author: HESTER, Judge.

text:
    626 A.2d 1243
    EQUIBANK, Personal Representative of the Estate of Stephen M. Daniel, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and John M. Daniel, Jr. Appeal of STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, (Three Cases) Russell J. BARKLEY, Jr., v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and George M. Shernock, Appeal of STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, (Three Cases)
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1992.
    Filed May 6, 1993.
    Reargument Denied July 8, 1993.

      Thomas F. Weis, Pittsburgh, for appellants.
    Beth A. Brown, Pittsburgh, for appellees (at 343, 344 and 356).
    Clem C. Trischler, Pittsburgh, for appellees (at 345, 346 and 626).
    Before TAMILIA, JOHNSON and HESTER, JJ.
   HESTER, Judge.

State Farm Mutual Automobile Insurance Co. appeals from summary judgment entered against it in these consolidated declaratory judgment actions. The issue presented is whether an anti-stacking clause that appears in both policies is clear and unambiguous. As we conclude that the anti-stacking provision is clear, we reverse the determination of the trial court and grant appellant’s motion for summary judgment.

The relevant facts are as follows. Four of these appeals relate to trial court docket number G.D. 88-9064, which was instituted by Russell Barkley, Jr. State Farm issued two policies of automobile insurance to George Shernock, who owned two automobiles. Mr. Barkley was paralyzed when his vehicle was struck by an automobile operated by George Shernock. Marlin D. Shernock owned the car being operated by George. At the time of the accident, Marlin was insured through State Farm, which had primary liability coverage of $100,000. State Farm paid this policy to Mr. Barkley. State Farm also issued a policy of insurance to George’s daughter, Georgia, with whom George resided. That policy provided $100,000 in excess liability coverage for relatives who resided with the insured who were involved in an automobile accident. State Farm paid the limits of that insurance policy to Mr. Barkley.

With respect to the two policies issued to George on his two cars, each provided personal injury liability coverage in the amount of $100,000 for bodily injury caused when the insured was driving an automobile owned by a third party. State Farm tendered the liability limits under one of those policies but denied that it had an obligation to indemnify under the other policy based upon an anti-stacking provision, which appears in both and reads as follows: “Policies Issued by Us to You. If two or more vehicle liability policies issued by us to you apply to the same accident, the total limits of liability under all such policies shall not exceed that of the policy with the highest limit of liability.” Reproduced record at 14a (“R.R.”). This provision appears in the same section of the policy that provides coverage for use of non-owned vehicles. Mr. Barkley instituted a declaratory judgment action against State Farm and its insured, George Shernock, at No. G.D. 88-9064.

Three appeals relate to trial court docket number G.D. 89-4042. The facts relating to that proceeding are as follows. Stephen M. Daniel was killed in a one-car collision while a passenger in a car being operated by his father, John M. Daniel, Jr. The vehicle was owned by Stephen, who lived with his sister, Mary. Stephen was insured under an Erie Insurance Company policy for primary liability coverage of $50,000, which was paid to Equibank, N.A., personal representative of Stephen’s estate. Mary owned a State Farm policy providing for underinsured coverage in the amount of $50,000 for resident relatives involved in motor vehicle accidents. State Farm tendered that coverage to Equibank. John Daniel was insured under two policies providing for coverage in the amount of $50,000 payable if the insured caused bodily injury while operating a non-owned vehicle. The policies contained the same anti-stacking provision as the policy in the Shernock policy. State Farm tendered the $50,000 due under one policy. Equibank instituted a declaratory judgment action against State Farm at G.D. 89-4042.

The two proceedings were consolidated, and cross-motions for summary judgment were filed. The trial court found against State Farm, refusing to give effect to the anti-stacking clause based on the fact that it was unclear and ambiguous. State Farm filed four notices of appeal from that same order. Two notices from that order were filed at G.D. 88-9064. In one notice of appeal, State Farm asserts that it is appealing the grant of summary judgment to Mr. Barkley. In the other, it asserts that it is appealing the denial of summary judgment against it as to Mr. Barkley. The appeals relating to G.D. 88-9064 are docketed at numbers 345 and 346 Pittsburgh, 1992.

State Farm also filed two notices of appeal from the same order granting summary judgment at G.D. No. 89-4042. In one notice, it asserts that it is appealing the denial of summary against it as to Equibank. In the other, it states that it is appealing the grant of summary judgment in favor of Equibank. Then, Equibank filed a praecipe for judgment at G.D. No. 89-4042. State Farm filed another notice of appeal from that judgment. Finally, the trial court amended its grant of summary judgment at G.D. No. 89-4042. State Farm filed a notice of appeal from the amendatory order. The appeals relating to G.D. No. 89-4042 are docketed at 343, 344, 356, and 626 Pittsburgh 1992. All six appeals were consolidated for our review.

Initially, we observe that the sole issues raised on appeal are whether the anti-stacking clause is clear and unambiguous and whether enforcement of the provision would defeat the reasonable expectation of the insureds. Equibank argues only that the provision defeats the insured’s reasonable expectations and that the anti-stacking clause is ambiguous and unclear “as to whether this coverage exclusion provision applies to the non-owned vehicle excess liability coverage which is provided in both policies.” Appellee Equibank’s brief at 9. Equibank does not argue that the provision is unenforceable under Pennsylvania law.

Similarly, Mr. Barkley does “not dispute that Pennsylvania law permits policy provisions which prohibit stacking of liability limits as long as those provisions are clear and unambiguous.” Appellee Barkley’s brief at 14. Mr. Barkley “submits that [the anti-stacking] provision is unenforceable because the policy is ambiguous and unclear as to whether this liability limitation clause is applicable to the non-owned vehicle liability coverage provision.” Id. at 16. The trial court granted appellees’ motions for summary judgment based on its conclusion that the anti-stacking clause is unclear and ambiguous because it does not appear in the same paragraph as the non-owned vehicle coverage and because it does not refer expressly to non-owned vehicle coverage.

Our standard of review in this context is as follows: Summary judgment should not be entered unless the case is free from doubt. The relief should be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law____ It has also recently been established that summary judgment is available in a declaratory judgment action. In addition, we have held that an inquiry into whether a particular loss is within the coverage of an insurance policy is a question of law, which may be decided on a motion for summary judgment.

Neil v. Allstate Insurance Co., 379 Pa.Super. 299, 302, 549 A.2d 1304, 1305 (1988) (citations omitted).

At issue is the enforceability of a provision limiting coverage in insurance contracts. In Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983), our Supreme Court held that where the language of a provision in an insurance contract which excludes coverage under certain circumstances is clear and unambiguous, we are required to give effect to the provision. Applying those principles, we have held that an anti-stacking provision is enforceable as long as the language prohibiting stacking is clear and unambiguous. Bishop v. Washington, 331 Pa.Super. 387, 480 A.2d 1088 (1984).

In Bishop, at issue was language appearing in two policies issued to the same insured. As in this case, coverage was sought under both policies for an accident in which the insured was driving a non-owned car. While the policies provided for non-owned vehicle coverage, they also read, “If Property Damage or Bodily Injury Liability coverage in more than one policy applies to a loss, we will pay only up .to the highest limit in any one policy.” Id., 331 Pa.Super. at 391, 480 A.2d at 1090.

We held that this language was a model of clarity and simplicity, easily understandable, and unambiguous. We concluded that the insurer, in accordance with that language, was responsible only for the highest liability coverage limit in any one policy of insurance. See also Antanovich v. Allstate Insurance Co., 507 Pa. 68, 488 A.2d 571 (1985), Pusti v. Nationwide Mutual Insurance Co., 415 Pa. 318, 203 A.2d 660 (1964), and Koval v. Liberty Mutual Insurance Co., 366 Pa.Super. 415, 531 A.2d 487 (1987), where anti-stacking provisions were enforced.

The language at issue herein provides, “If two or more vehicle liability policies issued by us to you apply to the same accident, the total limits of liability under all such policies shall not exceed that of the policy with the highest limit of liability.” R.R. at 14a. This prohibits stacking as clearly and unambiguously as the language at issue in Bishop. The fact that the anti-stacking provision herein does not appear in the same paragraph providing non-owned vehicle coverage does not render it unclear. The anti-stacking provision appears in the same section of the policy providing non-owned vehicle coverage and clearly was intended to apply to such coverage.

There is no requirement that a provision limiting coverage appear in any particular place in an insurance policy. The language at issue herein clearly provides that if two policies issued to the insured apply to the same accident, State Farm will only pay the limits of the higher or highest policy. This language refers to all coverages in the section in which it appears, including non-owned vehicle coverage. In addition, the policy contains another, identical anti-stacking clause which applies to all coverages in the policy. The placement does not render this language unclear. The trial court incorrectly refused to give it effect merely because it did not appear in the same place as the language providing for non-owned vehicle coverage.

We now address appellees’ allegation that enforcement of the provision would defeat the reasonable expectations of the insureds. We addressed the same contention in Koval v. Liberty Mutual Insurance Co., supra, and held that enforcement of a clear anti-stacking provision does not defeat the expectations of an insured unless the insured can establish that he applied and paid for a policy under which he could stack coverage. Neither appellee establishes that the insured applied and paid for a policy that allows stacking, and pursuant to Koval, this argument fails.

We note that appellees rely upon cases involving interpretation of clauses which are not anti-stacking clauses. See Musisko v. Equitable Life Assurance Society, 344 Pa.Super. 101, 496 A.2d 28 (1985); Aetna Casualty and Surety Co. v. Drake, 343 Pa.Super. 114, 494 A.2d 381 (1985). However, Bishop involved interpretation of nearly identical language as that at issue herein, and that case is controlling. The mere fact that the anti-stacking language appears several paragraphs after the coverage provision does not render that language unclear.

Appellees’ reliance upon Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968), and Estate of Rosato v. Harleysville Mutual Insurance Co., 328 Pa.Super. 278, 476 A.2d 1328 (1984), similarly is unavailing. The issue in those cases was not whether an anti-stacking provision was clear and unambiguous. The issue was whether an anti-stacking provision was enforceable under the Pennsylvania Uninsured Motorist Act, 40 P.S. § 2000(a) (repealed). As noted above, appellees concede that a clear anti-stacking provision is enforceable under Pennsylvania law.

Order granting summary judgment reversed. Summary judgment is granted to State Farm Mutual Automobile Insurance Co. Case remanded. Jurisdiction relinquished.

      . Appellant’s sole ground for denying coverage is the application of the anti-stacking provision. See Appellant’s brief at 11. Contrary to the position of the trial court and appellees, appellant does not rely upon an escape clause that also appears in its policies. We, therefore, do not discuss that clause.

        . There is no dispute that George was operating a non-owned vehicle.

      . There is no dispute that John was operating a non-owned vehicle.

      . The caption in this case incorrectly indicates that the appeal at No. 626 relates to G.D. No. 88-9064, but it actually relates to John Daniel, who is involved at G.D. No. 89-4042.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    627 A.2d 183
    COMMONWEALTH of Pennsylvania v. Jasper Earl SANDERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 15, 1993.
    Filed June 17, 1993.

      Joseph P. Burt, Erie, for appellant.
    Bradley H. Foulk, Asst. Dist. Atty., Erie, for Com., appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   WIEAND, Judge:

Jasper Earl Sanders was tried by jury and was found guilty of aggravated assault, recklessly endangering another person and carrying a firearm without a license. Post-trial motions were denied, and Sanders was sentenced to serve consecutive terms of imprisonment for not less than three (3) years nor more than ten (10) years for aggravated assault and not less than one (1) year nor more than five (5) years for carrying a firearm without a license. Thereafter, a direct appeal was filed in which appellant argued that: (1) the evidence was insufficient to sustain the conviction for aggravated assault; (2) the finding of guilt on the charge of aggravated assault was contrary to the weight of the evidence; and (3) the trial court abused its discretion by imposing a sentence in the aggravated range of the sentencing guidelines without stating adequate reasons for doing so.

Prior to addressing the merits of the instant appeal, we observe that appellant’s appointed counsel has petitioned this Court for leave to withdraw from the case because of the absence of any meritorious issues to be advanced on appeal. In order to be permitted to withdraw from the case, counsel must:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or raise any additional points he deems worthy of this Court’s review.

Commonwealth v. Saunders, 394 Pa.Super. 347, 348-349, 575 A.2d 936, 937 (1990). See: Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Counsel has generally complied with these requirements. Our role, then, is to conduct an independent review of the record to determine whether counsel’s assessment that the appeal is frivolous is correct. If counsel’s assessment of the case is accurate, we •may grant his petition to withdraw from the case. See: Commonwealth v. McClendon, supra; Commonwealth v. Wilson, 396 Pa.Super. 296, 299, 578 A.2d 523, 525 (1990).

In reviewing a challenge to the sufficiency of the evidence, we must determine “whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense [ ] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). “Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.” Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

“A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence.” Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984). The decision whether or not to grant a new trial on this basis rests within the sound discretion of the trial court. Commonwealth v. Akers, 392 Pa.Super. 170, 182, 572 A.2d 746, 752 (1990). “A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155-1156 (1986). The role of an appellate court in reviewing the weight of the evidence is very limited. Commonwealth v. Purcell, 403 Pa.Super. 342, 348, 589 A.2d 217, 220 (1991). “The purpose of that review is to determine whether the trial court abused its discretion and not to substitute [the reviewing] Court’s judgment for that of the trial court.” Commonwealth v. Murray, 408 Pa.Super. 435, 440, 597 A.2d 111, 114 (1991) (en banc).

Instantly, appellant was convicted of aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(4), which provides that “[a] person is guilty of aggravated assault if he attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.” Where the defendant is charged with aggravated assault based upon his attempt to injure another person, the Commonwealth is required to prove that he acted with a specific intent to cause such injury. Commonwealth v. Everett, 408 Pa.Super. 166, 169, 596 A.2d 244, 245 (1991). “ ‘A person acts intentionally with respect to a material element of an offense when ... it is his conscious object to engage in conduct of that nature or to cause such a result.’ ” Id., quoting 18 Pa.C,S. § 302(b)(l)(i). “Criminal intent may be proved by direct or circumstantial evidence.” Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887, 889 (1978).

The evidence at trial discloses that, on November 9,1991, at or about 1:50 a.m., appellant and Randall Coleman were both patrons at “Hut’s Place,” a tavern located in Erie, Pennsylvania. The two men were known to each other and had been involved in a fight about one year earlier. According to Coleman, appellant approached him in the bar and said that he (appellant) did not like him and that “one day its going to be me and you one-on-one.” In response, Coleman told appellant that he was ready to fight. Appellant then pulled out a gun and pointed it at Coleman’s chest. Thereafter, appellant walked up to Coleman and placed the gun to Coleman’s head, stating that he was going to blow Coleman’s “mother fucking head off.” While pointing the gun at Coleman’s head, appellant’s finger was on the trigger and the gun was loaded. Believing that he was about to be shot, Coleman grabbed appellant’s wrist and attempted to wrestle the gun from him. During the struggle, Coleman was able to push appellant into the bar, where the owner of the tavern took the gun from appellant’s hand. This version of events was substantially corroborated by the testimony of other persons who were in the tavern at the time of the incident.

Appellant testified on his own behalf and said that after their previous fight, Coleman had threatened that he was going to get appellant sooner or later. He said that Coleman had approached him in “Hut’s Place” and had said “come on, lets get it on now.” In response, appellant backed up, and because he felt threatened by Coleman, pulled out his gun to keep Coleman from advancing further. According to appellant, he held the gun to his side and did not point it at anybody. Coleman, however, continued to approach, grabbed appellant by the wrist and pushed him into the bar. The gun was then taken from appellant by the owner of the tavern. Appellant denied having any intent to injure Coleman with the gun.

In the brief filed by appointed counsel, it is asserted that the evidence was insufficient to sustain appellant’s conviction for aggravated assault because appellant had intended only to scare the victim in order to ward off being attacked. Appellant, however, has filed a pro se brief in which he argues more specifically that his act of pointing a gun at the victim was insufficient as a matter of law to support his conviction under 18 Pa.C.S. § 2702(a)(4). According to appellant, the Commonwealth failed to prove that he acted with the specific intent to cause bodily injury to the victim with a deadly weapon. In making this argument appellant relies upon the decision in Commonwealth v. Savage, 275 Pa.Super. 96, 418 A.2d 629 (1980), where the Superior Court held that the trial court had erred when it instructed the jury that the defendant’s act of pointing a gun at the victim could constitute an aggravated assault. In so holding, the Superior Court reasoned as follows:

The Crime[s] Code defines aggravated assault as follows:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
(2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to a police officer making or attempting to make a lawful arrest;
(3) attempts to cause or intentionally or knowingly causes bodily injury to a police officer making or attempting to make a lawful arrest; or
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.
18 Pa.C.S. § 2702.
The Code defines simple assault as follows:
(a) Offense defined. — A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a deadly weapon; or
(3) attempts by physical menace to put another in fear of imminent serious bodily injury.
18 Pa.C.S. § 2701.
"[Pjointing a gun at Mr. Gould ... in ... a threat to cause serious bodily injury”, could constitute a simple assault as an “attempt[ ] by physical menace to put another in fear of imminent serious bodily injury.” 18 Pa.C.S. § 2701(a)(3). See Commonwealth v. Trowbridge, 261 Pa.Super. 109, 114, 395 A.2d 1337, 1340 n. 8 (1978). It could not, however, constitute an aggravated assault. Cf Common wealth v. Bond, 261 Pa.Super. 311, 315, 396 A.2d 414, 416 n. 2 (1978) (during struggle with victim, defendant’s gun clicked several times while it was pointed at victim).

Commonwealth v. Savage, supra at 102-103, 418 A.2d at 632 (footnote omitted).

Pursuant to the rationale in Savage, it would appear that the mere act of pointing a gun at another person is not sufficient to support a conviction for aggravated assault. Something more is required in order to establish a specific intent to cause injury to the person at whom the gun is being pointed. Thus, in Commonwealth v. Chance, 312 Pa.Super. 435, 442-443, 458 A.2d 1371, 1374-1375 (1983), the Court held that a defendant’s act of pointing a gun at his victim, together with evidence that the victim heard the gun click a couple of times while he was struggling with the defendant, was sufficient to sustain a conviction under 18 Pa.C.S. § 2702(a)(4). Compare: Commonwealth v. Mayo, 272 Pa.Super. 115, 126-129, 414 A.2d 696, 702-703 (1979) (defendant’s act of threatening victim and lightly scratching her chest with a knife was not sufficient to establish either that bodily injury had been inflicted or that defendant had attempted to cause bodily injury with the knife, as defendant had failed to pursue an obvious opportunity to inflict considerable pain or injury to victim).

After careful review, and viewing the evidence in the light most favorable to the Commonwealth, we are satisfied that there was sufficient evidence to sustain the jury’s finding that appellant was guilty of aggravated assault in this case. Here, the evidence established more than the pointing of a gun at the victim. The testimony was that after Coleman and appellant had exchanged words, appellant pulled out a gun, pointed it at the victim’s chest, moved closer to the victim and placed the gun to his head. While holding the gun to the victim’s head, appellant said that he was going to blow his head off. It was at this point that the victim grabbed appellant’s wrist and began to struggle in an effort to prevent being shot. Under these circumstances, the jury could infer from appellant’s conduct and his words that appellant had intended to shoot the victim and had been prevented from doing so only because the victim was able to grab appellant’s wrist and force the gun away from his head. This evidence, we hold, was sufficient for the jury to infer that appellant attempted to cause bodily injury to the victim with a deadly weapon in violation of 18 Pa.C.S. § 2702(a)(4).

Having concluded that the evidence was sufficient to sustain appellant’s conviction for aggravated assault, we find no basis for concluding that the trial court abused its discretion when it refused to award a new trial on grounds that the verdict had been contrary to the weight of the evidence. Although appellant testified that he had had no intent to shoot the victim, it was solely for the jury to determine the credibility of the testimony. The jury, it seems clear, chose to credit the victim’s version of events in preference to the version recited by appellant. “Where the evidence is conflicting, the credibility of the witnesses is solely for the jury, and if its finding is supported by the record, the trial court’s denial of a motion for a new trial will not be disturbed.” Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981).

Finally, there is no merit in appellant’s contention that the trial court abused its discretion by failing to state adequate reasons for imposing a sentence in the aggravated range of the sentencing guidelines. “Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of that discretion.” Commonwealth v. Anderson, 381 Pa.Super. 1, 16, 552 A.2d 1064, 1072 (1988). When imposing sentence, a court is required to consider “the particular circumstances of the offense and the character of the defendant.” Commonwealth v. Frazier, 347 Pa.Super. 64, 67, 500 A.2d 158, 159 (1985). “It must be demonstrated that the court considered the statutory factors enunciated for determination of sentencing alternatives and the sentencing guidelines.” Commonwealth v. Hainsey, 379 Pa.Super. 376, 382, 550 A.2d 207, 209 (1988). Thus, the sentencing court is required to state its reasons for the sentence on the record, so that a reviewing court can determine “whether the sentence imposed was based upon accurate, sufficient and proper information.” Commonwealth v. Riggins, 474 Pa. 115, 131, 377 A.2d 140, 148 (1977). Where the sentencing judge had the benefit of a pre-sentence report, however, it will be presumed that he “was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18 (1988). “Having been fully informed by the presentence report, the sentencing court’s discretion should not be disturbed.” Id. at 102, 546 A.2d at 18.

Instantly, a review of the record of sentencing discloses that the trial court considered and relied upon a presentence report. The court observed on the record that an aggravated sentence was warranted because of appellant’s extensive criminal record, particularly in regard to his propensity to engage in assaultive behavior involving the use of weapons. The record further reveals that the court was aware of and considered the various statutory factors relative to sentencing, as well as the sentencing guidelines. Under these circumstances, we can perceive no abuse of discretion in the imposition of appellant’s sentence.

Although our review of the record has disclosed no basis upon which to disturb the judgment of sentence, we are unable to agree with appointed counsel’s conclusion that the appeal is frivolous. On the contrary, this appeal presents a substantial issue regarding the sufficiency of the evidence to sustain a conviction for aggravated assault. Therefore, we will not act perfunctorily to allow counsel to withdraw his appearance on behalf of the appellant.

The judgment of sentence is affirmed. The petition of appellate counsel for leave to withdraw his appearance on appellant’s behalf is denied.

      . Sanders was found not guilty of making a terroristic threat and possession of an instrument of crime.

      . The conviction for recklessly endangering another person was deemed to merge with aggravated assault for purposes of sentencing.


author: JOHNSON, Judge:

text:
    627 A.2d 188
    The CONFERENCE OF AFRICAN UNION FIRST COLORED METHODIST PROTESTANT CHURCH v. Willie E. SHELL and St. Paul’s African Union First Colored Methodist Protestant Church of Lancaster, a/k/a St. Paul A.U.M.P. Church, Appellant.
    Superior Court of Pennsylvania.
    Argued April 15, 1993.
    Filed June 22, 1993.
    Samuel M. Mecum, Lancaster, for appellant.
    Christina L. Hausner, Lancaster, for appellees.
    Before CAVANAUGH, BECK and JOHNSON, JJ.
   JOHNSON, Judge:

In this action for declaratory and injunctive relief, the Conference of African Union First Colored Methodist Protestant Church (the Conference) seeks to establish its ownership rights to certain church property in the City of Lancaster held by St. Paul’s African Union First Colored Methodist Protestant Church of Lancaster, a local congregation. The Conference is a Mid-Atlantic States region religious denomination which has been in existence since 1813. St. Paul’s is a nonprofit corporation founded in 1977 and is affiliated with the Conference.

Following a final hearing, the Chancellor issued an Adjudication and Decree Nisi which imposed a constructive trust on the church real estate, directed St. Paul’s to convey the real estate to the Conference, and enjoined St. Paul’s from use of the real estate without the Conference’s consent. A Final Decree was entered and St. Paul’s has appealed.

We have previously held that jurisdiction over an appeal in an action involving a corporation not-for-profit lies properly with the Commonwealth Court. Orthodox Church in America v. Mikilak, 344 Pa.Super. 182, 496 A.2d 403 (1985) transferred to 99 Pa.Cmwlth.Ct. 264, 513 A.2d 541 (1986) sub nom. Mikilak v. Orthodox Church in America, appeal denied, 515 Pa. 602, 528 A.2d 958 (1987). See 42 Pa.C.S. § 762(a)(5)(ii). For other cases involving disputes over title to church property, see, e.g., Orthodox Church of America v. Pavuk, 114 Pa.Cmwlth.Ct. 176, 538 A.2d 632 (1988), allocatur denied, 519 Pa. 669, 548 A.2d 258 (1988); Presbytery of Beaver-Butler of the United Presbyterian Church in the United States of America v. Middlesex Presbyterian Church, 80 Pa.Cmwlth.Ct. 211, 471 A.2d 1271 (1984), reversed, 507 Pa. 255, 489 A.2d 1317 (1985), cert. denied, 474 U.S. 887, 106 S.Ct. 198, 88 L.Ed.2d 167 (1985).

Rather than exercise our discretion to decide the questions in this case, we transfer the matter to the court vested with jurisdiction to hear the appeal and which has established experience in this area of the law, the Commonwealth Court.

In accordance with Pa.R.A.P. 751 and pursuant to 42 Pa. C.S. § 5103(a), this appeal is hereby TRANSFERRED TO the Commonwealth Court. Jurisdiction is relinquished.


text:
    627 A.2d 190
    Paul R. ROSEN, Esquire, Appellant, v. AMERICAN BANK OF ROLLA and Charles Golin, Esquire, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1993.
    Filed June 28, 1993.

      Ann Miller, Philadelphia, for appellant.
    Catherine N. Jasons, Philadelphia, for American Bank, appellee.
    William B. Hildebrand, Philadelphia, for Golin, appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a cause of action for the malicious abuse or wrongful use of process can be maintained by a non-party witness who has been subpoenaed to appear and give testimony in aid of execution in a legitimate and proper underlying action. The trial court held that no such action could be maintained and sustained preliminary objections in the nature of a demurrer to the complaint. The plaintiff appealed. For the reasons hereafter stated, we affirm.

American Bank of Rolla, a Missouri bank, recovered a judgment against Robert Martin for one hundred thirty-three thousand, three hundred forty-seven and 57/100 ($133,347.57) dollars in the Circuit Court for St. Charles, Missouri. On July 18, 1985, the judgment was transferred to Pennsylvania and recorded in the Court of Common Pleas of Lancaster County. Martin’s depositions in aid of execution were taken on August 26,1985. At that time, Martin refused to disclose the terms of a settlement received in an action which he had brought against Commercial Credit Business Loans, Inc. (CCBL). Following several additional unsuccessful attempts to obtain this information from Martin and upon being referred by Martin to his lawyer, American Bank, by its Pennsylvania counsel, gave notice of an intent to take the depositions of Paul R. Rosen, Esquire, the lawyer who had represented Martin in his action against CCBL. The bank’s counsel mailed to Rosen a subpoena to appear for depositions on April 17, 1986. Rosen responded in writing that the subpoena had been improperly served, that the information regarding the CCBL settlement was privileged, and that he would be engaged in a trial in San Antonio, Texas on the date of the scheduled depositions. Thereafter, an alternate date was scheduled for depositions, and Rosen was served personally with a Pennsylvania subpoena while he was in trial in Texas. The averments of the complaint do not disclose whether the subpoena was ever quashed or set aside.

Rosen then filed in Philadelphia a complaint against American Bank and its Lancaster County lawyer, Charles Golin, Esquire. The action was subsequently transferred to Laneaster County, where several amended complaints were filed and where the court ultimately sustained preliminary objections in the nature of a demurrer to the count alleging a cause of action for malicious use of process.

Wrongful use of civil proceedings “is a tort which arises when a party institutes a lawsuit with a malicious motive and lacking probable cause.” Shaffer v. Stewart, 326 Pa.Super. 135, 138, 473 A.2d 1017, 1019 (1984). See: Dietrich Industries, Inc. v. Abrams, 309 Pa.Super. 202, 206-207, 455 A.2d 119, 122 (1982). In this Commonwealth, the tort has been codified at 42 Pa.C.S. § 8351 as follows:

§ 8351. Wrongful use of civil proceedings
(a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.
(b) Arrest or seizure of person or property not required. — The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this subchapter.

The statutory definition of the tort is now in agreement with the Restatement (Second) of Torts, § 674. Robinson v. Robinson, 362 Pa.Super. 568, 574, 525 A.2d 367, 370 (1987); Shaffer v. Stewart, supra 326 Pa.Super. at 140, 473 A.2d at 1020. “While some cases have confounded the action for abuse of process with the action for [wrongful use of civil proceedings], the two are essentially different and independent.” 1 Am.Jur.2d Abuse of Process, § 2.

Decisions in this state and in other jurisdictions have drawn a distinction between actions for abuse of legal process and those for malicious prosecution, which, when founded on civil prosecutions, are usually described as malicious use of civil process. The gist of an action for abuse of process is the improper use of process after it has been issued, that is, a perversion of it. Mayer v. Walter, 64 Pa. 283; Annotation, 80 A.L.R. 581. * * * Malicious use of civil process has to do with the wrongful initiation of such process, while abuse of civil process is concerned with a perversion of a process after it is issued. * * *

Dumont Television and Radio Corp. v. Franklin Electric Co. of Philadelphia, 397 Pa. 274, 278-279, 154 A.2d 585, 587 (1959), quoting Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 348-349, 32 A.2d 413, 415 (1943).

The tort of “abuse of process” is defined as the use of legal process against another “primarily to accomplish a purpose for which it is not designed.” Restatement (Second) of Torts, § 682.

The gravamen of the misconduct for which the liability stated in this Section is imposed is not the wrongful procurement of legal process or the wrongful initiation of criminal or civil proceedings; it is the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to accomplish. Therefore, it is immaterial that the process was properly issued, that it was obtained in the course of proceedings that were brought with probable cause and for a proper purpose, or even that the proceedings terminated in favor of the person instituting or initiating them. The subsequent misuse of the process, though properly obtained, constitutes the misconduct for which the liability is imposed under the rule stated in this Section.

Id., comment a. The word “process” as used in the tort of abuse of process “has been interpreted broadly, and encompasses the entire range of procedures incident to the litigation process.” Nienstedt v. Wetzel, 133 Ariz. 348, 352, 651 P.2d 876, 880, 33 A.L.R.4th 635, 641 (1982). Thus, it is broad enough to include discovery proceedings, the noticing of depositions and the issuing of subpoenas. See: Nienstedt v. Wetzel, supra; Moity v. Richard, 476 So.2d 573 (La.App.3d Cir.1985). To establish a claim for abuse of process it must be shown that the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the plaintiff. Nienstedt v. Wetzel, supra at 353, 651 P.2d at 881, 33 A.L.R.4th at 642.

“The significance of [the word ‘primarily’] is that there is no action for abuse of process When the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant....
“... The usual case of abuse of process is one of some form of extortion, using the process to put pressure upon the other to compel him to pay a different debt or to take some other action or refrain from it.”

Restatement (Second) of Torts, § 682, comment b.

The abuse of a subpoena may subject the abuser to liability for abuse of process. See: Restatement (Second) of Torts, § 682, Illustration 3. The service of a subpoena upon a witness, however, does not subject the server to an action by the witness for the wrongful use of civil proceedings under 42 Pa.C.S. § 8351. The issuance or service of a subpoena does not constitute the initiation or commencement of a civil proceeding. The tort of wrongful use of civil proceedings entails the initiation or continuation of an action; it does not refer to the service of a subpoena during the course of a civil proceeding. This is inherent in the term “civil proceeding” and in the requirement that the “proceeding” be terminated in favor of the person against whom the proceedings were brought.

The essence of the tort of wrongful use of civil proceedings is the institution of a civil action for a malicious purpose and without probable cause. Weiss v. Equibank, 313 Pa.Super. 446, 456, 460 A.2d 271, 276 (1983), quoting Baird v. Aluminum Seal Co., 250 F.2d 595, 600 (3rd Cir.1957). Thus, it has been held that the filing of preliminary objections will not support an action for wrongful use of a civil proceeding. See: Pawlowski v. Smorto, 403 Pa.Super. 71, 588 A.2d 36 (1991). It has also been held that a request for admissions will not support an action for wrongful use of a civil proceeding. Twyford v. Twyford, 63 Cal.App.3d 916, 134 Cal.Rptr. 145 (1976). Finally, it has been held that a frivolous appeal will not support an action for wrongful use of a civil proceeding. Walsavage v. Nationwide Ins. Co., 633 F.Supp. 378 (E.D.Pa.1986), affirmed, 806 F.2d 465 (3rd Cir.1986). In all of these cases there was not a wrongful initiation or continuation of a separate civil action against the plaintiff.

It has also been held that an action under 42 Pa.C.S. § 8351 cannot be maintained by one who was not a party to the underlying action. See: Lessard v. Jersey Shore State Bank, 702 F.Supp. 96, 98 (M.D.Pa.1988) (“The plaintiff herein, was not a party to the underlying state court action. Thus, she lacks the requisite standing and cannot set forth a cause of action under 42 Pa.C.S.A. § 8351.”). Cf. Mintz v. Bur, 6 Pa.D. & C.3d 779, 786 (Montg.1977), aff'd per curiam, 257 Pa.Super. 641, 390 A.2d 311 (1978) (“The language of section 674 of the Restatement Torts 2d, indicates that a cause of action for wrongful use of civil process will not arise until civil proceedings have been brought against a party. ... Mere adversity of interest is clearly not sufficient to meet the requirements of the Restatement.”). See also: Gosling v. Ace Hardware Corp., 616 F.Supp. 1195, 1197 (D.C.Ill.1985).

It follows, therefore, that Rosen cannot maintain an action for wrongful use of a civil proceeding as defined by 42 Pa.C.S. § 8351. No civil proceeding was procured, instituted or continued against Rosen. The issuance of a subpoena to him in an action against a former client did not constitute the commencement of a civil action against him, as contemplated by the statute. Because there was no action against him, moreover, it could not have been decided in his favor.

A review of the averments of the amended complaint demonstrates also that Rosen has failed to allege a cause of action against the defendants for abuse of process. American Bank held a valid judgment against Robert Martin. The bank, represented by Charles Golin, Esquire, deposed Martin in aid of execution and sought to ascertain the terms of a settlement which he had reached in an action which he had earlier brought against CCBL. Martin declined to reveal the terms of the settlement and referred his interrogators to Rosen, who had been his lawyer in the CCBL action. In an effort to depose Rosen, who had declined to appear voluntarily, Golin and his client sought to subpoena Rosen. Whether the subpoena was properly served is immaterial to a cause of action for abuse of process. What is important and what appears clearly from Rosen’s amended complaint is that the primary purpose of the discovery proceedings being conducted by the bank and its lawyer was in aid of execution against Martin. Rosen admittedly had relevant information. Therefore, he could properly be deposed. See: Pa.R.C.P. 3117. When Golin and American Bank sought to compel Rosen’s testimony by serving him with a subpoena, they did not seek to pervert the process; nor did they pervert it in fact. They were acting precisely as the law permitted them to act and primarily, if not solely, for a purpose for which the process existed. Rosen, a lawyer himself, did not acquire a cause of action for abuse of process because he was served with a subpoena by persons entitled to inquire in aid of execution regarding relevant information which Rosen had in his possession. To permit a cause of action for abuse of process for service of a subpoena upon a witness to obtain relevant information possessed by the witness would wreak havoc with the judicial system.

Affirmed.

CAVANAUGH, J., concurs in the result.

      . The plaintiff voluntarily withdrew a separate count for the intentional infliction of emotional distress, and the trial court’s order, therefore, had the final effect of dismissing the complaint.


author: DEL SOLE, Judge.

text:
    627 A.2d 194
    Kenneth M. LEININGER and Cynthia L. Leininger, His Wife and William Pflugh and Elizabeth Pflugh, His Wife, Appellants, v. Louis TRAPIZONA and Irene M. Trapizona, His Wife, Richard T. Trapizona and Louis John Trapizona, et al. Township of Aleppo, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1993.
    Filed July 2, 1993.

      Robert J. Fall, Pittsburgh, for appellants.
    John M. Studeny, Pittsburgh, for appellee Trapizona.
    Vincent J. Restauri, Jr., Sewickley, for appellee Aleppo.
    Before DEL SOLE, FORD ELLIOTT and CERCONE, JJ.
   DEL SOLE, Judge.

This is an appeal from the order of the Court of Common Pleas of Allegheny County denying Appellants’ request to enjoin Appellees and the local township from construction and use of a road which Appellants alleged had reverted back to them by operation of law. Because we find that the instant appeal falls within the exclusive jurisdiction of the Commonwealth Court we hereby transfer this appeal to that court for disposition of the issues presented.

Appellants, Kenneth and Cynthia Leininger, and William and Elizabeth Pflugh, are the owners of several lots in a residential subdivision known as the McCoy Plan of Lots No. 3, located in Aleppo Township. The Pflughs acquired two lots (Numbers 11 and 12) in the plan in 1973. The Leiningers purchased their home at Lot Number 10 in 1986. An unnamed fifty foot road, not included in the property descriptions to Appellants’ deeds, ran between Lot Number 10 to the north and Lots 11 and 12 to the south.

In March, 1990, Appellees Louis and Michael Trapizona acquired land abutting the west side of Appellants’ lots in the McCoy Plan No. 3; they conveyed portions of this property to Appellee Richard Trapizona in October, 1990.

In April, 1990, Appellants were contacted by Chief of Police Richard Trapizona and Nicholas Veshio, the township supervisor of public works. Trapizona and Veshio informed Appellants that the road between their property was a public right of way, and that the Trapizonas intended to open it to gain access to the Trapizona property. Both Trapizona and Veshio were of the opinion that the road was a public right of way, and that therefore Appellants’ consent was unnecessary. Appellants did express concern that the construction of the road meet township specifications; they were assured that such specifications would be met.

From the spring of 1990 through late February, 1991, the Trapizonas engaged in construction of the road. Appellants did not voice any objections to the construction until February, when they expressed their objection to the manner in which the road was being constructed; i.e., whether the height of the road was too great. That same month, Appellants learned from consultation with legal counsel that the representations by Chief Trapizona and Mr. Veshio were erroneous. By letter dated March 1, 1991, Appellants voiced their protest to the Trapizonas and the township regarding construction of the road.

After unsuccessful attempts among the parties to resolve the dispute, Appellants commenced an action in equity on March 18, 1991, seeking to enjoin the Trapizonas from constructing and using the road. In their complaint, Appellants also included a count in trespass, alleging monetary damages for diminished value in their parcels of real estate as a result of the Trapizona’s construction work. On April 2, 1991, Appellants filed a petition seeking to preliminarily enjoin the Trapizonas from further construction and use of the road. By consent order of that same date, the Trapizonas were enjoined from further use of the road pending conciliation. Hearings for the injunction were held during May, 1991, and after further pleadings, discovery, and a conciliation, the case was assigned to a chancellor.

Following the December 18, 1991 hearing before the chancellor, a decree nisi was issued on January 21, 1992, denying Appellants’ request for injunctive relief and enjoining them from interfering with the construction and use of the road. The court also found in favor of the Trapizonas on Appellants’ claim for damages to their property. On January 31, 1992, Appellants filed a motion for post-trial relief, which was denied by order dated August 27, 1992. This appeal followed.

Appellants argue that since more than twenty-one years have elapsed since the road was opened for public use, any public right of way has been extinguished, pursuant to 53 P.S. § 46724, and title to the road has reverted to them. They also claim that the lower court’s finding that they consented to the opening of the road is contrary to law and against the weight of the evidence. Finally, Appellants allege that equity requires that the Trapizonas be permanently enjoined from use of the road and be required to restored the disturbed areas to their pre-construction state.

Appellants have also joined the Township of Aleppo in their suit, alleging that they were told by two Township employees that the road was a public right of way and that therefore, the Trapizonas had the right to open the road and develop it. The Township has responded that Appellants were not entitled to rely on the opinion of the Township employees without conducting an independent investigation of the facts, particularly when one of the employees was an interested party (Chief Trapizona) and neither of the employees were reliable sources regarding real estate law.

Although neither party has raised the issue, it is well settled that this court may sua sponte raise a question as to our jurisdiction in a particular case. See Karpe v. Borough of Stroudsburg, 290 Pa.Super. 559, 434 A.2d 1292 (1981); 42 Pa.C.S. § 705. By statute, this court is granted appellate jurisdiction from final orders of the courts of common pleas, except when jurisdiction is vested in the Supreme Court or the Commonwealth Court. 42 Pa.C.S. § 742. The appellate jurisdiction of the Commonwealth Court from final orders of the common pleas courts is limited by statute to certain defined classes of subject matter. 42 Pa.C.S. § 762. One such defined area is set forth in 42 Pa.C.S. § 762(a)(4)(i)(A):

(a) General rule. — Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:
(4) Local government civil and criminal matters.
(i) All actions or proceedings arising under any municipality, institution district, public school, planning or zoning code or under which a municipality or other political subdivision or municipality authority may be formed or incorporated or where is drawn in question the application, interpretation or enforcement of any:
(A) statute regulating the affairs of political subdivisions, municipality and other local authorities or other public corporations or of the officers, employees or agents thereof, acting in their official capacity; ...

In the instant case, Appellants have alleged that 53 P.S. § 46724 governs their entitlement to relief. The statute provides:

Effect of failure to open street after its laying out
... Whenever any street shall have been laid out and shall not have been opened to, or used by the public for a period of twenty-one years, such street shall not thereafter be opened without the consent of at least fifty-one percent of the number of owners of the abutting real estate and without the consent of the owners of at least fifty-one percent of the property abutting such street, based on a front foot basis.

The trial court has indicated, however, that the instant matter is instead governed by 36 P.S. § 1961, which provides:

Unopened ways or streets on town plots
Any street, lane or alley, laid out by any person or persons in any village or town plot or plan of lots, on lands owned by such person or persons in case the same has not been opened to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be, laid out.

We agree that 36 P.S. § 1961 is controlling in the instant matter, and hold that because the instant matter involves the interpretation of statute pertaining to public roads in general, the subject matter jurisdiction of this appeal lies within the exclusive jurisdiction of the Commonwealth Court. Accordingly, we transfer this appeal and the accompanying record to the Commonwealth Court.

Appeal transferred.


author: BECK, Judge.

text:
    627 A.2d 732
    COMMONWEALTH of Pennsylvania v. Stephen FISHER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 6, 1993.
    Filed May 17, 1993.
    Reargument Denied July 30, 1993.
    Rose A. McGowan, Moscow, for appellant.
    John J. Notarianni, Asst. Dist. Atty., Scranton, for Com., appellee.
    Before CIRILLO, BECK and KELLY, JJ.
   BECK, Judge.

The issue is whether a defendant can be found guilty of the crime of solicitation to deliver drugs where the facts show he could not have been found guilty of the underlying crimes of delivery of drugs or possession with the intent to deliver drugs. Because we find that the legislature specifically prohibits such a charge, we vacate appellant’s judgment of sentence.

Agents from the Scranton/Lackawanna County Drug Task Force confiscated a beeper from a local drug dealer. With the assistance of the dealer’s driver (the informant), the agents set up a “reverse sting operation.” That evening, they rented several adjoining rooms at a hotel and placed a scale and bags of a white powder substance in plain view on the table in one of the rooms. When a call was received through the beeper, the informant would contact the caller, who usually would be calling in order to purchase drugs. The informant would then instruct the caller to come to the hotel room. Apparently, the agents received over eighty (80) calls that evening and arranged numerous transactions under this system. The agents, working with the district attorney’s office, recorded the calls made by the informant and also recorded the conversations that took place in the hotel room between the informant and the buyers. Once a buyer requested drugs and showed that he had money to make the purchase, agents would appear from an adjoining room and make an arrest.

Appellant was one of the persons who placed a call to the beeper that night. During his telephone conversation with the informant, appellant requested an “eight iron” and was told to come to the hotel room. Upon his arrival, appellant asked the informant for an “eight ball.” Appellant was then asked to show his money and upon doing so was arrested. At trial, an agent gave expert testimony that both terms used by appellant were slang for an eighth of an ounce of cocaine, a common measure of cocaine packaged to be sold to an individual on the street.

The Commonwealth charged appellant with criminal solicitation to deliver a controlled substance, a felony punishable by a maximum of ten years imprisonment and a $100,000 fíne. See 18 Pa.C.S.A. §§ 902, 905(a); 35 Pa.S.A. § 780-113(a)(30) and (f)(l.l). Appellant petitioned the trial court to amend the charge against him to attempted possession of a controlled substance. The court denied appellant’s request and a jury trial followed. Appellant was found guilty of solicitation to deliver a controlled substance and was sentenced to 18 to 36 months in prison.

Appellant’s single issue on appeal is the propriety of the charge. He claims that he should not have been charged with solicitation to deliver because even if the crime solicited, i.e., the purchase of cocaine, had been accomplished, he would not have been charged with delivery, but merely possession because of the small quantity of drugs involved. The Commonwealth counters by stating that appellant’s conduct falls within the plain language of the solicitation statute; therefore, the charge and conviction are proper. The trial court agreed with the Commonwealth and denied appellant’s motions in arrest of judgment and for a new trial.

Our solicitation statute provides:

A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute a crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.

18 Pa.C.S.A. § 902(a).

Appellant’s act clearly falls within the statute’s provisions in that appellant requested another person (the informant) to engage in conduct (sell drugs) which would constitute a crime. However, this limited analysis ignores an additional statutory provision which plainly addresses the very circumstances of this case:

It is a defense to a charge of solicitation or conspiracy to commit a crime that if the criminal object were achieved the actor would not be guilty of a crime under the law defining the offense or as an accomplice under section 306(e) of this title (relating to status of actor) or section 306(f)(1) or (2) of this title (relating to exceptions)

18 Pa.C.S.A. § 904(b).

It is clear that in this case even “if the criminal object were achieved the actor [appellant] would not be guilty of a crime under the law defining the offense[.]” Appellant’s conduct would not support the charge of delivery, nor would it support an accomplice charge. Section 306 sets forth the law of accomplice liability and provides, inter alia, that a person cannot be convicted as an accomplice to a crime if “the offense is so defined that his conduct is inevitably incident to its commission.” 18 Pa.C.S.A. § 306(f)(2).

We are certain that, had the drug transaction in the instant case been accomplished, appellant would not have been guilty of the crime of delivery of a controlled substance, either as a principal or an accomplice. The small quantity of appellant’s buy, namely one-eighth of an ounce would not support a charge of delivery or possession with intent to deliver. See Commonwealth v. Gill, 490 Pa. 1, 415 A.2d 2, 4 (1980) (small amount of drugs consistent with personal use results in charge of possession, not distribution). Also, appellant as the buyer of drugs is “inevitably incident” to the delivery of drugs and his conduct cannot be considered that of an accomplice. Once the buyer purchases a small quantity of drugs, two crimes have been committed: the seller has violated 35 Pa.S.A. § 780-113(a)(30), the felony of delivery of a controlled substance, and the buyer has violated 35 Pa.S.A. § 780-113(a)(16), the misdemeanor of possession of a controlled substance.

The cases cited by the Commonwealth are not applicable to these facts. Commonwealth v. Wilson, 296 Pa.Super. 264, 442 A.2d 760, appeal granted, 498 Pa. 529, 447 A.2d 1381 (1982), concerned a sting operation wherein police officers acted as “johns” and were solicited by prostitutes who offered to perform various sexual acts for specific sums of money. There, appellants claimed that because the officers themselves could not have been convicted of the underlying crime (prostitution), appellants could not be charged with solicitation to commit the crime. We disagreed and held that a conviction under the solicitation statute did not require “that the one being solicited be criminally chargeable for the underlying crime.” Id. 442 A.2d at 762. In Commonwealth v. Cauto, 369 Pa.Super. 381, 535 A.2d 602 (1987), appeal denied, 521 Pa. 601, 555 A.2d 112 (1988), the appellant was convicted of solicitation to commit involuntary deviate sexual intercourse (IDSI) with three minor boys. He argued that the charge could not be sustained because solicitation requires an attempt to cause another to commit a crime. Because the boys would have been victims of the crime, instead of actually committing the crime, appellant argued that he could not be charged with solicitation. Relying on our holding in Wilson that the person solicited does not have to be capable of committing the crime, we rejected appellant’s challenge and upheld the conviction.

The appellants in Wilson would have been guilty of prostitution if the crime had been accomplished; similarly, the appellant in Cauto would have been guilty of IDSI had the boys responded to his advances. Unlike in the above cited cases, appellant could not have been found guilty of delivery or possession with intent to deliver even if the crime had been completed. In Wilson and Cauto the focus was on the solicitee; here the focus is not on the object of the solicitation but on the solicitor himself. Section 904 provides appellant with a complete defense to the charge; therefore, it was error for appellant to be charged with solicitation to deliver a controlled substance.

We are confident that the legislature intended this result in enacting §§ 902 and 904. While there is little legislative history regarding these statutes, the language was taken verbatim from the Model Penal Code. In their comments to the Code, the drafters discussed the definition of “crimes as to which more than one person is inevitably incident” and included therein “unlawful intercourse, bribery, or unlawful sales.” See Model Penal Code § 5.04 note on immunity as an accomplice (TentJDraft No. 10 1960). The drafters further stated: “[The section] goes no further than to provide that a person who may not be convicted of the substantive offense under the complicity provision may not be convicted of the inchoate crime under the conspiracy and solicitation sections.” Id. See also 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 6.1 at 14 (1986) (“For example, if A solicited B to commit the crime with A, and the nature of the crime is such that A’s participation is inevitably incident to its commission, then it may be concluded that the legislature — by defining the offense solely in terms of one of the two necessary parties’ participation — did not intend to impose liability on a person in A’s position.”).

Because appellant could not be convicted of delivery of a controlled substance or possession with intent to deliver a controlled substance, he should not have been charged with solicitation to commit that offense. Section 904 explicitly prohibits such a charge.

Judgment of sentence vacated. Jurisdiction relinquished.

      . Our holdings in Wilson and Cauto are further supported by § 904(a), which provides that it is immaterial to the liability of the person who solicits that the person solicited cannot commit the crime.

      . The solicitation statute was part of the wholesale enactment of the Crimes Code in 1972. Commentary by the legislators was limited and did not address each particular statutory provision. Solicitation was not discussed.


author: CIRILLO, Judge:

text:
    627 A.2d 735
    COMMONWEALTH of Pennsylvania v. Jeffrey WAGAMAN, David Fazio, Jamie Luby, Angel Clark, Sherry Stuffle and Jerry Ingram, Appellants.
    Superior Court of Pennsylvania.
    Argued March 11, 1993.
    Filed May 21, 1993.
    Reargument Denied July 26, 1993.

      Richard M. Gutman, Carlisle, for appellants.
    H. Stanley Rebert, Dist. Atty., York, for Com., appellee.
    Before CIRILLO, POPOVICH and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal by six young people from convictions for disorderly conduct. We reverse.

The charges arose in the course of two days of confrontation in Hanover between an interracial group of young people and a white crowd. A summer of tension culminated in two nights of shouted threats and epithets, and bottle and rock throwing. On the second night of the confrontation, a group of the young people was gathered on the roof of a building. The building contained an apartment the young people used as a meeting place or crash pad. Outside the building a crowd of several hundred gathered, including several motorcyclists who the night before had threatened the youths. Each group shouted and threw objects at the other. After attempts to clear the street outside the apartment failed, the Hanover Borough police, police from outlying townships and two members of the Pennsylvania State Police climbed a fire escape on to the roof of the apartment and arrested all those they found there. No one in the crowd on the street was arrested. The six who here appeal their convictions were among a group of 11 persons arrested on the roof. Each of the six was charged with disorderly conduct and convicted. Fines of $100 plus costs were imposed. Post-verdict motions were filed and denied; this timely appeal followed.

The six defendants ask whether presence at the scene of a crime, without more, is sufficient to convict them of disorderly conduct.

In reviewing a challenge to the sufficiency of the evidence, this court must ask whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offense beyond a reasonable doubt. Commonwealth v. Thomas, 527 Pa. 511, 513-14, 594 A.2d 300, 301 (1991).

Constitutional due process requires that the government prove every fact necessary to constitute the crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The burden of proof never shifts but rests with the prosecution throughout. Turner v. Commonwealth, 86 Pa. 54, 74 (1878). Guilt must be based on more than mere suspicion or conjecture. Commonwealth v. Bailey, 448 Pa. 224, 227, 292 A.2d 345, 346 (1972). It is the continuing presumption of innocence which is the basis for the requirement that the state has a never-shifting burden to prove guilt beyond a reasonable doubt. Commonwealth v. Bonomo, 396 Pa. 222, 229, 151 A.2d 441, 445 (1959). The never-shifting burden on the Commonwealth is to prove every essential element of the charge. Id. at 230, 151 A.2d at 445-46. One of the elements of the crime which the Commonwealth must prove is intent. Commonwealth v. Graves, 461 Pa. 118, 126, 334 A.2d 661, 665 (1975). The due process burden of proof applies to summary offenses as well as to other criminal charges. Commonwealth v. Karl, 340 Pa.Super. 493, 490 A.2d 887 (1985).

Guilt must be proved and may not be based on mere conjecture. Commonwealth v. Bausewine, 354 Pa. 35, 41, 46 A.2d 491, 493 (1946). The evidence of guilt must be of such quantity and quality to overcome the presumption of innocence beyond a reasonable doubt. Id. at 41, 46 A.2d at 493. In Bausewine, the Pennsylvania Supreme Court found circumstantial evidence insufficient to convict a police chief of taking bribes. See also Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973) (evidence was insufficient to convict when defendant was observed next to a window from which a pane of glass was later found removed, facilitating a burglary); Commonwealth v. Stores, 317 Pa.Super. 109, 463 A.2d 1108 (1983) (proximity to a jewelry case later found pried open and emptied insufficient to convict).

Mere presence at the scene of a crime is insufficient to establish guilt. Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966). In Garrett, the defendant’s conviction for robbery was overturned because the Commonwealth had proved only his presence at the scene of a robbery but had offered no evidence of his participation in the robbery. This court en banc applied the principle of Garrett, that mere presence at the scene of a crime is insufficient to prove guilt, to a conviction for disorderly conduct in Commonwealth v. Leonhard, 245 Pa.Super. 116, 369 A.2d 320 (1976). Leonhard was convicted of disorderly conduct after a prison disturbance. This court reasoned that his presence in the area where the disturbance occurred was insufficient to prove that he had smashed furniture or engaged in other disorderly conduct.

The six defendants in this case were charged with disorderly conduct. The juveniles were charged with violations of 18 Pa.C.S. § 5503(a)(2) which provides in relevant part:

(a) Offense defined. — A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(2) makes unreasonable noise;

18 Pa.C.S. § 5503.

The summary citation issued to Angel Clark accused her of a violation of 18 Pa.C.S. § 5503(a)(1) which provides:

(a) Offense defined. — A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
* * * * * *
(1) engages in fighting or threatening, or in violent or tumultuous behavior;
* * * * * *

18 Pa.C.S. § 5503.

To prove that the six defendants were guilty of disorderly conduct the Commonwealth had to prove both conduct and intent or recklessness. During the trial de novo on the citations the police witnesses testified that they could not identify who among the eleven arrested had made a loud noise or who had thrown any object. Nor could the police identify any of the six defendants as being present on the roof when the shouting and throwing occurred.

During the trial de novo, two witnesses were called, the police officers who arrested the six defendants. Among the questions and answers which were recorded were:

Q: Sergeant Whitson, can you identify any of these defendants as having thrown anything off the roof?
A: No.
Q: Can you identify any of these defendants as having made any noise while they were on the roof before they were arrested?
A: Individually?
Q: Yeah.
A: No.
Q: Well, can you identify the six of them together, these six people, as having made noise?
A: I know they were part of a group that was up there making noise and throwing rocks and throwing bottles.
Q: Did you hear any of these six people make noise?
A: I cannot say that I heard them individually.
Q: But when the screaming and yelling and throwing of rocks occurred, you didn’t see any of these specific people on the roof, did you?
A: If you are asking me, can I identify them individually, no, I cannot.
Hs * * * * *
Q: Did you see any of these six people up on the roof when that disorder was caused on the street?
A: I saw a group on the roof. As I have stated before, I cannot say that I saw these defendants individually or identify them individually as being part of that group that was on the roof.
The trial judge himself questioned the police witness:
By the Court:
Q: Sergeant, I’m not sure I quite understand, and you straighten me out. My understanding is that there were a group of people up on the roof?
A: That’s correct.
Q: Do you know — you don’t know how many, I guess?
A: No, I don’t, Your Honor.
Q: Were there more than six, do you know that?
A: Yes.
Q: Now, all the people up there when you saw them, were they doing these things that they talked about, all of them? Do you know that you could tell?
A: I can’t say that every one of them was doing it, no.
Q: Now, when you went up on the roof, you went up to help arrest them, I guess?
A: Yes.
Q: The six defendants were there?
A: Yes.
Q: Were there other people there?
A: There were a total of eleven, I believe.
Q: Eleven. Were they all arrested?
A: Yes.
Q: Including the six defendants; is that correct?
A: Yes, Your Honor.
Q: But, as I understand it, Sergeant, you don’t know how many of the eleven were doing these things, throwing the rocks and stuff like that?
A: Honestly, Your Honor, no, I cannot.

Without evidence that the defendants indeed committed the crime of which they are accused, the court may not convict. Leonhard, supra.

In its opinion, the trial court misapprehends and misapplies the criminal law. The trial court’s opinion states:

[W]here a Defendant is intentionally at the scene of a crime, as in our case, even though not actually assisting in the crime, where such presence tends to the encouragement of the criminals, it may be prima facie be [sic] inferred that he is a participant, and the obligation is cast upon the Defendant to prove his actual non-involvement.

For that proposition, the trial court cites Commonwealth v. Merrick, 65 Pa.Super. 482 (1917). In Merrick this court held that a charge of riot and inciting to riot brought under the common law, not a statute, could be sustained against a union organizer whose incendiary words were quoted at length but whose actions were not proved. It is a misstatement of the holding of Merrick to suggest that it stands for a shift of the burden of proof to the defendant. See Bonomo, supra. The trial court’s reading of Merrick is directly counter to the reading given it by this court en banc in Commonwealth v. Reeves, 255 Pa.Super. 409, 387 A.2d 877 (1978). There, we stated that Merrick stands for the proposition that more than mere presence is needed to prove a charge of riot. Id. at 415, 387 A.2d at 881. Reeves held that photographs of the defendants at the scene without more was insufficient to convict them of riot. See also Commonwealth v. Crawford, 334 Pa.Super. 630, 635, 483 A.2d 916, 918 (1984) (more than presence required to convict the defendant on a charge of riot).

The trial court suggests that its misapprehension of Merrick as shifting the burden of proof to the defendant was “reaffirmed” in Commonwealth v. Dalahan, 262 Pa.Super. 615, 396 A.2d 1340 (1979). The trial judge in this case said, “[In Dalahan] the Defendant could not, or did not, satisfactorily explain his presence at the scene of the crime.” (Emphasis in the trial court opinion.) The trial judge goes on to say:

In Dallaban [sic] the Defendants [sic] proffered explanation, of his being at the scene was obviously fabricated. In orneases, the Defendants did not testify and therefore gave no explanation of their presence on the roof ... there was absolutely no evidence presented as to (1) why the Defendants were on the roof or (2) that they were entitled to be on the roof. Hence, we believe Dallaban [sic] and the present cases are akin.

The trial court is mistaken. In Dalahan the defendant was convicted of burglary based on the circumstantial evidence that he was found in an alley at 3:30 a.m., that he was holding a tire iron, that he was crouched under a splintered window frame and that he lied about his reason for being there. While Dalahan may stand for the proposition that circumstantial evidence may be sufficient to convict, it cannot be read as placing the burden on the defendant to prove that he did not commit a crime. The due process clause prevents that. Bonomo, supra. Dalahan’s explanation was an issue in his appeal because he had lied about his reason for being in the alley. A false explanation is evidence of guilt. Commonwealth v. Gockley, 411 Pa. 437, 453, 192 A.2d 693, 701 (1963). In the case here appealed from, the defendants did not testify and so could not have offered a false explanation.

The record reveals no evidence that any one of the six defendants who here appeal engaged in any conduct which would constitute disorderly conduct; thus, the Commonwealth has failed in its burden of production and its burden of proof. Leonhard, supra; Bonomo, supra; Karl, supra.

Even though the Commonwealth has failed to prove that any of the six defendants who here appeal threw rocks or shouted obscenities, we next consider whether the six could be adjudged guilty on a theory of accomplice culpability.

An accomplice may be found guilty without proof that the accomplice actually performed any criminal act. Commonwealth v. Rosetti, 322 Pa.Super. 536, 540, 469 A.2d 1121, 1123 (1983). A person may be held liable for the conduct of another under 18 Pa.C.S. § 306 which provides in pertinent part:

(a) General rule. A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
(b) Conduct of another. A person is legally accountable for the conduct of another person when:
$ * sH sfs # &
(3) he is an accomplice of such other person in the commission of the offense.
(c) Accomplice defined. A person is an accomplice of another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning or committing it ...

18 Pa.C.S. § 306.

Accomplice culpability is established through a two-step analysis: first, that the accomplice acted in such a way that he solicited or aided another’s criminal conduct and, second, that any act was committed with the intent of promoting or facilitating the crime. See Commonwealth v. Woodward, 418 Pa.Super. 218, 614 A.2d 239 (1992) (Cirillo, J.); Commonwealth v. Potts, 388 Pa.Super. 593, 566 A.2d 287 (1989), allocatur granted, 525 Pa. 656, 582 A.2d 322 (1990).

Accomplice culpability is subject to due process analysis. To be an accomplice the defendant must be an active partner with the intent to commit the crime. Commonwealth v. Brady, 385 Pa.Super. 279, 560 A.2d 802 (1989). An accomplice must have done something to participate in the criminal venture. Commonwealth v. Flowers, 479 Pa. 153, 387 A.2d 1268 (1978) (evidence was insufficient to convict a defendant who introduced undercover police officer to drug seller and was present at the sale of $200 worth of marijuana). Even though the degree of collusion or concert needed to convict may be slight, the burden is on the Commonwealth to prove that slight degree of participation. Commonwealth v. Graves, 316 Pa.Super. 484, 489-90, 463 A.2d 467, 470 (1983) (evidence was sufficient to convict a defendant who for three years acted as driver for and entered the bank with co-conspirators in a check fraud scheme). More than mere presence at the scene is needed to create accomplice culpability. Commonwealth v. Stein, 401 Pa.Super. 518, 585 A.2d 1048 (1991) (the Commonwealth offered insufficient evidence of intent to convict the defendant salesman of fraud when his employer failed to perform home repairs); Brady, supra, (presence at the burglary scene and in the car when the loot was sold insufficient to convict).

Our scope of review commands that we view all evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner. Thomas, supra. Consequently, we must now ask whether accomplice culpability is a reasonable inference from the evidence in this case.

Inference is a process of reasoning by which a fact or proposition is deduced as the logical consequence from other facts which have been established. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991, 996 (1983). A reasonable inference of guilt must be based on facts and conditions proved; it cannot rest solely on suspicion or surmise. Bausewine, supra. Evidentiary inferences violate due process unless the inferred fact is “more likely than not to flow from the proved fact on which it is made to depend.” Turner v. United States, 396 U.S. 398, 405, 90 S.Ct. 642, 646, 24 L.Ed.2d 610 (1970), cited in Commonwealth v. McFarland, 452 Pa. 435, 439, 308 A.2d 592, 594 (1973). The more likely-than-not standard is the minimum under which an inference is reasonable. Wojdak, supra. Anything less would be suspicion or conjecture on which our law will not tolerate a criminal conviction. Wojdak, supra; Bausewine, supra; Bailey, supra.

To convict a defendant of accomplice culpability, the Commonwealth must establish that the crime has been committed and must prove every material element. Bonomo, supra; Commonwealth ex rel. Scolio v. Hess, 149 Pa.Super. 371, 27 A.2d 705 (1942) (Commonwealth’s appeal of a discharge on a habeas corpus petition was unsuccessful when the evidence was insufficient to establish a prima facie case that the owner of a property knew that it was being used by a tenant as a house of prostitution).

In this case, the Commonwealth presented no evidence which makes it more likely than not, Wojdak, supra, that the six persons on the roof solicited or aided the commission of disorderly conduct. See 18 Pa.C.S. § 306(c), supra. The Commonwealth’s case fails because it has proved only that the six were present on the roof when the police arrived. Mere presence is not enough to convict on accomplice culpability. Stein, supra; Brady, supra.

The Commonwealth has not proved that any of the six was individually and actually on the roof when the disorderly conduct occurred. We cannot infer that because the six were on the roof when the police officers made their arrests that they were on the roof when the disorderly conduct occurred. No evidence was presented which placed any of the six in proximity to any act of disorderly conduct.

Where an element of a crime is not established beyond a reasonable doubt, then a verdict of guilt for that crime cannot stand. Stein, supra, citing Commonwealth v. Frank, 322 Pa.Super. 6, 11, 468 A.2d 1131, 1134 (1983). The evidence in this case, even when viewed in the light most favorable to the Commonwealth, fails to establish that any of the six defendants committed any act which either constitutes disorderly conduct or is an act which solicited or aided disorderly conduct. Because we conclude that the Commonwealth has not proved every element of the crime, we reverse the trial court’s judgment of sentence.

We vacate the judgment of sentence and order the discharge of the appellants.

POPOVICH, J., dissents.

      . The defendants also ask whether the Commonwealth improperly withheld allegedly exculpatory evidence in the form of a report prepared after an investigation of the incidents by the Pennsylvania State Police. Because of our disposition of the first question, we have no need to reach the second question and so shall not.