author: HOFFMAN, Judge:

text:
    554 A.2d 550
    COMMONWEALTH of Pennsylvania v. Carlton HUNTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1988.
    Filed Feb. 23, 1989.

      Irene H. Cotton, Philadelphia, for appellant.
    Norman Gross, Assistant District Attorney, Philadelphia, for Com.
    Before MONTEMURO, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for third degree murder and various weapons offenses. Appellant raises six claims of trial court error, as well as four claims of ineffective assistance of counsel. For the reasons that follow, we affirm the judgment of sentence.

On October 24, 1986, following a bench trial, appellant was convicted of murder in the third-degree, possession of an offensive weapon, and possession of an instrument of crime. Post-verdict motions were filed and denied. On December 22, 1987, appellant was sentenced to an aggregate term of six-to-fifteen-years imprisonment. Appellant’s motion to modify sentence was filed and denied, and this appeal followed.

Appellant first contends that the evidence was insufficient to support the verdict. The well-established standard for reviewing sufficiency claims was recently stated by our Supreme Court:

[WJhether, viewing the evidence in the light most favorable to the Commonwealth [as verdict winner], and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt____ The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence____ Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered____

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986) (quoting Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979) (citations omitted)).

The trial court aptly summarized the evidence as follows:

On the evening of December 24, 1980, Dwayne Brown [the victim] and a friend, Paul McLaurin, entered the dry-cleaning establishment at 24th and Somerset where defendant was employed. According to McLaurin, Brown had invited him to a party at the cleaners, which was a disguise for an illegal numbers operation. When the two men entered they encountered the defendant and conversed briefly with him and others before returning outside. Shortly thereafter another acquaintance, Eddie Capel, who had also been at the “party,” joined them outside and began a conversation. A few minutes later, defendant appeared outside with a shotgun, said something to Brown, and shot him once in the chest. When the police arrived, defendant was gone and McLaurin was huddled over his injured friend.
A stipulation established that an autopsy had determined that Brown died of a gunshot wound to the chest, fired from between two and eight feet away from the deceased. Also stipulated was the fact that the gastric alcohol content of Brown’s blood exceeded the legal limit for driving while intoxicated.
The Commonwealth also presented [two statements that had been taken from defendant]. In each statement defendant’s story was essentially the same:
On the evening of December 24, 1980, he was employed at Sonny Booth’s cleaners at 24th and Somerset, which was indeed a “front” for a gambling operation. Brown and McLaurin came in to see Sonny, and Brown became angry when the defendant informed the men that Sonny was not there. Brown lunged at the defendant, and as McLaurin pulled him away from defendant and toward the door, defendant saw what appeared to be the handle of a gun protruding from Brown’s pants. As McLaurin finally pulled Brown out of the door, Brown threatened to kill defendant. Defendant, then fearing for his own safety, sent his friend Rick Thomas out to his car to get a gun he was keeping there for a friend. While Thomas was gone, defendant told Eddie Capel, who had just arrived, of the confrontation, and Capel went outside to attempt to calm Brown. Thomas then returned with the gun, and, when defendant heard the men outside begin to argue, he took a drink of whiskey and hid in the outside cellarway with the gun. When Brown saw defendant peeking around the corner he took a step in defendant’s direction and reached into his shirt. Defendant, believing that Brown was reaching for a gun, emerged from the cellarway with his own gun and shot Brown.
* * * * * *
The Commonwealth’s final witnesses were Philadelphia Police Officer James Jackson and Detective Michael Cubbage, who were called to the shooting scene. When they arrived they found the deceased on the ground with McLaurin hovering over him, refusing to leave until the police wagon arrived. After attending to Brown the officers arrested McLaurin. They did not find any weapons on Brown or McLaurin.
# # * # * *
The final defense witness was the defendant____ In addition to relating the events as they appeared in his prior statements, defendant testified that he had known the deceased and McLaurin from the neighborhood. He had believed the object in Brown’s pocket was a gun because the deceased had a reputation for carrying a gun and for robbing people. When he went outside and hid in the cellarway, he heard Brown say, “There’s that m — f— right now. I’ll blow his m — f— brains out right now!” And for that reason he perceived that his life was in immediate peril.

Trial Court Opinion at 2-5. Appellant specifically argues that there was insufficient evidence of malice to support the murder verdict. We disagree. “In order for a willful or intentional killing to constitute murder, the Commonwealth must establish malice beyond a reasonable doubt.” Commonwealth v. Carbone, 375 Pa.Super. 261, 544 A.2d 462, 466 (1988) (en banc). See also Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972); Commonwealth v. Thomas, 403 Pa. 553, 170 A.2d 112 (1961). Malice is the element that distinguishes murder from manslaughter. See Commonwealth v. Weinstein, 499 Pa. 106, 115, 451 A.2d 1344, 1348 (1982).

Malice “ ‘comprehends not only ill will, but every case where there is a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.’ ” Commonwealth v. Car-bone, supra 375 Pa.Super. at 271, 544 A.2d at 466 (quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868)). See also Commonwealth v. Buzard, 365 Pa. 511, 76 A.2d 394 (1950). Malice may either be expressed by the defendant or “implied from his words or conduct and the attendant circumstances.” Commonwealth v. Hinchcliffe, 479 Pa. 551, 556, 388 A.2d 1068, 1070 (1978), cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978). One such circumstance is the use of a deadly weapon. “[I]t is well settled that the intentional use of a deadly weapon on a vital part of the body raises a permissible inference of malice.” Commonwealth v. Carbone, supra 375 Pa.Super. at 272, 544 A.2d at 467. See also Commonwealth v. Hinchcliffe, supra, 479 Pa. at 554, 388 A.2d at 1070.

All other kinds of murder shall be murder of the third degree. 18 Pa.C.S.A. § 2502(c). Our Supreme Court has noted that this definition "incorporates the common-law concept of malice as an element of murder of the third degree.” Commonwealth v. Hincliffe, 479 Pa. 551, 556, 388 A.2d 1068, 1070 (1978), cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978).

Here, the evidence summarized above was clearly sufficient to support a finding of malice. The court, sitting as fact finder, apparently chose to disbelieve appellant’s testimony on the issue of self-defense, and drew an inference of malice from the use of the shotgun and the attendant circumstances. It is settled, of course, that the trier of fact is free to believe all, part, or none of a witness’s testimony. See Commonwealth v. Carbone, supra 375 Pa.Super. at 264, 544 A.2d at 463. See also Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986); Commonwealth v. Curry, 318 Pa.Super. 490, 465 A.2d 660 (1983). Accordingly, we conclude that the Commonwealth met its burden of proving malice beyond a reasonable doubt.

Appellant’s next two arguments are inter-related, and derive from the court’s rejection of his self-defense theory. Appellant frames these issues as follows:

1. Does an employee in his place of business have a duty to retreat from mortal danger when otherwise he would be justified in defending himself?
2. Is there ever a duty to retreat when there is no safe avenue of escape?

Brief for Appellant at 2. The thrust of appellant’s argument is that the trial court misapprehended the law regarding appellant’s duty to retreat. Because the court misunderstood appellant’s duty to retreat, appellant maintains that the court in effect “misinstructed itself” and therefore improperly found that the Commonwealth met its burden of showing beyond a reasonable doubt that the killing was not in self-defense.

In order to negate a claim of self-defense, the Commonwealth must establish any one of the following elements beyond a reasonable doubt: (1) that appellant did not reasonably believe it was necessary to kill in order to protect himself against death or serious bodily harm, (2) that appellant provoked the use of force, or (3) that appellant had a duty to retreat and that retreat was possible with complete safety. 18 Pa.C.S.A. § 505(b)(1). See also Commonwealth v. Carbone, supra 375 Pa.Super. at 275, 544 A.2d at 469; Commonwealth v. Zenyuh, 307 Pa.Super. 253, 257, 453 A.2d 338, 340 (1982). With regard to the duty to retreat, the Crimes Code further provides that a person “is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor....” 18 Pa.C.S.A. § 505(b)(2)(ii)(A).

Here, our review of the record convinces us that appellant’s claim that the trial court misapprehended the law on self-defense is meritless. During appellant’s closing argument, the court and trial counsel engaged in the following exchange with regard to appellant’s duty to retreat:

THE COURT: Why didn’t [appellant] just walk back down the cellar?
MR. PHILLIPS [APPELLANT’S COUNSEL]: There is no way out of the cellar, Judge.
THE COURT: When he saw the argument and threats, then he was inside—
MR. PHILLIPS: Yes.
THE COURT: When he walked out and saw him or heard his voice, why couldn’t he just have retreated right back down in that numbers house?
MR. PHILLIPS: Number one, the law says that there is no right to retreat.
THE COURT: You can retreat from outside.
MR. PHILLIPS: He said he was standing on the steps and he came out of that cellarway.
THE COURT: Outside, no, not in the place, in the first place, that’s not his home.
MR. PHILLIPS: No, it’s a place of business where he works.
* * * * * *
THE COURT: The law says in Pennsylvania you still have a duty to retreat.
MR. PHILLIPS: Not in your place of business, sure. Never from a place of business, Your Honor. There are two places—
THE COURT: He was on the outside of the business.
* * * * * *
MR. PHILLIPS: He’s half in and half out.
THE COURT: He has a right to police the bar from one incident [one “inside it”?], the person who creates the disturbance outside of that bar shouting and hollering, you can’t step outside of that bar and do anything to him. MR. PHILLIPS: I’ve got half of him outside and half of him inside.
* * * * * *
[T]here is no duty to retreat from a place that you work. Here’s a person who—
THE COURT: That’s outside, that’s no one attacking him in the bar or attacking you in your house. This is outside.
MR. PHILLIPS: The law says that there are two places. We have a duty with everybody, if you can safely retreat, then you must do so. And you certainly can’t provoke anyone____
******
THE COURT: Safety. The key is safety, and you don’t have any duty to retreat from your home or your place of business; right?
MR. PHILLIPS: That’s correct.
THE COURT: That’s correct. You don’t have any, but in this case, the assailant was on the outside. That’s like if somebody is outside banging on your door you cannot take a gun and shoot him through the door, you are well aware of that?
MR. PHILLIPS: I’m well aware of that.

N.T. October 24, 1986 at 219-20, 226-27, 231-32. This colloquy demonstrates the trial court’s awareness that a person is not obliged to retreat from his place of work. More importantly, the colloquy also reflects the court’s careful articulation of the reason why it concluded that appellant had failed to fulfill his duty to retreat: i.e., because the “danger” appellant allegedly defended himself against was outside his place of business, and he chose to leave the business (by stepping into the cellarway) to confront that danger. Because the record reveals that the trial court properly understood the law regarding appellant’s duty to retreat, we conclude that the trial court did not err in finding that appellant did not act in self-defense.

Appellant next contends that the third degree murder verdict was contrary to the weight of the evidence because the trial court should have credited his testimony rather than that of a Commonwealth witness, Paul McLaurin. The determination whether to grant a new trial on the ground that the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse of discretion. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982). Before a trial court may award a new trial on this ground, it must appear that the verdict was so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative. Commonwealth v. Gamber, 352 Pa.Super. 36, 45, 506 A.2d 1324, 1329 (1986); Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981). When the challenge to the weight of the evidence is predicated on the credibility of the trial testimony, our review of the trial court’s decision is extremely limited. Generally, unless the evidence “is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture,” Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976) (citations omitted), these types of claims are not cognizable on appellate review. Id. See also Commonwealth v. Nelson, 514 Pa. 262, 271 n. 3, 523 A.2d 728, 733 n. 3 (1987) (except in cases where penalty of death is imposed, appellate court should not entertain challenge to weight of evidence because examination is confined to “cold record”).

Applying these standards to the case at bar, it is clear that the verdict was not based on surmise or conjecture. Appellant’s statements and trial testimony — in which he admitted that he shot the victim — provided a sufficient basis for the court to conclude that appellant acted with malice. In addition, the undisputed physical evidence — that no weapon was found on either the victim or McLaurin — provided a sufficient basis for the court to conclude that appellant had not acted in self-defense. Thus, even if McLaurin’s testimony is completely discounted, the verdict was consistent with the trial evidence. Accordingly, we cannot conclude that appellant is entitled to a new trial on the ground that the verdict was against the weight of the evidence.

Appellant next contends that the trial court erred in failing to order a new trial based on after-discovered evidence. A new trial may be granted on the basis of after-discovered evidence only if it is demonstrated that the evidence

(1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted.

Commonwealth v. Smith, 518 Pa. 15, 49, 540 A.2d 246, 263 (1988) (quoting Commonwealth v. Buehl, 510 Pa. 363, 393, 508 A.2d 1167, 1182 (1986)). Moreover, absent a clear abuse of discretion, the trial court’s refusal to grant a new trial on the basis of after-discovered evidence will not be disturbed on appeal. Commonwealth v. Treftz, 465 Pa. 614, 629-30, 351 A.2d 265, 272 (1976). With these standards in mind, we have carefully reviewed the record and the briefs submitted by the parties, and we conclude that the trial court has properly disposed of this contention in its opinion. Accordingly, we affirm the disposition of this issue on the basis of the trial court’s opinion.

Appellant next contends that the sentence imposed on him was excessive.

Sentencing is a matter within the sound discretion of the sentencing court, and, generally, will not be disturbed absent an abuse of discretion. “If the sentence imposed is within the statutory limits, there is no abuse of discretion, unless the sentence is so manifestly excessive so as to inflict too severe a punishment.”

Commonwealth v. Parrish, 340 Pa.Super. 528, 532, 490 A.2d 905, 907 (1985) (citations omitted), appeal quashed, 515 Pa. 297, 528 A.2d 151 (1987). In formulating a sentence,

the court must consider the character of the defendant and the particular circumstances of the offense ... and must impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.

Commonwealth v. Edward, 303 Pa.Super. 454, 471, 450 A.2d 15, 23 (1982) (citations omitted). See also 42 Pa.C.S.A. § 9721(b).

Here, appellant specifically argues that the sentence was excessive because (1) it was inconsistent with the protection of the public, the gravity of the offense, and appellant’s rehabilitative needs; and (2) the court failed to consider testimony regarding appellant’s good character. We disagree.

At the sentencing hearing, appellant’s counsel informed the court that appellant had no prior convictions; that numerous character witnesses had testified on appellant’s behalf at trial; and that letters had been written by the Chief of Police and Mayor of Enfield, North Carolina, attesting to appellant’s good character. N.T. December 22, 1987 at 4-7. In addition, appellant took the stand, apologized to the victim’s mother, and expressed his remorse to the court. Id. at 11-13. Finally, the court was provided with both a pre-sentence investigation and a mental health evaluation regarding appellant. Id. at 4-5, 10. The court, before imposing sentence, stated that:

BY THE COURT:
Q. Let me say this before you start.
They have all of the elements of first-degree murder, that’s the fact that you sent for the gun, you took the gun, you went outside. In other words the law is that you can’t provoke the incident and then shoot and claim self-defense. You must not be the aggressor. There was all of the elements of first degree.
Because of your attorney being, well, I would consider an excellent trial attorney. He presented good character witnesses. He had people that came up from North Carolina that even testified in your behalf and had people from the community who testified in your behalf. All that was taken under consideration when this verdict was rendered.
******
And that’s a first-degree murder case. If you were found guilty of first-degree murder, I would have no discretion but to sentence you to life imprisonment.
And because your attorney presented the case with character witnesses, your age, you had never been arrested before, is the reason for the verdict in the first place____
******
And all the leniency that was given to you was given in the verdict. The things that we are going over now w[ere] presented at the trial which was the reason I found you guilty of third-degree murder.
******
Taking a life, even though this is your first offense, I consider, because I am now in the sentencing. I would not not even consider the trouble that you got in when you were a juvenile.

Id. at 11-13!

The trial court’s comments at the sentencing hearing reflect its consideration not only of the gravity of any offense that involves the taking of a life, but also the particular circumstances of this crime (i.e., appellant was not justified, and the evidence would have supported a first degree murder verdict), as well as mitigating factors, including appellant’s good character. The court then clearly-delineated the role that the mitigating factors played in both the verdict and the sentence. In short, the court emphasized that, although mitigating factors had convinced it to find appellant guilty of third degree murder rather than first degree murder, they did not alter the fact that appellant had pursued the victim following an argument, and, without justification, shot and killed him. On this record, we cannot conclude that the sentence imposed was an abuse of discretion.

Appellant next raises four claims of ineffective assistance of trial counsel. The law governing ineffective assistance of counsel claims was recently summarized by our Supreme Court as follows: Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). In this analysis, counsel is presumed to be effective, and appellant bears the burden of establishing that trial counsel was ineffective. See, e.g., Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 235 (1981); Commonwealth v. Ellis, 354 Pa.Super. 11, 510 A.2d 1253 (1986); Commonwealth v. Jones, 298 Pa.Super. 199, 205, 444 A.2d 729, 732 (1982). Moreover, in Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981) our Supreme Court noted that,

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).
Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.

Id., 492 Pa. at 563, 424 A.2d at 1335.

Appellant first contends that trial counsel was ineffective for failing to call Eddie Capel, an eyewitness who was present during the shooting, to testify on his behalf. In order to prove that trial counsel was ineffective for failing to investigate or call witnesses, appellant must demonstrate:

“[1] the names and whereabouts of these witnesses, [2] the substance of their testimony and [3] how they would have appreciably strengthened his defense. Moreover, ... [appellant must show] [4] that his trial counsel knew of the existence of the witnesses who purportedly should have been called.” Commonwealth v. Clemmons, 505 Pa. 356, 365, 479 A.2d 955, 959 (1984).

Commonwealth v. Humpheys, 367 Pa.Super. 154, 160, 532 A.2d 836, 838 (1987), allocatur denied. See also Commonwealth v. Torres, 329 Pa.Super. 58, 68, 477 A.2d 1350, 1355 (1984).

Here, the record reveals that trial counsel was aware that Capel was present at trial and available to testify. N.T. October 23, 1986 at 158; N.T. October 24, 1986 at 176. Appellant, however, makes no specific allegation regarding either the substance of Capel’s testimony or the manner in which it would have been helpful to the defense. Instead, appellant suggests that, because Capel was present at the scene, “[i]t would therefore be within his knowledge whether [the victim] said anything threatening to [appellant] just before getting shot, whether he was reaching toward his pants’ waistband just then, and he would know if [appellant] was on the cellar steps or all the way out of the place.” Brief for Appellant at 26-27. Because appellant’s argument is based on mere speculation regarding the substance of Capel’s testimony, rather than on what the testimony would be in fact, he has failed to allege sufficient facts for us to conclude that the testimony would have been helpful to the defense. See Commonwealth v. Pettus, supra. Accordingly, we cannot conclude that trial counsel was ineffective for failing to have Capel testify at trial. See Commonwealth v. Humpheys, supra.

Appellant next contends that trial counsel was ineffective for failing to correct the trial court’s mistaken understanding that appellant had the burden of proving that he had acted in self-defense. When, as here, a case is tried to the court rather than a jury, we will presume that the court applied proper legal standards. See Commonwealth v. Donofrio, 247 Pa.Super. 345, 348, 372 A.2d 859, 860 (1977) (“[t]he Judge is imbued with the knowledge of the law that he would have given in a formal charge in a jury case”).

Appellant's argument that the trial court misallocated the burden of proof is premised on a single sentence in the trial court’s opinion. The court stated:

Because no evidence was presented to show that the victim in this case was in fact armed, and because defendant had an opportunity to fulfill his duty to retreat and failed to do so, defendant has failed to sustain a valid claim of self defense____

Trial Court Opinion at 5 (citations omitted) (appellant’s emphasis). Nothing in this sentence suggests that the trial court imposed upon appellant the ultimate burden of proving the elements of self-defense. Moreover, as we have noted earlier in this Opinion, the court had before it (1) testimony from police officers and Paul McLaurin that the victim was unarmed, and (2) uncontradicted evidence, including appellant’s testimony, that appellant had left the store and was in the cellarway when he shot the victim, and that the victim himself was outside the store. Viewed in light of the trial evidence, the statement is an accurate summary of the testimony on the self-defense issue. We are not prepared to hold that the mere fact that the court inartfully phrased its legal conclusion in terms of the claim being “unsustained” rather than “disproved” is sufficient to overcome the presumption that the court applied proper legal standards. See Commonwealth v. Donofrio, supra. Accordingly, appellant’s claim that trial counsel should have corrected the court’s misunderstanding of the law on self-defense lacks arguable merit.

Appellant next claims that trial counsel was ineffective for failing to call as a witness Dr. Robert Segal, the pathologist who performed the autopsy on the victim. Dr. Segal’s post-mortem examination was admitted into evidence pursuant to a stipulation by the parties. The report apparently stated that the course of the gunshot wound was “minimally from above downward.” Appellant suggests that, because this unexplained statement regarding the trajectory of the pellets was inconsistent with appellant’s testimony regarding the relative positions of the parties when he shot the victim, the court may have discounted his testimony on self-defense. Appellant argues that, if counsel had called Dr. Segal to the stand, Dr. Segal could have provided an explanation for the course of the gunshot wound that was consistent with appellant’s testimony.

We fail to see how counsel’s failure to call Dr. Segal prejudiced appellant. The thrust of appellant’s argument is that Dr. Segal would have corroborated his testimony that he was in the cellarway and not on the sidewalk when he shot the victim. We note, however, that the court’s verdict was not inconsistent with appellant’s testimony. Indeed, a determination of appellant’s exact position in the cellarway was not necessary to the court’s conclusion that appellant did not act in self-defense: i.e., even if appellant was on the second step in the cellarway rather than on the sidewalk, the fact would remain that he had not acted in self-defense because he left the store, and continued the confrontation with the victim, who was outside the cellarway and unarmed. Thus, the court could have believed appellant’s testimony in its entirety, and still concluded that he had not acted in self-defense. Because appellant has failed to demonstrate in what respect the failure to call Dr. Segal prejudiced him, we cannot conclude that counsel was ineffective in this regard. See Commonwealth v. Davis, supra.

Appellant last contends that trial counsel was ineffective because counsel’s “performance overall was diminished by his own troubles.” Brief for Appellant at 33. Appellant alleges that, at the time of the trial below, counsel knew that he was under investigation by federal authorities. Appellant then cites to alleged “errors and omissions” by counsel that he claims “could have been the result of the strain that [counsel] must have been under and the distraction that must have detracted from his concentration on [appellant’s] cause.” Id.

Initially, we note that there is no record evidence regarding the nature and scope of counsel’s alleged personal legal problems. Thus, we cannot determine what, if any, effect they could have had on counsel’s performance at appellant’s trial. Moreover, the specific “errors and omissions” that appellant cites are not of a quality that would call into question counsel’s ability to render competent assistance; indeed, appellant himself concedes that counsel’s “derelictions” were not “earthshaking.” Id. at 36. Because appellant has failed to allege facts sufficient to show that counsel’s personal problems affected his ability to provide competent representation, we conclude that this claim lacks arguable merit. See Commonwealth v. Davis, supra; Commonwealth v. Pettus, supra.

■ For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . The Crimes Code provides in relevant part that,

      . We are aware that, because the concepts of malice and self-defense are mutually exclusive, our finding that the evidence was sufficient to support an inference of malice ordinarily would bar us from examining a claim based on self-defense. See Commonwealth v. Hinchcliffe, 479 Pa. at 557, 388 A.2d at 1071 ("since there was evidence from which a jury could at least reasonably infer malice, the Commonwealth has met its burden of proving beyond a reasonable doubt that Hinchcliffe did not act in self defense."). See also Commonwealth v. Heatherington, 477 Pa. 562, 385 A.2d 338 (1978). Here, however, appellant claims that the verdict resulted from the court’s misunderstanding of the law regarding self-defense. Accordingly, we must examine the merits of this claim.

      . We note that the trial court also found that self-defense was disproved by the Commonwealth "[b]ecause no evidence was presented to show that the victim in this case was in fact armed.” Trial Court Opinion at 5. See also N.T. October 24, 1988 at 229-30. Because the victim was not armed, of course, the fact finder was free to conclude that appellant’s belief that he was in danger was unreasonable. This conclusion is also sufficient to disprove self-defense.

      . We note that when, as here, the court sits as fact finder, his findings are entitled to the same weight as a jury verdict. See Commonwealth v. Starks, 298 Pa.Super. 213, 216, 444 A.2d 736, 738 (1982).

      . Appellant has not included in his brief a separate statement of the reasons relied upon to allow an appeal from the discretionary aspects of his sentence. See Pa.R.A.P. 2119(f). In the first paragraph of his argument on the sentencing claim, however, appellant does state reasons why we should allow the appeal. We note that the Commonwealth has not objected to the manner in which appellant has presented this claim, and thus it has waived any objection based on Rule 2119(f). See Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc).

      . We note that this claim presents a substantial question for our review.

      . We note also that, because a pre-sentence report was filed with the trial court prior to sentencing, we must presume that the court properly weighed all relevant sentencing considerations. See Commonwealth v. Devers, 519 Pa. 88, 95, 546 A.2d 12, 18 (1988).

      . These claims were not raised in the court below. We note, however, that appellant is presently represented by counsel other than trial counsel, and thus "the issue of trial counsel’s effectiveness may now be raised in this direct appeal.” Commonwealth v. Holmes, 482 Pa. 97, 105 n. 3, 393 A.2d 397, 401 n. 3 (1978).

      . When a claim of self-defense is raised, the Commonwealth, of course, has the burden of showing beyond a reasonable doubt that the killing was not in self-defense. Commonwealth v. Hinchcliffe, supra 479 Pa. at 552, 388 A.2d at 1069; Commonwealth v. Carbone, supra at 375 Pa.Super. at 270, 544 A.2d at 466.

      . We note also that counsel was replaced by present counsel before the court’s opinion was filed. Thus, even if the court misallocated the burden of proof, counsel would have been unaware of it at the time he represented appellant.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    554 A.2d 560
    COMMONWEALTH of Pennsylvania v. Carmelo Morales GRACIANI, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1988.
    Filed Feb. 23, 1989.

      John R. Gailey, Jr., York, for appellant.
    Mark A. Bellavia, Assistant District Attorney, York, for Com., appellee.
    Before BECK, KELLY and HESTER, JJ.
   KELLY, Judge:

Appellant, Carmelo Morales Graciani, appeals from judgment of sentence imposed following his conviction of possession of cocaine with intent to distribute. Appellant’s sole contention on appeal is that the search warrant pursuant to which he was searched and the cocaine was found, was unconstitutional in that it authorized the search of “all persons present” at a private residence without requiring a particularization of the identities of those persons to be searched or the probable cause to suspect criminal activity on the part of those individuals. We find no merit in the contention and affirm judgment of sentence.

FACTS AND PROCEDURAL HISTORY

On February 10, 1987, pursuant to a lawful warrant based on information supplied by a reliable confidential informant, York City Police conducted a search at 534 Jesop Place in York City, Pennsylvania, seized 33 packets of cocaine, and arrested Ricardo Colon on a charge of possession of cocaine with intent to distribute. Subsequently, the same reliable confidential informant informed the York City police that a woman identified as Ricardo Colon’s wife had resumed the cocaine retail operation at that residence.

On February 15, 1987, Detective John R. Daryman of the York City Police applied for a warrant to again search the residence at 534 Jesop Place. In his affidavit in support of his warrant request, Detective Daryman indicated the following. His confidential informant had provided reliable information in the past which had led to the conviction of at least eight drug dealers. Information provided by the confidential informant had led to the lawful seizure of 33 packets of cocaine at the residence in question five days earlier. The confidential informant informed the police that within the past three days the confidential informant had personally observed cocaine sales at the residence, conducted by a woman identified as Ricardo Colon’s wife. The confidential informant further indicated that the cocaine being sold was kept hidden in the house, and that purchasers who come to the house purchase the cocaine and then secret it on their person before leaving the house.

Based upon those facts, the issuing authority approved a search warrant authorizing the police to search the residence “and all persons present to avoid the destruction or concealment of evidence.” At 4:15 p.m. on February 16, 1987, the warrant was executed. There were three adults including appellant at the residence at the time of the search. Upon searching appellant, the police discovered ten packets of cocaine in his left rear pants pocket and fifteen packets of cocaine in his front pockets. (N.T. 5/6/87 at 6-7). Appellant was then placed under arrest.

A pre-trial motion challenging the constitutionality of the search was filed April 24, 1987. Following a hearing on the motion and submission of briefs, the motion to suppress was denied. On September 2,1987, appellant was convicted in a bench trial of possession of cocaine with intent to distribute. Appellant’s post-verdict motions were denied on December 2, 1987. On December 28, 1987, appellant was sentenced to a term of imprisonment in the York County Prison of nine to eighteen months. This timely appeal follows.

On appeal, appellant contends that the authorization to search “all persons present” violated the state and federal proscriptions against unreasonable searches and seizures. Appellant argues that “to permit police to search the persons of all unnamed persons present at premises where evidence of a crime is believed to be concealed would make a mockery of these constitutional safeguards.” (Appellant’s Brief at 9). He cites in support of this argument, Commonwealth v. Reece, 437 Pa. 422, 263 A.2d 463 (1970), Commonwealth v. Eichelberger, 352 Pa.Super. 507, 508 A.2d 589 (1986), and Commonwealth v. Lundy, 281 Pa.Super. 541, 422 A.2d 601 (1980), cert. denied 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99 (1981).

The Commonwealth responds that the warrant was constitutional, the cases cited by appellant are distinguishable, and the case is controlled by our recent decision in Commonwealth v. Heidelberg, 369 Pa.Super. 398, 535 A.2d 611 (1987). We agree.

Initially, we note that Commonwealth v. Reece, supra, Commonwealth v. Eichelberger, supra, and Commonwealth v. Lundy, supra, all dealt with warrants which did not involve specific authorization to search “all persons present,” and are in that respect materially distinguishable from the situation presented here. See Commonwealth v. Heidelberg, supra, 369 Pa.Superior Ct. at 405 & n. 5, 535 A.2d at 614 & n. 5 (citing similarly distinguishable cases as well). In the instant case, a neutral and detached magistrate specifically authorized a search of “all persons present” at the location when the warrant was executed.

In Commonwealth v. Heidelberg, supra, after careful review of the relevant authorities, this Court held that, though generally disfavored, an “all persons present” warrant would be deemed constitutional when the totality of circumstances established a sufficient nexus between the persons to be searched, the location, and the criminal activity suspected. 369 Pa.Superior Ct. at 400-407, 535 A.2d at 612-615; id., 369 Pa.Superior Ct. at 407, 535 A.2d at 615-16 (Beck, J., concurring). In Heidelberg, we found a sufficient nexus to justify issuance of an “all persons present” warrant based upon the fact cocaine sales had been observed between the occupant and other persons at the house within twenty-four hours of the application for the warrant, a large quantity of cocaine was believed to be kept at the house, the place to be searched was a private residence, and the crime suspected involved contraband which could easily be hidden on the body. 369 Pa.Superior Ct. at 407, 535 A.2d at 615. We reasoned that the likelihood that anyone present at the time of the execution of the warrant might be involved in the cocaine distribution or be willing to hide evidence of the operation on their person was sufficient to justify issuance of the “all persons present” warrant.

Here, as in Heidelberg, the location to be searched was a private residence and the serious crime suspected involved the same easily secreted often deadly contraband. The facts differ, however, in that the sales observed between the occupants and others in Heidelberg occurred within one day of the warrant application while the sales here were characterized as having been made within three days of the warrant application. Additionally, in Heidelberg the warrant application expressly stated that a large quantity of cocaine was believed to be kept at the house, while in the instant case, that fact must be inferred from the statements in the warrant application that a recent search at the same residence had resulted in the seizure of thirty-three packets of cocaine, new sales had been observed at the residence within five days of that search, and the confidential informant had indicated that the cocaine for the sales observed had been kept in the house. We do not find these differences to be material or to require a different result. Moreover, we note that the reliability of the informant’s tip here was greatly enhanced by the fact of the lawful seizure of a large quantity of cocaine at the same residence five days earlier based upon a tip by the same informant. Hence, we conclude that a sufficient nexus was established to justify authorization of an “all persons present” search warrant in this case.

Finally, we note the following relevant analysis by Justice Larsen:

Furthermore, in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) Justice William Rehnquist, writing a dissent for the United States Supreme Court, made a telling point when he stated that ‘an absolute bar to a searching persons not named in the warrant would often allow a person to frustrate the search simply by placing the contraband in his pocket.’ Id. at 102, 100 S.Ct. at 348. And so too, visitors to the premises could frustrate the efforts of police by placing contraband among their unworn personal effects or by announcing ownership of various articles of clothing and containers in order to place those items beyond the scope of the warrant. We cannot sanction any rule that through fraud and gamesmanship erects barriers to the effective and legitimate execution of search warrants.

Commonwealth v. Reece, 520 Pa. 29, 34, 549 A.2d 909, 911 (1988). (Emphasis added).

This case presents an excellent example of just such fraud and gamesmanship. Appellant complains that to uphold this search would make a mockery of our constitutions. To the contrary, it is appellant and his fellow drug dealers who attempt to make a mockery of our constitutions by taking the liberties embodied in the Fourth Amendment and Article I, section 8 of the Pennsylvania Constitution and attempting to twist them into a dark fortress from which to ply their deadly trade in societal poisons with impunity.

While we must ensure that legitimate constitutional rights do not become casualties in our society’s war on drugs, no rule of constitutional construction requires that we ignore the realities of modern drug distribution systems in determining the reasonableness of the warrant issued in this case. Though it is certainly possible, even probable, that innocent third parties who happen to be at the wrong place at the wrong time may be subjected to searches under such warrants, the nexus between the person to be searched and the nature and seriousness of the criminal conduct suspected on probable cause, nonetheless, renders the probability of their culpable participation in the crime suspected sufficient to warrant a search of their person to prevent the destruction or concealment of evidence of the crime suspected.

Here, appellant attempted to hide the evidence of his crime within the privacy of a home, and on the sanctity of his person. Fortunately, the police requested, and the issuing authority was wise enough to grant, the authority necessary to expose this readily anticipatable fraud.

Judgment of sentence is affirmed.


author: PER CURIAM:

text:
    554 A.2d 563
    Catherine SALEMO, Appellee, v. George SALEMO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1988.
    Filed Feb. 27, 1989.

      George Salerno, appellant, in propria persona.
    Robert C. McFadden, Allentown, for appellee.
    Before TAMILIA, WATKINS and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from the Decree of Divorce. Appellee initially filed a complaint in divorce under 23 P.S. § 201(c). Appellant filed an answer and counterclaim under 23 P.S. § 201(a)(2). Thereafter, appellee filed an amended complaint alleging that appellant had been sentenced to a term of imprisonment for a period of two or more years and thus, requesting a divorce pursuant to 23 P.S. § 201(a)(5). Appellant filed an answer to the amended complaint alleging that his sentence was not final as it was currently on appeal. In August, 1987, appellee filed a petition for bifurcation. A hearing on said petition was finally held on October 6, 1987. Appellant was not present for the hearing. We note that both parties to this divorce are unrepresented on appeal and, therefore, the issues raised are not well-defined.

Appellant first contends that a master should have been appointed in this matter. Our rules of procedure specifically provide, however, that the court may hear testimony or may appoint a master to hear the testimony in an action of divorce under Section 201(a). Pa.R.Civ.P. 1920.-51(a)(2)(i), 42 Pa.C.S.A. Rule 1920.51. Additionally, we note that a master was, indeed, appointed in this matter in July, 1983, and that appellee had deposited with the court the sum of $300.00, but due to appellee’s apparent inability to pay the master’s fees, the court, upon petition, ordered that the master’s fees be withdrawn and the case proceeded without a master.

Appellant also contends that the court erred in failing to consider any economic issues raised in this matter. We note that the decree entered in this action was final only as to the issue of divorce and that the court retained jurisdiction of any other issues raised by the parties. Thus, appellant is free to pursue, in accordance with the rules governing such actions, any other claims raised in this matter. 23 P.S. § 401(b); Pa.R.Civ.P. 1920.1 et seq.

Appellant further claims that the trial court erred in holding the hearing absent appellant’s presence. Initially, we note that this court has held that where a defendant in a divorce action has filed a counterclaim seeking to secure a divorce in his or her favor but on separate and distinct grounds, he or she is entitled to present evidence in support of his or her claim prior to the court’s ruling on the merits of the plaintiff’s claim. Restifo v. Restifo, 339 Pa.Super. 352, 489 A.2d 196 (1985). After hearing all the evidence, the court will then determine upon which basis it will grant the divorce. Restifo v. Restifo, supra.

At the time of the hearing in the instant matter, appellant was incarcerated. In August, 1987, appellant filed a petition for writ of habeas corpus ad testificandum requesting that the court secure his presence at the hearing in this matter. Thereafter, the court entered an order continuing the hearing until October, 1987, but failed to address the above petition. Subsequently, the court, in its opinion filed in response to the present appeal, noted that while appellant had requested to be present at the hearing, the court believed that since this was a civil matter the court was not obligated to honor appellant’s request and that the appellant himself would have to make whatever arrangements he could to be present at the hearing. This, we conclude, was in error.

The purpose of a writ of habeas corpus ad testificandum is to bring a prisoner to court to testify. Commonwealth ex rel. Fraley v. Rotan, 82 Pa.Super. 172 (1923). The writ is available where a prisoner wishes to testify himself, as well as where his testimony is sought by another. See, Vanaman v. Cowgill, 363 Pa.Super. 602, 526 A.2d 1226 (1987). The writ is essentially a subpoena and not a discharge from custody. Commonwealth ex rel. Fraley v. Rotan, supra.

In Jerry v. Francisco, 632 F.2d 252 (3rd Cir.1980), the Third Circuit Court of Appeals set forth certain criteria which it found should be considered by a court in determining whether a writ of habeas corpus ad testificandum should issue. Initially, a court must weigh the interests of the incarcerated person in presenting his testimony in person against the interests of the state in maintaining confinement. Jerry v. Francisco, supra. Accordingly, the court found that the following factors should also be considered: the costs and inconvenience of transporting the inmate; any potential danger associated with any such transfer and/or attendance at any hearing or trial; the substantiality of the matter at issue; the need for an early determination of the matter; the possibility of success on the merits; the integrity of the correctional system; and the interests of the inmate in presenting his testimony in person rather than by deposition. The court went on to state that a consideration of the above factors necessarily would entail consideration of other factors including whether the incarcerated person is the only one who can render testimony consistent with the allegations of his complaint.

In Vanaman v. Cowgill, supra, this court held that an incarcerated father was entitled to notice of a custody proceeding, which notice contained a statement informing him that if he wished to attend he could request the court, by means of writ of habeas corpus ad testificandum, to make arrangements for transportation to and presence at the hearing, and that an incarcerated father’s right to be present and present evidence at the hearing was violated when an order denying him visitation was entered despite his nonattendance at the hearing. While the Vanaman case dealt with a petition for custody, the court therein relied upon Jones v. Jones, 1 D. & C.3d 401 (1974) and the cases cited therein, which held that where a defendant in a divorce action is incarcerated, he or she may, if desirous of attending a hearing in the matter, request the court, by means of an application for a writ of habeas corpus ad testificandum, to make arrangements for transportation to and presence at the hearing. While we have been unable to locate either procedural rule or appellate case law directly on issue, a number of our trial courts have held that an incarcerated defendant in a divorce action is entitled not only to notice of any hearing in such a matter, but also to specific notice of his right to apply to the court for a writ of habeas corpus ad testificandum to enable him to attend the hearing. Jones v Jones, supra; Mankos v. Mankos, 45 D. & C.2d 274 (1968); Hoffman v. Hoffman, 33 D. & C.2d 528 (1964); Lerneard v. Lerneard, 27 D. & C.2d 586 (1961); Marushak v. Marushak, 27 D. & C.2d 199 (1962); Smith v. Smith, 18 S. & C.2d 623 (1959); Davidson v. Davidson, 1 D. & C.2d 71 (1954).

An Illinois appellate court, in the case of In re Marriage of Allison and Allison, 126 Ill.App.3d 453, 81 Ill.Dec. 610, 467 N.E.2d 310 (1984), was presented with this same issue. There, the trial court had held a hearing following which it dissolved the parties’ marriage, awarded custody, child support and attorney’s fees and divided property. The appellant, who was, at the time of the hearing, incarcerated, was not present at the hearing. The appellant had, however, petitioned the court for a writ of habeas corpus ad testificandum to secure his presence at the hearing, which petition the court ignored. On appeal, the court held that the trial court had erred in denying the prisoner’s petition for order of habeas corpus ad testificandum to compel his presence at the hearing without first exercising its discretion with regard to whether or not the writ was necessary.

Similarly, the trial court in the instant case gave scant, if any, consideration to appellant’s application for a writ of habeas corpus ad testificandum. In view of the foregoing, we conclude that it was error for the court to dismiss said petition without considering the factors enumerated in Jerry v. Francisco, supra.

Decree vacated and case remanded for a hearing consistent with this Opinion. Jurisdiction is relinquished.


author: CAVANAUGH, Judge: POPOVICH, Judge,

text:
    554 A.2d 565
    Betty J. BAKER, Executrix of the Estate of Thomas Motel, Deceased, Appellant, v. S. & L. SERVICE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1988.
    Filed Feb. 21, 1989.

      John M. Humphrey, Williamsport, for appellant.
    Thomas K. Kistler, Bellefonte, for appellee.
    Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
   CAVANAUGH, Judge:

The sole issue in this appeal is the propriety of the award of delay damages by the court below. A verdict was entered in favor of the plaintiff below, who is the appellee herein, in the amount of $283,281.43. The court awarded delay damages on the amount of the verdict at the rate of ten (10%) per cent per year to be computed from May 17, 1986 through the date of payment.

An appeal from the award of delay damages was pending in this court on November 7, 1988 when new Rule 238 of the Pennsylvania Rules of Civil Procedure became effective. The instant case is controlled by this Court’s recent en banc decision in Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988) wherein we stated at page 380 Pa.Superior Ct. 418, 552 A.2d at 259:

In determining whether the new Rule 238 applies to the matter pending before us, we are guided by Pa.R.C.P. 52 which states:

Rule 52. Effective Date.

Application to Pending actions
(a) A rule or an amendment to a rule shall be effective upon the date specified by the Supreme Court.
(c) Unless the Supreme Court specifies otherwise, a rule or an amendment to a rule shall apply to actions pending on the effective date. (Emphasis added.)
See also, Sherry v. Trexler Haines Gas, Inc., [373] Pa. Super. [330], 541 A.2d 341 (1988).
The Supreme Court has not directed otherwise and new Rule 238 applies to actions pending before us on the effective date of the Rule. (Emphasis added.)

We further stated in Ceresini, supra, 380 Pa.Superior Ct. at 419, 552 A.2d at 259:

The appropriateness of the award of delay damages is the only issue before us in this case. In our opinion, the Rule applies to all actions pending at the trial level, or on appeal, in which the issue of delay damages has been preserved and not finally determined, as in this case. (Emphasis added.)

In Ceresini, as in the instant case, the court below entered delay damages, and the issue on appeal was the appropriateness of the damages. We remanded in Ceresini, as we must in this case, for the court below to assess delay damages in accordance with new Rule 238.

The dissenting opinion states at page 569:

Once damages for delay have been “determined” by a trial court, in accordance with the provisions and procedures of the Craig case, the matter is not subject to reassessment merely because it was “pending” on appeal at the time that new Rule 238 became effective.

This is directly contrary to Ceresini v. Valley View Trailer Park, supra.

One further word must be added with respect to the majority’s discussion of Craig v. Magee Memorial Rehabili tation Center, 512 Pa. 60, 515 A.2d 1350 (1986), and whether the trial court complied with the mandate of Craig. In Ceresini, supra, 380 Pa.Super. at 419, 552 A.2d at 259 we noted:

Since we must assume that the new Rule 238 is simply the embodiment of the changes contemplated by our Supreme Court in Craig, we see no reason why the scope of its effectiveness should be different from that enunciated in Craig.
Moreover, whether or not we apply the new Rule 238 to cases on appeal, the result is the same for if we were to ask if the lower court properly complied with the requirements of Craig, logically we would be compelled to find that the new Rule 238 is a specific promulgation of the Supreme Court’s intention as set forth in the Craig opinion.

Order reversed and case remanded for the assessing of delay damages in accordance with new Rule 238. We relinquish jurisdiction.

POPOVICH, J., files dissenting opinion.

POPOVICH, Judge,

dissenting:

Albeit I agree that the order of the Court of Common Pleas of Clinton County, directing the defendant/S. & L. Service Company to pay delay damages on a verdict of $283,281.43 entered in favor of the plaintiff/Betty J. Baker, Executrix of the Estate of Thomas Motel, deceased, requires reversal, I cannot join in the majority’s rationale for doing so.

The record discloses that on December 16, 1980, the plaintiff praeciped the prothonotary to issue a writ of summons against various defendants, one of which was S. & L. Service Company. Receipt of the writ by the defendant occurred on December 30, 1980. In turn, in March of 1981, a rule was served upon the plaintiff to file a complaint per Pa.R.Civ.P. 1037(a). Thereafter, on May 27, 1981, a complaint was filed in which the plaintiff alleged that on or about June 6, 1980, the decedent was attempting to load a roll of paper into a trailer by means of a “clamp truck” when “said trailer lurched back taking the clamp truck with it.” “The rear of the clamp truck dropped into the void created between the trailer and the dock, shearing a rear roll bar and causing it to jam against the driver’s seat”. Death by asphyxiation occurred when the decedent/driver was trapped between the clamp truck steering wheel and the loading dock. As stated more graphically in the complaint, the decedent was “suspended by the steering wheel superiorly by the mandibles and inferiorly by the thoracic region” resulting in his being squeezed between the two objects until he became unconscious and died.

In the first five (5) counts of the complaint, the plaintiff alleged that the defendant was guilty of negligence, gross negligence, breach of contract (third-party beneficiary), breach of warranty and misrepresentation of material facts upon which the decedent relied to his detriment. Identical allegations were made in counts VI-X against two of the defendant’s employees (Lester and Raymond Younkin). Next, the owner of the trailer (Milton Transportation) was alleged to be liable to the plaintiff’s decedent on theories grounded in negligence, breach of contract (third-party beneficiary), breach of warranty and products liability. Lastly, in the remaining counts, the manufacturers of the trailer (Strick Corporation) and the “forklift” (Eaton Corporation) were asserted to be accountable to the decedent’s estate on the basis of products liability and negligence.

On June 15, 1981, interrogatories were propounded by Strick Corporation to the plaintiff. On July 1, 1981, S. & L. Service Company filed an answer to the complaint. Eleven days later, the same party filed a praecipe to join the decedent’s employer (Hammermill Paper Company) as an additional defendant.

The other parties to the suit did not stand idly by, e.g., Milton Transportation filed its answer on July 24, 1981, denying the allegations in the complaint, and, in new matter, sought indemnification and/or contribution from Strick Corporation, the manufacturer of the trailer. Further, on August 4, 1981, the defendant and the Younkins filed a complaint against the additional defendant contending that, inter alia, under its contract with Hammermill Paper Company its sole obligation was to “spot” the trailers at the place and position designated by Hammermill Paper Company. Also, it was averred that Hammermill Paper Company was solely responsible for the injuries sustained by the plaintiffs decedent and his ensuing death, or, in the alternative, joint and severable liability with the other defendants, by way of indemnification and contribution, was argued.

Between September of 1981 and June of 1982, the parties engaged in the filing of answers, the presentment of interrogatories and the submission of responses thereto. Further, by the end of October, 1982, the trial court had granted Hammermill’s preliminary objections to its joinder as violative of the Workmen’s Compensation Act (77 P.S. § 481) and the plaintiff had amended its complaint to include a wrongful death count. No additional action took place until June of 1983, September of 1984 and March of 1985 when witnesses were deposed by the plaintiff and Strick Corporation.

Even though the plaintiff filed a praecipe for trial on May 27, 1986, interrogatories were still being filed as late as July of 1986 by Eaton and Strick Corporations. In the ensuing three (3) months, discontinuances were granted as to the Younkins, Milton Transportation, Eaton and Strick Corporations. Thus, when trial commenced on October 14, 1986, only S. & L. Service Company was listed as a party-defendant. After three (3) days of trial, the jury returned a verdict finding the defendant 72.5% and the decedent 27.5% negligent. As a result, the total verdict of $390,733.00 was molded by the court to $283,281.43 to reflect the percentage of negligence attributed to the respective parties.

In accordance with Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), the plaintiff filed a timely petition seeking the imposition of Pa.R.Civ.P. 238 delay damages “from June 6, 1981 through the date of the verdict, October 20, 1986.” Additionally, the plaintiff recounted that the defendant’s October 6, 1986 offer to settle for $30,000.00 vis-a-vis a demand of $90,000.00 was rejected. It also was averred that no delays (be they in the form of continuances, discovery or joinder of additional parties) could be assigned to the plaintiff. In answer, the defendant disassociated itself with any delays and asserted that the case would have been ready for trial after completion of the 1984 depositions had the plaintiff completed preparation of its expert witness reports before February and April of 1986.

To resolve any potential factual disputes attendant to the issue of delay damages, a hearing was conducted on December 10, 1986. As with any new procedure, the scope of the Rule 238 hearing was somewhat in doubt as evidenced by the remarks of counsel for the plaintiff, who stated: “I’m not exactly sure what it is the Craig case is looking for.” Continuing on this point, we observe that the trial court proffered that it believed Craig was “attempting to have the Court assess fault ... on some relative basis for the amount of time it took to bring the case to trial”, and this view obtained the concurrence of the defendant’s attorney. Counsel for the plaintiff thought otherwise in that he believed Craig “remove[d] the irrebuttable presumption that Rule 238 established ... the only relevant consideration” to be the amount of the defendant’s settlement offer and when it was made in calculating damages and replacing it with “a rebuttable presumption that the Plaintiff is entitled to delay damages unless the Plaintiff is at fault, actively at fault for delaying the case.”

The factors listed in Craig were found to be wanting by the hearing court; however, it believed, in its “judgment, ... the Court [was] to look at how much the Defendant benefited from the delay ... by having monies still in its purse____” Notwithstanding the divergence of views as to the thrust of Craig, the trial court, by opinion and order dated January 28, 1987, awarded the plaintiff delay damages. However, “it [was] the Court’s judgment that delay damages should be assessed no earlier than the time the matter was praeciped for trial by Plaintiff”, i.e., May 27, 1986.

By order of June 19, 1987, the parties stipulated to withdraw their respective post-trial motions and restrict the appeal, by the plaintiff, to inquiry on the propriety of the trial court selecting the plaintiff’s praecipe for trial as the commencement date for calculating the awarding of delay damages. Notice of appeal was taken timely from the order entered.

While this case was pending before Superior Court, the Pennsylvania Supreme Court, effective November 7, 1988, rescinded the former Pa.R.Civ.P. 238 and promulgated, in its stead, a new Rule 238. Its scope, as I read it, is such that it affects only cases “in which damages for delay have not been determined.” See new Rule 238(f). This has been elaborated upon in the “Explanatory Comment” portion of the new Rule as follows:

... The purpose of this provision [subparagraph (f) ] is to indicate that the rule applies to pending as well as future actions but not to pending actions in which the damages for delay have been determined under the provisions and procedures of the Craig case. Once damages for delay have been determined under Craig, those proceedings are final and are not to be reopened under this rule.

(Emphasis added)

I would interpret the preceding to mean that where Craig has been complied with in the evaluation of a plaintiff’s demand for delay damages, then the damages question can be considered to have been “determined under Craig”, rendering “those proceedings ... final and ... not to be reopened under th[e new] rule [238].” To hold otherwise would render the use of “pending” and “determined” in the Comment section of the new Rule mere surplusage. In other words, if a trial court’s decision regarding the issuance or non-issuance of delay damages is not to be equated with a “determination” on the issue of delay damages, then all cases in which a review of the trial court’s ruling was “pending” in an appellate court (be it Superior or Supreme) would automatically be subject to reassessment under the provisions of new Rule 238. Because such a conclusion would render ineffectual the language under the Comment portion of new Rule 238, that a “determination” of delay damages would insulate such a “determination” from further inquiry under the guise of new Rule 238 where the matter was “pending” review, I find a more common sense interpretation exists.

To-wit: Once damages for delay have been “determined” by a trial court, in accordance with the provisions and procedures of the Craig case, the matter is not subject to re-assessment merely because it was “pending” on appeal at the time that new Rule 238 became effective.

There is no indication in the new Rule that “determined” is to be an open-ended term requiring that litigants have their dispute “resolved” (i.e., by order entered by the Superior or Supreme Court, or having had the option to appeal further than the trial level chose not to do so) before the effective date of the new Rule to escape its application.

As stated quite clearly in the Comment section of new Rule 238, its applicability is reserved to “pending” actions in which delay damages have yet to be “determined’Vdecided under the provisions and procedures of the Craig case. At bar, the trial court, as well as the parties, made a concerted effort to conduct a hearing consistent with the “provisions and procedures of the Craig case.” An outgrowth thereof was the award of delay damages. Thus, although the case was “pending” before Superior Court at the time new Rule 238 became effective, I offer that one may not overlook the fact that the question of delay damages had been “determined” by the trial court consistent with the pronouncements of Craig, and, as always, subject to appellate review if sought by a disenchanted party. As such, under the facts here, I would not find new Rule 238 to be a vehicle by which the whole question of the entitlement to delay damages may be inquired into a second time.

More importantly, because of the narrowness of the issue sought to be reviewed (the commencement date for the calculation of delay damages and not whether they should have been granted in the first place), I see no need to remand for compliance with the provisions of new Rule 238. Even if, arguendo, a remand were required, I believe the result would remain the same since the commencement date under the former Rule 238(a)(2) has been retained in new Rule 238(a)(2)(i) for actions begun before August 1, 1989, which the instant suit is one such action.

Neither party disputes the imposition of delay damages. All that is assailed on appeal is whether the trial court erred in computing the date from which Rule 238 delay damages should run. (See Appellant’s Brief at 3; Appellee’s Brief at 1) Stated more clearly, the propriety of the time-frame chosen by the trial court for tabulating prejudgment interest under former Rule 238 is challenged, i.e., the plaintiff’s praecipeing the case for trial. Thus, we need not determine, first, whether the defendant was at “fault”, as that term has been defined by Craig, so as to render the imposition of delay damages proper.

Consistent with the factors recited in Craig, I would examine the length of time between the starting date and verdict: (1) the cause of action arose on June 6, 1980; (2) one year after the cause of action accrued would bring the period under Rule 238(a)(2) to June 6, 1981; and (3) since the filing of the complaint took place on May 27, 1981, it would be considered prior in time and not a proper period to be looked at under Rule 238(a)(2), or new Rule 238(a)(2)(i).

The issue posed is a straight-forward one and does not require us to delve into the justification for the issuance of delay damages. Again, I emphasize that the starting date for the entry of delay damages is the only issue preserved for our review, and this was accomplished by agreement of both parties involved in this appeal. Accordingly, because the verdict was entered on October 17, 1986 (see Record No. 81), the time elapsing between the starting date and verdict would be five (5) years and four (4) months.

As for the trial court’s rationale for commencing the calculation of delay damages when it did, we look to its opinion at pages 8-9. Therein, the trial court wrote on this subject:

After considering the factors discussed herein, it is the Court’s judgment that delay damages should be assessed no earlier than the time the matter was praeciped for trial by Plaintiff. The apportionment of damages in a case such as this involving multiple parties and multiple theories of liability is of course not an easy task and the decision in Craig, supra does not provide any specific guidance in carrying out this judicial function. The matters discussed in Craig lead the Court to conclude however that little if any early delay can be attributed to Defendant S & L Service Company and that the earliest any responsibility should be assessed would be as of the time the matter was praeciped for trial on May 27, 1986.

I disagree with the trial court as to the commencement date for tracking former Rule 238 damages. As is admitted by the trial court in its own reconstruction of the facts, the September 9, 1984, demand, of the plaintiff for $90,000.00 was reasonable and the defendant/carrier “exhibited gross unreasonableness in responding to the settlement through its multi-tiered bureaucracy.” As such, the trial court concluded, albeit not explicitly so stated, that “fault”' had been proven and assignable to the defendant in delaying the case to completion sooner than it should have ended.

In so holding, I would find it notable that the Supreme Court in Craig, in delineating those factors to be weighed in considering the imposition of delay damages, referred to the “length of time between the starting date and the verdict” to be extant and cited its source (Rule 238(a)(2)) to that effect — now located at new Rule 238(a)(2)(i). Accordingly, Craig has not altered the commencement date for the running of delay damages. If such was the intent, the Craig Court could have very easily disapproved of the starting date for delay damages under new Rule 238 and in its place assigned a period in time to be determined by the trial court which coincided with the point “fault” had been found to have existed and running forward from said time until the verdict was issued. Given the clear language in the new Rule 238 preserving the commencement date for the calculation of delay damages under former Rule 238, (see Comment to new Rule 238), I see no reason not to follow the time-table enunciated in former Rule 238(a)(2), and continued in new Rule 238(a)(2)(i), to calculate delay damages.

To the extent that the order of the trial court deviates from my position, I would reverse and remand the case to remedy the inconsistency as herein observed. Since the majority concludes otherwise, I respectfully dissent.

      . The relevant provisions of the former, but yet still applicable, Rule 238(a)(2) read:
      (a) ... in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court ... shall
      ******
      (2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision.
      In comparison, the relevant portions of new Rule 238(a)(2)(i) provide:
      (a)(2) Damages for delay shall be awarded for the period of time (i) in an action commenced before August 1, 1989, from the date the plaintiff first filed a complaint or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision[.]

      . The same result would obtain under new Rule 238(a)(2)(i).

      . Even if the other criteria enunciated by Craig were to be examined, as factors to be weighed in determining the propriety of the issuance of delay damages, our conclusion would remain intact.
      For instance, our Supreme Court cautioned that the lapse-time between the starting date and the verdict, in awarding delay damages, was but one factor, and not the sole criterion, upon which a determination to impose delay damages is to be made. See Craig, supra, 512 Pa. at 66, 515 A.2d at 1353.
      As for criterion #2, neither party was responsible for the securement of a continuance. Nor is there record evidence that any of the litigants failed to comply with any request for discovery — criterion #3.
      Turning to criterion # 4, delay necessitated by the joinder of additional parties, it is learned that the defendant praeciped to join the plaintiff’s employer (Hammermill Paper Company) as an additional defendant on July 21, 1981, and a complaint to that effect was served on August 10, 1981. The record reveals that the plaintiff, Eaton Corporation and the Younkins followed suit. However, between September of 1981 and June of 1982, the parties were preoccupied with the presentment of interrogatories and the filing of responses thereto. Thus, no time appears to have been expended on the additional defendant issue until June of 1982. On that occasion, Hammer-mill Paper Company field preliminary objections to its joinder as violative of, inter alia, the Workmen’s Compensation Act. Following the submission of briefs, the trial court issued an order dated September 17, 1982, sustaining Hammermill Paper Company's preliminary objections. Accordingly, there is the passage of four (4) months consumed in the resolution of an additional defendant issue. Now, as for assigning accountability for the delay, if one were to do so, the participation of the plaintiff and the defendant in this aspect of the case should prompt this Court to find both at “fault” in protracting the matter. Therefore, I would dismiss the effect of the delay attributed to the additional defendant issue as being neutralized by the involvement of both parties.
      I would add one additional factor in assessing the justification for the awarding of delay damages, under the catch-all "other relevant factors” made mention by Craig, i.e., the reasonableness of the "offer" and “demand" by the respective parties. The trial court discussed the matter at pages 8-9 of its opinion, wherein it concluded that the carrier (Defendant S. & L. Service Company) "exhibited gross unreasonableness in responding to the settlement through its multi-tiered bureaucracy____ If ever a carrier deserved to be penalized for unreasonableness and obstinance in settling a case this would be the case.” I see no reason to disagree.

      . I would note, even if, arguendo, one were to look to new Rule 238 to determine whether delay damages should be awarded, the defendant would not be any better off since it failed to make a “written” offer of settlement in a specified sum with prompt payment to the plaintiff, nor did this transpire in any other fashion consistent with the requirements of new Rule 238(b)(1). (See Appellant’s Brief at 8) Thus, I perceive that the result would not be altered whether former or new Rule 238 was the guiding light in an assessment of the entitlement to and run-date for delay damages.


author: OLSZEWSKI, Judge:

text:
    554 A.2d 571
    Mary C. ANDURSKY, Appellee, v. Michael A. ANDURSKY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1988.
    Filed Feb. 28, 1989.

      Carmine V. Molinaro, Jr., Connellsville, for appellant.
    Carl P. Izzo, Jr., Uniontown, for appellee.
    Before OLSZEWSKI, DEL SOLE and KELLY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order enforcing provisions of a property settlement agreement. Appellant raises three issues for our review. Because the trial court lacked jurisdiction to hear appellant’s petition for enforcement of court order, wé do not reach the merits of this appeal and vacate the trial court order.

The parties were divorced by decree entered July 11, 1984. Incorporated in the divorce decree was the property settlement agreement that was executed on June 4, 1984. Paragraph one of the agreement provides:

It is specifically understood and agreed by and between the parties hereto, and each of the said parties do hereby warrant and represent to the other, that the execution and delivery of this Agreement while a divorce action is presently pending is not predicated upon nor made subject to any agreement regarding the institution, prosecution, defense or for the non-prosecution or non-defense of any action for divorce....

Paragraph 16 states, “This Agreement shall be incorporated in the Divorce Decree, but the Agreement shall not merge with said divorce.” The divorce decree of July 11,1984 also states that the agreement is incorporated by reference.

On March 4, 1988, appellee filed a petition for enforcement of court order, requesting, inter alia, arrearages in the amount of $3,800.01, and attachment of appellant’s pension benefits to avoid further failure to pay. The basis of the petition was paragraph six of the agreement which reads:

Wife agrees to waive all her rights to temporary or permanent alimony. However, it is expressly understood and agreed by and between the parties, that when the Husband receives pension benefits at the time of his retirement, he shall pay out of such pension benefits, the sum of $150.00 a month as alimony to his wife. Said payments shall be conditioned on the Wife remaining unmarried. If the Wife should remarry after the signing of this Agreement, she shall forfeit all rights to her Husband’s pension benefits.

In August, 1985, appellant discontinued employment after his employer, Anchor Glass Container, informed him that he could no longer continue with the company due to his physical condition. The company allowed him to retire and receive his pension. Appellant received payments pursuant to an insurance policy until April, 1986 and, thereafter, received monthly company pension benefits in the amount of $631.89. Appellant never made payments pursuant to paragraph six of the agreement. By order of March 30, 1988, the trial court granted appellee’s relief by attaching appellee’s pension benefits. On the same date, the trial court entered judgment, and this timely appeal followed.

Initially, we note that the failure of either party to raise the issue of lack of subject matter jurisdiction does not prevent this Court from raising the issue sua sponte. Pa.R.C.P. 1032(2); Bolus v. United Penn Bank, 360 Pa.Super. 234, 238-239, 520 A.2d 433, 435 (1987) (“... fact that none of parties below raised the issue of lack of subject matter jurisdiction presents no obstacle to our resolution of this case on that ground.”). Based on our decision in Sonder v. Sonder, 378 Pa.Super. 474, 496, 549 A.2d 155, 165 (1988) (en banc), we conclude that the trial court in the instant case did not have subject matter jurisdiction of this action.

In Sonder, our Court recently held that an agreement that speaks of incorporation but rejects merger is not enforceable under the Divorce Code. That is, the remedies of attachment of the person and wage attachment are not permissible when the agreement rejects merger. Id.; Dechter v. Kaskey, 379 Pa.Super. 45, 49, 549 A.2d 588, 590 (1988). Such agreements, however, are governed by the law of contract, and are still enforceable in an action in assumpsit or in equity by specific performance although the remedies for enforcement of support orders are not available. Id., 379 Pa.Superior Ct. at 496, 549 A.2d at 165. In Sonder, appellant filed a petition for arrears and reduction based upon the provisions of a separation agreement incorporated in a divorce decree. The agreement stated in pertinent part:

[A]nd it is further ordered and adjudged and decreed, pursuant to Pa.R.C.P. 1920.1 et seq. and Act 26-1980, 23 P.S. § 1, et seq., the Divorce Code that the terms, provisions, and conditions of certain property settlement agreement between the parties dated November 29, 1983, and attached to this decree and Order as exhibit A is hereby incorporated into this decree and Order by reference as fully as though the same were set forth at length. Said agreement shall not merge but shall survive this decree and Order.

Id., 379 Pa.Superior Ct. at 486, 549 A.2d at 161. This Court concluded that the trial court had properly dismissed husband’s petition for lack of jurisdiction, since the unmerged separation agreement survived as a contract and did not become part of the court order. In reaching this conclusion, the Bonder Court noted that a support agreement and a support order are enforceable in distinct fashions and are governed by clearly distinguishable principles. Id., 879 Pa.Superior Ct. at 487, 549 A.2d at 162.

Instantly, we find that the language of the Bonder agreement is similar to that in the agreement sub judice and, therefore, the agreement is a contract governed by principles of contract law. Because this agreement was not merged with the divorce decree, it is not a court order and the extraordinary powers flowing from a court order are not available.

Appellee brought this matter before the trial court in the form of a Petition for Enforcement of Court Order, and as a remedy, the trial court garnished appellant’s pension benefits. Clearly, the court treated the agreement as a support order enforceable by the statutory remedy of attachment. See, Pa.R.C.P. 1910.22 (Attachment of Wages, Salary and Commissions). The wages, salaries and commissions of individuals, however, are exempt from garnishment except upon an action or proceeding for support or for board for four weeks or less. 42 Pa.C.S.A. § 8127. Consequently, because this agreement is not a support order and because the remedy of attachment is not available on a contract action apart from an action for board for four weeks or less, the attachment of appellant’s benefits is prohibited. In addition, if the agreement had been merged in the court order, which would have permitted the type of enforcement sought, the agreement could have been modified based upon the changed circumstances of the party. This was not considered by the trial court. We, therefore, vacate the trial court order and dismiss the action for lack of subject matter jurisdiction.

Trial court order vacated and case dismissed. Jurisdiction relinquished.

      . Appellant contends that the trial court erred in:
      (1) interpreting the clause "at the time of his retirement" to include “forced, involuntary withdrawal from employment at age 5[2] due to disability” (Appellant’s brief at 10);
      (2) interpreting the term "pension benefits" to include a company pension only, and to exclude a social security pension; and
      (3) refusing to admit parole evidence of appellant’s understanding of paragraph six of the property agreement.