text:
    575 A.2d 593
    COMMONWEALTH of Pennsylvania v. Denise BLAIR, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 26, 1990.
    Filed May 14, 1990.

      Michael J. Rudinski, Williamsport, for appellant.
    Kenneth A. Osokow, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before ROWLEY, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence. After a jury trial, appellant, Denise Blair, was convicted of driving under the influence of alcohol, resisting arrest, three counts of disorderly conduct, and accident involving death or personal injury (failure to stop at the scene of an accident). Appellant was also found guilty of four summary offenses of harassment. Appellant was sentenced to make restitution, pay numerous fines, and serve an aggregate of sentences at a state correctional institution of not less than six months to not more than two and one-half years. Appellant’s post-trial motions and motion to modify sentence were denied. She calls upon us to determine the following issues: (1) whether there was sufficient evidence for a jury to find her guilty beyond a reasonable doubt of driving under the influence of alcohol; (2) whether the suppression court erred in not suppressing all evidence obtained after police officers entered her residence; (3) whether the court erred in allowing the Commonwealth to establish the basis for the police officer’s entry into Ms. Blair’s residence by hearsay evidence; (4) whether the court erred in not suppressing a video tape recorded while she was in custody; (5) whether a mistrial should have been granted because, during his testimony, a police officer referred to Ms. Blair’s silence after her arrest; and (6) whether her sentence was too harsh.

At approximately 2038 hours on June 17, 1988, appellant drove a Bayerische Motoren Werke automobile (BMW) into the rear of another automobile. Occupants of both automobiles were injured and both vehicles were damaged. Witnesses observed Ms. Blair at the scene in her BMW and described her as looking dazed and not responding to their statements. Appellant drove away without waiting for the police to arrive. A witness obtained the BMW’s plate number and informed the police.

The BMW was registered to a Steven Blair at 228 Southern Avenue in South Williamsport, Pennsylvania. Officer Kuhns and other officers arrived at that address and noticed the BMW at the rear of the property. It was damaged. Officer Kuhns was admitted to the residence by a neighbor. Almost immediately, he observed appellant. She was bleeding from the lip and chin, there was a strong to moderate odor of alcohol emanating from her, and her eyes were glassy. Officer Kuhns asked her several times whether she needed medical assistance but she did not respond. He informed her of the implied consent law.

Officer Kuhns had no doubt that appellant was the driver of the BMW. Sergeant Jett arrived and Ms. Blair was handcuffed. She had difficulty standing and both officers had to escort her to a patrol car. On the way to the patrol car, appellant became violent. She kicked, fought, and resisted all efforts of the officers. She called Sergeant Jett a “nigger,” used obscenities and made sexual comments to the officers. Upon being placed in the patrol car, she began kicking the windows. The police officers left after making sure that Ms. Blair’s children were cared for.

Sergeant Jett drove appellant to the Williamsport Hospital, where she managed to open the car door, tumble out, and run part way across the parking lot before he was able to apprehend and restrain her.

Inside the hospital, appellant continued her diatribe of obscenities and racial remarks. She refused a blood alcohol test and spat on officers, hospital personnel and a police chaplain who were attempting to help her.

After leaving the hospital, the officers had to resort to force to place appellant in the patrol car. While fighting the officers, Ms. Blair kicked Officer Henry in the side and in the face. Appellant’s ankles were handcuffed and she was placed in the cruiser.

Approximately one block away from the hospital, appellant’s spitting on the officer and the chaplain in the front seat became so persistent that they had to stop the cruiser and handcuff her arms and legs to the cage so that she was facing toward the rear and could not spit on them.

Outside City Hall, appellant calmed down; however, once inside she resumed her litany of obscenities and sexual and racial comments. Once again, her legs and wrists were shackled and she was placed in a holding cell.

Ms. Blair’s uncooperativeness made it impossible for Officer Kuhns to administer field sobriety tests. Ms. Blair was informed that her conduct in the holding cell was being recorded on videotape. Ms. Blair’s conduct was recorded for one hour. Approximately 45 minutes, into the recording she requested an attorney. The jury viewed the tape to the point prior to her request for an attorney.

ISSUE I.

Appellant argues that there was insufficient evidence for a jury to find beyond a reasonable doubt that she was driving while under the influence of alcohol. We disagree.

In evaluating a claim of sufficiency of the evidence to sustain a conviction, the evidence must be viewed in the light most favorable to the verdict winner, Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, we must determine whether the jury reasonably could have found that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 141, 555 A.2d 818, 823 (1989).

Driving under the influence is defined as follows:

(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;

75 Pa.C.S.A. § 3731(a)(1).

We have reviewed the testimony presented at trial and are satisfied that sufficient evidence was presented from which a jury could have found beyond a reasonable doubt that appellant was driving under the influence of alcohol to a degree which rendered her incapable of safe driving.

ISSUE II.

Appellant argues that all evidence obtained subsequent to the police officers’ entry into her residence should have been suppressed. We disagree.

Prior to entering Ms. Blair’s residence, the police knew that a woman had been driving an automobile which was involved in a hit and run accident. A registration check revealed that the automobile was owned by Steven Blair and was registered to an address at 228 Southern Avenue in South Williamsport. When police arrived at the Southern Avenue address, they saw the BMW automobile which had been involved in the accident. The headlights and grill were smashed, the radiator had been leaking, and the engine was still hot and steaming. An officer knocked on the door and inquired of a woman whether she was Mrs. Blair. The woman indicated she was not, so the officer inquired whether the driver of the automobile was there and whether he could talk with her. The woman stated that she was there, but “she isn’t doing too good.” (N.T., 6/24/88 at 25.) The woman at the door then invited the police officer into the residence where he observed Ms. Blair.

The issue to be decided is whether the evidence seized after the police entered 228 Southern Avenue should be suppressed because the individual authorizing the entry of the police did not have actual authority to consent to their entry. Stated another way, if a police officer is reasonably mistaken regarding the actual authority of a third party to consent to his entry into a building, should' the evidence obtained as a result of that entry be suppressed. Our search of the authorities has yielded no Pennsylvania cases which are dispositive of this issue.

The suppression court upheld the search under two theories. We decline to follow the reasoning of the suppression court since there is only slight evidence that the police entered Blair’s residence to aid an individual in distress, as required under Commonwealth v. Silo, 509 Pa. 406, 502 A.2d 173 (1985). Also, U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), is not applicable since the neighbor who provided the third-party consent to the search did not have “common authority” over Blair’s residence.

The Fourth Amendment of the Constitution of the United States embodies the concern of our society for the right of each individual to be let alone. Schneckloth v. Bustamonte, 412 U.S. 218, 236, 93 S.Ct. 204, 223, 36 L.Ed.2d 854, 872 (1973). The Fourth Amendment ensures that certain areas, particularly a home, are not subject to invasion at the caprice of investigating agencies. A citizen must be secure in knowing that his property and possessions are safe from search and seizure except in those situations where police have sufficient knowledge, probable cause, to believe that acts or things prohibited by our laws have or are occurring or where evidence of acts or things prohibited by our laws are located.

A search conducted without a warrant issued upon probable cause is per se unreasonable under the Fourth and Fourteenth Amendments, subject only to a few specifically established and well-delineated exceptions. Id. at 222, 93 S.Ct. at 209, 36 L.Ed.2d at 858. One exception is a search that is conducted pursuant to consent. Id. Both federal and state constitutions allow for a third-party consent search exception to the warrant requirement. Commonwealth v. Kean, 382 Pa.Super. 587, 602, 556 A.2d 374, 387 (1989). In the case before the bar, the neighbor (the third party) did not have actual authority to consent to the police officers entering Blair’s residence.

Third-party consent cases fall into four broad categories. Previous to this decision, cases in our Commonwealth concerned situations where: (1) the consenting party had “superior authority” to the party objecting to the search, see, Commonwealth v. Latshaw, 481 Pa. 298, 392 A.2d 1301, cert. denied, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 6596 (1978) (barn’s owner had not surrendered any indicia of her absolute control over barn where defendant’s marijuana was found pursuant to warrantless search with consent of barn’s owner); (2) the consenting party had equal or common authority to the party objecting to the search, see, Commonwealth v. Arnold, 331 Pa.Super. 345, 480 A.2d 1066 (1984), Commonwealth v. Lowery, 305 Pa.Super. 66, 451 A.2d 245 (1982), Commonwealth v. Devlin, 302 Pa.Super. 196, 448 A.2d 594 (1982); (3) the consenting party had inferior authority to the party objecting to the search, see, Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978), Commonwealth v. Netting, 315 Pa.Super. 236, 461 A.2d 1259 (1983) (third party who has neither interest nor control in a premises may not give the police valid consent to conduct a warrantless search of the premises); and (4) the last area of third-party consent cases concerns those situations where a police officer is reasonably mistaken as to the actual authority of the party consenting to his entry; stated another way, the police officer reasonably mistakes apparent authority for actual authority to consent to his entry.

The Fourth Amendment protects only “against unreasonable searches and seizures.” W. LaFave, Search and Seizure § 8.3(g), at 264 (1987). The exclusionary rule operates to deter the police from unreasonable search and seizures. Nix v. State, 621 P.2d 1347, 1349 (Alaska 1981). There can be no deterrent effect where the police believe they are acting reasonably and lawfully and it is only with hindsight that actual authority to consent to a search is missing. Id. at 1349-1350.

The Commonwealth adopts the standard enunciated in Nix:

We now align ourselves with those authorities, representing the majority view, which hold that apparent authority alone is required. We adopt this view because it is more consistent with the fourth amendment proscription of unreasonable searches and seizures than a rule requiring actual authority regardless of reasonable appearances.

Nix, supra, 621 P.2d at 1349.

In adopting the majority position, we are not allowing carte blanche consent entries into residences with the police officer being able to ratify his entry at a later date suppression hearing by merely stating that he was mistaken as to the actual authority of the consenting party. We hold that the police officer’s~reasonable mistake must be judged from an objective standard based on the totality of the circumstances. Although the police officer’s state of mind is one factor to be considered in determining the reasonability of the mistake, it is not the only factor. Moreover, the police officer’s mistake must be reasonable. In ambiguous situations, those situations which would cause a reasonable person to question the consenting party’s actual authority or if the consenting party’s assertions of authority appear unreasonable, a police officer should make further inquiries to determine the status of the consenting party. Reliance on a third party’s bald assertion in such situations could subject any search to the remedy of the exclusionary rule. Adams, supra, 439 N.Y.S.2d at 881, 422 N.E.2d at 541.

Our holdings in this case buttress a person’s reasonable expectation of privacy as to a given area or in things by continuing to deter unreasonable police searches and seizures. Although we could require police officers to secure both actual and apparent authority before entering a residence, we do not believe the police should have to institute an action for declaratory judgment to determine the authority of the third party or individual giving consent to enter or search.

Effective law enforcement must be balanced against an individual’s right to be let alone. By holding that a reasonable mistake regarding actual authority to consent does not invoke the exclusionary rule, the police are deterred from undertaking unreasonable searches and seizures. Effective law enforcement is also promoted since fortuitous findings of evidence are not excluded. In fact, where an officer reasonably believes that his search is a legitimate third-party consent search, excluding evidence seized would not further the goal of deterring illegal searches since the officer believed his search was legal. In other words, the police officer could not have been deterred since he believed that he was conducting a permissible consent search. Investigating authorities can only be deterred from making searches and seizures they know are outside the framework of a proper search and seizure.

To remove some of the ambiguity inherent in third-party consent searches, we hold that it is reasonable for police officers to assume that a person who answers the door at a residence has authority to consent to their entry into the residence. Nix, supra, 691 P.2d at 1350; see also, Lafave § 8.5(e) at 811.

We must now apply the facts of this case to the law. The police officer knew that the woman who had answered the door was not Mrs. Blair. Furthermore, he did not know the relationship of Steven Blair to this residence other than the fact that the BMW was registered at that address. The officer then inquired whether the individual who had been driving the wrecked automobile was in the house. The woman who had answered the door indicated yes. The officer then asked- to speak to the driver. There is no evidence that he asked to enter or search the residence. At this point in time, it would be reasonable for the officer to assume he was talking with someone who lived in the residence. The woman who had answered the door then took it upon herself to voluntarily usher him into the residence where the officer almost immediately saw Ms. Blair (the evidence) in plain view. We find that under these facts, the police officer was reasonably mistaken when he assumed that the woman who answered the door had actual authority to admit him. The suppression court did not err in denying appellant’s motion to suppress the evidence seized after the police officer entered her residence.

Regarding issues III, IV, and V, we adopt the reasoning of the trial court contained in issues VII, VIII, and IX of its 1925(b) statement, respectively.

ISSUE VI.

Appellant argues that the sentence of the court was too harsh.

To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R. App.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 1410, Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975), Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc), Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985); (3) whether appellant’s brief has a fatal defect, Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), Pa.R.A.P. 2119(f), Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989), Commonwealth v. Ziegler, 379 Pa.Super. 515, 550 A.2d 567 (1988), Krum, supra; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). We are inclined to find the presence of a substantial question where appellant advances a colorable argument that the trial judge’s actions were either inconsistent with the specific provisions of the Sentencing Code, or contrary to the norms which underlie the sentencing process. Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987). See also, Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988).

The issue concerning the excessiveness of sentence was properly preserved and appellant filed a timely notice of appeal; however, there is a defect in appellant’s brief. In Tuladziecki, supra, our Supreme Court stated that pursuant to Pa.R.A.P. 2119(f), an appellant who challenges the discretionary aspect of a sentence in a criminal matter must set forth in his/her brief, immediately preceding the argument on the merits, a concise statement of the reasons relied upon for the allowance of appeal with respect to the discretionary aspects of the sentence. Tuladziecki, supra, 522 A.2d at 19-20. See also, 42 Pa.C.S.A. § 9781(b). This statement allows us to determine whether we will exercise our discretion to reach the merits of the issue. Appellant’s brief does not set forth in a separate section a concise statement of the reasons relied upon for allowance of appeal. This omission ordinarily would be fatal, but the Commonwealth has failed to object to this omission because it did not file a brief; therefore, appellant’s failure to comply with this procedural requirement is waived. Krum, supra, 533 A.2d at 138.

We now reach the fourth part of our analysis: whether there is a substantial question that appellant’s sentence is not appropriate under the Sentencing Code. We must determine whether any of the sentencing judge’s actions were inconsistent with a specific provision of the Sentencing Code.

We have reviewed the transcript of sentence and the reasons stated for the judgment of sentence, and do not find a colorable argument that the sentencing judge’s actions were either inconsistent with specific provisions of the Sentencing Code or contrary to the norms which underlie the sentencing process. We, therefore, decline to exercise our discretion to hear Ms. Blair’s appeal of her sentence.

Judgment of sentence affirmed.

      . Officer Kuhns categorically stated that when he was standing at the doorway of Blair’s residence, he did not know that the neighbor was not the owner of the residence. He stated that he knew the person he was talking to was named Barbara and that the driver of the car was in the house. (Suppression transcript, 10/25/88 at 15.) It would appear that he also knew that the driver was probably injured. (S.T. at 12.) Elsewhere in the suppression transcript, Officer Kuhns states that he knew Barbara was a neighbor and that her daughter who was babysitting Ms. Blair’s children had called Barbara to come over because of Ms. Blair’s condition. (S.T. at 13-14.) After reading the transcript, we are convinced that Officer Kuhns learned of this information after he was admitted to the residence.

      . That evidence was appellant Denise Blair. She was bleeding from the chin, had a strong to moderate odor of alcohol emanating from her, and her eyes were bloodshot.

      . S.T. at 14.

      . After reviewing the facts in Silo and comparing them to the instant facts, we do not believe that the exigent circumstances which permitted a warrantless entry in Silo are present in the instant case.

      . See also, United States v. Bradley, 869 F.2d 417 (8th Cir.1989) (third party had equal, if not superior, privacy interest in property searched).

      . See also, People v. La Peluso, 239 Cal.App.2d 715, 49 Cal.Rptr. 85 (1966); In re Anthony F., 293 Md. 146, 442 A.2d 975 (1982). By illustration, equal authority fact pictures might concern one spouse giving consent to search their common residence, or situations involving roommates or occupants of a hotel room.

      . Clearly, Ms. Blair’s neighbor had inferior authority to Ms. Blair to consent to the police officer’s entry into Blair's residence.

      . In Matlock, the Supreme Court left open the question of whether a warrantless search may be upheld upon a showing that the police officers reasonably believed that the consenting party had actual authority to permit the search. Matlock, supra, 415 U.S. at 177 n. 14, 94 S.Ct. at 996 n. 14, 39 L.Ed.2d at 253 n. 14.

        United States v. Peterson, 524 F.2d 167 (4th Cir.1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976); United States v. Turbyfill, 525 F.2d 57 (8th Cir.1975); United States v. Grisby, 367 F.Supp. 900 (E.D.Ky.1973); State v. Miller, 159 N.J.Super. 552, 388 A.2d 993 (1978); People v. Gorg, 45 Cal.2d 776, 291 P.2d 469 (1955).

      . See also, People v. Adams, 53 N.Y.2d 1, 439 N.Y.S.2d 877, 422 N.E.2d 537 (1981); State v. Girdler, 138 Ariz. 482, 675 P.2d 1301 (1983).

      . For example, see the fact picture in People v. Misquez, 152 Cal.App.2d 471, 313 P.2d 206 (1957); or United States v. Harris, 534 F.2d 95 (7th Cir.1976) (officers could not have reasonably believed that third party had authority to consent to their entry into defendant's apartment).

      . VII
      WHETHER THE EVIDENCE USED AT TRIAL TO ESTABLISH THE COMMONWEALTH’S BASIS FOR ENTRY INTO THE DEFENDANT’S HOME WAS INADMISSIBLE HEARSAY?
      Defendant objects to the admission of the testimony of Officer Kuhns in which he recited the statements made to him by Barbara Snauffer. Mrs. Snauffer was present at the Blair residence when Officer Kuhns arrived. When Officer Kuhns knocked on the door, Mrs. Snauffer was the individual who answered it. Officer Kuhns testified that the following conversation ensued between Mrs. Snauffer and himself;

        "I asked if she was Denise Blair, she said no. I asked if in fact, that was the residence of Denise Blair, she said yes, it is. I asked her if Denise was here, the driver of the car, I should say, and she said yea. I said, well can I talk to her, and she said, well, she had been called over by her daughter who was babysitting.” (N.T. p. 48)
      Defendant argues that the above statements are hearsay. Hearsay is "an out-of-court statement offered to prove the truth of the matter asserted.” Commonwealth v. Cassidy, 315 Pa.Super. 429, 462 A.2d 270 (1983). In order for testimony to be considered hearsay, all three elements of the definition must be present. It must be: (1) A statement; (2) Made out-of-Court; (3) Offered for the truth of the matter asserted. There is no question that the testimony of Officer Kuhns concerns statements made by Barbara Snauffer who was out-of-court and did not testify. However, the statements were not offered for the truth of the matter asserted. Instead the statements were offered to explain the motive or reason for the conduct of the person hearing the statement. "It is well settled that an out-of-court statement offered to explain a course of conduct is not hearsay.” Commonwealth v. DeHart, 512 Pa. 235, 236, 516 A.2d 656, 666 (1986). In the present case, Officer Kuhns testimony was not offered to prove the truth of the statements made by Barbara Snauffer. The statements were offered to show the reason for the officer's entry into the Defendant’s home and, therefore, are not hearsay.
      VIII
      WHETHER, DUE TO THE DEFENDANT NOT BEING GIVEN HER MIRANDA RIGHTS, THE COURT ERRED IN NOT SUPPRESSING THE ENTIRE VIDEOTAPE RECORDING OF HER CONDUCT WHILE IN CUSTODY?
      The night of the accident, police officers placed Mrs. Blair in a holding cell. The officer set up a video recorder in the cellblock, informed Blair that the machine was on and that her actions would be recorded. The tape ran for one hour. Approximately 45 minutes into the recording, Blair asked for an attorney. The portion of the tape, up to the point where Blair made her request, was shown to the jury. Blair argues that her Motion to Suppress the entire video should have been granted for the reason that she was not advised of her Miranda rights. First of all, Defendant’s Motion to Suppress the entire video tape was not included in her Omnibus Pre-Trial Motion and was, therefore, not timely filed. However, the motion will be considered on its merits.
      For purposes of the requirement that Miranda warnings be given prior to in custody interrogation, the interrogation must reflect a measure of compulsion above and beyond that inherent in custody itself. Interrogation is defined as "express questioning and words or actions that the police should know are reasonably likely to [elicit] an incriminating response from the suspect.” Commonwealth v. [Bracey], 501 Pa. 356, 461 A.2d 775 [778 n. 6] (1983) [internal citation omitted]. The Defendant argues that the present situation is analogous to the facts in Commonwealth v. Thompson, 377 Pa. 598, 547 A.2d 1223 (1988). In Thompson, the Defendant was videotaped while undergoing a sobriety test. During the course of the test, the officers made various comments and gave instructions to the Defendant. The tape revealed that the Defendant was obscene, uncooperative and that she repeatedly commented on the absence of legal representation. The Court held that while the defendant’s statements were not as a result of direct interrogation, the Defendant was compelled by the circumstances to utter them.
      The Thompson case is consistent with the [Bracey ] decision. In Thompson, the situation went beyond mere custody. The officers made statements and gave instructions which indirectly compelled or, at least, were reasonably likely to [elicit] a response. In this case, Blair had been arrested and placed in a cellblock and was, therefore, in the custody of the police. However, the situation did not go beyond custody. The Defendant was not interrogated directly or indirectly. The police officers made no comments, and asked no questions and gave no instructions. To the contrary, with the exception of three times when officers came in briefly to inquire as to whether the Defendant was all right, none of the officers were present during videotaping. Therefore, Blair was not subjected to interrogation as that term is defined in [Bracey] and Thompson, and the portion of the videotape, up to the point where Blair requested counsel, is admissible.
      IX
      WHETHER THE COURT ERRED IN DENYING DEFENDANT’S MOTION FOR A MISTRIAL BASED ON THE COMMONWEALTH’S USE OF TESTIMONY REFERRING TO THE DEFENDANT’S SILENCE AFTER HER ARREST, NOT WITHSTANDING THE FACT THAT THE COURT GAVE A CAUTIONARY INSTRUCTION?
      During the course of the Commonwealth’s direct examination of Officer Kuhns, the following ensued:
      BY MR. HOLMES TO OFFICER KUHNS:
      Q At that point what did you do?
      A After observing her appearance and description that was given to me, I had no question at that time that she was the driver of the car and she appeared intoxicated and I placed her under arrest at that time, and advised her that I did want her to submit to the blood test and refusal to do so she would lose her licence for a year if found guilty or innocent of the charge. Again, she said absolutely nothing, no reply.
      There is no question that reference to Blair’s silence after arrest violated her constitutional right against self-incrimination and may have prejudiced her in the eyes of the jury. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, not every reference to a Defendant’s silence results in a mistrial. In order to determine whether an instruction by the judge can cure any prejudice done to the Defendant, the following test is applied: ”1) [t]he nature of the reference to the Defendant's silence; 2) [h]ow it was [elicited]; 3) [w]hether the district attorney exploited it; and 4) [t]he promptness and adequacy of the cautionary instruction.” Commonwealth v. Melvin, 378 Pa.Super. 59, 61, 548 A.2d 275, 278. After applying the above test, the Court concluded that any prejudice done to the Defendant due to the reference of her silence could be cured by an appropriate cautionary instruction.
      First, as stated, there was clearly a reference to the Defendant’s silence that violated her constitutional rights. Second, the reference to Blair’s silence was not deliberately [elicited]. The statement was in response to a broad question from the Commonwealth. Third, only a single reference to the defendant’s silence was made. Followup questions were directed to matters completely unrelated to the Defendant’s silence. Therefore, the Commonwealth did not exploit the testimony [elicited] from Officer Kuhns. Fourth, the Court gave a prompt and adequate cautionary instruction to the jury. The Court charged the jury with the same cautionary instruction this Court used in Melvin supra. In Melvin, the Superior Court stated “it is evident that the cautionary instruction of the learned trial judge was clear and direct. Our review of the record persuades us to conclude that the cautionary instruction effectively minimized the prejudice to Melvin as to render Officer Bachman’s testimony harmless.” Melvin 548 A.2d at 278. Since the cautionary instruction used in this case is the same as that used in Melvin, and was given immediately following the officers reference to Blair’s silence, there is no evidence that Blair suffered prejudice sufficient to warrant a new trial.
      Trial court opinion at 12-17.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    575 A.2d 601
    COMMONWEALTH of Pennsylvania v. Carmen WOODS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 22, 1990.
    Filed May 22, 1990.

      Mitchell S. Strutin, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an April 12, 1989 Order denying appellant’s petition for relief under the Post Conviction Hearing Act (PCHA). Appellant argues that the PCHA court erred in: (1) failing to consider the recantation affidavit of the only eyewitness to the murder for which he was convicted as evidence in support of his claim of after discovered evidence; and (2) refusing to authorize PCHA counsel to expend funds to retain the services of an investigator. Appellant, who has been represented by several different counsel during the course of this case, also argues that prior counsel were ineffective in: (1) failing to interview or present the testimony of an alleged alibi witness, Teech Burton, at trial; (2) failing to secure the attendance of the only eyewitness to the crime, Homer Lane, at the PCHA hearing; and (3) failing to object to the trial court’s jury instruction. Finally, appellant contends that he was improperly sentenced for two inchoate offenses. For the following reasons, we agree that appellant was sentenced improperly for two inchoate offenses. Accordingly, we vacate the sentence imposed for criminal conspiracy. In all other respects, we affirm the Order below.

Appellant was arrested on May 20, 1982 and charged with first degree murder, two counts of possession of the instrument of a crime, aggravated assault, and criminal conspiracy. The murder charge and one charge of possession of an instrument of a crime arose out of appellant’s shooting of Chester Laws. The remaining charges arose from appellant’s shooting at Homer Lane, the only witness to the murder, approximately two days later. On November 20, 1982, after a jury trial, appellant was found guilty of all charges. Appellant filed several post-verdict motions. Hearings on those motions were held on August 17, 1983, November 28, 1983 and December 8, 1983. On December 14, 1983, appellant’s post-verdict motions were denied, and he was sentenced. For murder appellant received a sentence of life imprisonment to run consecutive to the sentence he was then serving for burglary. Appellant was also sentenced to two consecutive terms of two-and-one-half-to-five years imprisonment for the possession of an instrument of a crime convictions, a consecutive term of five-to-ten years imprisonment for aggravated assault, and a concurrent term of five-to-ten years imprisonment for conspiracy. Appellant then appealed to this Court, and in an unpublished memorandum decision, we affirmed the judgment of sentence per curiam. See Commonwealth v. Woods, 348 Pa.Super. 636, 501 A.2d 294 (1985). Appellant’s convictions again were affirmed, per curiam by our Supreme Court. Commonwealth v. Woods, 514 Pa. 448, 525 A.2d 1204 (1987). On January 4, 1988, appellant filed a PCHA petition, alleging numerous counts of ineffectiveness of counsel. On April 12, 1989, appellant’s PCHA petition was denied. This appeal followed, and present counsel was appointed to represent appellant.

Appellant’s first argument is that the PCHA court erred when it failed to admit the recantation affidavit of Homer Lane, the chief prosecution witness at appellant’s trial. Appellant argues that Lane’s affidavit was admissible, even though it was hearsay, because it was a declaration against penal interest. We disagree.

Rule 804(b)(3) of the Federal Rules of Evidence states that the following types of statements are admissible if the declarant is unavailable:

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Id. This language has been cited with approval by this court. See Commonwealth v. Davis, 308 Pa.Super. 398, 454 A.2d 595 (1982); Commonwealth v. Warren, 250 Pa.Super. 522, 378 A.2d 1271 (1977). Furthermore, Pennsylvania courts have held that only those hearsay declarations against interest which “were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability” should be admitted into evidence. Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344 (1974); cf. Commonwealth v. Bracero, 515 Pa. 355, 528 A.2d 936 (1987); Commonwealth v. Davis, supra. Finally, we note that recantation evidence is highly suspect, even when it involves an admission of perjury. See Commonwealth v. Nelson, 484 Pa. 11, 398 A.2d 636 (1979).

Here, appellant attempted to introduce an affidavit in which Homer Lane, the only eyewitness to the murder, allegedly recants his trial testimony and thereby exonerates appellant. The record reveals that Homer Lane testified at trial that appellant committed the murder for which he was charged. See N.T. June 1, 1982 at 5, 10. The record also reveals that during hearings held on post-verdict motions, Mr. Lane unequivocally stated that his trial testimony was true. See N.T. December 8, 1983 at 30. Furthermore, appellant alleged below that in spite of efforts to locate him, Lane was unavailable for further examination. See N.T. April 12, 1989 at 4. Far from adding to its credibility, these circumstances raise serious questions concerning the trustworthiness and reliability of the proposed affidavit. In light of these circumstances, and the inherent unreliability of recantation evidence, we cannot hold that the alleged recantation affidavit of Homer Lane was admissible as declaration against penal interest. See Commonwealth v. Nash, supra. Accordingly, we find that the trial court did not err in refusing to admit the affidavit as a declaration against penal interest.

Appellant’s second argument is that the PCHA court erred by failing to authorize counsel to spend funds in order to hire an investigator to locate certain witnesses in support of appellant’s PCHA claims. In Commonwealth v. Gelormo, 327 Pa.Super. 219, 475 A.2d 765 (1984) we noted that:

Under the law of Pennsylvania, as in a majority of states, the appointment of an expert witness or an investigator to assist on the preparation of a defense is vested in the discretion of the trial court ...
[t]here is no constitutional mandate, either federal or state, that experts be appointed at the public expense to assist in the preparation of a defense____

Id., 327 Pa.Superior Ct. at 227-29, 475 A.2d 769-70. We will not reverse a trial court’s decision in this regard absent an abuse of discretion. Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986). Generally, the trial court will not be found to have abused its discretion in the absence of a clear showing as to the content, relevancy and materiality of the testimony of the potential witnesses. Id.; cf. Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976).

Here, close examination of the record reveals that PCHA hearing counsel sought funds for an investigator in order to locate two unnamed persons alleged to have been with Adam Green on the night of the crime. Although Mr. Green did not testify at trial or the PCHA hearing, PCHA counsel alleged that he would have testified that, at the time of the crime, he was with Mr. Lane at a place other than the scene of the crime and that the two unnamed witnesses were also there. See N.T. February 14, 1989 at 5-12. This is the only evidence PCHA counsel provided in support of her request for investigative funds, and we agree with the PCHA court’s observation that “all [PCHA counsel] ha[s] done ... is made a lot of allegations.” N.T. February 14, 1989 at 10. Even if the allegations were credible, Green’s testimony, at best, would serve to impeach Lane; and the unnamed witnesses, in turn, would serve only to corroborate Green. These mere allegations do not even come close to satisfying the standard of proof required by Peterkin. The PCHA court, therefore, did not abuse its discretion in refusing to allocate funds for an investigator.

Appellant next argues that counsel at various stages of the proceedings below were ineffective for several reasons. We disagree.

When confronted with a claim of ineffectiveness of counsel, we must consider three factors:

We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings.

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988) (citations omitted).

Appellant’s first argument is that PCHA counsel was ineffective for failing to secure the attendance of Teech Burton at the PCHA hearing. In order to prevail on this particular ineffectiveness claim, appellant must show that: (1) the witness was available; Commonwealth v. Griffin, 357 Pa.Super. 308, 515 A.2d 1382 (1986); (2) that he informed counsel of the existence of the witness, Commonwealth v. Ross, 273 Pa.Super. 67, 416 A.2d 1092 (1979); (3) that the witness was prepared to cooperate and testify for the defense, Commonwealth v. Polk, 347 Pa.Super. 265, 500 A.2d 825 (1985); and (4) that the witness’s testimony was so essential to the defense that his or her absence caused an unfair verdict or sentence. Commonwealth v. Griffin, supra; Commonwealth v. Williams, 344 Pa.Super. 493, 496 A.2d 1213 (1985).

Here, the record reveals that appellant has failed to satisfy the above-mentioned requirements. Appellant has provided no evidence that Teech Burton was available to testify at the PCHA hearing. In addition, he has not alleged that counsel was aware of Ms. Burton, and he has made no showing that she was prepared to testify, on his behalf. Finally, although appellant has alleged that “she would have testified that [appellant] was present in [a] bar at 2:00 a.m. [on the night of the crime] ... ”, Appellant’s Brief at 20, this testimony would merely be cumulative to appellant’s own alibi testimony, and the testimony of three other witnesses who placed him in the bar at the time of the crime. See N.T. November 17, 1982 at 326, 381; N.T. November 18, 1982 at 453. Thus, this evidence cannot be said to have been so essential to the defense that Ms. Burton’s absence caused an unfair verdict. Appellant’s argument that counsel was ineffective for failing to interview and obtain the testimony of Teech Burton, therefore, is meritless.

Appellant’s next argument is that PCHA hearing counsel was ineffective for failing to secure the attendance of Homer Lane at the PCHA hearing. We disagree.

PCHA counsel testified that she attempted to secure Mr. Lane’s attendance at the PCHA hearing by subpoenaing him. See N.T. April 12, 1989 at 4. However, despite counsel’s attempts, Mr. Lane could not be located. The record, therefore, reveals that PCHA counsel took the necessary and appropriate steps to secure Mr. Lane’s attendance at the PCHA hearing, and that those actions were fruitless. On this record there is no basis for finding that PCHA counsel’s stewardship in this regard was deficient; indeed, she took appropriate action to protect her client’s interests under the circumstances of this case. Accordingly, appellant’s claim that PCHA counsel was ineffective for failing to obtain Homer Lane’s presence at the PCHA hearing is meritless.

Appellant next argues that trial counsel was ineffective for failing to object to the jury instruction. Specifically, he argues that the trial court’s instruction was erroneous because it neglected to inform the jury that it should acquit if the appellant’s alibi evidence, even if not wholly believed, raised a reasonable doubt of his guilt.

We find this claim to be controlled by our recent decision in Commonwealth v. Jones, 386 Pa.Super. 467, 563 A.2d 161 (1989) (en banc), in which we stated:

An appellate evaluation of a trial court charge must be based on an examination of the charge as a whole to determine whether it was fair or prejudicial----
[W]hat is required of the trial court is that it make clear to the jury that the defendant’s failure to prove alibi is not tantamount to guilt____
[T]he court at bar ... told the jury that [the] alibi evidence, either by itself or together with other evidence, may be sufficient to raise a reasonable doubt ... and acquit [the defendant]. Accordingly ... we find that the trial court’s alibi charge was proper____

Id., 386 Pa.Superior Ct. at 470-72, 563 A.2d 162-163 (citations omitted). Here, the record reveals that the trial court gave the jury the following instruction:

The defendant’s evidence that he was not present, either by itself or together with other evidence, make [sic] it sufficient to raise a reasonable doubt in your mind. If you have a reasonable doubt of the defendant’s guilt, you must find him not guilty.

N.T. November 19, 1982 at 676-77. These instructions are in direct conformity with the alibi instruction that was approved in Jones. Because counsel will not be deemed to have been ineffective for failing to pursue a meritless claim, we find that trial counsel was not ineffective for failing to object to the trial court’s jury charge. See Commonwealth v. Blagman, 350 Pa.Super. 367, 504 A.2d 883 (1986).

Appellant’s final argument is that the trial court erred in sentencing him for two inchoate offenses, criminal conspiracy and possession of an instrument of a crime. The Commonwealth concedes that both sentences cannot stand. We agree.

The version of 18 Pa. C.S.A. § 906 that was in effect at the time of appellant’s sentencing, stated:

A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.

Id. The crimes contained in the chapter include criminal conspiracy and possession of instruments of a crime. See id. § 905, § 907. Our decision in Commonwealth v. Gonzales, 297 Pa.Super. 66, 443 A.2d 301 (1982) also is helpful in evaluating appellant’s claims. In applying the prior version of section 906 to appellant’s claims that he had been illegally sentenced for both criminal conspiracy and possession of an instrument of a crime, we stated:

Both offenses for which appellant was found guilty fall within the purview of chapter 9, of the Crimes Code, the chapter mentioned in Section 906, and it is apparent in reviewing the facts that both offenses were committed with one objective in mind. Accordingly, appellant’s conviction for criminal conspiracy and possessing an instrument of a crime was improper.
Given the error by the lower court, we have the option to either remand for sentencing, or amend the sentence, directly____ Since the sentence for possession obviously did not affect the sentence for criminal conspiracy, we shall not remand, but shall merely vacate the sentence imposed for possession of an instrument of a crime as the lesser offense.

Id., 297 Pa.Superior Ct. at 75, 443 A.2d at 305 (citations omitted). See also Commonwealth v. Tingle, 275 Pa.Super. 489, 419 A.2d 6 (1980). Here, the record reveals that appellant received separate sentences for criminal conspiracy and possession of an instrument of a crime in connection with the same criminal objective, his assault of Homer Lane. N.T. December 14, 1983 at 13, 19. These separate sentences cannot stand under prior section 906 and Gonzales. Accordingly, we vacate the sentence imposed for criminal conspiracy, which, since it was to run concurrently with the other offense, is the lesser offense.

For the foregoing reasons, we affirm the judgment of sentence as modified.

Judgment of sentence as modified is affirmed.

      . 42 Pa. C.S.A. §§ 9541-9551. The PCHA has been modified in part, repealed in part, and renamed the Post Conviction Relief Act (PCRA) by the Act of April 13, 1988, 42 Pa. C.S.A. §§ 9541-9546. The new provision applies to all actions for collateral relief filed on or after the effective date. Because the petition below was filed before the effective date of the PCRA, it must be evaluated under the former Act.

      . Appellant also contends that the evidence presented in that affidavit, if admitted, would satisfy the requirements for after discovered evidence and thereby necessitate a new trial. Because of our disposition of appellant’s first argument, however, we need not address this argument.

      . Appellant also contends that post-trial, prior appellate and PCHA hearing counsel were ineffective for failing to raise trial counsel’s ineffectiveness on this issue in post-verdict motions, the prior appeal and the PCHA petition. Because the underlying issue is meritless, these layered claims of ineffectiveness are also meritless.

      . Appellant also contends that post-trial, prior appellate and PCHA hearing counsel were ineffective for failing to raise trial counsel’s ineffectiveness in this regard in post-verdict motions, the prior appeal and the PCHA hearing. Because we have found that trial counsel was not ineffective, this argument is patently meritless.

      . Section 906 was amended on December 11, 1986, and now states: A person may not be convicted of more than one of the inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy for conduct designed to commit or culminate in the same crime.


author: CAVANAUGH, Judge.

text:
    575 A.2d 607
    Sandra L. HATBOB and Darlene L. River, Appellants, v. Reginald BROWN and James L. Nardelli, Appellees.
    Superior Court of Pennsylvania.
    Argued March 20, 1990.
    Filed May 16, 1990.

      James R. Walker, Pittsburgh, for appellants.
    James R. Farley, Pittsburgh, for Brown, appellee.

      Stephanie G. Spaulding, Pittsburgh, for Nardelli, appellee.
    Before CAVANAUGH, DEL SOLE and HUDOCK, JJ.
   CAVANAUGH, Judge.

The issues in this case are whether the court below properly entered non-suits against the appellants, Sandra L. Hatbob and Darlene River, in their actions for breach of contract against a testator who changed his will, and for legal malpractice against the attorney who prepared the will that was subsequently changed.

After the appellants, the plaintiffs below, concluded their case in chief in a jury trial before Louik, J., the court entered a non-suit in favor of the appellees. The motion of the appellants to remove the non-suits was denied and an appeal has been taken to this court.

A motion for compulsory non-suit allows a defendant to test the sufficiency of a plaintiffs evidence. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977). It may be entered only in cases where it is clear that the plaintiff has not established a cause of action, giving the plaintiff the benefit of all favorable evidence and all reasonable inferences arising from the evidence. Storm v. Golden, 371 Pa.Super. 368, 538 A.2d 61 (1988). However, a jury may not be permitted to reach its verdict based on speculation or conjecture. Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959). A judgment of non-suit is properly entered if the plaintiff has not introduced evidence sufficient to establish the necessary elements to maintain an action. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983). Further, it is the duty of the trial judge to determine, prior to submitting the case to the jury, whether the plaintiff has met this burden. Thomas v. Ribble, 404 Pa. 296, 172 A.2d 280 (1961).

Viewing the evidence in the light most favorable to the appellants, it appears that in December, 1973, Reginald Brown contacted James L. Nardelli, an attorney whom he knew, and requested that simple wills be prepared for him and his wife. At this time, Mr. Nardelli had not yet met Mrs. Brown. The attorney conferred with Mr. and Mrs. Brown on December 26, 1973. Mr. Nardelli knew that Mr. and Mrs. Brown had been previously married and that Mrs. Brown had two children by her previous marriage, Sandra Hatbob and Darlene L. River, the appellants herein, and Mr. Brown had a daughter, Elizabeth G. Smith (who is now Elizabeth Stevvins). Mr. Brown told his lawyer that he and his wife would soon be moving to Florida and he instructed Mr. Nardelli to prepare separate wills. The testamentary disposition was uncomplicated and Mr. Brown left his entire estate to Mrs. Brown, if she survived him by sixty days, and if not, his estte was to go in equal shares, to his two stepdaughters, Sandra Hatbob and Darlene River, and his daughter, Elizabeth G. Smith. Mrs. Brown executed a similar will leaving her estate to her husband, if he survived her by sixty days, and if not, then in equal shares to her two daughters and stepdaughter. Both wills were dated December 31, 1973. Mr. Nardelli advised the Browns to have their wills reviewed by a Florida attorney, as they were moving to that state shortly after the wills were executed. They did not have the wills reviewed by an attorney in Florida.

Mr. Brown testified that he did not discuss his financial affairs with Mr. Nardelli, but merely told him who the beneficiaries were to be. The will expressed his intentions at the time it was signed and he was sure it also expressed his wife’s intentions. Mr. Brown understood that he could change his will in the future. Mr. Nardelli also believed that the wills could be changed by either party at any time in the future.

Mrs. Brown died in Florida in April, 1985 and Mr. Brown inherited her entire estate under the December, 1973 will. Subsequently, Mr. Brown executed new wills in which he left his estate to his daughter, Elizabeth S. Stevvins. In March, 1986, the appellants commenced a civil action in Allegheny County against Mr. Brown, alleging breach of contract by making a new will and against James L. Nardelli for negligence.

Following the presentation of the plaintiffs’ case in the court below, the appellees’ motion for compulsory non-suit was granted. By order dated June 26, 1989, the court refused to take off the non-suit and this appeal followed.

In order to consider the propriety of the court’s refusal to submit the case to the jury, we must consider the evidence in support of the appellants’ claim that there was an enforceable oral contract to make wills that could not be changed by the testators. The appellants must meet the exacting evidentiary burdens placed by law upon one who would establish an oral contract to make a will. Friedman Estate, 483 Pa. 614, 398 A.2d 615 (1978). These requirements were summarized in Fahringer v. Strine Estate, 420 Pa. 48, 53-55, 216 A.2d 82, 85-86 (1966) as follows:

Certain rules have been established in this area of the law: (a) a contract to make a will or to bequeath by will, as other contracts, must be established by proof of an offer, an acceptance and legal consideration (Reynolds v. Williams, 282 Pa. 148, 127 A. 473; Kocher Estate, 354 Pa. 81, 46 A.2d 488; Goldstein Estate, 384 Pa. 1, 119 A.2d 278); (b) the terms of the contract must be shown with certainty and lucidity (Soffee v. Hall, 377 Pa. 306, 105 A.2d 144; Hook’s Estate, 207 Pa. 203, 56 A. 428); (c) the evidence must be scrutinized with great care (Burgess v. Burgess, 109 Pa. 312, 1 A. 167; Bradshaw’s Estate, 243 Pa. 114, 89 A. 831; Strafford v. Reed, supra, [363 Pa. 405, 70 A.2d 345]); (d) there must be ‘direct evidence’ in proof of the contract (Calvert v. Eberly, 302 Pa. 152, 156, 153 A. 146; Consentino v. Vittoria, 394 Pa. 538, 541, 147 A.2d 839); (e) as in the case of other claims against a decedent’s estate, the evidence in proof of the contract, must be ‘clear, direct, precise and convincing’ (Petro v. Secary Estate, 403 Pa. 540, 170 A.2d 325; Klemow Estate, 411 Pa. 136, 140, 191 A.2d 365); ...

The only witnesses who testified as to what occurred at the office of attorney Nardelli about the circumstances surrounding the making of the wills were Reginald Brown and Mr. Nardelli. Neither testified as to any contract to make irrevocable wills. Mr. Brown and Mr. Nardelli both understood that the wills could be changed at any time.

The appellants contend that Reginald Brown breached a verbal contract with his wife to create an irrevocable plan of distribution for their estates. Evidence offered to support this alleged agreement included the testimony of Mrs. Hatbob, who testified:

Q. Now, where were you, Sandy? You were telling us about — ?

A. Well, we were talking about what would happen if they died and mother was explaining — she told me that they were going to be buried together, that their wills were the same, and we started to talk about a few things that would happen and she told me — . I asked her actually what would happen if she died first? We hadn’t talked about that, either.

And she said, well, not to worry; that her will stated everything went to Brownie and then, upon his death, everything went to the three of us.

And I said, “Yes, Mom, but what happens if you do die first? Is there anyway that Dad and Betty Jean could possibly change it or screw my sister and me?”

She said, “No, Sandy. My will takes care of that.” She said, “It can’t be changed.”

And after that there was no reason to talk to her about it. She stated the fact, and once you are told, you are told. Why would you ask again? (Emphasis added.)

The appellants rely on the testimony of Floyd River, the husband of Darlene River, who was present in Florida with Mr. and Mrs. Brown. Mr. River testified:

Q. Did she say anything further about the wills and the arrangement that — ?

A. What she said was that they — they both wanted their wills this way and the fact that the wills couldn’t be changed. They both agreed upon this; they were happy with their wills the way they were written up and they couldn’t change them. She said, “If Mr. Brown should die first, then I am obligated to see to it that I keep the will the same and to see to it when I die that Sandy gets one third share and Darlene gets her third share and Mrs. Stevvins get her third share.” She also went on to say that Mr. Brown had that same obligation.

Q. Okay. Did she read to you from the wills?

A. No.

Q. During this conversation?

A. No.

Q. Who participated? Do you recall the Defendant, Reginald Brown, having any participation in this conversation? I think that you indicated he was present, was he not?

A. Yes, he was present.

Q. Okay.

A. The only participation he took in the conversation was he acknowledged what she said on several occasions. He didn’t add anything to the conversation or enter into it. But at various times she would look over to him and say, “Isn’t that right, Brownie?” And he would say, “Yes, yes, that is right.” He would acknowledge the facts she was saying. He was listening to it somewhat. He wasn’t — I felt that Mr. Brown had heard it all before and he was aware of the situation and he was aware of the way —.

The appellants also rely on the testimony of Darlene River, one of the appellants, who testified as follows:

Q. When did you first find out anything about the wills and estate plan that had been made between Irene and Reginald?

A. Well, I knew in December of ’73 that she had gotten wills made.

Q. You knew about the fact that she had done that? A. That that is what they had done, whenever they were up here in ’73, that they had made an appointment and had wills drawn up.

Q. Did you know anything about what the will said at that point?

A. Not at that point, no.

Q. When is the first time you found out anything about what the plan was?

A. Certain dates, certain times of the year, I can not say. It was just a general over-the-year conversation, that these wills were drawn up, that these were virtually the same, that, upon the death of the one, his estate would go to the survivor, and then to the three children in equal shares. (Emphasis added.)

Finally, appellants rely on the testimony of James Nardelli as evidence of an agreement not to revoke or change the wills. Mr. Nardelli’s relevant testimony was:

Q. Did you have any particular or normal procedure that you followed, prior to December of 1973, in preparing wills of spouses, when those spouses had been parties to previous marriages or had had children in connection with previous marriages?

A. As I recall in this particular instance, Mr. and Mrs. Brown had already formulated in their own minds the fact that the three children, I will refer to them as children collectively, were to be treated equally, and that was an initial statement to me, and therefore I did not inquire further into it. There was no reason to.

Q. And in connection with that statement, were you told specifically that the three children were to be treated equally at or upon the death of the surviving spouse?

A. Yes, as reflected in my notes and in the wills as drafted. (Emphasis added.)

The appellants also rely upon the following answer by Mr. Nardelli:

Q. And you had the opinion or understanding at the time that Reginald Brown and Irene Brown had previously reached such a predetermined understanding?

A. Very definitely.

The wills before us were signed on December 31, 1973 and are clear and unambiguous. The heavy burden that appellants had to meet was to establish that the parties contracted not to change their wills in the future. They did not produce sufficient evidence to submit this issue to the jury.

Wills are, by nature, revocable. The Probate, Estates and Fiduciary Code, 20 Pa.C.S. § 2505 expressly provides for the revocation of a will: “by some other will or codicil in writing.” There is no doubt that Reginald Brown has intended to revoke his will of December 31, 1973 by virtue of his later wills. Even though the December, 1973 wills were mutual and made at the same time, this does not prevent revocation in the absence of a clear and definite contract established by proof of an express agreement or unequivocal circumstances. Rhodes Estate, 277 Pa. 450, 121 A. 327 (1924). There is no real difference between an agreement not to revoke a will and an agreement to make a will. As stated in Fahringer v. Strine Estate, 420 Pa. at 52, 216 A.2d at 85: “... because of the opportunity such alleged contracts [to make a will] afford for the presentation of false and fraudulent claims, traditionally the courts have been reluctant to give recognition to such contracts and have viewed claims based on such contracts with misgivings and suspicion.” See also, Vajentic Estate, 453 Pa. 1, 306 A.2d 300 (1973). An. oral agreement to make a will must be established by evidence that is clear, precise and indubitable. Kelly v. Sheehan, 378 Pa. 33, 105 A.2d 706 (1954). This means that the witnesses must be credible, distinctly remember the facts to which they testify, and narrate the details with exactitude. Stafford v. Reed, 363 Pa. 405, 70 A.2d 345 (1950).

In the absence of a valid contract, the concurrent signing of reciprocal wills “with full knowledge of the contents, by both testators, is not enough to establish a legal obligation to forbear revocation.” Kester Estate, 477 Pa. 243, 250, 383 A.2d 914, 918 (1978), quoting from Rhodes Estate, 277 Pa. 450, 453, 121 A. 327 (1923). Imbruglia Estate, 479 Pa. 95, 387 A.2d 851 (1978) involved reciprocal wills in which each spouse stated that the will was made in consideration of the will of the other spouse. Each will provided that if a spouse predeceased, certain real estate would be given to named individuals. The wife predeceased and the husband then executed a new will, naming different beneficiaries. Upon the death of the husband, the original beneficiaries sued, claiming an enforceable agreement not to revoke. The court noted that while the husband and wife devised each of their estates in a similar manner, and stated a “consideration” of the other’s act of writing a similar will, neither writing demonstrated an intent to give up their right to revoke the wills. The evidence was held to not meet the demanding standards of proof of a contract not to revoke.

We must contrast the will before us and that in Curry v. Thompson Estate, 332 Pa.Super. 364, 367-68, 481 A.2d 658, 659 (1984). In that case, there were reciprocal wills made by a husband and wife. The wife’s will provided, inter alia: “The wills are identical since it is our intention and we hereby agree that the wills are to remain unchanged upon consideration of receiving more than our Intestate share of each other’s estate.” After the husband died, the wife made a new will with different provisions. We held that the contract not to revoke could be discerned from the face of the will and no extrinsic evidence was necessary to establish the contract. However, as noted in Kester Estate, 477 Pa. at 251, 383 A.2d at 918:

When it is claimed that someone has contractually limited his testamentary freedom, our standard of proof is a demanding one. In the case of a joint will in which extrinsic evidence is relied upon to prove the existence of a contract, we held that the proof must be ‘clear and convincing’.

The evidence submitted by the appellants does not approach the standard of clear, precise and indubitable evidence. The wills give no indication that the parties intended them to be irrevocable. The scrivener, Mr. Nardelli, and one of the testators believed that they could be changed. The evidence submitted established at best that Mrs. Brown thought that the wills could not be changed. Although her will was simple and clear, Darlene River testified that her mother told her that the way the wills were drawn up, “upon the death of the one, his estate would go to the survivor, and then to the three children in equal shares.” The will does not provide this. To reach this result would require that we rewrite the wills as the appellants’ interpretation envisions a life estate only to the survivor with a remainder interest in the children. The wills devised and bequeathed an absolute interest in each spouse’s property and did not provide for the creation of a trust.

The hearsay statements attributed to Irene Brown indicate only a vague and inaccurate understanding of her will, and do not set forth a precise and definite contract not to revoke the wills. Mrs. Hatbob testified that her mother told her that the will said “everything went to Brownie and then upon his death, everything went to the three of us.” When Mrs. Hatbob asked her mother if Reginald Brown could change his will, she allegedly replied that he could not; “my will takes care of that ... it can’t be changed.”

The strongest evidence to establish an agreement not to revoke was the testimony of Floyd River. This was based on hearsay evidence of statements made by Mrs. Brown allegedly in the presence of Reginald Brown. Nevertheless, Mr. Brown did not participate in the conversations but was only “somewhat” listening. The conversation between Mr. and Mrs. Brown and Mr. River did not establish a promise not to revoke supported by valid consideration. Casting the conversation in the light most favorable to the appellants, it does not establish the basic elements of a contract consisting of an offer, acceptance and consideration by direct, clear and convincing evidence. The requirements set forth in Fahringer v. Strine Estate, supra, must be strictly met and the evidence submitted fell far short of this.

The appellants also contend that the court erred in refusing to admit the deposition of a Florida attorney, Michael E. Hoover, regarding his conversation with Benjamin G. Parks, also an attorney in Florida. The appellants contend that Mr. Hoover’s deposition would have established that Mr. Parks, who represented Mr. Brown in Florida in connection with the administration of his wife’s estate, stated that Mr. Brown told him that Mr. Brown entered into an agreement to make mutual wills. The admission of evidence is within the sound discretion of the court and the court’s decision will not be reversed in the absence of a clear abuse of discretion. Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985); McCrery v. Scioli, 336 Pa.Super. 455, 485 A.2d 1170 (1984). We find no abuse of discretion in excluding the testimony which the court below found to be irrelevant. The court determined that at best it would merely show an agreement to make wills and this was carried out. Mr. Brown was not present when Mr. Parks made the alleged statements and they would not be binding on Mr. Brown. If admissions are made out of court and not in the presence of the client, authority to make the admissions or the knowledge, and assent of the client to make them must be shown. DeFrancesco v. Western Pennsylvania Water Co., 329 Pa.Super. 508, 478 A.2d 1295 (1985). Mr. Brown denied specifically making a contract not to revoke or change his will and no authority was shown from Mr. Brown to make the alleged admissions. In any event, the proposed depositions did not establish a contract not to revoke the wills.

Finally, the court committed no error in granting the appellees’ motion for compulsory non-suit in the action against James L. Nardelli for malpractice. When we reach the issue of whether a purported beneficiary under a will, who is not a party to the underlying contract between the testator and his attorney, may bring an action in Pennsylvania for malpractice against the attorney, we enter seas that are not clearly charted. In Connelly v. Wolf, Block, Schorr & Solis-Cohen, 463 F.Supp. 914 (E.D.Pa.1978) it was noted that for a plaintiff to recover against an attorney in a legal malpractice case, it was generally essential that an attorney-client relationship exist between the parties. However, the Supreme Court in Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983) held that a named legatee under a will may bring suit as an intended third-party beneficiary of the contract between the attorney and the testator for the drafting of the will which specifically named the legatee as the recipient of part of the estate. The court also held that privity of contract between the attorney and client is required in order to bring an action in negligence for professional malpractice. In Guy v. Liederbach, the plaintiff was designated as a beneficiary and executrix under the testator’s will. The attorney directed her to witness the testator’s will and as a result, her legacy and appointment as executrix were void under New Jersey law where the testator resided. The lower court dismissed the,suit which was based on assumpsit and negligence theories and the Supreme Court remanded holding that the named legatee could bring an action as a third party beneficiary under Restatement (Second) of Contracts, § 302. The court held that only a named beneficiary could bring such a suit.

The Supreme Court, in the recent case of Hicks v. Saboe, 521 Pa. 380, 385, 555 A.2d 1241, 1244 (1989): considered Guy v. Liederbach in the context of an uninsured person’s action against a title company. The court held that direct liability to an uninsured third party was precluded. The court in discussing Guy v. Liederbach stated:

Following the principles set forth in the Restatement (Second) of Contracts, the Court permitted a restricted cause of action for an intended third party beneficiary who was not in privity with the professional whose malpractice harmed the beneficiary. It was critical that the beneficiary was an intended beneficiary, that is, one intended by the promisee to receive the benefit of the promised performance.

We do not construe this as permitting a malpractice action based merely on negligence against an attorney where there is no privity of contract. The complaint against Mr. Nardelli alleges a breach of contract between him and the appellants, but the thrust of the complaint is that the appellants suffered the loss of the sum of “$198,-901.65 which is the value of the estate of Irene A. Brown which has been lost to them because of defendant, James L. Nardelli’s negligence as aforesaid.” (Emphasis added.) The Statement of Issues Presented refers to “Mr. Nardelli’s negligence in the drafting of wills for defendant Brown and his wife ...” Clearly, the case was presented as a legal malpractice action based on negligence. Appellants’ brief relies on Schenkel v. Monheit, 266 Pa.Super. 396, 405 A.2d 493 (1979), which involved a malpractice claim against an attorney where there was privity of contract.

However, our decision does not turn on the fine point that appellants endeavored to prove malpractice based on negligence rather than breach of contract. We are satisfied that appellants did not establish a breach of contract between Mr. Nardelli and the testators. When attorney Nardelli prepared wills for Mr. and Mrs. Brown, he carried out the instructions of the testators. The named legatees received nothing less than the testators intended as expressed by their wills. When Mrs. Brown died, Mr. Brown inherited her entire estate without any limitation. Had Mr. Brown died first, and the wills remained the same, then Mrs. Brown would have been the sole beneficiary under his will. She could have left her will as it was in 1973 if she so desired, but would have been under no legal compulsion to do so.

In order for the appellants to recover as third-party beneficiaries, they would have to show a breach of contract between Mr. Nardelli and the testators. In the case of a testator-attorney contract the attorney is the promisor who promises to draft a will which carries out the testator’s intent to benefit the legatees. Guy v. Liederbach, supra. No evidence was introduced to indicate that Mr. Nardelli did not carry out Mrs. Brown’s intention to benefit the appellants. We have determined that there was no contract to make Mr. and Mrs. Brown’s wills irrevocable and Mr. Brown testified that the will exactly expressed his intent at the time it was made, and Mrs. Brown’s intent also at that time.

Under Guy v. Liederbach, supra, the appellants are precluded from recovery on the basis of alleged malpractice of Mr. Nardelli, as this remedy requires the existence of an attorney-client relationship. While they could proceed as third-party beneficiaries on the theory of breach of contract, there was not sufficient evidence to warrant submission of this issue to the jury.

Order affirmed.

      . The relevant sections of Mrs. Brown’s will are as follows:

        SECOND: I hereby give, devise and bequeath all the rest, residue and remainder of my estate both real, personal and mixed of whatsoever kind and wheresoever situate to my husband, Reginald Brown.

        THIRD: In the event that my husband, Reginald Brown, should predecease me, die simultaneously with me or die within sixty (60) days of my death, I then give, devise and bequeath my entire estate to my daughter, Sandra L. Hatbob, my daughter, Darlene L. River, and my stepdaughter, Elizabeth G. Smith, in equal shares, share and share alike. In the event that any child or stepchild of mine, as enumerated above, shall have predeceased me, then, in that event, I direct that the share of my estate which would have otherwise passed to said deceased child or stepchild shall then pass to the children of said deceased child or stepchild, per stirpes and not per capita.

      . The testimony of attorney Nardelli was as follows:
      Q. At any time during your meeting with Reginald Brown and Irene Brown on December 26, 1973, did you ask either of them whether they wanted to place any restrictions on the ability of the surviving spouse to change the wills that they had asked you to prepare or to change the disposition of assets that was being set forth in the wills you were asked to prepare?
      A. There was no such discussion initiated by either Mr. or Mrs. Brown or myself. Nor did any such discussion take place.
      Q. At the time that you prepared, in December of 1973, the wills of Reginald Brown and Irene Brown, did you understand, or did you have an understanding whether the surviving spouse would be entitled to change his or her will, or to change the disposition of assets set forth in his or her will?
      A. There would have been no doubt in my mind then or now that either party could have independently changed the wills that I drafted.
      Mr. Brown testified as follows:
      Q. And did your will as it was drafted for you by Mr. Nardelli, did that document express your wishes at that time?
      A. It did.
      Q. And as far as you know, did your wife’s will, Irene Brown’s will, express her wishes at that time?
      A. I’m sure it did.
      Q. Did you ever have an intention — or was it ever your intention that you would not be able to change that will?
      A. No.

        Q. Do you have any knowledge as to whether it was Mrs. Brown’s intention, Irene Brown’s intention, that she would never be able to change her will?
      A. No. As far as I know, we never discussed anything after we made the wills. Never have I discussed — the only time we talked about it was Jim [Nardelli] advised us to take them to a Florida lawyer, which we never did.
      Q. Do you recall — .
      A. At one time we did talk and we talked about getting a lawyer in Florida to remake the wills.
      Q. And you never came to them or any other firm here in Florida to review the wills that Mr. Nardelli had drafted for you?
      A. No.

      . The understanding that Mr. Nardelli was referring to was that the three children were to receive equal shares as provided for in the wills he prepared.

      . The deposition of Mr. Hoover that counsel for the appellants desired to have admitted was this:
      THE COURT: A statement that says this: “ 'and I asked him, What do you mean that it doesn’t matter, and he said, well, Mr. Hoover, are you aware that the parties entered into a mutual will agreement on December 31, 1973?’ And I recall that very specifically because it really caught me off guard, and prior to that point in time, there had been no indication by anybody to me, that there had been such a mutual will agreement.”
      Now, is that what you are offering as an admission?
      MR. WALKER: [Counsel for Plaintiffs below] Yes.
      MR. WALKER: By his attorney.

      . In Eisenberg v. Gagnon, 766 F.2d 770, 779 (C.A.3 1985), the court stated: "In Pennsylvania malpractice liability for negligent performance of legal services generally extends only to the lawyers’ clients”, but referred to Guy v. Liederback, supra, which allows claims of third party party beneficiaries.

      . Mr. Justice Roberts dissented stating at 501 Pa. 65-66, 459 A.2d 754:
      As decedent was under no contractual obligation to make a will which named appellee as a beneficiary, decedent was thus free to change his testamentary intent until the day he died. See, e.g., Imbruglia Estate, 479 Pa. 85, 95, 387 A.2d 851 (1978).
      Here, the record is clear that appellant [the lawyer] and decedent did not intend that appellant would render services to appellee; the sole promise which appellant made to decedent was to write decedent’s will, a promise which appellant performed.
      Although appellant fairly may be charged with having impliedly promised decedent that the execution of the will would be conducted in a manner that would not result in the nullification of the bequest to appellee, decedent’s relief for a breach of such a promise would have been either a new, properly executed will or the cost of having such a will prepared.
      Appellee’s [beneficiary and executrix] demand for far greater relief than that which would have been available to decedent makes it clear that what appellee is seeking to enforce is, in fact, not a promise made between appellant and decedent under the law of contracts, but rather an alleged duty owed by appellant directly to appellee under the law of torts. Having properly refused to recognize such a duty in a cause of action in trespass, the majority has offered no logical basis for its imposition of a similar duty as a purported application of third-party beneficiary law. (Emphasis added.)


author: MONTGOMERY, Judge:

text:
    575 A.2d 615
    LANARD & AXILBUND, INC. v. Joseph MUSCARA & Lorraine Muscara and Tucker Realty, Inc. Appeal of Joseph MUSCARA and Lorraine Muscara.
    Superior Court of Pennsylvania.
    Argued March 14, 1990.
    Filed May 23, 1990.

      David L. Narkiewicz, Lansdale, for appellants.
    Ben W. Joseph, Philadelphia, for appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant action was instituted by plaintiff-appellee Lanard & Axilbund, Inc. (hereinafter “Lanard”), a real estate broker, to recover commissions allegedly due in connection with several leases. Defendant-appellants Joseph and Lorraine Muscara (hereinafter referred to as “Muscaras”), at all times material herein, have been the owners of the Jacksonville Road Industrial Park, which is the site where the leases had application. Defendant-appellee, Tucker Realty, Inc. (hereinafter referred to as “Tucker”), which was another real estate broker, was involved in some of the transactions giving rise to the litigation. After a non-jury trial, the lower court ordered that the Muscaras pay plaintiff-appellee commissions in the amount of $197,-250.66, plus interest, which the court computed in the amount of $11,835.04. Further, the trial court ordered that the Muscaras promptly pay all future commissions based upon rents received from two named tenants during applicable renewals of their leases. Finally, it was ordered that Lanard be paid six percent of the gross sales price in the event that a particular tenant would purchase particular lots in the industrial park, in accordance with lease agreements involved in the case. Finally, the trial court determined that Lanard was not entitled to any recovery against Tucker. After the denial of post-verdict motions, the instant appeal was filed.

The record shows that in approximately 1971, Don Rosen, then an agent on the staff of Lanard, approached Mr. Muscara and requested the opportunity for Lanard to act as an exclusive rental agent for the Jacksonville Road Industrial Park. Mr. Muscara testified he had interviewed a number of real estate brokers to solicit tenants, collect rents, and handle other property management tasks. He chose Lanard as the exclusive real estate agent for the industrial park based solely upon his conclusion that Rosen would be capable in carrying out the intended responsibilities.

From the testimony of Rosen and Mr. Muscara, it appears that during 1971 and early 1972, they had numerous contacts in regard to Lanard’s representation of the Muscaras. Rosen told Muscara that the leases Lanard would negotiate for the benefit of the Muscaras would obligate them to pay Lanard a six percent commission on the rentals as compensation for obtaining and dealing with the tenants. Among other features of the agency relationship which Rosen explained to Muscara was the understanding that a so-called buyout arrangement would be included i.n all of the leases which would be negotiated by Lanard, in order to allow the Muscaras, at any time, to terminate Lanard as their agent for a single lump sum payment. On behalf of Lanard, Rosen represented that this buyout arrangement was a standard provision that Lanard made available in its commercial leases. The buyout terms provided that if the Muscaras elected to exercise such an option during the original term of the lease, commissions would be due Lanard for all remaining years of the original term at a rate of six percent of rentals for the first year following the buyout, five percent for the second year, and four percent for all subsequent years of the original term following the buyout, plus a payment at the rate of four percent per annum for the greater of either five years, or the length of the original term of the lease where it was extended beyond its original term. This provision was included in the leases which Lanard obtained from tenants for the Muscaras for several years after that time. It is central to the issues in dispute in this case.

Further, in soliciting the Muscaras on behalf of Lanard, Rosen explained to Mr. Muscara that the leases contained provisions which would require the Muscaras to pay sales commissions to Lanard if any of the leased properties were sold to the lessees. However, he represented that such provisions would be ineffective if a buyout had previously been effectuated by the Muscaras with respect to such properties. The initial Lanard leases entered into evidence during the trial proceedings included such a sales commission arrangement for Lanard if the properties were sold.

Rosen was the only representative of Lanard with whom the Muscaras dealt prior to December, 1976, when Rosen left the employ of Lanard. Before departing this employment, however, Rosen had begun to negotiate a lease with Communications Concepts, Inc. (hereinafter referred to as “CCI”), for space in the Jacksonville Road Industrial Park. There was testimony that during such negotiations, Rosen had explained to Mr. Muscara that the provisions of the original draft of the lease were identical to those in the previously described standard Lanard leases.

Subsequently, several months after Mr. Rosen had left the employ of Lanard, and after additional negotiations between Lanard and CCI, Lanard presented the Muscaras with a revised lease which had been executed by CCI. Lanard’s attorney met with Mr. Muscara to point out various negotiated changes in the revised lease. However, the attorney did not discuss the fact that the buyout clause had been eliminated from the lease.

In a subsequent letter from the same attorney, Lanard suggested that Mr. Muscara read the lease very carefully as there were some provisions which it would not ordinarily recommend to its clients. Further, the attorney suggested that it would be in Mr. Muscara’s best interest to have the lease reviewed by his own attorney. In an additional communication to the Muscaras from Lanard’s attorney concerning the CCI lease, 23 different points regarding negotiated provisions of the new lease were highlighted and discussed. In this letter, Mr. Muscara was again strongly urged by Lanard to have the document reviewed by an attorney of his own choice. Although Lanard pointed out numerous concerns regarding the lease and a great number of changes in it from the standard lease which had theretofore been employed in rental arrangements secured by Lanard on behalf of the Muscaras, Lanard’s attorney did not direct attention, in either of these letters, to the fact that the lease contained modified terms relating to its own understanding with the Muscaras. In that regard, Lanard again did not bring to the attention of the Muscaras that it had eliminated the buyout provision from the leases.

On March 23, 1977, the Muscaras signed the CCI lease which had been sent to them by Lanard. The lease provided that the Muscaras were obligated to pay Lanard a commission of six percent on all rental payments collected from CCI. The agreement also specified that Lanard would also be entitled to receive a six percent commission on further CCI rentals if CCI leased other space in the same building or any contiguous or adjacent property in the industrial park. Át trial, Mr. Muscara represented that he had never read the lease documents which he signed, relying on the good faith of Rosen and Lanard. He portrayed himself as a builder who worked all day at his construction tasks, and testified he maintained no business office, and did riot employ an attorney.

After leaving Lanard, Donald Rosen became an agent of defendant-appellee Tucker Realty, Inc. In that capacity, he continued to deal with the Muscaras regarding the industrial park. On separate occasions between 1978 and 1988, Rosen arranged for CCI to lease seven additional properties in the industrial park. Such properties were leased through Tucker. The Muscaras authorized Tucker to deduct nine percent of the rentals collected from the additional CCI leases. Tucker was to retain three percent for itself and transmit six percent to Lanard, consistent with the commission provisions of the 1977 CCI lease. Tucker confirmed this arrangement in writing to Lanard. In that context, Tucker was acting as the agent for the Muscaras in dealing with Lanard.

In May, 1977, Lanard negotiated a lease for additional space in the Jacksonville Road Industrial Park with a tenant named Delvco Industries, Inc. (hereinafter referred to as “Delvco”). The lease with Delvco contained the same commission arrangements as the 1977 CCI lease. The leasehold interest of Delvco was known as lot 2. Subsequently, on February 20, 1981, and again on November 5, 1986, Delvco renewed its original lease for a period of five years, with the same commission provisions. Further, after its original lease was effectuated in 1977, Delvco leased two additional properties within the industrial park. On August 16, 1983 it leased lot 1, section 3 and on May 10, 1988, it leased lot 1, section 1.

From March, 1977 through October, 1982, Lanard received all of the six percent commissions it was due from the CCI leases and from the original Delvco lease for lot 2. In late 1982, the Muscaras expressed a desire to buy out all of their commission obligations to Lanard. Lanard refused to agree to the proposed buyout arrangement, and maintained that the lease agreement specified that in the event that a lessee provided by Lanard purchased a leased property, Lanard would be entitled to receive a six percent commission on the gross sales price, in addition to an amount representing commissions for the remainder of the lease term pursuant to the payout schedule of rental commissions. Thus, in addition to the six percent commission on the sales price, Lanard insisted that it would be entitled to the six percent of the rentals during the first year after termination of its rights, five percent of the minimum rental for the second year after such date, plus four percent of the minimum rental for the balance of the term and all renewals and extensions of the occupancy by the particular lessee.

At the beginning of November, 1982, Mr. Muscara instructed Rosen and Tucker to cease all commission payments to Lanard on the CCI leases which had been negotiated by Rosen with CCI for additional space in October, 1978 and September, 1981, after he had left Lanard. Further, the Muscaras, Tucker and Rosen did not remit any payment to Lanard representing commissions on the Delvco leases which were negotiated in August, 1983 and May, 1988, for additional spaces in the industrial park.

Lanard has continued to receive a six percent commission under the 1977 leases with CCI and Delvco, which remained in effect without interruption from 1977 up to the date of the trial. However, since 1982, Lanard has received no commissions with regard to any of the leases for additional spaces which Rosen negotiated with CCI and Delvco after he left Lanard and joined Tucker. It is noteworthy that the form of lease used by Tucker in the post-1977 CCI and Delvco leases contained provisions which could be construed to give the Muscaras buyout rights with respect to such leases.

The trial court concluded that the Muscaras repudiated and breached their obligations to Lanard under the 1977 lease agreements with CCI and Delvco. The court found the language in the leases to be clear and unambiguous in obligating the Muscaras to pay specific commissions. It was found that Rosen and Tucker were acting as the authorized agents of the Muscaras in the leasing of additional properties in the industrial park, and in that capacity, Rosen and Tucker signed agreements which entitled Lanard to rental and sales commissions. Based on such determinations, the trial court issued its order for money damages in favor of Lanard and against the Muscaras, and further required that the Muscaras pay all future commissions based upon renewals of leasehold interests by CCI and Delvco, in compliance with the applicable agreements. In the event that CCI would elect to purchase the lots covered by the 1978 and 1981 leases, the Muscaras were ordered to pay Lanard six percent of the gross sales price. Finally, the trial court determined that Tucker was not a party to any agreement providing any payment from it to Lanard, except as an agent of the Muscaras. Accordingly, the trial court declined to enter any award against Tucker on Lanard’s claims.

In their appeal to our court, the Muscaras raise five separate arguments. First, they maintain that the trial court erred in failing to find that appellee Lanard had breached fiduciary duties to the appellants in that Lanard had allegedly neglected to provide full disclosure to them and had acted in bad faith in the agent or broker relationship it had with them. Second, Lanard argues on appeal that the trial court improperly failed to find that Lanard had either fraudulently misrepresented or concealed changes in the lease documents which provide the basis for the commission claims which Lanard asserted in this case. The fourth contention raised by the appellants in support of their appeal is that the trial court erred in failing to find that pertinent language in the leases, concerning the commissions payable, were the result of a mutual mistake. Our review of the record reveals that in the appellants’ Amended Answer and New Matter, filed in response to the plaintiff’s Amended Complaint, the Muscaras raised claims that Lanard had breached its fiduciary duties, and was guilty of self-dealing and misrepresentation of its role in the transactions. Moreover, the Muscaras alleged that Lanard and its agents materially misrepresented the terms and conditions of the leases with regard to the liability for payment of commissions, and that said representations were relied upon by the Muscaras. Finally, the issue of mutual mistake was also raised by the appellants in their Amended Answer and New Matter.

Our review of the record in this case indicates that some evidence offered by the appellants at trial could be construed as having been submitted in support of the breach of fiduciary responsibility, misrepresentation, mutual mistake and related contentions again presented on this appeal by the appellants. In appellants’ post-trial motions, they again specifically referred to such arguments.

However, the trial court, in findings of fact and opinions it prepared in connection with its disposition of this case, has failed to include any reference to such issues. Accordingly, our court has no basis for determining whether the lower court addressed such contentions, or, if it did, on what basis it rejected such claims.

It is clear that where disputed facts must be resolved, appellate courts should refrain from assuming the role of a fact finder, either to sustain or to reverse the action of the court below. Bearoff v. Bearoff Brothers, Inc., 458 Pa. 494, 327 A.2d 72 (1974). It is inappropriate for the Superior Court to make factual determinations based upon conflicting evidence. Thomas A. Armbruster, Inc. v. Barron, 341 Pa.Super. 409, 491 A.2d 882 (1985). When the resolution of an issue is significant in the determination of an appeal, an appellate court should not attempt to substitute its judgment as a fact finder, but rather, should remand the matter to the trial court or other fact finder which considered the evidence pertinent to the critical questions presented. Big Knob Volunteer Fire Company v. Lowe & Moyer Garage, Inc., 338 Pa.Super. 257, 487 A.2d 953 (1985).

Accordingly, we deem it necessary to order a remand in this case to permit the trial court to consider the issues of breach of fiduciary responsibility, misrepresentation, mutual mistake, and related claims raised by the appellants. Although we may surmise that the trial court considered and rejected such contentions by the Muscaras, the lack of any reference to the subject matter of such claims in the trial court’s findings and opinions does not afford us any basis for reaching a clear conclusion in that regard.

Because it is possible that the trial court may have failed to consider such contentions, in part or in whole, when the trial court considers them on remand, it could determine that a different outcome is appropriate in this case. Therefore, it would not be appropriate for our court to retain jurisdiction of this case pending remand. However, our disposition should not be considered in any manner to be a suggestion to the trial court with respect to its disposition of the issues noted. We have not considered the merits of the appellants’ fiduciary, misrepresentation, mistake or other related claims and arguments. If any party has a desire to bring this dispute before our court after this remand and a disposition of these issues by the trial court, a new appeal must be filed.

This case is remanded to the trial court for further consideration of the issues discussed herein. Jurisdiction is not retained.