author: HOFFMAN, Judge:

text:
    615 A.2d 442
    COMMONWEALTH of Pennsylvania v. Kenneth L. RITTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 20, 1992.
    Filed Oct. 28, 1992.

      Norman A. Levine, New Castle, for appellant.
    William M. Panella, Dist. Atty., New Castle, for Com., appellee.
    Before TAMILIA, HUDOCK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for one count of intimidation of witnesses, one count of terroristic threats, three counts of delivery of a controlled substance, and one count of conspiracy to commit delivery of a controlled substance. Appellant, Kenneth L. Ritter, presents the following claims:

I. Whether the trial court erred in failing to grant [appellant’s] motion objecting to the notice of consolidation and [appellant’s] motion to sever?
II. Whether the court erred in denying [appellant’s] motion for disposition in lieu of trial or criminal punishment?
III. Whether the court erred in failing to [follow appellant’s] proposed voir dire questions?
IV. Whether the inflammatory remarks made by the prosecutor in his opening statement prejudiced [appellant] and require that a new trial be granted?
V. Whether the court erred in granting the Commonwealth’s motion in limine requesting that testimony of a psychiatrist regarding [appellant’s] susceptibility to inducement and persuasion be prohibited?
VI. Whether the actions of the law enforcement officials and the informant amounted to entrapment as a matter of law which was not rebutted by the Commonwealth with sufficient evidence?
VII. Whether the jury’s verdicts were against the weight of the evidence?
VIII. Whether the Commonwealth failed to produce sufficient evidence to sustain the jury’s verdicts of guilty?
IX. Whether the court erred in not giving [appellant’s] proposed jury instructions?
X. Whether the prosecutor’s inflammatory remarks in closing prejudiced [appellant’s] case and warrant a new trial?

Appellant’s Brief at 27-28. For the reasons set forth below, we affirm.

On October 15, 1988, appellant was charged with three counts of possession with intent to deliver, three counts of delivery of a controlled substance, and one count of conspiracy to deliver a controlled substance. On October 17, 1988, as a result of appellant’s interactions with an undercover informant, appellant was further charged with one count each of intimidation of witnesses, terroristic threats, and conspiracy to commit terroristic threats and intimidation of witnesses.

On April 23, 1990, a jury convicted appellant of one count of intimidation of witnesses, one count of terroristic threats, three counts of delivery of a controlled substance, three counts of possession of a controlled substance and one count of conspiracy to deliver a controlled substance. Post-trial motions were filed and denied. On February 25, 1992, the trial court sentenced appellant to serve an aggregate term of imprisonment of nine-years-and-nine-months-to-nineteen-years-and-six-months.

I.

Appellant first contends that the trial court erred in failing to grant appellant’s pre-trial motion to sever the drug charges from the intimidation charges. We initially point out that the decision to sever trials “is one within the sound discretion of the trial judge and will not be disturbed on appeal absent a manifest abuse of that discretion.” Commonwealth v. Lindenmuth, 381 Pa.Super. 398, 409, 554 A.2d 62, 67 (1989), appeal denied, 522 Pa. 624, 564 A.2d 916 (1989) (citing Commonwealth v. Morales, 508 Pa. 51, 61, 494 A.2d 367, 372 (1985) (citations omitted)). Furthermore, this court .will not overturn a decision to consolidate charges absent a real potential for prejudice. Commonwealth v. Pirela, 398 Pa.Super. 76, 83, 580 A.2d 848, 852 (1990), appeal denied, 527 Pa. 672, 594 A.2d 658 (1991) (citation omitted).

Pa.R.Crim.P. 1127(A)(1)(a) provides:

Offenses charged in separate indictments or informations may be tried together if: ... the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion....

Id. We find that the offenses charged meet the requirements of Pa.R.Crim.P. 1127(A)(1)(a) and, therefore, the court did not abuse its discretion in consolidating the two sets of indictments for trial.

First, it is clear that the evidence of each of the crimes would have been admissible in a separate trial for the other. While generally inadmissible, evidence of other crimes is admissible when it is relevant to establish motive or intent. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988). Accordingly, evidence of the drug deliveries would be admissible in a separate trial on the charges of terroristic threats and intimidation of witnesses to show motivation for those threats.

Likewise, evidence of appellant’s threats would be admissible in a trial on the charges of drug delivery, despite the fact that the threats occurred after the drug deliveries. In Commonwealth v. Green, this court found that “[even though] evidence of subsequent offenses ... does not establish that a defendant possess the requisite intent prior to the commission of the crime being tried ... we nonetheless agree ... that the testimony admitted went to show the state of mind or intent of appellant at the time [of the commission of the crime being tried].” Commonwealth v. Green, 351 Pa.Super. 170, 177, 505 A.2d 321, 325 (1986) appeal denied, 513 Pa. 633, 520 A.2d 1384 (1987). In the case at bar, as in Green, the testimony concerning the crimes of terroristic threats and intimidation of witness^ related to events which were close in time to and involved the same persons as the drug deliveries. See id. Hence, this testimony would be admissible in a trial on the charges of drug delivery to show state of mind or intent of appellant.

Second, we find that the facts of each offense were easily separable and involved no complicated fact situations that could lead to confusion. The charges of October 15 merely involved the possession and delivery of controlled substances while the charges of October 17 focused on appellant threatening a potential witness. Accordingly, joining the two charges was not an abuse of discretion.

II.

Appellant’s next contention is that the trial court improperly denied appellant’s motion for disposition in lieu of trial or criminal punishment under 35 Pa.S.A. § 780-118(a). This claim is meritless.'

35 Pa.S.A. § 780-118(a) provides:

If a person charged with a nonviolent crime claims to be drug dependent or a drug abuser and prior to trial he requests appropriate treatment ... in lieu of criminal prosecution, a physician ... shall be appointed by the court to examine, if necessary, and to review the accused’s record and advise the government attorney, the accused and the court in writing setting forth that for the treatment and rehabilitation of the accused it would be preferable for the criminal charges to be held in abeyance or withdrawn in order to institute treatment for drug dependence or for the criminal charges to be prosecuted.

Id. Appellant argues that this provision mandates appointment of a physician to evaluate appellant’s status. We disagree.

‘Words and phrases shall be construed according to their common and approved usage____” 1 Pa.C.S.A. § 1903. We read the phrase “shall be appointed by the court to examine, if necessary, and to review the accused’s record ...” as affording the trial court complete discretion. This interpretation is further supported by the language of 35 Pa.S.A § 780-118(c) which provides that, when a physician is appointed, the trial court is not bound by that physician’s recommendation. Consequently, appellant’s second claim fails.

III.

Appellant next contends that the trial court improperly rejected the following proposed voir dire questions:

7. Have you or any member of your immediate family ever served on a grand jury panel or appeared as a witness before a grand jury?
16. Under the law, a [defendant may not be convicted if he is entrapped into committing a crime by either a law enforcement official or a person acting in cooperation with a law enforcement official. Entrapment occurs when either a law enforcement officer or a person acting in cooperation with a law enforcement official employs methods of persuasion or inducement which create a substantial risk that such offense will be committed by persons other than those who are ready to commit such an offense. Do you have any mental reservations about this supposition of law?
22. If you were a [defendant in a criminal case, would you be satisfied to have a person with your present beliefs[,] opinions and state of mind on a jury which would decide your guilt or innocence?

Appellant’s Brief at 41-42. This claim is meritless.

Voir dire examination is provided “to secure a competent, fair, impartial and unprejudiced jury.” Commonwealth v. Hoffman, 263 Pa.Super. 442, 446, 398 A.2d 658, 660 (1979) (citation omitted). It is well-settled that the scope of voir dire is within the discretion of the trial court, whose decisions will not be overturned absent a flagrant abuse of discretion. Commonwealth v. Richmond, 316 Pa.Super. 304, 309, 462 A.2d 1362, 1364-1365 (1983).

Question number seven inquires into the venireperson’s prior juiy experience. Our Supreme Court has previously held that “[t]here is no reasonable correlation between a juror’s prior jury service and his ability to render a fair and just verdict.... ” Commonwealth v. Johnson, 452 Pa. 130, 136, 305 A.2d 5, 8 (1973) (citation omitted). Since this question is irrelevant, it was properly disallowed.

Question sixteen, too, was properly rejected. The first part of appellant’s proposed question was an instruction on the defense of entrapment, clearly within the province of the court. See Commonwealth v. Perea, 252 Pa.Super. 272, 277, 381 A.2d 494, 497 (1977) (where the voir dire question covers matters within the province of the court to address in its instructions to the jury, then it is properly rejected). Moreover, appellant’s inquiry into whether one would “have any mental reservations” about the law of entrapment was improper. “It is ... well established that voir dire is not to be used to attempt to ascertain a prospective juror’s present impressions or attitudes.” Commonwealth v. Drew, 500 Pa. 585, 589, 459 A.2d 318, 320 (1983). This was, undoubtedly, the question’s purpose. Accordingly, question 16 was properly excluded from voir dire.

Finally, the trial court’s exclusion of question twenty-two was not an abuse of discretion. Question twenty-two, in essence, asks the venireperson “whether he would be a fair juror.” This question goes to the very purpose of voir dire: to ensure that each juror will render a fair verdict. Without demonstrating how the questions posed at voir dire were inadequate in this respect, appellant has no claim. Accordingly, we find no abuse of discretion.

IV.

Appellant alleges that the opening statement of the attorney for the Commonwealth deprived the defendant of a fair trial. Specifically, appellant objects to the following portions of appellee’s opening statement:

You know that there’s a drug problem nationwide, that New Castle hasn’t escaped that general drug problem----
You’ll learn ... that there was a large investigation in Lawrence County that extended really over about a two year period, from 1986 through 1988; that there were many agents and troopers involved in this investigation that came to a head on October 25, 1988, when there was a large-scale arrest of these people who had been investigated over those past two years. You’ll discover that this is one of the arrests that came out of that large bust from October of ’88....
After the third buy, these police officers went to the home of who he considered to be the source of Mr. Ritter, that was a name William Lanigan that you heard during voir dire, and they searched his home and they searched his grounds and they withdrew a substantial sum of money from that location____

Appellant’s Brief at 43. We find that the prosecutor’s opening statements were proper.

It has long been the rule in Pennsylvania that “[t]he opening statement of the prosecution should be limited to a statement of the facts which it intends to prove and the legitimate inferences deduced therefrom.” Commonwealth v. Duffey, 519 Pa. 348, 361, 548 A.2d 1178, 1184 (1988); Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975). “The opening statement serves to inform the jury how the case will develop, its background, and what will be attempted to be proven at trial.” Commonwealth v. Nolen, 390 Pa.Super. 346, 358, 568 A.2d 686, 693 (1989) (citation omitted), appeal granted 525 Pa. 644, 581 A.2d 570 (1990).

Regarding the first two statements, they provided the jury with a factual setting for the case and served to help them with any references to the undercover operation in the case. The third statement was properly related to what the Commonwealth attempted to prove at trial, that is, appellant’s criminal conspiracy with Lanigan. Consequently, these statements were proper.

V.

Appellant’s fifth contention is that the trial court committed error by barring evidence of appellant’s subjective reactions offered to support his defense of entrapment. After carefully reviewing the record and the parties’ briefs, we conclude that the trial court has adequately addressed and properly disposed of this contention in its opinion. Accordingly, we affirm the trial court’s resolution of this issue for the reasons stated therein.

VI.

Appellant next contends that the trial court erred in failing to rule that appellant was entrapped as a matter of law. We disagree.

The defense of entrapment is established when the defendant proves by a preponderance of the evidence that, for the purpose of obtaining evidence of the commission of an offense, a public law enforcement official or a person acting in cooperation with such an official:

(1) mak[es] knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employ[s] 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.

18 Pa.C.S.A. § 313.

“Whether an ‘entrapment has occurred is a question for the jury, unless the evidence points to only one conclusion, in which case it may be decided as a matter of law.’ ” Common wealth v. Wright, 396 Pa.Super. 276, 288, 578 A.2d 513, 519 (1990) (citing Commonwealth v. Clawson, 250 Pa.Super. 422, 425-426, 378 A.2d 1008, 1010 (1977)), appeal denied, 526 Pa. 648, 585 A.2d 468 (1991). In the case at hand, appellant contends that, as a matter of law, there was entrapment. In support of this claim, appellant points to Commonwealth v. Wright.

In Wright, we held that, as a matter of law, appellant was entrapped into selling unlawful controlled substances. Our decision was based upon testimony from both the defendant and the informant which demonstrated that (1) the informant re-kindled a friendship with defendant and used that friendship to encourage the defendant to deliver drugs to him; (2) the police, acting through the informant, fabricated stories to cause the defendant to believe the informant had no other way of obtaining the drugs; and (3) the defendant purchased the drugs with the informant’s money and received no benefit from selling the drugs. The situation in the case at hand, however, is easily distinguishable.

In the case at bar, informant’s friendship with appellant consisted of occasional mutual cocaine use. N.T., April 18, 1990 at 22-23. Unlike in Wright, there was no friendship which the police could use to entrap appellant. The police did no more than afford appellant an opportunity to make a sale of cocaine. Furthermore, the informant testified that it was appellant himself who initiated the drug transactions. N.T. at 6. Accordingly, we find that the evidence in the case at hand does not establish entrapment as a matter of law.

VII.

Appellant’s seventh claim consists of two arguments. First, appellant contends that the jury’s finding that there was no entrapment is against the weight of the evidence. We have held that “[a] court will grant a new trial on the ground that the verdict was against the weight of the evidence only where it ‘appear[s] from the record that the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice and to make the award of a new trial imperative, so that right may be given another opportunity to prevail.’ ” Commonwealth v. Laing, 310 Pa.Super. 105, 110, 456 A.2d 204, 207 (1983) (citing Commonwealth v. Barnhardt, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981)).

The law requires the defendant to prove, by a preponderance of the evidence, the elements of entrapment. See 18 Pa.C.S.A. § 313(b). In disposing of appellant’s sixth claim, we held that the issue of entrapment was properly submitted to the jury. Since the trier of fact is free to believe all, some or none of the evidence that was presented, it was reasonable for the jury to find that appellant was not entrapped. See Commonwealth v. Favinger, 358 Pa.Super. 245, 249-250, 516 A.2d 1386, 1388 (1986) (citation omitted), appeal denied, 516 Pa. 612, 531 A.2d 779 (1987). We are unable to find that the jury’s verdict was “so contrary to the evidence as to shock one’s sense of justice.” Consequently, the defense of entrapment was properly denied.

Appellant also argues that because the jury acquitted appellant of conspiracy to commit terroristic threats it is inconsistent to also find him guilty of the crime of terroristic threats and intimidation of witnesses. The crime of conspiracy, however, is separate and distinct from the underlying substantive crime. “[C]riminal conspiracy does not merge into the completed offense which is the object of the conspiracy.” Commonwealth v. Boerner, 281 Pa.Super. 505, 516, 422 A.2d 583, 589 (1980); Commonwealth v. Miller, 469 Pa. 24, 28, 364 A.2d 886, 887 (1976). Accordingly, the fact that appellant was convicted of one and acquitted of the other does not require a new trial.

VIII.

Appellant next claims that the evidence was insufficient to support the verdict. Specifically, appellant contends that the Commonwealth failed to produce sufficient evidence with which to (1) rebut the entrapment defense proved by appellant and (2) support its convictions of terroristic threats and intimidation of witnesses. As to the first part of this claim, we have already established that there was sufficient evidence for the jury to find that there was no entrapment.

Addressing the second part of this claim, the test for evaluating the sufficiency of the evidence in a criminal case is whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner and drawing all reasonable inferences therefrom upon which the court could properly have based its verdict, there is sufficient evidence to enable the trier of fact to find beyond a reasonable doubt every element of the crime of which appellant has been convicted. Commonwealth v. Davis, 491 Pa. 363, 369, 421 A.2d 179, 182 (1980) (citations omitted).

The offenses of terroristic threats and intimidation of witnesses are defined as follows:

A person is guilty of a misdemeanor of the first degree if he threatens to commit any crime of violence with intent to terrorize another ... or in reckless disregard of the risk of causing such terror____ 18 Pa.C.S.A. § 2706.
A person commits an offense if, with the intent to or with the knowledge that his conduct will obstruct, impede, impair, prevent or interfere with the administration of criminal justice, he intimidates or attempts to intimidate any witness or victim to: ... Withhold any testimony, information, document or thing relating to the commission of a crime, to an attorney representing a criminal defendant. 18 Pa. C.S.A. § 4952(a)(3).

We find that there was sufficient evidence to support the jury’s conviction of appellant for the crimes of terroristic threats and intimidation of the Commonwealth’s informant. Examining the evidence in the light most favorable to the Commonwealth, the following facts were adduced at trial:

Appellant told Ortiz that if he was an informant, he should leave town. Appellant also told Ortiz that if the individual involved in the buy was a police officer, he would kill Ortiz.

N.T., April 18, 1990 at 16. These facts were sufficient to enable the trier of fact to find beyond a reasonable doubt every element of the crimes at issue. Hence, the verdict was proper.

IX.

Appellant next argues that the trial court erred in rejecting appellant’s proposed jury instructions. Specifically, appellant argues that the trial court failed to give the complete instruction proposed by the appellant on (1) entrapment, (2) proposed jury instruction number three and (3) the Wiretapping and Electronic Surveillance Act. These claims are meritless.

The trial court is free to select its own form of expression so long as the subject is adequately, accurately and clearly presented to the jury. Commonwealth v. Smith, 511 Pa. 343, 355-356, 513 A.2d 1371, 1377 (1986), cert. denied 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). “A court’s charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury properly in its deliberations.” Commonwealth v. Person, 345 Pa.Super. 341, 345, 498 A.2d 432, 434 (1985) (citations omitted).

First, the trial court properly instructed the jury on the issue of entrapment:

[ A] police officer or a law enforcement official or personal [sic] acting in cooperation with the law enforcement official perpetrates an entrapment if, for the purpose of obtaining evidence of a crime, he [i]nduces or encourages another person to engage in any conduct constituting that crime by employing methods of persuasion or inducement which create a substantial risk that such a crime will be committed by that person.

N.T., April 23, 1990 at 129. This was an adequate and accurate statement of the law.

Appellant’s proposed jury instruction number three provided that:

[ T]he defendant has presented evidence that on September 17, 1988 he did not know whether Mr. Ortiz was cooperating with the authorities in an investigation against Mr. Ritter. Mr. Ritter testified he approached Mr. Ortiz with the intent to inform him that his friend, Scott, may be a law enforcement official.

Appellant’s Brief at 54. This statement serves as a summary of testimony produced at trial and as such is more properly introduced at closing argument. As stated above, the trial court is only required to instruct the jury on the law.

Appellant further maintains that the trial court failed to give instructions concerning the Wiretap Act. Specifically, appellant requested the charge to show that a wiretap could have been used, and that because a wiretap was not used in the investigation, it is more likely that appellant was unlawfully induced. Since the requested charge does not directly bear on the matters to be proven, an instruction to the jury was not required.

X.

Finally, appellant contends that the Commonwealth’s closing argument was improper on four bases:

A The prosecutor stated he was unable to admit the statement of witness Michael Ortiz to Trooper Fred Neal as evidence because it was hearsay and defense counsel knew it was inadmissible hearsay ...;
B. The prosecutor stated he was unable to ask witness Michael Ortiz whether Michael Ortiz purchased any controlled substances from Defendant Ritter on occasions other than those charged in the information. The prosecutor also suggested defense counsel could have asked Michael Ortiz the question as to whether he purchased controlled substances from Defendant Ritter in the past. This comment impermissibly shifted the burden of proof to the Defendant who has no burden to come forward with any evidence ...;
C. The Prosecutor stated the testimony of witness Michael Ortiz’s Wife would not be admissible and defense counsel knew the testimony of witness Michael Ortiz’s wife was inadmissible ...;
D. The prosecutor referred to the crimes in question as crimes against the citizens of the State/Commonwealth of Pennsylvania____

Appellant’s Brief at 55-56.

A prosecutor’s remarks during closing argument will seldom mandate a new trial. “Even where the language of a prosecutor is intemperate, uncalled for and improper, a new trial is not required unless ‘its unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.’ ” Commonwealth v. Burton, 491 Pa. 13, 22, 417 A.2d 611, 615 (1980) (citing Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975)) (citation omitted).

The first three statements to which the appellant takes exception were all made in reaction to remarks made in defense counsel’s closing argument. Since a prosecutor is generally entitled to rebut remarks made by defense counsel, Commonwealth v. Floyd, 506 Pa. 85, 93, 484 A.2d 365, 369 (1984) (“Because we view the remarks complained of as inspired by defense counsel’s own, the conduct complained of is not cause for reversal----”) (citations omitted), these statements were all permissible.

The first statement complained of explained that Ortiz’s statement to agent Neal was not submitted because it was ruled inadmissible hearsay. This statement was in direct response to appellant’s closing remark that “[i]f the statement that Mr. Neal took from Mr. Ortiz is consistent with Mr. Ortiz’s testimony, why didn’t agent Neal take the stand and tell you what Ortiz told him.” N.T., April 23, 1990 at 17.

The prosecutor’s second statement, relating to informant’s purchases on dates other than those at issue, was also proper. In his closing argument, defense counsel stated:

Now what did the Commonwealth give you to rebut that evidence? Let’s go through it. They failed to present one scintilla, nothing, no evidence of Mr. Ritter ever selling or distributing drugs other than July 11, August 1 and September 12.

N.T. at 45. Again, the prosecutor’s statement was clearly a rebuttal of a prior statement made by appellant.

The third statement by the prosecutor explained why the prosecutor failed to call Mrs. Ortiz, informant’s wife, to the stand. This, too, was in direct response to a closing remark by appellant:

Now, ask yourself this one, too, who was cooking dinner for Mr. Ortiz that night? Mrs. Ortiz. Why didn’t the Commonwealth call Mrs. Ortiz to the stand and say, oh, I remember Ken Ritter coming, he was with Bill Lanigan, and they scared the hell out of poor Michael. I Don’t know.

N.T. at 17.

The prosecutor’s fourth remark was also proper. In closing argument, the prosecutor made the following statement:

[W]hat was charged in this case was a crime against the Commonwealth. What is that mysterious big label, Commonwealth? Nothing more than every person who lives in this Commonwealth, who lives in our State of Pennsylvania. It’s a crime against the citizens of this state.

N.T. at 86. In Commonwealth v. Youngkin, 285 Pa.Super. 417, 427 A.2d 1356 (1981), the prosecutor, in closing, stated that “[t]his defendant, as all defendants who come before this Court, is charged with a crime against people, citizens not only-in the community, but the entire State of Pennsylvania____” Id., 285 Pa.Super. at 434, 427 A.2d at 1364 (citing N.T. at 566-567). This court found the remark to be proper. The statement in the instant case is identical to the above one. Accordingly, the statement did not warrant a new trial.

For all of the above-mentioned reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 4952(a)(3).

      . 18 Pa.C.S.A. § 2706.

      . 35 Pa.C.S.A. § 780-113(a)(30).

      . Appellant was found guilty of two counts of conspiracy to commit delivery of a controlled substance, 18 Pa.C.S.A. § 903(a)(1) and (2), which merged for sentencing purposes.

      . We note that appellant burdens this court with ten claims comprising two pages and thirty-two lines. This is in excess of Pa.R.A.P. 2116(a)’s single page, fifteen-line limit. Although we strongly disapprove of such a blatant disregard for appellate rules, in the interest of justice, we will nevertheless consider all of appellant’s claims.

      . Appellant's threats to the informant occurred only five days after appellant's final drug delivery.

      . Both the drug deliveries and the threats involved the police, the informant and appellant.

      . Although 18 Pa.C.S.A. § 313(b) provides that defendant "prove[] by a preponderance of the evidence that his conduct occurred in response to an entrapment!)]” we have held that the test for entrapment is an objective one. Commonwealth v. Weiskerger, 520 Pa. 305, 312, 554 A.2d 10, 14 (1989); Commonwealth v. Jones, 242 Pa.Super. 303, 311, 363 A.2d 1281, 1285 (1976). Hence, if the finder of fact is persuaded that the conduct of the police was such that there is a substantial risk that such an offense will be committed by persons other than those who are ready to commit it, then they must find that there was entrapment, regardless of defendant’s predisposition. See id.

      . Although this court in Wright purports to apply the objective test, it does consider the predisposition of the defendant by examining his motivation for selling the drugs. In the case at hand, we apply the purely objective test set forth by this court Commonwealth v. Jones, 242 Pa.Super. 303, 311, 363 A.2d 1281, 1285 (1976) ("Thus, the test for entrapment has shifted in emphasis from a consideration of the particular defendant’s readiness to commit crime, a subjective test, to an evaluation of the police conduct, an objective test, to determine whether there is a substantial risk that the offense will be committed by those innocently disposed. To determine whether an entrapment has been perpetrated in any particular case, therefore, the inquiry will focus on the conduct of the police and will not be concerned with the defendant’s prior criminal activity or other indicia of a predisposition to commit crime.” (footnotes omitted)). Our holding in Jones was subsequently adopted by Commonwealth v. Weiskerger, 520 Pa. 305, 554 A.2d 10 (1989).

      . See VI, supra.


source: Caselaw Access Project

author: FORD ELLIOTT, Judge: BROSKY, Judge,

license: Public Domain

text:
    615 A.2d 452
    COMMONWEALTH of Pennsylvania v. Randy L. HILFIGER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1992.
    Filed Oct. 29, 1992.

      James D. Casale, Williamsport, for appellant.
    Robert W. Ferrell, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before ROWLEY, President Judge, and FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from a judgment of sentence imposed August 27, 1991, following appellant’s conviction for a summary “hit and run” vehicular offense. On appeal, appellant raises two issues: 1) that the applicable statute of limitations had expired and prosecution was thus time barred, and 2) that the evidence was insufficient to support the verdict. For the reasons which follow, we find appellant’s arguments unconvincing and shall, therefore, affirm the judgment of sentence.

On the morning of August 28, 1990, complainant Kim A. Kane was driving her car to work on Route 15 in Lycoming County. Soon after entering upon Route 15, complainant noticed a worn and rusted, yellow Toyota pick-up truck following closely to the rear of her vehicle. Complainant testified that the truck then attempted to pass her automobile. She averred that the truck struck her left rear and side bumper and that she was partially run off the road. The truck did not stop, but continued driving on. Complainant witnessed the license plate number and gave pursuit until the vehicles reached a point where the truck’s driver arrived at his apparent destination. At this time complainant got a brief glimpse of the driver’s hair color as well as the side of his face but was unable to see his full countenance because the driver averted his gaze when he saw complainant. Complainant described the driver as hatless and wearing sunglasses.

Complainant did not approach the truck’s driver at that time but instead continued on to work where she telephoned state police. An initial check of the license number reported, ML01982, was fruitless. However, when so informed, complainant allowed that she could have been mistaken as to the “M” and that the first letter could have been a “W.” When the police then checked WL01982, it revealed a truck owned by Spook Hollow Auto Wreckers. Thus, the state police were aware of the truck’s owner, but not operator, on or about August 28, 1990.

The police conducted no further investigation until on or about October 1, 1990, when a state trooper observed the reported vehicle and followed it back to Spook Hollow Auto Wreckers. Upon the police officer’s questioning, appellant admitted that he usually drove the truck in question but denied driving it the day of the accident and specifically denied being involved in an accident. A citation against appellant was issued the following day, October 2, 1990.

At trial, complainant positively identified appellant. Her identification was based not only upon the viewing of appellant on the date of the accident but also upon the fact that complainant and appellant had seen each other several times thereafter in their respective vehicles; both parties said that they frequently travelled Route 15. Complainant testified that on most of those occasions, appellant recognized her and “gave her the finger.”

The presentation of appellant’s case included testimony by himself, his employer, and a co-worker. Appellant denied his involvement in any accident with complainant. He stated that he works from 8:00 a.m. until 5:00 p.m. and that he distinctly remembered being at work by 7:30 a.m. on the day in question. The accident occurred at approximately 8.T0 a.m. His employer and co-worker served to corroborate his story. They did admit that the yellow pick-up truck was sometimes driven on job-related chores during the work day. The employer could not remember whether appellant drove the truck on that day. The co-worker specifically remembered that he and appellant were running an errand in a different vehicle at the time of the accident. They also testified that appellant “always” wore a hat and almost never wore sunglasses.

Appellant’s first argument on appeal is that the statute of limitations on summary vehicular offenses had already expired when the citation was issued. The statute of limitations reads, in pertinent part:

§ 5553. Summary offenses involving vehicles
(a) General rule. — Except as provided in subsection (b) or (c), proceedings for summary offenses under Title 75 (relating to vehicles) must be commenced within 30 days after the commission of the alleged offense or within 30. days after the discovery of the commission of the offense or the identity of the offender, whichever is later, and not thereafter.
(e) Disposition of proceedings within two years. — No proceedings shall be held or action taken pursuant to a summary offense under Title 75 subsequent to two years after the commission of the offense.

42 Pa.C.S.A. § 5553(a) and (e). Essentially, appellant’s argument is that the police possessed sufficient information on August 28, 1990, to have been able to discover the identity of the operator and should be charged with that knowledge. Thus, the statute of limitations should have begun to run from that date and, therefore, would have expired by the time the citation was issued on October 2, 1990. This is an extrapolation from a ruling of this court in Commonwealth v. Matthews, 286 Pa.Super. 474, 429 A.2d 37 (1981), and cited by appellant. However, we believe that appellant’s suggested extension of that holding is unjustified.

In Matthews, on January 9, 1979, two cars side-swiped each other while driving on an icy road. The defendant’s automobile continued to travel for about half of a mile before it skidded off the road into a snow embankment. Before police arrived, the defendant and all of her passengers were transported to a local hospital. First, the investigating state trooper found the defendant’s driver’s license and registration in the disabled vehicle. Second, the defendant’s brother-in-law returned to the scene in order to assist police. Finally, the defendant’s husband went to the police headquarters to retrieve the defendant’s purse and was interviewed by the police. The defendant was served with her summons on February 1,1979, well beyond the 15-day limitations period in effect at that time. In Matthews, this court ruled that on January 9, the police were in possession of sufficient evidence from which the identity of the violator could be ascertained and that they were chargeable with knowledge of the defendant’s identity. Thus, the 15-day limit began to run from that date.

Instantly, we cannot say that the police had evidence on August 28, 1990, of the identity of appellant to a degree sufficient to trigger the running of the limitations period. All that the police had on that date was knowledge of a violation, a rough description of the violator, and knowledge of the ownership of the vehicle that was used in the violation. Even had the truck been registered to an individual rather than to a company, we could not say that knowledge of the owner is the same as knowledge of the operator. Moreover, if appellant is asking this court to impose some sort of due diligence requirement on the Commonwealth pertaining to the conduct of police investigations of summary vehicular offenses, we will not do so. It is clear from subsection (e) of 42 Pa.C.S.A. § 5553, which bars all prosecutions dating more than two years from the violation date, that the legislature has anticipated the potential of lengthy police investigations and has allowed the Commonwealth two years to conclude such investigations, identify and prosecute the violator. Furthermore, this court has previously interpreted this section to require not only that prosecution be commenced within two years, but completed within this time frame. See Commonwealth v. Quinn, 405 Pa.Super. 487, 592 A.2d 1316 (1991), allocatur denied, 529 Pa. 619, 600 A.2d 535 (1991), and Commonwealth v. Markley, 375 Pa.Super. 231, 544 A.2d 72 (1988).

Appellant’s second argument challenges the evidence as being insufficient to support the verdict. We note our standard of review:

[ W]hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt.... The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence ... Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered ... Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence. (Citations omitted)

Commonwealth v. Griscavage, 512 Pa. 540, 542, 517 A.2d 1256, 1257 (1986) (citations omitted in original), quoting Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979).

The argument contained in appellant’s brief merely points to the places in the trial transcript where his own and his witnesses’ testimony either contradicts complainant’s testimony or demonstrates that appellant could not have been the person involved in the accident, and that such evidence should have served to raise a reasonable doubt. What appellant ignores is that the trier of fact is free to disbelieve this testimony in full. The trier of fact may simply have chosen to believe the account given by the complainant. This is precisely what the trial court, as trier of fact, apparently did, as witnessed by its opinion of June 11,1991, rejecting appellant’s argument for reconsideration based on a sufficiency of evidence ground. We likewise agree that the complainant’s testimony sufficiently established the elements of the crime of which appellant was convicted. Complainant testified that an accident occurred in which her vehicle was struck (Notes of testimony, 3/20/91, page 5). She testified that her vehicle was being driven or otherwise attended at the time of the accident (Notes of testimony, 3/20/91, pages 4-5). She testified that her car was damaged as a result (Notes of testimony, 3/20/91, page 7). She positively identified appellant as the operator of the other vehicle (Notes of testimony, 3/20/91, pages 7-8). Finally, complainant testified that at no time did appellant stop and identify himself or offer assistance (Notes of testimony, 3/20/91, page 6). Thus, a prima facie case under 75 Pa.C.S.A. § 3743 was made out by the Commonwealth. We find that appellant’s second argument affords him no relief.

Accordingly, the judgment of sentence August 27, 1991, is hereby affirmed. Jurisdiction relinquished.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting.

I dissent.

The statute of limitations for summary offenses under the motor vehicle code are set forth at 42 Pa.C.S. § 5553. This section states in relevant part:

(a) General Rule. — Except as provided in subsection (b) or (c), proceedings for summary offenses under Title 75 (relating to vehicles) must be commenced within 30 days after the commission of the alleged offense or within 30 days after the discovery of the commission of the offense or the identity of the offender, whichever is later, and not thereafter.

In the present case the citation was not filed until more than 30 days after the commission of the offense. In fact, the trial court found that the citation was filed four days after the “30 day window” had closed. However, the trial court found that the f.tatute of limitations had not been compromised since the citation was filed within thirty days of the discovery that appellant had been driving the vehicle in question.

Obviously the present case hinges upon a question of statutory interpretation, and once again we are reminded that no matter how simply worded a statute may appear at first glance or how carefully worded during drafting, real life scenarios will present themselves that create true dilemmas of judicial interpretation. In the present case one such troubling point is presented with the phrase “whichever is later” appearing in the last sentence of subsection (a). From a literal reading this phrase pairs two possibilities together with the later one acting as the trigger date. But does the phrase refer to the discovery of the commission of the offense as opposed to the discovery of the identity of the offender, the two most immediately preceding possibilities, or does this phrase refer to the commission of the offense as opposed to the discovery of either the commission of the offense or the identity of the offender? The phrase “whichever is later” is logically tied to the disjunctive “or.” Yet it is not immediately apparent to which “or” it was meant to be tied.

In either case, the section has clearly superfluous language, and, thus, violates at least one premise of statutory construction, that the legislature is deemed not to use unnecessary or superfluous language. There is superfluous language because clearly it is impossible to discover either the commission of the offense or the identity of the offender prior to the actual commission of the offense. Thus, there is no need to tie the limitations period to the actual commission of the offense at all if validity is to be given to the discovery phrase. The majority admits the statute is poorly worded and notes that this section has been construed to allow the running of the period on any of the three happenings. This merely shows that judicial interpretation is necessary to effectuate its purpose as its own wording clearly will not.

There are few cases that deal with the statute in question. However, at least one of those suggests that the statute may have been running prior to an actual determination of who was driving the vehicle at the time in question. It is this case that appellant relies principally upon. In Commonwealth v. Matthews, 286 Pa.Super. 474, 429 A.2d 37 (1981), we considered a case where a woman was ultimately charged with the identical offense in question here. There, in snowy conditions, two vehicles “side swiped” one another. The appellant’s vehicle continued on for approximately six tenths of a mile at which time it skidded into a snow bank. All of the occupants of the vehicle were taken to a local hospital prior to the arrival of a state policeman. The investigating trooper discovered appellant’s driver’s license and registration in the vehicle. At the same time appellant and her husband requested that appellant’s brother-in-law go to the scene of the accident to assist the police; and later that night, appellant’s husband retrieved appellant’s purse from the police barracks and while there answered certain questions. Appellant was ultimately charged with failure to stop, however, the citation was filed some three weeks after the accident. At the time of that accident the statute provided only fifteen days for the filing of citations. Nevertheless, appellant was convicted over protestations that the charges were untimely filed. We reversed on appeal.

In consideration of the limitations question we commented that the Commonwealth had not asserted that it had ascertained appellant’s identity as the driver only fifteen days prior to the filing of the citation. We then suggested that even if that were the case it would be immaterial to the extent the Commonwealth could have discovered the appellant’s identity as the driver prior to that point. We stated: “the trooper was provided with sufficient evidence from the driver’s license, vehicle registration, and interview with appellant’s husband to have initiated timely proceedings.” 286 Pa.Super. at 478, 429 A.2d at 39. This commentary is interesting because to give the statute the same literal reading the trial court gave it here, where the statute would not start until after the discovery of the commission of the offense or the discovery of the identity of the offender, whichever is later, would mean that the statutory period would not have begun to run until the discovery of the identity of the driver. Yet the panel comments that there was sufficient information from which “timely proceedings” could have been initiated, suggesting a belief that the period was properly measured from the date of the commission of the offense with a possible excuse of time if the identity of the offender was undiscoverable. From a logical standpoint, the panel’s commentary suggests that they had construed the statute to mean that discovery of the first of either the commission of the offense or the identity of the offender would be sufficient to start the statute running or that they believed the period will begin to run if the identity of the offender is discoverable with the exercise of due diligence, notwithstanding actual discovery. Either approach would lead us to find that the present action is time barred. However, the majority chooses not to follow the lead offered in Matthews while, in my opinion, failing to distinguish that precedent from the present case.

The majority simply cites to the fact that in Matthews the panel stated that the police had sufficient information from which the identity of the violator could be ascertained while opining that in the present case the police did not. I fail to see a significant difference in the knowledge possessed in the present case as opposed to the Matthews case. In Matthews the police knew which vehicle was involved in the violation and who the vehicle was registered to. They also found the defendant’s purse and driver’s license in the car. However, although that may have been evidence that the defendant was in the vehicle at the time in question, it could not be considered conclusive evidence of who was operating it at that time. Still the panel found that this information created a sufficient basis from which the identity of the operator could be determined. In the present case the police discovered within one day of the offense the owner of the vehicle in question and while not knowing who the operator was, they possessed at least a description of that person. Indeed, in Matthews the police did not even have a description of the offender. Yet they were deemed armed with sufficient knowledge from which that could be discovered. I believe the same is true in the present case.

The majority further refuses to impose a due diligence standard upon the Commonwealth with respect to discovering the identity of an offender although it would seem quite arguable that Matthews has already done so. My concern with not construing a due diligence standard within the statute is that by failing to do so we turn what appears to be a finite period of thirty days into an indefinite period hinging upon an unpredictable event, the discovering of the identity of the offender. Not only is this an unpredictable event, it is capable of control by the law enforcement authorities. That is, the period could be prolonged due to no other factor than a lack of diligent investigation. It seems completely inconsistent with the concept of a statute of limitations that the period be capable of control by those meant to be constrained by it. It seems further inconsistent with the premise that statutes of limitation are to be liberally construed in favor of the defendant and against the Commonwealth. Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307 (1985), reversed on other grounds, Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985). It hardly appears to be a liberal construction in favor of the defendant to have a rule that conceivably allows a limitation period to last indefinitely under a certain set of circumstances. The present case illustrates this point quite aptly.

In the present case, although the commission of the offense was discovered contemporaneously with its commission, the identity of the offender remained unknown. Trooper Garhart got the only significant lead to determining the identity of the offender on the day of, or within a day or two of, the commission of the offense. At that time Trooper Garhart had the address of Spook Hollow Auto Wreckers. To the extent the auto was not owned by an individual, it would seem logical that it would require either a phone call or visit to Spook Hollow to determine who had been driving the vehicle at the time in question. However, after Trooper Garhart received notice that the vehicle believed to be involved in the incident was owned by Spook Hollow, he took no further steps to ascertain the identity of the driver. Quite fortuitously, Trooper Garhart happened across a vehicle fitting the description given him by Ms. Kane at which time Trooper Garhart decided to investigate. However, there is no indication that absent the chance encounter with appellant Trooper Garhart would have made any significant effort to determine who was driving the vehicle. After all, no further action had been taken for some thirty days. It is entirely possible that had Trooper Garhart not observed appellant at the time he did he may have happened across appellant at some future point in time. However, to allow the limitations period to begin to run at whatever point that may be seemingly runs contrary to the element of certainty that a statute of limitations is supposed to provide. Furthermore, what if Trooper Garhart had a more pressing matter to attend at the time he observed appellant and was unable to stop appellant at that time? Would the statute await the next time Trooper Garhart happened across appellant? The potential problems with such an application are endless.

The majority suggests that the period will not be left indefinite because of the operation of 42 Pa.C.S. § 5553. The majority states “[i]t is clear from subsection (e) of 42 Pa. C.S.A. § 5553, which bars all prosecutions dating more than two years from the violation date, that the legislature has anticipated the potential of lengthy police investigations and has allowed the Commonwealth two years to conclude such investigations, identify and prosecute the violator.” Majority Op. at pp. 455, 456. This is clearly a misapplication or misinterpretation of the purpose of 42 Pa.C.S. § 5553(e). This subsection acts as a form of general bar to action after two years from the date the offense was committed. As construed in Commonwealth v. Markley, 375 Pa.Super. 231, 544 A.2d 72 (1988), the entire disposition of the case must be completed within two years of the commission of the offense, including the disposition of post-trial motions if appealed to Common Pleas and imposition of sentence. Failure to do so will result in the dismissal of the case. This subsection clearly cannot be used to extend the investigation for two years as that would make disposition of the entire case impossible. Instead this period acts similar to Rule 1100, but with expanded application, where the citation must be filed, a hearing had and disposition of any appeal to Common Pleas including post-trial motions, should it be necessary, and the imposition of sentence, all within two years. It further makes little sense to have a thirty day statute laid out in § 5553(b) only to have an overriding two year statute laid out in subsection (e). We should not assume that our legislature is that inept at drafting statutes of limitation.

It should be remembered that a statute of limitations represents a balancing of the interests of the people of the Commonwealth and that of an accused. The majority’s interpretation gives very little regard to the interests and rights of the accused by multiplying the supposedly clear mandate of 30 days some twenty four times to two years. The majority does this even though the need to do so is somewhat dubious. Even if the due diligence interpretation suggested in Matthews, and endorsed by myself, is followed, the period would be extended when it was not possible, in the exercise of due diligence, to determine the identity of the offender. This extension could last, presumably, as long as the practical constraints of the two year limitation would allow. The interpretation suggested in Matthews and argued for here simply requires that the identity be discovered, when discoverable, and the citation filed, within the thirty day period set forth in the statute. If, as argued by the majority, the police have more pressing matters to investigate the argument should be made to the legislature to extend the period set forth in the statute. Furthermore, it is generally recognized that the time allowed to commence a criminal case is proportionate to the perceived severity of the offense. By effectively extending the limitations period to two years the majority has, in essence, equated leaving the scene of a motor vehicle accident to a multitude of other felony and misdemeanor offenses. With the exception of murder and manslaughter, involuntary deviate sexual intercourse, arson, burglary, robbery, forgery and perjury, the prevailing time limit for commencing prosecution is two years. See, 42 Pa.C.S. §§ 5551 & 5552. There is simply little reason to treat leaving the scene of an accident the same as the many felony charges that currently are governed by the two year statute. •

For the above reasons, I dissent.

      . 75 Pa.C.S.A. § 3743. "Hit and run” is a colloquial description of the violation. Technically, a violator must not leave the scene of an accident involving an attended vehicle, without giving information and rendering aid as per § 3744, and in which damage to a vehicle or other property occurred.

      . A widely recognized gesture of hostile contempt.

      . Subsection (a) is somewhat poorly drafted. The initial clause describes three optional happenstances which cause the statute to begin to run. Unfortunately, the modifying clause, "whichever is later,” is comparative in form. With three or more options, the superlative form, "whichever is latest,” should more properly have been employed. The use of the comparative is confusing because it implies a choice between two options rather than among three. Nevertheless, we have previously considered this section to present three happenstances from which the limitation period could begin to run rather than two. See Commonwealth v. Larson, 299 Pa.Super. 252, 445 A.2d 550 (1982).

      . Markley has been partially overruled by Quinn. Quinn held that the statute of limitations described at 42 Pa.C.S.A. § 5553(e) is tolled where prosecution cannot be completed because of delay directly attributable to the accused.

      . The following exchange between defense counsel and Trooper Gar-hart on cross examination:
      Q. On that day, until you saw that vehicle on Route 220, had you gone to Spook Hollow to investigate that vehicle?
      A. No.
      Q. You knew who the owner was, Spook Hollow?
      A. Um-hum.
      Q. You did nothing until you saw the vehicle on October first?
      A. That's correct.

      . Notably, the period was doubled from its earlier time requirement of fifteen days. Arguably, this extension was made for the very reason that it presented an unreasonable amount of time for police officers to investigate in light of their customary workloads.


author: DEL SOLE, Judge.

text:
    615 A.2d 459
    Christine POWERS, Appellee, v. Ronald POWERS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 18, 1992.
    Filed Nov. 4, 1992.

      John A. Knorr, Pittsburgh, for appellant.
    David J. Slesnick, Pittsburgh, for appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   DEL SOLE, Judge.

Following the entry of a final order effectuating the distribution of the parties’ marital property in a bifurcated proceeding, Appellant (husband) filed this appeal. He questions Appellee (wife’s) need for alimony pendente lite which she was awarded in the amount of $150.00 per month, the court’s valuation of the parties’ pensions and the court’s ultimate distribution scheme. Finding no abuse of discretion or error of law, we affirm the trial court’s order.

The first complaint by husband concerns the award of alimony pendente lite to wife. He contends that such an award was improper in this case where wife was not a “dependent” spouse and could not demonstrate the requisite “need.” Husband supports this claim by evidence demonstrating that the parties had no children and wife was not a full time homemaker, but rather was engaged in gainful employment throughout the marriage. Absent the inability to recognize one’s earning potential because of a delayed entry to the work force to care for one’s family, a disability or a lack or an education, husband argues their can be no dependency.

Initially, we note that although husband wrongly did not raise this issue in his exceptions to the court’s order of equitable distribution, he did include this claim in the exceptions he originally filed to the master’s recommended award of alimony pendente lite and in his statement of matters complained of on appeal. Because the alimony pendente lite claim was not appealable at the time it was entered, Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985) and because he did provide the court with an opportunity to consider the issue by his filing of exceptions to the master’s recommended order, we will consider the matter. However we wish to stress that the better practice would be for counsel to again include the claim in exceptions filed to the recommended equitable distribution award when it is believed that the trial court erred in failing to recognize that alimony pendente lite was improperly awarded and in failing to alter the equitable distribution accordingly.

It is true that a spouse seeking alimony pendente lite who has sufficient assets to meet the needs of the pending litigation and who is equally situated with the other spouse to maintain or defend the action, will not be awarded alimony pendente lite. Pangallo v. Pangallo, 329 Pa.Super. 25, 477 A.2d 885 (1984). Krakovsky v. Krakovsky, 400 Pa.Super. 260, 583 A.2d 485 (1990). The purpose of granting such interim relief is to prevent one party to the action from being financially disadvantaged. Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599 (1984). However, the fact that the party requesting such relief has worked and earned a sizable income throughout the marriage does not mean that that party will be equally situated with the other spouse to maintain or defend the pending action. Along with the petitioner’s separate estate and income, the trial court must also consider the respondent’s ability to pay, the general character, situation and surroundings of the parties. Barner v. Barner, 364 Pa.Super. 1, 527 A.2d 122 (1987). Where as here, husband’s wages greatly exceeded wife’s for the last two years and where husband, an attorney, had not incurred counsel fees during the two year period of litigation, we cannot say that the trial court abused its discretion in awarding wife $150.00 per month in alimony pendente lite. Orr v. Orr, 315 Pa.Super. 168, 461 A.2d 850 (1983).

Husband next asks us to address the trial court’s valuation of the parties’ pensions. With respect to this issue husband recounts that the court was presented with stipulations as to the parties’ dates of birth, dates of employments, marriage date, separation date, and the parties’ estimated monthly pension benefit. Husband asserts that although the court had before it the appropriate information it “went awry, failing to properly follow the directives established in DeMasi,” DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987). Specifically Appellant asserts that wife’s pension was undervalued when the trial court used an improper denominator in the coverture fraction which was utilized in formulating the pension figure. Husband argues that the denominator should represent the time period from the date of participation in the plan up to the date of separation, rather than the time period from the date of hire until the anticipated date of retirement at age 65. Although Appellant presents this court with calculations which he suggests were appropriate to determine the pension value and makes a specific argument that the court’s error was founded on the incorrect figure for the denominator, this is not the argument that was presented before the trial court.

The specific objection Appellant made to the trial court regarding the court’s calculation of the pension benefits was that the appropriate date of valuation should have been the date of the hearing, rather than the date of separation because any increase in value would be marital property. Interestingly, the only discussion concerning coverture fractions in husband’s Brief or Reply Brief presented to the trial corat concern the denominator to be used in calculating husband’s pension and therein he stated that the “denominator to be utilized to obtain the coverture fraction should be the length of time from commencement of participation in the retirement plan until the earliest time when the defendant can begin to receive the pension benefits, namely age 65.”

The trial court in its opinion states that “husband agrees with the court’s method of calculating Wife’s pension benefit using the information provided as of the date of separation. However Husband feels the court should have calculated a value of the pension as of the date of trial.” (Emphasis added.) The court ruled that because husband did not introduce a report closer to the date of trial for estimating the monthly benefit payable to wife, it would use the only figures of record in making its calculations. The court also dismissed husband’s calculations of his pension noting that in his case the denominator would be the same as the numerator since husband was terminated from his employment at the same time as the separation began.

On appeal husband now forsakes the argument he made before the trial court regarding the valuation date for wife’s pension and, in fact, states in his Brief on appeal that “defined benefit pension plans must be valued as of the date of separation.” Further the specific argument he now makes with respect to the valuation of wife’s pension was not made before the trial court, but rather at that time he agreed with the trial court’s method of calculating wife’s pension. Because the matters now raised by husband were not first presented to the trial court, and in fact, husband has taken an alternative position before this court, we decline to exercise our review of the trial court’s valuation procedure. See Eannarino v. Eannarino, 294 Pa.Super. 81, 439 A.2d 760 (1982). Because of this ruling we also dismiss husband’s related claim that the total value of the marital estate must be revalued because of what he terms the “miscalculation” of the pension values.

Finally husband alleges that the ultimate distribution must be reconsidered because the trial court failed to give full consideration to all the relevant factors, to properly analyze them and to provide a full explanation for the court’s decision.

Although the trial court did not set forth its rationale in an exhaustive opinion, the court did provide the parties and this court with the reasons for its decision. The trial court after considering detailed testimony from the parties, stated, in making its decision, that it considered the “relevant 3502 factors of the Domestic Relations Code in distributing the marital assets.” The court ultimately focused on husband’s higher earnings, wife’s limited ability to enhance her income, and husband’s ability to acquire future assets in shaping its award which granted wife slightly more than 50% of the marital assets. Because we find no reason to suggest that the court ignored any relevant factors, and because the court has provided just reason for its disposition of the marital property, we can find no abuse of the trial court’s discretion and we affirm its award. Williamson v. Williamson, 402 Pa.Super.276, 586 A.2d 967 (1991).

Order affirmed.


text:
    615 A.2d 735
    COMMONWEALTH of Pennsylvania v. Robert Lee AARON, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Argued June 17, 1992.
    Filed Sept. 30, 1992.

      Joseph P. Burt, Erie, for appellant (at 1013 & 1019PGH91).
    James A Pitonyak, Erie, for appellant (at 1415PGH91).
    William A. Dopierala, Asst. Dist. Atty., Erie, for Com., appellee.

      Before WIEAND, DEL SOLE and HESTER, JJ.
   DEL SOLE, Judge.

APPEALS AT NOS. 1013 AND 1019 PGH 1991.

Appellant takes these appeals from the sentences imposed after a jury found him guilty of escape, involuntary deviate sexual intercourse, rape, statutory rape, incest, corruption of minors, indecent assault and endangering the welfare of children. The sexual offense charges relate to Appellants actions over a period of years involving his natural daughter, who was nine years old at the time of trial. On appeal Appellant sets forth four issues based upon events which occurred before or at his trial which he claims require that he be awarded a new trial. Our review causes us to conclude that Appellant is not entitled to the relief he seeks, and for the reasons which follow, we affirm the Judgments of Sentence.

Appellant, in his first issue, asks us to consider whether the trial court erred or abused its discretion by granting the Commonwealth’s motion to consolidate for trial sex offense charges and an escape charge. The informations setting forth the sex offense charges were filed first. A later charge, relating to an escape attempt which Appellant made as a constable was transporting him back from the preliminary hearing, was subsequently filed, prompting the Commonwealth’s motion.

In his Brief on this issue Appellant acknowledges that consolidation of the charges was proper in that evidence of both the escape and sex offense charges would be admissible in separate trials for each. He further concedes that the Commonwealth’s request for consolidated was filed was “within the time frame allotted” under Pa.R.Crim.P. 1127(B). Thus, despite the manner in which Appellant frames his issue, he does not dispute that the motion was properly granted by the trial court. However, in the body of his argument, Appellant asserts that the trial court erred in not complying “with the clearly implicated intent of Rule 1127”. This rule which sets forth the procedure for joinder provides:

B. Procedure.
(1) Written notice that offenses or defendants charged in separate indictments or informations will be tried together shall be served on the defendant at or before arraignment. A copy of the notice shall be filed with the clerk of court.
(2) When notice has not been given under paragraph B(l), any party may move to consolidate for trial separate indictments or informations, which motion must ordinarily be included in the omnibus pretrial motion.

Because the Commonwealth’s motion to consolidate was timely filed within the period of time for pretrial motions on the escape charge, Appellant contends that the court when granting the motion to consolidate should have provided for a trial date based upon the escape charge and revoked the previously scheduled trial date on the sex offense charges. Appellant asserts that the court’s failure to reschedule trial after granting the consolidation motion “resulted in an unfair prejudice to the defendant’s case in that the trial commenced just five (5) days following the court’s grant.” Thus, Appellant’s claim is not that the motion was improperly granted, but that the trial court wrongly failed to reschedule his trial date to a later time after granting the motion.

Although Appellant makes this allegation before this court, we fail to find evidence in the record that Appellant made a demand on the trial court to reschedule his trial based upon the argument he now presents. Further, Appellant fails to advise us in what particular manner he was prejudiced by the court’s action. He does not indicate that his counsel was in need of more time to prepare a defense to the escape charges. Appellant testified in his own behalf on the charges defending his actions by stating that he fled because he was scared and panicked, but when he came to his senses and was sorry for what he had done, he turned around to walk to the Constable who had been chasing him. Appellant does not allege that there was further evidence he could have offered to support this defense that he was unable to bring forth because of short time between the consolidation and trial. Accordingly, we cannot rule that the trial court abused its discretion in consolidating the charges and in proceeding to trial in this matter.

The second claim made by Appellant also concerns a pre-trial matter. Appellant contends that it was an error for the court to permit an amendment to the criminal information just prior to the commencement of trial. The information at the time of trial alleged that Appellant had committed the alleged sexual acts against his minor daughter “at various dates and times until May 20, 1990.” It further alleged that these offenses occurred at a location on Maple Street in McKean Township. At the time of trial the Commonwealth sought, and the trial court granted, an amendment to the information which provided that the incidents occurred at the Maple Street address and “various other addresses in Erie County.” The Commonwealth sought the amendment to conform the information with the testimony the victim offered at the preliminary hearing and the fact that Appellant resided in a number of places over a period of time. Appellant’s counsel objected and responded that she was prepared to defend with respect to dates between 1987 and 1990, beginning when Appellant lived with a woman named Lori, who was also accused by the child of sexual abuse. However, defense counsel argued that she was unprepared to defend against acts which occurred prior to 1987 because those dates were not addressed at the preliminary hearing. The Commonwealth countered by offering the child’s preliminary hearing testimony that some acts of abuse occurred in a swimming pool and by noting that prior to 1987 Appellant lived in a home with a swimming pool located somewhere other than Maple Street.

Although Appellant’s counsel correctly recounts that the victim did not state at the preliminary hearing that the abuse occurred in her father’s backyard pool and that it could have been a different swimming pool, we nevertheless find support for the trial court’s ruling in this matter. In Commonwealth v. King, 227 Pa.Super. 168, 323 A.2d 260 (1974) when considering whether a trial court erred in granting an amendment which changed thé time during which an alleged drug sale was said to have occurred, the court stated:

We are of the opinion the lower court was correct in granting the requested amendment to the indictment. The defendant failed to attack the validity of the transcript of the preliminary hearing at any time before the indictment. He also failed to file a motion to quash the indictment because of vagueness or indefiniteness or to file a petition for a Bill of Particulars requesting the Commonwealth to state more specifically the time of day when [the] alleged crime occurred. It was too late for defendant to ask for this specifically at time of trial. However, the trial court, although it was not obliged to do so, did allow a two-hour recess of the trial in order to give the defense additional time to locate and interview witnesses concerning a 1:00 p.m. alibi. Defense counsel was also offered the service of the County detective [’s] office to locate and subpoena any such witnesses for the defense in order to assure their presence in court on the following day of the trial.

We likewise find no error in the present case. The information only listed “sometime prior to May 20, 1990” as the time frame during which these incidents occurred, and the child victim, who was unable to pinpoint dates at the preliminary hearing, did make reference to actions which took place in a swimming pool. Through the child’s testimony it was also clear that Appellant moved on numerous occasions during the relevant years. We thus find support for the trial court’s conclusion that Appellant was on notice that the incidents may have occurred prior to 1987. This coupled with the fact that the defense did not seek a Bill of Particulars, it was given extra time by the court to prepare its case and offered the services of the District Attorney’s office in tracking down an additional witness, supports our conclusion that Appellant’s claim must fail.

Appellant next seeks review of the trial court’s ruling regarding proposed testimony of Dr. Schierberl which Appellant claims would have impeached the victims testimony. Appellant submits that this testimony was wrongly excluded based upon the psychologist-patient privilege statute, 42 Pa. C.S.A. § 5944, and that this error was compounded by the court’s refusal to require the doctor to take the stand and assert the privilege pursuant to the decision in Commonwealth v. Sims, 513 Pa. 366, 521 A.2d 391 (1987).

We find it unnecessary on the facts of this court to reach the issue as presented by Appellant because we conclude, after a review of the record, that the doctor’s testimony would not have, as proposed, impeached testimony given by the victim.

Appellant’s counsel offered the following reasons for the doctor’s testimony:

I would note for the record, that the purpose for calling Dr. Schierberl at all is that Dr. Schierberl in the course of his psychological examination of Tiffany which was done at the request of Children’s Services, took statements from Tiffany about what had occurred. One of the statements that he took is in direct contradiction to Tiffany’s own testimony. Specifically, Dr. Schierberl would testify that Tiffany told him that on one occasion her friend, Dawn, spent the night with her at her father’s house, that in the course of that evening, Tiffany ran from Lori who was the defendant’s girlfriend at the time because Lori wanted to engage her in sexual activity. That in lieu of engaging Tiffany in sexual activity, Lori than brought Dawn into the bed and engaged in sexual activity with her. That is inconsistent with what Tiffany testified that Dawn never spent the night there and that she never told anybody that Dawn had been sexually active with either her father or with Lori.
N.T. 3/8/91 at 4.

Contrary to defense counsel’s characterization of her testimony, the victim when testifying did not state that she told no one about the incident with her friend, Dawn. The victim was only asked whether she told her caseworker, a woman by the name of Debbie, that Dawn stayed with her. The child was questioned:

Q. Okay. Do you have a little friend by the name of Dawn.
A. Yes.
Q. And did she stay overnight at your dad’s house with you a couple of times?
A. No.
Q. Okay. Do you remember telling Debbie, your caseworker, that Dawn stayed with you one time and that Lori pulled her into bed when you ran away from her because you didn’t want to watch her private parts. Do you remember telling her that?
A. No. No.
Q. Okay. And you don’t remember Dawn ever spending the night and that happening?
A. No. I know for sure I didn’t tell her.
Q. You absolutely positive about that?
A. Yeah.
N.T. 3/6/91 at 133

Appellant’s counsel in an attempt to impeach this testimony did later question the caseworker, Debbie, regarding any conversations she may have heard in which the victim spoke of an incident involving her friend, Dawn. However, the caseworker responded in the negative and added that she was not in “that interview” but was told about it by a doctor. The court asked the jury to disregard the latter statement, since it was based on hearsay. Id. at 191.

Because the victim did not testify regarding conversations with the doctor, but only answered questions relating to her conversations with her caseworker, the doctor’s testimony could not be used to impeach her. The doctor’s proposed testimony would therefore be irrelevant and, accordingly, issues regarding the application of the phychologist/patient privilege and questions of the right to have the doctor assert that privilege, if applicable, in front of the jury, are not appropriate matters for our review in this case.

Lastly Appellant seeks a new trial based upon statements made by an expert which he characterizes as prejudicial because they supported the veracity of the victim. Again, after a review of the record we find no reversible error. Appellant’s counsel objected to one statement made by Dr. Reilly who had performed a medical examination on the victim. At trial the following occurred:

Q. Now, doctor, did she indicate any other parts of her body or anything else that was done to any other areas of her privates?
A. Yes. She also said that she thought he put his penis in that area, and so when they say that area, we always make sure, “Can you identify which area is your vaginal [sic] of your privates and which area of your privates is your anus,” so that they can identify those two areas. And so I generally do that during the physical exam and then I reask the questions because then I can show them exactly what area unless they know themselves that there is a separate area for the vagina and a separate area for the anus. And so she said very truthfully, that, um, she felt that her father had put—
N.T. 3/8/91 at 20.

At this point appellant’s counsel asked to approach the bench, made an objection to the doctor’s “testimony that the child truthfully told her something,” Id, and requested a mistrial. After the court had the question and answer reread by the court reporter, the judge denied counsel’s request, but issued a strong cautionary instruction to the jury to disregard the witness’ statement. The jury was told:

You took the oath as jurors that you would follow my instructions and follow the law, and sometimes, it’s very hard to disregard something that you may have heard or picked up. If I tell you to disregard it, you must disregard it. This witness, with all due respect to her and her profession, used the word — the child testified or stated something truthfully. She’s unable to do that and you should not consider that under any circumstances. I am not saying that the witness is not qualified to do that. It is not to be considered by you in any way, shape or form that that statement was made to her in a truthful fashion. There are limitations and we would very strictly instruct you to do that. I can’t caution you enough. Everyone is entitled to a fair trial and if you disregard that instruction, you are not giving the defendant a fair trial. With that in mind— someone have a problem? Again, please follow those instructions. I know it’s difficult, but you must do that.

Id. at 23.

While the statement made by the witness was improper because it attempted to invade the province of the jury and inject the witness’s opinion of the victim’s veracity, See Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), it must be viewed in context. The statement was obviously an inadvertent slip and the witness was interrupted before completing the sentence. The court’s timely cautionary instructions closely followed providing the jury with a clear command to disregard the remark. Under the circumstances presented, we conclude that the trial court correctly ruled that Appellant was not prejudiced by this statement made by the witness.

For the reasons provided above, we dismiss Appellant’s claims of error and affirm the Judgments of Sentence.

Judgments of Sentence affirmed.

APPEAL AT NO. 1415 PITTSBURGH 1991

Appellant was sentenced on May 1, 1991 for convictions relating to the sexual abuse of his daughter and an escape attempt. His appeals from those sentences were filed June 11, 1991 and are the subject of the above opinion at docket numbers 1013 and 1019 Pittsburgh 1991. After filing these appeals Appellant filed, pro se, a document captioned “Post-Verdict Motion: After Discovered Evidence.” The motion was dated July 1, 1991 and was sent by certified mail to the Court of Common Pleas. Appellant’s motion was denied on July 12, 1991 in a order which read:

AND NOW, to-wit, this 12th day of July, 1991, it is hereby ordered, adjudged and decreed that for a variety of reasons, including but not limited to the fact that an appeal has been . filed, the motion for a new hearing on after-discovered evidence is denied.

The instant appeal was taken from this July 12th order.

Pennsylvania Rule of Criminal Procedure 1123(d) which concerns motions for after-discovered evidence, provides that “[i]f an appeal is pending, the court may grant such motion only upon remand of the case.” The Rules of Appellate procedure also provide restrictions of a trial court’s power to proceed further in a matter once an appeal has been taken. See Pa.R.A.P., Rule 1701, 42 Pa.C.S.A. Based upon these rules and the fact that an appeal was pending with this court when Appellant filed his motion with the trial court, we conclude that the trial court properly refused to consider the motion before it.

Because the court was without authority to act on the motion, we do not read its order of denial as a decision based upon the merits of Appellant’s request for relief. We now, after resolving the matters raised by Appellant in his direct appeals from his Judgments of Sentence, remand this matter to the trial court for a ruling on Appellant’s motion.

Order denying the request for relief based upon the relevant procedural rules is affirmed. Matter remanded to the trial court for resolution of Appellant’s motion on its merits.

Jurisdiction relinquished.


author: FORD ELLIOTT, Judge:

text:
    615 A.2d 740
    COMMONWEALTH of Pennsylvania v. Ruffino ROSARIO, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 24, 1992.
    Filed Oct. 27, 1992.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.

      Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before JOHNSON, FORD ELLIOTT and HOFFMAN, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from an order of the Philadelphia County Court of Common Pleas, reversing the Municipal Court’s Order which granted appellant’s Motion to Suppress physical evidence. We quash the appeal.

The facts relevant to a coherent disposition of the appeal are simply stated. Appellant was arrested on October 30, 1989, for possession of a controlled substance. Appellant filed a motion to suppress physical evidence, which was granted following a hearing before the Honorable Georganne V. Daher of the Philadelphia Municipal Court. The Commonwealth appealed the suppression order to the Philadelphia Court of Common Pleas where the Honorable Edward E. Russell reversed the suppression order and remanded the case for trial. This appeal followed.

The Commonwealth contends that appellant’s appeal must be quashed, as the order in question is interlocutory. Before we look at the substance of appellant’s claim, we must determine whether this court has jurisdiction to entertain the instant appeal.

In his reply to the Commonwealth’s motion to quash, appellant argues that the appeal is proper in two respects. First, appellant contends that the underlying appeal was allowed pursuant to 42 Pa.C.S.A. § 932 whereby the court of common pleas was exercising its appellate jurisdiction to review a municipal court determination. Acting in its appellate capacity, a court of common pleas has jurisdiction to review any “final order” of a municipal court; the final order in this case being the motion to suppress physical evidence. The finality of the order in question is appellant’s second point of contention. Appellant points out that the Commonwealth concedes the order on appeal to the common pleas court was final, since it prohibited further prosecution of the case. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). As a result, appellant alleges that the initial order which was final when appealed to the common pleas court could not thereafter become interlocutory when reversed by that “inferior” appellate court. It is appellant’s belief that once an order is subject to appeal, it remains appealable through each successive level of appellate review. Therefore, even though the court of common pleas may vacate a final order on review from the municipal court, an appeal must still be allowed to this court fi"om the court of common pleas because this court’s review is the next step in the appellate review process.

While this is an interesting argument, it ignores that the appellate review of any court is a jurisdictional question defined by rule or statute. Appellate review is granted to the court of common pleas and to this court through the operation of different statutes; neither of which purport to extend jurisdiction from one appellate level to the other.

True enough, the common pleas court has jurisdiction to review an order of the municipal court, under both 42 Pa.C.S.A. § 932 and § 1123(a)(2). Section 932 addresses appeals from final orders to the courts of common pleas from minor judiciary determinations, in general.

§ 932. Appeals from minor judiciary
Except as otherwise prescribed by any general rule adopted pursuant to section 503 (relating to reassignment of matters), each court of common pleas shall have exclusive jurisdiction of appeals from final orders of the minor judiciary established within the judicial district.
1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978.

Section 1123 defines the jurisdiction and venue of the Philadelphia Municipal Court, specifically, and sets out in subsection (a)(2) the particular type of appellate review available to defendants following final determinations in municipal court.

§ 1123. Jurisdiction and venue
(a) General rule. — Except as otherwise prescribed by any general rule adopted pursuant to section 503 (relating to reassignment of matters), the Philadelphia Municipal Court shall have jurisdiction of the following matters:
(2) ... In cases under this paragraph the defendant shall have no right of trial by jury in the municipal court, but shall have the right of appeal for trial de novo, including the right of trial by jury, to the court of common pleas.

See Commonwealth v. White, 228 Pa.Super. 23, 324 A.2d 469 (1974).

In Commonwealth v. Poindexter, 248 Pa.Super. 564, 375 A.2d 384 (1977), this court further recognized in a footnote that appeal may also be sought from municipal court to common pleas by the issuance of a Writ of Certiorari.

Section 26 of the Schedule to Article 5 of the Pennsylvania Constitution provides: ‘Unless and until changed by rule of the Supreme Court, in addition to the right of appeal under section nine of this article, the judges of the courts of common pleas ... shall have power to issue writs of certiorari to the municipal court in the City of Philadelphia----’ Although the Supreme Court, by Pennsylvania Rule of Criminal Procedure 159(e), has suspended the Act of Dec. 2, 1968, P.L. 1137, No. 355, § 6, 42 P.S. § 3006, the act which previously authorized courts of common pleas to issue writs of certiorari to minor judiciary courts, the Supreme Court has not specifically abolished certiorari. We must therefore assume that the courts of common pleas retain the power to issue writs of certiorari to the Philadelphia Municipal Court in non-summary criminal cases.

Id., 248 Pa.Super. at 567, 375 A.2d at 386,

In sum, the nature and scope of the review by the court of common pleas of orders entered by the municipal court is carefully delineated by statute.

However, the appellate review permitted in this court is a separate and distinct matter governed by different statutory authority. Under 42 Pa.C.S.A. § 742, the appellate jurisdiction of the Superior Court is set out as follows:

§ 742. Appeals from courts of common pleas
The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.
1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978.

An order of the court of common pleas is appealable to this court if final; and a final order for purposes of appellate review to this court is one which serves to put the litigants out of court by either ending the litigation or entirely disposing of the case. Commonwealth v. Swartz, 397 Pa.Super. 157, 579 A.2d 978 (1990).

Instantly, the action of the court of common pleas in reversing the grant of suppression vacated the final order upon which review was premised. The new order is clearly interlocutory as it did not end litigation or dispose of the case, but rather returns appellant to the position he would have been in had the municipal court denied his motion to suppress. The order as it stands at this point is not final. Therefore, this court is without jurisdiction to entertain an appeal as of right. Appellant will have an opportunity to question the validity of the denial of his motion to suppress at the conclusion of trial.

Motion granted; appeal quashed.