author: SPAETH, Judge:

text:
    436 A.2d 657
    L. D. v. B. D. Appeal of: L. D.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1981.
    Filed Oct. 30, 1981.

      Peter J. Verderame, Langhorne Manor, submitted a brief on behalf of appellant.
    Jack J. Hetherington, New Britain, for appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   SPAETH, Judge:

This is a child custody case. The lower court awarded custody of a boy, now five years old, to his mother. The boy’s father has appealed. The lower court held a full hearing and filed a comprehensive opinion. We therefore accept the court’s findings. We do not, however, accept the court’s inferences from its findings, for in drawing those inferences, the court did not treat the parties equally but, rather, favored the mother. In our judgment, the facts, as found by the lower court, show that the father will be the better custodial parent. We therefore reverse and remand.

In custody cases the paramount concern is the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 369 A.2d 821 (1977). Therefore, the scope of appellate review is not limited to determining whether the lower court has abused its discretion. Berman v. Berman, 289 Pa.Super. 71, 432 A.2d 1066 (1981). Instead, it is of the broadest type. In re Leskovich, 253 Pa.Super. 349, 385 A.2d 373 (1978). “Although we will not nullify the factfinding function of the hearing judge, we are not bound by deductions or inferences made by the lower court from facts as found.” Davidyan v. Davidyan, 230 Pa.Super. 599, 603, 327 A.2d 145, 147 (1974). “We must exercise an independent judgment based on the evidence and make such an order on the merits of the case as right and justice dictate.” Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 296, 426 A.2d 555, 557 (1981).

Some of the facts are in dispute. In its opinion, however, the lower court states its appraisal of the credibility of the witnesses, Slip op. at 6-7,13,14, and we accept that appraisal. Most of the facts—at least, the essential facts—are not in dispute.

The parties were married in 1973. The father was 38 years old, the mother, 26. It was the father’s first marriage, the mother’s second. The mother’s first marriage ended in divorce. She had three children by her first marriage; Sean, almost 17 years old at the time of the hearing before the lower court; Lisa, 15 at the time of the hearing; and Theresa, who was killed some five years ago in an accident. Peter, the subject of this dispute, was born April 8, 1976; he was a bit under five years old at the time of the hearing.

Before their separation, the parties and the three children lived in a three-bedroom home, where Peter shared a room with Sean. During most of the period at issue, the father worked during the week as a maintenance painter at Temple University and alternated working nights with the mother at a bar of which he was a co-owner. The mother has also worked, but after Peter’s birth until the sale of the bar, in the Spring of 1979, she spent most of her time at home with the children.

In February 1977 the father’s fifteen year old nephew, Paul, began living with the family. He “had gotten into trouble in California with drugs and forgeries,” slip. op. at 4, and had come to live with the family at the suggestion of his probation officer, who thought that a new environment might contribute to his rehabilitation. Within two months of his arrival, the relationship between Paul and the mother developed into a sexual affair, “which continued on an off and on basis until several months before Paul returned to California in late 1979.” Slip op. at 4. The father was unaware of the mother’s affair with Paul until she told him about it during the summer of 1979; the father testified, without contradiction by the mother, that after disclosing her affair the mother told him she had become pregnant by Paul and had had a miscarriage. N.T. 1/15/81, 89.

It is evident that the parties’ marriage was destroyed by the mother’s affair. The parties underwent counseling, but it could not restore the marriage. The mother testified that the father said he forgave her, but that “[h]e was very hurt,” and although he tried, was unable to put the matter behind them. N.T. 2/24/81, 61. The father’s testimony showed that he no longer trusted the mother. N.T. 1/15/81, 49.

The marriage was further damaged by an incident that occurred about March 1980. One night the mother brought home with her an 18 year old girl, named Debra, with whom she worked. The mother explained that Debra “had had a disagreement with her mother” and did not want to go home. N.T. 2/24/81, 55. Later that night the father heard noises coming from Sean’s room, and upon investigating, discovered Sean and Debra engaged in sexual intercourse. The father became very upset, and the ensuing violent argument only ended with the arrival of the police and also, of the mother’s father, who took the mother and all the children to his home until matters calmed down. After several days the mother and children returned.

However, the mother vacated the parties’ bedroom and slept in the living room. N.T. 2/24/81, 93 94. Also, she started going out a good deal; she testified that she went “[p]robably twice a week” to a tavern, returning sometimes at 5:00 in the morning. Id. at 87- 88. The record is not quite clear just when this started, but in any event, early in July she met John M. and they shortly became intimate. Within a few weeks they went on a camping trip together, and, the mother testified, by August they had had sexual relations. N.T. 2/24/81, 75.

About this time—the exact date does not appear of record—the father started an action in divorce. On August 1, 1980, while the mother was away, the father left the family home, taking Peter with him. He has since established a new residence at the home of Joseph and Carol Finnigan. Mr. Finnigan is a co-worker whom appellant has known for many years. The Finnigans have two children, David, 14 years old, and Jennifer, 7. Also, Mrs. Finnigan’s mother lives with them. Peter shares a room with David, while the father sleeps on the couch. Peter attends nursery school. Otherwise Mrs. Finnigan cares for him until the father comes home, between 4:30 and 5:30 in the afternoon. The father pays the Finnigans $80 a week and contributes “extras” such as babysitting services.

The mother, meanwhile, remains in the family home with her children. John M. is also living there. He is divorced, and he and the mother plan to marry as soon as the father’s divorce becomes final.

It is fundamental to child custody cases that when the dispute is between the parents, there is no burden of proof; or, to put it differently, the parents share the burden equally. The question before the court is, “What is in the child’s best interests?” The court must answer this question after examining all of the evidence, and without resort to the device, appropriate in many other sorts of cases, of imposing on one party or the other any burden of proof. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Jon M.W. v. Brenda K, 279 Pa.Super. 50, 420 A.2d 738 (1980). In Re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). Here, we have concluded, the lower court did not thus treat the parties equally. Instead, as we believe her opinion, when read in light of the record, shows the hearing judge favored the mother. This is best and most pertinently shown by the judge’s handling of the evidence regarding the mother’s affair with Paul—although there are other illustrations too, some of which we shall discuss.

With respect to the father, the lower court said:

We found father to be honest and found that he is very much concerned about his son, Peter, but full of hurt and anger over his wife’s conduct which he regards as unforgiveable. He certainly has every reason to be hurt and angry but we cannot understand why he made no effort to supervise and guide his nephew whom he knew was sent into his care because of his misconduct in California. From all the evidence presented he assumed no responsibility for his nephew.
Slip op. at 13.

With respect to the mother, the court said:

Mother appeared as a credible witness. She frankly but not blatantly admitted her sexual relationship with Paul and appears to have understood and to have attempted to assuage her husband’s hurt .... She is outgoing and warm in her relationships. We do not condone in any way her affair with Paul. She certainly should have prevented it from starting and continuing but we can understand that she found someone with whom she could discuss things—something which she was unable to do with her husband.
Slip op. at 14.

We are unable to accept this allocation of responsibility. No doubt the father was at fault for not supervising and making an effort to guide Paul. The mother’s fault, however, was far greater. She was as aware as the father of Paul’s history. Moreover, since the father worked during the day, the responsibility for supervising the children was at least as much hers as the father’s. Instead of supervising and making an effort to guide Paul, she proceeded to contribute to his delinquency. For the lower court to say that it could not understand the father’s conduct, while it could understand the mother’s, manifests such harshness to the father and sympathy to the mother as to demonstrate to us that the court did not treat the parties equally but, rather favored the mother.

The lower court evidently believed that the only significance of the mother’s affair was whether it had had any adverse effect on Peter. Thus the court said:

Over objection of Mother’s counsel, we permitted testimony from him [Paul] as to his relationship with Mother although it was remote only to determine if there had been any adverse effect on the child who was admittedly between the ages of eleven months and three years during the period in question.
Slip op. at 6.

The court found that there had been no adverse effect—and we accept that finding—and cited cases holding that “the mere fact of a parent’s non-marital relationship is insufficient to deny him or her custody of the children.” G.J.F. v. K.B.F., 284 Pa.Super. 139, 425 A.2d 459 (1981) quoting Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 138, 360 A.2d 587, 589 (1976).

It was necessary, however, for the lower court to go further. For the significance of the mother’s affair was not “only” whether it had had an adverse effect on Peter, but in addition, what it revealed about the mother’s ability to be a good custodial parent for Peter.

It may well be, as the lower court said, that the mother is “outgoing and warm in her relationships,” and needed “someone with whom she could discuss things.” However, her decision to find an outlet, or comfort, in an affair with a 15 year old boy necessarily calls into question her emotional stability and maturity.

We are unable to share the lower court’s appraisal of the mother’s affair as “remote.” The hearings before the lower court were in January and February 1981. As the lower court found, the mother’s affair “continued on an on and off basis until several months before Paul returned to California in late 1979.” Slip op. at 4. Moreover, the record indicates that the mother still does not accept the fact that it was her responsibility that there should be no affair. Thus she testified as follows:

Q. Tell the court who was the aggressor in this affair.
A. There was no aggressor. It’s just something that happened.
Q. Something that happened between a 15-year-old and a 30-year-old; is that correct?
A. Maybe by age he was 15, but by other standards he was older than most people in this room.
N.T. 2/24/81, 103.

In this regard, there appears to us to be an inherent inconsistency in the lower court’s appraisal of the evidence. For while expressing its confidence in the mother, the court rejected the mother’s favorable opinion of Paul, instead characterizing him as “a witness unworthy of belief as to most of his testimony,” slip op. at 6, and pointing out that “[h]e had been involved with drugs in California and had forged checks which was why he was sent to Pennsylvania,” id. As we have indicated, we have no difficulty accepting the court’s appraisal of Paul’s credibility. We do have difficulty understanding the court’s confidence in the maturity of a woman who had an affair with such a rotter. In any event, if the court chose to be so understanding of the mother’s conduct, it should have been equally understanding of the father’s, much less troublesome, conduct.

Other aspects of the lower court’s opinion illustrate the court’s unequal treatment of the parties. The more significant of these are as follows.

The lower court criticizes the father for “[h]is lack of interest in establishing a relationship with his two stepchildren ....,” Slip op. at 13, and suggests that “his total ignoring of them and their problems casts serious doubts upon his ability to guide his son as he develops,” id. It is evident from the record, however, that the father’s lack of relationship with his stepchildren is by no means all his responsibility. Whenever a marriage involves stepchildren, special understanding and considerable accommodation are required, by both adults. Here that was certainly so. The mother testified that “right from the very beginning of the marriage,” Sean has had “a lot of resentment.” N.T. 2/24/81, 30. Three years after the marriage she took Sean to a mental health foundation, where he went to a child psychologist for five or six months. Id. In addition, the parties have very different ideas about raising children, and the mother told the father that he was not to discipline her children nor concern himself with their affairs. N.T. 1/18/81 at 40; 2/24/81 at 85-86. An example of the mother’s attitude appears when she was asked about the father being “upset about seeing Debra in bed with Sean.” The mother responded: “He shouldn’t have opened the door, should he? He went into a closed bedroom door.” N.T. 2/24/81, 85. We are sure that the relationship between the father, mother, and the children was difficult. We are equally sure, however, that the responsibility for this is shared by both parties. The father has clearly been extremely interested in the care of Peter and has involved himself in all aspects of his son’s life, despite the heavy work schedule he has had to maintain. Whatever the degree of his fault in not developing a better relationship with his stepchildren, it does not, contrary to the lower court’s suggestion, “cast[] serious doubts” on his ability to care for Peter.

The lower court also finds the father’s current living arrangement to be makeshift. “While . . . convenient for Father, it does not show much initiative on his part to provide a true home for himself and his son.” Slip op. at 14. The arrangement is certainly not ideal. However, evidently Peter enjoys a good relationship with Mrs. Finnigan—“Aunt Carol”—who does not work, and who, as already mentioned, cares for him when he is not at nursery school or home with his father. It is of course true that Peter is not with his stepbrother Sean and stepsister Lisa, but they are a good deal older than he is; moreover, when asked, “How do you get along with Sean?,” Peter replied, “I just fight with him.” N.T. 1/15/81, 119. While Peter still shares a room, David is closer in age to him than Sean, and they appear to get along. With regard to the father’s lack of “initiative”: Sleeping on a couch in the living room is no doubt uncomfortable for the father, but nothing suggests that it has any adverse effect on Peter. The father testified that he only planned to remain at the Finnigans’ “until I pay some of my bills off.” N.T. 1/15/81, 85. “[T]o provide a true home for himself and his son” would, it seems evident, be more expensive than being at the Finnigans’ and would likely require hiring someone to care for Peter when he was not at school, and the father was at work. One must wonder how much of an improvement for Peter such an arrangement would be. In any event, the problem was not so simple to solve, and the father’s lack of initiative not so clear, as the lower court’s comments suggest.

In its opinion the lower court states that “[w]e have also considered Peter’s desire expressed on two separate occasions that he wanted to live with his Mother.” Slip op. at 17. This likewise impresses us as oversimplification.

The first occasion was at the hearing on January 15, 1981, when the hearing judge asked Peter:

Q. Would you like to spend all day during the week with your mommy, and visit your father, your daddy on the weekend?
A. (Nods head affirmatively.) I like to live with my mommy.
Q. You would like to live with your mommy, and then visit with your daddy on the weekends, is that it?
A. (Nods head affirmatively.)
N.T. 1/18/81, 115.

No doubt encouraged by this response, counsel for the mother then asked Peter, “Who is your favorite person?,” to which Peter responded, “My daddy.” Id. at 119.

This second occasion was at the hearing on February 24, 1981. This time the court refrained from leading Peter. When Peter said, “I’d rather live with both of them,” N.T. 2/24/81, 144, the court, carefully and gently, explained that “because of things between themselves that have nothing to do with you,” that was not possible, and asked, “[I]f you have to make your choice, where would you like to be all week, and then where would you like to be on visits?” to which Peter responded, “Mommy,” id. 144-45.

It was certainly appropriate for the court to question Peter. It is unfortunate, however, that on the first occasion, the questioning was so leading as to favor one of the contesting parties. In any event, given Peter’s statement that his father was his “favorite person,” and especially given his age—he was less than 5 years old; see Tomlinson v. Tomlinson, 248 Pa.Super. 196, 374 A.2d 1386 (1977)—the lower court was unwarranted in giving any weight to what it understood to be Peter’s preference to live with his mother.

Finally, we think it necessary to comment on the psychological evidence. The father called a psychologist, Carl A. LeFevre, Jr. By stipulation of the parties, the lower court admitted into evidence, the written report of Jane E. Kessler, a psychological consultant attached to the court’s Family Court Psychological Service; Ms. Kessler did not testify.

In its opinion the lower court states that Mr. LeFevre “appears to be well qualified.” Slip op. at 16. The court summarizes Mr. LeFevre’s opinion that the father “possesses many skills and qualities found in parents who offer stability, continuity, attention, affection, and age-related activities and parenting skills to a four year old child,” and states, “We do not take exception to Mr. LeFevre’s opinion that Father is able to parent a four year old . . . . ” Id. However, the court states, it did “take exception that he recommends that custody be awarded to one parent without having had any contact with the other parent.” Id. at 16-17. This criticism was entirely in order; given Mr. LeFevre’s failure to interview and test the mother, the court was well within its discretion in substantially discounting his testimony. Moreover, as we have recently had occasion to emphasize, who should have custody of a child is a legal decision for the court alone to make, not for a psychiatrist or psychologist. Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 433 A.2d 1363 (1981).

Our difficulty with the lower court’s opinion arises not from its criticism of Mr. LeFevre’s opinion but from the fact that when it came to Ms. Kessler’s report, the court appears to have suspended its critical faculties.

We assume that Ms. Kessler was qualified to express an opinion—although her qualifications do not appear of record, and we do not know what “psychological consultant” means. As we have mentioned, she did not testify. In considering her report, therefore, it was important to bear in mind that she was not required to explain it under cross-examination.

Ms. Kessler saw the mother and father individually on October 7, 1980; the mother and father together on October 14; the mother and father with Peter on October 28; and spoke to the mother on the telephone on November 12. Her report—on which the lower court relied, characterizing it as “well stated,” Slip. op. at 15—is highly critical of the father and very favorable to the mother. We find it at least as unimpressive as Mr. LeFevre’s testimony.

Ms. Kessler states that the father’s “chronic use of denial is a defense mechanism and his inability to be insightful causes him to feel that he has no psychological problems.” According to Ms. Kessler, however, he “has two long-term personality disorders; he is both a compulsive personality and a dependent personality.” Just what these “disorders” are, or indeed, whether psychologists are even agreed that they are disorders, and if they are, upon their definition, Ms. Kessler does not say. Nor does she say whether she submitted the father to any recognized psychological tests—as, it appears, Mr. LeFevre did—or if she did, what these tests were and what were the results. So far as appears from her report, the basis of Ms. Kessler’s opinion of the father’s personality was what she learned from the parties when she saw them individually and together.

Apparently the father was tight-lipped and stiff in his behavior. The mother, in contrast, evidently confided in Ms. Kessler,—and what she said appears to have been accepted uncritically and with a sympathy that we cannot distinguish from bias. After quoting the mother’s statement to her that the father “was completely sexually inexperienced when she met him,” Ms. Kessler adds: “Even after their marriage, he was only able to perform sexually under certain conditions. This contributed to their marital problems.” Referring to the mother’s affair with Paul, Ms. Kessler says:

According to [the mother], Paul provided the companionship that her husband did not give her, and their friendship later developed into a love affair. In my opinion, [the mother’s] affair with Paul was not indicative of any chronic personality disorder or emotional instability on [the mother’s] part, but was simply one isolated reaction to an untenable marital situation.

These statements should not have been accepted without further inquiry; they beg for cross-examination. Had the mother in any way “contributed to [the parties’] marital problem?” Did her affair with Paul indicate no “emotional instability?” If the mother had no “chronic” personality disorder, did she have some other sort? Was her affair “simply” an “isolated reaction?” What does “reaction” mean? That the mother was not responsible for starting the affair? “Isolated,” when the affair continued on an off and on basis for two years? And assuming the truth, and fairness, of the mother’s characterization of the father as sexually inadequate, was it Ms. Kessler’s opinion that that justified or excused the mother’s affair with a 15 year old boy? Such a report, which may in fact not be biased but unexplained, appears to be, and which raises more questions than it answers, is not in our opinion “well-stated.”

More might be said, not only about the report but other aspects of the record, and it might be said on either side. It is time, however, to state our conclusion.

In its opinion the lower court states that “Father has given an impression of rigidity which cannot fail to result in problems to his son.” Slip op. at 13. Similarly, Ms. Kessler, the court’s psychological consultant, states:

During our sessions [the father] demonstrated that he was a perfectionist, was preoccupied with rules and order, and insisted that others submit to his way of doing things. He showed a lack of awareness of the feelings elicited by his behavior.

We do not much differ with this appraisal. This case, it seems to us, involves, on the one hand, a rigid, puritanical father, and on the other, a self-indulgent, permissive mother. One way to state the issue is, not which parent’s custody will better serve Peter’s best interests, but which will do the lesser damage. This is a sour statement, and unfair to the extent that it implies any lack of love; we are satisfied that both parties love Peter, and want to rear him to be a fine man. Moreover, who ever saw a custody case in which both parents were paragons? Or, for that matter, a panel of judges, all of them paragons? The parties, and Peter, and we, must take the facts as they are.

For all our misgivings, we believe the father should have custody of Peter. He has done nothing to shake our confidence in his ability to rear Peter comparable to what the mother has done, and while it might be better, his living arrangement with the Finnigans is adequate. The mother said that her life with John M. is “quite satisfying” (as Ms. Kessler’s report quotes her). It may be—and it is to be hoped—that she will achieve a happiness and sense of security with Mr. M. that she has not so far enjoyed. (In this regard, it may be noted, the mother’s father expressed the opinion that Mr. M. was better for the mother than the father had been, exercising an authority she needed, while at the same time showing her more love. N.T. 1/15/81, 130-33.)

Meanwhile, the matter will remain within reach of the lower court. A decision regarding custody is never final but may always be reviewed as circumstances require. In Re Custody of Phillips, 260 Pa.Super. 402, 394 A.2d 989 (1978); Friedman v. Friedman, 224 Pa.Super. 530, 307 A.2d 292 (1973); Commonwealth ex rel. Hickey v. Hickey, 216 Pa.Super. 332, 264 A.2d 420 (1970). Although in the end we have concluded that we must reverse the lower court’s award, that implies no lack of confidence in the lower court. To the contrary. The lower court may be right. As we have said elsewhere, “we have no special wisdom that enables us to know better than anyone else what [custody] order right and justice dictate.” Commonwealth ex rel. Berman v. Berman, supra, 289 Pa.Super. at 94, 432 A.2d at 1067. We must nevertheless do what our independent judgment requires.

Upon remand we expect that the lower court will, after a hearing, enter a visitation order. In the past there have been some difficulties about visits. Without saying more now, we simply note that we are satisfied that both parties have contributed to those difficulties. We also note that the mother has expressed concern that the father will take Peter to Scotland or California. The lower court has ample resources to ensure that both parties will honor its visitation order, Davidyan v. Davidyan, 230 Pa.Super. 599, 327 A.2d 145 (1974), not simply because it is an order of the court but because it is in Peter’s best interests that he maintain and develop a loving relationship with both his parents. Our order awarding custody of Peter to his father will not go into effect until the lower court enters its visitation order.

The order of the lower court is reversed. Custody of the child is awarded to his father, and the case is remanded for further proceedings consistent with this opinion.


source: Caselaw Access Project

author: HESTER, Judge: VAN der VOORT, Judge,

license: Public Domain

text:
    436 A.2d 665
    In re Expungement Petition of Richard Charles HAEFNER. Appeal of Richard Charles HAEFNER.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed Oct. 30, 1981.

      Steve Alexander, Philadelphia, for appellant.
    John Kenneff, Assistant District Attorney, Lancaster, for Commonwealth, participating party.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   HESTER, Judge:

This is an appeal from an order of the Court of Common Pleas of Lancaster County refusing to grant expungement of an arrest record. The procedural history and facts relevant to the issues on appeal are as follows.

Appellant was charged with corruption of minors at Information No. 3218 of 1975, involuntary deviate sexual intercourse at No. 3219 of 1975, and corruption of minors at No. 3220 of 1975. The charge at No. 3218 of corruption of minors was nolle prossed by the Commonwealth on March 7, 1980 after five years of inactivity for lack of evidence.

Appellant was tried before a jury on the other two criminal Informations in a trial which began on January 27, 1976 and ended on February 3, 1976 when the trial judge sua sponte declared a mistrial. The trial judge ordered a mistrial when the jury foreman indicated that the jury would not be able to reach a verdict. Our Court granted a motion to quash the Information because appellant’s retrial was barred by his Fifth Amendment right not to be placed in double jeopardy. Commonwealth v. Haefner, 264 Pa.Super. 144, 399 A.2d 707 (1979).

A hearing was held on the petition to expunge on January 25, 1980 at which time the Commonwealth presented no evidence. The trial court granted expungement as to criminal Information No. 3218, and denied expungement as to the two Informations on which appellant was tried. This timely appeal followed.

Appellant contends the trial court erred in imposing upon him the burden of affirmatively demonstrating his non-culpability under the facts herein.

We have held that the right of an accused to seek ex-pungement of an arrest record is an adjunct to due process. Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976). We have further held that where the Commonwealth has made out a prima facie case but the prosecution was terminated because of a procedural irregularity or legal technicality unrelated to questions of guilt or innocence, the accused has the burden of affirmatively demonstrating non-culpability. Upon such a showing, the trial court then had to weigh the Commonwealth’s interest in retaining the arrest record against the accused’s interest in freedom from harm ancillary to the arrest record. Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978); Commonwealth v. Rose, 263 Pa.Super. 349, 397 A.2d 1243 (1979). Mueller dealt with a dismissal pursuant to Rule 1100, a procedural rule, and not an inability to produce sufficient evidence to convict on the part of the Commonwealth at a trial on the merits.

One of the basic tenets of our system of criminal justice is that the accused is presumed innocent until proven guilty beyond a reasonable doubt. Here, unlike Mueller, supra, although a prima facie case was made out, following a lengthy trial on the merits the jury was unable to agree on a verdict demonstrating the Commonwealth’s inability to prove appellant’s guilt beyond a reasonable doubt. Then, not because of any procedural irregularity, but rather because of appellant’s Fifth Amendment right not to be placed in double jeopardy, the Information against him was quashed and appellant was not retried. Thus, the prosecution of appellant was terminated because the Commonwealth was unable to produce sufficient evidence to convince a jury of his peers of his guilt beyond a reasonable doubt and a second trial was constitutionally prohibited. We therefore distinguish Mueller, supra, and refuse to impose the burden of showing non-culpability upon the appellant. We will not, nor will we permit the trial court to engage in an independent evaluation of the evidence presented at trial which already proved to be insufficient to prove appellant’s guilt beyond a reasonable doubt. Commonwealth v. Capone, 282 Pa.Super. 458, 422 A.2d 1383 (1980).

We next must balance the competing interests in determining whether appellant is entitled to expungement. The Commonwealth presented no evidence whatsoever justifying the retention of appellant’s arrest record.

On the other hand, appellant testified that he holds a Ph.D. in geology from Penn State University and had been an assistant professor at two colleges. He testified that he lost his position after the charges were instituted and has been unable to obtain new employment. He has applied at approximately 100 institutions seeking a teaching position. He stated that he had never been arrested before, nor after these charges were filed. He further stated that his arrest record has interfered with his ability to obtain employment and has affected his reputation. Finally, he testified he was not guilty of any of the offenses with which he was charged.

Our review of the record indicates the appellant has shown substantial reasons why he should be free of an arrest record, while the Commonwealth has failed to submit a compelling reason, to maintain the record.

Accordingly, the Order of the trial court is reversed and the case remanded with directions to enter an order granting expungement.

VAN der VOORT, J., files a dissenting opinion.

VAN der VOORT, Judge,

dissenting:

I respectfully dissent. In Commonwealth v. Mueller, 258 Pa.Super. 219, 223, 392 A.2d 763, 765 (1978), a majority of our Court sitting en banc vacated the lower court’s expungement order, holding that “where the record shows that the Commonwealth made out a prima facie case of guilt on the part of an accused, he will then have the burden to affirmatively demonstrate non-culpability at a hearing, otherwise his petition to expunge will be denied.” In the case before us, as in Mueller, the Commonwealth made out a prima facie case against the accused at the preliminary hearing, and the prosecution was terminated for reasons not related to guilt or innocence. In Mueller the prosecution was terminated because of the Commonwealth’s failure to proceed with the case within 180 days of filing of the complaint; in the case before us it was terminated because the trial judge impetuously and improperly declared a mistrial. Unlike the accused persons in Commonwealth v. Rose, 263 Pa.Super. 349, 397 A.2d 1243 (1979), and Commonwealth v. Capone, 282 Pa.Super. 458, 422 A.2d 1383 (1980), cited in the majority opinion, appellant in the case before us was not found to be innocent. The majority equates a mistrial caused by the court with a finding of innocence. This appears to me to be clearly a non sequitur.

I believe that Mueller is controlling in this situation, and I would therefore affirm the lower court’s order refusing to expunge appellant’s arrest record.


author: HESTER, Judge:

text:
    436 A.2d 667
    COMMONWEALTH of Pennsylvania, v. James F. TROUTMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Oct. 30, 1981.

      Charles P. Buchanio, Lebanon, for appellant.
    David Brightbill, District Attorney, Lebanon, submitted a brief on behalf of Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   HESTER, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Lebanon County. The procedural history and facts relevant to the issues on appeal are as follows:

Appellant was convicted by a jury of the August 10, 1977 burglary of the residence of his uncle, Charles L. Minnich, in Lebanon County. Minnich testified that his home was not ransacked but apparently burglarized by someone familiar with it. Insurance papers, bonds, and bankbooks were removed from a secret compartment and stolen along with guns and jewelry, including a diamond ring.

The chief witness against appellant was an accomplice, Robert Weber. He testified that on the morning of August 10, 1977, he and appellant talked about burglarizing some house and appellant indicated he had a place in mind. Weber related that appellant broke a window with a screwdriver, removed the aforementioned items, then left through a sliding door. They then went back to appellant’s apartment.. Later, a savings account passbook was used to withdraw money and some of the other items were disposed of at a flea market. The two men were later arrested in New Jersey on unrelated charges and Weber told police where they could find the items from this burglary and another burglary in Berks County.

After post trial motions were denied, appellant was sentenced to two to five years imprisonment. This timely appeal followed.

Appellant contends the trial court erred in permitting testimony concerning appellant’s involvement in another burglary in Berks County.

Our examination of the record discloses that appellant’s trial counsel attempted to impeach Weber’s credibility by a series of questions on cross-examination. Trial counsel brought out that appellant and Weber had a conversation at the Berks County Jail. However, there was no indication as to whether appellant visited Weber there or why appellant happened to be there. The purpose of this questioning was to disclose that Weber allegedly stated he was going to testify against appellant because he could thereby obtain a favorable plea bargain.

Further questioning brought out the fact that appellant was wearing the stolen diamond ring at the time of arrest. However, part of appellant’s defense at trial was that he was wearing it at the time of arrest, and not during the week prior because he had in fact purchased it from Weber sometime after the actual burglary had taken place. Weber next indicated that none of the stolen items were left at appellant’s apartment and he never told the police that any of the stolen items from the Lebanon County burglary could be found there.

Redirect and recross-examination of Weber showed that he was arrested with appellant in New Jersey for possession of narcotics and was cooperative as to the burglary in Reading. It also disclosed that he was serving concurrent terms for two separate crimes pursuant to favorable plea bargains. However, there was no indication up to that point in the testimony that appellant was involved with the Berks County burglary.

Trooper McCreary stated on cross-examination that none of the stolen items from the Lebanon County burglary were found in appellant’s apartment. This statement conforms with Weber’s testimony that he never told police these items would be found there. Furthermore, McCreary’s own testimony indicates he obtained a search warrant based upon Weber’s statements that stolen items from the Berks County burglary would be found there. After executing that warrant, a second warrant was obtained which was not based upon any statements of Weber’s in order to search for stolen items from the Lebanon County burglary.

The trial court thus erred in permitting Trooper McCreary to testify concerning the search warrant being issued to search for stolen items from the Berks County burglary. McCreary also testified over objection that stolen items from that burglary were in fact found in appellant’s apartment. The trial court’s reason for permitting this testimony was based upon appellant’s alleged attempt to discredit Weber’s testimony. However, our review of the record shows that Weber indicated the stolen items from the Lebanon County burglary were in his roommate’s apartment, not in appellant’s apartment. Thus, McCreary could have clarified his testimony on redirect by stating that Weber had not in fact given them information that the items stolen in Lebanon County would be found there, but rather that they had obtained a search warrant based upon their own investigation in order to search for those items.

The testimony concerning the Berks County burglary was therefore irrelevant and highly prejudicial to appellant. It conveyed the fact of a prior criminal offense to the jury. Commonwealth v. Povish, 479 Pa. 179, 387 A.2d 1282 (1978); Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976).

Since we note that trial counsel failed to submit a motion to the trial court for a mistrial, we now direct our attention to appellant’s claim of ineffective assistance of counsel. On a claim of ineffective assistance of counsel, our Supreme Court has held that our inquiry ceases whenever there is a finding that counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 3491 (1967).

We are unable to ascertain from the record why trial counsel objected but failed to move for a mistrial after the redirect examination of Trooper McCreary expressly indicated prior criminal activity of the same type for which appellant was on trial. The testimony was irrelevant and highly prejudicial, particularly where credibility was of such major importance to appellant’s defense.

We therefore vacate the judgment of sentence and remand the case to the trial court for an evidentiary hearing to determine whether trial counsel’s failure to submit a motion to the trial court for a mistrial had any reasonable basis designed to effectuate appellant’s interests. If trial counsel’s actions had any reasonable basis designed to effectuate appellant’s interests, the judgment of sentence should be reinstated. If not, a new trial should be granted.

Judgment of sentence vacated and case remanded.


author: CAVANAUGH, Judge: HESTER, Judge,

text:
    436 A.2d 669
    Barbara Ann D’ALLESSANDRO, v. DURHAM LIFE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed Oct. 30, 1981.
    Petition for Allowance of Appeal Granted Feb. 16, 1982.

      Hugh M. Emory, Paoli, for appellant.
    William E. Benner, Doylestown, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

On or about March 21,1975, Charles D’Allessandro applied for group life insurance with the Durham Life Insurance Company and signed an application in which he stated that in the prior five years he had not consulted a physician. He also stated that he never had heart trouble, high bipod pressure or chest pains. At that time he had a history of coronary and other heart problems, including coronary pain consistent with coronary disease and angina pectoris. During the period in question Mr. D’Allessandro had been hospitalized at St. Agnes Hospital in Philadelphia for recurrent coronary insufficiency pain and at Roxborough Memorial Hospital for kidney problems. He had also been treated by a Dr. Segal for renal cholic. On July 1, 1975, the appellant, Durham Life Insurance Company, issued a group life insurance policy in the amount of $50,000.00 to Mr. D’Allessandro and his wife, Barbara D’Allessandro, the appellee herein, was named the beneficiary. Mr. D’Allessandro died on October 14, 1975, as a result of coronary artery disease. Prior to his death he paid premiums in the amount of $400.65. A copy of the application containing the insured’s statements was furnished to the insured during his lifetime. Appellee claimed the proceeds of $50,000.00 under the insurance policy which the appellant refused to pay. Appellee then commenced an action in assumpsit. The matter was decided by Judge Garb on the basis of stipulated facts. Appellee’s motion for summary judgment was granted and appellant’s motion for summary judgment was denied. A verdict was entered for appellee and against appellant in the amount of $50,000.00 and Durham Insurance Company has appealed to this Court.

The sole issue for our determination is whether the application for insurance which was completed and signed by Mr. D’Allessandro may be used by the appellant to contest the claim of appellee, the named beneficiary under the policy. The court below determined that the application contained obviously false representations but that it could not be used to contest the appellee’s claim. Appellee agrees that the misstatements of Mr. D’Allessandro in his application for insurance were of such a nature that she would be barred from claiming under the policy if the application could be used to contest the claim. The policy itself deals with contestability and states:

“INCONTESTABILITY—STATEMENTS BY INSURED PERSONS

The insurance of any person shall be incontestable after it has been in force for two years. All statements made by any of the persons insured hereunder shall be deemed representations and not warranties and no such statement shall be used in defense of a claim hereunder unless it is contained in a written instrument signed by him and unless a copy of the instrument containing the statement has been furnished to the person making the claim.” The insured died within two years after the issuance of

the policy so that it does not become incontestable because of the first sentence. Incontestability, if it exists, would be based on the second sentence. The court below found that the appellee was not furnished with a copy of the application signed by Mr. D’Allessandro until after his death and under the court’s interpretation of the policy it could not be used by the insurance company as a defense against appellee’s claim.

When interpreting a contract the intention of the parties must be determined. In a written contract the intent of the parties is manifested by the writing, and when the words are clear and unambiguous the intent is to be determined only from the express language of the agreement. Robert F. Felte, Inc. v. White, 451 Pa. 137, 302 A.2d 347 (1973). See also Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3rd Cir. 1979). In this case, the words in the contestability clause are unambiguous as far as they go. The court below interpreted the contract as setting forth the intention of the parties that the statement must be furnished to the claimant prior to the insured’s death, and we agree with that interpretation. As stated in Blocker v. Aetna Casualty & Surety Company, 232 Pa.Super. 111, 114, 332 A.2d 476, 477 8 (1975):

The single issue for our determination will of course be resolved by our analysis of the terms and conditions of the insurance policy issued by the appellant. This analysis of an insurance policy, like the interpretation of any other written contract, is a question of law for the court. Bole v. New Hampshire Fire Insurance Company, 159 Pa. 53, 28 A. 205 (1895). The policy must be read in its entirety; it should be construed according to the plain meaning of the words used, so as to avoid ambiguity while at the same time giving effect to all of its provisions. Masters v. Celina Mutual Insurance Company, 209 Pa.Super. 111, 224 A.2d 774 (1966); Galvin v. Occidental Life Insurance Company, 206 Pa.Super. 61, 64, 211 A.2d 120, 122 (1965). If it is determined that the language of a policy prepared by an insurer is either ambiguous, obscure, uncertain or susceptible to more than one construction, we must construe that language most strongly against the insurer and accept the construction most favorable to the insured. Patton v. Patton, 413 Pa. 566, 573, 198 A.2d 578, 582 (1964); Flynn v. Allstate Insurance Company, 50 Pa.D. & C.2d 195, 199-200 (1970).

The court below in reaching its conclusion that the person making the claim, in this case the beneficiary under the policy, must be furnished with a copy of the statement prior to the insured’s death, relied on Layman v. Continental Assurance Company, 430 Pa. 134, 242 A.2d 256 (1968). In that case the issue was whether an insurance carrier complied with the Act of May 11, 1949, P.L. 1210, § 6, as amended, 40 P.S. § 532.6(3) by sending a beneficiary a copy of her husband’s application for insurance three months after his death. The court held that the statute required that a copy of the application be sent to the insured or beneficiary prior to the death of the insured. .

Words in an insurance policy are to be given their plain and popular meaning. Ranieli v. Mutual Life Insurance Co., 271 Pa.Super. 261, 413 A.2d 396 (1979). The policy in this case provided that the application for insurance may not be used to contest a claim unless a copy is given to the person making the claim. The contestability clause was inserted in the policy by the insurance company and was obviously placed there for the benefit of “the person making the claim” since it does not in any way benefit the insurer. There would be little or no benefit to the claimant if the policy only required that a copy of the application be furnished to him after the death of the insured, as it is too late then to make amends. In Layman v. Continental Assurance Company, supra, the insurance company argued that the company could furnish a copy of the application to the beneficiary after the insured’s death. The Supreme Court stated at 430 Pa. 138, 139, 242 A.2d 258 (1968):

Furthermore, appellant assumes that the statute must permit furnishing of a copy after death because its language includes “beneficiary” as well as “insured.” This assumption apparently stems from the fact that the beneficiary has no right to alter an insured’s application, and therefore could do nothing if a copy of the application was furnished to him (the beneficiary) before the insured’s death. Of course, this argument totally overlooks the very real possibility that the beneficiary, when he realizes that his right to recover might be defeated by the in sured’s false statements, will promptly notify the insured and prevail upon the latter to correct these statements.

(Emphasis added)

The case of Metzinger v. Manhattan Life Insurance Company, 71 Cal.2d 423, 78 Cal.Rptr. 463, 455 P.2d 391 (1969) involved a life insurance policy which provided that the insurer could not contest a claim unless a copy of the insured’s statement pertaining to insurability “has been furnished to the individual or to his beneficiary.” The court held that since a copy of the statement was not furnished to the insured or to his beneficiary until after the insured’s death, the insured’s statement could not be used to contest the claim. The Supreme Court of California cited Layman v. Continental Life Assurance Company, supra, in support of its determination that the purpose of the provision in the policy was to provide an opportunity to review the application while the insured is still alive, and to correct misstatements which may appear therein.

It is basic that any ambiguities or uncertainties in language in insurance policies are construed against the insurer and in favor of coverage. Mohn v. American Casualty Company, 458 Pa. 576, 326 A.2d 346 (1974). Applying this rule, the ambiguity as to when the application must be furnished to the claimant must be resolved against the insurer.

Appellant agrees that in most cases the “person making the claim” will be the “beneficiary”. Such was the situation in the instant case. We recognize that in some cases the designated beneficiary will not be the claimant, as where the beneficiary predeceases the insured or becomes incompetent. In such a case, the claimant may be the personal representative of the insured or the guardian of the estate of the incompetent. The policy provides in discussing “beneficiary for death benefits” that “should any beneficiary of an Insured predecease such Insured, the interests of such beneficiary shall vest in the Insured. Any part of the insurance for which there is no designated beneficiary surviving at the death of the insured shall be payable to the executors or administrators of the Insured.” In these circumstances the person making the claim may not be known to the insurer prior to the death of the insured. This does not alter the fact that where the beneficiary designated in the policy is the person making the claim, the insurer may readily furnish a copy of the application to the claimant during the insured’s lifetime.

It is clear in this case, and the parties to the dispute have so stipulated, that if the insurer could contest the claim that it would prevail. However, it drafted the contestability clause, and it should not now complain that it gives protection to a claimant who will benefit by the misrepresentations of the applicant for insurance.

Order affirmed.

HESTER, J., files dissenting opinion.

HESTER, Judge,

dissenting:

I respectfully dissent.

This case was decided by the lower court on the basis of a stipulation of facts in support of cross motions for summary judgment, including the following narrowly-stated issue: “May Mr. D’Allessandro’s application for insurance be used by Durham Life Insurance Company to contest the claim of Mrs. Barbara D’Allessandro?”

The parties also stipulated that Mr. D’Allessandro signed an application for the purchase of a group life insurance policy in the amount of $50,000 on March 21, 1975. In this application, Mr. D’Allessandro knowingly made material misrepresentations to Durham Life Insurance Company concerning his medical history and his then physical condition, specifically concerning his chronic coronary disease and recurring chest pains.

Mr. D’Allessandro died of a coronary artery disease less than seven months after he applied for the insurance. The matters misrepresented on the application actually resulted in his death.

Mrs. D’Allessandro was named the sole beneficiary on the policy. She claims that she had no knowledge of the application or policy prior to her husband’s death.

The parties also stipulated that Mr. D’Allessandro received a copy of his signed application along with the original insurance policy, prior to his death. This receipt would satisfy any requirement of the Act of May 11, 1949, P. L. 1210, Section 6, as amended, 40 P. S. Section 532.6(3) which, if applicable, would have required Durham to furnish a copy of the application to either Mr. D’Allessandro or Mrs. D’Allessandro as a condition precedent to the use of the application, or any statement therein, by Durham to contest its obligation to pay on the policy.

As correctly decided by the court below, this case does not involve the application of the minimum requirements of either Pennsylvania or Missouri law. The case must be decided by interpreting the insurance policy which, like that of any written contract, is a question of law for the Court.

The relevant section of the policy in question reads as follows:

“Incontestability—Statements by Insured Persons. The insurance of any person shall be incontestable after it has been in force for two years. All statements made by any of the persons insured hereunder shall be deemed representations and not warranties and no such statement shall be used in defense of a claim hereunder unless it is contained in a written instrument signed by him and unless a copy of the instrument containing the statement has been furnished to the person making the claim.”

Since Mr. D’Allessandro died less than seven months after he applied for the insurance, the first sentence of this provision is not applicable. The lower court held that the insurance application contained obviously false representations, but that Durham could not use it to contest the claim based on this provision of the policy. In reaching its conclusion the lower court has obviously equated the words “beneficiary” with “the person making the claim”.

Mrs. D’Allessandro is the designated beneficiary on the certificate of insurance. She is also “the person making the claim”, and the parties have so stipulated. Durham admits that “in most cases” the “beneficiary” will also be “the person making the claim”. However, as recognized by the court below, there are numerous instances where the “beneficiary” is not “the person making the claim”. For example, if Mrs. D’Allessandro had predeceased her husband or had been declared mentally incompetent prior to his death, her personal representative would become “the person making the claim”.

If an insurance policy designates a class of beneficiaries, e. g., “to all of my children who are then living”, then it is clear that the person or persons who may ultimately make a claim can not be determined until the death of the named insured. Furthermore, in the case of minor beneficiaries, the person actually making the claim would be the guardian of the minor child.

In all of these circumstances, it would be unreasonable to expect Durham or any insurance company to ascertain the identity of all potential personal representatives, guardians or other persons who may make a claim on the policy.

Simply stated, a person cannot make a claim unless there is an unconditional cause of action to be stated. In the instant case, there was no claim to be made under the policy until the death of Mr. D’Allessandro. Upon his death, Mrs. D’Allessandro, who was previously named as the designated beneficiary, became vested or entitled to make a claim under the policy. She became a claimant. At that time, Durham furnished her a copy of the application in order that it could then contest the claim on the basis of the intentional misrepresentations of Mr. D’Allessandro.

In reaching its decision, the lower court relied on Layman v. Continental Assurance Company, 430 Pa. 134, 242 A.2d 256 (1968), where the Supreme Court held that Pennsylvania law required the insurance company to furnish a copy of the application to the insured or the beneficiary, prior to the insured’s death, in order to preserve the insurance company’s right to use the application to contest payment. 40 P. S. Section 532.6(3). Since it is possible the beneficiary under an insurance policy, and not the insured, could be the owner of the policy, it would be reasonable to require the insurance company to provide a copy of any statement made by the insured to the beneficiary, in order to preserve the insurance company’s right to utilize the statement to contest payment.

However, in the instant case, Mrs. D’Allessandro had no knowledge that the policy existed until following her husband’s death. Obviously, she was unaware of any potential claim that she had until following his death.

Layman, supra, is inapposite since Mrs. D’Allessandro did not become “the person making the claim” until her husband’s death.

If Durham had supplied a copy of the application to Mrs. D’Allessandro prior to her husband’s death, she would not have been able to preserve her right to recover since notification of Durham of the misstatements would have resulted in a cancellation of the policy. Her husband, a party to the contract, had the opportunity to inform his wife about the policy, if he so desired.

The language in the policy is unambiguous, and it is not, therefore, necessary to utilize a presumption or rule of construction in order to interpret the policy. Poole v. Great American Insurance Company, 407 Pa. 652, 182 A.2d 509 (1962), Restatement of the Law of Contracts, Section 236, Blocker v. Aetna Casualty and Surety Company, 232 Pa.Super. 111, 332 A.2d 476 (1975).

The parties have stipulated that Mrs. D’Allessandro is “the person making the claim”. The parties also stipulated that Mrs. D’Allessandro was furnished a copy of the application in question once she became entitled to make a claim.

Durham has clearly complied with the relevant provision of the policy.

Furthermore, since Durham was induced to enter into the contract by means of the material misrepresentations of Mr. D’Allessandro, there was no validity of assent between the parties at the inception of the contract. Therefore, the policy in question is voidable at the option of Durham without any interpretation of any provision of the policy itself. College Watercolor Group, Inc. v. William H. Newbauer, Inc., 468 Pa. 103, 360 A.2d 200 (1976), Iacoponi v. Plisko, 412 Pa. 576, 195 A.2d 362 (1963), DeJoseph v. Zambelli, 392 Pa. 24, 139 A.2d 644 (1958), Greenwood v. Kadoich, 239 Pa.Super. 372, 357 A.2d 604 (1976), Stringert and Bowers, Inc. v. On-Line Systems, Inc., 236 Pa.Super. 196, 345 A.2d 194 (1975).

Mr. D’Allessandro not only misrepresented his medical history and physical condition, he also, as stipulated below, intentionally and fraudulently concealed the identity of the numerous doctors who had attended him during the five previous years. As a result, Durham had no opportunity to investigate his medical history and condition.

A person guilty of intentional fraud should not be permitted to benefit from his misrepresentations, to the detriment of an innocent party.

Accordingly, I would reverse the order of the court below, grant summary judgment to Durham, and order Durham to pay to the Estate of John D’Allessandro the sum of $400.65, representing a refund of all premiums paid by Mr. D’Allessandro prior to his death.

      . On the application for insurance Mr. D’Allessandro answered “No” to the following two questions:
      “2. Have you or any of your dependents to be insured ever had heart trouble, high blood pressure, chest pains, albumin or sugar in urine, tuberculosis, cancer, tumor, or ulcers, or any other health impairments?
      “3. During the past five years have you or any of your dependents to be insured consulted a physician or other practitioner, been hospitalized or had a surgical operation?”

      . § 532.6 Standard policy provisions
      No policy of group life insurance shall be delivered in this State unless it contains in substance the following provisions, or provisions which in the opinion of the Insurance Commissioner are more favorable to the persons insured, or at least as favorable to the persons insured and more favorable to the policyholder:
      (3) A provision that a copy of the application, if any, of the policyholder shall be attached to the policy when issued, that all statements made by the policyholder or by the persons insured shall be deemed representations and not warranties, and that no statement made by any person insured shall be used in any contest unless a copy of the instrument containing the statement is or has been furnished to such person or to his beneficiary.

      . In the instant case the policy was delivered in Missouri and therefore, the requirements of the Act of May 11, 1949, P.L. 1210, § 6, as amended, do not apply.

      . § 532.6 Standard policy provisions
      No policy of group life insurance shall be delivered in this State unless it contains in substance the following provisions, or provisions which in the opinion of the Insurance Commissioner are more favorable to the persons insured, or at least as favorable to the persons insured and more favorable to the policyholder:
      (3) A provision that a copy of the application, if any, of the policyholder shall be attached to the policy when issued, that all statements made by the policyholder or by the persons insured shall be deemed representations and not warranties, and that no statement made by any person insured shall be used in any contest unless a copy of the instrument containing the statement is or has been furnished to such person or to his beneficiary.

      . Since the parties stipulated that the policy in question was delivered in the State of Missouri and also stipulated that the D’Allessandros were residents of Pennsylvania, the court is initially confronted with a question of conflict of laws. The record from the court below would not enable the reviewing court to adequately answer this question. However, after reviewing the laws of both Missouri and Pennsylvania, this issue need not be addressed since the above-cited provision of Pennsylvania law was satisfied by the receipt of a copy of the application by Mr. D’Allessandro prior to his death. There is no provision of Missouri law which, as a minimum, would require Durham to furnish a copy of the application to either Mr. or Mrs. D’Allessandro in order to preserve its right to use the application to contest its obligation to pay.
      The only section of Missouri law which may be relevant to this matter is Section 376.580 Missouri Statutes Annotated which states: “No representation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable,

        As stated above, the parties have stipulated that “... the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable.”


author: WICKERSHAM, Judge: LIPEZ, Judge,

text:
    436 A.2d 675
    Stephen M. JOHNSON, a minor by his guardian Millard Johnson, Jr. and Millard Johnson, Jr. and Ann Johnson in their own right, Appellants v. SEARS, ROEBUCK AND COMPANY and John Herron, Marshall A. Bernstein, Esquire and Jules N. Mazis, Esquire, Participating Parties.
    Superior Court of Pennsylvania.
    Argued March 18, 1980.
    Filed Oct. 30, 1981.
    Petition for Allowance of Appeal Denied Jan. 18, 1982.

      James M. McMaster, Newtown, for appellants.
    Daniel J. Ryan, Philadelphia, submitted a brief on behalf of Sears and Herron, appellees.
    Thomas N. O’Neill, Jr., Philadelphia, for participating parties.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   WICKERSHAM, Judge:

This is an appeal from an order denying appellants’ “Petition to Modify Minor’s Compromise Settlement” regarding the amount and manner of payment of attorneys’ fees. We reverse the order of the lower court and remand the case for proceedings consistent with this opinion.

On January 14, 1974, Stephen M. Johnson, (“the minor”) was struck by a truck owned by defendant Sears, Roebuck and Company and driven by defendant John Herron. Stephen Johnson, age eleven, sustained severe personal injuries and was rendered comatose as a result of the accident.

Suit was filed on December 19, 1975 on behalf of the minor and his parents, Ann and Millard Johnson, Jr. The case was prepared and listed for trial June 12, 1978. Six days prior thereto, a settlement conference was held by the lower court, and settlement was reached and approved by order of the lower court on June 29, 1978.

The court below summarized the settlement as follows: The agreement provided for an immediate payment to Petitioners of $100,000.00; immediate payment of counsel fees of $500,000.00 and the purchase by the Defendants of a lifetime annuity on behalf of the minor with the following provisions: (1) yearly payments of $23,000.00 for the life of the minor, (2) the yearly amount payable under the annuity will increase by three (3%) percent per annum compounded, (3) payments of the amounts due under the annuity will be made monthly, (4) payments under the annuity will continue for a guaranteed period of twenty years, and (5) the annuity will be insured by a company acceptable to the Plaintiffs.

Lower ct. op. at 2.

Soon after the settlement agreement was signed, the Johnsons became dissatisfied with it. They discharged their attorneys, Marshall Bernstein and Jules Mazis, (appellees in the instant action), and retained their present counsel, James M. McMaster. Appellant’s new counsel filed a “Petition to Modify Minor’s Compromise Settlement” which was denied on March 30, 1979 after a two day hearing before the court which had originally approved the settlement. This appeal followed the denial of that petition. The Johnsons now allege that the amount received by their former attorneys and the method of payment should be modified. The thrust of their argument is that Mr. Bernstein and Mr. Mazis used an improper method to determine the gross value of the settlement on which to base their attorneys’ fees. We agree.

The lower court set forth the computation method used by appellees as follows:

In computing the gross settlement value on which to base their one-third contingent fee, Respondents first reduced the minor’s right to receive the life annuity payments to its present value. The projected payments ($23,-000.00 per annum with a three (3%) percent yearly increment) were multiplied by the anticipated life expectancy of the minor (50 years as computed by an actuary and based on Standard Life Expectancy Tables) resulting in a total of $2,594,170.00. Then, this amount was reduced to present value by six (6%) percent simple interest resulting in a figure of $1,050,422.00. Respondents then added the value of the cash payments, $600,000.00, to the present value of the annuity, $1,050,422.00, to arrive at a figure of $1,650,422.00, which represented the total of all present benefits under the settlement agreement. Respondents then set their contingent fee at $500,000.00, less than one-third of the total value of the settlement.

Lower ct. op. at 5.

The problem we perceive with this computation method is that it provides for the attorneys’ contingency fee to be based on the total amount of the Johnsons’ future possible payments despite the fact that the Johnsons may never receive that amount. After the expiration of the twenty year period for which the annuity payment is guaranteed, appellants only have a right to receive an annuity payment each year that their son actually lives. Nevertheless, Mr. Bernstein and Mr. Mazis avoided the inherent risk in the annuity settlement and based their attorneys’ fees on the entire amount the Johnsons would receive if their son lived the normal life expectancy of a fifteen-year-old boy.

Mr. Bernstein and Mr. Mazis argue that there is substantial precedent in support of their method for computing the value of the right to receive future payments. See Frankel v. United States, 321 F.Supp. 1331 (E.D.Pa.1970), aff’d. sub nom., Frankel v. Heym, 465 F.2d 1226 (3rd Cir. 1972); Vizzini v. Ford Motor Company, 72 F.R.D. 132 (E.D.Pa.1976), aff’d, 569 F.2d 767 (3rd Cir. 1977); Brodie v. Philadelphia Transportation Company, 415 Pa. 296, 203 A.2d 657 (1964). Although the same formula was used in these actions to compute damages, whether or not the victim actually lived his or her entire life expectancy became irrelevant because the present value of the future projected loss was immediately paid to the victim or the estate. The victims’ attorneys’ fees were, therefore, based on amounts actually received by their clients. Mr. Bernstein’s and Mr. Mazis’ reliance on these cases is misplaced since their attorneys’ fees were based on a sum that the Johnsons may never receive.

Mr. Bernstein and Mr. Mazis also argue that the amount of $500,000 was not intended for unrestricted purposes but was created specifically for the purpose of paying the attorneys’ fees. We do not agree. This amount was clearly arrived at by taking one-third of the total value of the award which was calculated by adding the total of the lump sums awarded ($600,000) to the value of the annuity payments as calculated by Mr. Bernstein and Mr. Mazis. This indicates that the $500,000 was part of the settlement award’s gross value. See lower ct. op. at 5.

The Johnsons urge us to find that the most equitable method of determining the amount due their former attorneys is to award them one-third of the lump sum payments plus one-third of any periodic payments if and when received. They cite a Workmen’s Compensation case, Greco v. Vulcan Smithing Coal Co., 19 Pa.D & C 61 (1932), as the precedent for an attorney receiving his contingent fee as a percentage of each future periodic payment to his client. While this method of payment may have been equitable, it was also mandated by statute. Section 501 of the Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1021. Considering the nature of annuity settlements and the fact that they may be paid out over an extensive period of time, we believe this method of payment can be both unwieldly and impractical. But see Sedgwick and Judge, The Use of Annuities in Settlement of Personal Injury Cases, Insurance Counsel Journal, Vol. XLI, No. 4 (October, 1974) 584.

We find that the most equitable method of valuing an annuity for the purpose of determining the amount of attorneys’ fees due is by the cost of the annuity. See Lilly, Alternatives to Lump Sum Payments in Personal Injury Cases, Insurance Counsel Journal, Vol. XLIV, No. 2 (April, 1977) 243, 246. The cost of the annuity takes into account the possibility that the minor may live longer or shorter than his anticipated life expectancy and is priced accordingly. While we agree with Mr. Bernstein’s and Mr. Mazis’ contention that the lifetime annuity has a value beyond the twenty year guarantee, its cost adequately reflects this value.

The dissent contends that the cost of the annuity is an improper basis for determining the value of the settlement. It then attempts to justify the computation method used by Mr. Bernstein and Mr. Mazis by stating that “[t]he present value of these benefits has long been determined by actuarial tables.” This of course is an incorrect statement since the method is only used when, as previously noted, the sum is actually received by the victim and not when, as here, the sum may never be received because it’s based on a contingency.

The dissent attempts to further justify the amount of attorneys’ fees by noting that the settlement award adequately met the minor’s needs and “that the counsel fees were both fair and reasonable in the light of the amount of settlement.” While we agree with the first part of the dissent’s finding, we cannot agree with the second. The computation method employed by Mr. Bernstein and Mr. Mazis results in the settlement award being worth more to them than to their clients. We cannot condone this. While we note that the value of the settlement may, in certain cases, exceed the cost of the annuity, we find this situation preferable to the above.

This case is remanded for a hearing to determine the cost of the annuity. The cost of the annuity is then to be added to the lump sum award of $600,000. The lower court is directed to order payment of one-third of this total amount to Mr. Bernstein and Mr. Mazis from the original $600,000 lump sum award. Mr. Bernstein and Mr. Mazis are then to be reimbursed for costs incurred in preparing the suit on behalf of the minor and his parents for trial.

Order of the lower court is reversed, and the case is remanded for proceedings consistent with this opinion.

LIPEZ, J., files a dissenting statement.

LIPEZ, Judge,

dissenting:

In my judgment, the majority’s use of the cost of the life annuity is an improper basis for determination of the value of the minor’s settlement. Its cost is simply a bargaining matter between the defendant and an insurance company, with which the minor is not involved. His sole concern is the benefits it will produce for him during his lifetime; and it is these benefits, resulting from counsel’s effort, which serve as the basis for counsel fees. The present value of these benefits has long been determined by actuarial tables. That is precisely what was done and nothing in this record impugns their use herein.

The trial judge, who was involved in the settlement and its approval, heard the petition to modify. He found that the settlement proposal, including the counsel fees, had been carefully explained to the Johnsons; that it adequately met the needs of the minor; that the counsel fees were both fair and reasonable in the light of the amount of settlement, and therefore denied the petition. His findings come within the wide discretionary area confided to the trial judge in approving counsel fees. It is not our function, absent an abuse of that discretion, to substitute our judgment. No such abuse has been shown here.

I therefore dissent.

      . This court received word from both counsel that Stephen M. Johnson died on April 28th, 1980. This information did not affect the reasoning or outcome of our opinion.

      . We note that Philadelphia Civil Rule 165 was not complied with since there was no physician’s report concerning the mental and physical condition attached to the Petition to Compromise Minor’s Settlement. Mr. Bernstein and Mr. Mazis claim that the noncompliance is insignificant because the lower court was fully aware of the nature and magnitude of the minor’s injuries. Mr. Bernstein and Mr. Mazis based their attorneys’ fees on a computation using the normal life expectancy of a healthy fifteen-year-old boy. But see Frankel v. United States, 321 F.Supp. 1331, 1341-1342 (E.D.Pa.1970), aff’d. sub nom., Frankel v. Heym, 465 F.2d 1226 (3rd Cir. 1972) (A neurosurgeon who had conducted studies on the life expectancies of brain-injured, comatose individuals testified that such head injuries would shorten the life expectancy of the individuals).


author: Opinion by WICKERSHAM, Judge:

text:
    436 A.2d 679
    COMMONWEALTH of Pennsylvania, v. Judith GETSON, Appellant.
    Superior Court of Pennsylvania.
    Argued April 21, 1981.
    Filed Oct. 30, 1981.

      Elliott R. Feldman, Philadelphia, for appellant.
    Richard J. Tompkins, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Opinion by WICKERSHAM, Judge:

On January 11, 1980, appellant, Judith Getson, was found guilty by District Justice Robert P. Johnson of speeding, 75 Pa.C.S. § 3362(a)(3), and was ordered to pay a fine and costs in the amount of $86.00. Appellant paid the fine and costs and appealed the conviction to the Court of Common Pleas of Montgomery County. On July 24, 1980, a trial de novo was held in this matter before the Honorable Lawrence A. Brown. At the end of the trial, Judge Brown found appellant guilty of the summary offense, dismissed the appeal, and entered judgment of sentence on the docket. Appellant was sentenced to pay the costs of prosecution, having already paid $86.00 at the district justice level. Appellant took this appeal.

We agree with the Commonwealth that there is no indication in the record that appellant made any post-verdict motions in accordance with Pa.R.Crim.P. 1123, Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981), nor does the record show that the trial court complied with the requirements of Rule 1123(c) that defendant be advised, after verdict, of her right to file post-verdict motions and the consequences of her failure to so file. The lower court’s only actions were to find appellant guilty and to enter judgment of sentence on the docket. Under these circumstances, we conclude that appellant did not knowingly and intelligently waive her right to file post-verdict motions, and, accordingly, we remand this case to the court below to allow appellant to file those motions nunc pro tunc. Commonwealth v. Williams, 290 Pa.Super. 158, 434 A.2d 179 (1981); Commonwealth v. Koch, supra.

Judgment of sentence vacated and the cause remanded for ' proceedings consonant with this opinion.

      . See 75 Pa.C.S. § 3362(c), § 6502(a).

      . The order from which appellant took this appeal is the judgment of sentence. Appellant presents the issue on appeal as follows:

        Is the legislature’s approval and authorization of stopwatches as authorized mechanical speed timing devices unconstitutional, as a denial of due process of law, in that the significant and substantial inaccuracies which are inherent in the methodology utilized by police departments for timing of vehicular speed by the use of stopwatches result in the conviction of innocent parties, and in an unfairly excessive accumulation of penalty points for properly convicted parties?
      Brief for Appellant at (ii).

      . The Pennsylvania Rules of Criminal Procedure govern actions for the enforcement of the penal laws in all courts including courts not of record. Pa.R.Crim.P. 1(a), 3(g). Penal laws include all statutes “which establish, create or define crimes or offenses including any ordinances which may provide for imprisonment upon conviction or upon failure to pay a fine or penalty.” Pa.R.Crim.P. 3(1); Commonwealth v. Koch, 288 Pa.Super. 290, 294, 431 A.2d 1052, 1054-1055 (1981). Since a violation of any provision of the Vehicle Code is designated a summary offense unless the violation is otherwise declared to be a misdemeanor or felony, 75 Pa.C.S. § 6502(a), and since section 6504 of the Code provides for imprisonment upon a defendant’s failure to pay any fine and costs, we conclude that Pa.R.Crim.P. 1123 is applicable to de novo proceedings involving violations of the Vehicle Code.


author: BROSKY, Judge:

text:
    436 A.2d 680
    COMMONWEALTH of Pennsylvania v. Allen LOMAX, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed Oct. 30, 1981.

      Jack J. Bulkin, Philadelphia, for appellant.
    Cynthia Severinsen, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   BROSKY, Judge:

Appellant was convicted by a jury of involuntary manslaughter on May 1, 1979. Post-verdict motions were filed and denied. Lomax was sentenced to serve two and one-half to five years imprisonment. This appeal followed.

Lomax contends that the trial court erred in reaching its decision. First, he states that the evidence submitted to the trial court was insufficient to establish his guilt beyond a reasonable doubt. Second, he asserts the Commonwealth failed to sustain its burden of proving causation beyond a reasonable doubt. Third, he proclaims the court instructed the jury improperly. And, fourth, he claims the trial court erred in allowing a sequestered Commonwealth witness to testify in rebuttal after that witness was excused as a Commonwealth witness. We affirm the decision of the trial court.

The standard of review with regard to the sufficiency of the evidence is whether viewing the evidence and all reasonable inference arising therefrom, in a light most favorable to the Commonwealth, it was sufficient to establish appellant’s guilt beyond a reasonable doubt. Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521 (1979); Commonwealth v. Posavek, 278 Pa.Super. 265, 420 A.2d 532 (1980). When the evidence in the instant case is so viewed, it discloses that Tameka Lomax, the infant child of appellant and Elizabeth Anderson, was born on December 4, 1973. She was two months premature and after her birth remained in the hospital until February of 1974. The record indicates that after Tameka came home, she was beaten by the appellant on numerous occasions, often with significant force. Appellant, apparently also strapped her to her crib with his belt on one occasion and on others pushed her head into her pillow.

On March 19, 1974, Ms. Anderson noticed her child was having difficulty breathing and, accordingly, she told Lomax she wanted to take Tameka to the hospital. He told Ms. Anderson nothing was wrong. Then, Ms. Anderson went into another room to wash diapers and suddenly heard sounds of something hitting against something else coming from the room occupied by appellant and the baby. Then, Lomax called to Ms. Anderson that the baby was not breathing.

Ms. Anderson rushed to her child, cleared Tameka’s nose of food coming out of it, and began to supply her child with air by mouth to mouth resuscitation. Tameka, however, did not respond. A rescue squad was called and it transported the child to a hospital. The baby never regained consciousness. The members of the rescue squad testified that appellant repeatedly stated while they attended to the child:

“What have I done? What have I done?”

Ms. Anderson did not report Lomax to the police. She asserted that appellant instructed her to tell the police that the baby fell. She stated at trial that she followed Lomax’s instructions because she was afraid he would beat her. However, Ms. Anderson states the appellant eventually admitted to her that he was responsible for the baby’s death and Ms. Anderson then reported the incident to the police.

A medical examiner examined Tameka’s body shortly after her death. He stated at trial that the child died because of injuries sustained by her which resulted from multiple, serious head injuries. The wounds evidently were sufficiently numerous that the examiner determined that they were caused over a period of time within the recent past and resulted from beatings. The examiner stated it was a combination of these injuries, not just those which were most recent which caused the child to die.

Ms. Anderson also stated at trial that Lomax beat her child on numerous occasions after she first came home from the hospital. Furthermore, while Ms. Anderson only heard two or three hitting sounds on the day the child died, it is reasonable to infer that the child was hit more often and, if not, that the child was beaten on a regular basis by the appellant. There is no evidence that Ms. Anderson or anyone else ever beat Tameka. The evidence that Lomax repeatedly beat Tameka was corroborated at trial through the testimony of a neighbor, Ms. Stratham.

Appellant states that this evidence was insufficient to prove his guilt and specifically he claims the evidence was insufficient to prove he caused the child’s death. First we are satisfied that the evidence that the multiple injuries caused the death and that Lomax repeatedly beat Tameka was sufficient to prove causation. Commonwealth v. Howard, 265 Pa.Super. 535, 537, fn. 1, 402 A.2d 674, 676 fn. 1 (1979). And, second, we are convinced that there was sufficient evidence to establish appellant’s guilty beyond a reasonable doubt. Commonwealth v. Turner, 491 Pa. 620, 421 A.2d 1057 (1980).

Next, appellant asserts the trial court erred in its charge to the jury. First, he remonstrates that the court improperly refused to instruct the jury that the Commonwealth must establish a causal link between appellant’s acts and Tameka’s death by medical testimony. This claim is clearly contradicted by the record. We agree with the trial court when it said:

Defense counsel has alleged that the trial judge erred in refusing defense counsel’s requested points for charge regarding causation. Defense counsel has cited case law for the proposition that the Commonwealth must prove every essential element of a crime beyond a reasonable doubt. He goes on to state that since causation is an essential element to a charge of homicide, causation must be proven beyond a reasonable doubt. This is undisputed, and was covered in the charge to the jury as follows: (N.T. Pp. 30, 81, 32, 35, 36-37, Vol. 4)

At Page 30:

“In order to find the defendant guilty of murder of the third degree, you must find that all of the following elements have been established beyond a reasonable doubt: One, that the defendant or an accomplice caused the death of another person. That is, you must find that the death of the victim would not have occurred but for the defendant’s or an accomplice’s act.”

At Page 31:

“If, after considering all of the evidence, you find that the Commonwealth has established each of these elements beyond a reasonable doubt, you may find the defendant guilty of murder of the third degree.”

At Page 32:

“Voluntary manslaughter exists where there was an intentional act which caused the death...”

At Page 35:

“I will define involuntary manslaughter: In order to find the defendant guilty of involuntary manslaughter, you must find that all of the following elements have been established beyond a reasonable doubt: One, that the defendant unintentionally caused the death of another person. Two, that the death was a direct result of the defendant’s act.
The defendant is not liable unless his act was the direct cause of death. However, there may be more than one direct cause of death.”

At Pages 36-37:

“If, after considering all of the evidence you find that the Commonwealth has established each of these elements beyond a reasonable doubt, then you should find the defendant guilty of involuntary manslaughter.
If you do not so find, you should find the defendant not guilty of involuntary manslaughter.”
The record clearly shows that the trial judge’s charge fully instructed the jurors that the Commonwealth had to prove the element of causation beyond a reasonable doubt.

(Trial court opinion at pages 17-18). We are satisfied that the trial court properly instructed the jury as to the Commonwealth’s burden of proof. Commonwealth v. Newkirk, 455 Pa. 559, 317 A.2d 216 (1974); Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977) (Commonwealth has burden of proof of proving beyond a reasonable doubt each element of the crime for which defendant is charged).

Appellant also claims the trial court should have charged the jury that it must find the appellant’s actions were the direct cause of Tameka’s death and that no intervening cause existed. However, as the trial court found, there was no evidence that an intervening cause existed. Commonwealth v. Green, 477 Pa. 170, 175, 383 A.2d 877, 880 (1978) (Commonwealth is “not required to prove that a ‘hypothetical supervening event’ did not take place [citation omitted]). The trial court is not required to give instructions regarding the possible existence of an intervening cause when there is no evidence which indicates that such a cause existed. See Commonwealth v. Nesbitt, 276 Pa.Super. 1, 419 A.2d 64 (1980); Commonwealth v. Knox, 273 Pa.Super. 563, 417 A.2d 1192 (1980); Commonwealth v. Reiff, 489 Pa. 12, 413 A.2d 672 (1980).

Then, Lomax contends that the trial court erred in its use of the word “accomplice” in its charge to the jury regarding murder. However, the word “accomplice” was never used in the trial court’s instructions to the jury on involuntary manslaughter. Keeping in mind that the appellant was convicted of involuntary manslaughter alone and not first, second or third degree murder, where the term accomplice was used, we are unable to see how the appellant was harmed. We find that any error which existed in instructing the jury in the general murder charge using the term “accomplice” was cured when the trial court instructed the jury regarding involuntary manslaughter and did not use the word “accomplice.” Thus, any possible error was harmless.

Appellant’s ultimate contention is that: “THE TRIAL COURT ERRED IN ALLOWING THE COMMONWEALTH’S MAIN WITNESS WHO HAD BEEN PREVIOUSLY SEQUESTERED TO TESTIFY IN REBUTTAL AFTER SHE HAD BEEN EXCUSED AS A COMMONWEALTH WITNESS.” (Appellant’s brief, page 21.) Specifically, appellant states that Ms. Anderson should not have been permitted to testify in rebuttal to evidence submitted by Geneva Gunther, who testified that Ms. Anderson told her Tameka’s death was caused by a fall. Gunther also stated Tameka had fallen from bed once while she was baby-sitting. The error appellant asserts results because a sequestration order was in effect concerning Ms. Anderson who allegedly remained in the courtroom while Ms. Gunther testified. However, appellant indicates that Ms. Anderson may not have been in the courtroom during Ms. Gunther’s testimony. (Appellant’s brief, page 22.) The trial court found that Ms. Anderson was not in the courtroom at that time, though there is evidence that she was in the courtroom at other times, in violation of the sequestration order.

First, we note, apart from the sequestration issues, that the use of rebuttal in this situation, though Ms. Anderson had repeatedly stated she never struck her child a severe blow and that her child had not fallen from her bed, was proper. Ms. Anderson was given the opportunity to rebut because Ms. Gunther alleged specific circumstances when and where Ms. Anderson had supposedly abused her child. Ms. Anderson testified in response to each particular situation. Under these circumstances, the trial court did not abuse its discretion in allowing rebuttal testimony. Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980); Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978); Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973).

Second, we recognize that a trial court has broad discretion to remedy any possible violation of a sequestration order. Commonwealth v. Smith, 464 Pa. 314, 346 A.2d 757 (1975); Commonwealth v. Martin, 277 Pa.Super. 323, 419 A.2d 793 (1980). We hold that the trial court did not abuse its discretion in the instant case, both because Ms. Anderson was apparently not present during the testimony sought to be rebutted and because the rebuttal itself was properly submitted.

Accordingly, the judgment of sentence of the trial court is affirmed.

      . There is evidence that Ms. Anderson struck her child. However, she stated that at most she only tapped her child and never struck her a blow which could have resulted in any severe injury. She said she previously reported to the police that she had struck her child more severely but only said so to protect her husband. We see no reason to question the trial court’s finding that Ms. Anderson had not beaten her child.

      . Appellant directs our attention to Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971), where our Supreme Court held that proof of causation was not established beyond a reasonable doubt where a physician was only able to state “with a reasonable degree of medical certainty” that a heart attack which killed a woman was caused by the physical and emotional stress associated with a purse snatching. There, the court said because the physician was unable to state that he was convinced beyond a reasonable doubt that the defendant caused the death that the Commonwealth had not satisfied its burden to prove causation. See also Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968) (holding proof of causation must be established beyond a reasonable doubt).
      Here, the medical examiner stated:
      In my opinion, the number of injuries, the distribution of the injuries on the body, the fact there are injuries that represent a fresh series of traumatic situations as well as injuries that represent at least two other episodes of trauma in the past, clearly indicate that this child has been beaten repeatedly and in my opinion, the injuries sustained caused the death resulting from a beating.
      Clearly, the medical testimony in the instant case is stronger than in Commonwealth v. Embry, supra. We hold this evidence, when coupled with appellant’s expression of guilt to the rescue squad members and the corroborating evidence supplied by Ms. Anderson’s neighbor, was sufficient to prove causation.
      Lomax also contends that the child’s death resulted from falls from her bed. However, the medical testimony indicated Tameka’s death was caused by repeated beatings. Ms. Anderson severely damaged the appellant’s credibility when she testified that appellant told her to say the child died as a result of a fall. Furthermore, Ms. Anderson’s version of the facts surrounding the child’s death were corroborated by her neighbor, at least, to the extent of her contention that Lomax repeatedly beat the child.
      Appellant claims the child was killed by aspiration, not beating, and therefore causation was not proved beyond a reasonable doubt. He claims the aspiration was caused by Ms. Anderson’s feeding the child baby food liver. However, the medical testimony indicated that the aspiration was not the cause of death. Even if we were to consider aspiration, the immediate cause of death, we are satisfied that the chain of causation was properly proved. Commonwealth v. Green, 477 Pa. 170, 383 A.2d 877 (1978); Commonwealth v. Robin

        son, 468 Pa. 575, 364 A.2d 665 (1978); Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973); Commonwealth v. Carn, 449 Pa. 228, 296 A. 2d 753 (1972).

      . Medical testimony unequivocally stated that aspiration was not the cause of death (see footnote 1). Thus, we believe the trial court acted properly in holding there was no evidence that an intervening cause existed.

      . It is also apparent that Ms. Anderson clearly undertook no actions which would have fatally harmed her child. As such, there is no concemable way that the jury could have convicted Lomax as an accomplice, where Ms. Anderson could not have been convicted as a principal.