author: PER CURIAM:

text:
    547 A.2d 1257
    COMMONWEALTH of Pennsylvania v. Daniel W. ATWOOD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 15, 1988.
    Filed Sept. 23, 1988.
    Petition for Allowance of Appeal Denied March 14,1989.

      Alonzo Burney, McKeesport, for appellant.
    Paul E. Von Geis, Pittsburgh, for Com., appellee.
    Before TAMILIA, POPOVICH and HOFFMAN, JJ.
   PER CURIAM:

Throughout the early 1980’s, appellant held himself out to the public as a minister of the Gospel by conducting revival meetings and evangelistic services. After the services, however, appellant would meet privately with certain individuals requesting money and/or jewelry from them to support his ministry in one way or another. The request for money was most always accompanied with a promise to repay, resulting in numerous individuals or couples lending him money which was never repaid. Appellant now claims in several instances these loans were actually gifts to him or his ministry.

On July 29, 1987, following a lengthy jury trial, appellant was convicted on six counts of theft by deception, one count of theft by failure to make required disposition of funds received, three counts of perjury and one count of false swearing. On January 8, 1988, appellant was sentenced to nine to eighteen months incarceration on each count of theft by deception, two years probation for theft by failure to make required disposition of funds received, one and one-half to three years for each count of perjury and two years probation for false swearing, all sentences to run consecutively for an aggregate period of incarceration of nine to eighteen years followed by four years of probation. Appellant filed a petition for modification/reduction of sentence, which was granted, thereby reducing his aggregate period of incarceration to six to eighteen years.

Appellant filed a notice of appeal on February 4, 1988 and the trial court, on February 10, 1988, ordered appellant to file a concise statement of matters complained of on appeal in accordance with Pa.R.A.P. 1925(b). Appellant never complied so the trial court filed its memorandum Opinion on March 15, 1988 stating it could not begin to speculate what appellant’s issues may be. Therefore, we are left without the benefit of the trial court’s Opinion regarding appellant’s numerous issues.

Nineteen issues have been raised on appeal as follows:

I. Whether the trial court erred in the denial of Appellant’s Motion to Sever Charges.

II. Whether the trial court erred in part in the denial of Appellant’s Petition for Discovery Pursuant to Rule 305, Pennsylvania Rules of Criminal Procedure.

III. Whether the trial court erred in part in the denial of Appellant’s Motion to Quash Information with respect to counts 14, 15, 16, and 17.

IV. Whether the trial court erred in the denial of appellant’s proposed voir dire questions.

V. Whether the trial court erred in the denial of Appellant’s numerous objections to the “lifestyle” evidence included testimony related to: a) C.J. Frank; b) Appellant’s alleged adulterous acts; and c) Appellant’s dog track visitations.

VI. Whether the trial court erred in the denial of Appellant’s objection to the Commonwealth’s opening statements and subsequent testimony related thereto as to the specific areas: a) alleged bad checks issued to Jay Altland; b) C.J. Frank as a “kept” woman; c) the existence of C.J. Frank at the time Appellant was married with children; and d) subsequent consequences to alleged victims of Appellant’s lack of repayment of alleged loans.

VII. Whether the trial court erred in the denial of Appellant’s objection to the testimony involving the alleged misuse of a credit card in Ohio in 1981 adduced through the testimony of Elaine Surma and Josephine Sorozak.

VIII. Whether the trial court erred in the denial of Appellant’s objection to testimony involving an alleged offer of a Florida vacation by Appellant to Janice Lilac.

IX. Whether the trial court erred in the denial of Appellant’s objection to the testimony of Jay Altland of the following matters: a) Appellant’s relationship to C.J. Frank; b) dinner at Club LeCont; c) Tennessee football tickets.

X. Whether the trial court erred in the denial of Appellant’s objection to the entire testimony of Patricia Bork.

XI. Whether the trial court erred in the denial of Appellant’s objection to the testimony of Carole Sherwood relating to the consequences of Appellant’s failure to timely repay the loan in question.

XII. Whether the trial court erred in the denial of Appellant’s objection to the testimony of Laura Nickel relating to the consequences of her loan to the Appellant.

XIII. Whether the trial court erred in the denial of appellant’s objections to the testimony of Sharon Toomey relating to Appellant’s alleged statements related to Jay Altland.

XIV. Whether the trial court erred in the denial of Appellant’s objections to the testimony of Gene Kinnett in the following particulars: a) alleged death threat statement made by Appellant relating to Jay Altland; b) evidence as to Appellant’s relationship with C.J. Frank and Appellant’s gambling habits; and c) alleged statements of Janice Lilac relating to Appellant’s lack of credit.

XV. Whether the trial court erred in the denial of Appellant’s objections to the testimony of Arnold Repaise in the following particulars: a) testimony of statement by Appellant in reference to money’s [sic] allegedly borrowed from Josephine Sorozak; and b) testimony relating to Appellant’s relationship with C.J. Frank and Appellant’s dog track visitations.

XVI. Whether or not it is harmless error when the improper admission of evidence has an accumulating prejudicial effect without the requisite degree of probity so as to deny Appellant a fair trial and have a jury render its verdict based on collateral matters and a rejection of a lifestyle rather than a conviction for specific allegations.

XVII. Whether the trial court erred in refusing to allow the testimony offered by Appellant from witnesses, James Whittington, Raymond Whittington, and James Loudermilk as to matters essential to the prosecution of the defense which prevented Appellant from fully being able to defend the charges.

XVIII. Whether the evidence was sufficient to sustain convictions on counts 1, 3, 5, 6, 7, 8, 9, 10, 12, 15 and 16, beyond a reasonable doubt in that the Commonwealth failed to establish beyond a reasonable doubt, all the requisite elements of the offenses charges [sic].

XIX. Whether trial counsel for the Appellant was ineffective in that trial counsel made errors in judgment and said errors prejudiced the outcome of the case.

Counsel for appellant either totally disregarded the rules of appellate procedure or demonstrates a lack of knowledge of them. First, appellant’s brief’s Table of Contents is missing the page numbers which should refer us to the various parts of the brief. Although the rules do not specify that reference page numbers are required, it goes without saying the table of contents is quite ineffective without them. The statement of questions involved is over two pages long, in flagrant violation of Rule 2116(a) which states:

(a) General Rule. The statement of the questions involved must state the question or questions in the briefest and most general terms, without names, dates, amounts or particulars of any kind. It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no ex-ception____ (Emphasis added.)

The statement of the case is nineteen pages long despite Rule 2117(a)(4) which requires this section be in “closely condensed” form. Appellant’s brief barely meets the requirement of Rule 2135 that the brief be no longer than 50 pages; however, this Court had to count the pages since they are not numbered as required by Rule 2173. Further, appellant does not include a summary of argument as required by Rule 2111(a) in accordance with Rule 2118 (doing so would have caused the brief to exceed 50 pages).

The most grievous violation is appellant’s failure to file a statement of matters complained of as ordered by the trial court pursuant to Rule 1925(b) which states as follows:

(b) Direction to file statement of matters complained of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

On this basis we are constrained to dismiss appellant’s appeal because we cannot effectively review appellant’s issues without the trial court Opinion. In Ryan v. Johnson, 369 Pa.Super. 377, 535 A.2d 207 (1987), we dismissed an appeal where appellant’s statement of matters complained of was “vague and cryptic.”

The purpose of Rule 1925(b) is to provide the appellate court with the lower court’s reasoning so that unless appellant informs the lower court of her complaints, the lower court will not be aware of the issues which must be addressed in its memorandum opinion.

Id., 369 Pa.Superior Ct. at 380, 535 A.2d at 208.

Since the trial court in Ryan was not adequately informed of the complaints being made on appeal, it could not render an explanatory opinion on which our Court could rely to decide the issues.

We are therefore left to review the issues which appellant has briefed totally without the benefit of the lower court’s discussion and rationale for its order. This necessarily has a serious impact on our ability to exercise effective review for we are unable to discern whether the trial court erred in its application of the pertinent law or whether its refusal to open or strike the confessed judgment constituted an abuse of discretion.

Id., 369 Pa.Superior Ct. at 381, 535 A.2d at 209. We elected to treat appellant’s noncompliance with Rule 1925(b) “ ‘as a waiver of all objections to the order ... complained of’ because such noncompliance materially interferes with our ability to exercise effective appellate review.” Id.

In contrast to Ryan, appellant has not even bothered to file a Rule 1925(b) statement, choosing to ignore the trial court's Order. We can find nothing in the record to indicate why appellant failed to comply, therefore, we exercise our discretion and find appellant has waived all objections he makes “to the order, ruling or other matter complained of.” Pa.R.A.P. 1925(b).

As stated in Ryan, “[t]o relinquish our discretion in cases where a party has failed to comply with Pa.R.A.P. 1925(b) will effectively emasculate the rule, and totally undercut the purpose for which it was formulated.” Id., quoting Barrick v. Fox, 73 Pa.Commw. 6, 9, 457 A.2d 208, 209 (1983). Had such a statement of matters complained of been filed and the trial court given an opportunity to address them, it is quite likely appellant would have abandoned at least some of his issues as being adequately addressed by the trial court. In addition, it would have provided an opportunity for the arguments to be focused with adequate references to the record and bolstering citations of law. This was an extensive trial, beginning with pretrial arguments on June 5, 1987 and ending with the verdicts on July 29,1987, resulting in 17 volumes of recorded testimony. To ask this Court to do the exhaustive review of that record on the unstructured brief supplied by the appellant, with no assistance from the trial judge who sat throughout the proceeding, makes a mockery of appellate review. Our system of appellate review provides an effective expeditious means for fair examination of the issues and resolution of them. It depends, however, on counsel and the trial court adhering to the Rules of Appellate Procedure if the system is not to be paralyzed. While it appears there may be issues of arguable merit to be considered on appeal, we are unable to reach them because of failure to present them properly.

Appeal dismissed.

Jurisdiction relinquished.


source: Caselaw Access Project

author: HESTER, Judge: KELLY, Judge,

license: Public Domain

text:
    548 A.2d 260
    COMMONWEALTH of Pennsylvania v. Richard Robert REEVES, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1988.
    Filed Aug. 15, 1988.
    Reargument Denied Oct. 6, 1988.

      Mark L. Newman, Assistant Public Defender, Stroudsburg, for appellant.
    Jane Roach, Assistant District Attorney, Allentown, for Com., appellee.
    Before KELLY, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

On July 10, 1986, a jury convicted appellant, Richard Reeves, and three co-defendants of possession of a controlled substance and conspiracy to possess a controlled substance with intent to deliver. The verdict culminated a two-year investigation by Pennsylvania State Police into drug trafficking in northeastern Pennsylvania. During their investigation, police utilized court-ordered pen registers and wiretaps of the telephone lines of two of appellant’s co-defendants and several other suspected drug dealers.

Following the denial of post-trial motions, the court sentenced appellant on August 11, 1987, to two concurrent two-to-four year terms of imprisonment and the payment of fines and costs. This appeal followed. We affirm.

Appellant first argues that the Commonwealth failed to try him within one hundred eighty days as required by Pa.R.Crim.P. 1100, and that this violation of Rule 1100 requires the charges against appellant to be dismissed. Police filed a complaint against appellant on March 24, 1985; trial commenced on July 7, 1986, four hundred seventy days later. In the interim, the Commonwealth had filed a petition for extension on October 28, 1985. Appellant argues that during the time between the filing of the complaint and the Commonwealth’s petition to extend the rúndate, only sixteen days, resulting from defense counsel’s petition for an extension to file an omnibus pretrial motion, may be charged against appellant. Thus, appellant argues, the Commonwealth’s petition to extend the rúndate was untimely-

We agree with the trial court that the numerous pretrial motions filed by appellant and his co-defendants, which in turn triggered extensions within which to file various pretrial motions, and continuances granted to address pending discovery, delayed appellant’s trial. The trial court stated:

In the present case, the Commonwealth filed its extension petition 218 days after the complaint was filed. Sixteen days are chargeable to Defendant for his granted petition for extension to file Omnibus Pretrial Motions. An additional 85 days expired from the time Defendant filed his Omnibus Pretrial Motions on August 8, 1985, until October 28, 1985, when the Commonwealth filed an extension petition. See Commonwealth v. Ludwig, No. 791 Criminal 1984, slip op., p. 11 (Monroe County, 1985) (omnibus motions may be viewed as an implicit request for a continuance which is excludable under Rule 1100). Thus, there is a net total of 101 days of the 218 chargeable to the Defendant, leaving the Commonwealth with 63 days in which to file for an extension.

Opinion in support of denial of post-trial motions, 6/18/87, at 5, 6. See also Commonwealth v. Mason, 358 Pa.Super. 562, 518 A.2d 282 (1986) (delay in commencement of defendants’ trial resulted from filing of their pretrial motion to quash indictments; such delay was not judicial, but due to defendants’ unavailability); accord Commonwealth v. Bond, 350 Pa.Super 341, 504 A.2d 869 (1986) (Spaeth, P.J., concurring) (implicit in defendant’s pretrial motion was request that she not be tried until court ruled on motion, which thus amounted to a continuance); id. (Wieand, J., concurring) (defendant’s pretrial motion rendered her unavailable for trial).

Any delay caused by the unavailability of a defendant is excluded from computation of the Rule 1100 period. Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). “The key inquiry is not the period of a defendant’s unavailability, but the period of delay caused by that unavailability.” Commonwealth v. Armstead, 359 Pa.Super. 88, 91, 518 A.2d 579, 581 (1986).

The chronology of the pretrial activity herein is complicated. Appellant filed an omnibus pretrial motion on August 5, 1985, after first receiving an extension of time until June 26, 1985, an additional omnibus pretrial motion on February 19, 1986, more than nine months after arraignment, and an amended omnibus pretrial motion on June 10, 1986, nearly two years after arraignment. There were issues concerning suppression of evidence, motions for discovery and consolidation, extensions of the period of discovery, briefing opportunities requested, multiple defendants involved and complex issues in controversy. On July 7, 1986, merely five days after the court issued its order and opinion disposing of the pretrial motions, the Commonwealth called the case for trial.

This case is similar to Commonwealth v. Atkinson, 364 Pa.Super. 384, 528 A.2d 210 (1987), wherein we held that trial could not have begun within one hundred eighty days due to the duplicity and complexity of pretrial motions filed by the defendant, and their attendant lengthy conferences and proceedings.

Accordingly, we find the trial court properly exercised its discretion, id., and reject appellant’s argument.

Appellant next argues that the Commonwealth lacked probable cause to obtain the court-ordered wiretaps. In the alternative, he asserts that probable cause was the product of prior illegally obtained evidence. Again, we disagree with appellant and affirm the trial court’s rejection of this issue.

In Commonwealth v. Doty, 345 Pa.Super. 374, 498 A.2d 870 (1985), this court considered the applicable standards in determining the existence of probable cause supporting an application for an order authorizing a wiretap.

An application for an order authorizing interceptions of telephone communications must contain, inter alia, the identity of the person, if known, committing the offense under investigation and whose communications are to be intercepted. It must also contain details about particular offenses, the type of communications to be intercepted, and must show that there is probable cause to believe that pertinent communications will be transmitted on the facility under surveillance. 18 Pa.C.S. § 5709(3). The standard for determining whether probable cause existed [for a wiretap or a pen register] is the same as that used to determine cause for search warrants. See: United States v. Talbert, 706 F.2d 464, 467 (4th Cir.1983); United States v. Falcone, 505 F.2d 478, 481 (3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975). The facts contained in the affidavit for a search warrant must be such that an independent, issuing authority, exercising reasonable caution, can conclude that the items sought are connected with criminal activity and that they will be found in the place to be searched. Commonwealth v. Council, 491 Pa. 434, 443, 421 A.2d 623, 627 (1980); Commonwealth v. Ryan, 300 Pa.Super. 156, 167, 446 A.2d 277, 283 (1982). Similarly, in an application for a wiretap, the Commonwealth must establish probable cause to believe that (1) a person has or is about to commit one of the offenses enumerated in the statute, (2) that communications relating to that offense will be transmitted, and (3) that such communications will be interrupted on the facility under surveillance.

Id., 345 Pa.Superior Ct. at 397-98, 498 A.2d at 881-82.

Pennsylvania State Trooper Thomas Bachman, the affiant on the applications for wiretaps and pen registers, Notes of Testimony (N.T.), 5/20/86, at 12, had been a state policeman for seventeen years, and possessed expertise in investigating narcotics and vice related crimes as well as the use of electronic investigatory equipment. He set forth facts, corroborated by information obtained by FBI agents from confidential informants, N.T., 4/18/86, at 212, which the issuing authority found sufficient to constitute probable cause for granting the pen registers and wiretaps. It is unnecessary to recite those facts in this opinion. Commonwealth v. Leta, 346 Pa.Super. 552, 500 A.2d 85 (1985), petition for allowance of appeal of appellant Baldassari denied, 514 Pa. 645, 524 A.2d 492 (1987), petition for allowance of appeal of appellant Leta granted, 514 Pa. 646, 524 A.2d 493 (1987). The facts have been recited in the opinion denying post-verdict motions and the thorough opinion of the suppression court, filed July 2, 1986. Those facts, based upon our review of the notes of testimony, the record and the trial court’s opinions, demonstrate that probable cause existed for granting utilization of wiretaps and pen registers.

Appellant also complains that Trooper Bachman obtained information from other state policemen, Troopers Saleski and Troupe. As we stated in Commonwealth v. Leta, supra, “It is proper for an affiant to rely upon information provided by other law enforcement officers.” Id., 346 Pa.Super. at 558 n. 5, 500 A.2d at 88 n. 5.

Appellant argues that the “Commonwealth has failed to explain what minimization techniques were used____” Appellant’s brief at 5. Every order authorizing a wiretap must contain a requirement that the interception be conducted so as to minimize the interception of communications not subject to seizure. 18 Pa.C.S. § 5712(b). In Commonwealth v. Doty, supra, this court stated, “The purpose of minimization is to reduce the scope of an intrusion while at the same time allowing legitimate law enforcement aims to be pursued.” Id., 345 Pa.Super. at 399, 498 A.2d at 882. We also stated that minimization must be a question of what is practical and reasonable under the circumstances of each case, including an evaluation of the following circumstances: the nature of the investigation, the length of the calls, the percentage of pertinent calls, whether calls between the same parties are repeated, whether the contents of calls are ambiguous, whether coded language is used and whether patterns develop during the surveillance. Id.

The order issued by Judge Tamilia of this court confined the time of interception to twenty days and directed that it terminate as soon as practicable. Regarding appellant’s argument concerning minimization, the suppression court stated, and we endorse:

The affidavit of probable cause reveals a wide spread conspiracy to distribute methamphetamine in large quantities in the Philadelphia area, the Pocono region extending into Luzerne and Wyoming Counties. The scope of criminal activity was extensive. It involved the criminal activities of a substantial number of people____ It shows extensive criminal activity in the sale and distribution of methamphetamine over a substantial area of the Pocono region by people who have been arrested, convicted and sentenced for drug violations.
The pen register records show an abnormal use of the telephones. Many calls between the same persons, all known drug dealers, in a single day. These records show clearly that the telephones were not for normal use primarily but the conduits between the drug dealers to accomplish their objectives to sell illegal drugs, particularly methamphetamine.
The police in terminating the wiretapping within the time period fixed by the Court and not seeking an extension of said time period, both satisfied the requirement of the Court as well as the statutory minimization provisions.
The record shows that the police made a conscious effort to minimize the intrusion into the privacy of the Defendants’ telephone conversations. They intercepted only pertinent calls, calls which identified the conspirators, informed them of the nature of the criminal activity planned and the time and place it was to occur. They did not intercept general calls. A supervisor was present at the listening post at all times and any grey area was discussed by telephone with the District Attorney.
The District Attorney approved the minimization plan, monitored it personally by repeated visits to the listening post. The District Attorney also approved the names and identification of the police officers used in monitoring the telephone calls. Only pertinent calls were intercepted and transcribed.
The evidence shows that the District Attorney properly supervised the wiretapping. It further shows that the police avoided any unreasonable intrusion into the privacy of the Defendants’ telephone conversations.

Suppression court opinion at 12-14. See also N.T., 4/17/86, at 179-84.

Based upon our review of the record, the notes of testimony, the opinions of the trial court and the pertinent law, we conclude that probable cause existed for the issuance of the court-ordered wiretaps.

Appellant next argues that the failure to provide appellant with a preliminary hearing within three to seven days of arraignment requires dismissal of the charges against him. We disagree.

Appellant, arrested and arraigned March 24, 1985, had his preliminary hearing on April 29, 1985. The hearing, originally scheduled for March 27, 1985, was continued at the request of the Commonwealth until April 17, 1985, and continued again until April 29, 1985. Appellant alleges a violation of Pa.R.Crim.P. 140(d), which provides, in pertinent part:

(d) Unless the preliminary hearing is waived by a defendant who is represented by counsel, the issuing authority shall:
(1) fix a day and hour for a preliminary hearing which shall not be less than three nor more than ten days after preliminary arraignment unless extended for cause shown, unless the issuing authority fixes an earlier date upon request of the defendant or his attorney with the consent of the complainant and the attorney for the Commonwealth;

He argues that the failure to hold the preliminary hearing within the time period fixed by Rule 140(d) requires the charges against him to be dismissed.

In support of his claim, appellant cites Commonwealth v. Wansley, 248 Pa.Super. 234, 375 A.2d 73 (1977), and Commonwealth v. Donahue, 357 Pa.Super. 503, 516 A.2d 373 (1986). However, neither Wansley nor Donahue are applicable to the instant case. In Wansley, the defendant filed a petition for a writ of habeas corpus seventeen days before the date to which his preliminary hearing was rescheduled. In Donahue, the defendants filed habeas corpus petitions on April 22, 1985, seven days before the rescheduled preliminary hearing. In contrast, appellant Reeves failed to allege any defect before or at the preliminary hearing. It appears that appellant first raised the issue in his additional omnibus pretrial motion filed February 19, 1986, which was nearly ten months after the preliminary hearing was held.

We are guided by the remedial rule contained in Chapter 100 of the Rules of Criminal Procedure, Rule 150, and this court’s consideration of that rule’s applicability to Pa.R. Crim.P. 130 in Commonwealth v. Schimelfenig, 361 Pa.Super. 325, 522 A.2d 605 (1987). Pa.R.Crim.P. 150 provides, in pertinent part:

A defendant shall not be discharged nor shall a case be dismissed because of a ... defect in the procedures of this Chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant.

We concluded in Schimelfenig that fourteen of the fifteen defendants had waived their claim of delay by failing to preserve the Rule 130 argument before the conclusion of the preliminary hearing.

Similarly, appellant Reeves, unlike the defendants in Commonwealth v. Donahue, supra, and Commonwealth v. Wansley, supra, failed to timely raise the alleged violation of Pa.R.Crim.P. 140(d).

We are mindful of our supreme court’s admonition in Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987), in addressing the applicability of Rule 150 to other rules enumerated in Chapter 100 of the Rules of Criminal Procedure, that

[t]he time limits established in our Rules do require strict compliance, and when such compliance does not exist a defect in procedure has occurred. That defect however then triggers the separate and distinct analysis as to what is the proper remedy. As we have previously indicated, when a defect occurs under Chapter 100 the remedy is explicitly provided in Rule 150.

Id., 516 Pa. at 71-72, 532 A.2d at 10 (emphasis in original).

Discharge, appellant’s requested remedy, in light of the untimely nature of his request, may not be granted. Accordingly, we reject his argument that the charges against him must be dismissed.

The final two issues presented for our review are whether the trial court erred in admitting wiretap number one, and whether the suppression court erred in granting the Commonwealth’s petition to consolidate. These issues, although stated in appellant’s post-verdict motions, were not argued in the brief filed in support of those motions, and were not addressed by the trial court in its opinion in support of the denial of post-verdict motions. Further, appellant has not provided a transcript containing the arguments to the court relating to post-verdict motions, nor has he alleged that he argued these two issues to the trial court. The Pennsylvania Supreme Court has made it “abundantly clear” that only issues “which are raised in a post-trial motion in accordance with [Pa.R.Crim.P.] 1123, and briefed or argued before the court hearing the motion, will be considered preserved for appellate review.” Commonwealth v. Manigault, 501 Pa. 506, 509, 462 A.2d 239, 241 (1983) (emphasis added). See also Commonwealth v. Gordon, 364 Pa.Super. 521, 528 A.2d 631 (1987) (issue not included in brief filed with post-trial motions indicates defendant has abandoned claim and waived contention for purpose of appeal); Commonwealth v. Dougherty, 351 Pa.Super. 603, 506 A.2d 936 (1986) (issues neither orally argued nor briefed are abandoned); Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985) (issues raised in post-verdict motions but not briefed or argued to trial court, nor addressed by trial court, are waived.)

This court has stated:

The doctrine of waiver is now a critical procedural mechanism that fosters meaningful appellate review____ [T]he necessity of raising a specific objection at each and every stage of a proceeding is of paramount importance ---- Without the stringent application of the waiver doctrine,
[ajppellate court consideration of issues not raised in the trial court results in the trial becoming merely a dress rehearsal. This process removes the professional necessity for trial counsel to be prepared to litigate the case fully at trial and to create a record adequate for appellate review.

Commonwealth v. Burchard, 349 Pa.Super. 456, 460, 503 A.2d 936 (1986), quoting Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Accordingly, we hold that these two issues are waived. Judgment of sentence affirmed.

KELLY, J., files a concurring statement.

KELLY, Judge,

concurring:

I join in the opinion of the majority. I write separately to note that my joinder in no way indicates agreement with this Court’s decision in Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984), appeal dismissed 508 Pa. 319, 496 A.2d 1143 (1985), which held that a warrant based upon probable cause was required to justify installation of a pen register device.

I am of the opinion that the middle ground analysis recently embraced by our Supreme Court in Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987) (upholding the constitutionality of systematic drunk driving roadblocks) and Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987) (upholding the constitutionality of canine sniff searches based upon reasonable suspicion), would compel different analysis and a different conclusion than that of this Court in Beauford. Cf. Commonwealth v. Schaeffer, 370 Pa.Super. 179, 224-269, 536 A.2d 354, 377-400 (1987) (Kelly, J., dissenting) (similar analysis relating to consensual electronic participant monitoring); Commonwealth v. Leninsky, 360 Pa.Super. 49, 519 A.2d 984 (1986) (per Kelly, J.) (similar analysis relating to systematic drunk driving roadblocks).

      . A pen register records outgoing numbers dialed on a telephone line but does not monitor the contents of any communication or record the origin of any incoming communication. 18 Pa.C.S. § 5702.

      . Appellant, in a conclusory manner, states that all delays in this case resulted from the Commonwealth’s failure to provide mandatory discovery. However, this allegation is unsubstantiated; appellant fails to support this claim with evidence of record. In fact, he fails to make an adequate argument to enable this court to address his claim. In the absence of any reference to the presentation and disposition of this allegation by the trial court, we decline to address the claim.

      . Kevin Donahue and Susan Kitchener, the appellants in Commonwealth v. Donahue, supra, were original co-defendants with appellant Reeves.

      . We have been advised by the trial court that a stenographer was not present at the argument on post-verdict motions.


author: CERCONE, Judge: OLSZEWSKI, Judge,

text:
    548 A.2d 266
    COMMONWEALTH of Pennsylvania v. Barbara J. MELNYK, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1988.
    Filed Sept. 12, 1988.

      Rosemary Dann, Assistant Public Defender, Wallingford, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, New-town Square, for Com., appellee.
    Before McEWEN, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

Barbara Jane Melnyk appeals from the Judgment of Sentence imposed following a conviction on two counts of welfare fraud.

From September, 1980 to October, 1984, Melnyk was gainfully employed while receiving public assistance. Because she failed to report the earned income, she wrongfully obtained a total of $10,789.00 ($9,967.00 for public assistance and $822.00 for food stamps). Through her attorney, Melnyk requested placement on the accelerated rehabilitative disposition (hereinafter “ARD”). An ARD hearing was scheduled for April 16, 1986 at which time appellant appeared. For some unexplained reason, the hearing was not conducted. She again appeared on April 21, 1986 for a scheduled “back up trial date”. At that time, appellant requested a continuance for the scheduling of an ARD hearing. At the April 21st hearing, appellant agreed to waive her Rule 1100 rights for any period of time involved in ARD proceedings, she asserted that she was willing and able to pay court costs for ARD, and that she was willing to make a good faith effort to pay restitution in the amount of $10,789.00. The ARD Division of the District Attorney’s Office of Delaware County indicated that if Melnyk could demonstrate a present ability to pay restitution in the amount of $10,789.00 within the ARD period, she would be otherwise eligible for inclusion in the ARD program. Because Melnyk lacked the ability to pay restitution, the district attorney’s office refused to recommend her as an appropriate ARD candidate. After reviewing her income and assets, the court, being satisfied that appellant lacked the present ability to pay restitution, denied her application for continuance and set the cause for trial. In a non-jury trial, she was found guilty of welfare fraud and sentenced to two years probation and ordered to pay restitution in the amount of $10,789.00. This appeal followed.

On appeal, Melnyk contends that the lower court and district attorney’s office committed error of constitutional dimension. She argues that denying inclusion in the ARD program solely on the basis of an applicant’s indigency violates the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution. U.S. Const., art xiv. Appellant also contends that the district attorney’s office exceeded its authority granted by the Pennsylvania Rules of Criminal Procedure governing ARD treatment. See Pa.R.Crim.P., Rules 175-185, 42 Pa.C. S.A. Finally, appellant contends that the lower court abused its discretion in the sentence imposed.

I.

The ARD program provides a pretrial disposition of certain cases in which the attorney for the Commonwealth agrees to suspend prosecution for an agreed upon period of time in exchange for the defendant’s successful participation in a rehabilitation program, the terms of which are to be determined by the court and applicable statutes. Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). The program is governed by Rules 175 to 185, supra. Under the rules and relevant caselaw, the district attorney has the sole discretion to submit or refuse to submit a case for ARD. Id.; Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986). In Lutz, the district attorney’s discretion was circumscribed as follows:

... the decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and or the likelihood of a person’s success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on this view of what is most beneficial for society and the offender. Compare Shade v. Commonwealth of Pennsylvania Department of Transportation, 394 F.Supp. 1237, 1242 (M.D.Pa.1975), citing Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).

508 Pa. at 310, 495 A.2d at 935.

The district attorney’s discretion in ARD placement is also circumscribed by the rules of criminal procedure. In Shade v. Commonwealth of Pennsylvania, Department of Transportation, supra, the District Court stated:

The conditions of the ARD program may be the same as may be imposed with respect to probation after conviction of a crime, including restitution and costs, and any other conditions agreed to by the parties, except that a fine may not be imposed and the period of the ARD program cannot exceed two years.

394 F.Supp. at 1240 (referring to Rule 182, supra). The Sentencing Code, 42 Pa.C.S.A. §§ 9701-9781, provides guidelines for the imposition of probation as an alternative to incarceration. It grants the court wide discretion to attach reasonable conditions as terms of probation. However, the court may only order restitution “in an amount [defendant] can afford to pay”. Id. § 9754(c). It is incumbent upon the court to determine the defendant’s ability to make restitution and to order restitution which serves the dual purpose of achieving rehabilitation of the defendant as well as providing the complainant with some measure of redress. Commonwealth v. Erb, 286 Pa.Super. 65, 428 A.2d 574 (1981). See also Commonwealth v. Fuqua, 267 Pa.Super. 504, 508, 407 A.2d 24, 26 (1979) (“a court’s concern that the victim be fully compensated should not overshadow its primary duty to promote the rehabilitation of the defendant”).

Thus, while the district attorney has sole discretion to move for a defendant’s admission into ARD, the prosecutor may not summarily reject a person from consideration for improper reasons. In the case sub judice, the district attorney admitted that, but for appellant’s inability to make restitution within a two-year ARD period, she was fully suitable for ARD placement.

II.

Melnyk contends that the district attorney’s office has made an impermissible distinction between two classes of individuals who are otherwise equally acceptable for ARD disposition: those who have the present ability to pay restitution in full within two years and those who, because of indigency and in spite of the willingness to make bona fide efforts to pay, do not have that same ability. She asserts that this impermissible distinction violates her constitutionally protected rights to equal protection and due process.

When reviewing a constitutional claim provided in the United States Constitution, we seek guidance from opinions emanating from the United States Supreme Court. While we have found no case which addresses the consideration of indigency in a pretrial disposition proceeding, there are numerous cases which have given extensive consideration to the rights of indigent persons in the criminal justice system. Several cases involve an indigent defendant’s right to appeal. While affirming the principle that a state is under no obligation to provide any criminal defendant with an appeal, McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894), the Supreme Court has consistently held that if the state does provide such a procedure as a matter of right, it must be available to all defendants, regardless of financial ability.

In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Supreme Court struck down an Illinois rule which allowed a convicted criminal defendant to present claims of trial error to the appellate court only if accompanied by a transcript of the testimony adduced at trial. The rule allowed no exception for indigent defendants, regardless of their financial ability to obtain such transcript. The Court in Griffin held that this discrimination violated the Fourteenth Amendment. Succeeding cases invalidated similar financial barriers to the appellate process. In Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), the Court struck down an Indiana provision declaring that only a public defender can obtain a free transcript of a hearing on a coram nobis application. If the public defender declined to request one, the indigent prisoner seeking to appeal had no recourse. In Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), the Court struck down a state rule that permitted an indigent to obtain a free transcript of the trial only if he satisfied the trial judge that his contentions on appeal would not be frivolous. The appealing defendant was in effect bound by the trial court’s conclusions in seeking to review the determination of frivolousness, since no transcript or its equivalent was made available to him. In Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961), and Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959), the Court determined that state-imposed financial barriers to the adjudication of a criminal defendant’s appeal was violative of the Fourteenth Amendment.

Subsequently, the Supreme Court addressed the constitutionality of requiring a criminal defendant to undergo imprisonment solely because of his or her indigency. The Court again concluded that this constituted invidious discrimination in violation of the equal protection and due process clauses of the Fourteenth Amendment. In Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), the Court determined that imprisonment of an indigent solely because he was too poor to pay fines imposed by a state court for traffic offenses which were punishable by fines only, constituted intolerable discrimination in violation of the equal protection clause of the Fourteenth Amendment. Following its holding in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), the Tate court reasoned, “[T]he Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status.” 401 U.S. at 398-99. 91 S.Ct. at 671, 29 L.Ed.2d at 133. See also Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) (state court erred in revoking parole for failure to pay restitution without first determining probationer’s ability to pay); Commonwealth ex rel. Benedict v. Cliff, 451 Pa. 427, 304 A.2d 158 (1973) (reversed judgment of sentence which required incarceration for failure to immediately comply with imposition of fine); Commonwealth v. Jones, 447 Pa. 228, 286 A.2d 892 (1971) (holding that same standard for review of waiver of constitutional right must be applied whether defendant represented by private or court-appointed counsel);

As was recognized in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974),

“Due process” emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. “Equal protection,” on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.

417 U.S. at 608-09, 94 S.Ct. at 2437, 41 L.Ed.2d at 350.

In Bearden, supra, the Court recognized that due process and equal protection principles converge in the Court’s analysis in these types of cases, 461 U.S. at 665, 103 S.Ct. at 2068, 76 L.Ed.2d at 228, and that each analysis has been used in different cases. The Bearden court proceeded to disposition by way of a due process analysis and stated that,

Whether analyzed in terms of equal protection or due process, the issue cannot be resolved by resort to easy slogans or pigeonhole analysis, but rather requires a careful inquiry into such factors as “the nature of the individual interest affected, the rationality of the connection between legislative means and purpose, [and] the existence of alternative means for effectuating the purpose----” Williams v. Illinois, supra [399 U.S. 235], at 260, 26 L.Ed.2d 586, 90 S.Ct. 2018 [2031], 52 Ohio Ops.2d 281 (Harlan, J., concurring).

461 U.S. at 666-67, 103 S.Ct. at 2069, 76 L.Ed.2d at 229. Following the Supreme Court’s lead, we will apply a due process analysis in deciding the case before us.

In response to appellant’s due process claim, the Commonwealth argues that admission into ARD is a privilege and not a fundamental right. Therefore, as long as the reason behind requiring one to to have the ability to pay restitution is not arbitrary, the requirement should be upheld. The Commonwealth assert^ that the purpose of restitution is to impress upon the offender the loss that offender has caused and, therefore, the requirement that an ARD applicant show a present ability to pay full restitution is not arbitrary and capricious.

For a due process analysis to be applied, the defendant need not prove that she was denied a fundamental right. This is apparent from earlier cases cited in which the court recognized that an appeal is not a fundamental right but once granted as a matter of right, a State cannot arbitrarily-cut off the appeal rights of indigents while leaving open avenues of appeal for more affluent persons. Similarly, the statutory ceiling placed on imprisonment for any substantive offense must be the same for all defendants regardless of their economic status, Tate v. Short, supra, and the terms of probation must be applied to all defendants alike. Bearden v. Georgia, supra. Likewise, the ARD program is a discretionary program, available only to those defendants who show a propensity to be rehabilitated without final adjudication of the charges against them. The considerations involved in placing a convicted defendant on probation are similar to the considerations involved in placing a defendant in the ARD program. That is, the decision to place the defendant on probation reflects a determination by the sentencing court that the State’s penal interests do not require imprisonment. Likewise, the district attorney’s decision that a defendant is appropriate for ARD placement indicates that the State’s penological interest does not require prosecution of the charges against him or her if the defendant successfully completes the reasonable conditions of the ARD program.

Reviewing a State’s decision from a due process perspective requires more than a mere determination that the state was not “arbitrary”, as the Commonwealth suggests. Due process encompasses elements of equality and provides the court with a vehicle for enforcing the constitutional principle that all criminal defendants are treated with “fundamental fairness”, the touchstone of due process. Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973). Thus, while the State may impose the same condition upon all potential ARD candidates in a nonarbitrary manner, the dictates of due process may, nonetheless, be offended.

The Supreme Court’s ruling in Bearden v. Georgia, supra, is most apposite to our ease. Relying on Williams and Tate, the Supreme Court determined that a state court erred in revoking the probation of a defendant on the basis that the defendant had failed to pay a fine and the restitution upon which his probation had been conditioned, without first determining that the probationer had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist. The court reasoned, “[I]f the state determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it.” 461 U.S. at 667, 103 S.Ct. at 2070, 76 L.Ed.2d at 229. The court clearly distinguished this substantive limitation on the imprisonment of indigents from the situation where a defendant was at fault in failing to pay a fine.

The distinction, based on the reasons for nonpayment, is of critical importance here. If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection. Similarly, a probationer’s failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution may reflect an insufficient concern for paying the debt he owes to society for his crime. In such a situation, the State is likewise justified in revoking probation and using imprisonment as an appropriate penalty for the offense. But if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether alternative methods of punishing the defendant are available. This lack of fault provides a substantial reason which justifies or mitigates the violation and makes revocation inappropriate.

461 U.S. at 668-69, 103 S.Ct. at 2070, 76 L.Ed.2d at 230. (citations and footnotes omitted)

The state merely argues that the purpose of restitution is to impress upon appellant the loss that she has caused. While this is an appropriate State interest in rehabilitating appellant, protecting society, punishing the lawbreaker and deterring others form similar criminal behavior, we must determine whether these interests can be served by alternative means. Once again, we find guidance in Bearden.

The State is not powerless to enforce judgment against those financially unable to pay a fine. For example, the sentencing court could extend the time for making payments [not an option in our case], or reduce the fine, or direct that the probationer perform some form of labor or public service in lieu of the fine. Justice Harlan appropriately observed ... “the deterrent effect of a fine is apt to derive more from its pinch on the purse than the time of payment.” Indeed ... a sentencing court can often establish a reduced fine or alternative public service in lieu of a fine that adequately serves the State’s goals of punishment and deterrence, given the defendant’s diminished financial resources. Only if the sentencing court determines that alternatives to imprisonment are not adequate in a particular situation to meet the State’s interest in punishment and deterrence may the State imprison a probationer who has made sufficient bona fide efforts to pay.

461 U.S. at 672, 103 S.Ct. at 2072, 76 L.Ed.2d at 232 (citations and footnotes omitted).

Following the reasoning set forth, we hold that in ARD determinations, the district attorney and the court must inquire into the reasons for the petitioner’s inability to pay restitution. If the petitioner shows a willingness to make a bona fide effort to pay whole or partial restitution, the State may not deny entrance to the ARD program. If the petitioner has no ability to make restitution despite sufficient bona fide efforts to do so, the State must consider alternative conditions for admittance to and completion of the ARD program. To do otherwise would deprive the petitioner her interest in repaying her debt to society without receiving a criminal record simply because, through no fault of her own, she could not pay restitution. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.

Returning to the fact of this case, the Commonwealth concedes that but for her inability to make full restitution within the two year ARD period, appellant would be considered for the ARD program. Appellant asserts that she was willing and able to pay court costs and that she was willing to make a good faith effort to pay restitution. Based on this scenario, we conclude that the State’s refusal to place appellant in the ARD program was fundamentally unfair and invidiously discriminated against appellant because of her economic status. Accordingly, appellant’s conviction and judgment of sentence are vacated. Case remanded to the trial court (with directions that appellant be admitted to the ARD program subject to such conditions as are not inconsistent with this Opinion). Jurisdiction relinquished.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent from the holding of my very distinguished colleagues on the basis of the fundamental principles of accelerated rehabilitative disposition enunciated by our Supreme Court in Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985).

Accordingly, I would affirm the conviction and judgment of sentence.

      . While the record contains no transcript of the April 21st hearing, the parties later entered a Stipulation and Supplemental Stipulation of Facts into the record. Many of the facts set forth herein are gleaned from those stipulations.

      . Because of our disposition based on appellant’s first claim, we need not address the second and third claims.

      . See discussion in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).

       A due process approach has the advantage in this context of directly confronting the intertwined question of the role that a defendant's financial background can play in determining an appropriate sentence. When the court is initially considering what sentence to impose, a defendant's level of financial resources is a point on a spectrum rather than a classification. Since indigency in this context is a relative term rather than a classification, fitting "the problem of this case into an equal protection framework is a task too Procrustean to be rationally accomplished.” North Carolina v. Pearce, 395 U.S. 711, 723, 23 L.Ed.2d 656, 89 S.Ct. 2072 [2079] (1969). The more appropriate question is whether consideration of a defendant’s financial background in setting or resetting a sentence is so arbitrary or unfair as to be a denial of due process.

      . In Commonwealth v. Fuqua, 267 Pa.Super. 504, 407 A.2d 24 (1979), this Court explained the need for reasonable restitution,
      Restitution can aid an offender’s rehabilitation by strengthening the individual’s sense of responsibility. The probationer may learn to consider more carefully the consequences of his or her actions. One who successfully makes restitution should have a positive sense of having earned a fresh start and will have tangible evidence of his or her capacity to alter old behavior patterns and lead a law-abiding life. Conditioning probation on making restitution also protects the community’s interest in having the victims of crime made whole. However, conditioning probation on the satisfaction of requirements which are beyond the probationer’s control undermines the probationer’s sense of responsibility. Huggett v. State, 83 Wis.2d 790, 798, 266 N.W.2d 403, 407 (1978).
      267 Pa.Super. at 509, 407 A.2d at 26.

      . In Commonwealth v. Wertz, 297 Pa.Super. 319, 443 A.2d 856 (1982), in a per curiam opinion, this Court remanded a case for sentencing with instructions that the lower court consider any evidence presented regarding the defendant’s indigency in determining whether he should be permitted to pay the fine and costs in installments. Further, we ordered the lower court to consider any sentencing alternatives.

      . Accord: Commonwealth v. Church, 513 Pa. 534, 522 A.2d 30 (1987) (reversed lower court’s reduction of statutorily mandated fine when hardship, not inability to pay, was argued); Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977) (reversed civil contempt conviction for failure to make court-ordered support payments where evidence insufficient to conclude contemptnor had present ability to comply); Commonwealth ex rel. Brown v. Hendrick, 220 Pa.Super. 225, 283 A.2d 722 (1971) (same).


author: KELLY, Judge: ROWLEY, Judge,

text:
    548 A.2d 272
    COMMONWEALTH of Pennsylvania v. Michael H. CHILQUIST, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1988.
    Filed Sept. 15, 1988.
    Howard B. Elbling, Assistant Public Defender, Pittsburgh, for appellant.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before CAVANAUGH, ROWLEY and KELLY, JJ.
   KELLY, Judge:

Appellant, Michael H. Chilquist, appeals from judgment of sentence entered following the acceptance of appellant’s guilty plea to charges of robbery and related offenses. We grant allowance of appeal of the discretionary aspects of sentence, and affirm judgment of sentence.

FACTS AND PROCEDURAL HISTORY

On January 5, 1987, appellant robbed a Hills Department Store in Bethel Park, Pennsylvania. While the robbery was still in progress, an employee outside the manager’s office where the robbery occurred noticed the robbery and called the police. The police dispatcher relayed the employees’ description of appellant, his car, and his license plate number to officers on patrol in the area. As appellant attempted to flee he was trapped in stopped traffic and boxed in by an alert police officer in a patrol car. When the officer approached appellant’s vehicle, appellant shifted his car into reverse and attempted to flee. Appellant stated to the officer that he would not be taken alive, and reached for a bag in the car. Nonetheless, the brave officer was able to thwart appellant’s repeated efforts to flee until other officers arrived and appellant was forcibly removed from his car. During his removal, appellant grabbed one of the officer’s guns and was shot in the leg in the ensuing scuffle. Following appellant’s arrest, police seized from the car a sawed off shotgun and 9 millimeter caliber automatic pistol (both loaded) as well as the bullet proof vest appellant had been wearing. A large variety , of other evidence linking appellant to the robbery was also seized.

On May 15, 1987, appellant entered a guilty plea to one count of Robbery, two counts of Violation of the Uniform Firearms Act, one count of Prohibited Offensive Weapon, one count Resisting Arrest, one count Recklessly Endangering Another Person, and three counts of Simple Assault. The plea was accepted following an exhaustive and comprehensive plea colloquy. (N.T. 5/15/87 at 1-30). Sentencing was postponed pending completion of a presentence investigation report. (N.T. 5/15/87 at 30). Notice was given by the Commonwealth of its intent to seek the application of the mandatory minimum sentence provision of 42 Pa.C.S.A. § 9712.

Appellant’s sentencing hearing was conducted on July 14, 1987. Appellant’s counsel presented extended argument regarding mitigating factors and was permitted to summarize for the court uncontested mitigation testimony which would otherwise have been presented by defense witnesses. (N.T. 7/14/87 at 2-5). Appellant made a brief expression of his remorse. (N.T. 7/14/87 at 6). The Commonwealth then presented argument relating to items in the presentence investigation report and in rebuttal to parts of appellant’s mitigation evidence. (N.T. 7/14/87 at 6-9). Appellant was then given a second opportunity to address the court, during which he denied that he had violent tendencies and that he had prepared for a violent conflict before the present robbery. (N.T. 7/14/87 at 9-10).

The trial court then indicated that, in light of great potential for further serious injuries during the commission of the present crime, an aggravated sentence was appropriate. (N.T. 7/14/87 at 11). The court sentenced appellant to a term of imprisonment of ten (10) to twenty (20) years on the Robbery conviction and a consecutive five (5) year term of probation on one of the Violation of the Uniform Firearms Act convictions. In light of the sentence imposed on the first two convictions, the trial court exercised its discretion to impose no further penalty with respect to the remaining convictions. (N.T. 7/14/87 at 12). A timely motion to modify the sentence imposed was denied, and this timely appeal follows.

I.

Appellant contends that the trial court abused its discretion by failing entirely to consider the sentencing guidelines, and by failing to set forth adequate reasons for the sentence imposed. These are challenges to the discretionary aspects of sentence.

Appellant has complied with the procedural dictates of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) , by filing timely notice of appeal and by complying with the provisions of Pa.R.A.P. 2116(b) and Pa.R.A.P. 2119(f). Appellant’s contentions present substantial questions for review, as they allege total non-compliance with applicable guidelines, and the failure to state adequate reasons for the sentence imposed. We exercise our discretion to grant allowance of appeal.

II.

Allowance of appeal, however, will be of little solace to appellant, as we find both his claims to be meritless. First, at the time of sentencing in this case, sentencing guidelines had not validly been adopted. See Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). Hence, the trial court cannot be deemed to have abused its discretion in failing to consider or comply with guidelines which were not constitutionally adopted. See Commonwealth v. Felix, 372 Pa.Super. 145, 161, 539 A.2d 371, 379 (1988) (citing cases). Second, though brief, the trial court’s statement of the reasons for the sentence imposed was plainly adequate. See Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988); see also Commonwealth v. Graham, 372 Pa.Super. 365, 368 n. 2, 539 A.2d 838, 839 n. 2 (1988); Commonwealth v. Darden, supra, 366 Pa.Super. at 605-606, 531 A.2d at 1148; Commonwealth v. Osborn, 364 Pa.Super. 505, 520, 528 A.2d 623, 631 (1987). It is readily apparent on the face of the record that the trial court was fully apprised of the relevant aggravating and mitigating factors via full argument and a comprehensive pre-sentence report. The weight to be given those factors was within the province of the trial court to determine. Commonwealth v. Moran, 369 Pa.Super. 109, 534 A.2d 1103 (1987).

Judgment of sentence is affirmed.

CAVANAUGH, J., concurs in the result.

ROWLEY, J., files a dissenting statement.

ROWLEY, Judge,

dissenting:

For the reasons set forth in my Dissenting Statement in Com. v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988), I would deny appellant’s “petition” for permission to appeal the discretionary aspects of his sentence. In my opinion, his “petition” for allowance of appeal fails to present a substantial question that the sentence imposed is inappropriate under the Sentencing Code.

       In dismissing appellant's claim on this ground, we do not imply that the statement of the reasons for sentencing outside the standard minimum range was inadequate. Appellant conceded the applicability of the five year mandatory minimum sentence provision of 42 Pa.C.S.A. § 9712; thus, a sentence at the upper limit of the standard range would have been the lowest minimum sentence permissible. The trial court, however, found that the danger of serious injury to others caused by appellant was a significant aggravating factor; we agree. Moreover, it is apparent that the trial court considered the related offenses committed as aggravating factors rather than imposing separate sentences for those eonvietions. We find the court’s statement of these reasons adequate and find no abuse of discretion in this respect. Cf. Commonwealth v. Darden, 366 Pa.Super. 597, 607, 531 A.2d 1144, 1149 (1987) ("... facts regarding the nature and circumstances of the offense, which are net necessary elements of the offense for which appellant has been convicted, are also proper factors to consider in deciding whether to sentence in the mitigated minimum range, the aggravated minimum range, or outside the guidelines.’’)


author: MELINSON, Judge:

text:
    548 A.2d 275
    COMMONWEALTH of Pennsylvania v. Herbert MELVIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 11, 1988.
    Filed Sept. 19, 1988.

      Angela C. Lovecchio, Assistant Public Defender, Williamsport, for appellant.
    Brett O. Feese, District Attorney, Williamsport, for Com.
    Before CAVANAUGH, MELINSON and WATKINS, JJ.
   MELINSON, Judge:

This is an appeal from the Order of the Court of Common Pleas of Lycoming County following appellant’s conviction for robbery, terroristic threats, and possession of an instrument of crime. We affirm.

On appeal, appellant, Herbert Melvin, presents the following eight issues, set forth in his “Statement of Issues Involved,” for our consideration:

1. Did the trial court commit error in refusing defense motion for mistrial made subsequent to testimonal [sic] reference by a Commonwealth witness to appellant’s silence?

2. Did the trial court commit error in refusing to allow physical comparison evidence relevant to identifiction [sic] of appellant?

3. Did the trial court commit error in refusing to allow appellant to demonstrate vocal ability in non-testimonial fashion, not subject to cross-examination, relevant to identification of appellant?

4. Did the trial court commit error in refusing as irrelevant stipulation of demonstrative evidence from preliminary hearing as to the witness’ identification of alleged weapon?

5. Was the verdict against the weight of the evidence?

6. Was the sentencing court proper to apply the Deadly Weapon Enhancement Provision of 42 Pa.C.S.A. 9712?

7. Did the sentencing court improperly determine terroristic threats and the robbery as non-merging charges for purposes of sentencing?

8. Was the sentence given excessive?

Brief of Appellant at page 3.

Initially, we must note that appellant has violated Rule 2119 (a) of the Pennsylvania Rules of Appellate Procedure, 42 Pa.C.S.A. Section 101 et seq. Melvin fails to address each of the eight issues separately in the “Argument” section of his brief. Rather than presenting each issue separately, appellant has recited a single argument for issues two, three, four, and five, and, a single argument for issues six, seven, and eight. Despite Melvin’s disregard of Rule 2119(a) and the resulting lack of clarity and precision in the presentation of his contentions, we shall address the merits of the instant matter.

Melvin contends that the trial court committed error in refusing his motion for mistrial made subsequent to a testimonial reference by a Commonwealth witness to Melvin’s silence. Officer Ronald Bachman, of the Williamsport Police Department, testified upon questioning by the district attorney, in pertinent part:

Q. What did you do with the defendant after arriving at City Hall?
A. He was taken inside, he was read his rights, told us he didn’t want to talk and then Agent Wilson and myself fingerprinted him and took his picture and placed him in a holding cell.
Q. Did you have any further contact with the defendant that day?
A. I don’t believe so.

By Mr. Osokow: No further questions, Your Honor. At the close of direct examination by the assistant district attorney, Melvin’s counsel immediately requested a sidebar conference at which he informed the trial court that the impact of the statement by Officer Bachman was prejudicial, and that a curative instruction would be inadequate to remedy the error. Melvin’s counsel then moved for mistrial. The Honorable Clinton W. Smith denied the motion for mistrial and issued a cautionary instruction to the jury.

Melvin is correct in asserting that the reference to an accused’s post-arrest silence is a violation of his constitutional right against self-incrimination. Commonwealth v. Mays, 361 Pa.Super. 554, 523 A.2d 357 (1987); Commonwealth v. Gbur, 327 Pa.Super. 18, 474 A.2d 1151 (1984). “Prompt and adequate cautionary instructions can cure what might otherwise be reversible error.” Mays, 361 Pa.Super. at 558, citing Gbur, 327 Pa.Super. at 24. It is a matter of judicial discretion, subject to appellate court review, to determine whether curative instructions can remove the harm inflicted upon defendant. Gbur, 327 Pa.Super. 18, 474 A.2d 1151. In order to ascertain whether an instruction by the judge can cure the prejudice done to the defendant, we must apply the following test to the statement and determine: “1) the nature of the reference to the defendant’s silence; 2) how it was elicited; 3) whether the district attorney exploited it; and 4) the promptness and adequacy of the cautionary instruction.” Mays, 361 Pa.Super. at 558-559; Gbur, 327 Pa.Super. at 24; Commonwealth v. Anderjack, 271 Pa.Super. 334, 344, 413 A.2d 693, 698 (1979).

First, while testifying on behalf of the Commonwealth, Officer Bachman expressly referred to Melvin’s refusal to speak after he was given his Miranda rights. Clearly, this statement was a violation of Melvin’s constitutional right against self-incrimination and, as such, may have prejudiced him in the eyes of the jury.

Second, Bachman’s reference to' Melvin’s silence was made in response to a broad question propounded by the district attorney. The district attorney did not deliberately attempt to elicit the reference to Melvin’s silence. The trial court found that the statement was “inadvertent and gratuitous.” After a thorough review of the record, we find no reason to differ with this finding of the learned trial court.

Third, the district attorney did not exploit the testimony elicited from Bachman. The district attorney merely asked one additional question, unrelated to Melvin’s silence, and subsequently terminated his examination. Further, the district attorney did not refer to Melvin’s silence at any other time during the trial.

Fourth, the Honorable Clinton W. Smith gave a prompt and adequate cautionary instruction to the jury, removing the prejudice done to Melvin. The learned trial judge charged the jury as follows:

Ladies and gentlemen, under the law one accused of a crime has an absolute right to remain silent. It is highly improper for a police officer to comment on the fact that a defendant exercised his right to remain silent. The following question was asked of Officer Bachman and he gave the following answer. The question by Mr. Osokow, “What did you do with the defendant after arriving at City Hall?” The answer given by Officer Bachman, “He was taken inside, he was read his rights. Told us he didn’t want to talk, and then Agent Wilson and myself fingerprinted him and took his pictures and placed him in a holding cell.” Now, I instruct you that the defendant has an absolute constitutional right to remain silent after being placed in custody. You may not and you must not draw any inferences at all against the defendant because he exercised his right. It was proper that the officers advised the defendant of his Constitutional right to remain silent. The defendant had an absolute Constitutional right not to talk to the officers. You must completely disregard and strike from your memory any comment to the refusal of the defendant to talk to the police officers. As I told you before, he has an absolute Constitutional right not to talk to the police officers and again, you may not draw any inference from guilt from the fact he didn’t want to talk to the police officers and in fact, you may not draw any adverse inferences from the fact that he exercised this Constitutional right to remain silent. You may not penalize the defendant in any way for exercising this Constitutional right. So I am cautioning you in the strongest language that I can think of that you must disregard the answer given by Officer Bachman as it relates to the fact that the defendant didn’t want to talk after his constitutional rights were given to him.

Transcript of Proceedings of 11 December 1986, pages 127-129.

It is evident that the cautionary instruction of the learned trial judge was clear and direct. Our review of the record persuades us to conclude that the cautionary instruction effectively minimized the prejudice to Melvin so as to render Officer Bachman’s testimony harmless. In fact, the learned trial judge demonstrated “prudent foresight in instructing the jury as he did.” Gbur, 327 Pa.Super. at 27; Commonwealth v. Zellner, 268 Pa.Super. 59, 65, 407 A.2d 436, 439 (1979). Accordingly, Melvin has failed to establish that he suffered prejudice sufficient to warrant a new trial.

Melvin argues that the trial court erred in refusing to allow physical comparison evidence relevant to his identification. In his brief, Melvin has failed to set forth what physical comparison evidence the trial court refused to permit. This critical omission makes it impossible for this court to consider the merits of Melvin’s contention. Therefore, we find that Melvin has waived the issue for his failure to identify the alleged error and present supporting argument. See Commonwealth v. Balch, 328 Pa.Super. 71, 476 A.2d 458 (1984).

Next, Melvin contends that the trial court committed harmful error in refusing to permit Melvin to stand and speak, non-testimonially, not subject to cross-examination, for the purpose of voice identification. The trial court has broad discretion to permit an in-court demonstration. Commonwealth v. Kenon, 333 Pa.Super. 366, 482 A.2d 611 (1984). In making its determination, the trial court should evaluate the relevance of the proffered demonstration and should determine whether the potential negative impact outweighs the potential probative value. Id.

One witness to the criminal events testified that Melvin’s speech was, at the time of the incident, difficult to understand, and that he mumbled. Melvin sought to rebut this testimony by addressing the court without being sworn in, and not subject to cross-examination. The trial court found that Melvin, if given leave to speak, sought to testify, in effect, that he did not mumble in his regular course of speech. Also, the trial court stated, “The court is of the opinion that any such demonstration would have been testimonial in nature and would subject defendant to cross-examination.” Opinion in Support of Previously Issued Order, page 4. The trial court correctly concluded that the demonstration would have been testimonial as an assertion, by Melvin, that he did not mumble. Melvin had the opportunity to present witnesses who would testify to the quality of his speech, and, in fact, presented a witness who rebutted the Commonwealth witness’s testimony. Moreover, the negative impact of permitting Melvin to speak far outweighed the probative value. Melvin, if he chose to do so, could have adopted any inflection in his voice or speech pattern to confuse the identification issue, without being subject to confrontation by the Commonwealth. Therefore, we conclude that the trial court did not abuse its discretion in refusing to permit the demonstration.

Next, Melvin asserts that the trial court erred in refusing, as irrelevant, a stipulation of demonstrative evidence from the preliminary hearing as to the witness’s identification of the alleged weapon. A thorough review of the record shows that there was no stipulation between the Commonwealth and Melvin’s counsel with regard to evidence offered at the preliminary hearing. The Commonwealth presented a timely objection to the stipulation proposed by Melvin’s counsel. Further, the evidence which Melvin’s counsel sought to introduce was irrelevant. At the preliminary hearing, two Commonwealth witnesses indicated, by gesturing with their hands, the estimated length of the weapon used by Melvin. The weapon admitted into evidence at trial was shorter than the length estimated at the preliminary hearing. However, the estimates made at the preliminary hearing were irrelevant because the two Commonwealth witnesses once again testified, at trial, that the gun admitted into evidence was smaller than the gun used in the robbery.

We now turn to a consideration of Melvin’s claim that the verdict was against the weight of the evidence regarding Melvin’s physical appearance. Evidence is adequately weighty if it is not so tenuous that the verdicts based upon it would shock the conscience of the court. Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986). The weight to be given the evidence is for the trier of fact to determine. Commonwealth v. White, 342 Pa.Super. 1, 492 A.2d 32 (1985). In addition, this court is reluctant to entertain a challenge to the weight of the evidence when such action would require us to assess the trustworthiness of the trial testimony from a “cold record.” Commonwealth v. Wienckowski, 371 Pa.Super. 153, 537 A.2d 866 (1988); See, e.g., Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987).

The jury, as factfinder, was in the best position to evaluate the credibility and veracity of the witnesses. Melvin’s defense at trial was misidentification. Three witnesses identified Melvin from a photograph array shown to them at the police station. At trial, these witnesses again identified Melvin as the person who committed the criminal acts. Further, when Melvin was placed under arrest by Officer Bachman, Bachman informed Melvin of the charges against him. Melvin impetuously volunteered that he had been home on Tuesday evening and had alibis. Unfortunately for Melvin, Bachman had not yet informed Melvin of the date or time of the incident. We find that the verdict was not contrary to the weight of the evidence.

Next, Melvin contends that it was improper to apply the Mandatory Sentencing Act, 42 Pa.C.S.A. Section 9712, to the instant matter. Melvin argues that a starter pistol, introduced into evidence by the Commonwealth, is not a firearm as defined in 18 Pa.C.S.A. Section 2301. The statutory section cited as authority by Melvin is inapposite. A definition of “firearm” is contained in 42 Pa.C.S.A. Section 9712(e) which provides in pertinent part:

(e) Definition of firearm. — As used in this section “firearm” means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.

42 Pa.C.S.A. Section 9712(e).

This court has previously held that a starter pistol may readily be converted to expel a projectile. See, e.g. Commonwealth v. Cofoni, 349 Pa.Super. 407, 503 A.2d 431 (1986); Commonwealth v. Sterling, 344 Pa.Super. 269, 496 A.2d 789 (1985). Consequently, we agree with the trial court’s decision to apply the mandatory sentence imposed pursuant to 42 Pa.C.S.A. Section 9712.

Melvin’s seventh contention is that the trial court failed to merge the charges of robbery and terroristic threats for sentencing purposes. For separate statutory offenses to merge, a trial court “must determine not only that the crimes arose from the same criminal act, transaction, or episode, but also that the statutes defining the crimes charged were directed to substantially the same harm or evil.”

Commonwealth v. Wienckowski, 371 Pa.Super. 153, 537 A.2d 866 (1988); See Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985). “Thus, if a defendant commits several discreet criminal acts, he may be punished separately for them regardless of their close relationship in a single criminal episode as long as each act is a separate injury in itself.” Wienckowski, 371 Pa.Superior Ct. at 163, 537 A.2d at 871. Here, the terroristic threat at issue was made by Melvin, in an attempt to aid his escape, after the robbery was completed. Although the terroristic threat and the robbery occurred during the same episode, each act was a separate and distinct injury to the Commonwealth. We find no reason to reverse the finding of the lower court on this issue.

Melvin’s final challenge is to the allegedly excessive sentence imposed by the trial court. Melvin has failed to present “a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence required by Pa.R.A.P. Section 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).” Wienckowski, 371 Pa.Superior Ct. at 162, 537 A.2d at 870. In its brief, the Commonwealth notes that Melvin failed to set forth a separate section of his brief containing reasons why his appeal of the discretionary aspects of sentencing should be granted. See Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987). We deem that the absence of such separate section is a substantial defect and, therefore, we shall not address the merits of Melvin’s allegation.

ORDER AFFIRMED.

      . Rule 2119 of the Rules of Appellate Procedure provides in pertinent part:
      Rule 2119. Argument
      (a) General rule. The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part-in distinctive type or in type distinctively displayed-the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.

      . In response to the requested stipulation the assistant district attorney replied:
      "Your Honor, we would object to Mr. Steinbacher testifying to the fact that at the preliminary hearing the witnesses made some kind of motion with their hands and Mr. Steinbacher wrote down in his notes they indicated the weapon, and the one, I believe he indicated it was eighteen inches and the other twelve inches for the reason it does not impeach their testimony because the witnesses testified that in their opinion the gun that was shown to them in court was smaller than the gun that they saw."

      . Melvin was charged with three counts of terroristic threats. The terroristic threat which allegedly merged with the robbery charge occurred after Melvin completed the robbery. He ordered, at gunpoint, the persons remaining in the store to get into the back room or he would shoot them.

      . The elements of the crime of terroristic threats are as follows: a threat to commit crime of violence, and the communication of such threat with the intent to terrorize or with reckless disregard of the risk of causing terror.


author: POPOVICH, Judge:

text:
    548 A.2d 281
    Earl J. CROSBY, Appellant, v. COMMONWEALTH of Pennsylvania DEPARTMENT OF TRANSPORTATION and Richard Rickers and Dorothy Rickers, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1988.
    Filed Sept. 26, 1988.

      Stephen P. Lagoy, West Chester, for appellant.
    Alexis Barbieri, Norristown, for appellees.
    Before CAVANAUGH, ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Chester County denying post-verdict relief to the plaintiff /appellant, Earl J. Crosby. We affirm.

This case was commenced by the filing of a praecipe for the issuance of a summons in trespass by the plaintiff against the Commonwealth of Pennsylvania, Department of Transportation, and Richard and Dorothy Rickers. After service of the summons, a rule was issued upon the plaintiff to file a complaint. A complaint was duly filed alleging that on or about September 5, 1980, at approximately 7:40 p.m., the plaintiff was operating his vehicle on Greenhill Road in the Township of West Goshen, a public highway, owned, controlled and maintained by the Commonwealth of Pennsylvania.

At the time and place stated, it was averred by the plaintiff that an unidentified vehicle being driven in the opposite direction to his, entered and encroached upon his lane of travel, thereby causing the plaintiff to drive his vehicle to his right and off the paved road and onto the Rickers’ property. His vehicle came to rest after travelling approximately 100 feet and striking a tree and utility pole.

At trial, the allegations contained in the complaint were testified to by the plaintiff. As is relevant herein, additional evidence was produced by the Commonwealth which showed that the police arrived on the scene within three (3) minutes of the accident and detected, an “odor of alcohol” emanating from the plaintiff as he sat semi-conscious in his vehicle awaiting emergency treatment.

Once the plaintiff arrived at Chester County Hospital, within five (5) to ten (10) minutes thereafter, blood was drawn from the victim. A serum test was completed by 8:30 p.m., with the results reading 123.4 mg/dL. With the aid of the Commonwealth’s toxicologist/expert, the test results were interpreted to indicate the presence of .101% ethol alcohol in the plaintiff’s blood at the time of the accident. Further, the toxicologist opined that a .101% blood-alcohol level in an individual renders him/her unfit to operate a motor vehicle safely because of the impairment of one’s vision, judgment and perception/reaction.

With the plaintiff’s presentment of his case, he was unable to recall whether he had consumed any alcohol on the day in question. His mother, who testified to seeing him approximately thirty (30) minutes prior to the accident, did not notice whether her son was inebriated or smelled of alcohol.

Following the entry of a jury verdict, in which the plaintiff was found to be 70% contributorily negligent and the Commonwealth 30% negligent, post-trial motions were filed and denied by order dated May 27, 1987. The plaintiff’s effort to seek leave to amend, by petition, his post-trial motions was likewise denied by order dated May 29, 1987.

A notice of appeal was filed June 3, 1987, and was taken from the order entered in this matter on May 27, 1987.

Albeit the denial of post-trial motions is not a final order as that term is contemplated by statute (see 42 Pa.C.S. § 742; Pa.R.App.P. 903(a)), the fact that the plaintiff did reduce to judgment the jury verdict of July 3, 1986, by praecipe, saves the order at issue from being labelled interlocutory. In the future, however, we would advise that the proper, procedural course to pursue in perfecting an appeal from an adverse jury verdict is to reduce the verdict to judgment and take an appeal therefrom and not from an order denying post-trial motions. Appeal lies from the judgment entered and not the denial of post-trial motions; nor is the denial of a petition seeking leave to file supplemental post-trial motions a final, appealable order. Rule 903.

The first issue raised by the plaintiff charges that the trial court, as a matter of law, committed err in denying his motion in limine to exclude evidence of alcohol consumption and blood-alcohol level.

The law is well-settled in this jurisdiction with regard to the admissibility of blood-alcohol tests in civil litigation; to-wit:

Blood alcohol level alone may not be admitted for the purpose of proving intoxication. There must be other evidence showing the actor’s conduct which suggests intoxication. Only then, and if other safeguards are present, may a blood alcohol level be admitted.

Ackerman v. Delcomico, 336 Pa.Super. 569, 576, 486 A.2d 410, 414 (1984); Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980); Schwarzbach v. Dunn, 252 Pa.Super. 454, 381 A.2d 1295 (1977).

It is the plaintiff’s contention that the Commonwealth’s inability to produce evidence of his conduct prior to the collision, suggestive of his intoxication, precludes it from introducing evidence of the blood-test results and the expert’s interpretation thereof as affecting his (the plaintiff’s) ability to drive safely. In support thereof, the plaintiff cites Dove, Administratrix v. Gruber, 23 Lebanon County L.J. 118 (1986), wherein the court denied the defendant’s motion to reconsider the exclusion of the decedent’s blood-alcohol test on grounds that no additional evidence of intoxication at the time of the accident was presented, save for the test.

In particular, the Dove court noted that there was no testimony that an “odor of alcohol” was detected on the decedent, especially since a case of beer had been broken in the interior of the vehicle as a result of the accident. Also, because the .213% blood-alcohol test results came from blood pooled in the pericardial sac of Dove’s heart, the test result was falsely and significantly elevated between 0.05 and 0.09 percentage points. Thus, Dove’s blood-alcohol count (BAC) was of “doubtful accuracy” because the blood was drawn from the victim’s heart, and this, the court concluded, rendered the test results “susceptible to contamination thereby creating an erroneous BAC reading.” As a result, the jury was not permitted to hear the BAC reading or the defendant’s expert’s analysis of the test.

Instantly, unlike Dove, we had testimony that an “odor of alcohol” was smelled upon the plaintiff by the police officer who arrived on the scene. The fact that the plaintiff, his mother and Mrs. Rickers could not confirm the presence of an aroma of alcohol on the plaintiff was a credibility question to be resolved by the jury, rather than having this information totally excluded from the consideration of the trier-of-fact weighing on the causation factor.

We find that the .101% level of intoxication, especially when joined with the expert’s testimony that the same would impair one’s motor skills, was properly admitted by the trial court for the jury’s consideration in assessing what transpired on the evening in question. Especially is this so since we have evidence that the plaintiff smelled of alcohol at the time of the accident when his vehicle left the roadway and struck various objects before coming to rest. This conclusion is consistent with the trial court’s assessment of the facts warranting the admission of the blood-alcohol test results, along with other evidence of intoxication; to-wit;

In the instant case, ... [t]he evidence included: a blood alcohol test taken within an hour of Mr. Crosby’s accident which showed a result of .101%, expert testimony that a driver with a blood alcohol level of .101% is substantially impaired in his driving capabilities, the testimony of the officer who had arrived at the scene of the accident and detected the odor of alcohol on Mr. Crosby’s breath, and the evidence that the plaintiff, familiar with the road on which he was driving, drove off the road and one hundred feet in a direct line into a tree. Taken in its totality, this evidence revealed far more than a “mere hint of intoxication” and certainly justified the submission to the jury of the evidence of plaintiffs intoxication and blood alcohol test results.

(Trial Court Opinion at 4)

To remove from the jury the evidence of intoxication would be rewarding those who test positive for intoxication but the fortuity of the situation (no other evidence to corroborate the same) precludes additional facts to buttress the occurrence of an accident attributable, at least in part, to the intoxicant. We are not of a mind to do so here in light of the presence of an odor of alcohol and the blood-alcohol level indicating a presumption of intoxication (see 75 Pa.C.S. § 3731(a)(4)), interpreted by an expert as to its deleterious effects and the occurrence of the accident itself, which the appellant could refute with his testimony of his clarity of mind and adroit behavior in reacting to an allegedly “phantom” on-coming vehicle necessitating his swerving from the paved portion of the road into someone’s yard. See Beneshunas v. Independence Life and Accident Insurance Co., 354 Pa.Super. 391, 512 A.2d 6 (1986).

It would be for the jury to assess the plaintiff’s version against the physical facts evidencing intoxication and the accompanying accident. Because the trial court’s ruling is consistent with our thinking on the matter, we affirm it this day.

As for the other issues raised by the plaintiff, it is to be noted that we have scrutinized them and find them to be meritless. Accordingly, we have no reservations in upholding the actions of the court below.

Order affirmed.

ROWLEY, J., notes his dissent.

      . Prior to trial, the Rickers executed a joint tortfeasors release and were dropped as parties to the suit.

      . May 19, 1988, was the date the praecipe was filed with the prothonotary of Chester County.

      . The other issues raised by the plaintiff appear at page 3 of his brief under the caption "Statement of Questions Involved” and read:
      B. Did the Court of Common Pleas err as a matter of law in prohibiting Plaintiff/Appellant from introducing evidence of prior collisions at the site of Plaintiff's collision?
      C. Did the Court of Common Pleas err as a matter of law in permitting Defendant’s/Appellee’s engineering expert to testify as an expert concerning the effects of alcohol consumption on the Plaintiff’s/Appellant’s ability to operate his automobile?
      D. Did the Court of Common Pleas err as a matter of law in finding that its rulings on evidence were not harmful nor extremely prejudicial to Plaintiff s/Appellant’s case?
      E. Did the Court of Common Pleas err as a matter of law in denying Plaintiff’s/Appellanfs Petition for Leave to Amend Post-Trial Motions?