author: WIEAND, Judge:

text:
    582 A.2d 1067
    COMMONWEALTH of Pennsylvania v. Louis R. BENCHINO, Appellant.
    Superior Court of Pennsylvania.
    Argued March 8, 1990.
    Filed Oct. 25, 1990.
    Reargument Denied Dec. 21, 1990.

      Peter T. Campana, Williamsport, for appellant.
    Robert W. Ferrell, III, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   WIEAND, Judge:

In this appeal from a judgment of sentence imposed following a bench trial in which Louis R. Benchino was found guilty of possession of cocaine with intent to deliver, he contends that police conduct was so outrageous as to constitute a violation of due process and that he was entrapped as a matter of law. After careful review, we reject these arguments and affirm the judgment of sentence.

The facts upon which appellant was convicted were stated succinctly in the opinion of the learned trial judge as follows:

Evidence at trial showed that the defendant had been a heavy user of drugs, including cocaine, and during his period of heaviest use, had met a dealer named Tomas Dasso who has since been arrested and is cooperating with the Commonwealth. The defendant knew Dasso as a South American who was heavily involved in importing drugs, including cocaine. The defendant had not seen Dasso for more than a year and claims to have been attempting to extricate himself from involvement in the use of and dealing in drugs. According to the testimony of Agent Joseph Byerly of the Attorney General’s Office, Dasso had mentioned the defendant as a potential target for investigation. Dasso had contacted the defendant and indicated that he wanted a large debt repaid to him, stating that the people behind him were concerned about it. The debt related to drug transactions which had occurred more than a year before. The defendant discussed with Dasso the possibility of purchasing between two and four ounces of cocaine, perhaps more, which he would resell in order to repay the debt. Dasso and the defendant agreed that a third party (Joseph Byerly, an undercover narcotics agent) would deliver the cocaine to the defendant.
When Agent Byerly met with the defendant, the defendant indicated that he and Dasso had done business in the past. The agent advised Benchino that the price was $50.00 for a gram or $1400.00 for [an] ounce[ ] of cocaine. The defendant asked Byerly to “front” him two ounces of cocaine because he did not have enough money to cover the purchase. He asked for an hour in which to obtain the money, and Agent Byerly agreed. After an hour, the defendant returned and asked Agent Byerly if he would accept $500.00 as partial payment for the two ounces, and defendant would pay the full amount later. Agent Byerly refused and asked the defendant to leave the $500.00 as good faith money that he would return later to take delivery of the cocaine. The defendant rejected Agent Byerly’s request, and the two agreed that they would meet later, when the defendant would [purchase] between two and four ounces of cocaine.
Several days later, the defendant and Agent Byerly met again. At that time, the defendant offered the Agent $1400.00 for [an] ounce of cocaine and [an] additional ounce[] [was] fronted. The transaction occurred and the Agent immediately thereafter placed the defendant under arrest. Also arrested nearby was a co-defendant who had advanced the money to Benchino.

Instantly, appellant based his claim of a due process violation on an assertion that he had been implicitly threatened by efforts of the Commonwealth’s informant to collect a drug debt which he had owed to the informant. According to appellant, it had been his fear of Dasso, the informant, which had caused him to pretend to go along with the scheme merely to avoid retaliation for not being able to pay the debt. Appellant argues further that the discussions about his obtaining cocaine, along with Agent Byerly’s allowing him to sample a small amount of cocaine at their first meeting, had rejuvenated his desire to use the drug. From this appellant postulates that if he had not been fearful of the informant and had not had his appetite for cocaine rekindled, he would not have agreed to participate in the drug transaction which led to his conviction.

It is correct, as appellant argues, that the Superior Court held in Commonwealth v. Mathews, 347 Pa.Super. 320, 500 A.2d 853 (1985), that “police involvement in criminal activity may be so outrageous that a prosecution will be barred on due process grounds.” Id., 347 Pa.Superior Ct. at 321, 500 A.2d at 854. See: Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). See also: Commonwealth v. Bonace, 391 Pa.Super. 602, 607, 571 A.2d 1079, 1082 (1990); Common wealth v. Delligatti, 371 Pa.Super. 315, 321, 538 A.2d 34, 37 (1988). “The question whether government conduct [has been] so outrageous as to constitute a violation of due process is a question of law to be determined by the court, not the jury.” United States v. Engler, 806 F.2d 425, 430 (3d Cir.1986), cert. denied, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987). See also: United States v. Swiatek, 819 F.2d 721, 726 (7th Cir.1987), cert. denied, 484 U.S. 903, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987); United States v. Salazar, 720 F.2d 1482, 1488 (10th Cir.1983), cert. denied, 469 U.S. 1110, 105 S.Ct. 789, 83 L.Ed.2d 783 (1985); United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir.1978); United States v. Quinn, 543 F.2d 640, 648 (8th Cir.1976); Commonwealth v. Lindenmuth, 381 Pa.Super. 398, 403, 554 A.2d 62, 64 (1989). Before the conduct of law enforcement officials or government agents will be found to have violated due process, however, it must be shown that police conduct was “ ‘so grossly shocking and so outrageous as to violate the universal sense of justice.’ ” United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983), quoting United States v. Ryan, 548 F.2d 782, 789 (9th Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977). See also: United States v. Ofshe, 817 F.2d 1508, 1516 (11th Cir.1987), cert. denied, 484 U.S. 963, 108 S.Ct. 451, 98 L.Ed.2d 391 (1987); Owen v. Wainwright, 806 F.2d 1519, 1521 (11th Cir.1986), cert. denied, 481 U.S. 1071, 107 S.Ct. 2466, 95 L.Ed.2d 875 (1987). The establishment of a due process violation “generally requires ‘proof of government overinvolvement in the charged crime and proof of the defendant’s mere passive connection to the government orchestrated and implemented criminal activity.’ ” United States v. Duvall, 846 F.2d 966, 973 (5th Cir.1988), quoting United States v. Nations, 764 F.2d 1073, 1077 (5th Cir. 1985). Moreover, for due process to bar a conviction, the government’s involvement in the commission of the crime “must be malum in se or amount to the engineering and direction of the criminal enterprise from beginning to end.” United States v. Citro, 842 F.2d 1149, 1153 (9th Cir.1988), cert. denied, 488 U.S. 866, 109 S.Ct. 170, 102 L.Ed.2d 140 (1988). See also: United States v. Williams, 791 F.2d 1383, 1386 (9th Cir.1986), cert. denied, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986); United States v. Gonzales, 539 F.2d 1238, 1239-1240 (9th Cir.1976).

Review of federal decisions reveals that the conduct of the government in conducting criminal investigations will be found to violate due process “ ‘only in the rarest and most outrageous circumstances.’ ” United States v. Arteaga, 807 F.2d 424, 426 (5th Cir.1986), quoting United States v. Yater, 756 F.2d 1058, 1066 (5th Cir.1985), cert. denied, 474 U.S. 901, 106 S.Ct. 225, 88 L.Ed.2d 226 (1985). See also: United States v. Rubio, 834 F.2d 442, 450 n. 6 (5th Cir. 1987); United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir.1984), cert. denied, 469 U.S. 1072, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984). Thus, the Court of Appeals for the Third Circuit has said:

[A] successful due process defense must be predicated on intolerable government conduct which goes beyond that necessary to sustain an entrapment defense.... We must necessarily exercise scrupulous restraint before we denounce law enforcement conduct as constitutionally unacceptable; the ramifications are wider and more permanent than when only a statutory defense is implicated.

United States v. Jannotti, 673 F.2d 578, 607 (3d Cir.1982), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). See: Hampton v. United States, supra 425 U.S. at 495 n. 7, 96 S.Ct. at 1653 n. 7, 48 L.Ed.2d at 122 n. 7 (Powell, J. Concurring) (“Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.”). See also: United States v. Ward, 793 F.2d 551, 553-555 (3d Cir.1986); United States v. Gambino, 788 F.2d 938, 945 n. 6 (3d Cir.1986), cert. denied, 479 U.S. 825, 107 S.Ct. 98, 93 L.Ed.2d 49 (1986); United States v. Beverly, 723 F.2d 11 (3d Cir.1983).

It has been held that the mere fact that an investigation has been begun without probable cause or reasonable suspicion does not violate due process. See: United States v. Biswell, 700 F.2d 1310, 1314 (10th Cir.1983) (“Any absence of a reasonable basis for initiation of the undercover investígation does not bar the prosecution.”); United States v. Jannotti, supra at 609 (commencement of investigation without probable cause “does not bar the conviction of those who rise to its bait”); United States v. Myers, 635 F.2d 932, 940-941 (2d Cir.1980), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980) (no constitutional requirement of reasonable suspicion before investigation may begin). See also: United States v. Driscoll, 852 F.2d 84, 87 (3d Cir.1988). But see: United States v. Luttrell, 889 F.2d 806, 812-814 (9th Cir.1989) (government should have some factual basis for suspicion prior to approaching an apparently innocent individual and offering opportunity to engage in criminal activity).

The government also does not violate due process merely by employing an undercover or reverse sting operation, or because its agents supply ingredients for commission of a crime or contraband to a defendant. United States v. Goodwin, 674 F.Supp. 1211, 1217 (E.D.Va.1987), aff'd, 854 F.2d 33 (4th Cir.1988). See also: United States v. Valona, 834 F.2d 1334, 1344-1345 (7th Cir.1987) (government’s supplying of small sample of cocaine to defendant was typical of preliminary stages of large drug transactions and was not so outrageous as to violate due process); United States v. Buishas, 791 F.2d 1310, 1314 (7th Cir.1986) (supplying of small amount of marijuana to defendant was reasonably necessary to complete investigation and did not violate due process); United States v. Ramirez, supra at 541 (undercover agents may, under proper circumstances, supply drugs to a suspect to gain his confidence); United States v. Boffardi, 684 F.Supp. 1263, 1268 (S.D.N.Y.1988), aff'd without opinion, 872 F.2d 1022 (2d Cir.1989) (controlled deliveries of illicit substances by government agents to those who desire them, in the absence of entrapment, does not violate due process); Commonwealth v. Delligatti, supra 371 Pa.Super. at 321-323, 538 A.2d at 37-38 (undercover officer’s permitting defendant to retain a portion of heroin defendant obtained for officer as a fee did not violate due process as such conduct is normal in drug transactions and was necessary to avoid jeopardizing ongoing investigation).

The courts have recognized that under some circumstances, it may be necessary or acceptable for undercover agents or government informants to engage in unsavory conduct such as making express or implied threats or offering large sums of money as inducements for suspects to act. This is so because such activities frequently constitute ordinary bargaining tactics in criminal enterprises such as narcotics trafficking and may be necessary to enable the agent or informant to establish or maintain a credible cover. See: United States v. Emmert, 829 F.2d 805, 811-812 (9th Cir.1987) (role of government agents involving alleged threats and intimidation of college student, along with offering student a $200,000 finder’s fee for securing a supply of cocaine for them, did not violate due process). See also: Owen v. Wainwright, supra at 1522 (“government infiltration of criminal activity is a legitimate and permissible means of investigation and frequently requires that the government agent furnish something of value to the criminal”); United States v. Hodge, 594 F.2d 1163, 1165-1167 (7th Cir.1979) (due process not violated by government’s use of paid informant, who, via contingent fee arrangement with government, was compensated for each individual narcotics transaction he engaged in with members of a specific narcotics dealing organization); United States v. Reynoso-Ulloa, 548 F.2d 1329, 1338-1339 (9th Cir.1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978) (viewed in context of sordid business of drug trafficking, threat made by government informant did not rise to level of due process violation). Cf. United States v. Wingo, 723 F.Supp. 798, 801-802 (N.D.Ga.1989) (course of conduct employed by government, which presented defendant with alternative of cooperating in investigation or facing criminal charges, did not violate due process).

The few appellate decisions in which government conduct has been found to violate due process have generally involved long term police involvement in the establishment and operation of ongoing criminal enterprises. See: United States v. Twigg, 588 F.2d 373 (3d Cir.1978) (due process violation where government agent suggested creation of drug laboratory, supplied necessary equipment and ingredients, as well as building to house lab, and provided all laboratory expertise, without which defendants would not have known how to produce drug); Greene v. United States, 454 F.2d 783 (9th Cir.1971) (due process violated where, over a two and one-half year period, government agent contacted defendants after their arrest for bootlegging and offered to supply necessary materials, operator and location for still, supplied sugar at wholesale prices, urged the beginning of production and was the sole customer for still’s entire production); Commonwealth v. Mathews, supra (due process violated where police supplied defendants with money to purchase chemicals necessary to manufacture methamphetamine and to rent residence in which to set up lab, helped them transport necessary equipment to lab and instructed them step by step in manufacturing process).

In the absence of such pervasive, long term police involvement in a criminal enterprise, the courts have generally refused to find due process violations, even where the government’s conduct was unseemly. See and compare: United States v. Walther, 867 F.2d 1334, 1338-1339 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 144, 107 L.Ed.2d 103 (1989) (government’s conduct in initiating negotiations for sale of drugs and supplying drugs and warehouse as site for sale was not so outrageous as to violate due process); United States v. Simpson, 813 F.2d 1462, 1465-1468 (9th Cir.1987), cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987) (F.B.I.’s continued use of informant after learning of her sexual involvement with defendant was not so outrageous as to violate due process); United States v. Arteaga, supra at 427 (due process not violated by use of informant who formerly was defendant’s attorney on commercial matters); United States v. Fortna, 796 F.2d 724, 735 (5th Cir.1986), cert. denied, 479 U.S. 950, 107 S.Ct. 437, 93 L.Ed.2d 386 (1986) (government’s use of mother of defendant’s child to obtain evidence against him did not violate due process); United States v. Mazzella, 768 F.2d 235, 237-239 (8th Cir.1985), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985) (DEA’s conduct in placing advertisement in magazine offering for sale chemicals commonly used in manufacturing methamphetamine, suggesting that defendant submit a list of desired chemicals for a price quote and shipping the chemicals to him was not so outrageous as to violate due process); United States v. Tobias, 662 F.2d 381, 387 (5th Gir.1981), cert. denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982) (no due process violation where undercover agent suggested to defendant that he manufacture PCP, supplied him with formula, chemicals and equipment necessary to do so, and continued providing technical advice during manufacturing process); United States v. Penn, 647 F.2d 876, 880-882 (9th Cir.1980), cert. denied, 449 U.S. 903, 101 S.Ct. 276, 66 L.Ed.2d 134 (1980) (police conduct in offering five dollar bribe to defendant’s five year old son to show them where his mother had hidden her supply of heroin was not so outrageous as to constitute violation of due process).

When the teachings of the decided cases are applied to the facts of the instant case, we are persuaded that police conduct used in the investigation and apprehension of appellant was not violative of due process. The government informant had had an extensive past history of narcotics dealings with appellant. It was, therefore, not unreasonable for the informant to identify appellant as a possible target for the Commonwealth’s drug investigation. Although appellant said that he had felt threatened by the informant’s mention of his past drug debt, there was no evidence that any direct of explicit threats had been made to appellant, and, in fact, appellant’s apparent willingness to sell cocaine as a means to repay the debt, as well as make a profit, belied his assertions of fear.

Even if the mention of the debt had been intended and understood as an implicit threat, however, the conduct of the police could not be said to be outside the normal course of events in drug trafficking. The informant had approached appellant after a hiatus of more than a year, in which the two had had no contact. For the informant to have expressed no concern for the existing debt would have been unrealistic. The fact that it was mentioned did nothing more than afford appellant an opportunity to purchase cocaine. As for Agent Byerly’s permitting appellant to sample the cocaine, this too was not outrageous conduct, but was a normal part of a drug transaction. Appellant had agreed to purchase a large quantity of cocaine which had been represented to be of high quality. Therefore, it was not unreasonable for Agent Byerly to expect that appellant would want to sample the cocaine to determine its quality before completing the transaction. Having carefully reviewed all the circumstances surrounding the investigation and arrest of appellant, we perceive no basis for holding that the investigatory techniques employed by the Commonwealth were so outrageous as to violate due process.

Appellant also contends that the evidence showed entrapment as a matter of law. The defense of entrapment is defined by statute as follows:

(a) General rule.—A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of proof.—Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment.

18 Pa.C.S. § 313(a) and (b). The statute adopts an objective standard. It focuses on police conduct and tactics rather than upon a defendant’s predisposition to commit crime. Commonwealth v. Weiskerger, 520 Pa. 305, 554 A.2d 10 (1989); Commonwealth v. Wright, 396 Pa.Super. 276, 578 A.2d 513 (1990); Commonwealth v. Jones, 242 Pa.Super. 303, 363 A.2d 1281 (1976). “In order to succeed on the defense of entrapment, ‘it must be shown that police conduct would have induced an innocent person to commit a crime.’ ” Commonwealth v. Wilson, 381 Pa.Super. 253, 258, 553 A.2d 452, 454 (1989), quoting Commonwealth v. Stokes, 264 Pa.Super. 515, 518, 400 A.2d 204, 206 (1979). See also: Commonwealth v. McGuire, 339 Pa.Super. 320, 328, 488 A.2d 1144, 1149 (1985) (“Pennsylvania’s entrapment statute addresses the concern over ‘unconventional’ investigatory methods, and the potentialities inherent in these overreaching tactics.”). However, “[pjolice use of artiface and stratagem to provide a person with an opportunity to commit a criminal act, without improper persuasion or inducement, does not amount to entrapment.” Commonwealth v. Frank, 357 Pa.Super. 442, 448, 516 A.2d 64, 67 (1986). “Merely affording opportunities or facilities for the commission of a crime by one who already ha[s] the criminal intent to engage in such a crime does not defeat the prosecution.” Commonwealth v. Lee, 262 Pa.Super. 218, 221, 396 A.2d 724, 725 (1978). See also: Commonwealth v. Loccisano, 243 Pa.Super. 522, 366 A.2d 276 (1976).

Appellant argues that the Commonwealth’s use of implicit threats regarding the debt owed to Dasso and Agent Byerly’s allowing him to sample the cocaine was conduct so egregious that it amounted to entrapment as a matter of law. The trial court was unpersuaded by these arguments and rejected appellant’s entrapment defense, reasoning as follows:

The evidence presented, including the recordings of the conversations between the defendant and Dasso and Byerly, reveal, however, that the defendant was an enthusiastic participant in the transaction. When the prior debt was mentioned by Dasso, Benchino immediately began to scheme to obtain a quantity of cocaine. It was the defendant who made various proposals for financing a deal, and who persisted and who ultimately obtained a backer, with the admitted purpose of paying off the debt and realizing a profit for himself and others, while at the same time obtaining cocaine for personal use.
The burden of proving entrapment rests with defendant by a preponderance of the evidence. 18 Pa.C.S.A. § 313(b). Where Commonwealth Agents provide drugs to a defendant, who is then charged with possession with intent to deliver, and the defendant raises entrapment, the Court must scrutenize [sic] the facts carefully because of the risk the Commonwealth may have created the offense. Looking at the facts in this case, it would appear that the defendant had not dealt with Dasso for more than one year, although he had dealt heavily with him before. There is no evidence that the defendant had gone through drug rehabilitation or that he resisted efforts by Commonwealth agents to participate in these transactions. On the contrary, the tape recorded conversations are overwhelming evidence that the defendant enthusiastically seized the opportunity to engage in the transaction and repeatedly provided various ideas to both the narcotics agent and the informant for providing drugs, using strong sell tactics. The defendant intended to resell some of the drug at a profit to pay off the debt he owed Dasso and to profit his supporters and obtain the remainder for self use. The conduct of the Commonwealth was not shown to have crossed the line from mere trickery, or providing a predisposed defendant an opportunity to commit a crime, to the type of excessive zeal which risks inducing a law abiding citizen to become a criminal.

After careful review, we are satisfied that there was sufficient evidence to support the trial court’s conclusion that police conduct in this case was not of a kind likely to induce an innocent person to become involved in a drug transaction. Although appellant claims to have been intimidated and coerced, there is no evidence that any direct threats were made by the Commonwealth’s informant; and appellant’s own conduct suggested that he was willingly taking advantage of the opportunity provided for him to obtain drugs. Under these circumstances, appellant’s defense of entrapment presented an issue of fact which could be accepted or rejected by the trier of the facts. See: Commonwealth v. Delligatti, supra (no entrapment as a matter of law where undercover police officer approached defendant and asked him to obtain heroin, and defendant readily accepted officer’s proposition without further insistence); Commonwealth v. Frank, supra (no entrapment as matter of law where undercover agent posed as patient who desired to control her weight, and, who subsequently told defendant physician that her boyfriend was using medication which doctor had prescribed for her; agent merely provided defendant with opportunity to illegally dispense medication). See also: Commonwealth v. Danko, 281 Pa.Super. 97, 421 A.2d 1165 (1980); Commonwealth v. Stokes, supra; Commonwealth v. Wright, 235 Pa.Super. 289, 340 A.2d 544 (1975). Compare: Commonwealth v. Wright, 396 Pa.Super. 276, 578 A.2d 513 (1990) (entrapment as a matter of law established where police informant cultivated friendship with defendant solely to induce defendant to purchase marijuana on his behalf and defendant purchased the drug merely as a favor to informant without profiting therefrom); Commonwealth v. Thompson, 335 Pa.Super. 332, 484 A.2d 159 (1984) (entrapment as a matter of law established where defendant, who was a middle aged, black police officer, was induced to deliver marijuana to young, blonde undercover state trooper after months of kissing and socializing with her).

Because neither principles of due process nor the entrapment provisions of the Pennsylvania Crimes Code barred appellant’s conviction as a matter of law, the judgment of sentence will be affirmed.

Judgment of Sentence affirmed.

      . Benchino was sentenced to pay a fine of one thousand ($1,000.00) dollars and undergo imprisonment for not less than eight (8) months nor more than twenty-three (23) months.

        . Appellant also asserts that the $50.00 per gram price quoted to him by Agent Byerly constituted an improper inducement in that it was far below the $100.00 per gram market price for cocaine which had been prevalent in the neighborhood at the time. Agent Byerly, however, explained that, although when sold by the gram, cocaine was priced at $100.00, when the drug was sold in bulk quantities the prevailing price in the area was between $50.00 and $75.00 per gram, depending upon the quality of the drug.

      . The transcripts of the intercepted communications which appellant had with both Dasso, the informant, and Agent Byerly have not been included in the official record as certified to this court on appeal. However, the transcripts have been included in appellant’s reproduced record.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    582 A.2d 1074
    Risa M. EDELSTEIN v. Norman L. EDELSTEIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1990.
    Filed Oct. 26, 1990.
    Reargument Denied Jan. 4, 1991.

      Stewart B. Barmen, Pittsburgh, for appellant.
    Sanford A. Middleman, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

This is an appeal from an Order entered December 28, 1989, directing appellant/husband to pay $4,000 per month alimony. The case has a somewhat complex procedural history beginning with the parties’ divorce decree entered September 20, 1984, wherein the court retained jurisdiction over the issues of equitable distribution, alimony, child support and counsel fees.

On December 18, 1986, the court entered a decree nisi distributing the marital estate and ordering the appellant to pay alimony and child support of $4,000 per month. Exceptions were filed and a final Order was entered July 6, 1987, wherein the court, inter alia, increased the unallocated alimony and support payment to $4,300 per month. Upon consideration of consolidated appeals (filed by husband and wife), this Court affirmed the distribution of the marital assets but vacated the award of alimony and support (Edelstein v. Edelstein, 381 Pa.Super. 662, 548 A.2d 644 (1988) (unpublished memorandum).

On remand, the amount and duration of any subsequent award of alimony must be supported by an inquiry into wife’s earning capacity and the parties’ appropriate standards of living. We further direct the court to distinguish the amount of child support it may award from any subsequent award of alimony. The court’s equitable distribution of the marital assets is affirmed.

Id. A hearing in accordance with the remand Order was held and an Order was entered October 2, 1989 finding appellee entitled to alimony of $4,000 per month for ten years, the Order being modifiable upon change of circumstances of either party. Post-trial motions for relief were filed and a modified Order was entered, awarding appellee $4,000 per month alimony from July, 1988 through December 1999, and scheduling a hearing to determine child support. The Order did not specifically consider the consequences of any change of circumstances affecting the parties.

Appellant argues the trial court, on remand from this Court, abused its discretion by awarding appellee $4,000 per month alimony in that the court failed to consider the parties’ modest standard of living during the marriage as it was directed to do by this Court. Additionally, appellant urges the trial court abused its discretion in that the alimony award is contrary to the weight of evidence and contrary to law. He argues the alimony award should be considered in conjunction with “(1) the generous child support award of One Thousand Five Hundred Dollars ($1,500.00) per month, to which Husband consented, (2) Wife’s earning capacity, (3) Husband’s continuous diminishing earning capacity and (4) an event such as Husband’s death, disability or retirement.” Appellant’s brief at p. 10.

The standard of review for questions concerning alimony is limited to a determination of whether the trial court abused its discretion. O’Callaghan v. O’Callaghan, 389 Pa.Super. 319, 567 A.2d 308 (1989); Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). Under such a standard, albeit we are not to usurp the trial court’s duty as the finder of fact, our obligation to review the proceedings thoroughly under the Divorce Code is no less extant. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). In determining whether alimony is necessary, and in determining the nature, amount, duration and manner of payment of alimony, the court must consider numerous factors including the parties’ earnings and earning capacities, income sources, mental and physical conditions, contributions to the earning power of the other, educations, standard of living during the marriage, the contribution of a spouse as homemaker and the duration of the marriage. See 23 P.S. § 501 Alimony.

The parties were married and lived together for 16 years during which time the appellant’s income grew from $14,000 per year as a medical student to approximately $90,000 per month as an ophthalmologist, specializing in cataract surgery. We agree with this Court’s prior determination that the appellant’s allegation he is laboring under a diminishing earning capacity is specious given his undisputed specialized training and reasonable earnings and earning capacity. (.Edelstein, supra.) The appellee’s earning capacity, on the other hand, is essentially nonexistent as she suffers from debilitating Crohn’s disease. Expert medical testimony by Dr. Robert Chamovitz, a Board certified internist and gastroenterologist, confirmed that in addition to recurrent obstruction, fistulation and abscess of the intestines, the 44 year old appellee suffers from systemic problems in the joints, eyes, kidneys and skin. Treatment of the appellee’s disease has included a variety of dulling medications such as Lomotil and Percocet, as well as three surgical interventions which have left the appellee with less than half of her colon. Additionally, wife requires treatment for anemia, recurrent kidney stones and joint maladies. Dr. Chamovitz stated the appellee will continue to suffer from on-going, active Crohn’s disease for the rest of her life and, as such, is unable to sustain gainful employment (Deposition, 11/22/88, pp. 9-22). Appellee testified problems such as frequent bowel activity, lack of energy, arthritis and hand cramping and pain and/or medication prevent her from pursuing any free-lance illustrating jobs such as those she assumed prior to the birth of the parties’ child in 1973, when appellee assumed the sole role of homemaker and mother.

Appellant contends the wife has earning capacity, despite the testimony of her doctor, exhibited by her extensive full-time commitment as president of the Pittsburgh Chapter of a national research fund-raising organization. Husband’s expert, after receiving her medical records and current lifestyle, indicated wife is to some extent capable of working. This is a factual issue and must be weighed by the trial court, and viewing the record in its totality, we are unable to say there was a gross abuse of discretion.

Appellee also testified as to the parties’ lifestyle during their marriage which included a more than comfortable home and various amenities including, inter alia, intercom and alarm systems, heated sidewalks and driveway and hired help. The appellant’s income allowed the parties the luxury of purchasing at will, with cash, clothing and household items as well as nonessentials. Appellant’s contention wife should be restricted to a lifestyle which reflects that which existed at the time of marriage is not one we can accept on the facts of this case. While the restricted lifestyle might have been tolerable, it was below that which was reasonably possible with appellant’s income and position, not out of necessity, but as a matter of choice. The cases which support the position that the standard of living after separation, if possible, should reflect the conditions existing before separation, turn on the available income and lifestyle that income would support. To live during the marriage in a fashion dedicated to reducing expenditures and accumulating wealth, thereby living far below the standard one would expect of persons in that position, cannot be a basis for depressing the living standard of the wife, while permitting the husband to continue to amass large financial assets after separation. The standard of living to which she is entitled is one reasonably supportable by the income and station in life of the parties, irrespective of the frugal inclinations of the husband.

As to the trial court’s alleged failure to consider “(4) an event such as Husband’s death, disability or retirement” (appellant’s brief at p. 10), the following statutes apply and, therefore, it is not necessary for a trial court to specifically consider each of the possibilities in its Order:

23 P.S. § 508. Effect of death of either party
Upon the death of the payee party, the right to receive alimony pursuant to this chapter shall cease. Upon the death of the payor party, the obligation to pay alimony shall cease unless otherwise indicated in an agreement between the parties or an order of court.
23 P.S. § 501. Alimony
(e) Any order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing nature whereupon such order may be modified, suspended, terminated, reinstituted, or a new order made. Any such further order shall apply only to payment accruing subsequent to the petition for the requested relief. Remarriage of the party receiving alimony shall terminate the award of alimony.

See McFadden v. McFadden, 386 Pa.Super. 506, 511-12, 563 A.2d 180, 183 (1989) (“Pennsylvania case law clearly establishes that retirement can serve as a basis for the changed circumstances of a substantial and continuing nature necessary to modify an alimony award.”); Teribery v. Teribery, 357 Pa.Super. 384, 393, 516 A.2d 33, 37-38 (1986) (an alimony award need not reflect all contingencies— “Should either party die or become disabled, for example, a petition for modification can be filed to reflect changed circumstances.”); and Chaney v. Chaney, 343 Pa.Super. 77, 493 A.2d 1382 (1985) (the 1980 Code, we find that the Code does not authorize the award of alimony to extend past the payor’s death, unless the parties have voluntarily agreed otherwise).

Finally, we believe appellant’s contention that the court should have considered the generous child support in conjunction with the alimony Order is unfounded. Our thorough review of the record supports the conclusion this matter was considered. At the time of remand, the alimony/ child support Order was $4,300. The child support was thereafter entered in the amount of $1,500, which is uncontested. Subsequently, the alimony Order was entered in the amount of $4,000. The nature of the alimony and support Orders was substantially changed evidencing different realities and circumstances. The alimony Order became time-limited and subject to changed circumstances, whereas prior to the original remand, it bound the husband until the death of either party or remarriage of the wife or activation of retirement benefits for the wife. Since it was an unallocated Order for wife and child, it could be argued that it would not be subject to substantial reduction, even after the child reached majority. The present Order reflects the fact that the child, within one year, will reach majority, and it appears her college expenses are provided for in the manner of a trust fund. Child support will not thereafter be a component of wife’s income. The wife’s alimony, instead of being for life, will end as of December 1, 1999. By separating alimony and child support and reducing lifetime alimony to about eleven years, the court has adequately considered the interrelationship of the child support Order and alimony. The husband has a clearly ascertainable fixed period and amount of financial obligation whereas before it was unlimited in its duration. It cannot, therefore, be said the court failed to consider in conjunction, the support and alimony and their effect on each other. Taking into consideration that the husband has a large income and earning potential, and that the wife, in sharing in pension proceeds and with proper management of the fund received in equitable distribution, can be expected to be free of financial concerns after the alimony has ended, a comprehensive and complete resolution of the marital rights appears to have been attained.

Spousal support assures a reasonable living allowance to the party requiring support. Laughlin v. Laughlin, 372 Pa.Super. 24, 538 A.2d 927 (1988). The Order of support must be fair and not confiscatory and must allow for the reasonable living expenses of the payor. Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975); Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983). Proper exercise of discretion requires the court to apply the Divorce Code in a compassionate and reasonable manner so that the overriding goal of effectuating justice between the parties may be achieved. O’Callaghan, supra. A careful review of the record reveals the trial court did not abuse its discretion, and that its award of $4,000 per month alimony to the appellee was appropriate under the circumstances.

Order affirmed.

      . Wife received 80 per cent ($414,031) of the marital estate.

      . Appellant was directed by Order dated February 6, 1990 to pay $1,500 per month child support for the parties’ only child who will reach age 18 in 1991. This Order was consented to by appellant and is not subject of this appeal.

      . For example, appellant testified that in 1982 he charged $2,000 for an operation that took 20 minutes to perform, and he was able to perform six such operations between 8:00 a.m. and noon (H.T., 5/24/89, p. 185).


author: CAVANAUGH, Judge: OLSZEWSKI, Judge,

text:
    582 A.2d 1078
    COMMONWEALTH of Pennsylvania, Appellee, v. Ernest EDWARDS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 13, 1990.
    Filed Nov. 13, 1990.
    Reargument Denied Jan. 3, 1990.

      Gilbert B. Abramson, Philadelphia, for appellant.
    Frances G. Gerson, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
   CAVANAUGH, Judge:

Appellant, Ernest Edwards, Jr., was convicted by a jury on eight criminal informations arising out of his activity in the Osage Avenue Redevelopment Project in the City of Philadelphia. Following the denial of post-trial motions, appellant was sentenced to an aggregate of six to twelve years imprisonment and ordered to pay restitution of $137,-000.00.

The factual history of the case is summarized in the trial court’s opinion as follows:

On May 13, 1985, in an effort to remove the radical group known as MOVE from 6221 Osage Avenue, the house was fire bombed, causing a holocaust, killing eleven people and completely destroying sixty-one homes. Immediately thereafter, the City Administrators promised reparations: to rebuild the homes and to return the displaced residents to their homes by the end of the year. To this end, the City, which was to provide the necessary construction monies, enlisted the City of Philadelphia Redevelopment Authority (hereinafter “RDA”) to acquire the title to the site, prepare a prototype home and select a developer and the Urban Local Development Corporation (hereinafter “ULDC”) to disburse the 6.7 million dollars the City had allotted for the Restoration. In late June, the RDA awarded the construction contract to the developer, Edwards and Harper, Inc. (hereinafter “E & H”), a close corporation in which defendant was one of two principals and which had been specifically incorporated to develop the Osage Project, obligating it to procure a completion bond, hire a general contractor and complete the project in accordance with prototypes prepared by the RDA. E & H would be reimbursed on a percentage-of-work-completed basis on a predetermined line item cost breakdown. Soon after the award, defendant Edwards proceeded on his undertaking. He enlisted the cooperation of Ebony Construction Company, Inc., (hereinafter “Ebony”), a New Jersey corporation, of which defendant Harris was the principal proprietor and defendant Edwards was director, as general contractor. Defendant Edwards requested and received start-up money for the Osage Project and commenced work on July 1, 1985, before obtaining the completion bond. When Ebony proved unbondable, defendant formed Premier Construction Company Incorporated (hereinafter “Premier”) to serve as general contractor. Unsuccessful in having Premier bonded, on September 9, Premier relinquished its position as general contractor to G & V General Contractors (hereinafter “G & V”), which was able to procure bonding, relegating Premier to subcontractor status. On February 10, 1986, both of defendant’s companies (E & H and Premier) were defaulted, leaving G & V, the general contractor, to complete the job, encumbered with over one million dollars of unpaid costs.

Trial Court Opinion 7/10/89 at pages 2-4.

The initial discussion will deal with three separate incidents of alleged theft involving appellant. The Commonwealth has attached to each incident three theft-related labels: Theft by Deception (18 Pa.C.S. § 3922), Theft by Failure to Make Required Disposition (18 Pa.C.S. § 3927) and Misapplication of Entrusted Property (18 Pa.C.S. § 4113). Bills Nos. 3390, 3378 and 3388 allege that, after being advanced $202,400.00 for the mobilization of the Project, appellant misappropriated $91,585.41 to his own use. Bills Nos. 3392, 3379 and 3384 allege that appellant double-dipped on transportation expenses in the amount of $4,800.00. Bills Nos. 3391, 3380 and 3383 allege that, after shifting money around from bank account to bank account, appellant mysteriously became $11,300.00 richer. Appellant argues that the evidence presented at trial was insufficient to convict him of these three theft charges and that the verdicts were against the weight of the evidence.

The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Aulisio, 514 Pa. 84, 522 A.2d 1075 (1987). For a new trial to lie on a challenge that the verdict is against the weight of the evidence, the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court. Commonwealth v. Reardon, 374 Pa.Super. 212, 542 A.2d 572 (1988). In addition, where the evidence is legally sufficient, it generally meets the test for weightiness. See Commonwealth v. Robinson, 351 Pa.Super. 309, 505 A.2d 997 (1986).

With these principals in mind we look to the evidence upon which the jury based its conviction of appellant on the various offenses.

THEFT BY DECEPTION

[2] Bill No. 3390 charges Edwards with theft by deception of $91,585.41 in connection with the utilization of the mobilization funds paid to E & H by ULDC. 18 Pa.C.S. § 3922 provides:

(a) Offense defined.—A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
(2) prevents another from acquiring information which would affect his judgement of a transaction; or
(3) fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.
(b) Exception.—The term “deceive” does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed.

After having been selected as the developer on the Osage Project, appellant requested start-up money before the formal signing of the contracts and before the actual construction commenced. ULDC had earmarked one million dollars for the mobilization of the project and Joseph Gaudit, ULDC’s on-site representative, discussed with appellant the items that would be eligible for payment out of that fund. On June 26, 1985, appellant Edwards made his first formal request for $340,000, an amount which was refused because it contained construction costs and construction had not yet begun. A second request for $212,400.00 was also rejected because it contained an improper item for developer’s fees, an expense not allowable at that time. After appellant’s third application for funds, ULDC paid E & H $202,400.00 based on the following line items: project personnel, trailer rental, office furniture, equipment and supplies, telephone and utility deposits, layout and survey, insurance, labor, security and fencing, community liaison, equipment rental and legal, architectural and engineering fees. A promissory note was signed by the principals of E & H, appellant Edwards and Beverly Harper. At appellant’s suggestion that some of these items were costs incurred by the general contractor, $108,400.00 was transferred to Ebony’s account which had been specifically opened for receiving mobilization monies. Withdrawals from this account required appellant’s signature. On the very same day of the transfer, a rash of checks were drawn on this Ebony account: $14,-000.00 to appellant Edwards, $2,250.00 to cash (endorsed by appellant), $15,000.00 to Ebony which was deposited in another Ebony account, and approximately $80,000.00 to a host of suppliers for goods which had been provided to Ebony long before the Osage disaster.

Appellant argues that this conduct does not constitute theft by deception. He contends that he made no promise nor stated any intent to use the disbursed money specifically for the purposes outlined in his application. Appellant considered his application to be nothing more than a partial list of categories and estimates which were not binding on E & H. In his view, once ULDC disbursed the money to E & H, it became the property of E & H and could be used in any way the corporation saw fit. The $202,400.00 should be seen as money advanced to “finance” E & H and Ebony, and paying off old creditors and taking some pocket money were forms of “financing.”

The evidence showed that E & H was a redevelopment corporation created for the sole purpose of enabling the City of Philadelphia to rebuild Osage Avenue. ULDC agreed to front the money for the mobilization of the Project in order to allow E & H to begin work immediately, without having to procure private financing. It was reasonable for ULDC, relying on appellant’s submitted application, to assume that appellant would use the money in accordance with the terms spelled out in his application. Appellant was aware of the importance of the application because his first two attempts to obtain funding were rejected because of inaccurate proposals.

ULDC’s representative, Joseph Gaudit, testified that no money would have been disbursed if appellant had alerted ULDC that he was going to use the mobilization money to pay old Ebony debts. As it turned out, not one of the checks drawn against the mobilization money deposited in the Ebony account was in payment for expenses related to the mobilization of the Project. We conclude that there was sufficient evidence for the jury to find that appellant obtained the mobilization funds by intentionally creating a false impression which deceived ULDC into believing that the disbursed money would be used for mobilization when, in fact, he intended to use the money to pay old Ebony debts.

Appellant was convicted, in Bill No. 3392, of theft by deception of $4,800.00 worth of transportation expenses. The evidence showed that Beverly Harper agreed that E & H would pay appellant transportation expenses of $800.00 for the monthly payments on a 1985 Jaguar that Edwards was leasing for his use. Appellant received and cashed four E & H checks totaling $4,800.00, purporting to be transportation expense reimbursements. However, payments on the lease of the Jaguar were actually being made from checks drawn on Ebony’s account. Appellant admitted receiving the checks and not spending the money on transportation expenses.

Appellant argues that, since the information lists ULDC as the owner of the stolen property, he cannot be convicted because he was paid the $4,800.00 by E & H. Appellant ignores the fact that E & H obtained the money from ULDC through appellant’s deception. Since the money which E & H controlled had been fraudulently obtained from ULDC, every time appellant converted that money to his own use he was effecting an unlawful taking. In short, appellant joined his unlawful taking of the funds with his ongoing deception of ULDC and thereby committed theft by deception.

Appellant was convicted, in Bill No. 3391, of theft by deception in connection with $11,300.00 which was paid to him by Premier. The evidence showed that, at appellant’s request, E & H loaned him $175,000.00. Appellant then placed this money in Premier’s account to create the illusion that Premier was liquid. The following day $150,000.00 was repaid to E & H, with the remaining $25,000.00 remaining in Premier’s account. From this remaining sum, Premier paid out $11,300.00 to appellant.

Appellant argues that this evidence is insufficient to convict him of theft by deception. He contends that the money belonged to Premier and that there was no evidence presented to show that he obtained it from Premier through fraudulent means. Appellant ignores the fact that he was Premier and that he obtained the $175,000.00 from E & H by misrepresenting to Beverly Harper that he would immediately repay the loan on the following day, knowing full well that he had no such intention. Appellant’s deception, in fact, was an ongoing scheme to unlawfully pocket ULDC’s money. Changing checking accounts did not launder the illegally gotten funds.

Appellant also renews his argument that the money in question belonged to Premier and it was free to use it in any way it saw fit. He erroneously contends that ULDC no longer had any interest in the money once it was given to E & H. Appellant is incorrect. The money appellant received from Premier was money Premier obtained from E & H which in turn, was money E & H had received from ULDC, an acquisition made possible by appellant’s initial deception. Premier’s payment of this ill-gotten money to appellant is only another link in the chain of deception and completes another unlawful taking. The evidence showed that E & H, Ebony and Premier were corporations which appellant controlled and used to illegally pocket ULDC’s money. It was sufficient to support the conviction of theft by deception.

THEFT BY FAILURE TO MAKE REQUIRED DISPOSITION

Appellant next argues that the evidence was insufficient in regard to his convictions of theft by failure to make required dispositions. We are still considering the three incidents discussed above, but analyzing them in relation to another theft statute. This particular statute reads as follows:

§ 3927. Theft by Failure to Make Required Disposition of Funds Received.
(a) Offense defined.—A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the failure of the actor to make the required payment or disposition.

In Commonwealth v. Crafton, 240 Pa.Super. 12, 16, 367 A.2d 1092, 1094 (1976), this court outlined the four elements of the crime of theft by failure to make required disposition:

1. the obtaining of property of another;
2. subject to an agreement of known legal obligation upon the recipient to make specified payments or other disposition thereof;
3. intentional dealing with the property obtained as the defendant’s own; and
4. failure to make the required disposition of the property-

The Commonwealth contends that appellant obtained the property of ULDC ($202,400.00), subject to an agreement, (as expressed in his application) to use the money for the mobilization of the Osage Avenue Redevelopment Project. He then converted portions of the money to his own use and thereby failed to make the required disposition of the property.

Appellant argues that the $202,400.00 was an advance payment on a construction contract with title and ownership of the money passing to E & H. Therefore, he was not dealing with the property of ULDC. In addition, he did not receive the money subject to any agreement to make specified payments. His application request for funds was only a non-binding list of construction categories and estimates. To bolster his position, appellant cites Commonwealth v. Austin, 258 Pa.Super. 461, 393 A.2d 36 (1978), wherein this court reversed a conviction for theft by failure to make lawful disposition of funds received. We find Austin clearly distinguishable.

In the Austin case, a contractor received advance money for the purchase of materials on a construction contract. Austin performed for two months when he realized that he had under-estimated the job. Having run out of money, he stopped work. Although some of the advance money was not spent on materials, the evidence showed that all the money was spent in a manner which could be construed to have been necessary for the completion of the project.

Austin’s conviction was reversed because (1) he had not fraudulently obtained the advance money; (2) the construction contract was not an agreement which compelled Austin to use the money only for the purchase of materials; (3) the money was otherwise spent in furtherance of the proposed project; and (4) the failure to complete the job was not due to Austin’s converting the money to his personal use.

In the instant case, the evidence showed that Ernest Edwards obtained the $202,400.00 from ULDC by convincing the agency that he would use the money to mobilize the Osage Project. Appellant submitted several applications for mobilization funds until ULDC finally agreed that the specifications proposed by appellant satisfied its requirements for the loan. Thus, appellant obtained the property of another subject to an agreement that it would be used in the mobilization effort. The money appellant received was property in which ULDC had an interest which appellant was not privileged to infringe. This loan agreement encompassed more than a mere promise by appellant to repay the money, as may be the case in a creditor-debtor relationship. In fact it is appellant himself who provides a correct interpretation of the agreement: “To the contrary, the only agreement or known legal obligation concerning the disposition of the mobilization loan proceeds, if any, supported by the evidence, is an agreement to apply the proceeds to the payment of all necessary mobilization expenses.” (Emphasis added). Appellant’s brief at page 23.

Therefore, when appellant intentionally converted some of the proceeds of the loan to his own use by paying off old debts (Bill No. 3378), double dipping on the transportation expenses (Bill No. 3398), and pocketing the money from Premier (Bill No. 3380), he committed a theft by failing to make the legally required disposition of the funds.

MISAPPLICATION OF ENTRUSTED PROPERTY

Appellant was also convicted on the same evidence of the misapplication of entrusted property with respect to mobilization funds ($91,585.41), the falsified transportation expenses ($4,800.00) and the Premier capitalization scheme ($11,300.00). Appellant’s contention that the evidence was insufficient to support these convictions is without merit. The statute in question reads as follows:

§ 4113. Misapplication of Entrusted Property and Property of Government or Financial Institutions,
(a) Offense defined.—A person commits an offense if he applies or disposes of property that has been entrusted to him as a fiduciary, or property of the government or of a financial institution, in a manner which he knows is unlawful and involves substantial risk of loss or detriment to the owner of the property or to a person for whose benefit the property was entrusted.

The statute applies to misappropriation of three separate types of property: property belonging to the government, property belonging to a financial institution, and property entrusted to a fiduciary. An individual who misapplies any of the property as set forth above violates the statute. This construction gives effect to all of the phrases in § 4113(a).

Appellant was a fiduciary for purposes of statute. He had received funds for a stipulated purpose and was obligated to apply the money to that purpose. A fiduciary is defined as: “An executor, administrator, guardian, committee, receiver, trustee, assignee for the benefit of creditors, and any other person acting in any similar capacity.” 1 Pa.C.S.A. § 1991. Appellant had been advanced the monies for the specific purpose of mobilizing the project, and he was a fiduciary for purposes of § 4113. E & H only received the advance after the third application, itemizing how the funds would be spent, was approved, and a duty of faithfully carrying out this obligation was imposed.

REMAINING COUNTS

Appellant was convicted of perjury (No. 2786) and false swearing (Bill No. 0190) in connection with the testimony which he gave to the County Investigating Grand Jury on October 18, 1985. This Grand Jury had been impaneled to investigate allegations of bribery, theft and fraud in connection with the Osage Project. The factual basis for the charges is as follows:

Louis Dolente, III, partner in Dolente & Sons, one of the subcontractors engaged in sewer construction work, provides the testimony that resulted in defendant’s conviction on one of the numerous counts of theft. He testified that he was approached by Edwards to submit a bid on storm sewer work not originally included in the contract. Shortly thereafter, when he advised Edwards he could complete the job for $19,000.00, Edwards informed him that the other bids were in the area of $28,000.00 and if Dolente put in such a bid, the two of them could split the $9,000.00 difference. N.T., 5/6/88, pp. 63-70. Simultaneously with his completion of the work, Dolente submitted his bid in the amount of $28,-464.00 to Edwards. G & V paid Dolente & Sons a total of $27,040.00 on December 3, 1985. To cover up the misdeed, on December 10, Edwards presented to Dolente a letter in lieu of an invoice, requesting $4,500.00 in payment for masonry work ostensibly performed at Dolente & Sons garage. Two days later, Dolente & Sons issued a check in the amount of $3,820.40 to Edwards. Defendant admitted receiving the check. Both Dolente and his father testified that they neither contracted with Premier for such work nor was any such work done.

Trial Court opinion 7/10/89 at page 13. Based on this transaction, appellant was convicted of theft, a conviction which he does not challenge. However, he does argue that the evidence does not support his perjury and false swearing convictions arising from the testimony he gave to the Grand Jury regarding this kick-back scheme.

The Information charging perjury and false statements alleges that the statement “work was performed at Dolente’s garage or place of business” was false. The transcript of appellant’s Grand Jury testimony produced at trial was, in pertinent part, as follows:

Question: Now, the money that was paid to you by Dolente and the Union Hall District Council, those monies were paid directly to yourself; is that correct?
Answer: Yes, Ma’am.
Question: As far as Dolente's job was concerned, do you know what the job was exactly?
Answer: No. And I don’t know what was done at the union hall. I don’t know only except that a wall was built.

N.T., 5-6-88, pages 59-60.

Question: Now, there is another area that has been revealed or at least other jobs where some union people worked on, one being [Dolente’s] garage. Are you familiar with that?
Answer: I don’t specifically know what was done but I know some people were over there to do some work.
s}¡ * # ^ * *
Question: Under whose direction did they go there?
Answer: You mean other than me telling somebody to do whatever needed to have been done?
Question: Who directed them to go?
Answer: I told you, either Hank or Ray or Manny. You know, Lou needed some work done and I did the same thing for Sam Staten. He needed some work done at the union where somebody was breaking into the labor hall and the men went down there and built a wall and both was [sic] done by Premier Construction Company.

Id,., at pages 55-56.

Appellant argues that there was a material and fatal variance between the allegations of perjury and false swearing contained in the Informations and the proof at trial. Although the Informations need not set forth the exact language alleged to be perjurious, it must sufficiently apprise appellant of the charges he must answer. Commonwealth v. Lafferty, 276 Pa.Super. 400, 419 A.2d 518 (1980). Appellant testified before the Grand Jury that Lou Dolente needed some work done and that it was done by Premier employees. The evidence presented at trial showed that appellant knew that no work was performed for Dolente and that the whole thing was a kick-back scheme. The jury had sufficient evidence to convict appellant of lying to the Grand Jury.

Appellant Edwards also was convicted of Theft By Unlawful Taking, 18 Pa.C.S. § 3921, for removing furniture and equipment valued at $23,383,65 from the construction site immediately before the RDA declared E & H to be in default. Appellant renews his argument that the Commonwealth did not prove that the items were the property of another. He claims that the only interest ULDC had in the equipment was that of a security interest and he quotes 18 Pa.C.S. § 3901:

Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.

Appellant then concludes that since the equipment was not the property of another, as required by § 3922, the evidence was insufficient for conviction. We disagree.

The Commonwealth introduced evidence that E & H, through its corporate officer, Ernest Edwards, executed a leasehold mortgage pledging as security its interest in the leasehold Osage property and all the buildings, materials, supplies, tools, equipment and construction facilities and appliances located thereon. In addition to this standard leasehold mortgage, E & H also transferred all of its right, title and interest in, to and under the leasehold, the following mortgaged property: all building materials, tools, fixtures, appliances, machinery, furniture and equipment of any nature whatsoever owned by the mortgager now or at any time hereafter installed in, attached to or situated in, upon or about the real estate. About the only remaining interest that appellant had in the equipment involved in this case was his right to use it on the project. Therefore, when appellant removed the equipment and converted it to his own use, he unlawfully took the property which he had contractually acknowledged belonged to ULDC.

Appellant was also convicted of attempted theft by deception (18 Pa.C.S. § 3922) of a performance bond. Using knowingly false financial statements of Premier’s corporate worth, appellant applied for a $67,000.00 performance bond from two insurance companies. A performance bond was not issued.

“Property” is defined under 18 Pa.C.S. § 3901 as:

Anything of value, including real estate, tangible and intangible personal property, contract rights____

A performance bond does comport with this property definition because it represents an insurer’s promise to pay. “An insurer’s promise to pay is intangible personal property, the value of which, %.e., the insurer’s credit and reputation, defendant attempted to steal.” Appellee’s Brief at page 41.

Although a performance bond was not issued by an insurance company, appellant made complex arrangements to deceive the insurance company into issuing a performance bond.

Ebony, which Harris controlled, and which appellant had designated as the general contractor, was unable to secure performance bonds. On August 7, faced with the prospect of procuring a bondable general contractor or being removed himself, appellant established Premier, of which he was the sole proprietor, and set out to qualify it for bonding. Forewarned by Mr. Levy of Levy Redcross and Co., an accounting firm, that any bonding company would require liquidity in the insured, (N.T. 5/4/88, pp. 103-105) he arranged the deceptive illusion of having Premier appear financially sound. Knowing that there were insufficient funds in the E & H account, he convinced his silent partner, Beverly Harper, to draw a check in the sum of $175,000.00 payable to appellant. On August 14, he deposited it into Premier’s account. (N.T. 5/4/88, pp. 110-114). He then prepared a financial statement, and had his accountant, after confirming the deposit, certify it. After having had the financial statement certified, the next day he withdrew $150,000.00 from Premier’s account and returned it to E & H’s account. (Id., pp. 142-144). This was the financial status of Premier, when on August 16, appellant sent the financial statement, along with his application for bonding to Reliance Insurance Company, (Id., p. 66) and to CIGNA Insurance Company. Both companies refused to bond Premier; at no time were they informed of the true financial condition of Premier. (N.T. 5/3/88, pp. 105, 106, 110, 116, 117). From the $25,000.00 left on deposit with Premier, appellant made one cash withdrawal and drew ten checks to himself from August 15 to September 26 for a total of $11,300.00. (N.T. 5/4/88, pp. 161-166). Ms. Harper testified that she had expected that the full amount of $175,-000.00 would have been returned to E & H’s account. (N.T. 5/4/88, pp. 112-115).

An attempt to commit a specific crime exists where a person performs an act which constitutes a substantial step towards the commission of that crime. 18 Pa.C.S. § 901. The evidence sustains the conviction of attempted theft by deception of a performance bond.

Appellant was convicted in Bill No. 3375 of Deceptive Business Practices. This Bill contained seven counts, each count restating one of the seven subsections of the statute. The statute reads as follows:

§ 4107. Deceptive Business Practices.
(а) Offense defined.—A person commits a misdemean- or of the second degree if, in the course of business, he:
(1) uses or possesses for use a false weight or measure, or any other device for falsely determining or recording any quality of quantity;
(2) sells, offers or exposes for sale, or delivers less than the represented quantity of any commodity or service;
(3) takes or attempts to take more than the represented quantity of any commodity or service as a buyer he furnishes the weight to measure;
(4) sells, offers or exposes for sale adulterated or mislabeled commodities;
(5) makes a false or misleading statement in any advertisement addressed to the public or to a substantial segment thereof for the purpose of promoting the purchase or sale of property or services;
(б) makes a false or misleading written statement for the purpose of obtaining property or credit; or
(7) makes a false or misleading written statement for the purpose of promoting the sale of securities, or omits information required by law to be disclosed in written documents relating to securities.

There is no indication what action of appellant violated which subsection of the statute. The. Commonwealth and the trial court assert that it was § 4107(a)(6), that was violated: a person commits a misdemeanor of the second degree if, in the course of business, he makes a false or misleading statement for the purpose of obtaining property or credit. (Emphasis added). The particular act of appellant which constituted this violation was the attempt at procuring a performance bond.

Appellant argues that this Bill was defective in that it did not provide him with the barest minimum notice necessary to defend against the seven counts. However, he contends that, even if § 4107(a)(6) is to be the controlling subsection, a performance bond does not qualify as either “property” or “credit”. We disagree. A performance bond is a type of insurance which appellant was required to purchase in order for E & H to serve as the general contractor on the project. A performance bond was obviously a valued property which appellant attempted to buy. § 4107(a)(6) states that a person commits a misdemeanor if he attempts to obtain property or credit by making false or misleading statements. Whether or not that person acquires the desired property or credit is of no consequence; the violation of § 4107(a)(6) is already committed. This statute is similar to 40 Pa.S. § 474, mentioned above, which makes it a crime to attempt to obtain insurance by fraudulent application.

In Bills Nos. 3370 and 3395, appellant was convicted of Theft by Unlawful Taking (18 Pa.C.S. § 3921) and Theft by Deception (18 Pa.C.S. § 3922) in connection with his receiving $6,341.93 for building a wall for a union hall. Appellant used Premier employees, who were being paid by E & H to work on the project, to do outside work for him on a private contract. He made no reimbursement to either Premier or E & H for the use of the laborers and simply-pocketed the proceeds from the outside work. Thus, E & H was using ULDC’s money to pay for labor on a non-project related job.

Appellant argues that once ULDC disbursed this money to E & H, and E & H paid it out to Premier, Premier was free to use it to pay its employees and direct them to work in any manner it deemed fit. Appellant again reiterates his position that the loan monies could not be the subject of a theft. We have already held that when appellant converted the funds to his own use—regardless of the manner of conversion—he was guilty of theft. Here, he misappropriated Premier’s labor and deceived E & H into paying salaries for non-Project work, all the while misusing ULDC’s money.

Appellant next argues that trial court erred by prohibiting him from presenting evidence that he took over $23,000.00 worth of equipment from the job site under a claim of right. This issue was not raised by appellant in the lower court and cannot be raised for the first time on appeal. See Pa.R.A.P. 302.

INEFFECTIVENESS OF COUNSEL

Represented by new counsel, appellant alleges several instances of trial counsel’s ineffectiveness. In considering the ineffectiveness claim, we do so under the following standard:

[First,] whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. [Second,] whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. [Third,] whether counsel’s improper course of conduct worked to his prejudice, ie., had an adverse effect upon the outcome of the proceedings.

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). (citations omitted). Moreover, claims of ineffectiveness will not be considered in a vacuum; appellant must allege sufficient facts upon which a reviewing court can assess counsel’s ineffectiveness. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

As to trial counsel's failure to submit any points for charge, appellant basically contends that trial counsel should have requested the judge to instruct the jury that the evidence was insufficient, as a matter of law, to convict appellant. Rather than “points for charge”, this argument speaks to a motion for a directed verdict of acquittal. As we have separately found the evidence for conviction to be sufficient, we cannot deem counsel ineffective for failing to make a baseless motion.

Appellant argues the trial counsel was ineffective for failing to present evidence of standard custom and practice in the construction industry. He contends that this would have shown that the line-item estimated expenses, listed in his application, did not constitute an agreement or legal obligation which required him to spend the money in a particular way. Appellant, with many years of experience in the construction industry, testified that what he did with the advanced money was common practice in the industry. He contends that trial counsel should have produced witnesses willing to testify that the practice of pocketing advance money rather than spending it on the job was common in the construction industry. However, as discussed previously, the application between appellant and ULDC by its very terms defined and restricted the uses for the Project money. Therefore, counsel’s failure to call witnesses regarding the supposed common practice in the industry cannot constitute ineffectiveness in a case where the alleged common practice did not apply.

Appellant argues that trial counsel was ineffective for failing to . request the charge that character evidence alone may be sufficient to raise a reasonable doubt, and thus justify an acquittal of the charges. Although trial counsel may not have requested it, the trial judge so instructed the jury (N.T., 5/10/89 at pages 22-23) and thus this claim is without merit.

Appellant argues that trial counsel was ineffective for not objecting to the prosecutor’s references to the advanced funds as “taxpayer’s money.” He contends that this label is false in that ULDC was a private corporation and, therefore, the money did not belong to the taxpayers. He further argues that such a reference to the money encouraged the jury to decide the case on their own economic self-interest rather than on the merits. It is clear that the evidence showed that the federal government and the City of Philadelphia were the sources of the construction funds. Although referring to the funds as “taxpayers’ money” may have been technically incorrect, public funds were clearly involved. However, we conclude that the outcome would have been no different if the funds had been called “ULDC’s money.” We find that appellant was not prejudiced by this reference.

Appellant also argues that trial counsel was ineffective for failing to withdraw from the case. Appellant contends that trial counsel was involved in a series of transactions underlying the criminal charges, including negotiating the relevant contracts, advising him that he had a right to the equipment at the construction site, and actually carrying some of the equipment away. However, trial counsel was not the only attorney who represented appellant during the contract negotiations and who advised him on the decision to remove the equipment from the construction site. Rotan Lee, Esq. was co-counsel to appellant regarding the Osage Project and he did testify on behalf of appellant. To what extent trial counsel could have presented favorable testimony in addition to that of Attorney Lee is not specified by appellant and we cannot base a finding of ineffectiveness on bare allegations alone.

Appellant also contends that trial counsel’s fear for his own criminal liability colored the advocacy which appellant received during trial. Appellant, however, offers no basis for this reckless allegation. We conclude that trial counsel had no reason to withdraw from this case.

Appellant’s final argument that the sentences imposed should be vacated due to the unreasonable applications of the Sentencing Guidelines and the unreasonable impositions of sentences outside the Guidelines. This issue need not be discussed because it is waived. Appellant failed to provide a separate, concise statement of reasons for allowance of appeal, raising a substantial question as to the appropriateness of the sentence imposed under the Sentencing Code as a whole. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

Judgment of sentence affirmed.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

I concur with Judge Cavanaugh’s learned and comprehensive disposition of the issues raised by appellant. I write separately in order to further clarify the proper disposition of the count of misapplication of entrusted funds and the count of attempted theft of the performance bond.

It is argued that 18 Pa.C.S.A. § 4113 only applies to situations where the misapplication of funds violates a fiduciary or trust relationship. This construction of the statute would make the clause, “or property of the government or of a financial institution,” superfluous. If the key to the statute is the fiduciary status of the offender, then property of the government or of a financial institution which is entrusted to a fiduciary is clearly a subset of, and contained within, “property that has been entrusted to him as a fiduciary.” 18 Pa.C.S.A. § 4113(a). It is a fundamental principle of statutory construction that all elements of a statute are to be given meaning; to adopt the construction that the statute only applies to fiduciaries makes the rest of the subsection unnecessary. To prevent this, the statute must apply to three separate types of property: government property, financial institution property, as well as property entrusted to a fiduciary. An individual who misapplies any of these three types of property violates the statute.

It is also argued that affirming the conviction for violation of § 4113 herein is akin to convicting a person for the theft of a public assistance check. No one would dispute that once an individual properly receives a public assistance check, he is free to exercise his own judgment as to how to best spend the money to achieve its beneficial purpose. Such was not the case here; the majority correctly notes that Edwards was not free to spend the advance monies for items not listed in E & H’s application to ULDC. I submit the restrictions placed upon the advance would be more akin to a person using food stamps to purchase inappropriate items. Edwards could purchase items which fit the description in his application but could not treat the funds as his own. Appellant herein received these monies from the government as part of an agreement to apply them to the listed mobilization costs. When he chose to divert them to his own purposes, he violated his agreement with the ULDC and so misapplied the funds in violation of 18 Pa.C. S.A. § 4113.

I also wish to clarify Edwards’ conviction for attempted theft of the performance bond. The bond is the insurer’s promise to pay. “It is intangible personal property, the value of which, i.e., the insurer’s credit and reputation, the defendant attempted to steal.” (Appellee’s Brief at 41). It is argued that because Edwards was not successful in securing the bond he did not make a substantial step toward theft of the value of the bond by deception. I cannot agree.

The majority recognizes that the value of the promise is the insurer’s credit and reputation. It is that value, not the paper bond, which Edwards attempted to secure by deception. While it is technically correct to state that no performance bond ever existed, its value, the credit and reputation, did exist. The mere fact that this property is intangible does not prevent an attempted theft thereof.

Under the reasoning advanced by appellant, an attempt at theft by deception, where payment by the victim was to be made by check, would not violate the statute as long as the victim did not write out the check. A check is a promise to pay, backed by the drawer’s credit. The fact that the check is not drawn does not negate the attempt to steal the credit which backs the check. So too, the fact that the bond was not issued does not negate Edwards’ attempt to steal the credit and reputation of the insurer which would have backed the bond.

      . Ernest Edwards was tried along with William Harris, who was also convicted on several of the charges lodged against him. Harris’ conviction was affirmed by this court at No. 3410 Philadelphia 1988 on April 10, 1990.

      . We note that it has been questioned whether appellate courts in this Commonwealth are still able to review the verdict to determine if it is against the weight of the evidence. See Commonwealth v. Nelson, 514 Pa. 262, 271-72 n. 3, 523 A.2d 728, 733 n. 3 (1987); see also, Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989). In light of the fact that this verdict is supportable under the traditional standard, which states that a verdict cannot stand if it is so contrary to the weight of the evidence as to shock one’s sense of justice, Commonwealth v. Gamber, 352 Pa.Super. 36, 45, 506 A.2d 1324, 1329 (1986), we need not rule specifically on whether this claim is cognizable.. However, we note our recent decision in Commonwealth v. Jenkins, 578 A.2d 960, (1990), that though the practice is limited, a properly raised weight of the evidence issue shall not be denied this court’s review.

      . Payment of mobilization costs in advance is not the usual procedure. Normally on a construction project, mobilization occurs and the cost is reimbursed to the contractor.

      . 18 Pa.C.S. § 3901 Definitions. "Property of another” includes property in which any person other than the actor has an interest which the actor is not privileged to infringe____

      . The Commonwealth gives no explanation why appellant was charged with the other six counts in the Bill.