author: McEWEN, Judge: SPAETH, President Judge, CIRILLO, Judge,

text:
    506 A.2d 1312
    COMMONWEALTH of Pennsylvania, Appellee, v. Chester MUROSKI. Appeal of James PAGE.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1985.
    Filed March 10, 1986.

      John M. Eakin, District Attorney, Carlisle.
    Before SPAETH, President Judge, and BROSKY, ROWLEY, WIEAND, McEWEN, CIRILLO, OLSZEWSKI, MONTEMURO and TAMILIA, JJ.
   McEWEN, Judge:

We are here called upon to determine whether a private complainant has standing to appeal from a trial court order sustaining the disapproval by the district attorney of a private criminal complaint and, if so, whether, in the instant case, the trial court abused its discretion or committed an error of law by concluding that the district attorney properly exercised his discretion in disapproving the private criminal complaint filed by appellant.

Appellant, James Page, an inmate at the Huntingdon State Correctional Institution, filed a private criminal complaint against Chester B. Muroski on January 7, 1983, alleging that Mr. Muroski had, fifteen months earlier, on August 24, 1981, at the Camp Hill State Correctional Institution, committed the crimes of criminal conspiracy, criminal solicitation, threats and other improper influence in official and political matters, obstructing administration of law or other governmental function and official oppression. The private complaint was disapproved five months later by the Cumberland County District Attorney’s Office on June 7, 1983, because the complaint did not set forth any probable cause. Appellant then filed his private complaint with the Court of Common Pleas of Cumberland County pursuant to Pa.R.Crim.P. 133(B)(3)(ii). The trial court reviewed the private complaint and affidavit, concluded that the complaint failed to state any probable cause, and likewise disapproved of the filing of the complaint, thus sustaining the decision of the district attorney. We conclude that appellant does have standing to bring this appeal and that the trial court properly concluded that the district attorney did not abuse his discretion.

The Commonwealth asserts that appellant has no standing to bring this appeal and relies upon Commonwealth v. Malloy, 304 Pa.Super. 297, 450 A.2d 689 (1982), to support its assertion. Malloy is, however, neither controlling nor helpful to the Commonwealth since it presented a fundamentally different situation. The district attorney in Malloy approved a private criminal complaint and, after a preliminary hearing, the district justice concluded that the district attorney had established a prima facie case. Nonetheless, the trial court in Malloy, after it had conducted a study of the transcript of the testimony of the preliminary hearing, in response to habeas corpus proceedings initiated by the defendants, determined that a prima facie case had not been established and directed that the charges be dismissed and the defendants discharged. When the district attorney did not appeal from the order dismissing the charges, the private complainants undertook appeal proceedings. The Superior Court ruled that a victim/complainant is not a party to the criminal proceedings and proceeded to quash the appeal. The Court in Malloy held that the district attorney, as the representative of the state, is the party plaintiff in a criminal prosecution, while the victim/complainant is merely a witness. The victim of an alleged crime, therefore, has no standing to appeal a judicial determination that a complaint must be dismissed by reason of a failure by the Commonwealth to establish a prima facie case.

Unlike Malloy, the question here is not whether a private complainant has standing to appeal after the district attorney has approved the complaint and a trial court has determined that no prima facie case has been established. Rather, the district attorney here did not approve the private criminal complaint and there has been no judicial determination regarding the insufficiency of the case against Mr. Muroski. Thus, Malloy is distinguishable from the matter which we presently consider.

We also distinguished Malloy in In re: Wood, 333 Pa.Super. 597, 482 A.2d 1033 (1984) and held that an individual— who, pursuant to Pa.R.Crim.P. 133(B)(3)(ii), files a complaint with the Common Pleas Court for the approval of that court — is a party to an action seeking an order directing the district attorney to initiate a prosecution and, thus, is a party with a right to appeal from an order of the trial court rejecting his criminal complaint. Id., 333 Pa.Superior Ct. at 599-601, 482 A.2d at 1035. We here repronounce that rule as we conclude that appellant was a party to the instant action and thus has standing to appeal the decision of the trial court that determined the district attorney had properly disapproved the private criminal complaint. See Pennsylvania Constitution Art. V, Sec. 9; 42 Pa.C.S. § 5105; Pa.R.A.P. 501. The motion of the Commonwealth to quash the appeal is, therefore, denied.

We must now determine whether the trial court abused its discretion or committed an error of law when it decided the prosecutor had not acted improperly in disapproving the private complaint of appellant. No one would dispute that the district attorney has broad discretion in deciding whether to charge a person with a criminal offense. “ ‘This discretionary power of the District Attorney in determining whether prosecution shall be commenced or maintained may well depend on matters of policy wholly separate and apart from the existence of probable cause. For this reason, the courts have been wary of interfering with or attempting to supervise the district attorney in the exercise of his discretion in controlling criminal prosecutions.’ ” In re: Wood, supra, 333 Pa.Superior Ct. at 601-03, 482 A.2d at 1036; quoting Commonwealth v. Eisemann, 276 Pa.Super. 543, 546, 419 A.2d 591, 592 (1980). See U.S. v. Cox, 342 F.2d 167, 171 (5th Cir.1965), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700. See also A.B.A. Standards Relating to the Prosecution Function and the Defense Function § 3.4.

Our determination of whether the district attorney abused his discretion must necessarily commence with an examination of the private criminal complaint which, in this instance, is composed of two completed forms:

The decision of the district attorney appears at the top of the first page with the note that the complaint is disapproved because there is “no probable cause”.

Pa.R.Crim.P. 132(6)(a), which sets forth the quite explicit prerequisite that a criminal complaint set forth such a summary of the facts that a defendant would be apprised of the nature of the offense charged, provides:

RULE 132. Contents of Complaint
* * * Sic * *
(6)(a) In a court case, [every complaint shall contain] a summary of the facts sufficient to advise the defendant of the nature of the offense charged, but neither the evidence nor the statute allegedly violated need be cited in the complaint, nor shall a citation of the statute allegedly violated, by itself, be a sufficient compliance with this subsection____

Pa.R.Crim.P. 132(6)(a).

The trial court, pursuant to Pa.R.Crim.P. 133(B)(3)(ii), reviewed the private complaint and affidavit of appellant and disapproved the complaint because it was insufficient as it failed to aver facts of criminal activity.

[C]areful consideration of the affidavit discloses that it is insufficient because it consists solely of generalities without specifics. The complaint likewise displays a complete failure to aver any facts supporting the alleged criminal activity.
We have reviewed the complaint and affidavit as we are required to do pursuant to Pa.R.Crim.P. 113(B)(3)(ii) [sic] and conclude that the district attorney’s disapproval of the complaint was warranted. We, therefore, likewise disapprove of the filing of this complaint.

Trial Court Opinion, p. 1-2.

We agree with the conclusion of the trial court that the complaint and supporting affidavit are fatally defective due to the absence of any factual averments concerning criminal activity by Mr. Muroski. It is incumbent upon a private complainant to provide the district attorney with sufficient facts to enable him to make an informed decision regarding whether to permit the commencement of criminal proceedings. While some investigation into the allegations of a properly drafted complaint may be necessary in order to enable the district attorney to properly exercise his discretion concerning the decision whether to approve the complaint, such investigation is not necessary where the allegations of criminal conduct contained in the complaint are unsupported by factual averments. Both the district attorney and the trial court have a responsibility to prevent the misuse of judicial and prosecutorial resources in pursuit of futile prosecutions. In re: Wood, supra, 333 Pa.Super. at 603-04, 482 A.2d at 1037. The facts to support the allegations of criminal activity, if there are any, are either known by the private complainant or are ascertainable by him. The trial court is not required by Pa.R.Crim.P. 133(B)(3)(ii) to grant a hearing on the matter to determine if there were facts, undisclosed by the appellant but known to him, to support the allegations. In re: Wood, supra, 333 Pa.Superior Ct. at 601-03, 482 A.2d at 1036; Commonwealth v. Eisemann, supra, 276 Pa.Super. at 545 n. 4, 419 A.2d at 592 n. 4; Petition of Piscanio, 235 Pa.Super. 490, 495, 344 A.2d 658, 661 (1975).

Thus, we find that the ruling of the trial court was not an abuse of discretion and, thereby, of course, conclude that the district attorney did not abuse his discretion when he disapproved the private criminal complaint of appellant. We, therefore, affirm the order of the distinguished President Judge Dale F. Shughart.

Order affirmed.

SPAETH, President Judge, files a concurring and dissenting opinion.

CIRILLO, J., files dissenting opinion.

ROWLEY, J., joins CIRILLO, J., dissenting opinion.

SPAETH, President Judge, participated in this decision before the expiration of his term on the Court.

SPAETH, President Judge,

concurring and dissenting:

I agree with the majority that a private complainant has standing to appeal a trial court’s decision upholding a district attorney’s refusal to approve the complaint. I disagree with the majority, however, regarding the scope of the district attorney’s responsibility to review the complaint, and also, regarding the scope of the trial court’s review on appeal from the district attorney’s refusal to approve the complaint.

The majority holds that a privant complainant must allege sufficient facts to enable the district attorney to make an “informed decision” on whether to prosecute. Maj. at 1317. I find this requirement equivalent to a requirement that a private complaint must allege probable cause, and in my opinion, that is too strict a requirement. I should hold that the district attorney may be obliged to investigate a private complaint even though the complaint does not allege sufficient facts to show probable cause to prosecute; it is enough, I believe, if the complaint states the general nature and time and place of the offense.

The majority further holds that the trial court, on appeal from the district attorney’s refusal to approve the private complaint in this case, had only to determine whether the complaint alleged probable cause. I believe that the court should have determined, either by hearing or upon affidavit, whether the district attorney investigated the complaint, and then, having made that determination, should further have determined whether the district attorney’s refusal to approve the complaint was a gross abuse of discretion. I should therefore remand this case to the trial court with instructions to make those determinations.

Appellant’s Standing to Appeal

I join in so much of the majority’s opinion as holds that appellant has standing to appeal the trial court’s decision upholding the district attorney’s refusal to approve appellant’s private criminal complaint.

The District Attorney’s Duty to Investigate

-a-

The majority holds that

[i]t is incumbent upon a private complainant to provide the district attorney with sufficient facts to enable him to make an informed decision regarding whether to permit the commencement of criminal proceedings. While some investigation into the allegations of a properly drafted complaint may be necessary in order to enable the district attorney to properly exercise his discretion concerning whether to approve the complaint, such investigation is not necessary where the allegations of criminal conduct contained in the complaint are unsupported by factual averments.
Maj. at 1317.

While this statement does not in so many terms require that a private complaint must allege probable cause, I am unable to interpret it in any other way. In the majority’s view, “investigation [of the allegations of a private criminal complaint] is not necessary” unless the complaint alleges “sufficient facts” to justify a decision to “commence[] criminal proceedings.” Since criminal proceedings may be commenced only upon probable cause, see American Bar Association Standards for Criminal Justice, The Prosecution Function (2d ed. 1982) § 3-3.9, it follows that, according to the majority, a district attorney’s responsibility upon receipt of a private complaint is limited to reading the complaint and determining whether it alleges probable cause to prosecute; only if the complaint does allege probable cause is the district attorney obliged to investigate the complaint. In my view, this imposes too strict a requirement on a private complainant, and takes too limited a view of a district attorney’s responsibilities.

When a district attorney receives a private criminal complaint, the issue of whether the complaint states probable cause is a pure issue of law; its resolution in no sense involves any exercise of the district attorney’s discretion. In contrast, the issue of what to do about the complaint— whether to approve it, disapprove it, or investigate its allegations — necessarily involves an exercise of the district attorney’s discretion. This is true of any complaint, whether the complaint does or does not state probable cause, and whether it has been filed by a private citizen or a police officer.

It used to be that the initiation of a prosecution was a matter for the victim, or his family or friends. However, with the acceptance of the idea that the criminal law, unlike, for example, the law of contracts or property, is to vindicate public rather than private interests, this situation was fundamentally changed. Now we require that the decision to prosecute or not be made by the district attorney, as a responsible public official trained in the law. The private prosecution, or complaint, is only a sort of “safety valve” for those situations where the district attorney does not act. In this way, we believe, we gain some assurance that both the rights of the accused and of the public will be protected. Thus, among the most important of the district attorney’s responsibilities are the responsibilities to investigate complaints, determine whether there is substance to them, and determine whether a prosecution should be initiated. See generally American Bar Association Standards for Criminal Justice, The Prosecution Function (2d ed. 1982) §§ 3-3.1 and accompanying commentary; (although prosecutor ordinarily relies on police for investigation, he has “an affirmative responsibility to investigate suspected illegal activity when it is not adequately dealt with by other agencies”); State ex. rel. Koppers v. International Union of Oil, Chemical and Atomic Workers, — W.Va. —, 298 S.E.2d 827 (1982) (discussing role of prosecuting attorney); see also, People v. Pohl, 47 Ill.App.2d 232, 197 N.E.2d 759 (1964) (prosecuting attorney must investigate facts and determine whether crime has occurred); State v. Graves, 346 Mo. 990, 144 S.W.2d 91 (1940) (prosecuting attorney may not close eyes to notorious law violations). It is these responsibilities, in combination with the confidence we repose in the district attorney as a responsible public official, that underlie, and explain, our decisions that when a district attorney exercises his discretion not to prosecute, we will disturb his decision only when it represents a gross abuse of discretion.

The district attorney’s responsibility to investigate a complaint is peculiarly demanding in the case of a private complaint. For a private complaint, by reason of the very fact that it is private, is likely to be inartfully expressed. Investigation may nevertheless disclose that a crime was committed, the complaint not disclosing that fact only because the complainant did not know how to express it. Therefore, upon receiving a private criminal complaint, the district attorney may not, as the trial court held, and as the majority holds, only look to see whether the complaint states probable cause, and if it does not, disapprove it. The district attorney must further ask whether, even though the complaint does not state probable cause, it warrants some investigation. Of course, after such an investigation the district attorney may still decide to disapprove the complaint, for the investigation may disclose, not that the complaint is inartfully expressed, but that it is without substance; or there may be other reasons that warrant a decision by the district attorney, in the exercise of his discretion, not to prosecute.

Our rules of criminal procedure are consistent with these principles, for they require only that a complaint contain “[i]n a court case, a summary of the facts sufficient to advise the defendant of the nature of the offense charged ...” Pa.R.Crim.P. 132(6)(a).

Our cases hold that “a complaint or information must contain all the essential elements of the offense sought to be charged, and, if it fails in this respect, it is not sufficient that the indictment supply them, because a defendant should not be required to answer a charge different from, and unrelated to, the one for which he was arrested and held to bail.” Commonwealth v. Musto, 348 Pa. 300, 302-03, 35 A.2d 307, 309 (1944) (STERN, J.). Accord: Harger v. Commonwealth, Department of Transportation, 17 Pa.Cmwlth. 142, 330 A.2d 883 (1975). See also Art. I, sec. 9, of the Pa. Const. (“In all criminal prosecutions the accused hath a right ... to demand the nature and cause of the accusation against him____”). However, while a complaint used to institute a criminal proceeding must state the offense committed by the accused, and the general nature and time and place of the offense, it need not set forth the charges with the particularity of an indictment. Commonwealth ex rel. Garland v. Ashe, 344 Pa. 407, 26 A.2d 190 (1942); Commonwealth v. Carson, 166 Pa. 179, 30 A. 985 (1895); Commonwealth v. Moon, 174 Pa.Super. 334, 101 A.2d 147 (1953); Commonwealth v. Ginsberg, 143 Pa.Super. 317, 18 A.2d 121 (1940). “The purpose of a preliminary written charge ... is to inform the defendant as to the offense with which he is charged. . . . The offense may be described by employing generic terms or in words by which the crime ‘is designated in the common language of the people’ ”. . . . Commonwealth ex rel. Jenkins v. Costello, 141 Pa.Super. 183, 185, 14 A.2d 567, 568 (1940). Accord: Commonwealth v. Grego, 116 Pa.Super. 295, 176 A. 550 (1935); Commonwealth v. Miller and Burke, 77 Pa.Super. 469 (1921); Commonwealth v. Campbell, 22 Pa.Super. 98 (1903). As stated in Grego, “ ‘The only question to be considered [as to the sufficiency of the complaint] is whether the written accusation [the] defendant gave bail to answer sufficiently informed her that she might be put on trial for the crime charged in the indictment.’ ” 116 Pa.Super. at 296, 176 A. at 551, (citation omitted).
Commonwealth v. Wilkinson, 278 Pa.Super. 490, 497-98, 420 A.2d 647, 650-651 (1980) (footnote omitted).

-b-

In my view, the district attorney should have investigated appellant’s complaint. The majority is of course entirely correct that the complaint fails to allege probable cause. The complaint is not, however, entirely devoid of factual allegations. Two persons are identified (Chester B. Muro-ski and R.M. Marks), a date is stated (August 24, 1981), and a place (the State Correctional Institution at Camp Hill), from which, the affidavit discloses, appellant is filing the complaint as an inmate. The gist of the complaint appears to be that Chester B. Muroski, “acting in his official capacity”, “threatened unlawful harm to R.M. Marks” in order to have Marks “terrorize” appellant and “Physically] inter-fer[e] [with appellant’s] right to freedom of speech and mail.” I believe these allegations, meager as they are, were adequate to “state the offense committed by the accused, and the general nature and time and place of the of-fense____” Commonwealth v. Wilkinson, supra.

Of course, there may be no substance to the allegations; they may very well be entirely false, and nothing I say in this opinion intimates the least confidence in them. The issue, however, at least as I see it, is whether a district attorney receiving the complaint would be justified in concluding, as the trial court and the majority have concluded, that because the allegations do not state probable cause, no investigation was warranted. I freely acknowledge that I have found this a particularly difficult issue, and in resolving it differently the majority may well have the better of the argument. Nevertheless, I have myself been persuaded to the conclusion that the complaint was sufficient to require the district áttorney to investigate because of an additional fact not so far mentioned that gives this case a particular dimension. We may take judicial notice of the fact that on the date the alleged criminal activity occurred, Chester B. Muroski was the District Attorney of Luzerne County, see 105 Pennsylvania Manual at 510, and that when the complaint was filed, he was a judge on the Court of Common Pleas of that county, having been elected on November 3, 1981, see 106 Pennsylvania Manual at 441. Thus, the situation presented to the District Attorney of Cumberland County, when appellant’s complaint was filed, was that an inmate of a state correctional institution appeared to be alleging some sort of assaultive conduct by one R.M. Marks, and to be further alleging that this conduct was attributable to the former District Attorney, who had become a judge of the Court of Common Pleas of Luzerne County. I have already commented upon the confidence that our system of criminal justice reposes in the district attorney as a responsible public official. To deserve that confidence, a district attorney “should avoid the appearance or reality of a conflict of interest with respect to his official duties.” ABA Standards, supra, § 3-1.2. “It is of the utmost importance that the prosecutor avoid participation in a case in circumstances where any implication of partiality may cast a shadow over the integrity of his office.” Id., Commentary; Commonwealth v. Miller, 281 Pa.Super. 392, 422 A.2d 525, (1980) (en banc) (we rely upon the integrity of district attorneys not to participate in prosecutions where there would be appearance of impropriety); Commonwealth v. Toth, 455 Pa. 154, 314 A.2d 275 (1974) (district attorney holds office of unusual responsibility and must exercise duties with complete impartiality); Commonwealth v. Dunlap, 474 Pa. 155, 377 A.2d 975 (1977) (opinion in support of reversal) (appearance of impropriety if district attorney represents victim of crime against defendant in civil proceedings). If one district attorney were to disapprove a private complaint, out-of-hand and with no investigation,, simply because it was against an individual who had been another district attorney and had become a judge, these precepts would be violated. I do not suggest that that is what happened here. By its affirmance of the trial court’s order, however, the majority fails to dispel any possible appearance of such an impropriety.

The Trial Court’s Responsibility

It may very well be that the district attorney did make an investigation of appellant’s complaint, or that even if he did not, he had sufficient reasons for not approving the complaint. The difficulty is that we do not know the basis of the district attorney’s refusal to approve the complaint. The reason we do not know is because the trial court misconceived its function on appellant’s appeal from the district attorney’s refusal to approve the complaint — a misconception given precedential force by the majority’s opinion.

The issue before the trial court was whether in refusing to approve the complaint the district attorney had grossly abused his discretion. See In re Wood, 333 Pa.Super. 597, 602, 482 A.2d 1033, 1036 (1984), quoting Commonwealth v. Eisemann, 276 Pa.Super. 543, 545-47, 419 A.2d 591, 592-93 (1980); see also Commonwealth v. Williamson, 298 Pa.Super. 81, 444 A.2d 669 (1982). The trial court, however, looked only to see whether the complaint alleged probable cause. So far as the record discloses at least, the trial court conducted no hearing; thus, in support of its order, the trial court stated:

[Cjareful consideration of the affidavit discloses that it is insufficient because it consists solely of generalities without specifics. The complaint likewise displays a complete failure to aver any facts supporting the alleged criminal activity.

From this it is evident that the trial court regarded the issue of abuse of discretion and the issue of probable cause as the same issue under different names — in other words, that the court believed that if a private criminal complaint fails to aver facts that if accepted, establish probable cause to believe that a crime has been committed, then a district attorney may, for that reason alone, disapprove the complaint. This is the position now adopted by the majority.

The issues of probable cause and abuse of discretion, however, are not the same. As I have attempted to explain, even though a complaint does not allege probable cause, still, the district attorney may have had a responsibility to investigate the complaint. Therefore, in my view, among the questions the trial court must ask, on appeal from a district attorney’s refusal to approve a private complaint, are: Does the complaint, although not alleging probable cause, nevertheless allege sufficient facts to “state the offense committed by the accused, and the general nature and time and place of the offense”? Commonwealth v. Wilkinson, supra. If the complaint does allege such facts, did the district attorney investigate? If he did, was his decision not to prosecute a gross abuse of discretion? And finally, if the district attorney did not investigate, was his decision not to prosecute without making an investigation a gross abuse of discretion.

I do not mean to suggest that the trial court must conform to a particular procedure. Whether after hearing or upon affidavit, however, the court should make a determination on each of these questions.

Neither do I mean to suggest that the trial court is to establish rigid guidelines by which a district attorney’s conduct is to be judged. It is beyond dispute that a district attorney has broad discretion, Commonwealth v. Eisem-ann, 308 Pa.Super. 16, 20, 453 A.2d 1045, (1982), and it is emphatically not a reviewing court’s function either to second-guess or to dictate a district attorney’s decisions. It is equally true, however, that the court does have the power, and therefore the responsibility, to assess the district attorney’s conduct against the standard of gross abuse of discretion. Commonwealth v. Eisemann, supra.

Obviously, what constitutes a gross abuse of discretion cannot be stated by a simple formula. Everything will depend on the particular facts of the case and the district’s attorney’s articulated reasons for acting, or failing to act, in the particular circumstances. For example, a court may find a gross abuse of discretion in a district attorney’s pattern of discriminatory prosecution, see, e.g., Yick v. Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); United States v. Falk, 479 F.2d 616, 618 (7th Cir.1973); People v. Utica Daw’s Drug Co., 16 App.Div.2d 12, 225 N.Y.S.2d 128, 4 A.L.R.3d 393 (1962); or in retaliatory prosecutions based on personal or other impermissible motives, see, e.g., Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1924); United States v. Steele, 461 F.2d 1148, 1152 (9th Cir.1972). Similarly, a district attorney may be found to have grossly abused his discretion for his blanket refusal to prosecute for violations of a particular statute, Nader v. Saxbe, 497 F.2d 676, 679 (D.C.Cir.1974), or for refusing to prosecute solely because the accused is a public official, Commonwealth v. Komatowski, 347 Pa. 445, 450, 32 A.2d at 905, 908 (1943).

The fact that it is difficult to define gross abuse of discretion does not, however, relieve the court from the obligation to undertake a definition. As the court in Medical Committee for Human Rights v. SEC, 432 F.2d 659, 673 (D.C.Cir.1970), stated: “The decisions of this court have never allowed the phrase ‘prosecutorial discretion’ to be treated as a magical incantation which automatically provides a shield for arbitrariness.” See also Nader v. Saxbe, supra at 680 n. 19 (“The law has long recognized the distinction between judicial usurpation of discretionary authority and judicial review of the statutory and constitutional limits to that authority.”). See generally Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv.L.Rev. 1521 (1981) (noting the “evils of broad discretion” and calling for increased judicial review of prosecutorial decisions); Note, Reviewability of Prosecutorial Discretion: Failure to Prosecute, 75 Colum.L.Rev. 130, 143 (1975) (expanding the courts’ scope of review of prosecutor’s decisions is not tantamount to telling the prosecutor how to conduct his office).

I should therefore remand to the trial court with instructions to determine whether in refusing to approve appellant’s complaint, the district attorney grossly abused his discretion.

CIRILLO, Judge,

dissenting:

I respectfully dissent. The majority’s conclusion that appellant has standing to pursue prosecution is based solely upon a perceived distinction between this case and Commonwealth v. Malloy, 304 Pa.Super. 297, 450 A.2d 689 (1982), a distinction which in reality is of no consequence.

In Malloy, we held that a private criminal complainant has no standing to appeal absent the district attorney’s consent. It so happened that in Malloy, the district attorney originally approved the complaint, but when it was subsequently dismissed by the court for failure to make out a prima facie case, the district attorney chose not to appeal that decision. It was procedurally unique in the sense that it did not involve the more typical situation wherein, after the district attorney dismisses the complaint, it is filed by the complainant for judicial review. By the majority’s analysis, Malloy’s conclusion that “appellant, as victim or witness, lacks ‘party’ status in this criminal prosecution [and thus] has no standing to appeal”, only applies to cases bearing the same procedural posture.

Read in any light, Malloy was never intended to be limited in this way. Regardless of any court action on a district attorney’s disposition of a private complaint, the fact remains that prosecutions are sought to rectify injuries to society. The aggrieved party, if one exists, is the Commonwealth. The victim of the alleged crime may pursue a civil remedy.

Admittedly, the issue in Malloy was phrased to embrace the procedural posture of the case: “whether a victim/complainant has standing to appeal, without the consent of the district attorney, a judicial determination dismissing his complaint.” However, the balance of the opinion contains nothing to support the conclusion that a different procedural setting would dictate a contrary result. Indeed, we summarized the law of various jurisdictions only to support our very general conclusion that victims have no standing to appeal, period: “[A] citizen lacks standing to contest the policies of the prosecuting attorney when he himself is neither prosecuted nor threatened with prosecution ... in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprose-cution of another.” Id., 304 Pa.Superior Ct. at 305, 450 A.2d at 693, quoting Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536, 541 (1973).

Clearly, if Malloy stands for one principle, it is that the district attorney has exclusive authority to determine whether prosecution is called for in a given case. This authority is tempered only by the complainant’s right to have the decision reviewed by a court of common pleas so any abuse of discretion by the district attorney may be discovered. Such review will be important to a complainant when the district attorney has in fact abused his discretion, but nonetheless, the court of common pleas’ determination is the end of the line for the complainant on the criminal side.

The majority seems to attach great weight to the fact that the court of common pleas in Malloy went so far as to establish that no prima facie case existed, whereas the reviewing court in this case found only that the complaint did not show probable cause, i.e., the sufficiency of the case itself was not considered. In my view, this indicates only that the Malloy complainant had a greater appealable interest; at least there the district attorney found enough probable cause to initiate prosecution. In any event, the complainant’s interest stretches only to the point of securing a judicial determination that the district attorney did not abuse his discretion in disposing of the complaint.

The same reasoning compels me to the conclusion that In re Wood, 333 Pa.Super. 597, 482 A.2d 1033 (1984), was wrongly decided, it too being based upon a false premise. The Wood court properly stated Malloy’s holding that private complainants lack standing, but then by a tortured analysis found such standing anyway. In Wood, the district attorney chose not to pursue prosecution, whereupon the complainant filed his private complaint with the court of common pleas for review. Our Court reasoned that since complainant himself filed the complaint, he was a “party below” and could therefore take an appeal. The result is nothing less than a procedural absurdity: the Malloy -type complainant, who does not have to file the complaint himself because the Commonwealth initially chose to prosecute, must hope that the district attorney chooses to appeal if the case is subsequently dismissed; the Wood -type complainant, in contrast, has the right to appeal simply because the district attorney’s decision not to prosecute forced the complainant to file the complaint with the court on his own. In short, the right to appeal hinges on nothing more than the mere happenstance of the order in which the events unfold.

A complainant is only a “party below” as concerns the judicial review he himself initiated, which is separate and distinct from subsequent criminal prosecution no matter how the caption reads. In the actual prosecution, the complainant will never be anything more than a prosecuting witness, irrespective of his right to seek judicial review of the district attorney’s disposition of the complaint. In my view, when the case is “Commonwealth versus The Accused”, two parties may take an appeal: the Commonwealth, and the accused.

Accordingly, I dissent.

ROWLEY, J., joins.

      . Pa.R.Crim.P. 133(B)(3)(ii) provided as follows:
      Rule 133. Complaint: Police and Private Affiant
      ******
      (B) PRIVATE COMPLAINTS:
      ******
      (3) If the attorney for the Commonwealth
      ******
      (ii) disapproves the complaint, he shall state his reasons on the complaint form and return it to the affiant. Thereafter the affiant may file the complaint with a judge of a Court of Common Pleas for approval or disapproval.
      This Rule was rescinded effective January 2, 1985. The pertinent text of the now rescinded Pa.R.Crim.P. 133(B)(3)(ii) currently appears as Pa.R.Crim.P. 133(b)(3).

      . The private complainant whose criminal complaint is disapproved by the district attorney and the Court of Common Pleas for failure to set forth sufficient facts is, of course, not precluded from filing a subsequent, amended criminal complaint which does allege sufficient facts. See e.g., Commonwealth v. Eisemann, 308 Pa.Super. 16, 453 A.2d 1045 (1982); Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980).


source: Caselaw Access Project

author: ROBERTS, Judge:

license: Public Domain

text:
    506 A.2d 1324
    COMMONWEALTH of Pennsylvania v. Thomas Joseph GAMBER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed March 31, 1986.

      William P. Wismer, Media, for appellant.
    Ann A. Osborne, Assistant District Attorney, Radnor, for Com., appellee.

      Before WIEAND, CIRILLO and ROBERTS, JJ.
   ROBERTS, Judge:

This is a direct appeal from the judgment of sentence of the Delaware County Court of Common Pleas finding appellant Thomas Joseph Gamber guilty of driving under the influence of alcohol in violation of 75 Pa.C.S.A. § 3731. Gamber presents four principal issues on appeal: (1) whether the trial court erred in allowing the Commonwealth to amend its information to include an averment of a prior conviction, (2) whether the results of an intoxilyzer test should have been suppressed, (3) whether the verdict was supported by the weight and sufficiency of the evidence, and (4) whether Pennsylvania’s drunk driving law is unconstitutional. Concluding that these claims of error are un-compelling, we affirm.

I.

As to appellant’s first claim, the record reveals that the Commonwealth moved to amend the information to include appellant’s prior conviction one day before trial. The amendment enabled the Commonwealth to charge Gamber as a second time offender and seek a minimum sentence of thirty days incarceration as opposed to a two day minimum for a first time offender. 75 Pa.C.S.A. § 3731(e)(1)(i), (ii). Appellant argues that by permitting such amendment, the trial court disregarded Pa.R.Crim.P., Rule 229 which forbids an information to be amended where an additional or different offense is charged.

In Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985), a unanimous en banc panel of this court held that under 75 Pa.C.S. § 3731 the Commonwealth need not allege a prior conviction in the information. Initially, the Reagan court noted that a prior conviction does not constitute an element of the crime of driving while under the influence. Id., 348 Pa.Superior Ct. at 593, 502 A.2d at 704-5; cf. Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067 (1985) (for purposes of mandatory sentencing under 42 Pa.C.S. § 9714, a prior conviction is not an element of the offense). Further, the court emphasized that in applying the recidivist penalty provision of the statute, 75 Pa.C.S. § 3731(e)(1), the grade of the underlying offense is not altered.

Any violation of § 3731 is a second degree misdemeanor. The maximum term of imprisonment for a second degree misdemeanor is two years. 18 Pa.C.S. § 1104. Yet the sentence required by 75 Pa.C.S. § 3731(e)(1)(iv) for even a fourth conviction for drunk driving, is “not less than one year.” Thus the penalties provided in the Drunk Driving Law do not change either the nature or grade of the offense, nor do they increase the maximum sentence. Because those cases which held that the indictment or information must contain averments of prior convictions to subject a defendant to a recidivist penalty involved statutes which it was held altered the nature and grade of the offense, they are not controlling . . . (See, e.g., Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979)).

Reagan, supra, 348 Pa.Superior Ct. at 595-596, 502 A.2d at 705. Consequently, where the imposition of recidivist penalty does not alter the nature and grade of the offense and where recidivism is not an element of the underlying offense, amendment of the information is unnecessary. Compare Pa.R.Crim.P., Rule 229.

We conclude that the rationale applied in Reagan to a situation in which the Commonwealth completely failed to amend the criminal information to include a prior conviction is equally applicable to the present situation where the Commonwealth has amended the information. It surely would be anomalous to preclude amendment where no obligation to amend exists. Accordingly, appellant’s argument is rejected.

II.

Appellant next asserts that the destruction of the breath sample used in the administering of the intoxilyzer test amounts to a violation of his due process rights under the Pennsylvania Constitution. While not disputing that the results of the test indicated a 0.14% blood-alcohol concentration, appellant argues that had the sample been preserved it would have been potentially exculpatory. Accordingly, he contends that because the police failed to preserve the breath sample and, therefore, retesting was made impossible, evidence of the test should be suppressed. Although this argument has been rejected under federal due process standards, California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), we are presented here with an issue of first impression. Concluding that, in the instant matter, the Pennsylvania Constitution commands no more due process protection than afforded under the Federal Constitution, we hold appellant’s claim to be meritless.

It is axiomatic that under the due process clause of the fourteenth amendment of the Federal Constitution, as well as Article I, section 9 of the Pennsylvania Constitution, criminal prosecutions must be conducted within the precepts of fundamental fairness. Consequently, certain constitutional safeguards have been developed to insure that the criminal defendant is able to present a complete defense. We require the Commonwealth, upon request, to disclose evidence favorable to the defendant that is material to guilt or to punishment. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 40 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); accord Commonwealth v. Smith, 417 Pa. 321, 334, 208 A.2d 219, 226 (1965) citing Brady, supra. The question now before us is whether a breath sample used in an intoxilyzer test falls within “what might loosely be called the area of constitutionally guaranteed access to evidence.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3447, 73 L.Ed.2d 1193 (1982) as quoted in Trombetta, supra at 485, 104 S.Ct. at 2532, 81 L.Ed.2d at 419.

In California v. Trombetta, the United States Supreme Court set forth the standard for determining when evidence is constitutionally material so as to require its preservation for disclosure under Brady. “[E]vidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 489, 104 S.Ct. at 2534, 81 L.Ed.2d at 422. Here, neither requirement is satisfied.

Where the results of an intoxilyzer test are inculpatory, no requirement need be imposed for the preservation of the breath sample. First, assuming, as we must, that the General Assembly has promulgated intoxilyzer testing procedures which are not constitutionally defective, see 1 Pa.C.S.A. § 1922, it becomes highly unlikely that the breath sample could have aided appellant’s defense. As mandated by the legislature, the intoxilyzer and the procedures employed for its testing had been approved by both the Department of Health and the Department of Transportation. The accuracy of the device was confirmed within 30 days prior to its use. This inspection was performed by a certified intoxilyzer maintenance operator. Further, the actual testing was performed by a certified test operator in accordance with the standard operating procedures specified by the manufacturer. 67 Pa.Code § 77.1-.6. Consequently, where, as here, the results of an intoxilyzer test are inculpa-tory, the police are justified in relying upon the accuracy of the information. Since no apparent exculpatory value existed during the testing, the breath sample need not be preserved.

Further, the destruction of the breath sample in no way deprived appellant of presenting a complete defense. Appellant still was able to attack the reliability of the intoxilyzer and the testing procedure. For example, evidence could have been offered demonstrating inaccurate calibration, extraneous influence, tampering with the results, or operator error.

Each of these means could have lead to an attack on the machine’s reliability. As was the situation in California v. Trombetta, appellant was given the opportunity to inspect the intoxilyzer after its use. If the machine was inaccurately calibrated, direct evidence could have been introduced to discredit the test results. Second, as was noted in Trombet-ta, extraneous influences, such as radio waves or chemical effects on the blood of those who are dieting, may impact on the reliability of the intoxilyzer. But again, appellant was not denied the opportunity to present direct evidence at trial of any extraneous influence. Lastly, as to tampering or operator error, appellant had the right to cross-examine the officer who performed the test. So too, doubt could have been created as to the propriety of the procedures followed. See Trombetta, supra at 490-91, 104 S.Ct. at 2535, 81 L.Ed.2d at 423.

Ultimately, whether the intoxilyzer and its testing procedures are reliable is a question for the fact-finder. This determination is not dependent upon preservation of the breath sample used. In fact, it is the test result rather than the sample employed to achieve that result which is the object of appellant’s attack. It is the test result which appellant wishes to prove unreliable, not the breath sample. Because comparable evidence from other reasonably available means exists, there is no necessity to preserve the breath sample in order to allow for a complete defense.

The Supreme Court stated in Brady that “[sjociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Brady, supra at 87, 83 S.Ct. at 1197, 10 L.Ed.2d at 218. Our holding that under the laws of Pennsylvania, a defendant’s rights are not abridged by the Commonwealth’s failure to preserve a breath sample used in an intoxilyzer test, is clearly in harmony with the fair administration of criminal justice.

III.

Appellant’s next contention is that the verdict was against the weight and sufficiency of the evidence. He argues that the Commonwealth was unable to prove that at the time of arrest his blood alcohol content was 0.10% or greater. Because the intoxilyzer test was given forty-seven minutes after appellant was observed operating his vehicle, appellant asserts that the Commonwealth failed to prove beyond a reasonable doubt that he was intoxicated while driving as required by 75 Pa.C.S.A. § 3731(a)(4). Appellant’s contention is unsupported and unpersuasive.

In determining whether evidence is sufficient to sustain a verdict, we ask

[wjhether accepting as true all of the evidence viewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). In driving under the influence cases, the Commonwealth has the burden of proving that the defendant was operating a motor vehicle and was intoxicated during that period. See, e.g., Commonwealth v. Dincel, 311 Pa.Super. 470, 457 A.2d 1278, appeal dismissed 503 Pa. 41, 467 A.2d 1307 (1983). Here, accepting as true all of the evidence presented by the Commonwealth, the jury reasonably could have found the elements of the offense sufficiently proven.

The Commonwealth need not prove its case to a mathematical certainty; only beyond a reasonable doubt. See Commonwealth v. Nole, 448 Pa. 62, 292 A.2d 331 (1972); Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978). Here, evidence was introduced that appellant had a O. 14% blood alcohol level forty-seven minutes after he was initially observed. It was for the jury to determine whether this evidence was sufficient to sustain a finding of guilt. Clearly, as the test result was indicative of appellant’s condition at a relevant time, the evidence was properly before the jury. See Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980) (blood test taken more than two hours after automobile accident indicative of defendant’s condition at relevant time). Although appellant argues that his blood-alcohol level rose during the period of delay, it was not an unreasonable inference for the jury to have found appellant intoxicated forty-seven minutes earlier. Before relief is warranted, “it must appear from the record that the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice ...” Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981). Such is not the case here.

Moreover, there is no requirement that the Commonwealth present evidence of an intoxilyzer test in order to sustain a conviction for driving under the influence. See 75 P. C.S.A. § 3731(a)(1); Commonwealth v. Boerner, 268 Pa. Super. 168, 407 A.2d 883 (1979), appeal dismissed 491 Pa. 416, 421 A.2d 206 (1980) (where evidence of breathalyzer test improperly admitted, court held error harmless as overwhelming testimonial evidence presented by police officers). Again, it was not unreasonable for the jury to have found appellant intoxicated.

Evidence independent of the intoxilyzer test was introduced which was capable of establishing guilt. The investigating officer testified that appellant was observed travel-ling approximately 60 m.p.h. in a 55 m.p.h. zone. His automobile was seen swaying from the left-hand lane to the right-hand lane on six occasions. After being stopped by the police, a strong odor of alcohol was detected on appellant’s breath. His eyes were bloodshot and his speech slurred. He also had difficulty walking and needed to lean on his car to support himself.

Here, whether the jury based its finding on either the intoxilyzer result or the testimony of appellant’s physical condition or both, the verdict clearly was supported by the evidence.

IV.

Finally, appellant argues that the mandatory sentencing provisions of 75 Pa.C.S.A. § 3731 are unconstitutional. He presents four primary grounds to support his contention. First, appellant asserts that because the statute contains no requirement of specific notice in the information as to prior convictions, a deprivation of due process rights occurs when a prior conviction is considered at sentencing. Second, he maintains that the mandatory sentencing provisions reflect an encroachment upon the judiciary by the legislature and violate the doctrine of separation of powers. Third, appellant contends that due process rights are denied because the mandate of a minimum sentence forecloses the opportunity to present evidence of mitigating circumstances. Fourth, he claims that the doctrine of separation of powers is abridged in that district justices are prohibited from reducing or modifying charges brought under the statute. We hold each of appellant’s constitutional arguments to be meritless.

Our review of appellant’s challenges starts from the premise that a legislative enactment enjoys a presumption of a constitutionality and will not be declared unconstitutional unless it “clearly, palpably and plainly” violates the Constitution. See Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 331 A.2d 198 (1975); Daly v. Hemphill, 411 Pa. 263, 191 A.2d 835 (1963). It is this heavy burden of persuasion which appellant bears. Accord Spi-dle v. Livingston Construction Co., Inc., 311 Pa.Super. 201, 457 A.2d 565 (1983); Estate of Cox, 327 Pa.Super. 479, 476 A.2d 367 (1984).

Appellant’s first claim regarding the lack of notice for prior convictions fails to implicate a constitutionally protected right. Under 75 Pa.C.S.A. § 3731, due process rights are not violated when the Commonwealth fails to give pre-trial notice of a prior conviction. Because a prior conviction only becomes relevant at the time of sentencing and, consequently, is not an element of the underlying offense, notice in the information of a prior conviction is not constitutionally mandated. See Pa.R.Crim.P., Rule 225(b) (5); cf. Commonwealth v. Cofoni, 349 Pa.Super. 407, 411, 503 A.2d 431, 433 (1986) (pre-trial notice of prior conviction is not constitutionally required in order for Commonwealth to impose enhanced sentence under visible possession of a firearm statute, 42 Pa.C.S.A. § 9712); Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067 (1985) (prior conviction of serious felony is not an “element of the offense” for purposes of 42 Pa.C.S.A. § 9714). Consequently, we conclude that the absence of pre-trial notice of appellant’s prior conviction does not render 75 Pa.C.S.A. § 3731 unconstitutional.

Appellant’s next contention that the legislature has encroached upon powers vested with the judiciary also is unpersuasive. Our courts have long held that it is within the “province” of the legislature to define criminal punishment.

It is within the province of the legislature to pronounce what acts, in addition to those recognized at common law, are crimes, and to fix the punishment for all crimes, whether statutory or common law. The legislature has the right to classify crimes, and designate the procedure at trial or after sentence; it may fix the maximum penalty and likewise can, if it sees fit, name the minimum. The necessity or wisdom of its action is a question for its determination, and in so doing it does not violate Art. V, sec. 1 of the (Pennsylvania) Constitution vesting the judicial power in the courts . . . .

Commonwealth ex rel. Lycett v. Ashe, 145 Pa.Super. 26, 29, 20 A.2d 881, 883 (1941) (citations omitted); accord Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985); Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985). Although certain aspects of each branch of the government must remain wholly apart from the control of the other, see In Re 42 Pa.C.S.A. § 1703, 482 Pa. 522, 394 A.2d 444 (1978), the legislature’s designation of minimum and maximum sentences for a particular crime does not violate the separation of powers clause. See Garner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204-5, 51 L.Ed.2d 393, 402 (1977) (“... defendant has no substantive right to a particular sentence within the range authorized by statute ... ”). Accordingly, since the mandatory sentencing provisions of 75 Pa.C.S.A. § 3731 merely limit a court’s discretion in fixing a sentence between minimum and maximum parameters, there exists no basis for attacking the court’s sentencing function.

Similarly, appellant’s argument that mandatory sentencing deprives him of his due process right to present mitigating circumstances that would justify non-incarceration previously has been rejected by our courts. Initially, we note that even if an offense carries with it only one mandatory penalty, the sentence is not per se violative of due process. Individualized consideration of the offender and the crime, although mandated by the eighth amendment in capital cases, is not demanded in noncapital situations. Accord Commonwealth v. Waters, 334 Pa.Super. 513, 526, 483 A.2d 855, 861 (1984) (mandatory life sentence for first-degree murder constitutional even though sentencing statute fails to provide for consideration of mitigating circumstances); Commonwealth v. Dessus, 262 Pa.Super. 443, 396 A.2d 1254 (1978). Further, as in the present case, where an appellant can present mitigating circumstances seeking to influence the sentence, the claim of a due process violation becomes even less persuasive. Hernandez, supra, 339 Pa.Superior Ct. at 41, 488 A.2d at 298 (room for consideration of ameliorative factors in determining precise sentence for homicide by vehicle while driving under the influence, 75 Pa.C.S.A. § 3735, refutes claim of due process violation).

“The touchstone of due process is protection of the individual against arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935, 952 (1974) citing Dent v. West Virginia, 129 U.S. 114, 123, 9 S.Ct. 231, 233, 32 L.Ed. 623 (1889). Here, given the legitimate concerns of the legislature in preventing and punishing drunk driving, the mandatory sentencing provisions of 75 Pa.C.S.A. § 3731 are in no way arbitrary. As previously stated by this court in Commonwealth v. Hernandez:

The problems caused by drunk drivers in our Commonwealth is well documented. See, Governor’s DUI Task Force Report (October 14, 1982, Harrisburg). We cannot say that an obligatory prison term under 75 Pa.C.S. §§ 3731 or 3735 lacks a rational relationship to the public policy, voiced by our legislature, of reducing the number of fatalities, injuries, and accidents caused by drunk drivers. ... We find that due process of law is not violated when courts accede to legislative authority to frame a coherent statutory scheme for the administration of sentencing for certain criminal offenses. The mandatory sentencing provisions, designed by the legislature to protect human life and property, represent sound public policy, are reasonably related to the ends sought to be accomplished, and are not constitutionally impermissible.

Id., 339 Pa.Superior Ct. at 41-42, 488 A.2d at 298. The consideration afforded to mitigating circumstances under 75 Pa.C.S.A. § 3731 comprises a “coherent statutory scheme for the administration of sentencing.” We hold that the mandatory sentencing provisions of the driving under the influence statute do not encroach into protected due process rights.

Lastly, we reject appellant’s contention that the statute’s mandate that charges of an offense not be reduced or modified at a preliminary hearing or arraignment violates the doctrine of separation of powers and the right to due process. Again, this argument previously has been rejected by the court in Commonwealth v. Hernandez. The court stated:

... Under the Rules of Criminal Procedure, there is no right in the district justice to change any of the charges. At the preliminary hearing, the district justice’s job is merely to determine the existence or non-existence of a prima facie case. We see no conflict between these two alternatives available to the district justice and the provision of section 3731(f). The New Law does not prohibit the district justice from dismissing the case if a prima facie case is not established; it simply prohibits reduction or modification of the original charges. While one could view a dismissal of the charges as the ultimate reduction, we do not think that the legislature intended such an interpretation.

Id., 339 Pa.Superior Ct. at 48, 488 A.2d at 302. Appellant has failed to set forth any persuasive reason to disturb the existing precedent.

Our review satisfies us that appellant has established no basis for relief.

Judgment of sentence affirmed.

      . 75 Pa.C.S.A. § 3731(e) provides in part:
      (e) Penalty.—
      (1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
      (i) not less than 48 consecutive hours.
      (ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

      . Rule 229 states:

        Amendment of Information
      The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.
      Pa.R.Crim.P., Rule 229.

      . An offense has occurred under 75 Pa.C.S.A. § 3731(a)(4) whenever a person operates a vehicle while “the amount of alcohol by weight in the blood of a person is 0.10% or greater.”

      . Appellant makes no allegation that the Commonwealth’s compliance was less than complete.

       Pa.R.Crim.P. 145 does provide for dismissal of a non-forceful misdemeanor upon satisfaction or agreement, but the rule is basically designed to effect civil compromises between affected individuals so that substantial justice is achieved and the parties achieve mutual satisfaction. It is not applicable to the case herein.


author: WICKERSHAM, Judge: BROSKY, Judge,

text:
    506 A.2d 1377
    CROZER CHESTER MEDICAL CENTER and Reproductive Health and Counseling Center v. Thomas MAY, Miriam Andrews, Joan E. Andrews, Robert E. Moran and Mary Ann Moran, Appellants.
    Superior Court of Pennsylvania.
    Argued June 4, 1985.
    Filed Feb. 18, 1986.
    Reargument Denied April 25, 1986.

      Gerry Woods and Joseph C. Cascarelli, Philadelphia, for appellants.
    Donald T. Petrosa, Media, for Crozer, appellee.
    Arthur Levy, Media, for Reproductive, appellee.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   WICKERSHAM, Judge:

This is an appeal by five pro-life appellants who are seeking the reversal of an injunction prohibiting their presence on appellees’ private property.

Appellees are Crozer-Chester Medical Center (hereinafter “CCMC”) and Reproductive Health and Counseling Center (hereinafter “RHCC”). CCMC is a private, non-profit hospital and medical complex situated on a large plot of land in Upland, Chester, Delaware County. One of CCMC’s buildings, located approximately in the center of its 68 acre property, is leased by CCMC to a private corporation known as RHCC. RHCC provides numerous reproductive health services, such as education, gynecological services, pregnancy testing, vasectomies, and first trimester abortions, the last service being the reason behind the instant controversy. RHCC is bordered on three sides by parking areas; on its remaining side, it is bordered by Seminary Avenue, a private road owned exclusively by CCMC. The closest public road is Upland Avenue, which RHCC faces at a distance of approximately 600 feet, and which is the principal means of entrance to and exit from the facilities of CCMC.

Over the last decade, appellants, none of whom are employees, staff, patients, or invited guests of either CCMC or RHCC, individually and/or in concert with the other appellants, have been picketing, praying, demonstrating, and passing out pro-life literature along Seminary Avenue (which until August 1977 was a public road) and at its intersection with Upland Avenue. All of these activities have taken place in violation of CCMC’s general written hospital policy prohibiting solicitation in or upon its property. In more recent years, the situation has grown steadily worse in that some or all of the appellants have ventured onto the parking lots adjacent to RHCC, physically accosted patients and staff, pointed cameras at patients entering or leaving RHCC and CCMC, and physically blocked the entrance to RHCC. Appellees’ requests for appellants either to leave the premises or desist in the above activities were repeatedly met with resistance. Because appellants’ actions caused concern among the patients, employees, and staff of appellees and disrupted the smooth and efficient operation of CCMC, CCMC eventually resorted to calling the Upland police to have the various appellants forcibly removed. As a result, each of the appellants has been arrested on at least one or more occasions for his or her refusal to leave the property of appellees.

Sanctions at law having proved ineffective and faced with both escalating protests and appellants’ expressed intention to continue their activities at or about the premises of CCMC and RHCC, appellees requested an injunction enjoining the continued and threatened trespasses by appellants on their property and the continued and threatened harassment of appellees’ patients, employees, and staff. On March 18, 1982, the Honorable Howard F. Reed, Jr., of the Court of Common Pleas of Delaware County issued a preliminary injunction prohibiting appellants from entering upon appellees’ private property and from otherwise interfering with appellees’ business of providing health care. At least twelve hearings were held from March 1982 through September 1982, and the court viewed the premises involved. On February 10, 1984, the Honorable Louis A. Bloom entered a Decree Nisi which essentially continued the preliminary injunction entered two years before. Appellants filed 140 exceptions, but following argument before the court en banc, their exceptions, many of which were devoted to the morality of abortion, were dismissed and the Decree Nisi was made final on November S, 1984. Appellants filed this timely appeal.

Appellants, who are represented by several attorneys, raise a number of issues on appeal, many of which overlap. Essentially we are asked to determine whether the lower court erred in 1) failing to find that at least portions of appellees’ private property constitute an appropriate forum for appellants’ activities under the federal and/or state constitution; 2) failing to find that CCMC’s no solicitation policy is vague, arbitrary, and discriminatory, and therefore unconstitutional; and 3) enjoining appellants from continuing to trespass on appellees’ private property.

The superior court’s scope of review of a decision to grant, deny, or continue an injunction is limited. Buttonwood Farms, Inc. v. Carson, 329 Pa.Super. 312, 478 A.2d 484 (1984); Lazovitz v. Lazovitz, 307 Pa.Super. 341, 453 A.2d 615 (1982). Our scope of review is restricted to whether there were any apparently reasonable ground for the action taken by the court below. Hospital Association of Pennsylvania v. Commonwealth, Department of Public Welfare, 495 Pa. 225, 433 A.2d 450 (1981); Buttonwood Farms, Inc. v. Carson, supra; Wolf v. Baltimore, 250 Pa.Super. 230, 378 A.2d 911 (1977). Only if no grounds exist to support the decree of a court of equity, so that its ruling was palpably erroneous or a misapplication of law, will we disturb that court’s decision. Id. In the absence of a plain indication that no such grounds existed or that the rules of law relied on were wrong or inapplicable, we as the reviewing court will not consider the merits of the case. Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., 450 Pa. 367, 301 A.2d 816 (1973); Bliss Excavating Co. v. Luzerne County, 418 Pa. 446, 211 A.2d 532 (1965). With this standard in mind, we have reviewed the record in the instant case.

Although it is not clear from appellants’ briefs, they appear to have substantially abandoned their former reliance on their first amendment rights under the United States Constitution, placing reliance now on any rights they might have under the Pennsylvania Constitution. This was a wise choice, because as the lower court noted, there is abundant authority for the proposition that the property in question here is not subject to first amendment guarantees. The United States Supreme Court has considered the question of when private property, such as a company town, a shopping center or an individual store becomes subject to the first amendment guarantee of freedom of expression. Beginning with Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), in which the Court held that a company-owned town had to allow Jehovah’s Witnesses to distribute religious literature on a sidewalk, the Court has gone on to define and clarify that rule. The Court has held that a privately owned shopping center, open to the public, had to permit peaceful picketing by union members concerning the nonunion status of a store within the center, Amalgamated Food Employees Union Local 509 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), overruled in Hudgens v. National Labor Relations Board, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); that a privately owned shopping center could prohibit the distribution of handbills which were unrelated to the center’s operations, Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972); that before private property, such as a free-standing store, could be subjected to the commands of the first amendment, it had to assume to some significant degree the functional attributes of public property devoted to public use, Central Hardware Co. v. National Labor Relations Board, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972), and finally that a privately owned shopping center, even though open to the public, could prohibit picketing, whether it was related to a store in the center or not, Hudgens v. NLRB, supra.

It is now clear that the first and fourteenth amendments are limitations on state action, not on action by the owner of private property used only for private purposes. Central Hardware Co. v. NLRB, supra.

The free speech provision of the First Amendment ... does not prevent a privately owned and operated shopping center from enforcing nondiscriminatory and nonar-bitrary bans on certain forms of activity on its premises. The right of free speech secured by the federal Bill of Rights is held against the government and cannot be unreasonably infringed. In the absence of “state action,” however, the acts of purely private actors, such as privately owned shopping centers, do not violate the federal constitution; such enterprises are free to enforce policies banning certain forms of speech activities under federal doctrine. Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972).

Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Co., 335 Pa.Super. 493, 498-99, 485 A.2d 1, 3 (1984) (footnote omitted). Appellants do not argue that state action was involved in the instant case, that question having been determined previously by the federal court in Cardio-Medical Associates v. Crozer-Chester Medical Center, 536 F.Supp. 1065 (E.D.Pa.1982), aff'd in part and rev’d in part, all on other grounds, 721 F.2d 68 (3d Cir.1983), and Holton v. Crozer-Chester Medical Center, 419 F.Supp. 334 (E.D.Pa.1976), vacated on other grounds, 560 F.2d 575 (3d Cir.1977). We must agree, therefore, with the lower court’s conclusion that appellants have no first amendment rights on the private property owned by appellees.

Appellants argue, however, that appellees’ injunction also violates free speech rights conferred upon them by the Pennsylvania Constitution. In Hudgens v. NLRB, supra, the Supreme Court left open the question of whether state statutory or common law could extend a person’s rights of access and freedom of expression on private property. The Supreme Court answered that question in PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). The Court held that, while the first amendment of the United States Constitution did not grant the right to defendants to solicit in a privately owned shopping center, state law — in that case, the law of California — might grant that right. Thus, the state courts were free to interpret their state constitutions’ free speech provisions as guaranteeing greater rights than those established under correlative federal provisions. Id.; Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981); Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Co., supra.

Our research, however, has not uncovered any such greater right in Pennsylvania. As we stated in Western Pennsylvania, “after careful review of the content and history of Article I of the Pennsylvania Constitution, [we hold] that privately owned shopping centers may constitutionally ban political activity.” Id., 335 Pa.Super. at 501, 485 A.2d at 4-5. See also Logan Valley Plaza, Inc. v. Amalgamated Food Employees Union Local 509, 425 Pa. 382, 227 A.2d 874 (1967), rev’d as to federal rights, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), overruled as to federal rights in Hudgens v. NLRB, supra.

Contrary to the contention of appellants, the law of Pennsylvania respecting private property rights was not changed by Commonwealth v. Tate, supra, in which our supreme court held that on the day in question, the private campus of Muhlenberg College was “open to the public” because it had invited members of the public to a symposium at which a controversial public figure was to speak. Therefore, the defendants, who were peacefully passing out leaflets criticizing the speaker, could not be found guilty of defiant trespass. As we stated in Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Co., supra:

The Court [in Tate] suggested that the college had been a “public forum” and thus a quasi-state actor. The Court appears to have placed the college on a continuum somewhere between the extremes of a state actor, on the one hand, and a purely private actor, on the other. It then found the college closer to the former than the latter. Thus the Court found that the college was a “community center for Allentown,” maintaining within a few hundred yards of defendants’ arrest a United States Post Office station, a public cafeteria, an information and ticket sales booth for public events, and a federal book depository library required to be open to the public.

Id., 335 Pa.Super. at 505, 485 A.2d at 7.

In Western Pennsylvania, we found three instances in which a supposedly private actor has been subject to federal constitutional restraints: 1) where there is a “symbiotic relationship” between a private actor and the government; 2) where there is a sufficient “nexus” between the actor and the government; and 3) where the actor has assumed a “public function”, making it an arm of the state for constitutional purposes. Id., 335 Pa.Superior Ct. at 506, 485 A.2d at 7-8.

As in Western Pennsylvania, we find in the instant case that there is neither a symbiotic relationship nor a nexus between appellees and state government. Nor do we find that appellees assumed a public function so as to become an arm of the state for constitutional purposes. Similarly, we feel that the college campus in Tate is distinguishable from appellees’ property. In Tate, the court was dealing with a college — a traditional place for free speech and the free exchange of ideas. Appellees’ hospital is hardly intended for the same purpose. Additionally, in Tate a number of “public” services, such as a post office, cafeteria, and library, were located at the college. These services are not found at the hospital. Further, while the college in Tate permitted a number of private civic groups to use its facilities, here, the hospital does not. In Tate, on the day in question, the college had specifically invited the public to attend its symposium. Here, other than its general invitation to the public to do business with it, the hospital has not so invited the public. Finally, the college in Tate had no written policy about off-campus visitors, whereas the hospital has a clearly stated written policy of no solicitation.

In the instant case, there is no public figure and no open invitation to the public. Appellees do not invite or encourage the public to congregate upon hospital grounds for the purpose of discussing issues of the day. Appellees’ property is open to the public only for the purpose of transacting business. The Pennsylvania Supreme Court has already determined that private shopping centers are not quasi-public entities because the public is invited to enter for purposes of doing business. Logan Valley Plaza, Inc. v. Amalgamated Food Employees Union, supra; Western Pennsylvania, supra. Appellants’ attempts to analogize this case to the Tate case simply do not withstand close scrutiny. We find appellees’ property to be more similar to the shopping center of Western Pennsylvania or the private store of Central Hardware, supra, than the college campus of Tate.

Appellant’s contention that CCMC’s “no solicitation” policy is vague, arbitrarily applied in practice, and therefore unconstitutional, is meritless. The lower court found that at all times material to this case, CCMC “has adopted, pursued and enforced a general hospital policy of permitting no solicitation in or upon its property in the belief that general solicitation is not in the best interest of good patient care.” Finding of Fact No. 5, Lower ct. op. at 10. The court en banc found that the evidence showed that CCMC was consistent in applying its no solicitation policy. The record clearly shows that CCMC did not arbitrarily ban appellants’ presence due to the content of their speech. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974). Rather, it banned all solicitations, although it appears to have tolerated appellants’ presence on the sidewalk along Seminary Avenue until appellants began to physically accost the patients and staff and block the entrance to the building. Appellants’ reliance upon Dallas Association of Community Organizations for Reform Now v. Dallas County Hospital District, 670 F.2d 629 (5th Cir.1982), cert. denied, 459 U.S. 1052, 103 S.Ct. 471, 74 L.Ed.2d 619 (1982) is misplaced; the hospital in that case was a public, state-run institution, whereas the instant medical center is private.

As the Pennsylvania Supreme Court stated in Commonwealth v. Tate, supra:

Even when an owner of private property is constitutionally obligated to honor speech and assembly rights of others, private property rights themselves must nonetheless be protected. The owner of such private property, therefore, is entitled to fashion reasonable rules to control the mode, opportunity and site for the individual exercise of expressional rights upon his property. It is at this level of analysis — assessing the reasonableness of such restrictions — that weight may be given to whether there exist convenient and feasible alternative means to individuals to engage in substantially the same expres-sional activity.

Id., 495 Pa. at 174-75, 432 A.2d at 1390 (quotations and footnote omitted). Appellants do not convince us that CCMC failed to fashion such reasonable rules or that the restriction of appellants’ activities to the public sidewalk adjacent to the hospital grounds does not provide them with a feasible alternative to engage in substantially the same expressional activity. By being restricted to picketing along the public sidewalk, appellants do not lose their relevant audience, but are seen by virtually anyone entering, exiting, or going by the hospital grounds. The decree allows appellants a reasonable opportunity to voice their opinion while at the same time, the decree respects the rights of the hospital and its patients.

Finally, appellants argue that appellees failed to prove either a taking of their private property without just compensation or a due process violation. For the proposition that appellees, in an injunction proceeding involving a constitutional issue, have the burden of showing either a taking or a due process violation, appellants cite PruneYard Shopping Center v. Robins, supra and Commonwealth v. Tate, supra. After a close examination of both cases, we conclude that appellants have misread those opinions. There is no requirement, placed upon the moving party, that it must prove either a taking or a due process violation before it can obtain injunctive relief.

What appellees needed to prove was the certainty of immediate and irreparable harm and that greater injury would be done by refusing the injunction than by granting it. Willman v. Children’s Hospital of Pittsburgh, 505 Pa. 263, 479 A.2d 452 (1984). The record clearly shows that these requirements have been met. It also shows that appellees had no adequate remedy at law, and that the injunction would more or less restore the status quo and is reasonably suited to abate the wrongful activity. See Tem-tex Products, Inc. v. Kramer, 330 Pa.Super. 183, 479 A.2d 500 (1984).

We conclude that the lower court, after careful consideration of both appellants’ rights to voice their opinions and appellees’ rights to protect their patients and to conduct their lawful business upon their private property free from unwarranted interference, arrived at a solution which carefully balances the rights of all parties involved. Because we find that there were reasonable grounds for the action taken below and that there was a proper application of the law, we affirm the final decree of the court below.

Decree affirmed.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I join the majority opinion. I write only to note that our neighboring sister state of New Jersey has already grappled with the issue before us today and has formulated a more powerful analytical test than this Commonwealth’s courts have provided in the Western Pennsylvania—Tate dichotomy.

In Brown v. Davis, 203 N.J.Super. 41, 495 A.2d 900 (1984), New Jersey’s counterpart to our Court had before it a case dealing with the right of public access under New Jersey’s Constitution to private property to demonstrate against abortions. In deciding that the right was not present under the facts before it, the Brown court applied the test laid down by New Jersey’s high court in State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), app. dism. sub nom. Princeton University v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982).

In State v. Schmid, where the defendant sought to distribute political literature on the campus of Princeton University, the court formulated a three prong test to ascertain “... the parameters of the rights of speech and assembly upon privately owned property and the extent to which such property reasonably can be restricted to accomodate” those rights. Id. 84 N.J. at 563, 423 A.2d 615. The elements to be considered are “(1) the nature, purposes, and primary use of such private property, generally, its ‘normal’ use, (2) the extent and nature of the public’s invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property.” Id. at 563, 423 A.2d 615.
The protection of the rights of a private owner is concomitant to the owner’s obligation to honor the rights of others to speak and assemble on his property. In weighing the reasonableness of the owner’s restrictions to access to private property, effect must be given to whether “there exists convenient and feasible alternative means to individuals to engage in substantially the same expres-sional activity.” Schmid at 563, 423 A.2d 615.

Brown, 495 A.2d at 903.

The Schmid analysis makes explicit the factors that are implicit in Western Pennsylvania, Tate and the majority opinion. It is, consequently, a more useful tool. Using it, I come to the same conclusion as the majority.

      . Some second and third trimester abortions are also performed by CCMC.

      . Appellants include Thomas May, Joan Andrews, Miriam Andrews, Robert Moran, and Mary Ann Moran. The final injunction order also names "and all others acting in concert with them, and all others who may be shown a certified copy of [the order].”

      . Appellants’ and appellees’ involvement with the courts apparently began in 1974, when RHCC was granted an injunction prohibiting appellants from carrying placards with the words “kill,” “murderers,” and "jail.” Of the multiple arrests charging defiant trespass, appellants were variously acquitted or convicted at the district justice level. In those cases appealed to the court of common pleas, all but one resulted in determinations of guilt. Recourse to criminal action has generally proved ineffective, however, because appellants are indigent and cannot be imprisoned for failure to pay fines imposed, and all appellants have continued to picket, some refraining only during their period of probation. Hence, injunctive relief was the only recourse left open to appellees.

      . It is important to note that the only restrictions imposed by the lower court on appellants’ activities outside the boundaries of appel-lees' private property are the prohibition of photographing patients, employees, or staff; the limitation to ten pickets at any one time; the requirement of constant motion and a distance of at least five feet apart; and the prohibition on obstructing ingress and egress to appel-lees’ private property. With these restrictions, appellants are still free to picket and demonstrate along Upland Avenue and its intersection with Seminary Avenue, the main entrance to CCMC and more particularly, to RHCC.

      . Appellants frame the issues as follows:
      1. Can private property held open to the public for the private gain or advantage of the owner be deemed [an] appropriate forum for the discussion of a relevant public controversy before a relevant audience?
      2. Can a privately owned abortion clinic be deemed an appropriate forum for the discussion of abortion and abortion-alternatives counseling in the audience of pregnant women contemplating abortion at this particular abortion clinic?
      3. Are appellants entitled to effectively communicate their message to their intended audience as a matter of constitutional law?
      4. Is Appellee, CCMC’s, “no solicitation” policy a standardless policy that is vague, arbitrarily applied in practice, and therefore unconstitutional?
      5. In an injunction proceeding involving constitutional issues, does the moving party have the burden of showing either a “taking” of his private property or a due process violation?
      Brief for Appellants at 5.

        1. Did the lower court err in not finding that portions of Appel-lees' property constitute an appropriate forum for Article I, Sections 7 and 20 of the Pa Constitution?
      2. Did the lower court err in failing to find the application of Appellees’ non-solicitation policy to Appellants’ activity arbitrary and discriminatory?
      3. Did the lower court err in not discussing whether Appellees’ met their burden of proof for the granting of an injunction?
      Brief for Appellants Miriam Andrews and Robert Moran at 3.

      . Other federal courts that have considered the question of whether private hospitals act under color of state law because they perform a public function have also concluded that they do not. See, e.g., Schlein v. Milford Hospital, Inc., 561 F.2d 427 (2d Cir.1977); Taylor v. St. Vincent’s Hospital, 523 F.2d 75 (9th Cir.1975), cert. denied, 424 U.S. 948, 96 S.Ct. 1420, 47 L.Ed.2d 355 (1976); Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308 (9th Cir.1974); Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir.1973); Robinson v. Magovern, 456 F.Supp. 1000 (W.D.Pa.1978); Sokol v. University Hospital, Inc., 402 F.Supp. 1029 (D.Mass.1975); Barrett v. United Hospital, 376 F.Supp. 791 (S.D.N.Y.1974), aff'd, 506 F.2d 1395 (2d Cir.1974).

      . We note that the court in Tate did not hold Muhlenberg College to be forever or at all times open to the public for the exercise of free speech, but merely on the particular day scheduled for the public symposium.