the issue. Under Rule 305, had the defendant been able to show prejudice, a continuance, as was granted here, would be the proper remedy. See Commonwealth v. Bederka, 459 Pa. 653, 658, 331 A.2d 181, 183 (1975).

The final issue we confront is the familiar claim of ineffective assistance of counsel. When this court is confronted with an ineffective assistance of counsel claim, a two-step analysis is required. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Jennings, 285 Pa.Super.Ct. 295, 427 A.2d 231 (1981). The first step is to determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Jennings, id. 285 Pa.Super.Ct. at 298, 427 A.2d at 232. If the issue is deemed to be of arguable merit, then counsel’s actions must be examined to determine if counsel’s actions or inactions had some reasonable basis. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980); Commonwealth v. Jennings, id. 285 Pa.Super.Ct. at 298-99, 427 A.2d at 232. Where there is no arguable merit, we need go no further. See Commonwealth v. Evans, id., 489 Pa. at 91, 413 A.2d at 1028.

Appellant first argues that the evidence presented was insufficient to support the verdict rendered based on inconsistencies between the victim’s identification testimony at the preliminary hearing and his trial testimony. As this is an issue of credibility, and, as issues of credibility are properly left to the trier of fact for resolution, we will not now try to examine those considerations. Commonwealth v. Whack, 482 Pa. 137, 140, 393 A.2d 417, 419 (1978); Commonwealth v. Duncan, 473 Pa. 62, 68, 373 A.2d 1051, 1053 (1977). We find this argument to be without merit.

The second matter raised as evidence of ineffectiveness of counsel is the failure to move to suppress information “extracted” from Appellant during the routine police investigation at the scene of the crime. What was extracted was Appellant’s name and description as noted by the investigating officer. No arrest or search of Appellant was made at that time. However, even had Appellant been in custody at the time the “extraction” occurred, routine identification questions concerning defendant’s name and the perceptions of a police officer about defendant’s clothing would not have constituted suppressible evidence. See Commonwealth v. Davis, 460 Pa. 37, 331 A.2d 406 (1975). Neither the question asked nor the description noted were calculated or expected to produce an incriminating response. Id., 460 Pa. at 40, 331 A.2d at 407. This, too, is without merit.

There was no reversible error made in allowing, without objection, police testimony that the victim had identified Bey from photographs. Appellant’s conjecture that some of the jury might have thought the photographs were mug shots does not meet the test articulated in Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972):

The suggestion that any reference to a defendant’s photograph is so prejudicial that an inflexible rule or reversal must apply is explicitly rejected. We hold that after the reference to a photograph the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity. A mere passing reference to photographs from which a reasonable inference of prior criminal activity cannot properly be drawn does not invalidate the proceedings since there has been no prejudice as a result of the reference[.]

Id., 448 Pa. at 181, 292 A.2d at 375. A juror could not reasonably infer from the trial testimony that Mr. Bey had any criminal record. In fact, in this case, the prosecution elected not to introduce evidence of a prior record. The situation here is similar to that in Commonwealth v. Carlos, 462 Pa. 262, 341 A.2d 71 (1975). The photos were never identified as mug shots or as photographs from a police file, only as photographs of the upper torso. In the instant case, the prosecution neither displayed Appellant’s picture to the jury, nor marked or introduced it into evidence. Therefore, we find this argument to be without merit as well.

Appellant’s final attempt to show ineffective assistance of counsel focuses on a claim that the alibi notice provision of Rule 305 violates the attorney-client privilege. Appellant’s failure to include the name of his only alibi witness in the alibi notice could have precluded his calling that witness. However, here, the Appellant was allowed the benefit of his alibi.

Appellant cites no authority to support his claim that his right to expect an attorney-client privilege regarding his communication with trial counsel has been violated by the application of the mandatory disclosure of an alibi defense. Apparently, Appellant feels that identifying alibi witnesses is tantamount to revealing secrets which a defendant has confided to his attorney. This assertion is groundless. Counsel is not ineffective for failing to pursue a frivolous issue. Commonwealth v. Mitchell, 477 Pa. 274, 277, 383 A.2d 930, 931 (1978).

Appellant claims that his questioning by the district attorney at trial made his alibi defense appear incomplete, inconsistent and incorrect. We agree, but point out that this is the risk a witness assumes when he takes the stand. Discrepancies between Appellant’s alibi notice and his trial testimony are within the limits of a valid cross examination. Pa.R.Crim.P. 305 C(l)(g) states:

A defendant may testify concerning an alibi notwithstanding that the defendant has not filed notice, but if the defendant has filed notice and testifies concerning his presence at the time of the offense at a place or time different from that specified in the notice, the defendant may be cross-examined concerning such notice.

Appellant argues that he told counsel more than counsel chose to include in the alibi notice and because of that, the notice was lacking, which resulted in Appellant’s position being compromised on the stand. Appellant provides no evidence in support of this theory; therefore, we must consider the allegation to be without merit or substance.

We agree with Appellant that the purpose of the alibi notice is to insure a fair trial, as well as to permit the Commonwealth to begin preliminary investigations. We suggest that this is what has occurred here, i.e., a fair trial at which defendant was convicted by a jury based on the facts presented.

We conclude that the court below did not commit reversible error in admitting testimony of post-arrest silence or of a witness not previously identified to the defense; nor is there any basis for a claim of ineffective assistance of counsel.

The judgment of sentence of March 26, 1979, is affirmed.

      . 18 Pa.C.S.A. § 2702.

      . Id., § 3701.

      . Id., § 907.

      . The court merged the aggravated assault and robbery convictions for purposes of sentencing.

      . Appellant’s Brief does not specify which rule he feels has been violated; however, we can assume from the surrounding text that Appellant is referring to Pa.R.Crim.P., Rule 305 D, 42 Pa.C.S.A. which states:

        Continuing Duty to Disclose

      If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material or witness.

      . THE COURT: Ladies and gentlemen of the jury, the testimony of earlier silence on the . part of the defendant, Rodney Bey, if you believe it, cannot be used to impeach the exculpatory story that Mr. Bey told on the witness stand but can be received by you for a limited purpose only, that is, to challenge the defendant’s contention that he told the detectives the version of the story that he told you in the courtroom. Thus this testimony may be received by you for the limited purpose that I have indicated.
      Is that acceptable, Ms. Greenlee, under the circumstances?
      MS. GREENLEE: Yes, Your Honor.

      . Normally, what would have been raised here is the question of prejudice to defendant which resulted because of that admission. Because Appellant did not raise the issue, it is waived.

      . The rules governing pretrial discovery and inspection are set out in Pa.R.Crim.P., Rule 305, 42 Pa.C.S.A. See Rule 305 B which is pertinent to this discussion.

      . Rule 305 B(2)(a).

      . Id. at E.

        Remedy

      If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

      . Pa.R.Crim.P., Rule 305 C (l)(a) prescribes as mandatory disclosure by the defendant,
      Notice of Alibi Defense: A defendant who intends to offer the defense of alibi at trial shall, at the time required for filing the omnibus pretrial motion under Rule 306, file of record notice signed by the defendant or the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense. Such notice shall contain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of witnesses whom the defendant intends to call in support of such claim.

      . See Pa.R.Crim.P., Rule 305 C (l)(d).

      . Had the cross examination been improper, which it was not, defendant, by failing to object at trial, has waived the issue. Commonwealth v. Clair, 458 Pa. 418, 422, 326 A.2d 272, 274 (1974).


author: WATKINS, Judge: BROSKY, Judge,

text:
    439 A.2d 1181
    Barbara MARTER, Appellant, v. Alan J. ROSS.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1980.
    Filed Jan. 5, 1982.

      Ellen Sweeney, Philadelphia, for appellant.
    Melvin Greenberg, Philadelphia, for appellee.

      Before BROSKY, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, Family Court Division, by the appellant, Barbara Marter, which directed the appellee, Alan J. Ross, to pay $60.00 per week for the support of the parties two children.

The parties were married on October 12, 1960 and were divorced on May 25, 1977. The two children, aged nine and six at the time of the hearing, have resided with the appellant-mother since the separation of the parties. The appellant-mother remarried on June 2, 1978.

On May 10, 1979, the appellant-mother petitioned for the support of the children seeking $160 per week. After a hearing, the support order was entered on September 25, 1979 in the amount of $60.00 per week. A petition for reconsideration was filed on October 17, 1979, and denied on November 26, 1979. Two appeals were filed, one from the order of support dated September 25, 1979 and one from the order refusing reconsideration on November 26, 1979. These appeals were consolidated for appeal to this Court.

The court below found that the appellee’s total potential net income was $300.00 per week and that the appellant had a net income of $300 per week.

Although there was no evidence of the earnings of the appellant’s husband or whether or not he contributed to the children’s support, the court below inferred that he had a substantial income from various businesses and real estate holdings. This speculation by the court below that any of such assets were used to benefit the appellant’s children was error. As this reasoning was the basis for the order of $60.00 per week there should have been evidence to support the present husband’s contribution as he was under no obligation to support his wife’s children by a prior marriage.

Most certainly evidence of voluntary contribution by a present spouse to the support of the children is relevant and can be properly considered by a trial judge in determining a support order. Commonwealth ex rel. Mainzer v. Audi, 266 Pa. Superior Ct. 122, 403 A.2d 124 (1979).

A support order cannot rest upon the speculation of the trial judge as to the extent of a parent’s income when there is no evidence of that income on record. It would follow that this would also apply to a parent’s new spouse. Commonwealth ex rel. Goodman v. Delara, 219 Pa. Superior Ct. 449, 281 A.2d 751 (1971).

The case is remanded to the court below for further hearing for the determination of the contribution, if any, of the husband to the support of the children as set forth in this opinion.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent. The majority holds that remand is appropriate here because the trial judge improperly speculated as to appellant’s present husband’s income and that such speculation formed the basis for the order of support entered by the court.

The record shows that appellee’s attorney asked Mrs. Marter where her present husband works, to which she replied that he is self-employed; but that she had no idea of his particular involvement in any of his business matters. She did state, however, that he rents farm land and owns a small tavern and part of an office building. In his opinion, Judge Canuso stated:

It is quite obvious or reasonable to assume that [appellant] is well provided for by her present husband and that together they may well be able to afford the standard of living they exhibit and enjoy.

While this statement might give the impression that Judge Caruso was basing the amount of the support order in part upon appellant’s present husband’s income, the remainder of the opinion dispels this impression:

Accordingly, we believed that $120 per week would be fair and adequate for the support of the two children of their ages and circumstances and since the parties were earning about the same amount, we believed that the [appellee] should be responsible for only one-half or $60 per week. (Emphasis added.)

No direct reference to appellant’s present husband’s income appears in the opinion.

It is well settled that a support order imposed upon a father must be consistent with his station in life and customary standard of living, Commonwealth ex rel. Berry v. Berry, 253 Pa. Super. 268, 272, 384 A.2d 1337, 1339 (1978), and may not be punitive or confiscatory. Dena Lynn F. v. Harvey H. F., 278 Pa.Super. 95, 419 A.2d 1374 (1980).

Here, after reviewing all the evidence, the trial judge concluded, based upon appellee’s income, that $60 per week was a fair and reasonable amount to impose upon appellee.

In Commonwealth ex rel. Mainzer v. Audi, 266 Pa.Super. 122, 403 A.2d 124 (1979), appellant-mother appealed from an order increasing appellee-father’s child support obligations, contending in part that the court erred in allowing testimony concerning the earnings of her second husband. We noted that the lower court had concluded in its opinion that the increased amount was all the father could pay. Therefore, we held the testimony concerning the earnings of appellant-mother’s present husband “did not have the effect of lessening the increase in appellee-father’s support obligations.” Id., 266 Pa.Super. at 124, 403 A.2d at 125.

The reasoning of Mainzer is apt in this instance. Here, any speculation by the trial court as to Mrs. Marter’s present husband’s income did not, as the majority implies, form a basis for its decision to order appellee to pay $60 per week for the support of his two children, as opposed to some potentially larger amount. Rather, it seems clear from the record that the trial judge analyzed what it costs to support the two children in question and on that basis, determined that appellee could afford, commensurate with his financial resources and status in life, to pay $60 per week. If the case was remanded, in fact, it seems clear that the order would remain the same, since $60 per week appears to be all the appellee can pay.

The order of the court below is fair, reasonable and nonconfiscatory and should be affirmed. There was no abuse of discretion here. Commonwealth ex rel. Berry v. Berry, supra. For these reasons, I dissent.