text:
    443 A.2d 792
    COMMONWEALTH of Pennsylvania, v. James Patrick REARDON, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Dec. 18, 1981.
    Reargument Denied April 21, 1982.

      James F. Geddes, Jr., Wilkes-Barre, for appellant.
    Chester Muroski, District Attorney, Wilkes-Barre, submitted a brief on behalf of Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   PER CURIAM:

Judge Toole, sitting non-jury, found appellant guilty of criminal conspiracy, aggravated assault, and recklessly endangering another person. Appellant was sentenced to pay a fine of $1,000 and to serve three concurrent terms of five years on probation. Appellant contends on this app eal, that:

A. The testimony did not sustain the convictions;

B. The court improperly- permitted the prosecution to reopen its case in chief;

C. The court made certain erroneous rulings on the admission of physical evidence, and in the limiting cross-examination;

D. The post trial motions were improperly denied; and

E. The court abused its discretion in imposing sentence.

A. Contention A, in substance, claims that the Commonwealth’s case in chief, plus the appellant’s testimony in his own defense, does not establish beyond a reasonable doubt that appellant was a conspirator or co-actor with one Dr. Broom in the illegal acts complained of.

The essential facts as summarized by Judge Toole in his opinion at pages 2 and 3 are as follows: One Walburn was on unfriendly terms with Dr. Broom; the former blamed Broom for Walburn’s marital difficulties. Appellant Rear-don was on friendly terms with Broom and living in Broom’s home preceding the events complained of. On October 29, 1978, at 3:00 A.M. and again at 4:00 A.M., police came to Walburn’s home and verified his complaints that shots had been fired into his home. After the second incident, the police staked out the area, and shortly observed two persons in a car pull up in front of Walburn’s home, heard a shot fired from the car and saw the car pull away at a rapid rate of speed. The police gave chase and stopped the car and apprehended its occupants. The driver was Broom. The passenger was appellant. Within the car appellant had positioned between his legs a rifle approximately 42 inches in length. Appellant had been at a bar in Broom’s company earlier that night and had ridden around with Broom in the car for about NA hours before their arrest.

In evaluating the sufficiency of the evidence we must view the record in a light favorable to the Commonwealth, the verdict winner, drawing reasonable inferences favorable to the verdict winner and determine whether such evidence supports the guilty verdicts beyond a reasonable doubt. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979). We agree with the lower court that the verdict is supported by the evidence even though no evidence was presented as to whether Broom or appellant fired the shots. The Commonwealth need not prove which actor fired the shots, as both were apprehended fleeing from the scene and it was reasonable to infer that they were acting in concert. See: Commonwealth v. Bradley, 481 Pa. 223, 392 A.2d 688 (1978), Commonwealth v. Leach, 455 Pa. 448, 317 A.2d 293 (1974).

B. At the apparent close of the Commonwealth’s case, the prosecution offered into evidence the rifle claimed to have been found in the car. The appellant objected on the ground that the “chain of custody” had not been established. (N.T. 46) The court sustained the objection, but afforded the Commonwealth the opportunity to call witnesses to establish the chain. For this purpose the case was adjourned from 3:26 P.M. one afternoon to the next morning at 9:00 A.M., and the necessary police officers were called as witnesses.

“In a non-jury trial, until a verdict has been rendered, it is within the discretion of the trial judge to allow either side to reopen its case to prevent a failure or miscarriage of justice.” Commonwealth v. Ridgely, 243 Pa.Superior Ct. 397, 403, 365 A.2d 1283 (1976). In the circumstances of this case, we find no abuse of such discretion.

C. Contention C is that the court erred in receiving into evidence certain physical exhibits and in limiting cross-examination.

Particularly, appellant argues that the Commonwealth failed to establish, “as a matter of reasonable certainty” that various physical exhibits had not been adulterated or misidentified. He contends that too many people had access to evidence lockers and that proper receipts were not produced to establish the chain of custody.

The admission of demonstrative evidence lies within the discretion of the trial court, Commonwealth v. Ford, 451 Pa. 81, 85, 301 A.2d 856, 858 (1973). “The Commonwealth need not show a complete chain of custody; it is sufficient to show evidence establishing a reasonable inference that the identity and condition of the evidence have remained the same from the time it was received until the time of trial. Commonwealth v. Mayfield, 262 Pa.Superior Ct. 96, 396 A.2d 662 (1978)”; Commonwealth v. Wike, 269 Pa.Superior Ct. 141, 145, 409 A.2d 104, 106 (1979). Appellant’s particular objection at trial pertained to the slugs found at the victim’s residence. While proof of the chain of custody is somewhat sloppy it is sufficient and we find no abuse of discretion in allowing the evidence to be admitted.

Also, appellant complains that he was prevented from asking Walburn whether Walburn had threatened Broom, or had done “anything to Broom’s property” or whether Walburn thought Broom had emotional problems. We agree with the trial judge that the information sought by those questions had no relationship to the issues involved in the case. In any event, appellant’s counsel was eventually permitted to ask Walburn whether he had threatened Broom.

D. This allegation of error is not specifically argued on this appeal, instead appellant makes a general claim that his post-verdict motions were improperly denied. He apparently claims that as one or more of his forementioned claims has merit, the court erred in denying his motion. As we find to the contrary above, we find no merit to the present contention.

E. Appellant contends that under the circumstances the lower court abused its discretion in sentencing appellant to five (5) years of probation and fining him $1,000. He also notes that the sentence on reckless endangerment was improper. He states that the sentence imposed was for a first degree misdemeanor while the crime charged was a misdemeanor of the second degree.

Sentencing is initially vested in the sound discretion of the trial judge, subject to our modification only if there is a manifest abuse of discretion. Commonwealth v. Valentin, 259 Pa.Superior Ct. 496, 393 A.2d 935 (1978). Much of appellant’s argument pertains to his innocence or guilt. Such claims are not appropriate for consideration on review of a sentence as guilt or innocence has already been determined. As to the period of probation imposed, we find that the court adequately stated its reasons on the record. The court noted the defendant had a “distinguished background” and no prior record, however the court also weighed the seriousness of discharging a firearm into an occupied residence. The court believed that at least partial confinement was required and placed appellant on probation. We agree, and can find no abuse of discretion. However, the trial judge, in sentencing defendant to pay a fine, failed to comply with 18 Pa.C.S.A. § 1326 (now 42 Pa.C.S.A. § 9726). Therefore, we must remand to the lower court, for a consideration of appellant’s financial status and its reasons for imposition of the fine.

The Commonwealth concedes that the maximum punishment for recklessly endangering another person is two (2) years, but merely goes on to state that the question has not been raised in prior proceedings. Illegality of a sentence is not a waivable issue. Commonwealth v. Welch, 291 Superior Ct. 1, 435 A.2d 189 (1981). Therefore, as appellant’s claim is correct, we must vacate the judgment of sentence for recklessly endangering another person and remand for resentencing on that charge. See: Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978).

As to the convictions for criminal conspiracy and aggravated assault, the judgment of sentence is affirmed; however, we remand for a statement of reasons for the imposition of the fine. If the lower court should determine that the fine imposed was improper, the court shall then vacate and/or impose an appropriate fine. On the charge of recklessly endangering another person, the judgment of sentence is vacated and the case is remanded for resentencing on that one charge.

      . 18 Pa.C.S. § 903.

      . 18 Pa.C.S. § 2702(a)(4).

      . 18 Pa.C.S. § 2705.

      . Appellant denied any knowledge of any events, including the presence of the rifle in the car until he said he heard the report of the gunfire and saw the rifle in Broom’s hand. Broom fled the jurisdiction after his arrest and has not been brought to trial.

      . The slugs were removed from the residence, there was no indication they were marked at that time. An officer took the slugs to the station and turned them over to another officer. No receipt was exchanged. The evidence was logged in, though the log was not produced at trial. The evidence was placed in a locker, to which five persons have keys. A member of the state police, picked up the evidence for analysis, he used his key to open the locker; no receipt was made. The evidence was taken for examination where the chain of custody is unquestioned.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    443 A.2d 795
    COMMONWEALTH of Pennsylvania, Appellant, v. Peter IACAVAZZI, Northeastern Land Development Company, Inc., Peter Iacavazzi, President, and Lackawanna Refuse Removal, Inc., Peter Iacavazzi, President.
    Superior Court of Pennsylvania.
    Argued May 13, 1981.
    Filed Dec. 29, 1981.
    Reargument Denied April 16, 1982.

      Ernest D. Preate, Jr., District Attorney, Harrisburg, for Commonwealth, appellant.
    Paul Mazzoni, Scranton, for appellees.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

The Commonwealth contends that the lower court erred in suppressing evidence. Because we agree with the lower court that the Commonwealth failed to meet its burden of going forward with evidence to meet appellees’ objections to the search warrant and its execution, we affirm.

After, indicting appellees for violations of the Clean Streams Act, the Commonwealth obtained a warrant to search appellees’ property on the basis of affidavits and grand jury transcripts. In executing the search, the Commonwealth unearthed several barrels of industrial wastes. Appellees filed an omnibus pre-trial motion seeking, inter alia, to suppress the evidence obtained as a result of the search. Appellees’ motion alleged that probable cause was lacking because: (1) none of the documents showed probable cause on their face; (2) the premises were not secured; and (3) the warrant did not specify when the evidence had been placed on the premises. Appellees alleged also that they were denied their right to be present during the search and that unauthorized persons performed the search. In a supplemental motion, filed with leave of court, appellees alleged that the time allowed by the warrant for conducting the search exceeded the two-day limitation specified in Pa.R. Crim.P. 2005(d), and that the search exceeded even the limitation in the warrant. The lower court subsequently commenced three days of hearings on the omnibus motions. During these hearings the lower court reminded the Commonwealth that “there are certain burdens that you have anytime a motion for suppression is filed.” (N.T. January 22,1981 at 148). Despite the admonition the Commonwealth introduced no evidence whatsoever—not the warrant, nor the affidavits and transcripts, nor any testimony—concerning appellees’ suppression motions. The lower court thus granted appellees’ suppression motion because the Commonwealth had failed to meet its burden of going forward with evidence to meet appellees’ objections to the warrant and its execution. The Commonwealth then took this appeal.

The Commonwealth contends first that it should be granted a second opportunity to present evidence justifying the warrant and its execution. The Commonwealth argues that the three-day pre-trial hearing was not, in fact, an evidentiary hearing on appellees’ suppression motion. We cannot review the lower court’s finding of fact on this matter in this Commonwealth appeal.

It is only where the question involved is purely one of law that the Commonwealth may appeal from an adverse ruling in a criminal case. ... Where . .. the reason for the action of the trial court, whereof the Commonwealth complains, is based upon an admixture of law and fact, the Commonwealth is without any right to appeal therefrom. ...

Commonwealth v. Melton, 402 Pa. 628, 629, 168 A.2d 328, 329 (1961). See also Commonwealth v. Ray, 448 Pa. 307, 312, 292 A.2d 410, 413 (1977); Commonwealth v. Kunkel, 254 Pa. Superior Ct. 5, 385 A.2d 496 (1979); Commonwealth v. DeFelice, 248 Pa. Superior Ct. 516, 522, 375 A.2d 360, 363 (1977). By its suppression order the lower court impliedly found that the hearing on appellees’ omnibus motions was indeed an evidentiary hearing. We are bound by that finding of fact on this appeal.

The Commonwealth contends next that its failure to meet its burden of going forward with evidence at the hearing did not afford a basis for the suppression order. We disagree. It is well-settled that when a defendant files a motion to suppress evidence the Commonwealth bears a burden of going forward to establish that the allegedly suppressible evidence was not obtained in violation of defendant’s rights. Commonwealth v. Ryan, 268 Pa. Superior Ct. 259, 262-64, 407 A.2d 1345, 1347 (1980), remanded, 489 Pa. 221, 414 A.2d 37 (1980), on remand, 277 Pa. Superior Ct. 262, 419 A.2d 762 (1980); Commonwealth v. Marini, 251 Pa. Superior Ct. 201, 207, 380 A.2d 448, 450 (1977); Commonwealth v. Dixon, 226 Pa. Superior Ct. 569, 572, 323 A.2d 55, 57 (1974). Merely introducing the warrant and affidavits may be sufficient to meet a “bald statement” that the Commonwealth failed to show probable cause. Commonwealth v. Ryan, 268 Pa. Superior Ct. at 264-66, 407 A.2d at 1348. When the defendant specifically complains of defects in the warrant or its execution, he thereby alerts the Commonwealth of a particularized burden of proof on those objections. To satisfy that burden the Commonwealth must introduce witnesses subject to the defendant’s cross-examination. Commonwealth v. Ryan, supra. Appellees made both general and specific objections to the warrant and its execution. The Commonwealth did not even introduce the warrant or affidavits or present any witnesses and thus utterly failed to meet even the lesser burden of rebutting appellees’ general objections. A fortiori it also failed to meet its burden concerning appellees’ specific objections. Accordingly the lower court did not err in suppressing the evidence.

The Commonwealth contends finally that prior appellate decisions entitle it to yet another hearing. We disagree. Each of the prior decisions affording the Commonwealth an opportunity to cure omissions of proof at a suppression hearing involved controlling factors not present here. In Commonwealth v. Ferguson, 231 Pa. Superior Ct. 327, 331 A.2d 856 (1974) this Court remanded to allow the Commonwealth to cure the purely formal defect of failing to introduce the warrant into evidence. The Commonwealth there had introduced affidavits and testimony and had informally provided the court and the defendant with a copy of the warrant. Though the Commonwealth here apparently had provided the court and appellees with the warrant and affidavits, it introduced no evidence whatsoever despite ample opportunity to do so and despite having been warned of its burden of going forward with evidence. In Commonwealth v. Ryan, supra, this Court reversed an order denying defendant’s suppression motion because the Commonwealth had failed to meet the defendant’s specific objections by introducing testimony in addition to the warrants and affidavits. After remand this Court clarified its order to allow the Commonwealth to introduce evidence at a second suppression hearing before retrial. Unlike in Ryan, the Commonwealth here met no part of its burden. In Commonwealth v. Marini, supra, this Court held that the suppression court abused its discretion by suppressing evidence on the ground that the Commonwealth had failed to introduce sufficient testimony to rebut defendant’s vague, general objections. The Commonwealth in Marini had introduced the warrant, affidavits, and testimony to authenticate them. Unlike in Marini, appellees here made both general and specific objections, and the Commonwealth made no effort to meet even appellees’ general objections. Finally, in Commonwealth v. Branch, 292 Pa. Superior Ct. 425, 437 A.2d 748 (1981) this Court held a lower court acted within its discretion in vacating a suppression order and reopening a suppression hearing to hear additional testimony from an affiant-witness on critical allegations in the warrant. Unlike in Branch, the Commonwealth here never placed the warrant or affidavit or any testimony into evidence. We find no abuse of discretion in the lower court’s decision to uphold the finality of its order. See Pa.R.Crim.P. 323(j) (order denying motion to suppress is final, except upon a showing of evidence that was theretofore “unavailable”).

Order affirmed.

VAN der VOORT, J., concurred in the result.

      . Appellees were charged with: unlawfully discharging inadequately treated industrial waste into the underground workings of abandoned mines in violation of the Clean Streams Law, Act of June 22, 1937, P.L. 1987 as amended, 35 P.S. §§ 691.307, 691.602(b); unlawfully disposing of industrial, liquid and hazardous waste in violation of the Pennsylvania Solid Waste Management Act, Act of July 31, 1968, P.L. 788, No. 241, 35 P.S. §§ 6009(4), 6014; discharging industrial pollutants into a stream without a permit from the Department of Environmental Resources, in violation of the Clean Streams Law, supra; unlawfully establishing and maintaining a public nuisance in violation of 18 Pa.C.S.A. § 6504; and criminal conspiracy to commit the above acts in violation of 18 Pa.C.S.A. § 903.

      . Simultaneously with its notice of appeal, the Commonwealth filed a petition for reconsideration, which petition the lower court denied, thus terminating its power over the case and bringing the matter before this Court. See Pa.R.A.P. 1701(b).
      It is well-settled that the Commonwealth may appeal from a pre-trial order suppressing evidence if the appeal involves a pure question of law, if the order substantially handicaps or effectively terminates the prosecution, and if the Commonwealth articulates in its brief and includes a brief explanation not inconsistent with the record why that is so. See Commonwealth v. Barnett, 471 Pa. 34, 369 A.2d 1180 (1977); Commonwealth v. Kunkel, 254 Pa. Superior Ct. 5, 385 A.2d 496 (1978). The Commonwealth’s brief here describes the evidence obtained as a result of the search warrant, its relationship to the case, and the fact that it “is the only direct evidence the Commonwealth has.” Commonwealth Brief at 11. Our review confirms these averments are consistent with the record. Accordingly, we have jurisdiction of the Commonwealth’s appeal.

      . Because the Commonwealth failed to meet its burden of coming forward with evidence to refute appellees’ general objections, we affirm. We note additionally that appellees’ suppression motion was sufficiently specific to raise certain factual issues which the Commonwealth failed to rebut. See Pa.R.Crim.P. 306(b); Commonwealth v. Hall, 451 Pa. 201, 206, 302 A.2d 342, 345 (1973). Similarly, appellees did not waive any issues raised in their omnibus motions by failing to address them in their pre-hearing brief. A defendant need only state his specific objections with supporting facts in an omnibus pre-trial motion to alert the Commonwealth of its particularized burden of proof. Pa.R.Crim.P. 306(b). See Commonwealth v. Ryan, supra.

      . By way of contrast, the Commonwealth did introduce testimony concerning a co-defendant’s suppression motion. We are not presented any issues concerning that co-defendant’s suppression motion.


author: HESTER, Judge:

text:
    443 A.2d 799
    Debra KLEIN, a Minor by her Parents and Natural Guardians, Richard Klein and Rochelle Klein, Appellants, v. Ralph J. CISSONE and Barbara Cissone, Individually and Trading as Pickwick Nursery School.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed Feb. 5, 1982.
    Reargument Denied April 16, 1982.

      John J. Tinaglia, Philadelphia, for appellants.
    John J. Hart, Sellersville, for appellees.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   HESTER, Judge:

Presently before the court is appellants’ appeal from the order of the lower court dated February 20, 1980 wherein the court made its previously issued rule absolute.

We affirm.

The critical issues before us are: (1) Did the parties herein affect a compromise settlement of a minor’s claim or merely an executory accord; and (2) Assuming the parties effectuated a compromise settlement, may same be revoked or set aside under the facts presented in the case at bar?

The genesis of this case dates back to July 28, 1968 when then four-year old appellant minor, Debra Klein, was allegedly thrown from appellees’ nursery school van. In December, 1969, appellants filed suit.

Prior to trial, a pretrial conference was held before Judge Robert M. Mountenay on October 14, 1975. The court’s signed report of that pretrial conference noted that the injuries sustained by the minor appellant were “mouth injuries, front middle teeth knocked out. Orthodontia may be required with respect to permanent teeth. Minor appellant was five years old at the time of injury and is presently 12 years old.” (R.3a). The special damages noted were “past medicals $384.68. Future' orthodontic work estimated at about $3,000.00.”

A jury trial was convened on March 10,1976 before' Judge Mountenay (now deceased). On that date, the only witness who testified was Dr. Edward Cherkas, an orthodontist, who testified that he examined the minor appellant following the accident in 1968, a few more times that year, and on March 9, 1976 (the day before the trial). Dr. Cherkas confirmed the fact that as a result of the July 28, 1968 accident, minor appellant lost five “baby teeth”. Thereafter, the doctor identified two conditions from which minor appellant was suffering, to-wit: “tongue thrust” and “teeth protrusions”. However, the doctor was unable, with a reasonable degree of medical certainty, to attribute either of those two problems to the July 28, 1968 accident. As a result of the doctor’s equivocations, the court sustained appellees’ objections to the further testimony of Dr. Cherkas with regard to the issué of causation. Faced with this legal dilemma, appellants’ then counsel requested a short recess, during which the alleged or purported compromise settlement between the parties was reached. When court resumed and thé jury returned, the trial court explained to the jury that a settlement had been reached. Procedurally, appellees then moved for a mistrial which was granted.

After the jury was excused, the court proceeded to hold a hearing on the proposed compromised settlement.

THE COURT: Now we’re going into a proceeding to approve a minor’s compromise and in the first place, we’re certainly going to incorporate into the record what we already have in the record by reason of the trial.

With that opening, the court on the record set forth appellants’ theory of liability as well as an itemization of incurred medical expenses and an estimate of further cosmetic and orthodontal expenses.

Thereafter, appellant Rochelle Klein, mother of minor appellant, was sworn and testified as follows:

You heard me recite certain facts since the mistrial was declared and also heard Mr. Foy (appellants’ counsel) recite certain facts since the mistrial has been declared and are you in agreement with those facts as correct?
THE WITNESS: Yes.
THE COURT: Now it’s my understanding that the defendant is offering $6,000.00 for a full settlement of all claims and is that your understanding as well?
THE WITNESS: Yes. . . .
THE COURT: Now I believe that it was your lawyer’s recommendation that in view of the probable difficulties which arose not only out of the liability aspect of the case, but also out of the damages aspect of the case as evidenced by Dr. Cherkas’ testimony, that you would be well advised to settle for $6,000.00; is that correct?
THE WITNESS: Yes.
THE COURT: Now the question is not whether you like the settlement for $6,000.00 or whether you think it’s enough, but in view of the difficulties which have occurred, are you willing to settle for $6,000.0(1!
THE WITNESS: Reluctantly.
THE COURT: It doesn’t make any difference whether you are reluctant or not. My advice is that you’re getting more than you deserve, but that’s all right and not knowing what the jury would award, I do know that your lawyer has gone over the evidence with you and the law with respect to liability and let me tell you that if this was tried without a jury as some cases are tried, you wouldn’t get $6,000.00 out of me.
Now on the basis of that, you must understand however, that this would be a full, final and complete settlement and despite any difficulties which might arise in the future, although I understand none are anticipated that you don’t know about already, there would be no further recovery from the defendant; do you understand that?
THE WITNESS: Yes. (Emphasis added) (R.96a)

Then, while still on the record, appellants’ counsel represented to the court that he spoke with Richard Klein (the minor appellant’s father who was at that time hospitalized) and that he (Richard Klein) joined in the agreement to settle the case for $6,000.00. This fact was confirmed by Rochelle Klein.

Thereafter, the court stated:

THE COURT: All right, for the record, I will approve the minor’s compromise on that basis, but would appreciate Mr. Foy, if you would prepare a written order that I can sign. (Emphasis added).

Following the above detailed hearing, appellants refused to execute the prepared general release form pursuant to the terms of the compromise settlement. On April 29, 1976, appellees filed a Petition for Rule to Show Cause why appellants should not execute the appropriate general release form of all claims and accept the sum of $6,000.00 in full settlement of appellants’ claim. On May 21, 1976, appellants (by newly retained counsel) filed an answer to the petition alleging inter alia that the preparation of minor appellant’s claim by prior counsel was “wilfully inadequate to protect the interests of the minor (appellant)”. In addition thereto, appéllants alleged that “because of facts concerning the minor (appellant’s) medical condition discovered subsequent to the settlement, appellants refused to consent to the settlement.” Finally, appellants allege that the settlement hearing did not comply with the requirements of Pa.R.C.P. 2039 and, therefore, was not binding on the appellant.

Depositions were then taken of Mr. Foy (appellants’ prior counsel), appellant Richard Klein and Dr. Edward Cherkas.

Argument was held before the court en banc on January 29, 1978 and on February 20, 1980, the lower court entered the order from which the instant appeal has been taken.

At the outset, it must be pointed out that in all actions involving a minor, the best interests of that child are of paramount and controlling importance to this court. The minor litigant’s interest must be protected above all other conflicting interests. In order to effectuate this deeply engrained fundamental concept, Pa.R.C.P. 2039 was promulgated. It provides in relevant part:

Rule 2039. Compromise, Settlement, Discontinuance and Distribution
(a) No action to which a minor is a party shall be compromised, settled or discontinued except after approval by the court pursuant to a petition presented by the guardian of the minor. (Emphasis added)
Adopted Feb. 14, 1939, effective Sept. 4, 1939; amended and effective May 17, 1950; amended and effective Sept. 25, 1956; amended and effective April 2, 1962; amended and effective July 22, 1970; amended and effective June 23, 1975.

First, appellants contend that the purported March 10, 1976 settlement is void and unenforceable for the reason that it failed to comply with the directives or requirements of Pa.R.C.P. 2039(a) set forth above. Appellants contend that the settlement was legally defective for the reason that no written petition was submitted to the court to compromise the minor’s claim. Appellants argue that this requirement is founded in public policy; that it affords the guardians of the minor as well as the court, necessary time for the careful, reasoned and measured considerations necessary to determine whether the proposed settlement is in fact in the minor’s best interest.

We have reviewed all cases referred to by appellants as well as undertaking our own independent research to determine whether a written petition is a non-waivable condition precedent to a Pa.R.C.P. 2039(a) compromise settlement. We conclude that it is not.

A petition should include all relevant facts and the reasons why the guardian of the minor believes that a settlement is desirable and in the minor’s best interest to discontinue, compromise, or settle the action. In the case at bar, the trial court had before it all relevant facts of record, as well as the reasons why it was in the best interests of the minor to settle. In passing upon the petition, the court was guided by the primary objective of protecting the interests of the minor as far as possible. Judicial discretion is necessary in each instance for it is obviously impossible to provide any detailed rule or regulation which would by necessity produce just results in all cases (See Goodrich Amram 2nd § 2039(a): Vol. 6, page 193). As the lower court points out, the purpose of the rule is to make the court aware of and in a position to properly evaluate a minor’s settlement. We agree with the lower court that the word “petition” contained in Pa.R.C.P. 2039 is intended to mean an application to the court, requesting an exercise of judicial discretion. Thus, a petition may be written or oral and still satisfy the dictates of Pa.R.C.P. 2039. Specifically, in this case, the “petition” which was presented to the court of record, and which incorporated prior relevant trial testimony fully satisfied Pa.R.C.P. 2039(a).

There are recorded cases where a court will approve a settlement, even though trivial in comparison with a minor’s injuries, when it is apparent to that court that the liability issue may never be proven and where a trial therefore would not result in a substantial recovery (Citations omitted), as in the case at bar. In discharging its duty of protecting a minor’s interests, the court must concern itself with the concrete issues of “causation” and “proof”, which is precisely what the court did in the instant case.

Alternately, appellants contend that the parties entered into an executory accord and not a final and binding agreement at the March 10, 1976 settlement proceeding. We disagree. The record does not support appellant’s contention; rather, it becomes clear that what was intended at the March 10, 1976 hearing was a complete, final and enforceable agreement to settle a minor’s claim.

THE COURT: Now it is my understanding that the (appellee) is offering $6,000.00 for a full settlement of all claims and is that your understanding as well?
Answer: Yes. (Rochelle Klein) (R.94a).
THE COURT: ... are you willing to settle for $6,000.00?
Answer: Reluctantly.
THE COURT: Now on the basis of that, you must understand, however, that this would be a full, final and complete settlement and despite any difficulties which might arise in the future, although I understand that none are anticipated that you don’t know about already, there would be no further recovery from the (appellees); do you understand that?
THE WITNESS: Yes. (R.96a).
THE COURT: All right, for the record, I will prove the minor’s compromise on that basis, but would appreciate Mr. Foy, if you would prepare a written order that I can sign. (R.97a)

An executory accord is something which is yet to be performed or, put another way, something which remains to be carried into operation in the future. There is no ambiguity or confusion as to what the parties intended at the compromise settlement proceeding. The parties clearly intended same to be final and binding—and we will not upset that intent. The fact that appellants may have changed, their minds and decided not to execute release forms in conformity with the settlement agreement reached on the record on March 10,1976, does not discharge appellants from being bound by the specifics of the March 10, 1976 settlement.

Appellants also contend that the lower court evaluated the compromise of the minor’s claim without having been presented with the necessary facts as to the extent and duration of her injuries. That contention is not supported by the record. There is absolutely nothing in the record to indicate that either parent informed counsel prior to March 10, 1976 that the minor appellant needed or was receiving any sort of psychologic or psychiatric therapy or counseling. In fact, in the deposition of appellant Richard Klein, this fact is brought home clearly at pages 22-23 when he acknowledges that specific psychologic testing was done after the March 10, 1976 compromise settlement proceeding. Paranthetically, it strikes this court as most unusual that nearly eight years elapsed between the accident and the March 10, 1976 partial trial and compromise settlement proceeding during which the minor appellant was never tested nor treated for an emotional or psychological disorders although her parents now contend that they suspected same.

As the court in Bollinger v. Randall, 184 Pa. Super. 644, 135 A.2d 802 at 805-6 (1957) so aptly states:

Appellant also relies upon the rule of law that mutual mistake as to a material fact is ground for the rescission of a contract, the theory being that the settlement was nothing more than a contract even though it was approved by the court. . . .. Underestimating damages or making a settlement before the damages are accurately ascertained is not considered such a mutual mistake of fact as to relieve from a release of damages or a settlement made by the parties.

Order affirmed.

      . The Order in its entirety provides: “AND NOW, to-wit, this 20th day of February, A.D. 1980, the Rule is made Absolute and the plaintiffs are ordered to execute releases and accept the sum of $6,000.00 in full and final settlement of all claims. We order the docket in this matter marked ‘Settled, Discontinued and Ended’ pursuant to the agreement to settle approved by this Court on March 10, 1976.”

      . Contained in said complaint was the following statement of damages:
      By reason of the aforesaid, the minor plaintiff, Debra Klein, sustained severe physical injuries, particularly in that she suffered contusions and abrasions about her body, laceration of the hip, lacerations and contusions of the face area, in particular the mouth and lip area, and in addition, the minor plaintiff sustained severe shock and a concussion, and multiple contusions, lacerations, abrasions and avulsion of five teeth with premature loss of upper deciduous incisor teeth, causing a resulting abnormal tongue thrust, with possible severe malocclusion, with potential impairment and possible prevention of a normal growth and development of the maxilia, including the succedaneous incisors.
      The minor plaintiff has sustained large and ugly scarring of her lip, which is disfiguring and which is permanent and subject the minor plaintiff to severe mental distress. The plaintiffs aver upon information and belief that cosmetic surgery will be needed to correct or repair the scarring.

        And, further, the minor plaintiff sustained severe shock to her nervous system, suffered from anxiety and general nervousness, all of which have caused her great pain and suffering with the accompanying inconvenience which has prevented her from attending to her usual duties and some of which have continued and it is believed will continue in the future for an indefinite time and some of which are permanent in nature. (Emphasis added)


author: POPOVICH, Judge:

text:
    443 A.2d 804
    COMMONWEALTH of Pennsylvania v. Robert E. LEE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed Feb. 12, 1982.

      Norman A. Levine, New Castle, for appellant.

      Paul W. Johnson, Assistant District Attorney, New Castle, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

Appellant, Robert E. Lee, was arrested for robberies which had occurred at a Lawson Milk Company, on October 3,1978, and at a Fast and Friendly Food Market, on October 22, 1978. Two separate trials were held, and appellant was found guilty both times by a jury for robbery. Post-verdict motions were denied, and appellant was sentenced at No. 117-1979 (the Lawson’s robbery) to a term of imprisonment of not less than six nor more than fourteen years in prison. Appellant’s other sentence, at No. 118-1979, was a concurrent term of imprisonment of not less than five nor more than ten years. Both sentences also were to run concurrent with the term appellant was already serving on a previous conviction. Appeals from both terms, Nos. 117-118 of 1979, have been filed to this Court and consolidated. Although appellant raises similar issues in both appeals and the facts pertinent to each overlap, the issues will be addressed in separate discussions. For the following reasons, we reverse the judgment of sentence and remand for a new trial at No. 117-79 (44 Pittsburgh 80), and reverse the judgment of sentence and order appellant discharged at No. 118-79 (61 Pittsburgh 80).

No. 117

In this appeal, it is alleged that the trial court erred in allowing a police officer to testify that appellant was arrested twenty days after the crime in a Lawson’s parking lot and had possession of a gun when, in fact, appellant contends he was not arrested at that time for the crime in question. We agree.

As a general rule, the prosecution cannot introduce testimony from which the jury could reasonably infer that the defendant has been engaged in criminal activity not charged in the indictment or information for which the defendant is being tried. See Commonwealth v. Fuller, 479 Pa. 353, 388 A.2d 693 (1978); Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978); Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973) cert. denied, 414 U.S. 975, 94 S.Ct. 290, 38 L.Ed.2d 219 (1973). Our cases have so often stated that:

“[t]he purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence [. . .] Com[monwealth] v. Terry, 462 Pa. 595, 599-600, 342 A.2d 92, 94-95 (1975) (quoting Commonwealth] v. Clark, 453 Pa. 449, 452-3, 309 A.2d 589, 590-91 (1973).” Commonwealth v. Spruill, 480 Pa. 601, 605-606, 391 A.2d 1048, 1049-50 (1978).

The first area of inquiry is whether the jury could reasonably infer, either expressly or by implication, from the facts presented that the accused had engaged in unrelated criminal activity. See Commonwealth v. Fuller, supra. In the instant case, we conclude that the jury could so reasonably infer such activity from all of the attendant circumstances. See Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976).

The record reveals the following:

.During the prosecution’s case-in-chief, a police officer, Richard Dunkerley, was called to the stand. However, before he testified, the following occurred:

[The District Attorney]
“MR. JOHNSON: We will call Officer Dunkerley.
[Defense Counsel]
MR. PANELEA: May we have a sidebar?
THE COURT: Yes.
AT SIDEBAR
MR. PANELLA: Your Honor, I would like an offer of proof on this testimony from this officer from Hermitage. I don’t know what he is going to testify to.
MR. JOHNSON: This officer arrested the Defendant.
THE COURT: What he wants to know, you tell on the record, we offer to prove by this witness these things and then I will know what you are going to ask him.
MR. JOHNSON: We offer to prove on the record that the Defendant is alleged to have had a certain gun in this robbery and he was arrested about three weeks later with a gun that matches this gun exactly at the Lawson’s store in another community under suspicious circumstances. Now, we are not going to go into the circumstances behind the arrest, but it certainly is good evidence that he has a same gun he was seen with.
THE COURT: We are/not [sic] going to let you refer to suspicious circumstances. This officer may testify that he had an occasion to arrest the man, if that is what he did, and then in a search of this person, he found this revolver and was identified by somebody as being the one that looked like the one used in the store.
MR. PANELLA: I don’t think that, number one, that the Defendant was never [sic] charged on this other Lawsons— never charged for any crime for Lawsons, this Lawsons he is describing. He was never charged with any crime. He was never charged with a crime carrying a gun. I don’t think his witnesses have identified this gun as the same gun. MR. JOHNSON: They have identified it to me as being the exact gun—one of them.
THE COURT: We are going to permit that part of it that I said I would permit, but nothing more and if he goes over the bounds, you move for a mis-trial [sic] and we will grant it.
MR. PANELLA: You are going to permit what? The fact he was arrested on another charge?
MR. JOHNSON: I am not going to mention any other charges.
MR. PANELLA: That the officer arrested him?
MR. JOHNSON: I am not going to mention that.
MR. PANELLA: How are you going to get in the fact that he found him with a gun if he wasn’t arrested? He seen a guy with a gun?
MR. JOHNSON: Yes.
MR. JOHNSON: Yes.
MR. PANELLA: He has never been charged with any crime.
THE COURT: We are going to permit it. You have an exception on the record. We will permit it to that extent that I stated and no further.

END SIDEBAR

RICHARD DUNKERLEY, called as a witness, being first duly sworn according to law, testified as follows:

BY MR. JOHNSON: Direct Examination:
Q. State your name, please.
A. Richard Dunkerley.
Q. What is your occupation?
A. I am a police officer.
Q. With what police department?
A. Municipality of Hermitage, Mercer County.
Q. Hermitage?
A. Yes.
Q. You say that is in MercerCounty [sic], Pennsylvania?
A. Yes, sir.
Q. I will ask you, officer, if you have any connection with this case.
A. Yes sir.
Q. And will you tell us whether or not you, at any time, have arrested the Defendant ?
A. Yes, sir, I have.
Q. Would you give us the date that this occurred ?
A. October 23—
MR. PANELLA: I would object to this testimony we have already discussed this at sidebar.
THE COURT: Objection is overruled at this point.
BY MR. JOHNSON: Continuing:
Q. What was the date, officer?
A. October 23, 1978.
Q. Where was he arrested?
A. At a Lawson’s parking lot, Buhl Farm Drive and Highland Road in Hermitage.
Q. Hermitage is a township. Is that right?
A. Yes.
Q. After the Defendant was arrested by you in this Lawson’s parking lot, would you tell us whether you conducted a search either of his person or of his vehicle?
A. I conducted a search of both.
Q. And during the course of that search, would you tell us whether you found any piece of evidence that might relate to this case?
A. In his car I found a .25 caliber semi-automatic pistol.
Q. Officer, would you remove this item from this bag for us please?
The officer does so.
Q. Officer, this item which I will refer to as Commonwealth’s exhibit number one is a handgun. Is that correct?
A. Yes, sir.
Q. That is the handgun you removed and would you tell us at the time you discovered this handgun whether or not it was loaded?
A. There was [sic] two live rounds in the clip and a spent cartridge was jammed in the receiver and the receiver was partly opened.
Q. The spent cartridge, you mean an empty cartridge?
A. Yes.
Q. Was jammed into the ejection mechanism?
THE COURT: All we need to know is that he found the gun and then you go from there.
MR. JOHNSON: Yes, Your Honor. If the Court please, Commonwealth will offer this into evidence as Commonwealth’s exhibit number one.
MR. PANELLA: I would object.
THE COURT: Objection is sustained.
BY MR. JOHNSON: Continuing Direct Examination:
Q. I have no further questions.”
(N.T. 6/25/79, at 24-28). (Emphasis added). On cross-examination, the following testimony was elicited:
“Q. Mr. Dunkerley, Mr. Lee [the appellant] wasn’t arrested for robbing Lawsons in Hermitage Township, was he?
A. No sir.
Q. The gun was in the car ?
A. Yes sir.
Q. He wasn’t charged with having a firearm either, was he?
A. No sir.
THE COURT: That is all.”

(N.T. 6/25/79, at 30) (Emphasis added).

Although from defense counsel’s questioning, excerpted above, Officer Dunkerley did state on cross-examination that appellant was not arrested for robbery or for possession of a prohibited weapon at the Lawson’s Milk Store in Hermitage, the jury was apprised of two critical facts in the case. Those facts were that (1) appellant was not charged with the instant robbery until December 11, 1978, (N.T. 6/25/79, at 34), and that (2) the “arrest” at Lawson’s parking lot occurred on October 23, 1978, which was more than a month and a half before he was charged for the instant robbery. But see Commonwealth v. Claffey, 264 Pa.Super. 453, 456, 400 A.2d 173, 174 (1979) (where this Court said, “Had the jury been apprised of both the date of appellant’s arrest and the date of the [fingerprint card], then the detective’s reference to a fingerprint card would have indeed given rise to a reasonable inference of a prior criminal offense on appellant’s part”.) (emphasis added). Under these circumstances, the jury could only conclude that the incident involving appellant’s “arrest” at Lawson’s parking lot on October 23rd was unrelated to the instant case and must have been related to some other criminal activity. As such, it was an impermissible reference since there was no causal connection between how the arrest at Lawson’s parking lot related to the robbery at a different Lawson’s in another community.

Both the prosecution and the trial court assert that the reference to appellant’s arrest is admissible because traditional exceptions to the rule barring evidence of unrelated criminal activity are applicable. We are not persuaded by their argument.

The special circumstances justifying exceptions to the general rule exist when the evidence of unrelated criminal activity tends to establish the following:

“ ‘(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity l*J of the person charged with the commission of the crime on trial—in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.’ Commonwealth v. Peterson, supra, 453 Pa. [187] at 197-198, 307 A.2d [264] 269.” [**]

The prosecution argues that the reference is admissible under the “res gestae” exception because;

“[T]he purpose of the testimony was to establish that at this time (an hour or so after the crime) he [the appellant] .possessed a handgun similar to that used in the crime (a robbery) and possessed fruits of the crime. As such, the arrest was clearly part of the continuing sequence of events that evening and was part of the Res Gestae of the offense. Even if there was testimony that he was arrested for a seperate [sic] crime occurring that evening that would be admissable [sic]. Com[monwealth] v. Coles, 265 Pa. 362[, 108 A. 826 (1919) ]. Brief for the Prosecution at 3-4.

This characterization is inaccurate.

The “res gestae” or “same transaction” exception has been applied in situations where “[the] prior conviction or criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the natural development of the facts.” Commonwealth v. Brown, 462 Pa. 578, 591, 342 A.2d 84, 90 (1975). Accord Commonwealth v. Davenport, 286 Pa.Super. 212, 215, 428 A.2d 647, 649 (1981); see also McCormick Handbook on Evidence, § 190, (2d ed. McCleary 1972). Thus, if, as the prosecution contends, “the evidence of other events . .. [was] necessary to complete the picture of the day in question” id., and not to prove the defendant’s criminal disposition in general, that evidence would have been admissible. In the instant case, however, appellant’s arrest on October 23rd in an unrelated matter was not “necessary to complete the picture” of the robbery which had occurred twenty days previous to the day in question, which was October 3rd. Id.

Furthermore, we cannot agree with the trial court that appellant received a fair trial free of prejudicial error. The trial court concluded that the evidence of appellant’s “arrest” along with the other testimony which established that appellant possessed a gun on the night of the robbery in question was admissible to establish appellant’s possession of a handgun in the robbery of October 3rd and “was in the overall evidentiary proof required of the Commonwealth and . . . [tended] to prove or at least to corroborate proof of the identity of the defendant as the person who committed the Robbery of October 3rd.” Trial Court Opinion at 9.

The reference to appellant’s “arrest” on an unrelated charge does not establish any identifying facts and only tends to prove the appellant’s criminal disposition in general. See Commonwealth v. Brown, supra; see also Commonwealth v. Bond, 261 Pa.Super. 311, 317 n.4, 396 A.2d 414, 417 n.4 (1978).

Even, however, assuming arguendo that the reference to appellant’s possession of the gun may have been relevant to the instant case, and even if the reference to appellant’s arrest may have fallen within one of the exceptions to the general rule barring evidence of unrelated criminal activity, the prejudicial impact of the entire reference, more specifically, the reference to appellant’s arrest at a Lawson’s parking lot, outweighed its probative value. See Commonwealth v. Stanley, 484 Pa. 2, 10, 398 A.2d 631, 635 (1979) (reversible error occurred when the Commonwealth, during its case-in-chief, introduced other details to show the defendant’s possession of a .38 caliber automatic pistol. The Court said “The Commonwealth could have easily shown possession and access in the hours prior to the killing without eliciting other details.”) Accord Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971). Cf. Commonwealth v. Scott, 496 Pa. 188, 196, 436 A.2d 607, 611 (1981) (undue prejudice is obvious if the Commonwealth would have been permitted to ask the defendant’s character witness if they heard he had been arrested for assaulting his wife and on a weapons charge).

First of all, the prosecution indicated that he was not going to mention that the [police officer “arrested” the appellant]. (N.T. 26). The prosecutor stated that he was only going to mention the fact that the police officer had “seen a guy, [the appellant], with a gun.” Id. Shortly thereafter, the prosecutor posed the question if the officer “at any time, ha[d] arrested the Defendant?” (N.T. 27). The prosecution’s probing then continued with the query, “[w]here was he [the defendant] arrested?” (N.T. 27), and the jury was informed that appellant was “arrested” in Lawson’s parking lot on October 23rd, and that appellant was not charged with the instant crime until December 11th. The only reasonable import of the reference to the “arrest” is that the appellant must have been involved in some other unrelated criminal activity. Accordingly, the injection into the trial by the prosecutor and the witness of the “arrest” on October 23rd was unnecessary and inadmissible.

In certain cases, even the admission of certain prejudicial testimony has not warranted a new trial where the error was harmless beyond a reasonable doubt. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978); Commonwealth v. Gardner, 246 Pa.Super. 582, 371 A.2d 986 (1977). In the instant case, however, we cannot say that the reference to appellant’s “arrest” “could not have contributed significantly to the verdict reached.” Commonwealth v. Parks, 273 Pa.Super. 506, 520, 417 A.2d 1163, 1170 (1979). The jury’s determination of the case depended upon the credibility of the witnesses. More particularly, was the jury to believe the prosecution’s version of the facts that appellant robbed the store at 11:30 p. m. on October 3rd, or the defense counsel’s case that appellant was with his wife at the time of the crime?

Appellant did not testify. See Commonwealth v. Rozanski, 289 Pa.Super. 531, 433 A.2d 1382, 1383 (1981) (where this Court said that evidence of defendant’s criminal activity, although relevant, had to be weighed with the passion it would stir in the jury. This Court said: “We should find this question difficult if appellant had not testified.”) Thus, even though there was eyewitness testimony that appellant was seen at the store, and further evidence that he pulled a gun on one of the witnesses during the robbery, the impact was nonetheless significant. See Commonwealth v. Fortune, 464 Pa. 367, 373, 346 A.2d 783, 787 (1975) (whenever a jury improperly receives evidence of other crimes, the impact is significant). The police officer’s reference to appellant’s “arrest” in an unrelated matter might have influenced the jury away from appellant and towards the prosecution.

Nos. 117-118—1979

In this appeal, appellant also argues that his motion to dismiss the charges underlying both informations should have been granted and further argues that the Commonwealth’s petition to extend the run date was granted improperly. We agree with appellant and find that the extension at No. 118 was granted improperly. However, because appellant agreed to extend the trial date at No. 117, no Rule 1100 violation occurred.

In the instant case, the mandatory period commenced running on December 11,1978, when the complaints on both charges were filed against the appellant. One hundred and eighty days from that date was June 9,1979; however, since the 180th and 181st days fell on a Saturday and Sunday, respectively, those days were to be omitted from the computation in accordance with 1 Pa.C.S. § 1908, making June 11, 1979, the relevant run date.

The record reveals that defense counsel agreed to conducting a trial the week of June 25th, and one of the trials, at No. 117, did commence on that day. Although a defendant has no duty to object to the scheduling of his trial beyond the run date, he also cannot complain when his statements or acts “indicate that he approve[d] of or accepted] the delay.” Commonwealth v. Garrison, 277 Pa.Super. 18, 25, 419 A.2d 638, 642 (1980). The relevant portions of the arraignment record consist of the following:

“THE COURT: Well, if you or your counsel desires copies of the indictments, you may have them. We would also say to you that you will have time enough to—
MR. PANELLA: He has thirty days to file pre-trial motions.
THE COURT: Thirty days to file any pre-trial motions pertaining to these cases. If they are not filed, or if they are filed—they will be disposed of—and they will probably be set down for trial in June.
MR. PANELLA: The last two weeks of June, I believe, is the trial term.
THE COURT: Well, the week of June 25th is jury trials—
MR. PANELLA: That’s correct, Your Honor.
THE COURT: And this is the 25th also—
MR. PANELLA: That's correct.
THE COURT: So he has thirty days before the week of June 25th. This trial probably will be set down sometime during the week of June 25th. Maybe not on that day of June 25th—but, during that week. If you have any motions to file, I am sure Mr. Panella will take care of them for you.
MR. PANELLA: Thank you, Your Honor.
THE COURT: That’s all.” (N.T. 5/25/79 at 2-3) (Emphasis added).

From the colloquy excerpted above, we can infer from counsel’s statements that he “gave the appearance of approval to the court’s scheduling of one of the trials [to June 25th, which was] beyond the time limits set forth in Pa.R.Crim.P. 1100(e). Accordingly, we hold that appellant may not now complain that Rule 1100(e) was violated.” Commonwealth v. Hickson, 235 Pa.Super. 496, 500, 344 A.2d 617, 618 (1975) (footnote omitted) (where counsel’s statement, “Any day is fine with me, Your Honor” was indicative of his agreement to postpone the trial when asked if June 19 would be satisfactory.”)

Although the court did not specify which of the informations was to be tried “the week of June 25th” when it said “[t]his trial probably will be set down sometime during the week of June 25th”, appellant cannot complain to the scheduling of the first trial date, which was the trial on the information filed on the first robbery at No. 117-79. (N.T. 5/25/79 at 3). Hence, no Rule 1100 violation occurred on this charge.

In order to resolve the other Rule 1100 issue surrounding the information at No. 118, however, we must examine the propriety of the trial court’s granting of the prosecution’s petition to extend the run date. The controlling section of Rule 1100, subsection c, provides as follows:

“(c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.”

Appellant argues that the prosecution’s petition was filed untimely because it was filed on June 13th, which was two days after the run date. However, from the record it appears that the appellant’s attorney had scheduled other legal engagements in another county from May 21st to the 25th, and that was the reason for his unavailability.

Hence, counsel’s unavailability during this time is properly excludible, and the prosecution’s petition was filed on time. Commonwealth v. Cohen, 481 Pa. 349, 352, 392 A.2d 1327, 1329 (1978); Commonwealth v. Miller, 247 Pa.Super. 132, 135, 371 A.2d 1362, 1364 (1977). Accord, Commonwealth v. Smith, 262 Pa.Super. 258, 262, 396 A.2d 744, 746 (1978).

Turning now to the trial court’s granting of the extension, the order issued read as follows:

“ORDER
NOW, June 26th 1979 the Motion to Dismiss under Rule 1100 is denied, and the Petition to Extend Time of the Trial is granted.
The trial of the indictment at No. 117 of 1979 to proceed on Wednesday, June 27th, 1979 at or before one-thirty o’clock P.M. prevailing time; the trial of the indictment at No. 118 of 1979 to commence on Monday, August 20th, 1979, at nine-thirty o’clock A.M. prevailing time.
BY THE COURT:
S/ Frank E. Reed. J.
Specially Presiding
Same day exceptions granted and bill sealed to the Commonwealth and to the defendant in the indictment at No. 117 of 1979, and to the indictment at No. 118 of 1979.
S/ Frank E. Reed, J.
Specially Presiding”
Because we have already determined that counsel had agreed to the first trial date, we need only examine that aspect of the order which extended the trial date to “Monday, August 20th, 1979 at nine-thirty o’clock A.M. prevailing time.” Id.

Of course, our threshold inquiry in examining the propriety of the extension has been often-stated:

“ ‘A court may grant the Commonwealth an extension of time for trial if it finds that “trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.” Pa.R.Crim.P. 1100(c).’ Commonwealth v. Miller, [270] Pa.Super. [178], [182], 411 A.2d 238, 240 (1979) .
The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c). Cf. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Furthermore, in reviewing a hearing court’s ruling that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence as, fairly read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Mitchell, supra.
Commonwealth v. McNeil, 274 Pa.Super. 257, 418 A.2d 394 (1980) .

The record reveals that the prosecution filed a petition which alleged that it was ready to proceed to trial the week of May 21st, In support of its conclusion, the prosecution stated that trial could not be commenced before the run date because of counsel’s unavailability and also because counsel requested thirty days to file pretrial motions. At the rule 1100 hearing, which was held on June 22nd, the assistant district attorney and the defense counsel testified. Although defense counsel stipulated that Paul Johnson, the prosecutor who represented the Commonwealth at all of the proceedings relevant to the instant case at the trial level, was at the courthouse on the date of the arraignment, he would not stipulate that the Commonwealth was ready for trial. However, the prosecutor stated that he and “Mr. Sasiadek, the other prosecutor on one of the charges” was also present and that the prosecutor saw “Mr. Sasiadek with a group of Commonwealth witnesses and he informed me that they were ready to go to trial.” (N.T. 6/22/79, at 8). However, even if we accept the prosecution’s version of the facts that it was ready to proceed to trial, there is no evidence in the record to support an extension by the prosecution to extend the other trial to “Monday, August 20th, 1979 at nine-thirty o’clock A.M. prevailing time.” See Trial Court’s Order dated June 26th, infra at 21-22.

Apparently, the entire thrust of the prosecution’s argument and of the testimony presented at the Rule 1100 hearing concerned the time that defense counsel was involved in another legal matter and also the allegation that the prosecution was ready to proceed to trial during the week of May 21st. There is no allegation or indication in the record or otherwise that judicial delay caused the scheduling of the second trial to August 20th, or that defense counsel was unavailable up until that date. Thus, any delay beyond the June 25th date is beyond the purview of the Rule and therefore not excludible under either subsection c or d. Therefore, “without any evidence on record upon which the lower court could have made a factual finding of due diligence, the order extending the time for trial (under Rule 1100(c)) [to Monday, August 20th, 1979 at nine-thirty o’clock A.M. prevailing time] must be seen as a nullity.” Commonwealth v. Warman, 260 Pa.Super. 130, 135 n.4, 393 A.2d 1046, 1048-9 n.4 (1978).

Moreover, we are not confronted with an incomplete record as was before this court in Commonwealth v. Krall, 249 Pa.Super. 433, 378 A.2d 373 (1977). The record contains a transcript of the Rule 1100 hearing which concerned both charges, the petition to dismiss and the petition to extend. The answers filed in response to those motions are also before this Court. Additionally, nowhere in the transcripts does the prosecution attempt to support its petition with any other reasons or facts. Under these circumstances, we must hold that the prosecution failed to prove the exercise of due diligence at No. 118-79, and accordingly the trial court erred to this extent when it granted the prosecution’s petition to extend.

Judgment of sentence at No. 117-79 (44 Pittsburgh 80) is reversed, and the matter is remanded for a new trial, and the judgment of sentence at No. 118-79 (61 Pittsburgh 80) is reversed and appellant ordered discharged.

SPAETH, J., concurs, in the result.

      . During its case-in-chief, the prosecution called a New Castle police officer, Lieutenant Leon Sasiadek, whose testimony established that appellant was not a suspect in the instant robbery until December 11, 1978, the date the charges were filed. (N.T. 6/25/79, at 3-4).

      . The prosecution argues that the reference did not indicate criminal activity because the word “robbery” was not mentioned. We cannot agree. Where as here, the attendant circumstances disclose that appellant had been arrested for the instant robbery at Lawson’s in New Castle, more than one month after the “arrest” at Lawson’s parking lot in Hermitage, a neighboring community, the words used implied criminal activity even though the word “robbery” was not spoken.

        [*] In McCormick, supra at 448, the commentator states that the need to prove identity alone is usually not sufficient to permit the introduction into evidence of other crimes. Instead, evidence of other crimes establishing a defendant’s identity is generally admitted when it is interrelated with one of the other exceptions specified above. The exceptions most frequently resorted to for this purpose are motive, a common scheme or plan, and an identical modus operandi. See also Commonwealth v. Patterson, 247 Pa. Super. 199, 372 A.2d 7 (1977) (Dissenting opinion by HOFFMAN, J. in which JACOBS and SPAETH, JJ. joined), allocatur granted.
      [**] Some Pennsylvania cases have articulated a more streamlined version of the special circumstances justifying exceptions to the general rule against evidence of other crimes. In Commonwealth v. Fortune, 464 Pa. 367, 373, 346 A.2d 783, 786 (1975), the Supreme Court stated:
      ‘[Ejvidence of other crimes is admissible when it tends to prove a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others or establish the identity of the person charged with the commission of the crime on trial,—in other words where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.’ (Emphasis in original) Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783, 786 (1975); See also, Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955).”

        Commonwealth v. Hude, 256 Pa.Super. 439 at 441-44, 390 A.2d 183 at 184-5 (emphasis is in original),

      . With respect to this particular exception, we also have observed the following:
      “[W]hile evidence of the ‘same transaction’ sometimes inappropriately called ‘res gestae’ has been generally treated as an exception to the rule barring evidence of prior crimes, this treatment appears conceptually incorrect. Evidence of the same transaction is not evidence of a prior transaction or crime, and therefore it need not be excepted from the general rule because it does not fall within the purview of the rule to begin with.”

        Commonwealth v. Davenport, 286 Pa.Super. at 216 n.l, 428 A.2d at 649 n.l.

      . We have said that the problem in this area of the law is not one of “pigeon-holing” the evidence into one of the exceptions (i.e., motive, intent, identity, general scheme) regarding inadmissible evidence to show unrelated criminal activity. Instead, we have agreed with McCormick’s criticism of
      “judges who end all inquiry once they decide whether or not a particular exception to the ‘other crimes’ rule applies. The commentator warns that this practice of ‘pigeon-holing’ may cause trial and appellate judges to ‘lose sight of the underlying policy of protecting the accused against unfair prejudice. The policy may evaporate through the interstices of the classification.” McCormick, supra at 453. Accordingly!,] the commentator recommends that courts balance “.. on the one side, the actual need for the other crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that other crimes were committed and that the accused was the actor, and the strength or weakness of their other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the overmastering hostility, [supra] at 453.” Commonwealth v. Hude, 256 Pa.Super. at 444, 445, 390 A.2d at 185. Accord Commonwealth v. Bond, supra.

      . The fact that a case was tried by a jury, as was the case before us, instead of by a judge sitting without a jury also has been relevant in determining whether reversible error has occurred. See Common

        wealth v. Stokes, 279 Pa.Super. 361, 372, 421 A.2d 240, 246 (1980). In Stokes, we stated that the rule concerning prejudicial evidence will not be strictly enforced when the finder of fact is the trial judge and not the jury, but neither will it be ignored completely, allowing the judge to hear any evidence no matter how prejudicial. A fortiori, when the finder of fact is the jury, the rule concerning prejudicial error is to be strictly enforced.

      . According to the record, counsel for the appellant had scheduled other legal engagements in another county during this time. Hence, he was unavailable. See Commonwealth v. Miller, 247 Pa.Super. 132, 135, 371 A.2d 1362, 1364 (1977). Accord Commonwealth v. Smith, 262 Pa.Super. 258, 396 A.2d 744, 746 (1978).

      . It is interesting to note the court’s closing remarks which were made at the Rule 1100 hearing:
      “THE COURT: Probably my present inclination, and that may be the result, that I am going to be like Salmon [sic], I am not going to cut the baby in half but since both parties are in half, I am probably going to refuse the motion and let you take it to the Superior Court. That is a better Court than I am, as you well know.” (N.T. 6/22/79, at 19-20).

      . In this appeal appellant also raised other issues; however, we need not address these issues in view of our disposition of the matter.


author: CERCONE, President Judge: WICKERSHAM, Judge,

text:
    443 A.2d 814
    COMMONWEALTH of Pennsylvania v. Russell Melvin SHOATS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 4, 1981.
    Filed March 26, 1982.
    Petition for Allowance of Appeal July 1, 1982.

      James D. Flower, Jr., Carlisle, for appellant.
    Stewart L. Kurtz, District Attorney, Huntingdon, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and BROSKY, JJ.
   CERCONE, President Judge:

Appellant, Russell Melvin Shoats, takes this appeal from his conviction for escape, robbery, kidnapping, and simple assault. Appellant advances several reasons why his trial counsel should be found ineffective, including the argument that counsel was ineffective for failing to object to the court’s charge to the jury regarding the burden of proof. We find this latter issue to have merit and we reverse and remand for a new trial. In view of our disposition of this particular issue, we need not address appellant’s remaining contentions in which he points to other alleged failings of trial counsel.

On September 14, 1977, appellant and three other inmates escaped from Huntingdon State Correctional Institution. Appellant remained at large until his capture on October 10, 1977. Subsequently, charges were filed against appellant in Huntingdon County; however, a motion for a change of venue was granted and appellant’s case was transferred to Cumberland County. After a three day trial, the court charged the jury. The court carefully instructed the jurors that in order to find appellant guilty they had to be satisfied that the Commonwealth established that guilt beyond a reasonable doubt. The court did not, however, instruct the jury that the Commonwealth had the burden to prove beyond a reasonable doubt each and every element of the various offenses with which appellant was charged. Defense counsel raised no objection to the charge nor did counsel attempt to raise this in post verdict motions. On appeal, appellant is now represented by new counsel who raises the issue of trial counsel’s ineffectiveness for various reasons.

It is well settled that the standard used when reviewing ineffective assistance of counsel claims is whether the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest, and not whether other alternatives were more reasonable in hindsight. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). As the Court said in Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977).

Because counsel does not forego an alternative which offers a substantially greater potential for success when he fails to assert a baseless claim, counsel cannot be found to have been ineffective for failing to make such an assertion. It is only when the claim which was foregone was of arguable merit that we must make an inquiry into the basis for .. . counsel’s decision not to pursue the matter.

Id., 472 Pa. at 278, 372 A.2d at 695-696.

Appellant argues that trial counsel was ineffective for neglecting to object to the court’s failure to instruct the jurors that the Commonwealth has the burden of proving “each and every element” of the charged offenses beyond a reasonable doubt. The Supreme Court’s decision in Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977) was decided on April 28, 1977, six months before the start of appellant’s trial on October 23, 1977. In Bishop, the defense counsel had requested that the trial court instruct the jury that the Commonwealth has the burden to prove “each and every element” beyond a reasonable doubt. The trial court declined to give this instruction, and the defense appealed. The Supreme Court reversed. The Court stated that in previous cases it has been held that the Commonwealth’s burden of proving guilt beyond a reasonable doubt extends to every material element of the crime charged and that the Commonwealth fails to carry this burden as to any one element, the accused must be acquitted. Commonwealth v. Bishop, supra, 472 Pa. at 489, 372 A.2d at 796, citing Commonwealth v. Young, 456 Pa. 102, 111, 317 A.2d 258, 262 (1974); Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973); Commonwealth v. Conklin, 399 Pa. 512, 515, 160 A.2d 566, 568 (1960). The Bishop Court went on to hold:

In the instant case the court informed the jury several times of the presumption of innocence and burden of the Commonwealth to prove guilt beyond a reasonable doubt. These were accurate statements of the law. In addition, the court correctly defined the requisite elements of the crime of murder of the first degree. Nowhere, however, in the entire charge did the court explain that the presence of each of the elements of the conduct charged must be proven by the Commonwealth beyond a reasonable doubt. In fact, no direction at all was given as to the proper application of the burden to the component parts of the crime in question. The defense had an absolute right to have the jury instructed not only as to the quantum of proof required to establish guilt but also that the requirement extended to each of the material elements of the offense. The function of elucidating the relevant legal principles belongs to the judge, and the failure to fulfill this function deprives the defendant of a fair trial, (emphasis added) See Commonwealth v. Johnny Wortham, (Commonwealth v. Dorthe Wortham), 471 Pa. 243, 369 A.2d 1287. It is entirely possible that, as a result of the charge as it was given, the jury concluded that the Commonwealth might meet its burden if the cumulative evidence (emphasis in original) of guilt was such that they were convinced beyond a reasonable doubt although they were not convinced beyond a reasonable doubt as to one or more of the elements of the offense. This is not the correct standard and differs significantly from the requirement that each and every element of the crime meet this same measure of substantiation.

Id., 472 Pa. at 490, 372 A.2d at 796-797. (footnote omitted). The Bishop Court further went on to reject the Commonwealth’s argument that even if the charge as a whole is defective, it should be considered harmless error in view of the convincing evidence of guilt offered to support the verdict. On this score, the Court wrote:

The Commonwealth argues that even if the charge as a whole were defective it must be considered harmless error in view of the convincing evidence of guilt offered to support the verdict. We cannot accept this position. On prior occasions we have refused to ignore an incorrect, misleading, or incomplete charge on a matter as fundamental as the burden of proof in a criminal case, even where “the evidence of guilt piles as high as Mt. Everest on Matterhorn, even if the District Attorney conscientiously believes the defendant to be as guilty as Cain, and no matter with what certainty the Judge views the culpability of the accused at bar, . . . ”. Commonwealth v. Edwards, 394 Pa. 335, 338, 147 A.2d 313, 315 (1959);

Id., 472 Pa. at 491, 372 A.2d at 797 (footnote omitted) (citations omitted). See also Commonwealth v. Cherry, 474 Pa. 295, 307 n. 12, 378 A.2d 800, 806 n. 12 (1977). Therefore, in view of the court’s decision in Bishop, we find that appellant’s position has merit.

Having found that appellant’s contention has merit, the next matter to be addressed is whether there existed a reasonable basis for counsel’s omission. We conclude that the ineffectiveness of trial counsel’s actions is clear from the record. In the words of Bishop, appellant had “an absolute right” to have the jury instructed as to the correct standard for the burden of proof. We find no acceptable excuse for counsel’s omission in this case and we accordingly remand for new trial. See Commonwealth v. Newmiller, 487 Pa. 410, 409 A.2d 834 (1979) (plurality), Commonwealth v. Stanton, 479 Pa. 521, 388 A.2d 1053 (1978).

Reversed and remanded for a new trial. This court does not retain jurisdiction.

WICKERSHAM, J., files a dissenting opinion.

WICKERSHAM, Judge,

dissenting:

I dissent:

The facts of this case are accurately stated by President Judge Dale F. Shughart of the Court of Common Pleas of Cumberland County as follows:

On September 14, 1977, the defendant, Russell Melvin Shoats, and several other inmates took over a cell block of the Huntingdon State Correctional Institution as part of an attempt to escape, from prison. Several of the institution guards were injured during the episode. After the takeover was complete and the cell block secured, the defendant and three other, inmates attempted their escape from the prison as planned. Two of the inmates were captured almost immediately and a third was killed during the escape. The defendant, however, was able to avoid the authorities and remained at-large until his capture on October 10, 1977.
On September 26, 1977, while the defendant was a fugitive, he entered the home of Dale Rhone, a guard at the prison, and forced him and his wife, Marlene, and their five-year-old son, Eric to drive him in their car to a location outside of Cokesburg, Pennsylvania, where the defendant ordered Mrs. Rhone, who was driving the car, to pull over to the side of the road. At that point the car could not be restarted forcing the defendant to abandon it along the side of the road. The Rhones were then ordered into the woods, tied to a tree, and left by the defendant. They remained at that location for approximately three and one-half hours before they were able to free themselves and find help.
An application for change of venue was granted, and the above case was assigned to this county for trial by the Supreme Court of Pennsylvania. On October 25, 1978, after a three day trial, the defendant was found guilty by a jury of escape, robbery, kidnapping, and simple assault as the result of his participation in the escape and subsequent events. The defendant was acqui[t]ted of the charge of aggravated assault by a life prisoner.

Lower court opinion en banc dated March 2, 1979 at 1-2.

The majority holds that trial counsel was ineffective for neglecting to object to the court’s failure to instruct the jurors that the Commonwealth has the burden of proving each and every element of the charged offenses beyond a reasonable doubt. The majority finds, however, as I do, that the court carefully instructed the jurors that in order to find appellant guilty they had to be satisfied that the Commonwealth established that guilt beyond a reasonable doubt.

I agree with appellee’s analysis of this aspect of President Judge Shughart’s charge to the jury.

. . . the charge of the trial judge by implication advised the jury of its duty vis a vis each element of each offense, and the jury by its verdict demonstrated that it understood its function.
Initially, President Judge Shug[h]art reviewed each of the elements of each of the charges with the jury defining for them the various terms, and making reference to the testimony as it related to the elements and definitions. He also defined for the jury the lesser included offense of simple assault and unlawful restraint. (Tr. pp. 292-296). Judge Shug[h]art defined reasonable doubt and explained the Commonwealth’s burden as to the charges in general. (Tr. pp. 299-300)
For the purposes of this argument, the significant portion of the charge appears on pages 304 through 306 of the Transcript. Again the Court below broke down each element of each offense and instructed the jury as to their function. Implicit in these instructions is the legal concept that in order to convict on a particular charge, guilt beyond a reasonable doubts [sic] must be established by the Commonwealth as to each element.
Finally, the jury in this case reduced the offense of assault by life prisoner (aggravated assault) to simple assault. Obviously, the jury concluded that the Commonwealth had failed to meet its burden as to some element of the crime of aggravated assault. The verdict reflected] an understanding by the jury of the Commonwealth’s burden of proof.

Appellee’s Brief at 8.

Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977) cited by the majority is distinguishable on its facts. In Bishop defense counsel specifically requested an additional charge relating to “each and every element” of the offenses, and the trial judge refused.

Bishop also stands for the following:

It is beyond cavil that an accused in a criminal case is clothed with a presumption of innocence and that the burden of proof in establishing guilt rests with the Commonwealth. The quantum of proof necessary to satisfy this burden, which never shifts from the Commonwealth to the accused, is such that the fact-finder must be convinced beyond a reasonable doubt of the defendant’s guilt. Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974); Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974); Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959) ....
In determining the adequacy of the instructions to the jury on the relevant legal principles the charge must be read as a whole. Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974); Commonwealth v. Fell, 453 Pa. 531, 309 A.2d 417 (1973); Commonwealth v. Franklin, 438 Pa. 411, 265 A.2d 361 (1970). In the instant case the court informed the jury several times of the presumption of innocence and burden of the Commonwealth to prove guilt beyond a reasonable doubt. These were accurate statements of the law. . . .

Id., 472 Pa. at 489-490, 372 A.2d at 796.

In Commonwealth v. Lesher, 473 Pa. 141 at 146, 373 A.2d 1088 at 1091 (1977), the supreme court said:

It is well-established, however, that in charging the jury the trial court is free to use its own form of expression; the only issue is whether the area is adequately, accurately and clearly presented to the jury. Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975). Also, in evaluating a challenge to the correctness of instructions to the jury, the charge must be read and considered in its entirety and it is the general effect of the charge that controls....

Instantly, the charge as given was correct and adequate. If defense trial counsel wanted more specifics he could have so requested—but he did not. Counsel cannot be held ineffective for failing to object to a charge that was correct and adequate.

      . A portion of this language from Bishop is quoted by the dissent in its opinion. See dissenting opinion at 818. It must be noted, however, that the dissent does not contain the complete passage, which is quoted above.

      . The dissent quotes from the Commonwealth’s brief the discussion regarding the court’s charge to the jury on the elements of the crime. In part, the Commonwealth said:
      [T]he charge of the trial judge by implication (emphasis added) advised the jury of its duty vis a vis each element of each offense and the jury by its verdict demonstrated that it understood its function.

        Implicit in these instructions (emphasis added) is the legal concept that in order to convict on a particular charge, guilt beyond a reasonable doubt must be established by the Commonwealth as to each element.
      It has never been the law in Pennsylvania that a court may satisfy its duty to correctly charge the jury on reasonable doubt based on implication. It is not for the jury to infer what reasonable doubt is, but for the judge to expressly relate that rule to the jury. As the Supreme Court said:

        Our cases require that the jury be given a positive instruction fully and accurately defining reasonable doubt. Only in this way, can a jury fulfill its responsibility to decide the guilt or innocence of an accused. In the absence of a proper reasonable doubt charge, an accused is denied his right to a fair trial. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974) (emphasis added).
      Although the Commonwealth’s brief says that “Judge Shug[h]out defined reasonable doubt and explained the Commonwealth’s burden as to the charges in general,” it must be emphasized that the charge on reasonable doubt was phrased in general terms. The court told the jurors, “If you are satisfied of the innocence of the defendant as to any or all of the charges he is, of course, entitled to an acquittal as to those charges, but he is also entitled to an acquittal in any of the charges as to which you have a reasonable doubt of his guilt, just as much in that case as if you were satisfied of his innocence.” This is not the same as telling the jurors that the Commonwealth has the burden to prove “each and every element” beyond a reasonable doubt. See Bishop, 472 Pa. at 491, 372 A.2d at 797.