author:
TAMILIA, Judge: BROSKY, Judge,
      KELLY, Judge,

text:
    535 A.2d 1172
    COMMONWEALTH of Pennsylvania v. Robert DOUGLASS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1987.
    Filed Jan. 11, 1988.

      Morton J. Earley, Indiana, for appellant.
    Pamela E. Miller, Assistant District Attorney, Indiana, for Com., appellee.
    Before BROSKY, TAMILIA and KELLY, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence entered after appellant pled guilty to nineteen (19) counts of various violations of the controlled substance laws. The cumulative sentence imposed totalled five (5) to twenty-five (25) years imprisonment to be followed by five (5) years probation, and payment of the costs of prosecution, $8,153.13, and to pay a fine of $6.

Appellant’s only argument on appeal is that the trial court abused its discretion by imposing an excessive sentence. Since this is a challenge to the discretionary aspects of his sentence, appellant must “set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of [the] sentence.” Pa.R.A.P. 2119(f). See Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Permission to amend the brief by submitting a post-submission statement concerning the discretionary aspects of sentencing was granted and on October 9, 1987, such a statement was properly filed. According to the statement, appellant believes the sentence is excessive because “the trial court did not fully consider his age, education, prior record, his likelihood of reforming, the fact that the victims were willing participants, no weapon was involved, he has the capacity to change and does not possess the criminal mentality to support a total sentence of five (5) to twenty-five (25) years incarceration.” Appellant’s brief (supplement) at p. 18.

As we have said in so many cases that they require no citation, sentencing is the domain of the trial judge and generally, that judgment will not be disturbed absent an abuse of discretion, Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985), and if the sentence is within the statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment. Parrish, supra. In this case, the appellant was charged and found guilty of nineteen (19) counts of various violations of the Controlled Substance, Drug, Device and Cosmetic Act. After his arrest, he intentionally left the Commonwealth in an attempt to avoid prosecution. He was returned from Alaska after lengthy extradition proceedings. In this case, the sentence was well within the minimum range of the sentencing guidelines and the sentencing judge stated his reasons for the sentence. The trial judge had before him a complete presentence report which he considered and he was, therefore, fully aware of the age and other social factors relating to the appellant. He was concerned on balance, however, with the numerous offenses and seriousness of selling drugs as a full-time occupation for over one year, primarily to young people. We can find no fault in the trial judge’s conclusion that this is more onerous than other offenses.

As to application of the sentencing guidelines, despite the recent invalidation of the guidelines by the Supreme Court, a sentence pursuant to the guidelines is not thereby invalidated if, in all other respects, it complies with the sentencing code. In this case, the specifically applicable section is 42 Pa.C.S.A. § 9725 Total confinement. All three subsections of that provision are implicated here and justify the sentence imposed. No abuse of discretion is evident and the sentence may not be disturbed. Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984).

Judgment of sentence affirmed.

Concurring Statement by BROSKY, J.

Concurring Opinion by KELLY, J.

BROSKY, Judge,

concurring:

I join in the Opinion by Tamilia, J., with the particular exception of footnote 1. To the extent that footnote suggests that the sentencing guidelines have an ongoing validity post-Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775, (1987), or that allegations of misapplication of the guidelines create a reviewable issue, I would respectfully disagree.

KELLY, Judge,

concurring:

Although I agree appellant is not entitled to relief, I write separately to explain why in the instant case I would deny allowance of appeal rather than grant allowance of appeal and address the merits as the majority has done.

As the majority notes, appellant’s sole contention on appeal is that the sentence imposed was excessive and that the trial court abused its discretion. This is a challenge to the discretionary aspects of sentence. 42 Pa.C.S.A. § 9781(b); 42 Pa.C.S.A. § 9781(c). Under Pennsylvania law, neither the defendant nor the Commonwealth may take an appeal as of right from the discretionary aspects of sentence. Rather, “[t]he defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code].” 42 Pa.C.S.A. § 9781(b). Our Supreme Court indicated in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), that three distinct steps must be taken to properly raise a challenge to the discretionary aspects of sentence: there must be a timely notice of appeal (see Pa.R.A.P. 902 & Note; Pa.R.A.P. 903); the challenge must be set forth in the statement of questions presented (see Pa.R.A.P. 2116(b)); and, the appellant must include in the brief, immediately preceding argument in support of the challenge, a separate, concise statement of the reasons for allowance of appeal under 42 Pa.C.S.A. § 9721(b) (see Pa.R.A.P. 2119(f)). 522 A.2d at 18-19.

In the instant case, a timely notice of appeal was filed and appellant’s challenge to the discretionary aspects of sentence was properly set forth in the statement of questions presented. However, appellant failed to include in his brief a separate, concise statement of the reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(b).

On September 3, 1987, appellant filed a post-argument motion for permission to correct the omission. See Pa.R. A.P. 2501(a). On October 1, 1987, appellant’s motion was granted and appellant was given fifteen (15) days to file a Pa.R.A.P. 2119(f) statement as a supplement to appellant’s brief. See Commonwealth v. Zeitlen, 366 Pa.Super. 78, 530 A.2d 900 (1987); id., 366 Pa.Superior Ct. 81-87, 530 A.2d at 902-05 (Kelly, J., joining and concurring); cf. Commonwealth v. Grove, 363 Pa.Super. 328, 348, 526 A.2d 369, 379 (1987) (per Kelly, J.).

On October 9, 1987, appellant filed the following as his Pa.R.A.P. 2119(f) statement:

Appellant, ROBERT A. DOUGLASS, JR., believes that the Superior Court should accept this Appeal on the discretionary aspects of the sentence imposed by the trial court because he believes it is excessive in light of the crimes to which he pled guilty; that the trial court did not fully consider his age, education, prior record, his likelihood of reforming, the fact that the victims were willing participants, no weapon was involved, he has the capacity to change and does not possess the criminal mentality to support a total sentence of five (5) to twenty-five (25) years incarceration.
Appellant believes that these are important reasons for this Court to consider the merits of his Appeal.

I would find that this statement fails to raise a substantial question as to the appropriateness of the sentence imposed considering the sentencing code as a whole. Appellant merely alleges in the most general and conclusory terms that the trial court failed to give adequate weight to various mitigating factors.

In order to raise a substantial question under 42 Pa.C. S.A. § 9781(b), the separate concise statement under Pa.R. A.P. 2119(f) must set forth factual allegations which establish that:

1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

See Commonwealth v. Easterling, 353 Pa.Super. 84, 509 A.2d 345 (1986); 42 Pa.C.S.A. § 9781(c). No other allegations are sufficient; the legislature has expressly provided that “[i]n all other cases the appellate court shall affirm the sentence imposed by the sentencing court.” 42 Pa.C. S.A. § 9781(c). (Emphasis added). There can be no “substantial question” raised regarding the appropriateness of the sentence imposed when the appellant fails to bring his allegations within the parameters of one of the three exclusive grounds for relief provided' by the statute.

It should be noted that the efficacy of reliance on this Court’s former dictum that “only in exceptional cases and for sufficient reasons may a court deviate from the guidelines,” Commonwealth v. Fluellen, 345 Pa.Super. 167, 171, 497 A.2d 1357, 1359 (1985), quoting Commonwealth v. Hutchinson, 343 Pa.Super. 596, 598, 495 A.2d 956, 958 (1985) (emphasis in original), was substantially eroded if not destroyed, sub silentio, by our Supreme Court’s decision in Commonwealth v. Tuladziecki, supra.

In Commonwealth v. Tuladziecki, supra, our Supreme Court reviewed at length the broad discretion vested in the sentencing court regarding the application of “general principles” espoused in the Sentencing Code, and the final selection of the sanction options. 522 A.2d at 20 & n. 1. Our Supreme Court then concluded:

It is apparent that the legislature has vested broad discretion in the trial court to impose a sentence appropriate to each case which comes before it. It is also apparent that the legislature has provided a thorough, though not exhaustive, outline of considerations to focus the court’s deliberations in choosing an appropriate sentence. It is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.

Commonwealth v. Tuladziecki, supra, 522 A.2d at 20. (Emphasis added).

In Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), our Supreme Court continued its erosion of the basis for our former dictum. The majority explained:

Most important, the court has no ‘duty’ to impose a sentence considered appropriate by the Commission. The guidelines must only be ‘considered’ and, to ensure that such consideration is more than mere fluff, the court must explain its reasons for departure from them. Viewed in this manner, the guidelines are essentially a sophisticated compilation and distillation of a vast range of factors affecting the sentencing process in the abstract, accomplished by persons of expertise representing a broad spectrum of interests. The legislature with the governor’s approval has deemed it proper that the findings of such a body, assembled to assist it in developing and overseeing a sound sentencing system, be given practical application in individual cases as well. We may say that in directing courts to consider these guidelines, just as they must consider a number of listed though non-exclusive factors in imposing probation, the legislature has done no more than direct that the courts take notice of the Commission’s work.

532 A.2d at 781.

The Sessoms opinion supports our conclusion in Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987) that:

... while the sentencing court is required to ‘consider’ the applicable guidelines, and while the reasons for any deviation from the applicable standard range of the guidelines must be in writing, the determination of whether the sentence is ‘not appropriate,’ ‘clearly unreasonable,’ or ‘unreasonable’ must be made with reference to the sentencing code as a whole, not solely with reference to the provisions of the sentencing guidelines. Commonwealth v. Tuladziecki, supra, 522 A.2d at 20; see also 42 Pa.C. S.A. 9781(b) and (c).

531 A.2d at 1150. (Emphasis in original). Thus, the refusal to impose (as opposed to consider) the applicable minimum sentence recommended by the guidelines, by itself, provides no basis to vacate sentence and raises no substantial question under 42 Pa.C.S.A. § 9781(b). See 42 Pa.C.S.A. § 9781(c)(2) and (3). Rather, to justify reversal under 42 Pa.C.S.A. §§ 9781(c)(2) or (3), the sentence must: 1) be inside the guidelines and be clearly unreasonable considering the sentencing code as a whole; or 2) be outside guidelines and be unreasonable, considering the sentencing code as a whole.

Moreover, the mandate of 42 Pa.C.S.A. § 9781(b) is not fulfilled by the mere incantation of the language of one of the subprovisions of 42 Pa.C.S.A. § 9781(c). Our former practice was struck down as having improperly enlarged an appellant’s right to appeal. Would a construction of 42 Pa.C.S.A. § 9781(b) and Pa.R.A.P. 2119(f) which merely required the incantation of conclusions of law or particular statutory language have any real or practical effect on the decision of whether to grant allowance of appeal? Assuredly not. Our Supreme Court explained:

Our insistence on separate presentation of these issues is more than mere formalism; important concerns of substance guide this decision. In addition to preserving the respective rights of both parties according to the jurisdictional scheme provided by the legislature, it furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court’s evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.

Commonwealth v. Tuladziecki, supra, 522 A.2d at 19-20. This purpose can only be effectuated if this Court requires that appellant’s concise statement contain specific allegations of fact, rather than mere conclusions of law. Moreover, because the determination as to whether appellant’s allegations are sufficient to raise the appearance of a substantial question must be separate and distinct from the review of the merits of the appeal, the factual allegations in the statement must be accepted as a true and complete statement of the relevant facts for this limited purpose. Only in this way can the requirement of a separate review of the statement rise above mere formalism and achieve its substantive purpose of limiting discretionary review on the merits to “exceptional case[s].”

Finally, I note that the allegation of facts which, if accepted as a true and complete statement of the pertinent facts, would establish the appearance grounds for vacating the sentence under 42 Pa.C.S.A. § 9781(c), does not entitle the appellant to the grant of allowance of appeal. The statute provides:

Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

42 Pa.C.S.A. § 9781(b). (Emphasis added). Thus, while the appearance of a substantial question under 42 Pa.C.S.A. § 9781(b) determines whether allowance of appeal may be granted, the sound discretion of this Court shall determine whether it will be granted.

In exercising this discretion we may, of course, look to the trial court opinion and/or the record. When the allegations set forth in the separate, concise statement of reasons for allowance of appeal are unsupported or contain material omissions apparent from the face of the recorrí, this Court may deny allowance of appeal despite the appearance of a substantial question based upon appellant’s unfounded or misleading allegations.

In light of the foregoing, I can see no basis to conclude that appellant has presented the appearance of a substantial question that the sentence imposed was inappropriate considering the sentencing code as a whole. Appellant has set forth only conclusory statements that mitigating factors were not given appropriate weight; no reference is made to the guidelines nor is specific reference made to any provisions of the Sentencing Code. Compare Darden, supra, 531 A.2d at 1147 (finding statement sufficient to establish the appearance of a substantial question). I would deny allowance of appeal. Nonetheless, I agree that the appeal is devoid of merit, and therefore, concur.

      . As to applying the guidelines in this case, they would not be made irrelevant by Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), as footnote 2 therein provides:
      2 This ruling is applicable to cases where the issue [of constitutionality] has been "properly preserved at all stages of adjudication up to and including any direct appeal." Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).
      We note that the Supreme Court, in Sessoms, did not bar the trial court from considering the guidelines in determining an appropriate sentence.

      . See Sessoms, supra, Concurring Opinion by Papadakos, J.

      . § 9725. Total confinement
      The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
      (1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
      (2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
      (3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

      . I note that I would construe the phrase “outside the guidelines” broadly so as to include both cases to which the guidelines apply but in which the court declines to follow the guidelines and to cases to which the guidelines do not apply. See 204 Pa.Code § 303.1(f).

      . I note that the express limitation set forth in 42 Pa.C.S.A. § 9781(c) and Commonwealth v. Easterling, supra, appears to be inconsistent with the express statement in 42 Pa.C.S.A. § 9721(b) that "[f]ailure to comply [with the contemporaneous writing requirement of § 9721(b) ] shall be grounds for vacating the sentence and resentencing defendant." Commonwealth v. Tilghman, 366 Pa.Super. 328, 332, 531 A.2d 441, 443 n. 2 (1987). Though it is not necessary to resolve this apparent conflict in the instant case, I note that allegations pertaining to the failure to include the contemporaneous statement required by 42 Pa.C.S.A. § 9721(b) may constitute an exception to the limitations set forth in 42 Pa.C.S.A. § 9781(c). Commonwealth v. Tilghman, supra. On the other hand, it may be that such conduct constitutes an erroneous application of the guidelines under 42 Pa.C. S.A. § 9781(c)(1) (see 204 Pa.Code § 303.1(h)), or it may be that failure to comply with the writing requirement of 42 Pa.C.S.A. § 9721(b) is simply not intended to be treated as a “discretionary aspect” sentence. 42 Pa.C.S.A. § 9781(b).

      . The effects of the Sessoms decision, of course, are much broader than merely undermining our former dictum. However, the effects vary depending upon the factual and procedural scenario presented and a discussion of this complicated subject is beyond the scope of the issue presented here. See Commonwealth v. Pickford, 370 Pa.Super. 444, 536 A.2d 1348 (1987) (Kelly, J., concurring and dissenting) (discussing effects of Sessoms generally).


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    535 A.2d 1177
    Linda A. THOMPSON, and Donald D. Thompson, her Husband, Appellants, v. The NASON HOSPITAL, and Edward D. Schultz, M.D., Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1987.
    Filed Jan. 11, 1988.
    Petition for Allowance of Appeal Granted June 7, 1988.

      Karen L. Steele, Altoona, for appellants.
    Karen E. Pfeffer, Holidaysburg, for Nason, appellee.
    Before CIRILLO, President Judge and JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This is an appeal from the order entered by the trial court granting summary judgment in favor of the Defendant-Appellee Nason Hospital (Nason). The Plaintiff-Appellants raise three issues for our consideration. For the reasons which follow, we are constrained to reverse the order of the lower court.

We begin our review of this case by recalling that summary judgment is controlled by Pa.R.C.P. 1035(b) which, in pertinent part, states:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Moreover, in reviewing a motion for summary judgment, the trial court must accept as true all well-pleaded facts in the non-moving party’s pleadings, as well as any admissions on file, giving the non-moving party the benefit of all reasonable inferences which may be drawn therefrom. Mattia v. Employers Mutual Companies, 294 Pa.Super. 577, 440 A.2d 616 (1982). Additionally, the record as a whole must be examined in a light most favorable to the party opposing the motion for summary judgment, with all doubts being resolved against the moving party. Held v. Neft, 352 Pa.Super. 195, 507 A.2d 839 (1986). Finally, in examining the record, the trial court is not to attempt to resolve conflicting contentions of fact or conflicting inferences that may be drawn from the facts. Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985).

With these considerations in mind, we turn to the record in this case. A review thereof reveals that the Plaintiff-Appellant Linda Thompson was involved in an automobile accident on March 16, 1978 and was transported by ambulance to the emergency room of Nason Hospital. Mrs. Thompson was admitted with head and leg injuries when Dr. Edward D. Schultz arrived at the hospital. Dr. Schultz was a physician who enjoyed staff privileges at Nason and with whom Mrs. Thompson had a prior physician-patient relationship. As will become clear, there was some question concerning the continuing nature of this relationship. On the date of the accident, Dr. Schultz entered the hospital through the emergency room department to begin making morning rounds. Although Dr.' Schultz only enjoyed staff privileges at Nason and was not “on call” in the emergency room, he was advised by a nurse that Mrs. Thompson had been involved in an automobile accident and was in the emergency room. Without being specifically requested by either of the Plaintiffs, Dr. Schultz and Dr. Jones, an ophthalmologist, appeared and began to treat Mrs. Thompson. Dr. Schultz subsequently admitted her to the intensive care unit of Nason and attended to her care over the duration of her hospitalization at Nason. It is alleged that Mrs. Thompson developed an intracerebral hematoma, resulting in permanent disability, during her hospitalization at Nason. Specifically, it is alleged that her injuries were the result of the negligence of Dr. Schultz as well as other purported agents, servants and/or employees of the hospital.

The first issue raised by the appellants concerns whether a question of material fact was presented by the record, as to whether Dr. Schultz was the ostensible agent of the Defendant-Appellee Nason Hospital, such that the trial court erred in granting summary judgment in Nason’s favor on this issue. The concept of ostensible agency was first recognized in our Commonwealth by this Court in Capan v. Divine Providence Hospital, 287 Pa.Super 364, 430 A.2d 647 (1980). There, pursuant to instructions by our Supreme Court, we determined that the trial court had erred in failing to instruct the jury on the Restatement (Second) of Torts § 429 (1965). We noted that the Section 429 approach to vicarious liability had become known as the ostensible agency theory. We further pointed out that Section 429 provided an exception to the general rule that an employer is not liable for torts committed by an independent contractor in his employ. Capan, 287 Pa.Superior Ct. at 367, 430 A.2d at 648. Section 429 states:

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.

In adopting the theory of ostensible agency, we noted that several jurisdictions had applied the concept to cases involving hospital liability for the negligence of independent contractor physicians. Capan, 287 Pa.Superior Ct. at 368, 430 A.2d at 649. We also noted two factors which contributed to the conclusion by other courts that, although a physician holds independent contractor status with respect to the hospital, he may nevertheless be an agent of the hospital with respect to the patient. First, there is a likelihood that patients will look to the institution rather than the individual physician for care due to the changing role of the hospital in today’s society. Second, “where the hospital ‘holds out’ the physician as its employee[,]” a justifiable finding is that there is an ostensible agency relationship between the hospital and the physician. Id. See also, Simmons v. St. Clair Hospital, 332 Pa.Super. 444, 481 A.2d 870 (1984). We recognized that a holding out occurs “when the hospital acts or omits to act in some way which leads the patient to a reasonable belief he is being treated by the hospital or one of its employees.” Capan, 287 Pa.Super. at 370, 430 A.2d at 649. (Citation omitted) (Emphasis in original).

Nason argues that neither of these elements, both of which are necessary to support a finding of ostensible agency, are disclosed by the record in this case. Based upon the earlier decisions of this court in Capan and Simmons, we reach a contrary conclusion. Mrs. Thompson was first admitted to the Appellee hospital through the emergency room. It was there that she came in contact with Dr. Schultz and the other physician who immediately began treating her. In individual affidavits, both Plaintiffs affirmed that when Mrs. Thompson was present in the emergency room neither of them requested that Dr. Schultz treat her. This evidence is uncontradicted and there appears to be no other evidence indicating by what authority the doctors began treating Mrs. Thompson. Thus, as stated in their affidavits, the Plaintiffs assumed that both doctors were employed by the hospital. The available evidence suggests Dr. Schultz treated Mrs. Thompson in the emergency room and subsequently arranged for her admission to the intensive care unit of Nason. Further, he also arranged for diagnostic tests and consultations during her hospitalization with a general surgeon who had vascular training, an ophthalmologist, and apparently, an orthopedic surgeon. In our opinion, because the Plaintiff sought attention from the hospital, and not directly from Dr. Schultz, this evidence raised an inference that the Plaintiff-Appellants looked to the institution for the care of Mrs. Thompson, and not solely to Dr. Schultz for the same purpose.

The Appellee hospital argues that there is no evidence that Dr. Schultz was “held out” as its employee. Nason does not contend that the Plaintiffs were informed of Dr. Schultz’ independent contractor status when Mrs. Thompson was in the emergency room, but rather, that the plaintiffs should have been aware of that status. In support of its position, Nason asserts that Dr. Schultz was Mrs. Thompson’s family physician and thus, it would be unreasonable for her to assume that he was employed by the hospital when Mrs. Thompson was treated in its emergency room. The evidence is clear that there was indeed a prior professional relationship between Mrs. Thompson and Dr. Schultz. Specifically, Mrs. Thompson testified that since 1966 she had continued to see either the Defendant Dr. Schultz or another Dr. Schultz, who shared an office, on various occasions. Additionally, Mrs. Thompson testified that both Dr. Schultz’ were her family doctors. In opposition to these facts the Plaintiff-Appellants point out, Dr. Schultz testified that he may have treated Mrs. Thompson after 1976, although he was not sure. Additionally, in her affidavit opposing the motion for summary judgment, Mrs. Thompson averred that while Defendant Dr. Schultz had treated her children for minor illnesses, she had not been under his care for many years prior to the date in question. We have noted, in that regard, that in her answers to interrogatories, Mrs. Thompson indicated that she had consulted with Dr. Schultz for medical care or treatment within a five year period immediately preceding her 1978 admission to Nason.

We recognize that under different facts, the appellee’s argument may indeed be meritorious. However, the facts revealed thus far, drawing all reasonable inferences therefrom in favor of the Plaintiff-Appellants, do not lead us to that conclusion. Quite simply, the statements concerning Dr. Schultz’ prior professional relationship with Mrs. Thompson are obviously conflicting and the facts far from clear. It has been held repeatedly that summary judgment should be granted only where there is not the slightest doubt as to the absence of a triable issue of fact. See, Chandler v. Johns-Manville Corp., 352 Pa.Super. 326, 507 A.2d 1253 (1986); Long John Silver’s, Inc. v. Fiore, 255 Pa.Super. 183, 386 A.2d 569 (1978).

Simmons v. St. Clair Memorial Hospital, supra, was a case which also involved the issue of ostensible agency in light of the nature of the on-going physician-patient relationship. In that case, the decedent was brought to the emergency room by his father. The hospital notified the on-call staff psychiatrist who admitted the decedent to the psychiatric unit; Following his discharge, the decedent continued to be treated by the same psychiatrist. During a subsequent admission to the psychiatric unit of the hospital, five months later, arranged by the decedent’s psychiatrist, the decedent committed suicide. We concluded that the evidence of record did raise a factual issue concerning the ostensible agency of the doctor. Id., 332 Pa.Superior Ct. at 453, 481 A.2d at 874. Our review of the record in the instant case convinces us that there is a question of material fact concerning Dr. Schultz’ ostensible agency relationship with Nason, despite any past and possible continuing physician-patient relationship between Mrs. Thompson and Dr. Schultz. Based upon the principles enunciated by our court in Capan and Simmons, we conclude that the trial court erred when it granted the motion for summary judgment on the ground that Dr. Schultz was not the ostensible agent of the Defendant-Appellee Nason.

Although our disposition of the first issue would, standing alone, mandate a reversal in this case, it is appropriate that we also address the second argument raised by the Appellants. This is a contention that summary judgment in favor of Nason was inappropriate since there was sufficient evidence of record raising an issue of material fact as to whether the hospital itself was negligent in supervising the exercise of staff privileges by Dr. Schultz. As the Plaintiff-Appellants candidly admit, this is a novel question in our Commonwealth. We are asked to adopt, in the absence of an actual agency relationship between a physician and a hospital, a theory of corporate liability with respect to the hospital. Several courts have done so. See, Bost v. Riley, 44 N.C.App. 638, 262 S.E.2d 391 (1980); Fridena v. Evans, 127 Ariz. 516, 622 P.2d 463 (1980); Felice v. St. Agnes Hospital, 65 App.Div.2d 388, 411 N.Y. S.2d 901 (1978); Purcell v. Zimbelman, 18 Ariz.App. 75, 500 P.2d 335 (1972); and Darling v. Charleston Community Memorial Hospital, 33 U1.2d 326, 211 N.E.2d 253 (1965), cert. denied in, 383 U.S. 946, 86 S.Ct. 1204, 16 L.Ed.2d 209. This concept of holding a hospital responsible where it failed to monitor and review medical services being provided within its facilities has been called the “emerging trend.” Fridena, 127 Ariz. at 519, 622 P.2d at 466.

The theory of corporate liability, or corporate negligence differs from the vicarious nature of respondeat superior, in that corporate negligence occurs when a duty owed directly by the hospital to the patient has been breached. Bost, supra. Underlying the theory is the concept that modern hospitals play a much more active role in furnishing patients medical treatments. It was perhaps best stated in Darling, supra, where the theory appears to have originated:

‘ “The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact. Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes [sic], as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of ‘hospital facilities’ expects that the hospital will attempt to cure him, not that its nurses or other employees will act on their own responsibility.” ’

Darling, at 332, 211 N.E.2d at 257, quoting, Fuld, J., in Bing v. Thunig, 2 N.Y.2d 656, 666, 163 N.Y.S.2d 3, 11, 143 N.E.2d 3, 8 (1957). We agree with the reasoning of the above cited cases and recognize that the fact that merely because certain doctors are not employees of a hospital does not mean such institution cannot be held liable for adverse effects of treatment or surgery approved by the doctors. This basis of liability is distinct from the theory of respondeat superior.

However, we deem it important to point out that for a hospital to be charged with negligence for failing to supervise the quality of care or competence of its staff, it is necessary to show that the hospital had actual or constructive knowledge of the procedures utilized. See, Fridena, 127 Ariz. at 519, 622 P.2d at 466; Purcell, 18 Ariz.App. at 83, 500 P.2d at 343. Moreover, the negligence of the hospital must have been a substantial factor in bringing about the harm to the plaintiff. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).

The Defendant-Appellee argues, assuming we adopt the reasoning of the court in Darling, supra, that the staff of Nason acted reasonably and appropriately at all times. We note that when the trial court granted summary judgment in favor of the Defendant-Appellee, it did not address the Appellants’ argument with respect to the issue of corporate liability. We do not fault the trial court’s action since, until today, this theory of liability was not recognized in Pennsylvania. At this juncture of the litigation, however, we need not reach a final decision on the question of whether or not the staff at Nason acted reasonably and appropriately at all times. It will suffice at this stage to merely note that a thorough review of the record of this case convinces us that there is a sufficient question of material fact presented as to whether Nason was negligent in supervising the quality of the medical care which Mrs. Thompson received, such that the trial court could not have properly granted summary judgment on the issue of corporate liability.

Finally, we address the Appellants’ third contention, that the trial court erred in granting summary judgment on the ground that there was no genuine issue as to Dr. Schultz’ actual agency relationship with Nason. The Appellants’ position, in that regard, was based entirely upon written bylaws, rules and regulations governing the Nason medical staff. While we do not perceive error in the lower court’s decision on that point, based on the present record, our reversal of the order of summary judgment on the other grounds discussed above, makes it unnecessary that we discuss this issue in any detail. Because the case will proceed to trial, it is appropriate that the lower court decide, during the course of the later stages of this litigation, whether sufficient evidence may be established by the Appellants, on their actual agency theory, to justify its presentation to the finder of fact, as a basis for a recovery by the Appellants. See, Breslin by Breslin v. Ridarelli, 308 Pa. Super. 179, 454 A.2d 80 (1982).

The order of the lower court granting summary judgment is reversed. The case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Dr. Schultz remains a defendant in the action below; however, he is not a party to this appeal.


author: HOFFMAN, Judge: CIRILLO, President Judge,

text:
      535 A.2d 1182
    COMMONWEALTH of Pennsylvania v. Clarence Lynn BILLETT, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 7, 1986.
    Filed Jan. 13, 1988.

      Lorinda L. Hinch, Assistant Public Defender, Mercer, for appellant.
    Samuel J. Orr, IV, District Attorney, Mercer, for Com., appellee.
    Before CIRILLO, President Judge, and JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for receiving stolen property. Appellant contends that (1) the sentencing court erred in including a prior juvenile adjudication of delinquency in its computation of his prior record score for sentencing purposes, and (2) his sentence was excessive. For the reasons that follow, we disallow the appeal in part, and affirm the judgment of sentence.

Appellant entered a plea of guilty to one count of receiving stolen property, 18 Pa.C.S.A. § 3925, a felony of the third degree. Under the Sentencing Guidelines, 204 Pa. Code §§ 303.1-.9, reprinted following 42 Pa.C.S.A. § 9721, this offense carries an offense gravity score of five. See 204 Pa.Code § 303.8. At the time of the instant offense, appellant’s prior criminal record included convictions for three felonies and one juvenile adjudication of delinquency for assault with intent to rape. Based on that record, appellant was assigned a prior record score of four. N.T. September 25, 1985 at 9. See 204 Pa.Code § 303.7. He was sentenced to a term of two-to-five-years incarceration, a sentence within the minimum range of the Sentencing Guidelines for an offense gravity score of five and a prior record score of four. See 204 Pa.Code § 303.9(b). His motion to modify his sentence was denied, and this appeal followed.

Both contentions raised in this appeal concern discretionary aspects of sentencing. The requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) therefore apply. Appellant has failed to include in his brief “a concise statement of the reasons relied upon for allowance of appeal” as required by Rule 2119(f) and Tuladziecki. In Commonwealth v. Krum, 367 Pa.Superior Ct. 511, 533 A.2d 134 (1987), however, this Court, sitting en banc, recently held that an appellant’s failure to comply with Rule 2119(f) and Tuladziecki, if not objected to by the appellee, is a waivable procedural violation. Id., 367 Pa.Superior Ct. at 520, 533 A.2d at 138. Here, the Commonwealth has not objected to the Rule 2119(f) defect in appellant’s brief. Accordingly, the Commonwealth has waived any claim based on the absence of such a statement. We must therefore proceed to examine each of appellant’s sentencing claims and “determine, in [our] own discretion, whether there is a substantial issue requiring [us] to review the discretionary aspects of the sentence imposed by the trial court.” Commonwealth v. Krum, supra.

Appellant first contends that § 303.7(b) of the Sentencing Guidelines is contrary to the legislation authorizing the creation of the guidelines, see 42 Pa.C.S.A. § 2154(2), because it requires a sentencing court to consider certain juvenile adjudications of delinquency in computing a defendant’s prior record score. In Commonwealth v. Tilghman, 366 Pa.Superior Ct. 328, 531 A.2d 441 (1987) (en banc), our Court recently concluded that this type of claim presents a substantial question that the sentence imposed is inappropriate. Id., 366 Pa.Superior Ct. at 333-334, 531 A.2d at 443-44. Accordingly, we grant the petition for allowance of appeal as to this issue and turn to the merits of the claim.

In computing a defendant’s prior record score, the Sentencing Guidelines direct a sentencing court to score, inter alia, “[a]ll prior juvenile adjudications of delinquency where there was an express finding that the adjudication was based on the commission of a felony or one of the weapons misdemeanors listed in subsection (a)(3) where the adjudication occurred on or after the defendant’s 14th birthday.” 204 Pa.Code § 303.7(b)(l)(ii). The Legislature, in the act authorizing the creation of the Pennsylvania Commission on Sentencing, 42 Pa.C.S.A. §§ 2151-2155 (Purdon 1981) (amended 1986), directed it to adopt sentencing guidelines which “shall: ... [s]pecify a range of sentences of increased severity for defendants previously convicted of a felony or felonies or convicted of a crime involving the use of a deadly weapon.” Id. § 2154(2). Appellant argues that because the Commission’s power to adopt sentencing guidelines “results only from legislative delegation, the limits of such power must be strictly construed.” Brief for Appellant at 8. Accordingly, because § 2154(2) does not expressly direct the Commission to specify a sentencing range of increased severity for defendants who were previously adjudicated delinquent, appellant maintains that 204 Pa.Code § 303.7(b) contravenes the legislative authorization contained in § 2154(2) and is thus invalid. We must disagree.

In Commonwealth v. Tilghman, supra, our Court was faced with a similar question regarding the interpretation of 42 Pa.C.S.A. § 2154(2). In Tilghman, appellant, the Commonwealth, argued that “§ 2154(2) merely sets forth the minimum criteria that the Sentencing Commission was required to consider and did not constrain the Commission to include consideration of only the specified criteria.” 366 Pa.Superior Ct. at 335, 531 A.2d at 445. The Tilghman court rejected the Commonwealth’s argument, holding that “We ... find no merit in the Commonwealth’s contention that § 2154(2) merely set forth the minimum criteria that the Sentencing Commission was required to consider.” Id., 366 Pa.Superior Ct. at 338, 531 A.2d at 446. Instead, the court accepted the exact argument that appellant makes here:

the Commission did not have the power to specify a range of sentences of increased severity based on criteria not specified in § 2154(2). In other words, the Sentencing Commission lacked the power to adopt guidelines in which the prior record score was computed on the basis of anything other than prior convictions of felonies or convictions of a crime involving the use of a deadly weapon.

Id., 366 Pa.Superior Ct. at 336, 531 A.2d at 445.

If Tilghman were the only appellate decision on the scope of legislative authority delegated by § 2154, we would be obliged to accept appellant’s argument. Since Tilghman was decided, however, our Supreme Court has ruled on the proper interpretation of § 2154 and reached a different conclusion. In Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987), appellant, the Commonwealth, argued that § 2154, “though a mandatory direction, is not an exclusive direction.” Id., 516 Pa. at 303, 532 A.2d at 405. Accordingly, the Commonwealth continued, the Commission, in the exercise of its general authority, had the power to determine which conditions other than those specified in § 2154(2) might also justify a sentence of increased severity-

The Samuels court, like the Tilghman court, was therefore faced with the question whether the enhancement provision contained in § 2154(2) was exclusive, or merely set forth the minimum circumstances in which the Commission was required to provide for an increased sentence. The Samuels court adopted the Commonwealth’s argument, holding that

The General Assembly gave the Commission a broad grant of authority to analyze the impact that various factors should have on the sentencing decision and to promulgate a set of recommended sentences in accordance with its analysis. Certain factors (prior felonies, prior offenses of any grade involving deadly weapons) were so important to the legislature that it required the Commission to provide for them. This statement of an affirmative duty of inclusion of certain items carries no prohibition, express or implied, on the authority to include others.

516 Pa. at 303-304, 532 A.2d at 405 (emphasis supplied). Although Samuels and Tilghman are factually distinguishable — Samuels involved an enhancement based on convictions for non-weapons misdemeanors, while Tilghman involved an enhancement based on juvenile adjudications— both cases involved not the legitimacy of the specific basis for the enhancement, but the general authority provided the Commission under the legislation authorizing the creation of the guidelines.

We, of course, are bound by the Samuels court’s holding that § 2154(2) does not specify the exclusive factors that the Sentencing Commission may rely upon to enhance a sentence. Accordingly, despite the specific holding by our Court in Tilghman, we cannot conclude that the Sentencing Commission did not have authority to provide for enhanced sentences based upon prior juvenile adjudications of delinquency. We therefore must hold that the sentencing court in the instant case did not err in including a prior juvenile adjudication in computing appellant’s prior record score.

Appellant next contends that his sentence was excessive. Appellant argues that the court placed undue emphasis on his prior record and failed to place adequate emphasis on the sentencing testimony by appellant and his wife regarding his “turning his life around” since the offense was committed. Appellant concedes that the court was aware of his extensive prior record, and that the instant criminal episode occurred but three months after his release from prison for a prior conviction. Moreover, appellant does not allege that the court was unaware of the supposed “turnaround” in his life, or that the court failed to consider other relevant factors. Instead, appellant’s claim is simply that the court’s conclusion based on all of these factors— i.e., the actual sentence imposed — was inappropriate. This type of claim, which asks us to substitute our judgment for that of the sentencing court, does not present a substantial question that the sentence imposed was inappropriate under the Sentencing Code as a whole. See Commonwealth v. Tilghman, supra, 366 Pa.Superior Ct. at 332, 531 A.2d at 443-44 & n. 2. Accordingly, we must disallow the petition for allowance of appeal with regard to this issue.

For the foregoing reasons, we disallow the appeal in part, and affirm the judgment of sentence.

Appeal disallowed in part, judgment of sentence affirmed. Jurisdiction is relinquished.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge,

dissenting:

I respectfully dissent. I disagree with the majority’s decision to reach the merits of this appeal. Billett challenges discretionary aspects of the sentence imposed. Where a purely discretionary aspect of sentencing is being challenged, the appellant müst include in his brief a “concise statement of the reasons relied upon for allowance of appeal.” 42 Pa.C.S. § 9781(b). This statement must show that there exists a “substantial question that the sentence imposed is not appropriate under [the Sentencing Code].” Id.; Pa.R.A.P. 2119(f); see also Commonwealth v. Tuladzeicki, 513 Pa. 508, 522 A.2d 17 (1987).

I disagree with the majority decision in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc), which held that an appellant’s failure to comply with Pa.R.A.P. 2119(f) and Tuladziecki, if not objected to by the appellee, is a waivable procedural violation. Compliance with the rule is necessary in order to invoke this court’s jurisdiction. The Krum majority, in my opinion, has misinterpreted Tuladziecki. See Krum, 367 Pa.Super. at 521-522, 533 A.2d at 139 (Brosky, J., dissenting); see also Commonwealth v. Tilghman, 366 Pa.Super. 328, 531 A.2d 441 (1987) (en banc) (Cirillo, P.J., concurring). In failing to include a Rule 2119(f) statement in his brief, Billett has failed to properly invoke this court’s jurisdiction. The proper course, under the supreme court’s ruling in Tuladziecki, is to quash this appeal.

      . Without including the juvenile adjudication, appellant’s prior record score would have been three. The minimum range for an offense gravity score of five and a prior record score of three is eight-to-twelve months. 204 Pa.Code § 303.9. Thus, his minimum sentence was considerably greater than that recommended for a prior record score of three.

      . We note that two recent en banc decisions of this Court have determined that the question whether juvenile adjudications may properly be included in computing prior record scores implicates a discretionary aspect of sentencing and not sentencing legality. See Commonwealth v. Krum, 367 Pa.Superior Ct. 511, 533 A.2d 134 (1987); Commonwealth v. Tilghman, 366 Pa.Superior Ct. 328, 531 A.2d 441 (1987).

      . We note that appellant has not challenged the constitutionality of the Sentencing Guidelines. Accordingly, Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) is inapplicable. Id., 516 Pa. at 380 n. 2, 532 A.2d at 782 n. 2.


author: GRILLO, President Judge:

text:
    535 A.2d 1186
    COMMONWEALTH of Pennsylvania v. Edwin GARCIA, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1987.
    Filed Jan. 20, 1988.

      Harold Diamond, Philadelphia, for appellant.
    Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CHULLO, President Judge, and BROSKY and BECK, JJ.
   GRILLO, President Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County against appellant, Edwin Garcia. Garcia was convicted of first-degree murder and possessing an instrument of crime. We affirm.

Between 10:30 p.m. and 11:00 p.m. on the evening of March 5, 1986, Edwin Garcia rode his bicycle to the apartment of his erstwhile girlfriend, Lucy Nieves. Upon arriving at the apartment complex, Garcia was met by Luis Nieves, Ms. Nieves’s brother, who indicated that his sister was out for the evening. Mr. Nieves asked Garcia to leave; however he ignored this request and ungraciously decided to remain and watch television pending her arrival. At approximately 1:00 a.m. Ms. Nieves returned from her engagement. She asked her beau, Oliver Mangold, to wait outside while she spoke with her brother. Upon entering her apartment, Ms. Nieves was startled to find Mr. Garcia in the living room with her brother. She immediately demanded that Garcia leave, indicating that her date would be extremely indignant to find him in the apartment. Acceding to his estranged paramour’s request, Garcia prepared to leave, but first went into the kitchen to retrieve a knife, allegedly for the repair of his bicycle. He then descended the stairs outside the apartment with his bicycle in tow. As appellant reached the bottom of the steps and opened the door, he immediately noticed Mangold positioned behind the door. As Garcia exited the building, Mangold commented: “Why don’t you go home to your momma, little boy?” Mangold then placed his open hand in Garcia’s face and pushed him backwards, causing him to fall to the ground. A fight ensued in the parking lot of the apartment complex with the two men eventually wrestling each other on top of Lucy Nieves's automobile. In the midst of the altercation, Garcia withdrew the kitchen knife from his pocket and repeatedly imbedded its blade into the victim’s back and side. The stab wounds proved to be immediately fatal. Police were summoned to the scene and Garcia was ultimately arrested and detained pending trial.

Garcia was tried by Judge Juanita Kidd Stout, sitting without a jury, in the Court of Common Pleas of Philadelphia County. He was found guilty of murder in the first degree, 18 Pa.C.S. § 2502, and possession of an instrument of crime, 18 Pa.C.S. § 907. New counsel entered an appearance on Garcia’s behalf and filed timely post-trial motions. The court considered and denied these motions. Thereafter, appellant was sentenced to life imprisonment for the murder charge and one concurrent term of two and one half to five years for the weapons offense. This appeal followed.

Garcia advances the following four issues for our review: (1) whether the Commonwealth proved, beyond a reasonable doubt, that his actions were not justified; (2) whether the Commonwealth proved, beyond a reasonable doubt, that he acted with premeditation; (3) whether trial counsel was ineffective in not arguing that Garcia was guilty only of voluntary manslaughter; and (4) whether Garcia knowingly and intelligently waived his constitutional right to a jury trial.

Garcia’s first two issues controvert the findings of fact and veracity of the witnesses who testified at his trial. Essentially he reiterates, from an adversarial viewpoint, the evidence proffered at trial and the conclusions that should have been drawn from that evidence. We note, however, that Garcia’s brief does not set forth any specific assignment of legal error in the trial court’s determination. It is well settled that it is within the province of the trial judge, sitting without a jury, to judge credibility of the witnesses and weigh their testimony. Allegheny County v. Monzo, 509 Pa. 26, 500 A.2d 1096 (1985). Consequently, credibility determinations are generally not subject to review. Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982). Only when the weight of the evidence is so contrary as to shock one’s sense of justice will a verdict be overturned as against the weight of the evidence. Commonwealth v. Jensch, 322 Pa.Super. 304, 469 A.2d 632 (1983).

The trial court dutifully heard all the evidence presented by both parties, and rendered a determination based upon its observations. In so doing, the court properly accepted various portions of the evidence as convincing, while at the same time rejecting implausible and unconvincing testimony. The court concluded, as a matter of sound factual determination, that Garcia’s resort to deadly force was unjustified, premeditated, and malicious, warranting a conviction of first-degree murder. We will not overturn the verdict as Garcia requests, by second-guessing the learned trial judge’s perceptions of the witnesses’ veracity and believability. Accordingly, we find Garcia’s first two allegations of error to be meritless.

Garcia next contends that his trial counsel was constitutionally ineffective for relying solely on a theory of self-defense in his representation. He emphatically maintains that trial counsel should have presented arguments in favor of voluntary manslaughter as an alternative theory to finding him guilty of first-degree murder.

It is well settled that when confronted with a claim of ineffective assistance of counsel, a reviewing court must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit and, if so, whether the course chosen by counsel had some reasonable basis designed to serve the interest of his client. Commonwealth v. McBee, 513 Pa. 255, 520 A.2d 10 (1986); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

In Commonwealth v. Nauman, 345 Pa.Super. 457, 498 A.2d 913 (1985), we stated:

Before a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it. We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests. Thus, counsel’s assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis designated to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record.

345 Pa.Super. at 462, 498 A.2d at 915 (citations omitted). In addition to showing that the issue underlying the charge of ineffectiveness is of arguable merit and that there was no reasonable basis for the ineffective performance, a defendant claiming ineffectiveness of counsel must demonstrate that he was prejudiced by the ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), aff'g 345 Pa.Super. 324, 498 A.2d 423 (1985) (en banc); McBee, 513 Pa. at 262, 520 A.2d at 13. The law presumes that counsel was effective; therefore the burden of establishing ineffectiveness rests squarely upon the appellant. Commonwealth v. Ellis, 354 Pa.Super. 11, 510 A.2d 1253 (1986).

Voluntary manslaughter under our Criminal Code is the intentional killing of another, without malice aforethought, but in a sudden heat of passion caused by adequate legal provocation, before sufficient time has elapsed for the “blood to cool” and reason to reassume control of the actor’s conduct. Commonwealth v. White, 492 Pa. 489, 424 A.2d 1296 (1981); Commonwealth v. Fisher, 342 Pa.Super. 533, 493 A.2d 719 (1985); 18 Pa.C.S. § 2503. In order to successfully militate in favor of a voluntary manslaughter verdict, evidence must indicate that the slaying occurred as a result of passion generated by legal provocation or as the result of a mistaken belief in existence at the moment of the crime. Consequently, absence of malice is the critical determinant of culpability, and the jury must be satisfied that the death was not a consequence of the actor’s hardness of heart or careless disregard for human life. Commonwealth v. Cain, 484 Pa. 240, 398 A.2d 1359 (1979); Fisher, supra.

Our examination of the trial record and appellate briefs in this case leads us to the inescapable conclusion that Garcia’s trial counsel was effectively precluded from presenting a “heat of passion” argument in support of a voluntary manslaughter verdict. Such an argument would have contradicted Garcia’s own testimony surrounding the events as they unfolded on the morning of March 6, 1986. Garcia indicated that the attack was unprovoked, and that he harbored no emotional turmoil about Mangold’s presence.

It is clear to us that trial counsel competently chose a defense strategy, albeit an unsuccessful one, with the paramount goal being complete acquittal of all charges. We cannot find this to be inefficacious. Trial counsel pursued a trial strategy that painted Garcia as an innocent party, victimized by a man much stronger and older than himself. Indeed, it is well settled that a strategy aspiring to achieve an acquittal, rather than a compromise verdict of manslaughter, is considered effective assistance of counsel. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979); Commonwealth v. McGrogan, 449 Pa. 584, 297 A.2d 456 (1972). Accordingly, we find appellant’s ineffective assistance of counsel claim to be without merit.

Garcia’s last contention surrounds the propriety of his waiver of his constitutional right to a jury trial. Specifically, he claims that since his native language is not English, he was unable to undertake a knowing and intelligent waiver of his constitutional rights. Appellant proclaims: “As a matter of pride [I] would not admit to the trial court that [I] could not fully understand what occurred during the jury-waiver colloquy.” We find this claim to be untenable.

Garcia’s waiver colloquy was conducted through a court interpreter. Thus, the allegation that he was unable to understand the nature of his decision because of the supposed “language barrier” is utterly devoid of logic. Additionally, we note that Garcia apparently testified at trial without the aid of an interpreter. As the Commonwealth has noted, that testimony features a fine command of the English language, including expressions in colloquial idiom. In light of the foregoing, we conclude that Garcia knowingly and intelligently waived his constitutional right to be tried before a jury.

Judgment of sentence affirmed.


author: POPOVICH, Judge:

text:
    535 A.2d 1189
    COMMONWEALTH of Pennsylvania v. Andre CRADDOCK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1987.
    Filed Jan. 20, 1988.

      Steven A. Morley, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

This is an appeal from an Order of the Court of Common Pleas, Philadelphia County, dismissing, without a hearing, appellant’s petition under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq. We affirm.

Petitioner, Andre Craddock, was charged with aggravated assault, simple assault, possession of instruments of crime, carrying firearms on a public street, criminal conspiracy, robbery, and recklessly endangering another person. Trial commenced on June 30, 1980. During jury deliberations, petitioner left the court room and did not return. Petitioner was found guilty, in absentia, of all charges. The trial court issued a warrant for Craddock’s arrest and deferred sentencing. On September 11, 1980, petitioner was sentenced in absentia. Counsel for petitioner was present, but no appeal was taken.

Meanwhile, in August 1980, petitioner was arrested in California. In June, 1981, the Commonwealth learned petitioner was imprisoned in the Federal Correctional Facility in Leavenworth, Kansas.

In August 1985, Craddock was released into Pennsylvania’s custody, and petitioner filed a pro se PCHA petition. Counsel was appointed and filed an amended petition. The Commonwealth responded with a Motion to Dismiss, which the PCHA Court granted. This appeal followed.

Petitioner, Andre Craddock, argues that sentencing in absentia was in violation of both court rules and the Pennsylvania and Federal Constitutions, and that trial counsel was ineffective for not objecting to the sentencing procedure. Petitioner alleges the PCHA Court erred in dismissing his petition based upon waiver.

The Post Conviction Hearing Act provides that in order to be eligible for relief under the Act, a person must prove that objection to the error resulting in his conviction and sentence has not been waived. 42 Pa.C.S.A. § 9543(4). And, even if a petition alleges facts constituting grounds for relief under the Act, an evidentiary hearing may be denied if the court finds the issues raised were waived by the petitioner. Commonwealth v. Johnson, 431 Pa. 522, 246 A.2d 345 (1968); Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (1975). The Act further provides that an issue is waived if: (1) the petitioner knowingly and understandingly failed to raise the issue, and it could have been raised on appeal; (2) the petitioner is unable to prove the existence of the extraordinary circumstances to justify his failure to raise the issue. 42 Pa.C.S.A. § 9544(b). There is a rebuttable presumption that a failure to appeal a ruling or raise an issue is knowing and understanding failure. 42 Pa.C.S.A. § 9544(c).

The general rule is that in a criminal case, voluntary fugitive status disentitles a defendant to call upon the resources of the court for the disposition of a defendant’s legal claims. Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); Commonwealth v. Barron, 237 Pa.Super. 369, 352 A.2d 84 (1975). Escape of a convicted defendant may properly be considered rejection of the means afforded defendant for challenging his conviction and imprisonment. Thus, by choosing fugitive status, defendant forfeits his right to have his claim considered. Commonwealth v. Passaro, 504 Pa. 611, 615-616, 476 A.2d 346, 348 (1984). The fact that defendant is subsequently recaptured provides no basis for disturbing the order dismissing his appeal, as defendant who elects to escape from custody waives his right to appellate review. Passaro, supra, 504 Pa. 611 at 616, 476 A.2d 346 at 349. So, in spite of the fact that petitioner is within the control of the court at the time of this appeal, his voluntary fugitive status at the time for direct appeal acts as a knowing and understanding waiver of his appellate rights. In addition, even if petitioner’s counsel had appealed his conviction or sentence on any grounds, the court could have dismissed his appeal due to his fugitive status, and, upon petitioner’s return to the custody of the Commonwealth, the court could have continued to refuse to consider his appeal. See Commonwealth v. Boyd, 244 Pa.Super. 98, 366 A.2d 934 (1976) (defendant, by becoming fugitive, lost right of review of post-trial motions, and trial court did not abuse its discretion in refusing to consider motions upon his return to jurisdiction).

The second claim of the petitioner attributes the trial court with error in sentencing him in absentia, as violative of established Rules of Criminal Procedure and the United States and Pennsylvania Constitutions, and labels prior counsel inept for neglecting to object to absence from such proceedings.

, We find both contentions to be meritless on the basis of procedural and constitutional precedent. For example, the ability to conduct criminal matters in the defendant’s absence has been codified at Pa.R.Crim.P. 1117(a), which provides:

(a) The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant’s absence without cause shall not preclude proceeding with the trial including the return of the verdict.

Therefore, based on the preceding, the petitioner’s abstention from the sentencing, like the trial, did not impair the court below from carrying on with the case. See Commonwealth v. Ragoli, 362 Pa.Super. 390, 400, 524 A.2d 933, 938 (1987).

There is no reason, from the record before this Court, to believe that the petitioner was ignorant of the criminal charges pending against him or the consequences flowing from his voluntary removal from this jurisdiction.

It is true that a leading principle pervading the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner. See Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892); Brinlee v. Crisp, 608 F.2d 839, 848 (10th Cir.1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980); see also Commonwealth v. Hoss, 445 Pa. 98, 114, 283 A.2d 58, 67 (1971). However, such a right can be relinquished, e.g., it can be waived by one’s words or actions. See Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970); Badger v. Cardwell, 587 F.2d 968 (9th Cir.1978); Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976).

Instantly, we have no reservations in concluding that the petitioner’s removal from this jurisdiction was a voluntary one, and, as such, entitled the court below to conduct his trial and impose sentence upon him. See Rule 1117; see generally Commonwealth v. McLaurin, 292 Pa.Super. 392, 437 A.2d 440 (1981).

It must be remembered that the requirement that the defendant be present at every stage of the judicial process is a double-edged sword. On the one hand, an error of constitutional dimension occurs when there appears no record evidence of a voluntary waiver of a defendant’s presence at the various stages of the judicial process — the remedy is a proceeding with the accused present. See McLaurin, supra. The converse also holds true, i.e., the defendant’s failure to appear at the same proceedings can be construed as voluntary by his actions. See Lewis, supra. And, when this occurs, one’s protestations, be they lodged against the jurist or counsel for proceeding in his absence, will be ineffectual to hurdle the waiver endemic to the volitional abstention from the trial and/or sentencing by the accused.

Accordingly, the petitioner’s failure to establish, by a preponderance of the evidence, that his abstention was anything other than intentional and of his own free will renders meritless his allegations of trial court error and counsel’s incompetence. ^

For the reasons stated, the order of the Post-Conviction Hearing Act court denying the petitioner’s requested relief is affirmed.

Order affirmed.


author: BROSKY, Judge:

text:
    535 A.2d 1192
    CHAAPEL HOLLOW HUNTING CLUB, INCORPORATED, Appellant, v. HEPBURN BAPTIST CHURCH OF HEPBURN TOWNSHIP.
    Superior Court of Pennsylvania.
    Submitted Nov. 23, 1987.
    Filed Jan. 21, 1988.
    James R. Protasio, Williamsport, for appellant.

      Malcolm S. Mussina, Williamsport, for appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   BROSKY, Judge:

This is an appeal from the Order entered by the trial court denying appellant’s Post Trial Motions in this action to quiet title.

Appellant raises three questions for our consideration: (1) whether the trial court erred in failing to apply a reasonable time standard in determining the existence of a time limitation within which to comply with a condition subsequent; (2) whether the trial court erred in deciding that the drafting of plans for an addition to appellee’s building is sufficient to comply with the requirements of the condition subsequent contained in the deeds; and (3) whether the trial court erred in interpreting the Grantor’s intent and in determining that the present use and future planned use of the land is consistent with that intent.

Upon consideration of the trial court opinion and briefs by counsel, we hereby affirm the order in question.

On May 27, 1957, Samuel H. Hoff et ux. conveyed a 2.5 acre parcel of land to appellee. The deed of conveyance contained the following language:

This deed is made expressly upon the condition that the premises herein granted are to be used exclusively for a site for the erection and maintenance of a church building for the Hepburn Baptist Church of Hepburn Township, and whenever the same shall cease to be used for such purposes this deed shall become void and the title to the premises shall revert to the grantors herein, their heirs and assigns.

In 1957, when appellee acquired title to the parcel, a church facility had existed for approximately 100 years on an adjoining piece of real estate. Appellee had sold an adjoining lot three years earlier to raise funds to remodel the church basement. Shortly after the acquisition of the 2.5 acres, appellee started a building fund to enlarge and improve the existing church building. No building has been constructed on the land acquired from Samuel Hoff in the 30 years since the conveyance.

On August 1, 1963 a tract of land containing over 175 acres was conveyed by Samuel and Faye Hoff to Werner J. Illing. This conveyance included the 2.5 acres previously conveyed to appellee. Werner J. Illing and Christable A. Illing, his wife, subsequently conveyed the same 175 acre parcel of land to appellant. The parties have stipulated that the conveyances of the 175 acre parcel from the Hoffs to the Illings to appellant, have also passed the reversionary interest in the 2.5 acre piece of realty to appellant.

Appellee has constructed a parking lot on the subject parcel and has also developed plans for the erection of an addition, which would require the use of the parcel in question to comply with the existing zoning ordinances of the township.

Appellant’s first contention questions whether a time limitation should have been imposed in which appellee had to have complied with the condition subsequent in the deed transfer. The second and third issues raised by appellant questions whether appellee’s actions were sufficient to comply with the condition subsequent. Because these last two contentions are so closely related, they may be addressed together.

It is appellant’s position that, because the deed was silent as to time, the court should have imposed “a reasonable time” limit for appellee to comply. However, as noted by the trial court, the deed was not silent. It clearly stated that “whenever the same shall cease to be used for such purposes, this deed shall become void.” Case law in this area is quite old. Age, however, has never been the yardstick by which we measure the law’s reliability. If a law, regardless of its age, has never given the judiciary of this Commonwealth cause to alter it, we see no reason not to continue to rely upon it even now. In fact, viewing old law in terms of wisdom which has withstood the test of time, we see nothing wrong with using it as a basis for our decision today. The general rule with regard to time limitations on conditions subsequent was set forth more than 160 years ago in Hamilton v. Elliott, 5 Serg. & Rowle 375, 382-383, 384 (1819):

... where the condition is to be performed to the [grant- or] himself, and there is no limitation as to time but only as to person, the [grantee] has his whole lifetime to perform it. The reason is that conditions, not being favoured by the law, are taken strictly; and therefore a literal compliance with their terms is all that is required.
From a view of all the cases, the rule seems to be that where a prompt performance of the condition is necessary to give the [grantor] the whole benefit contemplated to be secured to him; or where its immediate fruition formed his motive for entering into the agreement, the [grantee] shall not have his lifetime for the performance, but only a reasonable time.

Therefore, it is clear that, in the instant case, prompt performance was not necessary. As pointed out by the trial court, the grantor here (Samuel Hoff) intended no benefit for himself. Nor did his motives require that prompt action be taken. Thus, we agree with the trial court that it would be improper to imply a time limitation in the deed which may be inconsistent with the grantor’s intent.

We must now determine whether appellee’s actions constituted sufficient compliance with the condition subsequent contained in the deed, to prevent reverter. The reversionary clause states that the land is to be used as a “site for the erection and maintenance of a church building”. Even though the use of the phrase “erection and maintenance” contemplates the actual construction of a building, West Bradford Township v. MacMichael, 21 Pa. Commonwealth 640, 347 A.2d 345 (1975), we still find sufficient compliance with the condition subsequent.

As stated earlier, appellee required the parcel in question in order to comply with a Hepburn Township Zoning Ordinance since the proposed addition would be within several feet of the 2.5 acre parcel of land. Additionally, it was stipulated by the parties that, at the time of the 1957 deed, a church facility had existed for at least 100 years on the adjacent property; that, because there were no other parking areas convenient to the church, the members thereof believe that the existence of suitable parking facilities is necessary for the continued existence of the church and its congregation; and that Samuel Hoff recognized the need for parking because the school house property next door had been sold by the church a few years earlier. Accordingly, it would appear that, in order for appellee to maintain the church, it is vital that some type of parking area be provided. Appellee did this by constructing a parking lot on the land in question. Also, in order to add on to the church without violating a township zoning ordinance, it is essential that appellee have the property deeded by Samuel Hoff. As pointed out previously, it was the intent of Samuel Hoff that a church be erected and maintained, and since the church was already built, its maintenance is now the primary concern. Thus, we agree with, and find support for the trial court’s holding that appellee’s actions were consistent with Samuel Hoff’s intent, and were sufficient to constitute “erection and maintenance of a church building” so as to prevent the reversionary interest from passing to appellant.

Order affirmed.


author: OLSZEWSKI, Judge:

text:
    536 A.2d 340
    Murray FREEMAN, Appellant, v. KOERNER FORD OF SCRANTON, INCORPORATED and Ford Motor Credit Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1987.
    Filed Dec. 10, 1987.
    Reargument Denied Feb. 5, 1988.

      Murray Freeman, in propria persona.

      Anthony J. Piazza, Jr. (on brief), Michael A. Genello, Tellie, Durkin, Murphy, & Piazza, P.C., Scranton, for Koerner Ford, appellee.
    Paul A. Barrett, O’Malley, Harris, & Schneider, P.C., Scranton, for Ford Motor, appellee.
    Before ROWLEY, WIEAND and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order sustaining appellees’ demurrers and dismissing appellant’s complaint. We are presented with the question of whether appellees violated the Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691 et seq., in declaring appellant’s financing application incomplete and in failing to give appellant written notice of an adverse determination regarding his application. For reasons discussed below, we find no violation of the ECOA and, therefore, we affirm the decision of the trial court.

On December 9, 1985, appellant ordered a 1986 Ford Escort station wagon from appellee Koerner Ford of Scranton (Koerner Ford), subject to qualification for financing. Appellant was given a standard application for credit that he failed to complete by withholding his Social Security number. After being orally advised that the number was necessary to assess his credit history, appellant again refused to divulge the information. Three days later, appellant ordered and subsequently purchased the same make, model, and year automobile from another Ford dealer. Appellant commenced suit against appellees to recover: (1) the difference between what he paid for the vehicle and what he would have paid had his application been accepted and approved, and (2) other relief available under the ECOA.

Appellant alleges two violations under the ECOA. First, appellant claims that the trial court erred when it concluded that written notice of adverse action on appellant’s incomplete credit application was not required. We note, preliminarily, that the ECOA was enacted to ensure fairness in creditors’ consideration of credit applications. See 15 U.S.C. § 1691(a). To insure fairness, the ECOA makes it unlawful for a creditor to discriminate against an applicant with respect to any aspect of a credit application on the basis of race, color, religion, or sex, id. at (a)(1); or because an applicant has in good faith exercised any right under the ECOA, id. at (a)(3).

Regulations promulgated under the ECOA mandate written notification within thirty days after the taking of adverse action on an uncompleted application. 12 C.F.R. § 202.9(a)(2). Courts interpreting 12 C.F.R. § 202.9(a)(2) have determined, however, that when an application is withdrawn, the creditor’s obligations under the regulation cease and the failure of the creditor to give notice does not violate the regulation. Thompson v. Galles Chevrolet Co., 807 F.2d 163 (10th Cir.1986). The facts of the case demonstrate whether recission occurred. Id. at 166-167. In Thompson, the court held that exhibition of complete disinclination to obtain a vehicle from the defendant-dealer led to the conclusion that applicant had no further use for the credit application. Id. at 167. “Having abandoned their ‘end’ of buying a Galles’ truck, plaintiffs must necessarily have also revoked the ‘means,’ namely the financing credit application, chosen to accomplish that end.” Id.

The facts of the instant case are analogous to those of Thompson. Appellant abandoned his endeavor to purchase a car from Koerner Ford by ordering and purchasing the same vehicle from another local Ford dealer. In so doing, appellant revoked the financing application and was not entitled to written notification of an adverse determination regarding his application.

Appellant also contends that he was impermissibly discriminated against because he refused to give his Social Security number. In support of this claim, appellant cites the ECOA, 15 U.S.C. § 1691(a)(3), which prohibits discrimination for the good faith exercise of one’s legal rights under the ECOA. Appellant asserts that the Privacy Act, 5 U.S.C. § 552a, created a legal right, invocable in the present situation, to refuse to provide a Social Security number without denial of any benefit.

We note, however, that the Privacy Act prohibits denial of a benefit only when the entity requesting the Social Security number is an instrument of the United States or of the individual states. 5 U.S.C. § 552a, note; see also United States v. $200,000 in United States Currency, 590 F.Supp. 866, 871 (S.D.Fla.1984); Doyle v. Wilson, 529 F.Supp. 1343, 1349 (D.C.Del.1982). Appellant asserts, nonetheless, that the statute is applicable to this action because the “regulation of creditor activities through the ECOA establishes a ‘close relationship’ of creditors with the Federal Reserve Board.” Appellant’s brief at 23. Thus, appellant concludes that, because the Federal Reserve Board has created model credit application forms, creditors are regulatory entities subject to the Privacy Act.

We acknowledge that in some instances there is a close nexus between the state and an action by a regulated entity such that the action of the latter may be fairly treated as that of the state itself. Yeager v. Hackensack Water Co., 615 F.Supp. 1087 (D.C.N.J.1985). “This situation exists when a statutory scheme or executive directive compels the alleged proscribed activity.” Id., citing Jackson v. Metropolitan Edison Co., 483 F.2d 754, 757 (3d Cir.1973), aff'd 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). In Yeager, the court framed the ultimate question as whether the water company’s solicitation of Social Security numbers was sufficiently fostered or encouraged by the state to be imputed to the state. The court concluded that the primary motivation for the water company’s attempt to obtain the Social Security numbers came from a state administrative order.

Instantly, we find no comparable government intervention that would implicate the Privacy Act. Further, we determine that appellees did not discriminate under the ECOA, 15 U.S.C. § 1691(a)(1) or (3). Finally, because appellees did not breach a duty owed to appellant under the ECOA, appellant’s claim of negligence based on an ECOA violation must fail.

The order of the trial court is affirmed.