author:
DEL SOLE, Judge:
      BROSKY, Judge,

text:
    538 A.2d 28
    Thomas C. SWIFT, Appellee, v. Robert MILNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 5, 1987.
    Filed Feb. 12, 1988.

      Heywood E. Becker, New Hope, for appellant.
    John Mongiovi, Lancaster, for appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

Appellee filed an action in assumpsit against Appellant alleging that the parties were among several joint venturers who had entered into an oral agreement by which certain property to be purchased at an impending tax sale would be owned equally by each member of the group. It was alleged in Appellee’s Complaint that the parties had agreed that the property could be purchased in one of the partner’s names; however, the joint venturers would still be equal owners. Appellee further contended that Appellant purchased the property in his own name and denied the remaining partners any use or interest therein. Thereafter, the instant breach of contract suit was brought against Appellant.

Preliminary motions were filed by Appellant, and were later denied by the trial court. Subsequently, Appellee filed a Motion for Judgment on the Pleadings. By its Order dated February 3, 1981, the trial court entered a partial judgment on the pleadings in Appellee’s favor but ordered a trial “limited to the question of the value of the real estate to determine the value of [Appellee’s] one-fifth interest.” (Order, 2/3/81, 3). The trial court’s disposition of the case was based on the fact that Appellant had failed to respond properly to the Complaint or file an opposing brief within ten days after service of Appellee’s brief pursuant to Rule 31(B) of the Lancaster Rules of Court. Rule 31 provides in part:

[a]ny respondent who fails to comply with this rule shall be deemed not to oppose the listed matter, and upon the expiration of such ten day period, the moving party may present the same to the court for the entry of an appropriate order.

In reviewing Appellant’s Answer to the Complaint, the trial court found that Appellant effectively admitted to all of Appellee’s allegations by virtue of the fact that each charge was answered with a general denial. See Pa.R.C.P. 1029(b), infra.

Appellant later filed a direct appeal with this Court from the Order. However, we held that the appeal was from an interlocutory order inasmuch as the trial on the issue of damages had yet to be conducted. Swift v. Milner, 296 Pa.Super. 463, 442 A.2d 1144 (1982). Following a trial on the issue of the value of Appellee’s interest in the land, a judgment was entered in Appellee’s favor in the amount $18,100. This timely appeal follows.

In Argument I of his brief, Appellant contends that Rule 31 of the Lancaster Rules of Court is unconstitutional on its face. Likewise, in Argument II Appellant states that Rule 31 is unconstitutional as applied. However, in neither of these arguments has Appellant articulated whether or not the rule is in dereliction of the Pennsylvania or United States Constitutions, or both. Moreover, Appellant does not posit which provisions of either Constitution are offended by the rule. Appellant simply states that the rule is unconstitutional and unreasonable. We remind Appellant that it is not the function of this Court to become Appellant’s counsel. When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, we shall not consider the merits thereof. Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 150 (1982). See also In Re Estate of Smith, 492 Pa. 178, 181, 423 A.2d 331, 332 (1980); Pa.R.A.P. 2116.

Contained within Argument II of Appellant’s brief is the assertion that the partial judgment on the pleadings should not have been entered since Appellee failed to give Appellant the proper notice of his Motion for Entry of Judgment. Rule 31 of the Lancaster Rules of Court provides that notice must be sent to all parties, or their counsel, within five business days after a matter is listed for disposition on the pre-trial proceedings lists. However, we shall not consider this claim insofar as it was not set forth in the statement of questions involved. Geyer v. Steinbronn, 351 Pa.Super. 536, 558, 506 A.2d 901, 913 (1986). See Pa.R.A.P. 2116(a).

Appellant raises as his third argument that the partial judgment on the pleadings should not have been granted since the pleading defects in his Answer to Appellee’s Complaint, which precipitated Appellee’s Motion for Judgment on the Pleadings, could have been easily remedied by amendment. We disagree.

Preliminarily, we must analyze the true effect of the trial court’s February 3, 1981 Order. Contrary to Appellant’s interpretation of that Order, the trial court did not grant the partial judgment on the pleadings solely on Appellant’s failure to comply with Rule 31. The trial court noted Appellant’s deviation from Rule 31 and commented that, pursuant to Rule 31’s language, Appellant was deemed not to have opposed Appellee’s motion. However, the trial court’s disposition of the case did not end at this juncture. Rather, the trial judge proceeded, as required, to conduct an independent evaluation of the pleadings. This review resulted in the correct determination that Appellant's Answer to the Complaint was insufficient to warrant further consideration of the case with respect to the issue of liability. In addition, the trial judge found that a trial on damages was necessary, given the Complaint’s insufficiency to support the alleged damages.

The determinant factor in the trial court’s decision to grant the partial judgment on the pleadings was the fact that Appellant did not respond to the Complaint’s allegations in the manner prescribed by Pa.R.C.P. 1029(b). Rule 1029(b) provides:

[ajverments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof, except as provided by subdivision (c) of this rule, shall have the effect of an admission.

Instantly, paragraphs three through ten of Appellant’s Answer merely contain the single word “Denied”. We agree with the trial court’s conclusion that these general denials effectively manifested Appellant’s admission to the facts averred in paragraphs three through ten of Appellee’s Complaint.

We note that in determining the propriety of the trial court’s award of a judgment on the pleadings, we must accept as true all well-pleaded statements of fact of the party against whom the motion is granted and consider against that party only those facts that are specifically admitted. The grant of a motion for judgment on the pleadings will be affirmed by an appellate court only when the moving party’s right to succeed is certain and the case is so free from doubt that a trial would clearly be a fruitless exercise. Jones v. Travelers Ins. Co., 356 Pa.Super. 213, 217, 514 A.2d 576, 578 (1986). In the case at bar, paragraphs three through ten of the Complaint encompassed all of the allegations on which Appellee based his claim. By failing to comply with Rule 1029(b), the admission of all allegations and averments resulted in the absence of material issues of fact on the issue of liability. Thus, we find that the trial court correctly granted the partial judgment on the pleadings.

Likewise, we are unconvinced that the partial judgment on the pleadings should be vacated since Appellant could have remedied the pleading defects by amendment. The record demonstrates that Appellee filed his Motion for Judgment on the Pleadings on January 5, 1981. The Motion was partially granted on February 3, 1981. Between these two dates, absolutely no effort was made on Appellant’s behalf to forestall the resultant judgment. Instead, Appellant’s counsel waited until February 9, 1981, at which time, a brief in opposition to Appellee’s Motion for Judgment on the Pleadings was filed. Likewise on that date, Appellant’s Motion for Amendment of Defendant’s Answer was filed. However, by Order of Court dated February 24, 1981, the trial court refused to consider the motion to amend insofar as it was improperly presented to the court: “the Motion for Amendment of Defendant’s Answer was not presented in Business Court and no order or rule to show cause was attached.” (Order, 2/24/81, 2).

We are cognizant that leave to amend pleadings has been liberally granted in this Commonwealth. “Pleadings may be amended at the discretion of the trial court after pleadings are closed, while a motion for judgment on the pleadings is pending, at trial, after judgment, or after an award has been made and an appeal taken therefrom. ” Biglan v. Biglan, 330 Pa.Super. 512, 521, 479 A.2d 1021, 1025-26 (1984). (Emphasis supplied). Nonetheless, we need not consider the propriety of the trial court’s action in this matter inasmuch as Appellant’s counsel chose to abandon any attempt to amend Appellant’s Answer to the Complaint. Once having notice by the trial court that the presentment to the court was defective, Appellant’s counsel had the opportunity to cure the flaw. The record reflects, though, that a subsequent motion for leave to amend was never properly presented to the court for consideration. Thus, we are constrained to find that any efforts to amend Appellant’s Answer to the Complaint were effectively abandoned.

Appellant’s fourth argument is that the trial court erred in refusing to grant his Petition to Open Judgment on the Pleadings. However, we are of the opinion that the February 3, 1981 partial judgment on the pleadings is not subject to petitions to open, as is in the case of default judgments. In Luckenbaugh v. Shearer, 362 Pa.Super. 9, 523 A.2d 399 (1987), we considered similar factual circumstances. In Luckenbaugh, the trial court entered an order dismissing the plaintiffs’ case with prejudice for failure to answer the defendant’s interrogatories. Later, the plaintiffs filed a petition to strike the dismissal, open judgment and motioned for rule to show cause. The defendant filed an answer to the plaintiffs’ motion. Subsequently, the trial court entered an order striking the dismissal and opening the judgment that it previously entered as a sanction for the plaintiffs’ failure to timely file answers to interrogatories. In Luckenbaugh, we found that the action taken by the trial court was incorrect:

[t]he judgment entered in this case however, was not entered by confession pursuant to a warrant of attorney. Also, it was not entered by default upon the filing of a praecipe. Rather, it was entered by the trial court in a contested proceeding because of the failure of the plaintiffs to comply with appropriate discovery requests. As such, it is not subject to attack by a petition for a rule
to show cause why judgment should not be open and/or stricken.
A judgment entered in a contested proceeding which ends the litigation must either be appealed within thirty days or the trial court must expressly grant reconsideration within thirty days from the entry of the judgment. Pa.R. A.P. 1701, 42 Pa.C.S.A.

Id., 362 Pa.Superior Ct. at 13, 523 A.2d at 401 (Emphasis supplied). We find that the rationale espoused in Luckenbaugh is dispositive. It is true that the order entering a partial judgment on the pleading was not appealable in the instant case inasmuch as a trial on damages was necessary. Nevertheless, this fact does not render the order subject to a petition to open. Thus, we need not consider Appellant’s claim that the trial court should have opened the partial judgment on the pleadings.

The fifth argument contains the accusation that Appellee’s counsel deceived Appellant’s counsel into believing that the sanctionative measures of Rule 31 would not be pursued on Appellee’s behalf. Appellant’s counsel complains that Appellee’s counsel then suddenly petitioned for entry of a judgment on the pleadings. We are nonplussed that an argument of this nature is contained within an appellate brief. It is quite apparent that Appellant’s counsel’s dissatisfaction with counsel for Appellee’s behavior does not evince grounds for appellate relief. We need not grant this argument any further consideration.

Appellant raises as a sixth issue the argument that the trial court’s January 6, 1981 Order was flawed. It is true that the Order, which directed that Appellee’s Motion for Judgment on the Pleadings be filed and entered in the pre-trial watch book, erroneously labeled the document a motion for summary judgment. However, Appellant does not state how this error prejudiced his case. For this reason, this issue must fail.

Finally, the seventh argument raised is the allegation that the February 3, 1981 Order was erroneous insofar as it states that Appellee’s Motion for Judgment on the Pleadings was personally served on Appellant’s attorney of record. Appellant argues that this method of service was in contravention of Pa.R.C.P. 233(a). Rule 233(a) provided in pertinent part:

[a]ll legal papers ... shall be served by leaving a copy for or mailing a copy to [a party] at the address of the party or his attorney of record endorsed on an appearance or prior pleading of the party.

Appellant states that Rule 233 mandated that his counsel was to receive notice of Appellee’s Motion in the mail at the address endorsed on prior pleadings. Instead, Appellant’s counsel received personal service made within Lancaster County. Appellant concedes that the service was efficacious. However, he states that the February 3, 1981 Order should not have been entered because of the procedural misstep. We cannot agree. Pa.R.C.P. 126 provides:

[t]he rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

(Emphasis supplied). Instantly, we find that error in serving Appellant’s counsel in no way affected Appellant’s substantial rights. Accordingly, we decline to disturb the Order.

Judgment affirmed.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent. While I concur with the majority’s determination on the merits of each issue presented, I would nonetheless quash the current appeal.

Pa.R.C.P. 227.1 requires that post-trial motions, specifying the grounds for post-trial relief, must be filed within ten (10) days of the filing of a decision in a non-jury trial. See Pa.R.C.P. 227.1(b)(2), (c)(2). Grounds not specified in timely post-trial motions are deemed waived. Id.

In the matter sub judice, the trial court handed down a final order on April 23, 1987, awarding judgment to appellee in the amount of $18,100.00. That order was entered upon the docket on April 29, 1987. As the order of February 3, 1981, granting appellee’s motion for judgment on the pleadings, pertaining to liability, was interlocutory, and hence non-appealable, see Swift v. Milner, 296 Pa.Super. 463, 466-467, 442 A.2d 1144, 1146 (1982), the entry of judgment on April 29, 1987 was the first final appealable order, and appellant was bound by Rule 227.1 to file post-trial motions, raising all issues intended to be preserved for appellate review, including the propriety of the grant of partial judgment on the pleadings, within ten days of the entry of judgment.

As appellant failed to file post-trial motions following the entry of judgment on April 29, 1987, I believe appellant has not preserved any issues for determination on the merits, and would quash.

      . Rescinded June 20, 1985, effective January 1, 1986.

      . Contrary to the view espoused in our colleague the Honorable John G. Brosky’s Dissenting Opinion, Appellant has not waived the issues regarding the appropriateness of the partial judgment on the pleadings by failing to preserve them through post-trial motions following the April 23, 1987 Order. Under most circumstances, the entry of a judgment on the pleadings is subject to direct appeal insofar as it terminates the case. The filing of post-trial motions is unwarranted. Pa.R.A.P. 301 (requisites for an appealable order). See Katz v. Katz, 356 Pa.Super. 461, 465, 514 A.2d 1374, 1376 (1986) (a final order is one which either ends the litigation or disposes of the entire case). Thus, once a judgment on the pleadings has been entered, the trial court may modify it only by the grant of reconsideration within 30 days after its entry. Thereafter, the trial court is without jurisdiction to modify or reverse the judgment. Pa.R.A.P. 1701. See Commonwealth v. Gordon, 329 Pa.Super. 42, 48, 477 A.2d 1342, 1345 (1984) (applying Rule 1701(b)(3)(ii)’s provision that reconsideration of an order which is the subject of an appeal must be granted within the time prescribed for the filing of a notice of appeal). In the case sub judice, the trial court entered a partial judgment on the pleadings only with respect to liability; the case remained open so that a trial on damages might be conducted. As a result, while the determination on the question of liability was "final”, it was nonappealable. Swift v. Milner, 296 Pa.Super. 463, 466, 442 A.2d 1144, 1146 (1982). This fact, however, in no way affected the “finality” of the partial judgment on the pleadings. There is no case law in Pennsylvania which would suggest that the nonappealability of a "final” order mandates that post-trial motions be filed once the order becomes appealable. Moreover, the partial judgment on the pleadings was filed on February 3, 1981. Thereafter, on April 23, 1987 when the award for damages was assessed, the trial court was without jurisdiction to reconsider the partial judgment on pleadings, or to modify or reverse the order.

      . The majority does not find the absence of post-trial motions to be problematic in this matter. The majority reasons that the order granting partial judgment on the pleadings' as to liability, albeit interlocutory, and nonappealable, was “final” on the question of liability, and incapable of modification or reversal beyond the term of court, thereby obviating the need for post-trial motions. I cannot agree.
      In the case of Yudacufski v. Commonwealth of Pa., Dept. of Transportation, 499 Pa. 605, 454 A.2d 923 (1982), in which appellant challenged the trial court’s denial of his pre-trial motion for change of venue, the Supreme Court held that appellant’s failure to include his venue challenge in post-trial motions, under the then-existing Rule 227.1, did not preclude appellate review. In response, Rule 227.1 was amended the following year to clarify that pre-trial civil rulings must be raised in post-trial motions to be preserved for appellate challenge, see Pa.R.C.P. 227.1(b)(1), and the following was included in the Explanatory Comment:
      In Yudacufski v. Commonwealth, Department of Transportation [cite omitted], the Supreme Court noted that the Rules of Civil Procedure governing post-trial practice ‘do not specifically include a requirement that pre-trial rulings must be raised in post-trial motions in order to be preserved.’ Subdivision (b) now contains such a provision. (Emphasis supplied).
      Moreover, it is well settled law that the thirty (30) day term of court rule, which precludes modification or reversal of final, appealable orders after the expiration of thirty (30) days, does not apply to interlocutory orders, which may be modified or reversed after the expiration of the term of court while the proceeding yet remains in the trial court. See In Re: In the Interest of C.K., 369 Pa.Super. 445, 458-459, 535 A.2d 634, 641 n. 3 (1987); see also Atlantic Richfield Co. v. J.J. White, Inc., 302 Pa.Super. 276, 279, 448 A.2d 634, 636 (1982), citing Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973). As the order granting partial judgment on the pleadings, albeit "final" on the question of liability, was interlocutory, it was subject to modification or reversal upon the filing of post-trial motions.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    538 A.2d 34
    COMMONWEALTH of Pennsylvania v. Thomas M. DELLIGATTI, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1987.
    Filed Feb. 11, 1988.

      H. David Rothman, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

Appellant was charged and convicted of five counts of Possession of Heroin in violation of 35 Pa.S.A. § 780-113(a)(16) and five counts of Delivery of Heroin in violation of 35 Pa.S.A. § 780-113(a)(30). Post-verdict motions were filed and denied by the trial court. Thereafter, Appellant was sentenced to three consecutive two-to-five years terms of incarceration and two consecutive ten years probationary periods. This appeal follows.

By his appellate brief, Appellant lodges the following arguments:

I. ' By agreeing to and allowing Appellant to retain a quantity of heroin to perpetuate his own addiction as the inducement for each of the five deliveries in issue, the police became so overinvolved that they violated due process and entrapped Appellant as a matter law;

II. Appellant was denied a fair trial because of the court’s refusal to make the informant available to the Appellant and his counsel before and during trial and because of the court’s refusal to instruct the jury, as requested, relative to the Commonwealth’s failure to produce the informant and because of the court’s refusal to allow counsel to argue inferences based on the Commonwealth’s failure to produce the informant;

III. The court erred and abused its discretion in refusing other points for charge;

IV. Appellant was denied a fair trial because he was not allowed an individual voir dire;

V. Appellant was denied a fair trial because the court refused to allow certain questions proposed for prospective jurors; and,

VI. The trial judge erred in a number of his evidentiary rulings and in restricting the cross examination of the Commonwealth’s primary witness, Detective Craig.

We begin with a synopsis of the facts leading to Appellant’s arrest. The record reflects that on August 8, 1985 Detective Timothy Craig, of the Pittsburgh Police Department, was working undercover in a drug-related investigation. On that date, Detective Craig accompanied a confidential informant to an apartment occupied by Gary Schillinger. Appellant was present in the apartment during this visit and introduced himself to Detective Craig. Detective Craig was introduced as “Jimmy” (N.T., 6/18/86, 22). Appellant asked Detective Craig and the informant what they were looking for. Detective Craig’s response was a “bundle” of heroin (N.T., 6/18/86, 23). After making three phone calls, Appellant asked Detective Craig if he wanted to go for a ride. Detective Craig drove as Appellant directed him to the 800 block of Rebecca Street in Wilkinsburg. Detective Craig stopped the vehicle, gave Appellant $220, and watched Appellant enter a building. A few minutes later, Appellant returned with a bundle of heroin (N.T., 6/18/86, 24-26). As Detective Craig drove Appellant back to the apartment, Appellant retained a few balloons for himself and gave the remaining balloons to Detective Craig (N.T., 6/18/86, 29).

The next time Detective Craig came in contact with Appellant was on September 3, 1985 at the Arcade Bar in Edgewood (N.T., 6/18/86, 30-32). Once again, Appellant asked Detective Craig what he could do for him. Detective Craig responded that he wanted another bundle of heroin. Appellant advised Detective Craig that he could obtain the heroin for him. The two men left the bar, entered Detective Craig’s vehicle, and drove to Rebecca Street again. Detective Craig handed $220 to Appellant, watched him enter the same building as before, and waited for Appellant’s return. Appellant came back to the vehicle, and as Detective Craig drove back to the bar, removed a couple of balloons from a bundle of heroin and gave Detective Craig the balance (N.T., 6/18/86, 33-35).

t On October 16, 1985, Detective Craig made arrangements to meet Appellant on the corner of Forbes Avenue and Braddock Avenue. At this meeting, Appellant asked Detective Craig what he was looking for. Once again, Detective Craig related that he wanted a bundle of heroin. Appellant agreed to secure the heroin. Detective Craig gave Appellant $220 and waited for his return. When Appellant returned to the street corner one half hour later, Detective Craig got into Appellant’s car. Appellant handed him a package, which had been opened, containing 12 balloons of heroin (N.T., 6/18/86, 37-41).

Detective Craig’s fourth encounter with Appellant occurred on October 23, 1985. The two men met at the same street corner as during the last transaction. Appellant asked Detective Craig what he was looking for. Detective Craig’s response was “the same” (N.T., 6/18/86, 42). Appellant agreed to obtain the heroin, received $220 from Detective Craig, and left. Approximately one hour later, Appellant returned and presented Detective Craig with 12 baggie corners of heroin (N.T., 6/18/86, 41-51).

The final drug purchase occurred on January 2, 1986. Detective Craig contacted Appellant and arranged to meet him once again at the corner of Forbes and Braddock Avenues. Appellant agreed to procure heroin for Detective Craig. On this occasion, Detective Craig was permitted to follow Appellant in his car to South 18th Street in the South Side of Pittsburgh. Both cars came to a stop, Appellant approached Detective Craig’s vehicle and asked for the usual $220. Appellant told Detective Craig to wait for him there and then drove away in his car. Appellant returned and handed Detective Craig a cigarette pack containing 11 baggie corners of heroin. At this time a surveillance team of the Pittsburgh Police Department arrived and Appellant was placed under arrest (N.T., 6/18/86, 51-57).

Appellant first contends that Detective Craig’s conduct in this case violated his due process rights, or in the alternative, amounted to entrapment. The due process claim is based on the fact that, during the course of their dealings, Detective Craig permitted Appellant to retain certain amounts of the acquired heroin. Appellant urges that Detective Craig’s actions in this respect were outrageous and manifested overinvolvement by the police.

In Commonwealth v. Mathews, 347 Pa.Super. 320, 500 A.2d 853 (1985), we held that “[ejven where entrapment is not proved, police involvement in criminal activity may be so outrageous that a prosecution will be barred on due process grounds.” Id., 347 Pa.Superior Ct. at 321, 500 A.2d at 854. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). The appellees in Mathews were arrested for the manufacture of methamphetamine. Upon being found guilty of attempt to manufacture a controlled substance, the trial court, on post-verdict motions, arrested judgment on grounds that the police conduct was so outrageous that the appellees were denied due process. We affirmed.

The record in that case showed that the police provided the appellees with money so that they could rent the residence where they were arrested. Appellees were also supplied with the money and the means by which the chemicals needed for the manufacture of methamphetamine could be purchased. Likewise, the police assisted in physically bringing equipment to the residence in which the appellees attempted to concoct the controlled substance. Furthermore, due to the appellees’ ineptitude in manufacturing the controlled substance, an Allegheny County criminalist and chemist’s services were utilized to render step-by-step instructions in mixing the formula. In the end, the fruit of these efforts amounted to a brown sludge containing methamphetamine. Id., 347 Pa.Superior Ct. at 325-328, 500 A.2d at 855-857.

It was apparent from the record that the appellees were unable to commit the crime despite the police’s overwhelming efforts to teach them how to accomplish their goal. The trial court astutely observed that “[t]he police not only set the stage for the criminal act but also were principal players thereon without which Defendants could not have acted. Slip op. of tr. ct. at 8-9.” Id. at 500 A.2d at 857. Clearly, the facts in Mathews illustrated outrageous conduct on part of the police so as to bar prosecution on due process grounds.

We are unconvinced that Detective Craig’s conduct in the instant matter violated “ ‘fundamental fairness, shocking to the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment.” United States v. Russell, supra, at 411 U.S. 432, 93 S.Ct. at 1643, quoting, Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960). Appellant argues that Detective Craig became overinvolved when he permitted Appellant to retain part of the heroin which Appellant had secured for him. However, we cannot find on that fact alone that the investigative techniques used by Detective Craig manifested outrageous behavior.

Unlike the circumstances present in Mathews, Detective Craig did not take an overly active role in Appellant’s commission of the crimes charged. There is no evidence that Appellant was issued step-by-step instructions amounting to sophisticated puppetry on Detective Craig’s part. To the contrary, the record is replete with testimony that Appellant issued the terms by which Detective Craig would receive the bundles of heroin. That Detective Craig permitted Appellant to retain a portion of the acquired heroin as a commission for his services does not evoke a finding of overinvolvement. Detective Craig testified that Appellant’s decision to skim a few balloons from the bundle as a “copping” fee was done normally in that course of business (N.T., 6/18/86, 72-73). Detective Craig also related that it was not a practical option to arrest Appellant at the time he took out his payment insofar as it would jeopardize the entire investigation and threaten the welfare of his confidential informant (N.T., 6/18/86, 101). The record simply does not support Appellant’s position that Detective Craig purposely allowed him to retain a portion of the heroin as an inducement for the deliveries. Viewed in this light, we find nothing in Detective Craig’s action with respect to the retained heroin which would indicate an egregious violation of due process concepts of fundamental fairness.

Appellant further argues that Detective Craig’s conduct evinced entrapment as a matter of law. The present test for entrapment in this Commonwealth is found at 18 Pa.C. S.A. § 313:

(a) General rule. — A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:

(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or

(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.

By writing this statute, our legislature renounced a previously utilized “subjective” standard in analyzing entrapment claims which focused upon the predisposition of the accused to commit the crime charged. Section 313 instead reflects the adoption of an “objective” standard which centers on the tactics and conduct of the police. Thus, “the test for determining whether an accused was entrapped was whether the conduct of the police offended the factfinders’ sense of justice.” Commonwealth v. Clapps, 355 Pa.Super. 80, 89, 512 A.2d 1219, 1224 (1986).

We note that the determination of whether or not police conduct amounts to entrapment is a jury question, unless the evidence clearly establishes entrapment as a matter of law. Id., 355 Pa.Superior Ct. at 90, 512 A.2d at 1225. Instantly, we disagree with Appellant’s assertion that Detective Craig’s tactics constituted entrapment as a matter of law. In Commonwealth v. Stokes, 264 Pa.Super. 515, 400 A.2d 204 (1979), we considered the appellant’s entrapment claim under similar circumstances. The evidence in that case disclosed that the appellant was approached by an undercover detective who asked the appellant to sell him a quantity of heroin. On appeal, we determined that the police conduct, viewed objectively, did no more than provide the appellant with the opportunity to sell some heroin:

[t]he undercover agent in the instant case merely provided a market if appellant wished to sell. He let it be known that he was interested in buying heroin, but he did not importune appellant in any way.

Id., 264 Pa.Superior Ct. at 518, 400 A.2d at 206.

In the case at bar, Detective Craig approached Appellant and asked him to obtain heroin for him. Appellant readily accepted the proposition on five separate occasions without Detective Craig’s insistence. It is quite evident from the record before us that Detective Craig’s conduct was in no way calculated to induce an innocent person to deal with heroin. Therefore, we find that entrapment did not exist as a matter of law. Furthermore, there is sufficient evidence in the record to support the jury’s determination that Appellant was not entrapped into procuring the heroin.

Next, Appellant contends that he was denied a fair trial insofar as the trial court refused to order disclosure of Detective Craig’s informant at both the pre-trial and trial stages of Appellant’s case. Appellant states that he sought the identity and location of the information so that it could be determined whether or not the informant would corroborate Appellant’s testimony.

In Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967) our Supreme Court recognized a qualified privilege with respect to the disclosure of confidential informants. This privilege allows the Commonwealth “to refrain from disclosing the identity of an informer” and “limits the prosecution’s duty to make available to the defense the names and whereabouts of all material eyewitnesses.” Id. at 233 A.2d at 285. Before disclosure of an informant’s identity is required, the proponent for disclosure must make more than a mere assertion that the identity of an informant might be helpful to the defense. Although exact predictions of what the informant might say cannot be expected, a reasonable possibility that the informant could give testimony that would tend to exonerate the defendant must be suggested. Commonwealth v. Fleck, 324 Pa.Super. 227, 235, 471 A.2d 547, 550 (1984). Of fundamental concern in these matters is fairness. “The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Commonwealth v. Speaks, 351 Pa.Super. 149, 505 A.2d 310, 315 (1986), quoting Roviaro v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 627-28, 1 L.Ed.2d 639 (1957).

We have reviewed the allegations contained in Appellant’s brief on this issue. We conclude that the statements contained therein amount to little more than a bald assertion that the identity and location of Detective Craig’s informant might be helpful to his defense. As expressed, supra, we cannot expect Appellant to present specific testimony concerning information that the informant could possibly divulge. Nonetheless, Appellant merely argues that the informant should have been made available to him because the informant could have corroborated Appellant’s testimony. In what respect this could be accomplished is not expounded upon by Appellant.

Furthermore, the evidence adduced at trial does not suggest that the informant was able to bolster Appellant’s case. Detective Craig testified that the informant in this case was used as a tool of introduction so that he could become associated with Appellant (N.T., 6/18/86, 35-36). The evidence shows that the informant directed Detective Craig to Mr. Schillinger’s apartment and supplied him with Appellant’s phone number. Other than this, there is no indication from the record that the informant was apprised of the integral details of Detective Craig’s dealings with Appellant. Thus, we conclude that the trial court did not err in refusing Appellant’s motions to compel disclosure of the informant’s identity and locations.

As a corollary to this issue, Appellant urges that he was entitled to a “missing witness” instruction which would advise the jury that an adverse inference might be drawn from the Commonwealth’s failure to produce the informant as a witness. It is true that the missing witness rule provides that a negative inference may be drawn from the failure of a party to call a particular witness who was in that party’s control. However, an inference may not be drawn where there exists a satisfactory explanation as to why the party failed to call such a witness. Commonwealth v. Rohach, 344 Pa.Super. 229, 496 A.2d 768, 771-72 (1985). See Commonwealth v. Lahoud, 339 Pa.Super. 59, 488 A.2d 307 (1985); Commonwealth v. March, 308 Pa.Super. 343, 454 A.2d 567 (1982); Commonwealth v. Gibson, 245 Pa.Super. 103, 369 A.2d 314 (1976).

We conclude that the Commonwealth supplied the trial court with a satisfactory reason for not calling the informant to testify during trial. Namely, the informant’s identity was confidential. It is obvious that, had the informant been called as a witness to testify, the Commonwealth’s objective of protecting the informant’s anonymity would have been stymied. Accordingly, we find no merit in Appellant’s argument.

Appellant next asserts that the trial court erred in refusing certain points for charge. Preliminarily, we state our appellate standard of review. In assessing the charge of a trial court, we will review the charge as a whole. Commonwealth v. Sparks, 351 Pa.Super. 320, 328, 505 A.2d 1002, 1006 (1986). It is the general effect of the charge that controls; error will not be predicated upon an isolated excerpt of the trial court’s charge. Commonwealth v. Wallace, 347 Pa.Super. 248, 500 A.2d 816, 820 (1985).

Appellant claims that the trial court erred in refusing to charge the jury that Pennsylvania public policy is violated if the police permit a person to retain possession of heroin for any purpose. Appellant also contends that the trial court should have charged the jury that if it were determined that “permitting the defendant to retain heroin ... is not materially different from directly giving heroin to a defendant, then [the jury] must find the defendant not guilty.”

These instructions relate to Appellant’s defense of entrapment. Upon review of the instructions given to the jury on the entrapment issue, we find that the charge adequately apprised the factfinders of the nature of this defense. Moreover, we cannot agree that Appellant’s proffered jury charges would have been appropriate. In essence, these charges would have mandated a finding of entrapment if certain circumstances were found to exist by the jury. However, we must remind Appellant that entrapment is a factual finding to be rendered by the jury, unless entrapment as a matter law is found by the trial court. See Commonwealth v. Clapps, supra, 855 Pa.Superior Ct. at 91, 512 A.2d at 1225. We find that Appellant’s instructions would have introduced theories of entrapment to the jury which simply have no basis in law, and which would have usurped the jury’s factfinding function. Therefore, Appellant’s jury instructions were properly denied.

On the same topic, Appellant alleges that the trial court should have instructed the jury that the Commonwealth had the burden of presenting a case free from entrapment once Appellant introduced evidence of entrapment. We disagree. An instruction to that effect would have misrepresented the status of the law in this area. It is well-settled that entrapment is a defense which is available to a defendant who admits to at least “some” of the elements charged. Commonwealth v. McGuire, 339 Pa.Super. 320, 334, 488 A.2d 1144, 1151 (1985). Moreover, our legislature has adamantly placed the burden of proof on the defendant once the requisite admissions are made:

(b) Burden of proof. — Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment.

18 Pa.C.S.A. § 313(b). Appellant’s jury charge that places the burden of proof on the Commonwealth after evidence of entrapment is presented completely ignores § 313(b)’s provisions which clearly state that a defendant must demonstrate entrapment by a preponderance of the evidence. Accordingly, Appellant's argument must fail.

Appellant’s next contention is that he was denied a fair trial because he was not allowed an individual voir dire. The purpose of the voir dire system is to ensure that the jury is comprised of fair, competent, impartial, and unprejudiced individuals. Commonwealth v. Merrick, 338 Pa.Super. 495, 500, 488 A.2d 1, 3 (1985). To this end, Pa.R. Crim.P. 1106(e) vests the trial judge, in non-capital cases, with discretion in choosing whether potential jurors will be questioned collectively or individually. Commonwealth v. Hathaway, 347 Pa.Super. 134, 144-145, 500 A.2d 443, 448 (1985) .

Appellant makes the bald assertion that it was imperative that he was given the opportunity to interrogate the prospective jurors individually with regard to their attitudes on the distribution of all drugs, particularly heroin. However, other than lodging this accusation, Appellant does not state in either specific or general terms how this refusal by the trial court prejudiced him. It is not the function of this Court to consider, and respond to, vacuous claims. “When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof.” Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 150 (1982).

Closely related to the previous issue is Appellant’s contention that he was denied a fair trial because the trial court refused to allow certain questions proposed for prospective jurors. Appellant refers to submitted voir dire questions which were geared towards probing the venirepersons’ attitudes on the subject of drugs.

The scope of voir dire examination rests within the sound discretion of the trial judge, whose ruling shall not be reversed absent a gross abuse of discretion. Commonwealth v. Lark, 350 Pa.Super. 558, 565, 504 A.2d 1291, 1295 (1986) . Appellant’s seventh voir dire question stated:

[t]he defense in this case is that the police became so overinvolved by taking advantage of defendant’s addiction to heroin that their use of him to obtain heroin and their allowing him to retain some of the heroin is contrary to the law and public policy in this Commonwealth. Do you have any preconceived ideas on this subject that would prevent you from giving the accused a fair trial?

We agree with the trial court’s decision to disallow this question. In Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318, (1983), our Supreme Court commented:

[n]either counsel for the defendant nor for the Commonwealth should be permitted to ... ask direct or hypothetical questions designed to disclose what a juror’s present impression or opinion may be or what his attitude or decision will likely be under certain facts which may be developed in the trial of the case.

Id., 500 Pa. at 589, 459 A.2d at 320, quoting Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467, 470 (1953). It is quite apparent that Appellant’s seventh question would apprise the venirepersons of the case he wished to have developed during trial. The question, in turn, was then calculated to gain an insight into the examinees’ impressions or preconceptions of the particular facts contained in Appellant’s scenario. Undeniably, such a question falls outside of the gamut of permissible questions for voir dire purposes. The inquiry should be strictly confined to disclosing the prospective jurors’ ability to render a fair and impartial verdict and whether the jurors have formed a fixed opinion as to the accused’s guilt or innocence. Id., 500 Pa. at 589-590, 459 A.2d at 320-321. Appellant’s proffered question clearly was designed to probe deeper than the venirepersons’ qualifications to become jurors.

Appellant argues that question eight of his proposed voir dire questions should have been permitted by the trial court. The eighth question asked whether the subjects of possession and distribution of heroin disturbed the venirepersons to the point that a fair and objective decision could not be rendered. We note that this question is almost identical to question three, which advised the potential jurors that Appellant had been a heroin addict, and asked whether this fact would prevent them from being impartial factfinders. Insofar as both questions cover the same topic, namely, the venirepersons’ attitudes toward the use of heroin, we are unconvinced that Appellant was prejudiced by the trial court’s refusal to permit question eight.

The final questions which Appellant argues should have been included during voir dire are:

9. Are you or is any member of your family or close friend employed, directly or indirectly, in a health profession?; and,

10. If the answer to the previous question is in the affirmative, have you or has any member of your family or close friend been involved in treating or caring for alcoholics, other drug abusers, or have you been engaged in work relating to their rehabilitation?

We cannot agree with Appellant’s position that the trial court erred in refusing these questions. The nature of these questions would have been irrelevant to the facts of the case. Moreover, Appellant has not demonstrated how they related to the prospective juror’s ability to render a fair and impartial verdict. Simply stated, the questions were irrelevant to the legitimate purposes of voir dire and were properly disallowed by the trial court. Commonwealth v. Drew, 500 Pa. at 590, 459 A.2d at 321.

The final segment of Appellant’s argument deals with certain evidentiary rulings made by the trial court. The admission and exclusion of evidence is a matter vested within the trial court’s discretion. “An abuse of that discretion may be found if it appears that a trial judge admitted irrelevant evidence that was prejudicial to the accused or evidence the probative value of which was outweighed by its prejudicial impact or its tendency to suggest decision on an improper basis.” Commonwealth v. Shain, 324 Pa.Super. 456, 462, 471 A.2d 1246, 1248-49 (1984).

In the instant matter, Appellant complains that the trial court abused its discretion in permitting the Commonwealth to question Appellant concerning his heroin source. The record shows that, at side bar, it was indicated that Appellant would not reveal this information. During his testimony, the Commonwealth requested that Appellant name his heroin supplier. However, Appellant responded that he would not divulge the source’s identity since he feared for his, and his family’s, physical safety (N.T., 6/18/86, 163). Appellant now argues that this question was not relevant, competent, or material to the issues involved in the case. Appellant further posits that this question generated a prejudicial atmosphere by placing him in an unfavorable light in the presence of the jury since he refused to reveal the heroin source. We disagree.

The Commonwealth appropriately points out that this question was relevant to the case at bar, given the fact that Appellant pursued an entrapment defense. “Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue or when it in some degree advances the inquiry and thus has probative value.” Commonwealth v. Shain, supra, 324 Pa.Superior Ct. at 462-463, 471 A.2d at 1249. One of the prominent issues discussed during trial was whether Detective Craig’s conduct induced a person, otherwise not ready to commit the offense, to engage in criminal conduct. We are of the opinion that the question concerning the heroin supplier advanced the inquiry with respect to Detective Craig’s conduct, as viewed in light of the factual circumstances of the case. Likewise, we cannot accept Appellant’s contention that he was prejudiced in any way by the Commonwealth’s question.

Appellant asserts that the trial judge erred by permitting Detective Craig to testify concerning the number of times he had seen heroin packaged for street delivery. Appellant suggests that this testimony inflamed the jury’s perception of drug trafficking in Pittsburgh. We have reviewed this testimony and find Appellant’s argument to be completely unfounded.

Further, Appellant challenges the testimony which allowed inquiry concerning Detective Craig’s motives for the repeated transactions with Appellant. Appellant states that these statements were not relevant. It is clear that this testimony was relevant to the issue of entrapment insofar as it revealed that Detective Craig pursued the drug dealings so that Appellant’s heroin source would ultimately be divulged. Thus, this argument, too, must fail.

Finally, Appellant raises allegations that the trial court unduly restricted defense counsel’s cross-examination of Detective Craig. Appellant states that cross-examination concerning the identity and location of the confidential informant was erroneously denied by the trial judge. We have already discussed the substance of this issue, supra, and decline to repeat that analysis. Appellant also claims that defense counsel was prohibited from questioning Detective Craig on police policy with respect to undercover drug purchases. Upon reviewing this segment of the testimony, we find that the only restrictions placed on counsel-for-Appellant’s cross-examination of Detective Craig resulted from defense counsel’s determination to repeat questions which had been already answered by the witness. In fact, the record reveals that the trial court, over the Commonwealth’s objection, even permitted defense counsel to repeat a question concerning police policy to which Detective Craig had previously responded (N.T., 6/18/86, 82-86). Accordingly, we find no abuse of discretion.

The judgment of sentence is affirmed.

      . Detective Craig explained during trial that the term “bundle” was a common expression describing a number of balloons of heroin which varies between 15 to 17 balloons (N.T., 6/18/86, 23).

      . By his dissenting opinion in Mathews, supra, our esteemed colleague, Judge Wieand, has collected case law from various jurisdictions in which police conduct was not found to be in violation of due process. Id., 347 Pa.Superior Ct. at 329-330, 500 A.2d at 858.

      . We caution Appellant that he has failed to point to the specific portions of the notes of testimony which would substantiate this charge. See Pa.R.A.P. 2119(c).


author: POPOVICH, Judge:

text:
    538 A.2d 43
    COMMONWEALTH of Pennsylvania v. James HALL, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1987.
    Filed Feb. 8, 1988.

      Jack E. Reagle, Public Defender, Coudersport, for appellant.
    Martha J. Duvall, Assistant District Attorney, Coudersport, for Com.
    Before WIEAND, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Potter County denying an omnibus pre-trial motion to dismiss by the appellant, James Hall. We affirm.

A review of the record discloses the following relevant facts: On February 10, 1986, the appellant was arrested for receiving stolen property, unlawful sale of firearms and unlawful loan on, lending or giving firearms. At the magistrate’s hearing, two witnesses testified to the appellant selling them various rifles and guns. Also, a third witness (Richard Nelson) identified the items sold as having been stolen from his camp in Potter County. With the evidence presented, the magistrate concluded that a prima facie case against the appellant had been presented and bound the matter over to Common Pleas Court.

On May 5, 1986, the appellant pleaded guilty to unlawful sale of firearms. The other offenses were nol prossed by the Commonwealth. On June 5, 1986, the appellant was sentenced to a term of 1-6 months imprisonment, payment of a fine of $150 and 9 months probation. Upon completion of his sentence and term of probation, it appears that the appellant, while in a tavern, spoke to Nelson and admitted to removing the weapons from his camp site. Further, the appellant allegedly told Nelson that he could not be prosecuted for burglary since he had already served time for the weapon’s offense and, thus, could not be re-charged again. Nonetheless, on February 6, 1987, the appellant was arrested and charged with burglary, theft and two counts of conspiracy.

Nelson testified at a preliminary hearing to what the appellant had admitted to him at the tavern. As a consequence, the burglary, theft and conspiracy charges were held for court. This, in turn, was followed by the submission of an omnibus pretrial motion (similar to the pro se one presented by the appellant at the preliminary hearing) seeking a dismissal of the charges as violative of the Double Jeopardy clause of the United States Constitution and 18 Pa.C.S. §§ 109, 110. Additionally, a memorandum of law was attached to the motion buttressing the Double Jeopardy and § 110 contentions that since the 1986 and 1987 charges “both ar[o]s[e] out of the same criminal conduct or episode all of the required elements for finding a violation [of the Double Jeopardy clause and § 110] ha[d] been met.”

Thereafter, a rule to show cause was issued, briefs were submitted, argument was heard and a ruling entered denying the motion to dismiss. This appeal ensued.

It is the appellant’s contention on appeal that, because the present (1987) prosecution arose out of the same transaction for which he had been tried, convicted and sentenced (in 1986), the principles of collateral estoppel, double jeopardy and § 110 warrant a dismissal of the charges.

More precisely, as is evident from his oral argument below and his brief to us, counsel for the appellant is of the mind that mere “knowledge” on the part of the police that a burglary had occurred at the Nelson’s camp site in 1986 necessitated that the appellant be charged at that time with such an offense in conjunction with the others initially lodged against him. Failure to do so, counsel would have us believe, brings this ease within the prohibition of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973) and § 110 barring a subsequent prosecution because “such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial[.]” 18 Pa.C.S. § 110(l)(ii). The fact that the police may not have had sufficient evidence to either arrest or convict the appellant is of no moment. Rather, “knowledge” on the part of the police of the burglary, when viewed in conjunction with the weapon offenses brought against the appellant, renders this second prosecution as one “arising out of the same episode” as the former prosecution and, therefore, is prohibited, so argues counsel for the appellant. We disagree.

Initially, we will examine the claim of the appellant that his right to be free from being twice placed in jeopardy has been contravened by his arrest, and potential prosecution to follow, for burglary, theft and conspiracy associated with the Nelson camp site incident.

It is uncontroverted that the Double Jeopardy clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” In applying the Double Jeopardy clause, it has long been understood that separate statutory crimes need not be identical — either in constituent elements or in actual proof — in order to be the same within the meaning of the constitutional prohibition. See Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Thus, the principal question in this portion of the case is whether the unlawful sale of firearm offense, to which the appellant pleaded guilty in 1986, can be construed, for double jeopardy purposes, to be the “same offense” as either burglary, theft or conspiracy so as to preclude the latter’s presentment in court.

The established test for determining whether offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. Unit ed States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.2d 306 (1932):

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not____

It has been stated that if the offenses under scrutiny are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nielsen, 131 U.S. 176, 187-88, 9 S.Ct. 672, 675-76, 33 L.Ed. 118 (1889); cf. Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911). Thus, unless “ ‘each statute requires proof of an additional fact which the other does not/ ... the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment.” Brown v. Ohio, supra, 432 U.S. at 166, 97 S.Ct. at 2226 (Footnote omitted; citation omitted).

Applying the Blockburger test, we find that the offense of unlawful sale of firearms necessitates proof that the seller did not have an application executed by the buyer and forwarded to the appropriate authorities, with retention of the same kept on file by the seller for six years. Such a requirement could be dispensed with if the sale were at wholesale. 18 Pa.C.S. § 6111. As for burglary, this occurs when an individual enters a building or other occupied structure with the intent to commit a crime therein. 18 Pa.C.S. § 3502(a). To prove one guilty of theft, it must be established that the property of another has been taken with the intent of depriving him thereof. 18 Pa.C.S. § 3921(a). Lastly, conspiracy requires proof that a person, with the intent of promoting or facilitating a crime, agrees with another that they or one or more of them will engage in conduct which constitutes such a crime. 18 Pa.C.S. § 903.

When the present charges of burglary, theft and conspiracy, with their attendant elements, are aligned with the firearm offense, it is beyond cavil that the facts necessary to establish a violation of the former are independent of those necessary to establish a violation of the latter. Ergo, under the Blockburger test, the appellant’s double jeopardy claim is found wanting.

The same result obtains with regard to the appellant’s collateral estoppel argument; to-wit, the repetition of proof required to activate the barring effect of the doctrine of collateral estoppel is absent since the second prosecution does not require the relitigation of factual issues already resolved by the first prosecution. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). For example, the issue of ultimate fact decided at the appellant’s 1986 guilty plea was that he sold weapons without having the purchasers complete certain required forms pri- or to their receipt of the merchandise.

Accordingly, we fail to discern how the appellant’s prosecution for burglary, theft and conspiracy will necessitate the relitigation of the fact that he sold weapons unlawfully in 1986. The two sets of charges require different elements of proof to sustain their violation. This is evident from a review of the elemental aspects of the unlawful sale of firearms with burglary, theft and conspiracy. As stated previously, proof of the former does not, ipso facto, establish a commission of the latter. Compare Commonwealth v. Peluso, 481 Pa. 641, 393 A.2d 344 (1978).

The fact that the police may not have had probable cause to arrest or sufficient evidence to convict the appellant in 1986 of the burglary charge has no impact, according to counsel for the appellant, upon the application of § 110’s prohibition of a subsequent prosecution where the offense sought to be tried was “known” to the authorities at the time a former prosecution arising from the same criminal episode took place.

In reply to the appellant’s argument, we begin by observing that the Fifth Amendment’s preclusion of successive prosecutions has a caveat, which the Brown v. Ohio, supra, Court stated in the following fashion, i.e.,

An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.

432 U.S. at 169 n. 7, 97 S.Ct. at 2227 n. 7 (Citation omitted).

As we read Brown, absent the “discovery” of evidence sufficient to sustain a conviction, despite the use of due diligence, a State will not be barred from bringing a subsequent prosecution on charges arising out of the same criminal episode forming the basis of a former prosecution.

The appellant would have us believe that the ruling in Commonwealth v. Peluso, supra, controls the result to be reached here, i.e., dismissal of the charges. We think otherwise.

In Peluso, our Supreme Court concluded that the Commonwealth was collaterally estopped from prosecuting the defendant a second time for receiving stolen property (two rifles taken in the burglary of a Ray Snyder’s residence). The Court did so because the ultimate fact that the appellant was not aware that a rifle taken in the Snyder burglary and linked to him was stolen, which, by the way, was the basis for a demurrer in a former prosecution, would have necessitated the relitigation of such a fact in the subsequent prosecution, and, thus, was barred by collateral estoppel.

The Peluso Court noted further that the securement of additional evidence from the defendant’s wife, which had not been available in the former prosecution, made no difference for collateral estoppel purposes in precluding the subsequent prosecution.

Albeit our Supreme Court, in deciding Peluso, reversed Superior Court’s initial affirmance of the second prosecution, it did so on the basis of collateral estoppel (a theorem which we have found inapplicable instantly), since a repetition of proof as to an ultimate issue of fact would have transpired in the subsequent prosecution. Thus, we believe the Supreme Court left intact our language in Peluso that:

We do not believe that Campana or § 110(l)(ii) of the Crimes Code requires a prosecutor to charge an accused with an offense at a time when the prosecutor only suspects that the offense has been committed and has not uncovered any admissible evidence by a good faith investigation which would support a conviction for that offense.

240 Pa.Super. 330, 336, 361 A.2d 852, 856 (1976), rev'd on other grounds 481 Pa. 641, 393 A.2d 344 (1978). This is borne out by the denial of a petition for allowance of appeal by our Supreme Court of Commonwealth v. Miller, 278 Pa.Super. 103, 419 A.2d 1378 (1980).

In Miller, a residence was burglarized and a police radio scanner and a stereo console were two of the items taken. On the strength of a Mr. Porterfield’s statements implicating the defendant, the accused was charged with the theft of the police scanner only. However, at trial Porterfield recanted his earlier accounting and instead maintained that he and the defendant participated in a different burglary of the same residence, during which they took the stereo console. This was the first time the Commonwealth had knowledge of the defendant’s involvement in the theft of the stereo console.

When the Commonwealth, because of the turn of events, sought to dismiss the indictment charging the defendant with theft of the police scanner, the trial court refused and entered a directed verdict in the defendant’s favor. The Commonwealth then filed a complaint charging the defendant with theft and conspiracy stemming from the removal of the stereo from the residence in question. The defendant’s efforts to have the charges dismissed on grounds of double jeopardy proved fruitless. On appeal to this Court, the defendant urged that the officers had knowledge of his involvement in the theft of the stereo at the time he was indicted on the former charge of theft of the police scanner.

In refusing the defendant’s request to dismiss the charge, this Court found that § 110(l)(ii)’s language barring subsequent prosecutions where they are “based on the same criminal conduct or arise from the same criminal episode” did not apply because the two thefts of the same residence were temporally separated by a period of at least six hours. Therefore, the “same criminal episode” test of Campana and § 110 did not apply.

Moreover, in affirming the lower court’s denial of defendant’s motion to dismiss, we made remarks germane to the case at bar; namely:

We note, additionally, that despite its diligent investigation, the Commonwealth initially was unaware of appellant’s participation in the theft of the Kettering’s stereo. It was only when Mark Porterfield altered his previous account of the theft that the authorities had a basis for charging appellant in connection with the stereo. In the case of Commonwealth v. Peluso, 240 Pa.Super. 330, 361 A.2d 852 (1976), seven rifles were stolen from one victim. At the time the first indictment was filed in that case, the police only suspected the defendant of being in possession of one specific rifle, but following defendant’s acquittal on that charge, information was gained implicating him in the possession of two other rifles. The defendant was charged accordingly. In upholding the validity of the second prosecution, we stated:

“We do not believe that Campana or § 110(l)(ii) of the Crimes Code requires a prosecutor to charge an accused with an offense at a time when the prosecutor only suspects that the offense has been committed and has not uncovered any admissible evidence by a good faith investigation which would support a conviction for that offense.” Id., 240 Pa.Superior Ct. at 336, 361 A.2d at 856.

See also Commonwealth v. Norman, 262 Pa.Super. 45, 396 A.2d 476 (1978); Commonwealth v. Thorton, 247 Pa.Super. 94, 371 A.2d 1343 (1977).

Instantly, because at the time of the first prosecution the Commonwealth was not in possession of information connecting appellant with the stereo theft, neither section 110(l)(i) nor (ii) would preclude the Commonwealth from instituting a second prosecution. We hold, therefore, that the trial court did not err in denying appellant’s motion to quash the second indictment.

278 Pa.Super. at 108, 419 A.2d at 1380-81.

Instantly, as in Miller, at the time the initial charge was brought against the appellant, the police were unaware that the accused had participated in additional crimes on the premises burglarized. In both cases, it was not until information surfaced, which was previously undiscoverable to police, (in Miller the key witness inculpated the defendant; at bar, the appellant made incriminating statements to the victim who relayed them to the police) that the subsequent charges were instituted.

To quote the assistant district attorney’s remarks at oral argument before the lower court, which we find captures the essence of the Miller case,

Certainly there was evidence that someone had broken into Mr. Nelson’s camp, that a door had been kicked in or whatever, and there was nothing other than that, no evidence at the scene to point to who committed the crime. There was evidence that Mr. Hall was in possession of some weapons stolen from that camp, or acquired somehow from the camp, and there was evidence that he sold a weapon or two weapons to a third party.

Thus, the police were not obligated to bring charges against the appellant where they had failed to uncover “ ‘admissible evidence ... which would support a conviction for that offense.’ ” 278 Pa.Super. at 33, 419 A.2d at 1381 (Citation omitted); see also Brown v. Ohio, supra; Commonwealth v. Davies, 342 Pa.Super. 316, 492 A.2d 1139 (1985); Com monwealth v. Kysor, 334 Pa.Super. 89, 482 A.2d 1095 (1984).

Consequently, we hold that the police’s lack of sufficient evidence justifying the arrest and/or conviction of the appellant for burglary, theft and conspiracy in 1986 does not bring the present prosecution for such offenses within the prohibition of § 110(l)(ii), nor is “knowledge” on the part of the police of the commission of a burglary in 1986 the equivalent of the quantum of evidence necessary to support a conviction for such a charge so as to activate the barring effect of § 110.

As a result, finding that the appellant’s claims are merit-less, we will affirm the order of the court below denying the appellant’s motion to dismiss.

Order affirmed.

MONTEMURO, J., concurs in the result.

      . Albeit it is correct that a pre-trial order denying a motion to dismiss an indictment or information on double jeopardy grounds lacks the finality traditionally considered indispensable to appellate review, the United States Supreme Court has concluded that such orders fall within the "small class of cases" that Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.2d 1528 (1949) has placed beyond the confines of the final-judgment rule. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). This is so since (1) the order is a final rejection of a criminal defendant's double jeopardy claim, (2) the double jeopardy claim is collateral to, and separable from, the principal issue at the accused’s pending trial, i.e., whether or not the accused is guilty of the offense charged, and (3) the rights conferred by the Double Jeopardy clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. Id.
      Since Cohen is followed in this jurisdiction, see Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), we see no reason for not adhering to its rationale and taking jurisdiction of the present appeal. See generally Commonwealth v. Davies, 342 Pa.Super. 318, 492 A.2d 1139 (1985).

      . The relevant portion of § 110 reads:
      Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
      (1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
      ******
      (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense ____
      The Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 110(l)(ii).

      . See Commonwealth v. Peluso, 240 Pa.Super. 330, 361 A.2d 852 (1976), rev’d 481 Pa. 641, 393 A.2d 344 (1978).


author: TAMILIA, Judge:

text:
    538 A.2d 49
    Scott B. SCHULMAN, Appellant, v. FRANKLIN AND MARSHALL COLLEGE.
    Superior Court of Pennsylvania.
    Argued Sept. 16, 1987.
    Filed Feb. 22, 1988.

      James H. Thomas, Lancaster, for appellant.
    David R. Keller, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, DEL SOLE, MONTEMURO, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   TAMILIA, Judge:

This appeal calls to mind two relevant quotations by noted authors. The first, “Life is My College, May I Graduate Well, and Earn Some Honors”, was penned by Louisa May Alcott. The second, “A University Should be a Place of Light, of Liberty and of Learning”, is by Disraeli. Appellant Scott Schulman apparently heard of neither.

Plaintiff/appellant Scott Schulman filed a complaint in equity requesting preliminary injunctive relief from a one-year suspension from attendance at Franklin and Marshall College. At the time of the suspension, appellant was a sophomore and the suspension was for a portion of the spring 1986 and the entire fall 1986 semesters with the suspension to be noted in his transcript as required by the sanctions outlined in the College Student Code.

Pursuant to the Student Code, appellant was found guilty by the Committee on Student Conduct for violating various sections of the Code in that he was guilty of misconduct involving fellow female students. These instances of misconduct included harassing female students and making lewd and lascivious comments about their dress, body and behavior; locking two female residents out of their rooms while he was in the room going through the lingerie drawers of both women and exchanging the contents of both drawers; placing a condom on the door of a female student; loitering near the women’s bathroom, sometimes “falling into” the women’s shower room while women were trying to bathe and following women into the bathroom; setting fire to a pair of men’s underwear that was attached to the doors of two female students; pushing a female student against her will onto a bed and attempting to pull up her nightgown in front of his roommate; grabbing a female student by the breasts several times against her will; and verbally harassing two female students on numerous occasions. Following the hearings on these charges and the finding of guilt, appellant took an appeal to the Dean of Students who affirmed the decision of the Committee. Thereafter, the appellant was permitted to remain in school pending appeal with the stipulation that he was to stay out of the student dining room and was to avoid any contact with the female students.

Appellant violated the conditions of this stay of implementation of the suspension and, thereupon, the suspension was put into effect. The appellant then filed an appeal with the College President which was denied by letter dated April 16, 1986. Following that action, appellant filed a complaint for a preliminary injunction in equity and a motion for a special preliminary injunction in the Court of Common Pleas of Lancaster County on April 17, 1986. Pursuant to these petitions, a hearing was held before the Honorable Ronald L. Buckwalter, in which testimony was taken from the Dean of Students, Career Counselor, Associate Dean of Students, Chaplain of the college, appellant’s mother and the appellant. Following the hearing, the trial court denied the preliminary injunction, which required the appellant to go forward with the full trial on the merits to obtain the relief he sought.

Pursuant to Pa.R.A.P. 311(a)(4), an appeal from the denial of the preliminary injunction was properly taken to this Court which, after oral argument, reversed the trial court and invoked the preliminary injunction, remanding for proceedings in accordance with the Opinion filed. Judge Donald Wieand of this Court dissented.

Upon the filing of the Opinion and Order of the panel, a petition for reargument was filed by the appellee which was granted by a majority of the court. Following a hearing before the Court en banc, we determine the Order of the trial court must be affirmed.

The single issue in this case is whether irreparable harm was caused by the denial of the preliminary injunction and the imposition of the sanctions prior to a full hearing on the merits. The trial court found, while there might be some question about the severity of the punishment, there is no question that the harm was not irreparable and could await a full hearing on the merits. We agree with the finding of the trial court.

While the appellant stated seven issues on appeal, they can be reduced in substance to four in number: first, whether the trial court erred in denying appellant’s request for a preliminary injunction because the appellant will suffer irreparable harm if a preliminary injunction is not issued; second, whether the procedure employed by appellee failed to afford appellant an opportunity to be heard at a meaningful time in a meaningful manner, and in doing so failed to follow the procedure outlined in the college handbook; third, whether the appellant’s rights were violated by allowing an advocate to appear on behalf of the complaining witnesses; and fourth, whether the trial court improperly employed the doctrine of unclean hands.

We have reviewed the record, and in regard to issues two, three and four, find they are without substantial merit and have been properly resolved by the trial court. In the case of issue four, the unclean hands doctrine, the finding by the trial court, although questionable, is irrelevant to a determination of this case. The appellant would have us review, in particular, the proceedings of the court below and of the student committee, the dean and the president in determining whether a preliminary injunction should have been issued. As was found by the trial court and both the panel majority and dissenting Opinions of this Court, proceedings relating to the suspension determination appear to be in conformity with the student handbook and adequate hearings were held with the appeal process being fully complied with to support the suspension. While, for our purposes, we find such a process to be adequate, since it goes to the merits of the issues as to whether or not there was sufficient evidence obtained in a proper manner so as to be credible, those issues are more relevant to an appeal on the merits which we may not pursue at this time. Since there appears to have been no denial of due process, and the suspension appears to have been imposed in a proper manner, our sole concern at this time is whether irreparable harm was created by failure to enjoin suspension pending a hearing on the merits. As to that issue, as the original panel majority stated in its Opinion, for appellant to prevail he was obliged to persuade the Chancellor that the equities weighed in his favor, that he had a high degree of probability of success on the merits and that he would suffer irreparable harm if the preliminary injunction were not granted. This, we understand, is a heavy burden of proof. Cohen v. Pelagatti, 342 Pa.Super. 626, 493 A.2d 767 (1985). In addition, it is unlikely the injury in the case could be adequately compensated by an award of damages. Cosner v. United Penn Bank, 358 Pa.Super. 484, 517 A.2d 1337 (1986). The panel majority, as support for its position that the preliminary injunction should have been granted and irreparable harm would result if it were not, cited Unionville-Chadds Ford School District v. Rotteveel, 87 Pa. Commw. 334, 487 A.2d 109 (1985) in which the Court affirmed the Order granting a preliminary injunction in favor of a minor appellee who sought to compel a school district to provide him transportation to kindergarten under the relevant provision of the Public School Code because:

had the requested order not been granted, the minor appellee likely would not have been able to attend kindergarten that year, [and] we believe that the trial court did not abuse its discretion in ruling that the appellees’ right to relief was clear, that their need for relief was immediate and that their injury would be irreparable.

Id. at 340-341, 487 A.2d at 113.

This and other cases cited by the panel majority are not on point. The child who is denied transportation to kindergarten will never regain the year lost and the benefits of that education, and the determination by the trial court and the Commonwealth Court was that the child was very likely to prevail on the merits. In this case, the student at Franklin and Marshall College will have a delay in his educational process but will not lose the opportunity, by virtue of a suspension, to complete his college training (being wiser in the process) and it is very likely that on review of the case on the merits, the appellant will not prevail.

The crux of appellant’s contention, that irreparable harm will result, is that a notation will appear on the transcript which, according to vocational counsellors brought in as expert witnesses, would interfere with his future in obtaining employment and progressing in his chosen career. This argument is premature. For harm to be irreparable, it must be irreversible. The time lost by the student during class has already been lost and can never be regained. The relief for such time lost, if on the merits the appellant should prevail, would be money damages. As to the notation of the suspension on the transcript, that is not irreversible and the harm foretold by the appellant will not occur unless, in fact, the case is sustained on the merits. Should the appellee be reversed in its application of sanctions, it will be directed by court Order to remove any reference to the sanctions from the transcript and the harm predicted will not occur. Should the appellee prevail, a notation will appear on the transcript; this is a permissible sanction and appellant cannot claim relief from sanctions brought about by his own behavior.

The error of the panel majority in this case was to overemphasize the availability of other alternatives to the sanctions imposed and to other procedures than those employed by the school officials. It appears these sanctions are not subject to review at this time so long as they were directed in compliance with the fundamentals of due process. The student screening committee passed judgment on the appellant and spoke for the student body. As the control to overreaction by the student body, review by the Dean of Students and the President of the College was available and utilized to avoid unfairness and excess.

The courts have been very reluctant to interfere with college proceedings concerning internal discipline. A college is a unique institution which, to the degree possible, must be self-governing and the courts should not become involved in that process unless the process has been found to be biased, prejudicial or lacking in due process. While many people would apply different standards than those applied by a given college, we must understand that colleges, by their composition, particularly private colleges, will reflect different standards and different attitudes and values concerning student misbehavior. A college is frequently selected by parents and students because of the special aura or quality of life on campus that distinguishes it from other institutions. Frequently, colleges are classified in the public mind and the media as liberal or conservative, religious or secular, party schools or intellectual bastions. From the days of the Medici’s, who created the colleges in Florence during the Renaissance, to modern times, colleges have been unique in their insulation from state taxation controls and their self-government.

In this case, particularly with the necessary concern on college campuses as to student activities in the sexual area and with the widespread notoriety and publicity relating to date-rape and the opportunity for students to take advantage of one another, perhaps fostered by the proximity of students to each other in the mixed dorm communities, the need of the college to protect its students is manifested by actions such as taken here. The trial court recognized the great discretion that reposes in the institution authorities to manage such conditions and the means employed to exercise such control, where reasonable, may not be subverted by the courts. It cannot be denied that college officials must protect the student body as well as assure that students charged with wrong-doing obtain fair treatment. Since the harm to appellant, as we have indicated, was not irreparable, there is no basis for a preliminary injunction to be issued.

To summarize the law in respect to these issues, we quote Judge Wieand’s dissent to the majority panel Opinion:

The law pertaining to the issuance of a preliminary injunction is clear. The application of the law frequently is more difficult.

A preliminary injunction is an extraordinary remedy available only where the party seeking it establishes that; 1) it is necessary to prevent immediate and irreparable harm not compensable in damages, 2) greater harm would result from denying it than from granting it, 3) the right to it is clear and 4) the status quo would be restored if it was granted.

Pennsylvania Interscholastic Athletic Association, Inc. v. Greater Johnstown School District, 76 Pa.Commw. 65, 71-72, 463 A.2d 1198, 1201 (1983), citing Valley Center, Inc. v. Parkhouse, 62 Pa.Commw. 453, 437 A.2d 74 (1981). See: Independent State Store Union v. Pennsylvania Liquor Control Board, 495 Pa. 145, 432 A.2d 1375 (1981); Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., 450 Pa. 367, 301 A.2d 816 (1973); Union-ville-Chadds Ford School District v. Rotteveel, 87 Pa. Commw. 334, 487 A.2d 109 (1985). As a general rule, “trial courts are afforded a broad discretion in the granting or refusal of a preliminary injunction after hearing and will be reversed only if such discretion is clearly abused or if the court committed a palpable legal error.” Commonwealth v. Schall, 6 Pa.Commw. 578, 581, 297 A.2d 190, 191 (1972). See: Unionville-Chadds Ford School District v. Rotteveel, supra; American College of Obstetricians & Gynecologists v. Thornburgh, 613 F.Supp. 656 (E.D.Pa.1985). Upon review, this Court must uphold the trial court’s determination if it can be sustained upon “any reasonable ground.” See: Independent State Store Union v. Pennsylvania Liquor Control Board, supra [495 Pa.] at 157, 432 A.2d at 1381; Credit Alliance Corp. v. Philadelphia Minit-Man Wash Corp., supra [450 Pa.] at 371, 301 A.2d at 818; Pennsylvania Interscholastic Athletic Association, Inc. v. Greater Johnstown School District, supra [76 Pa. Commw.] at 71, 463 A.2d at 1201.

This carefully stated review of the law needs no further elaboration. The Order of the trial court is hereby affirmed.

Order affirmed.

KELLY and POPOVICH, JJ., concur in the result.