author: BECK, Judge: POPOVICH, Judge:

text:
    514 A.2d 612
    COMMONWEALTH of Pennsylvania v. James MALONE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 9, 1986.
    Filed Aug. 29, 1986.

      Daniel-Paul Alva, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   BECK, Judge:

This is an appeal from judgment of sentence. Appellant was convicted at a bench trial of aggravated assault and other offenses. He received a mandatory minimum 5 to 10 year sentence pursuant to 42 Pa.C.S.A. 9712. Appellant raises four issues. We reverse and remand for a new trial.

Appellant claims first that the court abused its discretion in limiting the substantive testimony of his wife. We agree.

At trial, appellant objected to the proposed testimony of a Commonwealth witness on the ground that he was not given the witness’ name or address prior to trial. He asserted this objection on the basis of Pa.R.Crim.P. 305(B)(2)(a), which provides that the court may “order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items ...: (a) the names and addresses of eyewitnesses.”

The court sustained appellant’s objection and excluded the testimony of the proposed witness. The court relied on Rule 305(E), which leaves to a court’s discretion the remedy for noncompliance with this Rule.

During appellant’s presentation of his defense, he attempted to have his wife testify as to her recollection of the events on the night in question. The District Attorney objected to the proposed testimony on the ground that he was not furnished the name of this witness prior to trial. The DA relied on Rule 305(C), which is similar to Rule 305(B). The court reasoned in excluding the testimony that “what’s good for the goose is good for the gander.” The court was presented with the option of continuing the case so that the District Attorney could interview the wife, but the court refused to select this option.

Although a trial court is vested with broad discretion concerning the admission of evidence, this discretion is abused if the judgment exercised is manifestly unreasonable. See Commonwealth v. Lane, 492 Pa. 544, 424 A.2d 1325 (1981). We conclude that the court abused its discretion in limiting the testimony of appellant’s wife.

First, the use of a “tit for tat” approach has an immediate seductive appeal of symmetry that is ultimately illusory. It does little to further the truth-finding function of the court, especially when, as here, highly relevant and probative evidence is excluded. It is not fundamentally fair under these facts to say what’s good for the goose is good for the gander. The goose may merely deservedly lose a case while the gander may undeservedly serve at least five years in prison.

Secondly, the court abused its discretion by misapplying Pa.R.Crim.P. 305(C). The Rule applies only if the Commonwealth files a motion for pre-trial discovery and alleges the materiality of the information requested to the preparation of its case. Such a motion was never filed by the Commonwealth. That appellant received a favorable ruling based upon an equally erroneous application of the Rule should be irrelevant. The record plainly indicates that the remedy was more drastic from appellant’s point of view than was appropriate under the circumstances. The Commonwealth evidence was certainly only corroborative, while appellant’s proferred evidence may indeed have warranted an acquittal.

The Rules are to be interpreted in a way that provides for the just determination of a proceeding. Pa.R.Crim.P. 2. In view of appellant’s version of the alleged crime and of the potential application of 42 Pa.C.S.A. 9712, the remedy imposed by the court was too severe. A continuance or recess during which appellant’s wife could have been interviewed would have been reasonable. Accordingly, it was an abuse of discretion to exclude this highly probative and relevant evidence. As such, a new trial should be granted.

Judgment of sentence reversed. Remanded for a new trial. Jurisdiction is not retained.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge:

I respectfully dissent. The majority concludes that the trial court abused its discretion in excluding the testimony of appellant’s wife concerning appellant’s self-defense claim and, as a result, holds that appellant should be granted a new trial. For the following reason, I believe that a new trial should not be granted.

Even in the event that the trial court abused its discretion in refusing to admit appellant’s wife’s testimony, the error is harmless if it did not contribute to the verdict. The Court in Commonwealth v. Story, 476 Pa. 391, 404, 383 A.2d 155, 162 (1978), determined that error will be held harmless in a criminal trial only if the reviewing court determines that this error did not affect the verdict beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 826-27, 17 L.Ed.2d 705 (1967). A finding of harmless error may be made if (1) the prejudice from the erroneously admitted evidence is de minimis, (2) the erroneously admitted evidence is merely cumulative of other properly admitted evidence, (3) it is substantially similar in kind and incriminating details to other indisputable, independently obtained, and properly admitted evidence, or (4) if the Commonwealth’s evidence is overwhelming and, by comparison, the prejudice of the error is insignificant. Commonwealth v. Brady, 338 Pa.Super. 137, 141, 487 A.2d 891, 893 (1985). Commonwealth v. Story, supra, 476 Pa. at 408-417, 383 A.2d at 164-68.

After a careful study of the record, I am of the view that the evidence of appellant’s guilt is overwhelming and, by comparison, the prejudice of the error is insignificant. Id. At trial, during cross-examination, appellant admitted that no one had struck him. He also admitted that he had time to walk over to the car and explain the situation to his wife who, on appellant’s orders, reached into the glove compartment and handed him a loaded gun. Appellant made no effort to get into the car and leave the scene. Instead, appellant took the gun and fired two shots at James McCole. (N.T. 59, 66-70, 78-80; Opinion, p. 4).

While on the stand, appellant had ample opportunity both during direct examination and cross-examination to present his version of what happened, including his self-defense claim, to the trial court. In this case, the trial court did not believe appellant’s testimony concerning the events that occurred and found appellant’s actions to be unjustified. Appellant’s wife’s mere corroboration of appellant’s testimony would not have been enough to establish before the lower court that appellant acted in self-defense. All of the points that appellant claims his wife would have testified to had she been permitted could have easily been brought out by appellant during his testimony, since he was also present on the scene and aware of what was going on during these particular events. (Appellant’s Brief, p. 11). Thus, appellant has failed to prove that his wife’s testimony would have advanced his case or that the lack of it affected the verdict.

Therefore, I find that the evidence is overwhelming and, by comparison, the prejudice of the error is insignificant. Commonwealth v. Brady, supra, 338 Pa.Superior Ct. 137 at p. 141, 487 A.2d 891 at p. 893. Commonwealth v. Story, supra, 476 Pa. at 408-417, 383 A.2d at 164-68. In this case, a new trial is not warranted.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    514 A.2d 614
    CANNON BROTHERS, INC., Appellant, v. John D’AGOSTINO and Jacqueline M. D’Agostino, his wife, Appellees.
    Superior Court of Pennsylvania.
    Argued March 13, 1986.
    Filed Sept. 2, 1986.

      James R. Flick, Media, for appellant.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

This is an appeal from a final decree denying injunctive relief and dismissing a complaint in equity. The learned trial judge held that the plaintiff had failed to establish legal title to or an easement over the disputed tract of land and that, in any event, plaintiff had failed to show an actual or threatened injury. Our review of the record discloses that the plaintiff was able to prove a right of way over the disputed piece of land but that it failed to prove any interference with its right to use the easement for its intended purpose. Therefore, we affirm the decree denying injunctive relief.

Cannon Brothers, Inc., the plaintiff-appellant, and John and Jacqueline D’Agostino, the defendant-appellees, own lands in Ridley Township, Delaware County. Their respective tracts were at one time part of a subdivision owned by a common grantor. According to an unrecorded plan, prepared by the prior, common grantor, the lands now owned by plaintiff and defendants were separated by a stone and gravel right of way known as Stony Brook Drive. This driveway formed the eastern boundary of the lot owned by the D’Agostinos. On the other side of the driveway, to the east thereof, was the land which has now been developed by Cannon Brothers, Inc. The driveway was situated in such a manner that the adjoining lots of Cannon and D’Agostino were not rectangular but irregular. Thus, Stony Brook Drive lay diagonally across the southeast corner of the land owned by the D’Agostinos.

Cannon’s land holdings were not limited to the single lot situated along the western side of Stony Brook Drive and opposite the D’Agostino lot. The developer had purchased numerous additional lots from the original subdivision and had constructed apartment buildings thereon. Prior to 1975, when the D’Agostinos acquired title to their lot, the developer had paved the surface of Stony Brook Drive in such a way that it was no longer identifiable as a right of way. Rather, it had become part of a larger area which the developer had paved and set aside for parking. This parking area was adjacent to the foot of an embankment which existed along and formed a part of the eastern portion of the D’Agostinos lot. The southern line of the parking lot was a continuation of the southern boundary of the D’Agostino lot. Concrete parking blocks had been placed by the developer along the southern edge of the parking lot. These blocks prevented traffic from reaching the unpaved continuation of Stony Brook Drive to the south.

When the defendant-appellees took possession in 1975, a dispute arose regarding their right to use the parking lot for free access to the rear of the residence erected on their single lot. The dispute initially was focused upon a triangular area, measuring 28’ by 11’ by 40’, which was a part of the former Stony Brook Drive and which, if added to appellees’ lot, would have made it approximately rectangular in shape. The D’Agostinos regularly traversed this disputed segment of the parking lot, which had formerly been a part of Stony Brook Drive, to gain access to the rear entrance of their home. They also parked their automobiles in this area and used it to receive deliveries of heating oil. Tenants of the developer’s apartment building also used the disputed area to park their vehicles. Because of parked cars, the D’Agostinos frequently were deprived of access to the rear of their home. They were also unable to park on the triangular corner of the lot which they claimed as a part of their property. Therefore, the D’Agostinos placed four concrete parking blocks on the disputed area along what had been the eastern side of Stony Brook Drive. These blocks interfered with the ability of tenants of the apartment building to park on Stony Brook Drive. The D’Agostinos also parked their vehicles within the area between the blocks and their embankment. When the developer discovered the presence of the blocks on the parking lot, he demanded that appellees remove them and thereafter refrain from parking their automobiles on appellant’s parking lot. The D’Agostinos complied by removing the blocks. They then excavated the embankment at the rear of their lot where to this date they continue to park their automobiles. Unwilling to relinquish their claim to the disputed area, however, the D’Agostinos later replaced the concrete parking blocks. These blocks again prevented the parking of cars along the disputed southwestern corner of the paved parking lot. However, they did not impede passage to the unpaved continuation of Stony Brook Drive. The developer again demanded that the blocks be removed, but this time the D’Agostinos refused.

The developer then brought an action in equity for an injunction which would have compelled the removal of the blocks and would have enjoined the use of the space by the D’Agostinos. The D’Agostinos responded to the complaint by filing a pro se answer which, although generally denying the developer’s ownership of the disputed portion of the parking lot, failed to deny specifically several averments of the complaint as required by Pa.R.C.P. 1029(a). As a result, the court held, the factual allegations of the complaint were deemed to have been admitted.

An injunction is an extraordinary remedy which should be granted only with great caution. School District of City of Pittsburgh v. Zebra, 15 Pa.Cmwlth. 203, 208, 325 A.2d 330, 333 (1974). See: Rick v. Cramp, 357 Pa. 83, 91, 53 A.2d 84, 88-89 (1947); Commonwealth v. National Gettysburg Battlefield Tower, Inc., 8 Pa.Cmwlth. 231, 248, 302 A.2d 886, 894, aff'd, 454 Pa. 193, 311 A.2d 588 (1973). See also: 15 Std.Pa.Prac.2d § 83:3. A court of equity will grant an injunction only where the rights and equity of the plaintiff are clear and free from doubt and the harm sought to be remedied is great and irreparable. See: Robinson v. Philadelphia, 400 Pa. 80, 89, 161 A.2d 1, 6 (1960); McDonald v. Noga, 393 Pa. 309, 312-313, 141 A.2d 842, 844 (1958); Williams v. Bridy, 391 Pa. 1, 7, 136 A.2d 832, 836 (1957); Rick v. Cramp, supra 357 Pa. at 91, 53 A.2d at 88-89; Windber Borough v. Spadafora, 356 Pa. 130, 134, 51 A.2d 726, 728 (1947). See also: 18 P.L.E. Injunctions § 1. A party seeking to enjoin an invasion of his or her right in and to real property must demonstrate that he or she has a clear right to the property in question. McDonald v. Noga, supra 393 Pa. at 312, 141 A.2d at 844; Williams v. Bridy, supra. See: 15 Std.Pa.Prac.2d § 83:56. To meet this burden, the plaintiff must rely upon the strength of his or her own title or other legal right to the property, and not upon the weakness of the title or legal right asserted by the defendants. Myersdale & Salisbury Street Railway Co. v. Pennsylvania & Maryland Street Railway Co., 219 Pa. 558, 566, 69 A. 92, 94-95 (1908). See: 15 Std.Pa.Prac.2d § 83:56.

The trial court found that the developer had failed to prove title to the triangular area in dispute. Appellant’s evidence in this respect was uncertain and wholly inadequate to establish title to the bed of Stony Brook Drive. The failure of appellant’s proof of title has been discussed at length in the opinion of the trial judge and need not be repeated here. On the other hand, the evidence does establish that the appellant-developer did have an easement to use Stony Brook Drive for right of way purposes.

“A right of way is an easement which may be created by express grant.” Merrill v. Manufacturers Light and Heat Co., 409 Pa. 68, 73, 185 A.2d 573, 575 (1962) (citations omitted) (emphasis deleted). An easement may also be created by implication in the descriptive language of a deed which does not otherwise expressly grant such a right. See: Burns Manufacturing Co. v. Boehm, 467 Pa. 307, 313-314, 356 A.2d 763, 767 (1976). See also: 12A P.L.E. Easements § 31. Where title is conveyed according to a subdivision plan and the deed description defines the boundary of a lot by reference to a roadway which is not a highway or dedicated to a public use, the grantee acquires an easement by implication over it. Beechwood v. Reed, 438 Pa. 178, 181, 265 A.2d 624, 626 (1970); Jones v. Sedwick, 383 Pa. 120, 123-124, 117 A.2d 709, 711 (1955); Scoppa v. Myers, 341 Pa.Super. 61, 63, 491 A.2d 148, 149 (1985); Taylor v. Gross, 195 Pa.Super. 225, 231, 171 A.2d 613, 617 (1961); Hoover v. Frickanisce, 169 Pa.Super. 443, 446, 82 A.2d 570, 572 (1951); Tursi v. Parry, 135 Pa.Super. 285, 288-289, 5 A.2d 399, 401 (1939). In the case sub judice, the deed to the developer contained the following language:

“Together with the free and common use, right, liberty and privilege of ... Stony Brook Drive as and for a driveway, passageway and watercourse at all times hereafter forever in common with the owners, tenants and occupiers of the other lots of ground bounding thereon and entitled to the use thereof.”

The deed conveying title to appellant, moreover, refers to Stony Brook Drive as the western boundary of the land conveyed. If appellant’s grantor had the right to grant such a right of way, therefore, it seems clear that the deed to appellant contained language which was effective to convey to appellant the right to use Stony Brook Drive for right of way purposes.

Appellant’s evidence did not establish that its grantor had an easement or right of way over Stony Brook Drive which it could convey to appellant. However, the admissions contained in appellee’s answer to the complaint were such as to make up for the deficiency in appellant’s evidence. These admissions conceded that appellant had an interest in Stony Brook Drive. The right of way, moreover, was shown on the development plan prepared by the common predecessor in title many years before.

Appellant’s interest in this right of way, however, was no greater than the right of way conveyed to the D’Agostinos by their deed and chain of title. The right shared by the adjoining landowners was to use Stony Brook Drive in common for right of way purposes. To use it for other purposes, such as for a parking lot which obstructed free passage over the right of way, was not authorized. Appellees recognized this and reacted properly. Thus, they excavated the rear of their lot to provide parking space for their vehicles. They could achieve access to the rear of their lot, however, only if Stony Brook Drive remained unobstructed by parked vehicles of appellant’s tenants.

The concrete parking blocks which the D’Agostinos placed on the disputed corner of the parking lot do not obstruct the use of Stony Brook Drive for right of way purposes. These blocks serve only to prevent tenants of appellant from parking their vehicles (in spaces designated by appellant) so as to obstruct free passage over the right of way. Under these circumstances, the trial court could properly conclude, as it did, that appellant had not been harmed by appellees’ conduct. Appellant’s right to use Stony Brook Drive in common with other adjoining landowners had not been impaired. Appellant was merely prevented from continuing its flagrantly improper and unauthorized use of Stony Brook Drive as a parking lot in a way which prevented unimpeded use thereof as a right of way. See: Percy A. Brown & Co. v. Raub, 357 Pa. 271, 284, 54 A.2d 35, 42 (1947) (when an easement is held in common by several owners, one may not use it in a manner excluding the others); Dillon v. Klamut, 278 Pa.Super. 126, 134, 420 A.2d 462, 465 (1980) (use of an easement must be confined strictly to the purpose for which the easement was created). See also: Moyerman v. Glanzberg, 391 Pa. 387, 393, 138 A.2d 681, 684 (1958) quoting Kern v. Greensweig, 125 Pa.Super. 430, 436, 190 A. 182, 185 (1937) (an injunction will be denied where the plaintiff does not come into court with “clean hands”); 15 Std.Pa.Prac.2d § 83:52.

To summarize, the evidence failed to show that the appellant-developer owned the land in dispute but did demonstrate the existence of an easement over the land for right of way purposes. The cement parking blocks placed thereon by the defendant-appellees did not impede free passage over the right of way; the blocks served only to prevent the appellant-developer’s use thereof as a parking lot in a manner which prevented appellees and others from using the right of way to gain access to the rear of their land and for other legitimate purposes. Under these circumstances, the trial court’s decree denying the appellant-developer’s request for injunctive relief was correct.

Decree affirmed.

      . In addition to the claim for injunctive relief, the complaint also contained a claim for monetary damages, but this was withdrawn prior to trial.


author: ROBERTS, Judge:

text:
    514 A.2d 618
    COMMONWEALTH of Pennsylvania v. Edward O’BRIEN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 14, 1986.
    Filed Sept. 3, 1986.

      Norris E. Gelman, Philadelphia, for appellant.
    Christopher J. Serpico, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before CAVANAUGH, WICKERSHAM and ROBERTS, JJ.
   ROBERTS, Judge:

This appeal is from a judgment of sentence entered after appellant was found guilty in non-jury trial of involuntary deviate sexual intercourse, statutory rape, indecent assault, and corruption of the morals of a minor. Appellant was sentenced to a term of imprisonment of five (5) to ten (10) years pursuant to the mandatory provisions of 42 Pa.C.S.A. § 9718 (sentences for offenses against infant persons). He now presents three challenges to the statute. First, appellant argues that § 9718 imposes a mandatory maximum rather than a mandatory minimum sentence. Consequently, as the sentence imposed relies upon the statute to set a minimum term, reversible error was committed. Second, appellant asserts that § 9718 is inapplicable here because his involuntary deviate sexual intercourse conviction merges with his statutory rape conviction and it is only the former which is punishable under the statute. Lastly, appellant maintains that § 9718 improperly casts a conclusive presumption against a convicted defendant at sentencing. Since we do not find these contentions to be meritorious, we affirm.

Appellant relies on the rule that penal statutes are to be strictly construed in favor of defendants and if ambiguity exists in interpretation, “it must be turned to defendant’s advantage.” Commonwealth v. Pemberth, 389 Pa. Super. 428, 431, 489 A.2d 235, 237 (1985). On the basis of Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959), appellant initially argues that because the sentencing provisions of § 9718 do not include the words “minimum” or “maximum,” the sentence required by the statute is ambiguous. Appellant contends that this alleged lack of specificity requires that the lesser punishment be applied. We disagree.

Unlike the sentencing statute construed in Glover, § 9718 clearly provides that a mandatory minimum sentence be imposed. The statute reads:

(a) Mandatory sentence. — A person convicted of the following offenses when the victim is under 16 years of age shall be sentenced to a mandatory term of imprisonment as follows:
18 Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated assault) — not less than two years.
18 Pa.C.S. § 3121 (relating to rape) — not less than five years.
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse) — not less than five years.

The words “not less than” used in the statute unambiguously connote a minimum term of imprisonment. It strains all notions of common sense to suggest that “not less than” can reasonably be interpreted as meaning “maximum.” Under the present facts, if such construction was followed, the statute would effectively provide for a sentence of “not less than a maximum of five years.” This nonsensical application would simultaneously command a sentence of at least and of at most five years. We refuse to so adulterate the efforts of our Legislature.

Additionally, construing § 9718 as imposing a mandatory minimum sentence comports with a reading of the entire statute. Subsection (b) of § 9718 provides that “[p]arole shall not be granted until the minimum term of imprisonment has been served.” Use of the phrase “minimum term” directly refers to the mandatory sentence of “not less than (two or five) years” contained in subsection (a). This reference further supports our conclusion that the Legislature clearly has demonstrated its desire to impose a mandatory minimum sentence for certain offenses against infant persons.

Accordingly, giving effect to the plain and unambiguous mandate of the Legislature, we hold that the trial court properly construed § 9718 as requiring the imposition of a mandatory minimum sentence of five years for those defendants convicted of involuntary deviate sexual intercourse.

Appellant next asserts that for the purposes of sentencing his involuntary deviate sexual intercourse conviction, an offense included in the mandatory sentencing provisions of § 9718, should merge with his statutory rape conviction, an offense not subject to mandatory sentencing. Under such construction, appellant maintains that he should be sentenced for the offense carrying a non-mandatory sentence. This claim is unavailing. As stated by this court in Commonwealth v. Sayko, “[w]hen crimes merge for sentencing purposes, the one for which a defendant may be sentenced is the one to which the legislature has attached the greatest penalty.” 333 Pa.Super. 265, 271, 482 A.2d, 559, 563 (1984) (allocatur granted Feb. 20, 1985) citing Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980); see also Commonwealth v. Adams, 350 Pa.Super. 506, 518, 504 A.2d 1264, 1270 (1986) (en banc). Here, as involuntary deviate sexual intercourse, a felony of the first degree, carries a greater sentence than statutory rape, a felony of the second degree, the court properly sentenced appellant on his involuntary deviate sexual intercourse conviction. Section 9718 clearly is applicable in the present situation.

Appellant’s final claim is that under § 9718, the Commonwealth is impermissibly relieved of its burden of showing that the acts committed by a defendant merit a mandatory sentence with no parole. This contention has, at least implicitly, been rejected by the courts of the Commonwealth. As noted by this court in Commonwealth v. Cooke, “the creation of mandatory minimum sentences which remove judicial sentencing discretion in non-capital cases is not a constitutional violation.” 342 Pa.Super. 58, 70, 492 A.2d 63, 70 (1985) (holding mandatory sentencing for offenses committed with firearms, 42 Pa.C.S.A. § 9712, to be constitutional) as cited in Commonwealth v. Wildermuth, 347 Pa.Super. 640, 647, 501 A.2d 258, 262 (1985) (§ 9718 held not to be impermissible interference by legislature with sentencing powers of trial courts). Accordingly, if mandatory sentencing permissibly relieves trial courts from affording individualized sentencing consideration to non-capital defendants, similarly, there exists no burden on the Commonwealth to justify the mandatory sentences imposed on non-capital defendants. We must give effect to the Legislature’s desire to remove individualized sentencing consideration, to the extent of a mandatory minimum term of imprisonment, for certain criminal offenders. Accord Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985) aff'd sub nom. McMillan v. Pennsylvania, — U.S. —, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (mandatory minimum sentencing upheld under 42 Pa.C.S.A. § 9712); Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067 (1985) (mandatory minimum sentencing upheld under 42 Pa.C.S.A. § 9714, sentencing for prior conviction of serious violent felony).

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3123.

      . 18 Pa.C.S.A. § 3122.

      . 18 Pa.C.S.A. § 3126.

      . 18 Pa.C.S.A. § 6301.


author: OLSZEWSKI, Judge:

text:
    514 A.2d 621
    COMMONWEALTH of Pennsylvania v. Clinton E. GRAY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 10, 1986.
    Filed Sept. 5, 1986.

      Jeremiah F. Kane, Assistant Public Defender, Yardley, for appellant.
    Thomas J. Wagner, Assistant District Attorney, Phoenix-ville, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This appeal is from the judgment of sentence of ninety days’ incarceration and $1,000 fine imposed by the Court of Common Pleas of Chester County upon appellant’s conviction of driving while his license was suspended. Post-verdict motions were filed and denied. Appellant raises one issue for our consideration: whether the trial court erred in finding that the Commonwealth had proved beyond a reasonable doubt that the appellant had received notice of suspension of his operator’s license. We find that the trial court was not in error and, for the reasons stated below, we affirm.

On May 23, 1983, the Department of Transportation, Bureau of Traffic Safety Operations (“Bureau”), mailed an official notice to appellant telling him that as of October 6, 1983, his license would be suspended for one year for an alcohol test refusal. Bureau records also indicated that appellant’s license had been suspended as of April 6, 1983, for a six-month period (running until October 6, 1983). On December 3,1983, appellant was stopped by the Coatesville, Pennsylvania, police for a motor vehicle violation and was discovered to be driving while his license was under suspension.

Appellant argues that the mere fact that a notice of suspension had been mailed did not prove beyond a reasonable doubt that appellant had received actual notice of his suspension. See Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975). It is appellant’s contention that he never received notice that his license was suspended for one year, effective October 6, 1983. Absent this notice, conviction under 75 Pa.Cons.Stat.Ann. Sec. 1543(b) is not possible. See id.

In Commonwealth v. Kane, the Pennsylvania Supreme Court held that evidence of mailing of notice is admissible evidence, but, standing alone, is not sufficient evidence to establish an element of a crime beyond a reasonable doubt. Id. We note that in Kane, evidence established that appellant’s address typed on the notice of suspension was not the appellant’s correct address. Therefore, it was more likely that the notice was mailed but not received. Id.

When notice is mailed to the appellant and additional evidence exists indicating that appellant received notice of suspension, then the evidence can be sufficient to prove actual notice. Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982). In Burkett, notice was mailed to the appellant; appellant had returned his license to the Bureau; and appellant attempted to conceal his actions by removing himself from the driver’s seat when his vehicle was pulled over by the police. This combination was held to be sufficient to prove actual notice. Id.

It is our concern in these cases that a driver convicted of driving while his license is suspended had actual notice of the suspension. We are concerned with the reliability of notice by mail, as there generally is no proof of actual receipt. Before us now on appeal is the lower court holding that appellant had received notice of his suspension. The lower court has heard this case de novo. Therefore, our scope of review is to determine whether the findings of fact are supported by competent evidence and to correct conclusions of law erroneously made. Commonwealth v. Gussey, 319 Pa.Super. 398, 466 A.2d 219 (1983). We will not disturb the lower court action on appeal absent a manifest abuse of discretion. Id.

In the case at bar, we find that the trial court properly held that appellant had actual notice of his license suspension. First, the Bureau mailed a notice of suspension to appellant at his correct address. Secondly, appellant had surrendered his license to the Bureau on April 6, 1983, in response to a notice of suspension of his license mailed to him at his correct address. Since appellant received actual notice of his April 1983 suspension by mail, it is likely that a second notice of suspension mailed to the same address was also received. Finally, appellant did not have his driver’s license when he was stopped for a violation on December 3, 1983. This evidence indicates that appellant was aware that he was not allowed to drive. If appellant had no notice of a one-year suspension beginning on October 6, 1983, it is likely he would have sought the return of his license from the Bureau. Since appellant was driving without his license in December 1983, it indicates that appellant was aware of his legal inability to drive at that time. This additional evidence tending to prove appellant’s actual notice of his license suspension, along with the evidence that a notice of suspension was mailed to appellant at his correct address, indicates that appellant received notice of his license suspension. Therefore, we are satisfied that the trial court properly found appellant guilty of a violation of 75 Pa.Cons. Stat.Ann. Sec. 1543(b). Accordingly, we affirm.

Judgment of sentence affirmed.

      . 75 Pa.Cons.Stat.Ann. Sec. 1543(b) (Purdon 1986).

      . It is curious that the Bureau does not send a notice as important as a notice of suspension of driving privileges by certified or registered mail, where a return receipt can be used to show actual notice.


author: CERCONE, Judge: JOHNSON, Judge,

text:
    514 A.2d 623
    COMMONWEALTH of Pennsylvania v. Tyrone BOYD, Appellant.
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed Sept. 5, 1986.

      Andrew J. Jackson, Philadelphia, for appellant.
    Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

Appellant, Tyrone Boyd, was convicted in a jury trial of robbery, conspiracy and burglary for his role in an incident on December 22, 1982, in which he and two others brutally beat and robbed a 94 year old woman as she sat in her living room. Appellant advanced an alibi defense at trial.

At trial the appellant presented the testimony of Carl Lee to establish his alibi defense. Lee testified that around the time that the crimes in question occurred he saw the appellant at the local pizza parlor in the company of a young woman. On cross-examination the witness identified the girl as “Saskie,” and he acknowledged that she was outside the courtroom. Then, after a break at the conclusion of Lee’s testimony, appellant’s counsel requested an in-chambers conference with the trial judge. He then advised the court and the prosecutor that his second alibi witness, Saskie Jones, had decided not to testify, either out of fear or an inability to remember events in question. When both the Commonwealth and defense counsel tried to find Jones in the hallway outside the courtroom, she had already left. Neither side pursued her further. Moreover, trial counsel stated that even if she had remained, he would not have presented her as a witness for appellant.

In his direct appeal from judgment of sentence, appellant alleged, inter alia, that his trial counsel was ineffective for failing to enforce a subpoena issued to Saskie Jones to compel her testimony, or, alternatively, for failing to object to the missing witness charge, which the Commonwealth had requested subsequent to the in-chambers conference regarding Saskie Jones’ departure.

By a Memorandum Opinion, at No. 02883 Philadelphia, 1983, this court remanded the case to the trial court for an evidentiary hearing on appellant’s ineffectiveness claims because it concluded that there may be arguable merit to them. This court considered the record as inadequate to resolve whether the course chosen by trial counsel in not compelling Saskie Jones to appear on appellant’s behalf nor in failing to object to the missing witness charge had some reasonable basis designed to effectuate appellant’s interest. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Prior counsel testified at the evidentiary hearing that he had encountered difficulties in finding Jones, but that on the day before she was to testify, he went to her residence to get her. He took her to court and she was prepared to testify. Then, after Carl Lee’s testimony for appellant, she expressed her unwillingness to be a witness because she was unsure as to the actual date that she had been with appellant in the pizza parlor. Trial counsel, according to his testimony at the evidentiary hearing, immediately concluded that her testimony would be counterproductive to the alibi defense.

Moreover, it was revealed at the evidentiary hearing over appellant’s objection that the Commonwealth was prepared to offer strong impeachment evidence against Carl Lee to the effect that if Jones did testify on appellant’s behalf, a witness would be called to prove that Lee had threatened Jones if she did not support the alibi in her testimony. In light of this information, it was not ineffective for counsel to let Jones go and to rest his defense on Carl Lee’s testimony alone. At best, Jones’ testimony would have been equivocal; at worst, it would have given rise to the impeachment of Lee.

However, the issue regarding counsel’s failure to object at trial to the missing witness charge is more troublesome. From the hearing testimony, it is clear that trial counsel did object in chambers to such a charge. However, no objection was lodged at trial either prior to or after the charge was given. Thus, unless the charge was proper as given and unless the Commonwealth was entitled to the benefit of the negative inference against appellant, counsel would necessarily be ineffective for failing to object to the charge at trial. Commonwealth v. Rineer, 310 Pa.Super. 241, 456 A.2d 591 (1983).

Generally,

[W]hen a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person’s testimony would not be merely cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference it would have been unfavorable, (citations omitted.)

Commonwealth v. Moore, 453 Pa. 302, 305, 309 A.2d 569, 570 (1973).

In other words, where an uncalled witness is equally available to both parties, this constitutes an exception to the missing witness rule and it would be improper to instruct in accordance therewith where such is the case. Commonwealth v. Gray, 441 Pa. 91, 271 A.2d 486 (1970).

Trial counsel for appellant stated at the evidentiary hearing that he had given Saskie Jones’ name to the Assistant District Attorney prior to trial as a potential alibi witness. Counsel also introduced her to the A.D.A. on the first day of the trial and made her available to him for purposes of obtaining a statement from her. A statement was taken from her by a Detective Schofield on that same day, which was the day before Jones was to testify. The next day, it was on cross-examination of Carl Lee by the assistant district attorney that Jones’ presence outside the courtroom was made known to the jury. These circumstances indicate to this court that, indeed, Jones was as available to the Commonwealth as to appellant and that it was error for the court to instruct on the missing witness charge. Thus, this situation does fit one of the exceptions to when the charge should be given when a witness is not called.

The Commonwealth claims that Jones cannot be considered as equally available to it since her equivocation made her an unbelievable or unpredictable witness, rendering her unavailable for purposes of the Commonwealth’s case. The Commonwealth refers us to the Disciplinary Rules, § 7-102(A)(4), (A)(6) and to the ABA Standards for Criminal Justice, the Prosecution Function 3-5.6, for the responsibility which is imposed on a lawyer that he or she not knowingly use perjured testimony or false evidence. The Commonwealth asserts that it could not be expected to offer Jones as their witness under any circumstances.

In urging this court to look into the wisdom, or lack thereof, of a decision on the part of the Commonwealth to offer Jones as part of its case, the Commonwealth is impermissibly extending the meaning of “equal availability” for purposes of the missing witness rule. Rather, our inquiry must reside in a determination of whether Jones was “peculiarly within the knowledge and reach” of defense counsel or not. Commonwealth v. Newmiller, 487 Pa. 410, 409 A.2d 834 (1979). At the least, the Commonwealth was aware of Jones and had interviewed her. It had the choice of whether it wanted to call her as a witness or not. This situation constitutes availability of the witness to the Commonwealth, which fact should not allow the Commonwealth to benefit from the negative inference inherent in the missing witness instruction.

Therefore, because the missing witness instruction was given in error, counsel is considered to be ineffective for failing to object properly to the instruction. The prejudice inherent in this failure is apparent in that the instruction went to the heart of appellant’s defense; moreover, the witness, Jones, was mentioned by Carl Lee as waiting to testify, which implanted an unfulfilled expectation in the minds of the jury.

For the aforementioned reasons, judgment of sentence is reversed. Case remanded for a new trial. Jurisdiction is relinquished.

JOHNSON, J., files a concurring opinion.

JOHNSON, Judge,

concurring:

While I agree with the result reached by the majority, I write separately because of my belief that the missing witness rule does not apply in this case since a satisfactory explanation exists as to why Appellant’s trial counsel did not call Saskie Jones as an alibi witness.

The missing witness rule and the rule’s several exceptions are capably set forth in Commonwealth v. Harley, 275 Pa.Super. 407, 418 A.2d 1354 (1980).

The missing witness rule provides that a negative inference may be drawn from the failure of a party to call a particular witness who was in his control. Commonwealth v. Gibson, 245 Pa.Super. 103, 104, 369 A.2d 314, 315 (1976). However, each of the following circumstances represents an exception to that rule:
1. The witness is so hostile or prejudiced against the party expected to call him that there is a small possibility of obtaining unbiased truth;
2. The testimony of such a witness is comparatively unimportant, cumulative, or inferior to that already presented;
3. The uncalled witness is equally available to both parties;
4. There is a satisfactory explanation as to why the party failed to call such a witness;
5. The witness is not available or not within the control of the party against whom the negative inference is desired; and,
6. The testimony of the uncalled witness is not within the scope of the natural interest of the party failing to produce him.

Id., 275 Pa.Super. at 413, 418 A.2d at 1357.

In the instant case Saskie Jones, who had been present outside the courtroom under subpoena earlier in the day, disappeared shortly before Appellant’s trial counsel planned to have her testify as an alibi witness. N.T., 7/7/83 at 263-65. Ms. Jones had been waiting outside the courtroom because the trial court had granted the prosecutor’s motion for sequestration of witnesses at the start of the trial. N.T., 7/6/83 at 30.

In my view the sudden disappearance without prodding or suggestion by defense counsel, of an alibi-witness, who had been present outside the courtroom under subpoena, provides a satisfactory explanation as to why that witness was not called. I would rely on exception number 4 under Commonwealth v. Harley, supra rather than exception number 3 to support a remand for a new trial.

      . That portion of the charge read:
      There was some talk about Saskie who was a girl who was allegedly with the defendant at Mimmo’s Pizza. And she did not appear. There is a rule in the law that if a witness should be here to testify, you may, if you wish, and there is no explanation for their absence — you may, if you wish, infer that the witness would not have testified favorably for the side that should have called her.


author: DEL SOLE, Judge:

text:
    514 A.2d 626
    COMMONWEALTH of Pennsylvania, Appellant v. Douglas Keith ROBERTS.
    Superior Court of Pennsylvania.
    Argued April 29, 1986.
    Filed Sept. 5, 1986.

      Donna Jean McClelland, Assistant District Attorney, Pittsburgh, for Com., appellant.
    Joseph R. Govi, Greensburg, for appellee.
    Before DEL SOLE, MONTEMURO and POPOVICH, JJ.
   DEL SOLE, Judge:

This is an appeal by the Commonwealth from an order suppressing the results of field sobriety tests, an intoxilyzer examination and statements made by Appellee to the police.

The facts as found by the trial court may be briefly summarized as follows.

On the evening of June 29th, 1984, a Westmoreland County park police officer observed a vehicle being operated in an erratic manner on Route 356 which is a public highway and not within the confines of the County park system. Believing the operator to be under the influence of alcohol, the park police officer radioed the Allegheny Township Police Department advising the Department that he was following a suspected drunk driver. The Township police advised the officer to pull the driver over and that the Township police would be there at once. The officer stopped the vehicle, directed the driver to turn off his engine and be prepared to provide his card to the Township police who the driver was advised would be arriving shortly. The Township police arrived and had the driver perform a sobriety test and noted a statement made by the driver. Subsequently, the driver was given an intoxilyzer test.

Appellee, the driver, was charged with two counts of Driving While Under the Influence of Alcohol; 75 Pa.C.S.A. § 3731(a)(1) and 75 Pa.C.S.A. § 3731(a)(4). Appellee moved to suppress the results of the field sobriety tests, intoxilyzer examination and statement made to the police. Following a hearing on the motion the court made findings of fact as summarized above and thereafter entered conclusions of law. The court concluded that stopping Appellee and advising him to await the arrival of the Township Police constituted an arrest. The arrest was outside the jurisdiction of the park policeman and 42 Pa.C.S.A. § 8953(a)(3) does not confer jurisdiction on the park policeman. The court determined that park police do not have jurisdiction to enforce the motor vehicle code on public highways outside of the park system and municipal police officers cannot empower park police to perform arrests they are otherwise without authority to make.

In the first instance, it is noteworthy that the Commonwealth’s appeal of a suppression order is proper as an appeal from a final order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution. Commonwealth v. Dugger, 506 Pa. 537, 546-547, 486 A.2d 382, 386 (1985). Since the certification requirement has been satisfied, we find that the Commonwealth has an absolute right of appeal to this Court to test the validity of the pre-trial suppression order.

Commonwealth v. Pelkey, 349 Pa.Super. 373, 377, 503 A.2d 414, 415-416 (1985).

With respect to the appropriate standard of appellate review of a suppression court’s ruling:

On review, our responsibility is ‘to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.’ Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975).

Commonwealth v. Hubble, 509 Pa. 497, 503, 504 A.2d 168, 171 (1986).

The Commonwealth does not contest and the record supports the factual findings of the trial court. The Commonwealth however asks:

1. Whether the stop of the Appellee’s vehicle was the equivalent of an arrest?
2. If the stop is an arrest, whether the Municipal Police Jurisdiction Act 42 Pa.C.S.A. § 8951 et seq. empowered the park police officer to effectuate an arrest?

It is the Commonwealth’s initial contention that the facts mandate the legal conclusion that Appellee was not placed under arrest by the park police officer. The Commonwealth argues the park police officer’s actions were akin to an investigatory stop.

Our Supreme Court has “defined an arrest as any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest.” Commonwealth v. Lovette, 498 Pa. 665, 671, 450 A.2d 975, 978 (1982) cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). Under all of the circumstances, we are convinced that the Appellee was under arrest prior to the arrival of the Township police. “[T]he test is not what the police intended but rather the reasonable impression conveyed to the person subjected to the seizure.” Commonwealth v. Rodriguez, 330 Pa.Super. 295, 307, 479 A.2d 558, 565 (1984). “Officers are not required to make any formal declaration of arrest or use the word ‘arrest’ ... nor to apply manual force or exercise ‘such physical restraint as to be visible to the eye’ in order to arrest a person” Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1963). Here, the park police officer stopped the vehicle, ordered the driver to turn off his engine and be prepared to provide information when additional police arrived. A driver may be found to be under arrest for driving under the influence of alcohol prior to a request that the individual submit to various tests. See Neitz v. Commonwealth Dept. of Transp., — Pa.Cmwlth. —, 506 A.2d 961, 963 (1986) (police officer who advised driver injured in automobile accident to stay still and that ambulance was on the way had exercised sufficient custody and control so as to have placed driver under arrest).

The Commonwealth next asserts that if it is determined that the park police officer had placed Appellee under arrest, the officer is empowered to do so pursuant to 42 Pa.C.S.A. § 8951 et seq., the Municipal Police Jurisdiction Act. (Act).

“The authority of a municipal police officer to act beyond the territorial limits of his primary jurisdiction is determined by the provisions of 42 Pa.C.S.A. § 8953, which became effective August 14, 1982.” Commonwealth v. Phillips, 338 Pa.Super. 274, 277, 487 A.2d 962, 963 (1985). This section provides in pertinent part:

(a) General rule. — Any duly employed municipal police officer who is within the Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions within the territorial limits of his primary jurisdiction in the following cases:
(1) Where the officer is acting pursuant to an order issued by a district magistrate whose magisterial district is located within the judicial district wherein the officer’s primary jurisdiction is situated, or where the officer is otherwise acting pursuant to the requirements of Pennsylvania Rules of Criminal Procedure, except that the service of an arrest or search warrant shall require the consent of the chief law enforcement officer, or a person authorized by him to give consent, of the organized law enforcement agency which regularly provides primary police services in the municipality wherein the warrant is to be served.
(2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.
(3) Where the officer has been requested to aid or assist any local, State or Federal law enforcement officer or otherwise has probable cause to believe that the other officer is in need of aid or assistance.
(4) Where the officer has obtained the prior consent of the chief law enforcement officer, or a person authorized by him to give consent, of the organized law enforcement agency which provides primary police services to a political subdivision which is beyond that officer’s primary jurisdiction to enter the other jurisdiction for the purpose of conducting official duties which arise from official matters within his primary jurisdiction.
(5) Where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a felony, misdemeanor, breach of the peace or other act which presents an immediate clear and present danger to persons or property.
(6) Where the officer views an offense which is a felony, or'has probable cause to believe that an offense which is a felony has been committed, and makes a reasonable effort to identify himself as a police officer.

42 Pa.C.S.A. § 8953(a).

We are mindful that “it is clear that one of the goals of the legislature in enacting the statute was to promote a cohesive working relationship among municipal police departments,” Commonwealth v. Ebersole, 342 Pa.Super. 151, 155, 492 A.2d 436, 438-439 (1985). “This statute, therefore, must be liberally construed to effect its objects and to promote justice.” Id. 342 Pa.Super. at 155, 492 A.2d at 438.

However, the power and authority to enforce the laws of the Commonwealth beyond the territorial limits of primary jurisdiction authorized by the Act concerns only duly employed municipal police officers. The question arises as to whether a park police officer is a municipal police officer. The Act defines Municipal police officer as “[a]ny natural person who is properly employed by a municipality, including a home rule municipality, as a regular full-time or part-time police officer.” 42 Pa.C.S.A. § 8951. Primary municipal police jurisdiction is set forth in 42 Pa.C.S.A. § 8952 which states:

Any duly employed municipal police officer shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office anywhere within his primary jurisdiction as to:
(1) Any offense which the officer views or otherwise has probable cause to believe was committed within his jurisdiction.
(2) Any other event that occurs within his primary jurisdiction and which reasonably requires action on the part of the police in order to preserve, protect or defend persons or property or to otherwise maintain the peace and dignity of this Commonwealth.

42 Pa.C.S.A. § 8952.

The duties of park police officers, by contrast, are set forth at 16 P.S. § 2512 which states:

It shall be the duty of the police or guards appointed to duty in any recreation places, without warrant, forthwith to arrest any offender against rules and regulations, ordained or resolved by the county commissioners, that they may detect in the commission of such offense, and to take the person so arrested forthwith before a magistrate, alderman or justice of the peace having competent jurisdiction.

16 P.S. § 2521.

Section 8953 of 42 Pa.C.S.A. therefore is inapplicable to park police officers. There is no power under 16 P.S. § 2512 of park police to make an extra-territorial arrest. When police are without authority to arrest outside their jurisdiction, and do so, the evidence seized incident to that arrest must be suppressed. Commonwealth v. Fischer, 348 Pa.Super. 418, 425-426, 502 A.2d 613, 617 (1985).

Order affirmed.

POPOVICH, J., concurs in the result.

      . In Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985), police officers from Montgomery County prepared a search warrant application for the search of an apartment in Berks County. The application was presented to a Berks County Magistrate who issued a warrant. The Montgomery County police conducted the search accompanied by police from Berks County who did not participate. On appeal, this court determined that the search violated Pa.R.Crim.P. 2004. Our Supreme Court:
      [gjranted the Commonwealth’s petition for allowance of appeal to determine the narrow issues of whether the Superior Court erred in holding that the exclusion of evidence was the required remedy for a perceived violation of Rule 2004 of the Pennsylvania Rules of Criminal Procedure ("A search warrant shall be served by a law enforcement officer.”) and whether the court erred in holding that the execution of the search warrant in the instant case violated said rule.

        Id., 507 Pa. at 399, 490 A.2d at 422.
      The Court rejected "the automatic application of the exclusionary rule to suppress evidence seized pursuant to a search which in some way violates the Pennsylvania Rules of Criminal Procedure relating to the issuance and execution of search warrants.” Id., 507 Pa. at 401, 490 A.2d at 423.
      Unlike the Court in Mason, we are not confronted with a violation of the Pennsylvania Rules of Criminal Procedure concerning searches and seizures and warrants. Nor are we concerned with a police officer to whom 42 Pa.C.S.A. § 8953 applies. Suppression of the seized evidence is the appropriate remedy in this instance.


author: POPOVICH, Judge:

text:
    514 A.2d 630
    COMMONWEALTH of Pennsylvania v. Charles Alden ROUNDS, Sr., Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1985.
    Filed Sept. 4, 1986.
    Petition for Allowance of Appeal Granted March 2,1987.

      Robert E. McBride, Erie, for appellant.
    Ernest J. DiSantis, Assistant District Attorney, Erie, for Com., appellee.

      Before BECK, POPOVICH and HANDLER , JJ.

       Judge Earl R. Handler, Senior Judge of the Court of Common Pleas of Indiana County, is sitting by designation.

   POPOVICH, Judge:

This case is on remand from the Pennsylvania Supreme Court for the disposition of Charles Alden Rounds, Sr.’s remaining allegations of error. The Supreme Court reversed the order of this panel vacating the judgment of sentence and remanding for a new trial because the alleged trial court error had, in fact, not been preserved for appellate review because of waiver. Commonwealth v. Rounds, 510 Pa. 524, 510 A.2d 348 (1986).

The facts, having already been set forth in the Supreme Court’s opinion, need not be repeated here.

The appellant properly raises for our consideration, this being the first occasion that he is represented by counsel unassociated with trial counsel (see Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977)), three issues assailing the competency of his trial counsel.

The first claim to be treated alleges that trial counsel was ineffective in failing to object to the victim testifying that he told his brother that the appellant, their father, “did sex to me.” Aside from the allegation being of the boiler-plate variety requiring dismissal (see Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981)), we note that appellate counsel’s contention that the testimony was “hearsay” in nature, requiring the lodging of an objection by prior counsel, is specious.

Traditionally, the term “hearsay” relates to and the exclusion of evidence (whether it be spoken or written) offered in court “as an assertion to show the truth of matters asserted therein, and thus rests for its value upon the credibility of the out-of-court asserter.” McCormick on Evidence, § 246 at 584 (1972). As noted in the Federal Rules of Evidence 801 (1971), the word has been defined as follows:

(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.

Stated differently, it is evidence offered in court by a witness which is based not on his own knowledge, but on what some other person has stated, and the statement is offered to show the truth of its content. Wharton’s Criminal Evidence, § 265 at 3-4 (1972).

The reason that such evidence is subject to exclusion is related to the fact that the declarant is not in court, and the safeguards of cross-examination afforded by the Fourth Amendment to the United States Constitution (to face one’s accusers) are rendered nugatory. See McCormick on Evidence, supra at 585; Wharton’s Criminal Evidence, supra at 6.

Instantly, this was not the case since the declarant, who observed the act to which he testified, was in court and subject to cross-examination. Therefore, under no interpretation of the rules of evidence can the victim’s testimony, as to what the appellant did to him, be “hearsay”. To state otherwise would be an aberration of the law.

The second assertion concerns the allegation that trial counsel was inept in not objecting to the victim testifying that “he was currently living in a foster home ... [and] that at various times in the past he had lived in other foster homes.” Similar testimony was given by another witness (a Ms. Pamela Millspaw).

This, appellate counsel argues, when coupled with the disclosure that the “victim had again been placed in a foster home as a result of the instant criminal charges,” was highly prejudicial in that the jury “might well have concluded” that the placement of the victim previously in such homes was the product of the appellant’s commission of “prior bad acts or prior crimes”.

Under the law of this jurisdiction:

“ ‘To warrant a characterization as prejudicial the testimony must convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.’ ” (Emphasis added) Commonwealth v. Starks, 484 Pa. 399, 399 A.2d 353, 357 (1979), quoting Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978) see generally Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978); Commonwealth v. Hall, 264 Pa.Super. 261, 399 A.2d 767 (1979).

Commonwealth v. Potts, 314 Pa.Super. 256, 274, 460 A.2d 1127, 1136 (1983).

We have examined the transcript of the trial, and, although the victim testified to being presently in a foster home, there was no evidence linking the victim’s foster status to the charges lodged against the appellant. Thus, we fail to discern any nexus between the challenged testimony and the purported inference flowing therefrom of prior criminal conduct on the part of the appellant prejudicing his right to a fair trial. Id.

Lastly, counsel for the appellant contends that trial counsel was less than effective for not objecting to the Commonwealth’s expert witness (Dr. Fagenholtz) opining that: “I have no reservation in saying that I’m sure [the victim] was sexually abused.”

The fact that the doctor was a specialist in pediatrics did not preclude her from offering the challenged opinion.

Under Pennsylvania law, a physician may testify as an expert in a field outside his own specialty. Arnold v. Loose, 352 F.2d 959 (3d C.1965), reh. den. (construing Pennsylvania law in an action brought under the Wrongful Death and Survival Acts). Once an expert shows some factual basis for his opinion, his testimony is admissable. Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979); Commonwealth v. Oates, 269 Pa.Super. 157, 409 A.2d 112 (1979). A physician need not have any field of specialization in order to be competent to offer expert testimony. Workmen’s Compensation Appeal Board v. Branch Motor Express, 18 Pa.Commw. 262, 334 A.2d 847 (1975).

Commonwealth v. Owens, 321 Pa.Super. 122, 127-28, 467 A.2d 1159, 1162 (1983).

At bar, Dr. Fagenholtz testified to having specifically devoted a portion of her practice to treating “sexually and physically abused children[.]” The number totalled “about a hundred a year.” She also went on to recount how she examined the victim and took a history of the patient. Thus, the witness had a factual basis for the opinion given regarding her belief that the victim had been sexually abused.

To the extent that the doctor stated that the physical evidence did not indicate abuse, she qualified this by stating that given the lapse of time between the abuse and the exam (here five months), the result is consistent under these circumstances with the other patients she has treated, i.e., “Ninety percent of the children [she has seen] have negative exams.”

Based on the preceding, we find no evidence that trial counsel was ineffective in the manner he represented the appellant. Accordingly, the relief requested is denied.

Judgment of sentence affirmed.


author: WATKINS, Judge:

text:
    514 A.2d 633
    In the Interest of Andre LaMORE, A Minor. Appeal of Andre LaMORE, A Minor.
    Superior Court of Pennsylvania.
    Submitted April 21, 1986.
    Filed Sept. 5, 1986.

      Mitchell A. Kaufman, Assistant Public Defender, Pittsburgh, for appellant.
    Before McEWEN, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This is an appeal from the Order entered October 23, 1985, in the Court of Common Pleas of Allegheny County, committing the appellant to the Youth Development Center at New Castle, Pennsylvania. Because the evidence was insufficient to support an adjudication of delinquency we reverse the trial court’s order and discharge the appellant.

A delinquency petition was filed against the appellant on September 26, 1985, charging him, along with a co-defendant, with receiving stolen property, 18 Pa.C.S.A. § 3925; unauthorized use of an auto, 18 Pa.C.S.A. § 3928; conspiracy, 18 Pa.C.S.A. § 903; and leaving the scene of an accident, 75 Pa.C.S.A. § 3745. The charges resulted from the theft of a Trans Am Pontiac automobile in the City of Pittsburgh. Appellant was previously adjudicated delinquent on September 23, 1985, of failure to adjust in an institution, however, disposition was deferred to October 23, 1985, pending a hearing on the September 26, 1985 petition. Upon dispositional hearing held on October 23, 1985, the appellant was committed to the Youth Development Center at New Castle.

On appeal, the appellant contends and the Commonwealth agrees, that there was insufficient competent evidence to support the adjudication of delinquency.

Judge Smith made appropriate reference to the Commonwealth’s burden and this court’s scope of review of the sufficiency of the evidence when she wrote in her opinion:

The Court is mindful of the requirements in juvenile proceedings which by law are to be conducted in an informal but orderly manner (42 Pa.C.S.A. § 6336), and in viewing the sufficiency of evidence to sustain an adjudication, the test enunciated by our Courts is: "... whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt ... The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence ...” Com. v. Shirey, [333 Pa.Super. 85], 481 A.2d 1314, 1343 (Pa.Super.1984). Cf. In Re Johnson, [445 Pa. 270], 284 A.2d 780 (Pa.Super.1971), and Com. v. Jones, [300 Pa.Super. 338], 446 A.2d 644 (Pa.Super.1982).

Appellant acknowledges that sufficient evidence was adduced at his delinquency hearing to support the trial court’s finding that the offense charged had been committed however, appellant contends that the evidence adduced was insufficient to establish him as the perpetrator.

The opinion of the court below, written without the aid of a hearing transcript, offers a substantially accurate account of the evidence adduced at the hearing. While the opinion reflects that the eyewitness to the'accident produced" ... a description of the driver later identified through investigation as Andre LaMore.”, the eyewitness’ testimony offered no description of the appellant.

On the record before us, only hearsay evidence, the information provided by the informant to the investigating officer, links appellant to the conduct which formed the basis for the delinquency adjudication. Therefore, the evidence was insufficient to support the adjudication. In Re: Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Commonwealth v. McNaughton, 252 Pa.Super. 302, 381 A.2d 929 (1977).

Order reversed. Appellant is discharged.


author: CERCONE, Judge:

text:
    514 A.2d 635
    Jean R. VICKODIL v. The PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION, Appellant.
    Superior Court of Pennsylvania
    Argued June 4, 1986.
    Filed Sept. 3, 1986.

      Rowley, J., dissented.
    Joseph M. Hankins, Philadelphia, for appellant.
    Lester E. Zittrain, Pittsburgh, for appellee.
    Before ROWLEY, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This case presents for our determination two narrow and clearly-defined issues: whether the Pennsylvania Insurance Guaranty Association (the Association) is obligated to pay the loss of consortium judgment entered in favor of appellee, Jean R. Vickodil, as a “covered claim” under the Pennsylvania Insurance Guaranty Association Act, 40 P.S. § 1701.101 et seq. (the Act). And, if it is, is the Association obligated to pay interest on the judgment entered against Amram Enterprises, the insured of an insolvent insurance company, beginning on the date of the judicial declaration of insolvency, or on a date ninety (90) days following therefrom. The parties submitted these issues to common pleas court in an amicable action on a case stated basis. The court determined that the Association was obligated to pay on the loss of consortium judgment as a separate claim of Mrs. Vickodil and that, also, interest should be computed from the date of the judicial declaration of insolvency of the insurer. The Association appealed.

The facts of this case are as follows: On October 31, 1979, Appellee’s husband, William J. Vickodil, Sr., was seriously injured when the pick-up truck he was operating in Beaver County, Pennsylvania, was struck by another vehicle which had been proceeding in the opposite direction and which crossed over to the wrong side of the roadway and crashed into the Vickodil vehicle. The vehicle which struck the Vickodil pick-up truck was being operated by an employee of the owner of the truck, Amram Enterprises.

The Amram vehicle was covered by bodily injury liability insurance as follows: primary coverage was by Aetna Insurance Company to limits of $100,000 per person and $300,000 per accident; first excess coverage was by Northeastern Insurance Company to $900,000 single limit as excess over the underlying Aetna coverage; and second excess coverage by Lexington Insurance Company to a $4,000,000 single limit as excess over the $1,000,000 underlying coverage provided by Aetna and Northeastern.

To recover damages arising from the accident, suit was filed on behalf of Mr. and Mrs. Vickodil against Amram Enterprises, the insured of the three companies. Mrs. Vickodil’s only claim was for loss of consortium. A jury verdict of $1,398,928.10 was rendered in favor of Mr. Vickodil against Amram Enterprises, and a separate verdict of $75,006 resulted in favor of Mrs. Vickodil on her loss of consortium claim. The verdict was reduced to judgment on April 2, 1984. That same month, Aetna paid its $100,000 primary coverage limit to the Vickodils. Lexington paid $473,934.10, which represents the amount which the total verdicts exceeded the combined $1,000,000 underlying coverage provided by Aetna and Northeastern. On June 1, 1984, Commonwealth Court declared Northeastern an insolvent insurer and ordered it liquidated and dissolved. Northeastern had never paid any of its applicable $900,000 first excess coverage limits to appellee or her husband. Proof of claim forms were submitted to the liquidators of Northeastern on behalf of the Vickodils as follows: the respective shares of the total jury verdict of $1,473,934.10 were 94.91% or $1,398,928.10 for William and $75,006 or 5.09% for Jean; thus, of the $900,000 claim under the Northeastern policy, the amount of William’s claim was $854,190 (94.91%) and Jean’s was $45,810 (5.09%).

These claims were referred to the Pennsylvania Insurance Guaranty Association for payment under the Act. The Association paid the maximum allowed under the Act of $300,000 less a $100 deductible or $299,900 to Mr. Vickodil. However, it is the refusal of the Association to pay the $45,810 claim of Jean Vickodil which is the subject of this appeal.

The Act defines “covered claim” in 40 P.S. § 1701.103(5):

(1) The association shall:
(i) Be obligated to make payment to the extent of the covered claims of an insolvent insurer existing prior to the determination of said insurer’s insolvency, and covered claims arising within thirty days after the determination of insolvency, or before the policy expiration date if less than thirty days after such determination, or before the insured replaces the policy or causes its cancellation, if he does so within thirty days of such determination; but such obligation shall include only that amount of each covered claim which is in excess of one hundred dollars ($100), and is less than three hundred thousand dollars ($300,000). In no event shall the association be obligated on a covered claim in an amount in excess of the obligation of the insolvent insurer under the policy under which the claim arises.
(ii) Be deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if that insurer had not become insolvent.
(5) (a) “Covered claim” means an unpaid claim, including a claim for unearned premiums, which arises under a property and casualty insurance policy of an insolvent insurer and is:
(i) The claim of a person who at the time of the insured event resulting in loss or liability was a resident of this Commonwealth, or
(ii) A claim arising from an insured event resulting in loss or liability to property which was permanently situated in this Commonwealth.
(c) A covered claim shall not include any amount in excess of the applicable limits of the policy under which it arises.

The Association, in support of its denial to pay for the loss of Mrs. Vickodil’s consortium claim because it is derivative of Mr. Vickodil’s and not a separate covered claim, cites the language of the underlying Northeastern policy which incorporates the policy of Aetna, which in pertinent part provided:

Bodily Injury Liability Coverage: The limit of bodily injury liability stated in the declarations as applicable to “each person” is the limit of the company’s liability for all damages, including damages for care and loss of services, because of bodily injury sustained by one person as the result of any one occurrence; but subject to the above provision respecting “each person”, the total liability of the company for all damages, including damages for care and loss of services, because of bodily injury sustained by two or more persons as the result of any one occurrence shall not exceed the limit of bodily injury liability stated in the declarations as applicable to “each occurrence”.

The Association then argues that this bodily injury liability limitation in the Aetna Policy was applicable to all damages which resulted from Mr. Vickodil’s bodily injury, including the loss of consortium claim of appellee. Thus, According to appellant, Northeastern was obligated to pay a maximum of $900,000 for all damages arising from the bodily injury to Mr. Vickodil, and then, upon Northeastern’s insolvency, the Association, according to the appellant, became liable to the extent of its statutorily mandated limit of $299,900. The Association’s contention is that the contractual obligation of $900,000 was replaced by the statutory limit of $299,900, such that the Association’s maximum obligation for both direct and derivative damages, arising out of Mr. Vickodil’s bodily injuries which include the loss of consortium claim, is $299,900, citing Smith v. Cassida, 403 Pa. 404, 169 A.2d 539 (1961) and Scattaregia v. Shin Shen Wu, 343 Pa.Super. 452, 495 A.2d 552 (1985).

Appellee counters with the fact that because her claim was covered in both the Aetna and Northeastern policies, the Association is obligated to pay her claim separately. Appellee emphasizes that a loss of consortium can be a derivative claim, yet also a separate and distinct claim, especially when the separate and distinct interests of spouses are invaded by tortious conduct which results in physical injury to one who is married. We agree with the appellee that her “right of recovery” which resulted in her verdict and judgment are unassailable under Pennsylvania law, as in all jurisdictions. However, it does not follow that her loss of consortium claim against Northeastern and now against the Association, gives rise to a separate $299,900 liability in the Association.

Contrary to appellee’s contention, we find the cases cited by appellants as controlling in this case. Smith v. Cassida, supra, involved a dispute between insureds who had obtained a judgment of $12,000 for the wife’s bodily injuries and a judgment in the husband’s favor of $12,000 for his wife’s medical care and loss of her services and their insurer. The liability policy provided limits of $10,000 for each person and $20,000 for each occurrence. ‘Each person’ was defined as to the limit of liability sustained by one person including damages for care and loss of services arising out of the bodily injury. The Supreme Court held that the insurer’s total liability to husband and wife was $10,000. “The recoverable damages, direct and consequential, are essentially due to the bodily injury of one person. They may not be broken up in order to increase the liability limit provided for. The limit of liability applies to the person injured and not to the person suffering loss.” Smith v. Cassida, supra, 403 Pa. at 407, 169 A.2d at 541. So also in Scattaregia v. Shin Shen Wu, supra, is the derivative nature of a loss of consortium claim the basis of the court’s holding that when an injured spouse’s comparative negligence reduces a spouse’s damages in proportion to that negligence, the damages awarded an uninjured spouse for loss of consortium must likewise be proportionately reduced. See also Boarts v. McCord, 354 Pa.Super. 96, 511 A.2d 204 (1986). Thus, when we are presented with a unique situation like the one in this case, we must attempt to reconcile the opposing interpretations of the nature of a loss of consortium claim, one of which is proper for one purpose, namely the right of recovery of a spouse as “separate”, and the other which is proper when a limitation of liability unites the two separate claims under the “person injured” language, as in this case.

Because the Aetna policy, as incorporated in the Northeastern policy cited above, stated $900,000, as its maximum liability for all damages, direct or derivative, arising from Mr. Vickodil’s bodily injury, it would be improper to impose on the Association a separate $299,900 liability to cover Mrs. Vickodil’s loss of consortium claim. To hold otherwise would be to ignore the Aetna policy limitation of liability language which necessarily defines the meaning of “covered claim” as it appears in the Act and would void the legislatively mandated limitation of liability of the Association as set forth in the Act.

Judgment of the trial court is reversed.

ROWLEY, J., dissents.

      . The purposes of the Act appear in 40 P.S. § 1701.102:
      (1) To provide a means for the payment of covered claims under certain property and casualty insurance policies, to avoid excessive delay in the payment of such claims, and to avoid financial loss to claimants or policyholders as a result of the insolvency of an insurer;
      (2) To assist in the detection and prevention of insurer insolvencies; and
      (3) To provide for the formulation and administration by The Pennsylvania Insurance Guaranty Association of a plan of operation necessary to effectuate the provisions of this act. 1970, Nov. 25, P.L. 716, No. 232, art. I, § 102.

      . § 1701.201(b) Powers and Duties:

      . Read herein $299,900 as the Association’s maximum liability.


author: HESTER, Judge:

text:
    514 A.2d 884
    COMMONWEALTH of Pennsylvania v. Robert FREEMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 30, 1986.
    Filed Aug. 28, 1986.

      Marc A. Arrigo, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, CERCONE and HESTER, JJ.
   HESTER, Judge:

On December 6, 1984, Gary D. Gully arrived at 1034 South 52nd Street, Philadelphia, the residence of his mother-in-law. The residence was a rooming house where several roomers shared a common kitchen and bathroom. Gully had been a resident of the house, and he was returning to pick up several metal cans which he had stored there earlier. Gully recycled cans as part-time employment.

Gully could not find the cans, and his mother-in-law could not recall seeing them. He then walked to the kitchen where appellant, Robert Freeman, and a woman were speaking. When Gully asked them if they had seen the cans, appellant became belligerent and threatened to shoot him. Appellant apparently thought that Gully was accusing him of stealing the cans.

Shortly thereafter, appellant left the kitchen and walked to his room. As Gully walked passed appellant’s room to the front door, appellant attacked him with a pipe. Gully defended himself with a martial arts kick and evaded some blows, but appellant nevertheless succeeded in striking his face with the pipe. The men then proceeded to wrestle, and Gully disarmed appellant. Shortly thereafter, the police arrived, Gully was taken to the hospital where he was treated for a broken jaw and appellant was arrested.

Appellant was charged with aggravated assault, simple assault and recklessly endangering another person. Following a jury trial, appellant was convicted of aggravated assault and simple assault. Post-verdict motions were denied, and appellant was sentenced under the Mandatory Sentencing Act to imprisonment of five to ten years. This appeal was thereafter filed from the judgment of sentence of October 30, 1985.

Appellant raises the following arguments: 1) his due process rights were violated by application of the Mandatory Sentencing Act, 42 Pa.C.S. § 9714; 2) the Mandatory Sentencing Act violates the due process clause; 3) the jury was prejudiced because the trial court denied appellant’s challenges for cause to two jurors; 4) the trial court erred in admitting the victim’s statement concerning his injury because it was the result of an illegal arrest; 5) the trial court erred in restricting cross examination of the victim on inconsistent statements; and 6) the trial court erred in denying appellant’s submitted charges on the missing witness rule, self defense and prior inconsistent statements. We shall address each of these arguments. In doing so, we affirm.

First, appellant complains that his due process rights were violated by application of the Mandatory Sentencing Act because the Commonwealth failed to give proper notice to proceed under the Act. According to appellant, this alleged failure to give proper notice took three forms: 1) there was no notice in the information which in turn affected appellant’s decision whether to plead guilty; 2) notice during pretrial was inadequate because it did not identify the prior convictions, their information numbers and dates, the sentence imposed and the trial judge; and 3) the purported notice was defective because it referred to five years maximum and ten years maximum sentence.

Section 9714(a) of the Sentencing Code provides that anyone convicted of aggravated assault by intentionally causing serious injury or by conduct in extreme indifference to human life shall be sentenced to a minimum sentence of at least five years if they had previously been convicted of a crime of violence. Section 9714(c) requires “reasonable notice of the Commonwealth’s intention to proceed under” the mandatory sentencing provision. Said notice must be given “after conviction and before sentencing.” Subsection (c) states specifically that notice is not required prior to conviction.

Here, the complaint contained a rubber stamp notice stating “mandatory sentence case.” On January 18, 1985, four months prior to trial, the Commonwealth filed and served a written notice that it was prosecuting this matter as a mandatory sentencing case. This notice informed appellant that in the event of conviction he would serve a minimum of five years and maximum of ten years imprisonment.

At trial following conviction, the prosecutor stated:

We ask bail be revoked. We also notify the defendant at this time that he has a prior conviction for aggravated assault and we will be moving under the mandatory minimum guidelines. I think notice has been sent, but we ought to notify him that Commonwealth will be proceeding. Prior aggravated assault caused serious bodily injury.

N.T., May 6, 1985, at 137-38.

On three occasions, two prior to conviction and one following conviction but prior to sentencing, the Commonwealth notified appellant of its intent to apply mandatory sentencing provisions. There is no requirement that the Commonwealth provide notice prior to trial. Therefore, appellant’s argument concerning the need for notice in the information is rejected. Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985).

Similarly, appellant’s arguments concerning the sufficiency of notice must fail. The rules do not require notice of the information number, conviction date, sentence and trial judge on the prior proceeding. The Commonwealth referred to the prior conviction for aggravated assault. Surely, appellant would recall the former proceedings and disposition. If not, he would have access to court records to acquire detailed information.

Appellant is incorrect in arguing that the written notice four months prior to trial was defective because it referred to sentence of at least five years maximum and ten years maximum. The notice states five years minimum and ten years maximum.

Next, appellant argues that the mandatory sentencing provisions violate the due process clause because the Commonwealth’s burden at sentencing is to prove the prior conviction by a preponderance of the evidence only. According to appellant, mandatory sentencing proceedings should require the heavier burden of clear and convincing evidence.

This argument was addressed by our supreme court in Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067 (1985), and Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), aff'd sub nom. McMillan v. Pennsylvania, — U.S. —, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). It was held that where the prior conviction is not an element of the later crime for which the defendant is to be sentenced, it can be proven by a preponderance of the evidence. Appellant’s prior conviction of aggravated assault was not an element of the charges here.

Appellant challenges the constitutionality of the Mandatory Sentencing Act in two more respects: 1) the burden of proof provision, 42 Pa.C.S. § 9714(c), violates the Pennsylvania Constitution and separation of powers doctrine because burden of proof is a matter for the Pennsylvania court and beyond the powers of the legislature; 2) prosecutors have unfettered discretion whether to proceed under mandatory sentencing provisions. Both of these arguments have been addressed by this court in Common wealth v. Bannister, 345 Pa.Super. 178, 497 A.2d 1362 (1985). In upholding the constitutionality of the burden of proof standard of the Act, the Bannister court relied on Commonwealth v. Wright, supra, which held that the “preponderance standard satisfies the minimum requirements of due process as employed in the legislature’s mandatory sentencing scheme.” Id., 508 Pa. at 41, 494 A.2d at 362. In further reliance on Wright, supra, the Bannister court addressed the constitutionality of the prosecutor’s unilateral power to proceed under the Act.

[Section 9712 does not] improperly delegate legislative power to the executive by giving the prosecution discretion whether to invoke the Mandatory Sentencing procedure.

Id., 345 Pa.Super. at 183, 497 A.2d at 1365.

Appellant’s two remaining arguments concerning the constitutionality of the Act are meritless. He argues first that the preponderance burden of proof shifted the burden to him and caused the improper admission of testimony from the judge who presided over the prior conviction.

The lesser standard of preponderance of the evidence does not shift the burden to the defendant to disprove his prior conviction. It simply requires less evidence of the prior offense than typically required in criminal proceedings.

Appellant objected to Judge Paul Silverstein’s testimony at sentencing on the grading of the prior conviction for aggravated assault. Appellant compares that testimony with the testimony of a juror on the ambiguity of a verdict; a juror cannot be recalled to explain a verdict.

The quarter sessions file on the prior aggravated assault conviction did not specify whether or not it was a felony in the second degree. Judge Silverstein was called to clarify the grading. This is not similar to recalling a jury to clarify its verdict. The verdict had identified the grading as a felony, but the record did not reflect that. Judge Silver-stein was called simply to testify on what his bench notes reflected on the grading. He was not a fact-finder, and he was not called to clarify an ambiguity in the verdict; he was called only to provide information not provided by the deficient record.

Appellant’s next contention is that the jury was prejudiced because the court refused to strike two prospective jurors for cause. Appellant’s request for additional strikes was also denied. Juror Rocco DiDonato had three cousins in law enforcement: a Delaware state trooper, Philadelphia detective and Philadelphia deputy sheriff. Juror Carol Lachman’s son had been beaten by a gang two years before trial, and she feared that incident would affect her impartiality.

Broad discretion is accorded the trial court in ruling on whether prospective jurors should be dismissed for cause, and absent an abuse of discretion, the trial court’s ruling will stand. Commonwealth v. Pittman, 320 Pa.Super. 166, 466 A.2d 1370 (1983); Commonwealth v. Westerfer, 308 Pa.Super. 474, 454 A.2d 633 (1982). Jurors are not expected to rid themselves of all prejudice and bias; it is only necessary that they remain objective throughout trial and return a verdict based solely on the admissible evidence. Commonwealth v. Howard, 324 Pa.Super. 443, 471 A.2d 1239 (1984). Moreover, a prospective juror who was related to a prosecutor from another county, had been the victim of a burglary and whose brother was a robbery victim was not disqualified when he had expressed with conviction his ability to be fair and impartial. Commonwealth v. Fields, 317 Pa.Super. 387, 464 A.2d 375 (1983).

DiDonato’s relationship to law enforcement officers did not affect his objectivity as he stated unequivocally that he could render a verdict based solely on the facts presented. Although Lachman was initially uncertain of her ability to remain fair, she later stated that she could consider the evidence objectively. It has been held that the initial hesitation of a prospective juror does not justify dismissal when he later disregards any prejudice and states that he could reach a verdict based on the evidence alone. Common wealth v. Howard, supra. For these reasons, we hold that the trial judge did not abuse his discretion in denying a challenge for cause to DiDonato and Lachman.

The fourth issue is whether the warrantless arrest was unlawful, thereby rendering inadmissible the victim’s statement concerning being struck by the pipe. Appellant argues that the officer who arrived at the scene had information concerning a misdemeanor investigation only. Since an arrest warrant is required for a misdemeanor not committed in the officer’s presence, appellant argues that his arrest was unlawful.

Officer Samuel Lynch was assigned to highway patrol when he received a call to proceed to the rooming house. He was informed by radio that he would be investigating a hospital case, an indication of personal injury. When Lynch and his partner arrived, they found the victim standing in the hallway outside appellant’s room. The victim’s bloody mouth and swollen face prevented him from speaking clearly-

The officers learned from Gully that he had been struck with a lead pipe wielded by appellant. This was confirmed by an eyewitness. The officers then confronted appellant in his room and arrested him.

A warrantless arrest for a felony is lawful where the arresting officers had probable cause to believe that a felony had been committed and the person arrested was the felon. Donnelly v. Pennsylvania, 424 U.S. 974, 96 S.Ct. 1477, 47 L.Ed.2d 744 (1976); Commonwealth v. Davis, 308 Pa.Super. 204, 454 A.2d 92 (1982). Conversely, a warrant-less arrest for a misdemeanor is lawful only where the offense had been committed in the presence of the arresting officer. Commonwealth v. Trefry, 249 Pa.Super. 117, 375 A.2d 786 (1977); Commonwealth v. Gallagher, 242 Pa.Super. 289, 363 A.2d 1274 (1976).

Officer Lynch had probable cause for believing that a felony had been committed: he was informed by dispatch that the victim was in need of hospital treatment, he observed the victim’s bloody and swollen face and he learned that a lead pipe was used as the weapon. The injuries were serious and correlated with aggravated assault of a felony grading. There was no error in holding the arrest to be lawful and admitting Gully’s statement.

Appellant complains that the trial court erred in sustaining the Commonwealth’s objection to his cross examination of the victim on prior inconsistent statements. According to appellant, the victim testified at the preliminary hearing that he did not see the pipe but later testified at trial that he saw the pipe.

Appellant has misconstrued the victim’s testimony at the preliminary hearing and at trial. The pertinent testimony from the preliminary hearing was ambiguous on whether the victim saw the pipe.

Q. Sir, did you have an opportunity to see this pipe?
A. (No response.)
THE COURT: You may answer the question.
THE WITNESS: Not really, no.
Q. So the fact of the matter is, sir, you didn’t see who was holding the pipe, isn’t that right?
[ASSISTANT DISTRICT ATTORNEY]: Objection. THE COURT: He can answer the question.
THE WITNESS: Yes, I saw who was holding the pipe. N.T., January 10, 1985, at 6-7.
At trial, the victim testified that he saw the pipe, and appellant’s counsel confronted him on cross examination with his preliminary hearing testimony.
Q. Now, do you remember being asked [at the preliminary hearing], sir, did you have an opportunity to see this pipe. Do you remember being asked that?
A. Yes.
Q. And do you remember saying, “Not really, no”?
A. Yes, I do remember recalling [sic] that, I did say that.
Q. And was that the truth?
A. Well, I did say that because at that time I didn’t see the pipe.
Q. No—

N.T., May 3, 1985, at 69-70.

Appellant’s counsel would not allow the witness to explain, and the court ruled that counsel was trying to isolate the statement, “Not really, no,” by interrupting the witness’ explanation. At the preliminary hearing, the victim testified that he did not “really” see the pipe but that he saw appellant wielding the pipe. It was this later statement that counsel tried to avoid at trial so that he could demonstrate that the victim’s trial testimony concerning seeing the pipe was inconsistent with his preliminary hearing statement, “Not really, no.”

We agree with the trial court’s assessment that the preliminary hearing testimony was not inconsistent. At most, it was ambiguous, and the victim was properly given an opportunity to explain at trial. See Commonwealth v. Marino, 213 Pa.Super. 88, 245 A.2d 868 (1968), affirmed 435 Pa. 245, 255 A.2d 911 (1969), for a discussion of the use of a portion of prior statements for impeachment.

Finally, appellant argues that the trial court erred in denying jury charges on the missing witness rule, self-defense and prior inconsistent statements. Appellant requested the missing witness charge because four eyewitnesses were not called by the Commonwealth, and they were allegedly in the exclusive control of the Commonwealth.

The missing witness rule provides that a negative inference may arise from the failure of a party to call a witness who was in his exclusive control. Commonwealth v. Rohach, 344 Pa.Super. 229, 496 A.2d 768 (1985); Commonwealth v. Harley, 275 Pa.Super. 407, 418 A.2d 1354 (1980). The rule should not be applied, however, where there is a satisfactory explanation why the witness was not called. Rohach, supra; Harley, supra.

There was evidence that these witnesses would have provided cumulative evidence only; therefore, there was a reasonable explanation for the Commonwealth’s decision not to call them. Moreover, as they were eyewitnesses and appellant admits to being at the scene, these witnesses were presumably discoverable by him.

A charge on justification was also properly denied. Appellant did not raise a defense of justification. He denied holding and swinging a lead pipe. His explanation was that the victim rushed into his room, kicked him and, while running from the room, struck his head on the door frame. This was not an allegation of self-defense; therefore, a charge thereon would have been inconsonant with the evidence.

Finally, we reject appellant’s argument that the court erred in denying his charge on prior inconsistent statements. We held above that the victim did not give a prior inconsistent statement at the preliminary hearing; therefore, we hold that the charge thereon was properly denied.

Judgment of sentence affirmed.