author: WIEAND, Judge: MONTEMURO, Judge, BROSKY, Judge

text:
    557 A.2d 30
    COMMONWEALTH of Pennsylvania v. Michael WILLIAMS, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1988.
    Decided April 14, 1989.

      Shawn C. Wagner, Assistant District Attorney, Carlisle, for Com., appellant.
    Frederick I. Huganir, Carlisle, for appellee.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, McEWEN, DEL SOLE, MONTEMURO, BECK and TAMILIA, JJ.
   WIEAND, Judge:

The Commonwealth has appealed from an order of the trial court which granted a petition for habeas corpus and dismissed a criminal information charging Michael Williams with violating the provisions of 18 Pa.C.S. § 5123(a) which prohibit contraband to confined persons.

Williams was found in possession of a small amount of marijuana when he entered the State Correctional Institution at Camp Hill. The Commonwealth has conceded that Williams did not intend to deliver the same or allow it to come into the possession of an inmate at the institution. The legal issue in this appeal is whether these facts constitute a violation of 18 Pa.C.S. § 5123(a). This section of the Crimes Code provides:

A person commits a misdemeanor of the first degree if he sells, gives, or furnishes to any convict in a prison, or inmate in a mental hospital, or gives away in, or brings into any prison, mental hospital, or any building appurtenant thereto, or on the land granted to or owned or leased by the Commonwealth or county for the use and benefit of the prisoners or inmates, or puts in any place where it may be secured by a convict of a prison, inmate of a mental hospital, or employe thereof, any kind of spirituous or fermented liquor, drug, medicine, poison, opium, morphine, or other kind of narcotics (except the ordinary hospital supply of the prison or mental hospital) without a written permit signed by the physician of such institution, specifying the quantity and quality of the liquor or narcotic which may be furnished to any convict, inmate, or employe in the prison or mental hospital, the name of the prisoner, inmate or employe for whom, and the time when the same may be furnished, which permit shall be delivered to and kept by the warden or superintendent of the prison or mental hospital.

The Commonwealth argues that the offense is complete when a person brings into a prison any of the enumerated substances and that no further intent or mens rea is required. It contends that the words “for the use and benefit of the prisoners or inmates” were intended to modify and refer to land owned or leased by the Commonwealth or county. According to this interpretation, the words “for the use and benefit of the prisoners or inmates” were not intended by the legislature to establish an element of the offense. Credence is provided to this argument by the grammatical location of the phrase and the absence of a comma following the word “county.”

Appellee argues, on the other hand, that when the statutory provision is read in its entirety and interpreted in light of the evil intended to be prevented, the words “for the use and benefit of the prisoners or inmates” must be read in conjunction with the proscription against bringing contraband into prisons. We are persuaded by this argument.

In the first place, both the majority of this Court and those members who are in dissent are in agreement that the evil which the legislature intended to prevent was allowing contraband to come into the possession of prisoners or inmates. The object to be attained by the legislature is an important consideration in interpreting the statute. See: 1 Pa.C.S. § 1921(c)(4); Commonwealth v. Westcott, 362 Pa.Super. 176, 192, 523 A.2d 1140, 1148 (1987); Royal Indemnity Co. v. Adams, 309 Pa.Super. 233, 244, 455 A.2d 135, 141 (1983). In this respect it is also to be observed that the statutory proscription has been labeled “contraband to confined persons prohibited.” This heading may also be considered in construing the statute. See: 1 Pa.C.S. § 1924; Fedor v. Borough of Dormont, 487 Pa. 249, 254 n. 3, 409 A.2d 334, 337 n. 3 (1979); Fairmount Insurance Co. v. Commonwealth, Insurance Department, 85 Pa.Cmwlth. 131, 136 n. 2, 481 A.2d 696, 698 n. 2 (1984).

A reading of the statutory provision in its entirety is persuasive that the conduct intended to be prohibited was the bringing of enumerated substances into a prison for the use and benefit of prisoners or inmates. When creating an exception to the general proscription, the legislature spoke clearly of written permits specifying the nature of the substance and the quantity thereof to be “furnished” to the prisoner or inmate.

It does not appear that the legislature intended to make it criminal for a prison visitor to have in his possession either prescription drugs or medicine intended for his or her own personal use. Indeed, to interpret the statutory language in such a manner would be to violate the admonition that the legislature should not be deemed to intend a result that is absurd or unreasonable. See: 1 Pa.C.S. § 1922(1); Lehigh Valley Co-op Farmers v. Commonwealth, Bureau of Employment Security, 498 Pa. 521, 526, 447 A.2d 948, 950 (1982); Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983).

After all the rules of statutory construction have been examined, however, the rule which is most persuasive is the mandate to construe strictly those statutory provisions which are penal in nature. See: 1 Pa.C.S. § 1928(b)(1); Commonwealth v. Driscoll, 485 Pa. 99, 107, 401 A.2d 312, 316 (1979) (plurality opinion); Commonwealth v. Darush, 256 Pa.Super. 344, 348, 389 A.2d 1156, 1158 (1978). “Strict construction is necessary to avoid the injustice of convicting a person without clear notice to him that contemplated conduct is unlawful.” Commonwealth v. Mlinarich, 345 Pa.Super. 269, 273, 498 A.2d 395, 397 (1985), aff'd by an equally divided court, 518 Pa. 247, 542 A.2d 1335 (1988). See: Commonwealth v. Broughton, 257 Pa.Super. 369, 377, 390 A.2d 1282, 1286 (1978). “It also serves to prevent courts from creating offenses which the legislature did not intend to create.” Commonwealth v. Mlinarich, supra. See: Commonwealth v. Cluck, 252 Pa.Super. 228, 238, 381 A.2d 472, 477 (1977).

We hold, therefore, that in order to prove a violation of 18 Pa.C.S. § 5123(a), the Commonwealth must prove that the accused brought contraband into a prison or mental hospital intending it for the use and benefit of prisoners or inmates. In this case, the Commonwealth has conceded that the marijuana found on appellee’s person when he entered the prison was not destined for a prisoner or inmate. Under these circumstances, the offense defined at 18 Pa.C.S. § 5123(a) was not committed, and the trial court properly dismissed the information.

Order affirmed.

BROSKY, J., files a dissenting opinion in which CIRILLO, President Judge, and ROWLEY and MONTEMURO, JJ. join.

MONTEMURO, J., files a separate dissenting statement.

MONTEMURO, Judge,

dissenting:

I am in total agreement with the Dissent’s conclusion that intent is not necessary for violation of § 5123, and write separately only to add my own reasoning to that of Judge Brosky.

As the majority points out, the express purpose of the statute is to prevent the introduction of prohibited substances into areas where those to whom such thing's are forbidden can acquire them. It is then concluded that the legislatively disapproved conduct is the intentional introduction of such substances for the purpose of providing them to prisoners or inmates. However, I believe that because the objective is prevention, whether importation has occurred through deliberation or inadvertence is irrelevant; under the majority’s logic, almost any behavior is allowable as long as the thoughts are pure. This seems contrary to the thrust of the statute.

Further, it is difficult to understand, since statutes are not to be given absurd interpretation, how substances can be said to “benefit” those for whom they have been made illegal. The majority states, with accuracy, that the legislature does not appear to make criminal the possession by a visitor of his own prescription drugs or medicines. I believe a practical distinction can be made by prison officials between the possession of these legitimate substances, and the possession of those which, like the marijuana at issue here, are illegal per se, or have no reasonable purpose in a prison setting. Like the Dissent, I would reverse and remand.

BROSKY, Judge

dissenting:

I dissent.

Our review of this case has been aided by the Commonwealth’s concession that appellee did not intend that the marijuana come into the possession of an inmate. Therefore, we are faced with a purely legal question of whether such intent is necessary for a conviction of the offense of contraband or whether simply possession of the contraband in such an institution is sufficient. I believe intent is irrelevant under the statutory language. The text of the statutory provision in question reads:

§ 5123. Contraband.
(a) Contraband to confined persons prohibited. — A person commits a misdemeanor of the first degree if he sells, gives or furnishes to any convict in a prison, or inmate in a mental hospital or gives away in, or brings into any prison, mental hospital, or any building appurtenant thereto, or on the land granted to or owned or leased by the Commonwealth or county for the use and benefit of the prisoners or inmates, or puts in any place where it may be secured by a convict of a prison, inmate of a mental hospital, or employee thereof, any kind of spirituous or fermented liquor, drug, medicine, poison, opium, morphine, or other kind of narcotics, without a written permit signed by the physician of such institution, specifying the quantity and quality of the liquor or narcotic which may be furnished to any convict, inmate, or employee in the prison or mental hospital, the name of the prisoner, inmate, or employee for whom, and the time when the same may be furnished, which permit shall be delivered to and kept by the warden or superintendent of the prison or mental hospital.

(Emphasis added).

The Commonwealth argues that the language “or brings into any prison” encompasses the conduct of appellee and does not require an intent to transfer the contraband to an inmate. The trial court found unclear whether the language “for the use and benefit of the prisoners” was meant to be tied to the phrase “or brings into any prison” or to the language “land granted to or owned or leased by the Commonwealth or county”. Considering the legal premise that penal statutes are to be strictly construed and ambiguities resolved in favor of criminal defendants, Commonwealth v. Darush, 256 Pa.Super. 344, 389 A.2d 1156 (1978), as well as the overall import of the statutory provision, the trial court concluded that an intent to deliver to an inmate was a necessary element of the offense, and thus the charges should be dismissed. The majority would affirm this decision. I respectfully disagree.

As noted by the trial court, there is perhaps some ambiguity with regard to the phrase “for use and benefit of the prisoners.” It could be read to qualify the bringing of contraband into the prison so that the phrase would be read to prohibit bringing into a prison a contraband substance for the use and benefit of the prisoners. However, this interpretation seems a bit strained when the location and context of the phrases are considered.

The more natural sounding construction would read this phrase to qualify the nature of the land owned or leased by the Commonwealth so that the phrase would read: brings into 1) any prison, 2) mental hospital, 3) any building appurtenant thereto, 4) or land granted to or owned or leased by the Commonwealth or County for the use or benefit of the prisoners or inmates. Not only is this a more natural sounding construction of the legislature’s language, I believe it also works to effectuate the intent of the enactment.

It appears clear that the harm the legislature desired to prevent is the acquisition of the contraband substance by the confined person. Although this goal would be effectuated to a certain degree if read with an intent to transfer, there would still be a risk, one that could be quite substantial, that a confined person would acquire such proscribed substances even if brought into the prison without intent to transfer the same. In such cases the purpose of the statute would be left unfulfilled and the harm sought to be prevented would occur. It is noteworthy that the language does not qualify the language “brings into” with intent to transfer to an inmate.

When we are called upon to interpret a legislative enactment we will attempt to construe its terms in a logical fashion while also trying to effectuate its general purpose. I believe the language of the subject statute is straight forward and prohibits bringing the enumerated substances onto prison property regardless of whether or not the individual has an intent to transfer the substance to a prisoner or not. As such, I would reverse the order dismissing the contraband charge and remand to the trial court.

CIRILLO, President Judge, and ROWLEY and MONTEMURO, JJ., join.


source: Caselaw Access Project

author: POPOVICH, Judge: CAVANAUGH, Judge,

license: Public Domain

text:
    557 A.2d 347
    COMMONWEALTH of Pennsylvania, Appellee, v. John SMAGALA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 13, 1988.
    Filed Feb. 24, 1989.
    Reargument Denied May 4, 1989.

      Frank J. Marcone, Media, for appellant.
    Dennis C. McAndrews, Assistant District Attorney, Wayne, for Com., appellee.
    Before CAVANAUGH, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered on March 28, 1988, by the Delaware County Court of Common Pleas against the appellant, John Smagala, following his conviction on the charges of possession of a controlled substance (cocaine) with intent to deliver, possession of a controlled substance, possession of drug paraphernalia and possession of a firearm without a license. Instantly, the appellant argues that the trial court erroneously denied his motion to suppress certain items of evidence on the ground that the evidence was seized as a result of an illegal search. He further contends that, even if that evidence was properly seized, his conviction on possession with intent to deliver charge was based on insufficient evidence, or, in the alternative, the verdict was against the weight of the evidence. Upon review, we have determined that the evidence was insufficient to support the conviction of the appellant for possession with intent to deliver cocaine. Thus, we vacate the judgment of sentence for the possession with intent to deliver conviction and remand for resentencing on the possession of a controlled substance charge.

The facts of this case as found by the trial court sitting without a jury were set forth in its opinion as follows:

At approximately 8:50 p.m. in February 3, 1987, police officer Phillip Turner of the Ridley Township Police Department, drove by a house located at 817 East MacDade Boulevard, Ridley Township, Delaware County, Pennsylvania and observed a yellow Ford Maverick parked in the driveway. The owner of the house, a Mrs. Henry, had advised the police that she was going to be away on vacation and that no one would be home at this address. She requested that the police periodically check the property during her absence. Prior to 8:50 p.m. on February 3rd, Officer Turner had performed this service as requested on numerous occasions, however, no vehicle had been observed at the premises. When Officer Turner saw this vehicle in the driveway on February 3rd, he also observed the boarded up garage located on the premises where light was shining through the cracks in the door and around the windows.
Officer Turner radioed the police station, informing them that he would be at this location for a while and requesting a registration check on the vehicle. Believing that criminal activity might be afoot, Officer Turner approached the garage and attempted to look inside. Being unable to see into the garage, but hearing movement inside, Officer Turner knocked on the door. After receiving no response, he attempted to open the door. The door was locked. Officer Turner then heard a voice from inside the garage asking who was outside. Officer Turner responded that it was the “Ridley Township Police.” After a delay of approximately three to four minutes, the door was opened by Defendant, John Smagala. When the door opened, Officer Turner could see a partly disassembled vehicle in the garage.
During the aforementioned three to four minute delay, Officer Turner was notified that the Ford Maverick was owned by a Mr. Krauss who resided on 14th Street in the City of Chester. Officer Turner asked Defendant what he was doing in the garage. Defendant responded that he had rented the building and was using it to repair cars. When asked to produce documentation to confirm his story, Defendant could produce none.
Officer Turner informed Defendant as to why he was there and asked Defendant if he could “look around.” Defendant replied, “Sure, I have no problem with that.” (N.T. 11/17/87 pgs. 12-13). By this time Officer Dryden of the Ridley Township Police Department had arrived and he remained outside of the garage with Defendant. Officer Turner, pursuant to the permission given by Defendant, entered the garage to “look around”.
On the left hand side of the garage was a workbench with a light on overhead. Officer Turner approached the bench and on top of it he observed a small glassine bag filled with small wire mesh screens varying in size of approximately ¥2 to ¥4 inch in diameter. The bag contained approximately 50 to 60 screens. The officer also observed several hundred burned matches and numerous matchbooks and a small glass pipe containing a wire screen inside the barrel. The glass pipe contained residue of what appeared to Officer Turner to be a controlled substance.
Directly below the bench was an open space in which at an open cardboard box. Officer Turner could look inside the box from where he was standing. Inside this box he observed a smaller box, approximately one inch high. In this smaller box Officer Turner observed a glassine bag containing a white powdery substance which Officer Turner suspected to be a controlled substance. Also in the smaller box were two bundles containing a total of 77 small glassine bags. All of these glassine bags contained what appeared to be the residue of controlled substances. Officer Turner then left the garage and Defendant was placed under arrest.
Pursuant to the arrest and prior to placing Defendant in the police vehicle, Defendant was searched. The search resulted in the following items being found in Defendant’s pockets: (1) a rolled up $20 bill; (2) a razor blade; (3) a small glassine bag containing .8 grams of cocaine; (4) $834 in United States currency; and (5) four index cards, approximately 3 by 5 inches in size containing names with numerical values next to the names.
Thereafter, Defendant was taken to the police station. The Ford Maverick automobile was towed to the police station for safekeeping. At the police station, an inventory search was performed on the Ford Maverick. Defendant consented to this inventory search. During the search, the police found a loaded Smith and Wesson 9 millimeter semi-automatic pistol under the driver’s seat. Defendant indicated that he owned the weapon, but did not have a license to carry it. A subsequent check with the Pennsylvania State Police confirmed that the Defendant did not have a license to carry the weapon.
As a result of the foregoing, Defendant, John Smagala, was charged on four separate criminal informations, Information No. 309A-87 charging knowing or intentional possession of controlled substances, to wit, cocaine (35 Pa. CSA § 780-113[a](30)), Information No. 309B-87 charging possession with intent to deliver controlled substance/cocaine (35 Pa. CSA § 780-113[a](30)), Information No. 309C-87 charging drug paraphernalia (18 Pa. CSA § 780-113[a](32)), and Information No. 309D-87 charging possession of firearms without a license (18 Pa. CSA § 6106(a)).
On October 21, 1987 Defendant filed a Motion to Suppress. In that Motion Defendant alleged that the February 3,1987 search of the premises occupied by Defendant at 817 East MacDade Boulevard, Folsom, Pennsylvania, was illegal. In addition, the Defendant alleged that the search of the Ford Maverick automobile was also improp-: er. Defendant requested that all evidence seized as a result of illegal searches be suppressed. A suppression hearing was held November 4,1987. At the conclusion of the hearing, Defendant’s Motion was denied.
On November 17,1987 a non-jury trial was commenced. During the trial the Commonwealth presented two witnesses, Officers Phillip Turner and Charles Palo, of the Ridley Township Police Department. Officer Turner testified concerning the facts and circumstances surrounding the searches conducted on February 3,1987 and he identified the various Commonwealth exhibits (C-l through C-14), most of which were the items seized as a result of the three searches. Officer Palo was qualified as an expert witness in the field of narcotic investigation and the packaging, sale and distribution of controlled substances. He testified in detail concerning the significance of the Commonwealth’s exhibits as they related to the sale and distribution of controlled substances. In addition, he offered the opinion that possession of these items was more consistent with possession of controlled substances. In addition, he offered the opinion that possession of these items was more consistent with possession of controlled substances with the intent to deliver than with possession for personal use. On November 18,1987, at the conclusion of all of the testimony, Defendant was found guilty on all Informations.
On November 20, 1987, Defendant’s counsel filed timely post-trial motions. These motions were denied by Order dated February 4,1988. On March 28,1988 Defendant was sentenced on Information No. 309B-87 to incarceration in the Delaware County Prison for a period of not less than 4 months nor more than 2 years minus one day. On Information No. 309B-87, Defendant was sentenced to a concurrent two year probation. Sentence was suspended on Information 8090-87. With regard to the jail sentence, because of his fourteen year work history, Defendand was furloughed from 6:80 a.m. Mondays to 8:00 p.m. Fridays, so as to not jeopardize his employment. The sentence also included a provision for drug treatment as a condition of both probation and parole.

First, we will address the appellant’s contention that the evidence seized during the search of the garage should have been suppressed since Ms consent to the search was not voluntarily given. The standard of review which governs a ruling on a motion to suppress has been set forth as follows:

In reviewing a motion to suppress, we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonableness of the inferences and legal conclusions drawn therefrom. In determining whether the record supports the court’s findings of fact, we must accept the Commonwealth’s evidence and so much of the evidence of the defense as, fairly read in the context of the record as a whole remains uncontradicted. Commonwealth v. Weik, 360 Pa.Super. 560, 561, 521 A.2d 44, 45 (1987); Commonwealth v. Eliff, 300 Pa.Super. 423, 428-29, 446 A.2d 927, 929-30 (1982).

Commonwealth v. Lemanski, 365 Pa.Super. 332, 342-343, 529 A.2d 1085, 1089 (1987). See also, Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1988).

The Supreme Court of the United States, in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), reviewed facts similar to those before us and stated:

We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.

Schneckloth, 412 U.S. at 248-249, 93 S.Ct. at 2059, 36 L.Ed.2d at 875. See also, Commonwealth v. Albrecht, 510 Pa. 603, 612, 511 A.2d 764, 769 (1986); Commonwealth v. Markman, 320 Pa.Super. 304, 313, 467 A.2d 336, 341 (1983); Commonwealth v. Lowery, 305 Pa.Super. 66, 73, 451 A.2d 245, 248-249 (1982).

The suppression court made the following findings of fact which are supported by the record. Officer Turner’s suspicions were initially aroused by the presence of the appellant’s vehicle on the premises of Mrs. Henry and by light emanating from her garage which, to the officer’s knowledge, should have been dark and vacant. The officer knocked on the garage door, and, receiving no response, he attempted to open the door. The appellant then asked who was there, and Officer Turner announced he was a member of “Ridley Township Police.” The appellant opened the garage door and identified himself. Eventually, Officer Turner asked the appellant if he could “look around.” To which, the appellant responded, “Sure, I have no problem with that.” The officer then surveyed the premises and found,, the evidence in plain view. Applying the standard of Schneckloth, supra, to those facts, we find it was entirely reasonable for the court to conclude that the appellant voluntarily consented to the search of the garage.

The appellant next asserts that the evidence obtained from his person and his vehicle should be suppressed on the basis that the evidence was seized as a result of an illegal arrest. Having determined that initial search of the garage was a valid consent search, it is quite clear that the warrantless arrest of the appellant was supported by the existence of probable cause. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Commonwealth v. Dennis, 236 Pa.Super. 348, 344 A.2d 713 (1975). Therefor, we find that the search of the appellant’s person was a valid search incident to a lawful arrest. Dennis, 344 A.2d at 715; U.S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). In addition, we find that the search of the appellant’s vehicle was a valid inventory search incident to a lawful arrest. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Commonwealth v. Martinson, 368 Pa.Super. 130, 533 A.2d 750 (1987); Commonwealth v. Brandt, 244 Pa.Super. 154, 366 A.2d 1238 (1976).

Finally, the appellant asserts that the evidence was legally insufficient to support his conviction on the charge of possession of a controlled substance with intent to deliver. “Evidence is legally sufficient to support a verdict if, when viewed in the light most favorable to the Commonwealth and making all the reasonable inferences flowing therefrom, the fact finder could find each element of the offense beyond a reasonable doubt. Commonwealth v. Aulisio, 514 Pa. 84, 522 A.2d 1075 (1987).” Commonwealth v. Wienckowski, 371 Pa.Super. 153, 160, 537 A.2d 866, 869 (1988). We cannot agree with the trial court’s determination that the evidence justifies the appellant’s conviction of possession of cocaine with intent to deliver. While some evidence of distribution of cocaine is present and evidence of possession is beyond dispute, the evidence before us is far short of the quantum sufficient to sustain beyond a reasonable doubt a conviction for possession with intent to deliver.

The crime charged under 35 Pa.S.A. § 780-113(a)(30) provides in pertinent part:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver a counterfeit controlled substance.

Under Pennsylvania law, intent to deliver may be inferred from possession of a large quantity of controlled substances. Commonwealth v. Santiago, 462 Pa. 216, 223, 340 A.2d 440, 444 (1975); Commonwealth v. Pagan, 315 Pa.Super. 7, 461 A.2d 321, 322 (1983); Commonwealth v. Bagley, 296 Pa.Super. 43, 442 A.2d 287, 289 (1983). Similarly, the absence of intent to deliver may be inferred where only a small amount of the controlled substance was discovered. Pagan, 315 Pa.Superior Ct. at 11, 461 A.2d at 323; Commonwealth v. Gill, 490 Pa. 1, 5, 415 A.2d 2, 4 (1980) (small amount of controlled substance consistent with personal use, not distribution).

Instantly, the following evidence was seized from the garage and the appellant’s person: 0.8 gram of cocaine, a razor blade, a rolled up twenty dollar bill, a small amount of bicarbonate of soda, test tubes, a glass pipe, wire mesh screens, hundreds of burnt matches, hundreds of used “Klennex,” four index cards with names and numerical amounts written on them (“tally sheets”), two bundles of used, reusable glassine baggies and $884.00 in cash. Also, a loaded handgun was found under the seat in the appellant’s locked vehicle.

A common sense review of the facts reveals unequivocally that the appellant possessed the cocaine for personal use, not distribution. The appellant possessed only 0.8 of a gram of cocaine, a small amount consistent with personal use. Expert testimony at trial indicated that test tubes and bicarbonate of soda are used to convert cocaine in the powder form into cocaine in the rock form, “crack.” The cocaine rock is then smoked in a glass pipe inside of which is a wire mesh screen. Instantly, the garage work bench was covered with hundreds of burnt matches and the appellant possessed all the necessary tools to create and smoke “crack.” Those facts are consistent with personal use of cocaine. Also, a rolled up twenty dollar bill and a razor blade were found on the appellant’s person. The Commonwealth’s expert testified that the razor blade was used to divide the cocaine into “lines” and then the rolled currency was used to inhale those lines of cocaine through the user’s nostrils. Also, numerous used “Klennex” were found on top of the work bench where the glass pipe was located. Again, those facts are consistent with peisonal use. The totality of the evidence leads us to the unavoidable conclusion that the appellant intended either to smoke the cocaine or inhale it.

The Commonwealth points to the glassine baggies commonly used to package cocaine for distribution as evidence of intent to deliver. However, all of the glassine baggies had been previously used, and, although they are generally reusable, many of these particular baggies had been damaged by previous use to such an extent that future use in distribution would be impossible. The Commonwealth also points to the large amount of cash on the appellant’s person. Yet, there is no evidence of record to show that the currency was the product of drug distribution. The Commonwealth argues that the appellant possessed a handgun to protect his cash and drugs found on his person. However, the handgun was found under the seat of the appellant’s car after an inventory search of the car at the police station. If, as the Commonwealth argues and the trial court implicitly agrees, the handgun was possessed to protect the appellant’s cash and drugs, is it not logical that the handgun would have been inside the garage with the appellant, accessible at a moment’s notice? Finally, the Commonwealth offers the tally' sheets as evidence of intent to deliver. While this evidence is consistent with drug distribution, this evidence is not sufficient alone to justify a conviction for possession with intent to deliver. See Pagan, 315 Pa.Superior Ct. at 11, 461 A.2d at 323 (tally sheets offered to prove intent to distribute; evidence, including tally sheets, insufficient to support possession with intent to deliver).

To be sure, with the aid of additional facts, the evidence herein could support an inference that the appellant was involved in the distribution of narcotics. However, the evidence as it stands is clearly insufficient; there was no evidence of a controlled buy of narcotics, no evidence of marked currency used in a controlled buy, no evidence of the appellant’s possession of a quantity of cocaine consistent with distribution, no evidence of weight scales nor testimony of an informant identifying the appellant as a drug dealer. Significantly, the police subsequently searched the appellant’s residence and found no evidence of drug distribution or use. The evidence in the present case does not remotely rise to the level of evidence produced in the cases which the trial court and the Commonwealth cite in support of the conviction, as demonstrated by the following discussion of those cases.

In Commonwealth v. Sweeting, 364 Pa.Super. 626, 528 A.2d 978 (1987), the evidence was sufficient to support a possession with intent to deliver a controlled substance. Therein, the defendant intended to sell methamphetamine to an undercover state trooper when, in fact, the defendant mistakenly sold meperidine to the trooper. The court held that the appellant’s mistaken belief about the precise chemical nature of the substance did not render the evidence insufficient. The present case does not involve mistake as to the drug’s identity and no evidence of a direct sale to a police officer or a member of the public exists.

In Commonwealth v. Speaks, 351 Pa.Super. 149, 505 A.2d 310 (1986), we held that the evidence sufficiently demonstrated that the defendant possessed marijuana with the intent to deliver it. The evidence revealed the defendant possessed six bags of marijuana totalling 65.5 grams, packaging materials commonly used in the sale of marijuana, a controlled buy occurred within forty-eight hours of the execution of the search warrant, marked bills from the controlled buy were recovered during the search and the appellant was present at the controlled buy. Instantly, the appellant possessed only a small amount of cocaine, and there was no evidence of a controlled buy of narcotics which would link the appellant to distribution of drugs.

In Commonwealth v. Lacey, 344 Pa.Super. 576, 496 A.2d 1256 (1985), we found that the evidence was sufficient to support a conviction for possession of drug paraphernalia with the intent to deliver. Clearly, the holding of Lacey, supra, is inapposite presently, except that portion which held that expert testimony concerning an object’s use is admissible.

In Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984), we found that the evidence was sufficient to support the defendant’s conviction on the charge of possession with intent to deliver. Probable cause for the search was based on the controlled buy of $100.00 worth of heroin from the defendant by a reliable informant and on the fact that the defendant had been convicted on similar charges previously. During the search, the defendant was found exiting the bathroom where a flushing commode was heard, and a small amount of heroin was recovered from the commode. As a result of the search, the police discovered a large quantity of drugs, drug paraphernalia used in the distribution of drugs, over $2600.00 in cash and several guns. Instantly, the quantity of drugs was small, and there was no controlled buy or confidential informant. The seized currency was of a considerable lesser amount, and the drug paraphernalia was consistent with personal use rather than distribution.

In Commonwealth v. Harris, 241 Pa.Super. 7, 359 A.2d 407 (1976), we found that the evidence was sufficient to support the finding of intent to deliver. The evidence therein revealed the defendant was in possession of sixteen half spoons of heroin, two measuring spoons and a scale. The probable cause for the search was based on information from a confidential informant that the defendant was carrying a “bunch of stuff” and was on his way to meet several other persons. Instantly, no measuring devices of any kind were found, and there was no evidence from a confidential informant regarding the appellant’s reputation as a drug dealer. In addition, the Harris court applied the holding of Santiago, supra, i.e. a large quantity of narcotics will permit an inference of intent to deliver. Certainly, the small amount of cocaine found on the appellant’s person cannot give rise to the same inference. In fact, under the rule announced in Pagan, supra, such a small amount of a controlled substance raises an inference of an absence of intent to deliver.

Our current decision is clearly supported by our prior decision in Pagan, supra. Therein, the defendant was in possession of 19.9 grams of marijuana, well below the quantity considered to be a small amount. 85 Pa.S.A. § 780-113(a)(31). The police abo found a sheet of notebook paper which contained the names of individuals alongside amounts of money and a box of manilla envelopes. Instantly, we can analogize the index cards to the sheet of notebook paper. The Pagan court found that, even with the “tally sheet” included as admissible evidence, the evidence was insufficient to support a conviction for possession with intent to deliver where the only evidence was an amount of controlled substance consistent with personal use and ambiguous evidence of paraphernalia used in narcotics distribution. 315 Pa.Superior Ct. at 11, 461 A.2d at 322-323. Finding the evidence of distribution before us similarly ambiguous, we hold that the evidence presented is insufficient to support an inference of intent to deliver beyond a reasonable doubt.

A review of the trial court’s opinion reveals that the court simply overlooked the fact that there was no evidence presented linking the appellant to current distribution of cocaine; rather, the court focused on the expert testimony that some of the evidence was consistent with drug distribution sometime in the past. The trial court opines that to determine the present evidence was insufficient would have the effect of requiring the Commonwealth to prove that the small quantity of drags was actually a part of a larger quantity which had already been distributed and would have the practical effect of rewarding drug dealers who efficiently distribute their product. Tr.Ct.Op., p. 11. This is simply not the case. Had there been any direct evidence that the appellant was involved currently in distribution of narcotics, then even a small amount of cocaine would have sufficed as the basis for an inference of intent to deliver. However, the Commonwealth was unable to present any evidence which would, without the most tenuous of assumptions, support the court’s determination that the 0.8 grams of cocaine was possessed for the purposes of present distribution. See, Gill, 415 A.2d at 4 (accepting that appellant may have delivered substance in past, absent evidence of intent to distribute the specific packet of drugs seized, intent to deliver may not be inferred.) Therefor, we find that the evidence was insufficient to support beyond a reasonable doubt the appellant’s conviction oh the charge of possession of cocaine with the intent to deliver. Accordingly, we vacate that portion of the judgment of sentence dealing with the intent to deliver charge and remand for resentencing on the possession of a controlled substance charge.

Judgment affirmed in part, vacated in part and remanded for sentencing in accordance with the provisions of this Opinion. Jurisdiction is relinquished.

CAVANAUGH, J., files a concurring and dissenting opinion.

CAVANAUGH, Judge,

concurring and dissenting:

I concur in that part of the majority opinion which affirms the judgment of sentence on the conviction for possession of a controlled substance. I respectfully dissent from the reversal of the judgment of sentence on the conviction of possession of a controlled substance with intent to deliver.

In reviewing a challenge to the sufficiency of the evidence, we are guided by the rule that evidence is legally sufficient to support a verdict if, when viewed in the light most favorable to the Commonwealth, and making all reasonable inferences flowing therefrom, the jury could find each element of the offense present beyond a reasonable doubt. Commonwealth v. Wienckowski, 371 Pa.Super. 153, 537 A.2d 866 (1988); Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986), certiorari denied Griffin v. Pennsylvania, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987). The majority opinion agrees that there was sufficient evidence of possession of a controlled substance, “beyond dispute”. However, while it concedes that “some evidence of distribution of cocaine is present”, it concludes that it was insufficient to sustain a conviction of possession with intent to deliver. It is this conclusion that I believe is incorrect.

The court below stated at page 12, slip opinion:

In the instant case the Commonwealth proved that Defendant was in possession of a small quantity of cocaine. It also proved that at the same time Defendant was in possession of tally sheets, commonly used by drug dealers, a large amount of money, glassine bags used for drug distribution and a loaded gun, all of which Defendant concedes give rise to the reasonable inference that he was engaged in the distribution of narcotics.

The majority opinion states at page 352: “a common sense review of the facts reveals unequivocally that the appellant possessed the cocaine for personal use, not distribution.” Even counsel for the appellant indicates that the evidence goes beyond this, stating at page 12 of the appellant’s brief:

Accepting all of the evidence in the light most favorable to the Commonwealth, all that can be found is that the Appellant was engaged in the sale of drugs. Since there was no evidence that the Appellant was engaged in the sale of drugs at the time of his arrest, the most that can be found is that the Appellant had sold drugs in the past. To be sufficient to prove guilt of possession with the intent to deliver beyond a reasonable doubt, there must be some evidence, however slight, to link the drugs in the Appellant’s possession to a present intent to deliver. (Emphasis added.)

Appellant argues that although the evidence established that he had been engaged in selling drugs, he possessed too small an amount at the time of his arrest to support an intention to sell those drugs. Although the majority adopts this reasoning, I find it unpersuasive. Appellant relies on Commonwealth v. Pagan, 315 Pa.Super. 7, 461 A.2d 321 (1983) to support his contention that absence of an intent to deliver or sell may be inferred where only a small amount of a controlled substance is found. In Pagan, supra, there was no evidence that defendant intended to sell or deliver a controlled substance other than the fact that he possessed a small amount of marijuana. In the instant case, there was substantial additional evidence that the appellant intended to deliver the cocaine in his possession, although he possessed only a very small amount.

In addition to the physical evidence seized by the police when the appellant was arrested, there was expert testimony by a police officer that the paraphernalia seized was more consistent with possession of cocaine, with intent to deliver, than mere possession for personal use. Expert opinion testimony is admissible to support an inference that the controlled substance was possessed with an intent to deliver. Commonwealth v. Bagley, 296 Pa.Super. 43, 442 A.2d 287 (1982). Footnote 3 in Commonwealth v. Harris, 241 Pa.Super. 7, 9, 359 A.2d 407, 408 (1976) succinctly states the proposition that the possession of a small amount of drugs will not preclude a finding of possession with intent to deliver, as follows:

3. In Commonwealth v. Hill, 236 Pa.Super. 572, 346 A.2d 314 (1975), our court affirmed a conviction for trafficking in narcotic drags under the Act of Sept. 26, 1961, P.L. 1664 § 4 (35 P.S. § 780-4(q)). In that case, although there was no evidence of an actual sale, and although the appellant had only fifteen half-spoons of heroin in his possession at the time of his arrest, our court felt that this amount, coupled with the other factors present, was sufficient for conviction. While Hill dealt with a violation under the old drug act, since repealed, the analogy between that case and the case at bar is sufficient for us to conclude that the amount involved is not necessarily crucial to establishing an inference of possession with intent to deliver, if the proper other facts are present. In the case at bar, the detective’s expert testimony supplied sufficient other facts to support the inference. (Emphasis added.)

In Harris, supra, a detective testified that in his opinion the amount of heroin in the possession of the defendant, consisting of sixteen half spoons, indicated that it was not for his personal use, and was possessed for the purpose of distributing it.

In the instant case, a police officer, who was experienced in narcotics cases, testified that the cocaine in the appellant's possession at the time he was arrested had a value of about $80.00. His possession of over one hundred small plastic bags used for packaging cocaine was consistent with the distribution of drugs rather than personal use. Further, drag dealers frequently carry a gun for protection, and appellant had a Smith & Wesson, since they carry drugs and large amounts of money. The appellant had over $800 in cash when he was arrested and tally sheets reflecting accounts for various customers. The Commonwealth’s burden of proof may be sustained by purely circumstantial evidence. Commonwealth v. Vishneski, 880 Pa.Super. 495, 552 A.2d 297 (1989).

In my opinion, the totality of the circumstances justified the finding that the defendant possessed cocaine with the intent to sell or deliver. We stated in Commonwealth v. Keefer, 338 Pa.Super. 184, 190, 487 A.2d 915, 918:

As for the possession with intent to deliver conviction, appellant argues that the quantity and purity of the methamphetamine, as well as the syringes were consistent with personal use, and not delivery, of the substance. That is true. However, appellant fails to mention the other seized items which unequivocally establish more than just personal use: empty glassine baggies, numerous needles used for injecting drugs, and scales. Moreover, appellant had very recently sold the drug to a police informant. Thus, we find the evidence was sufficient on that conviction.

We may not reject a determination of the trier of fact which is supported by the evidence, merely because we might have reached a different result in the first instance. The determination of the credibility of witnesses and the appropriate weight to be accorded to the evidence produced at trial is within the sole province of the trier of fact. Commonwealth v. Vazquez, 328 Pa.Super. 86, 476 A.2d 466 (1984). Accordingly, I would affirm the judgment of sentence in all respects.

      . 35 Pa.S.A. § 780-113(a)(30).

      . 35 Pa.S.A. § 780-113(a)(6).

      . 35 Pa.S.A. § 780-113(a)(32).

      . 18 Pa.C.S.A. § 6106(a).

      . The appellant argues that his consent was coerced. As evidence of coercion, the appellant asserts that, when Officer Turner attempted originally to gain entry into the garage, the officer used such force that the bar used to secure the door was bent. However, considering all of the record as a whole, we are convinced that the trial court correctly concluded the appellant was not coerced into consenting to the search.

      . We need not consider the appellant’s assertion that the verdict was against the weight of the evidence since we find that the evidence was insufficient to support his conviction on the possession with intent to deliver charge.

      . We note our decision in Commonwealth v. Proietto, 241 Pa.Super. 385, 361 A.2d 712 (1976) recognized that, under certain circumstances, even a known drug dealer may be in possession of drugs merely for personal use and that those drugs held for personal use may be from the very same cache of drugs destined for distribution.

      . Commonwealth v. Bagley, 296 Pa.Super. 43, 442 A.2d 287 (1982) also supports our decision. Therein, we found, over the Commonwealth’s protestations, that the trial court was correct in arresting judgment on the charge of possession of a controlled substance with intent to deliver. The Bagley defendant was found to be in possession of eleven glassine baggies of heroin totalling 15.3 grams. The purity of the heroin in the baggies ranged from four to eighteen percent. The Commonwealth argued that the quantity of heroin seized, its street value, its relative purity, its manner of packaging and the defendant’s possession of the opiate were together sufficient to permit the jury to render a verdict of guilty on the intent to deliver charge. In Bagley, we disagreed with the Commonwealth and, likewise, here too we disagree. Instantly, the appellant possessed an amount of the drug consistent with personal use and the only evidence of the appellant’s involvement in drug distribution is speculative.

      . By direct evidence we mean a controlled buy of drugs, marked currency from a controlled buy, testimony identifying the appellant as a drug dealer, weight scales, unused and undamaged glassine bags, et cetera.

      . One such assumption is evidenced by the trial court’s statement: “Obviously, if Officer Turner had confronted Defendant just prior to his last transaction, Defendant would have had in his possession more than 0.8 grams of cocaine and something less than $834.00 in U.S. currency.” Tr.Ct.Op., p. 11-12.

      . The Opinion of the court below by Surrick, J. quotes from pages 7-8 of the defendant’s brief in support of his post-trial motions, as follows:
      The difficulty in this case arises out of the fact that the Defendant was in possession of only a small amount of controlled substance under circumstances consistent with the use of drugs, while at the same time there is evidence that the Defendant was engaged in the distribution of drugs.

      ******

        While the possession of the tally sheets, the money, the numerous glassine bags and the gun are sufficient to give rise to inferences that the Defendant was engaged in the distribution of narcotics, there is no evidence that the 0.8 gram was part of a larger quantity which had been distributed. (Emphasis added.)


author: BROSKY, Judge:

text:
    557 A.2d 357
    COMMONWEALTH of Pennsylvania v. Joseph J. PAUL, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1989.
    Filed March 9, 1989.
    Reargument Denied April 28, 1989.

      William L. Goldman, Doylestown, for appellant.
    Stephen B. Harris, Assistant District Attorney, Warring-ton, for Com., appellee.
    Before BROSKY, McEWEN and OLSZEWSKI, JJ.
   BROSKY, Judge:

This interlocutory appeal by permission lies from an Order denying appellant’s Motion to compel his placement in the Bucks County A.R.D. program.

Three issues are presented for our review: (1) whether the District Attorney may refuse to submit a case for A.R.D. merely on the basis of the applicant’s involvement in a two-vehicle accident; (2) whether an unwritten, unpublished policy can be enforced in a criminal prosecution so as to deny an otherwise qualified applicant admission into the Bucks County A.R.D. program; and (3) whether a trial court may compel placement of a qualified applicant into the A.R.D. program when it finds such policy to be an abuse of the prosecutor’s discretion. We affirm.

Appellant was charged with driving under the influence (75 Pa.C.S.A. § 3731) after he struck an occupied vehicle which was stopped at an intersection. The driver of the struck vehicle was waiting for traffic to clear so that he could make a turn. Appellant argues in his initial challenge that the decision of the Bucks County District Attorney denying his application for participation in the A.R.D. Program on the basis of Ms involvement in a two-vehicle accident where the struck vehicle was occupied constitutes an abuse of the prosecutor’s discretion. Appellant perceives this to be an arbitrary policy which, he says, violates the twin-pronged standard adopted in Commonwealth v. Ebert, 369 Pa.Super. 318, 535 A.2d 178 (1987), limiting the exercise of prosecutorial discretion in submitting a case for A.R.D. Ebert requires, first, that the prosecutor must specify the reason or reasons for refusing to submit a case for A.R.D. Secondly, the reason or reasons must relate to the protection of society or to the likelihood of successful rehabilitation. Id.

The gravamen of this contention is that the reason given here does not meet the latter condition of the second prong of the Ebert standard. We disagree. That a District Attorney has the sole discretion to submit a case for A.R.D. is now well established in this Commonwealth. Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985); Commonwealth v. Knowles, 373 Pa.Super. 203, 540 A.2d 938 (1988); Commonwealth v. Ebert, supra; Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986); Commonwealth v. Roeder, 353 Pa.Super. 137, 509 A.2d 373 (1986); Commonwealth v. Brown, 350 Pa.Super. 453, 504 A.2d 927 (1986); Commonwealth v. Burdge, 345 Pa.Super. 187, 497 A.2d 1367 (1985); Commonwealth v. Boerner, 268 Pa.Super. 168, 407 A.2d 883 (1979); Pa.R.Crim.P. 175, 176.

The District Attorney openly stated that it was the policy of his office to refuse to submit a case for A.R.D. in which a person charged with driving under the influence had struck another occupied vehicle. Appellant does not argue that this policy does not have as its goal the protection of society; rather, he contends that the District Attorney’s reason for refusing to move his admission into the Program bears no relationship to the likelihood of appellant’s successful rehabilitation, an admitted goal of the program. See Commonwealth v. Lutz, supra. He charges the District Attorney for refusing to consider his otherwise safe driving record, the lack of a criminal record, evidence of required insurance coverage, possession of a valid operator’s license, the absence of any injury to the driver of the struck motor vehicle and the opinions of the victim and the arresting officer in favor of A.R.D. treatment for him.

In Commonwealth v. Lutz, supra, our Supreme Court discussed the latitude of a prosecutor’s discretion:

[T]he decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on his view of what is most beneficial for society and the offender.

508 Pa. at 310, 495 A.2d at 935; emphasis in text; citations omitted. Appellant does not allege that the District Attorney employed any of these forbidden factors in reaching his decision that the instant case was not a proper one for the County A.R.D. program, nor does appellant contest the District Attorney’s policy on the basis of such impermissible criteria. Absent any such averment, “[o]ur reading of Lutz does not convince us that appellant’s complaint concerning the [accident-with-an-occupied-vehicle criterion] qualifies as a prohibited consideration contemplated by the Lutz court to be wholly unrelated to the rehabilitative needs of the accused and the protection of the public.” Commonwealth v. Knowles, supra 378 Pa.Super. at 207-08, 540 A.2d at 940; emphasis added.

Our efforts have been in vain to locate any authority, judicial or legislative, in this Commonwealth to support appellant’s claim that a District Attorney would be required to “set off” or weigh purportedly mitigating factors which he [appellant] has enumerated {see supra at 358-859 and Appellant’s Brief, 9-10) against a considered policy of rejecting applications for A.R.D. not meeting the designated criteria for acceptance into the Program, and further, that the failure or refusal of a District Attorney to conduct this type of balancing analysis as a condition precedent to his determination to reject a case for A.R.D. rises to the level of prosecutorial abuse. Neither Lutz and its progeny nor the cases preceding Lutz condones such requirement or restricts the prosecutor’s discretion in the fashion now urged by appellant. The cases since Lutz have not broadened or restricted a District Attorney’s discretion regarding the acceptance or rejection of persons into or from participation in an A.R.D. program. We see no reason to deviate from that line of reasoning now.

Research has disclosed instances where similar, if not harsher, admissions criteria have weathered attacks upon prosecutorial abuse. In Pyle v. Court of Common Pleas, 494 Pa. 323, 431 A.2d 876 (1981), a challenge was raised to the refusal of the Cumberland County District Attorney to accept any first-time nonviolent offenders for A.R.D. consideration. The Supreme Court rejected the argument that the A.R.D. Rules (Pa.R.Crim.P. 175-185) promulgated by it compelled prosecutorial acceptance of cases for A.R.D. upon motion of a party other than the District Attorney. Lutz has reaffirmed this position.

Recently, in Commonwealth v. Knowles, supra, this court upheld the twenty-five percent blood alcohol cut-off policy of the Monroe County District Attorney on the basis that it served the two-fold purpose of the A.R.D. Program as contemplated by Lutz and the A.R.D. Rules. Similarly, in Commonwealth v. Roeder, supra, we affirmed the policy of the Lycoming County District Attorney refusing admission to A.R.D. persons with prior felony records. This policy, we held, was not an abuse of the prosecutor's discretion even though Roeder’s felony conviction had occurred thirteen years earlier. And in Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977), a case which was decided prior to the enactment of the 1982 amendment to the Motor Vehicle Code mandating the establishment and implementation of an A.R.D. program in each judicial district for persons charged with violating Section 3731 of the Motor Vehicle Code, this court approved the policy of the Dauphin County District Attorney refusing all drunk driving cases for A.R.D. consideration. We reasoned that the exclusion of that class of intoxicated persons from the County A.R.D. program was neither unreasonable nor arbitrary.

This case presents no justification for diverging from established precedent. The policy of the Bucks County District Attorney of not considering for enrollment in the County A.R.D. program any person charged with driving under the influence (75 Pa.C.S.A. § 3731) who is involved in an accident with another occupied vehicle does not offend the twin purposes of A.R.D. — the rehabilitation of the offender and the protection of society- — as contemplated by Lutz and the Rules of Criminal Procedure relating to A.R.D.

Undaunted nonetheless, appellant continues to insist that the policy of the District Attorney constitutes an abuse of discretion, and, in conjunction with this position, he asks this court to fashion the remedy of judicial intervention. First, granting appellant the desired remedy would circumvent the holding of Lutz and its progeny, and would displace, as well, the Rules of Criminal Procedure governing A.R.D. procedure in this Commonwealth. Acceptance into the A.R.D. Program implicates a series of interdependent contingencies — the District Attorney’s Motion before the hearing court to accept the offender into the Program (Pa.R.Crim.P. 175, 176), the accused’s acceptance of the conditions of the Program before the court (Pa.R.Crim.P. 178, 179(a), (d)) and the hearing court’s assessment of the circumstances of each case and its grant of the Commonwealth’s Motion, if it agrees that the case is a proper one for A.R.D. consideration (Pa.R.Crim.P. 179(b), (c)).

A.R.D. recommendation is solely the province of the prosecutor, and admission of an offender into the program is by grace of the trial court upon the Commonwealth’s motion. Commonwealth v. Ayers, 363 Pa.Super. 232, 525 A.2d 804 (1987). An accused, therefore, has no right to demand acceptance into the program and cannot complain when he is precluded from participation. Commonwealth v. Lutz, supra; Commonwealth v. Kiehl, supra; Commonwealth v. Boerner, supra. Obviously, then, appellant’s Motion to compel his acceptance into the Bucks County A.R.D. program has no place in the procedural or legal scheme of an A.R.D. program in this Commonwealth.

Moreover, judicial intervention is strictly circumscribed by the Rules of Criminal Procedure governing A.R.D. Commonwealth v. Ayers, supra. Appellant’s contention that judicial intervention must come prior to the Commonwealth’s decision to move a case for acceptance into A.R.D., or in the event that decision is in the negative, is misplaced. Judicial consideration of the Commonwealth’s Motion to admit an accused into the Program is triggered by that event, and not before, and is not contingent upon the Commonwealth’s refusal to move a case for A.R.D. consideration.

Prior to the Commonwealth’s Motion, the judiciary plays no role in the A.R.D. process. Id. After the Commonwealth’s Motion is presented, the court conducts a hearing into the facts. Pa.R.Crim.P. 179(b). This is the first stage at which the judiciary is implicated. Commonwealth v. Ayers, supra. Only after the A.R.D. process has been initiated by the District Attorney and a hearing has been conducted pursuant to Rule 179(b) is the court authorized to act upon the Commonwealth’s Motion. See Pa.R.Crim.P. 179(c). When the A.R.D. candidate indicates his acceptance of the conditions of the Program, only then may the court make the determination whether the accused is likely to be a successful candidate for admission, and, if so, it may grant the Commonwealth’s Motion. See Pa.R.Crim.P. 179(d). If the accused indicates his dissatisfaction with the conditions or his refusal to comply therewith, the court is compelled to deny the Commonwealth’s Motion. See Pa.R.Crim.P. 183.

The Rules further define the court’s role in the A.R.D. process once the court has admitted a party into the A.R.D. Program. For example, Pa.R.Crim.P. 180 and 181 require the Court to order that no information or indictment be handed down during the term of the Program or, where an indictment or information has already been found, that all future proceedings be held in abeyance during the pendency of the Program. In violation situations, the court must hold a hearing on the Commonwealth’s Motion.

If the court, after hearing, finds a violation of conditions, it has the discretionary power to revoke a party’s A.R.D. and to order the Commonwealth to proceed on the charges. Pa.R.Crim.P. 184(c). Finally, an A.R.D. participant must apply to the court, not to the District Attorney, for dismissal of the charges after successful completion of the Program. Rule 185 then requires the court to enter an Order of dismissal if no objections to a party’s discharge are forthcoming within thirty days of notice of the filing of the Petition for dismissal. The Rule further provides, however, that the court must conduct a hearing pursuant to Rule 184, supra, if objections to dismissal are timely filed.

The above is set forth merely to illustrate the stage at which the Rules prescribe judicial intervention. It is solely the Commonwealth’s Motion to accept an individual for A.R.D. consideration which triggers judicial intervention in the A.R.D. process. This procedure ensures the inviolability of the District Attorney’s discretion to decide, autonomously, whether and what charges should be brought. Commonwealth v. Ayers, supra. Thus, under the Rules and the prevailing case law, a court would be without authority to entertain a Motion to compel acceptance prior to or in the absence of the Commonwealth’s Motion to accept an individual for A.R.D. Moreover, such a practice as that suggested by appellant is tantamount to permitting one other than the District Attorney to move for a party’s acceptance into an A.R.D. program. This, we have stated many times over, is a matter committed exclusively to the discretion of the District Attorney. The courts of this Commonwealth have displayed no reluctance or hesitation in upholding a lower court’s refusal to permit an accused to move his own admission into an A.R.D. program, Pyle v. Court of Common Pleas, supra, nor to invalidate court-imposed criteria under the banner of local rules restricting a prosecutor’s discretion to recommend or to decline to recommend candidates for A.R.D. Commonwealth v. Lutz, supra; Commonwealth v. Burdge, supra. Appellant’s sought-after remedy is therefore contrary to established law and rule of court.

Appellant makes much ado about the eye of this controversy — that his involvement in a two-car accident where the struck vehicle was occupied denies him the privilege (the “right”, according to appellant) of being considered as a likely candidate for the Bucks County A.R.D. Program. He makes light of the fact, and urges this court to do likewise, that the occupant of the struck vehicle was, fortunately, unhurt. He cites several purportedly mitigating factors, noted elsewhere in this Opinion, which he claims should weigh heavily in favor of his acceptance into the Program despite the policy of the District Attorney of Bucks County to the contrary.

However, the rationale for appellant’s argument misses its mark entirely. Appellant was charged with violating Section 3731 of the Motor Vehicle Code, 75 Pa.C.S.A. § 3731. This provision of the Code prohibits anyone from driving, operating or otherwise controlling a moving vehicle while under the influence of alcohol, any controlled substance or a combination thereof to the extent of being incapable of safe driving. The statute also proscribes driving, operating or controlling the movement of a vehicle when the blood alcohol count of the driver, operator or one who is otherwise in control of a moving vehicle is .10 percent or greater. Appellant’s blood alcohol count was .12 percent.

The statutory provision under which appellant stands charged appears in Chapter Thirty-seven of the Motor Vehicle Code which is entitled “Miscellaneous Provisions.” Chapter Thirty-seven is divided into three subchapters, “A”, “B” and “C”. Subchapter “A” is labeled “Offenses in General” and includes therein a number of summary vehicle offenses. Subchapter “B” is designated “Serious Traffic Offenses” and comprises the instant offense, as well as the offenses of homicide by vehicle, fleeing or attempting to elude police officer, driving without lights to avoid identification or arrest and homicide by vehicle while driving under the influence.

Apparently, our Legislature has considered drunk driving offenses to be so grave that it created a separate classification for them in the Motor Vehicle Code and categorized it accordingly. Not surprisingly, our Supreme Court has also evinced a strong policy disfavoring lieniency for drunk drivers. See, e.g., Commonwealth v. Lutz, supra and Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983). See also Commonwealth v. Knowles, supra. In Commonwealth v. Mikulan, supra, a plurality of our High Court stated:

The situation underlying this case — that of the drunk driver — occurs with tragic frequency on our Nation’s highways. The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This Court, although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy. See Breithaupt v. Abram, 352 US 432, 439, 1 LEd2d 448, 77 SCt 408 [412] (1957) (‘The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield’); Tate v. Short, 401 US 395, 401, 28 LEd2d 130, 91 SCt 668 [672] (1971) (Blackmun, J., concurring) (deploring “traffic irresponsibility and the frightful carnage it spews upon our highways”); Perez v. Campbell, 402 US 637, 657 and 672, 29 LEd2d 233, 91 SCt 1704 [1715 and 1722] (1971) (Blackmun, J., concurring) (“The slaughter on the highways of this Nation exceeds the death toll of all our wars”); Mackey v. Montrym, 443 US 1, 17-18, 61 LEd2d 321, 99 SCt 2612 [2620-2621] (1979) (recognizing the “compelling interest in highway safety”).

504 Pa. at 248-49, 470 A.2d at 1341, quoting South Dakota v. Neville, 459 U.S. 553, 558-59, 103 S.Ct. 916, 920, 74 L.Ed.2d 748 (1983).

While the instant matter, fortunately, and, unlike Mikulan, does not involve a homicide caused by drunk driving, the above is grimly reflective of the alarming problems posed by drunk drivers. “[I]t would be folly to encourage those who consume alcohol to believe that if they are caught driving while intoxicated, society will take a light view of it.” Commonwealth v. Lutz, supra, 508 Pa. at 313, 495 A.2d at 936. We are unwilling to cast aside as mere fluff, as appellant would have us do, the policy of the Bucks County District Attorney circumscribing a candidate’s acceptance into the County A.R.D. program. Instead, it is a valid and permissible expression of the sentiment of the Chief Prosecutor of that County and a proper and legal exercise of that public official’s discretion.

Order affirmed.

McEWEN, J., concurs in the result.

      . Although this appeal is from the Order denying appellant’s Motion to Compel his placement in the Bucks County A.R.D. program, were we to rely on this Motion as the vehicle by which appellant has sought to preserve the issues he now raises, we would find the allegations therein woefully inadequate to preserve the record for appellate review. The Motion, standing alone, fails to preserve any of the three issues. The matter relative to Issue number one was the subject of the hearing on the Motion. The former has been transcribed and is part of the certified record here on appeal. Hence, we will consider the first issue cognizable for review. The third issue recites the relief sought by appellant, and we would view any argument raised in support thereof to be a logical extension of that relating to Issue number one.
      Appellant sets forth as his second issue the enforceability of the District Attorney’s policy against recommending for A.R.D. persons striking occupied vehicles while driving under the influence. He argues that for the policy to be enforceable it must comport with the provisions of Pa.R.Crim.P. 6(c) which requires, inter alia, that the local rule be in writing. This subject policy is not in writing and is not published. Therefore, appellant reasons, the policy violates the Rule and is not enforceable.
      First, this argument is waived as it has not been preserved in the Motion to compel, was not the subject of any record discussion at the hearing on the Motion and the trial court does not refer to this matter, even peripherally, in its Opinion. Pennsylvania Rule of Appellate Procedure 302(a) does not permit an appellate court to consider an issue presented to it for the first time without initially raising it in the trial court.
      Secondly, Pa.R.Crim.P. 6(a) states that the term “local rule’’ includes the designation “policy" and must be “adopted or enforced by a court of common pleas to govern criminal practice and procedure.” However, the "policy" in this case is that of the District Attorney of Bucks County, not the Court of Common Pleas. Perforce, then, Pa.RXriin.P. 6(c) is inapplicable, and the argument fails in any event.

      . Appellant misrepresents in the Statement of his third issue as well as in the argument portion of his appellate Brief the trial court’s alleged statement that the District Attorney’s policy of denying A.R.D. to a person involved in a two-vehicle accident where the struck vehicle was occupied constituted an abuse of the prosecutor’s discretion. On the contrary, as its Opinion indicates, the trial court found no abuse of the District Attorney’s discretion pursuant to Commonwealth v. Lutz, supra, in refusing appellant’s application for A.R.D.


author: BROSKY, Judge: JOHNSON, Judge,

text:
    557 A.2d 363
    Carl C. MODRICK, Jr. v. The B.F. GOODRICH COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 13, 1988.
    Filed Feb. 16, 1989.

      James D. Belliveau, Pittsburgh, for appellee.
    Before BROSKY, JOHNSON and MELINSON, JJ.
   BROSKY, Judge:

This appeal lies from the judgment entered on a molded jury verdict which was amended to include an award for delay damages imposed solely upon appellant.

As its sole issue, appellant alleges that it should not be responsible for delay damages because it was not held liable for any delay in the case. Finding the award of delay damages to have been proper but not in conformity with newly enacted Pa.R.C.P. 238, as embodied in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), and interpreted by this court in Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988, en banc), we vacate the judgment entered on the molded verdict, as amended, and reverse and remand with directions. Our reasoning follows.

The record relates that appellee instituted this cause of action by filing a Complaint against appellant on November 13, 1984, alleging injuries growing out of a motor vehicle accident which occurred on April 15, 1983. The matter was placed at issue, certifying readiness for trial, on January 21, 1985. The parties conducted discovery, and the case was then listed for trial on the November 1986 trial list.

Trial commenced on December 4, 1986, with a verdict ultimately rendered on December 9, 1986, in the amount of sixty-six thousand dollars ($66,000.00), as molded by the trial court to reflect a forty percent reduction for the comparative negligence of appellee.

Following verdict, appellee filed a Petition requesting delay damages from November 13, 1984, the date on which the Complaint was filed, to the verdict date of December 9,

1986. Appellant filed a response and “New Matter” thereto opposing any award of damages for delay on the basis that it had engaged in no conduct which would justify the imposition of delay damages and alleging court calendar delay and appellee’s unreasonably high settlement demand as further reasons for its failure to make an earlier settlement offer.

On December 21, 1986, the trial court entered an Order amending the molded verdict of sixty-six thousand dollars ($66,000.00) to include an award of delay damages in the amount of sixteen thousand seven hundred eighty-three dollars ($16,783.00), for a total verdict of eighty-two thousand seven hundred eighty-three dollars ($82,783.00). This appeal followed the entry of judgment on the molded verdict as amended.

The trial court awarded delay damages apparently pursuant to a stipulation purportedly entered into by counsel for both parties. The sum and substance of the court’s rationale is set forth in its one-sentence Opinion as follows: “The Court entered an Order for delay damages without any hearing pursuant to stipulation filed by counsel for plaintiff and defendant that ‘Neither Modrick [appellee herein] nor BFG [appellant herein] requested any continuances, delays, or postponement of the case after it had been placed at issue.’ ”

On appeal, appellant argues that since the trial court, after hearing, found no delay in the ordinary course of the case attributable to either party, it should not be compelled to respond in delay damages. Newly enacted Rule 238, however, rejects this position. A fair reading of this new Rule in subsection (b)(1) thereof leads to the conclusion that where a defendant fails to make a settlement offer in compliance with the terms of the Rule and where both parties are determined to be free from fault in causing any delay in the normal course of the litigation by requesting any continuances or postponements, a defendant is nonetheless responsible for the payment of damages for delay.

In its Brief to this court, appellant launches a dual-faced attack in opposition to the assessment of delay damages against it. First, it contests the imposition of delay damages for the entire period between January 21, 1985, the date on which the case was placed “at issue”, and the verdict date of December 9, 1986, because the delay was caused by neither party. Instead, appellant attributes the delay for this period to the trial court for its inability to schedule the case until the November 17, 1986 call of the list, in “not permitting] jury selection to begin December 2, 1986 ... and [in] not allowpng] testimony to begin until December 4, 1986____” Appellant’s Brief, 7. Appellant phrases his rationale as follows:

To assess delay damages against Goodrich [appellee herein] when it was not responsible for the delay in the scheduling of the trial, the jury selection, or the testimony would penalize Goodrich without fault. In addition, it would violate the holding in Craig that liability by mere civil defendant status is not the law of Pennsylvania and cannot be the basis for awarding pre-judgment interest. Goodrich cannot be penalized for being a civil defendant in a court system that cannot or will not give civil litigants priority in its overall agenda.

Id.

Unfortunately for appellant, this precise argument makes the case for the imposition of delay damages against it under new Rule 238 despite the trial court’s determination that neither party contributed to any delay by requesting continuances or postponements subsequent to the matter being placed at issue. Elimination from the computation of delay damages the span of time between January 21, 1985, and the December 9, 1986 verdict date is contradistinct to the express mandate of the new Rule as set forth in subsection (b) thereof:

(b) The period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any,
(1) after which the defendant has made a written offer of
(i) settlement in a specified sum with prompt cash payment to the plaintiff, or
(ii) a structured settlement underwritten by a financially responsible entity,
and continued that offer in effect for at least ninety days or until commencement of trial, whichever first occurs, which offer was not accepted and the plaintiff did not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of either the specified sum or the actual cost of the structured settlement plus any cash payment to the plaintiff or
(2) during which the plaintiff caused the delay of the trial.

It is clear from the above that the newly enacted Rule does not permit the exclusion from the calculation of delay damages periods of delay for which no party is responsible due to extraneous administrative concerns. Under this new Rule, the exclusion of the time encompassing the period January 21, 1985, to December 9, 1986, from consideration of any fault-based delay is, at least implicitly, now disallowed. Subsection (b) is express in terms of allowable exclusions. Under subsection (b)(1), the requisite offer of settlement must be made in writing, maintained in effect for the period provided by the Rule, not accepted by the plaintiff and, finally, not exceeded by more than one hundred twenty-five percent (125%) of the ultimate verdict rendered. Subsection (b)(2) states that alternative exclusions may become applicable when the trial court determines that the plaintiff has caused some delay which has actually impeded the normal progress of the case towards trial. Therefore, the trial court was correct in awarding delay damages for the period between the “issue” date and the date of verdict

The second facet of appellant’s twin-pronged attack upon the trial court’s imposition of delay damages against it, despite a determination that both parties were fault-free, centers around appellant’s attempted, yet unsuccessful, settlement negotiations. Appellant alleges that the settlement process was rendered difficult because of appellee’s extraordinarily high initial demand, the lateness of this demand (approximately five weeks before trial) and the fact that the ultimate verdict rendered, as molded by the trial judge in the amount of sixty-six thousand dollars ($66,-000.00), was only thirty-two percent higher than appellant’s final offer of fifty thousand dollars ($50,000.00).

The “settlement history” of this case, as delineated in appellant’s Brief to this court, in its Answer and New Matter to Appellee’s Petition for delay damages and in its Brief in opposition to appellee’s request for delay damages, relates that counsel for appellant requested a settlement demand from counsel for appellee in the Spring 1986. This demand, in the amount of five hundred fifty thousand dollars ($550,000.00), was not made until October 28, 1986, approximately five weeks before the commencement of trial. Counsel for appellee advised that the lateness of the demand was due to difficulty in evaluating his client’s case. At a pre-trial conciliation held prior to the selection of the jury, this demand was reduced by one hundred thousand dollars ($100,000.00). In response, and for the first time since the initiation of suit, appellant offered to settle appellee’s claim for twenty-five thousand dollars ($25,000.00). This offer remained in effect up to the second day of trial when appellee reduced his demand to two hundred thousand dollars ($200,000.00). Appellant then countered with its second and final offer of fifty thousand dollars ($50,000.00) prior to return of the verdict.

Appellant’s contentions have been expressly addressed or may be fairly implied from the language of the new Rule. Subsection (b)(1) of this new enactment requires a defendant to make a written offer of settlement. The state of the record in this case does not permit us to conclude that the two offers were made in accordance with the strictures of this provision. The first offer was made at a pre-trial conciliation in court. The second offer came during mid-trial. The record does not evidence that either offer was in writing. Under either subsection (b)(1) of the current Rule or its predecessor subsection (e), an oral offer is not an acceptable mitigating factor and is tantamount to no settlement offer at all. Consequently, the trial court committed no error of law in concluding that an award of damages for delay in favor of appellee was proper.

Even assuming that the two offers had been made in writing, appellant’s two arguments in mitigation of damages — the failure or lateness of a demand on the part of appellee and, secondly, its manifestation of good faith in attempting to settle — find no support in the language of the new Rule. The imposition of a requirement that a plaintiff make a settlement demand upon a tortfeasor as a condition precedent to the latter’s obligation to make a reasonable offer in writing and that the failure to make such demand would preclude an award of delay damages or operate as a factor in mitigation of an award would run contrary to the twin purposes of new Rule 288 which are to alleviate delay in the courts and to encourage tortfeasors to settle meritorious claims expeditiously. See Comment following new Rule 238 and Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981). In a similar fashion, appellant’s plea of good faith based upon only a thirty-two percent differential between its final offer of fifty thousand dollars and the verdict figure of sixty-six thousand dollars fails to persuade in light of the express mandate of newly promulgated Rule 238(b) which authorizes the imposition of delay damages if the plaintiff fails to recover by verdict (as in this case) more than one hundred twenty-five percent (125%) of the offered settlement. Here, as appellant concedes, appellee recovered a verdict which exceeded appellant’s second and final settlement offer by one hundred thirty-two percent (132%).

We have already determined that the newly enacted Rule is applicable to the case at bar. See Ceresini, supra; see also at note 2, supra at 364-365. We are also mindful that newly promulgated Rule 238 in subsection (c) thereof and Craig do not require the trial court to hold a hearing. Instead, the court may determine the application for delay damages solely upon Petition and Answer. In the present case, we will consider the trial court to have predicated its determination that delay damages are awardable to appellee based upon this latter procedure, even though the trial court, in its Opinion, states that this finding was made pursuant to stipulation of the parties. As we have indicated at note 1, supra at 364, we are precluded from considering any of the facts so stipulated unless they appear elsewhere in the record because the stipulation, itself, was not filed of record. Nevertheless, as noted several times in our discussion, the trial court properly concluded that appellee was entitled to damages for delay.

However, because we are unable to ascertain from the language of the trial court’s opinion whether the award of delay damages was calculated from January 21,1985, the date on which the case was placed at issue, or whether the court assessed delay damages to run from November 13, 1984, the date on which appellee’s Complaint was filed, we must remand for clarification and possible adjustment of the award in that regard. Subsection (a)(2)(i) of new Rule 238 states that in a case where the action commenced prior to August 1, 1989, delay damages shall be awarded, as is pertinent here, from the date the plaintiff first filed its complaint.

Upon remand, if the trial court finds that the award reflects only the period from January 21, 1985, to verdict, it shall amend the award in accordance with the directive of new Rule 238(a)(2)(i). Additionally, we remind the trial court that the applicable rate of interest at which delay damages are to be calculated has been amended under new Rule 238. Former Rule 238, in subsection (a)(1), provided that delay damages were to be calculated at the rate of ten percent (10%) per annum not compounded. Now, however, “[djamages for delay shall be calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus one percent, not compounded.” Pa.R.C.P. 238(a)(3). Again, on remand, the trial court shall calculate its delay damage award according to this new formula. This recomputation must be accomplished regardless of whether the initial award is to be adjusted to conform to the provisions of new Rule 238(a)(2)(i).

The decision to remand instantly for compliance with the new Rule is no less consistent with our recent holding in Ceresini, supra, where we said that “the new Rule 238 is a specific promulgation of the Supreme Court’s intention as set forth in the Craig opinion.” 380 Pa.Superior Ct. at 418, 552 A.2d at 259. This court continued:

Rule 238 is quite complex and differs from the prior rule in a number of respects including the monetary formula for the calculation of damages. We believe the court must consider the entire rule in order to correctly ascertain delay damages[,] and the court below must consider it in assessing damages.

Id., 380 Pa.Superior Ct. at 418, 552 A.2d at 259.

Hence, since delay damages, albeit proper here, have not been determined in accordance with this new Rule, we reverse and remand.

Judgment entered on Order amending molded verdict to include award of delay damages is vacated. Matter is reversed and remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

JOHNSON, J., files a dissenting statement.

JOHNSON, Judge,

dissenting:

Although I joined in the majority opinion in Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988), I am now convinced that our interpretation of newly-promulgated Rule 238 was, and is, a mistake. In Ceresini, we concluded that the new rale must be applied to all cases in which damages for delay have not been “finally” determined. We further held that in all cases where the damages had not been “finally determined,” remand was required for application of all the provisions of the new rule.

I have now concluded that our supreme court could not possibly have intended such a result, at least on the facts presented here.

In this case, the trial court did determine delay damages. This case was submitted to our panel without oral argument. There is no suggestion that the plaintiff was responsible for any delay. The only issue raised was whether damages could be assessed without a showing of fault on the part of the defendant.

Where there is no dispute as to the facts, and where the appellant has not contended that the plaintiff caused delay, I conclude that the judgment on the molded verdict should remain undisturbed.

I recognize my position is inconsistent both with the holding of our court in Ceresini and my own position in that case. Nevertheless, I find myself compelled to dissent.

      . Although referred to by the trial court as having been “filed by counsel", the subject stipulation was never filed in the trial court and, consequently, does not appear as part of the record certified to this court. We note, further, that a document bearing the label “Stipulation” is included in the reproduced record but is undated and unsigned by counsel for either party. As a matter of course, we are precluded from considering any of the “facts” so "stipulated” unless they appear elsewhere in the verified record.

      . This Rule, newly promulgated on November 7, 1988, provides in subsection (f) as follows: “This rule shall apply to actions pending on or after the effective date of the rule in which damages for delay have not been determined.”
      In Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988), we stated:
      A reading of Craig v. Magee Memorial Rehabilitation Center, [512 Pa. 60, 515 A.2d 1350 (1986) ], reveals the intent of the Supreme Court that its decision (involving Rule 238) should apply to cases ‘pending in the courts of this Commonwealth’ where the issue of the delay damage aspect of the damage award has been preserved. Since we must assume that the new Rule 238 is simply the embodiment of the changes contemplated by our Supreme Court in Craig we see no reason why the scope of its effectiveness should be different from that enunciated in Craig---- Not to apply new Rule 238 to cases pending in the appellate courts where the propriety of delay damages entered by the court below is at issue would require a strained reading of new Rule 238 which states that it applies to ‘actions pending on or after the effective date of this Rule in which damages for delay have not been deterrhined.'____ Unless delay damages have not been initially determined by the court below, there would be no basis on which the matter could be before us for review. The appropriateness of the award of delay damages is the only issue before us in this case. In our opinion, the Rule applies to all actions pending at the trial level, or on appeal, in which the issue of delay damages has been preserved and not finally determined____

        Id., 380 Pa.Superior Ct. at 418-419, 552 A.2d at 258; emphasis in text; citation omitted.

      . As an aside, appellant’s insistence that this case should have been given a priority listing for trial is inconsistent with Pa.R.C.P. 214 which lists the order of preference in which certain classes of cases shall be assigned to trial lists. The matter at bar is not of the class of cases so enumerated in the Rule.