author: McEWEN, Judge: JOHNSON, Judge,

text:
    615 A.2d 1379
    Virginia BROWN, Administratrix of the Estate of Lawrence Brown and individually, Joan Brown Spina, John Brown and Thomas R. Brown, Appellants, v. DELAWARE VALLEY TRANSPLANT PROGRAM, Arthur Harrell, Howard Nathan, Brandywine Hospital, Norman Ledwin, James P. Argires, M.D., Phillippe Oullette, Charles R. Wagner, M.D., and Samuel Heed, Esquire.
    Superior Court of Pennsylvania.
    Argued May 1, 1992.
    Filed Nov. 13, 1992.

      William R. Hagner, Paoli & Joseph F. Lawless, Jr., Philadelphia, for appellants.
    George E. Rahn, Jr., Philadelphia, for Brandywine Hosp. and Norman Ledwin, appellees.
    Hugh M. Emory, Wayne, for James P. Argires, M.D., appellee.
    Before ROWLEY, President Judge, and WIEAND, McEWEN, DEL SOLE, MONTEMURO, BECK, TAMILIA, KELLY, and JOHNSON, JJ.
   McEWEN, Judge:

Lawrence Brown was brought to the emergency room of Brandywine Hospital at 5:20 p.m. on October 30, 1984, suffering from a gunshot wound of the left supra orbital region and, within the hour, was determined by a neurosurgeon, James P. Argires, M.D., to be suffering from a terminal head injury. As a result of his diagnosis, Dr. Argires advised the Delaware Valley Transplant Program (DVTP) that Mr. Brown, who was placed on life support systems, was a potential donor of organs for transplantation and, at approximately 7:15 p.m. that evening a tissue typing biopsy was performed. Cerebral death was documented at 10:35 p.m. on October 30, 1984, and the kidneys and heart of the decedent were removed for transplantation during the early morning hours of November 1, 1984. The first relative of the decedent to be located as a result of the search undertaken by state police was the decedent’s sister, Virginia Brown, who was located at her office at 10:15 on the morning of November 1, 1984.

This action was subsequently commenced by appellants: Virginia Brown, the sister of the decedent, in her capacity as an individual as well as administratrix of the estate of Lawrence Brown; Thomas Brown, the father of the decedent; and Joan Spina and Johnnie Lee Brown, the sister and brother of the decedent. Appellants named as defendants in the action the Delaware Valley Transplant Program (hereinafter DVTP); Arthur Harrell, coordinator for DVTP; Brandywine Hospital; the president of Brandywine Hospital, Norman Ledwin; the administrator of the Brandywine Hospital, Phillippe Oullette; James Argires, the aforementioned neurosurgeon; the executive director of DVTP, Howard Nathan; the attorney for the Hospital, Samuel Heed; and Charles Wagner, M.D., the surgeon who removed the organs for transplantation.

Appellants sought money damages from appellees based upon appellees’ participation in the harvesting of Lawrence Brown’s heart and kidneys. The complaint filed by appellants sets forth causes of action for:

(1) mutilation of a corpse,
(2) intentional infliction of emotional distress,
(3) civil conspiracy, and
(4) assault and battery.

Following the close of the pleadings, all appellees moved for summary judgment on the basis of the qualified immunity afforded by Section 8607(c) of the Anatomical Gift Act, 20 Pa.C.S. § 8607(c). The trial court granted the motion for summary judgment on the basis of the qualified immunity, and this timely appeal was taken from the judgment entered in favor of all appellees.

Appellants contend that there exist material issues of fact as to whether appellees acted in good faith or whether appellees sought to avoid the provisions of the Act so as to obtain the decedent’s organs without the consent of any of the individuals authorized by Section 8602(b) of the Act to give such consent. Essentially the allegations of appellants’ complaint are based upon appellants’ belief that appellees purposefully circumvented the provisions of the Pennsylvania Anatomical Gift Act, thus precluding application of the good faith defense provided by Section 8607(c) of the Act. We find that there is no dispute as to any material fact, that the undisputed evidence of record establishes the good faith of appellees, and that appellees are, as a matter of law, entitled to the qualified immunity provided by the Act. We, therefore, affirm the judgment entered in favor of appellees.

The Uniform Anatomical Gift Act has been adopted, with minor variations, in all fifty states and the District of Columbia. Section 8602(b) of the Pennsylvania Act, which is identical to the Uniform Act, establishes a descending order of priority for those persons with authority to make an anatomical gift:

b) Any of the following persons, in order of priority stated, when persons in prior classes are not available at the time of death, and in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or a prior class, may give all or any part of the decedent’s body for any purpose specified in Section 8603 of this code:
(1) the spouse;
(2) an adult son or daughter;
(3) either parent;
(4) an adult brother or sister;
(5) a guardian of the person of the decedent at the time of his death; and
(6) any other person authorized or under obligation to dispose of the body.
c) The persons authorized by subsection (b) of this section may make the gift after or immediately before death.

20 Pa.C.S. § 8602.

Section 8607(c) of the Act provides that any
person who acts in good faith in accord with the terms of this chapter or with the anatomical gift laws of another state or a foreign country is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his act.

20 Pa.C.S. § 8607(c).

The argument of appellants that appellees were guilty of a purposeful failure to act as well as purposeful non-disclosure is based upon the following facts as recited in appellants’ brief:

“Between 6:00 p.m. and midnight on October 30, 1984, the Pennsylvania state police had obtained a voter registration card, an unemployment card, an address, a post office box, a Social Security number, and a witness’ statement that the person he had seen shot was named ‘Larry’ and determined that such information was a sufficiently accurate and positive identification to formulate the basis for a sworn affidavit that the victim of the shooting was Larry Brown. At this same point in the chronology of events, the Delaware Valley Transplant Program had also obtained information indicating that the shooting victim had been identified as Lawrence Brown by an ‘apparent girlfriend’. It is further undisputed that by 9:15 a.m. the following morning the individual in the hospital had been positively identified by the shooter as Larry Brown, a resident of Frank’s Folly Campground. Notwithstanding the foregoing, the [appellees] maintain even today, more than five years later, that no one in the hospital or the Transplant Program knew the identity of Larry Brown at this same point in time.- Finally, it is absolutely clear, both from deposition testimony as well as the defendants’ summary judgment motion, that at no time on October 30, 1984, did anyone from Brandywine Hospital or the Transplant Program make any attempt of any kind to locate the next of kin of Larry Brown.”

Essentially, counsel for appellants argues that three facts preclude the entry of summary judgment in favor of appellees:

(1) that the state police rather than any of the appellees were the only individuals actively searching for Larry Brown’s next of kin;
(2) that the appellees, aware of the decedent’s tentative identification as Larry Brown, caused all references to the decedent in the petition as originally filed to be to “John Doe” instead of “Larry Brown”; and
(3) that counsel for appellees represented to the trial court that there was no authority directly on point which would authorize the trial court to enter an order granting permission to the DVTP to harvest decedent’s heart and kidneys.

We conclude, for reasons hereinafter set forth, that these facts, accepted as true for purposes of ruling upon the entry of summary judgment, do not provide any basis upon which to disturb the ruling of the distinguished Judge Charles B. Smith that appellees were entitled to the good faith immunity provided by the Act.

Appellants contend that the appellees’ reliance upon the efforts of the state police to locate the decedent’s next of kin is evidence of their lack of good faith and their indifference to the requirement that consent be obtained, if possible, from a close relative pursuant to the classifications established by Section 8602(b). We disagree. The qualified immunity provided by Section 8607(c) of the Act requires a “good faith” attempt to comply with all of the statutory requirements for organ donation. The statute does not require any particular type of search for members of higher classes in order to establish the unavailability of members of that class. Section 8607(c) of the Pennsylvania statute was adopted verbatim from Section 7(c) of the Uniform Anatomical Gift Act, and was designed to simplify, facilitate, and encourage organ donation. As noted in the Comment to Section 7 of the Uniform Act:

the entire Section 7 merits genuinely liberal interpretation to effectuate the purpose and intent of the Uniform Act, that is to encourage and facilitate the important and ever increasing need for human tissue and organs for medical research, education and therapy, including transplantation.

8A Uniform Laws Annotated, § 7.

The difficulty encountered by the State Police in their attempt to expeditiously locate Larry Brown’s relatives was occasioned not by any failure on the part of appellees but rather by reason of the estrangement between Larry Brown and his family. The state police came into possession of decedent’s voter registration card and a Social Security card, but neither document contained a photograph or identified members of his family. The state police quickly located Pamela Batson, the decedent’s paramour with whom he had resided for the nine months immediately preceding his death, but Ms. Batson indicated that she believed the decedent’s parents were dead and that the decedent’s two sisters and one brother, whose names she did not know, did not reside in Pennsylvania. Moreover, the personal effects of the decedent, which were located at the home he shared with Ms. Batson, did not include any documents or correspondence containing the names or addresses of any family member.

The deposition testimony of the troopers involved in the search for Larry Brown’s relatives firmly established a good faith effort on their part which culminated in the notification of Virginia Brown, less than forty-eight hours after the decedent was brought to the emergency room, at 10:15 a.m. on the morning of November 1, 1984. The testimony of appellants themselves established that the difficulty encountered by the state police was the result of family estrangement and not lack of diligent police effort:

Appellant Virginia Brown, the sister of the decedent and administratrix of his estate, testified that she had not spoken with her brother in four or five years and did not know where he was living at the time of his death.
Appellant Thomas Brown, the father of the decedent testified that he had not seen his son for at least one year and did not know where he was living at the time of his death. Appellant Joan Brown Spina, another sister of decedent, testified that she had not spoken with the decedent for approximately three years prior to his death and appellee Johnnie Lee Brown testified that he had last seen his brother approximately four years before his death.

Thus, the record establishes that at the time of the decedent’s death on the evening of October 30,1984, none of the individuals authorized by Section 8602(b)(1) through (b)(5) to make a decision concerning organ donation were available, and demonstrates as well that the State Police, acting at the request of the appellees, conducted a diligent, good faith effort to locate the members of the decedent’s family. Nor was there any suggestion, from any source, that the decedent or any of the individuals enumerated in sub-sections (b)(1) through (b)(5) were opposed to organ donation. The Act authorizes, in the absence of the individuals specified by Section 8602(b)(1) through (b)(5), “any other person authorized or under obligation to dispose of the body,” to make the decision regarding organ donation. As a result, appellees, pursuant to Section (b)(6) of the Act, proceeded to obtain a court order authorizing the hospital to make the decision regarding organ donation. Appellees unquestionably proceeded in accordance with the intent of the Pennsylvania Uniform Anatomical Gift Act, since the priority scheme established by section 8602(b) was drafted “taking into account the very limited time available following death for the successful removal of such critical tissues as the kidney, the liver and the heart”. 8A Uniform Laws Annotated at p. 35 (1983).

As a result, we conclude that the undisputed facts of record establish, as a matter of law, the good faith of appellees in attempting to locate those individuals specified in subsections (b)(1) through (b)(6) of Section 8602 of the Act. As we pronounce that the good faith of appellees has been established as a matter of law, we echo the reasoning of the Supreme Court of Wayne County, New York, which, while recognizing that the issue of whether an individual has acted in “good faith” is generally a question of fact rendering summary judgment inappropriate, held that

after an extensive review of the reasoning behind these so-called “good faith decisions”, this Court believes that the instant case is distinguishable. In those decisions, the court had to deal with the question of whether a defendant had “conformed to a standard of conduct required by law”, and that determination was held to be a question of fact. (Kiernan v. Hendrick, 116 A.D.2d 779, 781, 497 N.Y.S.2d 171, appeal dismissed, 68 N.Y.2d 661, 505 N.Y.S.2d 76, 496 N.E.2d 235). In those cases, most of which involved dealings of a corporate or commercial nature, there was no express or specific criteria of a statutory nature incorporating such a “standard of conduct” against which an individual’s conduct could be measured, without submitting evidence in the form of in-court testimony to a trier of fact.
In the instant case, however, the Court believes that the Legislature has created an objective standard by which the good faith of a donee could be measured. The Uniform Anatomical Gift Act establishes a statutory scheme which outlines the means of effecting an anatomical gift, the classes of individuals entitled to effect such a gift, and the circumstances under which such a gift must be deemed null and void. None of the previous good-faith cases have involved such a definitive standard by which to judge a defendant’s conduct.

Nicoletta v. Rochester Eye and Human Parts Bank, Inc., 136 Misc.2d 1065, 1068-69, 519 N.Y.S.2d 928, 931 (1987).

Appellants also contend that two specific facts related to the court proceedings create a genuine issue of material fact precluding summary judgment:

First, that the emergency petition submitted to the Court of Common Pleas of Chester County identified the decedent as “John Doe” when the hospital and the state police were by then reasonably certain that the decedent’s name was Larry Brown; and
Second, that counsel for the Hospital, Attorney Heed, in response to an inquiry from the Court as to the existence of a specific statute authorizing the court to direct the harvesting of the decedent’s organs for transplantation, responded that he was not aware of “specific authority that will allow you to do that, but I would certainly think you would have the general power to do that”.

There is no merit to either contention, for neither the designation of the decedent as “John Doe” on the petition, nor the statement that counsel was unaware of specific authority for the entry of the requested order creates an issue of fact as to whether appellees made a good faith attempt to comply with the provisions of the Pennsylvania Uniform Anatomical Gift Act.

Counsel for the Hospital stated to the court that he had caused the petition to be drafted identifying the decedent as “John Doe, Caucasian male, age 28” as a result of counsel’s lack of knowledge that the decedent had, by that time, been tentatively identified as Lawrence Brown. Appellee Norman Ledwin, who was present for the hearing, advised the court that the police had identified the decedent as Larry Brown, that his girlfriend had been located, that no relatives had been found yet, and that the hospital sought to secure the permission of the court since the decedent’s girlfriend was not an individual who could make a decision regarding organ donation.

The court, as a result of the exchange with Attorney Heed and Appellee Ledwin, amended the petition and order to reflect the decedent’s name as Lawrence Brown. Appellants have not produced any evidence from any source that appellees had purposely sought to conceal the decedent’s name from the court. Nor can such an inference be drawn under the circumstances of this case since no positive identification of the decedent had yet been made, no photographic identification had been recovered, and no medical or dental records of the decedent had been obtained. Thus, while the state police and hospital personnel believed that the decedent was Lawrence Brown, their identification remained tentative.

Nor may a court draw the inference desired by appellants from counsel’s statement to the court that he was unaware of “specific authority” authorizing the court to order the harvesting and transplantation of the decedent’s organs due to the exigency of the situation and the inability of the state police to locate any relatives. We simply find unacceptable the argument of appellants, that counsel’s failure to cite, in response to the court’s inquiry, the Pennsylvania Uniform Anatomical Gift Act, 42 Pa.C.S. § 8602, is evidence of bad faith.

The Act, in fact, does not specifically authorize a court to enter an order granting the hospital the right to donate an individual’s organs where none of the relatives designated in Section 8602(b) can be located at the time of death. Moreover, our research does not disclose that any appellate forum, in any of the jurisdictions which have adopted the Uniform Act, has addressed the use of a court order in lieu of consent by any of the individuals designated in the Act. While counsel could certainly have persuasively argued that a court order authorizing the hospital to harvest the decedent’s organs was impliedly authorized by Section 8602(b)(6), counsel’s failure to so assert cannot, under any stretch of the imagination, be considered evidence of bad faith. As the learned trial court observed, appellees “complied with the requirements of the Act, and in fact, went beyond that which was required of them by seeking a court order granting its consent”.

We agree and even observe that it was not the actions of appellees which inspired, during our study of this appeal, a sense of a diminished presence of good faith. In any event, we conclude that the trial court properly granted the motions of appellees for summary judgment.

Order affirmed.

JOHNSON, J., files dissenting opinion.

JOHNSON, Judge,

dissenting:

The Majority affirms the grant of the Motion for Summary Judgment, in favor of Brandywine Hospital and all other appellees, based on the trial court’s determination that the hospital was an authorized organ donor under 20 Pa.C.S. § 8602(b)(6), and, that all appellees acted in “good faith” and were thus immune from civil liability under 20 Pa.C.S. § 8607(c). From my review of the record, I conclude that the hospital has not established its authority to donate the organs of the decedent. Further, the question of the good faith of the hospital and other appellees is an issue of material fact, which must be submitted to a finder-of fact, rendering the order granting summary judgment improper. I must, therefore, dissent.

In reviewing an order granting a motion for summary judgment, we must view the record in the light most favorable to the non-moving party. Dorohovich v. West American Insurance Co., 403 Pa.Super. 412, 589 A.2d 252 (1991). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). Moreover, in summary judgment proceedings, it is not the court’s function to determine the facts, but only to determine if a material issue of fact exists. Godlewski v. Pars Manufacturing Co., 408 Pa.Super. 425, 597 A.2d 106 (1991). Summary judgment is proper only where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the trial court’s conclusion that no genuine issue of material fact exists and the moving party .is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Penn Center House v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). Under this standard, a reviewing court should overturn the trial court’s grant of a motion for summary judgment where there is an error of law or manifest abuse of discretion. Peffer v. Penn 21 Associates, 406 Pa.Super. 460, 594 A.2d 711 (1991).

In the present case, the Majority relies upon Pennsylvania’s enactment of the Uniform Anatomical Gift Act (Act) to uphold the trial court’s grant of immunity from civil liability to the appellees. In order to qualify as a “person who may execute an anatomical gift,” the hospital must be one of a class of persons authorized under 20 Pa.C.S. § 8602. This statute, in pertinent part, states:

(b) Any of the following persons, in order of priority stated, when persons in prior classes are not available at the time of death, and in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or a prior class, may give all or any part of the decedent’s body for any purpose specified in section 8603 of this code:
(1) the spouse;
(2) an adult son or daughter;
(3) either parent;
(4) an adult brother or sister;
(5) a guardian of the person of the decedent at the time of his death; and
(6) any other person authorized or under obligation to dispose of the body

Under the Act, those acting in compliance with the Act may be immunized from criminal and civil liability under 20 Pa.C.S. § 8607(c). This section states:

(c) A person who acts in good faith in accord with terms of this chapter or with the anatomical gift laws of another state or a foreign country is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his act.

The Majority concludes that the hospital was qualified, under the Act, to donate Larry Brown’s organs for transplant purposes under 20 Pa.C.S. § 8602(b)(6). The Majority also finds that the appellees are immune from civil liability, under 20 Pa.C.S. § 8607(c), because they acted in good faith. I reject both of these conclusions.

First, appellees have not proven, as a matter of law, that the hospital qualified as a person who may execute an anatomical gift, under 20 Pa.C.S. § 8602(b)(6). The Majority accepts the trial court’s determination that the hospital was an authorized donor under § 8602(b)(6), stating that there was compliance “with the intent” of the Act. The trial court determined that the appellees were authorized donors through reference to the definitions contained in 20 Pa.C.S. § 8601. This section states in pertinent part:

“Person.” Means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.

While the trial court correctly concluded that the hospital, in the present case, is included in the definition of “person” under the Act, it does not automatically follow that the hospital was “authorized or under obligation to dispose of the body” of Larry Brown. Neither the appellees nor the Majority cite to authority which permits the hospital to qualify, as a matter of law, as a donor under 20 Pa.C.S. § 8602(b)(6).

At oral argument, council for the hospital directed us to 35 Pa.S. § 1092 to support the allegation that the hospital was authorized to dispose of the body of the decedent, as required for donors under 20 Pa.S. § 8602(b)(6). This statute provides only that various entities and organizations, including hospitals, are required to report any bodies which must be buried at public expense, to the Anatomical Board of the State of Pennsylvania. 35 Pa.S. § 1092. Nowhere does the statute state that hospitals are authorized or under an obligation to dispose of dead bodies. Moreover, under a related statute, 35 Pa.S. § 1114, any body which remains unclaimed thirty-six hours after death, falls under the jurisdiction of the Anatomical Board of the State of Pennsylvania. If the Anatomical Board declines jurisdiction over the body, 35 Pa.S. § 1092 directs that the body will be commended to the county commissioners or county executive officers for burial at county expense. Nowhere in this Act, entitled Disposition of Dead Human Bodies, are hospitals given authority or placed under an obligation to dispose of dead bodies. See 35 Pa.S. §§ 1091-1123.

The Comment to the 1968 version of the Uniform Anatomical Gift Act gives some guidance in determining who is authorized to dispose of the body of a decedent, under § 2(b)(6) of the Uniform Act or § 8602(b)(6) of the Pennsylvania Act. This Comment states in part: “Subsection (b) spells out the right of survivors to make the [anatomical] gift.” 8A U.L.A. 35 (1968). While this language may not clearly specify who is “authorized” to dispose of a decedent’s body, neither the Majority nor the appellees have attempted to establish that the hospital could be considered a survivor of the decedent.

Various commentators have speculated on the grave public policy implications of state legislatures permitting institutions to qualify as donors under the Uniform Anatomical Gift Act. See e.g. Quay, Utilizing the Bodies of the Dead, 28 St. Louis U.L.J. 889, 897 (1984). Research reveals no case law in this or any jurisdiction in which a hospital has been recognized as an organ donor in the absence of a donation by the decedent or the decedent’s next-of-kin. However, in an attempt to clarify who should hold donor status, the Uniform Act, as amended in 1987, now provides that only the decedent’s next-of-kin, legal guardians, or in their absence, the coroner or other public health official may make an anatomical gift on behalf of a decedent. See Uniform Anatomical Gift Act §§ 3-4, 8A U.L.A. 17-18 (1987). See also Note, She’s Got Bette Davis[’sJ Eyes: Assessing the Nonconsensual Removal of Cadaver Organs Under the Takings and Due Process Clauses, 90 Columbia L.R. 528, 537 (1990). This amendment has yet to be adopted by the legislature in this Commonwealth.

In the absence of both statutory and common-law precedent, I am unable to conclude that the hospital has established that it was an authorized donor, as described in Pennsylvania’s Act. 20 Pa.C.S. § 8602(b)(6).

However, even if I were to conclude that the hospital was authorized to dispose of the body of the decedent, the disposition of this case through the grant of a motion for summary judgment would remain improper, as the question of whether the appellees have acted in good faith, so as to be immune from liability under 20 Pa.C.S. § 8607(c), is one of material fact which must be submitted to the jury.

A review of the record reveals the following facts. On October 30, 1984, the decedent was admitted to the hospital with a gunshot wound to the head. The decedent was identified shortly after admission as Larry Brown, with all hospital records bearing the decedent’s name and address. R.R. at 29a-36a. Despite this identification, the hospital referred to the decedent as John Doe, an unidentified person, in its Petition for Consent to Perform Emergency Organ Extraction. The hospital’s petition to the court for removal of the decedent’s organs indicates that: “[t]he hospital has made every available effort first to determine the identity of the patient and then to locate next of kin, but all efforts have been to no avail.” R.R. at 16a. Yet, no evidence has been produced by the hospital to indicate that it made any effort to contact the decedent’s next-of-kin, prior to seeking a court order to donate the decedent’s organs.

My review of the record indicates that the hospital represented to the court, when seeking permission to remove the decedent’s organs that:

... What you need to do is allow them to extract the organs so that the donees may have the benefit thereof. I cannot cite you specific authority that will allow you to do that, but I would certainly think you have the general powers to do that.

N.T., October 31, 1984, at 4. The court, based on the representations of the hospital, granted the order permitting the removal of the decedent’s organs. Order of Court, October 31, 1984. The harvesting of the decedent’s organs was subsequently performed. Now, the hospital and other appellees seek to rely on the Act and the immunity provided under 20 Pa.C.S. § 8607(c).

The Majority asserts that Larry Brown’s family members were “unavailable”. However, within 48 hours of the decedent’s admission, Virginia Brown, his sister, was present in the hospital. Moreover, when Virginia arrived at the hospital, the hospital vice president, despite the fact that the organs had been removed without permission several hours earlier, attempted to have her sign a consent to donate her brother’s organs. Deposition of Phillippe Oullette, May 22, 1989, at 126. These facts belie a finding of good faith, as a matter of law.

The Majority recognizes that whether a person or an entity has acted in good faith is generally a question of fact for the jury. Thus, in a motion for summary judgment, it is only when the facts are so clear that reasonable minds cannot differ, that a decision may be made, as a matter of law. See Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992). I conclude that reasonable minds could, and do, differ as to whether the appellees acted in good faith. Therefore, this question must be submitted to the finder-of-fact.

The question of whether a person has acted in good faith has been held to be an issue of material fact and an improper one for disposition through summary judgment. See e.g. Banker v. Valley Forge Insurance Co., 401 Pa.Super. 367, 585 A.2d 504 (1991), alloc. denied, 529 Pa. 615, 600 A.2d 532 (1991). In Banker, we reversed the grant of a motion for summary judgment, stating that the determination of whether an insurance company had breached its duty of good faith and fair dealing was an issue of material fact. Id. 401 Pa.Super. at 378-379, 585 A.2d at 510-511.

The issue of whether a person has acted in good faith so as to qualify for immunity under § 8607 of the Act is one of first impression in this Commonwealth. In this jurisdiction, there has yet to be a determination as to whether the question of good faith, under the Act, should be deemed to be a matter of fact or a matter of law. There is also an ostensible split of authority existing among other jurisdictions that have considered this issue. The Wisconsin Supreme Court has addressed the issue of good faith, under the Uniform Act, in Williams v. Hoffman, 66 Wis.2d 145, 223 N.W.2d 844 (1974). In that case, the court described good faith as a term which prescribes a general code of conduct, stating: “[w]hether an individual acted in good faith is a question that can only be answered following a careful analysis of the facts in a particular case.” Id. at 153, 223 N.W.2d at 848. I would adopt this analysis of the requirement of good faith under the Act, since it follows the traditional view held by the courts in this Commonwealth, that questions of good faith are for the jury.

The Majority relies on Nicoletta v. Rochester Eye and Human Parts Bank, Inc., 136 Misc.2d 1065, 519 N.Y.S.2d 928 (1987), a New York Supreme Court case, to support its contention that good faith, under the Uniform Act, can be decided as a matter of law. There, after the death of Peter Nicoletta, his “wife” donated his eyes for transplant purposes. However, after the anatomical gift had been made, the woman who purported to be Nicoletta’s wife was discovered to be not his legal wife, but a woman with whom the decedent had cohabited for ten years. The father of the decedent sued the hospital to recover for the emotional/psychological injuries he suffered due to the unauthorized removal of his son’s eyes. The court recognized the general rule articulated in Williams v. Hoffman, which defines questions of good faith as issues of fact. Id. at 1068-69, 519 N.Y.S.2d at 931. Nonetheless, the Nicoletta court affirmed the order granting summary judgment in favor of the hospital on the ground that it was undisputed that the hospital followed the letter of the Anatomical Gift Act, authorizing a spouse as the first alternative donor absent a donation by the decedent. The court, there, held that under those particular facts, and, in the absence of notice as to the true identity of the woman, it would frustrate the purpose of the Uniform Act and would place unreasonable demands upon the hospital to require further investigation, by the hospital, into the identity of the purported spouse.

The Nicoletta legal analysis, adopted by the Majority, cannot be applied in the present case, as the facts in Nicoletta are vastly different from those before us. Here, the hospital and its staff identified the decedent as a potential donor prior to attempting contact with any family member. The hospital, and other appellees, did not rely on the consent of an authorized donor under the Anatomical Gift Act. Rather, the hospital, failing to search for or contact the decedent’s next-of-kin, sought to place itself in the role of an authorized donor. This is not a case, such as Nicoletta, where a clear attempt to follow the Act had been made. Moreover, I am unable to conclude that an undue burden would be placed on the hospital if it were required to attempt notification of family members prior to assuming the role of alternate donor of the decedent’s organs. The “good faith” of the appellees, in the present case, is not so clear and undisputed that a court could pass on it as a matter of law. Here, the dispositive question, whether the appellees conducted themselves in good faith, is a highly-contested and complex issue of material fact, which we are required to submit to the finder-of-fact. See Banker, supra; Commonwealth ex rel. Broscious v. Fern, 418 Pa.Super. 34, 613 A.2d 17 (1992).

Accordingly, I dissent.

      . Attorney Samuel Heed and Charles Wagner, M.D., are no longer parties to the action. This Court affirmed the dismissal of all counts against Attorney Heed in Brown v. Delaware Valley Transplant Program, 372 Pa.Super. 629, 539 A.2d 1372 (1988), and counsel for appellants stated during the presentation of oral argument that Dr. Wagner had been dismissed as a result of appellants’ determination that he had acted in “good faith".

      . The complaint also contained counts alleging malicious use of process and negligent infliction of emotional distress. These counts, however, were dismissed in response to preliminary objections and are not at issue in the instant appeal.

      . Each of the appellants has candidly testified that they are not morally or ethically opposed to organ donation and do not know what their response would have been to a timely request for organ donation which all hospitals are required to make “on or before the occurrence of death in an acute care general hospital” pursuant to Section 8608(a) of the Act, 20 Pa.C.S. § 8608(a).

      . MR. HEED: So I don't think you need to do that. What you need to do is allow them to extract the organs so that the donees may have the benefit thereof. I cannot cite you specific authority that will allow you to do that, but I would certainly think you would have general powers to do that.

        The problem here is, of course, that next of kin have not been reached. But all due efforts have been made to ascertain—
      THE COURT: What efforts have been made? Perhaps you ought to state them for the record.
      MR. HEED: Perhaps I should have Mr. Ledwin state them.
      MR. LEDWIN: Since the case is being conducted the investigation — by the state police and they have been dispatched to try to ascertain next of kin, we have searched all our medical records for a match with the victim, but unable to find any match in the medical records. The state police and the district attorney’s office has not been able to find any next of kin at this point in time. They did find a girlfriend who obviously does not have the right to make that judgment. She does not know of any next of kin.
      THE COURT: So you know who the person is? It is not a John Doe at this point.
      MR. LEDWIN: Yes. We have identified him as a Lawrence Brown. THE COURT: From around here?
      MR. LEDWIN: We don’t know. Last night he was found in West Brandywine Township with a small caliber gunshot wound to the upper left eye. They feel that he was transported and dropped there and that the incident occurred at some other location.
      MR. HEED: I apologize, Judge. I was under the impression, and as a matter of fact the petition was drawn such that we did not know who the victim is.
      MR. LEDWIN: At this point the state police have picked up a suspect and they have identified him with that particular name. There was no identification or evidence of identification on his personal belongings last night when he was brought in to the institution.
      THE COURT: All right. Well, frankly, gentlemen, I would be willing to permit the organs to be removed once he is pronounced dead. I would prefer to do it that way. Is it going to cause you any problems, Mr. Ledwin?
      MR. LEDWIN: Technically when organs are retrieved the individual is maintained on life support equipment and once that equipment is — the organs are removed surgically and at the time of removal the patient is then pronounced dead at the OR. In other words, if we take the respirator off — that is the only support now. There is no medication that is being used. If we were to remove that then the functions would terminate. It is done simultaneously. The harvesting team would be brought out from the medical school.
      THE COURT: It is a situation, however, where if you didn’t have the permission to remove the organs you would simply feel to be within your authority to terminate the life support systems and pronounce the man dead?
      MR. LEDWIN: Yes. He has met all the criteria established by the coroner’s office and the criteria for brain death.
      THE COURT: All right.
      MR. HEED: If I may, Your Honor, we have the petition and order in the matter of John Doe. I should change that, I would believe, to Lawrence Brown. I am going to. I hope the Judge will forgive my scribbling.
      THE COURT: Well, you are going to have to forgive mine because I am going to change in the order too.
      All right. You will see that that is filed?
      MR. HEED: Yes. Today, Your Honor.
      Thank you, Your Honor. Appreciate it.
      THE COURT: Thank you.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    616 A.2d 1
    COMMONWEALTH of Pennsylvania v. James M. KITTELBERGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 25, 1992.
    Filed Oct. 28, 1992.

      James A. Hickey, McMurray, for appellant.
    Edward M. Clark, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence entered following appellant’s conviction for driving in excess of the speed limit. The sole issue presented for our review is whether the Commonwealth sustained its burden of proving that the speed timing device utilized was of a type that had been approved by the Pennsylvania Department of Transportation (PennDoT) where the only evidence offered by the Commonwealth relating to this matter was the certificate of accuracy. For the reasons set forth below, we reverse the judgment of sentence and discharge appellant.

Before addressing the issue raised by appellant, we will briefly recount the relevant facts giving rise to this appeal. Appellant, James Kittelberger, was driving on interstate 79 during the late evening hours of November 14, 1990 when he was observed by Trooper Robert Rendar to be traveling in excess of the posted speed limit. As a result, appellant was given a speeding citation. Appellant contested his guilt and a hearing was held before a district justice on February 20,1991 following which appellant was convicted. A timely appeal from the summary conviction was then taken. A trial de novo was held on July 1,1991. After the close of his case, appellant challenged the sufficiency of the Commonwealth’s evidence as it related to the proof of approval of the radar gun by PennDoT. The trial court rejected appellant’s argument and again adjudged appellant guilty. Appellant was then immediately sentenced to pay a fine of $68.00. Post-trial motions, which renewed appellant’s objection to the insufficiency of the Commonwealth’s evidence, were timely filed and denied. This appeal followed.

Appellant questions whether the Commonwealth sustained its burden of proving that the speed timing device in this case was of a type which had been approved by the Pennsylvania Department of Transportation. In addressing this issue,

we note that our scope of review ..., where the lower court has heard the case de novo, is to determine whether or not the findings of fact are supported by competent evidence and to correct conclusions of law erroneously made. Also, the action of the lower court will not be disturbed on appeal except for [a] manifest abuse of discretion.

Commonwealth v. Gussey, 319 Pa.Super. 398, 402, 466 A.2d 219, 221 (1983) (citations omitted). We further recognize that the question raised by appellant presents a challenge to the sufficiency of the Commonwealth’s evidence. In reviewing matters of this type, the test is:

[wjhether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986), quoting Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 538-539 (1979). We will evaluate appellant’s claim and the decision of the lower court with these principles in mind.

To sustain a conviction for speeding, the Commonwealth must show beyond a reasonable doubt that: (1) an accused was driving in excess of the speed limit; (2) the speed timing device was approved by the Department of Transportation; and (3) the device was calibrated and tested for accuracy within the prescribed time period by a station which has been approved by the department. 75 Pa.C.S.A. § 3362(a) and § 3368(a)-(e); Commonwealth v. Hamaker, 373 Pa.Super. 510, 513, 541 A.2d 1141, 1142 (1988). Because only the Commonwealth’s proof relating to approval by the department is in dispute, we will focus our analysis on this element.

In sustaining its burden of proof, the Commonwealth need not produce a certifícate from PennDoT which expressly indicates approval of a particular speed timing device. Rather, the legislature has considerably lessened the Commonwealth’s evidentiary burden by enabling the courts to take judicial notice of the fact that the device has been approved by PennDoT, provided that the approval has been published in the Pennsylvania Bulletin. See 45 Pa.C.S.A. § 506 (providing for judicial notice) and §§ 724-725 (requiring Commonwealth agency regulations to be published in the Pennsylvania Bulletin); 75 Pa.C.S.A. § 3368(d) (requiring PennDoT to classify and approve speed timing devices by regulation).

As applied here, the certified record identified the radar gun used to measure appellant’s speed as a Falcon. N.T. 7/1/91 at 4-5. PennDoT has approved Falcon radar guns for use by the Pennsylvania State Police. 19 Pa.Bull. No. 50, Part I, at 5346 (December 16, 1989). Consequently, the Commonwealth could have established the requisite element of approval in this case merely by asking the lower court to take judicial notice of the fact that the department’s approval of the Falcon radar gun was published in the Pennsylvania Bulletin. 45 Pa.C.S.A. § 506. The Commonwealth concedes, and our own review of the certified record confirms, that the Commonwealth did not expressly ask the lower court to take judicial notice of the department’s approval of the Falcon radar gun. However, the Commonwealth maintains that it satisfied its evidentiary burden by introducing the certificate of accuracy.

The approach now urged by the Commonwealth was expressly rejected by the Pennsylvania Supreme Court in Commonwealth v. Perdok, 411 Pa. 301, 192 A.2d 221 (1963). In Commonwealth v. Perdok, the Commonwealth presented an argument which is virtually identical to that raised here in which it was suggested that the certificate of accuracy was sufficient to prove that the secretary had approved of the radar device. In declining to adopt the Commonwealth’s reasoning, our Supreme Court interpreted the Vehicle Code as only authorizing the admission of the certificate of accuracy to prove that the radar had been tested for accuracy and calibrated within the requisite time period prescribed by the statute. Commonwealth v. Perdok, 411 Pa. at 305, 192 A.2d at 224. The Supreme court then held that because the certificate of accuracy only proved the accuracy of the radar, additional proof of approval of the type of radar device was necessary to sustain a conviction for speeding. Id., 411 Pa. at 306-307, 192 A.2d at 225.

This court applied the same analysis employed in Commonwealth v. Perdok to a speeding conviction that arose under the Vehicle Code of 1976 and observed that “[s]ection 3368(d) only confers admissibility on the certificate of accuracy to prove the test was made within the required period and that the device was accurate. It does not, however, extend use of the certificate to proving approval of the type of device itself.” Commonwealth v. Nardei, 278 Pa.Super. 420, 422, 420 A.2d 612, 613 (1980) (emphasis in original). The Commonwealth, however, suggests that Commonwealth v. Nardei was wrongly decided because it relied upon Commonwealth v. Perdok. The essence of the Commonwealth’s contention is that Common wealth v. Perdok and its progeny are distinguishable because Perdok was decided under the Vehicle Code of 1959, which was subsequently repealed by the Vehicle Code of 1976. Notwithstanding the Commonwealth’s argument to the contrary, we find this to be a distinction without a difference.

The Vehicle Code of 1959, as amended by the Act of April 28, 1961, P.L. 108, No. 48, § 2, codified at 75 P.S. § 1002(d.1)(1), first permitted the state police to utilize radar to measure a motorist’s speed. The 1961 amendment further provided that no conviction could be maintained by use of radar unless the device had been specifically approved by the Secretary of Revenue and had been calibrated and tested for accuracy within the requisite time period by an official testing station appointed by the secretary. Id., codified at 75 P.S. 1002(d.1)(1) and (2). As noted by the Commonwealth, the Vehicle Code of 1959 and the amendments thereto were subsequently repealed by the Vehicle Code of 1976. Act of June 17, 1976, P.L. 162, No. 81, § 7.

Although the prior act was repealed, the Vehicle Code of 1976 re-enacted a provision which was substantially similar to that contained in the former act. Specifically, the 1976 version of the Vehicle Code continued to require proof of approval of the speed timing device by the Pennsylvania Department of Transportation as well as proof of calibration and testing for accuracy by a testing station that was appointed by the department. Act of June 17, 1976, P.L. 162, No. 81, § 1, codified at 75 Pa.C.S.A. § 3368(d). The primary difference in the requirements of the provisions of the vehicle codes thus appears to be that the 1976 Vehicle Code substituted the Department of Transportation in place of the Secretary of Revenue as the government unit responsible for approving the type of radar or other speed timing devices which are to be used by the police. As demonstrated by a comparison of the two versions of the Vehicle Code, the essential elements which the Commonwealth must prove to sustain a speeding conviction have remained unchanged. We therefore find the purported distinction posited by the Commonwealth to be insignificant.

The Commonwealth also relies upon this court’s decision in Commonwealth v. Gernsheimer, 276 Pa.Super. 418, 419 A.2d 528 (1980) for additional support. According to the Commonwealth, Gemsheimer should be construed as altering the requirements which must be demonstrated to sustain a speeding conviction such that the Commonwealth can establish approval of a specific speed timing device by PennDoT simply by introducing the certificate of accuracy and calibration of the device. Careful review of the discussion set forth in Gemsheimer reveals the Commonwealth’s suggested interpretation to be flawed.

The defendant in Gernsheimer asserted that the Commonwealth failed to establish the requirements of 75 Pa.C.S.A. § 3368(d) of the Vehicle Code of 1976. Commonwealth v. Gernsheimer, 276 Pa.Super. at 422, 419 A.2d at 530. More specifically, the defendant argued that the certificate of accuracy and calibration should not have been admitted into evidence because it did not contain an official seal on its face. Id., 276 Pa.Super. at 422-423, 419 A.2d at 530. The defendant further contested the admissibility of the certificate of accuracy and calibration on the basis that the police officer who testified at the hearing had not actually performed the aeeuracy/calibration tests on the speed timing device and was not present when the tests were performed. Id., 276 Pa.Super. at 423, 419 A.2d at 530.

In rejecting the defendant’s arguments, we applied the clear and unambiguous language of § 3368(d) and concluded that the statute did not require an official seal to be on the certificate of accuracy and calibration. Id. We also indicated that the certificate was admissible, despite the fact that the police officer who testified did not actually perform or observe the accuracy/calibration tests being performed, because the statute and departmental regulations promulgated in furtherance thereof did not contain these additional requirements. See id. See also 75 Pa.C.S.A. § 3368(d); 67 Pa.Code § 105.-13(d) (requiring either the electrical engineer, associate engineer or duly qualified technician to be present when the accuracy test is conducted) and § 105.15(b)(9) (requiring the individual performing the tests, inter alia, to sign and date the certificate forms). Because the alleged defects complained of by the defendant were not mandated by the statute or the department’s testing regulations, the Commonwealth was not required to demonstrate these additional matters to satisfy its evidentiary burden.

As demonstrated by the above discussion, this court did not alter the evidentiary requirements of 75 Pa.C.S.A. § 3368(d) so as to relieve the Commonwealth of its burden of demonstrating specific approval of the type of radar or other speed timing device by PennDoT. Gernsheimer only involved two narrow issues concerning the admissibility of the certificate of accuracy and calibration and the certificate appointing the testing station as an official testing station of speed timing devices. The defendant in Gernsheimer apparently did not specifically challenge the sufficiency of the evidence as it related to the element of approval of the specific device by PennDoT, and accordingly, this court did not address this matter. When placed within its proper context, Gernsheimer thus cannot be viewed as an attempt to dispense with the element of approval mandated by 75 Pa.C.S.A. § 3368(d). Our holding in Gemsheimer likewise does not support the proposition now urged by the Commonwealth, i.e., that the element of approval by PennDoT can be satisfied merely by introduction of the certificate of accuracy and calibration. We therefore find the Commonwealth’s reliance on Gernsheimer to be misplaced.

As a final point, the Commonwealth suggests that even were we to find the evidence insufficient, this court should nevertheless affirm appellant’s conviction by taking judicial notice of the fact that the radar device has been specifically approved by PennDoT. The Commonwealth essentially asks this court, under the guise of taking judicial notice, to remedy a fatal defect in its case by permitting it to introduce additional evidence on appeal.

This court has recognized that we may take judicial notice of a fact to the same extent as a trial court. Goff v. Armbrecht Motor Truck Sales, Inc., 284 Pa.Super. 544, 548 n. 4, 426 A.2d 628, 630 n. 4 (1980). However, it is well settled that we may not take judicial notice of facts which have not been noticed by the trial court and which have not been offered into evidence. See, e.g., Ware v. McKnight, 368 Pa.Super. 502, 506, 534 A.2d 771, 773, (1987), remanded on other grounds, 520 Pa. 89, 552 A.2d 666 (1988), citing Tallman v. Florey, 179 Pa.Super. 354, 357, 115 A.2d 752, 753 (1955); In re Estate of Brockerman, 332 Pa.Super. 88, 95, 480 A.2d 1199, 1202 (1984). Moreover, this court has stated that, “[o]n appeal, it is not our function to sit as a trial court and try the case de novo.” Commonwealth v. Wells, 322 Pa.Super. 380, 387, 469 A.2d 672, 675 (1983). In view of these authorities, we do not believe that the doctrine of judicial notice can be applied so as to permit the Commonwealth to introduce additional evidence on appeal where such evidence was not properly introduced at trial.

To its detriment, the Commonwealth chose to rely solely upon the certificate of accuracy and calibration to prove that the speed timing device had been approved by PennDoT. Such evidence, in and of itself, is insufficient to establish this element of the speeding offense. See Commonwealth v. Nardei, Commonwealth v. Perdok, Commonwealth v. Hamaker and Commonwealth v. Gussey, supra. Because the Commonwealth failed to sustain its burden of proof, appellant is entitled to an arrest of judgment on his conviction.

Judgment reversed. Appellant discharged.

      . Appellant indicates that he is appealing from the order denying his post-trial motion in arrest of judgment. A purported appeal from an order denying post-trial motions is procedurally improper because the appeal in a criminal proceeding lies from the judgment of sentence, i.e., the final order imposing sentence. See comments to Pa.R.Crim.P., Rules 1123 and 1410, 42 Pa.C.S.A. and Commonwealth v. Bolden, 472 Pa. 602, 610, 373 A.2d 90, 93 (1977). See also Commonwealth v. Doleno, 406 Pa.Super. 286, 288-289, 594 A.2d 341, 342 (1991); Commonwealth v. Yetsick, 402 Pa.Super. 615, 620-623, 587 A.2d 788, 790-792 (1991), allocatur denied, 529 Pa. 620, 600 A.2d 537 (1991); Commonwealth v. Schauffler, 397 Pa.Super. 310, 314, 580 A.2d 314, 316 (1990), allocatur denied, 525 Pa. 663, 583 A.2d 793 (1990); Commonwealth v. Hurst, 367 Pa.Super. 214, 217-218, 532 A.2d 865, 867 (1987); Commonwealth v. Eliason, 353 Pa.Super. 321, 323, 509 A.2d 1296, 1297 (1986), allocatur denied, 517 Pa. 592, 535 A.2d 81 (1987) (in which this court has discussed proper post-trial practice and has disapproved of appeals from orders denying post-trial relief). Thus, the appeal in this case is properly characterized as one from the judgment of sentence rather than an order.

      . 75 Pa.C.S.A. § 3362(a)(2).

      . The speed limit on this highway is fifty-five miles per hour. According to Trooper Rendar, radar indicated that appellant was traveling at a rate of seventy-one (71) miles per hour.

      . The trial court, in its brief opinion, failed to respond to the actual question presented by appellant.

      . As explained ante, at note 1, appellant has improperly appealed from the entry of the order denying his post-trial motions rather than from the judgment of sentence. Ordinarily, this appeal would be deemed untimely because it was not filed within the thirty-day period following imposition of sentence. However, we decline to fault appellant as the problem in this case arose because the trial court did not adhere to the correct post-trial procedures. We also recognize that this appeal was timely filed with respect to the order denying appellant’s request for post-trial relief. We have declined to quash the appeal in similar situations. See, e.g., Commonwealth v. Doleno, Commonwealth v. Yetsick, Commonwealth v. Schauffler, Commonwealth v. Hurst, and Commonwealth v. Eliason, supra. For these reasons, we will proceed to review the merits of this appeal.

      . We note that appellant additionally contests the insufficiency of the Commonwealth’s evidence relating to the third element, i.e., the department’s approval of the testing station, in his post-trial motions and in the argument portion of his brief. However, this particular claim is waived because appellant failed to properly preserve it for appellate review by specifically including it in his statement of questions. See Pa.R.A.P., Rule 2116(a), 42 Pa.C.S.A.; Commonwealth v. Unger, 494 Pa. 592, 595 n. 1, 432 A.2d 146, 147 n. 1 (1980); Commonwealth v. Jackson, 494 Pa. 457, 459 n. 1, 431 A.2d 944, 945 n. 1 (1981). Although we shall not address this argument, we agree with appellant that the evidence is insufficient on this basis because the trial transcript is devoid of any indication that the station which performed the accuracy and calibration tests had been approved by the Pennsylvania Department of Transportation.

      . As correctly noted by the Commonwealth, the Vehicle Code of 1959, as amended by the Act of April 28, 1961, P.L. 108, No. 48, § 2, codified at 75 P.S. § 1002(d.1) was in effect at the time Commonwealth v. Perdok was decided. Under the amended version of the Vehicle Code of 1959, the Secretary of Revenue was responsible for approving the types of radar or other speed timing devices used by the police. See Act of April 28, 1961, P.L. 108, No. 48, § 2, codified at 75 P.S. § 1002(d.1) and Commonwealth v. Perdok, 411 Pa. at 304, 192 A.2d at 224.

      . We reach similar conclusions with regard to Commonwealth v. Gussey, 319 Pa.Super. 398, 466 A.2d 219 (1983), which is also cited by the Commonwealth for the same proposition. In Commonwealth v. Gussey, the defendant challenged the admissibility of the certificate of accuracy and calibration on the basis that the date had been typed rather than handwritten. Id., 319 Pa.Super. at 408, 466 A.2d at 224-225. This court, citing Commonwealth v. Gernsheimer, rejected the defendant's argument on the basis that there was no requirement set forth in either § 3368(d) or the departmental regulations which mandated that the certificate of accuracy and calibration be completed, with the exception of the signatures of the tester, by means of handwriting instead of typing. Id., 319 Pa.Super. at 409, 466 A.2d at 225. We also noted that the Commonwealth had established the other elements of the offense relating to the department's approval of the speed timing device and of the testing station by properly asking the trial court to take judicial notice of these facts, as published in the Pennsylvania Bulletin. Id., 319 Pa.Super. at 408, 466 A.2d at 224. However, nothing in our discussion indicated that introduction of the certificate of accuracy and calibration, standing alone, would adequately demonstrate the elements of approval of the speed timing device or approval of the testing station. Commonwealth v. Gussey therefore does not support the holding posited by the Commonwealth in this case.


author: DEL SOLE, Judge:

text:
    616 A.2d 6
    COMMONWEALTH of Pennsylvania v. Thomas J. BISCHOF, Appellant.
    Superior Court of Pennsylvania.
    Argued June 3, 1992.
    Filed Nov. 2, 1992.

      Vincent J. Quinn, Chief Public Defender, Lancaster, for appellant.
    Craig W. Stedman, Asst. Dist. Atty., Lancaster, for the Com., appellee.
    Before CAVANAUGH, DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

Appellant, Thomas J. Bischof, takes this appeal from an order denying his motion to modify his parole violation recommitment order. The relevant facts are as follows. On December 16, 1988, Appellant pled guilty pursuant to a negotiated plea agreement before the Honorable Michael A. Georgelis of the Court of Common Pleas of Lancaster County. He was sentenced on count one, burglary, to time served to 23 months, and a $100 fine. On count two he was sentenced to time served to 23 months. The theft charge in count three was found to merge, and on counts four and five, criminal conspiracy, he was sentenced to probation for two years, to run concurrently with each other but consecutive to the burglary sentences.

On September 15,1989, a capias was issued charging Appellant, who was then in York County Prison on numerous new charges, with violating his parole. On October 16, 1989, the York County Court of Common Pleas sentenced Appellant to a term of imprisonment for three to six years on the new charges. Approximately 18 months later, on July 23, 1991, after the parole period had expired, the Commonwealth brought the Appellant before the Court for a parole violation hearing. This hearing was continued until September 27, 1991, because Appellant did not have counsel, and then continued again for reasons unknown to Appellant. Finally, the hearing was held on October 8, 1991, just 8 days shy of two years from his conviction on the charges which caused the parole violation.

Appellant contends that the court erred in revoking his parole because contrary to the provisions of Rule 1409, Pa. R.Crim.P., 42 Pa.C.S., his hearing on parole revocation was not held, as “speedily as possible”, following the authorities’ discovery that a parole violation had occurred. On numerous occasions this court has been called on to review the question of whether this Rule has been violated and, consequently, has developed a three-part test to determine whether a post-conviction delay of a parole revocation hearing is reasonable. When evaluating the reasonableness of this delay we consider the length of the delay, the reason for the delay, and the prejudice to the defendant. Commonwealth v. Holmes, 248 Pa.Super. 552, 375 A.2d 379 (1977); Commonwealth v. Nance, 290 Pa.Super. 312, 434 A.2d 769 (1981); Commonwealth v. Pelzer, 319 Pa.Super. 282, 466 A.2d 159 (1983).

We have previously held that the period of delay is to be measured from the date of conviction or entry of the guilty plea to the date the revocation hearing is held. Commonwealth v. Reed, 277 Pa.Super. 94, 419 A.2d 677 (1980); Commonwealth v. McCain, 320 Pa.Super. 394, 467 A.2d 382 (1983). In the instant case, the Appellant was convicted of the probation-revoking offense on October 16, 1989. Appellant’s hearing was not held until October 8, 1991. This delay involved a period of approximately two years. Although we have found one case in which a 10 month delay was found to be reasonable, Pelzer, supra, 319 Pa.Super. 282, 466 A.2d 159, we have found no case in which such a protracted length of time has been deemed reasonable. See, McCain, supra, 320 Pa.Super. 394, 467 A.2d 382, (12 month delay was unreasonable); Holmes, supra, 248 Pa.Super. 552, 375 A.2d 379, (221/2 month delay was unreasonable); Commonwealth v. Jones, 242 Pa.Super. 558, 364 A.2d 414 (1976), (91/2 month delay was unreasonable).

However, the requirement of a speedy hearing embodied in the Rule is not to be determined solely by the length of time between conviction and hearing. We must analyze the circumstances surrounding the reasons for the delay to see if the Commonwealth acted with diligence in scheduling a revocation hearing. We have held in that past that where an appellant successfully conceals the violation or evades arrest, then any consequent delay will be attributed to the appellant, and certain delays incident to the scheduling of revocation hearings are reasonable. Holmes, supra, 248 Pa.Super. at 558, 375 A.2d at 381. But in the instant case we can not find that the Commonwealth acted with diligence.

A detainer was issued in September of 1989, after the parole officer learned of Appellant’s incarceration for other crimes, and Appellant was convicted and sentenced on October 16, 1989. The reason for the delay given by the Commonwealth was that it was not sent a certified copy of Appellant’s conviction until February 11, 1991. This is approximately 15 months after the conviction. In all this time the parole department took no affirmative steps to ascertain the status of Appellant in regards to the new charges. Further, once the copy was received, it would be assumed that the Commonwealth would have expedited matters since the notification was so tardy. Nevertheless, even then the hearing was not scheduled until July 23, 1991, five months later. Even if, as the Commonwealth argues, we attribute the subsequent delay until September 27, 1991 to Appellant’s mixed signals regarding his desire to proceed pro se and the difficulties in finding appointed counsel, then the total period was still 22 months.

In Commonwealth v. Kane, 315 Pa.Super. 212, 461 A.2d 1246 (1983), we held that reliance on a certified copy of conviction before scheduling a probation revocation hearing is a useful policy, protecting the interests of the parties and promoting judicial economy by eliminating the need to call witnesses and/or produce evidence of the conviction or plea of guilty. However, in Kane the Commonwealth received its certified copy of the conviction just 3 months after sentencing, filed a motion for a probation violation hearing within three days, and the hearing was then held two weeks later.

Given that in the instant case that the delay in receiving the copy was 15 rather than 3 months, and that the hearing was not held within weeks after receiving the certification, but five months later, the instant circumstances are distinguishable from those in Kane. We do not find that the Commonwealth proceeded with diligence.

Our inquiry does not end, however, for we must also determine if Appellant was prejudiced by the delay. While noting that he was incarcerated on the York County charges during the entire period the parole violation was pending, Appellant contends that the fact that his original parole period expired is evidence of, at least, minimum prejudice. He also maintains that the delay caused him to be unable to participate in certain prison programs because the parole violation charge acted as detainer.

In Commonwealth v. Holmes, supra, the court was considering a similar claim of prejudice made by an appellant. The court found that neither the fact that the appellant’s detainer adversely affected his psychological rehabilitation or his right to participate in certain prison programs, asserted an interest protected by due process. The court went on to hold that a certain amount of prejudice “necessary follows from the mere fact of the expiration of the parole period.” Id., 2 48 Pa.Super. at 560, 375 A.2d at 382. Although the court concluded this prejudice was minimal, the prejudice considered with the extraordinary length of delay (twenty months) and the lack of diligence or explanation, was sufficient reason for the court to conclude that the appellant was denied his right to a speedy hearing and reverse the order revoking his parole.

Holmes was later cited in Commonwealth v. Marchesano, 348 Pa.Super. 387, 502 A.2d 597 (1986) for the proposition that a certain amount of prejudice necessarily follows from the fact that the probationary period has expired. The Supreme court had an opportunity to rule on the Marchesano case, Commonwealth v. Marchesano, 519 Pa. 1, 544 A.2d 1333 (1988), and it concluded that the superior court’s prejudice “analysis was tantamount to involving a per se rule finding prejudice to exist whenever a revocation hearing is held after the period of probation has expired.” Id. at 7, 544 A.2d at 1336. Determining that such a rule was “without foundation” Id., the court set forth the proper consideration for making a determination of prejudice:

Prejudice in this context has been interpreted as being something which would detract from the probative value and reliability of the facts considered, vitiating the reliability of the outcome itself. One specific purpose of our rule in requiring a prompt revocation hearing is to avoid such prejudice by preventing the loss of essential witnesses or evidence, the absence of which would contribute adversely to the determination. Another is to prevent unnecessary restrain of personal liberty.

Id.

Appellant fails to allege that he suffered prejudice as defined by our Supreme Court. Appellant was already incarcerated on the charges for which his parole was revoked, and was therefore not occasioned any loss of personal liberty because of the delay in holding his revocation hearing. Likewise, Appellant suffered no harm in the way of favorable evidence or witnesses lost to him because of the delay; Appellant’s guilt on the parole-revoking charges was conclusively established by his conviction of those offenses. Commonwealth v. Kane, 315 Pa.Super. 212, 461 A.2d 1246 (1983). We therefore conclude that Appellant is not entitled to relief based upon a claimed violation of his right to a speedy hearing.

Appellant also argues that his sentence should be vacated because the court ordered him to serve consecutive periods of incarceration on the two sentences for which he was recommitted for violating his parole, when these sentences were originally ordered to run concurrently. With this claim we agree.

Upon finding that Appellant had violated the terms of his parole, the trial court directed that he serve the unexpired balance of his term, which was twenty-three months on each of two counts, and further directed that the sentences be served consecutively. However, after making the determination that the parole granted on two specific sentences had been violated, the trial court only had authority to recommit Appellant to serve out the balance of the terms from which he had been paroled, which terms were to run concurrently. To change sentences which were originally made to run concurrently to consecutive sentences constitutes an enhancement of sentence, which has certain constitutional implications. Commonwealth v. Hermankevich, 220 Pa.Super. 197, 286 A.2d 644 (1971). The maximum period for which Appellant could be sentenced after revoking the parole set on these charges was limited to the maximum term under which Appellant was originally sentenced because a “modification of a sentence imposed on a criminal defendant which increases the punishment constitute[s] further or double jeopardy.” Commonwealth v. Cole, 222 Pa.Super. 229, 231, 294 A.2d 824, 825 (1972) See also Commonwealth v. Raynes, 349 Pa.Super. 314, 503 A.2d 17 (1986).

This case must be contrasted with those cases where the court revokes a probationary sentence and has the authority to modify the original probationary period by lengthening it and by adding reasonable conditions. Commonwealth v. McBride, 289 Pa.Super. 396, 433 A.2d 509 (1981). This is so because in those cases the order of probation is a conditional order and not a final order for double jeopardy purposes. Commonwealth v. Miller, 358 Pa.Super. 219, 516 A.2d 1263 (1986). However in the instant case the court sought to modify, not a probationary period, but a fixed sentence. This it cannot do. In general, a sentencing court has jurisdiction to modify a sentence only in the first 30 days after imposition. Commonwealth v. Thomas, 301 Pa.Super. 333, 447 A.2d 994 (1982). Accord, Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985) (court lacked jurisdiction to modify a sentence, more than 30 days after imposition, so as to run consecutive to another sentence); Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984). The court’s modification here was untimely. An appropriate order would have recommitted Appellant to serve out the unexpired balance of his sentences, such sentences to run concurrently with each other.

For the above reasons, we reverse the order of the trial court, and remand the case for resentencing consistent with this opinion. Jurisdiction relinquished.

      . An exception exists where the trial court discovers that the sentence originally imposed was illegal, in which case it may alter the sentence beyond the 30-day period. Commonwealth v. Pastorkovic, 390 Pa.Super. 1, 567 A.2d 1089 (1989). There is no claim here that the original sentence imposed was illegal.


author: TAMILIA, Judge:

text:
    616 A.2d 10
    COMMONWEALTH of Pennsylvania v. Robert J. SEARS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1992.
    Filed Nov. 6, 1992.

      Ronald A. Turo, Carlisle, for appellant.
    Alison Taylor, Asst. Dist. Atty., Carlisle, for Com., appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   TAMILIA, Judge:

Robert Sears takes this appeal from judgment of sentence imposed February 11, 1992. Following a nonjury trial, appellant was found guilty of involuntary deviate sexual intercourse and corruption of minors, and subsequently sentenced to a total term of six (6) to twelve (12) years imprisonment.

The facts of this case, as found by the suppression court, are as follows.

United States Postal Inspector, Thomas Kochman, received information from the Lancaster County District Attorney in April, 1990, that defendant, Robert J. Sears, had been investigated for possible criminal violations involving minors. The District Attorney had information from a juvenile informant that defendant had showed him pictures of naked boys. The District Attorney also knew that Sears had a record in the State of Florida for child molestation. This information was relayed to the Postal Inspector since defendant had moved from Lancaster to Mechanicsburg, Cumberland County.

In April, 1990, Inspector Kochman commenced a Federal investigation of Sears’ activities regarding children. He sent defendant the following letter:

I really don’t know how to start this letter. Maybe I’m making a mistake. I found your name in a box of magazines that I found in the attic in his (my uncle’s) house. I sent this letter to an address in Lancaster but they sent it back saying you moved with your new address. I hope you’re still there. If I’m right I think we may have a lot of likes in common when it comes to our private lives. If you don’t know what I’m talking about please destroy this letter. I might be out on a wrong limb. I hope I will hear from you in the future.

Defendant responded to this letter and two other letters that Inspector Kochman wrote to him. In these letters, defendant, inter alia, provided information as to his sexuality. In the last letter received by Inspector Kochman on June 6, 1990, defendant stated that he would be on vacation from June 13 to 21, and would “have an 8 yr. old for the week.”

Inspector Kochman enlisted the assistance of Special Agent, Dennis Guzy, of the Office of the Attorney General of Pennsylvania, Child Abuse Prosecution Assistance Unit, to act in an undercover capacity. Because he was concerned that defendant had indicated he would have an eight-year-old boy staying with him as of June 13, Inspector Kochman obtained approval from a United States Attorney, and the Chief Postal Inspector, to utilize a consent interception of Agent Guzy calling defendant and posing as the letter writer. The telephone call was made on June 12. Part of the recorded conversation is set forth in an affidavit for a search warrant issued on June 13, 1990, for the search of defendant’s residence. The warrant was obtained on the affidavit of Chief Rodney Whitcomb, of Mechanicsburg, relating the information he had received from Special Agent Dennis Guzy, as follows:

On June 7, 1990, Special Agent Guzy met with Postal Inspector Thomas Kochman, United States Postal Inspection Service, who stated that, pursuant to his duties as a child pornography specialist, he did review an investigation regarding Robert Sears, white male, current residence 203 East Main Street, Mechanicsburg, Cumberland County, Pennsylvania 17055.
Pursuant to that review, Kochman, in an undercover capacity, did, via U.S. Mail, contact Sears on April 24, 1990. An exchange of correspondence occurred between Kochman and Sears, in which Sears indicated he did have contact with an eight-year-old male named “Bobby”. Furthermore, Sears indicated that this juvenile would be residing with him beginning June 14, 1990.
On June 8, 1990, Special Agent Guzy did receive information from Detective John Barwick, Sex Crimes Unit, Duvall County Sheriffs Office, that Sears had a series of arrests stemming from sexual contact with a seven-year-old juvenile male, an eight-year-old juvenile male, and a fifteen-year-old juvenile male. Additionally, information was received from Detective Barwick that Sears was convicted of child fondling, lasciviousness, and indecent assault on December 17, 1980, regarding the fifteen-year-old juvenile male. The remaining cases, relating to the seven-year-old male and the eight-year-old juvenile males, were dropped in consideration of the ages of the children.
On June 12, 1990, Special Agent Guzy, utilizing electronic surveillance equipment, administered by Inspector Koch-man with the necessary approval, did telephonically contact Sears. At that time, Sears admitted to currently having an eight-year-old juvenile male named “Bobby” living with him. He further admitted deviate sexual contact with this juvenile male. Sears further stated he had a locked facility where he keeps pornographic material.

On June 13, Agency Guzy, while wearing a consent body wire that was also approved by the United States Attorney and the Chief Postal Inspector, and posing as the person who had written the three letters to defendant and who had talked to him on the telephone on June 12, went to defendant’s residence. Defendant had the juvenile at the house, and after some conversation, offered the boy to Agent Guzy for the purposes of engaging in sexual acts. At that point, Agent Guzy signaled Agent Kochman, Chief Whitcomb, and another Mechanicsburg police officer who were waiting outside. They entered the house, and Chief Whitcomb arrested defendant on the current charges.

(Slip Op., Bayley, J., 6/6/91, pp. 1-4.)

The sole issue presented in this appeal is whether the trial court erred, as a matter of law, in allowing the Commonwealth to present testimony based on a federal consensual wiretap, where the Commonwealth failed to follow the strict procedures and requirements of the Pennsylvania Wiretap Act, by obtaining a court Order or prior approval of the Attorney General of Pennsylvania or the District Attorney of Cumberland County.

The Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701 et seq., provides, in pertinent part:

It shall not be unlawful under this chapter for:

(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities where:
(i) such officer or person is a party to the communications; or
(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom.

18 Pa.C.S. § 5704(2). The Wiretap Act also provides:

Any person who, by any means authorized by the laws of another state or the Federal Government, has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose such contents or evidence to an investigative or law enforcement officer and may disclose such contents or evidence where otherwise admissible while giving testimony under oath or affirmation in any proceeding in any court of this Commonwealth.

Id., § 5717(c).

Appellant does not contend that the electronic interception violated the federal wiretap statute, 18 U.S.C. § 2510 et seq., and from our examination of the record we find no such violation. Therefore, absent a showing by appellant that “the interception violated the federal statute or that the law enforcement officials of the Commonwealth knowingly attempted to circumvent the provisions of the Commonwealth’s Wiretapping Act,” the trial court did not err in admitting the recording into evidence. Commonwealth v. Mehalic, 382 Pa.Super. 264, 270, 555 A.2d 173, 176 (1989); see Commonwealth v. Trignani, 334 Pa.Super. 526, 483 A.2d 862 (1984); Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744 (1984).

For his part, appellant relies on our Supreme Court’s recent decision in Commonwealth v. Hashem, 526 Pa. 199, 584 A.2d 1378 (1991). In Hashem, the defendant was arrested and charged with various crimes as a result of evidence gathered by Commonwealth authorities through the use of electronic surveillance of telephone communications. The Supreme Court overturned the defendant’s convictions because the Commonwealth failed to comply with the requirements of section 5718 of the Pennsylvania Wiretap Act, relating to the disclosure of communications concerning other offenses. Significantly, however, the case did not involve the use of federal wiretaps, and as such, we find Hashem distinguishable from and inapplicable to the facts of this case.

As the suppression court further noted:

We find as a fact that law enforcement officials did not deliberately circumvent the requirements of the Pennsylvania Electronic Surveillance Control Act. Neither Deputy [Attorney General] Barton, Agent Guzy, Inspector Koch-man, nor the Assistant District Attorney of Cumberland County intended to utilize Federal electronic surveillance procedures to circumvent any laws of the Commonwealth. In June 1990, none of the State officials would have known about the danger to the child in Sears’ home if Inspector Kochman had not sought their assistance. Neither the Attorney General, the District Attorney of Cumberland County, nor the Mechanicsburg Police had any active investigation regarding Sears at that time.
After defendant moved to Cumberland County from Lancaster County, the District Attorney of Lancaster County contacted the Postal Inspector and provided him with the information known about Sears. Inspector Kochman legitimately started a Federal investigation and properly utilized the assistance of State officials as his investigation and events unfolded indicating an immediate danger to a child who was staying in Sears’ home. This type of coordination between Federal, State and local authorities is routine in investigations involving pedophiles.

(Slip Op. at 9-10.)

Much is made of the “exigent circumstances” attendant to modern narcotics investigation, and the concomitant need for rapid response by investigators. These exigencies are no less present in cases of suspected child abuse, where, unlike most instances of drug trafficking, the victims are truly innocent and often entirely helpless. Our careful review of the record discloses nothing but the commendable and prompt investigation of state and federal law enforcement officials, acting in concert.

[I]t is common practice in law enforcement circles for federal and state law enforcement personnel to exchange information and to offer assistance to one another. Therefore, we must conclude that the use in this Commonwealth of taped conversations secured through a legally authorized federal wiretap is not in contravention of the Pennsylvania anti-wiretap statute, and that any evidence disclosed by such means may be admissible in our courts. To reach any other result ... would impose severe restrictions on this Commonwealth’s law enforcement personnel.

Trignani, supra, at 534, 483 A.2d at 865-866.

As we find no evidence the Commonwealth attempted to circumvent the Pennsylvania statute, and followed the provisions of section 5717(c), compliance with section 5704(2) was unnecessary. We therefore find no error by the trial court, and we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 3123.

      . Id., § 6301.

      . The trial court adopted the factual findings of the suppression court as its own. See Slip Op., Hess, J., 10/14/91.


text:
    616 A.2d 14
    COMMONWEALTH of Pennsylvania v. Kim L. McMULLEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1992.
    Filed Nov. 6, 1992.

      Charles J. Kroboth, Jr., Bellefonte, for appellant.
    Robert B. Stewart, III, Asst. Dist. Atty., Huntingdon, for Com., appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   TAMILIA, Judge:

On December 8, 1990, appellant, Kim Lee McMullen, was found guilty of second degree murder and burglary and was immediately sentenced on the murder conviction to mandatory life imprisonment. Appellant’s post-trial motions were denied and on December 31, 1991 he was sentenced to eleven (11) months to five (5) years imprisonment on the burglary conviction. McMullen filed separate appeals from the December §, 1990 and December 31, 1991 judgments of sentence and, sua sponte, this Court consolidated the matters for purposes of this appeal by Order dated March 18, 1992. The facts pertinent to this appeal follow.

During the early morning hours of February 24,1985 a food store known as the Grocery Box was burglarized. The perpetrator of the crime was not caught. Eight days later, on March 4, 1985, the body of Dominic Barcelona, a 30-year old man who suffered from schizophrenia, was recovered from Black Log Creek, not far from the Grocery Box. Barcelona’s death was ruled an accidental drowning. More than five years later, in January of 1991, upon hearing rumors the burglary and drowning were somehow related, the Pennsylvania State Police reopened both investigations. Appellant, who at the time the investigations were reopened was incarcerated on unrelated charges, gave a statement averring he and another man, Adam Wiser, burglarized the Grocery Box and, upon fleeing the scene, encountered Barcelona on a nearby bridge. Appellant stated he heard a noise, turned, saw Barcelona lying on the ground and then watched as Wiser threw Barcelona into the creek. Appellant was then charged, via two separate informations, with burglary and criminal homicide. A jury found him guilty on both counts, he was sentenced and this appeal followed.

Appellant presents six issues for our consideration, beginning with the contention the court erred by failing to quash or dismiss, on the basis of a defective information, the charge of criminal homicide. The information filed relative to Barcelona’s death charged appellant with violating 18 Pa.C.S. 2501, Criminal homicide, and averred appellant did “unlawfully, intentionally, knowingly, recklessly or negligently cause the death of another human being.” Appellant argues the Commonwealth’s failure to specifically charge him with degree(s) of murder and/or grade(s) of manslaughter, as opposed to the general charge of criminal homicide, constituted reversible error. In the alternative, appellant submits the mere recitation of the language of the criminal homicide statute, without more, did not provide him with sufficient notice of the crime against which he must defend.

A criminal information must inform the defendant of the crime with which he is charged and must be read in a common sense manner. Commonwealth v. Badman, 398 Pa.Super. 315, 580 A.2d 1367 (1990). An information will be regarded as sufficient in law provided it serves to notify the accused of the charges filed against him. Commonwealth v. Williams, 323 Pa.Super. 512, 470 A.2d 1376 (1984). “[T]he several types of homicide, namely, murder of any of the three named degrees and voluntary and involuntary manslaughter are constituent subsidiary offenses within the single major offense [of criminal homicide.]” Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977). In Badman, supra, the court found the language did “kill or take part in the killing” of the victim was sufficient to put the defendant on notice of the crime with which he was charged. Id. at 324, 580 A.2d at 1371. Contrary to appellant’s contention, we find Badman lends support to the trial court’s finding the information adequately advised appellant of the crime with which he was charged. See Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744 (1984) (informations are sufficient where crimes charged are substantially in the language of the statute). We find the information alleging criminal homicide clearly notified appellant he was being charged with the death of Barcelona and advised him of the crimes which he was compelled to defend.

Next, appellant argues the court erred by consolidating for trial the burglary and homicide charges. Appellant avers the. Commonwealth failed to follow the procedural requirements for consolidation as set forth in Pa.R.Crim.P. 1127, Joinder-Trial of Separate Indictments or Informations, and also did not meet the substantive requirements for consolidation.

The Commonwealth concedes it failed to file a written motion for consolidation in compliance with Pa.R.Crim.P. 1127B, but argues that procedural defect cannot be the basis for a new trial since, substantively, joinder was mandated. We agree.

This Court has found the absence of a pretrial motion to consolidate does not preclude joinder provided the court has reasoned, in its discretion, all charges arose from the same criminal episode. See Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983). Although appellant opposed joinder as part of his omnibus pretrial motion, the court found the crimes were inextricably entwined and we have been presented with no evidence to disturb the trial court’s ruling.

Appellant next argues because there was no indication Barcelona’s death was anything other than an accident, the Commonwealth failed to establish a corpus delicti and the court erred by admitting appellant’s inculpatory statements into evidence. Although appellant agrees it is the law in this state in order to establish the corpus delicti necessary to levy criminal homicide charges the Commonwealth must present independent evidence consistent with homicide, appellant contends corpus delicti will be found only if the circumstances surrounding the death are more consistent with a homicide than an accident or other unlawful cause and cites Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980), in support of this argument. Appellant argues the Commonwealth’s failure to establish Barcelona’s death was more likely than not a homicide precludes the admission into evidence of his statement admitting involvement in Barcelona’s untimely demise.

In ruling appellant’s inculpatory statement admissible the trial court followed Commonwealth v. Boykin, 450 Pa. 25, 298 A.2d 258 (1972), which held the medical examiner’s testimony the decedent died from suffocation, a cause of death consistent with either criminal homicide or accident, was sufficient proof of corpus delicti to permit introduction of defendant’s extrajudicial statement. In the matter before us, despite appellee’s argument independent corroborative evidence of corpus delicti is insufficient if the evidence is merely equally consistent with noncriminal acts as criminal acts, the trial court reasoned because Boykin had not been expressly overruled it remained the black letter law of this state. We disagree.

Prior to Boykin, independent corroborative evidence was insufficient to establish corpus delicti if it was merely equally as consistent with accident as with crime. Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (1967). Despite the Supreme Court’s obvious change of heart expressed in Boykin in 1980 the Supreme Court reverted to its posture set forth in Leslie. Byrd, supra. In Byrd, supra, when presented with an argument the defendant’s inculpatory statement was erroneously admitted into evidence on the ground the corpus delicti for neither crime with which appellant had been charged had been established, the Byrd Court cited Leslie for its holding evidence equally consistent with a crime as a noncrime was insufficient to establish corpus delicti. As recently as 1991 the Honorable Justin Johnson of this Court relied on Byrd when reversing a conviction for the unlawful use of lights while hunting, where the only evidence, blood in the truck and a deer hair, failed to establish, more likely than not, the animal was killed by illegal as opposed to legal, i.e. roadkill, means. Commonwealth v. Forman, 404 Pa.Super. 376, 590 A.2d 1282 (1991). We find although not expressly overruled, the corpus delicti principle adopted by the Boykin Court as it pertains to the issue before us has been impliedly overruled by subsequent caselaw.

The coroner in this case ruled Barcelona’s cause of death was drowning. Although an autopsy revealed the decedent had a large bruise and laceration on his forehead, it is reasonable to conclude this injury could have been sustained accidentally or, as the Commonwealth avers, by criminal means. There is no convincing evidence to indicate Barcelona’s unfortunate death was more consistent with a homicide than with an accident. See Byrd and Forman, supra. Accordingly, we find the court erred by admitting appellant’s statement into evidence. We hereby vacate the convictions and judgments of sentence and remand for a new trial in accordance with this Opinion.

Jurisdiction relinquished.

      . 18 Pa.C.S. § 2502(b).

      . Id., § 3502.

      . In view of our disposition of this appeal, we need not address appellant’s remaining arguments.