text:
    466 A.2d 1060
    Wilfredo MELENDEZ, a minor by his parents and natural guardians, Justino MELENDEZ and Georgina Melendez, and Justino Melendez and Georgina Melendez in their own right, Appellants, v. CITY OF PHILADELPHIA.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1983.
    Filed Oct. 7, 1983.

      Mark Brownstein, Philadelphia, for appellants.
    Jill A. Douthett, Assistant City Solicitor, Philadelphia, for appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   ROWLEY, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County which granted summary judgment in favor of the appellee, City of Philadelphia, and against the appellants, Wilfredo Melendez and his parents Justino and Georgina Melendez.

On September 12, 1976, fifteen year old Wilfredo Melendez was shot in the left eye by his neighbor, Edward Dietzel, during a racial confrontation between the residents of the neighborhood where he and Dietzel both lived in the 2600 block of North Waterloo Street, Philadelphia. A complaint in trespass was filed on October 25, 1977, by the minor appellant and his parents against the City of Philadelphia on the theory that the minor appellant’s injuries were caused by the nonfeasance of the City’s police department and human relations commission, both of which were alleged to have failed to take sufficient and adequate measures to safeguard the lives of the citizens of the neighborhood after having been apprised of racial problems in the community and dangers occasioned thereby to the residents. On January 6, 1978, the City filed a motion for summary judgment on the ground that it owed no special duty to minor appellant or his neighbors to provide them with police protection beyond that which is owed to the public in general, and that, consequently, it could not be held liable for minor appellant’s injuries. The City’s motion was denied on March 31, 1978, per Judge SILVERSTEIN. Minor appellant and his parents were subsequently deposed, and reports prepared by the human relations commission about the time of the incident regarding the racial situation in the neighborhood were made part of the record. In the summer of 1981, the City once again moved for summary judgment arguing anew that the facts viewed in the light most favorable to appellants failed to establish a special duty of protection owed by the City to minor appellant. After review, the trial court per Judge BRAIG entered an order on November 19,1981, granting the City’s request for summary judgment. This appeal followed. We affirm.

Our scope of review when considering a grant of summary judgment was recently reiterated by this Court in Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 431 A.2d 1073 (1981):

In our review of this appeal from the grant of summary judgment, our judicial role has been clearly defined. It was well-stated by Judge Jacobs in Bollinger v. Palmerton Area Communities Endeavor, Inc., 241 Pa.Super. 341, 350, 361 A.2d 676, 680 (1976):
It is well established that we can sustain a summary judgment only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The record must be examined in the light most favorable to the nonmoving party. The court must accept as true all well-pleaded facts in the plaintiffs ... pleadings, giving the plaintiff ... the benefit of all reasonable inferences to be drawn therefrom. Finally, a summary judgment should be granted only when the case is clear and free from doubt. Moreover, in passing upon a motion for summary judgment, it is no part of our function to decide issues of fact but solely to determine whether there is an issue of fact to be tried and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment, (emphasis in original; citations omitted)
See also Pennsylvania Rule of Civil Procedure 1035, 42 Pa.C.S.A., on the subject of summary judgments.
Id., 288 Pa.Superior Ct. at 334-5, 431 A.2d at 1078.

On appeal, appellants contend that material facts are in issue as to 1) whether the city is liable for acts of non feasance of its police officers where those officers were aware of the danger to minor appellant and failed to patrol the neighborhood or properly quell the disturbance which led to minor appellant’s injury, and 2) whether the city had a “special relationship” with the minor appellant which gave rise to a special duty of protection.

Before we can address the question of whether the City is liable for the acts of nonfeasance of its police officers, arguably an issue of first impression for this Court, we must first determine whether the police had a duty to act in this instance. Generally, it is acknowledged that there is no duty resting on a municipality or other governmental body to provide police protection to any particular person. Chapman v. City of Philadelphia, 290 Pa.Super. 281, 434 A.2d 753 (1981); 57 Am.Jur.2d § 251; see also Turner v. United States, 248 U.S. 354, 357-58, 39 S.Ct. 109, 110, 63 L.Ed. 291 (1919). However, where the circumstances establish a “special relationship” between the parties, then an exception to the general rule will be found and an affirmative duty to act will be imposed. In Chapman, supra, a case which also involved the City of Philadelphia, this Court recognized this “special relationship” exception, stating:

The duty of the City of Philadelphia to provide police protection is a public one which may not be claimed by an individual unless a special relationship exists between the city and the individual. Berlin v. Drexel University, 10 Pa. D. & C.3d 319 (1979); 46 A.L.R.3d 1084. A special relationship is generally found to exist only in cases in which an individual is exposed to a special danger and the authorities have undertaken the responsibility to provide adequate protection for him. Berlin v. Drexel, supra; 46 A.L.R.3d 1084. (Emphasis supplied) Id., 290 Pa.Super. at 283, 434 A.2d at 754.

Consequently, whether the City is liable in this case to minor appellant for the nonfeasance of its police force is entirely dependent on whether the minor appellant has shown that a “special relationship” existed between him and the police. Our review of the record convinces us that minor appellant has not met this burden and that Chapman, supra, controls.

Appellants argue on appeal that the general duty owed the public was narrowed into a “special relationship” by the assurance of protection given the residents of the neighborhood by both the human relations commission and the police department, and that this “special relationship” was created between the City and each and every person who lived “in the area” of the 2600 block of North Waterloo Street, including minor appellant. We see little difference between this argument and the argument that was made in Chapman. In Chapman appellant argued that a special relationship existed between the City and all individuals who used the Wayne Junction Railroad Station, of which group appellant’s decedent was a member. This Court in Chapman rejected that argument as urging a duty of protection that was too broad in scope. Appellants attempt to distinguish Chapman on the basis that the group to which the City owed a duty in its case, i.e. the residents of the 2600 block of North Waterloo Street, was a smaller group of people than that found in Chapman, and, consequently, the duty imposed on the City was less “sweeping.” We do not agree.

Although this is an expanding area of the law, see Williams v. State, 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137 (Cal.1983) and Warren v. District of Columbia, 444 A.2d 1 (D.C.App.1981), and although Pennsylvania appellate law in this area is relatively scant, Chapman, supra, the rule almost universally recognized is that the individual claiming a “special relationship” must demonstrate that the police were: 1) aware of the individual’s particular situation or unique status, 2) had knowledge of the potential for the particular harm which the individual suffered, and 3) voluntarily assumed, in light of that knowledge, to protect the individual from the precise harm which was occasioned. None of the cases we have found in other jurisdictions impose a “special relationship” between a municipality and a group of the general public, no matter how narrowly defined the group might be. The focus has been on the individual and whether he or she was owed a specific duty of care. See Trujillo v. City of Albuquerque, 93 N.M. 564, 603 P.2d 303 (App.1979) (no special duty to protect young man from violence in a city park); Sapp v. City of Tallahassee, 348 So.2d 363 (Fla.App.1977) (no special duty to warn motel employee of suspicious persons in motel parking lot); Simpson’s Food Fair, Inc. v. Evansville, 149 Ind.App. 387, 272 N.E.2d 871 (1971) (no special duty owed grocer who claimed he went out of business because of a lack of police protection); Westminster Investing Corp. v. G.C. Murphy Co., 140 U.S.App.D.C. 247, 434 F.2d 521 (1970) (no special duty to protect property during civil disturbance); Keane v. Chicago, 98 Ill.App.2d 460, 240 N.E.2d 321 (1968) (no special duty owed school teacher murdered on school grounds by student); but see Schuster v. New York, 5 N.Y.2d 75, 154 N.E.2d 534, 180 N.Y.S.2d 265 (1958) (special duty owed police informer to assure protection because of status as informer).

Minor appellant and his parents admitted in their depositions that none of them had ever contacted the city’s human relations commission about any racial problems in their neighborhood, nor had they ever expressed to the police any personal feelings of apprehension or fear for their safety. Minor appellant and his mother indicated in their depositions that prior to this incident they had no knowledge of any racial tensions in the community and never requested special police protection. Although neighbors, minor appellant did not know his assailant, and no evidence has been presented to indicate that anyone, including the police or the human relations commission, knew that Edward Dietzel had a gun or that he would use it. Indeed, the record indicates that John Dietzel, son of Edward Dietzel, was the only family member actively participating in the various confrontations prior to the incident which led to minor appellant’s injuries. Minor appellant acknowledged that the police patrolled the area a “couple of times a day,” and that they had been in the neighborhood on the day of the incident. He also admitted that the police arrived “seconds” after he was shot. In view of these undisputed facts, we do not find any narrowing of the public duty so as to find the existence of a “special” duty owed to appellant. Nothing occurred which would have focused the police department’s attention on the minor appellant or his assailant so as to create a special duty. The mere happening of an event, unfortunate as it may be, does not predicate liability.

The two common pleas court cases and the one New Jersey case cited by appellants are not persuasive. In Santucci v. Windber Borough et al., 31 Som.L.J. 289 (Somerset C.P.1975), the police knew that a specific individual who worked at the Penguin Bar in Windber was particularly dangerous, and that there was a strong likelihood that the individual would attempt to harm someone. Also in Santucci, the police had been to the bar on three prior occasions before the shooting, and a superior officer on the police force actively prevented a junior officer from responding to the call for aid occasioned by the Santucci incident. It was under these circumstances, therefore, that the trial court would not rule out a special relationship, nor grant summary judgment. In the case at hand, the police were given no notice that Edward Dietzel was particularly dangerous, nor were they given any reason to assume such a fact. In Barnhart v. Henson, 7 Pa.D. & C.3d 678 (Franklin C.P.1978), the police were specifically notified that a certain individual was being held down at gun point by two other individuals, nevertheless they refused to respond to the call for aid because of a general departmental policy of not entering taverns to quell disputes. In our case the police had no notice that minor appellant was specifically in danger, nor did they fail to respond once the incident was reported. In Wuethrich v. Delia, 134 N.J.Super. 400, 341 A.2d 365 (1975), the court refused to grant a motion to dismiss the complaint for failure to state a claim upon which relief could be granted where, on the day of the shooting, a specific individual was repeatedly reported as “menacing” certain people in a neighborhood with a gun and the police made no attempt to investigate. The court in Wuethrich concluded that where a clear warning of a threat to take life is received the police have a duty to investigate. Perceiving a possible violation of that duty, the Court in Wuethrich refused to grant the motion to dismiss. The situation presented by this case is distinct from that presented in Wuethrich. The police here had no idea Edward Dietzel had a gun or that he was a threat to the community. Likewise, appellants readily admit that when the police were advised of the incident, they did not fail to investigate.

Since the record does not disclose the existence of a factual issue that is material to the question of the City’s liability, the action of the trial court granting summary judgment was not error.

Order affirmed. .

CAVANAUGH, J., concurs in the result.

      . In 1973, our supreme court abrogated the judicially created doctrine of governmental immunity making it possible for governmental units, such as the City of Philadelphia, to be sued for the torts of their servants. In 1978, the legislature enacted the Political Subdivision Tort Claims Act, Act of November 26, 1978, § 101 et seq., formerly 53 P.S. § 5311.101 et seq. (Supp.1981), presently 42 Pa.C.S. § 8541 et seq., which reinstated the immunity of political subdivisions from suit, except in eight areas of activity. The case at hand arose during the five and a half year period between the supreme court’s abrogation of governmental immunity and the legislature’s reinstatement of the same. The fact that no governmental immunity exists does not, however, concede the justice of the tort claim. The basis of the city’s liability still rests upon a showing of fault.

      . We note that, ordinarily, a trial judge should not place himself in the position of overruling a decision by another judge of the same court in the same case. Duffy v. Gerst, 286 Pa.Super. 523, 429 A.2d 645 (1981). However, where, as in this case, new evidence is placed on the record during the interim between the first trial judge’s ruling and the second trial judge's reassessment, it is not improper for the second trial judge to overrule the prior decision of his colleague in light of that new evidence. Accord: Commonwealth v. Eck, 272 Pa.Super. 406, 409, 416 A.2d 520, 522 (1979); Sherman v. Yoder, 59 Pa.Cmwlth. 430, 433, 430 A.2d 347, 349 (1981).

      . ‘‘[F]or ‘nonfeasance’ it is necessary to find some definite relation between the parties ... of such a character that social policy justifies the imposition of a duty to act." W. PROSSER, THE LAW OF TORTS § 56 (4th ed. 1972).


source: Caselaw Access Project

author:
ROWLEY, Judge:
      CAVANAUGH, Judge,

license: Public Domain

text:
    466 A.2d 1065
    COMMONWEALTH of Pennsylvania v. James A. GINNERY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1983.
    Filed Oct. 7, 1983.

      Joseph P. Martone, Erie, for appellant.
    Timothy J. Lucas, Assistant District Attorney, Erie, for Commonwealth appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   ROWLEY, Judge:

Appellant James A. Ginnery, was convicted by a jury of indecent exposure. This is his direct appeal from the judgment of sentence imposed following denial of his post-trial motions. The Commonwealth’s evidence was that in April of 1980 David Dombrowski, age fourteen at the time of trial, was delivering newspapers in the late afternoon in the City of Erie when a man drove up in his car and asked David to come over to the car. When David complied he looked in the car and saw appellant’s penis exposed. David left. David did nothing about the incident but the next day he encountered the same individual who again called him to the car. This time David took down the license plate number and reported the incident to his father resulting in appellant’s eventual arrest. David identified Ginnery at trial as the offender.

On appeal, appellant claims primarily that he is entitled to a new trial on the ground that it was error to permit the Commonwealth to make reference to and to display to the jury a photographic array from which David identified appellant. Appellant also argues that the evidence was insufficient to support the verdict and that the verdict was against the weight of the evidence. None of these contentions have any merit.

The trial judge did not abuse his discretion [Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983) ] in overruling appellant’s objection to testimony at trial regarding the photo line-up and the display of the photo line-up to the jury. Showing these pictures to the jury did not constitute a fact from which “a juror could reasonably infer ... that the accused had engaged in prior criminal activity.” Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972).

The disputed testimony arose when the prosecutor called Detective Barnett of the Erie Police Department. Barnett had determined that the license number was registered to appellant and testified that thereafter he showed a series of photographs to David. There were six photographs, each of a different person with like characteristics. David identified appellant’s photograph as the photograph of the perpetrator. The photographs were presented at trial and objected to by appellant’s counsel. The objection was overruled. The photographs were not, however, marked in evidence or otherwise identified for the record. Nevertheless, the photos, which apparently had some police information, including criminal records, on the reverse side were attached to a file folder so that the information on the back was concealed. They were then exhibited to the jury. The photos were described at the time by appellant’s counsel as looking “terrible”, but were stated by the trial judge not to be “mug prints”. Detective Barnett was one of two witnesses for the Commonwealth and his reference's to the photographs constituted a major portion of his testimony.

In Commonwealth v. Krasner, 285 Pa.Super. 389, 427 A.2d 1169 (1981), an en banc panel of this Court refused to find prejudice in the testimony of a state trooper that a witness had picked the defendant out of a group of six or seven pictures shown to the witness by the trooper. In Commonwealth v. Reiss, 301 Pa.Super. 96, 447 A.2d 259 (1982), Krasner was distinguished on the basis of the number of photographs shown and the place of showing. The Reiss court found that the viewing by the witness of 100 pictures at police headquarters, when revealed to the jury, could reasonably raise an inference that the photographs viewed were “mug shots.” Because only six photographs were involved in appellant’s case, and because they were shown to the victim in his home, we are of the opinion that Krasner rather than Reiss controls this case.

Other cases cited by appellant are distinguishable. Commonwealth v. Dickerson, 267 Pa.Super. 492, 406 A.2d 1149 (1979) and Commonwealth v. Elmore, 241 Pa.Super. 470, 362 A.2d 348 (1976) were based upon the large number of photographs shown (several hundred in each case). Nor is the case of Commonwealth v. Taylor, 460 Pa. 616, 334 A.2d 261 (1975) controlling. In Taylor, a uniquely prejudicial situation resulted from the particularly suggestive nature of certain comments made by the assistant district attorney in his opening statement to the jury combined with the testimony of the victim concerning the photographic identification.

In Commonwealth v. Allen, supra, the Pennsylvania Supreme Court stated that “[t]he suggestion that any reference to a defendant’s photograph is so prejudicial that an inflexible rule of reversal must apply is explicitly rejected.” 448 Pa. at 181, 292 A.2d at 375. The earlier case of Commonwealth v. Luccitti, 295 Pa. 190, 145 A. 85 (1928) was cited as a correct interpretation of the law. In Luccit-ti, photographs in possession of the police were introduced to demonstrate defendant’s change in appearance. The offer was upheld because “[o]n examination of the record, there [was] nothing to indicate that the pictures came from the rogue’s gallery, and the lower court state[d] in its opinion that there was absolutely no markings on the pictures of any kind which would show their use.” Id., 295 Pa. at 199, 145 A. at 89.

Certainly there might be cases where showing pictures to a jury would be prejudicial error. However, this would only be true if there were something in the nature of the photographs themselves, or in testimony referring to them, which might cause a juror to associate them with criminal activity, i.e. if they looked like “mug shots.” Although defense counsel in this case expressed his opinion that the pictures looked “terrible,” he did not elaborate by specifying what he thought was objectionable about them other than by indicating that there was police information on the backs of the photographs. However, the jury was not shown that information. The trial judge examined the pictures and they were attached to a folder so that the information was not visible to the jury. The trial judge also noted that the photographs were not “mug shots.” The pictures were shown to the jury for the valid purpose of corroborating a good, but possibly not perfect, in-court identification of the appellant. There were viewed only in passing and were not sent out with the jury for close inspection. It is quite evident that the trial judge was aware of the potential for prejudice and that he took precautions to avoid it. There is nothing in the record to indicate that he made the incorrect decision. There is nothing about the photographs, as displayed, or the testimony relative to them that warrants an inference of prior criminal activity on the part of appellant. Nor is there anything to indicate that the jury may have engaged in speculation as to the source or nature of the photographs.

Having reviewed the entire record, we are also satisfied that the evidence was more than sufficient to support the jury’s verdict and that the verdict is not contrary to the weight of the evidence. Judgment of sentence affirmed.

CAVANAUGH, J., filed a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent. The question which we address on this appeal is whether reversible error was committed when the trial court permitted photographs of six individuals including appellant to be identified and shown to the jury. Under the circumstances of this case, I believe it is abundantly clear that the jury could reasonably infer from the facts presented that the defendant had engaged in prior criminal activity and that a new trial must be granted.

Appellant James A. Ginnery, was convicted by a jury of indecent exposure and his appeal is from a judgment of sentence following denial of his post-trial motions. The Commonwealth’s evidence was that in April of 1980 David Dombrowski, age fourteen at the time of trial, was delivering newspapers in the late afternoon in the City of Erie when a man drove up in his car and asked him to come over to the car. When Dombrowski complied he looked in the car and saw appellant’s penis exposed and he left. Dom-browski did nothing about the incident but the next day he encountered the same individual who again called him from the car. This time Dombrowski took down the license plate and reported the incident to his father resulting in appellant’s eventual arrest. The minor victim identified Ginnery at trial as the offender. The disputed testimony arose when the prosecutor called Detective Barnett of the Erie Police Department. He determined that the license number was assigned to appellant and testified that thereafter he showed a series of photographs to Dombrowski. There were six photographs of different persons with like characteristics and the witness identified appellant as the perpetrator. These photos were produced at trial and objected to. They were not marked in evidence or otherwise identified for the record. Nevertheless, the photos which apparently had some police information including criminal records on the reverse side were, for that reason, placed on a file folder and shown to the jury. The photos were described at the time by appellant’s counsel as looking “terrible”, but were stated by the trial judge not to be “mug prints”. Detective Barnett was one of two witnesses for the Commonwealth and the references to the photographs represented a major portion of his testimony.

The leading case on the issue of prejudice from reference to photographs from which inferences of prior criminal activity can be drawn is Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). The court held:

We hold that after the reference to a photograph the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity. A mere passing reference to photographs from which a reasonable inference of prior criminal activity cannot properly be drawn does not invalidate the proceedings since there has been no prejudice as a result of the reference; so too, where it appears on the face of the record that there is an explanation of the police possession of the photograph unrelated to any inference of prior criminal activity. Thus, testimony suggesting that the photograph was secured from a school yearbook or from the possession of acquaintances of the defendant illustrates situations where the suspect is not prejudiced by the photographic reference.
It is a fundamental precept of the common law that the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge. It has been succinctly stated that “[t]he purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more liable to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence.” Commonwealth v. Trowery, 211 Pa.Super. 171, 173-174, 235 A.2d 171, 172 (1967). Recognizing the prejudicial effect of such evidence, there is no justification for indirectly allowing the introduction of prior criminal activity by reference to photographs of the accused. Once it is determined that a jury could reasonably conclude from the photographic reference prior criminal activity on the part of the defendant prejudicial error has been committed, (footnote omitted)

The principle of the Allen case has received considerable appellate attention. In Commonwealth v. Krasner, 285 Pa.Super. 389, 427 A.2d 1169 (1981), this court sitting en banc found no reversible prejudice in reference to photos which were not characterized as police photos or mug shots and which were not displayed, marked or otherwise referred to at trial. A majority of a panel of this court, however, in a subsequent case granted a new trial where there was repeated reference in the record to the display of photographs to the victim by a police investigator. The court noted that there had been a large number of photographs submitted to the victim from which the identification was made and also pointed out that reference to the photograph had been made in the court’s charge to the jury. Commonwealth v. Reiss, 301 Pa.Super. 96, 447 A.2d 259 (1982), rehearing denied July 19, 1982. Another relevant post Allen case is Commonwealth v. Dickerson, 267 Pa.Super. 492, 406 A.2d 1149 (1979). In this case there was testimony that the victim was shown photographs at the police station from which an identification was made. A new trial was granted and the court stated that it would be “quite naive” to believe the jury could not reasonably infer the photographs were mug shots.

Examining the principles which emerge from these cases and others, I believe a new trial must be granted. Here, the evidence was not a mere passing reference but played a significant role in the Commonwealth’s calibration of it’s prosecution evidence. It was in fact the chief subject of one of the two Commonwealth’s witnesses’ testimony. The source of the photos was evident since the photographs were taken to the complaining witness’s home by the police detective and, although the court described them as not being mug shots, they were described without contradiction by appellant’s attorney as looking “terrible”. The photos were shown to the jury in a manner necessarily contrived to avoid inspection of the reverse sides, and the identification by the witness took place just four days after the criminal incident. Finally, the court mentioned the photographs in its charge. Under the circumstances, I submit it is unreasonable to conclude that the jurors could fail to reasonably infer that appellant had engaged in prior criminal activity. A new trial should be granted since the presumed effect of the evidence would predispose the minds of the jurors to believe the appellant was guilty and strip him of his presumption of innocence. Commonwealth v. Allen, supra; Commonwealth v. Brunner, 305 Pa.Super. 411, 451 A.2d 714 (1982). Although I find no merit to appellant’s other contentions on appeal, I would grant a new trial.

      . There were two specific photographic references during trial. In his opening address to the jury, the Assistant District Attorney stated:
      "Now it just so happened that Mr. Watts had seen the defendant on other occasions and Watts also happened to be an off-duty police officer and he knew his name. So he supplied the police with the name of the defendant.
      Anyway, at this point the police had been supplied with the name of the defendant. They know who they are looking for. Now Officer Burns recognizes the defendant, he’s been carrying his picture around with him and knows that he’s wanted in connection with this tap room robbery." (Emphasis added).
      The other reference was on cross-examination of Mr. Watts (the victim) and was as follows:
      "By Mr. Fitzpatrick (counsel for defendant)
      Q. Officer Watts, you said that the interview took place inside your home at approximately what time?
      A. Approximately 11:00 o’clock I would imagine.
      Q. Are you sure it didn’t take place inside the 35th District at 11:00 o’clock?
      A. That’s correct. I was at the District during the interview and at home when he brought back photos. He brought the photos to me to look at and identified the defendant from the photos. (The reference to the ‘he’ brought the photos for Officer Watts to look at was to the detective assigned to the case.)” (Emphasis added). Commonwealth v. Taylor, 460 Pa. at 618-19, 334 A.2d at 262.

      . Immediately following the incident, the fourteen year old victim gave a description of the offender and of the offender’s car, including the license plate number. However, he did not at this time include defendant’s beard in the description. The police located the defendant by tracing his car. The photographic identification was made at the victim’s home, four or five days after the incident.

      . See for example: Commonwealth v. Wilson, 257 Pa.Super. 329, 390 A.2d 847 (1978); Commonwealth v. Elmore, 241 Pa.Super. 470, 362 A.2d 348 (1976); Commonwealth v. Sheetz, 233 Pa.Super. 474, 334 A.2d 707 (1975); Commonwealth v. Taylor, 460 Pa. 616, 334 A.2d 261 (1975); Commonwealth v. DeMarco, 225 Pa.Super. 130, 310 A.2d 341 (1973).


author: ROWLEY, Judge: BECK, Judge,

text:
    466 A.2d 1070
    COMMONWEALTH of Pennsylvania v. Clifford MURRAY, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 26, 1983.
    Filed Oct. 7, 1983.

      Donald M. Moser, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   ROWLEY, Judge:

Appellant was convicted, after a non-jury trial, of aggravated assault and possession of an instrument of crime. Trial counsel indicated to the court that he could find no grounds on which to file post-trial motions. Appellant was sentenced to not less than four nor more than ten years imprisonment. Appellant filed a pro se appeal to this court and a Motion for Withdrawal of Counsel, alleging ineffective assistance of counsel for failing to file motions, failing to discuss the case with appellant and allowing a witness to take the stand while under the influence of alcohol. Present counsel was then appointed to represent appellant in this appeal.

Present counsel has concluded that since the issue of ineffectiveness of counsel was not called to the attention of the trial court either during the trial or in post-trial motions, those issues are waived for the purpose of a direct appeal. That is not correct. Since new counsel did not enter this case until after post-trial motions and sentencing, ineffectiveness of trial counsel may properly be raised for the first time on appeal. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Indeed, failure to raise ineffectiveness of trial counsel at this time would result in a waiver of that issue. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

Counsel is correct, however, in concluding that the record now before us is not adequate to permit review of that issue. In such a case, the proper remedy is to remand the record for an evidentiary hearing on the issue of trial counsel’s alleged ineffectiveness. Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978); Commonwealth v. Fields, 317 Pa.Super. 387, 464 A.2d 375 (1983).

In view of our disposition of this issue, we do not believe it is necessary for counsel to withdraw from the case.

Judgment of Sentence vacated. Case remanded for an evidentiary hearing. Jurisdiction relinquished.

BECK, J., filed a concurring statement.

BECK, Judge,

concurring:

I concur in the opinion and judgment of Rowley, J., in this case. I also believe that this court should call attention to the failure of appellant’s counsel to submit a brief properly “referring to anything in the record that might arguably support the appeal.” Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Commonwealth v. Oliver, 479 Pa. 147, 387 A.2d 1266 (1978). Counsel’s “An- ders brief” contains little advocacy on his client’s behalf; it primarily argues that there is no relief available to appellant by raising potential issues and finding them meritless. Pennsylvania courts “have continually condemned this kind of amicus curiae brief.” Commonwealth v. Brockington, 268 Pa.Super. 54, 407 A.2d 433 (1979). Furthermore, counsel included his request to withdraw in the brief, rather than in a separate document as required by Brockington.

By remanding for an evidentiary hearing, the court is not drawing a conclusion as to whether or not this appeal is “wholly frivolous,” as that term is defined in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Therefore, counsel is required to submit an advocate’s brief and petitions to withdraw should be denied. Commonwealth v. Dabrowski, 296 Pa.Super. 515, 442 A.2d 1170 (1982).


author: MONTEMURO, Judge:

text:
    466 A.2d 1071
    COMMONWEALTH of Pennsylvania v. Samuel BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 26, 1983.
    Filed Oct. 7, 1983.

      Daniel P. McElhatton, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

Appellant, Samual Brown, was arrested on April 30, 1981 and charged with burglary, criminal conspiracy and criminal trespass. Appellant was tried without a jury before the Honorable Nicholas A. D’Alessandro, Court of Common Pleas, Philadelphia County, and was found guilty on all charges. Appellant was sentenced to two (2) to four (4) years imprisonment for burglary; two (2) to four (4) years imprisonment for criminal conspiracy; and six (6) months to one (1) year for criminal trespass; the sentences to be served concurrently.

On April 30, 1981, one Officer John Stankiewicz of the Philadelphia Police Department observed the appellant and two other men climb through a hole in a fence and approach a warehouse owned by the Zion Non-Profit Charitable Trust. The warehouse was located in the vicinity of 12th and Glenwood Streets in Philadelphia. The men tried to open the warehouse door. Eventually, the appellant and one of the other men forced the door open with their shoulders. All three men entered the warehouse. From the outside of the building, Officer Stankiewicz and his partner watched the three men for a few minutes rummaging through goods which were stored inside. After approximately five minutes, the police officers entered the warehouse. The three men immediately ran. One ran out of the building and the appellant and one other remained inside. Following a canine search of the warehouse, the appellant and one of the other men were apprehended by the police.

On appeal it is argued (1) that trial counsel was ineffective for failing to object when the trial court sentenced appellant on the charges of burglary and criminal trespass when both charges stemmed from the same criminal act; and (2) that the evidence was insufficient to support the burglary conviction and that counsel was ineffective in failing to raise this issue in post-trial motions.

The standard of review for each of these arguments is the same. In determining whether counsel was ineffective, our first inquiry is whether the underlying claim which counsel failed to raise is of arguable merit, Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), and if so, whether there was some reasonable basis for counsel’s action designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

The appellant claims, and the Commonwealth concedes, that counsel was ineffective in failing to object to appellant’s sentence for the crime of criminal trespass. We agree with the appellant on the basis of our decision in Commonwealth v. Franklin, 306 Pa.Super. 422, 452 A.2d 797 (1982), in which we held that although criminal trespass is not a lesser included offense of burglary, the two crimes merge for purposes of sentencing when both crimes stem from the same act.

In the instant case, the charges of criminal. trespass and burglary arose from the single unlawful entry into the warehouse. Consequently, these crimes merge and the trial court erred in imposing separate sentences for each crime. Appellant’s counsel could have had no reasonable basis for failing to object to this illegal sentence and, in this respect, counsel was ineffective.

Accordingly, we vacate the judgment of sentence for criminal trespass. Because the sentence for the less serious crime of criminal trespass did not influence the sentences for burglary and criminal conspiracy we need not remand for sentencing. Commonwealth v. Franklin, supra, 306 Pa.Superior Ct. at 430, 452 A.2d at 801, quoting Commonwealth v. Cadogan, 297 Pa.Super. 405, 407-409, 443 A.2d 1185, 1186-87 (1982).

Appellant’s next argument is that counsel was ineffective in failing to file and argue post-trial motions challenging the sufficiency of evidence for his burglary conviction.

Burglary is defined as follows at 18 Pa.C.S.A. § 3502(a): Offense defined. —A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.

In determining the sufficiency of evidence, the test is:

Whether, accepting as true all of the evidence of the Commonwealth and all reasonable inferences arising therefrom, upon which, if believed, a finder of fact could properly have based its verdict, such evidence was sufficient in law to prove the elements of the crime in question beyond a reasonable doubt.

Commonwealth v. Segers, 460 Pa. 149, 157, 331 A.2d 462, 466 (1975). Furthermore, this standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977). Moreover, trial counsel cannot be deemed ineffective for failing to raise sufficiency of evidence motions where evidence was clearly sufficient to support the conviction. Commonwealth v. Young, 280 Pa.Super. 393, 421 A.2d 779 (1980).

Following a review of the record, we are satisfied that the Commonwealth produced a sufficient amount of evidence to prove the appellant’s guilt beyond a reasonable doubt. Consequently, we do not find that counsel was ineffective for failing to file post-trial motions in this matter.

Judgment of sentence for criminal trespass is vacated. Judgments of sentence for burglary and criminal conspiracy are affirmed.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 3503.


author: WATKINS, Judge:

text:
    466 A.2d 1074
    COMMONWEALTH of Pennsylvania v. Christopher GREEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 13, 1983.
    Filed Oct. 7, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

In this appeal, the defendant-appellant, Christopher Green, was sentenced by the Court of Common Pleas of Philadelphia County after entering a guilty plea to nine counts of robbery, one count each of conspiracy and possession of an instrument of crime.

He was sentenced on May 15, 1981 at which time he was advised that if he wished to appeal, he was required to do so within thirty (30) days of the sentence. He did not file his pro se appeal until August 12, 1981.

Pa.R.A.P. 903(a) provides that a notice of appeal be filed within thirty (30) days after the entry of the order from which the appeal is taken.

This appeal was untimely filed so it must be quashed. Commonwealth v. Riebow, 299 Pa.Superior Ct. 458, 445 A.2d 1219 (1982). It should be noted that the mere filing of a petition for reconsideration does not toll the running of the thirty day appeal period. Commonwealth v. Lee, 278 Pa.Superior Ct. 609, 420 A.2d 708 (1980); Commonwealth v. Pinkney, 267 Pa.Superior Ct. 288, 406 A.2d 1045 (1979).

Appeal quashed.


author: HOFFMAN, Judge:

text:
    466 A.2d 1075
    Nancy D.L. BRENCKLE v. Nancy J. ARBLASTER and Lawrence C. Arblaster, her husband; Arnetta M. Andrews and Norman Andrews, her husband; Loretta Hutchins and Richard Hutchins, her husband; Arnetta M. Andrews and Nancy J. Arblaster, Executrices under the Last Will and Testament of Lawrence E. Brenckle, Deceased. Appeal of Arnetta ANDREWS and Loretta Hutchins. In re ESTATE OF Lawrence E. BRENCKLE. Appeal of Arnetta ANDREWS and Loretta Hutchins.
    Superior Court of Pennsylvania.
    Argued April 27, 1983.
    Filed Oct. 7, 1983.
    Petition for Allowance of Appeal Denied Feb. 7, 1984.

      Charles F. Gilchrest, Sharon, for appellants.
    David Goodwin, Sharon, for Nancy D.L. Brenckle, appel-lee (at No. 715) and participating party (at No. 716).
    David W. Ketler, Grove City, no appearance enter nor brief submitted on behalf of Nancy Arblaster, appellee (at No. 715) and participating party (at No. 716).
    Milford L. McBride, Jr., Grove City, for Barbour, participating parties.
    Richard Alan Peterson, Greenville, for Strout Realty, participating party.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the lower court erred in denying their request for a jury trial in declaratory judgment proceedings used to resolve an estate dispute, and in imposing sanctions of counsel fees, costs, and punitive damages against their respective shares of the estate. These contentions lack merit. Accordingly, we affirm.

The testator executed a will on October 12, 1972 naming his three daughters—appellants Arnetta Andrews and Loretta Hutchins and appellee Nancy Arblaster—as co-executrices and leaving his probate estate to be divided equally among them. In 1977, he married appellee Nancy Brenckle and subsequently executed deeds for his realty naming her as co-tenant by the entireties. He died on July 8, 1979, survived by Nancy Brenckle and the three daughters.

A few weeks later, Nancy Brenckle and the three daughters executed a “Family Agreement” to dispose of the estate. Nancy Brenckle complied with her obligations by preparing to move out of the testator’s residence in anticipation of a flat sum cash payment, but the daughters could not agree upon the division of the realty. On August 31, 1979, the co-executrices advanced Nancy Brenckle part of her share to make a downpayment on a mobile home, but on September 4, Arnetta stopped payment on the check. Because of the continuing disagreement, Nancy Brenckle filed a complaint to quiet title to the estate on December 28, 1979.

The court then appointed Northwest Bank to administer the estate. After a pretrial conference on May 2, 1980, the court ordered the testator’s residence and its 11-acre plot to be listed with Strout Realty for three months at $120,000. Although agreeing at the conference, appellants refused to sign the listing agreement. Upon appellants’ motion, the court modified its order on June 23, 1980 to permit any party to purchase the property free of realtor’s commission before its sale to an outsider, and to create an escrow against Nancy Brenckle’s share of the estate. Appellants then signed, the property was listed, and three months passed with no bids. The lower court then permitted Strout to list the property at market value. Strout obtained a buyer, Haun, offering $98,500, but Haun was prevented from closing when appellants refused to sign the deed. Appellants alleged Haun, whom they knew had already obtained a mortgage commitment from his bank, was financially irresponsible. Strout then obtained another buyer, appellee Barbour, offering $85,000, but Barbour was prevented from closing when appellants refused to sign the deed, alleging that mineral rights were not properly conveyed. Appellants then offered $85,100, but the lower court found this offer in bad faith. The court then ordered, and appellants agreed to and participated in, a sealed-bid procedure on November 26, 1980. Barbour, offering $91,-175, outbid appellants, and the court ordered the deed signed within fourteen days. Appellants refused, contrary to their attorney’s advice, and then when Barbour withdrew his bid after the fourteen days, they petitioned to have the court honor their second-place bid. Nancy Brenckle filed a petition that appellants be held in contempt.

On January 15, 1981, the lower court issued a decree nisi awarding the realty to Barbour, but later recused before resolving exceptions. Meanwhile, Northwest Bank had filed its final accounting of the estate, and Nancy Brenckle petitioned for confirmation. The various parties and participants also filed cross-petitions for costs, fees, and sanctions. On May 3, 1981, Nancy Brenckle petitioned that all matters relating to the action be resolved by declaratory judgment. Appellants petitioned for a jury trial. After the recusal of one judge and the appointment of another, the lower court denied the request for a jury trial. Further petitions were filed, and a bench trial held on November 5-6, 1981. The court issued its decree nisi on March 3, 1982, and its final decree on March 7. The decree vacated the family agreement and all prior court orders and granted Nancy Brenckle the realty as surviving tenant by the entireties and a widow’s share of the probate estate. It approved a stipulated agreement between Nancy Brenckle and the daughter Nancy Arblaster. Upon a finding of fact that appellants had engaged in “blatant, obviant, arbitrary, and vexatious conduct ... designed to frustrate ... a series of court orders,” the court imposed sanctions against appellants, all chargeable to their respective shares of the estate. This appeal followed.

Appellants contend the lower court erred in denying their request for a jury trial. Specifically, they contend that the questions about the family agreement were contractual, and thus assumpsit matters, and that the petitions for costs and sanctions alleged tortious conduct, and thus were in trespass, so as to give rise to a right to a jury trial. These contentions lack merit. The Pennsylvania Constitution provides, “trial by jury shall be as heretofore, and the right thereof shall remain inviolate.” Article I, § 6 (emphasis added). Quiet title actions, however, are traditionally, and thus constitutionally, resolved “by a judge sitting without a jury.” Pa.R.Civ.P. 1067; White v. Young, 409 Pa. 562, 186 A.2d 919 (1963). Similarly, review of an administrator’s account for an estate is within equity jurisdiction, and thus for the court. Schwab v. Miller, 302 Pa. 507, 153 A. 731 (1931). Declaratory judgment procedures afford no independent rights to a jury trial other than those arising from the underlying action. 42 Pa.C.S.A. § 7539; Pa.R. Civ.P. 1602. Here the underlying quiet title and estate action did not require a jury trial. Although the family agreement was contractual, because it affected the real property its validity is a proper subject of the quiet title action. Pa.R.Civ.P. 1601(b). The various petitions for costs and sanctions did not change the nature of the action, but were addressed to the court’s power to administer orderly litigation. Accordingly, the lower court properly denied appellants’ request for a jury trial.

Appellants contend that the lower court erred in requiring them to pay Strout Realty’s commission and Barbour’s costs of bidding for the property. Appellants argue that neither Strout nor Barbour were parties permitted to recover costs and that Strout’s and Barbour’s petitions were an improper means to commence what appellants allege should have been separate actions for damages to be instituted by complaints. These contentions lack merit. The allowance of costs in equity is with the trial court’s sound discretion. Gold & Co. v. Northeast Theater Corp., 281 Pa.Superior Ct. 69, 421 A.2d 1151 (1980). Ordinarily, costs relating to the existence, possession, or disposition of a fund should be borne by the fund. 42 Pa.C.S.A. § 1726(2)(i). However, the court may shift responsibility for costs as a penalty for violation of general rules or rules of court. Id. (3). Here, the court shifted responsibility for the cost of Strout’s commission and Barbour’s bidding from the estate to appellants’ share of the estate. Both Strout and Barbour became participants in the action pursuant to the court orders for listing the realty and for the sealed-bid procedure. They complied with the orders, but instead of recovering their costs from completion of the transactions, they were prevented from doing so by appellants repeated bad faith refusals to sign the deed. Strout and Barbour thus petitioned the court for their costs, and the lower court, within its discretion, placed those costs on appellants’ share of the estate. Accordingly, we will not disturb this portion of the court’s order.

Appellants contend finally that the lower court erred in requiring them to pay Nancy Brenckle’s and Nancy Arblaster’s counsel fees. Appellant Arnetta Andrews further contends that the lower court erred in requiring her to pay punitive damages. Specifically, appellants argue that the record does not support the court’s finding of arbitrary, vexatious, and outrageous bad faith conduct so as to justify these sanctions against appellants’ share of the estate. We disagree. The court may require a party to pay another participant’s counsel fees if the party’s conduct during the pendency of the matter was “dilatory, obdurate, or vexatious,” or if the party’s conduct in commencing the action or otherwise was “arbitrary, vexatious or in bad faith.” 42 Pa.C.S.A. § 2503; In re Roos’ Estate, 305 Pa.Superior Ct. 86, 451 A.2d 255 (1982). If the record supports the court’s finding of fact that conduct was in bad faith, the court’s award of counsel’s fees will not be disturbed absent an abuse of discretion. See Shearer v. Moore, 277 Pa.Superior Ct. 70, 419 A.2d 665 (1980). Punitive damages are allowed when “the act which creates actual damage also imports insult or outrage, and is committed with a view to oppress, or appears to have been committed in contempt of [the other’s] rights.” Golomb v. Korus, 261 Pa.Superior Ct. 344, 347, 396 A.2d 430, 431 (1978). Here, the record supports the lower court’s findings that appellants’ conduct was arbitrary, vexatious, and in bad faith, and that the conduct of those who received the counsel fees and damage award was appropriate. Evidence indicated that Arnetta Andrews never intended to comply with the family agreement, even though she did take initial steps to acquire the property under it. Further, she victimized Nancy Brenckle by unilaterally stopping payment on the check Ms. Brenckle had used as down payment on the mobile home. Then, during the litigation, appellants, after having agreed to the procedure for listing the realty, twice refused to sign the deed at the last moment after a buyer was obtained. They asserted colorable legal claims both times, but the record reveals that they knew their arguments, that Haun was financially irresponsible and that Barbour’s deed did not adequately provide for mineral rights, were factually frivolous. Additionally, they gave no opportunity to the other parties to contest the assertions before the scheduled closings. Finally, after agreeing to and participating in the sealed-bid procedure, appellants defied a specific court order to sign the deed. This conduct supports the court’s finding of bad faith obstruction of a series of court orders, and thus justifies the court’s award of counsel fees to be charged against appellants’ shares of the estate. The record also indicates that Arnetta Andrews initiated the obstructionist conduct, thus justifying the award of punitive damages against her. Accordingly, we affirm the lower court’s order.

Affirmed.


author: CAVANAUGH, Judge:

text:
    466 A.2d 1079
    COMMONWEALTH of Pennsylvania v. Mark CRAWFORD, a/k/a Eleuterio Rivera, Appellant.
    Superior Court of Pennsylvania.
    Argued March 2, 1983.
    Filed Oct. 14, 1983.

      Ruth R. Shafer, Media, for appellant.
    Andrew S. Kovach, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CAVANAUGH and WIEAND, JJ.
   CAVANAUGH, Judge:

This is an appeal from judgment of sentence entered after appellant Crawford, also known as Chuck Rivera, was convicted of burglary following a non-jury trial. The appellant makes several alternate claims that the lower court improperly denied his pretrial motion to suppress certain evidence of the burglary. We, however, agree with the lower court and affirm.

In this case, appellant was convicted of the January 27, 1981, burglary of a Delaware County (hereinafter “Tel-gheider”) residence. However, the facts leading up to appellant’s arrest first involved the January 23, 1981, burglary of a Philadelphia County (hereinafter “Gaudiosi”) residence.

With respect to the Gaudiosi burglary, appellant was stopped at 11:50 a.m., on January 28, 1981, in the neighborhood of the burglary, by Philadelphia police who noticed that appellant and his car fit the description of a car and driver seen at the time and place of this crime. Upon approaching the car, the officer noticed that appellant was wearing unusual jewelry, which fit the description of jewelry taken from the Gaudiosi residence. Based on this, appellant was taken to the police station, where he was questioned by the detective working on the Gaudiosi case. The questioning initially covered identification of appellant, including the address of his residence, and later involved questions relating to the burglary itself.

At 6:00 p.m., Mr. Gaudiosi, the victim of the burglary, positively identified the jewelry as his, and at 10:00 p.m., appellant was arraigned. A nighttime search warrant was then issued at 2:00 a.m., January 29, to search No. 1022 South Cleveland St., which was identified in the warrant affidavit as appellant’s residence. This warrant was executed thirty minutes later, and yielded, among other things, evidence of the Telgheider burglary, for which the appellant was convicted in this case.

Appellant’s first three arguments are alternate claims that the affidavit supporting the search warrant is insufficient to provide probable cause to search No. 1022 South Cleveland St., and that the evidence of the Telgheider burglary, being derived from this search, was tainted and should have been suppressed. The warrant affidavit reads in pertinent part as follows:

NIGHT TIME SEARCH REQUESTED:
Probable cause belief is based on the following facts and circumstances
On, Friday, 1-23-81 Approx. 9:25 PM. complainant A1 Gaudiosi, W/M Age 57 Yrs, 7000 Greenhill Rd. Reported to police 19th. Dist. that his residence was burglarized by unknown person or person,s who force dinning room window. Taken from prem. was a large amount of items consisting of jewelry, silver-waer mantle clock and coin set,s. On, Wednesday, 3-28-81 Approx. 10:00 PM. Det. Joseph Berner # 9224 WDD. arrested Chuck Rivera N/M 1022 S. Cleveland St. after accused was found to have possession of two items listed as stolen in Mr. A1 Gaudiosi burglary reported to police on Friday 1-23-81 These items were identify as being stolen by A1 Gaudiosi inside his residence on Wed. 1-28-81 Approx. 4:00 P.M. Present Det. Joseph Berner # 9224. It,s requested that a search warrant be issued for the residence of accused Chuck Rivera, 1022 S. Cleveland St. to locate and seized other possible stolen articles taken in complainant burglary and to use same as evidence against defendant. Also to return stolen articles to lawful owners. I, Det. Joseph Berner due stated that the facts are true and correct in this affidavit to the best of my knowledge and belief. NIGHT TIME SEARCH REQUEST TO PREVENT RE-OVAL OF STOLEN ARTICLE BY ACCUSED OR OTHERS.
Signature of Affiant
/s/ Det. Joseph Berner

Appellant first contends that the warrant affidavit fails to establish probable cause to search the premises at No. 1022 South Cleveland St., since it does not indicate the factual basis of affiant’s assertion that this address is appellant’s residence.

It is well established that a search warrant affidavit must contain sufficient facts to permit the issuing judge to conclude with reasonable certainty that a crime has been committed and that evidence or fruits thereof may be found on the premises to be searched. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Commonwealth v. Luddy, 281 Pa.Super. 541, 422 A.2d 601 (1980), cert. denied, 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99 (1981). However, the affidavit should be read in a commonsense and reasonable fashion, rather than with a grudging and negative attitude. Illinois v. Gates, supra; United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Commonwealth v. Hutchinson, 290 Pa.Super. 254, 434 A.2d 740 (1981). To require the affidavit to set forth the underlying facts and circumstances ad infinitum would be unreasonable. Although in this case the suspect’s residence is simply identified as No. 1022 South Cleveland St., the crucial facts, which are that appellant was caught in possession of a small part of a large quantity of recently stolen property, were fully set forth for the issuing judge. We find this averment sufficient without further facts supporting the collateral assertion that No. 1022 South Cleveland Street was appellant’s residence.

Appellant next argues that the warrant should not have issued because the affidavit does not connect the stolen property with his residence. However, as previously noted, the affidavit states that the stolen jewelry found in appellant’s possession at the time of his arrest was only a small part of the property stolen just five days earlier. In view of the bulk of property stolen, which included silverware, a mantle clock and a coin collection, it was reasonable for the issuing judge to conclude that it would not be concealed on appellant’s person, but rather in a place under his control, such as his residence. Further, because only a short time had elapsed since the burglary, it was reasonable to conclude that the property had not yet been disposed of. See Commonwealth v. Hutchinson, supra. Compare Commonwealth v. Heyward, 248 Pa.Super. 465, 375 A.2d 191 (1977) (unreasonable to infer that stolen automobile titles would be located in suspect’s house more than two years after theft).

Appellant next argues that the warrant affidavit does not justify a nighttime search of his residence. Pennsylvania Rule of Criminal Procedure 2003(c) provides that “[n]o search warrant shall authorize a nighttime search unless the affidavits show reasonable cause for such nighttime search.” In this case, appellant was in police custody under arrest. The application for the search warrant was made in the middle of the night. The very real possibility existed that appellant’s fate had become known or would become known before the night was over, and that this would prompt removal of the stolen property by others. Reasonable cause was, thus, established for the expeditious, nighttime search. Commonwealth v. Baldwin, 253 Pa.Super. 1, 384 A.2d 945 (1978).

Appellant’s final contention is that his name and address were illegally obtained because he gave this information during a period of police custody which violated the six hour rule of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Assuming, arguendo, that Davenport was violated, preliminary questions, such as name and address, go to identity and do not solicit the type of inculpatory response contemplated by the exclusionary rule of Davenport. See Commonwealth v. Davis, 460 Pa. 37, 331 A.2d 406 (1975); Commonwealth v. Bey, 294 Pa.Super. 229, 439 A.2d 1175 (1982).

Since we find no error in the rulings of the lower court, we affirm.

      . We note that even where a nighttime search is not supported by the affidavit, suppression of evidence so obtained is not necessarily, as appellant suggests, the appropriate remedy. See Commonwealth v. Johnson and Henry, 315 Pa.Super. 579, 462 A.2d 743 (1983).


author: BROSKY, Justice:

text:
    466 A.2d 1082
    COMMONWEALTH of Pennsylvania v. James WELDON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 19, 1983.
    Filed Oct. 14, 1983.

      Michael Alan Klimpl, Doylestown, for appellant.
    Michael J. Kane, District Attorney, Doylestown, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   BROSKY, Justice:

The sole issue in this appeal from appellant’s conviction on charges of burglary, theft, receiving stolen property and conspiracy is whether the sentence imposed on him is excessive. For the reasons that follow, we remand for resentenc-ing.

Appellant was tried and convicted in January, 1979. An appeal was taken from that conviction at which time appellant argued that the conviction was not supported by sufficient evidence and that the sentence imposed on him was excessive. We affirmed the conviction, but remanded for resentencing because the sentencing court had not ordered a pre-sentence report, nor explained its reasons for not doing so. Nor had the court explained on the record its reasons for imposing the sentence it did. Commonwealth v. Weldon, 287 Pa.Super. 533, 430 A.2d 1180 (1980).

On remand, the court ordered a pre-sentence report and held another sentencing hearing. At that hearing the court referred generally to the pre-sentence report and said that it was to be incorporated into the record of the proceedings.

The court again sentenced appellant to a term of imprisonment of 2 to 5 years and explained its reasons as follows:

I stated earlier, and I repeat now, that this was a burglary in a residential area far removed from the defendant’s home. It was a burglary during, my recollection is, the daylight hours. The owner of the home came in and there could well have been violence. But, of course, none took place.
In my opinion, and in accordance with the dictates of the Sentencing Code, it is the type of crime that unless a sentence of the nature that I am about to impose would be placed upon the defendant, it would depreciate the seriousness of the crime that was committed. There is no doubt in my mind that this defendant was involved in this.
Part of rehabilitation is acknowledging that one has done wrong. I note that he contends he was not involved, even though the evidence of his involvement was overwhelming and the jury had no difficulty in so concluding.

The trial court did indicate that it received information in the pre-sentence report that convinced it that a term of incarceration was warranted. The court did not, however, amplify upon that statement and did not discuss what information had influenced its decision.

It is well settled that the imposition of sentence is left to the discretion of the sentencing court. Commonwealth v. Cottle, 493 Pa. 377, 426 A.2d 598 (1981); Commonwealth v. High, 304 Pa.Super. 174, 450 A.2d 158 (1982).

The sentencing court must state on the record its reasons for the sentence imposed. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Maxwell, 280 Pa.Super. 235, 421 A.2d 699 (1980). Furthermore, as we explained in Weldon, supra, 287 Pa.Super. at 537, 430 A.2d at 1182.

The sentence must be imposed for the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. See 18 Pa.C.S. § 1321(b) (Supp.1975). At least two factors are crucial to such determination—the particular circumstances of the offense and the character of the defendant. Pa.R.Crim.P. 1403(a)(2) provides that all pre-sentence reports shall include such information. We hold that regardless whether a pre-sentence report is ordered, the sentencing court must at least consider these two factors in its sentencing determination. Failure to give such individualized consideration requires that these sentences be vacated. (Footnote omitted).

As was the case when we first remanded this case for resentencing, the sentencing court has not indicated that it has considered the character of the defendant.

The court has considered the seriousness of the crime, but it has not explained to us what it perceives to be the character of the appellant and why it has decided that he should be incarcerated, as opposed to a lesser form of punishment. See Commonwealth v. High, supra.

Nor does the fact that the sentencing court ordered a pre-sentence report absolve it of the responsibility to state on the record its reasons for sentence. As our Supreme Court explained in Riggins, supra, 474 Pa. at 129, 377 A.2d at 147 one of the advantages of requiring the sentencing court to state on the record its reasons for sentence is that such a statement “will minimize the risk of reliance upon inaccurate information contained in the pre-sentence report.”

In Commonwealth v. Wicks, 265 Pa.Super. 305, 313, 401 A.2d 1223, 1227 (1979) we said, “Having received the testimony and pre-sentence report, the court must evaluate them; the testimony may well be in conflict, or not be credible, or otherwise not acceptable to the court, and the same may be so of the contents of the pre-sentence report.” See Wicks generally as to the need to explain the reasons for sentence.

Without an adequate statement of reasons, we cannot determine whether the sentence was excessive. See Wicks, supra, 265 Pa.Superior Ct. at 314 n. 8, 401 A.2d at 1227 n. 8.

We refer the sentencing court to Wicks and Riggins, supra and remand this case for resentencing at which time the court is to explain on the record the individualized consideration it has given to the sentence. Jurisdiction is relinquished.


author: ROWLEY, Judge:

text:
    466 A.2d 1084
    Constance RICHARDSON v. CHARLES COLE MEMORIAL HOSPITAL, Appellant.
    Superior Court of Pennsylvania.
    Argued May 26, 1983.
    Filed Oct. 14, 1983.
    Petition for Allowance of Appeal Granted Mar. 7, 1984.

      Michael J. Reilly, Pittsburgh, for appellant.
    William A. Behe, Wellsboro, submitted a brief for appel-lee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   ROWLEY, Judge:

Constance Richardson, appellee, filed this action in as-sumpsit against Charles Cole Memorial Hospital, alleging breach of an employment contract. After a non-jury trial, a verdict was returned for appellee. Exceptions were filed, argued and disposed of. Judgment for appellee was entered in the amount of $12,489.96, plus costs.

Appellant originally hired appellee in April of 1974 as assistant director of nursing and director of inservice education. On December 2, 1975, appellee was appointed director of nursing. On February 21, 1978, her employment was terminated.

Appellee’s own testimony established that she was hired under an oral contract of indefinite duration. Under Pennsylvania law, where no clear mandate of public policy has been violated, an employee at will has no right of action against his employer for wrongful discharge. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). No argument has been made in this case that any public policy was violated by appellee’s discharge.

However, appellee argued, and the trial court concluded, that an employee handbook issued by appellant constituted part of appellee’s contract of employment. Appellee claims that the handbook established a definite tenure of employment, since it contained a statement that it was the policy of the hospital “to provide continual employment to all employees whose work proves satisfactory”. The handbook also provided for a probationary period of employment, a disciplinary procedure and a grievance procedure. The court specifically found as a fact that the handbook applied to appellee. It based this finding on the testimony of appellee and her witnesses. It is interesting to note, however, that the court conceded that certain provisions of the handbook clearly had no application to appellee. It also concluded that appellee was not required to file a grievance pursuant to the grievance procedure set out in the handbook. The court concluded that appellant breached the terms of its “employment contract” with appellee, as set forth in the employee handbook, when it terminated her employment without just cause.

We hold that, even assuming that the handbook applied to appellee, the court erred in concluding that the policies set forth in the employee handbook constituted part of appel-lee’s contract of employment.

In Beider v. W.R. Grace, Inc., 461 F.Supp. 1013 (E.D.Pa.1978), affd 609 F.2d 500 (3rd Cir.1979), the federal district court held that under Pennsylvania law, failure to adhere to a company personnel policy does not create a cause of action for breach of an employment contract. We agree with that holding.

Appellant’s unilateral act of publishing its policies did not amount to the “meeting of the minds” required for a contract. The terms of the handbook were not bargained for by the parties and any benefits conferred by it were mere gratuities. See Johnson v. National Beef Packing Co., 220 Kan. 52, 551 P.2d 779 (1976). In fact, the handbook was unilaterally revised by appellant twice during appellee’s employment.

The record in this case clearly indicates that appellee’s employment was terminable at will by either party. Therefore, appellant is not liable for breach of contract as a result of appellee’s discharge.

Because of our disposition of this question, we do not need to discuss the other issues raised by appellant.

Judgment reversed.


author: WIEAND, Judge:

text:
    466 A.2d 1086
    COMMONWEALTH of Pennsylvania v. Talmadge GARWOOD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Oct. 14, 1983.
    Petition for Allowance of Appeal Denied Dec. 27, 1983.

      Steven Dickstein, Philadelphia, for appellant.
    Gaele McGlaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER and WIEAND, JJ.
   WIEAND, Judge:

Talmadge Garwood was tried by jury and found guilty of two counts of aggravated assault and one count of possessing an instrument of crime in connection with a double shooting in Philadelphia. Prior to trial Garwood attempted to waive trial by jury in' order to be tried by the court sitting without a jury. The Commonwealth opposed a bench trial and asserted a right to demand trial by jury in accordance with the provisions of 42 Pa.C.S. § 5104(c). The trial court denied appellant’s request for a trial without jury because of the Commonwealth’s demand for a jury trial under the statutory guarantee aforesaid. An appeal was taken to this Court from the judgment of sentence. The sole argument advanced on appeal was that the statutory provision giving the Commonwealth the right to demand a jury trial conflicted with Pa.R.Crim.P. 1101 and was invalid because it infringed upon the procedural rule making power of the Supreme Court. Because the appeal presented a constitutional challenge to 42 Pa.C.S. § 5104(c), this Court certified the constitutional issue to the Supreme Court for decision.

On December 30, 1982, in Commonwealth v. Sorrell, et al., 500 Pa. 355, 456 A.2d 1326 (1982), the Supreme Court held that the statute was unconstitutional and that the trial court’s reliance thereon to deny appellant’s request for a nonjury trial had been erroneous. The record was remanded to the Superior Court for further proceedings. Inasmuch as the only issue in the instant appeal was that decided by the Supreme Court, we are required to reverse the judgment of sentence and remand for a new trial. This is the same relief which has been granted in other cases where appeals were pending in which the trial court relied upon 42 Pa.C.S. § 5104(c) to deny a defense request for trial without jury. See: Commonwealth v. Sherman, 318 Pa. Super. 440, 465 A.2d 35 (1983); Commonwealth v. Maxwell, 312 Pa.Super. 557, 459 A.2d 362 (1983); Commonwealth v. Giaccio, 311 Pa.Super. 259, 457 A.2d 875 (1983).

Because the caption on appellant’s notice of appeal contains errors and has included cases to which the Supreme Court decision in Commonwealth v. Sorrell, supra, can have no application, we must define the scope of the new trial which is being granted.

Appellant concedes that he is not entitled in this appeal to a new trial in cases numbered 1155 and 1157 June Term, 1977 in the Court of Common Pleas of Philadelphia. The judgment of sentence in those cases was entered following pleas of guilty to offenses arising out of a separate stabbing incident, and the numbers of those cases were erroneously included in the notice of appeal.

The notice of appeal contains also a reference to No. 907 July Term, 1977. This, too, is erroneous, for those proceedings, as appellant concedes, are not involved in any way in the instant appeal.

Relief in the form of a new trial must be limited to charges of aggravated assault arising from the shootings of Walter Wallace and Gregory DuPont. These are the charges filed to Nos. 861 July Term, 1977 and 1505 May Term, 1977, in which the trial court denied Garwood’s request for trial without jury.

It is also necessary to make reference to the judgment of sentence imposed at No. 862 July Term, 1977, where the information charged and appellant was convicted of possessing an instrument of crime. This case, although tried with No. 1505’ May Term, 1977 and No. 861 July Term, 1977, was not included in the notice of appeal. If this was an inadvertent error, it has never been corrected by amendment. Because no appeal has been filed from the judgment of sentence imposed in No. 862 July Term, 1977, this Court has no jurisdiction to award a new trial with respect thereto. See: Commonwealth v. Keys, 313 Pa.Super. 410, 413-15, 460 A.2d 253, 254-255 (1983); Commonwealth v. Dozier, 294 Pa.Super. 249, 252 n. 1, 439 A.2d 1185, 1186-1187 n. 1 (1982); Commonwealth v. Hill, 267 Pa.Super. 140, 142 n. 1, 406 A.2d 558, 559 n. 1 (1979).

The judgments of sentence at No. 1505 May Term, 1977 and No. 861 July Term, 1977 are reversed, and in those cases a new trial is ordered.

      . 18 Pa.C.S. § 2702.

      . 18 Pa.C.S. § 907.

      . This statute provided: "In criminal cases the Commonwealth shall have the same right to trial by jury as does the accused."

      . Garwood failed to file a timely appeal from the judgment of sentence but later filed a pro se petition for relief under the Post Conviction Hearing Act, 42 Pa.C.S. §§ 9541-9551. Counsel was appointed, an amended petition was filed, and, following hearing, the P.C.H.A. court granted permission to Garwood to file an appeal nunc pro tunc.

      . Pa.R.Crim.P. 1101 provides:
      "In all cases, the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury....”

      . The charge at No. 1156 June Term, 1977 was nol pressed following entry of pleas of guilty in Nos. 1155 and 1157 June Term, 1977.

      . It may be observed also that the trial court’s order allowing an appeal nunc pro tunc included No. 862 July Term, 1977.


text:
    466 A.2d 1087
    ESTATE OF Owen S. HOFFMAN, Deceased. Appeal of Ruth Hoffman DeLONG.
    Superior Court of Pennsylvania.
    Argued May 31, 1983.
    Filed Oct. 14, 1983.

      John D. Dunmire, Norristown, for appellant.
    William P. Thorn, Philadelphia, for participating party.
    Before ROWLEY, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

The principal issue in this case is whether the appellant, Ruth H. DeLong, was able to establish by clear and convincing evidence that she was the biological daughter of Sidney S. Hoffman, deceased, and thus entitled to a one-half share of the residue of the estate of Owen S. Hoffman, the brother of Sidney S. Hoffman. The trial court found that appellant had failed to establish the necessary relationship, and a court en banc affirmed. This appeal followed.

Owen S. Hoffman died July 8, 1978. By the terms of his last will and testament, his residuary estate was devised and bequeathed to his wife. Because Owen’s wife had predeceased him without leaving issue, however, the gift lapsed, and the residuary estate passed under the intestate laws to the heirs of the testator. Owen S. Hoffman left surviving as his nearest relative a sister, Amy S. Welker, who is the appellee herein. Ruth DeLong, the appellant, who had been born out of wedlock to the sister-in-law of Sidney S. Hoffman, claimed that she was the natural daughter of Sidney S. Hoffman, a deceased brother of Owen Hoffman and, as such, entitled to one-half of the testator’s residuary estate.

Prior to November 26, 1978, Section 2107 of the Probate, Estates and Fiduciaries Code of June 30, 1972, P.L. 508, No. 164, § 2, 20 P.S. 2107, provided that a person born out of wedlock was to be “considered the child of his mother but not of his father.” In 1977, in the case of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), the Supreme Court of the United States held unconstitutional a similar provision in an Illinois statute on grounds that it violated the Equal Protection Clause of the Fourteenth Amendment. In response to the Supreme Court decision, the legislature in Pennsylvania enacted an amendment to Section 2107 of the Code which provided, inter alia, as follows:

(c) Child of father.—For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any one of the following ways:
(1) If the parents of a child born out of wedlock shall have married each other.
(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.
(3) If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

The amending statute, in section five, provides that it “shall be effective immediately, [i.e., November 26, 1978], but its provisions shall not apply to wills or conveyances executed prior to its effective date or to rights from and through a child’s father if the father had died prior to the effective date of this act.” (Emphasis added.)

Sidney S. Hoffman, the alleged father, had died in 1953, more than twenty-five years before the effective date of the amending statute. It follows that the provisions of the new section were not applicable to determine the validity of Ruth DeLong’s claim. It does not follow, however, that her claim is barred by the provisions of the prior statute. The prior statutory provision barring inheritance from a father by one born out of wedlock is unconstitutional. Trimble v. Gordon, supra; Estate of Dulles, 494 Pa. 180, 431 A.2d 208 (1981). Therefore, if Ruth DeLong was able to prove that she was the natural daughter of Sidney S. Hoffman, her claim to a share of the residuary estate of her deceased uncle must be accorded validity.

The trial court held that the claimant was required to prove Sidney S. Hoffman’s paternity by evidence that was clear and convincing. Appellant has accepted this burden of proof and does not challenge the trial court’s ruling on appeal. We observe, nevertheless, that claims of paternity made after the lips of the alleged father have been sealed by death are in that class of claims which must be subjected to the closest scrutiny and which can be allowed only on strict proof so that injustice will not be done. See and compare: Estate of Gavula, 490 Pa. 535, 540-541, 417 A.2d 168, 171 (1980) (Law imposes a heavy burden on one who grounds his or her claim on an allegation of common law marriage, especially where one of the parties is dead; courts will examine such claim with strict scrutiny.); Manfredi Estate, 399 Pa. 285, 292, 159 A.2d 697, 701 (1960) (“When the lips of a man are sealed by death, and he leaves no satisfactory evidence as to the existence of such [marriage] contract, courts will be very slow to establish it in derogation of the undoubted rights of those who follow him.”).

Ruth H. DeLong was born Ruth Sidney Hoffman on April 14, 1927, in Pottsville, Schuylkill County. She was born out of wedlock to Marian Mentch. Named as father on Ruth’s birth certificate was John Hoffman; Ruth, however, has no knowledge of anyone so named. Shortly after her birth, she was taken into the home in Allentown, Lehigh County, of her mother’s sister, Mary Hoffman, and Mary’s husband, Sidney S. Hoffman. Ruth was raised by Sidney and Mary Hoffman and resided with them in Allentown until her marriage in 1946. During the years that she lived with the Hoffmans, she was known as Ruth Hope Hoffman. It was not until she was twelve or thirteen that Ruth learned, quite by accident, that her “Aunt” Marian Mentch was in fact her natural mother. Ruth was never adopted by Mary and Sidney Hoffman. Sidney S. Hoffman died in 1953; Mary Hoffman passed away in 1972.

In order to support the claim that she was the natural daughter of Sidney S. Hoffman, Ruth DeLong presented evidence establishing a very close relationship between herself and Sidney S. Hoffman. Sidney told Ruth that he loved her and that she was his own “little kitten,” his own “little girl” and his own “little baby.” Ruth also presented various documentary evidence, including an insurance policy and census records in which Sidney was named as her father and a marriage license application which disclosed that it had been Sidney who consented, to Ruth’s marriage. School records were also introduced and reflected that Sidney had been named as Ruth’s parent or guardian. Sidney’s watch and Bible, now in the possession of Mrs. DeLong and her son, were received in evidence as was a letter from Sidney to Mrs. DeLong’s son, written on the day of his birth and signed “Your Mother’s Daddy.” Mrs. Welker presented no evidence. However, other evidence presented by the claimant disclosed that Ruth DeLong and Sidney Hoffman had different blood types. Marian Mentch, although living, did not give testimony. No explanation was given for failing to call as a witness the one person remaining alive who could identify unequivocally the natural father of Ruth.

The trial court held that the claim of Ruth DeLong had not been sustained by evidence that was clear and convincing. The evidence, the court held, was ambiguous and did not establish that Ruth DeLong was the natural child of Sidney Hoffman. The court said: “The record merely indicates that Sidney and Mary took their illegitimate niece into their home to raise as their own child. There were no facts tending to support claimant’s allegation that Sidney was her natural father. All of the evidence presented in this case is consistent with the fact that Mary and Sidney were raising claimant as their foster child.” This finding was affirmed by the court en banc.

Where the findings of the hearing judge, affirmed by the court en banc, are supported by competent evidence, an appellate court will not reverse in the absence of an abuse of discretion, a capricious disregard of evidence, or an error of law. Sack v. Feinman, 489 Pa. 152, 165-166, 413 A.2d 1059, 1066 (1980); Estate of Thomas, 463 Pa. 284, 289 n. 5, 344 A.2d 834, 836 n. 5 (1975); Hankin v. Hankin, 279 Pa.Super. 179, 196-197, 420 A.2d 1090, 1099 (1980). This rule applies with special force where, as here, the determination of the ultimate issue must depend primarily upon determinations as to the credibility and weight of the evidence. Although the claimant presented competent evidence to show the existence of a close relationship between herself and Sidney Hoffman, its effect to show a biological parent-child relationship was diluted by her failure to call her natural mother to identify the claimant’s biological father. “It is generally agreed that when a potential witness is available and appears to have special information relevant to the case ... and when [her] relationship with one of the parties is such that the witness would ordinarily be expected to favor [that party], then if such party does not produce [her] testimony, the inference arises that it would have been unfavorablef.]”. General Electric Credit Corp. v. Aetna Casualty & Surety Co., 437 Pa. 463, 477-478 n. 18, 263 A.2d 448, 456 n. 18 (1970). Thus, the failure of a party, without explanation, to call as a witness her own mother to testify to the identity of that party’s father permits an inference by the fact finder that the mother’s testimony would have been unfavorable to the claimant who had the burden of proving the paternity necessary to substantiate her claim.

We have reviewed the record and find no abuse of discretion on the part of the trial court and no basis for disturbing its findings.

The order is affirmed.

      . Section 2514(8) was correspondingly amended to provide that absent a contrary intent ‘‘[i]n construing a will making a devise or bequest to a person or persons described by relationship to the testator or to another, a person born out of wedlock shall be considered the child of the natural mother and also of the natural father if paternity of the natural father has been determined pursuant to the provisions of Section 2107.”

      . Appellee contends for the first time on appeal that the two blood types were incompatible. There is, however, no expert testimony of record to substantiate this claim.


author: POPOVICH, Judge:

text:
    466 A.2d 1091
    COMMONWEALTH of Pennsylvania v. Paul F. MORGENTHALER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 27, 1983.
    Filed Oct. 14, 1983.

      Michael Alan Klimpl, Doylestown, for appellant.
    Thomas G. Mundhenk, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by the appellant, Paul F. Morgenthaler, from a ruling by the Court of Common Pleas of Bucks County, Criminal Division, “dismiss[ingj” a summary conviction entered against him by a District Magistrate for speeding. 75 Pa.C.S.A. § 3362. We reverse and remand.

After taking testimony and receiving evidence at the hearing de novo on the speeding violation, Judge Bortner stated in open court that appellant’s “appeal [was] dismissed.” (N.T. 3/5/82 at 23) Appellant has appealed from this March 25, 1982 ruling, which all parties concerned have erroneously captioned as an appeal from a “judgment of sentence.” Although neither party has specifically questioned the jurisdiction of this Court on this matter, the mere agreement of the parties will not vest jurisdiction where it otherwise should not be. T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981). Moreover, the mere assertion of the appellant in his brief that jurisdiction is conferred on the Superior Court over this matter by reason of the Act of July 9, 1976, P.L. 586, No. 142, § 2; 42 Pa.C.S.A. § 701 et seq., is not dispositive of the question. Accordingly, we reach the appealability of the trial court’s ruling sua sponte. MacKanick v. Rubin, 244 Pa.Super. 467, 473, 368 A.2d 815, 816 (1976); Jones v. Crossgates, Inc., 220 Pa.Super. 427, 289 A.2d 491 (1972).

Recently, a panel of this Court was confronted with a precisely similar situation, and, in an Opinion authored by President Judge CERCONE, clearly stated:

“This Court has held repeatedly that in an appeal from a summary judgment to the court of common pleas, the judgment of common pleas should be either “guilty” or “not guilty.” As we wrote in Commonwealth v. Carter, 230 Pa.Superior Ct. 401, 403, 326 A.2d 530, 531 (1974):
A judgment affirming the justice of the peace, dismissing the appeal, or sustaining the appeal, is not sufficient and will be reversed. Commonwealth v. Alton, 209 Pa.Super. 168, 224 A.2d 792 (1966); Commonwealth v. Young, 184 Pa.Super. 658, 135 A.2d 774 (1957); Commonwealth v. Miller, 173 Pa.Super. 168, 96 A.2d 153 (1953).
Furthermore, an order adjudicating guilt must be entered, even though it is implicit in the lower court’s actions and opinion that the court considered the evidence supportive of a finding of guilt. Commonwealth v. Carter, supra; Commonwealth v. Wenyon, 230 Pa.Superior Ct. 342, 326 A.2d 633 (1974).” (Footnote omitted)

Commonwealth v. Gula, 300 Pa.Super. 445, 446-47, 446 A.2d 938, 939 (1982).

Instantly, as in Gula, the trial court neglected to adjudicate the appellant “guilty” or “not guilty,” as well as failing to enter a sentence for appellant’s violation of the Motor Vehicle Code. Therefore, in compliance with the dictates of Gula, the trial court’s ruling is reversed and the case is remanded with the direction to the trial court to enter a finding of guilty or not guilty, and if guilty to impose sentence. This Court does not retain jurisdiction.