author: OLSZEWSKI, Judge: McEWEN, Judge,

text:
    547 A.2d 1229
    Wayne K. BOYD, in his own right and as Administrator of the Estate of Chardella Boyd, Deceased, and as Parent and Guardian on Behalf of Darren Boyd, and Patrice Boyd, Minor Children of the Deceased, Appellant, v. ALBERT EINSTEIN MEDICAL CENTER, Northern Division, the Health Maintenance Organization of Pennsylvania, David E. Rosenthal, M.D., Perry L. Dornstein, M.D., Erwin Cohen, M.D., Appellees.
    Superior Court of Pennsylvania.
    Argued June 8, 1988.
    Filed Sept. 22, 1988.

      Kenneth W. Richmond, Philadelphia, for appellant.
    Nancy L. Siegel, Philadelphia, for Health Maintenance, appellee.
    Before McEWEN, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the trial court’s order granting summary judgment in favor of defendant/appellee, Health Maintenance Organization of Pennsylvania (hereinafter HMO). Appellant asserts that the trial court erred in granting the motion for summary judgment when there existed a question of material fact as to whether participating physicians are the ostensible agents of HMO. For the reasons stated below, we reverse the grant of summary judgment.

The facts, as averred by the parties in their pleadings and elicited through deposition testimony, reveal that at the time of her death, decedent and her husband were participants in the HMO. HMO is a medical insurance provider that offers an alternative to the traditional Blue Cross/Blue Shield insurance plan. Decedent’s husband became eligible for participation in a group plan provided by HMO through his employer. Upon electing to participate in this plan, decedent and her husband were provided with a directory and benefits brochure which listed the participating physicians. Restricted to selecting a physician from this list, decedent chose Doctor David Rosenthal and Doctor Perry Dornstein as her primary care physicians.

In June of 1982, decedent contacted Doctor David Rosenthal regarding a lump in her breast. Doctor Rosenthal ordered a mammogram to be performed which revealed a suspicious area in the breast. Doctor Rosenthal recommended that decedent undergo a biopsy and referred decedent to Doctor Erwin Cohen for that purpose. Doctor Cohen, a surgeon, is also a participating HMO physician. The referral to a specialist in this case was made in accordance with the terms and conditions of HMO’s subscription agreement.

On July 6, 1982, Doctor Cohen performed a biopsy of decedent’s breast tissue at Albert Einstein Medical Center. During the procedure, Doctor Cohen perforated decedent’s chest wall with the biopsy needle, causing decedent to sustain a left hemothorax. Decedent was hospitalized for treatment of the hemothorax at Albert Einstein Hospital for two days.

In the weeks following this incident decedent complained to her primary care physicians, Doctor David Rosenthal and Doctor Perry Dornstein, of pain in her chest wall, belching, hiccoughs, and fatigue. On August 19, 1982, decedent awoke with pain in the middle of her chest. Decedent’s husband contacted her primary care physicians, Doctors Rosenthal and Dornstein, and was advised to take decedent to Albert Einstein hospital where she would be examined by Doctor Rosenthal. Upon arrival at Albert Einstein emergency room, decedent related symptoms of chest wall pain, vomiting, stomach and back discomfort to Doctor Rosenthal. Doctor Rosenthal commenced an examination of decedent, diagnosed Tietz’s syndrome, and arranged for tests to be performed at his office where decedent underwent x-rays, EKG, and cardiac ioenzyme tests. Decedent was then sent home and told to rest.

During the course of that afternoon, decedent continued to experience chest pain, vomiting and belching. Decedent related the persistence and worsening of these symptoms by telephone to Doctors Rosenthal and Dornstein, who prescribed, without further examination, Talwin, a pain medication. At 5:30 that afternoon decedent was discovered dead in her bathroom by her husband, having expired as a result of a myocardial infarction.

Appellant’s complaint and new matter aver that HMO advertised that its physicians and medical care providers were competent, and that they had been evaluated for periods of up to six months prior to being selected to participate in the HMO program as a medical provider. The complaint further avers that decedent and appellant relied on these representations in choosing their primary care physicians. The complaint then avers that HMO was negligent in failing to “qualify or oversee its physicians and hospital who acted as its agents, servants, or employees in providing medical care to the decedent nor did HMO of Pa. require its physicians, surgeons and hospitals to provide adequate evidence of skill, training and competence in medicine and it thereby failed to furnish the decedent with competent, qualified medical care as warranted.” Paragraph 39, plaintiff’s amended complaint. Finally, appellant’s new matter avers that HMO furnished to its subscribers documents which identify HMO as the care provider and state that HMO guarantees the quality of care. Plaintiff’s new matter, paragraph 18.

Appellant’s theory of recovery before the trial court was primarily one of vicarious liability under the ostensible agency theory. See Capan v. Divine Providence Hospital, 287 Pa.Super. 364, 430 A.2d 647 (1980). In granting defendant HMO’s motion for summary judgment, the trial court found that plaintiff/appellant had failed to establish either of the two factors on which the theory of ostensible agency, as applied to hospitals in Capan, is based. On appeal, appellant contends that the evidence indicates that there exists a question of fact regarding whether HMO may be held liable under this theory.

Before embarking on a substantive analysis of appellant’s claims, we must delineate our well-settled standard of review in cases involving the granting of summary judgment. Initially we note that our standard of review in such cases is plenary. Thornburgh v. Lewis, 504 Pa. 206, 209, 470 A.2d 952, 954 (1983). Summary judgment may be granted:

“ ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Pa.R.C.P. 1035. In considering a motion for summary judgment, the trial court is bound to follow several firmly established principles. Specifically, the court must examine the entire record in the light most favorable to the non-moving party. The court’s sole function is to determine whether there is an issue of fact to be tried and not to decide issues of fact. Finally, the court must resolve all doubts as to the existence- of a genuine issue of fact against the party moving for summary judgment.” See Taylor v. Tukanowicz, 290 Pa.Super. 581, 586, 435 A.2d 181, 183 (1981); Schacter v. Albert, 212 Pa.Super. 58, 62, 239 A.2d 841, 843 (1968).

Perry v. Middle Atlantic Lumbermans Association, 373 Pa.Super. 554, 542 A.2d 81 (1988). Summary judgment should not .be entered unless the case is free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). Further, the moving party has the burden of proving that no genuine issue exists as to a material fact. For that reason the record is examined in a light most favorable to the non-moving party, and in doing so our Court shall accept as true all well-pleaded facts in the non-moving party’s pleadings. Hower v. Witmak Associates, 371 Pa.Super. 443, 538 A.2d 524 (1988).

Preliminarily, we note that Pennsylvania courts first recognized the theory of ostensible agency in Capan v. Divine Providence Hospital, 287 Pa.Super. 364, 430 A.2d 647 (1980).

There, pursuant to instructions by our Supreme Court, we determined that the trial court had erred in failing to instruct the jury on the Restatement (Second) of Torts § 429 (1965). We further pointed out that Section 429 provided an exception to the general rule that an employer is not liable for torts committed by an independent contractor in his employ. Capan, [supra, ] at 367, 430 A.2d at 648. Section 429 states:

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.

In adopting the theory of ostensible agency, we noted that several jurisdictions had applied the concept to cases involving hospital liability for the negligence of independent contractor physicians. [Id.] at 368, 430 A.2d at 649. We also noted two factors which contributed to the conclusion by other courts that, although a physician holds independent contractor status with respect to the hospital, he may nevertheless be an agent of the hospital with respect to the patient. First, there is a likelihood that patients will look to the institution rather than the individual physician for care due to the changing role of the hospital in today’s society. Second, “where the hospital ‘holds out’ the physician as its employee[,]” a justifiable finding is that there is an ostensible agency relationship between the hospital and the physician. Id. See also, Simmons v. St. Clair Hospital, 332 Pa.Super. 444, 481 A.2d 870 (1984). We recognized that a holding out occurs “when the hospital acts or omits to act in some way which leads the patient to a reasonable belief he is being treated by the hospital or one of its employees.” Capan, [supra,'] at 370, 430 A.2d at 649. (Citation omitted) (Emphasis in original).

Thompson v. Nason Hospital, 370 Pa.Super. 115, 535 A.2d 1177 (1988).

We must, therefore, consider appellant’s claim in light of Section 429 and decide whether there is an issue of material fact as to participating physicians being the ostensible agents of HMO. In order to make these determinations, we will discuss, initially, the arrangement between HMO and participating doctors and their relationship with HMO members.

The record reflects that, through his employer, appellant became eligible for and ultimately chose to participate in a group plan provided by the Health Maintenance Organization of Pennsylvania (hereinafter HMO). As part of its services, HMO provided its members with a brochure explaining, in general outline form only, the main features of the program of benefits. Appellant’s brief, appendix E. The brochure also provided a directory of participating primary physicians and declared that the complete terms and conditions of the plan were set forth in the group master contract. Id.

The group master contract provides that HMO “operates a comprehensive prepaid program of health care which provides health care services and benefits to Members in order to protect and promote their health, and preserve and enhance patient dignity.” Group master contract, Form HMOPA/GM-6 (5/83) of record [hereinafter group master contract]. HMO was incorporated in 1975 under the laws of Pennsylvania and converted from a non-profit to a for-profit corporation in 1981. Training manual of record at 1. HMO is based on the individual practice association model (hereinafter IPA), which means that HMO is comprised of participating primary physicians who are engaged in part in private practice in the HMO service area. Id. Under the plan, IPA contracts with HMO to provide medical services to HMO members. Id. at 1-2. IPA selects its primary and specialist physicians and enters into an agreement with them obligating the physician to perform health services for the subscribers of HMO. Primary physician agreement of record at 1.

“A physician applying for membership in the IPA of the HMO-PA should expect a four to six months review process prior to admission to the organization.” Document entitled Membership Process of the IPA of record at 1. When an interested physician calls the IPA, the Provider relations representative reviews the physician’s credentials and the reasons for his interest in HMO. The physician then subsequently receives an application packet that requests the applicant’s curriculum vitae, four letters of recommendation, copies of the state license, and evidence of malpractice insurance. Soon thereafter, the IPA coordinator visits the applicant’s practice in order to: (1) observe how the office is run, how the office personnel treat patients, and the ability of the office to absorb a number of new patients; (2) inspect the actual physical plant to ensure that appropriate procedures, space, and necessary medical equipment are available; (3) explain the payment system, the incentive program, and the rights and responsibilities of an IPA physiciatí; and (4) set up a medical director’s interview. Id. at 1-2.

After interviewing the applicant, the medical director makes a recommendation that is forwarded to the membership committee, which thoroughly discusses and determines whether the applicant has met all the criteria for membership. The criteria include: Twenty-four-hour-a-day coverage provided with another IPA member for office and hospital patients, with any exclusions being approved by the executive committee; prior routine hospitalization of patients on his own service at a participating HMO hospital; specific routinely performed procedures including minor surgery and office gynecology; scheduling of appointments at a rate of no more than five patients per hour per doctor; and office records that are legible, reproducible, and pertinent. Id. at 8-4.

The membership committee makes a recommendation to the executive committee, which makes the final decision regarding the applicant. Those accepted into the IPA are called by an IPA coordinator, who schedules an office orientation.

The primary physician’s role is defined as the “gatekeeper into the health care delivery system.” Document entitled Role of the Primary Physician of record at 1. “An HMO member must consult with his primary physician before going to a specialist and/or the hospital.” Id; Group master contract at II B. If the primary physician deems it necessary, he arranges a consultation with an HMO participating specialist, which constitutes a second opinion. Role of the Primary Physician at 1. “Basically, with the primary physicians ‘screening’ the members’ illnesses, excessive hospitalization and improper use of specialists can be reduced.” Id.

Member-patients use a physician directory and choose a conveniently located office of a participating primary physician. HMO members will only receive reimbursement from non-participating providers when the condition requiring treatment was of an immediate nature. Determinations of immediacy are made by the HMO quality assurance committee. In any event, persons desiring emergency non-provider benefits must notify HMO or their primary physician of the emergency within forty-eight hours and must give written proof of the occurrence within ninety days after service is rendered. Group master contract at 13. Reimbursement for emergency care by a non-participating provider is limited to expenses incurred prior to the time the member’s condition, “in the opinion of HMOPA, reasonably permitted him or her to travel or be transported to the nearest HMOPA Participating Provider, or to receive follow-up care from a Participating Provider, upon referral by the Member’s Participating Primary Physician.” Id. at 14.

Primary physicians are paid through a mechanism termed “capitation.” Capitation is an actuarially determined amount prepaid by HMO to the primary physician for each patient who has chosen his office. Revised attachment AA to primary physician agreement. The dollar amount is based upon a pre-determined rate per age group. The primary physicians are paid 80% of the capitation amount and the remaining 20% is pooled by IPA and goes back into a pooled risk-sharing fund as a reserve against specialty referral costs and hospital stays. Each primary care office has its own specialist fund and hospital fund established by allocating a pre-determined amount each month for each member who has chosen that primary care office. The surplus from the specialist fund is returned to the primary care office. The hospital fund, however, is governed by a hospital risk/incentive-sharing scheme which anticipates a number of inpatient days per members per year. If the actual hospital utilization is less than anticipated, the HMO and IPA each receive 50% of the savings. IPA must place the savings in the Special IPA risk-sharing account and must use the funds to offset losses resulting from unanticipated physician costs. Attachment B to primary physician agreement. If utilization is greater than anticipated, IPA is responsible for 50% of the loss up to the amount of uncommitted funds in the Special IPA risk sharing account. Id.

Appellant asserts that he has raised a question of material fact as to whether the treating physicians were the ostensible agents of HMO. As delineated supra, Pennsylvania courts have determined that the two factors relevant to a finding of ostensible agency are: (1) whether the patient looks to the institution, rather than the individual physician for care, and (2) whether the HMO “holds out” the physician as its employee. Also instructive is the definition of apparent or ostensible agency in Restatement (Second) of Agency, Section 267, which provides:

One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.

Comment (a) to Section 267 is particularly instructive:

The mere fact that acts are done by one whom the injured party believes to be the defendant’s servant is not sufficient to cause the apparent master to be liable; [rather,] ... [t]he rule normally applies where the plaintiff has submitted himself to the care or protection of an apparent servant in response to an invitation from the defendant to enter into such relations with such servant.

HMO asserts that because the theory of ostensible agency has been applied in Pennsylvania only to the relationship between hospitals and independent contractor physicians, the theory is not appropriate in the instant situation. We emphasize, however, that when this Court introduced the concept of ostensible agency to this Commonwealth in Capan, supra, we based that decision in large part upon “the changing role of the hospital in society [which] creates a likelihood that patients will look to the institution” for care. Id. 287 Pa.Super. at 368, 430 A.2d at 649. Because the role of health care providers has changed in recent years, the Capan rationale for applying the theory of ostensible agency to hospitals is certainly applicable in the instant situation.

Therefore, while Capan is distinguishable on its facts, it is instructive in our resolution of the instant matter. Moreover, we are guided not so much by facts of Capan and its progeny as their delineation of the theory of ostensible agency as contained in Restatement (Second) of Torts and their justification for implementing the theory.

We find that the facts indicate an issue of material fact as to whether the participating physicians were the ostensible agents of HMO. HMO covenanted that it would “[provide] health care services and benefits to Members in order to protect and promote their health____” Group master contract at 1. “HMOPA operates on a direct service rather than an indemnity basis.” Id. Appellant paid his doctor’s fee to HMO, not to the physician of his choice. Then, appellant selected his primary care physicians from the list provided by HMO. Regardless of who recommended appellant’s decedent to choose her primary care physician, the fact remains that HMO provides a limited list from which a member must choose a primary physician. Moreover, those primary physicians are screened by HMO and must comply with a list of regulations in order to honor their contract with HMO. See discussion and footnote 8, supra.

Further, as mandated by HMO, appellant’s decedent could not see a specialist without the primary physician’s referral. As HMO declares, the primary physician is the “gatekeeper into the health care delivery system.” Document entitled Role of the Primary Physician of record at 1. “An HMO member must consult with his primary physician before going to a specialist and/or the hospital.” Id. Moreover, appellant’s decedent had no choice as to which specialist to see. In our opinion, because appellant’s decedent was required to follow the mandates of HMO and did not directly seek the attention of the specialist, there is an inference that appellant looked to the institution for care and not solely to the physicians; conversely, that appellant’s decedent submitted herself to the care of the participating physicians in response to an invitation from HMO. See comment (a), Restatement (Second) Agency § 267.

Summary judgment should be granted only where there is not the slightest doubt as to the absence of a triable issue of fact. Thompson, supra, 370 Pa.Super. at 120, 535 A.2d at 1180, citing Chandler v. Johns-Manville Corp., 352 Pa.Super. 326, 507 A.2d 1253 (1986); Long John Silver’s, Inc. v. Fiore, 255 Pa.Super. 183, 386 A.2d 569 (1978). Based on the foregoing, we find that there is an issue of material fact as to whether the participating physicians were the ostensible agents of HMO. We conclude, therefore, that the trial court erred when it granted HMO’s motion for summary judgment on the ground that the participating physicians were not the ostensible agents of HMO.

The order granting summary judgment is reversed and the case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

McEWEN, J., concurs with opinion.

McEWEN, Judge,

concurring:

I concur in the result reached by the majority since the author, after a very careful analysis of the issues presented in this appeal, reaches the quite basic principle that issues of material fact may not be resolved by summary judgment.

I write only because it appears to me that the learned trial court improperly resolved by summary judgment the basic factual issue of whether the literature, in which HMO “guaranteed” and “assured” the quality of care provided to its subscribers, had been distributed to appellant or to other subscribers of HMO.

It might also be mentioned that while the court was understandably uncertain as to the theories upon which plaintiff was proceeding, it appears that the amended complaint of plaintiff does contain factual averments supporting a breach of warranty claim. See: Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa.Super. 293, 298, 464 A.2d 1349, 1352 (1983) (“Pennsylvania is a fact-pleading state.”). Accord: Smith v. Brown, 283 Pa.Super. 116, 119, 423 A.2d 743, 745 (1980).

      . “A Health Maintenance Organization is an organized system of health care which provides or arranges for a comprehensive array of basic and supplemental health care services. These services are provided on a prepaid basis to voluntarily enrolled members living within a prescribed geographic area. Responsibility for the delivery, quality and payment of health care falls to the managing organization — the HMO.” Physicians Office Coordinator Training Manual citing HMOs An Alternative to Today’s Health Care System. A Towers, Perrin, Forster, and Crosby Background Study, December 1975.

      . Doctor Rosenthal admitted in his deposition that HMO limited specifically the doctors to whom decedent could have been referred. Deposition, p. 70.

      . Tietze’s Syndrome is an inflammatory condition affecting the costochondral cartilage. It occurs more commonly in females, generally in the 30 to 50 age range. Deposition of Doctor Rosenthal, p. 48.

      . HMO avers that decedent was returned to the doctor’s office for testing because it was more comfortable and convenient for her. Appellant, however, asserts that the tests were performed in the doctor’s office, rather than the hospital, in accordance with the requirements of HMO whose primary interest was in keeping the medical fees within the corporation.

      . Appellant contends that Doctor Rosenthal acted negligently in ordering the tests to be performed in his office when decedent exhibited symptoms of cardiac distress. The safer practice, avers appellant, would have been to perform the tests at the hospital where the results would have been more quickly available. Appellant further contends that, despite Doctor Rosenthal’s diagnosis of Tietze’s Syndrome, the nature of the tests he ordered indicates that he was concerned about the possibility of a heart attack.

      . In a document entitled “Why offer HMO-PA?”, Appellee's brief at 55b, HMO reasoned to employers that HMO “is a total care program which not only insures its subscribers, but provides medical care, guarantees the quality of the care and controls the costs of health care services." The document also claimed that “HMO-PA is more than just another health insurance plan. HMO-PA is an entire health care system. HMO-PA provides the physicians, hospitals and other health professionals needed to maintain good health. HMO-PA assures complete security, when illness or injury arises.” Appellee’s brief at 58b. Finally, the document provided that HMO-PA ”[a]ssumes responsibility for quality and accessibility.” Appellee’s brief at 61b.

      . The introduction to the group master contract also provides that "HMOPA operates on a direct service rather than indemnity basis. The interpretation of the Contract shall be guided by the direct service nature of HMOPA’s prepaid program.” Group master contract at 1.

      . During the interview, the medical director reviews applicant’s understanding of the HMO and IPA, the physician’s referral pattern, how he would handle various medical problems, and his medical charts.

      . The trial court noted in its opinion that "the gravamen of plaintiffs complaint is that HMO of PA guaranteed or warranted the quality of care provided---- Plaintiffs theory of recovery ... is not entirely clear. A reading of the complaint suggests Plaintiff is proceeding upon grounds of corporate liability. However, in his answer to the motion of HMO of PA for summary judgment, plaintiff contends HMO of PA is vicariously liable through ostensible agency."


source: Caselaw Access Project

author: KELLY, Judge: POPOVICH, Judge,

license: Public Domain

text:
    547 A.2d 1236
    COMMONWEALTH of Pennsylvania v. Thomas McDERMOTT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 1, 1987.
    Filed Sept. 23, 1988.

      Gerald P. Deady, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Com.
    Before BECK, KELLY and POPOVICH, JJ.
   KELLY, Judge:

Appellant, Thomas McDermott, appeals from judgment of sentence entered following parole revocation, and separately petitions for review of an order revoking and forfeiting bail which had originally been granted pending appeal of the parole revocation. We grant the petition for review, affirm the order revoking and forfeiting bail and affirm judgment of sentence.

FACTS AND PROCEDURAL HISTORY

On September 17, 1985, appellant pled guilty to a charge of carrying a firearm without a license and was sentenced to 10 to 23 months imprisonment with credit for time served prior to imposition of sentence. On February 15, 1986, appellant was paroled. A condition of his parole was that he conduct himself as a good citizen, abstaining from any wrongdoing, and that his behavior must not be a menace to his family or any individual, or group of individuals. (N.T. 12/17/86 at 13). He did not comply with that condition.

Late in the evening on August 3, 1986 (while appellant was still on parole), appellant gave a ride to two hitchhikers, Mary H.; age 12, and Lisa M., age 13. Appellant drove them to a nearby hotel, administered methamphetamine to both children by hypodermic syringe, and proceeded to have non-forcible sexual intercourse with Mary H.

On August 19, 1986, appellant was arrested and detained for parole violations relating to the above incidents. On September 25, 1986, an initial Gagnon I hearing was held which resulted in a determination that probable cause existed to detain appellant as a technical parole violator.

On December 17, 1986, the Gagnon II disposition hearing was held. Mary H. and Lisa M. were subpoenaed by the Commonwealth. Although neither asserted her right against self-incrimination, both initially refused to cooperate. Mary H. feigned selective memory loss. Lisa M. merely responded to questions she did not wish to answer with silence. Both were held in contempt of court and remanded to the custody of the deputy sheriff to be taken to juvenile detention. The trial court noted for the record that both had been “flippant” and “arrogant” toward the court. The disposition hearing was then held in recess for one hour and twenty minutes. (N.T. 12/17/86 at 1-11).

The hearing resumed with testimony from three adult witnesses (N.T. 12/17/86 at 12-28). Mary H. was then recalled to the stand. She proceeded to answer the questions previously evaded with assertions of selective memory loss. She testified that appellant administered methamphetamine to her by hypodermic syringe and had non-forcible sexual intercourse with her. (N.T. 12/17/86 at 29-34). Extensive cross-examination was permitted regarding her decision to testify and the testimony itself. (N.T. 12/17/86 at 34-48). Lisa M. was then recalled to the witness stand. She too elected to answer questions previously evaded. She testified that she and Mary H. had gone with appellant to his hotel room and that he had administered methamphetamine to them. She also identified and verified as a truthful account of her present recollection a prior written statement she had given the police. (N.T. 12/17/86 at 50-54). Extensive cross-examination was permitted regarding Lisa’s decision to testify and the testimony itself. (N.T. 12/17/86 at 54-69). Appellant testified on his own behalf that he had given Mary H. and Lisa M. a ride on August 3, 1986, but denied every other aspect of their testimony. (N.T. 12/17/86 at 71-84).

The trial court found that appellant had administered methamphetamine to Mary H. and Lisa M. and that he had sexual relations with Mary H. on August 3, 1986. Parole was revoked and appellant was denied credit for time spent at liberty on parole. Appellant thereafter filed a timely appeal of the judgment of sentence entered following parole revocation.

On January 15, 1987, appellant filed a motion for release on bail pending disposition of his appeal from the revocation of parole. The motion alleged that appellant was entitled to bail pursuant to Pa.R.Crim.P. 4010(B)(1). A rule to show cause why appellant should not be released on bail was issued January 26, 1987. On February 10, 1987, following a hearing, appellant was released on $10,000.00 bail.

On June 10, 1987, appellant was arrested and charged with firearms violations. On September 4, 1987, appellant was arrested for a firearms offense, possession of a small amount of methamphetamine, and possession of drug paraphernalia. On September 26, 1987, appellant’s bail was revoked by ex parte order. A rule to show cause why the revocation order should not be vacated was issued October 25, 1987. Following a hearing on October 26, 1987, the order revoking bail was reaffirmed. On November 6, 1987, appellant filed a petition for review of the order revoking and forfeiting bail.

I.

Under Pennsylvania law, the authority to parole convicted offenders is split between the common pleas courts and the Pennsylvania Board of Probation and Parole (Parole Board). When an offender is sentenced to a maximum term of imprisonment of less than two years, the common pleas court retains authority to grant and revoke parole; when the maximum term is two years or more, authority to grant and revoke parole is vested in the Parole Board. See 61 P.S. §§ 331.17, 331.21, 331.26; see also Wile, Probation and Parole, 58 Pa.B.A.Q. 119, 121 (1987); Wile, An Overview of the Parole Revocation Process in Pennsylvania, 92 Dickinson L.Rev. 1, 2-3 & n. 1 (1987). The common pleas court retains authority over parole matters relating to offenders sentenced to maximum terms of less than two years even when the offender is confined in a state rather than county correctional facility. See Georgevich v. Court of Common Pleas, 510 Pa. 285, 285-86, 507 A.2d 812, 813 (1986). However, the common pleas court loses its authority to parole an offender sentenced to a maximum term of less than two years when a subsequent sentence is imposed consecutively to the previous sentence and the new aggregate maximum sentence exceeds two years. See Gillespie v. Commonwealth Department of Corrections, 106 Pa.Cmwlth. 500, 527 A.2d 1061 (1987). In fiscal year 1986-87, of the 89,411 offenders on active probation or parole only 19% were supervised by the Parole Board; twice as many parolees were under county supervision as were under supervision of the Parole Board (11.5% to 22.8%). See Pennsylvania Board of Probation and Parole, 1987 Annual Report, at 33 (Feb.1988). The extent of Common Pleas Court parole is thus greater than that of the centralized and more visable Parole Board.

There are significant differences between common pleas court parole and administrative parole. The procedures for seeking parole in the common pleas court are governed by 61 P.S. § 314; applications for administrative parole on the other hand are governed by 61 P.S. § 331.22. See Wile, supra, 58 Pa.B.A.Q. at 121-22 (outlining the similarities and differences in the procedures). Revocation procedures in the common pleas court are governed by Pa.R.Crim.P. 1409 and local rules, e.g. Phila.R.Crim.P. 910; revocation of administrative parole is governed by the detailed regulations promulgated by the Parole Board and codified at 37 Pa. Code § 71 et seq. See, Wile, supra, 58 Pa.B.A.Q. at 129-32 (outlining similarities and differences in revocation proceedings).

Appeals from common pleas court parole orders are within the exclusive jurisdiction of the Superior Court, while appeals from administrative parole orders are within the exclusive jurisdiction of the Commonwealth Court. See 42 Pa.C.S.A. §§ 742, 763(a)(1); see also Wile, supra, 58 Pa.B. A.Q. at 138. Attempts to circumvent the Commonwealth Court’s exclusive jurisdiction over administrative parole matters via Post Conviction Hearing Act and habeas corpus petitions have been rejected. See Commonwealth v. Fells, 513 Pa. 18, 518 A.2d 544 (1986) (PCHA petition); Commonwealth ex rel. Biglow v. Ashe, 348 Pa. 409, 35 A.2d 340 (1944) (habeas corpus petition); Gillespie v. Commonwealth, Department of Corrections, supra (habeas corpus petition); see also Wile, supra, 92 Dickinson L.Rev. at 69-70 & nn. 362-66. Because none of the statutory provisions vesting jurisdiction in the Commonwealth Court apply to common pleas parole orders, the Commonwealth Court cannot exercise jurisdiction over such appeals (Pa.Const. Art. V, sec. 4; 42 Pa.C.S.A. § 763); thus, our jurisdiction over appeals from common pleas court parole matters is exclusive.

Though uniformity in the treatment of common pleas court and administrative parole matters might be desirable, the strict dichotomy dictated by the statutory schema, enacted in Pennsylvania thwarts efforts to ensure complete uniformity. As noted above, there are material differences between common pleas court and administrative parole procedures; these differences may result in a lack of uniformity between Superior Court and Commonwealth Court decisions in parole matters even where actual conflicts (unrelated to procedural differences) do not exist. Moreover, because certain due process issues arise which are common to both types of proceedings, there is potential for genuine conflict between the decisions of the Superior Court and the Commonwealth Court. Though each Court is bound to give due consideration to the decisions and reasoning of the other, neither is bound to follow as controlling precedent the decisions of the other. We are confident, however, that our Supreme Court will resolve any genuine conflict which may arise. See Pa.R.A.P. 1114, note (2).

We emphasize that this is not a case properly cognizable in the Commonwealth Court which we address as a matter of judicial economy rather than transferring the matter to the Commonwealth Court. Compare Schultz v. City of Philadelphia, 314 Pa.Super. 194, 460 A.2d 833 (1983) (though subject matter of the appeal was within the exclusive jurisdiction of the Commonwealth Court, the Superior Court elected to decide the case in the interest of judicial economy rather than transfer the case to the Commonwealth Court, as no objection to jurisdiction was raised); and Commonwealth v. Lyles, 304 Pa.Super. 177, 450 A.2d 159 (1982) (an appeal raising issues regarding bills submitted to a Commonwealth agency was transferred from the Superior Court to the Commonwealth Court because of the subject matter involved even though no objection to jurisdiction was raised). This case involves appeals from common pleas court parole orders. If the issues raised by appellant are to be addressed, they must be addressed in this Court. There is neither an original nor an ancillary basis for transfer of this case to the Commonwealth Court. Pa.R.A.P. 751(a), Pa.R.A.P. 752(a). Consequently, while we eschew any encroachment upon the jurisdiction, authority and expertise of the Commonwealth Court, we must nonetheless fully discharge our responsibilities in cases within our jurisdiction regardless of the potential for conflict with the decisions of the Commonwealth Court. We find the following observations of Justice Story apt:

[The Court] cannot pass it by, because it is doubtful. With whatever doubt, with whatever difficulties a case may be attended, it must decide it, when it arises in judgment. It has no more right to decline the exercise of a jurisdiction which is given, than to usurp that which is not given.

Story, Commentaries on the United States Constitution, Bk. III, Ch. XXXVIII, Sect. 1577, at 434 (3rd Ed.1858). This Court is the proper forum for appellant’s claims.

II.

Appellant has filed a petition for review of the order revoking bail which had been granted pending disposition of his appeal from parole revocation. Use of this procedure is consistent with the decision of this Court in Commonwealth v. Colleran, 323 Pa.Super. 1, 2, 469 A.2d 1130, 1131 (1983). Because the petition for review raises significant issues regarding the right to bail not previously decided by Pennsylvania appellate courts, we grant review. We note that we address appellant’s challenge to bail revocation notwithstanding our affirmance of the parole revocation infra. We do so because the bail issues raised herein are significant and are likely to recur in future cases in a manner equally likely to evade review if deemed moot because of the disposition of the appeal from the revocation of parole. Cf Commonwealth v. Frattarola, 336 Pa.Super. 411, 485 A.2d 1147 (1984) (appeal not moot when appeal presents important issues capable of repetition yet evading review); Goldsmith v. Lower Moreland School District, 75 Pa.Cmwlth. 288, 461 A.2d 1341 (1983) (same). As our jurisdiction is proper, we proceed to a review of the merits of appellant’s contentions.

III.

Appellant contends that the trial court erred in revoking his bail. He argues that pursuant to Pa.R.Crim.P. 4005, he had a right to notice and a hearing prior to revocation, and pursuant to Pa.R.Crim.P. 4010(B)(1) he had the same right to bail pending appeal of parole revocation that he had prior to his conviction of the offense on which he was paroled. He argues further that the hearing on the rule to show cause why the ex parte order revoking bail should not be vacated did not cure the procedural defects as the Commonwealth failed to establish a violation of the bail conditions by the preponderance of the evidence. We cannot agree.

A.

Prior to conviction, in a non-capital case in Pennsylvania, an accused has a constitutional right to bail which is conditioned only upon the giving of adequate assurances that he or she will appear for trial. Pa. Const. Art. 1, sec. 14. Absent evidence that the accused will flee, the importance of the presumption of innocence, the principle that punishment should not be imposed prior to conviction, and the need to provide an accused an unhampered opportunity to prepare a defense, dictate that bail should be granted prior to trial. See Commonwealth v. Truesdale, 449 Pa. 325, 335-36 & n. 13, 296 A.2d 829, 834-35 & n. 13 (1972).

Following a verdict of guilt, however, a defendant has no state or federal constitutional right to bail. See Commonwealth v. Fowler, supra, 304 A.2d at 127 & n. 6; Commonwealth v. Caye, 447 Pa. 213, 290 A.2d 244 (1972); Commonwealth v. Keller, 433 Pa. 20, 248 A.2d 855 (1969). After conviction and pending final disposition of all direct appeal proceedings, allowance of bail in non-capital cases is left to the discretion of the trial court. See Commonwealth v. Keller, supra, 248 A.2d at 856; Commonwealth v. Myers, 137 Pa. 407, 409, 21 A. 245, 247 (1891); Respublica v. Negro Jacob, 1 Sm.L. 57 (1799). The provisions of Pa.R.Crim.P. 4010 set forth the procedural rules adopted by our Supreme Court to govern the exercise of this discretion. See Commonwealth v. Fowler, supra, 304 A.2d at 127 & n. 6.

In proceedings under the Post Conviction Hearing Act, 42 Pa.C.S.A. §§ 9541 et seq., the trial court retains limited discretion to release a petitioner on bail pending disposition of the PCHA petition pursuant to the trial court’s inherent common law powers in habeas corpus proceedings. This discretion, however, is governed by Pa. R.Crim.P. 1506(2) rather than Pa.R.Crim.P. 4010. Under Pa.R.Crim.P. 1506(2), the court’s discretion to release the petitioner on bail is limited to exceptional cases when required “in the interest of justice.” See Commonwealth v. Bonaparte, supra at n. 4, 530 A.2d at 1353-55; Commonwealth v. Wetzel, 88 Dauph. 250, 251-52 (Pa.Com.P1.1967).

The foregoing cases demonstrate the fact that an individual’s legitimate interest in remaining at large on bail diminishes, and the Commonwealth’s legitimate interest in incarcerating the individual increases correspondingly, as the individual passes from suspect, to accused, to appellant, to allocatur petitioner, to certiorari petitioner, to PCHA petitioner. Accordingly, the availability of release on bail is subject to increased restrictions at each level.

Nonetheless, even the PCHA petition, removed as it is from the presumption of innocence, is still directed to the validity of the individual’s original conviction and judgment of sentence and the consequent restrictions on the individual’s liberty resulting therefrom. Parole revocation proceedings, on the other hand, concede the validity of the original conviction and sentence and address only the import of subsequent collateral events. Thus, appellant’s liberty interest during parole revocation proceedings is not merely diminished from that which he held prior to trial; rather, it is of a wholly different nature. In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the United States Supreme Court explained:

[Revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.
* * * * * *
Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.

Id. at 480, 92 S.Ct. at 2600, 33 L.Ed.2d at 494. See also Griffin v. Wisconsin, 483 U.S. —, —, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709, 718 (1987) (reaffirming the conditional liberty characterization); Rivenbark v. Commonwealth, Board of Probation and Parole, 509 Pa. 248, 252, 501 A.2d 1110, 1111 (1985), citing Morrissey v. Brewer, supra.

In light of the foregoing, we conclude that neither Pa.R.Crim.P. 4005 nor Pa.R.Crim.P. 4010(B)(1) apply to parole revocation proceedings or appeals from parole revocation. It would be absurd and unreasonable to construe Pa.R.Crim.P. 4010(B)(1) to provide that a convict on parole has the same right to bail in parole revocation proceedings and appeals from parole revocation which he had prior to trial. We decline to so construe those rules. Rather, we agree with the analysis set forth in Commonwealth v. Bonaparte, supra, which concluded that Pa.R.Crim.P. 4010 applied only to direct appeals from the original conviction and judgment of sentence, and not to collateral appeals thereafter. 530 A.2d at 1353. We note that the analysis applies equally to Pa.R.Crim.P. 4005.

B.

The question of whether and under what conditions re-, lease on bail may be granted in parole revocation proceedings and appeals from parole revocation has not previously been addressed by Pennsylvania state appellate courts. We are not, however, without guidance.

In Commonwealth v. Chmiel, 28 Som. 405 (Pa.Com. P1.1973), Somerset County President Judge Charles Coffroth analyzed Morrissey v. Brewer, supra, and concluded that when a parolee is properly held on a detainer for parole violations the parolee has no right to bail. We agree. We note that the same conclusion has been reached by numerous other jurisdictions. See e.g. Faheem-El v. Klincar, 841 F.2d 712 (7th Cir.1988), reversing 620 F.Supp. 1308 (N.D.Ill. 1985); Luther v. Molina, 627 F.2d 71, 76 n. 10 (7th Cir. 1980); Galante v. Warden, Metro. Cor. Ctr., 573 F.2d 707, 708 (2nd Cir.1977); Argo v. United States, 505 F.2d 1374, 1377 (2nd Cir.1974); In re Whitney, 421 F.2d 337, 338 (1st Cir.1970); Siegel v. U.S. Parole Com’n, 613 F.Supp. 127, 128 (S.D.Fla.1985); Robin v. Thomas, 555 F.Supp. 849, 852 (S.D.N.Y.1983); Lee v. Pennsylvania Board of Probation and Parole, 467 F.Supp. 1043, 1046-47 (E.D.Pa.1979); Burgess v. Roth, 387 F.Supp. 1155, 1162 (E.D.Pa.1975); Martin v. State, supra; Liistro v. Robinson, supra; Genung v. Nuckolls, 292 So.2d 587, 588 (Fla.1974) (parole); Bernhardt v. State, 288 So.2d 490, 497 (Fla.1974) (probation), re affirmed Miller v. Toles, 442 So.2d 177, 179 (Fla.1983) (probation and parole); People ex rel. Tucker v. Kotsos, supra; State v. Garcia, 193 N.J.Super. 334, 337-38, 474 A.2d 20, 21-22 (1984); People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 33-34, 347 N.Y.S.2d 178, 184, 300 N.E.2d 716, 720 (1973).

Although the above jurisdictions agree that a parolee has no right to release on bail pending resolution of parole revocation proceedings, they are divided as to whether and under what conditions bail may be granted as a discretionary act by the trial court. Under Alaska law, bail is to be withheld pending formal revocation of probation or parole only in exceptional cases. Martin v. State, supra, 517 P.2d at 1398. In the federal courts and in Connecticut, the trial court is deemed to have inherent authority to release a parolee on bail pending resolution of the parole revocation proceedings only in exceptional cases, as when the parolee establishes a high probability of success on a substantial constitutional challenge to the parole detainer itself. See Galante v. Warden, Metro. Cor. Ctr., supra, 573 F.2d at 708; Siegel v. U.S. Parole Com’n, supra, 613 F.Supp. at 128; Liistro v. Robinson, supra, 365 A.2d at 112; cf. Commonwealth v. Bonaparte, supra, 530 A.2d at 1354-55 (recognizing similar authority to release a PCHA petitioner on bail pending resolution of PCHA proceedings, in exceptional cases). In New Jersey and New York, the trial court is deemed to lack authority to release on bail a parolee held on detainer pending resolution of parole revocation proceedings because of the absence of express statutory authority to do so. State v. Garcia, supra, 474 A.2d at 21-22; People ex rel. Calloway v. Skinner, supra, 347 N.Y.S.2d at 84, 300 N.E.2d at 720. In Florida, state statutes have been construed to prohibit the release on bail of a felon parolee whose alleged violation of parole is the commission of a felony, but to permit release on bail, in the trial court’s discretion, other alleged parole violators. See Miller v. Toles, supra, 442 So.2d at 180. In Illinois, state statutes have been construed to prohibit the courts from releasing on bail a parolee held on a detainer for parole violations pending resolution of parole revocation proceedings. People ex rel. Tucker v. Kostos, supra, 11 Ill.Dec. at 297, 298-99, 368 N.E.2d at 905, 906-08.

We need not and do not decide here which of the above approaches applies in Pennsylvania. Appellant seeks release after formal revocation of parole rather than pending resolution of parole revocation proceedings. As appellant made no habeas corpus type challenge to the parole detainer or parole revocation proceedings presenting exceptional circumstances raising a substantial constitutional challenge upon which a substantial likelihood of success has been demonstrated {see Siegel, supra; Liistro, supra), we have no occasion to determine whether authority to release the parolee on bail could be implied in such cases. Cf. Commonwealth v. Bonaparte, supra. We find that, in absence of such a habeas corpus type claim, there is no authority pursuant to statute or the common law to release a parolee on bail pending appeal of an order revoking parole.

C.

Nonetheless, appellant was released on bail, was subsequently arrested on new criminal charges, and had bail revoked and forfeited by ex parte order. We affirm the revocation and forfeiture of bail based upon our conclusion that: 1) though bail was improperly granted, appellant was bound by the bail conditions until bail was revoked; and 2) a bail violation warranting revocation and forfeiture of bail was established by the preponderance of the evidence. Contrary to appellant’s protestations, we find that the presence of a firearm on the side of the road, close to appellant, at the scene of an auto accident gave rise to a reasonable inference that appellant more probably than not possessed the firearm. We note that as to revocation of bail, the ex parte order could be affirmed based solely upon the fact that appellant was not eligible for such bail in the first place, and so could not have been prejudiced by its revocation. The order revoking and forfeiting bail is therefore affirmed.

IV.

In his appeal from parole revocation, appellant contends that: 1) the trial court improperly coerced the juvenile victims into testifying against appellant and thereby violated his right to due process; 2) with the child victim’s testimony excluded, the evidence is insufficient to sustain the parole revocation; and 3) even if the revocation was supported by sufficient evidence, it was contrary to the weight of the evidence. We find no merit in the contentions.

A.

Appellant first contends that the trial court violated appellant’s due process rights by using its contempt powers to coerce the juvenile victims into testifying against appellee. This issue was waived by appellant’s failure to object to the witnesses’ testimony in the trial court. See Commonwealth v. Wallace, 368 Pa.Super. 255, 259-62, 533 A.2d 1051, 1053-54 (1987) (citing waiver cases).

Alternatively, we find no due process violation. A flat refusal to testify in absence of a valid privilege is plainly contempt. In re Grand Jury of Chester County (Petition of Lees), 518 Pa. 485, 488-489, 544 A.2d 924, 925 (1988), citing In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975). Lisa M., therefore, was properly held in contempt. In In re Grand Jury of Chester County (Petition of Lees), supra, however, our Supreme Court held that a witness could not be held in contempt based solely upon an incredible claim of memory loss, as the question put to the witness had been answered and therefore, even if the memory loss was feigned, only perjury sanctions were then applicable. Here, the feigned memory loss was combined with other contemptuous behavior, which distinguishes this case from In re Grand Jury of Chester County (Petition of Lees), supra. The trial court noted and the record confirms that both the juvenile witnesses were flippant and arrogant and conducted themselves in an immature and contemptuous manner. Hence, we find no abuse of discretion with respect to the trial court’s decision to hold the witnesses in contempt.

We do not find Commonwealth v. Laws, 474 Pa. 318, 378 A.2d 812 (1977) (plurality), cited by appellant, to be apposite. The instant matter was not a jury trial where the trial court improperly usurped the fact-finding function of the jury by clearly expressing disbelief of a witness’ testimony in front of the jury; nor was this a case where a witness was coerced into changing his testimony by repeated threats of perjury charges and requests by the trial judge that the witness reconsider his testimony. Rather, two arrogant juvenile witnesses were held in contempt for a brief period of time in order to impress upon them the fact that they could not elect which questions to answer flippantly and which to evade by silence or feigned selective memory lapse without risking punishment for their contempt of court. The coercive force of the contempt sanctions was directed toward that aspect of the witnesses’ conduct and not the content of their prior testimony. Hence, In re Grand Jury of Chester County (Petition of Lees), supra, and Commonwealth v. Laws, supra, are distinguishable in material respects.

Though we find no coercion to have been exercised with regard to the content of the witnesses’ testimony, we are of the opinion that appellant’s assertion of possible coercion, like an assertion of interest or bias, goes to the weight rather than the admissibility of the post-contempt testimony. Appellant was permitted full and unbridled cross-examination as to the witnesses’ decision to testify and as to witnesses’ post-contempt testimony itself; consequently, we find no violation of appellant’s due process rights implicated. Cf. McIntyre v. State, 460 N.E.2d 162, 165-67 (Ind.App.1984) (though the trial court properly held juvenile witness in contempt for refusing to testify despite the absence of any privilege, the trial court erred in precluding cross-examination regarding the contempt sanction as the motivation to testify following the witness’ decision to testify). We find no authority for the proposition that appellant had a due process interest in the continued unlawful refusal of the witnesses to testify.

B.

Appellant next contends that with the testimony of the juvenile victims excluded, the evidence is insufficient to sustain the parole revocation. The flaw in this contention is that it presumes the merit of the prior contention; as we found no merit in the prior contention we find no merit in this contention. Moreover, we note that even with post-contempt testimony excluded, Mary H.’s pre-contempt testimony, that appellant engaged in sexual activity with her and that she used drugs with appellant, would have been sufficient, standing alone, to warrant revocation of parole for wrongdoing and menacing behavior. (N.T. 12/17/86 at 7-8).

C.

Appellant’s final contention is that the revocation of parole is contrary to the weight of the evidence. He requests that the case be remanded for new parole revocation proceedings.

We find no authority for appellant’s assumption that a challenge to the weight of the evidence may properly be entertained on appeal from parole revocation by the trial court. It is clear that such a challenge is not available from parole revocations entered by the Pennsylvania Board of Probation and Parole. See James v. Commonwealth, Board of Probation and Parole, 109 Pa.Cmwlth. 268, 270, 530 A.2d 1051, 1052 (1987); Gregory v. Commonwealth, Board of Probation and Parole, 109 Pa.Cmwlth. 294, 295-99, 530 A.2d 1048, 1049-50 (1987). Moreover, regardless of whether such challenges may be raised from common pleas court parole revocations, we do not find that the alleged conflicts in the juvenile witnesses' testimony render the finding of technical parole violations contrary to the weight of the evidence. See Commonwealth v. Pearsall, 368 Pa.Super. 327, 329-30, 534 A.2d 106, 108 (1987). Rather, the conflicts raised issues of credibility which were for the finder of fact to resolve. Commonwealth v. Smith, 490 Pa. 329, 334, 416 A.2d 494, 496 (1980). We find no abuse of discretion in this respect.

CONCLUSION

Based upon the foregoing, the order revoking and forfeiting bail and the judgment of sentence imposed following parole revocation are affirmed.

BECK, J. concurs in the result.

POPOVICH, J. files a concurring opinion.

POPOVICH, Judge,

concurring:

Albeit I concur in the result reached by the Majority, I would prefer that the adjudication (resolution) of the matter at hand be reserved to the expertise of the Commonwealth Court. See, e.g., 61 P.S. § 331.17.

We serve neither the ends of justice nor the preservation of the exclusivity reserved to the Commonwealth Court by our Legislature in reviewing issues best left to such a tribunal. By doing otherwise, we expose the appellate process to potentially divergent views emanating from the two intermediate appellate courts — Superior and Commonwealth Courts.

All cases should not be resolved in the name of “expeditious” justice, for in its wake we render the appellate process vulnerable as a patchwork of decision making that, although rendering decisions, does little to preserve the authoritative scope of each tribunal.

In our zeal to decide cases, we should be cautious to assure ourselves of their origin and our source of jurisdiction to decide each. Better to eschew review of a case, and defer deciding the same by transferring the case to the appropriate tribunal, then deciding the dispute in the name of judicious dispute-resolution.

From the tenor of my concurrence, it is obvious that I disdain the expansion of the Superior Court’s jurisdiction, unnecessarily, when to do so is by judicial fiat vis-a-vis statutory guidelines which light our way as to what is jurisdictionally acceptable and what is not. I pray that we do not lose sight of this in an endeavor to decide cases.

Further, I concur in the Majority’s determination that the court below exercised appropriate discretion in denying the appellant his release on bail pending the resolution of his appeal. However, I do not find it appropriate at this time to itemize under what circumstances, if any, a parolee violator should be allowed his freedom (by means of bail) pending the resolution of an alleged parole violation and subsequent withdrawal of parole and an appeal therefrom.

I do not foreclose the existence of “exceptional circumstances” which would warrant the awarding of one’s release on bail pending his pursuit of the appellate process to vindicate himself/herself, provided, of course, the interests of justice would so require. See Commonwealth v. Bonaparte, 366 Pa.Super. 182, 530 A.2d 1351 (1987). The facts at bar do not exhibit any such “exceptional circumstances”, thus, I concur in the Majority’s determination to affirm the actions of the court below.

      . In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court held that due process required a two step process for revocation of probation or parole: first, a probable cause hearing at the time of the initial detention (Gagnon I); and later a full determination hearing (Gagnon II). See Commonwealth v. Maye, 270 Pa.Super. 406, 410 n. 2, 411 A.2d 783, 785 n. 2 (1979).

      . “Technical violation” of parole results from the violation of parole conditions; “criminal violation” of parole is the commission of a crime while on parole. See Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980). Although the violations alleged clearly constitute crimes, the record indicates that parole was revoked for the technical violation of wrongdoing and menacing behavior rather than a specific criminal offense. (N.T. 12/17/86 at 84).

      . We note, however, more recent decisions analyzing the scope of the collateral order doctrine suggest that an order granting, denying or revoking bail may be treated as being appealable as of right under the collateral order doctrine. See Commonwealth v. Bonaparte, 366 Pa. Super. 182, 184 n. 1, 530 A.2d 1351, 1352 n. 1 (1987) (an order denying release on bail pending disposition of PCHA petition is appealable under the collateral order doctrine, citing cases); accord Martin v. Solem, 801 F.2d 324, 328-29 (8th Cir.1986) (appeal from order granting release on bail pending disposition of a federal habeas corpus petition challenging a state revocation of parole was proper under collateral order doctrine, citing cases). As appellant has presented a petition for review rather than filing notice of appeal, we have no occasion to decide whether such an order is in fact appealable as of right under the collateral order doctrine.

      . Accord Martin v. Solem, supra at n. 4, 801 F.2d at 329 (review of order granting release on bail pending disposition of habeas corpus
        petition not moot despite subsequent grant of discharge on the merits, as important issues raised were capable of repetition, yet evading review); Martin v. State, 517 P.2d 1389, 1391 (Alaska 1974) (appeals from orders denying release on bail pending resolution of parole revocation proceedings not moot despite discharge or revocation as the appeals involved important recurring issues of law capable of evading review); Liistro v. Robinson, 170 Conn. 116, 121-22, 365 A.2d 109, 111-12 (1976) (state appeal from grant of habeas corpus granting release on bail pending resolution of parole revocation proceedings not moot despite revocation of parole and subsequent re-parole, as appeal raises an issue of law capable of repetition yet evading review). But see People ex rel. Tucker v. Kotsos, 68 Ill.2d 88, 93-94, 11 Ill.Dec. 295, 297, 368 N.E.2d 903, 905 (1977) (appeal from denial of release on bail pending resolution of parole revocation proceedings moot when parole was formally revoked prior to disposition of that appeal, acknowledging the rigidity of the standard applied).

      . Rule 4010(B)(1) provides, "After Sentencing. (1) When the sentence imposed includes imprisonment of less than two years, the defendant shall have the same right to bail as before verdict.” However, it should be noted that the language of this rule is some what hyperbolic. Strictly speaking, it conveys no “right" to the defendant; rather it defines the scope of the trial court’s "discretion” to admit the convicted defendant to bail pending appeal. See Commonwealth v. Fowler, 451 Pa. 505, 510-515 & nn. 5-8, 304 A.2d 124, 127-29 & nn. 5-8 (1973) (construing similar language in a prior rule).

      . We note that the United States Supreme Court has recently held that a prior statement of a witness may be admitted as substantive evidence against a defendant even though the witness claims memory loss as to the basis for the statement at trial, so long as the witness is made available for cross-examination regarding the statement and the alleged memory loss. United States v. Owens, — U.S. —, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988).


author: WIEAND, Judge:

text:
    547 A.2d 1247
    Harold R. HOSTETTER, Jr. and Laura M. Hostetter, Appellees, v. George H. HOOVER and Esther M. Hoover, Appellants.
    Superior Court of Pennsylvania.
    Argued June 14, 1988.
    Filed Sept. 19, 1988.

      Robert Glessner, York, for appellants.
    John R. Gailey, Jr., York, for appellees.
    Before CIRILLO, President Judge, and WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

George and Esther Hoover have appealed from an order specifically enforcing against them an agreement to sell to Harold and Laura Hostetter certain residential real estate situated in Hanover, York County. They contend that specific performance was barred by (1) the statute of frauds; (2) the statute of limitations;. (3) laches; and (4) an absence of consideration for their promise to convey. These contentions are lacking in merit; and, therefore, we will affirm the trial court’s decree.

In the autumn of 1979, George Hoover inquired whether Llewelyn Miller would be interested in buying premises known as 136 North Street in Hanover. The lot was irregular in shape and contained approximately one-seventh (V?) acre, with a dwelling erected thereon. The house was badly in need of repair and was occupied by an elderly woman who had fallen behind in her payment of rent. Miller said that he was not interested in buying the same but that his daughter, Laura Hostetter, and her husband, Harold, might be interested. They were interested in buying, and, after discussion, a price of thirteen thousand ($13,000.00) dollars was orally agreed upon. The tenant was thereafter evicted, and the Hostetters, with the Hoovers’ consent, began to make needed repairs. These repairs included replastering ceilings and walls, replacing the faucets and kitchen sink, installing a kitchen light fixture, hanging kitchen cupboards, replacing windows and a medicine cabinet, and installing a new door lock, as well as fumigating, painting, and carpeting the dwelling.

On January 12, 1980, the parties entered into a written agreement by which the Hoovers agreed to sell and the Hostetters agreed to buy the premises for thirteen thousand ($13,000.00) dollars. The sellers agreed to finance the purchase price, which was to be paid, together with interest at the rate of nine (9%) percent, in monthly payments of one hundred forty-seven and 95/100 ($147.95) dollars for a period of twelve years. Settlement was set for April 15, 1980, but time was not made of the essence. In February, 1980, the Hostetters occupied the premises, paying the sum of sixty ($60.00) dollars per month in lieu of rent until final settlement.

Prior to April 15, 1980, Harold Hostetter was laid off by his employer, and the parties agreed orally to extend the time for settlement until July 15, 1980. George Hoover rejected a suggestion that the extension be made the subject of a written agreement, saying it was unnecessary. During the intervening months, the Hostetters continued to pay rent at the rate of sixty ($60.00) dollars per month. Prior to July 15, 1980, the Hostetters attempted to make arrangements for final settlement, but George Hoover said it was inconvenient for him to make settlement at that time, and final settlement was delayed indefinitely. The agreement to pay rent at the rate of sixty ($60.00) dollars was also extended indefinitely until final settlement.

Neither party attempted to reschedule final settlement for several years thereafter, although the matter was discussed generally from time to time. The Hostetters continued to occupy the premises during this time, paying rent as agreed and continuing to make repairs. These repairs included wallpapering, replacing the toilet, installing new curbing and sidewalk, enlarging the garage and hanging a new garage door, installing new electrical service to the garage, rebuilding a back porch, replacing a brick patio and landscaping the property. In or about February, 1985, George Hoover arranged and paid for the installation of a new furnace. The price, which was one thousand, five hundred ninety ($1,590.00) dollars, was by agreement to be added to the purchase price. About the same time, the Hostetters began to pay to the Hoovers the sum of one hundred ($100.00) dollars per month as rent.

In August, 1985, Harold Hostetter again attempted to arrange for final settlement, only to be told that the sellers now wanted thirty-five thousand ($35,000.00) dollars for the property and would not transfer title for less. The buyers declined to pay the increased consideration, contending that the price established by their agreement was thirteen thousand ($13,000.00) dollars. An action for specific performance of the agreement was thereafter commenced. While the action was pending, the Hostetters continued to pay rent to the Hoovers, which, in August, 1986, was raised to one hundred seventy-five ($175.00) dollars per month, and, in January, 1987, to two hundred twenty-five ($225.00) dollars per month. Since March, 1987, the rent has been paid into an escrow account.

At trial, the Hostetters’ version of the facts, as we have recited them, was corroborated by Llewelyn Miller and his wife. George Hoover, however, denied having agreed to any extension of the date for final settlement beyond that specified by the written agreement. He asserted that the buyers had failed to appear for settlement and had later agreed to rent the dwelling house. The trial court found the buyers’ evidence more credible and found that the agreement of sale had been extended by oral agreement of the parties. Therefore, a decree of specific performance was entered. Exceptions were dismissed, and this appeal followed.

Our standard of review is narrow, for we are bound by the trial court’s determinations pertaining to the credibility of the witnesses and the weight to be accorded to the evidence. Concorde Investments, Inc. v. Gallagher, 345 Pa.Super. 49, 59, 497 A.2d 637, 642 (1985); Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 114, 464 A.2d 1243, 1255 (1983).

[AJppellate review of equity matters is limited to a determination of whether the chancellor committed an error of law or abused his discretion. Commonwealth Dept. of Environmental Resources v. Pa. Power Co., 461 Pa. 675, 337 A.2d 823 (1975). The scope of review of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious. Delp v. Borough of Harrisville, 25 Pa.Cmwlth. 486, 360 A.2d 758 (1976).

Rosen v. Rittenhouse Towers, 334 Pa.Super. 124, 129, 482 A.2d 1113, 1116 (1984), citing Sack v. Feinman, 489 Pa. 152, 165-166, 413 A.2d 1059, 1066 (1980), decided after remand, 495 Pa. 100, 432 A.2d 971 (1981).

The statute of frauds directs that agreements for the sale of real estate shall not be enforced unless they are in writing and signed by the seller. The purpose of the statute is to prevent perjury and fraudulent claims. See: Brotman v. Brotman, 353 Pa. 570, 573, 46 A.2d 175, 177 (1946); Rosen v. Rittenhouse Towers, supra 334 Pa.Super. at 130-131, 482 A.2d at 1116-1117; Fannin v. Cratty, 331 Pa.Super. 326, 331, 480 A.2d 1056, 1058 (1984). As a general rule, the effect of the statute is to render oral contracts for the sale of real estate unenforceable, although not invalid. Therefore, they cannot be specifically enforced, even though they may possibly form the basis for an action to recover damages. See: Polka v. May, 383 Pa. 80, 118 A.2d 154 (1955); Weir v. Rahon, 279 Pa.Super. 508, 421 A.2d 315 (1980).

Appellants contend that the written agreement is unenforceable because it was modified by parol. They rely upon the rule that the parties generally may not alter by parol the terms of an agreement required by the statute to be in writing and thereby create a contract resting partly on the writing and partly in parol. See: United States v. 29.16 Acres, 496 F.Supp. 924 (E.D.Pa.1980); Brown v. Aiken, 329 Pa. 566, 198 A. 441 (1938). However, “[o]ral modifications of a contract required by the statute of frauds to be in writing which relate to the manner of performance do not change the character of the written agreement and are enforceable.” 16 P.L.E. Frauds, Statute of § 76. Thus, a modification as to the time of settlement for a contract for the sale of real estate does not result in a new and substituted agreement and does not reduce the written contract to one in parol. This issue was considered by the Supreme Court of Pennsylvania in Novice v. Alter, 291 Pa. 64, 139 A. 590 (1927), where the Court said:

The rule is, as shown by decisions already cited, that if a mere alteration of some term of performance is made for the convenience of the parties, the character of the agreement as a writing is not altered.
Like cases have arisen where specific performance of a contract, changed merely as to the manner of carrying out some condition, has been asked, and the courts have granted relief though the statute of frauds requires the terms to be in writing. Thus, where án oral agreement to extend the time of carrying out the written agreement of sale, is proven, the alteration of this term has been held not to affect the character of the instrument as a writing. Such modifications as to time or mere terms of performance, which do not result in the making of a new and substituted agreement, are held not to reduce the contract to one in parol: Jordan v. Cooper, 3 S. & R. 564; Wilgus v. Whitehead, 89 Pa. 131. Cases in other jurisdictions where alterations were made similar to those found here, and the action on the writing sustained, will be found in Welch v. McIntosh, 89 Kan. 47, 130 Pac. 641; Anderson v. Moore, 145 Ill. 61, 33 N.E. 848; Low v. Treadwell, 12 Me. 441.

Id., 291 Pa. at 70-71, 139 A. at 592. See also: Burg v. Betty Gay of Washington, Inc., 46 Wash.Co. 163 (1966), aff'd, 423 Pa. 485, 225 A.2d 85 (1966); Nugent v. Duncan, 104 P.L.J. 335, 11 D. & C.2d 179 (1956). See generally: 37 C.J.S. Frauds, Statute of § 232b (discussing split among other jurisdictions on whether oral extension of time violates statute, and citing cases). This, of course, is in keeping with the long existing rule in this Commonwealth that the time fixed for settlement in an agreement for the sale of real property can be extended by oral agreement or waived by the conduct of the parties. See: Warner Co. v. MacMullen, 381 Pa. 22, 29, 112 A.2d 74, 78 (1955); DiGiuseppe v. DiGiuseppe, 373 Pa. 556, 559, 96 A.2d 874, 875 (1953); Cohn v. Weiss, 356 Pa. 78, 81, 51 A.2d 740, 742 (1947); Hopp v. Bergdoll, 285 Pa. 112, 115, 131 A. 698, 699 (1926); Smith & Fleek’s Appeal, 69 Pa. 474, 481 (1871).

14] Moreover, there is an exception to the statute of frauds which holds that specific performance of an oral contract for the sale of real estate may be ordered where it appears that continuous and exclusive possession of the subject property was taken under the oral contract and improvements were made by the buyer which are not readily compensable in money. Zlotziver v. Zlotziver, 355 Pa. 299, 302, 49 A.2d 779, 781 (1946); Concorde Investments, Inc. v. Gallagher, supra 345 Pa.Super. at 56, 497 A.2d at 640; Briggs v. Sackett, 275 Pa.Super. 13, 16-17, 418 A.2d 586, 588 (1980). In such instances, equity will enforce the contract to prevent a greater injustice.

In the case sub judice, the Hostetters took exclusive possession of the property and made substantial improvements based on the agreement which they had reached with the Hoovers to purchase the house. They continued to make substantial improvements after the April 15, 1980, settlement date because of the sellers’ oral agreements to extend the settlement date. The Hostetters produced specific evidence that they had expended over three thousand ($3,000.00) dollars on material costs and at least 452 hours of labor in making improvements to the interior of the home alone. They and their three school-age children settled in this once-dilapidated house and transformed it into a comfortable home in which they lived for more than eight years. A refusal to enforce the contract under these circumstances would be inequitable and unjust. See: In re Estate of Brojack, 321 Pa.Super. 154, 167, 467 A.2d 1175, 1182 (1983); Briggs v. Sackett, supra; Eastgate Enterprises, Inc. v. Bank and Trust Co. of Old York Road, 236 Pa.Super. 503, 506, 345 A.2d 279, 280 (1975). See generally: 16 P.L.E. Frauds, Statute of § 74. Appellees’ evidence of possession and substantial improvements, therefore, was sufficient to take the contract out of the statute of frauds.

The buyers’ action also was not barred by the statute of limitations, or by laches. The trial court found, based upon ample evidence, that “the [Hoovers], instead of attempting to. exercise [their] rights to require performance under the contract lulled the [Hostetters] into sleep by assuring them that everything was OK and that their rights under the contract were still enforceable.” Intentional acts by a seller calculated to induce a buyer not to pursue his rights diligently will cause the seller to be estopped from asserting the bar of the statute of limitations or the defense of laches. See: Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473 (1964); Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963). A court will not allow a vendor to “use his own indulgence as a trap in which to catch the purchaser.” Cohn v. Weiss, supra 356 Pa. at 84, 51 A.2d at 743.

Appellants’ final contention is also lacking in merit. The contract was fully supported by consideration consisting of mutual promises. No consideration was required to support the sellers’ subsequent waiver of the time of performance specified by the written agreement. See generally: 17A C.J.S. Contracts § 492(1). A time limit can be waived merely by the consent by the other party. 8 P.L.E. Contracts § 242; 3A Corbin on Contracts § 722. Here, the sellers did not insist upon performance at the time required by the original contract but acquiesced in and even requested delay beyond the time of settlement established by the written agreement. Only when it became apparent that the real estate had increased in value did the sellers attempt to repudiate their agreement and withdraw their waiver of the time for settlement without giving the buyers notice and a reasonable opportunity to fulfill the terms of the agreement. This they could not do. See, e.g.: Warner Co. v. MacMullen, supra; Cohn v. Weiss, supra.

DECREE AFFIRMED.

      . Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 P.S. § 1.

      . The statute of limitations requires that an action to enforce a contract for the sale of real estate be brought within five years. 42 Pa.C.S. § 5526.


author: DEL SOLE, Judge:

text:
    547 A.2d 1252
    COMMONWEALTH of Pennsylvania v. Robert D. ALARIE, Appellant.
    Superior Court of Pennsylvania.
    Argued June 15, 1988.
    Filed Sept. 19, 1988.
    Petition for Allowance of Appeal Denied March 16, 1989.

      Allen P. Powanda, Assistant Public Defender, Bellefonte, for appellant.
    Mark S. Smith, Assistant District Attorney, Bellefonte, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND and DEL SOLE, JJ.
   DEL SOLE, Judge:

Following a jury trial, the Appellant was convicted of involuntary manslaughter, homicide by vehicle, recklessly endangering another person, and various summary offenses. The Appellant was sentenced on these convictions to the following concurrent prison terms: 2V2 to 5 years for involuntary manslaughter; 2V2 to 5 years for homicide by vehicle; and 1 to 2 years for recklessly endangering another person. The Appellant challenges the admission of certain photographs, expert testimony and his sentences. We affirm the convictions but vacate a portion of the sentence.

The relevant facts are as follows: The Appellant is a self-employed tractor-trailer operator who drives for North American Van Lines, Inc. As he was descending a mountain on Route 144, the brakes on his tractor-trailer failed. In order to stop his truck, he crossed over the center line toward a large yard adjacent to the left-hand side of the road. While attempting this maneuver, his tractor-trailer struck an oncoming automobile. The driver of this automobile was killed and three occupants were injured as a result of the accident.

At the scene of the accident, a Pennsylvania State Trooper and a truck mechanic conducted a preliminary examination of the Appellant’s truck. Photographs were taken at the scene of the accident. The trooper arrested Appellant and ordered that his truck be impounded and towed to a local garage. Approximately 5 days later, the truck was examined pursuant to search warrants. This examination revealed several mechanical problems including: a defective air governor, leaky air relay valves, wear on the brake pads, and grease on the brake pads of the tractor-trailer’s rear drive axle. During the Appellant’s trial, the court admitted testimony and photographs in regard to the condition of the vehicle and the after-collision appearance of the victim’s automobile. The trial court admitted these photos after denying the Appellant’s Motion in Limine at a special hearing (Hearing testimony, p. 7).

The Appellant’s first contention is that the trial court erred in admitting photographs of the accident scene into evidence which depicted the body of the deceased in her damaged car. Appellant argues that these photographs were inflammatory and that they had no probative value since they were not relevant to any issue in dispute.

In Commonwealth v. Garcia, 505 Pa. 304, 479 A.2d 473 (1984), the Pennsylvania Supreme Court stated:

The admission into evidence of photographs depicting the corpse of the homicide victim or the location and scene of the crime lies within the sound discretion of the trial judge. See Commonwealth v. Hudson, 489 Pa. 620, 630, 414 A.2d 1381, 1386 (1980); Commonwealth v. Gilman, 485 Pa. 145, 152, 401 A.2d 335, 339 (1979); Commonwealth v. Gidaro, 363 Pa. 472, 474, 70 A.2d 359, 360 (1950). A photograph which is admissible if “it is relevant and can assist the jury in understanding the facts.” Commonwealth v. Gilman, 458 Pa. at 153, 401 A.2d at 339. A gruesome or potentially inflammatory photograph is admissible if it is of “such essential evidentiary value that [its] need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.” Commonwealth v. McCutchen, 499 Pa. 597, 602, 454 A.2d 547, 549 (1982) (quoting Commonwealth v. Petrakovich, 459 Pa. 511, 521, 329 A.2d 844, 849 [1974]).

Id., 505 Pa. at 313, 479 A.2d at 478. A trial court, in determining whether to admit photographs must apply a two-part analysis.

The trial judge must initially decide whether the photographs possess inflammatory characteristics. If they do not, the photographs are admissible as are any evidentiary items, subject to the qualification of relevance. If the photographs are deemed inflammatory, then the trial judge must decide whether the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of their inflaming the passions of the jurors.

Commonwealth v. Hudson, 489 Pa. at 630, 414 A.2d at 1386 (citations omitted).

The Pennsylvania Supreme Court has focused on the black and white aspect of photographs in deciding they are not inflammatory. See Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980); Commonwealth v. Crawley, 514 Pa. 539, 526 A.2d 334 (1987). In the case of Commonwealth v. Faraci, 319 Pa.Super. 416, 466 A.2d 228 (1983), our court focused on the black and white nature of the photographs in question along with their lack of detail. In Farad, we stated that the photographs in question:

... assist in depicting the room in which the deceased was killed, the position of the body and show neither his face nor wounds. Photographs of this nature have been deemed admissible. Commonwealth v. Hudson, supra, 319 Pa.Superior Ct. at 423, 466 A.2d at 232.

As to the opposite extreme, our court stated in Commonwealth v. Frederick, 327 Pa.Super. 199, 206, 475 A.2d 754, 761 (1984) that:

The fact that a photograph depicts the corpse of a victim does not render it inflammatory per se. “Rather the depiction must be of such a gruesome nature or be cast in such an unfair light that it would tend to cloud an objective assessment of the guilt or innocence of the defendant.” Commonwealth v. Hubbard, 472 Pa. 259, 281, 372 A.2d 687, 697 (1977).

An example of an inadmissible inflammatory photograph is seen in the case of Commonwealth v. Rogers, 485 Pa. 132, 401 A.2d 329 (1979). In Rogers, the proffered photographs depicted in close and graphic detail the murder victim’s distorted face blood, flesh, and brain scattered throughout the snow beside the victim’s head. Our Supreme Court found these photographs inadmissible because they had no essential evidentiary value and were likely to inflame the passions of the jury.

In the instant case, we find that the photographs in question were not inflammatory. The photographs are not gruesome, and it is unlikely that they inflamed the passions of the jurors. The black and white photographs lack detail and reveal only portions of the victim’s body including her hands, her hair and a small portion of her back. No blood is visible and the victim’s body parts are not highlighted. In fact, it is not apparent that the portions of a body which can be viewed in the photographs are those of a corpse.

Because the photographs are not inflammatory, they must only satisfy the relevancy requirement to be properly admissible. Although all of the photographs in question are not completely necessary, they all are relevant and have probative value. At the proceedings surrounding the Appellant’s Motion in Limine, the Appellant’s counsel admitted that the photographs have “very limited probative value.” (N.T., 3/18/86, p. 3) As stated by the Commonwealth, the photographs are relevant to depict the victim’s manner of death and “the extreme amount of force and weight which was being expressed by that truck upon the car.” (N.T., 3/18/86, p. 5) The Commonwealth continued that “the risk which the Defendant in operating his truck took, the risk which he ran in terms of driving that truck is an essential part of the Commonwealth’s case in that it goes toward his culpability ...” (Id.) Thus, the trial court did not err in admitting the photographs in question as they were relevant and not inflammatory.

The Appellant next alleges that the trial court erred in admitting photographs and the testimony of a Commonwealth witness, mechanic James Corl, depicting the condition of the Appellant’s tractor-trailer approximately five days after the accident in question. The Appellant argues that the Commonwealth failed to establish a chain of custody regarding the Appellant’s vehicle and that the above evidence was not relevant to the condition of the truck at the time of the accident. In short, the Appellant contends that the condition of his truck did not remain the same between the time of the accident and the subsequent inspection. He further contends that the alleged change in his vehicle’s condition rendered the above evidence irrelevant and inadmissible.

In the case of Commonwealth v. Cugnini, 307 Pa.Super. 113, 452 A.2d 1064 (1982) our court addressed the chain of custody problem and the need for a reasonable connection between proffered and true evidence. In Cugnini, our court stated:

While the Commonwealth bears the burden of demonstrating some reasonable connection between the proffered exhibits and the true evidence, Commonwealth v. Pedano, 266 Pa.Super. 461, 467, 405 A.2d 525, 528 (1979), it need not establish the sanctity of its exhibits beyond a moral certainty. E.g., Commonwealth v. Miller, 234 Pa.Super. 146, 155, 339 A.2d 573, 578 (1975), aff'd, 469 Pa. 24, 364 A.2d 886 (1976). The Commonwealth need not produce every individual who came into contact with an item of evidence, nor must it eliminate every hypothetical possibility of tampering. Commonwealth v. Rick, 244 Pa.Super. 33, 38, 366 A.2d 302, 304 (1976). A complete chain of custody is not required so long as the Commonwealth’s evidence, direct and circumstantial, establishes a reasonable inference that the identity and condition of the exhibits have remained the same from the time they were first received until the time of trial. Commonwealth v. Oates, 269 Pa.Super. 157, 163, 409 A.2d 112, 115 (1979); Commonwealth v. Miller, supra. Any gaps in testimony regarding the chain of custody go to the weight to be given the testimony, not to its admissibility. Commonwealth v. Bolden, 486 Pa. 383, 388-89, 406 A.2d 333, 335-36 (1979).

Commonwealth v. Cugnini, 307 Pa.Superior Ct. at 116-117, 452 A.2d at 1065.

The key words in the above passage are “reasonable inference.” The Commonwealth must only create a reasonable inference that the chain of custody was not broken in order to introduce the evidence in question. At trial, the Commonwealth’s expert witness testified that the vehicle’s condition was not altered by the accident itself, the post-accident towing of the vehicle, or the post-accident tests conducted on the vehicle (N.T., 3/20/86, pp. 173, 178, 201-02, 205). In short, the Commonwealth’s expert offered relevant testimony and relevant photographs to create a reasonable inference that the condition of the vehicle’s brakes had not changed between the time immediately prior to the accident and the time of the inspection.

In automobile-related accident cases, it is unrealistic to expect an immediate post-accident inspection in which the chain of custody is unquestioned and certain. It would be unjust for us to rule that this crucial piece of evidence is inadmissible based solely on the Appellant’s allegations of problems in the chain of custody. Because the Commonwealth has created a reasonable inference that the chain of custody was unbroken and that the vehicle was not altered prior to the subsequent inspection, the evidence in question must be considered relevant and admissible. The Appellant’s allegations of problems in the chain of custody go to the weight of the evidence, and it is jury’s duty to balance these allegations against the reasonable inference of an unaltered chain of custody.

In this appeal, the Appellant also questions the sufficiency of the evidence to support his convictions for involuntary manslaughter, homicide by vehicle, and recklessly endangering another person. Furthermore, the Appellant alleges that the verdicts for these three convictions were contrary to the weight of the evidence.

A study of the record indicates that the trial court properly addressed and disposed of these issues. The trial transcript reveals adequate evidence to support the Appellant’s convictions for all three offenses. Furthermore, in its opinion, the trial court succinctly and adequately set forth the important evidence supporting the Appellant’s conviction. We see no need to further elaborate on the trial court opinion as it has carefully addressed and properly reflected these issues. We therefore affirm on the trial court’s opinion concerning the issues dealing with the weight and sufficiency of the evidence.

The Appellant contends that the trial court violated his rights under the double jeopardy clauses of the United States and Pennsylvania Constitutions by imposing sentences on both the involuntary manslaughter and homicide by vehicle convictions. It must be noted that the trial court issued an opinion and order following the sentencing hearing that vacated the homicide by vehicle sentence. However, as the Appellant notes in his brief, the trial court did not issue an order granting reconsideration within the time prescribed by the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. §§ 1701(b)(3)(ii), 903. The record reveals that the trial court did not issue a reconsideration order within 30 days following its sentencing hearing. Thus, the trial court’s order vacating sentence lacks binding effect.

Upon careful consideration of this issue, we find that the trial court’s untimely decision to vacate the Appellant’s sentence for homicide by vehicle was correct. In the similar case of Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981), the Pennsylvania Supreme Court stated:

These relaxed degrees of culpable conduct and causation set forth in the crime of homicide by vehicle are necessarily established by proof of the more stringent counterparts contained in the crime of involuntary manslaughter. Thus, under the constitutional prohibitions against double jeopardy, punishment for homicide by vehicle cannot coexist with punishment for involuntary manslaughter. 496 Pa. at 349, 437 A.2d at 387.

See also, Commonwealth v. Hernandez, 339 Pa.Super. 32, 51, 488 A.2d 293, 303 (1985) (Sentences of 21A to 5 years for homicide by vehicle and 2V2 to 5 years for involuntary manslaughter cannot constitutionally stand together).

Once our court determines that a sentence is illegal or unconstitutional, we may either remand for resentencing or vacate and amend the sentence directly. Commonwealth v. Padden, 335 Pa.Super. 51, 483 A.2d 950 (1984). In the case of Commonwealth v. Hernandez, supra, our court was faced with a similar dilemma and reasoned:

Both crimes (homicide by vehicle and involuntary manslaughter) are misdemeanors of the first degree and the maximum sentence of five years was given by the trial court for both crimes. Therefore, it is clear that the trial court could not have increased appellant’s sentence for involuntary manslaughter had it known that the homicide by vehicle sentence would be found to be illegal. 889 Pa. Superior Ct. at 51, 488 A.2d at 808.

Likewise, in the instant ease, the trial court imposed the maximum sentence for both crimes. Also, the trial court’s intentions for correcting its sentence are made evident in its invalid order and opinion. Accordingly, we partially reverse the trial court’s original judgment of sentence by vacating its sentence for the homicide by vehicle conviction.

In regard to sentencing, the Appellant also contends that the trial court abused its discretion in its imposition of sentence for all three of the above convictions. In addition, the Appellant contends that the trial court erred at the sentencing hearing by failing to state the reasons it imposed a sentence beyond the guidelines. After a careful review of the sentencing hearing transcript, we find these claims meritless.

Initially, we note that the Appellant has included in his brief a separate statement demonstrating a substantial question as to the appropriateness of the sentence under the Sentencing Code. 42 Pa.C.S. § 9781(b); Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). As the Appellant has satisfied this initial requirement, we are able to consider the merits of his claim.

It is well-established in.Pennsylvania that sentencing is a matter vested in the sound discretion of the trial court and that a trial court’s judgment of sentence will not be disturbed by an appellate court absent an abuse of discretion. Commonwealth v. Meo, 362 Pa.Super. 328, 524 A.2d 902 (1987), alloc. den. 516 Pa. 632, 533 A.2d 91 (1988). When reviewing sentencing matters, we must accord the sentencing court great weight as it is in the best position to view the defendant’s character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. Commonwealth v. Fries, 362 Pa.Super. 163, 523 A.2d 1134 (1987), alloc. den. 515 Pa. 619, 531 A.2d 427 (1988).

Our review of the sentencing hearing in the instant case reveals that the trial court adequately considered all the relevant criteria. At this extensive hearing, the trial court was able to scrutinize the testimony of witnesses for the Commonwealth and the Appellant, the testimony of the Appellant, accident reports, the Appellant’s driving record, an elaborate statement by Appellant’s counsel as to the Appellant’s character and personal background and suggested sentencing procedures, and numerous letters regarding the Appellant’s character. Furthermore, before imposing sentence, the trial judge stated the reasons for the sentence (S.T., pp. 45-6). The court emphasized the nature of the crime committed and the grave danger imposed on innocent motorists when fundamental safety precautions are not taken. Therefore, we cannot conclude that the trial court abused its discretion in imposing sentence or erred in not stating its reasons for the sentence.

In light of the above analysis, we affirm the trial court on all issues save the one dealing with the trial court error in imposing the maximum sentences for both involuntary manslaughter and homicide by vehicle. As to this issue, we vacate the Appellant’s sentence for the homicide by vehicle conviction.

Judgment of sentence for homicide by vehicle is vacated. Judgment of sentence for involuntary manslaughter and recklessly endangering another person is affirmed.

      . Appellant’s brief is sixty-six pages long. Although we have reviewed the entire brief and closely considered each argument, Appellant’s counsel is cautioned that sixty-six pages clearly exceeds the allowable limit of fifty pages set forth in Pa.R.A.P. 2135(1).