author: OLSZEWSKI, Judge:

text:
    487 A.2d 857
    Sidney LEVY and Frieda Levy, as Assignees of Sid-Fried Enterprises, Inc., and Sidney Levy and Frieda Levy, Trustees of Novelty Printing Co. Profit Sharing Trust v. FIRST PENNSYLVANIA BANK N.A., Appellant v. Robert V. BOLGER, II, Bennett G. Picker, Arthur W. Hankin, Carl S. Tannenbaum and Steven R. Waxman, Individually and t/a Bolger & Picker, a partnership, and Richard S. Robinson.
    Superior Court of Pennsylvania.
    Argued Aug. 22, 1984.
    Filed Jan. 9, 1985.
    Petition for Allowance of Appeal Granted June 17, 1985.

      J. Dennis Faucher, Philadelphia, for appellant.
    Richard M. Jordan, Philadelphia, for appellees.
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

First Pennsylvania Bank appeals the dismissal of its exceptions to the Opinion of Judge Lois G. Forer, awarding appellee $222,776.87 with interest. The underlying action is a suit for conversion of three checks paid to a person other than the owner.

The facts are simple. The Levys were clients of the law firm of Bolger & Picker. When they sold their business, Novelty Printing, in February, 1978, the Levys instructed Richard Robinson, a partner at Bolger & Picker, to open an account for them in the name of B & J Corp. at a local brokerage firm. When the treasury bills purchased by the broker matured, Robinson was directed to deposit checks sent to him by the broker into the Levy’s bank accounts at Girard Bank and Industrial Valley Bank.

Robinson received three checks in the sums of $75,000, $75,000 and $72,776.87 from the broker. Instead of depositing them in the Levy’s bank accounts, he deposited them in his own personal account at First Pennsylvania. Robinson accomplished this by signing the back of the checks with the names of the payees, B & J Corp. and Novelty Printing Company Profit Sharing Trust, and the notations “deposit to account No. 773-784-4”. This was Robinson’s personal account. He later withdrew the money and disposed of it. When the scheme was discovered, the law firm’s insurer paid to the Levys the amount of the checks.

The Levys then brought this action against First Pennsylvania for conversion. The bank joined Bolger & Picker and Robinson as co-defendants. At a non-jury trial, the Levys were awarded $222,776.87 with interest from September 14, 1979, the date upon which the insurer reimbursed the Levys.

Here, the bank appeals the trial court’s dismissal of its exceptions.

Appellant assigns a number of errors to the lower court’s opinion; we address them seriatim. Appellant first argues that it cannot be held liable for making final payment on the instruments because Robinson’s endorsements were not forgeries. The argument is rooted in the language of 13 Pa.C.S. § 3419 (Purdon’s 1984 Pamphlet), which states:

§ 3419. Conversion of instrument; innocent representative
(a) Acts constituting conversion. An instrument is converted when:
(1) a drawee to whom it is delivered for acceptance refuses to deliver it on demand;
(2) any person to whom it is delivered for payment refuses on demand either to pay or return it;
(3) it is paid on a forged instrument.

Appellant avers that the endorsement was not forged because Robinson had the authority to endorse the checks. If he did have the authority to endorse, appellant claims Robinson’s writing of the payees’ names constituted an endorsement in blank, and then the checks were properly payable to anyone under 13 Pa.C.S. § 3204. What subsequently happened to the checks would be irrelevant to the bank’s liability, in appellant’s view.

The trial court found that Robinson’s authority was limited to endorsing checks for deposit into the Levy’s accounts at Girard and IVB. It found that neither express nor implied authority to endorse in blank existed, and that the endorsements were unauthorized. Lower court opinion at 27.

Under Pennsylvania law, the issue of agency is for the finder of fact. Breslin by Breslin v. Ridarelli, 308 Pa.Super. 179, 454 A.2d 80 (1982). Here, the court, as finder of fact, concluded that Robinson had no authority to endorse the checks as he did. When a finding of fact is adequately supported by the record, we will not overrule the trial court. Spatz v. Nascone, 283 Pa.Super. 517, 424 A.2d 929 (1981). The record indicates that the Levys told Robinson to deposit the checks in their accounts. N.T. at 47.2-48.2. Accordingly, we do not disturb the court’s finding.

The question remains as to whether an unauthorized endorsement is the same as a forged instrument under 13 Pa.C.S. § 3419. Although no court in the Commonwealth has held on this point, to our knowledge, other courts have held that “forgery” under UCC § 3-419 includes “unauthorized signature.” We conclude that an unauthorized signature is the same as a forgery for purposes of an action for conversion under 13 Pa.C.S. § 3419. The trial court properly found the bank liable for paying the checks to Robinson.

Appellant also argues that 7 P.S. § 6393 (Purdon’s 1984-85 Supp.) shelters it from liability. Under this section of the Uniform Fiduciaries Act, a bank is relieved of the burden of inquiry when a fiduciary makes a deposit to his personal credit of checks payable .to the principal. The court below noted, however, that Robinson had no power to endorse the checks as he did, and the section relieves banks of liability only when the fiduciary has the power to endorse. Lower court opinion at 21. We agree with the lower court that 7 P.S. § 6393 does not shield the bank from the consequences of its acts.

The bank also maintains that the law firm should have been found liable for Robinson’s acts, and, on that basis, the bank is entitled to contribution or indemnification from the law firm. The trial court found that the law firm was not liable under 59 Pa.C.S. §§ 321, 325 and 326 (Purdon’s 1984-85 Supp.), and that no right of contribution or indemnification existed.

The law of indemnity states that when a person who, without active fault on his own part, has been compelled by reason of some legal obligation to pay damages occasioned by the negligence of another, he may recover from the person who is primarily liable. Our Supreme Court, in Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969), stated:

Secondary, as distinguished from primary liability, rests upon a fault that is imputed or constructive only, being based on some legal obligation between the parties or arising from some positive rule of statutory or common law ...

Id., 433 Pa. at 327, 249 A.2d at 565.

The bank argues that it is being required to pay damages, and that the loss is based on a positive rule of statutory law, § 3419. It argues that it was not primarily at fault, and that the Commonwealth’s partnership statutes, 59 Pa. C.S. §§ 325, 326 and 327, impose liability on a partnership for wrongful acts of a partner. The bank argues that the partnership statutes require the partnership, not the bank, to pay the loss.

The statutes in question would appear to impose liability on a partnership, and on the individuals comprising the partnership, without regard to fault when a partner causes a client’s loss:

§ 325. Wrongful act of partner
Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his co-partners, loss or injury is caused to that person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.
§ 326. Breach of trust by partner
The partnership is bound to make good the loss:
(1) Where one partner, acting within the scope of his apparent authority, receives money or property of a third person and misapplies it.
(2) Where the partnership in the course of its business receives money or property of a third person, and the money or property so received is misapplied by any partner while it is in the custody of the partnership.
§ 327. Nature of liability of partner
All partners are liable:
(1) Jointly and severally, for everything chargeable to the partnership under section 325 (relating to wrongful act of partner) and section 326 (relating to breach of trust by partner).
(2) Jointly for all other debts and obligations of the partnership; but any partner may enter into a separate obligation to perform a partnership contract.

59 Pa.C.S. § 325, 326 and 327 (Purdon’s 1984-85 Supp.).

In our opinion, these are not statutes of strict liability. They are statutory causes of action derived from the respondeat superior theory of recovery. See First National Bank of Altoona v. Turchetta, 407 Pa. 511, 181 A.2d 285 (1962) (holding partnership liable for forgeries); Blackmon v. Hale, 1 Cal.3d 548, 83 Cal.Rptr. 194, 463 P.2d 418 (1970) (partnership liable for embezzlement by partner); Cook v. Brundidge, Fountain, Elliot and Churchill, 533 S.W.2d 751 (Texas 1976) (partnership liable). The statute appears to place the partnership in the position of an insurer, and guarantees that the innocent client will not bear the loss.

Therefore, the particular statutes at issue do not mean that the partnership has done a wrong when a partner does a wrong. It requires the partnership to reimburse the innocent client, and permits the partnership to recover its loss from the truly guilty party. The bank cannot use the Uniform Partnership Act to recover from the partnership for its own negligence.

Finally, appellant bank argues that the court below erred in awarding damages for delay at the rate of 10 percent. Appellant argues that 6 percent is appropriate, and that the court’s determination was based incorrectly on the rate specified in Pa.R.Civ.P. 238, which applies to personal injury claims.

The rate of interest in damages for delay, as well as the decision as to its award, is in the discretion of the trial court. Sack v. Feinman, 495 Pa. 100, 432 A.2d 971 (1981). The court below found that damages for delay, at a rate of 10 percent of the judgment, were necessary to make the injured parties whole. Lower court opinion at 26. The rate of 10 percent, termed “realistic” by the court, was apparently arrived at by the court’s examination of yields for money market funds. Record at 451a-452a. The determination does not appear to us to be an abuse of discretion, and we affirm the award of damages for delay.

Affirmed.

      . B & J Corp. was to be the Levys’ new business enterprise. The account contained both the assets of the Novelty Printing Company Profit Sharing Trust and the proceeds of the sale of the company.

      . Two of the checks were payable to the order of Novelty Printing Company Profit Sharing Trust. One was payable to the order of B & J Corp. Lower court opinion at 2-3.

      . Richard Robinson is now serving a prison sentence for embezzlement, forgery and fraud. He is a defendant in this action, but took no part in the trial.

      . The insurer advanced the money and took loan receipts. Lower court opinion at 25.

      . Bolger & Picker settled with the Levys after the pleadings were filed. Appellant’s Brief at 4.

      . 13 Pa.C.S.A. § 3419 is identical to Uniform Commercial Code § 3-419. The Pennsylvania Bar Association notes to the UCC are found in 12A Pa.S.A., as are the comments of the UCC's drafters.

      . 13 Pa.C.S. § 3204(b) (Purdon’s 1984 Pamphlet):
      (b) Blank endorsement. — An endorsement in blank specifies no particular endorsee and may consist of a mere signature. An instrument payable to order and endorsed in blank becomes payable to bearer and may be negotiated by delivery alone until specially endorsed.

      . Under 13 Pa.C.S. § 1103 (Purdon's 1984 Pamphlet), the principles of agency that existed before the enactment of the UCC supplement the UCC’s provisions. The law of agency of Pennsylvania is therefore applicable here.

      . Appellant characterizes the endorsements as “blank,” making the instruments payable to the bearer, Robinson. We disagree. Under 13 Pa.C.S. § 3205(3) (Purdon’s 1984 Pamphlet), the endorsements were restrictive, authorizing the bank only to pay the checks into Robinson’s account. 13 Pa.C.S. § 3206(c) (Purdon’s 1984 Pamphlet). Robinson certainly lacked authority to make such restrictive endorsements.

      . See Aetna v. Hepler, 6 Kan.App.2d 543, 630 P.2d 721, 23 A.L.R.4th 841 (1981); Top Crop Seed & Supply Co., Inc. v. Bank of Southwest Louisiana, 392 So.2d 738 (La.App.1980); Equipment Distributors, Inc. v. Charter Oak Bank and Trust Co., 34 Conn.Supp. 606, 379 A.2d 682 (1977). See also 6 R. Anderson, Uniform Commercial Code § 3-419: 40 at 439 (3d ed. 1984) and Annot., 23 A.L.R.4th 855 (1983).

      . The trial court based its holding in part on the definition of forgery under Pennsylvania law:
      (a) Offense defined. — A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
      (1) alters any writing of another without his authority;
      (2) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize the act, or to have been executed at a time or place or in a number sequence other than was in fact the case, or to be a copy of an original when no such original existed; or
      (3) utters any writing which he knows to be forged in a manner specified in paragraphs (1) or (2) of this subsection.
      18 Pa.C.S. § 4101 (Purdon’s 1983).
      The crime of forgery appears to include the making of unauthorized signatures. Since forgery is nowhere defined in the Uniform Commercial Code, we take guidance from the criminal code in concluding that, for purposes of a conversion action brought under § 3419, “forgery" includes "unauthorized signature."

      . § 6393. Deposit in fiduciary’s personal account
      If a fiduciary makes a deposit in a bank to his personal credit of checks drawn by him upon an account in his own name as fiduciary; or of checks payable to him as fiduciary; or of checks drawn by him upon an account in the name of his principal, if he is empowered to draw checks thereon; or of checks payable to his principal and indorsed by him, if he is empowered to indorse such checks; or if he otherwise makes a deposit of funds held by him as fiduciary, — the bank receiving such deposit is not bound to inquire whether the fiduciary is committing thereby a breach of his obligation as fiduciary, and the bank is authorized to pay the amount of the deposit, or any part thereof, upon the personal check of the fiduciary, without being liable to the principal, unless the bank receives the deposit or pays the check with actual knowledge that the fiduciary is committing a breach of his obligation as fiduciary in making such deposit or in drawing such check or with knowledge of such facts that its action in receiving the deposit or paying the check amounts to bad faith.

      . The court below held that because Robinson had no power to endorse the checks as he did, that is, restrictively, the UFA did not protect the bank. In light of the Supreme Court’s holdings in Strong v. City National Bank of Philadelphia, 355 Pa. 390, 50 A.2d 323 (1947) and Bacher v. City National Bank of Philadelphia, 347 Pa. 80, 31 A.2d 725 (1943), we feel we must address the lower court’s holding.
      In Bacher, the dishonest lawyer had signed the check at issue “Estate of Anna Hoffman/William J. Bailen/Attorney.” He then deposited the check into his personal account at the bank. The Supreme Court held that the UFA protected the bank, since the attorney was a fiduciary and had the power to endorse checks. The fact that he had endorsed a check for deposit into his personal account did not mean his power was non-existent. As long as the attorney had had any power at all to endorse checks, he had the “power to endorse” required under the UFA, the Court held. The bank having a valid defense in the UFA, the Court found that the estate’s motion for summary judgment had been granted improperly.
      In the later case, Strong, the Court held that the UFA protected the bank from liability. The Court reasoned that because the attorney was a fiduciary who drew checks on his personal account, which was funded by estate checks improperly deposited there, the UFA shielded the bank.
      If we were to accept the lower court’s characterization of Robinson’s power, our holding clearly would conflict with Bacher and Strong. The position taken by the lower court, the same as taken by the dissents in Bacher and Strong, interprets "power to endorse” in a way that comports with this Court’s analysis of the nature of the endorsements under the conversion statute, 13 Pa.C.S. 3419.
      Because the facts in the case at bar are different from those in Bacher and Strong, we think our current holding does not conflict with those cases. The endorsement in Bacher and Strong was different from the one here. The lawyer’s signature in Bacher and Strong specifically called to the attention of parties dealing with the instrument the fiduciary nature of the depositor. In the instant case, the depositor’s signature did not indicate a fiduciary relationship. Nothing on the check indicated to the bank that the payee of the check with which it was dealing was protected by the rules and regulations governing fiduciaries’ responsibilities toward their principals.
      The UFA is designed to shield banks from negligence only when they know that the party before them is acting for another. The Drafters’ Prefatory Note specifically states: "The Act covers situations which arise where one person deals with another person whom he knows to be a fiduciary.” 7A Uniform Laws Annotated 127 (West 1978).
      We cannot believe it would be a fair result to release the bank from liability because of Robinson's fiduciary status when the manner in which the checks were signed did not give the bank notice of that status. The UFA is intended to make easier transactions of a fiduciary nature, by making it unnecessary for banks to check into the power of the fiduciary standing at the teller’s window to do what he desires to do. Here, where it cannot be said that the bank knew of the relationship between the payees and the endorser, the bank cannot honestly claim that it goes against the UFA’s intent to hold it liable. Making transactions between banks and known fiduciaries easier and faster is a goal we recognize. Making transactions between banks and persons who are not known to be fiduciaries risk-free is another goal, one which has not been addressed by the legislature. We decline to make transactions risk-free for the bank in circumstances such as in this case to the extent advocated here.

      . The bank argues that if indemnity is not allowed, contribution should be permitted. Contribution is appropriate only in situations where the parties are joint tortfeasors. See Lasprogata v. Qualls, 263 Pa.Super. 174, 397 A.2d 803 (1979). Since the partnership has done no wrong, it cannot be held liable in contribution.

      . These are §§ 13, 14 and 15 of the Uniform Partnership Act.

      . It would appear from an examination of 13 Pa.C.S. § 3419 and 59 Pa.C.S. §§ 325, 326 and 327 that they are alternative ways for the Levys to recover their lost funds. Section 3419 is a statutory cause of action derived from the tort of conversion, while sections 325, 326 and 327 Eire statutory causes of action derived from the tort theory of respondeat superior.
      Here, where the plaintiff may recover from either bank or law firm by statute, as well as from Richard Robinson under the common law, it would be unfair for the loss to fall on only one of two statutorily liable parties simply because of the plaintiffs litigation strategy. Therefore, we note here, as in our opinion, that while under §§ 325, 326 and 327, the law firm acts as an insurer to the client for any losses occasioned by a partner's misdeeds, the law firm ordinarily can recover from the bank in circumstances like the one at hand.
      It seems clear that if a partner were to embezzle from a client, the firm could be required to reimburse the client under the partnership statutes and then could proceed against the partner or the bank in indemnity. It is plain that the law firm's liability would be constructive only.
      It also should be noted that the bank, under 13 Pa.C.S. § 3404(a), has a cause of action against Richard Robinson, and so the final loss, no matter what litigation strategy is pursued, will lie on the original tortfeasor.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    487 A.2d 864
    George J. ROSKWITALSKI and Helen Roskwitalski, His Wife v. Peter Wheeler REISS and William C. Mickle Trustees of The Armella B. Demmler Trust As Substituted Defendants For Defendant Armella B. Demmler Widow Now Deceased and Robert F. Skultety. Appeal of George J. ROSKWITALSKI and Helen Roskwitalski, His Wife at No. 164 Pittsburgh, 1983. Appeal of Robert F. SKULTETY at No. 174 Pittsburgh, 1983.
    Superior Court of Pennsylvania.
    Argued Aug. 28, 1984.
    Filed Jan. 11, 1985.

      John B. Nicklas, Jr., Pittsburgh, for appellants (at 164) and for appellees (at 174).
    Louis C. Long, Pittsburgh, for appellants (at 174) and for appellees (at 164).
    Before ROWLEY, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

George J. and Helen Roskwitalski (Appellants at No. 164 Pittsburgh, 1983) filed a quiet title action in 1975 alleging that they were equitable owners of real estate situated in Ross Township, Allegheny County and formerly owned by Armella B. Demmler. A July 1, 1976 order of the trial court decreed that the Roskwitalskis were equitable owners of the disputed property, but the trial court’s order of July 1, 1976 was reversed by this court in Roskwitalski v. Reiss, 266 Pa.Super. 29, 402 A.2d 1061 (1979) (Roskwitalski I).

Briefly by way of factual background, Mrs. Demmler, an Arizona resident, entered into a listing agreement dated May 1, 1975 with a real estate agent named George W. Jones concerning the Ross Township property. The listing agreement contained the following language:

[T]he undersigned hereby gives you the sole and exclusive right to sell said property ... for the sum of Thirty-two Thousand Five Hundred Dollars on the following terms: Cash $ All, if possible.

(R. at 7a).

On May 2, 1975 the Roskwitalskis executed a proposed sales agreement witnessed by Jonés which called for the property to be sold for $32,500. (R. at 8a, 9a). Several days later, on May 7, 1975 Robert F. Skultety (Appellant at No. 174 Pittsburgh, 1983) also executed a proposed sales agreement witnessed by Jones calling for the sale of the property presently in dispute for $40,000. Both proposed sales agreements were then mailed by Jones to Mrs. Demmler who signed only the agreement executed by Skul-tety.

The Roskwitalskis filed a quiet title action against Mrs. Demmler and Skultety seeking to establish title in the disputed property based on the May 2, 1975 alleged sales agreement. Skultety counterclaimed praying for (1) judgment in his favor, (2) recognition by the trial court of his right, title and interest in the property, and (3) the declaration that all other claims to the property are null and void.

The trial court in its July 1, 1976 order concluded that the Roskwitalskis were the equitable owners and that the legal owners were Mrs. Demmler’s trustees who were substituted as defendants following Mrs. Demmler’s death.

On appeal this court in Roskwitalski I held that (1) Jones did not have authority to enter into a contract for the sale of Mrs. Demmler’s property since the complete terms for purchase were not stated in the totality of communications between Jones and Mrs. Demmler, that (2) Jones signed the Roskwitalskis’ proposed sales agreement only as a witness to the Roskwitalskis’ signatures, and that (3) Jones had no apparent authority to execute a contract for sale on behalf of Mrs. Demmler. The order of the trial court was reversed and the case was then remanded to the trial court for further proceedings not inconsistent with the conclusions of this court.

Thereafter Skultety moved for summary judgment. Skultety’s Motion for Summary Judgment alleged and the Roskwitalskis’ responsive pleading admitted that, on June 26, 1980 while the appeal in Roskwitalski I was pending, the Demmler trustees executed and delivered a deed of the disputed property to the Roskwitalskis and that the deed was recorded in the office of the Recorder of Allegheny County at Deed Book Volume 5971, page 109. (R. at 52a; Affidavit of the Roskwitalskis in Opposition to Motion for Summary Judgment filed June 4, 1980). This motion was denied by the trial court and a hearing was finally held on August 23, 1982 to receive additional evidence. However, neither party presented evidence at that time.

On September 9, 1982 the trial court entered an order quieting legal title in the Roskwitalskis and equitable title in Skultety. (R. at 16a). Both parties filed exceptions to the trial court’s decree nisi. These exceptions were dismissed and on January 7, 1983 the trial court filed its final decree which prompted these cross appeals.

On this appeal, the Roskwitalskis initially argue that they should be equitable owners of the disputed property because the receipt by Mrs. Demmler of the sales agreement signed by the Roskwitalskis constituted a legally binding oral agreement. The Roskwitalskis also claim that Skultety had no standing to raise the Statute of Frauds as a defense, and that in the absence of a supersedeas, the Demmler trustees did nothing improper when they executed and delivered a deed of the property to the Roskwitalskis while an appeal was pending in Roskwitalski I. Finally it is argued that Pennsylvania courts have no jurisdiction to award specific performance to Skultety in a quiet title action.

Skultety takes the position that the trial court properly applied the law of the case doctrine in denying the Roskwi-talskis’ exceptions, but erred in holding that the Roskwi-talskis had acquired legal title to the disputed property since there was no competent evidence to support this conclusion. Skultety also argues that the trial court erred in not ordering specific performance of the Skultety agreement of sale.

For the following reasons we find the arguments advanced by the Roskwitalskis to be without merit. On Skultety’s cross-appeal we conclude that the claims of the Roskwitalskis to the disputed property should be declared invalid and further that the Demmler trustees should be directed to convey good title to Skultety in accordance with the May 7, 1975 sales agreement.

The arguments which the Roskwitalskis raise on appeal are not convincing. We agree with the trial court that these issues are within the parameters of Roskwitalski I, and thus covered by res judicata or the law of the case doctrine. Under this doctrine a trial court must strictly comply with the mandate of the appellate court and issues decided by an appellate court on a prior appeal will not be reconsidered on a second appeal. Commonwealth v. Tick, 431 Pa. 420, 246 A.2d 424 (1968); Albright v. Wella Corp., 240 Pa.Super. 563, 359 A.2d 460 (1976).

In Roskwitalski I, we concluded that Jones, the real estate agent, had no authority to sell the Demmler property under the listing agreement since complete terms for the purchase of the property were not stated in the “totality of communications between the principal and the broker.” Id., 266 Pa.Super. at 35, 402 A.2d at 1065. This listing agreement, which the Roskwitalskis now claim constituted an offer to sell the Ross Township property, was not a general solicitation, but rather an apparent agreement between the seller and a single real estate broker which did not even give Jones apparent authority to sell. At best this listing agreement gave Jones authority to seek potential buyers. Even if the listing agreement were considered to be directed towards the general public, it could only be viewed as an invitation to bid and not an offer. In Re Hanna’s Estate, 383 Pa. 196, 117 A.2d 730 (1955).

Since the listing agreement at best is no more than an invitation to bid, the Sales Agreement form signed by the Roskwitalskis is not an acceptance of an offer by Mrs. Demmler, but merely an offer which Mrs. Demmler never accepted. Because no oral agreement ever existed between the Roskwitalskis and Mrs. Demmler, we need not address the question of whether Skultety had standing to raise the Statute of Frauds.

The final argument raised by the Roskwitalskis is that Skultety cannot complain of the transfer of the Ross Township property to the Roskwitalskis since Skultety failed to apply to this court for a supersedeas. This contention is completely without merit. While it may be true that no judicial order prohibited transfer of the disputed property while appeals were still pending, any transfer made during the pendency of appeals was made subject to a final disposition of the case. Cf. Pa.R.A.P. 1701. It would be an anomalous situation if a party to a pending appeal could take actions which irrevocably affected the status quo, when the trial court’s authority to act once an appeal is filed is extremely limited.

We now turn to the issues raised by Skultety in his cross-appeal. Skultety claims that the trial court erred in failing to declare the Roskwitalskis’ claims invalid, and in not ordering specific performance of Skultety’s agreement of sale.

The trial court concluded that it did not have the power to order the remedy of specific performance in a quiet title action. We disagree. The procedural rules governing actions to quiet title grant courts broad powers which include the power to order specific performance.

Pa.R.C.P. 1061(b)(3) states that an action to quiet title may be brought:

(3) to compel an adverse party to file, record, cancel, surrender or satisfy of record, or admit the validity, invalidity or discharge of, any document, obligation or deed affecting any right, lien, title or interest in land...

Our supreme court in White v. Young, 409 Pa. 562, 566, 186 A.2d 919, 921 (1963) recognized that “(t)he underlying purpose of [Rule 1061] is to unify into one single procedure all the diverse procedures by which clouds on title were formally tried.”

The court in Young was faced with a quiet title action where a lessor was seeking to have the lease in question declared terminated and to have the trial court enter an order requiring the removal of drilling equipment on the premises. The trial court found that the lessor was entitled to the relief requested. On appeal the trial court’s jurisdiction to order equitable relief was questioned, but, in explaining the rationale for affirming the trial court's decision, Justice Cohen stated:

If equity did not accept jurisdiction over this cause of action, an unfortunate situation would ensue. The case would be referred to the law side where lessor’s title would be adjudicated under Rule 1061. When lessor prevailed in that action, he would then have to go to equity to obtain the above-mentioned relief. Certainly it was not the intendment of the rule that there be two suits where formerly there was one. Since the remedy at law is inadequate as to the part of the proceedings involving injunctive relief, a court of equity should take jurisdiction over the entire controversy in order to do complete justice and to avoid piecemeal litigation.

Id., 409 Pa. at 566, 186 A.2d at 920, 921 (footnote omitted).

Pa.R.C.P. 1066 sets forth the type of relief that trial courts can grant in quiet title actions. Subsections (3) and (4) of Rule 1066 indicate that upon granting relief to the plaintiff, the trial court:

(3) shall enter a final judgment ordering the defendant, the prothonotary, or the recorder of deeds to file, record, cancel, surrender or satisfy of record, as the case may be, any plan, document, obligation or deed determined to be valid, invalid, satisfied or discharged, and to execute and deliver any document, obligation or deed necessary to make the decree effective; or
(4) shall enter any other order necessary for the granting of proper relief.

Neither the trial court in its opinion nor the Roskwitalskis in their briefs to this court discuss White v. Young, supra, or cite any case law to support the trial court’s conclusion that the remedy of specific performance is not permitted in a quiet title action. We hold that the broad language of Rules 1061 and 1066, taken together, authorize trial courts to grant the remedy of specific performance where appropriate. While Rule 1066(b) speaks of “granting relief to the plaintiff”, this rule also applies to other parties such as defendants who may assert a counterclaim against the plaintiff.

Having determined that the remedy of specific performance can be appropriate in quiet title actions, we now focus on whether the trial court abused its discretion in not granting Skultety this remedy. In light of our earlier decision in Roskwitalski I, and in light of the fact that no evidence was presented by the parties following remand, we believe that the trial court should have granted Skultety the relief which he requested.

The argument by the Roskwitalskis that the trial court has no jurisdiction to order the Demmler trustees to deliver a deed to Skultety is not persuasive since the trial court has in personam jurisdiction over the Demmler trustees. On November 26, 1975 the Demmler trustees responded to the Roskwitalskis’ complaint by filing an answer. Because that responsive pleading did not raise the defense of lack of in personam jurisdiction, the Demmler trustees voluntarily submitted themselves to the jurisdiction of the trial court. Preliminary objections are the exclusive means by which to raise the question of in personam jurisdiction and the failure to so raise the question of personal jurisdiction constitutes a waiver of that defense. Pa.R.C.P. 1032. See also Monaco v. Montgomery Cab Co., 417 Pa. 135, 208 A.2d 252 (1965); Com. ex rel. Cook v. Cook, 303 Pa.Super. 61, 449 A.2d 577 (1982).

The Roskwitalskis cite Conley Corp. v. Reiter, 413 Pa. 213, 196 A.2d 300 (1964) and Atlantic Seaboard Natural Gas Co. v. Whitten, 315 Pa. 529, 173 A. 305 (1934) to support their position that the trial court lacked in person-am jurisdiction over the Demmler trustees. These cases are easily distinguishable from the instant case, however, since the court’s in personam jurisdiction in both cases was immediately disputed by the nonresident party. Here the Demmler trustees waived any possible objection when they filed an answer on November 26, 1975 rather than preliminary objections. Neither the Demmler trustees nor any other party can now challenge the trial court’s in personam jurisdiction.

We do agree with the Roskwitalskis, however, that the trial court properly considered evidence of the transfer of the Ross Township property to the Roskwitalskis. This conveyance was before the court when the request for summary judgment was denied in its December 12, 1980 order and it was appropriate for the trial court in its Opinion and order filed January 7, 1983 to consider the uncontested facts of the June 26, 1978 conveyance.

The order of the trial court filed on January 7, 1983 is affirmed insofar as it dismisses the exceptions filed by the Roskwitalskis. That portion of the order filed on January 7, 1983 which dismisses the exceptions of Skultety is reversed. This case is remanded with directions to (1) declare the deed filed June 26, 1980 at Deed Book Volume 5971, at page 109, invalid, (2) order the Recorder of Deeds of Allegheny County to cancel the deed of record, and (3) order the Demmler trustees or, upon their refusal or inability, the Prothonotary to execute and deliver a deed for the subject property to Robert F. Skultety in accordance with the May 7, 1975 sales agreement. Jurisdiction is relinquished.

      . Robert F. Skultety is identified as Robert E. Skultety on the May 7, 1975 Agreement of Sale (R. 11a, 12a). See also Answer, New Matter and Counterclaim of Defendant, Robert E. Skultety filed 12/2/75.


author: HOFFMAN, Judge: MONTEMURO,

text:
    487 A.2d 869
    COMMONWEALTH of Pennsylvania v. Charlene DEVAN, a/k/a Shirley Artis, Appellant.
    Superior Court of Pennsylvania.
    Argued May 23, 1984.
    Filed Jan. 11, 1985.

      Michael P. Gottlieb, Assistant Public Defender, Norris-town, for appellant.
    Joseph Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the trial court erred in denying her motion to suppress certain oral statements and physical evidence because they were obtained in violation of Pa.R. Crim.P. 130 and Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Because we agree that the oral statements should have been suppressed, we reverse and remand for a new trial.

On October 28, 1981, at approximately 3:30 p.m., appellant was arrested while walking along York Road in Abing-ton Township after police received information from security personnel at the Lord and Taylor’s department store that two women had stolen a jacket from the store. Appellant, upon being advised of her Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), told the police that her name was Sylvia Gray and that she was seventeen years old. After an arrest report was completed, she was turned over to the Juvenile Division so that her parents could be contacted. The officers were unable to verify the name given, and at about 5:20 appellant told them her name was Charlene Devan but furnished no identification in support thereof. Following further unsuccessful attempts to verify her name, the officers, at approximately 8:00 p.m., reread appellant her Miranda rights and proceeded to question her. In the course of this conversation, appellant again stated that her name was Charlene Devan and that identification could be found in the glove compartment of an Oldsmobile automobile which the police had impounded. The officers found the glove compartment locked, however, and, after speaking with appellant, they were given a key to the compartment and the trunk. In the glove compartment, the police found a checkbook and various identification, including a driver’s license, in the name of Charlene Devan. They also found an assortment of new clothes from several stores in the trunk, and appellant then made several statements concerning who had purchased those items. At about this time the officers received information from Lord and Taylor’s that appellant had attempted to purchase some merchandise with a check in the name of Charlene Gaither. When confronted with this new information, appellant told the police that this checkbook was hidden at the scene of her arrest. At approximately 9:00 that evening, the officers took appellant back to York Road where the checkbook in the name of Charlene Gaither and the check which they had received information about were found.

Immediately after returning to the police station with appellant, the officers prepared a new complaint which they completed around 11:00 p.m. Sometime between 11:00 and 11:30, the officers attempted to have appellant arraigned,

[b]ut Magistrate Plummer was not to be bothered at night, and Magistrate Peterson was unable to be contacted, so the complaints were left for the Justice of the Peace who came in in the morning, and they were sent down when the office opens at 9:00. He [Magistrate Plummer] called, he had the paperwork completed sometime after that for the arraignment.

(N.T., Suppression Hearing, April 20, 1982 at 30-31). Appellant was finally arraigned the next day, October 29, 1981, “[i]n the area of 12:00 or noon, sometime within, give or take an hour.” (Id. at 30). She was charged with criminal conspiracy, criminal attempt to commit theft by deception, criminal attempt to commit the crime of bad checks, theft by deception, and theft by receiving stolen property.

Appellant’s pre-trial motion to suppress was denied on April 20, 1982. Following trial on April 21-22, appellant was found guilty of the criminal attempt charges. Post-verdict motions were timely filed, argued, and denied. Appellant was then sentenced on January 3, 1983 to a term of imprisonment of one-to-two years for attempted theft and ordered to pay the costs of prosecution on the attempted bad checks offense. This appeal followed.

“[W]hen a defendant has been arrested without a warrant in a court case, a complaint shall be filed against the defendant and the defendant shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay.” Pa.R.Crim.P. 130(a) (emphasis added). To enforce Rule 130 (then Pa.R.Crim.P. 118), our Supreme Court has held that evidence obtained during an unnecessary delay between arrest and preliminary arraignment is inadmissible at trial. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Following Futch, the Court adopted a rule pursuant to its supervisory power under which statements obtained after arrest and before arraignment are inadmissible at trial if the accused is not arraigned within six hours of arrest. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). A delay of two minutes beyond the six-hour period has been held to be a violation of the Davenport rule. Commonwealth v. Bennett, 287 Pa. Superior Ct. 485, 430 A.2d 994 (1981), aff'd per curiam, 498 Pa. 656, 450 A.2d 970 (1982); see also Commonwealth v. Blady, 492 Pa. 285, 424 A.2d 864 (1981) (per curiam; ten minute delay required suppression); cf. Commonwealth v. Robertson, 317 Pa.Superior Ct. 158, 463 A.2d 1133 (1983).

Here, appellant contends that because arraignment did not take place until approximately twenty and one-half hours after her arrest, her oral statements and the physical evidence obtained as a result of such statements should be inadmissible at trial. The Commonwealth, in turn, argues that the delay was excusable because of exigent circumstances, the presence of which constitute an exception to the six-hour rule: “Six hours provides a workable rule which can readily be complied with in the absence of exigent circumstances.” Commonwealth v. Davenport, supra 471 Pa. at 286 n. 7, 370 A.2d at 306 n. 7; see also Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983); Commonwealth v. Keasley, 501 Pa. 461, 462 A.2d 216 (1983); Commonwealth v. Jenkins, 500 Pa. 144, 454 A.2d 1004 (1982); Commonwealth v. Williams, 313 Pa.Superior Ct. 243, 459 A.2d 830 (1983); Commonwealth v. Ryles, 274 Pa.Superior Ct. 547, 418 A.2d 542 (1980). In the instant case, the lower court found two such circumstances: appellant’s “obfuscatory tactics” and the unavailability of a magistrate on the night of October 28. (Lower Court Opinion at 2).

We agree with the lower court that part of the delay was due to appellant’s own actions. Not until 5:20 p.m., almost two hours after her arrest at 3:30, did appellant give the police her correct name. While there are no Rule 130 cases holding that a defendant’s conduct can constitute an exigent circumstance, we note that several Pa.R.Crim.P. 1100 “prompt trial” cases hold that a defendant cannot profit from delay which he or she has caused. See, e.g., Commonwealth v. Machi, 294 Pa.Superior Ct. 338, 439 A.2d 1230 (1982); Commonwealth v. Gallo, 276 Pa.Superior Ct. 562, 419 A.2d 601 (1980); cf. Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, cert. denied sub nom., Penn v. Pennsylvania, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982) (no unnecessary delay under Futch, supra, where two hours of administrative processing were caused in part by defendant’s misleading police as to his identity). As one officer testified:

We spend several hours trying to determine who the defendant was and who the other two defendants were, and because of the size of the problem that we had — we don’t have that big of a police department — there was only a couple officers working on it. It took us two hours just to get her to tell us she was Charlene DeVan, and she was only one of three people that we had to go through with the same exact problem about who they were. Several arrest reports had to be made up. And then when they’d tell us that’s not their name, they had to be destroyed and new ones had to be made up. It’s a very time-consuming process. And, in the meantime, we used all the normal police procedures such as the computer, such as the phone book, trying to verify the information that we were receiving. The delay was also caused by the fact that she told us she was a juvenile, and she was turned over to Juvenile, and it took them a little while to decide that she wasn’t, in fact, a juvenile, and returned her back to us. So it was a very time-consuming thing.

(N.T., Suppression Hearing, April 20, 1982 at 27-28). Therefore, we will exclude the delay from 3:30 to 5:20 in determining whether or not the Davenport rule has been violated in this case.

Even excluding these two hours from the six-hour calculation, however, appellant still was not arraigned until over eighteen and one-half hours later. Beginning at 5:20, the Davenport rule would mandate an arraignment no later than 11:20 p.m. Between 11:00 and 11:30, however, the officers attempted to contact a magistrate, but one “was not to be bothered at night,” and another could not be reached. (N.T., Suppression Hearing, April 20, 1982 at 30). The Commonwealth apparently begins the six-hour period at approximately 8:00, rather than at 5:20, because “[i]n light of [appellant’s] previous deception, the police attempt to confirm the information can only be viewed as a prudent exercise of administrative caution.” (Appellee’s Brief at 6). Therefore, under Davenport, an 8:00 starting time would compel that the arraignment be held by 2:00 a.m. But we need not decide whether 5:20 or 8:00 is the correct starting time because of our disposition of the case.

The absence of a judicial officer has been held to be an exigent circumstance. Commonwealth v. Keasley, supra; Commonwealth v. Jenkins, supra; Commonwealth v. Ryles, supra. In Keasley, the defendant was not arraigned until twelve hours after his arrest. Although he was brought before the court for an arraignment well within the six-hour period, the judge scheduled to be on duty was absent because he had accompanied his clerk, who had suffered a heart attack, to the hospital. Then,

[ejfforts by police to secure the presence of the arraignment judge scheduled to be on duty as well as another arraignment judge were unsuccessful, and appellee was not arraigned until 6:25 a.m. that morning, after the judge scheduled to be on duty at 8:00 a.m. came on duty early at police request.

501 Pa. at 463, 462 A.2d at 217. In Jenkins, the police released the defendant five hours after his arrest “[w]hen it became apparent that it would become impossible to find an available judicial officer to arraign [him]____” 500 Pa. at 146, 454 A.2d at 1005. The defendant was then re-arrested the next day and arraigned within two and one-half hours. In Ryles, the defendant was taken for arraignment five hours and fifty-three minutes after his arrest, but “[t]he judge, although assigned for a [sic] eight hour shift which began at 4:00 p.m., was not present. The judge had left the court for supper____” 274 Pa.Superior Ct. at 550, 418 A.2d at 543. As in Jenkins, the police search for the judge was unsuccessful; however, unlike Jenkins, the judge returned shortly thereafter and arraignment began six hours and twenty-five minutes following Ryles’ arrest.

The instant case differs from Keasley, Jenkins, and Ryles. Here, after the unsuccessful attempt to hold the arraignment at about 11:30, appellant was neither released nor arraigned shortly thereafter. Assuming that the absence of a judicial officer between 11:00 and 11:30 constituted an exigent circumstance, we find nothing in the record to suggest that any effort was made to promptly arraign appellant thereafter. We note that our Supreme Court, in Jenkins, stated:

Interestingly, both the suppression court and appellee implicitly concede that if the police had caused appellee to remain in custody, even beyond the six hour limit, while they were attempting to secure a judicial officer the case would probably have fallen within the exigent circumstances dispensation. We agree with this conclusion assuming the Commonwealth’s ability to establish its diligent effort in seeking a timely arraignment.

500 Pa. at 151, 454 A.2d at 1007 (emphasis added). Here, appellant remained in custody from 11:30 p.m. until 12 noon the following day. Nowhere in the record is there any showing that the police officers attempted to have appellant arraigned after their initially unsuccessful try. Cf. Com monwealth v. Keasley, supra 501 Pa. at 463, 462 A.2d at 217 (“On this record, the Commonwealth has shown that the police diligently sought to locate an arraignment judge and to secure appellee’s prompt arraignment both before and after it became apparent that the six-hour limit could not be met.”). Nor is the three-hour delay on the morning of October 29 explained; although the complaints “were sent down when the office open[ed] at 9:00,” N.T., Suppression Hearing, April 20, 1982 at 30-31, appellant was not arraigned until sometime “[i]n the area of 12:00 or noon____” Id. at 30. We believe that the officers, knowing appellant's arrest to have taken place at around 3:30 the previous day, should have made every effort to expedite her appearance before a magistrate. Because we hold that this delay was inexcusable in light of the purposes that Davenport was designed to serve, we are constrained to find a violation of the six-hour rule.

The “unnecessary delay” rule and the six-hour rule were “adopted not simply to guard against the coercive influence of custodial interrogation, but to ensure that the rights to which an accused is entitled at preliminary arraignment are afforded without unnecessary delay.” Commonwealth v. Davenport, supra 471 Pa. at 284, 287-88, 370 A.2d at 305-06. The purposes served by prompt arraignment are fourfold:

to protect the accused’s right to know “the nature and cause of the accusation against him,” Pa.Const. art. I, § 9, his right to counsel, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); U.S. Const. Amends. VI, XIV; Pa.Const. art. I, § 9, and his right to reasonable bail. Pa.Const. art. I, § 14. It also protects the accused’s right to be free from unreasonable seizure of his person. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); U.S.Const. amends. IV, XIV; Pa.Const. art. I, § 8.

Id., 471 Pa. at 283, 370 A.2d at 304 (emphasis added); see also Pa.R.Crim.P. 140(a) (preliminary arraignment requirements).

Therefore, because appellant’s right “to receive an immediate and reasonable opportunity to regain [her] freedom by the posting of bail,” Commonwealth v. Jenkins, supra 500 Pa. at 148, 454 A.2d at 1006, citing Commonwealth v. McGeachy, 487 Pa. 25, 28, 407 A.2d 1300, 1301 (1979), was denied, appellant’s statements between the time of her arrest and arraignment must be suppressed. As our Supreme Court stated in Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973): “The danger of any such unnecessary and unconstitutional restriction of liberty diminishes significantly when a citizen is brought before a neutral judicial authority, there to be informed of the charges and provided with an immediate and reasonable opportunity to regain his liberty by the posting of a reasonable bail.” Id., 454 Pa. at 446, 311 A.2d at 614 (emphasis in original).

Having determined that appellant’s oral statements must be suppressed, we must next determine whether physical evidence obtained as a result thereof must also be suppressed. In Commonwealth v. Rhem, 283 Pa.Superior Ct. 565, 424 A.2d 1345 (1980), we held that the Davenport rule does not apply to physical evidence. In Rhem, however, the defendant was searched; the search was not a result of any statements he made. Therefore, we believe instead that the instant case is controlled by the “fruit of the poisonous tree” doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In such a case, we ask “ ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Id. at 488, 83 S.Ct. at 417, citing Maguire, Evidence of Guilt, 221 (1959).

[W]here the prosecution can establish that the challenged evidence would have come to its attention from an independent source free of taint, there is not the type of exploitation of the illegality that requires the imposition of the rule of exclusion. Restated, where the evidence obtained as the result of illegal police activity would have been discovered in the course of a lawfully conducted investigation, no purpose is served in applying the exclusionary rule.

Commonwealth v. Brown, 470 Pa. 274, 284, 368 A.2d 626, 631 (1976). Because this case is being remanded, then, the trial court will have the opportunity to determine whether or not the evidence seized as a result of appellant’s statements would have been found independently in the course of a lawfully conducted police investigation. If so, the evidence will be admissible. See Commonwealth v. Jones, 271 Pa.Superior Ct. 528, 536, 414 A.2d 379, 383 (1979).

Judgment of sentence is reversed and case is remanded for a new trial.

Reversed and remanded. Jurisdiction is not retained.

MONTEMURO, J., files a concurring opinion.

DEL SOLE, J., concurs in the result.

MONTEMURO,

Judge, concurring:

While I agree with the result reached by the majority, I write separately to express my disagreement with the majority's reliance on Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). (See Maj. Opinion at p. 104).

Although the six-hour rule enunciated in Davenport may not have been given a formal burial, the notice of its death was set forth in Commonwealth v. Blady, 492 Pa. 285, 424 A.2d 864 (1980) (Mr. Justice Larsen, dissenting opinion, joined by Mr. Justice Flaherty), rearg. denied, February 18, 1982; Commonwealth v. Bennett, 498 Pa. 656, 450 A.2d 970 (1982) (Mr. Justice Flaherty, concurring opinion, joined by Mr. Justice Hutchinson; Mr. Justice McDermott, concurring opinion); and Commonwealth v. Jenkins, 500 Pa. 144, 454 A.2d 1004 (1982) (Mr. Justice McDermott, concurring opinion).

In Commonwealth v. Blady, supra, the supreme court by Per Curiam Order affirmed the trial court’s suppression of a confession where the defendant was arraigned six hours and ten minutes after his arrest. I note that in Blady, three of the four Justices who made up the majority are no longer on the court.

Mr. Justice Larsen in his dissenting opinion, which was joined by Mr. Justice Flaherty, wrote as follows:

Unlike the majority, I am not satisfied with the jurisprudential soundness of the Davenport approach; this approach is the quintessential illustration of mechanical jurisprudence.¹ While the rote application of the Davenport formula does achieve its desired result of ease of application and avoidance of troublesome complexities, a clock-watching ritual should not be substituted for scrutiny of the record, analysis of the evidence and flexible application of standards of review designed to accommodate conflicting interests. The goals of efficiency and ease of administration are laudable ones indeed, and I do not discount their importance. However, these goals should not be exalted at the expense of justice. (Footnote omitted).
Given the time of arrest — 5:20 p.m. — and the time of arraignment — shortly after 11:30 p.m. — the period of delay between arrest and arraignment was approximately six hours and ten minutes. For the sake of ten minutes, the majority affirms the suppression of a confession given only three hours after the arrest (at 8:40 p.m.). I dissent. This Court should throw away the stopwatch and pick up the scales of justice.

Id., 492 Pa. at 285-287, 424 A.2d at 864-65.

In Commonwealth v. Bennett, supra, the supreme court affirmed an order of this court, Commonwealth v. Bennett, 287 Pa.Super. 485, 430 A.2d 994 (1981), wherein we held that a statement obtained from an accused in violation of the six-hour rule and therefore inadmissible in the Commonwealth’s case-in-chief, may nevertheless be used to impeach the accused’s trial testimony.

The trial court in Bennett awarded the defendant a new trial for the reason that defendant’s voluntary statement should have been suppressed where he was arraigned six hours and two minutes after his arrest. The defendant also argued in his post trial motions, and the trial court agreed, that he had been prejudiced by the trial court’s initial refusal to suppress his statement because his decision not to testify had been based on his fear that the Commonwealth would use the statement to impeach his credibility. The trial court concluded that statements inadmissible under Davenport could not be used to impeach the defendant’s trial testimony.

Justice Flaherty, in a concurring opinion, in which Justice Hutchinson concurred, wrote:

Our constitutions guarantee every individual the right to know the nature and cause of the accusations against him and the right to be free from any unnecessary abridgement of his liberty. To insure these rights, our rules require that an individual who is arrested be afforded a preliminary arraignment before a judicial officer without unnecessary delay. See Pa.R.Crim.P. 122, 123, 130, 140. This Court adopted a prophylactic rule: Absent exigent circumstances, if the accused is not arraigned within six hours of arrest, any statement obtained after arrest but before arraignment is inadmissible at trial. Commonwealth v. Davenport, supra. Notwithstanding the goals of per se rules — motivation of law enforcement officials to conduct criminal investigations fairly, responsibly and, in cases such as the instant one, promptly and ease of judicial administration — “stop watch justice” exacts a considerable toll on society when one who is actually guilty of the crimes charged escapes conviction and punishment for his guilty conduct because of what is termed in lay parlance, a “technicality”. These goals, though laudable, “should not be exalted at the expense of justice.” Commonwealth v. Blady, 492 Pa. 285, 286, 424 A.2d 864 (1980) (Mr. Justice Larsen, dissenting).
Due to the inherent inexactitude of human experience, it is not surprising that an accused should assert inadmissibility of a statement due to a mere two minute delay in the arraignment procedure. Such a delay is certainly properly characterized as de minimis non-compliance with Davenport. Instantly, however, the trial court rejected the Commonwealth’s suggestion it should overlook such a de minimis infraction. In my view, in application of the ancient maxim “Lex non curat de minimis,” Hob. 88, a delay of more than six hours should not per se render any pre-arraignment statement inadmissible; rather, I would place on the Commonwealth the burden of proving that the delay was not unnecessary when the delay between arrest and arraignment exceeds six hours. “A clock-watching ritual should not be substituted for scrutiny of the record, analysis of the evidence and flexible application of standards of review designed to acco-modate conflicting interests.” Commonwealth v. Blady, supra. (Mr. Justice Larsen, dissenting).

Id., 498 Pa. at 657-658, 450 A.2d at 971.

In a separate concurring opinion, Mr. Justice McDermott with characteristic cogency, denounced the six-hour rule as follows:

By a “per curiam affirmance,” we are overlooking an opportunity to clarify some very disturbing issues.
By affirming the opinion of the Superior Court, we are reasserting the iron rule of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), a rule that would suppress an otherwise constitutionally-obtained statement, because the police were two minutes late in bringing a defendant before a court.
By affirming the Superior Court, we are narrowing the application of Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975) and affirming that statements obtained in violation of Davenport may be used to impeach a defendant who offers his testimony at trial. We should go further and ourselves say that the iron six-hour rule of Davenport has created more mischief than it ever cured, and that, in fact, it cannot even cure the mischief to which it was addressed. The Davenport rule had shielded the guilty for no reason relevant to the individual circumstances of their cases. A prophylactic rule, such as the six-hour rule, is a classic of technicality. Classic because it applies to all circumstances, no matter what distinctions of justice may inhere in the facts of a given case. It answers a drum sounding on a different field. We have invoked the rule to prevent one form of illegality, an illegality that can be monitored without subjecting our judicial system to the sorest criticism, when the guilty go free for no reason except an unnecessary and inapplicable rule.

Id., 498 Pa. at 659-660, 450 A.2d at 972. See also concurring opinions of Mr. Justice McDermott in Commonwealth v. Jenkins, supra; and Commonwealth v. Keasley, 501 Pa. 461, 462 A.2d 216 (1983).

Clearly, Justices Larsen, Flaherty, McDermott and Hutchinson have all denounced the six-hour rule as a per se rule of exclusion. What is not so clear is what they might all agree would be a satisfactory and just alternative.

I favor the approach taken by Justices Flaherty and Hutchinson, i.e., when the delay between arrest and arraignment exceeds six hours, the Commonwealth has the burden of proving that the delay was not unnecessary.

In the case sub judice, I do not believe the Commonwealth met that burden, especially in view of the fact that there was no explanation whatsoever for not arraigning the appellant at 9 a.m. instead of 12 noon.

Thus, I would concur in the result reached by the majority and at the same time acknowledge the not-too-early demise of the infamous six-hour rule.

      . Lord and Taylor personnel had told the investigating officers that a third suspect, a male, had come into the store with the two women, left, and gotten into the Oldsmobile. The car was found abandoned with a jacket, apparently purchased at some other store, lying on the back seat. The male suspect was apprehended in a store adjacent to Lord and Taylor’s.

      . 18 Pa.C.S.A. §§ 901 and 3922.

      . Id. § 4105.

      . Although one of the judges in the instant case was not to be bothered at night, we note this language from Ryles:

      We do not suggest or imply any improper or negligent conduct was involved. But, we assume it for purposes of our ruling in order to point out that, whatever conduct of an individual member of the judiciary may be involved, the direct supervisory authority of our courts of common pleas and of the appellate courts of this Commonwealth provides an adequate vehicle to deter it without resort to suppression on a per se basis.
      274 Pa.Superior Ct. at 552 n. 4, 418 A.2d at 544 n. 4. That is not to say, however, that judicial conduct will never warrant suppression:
      We do not mean to imply that the absence of any effort by the judiciary to afford prompt arraignment will also constitute an exigent circumstance. Many counties have established schedules for district judges to make themselves available and others, as in the case instantly, have established working shifts. If a case arose in which no judicial efforts were made to afford prompt arraignment by shifts, schedules, or the like, the drastic remedy of suppression might indeed be warranted because such would necessarily involve a total disregard of the right to a prompt arraignment and because such would show an abdication by the courts involved of their responsibility to exercise supervision over judicial activity.

        Id., 274 Pa.Superior Ct. at 551-52 n. 3, 418 A.2d at 544 n. 3 (emphasis added). We do not know whether or not the Montgomery County courts have established shifts or schedules for purposes of arraignment. Cf., e.g., Philadelphia Ct. C.P. Rule 550(A) ("Preliminary arraignments shall be held at 12 midnight, 4 a.m., 8 a.m., 12 noon, 4 p.m., and 8 p.m.”). Nonetheless, we need not decide whether the judicial conduct here warrants suppression because we find that the police officers were not diligent in their efforts to promptly arraign appellant.


author: SPAETH, President Judge:

text:
    487 A.2d 877
    In re HANDWRITING EXEMPLAR of Neil CASALE. Appeal of Neil CASALE.
    Superior Court of Pennsylvania.
    Argued March 21, 1984.
    Filed Jan. 16, 1985.

      John P. Campana, Williamsport, for appellant.
    William P. Carlucci, Assistant District Attorney, Wil-liamsport, for appellee.
    Before SPAETH, President Judge, and BECK and TAMI-LIA, JJ.
   SPAETH, President Judge:

This is an appeal from an order compelling appellant to appear at the office of the assistant district attorney and submit a handwriting exemplar. Appellant argues that the trial court had no jurisdiction to enter the order because at the time the order was entered appellant had not been arrested and no charges had been filed against him, and the order was not incident to a grand jury investigation. Cf. Commonwealth v. Polak, 438 Pa. 67, 263 A.2d 354 (1970) (under Act of June 16, 1836, P.L. 784, 17 P.S. § 2079, court had power to issue subpoena only if there was some pre-existing matter or cause pending before the court). In rejecting this argument and holding that it did have jurisdiction to enter the order, the trial court reasoned that the Commonwealth’s motion to compel appellant to submit a handwriting exemplar related to an ongoing police investigation and was supported by a sufficient allegation of probable cause. As appellee the Commonwealth argues that the trial court had jurisdiction to issue the order under Pa.R.Crim.P. 2002(c), which provides that a search warrant may be issued for “property which constitutes evidence of the commission of a criminal offense.” The Commonwealth also argues that the order is interlocutory. We have concluded that the order is interlocutory, and we therefore quash the appeal, without considering its merits.

This court has jurisdiction over appeals taken from “final orders” of the courts of common pleas. 42 Pa.C.S. § 742. Our Supreme Court has long held that an order denying a motion to quash a grand jury subpoena is not a final order from which an appeal may be taken. See Petition of Specter, 455 Pa. 518, 317 A.2d 286 (1974). Rather, the person subpoenaed must either comply with the subpoena or refuse to comply and litigate the validity of the subpoena if contempt proceedings are brought against him. Id. Forcing the person subpoenaed to make this choice is justified by the “necessity for expedition in the administration of the criminal law.” Id. (citation omitted). This is also true of subpoenas issued by an administrative agency. In Pennsylvania Human Relations Comm’n v. Jones & Laughlin Steel Corp., 483 Pa. 35, 394 A.2d 525 (1978), the Court reasoned:

The need for expedition in administrative agency investigations is at least as great as in grand jury investigations. We can perceive of no legitimate legal or policy reason for providing for a different result as to when the matter is ripe for appellate review based solely on the fact that the body issuing the subpoenas is an administrative agency and not an investigating grand jury. We note that in both the Petition of Specter, supra, and in the instant case the right of the body to issue the subpoena was being challenged.

483 Pa. at 37-38, 394 A.2d at 527.

The order here at issue is in the nature of a subpoena, although it is arguably more intrusive than a subpoena. A subpoena compels a person to appear and testify and, perhaps, to bring with him existing evidence in his possession. The order here at issue goes farther in that it compels appellant to appear and, by writing, to create something that may be used as evidence against him. Nevertheless, we can see no reason, and appellant has offered none, for distinguishing as regards its appealability the order here at issue from an order denying a motion to quash a subpoena. Just as a person may choose either to comply with a subpoena or to take the chance that he will be subjected to contempt proceedings, so here, appellant may choose either to comply with the court’s order or to take the chance that he will be subjected to contempt proceedings. If he should choose not to comply with the order and contempt proceedings are not instituted, or if they are instituted but he is not adjudged in contempt, then he will have no basis for an appeal. If he should choose not to comply with the order and contempt proceedings are instituted and he is held in contempt, the order sentencing him for contempt will be a final order that he may appeal. See Commonwealth v. Polak, supra (appellant appealed after being held in contempt for refusing to comply with subpoena duces tecum issued when there was no matter pending before the court); Commonwealth v. Moss, 233 Pa.Super. 541, 334 A.2d 777 (1975) (appellant appealed after being held in contempt for refusing to comply with order requiring her to give handwriting sample). The need for expedition in this case is no less compelling than in a case involving a subpoena to appear before a grand jury or an administrative agency. Cf. State Farm Mutual Automobile Insurance Co. v. Morris, 289 Pa.Super. 137, 432 A.2d 1089 (1981) (order under section 401 of No-Fault Act requiring insured to submit to physical examination is final and appealable when not ancillary to any pending action).

Appellant has another choice, besides submitting to contempt proceedings. An appeal from an interlocutory order may be allowed when the trial court certifies that the order involves “a controlling question of law as to which there is a substantial ground for difference of opinion” and that an appeal “may materially advance the ultimate termination of the matter.” 42 Pa.C.S. § 702(b); Pa.R.A.P. 1301 et seq. If the trial court does so certify the order, then this court may in its discretion permit an appeal. Id. See Carabello Appeal, In re January, 197b Special Grand Jury, 238 Pa.Super. 479, 357 A.2d 628 (1976) (appeal allowed from trial court order denying motion to quash subpoena where trial court certified order). Although the issue raised in this appeal would appear to involve an important and controlling question of law as to which there is a substantial ground for difference of opinion, appellant did not request that the trial court certify the order. Appellant has offered no explanation for his failure to request certification, nor, indeed, any argument to support the view that the order is appealable, despite the fact that the Commonwealth filed a motion to quash the appeal.

Appeal quashed.

      . Pursuant to 42 Pa.C.S. § 5105(c), the Supreme Court has promulgated Pa.R.A.P. 311, which provides for interlocutory appeals as of right from certain orders. The provisions of Pa.R.A.P. 311 do not provide for an appeal as of right in this case.

      . Courts of other jurisdictions have recently been faced with the same issue and have resolved it in different ways. Compare United States v. Holland, 552 F.2d 667 (5th Cir.1977), opinion withdrawn, 565 F.2d 383 (5th Cir.1978) (district court had no jurisdiction to compel appellant to give handwriting exemplar when there was no proceeding or person before court over which court had jurisdiction; appellant had not been arrested or indicted, and there was no grand jury investigation); and Sanchez v. Attorney General, 93 N.M. 210, 598 P.2d 1170 (1979) (state district court had no authority to compel handwriting exemplar when suspect had not been charged with a crime, had not been arrested, and had not been directed to appear before an investigative agency pursuant to statutory authority), with State v. Mitchell, 226 Kan. 776, 602 P.2d 1383 (1979) (state district court did not err in denying defendant’s motion to suppress handwriting exemplars where although there was no statutory basis for pre-arrest court order directing suspect to produce exemplars, affidavits established probable cause for arrest; if defendant had been arrested and then exemplar order entered, would be no question of its validity and therefore defendant suffered no prejudice from irregular procedure); Special Prosecutor v. G.W., 95 Misc.2d 298, 407 N.Y.S.2d 112 (1978) (court’s inherent jurisdictional power, both at common law and under statute, warrant an order compelling handwriting exemplar when firmly based on probable cause). Several states have resolved the issue by statute or rule of court. See 5A Ariz.Rev.Stat. § 13-3905 (temporary detention to obtain evidence of identifying physical characteristics); Colorado Rule Crim.Pro. § 41.1 (non-testimonial identification orders); 4 Idaho Code § 19-625 (temporary detention to obtain evidence of identifying physical characteristics); N.C.Gen.Stat. § 15A-271 et seq. (non-testimonial identification orders).


author: HOFFMAN, Judge:

text:
    487 A.2d 880
    COMMONWEALTH of Pennsylvania v. Peter B. McCUE, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1983.
    Filed Jan. 16, 1985.
    Petition for Allowance of Appeal Denied July 25, 1985.

      Bernard V. O’Hare, Jr., Bethlehem, for appellant.
    Richard R. Tomsho, Deputy District Attorney, Allentown, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant challenges (1) the sufficiency of the evidence to support his conviction for sexual abuse of children, (2) the display of and references to certain pornographic material in the jury’s presence, (3) the trial court’s refusal to permit defense counsel to question a Commonwealth witness regarding the circumstances under which she left her employment, (4) several jury instructions, and (5) his sentencing. We find these contentions meritless and, accordingly, affirm the judgment of sentence.

Appellant was arrested on October 23, 1979, and subsequently charged with five counts of criminal solicitation, one count of sexual abuse of children, and one count of possession of a prohibited offensive weapon. On May 30, 1980, following a hearing, appellant’s petition to suppress evidence was denied. Approximately two weeks later, a jury trial commenced, at the conclusion of which appellant was found guilty of four Counts of criminal solicitation, one count of sexual abuse of children, and one count of possession of a prohibited offensive weapon. Appellant’s post-verdict motions were timely filed and denied. On March 8, 1982, appellant was sentenced to serve a term of nine months-to-three years imprisonment, and ordered to pay the costs of prosecution and $325.00 in fines. This appeal followed.

Appellant challenges first the sufficiency of the evidence supporting his conviction for sexual abuse of children.

The test for sufficiency of the evidence is whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982); see Commonwealth v. Ransome, 485 Pa. 490, 493, 402 A.2d 1379, 1381 (1979), and Commonwealth v. Miller; 303 Pa.Superior Ct. 504, 507, 450 A.2d 40, 41 (1982).

18 Pa.C.S.A. § 6312(c) defines sexual abuse of children as follows:

Dissemination of photographs and films. — Any person who sells, displays for sale or transfer, or who possesses for the purpose of sale, display for sale or transfer, any book, magazine, pamphlet, slide, photograph or film depicting a child under the age of 16 years engaging in a prohibited sexual act or in the simulation of such act is guilty of a felony of the third degree.

So viewed, the facts are as follows: In September, 1979, while a guest at the Holiday Inn West in Allentown, Pennsylvania, appellant became acquainted with a desk clerk named Janice Steckel. At the time, Ms. Steckel was a divorcee who lived with her eight-year old daughter, Melanie. On the evening of September 12, 1979, appellant and Ms. Steckel met for drinks at a local cocktail lounge known as the Village Inn. Later that evening, appellant, Steckel, and Melanie went to a restaurant for dinner. After dinner, all three returned to Steckel’s apartment where appellant stated that he was a photographer and “that he was interested in making a movie star out of [Melanie].” (N.T. July 15, 1980 at 35). Appellant further announced that Steckel herself could make a lot of money if [she] let him take pictures of [Melanie].” (Id.) Steckel testified that, at the time, she believed appellant to be an ordinary children’s photographer. Nevertheless, Steckel was unsure of appellant’s proposition and requested time to think about it. The next morning, appellant approached Steckel at the Holiday Inn and showed her what appeared to be a Polaroid photograph of an eight-year-old girl, naked from the waist up, standing in a motel room.

Approximately one month later, on October 15, 1979, appellant and Steckel again met for drinks at the Village Inn. Upon returning to Steckel’s apartment, appellant removed from the trunk of his car a booklet containing about 24 photographs. These photographs, which appellant displayed to Steckel, depicted nude children under the age of sixteen engaged in various sexual acts. Appellant informed Steckel that these were the type of pictures that he planned to take of her daughter. Additionally, appellant offered Steckel money if she would leave him alone in her apartment with her daughter, and asked Steckel to allow him to perform oral intercourse on her daughter. Steckel refused appellant’s requests and asked appellant to leave, which he did. The following day, Steckel told a co-worker about her contacts with appellant and the co-worker, in turn, notified the police. By pre-arrangement with the police, Steckel met with appellant at the Village Inn on the night of October 23, 1979. Also present at this meeting was Pennsylvania State Trooper Patricia Moe, posing as a friend of Steckel’s in financial trouble, who might allow appellant to photograph her ten-year-old daughter. Appellant questioned Moe about her daughter’s sex life and asked if he might see her daughter that night. Moe replied that appellant would not be able to see her daughter until the next morning. Thereafter, appellant offered Moe $50.00 for a photograph of her daughter in the nude, and $150.00 for a photograph showing both Moe and Steckel’s daughters together in the nude. Appellant also offered Moe $100.00 if she and her daughter would spend the night with him in his motel room. Appellant further told Moe that he worked for “Piermont Pictures,” a company specializing in photographing children. In reality, no such company exists. Rather, it is a fictitious organization used by appellant for the purpose of convincing people that he “could make a star [sic] out of them.” (N.T. July 16, 1980 at 403). Appellant subsequently gave Moe the keys to his car so that she could retrieve “Piermont Pictures” application forms, which appellant said were located in a black folder in the trunk of his car. Upon finding the folder in question, Moe discovered that it contained adult pornographic magazines. Later, as the parties were leaving the Village Inn, appellant was arrested. At the time of his arrest, appellant was carrying the black folder containing the pornographic material.

Acting pursuant to two search warrants, the police conducted a search of appellant’s automobile and his room at the Holiday Inn. In the trunk of appellant’s car the police found adult and child pornographic films and magazines, a movie projector and screen, and “Piermont Pictures” paraphernalia; the search of appellant’s motel room uncovered a set of brass knuckles.

Appellant acknowledges both his possession of the child pornography and the fact that he displayed it to others. (Brief for Appellant at 39). However, he argues that there was no evidence adduced at trial demonstrating that he ever transferred or intended to transfer this pornographic material. While deliberating, the jury propounded a question to the trial judge concerning the statutory construction of the word “transfer,” as that term is used in § 6312(c). The lower court referred to Webster’s Dictionary and stated:

The definition of transfer is given in Webster’s Dictionary as — to convey, carry, remove or send from one person, place or position to another. Now, clearly, the statute does not envision somebody carrying or removing something or just transporting it. I think the word “transfer” is used in the statute to transfer possession of it from one person to another person.

(N.T. July 18, 1980 at 730) (emphasis added). We believe the trial court correctly interpreted “transfer” within the context of § 6312(c), as meaning a change of possession from one person to another. We also agree with the lower court that “the legislature did not intend to include purely personal use of the material within its perview [sic], but it did intend to include all other interpersonal use.” (Lower Court Opinion at 20). Thus, noncommercial trading or exchange of the material in question would also fall within the coverage of the statute.

Applying that definition to the instant case, we find that there was sufficient circumstantial evidence presented to show that appellant transferred or intended to transfer the child pornography in his possession. Janice Steckel testified that appellant wanted to take photographs of her daughter so that he could make her a movie star. (N.T. July 15, 1980 at 35, 109). In order to demonstrate the kinds of photographs he would take of her daughter, appellant showed Ms. Steckel a looseleaf booklet containing photographs of nude children engaged in various sexual acts. {Id. at 39-40). Pennsylvania State Trooper Patricia Moe, working undercover on the case, testified that appellant told her that he worked for “Piermont Pictures” and had applications for her to fill out. {Id. at 171-74). Trooper Moe also testified that appellant gave her a business card which read “Hollywood, New York, Las Vegas engagements, Pier-mont Pictures television and films, casting and bookings” and told her that the pictures he took would be sent to Europe:

Q. In his discussions with you about his business at Piermont Pictures, did he [appellant] tell you where the stills or the films would be distributed?
A. [Trooper Moe] Yes, he said all of the pictures of American children that are taken here are sent to Europe, so that I wouldn’t have to worry about being embarrassed by possibly anyone that I knew or any family members seeing pictures of my daughter. And that conversely, all of the pictures that are taken in Europe are sent here.

{Id. at 181). Trooper Moe also gave her opinion that the photographs appellant would take of her fictitious daughter were to be obscene photographs “[o]f the type that would constitute a violation of the Pennsylvania statute prohibiting sexual abuse of children[.]” {Id. at 185-86). Police Detective Edward Hartman testified that he found in the trunk of appellant’s automobile numerous envelopes and stationery with “Piermont Pictures” on the letterhead, job applications and business cards for “Piermont Pictures,” a movie projector and screen, and various child and adult pornographic films and magazines. (N.T. July 16, 1980 at 232-36, 246-62, 302). Some of the magazines were European publications. {Id. at 253, 261). Two of the envelopes were marked with return addresses for companies in California and Maryland and contained informational brochures advertising sexual paraphernalia and order blanks. (Id. at 278-80). Thus, considering all of the Commonwealth’s evidence, including the above-mentioned, and all reasonable inferences therefrom, we believe that there was sufficient evidence to show that appellant possessed and displayed child pornographic materials in order to transfer possession of them to others. Accordingly, we hold that appellant’s conviction for sexual abuse of children was supported by the evidence.

Appellant also contends that he was deprived of a fair trial when the lower court permitted the jury to view a portion of a film depicting child pornography and hear police testimony regarding certain adult pornography found in appellant’s possession. He argues that such evidence was inflammatory and prejudicial. “The decision of whether to admit testimony under particular circumstances is within the discretion of the trial judge and will not be reversed absent an abuse of discretion.” Commonwealth v. Pilosky, 239 Pa.Superior Ct. 233, 239, 362 A.2d 253, 256 (1976); see Commonwealth v. Miller, supra. “In exercising this discretion the court should counterbalance the probative weight of the evidence against the danger that the jury may be unduly aroused by the facts offered into evidence.” Commonwealth v. Honeycutt, 227 Pa.Superior Ct. 265, 270, 323 A.2d 775, 778 (1974). Here, we find that the evidence in question was properly presented to the jury and consisted of only a small portion of the evidence found in appellant’s possession at the time of his arrest. Therefore, we believe that, even if the testimony regarding the adult pornography was irrelevant, the effect of such evidence on the jury would have been de minimis. Additionally, prior to the introduction of the evidence, the trial court gave the following cautionary instruction:

Members of the jury, what you are about to see is most unpleasant, and perhaps to some of you quite shocking. I think it is important to understand why you are looking at it. It is not being introduced to inflame you or appeal to your passion or anything of that nature.
There are, however, certain factual issues which the Commonwealth must prove. They are offering these exhibits as being representative of all the exhibits in this case in support of their burden by the Commonwealth.
Unfortunately, it is part of your responsibility to view it so that you are able to more accurately determine whether the Commonwealth has met its burden or not.

(N.T. July 15, 1980 at 288). See also N.T. July 17, 1980 at 670, 672. Thus, we find that the lower court did not abuse its discretion in allowing this relevant evidence to be displayed to the jury.

Appellant next asserts that the trial court erred in refusing to permit defense counsel to inquire into the circumstances under which Janice Steckel left her employment at the Holiday Inn, when Steckel’s credibility was at issue. We disagree. It is well settled that the scope of cross examination is within the sound discretion of the trial court. Commonwealth v. Sisco, 484 Pa. 85, 398 A.2d 955 (1979); Commonwealth v. Bailey, 450 Pa. 201, 299 A.2d 298 (1973); see also Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978). Here, appellant’s offer of proof revealed an attempt to show that Steckel had been released from her job for improper fraternization with hotel guests and that Steckel’s testimony in this regard contradicted that of appellant. We find such a method of attacking credibility improper and irrelevant. See Commonwealth v. Gaddy, 468 Pa. 303, 311, 362 A.2d 217, 220 (1976) (“Evidence of prior misconduct unrelated to the issues at trial is admissible only insofar as it bears directly on the witness’ ‘character for truth.’ ”); Commonwealth v. Truitt, 369 Pa. 72, 80, 85 A.2d 425, 429 (1951) (“A witness cannot be contradicted on collateral matters to test credibility^]”); Commonwealth v. McGuire, 302 Pa.Superior Ct. 226, 232, 448 A.2d 609, 612 (1982) (credibility of witness may not be attacked by questions regarding instances of misconduct unrelated to the issue on trial); Herr v. Erb, 163 Pa.Superior Ct. 430, 434-45, 62 A.2d 75, 77-78 (1948) (witness can be contradicted only on matters germane to issue at trial; no contradiction shall be permitted on collateral matters). Cf. Commonwealth v. Bighum, 452 Pa. 554, 556, 307 A.2d 255, 257 (1973) , and McIntosh v. Pittsburgh Railways Co., 432 Pa. 123, 125, 247 A.2d 467, 468 (1968) (prior convictions used to impeach credibility are limited to crimes involving dishonesty or false statements). Therefore, the lower court did not abuse its discretion in limiting the cross-examination.

Appellant also alleges error in the trial court’s instructions to the jury that (1) the defendant has the burden of proving his innocence by a preponderance of the evidence on the possession of a prohibited offensive weapon charge, (2) possession of a prohibited offensive weapon is defensible only when the weapon is possessed as a curio, (3) the defendant could be convicted on the basis of circumstantial evidence alone when none of this evidence arose above the level of conjecture, and (4) portions of the argument of counsel were designed to appeal to the jury’s emotions. “In a multitude of decisions, this Court has ruled that in evaluating the correctness of instructions to a trial jury, the charge must be read and considered as a whole, and it is the general effect of the charge that controls.” Commonwealth v. Rodgers, 459 Pa. 129, 132, 327 A.2d 118, 120 (1974) ; see also Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983). Here, with respect to possible defenses to the prohibited weapons charge, the trial court charged the following:

Now, the statute provides it is a defense to the charge of prohibited offensive weapons when the Defendant possessed or dealt with a weapon solely as a curio. Curio means a thing of curiosity — some memento, or something you came into possession of and you tack it up on the game room wall — something like that — simply as a matter of curiosity. The Defendant has the burden of proving this defense by a preponderance of the evidence.
Let me strike that. Let me read that to you again: It is a defense to a charge of a prohibited offensive weapons crime that the Defendant possessed or dealt with a weapon solely as a curio or under circumstances negating any intent or likelihood that the weapon would be used unlawfully. The Defendant has the burden of proving this defense by a preponderance of the evidence. Thus, even though you may believe that the Defendant otherwise committed the crime charged, you must not find him guilty if you are satisfied by a preponderance of the evidence that the Defendant possessed the brass knuckles merely as a curio or under circumstances negating any intent or likelihood that the weapon would be used unlawfully.
In summary, if you are satisfied that the two elements of this offensive weapon crime have been proven beyond a reasonable doubt — in other words, the brass knuckles being an offensive weapon and being in the possession of the Defendant, and that the defense which I described has not been proven by a preponderance of the evidence— you should find the Defendant guilty. Otherwise, you must find the Defendant not guilty.

(N.T. July 17, 1980 at 690-91). See 18 Pa.C.S.A. § 908 (prohibited offensive weapons offense). After reviewing the record, we find that this charge was proper. See 18 Pa.C.S.A. § 908(b) (defendant has to prove by the preponderance of the evidence the “curio” and “circumstances negating any unlawful intent” defenses to the prohibited offensive weapons charge); Commonwealth v. Walton, 252 Pa.Superior Ct. 54, 58-60, 380 A.2d 1278, 1279-80 (1977) (en banc) (in prosecution for possession of an offensive weapon, burden of proving possession of a sword cane as a curio within the statutory exception was upon the defendant); Commonwealth v. McFarland, 252 Pa.Superior Ct. 523, 529-34, 382 A.2d 465, 468-71 (1977) (en banc ) (prohibited offensive weapons statute was not rendered unconstitutional because of provision which placed burden on the defendant to prove by the preponderance of the evidence one of the enumerated defenses contained therein). Additionally, contrary to appellant’s assertion, we note that the trial court did charge on both the “curio” and the “circumstances similarly negating any intent” defenses provided for in § 908(b).

With regard to the role of circumstantial evidence in determining guilt, the trial court instructed the jury that:

Circumstantial evidence alone may be sufficient to prove a Defendant’s guilt. If there are several separate pieces of circumstantial evidence, it is not necessary that each piece standing separately convice you of the Defendant’s guilt beyond a reasonable doubt. Instead, you may find the Defendant guilty on the basis of the pieces of circumstantial evidence, when considered together, that they must reasonably and naturally lead to the conclusion that the Defendant is guilty, and must convince you of the Defendant’s guilt beyond a reasonable doubt. In other-words, you may find the Defendant guilty based on circumstantial evidence alone, but only if the total amount and quality of the evidence convinces you of the Defendant’s guilt beyond a reasonable doubt.

(N.T. July 17, 1980 at 680-81). This charge is correct under our caselaw. See Commonwealth v. Sullivan, 472 Pa. 129, 149-50, 371 A.2d 468, 477-78 (1977); Commonwealth v. Emmi, 290 Pa.Superior Ct. 86, 93, 434 A.2d 142, 145 (1981); Commonwealth v. Hunter, 234 Pa.Superior Ct. 267, 270, 338 A.2d 623, 624 (1975).

We also find that the trial court’s cautionary instruction to the jury to decide the case on its merits rather than on an emotional basis did not constitute prejudicial error. The court stated:

Now, frankly, I would say also to you, with respect to the summations of counsel, that some of the arguments presented were designed to appeal to your emotion. You should not decide this case on an emotional basis, but rather on your reason and judgment as justified by the evidence.

(N.T. July 17, 1980 at 672). See Commonwealth v. Phillips, 183 Pa.Superior Ct. 377, 382, 132 A.2d 733, 736 (1957) (new trial required only when the trial judge’s remark is so prejudicial as to deprive the defendant of a fair and impartial trial).

Finally, appellant contends that the lower court abused its discretion in failing to consider all of the evidence presented at the sentencing hearing, namely, certain letters, reports, witness testimony, a pre-sentence statement and the fact that appellant had no prior convictions. This contention is controverted by the record, which reveals that the court adequately considered all relevant factors under the Sentencing Code in sentencing appellant. See N.T. March 8,1982 at 4-47; 42 Pa.C.S.A. § 9721(b) (sentencing criteria); cf. Commonwealth v. Wilson, 306 Pa.Superior Ct. 372, 376, 452 A.2d 772, 774 (1982) (sentencing court need not expressly refer to the guidelines if it is clear that it considered the Sentencing Code factors). Therefore, we cannot say that the lower court abused its sentencing discretion. Commonwealth v. Burtner, 307 Pa.Superior Ct. 230, 232, 453 A.2d 10, 11 (1982) (imposition of sentence lies within the sole discretion of the sentencing judge).

Accordingly, we affirm the judgment of sentence.

Affirmed.

       "Of the thirty-seven (37) magazines, two (2) books, five (5) brochures and twenty-four (24) films admitted into evidence at trial, only four (4) magazines and fifteen (15) to thirty (30) seconds of one film was displayed to the jury in the jury box.” (Lower Court Opinion at 16 n. *).