text:
    495 A.2d 203
    Richard JONES, Appellant, v. P.M.A. INSURANCE COMPANY and Christopher Pakuris, Esquire, Appellees.
    Superior Court of Pennsylvania.
    Argued March 25, 1985.
    Filed June 21, 1985.

      Richard N. Shapiro, Philadelphia, for appellant.
    Wayne A. Schaible, Philadelphia, for appellees.
    Before BECK, POPOVICH  and TROMMER , JJ.

       Popovich, J., recused himself from this case after argument and did not participate in the disposition of this case.

       Judge Evelyn Trommer, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   BECK, Judge:

The sole issue in this appeal is whether the trial court erred in sustaining appellees’ preliminary objections. The trial court concluded that appellant’s sole remedy was provided by The Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1, et seq. (herein “the Act”), and that the trial court therefore lacked jurisdiction.

We affirm the trial court and conclude that preliminary objections were properly sustained but for reasons different from the trial court’s.

The relevant facts are as follows. Appellant sustained an injury within the scope of his employment. His employer was insured by appellee Pennsylvania Manufacturers’ Association Insurance Company (PMA). Appellant was paid workers’ compensation benefits for a short period of time. Appellant attempted to return to work, but was unable to do so because of his injuries. He filed a petition to receive additional workers’ compensation and to contest the prior termination of benefits.

Prior to a compensation hearing, and in appellant’s presence, appellant’s counsel asked Christopher Pakuris, in-house counsel for PMA, and one of appellees herein, whether appellant would be paid workers’ compensation benefits. Appellant claims appellee replied “We would pay him if he wasn’t represented by you.”

Appellant filed a suit charging intentional infliction of emotional distress, claiming that as a result of appellee’s statement, appellant became nervous, worried, experienced insomnia and suffered stomach disorders.

Appellees raised preliminary objections on several grounds. The trial court sustained the objections on the grounds that appellees were immune from suit. Appellant’s sole remedy was under the Act. This timely appeal followed.

Appellant correctly asserts that the exclusive protection provided by the Act does not exclude a suit for an intentional tort. The Pennsylvania Supreme Court held in Readinger v. Gottschall, 201 Pa.Super. 134, 137-8, 191 A.2d 694, 696 (1963):

If the injury is the result of an accident in the course of the employment, the Workmen’s Compensation Act by its term bars any recovery in trespass with certain exceptions. Nothing is said about an injury intentionally inflicted by the employer ...
... The word “accident” itself is nowhere defined in the act but its language, covering only injury or death “by an accident” indicates no intention that deliberate injury to an employee by his employer is intended to be covered.

Appellees cite provisions of the Act, which provides penalties for an insurer’s non-payment or delay in payment of compensation and for an unreasonable contest of a claim. 77 P.S. §§ 991(d)(i), 996. It is appellees’ argument that the Act protects appellant against the sort of harm appellant alleges. However, the type of claim contemplated by the penalty provisions does not include penalty for an intentional tort.

However, appellant’s preliminary objections were properly sustained since appellant’s complaint does not state a cause of action for intentional infliction of emotional distress. Under Restatement (Second) of Torts § 46:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to other results from it, for such bodily harm.

The conduct requisite for liability under section 46 was further explained in comment (d):

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”
The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions or other trivialities.

See D Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 511 n. 8, 431 A.2d 966 n. 8 (1981); Jones v. Nissenbaum Rudolph & Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976).

This court held in Riker v. DiGiacomo, 315 Pa.Super. 424, 427, 462 A.2d 267, 269 (1983), “If there exists any doubt as to whether the averments of the complaint would permit recovery if ultimately proven, the preliminary objection should not be sustained.” See Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976).

It is clear that appellees’ conduct did not rise to the level of an affront to society, or an act “utterly intolerable in a civilized community.” Appellee Pakuris’ statement was unquestionably an insult not to appellant himself, but to his lawyer. As the Restatement (Second) Torts concludes in comment (d) of section 46, “The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.”

The preliminary objections were properly sustained since appellant failed to state a cause of action. The order of the trial court is affirmed.

      . "It is well established that an appellate court may affirm the action of a lower court on a different rationale than that advanced by the lower court in support of its Order, Decree or Judgment.” Commonwealth v. Boden, 337 Pa.Super. 108, 110 n. 1, 486 A.2d 504, 505 n.l (1984) quoting Commonwealth ex rel. Wardrop v. Warden, 237 Pa. Super. 502, 504, 352 A.2d 88, 89 (1975).

      . Section 501 of the Act provides that an insurer that assumes the employer’s liability "shall be entitled to all of the employer’s immunities and protection hereunder.” See Brown v. Travelers Insurance Company, 434 Pa. 507, 254 A.2d 27 (1969) (employer’s worker’s compensation insurer included within the term “employer” as used in the immunity provisions of the worker’s compensation law).

      . It is interesting to note that greater tolerance for abusive language exists in the adversarial arena. See Post v. Mendel, 336 Pa.Super. 467, 485 A.2d 1176 (1984) and Thompson v. Sikov, 340 Pa.Super. 382, 490 A.2d 472 (1985).


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    495 A.2d 205
    Dale E. JONES and Darlee A. Jones v. Katherine L. STONE and James E. Stone. Appeal of Katherine L. STONE.
    Superior Court of Pennsylvania.
    Argued April 30, 1985.
    Filed June 21, 1985.

      Lacy Hayes, Jr., Harrisburg, for appellant.
    Marvin Beshore, Harrisburg, for appellees.
    Before TAMILIA, MONTGOMERY and ROBERTS, JJ.
   TAMILIA, Judge:

This is an appeal from the Order of July 12, 1984 awarding custody of the minor child to Dale E. Jones and Darlee A. Jones, the foster parents/appellees, and partial custody to Katherine L. Stone, the natural mother/appellant. We affirm.

On October 7, 1980, at the tender age of eleven weeks, James Edward Stone, Jr. (hereinafter “Jamie”), who is now four years old, was placed with the appellees by the York County Child Welfare Agency. The agency discovered that Jamie had been apparently abused by his father and therefore placed him with the appellees, who had more than sixteen years experience as foster parents.

On February 13, 1981, the child was returned to his mother, who subsequently asked the appellees to care for him on weekends, which they agreed to do. However, the weekends turned into three or four day periods and the mother eventually asked the appellees to give her child a home for the time being because of problems she was having with her parents and her employment schedule. At no time did the mother provide support for the child until an order for support of $10 per week was entered by the court. The appellees have provided for all of Jamie’s needs since he has been with them except they are receiving some public assistance aid to help defray the medical costs and speech therapy that the child needs. In order to enable the appellees to obtain public assistance, the mother signed the applicable forms which acknowledged the control vested in the appellees and the care they were giving her child.

While the lower court could not causally link the child’s emotional and physical development to the head injuries inflicted on him as an infant, it did note that he has severe behavioral and speech problems. The Opinion of the lower court, in discussing Jamie’s condition, sets forth that:

It was the Jones’ [sic] who recognized these problems and undertook to do something about them. (N.T. 1-111, 112; 118-120); 2-25, 26, 27). Since September of 1983 he has been in a program for speech therapy at the Polyclinic Hospital Speech and Hearing Center (N.T. 1-59) and it has been the Jones’ [sic] who have seen that the program is pursued. (N.T. 1-62, 63, 74). The mother has never contacted any of Jamie's doctors or those involved with his speech and behavioral therapy. (N.T. 1-64; N.T. 2-25, 26, 27). It is the opinion of John M. Hume, M.D., a psychiatrist, (N.T. 1-36 to 56) that Jamie has developmental problems of a hostile and aggressive behavior, together with speech difficulties, reflecting the insecurity of being moved back and forth between the mother and the Jones’ [sic] and its attendant anxieties. He further concludes that the child has become psychologically bonded to the Jones’ [sic] and that a disruption of this relationship would be very harmful to the child.

(Slip Op. at 3-4).

Since January of 1982, the mother has taken Jamie only on weekends and has rarely called on weekdays to inquire about him. As a result, Jamie is now reluctant to leave the appellees’ company to go with his mother. When the appel-lees informed the mother about Jamie’s increasing behavioral problem, she agreed to make more frequent visits, but did so for only a short time. Moreover, except for a half day at Christmas, the mother has asked for Jamie on only one other holiday. The record also reflects that when Jamie did visit his mother, her personal care of him was marginal at best. Finally, prior to the custody proceeding at issue here, the mother had never indicated any plans to have Jamie reside with her permanently and, in fact, repeatedly agreed that it was in her child’s best interests to remain with the appellees.

On February 22, 1984, the appellees initiated an action for custody of the child and obtained an ex parte Order which maintained the custodial status quo with respect to the custody of the child during the pendency of this action.

On April 18 and May 21, 1984, hearings were held before the Honorable Warren G. Morgan of the Court of Common Pleas of Dauphin County. At the conclusion of the appel-lees’ case on May 21, 1984, the appellant moved for Judge Morgan to dismiss their complaint. Appellant alleged that the appellees presented no evidence tending to show that the natural mother was unfit. This motion was denied and on July 12, 1984, Judge Morgan issued an order awarding custody of the child to appellees. The instant appeal followed.

The issue before us is whether the lower court erred in finding that it would be in the best interests of Jamie to reside in the household of the appellees/fostér parents.

At the outset, we note that our paramount concern in custody cases is the best interest and permanent welfare of the child. See, e.g., In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978). Furthermore, this Court’s scope of review in custody cases has recently been clarified by the Pennsylvania Supreme Court in Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 237, 478 A.2d 800, 806 (1984), which held:

an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings [,] ... and, thus, represent a gross abuse of discretion ...
(citations and footnote omitted; emphasis in original).

Having applied this scope of review to the instant case, we are satisfied that: 1) the hearing judge’s Opinion was comprehensive and fully supported by the record; and 2) that the hearing judge’s decision served the best interests of the child and should not be reversed.

Appellant has mistakenly framed the issue as turning on the natural mother’s fitness, when that is only one of the factors to be considered. In Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980), our Supreme Court rejected a formulation of the issue in terms of the absence of any evidence that a parent has forfeited his or her prima facie right to custody of a child. The Albright Court stated that:

Such a formulation tends to focus the inquiry on the respective rights of the contesting parties whereas the real issue is the best interest of the children involved. Restated, the standard in this area is not to be construed as precluding a custody award to a non-parent, absent a demonstration of the parent’s dereliction. We again emphasize that the standard seeks only to stress the importance of parenthood as a factor in determining the best interests of the child. However, other factors which have significant impact on the well being of the child can justify a finding in favor of the non-parent, even though the parent has not been shown to have been unfit.

Id., 491 Pa. at 328, 421 A.2d at 161. See In re James John M., 333 Pa.Super. 417, 482 A.2d 637 (1984).

In resolving custody disputes between a parent and a third party, the proper standard of proof is that set forth by this Court in In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977), and adopted by our Supreme Court in Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980).

That is, the parents’ right to custody will be forfeited only if convincing reasons “appear that the child’s best interest will be served by an award to the third party.” In such instances, the evidentiary scale favors the parent. What the hearing judge must do is to hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to tip the scale down on the third party’s side.

In re James John W., supra 333 Pa.Super. at 422, 482 A.2d at 640 (citing Ellerbe and Hernandez).

In the instant case, we are satisfied that the appellees have met their heavy burden of production and persuasion. Such a result is mandated by the following findings of the lower court:

This is not an adoption case and the record amply demonstrates that the Jones’ [sic] never intended to take this mother’s child away from her. They have a fine family of their own. They are just very good, compassionate people who love children and were also eager to help a young mother who was having problems caring for her child. It is plain that at all times they have tried to foster and develop the mother’s relationship with Jamie, trying to get her to spend more time with him and to concern herself about his welfare. Otherwise strangers to the mother, the Jones’ [sic] who first offered themselves as babysitters found themselves thrust by an irresponsible mother into the role of parents, caring for and nurturing this child.
We had an extended opportunity to observe this mother and it is our perception that the ground of such little interest as she has shown in Jamie is not parental devotion but rather a self-image requiring that she not admit that she has virtually abandoned the child. This is seen in her remarks to Mrs. Jones that “she needed” the week-ends (N.T. 1-113); that although Jamie was happiest in the Jones’ [sic] home “... that’s not what makes her the happiest.” (N.T. 1-129). Her explanation for her conduct to the effect that she was too destitute to establish a different relationship with Jamie just isn’t persuasive.

(Slip Op. at 4-5).

Upon review of the entire record, we are satisfied that the lower court’s resolution was sufficient and should not be disturbed. The hearing judge, as fact finder, was in the best position to evaluate the sincerity and credibility of the witnesses, and we conclude that his findings were supported by competent evidence. See In re Custody of Pearce, 310 Pa.Super. 254, 456 A.2d 597 (1983). It is clear from the thorough Opinion of Judge Morgan that he carefully considered the matter, and that his decision was based on his judgment that the appellees were more capable of establishing a stable relationship with the child than the natural mother was. In Albright v. Commonwealth ex rel. Fetters, supra, Justice Nix, currently Chief Justice of our Supreme Court, noted the importance of the stability factor in a custody dispute:

In Ellerbe, we held that the removal of a child from a secure and familiar environment was the type of factor that could justify the award of the child to a grandparent over the claim of a parent. Ellerbe v. Hooks, supra. The adverse effect upon the development of youngsters caused by the disruption of an established stable relationship has been well recognized in this area of the law. Gunter v. Gunter, 240 Pa.Super. 382, 399, 361 A.2d 307 (1976).

Id. 491 Pa. at 326, 421 A.2d at 160. See also Gerber v. Gerber, 337 Pa.Super. 580, 487 A.2d 413 (1985). Here, the importance of stability is even more pressing because of Jamie’s present speech and behavioral problems. We find that the bonds of affection between Jamie and the appellees “have become so strong that to sunder them suddenly may result not only in the child’s unhappiness but also in its physical injury----” In re Tremayne Quame Idress R., 286 Pa.Super. 480, 493, 494, 429 A.2d 40, 47-48 (1981) (citations omitted). See also Pamela J.K. v. Roger D.J., 277 Pa.Super. 579, 589, 419 A.2d 1301, 1307 (1980).

Finally, we conclude that there is no need to remand this matter for the gathering of more evidence or for further exposition of the reasons for the lower court’s decision. The lower court held two days of hearings and the appellees presented the testimony of family members, their pastor and a psychiatrist. The appellant, on the other hand, chose not to make a request to the court to appoint a psychiatric expert on her behalf, and offered only her testimony and that of her mother in an attempt to counter the allegations that she was unfit. Appellant had an ample opportunity to present further testimony but chose not to do so. Her allegations that the record is incomplete are meritless; thus a remand “would only be an unwarranted imposition and expense upon all parties.” Commonwealth ex rel. Robinson v. Robinson, supra 505 Pa. at 237, 478 A.2d at 806.

Accordingly, the Order of July 12, 1984 awarding custody of the minor child to the appellees is affirmed. This Order is, of course, subject to the right of either party to seek a modification of it and to present evidence to the trial court of a substantial change in circumstances since the date of the last evidentiary hearing. Gonzalez v. Gonzalez, 337 Pa.Super. 1, 486 A.2d 449 (1984).

Jurisdiction is relinquished.

      . James E. Stone, Sr., the minor child’s father was killed in an automobile accident on December 5, 1984.

      . The appellees are in their forties and have five other children ranging from a son in his early twenties to an eight year old daughter. Mr. Jones has been regularly employed as a heavy equipment mechanic by the same firm for twenty years and Mrs. Jones is.a licensed practical nurse.

      . The July 12, 1984 Order gave the appellees custody of the minor child and stated that "the natural mother, Katherine L. Stone, shall have such rights of temporary custody as the parties shall agree upon and, if the parties cannot agree, this Court will fix such rights upon application.”

      . Appellant’s reliance on In re Adoption of Crystal D.R., 331 Pa.Super. 501, 480 A.2d 1146 (1984) is misplaced as that case dealt with a petition for the termination of parental rights filed by foster parents who sought to adopt the child. Obviously, "the determination of custody, which is governed solely by the best interests of the child, is an entirely separate issue from that of whether to terminate parental rights.” In re Adoption of Michael J.C., 506 Pa. 517, 526, 486 A.2d 371, 376 (1984) (Flaherty, J., dissenting). Here, we are only concerned with a custody dispute and, in any event, the appellees have never interfered with the appellant's relationship with her child. In fact, the record discloses that the appellees encouraged the appellant to spend more time with Jamie.

      . Jamie also displayed a clear preference to remain with the appellees and became upset whenever he had to go with his mother. While the weight to be accorded such preference varies according to age, intelligence and maturity of the child (i.e., Jamie is four years old), Commonwealth ex rel. Bankert v. Children’s Services, 224 Pa.Super. 556, 307 A.2d 411 (1973), it is one factor to be considered.

      . The testimony of John H. Hume, M.D., a psychiatrist, emphasized the strong bonding between the appellees and the child, and cautioned that a sudden breaking of these bonds would exacerbate the child's existing physical, emotional and social problems.


author: MONTGOMERY, Judge:

text:
    495 A.2d 210
    Kenneth GERARD v. PENN VALLEY CONSTRUCTORS, INC. and Levittown Glass Company, Inc. Appeal of LEVITTOWN GLASS COMPANY, INC.
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Filed June 21, 1985.

      Frederick C. Fletcher, II, Philadelphia, for appellant.
    Richard A. Weisbord, Philadelphia, for Gerard, appellee.
    Peter A. Glascott, Doylestown, for Penn Valley, appellee.
    Before OLSZEWSKI, MONTGOMERY and LEDERER , JJ.

       Honorable William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   MONTGOMERY, Judge:

The instant appeal arises from an order of the lower court granting in part, and denying in part, a motion for summary judgment submitted by the Appellant, Levittown Glass Company, Inc. (hereinafter often referred to herein as the “Subcontractor”), which is an Additional Defendant in the case. We find that the lower court erred in denying, in part, the summary judgment sought by the Appellant.

The record shows that the Plaintiff, Kenneth Gerard, was a Pennsylvania resident who was injured when he apparently fell from a scaffold while in the course of his employment at a construction site in New Jersey. At the time, the Plaintiff was an employee of the Appellant Subcontractor, a Pennsylvania corporation. Penn Valley Constructors, Inc. (hereinafter often referred to as the “General Contractor”), the original Defendant in this case, was the general contractor on the job site, and had employed the Appellant as a subcontractor. The General Contractor was also a Pennsylvania corporation.

The Plaintiff brought suit for damages against the General Contractor in this action filed in Bucks County, Pennsylvania. Thereafter, the Defendant General Contractor joined the Subcontractor as an Additional Defendant, claiming that the latter was liable for negligence in failing to provide the Plaintiff with a safe place to work, and also that it was liable in assumpsit, based upon the terms of a construction contract between the General Contractor and the Subcontractor. The Appellant Additional Defendant filed a motion for summary judgment, contesting both the trespass and assumpsit claims against it.

The lower court analyzed the legal principles relevant to the resolution of the Appellant’s motion for summary judgment, and in doing so, reached the finding that New Jersey law should be applied in the instant case rather than Pennsylvania law. That finding will be more fully discussed later in this Opinion. The lower court concluded that the Appellant could not be held liable in this case on a trespass theory, but determined that liability could be assessed against the Appellant on the assumpsit claim. Therefore, the court granted the motion for summary judgment as to the trespass claim, but rejected the claim for similar relief as to the assumpsit claim against the Subcontractor.

The lower court’s findings as to the trespass claim against the Appellant deserve only brief comment. Statutory immunity is provided in both Pennsylvania and New Jersey to employers for all trespass claims which may arise out of situations in which their employees are injured, including third party claims like those raised by the Defendant in the instant case. See Act of December 5, 1974, P.L. 782, No. 263, Section 6, 77 P.S. § 481; Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977); N.J.S.A. 34:15-1, 34:15-8, 34:15-40; Ruvolo v. United States Steel Corporation, 139 N.J.Super. 578, 354 A.2d 685 (1976). Under the law of both states, the employer may waive his immunity from claims by third-party defendants, sued by the employer’s employees, when the employer has expressly contracted to incur such liability, and to indemnify such third party defendants for it, should it arise. See Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. § 481(b); Rommell v. United States Steel Corporation, 66 N.J.Super. 30, 168 A.2d 437 (1961). As will be discussed later in this Opinion, the assumpsit claim in issue depends upon whether it may be found that the Appellant did enter into a contract to incur such liability. In any event, no other party to this action has instituted an appeal to contest the lower court’s finding that the Appellant could not be held liable on the trespass claim asserted against it by the General Contractor, so that we need not further discuss that aspect of the case.

We next turn to the question of whether or not the lower court ruled correctly in refusing the Appellant’s motion for summary judgment as to the assumpsit claim. Two arguments are offered by the Appellant for our consideration. First, it is maintained that the lower court erred in applying New Jersey law rather than Pennsylvania law in this case. It is contended that if Pennsylvania law were applied the General Contractor would be considered a “statutory employer”, would bear no trespass liability to the injured Plaintiff, and consequently, there would be no reason to consider the Appellant’s liability over to the General Contractor for any amount, because the Plaintiff’s claim would be dismissed. Secondly, the Appellant argues that whether Pennsylvania law or New Jersey law is determined to be applicable in this case, the Appellant could not be held liable to the Defendant General Contractor because the former did not enter into any contractual agreement to indemnify the latter or otherwise assume liability for injuries to the Subcontractor’s employees in situations similar to those presented by the instant case. We find merit in the latter contention.

The lower court found that the following clause in the construction contract between the Subcontractor and the General Contractor constituted an express indemnity provision under which the Subcontractor agreed to assume liability to indemnify the General Contractor for damages like those claimed by the Plaintiff in this case:

Subcontractor will submit to Contractor before the commencement of work insurance certificates showing that Subcontractor is covered by workmen’s compensation insurance as required by law, and also public liability insurance for property damages, personal injury or death.

We cannot agree with the lower court’s conclusion that the above-quoted provision constituted an express undertaking by the Appellant to indemnify the Defendant General Contractor against third-party negligence claims by injured employees of the Appellant.

The law of both New Jersey and Pennsylvania is clear in eliminating the right of a third party to obtain contribution or indemnity from an injured employee’s employer in the absence of an express contractual undertaking. See Ruvolo v. United States Steel Corporation, supra; Karadis Brothers Painting Company v. Pennsylvania National Mutual Casualty Company, 119 N.J.Super. 446, 292 A.2d 42 (1972); Hall v. Goodman Company, 310 Pa.Super. 465, 456 A.2d 1029 (1983); Hefferin v. Stempkowski, supra. Moreover, under the law of both jurisdictions, an asserted indemnification contract will be carefully scrutinized, and is subject to strict construction. See Cozzi v. Owens Corning Fiberglass Corporation, 59 N.J.Super. 570, 158 A.2d 231 (1960); Employers Liability Assurance Corporation v. Greenville Business Men’s Association, 423 Pa. 288, 224 A.2d 620 (1966); Potts v. Dow Chemical Company, 272 Pa.Super. 323, 415 A.2d 1220 (1979). With these principles in mind, we cannot conclude that the clause in the construction agreement between the Defendant and the Appellant, recited above, comprises or includes any express indemnity undertaking by the Appellant. The language merely provides that the Appellant will obtain insurance coverages of certain types.

Therefore, we must reject the lower court’s finding that the Appellant subjected itself to a contractual indemnity clause and thereby could be held liable on the Defendant’s assumpsit theory, whether the law of New Jersey or Pennsylvania were found to be applicable. In light of this conclusion, it would serve no purpose for us to reach the merits of whether or not the lower court was correct in finding New Jersey law, rather than Pennsylvania law, applicable in this case. Under the law of either jurisdiction, the result would be the same, because it is evident the Appellant has not entered into an express agreement to assume liability or to indemnify the General Contractor with respect to damages of the type sought by the Plaintiff. Therefore, the Appellant’s motion for summary judgment should have been granted by the lower court as to both the trespass and assumpsit claims asserted by the Defendant General Contractor.

That part of the lower court’s order which denied the Appellant’s motion for summary judgment as to the as-sumpsit claim is reversed, and it is directed that summary judgment be entered for the Appellant as to both the assumpsit and trespass claims asserted against it in this case. The case is remanded to the lower court for such further proceedings as may be appropriate regarding the remaining issues in dispute. Jurisdiction is not retained.

      . Following the lower court’s ruling on its motion for summary judgment, the Appellant obtained an order from the lower court certifying the issues presented for an appeal pursuant to Section 702 of the Judicial Code (42 Pa.C.S.A. § 702) and Pennsylvania Rules of Appellate Procedure 1311 and 1312. Our Court agreed to permit this interlocutory appeal.


author: POPOVICH, Judge:

text:
    495 A.2d 540
    COMMERCIAL CREDIT CORPORATION, Appellant, v. Ruth Ann CACCIATIORE, a/k/a Ruth Ann Lewis.
    Superior Court of Pennsylvania.
    Argued March 26, 1985.
    Filed May 24, 1985.
    Reargument Denied July 30, 1985.

      William L. McLaughlin, Paoli, for appellant.
    Before BECK, POPOVICH and TROMMER, JJ.

       Judge Evelyn M. Trommer, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Delaware County (per Judge Levy) dismissing the appellant’s, Commercial Credit Corporation’s, complaint in assumpsit against Ruth Ann Cacciatiore, a/k/a Ruth Ann Lewis. We affirm.

The facts reveal that on October 13, 1981, the appellant filed a complaint alleging that the appellee owed it a balance of $5,993.55 on monies loaned October 6, 1976.

On October 19, 1981, and August 2, 1983, the Sheriff was unsuccessful in serving the appellee. On both occasions, the Sheriffs return read that the appellee had either moved or no longer lived at the address where the service of process was attempted.

It appears of record that, prior to the second unsuccessful service of the complaint, counsel for the appellant filed a praecipe with the “Office of Judicial Support” seeking reinstatement of the complaint. Thereafter, service of the complaint was effectuated and prompted the filing of a “Motion For Dismissal Pursuant To Delaware County Rule of Court No. 212” by counsel for the appellee. The Rule provides:

In all actions begun on or before December 31, 1981, a certificate of readiness must be filed not more than 240 days after the action is commenced. A civil action is commenced when the praecipe for writ or complaint is filed. Any party may certify a case ready for trial prior to the expiration of the 240 day deadline.

In response, counsel for the appellant filed an answer and new matter alleging, as is relevant herein, that:

12. Counsel for the [appellant] for the purpose of this rule, has always construed to [sic] rule to mean that the 240 day period commences when an unserved complaint is reinstated and service later-made [sic] of the reinstated complaint.

According to the appellant’s brief, with which no one takes issue, no briefs were submitted by either side nor did the trial court hear argument before granting the dismissal motion. This appeal ensued, and, thereafter, a “concise statement of the matters complained of in appeal” was ordered filed by the trial court. (See Appellant’s Brief at 5) In compliance therewith, the appellant posits the following arguments in support of his request for a reversal of the trial court’s action; viz.:

1. WAS THE COURT’S ACTION IN DISMISSING THE CASE IN VIOLATION OF Pa.R.C.P. 239(f)?
2. IS DELAWARE COUNTY RULE 212, AS CONSTRUED BY THE COURT, CONTRARY TO THE PROVISIONS OF PA.R.C.P. 239(b)?
3. DOES DELAWARE COUNTY RULE 212 IMPLEMENT THE UNIFIED JUDICIAL SYSTEM AND FACILITATE STATEWIDE PRACTICE?
4. WAS COMMERCIAL CREDIT DEPRIVED OF PROPERTY WITHOUT DUE PROCESS OF LAW?

Of interest here is the fact that procedurally the issues raised by the appellant were done so for the first time in response to the trial court’s request, made pursuant to Pa.R.App.P. 1925(b), for “a concise statement of the matters complained of in appeal.”

We find that the issues raised by the appellant, notwithstanding the trial court’s treatment thereof in its opinion to this Court, are waived save for Point # 12 reproduced supra. This result is in accordance with the Supreme Court’s decisions in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974) and Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), which announced the waiver rule in civil and criminal cases. The rationale for strict compliance with the preservation requirements enunciated in Dilliplaine appear in Tagnani v. Lew, 493 Pa. 371, 375, 426 A.2d 595, 597 (1981):

With the volume and complexities of the matters coming to our judicial system for resolution, it has become imperative that the former paternalistic approach be discarded and a high degree of professionalism be insisted upon. Our resources are not unlimited and must be utilized to provide the greatest good to the greatest number. To maximize our efficiency and to maintain and enhance the quality of our dispute resolution process, strict compliance with the procedures designed for issue preservation is essential.

Despite the appellant’s inclusion of Point # 12 in its answer and new matter, filed in response to the appellee’s motion to dismiss, nowhere is there any mention of the four (4) issues presently appearing in the appellant’s brief to us. We believe this to be fatal. See, e.g., City of Pittsburgh v. Pa., 490 Pa. 264, 270 n. 7, 416 A.2d 461, 464 n. 7 (1980) (Argument that did not appear in the pleadings was deemed waived for appellate review purposes in accordance with Dilliplaine); cf. Richardson v. LaBuz, 81 Pa.Cmwlth. 436, 442, 474 A.2d 1181, 1189 (1984) (“... we agree with the court en banc that the Commonwealth waived the statute of limitations defense by not raising it seasonably in new matter.”). This position was alluded to in dictum by this Court in Bell v. Bell, 326 Pa.Super. 237, 252 n. 2, 473 A.2d 1069, 1077 n. 2 (1984):

... we wish to acknowledge our agreement with the trial court that those arguments raised by the appellant for the first time in her concise statement of matters complained of on appeal are waived. See Benson v. Penn Central Transportation Co., 463 Pa. 37, 41, 342 A.2d 393, 395 (1975); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

And, the fact that the trial court addressed the issues presented in the appellant’s concise statement of matters complained of on appeal is not enough to rectify the initial deficiency. As much was stated by our Supreme Court in Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979). We see no reason for not applying the logic of Gravely’s specificity requirement in post-verdict motions as a condition precedent to preserving an issue for appellate review to the civil arena of the law. Accord Cherry v. Willer, 317 Pa.Super. 58, 463 A.2d 1082 (1983).

Also, since the requirements of Rule 1925(b) have been held to be directory and not mandatory, such that non-compliance therewith by a defendant will not preclude him from raising those issues properly raised in post-verdict motions on appeal, see Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982), the same rationale should hold true in the converse, i.e., failure to preserve issues in post-trial documents cannot be rectified by proffering them in response to a Rule 1925(b) order of court. To hold otherwise would be an aberration of the law.

Thus, finding the issues (save for Point # 12) waived, we affirm the order of the trial court.

      . Since the trial court’s opinion at page 8 adequately responds to the appellant’s Point #12 argument, we need say no more.


author: SPAETH, President Judge:

text:
    495 A.2d 543
    COMMONWEALTH of Pennsylvania v. Melvin Dean SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 25, 1985.
    Filed June 14, 1985.

      W. Hamlin Neely, Allentown, for appellant.
    Mark S. Refowich, Assistant District Attorney, Easton, for Commonwealth, appellee.

      Before SPAETH, President Judge, and CIRILLO and SHOYER , JJ.

       The Honorable Kendall H. SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   SPAETH, President Judge:

This is an appeal from judgment of sentence for rape, involuntary deviate sexual intercourse, and robbery. Appellant argues that the trial court erred in instructing the jury regarding the victim’s identification testimony, and in failing to instruct the jury that if they found a Commonwealth witness to have been an accomplice, they had to view his testimony with caution. We affirm.

The Commonwealth witness who, according to appellant, could have been found to have been an accomplice, was named Eugene Taylor. Up to a point, appellant’s testimony and Taylor’s testimony were in agreement. According to this testimony: On February 3, 1983, appellant and Taylor drove a relative, Charlene Chain, from Delaware to Chain’s home in Allentown, Pennsylvania. Although they used Taylor’s car, appellant drove. They arrived in Allentown between 9 and 10 p.m. and went to a local bar, N.T. at 223-26, 359-62, where they met appellant’s brother, John. After accompanying John to a friend’s house, where they injected drugs, N.T. at 228-30, 363-65, Taylor and appellant went to a second bar. There appellant spoke with some friends, including Stanley Bell, drank beer, and shot pool. Appellant testified that they went to the second bar around midnight. N.T. at 366. From this point on, appellant’s testimony and Taylor’s diverged.

According to appellant: He, Taylor, and Bell left the bar around 12:30 a.m., and drove in Taylor’s car to a nearby housing project to get some more drugs. They then went to Bell’s apartment, where appellant and Bell injected the drugs and drank beer. At about one o’clock, Taylor said he wanted to go to Chain’s apartment. Appellant accompanied Taylor, to show him where to park, and then left Taylor and returned to Bell’s house, where he remained, except for a short period, until the early morning. He did not see Taylor again that night. N.T. at 367-75. Appellant’s testimony was corroborated by that of Stanley Bell. N.T. at 287-307.

According to Taylor: He and appellant left the second bar alone. Appellant said that he had arranged to meet a girl and was to follow her home. Appellant drove Taylor’s car for an unspecified period of time, at one point following a blue Chevette. N.T. at 233-34. They soon saw a blue Chevette pull into a parking lot, although Taylor didn’t know if it was the same car they had been following. Taylor did not know where they were or if they were still in Allentown. A white woman got out of the car, quickly crossed the street, and entered an apartment house. Appellant pulled the car up onto the sidewalk, arousing Taylor’s fears that his car was being harmed. Appellant immediately got out of the car, telling Taylor, “I’ll be right back.” Taylor then saw him “trot” across the street and enter the apartment building. N.T. at 238-43. Taylor waited in the car for approximately twenty minutes and then stopped a police officer to ask directions back to Allentown. After waiting several more minutes for appellant to return, Taylor crossed the street and entered the apartment house; He called up the stairs to appellant. Hearing no response, he returned to the car to wait. About five minutes later, appellant “came trotting across the street,” entered the driver’s seat, and drove away. He told Taylor that he had just had intercourse. N.T. at 243-48.

The victim, then a senior at Lehigh University, described what had happened as follows. She returned to her apartment in Bethlehem, at about 1:30 a.m.; she had been out with some friends, and during the evening, in a three-hour period, had drunk three glasses of beer. N.T. at 16-17. On returning to her apartment, she parked her car, a blue Chevette, in the parking lot across the street. She ran across the street, entered the building, and ran up the two flights of steps to her apartment, on the third floor. N.T. at 19-22. The entrance hall and the second and third floor landings were lit by 60 watt bulbs. N.T. at 21, 103-07. She is nearsighted, but was wearing her glasses. N.T. at 12, 21. As she put her key in her apartment door, she “heard someone run up the steps and [she] saw a black man running up the second-floor landing towards [her].” N.T. at 22. The hall light was on, above her head. She was asked:

Q. Did you have any difficulty seeing his face?
A. No.
Q. Did you look at him?
A. Yes.
N.T. at 23.

The man ran up the steps and, holding her from behind, held a knife to her neck and said, “Shut up, you white bitch. Don’t say anything or I’ll kill you.” N.T. at 24. While holding her, he reached up and unscrewed the hall light bulb. N.T. at 24. He then ordered her to undress, again threatening her life if she refused. When she did not comply, he undressed her and proceeded to have vaginal and oral intercourse. N.T. at 25-26. Although the assailant pulled the victim’s sweater over her head and ordered that she not look at his face, she testified that during oral intercourse she did see his face, lit by the light from the second floor hallway. N.T. at 32-33. When he finished, the assailant demanded money, again threatening to kill the victim if she concealed any money. He then took $21 from the pocket of the victim’s jeans and also took her keys. He tied her up with her socks and left her on the landing. He told her that “if [she] told anyone, he would come back and kill [her] and told [her] not to tell the police. ...” He then ran down the steps. N.T. at 27, 37.

To return to Taylor’s testimony: Taylor testified that the trip to Allentown, after appellant returned to the car, took about fifteen to twenty minutes. N.T. at 248. He said that appellant parked the car near Chain’s apartment, and that as they walked to appellant’s brother’s house, appellant gave Taylor a set of apartment keys, saying: “Here. Take the keys. These keys go to the sister’s apartment.” N.T. at 248. Appellant’s mother, who is also Taylor’s sister, lives in Allentown. Taylor said that he put the keys in his pocket and went to appellant’s brother’s house to spend the night. N.T. at 249.

The next morning, Taylor discovered that his car was missing and went to the police station to report it. The police told him that they had impounded the car, and arrested him on charges, inter alia, of rape. When Taylor emptied his pockets, the police discovered the keys to the victim’s apartment. Taylor was held for three weeks, but he was released and the charges were dropped when the police learned that the fingerprints found on the light bulb from the third floor hallway of the victim’s apartment building did not match those of Taylor. N.T. at 251-55.

The prints did, however, match those of appellant. Appellant was then arrested. The victim positively identified appellant at the preliminary hearing, held one month after the crime. N.T. at 39-40. At trial, the victim again positively identified appellant. She testified:

Q. You had a short period of time before the light was unscrewed when you saw the man. Am I correct?
A. Yes.
Q. You also saw the man with limited light from the second floor. Correct?
A. Yes.
Q. Are you certain that this is the man?
A. Yes.
Q. Can you explain to the jury the characteristics of the man’s face that caused you to make this identification.
A. I saw his face as he ran up the landing. I saw his hair. I saw his body and his build and I saw him up close when he forced me to have oral sex with him, and I saw him when he ran up the landing and I’m sure that’s the man who raped me. I saw him.
N.T. at 40-41.

The victim also identified appellant by voice, after he had testified. N.T. at 382. The jury found appellant guilty and the trial court imposed sentence of, inter alia, 10 to 20 years’ imprisonment for rape, and 2 to 4 years’ for robbery, the sentences to run consecutively. After timely post-verdict motions were filed and denied, this appeal followed.

Appellant argues first that the trial court did not properly instruct the jury that they were to consider the victim’s identification testimony with caution. In evaluating this claim, we must review the court’s charge as a whole, for we may not predicate a finding of error upon isolated excerpts of the charge; it is the general effect of the charge that controls. See Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980); Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978).

The trial court instructed the jury on how they should consider the victim’s testimony at various points of the charge:

Let me discuss with you briefly some of the factors that you should consider in deciding whether a witness’s testimony is worthy of belief. You should consider the witness’s manner of testifying. How did the witness look? How did the witness conduct himself or herself and speak while on the witness stand? Did the witness appear forthright? Did they appear candid in their testimony? Did it have the ring of truth about it? You should consider whether the witness’s testimony was affected by any physical or mental condition that would affect the witness’s ability not only to recall but to retain what happened. You should consider the witness’s intelligence and the witness’s ability to observe and be informed about the matters to which that witness testified. You should consider the witness’s ability to remember the events about which that witness testified. You should consider whether the witness was positive and certain or whether the witness was hesitant and doubtful about the matters to which the witness testified. You should also consider whether the witness testified frankly or fairly or whether that witness showed favoritism or was biased in any way. You should consider whether the witness has anything to gain or to lose from the outcome of the case.
* * * 3}! ^5 *
Now, identification: Even though a crime has been committed, the defendant may not be found guilty unless the Commonwealth has proven, beyond a reasonable doubt, that this defendant is in fact the one who committed the crimes.
In this case, the Commonwealth’s witness, Lisa Reider, the victim, identified the defendant as the one who committed the crime. However, a mistake can be made in identifying a person, even by a witness who is attempting to be truthful. There is evidence in this case that immediately following the incident, Lisa Reider failed to identify the defendant as the one who committed the crime. So in determining whether or not to accept, as accurate identification, testimony of the victim, Lisa Reider, you must also take into consideration the following matters: First, whether the testimony of the identification witness is generally believable; secondly, whether her opportunity to observe was sufficient to allow her to make an accurate identification; thirdly, how the identification was arrived at; fourthly, all of the circumstances indicating whether or not the identification was accurate and, fifth, whether the identification testimony is supported by other evidence in the case. So that is how you shall approach the identification testimony of Lisa Reider.
N.T. at 393-94, 410-11.

While appellant agrees that this charge would be “routinely acceptable,” Brief for Appellant at 32, he argues that here special cautionary instructions were required because of the particular unreliability of the victim’s identification. He bases this claim on testimony by the investigating officer that in describing her attacker, shortly following the incident, the victim told him that she had not seen his face, N.T. 140, and on the victim’s acknowledgment of this fact, on cross-examination, N.T. 58-59.

Our Supreme Court has specified the situations in which an eyewitness’s identification will be considered so unreliable as to require special cautionary instructions:

Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received with caution — indeed the cases say that “his [positive] testimony as to identity may be treated as the statement of a fact.”
On the other hand, where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.
(citations omitted).
Commonwealth v. Kloiber, 378 Pa. 412, 424, 106 A.2d 820, cert. denied, 348 U.S. 875 [75 S.Ct. 112, 99 L.Ed. 688] (1954).

Here, the victim’s identification was not such as to require either a “Kloiber charge” or cautionary instructions different from those given by the trial court. The victim had two opportunities to observe her assailant, in full light, as he came up the stairs to her, and during oral intercourse. N.T. at 21, 26, 22-23, 40. She wore her glasses during the first opportunity, and although she did not during the second, that was at close range so that her nearsightedness would not affect her visual acuity. Her identification was positive at the preliminary hearing and at trial and was not shaken either by cross-examination or possible attempts at intimidation. She also made a positive voice identification. Finally, at no time did she either fail to identify appellant or misidentify another person. See Commonwealth v. Harrison, 290 Pa.Super. 389, 434 A.2d 808 (1981) (Applying Kloiber factors, court concludes eyewitness identification was sufficiently positive and reliable to support conviction); compare Commonwealth v. Wiley, 288 Pa.Super. 397, 432 A.2d 220 (1981) (Analyzing all circumstances, court concludes identification was too speculative and uncertain to support conviction). While both the victim and the investigating officer testified that the victim told the officer, shortly after the incident, that she had not seen her attacker’s face, N.T. at 58-59, 140, the victim explained this by saying that she “was scared. He had my keys and he said he would come back and get me and just scared me.” N.T. at 64. The trial court’s charge properly left to the jury the evaluation of this explanation.

Appellant next argues that the trial court erred in denying appellant’s oral request that the jury be given an “accomplice” instruction. N.T. at 419. When an accomplice offers incriminating testimony, a defendant is entitled, upon request, to have the jury instructed that "... the testimony of an accomplice of a defendant, given at the latter’s trial, comes from a corrupt source and is to be carefully scrutinized and accepted with caution; ...” (citation omitted) Commonwealth v. Sisak, 436 Pa. 262, 265, 259 A.2d 428, 430 (1969). See also Commonwealth v. Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385 (1980); Commonwealth v. Upshur, 488 Pa. 27, 32, 410 A.2d 810, 812 (1980). The purpose of such a charge is clear: “a jury should not embrace testimony offered by an accomplice without a full understanding of the unreliability of the source of that evidence.” Commonwealth v. Banks, 454 Pa. 401, 412, 311 A.2d 576, 581 (1973). The source of the unreliability is the fear that an accomplice will incriminate his principal because of “the expectation or hope of lenient treatment when testifying for the Commonwealth.” Pennsylvania Standard Jury Instructions: Criminal § 4.01, (revised 1981) Comment. See also Commonwealth v. Upshur, supra 488 Pa. at 32, 410 A.2d at 812, Commonwealth v. Thomas, 479 Pa. 34, 37, 387 A.2d 820, 822 (1978). “[Wjhen the facts with respect to the participation of a witness in the crime for which the defendant is on trial are clear and undisputed, it is for the court to determine whether or not he was an accomplice, but where the facts are in dispute, or different inferences might reasonably be drawn therefrom, the question whether or not a witness was an accomplice is for the jury.” Commonwealth v. Sisak, supra 436 Pa. at 267, 259 A.2d at 431, quoting Commonwealth v. Brown, 116 Pa.Super. 1, 175 A. 748 (1934). See also Commonwealth v. Mouzon, 456 Pa. 230, 318 A.2d 703 (1974); Commonwealth v. Ciotti, 318 Pa.Super. 549, 465 A.2d 690 (1983), vacated on other grounds, 506 Pa. 10, 483 A.2d 852 (1984). An accomplice charge must be given “not only when the evidence requires an inference that the witness was an accomplice, but also when it permits that inference,” Commonwealth v. Upshur, supra 488 Pa. at 32, 410 A.2d at 812, citing Commonwealth v. Sisak, supra, and it is reversible error for a trial court not to give an accomplice charge where the evidence permits an inference that a witness was an accomplice, see id. Where, however, there is no evidence that would permit the jury to infer that a Commonwealth witness was an accomplice, the court may conclude as a matter of law that he was not an accomplice and may refuse to give the charge. See Commonwealth v. Terval-on, 463 Pa. 581, 593, 345 A.2d 671, 677-78 (1975). The question before us, therefore, is whether here the jury could have permissibly inferred that Taylor was appellant’s accomplice. We do not believe the jury could have.

Section 306(c) of the Crimes Code, 18 Pa.C.S. 306(c), defines an accomplice as:

(c) Accomplice defined. — A person is an accomplice of another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning or committing it; or
(2) his conduct is expressly declared by law to establish his complicity.

See also Commonwealth v. Thomas, supra 479 Pa. at 38, 387 A.2d at 822 (“In other words, an accomplice is an active partner in the planning or commission of the crime”); Com monwealth v. Scoggins, 451 Pa. 472, 480, 304 A.2d 102, 107 (1973) (“An accomplice is one who knowingly and voluntarily cooperates with or aids another in the commission of a crime and may be indicted for the crime with which the accused is charged.”); Commonwealth v. Wilson, 449 Pa. 235, 238, 296 A.2d 719, 721 (1972) (“[The] element of shared criminal intent must be found to be present to justify a finding that an accused was an accomplice.”); Commonwealth v. McFadden, 448 Pa. 146, 150, 292 A.2d 358, 360 (1972) (“To aid or abet in the commission of a crime; one must be an active partner in the intent to commit it.”) An accessory after the fact, that is, one who aids the principal after the offense has been committed, is not an accomplice, see Commonwealth v. Hudson, supra 489 Pa. at 628-29, 414 A.2d at 1385; Commonwealth v. Richey, 249 Pa.Super. 365, 371, 378 A.2d 338 (1977), and foreknowledge that a crime may be committed does not render a person an accomplice, see Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975).

If the jury believed Taylor, they could not have permissibly inferred that he was an accomplice. Appellant was convicted, inter alia, of rape and robbery. Taylor testified, however, that he knew only that appellant had agreed to meet a girl and follow her home. There is nothing in this testimony from which a jury would have been permitted to infer the “intent of promoting or facilitating the commission” of the rape or robbery. 18 Pa.C.S. § 306(c)(1). Nor, without establishing the necessary element of intent, could the jury have further inferred “aid[] or agreefment] ... in planning or committing [the offense]” from Taylor’s act of waiting outside the apartment house or from his position as a passenger in his car. See Commonwealth v. Hudson, supra 489 Pa. at 628, 414 A.2d at 1385-86 (where principal confessed crime to witness and witness was charged with harboring a fugitive because of subsequent aid, held: witness was not an accomplice because he “did not participate in the perpetration of the crime in any way”); Commonwealth v. Tervalon, supra 463 Pa. at 593, 345 A.2d at 678 (where witnesses were associates of militant group and victim was group member “executed” on orders of group, held: court did not err in refusing corrupt source charge as “there was no evidence presented at trial to indicate that [the witnesses] had any role or participation in the ... killing.”); Commonwealth v. Fields, supra 460 Pa. at 319-20, 333 A.2d at 747 (where facts of record disclosed that defendant arrived at crime scene with killer, was present during killing, and asked victim provocative questions, held: evidence insufficient to sustain conviction of defendant as accomplice, for “[t]o ‘aid or abet’ in the commission of a crime one must be an active partner in the intent to commit it[,]” and there was “nothing ... to indicate ... prior knowledge of [the principal’s] lethal intent or that [the defendant] in any way counseled or participated in the shooting.); Commonwealth v. Scoggins, supra 451 Pa. at 480, 304 A.2d at 107 (where witness lived with defendant, witnessed murder, and lived with defendant afterwards, trial court did not err in ruling that she was not an accomplice for, at best, evidence showed she was an accessory after the fact); Commonwealth v. Richey, supra' (where witnesses were wives of principal and accomplice, knew beforehand that robbery was planned, received share of proceeds, and attempted to dispose of weapon after-wards, held: court did not err in ruling as a matter of law that they were not accomplices as they lacked requisite intent). Compare Commonwealth v. Thomas, 479 Pa. 34, 38, 387 A.2d 820 (1978) (reversible error not to give corrupt source charge where witnesses were members of organization purpose of which was commission of “ongoing criminal activity],” and where “members had knowledge of these ongoing criminal efforts and actively participated in the organization’s overall scheme.”); Commonwealth v. Mouz-on, supra (where witnesses were members of gang, one of whom heard members say they were looking for white boys to fight, court erred in refusing corrupt source charge as jury might permissibly have inferred that witnesses were accomplices in subsequent murder); Commonwealth v. Ciotti, supra (where charge was receiving stolen property and witness agreed to store suspicious goods, later known to be stolen, and received $200 in payment, held: jury might permissibly have inferred he was an accomplice despite his report to police the next day.)

The jury might have believed appellant’s testimony, corroborated by that of Bell, and therefore disbelieved Taylor’s. However, even on this view, the jury could not have inferred that Taylor was an accomplice. Appellant testified only that he was not present at the scene of the rape. The only permissible inference to be drawn from this testimony regarding Taylor was that Taylor was the principal. Indeed, this is the inference for which counsel for appellant strenuously contended at trial, and for which he now contends on appeal.

Of course, the jury might have believed Taylor in part and disbelieved him in part. Still, the only evidence that might have supported an inference that Taylor participated in the crime as other than a principal was that of the victim’s keys, found on Taylor’s person by the police. If the jury did not infer from this that Taylor was the principal, it might have inferred that someone gave the keys to Taylor following the rape, but that could show only that Taylor was an accessory after the fact, not an accomplice. See Commonwealth v. Hudson, supra; Commonwealth v. Richey, supra.

We therefore conclude that whether the jury believed or disbelieved Taylor, in whole or in part, it could not have permissibly inferred that Taylor was appellant’s accomplice in perpetrating the rape and the robbery. That being so, the trial court did not err when it denied appellant’s request that it give an accomplice charge, for “[a] trial court is not obliged to instruct a jury upon legal principles [that] ... have no applicability to the presented facts.” See Commonwealth v. Tervalon, supra 463 Pa. at 593, 345 A.2d at 678.

Affirmed.

      . Taylor testified that he had no watch, and his testimony is vague regarding timing. See N.T. at 232; see, e.g., N.T. at 230.

      . Taylor's testimony was corroborated on this point by that of Officer Haggerty of the Bethlehem Police Department. N.T. at 75-78.

      . Taylor’s testimony was corroborated on this point by that of Officer Meixell. According to the officer: He saw Taylor’s car and circled the block to investigate. On his return trip, Taylor flagged him down and asked for directions. He told the officer that he was with a friend who had gone to look for directions. The officer checked the registration to determine whether the car had been stolen, and then gave Taylor directions. Taylor told the officer he would wait in the car until his friend’s return. The officer saw Taylor get back into the car. He identified Taylor at trial as the man he had seen on February 3. N.T. at 67-68. It was Officer Meixell’s check on Taylor’s registration that led to Taylor’s arrest the next day, after the rape had been reported. See infra.

      . Detective Owen McFadden of the Bethelehem Police Department testified as an expert in fingerprint identification. He testified that the prints removed from the light bulb matched appellant’s at from eighteen to twenty-one points of similarity. He further testified that he required at least ten points of similarity before he would express an opinion that sample prints matched those of a suspect. N.T. at 197-99.

      . On at least two occasions, the court was required to respond to behavior in the spectator's section that had as its purpose, the Commonwealth charged, the intimidation of the victim while she testified. See N.T. at 19-20, 32.

        . Appellant also argues that the accomplice charge was required because the jury could have found that Taylor was appellant’s co-conspirator. Brief for Appellant at 3. Section 903(a) of the Crimes Code, 18 Pa.C.S. § 903(a), defines the crime of conspiracy as:
      (a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
      (1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
      (2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
      The act that constitutes the crime is therefore the agreement. There is no evidence in this record to support an inference that Taylor and appellant agreed to commit the crimes of rape or robbery. Therefore no inference that they were co-conspirators would have been permissible.

      . At trial, counsel for appellant attempted to prove that the victim’s and Officer Haggerty’s descriptions of the assailant’s build and clothing matched those of Taylor, not of appellant. See, e.g., N.T. at 55-56, 1313-34. See also Brief for Appellant at 27: "The victim’s description of her attacker, as well as the police description of Taylor, ... all point to Taylor having been the individual who perpetrated the attack.”


author: BROSKY, Judge:

text:
    495 A.2d 552
    Alyce SCATTAREGIA and Joseph R. Scattaregia, Her Husband, Appellant at No. 914 Pittsburgh, 1984, v. Dr. SHIN SHEN WU and Dr. Thomas W. Mering. Appeal of Dr. SHIN SHEN WU, at No. 963 Pittsburgh, 1984.
    Superior Court of Pennsylvania.
    Argued March 6, 1985.
    Filed June 21, 1985.

      Bryan W. Pizzi, II, Washington, for appellants (at 914), for appellee (at 963).
    William D. Phillips, Washington, for Wu, appellant (at 963), for Wu, appellee (at 914).
    James F. Israel, Pittsburgh, for Mering, appellant (at 963), for Mering, appellee (at 914).
    Before BROSKY, WIEAND and LEDERER, JJ.

       Honorable William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   BROSKY, Judge:

This is an appeal from the order denying appellants’ motion for a new trial and entering judgment in this medical malpractice case. Appellees have filed a cross-appeal from the judgment. Of the many issues raised on appeal, the only one we find meritorious and deserving our attention is that issue raised by the appellees on cross-appeal concerning the husband’s award for loss of consortium. Appellees claim that the trial court should have reduced the appellant-husband’s award for loss of consortium by the percentage of negligence the jury attributed to his injured wife. We agree and order the judgment modified.

Appellants instituted an action in trespass for injuries sustained by the wife and for husband’s loss of consortium due to the malpractice of the appellee physicians. The case was tried by a jury. Because there was evidence introduced as to the appellant-wife’s contributory negligence, the trial court charged the jury on comparative negligence.

The jury returned a verdict finding each appellee 25.5% negligent and the appellant-wife 49% negligent. The jury found the wife’s damages to be $25,000 and the husband’s damages to be $5,000.

Appellants then filed a motion requesting the addition of delay damages under Pa.R.Civ.P. No. 238. In answer to appellants’ motion, appellees requested the trial court to mold the verdict by reducing the husband’s consortium damages to reflect the wife’s degree of negligence and limit Rule 238 damages to that reduced amount.

After considering the various post-trial motions, the trial court entered judgment as follows:

Mrs. Scattaregia — 49% of $25,000 $12,250.00
Mr. Scattaregia— 5,000.00
Rule 238 Delay Damages From October 21, 1982 — October 21, 1983 10% of $17,250.00 1,725.00
From October 22, 1983 — February 16, 1984 118 days, $17,250.00 at 10% 565.22
Total amount of verdict $19,540.22

We note at the outset that the trial court’s award to Mrs. Scattaregia should be 51% of $25,000 or $12,750. Pennsylvania’s comparative negligence statute calls for a plaintiff’s damage to be reduced by his negligence. Thus, since Mrs. Scattaregia was found to be 49% negligent, she should be awarded 51% of her damages.

The issue raised on cross-appeal is whether a spouse’s damages for loss of consortium should be reduced by the percentage of comparative negligence attributable to the injured spouse.

There are nine comparative negligence jurisdictions that have considered this issue. Six of those states uphold proportional reduction. Nelson v. Busby, 246 Ark. 247, 437 S.W.2d 799 (1969); White v. Lunder, 66 Wis.2d 563, 225 N.W.2d 442 (1975); Hamm v. City of Milton, 358 So.2d 121 (Fla.1978); Eggert v. Working, 599 P.2d 1389 (Alaska 1979); Maidman v. Stagg, 82 A.D.2d 299, 441 N.Y.S.2d 711 (1981); Runcorn v. Shearer Lumber Products, Inc., 107 Ida. 389, 690 P.2d 324 (1984). Contra, Macon v. Seaward Construction Co., Inc., 555 F.2d 1 (1977) (interpreting New Hampshire law); Lantis v. Condon, 95 Cal.App.3d 152, 157 Cal.Rptr. 22 (1979); Feltch v. General Rental Co., 383 Mass. 603, 421 N.E.2d 67 (1981). Each of the jurisdictions upholding proportional reduction view an action for loss of consortium as being derivative of the injured spouse’s claim. The three comparative negligence jurisdictions opposing reduction declare a loss of consortium action to be independent of the injured spouse’s right to recover. We follow the majority view that an action for loss of consortium is derivative of the injured spouse’s claim.

Pennsylvania courts have long held that an action for loss of consortium is derivative. See, e.g., Little v. Jarvis, 219 Pa.Super. 156, 280 A.2d 617 (1971); Elser v. Union Paving Co., 167 Pa.Super. 62, 74 A.2d 529 (1950); Winner v. Oakland Township, 158 Pa. 405, 27 A. 1110 (1893). The rationale for considering the action derivative is clear.

The consortium claim and the personal injury claim are closely interconnected; together, they represent the total, compensable damages — direct and indirect — suffered as a result of the principal plaintiff’s injury. Viewed in this light, it makes little sense to hold that an injured party’s negligence would bar or limit his recovery for direct injury, but would not affect his spouse’s recovery for indirect injury.
The consortium plaintiff ... has suffered no direct inju-ry____ [His] right to recover is derived, both in a literal and legal sense, from the injury suffered by [his] spouse.

Maidman, supra 82 A.D.2d at 304, 441 N.Y.S.2d at 715.

As in those jurisdictions upholding proportional reduction, because a loss of consortium action has been viewed as derivative its success in this Commonwealth has always been dependent upon the injured spouse’s right to recover. Prior to the adoption of Pennsylvania’s comparative negligence act, an injured spouse’s contributory negligence would completely bar her own claim and would also preclude any recovery by the non-injured spouse for loss of consortium. See Riesberg v. Pittsburgh & Lake Erie Railroad, 407 Pa. 434, 180 A.2d 575 (1962).

Logically extending previous case law to actions affected by the comparative negligence act, we hold that where an injured spouse’s comparative negligence reduces the spouse’s damages in proportion to that negligence, the damages awarded the uninjured spouse for loss of consortium must likewise be proportionally reduced. A contrary result would be inconsistent with the derivative nature of the loss of consortium action. “It is only logical that since his cause of action is derivative, [a husband] can have no better standing in court than [that] vested in his wife.” Nelson, supra 246 Ark. at 255, 437 S.W.2d at 803.

Accordingly, the husband’s damages shall be reduced by 49% to $2,550 and Rule 238 delay damages shall be calculated on damages of $15,300. The order shall be modified to reflect proper judgment in this case as follows:

Mrs. Scattaregia — 51% of $25,000— $12,750.00
Mr. Scattaregia — 51% of $5,000— 2,550.00
Rule 238 Delay Damages
From October 21, 1982 — October 21, 1983
10% of $15,300 1,530.00
From October 22, 1983 — February 16, 1984
118 days, $15,300 at 10% 494.63
$17,324.63 Total amount of verdict

This case is remanded to allow the trial court to modify its order consistent with this opinion. Jurisdiction relinquished.

      . Act of 1978, April 28, P.L. 202, No. 53 § 10 (89), effective June 27, 1978. 42 Pa.C.S. § 7102.

      . This issue has yet to be addressed by a Pennsylvania appellate court. However, at least one Common Pleas Court has determined that the award should be proportionally reduced. Brenna v. Sabolsice, 13 D. & C.3d 583 (1980).

      . This is the result called for in the Restatement of Torts (Second) § 494 which provides:
      § 494. Negligence of Person for Whose Death or Loss of Services Action is Brought.
      The plaintiff is barred from recovery for an invasion of his legally protected interest in the health or life of a third person which results from the harm or death of such third person, if the negligence of such third person would have barred his own recovery.

      . The contrary result of allowing complete recovery against the third party tort-feasor and causing the third party tort-feasor to seek proportional contribution from the injured spouse would be viewing the loss of consortium action as one independent of the injured spouse’s action. See Maidman, supra 84 A.D.2d at 304, 441 N.Y.S.2d at 715.


author: OLSZEWSKI, Judge:

text:
    495 A.2d 554
    COMMONWEALTH of Pennsylvania v. Kevin OTTO, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 3, 1985.
    Filed June 21, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

      Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Appellant seeks discharge of his convictions for attempted burglary and criminal trespass. He argues (1) that the lower court erred in denying his motion to supress the policeman’s observation of blood on his (appellant’s) hand; and (2) that the evidence was insufficient to sustain appellant’s convictions. After carefully reviewing the record and the briefs in this case, we reject appellant’s contentions.

The record of appellant’s suppression hearing establishes the following facts. At approximately 1:05 a.m., May 14, 1981, policeman Paul Busillo received a radio call of a broken window at a drugstore in the Haregate Shopping Center. Minutes later he arrived at the shopping center and observed two men three to four feet from the broken window and facing toward it. Appellant was identified in court as one of these men.

The officer watched the men turn toward his car. They then walked away from the window and in front of his car. The officer called the men to him and asked them about the window. Both men responded that they had seen the window but that they didn’t know anything about it. At this point, the men were standing seventy-five to one hundred feet from the broken window. The officer said, “Let’s go back to the window and check it out.” Appellant and the other man walked back to the window. The officer, with one hand on his night stick and the other on his gun, followed them.

The officer testified that he looked at the broken window and saw blood on the glass. He then observed blood on appellant’s hand. At that point, the officer placed appellant and the other man in custody.

Arguing that he had been detained when the officer walked him to the broken window, appellant moved to suppress the officer’s observations of his (appellant’s) bloody hand. The lower court denied the motion. Appellant was tried and convicted of attempted burglary and criminal trespass. His post-verdict motions denied, appellant was sentenced to two to four years imprisonment. This appeal followed.

We agree with appellant that the officer’s actions, causing appellant to walk with him some 75 or 100 feet back to the broken window, constituted a “stop” implicating Fourth Amendment considerations. See Commonwealth v. Jones, 474 Pa. 364, 372-373, 378 A.2d 835, 840 (1977), cert. denied, 435 U.S. 947 (1978) (asking what “a reasonable man, innocent of any crime, would have thought had he been in the defendant’s shoes”). Appellant contends that the officer, by directing appellant’s actions, effected an illegal arrest. The lower court, rejecting that contention, concluded that the officer observed the appellant’s bloody hand in the course of a legal investigatory stop. For the reasons below, we find that the lower court properly denied appellant’s motion.

To test the legality of a stop absent probable cause to arrest, we ask “whether the officer’s action was justified at its inception and whether it was reasonably related in scope to the circumstances that justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The central inquiry, we must emphasize, is the reasonableness under all the circumstances of this particular governmental invasion of appellant’s personal security. Id. at 19, 88 S.Ct. at 1878.

In the instant case, the officer responding to a late night report of a broken window found two men standing before the four to five foot break. The men looked toward the officer, then walked away from the broken window. At that point, the officer could reasonably have suspected that criminal activity was afoot. See Commonwealth v. Williams, 298 Pa.Super. 466, 444 A.2d 1278, 1280 (1982). The initial stop was justified.

We turn then to the second inquiry, the propriety of the officer’s actions subsequent to the initial stop. “And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?” Id. 392 U.S. at 21-22, 88 S.Ct. at 1880. The officer standing alone with the men in a deserted parking lot needed to maintain the status quo while he looked at the broken window. Briefly detaining the men and requiring them to accompany him to the window seems a reasonable course of action under the circumstances of this case.

We find no merit to appellant’s remaining claim. Appellant challenges the sufficiency of the evidence to sustain his convictions for attempted theft and criminal trespass. Sitting on appeal, we must view the evidence in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Green, 464 Pa. 557, 347 A.2d 682 (1975). We ask whether, accepting as true all the evidence all reasonable inferences therefrom upon which if believed the finder of fact could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes for which he has been convicted. Commonwealth v. Bayard, 453 Pa. 506, 509, 309 A.2d 579, 581 (1973).

Appellant’s argument reduces to two contentions, that “mere presence” is not enough and that intent was never established. With respect to appellant’s first claim, it is true that proof of the mere presence of a person at the scene of a crime does not establish that person’s guilt. Commonwealth v. Weaver, 309 Pa.Super. 509, 455 A.2d 1199 (1982). Something more is needed. There must be additional facts which point to that individual’s active participation in the crime. Commonwealth v. Smith, 490 Pa. 374, 416 A.2d 517 (1980). In the instant case, we find proof of participation in the blood on the broken window and the blood on appellant's hand.

In the alternative, appellant argues that the Commonwealth has established at most a case of criminal mischief. Again, we disagree. The requisite intent to enter the building and commit a crime therein may be reasonably inferred from a concurrence of factors including the hour, the location and the size of the opening. We are satisfied that the Commonwealth has met its burden.

Judgment of sentence affirmed.

THE COURT OF COMMON PLEAS

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

CRIMINAL TRIAL DIVISION

JUNE SESSION, 1981

NOV 21 1984

OPINION

FACTUAL BACKGROUND

This appeal is from judgments of sentence for Attempted Burglary, 18 Pa., C.S. § 901 and Criminal Trespass, 18 Pa.C.S. § 3503. The appellant challenges, specifically, a ruling against his motion to suppress certain evidence prof-erred by the Commonwealth and the sufficiency of the evidence that persuaded this court to find him guilty of the above charges.

This court heard evidence and arguements presented by the Commonwealth and defense counsel at the suppression hearing and, in accordance with the applicable Rules of Criminal Procedure, denied the motion to suppress. The defendant waived his right to a trial by jury and pled not guilty to all charges. At trial, this court, on motion by the Commonwealth, incorporated the admissible evidence from the suppression hearing and heard additional evidence submitted by the Commonwealth and the defense. The court found Mr. Otto guilty of the aforementioned charges, denied his post-verdict motions and sentenced him to two to four years in the county prison.

The following facts were established at the suppression hearing and incorporated by reference into the trial record. On May 14, 1981, at approximately 1:05 a.m., policeman, Paul Busillo, received a radio call of a broken window at a drug store in the Haregate Shopping Center (N.T. 9). He arrived minutes later in a marked patrol car and observed two males, who were three to four feet from and facing the drugstore’s broken window. The appellant was identified in court as one of those males. The officer watched the men turn from the window and towards the direction of his patrol car as it pulled into the parking lot (N.T. 11). They then walked away from the window and in front of the patrol car where Officer Busillo, his suspicions aroused, asked them about the window and whether they would walk with him to it. The co-defendants walked with the officer towards the window and as they approached it, the officer noticed that the appellant’s hand was cut and bleeding. When they reached the drugstore window, the officer observed what he concluded to be blood on the inside and outside of the broken store window. At that point, the defendants were placed into custody. The appellant argued that he was unlawfully detained when the officer accompanied him to the broken window and that the officer’s observations of his bloody hand were suppressable as tainted fruit of the officer’s illegality. The argument was rejected and the motion to suppress was denied.

At trial, this court heard further testimony from the Commonwealth’s witness and from defense witnesses. The officer testified that the store was closed for business. He also testified that there was a four feet by five feet area broken out of the window; an area of the window that a person could definitely climb through to get into the store. A small counter and the store’s showcases were next to the area where the store window was broken.

LEGAL ANALYSES

An order denying a motion to suppress shall be upheld on review if the factual findings of the lower court are supported by the record and the legal conclusions drawn therefrom are not in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 Commonwealth. v. Jackson, 497 Pa. 591, 595, 442 A.2d 1098, 1100 (1982). This court believes there is uncontradicted evidence to support its factual finding that the officer observed the appellant’s bloody hand in the course of a legal investigatory stop. It is clear that, in appropriate circumstances, a police officer is free to approach a citizen and address questions to him. See, e.g., Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). The Supreme Court approved the procedure whereby a police officer might detain an individual for a short period of time if the officer suspected that the individual had engaged or was presently engaging in criminal activity, notwithstanding the fact that his suspicion did not rise to probable cause to arrest that individual. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). It is contended, here, that the officer could point to and relied on specific and articuable facts which, taken together with the rational inferences from those facts, reasonably justified the brief detention of the appellant for investigatory purposes. See, Commonwealth v. Williams, 287 Pa.Superior Ct. 19, 429 A.2d 698, Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The police officer responded, within minutes, to a radio call of a broken store window and upon arriving at the scene observed the appellant and another male directly in front of and only a few feet from the broken window. They turned in the direction of the officer’s patrol car as it entered the parking lot and then, walked away from the store window and in front of the car. The totality of the circumstances, including the message in the radio call, the position of the appellant in relation to the broken store window, and his movement away from the window as the patrol car approached the scene led the officer reasonably to conclude in light of his experience that criminal activity may be afoot. The brief detention and interrogation of the appellant for investigatory purposes were appropriate under these circumstances. After the officer lawfully stopped the appellant, he observed, in plain view, the appellant’s bloody hand. The observation, therefore, was evidence obtained as the fruit of a legal stop even though there was no probable cause to make an arrest. Commonwealth v. Williams, supra. Accordingly, this court believes that the motion to suppress was properly denied.

We turn now to the appellant’s remaining contentions, which solely concern the sufficiency of the evidence upon which he was convicted.

On appeal from a criminal conviction, the test for evaluating the sufficiency of the evidence is whether, viewing the entire record in the light most favorable to the Commonwealth, a finder of fact could reasonably have found that all elements of the crime charged had been proved beyond a reasonable doubt. Commonwealth v. Lowe, 460 Pa. 357, 358, 333 A.2d 765, 766 (1975), Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973). The Commonwealth may sustain its verdict by means of wholly circumstantial evidence. Commonwealth v. Dawson, 464 Pa. 254, 346 A.2d 545 (1975). The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence. Commonwealth v. Smith, 502 Pa. 600, 467 A.2d 1120, 1122 (1983).

The crimes charged here are defined as follows: “A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S. § 901. “A person commits the offense of Criminal Trespass if, knowing that he is not licensed or privileged to do so, he breaks into any building or occupied structure or separately secured or occupied portion thereof.” 18 Pa.C.S. § 3503. We have, here, more than a mere suspicion or conjecture. See, Commonwealth v. Rambo, 488 Pa. 334, 412 A.2d 535 (1980). The facts in the case at bar show that a window was broken, there was blood on the hand of the appellant, blood on the broken window, and the broken area of the window was large enough for a person to enter the store through it. The Superior Court has held that when one enters a building by force, he did so with the intent to commit a crime therein. Commonwealth v. Tingle, 275 Pa.Super. 489, 419 A.2d 6, 9 (1980); Commonwealth v. Lynch, 227 Pa.Super. 316, 323 A.2d 808, 810 (1974). It is clear, a fortiori, that when one attempts to enter a building by knocking out an opening in a window of that building, it is with the intent to commit a crime inside. This court believes that the requisite elements of the above offenses are proven, circumstantially, where, as here, a person breaks the window of a closed drugstore at a time and place where there are few, if any, persons around to report a crime and the window breakage is sizable and accessible enough to permit the entry of that person into the store. This court recognizes that mere presence at the scene of a crime presents insufficient evidence to sustain a verdict and, therefore, points to additional facts which clearly distinguish the case at bar from the cases relied on by the appellant. In each case cited by the appellant, there was a dearth of evidence linking the defendant with any of the acts that would constitute a substantial step towards the commission of a crime. See, Commonwealth v. Smith, 264 Pa.Super 303, 399 A.2d 788 (1979) (although appellant was seen standing some ten feet away from the premises looking towards it, a window was broken, a screen removed, and he was seen walking away from the scene a short time later, the evidence was insufficient for attempted burglary); Commonwealth v. Johnson, 272 Pa.Super. 375, 415 A.2d 1246 (1979) (Evidence that defendant was standing at 11:15 p.m. in front of store door, that a screwdriver had been wedged into the door jam and that the defendant began to walk away as a police patrol car approached was insufficient to sustain a conviction of attempted burglary; Commonwealth v. Beauford, 286 Pa.Super. 297, 428 A.2d 1000 (1981) (Evidence that juvenile defendant was observed late at night standing in front of the beer distributor’s door, which was later discovered to have been jimmyed open and the juvenile ran upon the approach of the police officer was insufficient to sustain a conviction for attempted burglary).

In the case before us, the appellant was less than four feet and not ten feet from the window when he was observed by the officer (as distinguished from Smith, supra). He was not a juvenile. Hence, it was unlikely that he walked away from the window when the officer approached the scene due to the unreasonable sense of fear that a younger person may experience (as distinguished from Beauford, supra).

There is a more specific and critical distinction between this case and the others, however, that provides sufficient grounds for this court’s verdict. This distinction is the presence of facts that link the appellant’s presence to the breaking of the window which, in turn, constitutes a substantial step towards the commission of the crime of burglary. The appellant’s bloody hand and the blood stains on the broken window provide the nexus needed to sustain this conviction.

For the foregoing reasons, the court believes it ruled properly in denying the appellant’s motion to suppress and that the Commonwealth proved each and every element of the offenses charged beyond a reasonable doubt.

BY THE COURT:

/s/Braxton

J.

      . In a suppression motion, the Commonwealth bears the burden of proving by a preponderance of the evidence that the challenged testimony is admissible. Pa.R.Crim.P., Rule 323(h), 42 Pa.C.S.A.; Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977). If the suppression motion has been denied, the appellate court “will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’’ Id., 473 Pa. at 566, 375 A.2d at 1262, quoting Commonwealth v. Kichline, 468 Pa. 265, 280, 361 A.2d 282, 290 (1976).

      . The officer had flipped off the leather strap holding the gun in its holster.

      . We note that appellant never resisted the officer. Appellant’s acquiescence first in approaching the officer then in accompanying him back to the window would support a finding that the officer’s actions were legal under the circumstances of this case. The officer, of course, failed to advise the men that they could refuse his directive to return to the window. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1972).