text:
    COURT OF COMMON PLEAS PHILADELPHIA COUNTY
    Commonwealth of Pennsylvania vs. Aida Rodriquez Commonwealth of Pennsylvania vs. Luz Rodriquez
    CP 9004-4539, 4540
    CP 9004-4536, 4537, 4538
   OPINION

The above two defendants were brought to trial as codefendants under the above captioned terms and bill of information numbers on February 23, 1993. Defendant Aida Rodriquez was charged with possession of a controlled substance with intent to deliver and criminal conspiracy. Defendant Luz Rodriquez was charged with possession of a controlled substance with intent to deliver, and possession of drug paraphernalia. She was not charged with conspiracy. A jury found each Defendant guilty of all the charges — Defendant Aida Rodriquez with reference to drugs found at 2928 North Ella Street and conspiring to possess drugs at Ella Street with persons other than codefendant Luz Rodriquez; Defendant Luz Rodriquez with reference to drugs found at 218 E. Indiana Street, as a joint possessor of the drugs found at Ella Street, and of possessing drug paraphernalia at 218 E. Indiana Street.

Defendants filed post-trial motions asking for Arrest of Judgment and Acquittal and/or a new trial. A Judgment of Acquittal will be ordered for Aida Rodriquez. A new trial will be ordered for Defendant Luz Rodriquez.

I. Aida Rodriquez

In reconsideration, the Court concludes that it erred in denying Aida Rodriquez’s Motion to Suppress the evidence seized based on the faulty execution of a search warrant by Philadelphia Police Officers. After reviewing the testimony and arguments, the Court now concludes that it may have misconstrued certain statements made by defense counsel in argument which led the Court to believe defense counsel had conceded the issue on whether the police officers complied with Criminal Rule of Procedure 2007, requiring the officers to “knock and announce.”

A review of the testimony makes clear that defense counsel did not concede this issue but, instead, focused argument on other matters. For this reason, and the following legal analysis, the Court reverses its decision, thereby granting defendant Aida Rodriquez’s Motion to Suppress all physical evidence seized as a result of the illegal entry. Following this conclusion, the verdict against her must be vacated, because absent the evidence, no case beyond a reasonable doubt can be made out against her.

Criminal Rule of Procedure 2007, Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution, requires police officers to “knock and announce” when executing a search warrant, allowing for a reasonable period of time for response from the occupants of the premises. If there is no response after the lapse of such reasonable period of time, the police may forcibly enter the premises.

The case law, however, allows for certain exceptions to this standard. In Commonwealth v. Chambers, 528 Pa. 403, 598 A.2d 539 (1991), the Pennsylvania Supreme Court enunciated four such exceptions. Police may override the knock and announce rule if “1) the occupants remain silent after repeated knocking and announcing; 2) the police are virtually certain that the occupants of the premises already know their purpose; 3) the police have reason to believe that an announcement prior to entry would imperil their safety; and 4) the police have reason to believe that evidence is about to be destroyed.” Id., 598 A.2d at 541. See also Commonwealth v. Means, 531 Pa. 504, 614 A.2d 220 (1992). None of these exceptions are applicable in this case.

Police Officer Staunton, in her direct testimony on the Motion to Suppress, testified as follows:

Q: [By the Assistant District Attorney] What happened next?
A: We went to 2928 Ella Street where I had observed the male in the red jacket, Julio Rodriquez, and an unidentified male going towards 2928. When we stopped, Officer Brosman, he grabbed Julio Rodriquez, wearing a red jacket. I then proceeded up the steps. The screen door had closed. The unidentified male had already entered the premises.
Q: How had that male entered the premises?
A: I knocked bn the screen door. I yelled “police, we have a warrant.” And I immediately went in ... (Emphasis added.) (2/19/93, N.T., pgs. 24-25).

Officer Staunton further testified that the premises was a brick rowhouse with a metal screen door (2/19/93, N.T., p. 16); that when she got to the front steps of the premises she could look directly into the house; that she could see six male individuals in the living room and defendants Luz and Aida Rodriquez along with a younger Hispanic female and an older Hispanic female seated at the kitchen table. (2/19/93, N.T., p. 31).

The only testimony that could give rise to an inference of one of the listed exceptions was Officer Staunton’s testimony on cross examination, as follows:

Q: [By Ms. Purnell for Aida Rodriquez] Particularly in this case where you had a suspect fleeing into the premises you were concerned for your safety?
A: That’s correct.

(2/19/93, N.T., p. 32). In and of itself, the above does not satisfy the burden upon the Commonwealth to prove an exception to the “knock and announce” rule. Commonwealth of Pennsylvania v. Beard, 501 Pa. 385, 461 A.2d 790 (1983) cited by the Commonwealth is inapposite because there not only were the occupants outside and who had gone inside but one of them shouted “police”.

The testimony makes clear that the officer’s entry into the premises was simultaneous with her knock and announcement of her presence as required by Rule 2007. See Commonwealth v. Rudisill, 424 Pa.Super. 313, 622 A.2d 397 (1993) (Penn, knock and announce rule violated where forcible entry occurred after knock but simultaneous with identification as police officers); See also Commonwealth v. Bull, 422 Pa.Super. 67, 618 A.2d 1019 (1993) (forcible entry simultaneous with knock and announce, deemed illegal).

Secondly, the argument that officers were in hot pursuit of a suspect who was entering the house must be rejected. The testimony, at best, from the Commonwealth’s point of view is unclear on this point. The evidence does not show that the unidentified male was aware of a police presence. If the officers were in hot pursuit of a suspect, there would have been no reason for the police officers to knock and announce. They could have simply entered on the heels of the alleged criminal. Therefore, a hot pursuit or exigent circumstances exception to the Rule must be rejected.

Finally, any allegation of danger to safety, although barely raised, is not convincing beyond a preponderance of the evidence. Again, under limited circumstances, police may disregard the knock and announce rule where they believe that announcing themselves “would imperil their safety.” Commonwealth v. McDonel, 411 Pa.Super. 187, 601 A.2d 302, 306 (1991). But, in McDonel, the Court was unwilling to create a presumption that “exigent circumstances sufficient to do away with the knock and announce rule [would] exist any time a search for drugs is conducted.” Id.

Essentially, such a presumption would entail an assumption that every time a crime involved drugs, weapons were likely to be present, thereby endangering the officers lives. This type of presumption, the Court opined, was much better left to careful studies by the legislature. Allowing a court to take judicial notice of the presence of weapons does little to protect an officer and does great harm to the protections afforded to citizens under the Constitution. See also Commonwealth v. Grubb, 407 Pa.Super. 78, 595 A.2d 133 (1991). It must be remembered that the rationale for requiring a time lapse and a requirement that the police knock and announce themselves is to give the occupants of the premises sufficient time to reflect and surrender the premises peacefully. This concept guarantees that occupants will not have resisted because they are unaware it is police who are going to enter.

As a result, the execution of the search warrant failed to meet the standards prescribed by Rule 20C7.

II. Luz Rodriquez

The entry into 2928 North Ella Street was unlawful. However, a valid search warrant existed for the home of Luz Rodriquez located at 218 East Indiana Street. Within its four comers, it demonstrated probable cause that the contraband would be found there.

Defendant argues that the search warrant 68892 lacked probable cause upon its face because the name of the occupant or owner of the premises was seemingly unrelated or unconnected to Luz Rodriquez and not sufficiently described. Defendant asserts that the inclusion of facts identifying owners or occupants as a Hispanic male, a description of his age and weight and clothing, and that he was on those premises, makes the search warrant relating to Luz Rodriquez unlawful. We reject that argument for the following reasons.

There is no requirement that a search warrant specifically state by name the owner of the premises. The only requirements are that the affidavit of probable cause include “a) the date and time of issuance; b) specific identification of the property to be seized; c) name or description with particularity the person or place to be searched ...” Rule 2005, 42 Pa.C.S.A. A description of the place to be searched does not mandate that the affidavit include any specific or certain description. It only requires a description with particularity, a standard met in this case.

Neither Luz nor Aida Rodriquez or any other person need be mentioned in the warrant. Other persons were described along with an acceptable description of the premises to be searched and a connection or relationship between such males and the premises is set forth in the affidavit of probable cause.

The above arguments are common to the affidavits for both Aida and Luz Rodriquez. The affidavits of probable cause are virtually identical. Without elaborating, we conclude that given the totality of the circumstances described and applying a common sense interpretation, it is more likely than not that contraband will be found on the premises. See Commonwealth v. Pleummer, 421 Pa.Super. 51, 617 A.2d 718 (1992).

Defendant Luz Rodriquez argues that the illegal entry into 2928 North Ella Street led to the search of 218 E. Indiana Street and, therefore, all evidence seized in this second search must be suppressed as “fruit of the poisonous tree.”

However, the validity of the search warrant for 218 E. Indiana Street on its face negates a “fruit of the poisonous tree” argument since it created an independent source for the search and seizure of the contraband found. Commonwealth v. Ariondo, 397 Pa.Super. 364, 580 A.2d 341 (1990). It was inevitable that the contraband would have been seized at 218 E. Indiana Street. Whether Luz Rodriquez’s consent was valid or not is immaterial.

Given our conclusion that the evidence seized from Indiana Street was proper, the following issues must be addressed:

First, was that evidence in and of itself sufficient to support the jury’s verdict against her as to the drugs and drug paraphernalia found there?

Secondly, are there other factors that require a new trial rather than entering a Judgement of Sentence based on the quantity found at 218 E. Indiana Street (and the paraphernalia)?

Briefly, in support of the sufficiency of the evidence, there is the quantity, its scattered sites throughout the premises, Defendant’s knowledge as to where these items were located, indicia of Luz Rodriquez’s occupancy and/or control of the premises such as a gas bill in her name and a letter from the Department of Welfare addressed to Luz Rodriquez, her possession of a key to the premises and the presence and abundance of adult female clothing there.

However, here the jury also convicted Defendant Luz Rodriquez of possession of the contraband at Ella Street on a joint possession theory; that is, that Luz and Aida Rodriquez jointly and constructively possessed the contraband there. Since we have concluded that evidence should have been suppressed and not gone to the jury, it cannot be said that that evidence did not influence or prejudice the jury against Luz Rodriquez and lead to the guilty verdict as to the contraband and paraphernalia found at Indiana Street.

In light of the above, it appears unnecessary to address in any detail Defendant Luz Rodriquez’s other arguments concerning the validity of her consent to search Indiana Street, and that the Court’s charge on .joint possession was erroneous or at least materially misleading. We will note only that we conclude that Commonwealth v. Slaton, 530 Pa. 207, 608 A.2d 5 (1992) is distinguishable from the facts here.

We will also note that the Trial Court’s charge may have given the jury the impression that it had to join the guilt or innocence of Defendant Luz Rodriquez together with that of her codefendant Aida Rodriquez.

In addition to the general charge regarding joint possession, the Court stated the following:

In Common English language, I guess reduced to the bottom line is was it theirs to do with? Or was it someone else’s to do with? Did these people have the power and the intent to control the destiny of the controlled substance, or in the case of Luz Rodriquez, the drug paraphernalia? Or was it for someone else to have that power and intent? It’s not just a question of power, it’s also a question of intent to exercise that power. (N.T. 3/1/93, pp. 388-389.)

Upon review of the Court’s charge, in toto, together with the language cited above, it cannot be said that the jury understood clearly that the guilt or innocence of Luz Rodriquez was not wed to the guilt or innocence of codefendant Adda Rodriquez with respect to the contraband at Ella Street. Commonwealth v. Tyler, 495 Pa. 662, 435 A.2d 1212 (1981) and cases cited therein are controlling.

Appropriate Orders will issue.

BY THE COURT:

/s/ Samuel M. Lehrer

SAMUEL M. LEHRER, J.

3/29/95


source: Caselaw Access Project

author: POPOVICH, Judge.

license: Public Domain

text:
    680 A.2d 873
    Robert L. LUCAS and Penny L. Lucas, Appellants, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 21, 1996.
    Filed June 19, 1996.
    Reargument Denied Aug. 30, 1996.

      David C. Mason, Philipsburg, for appellants.
    Jered L. Hock, Harrisburg, for appellee.
    Before POPOVICH, SAYLOR and EAKIN, JJ.
   POPOVICH, Judge.

This is an appeal from the entry of summary judgment in favor of appellee, Progressive Casualty Insurance Company, by the Court of Common Pleas of Centre County on April 11, 1995. Herein, appellants argue that the lower court erred when it based its decision solely upon 75 Pa.C.S.A. § 1791, rather than reading § 1791 in pari materia with 75 Pa.C.S.A. § 1731. Appellants also submit that the court erred in granting summary judgment in favor of appellee since they did not sign valid rejection of underinsured and uninsured motorists protection forms in accordance with 75 Pa.C.S.A. § 1731. Upon review, we are constrained to reverse the decision of the court below and remand for entry of judgment in favor of appellants.

In Grant v. GAF Corp., 415 Pa.Super. 137, 148-49, 608 A.2d 1047, 1053 (1992), affirmed, 536 Pa. 429, 639 A.2d 1170 (1994), we reiterated those standards to be applied when reviewing an entry of summary judgment and stated:

When reviewing the grant of summary judgment, this court will reverse only if there has been an error of law or an abuse of discretion. Jones v. Keystone Ins. Co., 364 Pa.Super. 318, 528 A.2d 177 (1987), alloc. denied, 518 Pa. 613, 540 A.2d 535 (1988). Where the pleadings, depositions, answers to interrogatories and admissions filed show no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Hedlund Manuf. Co. v. Weiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357 (1988).

See also, Pa.R.C.P. 1035; Mutual Benefit Insurance Co. v. Goschenhoppen Mutual Insurance Co., 392 Pa.Super. 363, 572 A.2d 1275 (1990).

Presently, the record reveals the following relevant history and facts of this case, as set forth in the opinion of the lower court:

[Appellee] is an insurance carrier which issued to [appellants] a Pennsylvania Motor Vehicle Insurance policy after the passage of the July 1990 Amendments to the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. Section 1701 et se. In the course of applying for insurance, [appellants] executed an application which indicated they wished “0” Underinsurance Motorist (“UIM”) protection. Before the accident in question, [Appellants] received copies of declarations for the Progressive Insurance coverage, which declarations indicated “rejected” for UIM coverage. A licensed insurance producer, Andrew Cipar, testified in his deposition that at the time of the [appellant’s] execution of the UIM rejection on April 5, 1991, he explained to the [appellants] the significance of the rejection form before [appellants] applied for the insurance in question. Progressive submitted to the Pennsylvania Insurance Department a form of rejection of underinsured motorist protection, which was approved by the insurance department effective July 1, 1990. These above facts are not in dispute.
Therefore, the issue before this Court is whether the [appellants] are precluded from arguing they did not have actual knowledge of the coverages available to them or coverages they had chosen since their signatures on [75 Pa.C.S.A. § 1791] “Important Notice” created a conclusive presumption of their actual knowledge and understanding of the availability of those benefits. We find that the fact that [appellants’] signatures are valid on the [75 Pa.C.S.A. § 1731] Rejection Form and given the circumstances surrounding the signing of the form, we conclude the signing was done voluntarily, knowingly and intelligently [sic] and the [appellants] voluntarily agreed to relinquish the UIM protection.

Trial Court Opinion, pp. 2-3 (footnote added).

Turning to appellants’ first assertion of error, we agree that the lower court erred when it based its decision solely upon 75 Pa.C.S.A. § 1791, rather than reading § 1791 in pari materia with 75 Pa.C.S.A. § 1731. Presently, the lower court concluded that since Progressive provided appellants with the “Important Notice” required by § 1791 of the MVFRL, there was a conclusive presumption that appellants waived their uninsured and underinsured motorist coverage. See general ly, Tukovits v. Prudential, 448 Pa.Super. 540, 546-48, 672 A.2d 786, 789 (1996); Motorists Ins. Co. v. Emig, 444 Pa.Super. 524, 527-31, 664 A.2d 559, 561-562 (1995); Insurance Co. of the State of Pennsylvania v. Miller, 426 Pa.Super. 519, 521-25, 627 A.2d 797, 798-799 (1993); Botsko v. Donegal Mutual Ins. Co., 423 Pa.Super. 41, 45, 620 A.2d 30, 32, appeal denied, 536 Pa. 624, 637 A.2d 284 (1993); Lambert v. McClure, 407 Pa.Super. 257, 263 n. 4, 595 A.2d 629, 632 n. 4 (1991). However, we find that the conclusive presumption of § 1791 with respect to any rejection of uninsured and underinsured motorists coverage does not apply here since the record reveals that Progressive failed to comply with the mandates of § 1731 of the MVFRL.

Recently, in the case of Motorists Ins. Cos. v. Emig, supra, we were presented with a situation very similar to that before us. Therein, we held that the conclusive presumption raised by strict compliance with § 1791 that a person knows the level of his or her underinsured and uninsured motorists coverage could not be applied because “the record [did] not evidence a prerequisite compliance with Section 1734.” Emig, 664 A.2d at 562. This court concluded that compliance with § 1791 of the Motor Vehicle Financial Responsibility Law does not operate as a “blanket or catch-all waiver” which superseded all other statutory requirements of the MVFRL. Rather, § 1791 must be read in pan materia with the other waiver provisions of the MVFRL. Emig, 664 A.2d at 566-569. Thus, “the conclusive presumption of § 1791 is not triggered unless and until the statutory mandate of [the applicable waiver provision] has first been fulfilled.” Emig, 664 A.2d at 569-570.

In the present action, it is not the waiver provision of § 1734 which appellants argue was not followed, but rather the waiver provisions of § 1731. Nevertheless, we find that the reasoning of Emig, supra, is controlling. Accordingly, we find that the lower court erred when it failed to determine whether Progressive complied with the requirements of § 1731 of the MVFRL before applying the conclusive presumption of § 1791.

Turning to the question of whether Progressive properly-obtained appellants’ rejection of underinsured motorists coverage, we must first review § 1731 of the MVFRL which, in pertinent part, provides:

Oí) Uninsured motorist coverage - Uninsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of uninsured motor vehicles. The named insured shall be informed that he may reject uninsured motorist coverage by signing the following written rejection form:
REJECTION OF UNINSURED MOTORIST PROTECTION
By signing this waiver I am rejecting uninsured motorist coverage under this policy, for myself and all relatives residing in my household. Uninsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have any insurance to pay for all losses and damages. I knowingly and voluntarily reject this coverage.
Signature of First Named Insured
Date
(c) Underinsured motorist coverage - Underinsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles. The named insured shall be informed that he may reject underinsured motorist coverage by signing the following written rejection form:
REJECTION OF UNDERINSURED MOTORIST PROTECTION
By signing this waiver I am rejecting underinsured motorist coverage under this policy, for myself and all relatives residing in my household. Underinsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have enough insurance to pay for all losses and damages. I knowingly and voluntarily reject this coverage.
Signature of First Named Insured
Date
(c.l) Form of waiver.- Insurers shall print the rejections forms required by subsections (b) and (c) on separate sheets in prominent type and location. The forms must be signed by the first named insured and dated to be valid. The signatures on the forms may be witnessed by an insurance agent or broker. Any rejection form that does not specifically comply with this subsection is void. If the insurer fails to produce a valid rejection foim, uninsured or under-insured coverage, or both, as the case may be, under the policy shall be equal to the bodily injury liability limits. On policies in which either uninsured or underinsured coverage has been rejected, the policy renewals must contain notice in prominent type that the policy does not provide protection against damages caused by uninsured or underinsured motorist. Any person who executes a waiver under subsection (b) or (c) shall be precluded from claiming liability of any person based upon inadequate information. (Emphasis added.)

Presently, it is undisputed that appellants signed rejections of uninsured and underinsured motorist protection which contained the language required by § 1731(b) and (c). Further, it is undisputed that these rejections were printed on the same sheet of paper. Thus, the waiver forms provided by Progressive failed to comply with § 1731(c.l) which require the rejections to be printed on separate sheets of paper. As provided by § 1731(c.l), “[a]ny rejection form that does not specifically comply with this subsection is void.” (Emphasis added)

The consequence of Progressive’s failure to provide valid rejection forms, though severe in the present case where it is clear from the record that appellants knowingly waived their underinsured coverage, is expressly mandated by § 1731(c.l) which provides: “If the insurer fails to produce a valid rejection form, uninsured or underinsured coverage, or both, as the case may be, under the policy shall be equal to the bodily injury liability limits.” Accordingly, appellants are entitled to underinsurance coverage equal to their bodily injury liability limits. Cf., Emig, 664 A.2d at 568 (“As noted elsewhere in this opinion, we are required to construe the provisions of the MVFRL liberally in order to afford [the insured] the greatest possible coverage.”) (collecting cases).

In sum, we find that the lower court erred when it applied the conclusive presumption of § 1791 of the MVFRL without first determining whether Progressive had complied with § 1731 of the MVFRL. Further, since Progressive failed to comply with § 1731, by statute, the insurer is required to provide appellants with underinsured (and uninsured) coverage equal to their bodily injury liability limits. Therefore, we are constrained to find that the lower court committed an error of law in granting summary judgment in favor of Progressive, when, by operation of law, appellants are entitled to underinsured motorist coverage. Accordingly, we remand for entry of judgment in favor of appellants.

Summary Judgment reversed. Case remanded for further proceedings in accordance with this opinion. Jurisdiction relinquished.

      . We note that the form of rejection of underinsurance motorists coverage submitted by appellee to the Pennsylvania Department of Insurance was not the same form actually signed by appellants. The forms for rejection of underinsured motorists protection and uninsured motorists protection which were approved by the Insurance Department were printed on separate sheets of paper, while the form signed by appellants provided for the rejection of underinsured and uninsured protection on the same piece of paper.


author:
      OLSZEWSKI, Judge.
      DEL SOLE, Judge,

text:
    680 A.2d 877
    COMMONWEALTH of Pennsylvania v. Peter George LUKTISCH, Appellant.
    Superior Court of Pennsylvania.
    Argued May 21, 1996.
    Filed June 25, 1996.
    Reargument Denied Sept. 6, 1996.

      Jack I. Lowe, Jr., Public Defender, Clarion, for appellant.
    William E. Hager, III, District Attorney, New Bethlehem, for Com., appellee.
    Before CIRILLO, President Judge Emeritus, and DEL SOLE and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge.

On August 29, 1995, a jury found appellant Peter George Luktisch guilty of rape and statutory rape. These convictions stem from an incident with his step-daughter, D.G., who was eleven years old at the time. This meritless appeal follows the imposition of an eighty-two month to twenty year prison sentence.

Initially, Luktisch alleges that the trial court erred in allowing T.L. (D.G.’s step-sister and Luktisch’s natural daughter) to testify concerning sexual abuse Luktisch had also inflicted upon her. T.L., who was twenty-nine years old at the time of trial, testified that Luktisch “started touching her improperly when she was 5 and that between the ages of 5 and 8 he started having oral sex with her, and at age 8 [Luktisch] started having sexual intercourse with her.” Opinion, 12/28/95 at 7. When T.L. was ten years old, sometime in 1976 or 1977, her mother moved her away from appellant and the sexual assaults ended. Id.

First, Luktisch contends that “the uncharged acts committed on [T.L.] were too remote from the charged crime to be properly admitted into evidence under the common scheme, plan, design or course of conduct exception to the general rule that evidence of uncharged acts is inadmissible against a defendant.” Appellant’s brief at 9. We disagree. Admittedly, the atrocities committed upon T.L. occurred fourteen years prior to those committed upon D.G. Focusing solely upon this time lapse, however, is improper. At trial, C.G. (D.G.’s natural sister and Luktisch’s step-daughter) testified that she, too, had been victimized by appellant. C.G., who was twenty-one years old at the time of trial, testified that in 1982, when she was eight or nine years old, Luktisch started touching her breasts and vagina. This contact progressed to oral sex and, finally, when she was eleven years old, Luktisch began engaging her in sexual intercourse. This abhorrent contact continued until 1990, when C.G. moved away from appellant. Thus, at most, six years elapsed between the time Luktisch’s assaults on T.L. ended and the time he turned his depraved intentions upon C.G. This is the time period we must focus upon. See Commonwealth v. Smith, 431 Pa.Super. 91, 94-96, 635 A.2d 1086, 1088 (1993) (“the issue of remoteness under the common plan exception is determined by analyzing the time involved between each of the criminal incidents”). Was this six year time period excessive under the circumstances? We think not.

Our Supreme Court has recently stated that “[w]hile remoteness in time is a factor to be considered in determining the probative value of other crimes evidence under [the theory of common scheme, plan or design], the importance of the time period is inversely proportional to the similarity of the crimes in question.” Commonwealth v. Miller, 541 Pa. 531, 548-50, 664 A.2d 1310, 1319 (1995). See also Smith, supra. In the case at hand, Luktisch’s tactics concerning his young victims were nearly identical. The similarity of appellant’s approach to victimizing the children was aptly addressed by the trial court as follows:

The acts committed upon [D.G.], [C.G.], and [T.L.] were strikingly similar. The three victims were near the same age when [Luktiseh] molested them; they all had the relationship of daughter or step-daughter to [Luktiseh]; all three were living with [Luktiseh] when the acts occurred; and the nature of the acts were almost identical. The progression of the acts performed on each victim was similar; improper touching first, then oral sex, then sexual intercourse. It is true that [D.G.] only made passing references to acts performed upon her by the [appellant] other than the singular act of sexual intercourse for which the [appellant] was charged and convicted, but [C.G.] and [T.L.] gave descriptions of how [Luktisch’s] molesting them had progressed. Certainly what [D.G.] did describe fits squarely into the overall common scheme and course of conduct as it progressed from [T.L.], to [C.G.], to [D.G.].

Opinion, 12/28/95 at 9-10. Since the pattern of molestation committed upon his young victims was so distinct, especially concerning T.L and C.G., we cannot find that the six-year layoff between the victimization of T.L. and C.G. was excessive as to render T.L.’s testimony overly prejudicial. See Miller, supra. Consequently, we find no trial court error and Luktisch’s first issue on appeal must fail.

Next, Luktisch contends that the trial court should not have allowed T.L. to testify because, in doing so, the trial court reversed its own previous ruling. Prior to trial, the trial court ruled that since C.G.’s testimony alone would establish a common plan, scheme or design, T.L.’s testimony would have been cumulative and, thus, its prejudicial effect outweighed its probative value. At trial, however, the credibility of D.G. and C.G. was severely undermined when it was revealed that their mother had threatened to “get her daughters to swear that [their former landlord] had molested them” if the landlord attempted to prosecute them for back rent. When the believability of C.G. and D.G. became crippled, the Commonwealth’s need to present T.L.’s evidence under the common plan exception became inflated. At that point, the trial court did not err in determining that T.L.’s testimony was more probative than prejudicial, and, therefore, it was entirely proper to allow T.L. to testify. See generally Commonwealth v. Frank, 395 Pa.Super. 412, 421-23, 577 A.2d 609, 614 (“Commonwealth’s need to present evidence under the common scheme exception” must be examined to determine whether the probative value of such evidence is outweighed by its prejudicial impact), alloc. denied, 526 Pa. 629, 584 A.2d 312 (1990).

Next, Luktisch alleges that the Commonwealth failed to establish the date of D.G.’s rape with reasonable specificity; and, therefore, his judgment of sentence should be reversed and he should be discharged. We disagree. It is true that “the date of the commission of the offense must be ‘fixed with reasonable certainty.’ ” Commonwealth v. Devlin, 460 Pa. 508, 513, 333 A.2d 888, 890 (1975) (emphasis original) (citation omitted). Nevertheless, this rule has been somewhat relaxed when the victim is a child. In Commonwealth v. Groff, this Court stated that

[w]hen a young child is a victim of crime, it is often impossible to ascertain the exact date when the crime occurred. He or she may only have a vague sense of the days of the week, the months of the year, and the year itself. If such children are to be protected by the criminal justice system, a certain degree of imprecision concerning times and dates must be tolerated.

378 Pa.Super. 353, 364, 548 A.2d 1237, 1242 (1988). Moreover, the Groff Court concluded that

the Commonwealth must be allowed a reasonable measure of flexibility when faced with the special difficulties involved in ascertaining the date of an assault upon a young child. On the other hand, in order to ensure a fair trial for the defendant, the Commonwealth should conduct a thorough examination and come forward with any evidence which indicates when the alleged crime is most likely to have taken place.

Id. at 360-62, 548 A.2d at 1241.

In the case at hand, D.G. testified that Luktisch raped her when she was eleven years old, in either 1990 or 1991. N.T., 8/29/95 at 71. Moreover, she stated that the season was either spring or fall. Id. at 72. Further, she testified that, during the summer, she described the incident to Glenn Holabaugh, who was the family’s landlord at the time. Id. at 78. Finally, Holabaugh testified that, sometime during the summer of 1990, D.G. revealed to him that Luktisch had been molesting her. Id. at 121.

Reading the testimony of D.G. and Holabaugh together, it becomes clear that Luktisch raped the child during the spring of 1990. In light of D.G.’s age at the time of the attack, we do not find that this time period was so indefinite as to violate Luktisch’s due process rights. See Groff, supra (judgment of sentence affirmed where Commonwealth established that the child victim had been sexually abused sometime during the “summer of 1985”). See also Commonwealth v. Fanelli, 377 Pa.Super. 555, 547 A.2d 1201 (1988) (en banc), alloc. denied, 523 Pa. 641, 565 A.2d 1165 (1989). Consequently, Luktisch’s penultimate claim of error must fail.

Lastly, Luktisch alleges that the trial court erred in failing to grant a continuance due to excessive heat and noise in the court room. It is settled that “[t]he trial court has discretion over a request for continuance and a denial of such a request will not be reversed absent a showing of palpable and manifest abuse of the court’s discretion.” Commonwealth v. Ah Thank Lee, 389 Pa.Super. 201, 204, 566 A.2d 1205, 1206 (1989), alloc. denied, 527 Pa. 615, 590 A.2d 756 (1990). Here, the record reveals that a noisy PennDOT crew was working outside of the courtroom and that the trial took place on a hot August day. Nevertheless, we cannot find that these factors were so intrusive as to have deprived Luktisch of a fair trial. The trial court took extraordinary measures to insure that the jury and the parties would be as comfortable as possible. In fact, the judge moved the trial to a different courtroom on a higher floor so as to reduce the noise and provide air conditioned comfort. Moreover, we note that, when asked by the trial court, all jurors indicated that they had been able to hear the proceedings. N.T., 8/29/95 at 53. Finally, we note that the entire trial lasted only one day. In light of the above, we cannot conclude that the trial court manifestly abused its discretion in refusing to grant Luktisch a continuance. See Ah Thank Lee, supra. As such, appellant’s final argument must join his others in failure.

Judgment of sentence affirmed.

DEL SOLE, J., dissents.

DEL SOLE, Judge,

dissenting.

I must dissent from that portion of the Majority’s Opinion that upholds the trial court’s decision to allow T.L.’s testimony of events that occurred 18 years previously. I conclude that the initial decision of the trial court to exclude this testimony was correct. Subsequent credibility challenges to other witnesses should not affect that decision.

      . We note that Luktisch also claims that he was overly prejudiced when T.L. testified that she had previously reported her molestation in order to prevent Luktisch from perpetrating the same crimes against her half-sister, A.L. This bald allegation of reversible error is not included in Luktisch's statement of questions presented for review, nor has appellant developed any argument or even cited to any relevant authority in support of this contention. As such, we deem this issue waived. See Pa.R.A.P. 2119; Olmo v. Matos, 439 Pa.Super. 1, 2-3, 653 A.2d 1, 5 (1994) (failure to support issue with relevant facts and authority constitutes waiver); Commonwealth v. Melson, 432 Pa.Super. 1, 25 n. 7, 637 A.2d 633, 645 n. 7 (failure to develop an argument constitutes waiver of claim), alloc. denied, 538 Pa. 633, 647 A.2d 509 (1994); Harkins v. Calumet Realty Co., 418 Pa.Super. 405, 412-14, 614 A.2d 699, 703 (1992) (issues not included in an appellant’s statement of questions involved are waived).


author: HESTER, Judge. McEWEN, Judge,

text:
    680 A.2d 881
    Bradley R. SORBER and Phyllis Sorber v. AMERICAN MOTORISTS INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 11, 1995.
    Filed July 12, 1996.

      Edwin A. Abrahamsen, Scranton for appellant.
    Sidney D. May, West Pittston, for appellees.
    Before McEWEN, KELLY and HESTER, JJ.
   HESTER, Judge.

American Motorists Insurance Company appeals from the August 10,1995 order entered by the trial court in this action which was filed by appellant’s insureds, Bradley R. and Phyllis Sorber. We affirm.

The record reveals the following. Appellant’s insureds, Bradley R. and Phyllis Sorber (appellees), were involved in an automobile accident on August 1, 1992, with Daniel Agresta, the tortfeasor. Anthem Insurance Company insured Daniel Agresta. On behalf of Agresta, Anthem tendered a partial settlement of $40,000 of the tortfeasor’s face amount of $50,-000 liability, or eighty percent of the policy. The issues of liability and damages had not yet been determined. Appellees informed appellant that they desired to accept the proposed settlement as long as the settlement did not preclude their claim for the underinsured coverage under their insurance policy with appellant. Appellant refused to agree to any proposed settlement for less than the face amount of the tortfeasor’s policy for bodily injury liability. On July 17, 1995, appellees filed a praecipe for a writ of summons and on July 24, 1995, a petition to resolve their rights under their policy.

The court issued a rule to show cause and then filed the contested order. In the order, the trial court offered appellant two choices. Either it could pay appellees the $40,000 which had been offered by the tortfeasor’s insurer from the $50,000 face value of the tortfeasor’s policy within ten days and preserve its right to proceed against the other insurer in the trial as subrogee, or appellees could settle the action against the tortfeasor for the $40,000 offered. Appellees nevertheless then would be permitted to go forward with arbitration regarding the amount of their uninsured motorist’s claim, with appellant receiving credit toward the unexhausted underinsured motorist coverage for the gap between underinsured motorist coverage liability and the face amount of the tortfeasor’s policy. Appellant wished to avoid either agreeing to the settlement or tendering its draft now since liability and damages have yet to be determined through arbitration. This appeal followed.

In Boyle v. Erie Insurance Co., 441 Pa.Super. 103, 656 A.2d 941 (1995), we declared that an exhaustion clause which requires that the limits of bodily insurance coverage must be exhausted prior to any claim for underinsured motorist coverage was against public policy and did not preclude recovery by the insured from underinsurance motorist coverage. We nevertheless required that a credit must be given to the insured’s insurance company for any difference between such a settlement and the ultimate award of damages. In Chambers v. Aetna Casualty, 442 Pa.Super. 155, 658 A.2d 1346 (1995), we expressly determined that failure to settle a claim for the tortfeasor’s full policy face value did not bar an insured’s subsequent claim for underinsurance motorist coverage but held that the insurer could not also be required to pay the insured any gap between the partial settlement and the limits of the underinsurance coverage. The trial court simply is applying this precedent in the instant case.

Appellant first argues that Chambers is not binding. It argues that the Supreme Court has not yet denied a pending petition for allowance of appeal filed in the Chambers case. It therefore claims Chambers is not binding precedent. We reject this claim. As long as the decision has not been overturned by our Supreme Court, it remains binding precedent. Consequently, the trial court order is proper.

Appellant next claims that although a petition for allowance of appeal was denied by our Supreme Court in Boyle, Boyle is distinguishable on its facts. Appellant notes that whereas the insured in Boyle actually had settled with the tortfeasor, only a proposed settlement has been offered at this point in the present case. Further, appellant asserts there was a considerable and unreasonable delay of ten months by the insurer in Boyle; whereas in the instant case only two months have elapsed since the proposed settlement offer. Therefore, appellant asserts the trial court’s order is premature, and it is unfair to force it to settle now for less than the face value of the tortfeasor’s policy or tender its draft to its insured and pursue its subrogation rights.

We disagree. The reasoning in Boyle applies herein even though the period since the offer of settlement is short. If the insureds wish to accept the tender of less than the face amount of the tortfeasor’s policy, and the insurer nonetheless is to receive a credit against the uninsured motorists’ award for the full value of the policy, Boyle is satisfied. Boyle stands for the proposition that an insurer may not unreasonably withhold permission to settle for less than the face value of the tortfeasor’s policy limits when it will be protected by a credit for the difference against any liability it may incur for under-insurance coverage. That reasoning applies herein. Two months is sufficient time to consider a settlement offer. Further, the fact that a settlement has not yet occurred does not alter this.

In this case, appellant was given a credit to insulate it against any liability for underinsured payments for the difference between the settlement and the face value of the tortfeasor’s policy. The settlement herein represented eighty percent of the face value of the tortfeasor’s liability coverage. Appellant has not alleged any concrete benefit from delay or what prejudice will occur by not delaying, other than it must accept the settlement and waive its subrogation rights or tender the draft to its insureds and pursue its subrogation rights. We already have declared that exhaustion clauses as a predicate for coverage under underinsurance provisions of an insurance contract are void as against public policy. This, in reality, is what appellant is doing by not approving the settlement. Accordingly, we conclude that order of the trial court is proper.

Order affirmed.

McEWEN, J., files a concurring statement and concurs in the result.

McEWEN, Judge,

concurring.

I concur in the result reached by the majority since this panel is bound by the panel decisions in Boyle v. Erie Insurance Company, 441 Pa.Super. 103, 656 A.2d 941 (1995), allo. denied, 542 Pa. 655, 668 A.2d 1120 (1995); Chambers v. Aetna Casualty & Surety Co., 442 Pa.Super. 155, 658 A.2d 1346 (1995), allo. denied, 543 Pa. 707, 672 A.2d 303 (1996); and Kelly v. State Farm Insurance Company, 447 Pa.Super. 214, 668 A.2d 1154 (1995), and write only to express a concern.

Recent history has witnessed the demise of the No Fault Act at the pens of judicial revision of the express provisions of insurance policies. Our legislature responded by enactment in 1984, of the Pennsylvania MVFRL. However, judicial interpretation of the MVFRL triggered further legislative attention and enactment in 1990, of the Act 6 amendments to the MVFRL.

This Court in Boyle was called upon to interpret the provisions of a policy issued in conformity with the MVFRL prior to the enactment of Act 6. However, subsequent decisions of this Court — which, unlike Boyle, involved policies issued after the effective date of the Act 6 amendments — have effectively rewritten the underinsured motorist coverage provisions of every policy of insurance issued in Pennsylvania.

One may not gainsay that, in ruling upon issues of coverage, this Court is required to give effect to the clear and unambiguous language of the contract of insurance, and may disregard those express provisions only where they are found to be void as violative of a positive rule of statutory or decisional law. Hall v. Amica Mutual Insurance Co., 538 Pa. 337, 648 A.2d 755 (1994). In Boyle v. Erie Insurance Company, supra, our illustrious colleague of revered memory, Judge Donald E. Wieand, in interpreting a contract of insurance issued in conformity with the pre-Act 6 version of the MVFRL, held that the express requirement in the policy issued to the Boyles — namely, that the limits of all applicable bodily injury liability policies be exhausted prior to the arbitration of any claim for underinsured motorist coverage — was void as contrary to public policy where underinsured motorist coverage was required by law and the insured had received an offer to settle of $15,000.00 from one tortfeasor whose total coverage was $15,000.00 and an offer of $150,000.00 from the other tortfeasor whose liability coverage was $300,000.00.

This Court subsequently examined the issue of exhaustion of liability coverages in Chambers v. Aetna Casualty & Surety Co., supra, a post-Act 6 case, without, however, analyzing the effect of the Act 6 amendments which had made underinsured motorist coverage voluntary rather than mandatory. Our court there proceeded to hold that the offer of a structured settlement with a total payout of $110,545.00 and a present value of $90,000.00 was sufficient to trigger the rule in Boyle, a pre-Act 6 decision, where the total liability coverage available was $100,000.00.

The liability coverage exhaustion issue was then visited in Kelly v. State Farm Insurance Company, supra, where the claim for underinsured motorist benefits was predicated on the death of the named-insured’s 11-year-old daughter. Even though the carrier for the tortfeasor made an offer to pay but 25% of its liability limit of $50,000.00, this Court held that the offer was sufficient to compel arbitration of the underinsured claim. Anomalously enough, however, the Kelly court noted that “an exhaustion clause must be interpreted to provide protection to an insurance company against a demand by its insured to fill the ‘gap’ after a weak claim has been settled for an unreasonably small amount.” Kelly v. State Farm Insurance Company, supra at 221, 668 A.2d at 1157, quoting Boyle v. Erie Insurance Company, supra at 108, 656 A.2d at 943. In light of this holding of Kelly, compelling arbitration of an underinsured motorist claim arising under a policy issued after the effective date of Act 6, where the tortfeasor offered only 25% of his available coverage, I am unable to discern when, if ever, an insurer can properly invoke its contractual right to require exhaustion of an applicable liability policy. Thus, it would appear that our Court again has revisionist pen in hand, this time to alter the MVFRL to preclude any policy issued in conformity therewith from containing an exhaustion clause. Thus it is that I concur in the result.

      . We consider the instant order a declaration of the insured’s rights under the policy. Accordingly, it is a final, appealable order. See Palladino v. Dunn, 361 Pa.Super. 99, 521 A.2d 946 (1987)


author: HESTER, Judge.

text:
    680 A.2d 884
    COMMONWEALTH of Pennsylvania v. Julian Thomas BROWN a/k/a Thomas J. Brown, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 2, 1996.
    Filed July 15, 1996.

      Sanford A. Middleman, Pittsburgh, for appellant.
    Claire C. Capristo, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before POPOVICH, EAKIN and HESTER, JJ.
   HESTER, Judge.

Julian Thomas Brown a/k/a Thomas J. Brown appeals the May 4, 1995 order denying him the right to withdraw his guilty plea. We affirm.

The record indicates the following. On September 20, 1991, appellant pled guilty in connection with two criminal actions. At criminal action number 9006354, appellant pled guilty to aggravated assault, and in exchange, the Commonwealth dismissed charges of receiving stolen property and two counts of violations of the Uniform Firearms Act. The firearms violations stem from the fact that appellant, a former convict, was carrying an unlicensed firearm. At criminal action number 9005616, appellant pled guilty to a violation of the same act, and the Commonwealth agreed to dismiss a charge of altering, forging, or counterfeiting documents or plates under the Motor Vehicle Code. The sentence to be imposed in both actions was to be five to ten years imprisonment because one of the charges to which appellant pled guilty earned that mandatory minimum.

The evidence which would have been presented against appellant was summarized by the district attorney as follows:

Had we proceeded to trial in this matter, we would show through the testimony of Pittsburgh Police Officers Nagy, Wade, Cust, Connelly, Conway, Fitzgerald, Lenny, also Dr. Robert Levine of the Allegheny County Crime Lab and Mr. Melvin Akers that on January 22, 1990, Mr. Akers was residing at 5514 Black Street. He opened the door in the early morning hours and found Mr. Brown at his door. Mr. Brown was asking to use the telephone.
Mr. Akers allowed Mr. Brown into his home for that purpose. And after using the phone, Mr. Brown then shot Mr. Akers in the stomach area.
Mr. Brown then fled the home. The victim was able to call the police.
When the police arrived, he opened the door and showed the officers where he was shot.
The spent casing was recovered from the kitchen floor, and eventually the bullet was removed from Mr. Akers’ stomach area and sent — the casing and the bullet were sent to the Allegheny County Crime Lab.
Approximately two months later on March 23, 1990, around one o’clock in the afternoon, Officers Connelly and Fitzgerald stopped Mr. Brown on Centre Avenue near Devilliers Street and stopped him for the purpose of giving a traffic citation. They patted him down, and on his person they found a .25 caliber Raven semiautomatic pistol. That was seized from him.
He was placed under arrest. Sent to the Allegheny County Crime Lab, and at Crime Lab Number 901751, the pistol with Serial Number 135147 was test-fired, found to be in good operating condition. The bullets and cartridges were compared to bullets and cartridges in the open case file and an identification was made. The identification that was made was that the test cartridge cases fired from that bullet matched the spent cartridge case submitted to the Crime Lab on January 23, 1990, by the Pittsburgh Police on the Melvin Akers case.
The bullet that was fired also had the striations from the Melvin Akers — similar to the bullet that was fired in the Melvin Akers assault ease.
The barrel length was measured to be two and three-eights of an inch. The defendant did not at that time have a license to carry that firearm.

Notes of Testimony (“N.T.”), 9/20/91, at 9-11. After this summary, the district attorney and defense counsel told the court that there was a negotiated plea and that appellant knew that he was to receive two concurrent five to ten year sentences. The trial court accepted the plea agreement and sentenced appellant to an aggregate term of five to ten years in prison. Id. at 16.

On October 8, 1991, appellant filed a pro se motion to withdraw his guilty plea, alleging that his plea was unlawfully induced by his counsel, that the sentence was outside the guidelines, and that the sentence was improper since no presentence report had been filed. On November 8, 1991, the court conducted a hearing on the motion to withdraw the guilty plea.

The trial court reviewed the guilty plea explanation form executed by appellant. The court observed that appellant initialled his negative answer to the question of whether any threats had been made against him in connection with the plea. Similarly, appellant initialed the negative answer to the question of whether any promises had been made to induce the guilty plea other than the express plea negotiated by his counsel. Finally, appellant responded affirmatively to the question of whether he was satisfied with counsel’s representation.

As to appellant’s sentencing claims, the trial court made the following observations. Appellant had waived his right to a presentence report at the time the plea was entered. Furthermore, given the offense gravity score for the offenses at issue and appellant’s prior record score of four, appellant’s sentence for the aggravated assault conviction was in the mitigated range, and his sentence for the firearm violation was in the standard range.

Appellant then testified at the hearing. Even though the plea colloquy clearly indicates that the negotiated sentence was five to ten years imprisonment, appellant insisted that he had been told that the maximum sentence he would receive was five years imprisonment. Thus, appellant was effectively cross-examined as follows:

Q You are telling this Court that you knew you were being sentenced to five to ten years, but you just went ahead and did it anyway?
A I thought five years was my maximum sentence, sir.
Q You heard Judge Little say it was five to ten years; didn’t you? You heard that?
I mean, you were standing right here in front of this microphone when that was done; weren’t you? Right here? Right here?
You heard him say that; didn’t you?
A Yes, sir I heard him.
Q Okay. At that point you knew it was a five-to-ten-year sentence; didn’t you? Yes or no.
A Yes.
Q But you did not say anything at that point; did you? You did not say, wait a minute, that is not my understanding of the plea agreement? You did not say anything at that point?
A No.
Q Okay. You did not say anything to Judge Little that that is not your understanding of the plea agreement?
A No.
Q You remember the Judge saying that to you; didn’t he?
A Yes.

N.T., 11/8/91, at 24-15. Based on the foregoing, appellant’s motion to withdraw his guilty plea was denied. Appellant, pro se, filed an appeal from that denial, which was dismissed due to technical defects.

On January 8, 1992, appellant filed a petition for relief under the PCRA. Counsel was appointed, and he filed an amended petition. Among other things, appellant requested reinstatement of his appellate rights based on the fact that he had asked counsel to file a direct appeal. While appellant’s appellate rights were reinstated nunc pro tunc, appellant was denied PCRA relief. This appeal followed.

Appellant, represented by new counsel, contends that he is entitled to withdraw his guilty plea because he was not informed of the fact that by entering the plea, the probation he was serving as to other crimes would be revoked. Appellant relies upon Commonwealth v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992) and Commonwealth v. Fay, 294 Pa.Super. 332, 439 A.2d 1227 (1982). In Persinger, the Supreme Court ruled that a plea was unknowingly tendered because the defendant was not informed that the sentences for the crimes to which he was pleading guilty could be imposed consecutively, and those sentences subsequently were imposed consecutively. In Fay, we ruled that a guilty plea was not knowingly tendered when the defendant was not informed that the sentence for the crime to which he was pleading guilty could be imposed consecutively to a sentence he then was serving on federal charges.

Herein, appellant acknowledges that he was informed that the sentences could be imposed consecutively. We add that in this case, appellant’s sentences were imposed concurrently. Rather, appellant argues that a collateral consequence of entry of plea, which is that his probation on a prior conviction could have been revoked, never was explained to him and this fact alone renders his plea involuntary.

Once a guilty plea has been entered and sentence imposed, the plea may be withdrawn only upon a showing of manifest injustice, which may be established if the plea was not voluntarily or knowingly entered. Commonwealth v. Carter, 540 Pa. 135, 656 A.2d 463 (1995). However, the appellate courts of the Commonwealth consistently have ruled that a defendant’s lack of knowledge of collateral consequences to the entry of a guilty plea does not render a plea unknowing or involuntary. Commonwealth v. Frometa, 520 Pa. 552, 555 A.2d 92 (1989) (plea valid even though defendant not informed he would face deportation as a result of plea); Pennsylvania Department of Transportation v. Johnson, 434 Pa.Super. 1, 641 A.2d 1170 (1994) (guilty plea to various drug charges could not be withdrawn based on fact defendant was not told that his driver’s license would be suspended for ninety days due to entry of plea); see also Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1174 (1994).

Probation revocation proceedings in an unrelated criminal action do not involve sentencing consequences of pleading guilty in the action at issue. Thus, we hold that the possibility of probation revocation is a collateral consequence to a guilty plea, and the fact that a defendant was not informed that he faces such a possibility in an unrelated criminal case does not undermine the validity of the plea. Accord Parry v. Rosemeyer, 64 F.3d 110 (3rd Cir.1995).

Order affirmed.


author: MONTEMURO, Justice.

text:
    680 A.2d 887
    Vincent C. MOTTER, Appellant, v. The MEADOWS LIMITED PARTNERSHIP; Charles J. Taylor, P.E., General Partner & Trustee, the Meadows Sewer Company, Robert G. Hartman t/d/b/a Whittock-Hartman Engineers and Penn Harris Construction Company, Inc., Appellees, v. KDS EXCAVATING, INC.
    Superior Court of Pennsylvania.
    Argued June 11, 1996.
    Filed July 17, 1996.

      Anthony Stefanon, Harrisburg, for appellant.
    Michael R. Kelly, Harrisburg, for appellee Meadows Ltd. Partnership.
    Scott D. Moore, Carlisle, for appellee Robert G. Hartman.
    Karen S. Feichtenberger, Harrisburg, for appellee Penn Const.
    Before TAMILIA, JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Justice.

This is an appeal from the Orders of the Court of Common Pleas of Cumberland County granting summary judgments in favor of Appellees. For the following reasons, we affirm.

On August 23,1989, Appellant Vincent Motter (“Appellant”) was injured when the ten foot deep trench he was working in collapsed on top of him. The site of the accident was part of a construction project known as “The Meadows” located in Middlesex Township, Cumberland County, Pennsylvania. Originally this land was owned by The Meadows Limited Partnership (“Meadows Limited”) and Charles J. Taylor (“Taylor”). The Meadows Sewer Company (“Meadows Sewer”) was incorporated by Meadows Limited and Taylor to construct, own, and operate the sewer facilities for the subdivision. Meadows Limited and Taylor laid out a series of subdivision plans for The Meadows. Final Subdivision Plan # 3 was the last plan designed (dated March 8, 1989) and was the plan adhered to by the parties. Robert G. Hartman, t/d/b/a Whittock-Hartman Engineers (“Hartman”), was hired by Meadows Limited, Taylor, and Meadows Sewer to design and engineer plans for construction of sewer facilities for The Meadows subdivision.

On June 30, 1989, Penn Harris Construction Company (“Penn Harris”) purchased the land and the rights to The Meadows project known as Final Subdivision Plan # 3. Penn Harris hired KDS Excavating Inc. (“KDS”), an independent contractor, to install sanitary sewer facilities for the subdivision.

On August 23, 1989, KDS was excavating a portion of the Final Subdivision Plan # 3 marked manhole 3-3, Lot # 34, on the survey performed by Hartman. The survey revealed that the trench in this area was to be more than ten feet deep. Hartman’s engineering drawings also showed that the soil at this location was unstable and, under applicable OSHA standards, required KDS to use shoring and bracing techniques to ensure worker safety. Representatives of KDS testified that they were unaware of these OSHA requirements and, therefore, did not follow them. Instead, workers for KDS “sloped” or “benched” the sides of the trench to prevent cave-ins. Appellant, an employee of KDS, was working in the ten foot deep trench, when the sides of it collapsed on top of him causing his injuries.

On August 12, 1991, Appellant brought suit for his injuries against: the original landowner and designer of the subdivision plans, Meadows Limited and Taylor; the company created to own and operate the sewer facilities for the Meadows subdivision, Meadows Sewer; the landowner at the time of the accident, Penn Harris; and the engineer who designed the construction of the sewage facilities for the subdivision, Hartman. In addition, appellant’s employer KDS was joined as an additional defendant on December 6,1991.

On July 18,1994, the trial court granted summary judgment as to Meadows Limited, Taylor, Meadows Sewer, and Hartman. On June 9,1995, the court granted Penn Harris’ motion for summary judgment. Appellant now appeals these decisions as to all defendants except Meadows Sewer.

On a motion for summary judgment, the record must be viewed in the light most favorable to the nonmoving party, and all doubts as to existence of genuine issue of material fact must be resolved against the moving party. Summary judgment may be entered only in cases where the right is clear and free from doubt. Hayward v. Medical Ctr. of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992). In such clear cases, summary judgment is proper if the moving party is entitled to judgment as a matter of law. Santillo v. Reedel, 430 Pa.Super. 290, 294, 634 A.2d 264, 266 (1993). After viewing the facts of the case in a light most favorable to Appellant, the trial court determined that no genuine issues of material fact existed and, therefore, granted appellants’ motions for summary judgment. We agree.

In reviewing an order granting summary judgment, an appellate court must determine whether there is a genuine issue of material fact. The grant of summary judgment can be sustained only if pleadings, depositions, answers to interrogatories and admissions show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law. Logan v. Mirror Printing Co. of Altoona, Pa., 410 Pa.Super. 446, 449, 600 A.2d 225, 227 (1991). The Superior Court must examine the record in the light most favorable to the nonmoving party, and will only disturb the trial court’s decision if there is an abuse of discretion or an error of law. Second Fed. Sav. and Loan Ass’n. v. Brennan, 409 Pa.Super. 581, 585, 598 A.2d 997, 998 (1991).

The trial court properly granted summary judgment as to Meadows Limited, Taylor and Hartman. After a review of the records and the parties briefs, we find that the trial court adequately addressed and disposed of Appellant’s arguments. We acknowledge the fact that the trial court did not address the contention made by Appellant that Taylor and Meadows Limited should be vicariously liable for the negligence of Hartman under sections 416 and 427 of Restatement (Second) of Torts. However, based on the trial court’s proper finding that Hartman was not negligent, there is no need to discuss these claims.

Appellant also disputes the trial court’s grant of summary judgment in favor of Penn Harris. Penn Harris owned the property on which this accident happened and was the party responsible for hiring KDS to excavate the trench in which Appellant was injured. As a general rule, “the employer of an independent contractor is not liable for the physical harm caused [to] another by an act or omission of the contractor or his servant.” Mentzer v. Ognibene, 408 Pa.Super. 578, 589, 597 A.2d 604, 610 (1991), alloc. denied, 530 Pa. 660, 609 A.2d 168 (1992) (citing Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 151, 189 A.2d 271, 277 (1963) (citations omitted)). “An independent contractor is in possession of the necessary area occupied by the work contemplated under the contract, and his responsibility replaces that of the owner who is, during the performance of the work by the contractor, out of possession and without control over the work or the premises.” Mentzer, 408 Pa.Super. at 589, 597 A.2d at 610 (citing Hader, 410 Pa. at 151, 189 A.2d at 277).

An exception to this general rule is recognized, where the independent contractor is hired to do work which the employer should recognize as likely to create a special danger or peculiar risk of physical harm to others unless special precautions are taken. Restatement (Second) of Torts, §§ 416 and 427 (1965) (adopted as law of Pennsylvania in Philadelphia Elec. Co. v. James Julian, Inc., 425 Pa. 217, 228 A.2d 669 (1967)). Appellant argues that the sewer trench KDS was hired to excavate in this case presented such a special danger or peculiar risk as to fall within this exception. We disagree.

To determine whether a special danger or peculiar risk exists, the court in Ortiz v. Ra-El Dev. Corp., 365 Pa.Super. 48, 528 A.2d 1355 (1987), alloc. denied, 517 Pa. 608, 536 A.2d 1332 (1987), established a two prong test: 1) Was the risk foreseeable to the employer of the independent contractor at the time the contract was executed?; and 2) Was the risk different from the usual and ordinary risk associated with the general type of work done, i.e., does the specific project or task chosen by the employer involve circumstances that were substantially out-of-the-ordinary? Id. at 53, 528 A.2d at 1359. This two step process requires that:

“the risk be recognizable in advance and contemplated by the employer [of the independent contractor] at the time the contract was formed ... [and that] it must not be a risk created solely by the contractor’s ‘collateral negligence’ ... [i.e.,] negligence consisting wholly of the improper manner in which the contractor performs the operative details of the work.”

Edwards v. Franklin & Marshall College, 444 Pa.Super. 1, 7, 663 A.2d 187, 190 (1995) (quoting Mentzer, 408 Pa.Super. at 592, 597 A.2d at 610).

The distinction between ordinary risk and peculiar risk is a mixed question of law and fact which can be made, in clear cases, by the trial judge as a matter of law. Ortiz, 365 Pa.Super. at 56, 528 A.2d at 1359 (quoting McDonough v. United States Steel Corp., 228 Pa.Super. 268, 276 n. 6, 324 A.2d 542, 546 n. 6 (1974)). It should also be noted that “the Peculiar Risk Doctrine is an exception to a general rule and, [as such], it should be viewed narrowly.” Edwards, 444 Pa.Super. at 7, 663 A.2d at 190. As the court noted in Marshall v. Southeastern Pa. Transp. Auth., 587 F.Supp. 258 (E.D.Pa.1984):

In order for the liability concepts involving contractors to retain any meaning, especially in industries such as construction where almost every job task involves the potential for injury unless ordinary care is exercised, peculiar risk situations should be viewed narrowly, as any other exception to a general rule is usually viewed.

587 F.Supp. at 264.

Even when viewed in a light most favorable to Appellant, the facts of this case do not support the Appellant’s argument that the peculiar risk doctrine should apply because, as the trial court noted, “[digging a sewer trench around ten feet deep in stable or unstable soil appears to be nothing more than a common, routine worksite procedure.” Motter v. The Meadows Ltd. Partnership et al., No. 2740 Civ. 1991 pp. 9-10 (Cumberland Co. July 18, 1994). Thus, the trial court did not err in granting Penn Harris’ motion for summary judgment.

Excavation of a sewage trench brings with it attendant risks, one of which is collapse of the trench walls. Appellant cites a number of Pennsylvania cases for the proposition that digging a sewer trench in and of itself poses a peculiar risk of harm to others. Heath v. Huth Engineers, Inc., 279 Pa.Super. 90, 93, 420 A.2d 758, 760 (1980) (holding that employer of independent contractor properly held liable for collapse of sewer trench); Dudash v. Palmyra Borough Auth., 335 Pa.Super. 1, 9, 483 A.2d 924, 928 (1984) (finding that employer of independent contractor may be held liable for death of employee of contractor hired to dig sewer trench); Ortiz, 365 Pa.Super. at 54, 528 A.2d at 1358-59 (stating, in dicta, that under the Heath facts, employer of independent contractor would be liable for peculiar risk posed by digging of sewer trench).

However, we disagree with the premise that excavating a sewage ditch poses a peculiar risk of harm to others. The Heath decision, which so holds, gives the “peculiar risk” issue such cursory treatment that it is of little help to us in our decision. We feel that our recent decision in Edwards v. Franklin and Marshall College serves as a better guide to applying the peculiar risk doctrine to the facts before us today. While our decision in Edwards did not involve a trenching accident, the facts are quite analogous to those faced by this court in the instant case.

In Edwards, a construction worker employed by an independent contractor was injured when he fell through a roof on property owned by the contractor’s employer. 444 Pa.Super. at 3, 663 A.2d at 188. The contractor was hired to do primarily exterior renovations including a significant amount of rooftop work. Id. The plaintiff was injured when a portion of the roof he was working on collapsed and he fell through the hole to the floor below. Id. at 4, 663 A.2d at 188-189. For our purposes, it is worth noting that the contractor in Edwards was aware of the dangerous condition of the roof, as was the plaintiff, who, at the time he was injured, was fixing a hole where a fellow employee had previously fallen through. Id. at 3, 663 A.2d at 188.

In the instant case, the independent contractor was hired to excavate a sewer trench. Appellant was injured when a portion of the trench he was working on collapsed on top of him. The record reveals that the employees, including Appellant, were aware of the dangerous condition of this trench. It is also clear from the testimony of KDS employees that the trench in which Appellant was injured had partially collapsed prior to the day of the accident.

The court in Edwards recognized that the contractor in that case was in the business of constructing and reconstructing commercial structures. Id. at 8, 663 A.2d at 191. The dangerous condition of the building was known by all of the parties involved. Id. “Because the remodeling of these old structures necessarily involved working high off the ground, the danger of falling is apparent.” Id. The court went on to conclude, “[e]leary, the risk that [plaintiff] might fall through the roof, given the known condition of the building that was being repaired, did not present a ‘special danger’ or ‘peculiar risk.’ ” Id.

The same can be said of the trench dug by KDS in the instant case. Excavating a sewer trench involves work in deep holes where the danger of collapse is an obvious and unavoidable risk. KDS employees testified that they were aware of the danger of collapse. We agree with the trial court’s finding that cave-in of a sewer trench is not an unusual or unexpected risk, but rather, is a risk faced by excavating companies every day.

We are also unpersuaded by Appellant’s argument that the condition of the soil in this case made the project unusually dangerous. While Appellant’s expert testified that the shale soil surrounding the trench posed a significant risk of cave-in, whether the risk is “peculiar” for purposes of sections 416 & 427 is a legal determination. We conclude that the conditions confronted by KDS were not so unusual or out-of-the-ordinary as to pose a peculiar risk to others.. As the court noted in Ortiz, “all construction work involves a risk of some harm; only where the work is done under unusually dangerous circumstances does it involve a ‘special danger’ or ‘peculiar risk.’ ” Id. at 7-8, 528 A.2d at 1359.

The record reveals that KDS had been doing sewer work for four years prior to the accident. It is also clear from the record that employees of KDS had worked in shale soil before and were aware of its propensity to cave-in. In fact, the record revealed that soil had repeatedly fallen into the trench from the side walls. According to testimony of KDS employees, because of a series of unstable incidents in the trench, a trench box had been brought to the worksite. Unfortunately for Appellant, this safety device was never used.

Appellant maintains that because OSHA has set a number of safety standards to be followed when working with this type of soil, the risk posed by digging this trench was peculiar or especially dangerous. We disagree. In this case, as was the case in, Lorah v. Luppold Roofing Co., Inc., 424 Pa.Super. 439, 622 A.2d 1383 (1993), “[w]hat made the activity of increased risk was not the activity itself, which is normally of minimal risk, but the failure of the independent contractor (and/or his servants) to take adequate precautions.” Id. at 436, 622 A.2d at 1386. We conclude that the task of digging a trench, when done properly, is not one that is peculiarly dangerous. Appellant made no showing that his accident would have occurred had the proper safety precautions been taken. It was KDS’s failure to abide by the OSHA rules and regulations, and not the nature of the soil, which increased the danger of cave-in. A number of other jurisdictions have already taken the position that the task of digging trenches does not present any special danger or peculiar risk when proper safety measures are taken. See, e.g., Peterson v. City of Golden Valley, 308 N.W.2d 550 (N.D.1981) (finding that trenching project does not present extraordinary risk when standard safety precautions are taken); Micheletto v. State of Montana, 244 Mont. 483, 798 P.2d 989 (1990) (adopting the position taken by the North Dakota Supreme Court in Peterson); Balagna v. Shawnee County, 233 Kan. 1068, 668 P.2d 157 (1983) (concluding that injuries resulting from the caving in of ditches because of lack of proper safety precautions are direct result of negligence of contractor in performance of excavation work).

Furthermore, we conclude that Penn Harris is not liable for KDS’s failure to take proper safety precautions. As we said in Peffer v. Penn 21 Assocs., 406 Pa.Super. 460, 594 A.2d 711 (1991):

[violation of safety conditions alone ... cannot be a basis for carving out exceptions to the rule that the owner is not liable for injuries incurred by employees of a subcontractor, as to do so would nullify the rule for all practical purposes since many, if not most, industrial accidents can be attributed to a failure to comply with safety regulations of either state or federal agencies.

Id. at 465, 594 A.2d at 713. Penn Harris was justified in believing that KDS would follow the legally required safety precautions necessary to protect its workers. As stated in Comment b of section 426 of the Restatement (Second) of Torts, the employer of an independent contractor “is not required to contemplate or anticipate abnormal or unusual kinds of negligence on the part of the contractor, or negligence in the performance of operative details of the work which ordinarily may be expected to be carried out with proper care ...” Further support for this position is found in Comment b of section 427 of the Restatement (Second) of Torts: The employer is only liable if the danger is “normally to be expected in the ordinary course of the usual or prescribed way of doing [the work] ...” Section 427 “has no application where the negligence of the contractor creates a new risk, not inherent in the work itself or in the ordinary or prescribed way of doing it ...” Restatement (Second) of Torts § 427 cmt. d (1965).

This reasoning was recently applied by the court in Mentzer. In that case, the plaintiff was injured when he fell through a stairwell opening that lacked proper safety devices. Id. at 583, 597 A.2d at 607. The court stated that “the lack of such protective devices at the perimeter of the stairwell opening is the result of the ordinary negligence by the contractor in the operative details of the work and is a classic example of collateral negligence by the contractor ... for which the property owner is not responsible.” Id. at 589, 597 A.2d at 611. In the instant case, Appellant’s accident was a direct result of KDS’s failure to install the trench box as is required under applicable OSHA regulations. The record clearly indicates that this device was not only available, but was, in fact, at the worksite at the time of Appellant’s accident. The work itself in this case was not peculiarly or especially dangerous, but rather, KDS was negligent in the manner in which it went about performing the task. Because this accident was caused by the ordinary negligence of KDS in the “operative details” of digging the sewer trench, Penn Harris is not responsible for the injuries suffered by Appellant.

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Penn Harris and dismiss all claims made by Appellant.

      Retired Justice assigned to Superior Court.

      . OSHA ("Occupational Safety and Health Act”) Section 1926.652(a) provides minimum standards for safe trenching operations:
      1926.652 Specific trenching requirements.
      (a) Banks more than 5 feet high shall be shored, laid back to a stable slope, or some other equivalent means of protection shall be provided where employees may be exposed to moving ground or cave-ins. Refer to Table P-1 as a guide in sloping of banks ...

        Table P-1 states that ‘‘[c]lays, silts, loams or nonhomogeneous soils require shoring or bracing” and ”[t]he presence of groundwater requires special treatment.”


author: OLSZEWSKI, Judge.

text:
    680 A.2d 893
    Mary DiFELICEANTONIO, Executrix of the Estate of Serafino Difeliceantonio, Deceased, and Widow in her own right, Appellant, v. ARMSTRONG WORLD INDUSTRIES, INC., Cleaver Brooks, Columbia Boiler Co. of Pottstown, H.K. Porter Company, Inc., Hajoca Plumbing Company, J.H. France Refractories Co., Nosroc Corporation, Pecora Corporation, Peerless Industries, Inc., Penn Crete Products, Pittsburgh-Corning Corporation, Pre Blend Products York Industries, Inc. Joseph G. KEENAN and Marian Keenan, H/W, Appellants, v. ACANDS, INC., American Ceiling, Inc., Cleaver Brooks, Columbia Boiler Co. of Pottstown, General Refractories Company, H.K. Porter Company, Inc., Hajoca Plumbing Company, J.H. France Refractories Co., Melrath Gasket Inc., Nosroc Corporation, Pecora Corporation, Pittsburgh-Corning Corporation, York-Shipley, Inc., Manville Corporation Asbestos Disease Compensation Fund, Eagle-Picher Industries Inc., Celotex Corporation, Dana Corporation, Rock Wool Insulating Co., Inc., York Industries.
    Superior Court of Pennsylvania.
    Argued June 18, 1996.
    Filed July 19, 1996.

      Eliot B. Present, Philadelphia, for appellants.
    Edward Curtin, Jr., Philadelphia, for appellee.
    Before KELLY, EAKIN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge.

In January of 1995, the damages phase of a reverse-bifurcated asbestos case was tried in the Philadelphia Court of Common Pleas. Following a seven-day trial, the jury returned a verdict in favor of defendant/appellee Pécora Corporation and against plaintiffs/appellants Mary DiFeliceantonio, executrix of the estate of Serafino DiFeliceantonio and widow in her own right, and Joseph and Marian Keenan, husband and wife. The jury found, by way of special interrogatories, that appellants did not suffer from an asbestos-related disease or injury. This appeal followed the denial of appellants’ post-trial motions and the subsequent entry of judgment in appellee’s favor.

Appellants first argue that the trial court erred in refusing to grant challenges for cause as to two prospective jurors. In completing standard jury questionnaires, prospective jurors No. 207 and No. 673 answered the following question in the affirmative:

21. In a civil case, would you have any problem following the Court’s instruction to award money for damages for things like pain and suffering, loss of life’s pleasures, etc., although it is difficult to put a dollar figure on them?

R.R. at 31, 33. During subsequent voir dire questioning, however, both prospective jurors explained and then modified their answers to this question. Prospective juror No. 207 explained her problem with certain damage awards and ultimately stated that she “probably could” follow the judge’s instructions if she were sitting on a jury. R.R. at 25. Similarly, prospective juror No. 673 explained her answer and then noted that she “would try” to follow the court’s instructions on any damages issue. R.R. at 27. While appellants later dismissed these two prospective jurors with peremptory challenges, they still claim that the trial court abused its discretion in denying the challenges for cause.

The purpose of voir dire is to “ensure the empaneling of a fair and impartial jury capable of following the instructions on the law as provided by the trial court.” Commonwealth v. Paolello, 542 Pa. 47, 69, 665 A.2d 439, 450 (1995). In conducting the voir dire process, it is important to recognize the human element inherent in our jury system. As our Supreme Court stated:

The law recognizes that it would be unrealistic to expect jurors to be free from all prejudices, a failing common to all human beings. We can only attempt to have them put aside those prejudices in the performance of their duty.... We therefore do not expect a tabula rasa but merely a mind sufficiently conscious of its sworn responsibility and willing to attempt to reach a decision solely on the facts presented, assiduously avoiding the influences of irrelevant factors.

Commonwealth v. Johnson, 452 Pa. 130, 136, 305 A.2d 5, 8 (1973). Thus, the trial court’s review of a challenge for cause is not a wide-ranging inquiry into a potential juror’s personal beliefs and moral standards, but rather is a focused probe into that juror’s ability to render a verdict that is “fair, just, and in accordance with the testimony presented.” Id. at 137, 305 A.2d at 9. Once a trial court renders a decision in the voir dire process, we will not reverse that decision on appeal absent a palpable error. Commonwealth v. Proctor, 526 Pa. 246, 257-59, 585 A.2d 454, 460 (1991).

Instantly, the trial court was satisfied that prospective jurors No. 207 and No. 673 could put aside any personal feelings they might have about damage awards and apply the law as given to them. Both prospective jurors were candid about their beliefs, and both ultimately demonstrated a willingness to try to put these personal beliefs aside and apply the law as provided by the judge. When No. 207 indicated that she “probably could” follow the judge’s instructions and No. 673 stated that she “would try” to follow the instructions, they both demonstrated that they understood the importance of applying the given law without partiality or prejudice. Under these circumstances, we cannot conclude that the trial court palpably erred in finding that prospective jurors No. 207 and No. 673 were capable of rendering a fair and impartial decision. See Proctor, supra. We therefore reject appellants’ first claim.

Appellants also assert that the trial court erred in sending the jury out to deliberate at 4:50 p.m. on a Friday. As the trial court noted, this argument requires us to assume, without any supporting evidence, that the jury abandoned its sworn duty to render a verdict based on the evidence simply because it was late in the afternoon. We are not willing to make such an assumption. Since appellants cannot point to anything of record to even suggest that the jury’s verdict was based on. fatigue or slothfulness, we must reject this claim of error. See Commonwealth v. Moore, 398 Pa. 198, 205-07, 157 A.2d 65, 70 (1959) (refusing to find error in sending jury to deliberate at 7:08- p.m. and allowing them to continue until 6:08 a.m. without “anything of record to indicate that the instant verdict was reached because of the jurors’ desire for rest and sleep or fatigue.”).

Affirmed.

      . Appellee Pécora Corporation is the sole remaining defendant who has not either settled or filed for bankruptcy.