author: POPOVICH, Judge: OLSZEWSKI, Judge,

text:
    491 A.2d 181
    COMMONWEALTH of Pennsylvania v. Phillip Leroy BRYANT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 15, 1984.
    Filed March 29, 1985.
    Petition for Allowance of Appeal Denied Oct. 4, 1985.

      Timothy M. Carland, Public Defender, Industry, for appellant.
    Edward J. Tocci, District Attorney, Beaver, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by appellant, Phillip Leroy Bryant, from the concurrent sentences of 2 lk to 5 years imposed by the Court of Common Pleas of Beaver County for convictions of firearms not to be carried without a license and former convict not to own a firearm. We reverse in part and affirm in part.

The facts, viewed in a light most favorable to the verdict-winner, reveal that on July 5, 1982, at approximately 7:28 p.m., City of Beaver Falls police officer Lloyd Haswell received a radio call to proceed to the rear of 705 Ninth Avenue to investigate “a complaint that a Leroy Phillip Bryant had a weapon in his possession” and he had been firing it. The officer knew appellant for some 15 years and that he had been convicted previously.

Upon the officer’s arrival at the scene, he walked around to the side of the house. As he approached the rear of the residence, a juvenile by the name of Goosby ran past him. He then observed two men, one of whom was appellant, get up from the porch floor. Upon doing so, appellant and the second individual saw the officer and tried to enter the house through the back entrance. The officer then stated he saw “a .357 Magnum sticking out from the coat of Mr. Bryant, and at that time [he] grabbed the gun and the coat at the same time and placed Mr. Bryant under arrest.” The weapon contained three live rounds. Thereafter, Bryant was patted down “real quick” to assure the officer that he (Bryant) had no other weapons on his person.

At trial, in contrast to the content of the suppression hearing recounted supra, Bessy Wise recalled looking out of her front door and seeing appellant, whom she knew for about two years as the father of her daughter’s child born out of wedlock, walking on the railroad tracks next to her house in the company of one Anderson, appellant’s cousin who resided at 705 Ninth Avenue. Although Ms. Wise “didn’t know which of them was doing the shooting,” she heard a weapon fired three times and “they were doing the shooting.”

Officer Haswell repeated what he had testified to at the suppression, with the resultant admission of the weapon seized from appellant into evidence as Commonwealth’s Exhibit No. 1. The officer also testified that as of July 5, 1982, the arrest date, he believed appellant resided with his (appellant’s) mother at 728 Sixth Avenue rear, Beaver Falls, Pennsylvania. The officer was sure of the address because “[t]his is the [‘official’] address that he [appellant] gave the dispatcher at the time of booking.” A review of the record confirms this point.

James Mittica was the next witness to take the stand. He testified to appellant being a parolee under his supervision since the 1st of March, 1982, for a 2-7-year prison term for a 1978 burglary conviction. This fact was substantiated by the Clerk of Courts of Beaver County (Pam O’Rourke), whose record search produced the conviction just mentioned at case No. 545 of 1978.

To establish appellant’s lack of a license to carry a firearm, the prosecution produced the assistant chief of police for the City of Beaver Falls (Richard Pegg). He outlined his duties as the record keeper and issuer of a 12-month gun permit for residents of the City; to-wit:

They fill out an application prior to the purchase of a weapon and they enter their name, address, social security number, whether they have ever been arrested, serial number, make, description of the weapon, and then what I do is after I receive the application I run a records check on them through the FBI and the state police and local police departments and if they have ever been arrested before we don’t issue a gun permit to them.

A check of the police ledger, containing the names of those individuals to whom licenses were issued for one year prior to and after the 5th day of July, 1982, by the City of Beaver Falls police department, revealed that no gun permit had been issued to either a Phillip Leroy Bryant or Leroy Phillip Bryant during the period cited.

The assistant chief also noted:

The Third Class City Code only permits [the City of Beaver Falls police department] to issue gun permits. The Sheriff’s Department can’t issue gun permits in the City of Beaver Falls or no [sic] other agency.

Further, the witness remarked that he issued gun permits only to the residents of the City of Beaver Falls. Anyone residing outside the city limits would have to go to the Sheriff’s Department in Beaver County to secure such a license.

The only witness to testify on behalf of the defense was James Mittica, who admitted that from “the latter part of April [of 1982] until the arrest date for this offense Mr. Bryant was not accessible to [the agent].” Thereafter, counsel for the defense renewed his demurrer in the form of a motion for a directed verdict claiming that because he had proven through the parole agent that appellant had absconded, the Commonwealth could not “rely on that residence in the City of Beaver Falls ... [to support] the unlicensed firearms charge.” Further, defense counsel argued that the Commonwealth had not proven that appellant had not obtained a license from outside Beaver Falls. In other words, according to the defense, the Commonwealth was obligated to produce evidence that appellant was not licensed anywhere in Pennsylvania to carry a weapon.

The trial court disagreed with counsel for the defendant, charged the jury and imposed sentence following the denial of post-verdict motions. This appeal ensued.

Appellant raises three issues for our consideration. Since the first (concerning suppression of the evidence) and the third (dealing with the allegedly excessiveness of the sentence) were adequately covered by the trial court’s opinion, we adopt it as our own and for allocatur purposes. This leaves for disposition the second claim contesting the sufficiency of the evidence, i.e., the prosecution’s purported failure to establish the lack of licensure, barrel length and operability of the weapon seized from appellant’s person.

The licensure argument is framed by appellant as one in which he concedes the presentation of evidence of nonlicensure by Assistant Chief Pegg as to “the City of Beaver Falls within a year of the date of the alleged offense.” However, he goes on, because there was evidence that he left the Beaver Falls area, the prosecution was required to produce evidence that he “was not licensed by any other licensing authority in the Commonwealth.” Our review of the law on this subject lends support to appellant’s position.

To start with, it is clear that due process requires the prosecution in a criminal case to prove beyond a reasonable doubt every element necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). This precept was adopted by our Supreme Court in Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975) to reverse a conviction of a person charged with violating the precursor to 18 Pa.C.S.A. § 6106(a), 18 P.S. § 4628(e), in the face of a record containing not a single word relating to the accused’s lack of a license.

Prior to McNeil, as to section 4628(e) violations, the practice was to place the burden of persuasion on the defendant to come forward with evidence of licensure. Id. The prevailing rationale was that: 1) the prosecution should not be required to prove a negative; and 2) it would in many cases cast a great burden upon the prosecution if it were required to prove that no license had been issued to the defendant by an individual authorized to do so in any of the numerous localities in a given state. See Anno.: Burden of Proof as to Lack of License in Criminal Prosecution For Carrying or Possession of Weapon Without License, 69 A.L.R.3d 1054, § 6 (Discussing cases on this matter).

As to Point # 1, as already mentioned, the McNeil Court discontinued the requirement that the defendant be obligated to prove licensure since this amounted to an unconstitutional shifting of the burden of proving an essential element of the crime of carrying a firearm without a license to the defendant.

Similarly, the claim that the prosecution would be unduly burdened in having to prove the absence of licensure by securing verification of such a fact from each and every person and/or agency authorized to do so has been rendered impotent, at least in this Commonwealth. This point becomes evident from a review of the applicable statutes.

For example, the Information issued against appellant charged him with, among other things, violating section 6106(a), which reads: “No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as provided in this subchapter.” The Act of 1972, December 6, P.L. 1482, No. 334, § 1, effective June 6, 1973; 18 Pa.C.S.A. § 6106(a).

Under subsection (c) of section 6106, we learn that a county treasurer may issue a license, for a period not exceeding one year, to a hunter, fisherman and dog trainer. A copy is to be forwarded to the Commissioner of the Pennsylvania State Police. We receive further direction as to who may issue a license from section 6109, which is part of the “subchapter” referred to in section 6106(a) denominated SUBCHAPTER A — UNIFORM FIREARMS ACT. Section 6109 provides:

(a) Issue of license. — The chief or head of any police force or police department of a city, and, elsewhere, the sheriff of a county, may, upon the application of any person, issue a license to such person to carry a firearm in a vehicle or concealed on or about his person within this Commonwealth for not more than one year from date of issue, if it appears that the applicant has good reason to fear an injury to his person or property, or has any other proper reason for carrying a firearm, and that he is a suitable person to be so licensed.
(b) Form of license. — The license shall be in triplicate, in form to be prescribed by the Pennsylvania State Police, and shall bear the name, address, description, and signature of the licensee and the reason given for desiring a license. The original thereof shall be delivered to the licensee, the duplicate shall, within seven days, be sent by registered or certified mail to the Commissioner of the Pennsylvania State Police, and the triplicate shall be preserved for six years by the authority issuing said license.
(c) Fee.- — The fee for issuing such license shall be 50 cents, which fee shall be paid into the county treasury, except that if the applicant exhibits a resident hunter’s license issued to him for the current license year, the fee shall not be charged.
(d) Revocation. — Any such license to carry firearms may be revoked by the person issuing the same, at any time, upon written notice to the holder thereof.

The Act of 1972, December 6, P.L. 1482, No. 334, § 1, effective June 6, 1973; 18 Pa.C.S.A. § 6109.

We see that under the provisions of both sections, a copy of the issued license is forwarded to the Commissioner of the Pennsylvania State Police in Harrisburg, Pennsylvania, the central depository for the keeping of such records in the Commonwealth, see 73 Pa.Code §§ 33.11(b), 33.14(b), and is valid for no longer than one year. 18 Pa.C.S.A. §§ 6106(c), 6109(a).

Thus, the former complaints lodged by law enforcement officials that it was unduly burdensome and costly to obtain documentation from the respective officials in each of the 67 counties in the Commonwealth, as to whom licenses had been issued, has been remedied with the collection of such data in Harrisburg. Cf Commonwealth v. McFarland, 252 Pa.Super. 523, 532, 382 A.2d 465, 470 (1978) (“Under Patterson [v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) ], a state is free to recognize a mitigating or exculpatory circumstance without being required to prove the nonexistence of that circumstance if in the state’s judgment such proof would be too cumbersome, expensive and inaccurate. This rule is based on the traditional concept that it is ‘normally within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion. . . . ’ 432 U.S. at 201, 97 S.Ct. at 2322, 53 L.Ed.2d at 286-87 (citations omitted).” (Emphasis in original)).

Access to the content of the files can be had by law enforcement officials by contacting the State Police in Harrisburg and requesting a check of its records to ascertain whether an individual charged with a weapon offense has been licensed by an authority in the Commonwealth. And, the State Police certificate of nonlicensure is admissible in court as evidence sufficient to establish a violation of section 6106(a). See, e.g., Commonwealth v. Cunningham, 275 Pa.Super. 46, 418 A.2d 603 (1980); Commonwealth v. Hill, 251 Pa.Super. 492, 380 A.2d 887 (1977).

Based upon the ease with which the prosecution can verify the existence or absence of licensure as to a defendant, we see no justification for the assistant district attorney in the case at bar claiming that he need only prove appellant’s nonlicensure in the locality where the charge arose (herein Beaver Falls) since regulation of deadly weapons is provided to cities such as Beaver Falls in section 37403(26) of The Third Class City Code. The Act of June 23, 1931, P.L. 932, art. I, § 101; as amended August 24, 1953, P.L. 1337, § 1; 53 P.S. § 37403(26). This position, if embraced by the Court, would convert the verbiage in sections 6106 and 6109, concerning the forwarding of all license applications to the Commissioner of the State Police, to mere surplusage (and this we may not attribute to the Legislature, see 1 Pa.C.S.A. §§ 1921(a), 1922(1) & (2)).

Further, there would be no need for the Commonwealth to require the collating of such information if any locality in Pennsylvania could establish a violation of section 6106(a) by merely proving that the accused.failed to comply with a local ordinance in contradistinction to a state-wide requirement for verification. This, on its face, would appear to exceed the limits for regulation of firearms referred to in 18 Pa.C.S.A. § 6120.

It is nowhere evident that by the enactment of paragraph 26 of section 37403 of The Third Class City Code the Legislature intended “that within a particular territorial jurisdiction, the right to issue a license or permit to a person residing therein is confided exclusively to a designated licensing authority, and hence, a permit issued to a resident of such jurisdiction or indeed to any other person by a[n] ... official who lacks the requisite authority within the jurisdiction is not a defense,” as argued by the prosecution. See 94 C.J.S., Weapons, § 11 at 505 (Footnotes omitted). On the contrary, a reading of subsections (c) and (a) of sections 6106 and 6109, respectively, refutes this proposition since a local official, such as the chief or head police officer of a city, county treasurer or a sheriff, is authorized to issue a license not only to a local resident but to any citizen of the Commonwealth, and the validity of the permit is coterminous with the boundaries of the State itself. 94 C.J.S., Weapons, § 11 at 505. Ergo, to agree with the prosecution that the police department in Beaver Falls is the exclusive licensing agency when it comes to firearms for its residents would render ineffectual the language in section 6109(a) authorizing the already mentioned officials, sanctioned by the Legislature, to issue a license to “any person ... within this Commonwealth” without regard to residency. See State v. Titus, 10 Ohio Op.3d 300 (C.P. Montgomery Cty.1978) (Violation of local ordinance regarding carrying a concealed weapon does not override proof that defendant is in contravention of State statute on the subject) and compare with People v. Ramos, 17 Mich.App. 515, 170 N.W.2d 189 (1969) (Statute did not require prosecution to prove that defendant did not have a license to carry a weapon in any county in the State, only that he did not have a license in the county where he resided).

Moreover, and most importantly, to affirm appellant’s weapon conviction we would have to hold that proof of his nonlicensure by the police in Beaver Falls was the equivalent of not being licensed under section 6106(a), and, thus, ignore the specific reservation therein to the county treasurer to issue the same. This, we believe, would be an unwarranted shifting of the burden of proving licensure (an essential element of the offense charged) upon appellant, i.e., showing that he secured a license from an official outside the territorial confines of the offense.

Albeit general rules as to presumptions and burden of proof in criminal cases apply in prosecutions for carrying and possession of weapons, see 94 C.J.S., Weapons, § 13a, there are limits to which this sphere of guilt will extend. For example, it will be recalled that In re Winship’s standard of proof was looked to by our Supreme Court in McNeil, in requiring that absence of licensure, an essential element of the offense in section 6106(a), had to be established by the prosecution “beyond a reasonable doubt”. As a result thereof, the onus probandi was lifted from the shoulders of the defendant and placed on those of the prosecution as to this elemental aspect of the offense, and the ruling seemed to refocus attention on the admonition that:

“a State must prove every ingredient of an offense beyond a reasonable doubt and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense.”

Commonwealth v. McFarland, supra, 252 Pa.Super. at 531, 382 A.2d at 469, quoting Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 2330, 57 L.Ed.2d 281 (1977).

To hold that the prosecution had satisfied its burden, we believe, would have required the trier of fact to make an unwarranted inference of the presumed fact (nonlicensure under section 6106(a)) from the proven fact of appellant’s nonlicensure in the City of Beaver Falls. This presumption, being a procedural device adhered to in Pennsylvania,

not only permits an inference of the “presumed” fact, but also shifts to the opposing party the burden of producing evidence to disprove the presumed fact. Failure to meet this burden of production will normally result in binding instructions on the issue of the presumed fact’s existence in favor of the party invoking the presumption. But the notion of a directed verdict against a criminal defendant is contrary to accepted tenets of criminal justice. Placing the burden of production on a defendant under the threat of such a sanction would run afoul of the presumption of innocence, see Commonwealth v. Bonomo, 396 Pa. 222, 229-230, 151 A.2d 441, 445-446 (1959), as well as the defendant’s privilege of declining to testify. Thus, where the presumed fact comprises an element of the crime charged, the inference authorized by a presumption can never be compelled by the court. See generally Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974).

Commonwealth v. DiFrancesco, 458 Pa. 188, 193 n. 3, 329 A.2d 204, 207 n. 3 (1974). It requires noting that in DiFrancesco our Supreme Court, in accepting a statutory inference in a criminal case involving driving while under the influence of intoxicating liquor, held that when an inference is used in a criminal case such inference must meet the “beyond a reasonable doubt” standard of proof. The reasonable doubt standard requires that when the inferred fact is an essential element of the crime charged, that fact must logically flow from the given fact beyond a reasonable doubt. Commonwealth v. Slaybaugh, 468 Pa. 618, 624, 364 A.2d 687, 690 (1976). Thus, to sustain appellant’s conviction at bar would be the equivalent of reverting to the pre-McNeil practice of requiring the defendant to come forward with evidence of nonlicensure, or, absent such proof, cause him to suffer a conviction premised upon a presumption of guilt rather than proof beyond a reasonable doubt. See McCormick on Evidence, § 346 at 988 Point 2 (Presumptions) (3d ed. 1984).

In applying the reasonable doubt standard of proof to section 6106(a)’s licensure requirement, which of necessity would apply equally to section 6109, we are of the opinion that the inferred fact of nonlicensure does not flow logically beyond a reasonable doubt from the mere established fact of nonlicensure in the City of Beaver Falls. The reason is that it is not improbable that a resident of one of the 67 counties in Pennsylvania could secure a license where he resides, and, upon moving or traveling to a different area within the Commonwealth, be in compliance with our reading of section 6106 as to licensing, yet be in violation of a local ordinance (as exists in the City of Beaver Falls). Therefore, a reasonable doubt would arise that a conviction could be based upon an impermissible inference/presumption.

The prosecution could have avoided the result we reach on the weapon conviction simply by having presented a certificate from the Commissioner of the State Police documenting a search of his records and finding that appellant had not been issued a license by any authorized official within the Commonwealth. It failed to do so. Accordingly, we find that the conviction of appellant under section 6106 must be reversed, lest we affirm a conviction on less than “beyond a reasonable doubt” guidelines.

However, the same result does not obtain as to appellant’s conviction for former convict not to own, possess or control a firearm. 18 Pa.C.S.A. § 6105.

Testimony was presented at trial by the arresting officer that appellant was in possession of a .357 Magnum. Also, the. Clerk of Courts of Beaver County appeared and established appellant’s conviction of a crime of violence in this Commonwealth (i.e., burglary) in 1978. Lastly, although no testimony appears of record as to barrel length, the weapon in question was admitted into evidence, and, this, of necessity, rendered it subject to view by the jury. See Commonwealth v. Jennings, 285 Pa.Super. 295, 427 A.2d 231 (1981). Consequently, based on the aforesaid, we find, beyond a reasonable doubt, that sufficient evidence was presented to uphold appellant’s section 6105 conviction and judgment of sentence.

We see no need to remand for resentencing, however, because by imposing concurrent terms of equal duration for two offenses catalogued as misdemeanors of the first degree, the court below issued the maximum term possible for either offense. See 18 Pa.C.S.A. §§ 1104, 6119; see also Commonwealth v. Nelson, 337 Pa.Super. 292, 486 A.2d 1340 (1984).

As a result, we reverse the conviction and vacate the judgment of sentence as to carrying a firearm without a license, but we affirm the sentence entered for a convict not to possess a firearm.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

While I concur in the result reached by the majority today, I question the efficacy of the statutory scheme. Under current law, a person need only possess a license to carry a gun. Possess that license he must; produce it— even under threat of prosecution — he need not. The burden in a prosecution under § 6106 falls squarely on the Commonwealth to prove, beyond a reasonable doubt, non-licensure. Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975).

As the majority suggests, proof of nonlicensure may entail recourse to the central depository of the Pennsylvania State Police, an arguably unwieldy procedure.

An alternative may be to amend 18 Pa.C.S. § 6106 to require carrying and exhibiting the license on demand. Following the rule for drivers’ licenses, the statute might prescribe:

1) At all times when engaged in conduct defined by § 6106(a), every licensee shall possess a firearms license issued to that licensee. Upon demand by a police officer, the licensee shall exhibit the license. To provide proof of identity, the licensee may be required to write the licensee’s name while in the presence of the officer.
2) No person shall be convicted for violation of this section if the person, within five days, produces at the office of the issuing authority or the arresting officer, a firearms license valid in this Commonwealth at the time of the arrest.

Cf 75 Pa.C.S. § 1511.

      . Paragraph 26 of section 37403 provides:
      Regulate guns, et cetera. — To regulate, prohibit, and prevent the discharge of guns, rockets, powder, or any other dangerous instrument or combustible material within the city, and to prevent the carrying of concealed deadly weapons.

      . Section 6120 provides, in relevant part:
      (a) General rule. — No county, municipality or township may in any manner regulate the lawful ownership, possession or transportation of firearms when carried or transported for purposes not prohibited by the laws of this commonwealth.
      The Act of October 18, 1974, P.L. 768, No. 260, § 2, imd. effective; 18 Pa.C.S.A. § 6120(a).
      To discount section 6120, when read in conjunction with sections 6106 and 6109, would render a result in which one could be technically in compliance with the requirements of section 6106, by having obtained a license in, for example, Elk County, yet still be, at the same time, in violation of a local ordinance — as exists in Beaver Falls by not re-registering the weapon with the local authorities. This, we believe, would be the equivalent of placing local ordinances over Legislative enactments, a procedure which is in direct conflict with section 6120 and would render subservient the rule of the majority to that of the minority. Cf. Turner v. May Corp., 285 Pa.Super. 241, 244 n. 1, 427 A.2d 203, 204 n. 1 (1981) ("... a local rule of court is subordinate to laws promulgated by our Legislature.”).


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    491 A.2d 189
    COMMONWEALTH of Pennsylvania, Appellant, v. Gary BROWN. COMMONWEALTH of Pennsylvania, Appellant, v. Lewis A. WISE.
    Superior Court of Pennsylvania.
    Submitted June 13, 1984.
    Filed March 29, 1985.
    Petition for Allowance of Appeal Denied Aug. 26, 1985.

      Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee (at 3052).
    Timothy A. Crawford, Philadelphia, for appellee (at 3053).
    Before CIRILLO, BECK and CERCONE, JJ.
   CERCONE, Judge:

Appellees Lewis A. Wise and Gary Brown were charged as participating in the robberies of a number of bars in the Philadelphia area which occurred from November 1981 through February 1982. Appellee Wise was identified by a witness as one of the felons in the Castle Bar. During interrogation, he inculpated himself as' a participant in several other bar robberies in which the perpetrators all wore ski masks. Appellee Brown was identified as having robbed the 801 Bar and in the course of interrogation he admitted his role in various other bar robberies, in which witnesses had reported the robbers as having worn head coverings, making their identification similarly impossible.

The evidence elicited at the preliminary hearing consisted of various bar owners and barmaids who could testify as to the circumstances of the robberies, i.e., dates, number of perpetrators, amount of money taken, but who, with the exception of the 801 and Castle Bar incidents, could provide no identification of the robbers. (Some were able to say they were black men of a certain build). The identifications were provided by each detective’s testimony as to the statements given by the appellees during interrogation.

Following a suppression hearing, the court granted appellees’ respective motions as to the inculpatory statements since appellees had not been rewarned of their Miranda rights prior to interrogation on the numerous unsolved bar robberies in the police files. This is the Commonwealth’s appeal from .that suppression order. The Commonwealth is substantially handicapped in its prosecution of appellees by the suppression of the statements in that they provide the only link of appellees to the robberies. Thus, this case is properly before us as an appealable order. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985) (Commonwealth was found to have absolute right to appeal a suppression order on its good faith certification that its prosecution is substantially handicapped.)

When we review an order suppressing evidence, we are bound by the lower court’s findings of fact, if those findings are supported by the record. Commonwealth v. Williams, 287 Pa.Superior Ct. 19, 429 A.2d 698 (1981). No one is questioning the court’s findings of fact in the instant cases. The court found that both defendants, in two separate interrogation sessions, were initially administered their Miranda warnings as to the robbery in which each was implicated by a positive identification via a photo array by witnesses. Each defendant waived his rights and agreed to talk. While Brown admitted his role in the 801 Bar robbery, Wise initially denied that he robbed the Castle Bar. Wise subsequently admitted his role in the Castle Bar robbery after admitting robbing seven other bars. However, the court further found, and this is supported by the testimony of Detective Santiago, as to Brown, and Detective Carroll, as to Wise, that the interrogating detectives then proceeded to question appellees about their possible participation in numerous unsolved bar robberies. Each defendant did admit such participation in seven or eight additional robberies.

The suppression court concluded, under the authority of Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), Commonwealth v. Dixon, 475 Pa. 17, 379 A.2d 553 (1977), and Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974) that the procedure violated appellees’ Fifth amendment privilege against self-incrimination.

The Pennsylvania courts, in interpreting Miranda, have held that, in order for an accused to exercise his Miranda rights intelligently, he must have knowledge of the particular transaction under investigation. This does not mean that the accused need know the technicalities of the offense or every conceivable consequence which might flow from a Miranda waiver, but he does have a right to know of the general nature of the incident giving rise to the investigation.

Thus, the question for our determination is whether by informing each of the appellees at the time of the Miranda warning that he was a suspect in a particular bar robbery, did the officers adequately apprise appellees of the general nature of the incidents which gave rise to the investigation of the numerous other robberies. Were they so adequately apprised that the waiver with regard to the known robbery sufficed to provide for the voluntariness of the waiver as to a laundry list of unsolved robberies with fact patterns very similar to the first. For the reasons which follow, we find that the circumstances of these interrogations did not mandate re-warning of Miranda rights, and we therefore, reverse.

It is evident that there is a wide range of circumstances which may give rise to defendant’s claim that his Miranda waiver was involuntary because he was not made aware of the nature of the crimes which are the subject of his interrogation. The courts have ruled that in the face of such a claim, the totality of the circumstances must be examined to determine whether re-warnings are necessary. The indicia to be considered include

(1) the time lapse between the last Miranda warnings and the accused’s statement; (2) interruptions in the continuity of the interrogation; (3) whether there was a change of location between the place where the last Miranda warnings were given and the place where the accused’s statement was made; (4) whether the same officer who gave the warnings also conducted the interrogation resulting in the accused’s statement; and (5) whether the statement elicited during the complained of interrogation differed significantly from other statements which had been preceded by Miranda warnings. See Commonwealth v. Riggins, 451 Pa. 519, 304 A.2d 473 (1973); Commonwealth v. Ferguson, 444 Pa. 478, 282 A.2d 378 (1971).

It is not difficult to comprehend the need to re-warn a suspect of his opportunity to assert his or her constitutional rights in circumstances in which he or she is brought into custody on relatively minor charges, and then is questioned on much more serious crimes without additional Miranda warnings. That was the situation in Commonwealth v. Dixon, supra, in which appellant had earlier been convicted of malicious mischief and was delinquent in her restitution payments. Police informed her of this infraction and then asked her to accompany them to the police station. Once warned of her Miranda rights as to that offense, police proceeded to interrogate her on the investigation of the death of her two-year-old son. As the Supreme Court stated in reversing her conviction,

“It is a far different thing to forego a lawyer where a traffic offense is involved than to waive counsel where first degree murder is at stake.” Commonwealth v. Collins, 436 Pa. 114, 121, 259 A.2d 160, 163 (1969) (plurality opinion) in Dixon, supra, 475 Pa. at 22, 379 A.2d at 556.

In Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), it was not clear that the questioning would cover several murders before the defendant was given the waiver form to sign. Both a violation of the Uniform Firearms Act and recklessly endangering another person were listed on the waiver form. The court concluded that even if the defendant had not been informed of the homicides as part of the subject of the questioning, the form itself could not have created an ambiguity in the defendant’s mind. This was so in light of the fact that the defendants had handed the weapon which was the object of the minor charges to a witness; this same weapon had been used in one of the homicides under investigation. Moreover, all four homicides had occurred over the five days immediately preceding the investigation. Thus the court concluded that the defendant in question was necessarily aware of what incidents he was being questioned and it would be “tantamount to treating as fact that which is patently hypothesis and fantasy” Id., 502 Pa. at 487, 467 A.2d at 294, to hold otherwise.

In the instant case, virtually no time elapsed between the waiver and the interrogation on the laundry list of unsolved robberies all of which were similar in nature as to crime and methods of commissions. In other words, the gravity and type of the unsolved offenses were almost identical to that of the robbery in which each defendant was clearly a suspect.

As to appellee Brown, the length of the entire interview was two hours and twenty-five minutes; as to Wise, it was one hour and forty minutes. There was virtually no interruption in the continuity of each interrogation except for the minute or so which it took Detective Santiago to retrieve the list of unsolved robberies from the police file, and for a similar interruption to obtain food for defendant Brown. The same detectives conducted all challenged proceedings for the respective defendants in the same location. The fifth consideration is inapplicable here in which these cases do not involve two separate interrogations for each defendant, but rather, an interrogation for each which was expanded by the detectives to include additional similar crimes. Thus, the Ferguson criteria weigh in favor of the propriety of the interrogations.

A case which is most akin to the instant cases is Commonwealth v. Hadden, 265 Pa.Superior Ct. 112, 401 A.2d 826 (1979). The defendant had been arraigned for one burglary during which he had been advised of his Miranda rights and signed a printed form indicating that he understood them. Immediately after arraignment when police began to question him about unsolved burglaries, he was asked if he had been advised of his rights and remembered them. The defendant said yes. Then later, after the detective determined that the defendant had completed the eleventh grade and could read English, the detective, before taking the defendant’s written statement, had him read a written statement of his rights. This court held, under these circumstances, that the defendant had been informed of his rights in such a manner as to assure that he understood them.

The court in Hadden relied heavily on the fact that appellant’s expression of understanding of his Miranda rights closely preceded his interrogation on the additional burglaries, even though that expression pertained to the first burglary. Essential to the analysis was whether the person in custody was informed of his rights in such a manner as to assure that he understood them.

Looking at the instant cases, it is clear that both defendants expressed their understanding of their Miranda rights just minutes before the challenged parts of the particular interrogations. We cannot find that the embarking into questions pertaining to additional crimes of like gravity in the same interrogation automatically vitiates the expressed understanding of defendants’ rights. Under the circumstances of this case it was not necessary to rewarn appellees of their Miranda rights. Thus, we must reverse.

The suppression court ruled that each defendant should have been re-warned since:

each offense, while similar in character, involved a separate criminal transaction occurring on different dates at different locations. The decision to forego a lawyer and give a statement as to one crime in no way suggests a knowing relinquishment of these rights as to any other criminal transaction. The potential consequences attending one robbery indictment is (sic) far different from those attending six or eight or even twenty-four counts of robbery, whether similar or not.

We would agree with the court below, under relevant case law, if this were a case involving crimes of varying seriousness, in which the defendant’s waiver to a minor offense had been asserted as sufficient to cover a more serious offense. However, in this case, the initial warnings stated that the subject matter to be discussed was armed robbery of a particular bar. This fact alone was sufficient to apprise the defendants of the seriousness of their predicament, thus allowing them to determine knowingly the necessity for counsel and the need to remain silent. Under the circumstances of these cases, then, appellees were made aware of the general nature of the occurrences which gave rise to the investigations. Thus, we find that they waived their rights to remain silent and to acquire counsel on all of the armed robberies mentioned in their statement.

Order reversed. Case remanded for further proceedings. Jurisdiction relinquished.

      . The cases were consolidated for appeal as they involved the same issue.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974) collects cases which stand for the general principle that “an intelligent and understanding waiver of the right to counsel is impossible where the defendant has not been informed of the crime which is being investigated.” The Richman court applied this principle to waivers of line-up counsel in a scenario in which the appellant was subjected to a line-up procedure prior to being preliminarily arraigned. The court found that appellant’s waiver of the right to counsel at time of line-up was involuntary.

      . The time span for all of the robberies was less than three months; the actors carried weapons and made everyone lie on the floor of the bar; in almost all cases, actors wore head coverings.


author: LIPEZ, Judge:

text:
    491 A.2d 193
    COMMONWEALTH of Pennsylvania v. Ronald A. HENRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 2, 1984.
    Filed March 29, 1985.

      James C. Crumlish, III, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and LIPEZ, JJ.
   LIPEZ, Judge:

In a jury trial, defendant was convicted of simple and aggravated assault, and possession of an instrument of crime. After denial of post-verdict motions, defendant was sentenced to five to ten years imprisonment for aggravated assault, with a consecutive term of one to two years for possession of an instrument of crime. In this appeal from the judgment of sentence, defendant contends: (1) the court below abused its discretion in ruling that the chief Commonwealth witness was a competent witness; (2) trial counsel was ineffective in failing to request a specific charge that the effect of evidence of insanity of the chief Commonwealth witness on that witness’s credibility was properly a matter for the jury; (3) trial counsel was ineffective for failing to object to defendant’s appearance at his jury trial in prison garb; and (4) the court below erred in refusing to discharge defendant under Rule of Criminal Procedure 1100. Judge Guarino’s opinion adequately disposes of the first and fourth issues. For the reasons discussed below, we find the second issue without merit, but we also find that the allegations in defendant’s third issue would permit a finding of trial counsel ineffectiveness. Therefore we vacate the judgment of sentence, and remand for a hearing on the allegation that trial counsel was ineffective for failing to object to defendant’s appearance in prison garb at his jury trial.

There can be no finding of ineffectiveness of counsel unless the defendant demonstrates that the course not chosen by counsel would have provided a substantially greater probability of success. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977), rearg. denied. Clearly defendant has failed to meet this burden with respect to his claim that trial counsel was ineffective for failing to insist on a specific charge that the effect of evidence of insanity of the Commonwealth’s witness’s credibility was for the jury. Judge Guarino’s charge plainly conveyed to the jury that all questions of credibility of witnesses were for the jury to resolve. Defendant has cited no authority whatsoever for any requirement that alleged evidence of “insanity” be highlighted in the charge on credibility. Hence defendant has not shown that trial counsel has foregone a request which had a substantially greater probability of success, and this claim of ineffectiveness must be denied. Commonwealth v. Hubbard, supra.

Defendant’s other claim of ineffectiveness, trial counsel’s failure to object to defendant’s appearance before the jury in prison garb, is much more serious.

A defendant in prison garb gives the appearance of one whom the state regards as deserving to be so attired. It brands him as convicted in the state’s eyes. It insinuates that the defendant has been arrested not only on the charge being tried but also on other charges for which he is being incarcerated.

Commonwealth v. Keeler, 216 Pa.Super.Ct. 193, 195-96, 264 A.2d 407, 409 (1970). We cannot simply reverse, because there has not been a hearing in the court below on ineffectiveness. It is possible for an appearance before a jury in prison garb to constitute harmless error under some circumstances. Commonwealth v. Kellum, 339 Pa.Super.Ct. 513, 521, 489 A.2d 758, 762 (1985). Even an appearance by the defendant shackled in leg irons before the jury does not necessarily constitute a sufficient showing of prejudice to require a new trial. Commonwealth v. Chew, 338 Pa.Super.Ct. 472, 482, 487 A.2d 1379, 1384 (1985). Thus it is possible that defendant would be unable to sustain his burden of demonstrating that counsel’s action had no reasonable basis, and the alternative foregone by counsel offered a substantially greater probability of success. Commonwealth v. Hubbard, supra.

Defendant’s allegation concerning the prison garb does, however, meet the requirement to “set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective.” Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). Therefore defendant is entitled to remand for a hearing to determine whether he can prove this claim of ineffectiveness. If it is determined on remand that counsel was ineffective, a new trial shall be awarded, but if counsel was effective, the judgment of sentence shall be reinstated. Either party, if aggrieved, may appeal the hearing court’s determination. Commonwealth v. Moore, 466 Pa. 510, 517-18, 353 A.2d 808, 811-12 (1976).

Judgment of sentence vacated, and case remanded with instructions. Jurisdiction relinquished.

      . At post-trial motions, defendant was represented by trial counsel, who raised the same substantive issues which are raised in terms of trial counsel’s ineffectiveness in issues (2) and (3) above. Judge Guarino properly found these issues waived because trial counsel failed to raise them at trial, raising them for the first time in post-verdict motions. See Pa.R.Crim.P. 1123(a). Defendant is represented by new counsel in this appeal, which is the first opportunity to raise issues (2) and (3) in terms of trial counsel’s ineffectiveness; hence these issues are now properly before us. As an alternative to the ineffectiveness claim with respect to issue (3), new counsel also claims that the prison garb issue could not be waived by mere failure to object, absent a knowing and intelligent express waiver by defendant himself. Clearly this alternative claim of non-waiver is incorrect. Cf. Commonwealth v. Chew, 338 Pa.Super.Ct. 472, 482, 487 A.2d 1379, 1384 (1985) (failure to make timely objection to appearing shackled in leg irons before jury). Defendant has, however, achieved the same result of defeating the waiver by raising the issue in terms of trial counsel’s ineffectiveness. It is because of defendant’s ability to raise the issue now via the ineffectiveness route that making the issue waivable by failure to object at trial does not violate due process. See Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968).

      . In addition to the brief filed by defendant’s counsel in this appeal, defendant has filed some supplemental documents pro se, which we shall not consider because defendant is already represented by counsel. Commonwealth v. Moore, 321 Pa.Super.Ct. 1, 9-10 n. 4, 467 A.2d 862, 866-67 n. 4 (1983); Commonwealth v. Carey, 313 Pa.Super.Ct. 20, 34, 459 A.2d 389, 396 (1983).


text:
    491 A.2d 196
    COMMONWEALTH of Pennsylvania v. Anthony GALLAGHER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 1, 1984.
    Filed March 29, 1985.
    Petition for Allowance of Appeal Denied Sept. 30, 1985.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, MONTEMURO and LIPEZ, JJ.
   LIPEZ, Judge:

In a non-jury trial, defendant was convicted of involuntary deviate sexual intercourse, attempted rape, and possession of an instrument of crime. With new counsel, defendant filed post-verdict motions which were denied. Sentence was imposed, and with a second new counsel, defendant took this appeal alleging: (1) that defendant was erroneously convicted and sentenced for two inchoate offenses for conduct designed to commit or culminate in the commission of the same crime; (2) that trial counsel was ineffective when he told the trial judge that defendant made no statement upon arrest (thus sabotaging defendant’s claim of innocent cooperation with the police) and that post-verdict counsel was ineffective in failing to raise this claim below; and (3) that trial counsel was ineffective for failing to object to the introduction of prior crimes evidence. We affirm.

Defendant first claims that he was erroneously convicted and sentenced for two inchoate offenses — attempted rape and possessing the instrument of a crime — for conduct designed to commit or culminate in the commission of the same crime. Though defendant did not raise this issue in the court below, “a question as to the legality of sentence is never waived despite the fact that it was not raised in the court below.” Commonwealth v. Von Aczel, 295 Pa.Super 242, 246, 441 A.2d 750, 752 (1981).

A defendant may not be convicted of more than one inchoate offense designed to commit or to culminate in the commission of the same crime. 18 Pa.C.S. § 906. In Commonwealth v. Crocker, 256 Pa.Super. 63, 389 A.2d 601 (1978), the court held that defendant could not be convicted and sentenced for both criminal attempt and possessing an instrument of crime because defendant’s conduct was designed to culminate in the commission of only one crime. In Commonwealth v. Hassine, 340 Pa.Super. 318, 368, 490 A.2d 438, 464 (1985), the court stated that the purpose of Section 906 was “to eliminate the conviction for more than one offense in the preparation to commit the objective, that is, where the offenses were designed to culminate in the commission of only one crime. ” (emphasis in original). See also Commonwealth v. Zappacosta, 265 Pa.Super. 71, 401 A.2d 805 (1979).

The evidence in this case indicates that defendant possessed the knife (the instrument of crime) with the intent of committing the crime of rape, and later with the intent of committing the crime of involuntary deviate sexual intercourse. Thus, defendant possessed the knife with the intent to commit two distinct crimes. Therefore, to be convicted and sentenced for attempted rape and possessing the instruments of crime in this case does not violate the “same crime” rule of 18 Pa.C.S. § 906.

Defendant next argues that trial counsel was ineffective because he told the judge as factfinder that defendant made no statement upon being arrested, and that this sabotaged his defense of innocent cooperation with the police. Defendant also claims that post-verdict counsel was ineffective in failing to challenge trial counsel’s ineffectiveness.

The claim that trial counsel was ineffective was not raised in post-verdict motions, thus is waived. Common wealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). The claim that post-verdict counsel was ineffective in failing to challenge trial counsel’s ineffectiveness is properly raised on appeal. Id. The question before us, then, is: was post-verdict counsel ineffective in failing to challenge trial counsel’s ineffectiveness?

[5,61 Defendant has the burden of proving ineffectiveness of counsel. Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980). Counsel’s assistance is deemed effective if it had “some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex. rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349 (1967).

In attempting to bolster his client’s claim that defendant did not inform police about an alleged incident (in which he claims that the victim got angry when defendant refused her sexual advances) because he was not charged with doing anything wrong at the time, trial counsel mentioned the fact that defendant made no statement upon being arrested, and then said:

I wanted the court to know that. The Commonwealth is making a big thing of what he didn’t say. He hadn’t been charged with anything. (N.T. 241).

It appears that trial counsel made a mistake. In the process of trying to emphasize that defendant did not say anything to police because he had not been charged with anything, counsel noted that defendant exercised his right to remain silent upon being arrested. Counsel is not held to be ineffective in the absence of some showing that defendant was prejudiced by counsel’s behavior. Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984). “There exists a strong disposition on the part of lay jurors to view the exercise of the Fifth Amendment privilege as an admission of guilt.” Commonwealth v. Turner, 499 Pa. 579, 582, 454 A.2d 537 (1982). But in this case we are dealing with a bench trial, with an experienced judge as the factfinder; a judge well aware of the importance of the Fifth Amendment privilege; a judge who is presumed not to view the exercise of a fundamental right as an admission of guilt. This is not a case, like those cited by the defendant, where a judge has heard inadmissible evidence of prior crimes, and it was determined that even a judge could not ignore such prejudicial evidence.

In Commonwealth v. Conti, 236 Pa.Super. 488, 345 A.2d 238 (1975) the court looked at two factors to determine if a judge could maintain his impartiality after hearing incompetent evidence: (1) the “inherently prejudicial quality” of the evidence involved; and (2) the importance of the evidence to the particular case. The evidence in this case is defendant’s silence upon being arrested. The fact that defendant exercised his constitutional right to remain silent upon arrest would not come as a great surprise to a judge. A judge’s knowledge of this is not highly prejudicial to defendant. Moreover, had trial counsel not announced this fact, it is very likely that the judge would have come to the same conclusion. Judge Klein stated that he found the victim’s testimony “particularly convincing,” and in general believed the evidence presented by the Commonwealth. Thus, the fact that the judge knew that defendant exercised his right to remain silent upon being arrested was of no great importance to this case. Defendant, then, was not prejudiced by counsel’s actions in telling the judge as factfinder that defendant made no statement upon his arrest; and post-verdict counsel was not ineffective for failing to raise this claim of ineffectiveness against trial counsel.

Defendant’s final claim is that trial counsel was ineffective for failing to object to the introduction of evidence of defendant’s sole prior conviction for impersonating a public servant and theft of services. (This claim of ineffectiveness was raised by post-verdict counsel). The criteria for admitting evidence of prior convictions to impeach a defendant-witness were established in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978). The prior conviction must be for a crime involving false or dishonest statement — crimen falsi. Once that is established, the court considers a number of factors in determining whether the probative value of the evidence outweighs the prejudice to the defendant: the degree to which the prior crime reflects on defendant’s veracity; the age, nature, and number of prior offenses; the existence of alternative methods of attacking the witness’ credibility; the strength of the prosecution’s case; the degree to which the prior crime is similar to the present crime charged. In his opinion, Judge Klein utilized several of the Bighum — Roots criteria in determining that the prior conviction was admissible for impeachment purposes and that counsel was not ineffective for failing to raise a meritless claim.

While it is true that Commonwealth v. Williams, 273 Pa.Super. 389, 417 A.2d 704 (1980) holds that evidence of a series of prior convictions for the same crime for which an accused is charged is too prejudicial to be used for impeachment purposes, this is not what happened in this case. Here, defendant was charged with possessing an instrument of crime and sexual offenses. His prior conviction which was admitted for impeachment purposes was for impersonating a public servant and theft of services. It is true that defendant in this case impersonated another’s voice to acquire access to his victim, but this is not evidence that “would have tended to smear the character of the [defendant] to such an extent that an unbiased and impartial determination of guilt or innocence would have been rendered improbable if not impossible.” Id., 273 Pa.Superior Ct. at 391, 417 A.2d at 706. Moreover, in Commonwealth v. Kearse, 326 Pa.Super. 1, 473 A.2d 577 (1984), the court upheld the admissibility of a prior conviction for robbery to impeach a defendant charged with robbery. The court distinguished the case from Williams by pointing out that unlike Williams the evidence used to impeach defendant Kearse consisted of only one prior conviction, which was not nearly as remote in time as those in Williams; and that while the prosecution in Williams had three eyewitnesses to the crime, here there was only one eyewitness.

In our case, there was evidence of only one prior conviction admitted, and it was not for the same crime for which defendant was accused; the prior conviction was not even as remote in time as the one in Kearse; and the prosecution had only one eyewitness to the crime. Thus, since the prior conviction was crimen falsi and the case is clearly distinguishable from Williams, we find no reason to disturb Judge Klein’s rulings that based on the Bighum— Roots criteria, the probative value of the evidence outweighed the prejudice to the defendant, and trial counsel was not ineffective for failing to object to the introduction of prior crimes evidence.

Judgment of sentence affirmed.

      . Defendant’s claim that counsel’s remark that defendant made no statement upon arrest sabotaged his defense of innocent cooperation with the police is also without merit. Trial counsel did admit that part of his strategy was to demonstrate that defendant cooperated with the police (N.T. 5/27/82, 20). Evidence was introduced suggesting that prior to his arrest, defendant had cooperated with police. Upon arrest, defendant exercised his constitutional right to remain silent. This does not suggest that he was uncooperative; nor does it diminish the effect of the evidence of his prior cooperation. Being arrested is unquestionably different from merely being questioned. When you are actually arrested and charged with committing a crime it is natural to be more cautious and careful about what you say. An experienced judge acting as factfinder understands that the exercise of a constitutional right does not indicate lack of cooperation, rather, it indicates a desire to be cautious.


text:
    491 A.2d 200
    COMMONWEALTH of Pennsylvania v. Allan B. COLEMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 2, 1984.
    Filed March 29, 1985.

      Michael G. Defino, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, DEL SOLE and LIPEZ, JJ.
   LIPEZ, Judge:

In this appeal from a judgment of sentence for murder in the first degree, theft by unlawful taking, and possession of instruments of crime, defendant contends: (1) the pre-trial delay which occurred while the Commonwealth pursued an interlocutory appeal violated defendant’s rights under the speedy trial clause of the sixth and fourteenth amendments of the United States Constitution and Pennsylvania Rule of Criminal Procedure 1100; and (2) the evidence was insufficient to support the verdicts. The opinion of Judge Caesar, who heard the case below without a jury, thoroughly disposes of the issue of sufficiency of the evidence, and there is no need for us to comment further on it.

Defendant’s claim under Rule 1100 is based on the pre-trial delay which occurred when the Commonwealth took an interlocutory appeal from the trial court’s determination that 42 Pa.C.S. § 5104(c) was unconstitutional in that it conferred on the Commonwealth an absolute right to jury trial, thus encroaching on the Pennsylvania Supreme Court’s exclusive procedural rulemaking power, Pa. Const., art. V, § 10(c), which the Court had exercised by placing the question of whether the defendant could waive a jury trial within the discretion of the trial judge, under Pennsylvania Rule of Criminal Procedure 1101. It is undisputed that if Rule 1100 was tolled for the period of the interlocutory appeal, then the commencement of defendant’s trial was timely, but if Rule 1100 was not tolled for that period, defendant’s trial commenced too late and he should be discharged under Rule 1100.

The court below held, and we agree, that Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981), which held that an interlocutory appeal by the Commonwealth tolls Rule 1100, compels the conclusion that defendant was timely tried. Defendant attempts to distinguish Jones by pointing to the statement in Justice Kaufman’s majority opinion that in Jones “[tjhere is no evidence that the appellate process was abused by the Commonwealth for the purpose of delay.” 495 Pa. at 497, 434 A.2d at 1200.

Defendant contends that in his case there is evidence of abuse of the appellate process by the Commonwealth. He bases this contention primarily on a number of observations in part IV of Justice Roberts’ opinion in support of affirmance in the Commonwealth’s interlocutory appeal. Commonwealth v. Wharton and Coleman, 495 Pa. 581, 594-601, 435 A.2d 158, 164-68 (1981). It is true, as defendant claims, that part IV of Justice Roberts’ opinion is critical of the Commonwealth for insisting on the absolute right to a jury trial in this case. It is also true, as shown by the prosecutor’s statements which defendant quotes from the record, that the Commonwealth did this as a matter of trial tactics, because Judge Della Porta, who had conducted the suppression hearing, had made some remarks concerning the validity of the Commonwealth’s evidence at the suppression hearing. Justice Roberts believed it was undesirable to allow the Commonwealth to do this, and he raised this as one of a number of policy considerations to support his conclusion that the statute should be declared unconstitutional.

We do not believe that the combination of Justice Roberts’ discussion in part IV of his opinion and the admission of the Commonwealth’s attorney that the Commonwealth was insisting on a jury trial for tactical reasons demonstrates in any way that the Commonwealth abused the appellate process for purposes of delay in this case. The statute on its face gave the Commonwealth the right to do precisely what it did, and no appellate court had held the statute unconstitutional when the Commonwealth took its appeal. The fact that the Supreme Court’s vote was evenly divided in the appeal, Commonwealth v. Wharton and Coleman, supra, shows beyond doubt that the Commonwealth was appealing a non-frivolous issue. Moreover, the remarks in part IV of Justice Roberts’ opinion in support of affirmance were only joined by one other justice. The remarks are plainly not binding, and even if they were, the criticism in part IV of the undesirability of permitting the Commonwealth to use certain tactics does not even purport to show that by taking the appeal the Commonwealth was attempting to delay the case, but only to try to have an appellate court uphold their statutory right to use those tactics.

Defendant has not shown on this record that the Commonwealth instituted its interlocutory appeal for the purpose of delay, or for any purpose other than the proper one of attempting to obtain the right which the statute conferred on the Commonwealth as a litigant. If the Commonwealth could not take a pre-trial appeal under these circumstances, the issue would have been moot after the trial, and there would be no means by which the important constitutional questions raised could have been litigated before the Supreme Court. The fact that the Commonwealth was ultimately unsuccessful in litigating the question certainly does not demonstrate that the appeal was taken for delay or any other improper purpose. Accordingly, defendant’s Rule 1100 claim must be rejected. Jones v. Commonwealth, supra.

Similarly, we must reject defendant’s constitutional speedy trial claim.

In determining whether a defendant’s constitutional speedy trial right has been violated, it must first be determined whether the delay itself is sufficient to trigger further inquiry. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981). If the delay is sufficient to trigger further inquiry, the reviewing court must balance the length of the delay with the reason for the delay, the defendant’s timely assertion of his right to a speedy trial, and any resulting prejudice to the interests protected by the right to a speedy trial. Barker v. Wingo, supra; Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980).

Commonwealth v. Glover, 502 Pa. 524, 528, 458 A.2d 935, 937 (1983).

While defendant’s two-year incarceration prior to trial is sufficient to trigger further inquiry, Commonwealth v. Glover, supra, 502 Pa. at 528, n. 4, 458 A.2d at 937, n. 4, and defendant has timely asserted his right to a speedy trial, evaluation of the other factors shows that rejection of defendant’s speedy trial claim is compelled by Jones v. Commonwealth, supra. In that case, in which there was also a sufficient delay to trigger further inquiry, as well as a timely assertion of the right to speedy trial, the Supreme Court held that the defendant’s dubious claim of prejudice to his defense could not outweigh the Commonwealth’s entitlement “to seek appellate review of what it considered to be the improper suppression of important evidence in a first degree murder trial.” 495 Pa. at 500-01, 434 A.2d at 1202. If the Commonwealth’s right to seek appellate review outweighed the dubious claim of prejudice in Jones v. Commonwealth, supra, then a fortiori the Commonwealth’s right to seek appellate review of important constitutional questions was sufficient reason for the delay in this case, since defendant here has not even alleged that a speedy trial was necessary to limit the possibility of impairment of his defense, which is “the most important interest protected by the Sixth Amendment.” Commonwealth v. Glover, supra, 500 Pa. at 529, 458 A.2d at 938.

Judgment of sentence affirmed.


author: ROWLEY, Judge:

text:
    491 A.2d 203
    Claire MATZA, Administratrix of the Estate of Carmen Matza, Deceased, Appellee, v. ALLSTATE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 10, 1984.
    Filed April 4, 1985.

      John C. McNamara, Philadelphia, for appellant.
    Dennis Veneziale, Philadelphia, for appellee.
    Before ROWLEY, McEWEN and HOFFMAN, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

Allstate Insurance Company (Allstate) appeals from the trial court’s order granting appellee’s motion for summary judgment and awarding her work loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act (No-Fault Act), 40 P.S. §§ 1009.101-1009.701. We affirm.

Carmen Matza died in an automobile accident on July 21, 1981. The automobile, driven by decedent, was insured under a policy issued by Allstate. At the time of his death, Mr. Matza had been retired for three years. He and his wife, Claire Matza, appellee, had been receiving $663.00 per month in social security benefits, and $449.49 per month from decedent’s employer’s non-contributory pension plan. Both parties agree that Mr. Matza’s death resulted in a reduction in monthly benefits totaling $489.37. It was further agreed that decedent’s actuarial life expectancy was at least 31 months.

Appellee filed an action for declaratory judgment and in assumpsit, as administratrix of her husband’s estate and in her own right as decedent’s widow, seeking to recover work loss benefits under the No-Fault Act. The trial court granted appellee’s subsequent motion for summary judgment, holding that the diminution of pension and social security payments to the estate of a retired decedent is properly compensable under the No-Fault Act as work loss. We agree.

It is now well-settled that survivors of an individual who is fatally injured in an automobile accident are entitled to work loss benefits under the No-Fault Act. Allstate Insurance Company v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). In addition, the victim’s estate is entitled to recover work loss benefits, and lack of a work history does not bar such recovery. Freeze v. Donegal Mutual Insurance Company, 504 Pa. 218, 470 A.2d 958 (1983) (estate of deceased eleven-year old minor entitled to recover work loss, even though decedent had not entered work force). In Minier v. State Farm Insurance Company, 309 Pa.Super. 53, 454 A.2d 1078 (1982), this Court determined that the fact that a decedent had retired from employment at the time of the accident did not bar recovery of work loss benefits by his surviving spouse under the No-Fault Act. The Court observed that the No-Fault Act provides for recovery of work loss benefits for those who were not employed at the time of the accident, notwithstanding the reason for their lack of employment. The Court stated that a rule barring survivors of deceased retired persons from collecting work loss would be based on the assumption that retired persons earn no further income. The court rejected such a rule, holding that “the true issue in such a situation is whether the individual retired person had any ‘probable’ income or reasonable expectation thereof.” Id., 309 Pa.Superior Ct. at 58, 454 A.2d at 1080. Thus, it was determined that a calculation of probable income was a matter of proof in each case. Id:

It is clear, therefore, that decedent’s estate is not barred from recovering work loss benefits by virtue of the fact that decedent was retired. The question presented is whether the reduction in pension and social security benefits as a result of his death may be compensated as “work loss”. We find that decedent’s pension and social security benefits were “probable income” which he had a reasonable expectation of receiving. Accordingly, the reduction of such payments as a result of his death was properly compensable as work loss.

Under the No-Fault Act, loss is defined as “accrued economic detriment resulted from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to, allowable expense, work loss, replacement services loss, and survivor’s loss.” 40 P.S. § 1009.103. Work loss is defined, in part, as “loss of gross income of a victim ...” 40 P.S. § 1009.103. The calculation of work loss benefits for certain categories of victims, including those “not employed” involves a determination of “probable weekly income.” The relevant sections of work loss provisions in the No-Fault Act provide the following:

(c) Not employed. — The work loss of a victim who is not employed when the accident resulting in injury occurs shall be calculated by:
(1) determining his probable weekly income by dividing his probable annual income by fifty-two; and
(2) multiplying that quantity by the number of work weeks, or fraction thereof, if any, the victim would reasonably have been expected to realize income during the accrual period.
(d) Definitions. — As used in this section:
'Probable annual income’ means, absent a showing that it is or would be some other amount, the following:
(B) the average annual gross income earned by the victim from work during the years in which he was employed, not to exceed three, preceding the year in which the accident resulting in injury occures, for a victim seasonally employed or not employed at the time of the accident; ...

40 P.S. §§ 1009.205(c) and (d)(B). In the instant case, decedent’s “probable income” was in the form of monthly pension and social security payments which were substantially reduced as a result of his death. We find no limitation in the No-Fault Act that precludes utilization of pension and social security benefits as a measure of lost income in calculating work loss benefits. A ruling that loss of such benefits is not compensable as work loss would contravene the express purpose of the No-Fault Act, that is, “the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on this Commonwealth’s highways ...” 40 P.S. § 1009.102(a)(3). See Allstate Insurance Company v. Heffner, 491 Pa. at 455, 421 A.2d at 633.

Appellant argues that pension and social security benefits are not income “earned from work” and that such benefits are not an appropriate basis for calculating “probable annual income” under Section 1009.205(c). On the contrary, we find that pension income and social security benefits are related to a person’s earning capacity and gross income prior to retirement. As the trial judge stated in his well-reasoned opinion in this case, “[t]here is no question that retirement benefits are a part of the bargained for ‘earnings’ which flow from the employer-employee relationship.” (Opinion of Doty, J., September 29, 1983 at 23). Moreover, retirement benefits and/or social security may be viewed as a substitute for earning power, or a return for past services. See Krakar v. Don Swart Trucking, Inc., 323 F.Supp. 157 (W.D.Pa.1971) (pension and social security benefits are property admissible as evidence of earning power of decedent in action under Pennsylvania Survival Act); see also Gatenby v. Altoona Aviation, 277 F.Supp. 1011 (W.D.Pa.1968) affirmed 407 F.2d 443 (3rd Cir.1968); 81 A.L.R.2d 949 (1962). The loss or reduction of these benefits represents the same pecuniary detriment to a retired individual as does the loss of wages to a person who is employed at the time of an accident.

Appellant also maintains that appellee is not entitled to work loss benefits because dece'dent had retired more than three years prior to his death thereby precluding calculation of probable annual income under § 1009.-205(d)(B). We are unpersuaded by this argument. Section • 1009.205(d)(B) contains a method of calculation rather than words of limitation. Appellant’s argument fails to take into account the prefatory phrase in Section 1009.205(d) which states that probable annual income shall be calculated in accordance with subsection A through C only “absent a showing that it is or would be some other amount.” In this case, it is clear that there is “another amount”, namely, the amount of pension and social security benefits received by decedent prior to his death.

Appellant’s final contention is that the trial court erred in entering summary judgment since the amount of decedent’s “probable annual income” was a disputed factual issue. Appellant claims that it was denied the opportunity to offer proof that the victim would have remained retired and “not employed” even if he had survived. We have determined that pension and social security benefits that decedent would have received if he had survived are a proper measure of work loss under the No-Fault Act. There is no dispute that decedent’s pension and social security benefits were reduced by $489.37 per month and that decedent had an actuarial life expectancy of 31 months, resulting in a total loss of at least $15,170.47. In holding that the diminution of such benefits is properly compensable as work loss, we preclude the need for further evidentiary hearings to determine whether the victim had any other probable income.

Order affirmed.

      . The trial court’s Order denied appellee’s motion for summary judgment seeking recovery of work loss benefits in her own right as decedent’s widow. No appeal has been taken from that portion of the Order.

      . Although there is an indication that the decedent in Minier was receiving a pension, it is unclear whether the pension was included as a basis for calculating decedent’s work loss in that case.

      . The wrongful death and survival statutes involved in the Krakar and Gatenby cases, 12 P.S. § 1601 et seq. and 20 P.S. § 320.601 et seq. respectively, have been repealed, but they were re-enacted in substantially the same form under 42 Pa.Cons.Stat. §§ 8301-8303, and 20 Pa.C.S.A. §§ 3371-3377. In the recent case of Chenoweth v. Schaaf, 576 F.Supp. 1556 (W.D.Pa.1984) the court found that the principles announced in Krakar and Gatenby were controlling under current Pennsylvania law.


author: McEWEN, Judge:

text:
    491 A.2d 207
    Louise CRIVELLARO, Appellant, v. PENNSYLVANIA POWER & LIGHT COMPANY Deborah Bern d/b/a Employee Consultation Service and A.D. Gosman d/b/a Spofford Hall v. Salomon BENSIMHON, M.D.
    Superior Court of Pennsylvania.
    Argued Aug. 22, 1984.
    Filed April 4, 1985.

      Paul F. Metíale, Jr., Bethlehem, for appellant.
    Lynn S. Palenscar, Philadelphia, for appellee.
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   McEWEN, Judge:

We here consider an appeal from an order which sustained the preliminary objections in the nature of a demurrer filed by appellee A.D. Gosman, d/b/a Spofford Hall (appellee), to two counts of appellant’s seven count amended complaint. Appellant raises two issues in this appeal: (1) whether appellant’s amended complaint properly pleads a cause of action for negligent infliction of emotional distress and (2) whether appellant’s amended complaint properly pleads a cause of action for “professional malpractice”. We are constrained to reverse the order.

The facts of the instant case are quite ably summarized in the earlier ruling and opinion of the distinguished Judge James N. Diefenderfer upon the demurrer of appellee to the original complaint:

“Since March 24, 1975, [appellant] has been employed as a secretary by PP & L. [Appellant] alleges that on September 22, 1980, at approximately 11:00 A.M., she was called into Mr. C.D. Caliendo’s office, one of the attorneys in the legal department at PP & L for whom she worked, and he informed her that an appointment had been scheduled for 11:30 A.M. the same day for her with defendant Bern, a social worker employed by the Employee Consultation Service (ECS). ECS is an employee assistance program sponsored by PP & L to provide free professional and confidential counseling to employees concerning problems affecting their job performance. ECS is alleged to be an agent, servant, and employee of PP & L. Further, defendant Bern is alleged to be an agent, servant and employee of PP & L.
When [appellant] met with defendant Bern, it is alleged that Ms. Bern told her that she was “on the verge of being fired” and repeatedly indicated that if [appellant] did not submit to counseling, her employment with PP & L would be terminated, ([appellant’s] complaint, paragraphs 24, 25, hereinafter C.P.). Between September 22 and September 30, 1980, [appellant] met with defendant Bern on four separate occasions throughout which [appellant] claims defendant Bern said [appellant] was suffering from chronic drug dependency which would require treatment at a “psychiatric care facility known as Spofford Hall.” (C.P. 29). It is further alleged that defendant Bern told [appellant] that her continued employment at PP & L was dependent upon her completion of a thirty-day residential counseling program at Spofford Hall.
During her stay at Spofford Hall, [appellant] claims that she did not receive the treatment that was promised her by defendant Bern, in that she never received any type of professional psychiatric help, but rather was subject to an intensive and abusive alcohol and drug detoxification program. Also, [appellant] alleges she was told by the agents, servants, and employees of Spofford Hall that her failure to complete the program would result in termination of her employment with defendant PP & L, and that as a result, [appellant] remained there for thirty-three days. [Appellant] maintains that she is currently free from any sort of drug use or dependency and has never been subject to the influence of any addictive drugs.

Appellant first asserts that the trial court erred when it sustained appellee’s demurrer to the allegation of negligent infliction of emotional distress. Our scope of review of such a claim is described in Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 124, 437 A.2d 1236, 1237 (1981):

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained. Finally, where the propriety of an order sustaining a demurrer is being reviewed by a court of last resort, the fact that the theory for recovery relied upon has not been previously sanctioned, is not conclusive. It must be remembered that “[e]very cause of action ..., was once a novel claim [and] that the absence of Pennsylvania authority for appellant’s proposition is not an end to the issue.” Papieves v. Lawrence, 437 Pa. 373, 376-77, 263 A.2d 118, 120 (1970).

Banyas v. Lower Bucks Hospital, supra, 293 Pa.Superior Ct. at 124, 437 A.2d at 1237 quoting Sinn v. Burd, 486 Pa. 146, 149-51, 404 A.2d 672, 673-74 (1979).

We commence our study by noting that the Pennsylvania Courts have adopted the Restatement (Second) Torts Sections 436 and 436A which provide:

§ 436. Physical Harm Resulting from Emotional Disturbance
(1) If the actor’s conduct is negligent as violating a duty of care designed to protect another from a fright or other emotional disturbance which the actor should recognize as involving an unreasonable risk of bodily harm, the fact that the harm results solely through the internal operation of the fright or other emotional disturbance does not protect the actor from liability.
(2) If the actor’s conduct is negligent as creating an unreasonable risk of causing bodily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediate emotional disturbance, the fact that such harm results solely from the internal operation of fright or other emotional disturbance does not protect the actor from liability.
(3) The rule stated in Subsection (2) applies where the bodily harm to the other results from his shock or fright at harm or peril to a member of his immediate family occurring in his presence.
§ 436A. Negligence Résulting in Emotional Disturbance Alone
If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.

Banyas v. Lower Bucks Hospital, supra 293 Pa.Super. at 128, 437 A.2d at 1239. Moreover, Comment c to Section 436A states:

The rule stated in this Section applies to all forms of emotional disturbance, including temporary fright, nervous shock, nausea, grief, rage, and humiliation. The fact that these are accompanied by transitory, nonrecurring physical phenomena, harmless in themselves, such as dizziness, vomiting, and the like, does not make the actor liable where such phenomena are in themselves inconsequential and do not amount to any substantial bodily harm. On the other hand, long continued nausea or headaches may amount to physical illness, which is bodily harm; and even long continued mental disturbance, as for example in the case of repeated hysterical attacks, or mental aberration, may be classified by the courts as illness, notwithstanding their mental character. This becomes a medical or psychiatric problem, rather than one of law.

The trial court found that the bodily harm purportedly suffered by appellant was not of the severity required by Section 436A. We cannot agree since the third count of appellant’s amended complaint against appellee contains the following averment:

59. ... Plaintiff Louise Crivellaro has suffered from severe emotional distress and related physical trauma, including intense headaches, uncontrollable shaking, involuntary hyperventilation and shortness of breath, frequent nightmares, inability to control bowels, upset stomach, and an intense tightening of the muscles in the neck, back and chest which produced severe pain lasting several days following each incident.

This Court, in Banyas, ruled that a plaintiff fails to state a cause of action based on negligent infliction of emotional distress where the complaint contains no averment of physical harm. The amended complaint of appellant, however, has enumerated various injuries which purportedly resulted from the negligence of appellee. We are of the view that these alleged injuries are of much greater magnitude than the “transitory, non-recurring physical phenomena” contemplated by Section 436A. We further note that the “bodily harm” alleged herein is equivalent to or surpasses the kind of physical injury deemed by other jurisdictions-to be necessary for recovery of damages for negligent infliction of emotional distress. See Haught v. Maceluch, 681 F.2d 291, 299 n. 9 (5th Cir.1982) (under Texas law, depression, nervousness, weight gain, and nightmares are equivalent to physical injury); Gnirk v. Ford Motor Co., 572 F.Supp. 1201 (D.C.S.D., 1983) (depression and insomnia constitute physical injury); D’Ambra v. United States, 396 F.Supp. 1180, 1183-84 (D.C.R.I.1973) (“psychoneurosis” or acute depression, constitutes physical injury); Eyrich v. Dam, 193 N.J.Super. 244, 473 A.2d 539 (1984) (excessive drinking, “suicidal ideation, insomnia, depression, hallucinations constitute physical injury); Corso v. Merrill, 119 N.H. 647, 658, 406 A.2d 300, 307 (1979) (depression constitutes a physical injury); Mobaldi v. Board of Regents, 55 Cal.App.3d 573, 578, 127 Cal.Rptr. 720, 723 (1976) (depression and weight loss constitute physical injury), overruled on other grounds, Baxter v. Superior Court, 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871, 874 (1977); Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214, 216, 220 (1973) (anxiety reaction, phobia and hysteria constitute physical injury); Daley v. La Croix, 384 Mich. 4, 179 N.W.2d 390, (1970) (weight loss and nervousness constitute physical injury); Toms v. McConnell, 45 Mich.App. 647, 657, 207 N.W.2d 140, 145 (1973) (depression constitutes physical injury). Thus, we conclude that the physical injury here averred was of sufficient magnitude to sustain a cause of action for negligent infliction of emotional distress and, therefore, reverse with regard to count three of the complaint.

Appellant also argues that the trial court erred when it sustained appellee’s demurrer to appellant’s allegation of “professional malpractice.” Such a cause of action will permit recovery only when appellant alleges and proves (1) that appellee A.D. Gosman, d/b/a Spofford Hall owed a duty to her, (2) that appellee breached that duty and (3) that this breach was the proximate cause of her alleged injuries. Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 465 A.2d 1231 (1983); Rubin v. Hamot Medical Center, 329 Pa.Super. 439, 478 A.2d 869 (1984). Appellant sets forth the following averments in count five of appellant’s amended complaint:

66. Defendant A.D. Gosman d/b/a Spofford Hall, owed Plaintiff Louise Crivellaro the duty to possess and exercise that degree of professional skill and knowledge ordinarily possessed and exercised by practitioners within the field of psychiatric care and personal counseling.
67. Defendant A.D. Gossman d/b/a Spofford Hall, acting by and through his duly authorized agents, servants and employees, within the course and scope of their employment, violated the aforesaid duty of care and committed malpractice upon the Plaintiff Louise Crivellaro in all of the following particulars:
A. Improperly diagnosing the Plaintiff’s condition;
B. Failing to perform requisite diagnostic tests and examinations;
C. Failing to timely perform requisite diagnostic tests and examinations;
D. Improperly performing requisite tests and examinations;
E. Failing to possess the requisite degree of knowledge and skill necessary for the proper performance and reading of tests and examinations performed on Plaintiff;
F. Failing to obtain informed consent from Plaintiff;
G. Failing to procure a proper consulting opinion concerning Plaintiff’s condition, diagnosis and treatment;
H. Failing to properly treat, care and counsel the Plaintiff; especially by negligently subjecting the Plaintiff to an intensive and abusive drug and alcohol detoxification program, when in fact, the Plaintiff was neither a drug addict nor an alcoholic.
68. As a direct and proximate result of the conduct of Defendant A.D. Gosman d/b/a Spofford Hall, acting by and through his duly authorized agents, servants and employees, within the course and scope of their employment, Plaintiff Louise Crivellaro sustained severe personal injuries from which she will continue to suffer in the future; the full extent of these injuries is not completely known but includes severe emotional distress and related physical trauma, specifically intense headaches, uncontrollable shaking, involuntary hyperventilation and shortness of breath, frequent nightmares, inability to control bowels, upset stomach, and an intense tightening of the muscles in the neck, back and chest which produced severe pain lasting several days following each incident.
69. As a direct and proximate result of the conduct of Defendant A.D. Gossman d/b/a Spofford Hall, acting by and through his duly authorized agents, servants and employees, within the course and scope of their employment, Plaintiff Louise Crivellaro has been obligated to expend large sums of money for medical and psychiatric care in an effort to effect a cure of her injuries and she will be obligated to expend said sums for an indefinite time in the future.

While the eminent hearing judge has expressed the rationale for his conclusion in quite persuasive fashion, we are compelled to disagree since we are of the view that appellant has, in these paragraphs, alleged that appellee owed her a duty, that appellee breached that duty and that this breach was the proximate cause of her injuries. As a result, we conclude that the complaint has set forth a cause of action for malpractice and, therefore, also reverse the order with regard to count five.

Since we are of the view that appellant has successfully pleaded causes of action for negligent infliction of emotional distress and for medical malpractice, we reverse the order which sustained appellees’ preliminary objections in the nature of a demurrer.

Order reversed.

      . The two counts which we here study contained the only allegations against appellee A.D. Gosman d/b/a Spofford Hall. This Court, therefore, is vested with jurisdiction of this appeal since the order effectively terminated appellant’s action against that appellee. See Canulli v. Allstate Insurance Co., 315 Pa.Super. 460, 462 A.2d 286 (1983).

      . Appellant, upon a successful demurrer by appellee to her original complaint in this action, was given leave to file the amended complaint which we here review.

      . Although appellant, in count three of her complaint, did not specifically state that her injuries were of a continuing nature, we note these same injuries averred in other counts of the amended complaint, including count five, were alleged to be unremitting, we will not, therefore, defeat appellant’s cause of action as a result of such a de minimis omission.