author: WIEAND, Judge:

text:
    527 A.2d 148
    COMMONWEALTH of Pennsylvania, Appellee, v. Percy Russell RHOADES, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 2, 1987.
    Filed June 12, 1987.

      Joseph L. Amendola, State College, for appellant.
    Ray F. Gricar, District Attorney, Bellefonte, for Com., appellee.
    Before WIEAND, BECK and CERCONE, JJ.
   WIEAND, Judge:

Percy R. Rhoades was tried by jury and was found guilty of indecent assault and corruption of a minor because of the sexual molestation of P.S.B., an eight year old female child. Post-trial motions were denied, and Rhoades was sentenced to concurrent terms of imprisonment of not less than one year nor more than two years for indecent assault and not less than two and one-half years nor more than five years for corrupting a child. On direct appeal, he argues (1) that inculpatory statements which he made to another prisoner should have been suppressed; (2) that the trial court erred when it held admissible as an excited utterance a hearsay statement by P.S.B. that her father would not have shot her mother if it had not been for what Rhoades had done to her; (3) that the trial court erred by disallowing testimony of prior conduct of the child victim; (4) that he should have been permitted to show the jury his pre-trial willingness to submit to a penile tumescence test intended to show that he was impotent; and (5) that the sentencing court imposed a sentence which exceeded that recommended by the sentencing guidelines. We find no merit in these contentions and, therefore, affirm the judgment of sentence.

The evidence showed that on April 28, 1984, P.S.B. was induced by Rhoades and P.S.B.’s mother to masturbate Rhoades in his trailer at Wingate, Centre County. P.S.B. and her mother were then taken to their home in Curtin Village by Rhoades. When P.S.B.’s father returned home and learned what had happened, he took a gun and shot his wife.

After Rhoades had been formally charged and arrested pursuant to warrant, he was placed in the Centre County Prison. Vincent Carracciolo was housed in an adjoining cell where he was being held for security reasons because of his cooperation with authorities in their investigation of organized crime. Observing that Rhoades was visibly upset, Carracciolo asked him what was wrong. Rhoades told him that he had been involved with P.S.B.’s mother for several years and had lived with her at one time. He told Carrac-ciolo about the incident in which P.S.B. and her mother had masturbated him in his trailer. Rhoades also said that he had “paid” P.S.B.’s mother for the child with a case of beer and that he was trying to “keep her” until she was old enough to have intercourse with him. Rhoades argues that his statements should have been suppressed because his admissions were obtained in violation of his Sixth Amendment right to have counsel present during interrogation.

In Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), the Supreme Court said:

The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a “medium” between him and the State____ [T]his guarantee includes the State’s affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking this right. The determination whether particular action by state agents violates the accused’s right to the assistance of counsel must be made in light of this obligation. Thus, the Sixth Amendment is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached____ However, knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.

Id. at 176, 106 S.Ct. at 487, 88 L.Ed.2d at 496 (citation and footnote omitted). See: Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986); United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); United States v. Hicks, 798 F.2d 446 (11th Cir.1986).

The incriminating statement made by appellant was elicited without any deliberate attempt by representatives of the Commonwealth to interrogate appellant about his molestation of P.S.B. Although Carracciolo had been isolated from the general prison population for his own safety, appellant’s placement in the adjoining cell was the result of happenstance. It was not the result of design to obtain from him an incriminating statement. Carracciolo had not been requested by police to interrogate Rhoades and was not promised favorable treatment for his testimony against Rhoades. Carracciolo testified that he had engaged Rhoades in conversation because Rhoades appeared to be upset and not for the purpose of obtaining an incriminating statement. He subsequently told police of his conversation at his own instance and without any request therefor by police.

In United States v. Hicks, supra, the defendant had been arrested and advised of her rights to counsel and to remain silent. She elected to remain silent and also requested an attorney. After having been processed and placed in jail, she met Marilyn West Armstrong (West) who was being held on a charge of parole violation. During conversation between the women, defendant made a “jailhouse confession.” Prior to trial, defendant moved to suppress the statement which she had made to West on the ground that it had been obtained in violation of her right to counsel. The motion was denied, and defendant was convicted of drug offenses. On appeal, the Court of Appeals for the 11th Circuit affirmed. The Court held that because West had not been deliberately planted in custody to obtain information and had not been instructed by law enforcement officials to gather information while in custody, no violation of defendant’s Sixth Amendment rights had occurred. The fact that West had worked as a government informant on an unrelated matter, the Court concluded, did not render her an agent of the government for all purposes.

Hicks is on all fours with the instant case. Although Carracciolo had cooperated with the Commonwealth on unrelated matters, he was not acting on behalf of the Commonwealth when he engaged Rhoades in conversation. Rather, he was acting on his own initiative, without any promise of benefit from the Commonwealth. In this respect, he was no different than any other prisoner to whom appellant might have spoken. The admission of an incriminatory statement made under these circumstances did not violate Rhoades’ Sixth Amendment rights.

After the shooting of P.S.B.’s mother, the father summoned his nephew, Donald Shay, who rushed to the family’s home. There, he removed P.S.B. from the residence and took her to his car. He also called his wife, Margie, and asked her to meet him. P.S.B., visibly upset, said to him that the shooting wouldn’t have occurred if it hadn’t been for Rhoades. She then told her cousin about her participation in the masturbation of Rhoades. Later, while still crying, she told Margie Shay, who was trying to calm her, “Daddy would never have done it if mommy and [Rhoades] wouldn’t have done what they did.” She again repeated what had happened at the Rhoades trailer. The trial court, over objection, allowed the Shays to testify to the hearsay statements which had been made by P.S.B. The court held they were admissible under the excited utterance exception to the hearsay exclusion.

An excited utterance is the event speaking and not the speaker. It is an exception to the hearsay rule, carved from human experience, which teaches that an unreflected, spontaneous utterance made under the impact of a shocking, unexpected emotion, precipitated by a traumatic event, renders the speaker the medium and not the message. Such an utterance is allowed in evidence because it is spontaneous and unreflected, without influence from thought, design and reason. It is not accepted because the statement is or must be true, but because it could be at least as true as any other evidence. Before such evidence is received, it must be carefully weighed. As this Court stated in Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978):
“To come within the excited utterance exception to the hearsay rule, a statement must be:
... ‘a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.’ ” (citation omitted)

Id., 477 Pa. at 137-138, 383 A.2d at 860.

Commonwealth v. Zukauskas, 501 Pa. 500, 503-504, 462 A.2d 236, 237-238 (1983). See: Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966); Commonwealth v. Stohr, 361 Pa.Super. 293, 522 A.2d 589 (1987); 29 Am.Jur.2d Evidence § 708 (2d ed. 1967); McCormick on Evidence § 297 (3d ed. 1984); D. Binder, The Hearsay Handbook 41-48 (1975).

The relevant authorities teach that there are three requirements which must be met for an extra-judicial statement to be rendered admissible as an excited utterance. First, it must be shown that the declarant “witnessed an event sufficiently startling and so close in point of time as to render his reflective thought processes inoperable.” Commonwealth v. Pronkoskie, supra 477 Pa. at 138, 383 A.2d at 860, citing Commonwealth v. Little, 469 Pa. 83, 364 A.2d 915 (1976) and Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975). See: Commonwealth v. Galloway, 336 Pa.Super. 225, 485 A.2d 776 (1984). Second, “the declaration [must] be a spontaneous reaction to the startling event____ [However], there is no clear-cut rule as to the time sequence; whether the actual delay between the event and the statement is sufficient to negate ‘spontaneity’ must be resolved in light of the particular facts of each case.” Commonwealth v. Pronkoskie, supra 477 Pa. at 141-142, 383 A.2d at 862-863, citing Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1974); Commonwealth v. Cheeks, supra; Commonwealth v. Stokes, 409 Pa. 268, 186 A.2d 5 (1962). See: Commonwealth v. Zukauskas, supra; Commonwealth v. Cooley, supra; Commonwealth v. Stohr, supra. Finally, the declaration “must be ‘made in reference to some phase of [the] occurrence which [the declar-ant] perceived.’ ” Commonwealth v. Edwards, 431 Pa. 44, 49, 244 A.2d 683, 685 (1968), quoting Carney v. Pennsylvania Railroad Co., 428 Pa. 489, 493, 240 A.2d 71, 73 (1968). It must “in some way elucidate, qualify, or characterize the act in question.” 29 Am.Jur.2d, supra § 708, at 769.

In the instant case, the evidence showed that the eight year old declarant had just witnessed her father fatally shoot her mother following his learning of the sexual act in which the child and her mother had participated earlier on the same evening. It is difficult to perceive of a more startling and devastating event than to witness the shooting of one’s mother by his or her father. Such an event was of the type which rendered the child’s thought processes inoperable.

P.S.B.’s statements to Donald and Margie Shay occurred approximately 30-45 minutes after the shooting. Our courts have held that time lapses equal to and greater than this do not bar the admission of a statement “where the spontaneity born of excitement is otherwise satisfactorily shown to exist.” Commonwealth v. Cooley, supra 465 Pa. at 41, 348 A.2d at 107. See: Commonwealth v. Cheeks, supra (45 minutes); Commonwealth v. Blackwell, 343 Pa. Super. 201, 494 A.2d 426 (1985) (30-45 minutes); Commonwealth v. Von Smith, 303 Pa.Super. 534, 450 A.2d 55 (1982) (55 minutes); Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982) (30 minutes); Commonwealth v. Navarro, 276 Pa.Super. 153, 419 A.2d 141 (1980) (30 minutes), aff'd, 499 Pa. 279, 453 A.2d 308 (1982); Commonwealth v. Hess, 270 Pa.Super. 501, 411 A.2d 830 (1979) (30 minutes); Commonwealth v. Dugan, 252 Pa.Super. 377, 381 A.2d 967 (1977) (within two and one-half to three hours); Commonwealth v. Dessus, 214 Pa.Super. 347, 257 A.2d 867 (1969) (within one hour); Commonwealth v. Nowalk, 160 Pa.Super. 88, 50 A.2d 115 (1947) (several hours). Both witnesses in the instant case testified that P.S.B. was very upset and crying when she made the statements challenged as hearsay. Given this testimony and the devastating nature of the event that P.S.B. had observed, it seems eminently clear that she was laboring under the overpowering emotional reaction caused by the shooting of her mother.

That P.S.B. had been alone with her father during the first 20-25 minutes following the shooting did not, contrary to Rhoades’ argument, render her extra-judicial statements inadmissible. Donald Shay testified that he had spoken to P.S.B. on the telephone immediately after the shooting and that she was very upset at this time. When he arrived at the Bryan home 20-25 minutes later, he said, P.S.B. was still very upset and remained so during the entire time before he delivered her to his wife. Both Shays tried unsuccessfully to calm the child. It is difficult to believe, under these circumstances, that P.S.B. had been induced by her father to make false statements against Rhoades. We conclude, therefore, that the second requirement of spontaneity was met.

The final requirement is that the excited utterance must be related to some phase of the startling occurrence. In the instant case, P.S.B.’s statements referred both to the shooting and the sexual assault, which had occurred several hours earlier. The evidence shows that these events were inextricably interrelated; it was only upon learning of the sexual assault that P.S.B.’s father retrieved a gun and shot her mother. We conclude, therefore, that the third and final requirement was also satisfied in this case. Therefore, the testimony of Donald and Margie Shay was properly received at trial.

Rhoades’ next contention is that the trial court erred when refusing to allow a defense witness to testify about activities of the victim which he had observed prior to the sexual molestation of the child by Rhoades. The witness, Tim Young, would have testified that P.S.B. had once walked in on him while he was using the outhouse; that P.S.B. had once put her hand on Young’s crotch; and that Young had once seen P.S.B. wiping her hands as she was leaving the bedroom which she had shared with her father. Appellant argues that this testimony was relevant to rebut an inference suggested by the Commonwealth’s evidence that P.S.B. knew about the biological functions of the male penis as a result of her illicit contact with him. We disagree. That P.S.B. may have on one occasion observed a man urinating or had once touched a man’s crotch was completely unrelated to the issues being tried. Similarly, that P.S.B. may have emerged from the bedroom which she shared with her father while wiping her hands falls far short of suggesting that her testimony in this case was the product of having shared a room with her father. Nor, as Rhoades contends, does it corroborate other evidence tending to suggest that P.S.B. had been sexually abused by her father. That a young girl emerges from a bedroom wiping her hands does not suggest sexual activity. The trial court did not err by excluding such testimony.

Appellant also contends that the trial court erred when it (1) refused to permit him to testify that he had wanted to submit to a medical test, known as a penile tumescence, to confirm that he was impotent; and (2) disallowed testimony by the clerk of courts that Rhoades had filed a petition for an order requiring the Commonwealth to pay for the medical test and that the petition had been denied by the court. Appellant’s first contention is without factual support. Rhoades was in fact permitted to testify before the jury that he had wanted to submit to the medical test but that the test had not been conducted because of his inability to pay the cost thereof.

The testimony of the clerk of courts was properly excluded. “An accused has a fundamental right to present defensive evidence so long as such evidence is relevant and not excluded by an established evidentiary rule.” Commonwealth v. Greene, 469 Pa. 399, 405, 366 A.2d 234, 237 (1976), citing Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972). “Evidence is relevant if it in some degree advances the inquiry, making the desired inference more probable than not____ The admission of such evidence rests with the discretion of the trial court.” Commonwealth v. Russell, 326 Pa.Super. 346, 349, 473 A.2d 1383, 1384 (1984). See: Commonwealth v. Brown, 489 Pa. 285, 303, 414 A.2d 70, 79 (1980); Commonwealth v. Walzack, 468 Pa. 210, 218, 360 A.2d 914, 918 (1976).

Appellant’s purpose in offering the clerk’s testimony was to persuade the jury that it was more probable than not that he was, in fact, impotent and, therefore, incapable of assaulting P.S.B. sexually. The desired inference, however, was a non sequitur. Merely because Rhoades may have desired to submit to the test did not tend to show that the tests would have shown impotency. Because the proffered testimony was irrelevant, it was properly disallowed by the trial court.

Section 9781 of the Sentencing Code provides, in pertinent part, as follows:

(a) Right to appeal. — The defendant or the Commonwealth may appeal as of right the legality of the sentence.
(b) Allowance of appeal. — The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

42 Pa.C.S. § 9781.

In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the Supreme Court reviewed these provisions and concluded:

It is apparent [from a review of the Sentencing Code] that the legislature has vested broad discretion in the trial court to impose a sentence appropriate to each case which comes before it. It is also apparent that the legislature has provided a thorough, though not exhaustive, outline of considerations to focus the court’s deliberations in choosing an appropriate sentence. It is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.

Id., 513 Pa. at 515, 522 A.2d at 20. The Supreme Court further held that it had been error for the Superior Court to consider the merits of a challenge to the discretionary aspects of a sentence where the appellant failed to comply with the mandates of Pa.R.A.P. 2119(f), which provides that

[a]n 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.

See: Commonwealth v. Tuladziecki, supra, 513 Pa. at 511, 522 A.2d at 19.

In the instant case, Rhoades does not challenge the legality of the sentence imposed. He contends, rather, that the sentence was excessive under the factual circumstances and was outside the range of sentences suggested by the sentencing guidelines. This challenge is to the discretionary aspects of the sentence. However, he has failed to set forth in his brief a concise statement of the reasons relied upon to persuade this Court to allow a review of the discretionary aspects of the sentence. Pa.R.A.P. 2119(f). Tuladziecki teaches that under these circumstances we may not consider the merits of the sentencing issue.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 3126.

      . Pa.C.S. § 6301.

      . This evidence consisted of testimony that P.S.B. and her father had shared the same bedroom (although two separate beds were contained therein) and that in the fall of 1983 a complaint had been filed with the Centre County Department of Children and Youth Services alleging that P.S.B.’s father had sexually abused her. This complaint, however, had been determined to be unfounded by Children and Youth Services.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    527 A.2d 155
    Mary A. FLORY, Appellant, v. Paul Thomas FLORY, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1987.
    Filed June 12, 1987.

      Darrell N. Van Ormer, Jr., Elizabethtown, for appellant.
    David E. Wagenseller, III, Lancaster, for appellee.
    Before BECK, HESTER and ROBERTS, JJ.

       This decision was rendered prior to the death of Justice Roberts.

   BECK, Judge:

This appeal presents the issue of whether the income from a child’s guardianship account, established in settlement of a tort claim of the child, can be used to meet his support needs. We hold that such use of the income is improper unless the court determines that his parents are unable to provide for his support out of their own resources.

Plaintiff-appellant, Mary A. Flory, and defendant-appel-lee, Paul Thomas Flory, were married on August 30, 1970. Four children were born during the marriage: Paul, age 14; Joseph, age 12; Margaret, age 10; and Jacob, age 8. The parties separated in February of 1981. Appellant subsequently filed a complaint for support, and on March 25, 1983 an order was entered directing appellee to pay $80 a week support for the four children.

The parties were divorced on January 27, 1984, at which time an amended order was entered directing appellee to pay $60 a week for the support of Paul, Margaret, and Jacob. Support for Joseph was not provided.

On July 18, 1985, appellee filed a petition to modify, seeking credit for six weeks’ support for the period in the summer when he had temporary physical custody of the children. On September 11, 1985, appellant petitioned for an increase in the amount of the support order, alleging changed circumstances.

A conference was held before a domestic relations hearing officer on September 17, 1985. No agreement was reached, and the case was listed as complex. Following a hearing on April 7, 1986, the trial court dismissed both petitions for modification. This timely appeal by Mrs. Flory followed.

Appellant first contends that the trial court erred in allowing appellee’s support obligation to one of his four children, Joseph, to be satisfied from a guardianship account established in settlement of Joseph’s personal injury tort claim without first engaging in a searching inquiry into appellee’s ability to support Joseph out of his own financial resources. We agree.

Our scope of review in a support proceeding is a narrow one. Absent a clear abuse of discretion, we will defer to the order of the trial court. Banks v. Banks, 275 Pa.Super. 439, 418 A.2d 1370 (1980). Abuse of discretion occurs if, “in reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence of the record.” Prescott v. Prescott, 284 Pa.Super. 430, 435, 426 A.2d 123, 126 (1981). We find that the trial court committed an error of law in failing to follow the analysis outlined in Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764 (1985), allocatur granted, 509 Pa. 436, 502 A.2d 1231 (1985).

In Sutliff v. Sutliff, we held that the assets of a minor child held by a custodian under the Uniform Gifts to Minors Act may not be considered in determining the support obligation of a parent who is financially able to support his minor child. We explained that:

The primary basis of our holding is the paramountcy of a parent’s obligation to support his or her minor children. We have described this duty as ‘well nigh absolute.’ Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 40, 457 A.2d 98, 102 (1983). Both parents have an equal obligation to support their children in accordance with the capacity and ability of each to do so. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974); Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981); Commonwealth ex rel. Mainzer v. Audi, 266 Pa.Super. 122, 403 A.2d 124 (1979). A parent is required to sacrifice personal luxuries to provide his or her children with their needs. Conway v. Dana; Commonwealth ex rel. Williams v. Williams, 242 Pa.Super. 550, 364 A.2d 410 (1976); Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963). The only limitation is that a support order should allow for reasonable living expenses of the paying parent and not be punitive or confiscatory. Shank v. Shank, 298 Pa.Super. 459, 444 A.2d 1274 (1982); Dugery v. Dugery, 276 Pa.Super. 51, 419 A.2d 90 (1980).
The above cases are clearly predicated on the principle that the burden of supporting minor children is to be borne by the parents, and that the courts will not allow a minor child to fend for himself when his parents are able to support him.

Id., 339 Pa.Super. at 538-39, 489 A.2d at 771.

Thus, a parent should not typically be permitted to evade his or her obligation of support to a child by depleting the child’s own assets. However, where the parents are genuinely unable to provide for their child’s needs, the child’s trust income can be applied to his support. On remand, we direct the trial court to examine the reported financial resources, earning ability, and living expenses of the parties and determine whether or not they should be expected to provide support for Joseph from their own resources.

We note that in calculating the support appellee is able to provide Joseph, the court must take into account the legitimate support needs of the other children. The court must determine the overall amount appellee is able to pay in support of his children. Then it must determine the different individual needs of appellee’s children other than Joseph. Appellee’s resources must be allocated first to those of his children without another source of income. If appellee’s resources are sufficient to meet those needs, the court should then apply them to Joseph’s maintenance. If there is a deficiency, the deficiency may be made up by income from Joseph’s guardianship account.

Appellant further contends that the trial court erred by basing its assessment of appellee’s ability to pay support solely on the income he reported on his federal income tax return. We agree with appellant that it is actual financial resources and earning ability, not merely taxable income, that is relevant in determining a parent’s support obligation. Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981); Shuster v. Shuster, 226 Pa.Super. 542, 323 A.2d 760 (1974). Federal income tax law permits deductions that may not reduce a parent’s disposable income:

It is well established that in evaluating a parent’s support obligation the lower courts should consider the parent’s income (or potential earning power if there is a disparity between that figure and actual income) and the full nature and extent of the parent’s property interests and financial resources____ The parent’s stock holdings, and other investments, at their market value, are among the factors the lower court should consider____ Quite naturally, the court should consider a parent’s income, from whatever source; included in income should be monies received from the rental of real estate, but that “income” must reflect actual available financial resources and not the oft-time fictional financial picture which develops as the result of depreciation deductions taken against rental income as permitted by the federal income tax laws____ Otherwise put, ‘cash flow’ ought to be considered and not federally taxed income.

Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. at 568-69, 429 A.2d at 668-669 (citations omitted).

Reversed and remanded for proceedings consistent with this opinion.


author: POPOVICH, Judge:

text:
    527 A.2d 158
    COMMONWEALTH of Pennsylvania v. Helmut W. BRINSA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 1, 1986.
    Filed June 12, 1987.

      Michael K. Drapkin, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Comm., appellee.
    Before MONTEMURO, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County, later reduced to judgment of sentence, finding the appellant, Helmut W. Brinsa, guilty of the summary offense of leaving the scene of an accident (75 Pa.C.S. § 3743). We reverse.

Following the appellant’s conviction of the offense stated and the imposition of sentence ($300.00 fine and $25.50 in costs for prosecution) by the district magistrate, a timely appeal to the Common Pleas Court was perfected in accordance with Pa.R.Crim.P. 86(a).

At the January 16, 1986 trial de novo, the arresting officer and the appellant presented conflicting versions of the most appropriate location the appellant’s vehicle could have pulled off the road without obstructing traffic — the officer stated: at the site of the accident; the appellant testified: lh mile down from the accident. No verdict was entered at the conclusion of the trial. Rather, the trial court adjudged the appellant guilty of violating § 3743(a) by order dated January 21, 1986. This “form” document also advised the appellant, purportedly through the mail since no sentencing proceeding is recorded to have occurred, of his post-trial rights under Pa.R.Crim.P. 1123(a) & (c) and suspended the sentence imposed by the district magistrate, which appears to have been adopted by the trial court as its own without specific mention as to the amount involved or the reasons for doing so as required by Pa.R.Crim.P. 1405.

It is obvious from the record before this Court that no sentencing proceeding was conducted in open court; nor was the appellant advised of his Rule 1123 rights in the same forum.

Because of the procedural irregularities which prompted this Court to reverse and remand in Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987) (Opinion by Popovich, J., with Montgomery, J., Concurring in Result and Brosky, J., dissenting), which plague this case as well, we will apply the same remedy here as we did in Ragoli

In particular, the July 1, 1986 order of the Court of Common Pleas of Allegheny County, which activated the “suspended” judgment of sentence of January 1, 1986, is reversed and the case is remanded “with directions that the trial court enter a finding of guilty or not guilty in accordance with accepted practice in this Commonwealth, and, if the verdict is guilty, to impose sentence as more fully detailed in the ... [Ragoli ] opinion. Jurisdiction is not retained by this Court.” Id., 362 Pa.Superior Ct. at 402, 524 A.2d at 939.

MONTGOMERY, J. concurs in the result.


author: HESTER, Judge:

text:
    527 A.2d 159
    In re ESTATE OF Martha DARLINGTON, Deceased. Appeal of Jared DARLINGTON. In re ESTATE OF Jesse DARLINGTON, Deceased. Appeal of Jared DARLINGTON, Executor of the Estate of Jesse Darlington.
    Superior Court of Pennsylvania.
    Argued April 23, 1987.
    Filed June 18, 1987.

      William D. March, Media, for appellant.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   HESTER, Judge:

Martha Darlington died intestate on June 11, 1979. The issue on appeal is whether she died owning a one-fourth interest in a 187 acre tract of land in Darling, Pennsylvania, known as the Darlington Farm, or whether she had transferred her interest in that farm inter vivos to Jared Dar-lington, her nephew. The auditing judge found that the deed transferring her interest in the property to Jared had not been delivered to him and held that she therefore owned her interest in the property at her death. As we conclude that this finding is supported by competent evidence, we affirm.

Martha died the record owner of a one-fourth interest in the Darlington Farm. Shortly after her death, a handwritten document was discovered in her desk; it read:

I sold my interest in the Home Farm to Jared W. Darling-ton on his 40th birthday for one dollar ($1.00).
/s/ Martha Darlington

The desk was located in a home on the Farm occupied solely by Martha, and the document was discovered by the following members of the Darlington family: Martha’s brother, Jesse, and his wife; Jesse’s son, Jared, the grantee, and his wife; and Jesse’s other son, Jesse M., and his wife. It had never been physically transferred to Jared.

Martha’s estate was distributable on the date of her death as follows:

One-third to Jesse Darlington, her brother;
One-third to three nieces and five grandnieces, issue of a
sibling; and
One-third to two nieces, Carrie Smith and Vicki Bowman,
issue of a sibling.

Jesse Darlington died testate on July 12, 1979. His surviving beneficiaries are his three children, Jesse M. and Jared Darlington and Barbara Garrett.

Letters of administration on Martha’s estate were issued to Jesse M. Letters testamentary on Jesse’s estate were issued to Jared. Second and final accounts were filed simultaneously in the estates. Barbara Garrett, Carrie Smith and Vicki Bowman filed objections to the accounts on the grounds, inter alia, that Martha’s one-fourth interest in the Darlington Farm had been incorrectly omitted from the account filed in her estate and that Jesse’s intestate share of that one-fourth interest had been incorrectly omitted from the account filed in his estate. Objectors contended that the document allegedly conveying her interest was not a deed and, further, that it had not been delivered.

Following a hearing held on June 17, 1985, the Honorable Francis J. Catania, auditing judge, issued adjudications dated May 28, 1986. He held that the document was a deed, but that it had not been delivered to Jared, and title, therefore, had not passed to him. In Martha’s estate, he ruled that her interest in the farm was part of her estate. In Jesse’s estate, he directed that the account be amended to include Jesse’s intestate share of the Darlington Farm. Jesse M. and Jared filed exceptions to both adjudications, which were denied by order dated September 23, 1986. Jared filed timely appeals, consolidated by stipulation, in both estates.

Appellant seeks reversal of the auditing judge’s determination that the deed had not been delivered. Initially, we discuss our standard of review on this issue. Whether there has been delivery of a deed is a factual question to be determined by the chancellor. Mower v. Mower, 367 Pa. 325, 80 A.2d 856 (1951); Abraham v. Mihalich, 330 Pa.Super. 378, 479 A.2d 601 (1984). If his finding is supported by competent evidence, it is binding on this court. Abraham v. Mihalich, supra; see also District Council 33 v. City of Philadelphia, 354 Pa.Super. 176, 511 A.2d 818 (1986). Further, we accept his resolution of conflicts in testimony as well as his assessment of the credibility of witnesses. In re Kerwin’s Estate, 371 Pa. 147, 89 A.2d 332 (1952); Abraham v. Mihalich, supra.

A deed is not effective unless it has been delivered. Fiore v. Fiore, 405 Pa. 303, 174 A.2d 858 (1961); Herr v. Bard, 355 Pa. 578, 50 A.2d 280 (1947).

In order to effectuate an inter vivos gift there must be evidence of an intention to make a gift and a delivery, actual or constructive, of a nature sufficient not only to divest the donor of all dominion over the property but also invest the donee with complete control over the subject-matter of the gift.

In re Kerwin’s Estate, supra, 371 Pa. at 159-60, 89 A.2d at 338 (emphasis in original); see also Chadrow v. Kellman, 378 Pa. 237, 106 A.2d 594 (1954); Herr v. Bard, supra; cf. In re Estate of Secary, 407 Pa. 162, 180 A.2d 572 (1962).

When a deed is found among a decedent’s private papers, the burden of proving delivery falls on the putative grantee. Leahey v. Leahey, 309 Pa. 347, 163 A. 677 (1932). Appellant has clearly failed to meet this burden of proof.

Testimony at the June 17, 1985 hearing established that Martha continued to live in her home by herself until her death. She paid her share, or more, of the property taxes. She continued to refer to the property as hers until her death. Cf. Kanawell v. Miller, 262 Pa. 9, 104 A. 861 (1918). Jared lived in Indiana from 1970 until 1979 and paid no taxes or maintenance expenses on the property. Jared himself admitted that he did not exercise unrestricted access to the home consistent with an ownership interest, N.T., 6/17/85, at 98.

Appellant’s position is that Martha constructively delivered the deed to him when she told him and his wife as well as Jesse M. and his wife of the existence and location of the deed. The auditing judge, however, was free to believe or disbelieve the testimony of these four witnesses establishing those verbal communications. Further, we conclude that the communications alone would not have sufficiently divested the decedent of dominion and control over the deed to be considered a delivery of it. In fact, we find no valid factual distinction between this case and that of Leahey v. Leahey, supra, where the supreme court held that the subject deed had not been delivered.

Appellant’s reliance upon the cases of Loutzenhiser v. Doddo, 436 Pa. 512, 260 A.2d 745 (1970), and Stiegelmann v. Ackman, 351 Pa. 592, 41 A.2d 679 (1945), is misplaced as both involved deeds that had been recorded, which raised a presumption of delivery. His reliance upon the cases of Abraham v. Mihalich, 330 Pa.Super. 378, 479 A.2d 601 (1984), City Stones Co. v. City of Philadelphia 376 Pa. 482, 103 A.2d 664 (1954), and Mower v. Mower, supra, is similarly misplaced; all involved physical delivery of deeds to third parties, where an entirely different factual issue was involved.

As the auditing judge’s determination that the deed was not delivered is supported by competent evidence, we affirm.

Orders affirmed.

      . No cross appeal was filed challenging the determination that the document is a deed.


author: HESTER, Judge: FRANKS, Judge:

text:
    527 A.2d 161
    COMMONWEALTH of Pennsylvania v. Gary Lynn BROZIK, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 9, 1987.
    Decided May 29, 1987.

      Anthony Dedola, Uniontown, for appellant.
    Andrea F. McKenna Deputy Attorney General, Harrisburg, for Com.
    Before CIRILLO, President Judge, and CAVANAUGH and HESTER, JJ.
   HESTER, Judge:

This appeal from judgment of sentence follows Gary Lynn Brozik’s convictions by jury of homicide by vehicle, homicide by vehicle while driving under the influence, failure to report accident to police, reckless driving, failure to drive vehicle at safe speed and driving without a license. Following the denial of post-verdict motions, the court sentenced appellant to three and one-half to seven years imprisonment for homicide by vehicle while under the influence, and imposed no additional penalty for the other convictions. This appeal followed.

The facts of the case are as follows. On August 10,1985, at approximately 8:20 P.M., twelve year old Christian Joseph was riding his bicycle on Oliver Street in Uniontown. As he turned left into an alley, appellant's automobile struck him and sent him flying. Appellant never stopped his vehicle. Four days later, Christian Joseph died as a result of traumatic head injury.

Uniontown Police Sergeant Earl Wright and Pennsylvania State Police Trooper Howard Judy sought appellant at his residence in Lemonwood Acres Housing Project. Earlier that day, both policemen had unsuccessfully pursued appellant for reckless driving and speeding. In one incident, appellant sped away from a traffic light upon the approach of Trooper Judy, and eluded Judy in the ensuing chase. In the other incident, police officer Wright pursued appellant for speeding, but subsequently abandoned the chase.

A third officer, Pennsylvania State Police Trooper Robert Allan, had also pursued appellant about three hours before the fatal accident. Trooper Allan had pulled his vehicle across appellant’s path, but appellant’s automobile jumped the sidewalk, scattering a group of pedestrians, and struck the front of the patrol car before speeding away. Trooper Allan recognized appellant as Gary Brozik.

Fifteen minutes after the Brozik vehicle struck Christian Joseph, Trooper Judy did indeed find appellant in Lemon-wood Acres with the aid of a group of neighbors standing outside. Appellant was knocking at the front door of his house, his clothing was disheveled, his trousers were urine-soaked, his speech was slurred, and his eyes were glassy and bloodshot. Judy placed appellant under arrest.

Appellant asserts that the trial court erred in permitting the introduction into evidence of the blood alcohol examination. The following facts are pertinent to this issue. Following appellant’s arrest at approximately 8:35 P.M., Trooper Judy transported appellant to the Uniontown barracks of the Pennsylvania State Police. In keeping with departmental policy, appellant was not permitted to ingest anything. The police attempted to administer an intoxilyzer test to appellant, but when the machine malfunctioned, they took appellant to Uniontown Hospital for a blood test at approximately 10:00 P.M. A blood sample was drawn which indicated a blood alcohol content of .15%.

At the supplemental suppression hearing on December 18, 1985, the parties stipulated as follows:

[T]hat on August 10, 1985, at approximately 10:30 p.m., blood was drawn from the defendant, Mr. Brozik, at the Uniontown Hospital by medical personnel there. That blood was immediately turned over to Trooper Robert Allan, who then refrigerated the blood and kept it refrigerated until August 12, a Monday, at approximately 4:30 p.m. — or no later than 4:30 p.m. on Monday, that blood was transported to the lab at Greensburg.

Notes of Testimony (N.T.), 12/18/85, at 3. The parties further stipulated that the Greensburg laboratory had been closed on Sunday, August 11, 1985. Id. at 4.

Appellant argued in post-verdict motions, and argues here, that a blood alcohol test, as opposed to a breathalyzer test, is appropriate only when a defendant is transported to a hospital for the treatment of injuries. Since appellant did not sustain injuries, he asserts that upon the malfunction of the intoxilyzer at the Uniontown barracks, it was incumbent upon police to transport him to another state police barracks for the administration of a breathalyzer test, not to the hospital for a blood test. Second, appellant claims that since the blood sample was not transported to a laboratory within twenty-four hours, the test results were not admissible into evidence.

Appellant’s arguments are premised upon 75 Pa.C.S. § 3755(a).

§ 3755. Reports by emergency room personnel

(a) General rule. — If, as a result of a motor vehicle accident, the person who drove, operated or was in actual physical control of the movement of any involved motor vehicle requires medical treatment in an emergency room of a hospital and if probable cause exists to believe a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) was involved, the emergency room physician or his designee shall promptly take blood samples from those persons and transmit them within 24 hours for testing to the Department of Health or a clinical laboratory licensed and approved by the Department of Health and specifically designated for this purpose. This section shall be applicable to all injured occupants who were capable of motor vehicle operation if the operator or person in actual physical control of the movement of the motor vehicle cannot be determined. Test results shall be released upon request of the person tested, his attorney, his physician or governmental officials or agencies.

Thus, appellant contends, blood tests are authorized by the legislature only when a defendant is injured and requires treatment at a hospital.

The trial court determined that the conduct of police in obtaining a blood sample is governed by 75 Pa.C.S. § 1547(a), which states:

§ 1547. Chemical testing to determine amount of alcohol or controlled substance

(a) General rule. — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both; or
(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

We agree with the trial court that there is nothing in section 1547 to indicate the legislature intended to establish a preference among the means of testing. Nor is there any reference in either section 1547 or 3755(a) that blood testing may be used only if a driver suspected of intoxication requires emergency room treatment.

While it is true that section 1547(g) of the former Motor Vehicle Code, captioned “Blood test in lieu of breath test,” supports the contention that a breath test was to be preferred to other testing, there is no such provision in the present Motor Vehicle Code, amended December 12, 1982.

We hold, based upon our reading of 75 Pa.C.S. § 1547, that police have the option of conducting whichever test is most expedient under the circumstances. See McClintock v. Pa. Department of Transportation, 36 Pa.D. & C.3d 38 (1984).

Appellant’s alternative attack upon the admissibility of the blood alcohol test alleges that the police failed to transmit the blood sample to the Department of Health or an approved clinical laboratory within twenty-four hours, as required by 75 Pa.C.S. § 3755.

The trial court determined that the failure to abide by the twenty-four hour requirement of section 3755 goes only to the weight of the evidence, not its admissibility. The court relied upon Commonwealth v. McGinnis, 336 Pa.Super. 601, 486 A.2d 428 (1985), wherein a panel of this court held that a test resulting from the use of a breathalyzer device that had been modified prior to use and was not approved by the Department of Health, was still admissible in evidence, in light of the Commonwealth’s evidence that the test was sufficiently reliable to permit the results to have probative value. Two weeks before the trial court filed its opinion denying post-trial motions in the present case, however, the Pennsylvania Supreme Court reversed the McGin-nis decision. Commonwealth v. McGinnis, 511 Pa. 520, 515 A.2d 847 (1986). The supreme court determined that the use of a breathalyzer unit which had been modified and was not approved by the Department of Health was contrary to the requirement of 75 Pa.C.S. § 1547(c)(1) that chemical tests of breath “be performed on devices approved by the Department of Health____” The McGinnis court further held that the results were inadmissible as evidence of appellant’s intoxication and should have been suppressed. The court also determined that the error was not harmless, as the remaining testimonial evidence of the appellant’s intoxication was not sufficient to support a finding that he was driving under the influence of alcohol.

The supreme court’s decision in McGinnis does not require suppression of the blood test results in the present case. The use of an unapproved breathalyzer unit is in violation of 75 Pa.C.S. § 1547(c), which is titled, “Test results admissible in evidence.” Subsection (1) governs chemical tests of breath; subsection (c)(2), governing chemical tests of blood and urine, provides that the tests be “performed by a clinical laboratory licensed and approved by the Department of Health ... using procedures and equipment prescribed by the Department of Health.” Appellant does not allege noncompliance with any aspect of this statute governing the admissibility into evidence of chemical tests to determine alcohol content. Rather, he alleges noncompliance with 75 Pa.C.S. § 3755, which is directed not to police, but to emergency room personnel. We believe this fact distinguishes this case from the holding of McGinnis.

Instead, Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980), is applicable. In that case a blood sample was drawn at 2:42 A.M. on January 1, 1977, and tested at an approved laboratory two days later, on January 3, 1977. A police officer testified that the sample was refrigerated the entire time from when it was drawn until it was tested. The defendant in Arizini did not display the usual symptoms of an intoxicated person. Since the test results indicated that his blood contained .275% alcohol by weight, an argument was made that the test results were inaccurate. More specifically, Mr. Arizini claimed that the alcohol content of samples could have changed between the time the blood was drawn and the time it was tested. The court in Arizini determined that the jury could have found, inter alia, that the alcohol content of the samples did not change significantly between the time the blood was drawn and the time it was tested. We conclude that the provisions of 75 Pa.C.S. § 3755 are directed to the conduct of emergency room personnel, and do not govern the admissibility of the results in evidence.

However, even if the admission of the blood tests was error, the error was harmless, as the remaining testimonial evidence of appellant’s intoxication is sufficient to support a finding that Gary Brozik was driving under the influence of alcohol. Commonwealth v. McGinnis, supra, 511 Pa. 520, 515 A.2d 847 (1986). First, appellant testified that at 7:00 P.M. on the day of the accident, he had been drinking twelve ounce cans of beer for quite some time. N.T., 2/5/86, at 19-20. In addition, three experienced members of the state police and Uniontown police department testified that following his arrest, appellant’s pants were wet and smelled of urine, he had the odor of alcohol on his breath, his eyes were glassy and bloodshot, and his speech was slurred. N.T., 2/4/86, at 23, 39; 2/5/86, at 97. Each officer opined that appellant was under the influence of alcohol. N.T., 2/4/86, at 25, 40; 2/5/86, at 97. It is clear that the testimonial evidence alone was sufficient to support the finding that appellant was driving under the influence of alcohol.

We have studied the parties’ briefs and completely reviewed the entire record. We conclude that the able and thorough opinion of the Honorable William J. Franks properly addressed the remaining contentions of appellant.

Judgment of sentence affirmed.

APPENDIX

In The Court of Common Pleas of Fayette County, Pennsylvania

Criminal Division

No. 525 of 1985

OPINION AND ORDER

October 7, 1986

FRANKS, Judge:

The instant case is before us on defendant’s Motion For A New Trial and In Arrest of Judgment. Defendant was charged with, and found guilty of, homicide by vehicle, homicide by vehicle while under the influence, notice of accident to the police department, no operator’s license, safe speed, reckless driving, driving under the influence and accident involving death or injury. For the reasons stated below, we deny defendant’s motion in its entirety.

STATEMENT OF FACTS

The charges herein arose from the collision of a motor vehicle operated by defendant and the bicycle operated by the victim. The victim died several days later from the injuries received. The incident occurred at 8:20 p.m. on August 10, 1985. There were three eyewitnesses to the accident: the victim, who never regained consciousness, defendant, and his passenger-brother.

Defendant asserted at trial that he was traveling at ten to fifteen miles per hour in an alley of a residential neighborhood. While approaching an intersection at this speed, the victim made a sharp turn on his bicycle around a shed situated on the corner and ran into defendant. Defendant proceeded through the intersection. He then asserted that he stopped and began to leave his car. He decided to drive on when his brother indicated that the victim was not injured.

The Commonwealth’s evidence consisted of the testimony of neighbors who saw a vehicle similar to the one operated by defendant traveling down the alley at a high rate of speed seconds before the crash. They further testified as to the position of the victim after the crash, and that defendant had not stopped to render assistance.

To supplement the testimony of the neighbors, the Commonwealth submitted the testimony of three Pennsylvania State Police Officers who had engaged in automobile chases with defendant at 4:00 p.m., 5:00 p.m., and 7:00 p.m. on the day of the instant collision. The officers identified defendant as the driver of the vehicle, testified that they viewed defendant drinking an alcoholic beverage, and further testified that he was driving in a reckless and unsafe manner.

Testimony was also given concerning defendant’s arrest, and the administration of blood-alcohol level tests.

In addition to the officers, several physicians were called to testify. Two of the doctors testified to the injuries sustained by the victim and to his cause of death. Of those two doctors, one also testified to observing defendant at the hospital that evening and gave an opinion on defendant’s state of intoxication at the time.

Dr. Charles Winek, a forensic pathologist and toxicologist, testified to the relationship between the consumption of alcohol and the ability to operate a vehicle. He further answered hypothetical questions on possible levels of blood-alcohol in a person under a given set of facts.

Testimony of several other technical people were introduced, who discussed the comparability of the car and bicycle paint, and the administration and testing of the blood sample taken from defendant.

During the second day of the trial, the Court was made aware of one of the juror’s familiarity with defendant’s sister. After questioning by the Court, the juror was excused and the first alternate was instructed to replace her. The case proceeded and the matter submitted to the jury. It returned verdicts of guilty on all counts.

Defendant now files his Motion For New Trial and In Arrest of Judgment. Because of the length of the motion, we shall deal with the assignments of error seriatim.

1. Evidence of police chases earlier on the day of the offense

Defendant concedes that the contact between defendant and the Pennsylvania State Police on the day of the offense is relevant to the case. However, defendant contends that the nature of the evidence was so prejudicial that its probative value was outweighed. We disagree.

Evidence of prior convictions or criminal acts is inadmissible except in certain circumstances including:

(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing the commission of two or more crimes which are so related to each other that proof of one tends to prove the others or (5) to establish the identity of the person charged with the commission of the crime on trial under circumstances where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the crime. Commonwealth v. Slyman, 334 Pa.Super. 415, 438, 483 A.2d 519 (1984).

Defendant is correct in his argument that even where evidence falls into one of the above classes its probative value must still outweigh its prejudicial effect. Thus, the admitting court must engage in a balancing test in which there are a number of considerations:

... the one side the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other the degree to which the jury will probably be raised by the evidence to overmastering hostility. Commonwealth v. Shirey, 333 Pa.Super. 85, 147, 481 A.2d 1314 (1984).

In the instant case the testimony of the officers was necessary to establish the identity of defendant. The witnesses to the collision could not identify defendant as the driver of the vehicle. Since the automobile did not belong the defendant, he could not be identified through a description of the vehicle. It was through the evidence presented by the state police that defendant was placed in the driver’s seat of the car involved. Thus, the testimony was an integral and necessary portion of the Commonwealth’s case.

It may be argued that defendant’s statements admitting he was the driver were an equal source of identification evidence. We note that those statements had been, and still are, under attack by defendant. We do not believe that the Commonwealth must be compelled to rely on such evidence where there is direct and substantial identification evidence available.

Nor do we find that the officers’ testimony was unduly prejudicial to defendant. The nature of the actions described by the officers was not of a character or quality to “raise overmastering hostility” toward defendant. Thus, the officers’ testimony was properly admitted.

2. Cross-examination of defendant outside the scope of direct

Defendant argues that the court impermissibly permitted defendant to be cross-examined outside the scope of his direct testimony. We disagree.

Defendant testified to his actions from approximately 7:00 p.m. on the evening of the incident. Defendant indicated that he was “scared” of meeting the State Police. The Commonwealth then cross-examined on the reasons underlying defendant’s fright. At that point, defendant discussed the earlier chases.

The scope of cross-examination extends beyond the subject testified to on direct examination and includes the right to examine any facts tending to refute “inferences and deductions” arising from matters testified to on direct. Commonwealth v. Shirey, supra, 333 Pa.Superior Ct. at 151, 481 A.2d at 1314.

Here defendant opened the floodgates through his testimony concerning his fear of the state police. It was only reasonable to request an explanation of why such a fear existed. Once defendant offered such a statement, the Commonwealth need not sit idly by and ignore it. Commonwealth v. Trignani, 334 Pa.Super. 526, 483 A.2d 862 (1984).

3. Defendant’s inculpatory statements

Defendant made certain statements to the police while in custody. He now contends that such statements are inadmissible due to his inability to waive his rights and because counsel was not present. Defendant argues that he could not have waived his Miranda rights at the hospital where his first statement was made. His assertion is drawn from an allegation made by defendant that the officers denied him medication which aided his ability to comprehend. Defendant argues without this medication he could not have intelligently waived his rights.

We dismiss this argument summarily because defendant later asserts in this motion that the results of the blood-alcohol level tests were unsubstantiated because he had taken his medication. Defendant cannot have it both ways. Based on his own inconsistent arguments, we must reject his argument.

Defendant also questions the admissibility of a statement made to State Police Trooper Robert Allan while incarcerated after the incident. The Honorable Conrad B. Capuzzi ruled in an omnibus pre-trial motion that defendant had been given his Miranda rights prior to Trooper Allan’s questioning and that after answering several questions, defendant requested an attorney. All questioning ceased. We find no reason to suggest that Judge Capuzzi erred in deciding that this statement was admissible.

We further note that defendant testified to substantially the same matters at trial. Thus, we cannot find that any prejudice arose from the admissions made to Trooper Allan.

h. Hypothetical question to Dr. Winek

The Commonwealth posed a hypothetical question to Dr. Winek, the toxicologist, to attempt to establish the blood-alcohol level of a person similar to defendant on the date of the offense. Defendant objects to the question in that the Commonwealth did not know when defendant consumed his last drink. We do not believe the lack of knowledge of this fact is fatal to the Commonwealth’s question.

The officer, who had custody of defendant from 8:35 p.m. until the blood-alcohol test, testified that defendant had nothing to drink or eat during this period. Dr. Winek could properly state his opinion of defendant’s blood-alcohol level given those facts. The court in Commonwealth v. Robert, 496 Pa. 428, 437 A.2d 948 (1981) addressed the question raised by defendant.

Defendant concedes that all the facts stated in question were of record but complains that the question omitted certain other facts which allegedly could have influenced [the doctor’s] opinion. It is settled, however, that if opposing counsel believes that relevant facts have been omitted, he is of course free on cross-examination to pose his own hypothetical questions which includes those facts. Id., 496 Pa. at 434, 437 A.2d 948.

Thus, defendant was free to cross-examine Dr. Winek on other factors which may have altered his conclusion.

5. Inflammatory remarks of Dr. Doyle Tarwater

Commonwealth witness Dr. Doyle Tarwater was the emergency room physician who examined the victim. He also expressed an opinion on defendant’s intoxication after viewing defendant, who was awaiting his blood test.

Dr. Tarwater related comments defendant had made at the time to the State Police and the emergency room nurses. Dr. Tarwater did not quote defendant but rather stated the comments were “obscene” and had “sexual connotations”. Defendant objected and was sustained. The court immediately instructed the jury:

Members of the jury, the part of the doctor’s answer where he referred to as making remarks to nurses having sexual connotation, that will be stricken and you will not consider that part of the answer. It is an improper answer and you will disregard that part of the answer entirely. (N.T. 2/4/86 at 91)

The court further instructed the doctor to limit his testimony to the question asked. We believe the above instructions to the jury and the doctor cured any harm which the doctor’s statements may have caused. Further, not every improvident remark made by a witness will result in a mistrial. Commonwealth v. Grant, 479 Pa. 74, 387 A.2d 841 (1978). Thus, we find no basis for a mistrial in Dr. Tarwater’s testimony.

6. Excusal of the juror

During the second day of trial, a member of the jury panel approached the court and disclosed that she knew defendant’s sister. She further stated that she had had an argument with the sister concerning matters involving their children. The juror disavowed any knowledge of defendant personally. She further stated that the voir dire questions had not been fully understood.

Both defendant and the Commonwealth agreed to the replacement of this juror by the first alternate. (N.T. 2/4/86 at 48). Since no objections were stated at that time, the issue is now waived.

7. Introduction of defendant’s blood-alcohol level test results

Defendant argues that the blood-alcohol level (hereinafter BAL) test results should not have been admitted at trial. The challenge to the BAL test encompass a number of areas.

The testimony reveals that the intoxilyzer upon which defendant was first tested was not properly functioning. Defendant was then transported to the hospital for the taking of a blood sample. Defendant contends that under 75 Pa.C.S.A. § 3755(a) the officers were required to transport him to another station where an intoxilyzer was in proper working order. He asserts the blood test is prohibited by Section 3755(a).

We agree with the Commonwealth that defendant’s reliance on Section 3755(a) is misplaced. That section is clearly directed not at the police but at the emergency room personnel. Under 75 Pa.C.S.A. § 1547 blood, breath, and urine tests to discover BAL’s are authorized. While breath tests are the most favored method by the courts, because they are the least intrusive, where circumstances dictate, blood tests are equally acceptable. Commonwealth v. Funk, 254 Pa.Super. 233, 385 A.2d 995 (1978).

Section 1547 has gone through a number of revisions. Subsection (g) in the 1976 version of the act authorized blood tests where defendant was unable to supply enough air for the intoxilyzer. This section has now been eliminated from the 1982 statute. We find it was the intent of the legislature not to prioritize the method of testing BAL’s.

In the context of this case we find the officer’s actions to be reasonable. They had made a good faith effort to test defendant with the breathalyzer and, that failing, took him to a nearby hospital for the test.

Defendant also asserts that the Commonwealth violated the act by failing to transmit the blood samples within twenty-four hours to a facility for testing. (The closest testing facility was closed for the weekend.) We disagree.

We must note that defendant has again relied upon Section 3755 in his argument. We find the applicability of that section dubious. In Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980) similar retention of the samples was involved. While some testimony in Arizini indicated that improper storage would result in the BAL being changed somewhat, the court concluded that the jury could have believed that the change in alcohol level was insignificant.

It has recently been held that failure to abide by the act goes only to the weight and not to admissibility of the evidence:

Moreover, the fact that the requirements of the statute (75 Pa.C.S.A. § 1547) were not met did not automatically render the test results inadmissible. In the usual setting it would mean only that the Commonwealth would be required to establish an alternate foundation by showing that the test actually administered was sufficiently reliable to permit the results to have probative value. Commonwealth v. McGinnis, 336 Pa.Super. 601, 608, 486 A.2d 428 (1985).

Here the officer testified to the packaging and storage of the sample. Further testimony indicated that the alcohol level would not have been seriously affected. Therefore, we find the delay in bringing the blood sample to the laboratory was a matter for the jury to decide upon.

8. Testimony as to speed

Defendant argues that the court improperly permitted two Commonwealth witnesses to testify to the speed of defendant’s vehicle in the alley. He asserts that the witnesses’ characterization of his speed as “fast” is improper under the opinion evidence rule and highly prejudiced defendant.

The initial statement by the witness was the subject of objection by defendant. The objection was sustained and the jury instructed to disregard the remark. These instructions cured any harm which the initial statement may have had.

The subsequent statements did not elicit any objection from defendant. Therefore, any allegations of prejudices at this stage of the proceedings have been waived.

9. Breathalyzer test reading of .09

Defendant contends that he had knowledge that the results of a breathalyzer reading was .09. He asserts that the Commonwealth erred in not producing this evidence.

We perceive two difficulties with defendant’s position. Initially, we note that the uncontroverted testimony of the State Police officers was that the intoxilyzer was malfunctioning. We fail to see how a reading from this defective machine could have been competent evidence.

More damaging is defendant’s failure to inquire, while cross-examining the officers, about the results at trial. From his assertion it appears that defendant knew of the results at that time. A defendant cannot withhold evidence until after a verdict has been rendered and then attempt to impeach it if it is unfavorable.

10. Conflict of interest within the Public Defender’s Office

Prior to trial defendant became aware that a member of the Public Defender’s Office, other than trial counsel, may have witnessed an automobile, similar to that which defendant drove, being operated in a reckless manner on the day of the accident.

Defendant now contends that the alleged viewing created a conflict of interest in the Public Defender’s Office. As such, defendant believes that trial counsel should have withdrawn.

Defendant however raised no allegations of prejudice, nor at any time prior, or during, trial did he request a change of counsel. Further, defendant does not suggest that he requested counsel withdraw prior to trial. Defendant has therefore not presented a claim which is actionable.

11. Ineffective assistance of counsel

Defendant alleges that counsel was ineffective in three areas. After review of the record, we find no basis to so hold. In reviewing a claim of ineffectiveness:

inquiry ceases and counsel’s stewardship is deemed effective once we are able to conclude that the particular course chosen by counsel has some reasonable basis designed to effectuate his client’s interest. Commonwealth v. Slyman, supra, 334 Pa.Super. at 434-435, 483 A.2d 519.

Initially defendant argues that counsel was ineffective for failing to challenge the BAL test because he had taken medication prior to the administration of the test. As noted earlier, defendant has inconsistently argued he had and did not have his medication. We believe any reasonable counsel would attempt to prevent his client from testifying in such an inconsistent manner. “The reasonableness of counsel’s action may be determined or substantially influenced by the defendant’s own statements or actions.” Commonwealth v. Litzenburger, 333 Pa.Super. 471, 480, 482 A.2d 968 (1984).

Defendant next asserts that counsel was ineffective for failing to order psychological and medical testing of defendant. Again we disagree. Contrary to defendant’s argument that his “state of mind” was an essential element of the case, we find that such evidence would have been irrelevant to the case. The types of charges facing defendant did not require an element of intent. Only defendant’s level of intoxication was in question. Further medical testing would not have shown that defendant was incapable of driving the vehicle — a fact admitted by defendant at trial. “In any ineffectiveness case a particular decision not to investigate must be directly assessed for reasonableness in all circumstances, applying a heavy measure of deference to counsel’s judgment.” Id. We fail to see that trial counsel’s actions were unreasonable given the charges against defendant and his admissions.

Finally, defendant argues that counsel failed to present all evidence in his favor. To support this contention defendant points to the failure of counsel to call defendant’s brother, Scott Brozik, as a witness. Scott had been a passenger in the car during the day’s events. He had given the police a statement implicating defendant in the death and placing defendant in the driver’s seat. Scott also stated other facts which were inconsistent with defendant’s testimony. Counsel need not place a witness on the witness stand whose testimony would either impeach or be damaging to his client.

A finding that appellant is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized resulting in prejudice to the defendant. Commonwealth v. Evans, 343 Pa.Super. 118, 132, 494 A.2d 383 (1985).

We can find with certainty that the addition of the testimony of Scott, defendant’s brother, who had made incriminating statements, would not have substantially altered defendant’s chances for success.

Defendant also argues that trial counsel erred by not taking photographs of the scene. Counsel instead utilized the numerous photographs submitted by the Commonwealth which depicted the scene. No allegation has been made that these photographs did not adequately depict the intersection and alley. We are unconvinced that further photographic evidence would have benefitted defendant in any manner.

Other matters raised in defendant’s motion have not been briefed and are considered waived.

ORDER

AND NOW, this 7th day of October, 1986, it is ORDERED, ADJUDGED, and DIRECTED that defendant’s Motion for a New Trial an In Arrest of Judgment is hereby denied. Defendant will present himself for sentencing on October 29,1986, at 1:15 o’clock P.M. in Courtroom No. 2 of the Fayette County Courthouse.

      . As section 3755(a) did not exist at the time the tests were performed on Mr. Arizini’s blood, the specific issue alleged in the present case could not have been made.

      . We note our disapproval of appellant’s deviation from Pa.R.A.P. 2118. We expect compliance with the rule’s requirement that the summary of argument "should never exceed two pages.” (Emphasis added.)

      . The remaining questions presented by appellant for our review are: whether the trial court erred in 1) permitting the Commonwealth to introduce prior incidents of reckless driving on the day of the accident; 2) allowing the Commonwealth to cross examine appellant outside the scope of his direct testimony; 3) permitting the introduction of appellant’s statements; 4) allowing a toxicologist to answer a hypothetical question; 5) failing to grant a mistrial based upon Dr. Tarwater’s remarks; 6) failing to grant a mistrial based upon a juror’s revelation that she knew appellant’s sister; 7) allowing two Commonwealth witnesses to testify to the speed of appellant’s vehicle; 8) whether the Commonwealth withheld exculpatory evidence; 9) whether the office of the public defender was incompetent to represent appellant; and whether trial counsel was ineffective in failing to 10) challenge the blood alcohol test based upon appellant’s ingestion of his medication prior to the test; 11) have appellant psychologically and/or medically evaluated; and 12) present all evidence in appellant’s favor.


text:
    527 A.2d 171
    Sheila A. BERGERE, Appellant, v. Allen BERGERE.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1987.
    Filed June 12, 1987.

      Thomas J. Carlyon, Hazleton, for appellant.
    Stephen J. Fendler, Wilkes-Barre, for appellee.

      Before BECK, HESTER and ROBERTS, JJ.

       This decision was rendered prior to the death of Justice Roberts.

   BECK, Judge:

In this divorce action the issue is whether the actions of appellee, a non-resident husband, constituted consent to the trial court’s personal jurisdiction over him or whether he waived his right to contest the validity of the court’s personal jurisdiction.

The trial court dismissed wife-appellant’s petition for economic relief under the Divorce Code on the ground that it lacked jurisdiction inasmuch as the husband neither consented to personal jurisdiction nor waived his right to contest jurisdiction. We point out that the question before us is limited to an economic claim arising from the marriage and does not relate to the marital status of the parties. E.g. Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957), Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed.2d 1577 (1945).

An order determining that the court lacks personal jurisdiction is a final order because the parties are out of court; such an order is therefore appealable. Radakovich v. Weisman, 241 Pa.Super. 35, 359 A.2d 426 (1976); see Vision Service Plan of Pa. v. Pennsylvania AFSCME Health and Welfare Fund, 326 Pa.Super. 474, 480 n. 5, 474 A.2d 339, 342 n. 5 (1984). This conclusion is clear from case law and also from the official note to Pa.R.App.P. 311(b). Referring to an appeal as of right from an interlocutory order sustaining personal jurisdiction, the note to rule 311(b) indicates that the rule “does not cover orders which do not sustain jurisdiction because they are, of course, final orders appealable under Rule 341.” We recognize that the comment is not controlling. However, it does comport with logic and case law. Therefore, the order in the case sub judice which finds the court lacked personal jurisdiction is appealable pursuant to Pa.R.App.P. 341.

If the basis of the appeal were the court’s denial of economic relief in the form of alimony pendente lite, we would find the order interlocutory and quash. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). However, the basis of the court’s order is jurisdictional and therefore final.

For the sake of clarity, we first note that the wife’s claim of jurisdictional legitimacy is not based on an assertion that husband was personally served or on an assertion that the long arm statute is applicable. Uniform Interstate and International Procedure Act, 42 Pa.Cons.Stat.Ann. §§ 5322-5329 (Purdon 1981). Rather wife asserts two other bases for the court’s personal jurisdiction over her husband. First she contends husband waived the defense that the court lacked personal jurisdiction by failing to raise the defense both in preliminary objections to the divorce complaint and in a timely petition pursuant to the local rules of Luzerne County. C.P.R. 1910.8(b). Second, wife contends that husband consented to the court’s personal jurisdiction by filing exceptions to the master’s proposed orders for alimony pendente lite.

Before considering these two issues, we review the facts, which are uncontested. Husband and wife were married and resided in Maryland. Upon separation, wife moved to Pennsylvania where her parents live. She established her domicile in Pennsylvania and filed a complaint for divorce and for economic relief including an award of alimony pendente lite. Husband was served constructively by registered mail. Pa.R.C.P. 2079(a) (rescinded June 20, 1985, effective Jan. 1, 1986). He did not respond.

On January 21, 1986, the wife, following local procedure, filed a copy of her request for alimony pendente lite with the Luzerne County section of domestic relations. The domestic relations section scheduled a conference date and notified the husband, who wrote that he would not appear because the court lacked personal jurisdiction over him. The conference was held without the husband, and a domestic relations counselor issued a proposed order awarding wife alimony pendente lite. The husband filed timely exceptions, addressing solely the issue of personal jurisdiction. The counselor amended the proposed order to correct a calculation error, and the husband filed timely exceptions to the amended order. He again limited his challenge to the question of jurisdiction. The parties submitted briefs to the domestic relations master who recommended that the court permit husband to raise the issue of personal jurisdiction by filing a petition nunc pro tunc. The court ordered husband to filed a petition nunc pro tunc pursuant to Luzerne County C.P.R. 1910.8(b), a local rule applicable to alimony pendente lite matters, which requires a party raising a jurisdictional issue to do so by petition prior to the scheduled hearing. See also Luzerne County C.P.R. 1920.-31(b)(2)(l)(2). After the husband filed a petition in compliance with the court’s order, the court heard legal argument and dismissed the alimony pendente lite “complaint” because the court asserted it did not have personal jurisdiction over the husband.

We now consider wife’s contention that husband waived his right to assert the defense of lack of personal jurisdiction. Pa.R.C.P. 1032 provides that all defenses and objections which the defendant does not raise either in preliminary objection, answer or reply are waived, except for enumerated exceptions not herein relevant. As with any civil complaint, the defendant in a divorce action may file preliminary objections as a responsive pleading, pursuant to rule 1017. N. Perlberger, Pennsylvania Divorce Code

§ 7.5.3. (1980); e.g. Urban v. Urban, 332 Pa.Super. 373, 481 A.2d 662 (1984). Moreover,

[p]reliminary objections are the exclusive means by which to raise the question of in personam jurisdiction and the failure to so raise the question of personal jurisdiction constitutes a waiver of that defense. Pa.R.C.P. 1032. See also Monaco v. Montgomery Cab Co., 417 Pa. 135, 208 A.2d 252 (1965); Commonwealth ex rel. Cook v. Cook, 303 Pa.Super. 61, 449 A.2d 577 (1982).

Roskwitalski v. Reiss, 338 Pa.Super. 85, 94, 487 A.2d 864, 868 (1985).

By permitting the husband to file a petition nunc pro tunc in accordance with local rule, the trial court clearly intended to permit husband to raise the jurisdictional issue late. The Luzerne County rule substitutes the petition for the preliminary objections required by the Pennsylvania Rules of Civil Procedure. We do not address the validity of the Luzerne County rule because neither party has addressed or argued this issue.

Our Pennsylvania Supreme Court has held that

... a lower court will not be reversed either for waiving or refusing to waive non-compliance with procedural rules in the absence of a showing of an abuse of discretion which has caused manifest and palpable injury to the complaining party____ This practice comports with Pa.R. C.P. 126 which mandates a liberal construction of the rules in general and the disregarding of any “error or defect of procedure which does not affect the substantive rights of the parties.”

Gagliardi v. Lynn, 446 Pa. 144, 151, 285 A.2d 109, 112 (1971) (citations omitted).

Although the issue in Gagliardi concerned waiver of a statute of limitations defense, we find the reasoning equally applicable in the case sub judice. We find the trial court had the authority to permit the husband to raise the jurisdictional issue in an untimely manner, and our review therefore is limited to whether the judge abused his discretion. Under Gagliardi, wife must show injury. Wife has alleged no injury as a result of the court’s permission to allow husband to file a petition nunc pro tunc. We therefore find no abuse of discretion.

Lastly, wife contends that husband consented to personal jurisdiction by filing exceptions to the proposed orders for alimony pendente lite. In support of her contention, the wife cites Commonwealth ex rel. Wheeler v. Wheeler, 274 Pa.Super. 478, 418 A.2d 506 (1980). However, the consent to jurisdiction in Wheeler was based on compliance with a support order for two years, not on filing of exceptions challenging the jurisdiction of the court. Therefore, Wheeler is inapposite.

The sole purpose of the husband’s exceptions was to question jurisdiction. As a result, the trial court correctly concluded that his filing the exceptions did not amount to consent to jurisdiction. The trial court treated husband’s actions as a special appearance for the purpose of challenging personal jurisdiction. See e.g. Taylor v. Humble Oil & Refining Co., 221 Pa.Super. 394, 292 A.2d 481 (1972). The court’s action was a valid exercise of discretion.

Order affirmed.

      . Pa.Stat.Ann. tit. 23, §§ 101 — 801 (Purdon Supp.1986)

        . When a defendant raises lack of personal jurisdiction, it becomes the plaintiffs burden to prove that the exercise of jurisdiction is permissible. Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183, 479 A.2d 500 (1984). Therefore once husband claimed lack of personal jurisdiction, the wife had the burden of proof as to jurisdiction over the husband. By premising personal jurisdiction solely on waiver and consent, the wife waived other bases for establishing jurisdiction.

      . Luzerne County C.P.R. 1910.8(b) provides:
      Any question of jurisdiction or venue, or in paternity cases the defense of the statute of limitations shall be raised by Petition and Rule to the Motions Judge prior to the scheduled date of a conference or hearing, and shall be promptly disposed of by the Miscellaneous Court Judge who may, in an appropriate case stay the scheduled conference or hearing.