author: DEL SOLE, Judge:

text:
    546 A.2d 690
    David GOELLER, Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 27, 1988.
    Filed Aug. 23, 1988.

      Lawrence L. Robinson, Philadelphia, for appellant.
    Eileen M. McGuire, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and DEL SOLE, JJ.
   DEL SOLE, Judge:

This appeal was filed following the entry of the trial court order which vacated the Award of Arbitrators dated July 28,1987 and stated that a new Panel of Arbitrators shall be convened to address the Appellee’s uninsured motorist claim. Based on the scope of review provided for this action under the provisions of Statutory Arbitration, 42 Pa.C.S.A. § 7301, we reverse.

The relevant facts of this case are as follows: The Appellee/Plaintiff filed an uninsured motorist claim against the Appellant/Defendant in regard to an automobile accident. Pursuant to the arbitration clause of the parties’ insurance contract, an Arbitration Panel was assembled and presided over a hearing on September 12 and 25, 1986. The Panel of three arbitrators rendered a decision with the majority deciding in favor of the Appellant. The decision was stated in a letter from the Panel’s neutral arbitrator (Ettinger). The letter contained the following statement of award:

The Arbitrators find as follows:
Robert J. Coleman and Leonard L. Ettinger find for the
Defendant, Liberty Mutual Insurance Co.
Mitchell Greenspan dissents. He finds for the Plaintiff,
David Goeller.

This letter was signed by Ettinger, and a copy was sent to the attorneys for both parties and to the other two members of the Arbitration Panel. The letter was filed with the Prothonotary of Philadelphia County the following day.

The next day, Arbitrator Greenspan sent a letter to Ettinger expressing his dissatisfaction with the statement of award. He stated that his listed vote was incorrect and that he was not consulted prior to the vote. He alleged misconduct by the arbitrators who authored the decision as he felt that they had discussed the case outside his presence. Finally, Greenspan requested that the Panel immediately void the letter and withdraw as Arbitrators. Four days later, Ettinger wrote in response that he was withdrawing his award and also withdrawing from the Arbitration Panel.

On August 7, 1987, the Appellant filed a Petition to Confirm Award of Arbitrators. On August 24, 1987, the Appellee filed an Answer and New Matter to Petition to Confirm Award of Arbitrators and a Petition to Convene a New Arbitration Panel. Finally, on November 20,1987, the trial court issued a Memorandum and Order which vacated the July 28 award of the arbitrators and ordered that the parties convene a new arbitration panel to re-try this case. From this order the Appellant appeals. We reverse.

The scope of review of arbitration awards is of major importance in this case. The insurance contract in question states that “Arbitration shall be conducted in accordance with the Pennsylvania Arbitration Act of 1927” (now amended by the Uniform Arbitration Act of 1980). Section 501(b) of Act 1980, Oct. 5. P.L. 693, No. 142, is found in the historical section of 42 Pa.C.S.A. § 7302 and states:

The provisions of 42 Pa.C.S. § 7302(d)(2) (relating to special application) shall be applicable to any nonjudicial arbitration pursuant to:
... (2) An agreement heretofore or hereafter made which expressly provides for arbitration pursuant to the former provisions of the Act of April 25, 1927 (P.L. 381, No. 248), relating to statutory arbitration.

See Ostroff v. Keystone Insurance Company, 357 Pa.Super. 109, 515 A.2d 584 (1986). Thus, the statutory standard of review applies in this case as the parties’ insurance contract expressly adopts the 1927 Act. This standard of review is set forth at 42 Pa.C.S. § 7302(d)(2) which provides:

(2) Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this sub-chapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.

Under statutory arbitration, there also exists five specific situations in which a court may vacate an arbitrators’ award. The general rule is found at 42 Pa.C.S.A. § 7314(a)(1) which states:

(1) On application of a party, the court shall vacate an award where:
(i) the court would vacate the award under section 7341 (relating to common law arbitration) if this subchapter were not applicable;
(ii) there was evident partiality by an arbitrator appointed as a neutral or corruption or misconduct in any of the arbitrators prejudicing the rights of any party;
(iii) the arbitrators exceeded their powers;
(iv) the arbitrators refused to postpone the hearing upon good cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section 7307 (relating to hearing before arbitrators), as to prejudice substantially the rights of a party; or
(v) there was no agreement to arbitrate and the issue of the existence of an agreement to arbitrate was not adversely determined in proceedings under section 7304 (relating to court proceedings to compel or stay arbitration) and the applicant-party raised the issue of the existence of an agreement to arbitrate at the hearing.

The Appellant’s first contention is that the Appellee failed to prove by clear, precise and indubitable evidence that the arbitration award was the product of fraud, misconduct or other grave irregularity. Upon careful review of this issue, we find that the Appellee did not present any evidence to manifest misconduct or fraud by the arbitration panel. Thus, the trial court was unwarranted in vacating the arbitrators’ award on the basis of misconduct or any other ground.

In Reinhart v. State Automobile Ins. Assoc., 242 Pa.Super. 18, 363 A.2d 1138 (1976), this court set forth a test to determine the sufficiency of evidence in overturning an arbitration award. The Reinhart court stated that, “the petitioner must show by clear, precise, and indubitable evidence that he was denied a hearing, or that fraud, misconduct, or other irregularity caused the entry of an unjust, inequitable, or unconscionable award.” 363 A.2d at 1140. The above court further stated that such proof may be accomplished by “affidavits, depositions or otherwise,” and that every presumption favors the validity of the arbitration award. Id. at 1141.

In the instant case, the trial court lacked such clear and indubitable evidence. The trial court relied upon 42 Pa.C. S.A. § 7314(a)(1)(h) and (iii) as a basis for vacating the panel’s award. However, the Appellee failed to introduce evidence of the arbitrators’ alleged misconduct. The main evidence relied upon by the Appellee was the above two letters of correspondence between the involved arbitrators. The July 29 letter from Greenspan to Ettinger insinuated the latter’s misconduct, but it did so in an ambiguous manner. The letter did not contain clear accusations, let alone unquestionable evidence of the arbitrators’ misconduct. No evidence exists to manifest that all arbitrators were not present at the arbitration hearing or that any arbitrator was precluded from deliberating. In short, the trial court erred in finding the arbitration award to be the product of fraud or misconduct as the Appellee failed to meet his burden of proof.

We next address the Appellant’s contention that the neutral arbitrator (Ettinger) lacked the power to withdraw the award of the arbitration panel. In order to resolve this issue, we must determine whether the arbitrators issued a final award in this matter. If the letter of July 28 constituted a final award, then Ettinger did not possess the power to withdraw the award. The only way a final arbitration award can be vacated or modified, is if either party submits an application to the trial court and the court grants the application. See 42 Pa.C.S.A. §§ 7314, 7315.

In regard to arbitration awards, 42 Pa.C.S.A. § 7310(a) states:

(a) General rule — The award of the arbitrators shall be in writing and signed by the arbitrators joining in the award. The arbitrators shall deliver a copy of the award to each party personally or by registered or certified mail, or as prescribed in the agreement to arbitrate.

Furthermore, 42 Pa.C.S.A. § 7307(a)(5) states that:

The hearing shall be conducted by all the arbitrators but a majority may determine any issue and render a final award. If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators appointed to act as neutrals may continue with the hearing and determine the controversy.

In Obdyke v. Harleysville Mutual Ins. Co., 299 Pa.Super. 298, 445 A.2d 763, 765 (1982), affirmed 500 Pa. 107, 454 A.2d 984, the court held that “a decision agreed to by two of the three arbitrators is as binding-has the same effect-as a decision agreed to by all three arbitrators.”

Based on the above statutory and case law authority, we find that the July 28 letter constituted a binding and final award by the arbitration panel; therefore, Ettinger lacked authority to withdraw this award. The letter constituting the final award conformed very closely to the relevant statutory authority. The award of a majority of the arbitration panel (two) is legally binding on the parties unless the agreement states otherwise. In the parties’ insurance contract, the arbitration section expressly states, “A decision agreed to by two of the arbitrators will be binding.” Although the other member of the panel majority, Coleman, did not sign the award letter, his concurrence in the award has never been challenged. Finally, the letter rendering the award was sent to both parties the day after it was written and signed.

Thus, we find that the instant arbitration award is binding on the involved parties, and that the trial court erred in vacating the award. We note that the arbitration process is an vital part of our legal system, and its integrity should not be jeopardized by giving the arbitrators’ personal disputes precedence over otherwise valid awards. The arbitration process is a valuable alternative to litigation, and a strong presumption exists in favor of an arbitration panel’s final award.

ORDER REVERSED.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    546 A.2d 694
    In re DAVID L.C. Appeal of EDNA C.
    Superior Court of Pennsylvania.
    Submitted April 27, 1988.
    Filed Aug. 24, 1988.

      Samuel C. Totaro, Jr., Feasterville, for appellant.
    William W. Norvell, III, Assistant Public Defender, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

In this custody dispute between the mother and great-grandmother of David L.C., the trial court awarded custody of David to his great-grandmother. The mother appealed.

Edna C. had been abandoned by an alcoholic mother and had been raised, together with her two brothers, by her grandmother. Edna was a superior athlete, with a demonstrated skill in the game of basketball. While attending school in Pittsburgh, she became pregnant at the age of fourteen. At the age of fifteen, on February 23, 1984, she gave birth to David. She took her infant child to Philadelphia and left him with her grandmother, Jane M., until she could find an apartment in Pittsburgh. After several weeks, the child was returned to Pittsburgh where Edna had obtained an apartment and a baby-sitter. In July, however, Edna took the child back to Philadelphia and left him with Jane M. Subsequently, Edna went to live with her basketball coach in Pittsburgh and made plans to continue her education. The child remained in Philadelphia with Jane M., where he has continued to live. The parties agree that the child has been adequately cared for, is physically and emotionally well, and that a strong and loving relationship has developed between David and his great-grandmother. In the latter part of 1984, Edna completed counseling and decided to surrender the child for closed adoption. Jane M. objected to a closed adoption, and when Edna sought to take the child back to Pittsburgh for that purpose, Jane refused to surrender him. Jane M. made arrangements for the child to be cared for by the Pringles, who were friends of hers, when she worked nights (11 p.m. to 7 a.m.) as a practical nurse and, in May, 1986, took early retirement so that she could care for the child full time.

In April, 1985, Jane M. filed a petition to confirm custody; and in July of 1985, Edna filed a petition for writ of habeas corpus. The two actions were consolidated and were heard before the Honorable Nicholas Cipriani. Edna testified that if she were awarded custody, she would deliver the child to an adoption agency, surrender all rights to the child, and terminate all relationship and contact with the child. Jane M. is now 64 years of age, and David is four years of age.

In this case, as in all custody determinations, a court’s paramount concern must be for the best interests of the child. In reviewing a trial court’s determination, an appellate court is not bound by the legal conclusions made by the trial court, nor must a reviewing court accept facts unsupported by competent evidence on the record. Robinson v. Robinson, 505 Pa. 226, 236, 478 A.2d 800, 806 (1984), quoting Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295-296, 368 A.2d 635, 637 (1977). Issues of credibility or weight of testimony, however, must be left to the trial court, which has had the opportunity to observe the parties and witnesses. Id. “Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge.” Lombardo v. Lombardo, 515 Pa. 139, 148, 527 A.2d 525, 529 (1987), quoting Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. 591, 597-598, 296 A.2d 838, 841 (1972). On appeal, we may only modify a custody determination if we find that the trial court’s judgment is “manifestly unreasonable as shown by the evidence of record.” Murphey v. Hatala, 350 Pa.Super. 433, 439, 504 A.2d 917, 920 (1986), appeal denied, 516 Pa. 634, 533 A.2d 93 (1987), citing Mielcuszny v. Rosol, 317 Pa. 91,176 A. 236 (1934); Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981).

Although Jane M. is the great-grandmother of the child, her rights vis-a-vis those of the child’s mother are no greater than those of any other third party. Commonwealth ex rel. Miller v. Miller, 329 Pa.Super. 248, 254, 478 A.2d 451, 454 (1984); In re Custody of Hernandez, 249 Pa.Super. 274, 287, 376 A.2d 648, 654-655 (1977).

When the judge is hearing a dispute between the parents, or a parent, and a third party, ... [t]he question still is, what is in the child’s best interest? However, the parties do not start out even; the parents have a “prima facie right to custody,” which will be forfeited only if “convincing reasons” appear that the child’s best interest will be served by an award to the third party. Thus, even before proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, 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 bring the scale up to even, and down on the third party’s side.

Ellerbe v. Hooks, 490 Pa. 363, 367-368, 416 A.2d 512, 513-514 (1980), quoting In re Custody of Hernandez, supra, 249 Pa.Superior Ct. at 286, 376 A.2d at 654.

Although a third party must carry a heavy burden to prove that he or she can best provide for the child, it is not necessary to show that the natural parent is unfit. Since the child’s best interests always govern, factors other than the fitness of the natural parent must also be weighed. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 328, 421 A.2d 157, 161 (1980); In re Custody of Hernandez, supra. In the instant case, the natural mother made it clear that, if successful in obtaining custody of her son, she did not intend to care for him personally but would, instead, place him immediately in a closed adoption situation calculated to sever all contact between the child and his mother and all natural relatives. It was in this setting that the trial court was called upon to determine whether Jane M. could better provide for the welfare of David.

To assist it in making this determination, the hearing court ordered that David be examined by a family court psychiatrist. The child had also been examined a year earlier. On the basis of these reports, the court observed:

The most recent report concluded that the child has “no major mental disorder” and has “essentially age-adequate development, with possible aspects of hyperactive behavior.” (Report of Psychiatrist, P. 3) The report states that [Jane M.] was “able to firmly and authoritatively set limits with the child,” although “she relates that the child is rather active in the home and this activity is quite difficult for [Jane M.] to manage ... She again stated that as much as she loves and cares for the child, she realizes certain physical needs will [be] present for the child and herself which might make it most beneficial for the child to be adopted by the Pringle couple.” (Report of Psychiatrist, P. 3) In its conclusion, the report states that, “It is clear, from interview today, that [Jane M.] has invested a great deal of time with this child but also is aware of the shortcomings and limitations, particularly, as the child gets older and so does she ... If the child's future is such that he will not remain with [Jane M.], then I suggest that ample time on a graduated basis be granted, to help this child and any significant adults (who will play a role into his life), to accommodate to change, build trust and try to minimize any separation difficulty.” (Report of Psychiatrist, P. 4)

The trial court concluded, therefore, that bonding had already occurred between the child and his great-grandmother and that the best interests of the child would not be served by a precipitous termination of the relationship.

Appellant contends that the trial court placed too much weight on the psychological bonding which had occurred between the child and his great-grandmother. It is correct, of course, that prior decisions of this Court have held that psychological bonding between a child and a third person, although significant, will not ordinarily outweigh the important interest which a natural parent has in the custody of his or her child. Therefore, the psychological bonding between the child and a third person is usually not an adequate reason for depriving a fit parent of his or her child. See: Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987) (hearing court erred in weighing too heavily psychiatrist’s testimony regarding psychological bonding and in finding that these bonds outweighed mother’s right to custody of her children); In re Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984) (psychological bonding with third party is an important factor, but court must consider all factors in determining best interest of child); In re Desiree B., 304 Pa.Super. 461, 468-469, 450 A.2d 1003, 1007 (1982) (“The question of bonding should not be the only one or the deciding factor.”). This is because the courts recognize that “the blood relationship of parenthood has traditionally served and continues to serve as our society’s fundamental criterion for allocating control over and responsibility for our children____” Ellerbe v. Hooks, supra, 490 Pa. at 369, 416 A.2d at 514.

To award David to his natural mother in the instant case, however, would be to guarantee the termination of all vestiges of the blood relationship between parent and child. To remove David from the home of his great-grandmother would be to require him to begin his life anew in the home of a non-relative stranger, without any future communication with the blood relatives whom he has come to know and rely upon. In the face of this, the trial court could properly place greater weight on the bonding which already had taken place between the child and his great-grandmother. Albright v. Commonwealth ex rel. Fetters, supra, 491 Pa. at 327, 421 A.2d at 160. This bonding outweighed the natural mother’s asserted right to place the child for adoption.

Edna argues further that the psychological bonding between the great-grandmother and the child is, in part, the result of Jane M.’s “deceptiveness and cunning” in delaying these proceedings and in refusing to surrender David to his mother. She argues that the trial court, in fact, rewarded Jane M. for improper conduct. See, e.g.: Commonwealth ex rel Grimes v. Yack, 289 Pa.Super. 495, 433 A.2d 1363 (1981). The trial court made no finding of bad faith on the part of the great-grandmother, and on the record before us, it is clear that there is no basis for this Court to substitute its judgment for that of the trial court. Edna’s assertion that Jane M. was guilty of bad faith depended on the credibility of witnesses and was an issue wholly within the province of the trial court.

We, like the trial court and Jane M. herself, must necessarily be concerned about the possibility that the child’s great-grandmother may, because of her age, become unable to care for David as he becomes older. We are also aware that as David becomes older the possibility of his being adopted into an established family setting will recede and ultimately disappear. The circumstances surrounding David’s birth and early life have made his custody an issue requiring the trial court to exercise Solomonic wisdom. All solutions available to the court contained potential pitfalls. Nevertheless, with respect to the alternatives available to it, the trial court selected for young David a homelife bounded by the stability, care, and natural love which have in the past come from the great-grandmother who also raised the child’s mother. In so doing, the court did not abuse its discretion.

The trial court’s order, therefore, is affirmed.

      . The trial court observed that this procedure was improper and that Pa.R.C.P. 1915.3(a) required the filing of a complaint. Nevertheless, the trial court treated the petition as a complaint and entertained the merits thereof.

      . With respect to Edna’s desire to place David in a closed adoption situation, the trial court commented:
      It thus seems quite apparent that the mother’s overriding concern here is to shield her identity from her son. We are not saying that this is an improper motivation, for certainly thousands of adoptions involve similar considerations. As a college student with bright prospects in the sports world (N.T. 61), it is readily understandable why she would want to avoid the possibility of contact from her son during the next stage of her life. However, it should also be clear that in trying to sever all ties between David and the world he now knows, the mother is primarily motivated by a purpose other than the child’s best interest.

      . The trial court observed:
      We obviously believe that this is a case that should be settled on the basis of some alternative other than the two available options of closed adoption by unknown third parties or continued custody by the great-grandmother. However, given the two choices before us, we have no doubt that the child’s best interests mandate a finding that custody remain at this time with [Jane M.].

      . The record discloses that Jane M., because of her age, has also given consideration to the possibility of David’s adoption, albeit in an open setting which would not sever completely David’s relationship with his natural family. The trial judge, however, has made it clear that the award of custody to the great-grandmother was based on his conclusion that the best interests of the child would be served by allowing custody to remain with the child’s great-grandmother, who is presently able to care for him. The matter of possible future adoption and the right of Jane M. to consent thereto were not decided by the trial court and are not now before this Court.


author: HOFFMAN, Judge:

text:
    546 A.2d 1122
    COMMONWEALTH of Pennsylvania, Appellant, v. Brian K. ANTHONY. COMMONWEALTH of Pennsylvania v. Brian ANTHONY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 21, 1988.
    Filed July 19, 1988.
    Reargument Denied Sept. 6, 1988.

      Frances G. Gerson, Assistant District Attorney, Philadelphia, for Com., appellant (at 1565) and appellee (at 1723).
    Mary M. Zell, Philadelphia, for Anthony, appellant (at 1723) and appellee (at 1565).
    Before OLSZEWSKI, KELLY and HOFFMAN, JJ.
   HOFFMAN, Judge:

These are consolidated cross-appeals from the judgment of sentence for aggravated assault. The Commonwealth contends that the trial court erred in arresting judgment on the felonious aggravated assault conviction and entering judgment for misdemeanor aggravated assault. In his cross-appeal, appellant-Anthony (hereinafter “Anthony”) contends that the trial court erred in excluding the testimony of his alibi witnesses. For the reasons set forth below, we conclude that Anthony’s cross-appeal is meritless. Because we agree with the Commonwealth’s contention, however, we vacate the judgment of sentence for misdemeanor aggravated assault, reinstate the conviction for felonious aggravated assault, and remand for resentencing.

Brian Anthony was arrested on August 28, 1984 and charged with aggravated assault and related charges. Following a non-jury trial, appellant was convicted of felonious aggravated assault, possession of an instrument of crime, carrying a firearm without a license, and recklessly endangering another person. Following argument on post-verdict motions, the court arrested judgment on the felonious aggravated assault conviction and entered judgment for misdemeanor aggravated assault. Anthony was sentenced to an aggregate term of twenty-three-to-forty-six months imprisonment. The Commonwealth filed a timely notice of appeal, challenging the arrest of judgment, and Anthony filed a cross-appeal.

I. ANTHONY APPEAL

In his cross-appeal, Anthony contends that the trial court erred in excluding the testimony of his alibi witnesses. The Rules of Criminal Procedure provide that a defendant who intends to present a defense of alibi must file a notice of intention to claim the defense. Pa.R.Crim.P. 305(C)(1)(a). The notice must specify the place or places where defendant claims to have been at the time the offense was committed as well as the names and addresses of witnesses who will testify to support the defense. Id. The purpose of the Rule is to insure “both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.” Commonwealth v. Fernandez, 333 Pa.Super. 279, 289, 482 A.2d 567, 572 (1984) (quoting Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970)). Rule 305 further provides that

If the defendant fails to file and serve notice of alibi defense ... the court at trial may exclude entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the defendant, or may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require.

Id. at 305(C)(1)(d).

Here, at trial, Anthony presented an alibi defense. He testified that he was at a friend’s house watching a movie at the time of the shooting. N.T. February 13, 1985 at 52-53. In addition, Anthony attempted to call Jason Ruffin and a second unnamed person as witnesses to corroborate his defense. He failed, however, to file the required notice of alibi defense until the morning of the trial. The court prohibited the alibi witnesses from testifying, concluding that Anthony’s failure to give adequate notice of his defense denied the Commonwealth the opportunity to investigate the alibi. Id. at 34-35. Anthony failed to request a continuance to allow the Commonwealth to investigate his defense. Accordingly, because the court was authorized to exclude this testimony under Rule 305(C)(1)(d), we conclude that the court did not err in prohibiting the alibi witnesses from testifying.

In the alternative, Anthony argues that trial counsel was ineffective for failing to timely file a notice of intention to present the defense of alibi. The determination whether counsel rendered ineffective assistance is arrived at through a two-prong test. First, we must ascertain whether the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1983). Second, if appellant’s claim does have arguable merit, we must determine whether “the course chosen by counsel had some reasonable basis designed to serve the best interests of the client.” Commonwealth v. Buehl, supra (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967)).

If our review of the record reveals that counsel was ineffective, we then must determine whether appellant has demonstrated that counsel’s ineffectiveness worked to his or her prejudice. Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 976 (1987). To determine whether appellant was prejudiced, our Supreme Court adopted the test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, supra. Under Strickland, to prove that counsel’s ineffectiveness resulted in prejudice, an appellant must show that the error was “so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.” Strickland v. Washington, supra at 687, 104 S.Ct. at 2064.

Under this analysis, we first must determine whether appellant-Anthony’s underlying claim — that the testimony of these witnesses was necessary to corroborate his alibi defense — has arguable merit. We conclude that it does not. Ruffin’s testimony would have established that, some time prior to the shooting, he saw Anthony at a friend’s house. N.T. February 13, 1985 at 47. In addition, he would have testified that he informed Anthony of a fight between the victim and Anthony’s cousin and that Anthony informed him that he did not want to accompany Ruffin to the fight. Id. This testimony would not have been helpful to Anthony in establishing his alibi because it would only have shown where Anthony was at the time of the fight and would not have excluded the possibility that Anthony participated in the shooting, which occurred later that afternoon.

Anthony also argues that an unnamed witness would have been helpful in corroborating his alibi. In seeking to establish that counsel should have called a witness, an appellant must allege

(1) the identity of the witness,
(2) that counsel knew of the existence of the witnesses,
(3) the material evidence that the witness would have provided, and
(4) the manner in which the witness would have been helpful to his or her cause.

Commonwealth v. Polk, 347 Pa.Super. 265, 273, 500 A.2d 825, 829 (1985); Commonwealth v. Torres, 329 Pa.Super. 58, 68, 477 A.2d 1350, 1355 (1984). Here, Anthony has failed to identify the alibi witness. In addition, he has not set forth the material evidence that the witness would have provided. Without more, we are unable to determine whether this witness would have been helpful to establishing his defense. Accordingly, because the testimony of these witnesses would not have been helpful to Anthony, we conclude that his claim lacks arguable merit. Counsel, therefore, was not ineffective for failing to properly file notice of alibi defense under Rule 305.

II. COMMONWEALTH APPEAL In its appeal, the Commonwealth contends that the court erred in arresting judgment for felonious aggravated assault and entering judgment for misdemeanor aggravated assault.

The effect of a motion in arrest of judgment is to admit all facts which the Commonwealth’s evidence tends to prove. The entire record must be considered in evaluating the sufficiency of the evidence. All the evidence must be read in the light most favorable to the Commonwealth, which is entitled to all reasonable inferences arising therefrom.

Commonwealth v. Rawles, 501 Pa. 514, 520, 462 A.2d 619, 622 (1983) (citations omitted).

[T]he test requires, before the granting of a motion in arrest of judgment based on insufficiency of the evidence, that the court make a finding that the evidence supporting the verdict of guilt is so weak and inconclusive that a [factfinder] could not be satisfied as to the guilt of the defendant beyond a reasonable doubt.

Commonwealth v. Blevins, 453 Pa. 481, 487, 309 A.2d 421, 425 (1973).

Section 2702(a)(1) of the Crimes Code provides that a person is guilty of felonious aggravated assault if he or she “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). To sustain a conviction for aggravated assault, we need not find that the victim actually suffered serious bodily injury. Commonwealth v. Russell, 313 Pa.Super. 534, 539, 460 A.2d 316, 319 (1983).

Where the injury actually inflicted did not constitute serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury. Criminal intent may be proved by direct or circumstantial evidence.

Id., 313 Pa.Superior Ct. at 539-540, 460 A.2d at 319 (quoting Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887, 889 (1978)).

Here, at the conclusion of the trial, the court found Anthony guilty of felonious aggravated assault under 18 Pa.C.S.A. § 2702(a)(1). Following argument on post-verdict motions, the court arrested judgment on the felonious aggravated assault charge and entered judgment for misdemeanor aggravated assault under 18 Pa.C.S.A. § 2702(a)(4). In granting Anthony’s motion for arrest of judgment, the court stated only that “I don’t think it was clearly shown— even though he shot, it didn’t show where the other bullets landed, or his marksmanship might have been bad, as you say, but it could have been bad either way.” N.T. May 16, 1985 at 6. In so ruling, the court concluded that the evidence presented at trial was legally insufficient to support a conviction for felonious aggravated assault under 18 Pa.C.S.A. § 2702(a)(1). Viewing the evidence presented in the light most favorable to the Commonwealth, however, we conclude that the evidence was sufficient to support such a conviction.

On August 27, 1984, the victim, Gary Bard, was walking north on 52nd Street in Philadelphia. N.T. February 13, 1985 at 14. His brother, Reginald Bard, was walking in the opposite direction on 52nd Street. Id. at 27. Both testified that they saw a group of six or seven men on the opposite side of the street. Id. at 14, 22-23. Anthony was standing with the group. Id. at 23. Reginald Bard crossed the street and approached the group. Id. at 23. When he was seven to ten feet from the group, Anthony pulled out a gun and pointed it at him. Id. at 23, 25. A person then shouted “No, no, not that one; the other one.” Id. at 9, 23. Anthony then turned the gun and pointed it at the victim. Id. at 23. Anthony fired three or four shots, one of which struck the victim in the arm. Id. at 9, 23-24.

This evidence was sufficient to prove felonious aggravated assault. The fact that Anthony intentionally took aim at the victim, fired three or four shots at him, and, indeed, did injure the victim, was sufficient to allow a factfinder to conclude that Anthony had the intent to cause serious bodily injury. Thus, Anthony’s argument that the victim did not actually sustain serious bodily injury is irrelevant. See Commonwealth v. Russell, supra. Because the evidence was sufficient to prove aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) beyond a reasonable doubt, the trial court erred in arresting judgment on this conviction. See Commonwealth v. Rawles, supra. Accordingly, we reverse the judgment of sentence for aggravated assault under 18 Pa.C.S.A. § 2702(a)(4), reinstate the verdict for aggravated assault under 18 Pa.C.S.A. § 2702(a)(1), and remand for resentencing.

For the foregoing reasons, we vacate the judgment of sentence for aggravated assault under 18 Pa.C.S.A. § 2702(a)(4), reverse the order of the trial court arresting judgment, reinstate the verdict for aggravated assault under 18 Pa.C.S.A. § 2702(a)(1), and remand for resentencing..

VACATED AND REMANDED. Jurisdiction is relinquished.

      . The Crimes Code provides in relevant part that
      A person is guilty of aggravated assault if he [or she]:
      (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; [or]
      ******
      (4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.
      18 Pa.C.S.A. § 2702(a). At the time of the offense, aggravated assault under § 2702(a)(1) was a felony of the second degree. Aggravated assault under § 2702(a)(4) was graded as a misdemeanor of the first degree. Id. § 2702(b) (amended 1986).

      . A court’s determination that, as a matter of law, the evidence is not sufficient to support the verdict is a ruling from which the Commonwealth may appeal. Commonwealth v. Rawles, 501 Pa. 514, 519, 462 A.2d 619, 621 (1983).

      . Anthony argues that Rule 305 does not apply because Ruffin was not an alibi witness. He concedes, however, that Ruffin’s testimony would have "bolstered [appellant’s] account of where he was and his avowed disinclination to get involved in the fracas." Brief for Appellant Brian Anthony at 7. Because it is apparent that the purpose of Ruffin’s testimony was to bolster Anthony’s account of where he was at the time of the offense, we conclude that Ruffin’s testimony would have been in the nature of alibi.

      . Unfortunately, we do not have the benefit of the trial court’s opinion. Judge Thomas N. Shiomos, the presiding judge, is no longer on the bench and no opinion has been filed in this case.

      . In any event, it is not at all clear that a gunshot wound is, as a matter of law, not a serious injury.

      . The Commonwealth had sought the mandatory five year minimum sentence for aggravated assault under 18 Pa.C.S.A. § 2702(a)(1). See 42 Pa.C.S.A. § 9712(a) (offenses committed with firearms).


text:
    546 A.2d 1127
    Martin PSAKI, Appellant, v. Darlene FERRARI and Joseph Grosso, Appellees.
    Superior Court of Pennsylvania.
    Argued April 7, 1988.
    Filed July 25, 1988.
    Reargument Denied Sept. 16, 1988.

      James Cunilio, Bryn Mawr, for appellant.
    Before WIEAND, McEWEN and BECK, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a judgment for money damages will support a lis pendens filed against real estate which is owned by a stranger to the judgment and which is not the subject of any pending litigation. The trial court held that a lis pendens filed under such circumstances was improper. We agree and affirm.

Martin Psaki commenced a civil action against Darlene Ferrari and Joseph Grosso to recover unpaid loans in the amount of $99,408. When Ferrari and Grosso failed to file an answer to the complaint, Psaki, on July 25, 1985, caused a default judgment to be entered against them. Thereafter, on October 30, 1985, Psaki caused a lis pendens notice to be indexed against real estate owned by William A. Koepke at 680 Wetherly Lane, Devon, Chester County. Title to this real estate had been acquired by Koepke from Ferrari by deed dated March 5, 1985 and thereafter recorded in the Office of the Recorder of Deeds in and for Chester County. When Koepke, in turn, agreed to sell the real estate to a third person, he was compelled to place in escrow the sum of $110,000 in order to obtain a release of the lis pendens. This sum was deposited with the Prothonotary pending final determination of the validity of the lis pendens. The court thereupon, by order dated July 8, 1986, cancelled the lis pendens. After further proceedings, the trial court held that the lis pendens had been improperly indexed against Koepke’s real estate and ordered a return of the $110,000 to him. Psaki appealed.

Strictly speaking, the effect of a lis pendens is not to establish an actual lien upon the property affected. Its purpose is merely to give notice to third persons that the real estate is subject to litigation and that any interest which they may acquire in the real estate will be subject to the result of the action. Dice v. Bender, 383 Pa. 94, 97, 117 A.2d 725, 726-727 (1955). Lis pendens has no application except in cases involving the adjudication of rights in specific property. Shannon v. Barrett, 65 Pa.D & C.2d 446, 448-449 (Del.Co.1974). Thus, a party is not entitled to have his case indexed as lis pendens unless title to real estate is involved in litigation. Lis pendens may not be predicated upon an action seeking to recover a personal demand. 54 C.J.S. Lis Pendens § 11. See: Fester v. Bran-Kel, Inc., 62 Del.Co.R. 422, 424 (1974). When a personal demand is reduced to judgment, of course, it becomes a lien, without more, on real estate which is owned by the judgment debtor. In re Upset Sale, Tax Claim Bureau of Berks County, 505 Pa. 327, 334, 479 A.2d 940, 943 (1984). See also: 42 Pa.C.S. § 4303(a). In such event, the filing of a lis pendens is unnecessary.

The judgment recovered by appellant against Ferrari was not a lien against the real estate which Koepke had earlier acquired from Ferrari. This real estate, moreover, was not at any relevant time the subject of an action to adjudicate rights of ownership therein. Therefore, the attempt to index a lis pendens against the real estate owned by William Koepke was a nullity and subject to cancellation. Koepke was not appellant’s judgment debtor and was never a party to the proceedings in which the default judgment had been entered. To permit a lis pendens under these circumstances would be to permit a person holding a judgment to place a cloud against the title to real estate owned by any other person, whether or not a party to the judgment, merely by filing a praecipe. This is not the law.

The order of the trial court is affirmed.

      . Lis pendens cannot be used to assert a claim that a conveyance of real estate has been made in fraud of the grantor's creditors. Such a claim must first be made in an equity action to set aside the conveyance.


text:
    546 A.2d 1129
    Thomas R. GRAHAM and Laura A. Graham, Husband and Wife, Appellees, v. Paul C. LYONS and Helen M. Lyons, his Wife and William H. Lyons and Paul G. Lyons II and Lynn C. Lyons and Samuel H. Lyons Their Heirs Personal Representatives, and Successors and Assigns Generally, Appellants.
    Superior Court of Pennsylvania.
    Argued April 13, 1988.
    Filed July 22, 1988.
    Reargument Denied Sept. 28, 1988.

      Burton L. Fish, Erie, for appellants.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

In this appeal we are asked to determine whether the trial court erred in failing to address the application of the Pennsylvania Recording Act to the facts in this quiet title action. On July 9, 1987 the trial court filed an opinion and order in favor of Plaintiffs-Appellees which granted Appellants’ 30 days in which to take post-trial action. See: Pa.R.Civ.P., Rule 1066, 42 Pa.C.S.A. Within this time period a motion was filed containing the issue Appellants now seek to have reviewed on appeal, and a timely notice of appeal was filed.

The property in question which was used as a hunting camp was conveyed by Mr. and Mrs. Roscoe Mitchell to Appellees on January 6, 1971. The deed evidencing this conveyance was subsequently recorded. The trial court found that Mr. and Mrs. Mitchell’s interest in the property was acquired on June 24, 1952 when Paul C. Lyons executed a deed to the property in return for a payment of $100.00. This deed was never recorded and was “lost” at the time of trial.

Appellants, who claim to be the rightful owners of the property in question, contend that the trial court erred when it failed to take into account the fact that Mr. and Mrs. Lyons had conveyed the subject property to William C. Lyons, Paul H. Lyons II, Lynn G. Lyons and Samuel H. Lyons on October 28, 1968, the deed to which was recorded the next day. Appellants maintain that the Pennsylvania Recording Act protects their title since the conveyance was set down in writing and was recorded prior to the transfer of the property to Appellees. See: 21 P.S. § 351.

The argument advanced by Appellants must be dismissed since it is based on the faulty premise that the subject property was transferred in the 1968 conveyance. The deed conveying property from Mr. and Mrs. Lyons to their sons contains the following reservation:

ALSO, EXCEPTING AND RESERVING five (5) campsites sold by Paul C. Lyons and Helen M. Lyons, his wife, to third parties totaling approximately eight (8) acres, more or less.

A title abstractor who testified at trial performed a title search and indicated that during his examination he discovered four recorded deeds transferring four different campsites. N.T. 6/11/86 at 66. None of the four deeds consisted of a transferred campsite from Mr. and Mrs. Lyons to Mr. and Mrs. Mitchell. The trial court concluded that the unrecorded “lost” deed executed in 1952 to Mr. and Mrs. Mitchell was the fifth campsite which was “excepted and reserved” in the conveyance from Mr. and Mrs. Lyons to their sons. Although this conveyance was not recorded, the recording of a deed is not essential to its validity or to the transition of title. Fiore v. Fiore, 405 Pa. 303, 174 A.2d 858 (1961). The title to real estate may be passed by delivery of a deed without undertaking a recording since the recording is essential only to protect by constructive notice any subsequent purchasers, mortgagees and new judgment creditors. Matter of Pentrack’s Estate, 486 Pa. 237, 405 A.2d 879 (1979); Malamed v. Sedelsky, 367 Pa. 353, 80 A.2d 853 (1951). The question of whether Appellants had constructive notice that the property at issue was conveyed to the Mitchells is not at issue since Appellants deed contains an exception which excludes this property from the description of the land transferred by the Lyons to their sons.

Further, the fact that the deed conveying the property to the Mitchells was lost at the time of trial did not prevent the Appellees from submitting proof of its existence. “The standards for establishing by parol evidence the existence and contents of a lost deed are the same as those for establishing a parol sale or gift of land.” Manley v. Manley, 238 Pa.Super. 296, 357 A.2d 641 (1976). A claimant must present evidence which is direct positive, express and unambiguous expressly defining all the terms and conditions of the contract and leaving nothing to guesswork or subject to misinterpretation. Id. While the existence and terms must be proven by clear and indisputable evidence, proof of the contents verbatim of the lost instrument is not necessary. Wheatcroft v. Albert Company, 407 Pa. 97, 103, 180 A.2d 216, 219 (1962).

In the instant case the trial court concluded, based upon sufficient evidence, that the property in question passed to the Mitchells, Appellees’ predecessor in title, in 1952. The trial court was fortunate to have the benefit of the testimony of both parties involved in the transfer. The trial court placed great emphasis on the equivocal testimony of Mr. Lyons as to whether or not he gave a deed or personal license to the Mitchells in return for a payment of $100.00. The trial court also cited to evidence that the Lyons knew of construction at the campsite, knew of the transfer of the property to the Appellees, and yet he failed to bring an action in ejectment. Rather, Appellees instituted the subject action when during the course of a title search preparatory to a sale they discovered the “lost” deed was not recorded.

Since the property in question passed by means of a valid conveyance to Mr. and Mrs. Mitchell, who in turn transferred the property to Appellees, and since the deed executed in 1968 from the Lyons to their sons excludes from its description the property at issue, the trial court properly ruled in favor of Appellees in this quiet title action.

Order affirmed.

      . After the trial had concluded Appellee filed a Motion for Reconsideration indicating that the “lost” deed had been discovered. A deed evidencing a transfer from Mr. and Mrs. Lyons to Mr. and Mrs. Mitchell was filed in the record but was not considered by the trial court.