source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    504 A.2d 278
    COMMONWEALTH of Pennsylvania v. Elwood MILESHOSKY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 4, 1985.
    Filed Jan. 28, 1986.

      Vincent J. Ziccardi, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   WICKERSHAM, Judge:

Elwood Mileshosky was tried before the Honorable Angelo A. Guarino and a jury in March of 1980 on various charges relating to an incident with three young schoolgirls on September 11, 1979.

Q. Now, when you got into the woods area, can you tell us what happened from that point?
A. He said — Colleen started running. He said, “Get back here or I’ll blow off your head.” Tara and I screamed. Colleen came back. Do you want me to tell you what happened?
Q. Yes.
A. Then he said, “All right. Now, everybody be quiet and pull up their skirts.” And I turned around and I said, “No.” I said, "You’re a phony. You’re a fake. That’s only a water pistol. What are you trying to do?”
He said, “you want to feel it in your side?”
I said, “No.”
He said, “feel the gun.” So he put it out. I put my hand on it to see, and he pulled it back.
Q. What did the gun feel like?
A. A heavy metal.
Q. Did you believe at that time it was in fact a real gun?
A. Yes. So then he said, “Pick up your skirts,” again. I turned around and said, “No. can’t. I’m getting real nervous.”
* * * * * *
He pushed me on the ground and he just pushed me back, broke my necklace. I was sitting on the ground shaking.
Then he told my sister and Colleen to pick up their skirts and pull down their panties: So they pulled them down. He—
A. (Continued) Then he told Colleen to come. He said, “Come here.” He told her to kneel down in front of him. That’s — He pulled down his jogging pants.
Q. What kind of clothing was he wearing at the time? A. He had a white like football jersey on that came right above the elbow. It had a red rim around it, and then it had red block lettering on it. And medium blue jogging pants with red stripes along the side, and gold and blue [jogging] shoes.
Q. Okay. And now you described that he took some action toward Tara and Colleen at that point. Can you describe for us nice and slow what he did?
A. Well, after he pulled down his pants, Colleen said— saw like there’s a belt around his stomach. And he said, “Haven’t you ever seen a c— before?” Because that’s when he pulled out his penis.
******
Then he said, “Come here.” She kneeled in front of him and he took out his penis and he said, “Put it in your mouth.”
So like she was pulling away, and he was like putting it in farther, farther. Then he told her to suck on it. So I guess she did for a while., Like it was almost a minute. Then like she kept on trying to pull her head back, but he was holding her by her hair. He finally let her go.
Then he said, “Okay. I’ll be there for a while.”
He told my sister to come in front of him and kneel in front of him. And in order for her to do that he started playing with his penis.
Q. Did you sister kneel in front of him!
A. Yes, she did.
Q. While she was kneeling in front of him, is that when he was playing with his penis?
A. Right before she knelt in front of him.
So then he said, “Put it in your mouth.” So she put it in. He started to ejaculate. And he said, “Swallow it.” And my sister just kept on gagging[.]

N.T., March 19, 1980, 3.44-3.48.

He was convicted of terroristic threats and simple assault as to all three girls and involuntary deviate sexual intercourse as to two of the girls and possession of an instrument of crime generally. He was later sentenced to an aggregate term of four to sixteen years. An appeal was taken and judgment of sentence affirmed. Commonwealth v. Mileshosky, 300 Pa.Super. 613, 446 A.2d 692 (1982). (Petition for allowance of appeal denied in the Pennsylvania Supreme Court on March 29, 1983.)

A P.C.H.A. petition was filed and denied on April 25, 1984.

The present appeal followed.

Appellant presents the following issue for our consideration:

Should this P.C.H.A. Petition case be remanded to allow the filing of an amended Petition, to consider, inter alia, whether trial counsel was ineffective in failing to call witnesses for the defense?

Brief for Appellant at 3.

In his opinion dated June 5, 1984 denying P.C.H.A. relief, Judge Blake states that:

In the petition under consideration the defendant maintains that he is entitled to relief from the judgment of sentence in this case because of “after discovered evidence.” This contention is patently frivolous. The so called after discovered evidence claim merely questions the reliability .of the victims, identification of defendant as the perpetrator of the sexual assaults.
In this case it must be noted that the victims identified the defendant at the preliminary hearing at the suppression motion and at trial. The Superior Court specifically found that the denial of the motion to suppress identification was a correct ruling. Therefore, the question of identification has been fully and finally litigated against the defendant.
It is well settled that the defendant is not entitled to relief in a petition under the Post Conviction Hearing Act merely because he raises a new or different theory as a basis for his previously adjudicated claim where the precise issues was decided adversely to him. Commonwealth vs. Slavik, 449 Pa. 424 [297 A.2d 920] (1972). In addition, it is well settled that an issue which has been litigated and decided adversely to the defendant may not be relitigated under the guise of ineffective assistance of counsel. Commonwealth vs. Jones, [488 Pa. 270] 412 A.2d 503 (1980).
The defendant’s claim must also fall if it is based upon the theory of after discovered evidence. It is well settled that in order to justify the grant of a new trial on the basis of after discovered evidence four criteria must be met. They are, (1) the evidence must have been discovered after the trial, (2) it must be such that it could not have been obtained at the trial by reasonable diligence, (3) it must not be cumulative or merely impeach credibility, (4) it must be such as would likely compel a different result. Commonwealth vs. Schuck, 401 Pa. 222 [164 A.2d 13] (1960).
The defendant has failed to meet the test set forth in the Schuck case and its progeny and therefore his claim for relief on the basis of after discovered evidence must also fail.

We draw the following conclusions of law:

1. Defendant is not entitled to relief on the basis of after discovered evidence.
2. Defendant is not entitled to relief on the basis of a claim of mis-identification of defendant by the victims in this particular case.
Thus, it is clear that the defendant is not entitled to the relief he seeks in the instant proceeding. Accordingly and for the foregoing reasons, we have heretofore denied his “motion for new trial based on after discovered evidence under Pennsylvania Rule of Criminal Procedure 1123(d)” which in reality was a Petition for Relief under the Post Conviction Hearing Act.

Lower ct. op. at 3-6.

In his brief appellant, represented by Vincent J. Ziccardi, Esquire seeks a remand to amend his P.C.H.A. petition to allege ineffectiveness of trial counsel. Averments of ineffective assistance of trial counsel are properly made on appeal, which is the first instance in which appellant is represented by counsel other than trial counsel. See: Commonwealth v. Johnson, 479 Pa. 60, 62, n. 3, 387 A.2d 834, 834, n. 3 (1978); Commonwealth v. Cimorose, 330 Pa.Super. 1, 7, n. 2, 478 A.2d 1318, 1321, n. 2 (1984).

The problem, however, is that the claimed ineffectiveness is “the failure of trial counsel to call witnesses for the defense.” (Appellant’s brief at 7.)

What we said in Commonwealth v. Williams, 344 Pa.Super. 493, 496 A.2d 1213 (1985) is pertinent here:

It has also been alleged that trial counsel was ineffective “for failing to interview and call certain witnesses at trial who would have impeached the victim’s credibility.” This is inadequate. Appellant has neither identified the witnesses nor disclosed the nature of their contribution to the fact finding process. Counsel will not be deemed ineffective in a vacuum. See: Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983) (“appellant must allege more than a bare assertion that counsel failed to interview ‘X, Y or Z’ and their testimony would have been helpful, for claims of ineffectiveness cannot be abstractly reviewed, in a vacuum.”); Commonwealth v. Guest, 500 Pa. 393, 398, 456 A.2d 1345, 1348 (1983) (“appellant did not make any offer of proof as to the nature of the [uncalled witness’] testimony, nor does the record indicate in what respect the [witness’] testimony could have advanced appellant’s cause. In these circumstances, counsel’s failure to call the [witness] cannot be deemed to be ineffective assistance.”); Commonwealth v. Murray, 338 Pa.Super. 580, 585, 488 A.2d 45, 47 (1985) (“where a defendant alleges that his attorney was ineffective in failing to investigate, interview and/or call witnesses in his defense, there must be some demonstration that their testimony would be helpful.”); Commonwealth v. Whyatt, 327 Pa.Super. 491, 498, 476 A.2d 374, 377 (1984) (“there must be some showing that the witnesses not interviewed were equipped with information which might expand the admissible evidence.”). It is not enough merely to allege the existence of “certain witnesses ... who would have impeached the victim’s credibility.” “Rather, an appellant must also supply a factual basis indicating (1) the identity of the witnesses; (2) that counsel knew of the existence of the witnesses; (3) the material evidence that the witnesses would have provided; and (4) the manner in which the witnesses would have been helpful to his cause.” Commonwealth v. Torres, 329 Pa.Super. 58, 68, 477 A.2d 1350, 1355 (1984). See also: Commonwealth v. Bradford, 339 Pa.Super. 215, 224, 488 A.2d 628, 632 (1985). This appellant has failed to do. We will not remand for an evidentiary hearing merely because of a general, nonspecific averment that trial counsel should have interviewed or subpoenaed unidentified witnesses.

At 344 Pa.Superior Ct. 503-504, 496 A.2d 1218, 1219.

We will not remand for an evidentiary hearing merely because of a general, nonspecific averment that trial counsel failed “to call witnesses” for the defense.

Order affirmed.

TAMILIA, J., concurs in the result.

      . 42 Pa.C.S.A., §§ 9541-9551, Act of May 13, 1982, P.L. 417, No. 122, § 2.

      . Defendant’s P.C.H.A. counsel was also defendant’s trial and appellate counsel, Malcolm Berkowitz, Esquire.

      . In fact Mr. Berkowitz called a number of witnesses in defense.


author: CAVANAUGH, Judge:

text:
    504 A.2d 281
    EI BON EE BAYA GHANANEE a/k/a Oscar Holly, Appellant, v. Carol BLACK, Appellee.
    Superior Court of Pennsylvania.
    Submitted May 21, 1985.
    Filed Jan. 28, 1986.

      Oscar Holly, in propria persona.
    Carol A. Black, in propria persona.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   CAVANAUGH, Judge:

In this case, the appellant, ei bon ee baya ghananee, also known as Oscar Holly, was convicted in the Municipal Court of Philadelphia. The appellee, Carol Black, Esquire, was appointed by the court to represent Mr. Holly in the post conviction proceedings. Subsequently the appellant was notified that his motions for appeal to the Court of Common Pleas and/or motion for new trial had been dismissed.

The appellant then commenced a civil action against his attorney, the appellee herein, by filing a complaint in trespass in the Court of Common Pleas. The complaint was not artfully drawn, not having been prepared by a lawyer, but it alleged inter alia:

5. That the Defendant negligently and without due care permitted the Court of Common Pleas to treat said motion as a motion filed under the Post-Conviction Hearing Act, to wit:--
6. Paragraph five, by reference, is incorporated hereinafter as if set forth at lenght and Plaintiff avers that said Court, on or about June, 1983, did dismiss his said motion without prejudice because he didn’t have standing under said Post-Conviction Hearing Act.
7. That under Rule 902, Pa.R.App.P., the Plaintiff had the right to appeal said finding of the Court of Common Pleas.
8. That the Defendant negligently and without due care did not appeal the action of said Court to the Superior Court of Pennsylvania.
9. That the Defendant negligently and without due care did not refile the Plaintiff’s motion in the Court of Common Pleas.
10. That the Defendant negligently and without due care allowed the Plaintiff’s time for filing an appeal to run out.
11. That on or about November, 1983, Plaintiff learned from the Court of Common Pleas that his motion as stated in # 3, supra, had been dismissed.
12. Paragraph eleven, by reference, is incorporated hereinafter as if set forth at lenght and Plaintiff avers that the Defendant negligently and without due care did not inform him of the action of the Court.
13. Paragraphs four through eleven, by reference, are incorpoated hereinafter as if set forth at lenght and Plaintiff says that the Defendant negligently and without due care did abandon him and did not take any steps to protect and advance his interest.
14. Paragraphs three through thirteen, by reference, are incorporated hereinafter as if set forth at length.
15. Plaintiff avers that when he learned that his motion had been dismiss because of the negligence of the Defendant and that he had lost his appeal rights, that he was seized with great shock to his nervous system and did suffer great pain and mental anguish and he did suffer insomnia and loss of appetite and he did become depress and he will suffer for sometime in the future.
WHEREFORE, Plaintiff demands judgment against Defendant in the sum of $19,000.00 dollars and costs.

(Complaint reproduced exactly as it appears in the original.)

The appellee filed preliminary objections to the complaint in the nature of a demurrer on the grounds that the complaint failed to set forth a cause of action. The preliminary objections also alleged that the court lacked jurisdiction over the subject matter and the complaint failed to conform to the rules of court. The court below, in an order by DiBona, J., sustained the preliminary objections in the nature of a demurrer and dismissed the complaint for failure to state a claim on which relief could be granted.

It is basic that:

Where there is a challenge to the sustaining of a preliminary objection in the nature of a demurrer, an appellate court’s scope of review is limited. Recently, we reiterated this standard in Vattimo v. Lower Bucks Hosp., Inc., [502] Pa. [241], 465 A.2d 1231 (1983), as follows:
“All material facts set forth in the complaint as well as all inferences reasonable deducible therefrom are admitted as true for [the purpose of this review.] Clevenstein v. Rissuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favoi of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960).” (Emphasis added.)

Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461-462 (1983). Preliminary objections in the nature of a demurrer should be sustained and the complaint dismissed only in cases that are clear and free from doubt. Herron v. Seizak, 321 Pa.Super. 466, 468 A.2d 803 (1983). Any doubt should be resolved in favor of overruling the demurrer. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 450 A.2d 36 (1982).

In this case the appellee was assigned to represent Mr. Holly under Pa.R.Crim.P. 316 which provides in part:

(c) In all Cases
(i) The court, of its own motion, shall assign counsel to represent a defendant whenever the interests of justice require it.
(ii) A motion for change of counsel by a defendant to whom counsel has been assigned, shall not be granted except for substantial reasons.
(iii) Where counsel has been assigned, such assignment shall be effective until final judgment, including any proceedings upon direct appeal.

The fact that the appellee was court appointed counsel does not grant her immunity from liability for negligence. Even a public defender who is court appointed counsel is subject to liability. The supreme court speaking through Chief Justice Nix in Reese v. Danforth, 486 Pa. 479, 486, 406 A.2d 735, 737 (1979) stated:

While the availability of court-appointed counsel to represent indigents is indubitably the public business, we hold that once the appointment of a public defender in a given case is made, his public or state function ceases and thereafter he functions purely as a private attorney concerned with servicing his client. His professional relationship with his client takes on all the obligations and protections attendant upon a private attorney-client relationship except one: the public pays his fee. In this respect, he is like the physician rendering professional services which are paid for out of public funds and, like that physician, he ought to be subject to liability for tortious conduct. E.g., Jackson v. Kelly, 557 F.2d 735 (10th Cir.1977); US. ex rel. Fear v. Rundle, 506 F.2d 331 (3d Cir.1974).

It follows that a private attorney who is appointed by a court to represent an indigent criminal defendant likewise has no immunity from liability for negligent representation of his client. Counsel is negligent in a malpractice case if he does not exercise ordinary skill and knowledge. Hoyer v. Frazee, 323 Pa.Super. 421, 470 A.2d 990 (1984).

We must determine whether the complaint set forth a cause of action against the appellee sufficient to preclude the grant of the preliminary objection in the nature of a demurrer which admits all facts set forth and inferences reasonably deductible therefrom. There are three essential elements which must be established in order to bring an action for malpractice against an attorney: (1) the employment of the attorney or other basis for his obligation to act as attorney; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) negligence of the attorney which was the proximate cause of damage to the plaintiff. Schenkel v. Monheit, 266 Pa.Super. 396, 405 A.2d 493 (1979); Bangert v. Harris, 553 F.Supp. 235 (M.D.Pa.1982). In the matter before us the appellee acted as appellant’s attorney in post trial proceedings. The complaint further alleges that the appellee was negligent in her representation by failing to timely follow through on an appeal to the Court of Common Pleas. Finally, the appellant alleges that the negligence of his counsel in not pursuing his appeal resulted in his motions being dismissed and that this caused him the damages complained of. While the complaint was not drafted with skill, it was prepared by one not learned in the law, and in our opinion set forth a cause of action under the rule that we must resolve doubts in favor of overruling the demurrer.

The court below in sustaining the preliminary objections in the nature of a demurrer stated:

Plaintiffs complaint alleges ineffective assistance of counsel regarding an appeal from a criminal conviction in the Municipal Court. Plaintiffs remedy is an appeal made pursuant to the Post Conviction Hearing Act of 1982, P.L. 417, No. 122, 42 Pa. C.S.A. § 9541 et seq.

Counsel may or may not have been ineffective in failing to take an appeal to the Court of Common Pleas. We make no judgment with respect to this, but the fact that the appellant may have a remedy within the criminal justice system under the Post Conviction Hearing Act does not preclude him from pursuing civil remedies based on alleged negligent conduct of his attorney. A claim of ineffective assistance of counsel is tantamount to an allegation of incompetency on the part of counsel. Commonwealth v. Smoyer, 281 Pa.Super. 320, 422 A.2d 189 (1980).

Viewing the appellant’s complaint in the light of Mahoney v. Furches, supra, we find that sufficient facts were pleaded to take the action beyond the demurrer stage. We therefore remand the instant case to the court below for proceedings consistent with this opinion.

Order reversed and case remanded. We relinquish jurisdiction.

      . In Moore v. McComsey, 313 Pa.Super. 264, 459 A.2d 841 (1983) a civil action was filed against public defenders assigned to defend a criminal defendant. The action was based on alleged negligence which purportedly caused the defendant’s conviction and incarceration. We held that the action was based on an injury to the person and that the two year statute of limitations applied and malpractice of an attorney is not to be treated as a breach of contract to which a six year statute of limitations applies.


author: CERCONE, Judge:

text:
    504 A.2d 285
    The TRIDENT CORPORATION v. RELIANCE INSURANCE COMPANY, the Simkiss Agency, Inc. Appeal of RELIANCE INSURANCE COMPANY. The TRIDENT CORPORATION, Appellant v. RELIANCE INSURANCE COMPANY and the Simkiss Agency, Inc.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1985.
    Filed Jan. 28, 1986.

      Jon A. Baughman, Philadelphia, for Reliance, appellant in No. 712 and appellee in No. 713.
    Gregory M. Harvey and Richard W. Hopkins, Philadelphia, for Trident, appellant in No. 713 and appellee in No. 712.
    Before CAVANAUGH, McEWEN and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the Order of the Court of Common Pleas of Philadelphia County denying appellant Trident Corporation’s (Trident) Motion for a New Trial, denying appellee, Reliance Insurance Company (Reliance), its cross-appeal Motion for Judgment Notwithstanding the Verdict and to Conform Judgment, and granting appellee, Simkiss Agency, Inc. (Simkiss), its Motion for Judgment Notwithstanding the Verdict. The order appealed from entered judgment in favor of Trident Corporation against Reliance Insurance Company for $177,518.48.

This action was brought in contract and tort by the Trident Corporation a construction company, against Reliance, an insurance and surety company, Simkiss, an insurance and bonding broker, and John A. Simkiss, Jr., the President of Simkiss Agency.

Trident’s principal source of business was governmental contracts. To secure a government contract, a contractor is required to submit, with its bid, a bid bond issued by a qualified surety or insurance company. A bid bond guarantees that if the contractor is the lowest responsible bidder on a particular contract the contractor will accept the government’s offer to perform in accordance with the contract. The bond provides that the surety will pay set damages in the event the contractor does not accept the offer. When Trident sought to establish a relationship with a bonding company, it engaged the services of Simkiss, the insurance and bonding broker. Simkiss sought and secured bid and performance bonds for Trident from Reliance, the insurance company.

Trident alleged that Simkiss breached its duty to use its “best efforts” to provide Trident with its bonding requirements. This claim was based on Trident’s “broker of record” letter to Simkiss by which Trident gave Simkiss all of its insurance business. Trident also asserted that once Simkiss had obtained Reliance as the surety for Trident, Reliance wrongfully failed to issue a number of bid and/or performance bonds requested by Trident. Finally, Trident alleged that Simkiss and/or Reliance wrongfully rescinded a bid bond which had been issued to Trident on the Willow Grove project, allegedly causing Trident to lose the contract. The defendants denied all of these charges.

Although Trident was awarded $177,518.40, Trident raises two multi-faceted questions on appeal. The first is whether the lower court erred in determining that Trident presented insufficient evidence to allow all except one of its contractual claims to go to the jury.

The lower court disallowed Trident’s claim against Simkiss on the ground that Trident never properly asserted in its complaint or amended complaint that Simkiss breached its duty to use “best efforts”. We agree and, therefore, that issue is not properly before us. See Pa.R.A.P. 302.

The trial court also ruled that Trident failed to present sufficient evidence to support its claim that Reliance breached a written contract, as orally modified, by failing to issue requested bid bonds on many occasions. The only evidence submitted by Trident to prove the existence of an orally modified contract was a letter written by Reliance to Trident and a subsequent conversation. The letter, as relevant, reads:

Allow this letter to serve as your bonding line of credit of $400,000.00 for a single job size and $1,800,000.00 for a total work program.
This line is contingent upon the following conditions:
1. As a whole the work in progress as revealed by quarterly work in progress schedules remains profitable.
2. All bills, except those under dispute, are paid with [sic] 30 days.
This line may be revised when the Nicetown job is much further along towards completion.

The president of Trident, Mr. Pospolyta, was dissatisfied with the $400,000.00 limit and protested it to an officer of Reliance Mr. Witnaur. Pospolyta testified that Witnaur responded, “Don’t worry about it. If you’re going to bid a job that is more than $400,000.00, we will deal with it on an individual basis.” According to Pospolyta, at another meeting with Mr. Witnaur, Pospolyta wanted clarification as to whether Reliance would be responsible for jobs larger than $400,000.00. At trial Pospolyta testified, “Mr. Witnaur said that he will look into it and, you know, resolve it.”

Trident claims that the letter constituted a contract, as orally modified removing the $400,000.00 limitation, which required Reliance to grant Trident bid bonds on four specific projects: the Meadow Gardens Project involving a bid of $1,064,864.00; the Widener College project involving a bid of $1,033,300.00; the Wistar II job, a contract of approximately $1,200,000.00; and the Willow Grove project, discussed more fully herein. While it is accurate to state, as appellant repeatedly asserts, that whether a written contract has been modified is a question to be decided by the jury, there must be some evidence on which the jury may base its decision. We agree with the trial court’s conclusion that there was not sufficient evidence to raise a jury question on this point. In Pennsylvania, the rule is clear that an “oral contract which modifies or changes or cancels a prior written contract must be proved by evidence which is clear, precise and convincing.” Pellegrene v. Luther, 403 Pa. 212, 216, 169 A.2d 298, 300 (1961); accord Hamilton Bank v. Rulnick, 327 Pa.Superior Ct. 133, 475 A.2d 134 (1984). Assuming that the previously mentioned letter did create a contract between Trident and Reliance, Pospolyta’s testimony was inadequate as a matter of law to modify its terms.

Trident states its second issue as follows: “With regard to the issue that the trial court did submit to the jury, is plaintiff [Trident] entitled to judgment against both defendants [Simkiss and Reliance] where plaintiff presented evidence that each defendant breached its own contract with plaintiff thereby causing plaintiff damage and the jury’s findings supported liability?”

The trial court found that Trident had produced sufficient evidence to allow one contract claim to go to the jury. That claim involved a bid bond allegedly issued to Trident, and then rescinded, for the Willow Grove job, a project of the United States Navy. The jury answered the following special interrogatories on this claim.

(1) Did Simkiss agree to and issue the bid bond in the amount of at least $1,137,939.00 to Trident in the Willow Grove job after Trident had applied for such a bond? Answer: Yes
(2) If your answer to the foregoing interrogatory is yes, how much money, if any, did Trident lose in the Willow Grove job alone as a result of not being able to file that bid?
Answer: $177,518.48
(3) If your answer to the first interrogatory is yes, how much money, if any, did Trident lose, over and above the profit on the Willow Grove job as the result of not being able to file that bid?
Answer: $0
(4) Did Reliance itsélf, as opposed to Simkiss, approve the rescission of this bid bond on October 17, 1974?
Answer: No

The lower court entered judgment in favor of Trident against both defendants. It later granted Simkiss’ motion for judgment n.o.v. and imposed judgment against Reliance only on the theory that Simkiss was acting as the agent for a disclosed principal (Reliance) in both the issuance and rescission of the bond. Following the Restatement (Second) of Agency (1958), § 320, the lower court held that Simkiss was not a party to the contract and, therefore, was not liable to Trident for any loss suffered by the breach of the contract.

The resolution of the issue raised by Trident depends on whether the lower court was correct in its conclusion that Simkiss was, as a matter of law, acting as an agent, with apparent or actual authority, for Reliance in both the issuance and rescission of the bond. The result we reach on this issue is also pivotal to an issue raised by Reliance in its cross-appeal. Reliance claims that Simkiss lacked the actual or apparent authority to issue or rescind the Willow Grove bid bond on behalf of Reliance and, therefore, Reliance had no liability under the contract.

We find no merit to Reliance’s claims that Simkiss had no authority to issue a bid bond for the Willow Grove project. The lower court found that, as a matter of law, Simkiss had apparent authority to issue and rescind the bond and, thus, as to Trident, Reliance must be held responsible. The lower court cited section 8, Restatement, Second, of Agency, in support of its conclusion. That section reads:

Apparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other’s manifestations to such third persons.

See Sauers v. Pancoast Personnel, Inc., 294 Pa.Superior Ct. 306, 309, 439 A.2d 1214, 1215 (1982)(“Apparent authority exists when the principal has led a third party into believing that the licensee was the principal’s agent.”) Upon review of the record, pleadings, and evidence of the course of conduct in this case, we affirm the lower court’s conclusion that Simkiss had apparent authority to issue and rescind the bid bond.

Reliance and Simkiss had an agency agreement which gave Simkiss the authority to enter and rescind bond agreements, subject to certain limitations. Simkiss acted as Reliance’s agent for all bonds provided to Trident. In fact, Reliance admitted, in its trial brief, that Simkiss acted as agent for Reliance in actually executing the bonds. In its answer to the complaint, Reliance averred that Simkiss was not a general agent, but an agent only for those purposes set forth in the agency agreement — which included both the execution and rescission of bonds under certain conditions.

An admitted agent is presumed to be acting within the scope of his authority where the act is legal and the third party has no notice of the agent’s limitation. Continental-Wirt Electron Corp. v. Sprague Electric Co., 329 F.Supp. 959, 963 (E.D.Pa.1971). A third party is entitled to rely upon the apparent authority of the agent when this is a reasonable interpretation of the manifestations of the principal. Turnway Corp. v. Soffer, 461 Pa. 447, 458, 336 A.2d 871 (1975); Industrial Molded Plastic Products, Inc. v. J. Gross & Son, Inc., 263 Pa.Superior Ct. 515, 521, 398 A.2d 695 (1979).

Here, the course of dealing among the three parties was such that it was reasonable for Trident to believe that a bid bond issued by Simkiss, with a power of attorney attached, was evidence of actual approval by Reliance of that bond. Prior to the actual authorization of the bid bond for the Willow Grove contract, in excess of $1.1 million, Reliance had authorized the execution of a bid bond for $800,000.00, apparently after a check of Trident’s current financial situation, as was standard procedure for requests over $400,000.00. We can only conclude from this that Trident had submitted all the required paperwork and that it reasonably believed that Simkiss had the authority to issue the higher bond.

Appellant Reliance next claims that, even if Simkiss had the authority to issue the bond, it lacked the authority to rescind the Willow Grove bid bond and that Trident unreasonably relied on that rescission. Again, we find that Simkiss did have actual authority to rescind bid bonds, upon special authorization, and that it likewise had apparent authority to so act. While the record may contain no evidence of special authorization to cancel the bond, it was not unreasonable for Trident to accept the Simkiss rescission. All parties agreed that the general course of conduct was for all communications between Trident and Reliance to flow through Simkiss. It is axiomatic that the party who asserts that an agent has power to act on behalf of his principal bears the burden of proving it. Hartley v. United Mine Workers of America, 381 Pa. 430, 113 A.2d 239 (1955). Trident has clearly met this burden of proof.

We affirm the lower court’s finding that Simkiss was an agent, acting for a disclosed principal, Reliance, when it issued and rescinded the Willow Grove bid bond. Thus, we find no merit to Trident’s claim that the lower court erred in imposing judgment against Reliance only. Further, we find no merit to Reliance’s claim that the lower court erred in determining that, as a matter of law, Simkiss acted as an agent with apparent authority to issue and rescind the Willow Grove bid bond.

Reliance next claims that it is entitled to judgment n.o.v. because the bond in question had never been delivered to the obligee (the United States Navy) and, as a matter of law, such bonds are ineffective and fully revocable until delivery and acceptance by the obligee. Reliance relies on Silberblatt v. Seaboard Surety Co., 417 F.2d 1043 (8th Cir.1969), in support of this proposition. Silberblatt cites 72 C.J.S. Principal and Surety §§ 57 and 60 (1955). Section 57 reads:

In order that a surety may be bound, the suretyship bond or obligation must be duly accepted by the creditor or obligee within a reasonable time.

Section 60 reads:

A surety has the right to revoke the suretyship before the obligation is delivered and accepted.

The reasoning in Silberblatt is not apposite to the case at hand because the plaintiff therein was the obligee. In the case sub judice, the plaintiff, Trident, is the principal and a different analysis of the facts is necessary.

A suretyship is a three-party relationship in which the surety undertakes to perform to the obligee only if the principal fails to do so. 35 P.L.E. Suretyship § 3 (1961). The contract of suretyship is between the principal debtor and the surety, First National Bank & Trust Co. of Ford City v. Stolar, 130 Pa.Superior Ct. 480, 197 A. 499 (1938), and it is generally essential to the formation of a suretyship contract that the principal manifest an acceptance of the surety’s offer. See 35 P.L.E. Suretyship § 21. See also 72 C.J.S. Surety and Principal § 29:

Generally, as between the principal and surety, it is essential to the existence of a suretyship relation that the surety become such at the request, or with the assent, of the principal, or that the principal have notice of, and accept, the surety’s offer to assume the relationship, (emphasis added)

Acceptance of an offer to act as surety need not be made in a formal manner, but may be implied from the fact that the offer was acted upon. See State Camp of Pennsylvania of Patriotic Order, Sons of America v. Kelley, 267 Pa. 49, 110 A. 339 (1920); 35 P.L.E. Suretyship § 28.

In this case, there is no doubt that Trident both requested and accepted the bid bond offered by Reliance through its agent Simkiss. Upon being notified that the bid bond was available, Trident immediately picked it up and prepared its final bid for presentation to the United States Navy.

The sections of Corpus Juris Secundum cited in Silberblatt come into play if the obligee seeks to enforce the suretyship. Although the suretyship contract is formed at the time the surety’s offer is accepted by the principal, it may not be enforced by the obligee against the surety unless accepted by the intended obligee within a reasonable time. Such a provision is for the protection of the surety inasmuch as such notice enables the surety to know the nature and extent of its liability. See Acme Manufacturing Co. v. Reed, 197 Pa. 359, 47 A. 205 (1900). In fact, the bid bond in question specifically provided that the surety-ship obligation (between Trident and Reliance) would not be impaired by any extension(s) of time for acceptance of the bid granted to the obligee by the principal up to sixty (60) days beyond the time originally allowed for acceptance of the bid. We find that this scenario of events sufficiently establishes that a contract was formed between Trident and Reliance which Reliance then rescinded to Trident’s detriment. Accordingly, Trident properly brought a cause of action in contract and the lower court did not err in denying Reliance’s request for judgment n.o.v.

Finally, Reliance claims that the contract must fail for lack of consideration. This argument is totally frivolous. The uncontradicted testimony was that insurance companies (sureties) do not assess against their construction contractor clients a specific charge for each bid bond which such a client is authorized to file. The premiums paid to the insurance company are derived from a charge on each performance bond issued following the award of the contract when the principal is the lowest bidder. Reliance does not deny that this was the general course of conduct followed by the parties to this case or in the industry in general. We find no merit to Reliance’s argument.

Accordingly, the judgment of the court below is hereby affirmed.

      . The tort claims originally brought by appellant were not raised either in Trident’s motion for a new trial below or in its appellate brief, and are not before this court on appeal.

      . All claims against Mr. Simkiss were dismissed below and he is not a party to this appeal.

      . We note that in 1975 alone, Trident requested at least thirty-five (35) bid bonds, and Reliance granted at least ten (10) of those requests.

      . We are not here concluding that Simkiss acted within the scope of its actual authority, as granted by Reliance, in its execution and rescission of the Willow Grove bond. We are merely showing that Simkiss had actual authority to act for Reliance and that it would not be unreasonable for Trident to assume that, based on the exercise of its actual authority, Simkiss had the apparent authority to execute and later rescind the Willow Grove bid.


author: MONTEMURO, Judge:

text:
    504 A.2d 291
    Ethelene G. McLARIN, Appellant, v. Benjamin L. McLARIN, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1985.
    Filed Jan. 31, 1986.

      JoAnne C. Betlem, York, for appellant.

      Before ROWLEY, OLSZEWSKI and MONTEMURO, JJ.
   MONTEMURO, Judge:

This case is before us on appeal from an order entered by the York County Court of Common Pleas, Domestic Relations Division, dismissing appellant’s complaint for child support which was filed on June 25, 1984, against her ex-husband, appellee herein.

Appellee filed a complaint in divorce in Maryland which was granted in 1972. The Maryland divorce decree ordered that appellee be charged generally with the support and maintenance of the parties’ five children, who were at that time, and have remained, in the custody of appellant. At the time of the filing of the complaint for child support in Pennsylvania, appellant was, as she still is, a resident of California. All prior actions brought by appellant to enforce the child support order had been heard in Maryland and appellee had never been requested to appear in the court of any state other than Maryland in relation to his duty to pay child support. N.T. December 17, 1984, at 5.

Appellee raised an objection that the York County Domestic Relations Court lacks sufficient jurisdiction to enter an order on appellant’s complaint initiating an action for child support. Appellee contended that because he is a Maryland resident and domiciliary, the Pennsylvania courts do not have personal jurisdiction over him pursuant to 42 Pa.C.S. § 6704(F) in conjunction with 42 Pa.C.S. § 5301(a)(l)(ii).

Both parties agreed that the question of the court’s jurisdiction rests on the determination of appellee’s domicile at the time of the filing of the complaint against him. The Domestic Relations Court held a hearing on this issue on December 17, 1984. At the conclusion of the hearing, appellee was ordered to submit copies of his 1983 State and Federal tax returns.

On March 15, 1985, the hearing court entered an order dismissing appellant’s complaint due to lack of personal jurisdiction over appellee.

Appellant raises three issues on appeal: (1) does the appellee’s filing of a Pennsylvania State Income Tax return as a Pennsylvania resident establish residency for the purposes of jurisdiction in a support action; (2) does the evidence considered as a whole support the appellee’s allegations of a Maryland domicile, and (3) are defendant’s (appellee’s) allegations as to his domicile credible.

We will address appellant’s second issue first. At the hearing, appellee and his new wife were questioned extensively by the attorneys for both parties. Appellee testified that he was divorced from appellant in Maryland in 1971, the same year he retired from the Navy, and has resided in Maryland ever since. Appellee’s employment involves on-site installation of pumps at various locations across the U.S. and abroad. This employment requires appellee to spend the majority of his time traveling. He testified that in the year prior to this support action, he spent five months overseas and had also spent considerable time, that year, traveling within this country. Appellee owns 2.5 acres of property adjacent to the home of his mother in Glen Burnie, Maryland. He testified that he resided with his mother for four to five years and for the last two to three years has lived with either his girlfriend, a Maryland resident, or his mother. The record establishes that appellee’s automobile is registered in Maryland, he has a Maryland driver’s license and is a registered voter there. He also has a bank account in Maryland, married his second wife there and has paid Maryland taxes.

The record also reflects that in 1978 appellee purchased a tree farm, for investment purposes, in Pennsylvania. His farm has a dwelling on the property. Appellee testified that he visits the property and stays overnight anywhere from twenty-five (25) to forty (40) times a year. Appellee’s children have visited the farm only three times since its acquisition. The farm residence has a working telephone, but the home is not fully furnished, no perishable food is stored there and the refrigerator is shut off. After every visit appellee drains the pipes and shuts off the water.

The record also shows that appellee maintains a bank account, along with a post office box near the farm in Hanover, Pennsylvania. Appellee has also filed Pennsylvania State tax returns for three (3) or four (4) years. Appellee’s 1983 tax return lists his full-year residence as Pennsylvania. In a letter to the trial court appellee’s attorney stated that appellee’s Pennsylvania address was also used on his 1983 Federal Income Tax return.

It is well established in this Commonwealth that domicile once shown to exist is presumed to continue until another domicile is affirmatively proven. The burden of proving this change of domicile rests with the party asserting the change. This burden entails proving by clear and convincing evidence, residence in a new locality with intent to make that residence a permanent home coupled with the manifested intent of abandoning the former domicile. In re McKinley’s Estate, 461 Pa. 731, 337 A.2d 851 (1975); In re Obici’s Estate, 373 Pa. 567, 97 A.2d 49 (1953); Zinn v. Zinn, 327 Pa.Super. 128, 475 A.2d 132 (1984).

Appellant argues that Pennsylvania is appellee’s domicile and has been since 1978 when appellee purchased the farm. Appellant relies on the fact that, appellee uses his Post Office Box address in Hanover, PA, maintains a bank account there and visits his seventy thousand dollar ($70,000) farmhouse on the average 30 times a year, as support for this contention. We find this contention to be contrary to the evidence before us. We find the record establishes that appellee has been domiciled in Maryland since 1971. Appellant has not proved that the Maryland domicile was abandoned in 1978 for one in Pennsylvania. It is true, as appellant asserts, that self-serving testimony unsupported by acts in accordance with these declarations are not conclusive and conduct is a better determinative of domicile. Commonwealth ex rel. Fortney v. Bobrofskie, 329 Pa. 44, 196 A. 489 (1938). But here appellee’s conduct supports his testimony. Appellee does not use the farm house as his address in Pennsylvania, he uses his post office box. The home is only partially furnished, contains no perishable food and is closed up every time appellee leaves. Appellee explained that on the advice of his accountant, in order to save money, he filed Pennsylvania tax returns. He owns property in Maryland, his family is in Maryland and his driver’s license and vehicle registration are from Maryland. He has never given the Navy his Pennsylvania farm or post office box address and he has always maintained bank accounts in Maryland. We believe the evidence shows appellee has acquired new contacts and relationships in Pennsylvania but has never severed his ties with Maryland. We find that appellee has retained continual domicile in Maryland; hence the burden rests with appellant to prove by clear and convincing evidence that appellant intended to change his domicile to Pennsylvania.

In Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974), our supreme court was faced with a factually similar, situation where the husband had moved from Philadelphia to Florida, his adopted domicile, but his business remained in Philadelphia. He had a bank account in Florida and had registered to vote and registered his automobile there. He still had many contacts with Pennsylvania. He maintained a bank account, several charge accounts and club memberships here. He also leased an apartment in Philadelphia, which he occupied when not in Florida. He also filed his personal federal income tax returns from Pennsylvania. The Stambaugh court held that “[i]t is well settled, though, that a person may maintain business interests outside the state of his domicile and in fact live outside of his domiciliary state as long as he possesses the requisite intention to return to that state.” Id., 458 Pa. at 152-53, 329 A.2d 483, 486. The supreme court in Stambaugh affirmed our court’s determination that Florida was the domicile of the husband.

Similarly we hold that appellee’s business contacts with Pennsylvania are not clear and convincing evidence that appellee intended to change his domicile to Pennsylvania nor have these business contacts established appellee’s intention to abandon Maryland as his domicile.

Appellant also argues that appellee, by filing a Pennsylvania State Income Tax return as a Pennsylvania resident subjects himself to the jurisdiction of our courts. This contention has no support in law. A line of our supreme court cases has held that declaring a particular state as your residence for tax purposes and paying taxes in that state does not make that state your legal domicile absent the other requirements of legal domicile. Stambaugh, supra; Stabile Registration Case, 348 Pa. 587, 36 A.2d 451 (1944); Commonwealth ex rel. Fortney v. Bobrofski, supra; Dorrance’s Estate, 309 Pa. 151, 163 A. 303 (1932). Hence, we find appellant’s argument meritless.

Lastly appellant argues that appellee’s assertions of Maryland domicile are not credible. In essence appellant argues that appellee is a dishonest person whose testimony before the trial court was riddled with lies. Appellant states in her brief, at page 13, that appellee is defrauding the federal government by claiming undeserved deductions on his tax returns, and also violating state laws in Maryland and Pennsylvania by failing to pay county income taxes. Appellant goes on' to cite other examples of appellee’s behavior and statements which she contends lend credence to her assertion of appellee’s lack of credibility. Appellant’s brief at 12-13.

Since the issue of domicile is a mixed question of law and fact, it is reviewable by our appellate courts. Stambaugh, supra; Smith v. Smith, 364 Pa. 1, 70 A.2d 630 (1950). Here appellant is challenging the credibility of the appellee as a witness. Although the Superior Court has been mandated to review issues of domicile, in the framework of this appellant’s argument, we can defer to the determinations of the hearing court. The trier of fact is the sole judge of credibility and upon review we will not usurp this function of the lower court judges. In re Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203 (1981); Wilson v. Benjamin, 332 Pa.Super. 211, 481 A.2d 328 (1984). The hearing court in this case found appellee’s testimony to be credible and convincing, holding that appellee was domiciled in Maryland at the time of the filing of the complaint against him. We agree and accordingly affirm the order of the trial court.

Order affirmed.

      . Before the divorce, the parties last resided in Baltimore, Maryland.

      . There is nothing in the record indicating that appellant, at any time, resided in Pennsylvania.

      . We also note that Pennsylvania may lack jurisdiction in this case pursuant to the pertinent provisions of title 42 of Pennsylvania Consolidated Statutes Chapter 67 and the Reciprocal Enforcement of Support Orders Act. See also Commonwealth ex rel. Wheeler v. Wheeler, 274 Pa.Super. 478, 483, 418 A.2d 506, 509 (1980) ("Once the court obtains jurisdiction in a support matter it continues notwithstanding a change of residence by defendant” ); and Commonwealth ex rel. Holzbaur v. Holzbaur, 185 Pa.Super. 343, 346-47, 138 A.2d 268, 270 (1958). (Where a support order was already entered in New Jersey our court refused to enter another support order de novo, quoting the court below, our court stated that to do so ‘‘would place an unfair, excessive and undue burden on this defendant”).

      . 42 Pa.C.S. 5301(a)(1)(ii).

      . We have reviewed these issues without the benefit of a brief on appellee’s behalf.


text:
    504 A.2d 294
    COMMONWEALTH of Pennsylvania v. Jerry McKEITHAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Jan. 31, 1986.

      Douglas W. Herman, Assistant Public Defender, Chambersburg, for appellant.
    John R Walker, District Attorney, Chambersburg, for Commonwealth appellee.
    Before CAVANAUGH, CERCONE and LIPEZ, JJ.
   CERCONE, Judge:

Jerry McKeithan was found guilty of aggravated assault by a judge sitting without a jury. He was sentenced on June 27, 1984, to undergo imprisonment in the Franklin County Prison for a period of not less than 20 months nor more than 59 months, to pay a fine of $300.00 and the costs of prosecution. Appellant was sentenced in accordance with the Deadly Weapon Enhancement of the Sentencing Guidelines. In his timely filed Motion to Modify Sentence and now on appeal, appellant advances several challenges to the constitutionality of the weapons enhancement provision and to the manner in which it was applied to him.

The charges arose from an altercation between appellant and one Willie James Thomas during the early morning hours of December 10, 1983. A fight had initially ensued between two women at a social club. When the fight moved outside, Thomas, the eventual victim, attempted to break it up. Appellant interfered saying “let the women fight”. The two men exchanged angry words and when Thomas turned away, appellant stepped up and cut him across the neck. Thomas did not see a weapon, but testified at trial that he did see appellant drop something from his clenched right fist and heard it fall on the ground. Then the fight between the two men began. Thomas wrestled appellant to the ground and punched him several times before the fight was stopped. Thomas was heard to say, “Man, you cut me!” Appellant testified that he did not have a knife and that he did not cut Thomas. Moreover, his testimony was that Thomas struck him first.

Thomas was taken to a hospital and was treated in the emergency room. The two cuts on his neck required between 32 and 34 stitches, and the court’s opinion describes the victim’s scars as “very long and ugly”. Debra Parr, a witness to the relevant events testified that later on the same day she heard appellant remark to some people, “Hey, man, did you hear what I did to Cricket.” (It was established at trial that Thomas, the victim, was also know as “Cricket”.) No knife was ever located.

Appellant’s arguments on appeal are:

(1) The trial court erred in imposing the deadly weapon enhancement of 12 to 24 months in that it is a violation of due process under the Fifth and Fourteenth Amendments to the United States Constitution and to similar provisions of the Pennsylvania Constitution because it does not provide a standard of proof by which the sentencing court may determine that the defendant possessed a deadly weapon during the commission of this offense;
The trial court erred in imposing the enhancement section in that the Commonwealth did not prove beyond a reasonable doubt at trial or at sentencing that appellant so possessed a deadly weapon; (2)
The trial court erred in sentencing appellant pursuant to the enhancement section because it is violative of due process in that the definitions of the elements of possession and deadly weapon are so vague that they fail to put a person of ordinary intelligence on notice that his contemplated conduct is unlawful. (3)

I

Appellant urges us to declare the challenged provision of the Sentencing Guidelines unconstitutional as a violation of due process for failing to specify a particular standard of proof for the determination of whether the provision is applicable to a case. The comparison between the provision with which we are concerned and section 9712 of the Mandatory Minimum Sentencing Act is unavoidable, since by both vehicles, in the proper case, convicted felons will incur more stringent penalties if they possessed certain enumerated weapons in the commission of crimes. See Commonwealth v. Taylor, en banc, 346 Pa.Superior Ct. 599, 500 A.2d 110, 119-120 (1985) (Comparison of both sections: the mandatory sentence section provides for a minimum standard of proof, preponderance of the evidence, whereas the guidelines provide none.)

Both sections come into play at sentencing proceedings, after the determination of guilt has been made by the fact-finder or a guilty plea has been accepted by the court. Despite the differences between the mandatory sentence section of the sentencing code and the enhancement section of the guidelines with which we are concerned in this case, the two provisions have more in common in the way they affect a convicted defendant than the differences might suggest. For that reason, we consult the recent Pennsylvania Supreme Court case, Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), cert. granted, McMillan v. Pennsylvania, — U.S. —, 106 S.Ct. 58, 88 L.Ed.2d 47 (1985) for guidance.

In that case, the appellants challenged the preponderance of the evidence standard, which the legislature specified as applying in any § 9712 proceeding, as violative of due process. The Supreme Court looked to the language of § 9712 which states that visible possession of a firearm is not to be considered an element of a crime; as such it need not be proven beyond a reasonable doubt. The court explained further that a defendant’s liberty risk, when weighed against the Commonwealth’s interest in imposing a mandatory sentence, compels the conclusion that the preponderance standard satisfies minimum requirements of due process.

The court in Wright acknowledged with reference to United States Supreme Court decisions that the Due Process Clause is indeed implicated in sentencing proceedings, but that the convicted defendant need not be accorded “the entire panoply of criminal trial procedural rights.” Gardner v. Florida, 430 U.S. 349, 358 n. 9, 97 S.Ct. 1197, 1205 n. 9, 51 L.Ed.2d 393 (1977) in Wright, supra, 508 Pa. at 36, 494 A.2d at 360. It then set itself the task of deciding “what process is due”, Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1922), to such a defendant.

The court weighed the liberty interest of the defendant with the Commonwealth’s interest in imposing a mandatory sentence. It emphasized that a defendant facing a § 9712 proceeding is in no different position from other convicted defendants facing sentence. As the legislature has by statute prescribed statutory limits within which courts may sentence in general, it has set a mandatory minimum of five years imprisonment by § 9712. The maximum sentence for the particular felony remains unaffected. The court then stated the countervailing interest.

The Commonwealth seeks to protect the public from armed criminals and to deter violent crime and the use of firearms generally, as well as to vindicate its interest in punishing those who commit serious crimes with guns. Wright, supra, 508 Pa. at 41, 494 A.2d at 362.

The court concluded that the risk of error in a § 9712 proceeding was slight, that visible possession of a firearm is a simple, straightforward issue susceptible of objective proof, and amenable to meaningful appellate review. Thus, the court concluded that because a defendant has no “right” to avoid punishment and no “right” to a particular punishment within the pertinent statutory range, that the standard of proof represented by the preponderance standard of § 9712 satisfies the minimum requirements of the Due Process Clause in the context of a sentencing proceeding.

Now, turning our attention to the concern in this appeal, that the deadly weapon enhancement section of the Sentencing Guidelines is violative of the Due Process Clause for failure to set forth a standard of proof, we consider the effect of the enhancement section on a convicted defendant. A sentence of at least 12 to 24 months confinement shall be added to the guideline sentence which would otherwise have been imposed. However, just as with a § 9712 proceeding, the maximum possible penalty is not affected. This is addressed in § 303.1(i), 204 Pa.Code, of the guidelines,

(i) When the guideline sentence exceeds that permitted by 18 Pa.C.S. §§ 1103 and 1104 (relating to sentence of imprisonment for felony and misdemeanors) and 42 Pa. C.S. §§ 9755(b) and 9756(b) (relating to sentence of partial and total confinement) or other applicable statute setting maximum term of confinement, then the statutory limit is the guideline sentence.

Thus, any confinement time that exceeds the statutory maximum because of the application of the guidelines is cut off to conform to the statutory maximum. A defendant subject to a deadly weapon enhancement is in a position not significantly distinguishable from other convicted defendants during the sentencing phase.

We see no reason to distinguish the determination of whether a mandatory sentence under § 9712 should apply to a convicted defendant from the determination of whether the deadly weapon enhancement should so apply. (See Commonwealth v. Taylor, supra, Dissent by Wickersham, J.) There are advantages in the interest of consistency. It would be anomalous indeed for us to set forth a higher standard of proof for the deadly weapon enhancement than that approved of in § 9712 when no palpable distinction exists between the two considerations.

Application of the preponderance standard in a deadly weapon enhancement situation is also internally consistent with subsection (b) of the deadly weapon enhancement section, which precludes from enhancement any conviction for which possession of a deadly weapon is an element of the statutory definition; for example, 18 Pa.C.S.A. §§ 2702(a)(4) (aggravated assault), 6101-6120 (Uniform Firearms Act), 907 (possessing instruments of crime), etc. As in the case of § 9712 as discussed in Wright, supra, the possession of a deadly weapon is not an element of a crime, but a sentencing factor. Unlike the elements of a crime which must be proven beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the legislature, by setting up possession of a deadly weapon as a sentencing factor, has left it for us, the judiciary, to determine the degree of proof which is necessary to invoke the enhancement. This determination has been traditionally left to the judiciary to resolve. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Therefore, in light of the foregoing discussion, and with a concern for harmony and simplicity regarding the possible sentencing hearing considerations, we hold that the standard of proof which must govern the applicability of the deadly weapon enhancement is the preponderance of the evidence.

II

However, the task remaining is to consider whether the facts of this case prove that appellant possessed a deadly weapon in his assault on Willie James Thomas. Appellant emphasizes that no one ever saw a weapon, nor was any ever found. He concludes that the sufficient proof was not presented that he possessed one.

The weapon enhancement section cites to the definition of “deadly weapon” in 18 Pa.C.S.A. § 2301 as pertaining to it. That is, a “deadly weapon” for purposes of the deadly weapon enhancement is

“Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.” 18 Pa.C.S.A. § 2301.

We do not hesitate under the facts of this case to conclude that the evidence established beyond a reasonable doubt, albeit circumstantially, that appellant used a “device or instrumentality which, in the manner in which” appellant used it, was calculated or likely to produce serious bodily injury.

As the trial court reasoned,
A person may be convicted on the basis of circumstantial evidence alone if reasonable inferences arising therefrom prove the fact in question beyond a reasonable doubt. Commonwealth v. Bartlett, 446 Pa. 392, 288 A.2d 796 (1972); Commonwealth v. Stanley, 456 [453] Pa. 467, 309 A.2d 408 (1973). We believe the evidence presented at trial is proof beyond a reasonable doubt that the defendant had to slash the victim with a deadly weapon.

Moreover, our conclusion that the possession of a deadly weapon for purposes of weapon enhancement of sentencing may be proved by circumstantial evidence is bolstered by this court’s recent decision in Commonwealth v. Healey, 343 Pa.Superior Ct. 323, 494 A.2d 869 (1985). There, in the context of the Mandatory Minimum Sentence for visible possession of a firearm, this court, reversing the trial court, held that where a defendant shot his victim through a closed door, he nevertheless “visibly possessed” a firearm.

We define ‘visibly possessed’ as possession which manifests itself in the process of the crime. This definition would include situations where a firearm is visible to the eye of the victim or a third party. Additionally, it would encompass situations where, as in the case sub judice, a firearm is hidden but has a visible effect on the victim. In the latter context, our definition would cover an individual who points a firearm inside his pocket and then threatens his victim by informing the victim that a firearm is aimed at the victim.
In the case sub judice, it does not matter that the victim could not see that appellee was visibly possessed of the firearm. The appellee possessed a firearm and used it to produce a visible effect on the victim. Id., 343 Pa.Superior Ct. at 326, 494 A.2d at 870.

So also in this case. The fact that the device or instrumentality employed by appellant in committing the aggravated assault was fortuitously not seen or found will not allow appellant to escape the application of the weapon enhancement to his sentence. We conclude that its use was proven beyond a reasonable doubt. See Commonwealth v. Charles, 339 Pa.Superior Ct. 284, 488 A.2d 1126 (1985) (Appellant’s due process challenge void where sentencing factor proven at trial beyond a reasonable doubt.)

III

In support of his last contention, that the enhancement provision is void for vagueness, appellant refers us to the recent en banc decision Commonwealth v. Taylor, supra. In the third section of that opinion, joined only by two judges and thus not commanding a majority of the court, the weapon enhancement provision was declared unconstitutionally vague. We are not inclined to adhere to this analysis and because the holding was not joined by a majority of the en banc panel, we are not so bound.

Our Supreme Court set forth the parameters of our review in Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54 (1980), a case in which the state disorderly conduct statute was found not to be unconstitutionally vague.

In reviewing appellant’s facial attack on the vagueness of the statute in question, it is important to remember what we stated in Commonwealth v. Heinbaugh, 467 Pa. 1, 4-5, 354 A.2d 244, 245 (1976), that:
‘Absent the assertion of an infringement of First Amendment freedoms, the specificity of a statute must be measured against the conduct in which the party challenging the statute engaged.’ (Footnote omitted.) Id., 489 Pa. at 259, 414 A.2d at 56.

The instant case is akin to Heinbaugh, the case cited in the above quotation, in that in neither instance was an infringement of First Amendment activity asserted. In such a vagueness attack, to review a statute facially would require this court “to adjudicate the rights of parties not presently before the court, at the insistence of a party who does not have standing to assert such rights.” Heinbaugh, supra, 467 Pa. at 4, 354 A.2d at 245. Thus, we must judge the specificity of the statute in question in light of appellant’s particular conduct in this case.

In order to comply with the due process clauses of both the Pennsylvania Constitution and the Constitution of the United States, a criminal statute must be sufficiently certain and definite to inform the accused of the acts which the statute is intended to prohibit and which will render him liable to its penalties. ‘A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess [as to] its meaning and differ as to its application [lacks] the first essential of due process of law.’ [Citations omitted.] Chester v. Elam, 408 Pa. 350, 356, 184 A.2d 257, 260 (1962).

Again, the pertinent section of the statute which appellant challenges as unconstitutionally vague reads,

When the court determines that the defendant or an accomplice possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence which would otherwise have been imposed.

The crux of the provision involves possession of a deadly weapon during the commission of the current conviction offense. Initially, we note the presumption of constitutionality inherent in any ascertainment of legislative intent. 1 Pa.C.S.A. § 1922(3).

Interpreting this statute in a common sense manner as we must, 1 Pa.C.S.A. § 1903; Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982), and with a view toward regarding the letter of the law from the clear and unambiguous language, 1 Pa.C.S.A. § 1921(b), we do not find anything so uncertain or indefinite in the weapons enhancement provision which would have prevented appellant from realizing that his use of device in his assault on the victim which was capable of causing two “very long and ugly” scars was that kind of behavior punishable by the enhanced sentence.

The enhancement provision simply provides that if a court determines that one commits a crime while possessing a deadly weapon, as particularly defined, he or she is subject to an enhanced sentence of 12 to 24 months confinement. The definition of “deadly weapon” dispels any uncertainty as to what degree of possession is necessary. Again, it reads,

Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury. 18 Pa.C.S.A. § 2301.

Intrinsic to the definition is the phrase, “... in the manner in which it is used or intended to be used ...”. Thus, a requisite intent to use the weapon in the commission of the convicted crime must be apparent from the evidence. The weapon, to be deadly, must be used or intended to be used while the defendant committed the particular crime. Our interpretation is consistent with the interest of society in punishing those who commit crimes with deadly weapons, crimes which do not have as an essential element the possession of a deadly weapon but, during which, the presence of such a deadly weapon intensified the harm perpetrated against the victim. This is what occurred in the instant case and appellant was properly sentenced in accordance with the weapons enhancement provision.

Therefore, judgment of sentence is affirmed.

      . 18 Pa.C.S.A. § 2702(a)(1) — A person is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;

      . 204 Pa.Code. § 303.4 Deadly weapon enhancement.
      (a) When the court determines that the defendant or an accomplice possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence which would otherwise have been imposed.
      (b) There shall be no such enhancement for convictions: under 18 Pa.C.S. § 2702(a)(4) (relating to aggravated assault); of violations of the Pennsylvania Uniform Firearms Act, 18 Pa.C.S. §§ 6101-6120; under 18 Pa.C.S. § 907 (relating to possessing instruments of' crime); under 18 Pa.C.S. § 908 (relating to prohibited

        offensive weapons); or of any other offense for which possession of a deadly weapon is an element of the statutory definition.
      (This section is incorporated in 42 Pa.C.S.A. § 9721(b).)

      . One possible difference in the two provisions is the requirement in § 9712 that the Commonwealth provide a convicted defendant with notice of its intent to invoke the mandatory minimum against him. But the seeming lack of notice, since such is not provided for in the enhancement section, was the concern of this court in Commonwealth v. Taylor, supra. There, our court affirmed a sentencing court’s refusal to sentence in accordance with the enhancement section. (5 judges joined parts I and II of the opinion, the pertinent parts for our ' discussion at this point) The defendant in that case had been initially charged in the criminal complaint with aggravated assault involving a deadly weapon, § 2702(a)(4) of the Crimes Code. Then, when the Information was filed, the defendant was charged with aggravated assault, § 2702(a)(1) which does not require the use of a deadly weapon. The defendant pleaded guilty to aggravated assault, theft by unlawful taking, and unlawful restraint. At sentencing, the Commonwealth introduced testimony from the victim that a knife was used in the assault. And it was on this basis that the Commonwealth sought the deadly weapon enhancement. The court concluded:
      "On the basis of the charge in the information, the Commonwealth, by limiting the proof to causing or attempting to cause serious bodily injury to another, knowingly or recklessly, under the circumstances manifesting extreme indifference to the value of human life, is bound by its charge and cannot go beyond the allegation in the information and proceed to offer proof of the use of a deadly weapon at sentencing.” Taylor, supra, 346 Pa.Superior Ct. 608, 500 A.2d at 115.
      In effect, this court limited the invocation of the deadly weapon enhancement to those cases which, in the usual course of the filing of the information and the presentation of the requisite conforming proof at trial or at a guilty plea proceeding, provide notice to a defendant that he will be sentenced specially for his use of a deadly weapon during the crime for which he was convicted. Absent some mention of such a weapon prior to sentencing, the enhancement section will not apply.


author:
WICKERSHAM, Judge: BROSKY, Judge,
      WIEAND, Judge,

text:
    504 A.2d 301
    COMMONWEALTH of Pennsylvania, Appellant v. Dennis STATEN.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1983.
    Filed Jan. 31, 1986.

      Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellant.
    Robert L. Moore, Reading, for appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, ROWLEY, WIEAND, JOHNSON and HOFFMAN, JJ.
   WICKERSHAM, Judge:

In a per curiam order the Supreme Court of Pennsylvania on June 21, 1985, 508 Pa. 77, 494 A.2d 1049, remanded this case to us “for consideration of the merits of the double jeopardy issue in view of” Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985). We must now determine whether the lower court’s grant of a demurrer was proper.

A demurrer to the evidence requires a court to accept as true the evidence presented by the Commonwealth and view that evidence, together with all reasonable inferences therefrom, in a light most favorable to the Commonwealth; then determine whether that evidence is sufficient to support a verdict of guilty beyond a reasonable doubt. Commonwealth v. Cugnini, 307 Pa.Super. 113, 452 A.2d 1064 (1982).

With this standard in mind, we now review the facts of this case. Dorcas. Clouser was found dead in her Reading apartment on April 9, 1981. When discovered, her body was lying face down on a bed, a burned cigarette and ashes and burn marks on the mattress were observed near one of her wrists, a burnt pack of matches was stuck along side of the bed between the two mattresses, and some burn marks were observed on the mattresses. Parts of her body were discolored. A white, powdery substance was scattered around the bed area. Subsequent investigation revealed that three stereo components, all belonging to Michael Farrell, with whom Ms. Clouser resided, were missing from the apartment. The components, together with an electric clock, had been plugged into a common adapter, which in turn had been plugged into a wall outlet. The clock was plugged into the adapter but not into the wall, and the time shown on its face was 7:12.

On April 7, 1981, two days prior to the discovery of Ms. Clouser’s body, appellee, Dennis Staten, made three separate visits to Rodrique Miller. During the first visit, which occurred at approximately 5:00 p.m., appellee asked Miller whether Miller wanted to buy a receiver and a turntable, as appellee planned to obtain these components by getting either a woman named Dorcas or one named Lynn high on dysoxin and robbing her. Miller warned appellee not to take any stereo equipment from Dorcas’ apartment, because the receiver Dorcas had in her apartment was the same one that Miller had originally sold to Michael Farrell. Appellee replied that he was considering robbing Dorcas because he knew her boyfriend, Farrell, was in jail at the time. Appellee then purchased some dysoxin from Miller and left.

Appellee returned to the Miller residence at approximately 8:00 p.m. that same evening carrying a green duffel bag, which was later identified as the property of Michael Farrell. Miller gave appellee fifty dollars, at which time appellee departed, leaving the bag in Miller’s possession and instructing Miller not to open it until appellee returned. An hour later, Miller examined the contents of the bag and found them to be what he later identified as Farrell’s stereo receiver and turntable. Around midnight on April 7, appellee again returned to Miller’s house and Miller gave him some additional money for the stereo components. Miller did not see appellee again until two days later, when he came to Miller’s house, asked whether Miller had read the newspaper accounts of Dorcas’ death, and told Miller to . throw the receiver and turntable into the river.

Appellee and Dorcas Clouser were also observed emerging from Ms. Clouser’s third floor apartment by a witness, John Scott, at approximately 6:00 p.m. on April 7, 1981. Appellee engaged in small talk with Scott in the vestibule of the victim’s apartment building. Around 7:30 p.m. that same evening, Scott observed appellee’s car still parked in the general vicinity.

Appellee, Dennis Staten, was charged with Dorcas Clouser’s murder and with criminal homicide, burglary, theft, aggravated assault, simple assault, and attempted arson. Appellee filed a notice of alibi defense. The burglary charge was eventually dismissed, but appellee was brought to trial on the remaining charges.

Appellee’s jury trial commenced on November 9, 1981 before the Honorable W. Richard Eshelman. The Commonwealth presented the testimony of nineteen witnesses. Expert testimony established that the white, pow;dery substance found around the victim’s bed contained sodium hydroxide, as did certain substances present on the clothing of both Ms. Clouser and appellee. Various relatives, friends, and co-workers of the victim testified that the last time they had seen or talked to the victim was on or before the evening of April 7, 1981. Also giving crucial testimony were John Scott, Rodrique Miller, and the victim’s boyfriend, Michael Farrell. Farrell testified, inter alia, that on May 13, 1981, while both he and appellee were incarcerated at the Berks County Prison, they had a chance confrontation and conversation and appellee admitted killing Ms. Clouser.

After three days of trial, Dr. Neal Hoffman, the pathologist who performed the autopsy on the victim on April 10, 1981 took the stand. He testified that her death was caused by the application and inhalation of a caustic substance containing sodium hydroxide. Finally, in response to direct questioning, he fixed the time of Ms. Clouser’s death at or about 8:15 p.m. on April 8, 1981. The doctor was eventually excused from the witness stand and the Commonwealth continued to present its case. At a later time, the Commonwealth requested permission to recall Dr. Hoffman to clarify or attempt to correct the problem which had developed in the medical testimony. Defense counsel objected, and the trial judge refused to allow the recall.

At the close of the Commonwealth’s evidence, appellee demurred to the evidence. Since much of the Commonwealth’s testimony placed appellee at the scene and with the victim on April 7, whereas the date of death was fixed at April 8, the trial court sustained the appellee’s demurrer. Judge Eshelman explained:

The Commonwealth’s evidence was clearly insufficient to allow the jury to find [appellee] guilty on the homicide charges. On the one hand, the Commonwealth, by the pathologist’s testimony, established that the victim died on the evening of April 8, whereas all of the other evidence of the Commonwealth showed that [appellee] was last seen in the vicinity of the victim’s apartment building on the evening of April 7. There was not a scintilla of evidence which placed [appellee] in Ms. Clouser’s neighborhood, let alone in her company or in her apartment, on the evening of April 8, 1981. Further, the proof adduced at trial regarding time of death was in irreconcilable conflict with the charge set forth in the information that “on the same day and year [April 7, 1981] ... [appellee] did feloniously, willfully, deliberately, intentionally and premeditatedly, kill one Dorcas Clouser, and the said victim, being so mortally wounded, did die on April 7, 1981, between 6:00 p.m. and 8:00 p.m.”
Where time is of the essence of the offense, such a discrepancy is fatal to the Commonwealth’s case. Com monwealth v. Boyer, 216 Pa.Super. 286, 264 A.2d 173 (1970). Since [appellee’s] reliance on an alibi defense made time of the essence in this case, Commonwealth v. Boyer, supra, it would have been.error to deprive [appellee] of this defense by allowing the jury to find him guilty of killing Dorcas Clouser at any time other than April 7 between 6:00 and 8:00 p.m. as charged. Yet, as stated above, the Commonwealth’s only probative evidence of the actual time of death, i.e. the evening of April 8, made impossible a conviction predicated on the April 7 date and time as charged.

Lower ct. op. at 5-6.

The lower court also held that the Commonwealth’s evidence was insufficient to allow the remaining charges to go to the jury. The Commonwealth filed this timely appeal.

The Commonwealth argues that the trial court erred in refusing to permit the Commonwealth to recall its expert medical witness. We agree.

The Commonwealth states the issue for our consideration as:

Did the trial court err in refusing to permit Commonwealth to recall an expert medical witness to explain previous testimony believed by Commonwealth to be in error with respect to time of death since the absence of such correction resulted in granting of demurrer?

Commonwealth’s Argument Brief at 3.

The question before us, therefore, is whether Judge Eshelman’s order sustaining the demurrer should be reversed on this appeal. We know that if we should reverse and grant a new trial, such procedure would not offend double jeopardy. See Zoller, supra.

The precise offer of the prosecuting attorney at trial was as follows:

MR. BUCCI: On the record I would state that I wish to recall my witness, Neal Hoffman, to clarify, to attempt to correct the problem which has developed in the medical testimony. Medical testimony has now placed the time of death at a day later than almost 24 hours after the witnesses placed the defendant at the scene of the crime. Would Your Honor rule on my request?
MR. MOORE: I would strongly object to recalling Dr. Hoffman.
THE COURT: I sustain the objection. I feel that his testimony was clear and you had an opportunity to question him with respect to the opinion as to the lapse of time since the occurrence of death, and even broaden or liberalize his opinion of 36 hours, but he chose to adhere to that and I don’t feel that I can now allow you to have him come back and give different testimony.

Record at 278.

We agree with the Commonwealth that the lower court abused its discretion in not allowing the recall of Dr. Hoffman. The notes of testimony at the preliminary hearing reveal that in his testimony at that proceeding, Dr. Hoffman placed the time of death some 12 to 28 hours earlier than the 36 hours he testified to at trial. It is apparent that the Commonwealth was surprised by Dr. Hoffman’s trial testimony and that the district attorney needed time to review his notes and have the expert witness review his reports. It is also apparent from the record that the court knew that not only would a refusal of the Commonwealth’s request for recall of the witness precipitate a defense request for a demurrer,, but that should such motion be made, the court would grant it.

The decision as to whether a party may be recalled is left to the trial court’s discretion, Commonwealth v. Martinez, 498 Pa. 387, 446 A.2d 899 (1982), and will not be reversed unless it constitutes an abuse of that discretion. Commonwealth v. Crosby, 450 Pa. 68, 297 A.2d 114 (1972). For example, the trial court in another murder prosection, did not abuse its discretion in permitting the Commonwealth to recall a witness to give further testimony on the issue of corpus delicti after the defendant had objected to the admissibility of his confession on the ground that a corpus delicti had not been established. Commonwealth v. Moore, 443 Pa. 364, 279 A.2d 179 (1971).

Similarly, it has long been the law that the trial court has the discretion to permit either side to reopen its case to present additional evidence. Commonwealth v. Evans, 488 Pa. 38, 410 A.2d 1213 (1979); Commonwealth v. Mathis, 317 Pa.Super. 362, 464 A.2d 362 (1983). For example, even where the defendant demurred at the close of the Commonwealth’s case in a theft prosecution, arguing that the Commonwealth had failed to establish the value of the stolen items, we held that the court did not abuse its discretion in allowing the prosecution to reopen its case to show value. Id. The test for reopening a criminal case is whether a failure or miscarriage of justice would occur. Commonwealth v. Strunge, 287 Pa.Super. 212, 429 A.2d 1176 (1981); Commonwealth v. Ridgely, 243 Pa.Super. 397, 365 A.2d 1283 (1976).

It is clear that a heinous crime had been committed. There was overwhelming evidence that appellee had designs on the victim’s property and was with her at her apartment two days before her body was discovered, the day after which her friends and relatives were unable to reach her. There was even evidence of his admission of guilt. To not allow the Commonwealth the opportunity to recall Dr. Hoffman, in an attempt to clarify the time of death, seems to us to be a miscarriage of justice. While we cannot guess what Dr. Hoffman would have said upon recall, we must find that the trial court abused its discretion in not allowing the Commonwealth the opportunity to recall its expert witness, especially since such refusal resulted in an order dismissing the charges against appellee.

Furthermore, even if we did not find abuse of discretion in the refusal to allow Dr. Hoffman’s recall, we cannot agree with the trial court that the grant of a demurrer was proper in this case. The criminal complaint against Dennis Staten accused him of, inter alia, the crime of murder in that “on or about 4/7/81 between 6:00 P.M. and 8:00 P.M.” he did cause the death of Dorcas Clouser (emphasis added). The Commonwealth introduced evidence that Staten and the victim were together on April 7, 1981 and that the victim sustained a violent death by criminal means on April 8, 1981, the cause of death being the application and inhalation of a strongly caustic substance which burned her face, her mouth and her respiratory tree, including her lungs. The burns were consistent with those caused by sodium hydroxide or caustic soda. The testifying pathologist also identified during the autopsy various evidence of trauma to the head, neck and shoulder area — “considerable amount of force to cause the injury.” (N.T. 244). The Commonwealth further proved a statement by appellee in which he admitted causing her death.

In Commonwealth v. Rouse, 207 Pa.Super. 418, 218 A.2d 100 (1966), the defendant was charged with several crimes ‘on or about November 15, 1964.’ In Rouse, it was also argued that the Commonwealth failed to prove that the offenses occurred on the same date as that set forth in the indictment. In response, this court stated:

It is well established in this jurisdiction that the Commonwealth is not restricted to proof of the crime on the exact date stated in the indictment____ In the prosecution of ... crimes in which a particular date or day of the week is not the essence of the offense, the Commonwealth’s burden is to prove the commission of the crime upon some date fixed with reasonable certainty and within the prescribed statutory period.

Id., 207 Pa.Superior Ct. at 421-22, 218 A.2d at 102.

Rule 213(a)(3) of the Pennsylvania Rules of Criminal Procedure provides:

(a) An indictment shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains:
** * * * *
(3) the date when the offense is alleged to have been committed if the precise date is known ... provided that if the precise date is not known or if the offense is a continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of limitations shall be sufficient[.]

The Rules make clear that the precise date of an offense need not be known in all cases.

We believe that the trial judge abused his discretion in granting the demurrer to the Commonwealth’s evidence. At the point in the trial where the court rulings took place, the Commonwealth had clearly established a case for presentation to the jury: a violent death by criminal means, a motive on the part of defendant, circumstantial and direct evidence of the defendant’s presence at the murder scene near to the time of death and an admission of guilt following the crime.

Reversed and remanded for a new trial on the criminal homicide, murder, and theft charges. Jurisdiction is relinquished.

BROSKY, J., files a concurring statement.

WIEAND, J., files a dissenting opinion.

BROSKY, Judge,

concurring:

I concur in the result. The testimony of record was sufficient to withstand the demurrer. See Commonwealth v. Kelly, 237 Pa.Super. 468, 352 A.2d 127 (1975).

WIEAND, Judge,

dissenting:

I continue to be of the opinion that the Commonwealth does not have a right to appeal from a trial court’s mid-trial determination that the evidence is insufficient to sustain a finding of guilt. My reasons have been stated in Commonwealth v. Smalis, 331 Pa.Super. 307, 480 A.2d 1046 (1984). Although Smalis was reversed by the Supreme Court of Pennsylvania sub nom. Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985), the United States Supreme Court granted certiorari on November 4, 1985.

The majority reverses the trial court’s mid-trial determination and remands for a new trial. In my judgment, a second trial is barred by principles of double jeopardy. Because this issue is now before the Supreme Court of the United States, however, judicial economy would best be served by deferring our decision in this case until such time as the Supreme Court has decided whether a retrial will offend the double jeopardy clause of the Constitution of the United States.

      . Predicated on our opinion in Commonwealth v. Smalis, 331 Pa.Super. 307, 480 A.2d 1046 (1984), we originally quashed the Commonwealth’s appeal in the instant case. See Commonwealth v. Staten, 332 Pa.Super. 521, 481 A.2d 910 (1984). Due to the reversal of Smalis by our supreme court in Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985), the instant case is again before us. We note, however, that on November 4, 1985, the Supreme Court of the United States granted certiorari in Smalis at — U.S. —, 106 S.Ct. 307, 88 L.Ed.2d 285.

      . We note in passing that this was the first time Dr. Hoffman had ever testified in a jury trial in Pennsylvania.

      . The Commonwealth does not oppose the demurrer as to the charges of aggravated assault, simple assault, and attempted arson.