text:
    648 A.2d 16
    COMMONWEALTH of Pennsylvania v. Joseph H. DALBERTO, Appellant.
    Superior Court of Pennsylvania.
    Argued April 6, 1994.
    Filed July 19, 1994.
    Reargument Denied Sept. 27, 1994.

      Michael R. Lynn, Bloomsburg, for appellant.
    William S. Kreisher, Dist. Atty., Bloomsburg, for Com., appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   CIRILLO, Judge:

Joseph H. Dalberto appeals from a judgment of sentence entered in the Court of Common Pleas of Columbia County. We affirm.

Following a lengthy sting operation, Dalberto was arrested and charged with a total of thirty-one (31) counts of criminal activity, twenty-six (26) of which included violations of the Controlled Substance, Drug, Device and Cosmetic Act. 35 P.S. § 780-101 et seq. Dalberto entered a guilty plea to eight (8) counts of delivery of a controlled substance, with a plea bargain contemplating that consecutive sentences would be imposed on no more than two counts; the remaining counts would run concurrent.

A pre-sentence investigation was completed, and Dalberto was sentenced to twenty-seven (27) to fifty-four (54) months imprisonment on count one, and twenty-seven (27) to fifty-four (54) months imprisonment on count two, to run consecutively. The sentence imposed on the remaining six counts, in accordance with the plea agreement, ran concurrent to count one of the sentence. Thus, the aggregate period of incarceration imposed upon Dalberto was fifty-four (54) to one hundred eight (108) months.

Dalberto filed a petition to modify sentence, alleging that the sentence imposed was “excessive and unjust.” The petition was dismissed without a hearing. This appeal followed.

Dalberto raises the following issues for our consideration: (1) Whether the trial court abused its discretion in imposing a sentence of imprisonment spanning fifty-four (54) to one hundred eight (108) months, when it failed to consider the significant mitigating circumstances presented by Dalberto’s extensive post-arrest cooperation with law enforcement authorities, the particular circumstances of the offense, and the rehabilitative needs of the defendant?

(2) Where the pre-sentence investigation report was prepared in excess of one year prior to sentencing, must the sentence imposed by the trial court be vacated?

(3) Must the sentencing court’s judgment be vacated for failure to grant a hearing on Dalberto’s motion for reconsideration of sentence, summarily dismissing the same?

Dalberto’s primary argument implicates the discretionary aspects of sentencing. At first blush, it appears as though Dalberto has waived the opportunity to present this challenge. It is firmly established that a plea of guilty generally amounts to a waiver of all defects and defenses except those concerning the jurisdiction of the court, the legality of sentence, and the validity of the guilty plea. Commonwealth v. Moyer, 497 Pa. 643, 444 A.2d 101 (1982); Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980); Commonwealth v. Montgomery, 485 Pa. 110, 401 A.2d 318 (1979); Commonwealth v. Reichle, 404 Pa.Super. 1, 589 A.2d 1140 (1991); Commonwealth v. Coles, 365 Pa.Super. 562, 530 A.2d 453 (1987). Here, Dalberto does not pose a challenge to the legality of his sentence; under the facts of this case, however, Dalberto will not be precluded from appealing the discretionary aspects of his sentence. Our review of current Pennsylvania case law indicates that the determination of whether discretionary aspects of sentencing may be challenged after a guilty plea is entered depends upon the actual terms of the plea bargain, specifically, to what degree a sentence agreement has been reached. The facts of this case present an opportunity for further clarification of the consequences of entering into a negotiated plea, as opposed to an open plea. Accordingly, we devote the first portion of this opinion to an explanation of the effects of plea bargaining on subsequent challenges to sentencing.

Pennsylvania has long recognized plea bargaining and plea negotiations as a just method of disposition in criminal cases. See Commonwealth v. Wilkins, 442 Pa. 524, 277 A.2d 341 (1971); Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966); see also Pa.R.Crim.P. 319(b). “[P]lea bargaining is a vital aide [sic] to the effectuation of criminal justice.” Commonwealth v. McKee, 226 Pa.Super. 196, 199, 313 A.2d 287, 288 (1973). In the interest of understanding the consequences of the plea bargaining process, there must be a clear distinction made between an “open plea” and a “negotiated plea.” For a defendant challenging the discretionary aspects of his or her sentence after entering a guilty plea, this distinction is crucial in determining whether or not an appeal from such a sentence will stand.

In Commonwealth v. Coles, 365 Pa.Super. 562, 530 A.2d 453 (1987), this court examined the consequences of entering into a strictly negotiated plea agreement. The appellee in Coles entered guilty pleas to theft charges and, as part of the plea negotiations, the Commonwealth recommended a sentence of imprisonment of not less than two and one-half years, less one day, to not more than five years, less one day, each sentence to run concurrently. The trial judge imposed the recommended sentence. Appellee filed a motion to reconsider the sentence and, following a hearing on the matter, the trial court entered an order reducing appellee’s sentence. The trial court denied the Commonwealth’s motion to vacate the order and the Commonwealth appealed. The issue presented to this court was whether the trial court was prevented from modifying the sentence, since the sentence was a result of plea bargaining negotiations.

Finding that the Commonwealth and the appellee had bargained for a specific sentence, we decided that the appellee had “attempted to strip the Commonwealth of the ‘benefit of the bargain’ when he petitioned the judge to unilaterally set aside the bargain.” Id. at 568, 530 A.2d at 456.

This was an inappropriate proceeding as by negotiating the sentence accepted by the court, the sentence could not be altered in the absence of mistake, misrepresentation or illegality. To hold otherwise would make a sham of the negotiated plea process and would give the defendant a second bite at his sentence, which we have frequently deplored in the context of withdrawal of a guilty plea.

Id. Importantly, in discussing the appellee’s motion to modify sentence, the court stated,

where a plea agreement is an open one as opposed to one for a negotiated sentence, unquestionably, after sentencing the defendant can properly request reconsideration as the court alone decided the sentence and no bargain for a stated term, agreed upon by the parties, is involved.

Id. at 570, 530 A.2d at 457 (emphasis added).

Finding the order modifying the sentence to have been in error, the court concluded that

[i]f either party to a negotiated plea agreement believed the other side could, at any time following entry of sentence, approach the judge and have the sentence unilaterally altered, neither the Commonwealth nor any defendant would be willing to enter into such an agreement.

Id. at 571, 530 A.2d at 458.

Shortly after Coles was decided, this court in Commonwealth v. Becker, 383 Pa.Super. 553, 557 A.2d 390 (1989) suggested a similar approach to negotiated guilty pleas in the context of challenges to the discretionary aspects of sentencing. There, appellant entered a guilty plea to a drunk driving charge, and the trial court sentenced him to the shortest sentence permissible under the mandatory sentencing provisions of the Vehicle Code. Appellant filed a motion to withdraw his guilty plea and also sought modification of his sentence. On appeal, this court found no basis for the withdrawal of the guilty plea. While indicating that a defendant does not waive the right to appeal the legality of sentence upon entry of a guilty plea, this court expressed the following in a footnote:

Though it has often been stated casually that a person who pleads guilty may only challenge the legality of sentence, this is not strictly true. A defendant, who enters a guilty plea which does not involve a plea bargain designating the sentence to be imposed, cannot be said to have granted the sentencing court carte blanche to impose, a discriminatory, vindictive or excessive sentence so long as the legal limits are not exceeded. Obviously, the entry of a guilty plea does not preclude a petition for allowance of appeal of discretionary aspects of sentence subsequently imposed. See [,] e.g. [,] Commonwealth v. Sanchez, 372 Pa.Super. 369, 539 A.2d 840 (1988) (appeal of discretionary aspects of sentence following entry of a guilty plea); Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (same).

Becker, 383 Pa.Super. at 557 n. 1, 557 A.2d at 392 n. 1 (1989) (emphasis added).

More recently, in Commonwealth v. Reichle, 404 Pa.Super. 1, 589 A.2d 1140 (1991), it was determined that the appellant had waived the right to appeal the discretionary aspects of her sentence where the plea agreement contained a negotiated sentence. Appellant was charged with two counts of driving under the influence of alcohol (DUI), and entered a plea to one DUI count in exchange for the Commonwealth’s agreement to nol pros the remaining charge and recommend the mandatory minimum sentence of 48 hours incarceration. The sentencing court accepted the plea agreement and sentenced appellant to 48 hours imprisonment and 50 hours of community service. A motion to modify sentence was filed and denied. On appeal, appellant challenged the discretionary aspects of her sentence.

In deciding whether to allow appellant’s appeal, the court initially pointed out that the Commonwealth and Reichle had bargained for a particular sentence, and that appellant received precisely what she was promised under the terms of the agreement. Id. at 3-4, 589 A.2d at 1141. Considering the specific terms of the negotiated sentence, this court pronounced, “Where the plea agreement contains a negotiated sentence which is accepted and imposed by the sentencing court, there is no authority to permit a challenge to the discretionary aspects of that sentence.” Id. (emphasis added). The court went on to cite Coles, supra, for the proposition that permitting a discretionary appeal following the entry of a negotiated plea would make a sham of the negotiated plea process. Ultimately, the court dismissed the appeal.

Coles and Reichle clearly indicate that where there are specific penalties outlined in the plea agreement, an appeal from a discretionary sentence will not stand. Consistent with this reasoning, the Becker decision implies that where there have been no sentencing restrictions in a plea agreement, the entry of a guilty plea will not preclude a challenge to the discretionary aspects of sentencing. Otherwise stated, the plea agreements in Coles and Reichle represented “negotiated pleas,” while Becker referred to an “open plea.”

In an open plea agreement, there is an agreement as to the charges to be brought, but no agreement at all to restrict the prosecution’s right to seek the maximum sentences applicable to those charges. At the other end of the negotiated plea agreement continuum, a plea agreement may specify not only the charges to be brought, but also the specific penalties to be imposed.

Commonwealth v. Porreca, 389 Pa.Super. 553, 560, 567 A.2d 1044, 1047 (1989), rev’d on other grounds in 528 Pa. 46, 595 A.2d 23 (1991).

With these standards in mind, it becomes clear that Dalberto’s plea agreement falls somewhere between a negotiated plea and an open plea; our task is to determine the effect of this hybrid plea agreement on the right to challenge the discretionary aspects of his sentence. Here, while Dalberto’s plea agreement did not include a specific term of imprisonment, it did place limitations on his sentence, i.e. that no more than two of thé charges were to run consecutively. We believe that justice requires that we treat this case as an “open” plea and permit an appeal to the discretionary aspects of sentencing. Thus, we conclude that a plea agreement which recommends that consecutive sentences be imposed, standing alone, will not prevent a subsequent challenge to the discretionary aspects of that sentence. We wish to make clear, however, that we will allow an appeal only as to those discretionary aspects of sentencing which have not been agreed upon during the negotiation process. Thus, Dalberto’s appeal shall not include an appeal to the consecutive nature of his sentence; this aspect of his sentence has been previously agreed upon. Nevertheless, there exists the potential for a trial court to abuse its sentencing discretion in Dalberto’s situation; the duration of the sentence has not been agreed upon, but is left to the judgment of the trial court. The specific duration of the sentence, therefore, may be challenged. By contrast, in a “negotiated” plea agreement, where a sentence of specific duration has been made part of a plea bargain, it would clearly make a sham of the negotiated plea process for courts to allow defendants to later challenge their sentence; this would, in effect, give defendants a second bite at the sentencing process. Coles, supra.

The case at hand is, of course, different from the situation where a defendant’s attorney, as part of the plea bargain, agrees to recommend a certain sentence, and the trial court then refuses to abide by the recommendation and imposes a sentence greater than the one on which the defendant and the Commonwealth had agreed. In those instances, while challenges to the sentences themselves have been permitted, “[s]uch a claim is not, strictly speaking, a challenge to the excessiveness of the sentence; rather, it is properly addressed to the validity of the appellant’s plea.” Commonwealth v. Osteen, 381 Pa.Super. 120, 552 A.2d 1124 (1989). See Commonwealth v. McClendon, 403 Pa.Super. 467, 589 A.2d 706 (1991) (en banc) (plea bargain was limited to what sentence the prosecutor would recommend, not what sentence the court would actually impose, thus, when the prosecutor informed the trial court that the Commonwealth would have no objection to the imposition of concurrent sentences and the judge imposed consecutive sentences, appellant’s motion to withdraw his guilty plea and motion to reduce sentence were denied); Osteen, supra (trial court specifically rejected Commonwealth’s recommendation, which induced appellant’s plea, for a term of probation and instead sentenced appellant to a term of imprisonment; appellant filed only a motion to reconsider sentence, whereby the Superior Court addressed the motion as a challenge to both the validity of the guilty plea and excessiveness of sentence, and denied both. Again, the plea bargain was limited to what sentence the prosecutor would recommend); see also Commonwealth v. Porreca, 528 Pa. 46, 595 A.2d 23 (1991).

Here, Dalberto does not challenge the validity of his plea, rather, he contends that his sentence was excessive. Since we have determined that the term of his plea was not negotiated, and that he has not waived his right to bring such an appeal, we now address Dalberto’s issue implicating the discretionary aspects of his sentence. “In a challenge to the discretionary aspects of sentence, the appellant must invoke this court’s jurisdiction by including in his or her brief a separate concise statement demonstrating that there exists a substantial question as to the appropriateness of the sentence under the Sentencing Code.” Commonwealth v. Wright, 411 Pa.Super. 111, 113, 600 A.2d 1289, 1290 (1991); see Commonwealth v. Tuladziecki, 513 Pa. 508, 511-13, 522 A.2d 17, 19 (1987); Pa.R.A.P. 2119(f). Here, Dalberto has included a 2119(f) statement of the reasons for his appeal. We now turn our attention to whether it has presented a “substantial question.”

The legislature of this Commonwealth has vested broad discretion in the trial court to impose an appropriate sentence in each case that comes before it. Tuladziecki, supra. It is only where an aggrieved party can articulate clear reasons why the sentence issued by the trial court compromises the sentencing scheme as a whole that we will find a “substantial question” and review the decision of the trial court. Id. Specifically, “[w]e are inclined to find the presence of a substantial question where appellant advances a colorable argument that the trial judge’s actions were either inconsistent with the specific provisions of the Sentencing Code, or contrary to the norms which underlie the sentencing process.” Commonwealth v. Zelinski, 392 Pa.Super. 489, 499-500, 573 A.2d 569, 574 (1990). Dalberto has presented no arguments that the imposed sentence violated any specific provision of the Sentencing Code and, further, has not specified any particular deviation from the fundamental norms underlying the sentencing process.

Dalberto questions the appropriateness of the consecutive sentences and contends that the trial court failed to consider or mention significant mitigating circumstances, including: Dalberto’s cooperation with law enforcement authorities; the particular circumstances of the commission of the offenses; the repeat nature of the crimes; and Dalberto’s rehabilitative needs. The imposition of a concurrent or consecutive sentence is discretionary. Commonwealth v. Wienckowski, 371 Pa.Super. 153, 537 A.2d 866 (1988). We will not, as stated above, allow a challenge to the consecutive nature of Dalberto’s sentence, as this portion of the sentence has been previously agreed upon. This notwithstanding, Dalberto received precisely what he was promised under the open plea agreement. Additionally, we have repeatedly held that the mere assertion that the trial court failed to give adequate weight to sentencing factors will not rise to the level of a “substantial question.” Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990) (no substantial question is raised where appellant challenges the discretion of the court in “overemphasizing” or “failing to adequately consider” certain factors); Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (same); Osteen, supra (no substantial question presented where appeal merely challenges the weight given various sentencing factors by the trial court). It is clear that Dalberto is simply asking this court to reweigh the mitigating circumstances presented at sentencing and in the pre-sentence report. In light of the foregoing standards, we decline to do so. Dalberto has not presented a substantial question as to the appropriateness of his sentence.

Moreover,

[w]here pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself____ Having been fully informed by the pre-sentence report, the sentencing court’s discretion shoúld not be disturbed.

Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988). Here, the trial judge had the benefit of a pre-sentence report. While the fact that Dalberto cooperated with various law enforcement agencies after his plea was entered was not made part of the pre-sentence report, the record reflects that the trial judge had the benefit of this knowledge during sentencing. Accordingly, Dalberto was sentenced in the lowest mitigated range permitted by the sentencing guidelines. Dalberto has presented no substantial question for our review; furthermore, the trial judge was in possession of a presentence report. Because Dalberto has failed to invoke this court’s jurisdiction, Tuladziecki, supra, we decline to address the merits of his sentencing issue.

In his second issue, Dalberto claims that his sentence must be vacated because the pre-sentence report relied upon by the trial court was prepared in excess of one year prior to the actual imposition of sentence. Dalberto concedes that there exists no appellate case law in support of his proposition. Dalberto baldly asserts that because the trial court based its sentence principally on the information provided in the presentence report, the unrevised report became a “fatal flaw” in the sentencing process. We disagree. The sentencing transcript reveals that Dalberto and his counsel were provided with the pre-sentence investigation report and were permitted to review the report and comment on whether there were any errors or omissions:

BY THE COURT:

Q. Mr. Dalberto, have you had an opportunity to read and review the pre-sentence report?

A. Yes.

Q. Is there anything you wish to state before the sentence is imposed?

A. Yes, I have been drug free for the past two years, and I have been gainfully employed for the last two years without missing a day’s work. And, I realize the mistake I have made and tried to help correct it by cooperating.

Q. Is that all you have to say?

A. Yes.

Additionally, as stated above, the trial court was made aware, by both the defense and the Commonwealth, of Dalberto’s cooperation with various law enforcement agencies. Dalberto was given ample opportunity to amend/ehallenge his presentence report. We, therefore, will not disturb the trial court’s sentence on the mere assertion that that the presentence report was “stale.”

Finally, Dalberto asserts that his sentence should be vacated for failure to grant a hearing on the motion for reconsideration of sentence. We disagree.

A petition for modification of sentence is designed to give the sentencing court an opportunity, before appellate review is undertaken, to correct any errors it may have committed at sentencing.... A modification of sentence hearing, therefore, is only necessary if the sentencing record discloses errors by the trial court. Should the modification petition fail to raise such errors, then the trial court is under no obligation to hold an obviously frivolous hearing____ It is within the trial court’s discretion to rely upon the sentencing record.

Commonwealth v. Ziomek, 291 Pa.Super. 251, 254-55, 435 A.2d 894, 896 (1981) (citations omitted).

In his appellate brief, Dalberto states that, “in the spirit of Ziomek ... a hearing was necessitated in that the [modification] [p]etition raised a significant error.” Specifically, Dalberto points to paragraph eight of his modification petition, which reveals a challenge to the consecutive nature of his sentencing. For reasons set forth previously in this opinion, it is readily apparent that the trial court committed no error in this regard. Accordingly, the trial court was under no obligation to hold a hearing on Dalberto’s motion.

Judgment of sentence affirmed.

      . When counsel for both sides arrive at a plea agreement, they are required to state the agreement on the record in open court. See Pa.R.Crim.P. 319(b)(2). Here, Dalberto’s written, detailed guilty plea, which fully and correctly informed him of the consequences of his plea, included the following: Terms of plea agreement, if any: "No more than 2 counts consecutive.” The plea was signed and initialed by Dalberto. Additionally, the trial judge conducted an oral guilty plea colloquy. When the trial judge asked if there were any plea negotiations regarding sentencing, the defense attorney announced that "[t]he arrangement would be no more than 26 — the sentences of the deliver count on the sentences would run consecutive, the rest concurrent sentences.” While this response is, at best, confusing, we will acknowledge the plea agreement as it is set forth in both parties’ briefs and the written guilty plea agreement. Since there is no dispute as to the actual terms of the plea agreement, we will overlook the fact that it has not been clearly stated on the record. See Commonwealth v. Walburn, 249 Pa.Super. 460, 378 A.2d 387 (1977) (failure to place terms of plea agreement on the record does not necessarily lead to grant of new trial).

      . Plea bargaining, as defined in Black’s Law Dictionary, is
      [t]he process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multicount indictment in return for a lighter sentence than that possible for the graver charge.
      Black’s Law Dictionary 1037 (5th ed. 1979).

      . Rule 319. Pleas and Plea Agreements
      (b) Plea Agreements.
      (1) The trial judge shall not participate in the plea negotiations preceding an agreement.
      (2) When counsel for both sides have arrived at a plea agreement they shall state on the record in open court, in the presence of the defendant, the terms of the agreement. Thereupon the judge shall conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement.
      (3) If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea.
      Pa.R.Crim.P. 319(b).

      . The Pennsylvania Supreme Court in Porreca determined that, since there was no inquiry into whether the defendant’s plea was induced by an unfulfilled promise or threat, reversal was necessary so that the case could be remanded for a new guilty plea colloquy. Thus, the grounds for reversal did not affect the above quoted language describing the plea bargain continuum.

      . Pennsylvania Rule of Appellate Procedure 2119(f) provides:
      (f) Discretionary Aspects of Sentence. An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his.brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.
      Pa.R.A.P. 2119(f).

      . Particularly, Dalberto concedes that while the trial court imposed sentences on each count within the mitigated range, the net effect of making counts one and two consecutive resulted in a minimum imprisonment period of 54 months, placing the sentence in the aggravated range of the sentencing guidelines.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    648 A.2d 24
    Doris L. MATHENY and G. Edwin Matheny, Husband and Wife and Joan Murray, Appellants v. WEST SHORE COUNTRY CLUB, a Corporation; and Vladimir J. Penc.
    Superior Court of Pennsylvania.
    Argued June 21, 1994.
    Filed July 25, 1994.
    Reargument Denied Oct. 6, 1994.

      Stephen M. Greecher, Jr., Harrisburg, for appellants.
    Kevin E. Osborne, Harrisburg, for appellees.
    Before OLSZEWSKI, POPOVICH and JOHNSON, JJ.
   OLSZEWSKI, Judge:

On February 12, 1990, Vladimir Pene drove the station wagon he was operating for the West Shore Country Club into the rear of Doris Matheny’s Dodge 600 sedan. Matheny and her pregnant daughter Joan Murray were sitting at a stop sign when Pene rear-ended them; they were both wearing their seat belts. Defendants admitted liability, so Matheny, her husband Edwin, and Murray brought this suit in June of 1991 on the sole issue of damages. A jury awarded Matheny $4,500 for her past and future medical expenses and $1,250 for general damages (including pain and suffering); they awarded daughter Joan $4,000 in general damages (she did not seek medical expenses); and they awarded no damages for husband Edwin’s loss of consortium claim.

Not satisfied with the verdict, the Mathenys filed post-trial motions for additur or, in the alternative, a new trial. The trial court acknowledged that the verdict was low, but considered it to be a rational compromise given the conflicting damage testimony. Since injustice did not shine forth like a beacon, the trial court saw no basis for disregarding the jury’s verdict and denied the post-trial motions. This appeal followed.

It is hard to imagine a situation which calls for a more deferential standard of review than a weight of the evidence claim. It is the exclusive province of the jury, as factfinder, to hear evidence on damages and decide what amount fairly and completely compensates the plaintiffs. A trial court should be loath to substitute its judgment for the jury’s and may do so only in very limited circumstances. We have often used the image of “injustice shining forth like a beacon” to describe the rare situation which could justify a trial court’s decision to upset a jury verdict and grant a new trial. See, e.g., Bortner v. Galdfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982). But the trial court is at least in a position to make an informed judgment to overturn a jury verdict, since it had an opportunity to observe the witnesses and evaluate credibility. See Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 625 A.2d 1181 (1993) (trial court is uniquely qualified to evaluate factual matters, and thus can have a basis for rejecting a jury verdict and granting a new trial).

Appellate courts lack this vantage point. Review of a cold record acts much like the inverse square law of light propagation — any beacon of injustice will necessarily appear even dimmer to our eyes than it was to the trial court’s. We should therefore be exceptionally hesitant to disregard both a jury verdict and the trial court’s evaluation of the evidence, and order a new trial at plaintiffs’ behest. Indeed, our high court has stated:

When a court grants a new trial on the ground of inadequacy of the verdict an appellate court, in the absence of a gross abuse of discretion, will not interfere. When a trial court refuses to grant relief against an allegedly inadequate verdict an appellate court will exercise even greater caution in reviewing its action.

Black v. Ritchey, 432 Pa. 366, 369, 248 A.2d 771, 773 (1968) (emphasis in original, citations omitted). We therefore may only reverse the trial court if we are convinced that it committed something even worse than a gross abuse of discretion.

Given this standard, it comes as no shock that we also fail to see injustice shining forth like a beacon in the present case. Since defendants admitted liability, one would have expected this case to settle if issues of damages were not strongly contested. The record reveals ample testimony which supports the jury’s decision to return a low damage verdict for the plaintiffs.

Doris Matheny walked away from the accident without any externally manifest injuries, just various pains which made her feel “uncomfortable.” She received treatment which relieved all of her symptoms within a few months, except for some low-grade pain which was manageable with over-the-counter analgesics. Matheny stopped medical treatment for 15 months, and then resumed medical treatment shortly after commencing this suit. In a self-assessment questionnaire she filled out for one of her new doctors, Matheny admitted that she had been getting along without taking any pain killers, and that her social and sex lives were normal. Also, evidence at trial suggested that some of her problems could have been caused by arthritis and hyperthyroidism, conditions not related to the accident.

We cannot accept the Mathenys’ argument that the award of general damages was necessarily too low. The jury must believe that a plaintiff suffers pain before it need compensate for that pain. Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988) (upholding an award of only $42.60 to cover medical treatment and nothing for pain in a dog bite case). The Mathenys cite several recent cases in which new trials for inadequate damages were awarded over a trial court’s denial, but all are distinguishable: they either involved a manifestly serious injury, no question of causation, or an award of no damages. Cf. Hill v. Pa. Bureau of Corrections, 124 Pa. Cmwlth. 172, 555 A.2d 1362 (1989) (low award despite serious, demonstrable injury and clear causation); Mueller v. Brandon, 282 Pa.Super. 37, 422 A.2d 664 (1980) (serious, demonstrable injuries and no question of causation); Hawley v. Donahoo, 416 Pa.Super. 469, 611 A.2d 311 (1992) (no damages awarded despite an obvious injury). Here, Doris Matheny’s injuries were not manifest, by her own admission not that troublesome, causation was at issue, and the jury did award some general damages. We cannot say that the low award was out of proportion to the record evidence of her pain.

Likewise, the jury may have reasonably determined that Doris Matheny’s injuries were simply not serious enough to support her husband Edwin’s loss of consortium claim. Such a finding does not contradict the trial court’s charge that Edwin Matheny should be compensated for any loss of his wife’s services and companionship due to the accident-related injuries. Claims for loss of an injured spouse’s consortium are generally appended to every negligence claim filed in this Commonwealth, but they are separate claims. Merely proving that the plaintiff suffered an injury does not prove that his or her spouse lost consortium. The jury apparently found that Doris Matheny suffered some small injury, compensated her for it, but also found that this injury had no effect on her ability to serve and provide companionship to her husband.

Nor are we persuaded by the Mathenys’ argument that the award of medical expenses is inconsistent and must be corrected. The Mathenys presented a past medical expense claim of about $2,000, and a claim of about $10,000 for future surgery which might or might not become necessary. The jury awarded $4,500 in past and future medical expenses. The Mathenys reason that the award demonstrates that the jury accepted the future medical expense claim, and therefore should have awarded the entire amount claimed. On the contrary, the award would appear to be a classic compromise verdict — the jury reached a future medical expense award by considering the probability that the future surgery would become necessary.

In sum, the Mathenys argue that the verdict should be reversed because it is too low, even though: all of Doris Matheny’s injuries were subjective, not physically manifest; the degree of these injuries and their etiology were hotly contested; and Doris Matheny’s own admissions to her treating physicians indicated that her pain was minor. We agree that this verdict may appear low, but it falls short of the demanding standard required for reversing a trial court’s order refusing a new trial.

Normally a low verdict alone will not suffice to grant a new trial. Our Supreme Court has held that where the verdict could have been the result of jury compromise, a new trial will not be awarded on the grounds that the verdict was too low. Thus, if there had been conflicting testimony regarding the amount of plaintiffs damages in this case, the painfully low verdict would withstand a motion for a new trial, regardless of how persuasive the judge viewed the plaintiffs witnesses.

Read v. Shu, 419 Pa.Super. 227, 233-84, 615 A.2d 109, 111-12 (1992) (Olszewski, J. concurring, citations omitted); trial court opinion, 9/3/93 at 2. Given the conflicting evidence in the present case, and the trial court’s conviction that a new trial is not warranted therefore, we are in no position to find otherwise.

Judgment affirmed.

POPOVICH, J., concurs in the result.

      . Joan Murray has not appealed her award.

      . Moreover, we note that this area is particularly ill-suited for reasoning by analogy. Every accident victim suffers unique injuries and responds differently to them. Also, a jury may be influenced by the way a case is presented. As our high court recently noted, “Indeed, too loud a cry of pain, on small occasion, may dilute belief even in the occasion itself. Jurors may perceive interests beyond momentary pain: interests of opportunity that to the jurors’ minds become oppressive even for an obvious tortfeasor.” Boggavarapu, supra, 518 Pa. at 167-68, 542 A.2d at 518.


author: TAMILIA, Judge.

text:
    648 A.2d 26
    Michael SHAFFER v. Brian SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 11, 1994.
    Filed Aug. 16, 1994.
    Reargument Denied Oct. 11, 1994.

      Burton A. Rose, Philadelphia, for appellant.
    John W. Morris, Philadelphia, for appellee.

      Before OLSZEWSKI, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge.

Brian Smith appeals from the November 22, 1993 judgment entered in favor of appellee, Michael Shaffer, for damages he incurred as the result of personal injuries sustained due to an unprovoked physical attack by appellant. On December 7, 1986, appellee and a group of college friends were walking along a street in Philadelphia when they were assaulted by another group of young men. Appellee was struck in the face by appellant, who was wielding nunchaka (martial arts sticks), resulting in the permanent loss of use of his left eye. Appellant was convicted of aggravated assault and possession of an instrument of crime, and thereafter was sentenced to six and one-half (&k) to fifteen (15) years’ imprisonment, which sentence was affirmed by both this Court and our Supreme Court. Commonwealth v. Smith, 413 Pa.Super. 643, 595 A.2d 194 (1991), alloc. denied, 529 Pa. 619, 600 A.2d 536 (1991). On November 21, 1988, appellee filed this civil action against appellant for damages caused by the assault, and following the exhaustion of appellant’s direct appeals on the criminal matter, appellee moved for partial summary judgment as to liability on the basis of the convictions. On June 17, 1992, the trial court granted the motion. Before the trial as to damages, however, appellant filed a Post Conviction Relief Act petition (PCRA), 42 Pa.C.S. § 9541 et seq., alleging ineffective assistance of trial counsel. Appellant also filed a motion nunc pro tunc in civil court to vacate the partial summary judgment on the basis of his PCRA petition. This motion was subsequently denied by the trial court, which thereafter proceeded to trial on the issue of damages. On July 29, 1993, the trial court awarded appellee $1,650,000 in compensatory and punitive damages.

On December 2, 1993, appellant filed the present appeal challenging the civil verdict on the grounds of his pending PCRA petition. On December 10, 1993, however, Smith’s PCRA petition was denied, and he thereafter filed an appeal which is pending before this Court at No. 00169 Philadelphia, 1994.

On appeal, appellant argues the trial court erred in refusing to vacate the grant of partial summary judgment in light of the pending PCRA appeal, which is based upon several ineffectiveness of counsel claims. Because of this alleged ineffectiveness, appellant contends he should be entitled to deny in civil court that which was established by his prior criminal conviction. Accordingly, appellant wishes this Court to defer action on this appeal until resolution of the PCRA appeal.

It is generally accepted in the Commonwealth, and unchallenged by appellant, that a criminal conviction collaterally estops the defendant from denying his acts in a subsequent civil trial. See Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965). The doctrine of “collateral estoppel” or issue preclusion prevents a question of law or an issue of fact that has been litigated and fully adjudicated in a court of competent jurisdiction from being relitigated in a subsequent suit. Meridian Oil and Gas Enterprises, Inc. v. Penn Central Corp., 418 Pa.Super. 231, 240, 614 A.2d 246, 250 (1992). Collateral estoppel applies if, inter alia, there was a final judgment on the merits. Id. at 240, 614 A.2d at 251.

Here, appellant argues that since the PCRA appeal is pending before this Court, the judgment is not final. However, we find this argument to be without merit. As stated in the Restatement, Judgments 2d § 13:

The rules of res judicata are applicable only when a final judgment is rendered. However, for purposes of issue preclusion (as distinguished from merger and bar), “final judgment” includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect.

Specifically, comment (f) to section 13 states “[t]he better view is that a judgment otherwise final remains so despite the taking of an appeal.... ” In particular circumstances, the wisest course is to regard the prior decision of the issue as final for the purpose of issue preclusion without awaiting the end judgment. Comment (g) of the Restatements, Judgments 2d. Before doing so, however, the court should determine the decision was adequately deliberated and firm. Id. Here, the trial court did not grant the partial summary judgment until appellant exhausted his direct appeals to this Court and the Pennsylvania Supreme Court. Our Supreme Court adopted the position in Everson v. Everson, 494 Pa. 348, 431 A.2d 889 (1981), that “[t]he mere fact that a party has made a motion in the trial court to vacate the judgment and to grant a new trial or to modify the judgment or enter a new judgment does not deprive the judgment of its conclusive effect in another action between the parties.” Id. at 358, 431 A.2d at 894. See also Meridian Oil and Gas, supra. (This Court held final judgment was rendered on the merits of the issue following appeal and subsequent affirmance of trial court decision.)

Appellant would have this Court hold the criminal conviction was not final after a full jury trial on the merits, an affirmance on appeal to this Court and a denial of review by the Pennsylvania Supreme Court as well as a denial of a petition pursuant to the PCRA. In other words, appellant contends the filing of an appeal to a denied PCRA petition should disrupt the doctrine of collateral estoppel and thus require the victim to wait indefinitely to resolve the civil matter. Appellant provides no legal basis in his brief to support this argument, however, and to rule in his favor would set a precedent allowing him to avoid indefinitely the civil consequences of his conviction through the filing and appealing of countless PCRA petitions, habeas corpus petitions and pardon applications, thereby for all intents and purposes destroying the doctrine of collateral estoppel which promotes judicial economy and fairness to the victim by eliminating wasteful relitigation. Accordingly, we find appellant’s argument to be without merit.

Judgment affirmed.

      . According to appellant’s brief, he filed an Application for Suspension of Briefing Schedule, which requested this Court to defer submission of briefs in the instant civil appeal pending the outcome of the PCRA appeal. This Court entered an Order on May 5, 1994 denying the aforesaid Application for Suspension of Briefing Schedule.


author: CIRILLO, Judge:

text:
    648 A.2d 28
    In the Interest of J.R., A Juvenile. Appeal of J.R.
    Superior Court of Pennsylvania.
    Submitted April 28, 1994.
    Filed Sept. 15, 1994.
    Petition for Allowance of Appeal Denied Jan. 19, 1995.

      David Regoli, Asst. Public Defender, New Kensington, for appellant.
    Tamara S. Rhodes, Asst. Dist. Atty., Greensburg, for Com., appellee.

      Before ROWLEY, President Judge, and CIRILLO and OLSZEWSKI, JJ.
   CIRILLO, Judge:

J.R., a thirteen year-old juvenile, appeals from an order of the Court of Common Pleas of Westmoreland County adjudicating him delinquent for the acts of indecent assault and involuntary deviate sexual intercourse. We affirm.

The pertinent testimony presented at the adjudication hearing is as follows: A.B., the four year-old female victim, testified that on July 7, 1998 she was left at her aunt’s home by her mother, when she began playing in the woods with her cousins, Daniel Powell, age 8, Jeff Powell, age 4, and J.R. While in the woods, A.B. testified that J.R. took off her shorts, lifted her up, and licked her vaginal area with his tongue five times. Shortly after this incident occurred, A.B. related to both her aunt and her mother what had happened. On July 22, 1993, A.B. corroborated this account with Trooper James Sileo of the Pennsylvania State Police.

Daniel Powell witnessed the incident in question. He testified that J.R. licked A.B.’s vaginal area while the four children were playing in the woods and that both he and A.B. informed A.B.’s aunt and mother of what had occurred. Daniel Powell also stated that he was unsure whether A.B.’s shorts were on or off during the incident.

A.B.’s aunt testified that J.R. had been residing with her since the death of her sister, J.R.’s mother. She also testified that both A.B. and Daniel came into the house to tell her what had occurred. When J.R. testified, he denied that the incident ever occurred. He claimed that the only time he touched A.B. was to lift her over the “jaggers,” so that she would not get thorns in her feet. J.R. also claimed that Daniel could not have seen him pick up A.B., since Daniel was on the other side of the bushes.

Following the hearing, J.R. was adjudicated delinquent for the acts of involuntary deviate sexual intercourse and indecent assault. He was ordered to be held at the Juvenile Detention Center pending a disposition hearing. At the disposition hearing, J.R.’s Juvenile Probation Officer, Jeremy Olson, testified to his findings pursuant to his Pre-Sentencing Investigation. He testified that J.R. would become uncooperative when asked about sexual questions and from the results of one of the tests, J.R. did not find that it was abnormal for sex to occur between an adult and an adolescent. The doctors who interviewed J.R. regarding his mental capacity and mental functioning recommended that J.R. be placed in a juvenile detention home. The court ordered that J.R. be placed at the Appalachian Youth Services-Julian House in Ebensburg, Pennsylvania and that J.R. attend and successfully complete the Juvenile Services Sexual Offender Program and the Appalachian Youth Services Day Treatment Program. This appeal followed.

J.R. presents three issues on appeal for our consideration:

(1) Is a four year-old alleged victim, who appears to appreciate the difference between lying and telling the truth, and who states that she will be punished for lying, incompetent to testify when she directly contradicted herself by stating that it is “good to lie,” especially when her testimony demonstrates that she could not respond to the questions posed with intelligent answers?
(2) Was the four year-old alleged victim’s testimony that her pants were down when the alleged incident occurred, enough evidence of penetration when this testimony was directly contradicted by a witness who observed the alleged incident?
(3) Even if there is sufficient evidence to convict the appellant of involuntary sexual deviate intercourse, did the prosecution introduce enough evidence to establish a sufficient independent factual basis to convict the appellant of the lesser offense of indecent assault.

J.R. first argues that the trial court abused its discretion when it qualified A.B. competent to testify. Specifically, J.R. contends that AB. did not understand her duty to tell the truth. We disagree.

In reviewing a challenge of an evidentiary nature such as competency of a witness to testify, a witness is presumed competent to testify unless proven otherwise. Commonwealth v. Trimble, 419 Pa.Super. 108, 114, 615 A.2d 48, 51-52 (1992). The burden to prove that a witness is not competent falls on the objecting party. Commonwealth v. Short, 278 Pa.Super. 581, 586, 420 A.2d 694, 696 (1980) (citing Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959)). This court has noted that when a witness is under fourteen years of age, there must be a judicial inquiry into his or her mental capacity. Commonwealth v. Gaerttner, 335 Pa.Super. 203, 214, 484 A.2d 92, 98 (1984). Nonetheless, the determination of a witness’ competency to testify is left to the sound discretion of the trial judge, and we will not reverse the judge’s ruling on the matter absent a flagrant abuse of that discretion. Short, 278 Pa.Super. at 586, 420 A.2d at 696.

The relevant inquiry into the competency of a child to testify is well established:

There must be (1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what is it that she is called to testify about, and (3) a consciousness of the duty to speak the truth.

Commonwealth v. Trimble, 419 Pa.Super. at 114, 615 A.2d at 50 (citing Rosche v. McCoy, 397 Pa. at 620-21, 156 A.2d at 310).

In the case at hand, J.R. does not dispute that A.B. met the first two requirements of Trimble; that is, that A.B. had the capacity to communicate and that A.B. had the mental capacity to observe the occurrence and effectively remember it. Instead, J.R. argues that A.B. did not comprehend that she had a duty to tell the truth, because she repeatedly indicated at the adjudicatory hearing that it was “good to lie.” A review of the pertinent testimony of A.B. is in order.

On cross-examination by J.R.’s defense counsel, David Regoli, the following exchange with A.B. took place:

Q: A.B., what color are the flags behind you? Do you know what colors those are?
A: Red and Blue.
Q: Now if I told you that those flags were black; what is that?
A: A lie.
Q: So I would be telling a lie; right?
A: (The witness indicates yes).
Q: Is that good or bad?
A: Good.
Q: Pardon me?
A: Good.
Q: It’s good to tell a lie?
A: (The witness indicates yes).
Q: Are you sure?
A: (The witness indicates yes).

On redirect examination by Assistant District Attorney Tamara Bernstein, however, the following testimony was elicited:

Q: A.B., if you tell somebody something that didn’t happen will you get into trouble?
A: (The witness indicates yes).
Q: If you tell your mom something bad that happened or something good that happened and it didn’t happen, will she be happy with you or sad?
A: Sad.
Q: If you tell something that didn’t happen, would God be happy with you or sad?
A: Sad.
Q: So if David told you those flags were black and he wanted you to know that those flags were black; does that make you happy or sad when he tells you that they’re black when you know they’re red and blue?
A: They’re red and blue.
Q: Right do you know that you can get into trouble if you say something that didn’t happen?
A: (The witness indicates yes).
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Q: Do you you know that you can get into trouble if you say something happened when it didn’t happen? Do you know you can get into trouble if you say something that didn’t happen?
A: Yes.
Q: If I say you and I went to the zoo today, did we go to the zoo today and see animals; yes or no? Did we go or were we in my office?
A: In your office.
Q: Do you know how to read yet or do you have to learn more?
A: I’m going to learn more.
Q: You know how to look at pictures. Do you know how to color?
A: Uh-huh.
Q: If you spilled milk and your mom asked you and you said no and she found out that you did; would that be bad or good?
A: Bad.
Q: If you told her you didn’t spill the milk when you did would that be a lie?
A: (The witness indicates yes).
Q: I need you to say yes or no.
A: Yes.
Q: And would you get into trouble for lying? Would your mom be mad at you if you lied?
A: Yeah.

While we agree that the record does indicate some inconsistency regarding AB.’s comprehension of her duty to speak the truth, this does not necessarily signify an abuse of discretion by the trial court. In Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694 (1980), we stated that:

There is more to a child’s consciousness of the duty to speak the truth than being able to give a clear example of a lie or to understand the concept of an ‘oath.’ In fact, the trial judge’s opportunity to observe the demeanor, alertness, thoughtfulness, and sincerity of a child witness may be more informative than the answers the child gives to questions such as “What is a he?’ and ‘What will happen to you if you tell a lie?’

Id. at 588, 420 A.2d at 697 (citing Commonwealth v. Mangello, 250 Pa.Super. 202, 206, 378 A.2d 897, 899 (1977)). In Short, we further held that if the child witness understood that the judge and her parents would punish her if she told a lie, then this is sufficiently indicative of her understanding of the duty to tell the truth. Id.; see also Commonwealth v. Riley, 458 Pa. 390, 326 A.2d 384 (1974) (finding a six year-old witness competent to testify after the witness stated that he would “Go to the Devil” if were to tell a lie); Commonwealth v. Payton, 258 Pa.Super. 140, 392 A.2d 723 (1978) (holding that a six year-old was competent to testify after indicating that her mother would punish her if she told a lie).

In the case at hand, we are convinced that, despite her inconsistent testimony, A.B. understood her duty to tell the truth. Although she did repeatedly indicate that it was “good to tell a lie,” she also stated that she would be punished if she did so. Based upon our thorough review of the record and the conclusions reached at the adjudicatory hearing by the trial court, we find that A.B. was competent to testify. Accordingly, J.R.’s first argument is without merit.

J.R. next argues that the Commonwealth adduced insufficient evidence to adjudicate him delinquent for the act of involuntary deviate sexual intercourse. We disagree.

In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Swann, 431 Pa.Super. 125, 128, 635 A.2d 1103, 1105 (1994); Commonwealth v. Jarman, 529 Pa. 92, 94-95, 601 A.2d 1229, 1230 (1992). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Swerdlow, 431 Pa.Super. 453, 458, 636 A.2d 1173, 1176 (1994) (citing Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988)). It matters not whether the appellant finds a witness’ testimony lacking in credibility; such matters are solely within the province of the jury as trier of fact and, as such, will not be assailed on review by this court. Id. This standard is equally applicable in juvenile delinquency proceedings. In re D.D., 409 Pa.Super. 35, 597 A.2d 648 (1991).

Furthermore, the testimony of the victim, standing alone, is sufficient to convict in sex offense prosecutions. Commonwealth v. Purcell, 403 Pa.Super. 342, 350, 589 A.2d 217, 221 (1991); Commonwealth v. Cody, 401 Pa.Super. 85, 89, 584 A.2d 992, 993 (1991); Commonwealth v. Ziegler, 379 Pa.Super. 515, 520, 550 A.2d 567, 569 (1988). Minor discrepancies in testimony pointed out by an appellant does not make the evidence insufficient where those discrepancies are not significant. Cody, 401 Pa.Super. at 89, 584 A.2d at 993; Commonwealth v. Maute, 336 Pa.Super. 394, 406, 485 A.2d 1138, 1145 (1984).

The crime of involuntary deviate sexual intercourse occurs when an individual engages in “deviate sexual intercourse” with another person:

(1) by forcible compulsion; (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; (3) who is unconscious; (4) who is so mentally deranged or deficient that such person is incapable of consent; or (5) who is less than 16 years of age.

18 Pa.C.S.A. § 3123 (emphasis added); Ziegler, 379 Pa.Super. at 518, 550 A.2d at 569 (1988). “Deviate sexual intercourse” is defined, inter alia, as sexual intercourse between two people who are not husband and wife. 18 Pa.C.S.A. § 3101; Ziegler, 379 Pa.Super. at 518, 550 A.2d at 569. Deviate sexual intercourse is considered to have occurred if one’s mouth or tongue penetrates the vaginal area of another. Commonwealth v. Westcott, 362 Pa.Super. 176, 191, 523 A.2d 1140, 1147 (1987). Additionally, we note that “actual” penetration of the vagina is not necessary; some form of oral contact with the genitalia of the female victim is all that is required. Commonwealth v. Trimble, 419 Pa.Super. at 112, 615 A.2d at 50.

In the case at hand, A.B. testified that, while she and her cousins were playing the woods, J.R. licked her vaginal area five times. This account, consistently related to A.B.’s mother, her aunt, and Trooper Sileo, was corroborated by Daniel Powell, who witnessed the incident in question. Although Daniel Powell was unsure whether A.B.’s shorts were on or off during the attack, the trial court was well within its discretion in relying solely on the testimony of the victim. Purcell, supra. Accordingly, we find that the Commonwealth has adduced sufficient evidence that J.R. committed the act of involuntary deviate sexual intercourse upon A.B.

J.R.’s final argument is that the Commonwealth adduced insufficient evidence to adjudicate him delinquent for the act of indecent assault. We disagree.

Indecent assault is defined as:

A person who has indecent contact with another not his spouse, or causes such other to have indecent contact, with him is guilty of indecent assault, a misdemeanor of the second degree if,
(1) He does so without the consent of the other person; or
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(3) He knows that the other person is unaware that a indecent contact is being committed.

18 Pa.C.S.A. § 3126. “Indecent contact” is defined as “any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.” 18 Pa.C.S.A. § 3101.

J.R. contends that there was no “indecent contact” between himself and A.B. since there was no other evidence of any sexual touching for the purpose of arousing or gratifying his sexual desire. This claim is without merit. The legislature of the Commonwealth established the crime of indecent assault “because of a concern for the shame, outrage, and disgust engendered in the victim, rather than because of any physical injury to the victim.” Commonwealth v. Hawkins, 419 Pa.Super. 37, 44, 614 A.2d 1198, 1201 (1992) (citations omitted). Moreover, “[d]ue to the nature of the offenses sought to be proscribed by the indecent assault statute, and the range of conduct proscribed, the statutory language does not and could not specify each prohibited act.” Id. Clearly, it does not strain the very limits of credulity to suggest that, when J.R. removed A.B.’s clothing, lifted her up, and licked her vaginal area, his conduct fell within the purview of the indecent assault statute. Accordingly, J.R.’s argument is once again without merit.

Although we presently affirm J.R.’s adjudication of delinquency, we think it extremely important to pause and address the distressing implications inherent in our decision. In the case at hand, J.R., age 13, sexually assaulted his four year-old cousin A.B. For this deplorable act, the trial court placed J.R. within a juvenile detention center, where he is required to complete the Juvenile Services Sexual Offender and the Appalachian Youth Services Day Treatment Programs. Once completing these programs, J.R. will be placed on probation for an indeterminate period of time. While we sincerely hope that J.R.’s stay within our juvenile system will cure him of his criminal propensities, we fear that it will not, and that the public at large, upon J.R.’s release, will remain perilously unaware of the menace that he presents to their children and to society.

Under the current construction of the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., unless a juvenile fits within a decidedly narrow class of offenders, the record of that juvenile’s crimes is not made available to the public as a whole. Specifically, section 6308 of the Juvenile Act provides:

(b) Public availability—
(1) The contents of law enforcement records and files concerning a child shall not be disclosed to the public except if the child is 14 or more years of age at the time of the alleged conduct and if any of the following apply:
(i) The child has been adjudicated delinquent by a court as a result of an act or acts which include the elements of rape, kidnapping, murder, robbery, arson, burglary, violation of section 13(a)(3) of the ... Controlled Substance, Drug, Device, and Cosmetic Act, or other act involving the use of or threat of serious bodily harm.
(ii) A petition alleging delinquency has been filed by a law enforcement agency alleging that the child has committed an act of acts which includes the elements of rape, kidnapping, murder, robbery, arson, burglary, violation of section 13(a)(3) of the ... Controlled Substance, Drug, Device, and Cosmetic Act, or other act involving the use of or threat of serious bodily harm and the child previously has been adjudicated delinquent by a court as a result of an act or acts which included the elements of one of such crimes.
(iii) The child is a dangerous juvenile offender.

42 Pa.C.S.A. § 6308(b) (emphasis added). A child is considered a “dangerous juvenile offender” under subsection (iii) only if a court determines that he or she meets all of the following requirements:

(1) Is 15 years of age or older.

(2) Has been adjudicated delinquent for one or more of the following offenses:

(i) Attempted murder.

(ii) Voluntary manslaughter.

(iii) Rape.

(iv) Involuntary deviate sexual intercourse.

(v) Kidnapping.

(vi) Robbery.

(vii) Felonious aggravated assault.

(viii) Aggravated assault with a deadly weapon.

(ix) Arson.

(3) Has been previously adjudicated delinquent subsequent to the child’s 12th birthday for one or more of the following offenses:

(i) Attempted murder.

(ii) Voluntary manslaughter.

(iii) Rape.

(iv) Involuntary deviate sexual intercourse.

(v) Kidnapping.

(vi) Robbery.

(vii) Felonious aggravated assault.

(viii) Aggravated assault with a deadly weapon.

(ix) Arson.

An adjudication for an offense arising from the same criminal episode as the offense considered under paragraph (2) shall not be considered an adjudication for the purpose of this paragraph.

42 Pa.C.SA, § 6302 (emphasis added). Thus, under the Juvenile Act, upon J.R.’s release from juvenile detention, the public will remain wholly uninformed of the potential danger he represents to society, as J.R. falls under none of the three excepted classifications; he was under age 14 at the time he committed his delinquent acts, and even if he was over age 14, he neither committed one of the acts enumerated in section 6308(b)(i), nor had been previously adjudicated delinquent. As a result of this statutory prohibition, the citizens of this Commonwealth cannot take the steps necessary to ensure the safety of their children, but must instead rely on our system of rehabilitative treatment to “cure” the young offender and render him a productive and law abiding member of society.

The legislature of this Commonwealth enacted the Juvenile Act to effectuate the twin aims of rehabilitating the young offender and of protecting society by curing the young miscreant of his or her criminal proclivities. 42 Pa.C.S.A. § 6301(b)(2); In the Interest of McDonough, 287 Pa.Super. 326, 333, 430 A.2d 308, 312 (1981). The Juvenile Act is set up under a broad umbrella, where “the juvenile courts can operate fairly, yet with a degree of flexibility and informality.” In re K.B., 432 Pa.Super. 586, 598, 639 A.2d 798, 804 (1994).

Under the Juvenile Act, delinquency proceedings commence after a juvenile has been taken into custody by law enforcement officials. 42 Pa.C.S.A. § 6324. Once the youngster is in custody, the proceedings are separated into two distinct phases: the adjudicatory and the dispositional. During the adjudicatory phase, the juvenile’s case is considered by a judge, sitting without a jury. 42 Pa.C.S.A. § 6336(a). This hearing is designed to determine whether the juvenile committed acts which necessitate a finding of delinquency. “If, after reviewing the evidence presented by the [pre-hearing] petition and at the hearing, the juvenile court finds beyond a reasonable doubt that the child committed the delinquent act(s), it shall adjudge the juvenile, delinquent.” K.B. at 598, 639 A.2d at 804 (citing 42 Pa.C.S.A. § 6341(d)).

Once the juvenile is adjudged delinquent, the case proceeds to the dispositional phase, where the court must determine whether the child is in “need of treatment, supervision, and rehabilitation____” 42 Pa.C.S.A. § 6341(b). After reviewing “all evidence helpful in determining the questions presented” including oral and written “social reports,” the court “may impose a dispositional order calculated to provide the juvenile with a form of care and treatment for his individualized problems.” K.B. at 599, 639 A.2d at 804 (citing 42 Pa.C.S.A. § 6341(d), 6351(a)). These dispositions include, among other things: placing the child on probation; committing the child to an appropriate institution or rehabilitation center; or ordering the child to pay fines, costs, or restitution. 42 Pa.C.S.A. § 6352.

Throughout the entire process, moreover, the juvenile is treated far differently than his or her adult counterpart. A juvenile is shielded from public scrutiny as all hearings are closed to the general public. 42 Pa.C.S.A. § 6336(d). “[U]pon a finding of delinquency, the juvenile is not branded with the stigma of a criminal conviction, but is simply adjudged delinquent. The juvenile is not sentenced to lengthy terms in adult prisons, but is provided with forms of treatment and rehabilitation. Furthermore, throughout the entire judicial process, the juvenile faces not a court empowered with a limitless degree of discretion and authority to act as it sees fit, but is accorded a process which respects both the juvenile’s right to fair treatment and due process of law.” K.B. at 598-99, 639 A.2d at 805. Thus, the juvenile system is not set up “to punish an offender, but to salvage a boy who may be in danger of becoming one.... ” In re Holmes, 379 Pa. 599, 603, 109 A.2d 523, 525 (1954).

In short, it is readily apparent that the juvenile system is based upon the fundamental premise that the rehabilitation process will be successful and that, therefore, the public need not be informed of the juvenile’s identity, as he or she will not commit additional crimes. Upon close scrutiny, however, it is apparent that the foundation of the juvenile system rests upon unstable ground. Empirical data clearly indicates that, far from rehabilitating our juvenile offenders and decreasing the incidents of juvenile criminal activity, juvenile crime in this Commonwealth and this nation is drastically on the rise.

A recent study published by the Pennsylvania Commission ' on Crime and Delinquency (“PCCD”) depicts the magnitude of the escalation of juvenile crime in this Commonwealth. The PCCD reported the number of juvenile arrests for a variety of crimes for the years 1980 through 1991. The results of this study indicate a profound rise in the incidents of violent crimes committed by juveniles between 1988 and 1991. Arrests for murder increased by 20.3 percent, for rape by 16.6 percent, for aggravated assault by 28.8 percent, for robbery by 32.1 percent, and for arson by 19.1 percent. See PCCD BUREAU OF STATISTICS AND POLICY RESEARCH, PENNSYLVANIA JUVENILE ARRESTS FOR PART I CRIMES, 1980-1991 (1993).

The rate of juvenile crime nationally is also sharply on the rise. In July of 1994, the United States Department of Justice released the results of a study concerning the increase in juvenile crime from 1988 to 1992. Specifically, the Justice Department found a large upsurge in the number of serious offenses committed by juveniles. For example, murder increased by 55 percent, rape by 27 percent, aggravated assault by 80 percent, robbery by 52 percent, and arson by 24 percent. See JEFFREY A. BUTTS, U.S. DEP’T OF JUSTICE, DELINQUENCY CASES IN JUVENILE COURT, 1992 (Fact Sheet # 18, July, 1994).

The increased incidents of juvenile crime, moreover, is not limited to violent crimes. Since 1980, juvenile arrest rates for heroin and cocaine related crimes increased more than 700 percent. In 1990, one in every five high school students admitted to carrying a weapon sometime during the past month, while one in twenty admitted to carrying a gun. Since 1988, juvenile car theft has increased 34 percent, while vandalism has increased by 50 percent. See BARBARA ALLENHAGEN AND MELISSA SICKMUND, U.S. DEPT OF JUSTICE, JUVENILES AND VIOLENCE: JUVENILE OFFENDING AND VICTIMIZATION (Fact Sheet # 3, July, 1993). Equally alarming is the recidivism rate of juvenile offenders. In a 1987 study, the Center for Juvenile Justice Training and Research determined that 55 percent of all juveniles who were placed in public or private rehabilitation centers in this Commonwealth were rearrested following their release. See LYNNE GOODSTEIN, CENTER FOR JUVENILE JUSTICE AND TRAINING, A STUDY ON THE IMPACT OF TEN PENNSYLVANIA RESIDENTIAL PLACEMENTS ON JUVENILE RECIDIVISM (September 1987). In short, juvenile crime in the nation and in this Commonwealth is climbing by unprecedented rates, reaching unprecedented levels. The juvenile system, designed to curb the excesses of youth and to lessen the incidents of criminality, has proved neither an effective deterrent nor a successful tool for rehabilitation.

The result of the system’s failure is that the juvenile offender receives all of the benefits that the legislature provided under the Juvenile Act, while the general public is left wholly unaware that a given youngster might pose a threat to them, in general, and to their individual families, in particular. We cannot countenance such a consequence. Society needs to be protected from present day Fagins, who impudently thrive by thrusting our wayward children into a life of crime, as they know these children will not receive criminal sentences and will not be cast in the public eye. Parents need to be informed that the youngster next-door has a history of sexual offenses, so that their children can be free to play and run about in relative safety. School teachers and principals need to be notified that youngsters in their charge have a history of violent crimes, in order to ensure that our schools remain a safe place in which to learn.

We are fully cognizant that the problems concomitant with the treatment of juvenile offenders are vexing ones and that solutions are neither easily identifiable, nor readily capable of implementation. Nonetheless, we urge the legislature to examine the current state of the juvenile justice system and to develop new solutions to alleviate the current crisis surrounding juvenile crime. Some helpful suggestions spring to mind.

A system could be developed whereby the young offender is treated as a juvenile throughout the adjudicatory phase of the the proceedings, but is sentenced like an adult to a period of incarceration in a separate juvenile facility. If the juvenile reaches the age of 18 and has time remaining on his or her sentence, a hearing will be convened, during which a judge will determine whether the offender has been rehabilitated. If the judge concludes that the youth poses little danger to society, then his or her sentence can be commuted; if, however, the judge is not so convinced, then the juvenile can be sent to finish his or her term in an adult prison. This system would ensure that juveniles are punished according to the severity of their crimes and would work to provide a fair incentive to the juvenile to fully partake in the rehabilitation process.

Another potential solution would be to vest within the trial judge’s authority broad discretion to handle each juvenile on a case-by-case basis. Instead of handcuffing the trial court with strict sentencing guidelines, the judge could consider the severity of the crimes committed, the youth’s potential for rehabilitation, and the juvenile’s past history and background, and fashion an appropriate sentence. Under this system, the trial court could choose from a far broader array of potential punishments for our wayward youths. If, for example, the trial court believed that a first-time juvenile offender, who committed a dangerous crime such as rape or armed robbery, was incapable of rehabilitation, then the trial court could impose a sentence to be served in an adult prison. This system would enable the trial judge, the individual in the best position to explore the full range of options available, to set forth a suitable sentence.

Finally, the legislature could quite simply opt to leave the present system substantially intact, but choose to disclose to the public the records of the juvenile offenders. Although this solution would run counter to many of the present rehabilitative goals of the juvenile system as a whole, it would most surely provide a measure of safety and protection that the citizenry of this Commonwealth do not currently enjoy.

Whatever solution is ultimately instituted, one thing is incontrovertibly clear, the juvenile system needs to be fundamentally reevaluated to reflect the crisis surrounding its current operation. With juvenile crime rising to unprecedented levels, unprecedented action is required by the legislature. We can no longer afford to subject young children, like A.B., to the consequences of continued inaction and the status quo. And so, while today we affirm the order of the trial court sending young J.R. to juvenile detention and can only hope that he will be rehabilitated, let us take steps to ensure that tomorrow carries with it more certainty.

Order affirmed.

      . The record bears out this concession by J.R. as A.B.’s testimony and her other accounts of the incident in question were consistent and well articulated.

      . A "delinquent act” is defined as "an act designated a crime under the law of this Commonwealth, or of another state if the act occurred in that state, or under Federal law, or under local ordinance.” 42 Pa.C.S.A. § 6302.

      . Of course, if it is alleged either that the juvenile committed the act of murder, or that the juvenile committed a felony and is not considered “amenable to treatment, supervision, or rehabilitation as a juvenile,” then the case may be transferred to adult criminal court. 42 Pa.C.S.A. § 6355.

      . The PCCD released the following figures regarding the increase in juvenile crime in this Commonwealth:

      . The Justice Department released the following figures regarding the upsurge in serious juvenile offenses from 1988 to 1992:

        JEFFREY A. BUTTS, U.S. DEP'T OF JUSTICE, DELINQUENCY CASES IN JUVENILE COURT, 1992 (Fact Sheet # 18, July, 1994).

      . The study indicated that the younger a juvenile was at his or her first arrest, the more likely that he or she was to be arrested upon release. The study also determined no correlation between race, chemical dependency, or family stability on the likelihood of recidivistic behavior.

      . Fagin is that most memorable character created by Charles Dickens in Oliver Twist, who preyed on orphaned children, forcing them to commit all manner of crimes for his own benefit.


author: JOHNSON, Judge: HOFFMAN, Judge,

text:
    648 A.2d 38
    Beth VAUGHN, Appellant, v. Noubar A. DIDIZIAN, M.D.
    Superior Court of Pennsylvania.
    Argued April 26, 1994.
    Filed Sept. 16, 1994.

      Girard E. Rickards, Harrisburg, for appellant.
    Albert A. Citro, III, Broomall, for appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

In this appeal, we are asked to determine whether a general release which discharges all known and unknown claims arising as a result of an automobile accident may bar a medical malpractice action for negligent treatment of injuries sustained in the accident when the medical treatment occurred nine months after the release was executed. In light of the conditions and circumstances surrounding its execution, we hold that the release cannot be construed so as to bar this medical malpractice action because the parties could not have contemplated the future negligent treatment when the release was executed, and the medical malpractice claim had not accrued at the date of the execution of the release. Accordingly, we reverse the order granting summary judgment and remand the matter for further proceedings.

On August 12, 1983, Beth Vaughn, while a passenger in a vehicle driven by Tonyia Woods, was involved in an automobile accident when Woods lost control of the vehicle and the car rolled over. As a result of the accident, Vaughn sustained various injuries, including a fractured pelvis, fractured ribs, a fractured shoulder and a concussion.

On November 22, 1983, Vaughn, in exchange for $33,000, executed the release in question which, in pertinent part, provides:

... the undersigned hereby releases and forever discharges Donald Woods and Tonyia Woods and all other persons, firms and corporations from all claims and demands, rights and causes of action of any kind the undersigned now has or hereafter may have on account of or in any way growing out of personal injuries known or unknown to me/us at the present time ... resulting or to result from an occurrence which happened on or about August 12, 1983____

Approximately seven months later, Vaughn first sought treatment from Dr. Didizian, an orthopedic surgeon, for spinal injuries she received in the accident of August 12, 1983. On August 1, 1984, Didizian performed surgery upon Vaughn. Subsequently, Vaughn commenced this medical malpractice action against Didizian, alleging that the doctor, was negligent in performing the surgery.

On February 14, 1992, Didizian filed a motion for summary judgment. That motion was denied without prejudice. Didizian was granted leave to amend his answer to add the affirmative defense of release. Didizian later amended his answer to allege that Vaughn was barred from bringing this medical malpractice action by the release she executed on November 22, 1983. Didizian then filed a second motion for summary judgment which the trial court granted. Vaughn now appeals.

On appeal, Vaughn contends that the trial court erred in granting Didizian’s motion for summary judgment because (1) the parties to the release did not intend to bar Vaughn’s action for Didizian’s future negligence and, (2) such interpretation of the release is contrary to the public policy of the Commonwealth of Pennsylvania.

Preliminarily, we note that when reviewing a trial court order granting summary judgment, “we will not reverse the trial court’s order unless there has been an error of law or a manifest abuse of discretion.” Denlinger, Inc. v. Dendler, 415 Pa.Super. 164, 170, 608 A.2d 1061, 1064 (1992).

First, Vaughn argues that the trial court erred in granting summary judgment because the parties to the release did not intend to bar a malpractice claim for medical treatment that occurred after the release was executed. “The courts of Pennsylvania have traditionally determined the effect of a release using the ordinary meaning of its language and interpreted the release as covering ‘only such matters as can fairly be said to have been within the contemplation of the parties when the release was given.’ ” Dublin by Dublin v. Shuster, 410 Pa.Super. 1, 6-7, 598 A.2d 1296, 1298-99 (1991) (emphasis added), appeal denied, 533 Pa. 600, 617 A.2d 1274 (1992), quoting Estate of Bodnar, 472 Pa. 383, 386, 372 A.2d 746, 748 (1977). Moreover, releases are strictly construed so as not to bar the enforcement of a claim which had not accrued at the date of the execution of the release. Restifo v. McDonald, 426 Pa. 5, 230 A.2d 199 (1967); Henry Shenk Co. v. City of Erie, 352 Pa. 481, 43 A.2d 99 (1945); Zurich General Acc. & Liab. Ins. Co. v. Klein, 181 Pa.Super. 48, 121 A.2d 893 (1956).

In this case, the trial court utilized the first component of construing the effect of the release, i.e., examining the ordinary meaning of its language, and concluded that Didizian is covered by the release. However, in limiting its review to the language of the release, the court failed to consider the second component, i.e., a release covers only those matters within the parties’ contemplation. In construing this general release, a court cannot merely read the instrument. Instead, it is crucial that a court interpret a release so as to discharge only those rights intended to be relinquished. The intent of the parties must be sought from a reading of the entire instrument, as well as from the surrounding conditions and circumstances. Thus, the trial court erred in failing to construe the language of this general release in light of the conditions and circumstances surrounding its execution.

In Henry Shenk, supra, the supreme court determined the effect of a release by analyzing the conditions surrounding its execution to ascertain the parties’ intent. There, the plaintiff owned property on East Twelfth Street in Millcreek Township, later incorporated into the City of Erie. The property owners along the street waived the right to claim damages sustained by their properties resulting from street improvement to enable the township to widen the roadway. Approximately thirty years later, after East Twelfth Street had been incorporated into the City of Erie, the city implemented plans for additional improvements to be made, specifically, the construction of drainage facilities. Plaintiff sought damages when the installation of the drainage facilities caused harm to its property. The City of Erie maintained that the plaintiff had waived its right to claim damages with respect to the improvement of East Twelfth Street. However, the supreme court first noted the cardinal rule of construction requiring that releases be strictly construed so as to not bar the enforcement of claims not yet accrued at the date of execution. The court then reasoned that it would be illogical to conclude that the plaintiffs waiver of damages incident to the widening and improvement of East Twelfth Street was intended to constitute a waiver of damages resulting from a different improvement almost thirty years later.

Guided by the same reasoning, it would be equally absurd in this case to conclude that the parties intended to waive damages resulting from Didizian’s alleged negligence when the release was executed approximately seven months before Vaughn first sought treatment from Didizian. When we examine the conditions and circumstances surrounding the execution of the release in this case, we find that Vaughn’s malpractice claim for the allegedly negligent surgery performed on August 1, 1984, had not yet accrued at the date of the execution of the release, November 22, 1983. Nothing in the circumstances of this case suggests that the parties to the release were anticipating Didizian’s negligent surgery. Because Didizian’s future negligent treatment was not within the contemplation of the parties, and the malpractice claim had not yet accrued at the date of the execution of the release, the release does not encompass this medical malpractice action and cannot be construed so as to bar the enforcement of Vaughn’s medical malpractice claim.

Furthermore, Didizian cites no authority in which a Pennsylvania court has held that a general release discharged claims that had not yet accrued at the date of the execution of the release. In addition, our research has failed to uncover such a case. In the case cited by our distinguished colleague in dissent, Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), and in each case cited by Didizian, Dublin by Dublin v. Shuster, 410 Pa.Super. 1, 598 A.2d 1296 (1991), appeal denied, 533 Pa. 600, 617 A.2d 1274 (1992); Smith v. Thomas Jefferson University Hospital, 424 Pa.Super. 41, 621 A.2d 1030 (1993), appeal denied, 535 Pa. 638, 631 A.2d 1009 (1993); Holmes v. Lankenau Hospital, 426 Pa.Super. 452, 627 A.2d 763 (1993); and Flatley by Flatley v. Penman, 429 Pa.Super. 517, 632 A.2d 1342 (1993), appeal denied, 537 Pa. 620, 641 A.2d 586 (1994), the cause of action accrued prior to the execution of the release. In this case, the cause of action accrued after the release was executed. Thus, reliance on these cases is misplaced.

Since we hold that the release in question does not bar Vaughn’s medical malpractice claim, we conclude that the trial court erred in granting Didizian’s motion for summary judgment. In light of this conclusion, we need not address Vaughn’s remaining issue.

Accordingly, we reverse the trial court’s order which granted summary judgment in favor of Didizian. We remand this case for further proceedings consistent with this Opinion.

Order reversed. Case remanded. Jurisdiction relinquished.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting.

In Buttermore v. Aliquippa Hospital, 522 Pa. 325, 329-30, 561 A.2d 733, 735 (1989), our Supreme Court held with respect to general releases that “[hjowever improvident their agreement may be or subsequently prove for either party, their agreement, absent fraud, accident or mutual mistake, is the law of the case.”

In the present case the release provides in pertinent part as follows:

For the sole consideration of $33,000.00, the undersigned hereby releases and forever discharges Donald Woods and Tonyia Woods and all other persons, firms and corporations from all claims and demands, rights and causes of action of any kind the undersigned now has or hereafter may have on account of or in any way growing out of the personal injuries known or unknown to me ... resulting or to result from an occurrence which happened on or about August 12, 1983....

The plain language of this release indicates that Dr. Didizian’s treatment of appellánt is covered under the release. Although the majority finds that Dr. Didizian’s treatment was not in the contemplation of the parties when the release was executed, I disagree. Had possible future claims not been within the contemplation of the parties, the language of the release would not clearly discharge all persons from all claims, known or unknown to appellant at the present time, which arise out of the August 12, 1983 accident. Accordingly, for the reasons stated above, I must respectfully dissent.