text:
    646 A.2d 1192
    HOPEWELL ESTATES, INC., Appellant, v. Andrew KENT, C.L. Frantz and Associates and Curtis L. Frantz, Appellees.
    Superior Court of Pennsylvania.
    Argued March 30, 1994.
    Filed Aug. 22, 1994.

      Mark C. Clemm, Plymouth Meeting, for appellant. (Submitted).
    Gene M. Venzke, Reading, for Andrew Kent, appellee.
    Byron M. Yatron, Reading, for C.L. Frantz & Associates and Curtis L. Frantz, appellees.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

The issue in this appeal is whether an action for professional negligence against a surveyor and an engineer is barred by a prior judicial denial of a motion to open a judgment confessed on a note given in payment of their professional fees. The trial court held that the action for negligence was barred and entered summary judgment in favor of’ the surveyor and the engineer. The claimant appealed. We reverse and remand for further proceedings.

In August, 1989, Hopewell Estates purchased a tract of land in Union Township, Berks County, intending to place thereon a housing development. Hopewell employed Andrew Kent, a surveyor, to do engineering work and to prepare plans for the development in compliance with requirements of the Union Township Planning Commission. Kent enlisted the services of C.L. Frantz and Associates, an engineering firm, to assist him with the engineering work. For the next nine months, it is alleged, the surveyor and the engineer submitted plans to the planning commission. These plans, Hopewell complains, were deficient and deadlines were missed, with the result that the plans were rejected. Finally, in May, 1989, the planning commission granted provisional approval for the project on condition that the deficiencies be promptly corrected.

After the project had been provisionally approved, Kent and Frantz submitted a bill for services in the amount of $19,-309.33, and Hopewell executed and delivered a judgment note in that amount. When Kent and Frantz caused judgment to be entered on the note, however, Hopewell filed a petition to open the judgment.

On January 12, 1990, while the petition to open the judgment was pending and remained undecided, Hopewell filed a civil complaint against Kent and Frantz in which it claimed damages for professional negligence. The petition to open judgment was not decided until May 11, 1993, when it was denied. On June 18, 1993, Kent and Frantz filed separate motions for summary judgment, contending that Hopewell’s action was now barred by principles of res judicata and collateral estoppel. The trial court held that the order denying the petition to open had resolved all issues pertaining to the fees which the surveyor and the engineer were entitled to recover and that issues not asserted in those proceedings could not be raised in a separate action. Because the issue of professional negligence could have been raised in the prior proceedings, the court held, the present action was barred.

A motion for summary judgment may properly be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035. See also: Grossman v. Rosen, 424 Pa.Super. 463, 465-466, 623 A.2d 1, 2 (1993); Kaller’s Inc. v. John J. Spencer Roofing, Inc., 388 Pa.Super. 361, 364, 565 A.2d 794, 795-796 (1989). However, “the record must be examined in the light most favorable to the non-moving party. ...” Kaller’s Inc. v. John J. Spencer Roofing, Inc., supra at 364, 565 A.2d at 796. Moreover, summary judgment should be granted only where the right is clear and free of doubt. Marks v. Tasman, M.D., 527 Pa. 132, 134-135, 589 A.2d 205, 206 (1991). Nevertheless, it is proper to enter summary judgment where an action is barred by res judicata or collateral estoppel. Grant v. GAF Corp., 415 Pa.Super. 137, 149, 608 A.2d 1047, 1053-1054 (1992), aff'd, 536 Pa. 429, 639 A.2d 1170 (1994).

Res judicata and collateral estoppel are affirmative defenses which must be pleaded in an answer as new matter. Pa.R.C.P. 1030. A defense not so raised is waived. Pa.R.C.P. 1032. In this case, the defendants did not assert a res judicata defense in their initial answer but did allege the defense of collateral estoppel therein. Moreover, the petition to open the confessed judgment had not been decided when the answers were filed in this case; and, after the petition to open was decided, these defenses were called to the trial court’s attention by motions for summary judgment. Under these circumstances, we are unwilling to hold that there was a waiver. See: Martin v. Poole, 232 Pa.Super. 263, 267 n. 2, 336 A.2d 363, 365 n. 2 (1975). See also: Meridian Oil & Gas Enterprises, Inc. v. Penn Central Corp., 418 Pa.Super. 231, 238-239, 614 A.2d 246, 250 (1992), allocatur denied, 534 Pa. 649, 627 A.2d 180 (1993).

Res judicata, which is also known as claim preclusion, holds that a final judgment on the merits by a court of competent jurisdiction will bar any future action on the same cause of action between the parties and their privies. McArdle v. Tronetti 426 Pa.Super. 607, 611, 627 A.2d 1219, 1222 (1993). The doctrine has application where the following are present: (1) identity of the thing sued upon or for; (2) identity of the cause of action; (3) identity of persons or parties to the actions; and (4) identity of the quality or capacity of the parties suing or sued. See: McArdle v. Tronetti supra at 612, 627 A.2d at 1222; Martin v. Poole, supra, 232 Pa.Super. at 268, 336 A.2d at 366. “[A]ll matters which might have been raised and decided in the former suit, as well as those which were actually raised therein, are res adjudicata in a subsequent proceeding between the same parties and their privies.” Nevling v. Commercial Credit Co., 156 Pa.Super. 31, 35-36, 39 A.2d 266, 267 (1944). See also: McArdle v. Tronetti supra, 426 Pa.Super. at 611, 627 A.2d at 1222. Proceedings on a petition to open a- judgment may be sufficient to bar a subsequent suit only where each of the elements constituting res judicata have been met. Nevling v. Commercial Credit Co., supra, 156 Pa,Super, at 35, 39 A.2d at 267. See also: Romah v. Romah, 411 Pa.Super. 12, 15, 600 A.2d 978, 981 (1991).

In determining whether res judicata should apply, a court may consider whether the factual allegations of both actions are the same, whether the same evidence is necessary to prove each action and whether both actions seek compensation for the same damages. Mintz v. Carlton House Partners, Ltd., 407 Pa.Super. 464, 475, 595 A.2d 1240, 1246 (1991). “The thing which the court [should] consider is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties actually had an opportunity to appear and assert their rights.” Stevenson v. Silverman, 417 Pa. 187, 192, 208 A.2d 786, 788 (1965), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965) (emphasis omitted), quoting Hochman v. Mortgage Fin. Corp., 289 Pa. 260, 263, 137 A. 252, 253 (1927). Although based upon facts in common with an earlier action, res judicata will not bar a subsequent action where the damages for which relief was sought in the earlier action were entirely different. Pontiere v. James Dinert, Inc., 426 Pa.Super. 576, 588, 627 A.2d 1204, 1210 (1993); Melat v. Melat, 411 Pa.Super. 647, 653, 602 A.2d 380, 383 (1992). Indeed, two suits which have arisen out of the same set of factual circumstances may involve entirely separate causes of action. McArdle v. Tronetti, supra, 426 Pa.Super. at 612-613, 627 A.2d at 1222; Martin v. Poole, supra, 232 Pa.Super. at 268, 336 A.2d at 366.

An unliquidated counterclaim or set-off cannot be asserted as a ground for opening a confessed judgment. Nadolny v. Scoratow, 412 Pa. 488, 492 n. 4, 195 A.2d 87, 89 n. 4 (1963); Harrison v. Stoeckert, 369 Pa. 143, 146, 85 A.2d 154, 155 (1952); J.M. Korn & Son, Inc. v. Fleet-Air Corp., 300 Pa.Super. 458, 462, 446 A.2d 945, 947 (1982); Hellam Township v. DiCicco, 287 Pa.Super. 227, 233, 429 A.2d 1183, 1186 (1981). Thus, Hopewell’s unliquidated claim for professional negligence could not properly have been asserted as a basis for opening the judgment against Hopewell for services rendered. Because Hopewell’s claim for professional negligence was not a claim which could properly have been raised in its petition to open the confessed judgment, appellant’s failure to do so does not permit an invocation of the doctrine of res judicata.

For similar reasons, the present action is not barred by principles of collateral estoppel. This principle, which is sometimes referred to as issue preclusion, prevents an issue of law or fact from being relitigated after it has been once litigated and finally adjudicated in a court of competent jurisdiction. Grossman v. Rosen, supra, 424 Pa.Super. at 466, 623 A.2d at 2; Grant v. GAF Corp., supra, 415 Pa.Super. at 153-154, 608 A.2d at 1056. The doctrine applies when (1) an issue is identical to one which was presented in a prior case; (2) there has been a final judgment on the merits of the issue in the prior case; (3) the party against whom collateral estoppel is asserted was a party in, or in privity with a party in, the prior action; (4) the party against whom the doctrine is asserted, or one in privity with the party, had a full and fair opportunity to litigate the issue in the prior proceeding; and (5) the determination in the prior proceeding was essential to the judgment. McArdle v. Tronetti supra, 426 Pa.Super. at 614, 627 A.2d at 1223. Collateral estoppel applies only to issues which have been actually litigated in a prior action. Stidham v. Millvale Sportsmen’s Club, 421 Pa.Super. 548, 566, 618 A.2d 945, 954 (1992); Kaller’s Inc. v. John J. Spencer Roofing, Inc., supra, 388 Pa.Super. at 365, 565 A.2d at 796; Thompson v. Rarastan Rug Mills, 228 Pa.Super. 260, 264, 323 A.2d 341, 343 (1974).

Appellant’s claim for professional malpractice was not litigated as a part of the proceedings to open the judgment confessed against appellant for professional fees owed pursuant to contract. Not only was the issue not litigated but, as we have already observed, appellant could not properly have litigated such a claim in the prior proceedings. Thus, collateral estoppel does not bar appellant from pursuing an action in negligence at this time.

Although the denial of appellant’s petition to open judgment resolved all issues relating to the effect and propriety of the demand note signed by appellant, as well as any amount owed to appellees for services rendered, it did not address or settle any claims which appellant had against appellees for professional negligence. Therefore, the trial court erred when it held that the present action was barred.

Reversed and remanded for further proceedings. Jurisdiction is not retained.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    646 A.2d 1196
    Ron GNIEWEK, Appellant, v. 1700 PLACE APARTMENTS and Frank Lindey, Appellees.
    Superior Court of Pennsylvania.
    Argued May 12, 1994.
    Filed Aug. 23, 1994.

      Marc Sigal, Philadelphia, for appellant.
    Geoffrey H. Baskerville, NJ, for appellees.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge:

Ron Gniewek appeals from an order granting summary judgment to 1700 Place Apartments and Frank Lindy, Appellees, in this personal injury case. We reverse.

Appellant filed suit against Appellees to recover for injuries that he suffered as a result of a fall on ice in the driveway at the 1700 Place Apartments. At that time, Appellant was employed by Roy Arms as a handy man. Roy Arms Repair Service had a contract with 1700 Place Apartments to repair or renovate the units at the apartment complex. The 1700 Place Apartments are owned by a general partnership, the 1700 Place Apartments of Pennsylvania. The general partners are Phillip Lindy and Cedrich Gardens, Inc. The Lindy Property Management Company, also a partnership, manages the 1700 Place Apartments. Frank Lindy is a limited partner of the Lindy Property Management Company and Phillip Lindy and Anabell Lindy are general partners in the Lindy Property Management Company. Frank Lindy and Allan Lindy are responsible for the daily administration of the 1700 Place Apartments, and the 1700 Place Apartments’ staff were supervised by both Frank and Allan Lindy. Frank and Allan Lindy would then report to Phillip Lindy as the owner of 1700 Place Apartments.

Frank Lindy’s deposition testimony was that, at the time of Appellant’s accident, Roy Arms Repair Service had a contract with 1700 Place Apartments to paint, clean and maintain the apartments after a tenant moved out, and they did various external jobs including snow removal. Roy Arms employees were complementing the 1700 Place Apartments staff. As a Roy Arms employee, Appellant was given daily work assignments by Roy Arms and he was paid by Roy Arms. Frank Lindy would inform Roy Arms what work needed to be completed under his contract. Although the Lindy Property Management Company did not have authority to tell Roy Arms’ employees how to do their work, the management company could dispatch Roy Arms’ employees to different jobs.

On the morning of the accident, Appellant had been assigned to work in one of the 1700 Place Apartment Buildings. His task was to remove debris from the building by placing it in trash cans, and dragging the cans to a dumpster to be emptied. On one trip to the dumpster, Appellant slipped on ice in the driveway and fractured his hand. Approximately two weeks later, Appellant was fired by Roy Arms.

After the parties in this case were deposed, Appellees filed a motion for summary judgment. The trial court granted the motion reasoning that 1700 Place Apartments and Frank Lindy were the statutory employers of Appellant and therefore immune from an action at law for damages under the Pennsylvania Workmen’s Compensation Act. The court further stated that Appellant failed under Pa.R.Civ.P. 1035 to set forth facts showing that a genuine issue for trial existed.

“In reviewing summary judgment, the Court must accept as true all well-pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom.” Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108, 109 (1983). Summary judgment will be upheld only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id; Pa.R.Civ.P. 1035(b). The opposing party of a motion for summary judgment may not rest upon mere denials of the pleading, but the response by affidavits or otherwise must articulate specific facts showing that there is a genuine issue for trial. Pa.R.Civ.P. 1035(d). Summary judgment may only be. entered in cases which are clear and free from doubt. Krause v. Great Lakes Holdings, Inc., 387 Pa.Super. 56, 563 A.2d 1182 (1989).

We must determine whether 1700 Place Apartments and Frank Lindy are statutory employers of Appellant within the meaning of the Pennsylvania Workmen’s Compensation Act.

Section 203 of the Act sets forth the prerequisites for statutory employer status as follows:

An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.

Act of June 2, P.L. 736, art. II, § 203 as amended; 77 P.S. § 52.

Our supreme court in McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930), interpreted section 203 to require that five elements be met to come within the definition . of a statutory employer:

(1) An employer who is under contract with an owner or one in the position of an owner. (2) Premises occupied by or under the control of such employer. (3) A subcontract made by such employer. (4) Part of the employer’s regular ■ business entrusted to such subcontractor. (5) An employee of such subcontractor.

Id. at 294-295, 153 A. 424. In applying the McDonald test to the case sub judice, we keep in mind that “section 203 of the Workmen’s Compensation Act, which was designed to extend benefits to workers, should not be casually converted into a shield behind which negligent employers may seek refuge.” Stipanovich v. Westinghouse Electric Corp., 210 Pa.Super. 98, 231 A.2d 894, 898 (1967).

Instantly, 1700 Place Apartments argue that they satisfy the elements of McDonald in that they contracted with the owners of 1700 Place Apartments to manage the building, the premises were under their control, the contract between Roy Arms Repair and the buildings management gave Roy Arms responsibility for maintenance of the apartments between tenants, the maintenance work was part of the work that Appellees contracted to do in their agreement with the owners of 1700 Place Apartments, and Appellant was an employee of Roy Arms Repair Service.

Appellee’s argument is specious. Appellee, 1700 Place Apartments, was the owner. It could not contract with itself to manage the premises which it owned. As the owner of the property, Appellee could not acquire statutory employer status.

Appellant’s employer, Roy Arms Repair Service, directly contracted with 1700 Place Apartments to repair or renovate the apartments at that location. In Ashman v. Sharon Steel Corp., 302 Pa.Super. 305, 448 A.2d 1054 (1982), a truck driver was injured while at work and he filed a action against Sharon Steel to recover for the injuries. The trial court held that Sharon Steel was liable in a common-law negligence action for the injuries suffered and we agreed reasoning that:

Appellant [Sharon Steel] is not a “principal contractor,” but an owner of the property. Our courts have held that this distinction is significant; an independent contractor’s employe is not ordinarily considered to become an “employe” of the owner of the property for Compensation Act purposes. Brooks v. Buckley & Banks, 291 Pa. 1, 139 A. 379 (1927); Freeny v. William Penn Broadcasting Co., 180 Pa.Super. 434, 118 A.2d 275 (1955).

Ashman, 448 A.2d 1054. We also addressed this issue in Zizza v. Dresher Mechanical Contractors, Inc. (en banc), 358 Pa.Super. 600, 518 A.2d 302 (1986), where a worker brought an action against an owner of an excavation site, a contractor and subcontractor to recover for injuries he sustained when the trench that he was digging collapsed and injured his leg. With respect to the owner of the property, Philadelphia Electric Company (PECO), we reversed the trial court’s grant of summary judgment in their favor. We cited Ashman, supra and Alexander Barbieri, in Pennsylvania Workmen’s Compensation and Occupational Disease which states that “[t]he statutory employer status does not include an owner or entrepreneur. Barbieri, supra, at § 4.09(3) (1975).” Zizza, 518 A.2d 302, 305. We also mentioned in Zizza Barbieri’s analysis of a scenario where an employee of an independent contractor is injured and the independent contractor works under contract with the owner. He states that if:

the contractor is performing work for the owner or entrepreneur that is not “part of the ... regular business” of the owner, then the statutory employment status does not arise and the injured employe of the contractor may look only to the contractor, the immediate employer, for compensation, and the owner or entrepreneur will have no immunity defense to a suit for negligence by the injured man. Barbieri, supra (footnote omitted).

Zizza, 518 A.2d 302, 305.

Nevertheless, to support its position that it is not an owner ' but rather an employer, Appellees refer us to the deposition, of Frank Lindy. Appellees contend that the first prong of the McDonald test was established by Frank Lindy’s testimony as follows:

Q. What is the function of the Lindy Property Management?

A. Lindy Property Management Company manages properties for a fee.

Q. In other words, the owner of a property pays you to run the property for them?

A. That’s correct.

Q. And those are usually rental properties?

A. Yes.

Q. Do you primarily specialize in office buildings or apartment buildings?

A. Apartment buildings.

Q. I’m not going to go into the other apartment buildings, I’m going to focus on one, 1700 Place Apartments. Are you familiar with that location?

A. Yes, sir.

Q. Do you manage that location?

A. Yes.

Q. How long have you managed that location?

A. Since 1977 — let me rephrase that.

MR. NICHOLSON: Before he answered, you said how long has he personally managed. Are you asking him, himself?

MR. SIGAL: No, the partnership.

THE WITNESS: Okay. I don’t recall a specific date. I would say, if memory serves me correct, it was in 1987. I think it was in 1987 when we became involved in the property.

Deposition testimony 1-21-93 at 6-7. This testimony does not establish the first requirement that 1700 Place Apartments is an employer who is under contract with an owner or one in the position of an owner. In fact, 1700 Place Apartments is the owner according to Frank Lindy’s response at the deposition. Mr. Sigal, Appellant’s attorney, asked him “who owned the property at the time?” Lindy responded, “1700 Place Apartments of Pennsylvania a general partnership.” (Deposition testimony 1-21-93 at 10). On the other hand, Frank Lindy’s testimony shows that Lindy Property Management Company, an entity entirely separate from 1700 Place Apartments, was managing the 1700 Place Apartment units for the owners of 1700 Place Apartments.

Frank Lindy also testified that Roy Arms Repair Service contracted with 1700 Place Apartments to repair, paint, clean and maintain apartments. (Deposition testimony 1-21-93 at 20). This is a situation very similar to those in Ashman, Zizza and analyzed by Barbieri. Here, the employee of an independent contractor, Roy Arms Repair Service, was injured while the independent contractor was working under contract with the owner. The work being performed by Roy Arms was not part of the regular business of the owner. The owner, 1700 Place Apartments, is in the business of renting apartment units, not repairing and cleaning property. Furthermore, there was no subcontract between 1700 Place Apartments and Roy Arms. Since 1700 Place Apartments cannot satisfy all five of the requirements of the McDonald test, it is not a statutory employer under.the Workmen’s Compensation Act and will not be immune from a negligence action for damages.

With respect to Frank Lindy, he too has failed the McDonald test for statutory employer status. Mr. Lindy could arguably satisfy prongs one, two, four and five because he is an employer under contract with an owner, the premises were under his control, Roy Arms Repair Service performed part of the employer’s regular business of maintaining the property, and Appellant was employed by Roy Arms. However, prong three of the test was not satisfied. It is undisputed that Frank Lindy did not enter into a subcontract with Roy Arms. As previously stated, Roy Arms contracted directly with 1700 Place Apartments for the work that he and his employees performed. Frank Lindy had no authority to tell Roy Arm’s employees how to worjk although he could dispatch them to work areas. Therefore, Frank Lindy would not be protected as a statutory employer under the Workmen’s Compensation Act from a negligence action at law.

The order granting summary judgment in favor of 1700 Place Apartments and Frank Lindy and against Ron Gniewek is reversed. The case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

McEWEN, J., concurs in the result.

      . Appellant also raised the issue that before a party can plead that it is protected from a negligence suit for damages under the Workmen’s Compensation Act, it must show that it already procured Workmen's Compensation Insurance, and Appellees have not submitted proof that they obtained such coverage. We decline to discuss this issue since we have concluded that Appellees were not the statutory employers of Appellant and therefore not protected under the Act.


author: POPOVICH, Judge.

text:
    646 A.2d 1199
    Harrison A. BORING, Administrator of the Estate of David Paul Boring, Deceased, Appellant, v. Linda L. LAMARCA, Robert H. Leonard and the Penn Monroe, v. T.J.R., INC., T/D/B/A Sorry Charlies, Top Charlies, New York, New York and Tom & Jerrys Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued June 30, 1994.
    Filed Aug. 24, 1994.
    Petition for Allowance of Appeal Denied Dec. 7, 1994.

      Jan C. Swensen, Pittsburgh, for appellant.
    Templeton Smith, Jr., Pittsburgh, for Motorists Mut. Ins., participating party.
    Before POPOVICH, SAYLOR and HOFFMAN, JJ.
   POPOVICH, Judge.

The appellant, Harrison A. Boring, Administrator of the Estate of David Paul Boring, deceased, appeals the order of the Court of Common Pleas of Allegheny County granting a new trial to the appellee/garnishee, Motorists Mutual Insurance Company. We reverse.

The facts relevant to a disposition of this case appears in the opinion of the court below at pages 1-2; to-wit:

The case is a wrongful death and survival action arising out of an accident in which Robert R. Leonard, while driving his automobile ran over David Paul Boring who had been lying in the roadway after having been struck by Linda L. LaMarca, a hit-and-run drunk driver. The jury returned a verdict of $331,000, having found LaMarca 56% causally negligent, T.J.J.R., Inc. (who served alcohol to LaMarca and was liable under the Dramshop Act) 30% causally negligent, Leonard 4% causally negligent, and the decedent, Boring, 10% causally negligent. The limits of Leonard’s insurance coverage with Motorists Mutual Insurance Company (“Motorists”) was $25,000. The limits of LaMarca’s coverage with Aetna Casualty and Surety Company was $100,000. Additional Defendant T.J.J.R., Inc., is insolvent. The Estate of Boring settled with LaMarca after trial for $95,000. In order for the Estate to collect its entire award, it is pursuing a bad faith claim against Motorists under its policy with Mr. Leonard. Under the law, if Motorists is found liable of acting in bad faith, it is responsible for the entire award (less LaMarca’s contribution), instead of only its policy limits.
The Estate alleges that Motorists breached its duty of acting in good faith under the contract it had with Leonard, challenging a decision by Motorist not to accept Plaintiffs settlement demands for an amount equal to Leonard’s policy limits. In this ancillary proceeding the Estate stands in the shoes of Leonard and is entitled to pursue Leonard’s rights under his policy with Motorists. After trial the jury found for the Estate on the bad faith claim.

Subsequent to trial, it came to Motorists’ attention that a member of the jury (Scott Matthews) removed a law book from the shelving in the room reserved for the jury’s deliberation, looked-up the term “good faith” and read aloud its definition to the other members of the jury. “Among the things which the [law book’s] discussion referred to was writing and written notice.” See Exhibit “A” (Affidavit of Deborah Jeanett, a juror) and Exhibit “B” (Affidavit of Scott Matthews), both of which are attached to the appellee’s appellate brief.

Post-trial motions were filed by Motorists seeking a new trial on grounds that the definition of “good faith” read by the juror to his fellow panel members contained an element (“written notice”) not included in the court’s charge. Thus, it argued, such a reading “constituted an improper influence on the jury” tainting its verdict. The court agreed and granted Motorists a new trial on grounds that the reading, in the course of deliberations, constituted an “extraneous influence” on a central issue in the case, i.e., such information had not been provided to the jury during trial and was prejudicial to Motorists’ “good faith” defense in not settling the case for the policy limits. This timely appeal was perfected by the appellant and raises the sole question of:

Whether the lower court erred in granting Motoristsf]
... Motion for PostNTrial Relief given the lack of competent testimony that the jury was exposed to or influenced by an extraneous influence and given the evidence presented at trial?

In this Commonwealth it is black letter law that jurors cannot impeach their own verdict by testifying to what occurred during deliberations. Pittsburgh National Bank v. Mutual Life Insurance Company of New York. 493 Pa. 96, 425 A.2d 383, 385 (1981). This has been referred to as the “no impeachment” rule. However, in order to accommodate the need to insure fair trials (free from improper influences) against the need for finality and protection of the sanctity of the jury room, a narrow exception has been recognized which permits “ ‘post-trial testimony of extraneous influences which might have affected [prejudiced] the jury during deliberations.’ ” Id. at 101, 425 A.2d at 386, quoting Commonwealth v. Sero, 478 Pa. 440, 448, 387 A.2d 63, 67 (1978).

Under the exception to the “no impeachment” rule, a juror may testify to the existence of the outside influence, but not to the effect the outside influence may have had on deliberations. Id., citing Commonwealth v. Zlatovich, 440 Pa. 388, 396, 269 A.2d 469, 473 (1970). In other words, a juror may not testify to his/her subjective reasoning process. Id.

Most recently, our Supreme Court in Carter by Carter v. U.S. Steel Corp., 529 Pa. 409, 604 A.2d 1010 (1992) (plurality opinion) set forth some guidelines in deciding whether outside influences impacted/prejudiced a jury’s deliberations so as to justify the award of a new trial.

In Carter, the appellant was injured when he entered onto USX property and was electrocuted (resulting in amputation of his left forearm and one of his toes) when he grabbed an uninsulated high voltage wire. The jury awarded the appellant (after molding) 1.2 million dollars. The trial court, however, granted USX a new trial after concluding that a television broadcast, viewed by two of the jurors and discussed during deliberations, was prejudicial. This Court affirmed, but on allocatur to the Supreme Court the grant of a new trial was reversed.

In the course of reversing, the Supreme Court acknowledged the allowance of testimony by jurors concerning exposure to the broadcast and reference to it during deliberations was permissible since it was not testimony of the jury’s reasoning process. Rather, it was testimony of overt conduct which, when related to an issue in the case, may create a potential for prejudice and call for the issuance of a new trial. Continuing, the Carter Court held that, in evaluating the reasonable likelihood of prejudice, the trial judge should consider: 1) whether the extraneous influence relates to a central issue in the case; 2) whether the extraneous influence provided the jury with information they did not have before them at trial; and 3) whether the extraneous influence was emotional or inflammatory in nature.

In applying the considerations set forth above, the Supreme Court held (in a lead opinion by Justice Larsen, joined by Papadakos, J., concurred in result by Zappala & Cappy, JJ., and dissented to by Nix, C.J., with opinion joined by Flaherty & McDermott, JJ.) that the television broadcast (relating that a subsequent death of a youth at the same site the appellant was injured was caused allegedly by the absence of posted danger signs by USX) was not prejudicial because the purported failure of USX to take precautions after Carter’s accident was not new information because this was readily apparent when the jurors viewed the site during trial.

Second, the Supreme Court found the absence of prejudice from the fact that the trial court instructed the jury, in pertinent part, “You should not be influenced by anything other than the evidence and the law of the case.” Lastly, the trial court additionally directed the jury before deliberations to “reach a fair conclusion from the evidence and applicable law.” From all of the preceding, the Court ruled that there was no reasonable likelihood of prejudice arising from the broadcast.

Instantly, consistent with Carter, the trial court looked to the tripartite test referred to in Carter in concluding that: 1) the reading by juror/Matthews to his colleagues constituted “extraneous influence” as to the definition of “good faith,” which was central to the appellant’s “bad faith” suit against Motorists; 2) the affidavit of juror/Jeanett mentioned “writing or written notice” being read by juror/Matthews with regard to the term “good faith,” elemental aspects missing from the trial court’s instruction on the same subject; and 3) albeit the trial court could not find anything suggesting any emotional or inflammatory evidence, it concluded that there was a reasonable likelihood of prejudice generated by the extraneous influence. We agree with some but not all of the trial court’s observations, and, therefore, find that the trial court abused its discretion in awarding Motorists a new trial.

To explicate, we find that juror/Matthews’ reading to his fellow jurors the definition of “good faith,” extracted from a legal book in the deliberation room, constituted “extraneous influence” in that the information was not provided in open court or vocalized by the trial court via instructions. Carter, supra; see Concurring Opinion by Roberts, J. in Pittsburgh National Bank, supra.

However, we do not know, consistent with the second prong of Carter’s guide posts, whether the information read to the jury by Matthews was information it did not have at trial. In contrast to Carter (and the cases cited therein), at bar we are not privy to the entire substance of the information allegedly communicated to the jury during deliberations, save for juror/Jeanett’s reference in her affidavit to “writing or written notice” being discussed by the text read from by juror/Matthews. This scant disclosure of information falls woefully short of the requirement in Carter allowing a trial judge to assess the prejudicial effect of such extraneous influences, but only after “the existence of a potentially prejudicial extraneous influence has been established by competent testimony.” 529 Pa. at 420, 604 A.2d at 1016 (Emphasis added). In particular, the Court wrote:

In order to determine whether an extraneous influence is prejudicial, a trial judge must determine how an objective, typical juror would be affected by such an influence. In addition, cases from other jurisdictions which have considered the prejudicial effect of an extraneous influence, make clear that prejudice is to be determined in light of the facts and circumstances in each case. “Where ... the precise extraneous matter is known but direct evidence as to its effect on the deliberations is not permitted, a sound balance is struck by a rule which looks to the probability of prejudice from the face of the extraneous matter in relation to the circumstances of the particular case.”

Id. (Emphasis added). Sub jvdice, the precise extraneous information is not known. This inhibits the ability to engage in a balancing which looks to the probability of prejudice in light of the extraneous matter viewed in the framework of the case as a whole. Stated otherwise, we are only provided with a reference to a reading from a law book, the details of which consist of no more than a mention to the book discussing “writing or written notice” on the topic of “good faith.” We are left in the dark as to how these terms were woven into the reading, i.e., did they consist of elemental aspects of the definition of good faith? Were the terms used in the negative or positive as part of the good faith definition? Were they merely collateral to the text-book discussion read by juror/Matthews on good faith? These areas could have been clarified had Motorists either deposed juror/Matthews or requested a post-trial hearing to resolve the potential prejudice to its case because of the alleged reading. See Carte, supra. It failed to act in a fashion to clarify an issue of doubt.

Motorists’ oblique reference to a claimed prejudicial effect of an outside influence upon a jury’s deliberation sheds no light on the ultimate question of potential prejudice. See Carter, supra (cases cited therein all detail the allegedly prejudicial conduct, which permitted a weighing of its potential prejudicial effect on the jury’s verdict).

Accordingly, we fail to discern how the trial court could “conclude[] that the extraneous influence provided the jury with information it did not have” when we have but a fleeting reference to two phrases (“writing” and “written notice”) as the sum and substance of what was read by juror/Matthews. Therefore, the trial court could not decide the second prong of the Carter test, i.e., whether the extraneous influence provided the jurors with information they did not have before them at trial.

Even if, arguendo, we were to hold that the reference to “writing” and “written notice” in juror/Jeanett’s affidavit was sufficient information to decide whether it was not provided to the jury through the trial court’s instructions, the quantity and quality of the “information” communicated to the jury precludes this Court from complying with Carter’s third step: whether the extraneous influence was emotional or inflammatory in nature, i.e., was it reasonably likely to have prejudiced the jury. Carter, supra, 529 Pa. at 422 & n. 7, 604 A.2d at 1017 & n. 7.

Even the trial court, on this third point of whether the information was emotional or inflammatory, conceded that “[tjhere [wa]s nothing in the affidavits that suggests any emotional or inflammatory evidence.” Trial Court Opinion at 6. As to the trial court’s conclusion that “a different legal standard” from that outlined in its charge to the jury was interjected into the case by juror/Matthews’ reading, this is pure speculation and surmise given the paucity of information as to exactly what was communicated to the jury.

Further, as in Carter, the trial court here directed the jury not to be influenced by any information obtained outside the courtroom; to-wit:

... Pm going to instruct you as to the law that you must apply to this case. The law applicable in this case is contained in these instructions. You should consider them as a whole and not pick out one or more instruction and disregard others. I caution you at the outset not to allow any sympathy, any prejudice or any other emotion to influence you. It is your duty to base your decision strictly on the evidence. The evidence which you are about to consider in reaching your decision consists of the testimony that you heard and the exhibits that you saw introduced. You must consider the testimony of all the witnesses and all of the exhibits, but you must not consider any testimony or exhibits to which I have sustained an objection or which I ordered stricken from the record. You are here for one purpose and one purpose alone. That is to discover the truth and to apply the law that I will explain to you to the truth as you discover it.
# * * * >fc sk
I’d like to now direct your attention to what we call the substantive law that is to be applied to this case. This is a case involving the obligation of an insurance company under the contract of insurance that it has with its insured.... In this case the plaintiff alleges that Motorists Mutual breached its duty of acting in good faith under the contract of insurance it had with Robert Leonard. This is a duty imposed by law to be applied to every contract of insurance.
Your duty is to decide under the facts of this case and the law that I will now explain to you whether Motorists is liable to the Boring estate for money damages beyond1 the limits of Leonard’s liability insurance coverage. The theory of Plaintiffs claim is that Motorists violated the duty of good faith that it had toward its insured, Robert Leonard.
Under an insurance contract, the insurer, the insurance company, has the right to exercise control over the disposition of claims against the insured within the policy limits whether it be by settlement or litigation. Thus, both the insured and the insurer have definite and separate interests in the disposition of such claims. Where there is little or no likelihood of a verdict or even a settlement within the limits of the policy coverage, the separate interests of the parties are, in effect, substantially hostile. Under such circumstances, it becomes all the more apparent that the insurer must act with the utmost good faith towards the insured in disposing of claims against the insured.
By asserting in the policy the right to handle all claims against the insured including the right to make a binding settlement, the insurer becomes — the insurer assumes a fiduciary position towards the insured and becomes obligated to act in good faith and with due care in representing the interests of the insured. If the insurer is derelict in this duty as when it negligently investigates a claim or unreasonably refuses an offer of settlement, it may be liable regardless of the limits of the policy for the entire amount of the judgment secured against the insured.
In other words, an insurance company owes its insured a duty of good faith, and a violation of that duty may lead to liability for the full amount of a verdict obtained against the insured. Good faith in the context of a decision not to settle must be a thoroughly honest, intelligent and objective one. It requires more than proof of sincerity. It must be a realistic one when tested by the necessarily assumed expertise of the insurance company. This expertise must be applied in a given case to a consideration of all the factors bearing upon the advisability of a settlement for the protection of the insured. While the view of the carrier, that is the insurance company, or its attorney as to liability is one important factor, a good faith evaluation requires more. It includes consideration of the anticipated range of a verdict should it be adverse, the strengths and weaknesses of all the evidence to be presented on either side so far as known, and the relative appearance, persuasiveness and likely appeal of the claimant, the insured, and the witnesses at trial.
There is no absolute duty on the part of an insured to settle a claim just because a possible judgment against its insured may exceed the amount of insurance coverage under the policy or merely because the insured demands that the claim be settled. Therefore, it is not enough for Plaintiff to simply prove a rejection by the insurer of an offer to settle the claim for the limits of the policy. In accordance with the laws that I have explained to you, in order for the Plaintiff to recover damages from Motorists in excess of the limits of Mr. Leonard’s liability insurance coverage, Plaintiff must prove that Motorists violated a duty of good faith in dealing with the original claim that Plaintiff had against Leonard.
In order to prove that Motorists violated its duty of acting in good faith, Plaintiff must prove that Motorists’ decision not to accept Plaintiffs settlement demands for the policy limits of $25,000 was not a thoroughly honest, intelligent and objective one.
In evaluating behavior and attitude of Motorists in handling the Plaintiffs’ request for the policy limits in full settlement of Plaintiffs claim against Mr. Leonard, you must focus your attention on the facts and circumstances in appearance at the time of the request for settlement were made.
You are to remember the testimony of the principles of law that I have given you ... You apply the law that I have given you to the facts as you find them and, thus, render a true and just verdict.
You should not be influenced by anything other than the evidence and the law in this case:

N.T. 11/19/92 at 4-5, 12-17, 18 & 21 (Emphasis added).

In light of the detailed and lengthy instructions provided by the court on the question of “good faith” conduct by the insurer/Motorists, we hold that juror/Jeanett’s affidavit contains insufficient information of the extraneous influence to which the jury was exposed. Accordingly, this Court cannot say with any degree of assuredness that there was a reasonable likelihood of prejudice, on the issue of “good faith,” because the jury was informed of the terms “writing and written notice.”

Unaware of the sequence in which the terms recalled by juror/Jeanett were read to the jury at large, whether preceded or succeeded by negative or positive modifiers (e.g., “no” writing or written notice required by the insurer to establish “good faith” behavior or a writing or written notice is required as.a condition precedent to establish “good faith” conduct by the insurer), we are left to speculate and surmise as to the context and substance of the complained-of communication. This we may not do.

Therefore, consistent with the precepts made mention of in Pittsburgh National Bank and expounded upon by Carter, supra, the ultimate objective being to foreclose the surfacing of prejudice against the insurer/Motorists, we hold that the trial court abused its discretion in finding that Motorists was likely prejudiced by the ex parte communication taking place during the jury’s deliberation.

Order reversed, original verdict reinstated and jurisdiction is relinquished.


author: CIRILLO, Judge:

text:
    646 A.2d 1205
    COMMONWEALTH of Pennsylvania v. Stacy KOREN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1994.
    Filed Aug. 25, 1994.

      Glenn M. Goodge, Easton, for appellant.
    Robert L. Steinberg, Dist. Atty., Allentown, for Com., appellee.
    Before McEWEN, CIRILLO and CERCONE, JJ.
   CIRILLO, Judge:

Stacy Koren appeals from the judgment of sentence entered by the Court of Common Pleas of Lehigh County, following her plea of nolo contendere to hindering apprehension or prosecution. We affirm.

On July 21, 1992, Larry Martin, Koren’s boyfriend, pled guilty to forty-eight counts of burglary, one count of attempted burglary, two counts of theft, and one count of receiving stolen property. At the conclusion of his guilty plea, Martin was ordered to surrender himself for sentencing to the Lehigh County Sheriffs Office, no later than August 10,1992. Martin failed to appear on August 10th, and a manhunt ensued for his apprehension.

On August 17, 1992, a detective contacted Koren and notified her that Martin was a fugitive and wanted by the police. At that time, Koren indicated to the detective that she was Martin’s girlfriend. Sometime after August 17, 1992, Koren conspired with her sister to rent a hotel room for Martin under her sister’s name. Martin stayed in this hotel room until he was apprehended by the police on September 4, 1992.

Koren and her sister were then arrested and charged with hindering apprehension or prosecution (felony three) and criminal conspiracy. On October 18, 1993, both Koren and her sister entered pleas of nolo contendere to hindering apprehension or prosecution as a misdemeanor of the second degree.

After considering the pre-sentence report and Koren’s testimony, the trial court, on December 15, 1993, sentenced Koren to two years probation. Two conditions were placed on Koren’s probation. First, Koren was to perform 100 hours of community service at a charitable organization. Second, Koren was to have no contact with her boyfriend, Martin, or his family during her two years of probation.

On December 27, 1993, Koren filed a motion to reconsider sentence, requesting a modification of sentence to allow contact with Larry Martin during the period of her probation. Koren’s motion was denied by the sentencing court. Koren presents two issues for our review:

(1) Whether the sentencing court abused its discretion by not adequately considering Appellant’s history and character when forming its probation order?

(2) Whether the sentencing court abused its discretion in imposing as a condition of probation, that Appellant refrain from contact with her boyfriend?

When the discretionary aspects of a judgment of sentence are questioned, an appeal is not guaranteed as of right. Commonwealth v. Moore, 420 Pa.Super. 484, 490, 617 A.2d 8, 11 (1992). Two criteria must first be met before a challenge to a judgment of sentence will be heard on the merits. See Commonwealth v. Cottam, 420 Pa.Super. 311, 346, 616 A.2d 988, 1005 (1992). First, an appellant must “set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence.” Pa.R.A.P. § 2119(f); Commonwealth v. Jones, 418 Pa.Super. 93, 99, 613 A.2d 587, 590 (1992). Second, an appeal will be granted only “where it appears that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code].” 42 Pa.C.S.A. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 513, 522 A.2d 17, 20 (1987).

In the case at hand, Koren has set forth in her brief a concise statement of the reasons for her appeal. We must now determine whether Koren has presented a substantial question before we can turn to the merits of her argument.

The determination of whether a substantial question exists must be determined on a case-by-case basis. Commonwealth v. Hlatky, 426 Pa.Super. 66, 82, 626 A.2d 575, 583 (1993). It is only where an appellant can articulate clear reasons why the sentence issued by the trial court compromises the sentencing scheme as a whole that we will find a substantial question and review the decision of the trial court. Tuladziecki 513 Pa. at 515, 522 A.2d at 20; Hlatky, 426 Pa.Super. at 82, 626 A.2d at 583. A substantial question exists where an appellant advances a colorable argument that the sentencing judge’s actions where either: (1) inconsistent with a specific provision of the Sentencing Code: or (2) contrary to the fundamental- norms which underlie the sentencing process. Hlatky, 426 Pa.Super. at 82, 626 A.2d at 583; Jones, 418 Pa.Super. at 99-100, 613 A.2d at 590.

Koren contends that the sentencing court did not adequately consider her prior history and character. This court has repeatedly held that the mere assertion that the sentencing court failed to give adequate weight to sentencing factors does not raise a substantial question. Jones, 418 Pa.Super. at 100, 613 A.2d at 587; Commonwealth v. Mobley, 399 Pa.Super. 108, 115-16, 581 A.2d 949, 952 (1990); Commonwealth v. Smith, 394 Pa.Super. 164, 167, 575 A.2d 150, 151 (1990). Accordingly, we find that Koren’s first contention does not raise a substantial question and deny her allowance of appeal from this aspect of her sentence.

Koren’s second contention is that the condition placed on her probation, prohibiting contact with her boyfriend, is unreasonable because it unduly restricts her liberty. Koren claims that this condition of probation is contrary to 42 Pa.C.S.A. § 9754(b), which only allows for reasonable conditions to be attached to probation orders. We find that Koren’s argument presents a substantial question, and we now turn to the merits of her contentions.

Our standard when reviewing the merits of the discretionary aspects of a judgment of sentence is very narrow; this court will reverse only where an appellant can demonstrate a manifest abuse of discretion on the part of the sentencing judge. Hlatky, 426 Pa.Super. at 83, 626 A.2d at 584; Commonwealth v. Wright, 411 Pa.Super. 111, 114, 600 A.2d 1289, 1291 (1991). However, the sentence imposed must be “consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.” Moore, 420 Pa.Super. at 491, 617 A.2d at 12 (quoting Com monwealth v. Devers, 519 Pa. 88, 92, 546 A.2d 12, 13 (1988)). When a sentence is within the guidelines, as it is in the present case, we can only reverse the order where it is clearly unreasonable. 42 Pa.C.S.A. § 9781(c)(2); Moore, 420 Pa.Super. at 491, 617 A.2d at 12 (citing Commonwealth v. Drumgoole, 341 Pa.Super. 468, 473, 491 A.2d 1352, 1354 (1985)).

When reviewing a judgment of sentence, we must accord the decision of the sentencing judge great weight, because he or she is in the best position to view a defendant’s character, defiance or indifference, and the overall effect and nature of the crime. Jones, 418 Pa.Super. at 101, 613 A.2d at 591. When formulating its order, the sentencing court must consider the nature of the criminal and the crime. Wright, 411 Pa.Super. at 115, 600 A.2d at 1292. The sentencing court should also consider the defendant’s prior record, age, personal characteristics, and potential for rehabilitation. Cottam, 420 Pa.Super. at 346, 616 A.2d at 1006.

A probation order is unique and individualized. It is constructed as an alternative to imprisonment and is designed to rehabilitate a criminal defendant while still preserving the rights of law-abiding citizens to be secure in their persons and property. Commonwealth v. McBride, 289 Pa.Super. 396, 398, 433 A.2d 509, 510 (1981). When conditions are placed on probation orders they are formulated to insure or assist a defendant in leading a law-abiding life. 42 Pa.C.S.A. § 9754(b); see Commonwealth v. Crosby, 390 Pa.Super. 140, 144, 568 A.2d 233, 235 (1990).

In the instant case, the Honorable Lawrence J. Brenner placed the no-contact condition on Koren’s probation for rehabilitative purposes. While Judge Brenner does not specifically state that the condition is for rehabilitation, it is obvious from his comments during the sentencing hearing that the no-contact condition was meant to assist Koren with her future as a law-abiding citizen. Our task is to determine whether the condition of probation that Koren have no contact with her boyfriend for two years was reasonable, because, as long as conditions placed on probation are reasonable, it is within a sentencing judge’s discretion to order them. 42 Pa.C.S.A. § 9754(b).

Koren argues that the no-contact condition is unreasonable because it unduly restricts her liberty. However, a person placed on probation “does not enjoy the full panoply of constitutional rights otherwise enjoyed by those who [have] not run afoul of the law.” McBride, 289 Pa.Super. at 399, 433 A.2d at 510 (quoting Barlip v. Penna. Board of Probation and Parole, 45 Pa.Commw. 458, 463, 405 A.2d 1338, 1340 (1979)). A probation order with conditions placed on it will to some extent always restrict a person’s freedom. Id.

Pennsylvania’s probation statute specifically allows for an order of probation to require that a defendant refrain from consorting with disreputable persons. 42 Pa.C.S.A. § 9754(c)(6). Pennsylvania’s probation statute states that:

(c) Specific conditions. — The court may as a condition of its order require the defendant:
... (6) To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons.

42 Pa.C.S.A. § 9754(c). It is undisputed that Koren’s boyfriend, Martin, is a criminal and is currently in prison. Had it not been for her association with this disreputable person, Koren would not have been in trouble with the law. While the sentencing court can order a no-contact condition on probation, it can only do so when that condition is reasonably calculated to aid in the defendant’s rehabilitation. 42 Pa. C.S.A. § 9754(b).

Furthermore, this court has consistently held that no-contact conditions are neither unreasonable nor unduly restrictive of a person’s liberty. See Commonwealth v. McBride, 289 Pa.Super. 396, 433 A.2d 509 (1981); Commonwealth v. Reggie, 264 Pa.Super. 427, 399 A.2d 1125 (1979). In McBride, the appellant was convicted of corrupting the morals of a minor. As a condition of probation, McBride was to have no contact with the juvenile whose morals he had corrupted. This court held that the no-contact condition was not unreasonable and was necessary to the rehabilitative needs of McBride. Commonwealth v. McBride, 289 Pa.Super. 396, 433 A.2d 509 (1981).

The no-contact condition in Reggie was more broad than the one in McBride. In Reggie, the defendant was found guilty of corruption of a minor and indecent assault. The order of probation specified that Reggie was to stay away from juveniles and young adults. Again the court found that the no-contact condition was reasonable. Commonwealth v. Reggie, 264 Pa.Super. 427, 399 A.2d 1125 (1979).

Similar to McBride and Reggie, we find that Koren’s no-contact probation condition is reasonable and necessary for her rehabilitation. Koren committed a serious crime. Knowing that the police were looking for her boyfriend, Koren procured a hotel room in which to hide Martin from the police. Koren could be incarcerated for such conduct. Instead, recognizing Koren’s record-free past and her potential for rehabilitation, Judge Brenner chose to give Koren probation.

Koren was living a law-abiding life until she met Martin, and the record reflects that Koren’s potential for getting back to living that law-abiding life is much greater if she has no contact with Martin. Koren’s only crimes stemmed from her association with Martin. We feel it was reasonable for Judge Brenner to order that Koren have no-contact with Martin during her two years of probation, and we agree that the no-contact condition would assist Koren in living a law-abiding life. 42 Pa.C.S.A. § 9754(b).

Koren contends in her brief that Martin is currently her fiance, but this fact is not found in the official record. However, even if Martin is actually Koren’s fiance, that fact does not change our analysis of the case. While not binding, we find several cases from other jurisdictions to be very persuasive in this area of law.

In United States v. Bortels, 962 F.2d 558 (6th Cir.1992), the defendant was charged with several crimes, including harboring or concealing a person for whom an arrest warrant had been issued. The case arose when Bortels led the Michigan State Police and a U.S. Deputy Marshal on a high speed chase, after having been informed that her passenger (fiance) was under arrest. A magistrate sentenced Bortels to six months of incarceration and a one year period of supervised release. As a condition of her supervised release, Bortels was ordered to have no contact with anyone convicted of a felony, particularly her fiance. In ordering this condition, the magistrate recognized that Bortels would not be in jail but for her association with her fiance and that her rehabilitation would be aided if she avoided future contact with him. Because the condition was reasonably related to Bortels’ rehabilitation and the protection of the public, the Sixth .Circuit held that the trial court did not abuse its discretion in imposing the no-contact condition. Id.

In Edwards v. State, 74 Wis.2d 79, 246 N.W.2d 109 (1976), the defendant pled guilty to three offenses, including aiding an escape from custody, when she smuggled a hacksaw blade and a pipe wrench into jail to aid the escape of two felons, one of whom was the defendant’s fiance. As a condition of probation, Edwards was to have no-contact or association with the two felons. Edwards appealed, asking that she be allowed to see her fiance and that they be allowed to communicate by mail. The Wisconsin Supreme Court denied Edwards’ requests and upheld the no-contact condition of probation, recognizing that while the condition was restrictive of Edwards’ liberty, it was not unduly so because it was integrally related to her rehabilitation. Id. see also State v. Quakenbush, 113 Or.App. 263, 832 P.2d 1236 (Ct.1992) (condition of probation that the defendant not associate with co-defendant fíance/husband was upheld out of concern for child’s safety); State v. Allen, 12 Or.App. 455, 506 P.2d 528 (Ct.1973) (conditions of probation that the defendant not associate with known criminals, including her fiance, and that she obtain the court’s permission before she enter into any marriage were upheld); but see State v. Martin, 282 Or. 583, 580 P.2d 536 (1978) (condition of probation that the defendant not associate with known criminals, including her husband, was reversed in part because trial judge did not state sufficient reasons and the limited facts of the case did not justify ordering a wife not to see her husband).

In the present case, it was reasonable for the sentencing judge to order Koren not to have any contact with her fiance. While the no-contact condition is restrictive, it is not unduly so. The sentencing court was in the best position to weigh such factors as Koren’s decision to hide her fiance from the police and her defiant attitude expressed to the police that she would do the same thing again. Furthermore, the no-contact condition of probation was reasonably related to Koren’s rehabilitation. According, we find that Judge Brenner did not abuse his discretion in ordering as a condition of probation that Koren have no contact with her fiance, Martin.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 5105(a)(2).

      . Koren contends in her brief that Martin is currently her fiance.

      . 18 Pa.C.S.A. § 5105(a)(2).

      . 18 Pa.C.S.A. § 903(a)(1), (2).

      . 18 Pa.C.S.A. § 5105(a)(2).

        . Conditions Generally. — The court shall attach such of the reasonable conditions authorized by subsection (c) of this section as it deems necessary to insure or assist the defendant in leading a law-abiding life. 42 Pa.C.S.A. § 9754(b).

      . It is undisputed that Koren's sentence of two years probation is within the guidelines. The guidelines for a misdemeanor of the second degree with a prior record score of zero are as follows: standard range, zero to intermediate punishment; aggravated range, intermediate punishment to six months; and mitigated range, non-confinement. 42 Pa.C.S.A. § 9721.

      . Had the judge sentenced in the aggravated range, Koren could have been sent to jail for six months under a misdemeanor of the second degree. 42 Pa.C.S.A. § 9721. Had the crime not been pled down from a felony three, Koren could have faced up to 18 months in prison. 42 Pa.C.S.A. § 9721.

      . This charge was dropped when Bortels agreed to plead guilty to other charges.


text:
    646 A.2d 1211
    COMMONWEALTH of Pennsylvania v. Rufus POINDEXTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1994.
    Filed Aug. 25, 1994.

      Robert M. Barrett, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before McEWEN, CIRILLO and CERCONE, JJ.
   CIRILLO, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Allegheny County. We affirm.

A jury found defendant Rufus Poindexter guilty of one count of rape, two counts of involuntary deviate sexual intercourse, one count of statutory rape, and one count of corruption of minors. Poindexter filed post-trial motions for a new trial and an arrest of judgment. New counsel, Robert M. Barrett, was then secured and an additional motion for a new trial was filed.

The Honorable Walter R. Little denied Poindexter’s post-trial motions on August 16,1993. Poindexter was immediately sentenced as follows: on the rape conviction, not less than five nor more than fifteen years incarceration; on the involuntary deviate sexual intercourse conviction, not less than five nor more than fifteen years incarceration, concurrent with that imposed on the rape conviction; on the corruption of minors conviction, incarceration of not less than one nor more than five years, to run consecutive to the sentence imposed on the rape conviction; and on the second involuntary deviate sexual intercourse conviction, not less than five nor more than fifteen years of imprisonment, concurrent with that imposed on the rape conviction. A finding of guilt with no further penalty was entered with respect to the statutory rape conviction.

• After sentencing, Poindexter timely filed a notice of appeal from the judgment of sentence. Poindexter presents the following issues for our review:

(1) Whether the evidence of record was insufficient to sustain the verdicts rendered?

(2) Whether trial counsel was ineffective for failing to call witnesses, failing to take the time necessary to adequately prepare, and for losing a copy of a letter which the victim’s mother had given Poindexter?

(3) Whether the trial court erred in failing to grant a request for an alibi charge?

It is well established that in evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Jarman, 529 Pa. 92, 94-95, 601 A.2d 1229, 1230 (1992); Commonwealth v. Swann, 431 Pa.Super. 125, 128-29, 635 A.2d 1103, 1105 (1994). “This standard is equally applicable to cases where the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Swerdlow, 431 Pa.Super. 453, 458-60, 636 A.2d 1173,1176 (1994) (citing Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988)). Furthermore, it matters not whether the appellant finds a witness’s testimony lacking in credibility; such matters are solely within the province of the jury as trier of fact and, as such, will not be assailed on review by this court. Id.

Poindexter was found guilty of rape, involuntary deviate sexual intercourse, statutory rape, and corruption of minors. The definition of the offense of rape is set forth in 18 Pa.C.S.A. § 3121. In part, section 3121 states:

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; [or]
* * * * * *
(4) who is so mentally deranged or deficient that such person IS INCAPABLE OF CONSENT.

18 Pa.C.S.A. § 3121 (emphasis added). One of the requirements for rape is “penetration, however slight.” 18 Pa.C.S.A. § 3101 (Purdon’s Supp.1992). There is no requirement, however, that penetration reach the vagina. Commonwealth v. Trimble, 419 Pa.Super. 108, 112, 615 A.2d 48, 50 (1992) (citing Commonwealth v. McIlvaine, 385 Pa.Super. 38, 47, 560 A.2d 155, 159 (1989)). As to the charges of rape, involuntary deviate sexual intercourse, and statutory rape, the Crimes Code provides that testimony of a victim need not be corroborated. 18 Pa.C.S.A. § 3106. In Commonwealth v. Gabrielson, 370 Pa.Super. 271, 536 A.2d 401 (1988), this court held that the uncorroborated testimony of a rape victim, if believed by the jury, is sufficient to support a rape conviction and no medical testimony is needed to corroborate a victim’s testimony if the testimony was rendered credible by the jury. See also Trimble, supra (where a five-year-old victim’s testimony that defendant placed his “weiner,” penis, in her “tooter,” vaginal area, established penetration and supported the rape conviction); see also Commonwealth v. Kunkle, 424 Pa.Super. 499, 503, 623 A.2d 336, 338 (1993) (holding that uncorroborated testimony of the sex offense victim may be sufficient to establish the guilt of the accused); Commonwealth v. Cody, 401 Pa.Super. 85, 584 A.2d 992 (1991) (holding that sex offense victim’s testimony alone provided sufficient evidence to establish defendant’s guilt of involuntary deviate sexual intercourse, indecent assault, and corruption of minors beyond a reasonable doubt); Commonwealth v. White, 341 Pa.Super. 261, 272, 491 A.2d 252, 258 (1985); Commonwealth v. Stoner, 284 Pa.Super. 364, 425 A.2d 1145 (1981) (holding that the uncorroborated testimony of a 12-year-old victim was sufficient to establish defendant’s guilt in a prosecution for statutory rape, involuntary deviate sexual intercourse, and corrupting morals of a minor).

In the case at hand, the victim, age 8, testified that on December 27, 1992, Poindexter made her suck his “private part” and inserted his “private part” in her “private part” and in her “butt.” Mary Currasco, M.D., a qualified expert on child abuse matters, testified that her findings were consistent with repeated penetration and ongoing sexual abuse.

Next, sufficient evidence exists to support a finding of compulsion or a threat of forcible compulsion that would prevent resistance by a person of reasonable resolution. 18 Pa.C.S.A. § 3121. The threat of forcible compulsion, in this case, came from the victim’s testimony that Poindexter threatened to whip the victim if the victim told anyone of the incidents. This evidence, when viewed in the light most favorable to the Commonwealth as verdict winner, is clearly sufficient to sustain Poindexter’s conviction of rape.

Notwithstanding a finding of compulsion-or a threat of forcible compulsion, we find that the evidence is sufficient to demonstrate beyond a reasonable doubt that Poindexter engaged in sexual intercourse with a person — an eight year old child — who was “so mentally ... deficient that such person [was] incapable of consent.” 18 Pa.C.S.A. § 3121(4). Common sense and human experience tells us that a child of such tender years cannot and should not be expected to know and/or appreciate the nature and implications of adult sexual relations. See Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986) (holding that an eight year old child was so mentally deficient as a matter of law that she was incapable of consenting to sexual intercourse, an act whose nature she could neither appreciate nor comprehend).

Poindexter was found guilty of two counts of involuntary deviate sexual intercourse. Under 18 Pa.C.S.A. § 3123, the offense of involuntary deviate sexual intercourse is defined as follows:

A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
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(5) who is less than 16 years of age.

18 Pa.C.SA. § 3123. The crime of involuntary deviate sexual intercourse occurs when the actor, by physical compulsion or threats thereof, coerces the victim to engage in acts of anal and/or oral intercourse. Commonwealth v. Troy, 381 Pa.Super. 326, 553 A.2d 992 (1989), appeal denied, 525 Pa. 626, 578 A.2d 413 (1990). The penetration requirement for involuntary deviate sexual intercourse is also “penetration, however slight.” 18 Pa.C.S.A. § 3101 (Purdon’s Supp.1992).

Here, the victim testified that on two separate occasions, December 25, 1992 and December 27, 1992, Poindexter made her suck his “private part.” Poindexter also threatened to whip her if the victim told anyone about the incident. This, along with the fact that the victim is eight years old, constitutes involuntary deviate sexual intercourse. Reviewing this evidence in the light most favorable to the Commonwealth, as verdict winner, it is clear that the evidence is sufficient to affirm Poindexter’s two convictions of involuntary deviate sexual intercourse.

Next, the definition of the offense of statutory rape is set forth in 18 Pa.C.S.A. § 3122:

A person who is 18 years of age or older commits statutory rape, a felony of the first degree, when he engages in sexual intercourse with another person not his spouse who is less than 14 years of age.

18 Pa.C.S.A. § 3122.

We have already found that the evidence presented supports convictions for rape and involuntary deviate sexual intercourse. Considering this, along with the fact that the victim was under the age of 14 and the defendant was over the age of 18 at the time of the incident, it is clear the evidence is sufficient to support Poindexter’s conviction for statutory rape.

Finally, the offense of corruption of minors is defined in 18 Pa.C.S.A. § 6301 as follows:

Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age ... is guilty of a misdemeanor of the first degree.

18 Pa.C.S.A. § 6301. As to this offense, we find that the victim’s testimony establishes sufficient evidence to sustain Poindexter’s conviction. Since we have found the evidence sufficient to support convictions for rape, involuntary deviate sexual intercourse, and statutory rape, there clearly is sufficient evidence present that reveals that Poindexter performed a multitude of acts that would corrupt a minor.

Next, Poindexter argues that trial counsel, Ira C. Houck, was ineffective in failing to subpoena and call witnesses at the time of trial, failing to take the time necessary to adequately prepare by interviewing Poindexter and identify witnesses, and losing a copy of a letter which the victim’s mother had given Poindexter.

In evaluating a claim of ineffective assistance of counsel, our standard of review is well settled. We presume that trial counsel is effective and place on the defendant the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990). We are first required to determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). If the claim is without merit our inquiry ends, because counsel will not be deemed ineffective for failing to pursue an issue which is without basis. Id. If, however, the claim has merit, the defendant still must establish that the course of action chosen by his or her counsel had no reasonable basis designed to effectuate the client’s interests. Id. Finally, the defendant must show that counsel’s ineffectiveness so prejudiced his or her case that he or she was denied a fair trial. Commonwealth v. Pierce, 515 Pa. 153, 159-60, 527 A.2d 973, 975-76 (1987).

To establish a claim that counsel was ineffective for failing to investigate or call witnesses, appellant must establish four essential points of information. First, he must identify the alleged witnesses. Second, he must demonstrate that defense counsel knew of the existence of those witnesses prior to the time of trial. Third, he must demonstrate the witnesses would have provided material evidence at the time of the trial. Fourth, the appellant must establish the manner in which the witnesses would have been helpful to his or her case. Commonwealth v. Mason, 427 Pa.Super. 243, 259, 628 A.2d 1141, 1149, 1150 (1993) (citing Commonwealth v. Weinder, 395 Pa.Super. 608, 577 A.2d 1364 (1990)).

Poindexter contends that he gave his counsel a list of names of people who would testify on his behalf. These names included Charles Bishop Majors, Richard Poindexter, his brother, Dorothy Trent, Delores LaSane, Thomas Hall, and Henry Poindexter. Poindexter claims that counsel failed to interview these witnesses.

Concerning Dorothy Trent, Delores La Sane, Thomas Hall, and Henry Poindexter, counsel cannot be found to be ineffective for failing to call them as witnesses. In order to prove that counsel was ineffective for failing to investigate or call witnesses, the appellant must not only set forth the names and whereabouts of the witnesses, he must also show that trial counsel knew of the existence of the witness who allegedly should have been called. Mason, 427 Pa.Super. at 259, 628 A.2d at 1150. The record states that these particular names were first revealed to counsel at the post-trial hearing. As a result, Poindexter has provided no evidence counsel was aware of these additional witnesses or that they were available to testify. He has failed to satisfy the first two requirements set forth in Mason, supra. This claim is, therefore, meritless.

As to the remaining witnesses, the record indicates that counsel interviewed Richard Poindexter and determined that he would not be a viable witness, because he was unable to establish an alibi for the late afternoon hours in which the offense was alleged to have occurred. Due to this determination by trial counsel, Richard was not called as a witness.

Our Supreme Court has held that the failure to call a witness is not per se ineffective assistance of counsel. Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982). The decision whether to call a witness generally involves a matter of trial strategy. Commonwealth v. Davis. 381 Pa.Super. 483, 554 A.2d 104 (1989). “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland v. Washington, 466 U.S. 668, 688, 690-91, 104 S.Ct. 2052, 2064-65, 2066, 80 L.Ed.2d 674 (1984). The failure to call a possible witness will not be equated with a conclusion of ineffectiveness, absent some positive demonstration that the testimony would have been helpful to the defense. Commonwealth v. Davis, 381 Pa.Super. at 496, 554 A.2d at 111 (citing Commonwealth v. Bulard, 305 Pa.Super. 502, 451 A.2d 760 (1982)).

In the case at hand, Poindexter has failed to demonstrate that his brother’s testimony would have been helpful to the defense. Furthermore, Poindexter’s claim concerning this witness has failed the third and fourth requirements set forth in Mason, supra. He failed to demonstrate that the witness would have provided material evidence at the time of the trial and the manner in which the witness would have been helpful to his case. Mason, 427 Pa.Super. at 259, 628 A.2d at 1150. This claim, therefore, is also without merit.

Poindexter next claims that counsel was ineffective for not calling Charles B. Major as a witness after Poindexter had identified him to his counsel. With respect to Mr. Major, he was subpoenaed, but he failed to appear for trial. As a consequence, the record is devoid of proof of the substance of his evidence. Commonwealth v. Hentosh, 520 Pa. 325, 334, 554 A.2d 20, 25 (1989). We, therefore, are unable to determine whether his testimony would have been favorable. Id. Poindexter has failed to sustain his burden of demonstrating that counsel was ineffective. This claim, therefore, is without merit.

Poindexter next claims that trial counsel was ineffective in failing to take the time necessary to adequately prepare for trial. He claims his trial counsel only spoke with him once by telephone and met with him on one occasion for approximately ten minutes prior to the start of trial.

The Pennsylvania Supreme Court, in Commonwealth v. Bundy, 491 Pa. 607, 608, 421 A.2d 1050 1051 (1980), held that the time devoted to attorney-client consultations affords no basis for inferring the total extent of trial preparation. Furthermore, failure to conduct a more intensive investigation, in the absence of any indication that such investigation would develop more than was already known, simply does not constitute ineffective assistance of counsel. Commonwealth v. Wallace, 495 Pa. 295, 298, 433 A.2d 856, 858 (1981) (citing Commonwealth v. Ford, 491 Pa. 586, 592, 421 A.2d 1040, 1043 (1980)); Commonwealth v. Fierst, 423 Pa.Super. 232, 248, 620 A.2d 1196, 1205 (1993).

Contrary to Poindexter’s assertions, the record indicates that counsel talked with Poindexter on several occasions. Four of these instances, May 21, May 24, June 4, and June 8, all in 1993, were specifically geared for case preparation. These, however, were not the only times that trial counsel had spoken with Poindexter. Trial counsel, by way of testimony, also indicated that he investigated witnesses and discussed certain trial strategy with such witnesses. The record reveals that trial counsel was adequately prepared for trial. We conclude, therefore, that Poindexter’s ineffectiveness claim is meritless.

Poindexter’s final ineffective assistance of counsel claim concerns the loss of a copy of a letter which the victim’s mother, Barbara Ramsey, had given to Poindexter. Poindexter claims that his trial counsel lost the written statement that Barbara Ramsey wrote to Poindexter stating that she loved Poindexter and that she knew that Poindexter did not touch her daughter.

At the post-trial hearing, Counsel testified that he was never aware of a letter written to Poindexter by the victim’s mother, Barbara Ramsey. Furthermore, trial counsel and Poindexter testified that they did not discuss the written statement or what Poindexter expected Ms. Ramsey’s testimony to be prior to trial. Poindexter failed to indicate to his trial counsel, at any point during trial, that he should call Ms. Ramsey as a witness to testify as to the alleged written statement even though Ms. Ramsey was listed as a witness for the Commonwealth. Counsel cannot be held ineffective for allegedly losing a note that he did not receive. Moreover, because Ms. Ramsey did not testify at trial, counsel would not have been able to introduce the note into evidence, if it existed, on hearsay grounds. There is no basis to find Poindexter’s counsel ineffective. This claim is without merit.

Poindexter’s final contention is that the trial court erred in failing to grant his request for an alibi charge. Specifically, Poindexter claims that, despite failing to provide the prosecution with adequate notice of his intention to pursue an alibi defense, the court was nonetheless required to charge the jury with an alibi instruction, as evidence of Poindexter’s alibi was introduced at trial. We disagree.

The Pennsylvania Supreme Court has defined alibi as “a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.” Commonwealth v. Roxberry, 529 Pa. 160, 163, 602 A.2d 826, 827 (1992); see Commonwealth v. Jones, 529 Pa. 149, 150-54, 602 A.2d 820, 821-22 (1992) (acknowledging alibi charge to jury as accurately stating the law: “whether the testimony given covers the entire time the offense is shown to have been committed and whether it precludes the possibility of defendant’s presence at the scene.”); Commonwealth v. Pounds, 490 Pa. 621, 631, 417 A.2d 597, 602 (1980) (holding that the testimony of the defendant which placed him at locations distinct from the vicinity of the crime at the time it was committed was sufficient to raise an alibi defense).

An alibi instruction is required if the defendant presents evidence which covers the time period when the crime was committed and which puts him at a different location than that of the crime scene. Commonwealth v. Repaci 419 Pa.Super. 591. 594-95, 615 A.2d 796. 798 (1992). It is not necessary for an alibi defense to be corroborated in order to constitute an alibi. See Roxberry, 529 Pa. at 165, 602 A.2d at 828; Commonwealth v. Saunders, 529 Pa. 140, 602 A.2d 816 (1991); Commonwealth v. Willis, 520 Pa. 289, 553 A.2d 959 (1989) (all requiring an alibi instruction when the alibi defense had been presented solely by the unsupported testimony of the defendant). There is no minimum or threshold quantum of physical separation necessary for a defense to constitute an alibi, so long as the separation makes it impossible for the defendant to have committed the crime. Id.

It will be the duty of the trial judge to carefully instruct the jury as to the relationship of the evidence of the prosecution and the evidence of the defendant as each bears upon the essential elements of the crime charged. Commonwealth v. Bonomo, 396 Pa. 222, 231-232, 151 A.2d 441, 446 (1959). Where an alibi defense is presented, such an instruction is necessary due to the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant’s guilt. Pounds, 490 Pa. at 634, 417 A.2d at 603; Willis, 520 Pa. at 294, 553 A.2d at 962; Commonwealth v. Gainer, 397 Pa.Super. 348, 356, 580 A.2d 333, 337 (1990); Commonwealth v. Fromal, 392 Pa.Super. 100, 120, 572 A.2d 711, 721 (1990). The instruction on alibi is to emphasize that the defendant is not required to disprove any elements of the crime charged, but that the defense’s evidence of alibi, even if not wholly believed, may create a reasonable doubt. Fromal, 392 Pa.Super. at 119, 572 A,2d at 721.

The right to present evidence of an alibi and to receive a jury instruction therefrom, however, is not absolute. In order to obtain this right, a defendant must comply with the notice requirement set forth in Rule 305 of the Pennsylvania Rules of Criminal Procedure. Rule 305 provides that if a defendant intends to offer the defense of alibi at trial, the defendant must file of record notice prior to trial with the prosecuting attorney. Such notice must contain specific information as to the place or places where defendant claims to have been at the. time of the alleged offense and the names and addresses of witnesses whom the defendant intends to call in support of such claim. Pa.R.Crim.P. 305(C)(1)(a). Furthermore, Rule 305 also provides, in part:

If the defendant fails to file and serve notice of alibi defense as required by this rule, or omits any witness from such notice, the court at trial may exclude the testimony of any omitted witness, or 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.

Pa.R.Crim.P. 305(C)(1)(d) (emphasis added). Accordingly, Rule 305 enables the trial court, when the notice requirement is not met, to take such measures as preventing an alibi witness from testifying and to deny a request for an alibi instruction. Rule 305 is “designed to enhance the search for truth in the criminal trial by insuring 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).

In Commonwealth v. Anthony, 376 Pa.Super. 623, 546 A.2d 1122 (1988), the defendant presented a defense of alibi. Not only did he testify to his whereabouts, but he attempted to call two other people as witnesses to corroborate his story. Id. at 627, 546 A.2d at 1124. The defendant, in that case, failed to give adequate notice of his defense until the day of the trial. The court prohibited the alibi witness from testifying, concluding that the defendant failed to give adequate notice of his intent to present a defense of alibi, thus denying the Commonwealth the opportunity to investigate the alibi. Accordingly, because the court had the discretion to exclude that testimony under Pa.R.Crim.P. 305(C)(1)(d), we concluded that the court did not err in prohibiting the alibi witnesses from testifying. Id. See also Commonwealth v. Zimmerman, 391 Pa.Super. 569, 575-78, 571 A.2d 1062, 1065-67 (1992) (holding that defendant violated Rule 305, failing to timely file a notice of an alibi defense, and was properly precluded from introducing alibi evidence).

In the case at hand, Poindexter failed to provide notice, prior to trial, of his intention to present the defense of alibi to the prosecution. Despite such failure, Poindexter elicited testimony at trial as to the incident occurring on December 25th. The record discloses that the testimony of Poindexter does not establish a defense of alibi for the crime on December 25th. The victim testified that the sexual assault occurred in Poindexter’s home after 4:00 p.m. on December 25,1992. Poindexter testified that he was out with friends all night on Christmas Eve until Christmas morning. He further stated that he was in and out of his home, 446 Rosedale, all day on the 25th, but that he returned to his home and went to sleep around 4 p.m.

Concerning the December 25th incident, Poindexter’s own testimony, during trial, placed him in his home at the time the incident occurred on December 25th. Therefore, due to Poindexter’s own admission that did not place him away from the scene of the crime at the relevant time, and so removed therefrom as to render it impossible for him to be the guilty party, he was not entitled to an alibi instruction with respect to the December 25th charge. Commonwealth v. Weinder, 395 Pa.Super. 608, 618, 577 A.2d 1364, 1370 (1990).

As to the incident on December 27, 1992, Poindexter was more successful at establishing a potential alibi. The victim testified that her mother went to Poindexter’s mother’s house to bake a cake. She stated that when her mother left, Poindexter made her suck his “private part” and put his “private part” in her “private part” and in her “butt.” On December 29, 1992, the victim told Officer Billups, at Children’s Hospital, that between 11 p.m. and 11:30 p.m. on the 27th, after her mother left for Poindexter’s mother’s house, Poindexter assaulted her.

At trial, Poindexter presented the testimony of Debra Fisher, his ex-wife. Both Poindexter and Ms. Fisher testified at trial that Poindexter, Barbara Ramsey, and Debra Fisher were at Ms. Fisher’s home from approximately 10:00 or 10:30 on the evening until 12:30 or 12:45 in the morning. According to Fisher’s testimony, Poindexter arrived with Barbara Ramsey at 10:00 or 10:30 in the evening to bring a birthday cake for Poindexter’s son. Fisher testified that the victim was not with the couple. Ms. Fisher also stated that she was sure of the time they had left, because she was having company at 1:00 a.m. and she wanted Poindexter and Ms. Ramsey out of her home.

Poindexter stated that on the 27th of December, he was at his mother’s house preparing for his son’s birthday party. He said he went down to his mother’s house about 7:00 p.m. Poindexter then testified that he and Barbara Ramsey left his mother’s house around 9:00 p.m. and headed for Debra Fisher’s house. He stated that the victim remained at his mother’s home until they returned from Ms. Fisher’s house at 1:00 a.m. He then gave the key to the apartment to Barbara Ramsey, and Ms. Ramsey and the victim walked to Poindexter’s home. Poindexter further testified that he did not return to his home until approximately 2:00 in the morning because he stayed at his mother’s and cleaned up the mess from baking the cake.

As to the crime committed on December 25th, as stated earlier, we agree with the court that Poindexter’s alibi evidence did not place him away from the scene of the crime at the relevant time and he, therefore, was not entitled to an alibi instruction for that incident. However, we disagree with the court concerning Poindexter’s alibi evidence for December 27th. In Repací, supra, we stated that the evaluation of evidence for an alibi requires a court to take all pertinent testimony as true. Repací, 419 Pa.Super. at 595, 615 A.2d at 798. It does not, however, require us to treat testimony, which is offered with uncertainty, as if it were certain. Id. In Repací, we stated that “if the alibi witness had testified that he had seen defendant in the sub shop between 10:00 p.m. and 10:30 p.m., it would be the trial court’s and our responsibility to view that evidence as if it were true, in order to determine if that version of the facts would preclude the possibility that appellee was the guilty party.” Id.

In the instant case, Ms. Fisher testified that Poindexter was at her home from 10:00 in the evening on December 27th until around 12:30 or 12:45 the next morning. Poindexter corroborated the testimony that he was at Ms. Fisher’s home from approximately 10:00 p.m. on the 27th to 12:30 or 1:00 the next morning. The victim testified and the police officers confirmed her testimony, that around 11:00 or 11:30 on the evening of the 27th, the victim was sexually assaulted.

We are required to take all pertinent testimony as true in order to determine if that version of the facts would preclude the possibility that Poindexter is the guilty party. The testimony, taken as whole, presents evidence which covers the time period when the crime was allegedly committed and which puts Poindexter at a different location than that of the crime. Such testimony constitutes evidence of alibi.

At the close of testimony, after the charge to the jury, Poindexter requested that the jury be instructed as to the defense of alibi. Judge Little summarily denied this request for an alibi instruction to the jury citing Rule 305 of the Rules of Criminal Procedure, failure to give notice of any alibi defense. Specifically, Judge Little stated in the record:

THE COURT: You never gave the Commonwealth notice of any alibi defense. You know the rules of discovery; 305, 306 and 307.
MR. HOUCK: Still request one, your Honor.
THE COURT: How can you request an alibi notice when you did not follow the rules and give the Commonwealth notice of alibi?
MR. HOUCK: My argument was that he was not present and that was his testimony.
THE COURT: But you never presented that alibi, notice of alibi testimony to the Commonwealth which you’re required to do - under the rules; . okay?

We find that this ruling was entirely within the discretion and authority of the trial court. Rule 305(C)(1)(d) clearly enables the trial court to take whatever action is within the interests of justice, when no notice is properly provided as to the alibi defense. Judge Little, therefore, acted properly in denying Poindexter’s request for an alibi instruction. Zimmerman, supra; Anthony, supra.

In the opinion written pursuant to Pa.R.A.P. 1925(a), the trial court misapprehended the facts in determining that Poindexter’s testimony precluded him from receiving an alibi instruction. Poindexter’s testimony, along with that of his witness, did provide an alibi. However, Poindexter failed to give notice of an alibi defense, a violation of Rule 305. On these grounds, it is clear that the court was not in error when it denied Poindexter’s request for an alibi instruction. See Commonwealth v. Harper, 416 Pa.Super. 608, 611 A.2d 1211 (1992) (appellate court may affirm decision of trial court if there is any basis on the record to support the trial court’s action).

Judgment of sentence affirmed.

      . Rule 305 provides that a defendant who intends to offer the defense of alibi at trial shall, at the time required for filing the omnibus pretrial motion under Rule 306, file of record notice signed by the defendant or the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense.