author: BECK, Judge.

text:
    611 A.2d 761
    COMMONWEALTH of Pennsylvania v. Anthony PENDOLA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1992.
    Filed July 28, 1992.

      Kalvin Kahn, Philadelphia, for appellant.

      Kathy Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, BECK and MONTGOMERY, JJ.
   BECK, Judge.

Appellant Anthony Péndola was convicted of one count of aggravated assault and two counts of simple assault arising out of an altercation with police in which a police officer and bystander were injured. Appellant appeals from his judgment of sentence, claiming ineffective assistance of counsel. We disagree, and affirm the judgment of sentence.

We adopt the trial court’s summary of the facts, as follows:

The charges stem from an incident that occurred in the early morning of August 5, 1990 at approximately 2:00 o’clock inside the emergency room of the Presbyterian Hospital, located at 37th and Market Streets. The defendant and one Sweeney were observed in the Presbyterian Hospital parking lot looking into cars; defendant had a brick in his hands. When they refused to leave, the security personnel managed to handcuff Sweeney. They were taking Mr. Sweeney to the emergency room to get the police when defendant charged them. In the emergency room in the ensuing struggle between defendant and the hospital security guards, the defendant threw a metal/plastic chair at the security guard, striking Ms. Jennifer Goonrey on the head causing severe cuts over and under the left eye which required ten stitches to mend.

Trial Ct. Opinion, pp. 1-2. Defendant Péndola was found guilty of simple assault and aggravated assault in connection with the attack on Ms. Goonrey. For purposes of sentencing, the trial court merged the simple assault with the aggravated assault, and sentenced Péndola to seven to fifteen years on the aggravated assault charge.

Péndola appeals from the judgment of sentence, raising the following single issue:

Where defendant was sentenced to seven to fifteen years for aggravated assault, and the Crimes Code provided five to ten years for attempt murder, was defense counsel ineffective in not moving for reconsideration of sentence on the grounds of disproportionate sentences?

Appellant’s Brief, p. 3. We find that Pendola’s counsel was not ineffective for failing to raise this issue. We therefore affirm the judgment of sentence.

The standard by which this court evaluates claims of ineffective assistance of counsel is well-settled:

The effectiveness of trial counsel is presumed and appellant bears the burden of rebutting that presumption. Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988); Commonwealth v. Jones, 298 Pa.Super. 199, 444 A.2d 729 (1982). In order to overcome the presumption appellant must show that the issue underlying the claim of ineffectiveness had arguable merit; that the course of conduct chosen by counsel had no reasonable basis in effectuating the client’s interest; and that counsel’s action or inaction operated to prejudice him.

Commonwealth v. Wax, 391 Pa.Super. 314, 571 A.2d 386 (1990). Appellant cannot prevail on a claim of ineffectiveness of counsel unless this court concludes that there is a reasonable probability that, but for counsel’s alleged errors, the result of the proceeding would have been different. Commonwealth v. Pierce, 515 Pa. 153, 161-62, 527 A.2d 973, 976-77 (1987).

Appellant claims that his counsel was ineffective for failing to raise the argument that his sentence of seven to fifteen years for aggravated assault violated the prohibition against disproportionate sentencing found in both the United States Constitution, Eighth Amendment (“excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”) and Article I, Section 13 of the Pennsylvania Constitution (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted.”). The sentence is out of proportion to the crime, appellant argues, because aggravated assault, with a seven to fifteen year sentence, carries a heavier penalty than attempted murder (five to ten years), and yet is a lesser-included offense of attempted murder. Appellant argues in the alternative, that even if aggravated assault is not technically a lesser-included offense of attempted murder, it is a less serious crime, and the higher penalty is therefore unconstitutionally disproportionate.

As to appellant’s first argument, we note that this court has recently held that aggravated assault is not a lesser-included offense of attempted murder.. Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992). Moreover, a lesser-included offense analysis is appropriate only where appellant was, in fact, charged and convicted with the second crime into which he claims the first should have been merged. See Commonwealth v. Spells, — Pa.Super. -, 612 A.2d 458, 460-61 (1992). Appellant here was convicted of only aggravated assault; he was not convicted of attempted murder as well. His lesser-included offense argument is therefore meritless.

As to appellant’s argument that his sentence is disproportionate because aggravated assault is a “less serious” crime than attempted murder, we find that the difference in penalties between attempted murder and the arguably less serious crime of aggravated assault does not render appellant’s sentence vulnerable to attack. We therefore find that his counsel was not ineffective for failing to challenge it.

Appellant cites in support of his argument the United States Supreme Court’s decision in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), in which the Court identified the three following factors as guidelines in determining whether a sentence was unconstitutionally disportionate: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Solem v. Helm, supra, 463 U.S. at 292, 103 S.Ct. at 3010. Appellant’s argument, comparing the sentences in Pennsylvania for aggravated assault and attempted murder, leans heavily on the second factor of the test.

Appellant’s reliance on Solem is misplaced. In a case decided in June of 1991, Harmelin v. Michigan, — U.S.-, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), the United States Supreme Court clarified its holding in Solem and set forth the governing legal standard to be used in evaluating a claim that a sentence is unconstitutionally disproportionate. In a joint opinion of the court, Justice Kennedy reviewed previous Supreme Court decisions and the various principles supporting a broad view of what differences in sentencing are lawful, and came to the following conclusion:

All of these principles — the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors — inform the final one: the Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime. Solem, supra, at 288, 303[, 103 S.Ct. at 3008, 3016.]

Harmelin, — U.S. at-, 111 S.Ct. at 2705 (emphasis added). Justice Kennedy went on to say that only where an inference of gross disproportionality existed should a court go on to evaluate how the sentence imposed compares with the sentence attached to other crimes in the same jurisdiction, or how other jurisdictions treated the same crimes:

Solera is best understood as holding that comparative analysis within and between jurisdictions is not always relevant to proportionality review. The Court stated that ‘it may be helpful to compare sentences imposed on other criminals in the same jurisdiction/ and that ‘courts find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions.’ Id., at 291-92[, 103 S.Ct. at 3010-11] ... It did not mandate such inquiries.
A better reading of our cases leads to the conclusion that intra- and inter-jurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disporportionality.

Harmelin, — U.S.-, 111 S.Ct. at 2707 (emphasis added). Defendant Harmelin was sentenced on cocaine possession to life without parole, which the court described as “the second most severe penalty permitted by law.” — U.S. -, 111 S.Ct. at 2683. However, because of the serious nature of his crime (possession of more than 650 grams of cocaine), Justice Kennedy found no gross disproportionality, and therefore no need to engage in the three-part Solem analysis.

We find that appellant’s behavior in picking up a chair and striking an innocent bystander, in the face, with such force that her injuries required ten stitches, is a crime sufficiently serious that imposing a sentence of seven to fifteen years for the commission of such an act does not lead to an inference of gross disproportionality. There would have been no merit to such an argument had defendant’s counsel raised it in post-sentence motions. Counsel was therefore not ineffective for failing to do so. Judgment of sentence affirmed.

      . Defendant was also sentenced to one to two years on his conviction of simple assault of the police officer, which term runs consecutive to his sentence of seven to fifteen years for the aggravated assault of Ms. Goonrey. Defendant has raised no allegation of error with regard to this sentence.

      . We apply federal constitutional jurisprudence to resolve appellant’s claim under the Pennsylvania Constitution as well; Article I, Section 13 of the Pennsylvania Constitution affords no broader protection against excessive sentences than that provided by the Eighth Amendment to the U.S. Constitution, see Commonwealth v. Spells, — Pa.Super. -, 612 A.2d 458, 461 (1992).

      . We note that a recent en banc decision of this court, Commonwealth v. Spells, supra, confirms the Harmelin approach we adopt here. In Spells, appellant was sentenced by the trial court to five to ten years imprisonment on a charge of aggravated assault. The trial court accepted Spells' argument that the upper limit of her sentence could not constitutionally exceed the upper limit of the sentence range for attempted murder, since aggravated assault was a lesser-included offense of attempted murder; this part of the sentence was not challenged on appeal and was therefore not ruled on by the Superior Court. Slip op., pp. 3-5. However, the trial court rejected Spells’ analagous argument that the five-year lower limit of her sentence was unconstitutional because it exceeded the lower limit of the sentence range for attempted murder, probation. The court found itself bound by the statutorily-mandated minimum five-year sentence for commission of a crime with a firearm under 42 Pa.C.S.A. sec. 9712. Spells appealed the imposition of this lower limit of her sentence, the five-year mandatory minimum, claiming it was unconstitutionally disproportionate. This court declined to engage in a lesser-included offense analysis because Spells had not in fact been convicted of the greater crime of attempted murder. The court did, however, consider her argument that the five-year minimum of her sentence was constitutionally disproportionate because it was harsher than the minimum sentence for the “less serious” crime of attempted murder. The court applied the Harmelin analysis set forth above, and rejected this claim.
      Although the holding in Spells, rejecting a challenge to the lower limits of a sentence on disproportionality grounds, clearly supports the conclusion we reach in this case with regard to both upper and lower limits, we note that we do not rely on Spells in evaluating the effectiveness of appellant Pendola’s trial counsel, as Spells had not yet been decided at the time of Pendola's sentencing in August of 1991. See Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. White, 515 Pa. 348, 528 A.2d 596 (1987). However, Harmelin was issued in June of 1991 and is fully applicable to Pendola’s appeal here.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    611 A.2d 765
    COMMONWEALTH of Pennsylvania v. David A. LAWRENCE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 3, 1992.
    Filed Aug. 6, 1992.

      Matthew Hanna, Media, for appellant.
    Dennis C. McAndrews, Asst. Dist. Atty., Media, for Com., appellee.
    Before CAVANAUGH, DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

This is a direct appeal from a sentence requiring Appellant to serve a term of confinement from thirty days to twelve months incarceration as a second offender under the mandatory sentencing provisions of Pennsylvania’s Driving Under the Influence statute. 75 Pa.C.S.A. § 3731. The sole issue on appeal is whether the decisions of Commonwealth v. Kimmel, 523 Pa. 107, 565 A.2d 426 (1989) and Commonwealth v. Kearns, 365 Pa.Super. 13, 528 A.2d 992 (1987), which rule that the seven year period used to calculate recidivism under the provision of 75 Pa.C.S.A. § 3731 is to be measured from the date of the prior conviction to the date of the second offense, remain valid in light of the most recent amendments to § 3731(e)(1)(h). We conclude that the language changes do not alter the clear intent of the statute as identified in Kimmel and Kearns, supra, and accordingly, we affirm Appellant’s Judgment of Sentence.

Appellant was arrested on May 10, 1991 on a charge of driving under the influence. After pleading guilty he was sentenced by the court as a second offender based upon his previous admission into an ARD program less than 7 years earlier, in August of 1984. Appellant filed a motion for reconsideration of sentence for the court to determine whether under the provisions of § 3731 the seven year period should be calculated from the date of his prior arrest, April 13, 1984 to the date of his present arrest, May 10, 1991, rather than measured by the date of the prior conviction and the date of the current offense, which the trial court accepted with reference to the decisions on Kimmel and Kearns. The trial court rejected Appellant's claim that language changes in the penalty section of § 3731 require a different interpretation than that offered in Kimmel and Kearns.

At issue in Kimmel and Kearns was an interpretation of the following provision:

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

75 Pa.C.S.A.(e)(l)(ii) (1982)

Subsection (e)(l)(ii) was amended in 1990 to more specifically clarify the events which would be considered a previous conviction. It now provides:

(ii) Not less than 30 days if the person has previously accepted Accelerated Rehabilitative Disposition or any other form of preliminary disposition, been convicted of, adjudicated delinquent or granted a consent decree under the Juvenile Act (42 Pa.C.S. § 6301 et seq.) based on an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

75 Pa.C.S.A. § 3731(e)(l)(ii) (1990) (emphasis added.)

Appellant focuses on the specific language which prior to the amendment directed courts to consider persons who had “previously been convicted of an offense” and now refers to persons who have been previously subject to a number of criminal dispositions “based on an offense under this section.” He asserts a “fair reading of this [amended] section would indicate that the offense to offense analysis should be applied.” Appellant’s Brief at 4. In the alternative he suggests that the paragraph is “ambiguous” and given the fact that a court is required to strictly construe penal statutes in favor of defendants, he should have the benefit of an interpretation which would calculate the seven year period from, offense to offense, conferring on him first offender status.

The Kearns court considered a similar argument in its interpretation of the earlier provision and rejected the appellant’s suggestion that the seven year period should be measured from the date of the first offense to the date of the second offense, or from the date of the first conviction to the date of the second conviction. In interpreting the recidivist provision the court examined it in relation to other sections of the same statute. The court looked to subsection (d), which has not been amended, and which provides: (D) Certain dispositions prohibited. — the attorney for the Commonwealth shall not submit a charge brought under this section for Accelerated Rehabilitative Disposition if:

(1) the defendant has been found guilty of or accepted Accelerated Rehabilitative Disposition of a charge brought under this section within seven years of the date of the current offense.

The court also made reference to 42 Pa.C.S.A. § 9714 which, regarding enhanced penalties for those who have committed crimes of violence, states that “the previous conviction occurred within seven years of the date of the commission of the instant offense.” The Kearns court concluded: “We can glean from these recidivist statutes a common thread which runs through the enhancement penalty sections; that is, a seven year period applies to prior convictions which are measured to the date of the current offense.” Commonwealth v. Kearns, supra. 365 Pa.Super. at 20, 528 A.2d at 993.

Commonwealth v. Kimmel, supra, affirmed the interpretation of Section 3781(e)(l)(ii) made by the Superior Court in Kearns. The Pennsylvania Supreme Court in Kimmel found the statutory provision to be clear and free from ambiguity. The court noted that “the legislature deliberately used the words ‘violating’ and ‘conviction’ to anchor both ends of the computation.” In closing the court remarked: “We read Section 3731(e)(l)(ii) as meaning exactly what is says: a present violation and a previous conviction constitute the look-back period. The plain meaning of the statute affords no other interpretation.” Commonwealth v. Kimmel, 523 Pa. at 111, 565 A.2d at 428.

Despite the modification of language in 3731(e)(l)(ii) we too find the present statute to be clear and subject to a singular interpretation. It requires the court to compute the period of time between a defendant’s present violation and any previous occasion when this same individual was accepted into ARD or another form of preliminary disposition, convicted, adjudicated or granted a consent decree based on an offense under Section 3731, (Driving under the influence of alcohol or controlled substance.) The amended language does not change the manner in which previous criminal adjudications are to be calculated for penalty purposes. The new wording merely more clearly identifies what will constitute an event which is to be considered a conviction and thereby be eligible for consideration in the seven year computation period. Each of the stated events, however, must continue to concern, or be based upon, an offense defined in § 8731.

Our reading of the present statute is in keeping with the reasoning of the Kearns court which paralleled other statutory provisions. Of particular importance is the language of § 3731(d) which refers to defendants who have been found guilty or accepted ARD on a charge under § 3731 within seven years of the current offense. The provisions of the revised § 3731(e) continue to remain consistent with subsection (d). Appellant’s position suggests an interpretation which is both contrary to the clear wording of paragraph (ii) and the remaining provisions of the drunk driving statute.

Because we conclude that the trial court wisely rejected Appellant’s claim and measured the seven year period of recidivism from the date of his prior acceptance into ARD, August 14,1984, to the date of the current offense, May 10, 1991, we affirm its decision to sentence him as a second offender.

Judgment of Sentence affirmed.


author: MONTGOMERY, Judge.

text:
    611 A.2d 767
    Stuart S. GREENFEIG and Beverly R. Greenfeig, Appellants, v. SEVEN SPRINGS FARM, INC., Appellee.
    Superior Court of Pennsylvania.
    Submitted May 4, 1992.
    Filed Aug. 7, 1992.

      James D. Belliveau, Pittsburgh, for appellants.
    Gerald J. Cipriani, Pittsburgh, for appellee.

      Before WIEAND, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge.

This personal injury action arose out of alleged injuries suffered by plaintiff-appellant Stuart S. Greenfeig, on August 22, 1986, while he was purportedly a business invitee on the resort premises of defendant-appellee Seven Springs Farm, Inc., in Somerset County, Pennsylvania. This appeal follows an order by the trial court transferring this action from the Court of Common Pleas of Allegheny County to the Court of Common Pleas of Somerset County. We find the trial court order to be an abuse of discretion and reverse.

The record indicates that on December 22, 1987, the plaintiffs, Maryland residents, acting through Allegheny County counsel, instituted a complaint in the Court of Common Pleas of Allegheny County against the defendant. After service was accomplished, the defendant, also acting through Allegheny County counsel, filed a petition for removal, which resulted in the removal of the litigation to the United States District Court for the Western District of Pennsylvania, on or about January 26,1988. Discovery was conducted by the parties, and the case was scheduled for trial in June 1989. On June 29, 1989, a jury was selected and the parties were fully prepared to go to trial. However, on that date, the United States District Judge assigned to the case remanded it to the Court of Common Pleas of Allegheny County.

Following remand of the matter to the Allegheny County Court, both the plaintiffs and the defendant conducted further discovery. In May 1990, the litigation was placed at issue, pursuant to the Local Rules of the Allegheny County Court. Appropriate notice was published, in July 1991, that the case would appear on the November 1991 trial list, with a trial scheduled for November 13, 1991. The matter was called for trial on November 13, 1991 and counsel for the parties selected a jury on that date. The matter was then referred to a judge for trial. All parties were ready for trial, and all witnesses were present.

Immediately prior to the commencement of trial, counsel met with the trial judge. Although the colloquy which ensued was not transcribed, a reading of the trial court’s opinion, and the briefs submitted to our court by the parties, establish that the trial judge raised the question of why the case was not being tried in Somerset County. Although the defendant had not previously voiced any request for a change of venue or otherwise sought to have the case transferred to Somerset County, defense counsel responded to the effect that his client would have preferred to have the case tried in Somerset County. Over the objections of plaintiffs’ counsel, and despite the fact that all parties, counsel, and witnesses were prepared to commence the trial of the case, the Allegheny County judge immediately entered the order transferring the case to the Court of Common Pleas of Somerset County.

In its opinion in support of this action, the trial court suggests that it ordered the change of venue on forum non conveniens grounds. Although the trial court acknowledged that venue in Allegheny County was entirely proper and that a plaintiff’s choice of forum is entitled to great deference, the court explained that it treated the defense comment about a previously unmentioned preference for a Somerset County venue as a motion, and had ordered the trial transferred to that county because of considerations of public interest. The trial judge went on to explain his concerns about the limited number of commissioned judges in Allegheny County, and the Commonwealth’s failure to properly fund all of the operations of the unified judicial system. The judge also pointed out that there had been a then recent curtailment of funding for senior judges, who significantly assisted in handling Allegheny County’s overwhelming load of litigation. The trial judge’s opinion made it clear that his main concern in transferring the case was the burden of litigation on the limited resources available to the Allegheny County court system.

While this court is sympathetic to the significant concerns which formed the basis for the trial court’s order changing venue in this case, such action was not justified or appropriate under applicable law. Rule 1006 of the Pennsylvania Rules of Civil Procedure provides, in subsection (d)(1): “For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could have originally been brought.” As noted above, the defendant in this case never filed any type of petition, preliminary objections, or other formal request for a transfer of venue. Instead, the trial court raised this matter sua sponte, at the outset of the trial, and seized upon defense counsel’s comment about his client’s previously unmentioned preference for a Somerset County trial, to order a change of venue. Under applicable law, in the absence of a petition, which should be filed on a timely basis, a trial court may not transfer a case to another forum, where for reasons perceived by the transferring court, the case could be more conveniently tried and decided. Garzone v. Kelly, 406 Pa.Super. 176, 593 A.2d 1292 (1991); Penox Technologies, Inc. v. Foster Medical Corporation, 376 Pa.Super. 450, 546 A.2d 114 (1988). In addition to the lack of a timely petition by defendant seeking a change of venue in this case, there was a complete absence of evidence to substantiate that it would be more convenient for either the parties or the witnesses to litigate the action in Somerset County. In the absence of such evidence, it was a further abuse of discretion for the trial court to disturb the plaintiffs’ choice of a proper forum. See Triffin v. Turner, 348 Pa.Super. 6, 501 A.2d 271 (1985), and cases cited therein on that point.

On appeal, the defendant points out that the doctrine of forum non conveniens provided an independent basis for the trial judge to transfer the case to a different county. It is clear that when a court, acting pursuant to that doctrine, finds that in the interests of substantial justice a matter should be heard in another forum, it may stay or dismiss the matter in whole or in part on any conditions that may be just. See Rini v. New York Central Railroad Company, 429 Pa. 235, 240 A.2d 372 (1968), and 42 Pa.C.S.A. § 5322(e). That rule appears to have no application in the instant case, in which the action was neither dismissed nor stayed, in whole or in part. It was transferred, and the change of venue order was obviously covered by Pa.R.Civ.P. 1006. Moreover, it is apparent that a change in venue had to result in significant inconvenience and expense to the parties in this matter. The parties and all of their witnesses and counsel were fully prepared to proceed with trial in Allegheny County when the trial court raised this issue sua sponte. Obviously, a significant delay in the proceedings, the rescheduling of trial, and the need for everyone involved to travel to another county for trial on a later date, were both inconvenient and burdensome. Additional expense could not be avoided in such a procedure. There was no evidence suggesting any convenience to anyone but the court from the transfer. Even under forum non conveniens standards, therefore, we would hold that the trial court abused its discretion in this situation. A trial judge, acting under that doctrine, should only dismiss the action if the plaintiff has selected a clearly inappropriate forum. Rini v. New York Central Railroad Company, Id. Although we certainly recognize the tremendous burdens placed upon our courts by inadequate and unreasonable funding limitations, such circumstances do not provide the basis for a forum non conveniens transfer of a case from one county to another, when venue is properly laid in the first county. See Horn v. Erie Insurance Exchange, supra, 373 Pa.Super. at 189,190, 540 A.2d at 586, where we stated, “A trial court may not utilize a transfer of venue merely to control its docket, to preserve judicial resources, or to avoid deciding cases which are properly before it.” As in Horn, it is evident in this case that neither the parties nor the trial court have demonstrated that it would have been more convenient for the litigants or their witnesses to try this action in Somerset County, rather than in Allegheny County or that the latter was a clearly inappropriate forum. Thus, under prevailing precedent, the trial court’s change of venue order was improper.

The order of the trial court is reversed and the case is remanded for further proceedings in the Allegheny County Court of Common Pleas. Jurisdiction is not retained.

      . On appeal from such an order, we examine whether the trial judge abused his discretion. Hamay v. County of Washington, 291 Pa.Super. 137, 141, 435 A.2d 606, 608 (1981).

      . Reasonable doubt about this position arises when one considers that the only previous effort by the defense to change the plaintiffs’ selection of venue was a petition to remove the matter to the United States District Court for the Western District of Pennsylvania, which would have still resulted in a trial in Pittsburgh. This evidences prior defense consideration of the best forum for the case, and a conclusion that a Pittsburgh trial, in Federal Court, would have been to the benefit of the defense, and not a burden.

      . It is well established that as long as venue is properly established, the plaintiff is entitled to select his own forum, and his choice may not be lightly set aside. Horn v. Erie Insurance Exchange, 373 Pa.Super. 186, 540 A.2d 584 (1988); Fox v. Pennsylvania Power & Light Company, 315 Pa.Super. 79, 82, 461 A.2d 805, 806 (1983).


author: CAVANAUGH, Judge: WIEAND, Judge, concurring:

text:
    611 A.2d 1199
    COMMONWEALTH of Pennsylvania v. Terrance L. KNIGHT, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 16, 1992.
    Filed June 15, 1992.
    Reargument Denied Aug. 25, 1992.

      James R. Wilson, Asst. Public Defender, Pittsburgh, for appellant.
    Thomas Farrell, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   CAVANAUGH, Judge:

Appellant raises the following two issues on appeal: (1) whether the lower court erred in failing to define the word “recklessly” when it instructed the jury on the duress defense; and (2) whether trial counsel was ineffective for not objecting to the lower court’s failure to define the word “recklessly” when it instructed the jury as to the duress defense. We agree with both arguments in the respect that we believe that the word “recklessly” should have been defined for the jury when instructed on the duress defense. Notwithstanding, we cannot rule in appellant’s favor. The appellant has waived the first issue because trial counsel failed to object to the lower court’s jury instruction. The appellant’s second issue fails because the appellant has not been prejudiced by the inaccurate instruction. We affirm.

From our review of the record, a concise summary of the Commonwealth’s case is as follows. The appellant, Terrence L. Knight, was charged with robbery for an incident which occurred on April 25, 1989. On that date, the appellant entered the Brandywine Bar, located at 737 Bradock Avenue in Allegheny County. He was wearing a red jacket over a blue and white shirt and a bandanna, and his right hand was wrapped in a towel. He initially asked the owner of the bar, Edward Gurne, for money. When Mr. Gurne refused, the appellant walked over to a customer and held the towel up to a customer’s, Mr. Russell Merkel’s, back. Mr. Gurne and Mr. Merkel testified that the appellant claimed to have in it a .22 caliber pistol and that he would shoot Mr. Merkel if Mr. Gurne did not give him money. Mr. Merkel told the appellant to shoot because he was an old man, and Mr. Gurne pulled a .357 revolver from behind the bar and pointed it at the appellant. The appellant said something to the effect that there were men outside, threw down a glass, and ran out the door. He was later found at 910 Talbot lying on his stomach, against the side of a house, covering his face with his arms. Despite the fact that it was a chilly night, the appellant was not wearing anything on his upper body. The police took the appellant back to the Brandywine Bar, where he was identified by Mr. Merkel. Mr. Gurne was not sure because the appellant was not wearing the shirt and jacket, although he would later make an in-court identification. The appellant’s discarded jacket and shirt were found in the locality the next day by the police.

At trial, although his testimony was confused and contradictory, the appellant admitted that he was at the Brandy-wine Bar that night and he went there with the intention of robbing it. However, the appellant claimed that the defense of duress applied in that he was forced to commit the robbery by two drug dealers to whom he owed $60 for a purchase of drugs made earlier that day. According to the appellant, the drug dealers, armed with baseball bats and a knife, found him at his girlfriend’s residence and forced him to go to the Brandywine Bar, and upon threat of death, to rob it. They waited outside the bar to ensure he would follow their command. Once the appellant got into the bar, however, he claimed he had no intention of robbing it and so told Mr. Gume. After attempting to solicit money, he testified he asked that a glass be thrown at him, explaining that he wanted it to look like a robbery for the people outside who were trying to force him to rob the bar. When no one made any motion to throw a glass at him, he grabbed a glass on the bar, threw it down on the floor, and fled. He was captured in due course. He was found guilty of robbery and sentenced following a jury trial to 5 to 10 years imprisonment.

The appellant raises the following two issues on appeal: (1) whether the lower court erred in failing to define the word “recklessly” when it instructed the jury on the duress defense and (2) whether trial counsel was ineffective for not objecting to the lower court’s failure to define the word “recklessly” when it instructed the jury as to the duress defense. However, the Commonwealth argues, and we agree, that the appellant has waived the first issue by failing to object to the jury instruction at trial. The law is settled that a failure to object to a jury instruction normally waives the issue on appeal. Commonwealth v. Hodge, 270 Pa.Super. 232, 240 n. 8, 411 A.2d 503, 507 n. 8 (1979). However, notwithstanding, we have held that this Court may review an alleged error in a jury instruction which was not objected to at trial where it is presented in terms of ineffectiveness of counsel. Commonwealth v. McKnight, 307 Pa.Super. 213, 216, 453 A.2d 1, 2-3 (1982). We thus can and will address the substance of the second issue. Apparently anticipating this ruling, the appellant has couched the same underlying argument also in terms of ineffectiveness of counsel.

The Supreme Court has established a well-recognized test for analyzing ineffectiveness of counsel claims:

We have taken great pains to set forth the criteria that must be established when one attempts to assert the ineffectiveness of counsel. The threshold issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of the ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). In making assertions of ineffectiveness, we also require that an offer of proof be made alleging sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This is so because we frown upon considering claims of ineffectiveness of counsel in a vacuum. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989); accord Commonwealth v. Jackson, 390 Pa.Super. 639, 644-5, 569 A.2d 964, 967 (1990), alloc. den. 527 Pa. 623, 592 A.2d 43 (1992). Before proceeding into the appellant’s analysis, we feel our analysis would be strengthened by setting forth the applicable statutory provision at length. The Duress defense, 18 Pa.C.S.A. § 309, states as follows: § 309. Duress

(a) General rule. — It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
(b) Exception. — The defense provided by subsection (a) of this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability to the offense charged, (emphasis added).

The Appellant argues that “recklessly” as used in subsection (b) above is not understandable by a layperson without judicial guidance. Appellant argues that there are several possible meanings of the word “recklessly.” One possible meaning for the term is “carelessly” or “negligently.” See Black’s Law Dictionary 1142 (rev. 5th ed. 1979). Another possible meaning is “rashly” or “irresponsibly.” See Webster’s New World Dictionary of the American Language (2nd College ed. 1979). A third possible definition is “heedlessly, wantonly or willfully.” See Black’s Law Dictionary, supra, at 1142. Finally, appellant asserts that “recklessly” could be defined in light of a definition of “recklessly” appearing in 18 Pa.C.S.A. § 302(b)(3). Appellant asserts that given the numerous potential meanings of “recklessly,” it was incumbent on the trial court to instruct the jury as to the word’s meaning. Moreover, he claims that the definition that makes the best sense of the statute is the one appearing at § 302(b)(3), in light of our previous requirement that a trial court must define “recklessly” for a jury where a defendant is charged with the offense of simple assault. See Commonwealth v. Robinson, 284 Pa.Super. 152, 425 A.2d 748 (1980) (trial court must define elements of an offense since legal terms are not necessarily understood by laymen without judicial guidance).

“[Legislative intent is considered the polestar of statutory construction.” Mount Laurel Racing Association v. Zoning Hearing Board, Municipality of Monroeville, 73 Pa. Commonwealth Ct. 531, 537, 458 A.2d 1043, 1046 (1983); see also 1 Pa.C.S.A. § 1921. Thus, in order to properly ascertain the meaning of a statute, we are required to consider the intent of the Legislature. Commonwealth v. Stewart, 375 Pa.Super. 585, 592, 544 A.2d 1384, 1389 (1988), alloc. den. 520 Pa. 604, 553 A.2d 967 (1988). “Moreover, we are permitted to examine the practical consequences of a particular interpretation.” Lehigh Valley Coop Farmers v. Commonwealth, Bureau of Labor and Industry, 498 Pa. 521, 526, 447 A.2d 948, 950 (1982) (“[I]n ascertaining legislative intent, the practical consequences of a particular interpretation may be considered.”) (citations omitted). Pursuant to 1 Pa.C.S.A. § 1922, we are to presume that the General Assembly did not “intend a result that is absurd, impossible of execution or unreasonable.” Where the words of a statute are not explicit, the intention of the Legislature may be derived by such factors as, inter alia, the occasion and necessity for the statute, the circumstances under which it was enacted, the object to be obtained, the consequences of a particular interpretation, and the contemporaneous legislative history. 1 Pa.C.S.A. § 1921(c).

We find that our reasoning in Robinson, supra, leads to the conclusion that the definition of “recklessly” should be defined for a jury and also that requiring the definition of this word is efficacious when considering the language and purpose behind the exception to the duress defense.

In Commonwealth v. Robinson, 284 Pa.Super. 152, 425 A.2d 748 (1980), the appellant was charged with simple assault, robbery, arid conspiracy arising out of allegations that he participated in a mugging. The trial court’s jury instruction regarding the elements of assault was as follows:

The first thing you must consider when you are considering assault is whether Jerry Tannenbaum, that is the victim, suffered bodily injury. Or did someone try to inflict bodily injury on him. Bodily injury is the kind that causes one to suffer substantial pain or may [impair] your physical condition.

Id., 284 Pa.Superior Ct. at 156, 425 A.2d at 750. We declared that this instruction was insufficient to permit the jurors to convict the appellant of simple assault. Id. We noted that the statute setting forth the offense of simple assault, 18 Pa.C.S.A. § 2701, states:

(a) Offense defined. — A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a deadly weapon; or
(3) attempts by physical menace to put another in fear of imminent serious bodily injury.
(b) Grading. — Simple assault is a misdemeanor of the second degree unless committed in a fight or scuffle entered into by mutual consent, in which case it is a misdemeanor of the third degree.

Id., 284 Pa.Superior Ct. at 156-7, 425 A.2d at 750.

We found that the above instruction did not convey to the jurors the meaning of essential words appearing in the statute. Id., 284 Pa.Superior Ct. at 156, 425 A.2d at 750. For instance, we believed that the jurors could not convict under § 2701(a)(1) because the court did not define “attempt” or “intentionally, knowingly or recklessly.” Id. We stated they could not convict under (a)(2) because the court had not defined “negligently.” Id. We determined the jurors could not convict under (a)(3) because the court had not defined “attempt,” “physical menace,” or “imminent.” Id. Thus, we reversed appellant’s conviction for simple assault for failure to define the above terms because they were “legal terms whose meaning laymen do not necessarily understand without judicial guidance.” Id. Similarly, we reversed appellant’s robbery conviction in Robinson, declaring that it was error not to define “theft,” an element of an offense. Id., 284 Pa.Superior Ct. at 157, 425 A.2d at 750.

Although we are cognizant that Robinson, supra, was decided in the context of requiring elements of an offense to be defined, we find its reasoning as persuasive in the case sub judiee. Moreover, we find this to be particularly true in light of the fact that “recklessly” as used in 18 Pa.C.S.A. § 309(b) has been defined by our legislature. Our Commonwealth’s Criminal Code contains a definitional section, 18 Pa.C.S.A. § 103. It reads in pertinent part:

§ 103. Definitions
Subject to additional definitions contained in subsequent provisions of this title which are applicable to specific provisions of this part, the following words and phrases when used in this title shall have, unless the context clearly indicates otherwise, the meanings given to
them in this section:
♦ * # * * #
“Recklessly.” The meaning specified in section 302 of this title (relating to general requirements of culpability) and equivalent terms such as “recklessness” or “with recklessness” have the same meaning.
(emphasis added.)

As the duress defense, § 309(b), does not provide an “additional definition” of recklessly, see supra, the legislature intended by the enactment of § 103 that we look to § 302 for its definition. Section 302 defines “recklessly” as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustified risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

18 Pa.C.S.A. § 302(b)(3).

We accordingly feel that the rationale behind Robinson applies equally to an element of the defense of duress, as it does to the elements of an offense. Section 103 indicates that § 302 provides the normal meaning of “recklessly” throughout the Criminal Code. Since “recklessly” in the offense of simple assault in Robinson is also defined in § 302, we believe that the reasoning articulated in Robinson, supra, mandates that we find it was error for the trial court not to define “recklessly” in a jury instruction. If Robinson held in part that it was impossible for a layperson to understand the definition of “recklessly” as an element of an offense, we fail to see how it is more understandable where it appears as an element of the duress defense. We find this particularly to be true in light of the language of § 309(b) and its purpose.

Both language and purpose of § 309(b) indicate that a jury instruction as to “recklessness” is efficacious. Section 309(b) provides exceptions to the duress defense in certain instances where the actor placed himself in risk of becoming subjected to duress. The language provides two such instances where the defense does not apply. First, the defense does not apply where the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. § 309(b), supra. Second, whenever negligence suffices to establish culpability for the offense charged, the defense is unavailable if the actor negligently placed himself in a situation where duress was probable. § 309(b), supra. Consequently, we find persuasive the appellant’s argument that “recklessly” cannot be taken to be a synonym for “negligence.” Appellant has been found guilty of robbery, a crime in which negligence does not suffice to establish culpability. At the very least, an instruction should make it clear that the definition of “recklessly” is not synonymous with the definition of “negligence.”

Moreover, despite the lack of a legislative history for this provision, our Criminal Code has been adopted from the Model Penal Code, which has extensive commentary as to the Duress defense. The Duress Defense in this Commonwealth is based on § 209 of the Model Penal Code. Under the Model Penal Code, “recklessly” was meant to have a particular meaning that was obviously more than negligence:

Subsection (2) accepts the view that there should be no exculpation if the actor recklessly placed himself in the situation in which it was probable that he would be subjected to duress. Though this provision may have the effect of sanctioning conviction of a crime of purpose when the actor’s culpability was limited to recklessness, we think the substitution is permissible in view of the exceptional nature of the defense. The provision will have its main room for operation in the case of persons who connect themselves with criminal activities, in which case too fine a line need not be drawn. When there is no more than negligence, however, on the actor’s part in placing himself in a situation where duress was probable, we follow the normal pattern of the Code. The defense is excluded only on a charge which negligence suffices to establish culpability ... The difference between inadvertence and the conscious risk creation involved in recklessness appears to justify discriminating in this way.

Model Penal Code, Comments, Tentative Draft 10, at 8 (emphasis added).

It is pertinent to note that the Model Penal Code emphasizes conscious risk creation. We also note that “[sjtatutes uniform with those of other states shall be interpreted and construed to effect their general purpose to make uniform laws of those states which enact them.” 1 Pa.C.S.A. § 1927.

We further believe that the need for an instruction as to the meaning of the word “recklessly” is also supported by a reflection on the duress defense made by Sheldon S. Toll, the Reporter for the Pennsylvania Crimes Code, only one year after our Criminal Code was revised to reflect the Model Penal Code. Reporter Toll opined in reference to subsection (b):

The provision set forth in subsection (b) is also new. Its main application is with regard to persons who connect themselves with criminal activity and it states the rule that if the defendant had full opportunity to avoid coercion, the defense is not available.

Sheldon S. Toll, A Practitioner’s Guide to Defences under the New Pennsylvania Crime Codes, 12 Duq.L.Rev. 849, 857 (1974) (emphasis added).

The trial court’s holding leaves the jury adrift on the seas of uncertainty, depriving them of a rudder which will inform their decision instead of their own potentially idiosyncratic conception of the word. A trial court instruction is especially important given the context of when a jury must often decide whether a defendant “recklessly” placed himself in a situation where duress was probable. As both the Model Penal Code Commentary and Reporter Toll note, the jury will have to consider whether subsection (b) applies where a defendant is connected with some type of criminal activity. Left to their own devices, there is the potential that the jury will assume that any criminal activity constitutes recklessness needed to obviate the defense, despite the fact that it is clear that more than negligence is needed in the case sub judice. It is incumbent on a trial court in a jury instruction of duress to make clear that a criminal defendant has to consciously create the risk of becoming subject to duress. We conclude that it is incumbent on a trial court to define “recklessly” when instructing a jury as to the exception to the duress defense. We further conclude that such an instruction should track the language in § 302.

Let us assume that the facts are as claimed by the appellant. These alleged facts illustrate graphically the importance of fleshing out what “recklessly” means for the jury. The appellant asserts the following. He bought $60 worth of drugs, but did not pay the sellers. The sellers later that same day threatened that they would beat him to death and throw him into a river if they were not paid immediately. They then took him to a local bar, with the understanding that he would attain the $60 by robbing that bar or pay with his life. Appellant entered the bar and proceeded to attempt to rob it.

Assuming these facts to be true, the case is very close to a classic case of duress, where quite arguably the appellant did not place himself in the sort of situation where this sort of duress would be probable. The appellant under these facts does not appear to be a hardened criminal with full opportunity to avoid coercion, but only some poor unfortunate who bought a one-time, small amount of drugs on credit and was forced to do something totally unexpected to pay for the drugs the same day. It would appear under these facts that appellant was nothing more than negligent, if even that. It would be hard to find a more sympathetic criminal defendant (assuming these were the only facts). A definition of “recklessly” would assist a defendant in similar circumstances to avoid a jury’s distaste for criminal activity (drug use).

However, upon examination of all the facts in the case sub judice, the trial evidence did not present a clear cut case of duress, as the appellant indicates, but presented the jury with a defendant with obvious contradictions in his story. There is substantially nothing more than the appellant’s testimony backing his tale, and this testimony has the appearance of being contrived. Appellant could not recall the names of the two drug dealers who threatened him, although he asserted that everyone in the projects knows them. It is true that the bartender, Edward Gurne, and his patron, Russell Merkel, testified that after Mr. Gume pulled a .357 Magnum on the appellant, the appellant fled stating something that may be construed to support his story. Mr. Merkel testified that appellant as he fled said something to the effect that he had somebody outside and to throw a glass down and break it. Mr. Gume confirmed that appellant said something about throwing down a glass. Both men appear to have testified that whatever it was that appellant was saying, they thought it was odd and could not understand it. Moreover, the appellant specifically testified that after he said it was a stick up, but before the bartender pulled his gun, he told the bartender it wasn’t a stick up and that he was sorry. Neither Mr. Gurne nor Mr. Merkel testified to remembering anything of the sort.

Although appellant’s paramour testified that appellant left her apartment in the company of two black men, she did not say whether they were drug dealers and could not remember their names. She did not verify appellant’s testimony that they came to the door of her apartment with a knife and a baseball bat. Despite the appellant’s claim that he told the arresting officers he was forced to commit the crime, both officers testified on rebuttal that they had never heard this story before. To the contrary, Trooper Christie testified that appellant had told him that the crime resulted because he was shooting up. Mr. Gurne testified that when he identified the defendant after the attempted robbery, the appellant was half-naked in the back of a police car moving back and forth, chanting. Moreover, it came out at trial that counsel had filed, with appellant’s knowledge and approval, an alibi defense to this action. However, at trial appellant maintained he had lied to his counsel about having an alibi because he thought no one would believe that he had been forced to commit a crime. Similarly, he lied to the police when captured claiming he was only wearing pants and sneakers that night by choice, despite the fact it was a rather brisk evening. However, he tacitly admitted at trial that he was wearing the shirt and jacket identified as his, but shed them to prevent identification. He admitted lying to the police about wearing the same because he thought no one would believe his story.

Thus, although we find that the appellant has established the first two prongs of the ineffectiveness test, he has not established that he was prejudiced because a correct duress instruction would not have led to a different verdict. See, Commonwealth v. Humphreys, 367 Pa.Super. 154, 163-4, 532 A.2d 836, 840 (1987) alloc. den., 518 Pa. 624, 541 A.2d 1136 (1987) (holding that even though the court could find no reasonable basis for trial counsel’s failure to object to a jury charge, reversal not mandated under Robinson unless prejudice established). There exists no reasonable probability that had a correct instruction been made, the verdict would have been different. See, e.g., Commonwealth v. Weisman, 401 Pa.Super. 62, 584 A.2d 980, 985 (1990), appeal den., 528 Pa. 644, 600 A.2d 195 (1991) (error is harmless where the impact of the error is so slight that it can be concluded beyond a reasonable doubt that the error could not have contributed to the verdict); Commonwealth v. Pierce, 515 Pa. 153, 163, 527 A.2d 973, 977 (1987). Consequently, the verdict must be affirmed.

Judgment of sentence affirmed.

WIEAND, J., files a concurring statement.

WIEAND, Judge, concurring:

I agree with the majority’s conclusion that a jury instruction on the defense of duress should have included a definition of the term “recklessly” as contained in the Crimes Code at 18 Pa.C.S. § 302. In order to prevail upon a claim of ineffective assistance of counsel, however, appellant was required to demonstrate that counsel’s failure to object to the erroneous jury charge was unreasonable and so egregious as to have deprived him of a fair trial, i.e., a trial whose result was reliable. See: Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because, in my judgment, appellant failed to demonstrate such prejudice, I agree that the judgment of sentence should be affirmed.

      . The trial court gave the following jury instruction as to the duress defense:
      Duress is a defense to a criminal charge. A defendant acts under duress when he is coerced into doing an act which would otherwise be criminal by the threat to use unlawful force against him which a person or reasonable firmness in his situation would have been unable to resist.
      You will note that it is not enough that the force threatened actually coerced the defendant into doing the act. The force threatened must be such that a person of reasonable firmness in the same situation as a defendant would have been unable to resist it.
      In determining whether a person of reasonable firmness in the defendant’s situation would have been unable to resist, you should consider the seriousness of the crime which the defendant was asked to commit, the nature and severity of the force threatened, any alternative way in which the defendant might have escaped or averted that force, the age, physical condition and strength of the defendant, and all other factors which might bear on the reaction of a person of reasonable firmness in the same situation.
      Even though a defendant acts under duress, he cannot claim the defense if he recklessly placed himself in a situation in which it was probable that he would be subjected to duress.
      The Commonwealth has the burden of disproving the defense of duress. Thus, you cannot find the defendant guilty of the crime of robbery unless you are satisfied beyond a reasonable doubt that the defendant did not act under duress or that he recklessly placed himself in a situation in which it was probable that he would be subjected to duress.

      . We note that the offense of simple assault, 18 Pa. § 2701, similar to the duress defense does not contain its own definition of "recklessly” and thus we must look to 18 Pa.C.S.A. § 302(b)(3) for its definition.


author: CAVANAUGH, Judge:

text:
    611 A.2d 1208
    CHILDS INSTANT HOMES, INC. and Childs Instant Homes, Inc., d/b/a Colonial Heritage, Appellees, v. Robert B. MILLER, Doris Jane H. Miller and Barbara Lee Miller now Barbara Lee Lefbvere, Appellants.
    Superior Court of Pennsylvania.
    Argued April 30, 1992.
    Filed June 15, 1992.
    Reargument Denied Aug. 13, 1992.

      J. Michael Ruttle, Newtown, for appellants.
    Peter N. Harrison, Doylestown, for appellees.
    Before CAVANAUGH, CIRILLO and POPOVICH, JJ.
   CAVANAUGH, Judge:

Appellants, Robert and Doris Miller and their daughter, Barbara, appeal from an adverse judgment against them in an ejectment action pursued by appellee, Childs Instant Homes, Inc.

The Millers owned and, through their daughter, occupied a mobile home which was located, pursuant to a lease, in a mobile home park owned by Childs. There is no question that the tenancy at Childs is one covered by the “Mobile Home Park Rights Act” (MHPRA) of November 24, 1976, 68 P.S. § 398.1 et seq. The question is, however, whether the owner was bound to and did duly comply with the requirements of the Act in seeking and obtaining judgment of ejectment against appellants.

Appellants argue that the Act established an exclusive scheme for landlords who seek to recover possession of space and facilities leased in a mobile home park and that appellee, having failed to follow the strict requirements of the Act, is not entitled to possession. Appellees argue that appellants had a month-to-month lease which has been duly terminated; that they have rejected a proffer of a new lease; that the provisions of the MHPRA apply only to evictions under a leasehold and that the court’s determination of their right to recover possession is without error. Appellees argue that, otherwise, appellants and others in their position would have, in effect, a statutory right to possession of premises owned by another in perpetuity. We agree with the trial court and affirm.

The MHPRA Act limits the right of a mobile park owner to “evict” a resident to four described circumstances and requires adherence to specific notice and time procedures before eviction may be accomplished. 68 P.S. § 398.3. Here the owner’s claim is that the lease had expired and the other bases for eviction are clearly not present, there was no attempt to follow the notice and timing provisions. On the other hand, the appellant residents resist the claim of possession on the ground that the Act covers their tenancy and the statutory procedures were not followed. Appellants rely in part on the sole appellate authority cited by either party. In Malvern Courts, Inc. v. Stephens, 275 Pa.Super. 518, 419 A.2d 21 (1980), a panel of this court reversed an order which would permit an eviction. In that case, the eviction was sought for one of the permissible reasons under the Act (violation of rules of mobile home park) but the panel found that there was insufficient compliance with the notice provision of the Act and, therefore, reversed the order of the trial court.

In the present case the appellee did not seek possession for any of the reasons provided in the Act, and, therefore, did not attempt to comply with the notice and timing requirements. Thus, Malvern Courts did not address our present concerns and is not relevant to our disposition.

The trial court herein determined that the Mobile Home Park Rights Act did not purport to cover the situation where a lease had expired and the tenant has rejected the proffer of a new lease. The court held that the owner was entitled to the remedy of ejectment and directed the tenants to give up possession. In so ordering, the court was following an authority in the same county which arose under nearly identical circumstances. Childs Instant Homes, Inc. v. Wolstenholme, 5 Pa.D. & C. 4th 536 (1989). Childs I in turn relied upon the decision in G & G Mobile Home Sales v. Godfrey, 15 Pa.D. & C. 3rd 752 (1979). In that case, in an opinion authored by former President Judge Sweet, the court dealt also with an attempt by an owner to recover possession after the term of a lease had expired. In holding that the MHPRA Act provision did not apply to expired lease situations, the court, in part, opined:

We can do this [preserve constitutionality] rather easily by holding that the provisions of the Act, 68 P.S. § 398.-3(a)(1) through (4), are grounds for eviction, and recognize that expiration of the term is another thing altogether.
It is easier to do this because of two things which are said in the Rights Act. Section 398.6, disclosure of fees, says: “However, rent shall not be increased during the term of the lease.” (Emphasis supplied.)
Section 398.16, retaliatory evictions, says this: “Any action by a mobile home park owner or operator to recover possession of real property from a mobile home park resident or to change the lease within six months of a resident’s assertion of his rights under this act or any other legal right shall raise a presumption____” (Emphasis supplied.) Observe the phrase, even though it is split, “action ... to recover possession of real property.”
These two usages quoted immediately hereinbefore seem to me to mean that there is such a thing as “the term of the lease” and that the legislature was aware that an action to recover real property at the expiration of the term is a different thing from an eviction.
Read that way, section 398.3, evictions, is not germane to our case since it deals solely with recovery of possession before the end of the term.
One prefers to construe the Rights Act in that way so as to avoid the complex questions of retroactivity and constitutionality which would come up if we treated this as applicable to mere recovery of premises at the end of the term.

G & G Mobile Home Sales v. Godfrey, 15 Pa.D. & C. 3rd at 755-756 (1974). (Parenthetical expression ours).

Our reading of the Act is in accord and we are guided by the application of long standing principles:

“[L]egislative intent is considered the polestar of statutory construction.” Mount Laurel Racing Association v. Zoning Hearing Board, Municipality of Monroeville, 73 Pa.Commonwealth Ct. 531, 537, 458 A.2d 1043, 1046 (1983); see also, 1 Pa.C.S.A. § 1921. Thus, in order to properly ascertain the meaning of a statute, we are required to consider the intent of the legislature. Commonwealth v. Stewart, 375 Pa.Super. 585, 592, 544 A.2d 1384,1389 (1988), alloc. den. 520 Pa. 604, 553 A.2d 967 (1988). “Moreover, we are permitted to examine the practical consequences of a particular interpretation.” Lehigh Valley Cooperative Farmers v. Commonwealth, Bureau of Employment Security, Department of Labor and Industry, 498 Pa. 521, 526, 447 A.2d 948, 950 (1982) (“[I]n ascertaining legislative intent, the practical results of a particular interpretation may be considered.” (citations omitted).) Pursuant to 1 Pa.C.S.A. § 1922, we are to presume that the General Assembly did not “intend a result that is absurd, impossible of execution or unreasonable.” Where the words of a statute are not explicit, the intention of the legislature may be derived by such factors as, inter alia, the occasion and necessity for the statute, the circumstances under which it was enacted, the object to be attained, the consequences of a particular interpretation, and the contemporaneous legislative history. 1 Pa.C.S.A. § 1921(c).

We agree with this analysis and hold that the procedures mandated by the MHPRA have no application where the owner or one in his position properly seeks to recover possession of leased space and where there has been an expired lease and a rejection of a proffered new lease offered in compliance with the Act.

The appellees herein, and to an extent the lower court, argue that eviction applies only to cases where there is a current lease in force and that ejectment applies when there is no lease and that, therefore the Act has no applicability to ejectment cases. Appellees furnish no persuasive authority so holding and we are inclined to believe that this distinction is too facile. Ejectment is a form of action while eviction is an act of dispossession of land and the two are not mutually exclusive. Thus, the possessor of a judgment of ejectment might have to resort to a form eviction. Eviction is not a form of action and is not alluded to in the Pennsylvania Rules of Civil Procedure. A landlord’s rights of possession against a tenant are covered by The Landlord and Tenant Act of 1951 as amended, 68 P.S. § 250.101 et seq., including specifically, Article V Recovery of possession. See 68 P.S. § 250.501 et seq.; Kuriger v. Cramer, 345 Pa.Super. 595, 498 A.2d 1331 (1985).

Finally, since we do not find appellees in their present action to be bound by the strictures of the MHPRA, the provision therein at § 398.4 has no effect on the liquidated damages rights of the owner which is properly determined by the terms of the lease between the parties.

Judgment affirmed.

      . In its opinion, the court provided its view of the intent of the Act:
      The purpose of this legislation is to give special protection to mobile home owners in mobile home parks. One reason for the distinction between mobile home park owners and other landlords is the hybrid type of property relationship that exists between the tenant who owns the home and the landlord who rents only the lot on which the mobile home sits. In most instances a mobile home owner in a park is required to remove the wheels and anchor the home to the ground in order to facilitate connections with electricity, water and sewerage. Thus it is only at substantial expense that a mobile home can be removed from a park with no ready place to go. The legislature, while recognizing the right of the mobile home park owner to establish and publish reasonable rules and regulations relating to tenants in the part, has sought to prevent arbitrary evictions at a substantial expense to park residents.

        Malvern Courts, Inc. v. Stephens, 275 Pa.Super. 518, 522, 419 A.2d 21, 23 (1980).

      . To the extent that Bisping v. Layman, 38 Pa.D. & C. 3rd 414 (1985) differs from our conclusion, it is disapproved.


text:
    611 A.2d 1211
    COMMONWEALTH of Pennsylvania v. Daniel HARPER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 19, 1992.
    Filed June 16, 1992.

      Gregory H. Chelak, Hawley, for appellant.
    Curtis J. Rogers, Asst. Dist. Atty., Stroudsburg, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and BECK, JJ.
   BECK, Judge.

The issue we explore, inter alia, is the fourth amendment meaning of “seizure of the person” after the United States Supreme Court’s decision in California v. Hodari D., 499 U.S.---, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

This is an appeal from the judgment of sentence imposed upon Daniel Harper after a jury convicted him of one count of possession with intent to deliver cocaine and one count of simple possession of cocaine. Appellant seeks relief on three grounds. First, he argues that the trial court erred in denying his motion to suppress evidence. Second, he argues that the evidence was insufficient to sustain his conviction. Finally, appellant contends that the trial court erred in sentencing him under the mandatory minimum sentencing guidelines of the sentencing code without allowing him the opportunity to present evidence, at the sentencing stage, on the amount of cocaine actually in his possession. We conclude that appellant is not entitled to relief and we affirm the judgment of sentence.

The evidence upon which appellant was convicted was as follows. Police officers in Stroudsburg, Pennsylvania were working in a special narcotics interdiction unit designed to apprehend narcotics traffickers at transportation terminals. Agent Ronald Paret and a partner were assigned to this unit and were watching passengers at the Martz Trailways Bus Terminal in Stroudsburg. Agent Paret saw appellant and his companion purchase round trip bus tickets to New York at about 4 P.M. on April 11, 1990, and board a bus to New York City. Neither was carrying any luggage. Agent Paret had no other information regarding the two individuals, nor did he know when they would be returning to Stroudsburg.

However, to follow-up on the investigation, Agent Paret returned to the bus terminal just past midnight to see who, if anyone, got off the bus from New York City. He watched the passengers disembark and saw appellant and his companion get off the bus and walk toward him. Paret, who was not in uniform at the time, made eye contact with the two men at which point both men turned in the opposite direction and began a “very fast-paced walk” away from the officer. As they walked away, Agent Paret approached them and identified himself as a police officer. Appellant and the other man broke into a run, rounded the corner and headed for the rear of the building. The police officer ran after them and as he followed them, he saw appellant take off the warm-up jacket he was wearing and throw it down. A moment later appellant did the same with a blue wool hat he was wearing. Immediately thereafter, Paret lost sight of appellant because he ran between some houses.

Having temporarily lost sight of appellant, Paret circled back and retrieved the discarded items of clothing. Alongside the warm-up jacket, Paret found a clear plastic bag containing white powder. The hat also contained a small bag of white powder. Meanwhile, other police officers had detained appellant. Agent Paret walked over to where appellant was stopped and advised him that he was under arrest. The white powder tested positive for cocaine.

The bags contained a combined total of 11.5 grams of cocaine. At trial, Agent Paret testified that the street value of the drugs seized was about twelve hundred dollars ($1,200.00). Agent Paret testified that in his experience, this quantity of cocaine was too large to be consistent with purely personal use. He also stated that cocaine for personal use was available in Stroudsburg and that, given the circumstances of appellant’s round trip journey to New York to buy the drugs in bulk, it was his expert opinion that the drugs were possessed for resale.

Appellant challenges the trial court’s refusal to suppress the evidence, i.e., the cocaine discarded by him and recovered by the police. Appellant argues that since Agent Paret had neither probable cause to arrest him nor reasonable suspicion to effect an investigatory stop, the cocaine must be excluded as fruits of an unconstitutional seizure of his person. The trial court found that appellant’s activities upon seeing Agent Paret gave rise to a reasonable suspicion that criminal activity was afoot and that therefore the drugs were the fruits of a reasonable stop. In fact, as a result of a recent and very similar United States Supreme Court case, California v. Hodari D., 499 U.S. -, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), our resolution of the issue is much simplified. In our view, as will be discussed infra, Hodari D. represents a significant departure from prior fourth amendment cases. However, it is also clear that Hodari is directly on point and governs the result here. Thus, although in necessary reliance on Hodari D. we follow a wholly different rationale from that which the trial court advanced in explaining its ruling, we conclude that the motion to suppress was properly denied.

In Hodari D. a group of young people huddled around a car scattered at the approach of an unmarked police car. The two officers occupying the car were wearing jackets embossed with “police” on the front and back. Hodari D. ran through an alley and one of the officers ran after him. The officer pursuing Hodari took a different route, so that, in a few moments, the officer was running straight at Hodari. Hodari didn’t see the officer until he was almost upon him at which point Hodari discarded a small rock which turned out to be crack cocaine. Ultimately, Hodari was tackled, handcuffed and arrested.

The trial court denied Hodari’s motion to suppress. The California Court of Appeals reversed, finding that Hodari had been “seized” when he saw the officer running towards him, that the seizure was unreasonable under the fourth amendment and that the cocaine was the fruit of the unlawful seizure. The United States Supreme Court granted certiorari and reversed.

The issue in Hodari, as the Supreme Court stated, was “whether, at the time he dropped the drugs, Hodari had been ‘seized’ within the meaning of the Fourth Amendment.” California v. Hodari D., 499 U.S. at —, 111 S.Ct. at 1548, 113 L.Ed.2d at 695. If so, the drugs would have been the fruits of an unlawful seizure (given the conceded lack of a reasonable basis for the stop — see footnote 2) and should have been suppressed. On the other hand, if Hodari had not been seized when he dropped the drugs, the drugs would have been abandoned by Hodari and lawfully recovered by the police; Under those circumstances, the drugs were admissible. Id., 499 U.S. at-, 111 S.Ct. at 1548-50, 113 L.Ed.2d at 695-696.

Mr. Justice Scalia delivered the opinion of the Court. He began by noting that the fourth amendment’s protection against “unreasonable ... seizures” includes seizures of the person. The question is what constitutes such a seizure for purposes of the fourth amendment. Clearly, an “application of physical force to restrain movement” is a seizure. Id., 499 U.S.-, 111 S.Ct. at 1550, 113 L.Ed.2d at 697. However, the Court found that a “seizure” will not result when the police attempt to demonstrate a “show of authority” to an individual who then refuses to capitulate to it. Even though the Court accepted for purposes of the decision that the officer’s pursuit of Hodari was a “show of authority” which manifested a call to halt, it also categorically rejected Hodari’s argument that this “show of authority”, without more, constituted a seizure or a constitutionally cognizable restraint of his liberty. Thus, the Court stated:

The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not.

Id.

Illustrating its point with respect to what is not a seizure, the Court stressed:

It does not remotely apply, however, to the prospect of a policeman yelling “Stop, in the name of the law!” at a fleeing form that continues to flee. That is not a seizure. Nor can the result [Hodari] wishes to achieve be produced — indirectly, as it were — by suggesting that [the officer’s] uncomplied-with show of authority was a common-law arrest, and then appealing to the principle that all common-law arrests are seizures. An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority.

Id. (footnote omitted; emphasis in original).

The Court concluded simply:
In sum, assuming that [the officer’s] pursuit in the present case constituted a “show of authority” enjoining Hodari to halt, since Hodari did not comply with that injunction he was not seized until he was tackled. The cocaine abandoned while he was running was in this case not the fruit of a seizure, and his motion to exclude evidence of it was properly denied.

Id., 499 U.S.-, 111 S.Ct. at 1552, 113 L.Ed.2d at 699.

As noted above, Hodari substantially narrowed the definition of what constitutes a “seizure” for purposes of fourth amendment protection and in so doing significantly altered the direction of earlier case law. Prior to Hodari it was understood that, while not every approach by a police officer toward a citizen involved an encounter of constitutional dimension, certain signposts were used by the courts to determine whether the intrusion by the police reached the level of a seizure. In re Jermaine, 399 Pa.Super. 503, 508, 582 A.2d 1058, 1060 (1990). Generally, a seizure was thought to have occurred, for purposes of triggering constitutional protection, if the officer “by means of physical force or show of authority, has in some way restrained the liberty of a citizen----”. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). The test to determine whether a sufficient restraint of personal liberty has occurred was first formulated in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). To distinguish between a constitutionally significant seizure and an police-citizen encounter without fourth amendment implications, the Mendenhall court noted the following:

The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.
******
We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

United States v. Mendenhall, 446 U.S. at 553-54, 100 S.Ct. at 1877, 64 L.Ed.2d at 509 (citations omitted) (emphasis supplied).

The objective “free-to-leave” standard articulated in Mendenhall has been reiterated and applied repeatedly by the courts. See e.g. Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); Commonwealth v. Ellis, 379 Pa.Super. 337, 549 A.2d 1323 (1988). The standard was an objective one, i.e. dependent not upon a particular suspect’s subjective impressions or reactions, but upon a reasonable person’s interpretation of the police’s conduct. Thus, as the dissent in Hodari noted, the California Court of Appeal applied the traditional Mendenhall/Chesternut test to the facts before it in Hodari and concluded as follows:

This case involves more than a pursuit, as [the officer] did not pursue [Hodari], but ran in such a fashion as to cut him off and confront him head on. Under the rationale of Chesternut, this action is reasonably perceived as an intrusion upon one’s freedom of movement and as a maneuver intended to block or “otherwise control the direction or speed” of one’s movement.

California v. Hodari D., 499 U.S. at-, 111 S.Ct. at 1559 n. 14, 113 L.Ed.2d at 708 n. 14 (Stevens, J., dissenting).

The United States Supreme Court, however, rejected the argument that Hodari was “seized” for fourth amendment purposes because under the Mendenhall/Chestemut standard a “reasonable person would have believed he was not free to leave.” The Hodari Court, in what the dissent characterized as “nothing if not creative lawmaking”, id. 499 U.S. at-, 111 S.Ct. at 1559, 113 L.Ed.2d at 707, explained that the Mendenhall/Chestemut test did not state that a citizen is seized whenever he or she reasonably perceives that his or her liberty has been restrained. Id., 499 U.S. at -, 111 S.Ct. at 1551, 113 L.Ed.2d at 698. Instead, the Mendenhall/Chestemut standard states a necessary but not sufficient condition for a fourth amendment seizure to have occurred. After Hodari, even if a citizen might reasonably perceive, based on an officer’s words or actions, that he or she was not free to leave, unless the citizen also complies with the perceived order, no seizure has occurred.

As is evident from the preceding discussion, our determination of whether a fourth amendment seizure occurred in the instant case prior to appellant’s shedding his jacket and hat, is significantly changed since Hodari was decided. No longer do we examine whether a reasonable person, in appellant’s place, would have believed that he was not free to leave and that, by pursuing him, the police meant to restrain his liberty and indeed effect his capture. Hodari’s plain answer is that, since appellant did not yield to this admitted show of authority, no fourth amendment guarantees are implicated. Whatever may be the implications regarding the protection the fourth amendment henceforth provides for our citizens, it is indisputable that Hodari has altered the reach of that constitutional right.

It is clear that Hodari controls the instant case. In fact, the two are indistinguishable. As in Hodari, even assuming that Agent Paret’s approach and pronouncement that he was police was a “show of authority” akin to an order for appellant to stop, the fact that appellant did not obey but instead took off running is dispositive. No seizure within the meaning of the fourth amendment had taken place at the time appellant discarded his jacket and hat containing the cocaine. Therefore, the drugs were not the fruits of an unlawful seizure of the appellant and were properly admitted in evidence.

We next address appellant’s challenge to the sufficiency of the evidence. In particular, appellant claims that there was insufficient evidence to support the inference that appellant possessed the cocaine with intent to deliver, as opposed to for personal use. We disagree.

The standard by which this court judges the sufficiency of the evidence in a criminal case is settled. We must view the evidence in the light most favorable to the Commonwealth as verdict winner, and accept as true all evidence and all reasonable inferences therefrom, which, if believed, could properly support the verdict. Commonwealth v. Hughes, 521 Pa. 423, 429, 555 A.2d 1264, 1267 (1989). In order to uphold appellant’s conviction for possession of narcotics with intent to deliver, the Commonwealth must come forward with proof that appellant possessed a controlled substance, and did so with intent to deliver it. Commonwealth v. Cardona, 316 Pa.Super. 381, 387, 463 A.2d 11, 15 (1983). The intent to deliver may be inferred from an examination of all the facts and circumstances surrounding the case. Commonwealth v. Robinson, 399 Pa.Super. 199, 204, 582 A.2d 14, 17 (1990).

In support of his argument that the evidence failed to establish the requisite intent to deliver, appellant points out that Agent Paret’s testimony failed to reveal certain common indicia of drug trafficking. Appellant states that the officer had not made any “controlled buys” from him, had found no marked currency on him, and had seized “no scales, measuring items, unused plastic bags, wrapping material or paraphernalia” from him. However, the failure of the Commonwealth to introduce this assertedly missing evidence, particularly in the context of the instant case, is not dispositive of the sufficiency question. This court has held that the totality of the circumstances will be determinative, not the presence or absence of any particular piece of evidence ordinarily indicative of drug trafficking. See Commonwealth v. Robinson, supra, 399 Pa.Super. at 204, 582 A.2d at 17.

We conclude that here the totality of the circumstances permitted the jury to conclude, beyond a reasonable doubt, that appellant possessed the cocaine with intent to deliver it. The quantity of cocaine was substantial, unlike in the case relied upon by appellant, Commonwealth v. Smagala, 383 Pa.Super. 466, 557 A.2d 347 (1989). In Smagala, the accused possessed less than a gram of cocaine. Moreover, in Smagala, the small amount seized was taken along with all the necessary tools a drug user ordinarily would need to consume the cocaine either by inhaling it or converting it into crack for smoking. Although in Smagala a number of glassine baggies were also seized, many of them were damaged from prior use and not reusable. In sum, the Smagala court found that the totality of the circumstances led it to “the unavoidable conclusion that appellant intended either to smoke the cocaine or inhale it.” Id., 383 Pa.Super. at 477, 557 A.2d at 352.

In the instant case, by contrast, the Commonwealth’s expert stated repeatedly that the amount of cocaine, which was several-fold greater than that seized in Smagala, was “not consistent with personal use, but more consistent with intent to deliver.” Agent Paret explained that the purchase in bulk of a costly amount of cocaine after a hasty round trip to New York bespoke to him an “intent to bring the stuff back and make a profit from it.”

When questioned on cross-examination by defense counsel the expert stated that while he couldn’t “rule out” personal use, he insisted that based on his experience appellant’s possession was “more consistent with distribution.” He further explained that this conclusion was not based on amount alone but also took into account appellant’s activity in going to New York with such a quick turnaround time. Paret described New York as a major distribution point for cocaine. On re-direct examination Paret also testified that 11.5 grams would be an “uncommon” amount of drugs to purchase in a “street buy” which usually occurred in much smaller quantities.

In fact, we find this case indistinguishable from Commonwealth v. Robinson, supra, 399 Pa.Super. at 204, 582 A.2d at 17, wherein we noted that, although “cross-examination ... pointed up possible other conclusions, the [expert] witness remained unshaken in his opinion” that the drugs were possessed to resell. Agent Paret’s conclusion was similarly unshaken and was based on support from the record. The jury was free to accept his opinion and conclude that appellant possessed the cocaine with intent to deliver it. We note, of course, that there is no requirement that the Commonwealth exclude all possibilities consistent with innocence or that the expert be able to categorically rule out the possibility of possession for personal use. Cf Commonwealth v. Akers, 392 Pa.Super. 170, 180, 572 A.2d 746, 751 (1990)

Although appellant makes much of supposed “missing” evidence such as an absence of drug paraphernalia, marked currency, etc., in the context of this case, the lack of these potential indicia of drug dealing is wholly neutral. Common sense dictates that since appellant just got off the bus when he was apprehended, of course he had none of the typical drug marketing items with him.

Finally, we address appellant’s sentencing claim and, in particular, his argument that the trial court erred when it sentenced appellant under the mandatory minimum sentencing provisions of the controlled substances statute. 18 Pa.C.S. § 7508(a)(3)(ii) (conviction of intent to deliver more than 10 grams of cocaine subjects person to mandatory minimum sentence). In essence, appellant’s claim is that the trial court should have permitted evidence at sentencing, presumably proffered by appellant, that the bag of cocaine found by Agent Paret next to the discarded warmup jacket was not actually in appellant’s “possession or control”. Apparently, although this is not explicit from the record, appellant was anxious to call a witness who assertedly would have testified that the cocaine near the jacket “belonged” to him and not to appellant. The trial court was both concerned that such uncounselled testimony from the alleged witness would result in self-incrimination and also noted that such testimony was irrelevant since the jury had already convicted appellant of possession with intent to deliver. Appellant’s claim at sentencing, and now in his brief to this court, that he “did not possess or control the second packet of cocaine”, is a denial of culpability not properly raised at sentencing. Cf Commonwealth v. Kreiser, 399 Pa.Super. 370, 582 A.2d 387 (1990). We find that the trial court did not err in sentencing appellant under the mandatory minimum sentencing provisions.

Judgment of sentence affirmed.

      . It is well-settled that an appellate court may affirm the decision of the trial court if there is any basis on the record to support the trial court’s action. This is so even if we rely upon a different basis in our decision to affirm. See, e.g., Commonwealth v. Pacell, 345 Pa.Super. 203, 497 A.2d 1375, 1377 n. 1 (1985); Commonwealth v. Guimento, 341 Pa.Super. 95, 491 A.2d 166 (1985).

      . In Hodari, the state conceded that the police officers did not have reasonable suspicion under the standards developed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, to stop Hodari. In order to stop and briefly detain a citizen under Terry, a police officer must be able to point to specific, articulable facts which support a reasonable suspicion that criminal activity may be afoot. This investigative stop constitutes a restraint on liberty and is a seizure of the person within the meaning of the Fourth Amendment. Therefore in order for a Terry stop to be reasonable, thereby meeting the demands of the constitution, it must be based on a reasonable belief that the individual’s suspicious conduct suggests criminal activity. In Hodari, Mr. Justice Scalia accepts as at least arguable the theory that "young men who scatter in panic upon the mere sighting of the police” may justify a brief investigative stop under Terry. The Supreme Court did not decide the issue in Hodari but instead relied on the State’s concession that such a stop would be unreasonable.
      In our case, a similar concession has not been made by the Commonwealth. In fact, the trial court based its decision on the reasonableness of the police action under Terry, and the Commonwealth continues to argue that position to this court. However, we conclude that it is unnecessary to decide whether the "activity” observed by Agent Paret would have justified stopping appellant under the Terry standard. We need not reach that issue because, as will be discussed infra, under the teachings of Hodari, no seizure of the person within the meaning of the fourth amendment occurred prior to appellant's dropping the cocaine. It is unnecessary to debate the reasonable basis for a stop if no stop occurred from which a seizure of evidence followed.

      . Focusing on this analysis in particular, one commentator denounced the Hodari decision in these terms:
      [W]hat the Court in Hodari D. ought to have recognized is that the "not free to leave” concept of Mendenhall-Royer has nothing to do with a particular suspect’s choice to flee rather than submit or with his assessment of the probability of successful flight. But instead, as the dissenters lament, the majority “concludes that the timing of the seizure is governed by the citizen’s reaction, rather than by the officer’s conduct.” In this sense as well, Hodari D. is inconsistent with established Fourth Amendment jurisprudence, including principles emphasized in the very cases relied upon by the majority____ [I]n Michigan v. Chestemut, the Court reiterated that in determining whether a Terry stop has occurred, it is necessary to utilize a standard that "allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” Such is certainly not the case in Hodari D., for what would otherwise be a groundless and thus illegal Terry seizure becomes conduct totally outside the Fourth Amendment merely because of the suspect’s nonsubmission.
      3 W. LaFave, Search and Seizure § 9.2, p.89-90 (2d ed. 1987, Supp. 1992) (footnotes omitted).