author: HESTER, Judge.

text:
    678 A.2d 815
    Jonathan HULL, Jr. v. HANNAHSTOWN MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 30, 1996.
    Filed June 26, 1996.

      Stephen P. McCloskey, Washington, DC, for appellant.
    Nancy D. Vernon, Uniontown, for appellee.
    Before POPOVICH, EAKIN and HESTER, JJ.
   HESTER, Judge.

This action arose after appellant, Hannahstown Mutual Insurance Company, refused to cover a March 3,1991 house fire, under a homeowner’s insurance policy issued to appellee, Jonathan Hull, Jr. Coverage was denied based upon appellant’s determination that the fire was started intentionally by appellee. We are constrained to reverse and remand for a new trial.

Appellee instituted this action against appellant seeking to recover under the homeowner’s insurance policy, and the case proceeded to jury trial. Appellee, the first witness, testified as follows. Appellee purchased the house in question, located on MeClellandtown-Edenborn Road in Adah, Fayette County, in July, 1990, and he began to reside in it. His wife, from whom he has been separated for twelve to fourteen years, lived approximately two miles from the house. Appellee purchased the house for $14,500, and the previous owner accepted a private mortgage in the amount of $11,000 from appellee. Appellee owed $1,700 on the mortgage at the time of the fire.

After appellee purchased the. home, he and one of his children made renovations to the property. Prior to the fire, appellee secured homeowner’s insurance from appellant in the amount of $30,000, more than twice the purchase price. After appellee “put new siding on the home and new paneling” and new carpeting, he reinsured the house for $69,000. Notes of Testimony, 10/17/94, at 20. After the fire, appellee signed a proof of loss, in which he made a sworn declaration that the amount of loss he sustained for the house and contents was $83,289, and he claimed that he placed in the house $14,000 in personal property between August, 1990, when he purchased it, and March, 1991, when it burned. Thus, the remainder of the claim was based on appellant’s position that the $14,500 house he purchased six months prior to the fire was worth $69,289 because he had paneled four rooms, put siding on the outside, and carpeted the interior of the home. However, appellee was not able to recall at trial the cost of the new carpet, paneling, and siding which resulted in his house increasing in value by $54,789.

The fire, which began at approximately midnight, occurred while appellee was in Ohio visiting a friend. Appellee testified that he locked the house securely before going to Ohio and that he was the only person with a key to the house.

When the insurance adjuster and a state trooper interviewed appellee following the fire, the first words appellee said to them were “I was out of town. I was in Ohio. Here are my receipts.” Id. at 68. Appellee made these statements before he was informed that anyone was claiming that the fire was arson. Interestingly, the following exchange also occurred at trial:

Q Now, when you remodeled the house after the fire, you told us about the different things that you did and the places you purchased the materials [to remodel the house]. Do you have receipts for those?
A Some I have and some of them got burnt up.
Q How could receipts get burned up?
A They was in Catherine’s [appellee’s wife] house when her house burnt last March.
Q So Catherine’s house burned too?
A Yes—
[APPELLEE’S COUNSEL]: Objection, Your Honor, on relevance.
THE COURT: We will overrule the objection because he’s the one that said [it].

Id. at 69-70.

John Felio testified first for the defense. He was driving past the house on March 3, 1991, at approximately midnight. He saw smoke coming from the house and told his girlfriend and son, who were passengers in the truck he was driving, to summon the fire department. Mr. Felio approached the house and opened the front door “[relatively easy.” Id. at 93. He stopped trying to enter the house when nobody answered his calls.

Edenborn Volunteer Fire Chief Charles J. Kormanik testified that approximately sixty firefighters responded to the fire. Chief Kormanik asked State Trooper Dennis Smith, who is the state fire marshal for Fayette County, to investigate the fire because the Chief observed an unusual burn pattern in the house and he was not able to determine the cause of the fire.

Trooper Smith, stipulated to be an expert in the field of fire investigation, testified as follows. He detected the odor of kerosene upon entering the house, there was an intense fire at the point of origin, and the carpet exhibited pour pattern burns, which indicated that something was poured on the carpeting and ignited. He indicated that “an accelerant of some kind” created the pour burn pattern in appellee’s house. Id. at 106. Laboratory analysis revealed that kerosene was used as the accelerant. Based on his investigation, Trooper Smith concluded that the fire was “not an accidental fire.' It was definitely an arson, a deliberately set fire.” Id. at 110.

When Trooper Smith interviewed appellee, appellee told him that there was “only one key to the house,” that appellee had it, that “[a]ll of the windows and doors were locked” when he left for Ohio, and that the “basement door was padlocked from the outside.” Id. Appellant secured its own fire investigator, Robert G. Stewart, who came to the same conclusions as Trooper Smith about the fire.

Richard Barnett then was called to the stand. Mr. Barnett had given appellant’s agents a sworn statement in which he indicted that at appellee’s request, he and appellee’s son had set the fire in question. Mr. Barnett was not willing to testify at trial. However, Mr. Barnett made it abundantly clear that his unwillingness to testify was not based on the fifth amendment but was related to threats he had received either from appellee or his family. Even though Mr. Barnett indicated that he did not wish to invoke his fifth amendment privilege against self-incrimination and even though he indicated he was aware of that privilege, the court stated that he was not “going to force him to testify when he’s putting himself in jail” and that he would not allow Mr. Barnett to testify. Id. at 153.

Nancy Barnett, Richard’s wife, testified that the night before the fire, appellee brought a kitchen dinette set, two chests of drawers, a stereo, speakers, two statutes, a trunk, and a clock into her residence. When appellee brought the items to her home, he said, “It’s a damn shame. You work for things all your life, like pictures, important papers, sentimental things with sentimental values, to go up in smoke.” Id. at 157. Appellee also said that he needed money that night so he could go to Ohio.

Based on this evidence, the jury awarded appellee $42,000. This appeal followed denial of post-trial motions. Appellant claims that the trial court erred in refusing to allow Mr. Barnett to testify when he indicated that he did not wish to invoke his fifth amendment privilege against self-incrimination. We agree, reverse and remand for a new trial.

The house fire occurred on March 3, 1991; the trial court was concerned that Mr. Barnett faced charges for committing arson because the statute of limitations for arson is five years. The trial court, in its opinion in support of its decision, was under the impression that Mr. Barnett had invoked his fifth amendment 1‘ight to self-incrimination. The trial court opined that since Mr. Barnett did face arson charges, it properly had upheld Mr. Barnett’s invocation of that privilege.

However, our review of the testimony reveals that Mr. Barnett specifically stated that he was aware of his fifth amendment privilege against incrimination but that he did not wish to invoke it. Indeed, in light of his prior sworn statement, he may have waived his right to invoke that privilege. See Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982). Nonetheless, the record establishes that the witness never invoked the privilege. Mr. Barnett was reluctant to testify for reasons completely unrelated to the fifth amendment and which were related to threats from appellee and his family.

The exchange is as follows:

THE COURT: Mr. Barnett, I’m calling you to the stand because I understand that you’re being subpoenaed to testify here and that you’ve given a sworn statement on another occasion. I wanted to find out if you wish to testify today?
THE WITNESS: No, sir, I don’t.
THE COURT: Are you going to invoke a privilege against testifying?
THE WITNESS: I appreciate the Fifth Amendment, yeah.
THE COURT: Do you feel that that might incriminate you, what you’re going to testify to today?
THE WITNESS: No, not so much as incriminate me as to the circumstances involved.
THE COURT: Mr. McCloskey, do you have anything?
MR. McCLOSKEY: Yes, I do.
DIRECT EXAMINATION
BY MR. McCLOSKEY:
Q. Mr. Barnett, if I understand your testimony correctly, you’re not concerned about your Fifth Amendment privilege against self-incrimination. You have another reason for not testifying here today; is that correct?
A. Correct.
Q. And—
THE COURT: That’s not going to work, Mr. McCloskey. If what you’re telling me is true and he has statements to the effect that have been shown me, no matter what he does is going to incriminate him. I know what he said and you know what he said, but that can’t be right and I’m not going to force him to testify under those circumstances.
MR. McCLOSKEY: Your Honor, the only purpose of my asking him questions was to get to his real reason for not wanting to come forward.
THE COURT: His real reason is that he can incriminate himself. I mean I don’t care what he says. Can you not incriminate him?
MR. McCLOSKEY: No, no.
THE COURT: Then what, do you think I’m stupid? I’m going to force him to testify when he’s putting himself in jail? I can’t do that and you shouldn’t put me in that position.
You can step down, Mr. Barnett. We don’t have any more questions.

Id. at 152-53 (emphases added).

While the trial court implies that there was a discussion outside the presence of the jury where Mr. Barnett did invoke his fifth amendment right, we cannot locate that discussion in the transcript. Furthermore, there is no break in the transcript which indicates that such a discussion occurred. What is clear from that transcript is that Mr. Barnett did not want to testify for reasons unrelated to the fifth amendment privilege against self-incrimination. The trial court cut short his testimony because it decided Mr. Barnett faced a risk of criminal prosecution, a risk that Mr. Barnett no longer faces since five years have elapsed since the arson.

Our Supreme Court has held that fifth amendment rights are personal to the individual and may not be asserted by another. Commonwealth v. L.E. Wilson Co., 458 Pa. 470, 328 A.2d 502, 504 n. 2 (1974). As Mr. Barnett did not invoke the privilege and as it is clear that no one is permitted to invoke such a privilege other than the person to whom it applies, the trial court improperly invoked that privilege on behalf of Mr. Barnett. The fact that Mr. Barnett’s proposed testimony, which was that appellee’s son and he burned down the house at appellee’s request, was relevant to appellee’s right to recover, a new trial is required. As we have granted appellant a new trial, we need not address its claim that remittitur was denied improperly.

Judgment reversed. Case remanded for a new trial. Jurisdiction relinquished.


source: Caselaw Access Project

author: DEL SOLE, Judge.

license: Public Domain

text:
    678 A.2d 819
    Alice HAHALYAK, Appellant, v. INTEGRA FINANCIAL CORPORATION as Successor by Merger to Equibank, Appellee.
    Superior Court of Pennsylvania.
    Argued April 9, 1996.
    Filed July 10, 1996.
    Reargument Denied Aug. 6, 1996.

      Michael Hahalyak, Pittsburgh, for appellant.
    John R. O’Keefe, Jr., Pittsburgh, for appellee.
    Before DEL SOLE, POPOVICH and HOFFMAN, JJ.
   DEL SOLE, Judge.

Appellant Alice Hahalyak filed this equity action against Integra Financial Corporation, seeking damages, accounting and injunctive relief. At the same time, Appellant filed a lis pendens. Appellee filed a petition to strike the lis pendens. At the argument on the petition to strike, counsel requested that the motions judge recuse herself. She refused and counsel filed this appeal. Because this appeal is not from a final order, we quash it.

This court ordinarily has jurisdiction only over appeals taken from final orders. 42 Pa.C.S. § 742. A final order is an order which effectively ends the litigation or disposes of the entire case. DiDio v. Philadelphia Asbestos Corp., 434 Pa.Super. 191, 642 A.2d 1088 (1994). As defined in the Rules of Appellate Procedure, a final order disposes of all claims or of all parties. Pa.R.A.P. 341. A final order may also be defined as such by statute or may be made final if an order disposes of fewer than all claims or parties if the trial court makes an express determination of finality. Pa.R.A.P. 341(b), (c). Rules 311 and 313 define those interlocutory orders which are appealable as of right. Such interlocutory orders are orders in criminal cases where the Commonwealth asserts that the order will substantially handicap the prosecution, orders overruling preliminary objections in eminent domain cases, orders remanding a matter to an administrative agency, and collateral orders where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. Pa.R.A.P. 311, 313. The order involved in this appeal does not fit into any of the categories listed above and is therefore neither a final order nor an interlocutory or collateral order that is immediately appealable. See, e.g., Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985) (recusal issue considered on appeal from final judgment in personal injury case). We must therefore quash this appeal.

Appeal quashed.


author: TAMILIA, Judge.

text:
    678 A.2d 1197
    Samuel W. RUMP v. The AETNA CASUALTY AND SURETY COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 14, 1996.
    Filed May 31, 1996.
    Reargument Denied Aug. 5, 1996.

      Michael Saltzburg, Philadelphia, for appellant.
    Before MeEWEN, P.J., and TAMILIA and BROSKY, JJ.
   TAMILIA, Judge.

Aetna Casualty and Surety Company (Aetna) appeals from the interlocutory Order of May 24, 1995 granting appellee’s motion for partial summary judgment and declaring coverage in favor of appellee in this automobile insurance dispute. By Per Curiam Order dated August 23, 1995, we granted permission to appeal due to the “controlling question of law to which there is substantial ground for difference of opinion” at issue in this case. 42 Pa.C.S. § 702(b). Briefly stated, the facts of this case are as follows.

Appellee is the designated insured under an automobile insurance policy written by appellant. The policy indicates that appellee selected the “limited tort” option pursuant to section 1705 of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et seq. Under section 1705, the limited tort designation permits recovery for non-economic loss (i.e., pain and suffering) only when one suffers a “serious injury.” On April 18, 1991, appellee was involved in a motor vehicle accident which, for purposes of this action only, the parties stipulate was caused by Friedun Younossi, an uninsured motorist whose vehicle was registered in the state of Minnesota. Following the accident, appellee filed a claim for uninsured motorist benefits against appellant. Aetna denied the claim on the basis that appellee, as a limited tort claimant, had not suffered a “serious injury”. Appellee agrees that he did not suffer a “serious injury” within the meaning of section 1705.

This appeal requires us to determine the proper construction of section 1705(d)(1), which provides as follows:

§ 1705. Election of tort options

(d) Limited tort alternative.-
(1) An individual otherwise bound by the limited tort election who sustains damages in a motor vehicle accident as the consequence of the fault of another person may recover damages as if the individual damaged had elected the full tort alternative whenever the person at fault:
(i) is convicted or accepts Accelerated Rehabilitative Disposition (ARD) for driving under the influence of alcohol or a controlled substance in that accident;
(ii) is operating a motor vehicle registered in another state;
(iii) intends to injure himself or another person, provided that an individual does not intentionally injure himself or another person merely because his act or failure to act is intentional or done with his realization that it creates a grave risk of causing injury or the act or omission causing the injury is for the purpose of averting bodily harm to himself or another person; or
(iv) has not maintained financial responsibility as required by this chapter, provided that nothing in this paragraph shall affect the limitation of section 1731(d)(2) (relating to availability, scope and amount of coverage).

To summarize, section 1705(d)(1) provides that limited tort individuals may recover as if they were full tort (i.e., they may recover for non-economic harm) when another driver causes the accident and that driver is (i) drunk, (ii) driving an out-of-state vehicle, (iii) an intentional tortfeasor, or (iv) uninsured. Appellee claims he is entitled to collect uninsured motorist benefits for non-economic harm as if he had elected the full tort alternative, under subparagraph (ii), since the person stipulated to be at fault, Mr. Younossi, was “operating a motor vehicle registered in another state[.]” On the other hand, Aetna argues the exception contained in subparagraph (iv), “provided that nothing in this paragraph shall affect the limitation of 1731(d)(2)”, applies to the entirety of paragraph (1). Section 1731(d)(2) provides:

§ 1731. Availability, scope and amount of coverage
(d) Limitation on recovery.-
(2) A person precluded from maintaining an action for noneconomic damages under section 1705 (relating to election of tort options) may not recover from uninsured motorist coverage or underinsured motorist coverage for noneconomic damages.

Thus, according to appellant, since section 1731(d)(2) precludes those who have selected the limited tort option from recovering uninsured motorist benefits for non-economic damages, appellee may not recover such damages under any subparagraph of section 1705(d)(1), including (ii).

Hence, the issue in this case, apparently one of first impression'in our Commonwealth, is whether the “provided that” exception in subparagraph (iv) applies only to that subparagraph or the whole of section 1705(d)(1). If, as Aetna claims, the exception applies to all of section 1705(d)(1), appellee is precluded from maintaining his action for uninsured motorist benefits for non-economic harm under (ii). On the other hand, if the exception applies only to (iv), as appellee claims and as found by the trial court, appellee’s action under (ii) is not barred. Despite its novel nature, we find the issue to be governed by fundamental principles of statutory construction and analogous case law.

In Commonwealth v. McIvor, 448 Pa.Super. 98, 670 A.2d 697 (1996), an en banc panel of our Court considered the proper construction of 18 Pa.C.S. § 5704(2), which provides as follows:

§ 5704. Exceptions to prohibition of interception and disclosure of communications

It shall not be unlawful under this chapter for:

(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities where:

(i) such officer or person is a party to the communication; or
(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in uniting by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom.

18 Pa.C.S. § 5704(2)(i) and (ii) [emphasis added].

The question before the Court wras whether the emphasized clause contained in section 5704(2)(ii) ápplied only to provision (ii) or to all of (2). To resolve this question, the panel turned to 101 Pa.Code § 23.26.

§ 23.26. Internal divisions of sections.

Whenever internal divisions are necessary, subsections shall be identified by lower case letters, paragraphs by Arabic numerals, subparagraphs by lower case Roman numerals, clauses by capital letters and subclauses by capital Roman numerals, all contained within parentheses, as follows:

Illustrative
Terminology Symbol
Subsection (a)
Paragraph (1)
Subparagraph (i)
Clause (A)
Subclause (I)

Id. Accordingly, the Mclvor Court concluded:

Clearly, then, in section 5704, the approval and supervisory requirements contained in subparagraph (2)(ii) apply to all of paragraph (2), including subparagraph (2)(i).

McIvor, supra at 116, 670 A.2d at 706 (emphasis in original).

Having reviewed the legislative history of section 1705 and finding it silent as to the proper scope of the limitation in subparagraph (iv), we are bound to apply the principles of McIvor and 101 Pa.Code § 23.26 to the case sub judice. Based on these principles, we find it is clear that provision (1) of section 1705(d) is a paragraph since it is illustrated by an Arabic numeral and (iv) is a subparagraph because it is illustrated by a lower case Roman numeral. Since the exception in subparagraph (iv) expressly states that “nothing in this paragraph shall affect the limitations of section 1731(d)(2)” (emphasis added), it necessarily applies to all of paragraph (1). Therefore, we hold that a limited tort designee may not collect uninsured or underinsured motorist benefits for non-economic harm under any subparagraph of paragraph (1). It is for the legislature, not the courts, to alter this construction.

Based on the foregoing analysis of 75 Pa.C.S. § 1705(d)(1), we find the “provided that” clause of subparagraph (iv) applies to the entirety of paragraph (1). Hence, we reverse the May 24, 1995 Order granting appellee’s motion for partial summary judgment and declaring that appellee is entitled to recover uninsured motorist benefits for non-economic harm pursuant to section 1705(d)(l)(ii). The case is remanded for proceedings consistent with this Opinion.

Reversed and remanded.

Jurisdiction relinquished.

      . Appellee has not filed an appellate brief, relying instead on his Memorandum of Law in Support of Motion for Summary Judgment.

      . See also 1 Pa.C.S. § 301(c), which provides as follows: ■
      § 301. Arrangement
      (c) Sections of this act are identified by Arabic numerals beginning with each title. Chapters shall consist of no more than ninety-nine sections. The last two digits in the section numbers shall indicate the sequence of sections within a chapter, and the digit or digits preceding such digits shall indicate the number of the chapter. A section of this act is subdivided into subsections, paragraphs, subparagraphs and such other minor subdivisions as may be required for clarity of expression and uniformity of style.


author: POPOVICH, Judge. EAKIN, Judge,

text:
    678 A.2d 1200
    COMMONWEALTH of Pennsylvania, Appellee, v. Samuel C. STRINGER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1996.
    Filed June 4, 1996.

      Arthur S. Cohen, Hollidaysburg, for appellant.
    Mark S. Smith, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.
    Before POPOVICH, SAYLOR and EAKIN, JJ.
   POPOVICH, Judge.

This is an appeal from the judgment of sentence entered on August 2, 1994 in the Court of Common Pleas of Centre County following appellant’s conviction of Driving Under the Influence, 75 Pa.C.S.A. § 3731(a)(1). Appellant presents the following three issues for review: Whether the Horizontal Gaze Nystagmus test is admissible in a driving under the influence prosecution; whether the existence of medical treatment to passengers in another vehicle was relevant and admissible; and whether the Horizontal Gaze Nystagmus test as administered by the arresting officer deprived appellant of his right to cross examine the witness effectively. Upon review, we find that the trial court incorrectly admitted expert testimony on the Horizontal Gaze Nystagmus test, and, thus, we need not address appellant’s remaining two issues. Accordingly, we reverse the judgment of sentence and remand for a new trial.

On April 2,1993, at approximately 11:11 p.m., appellant was involved in a two vehicle collision along West College Avenue in State College, Pennsylvania. Officer Robert W. Glenny, Jr. of the Ferguson Township Police Department arrived on the scene of the accident. Appellant told Officer Glenny that he was the operator of one of the vehicles in the accident, and he complained to the officer of pain in his knee. Upon detecting a strong odor of alcohol on appellant’s breath, Officer Glenny requested that appellant submit to a Horizontal Gaze Nystagmus test (HGN test). Appellant failed the test and was placed under arrest for Driving Under the Influence without performing any other field sobriety tests. Appellant was thereafter transported to Centre Community Hospital and advised of the Implied Consent Law. Appellant refused to submit to a blood alcohol content test.

Appellant’s principal argument on this appeal is that the trial court erred in allowing the expert testimony of Dr. Reynolds Sisson, an optometrist, who explained and advocated the HGN test. The HGN test “relates to the detection of an involuntary jerking of the eyes, which [is] accentuated by the introduction of alcohol or other central nervous system depressants into the body.” Commonwealth v. Moore, 430 Pa.Super. 575, 582, 635 A.2d 625, 628 (1993). The test is administered as follows:

In the HGN test the driver is asked to cover one eye and focus the other on an object (usually a pen) held by the officer at the driver’s eye level. As the officer moves the object gradually out of the driver’s field of vision toward his ear, he watches the driver’s eyeball to detect involuntary jerking. The test is repeated with the other eye. By observing (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point, the officer can estimate whether the driver’s blood alcohol content (BAC) exceeds the legal limit of .10 percent.

Commonwealth v. Miller, 367 Pa.Super. 359, 365, 532 A.2d 1186, 1188-89 (1987) (quoting State v. Superior Court, 149 Ariz. 269, 271, 718 P.2d 171, 173 (1986)).

HGN test results have been deemed scientific evidence based on the scientific principle that alcohol consumption causes nystagmus. Miller, supra, 532 A.2d at 1189. Therefore, an adequate foundation must be presented prior to admission of HGN test results. Id.; Commonwealth v. McGinnis, 511 Pa. 520, 524, 515 A.2d 847, 849 (1986). Our Supreme Court has defined what constitutes an adequate foundation as follows:

Admissibility of the evidence depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs[.] ‘Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 1014 (1923) (emphasis supplied).

Miller, supra, 532 A.2d at 1188 (quoting Commonwealth v. Topa, 471 Pa. 223, 231, 369 A.2d 1277, 1281 (1977)).

The standard of admissibility set forth in Topa was further defined to require that the expert witness’ testimony be based on more than mere personal beliefs or the views of a small segment of the relevant scientific community. Commonwealth v. Apollo, 412 Pa.Super. 453, 459-61, 603 A.2d 1023, 1027 (1992). Rather, the testimony must establish that the scientific procedure “has gained general acceptance in the scientific community as a whole due to its reliability, as evidenced by published scientific studies.” Id. (quoting Commonwealth v. Middleton, 379 Pa.Super. 502, 512, 550 A.2d 561, 566 (1988)).

Our Supreme Court has not yet determined the admissibility of HGN test results in criminal proceedings. However, on three occasions, this court has refused to allow the admission of HGN results without first establishing an adequate foundation. In Miller, supra, 367 Pa.Super. 359, 532 A.2d 1186, this court held that the testimony of a police officer, whose only expertise in the area was a two-day course on the proper use of the HGN test, was not sufficient to establish the scientific principle involved and its general acceptance in the scientific community. Although the officer’s testimony failed to establish an adequate foundation, the court found its admission to be harmless error in light of the abundant testimonial evidence against the appellant. Id., 532 A.2d at 1190.

In Moore, supra, 430 Pa.Super. 575, 635 A.2d 625, a county detective, certified as an instructor in the HGN test, testified that the principles upon which the HGN test is based are generally accepted in the optometric and police science communities. This court reversed the trial court’s admission of the detective’s testimony stating that, under the present state of the law, the detective “did not provide an adequate basis for finding that HGN testing had gained general acceptance in the scientific community, particularly in the field of medical science represented by ophthalmology.” Id., 635 A.2d at 629.

Most significant to the present case is this court’s decision in Apollo, supra, 412 Pa.Super. 453, 603 A.2d 1023. The Commonwealth presented the testimony of an optometrist named Dr. Reynolds Sisson, the expert who testified in the present case, to establish the foundation for the HGN test. In Apollo, Dr. Sisson testified that he was certified as an instructor on standardized field sobriety and has testified several times as an expert on the HGN test. Id., 603 A.2d at 1027. Dr.,Sisson explained that his own study on the reliability of the HGN test revealed that one out of five-hundred sober individuals failed the HGN test, whereas, national studies have estimated a two to four percent failure rate. Id. Dr. Sisson further testified that he was aware of no studies which contradict the finding that the HGN test is the most accurate field sobriety test available. Id. This court concluded that Dr. Sisson’s testimony was “largely based on his own personal views and observations”, and, thus, insufficient to establish the general acceptance of the HGN test in the scientific community. Apollo, supra, 603 A.2d at 1027-28.

It is within the sound discretion of the trial court to admit or exclude evidence and such a ruling will not be disturbed absent a clear abuse thereof. Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Apollo, supra, 603 A.2d at 1027. In the present case, Dr. Sisson’s testimony was nearly identical to that presented in Apollo with no additional foundation testimony. As stated in Moore, until our Supreme Court addresses this issue, Pennsylvania law requires that an adequate foundation be set forth establishing that HGN testing is generally accepted in the scientific community, including the medical science field of ophthalmology.

The testimony given by Dr. Sisson in this case added no further foundation than his testimony in Apollo. Therefore, we too must hold that the trial court erred in admitting the HGN test results and Dr. Sisson’s testimony. Furthermore, unlike Miller, the trial court’s error was not harmless since no other field sobriety tests were administered, and appellant refused to submit to a blood alcohol content test. Accordingly, we reverse the judgment of sentence and remand this case for a new trial consistent with this opinion.

Reversed and remanded; jurisdiction relinquished.

EAKIN, J., files a concurring opinion.

EAKIN, Judge,

concurring.

While I concur in the result, I disagree that Dr. Sisson’s testimony failed to establish an adequate basis to admit evidence of nystagmus and its accentuation by alcohol. I believe it is important to differentiate Dr. Sisson’s proper testimony about the causal relationship between alcohol consumption and nystagmus from his testimony about the “HGN test,” which is inadmissible under existing caselaw. (Commonwealth v. Apollo, 412 Pa.Super. 453, 603 A.2d 1023 (1992)).

That consumption of alcohol causes nystagmus is no longer a question in the scientific community. That other factors may also induce nystagmus should not affect the admissibility of nystagmus testimony; factors other than alcohol may cause slurred speech or a staggered gait, but these resulting conditions are admissible beyond question. Not everyone who stumbles is intoxicated. Not every intoxicated person stumbles. Does this mean stumbling cannot be admitted to show intoxication? Clearly not — it is admissible, subject to explanation or refutation. The same should be true for nystagmus evidence.

The difference is that nystagmus evidence must come from an expert who can relate alcohol consumption to the tell-tale involuntary jerking of the eyes. It is proper testimony, despite some gap in scientific acceptance of cause and effect, to address the general public’s lack of familiarity with nystagmus. After all, the average person may be familiar with the most obvious signs of intoxication; they are hard to miss. Who, however, has watched an intoxicated person’s eyes’ ability to move smoothly as they follow an object passed in front of them? The fact that the average person may not detect nystagmus does not mean it does not exist — it just means the average person does not connect alcohol to the jerking movement of an individual’s eyes. Science can and does, and the connection is not so tenuous as to make all evidence of nystagmus inadmissible.

In the instant case, however, Dr. Sisson testified beyond the mere relationship between alcohol and nystagmus. He testified on “scoring” the driver’, and inferred a connection between scoring and a blood alcohol level. This connection is not subject to agreement within the scientific community, and it is this portion of Dr. Sisson’s testimony that is objectionable. Had Dr. Sisson confined his testimony to the relationship between alcohol consumption and nystagmus, I believe his testimony would have been proper and admissible.


author: POPOVICH, Judge.

text:
    678 A.2d 1203
    COMMONWEALTH of Pennsylvania, Appellee, v. Darryl KEEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 1, 1996.
    Filed June 25, 1996.

      Steven R. Tabano, Pittsburgh, for appellant.
    Robert A. Willig, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before POPOVICH, EAKIN and HESTER, JJ.
   POPOVICH, Judge.

This is an appeal from the order of the Court of Common Pleas of Allegheny County entered on February 28, 1995, denying appellant’s Post-Conviction Relief Act Petition. Appellant was charged with two counts of Homicide, three counts of Aggravated Assault and two counts of Conspiracy arising out of a single incident. Additionally, appellant was charged with one count of receiving stolen property and one count each of possession of a controlled substance, possession of drug paraphernalia and possession with the intent to deliver.

In exchange for appellant’s agreement to testify against his co-defendant, the Commonwealth agreed to nol pros the homicide charges and one conspiracy charge. Appellant then entered a general guilty plea to the remaining charges for which the Commonwealth agreed not to seek mandatory sentences. The trial court sentenced appellant to an aggregate term of eighteen to sixty years imprisonment. On this appeal, appellant contends that the trial court erred in not fully informing him of the maximum sentence which he could receive from pleading guilty. Upon review, we find that appellant was sufficiently informed of the maximum sentence.

Our standard for reviewing the post-conviction court’s denial of appellant’s petition for relief is “limited to determining whether the court’s findings were supported by the record and the court’s order is otherwise free of legal error. The findings of the post-conviction court will not be disturbed unless they have no support in the record.” Commonwealth v. Granberry, 434 Pa.Super. 524, 530, 644 A.2d 204, 207 (1994) (citations omitted).

Appellant herein presents the following two issues which will be addressed in one discussion: did the trial court err in not informing appellant of the maximum sentence which could be imposed; and, did the trial court err in not informing appellant that the sentences could be imposed consecutively. Recently, the Pennsylvania Supreme Court decided two cases presenting similar issues. In Commonwealth v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992), prior to the defendant’s guilty plea, the trial court informed the defendant of the permissible range of sentence for each offense, but failed to inform him that the sentences could be imposed consecutively. In response, the Supreme Court reversed and remanded the case for trial stating that

[t]o hold that the term “maximum” does not include the total possible aggregate sentence is clearly incorrect. And to hold that a plea was intelligently and understanding^ entered where a defendant was not informed that consecutive sentences could be imposed upon his multiple convictions is equally incorrect.

Id., 615 A.2d at 1308.

Subsequently, the Supreme Court clarified its holding in Persinger in the case of Commonwealth v. Carter, 540 Pa. 135, 656 A.2d 463 (1995). In Carter, the defendant admitted being informed of the maximum sentence of each crime. However, he argued that his plea was invalid because he was not informed that each individual sentence could be imposed consecutively. The Court explained that it reversed Persinger because the defendant was not advised of the maximum total he could have been sentenced to consecutively, and the court then sentenced the defendant to the maximum consecutive total. Carter, supra, 656 A.2d at 466. The Court in Carter distinguished its facts from those presented in Persinger by noting that the defendant in Carter “was not sentenced to a term of imprisonment that exceeded his expectations of imprisonment so as to make his plea involuntary or unknowing.” Id. at 466. In fact, the defendant in Carter was sentenced to a total prison sentence which was less than the maximum permissible sentence for one of the four counts of burglary.

In the present case, appellant completed an extensive written guilty plea affirming that he understood the permissible range of sentence which could be imposed. During the guilty plea colloquy, the trial court informed appellant that he could receive a maximum of ten years imprisonment for possession with intent to deliver and one year each for possession of a controlled substance and possession of drug paraphernalia. Guilty Plea Hearing Transcript, 12/14/92, pp. 4-5. With regard to appellant’s three counts of aggravated assault, the trial court informed appellant that he could face a maximum sentence of twenty years for each count. Id. at 5. Appellant was then told that he could receive a maximum of ten years imprisonment for the conspiracy count and a maximum of five years for the receiving stolen property count. Id. at 5-6.

Following a recitation of the facts, the Commonwealth’s attorney asked appellant “[a]nd you further understand that as to each of the criminal informations, the judge could impose a sentence on each count that would run consecutive with one another. In other words, she could sentence you separately on each offense to which you pled guilty?” Guilty Plea Hearing Transcript, 12/14/92, p. 12. Appellant responded that he understood the meaning of consecutive sentences and that he was entering his plea because he was guilty.

Upon review, we find that appellant was informed sufficiently of the maximum sentence which could have been imposed. Although the trial court did not state the total maximum consecutive sentence, it clearly stated the maximum sentence for each count individually and appellant was told that they could be imposed consecutively. We also find that the Commonwealth’s attorney adequately defined consecutive sentences. Furthermore, appellant was sentenced to an aggregate term of eighteen to sixty years imprisonment, whereas, the maximum consecutive sentence which could have been imposed for one count of aggravated assault was twenty years imprisonment. Therefore, as in Carter, we do not find that appellant was sentenced to a term of imprisonment that exceeded his expectations of imprisonment so as to make his plea involuntary or unknowing.

Order affirmed.


author: KELLY, Judge:

text:
    678 A.2d 1206
    COMMONWEALTH OF PENNSYLVANIA v. June SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued March 13, 1996.
    Filed July 1, 1996.

      L. Roy Zipris, Asst. Public Defender, Philadelphia, for appellant.
    Jonathan Levy, Asst. Dist. Atty., Philadelphia, for Com.
    Before BECK, KELLY and OLSZEWSKI, JJ.
   KELLY, Judge:

In this appeal we are asked to determine whether appellant who was previously sentenced to serve a probationary sentence for her conviction of simple assault, with the trial court imposing no further penalty for her possession of an instrument of crime conviction, may upon violation of her probationary sentence for her simple assault conviction be resentenced to serve four years probation for her possession of an instrument of crime conviction. We hold that the trial court violated appellant’s double jeopardy rights by resentencing her to serve a four year probationary sentence for her possession of an instrument of crime conviction after it had previously imposed a sentence of no further penalty for this crime. Thus, we reverse the judgment of sentence imposed for appellant’s possession of an instrument of crime conviction.

The relevant facts and procedural history of this appeal are as follows. On September 12, 1994, appellant entered into an open guilty plea on the charges of simple assault and possession of an instrument of crime (“PIC”). Appellant was sentenced to two years reporting probation for the simple assault conviction, and received no further imposition of sentence for the PIC conviction.

While on probation, appellant frequently missed appointments with the probation department and was discharged from an outpatient drug/alcohol program due to lack of attendance. Additionally, appellant failed two random urinalysis that showed appellant had been drinking alcohol prior to her office visit.

After a violation of probation hearing was held, the trial court found appellant to be in technical violation of the terms and conditions of her probation. Subsequently, appellant’s probation was revoked and she was sentenced to a new term of incarceration of not less than eleven and half months nor more than twenty-three months for the simple assault conviction, followed by four years consecutive reporting probation for her PIC conviction. Appellant filed a timely notice of appeal on May 8, 1995.

On appeal, appellant raises the following issues for our review:

A. DID THE LOWER COURT ERR, AFTER APPELLANT VIOLATED A PERIOD OF PROBATION THAT HAD BEEN IMPOSED ON ONE BILL, BY IMPOSING A SENTENCE OF PROBATION ON ANOTHER BILL FOR WHICH APPELLANT HAD INITIALLY RECEIVED A SUSPENDED SENTENCE, AND WHICH COULD NOT, THEREFORE, CARRY ANY SUBSEQUENT PERIOD OF SUPERVISION — EITHER PROBATION OR PAROLE?
B. DID THE IMPOSITION OF A NEW SENTENCE ON A BILL FOR WHICH APPELLANT HAD ORIGINALLY RECEIVED A SUSPENDED SENTENCE VIOLATE HER RIGHT NOT TO BE SUBJECT TO DOUBLE JEOPARDY, AS GUARANTEED BY THE UNITED STATES AND PENNSYLVANIA CONSTITUTIONS?

Appellant’s brief at 3.

An inquiry into the validity of a sentence is a question as to the legality of the sentence, a non-waivable matter. Commonwealth v. Anderson, 434 Pa.Super. 309, 643 A.2d 109 (1994); Commonwealth v. Quinlan, 433 Pa.Super. 111, 639 A.2d 1235 (1994). An issue of double jeopardy which involves the illegality of a sentence is also a non-waivable issue. Commonwealth v. Quinlan, supra; Commonwealth v. Staples, 324 Pa.Super. 296, 471 A.2d 847 (1984).

Appellant asserts that the trial court erred when it resentenced her for the PIC conviction, where the court had originally sentenced appellant to two years probation for the simple assault conviction, and imposed no further sentence for the PIC conviction. Thus, appellant argues that the trial court did not have the power to resentence appellant for the PIC conviction. Additionally, appellant maintains that the four-year probationary sentence she received upon resentencing for the PIC conviction violated her right not to be subject to double jeopardy, as guaranteed by the United States and Pennsylvania Constitutions. We agree.

A determination of guilt without further imposition of penalty constitutes a final, appealable order. Commonwealth v. Rubright, 489 Pa. 356, 414 A.2d 106 (1980). A trial court may alter or modify a final order within thirty days after its entry, if no appeal is taken. 42 Pa.C.S.A. § 5505; Commonwealth v. Quinlan supra. Once the thirty-day period for altering or modifying sentence is over, the trial court loses power to alter its orders. Commonwealth v. Dasilva 440 Pa.Super. 291, 655 A.2d 568 (1995); Commonwealth v. Quinlan, supra. Furthermore, a modification of sentence imposed on a criminal defendant which increases his punishment constitutes double jeopardy. Commonwealth v. Coleman, 271 Pa.Super. 581, 414 A.2d 635 (1979); Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971).

Although the trial court acted within its power when it revoked appellant’s probation and resentenced her for the simple assault conviction, the trial court erred when it resentenced appellant for the PIC conviction. First, the trial court had already issued a final sentence for the PIC conviction in the form of a guilt determination without further penalty. The thirty-day period in which it could have altered the sentence expired, and the appellant did not appeal. Therefore, the trial court did not have the power to alter or modify the no-further-penalty sentence it had initially imposed upon appellant. See Commonwealth v. Dasilva, supra; Commonwealth v. Quinlan, supra. Thus, the increased punishment appellant received for her PIC conviction following her resentencing for violating her probation for the simple assault conviction constituted a denial of appellant’s constitutional right not to be subject to double jeopardy. See Commonwealth v. Coleman, supra; Commonwealth v. Silverman, supra.

Based upon the foregoing, we affirm the judgment of sentence imposed for the simple assault conviction, and we reverse the judgment of sentence as to possession of an instrument of crime.

Judgment of sentence for appellant’s possession of an instrument of crime conviction is reversed.

      . 18 Pa.C.S.A. § 2701; 18 Pa.C.S.A. § 906.

      . 42 Pa.C.S.A. § 9723.

      . U.S. Const. Amend. V; PA. Const., Art. I, § 10.


text:
    678 A.2d 1208
    COMMONWEALTH OF PENNSYLVANIA v. Samuel MONROE, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 27, 1996.
    Filed May 31, 1996.
    Reargument Denied Aug. 8, 1996.

      John W. Packel, Asst. Public Defender, Philadelphia, for Com.
    Peter J. Gardner, Asst. Dist. Atty., Philadelphia, for appellant.
    Before CAVANAUGH, TAMILIA and MONTEMURO, JJ.

       Retired Justice assigned to the Superior Court.

   TAMILIA, Judge.

Samuel Monroe appeals from the February 22, 1995 judgment of sentence imposed following his convictions for theft by unlawful taking, theft by receiving stolen property and conspiracy. On the theft counts, appellant was sentenced to a term of two and one-half (2-1/2) to five (5) years’ imprisonment and on the conspiracy count, appellant was sentenced to a consecutive term of one (1) to two (2) years’ imprisonment.

At the nonjury trial, appellant and the victim offered dramatically different accounts of the events underlying this case. Our resolution of the issue presented requires a lengthy review of these differing accounts:

On March 25, 1994 at approximately 11:45 a.m. the complainant, Merari Rodriquez entered the Gallery Shopping Center, (Gallery) located at Eighth and Market Streets, in the City and County of Philadelphia. As she entered the Gallery, the complainant testified that she was approached by a male, later identified as the defendant, Samuel Monroe. It is Rodriquez’s testimony that as she entered the Gallery, two men and a lady were coming toward her when the defendant grabbed her and put his arms around her shoulder and told her to keep walking, shut up, and act like she was his friend. At this point, she also felt something in her stomach but she did not know what it was. As the complainant and the defendant walked the other male and female walked alongside of them. (N.T. 12/6/94 pp. 19-22).
The complainant stated that as they exited the Gallery they walked down Market Street toward 7th Street because the defendant asked for her MAC card and told her that they were going to her bank, which was the Mellon Bank. As they walked toward the bank Rodriquez stated that she believed that the defendant had a gun. Upon entering the bank the defendant asked the complainant to enter her pin number. As he stood beside her the other male and female stood in the corner of the lobby of the bank. (N.T. 12/6/94 pp. 23-26).
Rodriquez testified that when the defendant asked for the pin number she told him that all she had was $50.00. Initially, she entered the wrong pin number because she did not want to give the defendant the $50.00. She subsequently entered the correct pin number. After giving the defendant the money they left the bank and then went to a nearby McDonald’s restaurant. The complainant testified that she followed the defendant to McDonald’s because she believed that he had a gun. (N.T. 12/6/94 pp. 26-29).
After entering the McDonald’s they sat at a table when the defendant again asked for her MAC card. At his request, the complainant gave the defendant her MAC card. The defendant also asked the complainant for additional money she had on her person and the gold chain she was wearing. She testified she gave Monroe $40.00 that she had in her pocket but refused to give him her gold chain. At this point she saw what she believed to be the handle of the defendant’s gun, as he reached inside his clothing. (N.T. 12/6/94 pp. 30-34).
Afterwards, the defendant and his friends stood up, the defendant handed the complainant a dollar bill and told her to get herself a soda. As the complainant complied with the defendant’s demand, the defendant and his friends left the restaurant. Subsequently, Rodriquez also left the McDonald’s and went to her job (which was just two blocks away) spoke with the bank manager and stated, she had just got robbed and mugged. The police were then called. (N.T. 12/6/94 pp. 34-35). She met with Detective Arnaldo Puenti.
Conversely, the defendant asserts that the complainant was not robbed or mugged. Instead, Monroe contends that he did approach the complainant as she entered the Gallery. However, when he approached Rodriquez he handed her a small note which read, “African Housing Church of Praises, Reverend John Doe, pay advance $200.00.” The defendant testified that the purpose of the note was to scam the complainant. He explained that he told Rodriquez in an [Ajfrican dialect that he was from Johannesburg, South Africa, lost and had met a black male at the bus station and paid him $200 in advance to show him a place stay [sic]. As he walked around, however, he could not find any assistance. (N.T. 12/6/94 pp. 79-81).
After explaining his predicament the defendant sought the complainant’s assistance. She agreed to assist the defendant. The defendant asserts that he picked the complainant because she looked gullible and wore her MAC card around her neck. The complainant indicated that she. had never heard of the place for which Monroe was looking. As they stood discussing how to acquire some help, the defendant suggested that the complainant ask a Black male and female who were walking past. The couple stated that they did not know where this place was either. According to the defendant, these two people were friends of his and part of the scam.
Suddenly, Monroe pulled out what appeared to be a large sum of money. This was actually U.S. Currency wrapped around newspaper. The couple exclaimed to him to put the money away, as did Rodriquez. The defendant then offered to pay Rodriquez and the couple $50.00 if they would give him five minutes of help. They all agreed to help. (N.T. 12/6/94 pp. 81-83).
The male recommended to the complainant that they take Monroe to the “Mother Bishop Homes,” which is affiliated with the “NAACW,” which helps foreigners coming into this country. They told her the Mother Bishop Homes were located between eighth and ninth on Market Street. An exchange transpired about being able to tell good people from bad people, the importance of having identification, and explaining the process of a banking institution to avoid carrying around such a large sum of money. As Monroe’s male compatriot explained the banking process, Monroe asked to see a bank card, and asked the complainant to show him a bank card. She complied by pulling her card out. After an additional exchange about easing Monroe’s fears of being manipulated, Rodriquez agreed that she would go to her bank and withdraw some money to show that she was honest and to further explain the banking process. As they reached her bank, Monroe said to the complainant, “I do not want you to try to deceive me as the first man did. Can you please take my finger and show me how you do the magical trick?” It’s Monroe’s testimony that the complainant took his fingers and pointed to the numbers. Initially, she placed the wrong number in because she was nervous. She then entered the correct pin number and got $50.00 out of her checking account. (N.T. 12/6/94 pp. 83-88, 99-100).
Monroe testified that he told Rodriquez that she should put her money in her pocketbook and then suggested that they walk to McDonald’s so they could sit down. While at McDonald’s, a discussion ensued about getting Monroe to where he is trying to go and whether he had any luggage. Monroe stated that his green card and immigration papers were at the Greyhound Bus Station, however, he was afraid to return to the bus station by himself for fear of being robbed again. The male then agreed to accompany Monroe back to the bus station. Monroe then agreed to pay Rodriquez $200.00 for sitting down and helping him. (N.T. 12/6/94 pp. 88-90).
Monroe took out a handkerchief, placed his money inside the handkerchief and handed it to Rodriquez. After giving her the money, Monroe asked the complainant to wait for them to return whereupon she stated, “go ahead, do the best you can, I will be here, do not worry about it.” Monroe took a couple of steps then sat back down, expressing his uncomfortability about having her hold his money. He then asked for his money back and for her to place her money ($50.00 that she took out of the bank and the $40.00 in her pocket) side by side with his money. The defendant also asked for her gold chain but Rodriquez indicated she did not wish to give him her chain. Instead, of pressing her for the gold chain, he asked for her MAC card which she also put inside of the handkerchief. He then put his hand inside of his jacket, placed the handkerchief with the money and card inside and came out with an identical handkerchief. However, the other handkerchief was full of newspaper. (N.T. 12/6/94 pp. 90-92).
Monroe then asked Rodriquez to wait there and she agreed. Prior to leaving the McDonald’s he handed the complainant a dollar bill and told her to buy a soda. Meanwhile, he and the couple would go outside[,] get a cab, go to the bus station and come right back. The defendant and the couple left and did not return. Despite what Rodriquez said, Monroe said he had no gun. Allegedly, he acquired an additional $100.00 after the incident as a result of acquiring Rodriquez’s MAC card. [Thus, the theft proceeds totalled $190].

(Slip Op., Gordon, J., 10/10/95, pp. 2-8.)

On appeal, appellant attacks his sentence on the basis that “it was error to grade the theft in this case as a misdemeanor of the first degree where the amount in question was under $200 and there was nothing taken from the person of the complainant.” (Appellant’s brief at 10.)

Appellant was sentenced pursuant to 18 Pa.C.S. § 3903, which provides as follows:

§ 3903. Grading of theft offenses
(a.l) Felony of the third degree. — Except as provided in subsection (a), theft constitutes a felony of the third degree if the amount involved exceeds $2,000, or if the property stolen is a firearm, automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receive is in the business of buying or selling stolen property.
(b) Other grades. — Theft not within subsection (a) or (a.l) of this section, constitutes a misdemeanor of the first degree, except that if the property was not taken from the person or by threat, or in breach of fiduciary obligation, and:
(1) the amount involved was $50 or more but less than $200 the offense constitutes a misdemeanor of the second degree; or
(2) the amount involved was less than $50 the offense constitutes a misdemeanor of the third degree.

Id, § 3903(a.l)(b)(l)(2).

Since neither party disputes that less than $200 was taken from the victim, the question of whether appellant’s crime was a first or second degree misdemeanor turns on whether the money was “taken from the person or by threat____” within the meaning of section 3903(b). If so, the trial court properly graded appellant’s offense as a first degree misdemeanor under section 3903(b). If the victim’s money was not “taken from the person or by threat”, the offense constitutes a second degree misdemeanor under section 3903(b)(1). Appellant argues that under his version of the story, the victim was deceived into voluntarily relinquishing her money. Therefore, since the money was given freely, it was not “taken from the person”. On the other hand, the Commonwealth, relying on the victim’s version, argues that robbery at gunpoint is clearly sufficient to constitute “tak[ing] from the person” and therefore appellant’s offense was properly graded as a first degree misdemeanor.

In support of this argument, the Commonwealth claims we must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict winner. While the Commonwealth’s statement of the law is clearly correct, see e.g., Commonwealth v. Parker, 387 Pa.Super. 415, 418-20, 564 A.2d 246, 248 (1989), appeal denied, 526 Pa. 632, 584 A.2d 315 (1990), we reject the Commonwealth’s assertion that this standard requires us to adopt the victim’s version under the facts of this ease.

Specifically, this case presents the unusual situation wherein both versions of the story support appellant’s theft convictions under 18 Pa.C.S. § 3921(a) and § 3925(a), which provide as follows:

§ 3921. Theft by unlawful taking or disposition
(a) Movable property. — A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.
§ 3925. Receiving stolen property
(a) Offense defined. — A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

Despite appellee’s contention that the victim’s account is more favorable to the Commonwealth as verdict winner, we find the versions are equally favorable, under the facts of this case, because both support appellant’s convictions under sections 3921 and 3925. Hence, we must look beyond the usual rule that facts are to be construed in favor of the verdict winner to determine which facts the trial court relied upon in convicting and sentencing appellant. We turn to the trial court Opinion, which provides as follows:

Initially, it can be said that the court adopted the defendant’s version of what occurred on the day in question. Thus, we resolved the credibility issue between Monroe and Rodriquez in Monroe’s favor.

(Slip Op. at 11.) In light of the trial court’s express finding that appellant’s version of the events was more credible, we must determine whether the grading of his crime as a first degree misdemeanor was proper according to this version.

The specific question at issue thus becomes whether appellant’s operation of a “Aim flam” constitutes a “tak[ing] from the person” so as to justify the trial court’s grading of appellant’s offense as a first degree misdemeanor under section 3903(b). While our review indicates that this issue has not been resolved by our decisional law, our consideration of persuasive authority indicates that a theft conducted by operation of a scam does not constitute “tak[ing] from the person”.

Initially, our Court has discussed the purpose sought to be achieved by statutes which increase the penalty for thefts involving property “taken from the person”. Commonwealth v. Williams, 389 Pa.Super. 489, 567 A.2d 709 (1989), involved an appellant’s removal of the victim’s wallet from a tote bag which the victim was carrying. While the theft in Williams did not involve a scam and therefore is of limited aide to our instant analysis, the Court’s discussion of section 3903 is helpful:

Although theft offenses are graded primarily by the value of the property stolen, several types of theft are graded according to the circumstances of the offense irrespective of the value of the property taken. One of these is a theft of property from the person of another. The Comment to section 223.1(2) of the Model Penal Code, from which section 3903 of the Crimes Code was derived, observes that a substantial number of states, including Pennsylvania, “provide for heightened penalties whenever the theft is from a person.” Model Penal Code § 223.1(2), Comment at p. 149 and n. 59. The reason for imposing a higher penalty for such a theft, irrespective of the value of the property taken, is that such a theft involves “special potentialities for physical violence or alarm associated with the taking----” Id. at p. 148.

Id. at 494-95, 567 A.2d at 713. Thus, according to Williams and the Model Penal Code, the increased penalty for thefts from the person contemplated by section 3903 is based upon the “special potentialities for physical violence or alarm associated with the taking.” Id. Instantly, since appellant’s theft, which involved deception and voluntary relinquishment of money by the victim, did not engender “special potentialities for physical violence or alarm”, the higher penalty contemplated by section 3903(b) would appear to be inapplicable. This conclusion is further buttressed by a review of analogous cases from other jurisdictions.

State v. Harrison, 149 N.J.Super. 220, 373 A.2d 680 (1977), involved a scam and conflicting testimony virtually identical to the case sub judice. Following a jury trial, appellant was convicted of larceny from the person under N.J.S.A. 2A:119-1. Appellant appealed to the Superior Court of New Jersey on the basis that the trial court also should have charged the jury on the lesser included offense of simple larceny, N.J.S.A. 2A:119-3, because appellant’s testimony indicated “larceny by trick”, rather than larceny from the person. Id. at 227-29, 373 A.2d at 684. The Superior Court agreed that appellant’s jury should have been charged consistent with his assertion of “larceny by trick”, holding as follows:

[I]f defendant’s story were believed, the facts he admitted would not support a conviction of larceny from the person. Larceny from the person is a taking of property from the person of another or from an area within his immediate custody and control which raises a danger of confrontation and involves an invasion of the victim’s person and privacy....

Id. at 227-29, 373 A.2d at 684. Following its reversal, the Superior Court remanded for a new trial.

Similarly, in People v. Warner, 801 P.2d 1187 (Colo.1990), the appellant illegally obtained $52 from a cashier via a series of “short-change transactions.” Id. at 1191. He subsequently was convicted of theft from the person of another under 18-4-401(5), 8B C.R.S. (1986) and appealed on the basis that his act of short-changing the cashier did not amount to theft from the person of another. Confronting this question of first impression, the Supreme Court of Colorado engaged in a thorough review of its law concerning “theft from the person”. Following this review, the Court held:

We fail to find ... that the “theft from the person” provision, as envisioned by the legislature, covers this theft accomplished by short-change transactions. At no time did [appellant] take money from the cashier’s person while she was not looking. Rather, the cashier was aware that she was handing money to [appellant], and it was only by deception that [appellant] was able to short-change her---[Appellant’s] theft lacked the element of danger associated with invading the person of an unaware or unconscious victim for purposes of stealing something of value. The mere taking of the change from the cashier’s hand itself is insufficient to find [appellant] guilty of theft from the person of another.
We therefore hold that theft from the person of another does not encompass a theft accomplished by a series of short-change transactions.

Id. at 1192.

We find the rationale of Williams, the Model Penal Code (Comment to § 223.1(2)), Harrison and Warner applicable to the instant case. Accordingly, we find the victim’s money was not “taken from [her] person” within the meaning of section 3903 and therefore appellant’s conduct did not involve the “special potentialities for physical violence or alarm associated with [such a] taking----” Model Penal Code, § 223.1(2), Comment at p. 148; see also Williams, supra at 496-97, 567 A.2d at 713. Therefore, appellant’s offense constituted a misdemeanor of the second degree under section 3903(b)(1) and the trial court’s imposition of sentence on a first degree misdemeanor was in error.

Based on the foregoing, we vacate the February 22, 1995 judgment of sentence and remand for resentencing pursuant to 18 Pa.C.S. § 1104(2) (relating to sentencing for second degree misdemeanors).

Judgment of sentence vacated and case remanded.

Jurisdiction relinquished.

CAVANAUGH, J., concurs in the result.

      . 18 Pa.C.S. § 3921.

      . Id., § 3925.

      . Id., § 903.

      . The Commonwealth argues appellant automatically waived this issue by failing to include it in his Statement of Matters Complained of on Appeal filed pursuant to Pa.R.A.P. 1925(b). Appellant concedes he did not include the claim in his section 1925(b) statement. However, under the facts of this case, such a failure does not preclude our review of appellant’s claim and therefore we decline to deem it waived. As we stated in Commonwealth v. Cortes, 442 Pa.Super. 258, 260-62, 659 A.2d 573, 574 (1995):
      To accept the Commonwealth’s argument that failure to include an issue in a 1925(b) statement automatically results in waiver on appeal would be a return to the “double waiver” concept. This we believe is contrary to the policy embodied in Rule 1410 and, therefore, we refuse the Commonwealth’s invitation to breathe new life into "double waiver.” Admittedly, no statement of matters complained of on appeal was filed. However, that does not prevent us from addressing the issues raised by Appellant.... The lack of the 1925(b) statement does not prevent meaningful appellate review. We see no reason to invite a collateral attack claiming ineffectiveness, which 1410 seeks to eliminate, adding another layer of unnecessary judicial activity and delay.

        Id. On this basis, we will address appellant’s claim.

      . "Larceny by trick” is not a crime specifically designated by New Jersey statute. Rather, the court held that it fell under the crime of simple larceny, N.J.S.A. 2A: 119-3. State v. Harrison, 149 N.J.Super. 220, 227-29, 373 A.2d 680, 684 (1977).

      . The Commonwealth also argues, in a footnote, that even if the victim’s money was not taken from her person, appellant is nonetheless chargeable with a first degree misdemeanor because the money was taken ’’in breach of a fiduciary obligation” within the meaning of section 3903(b). (Appellee’s brief at 15, n. 8.) Initially, we are aware of no authority, nor is any offered by the Commonwealth, supporting this novel construction of section 3903. Further, neither version of the facts implies the existence of a fiduciary relationship. Under the victim’s version, which the Commonwealth has urged throughout this appeal, the robbery was conducted at gunpoint. Under appellant’s version, the victim accompanied appellant in order to collect $50, not because she trusted appellant. Hence, we reject the Commonwealth’s argument.


author: HOFFMAN, Judge.

text:
    679 A.2d 232
    COMMONWEALTH of Pennsylvania, Appellant, v. Roxanne Yvonne PLESS.
    Superior Court of Pennsylvania.
    Argued April 11, 1996.
    Filed June 14, 1996.

      Samuel R. Zuck, Asst. Dist. Atty., Mercer, for Com., appellant.
    Raymond H. Bogaty, Grove City, for appellee.
    Before DEL SOLE, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from a September 22, 1995 order granting appellee Roxanne Yvonne Pless’ motion to suppress. Appellant, the Commonwealth of Pennsylvania, raises the following issue for our review:

Did the Suppression Court err in granting [appellee’s] motion to suppress evidence on the basis that the consent to search [appellee’s] vehicle was obtained during an unlawful detention?

Appellant’s Brief at 5.

On December 23, 1994, at approximately 12:50 a.m., State Trooper Richard Houk and his partner, Trooper J.J. Sovic, clocked appellee’s vehicle traveling on Interstate 80 in Mercer County at 75 miles per hour in a 55 mile per hour zone and observed that a rear tail lamp on the vehicle was burned out. Trooper Houk stopped the speeding vehicle, parked behind it, and approached the driver’s side. After Trooper Houk requested appellee’s driver’s license and vehicle registration, he noted that it took appellee longer than what would normally be required to retrieve these papers, and that she held her hands in a peculiar manner when searching her purse for the documents. Trooper Houk then returned to his patrol car and started filling out a warning card for the traffic violations, during which time he noticed appellee squirming a bit in her seat and moving her head from side to side. N.T. 8/9/95 at 16, 20.

After completing the warning card, Trooper Houk returned to appellee and requested she exit the vehicle and walk to its rear so that he could issue her the warning. Trooper Houk gave appellee her license and registration, issued the warning, and told her she was free to leave. However, he then asked appellee if she would answer some questions, to which she responded she would. After Trooper Houk started questioning appellee, Trooper Sovic advised him that there were no problems with the check on her license and registration. Trooper Houk then secured appellee’s permission to search the vehicle and found cocaine. At this point, Trooper Houk arrested appellee and her passenger.

Appellee was subsequently charged with unlawful possession with intent to deliver a controlled substance, unlawful possession of a controlled substance, unlawful possession of drug paraphernalia, and criminal conspiracy. Thereafter, appellee filed a motion to suppress evidence. On September 22, 1995, after a hearing, the trial court granted appellee’s motion to suppress. This timely appeal followed.

The Commonwealth claims that the trial court erred in granting appellee’s motion to suppress, as appellee had consented to a search of the vehicle.

As here, where the Commonwealth appeals the grant of a motion to suppress, we must consider “only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.” Commonwealth v. DeWitt, 530 Pa. 299, 302, 608 A.2d 1030, 1031 (1992). When the evidence supports the suppression court’s factual findings, we may reverse only when the legal conclusions drawn from those facts are erroneous. Commonwealth v. Quiles, 422 Pa.Super. 153, 156, 619 A.2d 291, 292 (1993) (en banc).

A state trooper may stop a motor vehicle if the trooper reasonably believes that a provision of the Motor Vehicle Code is being violated. DeWitt, 530 Pa. at 304, 608 A.2d at 1032. Incident to this stop, the trooper may check the vehicle’s registration and the driver’s license and issue a citation. Commonwealth v. Talley, 430 Pa.Super. 351, 356, 634 A.2d 640, 643 (1993). After producing a valid driver’s license and vehicle registration, the driver must be allowed to proceed without further delay by the police, unless the police have “reasonable grounds to suspect an illegal transaction in drugs or other serious crime.” Commonwealth v. Lopez, 415 Pa.Super. 252, 262, 609 A.2d 177, 182 (1992), allocatur denied, 533 Pa. 598, 617 A.2d 1273 (1992).

In the instant case, Trooper Houk acted lawfully in stopping appellee for speeding and for driving with a burned out tail lamp. However, as appellee was properly issued a warning for the motor vehicle code violations, and as her driver’s license and registration passed a records check, Trooper Houk was required to have reasonable grounds to suspect an illegal transaction in drugs or other serious crime in order to further detain appellee. Lopez, supra. The mere fact that Trooper Houk thought that appellee was hiding something when she retrieved her license from her purse, and the fact he thought appellee’s side to side movements were “furtive” while she sat waiting for him to complete the warning card, was not enough for reasonable grounds to suspect a crime. See Commonwealth v. Parker, 422 Pa.Super. 393, 400, 619 A.2d 735, 738 (1993) (police officer’s knowledge that defendant had been previously arrested for a drug violation, without articulable grounds to suspect the presence of drugs, was insufficient to detain defendant); Lopez, supra (police officer’s intuition does not constitute a reasonable ground to suspect criminal activity is afoot); cf. Commonwealth v. Grosso, 448 Pa.Super. 552, 672 A.2d 792 (1996) (when ticketing police officer was contacted by fellow officer who informed him that appellant was known to carry concealed weapons and use drugs and urged officer to exercise caution, ticketing officer could reasonably conclude appellant was armed and dangerous and thus his detention and questioning of appellant and appellant’s subsequent consent to search vehicle was not the product of an illegal detention).

Accordingly, we agree with the suppression court that Trooper Houk exceeded the lawful scope of a stop for a motor vehicle code violation, and therefore, the continued detention of appellee and the subsequent vehicle search were improper. Moreover, as the detention was improper, appellee’s consent was ineffective to justify the search. Talley, supra; Lopez, supra.

Accordingly, we affirm the suppression court’s grant of appellee’s motion to suppress.

Order affirmed.

      . 35 Pa.C.S. § 780-113(a)(30).

      . 35 Pa.C.S. § 780-113(a)( 16).

      . 35 Pa.C.S. § 780-113(a)(32).

      . 18 Pa.C.S. § 903.

      . The Commonwealth may appeal from a trial court’s order suppressing evidence when it certifies in good faith that the suppression order will terminate or substantially handicap its prosecution of the case. See Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985). As the Commonwealth has fulfilled this requirement, this appeal is properly before this Court.


author: BECK, Judge.

text:
    679 A.2d 234
    Linda L. MORRISSEY v. Kirk E. MORRISSEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 29, 1996.
    Filed June 21, 1996.
    Wiley P. Parker, Lebanon, for appellant.
    Joseph M. Hill, Jr., Lebanon, for appellee.
    Before BECK, HUDOCK and BROSKY, JJ.
   BECK, Judge.

The issue is whether under the Revised Uniform Reciprocal Enforcement of Support Act (“RURESA”) an action for arrearages under a registered foreign child support order is barred or limited by the relevant statute of limitations or by laches. The trial court held that the action was not barred and directed compliance with the order for the total amount of arrearages. We reverse and remand.

Appellant Kirk E. Morrissey (“Father”) and appellee Linda L. Morrissey (“Mother”) were divorced by a Texas decree on December 19, 1985. In that same order, Father was directed to pay Mother $200.00 monthly for the support of their children. Father subsequently moved to Lebanon County, Pennsylvania.

Mother filed the 1985 Texas support order in Lebanon County, and the order was registered on May 2, 1995. According to the record, Mother claimed that Father had failed to make any payments under the support order, and thus owed arrearages in excess of $22,000.00. Father filed timely exceptions to the registration claiming, inter alia, that Mother’s action was barred at least in part by laches or the four year statute of limitations relating to enforcement of judgments. 42 Pa.C.S. § 5525(5).

The court held a hearing during which Father testified that he has made cash payments to Mother over the years, but kept no receipts. Father also presented letters from Mother and the children postmarked or dated December 16, 1991, Christmas 1993, and April 30, 1994, which demonstrated Mother knew where Father lived at these times. In addition, the April 30, 1994 letter indicated that Mother had recently received cash from Father in the mail. There were also several cancelled checks dated in 1994 and 1995 that indicated some payments were made during this time.

Mother did not attend the hearing. Her counsel cross-examined Father and presented a notice from the Texas court clerk indicating that her office had not received payments from Father since June 15, 1985. The trial court found in favor of Mother, holding that the action to enforce the 1985 child support order was not barred by laches or a statute of limitations. The trial judge reasoned, and Mother argues to this court, that child support orders should not be subject to laches or a statute of limitations. Such restrictions contravene public policy and result in punishing children for delay by their parents in pursuing rights under a support order. Although we are mindful of these concerns, our review of the relevant statutes and case law leads us to a contrary result.

We first address Father’s argument that Mother’s action is barred by the statute of limitations. The RURESA authorizes an obligee under a foreign support order to register that order in a court of the Commonwealth of Pennsylvania. 23 Pa.C.S. §§ 4536-4540. Section 4540 of the RURESA describes the effect and enforcement of a registered order:

(a) Effect. — Upon registration, the registered foreign support order shall be treated in the same manner as a support order issued by a court of this Commonwealth. It has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a support order of this Commonwealth and may be enforced and satisfied in like manner.
(b) Challenge to order. — The obligor has 20 days after the mailing of notice of the registration in which to petition the court to vacate the registration or for other relief. If he does not so petition, the registered support order is confirmed.
(c) Procedure. — At the hearing to enforce the registered support order; the obligor may present only matters that would be available to him as defenses in an action to enforce a foreign money judgment. If he shows to the court that an appeal from the order is pending or will be taken or that a stay of execution has been granted, the court shall stay enforcement of the order until the appeal is concluded, the time for appeal has expired or the order is vacated, upon satisfactory proof that the obligor has furnished security for payment of the support ordered as required by the rendering state. If he shows to the court any ground upon which enforcement of a support order of this Commonwealth may be stayed, the court shall stay enforcement of the order for an appropriate period if the obligor furnishes the same security for payment of the support ordered that is required for a support order of this Commonwealth.

23 Pa.C.S. § 4540 (emphasis added).

In paragraph (a), section 4540 provides that the registered foreign support order is subject to the same defenses as a Pennsylvania support order. Therefore, one might conclude that the statute of limitations is inapplicable because in Pennsylvania support orders are not subject to the defense of the statute of limitations. However, paragraph (c) of section 4540 narrows the broad language of paragraph (a) by providing that, at the enforcement hearing, the obligor may present “only matters that would be available to him as defenses in an action to enforce a foreign money judgment.” 23 Pa.C.S. § 4540(c). A foreign judgment is subject to a four year statute of limitations. 42 Pa.C.S. § 5525(5) (four year statute of limitations applies to “an action upon a judgment or decree of any court of the United States or of any state”). We conclude that the specific provision of paragraph (c) controls over the more general provision of paragraph (a), see 1 Pa.C.S. § 1933, thereby making the four-year statute of limitations applicable. Thus we conclude that Mother’s action remains valid only with respect to arrearages that have accrued since April 20, 1991, because the action for enforcement of these obligations was brought within four years of the payment due date.

We find further support for our position in several cases decided by this court. In Horowitz v. Horowitz, 411 Pa.Super. 21, 600 A.2d 982 (1991), the divorced parties entered into a support agreement in January 1977. Mother commenced an action to enforce the agreement, based on father’s failure to make payments, in April 1988. This court held that the four year statute of limitations barred collection of payments due before April 1984, four years prior to mother’s enforcement action. The court reasoned that the accumulated arrearages were to be treated like judgments at the time each came due. See 23 Pa.C.S. § 3105(a) (obligation to pay support under agreement has same effect as court order). The defense of the statute of limitations applied despite the fact that child support payments were involved.

Although Horowitz involved a support agreement and not a support order, the statute of limitations has been similarly applied in cases involving alimony orders. In Nucci v. Nucci, 355 Pa.Super. 549, 513 A.2d 1059 (1986), this court applied the statute of limitations relating to judgments (then six years) to arrearages due on a New Hampshire alimony order. See also Cohen v. Cohen, 352 Pa.Super. 453, 508 A.2d 561 (1986) (six year statute of limitations applies to judgments and runs as to each installment of alimony as it becomes due). We therefore must reverse the trial court’s decision to the extent it held that the statute of limitations does not bar any of Mother’s claim to the alleged child support arrearages. We hold that Mother is entitled to those amounts owing under the order from April 20,1991 forward.

In reversing the trial court’s decision in this matter, we recognize that certain additional factual findings must now be made regarding the exact amount due Mother. Father claims he has made various payments in cash, and the trial court apparently did not make any findings regarding these allegations. We remand so that the court may determine what Father actually owes since April 20, 1991, and any other findings that may be necessary consistent with this decision.

Reversed and remanded for further proceedings. Jurisdiction relinquished.

      . Father apparently lived in North Carolina for one year during 1987— 1988. Except for payments due during this period, the law of Pennsylvania applies. 23 Pa.C.S. § 4507 (duties of support are those imposed under the laws of any state where obligor was present for the period during which support is sought).

      . We note that RURESA does not contain a statute of limitations in its text.

      . Mother’s action was filed under the procedures for registration of a foreign judgment pursuant to the RURESA. However, we note that even under the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S. § 4306, which enables registration of foreign judgments in Pennsylvania, the four year statute of limitations at 42 Pa.C.S. § 5525(5) also would apply. National Union Fire Ins. v. Nicholas, 438 Pa.Super. 98, 651 A.2d 1111 (1994).

      . Because we decide this appeal on the basis of the statute of limitations, we need not address the issue of laches. However, we do note that our review of the record does not reveal proof that Father was unduly prejudiced by Mother's delay, as required by our decisions on this issue. See Bullock v. Bullock, 432 Pa.Super. 643, 639 A.2d 826 (1994) (33 year delay in collecting arrearages from 1959 support order did not establish laches in the absence of prejudice to defendant obligor; statute of limitations not a bar because it did not begin to run until date of divorce in 1992); Brendel v. Brendel, 429 Pa.Super. 319, 632 A.2d 876 (1993) (attempt to collect arrearages from 1971 Texas support order in 1991 enforcement action was not barred by laches; statute of limitations not discussed); Jackman v. Pelusi, 379 Pa.Super. 361, 550 A.2d 199 (1988) (delay alone, no matter for how long, does not establish laches in collecting arrearages on support order; statute of limitations not discussed).