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decided: July 10, 1981.
COMMONWEALTH OF PENNSYLVANIAv.WESTLEY SMITH, APPELLANT
No. 80-2-328, Appeal from the Order of the Court of Common Pleas of Dauphin County, at Nos. 1262, 1263, 1972.
Marilyn C. Zilli, 1st Asst. Public Defender, for appellant.
Marion E. MacIntyre, 1st Asst. Dist. Atty., William A. Behe Deputy Dist. Atty., for Com.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Flaherty, J., concurs in the result. Nix, J., files a dissenting opinion. Larsen, J., files a dissenting opinion in which Kauffman, J., joins.
[ 495 Pa. Page 363]
In October, 1972, appellant, Westley Smith, was convicted by a jury of murder of the first degree and robbery. The convictions arose from an incident where appellant and a co-defendant, William Von Smith, had beaten to death a Harrisburg barber, George Fautz, and had then taken the victim's wallet. Appellant was informed of both his right to file post-verdict motions and the right to appeal immediately after the jury had announced its guilty verdicts; the court then sentenced appellant to life imprisonment.
Although co-defendant Von Smith subsequently filed post-verdict motions, no such motions were filed on appellant's behalf.*fn1 In October, 1973, appellant contacted the office of
[ 495 Pa. Page 364]
the Public Defender of Dauphin County. Appellant informed the assistant public defender that privately retained counsel had represented him through the post-verdict motions, but that he lacked sufficient funds to pursue an appeal to the Supreme Court. At that time, appellant erroneously believed that post-verdict motions had been filed in his case.
The assistant public defender thereafter filed a motion on behalf of appellant seeking the right to appeal nunc pro tunc. Appellant alleged that he had understood post-verdict motions had been filed, when, in fact, they had not. Appellant contended that private counsel failed to inform appellant that no appeal had been taken. The Commonwealth opposed the motion and submitted an affidavit by trial counsel, which stated that no appeal was filed because appellant had never requested such action. The petition to appeal nunc pro tunc was denied by our court in a per curiam order of January 15, 1974.
In June, 1980, appellant filed a petition pursuant to the Post Conviction Hearing Act,*fn2 alleging that he had been denied the effective assistance of trial counsel when counsel failed to file a timely motion to sever appellant's trial from that of his co-defendant. Appellant further alleged that he had been denied his appellate rights. The petition was denied without an evidentiary hearing on October 29, 1980, and this appeal followed.
Appellant now asserts, inter alia, that the PCHA court erred in dismissing his petition without a hearing. The Post Conviction Hearing Act provides:
"If a petition alleges facts that if proven would entitle the petitioner to relief, the Court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the Court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full
[ 495 Pa. Page 365]
and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding."
19 P.S. § 1180-9. Instantly, appellant alleges that trial counsel failed to file a timely motion for severance.
Prior to selecting the jury, trial counsel orally moved to sever the trials of appellant and his co-defendant. At the time of appellant's trial, there existed an absolute right to be tried individually in all homicide cases. The Legislature provided:
"In all cases in which two or more persons are jointly indicted for any offense, it shall be in the discretion of the Court to try them jointly or severally, except that in cases of felonious homicide, the parties charged shall have the right to demand separate trials . . . ."
Act of March 31, 1860, P.L. 427, § 40, 19 P.S. § 785, repealed by Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [377]. The trial judge nonetheless denied the request as untimely. Pa.R.Crim.P. 305 stated:
"Except as provided in these Rules, no pretrial application shall be considered if made less than ten days before trial unless opportunity therefor did not exist or the defendant or his attorney was not aware of the grounds for the application."
There is no question that defense counsel knew of the joint indictments prior to the time that the case was called to trial. The prosecutor noted this fact for the court when he argued against the severance:
"We would oppose the Defendant's motion first upon the basis that he has known these charges have been lodged against him for some time. He has known that they have all been listed together on the trial list for some time. And now right before the time we are to select the jury he comes in with a Motion to Sever. Your Honor, this should have been taken care of weeks ago."
Trial counsel did not challenge or contradict the district attorney's remarks. Appellant argues that counsel's failure to file a timely motion to sever constitutes ineffective representation and is adequately supported by the record.
[ 495 Pa. Page 366]
Appellant's co-defendant similarly charged his attorney with ineffective representation for failing to file a timely motion for severance. In Commonwealth v. Von Smith, 486 Pa. 564, 406 A.2d 1034 (1979), we examined his counsel's representation pursuant to Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1957), to determine if the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. After reviewing counsel's oral motion to sever, we ruled:
"Counsel's untimely request for severance reflect[ed] a judgment by him that a separate trial would advance the interests of his client. In light of that judgment, there can be no reasonable basis for belatedly seeking this remedy. Hence appellant was denied effective assistance of trial counsel . . . ."
Appellant's co-defendant was thus granted a new trial because the exact error as alleged herein was characterized as constitutionally infirm representation.
In light of our holding in Von Smith, appellant's assertion of ineffective representation clearly cannot be classified as patently frivolous. In fact, standing alone, it would entitle appellant to a new trial.
However, unlike Von Smith, this is not the sole issue before us. Herein, appellant was informed on the record of his post-verdict rights. Nonetheless, no post-trial motions or appeal were ever filed. Furthermore, appellant was denied the right to appeal nunc pro tunc by this court in 1974. The Commonwealth thus contends that appellant waived his right to file an appeal by failing to request such action in a timely fashion, and that our denial of appellant's appeal nunc pro tunc represents a final litigation of any appealable issue.
Our decision to deny appellant's petition was founded on trial counsel's affidavit that appellant did not wish to seek review of his trial. Appellant is now advancing an argument which concerns the ineffectiveness of trial counsel. In Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975), we ruled that claims of ineffective assistance of counsel
[ 495 Pa. Page 367]
which are not raised on direct appeal may be raised for the first time in a PCHA petition where petitioner is represented on appeal by his trial counsel. We observed that these claims are not considered waived because "it is unrealistic to expect trial counsel on direct appeal to argue his own ineffectiveness . . . ." 460 Pa. at 100, 331 A.2d at 438. Likewise, we do not expect trial counsel to inform a defendant of possible ineffectiveness arguments which could be raised in post-trial motions and on appeal. Therefore, this issue was not waived by appellant's failure to pursue a direct appeal.
As we stated above, the failure of trial counsel to petition for a severance in a timely fashion constituted ineffective assistance of counsel. Accordingly, appellant is entitled to a new trial.
Order reversed and case remanded for proceedings consistent with this opinion.
NIX, Justice, dissenting.
The sole issue raised in this appeal is the propriety of the dismissal of appellant's PCHA petition without a hearing. The PCHA provides that a petition may be denied without a hearing, "if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petition. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was heard at the original trial or at any later proceeding." Post Conviction Hearing Act, Act of January 25, 1966, P.L. 1580, 19 P.S. § 1180-9. (Repealed by Act of April 28, 1978, P.L. 202, No. 53, § 2(2) [1397], effective June 27, 1980, as amended by Act of June 26, 1980, P.L. 265, No. 77, § 2, which delayed repeal until June 27, 1981 as further amended by § 1 of Act of June 26, 1981, Act 1981-41).
[ 495 Pa. Page 368]
Where an issue is on the face of the record, either finally litigated or waived under section 4 of the PCHA, 19 P.S. § 1180-4, it is properly deemed to be frivolous under the terms of section 9 of the Act. 19 P.S. § 1180-9. The basic objection being raised in the instant case is appellant's denial of an absolute right of severance. This objection would have obviously been cognizable on direct appeal. However, no direct appeal was taken in this case. Appellant asserted that he was improperly denied his right to appeal. That claim was rejected by this Court. In view of our prior finding in this case, that the right to direct appeal had been effectively waived, any complaint cognizable during a direct appeal has obviously been waived under the terms of section 4. Since that waiver appears on the fact of the record, the court below was correct in concluding that the petition attempting to raise the waived claim was patently frivolous.
The majority seeks to avoid this obvious result by manipulation of the doctrine of ineffective assistance of counsel. Certainly it is true that an ineffectiveness of assistance claim is not waived because it is not raised in a proceeding wherein the appellant is being represented by the counsel whose ineffectiveness is charged. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). However, this principle of law has no applicability to the instant case.
Here this Court has previously determined that there was an effective waiver of appellate review of potential complaints. That decision stands as the law in this case. In that proceeding appellant was in fact represented by counsel other than trial counsel. Thus any ineffectiveness of trial counsel could have been urged as a basis in support of the request for appellate review nunc pro tunc.
It is therefore clear, in my judgment, that the effect of the majority's ruling today is an implicit overruling of our prior determination in this matter. Such a practice is clearly at variance with the longstanding jurisprudence of this Commonwealth.
[ 495 Pa. Page 369]
LARSEN, Justice, dissenting.
I dissent for the reasons expressed in my dissenting opinion in Commonwealth v. Von Smith, 486 Pa. 564, 406 A.2d 1034 (1979) (Larsen, J., dissenting).
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I remember a New Yorker telling me that he had parked in front of the Washington Memorial for the 4th of July celebration. Anyone who has been in this town knows that is a tall tale (though it may have been true many,many years ago).
For the visitor- you will have to make a lot of quick exits from the highway. There is very limited on- street parking (particularly near tourist sites) and downtown DC has a multitude of one-way streets that seems to follow no logic. Parking in a garage will be quite expensive (especially during the week.)
Long and short of it, please take the Metro if you are going to see the common sights in DC. You will save yourself a lot of money and aggravation.
Reading some of the other posts on this forum I saw that parking in DC (especially for certain monuments/museums) seemed to be an issue for others like it was for me. I just wanted to share a resource I found that gave me more information about DC parking tips:
It's pretty good - hope you all find this helpful as well!
Driving is our usual mode of transportation to D.C. and the surrounding areas. Depending on the season, traffic and road conditions we can usually make it to D.C. proper in seven hours with a few stops for gas, bathrooms and food. D.C is usually a weekend getaway for us so we often leave right after work on a Friday afternoon so we often beat some of the rush hour traffic.
Personally I prefer driving down so I can explore areas that are harder to reach by bus or train. It also allows for some sightseeing along the way to and from the area.
Washington D C sits on the bank of the Potomac River and the Arlington Memorial Bridge--Memorial Bridge to the locals--is one of the more picturesque ways of entering the city. The first building you'll see coming across is the Lincoln Memorial Building.
Traveling to and around Washington D.C. by car is not necessary, but convenient, especially if day trips are in the plan.
Parking is sometimes hard to find and expensive. It is a busy city so there usually is heavy/chaotic traffic to deal with. The roads are not on a grid type pattern so it's easy to get lost and you really have to pay attention to the signs and watch out for oblivious pedestrians.
Still, I toured the city, in a private car, with a long time resident who knew the rules of the road, knew the best streets to use at the time and knew the nearest, least expensive places to park. So, I thought driving through the city was really a great experience. Plus we went on many day trips and the car was really the best way to do that.
Despite the driving troubles this great city presents, there are many ways to have a stress free time in getting around. There is the Metro, which you can cathc at union station, which provides a cheap crime-free way around the city. also, there are numerous parking spots around the National Mall, many are 3 hours spots, so find one and then metro it around for awhile. If you are going to go out and drive downtown on your own, come prepared with a very detailed map in which the directions of the streets arelisted, this will help you navigate your journeys. i have listed a website below that lists some of the better hotels and attractions.
We rented a car for a week from/to Dulles airport. the deal was sourced through a consolidator/search engine website - Argus. Dollar was the provider.
The shuttle bus service from/to the terminal is excellent. It is a bit of a distance to get to the car rental offices - not unusual for a large sprawling airport, but Dulles is relatively small and compact.
Pick-up was quick, friendly, helpful and efficient. Drop off just the same.
One thing which surprised us is that fuel is not included in the quoted price. You pay extra for a full tank, and then return the car empty. I don't know if that is a Dollar thing, just a quirk of the deal we got, or the norm in the USA. I'd say it added $20 to our cost. Not much in relation to a 7 day rental for $300+, but not so good if you just have the car for a day and don't drive far.
We had a Chevvy Malibu. Comfortable and spacious. Excellent on the freeways, but like driving a sofa on the back roads.
There are limited parking at the memorial. Other nearby with limited parking: Washington Monument and Tidal Basin at Jefferson Memorial (park near the pedal boat rental at the Tidal Basin) A better bet would be at National Mall near the museums. You are allowed 3 hours parking. Usually no problems if you arrive early. You can also put your your in a parking lot for $10 a day for cars (cheapest I found) at a lot right off 14th street bridge, across from the US Engraving & Printing Bureau. (You have to go around the block to get into the lot). Enjoy your visit!
If you drive in Washington, parking is an issue. We wanted to visit the Supreme Court and were looking for someplace to park when a helpful policeman told me that probably the closest was the parking deck at Union Station. It is not cheap (nothing in Washington seems to be) but quite convenient. It is in easy walking distance to the Supreme Court (about a mile). Also, the Capitol building is not much further and that puts you on the mall. I think we were gone between 3 and 4 hours and the fee was $9. It would have been more but there are parking validation machines as you approach the parking area and I used one. I don't recommend driving in Washington it is a great place to walk and the public transportation is pretty good but this is a good place and Union Station is worth exploring while you are there. A grand great hall, lots of shops and restaurants.
DEPENDS on your point of arrival and also your itinerary. This tip was written for those who will be travelling inside the loop.
Inside the "loop" #1 and #2 Capital Beltway I-495 is 64 miles long. Many tourist destinations are accessible by metro subway system and many others are a short bus ride or a taxi ride.
#1 - best choice - if you are arriving at Union Station (by train, bus, metro or car) you are in luck, you are within walking distance of several destinations and tourist attractions. You can also walk to the red ine of the metro system, you can also walk to the DCCirculator, buses, shopping, dining etc. You can easily hail a cab or pick up a zip-car or a flexi car.
#2 choice - if you are arriving at National Reagan Airport you can walk to the yellow and blue lines of the metro system. Alternatively, take a taxi or take a zip-car or a super shuttle.
Outside the loop #3 and #4
#3 choice - If you are arriving at Baltimore Washington International Airport, then you will need to reach Greenbelt metro station (using metro bus or taxi or rental car) , alternatively, you could take the shuttle to Amtrak train to Union station, rent a car, take the super shuttle take a zip-car
#4 choice - From Dulles International Airport - you could take the Washington Flyer bus to West Falls Church metro station from whence you can take the orange line of the metro system. Alternatively you could take the super-shuttle or take a zip-car.
When to use a car - if you are not within walking distance of the metro system and if your destination is not accessible by metro system, you might consider using a car. Beware the traffic can be a nightmare and in some places parking is difficult. You might consider a car if you have a disbaled person in your group, parking is easier if you have a valid permit for handiapped parking.
Traversing across the city by car or taxi can take 3 hours if traffic is bad or 1 1/2 if there is no traffic. A taxi ride to the outskirts of the city can easily cost $60.00 or more
We decided to leave our car parked at the hotel and take a taxi to and from our events. This was our best option for two reason, we didn't want to worry about finding a place to park the car and we also wanted to enjoy ourselves with a few drinks.
The taxi was our only real option actually as we were going to be out later than the operating hours of the DC Metro.
There are plenty of ways to get to DC, but driving is easiest and fastest way for us. Our drive takes us about 4 hours (depending on time of day we leave home) on I-95 South until we get to MD-295S (via Exit 52) to US-50W/New York Avenue to DC.
If we are going to Arlington, we continue to I-395 (crossing to VA) and on to our location.
If you don't have a navigational system, check out mapquest.com or if you are a member of AAA you can get directions from them.
There was a big parking lot next to the Eisenhover Avenue Metro Station, it was next to an AMC theater, we used this to park our car through the day as we traveled by metro and it was free of charge! A helpful attendant at the Metro Station gave us this tip.

subset: commoncrawl


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The Ontario University Athletics No. 3 ranked Western Mustangs defeated the visiting McMaster Marauders, 3-2, in men's soccer action Saturday (Sept. 25).
Western took an early 1-0 lead, until McMaster's Aaron Boothe (Whitby) tied the game in the 36th minute. Early in the second half, Western took the lead again off a goal from Eric Amato (Toronto). His penalty kick was stopped by McMaster keeper Matthew Grant (Brampton) but Amato managed to tap in the rebound on the two-yard line to put Western up by one.
The Mustangs held onto their lead until the 80th minute, when Vincent Ientile came off the McMaster bench to tie the game at 2-2. Western answered five minutes later, as Andrew Chan (Markham) scored the game winner.
The loss puts the McMaster Marauders at 4-3-1 on the season, tied for second place in the OUA West division. Tomorrow the team travels to Windsor, to take on the fifth place Lancers at 3:15 p.m. The last time these two teams met, they played to a scoreless draw.


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Anapol Enterprises, LLC
New York
Full Time
HEADLINE: Long Island, New York (Nassau County, 30 miles to Manhattan): GYN only! Office Gyn and Gyn surgery. Join two Ob/Gyn physicians, one Physician Assistant and one Nurse Practitioner. Monday to Friday. No call. No weekends. Admit to excellent teaching hospital. Have Level 3 NICU. Have MFM, Neonatologist and Perinatologist on staff. Also have DaVinci Robotic equipment. $ Very good financial package.
- This practices office and hospital are both located in a very desirable area of Nassau County, Long Island. It is also within a 30 mile commute to Manhattan. See additional details below regarding location of practice as well as New York City.
- Located in a very desirable area of Nassau County, Long Island, a GYN physician is needed to join a very successful single specialty group.
- Established 22 years ago, this practice currently has two Ob/Gyn physicians, one Physician Assistant and one Nurse Practitioner.
- This excellent Gyn opportunity is due to increased growth and expansion.
- There is a 100% GYN only opportunity! She or he will work in the office doing office gynecology and Gyn surgery in the hospital.
- The new Gyn physician can expect to do a good volume of office Gyn and Gyn surgery.
- If the new Gyn physician has interest and wants to do some OB, she or he will be able to. This is totally optional.
- The office hours are Monday to Friday, from 9:00 a.m. to 5:00 p.m.
- There is no weekend work.
- There is no call.
- There is no running around. Their Ob/Gyn physicians and the new Gyn physician will work at only one office. It is located only ten minutes from their medical center.
- Laparoscopic surgical skills are a big plus.
- Hospital: She or he will admit to a very well-regarded teaching hospital. It has a level 3 Neonatal Intensive Care Unit (NICU). This medical center also has a Maternal-Fetal Medicine physician, a Neonatologist and a Perinatologist on staff.
- At their teaching hospital, they have DaVinci Robotic surgery equipment. If the new Gyn physician does not have this skill, they are willing to train (if necessary).
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Fuel-efficient aircraft are the airline industry's best hope for consistent profit, said Gary Scott, president of Bombardier's commercial-aircraft unit. Scott said at an aviation conference that airlines are "struggling just to reach 2% of revenue" in earnings, a situation that is "not sustainable." Bombardier's upcoming CSeries jet, which claims 20% less fuel burn than competing models, is one example of the kind of fleet optimization that "will drive airline profitability through cost savings and revenue growth, and help enable new business models," Scott said.
Full Story:Bloomberg


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Anne Frank's Stepsister: Donald Trump Is Acting 'Like Another Hitler'
In an opinion piece, Eva Schloss said the Republican presidential candidate's actions are inciting racism.By Ryan Biek | January 28, 2016
Anne Frank's stepsister, a Holocaust survivor, has compared Republican presidential candidate Donald Trump to Adolf Hitler.
Trump was not the focus of Eva Schloss' opinion piece published in Newsweek Wednesday. Her topic compared the Syrian refugee crisis to what she experienced during World War II. (Video via United Nations)
But while addressing the U.S.' lack of aid in the Syrian refugee crisis, she said: "If Donald Trump become[s] the next president of the U.S., it would be a complete disaster. I think he is acting like another Hitler by inciting racism."


text:
Dragon Ball Z
Zarbon's Surprise
Episode 53 | TV-PG
Vegeta's latest battle heats up as Zarbon reveals his true power: the ability to transform into a monstrous beast! With his increased size and strength, Zarbon seems ready to turn the lights out on the Saiyan Prince - permanently!
Dub Expires: 06-26-2015
Sub Expires: 06-26-2015
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decided: July 7, 1975.
COMMONWEALTH OF PENNSYLVANIAv.WILLIAM JEFFREY PYLE, APPELLANT
Michael B. Kean, West Chester, for appellant.
Robert S. Gawthrop, III, Asst. Dist. Atty., West Chester, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurs in the result.
[ 462 Pa. Page 616]
Appellant, William Jeffrey Pyle, seventeen years of age, was arrested for the shooting death of his father, William M. Pyle, on July 25, 1973. Following his arrest on the charge of criminal homicide, appellant petitioned the Chester County Common Pleas Court to transfer the matter to Juvenile Court for further action pursuant to the provisions of the Juvenile Act, Act of December 6, 1972, P.L. 1464, No. 333, § 7, 11 P.S. § 50-303 (Supp.1974-75). Thereafter, on August 15, 1973, a rule was entered upon the Chester County District Attorney, to show cause why the charge should not be transferred. At that time the Commonwealth announced the filing of a juvenile charge of theft against appellant*fn1 and petitioned the court to transfer this latter charge for adult criminal prosecution, pursuant to the Juvenile Act, id. § 28, 11 P.S. § 50-325. After a full counseled hearing, the lower court discharged the rule and granted the Commonwealth's application for transfer.*fn2 Thereafter, proceeding in the Criminal Division of the Common Pleas Court, appellant pled guilty to both charges. Appellant's degree of guilt was subsequently fixed at murder in the second degree and following the gathering and review of
[ 462 Pa. Page 617]
comprehensive pre-sentencing reports, appellant was sentenced to pay a fine of five hundred dollars ($500.00) and to serve a term of not less than six (6) nor more than sixteen (16) years at an institution to be designated by state authorities. On the related charge of theft, he was sentenced to pay a fine of one hundred dollars ($100.00).*fn3
In this appeal, appellant argues that the lower court erred in determining that there were reasonable grounds to believe he was not amenable to treatment, supervision or rehabilitation within the juvenile court system. (See Juvenile Act, id. § 28, 11 P.S. § 50-325(a)(4)(i)). Accordingly, he contends that disposition of his case should have been made in the Juvenile Court.*fn4 We disagree.
This is the first case to be appealed to this Court involving the new criminal transfer section, Section 7, of the Juvenile Act. This section provides:
"§ 50-303. Criminal proceedings; transfer
If it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this
[ 462 Pa. Page 618]
act shall immediately become applicable, and the judge shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the Family Court Division or to a judge of the court assigned to conduct juvenile hearings, together with a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case. If it appears to the court in a criminal proceeding charging murder, that the defendant is a child, the case may similarly be transferred and the provisions of this act applied. . . ." (Emphasis added).
Under the former Juvenile Court Law, Act of June 2, 1933, P.L. 1433, as amended, 11 P.S. §§ 243-268, there was no allowance for transfer in cases of murder. Once a prima facie case of felonious homicide was made out, the lower court judge had no alternative but to hold the juvenile for further proceedings in the criminal courts. Gaskins Case, 430 Pa. 298, 244 A.2d 662 (1968). See also Commonwealth v. Schmidt, 452 Pa. 185, 299 A.2d 254 (1973); Commonwealth v. James, 440 Pa. 205, 269 A.2d 898 (1970); Commonwealth v. Moore, 440 Pa. 86, 270 A.2d 200 (1970); Commonwealth v. McIntyre, 435 Pa. 96, 254 A.2d 639 (1969). Now, under the new statute, the determination of whether the interests of state and society require prosecution of murder on an indictment is within the sound discretion of the Common Pleas Court. Compare Act of June 2, 1933 P.L. 1433, amendments of June 15, 1939, P.L. 394, 11 P.S. § 256; Commonwealth v. Pouls, 198 Pa. Super. 595, 182 A.2d 261 (1962); Commonwealth ex rel. Firmstone v. Myers, 184 Pa. Super. 1, 132 A.2d 707, cert. den. 355 U.S. 962, 78 S.Ct. 550, 2 L.Ed.2d 537 (1957); Trignani's Case, 150 Pa. Super. 491, 28 A.2d 702 (1942).
Where murder is charged, treatment as a "youthful offender" still does not arise as a matter of right. Nevertheless, the fact that the legislature has widened the avenue for juvenile treatment indicates a belief that there
[ 462 Pa. Page 619]
will be instances where the young offender's need for care, guidance and control as a juvenile outweighs the state and society's need to apply legal restraint and discipline as an adult. The new Juvenile Act, however, does not specifically address the issue of how the court should proceed and by what standards it should determine when in cases of murder transfer of jurisdiction is warranted.
While noting this lack of guidance, the lower court in the instant case, in an attempt to remain within the framework of the new Act, determined that the appropriate standards and procedure for deciding the question of transfer were those set forth in subsection 28(a) of the Juvenile Act.*fn5 Although we agree that this subsection informs the parties of the type of criteria that should be considered before any transfer is made, we
[ 462 Pa. Page 620]
find that the strict application of this subsection in cases of murder places an unnecessary burden on the Commonwealth.
Initially, we note that subsection 28(a) by its very language only addresses the issue of transfer where a petition alleging delinquency has been filed*fn6 and certification to the criminal court is thereafter requested. Nowhere in either Section 7 or Section 28 is there a mandate or even suggestion that the procedures and standards outlined in subsection 28(a) apply when a Section 7 certification to the juvenile court is requested. Nevertheless, since subsection 28(a) is the only expression of legislative intent directed to the transfer question and since like purposes are served by a subsection 28(a) transfer and retention of jurisdiction under Section 7, we believe consideration of Section 28(a) is necessary here.
As one commentator recently noted, subsection 28(a) contains a codification of those requirements outlined by the United States Supreme Court in the landmark decision of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).*fn7 In Kent, the Supreme Court reviewed the special rights and immunities conferred on the juvenile in a juvenile adjudicatory proceeding,*fn8 and concluded that in view of the important
[ 462 Pa. Page 621]
procedures and benefits conferred,*fn9 the decision whether to criminally prosecute the juvenile in the adult court is a "critically important" one. 383 U.S. at 560, 86 S.Ct. 1045. Consequently, in order to try in a criminal court any person who might qualify as a juvenile, the waiver into such criminal court must be in a manner conforming to due process of law.*fn11
Although the Kent decision and subsection 28(a) involve the "waiver of the original and exclusive jurisdiction of the juvenile court," we believe an adult criminal court, when dealing with a person who might potentially qualify for treatment as a juvenile, must follow the same due process requirements. The privileges of juvenile jurisdiction, although not conferred in the first instance, are potentially as important to the youth accused of murder as the youth accused of delinquency. Assuming there are those who would initially be within the jurisdiction of the criminal court and who would be deserving of transfer, the only way to insure that such juveniles are not arbitrarily denied access to juvenile treatment is to insist that they be given the same procedural rights.
[ 462 Pa. Page 622]
In the instant case, appellant received the necessary procedural safeguards. However, the court went one step beyond guaranteeing a "fair hearing" when it required that a full subsection 28(a) determination be made. Once finding a prima facie case of murder, it was not necessary to make the "negative inquiry" found in subsection 28(a)(4). By placing the questions in such a posture, the lower court incorrectly assumed, that in every case where a transfer is requested, the Commonwealth has the burden of disproving that the juvenile court is entitled to jurisdiction over the juvenile.*fn12
Murder had always been excluded from the jurisdiction of the juvenile courts. See Act of July 12, 1913, P.L. 711, § 11, as amended, 17 P.S. § 694, Gaskins Case, 430 Pa. 298, 244 A.2d 662 (1968). See also Mont. Appeal, 175 Pa. Super. 150, 103 A.2d 460 (1954). Having continued to place murder, even where a young offender is involved, within the original and exclusive jurisdiction of the adult court, the assumption that the need for adult discipline and legal restraint exists in cases of this heinous nature also continues. With this in mind it becomes the juvenile's burden to show that he does not belong in the criminal court.*fn13 In other words, it is the youth who must prove that he belongs in the juvenile setting
[ 462 Pa. Page 623]
by showing his need and amenability to the "program of supervision, care and rehabilitation" which he would receive as a juvenile.*fn14 In the event the evidence does not affirmatively demonstrate that he is the kind of youth who would benefit from the special features and programs of the juvenile court system and in the event no special reason exists for sparing the youth from adult prosecution and punishment (as for instance, evidence of mental illness or retardation) jurisdiction would necessarily remain within the criminal court system.
In the instant case, the appellant based his transfer request on his need for psychiatric treatment. The evidence presented by appellant tended to corroborate that he was "emotionally unstable," and that his problems were "deep-seated" and "capable of producing the most dangerous of consequences." Nevertheless, there was no indication that juvenile facilities would assure
[ 462 Pa. Page 624]
rehabilitation commensurate with the serious nature of appellant's problem within the time limitations available to such facilities.*fn15 The only evidence on this issue came from appellant's own expert, who indicated there was a likelihood it would be necessary to continue treatment beyond appellant's minority and that a successful result would not be accomplished within three years. It was on this basis, that the lower court concluded there were reasonable grounds to believe appellant was not amenable to treatment supervision or rehabilitation as a juvenile within existing juvenile facilities.*fn16
We are convinced the appellant did not show he was amenable to treatment as a juvenile. Since no other reason was given in favor of certification to the juvenile court and, since the "non-amenability" found by the hearing judge was supported by the evidence, we do not find an abuse of discretion. Accord Commonwealth v. Pouls, 198 Pa. Super. 595, 182 A.2d 261 (1962); Ciammai chella Appeal, 169 Pa. Super. 240, 82 A.2d 560 (1951) affirmed 369 Pa. 278, 85 A.2d 406 (1952); In re Weintraub, 166 Pa. Super. 342, 71 A.2d 823 (1950). Accordingly, we find that based on the record presented below, the decision to proceed in criminal court was warranted.
Judgment of sentence affirmed.
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Lower (Far) Caves of the Lavra
Kiev Pechersk Lavra is one of the Seven Wonders of Ukraine, and was named a World Heritage Cultural Site in 1990 (in conjunction with Saint Sofia's Cathedral). The following are a few of the areas historical monuments. Within these territories are numerous architectural monuments, ranging from bell towers and cathedrals to underground cave systems and stone fortification walls.
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Hotel Hyatt At Fishermans Wharf
Service & facilities
|Earliest check-in
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Service & facilities
Hotel facilities
- Elevator
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Hotel data
child-friendly hotel
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Accepted payment methods
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555 North Point St, 94133 San Francisco -
1 mile to financial district, Chinatown and North Beach 4 blocks from Pier 39, The Cannery and Ghirardelli Square 18 miles from San Francisco International Airport 20 miles to Oakland International Airport Nearby towns include Marin, Sausalito, Burlingame Near San Jose, Napa Valley, Monterey and Carmel, , Golden Gate Park, , , Six Flags, Napa Valley, , Outdoor heated pool and spa,
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Adventure of the King
Release Date: January 1st, 2010
Not Yet Rated|1 hr. 49 min.
Plot Summary
An amnesiac prince (Richie Ren) develops tasty dishes for a kind innkeeper (Barbie Hsu).
Cast: Richie Ren, Barbie Hsu, Natalis Chan Bak-Cheung, Law Kar Ying, Siu-Lung Leung, Siyan Huo, Pan Changjiang, Chen Zhi Hui
Director: Chung Shu-Kai
Genres: Comedy


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THIS IS A DIRECTORY PAGE. Britannica does not currently have an article on this topic.
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major reference
The various kinds of collective obsession—fads, hysterias, and the like—have three main features in common. (1) The most conspicuous sign is a remarkable increase in the frequency and intensity with which people engage in a specific kind of behaviour or assert a belief. There was an "epidemic" of flying-saucer sightings; children in every residential neighbourhood in the...


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Fryeburg Hotels
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125 Old Saco Lane
7.3 miles from city center
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Having undesirable fat in different areas of your body can have a considerable influence on your health and self-confidence. While traditional weight-loss through workout and diet is a fantastic method to drop weight in general, even the very best exercises cannot target issue locations like the tummy, inner thighs, arms, and buttocks. Liposuction is a time evaluated treatment that is utilized to eliminate excess fat from particular locations of the body, permitting a specific to form and contour their body to their preference. Is liposuction right for you? Find out now.
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Stockholm Arlanda Airport today welcomes H&M, which is opening its first ever pop-up shop in Terminal 5. The shop sells H&M's expanded sportswear selection, developed for the Olympic and Paralympic games in Sochi. The potential of reaching hundreds of thousands of passengers from Sweden and other parts of the world led H&M to choose Stockholm Arlanda.
The pop-up shop is to be inaugurated on Friday, January 17, at 12.00 noon in Terminal 5 after the security checkpoint. It offers H&M's expanded selection of sportswear as well as its Go Gold collection, which is inspired by the clothing H&M designed to be worn by the Swedish athletes competing in the Olympics and Paralympics. The shop will be open until February 23, 2014.
"With H&M's pop-up shop at Stockholm Arlanda, we want to surprise our customers and draw their attention to our expanded sportswear line and to the fact that we have designed clothes for the Swedish athletes competing in the Olympic and Paralympic games. We have chosen Stockholm Arlanda as the site of our first ever pop-up shop because it is a place that many people pass through and we have a chance to reach both Swedish and international passengers," says Martino Pessina, country manager at H&M in Sweden.
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This is my second vehicle purchased with Cesar Nieto. He is an excellent sales person! Really happy with the deal I got on my new 2016 Chevy Malibu. Highly recommend Fairway Chevrolet go see Cesar Nieto for your next car purchase!
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4 Bedrooms, 3 bathrooms, 2 sitting rooms, 2 kitchens, 28ft conservatory
A great Christmas and New Year getaway. A stunning detached rural property with amazing stars on a clear night. Complete with a separate but attached fully independent and fully fitted one bedroom apartment this property is finished to a very high standard and is a league above the standards of many rental properties. The property sleeps 8 in four lovely bedrooms,. There are also 2 comfortable double bed leather Chesterfield settees situated within a 28ft conservatory, with an oak dinning table that accommodates up to 14 people together with a 18Kw log burner, hifi system (with Cambridge amplifier) and a separate TV.
A further two sided 12 Kw log burner is situated in the main sitting room, together with a hifi system and 51" TV.
The master bedroom has a en suite wet room a 32" TV, with a separate roll topped bath within the master bedroom.
All bedrooms are furnished to a very high standard,
There is a sun house, barbecue and ample seating in the rear garden, with lovely views over rolling farm land. There is plenty of parking for 5 + cars
Hindscarth is surrounded on 3 sides by areas of outstanding natural beauty, the national cycle trail runs past the property, Bodmin Moor is 1/2 a mile away. There are 2 golf courses within a 10 minute drive. Doc Marten was filmed nearby. A 5 mile hike across the moor will take you to Daphne du Mauriers Jamaica Inn. The Eden Project is approx 30 mins away by car. Boscastle is a 10 min drive away and King Arthurs ruins are also 10 mins away at Tintagel
Top Traveller Review
Holiday at Hindscarth
About the Owner
Property is only available for limited lets as it is the owners main residence. More photograps avaiable, please ask when enquiring.
1 Reviews
1 holidaymaker review
Holiday at Hindscarth
This is a beautiful home which was very welcoming and lovely to stay in. We were there for 3 weeks and due to the size of the property were able to have lots of people stay and enjoy the very sociable accommodation. I would be happy to recommend the house, location and the service. The house was perfect for my husband, who is a wheelchair user, without being the kind of institutional accommodation which is often offered to people on wheels. I spent many happy hours looking at the lovely views either from the conservatory or the very comfortable bath.
From the Owner
"A stunning detached rural property, this property is finished to a very high standard and is a league above the standards for many rental properties."
Activity and Interests
Hindscarth is surrounded on 3 sides by areas of outstanding natural beauty, the national cycle trail goes past the property, Bodmin Moor is 1/2 a mile away. There are 2 golf courses within a 10 minute drive. Doc Martain and Poldark filmed nearby. A 5 mile hike across the moor will take you to Daphne du Mauriers Jamaica Inn. The Eden Project is approx 30 mins away. Boscastle is a 10 min drive away and King Arthurs ruins are also 10 mins away at Tintagel
Rental rates
|Rental Period
|Minimum Price
|Additional Nights
|Weekend Night
|Event Price
Christmas nd New Year
20 Dec 2016 - 3 Jan 2017
7 night minimum stay
for 7 nights
My Standard Rate
7 night minimum stay
for 7 nights
Additional pricing information
|No additional mandatory fees
|Refundable Damage Deposit
One third is payable on booking, the balance is due one week before arrival
Manager's Cancellation Policy
- 12
- Available arrival
- 12
- Available
- 12
- Unavailable
From the Owner
"The property is nestled in the Cornish countryside, with stunning rural views, it is a very happy place with lots of good memories, and not your usual holiday rental home."
Property Type
- bungalow
- Away From It All
- Family
- Historic
- Romantic
- Sports & Activities
- Tourist Attractions
- Hair Dryer
- Heating ...
- Internet ...
- Iron & Board
- Linens Provided ...
- Living Room ...
- Parking ...
- Towels Provided ...
- Washing Machine
- Wood Stove ...
- Coffee Maker ...
- Dishes & Utensils ...
- Kitchen ...
- Microwave ...
- Oven ...
- Pantry Items ...
- Refrigerator ...
- Hob ...
- Toaster ...
- Child's Highchair
- Dining ...
- Dining Area
- Books ...
- DVD Player ...
- Satellite / Cable ...
- Stereo ...
- Television ...
- children welcome
- non smoking only
- pets considered
- wheelchair accessible
Location Type
- beach
- near the sea
- rural
- village
- autumn foliage
- churches
- forests
- museums
- recreation centre
- restaurants
Leisure Activities
- beachcombing
- bird watching
- horse riding
- scenic drives
- sight seeing
- walking
Local Services & Businesses
- ATM/bank
- Babysitter
- groceries
- massage therapist
- medical services
Sports & Adventure Activities
- cycling
- equestrian events
- fishing
- fly fishing
- freshwater fishing
- golf
- golf pass optional
- hiking
- mountain biking
- paragliding
- sailing
- swimming
- tennis
- wind-surfing
- Bathroom 1 - Toilet, Bath with Shower
- Ensuite - Toilet, Shower Enclosure, Wet Room, with powerfull shower & roll top bath in bedroom
- Bathroom 3 - Toilet, Shower Enclosure, Apartment Bathroom
- 1 Full Bathroom, 1 quality Wet Room with power shower plus a 2nd bath in the Master Bedroom, Apartment Shower room.
- 4 Bedrooms, Sleeps 12
- Bedroom 1 - 1 Extra Lg. Double Bed, King Size Bed
- Bedroom 2 - 1 Double Bed
- Bedroom 3 - 1 Double Bed
- Conservatory - 2 Double Bed, There are 2 Chesterfield bed settees in the Conservatory
- Apartment Bedroom - 1 Extra Lg. Double Bed, A good quality bedsettee can also be added to the apartment
- 4 Lovely Bedrooms
- Terrace ...
- Golf ...
- Garden ...
- Barbecue
- Self-catering


text:
International Edition
December, 10, 2016
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The world's largest contract electronics maker and a supplier of iPhones Hon Hai Precision Industry Co. (鴻海), also known as Foxconn, said Wednesday the group was considering possible opportunities in the U.S. but had not yet decided on the size and scope of its investments.
Far Eastern Group Chairman Hsu Hsu-tung (徐旭東) speaks at a conference about mobile payment, Wednesday, Dec. 7.
Taiwan-based smartphone brand HTC Corp. (宏達電), which has intensified efforts to enter the global virtual reality market, held the first-ever Vive X Demo Day on Dec. 7 to demonstrate the achievements of startups in VR development.
EVA Air's new helping hand Pepper offers a sneak peek of its offerings, Wednesday, Dec. 7.
Shares in Taiwan closed slightly higher on Wednesday, extending the momentum from the previous day, but moved in a narrow range throughout the session, with gains capped ahead of strong technical resistance around the 9,300-point mark.
Taiwan's exports in November are expected to post double-digit year-on-year growth thanks to an economic recovery in the second half of this year, Minister of Finance Sheu Yu-jer said Wednesday.
Two Taiwanese chemical firms have been imposed anti-dumping tariffs by Brazilian authorities after a final ruling pointed out that they sold polyethylene terephthalate (PET) resin at unfairly low prices in the Latin American country, the Ministry of Economic Affairs (MOEA) said.
Hundreds of protesters performed funeral rites outside the Legislative Yuan on Tuesday evening, symbolizing the "death of democracy," as lawmakers passed a labor bill that eliminates seven statutory holidays for private sector workers.
Taiwan risks "going backward" if it fails to embrace new technologies, Uber's regional chief said Tuesday at a press conference in Taipei.
Formosa Plastics Group (FPG) held a press conference on Tuesday, Dec. 6 to discuss its production and sales performance for the month of November.


text:
Guest reviews
Overall rating
9.6 Excellent
based on 513 reviews
Good to know
"Pleasant entrance area"
"Luxurious Hotel"
"Friendly service"
"Good management"
data provided by TrustYou
With a stay at Yangshuo Travellers Land Youth Hostel in Guilin (Yangshuo), you'll be close to Yangshuo County Museum and Butterfly Spring Park. This property is within the vicinity of Moon Hill and Dragon Bridge. Make use of convenient amenities, which include complimentary wireless Internet access and tour/ticket assistance. Quench your thirst with your favorite drink at a bar/lounge.


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APPEAL from the Circuit Court of Macon County; the Hon. JOHN
L. DAVIS, Judge, presiding.
This appeal is from a judgment in the amount of $4760.88 and costs entered in favor of the owners of a shopping mall for rent due under the terms of an oral lease as found by the trial court.
Although the underlying facts are not in dispute, a reasonably complete summation is required in order to understand the circumstances and analyze the disputed oral lease.
On June 30, 1967, the defendant entered into a written one year lease to occupy space in the plaintiff's covered shopping mall in Decatur, Illinois. This lease, which was to run from August 1, 1967, to July 31, 1968, provided for a base rental of $150 plus $15 for maintenance each month, and, in addition, an overage of 6% of the annual gross sales in excess of $30,000 to be paid within thirty days of the end of the lease year. On February 14, 1968, the parties executed a written extension of the above lease to run an additional year, from August 1, 1968, to July 31, 1969.
Over a period of time prior to the expiration of the extended written lease, the parties had a series of discussions concerning the defendant's continued occupation of space in the mall. As a result of these discussions, but without any written agreement, defendant continued to occupy the same space for one month after the written lease expired, and then on September 1, 1969, defendant moved into a larger space in the mall and conducted its business there until September 30, 1970. During the thirteen months in the new larger quarters, the defendant paid the plaintiff rent of $200 a month plus $20 maintenance. While defendant's gross profits of roughly $35,000 the first year and $65,000 the second year resulted in respective overage payments of $315.60 and $2011.80 in addition to the base rent under the written lease, the third year defendant grossed about $125,000 paying no overage.
The plaintiff contends that prior to the defendant's move into the new larger space in the mall, it was agreed that the base rental would be $200 a month plus $20 for maintenance and 6% of the annual gross sales in excess of $40,000. The defendant asserts that the agreement was simply to pay $200 a month as rent and a $20 maintenance fee. The plaintiff's wife testified that in February 1970, at the defendant's request, she prepared a written lease and mailed it to the defendant. The president of the defendant corporation testified that she had never desired a written lease and had never requested one. In addition to the testimony of the three above parties a number of written documents exchanged between the two parties were admitted into evidence. A great number of them are irrelevant, concerning tardy statements of profits as required under the original written lease and disputes from time to time over late payments of the maintenance fee which defendant periodically withheld on the grounds that cleaning and other maintenance was not properly performed. More significant is a letter from plaintiff to the defendant dated February 20, 1970, mentioning that the sales figures for the year ending August 1969 were not yet reported and that the defendant had not paid the $20 maintenance fee for February 1970 and then demanding that the defendant either sign a written lease as prepared by the plaintiff's wife providing for $200 a month base rental plus 6% of the excess gross over $40,000 by March 1, or go to a new rental agreement providing for $250 a month or 10% of the net profit, whichever was higher, and that if neither rental agreement was signed and returned by March 1, the rent would henceforth be $350 a month. Then on February 21, 1970, a letter from the plaintiff stated that 30 days notice of a rental adjustment was being given and that on April 1, the rent would be $350 a month. Also in evidence is a letter to the plaintiff, dated February 24, 1970, by which the defendant gave notice of intent to terminate the lease on or before March 31, 1970. Most significant of all was the introduction into evidence of the plaintiff's letter of February 12, 1970, demanding that defendant sign the included lease which was also admitted into evidence over the defendant's objection, and which stated that it was an extension of the original written lease except that it covered the different larger space with a base rental of $200 a month plus $20 maintenance and an average of 6% on gross profits over $40,000.
The defendant objected to the introduction of the lease prepared by the plaintiff's wife and signed only by the plaintiff as being a self-serving document and not available as an extension of the lease agreement, but only plaintiff's version of what the agreement was was put in written form. The plaintiff asserted that it was not a binding lease but it was evidence relative to "* * * the consummation of the oral agreement to which testimony was given." Plaintiff stated that both the plaintiff and his wife had testified that there was an agreement and that the writing simply showed what it was, and "I think it's relevant to confirm the fact that there was in fact a reduction to writing of the oral agreement and in fact it proves that there was an oral agreement. It is our contention that the oral lease or written lease is consequently a relevant piece of evidence and should be admitted to determine whether the oral lease was extended as testified to in this case." Defense counsel answered that it was a self-serving document, particularly when the wife had testified that she put in it what she was told by her husband (plaintiff). The court said that the document was not binding but it was evidence of what had been testified to orally: "I think it's admissible on the basis that it goes to the seat of the issue before the court and I think the court is in a position to accept it along with the other exhibits." That lease prepared by the plaintiff and admitted as above described referred to the original written lease stating that all of the terms of it were to be extended when the plaintiff moved to the larger quarters on September 1, 1969, with the new base rental to be $200 a month plus $20 maintenance and an overage of 6% on the excess of $40,000 gross profit with all other provisions to remain the same. That lease was dated September 1, 1969, and signed by the plaintiff although both the plaintiff and the plaintiff's wife testified it was prepared in February of 1970.
In general, plaintiff's testimony as to the negotiations preceding the defendant's move into the larger quarters consisted of what his belief or what his understanding of the agreement was, although at one point when directly asked what he had told the defendant the rent would be for the additional space, he answered: $200 per month plus the 10% maintenance cost." This is the only reference in the record as to what plaintiff told the defendant the rent would be.
Also, when testifying to typing the lease described setting forth the terms according to plaintiff's viewpoint, plaintiff's wife testified that she was aware that there was an ongoing dispute between the defendant and plaintiff concerning the terms of the rental agreement on the new larger space.
On the defendant's side, in addition to her testimony denying that there was any overage under the new oral agreement, a letter dated December 16, 1969, from the defendant to the plaintiff was introduced which stated that before moving to the new location the terms for the rent were completely decided and: "At that time and still continuing, the rent is $200 per month; no more and no less. This amount was agreed upon explicitly. The terms are binding as agreed upon at $200 a month."
Plaintiff's complaint was filed on November 13, 1970, and defendant's answer of December 2, 1970, responded to all three counts and as an affirmative defense stated that on August 1, 1969, an oral lease was negotiated providing for a rental of $200 a month and $20 maintenance, and that the plaintiff had accepted that rent through August 31, 1970, when the defendant finally vacated the premises.
A judgment order was handed down on March 16, 1972, awarding the plaintiff the sum of $4,760.88 finding that the plaintiff's Count I was proved by a preponderance of the evidence.
• 1 "A self-serving declaration is a statement, oral or written, or an equivalent act, by or on behalf of a party which if admitted would constitute evidence in his favor." Werdell v. Turzynski, 128 Ill. App.2d 139, 150, 262 N.E.2d 833.
• 2 Letters between parties may be admitted as part of a mutual correspondence, and such correspondence which was carried on in the course of business and disclosing the nature of the transaction in question may be admissible. (Estate of Fushanis v. Poulos, 85 Ill. App.2d 114, 229 N.E.2d 306.) However, where such letters are merely self-serving they should generally be excluded. City of Chicago v. Carpenter, 95 Ill. App.2d 81, 238 N.E.2d 70.
• 3, 4 A memorandum relating to the terms of an oral contract which was made at the time by one of the parties negotiating the contract and read to the other without dissent or made in such circumstances as to indicate mutual assent, although not a valid written contract, may be competent as substantive evidence tending to establish along with other evidence the terms of the contract. (Central Mutual Insurance Co. of Chicago v. St. Paul Mercury Indemnity Co. of St. Paul, 291 Ill. App. 50, 9 N.E.2d 355.) But, where such a memorandum is made after the transaction and not in the presence of the opposite party, it cannot be used for the purpose of establishing the facts therein contained, but only to refresh the recollection of a witness. Juilliard v. Friedman, 174 Ill. App. 259.
The proposition that rulings of the trial court with respect to the admissibility of evidence should be presumed correct by a reviewing court in the absence of a showing to the contrary applies to documentary evidence. Novitsky v. Knickerbocker Ice Co., 276 Ill. 102, 114 N.E. 545.
• 5-7 Not every erroneous ruling on evidence is ground for reversal. Such rulings are harmless where the result reached was not affected thereby and was the only one warranted by the other evidence in the case. (Gillespie v. Norfolk & Western Ry. Co., 3 Ill. App.3d 779, 278 N.E.2d 420.) In a case tried by the court without a jury, error in admitting incompetent evidence is not ground for reversal where there is sufficient competent evidence fairly tending to support the judgment. (McFail v. Braden, 19 Ill.2d 108, 166 N.E.2d 46.) A reviewing court will affirm the judgment of the trial court if it is justified in the law for any reason or grounds appearing in the record (Ingram v. License Appeal Com., 131 Ill. App.2d 218, 268 N.E.2d 469); and, in the absence of a showing that the evidence was insufficient, the reviewing court will presume that the verdict was based on sufficient evidence. (E.H. Chicoine Contractors, Inc. v. Investors Realty and Management Corp., 130 Ill. App.2d 256, 264 N.E.2d 765.) However, there must be some legally sufficient ground to support a judgment. McCarthy v. Katzin, 318 Ill. App. 639, 48 N.E.2d 554.
• 8 Where there is conflicting evidence the appellate court is not authorized to determine on which side the preponderance lies because the question of preponderance does not arise in the appellate court. (Brannen v. Fisher, 57 Ill. App.2d 64, 206 N.E.2d 458.) However, where a judgment is palpably wrong, either contrary to the evidence or with no evidence at all to support it, it is the duty of the reviewing court to set it aside. Allendorf v. Elgin, J. & E. Ry. Co., 8 Ill.2d 164, 133 N.E.2d 288.
• 9-11 In the instant case the trial court erred in admitting into evidence the "written lease" prepared and signed by the plaintiff alone in February 1970 approximately six months after the original written lease as extended had expired, and defendant had moved into the new larger premises. Without this document there is no evidence to support the judgment and it must therefore be reversed. The exhibit in point was clearly a self-serving document and is not admissible under any exception such as to show that there was an ongoing controversy between the parties or to show that plaintiff's position was consistent when defendant asserts otherwise. A judgment cannot be sustained merely by conclusions as to what the parties most likely intended, no matter how reasonable it may appear. Plaintiff at one point testified that the original written lease was "extended" and that is the import of the lease prepared by plaintiff on February 12, 1970. However the original lease had expired by its own terms, the new tenancy covered a different location in the mall, and even according to plaintiff's version, both the base rental and the overage was altered. Therefore, plaintiff's case consists of his own testimony that the overage was a part of the oral lease, but even that is diluted by plaintiff's and his wife's testimony as to a continuing controversy between the parties over the rent and plaintiff's attempt to change the rental in March of 1970. The gist of plaintiff's case, even in his brief on appeal, is that the parties must have intended for there to be an overage because the earlier written lease so provided, and it would not be reasonable for plaintiff to have provided a much larger space to a very successful business for less total rent than before. The judgment for plaintiff cannot be upheld merely because it seems logical or probable that the terms of the oral lease were as plaintiff contends. Therefore the decision of the trial court was against the manifest weight of the evidence and must be reversed.
CRAVEN, P.J., and SMITH, J., concur.
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Alternative Titles
Synonyms: Red Hat, Minna no Uta
Japanese: 赤い帽子
Type: Music
Episodes: 1
Status: Finished Airing
Aired: Oct, 1984
Producers: NHK
Licensors: None found, add some
Studios: None found, add some
Source: Unknown
Genres: Music, Slice of Life
Duration: 2 min.
Rating: G - All Ages
Score: 5.521 (scored by 189 users)
1 indicates a weighted score. Please note that 'Not yet aired' titles are excluded.
Ranked: #73382
2 based on the top anime page. Please note that 'Not yet aired' and 'R18+' titles are excluded.
Popularity: #8415
Members: 387
Favorites: 0


text:
Sleep Apnea Diagnosis and Treatment
If you suffer from sleep apnea (a condition that more than 20 million Americans suffer from), you know how uncomfortable it can be. Although you may not actually recognize that you have sleep apnea in your waking hours, it will leave you feeling tired and drowsy throughout the day. If it goes on long enough, it can actually increase your chances of having high blood pressure and related problems like stroke or heart attack.
What is sleep apnea?
Sleep apnea simply means that you stop breathing temporarily when you're sleeping. There are two basic types of sleep apnea, central sleep apnea and obstructive sleep apnea. Central sleep apnea is a very serious condition that should have immediate medical attention, while obstructive sleep apnea often requires a different kind of attention. With central sleep apnea, your body simply "forgets" to make you breathe. Obstructive sleep apnea is caused because your airway is blocked in some way, temporarily.
Most people (9 out of 10) who have sleep apnea suffer from obstructive sleep apnea. This can happen because you are overweight or obese, wherein fat deposits in the throat actually make your throat or chest "cave in" on itself and temporally obstruct your breathing. The sleep apnea itself is interrupted when you change positions so that your airway opens up again.
People who suffer from either kind of sleep apnea don't get enough random eye movement sleep, known as REM sleep. Once people have taken steps to cure their sleep apnea, they feel much better, sometimes like completely different people; fresh, new and alive.
How do you treat obstructive sleep apnea?
There are a number of methods to treat obstructive sleep apnea, and some of them may require medical supervision. However, one of the easiest things to try is simply changing your pillows, mattress and/or sleeping positions.
Memory foam can help
Companies have jumped on board by producing special pillows designed specifically for sleep apnea so that one can sleep on his or her side. Sleeping on your side helps reduce the weight on your chest and throat, and also lets you align your internal air passages much more easily. However, many people are uncomfortable when they sleep on their sides, which can be a problem. Memory foam mattresses or mattress toppers can help make it more comfortable to sleep on one side by relieving pressure points, which can also disturb sleep.
Therefore, if you suffer from obstructive sleep apnea, you may want to try a memory foam mattress and/or topper, plus memory foam pillows, which will allow you to change sleeping positions; by changing sleeping positions and sleeping on your side, obstructive sleep apnea may be a thing of the past. Sweet dreams!
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Most people already know that it is extremely important to get a good night's rest. With so much to do during our days, it is important to make sure that you not only get at least 8 hours of sleep, but also...
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A memory foam mattress could be the thing you need to improve your sleep and make your nights a lot more restful. Foam mattresses (commonly called memory foam mattresses) include visco elastic foam to provide...
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Comments 1 comment
Thank-you for the explanations of the two different types. My significant other has this condition, and needs a cpap breathing machine to control his. I'll mention the memory foam idea to him and see if he's interested in maybe trying that, too.


text:
Girls Hit Guys, WATCH What Their Get In Return (Video)
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Nyjer Seed
Nyjer seed and sunflower hearts are one of goldfinches favourite treats, so if you fancy going for gold in your garden, then seed feeders are one of the easiest things you can do! #homesfornature
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I helped give nature a home and bought Goldfinch mini nyjer seed feeder from the RSPB. http://shopping.rspb.org.uk/goldfinch-mini-nyjer-seed-feeder.html
Nyjer seed bird food-This tiny, oil-rich, energy-giving black seed is highly nutritious and may well entice goldfinches, greenfinches and siskins into your garden, if they are already present in your area.
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The American Goldfinch (Carduelis Tristis), also known as the Eastern Goldfinch and the Wild Canary, is a small North American bird in the Finch family.
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Imagine being tricked and told what to do by a clever and unique-looking insect! Well, that's what happens to a man named Carl after he falls for an ingenious scheme devised by a clever grasshopper named Green King, who is the ruler of a town called Lily Green.
The new clueless chef doesn't realize that his life is about to change forever. What he knows about insects does not prepare him for what he is about to experience by coming to this unimaginable town after accepting the brilliant ruler's offer for him to be the new chef. Read more
About William N. Brown, Jr.
My name is William N. Brown, Jr., and it gives me great pleasure to introduce to you my second published children's book titled Little Green King. For those of you who aren't aware, my first published book is titled Jimmy's Alphabet Garden. Read more
Excerpt from the Book
Carl Johnson had just left the airport and to his surprise Lily Green looked like a jungle.
Read more


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The X200 is part of the ASUS range of laptops that strike a great balance between design, performance, mobility and productivity. Given its distinctive look, the X200 showcases the flair and fun of the Windows 8 operating system that runs on the high-tech Intel® Celeron® processor that offers full PC performance with a streamlined workflow.

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